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delaware/11253089.json

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+"{\"id\": \"11253089\", \"name\": \"Richard M. LEACH, Appellant, v. BOARD OF EDUCATION OF the NEW CASTLE COUNTY VOCATIONAL-TECHNICAL SCHOOL DISTRICT, Appellee\", \"name_abbreviation\": \"Leach v. Board of Education\", \"decision_date\": \"1972-07-25\", \"docket_number\": \"\", \"first_page\": \"582\", \"last_page\": \"585\", \"citations\": \"295 A.2d 582\", \"volume\": \"295\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Delaware Superior Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T23:01:25.107622+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Richard M. LEACH, Appellant, v. BOARD OF EDUCATION OF the NEW CASTLE COUNTY VOCATIONAL-TECHNICAL SCHOOL DISTRICT, Appellee.\", \"head_matter\": \"Richard M. LEACH, Appellant, v. BOARD OF EDUCATION OF the NEW CASTLE COUNTY VOCATIONAL-TECHNICAL SCHOOL DISTRICT, Appellee.\\nSuperior Court of Delaware, New Castle.\\nJuly 25, 1972.\\nJohn P. Sinclair, of Potter, Anderson & Corroon, Wilmington, for appellant.\\nSheldon N. Sandler, of Bader, Dorsey & Kreshtool, Wilmington, for appellee.\", \"word_count\": \"1580\", \"char_count\": \"9616\", \"text\": \"STIFTEL, President Judge.\\nAppellant's teaching contract was terminated by Appellee after a hearing because of wilful and persistent insubordination and misconduct in office. He appeals to this Court.\\nWas the finding of the Board supported by substantial evidence, as required by 14 Del.C. \\u00a7 1414? If substan tial evidence exists, this Court cannot substitute its judgment for the judgment of the Board; and, as a matter of public policy, findings of the Board of Education after a public hearing should not be set aside unless the record clearly contains no substantial evidence supporting the Board's findings. Board of Education, Laurel Special School District v. Shockley, 2 Storey 237, 155 A.2d 323, 327, 328.\\nA review of the record shows no arbitrary or capricious act of the Board. It shows substantial evidence for its action.\\nAppellant was a recalcitrant teacher. He was seldom compliant; had no respect for his immediate superiors and frequently demonstrated this. He wrote caustic and sarcastic letters to his superiors and consistently and persistently tried to embarrass them.\\nThe last incident for which he was \\\"guillotined\\\" is a typical example of his troublesome behavior.\\nOn October 6, 1971, a posted bulletin notified teachers that the place of their meeting had been changed from the cafeteria to two classrooms. Academic teachers were to meet in Room C-109 and Vocational teachers were to meet in C-102-104. Because some separate problems were to he discussed at each meeting, it was decided to hold two separate meetings rather than one. Prior to the meeting, the administrators had met for forty-five minutes to discuss the agenda and the Principal, Mr. Bronson, was to visit each meeting.\\nImmediately before- the meeting, Mr. Leach spread the word that all teachers, Vocational and Academic, were to meet together. Consequently, when Mr. Mozzani arrived for the Academic meeting, only three teachers were in the room. The rest were with Mr. Herr. Mr. Cinaglia, head of the Faculty Policy Committee, and other teachers wanted the meeting together but it was Mr. Leach who took the responsibility of informing Mr. Herr that the faculty should be together, when nobody else spoke up.\\nWhen Mr. Bronson, the Principal, appeared, he was irate and non-plussed at the combined meeting, against the administrative decision. Mr. Leach added a little fuel to the fire by saying to him: \\\"It is ridiculous for me to go down there and listen to Mr. Mozzani telling me one thing while Mr. Herr is up here telling them something else . . .\\\". Mr. Bronson responded: \\\"I will have you know you are not running this school. I am.\\\", and then left the room. Leach, instead of going to the Academic teachers' meeting, went to Bronson's office to further discuss the matter with him because Leach felt Bronson did not understand the teachers' position.\\nMr. Leach's conduct in getting all the teachers to go to one room rather than two was wilful and disruptive. It was a developed pattern of undetermining confidence in his superiors. Although other teachers may have, at times, behaved similarly, nevertheless, it was Leach's conduct that persisted and disunited.\\nA short time before the above incident, Leach took issue with a parking directive. He and Mr. Cinaglia had arrived at their respective meetings thirty-five minutes late and put identical questions to the respective Vice-Principals \\u2014 namely, whether it was a request or an order about parking in a certain area of the parking lot. Even though Mr. Herr and Mr. Mozzani used different words, they clearly meant that the teachers obey the directive in limiting their parking. Leach argued with Mr. Mozzani, his Vice-Principal, that he did not have to comply since Mr. Herr's directive was different from Mozzani's. The order pertaining to parking was changed by the administration soon thereafter, but Mr. Leach's conduct clearly evidenced wilful disrespect.\\nWhen Mr. Leach came to Delaware in 1969, he did not come highly recommended, hut he impressed the Delcastle administrators when he candidly admitted that he formerly had had problems with administrators ; and consequently, he was hired for the 1969-70 school year.\\nIn September, 1970, Principal Bronson prepared and reviewed with Mr. Leach an evaluation letter which, in pertinent part, reads:\\n\\\"Too often during the past year you made selfish decisions that showed irresponsible and unprofessional conduct in the eyes of the administration. . Despite your 'thing' about administrators there is no workable alternative for this year other than to work together harmoniously . . .\\\".\\nThere were other Leach incidents that disturbed the administration. On January 14, 1971, the day before Martin Luther King's birthday, the administration announced at a faculty meeting that January 15 would be a holiday. Previously, teachers had been instructed to come to school. Leach was opposed to the change and after the faculty meeting was adjourned by the Superintendent, Leach attempted to reconvene the meeting to discuss the matter further. Leach, himself, explained what he did as follows:\\n\\\". . . I got up and I said, 'Wait a minute. Do we want to talk about it?\\nOn the holiday, Mr. Leach and a number of other teachers went to school and refused to treat it as a holiday. This was done partly at the instigation of Mr. Leach.\\nIn September, 1971, Mr. Leach, in a supercilious vein, called the Principal to come down and unlock a door for him, saying he was following the administrative orders concerning this particular door, which was to be the door for entering and leaving the building. Actually, there was another door nearby which was open that could have been used. Also, there were custodians at hand with keys. Also, Mr. Leach called Vice Principal Mozzani in the early part of the 1971-72 school year and told him to come to Mr. Leach's classroom and straighten out the chairs, which had been turned around by the night-school class. Mr. Mozzani politely suggested that Mr. Leach contact the custodian instead.\\nThe evaluation letter of September 1, 1971, aptly describes Mr. Leach when it says, in effect, that his potential will only be realized at Delcastle \\\". . . after you have matured enough to stop rebelling for the sake of rebelling, . . .\\\".\\nThere were additional incidents of disrespect for the system. Leach ignored requests to promptly submit attendance records. He summarily dismissed a student from class with a note to the Vice-Principal that the student was never to come to his class again and that, \\\". There will be no punishment that will make me change my mind.\\\" In reality, the student did return to his class and he helped the student immeasurably, for which he was commended. But Mr. Leach continued to rebel for rebellion's sake and the record clearly demonstrates this.\\nThe Board was not limited to consideration of incidents that occurred after his rehiring contract for the 1971-72 season. It had the right to consider appellant's non-cooperation throughout the period of his school employment. Redcay v. Board of Education, 13 N.J.L. 369, 33 A.2d 120 (1943); Pearson v. Board of Education Community Unit School Dist. No. 5, 12 Ill.App.2d 44, 138 N.E.2d 326, 331 (1956). His history is one of wilful and persistent insubordination. The Board had a right to do what it did on the evidence before it. It was substantial.\\nDefendant also argues that the Board's findings and conclusions should be reversed because of denial of due process. He claims that no fair hearing could be held when the Board is the judge, jury and prosecutor. In Board of Education, Laurel Special School District v. Shockley, supra, the Supreme Court rejected the same contention by implication. The denial of due process in such situations has been generally rejected. See 2 Davis, On Administrative Law, p. 175; 1 Am.Jur.2d 873, \\u00a7 78. Due process requires a fair hearing. This record shows there was one.\\nThe dismissal is affirmed.\\nIt is so ordered.\\n14 Del.C. \\u00a7 1414 reads as follows :\\n\\\"Judicial Review\\n\\\"A decision of the board shall be final and conclusive unless, within ten days after a copy thereof has been received by the teacher, the teacher appeals to the Superior Court for the county in which the teacher was employed. In case of every such appeal, the cause shall be determined by the Court from the record which shall include a certified copy of the evidence, findings and the decision of the board, without the aid of a jury. The notice of appeal and all other matters regulating the appeal shall be in the form and according to the procedure as shall be provided by the Rules of the Superior Court. The Court shall decide all relevant questions of law and all other matters involved, and shall sustain any board action, findings and conclusions supported by substantial evidence. The Court may reverse, affirm or modify the decision of the board or remand the cause to the board for a rehearing. In case any cause shall be remanded to the board for a rehearing, the procedure and the rights of all parties to such cause shall be the same as in the case of the original hearing before the board. If the decision is in favor of the teacher, he shall be reinstated and shall receive all salary lost as a result of his temporary dismissal or suspension.\\\"\"}"

delaware/11316179.json

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+"{\"id\": \"11316179\", \"name\": \"Raymond S. PUSEY, Bertha P. Pusey, Sotiria Pappas, Donald Derrickson, Doris Downs, Margaret Downs, Jeanne A. Booth, C.E. Toppin, Richard Derrickson, Norma Lee Derrickson, Evelyn Thoroughgood, John Salin, Frances Salin, Charles E. Schwartz, Prissilla Smith and Patrick Loughran, Appellants Below, Appellants, v. DELAWARE ALCOHOLIC BEVERAGE CONTROL COMMISSION and John J. Corrigan, Watson K. Ayers, George Coyle, Robert Medd and William B. Mitten, in their capacity as Delaware Alcoholic Beverage Control Commission, and Route 13, Inc., Appellees Below, Appellees\", \"name_abbreviation\": \"Pusey v. Delaware Alcoholic Beverage Control Commission\", \"decision_date\": \"1991-08-05\", \"docket_number\": \"\", \"first_page\": \"1367\", \"last_page\": \"1372\", \"citations\": \"596 A.2d 1367\", \"volume\": \"596\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Delaware Supreme Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T17:00:10.723062+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before CHRISTIE, C.J., MOORE and WALSH, JJ.\", \"parties\": \"Raymond S. PUSEY, Bertha P. Pusey, Sotiria Pappas, Donald Derrickson, Doris Downs, Margaret Downs, Jeanne A. Booth, C.E. Toppin, Richard Derrickson, Norma Lee Derrickson, Evelyn Thoroughgood, John Salin, Frances Salin, Charles E. Schwartz, Prissilla Smith and Patrick Loughran, Appellants Below, Appellants, v. DELAWARE ALCOHOLIC BEVERAGE CONTROL COMMISSION and John J. Corrigan, Watson K. Ayers, George Coyle, Robert Medd and William B. Mitten, in their capacity as Delaware Alcoholic Beverage Control Commission, and Route 13, Inc., Appellees Below, Appellees.\", \"head_matter\": \"Raymond S. PUSEY, Bertha P. Pusey, Sotiria Pappas, Donald Derrickson, Doris Downs, Margaret Downs, Jeanne A. Booth, C.E. Toppin, Richard Derrickson, Norma Lee Derrickson, Evelyn Thoroughgood, John Salin, Frances Salin, Charles E. Schwartz, Prissilla Smith and Patrick Loughran, Appellants Below, Appellants, v. DELAWARE ALCOHOLIC BEVERAGE CONTROL COMMISSION and John J. Corrigan, Watson K. Ayers, George Coyle, Robert Medd and William B. Mitten, in their capacity as Delaware Alcoholic Beverage Control Commission, and Route 13, Inc., Appellees Below, Appellees.\\nSupreme Court of Delaware.\\nSubmitted: May 14, 1991.\\nDecided: Aug. 5, 1991.\\nJames A. Fuqua, Jr. (argued), Fuqua, Yori & Rogers, Georgetown, for appellants.\\nHenry A. Heiman (argued), and Darrell J. Baker, Heiman, Aber & Goldlust, Wilmington, for appellee Route 13, Inc.\\nBefore CHRISTIE, C.J., MOORE and WALSH, JJ.\", \"word_count\": \"2904\", \"char_count\": \"18516\", \"text\": \"WALSH, Justice:\\nThis is an appeal from a decision of the Superior Court which affirmed the granting of a liquor license by the Delaware Alcohol Beverage Control Commission (the \\\"Commission\\\"). The appellants-protestants contend that it was an abuse of discretion for the Commission to deny them access to certain confidential financial information filed by the applicant and relied upon by the Commission in granting the license. The Superior Court, in affirming the Commission, ruled that the applicant's confidentiality interest outweighed the protestants' entitlement to view the evidence.\\nWe conclude the Superior Court erred, as a matter of law, in upholding the Commission's order of confidentiality with respect to evidence upon which the Commission relies in a protested application. Accordingly, we reverse.\\nI\\nOn January 13, 1989, Route 13, Inc. t/a The Surfside Restaurant filed an application for a restaurant liquor license for an establishment located in Rehoboth Beach, Delaware. Raymond and Bertha Pusey, along with several of their neighbors, filed a written protest with the Commission, and a public hearing was scheduled for March 23, 1989.\\nPrior to the hearing, the protestants, through counsel, sought permission from the Commission to review certain personal financial information submitted by the principals of Route 13, Inc. as part of their application for a liquor license. This information, submitted on forms prescribed by the Commission, is required of every applicant for a liquor license. The Commission informed the protestants that although they could examine the file, the personal financial information of the applicant was confidential. The protestants then requested that a subpoena duces tecum be issued to Route 13, Inc. for production of financial statements. After the subpoena was issued, Route 13, Inc. filed a timely motion to quash the subpoena.\\nBy the date of the hearing on the application, the Commission had not acted on the subpoena and the protestants' attorney requested that the hearing be postponed until he had the opportunity to review the requested financial information. The Commission decided to continue with the hearing and requested that the parties submit memoranda on the disclosure issue. The protestants were thus denied the opportunity to question the applicants on the content of the financial statements submitted to the Commission.\\nThe Commission approved the issuance of a liquor license to Route 13, Inc. by written decision on September 12,1989. In its decision, the Commission noted that it had reviewed the applicant's financial records \\\"and there was no indication of financial irresponsibility.\\\" In rejecting the protestants' request for access to that data, however, the Commission ruled that the protestants \\\"have simply not offered any significant public interest justification to counter-balance the invasion of personal privacy on behalf of the applicants.\\\" In its ruling, the Commission relied upon an opin ion of the Attorney General that an applicant's financial statements may not be disclosed to the general public under the Delaware Freedom of Information Act. 29 Del. C. \\u00a7 10001-10005.\\nOn appeal, the Superior Court endorsed the Commission's denial of access to the financial reports. The Superior Court held that disclosure would impair the ability of the Commission to obtain such information in the future and that the Commission has the authority to determine the financial responsibility of applicants without sharing relevant information with those opposing the application. This appeal followed.\\nII\\nThe Delaware Liquor Control Act provides that an individual seeking to sell alcohol to the public must file an application for a license with the Commission. 4 Del. C. \\u00a7 522. If the Commission is inclined to grant the application and at least ten people from the neighborhood where the applicant seeks to sell alcohol file a protest to the issuance of the license within ten days of the filing of the application, then a hearing must be held to consider the application. 4 Del.C. \\u00a7 541(b). Thus, \\\"only when the Commission has determined, except for the filing of a protest, to grant an application, is it provided that the Commission must give the persons making the protest an opportunity to present their objections.\\\" Demarie v. Delaware Alcoholic Beverage Comm'n, Del.Supr., 143 A.2d 119, 121 (1958).\\nThe Commission must conduct a hearing and keep a record of the proceedings. 4 Del.C. \\u00a7 541(b). The record must include the evidence presented, the Commission's findings of fact, and the Commission's decision. Id. Following the hearing, the Commission must issue a written decision which states how it \\\"construed the law and applied it to the facts.\\\" Id.\\nHearings before an administrative agency in Delaware, including the Commission, are governed by the Administrative Procedures Act (the \\\"Act\\\"). 29 Del.C. \\u00a7 10161(1). When the issuance of a license is contested, the Act requires the administrative body to hold a formal evidentiary hearing. 29 Del.C. \\u00a7 10124. The Act affords an array of powers to insure that the evidentiary hearing is conducted fairly and efficiently. See Blue Cross & Blue Shield of Delaware v. Elliott, Del.Super., 479 A.2d 843, 851 (1984). These include the power to issue subpoenas, administer oaths to witnesses, exclude irrelevant information, limit unduly repetitive proof, cause interrogatories to issue and depositions to be taken or hold prehearing conferences for the settlement or simplification of the issues. 29 Del.C. \\u00a7 10125. While the Commission is not required to use these powers in any proceeding, they are designed and available to ensure that each party has a full and fair opportunity to present evidence to the Commission. See Blue Cross, 479 A.2d at 851.\\nAn applicant for a liquor license must submit an assortment of information to the Commission in support of its application. These include general information such as the location of the establishment, nature of the establishment and the applicability of local zoning ordinances. Applicants are also required to submit information relating to the ownership of the establishment and personal data concerning criminal convictions as well as financial background. Although the general information filed by the applicant is deemed public, the Commission has determined that information about an applicant's criminal record or financial background is confidential.\\nThe Commission is authorized by statute to refuse the issuance of a license on various grounds including that \\\"[t]he applicant appears to be financially irresponsible.\\\" 4 Del. C. \\u00a7 543(b)(3). Thus, to grant a liquor license, the Commission must be convinced that the applicant is financially responsible. Delaware Alcoholic Beverage Wholesalers v. Ayers, Del. Supr., 504 A.2d 1077, 1081 (1986). Since the required financial filings by the applicant are directed to this requirement, the Commission is necessarily obligated to examine this data incident to its granting or denial of a license. \\\"The Commission must have a reasonable basis for believing that a statutory ground for refusal exists in order to reject an application on that ground, and such reasonable basis must appear in the record if the rejection is to be sustained on appeal.\\\" Lyons v. Delaware Liquor Contm'n, Del.Super., 58 A.2d 889, 892 (1948). Similarly, where the granting of a license implies the satisfaction of statutory grounds, the record must also reflect consideration of all elements supporting the issuance of a license.\\nHere, the Superior Court affirmed the decision of the Commission denying access because the financial information sought by the protestants was confidential and disclosure of the information might impair the Commission's ability to obtain such information in the future. Whatever may have been the level of confidentiality at the time of the filing of the financial data once the matter became a protested application, the Commission's policy goals were required to yield to the due process rights of the parties. As a party, the protestants were entitled to a full and fair hearing on the Commission's decision to grant the applicant a liquor license. See Mitchell v. DABCC, Del.Super., 193 A.2d 294, rev'd on other grounds, Del.Supr., 196 A.2d 410 (1960). An administrative hearing is a quasi-judicial proceeding, in which the parties are entitled to due process. This entitlement includes the right to cross-examine a party on any information which may be considered by the tribunal in reaching an administrative decision. See Blue Cross, 479 A.2d at 843.\\nAn administrative agency may not conduct a hearing in which it withholds information from the parties involved in that hearing on the ground that it is confidential and simultaneously use that information as a basis for its decision. 2 Am.Jur.2d Administrative Law \\u00a7 390, at 196 (1962). The United States Supreme Court has emphasized the importance of party access to evidence:\\nCertain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the government's case must be disclosed to the individual so that he has an opportunity to show it is untrue.... We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the Sixth Amendment which provides that in all criminal cases the accused shall enjoy the right \\\"to be confronted with the witnesses against him.\\\" This Court has been zealous to protect this right from erosion. It has spoken out not only in criminal cases, but also in all types of cases where administrative and regulatory actions were under scrutiny.\\nGreene v. McElroy, 360 U.S. 474, 496-97, 79 S.Ct. 1400, 1413-14, 3 L.Ed.2d 1377 (1959) (emphasis added).\\nIn Greene, the Secretary of Defense revoked the security clearance of an employee of a government contractor. At a hearing before the Industrial Employment Review Board, the employee was questioned about his association with several known communists. The government presented no witnesses, but the questions posed during the hearing indicated the Board's reliance on confidential reports which were not made available to the employee. The Supreme Court determined that because the employee had not had the opportunity to review these reports the administrative procedure in this case \\\"failed to comport with . traditional ideas of fair procedure.\\\" Id. at 508, 79 S.Ct. at 1419. Accordingly, it reversed the revocation of the employee's security clearance.\\nA similar issue was addressed in Bonanza Trucking Corp. v. U.S., CIT, 642 F.Supp. 1170 (1986). In Bonanza, the Commissioner of Customs revoked the license of a company authorized to operate a container station after the president was convicted of several felonies. Even though the president resigned following his conviction, the District Director of Customs determined that he had continued to function \\\"as a de facto officer of Bonanza Trucking Corp. after his resignation.\\\" Id. at 1171. Bonanza requested a hearing on the revocation of its license and also asked the District Director to produce any documents supporting its allegations. Bonanza's request for a hearing was granted, but the District Director refused to produce any documentation. At the hearing, Bonanza's counsel discovered that the custom's official who issued the revocation had relied in part upon an internal investigative report. Bonanza's counsel's request to review this report was denied. Following the hearing, the Commissioner of Customs, based on the recommendation of the hearing officer, affirmed the revocation.\\nBonanza appealed to the Court of International Trade which ruled that it was prejudicial for the hearing officer to withhold information upon which it clearly relied upon in affirming the revocation. Bonanza, 642 F.Supp. at 1174-75. The court ruled that the law requires \\\"meaningful cross-examination\\\" in administrative procedures of this nature and that denying Bonanza's counsel access to the internal reports served to deny Bonanza the right to meaningful cross-examination. Id. at 1176.\\nIn the present case, the protestants were denied access to the confidential financial information filed by the applicants. This denial clearly prevented the protestants from engaging in meaningful cross-examination. Since the Commission is required to find as an element of the granting of the license that the applicant is financially responsible (and it did so in this case), it cannot foreclose the examination of the very evidence the Commission considered in reaching that conclusion. The Commission abused its discretion in denying access in this case.\\nFurthermore, we find unpersuasive the argument which suggests that disclosure of confidential financial information might somehow impair the Commission's ability to obtain such information in the future. It is assumed that individuals who submit applications for liquor licenses respond truthfully to all questions. If, however, they do not, the statute provides that the Commission may refuse to grant a license if an applicant makes false statements to the Commission. This is sanction enough and our decision today should in no way impair the Commission's ability to obtain information. 4 Del.C. \\u00a7 543(b)(5).\\nThus, we find that while the financial information submitted to the Commission by the applicant is confidential for administrative purposes, that confidentiality must yield to the right of a party in a contested hearing to examine all the evidence upon which the Commission bases its decision.\\nIll\\nAlthough we reverse the Superior Court's ruling, we note that the disputed financial data became available upon the filing of the administrative record in the Superior Court and counsel for the protestants has seen it. Under 4 Del.C. \\u00a7 541(c), the Superior Court has the option of receiving additional evidence to supplement the record, as an alternative to remanding the matter to the Commission for further action. See Caras v. Delaware Liquor Comm'n, Del.Super., 90 A.2d 492, 494 (1952). We leave to the Superior Court the selection of which remedy should be pursued to afford relief to the appellants by reason of the denial of access to the financial information.\\nREVERSED and REMANDED.\\n. 4 DelC. \\u00a7 541(b) provides:\\nIf the Commission has determined to grant an application, but before the issuance of the license applied for and within 10 days of the filing of the application, a protest against the issuance of the license, signed by at least 10 residents of the neighborhood where the license is to operate, has been filed with the Commission, then a hearing shall be held to consider the application and protest. Ten days' notice of the hearing, together with a recital of the protest, shall be sent by registered mail to the address of the applicant, and a notice of the time of the hearing shall be sent to each of the persons who signed the protest; provided, however, that it shall be sufficient to send notice to the attorneys of those who are represented by legal counsel. The hearing shall be conducted by the Commission and a record of the hearing shall be made and kept by the Commission. The record shall include the evidence, the Commission's findings of fact, the Commission's decision, and a brief statement of the reasons therefor. The Commission's decision shall show the manner in which the Commission construed the law and applied it to the facts.\\n. The appellees, as did the Commission, place reliance upon an advisory opinion issued by the Attorney General. See \\\"Public Access to Files of Alcohol Beverage Control Commission,\\\" opinion # 87-1031, November 4, 1987. In this advisory opinion, the Attorney General was asked to determine the extent to which the public is permitted access to files of the Commission. The Attorney General concluded that while the Delaware Freedom of Information Act, 29 DeLC. \\u00a7 10001-10005, provides the public access to the records of State agencies, \\\"financial data has traditionally been considered private and intimate and so this common meaning leads us to conclude that the financial statements required to be submitted are confidential and exempted from public inspection.\\\"\\nThe applicability of this ruling is limited. The Attorney General's opinion governs the access to confidential files by the public at-large, not by parties to a contested proceeding seeking information which the Commission is statutorily required to rely upon in deciding whether to grant or deny a license.\\n. 4 DeLC. \\u00a7 541(c) provides:\\nThe Commission's decision shall be final and conclusive unless within 10 days after notice thereof a party to such hearing shall appeal to the Superior Court of the county in which the license would operate. In every appeal the cause shall be decided by the Court from the record, without the aid of a jury; and the Court may affirm, reverse or modify the Commission's decision. The Commission's findings of fact shall not be set aside unless the Court determines that the record contains no substantial evidence that would reasonably support the findings. If the Court finds that additional evidence should be taken, the Court may take the additional evidence or remand the cause to the Commission for completion of the record. If the Court finds that the Commission has made an error of law, the Court shall reverse or modify the Commission's decision and render an appropriate judgment.\"}"

delaware/11350483.json

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+"{\"id\": \"11350483\", \"name\": \"Anthony ZUPPO, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee\", \"name_abbreviation\": \"Zuppo v. State\", \"decision_date\": \"2002-10-04\", \"docket_number\": \"No. 208,2002\", \"first_page\": \"545\", \"last_page\": \"549\", \"citations\": \"807 A.2d 545\", \"volume\": \"807\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Delaware Supreme Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T23:42:06.655271+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before VEASEY, Chief Justice, HOLLAND and STEELE.\", \"parties\": \"Anthony ZUPPO, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.\", \"head_matter\": \"Anthony ZUPPO, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.\\nNo. 208,2002.\\nSupreme Court of Delaware.\\nSubmitted: Sept. 10, 2002.\\nDecided: Oct. 4, 2002.\\nJames A. Bayard, Jr., Office of the Public Defender, Wilmington, Delaware, for appellant.\\nWilliam M. Kelleher, Department of Justice, Wilmington, Delaware, for appel-lee.\\nBefore VEASEY, Chief Justice, HOLLAND and STEELE.\", \"word_count\": \"1754\", \"char_count\": \"10699\", \"text\": \"PER CURIAM.\\nIn February 2002, a Superior Court jury convicted Appellant Anthony Zuppo of Second Degree Assault, Offensive Touching, Second Degree Rape, Third Degree Assault, Harassment, five counts of NonCompliance with Bond Conditions, and three counts of Aggravated Act of Intimidation. At trial, Zuppo requested to proceed pro se. Because Zuppo's request came during trial, the judge denied it on the basis that to do so would disrupt the proceedings. Zuppo appeals from that decision.\\nWe conclude that based upon the series of events leading up to Zuppo's request, Zuppo's interest failed to outweigh- the State's interest in ensuring the integrity and efficiency of the trial. Therefore, we AFFIRM the judgment of the Superior Court.\\nI\\nIn September 2000, Wendy Reynolds and Anthony Zuppo began dating and they moved in together quickly thereafter. According to Reynolds' testimony at trial, Zuppo became violent and controlling. Zuppo would not allow her to leave the house without him, and he often referred to her derogatorily. On one particular occasion, Zuppo pinned her to the couch and beat her. Reynolds considered leaving after the beating but, instead, forgave Zuppo. Shortly thereafter, according to Reynolds, Zuppo raped her. Zuppo maintains that she consented.\\nReynolds attempted to move out the evening following the alleged rape but claimed Zuppo choked her and threatened to shoot her. Reynolds reported these incidents to the police. The police arrested Zuppo for Terroristic Threatening and Offensive Touching. As a condition of Zuppo's release on bond, a Justice of the Peace Court ordered Zuppo to have no contact with Reynolds.\\nDespite the no contact stipulation, Reynolds testified at trial that Zuppo tried contacting her at work a matter of days after his release. Reynolds also testified that Zuppo made a harassing phone call to her place of residence. Zuppo denied making the harassing phone call. A Wilmington Police Officer testified that he traced the call from Reynolds' residence to a gas station near Zuppo's residence.\\nThe day after the phone call to Reynolds' residence, Reynolds and Zuppo aU tempted reconciliation. Reynolds again moved in with Zuppo. The police, however, then arrested Zuppo for violation of bail conditions. For reasons known only to her, Reynolds posted Zuppo's bail and accompanied him to Pennsylvania for one week. In Reynolds' own words, however, \\\"the abuse started right away.\\\" Inexplicably, Reynolds, sporting a clearly visible black eye, married Zuppo while in Pennsylvania.\\nThe marriage failed to resurrect the relationship. One evening, shortly after arriving back in Delaware, Zuppo and Reynolds engaged in an argument that culminated in Zuppo attacking Reynolds. Reynolds claimed she picked up a kitchen knife in self-defense. Zuppo remained undeterred. He pressed on, knocked her backwards and grabbed her wrist. Zuppo then tried to rip the knife from Reynolds and in the process he cut her hand to the bone. Finally, Reynolds called the police and told them about everything Zuppo had done to her. She did so \\\"[b]eeause [she] thought if [she] stayed much longer that he really would k\\u00f1l me.\\\" At the time of trial, Reynolds' hand had been operated on twice, and she appeared to face a serious, long-term disability.\\nOn the second day of trial, Zuppo asked the court to \\\"reassign counsel.\\\" The court denied the request. Zuppo then asked to proceed pro se. The State requested that the trial judge make the proper inquiry before Zuppo would be permitted to proceed pro se. The trial judge informed Zuppo of the risks of proceeding pro se. The State then asked the trial judge to deny the request on the basis that it was untimely \\u2014 coming after one witness already testified and a second was near the end of cross-examination \\u2014 and because the granting of the request would prejudice the State. The trial judge denied Zuppo's request to proceed pro se explaining that because the matter arose mid-trial, the trial judge had greater discretion in making a ruling. Further, the trial judge noted that due to its mid-trial timing, such a request, if granted \\\"does have a tendency to disrupt the proceedings.\\\"\\nII\\nThe right to represent oneself in a criminal proceeding is fundamental. It is protected by the Sixth Amendment to the United States Constitution and by Article I, \\u00a7 7 of the Delaware Constitution. As an issue of constitutional dimension, we review de novo the trial judge's denial of Zuppo's request to proceed pro se.\\nThe role of the trial judge when entertaining a motion to proceed pro se is to (a) determine if the defendant has made a knowing and intelligent waiver of his right to counsel and (b) inform the defendant of the risks inherent in going forward without the assistance of legal counsel. Even if the above two steps are taken, however, the right to represent one's self is not absolute. For instance, the right to self-representation is not a license to disrupt the criminal calendar, or a trial in progress. After a trial has begun, the right of self-representation may be curtailed, and the trial judge considering the motion must weigh the legitimate interests of the defendant against the prejudice that may result from the potential disruption of proceedings already in progress. The United States Supreme Court has noted that even at the trial level, the government's interest in ensuring integrity and efficiency of the trial at times outweighs the defendant's interest in acting as his own lawyer.\\nIn this case, Zuppo, citing Pitts v. Redman, a case never addressed and applied by this Court but arguably persuasive nonetheless, suggests that the trial judge erred because \\\"[t]he record does not reflect a clear balance by the trial court of the prejudice to the defendant versus the potential disruption of the trial.\\\" In Pitts, a state prisoner sought habeas corpus relief in the District Court of Delaware. The presiding judge held that denying a defendant's request to proceed pro se would not violate his Sixth Amendment right to represent himself when the defendant made the request on the third day of trial. The presiding judge also stated that the state court trial judge's failure to mention expressly the timeliness of the request as a reason for denying it did not constitute error because the record adequately revealed the state trial judge's concerns. \\\"Though his reasons were only partially articulated on the record, the basis for the judge's decision was apparent and the denial of Pitts' pro se request was entirely justified.\\\" Thus, assuming that Zuppo contends that the trial judge must detail and reconcile the two competing interests of the defendant and the State, Pitts does not require that kind of detail to demonstrate a \\\"clear balance by the trial court of prejudice to the defendant versus the potential disruption of the trial.\\\" It is sufficient that the record reflect clear findings and logical reasoning underlying the ruling denying the request.\\nThe trial judge here discussed on the record the relevant balancing of the competing interests inherent in Zuppo's mid-trial request to proceed pro se. Specifically, the judge noted that disruption would likely result if he granted the motion. Further, the record suggests that the trial judge implicitly weighed the competing interests with care:\\nTHE PROSECUTOR: I guess I would only ask the Court to address what Judge Roth set out, that it is a discretionary decision at this point, and that not only would he get less-effective representation, which is something the Court should consider, but it would have detrimental impact on the proceedings at this time because it is an untimely request.\\nTHE COURT: I think the Court does have greater discretion . to deny a request when it does come up during a trial, because it does have a tendency to disrupt the proceedings. I think in this case, I don't think you're prepared to examine witnesses, and I'm not inclined, under these circumstances on the second day of trial, measured from when the evidence was introduced, I'm not inclined to grant your request.\\nIn addition, the trial judge also specifically addressed Zuppo's interests in wishing to proceed pro se:\\nTHE DEFENDANT: What is hurting, me, I've got notes with respect to Mr. Bayard, because he's a public defender, but I have, you know, a private attorney that has his own firm that is telling me things that should be brought up to light to help me, and then I have Mr. Bayard saying that's not going to help...\\nTHE COURT: I think you're upset. I think this decision on your part has been one that was only made this morning, or you may have been thinking about after yesterday. You know, you've heard the evidence that's, you know, been coming in from [] witnesses. I think it upset you.\\nBased on a record that we deem to reflect adequately a clear and logical basis for the trial judge's reasoning, we conclude that the trial judge properly determined that Zuppo's interest in proceeding pro se failed to outweigh the State's interest in ensuring the integrity and efficiency of the trial.\\nThe trial judge properly denied Zuppo's motion to proceed pro se and the judgments of conviction in the Superior Court are AFFIRMED.\\n. Appendix to Appellant's Opening Brief at 45.\\n. Id. at 52.\\n. Id. at 60.\\n. Appendix to Appellant's Opening Brief at 65a-66.\\n. Stigars v. State, Del.Supr., 674 A.2d 477, 479 (1996); Hooks v. State, Del.Supr., 416 A.2d 189, 197 (1980) (citing Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562, 566 (1975)); Snowden v. State, Del.Supr., 672 A.2d 1017, 1020 (1996).\\n. Stigars, 674 A.2d at 479.\\n. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541, 45 L.Ed.2d at 581-582; Briscoe v. State, Del.Supr., 606 A.2d 103, 107-108 (1992).\\n. Payne v. State, Del.Supr., 367 A.2d 1010, 1015-1017 (1976).\\n. See Buhl v. Cooksey, 233 F.3d 783, 797 (3d Cir.2000).\\n. United States v. Stevens, 83 F.3d 60, 66-67 (2d Cir.N.Y.1996).\\n. See Martinez v. Court of Appeal of California, 528 U.S. 152, 162, 120 S.Ct. 684, 691, 145 L.Ed.2d 597, 607 (2000).\\n. 776 F.Supp. 907, 916 (D.Del.1991).\\n. Appellant's Op. Br. at 11, Zuppo v. State (No. 208,2002).\\n. Pitts, 776 F.Supp. at 916.\\n. Id. at 919.\\n. Id.\\n. Appendix to Appellant's Opening Brief at 66.\\n. Id. at 65a-66.\\n. Id. at 65-66.\"}"

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+"{\"id\": \"11638112\", \"name\": \"In the Matter of a Member of The Bar of the Supreme Court of the State of Delaware: Michael P. MAGUIRE\", \"name_abbreviation\": \"In re a Member of the Bar of the Supreme Court of the State: Maguire\", \"decision_date\": \"1999-03-02\", \"docket_number\": \"No. 506, 1998\", \"first_page\": \"417\", \"last_page\": \"424\", \"citations\": \"725 A.2d 417\", \"volume\": \"725\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Delaware Supreme Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T18:03:36.848757+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before WALSH, HOLLAND and HARTNETT, Justices.\", \"parties\": \"In the Matter of a Member of The Bar of the Supreme Court of the State of Delaware: Michael P. MAGUIRE.\", \"head_matter\": \"In the Matter of a Member of The Bar of the Supreme Court of the State of Delaware: Michael P. MAGUIRE.\\nNo. 506, 1998.\\nSupreme Court of Delaware.\\nSubmitted: Feb. 9, 1999.\\nDecided: March 2, 1999.\\nJeffrey M. Weiner, (argued), Wilmington, Delaware, and Michael P. Maguire (allocution), for Michael Maguire, Respondent.\\nMichael McGinniss, (argued) and Mary M. Johnston, Office of Disciplinary Counsel, Wilmington, Delaware.\\nBefore WALSH, HOLLAND and HARTNETT, Justices.\", \"word_count\": \"4641\", \"char_count\": \"28843\", \"text\": \"PER CURIAM:\\nThis Court has before it a report from the Board on Professional Responsibility (\\\"Board\\\") concerning a petition for discipline filed by the Office of Disciplinary Counsel (\\\"ODC\\\") against the Respondent, Michael P. Maguire (\\\"Maguire\\\"). Maguire has been a member of the Delaware Bar since 1968. Most recently, he operated as a solo practitioner. On May 19, 1997, this Court placed Maguire on interim suspension. In re Maguire, Del.Supr., No. 204, 1997, 1997 WL 328588 (May 19, 1997) (ORDER).\\nREPORT OF THE BOARD\\nThe Board held a hearing on August 27, 1998, at which the ODC and counsel for Maguire presented arguments. Maguire ap peared and made a statement on his own behalf. The Board also received supplemental submissions from the parties dated October 13, 1998. After considering the evidence presented, the Board concluded that Maguire had committed various violations of the Rules of Professional Conduct, including the misappropriation of clients' funds.\\nBoard Case No. 8, 1996\\nIn April of 1994, Christopher M. Slaughter retained Maguire to represent him in a personal injury case. Although Maguire and Mr. Slaughter orally agreed to a one-third contingency fee arrangement, Maguire failed to put the agreement into writing. After determining that the driver responsible for the accident was uninsured, Maguire sought a recovery from Mr. Slaughter's insurance company. The insurance company sent Ma-guire a $9,000 settlement check made payable to both Maguire and Mr. Slaughter. On August 30,1995, without obtaining authorization from Mr. Slaughter, Maguire signed Mr. Slaughter's name on the back of the check. Maguire then deposited the full amount of the settlement into his personal checking account. During the next several weeks, Ma-guire spent nearly the entire $6,000 that constituted Mr. Slaughter's portion of the settlement.\\nMr. Slaughter subsequently asked Ma-guire about the status of the settlement. On November 17, 1995, Maguire issued a check to Mr. Slaughter in the amount of $500 with the notation \\\"advance\\\" without disclosing to Mr. Slaughter that he had already received the full settlement amount and deposited it into his own account. In January 1996, Mr. Slaughter filed a complaint with the Office of Disciplinary Counsel. Maguire distributed the remaining $5,500 in settlement funds to Mr. Slaughter in February 1996. In responding to Mr. Slaughter's disciplinary complaint, Maguire falsely stated that the matter had been resolved when the check from the insurance company arrived and \\\"the funds were distributed the next day.\\\" Maguire subsequently lost Mr. Slaughter's file.\\nMaguire admits that he violated Rule 8.4(e) by \\\"engaging in conduct involving dishonesty, fraud, deceit or misrepresentation\\\" through his misappropriation of approximately $6,000 of Mr. Slaughter's funds from August 1995 until February 1996. By means of explanation rather than excuse, Maguire also asserts that he was expecting a settlement check in another matter to arrive immediately after the check from Mr. Slaughter's insurance company, so that his use of Mr. Slaughter's funds would have been limited to a short period of time. Maguire also admits that he violated Rule 8.4(e) by misrepresenting to Mr. Slaughter that the $500 check sent to him in November 1995 was an \\\"advance.\\\"\\nMaguire also admits that he violated Rule 8.1(a) by \\\"knowingly mak[ing] a false statement of material fact\\\" by falsely stating to the ODC that he had distributed settlement funds to Mr. Slaughter the day after the check from the insurance company arrived. In addition, Maguire admits that he violated Rule 1.5(c) by failing to put the contingency fee arrangement with Mr. Slaughter in writing. Finally, Maguire admits that he violated Rule 1.15(a) by failing to safeguard client property in that he failed to preserve Mr. Slaughter's funds and lost Mr. Slaughter's file.\\nBoard Case No. 11, 1998\\nIn 1995, Antoinette Reason was involved in a car accident in which she ran a red light and hit a vehicle owned by Delmarva Power & Light Company. She was fined for driving without insurance. In addition, Delmarva brought an action against her in Justice of the Peace Court. Ms. Reason retained Ma-guire to represent her in connection with that action. On her behalf, Maguire filed a third-party complaint against Crown Auto Outlet, Inc. alleging that Crown Auto, which had sold Ms. Reason her vehicle, had misled her by persuading her to obtain insurance from someone who issued her a false insurance card. Subsequently, Delmarva and Ms. Reason entered into a settlement pursuant to which Ms. Reason agreed to pay $5,780.84 plus court costs and interest to Delmarva.\\nAfter the trial of Ms. Reason's claims against Crown Auto, the Justice of the Peace Court entered a $9,405.84 judgment in favor of Ms. Reason and against Crown Auto. Crown Auto filed an appeal de novo in the Court 'of Common Pleas and soon thereafter, counsel for Crown Auto called Maguire and offered to settle the case. Maguire alleges that he spoke to a representative of Delmarva and obtained an indication that Delmarva might accept half of the amount due from Ms. Reason in satisfaction of the outstanding debt. Maguire claims that he assured Ms. Reason that he would pay off the Delmarva judgment against her if she accepted Crown Auto's settlement offer and that she agreed to that proposal. Subsequently, counsel for Crown Auto sent a $4,702.92 settlement check to Maguire in satisfaction of the settlement with Ms. Reason. Maguire deposited the settlement check into his attorney's account. During the next few weeks, Maguire depleted the account that held the Reason settlement funds. As of May 16, 1997, the attorney's account held a balance of only $50.80. As discussed above, the Delaware Supreme Court suspended Maguire from the practice of law on May 19,1997.\\nOn May 21, 1997, Maguire called a Delmarva employee to see if Delmarva would accept half of the debt in settlement. In response, the Delmarva employee demanded $4,700 and Maguire accepted this demand. On that same day, Maguire sent a fax to Delmarva memorializing the agreement that the claim would be settled on the terms discussed that day.\\nMaguire failed to pay Delmarva the funds that he had agreed to pay, nor did he deliver such funds to Ms. Reason. Ms. Reason remains liable to Delmarva for the outstanding debt. Maguire asserts in mitigation that Ms. Reason owed him more than $5,000 in unpaid fees and disbursements, and that she had agreed that he could apply the settlement amount to those statements, provided that he also paid off her Delmarva debt.\\nMaguire admits that he violated Rule 8.4(c) by engaging in \\\"conduct involving dishonesty, deceit, fraud or misrepresentation\\\" by failing to pay off the Delmarva judgment, as he asserts he had represented to Ms. Reason that he would.\\nMaguire has also presented to the panel two promissory notes. Pursuant to the first note, Maguire has agreed to make payments totaling $4,700 either directly to Conectiv (Delmarva's successor) or to the Lawyers' Fund for Client Protection in the event that the fund pays the claim, which is now under consideration. The second note relates to the fine assessed against Ms. Reason. There is some evidence that the fine is not enforceable due to the state's failure to pursue the matter. In any event, if Ms. Reason is found to have an obligation to pay the fine and the Fund disburses funds to satisfy the fine, Maguire has promised in the second note to reimburse the Fund for the fine. Similarly, if Ms. Reason pays the fine herself, he has agreed to reimburse her directly.\\nBoard Case No. 102, 1997\\nIn 1993, Josephine Lunness filed a complaint with the Equal Employment Opportunity Commission (\\\"EEOC\\\") against her employer. In September 1995, a Pennsylvania attorney referred Ms. Lunness to Maguire to have him handle the EEOC claim. Although the written referral agreement sent by Ma-guire to the Pennsylvania lawyer provided for a consulting fee to be paid to the Pennsylvania lawyer, the agreement did not contemplate that the lawyers would each be compensated in proportion to the respective services performed, nor did Maguire provide Ms. Lunness with a written agreement pursuant to which the two lawyers assumed joint responsibility for the representation. Subsequently, Ms. Lunness was injured in an automobile accident and retained Maguire to represent her in that matter as well.\\nOn July 12, 1996, Ms. Lunness' insurance company sent a check to Maguire which was payable to both Ms. Lunness and Maguire. Maguire endorsed the check with Ms. Lunness' name without indicating in any way that he was signing with her authorization. Maguire asserts that he had authorization to sign Ms. Lunness' name to the check. In addition, he asserts that the funds received were used pay costs associated with a brief filed on Ms. Lunness' behalf and the cost of storing her damaged vehicle at a service station.\\nMaguire admits that he violated Rule 8.4(c) by engaging in \\\"conduct involving dishonesty, fraud, deceit or misrepresentation\\\" by signing Ms. Lunness' name to the check without indicating that he was signing her name for her. He also admits that he violated Rule 1.5(e) in that the division of fees with respect to the referred matter was not going to be made in proportion to the respective services performed by the two lawyers, but he failed to obtain a written agreement with the client to the effect that the two lawyers would be jointly responsible for the representation. Finally, Maguire admits that he violated Rule 8.4(a) by attempting to divide a prospective fee in violation of Rule 1.5(e).\\nBoard Case No. 98, 1997\\nRoland S. Rollins retained Maguire to represent him in connection with claims against his employer. Mr. Rollins filed a discrimination complaint with the EEOC on January 27,1995. On the complaint form, Mr. Rollins designated Maguire as his attorney. According to Maguire, although he had represented Mr. Rollins in a previous similar discrimination case, he was not aware that Mr. Rollins had designated him as his attorney in the 1995 complaint. Subsequently, Maguire was contacted and asked about Mr. Rollins' position on the complaint. Without consulting Mr. Rollins, Maguire filed a document withdrawing the complaint and signed the doeument as \\\"attorney for complainant.\\\" Ma-guire subsequently failed to discuss with Mr. Rollins notices he received concerning Mr. Rollins' appeal rights. When Mr. Rollins inquired in February 1997 about the status of his discrimination case, he learned that the complaint had been withdrawn. On March 4, 1997, Maguire filed an appeal seeking to reinstate the complaint stating that he did not have authority to withdraw the complaint on Mr. Rollins' behalf because he did not represent him in the discrimination complaint. Nevertheless, the appeal was dismissed.\\nMaguire admits that he violated Rule 1.4(b) by failing to consult with Mr. Rollins prior to agreeing to dismiss the discrimination complaint.\\nBoard Case No. 123, 1997\\nIn 1995, Marie Potts retained Maguire to represent her in a federal employment action against her former employer. On October 28, 1995, Maguire filed a discrimination case on Ms. Potts' behalf. At her deposition in June 1996, Ms. Potts was questioned about documents filed on her behalf that she had not seen. Subsequently, in a series of letters directed to Maguire, Ms. Potts requested that Maguire send her copies of documents that he had filed in court on her behalf as well as copies of documents filed by the opposing party. Maguire failed fully to comply with her requests. Maguire admits that he violated Rule 1.4(a) by failing to keep a client \\\"reasonably informed about the status of a matter and promptly comply with reasonable requests for information\\\" by failing to keep Ms. Potts reasonably informed about the status of the matter.\\nBoard Case No. 57, 1997\\nIn May 1995, Bruce Joyner retained Ma-guire to represent him in a pending matter before the Industrial Accident Board. Mr. Joyner's former employer had filed a petition seeking to terminate Mr. Joyner's temporary total disability benefits under a prior agreement. A hearing on the petition was scheduled for June 26, 1995. When Maguire reviewed Mr. Joyner's file, he discovered that no medical witnesses had been subpoenaed by prior counsel and that it was too late to do so. Maguire therefore concluded that Mr. Joyner would not prevail at the hearing. However, Mr. Joyner did not agree to relinquish his claim for temporary total disability benefits. At the end of the day on the last business day before the scheduled hearing, Maguire contacted the employer's attorney and advised her that Mr. Joyner consented to the employer's petition to terminate benefits. Maguire failed to contact Mr. Joyner to inform him of this action. When Mr. Joyner appeared for the hearing on June 26, 1995, he was advised by an IAB employee that the hearing had been canceled because of his consent to the petition. Subsequently, Mr. Joyner wrote to the IAB seeking reconsideration.\\nOn July 18, 1995, Maguire filed a notice to reopen the matter due to a \\\"mistake of fact.\\\" The precise wording of Maguire's statements in support of the motion, while not saying so explicitly, could have given the members of the IAB the impression that he had discussed the consent to the petition to terminate with his client before giving the consent. Attached to the motion to reopen was a letter from Mr. Joyner's doctor, confirming Mr. Joyner's temporary total disability. Both the IAB and the Superior Court refused to reopen the matter because they had the impression that Maguire had represented to them that Mr. Joyner had been aware of the agreement and had approved of it.\\nMaguire admitted that he violated Rule 1.2(a) by agreeing to the employer's petition to terminate total disability benefits without Mr. Joyner's consent. Maguire also admits that he violated Rule 1.7(b) by representing Mr. Joyner in the motion to reopen the matter despite the fact that Mr. Joyner's position on the matter was directly adverse to Ma-guire's interests and by failing to discuss that conflict with Mr. Joyner.\\nBoard Case No. 101, 1997\\nIn connection with the May 19, 1997 order of interim suspension, the Court of Chancery entered an order appointing a receiver for Maguire's law practice. The receivership order provided that the receiver \\\"shall have the power and authority to discharge . any and all debts of the law practice\\\" and that Maguire \\\"shall cooperate fully with the Receiver in the performance of the Receiver's duties.\\\" In connection with performing these duties, the receiver asked Maguire whether he had any blank checks for his attorney's account. On more than one occasion, Maguire advised the receiver that he had no such blank checks.\\nOn May 29, 1997, Maguire issued a cheek from his attorney's account in the amount of $500 to a former client as a partial refund of an unearned $1,500 retainer. Maguire did not inform the receiver of this action. The check was returned for insufficient funds. At the hearing, Maguire's counsel advised the panel that although the preceding facts are true, Maguire had deposited $500 into the attorney's account immediately prior to writing the check and he intended to write the $500 check against those funds.\\nMaguire admits that he violated Rule 3.4(c) by \\\"knowingly disobeying] an obligation under the rules of a tribunal\\\" by failing to cooperate with the receiver's efforts to gain control over the books and records of his practice of law.\\nBoard Case No. 56, 1997\\nIn January 1997, the accountant for the Lawyers' Fund for Client Protection notified Maguire of the fact that his books and records would be subjected to a compliance audit. Through counsel, Maguire informed the accountant that \\\"virtually all\\\" of the documents which had been requested had inadvertently been discarded. On February 4, 1997, the accountant issued the report on his compliance audit. In that first report, the accountant concluded that Maguire had incorrectly certified on his annual registration statement that (a) he was properly maintaining cash receipts and cash disbursement journals, (b) he was performing monthly reconciliations for his bank accounts and (c) all tax returns had been timely 'filed and all taxes paid on a timely basis. Maguire was notified of the conclusions reached in the report and given an opportunity to put his records in compliance. On May 16,1997, the accountant conducted a follow-up audit and issued a second report. In the second report, the accountant concluded that several instances of non-compliance had not been corrected.\\nMaguire admits that he violated Rule 1.15(d) by failing to comply with the requirements for keeping books and records set forth in Interpretive Guideline No. 2. Ma-guire also admits that he violated Rule 1.15(a) by failing to preserve complete records of attorney account funds for a period of five years after the completion of the events that they recorded and by failing to preserve his financial books and records for the required period.\\nAGGRAVATING AND MITIGATING CIRCUMSTANCES\\nThe Board determined that the aggravating circumstances which must be considered in connection with this matter are as follows: Maguire's substantial experience in the practice of law; the fact that two of Maguire's violations resulted from his dishonest conduct with respect to client funds; the fact that Maguire has committed multiple violations in the matters under consideration; and Maguire's prior disciplinary history.\\nMaguire has received sanctions in two previous disciplinary proceedings. In In re Ma-guire, Board Case No. 953 (July 2,1986), the Board imposed a two-year public probation for violation of the following disciplinary rules: DR 6-101(A)(2) (lack of adequate preparation), DR 7-101(A)(3) (failure to satisfy government lien out of settlement proceeds), DR 9-102(b)(3) (failure to maintain complete records), DR 9-102(B)(4) (failure to promptly deliver to client funds that the client is entitled to receive) and DR 2-106(A) (excessive fee). In In re Maguire, Del.Supr., No. 562, 1992, Veasey, C.J. (Feb. 9, 1993) (ORDER), the Court approved a one-year public probation for violation of Rules 1.5(a) (unreasonable fee), 1.7(b) (conflict of interest), and 1.8(a) (conflict of interest in business transaction with client). The Board concluded an additional aggravating circumstance is the fact that some of the types of violations which Maguire has admitted in the instant proceeding are of a nature similar to those for which he has previously been sanctioned.\\nThe Board also considered the following mitigating circumstances. Maguire has a history of personal and psychological problems. First, Maguire is a recovering alcoholic who has undergone treatment for his condition since the early 1980's. See In re Clyne, Del.Supr., 581 A.2d 1118, 1119 (1990). In addition, Maguire was diagnosed in 1986 as having a bi-polar condition. Subsequently, he began to obtain some professional assistance in dealing with that condition. More recently, he has been diagnosed as suffering from a psychological disorder. Finally, Ma-guire suffers from diabetes and the accompanying fluctuations in his blood sugar and medication have had a profound psychological impact on Maguire during the last several years as well. In re Higgins, Del.Supr., 565 A.2d 901, 907 (1989); In re Sullivan, Del. Supr., 530 A.2d 1115, 1119 n. 5 (1987).\\nThe Board has also considered in mitigation the fact that Maguire has cooperated with the Office of Disciplinary Counsel and has expressed remorse for his wrongdoing. As evidence of his willingness to cooperate, Maguire has offered to make restitution with respect to the Reason matter and has submitted two promissory notes to the Board for its consideration.\\nFinally, at the time of his interim suspension in May 1997, Maguire submitted an irrevocable letter of resignation to the Supreme Court. The Court declined to act upon that letter until after disciplinary proceedings had concluded. At the hearing on August 27, 1998, Maguire submitted another voluntary irrevocable letter of resignation to the Board. As part of the decision concerning the recommended sanction, the Board considered this letter as well. The Board noted that Maguire understands that he will be receiving some form of public discipline and was not seeking to tender his letter of resignation to avoid that result.\\nBoard Recommended Sanction\\nThe Board determined that if Maguire's letter of resignation is accepted by this Court, but accompanied by a serious form of sanction, the interests of the \\\"integrity of the legal profession, the administration of justice, and the protection of the public\\\" will be served. Therefore, the Board recommends that the Court enter an order suspending Maguire from the practice of law for a three-year period. Alternatively, the Board recommends that the Court enter an order accepting Maguire's voluntary irrevocable letter of resignation and strike Maguire's name from the rolls of attorneys of the Court authorized to practice law in the State of Delaware and in the Courts thereof, without Maguire having any opportunity to reapply for membership. Finally, the Board recommends that the Court require Maguire to deliver and honor the promissory notes with respect to restitution in the underlying matters.\\nSTANDARD OF REVIEW\\nThis Court has made a careful and independent review of both the factual findings and the conclusions of law that are set forth in the Board's Report. Our scope of review with regard to the Board's factual findings is to determine whether the record contains substantial evidence to support those findings. In re Higgins, Del.Supr., 582 A.2d 929, 932 (1990). We review the Board's conclusions of law de novo. Id. We are satisfied that the record before us supports the findings of fact and the conclusions of law made by the Board in this ease. Id.\\nSANCTION DETERMINATION\\nThe inherent and exclusive authority for disciplining members of the Delaware Bar is vested in this Court. In re Green, Del.Supr., 464 A.2d 881, 885 (1983). The primary purpose of disciplinary proceedings is \\\"to protect the public; to foster public confidence in the Bar; to preserve the integrity of the profession; and to deter other lawyers from similar misconduct.\\\" In re Agostini Del.Supr., 632 A.2d 80, 81 (1993), citing In re Brewster, Del.Supr., 587 A.2d 1067, 1070 (1991). The lawyer discipline system is not penal or punitive in nature. See In re Christie, Del.Supr., 574 A.2d 845, 853 (1990); see also In re Rich, Del.Supr., 559 A.2d 1251, 1257 (1989); In re Bennethum, Del.Supr., 161 A.2d 229, 236 (1960).\\nThe Court has wide latitude in determining the form of discipline to be imposed. In re Member of the Bar, Del.Supr., 226 A.2d 705, 707 (1967). In imposing sanctions, we are guided by our prior-precedents. See In re Christie, Del.Supr., 574 A.2d 845, 853 (1990). \\\"Those prior precedents reflect, inter alia, that this Court has cited, with approval, the ABA Standards for Imposing Lawyer Sanctions.\\\" In re Barrett, Del.Supr., 630 A.2d 652, 656 (1993); see, e.g., In re Brewster, Del.Supr., 587 A.2d 1067, 1069-71 (1991). The American Bar Association Standard for Imposing Lawyer Sanctions most relevant in Maguire's case provides:\\n4.1 Failure to Preserve the Client's Property\\nAbsent aggravating or mitigating circumstances, upon application of the factors set out in 3.0, the following sanctions are generally appropriate in cases involving the failure to preserve client property:\\n4.11 Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client.\\nABA Standards for Imposing Lawyer Sanctions, Standard 4.1. The four factors to be considered pursuant to ABA Standard 3.0 are: \\\"(a) the duty violated; (b) the lawyer's mental state; (c) the potential or actual injury caused by the lawyer's misconduct; and (d) the existence of aggravating or mitigating factors.\\\" ABA Standards for Imposing Lawyer Sanctions, Standard 3.0. In re Agostini, 632 A.2d at 81 n. 2, citing ABA Standard 3.0.\\nAt the May 1997 hearing on the petition for interim suspension, Maguire tendered his letter of resignation. This Court does not permit members of its Bar to either resign or retire during the pendency of disciplinary proceedings. Accordingly, the Court declined to accept Maguire's resignation at that time. The Court noted, however, that it \\\"will consider the letter in resolving the underlying disciplinary proceedings.\\\" In re Maguire, Del.Supr., No. 204, 1997, 1997 WL 328588, *1 (May 19, 1997). Whether a resignation or retirement during the pendency of disciplinary proceedings is ultimately accepted depends on the Court's assessment of the impact that the resignation or retirement will have on public policy interests such as the integrity of the legal profession, the administration of justice, and the protection of the public. In re Lassen, Del.Supr., 672 A.2d 988, 1000 (1996), citing Lori J. Henkel, Annotation, Propriety of Attorney's Resignation From Bar in Light of Pending or Potential Disciplinary Action, 54 A.L.R.4th 264, 278 (1987).\\nDefalcations by members of the Delaware Bar are, fortunately, very infrequent events. See Delaware Lawyers' Fund for Client Protection, Twenty-Fifth Anniversary Report (1993). This Court has not adopted a per se rule that disbarment is mandatory but has attempted to adopt a policy that is consistent with, and protective of, the public interest whenever a lawyer has converted a client's funds. Sanctions resulting from the misappropriation of a client's property have varied. In re Higgins, Del.Supr., 582 A.2d 929 (1990). See also In re Barrett, Del.Supr., 630 A.2d 652 (1993); In re Frabizzio, Del.Supr., 498 A.2d 1076 (1985); In re Reed, Del.Supr., 369 A.2d 686 (1977); In re Green, Del.Supr., 331 A.2d 145 (1975).\\nDISBARMENT APPROPRIATE\\n\\\"The misappropriation of a client's funds is one of the most egregious acts of professional misconduct that any attorney can commit.\\\" In re Higgins, Del.Supr., 582 A.2d 929, 932 (1990). Maguire has a record of repeated professional misconduct. As a result of the present proceedings, this Court was advised during oral argument, that the Lawyer's Fund for Client Protection has paid $39,840 in claims by Maguire's clients that were attributable to either his defalcations or inability to refund unearned fees. Based on our evaluation of the aggravating and mitigating factors affecting Maguire's pattern of professional misconduct that culminated in his misappropriation of client's funds, we have concluded that disbarment is required to protect the public and to uphold the integrity of the legal profession in Delaware.\\nTherefore, it is adjudged and ordered, pursuant to this Court's exclusive jurisdiction over the Delaware Bar, that Michael P. Ma-guire be disbarred. His name shall be immediately stricken from the Roll of Attorneys entitled to practice before the courts of this State. This Opinion is to be disseminated by Disciplinary Counsel in accordance with Rules 3 and 14 of the Rules of the Board on Professional Responsibility.\\n. The Board acknowledged that an attorney's intention to return the money is irrelevant to the question of whether a disciplinary violation occurred. In re Figliola, Del.Supr., 652 A.2d 1071, 1076 (1995).\\n. The ODC had originally asserted a claim that Maguire had continued to practice law in violation of the interim suspension order by means of his actions on May 21, 1997 with respect to the Reason matter. In response, Maguire asserted that he viewed the Reason debt as a personal debt which he had assumed from the client and did not believe that he was engaging in the practice of law by satisfying that obligation. Thereafter, the ODC elected to dismiss the claim. \\u2022\\n. In investigating the matter, ODC concluded that there was some factual support for Ma-guire's assertion that he had the client's consent to his endorsement of the check.\\n. Maguire asserted in mitigation that after he and Ms. Potts participated in a telephone conference with Judge Longobardi concerning this issue, Ms. Potts copied pleadings in his office. Maguire believed that Ms. Potts was satisfied at that point because she did not thereafter complain to him.\"}"

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+"{\"id\": \"11940629\", \"name\": \"Tyrone Lee JOHNSON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee\", \"name_abbreviation\": \"Johnson v. State\", \"decision_date\": \"1991-03-05\", \"docket_number\": \"\", \"first_page\": \"444\", \"last_page\": \"453\", \"citations\": \"587 A.2d 444\", \"volume\": \"587\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Delaware Supreme Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-11T01:51:56.312891+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before CHRISTIE, C.J., HORSEY, WALSH, and HOLLAND, JJ\\u201e and ALLEN, Chancellor, constituting the Court en banc.\", \"parties\": \"Tyrone Lee JOHNSON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.\", \"head_matter\": \"Tyrone Lee JOHNSON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.\\nSupreme Court of Delaware.\\nSubmitted: Sept. 9, 1989.\\nRehearing en banc: May 15, 1990.\\nDecided: March 5, 1991.\\nNancy Jane Perillo, Asst. Public Defender, Wilmington, for appellant.\\nTimothy H. Barron, Deputy Atty. Gen., Wilmington, for appellee.\\nBefore CHRISTIE, C.J., HORSEY, WALSH, and HOLLAND, JJ\\u201e and ALLEN, Chancellor, constituting the Court en banc.\", \"word_count\": \"5377\", \"char_count\": \"32909\", \"text\": \"CHRISTIE, Chief Justice.\\nThe opinion in this case dated January 11, 1990, which was released after argument before a panel of three justices and which affirmed Tyrone Johnson's convictions, is withdrawn. The following opinion of the Court en banc is substituted.\\nJohnson appeals his convictions in Superior Court for possession of a controlled substance with the intent to deliver and conspiracy in the second degree, in violation of 16 Del.C. \\u00a7 4751(a) and 11 Del.C. \\u00a7 512. He was convicted of these charges following a jury trial on February 11, 1988. He raises three contentions on appeal. First, he argues that the trial court erred in denying a motion for a mistrial when it became evident that a prosecution witness was not telling the truth during testimony. Secondly, he asserts that testimony regarding his out-of-court identification by an undisclosed informant was inadmissible hear say and that its admission into evidence was reversible error. Finally, he contends that the trial judge should have instructed the jury that a defense under Wharton's Rule, as codified in 11 Del.C. \\u00a7 521(c), existed for the conspiracy charge. After hearing oral argument and reviewing the record and the briefs, we affirm the decision of the Superior Court.\\nThe trial record reveals that on the night of Thursday, June 18, 1987, Delaware State Police Detective Harry Downs, working undercover and based on a tip from a confidential informant, sought to make a purchase of cocaine in Middletown, Delaware. He was introduced by the informant to the appellant who listened to his request and walked over to a parked car occupied by two men. The appellant returned saying that the men indicated that they had no drugs left, but they would go and get some more. The two men left in the car and were gone for approximately one-half hour while Downs waited with the appellant. When the car returned, the appellant approached it alone, paid the occupants $20.00 supplied by Downs, and received a small bag of cocaine. The appellant then returned and gave the cocaine to the police officer. Upon returning from the purchase, Downs gave descriptions of the appellant and the two others who had participated in the transaction to the New Castle County Police in the presence of the confidential informant. As Downs described the participants, the confidential informant provided names of the individuals. New Castle County Police arrested Johnson, Adam Daniels, and Devin Dickerson on August 6, 1987. From their arrest photographs, Downs confirmed that they were the three persons involved in the June 18 drug sale. All three were charged with delivery of a Schedule II narcotic in violation of 16 Del.C. \\u00a7 4751(a) and conspiracy in the second degree in violation of 11 Del.C. \\u00a7 512. Daniels was charged with additional violations. Prior to trial appellant moved for disclosure of the identity of the confidential informant. The Superior Court held an in camera Flowers hearing during which the judge met with and interrogated the confidential informant. The appellant's motion was denied because the court found\\n. that the informant can offer no testimony supporting [Johnson's] contention that he was misidentified as a participant in the drug transaction which is the subject matter of this prosecution.\\nUnder terms of a plea agreement entered on the day of trial, Daniels pleaded guilty to the drug delivery charge, the State dropped several other charges against him, and Daniels agreed to testify against Johnson and Dickerson. In his testimony, Daniels said that Johnson had not been with Dickerson and himself in the car on June 18. Johnson had purchased drugs from Daniels but had not directly indicated that the purchase was for someone else. Daniels had observed the other man (Downs) and testified that he \\\"just figured [Johnson] was coming for someone else.\\\" Daniels also testified that Johnson only approached his car once that evening.\\nDuring his testimony, Daniels stated that he had never participated in a drug sale before or since the June 18, 1987 incident. However, at the end of the State's case, the deputy attorney general read into the record an affidavit which stated that a police detective had purchased cocaine from Adam Daniels on a date prior to June 18, and that Daniels had been indicted for that offense. Defense counsel moved for a mistrial on the basis that the State had knowingly relied on perjured testimony by Daniels. The court denied the motion, holding that while it was clear that the witness had not been truthful about his other drug dealing, there was no proof that his account of the transaction at issue in this trial was false.\\nDetective Bruce Arterbridge of the New Castle County Police testified that after the drug transaction he met with Detective Downs and the confidential informant. As Downs described the events and the individuals involved, the informant assisted by matching the descriptions of the participants to the names of individuals he knew. Over defense objection, Arterbridge testified that the informant identified the three defendants. The trial court ruled that Ar-terbridge's testimony did not constitute hearsay because it was offered only to explain the ensuing activities of the police who arrested the three defendants six weeks later. Additionally, the trial judge noted that the testimony of other eyewitnesses, Downs and Daniels, had established the identity of the defendants as those who took part in the transaction. The jury was given a specific instruction that the confidential informant's naming of the defendants was not to be considered as evidence of their guilt.\\nAt trial the appellant's defense was mistaken identity. The appellant and his wife were the only new witnesses called by the defense. They testified that the appellant's usual habit was to be at home with his family on weekday evenings.\\nCo-appellant Dickerson did not put on a defense. He and Johnson were found guilty of both counts against them. Johnson alone has brought this appeal.\\nI.\\nJohnson's first contention on appeal is that the court erred by failing to grant his motion for a mistrial following the perjured testimony by Daniels. Appellant relies upon Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). The court below held that no proof had been introduced which called into doubt Daniels' testimony concerning the drug transaction on June 18, 1987. We agree with the trial court's holding on this issue. Contrary to the situation in the Napue case, the prosecutor had not knowingly allowed the witness to lie, and he had entered into the record evidence which contradicted the false testimony. The prosecutor also mentioned in his closing remarks the falsehood told by the witness. The jury was fully informed of Daniels' perjury. We hold that the false testimony affected only the credibility of the witness which could be properly weighed and determined by the jury. Tyre v. State, Del.Supr., 412 A.2d 326, 330 (1980).\\nII.\\nJohnson next argues that an out-of-court statement by an unnamed informant which identified the defendants was inadmissible hearsay, and its admission into evidence was reversible error. He also asserts that the admission of Downs' and Arterbridge's testimony concerning identifications made by the confidential informant violated the appellant's right to confront witnesses guaranteed by the Sixth Amendment of the United States Constitution.\\nA.\\nDelaware Rules of Evidence 801(c) defines hearsay as \\\"a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\\\" If a statement is introduced for a purpose other than its truth, however, it may be admissible under some circumstances. If it is admitted for another purpose, that purpose must be relevant to an issue of the trial. D.R.E. 401. However, while evidence may be relevant, it must also be substantially more probative to an issue than prejudicial to the defendant. D.R.E. 403. It is under these rules that the testimony in question must be analyzed.\\nProblems arise when the statement to be quoted may serve more than one purpose. McCormick states:\\nIn criminal cases, an arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct. His testimony that he acted \\\"upon information received,\\\" or words to that effect, should be sufficient. Nevertheless, cases abound in which the officer is allowed to relate historical aspects of the case, replete with hearsay statements in the form of complaints and reports, on the ground that he was entitled to give the information upon which he acted. The need for the evidence is slight, the likelihood of misuse great.\\nMcCormick, Evidence \\u00a7 249 at 734 (Cleary 3d ed. 1984).\\nThis Court has held that testimony regarding statements which explain why the police believed a particular person was a suspect is not hearsay, because the accuracy of the statements is not asserted. Whalen v. State, Del.Supr., 434 A.2d 1346 (1981), cert. denied, 455 U.S. 910, 102 S.Ct. 1258, 71 L.Ed.2d 449 (1982). In that case, an investigating officer stated during cross-examination by defense counsel that specific information which indicated that the defendant may- have committed the crime was provided by interviews with neighbors. This Court ruled on appeal that:\\n[T]he answer did not contain hearsay because those out-of-court statements were not mentioned \\\"to prove the truth of the matter asserted.\\\" Del.Rule of Evid. 801(c). The reference to out-of-court statements was to show why the detective believed the defendant was a suspect and was not intended to show that those statements were accurate.\\nId. at 1355. In the Whalen case, the neighbors' statements were part of the post-crime investigation, and the neighbors could have been called as witnesses. In contrast, we are confronted with a situation in which the informant was involved throughout the planning, execution, and follow-up of the drug transaction; the testimony was that the informant specifically identified the three defendants; the testimony about the identification was introduced by the prosecution during direct examination; and the informant was unavailable to testify because the court had ruled that his identity would not be disclosed.\\nWhile Delaware courts have not previously ruled on the admissibility of the out-of-court identification of crime suspects by unnamed police informants, courts generally scrutinize out-of-court statements as to the availability of the speaker, the specificity of the information, the need of the statement in relation to other evidence, its relevancy to the question of guilt and the statement's prejudice to the defendant. See, e.g. Whalen at 1355; United States v. Reynolds, 715 F.2d 99 (3rd Cir.1983); Berry v. State, 254 Ga. 101, 326 S.E.2d 748 (1985); People v. Billingsley, 184 Ill.App.3d 142, 132 Ill.Dec. 496, 539 N.E.2d 1302 (1989); People v. Holt, 67 N.Y.2d 819, 501 N.Y.S.2d 641, 492 N.E.2d 769 (1986); People v. Johnson, 57 N.Y.2d 969, 457 N.Y.S.2d 230, 443 N.E.2d 478 (1982).\\nMany jurisdictions have recognized that out-of-court statements may be admitted to explain why the police took certain actions once their conduct is placed at issue in the trial. United States v. Love, 767 F.2d 1052, 1063-64 (4th Cir.1985), cert. denied, 474 U.S. 1081, 106 S.Ct. 848, 88 L.Ed.2d 890 (1986) (evidence admissible to explain police conduct after it was called into question); State v. Cruz, 212 Conn. 351, 562 A.2d 1071 (1989) (evidence admitted not for identification, but to explain police action); Johnston v. State, Ind.Supr., 530 N.E.2d 1179 (1988) (testimony explained why police began surveillance); Stout v. State, Ind. Supr., 479 N.E.2d 563 (1985) (information provided by third party explained police actions); State v. Gray, La.App., 542 So.2d 684 (1989) (fact that a witness had pointed out defendant explained police actions); State v. Parker, La.App., 536 So.2d 459 (1988) (conduct of police leading to arrest of defendant explained); State v. Brooks, Mo.Supr., 618 S.W.2d 22 (1981) (drug informant statement explained police action); State v. Sardeson, Nebr.Supr., 231 Neb. 586, 437 N.W.2d 473 (1989) (eyewitness statement admitted to explain police actions when defendant argued that police manipulated witness). Such testimony has also been admitted in some cases involving the defense of entrapment, where the conduct of the police is at the heart of the defendant's case. Atkins v. State, Del.Supr., 523 A.2d 539 (1987); United States v. Engler, 627 F.Supp. 196 (M.D.Pa.1985), aff'd in part, rev'd in part, 806 F.2d 425 (3d Cir.1986); Morris v. State, Fla.Supr., 487 So.2d 291 (1986).\\nIn several jurisdictions, explicit limitations have been placed on the use of out-of-court statements offered by the police to explain their actions. The Supreme Court of Indiana has held that the prosecution must prove that there is a reasonable level of assurance that testimony is offered not for its truth, but to explain police conduct. Williams v. State, Ind.Supr., 544 N.E.2d 161 (1989). In Connecticut, if an eyewitness is not an informant, his statement identifying a person may be admitted as long as the statement does not refer to anything that the identified person did. State v. Cruz, 212 Conn. 351, 562 A.2d 1071 (1989). In New Jersey, any reference to a statement made by a police informant must be limited to the phrase \\\"information received\\\" or the Sixth Amendment rights of the defendant will be violated. State v. Bankston, 63 N.J. 263, 307 A.2d 65, 69 (1973). The Court of Special Appeals of Maryland has ruled that if the statement of an informant has \\\"misleading probative force,\\\" which may explain police conduct, but is also intended to influence the jury on the question of guilt, it is inadmissible hearsay. Purvis v. State, 27 Md.App. 713, 343 A.2d 898, 904 (1975).\\nCourts in Pennsylvania have applied a balancing test between the need for the circumstantial evidence and the danger of hearsay evidence being prejudicial to the defendant. Commonwealth v. Underwood, 347 Pa.Super. 256, 500 A.2d 820 (1985). In a recent case, the Pennsylvania Supreme Court held that it was reversible error for the statements of a named, but unavailable, informant which contained specific assertions of criminal conduct, to be admitted because they tipped the balance too far toward prejudicing the defendant without a sufficient showing of need for their introduction by the prosecution. Commonwealth v. Paisa, 521 Pa. 113, 555 A.2d 808, 811 (1989) (three justices dissenting on grounds of harmless error). In the Paisa case, a police officer was allowed to testify that a man he had arrested said that he was on his way to the defendant's house to deliver marijuana. The man also told the police officer that he had sold the defendant marijuana the day before and had been given money to buy more for the defendant. The informant had fled the jurisdiction and was unavailable to testify. The trial court instructed the jury to regard these statements as relevant only to explain police conduct. On appeal, the court applied a balancing test \\\"between avoiding the dangers of hearsay testimony and the need for evidence that explains why police pursued a given course of action.\\\" Id. 555 A.2d at 811. The majority held that the questioned testimony contained \\\"specific assertions of criminal conduct by a named accused,\\\" which were likely to be understood by the jury as proof of a necessary element of the crime and that the activities of the police could easily have been explained without the use of the out-of-court statements. Id. The court reversed the conviction and remanded the case for a new trial because the incriminating nature of the evidence outweighed the asserted need for the evidence's other purposes. The dissent found that the out-of-court statements by the informant were not determinative of the defendant's guilt, concluding that even if the informant's statements were hearsay, they were de minimis and not grounds for reversal. Id. at 812. The majority focused on the prejudicial character of the specific hearsay evidence, while the dissent analyzed the limit ed potential for prejudice in relation to all of the evidence.\\nThe balancing test applied by the Pennsylvania Supreme Court appears to be similar to the test applied in the holding of Moore v. United States, 429 U.S. 20, 97 S.Ct. 29, 50 L.Ed.2d 25 (1976) where the United States Supreme Court addressed the issue of out-of-court statements used to explain police conduct. In that case, the Court held that testimony by a police officer that an unidentified informant had told him that Moore and others had heroin at \\\"Moore's apartment\\\" was inadmissible hearsay. Although the defendant was found at the apartment and heroin was also found there, the Court ruled that the trial court had relied expressly on the informant's statement in finding the defendant guilty of possession of heroin. Because the informant was unidentified, he could not be cross-examined as to the basis of his belief that Moore was a tenant or regular resident of the apartment. The Court ruled the statement inadmissible hearsay on the issue of guilt and remanded the case for a determination of whether admission of the hearsay evidence was harmless error. The Court did not address the Sixth Amendment explicitly. To the extent that the Moore case provides guidance in this case, it is on an evidentiary basis. An out-of-court statement of an unidentified informant is inadmissible if it provides the single piece of information relevant to an element of a crime, even though it also explains why the police suspected the defendant in the first place.\\nAppellant argues that the trial court's ruling admitting the statement of the unnamed informant in this case ignores the Sixth Amendment. The United States Supreme Court has addressed the Sixth Amendment right of confrontation and its relation to hearsay, but it has not explicitly disapproved admission of out-of-court statements on Sixth Amendment grounds. The Court's position has been stated: \\\"It is not argued, nor could it be, that the constitutional right to confrontation requires that no hearsay evidence can ever be introduced.\\\" Dutton v. Evans, 400 U.S. 74, 80, 91 S.Ct. 210, 215, 27 L.Ed.2d 213 (1970). In the case of California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), which involved an out-of-court statement of a co-conspirator, the Court stated, \\\"While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law.\\\" Green, 399 U.S. at 155, 90 S.Ct. at 1933-34, 26 L.Ed.2d 489. Neither Dutton nor Green applies the Sixth Amendment to the eviden-tiary issue present in the case before us today. The Moore case, which clearly addresses the evidentiary issue, refrains from mentioning the Sixth Amendment. In none of these rulings has the United States Supreme Court held that admission of hearsay evidence is an automatic violation of the Sixth Amendment.\\nIn reviewing the facts of the present case, we find that the statement of the unidentified informant was inadmissible hearsay under D.R.E. 403. While the statement was highly incriminating to the defendant, it was merely cumulative in the State's case against him, and it did not have important relevance as an explanation for police conduct. There was little need for the informant's statement to explain why the police arrested Johnson since the primary witness for the State at trial was the undercover police officer who had participated in the drug transaction. There was no further need to explain police actions since the defense did not challenge the procedures used in arresting the defendants, nor did it accuse the police of arbitrary conduct. The facts are clearly distinguishable from our prior ruling in Whalen v. State, Del.Supr., 434 A.2d 1346 (1981), cert. denied, 455 U.S. 910, 102 S.Ct. 1258, 71 L.Ed.2d 449 (1982), where we found that out-of-court statements were admissible to explain police action. While we find that the confidential informant's statement in this case was inadmissible hearsay under D.R.E. 403, we do not find that the admission of the informant's statement violated the Sixth Amendment since Johnson's accuser was the undercover police officer who had negotiated the drug purchase with Johnson and who identified him both in photographs and in court.\\nB.\\nAlthough we find that the statement of the unidentified informant was inadmissible by application of a standard which balances the dangers of hearsay testimony with the need for evidence in a criminal case, a review of the State's complete case against Johnson shows that the error of admitting the hearsay testimony was harmless. This Court has previously stated a standard for determining whether an error in admitting evidence was harmless. \\\"The well-established rule is that where the evidence exclusive of the improperly admitted evidence is sufficient to sustain a conviction, error in admitting the evidence is harmless.\\\" Collins v. State, Del.Supr., 420 A.2d 170 (1980), citing Outlaw v. State, Del.Supr., 327 A.2d 606 (1974) and Tucker v. State, 55 Del. 342, 187 A.2d 429 (1963). Even if we view the evidence in this case under the stricter standard required for evidentiary errors of constitutional magnitude, we find that the other evidence against Johnson was sufficient to sustain his convictions. The test for constitutional evidentiary error was adopted at the direction of the United States Supreme Court. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). It requires showing that the error was \\\"harmless beyond a reasonable doubt.\\\" Van Arsdall v. State, Del.Supr., 524 A.2d 3, 11 (1987), citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).\\nThe case against appellant was not merely circumstantial. Johnson was identified both from photographs and in court by the undercover police officer who witnessed the crime. The police officer's identification was corroborated by a co-conspirator. Neither of these witnesses was a casual observer who was likely to have been mistaken in making the identification.\\nThe defendant presented no credible evidence that he was misidentified by either witness. His only alibi witness was his wife. We find that the jury would have reached the same result without the hearsay testimony identifying Johnson. The appellant has not shown that the erroneous admission of the hearsay statements affected the result of the trial.\\nAn otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that a constitutional error was harmless beyond a reasonable doubt. Delaware v. Van Ars- dall, 475 U.S. at 681, 106 S.Ct. at 1436, 89 L.Ed.2d 674.\\nIII.\\nAt the end of the testimony, the appellant requested that the jury instructions include the language of 11 Del.C. \\u00a7 521(c), a codification of Wharton's Rule. This request was denied. Appellant argues on appeal that Wharton's Rule does apply to the conspiracy offense in this case and that it was reversible error for the trial judge not to have included a charge on 11 Del. C. \\u00a7 521(c).\\nWharton's Rule provides an exception to the general rule that conspiracy and the substantive offense planned by the conspirators are separate crimes. It provides that \\\"an agreement between two persons to commit an offense does not constitute conspiracy when the target offense is so defined that it can be committed only by the participation of two persons .\\\" 4 Wharton's Criminal Law \\u00a7 731 at 545 (14th ed. 1981). This rule was examined extensively by the U.S. Supreme Court in 1975. Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975). The Court stated that the Rule \\\"has current vitality only as a judicial presumption, to be applied in the absence of legislative intent to the contrary.\\\" 420 U.S. at 782, 95 S.Ct. at 1292, 43 L.Ed.2d 616. The United States Supreme Court held that when a trial court must decide whether or not the Rule applies to a particular offense, the focus should be on \\\"the statutory requirements of the substantive offense rather than the evidence offered to prove those elements at trial.\\\" 420 U.S. at 780, 95 S.Ct. at 1291, 43 L.Ed.2d 616. If it is found that the Rule would apply to a particular offense, both conspiracy and the substantive offense may be charged, but the jury must be instructed that a conviction for the substantive offense necessarily precludes conviction for conspiracy. 420 U.S. at 775, 95 S.Ct. at 1289, 43 L.Ed.2d 616.\\nWharton's Rule applies traditionally to crimes such as adultery, incest, bigamy, and dueling. See 16 Am.Jur.2d, Conspiracy \\u00a7 6 (1979). In the Iannelli case, the U.S. Supreme Court identified general characteristics of crimes to which the Rule would apply. They included crimes in which the parties to the agreement were the only participants in the offense. The immediate consequences of the crime fell on the parties, not on society, and the agreement did not pose a threat to society that conspiracy laws are designed to avert, such as a more general pattern of criminal activity Iannelli, 420 U.S. at 782-84, 95 S.Ct. at 1292-93, 43 L.Ed.2d 616.\\nThis Court has held that the legislative purpose of the Uniform Controlled Substances Act, 16 Del.C. \\u00a7 4701-4796 is to control a societal evil by stating \\\"[w]e are well aware that the organized traffic in illegal drugs is a serious problem, causing not only debilitating effects in those who use such substances, but fostering additional crimes.\\\" Traylor v. State, Del.Supr., 458 A.2d 1170, 1178 (1983). If the legislature intended to limit 16 Del. C. \\u00a7 4751(a) to one which required a partnership or agreement with suppliers and customers, it could have provided the necessary language. See Iannelli, 420 U.S. at 789, 95 S.Ct. at 1296, 43 L.Ed.2d 616 (holding that the Omnibus Crime Control Act of 1970 described \\\"gambling activities\\\" by five or more persons separately from conspiracy to promote gambling activities). We are of the opinion that it is evident, therefore, that 16 Del.C. \\u00a7 4751(a) does not describe an offense to which Wharton's Rule applies. A person could possess narcotics with the intent to deliver them without actually delivering them to another person. This analysis has been adopted by federal courts addressing similar offenses. See United States v. Rivera, 872 F.2d 507 (1st Cir.1989); United States v. Schleicher, 862 F.2d 1320 (8th Cir.1988); United States v. Prati, 861 F.2d 82 (5th Cir.1988).\\nIn Delaware, the only reported case testing the application of 11 Del.C. \\u00a7 521(c) held that it did not apply to the offense of receiving stolen goods (11 Del.C. \\u00a7 851). Guyer v. State, Del.Supr., 453 A.2d 462 (1982). The offense described in the statute did not on its face require agreement with another person, because \\\"one may receive property he knows to be stolen from another who is without such knowledge.\\\" Id. at 466. This holding was consistent with the ruling in the Iannelli case in that it applied the Rule to the statute, without regard to the factual situation presented in the particular case before the Court.\\nIf Wharton's Rule was found to be applicable in this case, the court would have been required to include it in the instructions to the jury. 11 Del.C. \\u00a7 303(c). However, since Wharton's Rule does not apply to an offense involving possession with intent to deliver, the trial court did not err in its ruling.\\nThe judgment of the trial court is affirmed.\\n. 16 DelC. \\u00a7 4751(a) stated:\\nExcept as authorized by this chapter, any person who manufactures, delivers or possesses with intent to manufacture or deliver a controlled substance or a counterfeit controlled substance classified in Schedule I or II which is a narcotic drug is guilty of a felony and shall be fined not less than $5,000 nor more than $50,-000 and imprisoned not more than 25 years unless the defendant is not himself addicted to narcotic drugs in which case, upon conviction, he shall be fined not less than $25,000 nor more than $100,000 and imprisoned for 30 years without eligibility for parole.\\n. 11 Del.C. \\u00a7 512 states:\\nA person is guilty of conspiracy in the second degree when, intending to promote or facilitate the commission of a felony, he:\\n(1) Agrees with another person or persons that they or 1 or more of them will engage in conduct constituting the felony or an attempt or solicitation to commit the felony; or\\n(2) Agrees to aid another person or persons in the planning or commission of the felony or an attempt or solicitation to commit the felony; and he or another person with whom he conspired commits an overt act in pursuance of the conspiracy.\\n. 11 Del. C. \\u00a7 521(c) states:\\nNo person may be convicted of conspiracy to commit an offense when an element of the offense is agreement with the person with whom he is alleged to have conspired, or when the person with whom he is alleged to have conspired is necessarily involved with him in the commission of the offense.\\n. D.R.E. 401 states:\\n\\\"Relevant evidence\\\" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\\n. D.R.E. 403 states:\\nAlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.\\n. In another case, Atkins v. State, this Court held that tape recorded discussions were relevant to a defense of entrapment and were not hearsay because they showed the effect of the statements on the police officer's state of mind. Atkins v. State, Del.Supr., 523 A.2d 539 (1987).\\n. Other than the Moore case, appellant has referred this Court to only one other U.S. Supreme Court case, United States v. Owens, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988). In that case, the Court ruled (with two justices dissenting) that admission of an out-of-court identification by a witness who had lost his memory and could no longer identify the defendant was not a violation of the Sixth Amendment. The specific hearsay rule at issue was F.R.E. 801(d)(1)(C), not the definition of hearsay itself. Although it appears that we are referred to that case for the contrary proposition, the Court declined to draw a hand-in-glove relationship between hearsay and the Sixth Amendment. \\\"This Court has recognized a partial (and somewhat indeterminate) overlap between the requirements of the traditional hearsay rule and the Confrontation Clause.\\\" Owens, 484 U.S. at 560, 108 S.Ct. at 843, 98 L.Ed.2d 951. On the point of the reliability of out-of-court identifications in general, the Court stated in the Owens case, \\\"There does not appear in our opinions, and we decline to adopt today, the principle that, because of the mere possibility of suggestive procedures, out-of-court statements of identification are inherently less reliable than other out-of-court statements.\\\" Id.\\n. In the Dutton case, the court also enunciated eight \\\"indicia of reliability\\\" which could be used to analyze the truth seeking value of out-of-court statements as a basis for deciding their admissibility. Dutton, 400 U.S. at 88-89, 91 S.Ct. at 219-20, 27 L.Ed.2d 213. It could be argued that the Flowers hearing with the informant before the trial in this case had some bearing on the reliability of the informant.\\n. Because we find the admission of the confidential informant's identification of the appellant to have been error we do not address the curative instructions provided by the trial court.\\n. 11 Dele. \\u00a7 303(c) states:\\nIf some credible evidence supporting a defense is presented, the defendant is entitled to a jury instruction that the jury must acquit him if they find that the evidence raises a reasonable doubt as to the defendant's guilt.\"}"

delaware/12142201.json

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+"{\"id\": \"12142201\", \"name\": \"SABREE ENVIRONMENTAL & CONSTRUCTION, INC., Defendant-Below, Appellant, v. SUMMIT DREDGING, LLC, Plaintiff-Below, Appellee\", \"name_abbreviation\": \"Sabree Environmental & Construction, Inc. v. Summit Dredging, LLC\", \"decision_date\": \"2016-10-12\", \"docket_number\": \"No. 21, 2016\", \"first_page\": \"517\", \"last_page\": \"517\", \"citations\": \"149 A.3d 517\", \"volume\": \"149\", \"reporter\": \"West's Atlantic Reporter, Third Series\", \"court\": \"Delaware Supreme Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-11T02:13:09.551584+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SABREE ENVIRONMENTAL & CONSTRUCTION, INC., Defendant-Below, Appellant, v. SUMMIT DREDGING, LLC, Plaintiff-Below, Appellee.\", \"head_matter\": \"SABREE ENVIRONMENTAL & CONSTRUCTION, INC., Defendant-Below, Appellant, v. SUMMIT DREDGING, LLC, Plaintiff-Below, Appellee.\\nNo. 21, 2016\\nSupreme Court of Delaware.\\nSubmitted: September 28, 2016\\nDecided: October 12, 2016\", \"word_count\": \"40\", \"char_count\": \"304\", \"text\": \"Court Below: Superior Court of the State of Delaware, C.A. No. N14C-10-283\\nAFFIRMED.\"}"

delaware/12257273.json

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+"{\"id\": \"12257273\", \"name\": \"STATE of Delaware, v. Anthony L. MANISTA\", \"name_abbreviation\": \"State v. Manista\", \"decision_date\": \"1994-06-29\", \"docket_number\": \"File No. AN94-0787\", \"first_page\": \"781\", \"last_page\": \"786\", \"citations\": \"651 A.2d 781\", \"volume\": \"651\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Delaware Family Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T23:36:28.148618+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Delaware, v. Anthony L. MANISTA.\", \"head_matter\": \"STATE of Delaware, v. Anthony L. MANISTA.\\nFile No. AN94-0787.\\nFamily Court of Delaware, New Castle County.\\nSubmitted: June 17, 1994.\\nDecided: June 29, 1994.\\nJohn P. Deckers, Deputy Atty. Gen., Dept, of Justice, Wilmington, for State.\\nSheryl Rush-Milstead, Wilmington, for respondent, Anthony L. Manista.\", \"word_count\": \"3131\", \"char_count\": \"19439\", \"text\": \"JAMES, Judge.\\nPresent before the Court is a Motion to Dismiss filed by defendant, Anthony L. Man-ista. The motion seeks dismissal of a criminal charge of harassment which was filed against defendant on March 18, 1994.\\nIn addition to the criminal filing, defendant's spouse, Claire Manista, filed a Petition for Order of Protection from Abuse on that same day. Her petition alleged that: Mr. Manista had threatened her existence in Delaware on March 12, 1994; on March 13, 1994, he came to Mrs. Manista's house and withdrew all of their mutual agreements on separation; on March 17, 1994, he called her at work and harassed her; and on March 18, 1994, he went to her place of employment and stole her vehicle.\\nA hearing on the Protection from Abuse Petition was held before Commissioner Ellen Marie Cooper on April 15, 1994. In her ruling, Commissioner Cooper stated that \\\"[a]fter testimony given by both parties, the Court finds that no act of abuse has been committed.\\\" Manista v. Manista, Del.Fam., File No. CN92-10634, Cooper, Com. (April 15,1994). Therefore, Mrs. Manista's request for a protection from abuse order was denied.\\nDefendant claims that since the allegations which were made in the criminal complaint mirror those which were the basis for the protection from abuse petition, the criminal complaint against him must also be dismissed. He argues that the prosecution would, otherwise, be unconstitutional in light of the federal and state constitutional provisions prohibiting the government from placing an individual in double jeopardy. He submits that proceedings under 10 Del.C. \\u00a7 945-952 are criminal or at least quasi-criminal in nature. He bases his assertion on the fact that a violation of a protective order entered by this Court may result in the imposition of criminal contempt.\\nAlternatively, defendant argues that since the issue of harassment has already been litigated at the protection from abuse hearing, the doctrine of collateral estoppel bars the State from relitigating that issue in a different forum.\\nThe State responds to defendant's motion to dismiss by asserting that the protection from abuse proceeding was civil in nature and, furthermore, that the State may impose both a criminal and a civil penalty for the same act. Since the State argues that the theory of double jeopardy is inapplicable, it further submits that it is not precluded from pursuing a criminal remedy against the defendant.\\nThe State further contends that a judgment of a civil court generally is not binding upon a court in which a criminal case is being tried. Moreover, the State argues that the doctrine of collateral estoppel is limited to situations where the matter raised in the second suit is identical in all respects to the matter of the first proceeding. Accordingly, since the protection from abuse proceeding is a civil proceeding based upon a preponderance of the evidence standard of proof, collateral estoppel is not permitted as a defense specifically because the criminal proceedings are based upon an entirely different standard of proof.\\nOur legislature recently enacted the Protection from Abuse Act. The Act was intended to protect against domestic violence, which is defined by the Act as follows:\\nabuse perpetrated by one member against another member of the following protected classes: (i) Family, as that term is defined in \\u00a7 901(9) of this title, regardless, however, of state of residence of the parties; or (ii) Former spouses, a man and a woman co-habitating together with or without a child or either or both, or a man and a woman living separate and apart with a child in common.\\n10 DelC. \\u00a7 945.\\nAfter consideration of the petition for a protective order, the Court may grant a number of civil remedies as provided in the Act. The order is effective for a fixed period of time, not to exceed 1 year, 10 DelC. \\u00a7 949(b), but the Court has the ability to modify the order. The Act further provides that \\\"[a]ll protective orders issued under this part shall state that violations may result in: (1) A finding of contempt; (2) Criminal prosecution; and (3) Imprisonment or fine or both,\\\" 10 DelC. \\u00a7 950(d), and \\\"[i]t shall be unlawful for a respondent to knowingly violate a protective order. Violations shall be punishable as a class A misdemeanor. Nothing in this subsection shall preclude the filing of a civil contempt petition by the petitioner for violations of a protective order issued under this part.\\\" 10 Del.C. \\u00a7 950(e).\\nThe United States and Delaware Constitutions both provide that no person shall be twice put in jeopardy of life or limb for the same offense. U.S. Const., amend. V., Del. Const., art. I, \\u00a7 8. Discussing the theory of double jeopardy, our Supreme Court has stated that\\n[t]he United States Supreme Court has recognized that the effect of the double jeopardy clause is to afford to criminal defendants several basic protections. Specifically, the Court has held that \\\"[the double jeopardy clause] protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense\\\".\\nTarr v. State, Del.Supr., 486 A.2d 672, 674 (1984) (quoting Ohio v. Johnson, 467 U.S. 493, 497-99, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 (1984)).\\nThe United States Supreme Court has ruled that the guarantee against double jeopardy proscribes exposure to criminal prosecutions for the same offense after conviction or acquittal and protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 716-17, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). Furthermore, the exposure to a subsequent criminal prosecution where double jeopardy may exist is not present in proceedings that are not \\\"essentially criminal.\\\" Breed v. Jones, 421 U.S. 519, 528-29, 95 S.Ct. 1779, 1785, 44 L.Ed.2d 346 (1975).\\n\\\"The essential nature of a proceeding is not determined by its form or label.... United States v. U.S. Coin & Currency, 401 U.S. 715, 718, 91 S.Ct. 1041, 1043, 28 L.Ed.2d 434 (1971). A proceeding is criminal for double jeopardy purposes, if it imposes a sanction intended as punishment. See Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 [L.Ed.] 917 (1938).\\\"\\nState v. Smith, Ct.Supr., 207 Conn. 152, 540 A.2d 679, 692 (1988) (underline supplied) (quoting State ex rel. Flowers v. Department of Health, Supr., 81 Wis.2d 376, 260 N.W.2d 727 (1978)).\\nIn a similar Pennsylvania case, the defendant contended that Pennsylvania's Protection From Abuse Act was a criminal proceeding. He based his contention, in part, on his belief that since the Pennsylvania Supreme Court had ruled that a violation of a protective order constituted criminal contempt, it followed that the original protection from abuse proceeding was itself a criminal proceeding. Moreover, he complained that it was the entry of the protection from abuse order which was the final disposition of a criminal prosecution. The Superior Court of Pennsylvania held that \\\"[tjhat reading is incorrect.\\\" Commonwealth v. Smith, 380 Pa.Super. 484, 552 A.2d 292, 293 (1988). Rather, the Court explained that the \\\"primary purpose of the act is not retrospective punishment, but rather, advance prevention of physical and sexual abuse.\\\" Id. 552 A.2d at 295 (citing Eichenlaub v. Eichenlaub, 340 Pa.Super. 552, 490 A.2d 918, 922 (1985)). In that regard, the Pennsylvania appellate court affirmed the trial court's denial of defendant's motion to quash the criminal charges.\\nThis Court, therefore, must decide whether a proceeding under Delaware's Protection from Abuse Act is a civil or criminal proceeding. In a related case, upon reviewing whether a license revocation proceeding is civil or criminal in nature, our Supreme Court stated that the \\\"revocation is essentially civil in nature, having as its goal 'the chastening of the errant motorist' (Barnes [v. Tofany, 27 N.Y.2d 74, 313 N.Y.S.2d 690, 694], 261 N.E.2d [617] at 620) (1970) and, more importantly, protection of the public from a dangerous driver.\\\" Villa v. State, Del.Supr., 456 A.2d 1229, 1232 (1983). Moreover, the \\\"primary purpose of 21 DelC., Chapter 28 [license revocation for habitual traffic offenders], is to foster public safety on the highways of this State, and not to punish persons who violate traffic regulations.\\\" State v. Kamalski, Del.Super., 429 A.2d 1315, 1318 (1981).\\nSimilarly, the Supreme Judicial Court of Maine has explained that punitive damages arising out of a civil action cannot infringe on a defendant's constitutional right against double jeopardy because such a claim \\\"is based upon a private wrong, and is clearly distinguishable from a criminal prosecution, which is brought solely on the behalf of the public.\\\" Tuttle v. Raymond, Me. Supr.Jud.Ct., 494 A.2d 1353, 1357 (1985).\\nThe Protection from Abuse Act, 10 DelC. \\u00a7 945-952, is not targeted at punishing the wrongdoer; rather, its purpose is to help protect the victim against further acts of violence or abuse. The petition is prosecuted by the petitioner , usually the victim. The Attorney General's Office is neither directly nor indirectly involved. Furthermore, the standard of proof at a protection from abuse hearing is by a preponderance of the evidence, 10 DelC. \\u00a7 948, which is clearly indic ative that the proceeding is civil in nature. Moreover, the addition of \\u00a7 951, which specifically provides that \\\"[n]othing in this part shall preclude a petitioner or law enforcement officer from filing criminal charges when probable cause exists\\\" is demonstrative of the legislative intent of providing the petitioner with both a civil and criminal remedy.\\nThe United States Supreme Court has concluded that both a criminal and a civil penalty may be imposed for the same act or course of conduct and yet be consistent with the constitutional protection against double jeopardy. One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 234-36, 93 S.Ct. 489, 492, 34 L.Ed.2d 438 (1972).\\nOur Supreme Court has also stated that \\\"[i]t is well established that double jeopardy 'only prohibits twice punishing a person criminally for the same offense, [and that] the State may impose both a criminal and a civil penalty for the same act.'\\\" Tarr v. State, Del.Supr., 486 A.2d 672, 675 (1984) (quoting State v. Kamalski, Del.Super., 429 A.2d 1315, 1318 (1981)). See also Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938). \\\"When the penalty sought to be imposed is a civil penalty, no question of double jeopardy arises.\\\" Kamalski, 429 A.2d at 1318.\\nTherefore, it is the determination of this Court that a proceeding under the Protection from Abuse Act in which the petitioner is seeking an order of protection from abuse is a civil proceeding. Accordingly, a subsequent criminal proceeding based upon the same facts as those which were alleged in the Petition for Order of Protection from Abuse does not infringe upon the constitutional prohibition against double jeopardy.\\nTurning to defendant's collateral es-toppel argument in support of his Motion to Dismiss, the United States Supreme Court has stated as follows:\\nUnder the judicially developed doctrine of collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involving a party to the prior litigation. Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979). Collateral estop-pel, like the related doctrine of res judica-ta, serves to \\\"reheve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage rebanee on adjudication.\\\" Allen v. McCurry, 449 U.S. 90, 94,101 S.Ct. [411, 415], 66 L.Ed.2d 308 (1980). In furtherance of those policies, this Court in recent years has broadened the scope of the doctrine of collateral es-toppel beyond its common law-limits. Ibid. It has done so by abandoning the requirement of mutuality of parties, Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313[,] 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), and by conditionally approving the \\\"offensive\\\" use of collateral estoppel by a nonparty to a prior lawsuit. Parklane Hosiery [Co. v. Shore], [439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979)].\\nUnited States v. Mendoza, 464 U.S. 154, 157-59, 104 S.Ct. 568, 571, 78 L.Ed.2d 379 (1984) (footnote omitted).\\nJustice Rehnquist, writing for the majority in Mendoza, stated that when collateral es-toppel issues arise between private litigants, \\\" 'no significant harm flows from enforcing a rule that affords a litigant only one full and fair opportunity to litigate an issue, and [that] there is no sound reason for burdening the courts with repetitive litigation.' \\\" Id. 464 U.S. at 159, 104 S.Ct. at 572 (quoting Standefer v. United States, 447 U.S. 10, 24, 100 S.Ct. 1999, 2008, 64 L.Ed.2d 689 (1980)). Thereafter, based upon policy reasons, the Court determined that nonmutual offensive collateral estoppel could not be applied against the United States Government in order to preclude litigation of issues. It is important to note, however, that in Mendoza, the Government was a party to prior litigation regarding substantially similar facts. Additionally, the party who was seeking to preclude the Government was not a party to the earlier litigation.\\nOur Supreme Court has also abandoned the requirement of mutuality for purposes of collateral estoppel. Columbia Casualty Co. v. Playtex FP, Inc., Del.Supr., 584 A.2d 1214, 1217 (1991).\\nThus, many jurisdictions no longer require that a litigant have been a party in the prior litigation or in privity with a party in the prior litigation in order to assert collateral estoppel. It is sufficient that the party against whom collateral estoppel is asserted was a previous party. .\\nId. (underline supplied).\\nOur Courts have also recognized that once a party to a prior proceeding has had a full and fair opportunity to litigate an issue in the first action, that issue may not be reargued by a party to the first proceeding. In re Asbestos Litigation (Lee), Del.Super., 517 A.2d 288, 293 (1986). In that regard, \\\"[t]he doctrine of collateral estoppel bars relit-igation of 'questions distinctly put in issue' and 'directly determined adversely to the party against which the estoppel is asserted.' \\\" Kostelanetz, Ritholz v. Himmelwright, 254 N.J.Super. 249, 603 A.2d 168, 169 (1991) (underline supplied) (quoting Eatough v. Board of Medical Examiners, 191 N.J.Super. 166, 465 A.2d 934 (1983)), aff'd, 264 N.J.Super. 578, 625 A.2d 488 (1993).\\nMutuality of parties need not exist for collateral estoppel to apply, but it must be shown that:\\n(1) the issue decided in the prior adjudication was identical with the one presented in the subsequent action, (2) the prior action was a judgment on the merits, and (3) the party against whom it was asserted had been a party or in privity with a party to the earlier adjudication.\\nId. (citations omitted).\\nAccordingly, this Court determines that the State cannot be collaterally estopped from litigating the issue of harassment as described in the criminal complaint. The State was not a party to the protection from abuse hearing and in that regard, did not have a full and fair opportunity to litigate its case against defendant. Therefore, defendant's motion to dismiss is denied.\\n. 10 Dele. \\u00a7 945-952.\\n. 10 Del.C. \\u00a7 949 provides the following forms of relief:\\n(1) Restrain the respondent from committing acts of domestic violence as defined in \\u00a7 945 of this title;\\n(2) Restrain the respondent from contacting or attempting to contact the petitioner;\\n(3) Grant exclusive possession of the residence or household to the petitioner or other resident, regardless of in whose name the residence is titled or leased. Such relief shall not affect title to any real property;\\n(4) Order that the petitioner be given temporary possession of specified personal property solely or jointly owned by respondent or petitioner, including but not limited to, motor vehicles, checkbooks, keys and other personal effects;\\n(5) Grant temporary custody of the children of the parties to the petitioner or to another family member, and provide for visitation with the respondent, if appropriate, including third party supervision of any visitation, if necessary, in accordance with Chapters 7 and 19 of Title 13;\\n(6) Order the respondent to pay support for the petitioner and/or for the parties' children, in accordance with Chapter 5 of Title 13, including temporary housing costs; (7) Order the respondent to pay to the petitioner or any other family member monetary compensation for losses suffered as a direct result of domestic violence committed by the respondent, including medical, dental and counseling expenses, loss of earnings or other support, cost or repair or replacement of real or personal property damaged or taken, moving or other travel expenses and litigation costs, including attorney's fees;\\n(8) Order the respondent to temporarily relinquish to the sheriff, constable or to a police officer the respondent's firearms for the duration of the order;\\n(9) Prohibit the respondent from transferring, encumbering, concealing or in any way disposing of specified property owned or leased by parties;\\n(10) Order the respondent, petitioner and other protected class members, individually and/or as a group, to participate in treatment or counseling programs;\\n(11) Grant any other reasonable relief necessary or appropriate to prevent or reduce the likelihood of future domestic violence.\\n. 23 Pa.C.S.A. \\u00a7 6101-6117 (original version at 35 P.S. \\u00a7 10181).\\n. Petitioner is defined to mean:\\n(i) A person who is a member of a protected class and files a petition alleging domestic violence against himself or herself or against his or her minor child or an infirm adult; ia) The Division of Child Protective Services acting in the interest of a minor child and files a petition alleging domestic violence; or (iii) The Division of Adult Protective Services acting in the interest of an infirm adult and files a petition alleging domestic violence.\\n10 Del.C. \\u00a7 945(3).\\n. The Court notes that a violation of a protective order which results in criminal contempt, followed by a subsequent criminal prosecution for the same conduct which resulted in the violation, may offend the principles of double jeopardy. See U.S. v. Dixon,-U.S.-, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993).\\n. By way of explanation, \\\"offensive use of collateral estoppel occurs when a plaintiff seeks to foreclose a defendant from relitigating an issue the defendant has previously litigated unsuccessfully in another action against the same or a different parly. Defensive use of collateral estop-pel occurs when a defendant seeks to prevent a plaintiff from relitigating an issue the plaintiff has previously litigated unsuccessfully in another action against the same or a different party.\\\" United States v. Mendoza, 464 U.S. at 159 n. 4, 104 S.Ct. at 571-572 n. 4.\"}"

delaware/12315925.json

@@ -0,0 +1 @@
+"{\"id\": \"12315925\", \"name\": \"Adrian DIECKMAN, on behalf of himself and all others similarly situated, Plaintiff Below, Appellant, v. REGENCY GP LP, Regency GP LLC, Energy Transfer Equity, L.P., Energy Transfer Partners, L.P., Energy Transfer Partners, GP, L.P., Michael J. Bradley, James W. Bryant, Rodney L. Gray, John W. McReynolds, Matthew S. Ramsey and Richard Brannon, Defendants Below, Appellees\", \"name_abbreviation\": \"Dieckman v. Regency GP LP\", \"decision_date\": \"2017-01-20\", \"docket_number\": \"No. 208, 2016\", \"first_page\": \"358\", \"last_page\": \"369\", \"citations\": \"155 A.3d 358\", \"volume\": \"155\", \"reporter\": \"West's Atlantic Reporter, Third Series\", \"court\": \"Delaware Supreme Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-11T01:41:57.276675+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and SEITZ, Justices, constituting the Court en Banc.\", \"parties\": \"Adrian DIECKMAN, on behalf of himself and all others similarly situated, Plaintiff Below, Appellant, v. REGENCY GP LP, Regency GP LLC, Energy Transfer Equity, L.P., Energy Transfer Partners, L.P., Energy Transfer Partners, GP, L.P., Michael J. Bradley, James W. Bryant, Rodney L. Gray, John W. McReynolds, Matthew S. Ramsey and Richard Brannon, Defendants Below, Appellees.\", \"head_matter\": \"Adrian DIECKMAN, on behalf of himself and all others similarly situated, Plaintiff Below, Appellant, v. REGENCY GP LP, Regency GP LLC, Energy Transfer Equity, L.P., Energy Transfer Partners, L.P., Energy Transfer Partners, GP, L.P., Michael J. Bradley, James W. Bryant, Rodney L. Gray, John W. McReynolds, Matthew S. Ramsey and Richard Brannon, Defendants Below, Appellees.\\nNo. 208, 2016\\nSupreme Court of Delaware.\\nSubmitted: November 16, 2016\\nDecided: January 20, 2017\\nStuart M. Grant, Esquire (argued) and James J. Sabella, Esquire, Grant <& Eisen-hofer P.A., Wilmington, Delaware; Mark Lebovitch, Esquire, Jeroen van Kwawegen, Esquire and Alla Zayenchik, Esquire, Bernstein Litowitz Berger & Grossman LLP, New York, New York; Mark C. Gardy, Esquire and James S. Notis, Esquire, Gardy & Notis, LLP, New York, New York, for Plaintiff, Appellant, Adrian Dieckman.\\nRolin P. Bissell, Esquire and Tammy L. Mercer, Esquire, Young Conaway Stargatt & Taylor, LLP, Wilmington, Delaware; Michael Holmes, Esquire (argued), Manuel Berrelez, Esquire and Craig Zieminski, Esquire, Vinson & Elkins LLP, Dallas, Texas for Defendants, Appellees, Regency GP LP, Regency GP LLC, Energy Transfer Equity, L.P., Energy Transfer Partners, L.P., Energy Transfer Partners, GP, L.P., Michael J. Bradley, Rodney L. Gray, John W. McReynolds and Matthew S. Ramsey.\\nDavid J. Teklits, Esquire and D. McKinley Measley, Esquire, Morris, Nichols, Arsht & Tunnell LLP, Wilmington, Delaware; M. Scott Barnard, Esquire, Michelle A. Reed, Esquire and Matthew V. Lloyd, Esquire, Akin Gump Strauss Hauer & Feld LLP, Dallas, Texas for Defendants, Appellees, James W. Bryant and Richard Brannon.\\nBefore STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and SEITZ, Justices, constituting the Court en Banc.\", \"word_count\": \"4990\", \"char_count\": \"32214\", \"text\": \"SEITZ, Justice:\\nIn this appeal, we again wade into the details of a master limited partnership agreement to decide whether the complaint's allegations can overcome the general partner's use of conflict resolution safe harbors to dismiss the case. The parties are identified by a host of confusing abbreviations, but the gist of the appeal is as follows.\\nThe plaintiff is a limited partner/unit-holder in the publicly-traded master limited partnership (\\\"MLP\\\"). The general partner proposed that the partnership be acquired through merger with another limited partnership in the MLP family. The seller and buyer were indirectly owned by the same entity, creating a conflict of interest. Because conflicts of interest often arise in MLP transactions, those who create and market MLPs have devised special ways to try to address them. The general partner in this case sought refuge in two of the safe harbor conflict resolution provisions of the partnership agreement \\u2014 \\\"Special Approval\\\" of the transaction by an independent Conflicts Committee, and \\\"Unaffiliated Unitholder Approval.\\\"\\nIn the MLP context, Special Approval typically means that a Conflicts Committee composed of members independent of the sponsor and its affiliates reviewed the transaction and made a recommendation to the partnership board whether to approve the transaction. Unaffiliated Unitholder Approval is typically just that \\u2014 a majority of unitholders unaffiliated with the general partner and its affiliates approve the transaction. Under the partnership agreement, if either safe harbor is satisfied, the transaction is deemed not to be a breach of the agreement.\\nThe partnership agreement required that the Conflicts Committee be independent, meaning that its members could not be serving on affiliate boards and were independent under the audit committee independence rules of the New York Stock Exchange. The plaintiff alleged in the complaint that the general partner failed to satisfy the Special Approval safe harbor because the Conflicts Committee was itself conflicted. According to the plaintiff, one of the Committee's two members began evaluating the transaction while still a member of an affiliate's board, and then resigned from the affiliate's board four days after he began his review to then become a member of the Conflicts Committee. On the same day the transaction closed, the committee member was reappointed to the seat left vacant for him on the affiliate's board.\\nThe plaintiff also alleged that the general partner failed to satisfy the Unaffiliated Unitholder Approval safe harbor because the general partner made false and misleading statements in the proxy statement to secure that approval. In the 165-page proxy statement sent to the unitholders, the general partner failed to disclose the conflicts within the Conflicts Committee. Instead, the proxy statement stated that Special Approval had been obtained by an independent Conflicts Committee.\\nThe general partner moved to dismiss the complaint and claimed that, in the absence of express contractual obligations not to mislead investors or to unfairly manipulate the Conflicts Committee process, the general partner need only satisfy what the partnership agreement expressly required \\u2014 to obtain the safe harbor approvals and follow the minimal disclosure requirements. In other words, whatever the general partner said in the proxy statement, and whomever the general partner appointed to the Conflicts Committee, was irrelevant because only the express requirements of the partnership agreement controlled and displaced any implied obligations not to undermine the protections afforded unitholders by the safe harbors.\\nThe Court of Chancery side-stepped the Conflicts Committee safe harbor, but accepted the general partner's argument that the Unaffiliated Unitholder Approval safe harbor required dismissal of the case. The court held that, even though the proxy statement might have contained materially misleading disclosures, fiduciary duty principles could not be used to impose disclosure obligations on the general partner beyond those in the partnership agreement, because the partnership agreement disclaimed fiduciary duties. Further, the court agreed with the defendants that the only express disclosure requirement of the agreement in the event of a merger \\u2014 that the general partner simply provide either a summary of, or a copy of, the merger agreement \\u2014 displaced any implied contractual duty to disclose in the proxy statement material facts about the conflicts within the Conflicts Committee.\\nOn appeal, the plaintiff concedes that if the general partner met the requirements of either safe harbor, his breach of contract claim would fail. The plaintiff also does not argue with the Court of Chancery's ruling that the partnership agreement's express disclosure requirements cannot be supplanted by implied or fiduciary-based disclosure obligations. Instead, he argues that the Court of Chancery erred when it concluded that the general partner satisfied the Unaffiliated Unitholder Approval safe harbor, because he alleged sufficient facts to show that the approval was obtained through false and misleading statements. The plaintiff also claims that, for pleading stage purposes, he has made a sufficient showing that the Special Approval safe harbor was not satisfied, because the Conflicts Committee was not independent.\\nWe view the central issue in the dispute through a different lens than the Court of Chancery. The Court of Chancery was correct that the implied covenant of good faith and fair dealing cannot be used to supplant the express disclosure requirements of the partnership agreement. But the court focused too narrowly on the partnership agreement's disclosure requirements. Instead, the center of attention should have been on the conflict resolution provision of the partnership agreement.\\nThe partnership agreement's conflict resolution provision is a powerful tool in the general partner's hands because it can be used to shield a conflicted transaction from judicial review. But the conflicts resolution provision also operates for the unit-holders' benefit. It ensures that, before a safe harbor is reached by the general partner, unaffiliated unitholders have a vote, or the conflicted transaction is reviewed and recommended by an independent Conflicts Committee.\\nThe partnership agreement does not address how the general partner must conduct itself when seeking the safe harbors. But where, as here, the express terms of the partnership agreement naturally imply certain corresponding conditions, unithold-ers are entitled to have those terms enforced according to the reasonable expectations of the parties to the agreement. The implied covenant is well-suited to imply contractual terms that are so obvious\\u2014 like a requirement that the general partner not engage in misleading or deceptive conduct to obtain safe harbor approvals\\u2014 that the drafter would not have needed to include the conditions as express terms in the agreement.\\nWe find that the plaintiff has pled sufficient facts, which we must accept as true at this stage of the proceedings, that neither safe harbor was available to the general partner because it allegedly made false and misleading statements to secure Unaffiliated Unitholder Approval, and allegedly used a conflicted Conflicts Com mittee to obtain Special Approval. Thus, we reverse the Court of Chancery's order dismissing Counts I and II of the complaint.\\nI.\\nAs alleged in the complaint, the plaintiff, Adrian Dieckman, is a unitholder of Regency, The business entity defendants, their relationships, and other abbreviations are as follows:\\nRegency Energy Partners LP (\\\"Regency\\\") \\u2014 a publicly-traded Delaware limited partnership engaged in the gathering and processing, contract compression, treating and transportation of natural gas and the transportation, fractionation and storage of natural gas liquids.\\nRegency General Partner LP (\\\"General Partner LP\\\") \\u2014 -the general partner of Regency.\\nRegency General Partner LLC (\\\"General Partner LLC\\\") \\u2014 a Delaware LLC and the general partner of General Partner LP.\\nEnergy Transfer Partners L.P. (\\\"ETP\\\") \\u2014 the general partner of Sunoco LP; a 43% owner of limited partnership interests in Sunoco and a 100% owner of Sunoco's distribution rights.\\nEnergy Transfer Partners, GP, L.P. (\\\"EGP\\\") \\u2014 the general partner of ETP. Energy Transfer Equity, L.P. (\\\"ETE\\\") \\u2014 indirectly owns Regency's general partner and ETP's general partner.\\nConflicts Committee \\u2014 the committee formed by the General Partner under \\u00a7 7.9(a) of the LP Agreement.\\nLP Agreement \\u2014 the Regency limited partnership agreement.\\nThe following is a diagram from the Court of Chancery opinion showing the interconnected relationships among the entities before the merger, and Regency's status after the merger:\\nThe remaining defendants are the six members of General Partner LP's board of directors \\u2014 Michael J. Bradley (also CEO of the General Partner), James W. Bryant, Rodney L. Gray, John W. McReynolds (also CFO and president of ETE), Matthew S. Ramsay, and Richard Brannon. Bryant and Brannon served on the Conflicts Committee of the General Partner's board. Brannon was a Sunoco director until January 20, 2015, and was reappointed to the Sunoco board on May 5, 2015. Bryant was appointed to Sunoco's board on May 5, 2015.\\nA.\\nAccording to the complaint and the proxy statement, distributed to unithold-ers, the ETP and ETE boards met to discuss a merger between ETP and Regency. ETP eventually made a merger proposal to Regency, where Regency would be merged into ETP for a combination of cash and stock using an exchange ratio of 0.4044 ETP common units for one Regency common unit, and a $137 million cash payment. Because of the undisputed conflicts of interest in the proposed merger transaction, the General Partner looked to the conflict resolution provisions of the LP Agreement.\\nUnder \\u00a7 7.9(a) of the LP Agreement, entitled \\\"Resolution of Conflicts of Interest; Standards of Conduct and Modification of Duties,\\\" unless otherwise provided in another agreement, the General Partner can resort to several safe harbors to im-muniz\\u00e9 conflicted transactions from judicial review:\\n[A]ny resolution or course of action by the General Partner or its Affiliates in respect of such conflict of interest shall be permitted and deemed approved by all Partners, and shall not constitute a breach of this Agreement . or of any duty stated or implied by law or equity, if the resolution or course of action in respect of such conflict of interest is (i) approved by Special Approval, (ii) approved by the vote of a majority of the Common Units (excluding Common Units owned by the General Partner and its Affiliates), (iii) on terms no less favorable to the Partnership than those generally being provided to or available from unrelated third parties, or (iv) fair and reasonable to the Partnership, taking into account the totality of the relationships between the parties involved (including other transactions that may be particularly favorable or advantageous to the Partnership).\\nThe General Partner sought the protections of the safe harbors by Special Approval under \\u00a7 7.9(a)(i) and Unaffiliated Unitholder Vote under \\u00a7 7.9(a)(ii). Special Approval is defined in the LPA as \\\"approval by a majority of the members of the Conflicts Committee.\\\" The Conflicts Committee must be:\\n[A] committee of the Board of Directors of the general partner of the General Partner composed entirely of two or more directors who are not (a) security holders, officers or employees of the General Partner, (b) officers, directors or employees of any Affiliate of the General Partner[,] or (c) holders of any ownership interest in the Partnership Group other than Common Units and who also meet the independence standards required of directors who serve on an audit committee of a board of directors established by the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder and by the National Securities Exchange on which the Common Units are listed or admitted to trading.\\nFor purposes of subsection (b), \\\"Affiliate\\\" is defined as any person \\\"that directly or indirectly through one or more intermediaries controls, is controlled by or is under control with, the Person in question.\\\" Sunoco and the General Partner are both controlled by ETE, and are \\\"Affiliates,\\\" under the LP Agreement. Thus, Sunoco board members were not eligible to serve as members of the General Partner's Conflicts Committee. Nor was it clear that they would meet the audit committee independence rules of the New York Stock Exchange.\\nB.\\nThe General Partner appointed Brannon and Bryant to the Conflicts Committee. The complaint alleges that before the proposed transaction, Brannon was a Sunoco director. On January 16, 2015, ETE appointed Brannon to the General Partner's board, while still a director of Sunoco. The plaintiff claims that, from January 16-20, while a member of both boards, Brannon consulted informally on the proposed transaction. According to the complaint, Brannon then temporarily resigned from the Sunoco board on January 20, and on January 22, became an official member of the Conflicts Committee when formal resolutions were passed creating the Commit tee. Brannon and Bryant then negotiated on behalf of Regency with ETP and recommended the merger transaction to the General Partner. On April 30, 2015, the day that the merger closed, Brannon was reappointed to the Sunoco board, and Bryant was also appointed to Sunoco board.\\nThe complaint also alleges that the Conflicts Committee retained a conflicted financial advisor, J.P. Morgan. J.P. Morgan was supposedly chosen by Regency's CFO, Long, and not by the Conflicts Committee. Because it was allegedly known that Long was expected to become the CFO of ETP GP LLC, the plaintiff claims that J.P. Morgan was beholden to Long and would favor its long-term relationship with the Energy Transfer entities.\\nThe plaintiff claims that the negotiations between the Conflicts Committee and ETP were ceremonial and only lasted a few days. According to the complaint, between January 23 and January 25, the Conflicts Committee made a perfunctory and slightly increased counteroffer to ETP's offer, which would have achieved a 15% premium to the closing price of common units. ETP rejected the counteroffer, and the parties settled on ETP's opening bid of a 13.2% premium to the January 23 closing price. The Conflicts Committee recommended that the General Partner pursue the transaction on the original terms proposed by ETP, which the General Partner approved on January 25. The plaintiff alleges that the entire process from start to finish lasted nine days.\\nC.\\nThe LP Agreement only required minimal disclosure when a merger transaction was considered by the unitholders \\u2014 a summary of, or a copy of, the merger agreement. But the General Partner went beyond the minimal requirements in the LP Agreement. To gain Unaffiliated Unitholder Approval and the benefit of the safe harbor, the General Partner filed a 165-page proxy statement and disseminated it and a copy of the merger agreement to the unitholders.\\nThe proxy statement stated that the \\\"Conflicts Committee consists of two independent directors: Richard D. Brannon (Chairman) and James W. Bryant.\\\" It also stated that the Conflicts Committee approved the transaction, and such approval \\\"constituted 'Special Approval' as defined in the Regency partnership agreement.\\\" The proxy statement did not inform unit-holders about the circumstances of Bryant's alleged overlapping and shifting allegiances, including reviewing the proposed transaction while still a member of the Sunoco board, his nearly contemporaneous resignation from the Sunoco board and appointment to the General Partner's board and then the Conflicts Committee, or Brannon's appointment and Bryant's reappointment to the Sunoco board the day the transaction closed. At a special meeting of Regency's unitholders on April 28, 2015, a majority of Regency's unithold-ers, including a majority of its unaffiliated unitholders, approved the merger.\\nD.\\nAfter plaintiff filed his complaint challenging the fairness of the merger transaction, the defendants moved to dismiss under Court of Chancery Rule 12(b)(6), invoking the protections of Special Approval and Unaffiliated Unitholder Approval under the LP Agreement. The Chancellor reached only the Unaffiliated Unitholder Vote safe harbor. After finding that all fiduciary duties were displaced by contractual terms, the court noted that the LP Agreement contained \\\"just a single disclosure requirement\\\" and thus the LP Agreement terms \\\"unambiguously extinguish the duty of disclosure and replace it with a single disclosure requirement.\\\" According to the court, given the express disclosure obligation, the implied covenant of good faith and fan- dealing \\\"has no work to do\\\" because \\\"the express waiver of fiduciary duties and the clearly defined disclosure requirement . prevent the implied covenant from adding any additional disclosure obligations to the agreement.\\\" Once the Unaffiliated Unitholder Vote safe harbor applied, the court dismissed the case because \\\"the Merger is deemed approved by all the limited partners, including plaintiff, and is immune to challenge for contractual breach.\\\"\\nII.\\nThe appeal comes to us from the Court of Chancery's decision granting the defendants' motion to dismiss. Our review is de novo.\\nA.\\nWe start with the settled principles of law governing Delaware limited partnerships. The Delaware Revised Uniform Limited Partnership Act (\\\"DRUPLA\\\") gives \\\"maximum effect to the principle of freedom of contract.\\\" One freedom often exercised in the MLP context is eliminating any fiduciary duties a partner owes to others in the partnership structure. The act allows drafters of Delaware limited partnerships to modify or eliminate fiduciary-based principles of governance, and displace them with contractual terms.\\nWith the contractual freedom accorded partnership agreement drafters, and the typical lack of competitive negotiations over agreement terms, come corresponding responsibilities on the part of investors to read carefully and understand their investment. Investors must appreciate that \\\"with the benefits of investing in alternative entities often comes the limitation of looking to the contract as the exclusive source of protective rights.\\\" In other words, investors can no longer hold the general partner to fiduciary standards of conduct, but instead must rely on the express language of the partnership agreement to sort out the rights and obligations among the general partner, the partnership, and the limited partner investors.\\nEven though the express terms of the agreement govern the relationship when fiduciary duties are waived, investors are not without some protections. For instance, in the case of an ambiguous partnership agreement of a publicly traded limited partnership, ambiguities are resolved as with publicly traded corporations, to give effect to the reading that best fulfills the reasonable expectations an investor would have had from the face of the agreement. The reason for this is simple. When investors buy equity in a public entity, they necessarily rely on the text of the public documents and public disclosures about that entity, and not on parol evidence. And, of course, another protection exists. The DRUPLA provides for the implied covenant of good faith and fair dealing, which cannot be eliminated by contract.\\nThe implied covenant is inherent in all contracts and is used to infer contract terms \\\"to handle developments or contractual gaps that the asserting party pleads neither party anticipated.\\\" It applies \\\"when the party asserting the implied covenant proves that the other party has acted arbitrarily or unreasonably, thereby frustrating the fruits of the bargain that the asserting party reasonably expected.\\\" The reasonable expectations of the contracting parties are assessed at the time of contracting. In a situation like this, involving a publicly traded MLP, the pleading-stage inquiry focuses on whether, based on a reading of the terms of the partnership agreement and consideration of the relationship it creates between the MLP's investors and managers, the express terms of the agreement can be reasonably read to imply certain other conditions, or leave a gap, that would prescribe certain conduct, because it is necessary to vindicate the apparent intentions and reasonable expectations of the parties.\\nB.\\nThe Court of Chancery decided that the implied covenant could not be used to remedy what the plaintiff alleged were faulty safe harbor approvals because the LP Agreement waived fiduciary-based standards of conduct and contained an express contractual term addressing what disclosures were required in merger transactions. According to the court, the implied covenant had \\\"no work to do\\\" because the express disclosure requirement displaced the implied covenant.\\nThe Court of Chancery erred by focusing too narrowly on whether the express disclosure provision displaced the implied covenant. Instead, it should have focused on the language of the safe harbor approval process, and what its terms reasonably mean. Although the terms of the LP Agreement did not compel the General Partner to issue a proxy statement, it chose to undertake the transaction, which the LP Agreement drafters would have known required a pre-unitholder vote proxy statement. Thus, the General Partner voluntarily issued a proxy statement to induce unaffiliated unitholders to vote in favor of the merger transaction. The favorable vote led not only to approval of the transaction, but allowed the General Partner to claim the protections of the safe harbor and immunize the merger transaction from judicial review. Not surprisingly, the express terms of the LP Agreement did not address, one way or another, whether the General Partner could use false or misleading statements to enable it to reach the safe harbors.\\nWe find that implied in the language of the LP Agreement's conflict resolution provision is a requirement that the General Partner not act to undermine the protections afforded unitholders in the safe harbor process. Partnership agreement drafters, whether drafting on their own, or sitting across the table in a competitive negotiation, do not include obvious and provocative conditions in an agreement like \\\"the General Partner will not mislead unitholders when seeking Unaffiliated Un-itholder Approval\\\" or \\\"the General Partner will not subvert the Special Approval process by appointing conflicted members to the Conflicts Committee.\\\" But the terms are easily implied because \\\"the parties must have intended them and have only failed to express them because they are too obvious to need expression.\\\" Stated another way, \\\"some aspects of the deal are so obvious to the participants that they never think, or see no need, to address them.\\\"\\nOur use of the implied covenant is based on the words of the contract and not the disclaimed fiduciary duties. Under the LP Agreement, the General Partner did not have the full range of disclosure obligations that a corporate fiduciary would have had. Yet once it went beyond the minimal disclosure requirements of the LP Agreement, and issued a 165-page proxy statement to induce the unaffiliated unit-holders not only to approve the merger transaction, but also to secure the Unaffiliated Unitholder Approval safe harbor, implied in the language of the LP Agreement's conflict resolution provision was an obligation not to mislead unitholders.\\nFurther, the General Partner was required to form a Conflicts Committee comprised of members who:\\n[A]re not (a) security holders, officers or employees of the General Partner, (b) officers, directors or employees of any Affiliate of the General Partner or (c) holders of any ownership interest in the Partnership Group other than Common Units and who also meet the independence standards required of directors who serve on an audit committee of a board of directors established by the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder and by the National Securities Exchange on which the Common units are listed or admitted to trading.\\nAs with the contract language regarding Unaffiliated Unitholder Approval, this language is reasonably read by unitholders to imply a condition that a Committee has been established whose members genuinely qualified as unaffiliated with the General Partner and independent at all relevant times. Implicit in the express terms is that the Special Committee membership be genuinely comprised of qualified members and that deceptive conduct not be used to create the false appearance of an unaffiliated, independent Special Committee.\\nC.\\nThe plaintiff has agreed that the LP Agreement's safe harbor provisions, if satisfied, would preclude judicial review of the transaction. But we find that the plaintiff has pled sufficient facts to support his claims that those safe harbors were unavailable to the General Partner. Instead of staffing the Conflicts Committee with independent members, the plaintiff alleges that the chair of the two-person Committee started reviewing the transaction while still a member of an Affiliate board. Just a few days before the General Partner created the Conflicts Committee, the same director resigned from the Affiliate board and became a member of the General Partner's board, and then a Conflicts Committee member.\\nFurther, after conducting the negotiations with ETE over the merger terms and recommending the merger transaction to the General Partner, the two members of the Conflicts Committee joined an Affiliate's board the day the transaction closed. The plaintiff also alleges that the Conflicts Committee members failed to satisfy the audit committee independence rules of the New York Stock Exchange, as required by the LP Agreement. In the proxy statement used to solicit Unaffiliated Unitholder Approval of the merger transaction, the plaintiff alleges that the General Partner materially misled the unitholders about the independence of the Conflicts Committee members. In deciding to approve the merger, a reasonable unitholder would have assumed based on the disclosures that the transaction was negotiated and approved by a Conflicts Committee composed of persons who were not \\\"affiliates\\\" of the general partner and who had the independent status dictated by the LP Agreement. This assurance was one a reasonable investor may have considered a material fact weighing in favor of the transaction's fairness.\\nThe plaintiff has therefore pled facts raising sufficient doubt about the General Partner's ability to use the safe harbors to shield the merger transaction from judicial review. Thus, we reverse the judgment of the Court of Chancery dismissing Counts I and II of the complaint.\\n. Like the Court of Chancery, for simplicity's sake we collapse General Partner LP and General Partner LLC into one as the \\\"General Partner\\\" of Regency, recognizing that there were two layers of general partners.\\n. The proxy statement incorporated into the complaint and relied on by the parties is properly considered on a motion to dismiss. Allen v. Encore Energy Partners, L.P., 72 A.3d 93, 96 n.2 (Del. 2013).\\n. App. to Opening Br. at 105 (LP Agreement \\u00a7 7.9(a)).\\n. Id. at 70 (LP Agreement \\u00a7 1.1).\\n. The general partner of the General Partner is Regency GP LLC. As noted before, for simplicity salte, \\\"General Partner\\\" in this decision includes both Regency GP LP and Regency GP LLC.\\n. App. to Opening Br. at 62 (LP Agreement \\u00a7 1.1).\\n. Id, at 49 (LP Agreement \\u00a7 1.1).\\n. Id. at 124-35 (LP Agreement \\u00a7 14.3(a)).\\n. Id. at 215.\\n. Id.\\n. Dieckman v. Regency GP LP, 2016 WL 1223348, at *9 (Del. Ch. Mar. 29, 2016).\\n. Id.\\n. Id. at *10.\\n. Winshall v. Viacom Int'l, Inc., 76 A.3d 808, 813 (Del. 2013).\\n. 6 Del. C. \\u00a7 17-1101(c).\\n. 6 Del. C. \\u00a7 L7 \\u2014 1101(d).\\n. The Haynes Family Trust v. Kinder Morgan G.P., Inc., 135 A.3d 76, 2016 WL 912184, at *2 (Del. Mar. 10, 2016).\\n. Bank of New York Mellon v. Commerzbank Capital Funding Trust II, 65 A.3d 539, 551-52 (Del. 2013) (construing an agreement against the drafter to give effect to the \\\"investors' reasonable expectation\\\" using a species of the contra proferentem doctrine); see also Norton v. K-Sea Transp. Partners L.P., 67 A.3d 354, 365 n. 56 (Del. 2013); SI Mgmt., L.P. v. Wininger, 707 A.2d 37, 42-43 (Del. 1998).\\n.Stockman v. Heartland Industrial Partners, L.P., 2009 WL 2096213 at *5 (Del. Ch. My 14, 2009) (ambiguities are construed against drafter \\\"to protect the reasonable expectations of people who join a partnership or other entity after it was formed and must rely on the face of the operating agreement to understand their rights and obligations when making the decision to join,\\\").\\n. See 6 Del. C. \\u00a7 17 \\u2014 1101(d).\\n. Nemec v. Shrader, 991 A.2d 1120, 1125 (Del. 2010) (internal citations omitted).\\n. Id. at 1126 (citing Dunlap v. State Farm Fire & Cas. Co., 878 A.2d 434, 442 (Del. 2005)).\\n. Id. (citing Cont'l Ins. Co. v. Rutledge & Co., 750 A.2d 1219, 1234 (Del. Ch. 2000)).\\n. Dutchman, 2016 WL 1223348, at *9.\\n. Danby v. Osteopathic Hospital Ass'n of Del., 101 A.2d 308, 313-14 (Del. Ch. 1953), aff'd, 104 A.2d 903 (Del. 1954).\\n. In re El Paso Pipeline Partners, L.P. Deriv. Litig., 2014 WL 2768782, at *16 (Del. Ch. June 12, 2014), rev'd on other grounds sub nom. El Paso Pipeline GP Co., L.L.C. v. Brinckerhoff, 152 A.3d 1248, 2016 WL 7380418 (Del. 2016) (citing Katz v. Oak Indus. Inc., 508 A.2d 873, 880 (Del. Ch. 1986)); 508 A.2d at 880 (\\\"[P]arties occasionally have understandings or expectations that were so fundamental that they did not need to negotiate about those expectations.\\\") (quoting Corbin on Contracts (Kaufman Supp. 1984), \\u00a7 570)); see also Cincinnati SMSA Ltd. P'ship v. Cincinnati Bell Cellular Sys. Co., 1997 WL 525873, at *5 (Del. Ch. Aug. 13, 1997), aff'd, 70S A.2d 989 (Del. 1998) (\\\"Terms are to be implied in a contract not because they are reasonable but because they are necessarily involved in the contractual relationship so that the parties must have intended them and have only failed to express them because they are too obvious to need expression.\\\" (quoting Danby, 101 A.2d at 313-14)).\\n. App. to Opening Br. at 62 (LP Agreement \\u00a7 1.1).\"}"

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+"{\"id\": \"1773695\", \"name\": \"LESLIE ANGELINI and ANDREW KOPYLEC, Petitioners, v. The COURT OF COMMON PLEAS IN AND FOR NEW CASTLE COUNTY, and the HONORABLE A. JAMES GALLO and ROBERT WAHL, sitting as Judges of the said Court and the MUNICIPAL COURT OF THE CITY OF WILMINGTON and the HONORABLE THOMAS HERLIHY, JR., and SIDNEY J. CLARK, sitting as Judges of the said Court, Respondents\", \"name_abbreviation\": \"Angelini v. Court of Common Pleas\", \"decision_date\": \"1964-11-17\", \"docket_number\": \"No. 76\", \"first_page\": \"84\", \"last_page\": \"88\", \"citations\": \"58 Del. 84\", \"volume\": \"58\", \"reporter\": \"Delaware Reports\", \"court\": \"Delaware Supreme Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T23:39:41.520163+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"LESLIE ANGELINI and ANDREW KOPYLEC, Petitioners, v. The COURT OF COMMON PLEAS IN AND FOR NEW CASTLE COUNTY, and the HONORABLE A. JAMES GALLO and ROBERT WAHL, sitting as Judges of the said Court and the MUNICIPAL COURT OF THE CITY OF WILMINGTON and the HONORABLE THOMAS HERLIHY, JR., and SIDNEY J. CLARK, sitting as Judges of the said Court, Respondents.\", \"head_matter\": \"LESLIE ANGELINI and ANDREW KOPYLEC, Petitioners, v. The COURT OF COMMON PLEAS IN AND FOR NEW CASTLE COUNTY, and the HONORABLE A. JAMES GALLO and ROBERT WAHL, sitting as Judges of the said Court and the MUNICIPAL COURT OF THE CITY OF WILMINGTON and the HONORABLE THOMAS HERLIHY, JR., and SIDNEY J. CLARK, sitting as Judges of the said Court, Respondents.\\nNovember 17, 1964.\\nWOLCOTT and CAREY, Justices, and STIFTEL, Judge, sitting.\\nVictor F. Battaglia, of Theisen & Lank, for petitioners.\\nCharles F. Richards Jr., Deputy Atty. Gen., for respondents.\\nSupreme Court of Delaware.\\nNo. 76,\\n1964.\", \"word_count\": \"1113\", \"char_count\": \"6789\", \"text\": \"CAREY, Justice.\\nThe petitioners filed an action in the Superior Court seeking a writ of prohibition to restrain the respondent Courts from proceeding further with various criminal charges pending against them. These charges were alleged violations of certain provisions of T. 21 Ch. 41, our traffic regulations or \\\"rules of the road,\\\" committed prior to June 5, 1964. By 54 L. of D. Ch. 160, approved on December 5, 1963, those \\\"rules of the road\\\" were repealed and new ones adopted, although the language of many were in fact unchanged. The new statute became effective six months after approval by the Governor, i. e., June 5,1964. Petitioners maintain that there is no saving clause in the new Act permitting prosecution of violations which occurred before its effective date, and that such violations therefore cannot be further prosecuted.\\nThe Superior Court certified to us the following questions for decision:\\n\\\"1. Did Chapter 160, Vol. 54, Del. Laws repeal the provisions in Title 21, Chapter 41, Del. C. \\u2014Rules of Road \\u2014 so that proceedings pending on the effective day of Chapter 160, Vol. 54 Del. Laws could not be further prosecuted?\\n\\\"2. Is Section 5 of Chapter 160, Vol. 54 Del. Laws to be construed as a 'savings clause' thus keeping effective any criminal prosecution pending at the time that Chapter 160, Vol. 54 Del. Laws became effective in accordance with its provisions?\\\"\\nWe accepted certification because the disposition of a very considerable number of cases pending in various trial Courts has been stayed pending determination of these questions.\\n54 L. of D.Ch. 160 contains a lengthy preamble reciting that our traffic regulations required modernizing and revising so as to make them uniform with those of other states; the purpose of this act is to accomplish that result. Section 1 commences with these words: \\\"Chapter 41 Title 21 of the Delaware Code, is repealed and a new Chapter 41 and a new Chapter 42 are inserted in lieu thereof \\\". Section 5 provides: \\\"This act shall not have a retroactive effect and shall not apply to any traffic accident, to any cause of action arising out of a traffic accident or judgment arising therefrom or to any violation of the motor vehicle laws of this State, occurring prior to the effective date of this Act.\\\"\\nRespondents do not dispute the proposition that, where a criminal statute is repealed and there is no express or implied savings clause, all actions which have not attained final judgment are to be terminated. They contend, however, that Section 5 is a savings clause which preserves all pending criminal proceedings. We agree. The section states that the Act shall not apply to \\\"any violation of the motor vehicle laws of this State, occurring prior to the effective date of this Act.\\\" A part of \\\"this Act\\\" was the repealer clause, and Section 5 applies to that repealer as well as to the other parts of the statute. In other words, the repealer itself has no effect upon violations occurring prior to June 5,1964.\\nPetitioners contend, however, that Section 5 does not preserve pending criminal prosecutions because it does not specifically say so; that criminal statutes are to be construed strictly in favor of a defendant; and that Section 5 is ambiguous and must be given that interpretation most favorable to petitioners. They suggest that the only purpose of the quoted language is to insure that no prior violation should be prosecuted under the new provision. There are at least two answers to these contentions. First, there is no requirement that a savings clause be couched in any specific language; Crawford on Statutory Construction Sec. 300; any language will suffice which fairly shows a legislative intent not to forgive prior violations. Secondly, if we accept arguendo the suggestion that the clause is capable of two interpretations, we would unhesitatingly construe Section 5 contrary to petitioners' theory.\\nThe object of construction is to ascertain the legislative intent from the language used. Strict construction of a statute is more in the nature of an aid than an end; it cannot be relied upon as a single, precise formula for solving a problem. It does not eliminate from consideration other guides to interpretation. Blaustein v. Standard Oil Co., 4 Terry 449, 49 A.2d 726. It is a fallacy to say that, if the statute can have two meanings, the Court must automatically accept that meaning which is favorable to a defendant. Thus, the rule of strict construction does not prevent consideration of the general purpose of the Legislature and the acceptance of that meaning which best harmonizes with the statutory design; likewise, it does not require an unreasonable construction, or one which results in an injustice which the Legislature should not be presumed to have intended. 50Am.Jur.436 etc.\\nIn the present case, the stated purpose of the Legislature was to make our motor vehicle laws substantially uniform with those of other states in order to promote safety and transportation efficiency. Obviously, that purpose would not be served, but would actually be harmed, by interpreting the clause in the manner suggested by petitioners. Furthermore, such an interpretation would impute to the Legislature an intent to discriminate without a reasonable basis therefor, i.e., an intent, formed six months in advance, to punish those offenders whose cases were concluded within the six-month period, but to forgive those whose cases could not be disposed of during that time. We are unwilling to ascribe to our lawmaking authorities any such discriminatory intent when the language used by them is reasonably capable of a contrary construction.\\nWe neither approve nor disapprove the holding in State v. McGonigal, Del. Super., 189 A.2d 670, but simply note that the statute there involved contained no provision similar to Section 5 of the present act. We likewise refrain from commenting upon a theory advanced by respondents, to the effect that a preservation of pending prosecutions is implied from the reenactment of new regulations simultaneously with repeal of the old ones.\\nQuestion No. 1 will be answered in the negative and question No. 2 will be answered in the affirmative.\"}"

delaware/1778748.json

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+"{\"id\": \"1778748\", \"name\": \"Michael W. Audet, a Minor Child, by his father and next friend, Edgar J. Audet, and Edgar J. Audet, individually, Plaintiffs, v. Kathleen Convery, a Minor Child, and Robert J. Convery, father of Kathleen Convery, and Farmers Mutual Insurance Company of Delaware, a Delaware corporation, Defendants\", \"name_abbreviation\": \"Audet v. Convery\", \"decision_date\": \"1963-01-09\", \"docket_number\": \"No. 474\", \"first_page\": \"333\", \"last_page\": \"336\", \"citations\": \"55 Del. 333\", \"volume\": \"55\", \"reporter\": \"Delaware Reports\", \"court\": \"Delaware Superior Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T23:59:10.871698+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Michael W. Audet, a Minor Child, by his father and next friend, Edgar J. Audet, and Edgar J. Audet, individually, Plaintiffs, v. Kathleen Convery, a Minor Child, and Robert J. Convery, father of Kathleen Convery, and Farmers Mutual Insurance Company of Delaware, a Delaware corporation, Defendants.\", \"head_matter\": \"Michael W. Audet, a Minor Child, by his father and next friend, Edgar J. Audet, and Edgar J. Audet, individually, Plaintiffs, v. Kathleen Convery, a Minor Child, and Robert J. Convery, father of Kathleen Convery, and Farmers Mutual Insurance Company of Delaware, a Delaware corporation, Defendants.\\n(January 9, 1963.)\\nStorey, J., sitting.\\nEdmund D. Lyons (of the firm of Morris, James, Hitch-ens and Williams) for the Plaintiffs.\\nDavid Snellenburg, II (of the firm of Killoran and Van Brunt) for the Defendants.\\nSuperior Court for New Castle County,\\nNo. 474,\\nCivil Action, 1962.\", \"word_count\": \"611\", \"char_count\": \"3577\", \"text\": \"Storey, Justice.\\nThis is a motion for summary judgment filed by defendant, Kathleen Convery. The action sounds in tort and is predicated upon the loss of plaintiff's eye allegedly caused by a negligent act of defendant.\\nOn June 29, 1961, defendant, Kathleen Convery, was six years, eleven months and three weeks old. She was playing \\\"house\\\" in a public park when the plaintiff, accompanied by some of his friends, interfered with the activities by sitting on a large rock where she had been playing. She asked them to move so that she could break a bottle against the rock, and even though they refused to move, she nevertheless threw the glass bottle, causing it to break and shatter. It shattered and a piece struck plaintiff, destroying his right eye.\\nDefendant, Kathleen, asserts and urges that she was incapable of negligence as a matter of law.\\nThe Supreme Court of Delaware has already established that a minor may be guilty of contributory negligence. It has further held that a question of this type hinges on the maturity and capacity of the child, the ability and understanding to appreciate the particular dangers involved, as well as other pertinent circumstances. Thus, the question of negligence is one for determination by a jury. Pokoyski v. McDermott, 3 Storey 253, 167 A. 742 (1961).\\nI recognize that the law in this area abounds in conflicts. However, our Supreme Court has clearly defined the law with regard to contributory negligence of a minor and I fail to perceive the necessity of creating other criteria for a minor's primary negligence. They go hand in hand.\\nThis Court recognizes that some jurisdictions follow the rule that a minor, below the age of seven years, cannot be guilty of actionable negligence as a matter of law. I cannot, however, adopt such a rule. On the other hand, there is merit to the theory that a rebuttable presumption exists that a minor below the age of seven years cannot be guilty of actionable negligence. Bush v. New Jersey & N. Y. Transit Co., 30 N. J. 345, 153 A. 2d 28, 77 A. L. R 2d 908 (1959).\\nI do not consider this position to conflict with Pokoyski, supra, since that rule relates to minors in general. Because the minor involved in Pokoyski was ten years of age, it was unnecessary for the Supreme Court to express itself on any refinements to the general rule stated therein.\\nI, therefore, hold that a minor below the age of seven years can be guilty of actionable negligence. However, the plaintiff must overcome the presumption that such minors are as a general rule incapable of negligence. It thus follows that such matters are within the province of the jury and I so hold.\\nI assume, however, there is some age under seven at which age it could and would be said as a matter of law that such a minor could not be guilty of either primary or contributory negligence.\\nFor the reasons assigned, the motion of the defendant, Kathleen Convery, for summary judgment, is denied.\\nOn presentation, Order will be entered accordingly.\"}"

delaware/1861457.json

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+"{\"id\": \"1861457\", \"name\": \"Daniel Woolman and John W. Sullivan, trading as Woolman & Sullivan, v. Jonathan Zebley and Daniel Morris, trading as Zebley & Morris\", \"name_abbreviation\": \"Woolman v. Zebley\", \"decision_date\": \"1857\", \"docket_number\": \"\", \"first_page\": \"459\", \"last_page\": \"460\", \"citations\": \"1 Houst. 459\", \"volume\": \"6\", \"reporter\": \"Delaware Reports\", \"court\": \"Delaware Superior Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T22:07:22.298157+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Daniel Woolman and John W. Sullivan, trading as Woolman & Sullivan, v. Jonathan Zebley and Daniel Morris, trading as Zebley & Morris.\", \"head_matter\": \"Daniel Woolman and John W. Sullivan, trading as Woolman & Sullivan, v. Jonathan Zebley and Daniel Morris, trading as Zebley & Morris.\\nLeave to' amend a replication will not be granted after the plaintiff has closed his testimony, and the defendant has proceeded to examine witnesses in support of his plea, to enable the plaintiff to take advantage of such proof, by the amendment asked for.\\nDeclaration in assum/psit. Plea, release. Replication that the release was obtained by fraud and misrepresentation. After the jury had been sworn and the plaintiffs had closed their testimony, and the defendants were proceeding with the examination of their witnesses, and had proved the execution of the release from the plaintiffs to the de fendants, and its subsequent loss, but were unable to state from recollection the terms and conditions of it, the counsel for the plaintiffs asked the leave of the Court to withdraw and amend their replication to the plea of release, so as to traverse the plea generally, without replying per fraudem, &c.\\nPatterson, for the plaintiffs.\\nGordon, for the defendants.\", \"word_count\": \"229\", \"char_count\": \"1409\", \"text\": \"By the Court:\\nThe application to amend the replication at this stage of the trial comes too late, after the plaintiffs have closed their testimony and the defendants have proceeded to offer evidence on the very point which the plaintiffs now propose to take advantage of by an amendment of their replication.\"}"

delaware/1861533.json

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+"{\"id\": \"1861533\", \"name\": \"The Delaware Railroad Company v. Beniah Tharp\", \"name_abbreviation\": \"Delaware Railroad v. Tharp\", \"decision_date\": \"1855\", \"docket_number\": \"\", \"first_page\": \"149\", \"last_page\": \"175\", \"citations\": \"1 Houst. 149\", \"volume\": \"6\", \"reporter\": \"Delaware Reports\", \"court\": \"Delaware Superior Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T22:07:22.298157+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Delaware Railroad Company v. Beniah Tharp.\", \"head_matter\": \"The Delaware Railroad Company v. Beniah Tharp.\\nThe Delaware Railroad Company was chartered in 1836, with authority to construct a railroad throughout the length of the State, hut no company was organized under the charter at that time. In 1849 the Legislature revived and amended the charter, with authority to the company to construct a railroad on a reduced scale, to extend from Dona River, in Kent, to the Nanticoke River, in Sussex County, under which amendment the company was duly organized, and under the charter as thus amended the defendant subscribed for forty shares in the qapital stock of the company, on which a call of three dollars per share was made by the directors of the company, payable on the first day of December, 1852. In 1853 the company applied to the Legislature for the purpose, and the Legislature amended its charter so as to authorize the abandonment Of the terminus of the railroad at Dona River, and that portion o^ it projected from Dover to that point, and to extend and unite it with the New Castle and Erenchtown Railroad in New Castle County, on which ground the defendant refused to pay for the call or instalment demanded of him. Held that this change in the direction, location and construction of the road, authorized by the Legislature, and adopted by the company Subsequent to the subscription to its stock by the defendant, did not absolve him from his subscription for the stock, but that - he was .still bound to pay for it.\\nThe grsjit of an act of incorporation by the State is professedly for the public good generally, and there is an inherent right in the Legislature to amend, alter and change it with the assent of the corporation, and those who become corporators in it do so with that contingency, and their engagements are therefore subject to it.\\nIf a subscriber to stock enters generally into a corporation, without specific stipulations, he is bound and concluded by the action of a majority of the corporation, and if the Legislature amends and changes the charter with the assent of the company, he will not be thereby discharged from his liability for his subscription for stock made previous to the amendment and change of the charter. But if the subscription for stock is of such a character, and the change in the object of the charter is of such a nature as to increase the amount which he was .originally bound to pay by virtue of his subscription to the stock, it will absolve him from his contract and liability to pay for it.\\nThere is no substantial distinction between the terms subscriber ahd stockholder in the Delaware Bailrpad charter, and a subscriber may be sued for arrears of subscription for stock due from him, without proof that certificates of stock have been issued or tendered to him by the company. '\\nTried before Milligan and Wootten, Justices. Harrington, Ch. J.,-did not sit in the case, as he was at the time the president and a stockholder of the company.\\nThis was an action of assumpsit, brought by the Delaware Railroad Company against Beniah Tharp, to recover an instalment of three dollars per share on forty shares subscribed for by him in the capital stock of the company, with interest thereon at two per cent, per month after the expiration of thirty days from the time the instalment be- . came payable. Plea, non assumpsit, with leave of counsel on the other side to give the special matters of defence in evidence under the general issue.\\nThe original charter of the Delaware Railroad Company was enacted by the Legislature in 1836, and authorized the location and construction of a railroad from any point on or near the Wilmington and Susquehanna Railroad, or the Hew Castle and Frenchtown Railroad, to the southern line of the State, in a direction towards Cape Charles, or the southern part of the peninsula, with lateral projections to any other points or places within the limits of the State. In 1849 the charter was re-enacted, and amended so as to authorize the location and construction of a rail road from Dona River, in Kent County, to the Nanticoke River at or near Seaford, in Sussex County, under which the company was organized, and the defendant subscribed for the forty shares of capital stock before mentioned, and was elected one of the board of directors of the company. In August, 1852, the directors, the defendant then being a member of the board, made their first call upon the subscribers to the stock of the company, under which the instalment in question became payable on the first day of December following. At the first annual meeting of the stockholders, in January succeeding, the right of the defendant to vote in the meeting was objected to because of the nonpayment of the instalment due from him, and his vote was rejected, after which he attended no more, meetings of the company. By an act of the Legislature, passed in 1853, the charter of the company was again amended with the consent of the stockholders, to authorize the company to extend and unite their road with the New Castle and Frenchtown Railroad, on such terms and conditions as should be agreed upon between the two companies; and at the same session an act was also passed to authorize the New Castle and Frenchtown Railroad Company and the Philadelphia, Wilmington and Baltimore Railroad Company, or either of them, to guarantee the bonds of the Delaware Railroad Company to such an amount and on such conditions as should be agreed upon, to hold stock in the latter company, and to contract and agree for the construction, equipment, maintenance and operation of the Delaware Railroad, on such terms and conditions as should be agreed upon by them, provided such terms and conditions should be approved at a meeting of the stockholders of the latter company, to be called for that purpose, by a majority of the stock of said company there represented. By virtue of these two acts of the Legislature, the Delaware Railroad Company, with the consent of a majority of its stockholders, abandoned Dona River as a terminus of their railroad, and renounced the construction of it between Dover and that point, as designed and contemplated at the time when the defendant subscribed for the forty shares in the capital stock of the company, and had agreed with the Philadelphia, \\\"Wilmington and Baltimore \\u00a1Railroad Company for the extension and construction of it to unite with the \\u00a1New Castle and Frenchtown Railroad.\\nOn the part of the defendant it was admitted by his counsel that he had subscribed for forty shares of stock in the Delaware Railroad Company prior to the month of May, 1852, and, after proving the organization of the company by the subscription of the aggregate amount of stock required by the charter, and the election of the necessary officers and the publication of the call, including the instalment in question demanded of the defendant, it was admitted by the counsel for the plaintiff that all the acts of the Legislature relative to the company, passed since 1849, had been accepted by it, and .now constituted portions of its charter; and that, since the defendant had subscribed for his stock in the company, the company had ceased working on that part of the road which extended from Dover to Dona River, and were then constructing ,a railroad from the \\u00a1New Oastle and Frenchtown Railroad to connect with the Delaware Railroad at Dover, which would be much longer, and would consequently cost much more than the road projected from the latter place to Dona River. That the company had leased the whole road to the Philadelphia, Wilmington and Baltimore Railroad Company, under an agreement of the two companies, with the consent of a majority of the stockholders of the former company, and with the aid of the latter company, it was then engaged in constructing the Delaware Railroad from the New Castle and Frenchtown Railroad, instead of Dona River, to the Nanticoke River, at or near Seaford. The counsel for the plaintiff then rested their case.\\nC. S. Layton, for defendant,\\nmoved for a nonsuit, on the ground that sufficient evidence had not been adduced to prove that the defendant was a stockholder in the company, because there was no proof that any certificate of stock was ever delivered or tendered to him for a share of stock subscribed for by him. But this the president and directors of the company were required to do by the seventh section of the charter of the company, which provided that the president and directors first chosen should procure certificates of stock for all the shares of said company, and should deliver one certificate, signed by the president, and countersigned by the treasurer, and sealed with the seal of the company, to each person, for every share by him subscribed and held, which was made transferable at his pleasure in the mode prescribed, subject, however, to all payments due or to become due thereon. It was manifest, from the peculiar phraseology of this provision of the charter, that the Legislature designed that the certificates of stock should be issued immediately to each subscriber for every share of stock subscribed by him, in order to constitute him and his assignee a stockholder in the company, and to entitle him or his assignee to vote as such, and to exercise all the rights and privileges of a stockholder in it, subject, nevertheless, to all the calls or instalments then due, or thereafter to become due, on every share of stock subscribed or transferred by him. If such was the correct construction of the seventh section of the charter, then it was clearly incumbent on the company to tender the certificates of stock due to the defendant, and to show that they were ready and willing to do all that was required of them by the charter in regard to the defendant, before they could maintain this action against him.\\nJames A. Bayard, for the plaintiff:\\nIn reply to the objection raised, he had first to say that, by the second section of the charter, it was provided that, as soon as twenty thousand shares were subscribed, the stockholders should be incorporated by the name of the \\u201c Delaware Railroad Company,\\u201d and by that name should have power to sue and to exercise the usual rights and franchises of a corporation. It was then, therefore, that every subscriber for stock \\\"became a corporator or stockholder in the company. It was the subscription for stock, not the issuing of certificates of stock, that then constituted the defendant and every other subscriber a stockholder in the company, and to vote and act as such; otherwise there could have been no organization of this company by the election of the required officers, which had to precede the collection of any money on the subscription for stock, as none was required to he paid in at the time of subscribing, or before organizing the company. It was, however, in every ease, the subscription, and not the issuing of certificates of stock, that constituted a subscriber a stockholder in an incorporated company. Ang. and Ames on Corp., secs. 113, 411. The subscription is evidence that he is a stockholder, and enables him to transfer his stock by assignment in the mode prescribed by the charter or by-laws of the company, and that assignment would constitute the assignee a stockholder, although he was not an original subscriber; hut au original subscriber was made a corporator or stockholder by the act itself, and was so with or without a certificate. The remedies between him and the company were mutual and correlative, for he could compel the company to issue the certificate to him, and the company could sue and compel him to pay his subscription. Chester Glass Company v. Demey, 16 Mass. Rep. 100.\\nW. Saulsbury, for the defendant:\\nThe court would find, on examination, that the charter spoke of two classes of persons in this connection. One class was termed subscribers, the other stockholders. The defendant was not sued as a stockholder, and was nowhere denominated a stockholder in any part of the pleadings, but always a subscriber to the stock of the company. There was no provision, however, in the charter for suing a subscriber as such, hut it authorizes the company to sue a stockholder for such a cause of action; and this provision followed the other provision in the charter, which required certificates of stock to he issued to the subscribers as the evidence that they were stockholders in the company. Such was the construction which all the provisions of the charter when taken and considered together required in his opinion. The act seemed to distinguish between a subscriber and a stockholder, and to require that certificates of stock should at once be issued to constitute the latter character, and gave this remedy only against stockholders as such; but the suit was against the defendant as a subscriber merely, without alleging any reason for withholding the certificates due to him under the seventh section of the charter, and therefore the plaintiff was not entitled to maintain the action. .\\nBy the Court:\\nWe think there is no substantial distinction in the charter between the meaning of the terms subscriber and stockholder as indifferently employed in it, and that a subscriber may be sued even under this charter for arrears due from him on his subscription without proof that certificates of stock had been issued or tendered to him. We do not consider that there is anything in the charter to require or warrant the refined distinction contended for by the counsel for the defendant. We, therefore, refuse the motion for a nonsuit.\\nN. B. Smithers, for the plaintiff:\\nIn the year 1836, the Legislature, believing that such an improvement would be a great public benefit, incorporated the Delaware Railroad Company, to construct a railroad throughout the length of the State. But little more was done under it, however, than to make the preliminary surveys and an estimate of the cost of its construction, until the year 1849, when a supplement was passed to that act, reviving, but reducing the extent of the projected enterprise, by altering the termini of the road from Dona River, in Kent County, to the Nanticoke River, at or near Seaford, in Sussex County, and authorizing subscriptions to the capital stock of the company as thus modified. The commissioners for opening books met, as prescribed in the act, and the defendant subscribed for forty shares in the capital stock of the company ; and at the first meeting of the subscribers or stockholders he was elected one of the directors in the company. A call for an instalment of three dollars on each share of stock subscribed for was made by the board of directors, on the 22d of August, 1852, payable on the first day of December following, which meeting of the board he attended, and pif which call he received due and formal notice. Afterwards, at the ensuing session of the Legislature, which commenced in January, 1853, the directors, with the sanction and consent of a majority of the stock-, holders, applied for a farther amendment and modification of the charter of the company, to authorize the abandonment of the terminus of the road at Dona River, and to project and extend it further up the State, so as to connect and unite it with the Rew Castle and Frenchtown Railroad in Rew Castle County, which amendment and authority was granted by the Legislature, and was adopted by a majority of the stockholders at a meeting afterwards convened for that purpose; and the company has since accordingly abandoned the Dona terminus, and the construction of that part of the road which lies between that point and Dover, and is now engaged in constructing it from the Rew Castle and Frenchtown Railroad to Seaford, on the Ranticoke River. The defendant has since refused to pay the call for the instalment of three dollars a share on the stock subscribed for by him, and insists that by reason of this change in the location and construction of the road, since he subscribed for the stock, he is discharged from the duty and legal liability which he then contracted to pay it.\\nTo determine the question thus presented it was necessary in the first place to consider the status of a corpora-tor, and what constitutes a cbrpovator. Row, what was a corporation ? For a legal definition of the term he, should refer to' a well-known \\u2018authority, Ang. and Ames on Corp. 1. And how did such a body politic or corporate act ? It acted by a majority of the corporators, and when the majority determined, the minority was absolutely lost and absorbed in the majority, and there was then in legal contemplation no minority. Ang. and Ames on Corp., sec. 499; Grindley v. Barker, 1 Bos. and Pul. 235. The act of the majority concludes the minority, and becomes the act of the minority and of the whole body. For the right of a corporation to apply to the Legislature for an amendment of its charter, to authorize alterations and variations in its undertakings, he would refer to a single case, which fully sustained it in its broadest and most comprehensive scope. Ware v. The Grand, Junction Water Company, 2 Russ. and Milnes Ch. Rep. 470. The defendant individually, or simply as Beniah Tharp, had no contract touching this matter with the State, but the contract was between the State and the company, and the contract on which he was sued was not between him and the State, but between him and the company, and there was no contract, either express or implied, between, him and the latter that it should not, if a majority of the stockholders should deem it advisable, apply to the Legislature for an amendment and modification of its charter, to secure in a better and more effectual way the objects of the incorporation. The relation which he bore to the State in the matter was only as a member of the company, and as a member his existence was\\\" merged in the corporation, and he was bound by the act of the majority, Gray v. The Monongahela Navigation Company, 2 Watts and Serg. 156. Whenever a person entered into a corporation as a member of it he did so subject to the right of the State to vary or alter the undertaking with the consent of the corporation, unless it was expressly stipulated at the time that it should not be done, even though the alteration might plunge the company in greater expense than was originally contemplated; because the subscriber is not bound to contribute any more than he subscribed to the original enterprise, and the State does not compel the change, but only consents that the company may make it, and if determined upon, it is the act of the company and binds every member of it. Middle and Great Western Railway Company v. Gor don, 16 Mees, and Wels. 804. He was aware that one case might and probably would be cited against him on this point, the case of The Hartford and New Haven Railroad Company v. Crosswell, 5 Hill, 383. But that case was not sound, and had been since overruled and repudiated, even in Hew York, by the case of White v. The Syracuse and Utica Railroad Company, 14 Barb. 559. In the latter case the Court recognized the principle, that the charter was a contract between the State and the corporation, and that there was no contract involved or implied in it between the State and an individual corporator, and that the company had the power for such a purpose to bind the corporator by its act and consent. The principle was now too well established to be shaken, that the act of incorporation was a contract between its members and the sovereign who granted it, formed by the consent of both parties, and so far as the rights, duties and obligations of an individual corporator, as a corporator, were concerned, he was bound by the acts of a majority of the corporation. The Troy and Rutland Railroad Company v. Kerr, 17 Barb. 582; Revere v. The Boston Copper Company, 15 Pick. 351.\\nW. Saulsbury, for defendant:\\nHe would not dwell long on the facts of the case. His object would simply be to present, for the consideration of the Court, the principles of law on which he relied for a verdict in favor of the defendant in the action. The evidence disclosed this state of facts: The Delaware Railroad Company was chartered in 1836, and was modified in 1849, by which modification the- road was located from Dona River to the Hanticoke, at or near Seaford; and that was the road which he subscribed to the stock of the company, and contracted to pay his money to construct, and not the road which the company was then making from the Hew Castle and French-town Railroad to Seaford, on the Hanticoke. At the time when he subscribed, the company had no design and no authority to locate or construct any such rqad as the latter, or any road beyond the limits of Kent and Sussex Coun ties. The purpose and powers of the company, as well as the termini prescribed and fixed by the charter, restricted and confined the location and construction of the road at that time to the points and within the limits just stated, and the contract of the defendant was to contribute, by the purchase of stock, the amount subscribed by him, to the construction of such a road, and no other. He did not pretend that the defendant personally, or as an individual corporator, had any contract with the State in regard to the matter; but that was his contract with the company, and the only contract entered into by him in relation to the subject. He would not go so far as to contend that any and every variation or change in the location of a railroad from the route originally contemplated or projected, would discharge a subscriber to the stock of a company from his legal obligation to pay for it; but when the alteration adopted by the company involved the total abandonment of the beginning point for the road, and such a radical change in the length and general direction of it as to amount to another and an entirely different road from the one originally projected and commenced by the company, it would absolve him from the obligation, if he saw fit to take advantage of the breach, or rather of the non-performance of the contract by the company. 13 Illinois Rep. 504; 8 Mass. 267. In the case last cited, which was the case of an incorporated turnpike company, which sued a subscriber for an assessment which he refused to pay, because of a change in the location of the road authorized by an act of the Legislature, subsequent to his subscription, the Court remarked that the plaintiff sued on an express - contract of the defendant, and they were bound to prove it as they alleged it, and rested its decision in favor of the defendant, on the ground of the, change in location and .direction of the road. In the case before the Court the declaration was on the contract of the defendant to take and pay for the stock subscribed for by him, as the same should be required and called for, to construct the road from Dona to the Nanticoke River; for that was the only contract entered into by him, and the only one that could have been declared upon against him. It was also an express contract; and, on the authority of the case in Massachusetts, it was incumbent upon the plaintiff to prove it as it was alleged, or he could not recover upon it. In a case like the present, the liability of the subscriber was restricted to the road, as the same was chartered and contemplated at the time he subscribed. 10 Mass. 384; 1 New Hamp. Rep. 44. For the contract between the company and the subscriber in such a case was, that the former would make- the work then chartered, designed, and contemplated, and that the latter would pay for the shares subscribed for that purpose, and the contract could not after-wards be varied without the consent of both parties. In the case of The Hartford and New Haven Railroad Company v. Crosswell, 5 Hill, 383, which the counsel on the other side had said had been overruled (but which he should show had not been overruled), it was held that the charter was the fundamental law of the association or corporation, and to which the corporator subscribed, and it was not competent for the Legislature and the company by consent to introduce new and radical changes in the objects originally contemplated, so as to bind the corporator without his consent; and a contrary doctrine was stated by the Court to be monstrous. It was not true that that case had been overruled by the cases cited on the other side from 14 Barb. 559, and 17 Barb. 607. On the contrary, the Court would find, on examination, that they recognize and sustain the principle ruled in that case. In the case cited from 2 Watts and Serg. 156, the change or variation authorized, was but incidental to the original object contemplated in the charter, and involved no departure from the main object, but was in \\u00bfact subsidiary to it. The object was to improve the navigation of a stream, and the additional power was to authorize the erection of a dam in it, without which the improvement could not be accomplished. It was therefore nothing more than the addition of a necessary power to carry out and complete the original enter prise. The same remark would apply to the case cited on - the other side from 2 Russ. and Milne, 470; for the amendment of the charter in that case also involved no essential change in the original object of the incorporation, but might be fairly considered as merely incidental to it, in which respect both differed widely from the case before the Court.\\nC. S. Layton, on the same side:\\nA corporation was, to a certain extent, a partnership, with this difference, that while private partners were individually liable for the debts of the firm, corporations were created for specific objects, with limited liability as to the corporators.\\nThe chartered road to which the defendant subscribed was the road from Dona to Hanticoke River, and he contracted with the company for no other purpose, and situated as he was, in the forest of Mispilli\\u00f3n Hundred, remote from market and from navigation, it was not only important to him but an actual inducement with him, to have a railroad constructed on the line projected in the act of 1849, with its terminus at Dona River, as a convenient point of shipment of produce, for either Philadelphia or by the Delaware Bay and \\u2019coastwise for Hew York and Boston; and he accordingly subscribed to the stock of the company to make that road. But, by the articles of agreement with the Hew Castle and Frenchtown Railroad Company, the Delaware Railroad Company had engaged to abandon and had abandoned Dona River as a terminus, and was now employed, by means of the changes since introduced in their charter, in constructing their railroad from Seaford, on the Hanticoke, to connect with the Hew Castle and Frenchtown Railroad, which has its eastern terminus at Hew Castle, on the Delaware River. This, it was manifest, was never contemplated by the defendant, for he did not imagine that such a railroad as this was to be constructed by the company when he subscribed for his forty shares of the capital stock in it, and it was equally clear that he never contracted with the company to contribute his sub- scrip ti on for the construction of such a railroad as that which the company was now making.\\nHe would here remark that on the main point of the ease there was no conflict of decisions.\\nHe would, however, in the first place, ask this Court to charge the jury that the defendant was not a stockholder in the company until a certificate for each share of stock subscribed by him was delivered to him; that the certificate of stock was essential to constitute him a stockholder, and that it was necessary that the company should either have delivered or tendered to him the certificates of stock, before they could maintain this action against him.\\nSecondly, that the change in the terminus of the railroad, from Dona River to the junction of the Hew Castle and Frenchtown Railroad, discharged, cancelled and annulled the contract between the defendant and the company to pay for the forty shares of stock subscribed for by him under the charter of 1849.\\nHe did not maintain, however, that a change in the location of the road retaining the termini as originally designed, or that any change of charter by amendment, conferring additional powers upon the company merely to carry out in a more complete and ample manner the original objects of the enterprise would have that effect; but when the deviation or change authorized was in the termini of the road, it was a radical change, and would discharge the subscriber from his contract with the company, unless he had afterwards assented to the change, and the proof of that assent was produced before the Court and jury. The carrying a railroad through a portion of a line marked out by its charter, is a nominal, not a real compliance with its chart\\u00e9r. Wordsworth on Joint Stock Companies, 39 Law Libr. 68. In private articles of association, the articles of association were the fundamental law of the body, and it could not change its articles in their material objects so as to bind its subscribers without their consent; and the same was the law in regard to corporations, particularly if the change should be prejudicial to the interests of the stockholders. Ang. and Ames on Corp. 483. The change or alteration authorized hy the Legislature may he so great an radical in the charter as to absolve the corporator from his contract with the company. Ang. and Ames on Corp. 485; The American Bank v. Baker et al., 4 Metcalf R. 164. On the* authority of that case he should contend, that as there was no proof before the jury that the defendant was present at the meeting which resolved to apply to the Legislature for the change of the charter, or at the meeting which resolved to change the route of the road from Dona River, and as there was no evidence that he subsequently assented to them, that the company could not sustain this action against him. 2 Conn. R. 579; Day\\u2019s Dig. 108; 4 Henn. and Mumf. 315; 5 Hill, 8 Mass. R., and 13 Illinois R., cited by his colleague. On the strength of these eases, which had never been overruled, he would venture to assert that even if it were proved that the defendant was present at these meetings, and assented to all these changes, the plaintiffs still could not recover in this action. The case in 17 Barb. R., tlie strongest against him cited on the other side, recognized and confirmed the decision in 5 Hill, on which they relied. In the case in 17 Barb. R., it was held that the change in the charter was but incidental to the original object of the incorporation, and was consequently an alteration to which the stockholder may be held to have impliedly assented, and therefore he was considered not to be discharged from his contract with the company.\\nMr. Bayard, for the plaintiff,\\ncited Mercer County v. Coovert, 6 Watts and Serg. 70, arid gave the counsel on the other side an opportunity of replying to it if they desired to do so.\\nMr. Layton:\\nA county was a quasi corporation, and as such was as much hound to observe its contracts as a corporation, and he thought, on a critical examination of the report of that case, it would be found to support the position for which he had contended,\\u2014the inviolability of the contract; as it was held in the case cited that the change in the location .of the bridge, after the guarantee given by the defendants, absolved the defendants from any liability on the guarantee.\\nJames A. Bayard, for the plaintiff:\\nIt was proved that the defendant subscribed for forty shares; also, the organization of the company, the call for the instalment of three dollars on each share, and the notice of it to the defendant were proved. The counsel for the defendant who last addressed the jury remarked, that the chief inducement which the defendant had for subscribing to the railroad terminating at Dona River might have been, the outlet which it would afford him, and others residing like him in the interior of the State and remote from navigation, for the shipment of produce and lumber from that river with greater facility and convenience, either by the bay to Philadelphia or coastwise to Dew York or Boston, or other seaports, at their pleasure. But this was a consideration, whatever might have been its influence with the defendant, which could have no weight or importance in the determination of this action, for it was a well-established as well as a wise principle of law, that private considerations, and-expectations of individual benefit and profit, cannot he allowed to have entered at all into the reasons which induced him to subscribe to the proposed enterprise, and that his contract to take and pay for the stock was to he construed and enforced in a court of law, without any regard whatever to such private considerations and expecta- ' tians. On the contrary, before such & forum as this, every Stockholder was to he presumed to have subscribed for his stock from considerations of the public good, from motives of public spirit, and from the expectation of profit which he might hope to derive possibly from the investment of money in the stock, as in the purchase of any other species of property, and without any regard to the incidental advantages and facilities which the work might afford him when made.\\nThe facts relied on by the other side were that, after the subscription of the defendant to the stock of the company, the latter applied to the Legislature to authorize a' change of the terminus of the road from Dona River; that the authority was given, accepted by the company, and that the terminus of the railroad at Dona River has since been changed and abandoned, and by this they contend that the defendant has been absolved from his liability on the contract to pay his subscription. To that he replied, that the application to the Legislature to authorize the change, and the change authorized, and afterwards adopted, were all duly sanctioned and approved by a vote of a majority of the stockholders, in meetings convened according to the rules and regulations of the company for that purpose, and that therefore the defendant had not been discharged thereby from his subscription, but was bound to pay it.\\nThis case, and the cases cited and relied upon on the other side, had all arisen from one case, the ease in 5 Hill Rep., and that had all been the result of the misconception of Judge Nelson, by whom it was decided, of the cases which had been ruled in Massachusetts.\\nHe should ask the Court to charge the jury that the change in the terminus of the road, the 'contract with the New Castle and Frenehtown Railroad Company, and the contract with the Philadelphia, Wilmington and Baltimore Railroad Company, and the Wilmington and New Castle Railroad Company, have not discharged the defendant from the contract. Because the defendant had not assented to the act of 1853, it was contended that he had been disr charged from his contract. But was not this a singular effect to claim for such an act ? For, if the company had violated its supposed contract with the defendant to make the road to Dona River, it would not discharge the defendant from Ms contract, but he would have a right to go into chancery for an injunction to restrain the company from abandoning that terminus, and to compel it to make the road to that point; while they, on their part, might oblige him to pay his subscription and comply with his contract with them.\\nA corporation was not a partnership. A partner could receive and discharge the debts of the firm, and he could supervise the business of it, and was personally liable for all the legitimate engagements of the firm. A corporator had no such powers, and was subject to no such liability. A partner had a joint but undivided interest and property in everything owned by the firm; but a corporator had no such joint and undivided interest in the property of the corporation, for his only property was in his shares of the capital stock of the company. The corporator, therefore,' had not the interest in the property of the corporation which the partner had in the property of the partnership. In the first case, the property is all vested in the artificial being created by the Legislature, the company; in the other case, the property was all vested in the individual members of the firm. If a corporation owned real estate, that did not make the corporator a land-owner, and he could not vote upon it; he had no estate in the land, that was all vested in the artificial being, the company, and .the corporator had no property in anything but in his shares of stock. Such was not the case of a partner, however; he was a land-owner, and h'ad a joint-estate in the real property of the firm. Corporations were bodies politic and little republics, and a majority of the corporators governed. The right of the corporator is in his share and to vote, and he was bound by the votes of a majority, whether it was under the charter or in an application of the company to the sovereign for a change of the charter. 1 Kidd on Corp. 13; Ang. and Ames on Corp. 1; 1 Bos. and Pul. 235; 15 Pickering, 351. What was the contract of the corporator with the corporation, and what was the contract of the defendant with the corporation in this case ? (Beads the subscription clause in the charter, sec. 1), and asked if this was not an absolute contract to take the shares of stock subscribed, without any condition or stipulation whatever, whether as to any future application to the Legislature for an amend ment of the charter, or that the railroad should be made as then projected in the charter? It was an absolute and 'unconditional contract to take forty shares in the stock of the company, and in consideration of those shares to pay for it. But the idea had somehow or other sprung up that there was involved in this transaction an implied promise by the company to the subscriber that the work should be constructed as contemplated and projected at the time of the subscription. There was no such contract, either express or implied, between the corporation and the corporator. The only contract in such a case was that which he had already stated. By the purchase of the shares the stockholder acquired a property in them, with the rights of property incident to it, and a right to vote upon them; and the very existence of the corporation required that he should be governed by the vote of the majority. The stock which he held, or for which he had subscribed, had no such incident as the implied contract to which he had alluded. His obligation was to pay for the shares; the obligation of the corporation was to convey to him the shares of stock subscribed for, with all the rights of property incident to it, according to the charter. If this was not so, how would you get along in the case of an assignment of the stock, with an assignee refusing to pay the arrears of subscription due on the stock assigned him subsequent to a change authorized in the road? Could he plead such an implied contract ? But there was no soundness in this distinction, and there could be none in such a distinction as were found in some of the books, and recognized and admitted in others cited on the other side, if it be a contract between the corporation and the corporator at the time he subscribes, that the work shall be made as authorized and designed at that time, between large and small changes, or between what are called radical and less important changes in the line or mode of constructing the projected improvement; because, if there was any legal foundation for such an idea as that, it must be on the ground that such a change would impair the obligation of the contract, by attempting to vary or change it without the consent of the corporator. blow, it was manifest, if this was so, it was utterly immaterial whether the change was great or small. The Constitution of the United States made no distinction between such cases, between altering the contract or the impairing of the obligation of it, in a greater or smaller degree, and authorized the Legislature to make no such discrimination. On the contrary, it was evident that, if the exemption of a corporator from his liability to pay for his stock, was based on the idea of a contract between him and the corporation, which could not be changed without his consent, any change whatever from the work as'then chartered and \\u00a1Drojected would discharge him. It was contrary to the practice of the Legislature, and the settled views and received opinions of the profession in this State, in regard to the many and constant changes made by the Legislature in the rechartering of banks, and the modifications made in the charter of almost every corporation existing amongst us. What would he the effect if such a principle had ever been understood to prevail in this State, and that any one dissenting stockholder could have forbidden the renewal of the charter, and compelled the company to wind up, as he could have done if such was the law on the subject?\\nThe idea on the other side drawn from the similitude of a partnership was, that the contract between the corporation and the subscriber was extended by implication, to prevent any radical change in the purposes of the incorporation. This he denied, and had shown that the contract was that he was to pay the amount subscribed for his shares of stock, and the company was to grant him the stock, with all the rights of property incident to it, .which incidents would depend on the nature of the regulations prescribed by the charter on the subject. This was. the contract, and this was the only contract which the corporation, with the sanction of this Legislature, could not change without the consent of the subscriber. All other rights and interests which he had in the corporation were subject to the decision of a majority of-the corporators\\u2014 the great and fundamental law of all corporations. 15 Pickering, 153. The decision in that case was, that the votes and acts of a majority of the corporators, while they may rule the interests of a corporator as a corporator, they could not affect his contracts with the corporation not as a corporator; and this he adinitted. The right of the company to apply to the Legislature for authority to enlarge and change their works, or totally to change their charter, as incident to such a corporation, notwithstanding the objection of a corporator, was clearly and expressly recognized and ruled in the case cited by his' colleague, from 2 Russ. & Milne, 470. It was a necessary incident of a corporation that it should have the right, with the approbation of a majority of the shareholders, to apply to the Legislature for a change of its charter; and every one who came into it was bound by the votes of a majority, unless he had stipulated against it at the time of subscribing; for there was no implied engagement\\\" or contract of the corporation to the contrary. The Pennsylvania cases were with us. The corporation could not do anything to deprive the corporator of his share, or to make him pay more money on or for his share than he originally agreed to pay for it, without his consent, with or without the sanction of the Legislature; because that would be to affect and prejudice him, not as a corporator, but as an individual, outside of the corporation, and would be a violation of his contract. 2 Watts & Serg. 161; 6 Watts & Serg. 71, 72.\\nIn the case cited from 8 Mass. 262, the change authorized by the Legislature increased the amount which the subscriber engaged to pay at the time of subscribing. It had been previously decided in that' State that, where the charter had given only the right of forfeiture for the nonpayment of instalments due upon the shares, an action- at law might be maintained by the company for the amount of the share against the subscriber on his cpntract to pay for the share, as a collateral contract; and that, notwithstanding the charter, gave no action a!t law for it, and the only remedy provided by the statute was by forfeiture; but the Court also decided that the action in that case being on the express contract by the subscriber to take and pay for the shares of stock subscribed, as a collateral promise made by him not as a corporator, but as an individual, it must be declared on as it was actually made, and, it could not be changed by the corporation and the Legislature without his consent. 10 Mass. R. 384. He referred to the case in 5 Hill, 383, and denied that the decision in that case was law, and that it was shaken by the case in 14 Barb. 559, and was in effect overruled by the case in 17 Barb. 607. The Illinois case holds the change to be binding if it was designed to carry out the original undertaking. And if it were necessary to reconcile the present with the ruling in that case, it might be done by showing the first incorporation in 1836 and its objects; its change and reduction of capital in 1849; and its subsequent change to the present, which was more in accordance with the original object of the charter than the amendment of 1849. But, after what he had said on the subject of greater and smaller variations in this respect, he hardly deemed it necessary to notice that case any further, or to say anything more .in regard to it.\", \"word_count\": \"9756\", \"char_count\": \"55709\", \"text\": \"The Court,\\nWootten, J.,\\ncharged the jury: This case, which has been protracted to considerable length by a thorough investigation of the facts, and an elaborate argument of the law on both sides, has now been brought to that stage of it when it becomes necessary for the Court to announce to you their opinion of the law, as applicable to it, and which must mainly govern the decision of it, as there appears to be but little controversy in regard to 'the facts which pertain to it.\\nIt is, as you are already aware, an action i commonly called an action of assumpsit, brought by the Delaware Bailroad Company against Beniah Tharp to recover from him $120, the amount of a call made on him of three dollars per share on his subscription of forty shares of the capital stock of the company, with interest at the rate of two per cent, per month from thirty days after such call, which was on th\\u00e9 1st of December, 1852.\\nTo entitle the plaintiffs to recover it is necessary that they should prove first, the legal existence, of the company as a corporation; and this is done by showing that the Legislature passed the charter, and by showing that the company has been organized according to the terms and stipulations of the charter.\\nSecondly; that Beniah Tharp, the defendant, subscribed to the capital stock of this company to the amount of forty shares, at $25 per share.\\nThirdly, that 5000 shares of stock were subscribed; that the call was made for the amount claimed and notice thereof given as authorized and required by the charter, that is, by publication in two newspapers published in the city of Wilmington, at least thirty days previous to the first day of December, 1852, the time appointed for the payment of that portion or instalment of the stock called for, and that the defendant neglected to pay the same at the time and place appointed for that purpose.\\nIf these facts are all proved to your satisfaction the plaintiffs are entitled to your verdict for the amount claimed by them, unless the defendant has set up and established sdme legal defence which absolves him from his liability.\\nThe defence set up and relied upon by the defendant is, that since the subscription by him to this stock, and since the organization of the company as originally chartered, a change has been made in the charter and in the line and eastern terminus of the road without Ms assent, which, he alleges, releases and absolves him from his liability to pay the amount subscribed by him. That a change has been made by the Legislature, on the application of the company, and has been approved and adopted by the stockholders is true; but whether that change is of such a character as discharges the defendant from his liability to pay the amount of his subscription to the stock is the question upon which this case turns, and which we are now called upon to answer, by the announcement of our opinion to you of the law upon that subject.\\nWe must confess that we have been considerably embarrassed by the contrariety of opinions and seeming conflict of decisions cited, and we are not now entirely free from doubts; but we have given the subject all the attention and the \\\"fullest consideration which our limited time and opportunity would allow, and will announce the conclusion to which it has conducted us.\\nUpon examining the authorities cited on behalf of the defendant, in support of his position, most of them strike us as having and bearing but little analogy to the case now under consideration.\\nThe case of The Hartford and New Haven Railroad Company v. Crosswell, 5 Hill, does go to the extent that such extensive and radical changes may be made in the road, or work of improvement, as will operate as a dissolution of the contract of a subscriber to stock; but it also recognizes the principle that such alterations may be made, in the language of the learned judge who delivered the opinion of the Court, as are clearly enough beneficial, or at least not prejudicial to the interest of the party.\\nSo, too, in the case cited from 13 Illinois R., it is conceded that such changes or amendments may be made to the charter as may be considered by the Legislature useful to the public, and by the company beneficial to them, if they do not divert its property to new and different purposes, and where the work is still designed to accommodate the same line of travel and transportation, and to promote the same general good, without absolving the subseribers from their engagements.\\nThe case in 1 New Hampshire Reports, and those in 8 and 10 Massachusetts Reports, are also relied upon; but those cases are essentially different from the .one we are now considering; and although it is somewhat difficult to determine what they really do decide, they were doubtless cases where the liability'of the subscribers was increased. The case in Hew Hampshire was-a subscription for one share of stock, and the contract was to pay all assessments a majority of the company might think necessary to raise for improving the navigation of a river within certain limits, and for the purchase of six acres of land for the prosecution of the improvement. The assessment on that share was for the purchase of one hundred acres of land, whereby the liability of the subscriber was increased.\\nAnd so in the cases cited from 8 and 10 Massachusetts Reports, the undertaking was in the one case to pay assessments on one share-of stock, to make a turnpike, the cost of which was estimated at $40,000, and that there should be 400 shares, being $100 per share. Two assessments were made, to the amount of $240. A change was made in the charter by the Legislature, on the application of the company, and the direction of the road was altered. The defendant supposed, and very naturally thought, he could not in any possible event be held liable for assessments amounting to more than $100 on each share, for that was the stipulated contract between him and the company when he subscribed, and he was therefore absolved from his liability by such a change as necessarily increased his liability from $200 to $240.\\nThe facts and rulings are the same, or very similar, in the case in 10 Massachusetts.\\nOn the part of the plaintiffs several authorities have been cited in support qf the principle contended for by them; that is to say, that a change made in the charter by the Legislature, without impairing the contract between the subscribers and the company, does not release subscribers to the stock.\\nThe first of these is the case cited from 2 Russell & Mill., Ware v. The Grand Junction Water-works Company. Ware, the defendant, objected first to the expenditure of the money of the corporation for the procurement of an amendment to the charter; and also to the application to Parliament for such amendment.\\nLord Brougham held that one of the incidents of a corporation is to apply to Parliament for an amendment of its charter. And the members of the corporation entered into it with that contingency; and if they intended to enter into it with any reservation, they ought so to have stipulated.\\nThe next of these cases is that cited from 2 Watts & Sergeant. In that case the Court held that the extension or enlargement of the powers or privileges of a corporation, though it may increase the expenses or moneys, does not change the contract of the corporator. His contract was simply to pay to the company his subscription; and to become, in consideration thereof, a holder of stock to that amount; that, as a corporator, he entered into the contract subject to the right of the company to apply to the Legislature to change the charter for the public good, which is the object of all corporations.\\nThe plaintiffs also cited the case of The Middle and Great Western Railroad Company v. Gordon, in 16 Meeson & Welsby; The Troy and Rutland Railroad Company v. Kerr, 17 Barbour's Reports; and the case in 6 Watts & Sergeant.\\nThe grant of acts of incorporation by the State is professedly for the public good generally; and there is an inherent right in the Legislature to amend, change, or alter the charter of any incorporated company with its consent. Those who become corporators do so with that contingency, and their engagements are therefore subject to it. If a subscriber to stock enters into the corporation generally without specific stipulations, he is hound and concluded by the action of a majority of the corporation; and if the Legislature change or amend the charter on the application of the company, and with its assent and approval, without thereby impairing the contract of the corporators, in the mode we have stated, they will not be thereby discharged from their liability as subscribers to stock. Such a change as would not increase the liability of the party to pay more money than he subscribed originally to pay, but merely affects his individual or personal interest, as that the road did not pass by his door, or through his farm, as he may have desired or expected, is not such a change as will absolve the party from his obligation to pay his subscription. The object of corporations being for the public good, and not private interest or advantage.\\nN. P. Smithers and J. A. Bayard, for plaintiffs.\\nW. Saulsbury and C. S. Layton, for defendant.\\nThe contract of the defendant with the Delaware Railroad Company was to pay for forty shares of the capital stock of the Company at $25 per share, in consideration of being the holder of that number of shares. That he agreed and promised to pay the same to the president and directors of the company, in such manner and proportions and at such times as shall be determined and' called for by them. By the terms of his contract he is bound. If he intended to subscribe on the condition that the road should not be changed in its eastern terminus or otherwise, he ought so to have stipulated; not having done so, he cannot now shield himself under the defence set up by him, and upon the ground that the road has since been changed from its terminus at Dona River. Having subscribed' under the general terms of the charter, with an inherent right in the Legislature to change it for the public good, with the consent of the corporation, and the company having applied for and accepted the amendment, he, as a corporator, is concluded by the action of the majority of the company, although he may not as an individual corporator have assented to it.\\nVerdict for plaintiffs.\"}"

delaware/1863529.json

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+"{\"id\": \"1863529\", \"name\": \"JAMES JOHNSON vs. AMOS STAYTON\", \"name_abbreviation\": \"Johnson v. Stayton\", \"decision_date\": \"1852\", \"docket_number\": \"\", \"first_page\": \"362\", \"last_page\": \"363\", \"citations\": \"5 Harr. 362\", \"volume\": \"5\", \"reporter\": \"Delaware Reports\", \"court\": \"Delaware Superior Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T21:37:26.435423+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JAMES JOHNSON vs. AMOS STAYTON.\", \"head_matter\": \"JAMES JOHNSON vs. AMOS STAYTON.\\nThe obstructing a public road is not the ground of private action, without special damage.\\nThis was an action of trespass on the case, for obstructing the plaintiff\\u2019s right of way over a public road. Some of the counts laid it as a private road. No special damage was laid. The obstruction was proved in a public highway.\\nMr. Cullen, jr.,\\nmoved a nonsuit; and cited 4 Law Lib., Woolrich on Ways; 3 Blac. Com., 219; 8 Cow. Rep., 146; Clinton's Digest, 1927 ; 7 Cow. Rep , 609; 28 Wend. Rep., 446 ; 1 Esp. Rep., 148; 4 Mau. & Selw., 101; 5 Denio Rep., 213; 2 Bing. Rep., 263; 2 Ib., new series, 281; 9 Com. Law., 407; 29 Ib.)\\nMr. Layton, contra.\\nThe road is laid in two counts as a public road, in others as a private right of way\\u00bb We may go before the jury on either. We are not bound to submit to a nonsuit. (3 U. S. Dig., 68.)\\nLayton, for plaintiff.\\nCullen and Houston, for defendant.\", \"word_count\": \"332\", \"char_count\": \"1795\", \"text\": \"By the Court.\\nBooth, Chief Justice.\\nThe declaration joins, perhaps property, counts for obstructing a public road, with a count for obstructing a private road, and for obstructing a private right of way. The entire proof offered in reference to the character of this road is, that it is a public road. For obstructions to a public road, the remedy is by indictment. If one individual might maintain a private action for the obstruction of a public road, every person might. Such action cannot be maintained, without the allegation and proof of special damage. There is no such allegation or proof in this case, and the plaintiff must be nonsuited.\\nIt is true that the plaintiff may, as he says, refuse to submit to the nonsuit, and go to the jury; but it will be a mere waste of time, as we shall charge the jury according to this ruling.\\nThe plaintiff submitted to a nonsuit.\"}"

delaware/1863562.json

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+"{\"id\": \"1863562\", \"name\": \"JAMES ANDERSON, d. b., p'ff. in error vs. SARAH THOROUGHGOOD, negro, p. b., defendant in error\", \"name_abbreviation\": \"Anderson v. Thoroughgood\", \"decision_date\": \"1849-06\", \"docket_number\": \"\", \"first_page\": \"199\", \"last_page\": \"201\", \"citations\": \"5 Harr. 199\", \"volume\": \"5\", \"reporter\": \"Delaware Reports\", \"court\": \"Delaware Court of Errors and Appeals\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T21:37:26.435423+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JAMES ANDERSON, d. b., p\\u2019ff. in error vs. SARAH THOROUGHGOOD, negro, p. b., defendant in error.\", \"head_matter\": \"JAMES ANDERSON, d. b., p\\u2019ff. in error vs. SARAH THOROUGHGOOD, negro, p. b., defendant in error.\\nOn petitions for freedom, though the proper mode of taking testimony is at bar, if the defendant join in a commission, he waives objection to depositions.\\nUnlawful exportation confers freedom on the slave.\\nThis may he proved, without the conviction of the master for the misdemeanor.\\nAppeal from the Superior Court in and for Sussex county, on a judgment in the case of a petition for freedom, (ante., 95.)\\nHeard at the June term, 1847, before Johns, Chancellor, and Judges Wootten and Milligan.\\nThe Chancellor delivered the opinion in writing, affirming the judgment below.\", \"word_count\": \"764\", \"char_count\": \"4497\", \"text\": \"By the Court:\\u2014\\nJohns, Chancellor:\\nThe appellant has relied on the following causes of appeal, as sufficient to entitle him to a reversal of the judgment of the Superior Court.\\n1. That the testimony was taken under commission, on interrogatories filed, when the witnesses are by the act of assembly required to be produced before the court.\\n2. That the petitioner was not sent out of the State, with the intention that she should be absent permanently, and therefore not exported, contrary to the act of assembly, so as to entitle to freedom.\\n3. That Mcllvaine was an incompetent witness, and his testimony should have been rejected.\\n4. That there must be a conviction of the master for the misdemeanor, before the exportation can give freedom, and until conviction, no other evidence is admissible.\\nThe court having heard the testimony and the parties respectively, by their counsel, are of opinion, that the first cause of appeal relied on is insufficient, as the objection was not taken in the court below, and the assent of the party, by joining in the commission and filing interrogatories, must be considered as a waiver of the right now claimed.\\n2. On the second cause of appeal, the court consider the act of exportation confers freedom, unless the master can bring it within the specific exceptions, or the true intent and spirit thereof, which in this case has not been done.\\n3. The court consider the testimony of Mcllvaine admissible, he being a competent witness; and that the matter relied on as rendering him incompetent, can only be applicable to his credibility.\\n5. The court consider a prior conviction not requisite; because the clauses in the act are distinct and independent; and freedom is not the consequence of conviction, but is by virtue of the act of assembly, and results from the fact of exportation.\\nThe first clause in the act makes the exportation a misdemeanor, for which the master may be convicted, and the consequence thereof to him is the fine. The second clause, or that declaring the effect of exportation, in reference to the condition of the slave exported, makes the freedom of the slave the consequence of exportation, independent of the master's conviction. Therefore, proof of the fact of exportation, contrary to the act, confers freedom.\\nSuppose a conviction had been procured, it could not have availed as proof, since the objection that it was only evidence of the con vie tian and not inter partes, would have caused its rejection. It could not have been admitted as evidence, and the rule that a verdict ought not to effect persons who are no parties, cannot be. disregarded. Besides, it being a well established rule, that a verdict in a criminal case, cannot be given in evidence in a civil proceeding, how can it be possible to put such a strange construction on the law ? The cases put, of convictions which per se are productive of certain legal consequences, are not considered entitled to have any influence in settling the proper construction of our act of assembly. The court, therefore, consider that the freedom of the slave results from the fact of exportation, by virtue of the act of assembly, independent of the master's conviction ; and in no respect can be considered as the consequence of, or dependent on, such conviction.\\nIt is therefore considered and adjudged, that the judgment of the Superior Court be and the same is in all things affirmed, and that the appellant pay the costs of this appeal in three months, or attachment. And it is further ordered by the court, that the record be, and the same is hereby, remanded to the Superior Court in and for Sussex county, to be further proceeded in.\\nJudgment below affirmed.\\nJudge Wootten stated that he declined expressing any opinion in this case; as he had, at one time, been of counsel for the parties.\"}"

delaware/1864850.json

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+"{\"id\": \"1864850\", \"name\": \"JOHN F. MAYBIN, garnishee, def't. b. vs. WILLIAMSON & MILLER, pl'ffs. b.\", \"name_abbreviation\": \"Maybin v. Williamson\", \"decision_date\": \"1846\", \"docket_number\": \"\", \"first_page\": \"434\", \"last_page\": \"435\", \"citations\": \"4 Harr. 434\", \"volume\": \"4\", \"reporter\": \"Delaware Reports\", \"court\": \"Delaware Superior Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T22:55:46.788079+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOHN F. MAYBIN, garnishee, def\\u2019t. b. vs. WILLIAMSON & MILLER, pl\\u2019ffs. b.\", \"head_matter\": \"JOHN F. MAYBIN, garnishee, def\\u2019t. b. vs. WILLIAMSON & MILLER, pl\\u2019ffs. b.\\nThe judgment against a garnishee whose answer admits a specific chattel, must be that he deliver the chattel, and cannot be for the payment of money.\\nCertiorari to Justice Bradley.\\nThe record showed regular proceedings and judgment by attachment against one Bingham ; and that Maybin was summoned as the garnishee of Bingham. He appeared and answered \\u201c that at the time the attachment was served on him, there was in his possession a bay mare of the value of $40, belonging to Elijah W. Bingham, and nothing more. Defendant requested to deliver to constable said mare, who refused to do so.\\u201d Whereupon, judgment having been rendered against the original defendant, the justice gave judgment against the garnishee for $26 78; the amount of the original judgment.\\nThis was the exception; that judgment was erroneously entered for a sum of money, when it should have been for the mare specifically.\", \"word_count\": \"271\", \"char_count\": \"1611\", \"text\": \"The Court\\nreversed the judgment on this ground. No judgment could be regularly given against a garnishee for money, on a declaration by him admitting a specific chattel in his hands, and nothing more. The justice should have ordered him to deliver the chattel to the constable to be inventoried, and would have had the same right to commit him for refusing to obey such an order, as for refusing to answer. Even if the mare were not delivered, no judgment could, be given in this action for the value; but the constable might have appraised her, and maintained an action against the garnishee for her. (Dig. 350.)\\nJanvier, for the garnishee.\"}"

delaware/1864934.json

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+"{\"id\": \"1864934\", \"name\": \"THE STATE vs. ALEXANDER PORTER\", \"name_abbreviation\": \"State v. Porter\", \"decision_date\": \"1845\", \"docket_number\": \"\", \"first_page\": \"556\", \"last_page\": \"557\", \"citations\": \"4 Harr. 556\", \"volume\": \"4\", \"reporter\": \"Delaware Reports\", \"court\": \"Delaware Court of General Sessions\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T22:55:46.788079+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE STATE vs. ALEXANDER PORTER.\", \"head_matter\": \"THE STATE vs. ALEXANDER PORTER.\\nProof of guilty knowledge in an election officer.\\nThe defendant was indicted for refusing a legal vote, the vote of Charles Fawcett, at the general election in 1844, in Wilmington; he being the inspector of the election.\\nThe court charged as in M\\u2019Donald\\u2019s case, ante 555.\\nThe jury, after being out all night, came into court and proposed the following questions, in writing:\\u2014\\nIs it incumbent on the prosecution to adduce positive evidence that the defendant acted from a corrupt motive? or what precisely is the nature of the evidence that the prosecution must bring to prove the corrupt motive?\\nIt also appears that some of the jurors argue, and cannot come to a verdict, from the fact that they see proper to connect with the defendant, the judges\\u2019 concurrence, or a majority of them, with the defendant, in his rejection of the vote; what influence on the minds of the jury ought such concurrence to have?\\nAlso, has it been proved before the court and jury, that J. W. Duncan concurred in the rejection of said vote.\\nBradford, dep. att\\u2019y. gen\\u2019l. for the State.\\nRogers, jr., for defendant.\", \"word_count\": \"510\", \"char_count\": \"2888\", \"text\": \"By the Court.\\n\\u2014The matters referred to, in the note from the jury, are rather within their own province to decide upon, than that of the court; but we may, perhaps, properly make some suggestions in reply to your communication.\\nWhat we understand the jury to mean by positive proof of corruption, is not possible in a direct sense, for the motives of a man's conduct, and the impulses of his heart, cannot be the subject of direct positive proof; but there must be proof so clear, or positive, as to pi'oduce conviction, of acts; or declarations, or circumstances, from which the jury can, and indeed, have to, draw the inference of corruption. It is difficult to define corruption; but we may say, that it,is the wilfully and corruptly doing an act, or omitting a duty, which a person acting in a public capacity, knoios it to be his duty to do, or omit; in disregard of his official duty, and the obligations of his oath.\\nAs to the connection of other persons in such violations of duty, where the corruption is proved, their participation can be no shelter or excuse for the defendant; but their consent to the act may be regarded in considering the probability of the defendant's corruption.\\nAs to the fact whether all the judges concurred in rejecting this vote; it is for the jury, not for us, to say, whether it was proved. Our note of Mr. Cleland's testimony, is, that he said we, meaning himself and Mr. Duncan, the judges of the election, were satisfied to reject the vote.\\nThe jury came in again at about 8 o'clock, P. M., and stated that they had riot agreed, and probably never would agree, they having been out about twenty-seven hours, and no nearer together than when they first retired. Whereupon, a juror was withdrawn, and they were discharged.\"}"

delaware/1867893.json

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+"{\"id\": \"1867893\", \"name\": \"JOHN DOE, lessee of JAMES MARTIN vs. RICHARD ROE, casual ejector, and JAMES ROACH tenant in possession; SAME PLAINTIFF vs. ROE, and ISAAC WHITE tenant\", \"name_abbreviation\": \"Doe v. Roe\", \"decision_date\": \"1835\", \"docket_number\": \"\", \"first_page\": \"477\", \"last_page\": \"494\", \"citations\": \"1 Harr. 477\", \"volume\": \"1\", \"reporter\": \"Delaware Reports\", \"court\": \"Delaware Superior Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T21:04:02.652105+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOHN DOE, lessee of JAMES MARTIN vs. RICHARD ROE, casual ejector, and JAMES ROACH tenant in possession. SAME PLAINTIFF vs. ROE, and ISAAC WHITE tenant.\", \"head_matter\": \"JOHN DOE, lessee of JAMES MARTIN vs. RICHARD ROE, casual ejector, and JAMES ROACH tenant in possession. SAME PLAINTIFF vs. ROE, and ISAAC WHITE tenant.\\nA devise \\u201cto A. and her heirs forever, except she should die without an heir born of her own body\\u201d then over to B. is an estate tail in A. with a vested remainder in B and not a contingent fee with an executory devise.\\nThe propriety of an order of the Orphans\\u2019 court directing a sale of lands for the payment of debts cannot be controverted in any collateral proceeding.\\nUnder the old act of assembly the record of a deed was by the settled practice of the courts, permitted to be read in evidence, though such deed had not been recorded\\nwithin a year from itsoexecution.\\nEjectments.\\nThe cases were tried together, depending on the same devise in the will of Mary Fergus. The devise was as follows:\\u2014\\nFourthly. I give and bequeath unto my beloved daughter Eliza Fergus the remainder pari of all my real and personal estate to her and her heirs forever except she should die without an heir born of her own body; then my will and desire is that all the last above real and personal estate goes to James Martin, him and his heirs forever.\\u201d\\nThe plff. began his show by a possession in Hannah Heavilo as far back as the year 1788. She continued in possession until her death, in 1796, and devised the premises in dispute to her three sons, John, Roderick, and Edward Heavilo, in fee, to be divided, two shares to John and one share each to the others. She nominated John and Roderick her executors. John and Edward entered into possession .after the death of their mother: Roderick went off and has not been heard of for many years. Mrs. Heavilo\\u2019s will was duly proved on the fourth January, 1796, and.to prove the grant of letters testamen tory the plff. gave in evidence a testamentary bond of the same date, filled up in the names of John and Roderick Heavilo as principals, and James Elliott as surety, and conditioned, in the usual form, for the faithful administration of Hannah Heavilo\\u2019s estate by John and Roderick Heavilo, her executors. This bond was executed by John Heavilo and James Elliott only. John Heavilo, by his last will and testament, duly proved and allowed, constituted Benjamin Johnson his executor, who .took out letters and gave bond and surety in due form.\\nThe plff. then offered in evidence the petition of Benjamin Johnson, executor of John Heavilo, who was the executor of Hannah Heavilo to the orphans\\u2019 court of Sussex county for an order to sell the land of the said Hannah Heavilo for the payment of her debts, the order thereupon, and the return of the sale made to Mary Fergus. Objected to.\\nBayard. Hannah Heavilo left as her executors John and Roderick Heavilo. Roderick never renounced, and he was entitled at any time to take out letters. The execution of the will survived to him on the death of John Heavilo. Benjamin Johnson as his executor had no right to interfere with the administration of Hannah Heavilo\\u2019s estate, and the proceedings in the orphans\\u2019 court on his petition were altogether irregular and void. 2 vol. D. L. 891. The entire authority survives to the surviving executor, (Toller, 67, 40-41,,) .and even if one renounces he may take out letters after the death of the other. Unless it can be shown that Roderick died before John Heavilo, the execution of the will devolved on him at John\\u2019s \\u2022death. And the grant of letters, if proved at all in this case, is a joint authority to John and Roderick, for the testamentary bond is \\u2022conditioned for the faithful administration of this estate by them both, and styles them both executors.\\nFrame, for plff.\\nNo doubt at common law, where there are joint executors and one dies, the execution survives to the other; but our act of assembly regulates this matter for us by .providing (2 Del. L. 891) that all letters testamentary shall be void without bond and surety. Roderick Heavilo never gave bond; the grant of letters to him was therefore void, and the whole authority went to John, who complied with the law by. giving bond and surety. And I deny that Roderick had the right, afterward, and whilst the estate was in the course of administration, to interfere with that administration, even oh giving bond; much less could he avoid the acts of the other executor. At all events, until he does give bond he can have no legal authority as executor, and the executor who did give bond and those who legally represent him can proceed in the settlement of the estate. John Heavilo first, and, after his death, Benjamin .Johnson, his executor, were the only legal representatives of Mrs. Heavilo\\u2019s estate, and as such were authorized to apply to the orphans\\u2019 court for an order to sell her lands for the payment of debts. Again. I submit that at this time it is not competent for the court in this way to inquire into and reverse the proceedings of the orphans\\u2019 court. That court had jurisdiction of the subject; it was competent for i.t. to decide the questions now raised, whether John Heavilo was the sole executor of his mother; whether Roderick was excluded, either from not having given bond, or from his subsequent death, which may have appeared to that court; and whether Benjamin Johnson, as the executor of John Heavilo, was not the proper representative of Hannah Heavilo. And its decision of these questions ought not to be controverted in this collateral way.\\nClayton, for deft.\\nThe act of assembly (1 Del. L. 281) only authorizes the orphans\\u2019 court to order a sale on the application of the executor. In terms the act does not give the same power to the executor of an executor. The counsel then is driven to the common law for the principle that an executor of an executor represents the first testator, and the moment he gets there for this principle he is .governed by the other, to wit, that on a joint administration the execution of the will goes to the survivor and not to the executor of a deceased executor. We come then to the question, was John Heavilo the legally constituted executor of Hannah Heavilo? I deny it, and I say that the letters granted to him were absolutely void. The bond is drawn up in the name of John and Roderick Heavilo, and the condition is to secure the faithful administration of the estate by both, jointly. It was signed by John only, and by the surety. The grant of letters upon it either conferred a joint power or none. It could not confer a several power to John, for such was not the condition of the bond. The truth is, it conferred no power to any one: the bond was void, and the grant of letters void. But there is no evidence that letters were ever granted even to John Heavilo. The letters themselves are not exhibited, nor is any register of the grant produced. All rests on this irregular and void bond. We do not controvert any matter judicially decided by the orphans\\u2019 court. These orders of sale are made ex parte, on the application of.the executor or the person presenting himself as the executor. That court, never decided the questions now raised.\\nFrame. The bond we offer is a record. It comes from the register\\u2019s office. No registry of the grant of letters can be found so. far back as 1796; indeed there is no law now requiring such registry, and the practice to this day is different in the different counties on this subject. As to the letters themselves, they are never retained in the office, but given out to the executor. The testamentary bond therefore is in this case the best and the only evidence which can be had of the grant of letters. It states the fact that letters had been granted to John and Roderick Heavilo, and it appears from the face of the bond that Roderick did not execute it. The grant to him was therefore void: was it void also as to the other? The object of taking these bonds is to secure the public; they should be construed so as to attain this end and not to defeat it. Is not the meaning of the act of assembly that the grant of letters shall be void as to those who do not give bond, but good for those who do? Could John Heavilo ever set up the defence to an action on this bond, that he was jointly an executor with another, and therefore not liable?\", \"word_count\": \"7375\", \"char_count\": \"40561\", \"text\": \"By the Court.\\nHarrington, Justice.\\nThe question now submitted to the court is of more consequence in its general bearing than in its operation on the present case. Regarding either the policy of the law or the known rules of evidence, applicable to the question, we are perfectly clear that, on principle, the objection to the evidence now offered ought not to be sustained.\\nIn developing his title the plff. has set out with the proof of a possession many years ago in Hannah Heavilo. To show the transfer of title from her to Mary Fergus, under whom he claims, he offers in evidence an order of the orphans' court, made on the application, of Benjamin Johnson, the executor of John Heavilo, who was executor of Hannah Heavilo, for the sale of these lands for the payment of debts, and the proceedings upon that order under which Mary Fergus became the purchaser. It is objected to this evidence that Benjamin Johnson was not the representative of the estate of Hannah Heavilo, and had no authority to sell these lands; in short, that the order of the orphans' court directing the sale was irregular and void, because made on the petition of a person who was not legally constituted the executor of Mrs. Heavilo. By her will she constituted her two sons, John and Roderick, to be her executors; whether letters were in fact granted to one or both of them is not clearly shown, the only evidence of the grant of letters being a testamentary bond, filled up in the name of both, and conditioned for the faithful administration of the estate by both, but signed only by John Heavilo and by his surety. Roderick Heavilo, it is proved, left the state shortly after the death of his mother, and has never returned. John Heavilo died, having appointed Benjamin Johnson his executor, who took out letters, and as the executor of John Heavilo, who was executor of Hannah Heavilo, obtained the order which is now objected to.\\nIt is conceded that the entering into bond and giving surety is necessary to the appointment of an executor, and that the grant of letters without such bond is void. Roderick Heavilo was therefore never actually the executor of liis mother. Whether the bond given by John Heavilo in the name of both will sustain the grant of letters to Mm alone, and whether the administration passed to his executor or survived to Roderick, or was void as to both, are questions not necessary now to be decided, as we rest our opinion on other considerations. Though it may be remarked that after this lapse of time much would be presumed by a court and jury to supply defects in procedings, and sustain titles acquired under the orders and decrees of a court of competent jurisdiction.\\nThe orphans' court is a court of peculiar and exclusive jurisdiction over the subject matter of this order; and, of course, over the incidents to the proper exercise of this jurisdiction. The act of assembly (1 vol. 281) authorizes it to call executors to an account of their administration, and if the personal estate shall be found insufficient for the payment of debts, and the heirs or devisees of the decedent shall refuse or neglect to pay them, to make an order for the sale of the decedent's lands, all which sales \\\"shall be deemed as available as if the decedents had sold and conveyed the same lands in their life time.\\\" With such authority to proceed in the premises and to decree a sale of the lands, would any irregularity in the proceedings vitiate the title under the court, and could such irregularity be inquired into in 'a collateral way? The proceeding in the orphans' court was said to be ex-parte; it is nevertheless a proceeding in remf which by the act of assembly passes all the title of the decedent in the land, and concludes every body. Roscoe Ev. 103; 1 Levinz. 236. 1 Stark. Ev. 229; \\\"It is evidently essential to the existence of a jurisdiction of this nature that its adjudications upon' the subject matter should be final, not only in the courts in which they are pronounced but in all other courts where the same question arises. It would not only be inconsistent that the decision in rem should not be final in the court in which it is pronounced, but, from the nature of the subject matter, mischievous and inconvenient. Although the parties who are in a greater or less degree affected by the consequenquences of the judgment may change, the subject matter is immutable, and therefore the decision upon it ought not to be liable to be disturbed. And it ought to be binding in other courts, in order to prevent inconsistency, and to support the jurisdiction of the court in which that sentence has been pronounced, for it would be in vain for a court of exclusive jurisdiction to decide, if its decisions upon the subject matter were to be wholly disregarded.\\\" It is doubtful whether any but the heir at law or a creditor could object to the decree, even in the orphans' court or by way of appeal, and it must be regarded as conclusive upon them until vacated or reversed in a regular manner. As a judgment of the court, the propriety of the order of sale of Mrs. Heavilo's land for the payment of her debts is as uncontrovertible in any collateral proceeding as a judgment at law binding on the land and rendering it liable to sale. Suppose the case of a judgment recovered at law against an executor and a sale on such judgment. Could a title derived under such a judgment be invalidated by showing an informality in the executor's bond? And if the objection here made be considered available, you had as well require proof that the executor filed before the orphans' court the accounts of his administration required by the act of assembly, or that the heirs at law or devisees refused or neglected to pay the deficiency, which are pre-requisites to the order for a sale. There is no stopping place if you once get behind the order of the orphans' court and open the door for objection to its proceedings. The principle is immensely important in its general bearings. Many of the titles to land in this state are derived immediately or remotely under a sale by order of the orphans' court, and if these titles are liable to be overturned by any defect in the mode of proceeding, however slight, which may be discovered after a lapse of even thirty-five years, the consequences to the community would be alarming. A defect in the executor's bond, it is here insisted, shall have this operation. A stronger example could not be presented of the danger of looking beyond the decree of the court. What purchaser under a sale in the orphans' court ever examines into the validity of the executor's appointment? And can he reasonably be expected to do so? It is conceded that the existence of a legally constituted executor is necessary to the order of sale, but no more essential than the filing an account of his administration of the personal assets; the establishing of a deficiency; the refusal or neglect of the devisees or heirs at law to pay the debt; or, (under the present law) the giving a new bond by the executor. All these are matters for the orphans' court to examine into and decide upon; and any matter necessarily decided by that court in making its decree cannot ever afterwards be questioned in any collateral proceeding. The representative relation of Benjamin Johnson to the estate of Hannah Heavilo was a matter necessary to be decided by the orphans' court in this proceeding; for the order of sale could have been made only on the application of the representative of the estate.\\nOn this general ground we are of opinion that the record and proceedings of the orphans' court may be given in evidence; but perhaps this case might also be decided on another fact appearing from the record. It is clear that at the time of making the order of sale no one could have objected to it on the ground now taken, but the two other devisees Roderick and Edward Heavilo; and the record shows that they were notified and consented to the order.\\nEvidence admitted. Exception prayed and granted.\\nThe record showed a sale under the order of the Orphans' court of the premises now in possession of the deft. Roach to James Martin as the agent of Mary Fergus on the 14th June, 1800. Sale approved and confirmed.\\nPlif. then offered in evidence the record of the deed of Benjamin Johnson, executor of John Heavilo, who was executor of Hannah Heavilo to Mary Fergus, dated ;22d November, 1800\\u2014proved 21st April, 1802, and recorded, but there was no date of the time of recording. Objected to.\\nBayard. No paper entered on the records of the recorder's office thereby becomes evidence unless such entry be made by the authority of law. The law requires deeds to be recorded within a year after their execution, 1 vol. D. L. 220, and this deed not having been recorded within that time is not evidence without the formal proof of its execution. The deed is not invalidated by not being recorded in due time, but the record of it after the year is not authorized and is therefore not evidence. The deed itself must be produced and proved as at common law.\\nFrame. The language of the old act is that deeds may be recorded within one year after the execution, and not after they bear date. This deed, though dated in Nov. 1800, was not proved or entitled to record until 1802. The time therefore of its execution within the meaning of the law and for the purpose of recording is not so apparent from the face of the deed; and much would be presumed after such a length of time. But the point has always been considered as settled by the practice in the late courts which always permitted these old records to be read in evidence though not made within a year from the date of the deeds. We offer this deed also as an antient paper whose execution would be presumed after such a lapse of time.\\nThe Chief Justice said he had made the objection many years ago before the late supreme court in this county and that court would not permit him to argue it. They considered it then to be well settled. It was afterwards decided in Kent in the case of Stout vs. Pollen (or Nickerson vs. Stout) about twenty years ago.\\nBlack Justice said he had often heard it spoken of in Newcastle county but had not known the point made. The bar considered the question doubtful on the act, but settled by the practice and by decisions which were understood to have been made in the other counties. These decisions had probably induced the strong exclusive expressions in the revised act to which it has been found necessary to add so many supplements extending the time. Objection overruled.\\nBy agreement the further examination of testimony was suspended on the following arrangement. In the case of Martin's Lessee vs. Isaac White, verdict to be rendered for deft. In the case of Martin's Lessee vs. James Roach, verdict to be rendered for the plff. subject to the opinion of the court on the devise in Mary Fergus' will; and subject also to any benefit of exception to the opinion of the court on the preceding questions of evidence.\\nFrame, for plff. \\u2014The question arises on the fourth clause of the will of Mary Fergus. What is the estate which Eliza Fergus took? We say that it is an estate tail, and the devise over is a vested remainder in fee in James Martin. On the part of the deft, it will probably be contended that it is an estate in fee in Eliza Fergus with an executory devise over to James Martin. There is no doubt that the first clause is a direct devise of a fee to Eliza Fergus; yet it is well settled that, even in such a devise, if there be any words added which qualify the word \\\"heirs\\\" and show an intention of limiting it to the heirs of the body of the devisee, it will only create an estate tail.\\u20146 Cruise 202; Devise ch. 12 sec. 7. The question then is, what superaded words will have this effect? and we lay it down with confidence that the expression in this will \\\"except she should die without an heir born of her own body\\\" is of all others the most apt for this purpose.\\nThe whole clause is; \\\"Fourthly. I give and bequeath unto my beloved daughter Eliza Fergus the remainder part of all my real and personal estate to her and her heirs forever, except she should die without an heir born of her own body, then my will and desire is that all the last above real and personal estate goes to James Martin him and his heirs forever.\\\"\\nThe words \\\"if he die without issue\\\" if there be nothing to restrict them to issue living at the death will always reduce a fee simple to an estate tail (sec. 9): yet they are not so strong as this. Heir is a more technical term than issue. Suppose it were \\\"except she should die without issue born of her body\\\" could there he a doubt that it would be but an estate tail? yet the expression here is even stronger. If this is to be construed an executory devise it cannot be after a general failure of issue or heirs of the body, but must be restricted to heirs of the body of Eliza Fergus living at the time of her death. Is there any thing in this will so to restrict it? can it arise from the use of the word \\\"heir\\\" in the singular number? Not so. Here was the devisee an illegitimate daughter of the testatrix. She could have no collateral heirs, and the testatrix saw the propriety of confining it. to the issue of the body, or lineal descendants. It cannot be confined to the immediate issue of the devisee's body, or children; because technically speaking, Eliza Fergus could have no \\\"heir\\\" during her life, as nemo est hceres viventis, but chiefly because it would violate the principal intent of the testator and give the property over to James Martin, a stranger, to the exclusion of grand children. For if Eliza Fergus had had issue or children which had died leaving children these could not take on the death of their grandmother and the whole line of lineal heirs would be cut off. Nothing shall be construed an executory devise which can take effect as a remainder, and a vested remainder is preferred to a contingent. 6 Cruise 319. If there be a devise of both real and personal property the terms may be rendered each to each. The same words may give a fee simple or the entire property in the personal estate, and but an estate tail in the realty. 1 P. Wms. 667; Fearne 476.\\nBayard. The intention of the testatrix in this case cannot be effectuated without giving to her daughter Eliza Fergus a fee simple, dependent, not on her dying without leaving issue at the time of her death, but on the contingency of her having had no heir, or child, born of her own body. The will is evidently drawn by a person unskilled in the use of legal terms\\u2014it was in fact drawn by James Martin, the devisee over\\u2014want of technical knowledge is evident on the face of it. Our business is from such a will; regarding the condition of the testatrix and her family; and her main purposes as appearing from the will itself; to elicit and carry out her designs; without so much regarding the precise legal meaning of the words used. Plain common sense would interpret this will thus:\\u2014\\\"I give to Eliza Fergus my daughter and to her heirs forever all the remainder part of my property.\\\" This is the general intent; to benefit in the fullest extent this first and greatest object of her bounty, her child. And thus far it is a plain fee; but there is a limitation, the common sense meaning of which is equally plain; \\\"except she should die without having had an heir (i. e. a child) born of her body\\\" in that case, and in that case only shall the property go over to a stranger. The word heir may be construed as a word either of limitation or of purchase to meet the intent of the testatrix. 2 Atkyns 582; 3 Chitty Dig. 1365. I agree that \\\"heir\\\" is nomen coilectivum and is the same as heirs, but the use of it here shows that it was intended to mean the same as child; and that it is to be taken as a word of purchase. 1 Croke Rep. 66; Archer's case. The use of the word heir in the singular is the reason why in that case it was construed a word of purchase, and not because there is a limitation over to the heirs of that heir. Fearne 102 (150.) I agree that technically there caqnot be an heir to a living person but the ordinary acceptation and use of the word is the same with child, or heir apparent. Croke Eliz. 453, another report of Archer's case in which it is said that this is the vulgar meaning of heir. \\\"Except she should die without an heir born of her own body;\\\" a very strong expression; the word own is added to show that the design was to confine it to her immediate issue, and not to the issue of such issue. What common person would say that an heir born of her pion body could mean an heir horn of her child's body.\\\" \\\"In case he should depart this life and hear no issue\\\" construed to confine it to issue living at the death of the devisee. Roe vs. Jeffry, 7 T. Rep. 585. \\\"Except she should die without an heir born o\\u00ed her own body is much stronger to show that she meant to confine it to the issue or children born of the body of Eliza Fergus\\u2014to a failure of issue at her death.\\nWhen words applied to real estate would give an estate tail they give an absolute estate in personal property, 1 Mad. 264; Tollel vs. Chatham. The limitation of an estate tail in personal property is void. 3 Vezey Jr. 99 Chandler vs. Price. Is it not certain that Mary Fergus meant to give her personal estate over to Martin on the same event that she gave the real estate. The plff.'s construction undoubtedly defeats this intention as to the personalty, and gives to Eliza Fergus the whole of it without the possibility of its going over to Martin. On our construction that it is a contingent fee dependent on the birth of a child, all the devises both of personal and real may take effect; and the rules of construction require that no part of the instrument shall be defeated if all can take effect. Forth vs. Chapman, 1 P. Wms. 663 is not law.\\nClayton. \\\"Heirs\\\" is a word of peculiar meaning. Heirs of the body of A. are his issue and their issue forever. Powel on devises 361-2. But there is a manifest distinction between heirs of the body of A. and \\\"an heir born of her own body\\\" the former is an estate tail because it plainly embraces all the lineal descendants of the first taker; the latter expression shows an equally plain intention to confine it to the immediate descendants or children of the first taker. It has been said that cases on a will are of very little importance as precedents unless in the same words, for they depend on the intent. No case can be found in which such an expression as this has been construed as restricting a previous plain devise in fee to an estate tail, or giving to the heir born of a person's own body the extended signification of issue or of lineal descendants generally. This case then is not to be governed by authority. It must depend on the meaning which the testatrix herself attached to the words. What was her meaning and intention? Did she use the word heir in its legal signification, extending to the thousandth generation, or did she mean such an heir as should spring immediately from her daughter's body; a child born, in the strong language of the will, of her own body. It is impossible to construe this into an indefinite failure of issue without rejecting the word \\\"own\\\" which is too important as manifesting intent to be rejected. If the words used here force us to the conclusion that the event upon which Mrs. Fergus intended this limitation over to Martin should take effect must happen within the compass of a life or lives in being and twenty one years after, the limitation over is an executory devise and the devise to Eliza Fergus is a contingent fee. And the event necessarily happened within that time. Eliza Fergus was in being, and the heir to be born of her own body had necessarily to be born during her life; if it was not so born the limitation over would take effect; and on the birth of such an heir it was defeated, and the contingent fee became absolute. Cites 1 Chitty, Dig. 345; 9 Vezey 197; 7 T. Rep. 589; Roe vs. Jeffry, Fearne 445; 431; (316) Gore vs. Gore.\\nFrame, in reply.\\u2014The counsel on the other side have taken somewhat different views of this will but they both seem to have settled down on this, that the expression \\\"heir of her own body\\\" means child or children and not issue generally. The great question is, at what time and upon what event was the limitation over to James Martin designed to take effect. Shall it take effect in default of issue living at the death of Eliza Fergus or after a general failure of issue. The law has fixed a meaning to such forms of expression as \\\"dying without issue\\\", \\\"without heir of the body,\\\" \\\"heirs of the body,\\\" &c. &c. and the legal import of all such expressions is a general or indefinte failure of issue. It devolves then on the other side, if this is to be construed an executory devise which it cannot be after a general failure of issue, to show us something indicating the intention of the testatrix to have these terms understood differently from their usual and legal meaning. Doubtless this may and must yield to clear intention, but such intention must be plain and not doubtful. How do they attempt to show this intention? By resorting to the expression itself and rely upon words which have a legal definite meaning to prove a different meaning. Much stress has been laid on the word own. It is not denied that \\\"dying without heirs of her body\\\" would make an estate tail; but \\\"dying without heirs of her own body\\\" is supposed to be a very different thing, as if her body could be other than her own body!! And Powell was cited as supporting some such distinction; which is denied. (Powell on Devises 361-2.) The words first\\u2014next\\u2014eldest child, &c. do not vary the construction, because they express no more than heir; neither can it be varied by heir born of her own body for this is nothing more than heir born of her body. 4 T. Rep. 605; 8 Term Rep. 211; 26 Johns Rep. 396; n. a. Chr. Kent's opinion.\\nThe general intention of the testator in the use of these words is in accordance with the legal meaning attached to them, though the Vulgar meaning may be different; for when a man leaves his property to his child and the lawful issue of that child's body, his intention is that not only children shall take but grandchildren, and the whole line of lineal descendants; though in common acceptation 'issue of his child's body\\\" would mean only children.\\nTo what result will Mr. Clayton's construction lead? If \\\"heir born of her own body\\\" means a child or children living at the death Eliza Fergus, then in case she had had a child and that child had died in the life time of her mother leaving numerous children, the estate would \\\"go over to James Martin to the exclusion of all these grandchildren, for the event would have happened of Eliza Fergus dying \\\"without leaving a child born of her own body.\\\" Such a construction is too monstrous to be entertained for a moment on the ground of the intention of Mrs. Fergus.\\nMr. Bayard's construction is still less plausible. He will have it that the event upon which the estate was to go over to Martin was the dying of Eliza Fergus without \\\"having had a child born of her own body.\\\" How much of a will does he have to make for Mrs. Fergus to get at this!! But establish this construction and it makes it a contingent and conditional fee, and Eliza Fergus having once had a child, the estate could not go to Martin even though at the time of her death there was an entire extinction of her race. Now can it be doubted that the testatrix meant James Martin should have the property if Eliza Fergus died without leaving either children, grandchildren or any issue or descendants? One other thing is absolutely certain from the will; the question whether 'Martin should in fact ever become-entitled to this land was to be determined at the period and on the event of Eliza Fergus' death. But Mr. Bayard's construction makes it dependent on a previous event; the birth of a child. It cannot therefore be correct.\\nOn the question whether the bequest of the personal property in the same words affects the construction as to the reality. I care not whether the same words have the same meaning when applied to different kinds of property, or not. Suppose the law does prevent an entailpient of the personalty, it does not necessarily prevent an entailment of realty; on the contrary the law adjudges such an estate from the very words which fail as to the personal property. A devise of \\\"all my property both real and personal to my son A\\\" gives him the absolute estate in the personalty, and only a life estate in the realty. And see Forth vs. Chapman, 1 P. Wm's. 663 Porter vs. Bradley, et. al. 3 Term, R. 143; 7 T. Rep. 589; Roe vs. Jeffry, &c. 6 Term Rep. 307; Daintry vs. Daintry, 17 Vesey 479; 16 Johns 413.\\nThe Court directed the following entry of judgment.\\nAnd now, to wit, this twentieth day of April,- A. D. 1835, this cause having been argued by counsel on both sides, learned in the law, upon the case stated and agreed upon on both sides and filed in the cause, and the court having heard the same upon the said case stated, it is therefore considered and adjudged by the court, and the court are of the opinion, that the said Eliza Fergus took an estate in tail in the said lands and premises in the said case stated mentioned, by and under the said devise contained in the said last will and testament of the said Mary Fergus in the said case stated also mentioned; and that the limitation or devise of the said lands and premises made in and by said will to the said James Martin was a vested remainder in fee simple; and it is further considered and adjudg ed by the court that the plff. do recover against the deft, seven equal undivided eighth parts of the said lands and premises in the said case stated mentioned; and that judgment be rendered, and the court do hereby render judgment for the plff. against the deft, for the said seven equal undivided eighth parts of the said lands and premises, together with the costs of suit.\\nWhere there is a devise to one and his heirs forever if there be a limitation over and any expression from which it can be collected that the testator intended to restrain the first devise to any particular class of heirs it will be so restricted. As where the limitation over is on a failure of issue; dying without issue of the body, or heirs of the body, &c. the previous g\\u00bb neral devise is restrained to this description of heirs and reduced to an estate tail with a remainder over.\\nThe terms \\\"failing issue\\\"\\u2014\\\"dying without issue\\\" and other expressions of similar import have a fixed legal signification, and mean a general or indefinite failure of issue, unless there be something to show that the testator meant to restrict it to a failure of issue at the time of the death of the first taker. For it is reasonably supposed, when nothing appears to the contrary, that the whole line of lineal descendants of the first taker are the objects of the testutors' bounty as much as the children or immediate issue; and that a construction which would cut oil grandchildren and give the estate to the devisee over on the death of the first taker without children cannot in the general be in accordance with a testators intention. And, though there has been a constant struggle in the cases to apply the first devise to children, and limit the event on which the devise over shall take effect to a dying without issue living at the time, the whole current of authorities has established, that whether the form of expression be \\\"dying without issue\\\"\\u2014\\\"without issue of his body\\\"\\u2014\\\"lawfully begotten of his body\\\"\\u2014\\\"leaving no issue of their respective bodies\\\"\\u2014\\\"dying without an heir of his body\\\"\\u2014&c. &c. the meaning is still the same, an indefinite failure of issue.\\nThe first case in which this form of expression was construed to mean a definite and not a general failure of issue was the case of Pells vs. Brown, Cro. Jac. 590. But that case was decided on the particular form of the devise and was not designed to controvert the general rule. It has moreover been much questioned. See Anderson vs. Jackson, 16 Johns, Rep. 407. Yet it was followed in Porter vs. Bradley, 3 Term. Rep. 143, and Roe vs. Jeffery both of which cases chancellor Kent designates as \\\"blind guides.\\\" In the first, Lord Kenyon thought the words \\\"if he should die leaving no issue behind him\\\" sufficient to restrict it to issue living at his death; and though he placed much stress on the words \\\"behind him\\\" he intimated that the expression leaving no issue would be sufficient. Yet in Daintry vs. Daintry, 6 Term. Rep. 307, it was decided that \\\"if he should happen to die without leaving issue of his body\\\" meant a general failure of issue.\\nIt is observable that in all the cases giving a restricted construction to \\\"issue\\\" they profess not to violate the general rule, but to establish exceptions on the particular words of the will; yet most of them have been regarded as .infringing on the established construction, and have always been more or less controverted. In the principal case the defendant's counsel admitted the general rule; they agreed that if the expression had been \\\"except she should die without issue born of her body\\\" it would have been an estate tail; but they distinguished between \\\"heir\\\" and issue, and laid much stress on the word \\\"own\\\" as indicating an intentian to restrict the meaning. The reason which induced the enlarged meaning applied in legal construction to the word issue, .equally applies to this form of expression, namely, that the testatrix did not intend the estate to go over while there were lineal descendants of her daughter to take it. It applied to this will with peculiar force. The first devise was to the testatrix's only child; the remainderman was a stranger in blood. Without strong evidence of that intention it would not be supposed that she intended he should take to the exclusion of the grandchildren or other lineal descendants of her daughter. There is nothing in the word \\\"heir\\\" either in the singular, or \\\"heirs\\\" in the plural, that should give it a more restricted signification than issue. Heirs is a technical word of greater latitude than issue, comprehending all the blood relatives either lineal or collateral. Heirs of the body or \\\"heirs born of the body\\\" is precisely the same as issue, being restricted to lineal heirs and extending to all the lineal descendants. And \\\"heir\\\" is nomen collectivum, and the same with \\\"heirs.\\\" 3 Bin. Rep. 374. In one of the earliest cases on the stat. de donis a grant to B. and his heirs forever, provided B. had issue of his body begotten; and if he died without heir of his body the land was to revert, was construed an estate tail. In Denn vs. Slater, 5 Term. Rep. 355, on a devise to B. and if he died without male heir then to C. and his heirs; Lord Kenyon said it was clearly an estate tail in B. A devise to a son, and, in case he died without heir of his body lawfully begotten, then over, is an estate tail. Royal vs. Eppes, 2 Munfa. 479. Has the word \\\"own\\\" in this connection, the force attributed to it by the defendant's counsel? It is difficult to distinguish between the heirs of a man's body, and the heirs of his own body; and such a distinction would seem to be too refined to overturn an established rule of construction. It has been sought to apply a like stress on the words \\\"first,\\\" \\\"next,\\\" \\\"eldest heir,\\\" &c. but they have been held not to vary the construction. Powell 361. Lessee of James vs. Avis. 4 Term Rep. 605: under a devise \\\"to A. and B. and their heirs\\\" and in case they agree to sell the estate that they should have their equal share of the money arising therefrom, but if they agreed to keep the estate whole together then that the rents should be equally paid and divided between them and the several and respective heirs of them on their bodies lawfully begotten. \\\" A. and B. took only estates tail. Lessee of Gregory vs. Whichelo, 8 Term Rep. 211. A devise to \\\"A and B. and their heirs forever, provided that if both have issue, then both their dividends to go to the issue of their own bodies\\\" was held an estate tail. Here the word pion actually occurs, and is applied to the issue generally, the nail natonm, et ep\\u00e1 nascentur ab illis.\"}"

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+"{\"id\": \"1872105\", \"name\": \"Equitable Trust Company, a corporation of the State of Delaware, Administrator cum testamento annexo of the Estate of Mabel Bayard Bird, deceased, and Trustee under the Last Will and Testament of the said Mabel Bayard Bird, deceased. vs. Jean Kane Foulke, Elizabeth Kane Rhein, Jean Kane Foulke and Jean Kane Foulke duPont, Executrices of the Will of Florence Bayard Kane, deceased, Sarah Williams Kane and Provident Trust Company of Philadelphia, Trustees of the residuary estate under the Will of James A. Bayard Kane, Margaret Paul Kane, residuary legatee under the Will of John Kent Kane, Mabel Kane Fox, Florence Kane Foskett, John Kent Kane, Jr., Frank Paul Kane and Braden Bayard Kane\", \"name_abbreviation\": \"Equitable Trust Co. v. Foulke\", \"decision_date\": \"1945-01-10\", \"docket_number\": \"\", \"first_page\": \"238\", \"last_page\": \"250\", \"citations\": \"28 Del. Ch. 238\", \"volume\": \"28\", \"reporter\": \"Delaware Chancery Reports\", \"court\": \"Delaware Court of Chancery\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T20:43:23.054630+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Equitable Trust Company, a corporation of the State of Delaware, Administrator cum testamento annexo of the Estate of Mabel Bayard Bird, deceased, and Trustee under the Last Will and Testament of the said Mabel Bayard Bird, deceased. vs. Jean Kane Foulke, Elizabeth Kane Rhein, Jean Kane Foulke and Jean Kane Foulke duPont, Executrices of the Will of Florence Bayard Kane, deceased, Sarah Williams Kane and Provident Trust Company of Philadelphia, Trustees of the residuary estate under the Will of James A. Bayard Kane, Margaret Paul Kane, residuary legatee under the Will of John Kent Kane, Mabel Kane Fox, Florence Kane Foskett, John Kent Kane, Jr., Frank Paul Kane and Braden Bayard Kane.\", \"head_matter\": \"Equitable Trust Company, a corporation of the State of Delaware, Administrator cum testamento annexo of the Estate of Mabel Bayard Bird, deceased, and Trustee under the Last Will and Testament of the said Mabel Bayard Bird, deceased. vs. Jean Kane Foulke, Elizabeth Kane Rhein, Jean Kane Foulke and Jean Kane Foulke duPont, Executrices of the Will of Florence Bayard Kane, deceased, Sarah Williams Kane and Provident Trust Company of Philadelphia, Trustees of the residuary estate under the Will of James A. Bayard Kane, Margaret Paul Kane, residuary legatee under the Will of John Kent Kane, Mabel Kane Fox, Florence Kane Foskett, John Kent Kane, Jr., Frank Paul Kane and Braden Bayard Kane.\\nNew Castle,\\nJanuary 10, 1945.\\nCaleb S. Layton, of the firm of Richards, Layton & Finger, for complainant.\\nJames R. Morford of the firm of Marvel & Morford, and Thomas Cooch for Mabel Kane Fox, Florence Kane Foskett, John Kent Kane, Jr., Frank Paul Kane, and Braden Bayard Kane.\\nLighton S. Dorsey and John Hemphill, of Philadelphia, Pa., for Jean Kane Foulke, and Jean Kane Foulke duPont, executrices of the will of Florence Bayard Kane, deceased.\", \"word_count\": \"3375\", \"char_count\": \"19507\", \"text\": \"Harrington, Chancellor:\\nThe question to be determined is the validity and effect of the exercise of the power of appointment by Mabel Bayard Bird, given her by the will of her father, James Ashton Bayard.\\nJames Ashton Bayard died in 1880, and by his will dated April 14th, 1871, and.a codicil thereto, dated May \\u2014, 1874, he gave and devised to his son, Thomas F. Bayard, a one-third part of the residue of his real and personal estate, in trust, for the sole and separate use of Mabel Bayard Kane, who later became the wife of Levi C. Bird, for her natural life. By the Third Item of that instrument, the testator also provided:\\n\\\" at her decease I give and bequeath the said property so mentioned in this Item to and among her children in such shares as she may by any last Will appoint\\nThe codicil is unimportant, and its provisions will not be set out.\\nMabel Bayard Bird died November 28th, 1897, and by her will expressly assumed to exercise the power of appointment given her by her father's will. She left to survive her five children, Jean Kane Foulke, Florence Bay ard Kane, James A. Bayard Kane, John Kent Kane and Elizabeth Kane, who first married one Norris, and later became the wife of Dr. John H. W. Rhein.\\nBy the will of Mabel Bayard Bird, dated July 3rd, 1889, and a codicil thereto dated April 10th, 1895, she bequeathed and devised all of her own individual property, and appointed the property over which she had the power, to her brother, Thomas F. Bayard, in trust. In that instrument, she first recited that, though she wished to provide equitably for each of her children, she especially desired that her two unmarried daughters, Florence Bayard Kane and Elizabeth Kane, \\\"while they continue unmarried, should receive an income from my (her) estate sufficient to provide and keep for them a home, and in the event of the marriage of either that the daughter remaining unmarried should receive sufficient income to secure her independence.\\\" She then directed her trustee (1) to- pay from the income arising from the trust fund to her two daughters, \\\"Florence Bayard Kane and Elizabeth Kane, each the sum of One Thousand Dollars yearly, so long as they continue to live together and both remain unmarried\\u2014:and the residue of all the income from my estate shall be divided by the said Trustee equally among my other three children\\u2014viz\\u2014Jean Kane Foulke (wife of George Foulke) James Ashton Bayard Kane, and John Kent Kane\\u2014the issue of any deceased child to take the same share their or its parent would have taken if living\\u2014\\\"; (2) \\\"in the event of the marriage or death of either of my said daughters Florence Bayard Kane or Elizabeth Kane the sum of Twelve Hundred Dollars income shall then be annually paid by the said Trustee unto the daughter who shall remain unmarried\\u2014and the residue of the income of my estate shall be equally divided among all my other children, the issue of any deceased Child to take the same share their or its parent would have taken if living\\u2014\\\" (3) \\\" in the event of the marriage or death of both of my said daughters Florence Bayard Kane and Elizabeth Kane, or of their ceasing to live together while both remain unmarried, then I direct that the entire income of my estate shall be equally divided among all my children share and share alike, and in the event of the death of any one or more of my children leaving a child or children or the issue then living of said child or children, such child or children shall receive such portion of the income and share of my estate as his, her or their parent would have received if living\\\"; and (4) \\\" in the event of the Marriage or death of my said daughters, Florence Bayard Kane and Elizabeth Kane, after the death of both Levi C. Bird and Susan Faussett, then the trust hereby created shall terminote and the said Trustee shall divide the whole corpus of my Estate equally among all my Children then living, or the issue then living of such of my children as may then be dead, 'per stirpes' and not 'per capita'.\\\"\\nLevi C. Bird, the husband of Mabel Bayard Bird, the testatrix, and Susan Faussett were to receive certain bequests during their lives, the former on his birthday, and the latter at Christmas, both predeceased Florence Bayard Kane.\\nThe bill alleges, and the answer filed admits, that Florence Bayard Kane and Elizabeth Kane Rhein were both living .at the death of James Ashton Bayard. While not alleged in the bill, it is conceded that the other children of Mabel Bayard Bird were also in being at the death of their grandfather.\\nFlorence Bayard Kane died May 14th, 1943, unmarried and without issue, and Jean Kane Foulke and Jean Kane Foulke duPont are the executrices of her will.\\nJames A. Bayard Kane died August 31st, 1931 and left to survive him one daughter, Mabel Kane Fox. His estate has been closed, and Sarah Williams Kane and Provident Trust Company of Philadelphia are the trustees of the residue.\\nJohn Kent Kane died November 14th, 1937, leaving to survive him four children, Florence Kane Foskett, John Kent Kane, Jr., Frank Paul Kane and Braden Bayard Kane. His estate has also been closed, and Margaret Paul Kane is the residuary legatee under his will.\\nThomas F. Bayard, the executor and trustee under the will of Mabel Bayard Bird, renounced the appointment in both capacities, and Equitable Trust Company, the complainant, was appointed administrator c.t.a. of her estate by the Register of Wills for New Castle County. The complainant also became successor trustee by designation of the children of the said Mabel Bayard Bird, pursuant to the provisions of the codicil to her will.\\nThe marriage of Elizabeth Kane Rhein and the subsequent death of Florence Bayard Kane on May 14th, 1943 terminated the trust; and the rights of the various parties must be determined as of that date. That is conceded by all parties who appeared and argued the case. The complainant, as trustee, at that time had in hand $118,429.73, of which $33,834.91 was received from Thomas F. Bayard, as trustee of Mabel Bayard Bird under the will of James Ashton Bayard, deceased; and, as administrator c.t.a. and trustee, it seeks instructions with respect to the proper distribution of the funds in hand.\\nThe intent of James Ashton Bayard, as shown by his will, is the controlling factor in determining the scope of the power given Mabel Bayard Bird. Harker v. Reilly, 4 Del. Ch. 72; Wilmington Trust Co. v. Wilmington Trust Co., 21 Del.Ch. 102, 180 A. 597; Wilmington Trust Co. v. Wilmington Trust Co., 25 Del.Ch. 121, 15 A.2d 153; 49 C.J. 1266. In effect, the appointment was in trust during the life of her daughter, Florence Bayard Kane, or so long as she remained unmarried, during which time she was to receive a specified income from the entire trust fund; the excess income, if any, was to be paid to the donee's other children and to the issue of deceased children. The major life provision for Elizabeth Kane Rhein never took effect because of her marriage prior to the death of her mother.\\nIn exercising the power, the donee could have given absolute and unqualified rights to her children \\\"in such shares\\\" as she might appoint, but the right to appoint lesser interests to objects of the power was neither expressly nor impliedly prohibited, and was lawful. Wilmington Trust Co. v. Wilmington Trust Co., supra; 1 Sugden on Powers, * p. 491. The power was special only as to the persons among whom the fund could be appointed, and not as to the quantum of their interests; and the unrestricted power to appoint absolute interests includes the right to appoint lesser interests. Id.; Jebb v. Tugwell, 44 Eng. Repr. 258; Thompson on Wills, (2d Ed.) 493. When the exercise of a power is merely restricted to certain persons, the reasonable inference is that the nature of the interest to be appointed is left to the donee's discretion. The testator's use of the words \\\"in such shares\\\" does not mean that only absolute and immediate rights could be appointed among the objects of the power. Lawrence's Estate, 136 Pa. 354, 20 A. 521, 11 L.R.A. 85, 20 Am.St.Rep. 925; 41 Amer.Jur. 854. In Wilmington Trust Company v. Wilmington Trust Company, supra, this court reached the same conclusion when the authorized appointment was \\\"in such proportions\\\" as the donee might designate. In Matter of Kennedy's Will, 279 N.Y. 255, 18 N.E.2d 146, the power was couched in somewhat different language, and was regarded as wholly special; and in so far as the broad general statements of the court might be inconsistent with the conclusion in this case, they were not followed in the Wilmington Trust Company cases. Nor was the donee compelled to appoint equal rights in the income to her children; but the attempted appointment of a portion of it, and ultimately of a portion of the capital to the issue of deceased children, was void.\\nIn the absence of something to show1 a contrary intent, the word \\\"children\\\" in the donor's will creating the power, must be given its usual and ordinary meaning, and, under such circumstances, a power to appoint to children does not include the right to appoint to their issue. 2 Sugden on Powers, *p. 253; Jarnagin v. Conway. 21 Tenn. 50.\\nIt does not appear how the excess income from the Bayard fund, if any, was distributed during the life of Florence Bayard Kane, and no possible relief, with respect thereto, is involved in this proceeding.\\nThe next contention relates to the distribution of the corpus of the Bayard fund in the hands of the trustee. Mabel Bayard Bird directed in her will, that at the termination of the trust, the corpus should be equally divided \\\"among all my (her) children then living or the issue then living of such of my children as may then be dead 'per stirpes' and not 'per capita'.\\\" Of her five children, only Jean Kane Foulke and Elizabeth Kane Rhein survived Florence Bayard Kane. The important question, therefore, is whether the appointment was valid as to them, though it was clearly invalid as to the children of deceased children.\\nUnder the old general rule, when the donee of a power of appointment includes persons who are not objects of the donor's bounty, the excess appointment is alone invalid. Sadler v. Pratt, 5 Sim. 632, 58 Eng.Repr. 476; In re Perkins, [1893] 1 Ch. 283; 2 Sug. on Powers, 56, *p. 62; 1 Simes Fut. Int., \\u00a7 274; 41 Amer. Jur. 861; 49 C.J. 1300; see also Wilmington Trust Co. v. Wilmington Trust Co., 21 Del.Ch. 188, 186 A. 903. In other words, \\\" ordinarily, if the appointment is in part within the terms of the power and in part in excess of them, it will be void only for the excess.\\\" 1 Simes Fut. Int., \\u00a7 274; Sadler v. Pratt, supra. In such cases, the boundaries between the excess and the proper execution of the power are regarded as precise and apparent, so that the shares of the legitimate objects can be readily ascertained. In re Perkins, supra; Alexander v. Alexander, 28 Eng.Repr. 408; 121 A.L.R. 1227. Moreover, when there is a complete execution of a power and some unauthorized con dition or limitation, primarily for the benefit of non objects, is added by the donee, that part is void, but the appointment is otherwise good. In re Holland, [1914] 2 Ch. 595; Alexander v. Alexander, Supra; In re Perkins, supra; 21 R.C.L. 431.\\nUnder the old rule, when \\\" a part of the fund is ill appointed, it goes according to its original destination in the event of there being no appointment. And consequently a person to whom a specific share is well appointed shall not be excluded from taking any of the unappointed shares.\\\" Sugden on Powers, 202, *p. 220.\\nIf these general principles be applied, the two surviving daughters of Mabel Bayard Bird would together be entitled to more than one-half of the entire appointive fund. Each of them would get not only their shares under the appointment, but under the default provision of James AshBayard's will, would also take one-fifth of the part illegally appointed. It is contended that the application of this rule would cause an inequitable result; that if the appointment of the corpus of the fund is void in part, the donee's real intent would be more nearly carried out by holding it entirely void, and by distributing the whole fund under the \\\"default provision of James Ashton Bayard's will.\\nThe rule adopted by the Restatement of the Law of Property (Future Interests) is largely relied on. Section 362, in part, states:\\n\\\"Where one part of an appointment is ineffective but another part would, if standing alone, be effective, such other part is given effect unless\\n\\\"(a) the two parts are so mingled that it is impossible to fix the line of division between them, or\\n\\\"(b) the donee's scheme of disposition is more closely approximated by allowing both parts to pass in default of appointment than by treating as valid the latter part of the appointment and allowing only the property covered by the former part to pass in default.\\n\\n\\\"b. Rationale. Whenever part of a dispositive scheme fails, and it is possible to separate that part from the balance of the disposition, there always arises the question whether that part was so essential to the whole that its failure causes the failure of the remaining parts, of themselves valid. The answer to this question depends upon whether the general dispositive scheme disclosed in the instrument is more nearly approximated by treating as effective the remaining part or by allowing the property to pass to those persons who would receive it if no disposition had been attempted; for it is inferred that the person making the disposition desires the remaining part to stand only if thereby the purposes of the original disposition are advanced. When the partial invalidity so distorts the dispositive scheme that it is inferable that the person making the disposition would not prefer the balance to stand alone, then the entire disposition fails. -\\n\\\"This general rule is applicable in cases where the donee of a power has made an appointment which is partially ineffective. If the general scheme of appointment shown in 'the donee's instrument would be better carried out by allowing the property to pass in default of appointment, the entire appointment fails and the property passes in default.\\\"\\nAs we have seen, there is little, if any, authority for that rule in England, but it was recognized by some courts and text books in this country before the Restatement was published. While less specific, Simes recognizes it in principle by the statement that \\\"a case may arise where to strike out the void portion of the appointment so completely defeats the donee's intent as to render the entire appointment void.\\\" 1 Simes Fut. Int., \\u00a7 274. See also Old Colony Trust Co. v. Richardson, 297 Mass. 147, 7 N.E.2d 432, 121 A.L.R. 1218; Varrell v. Wendell. 20 N.H. 431; Graham v. Whitridge, 99 Md. 428, 57 A. 609, 58 A. 36, 66 L.R.A. 408; Parker v. MacBryde, (4 Cir.) 132 F.2d 932; Hamilton v. Royse, 2 Sch. & Lef. 315; 121 A.L.R. 1227; 49 C.J. 1300.\\nThe will of James Ashton Bayard provided that if Mabel Bayard Bird failed to exercise the power given her, the corpus of the fund shall be held \\\"for all and every her child and children if more than one in equal shares and the issue of any child who may have died in her lifetime to take the same as its parent would have taken if living That provision would include all of the donee's children living at her death, and the issue of any who might have died in her lifetime, the latter to take the same shares their parents would have taken if living. All of her children survived her, but the attempted appointment was quite similar in its real intent. It provided that at the termination of the trust, the corpus should be divided equally among all of the donee's children, then living, or the issue then living of such as might be dead, \\\"per stirpes\\\" and not \\\"per capita\\\". It, therefore, seems proper to apply the Restatement rule to this case.\\nNeither Wilmington Trust Company v. Wilmington Trust Company, 21 Del.Ch. 188, 186 A. 903, nor Equitable Trust Company v. Snader, 17 Del.Ch. 203, 151 A. 712; Id., 17 Del.Ch. 308, 154 A. 15, is inconsistent with this conclusion. There might be some general statements in the first case that may be relied on in support of the old English rule, but the facts were very different.\\nThe equitable interests appointed during the life of Florence Bayard Kane were also void in part, but the Restatement rule is not applicable.\\nThe donee, in attempting to exercise the power given her, recited that, while she wished to provide for all of her children equitably, she especially desired to provide for her unmarried daughters so long as they should remain single. Apparently that was her primary intent. Moreover, the ultimate annual income of $1200 provided for was to be paid from the entire trust fund, and not from the Bayard fund ($33,834.91) alone. Under the circumstances, the.inference is not justified that the donee of the power would not have exercised it in favor of any of her children had she known that no part of the excess annual income from the Bayard fund, if any, could be appointed to the issue of deceased children. The probable total income from that fund during the life of Florence Bayard Kane, and the portion she re ceived therefrom, is emphasized; but, in view of the clear intent of the donee of the power, that is unimportant.\\nApplying the above principles, the corpus of the Bayard fund should be equally divided among Jean Kane Foulke, Elizabeth Kane Rhein, the executrices of Florence Bayard Kane, the estate of James A. Bayard Kane, deceased, and the estate of John Kent Kane, deceased.\\nOrdinarily, moneys due the estates of deceased persons should be paid to their personal representatives, but when their estates have been closed and balances turned over to the proper parties, there is usually no good reason why the payment should not be made directly to them. Huxley v. Security Trust Co., 27 Del.Ch. 206, 33 A.2d 679. The amount due the estate of James A. Bayard Kane can, therefore, be paid to Sarah Williams Kane and Provident Trust Company of Philadelphia, the trustees of his residuary estate, and the amount due the estate of John Kent Kane can likewise be paid to Margaret Paul Kane, his residuary legatee.\\nA decree will be entered in accordance with this opinion.\"}"

delaware/418161.json

@@ -0,0 +1 @@
+"{\"id\": \"418161\", \"name\": \"Charles W. Cullen, Trustee in Bankruptcy of The Delmar Lumber Manufacturing Company, a corporation of the State of Delaware, vs. Mary A. Veasey\", \"name_abbreviation\": \"Cullen v. Veasey\", \"decision_date\": \"1914-02-04\", \"docket_number\": \"\", \"first_page\": \"537\", \"last_page\": \"539\", \"citations\": \"4 Boyce 537\", \"volume\": \"27\", \"reporter\": \"Delaware Reports\", \"court\": \"Delaware Superior Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T22:49:59.699372+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Charles W. Cullen, Trustee in Bankruptcy of The Delmar Lumber Manufacturing Company, a corporation of the State of Delaware, vs. Mary A. Veasey.\", \"head_matter\": \"Charles W. Cullen, Trustee in Bankruptcy of The Delmar Lumber Manufacturing Company, a corporation of the State of Delaware, vs. Mary A. Veasey.\\n1. Pleading\\u2014Demurrer\\u2014Admissions.\\nA general demurrer admits all of the material facts well pleaded.\\n2. Sales\\u2014Action for Price\\u2014Replication.\\nIn assumpsit for goods sold, defendant pleaded payment, and the replication alleged that defendant's husband was formerly the president of a bankrupt corporation of which plaintiE was trustee, and that the corporation was formally adjudged bankrupt, and that defendant, with the influence of her husband, fraudulently and with the intent of defrauding the company\\u2019s creditors, and creating an illegal preference in favor of her husband, four months before the filing of the petition of bankruptcy, transferred her indebtedness to the corporation to her husband, an alleged creditor of it, and that defendant\\u2019s husband thereupon, wrongfully and without the consent of the company\\u2019s board of directors, credited defendant with payment of her indebtedness to the company, and also set oE defendant\\u2019s debt to the company, to the amount so pleaded by her, against the indebtedness of the company to defendant\\u2019s husband, thereby creating in her husband an illegal preference in violation of the federal Bankrupt Act (Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418]). Held, that the replication was good on demurrer.\\n(February 4, 1914.)\\nJudges Boyce and Conrad sitting.\\nAlbert Worth and John W. Huxley, Jr., for the plaintiff.\\nRobert C. White for defendant.\\nSuperior Court, Sussex County,\\nFebruary Term, 1914.\\nAction (No. 14, April Term, 1913) by Charles W. Cullen, trustee in bankruptcy of the Delmar Lumber Manufacturing Company, against Mary A. Veasey. (Trial, post).\\nDeclaration in assumpsit for goods sold and delivered. General demjurrer to the replication of the plaintiff to the third plea of the defendant, being a plea of payment. It was averred in the replication, in substance, that Theodore A. Veasey, husband of the defendant, was on the twenty-second day of June, 1912, president of the said the Delmar Lumber Manufacturing Company, and that on the twentieth day of the same month Willard F. Deputy, one of the officers of the said company, filed a bill in the Court of Chancery of the State of Delaware, in which it was alleged that the company was insolvent, to which bill answer was filed by the said company, admitting all the allegations therein,- under oath of the said Theodore A. Veasey as to the truth of the matters contained in said answer, as well as that the execution and filing thereof were done in pursuance with directions and authority of a resolution of the board of directors of said company, passed on the nineteenth day of June, 1912; that the Chancellor did on the twenty-fourth day of June, 1912, decree the said company to be insolvent and appointed receivers therefor; that on the eleventh day of July, 1912, an involuntary petition in bankruptcy was filed in the United States Court for the District of Delaware, upon which petition the said company was duly adjudged bankrupt; that the defendant, with the influence of her husband, wrongfully, fraudulently and illegally, with the purpose and intent of defrauding the creditors of the said company and creating an illegal preference in favor of the husband of the said defendant, then four months before the filing of the said involuntary petition of bankruptcy, transferred her indebtedness to the said company to her husband, an alleged creditor of the said company; that the defendant\\u2019s husband thereupon wrongfully, illegally and without the consent of the board of directors of the said company, credited the defendant with the payment of her said indebtedness to the said company and also set off the debt of the said defendant to the said company to the amount so pleaded by her against the indebtedness of the said company to the husband of the defendant as set forth in her said plea, thereby creating in her said husband an illegal preference in violation of , Section 68 of the Act of Congress entitled \\u201cAn act to establish a uniform system of bankruptcy throughout the United States.\\u201d\", \"word_count\": \"728\", \"char_count\": \"4409\", \"text\": \"Per Curiam.\\nIt is a rule of pleading that a general demurrer admits all material facts well pleaded. It is the opinion of the court that the replication is good and the demurrer should not be sustained. It is overruled.\"}"

delaware/419667.json

@@ -0,0 +1 @@
+"{\"id\": \"419667\", \"name\": \"William M. Hope and Henry Ridgely vs. George Burton\", \"name_abbreviation\": \"Hope v. Burton\", \"decision_date\": \"1914-05-04\", \"docket_number\": \"\", \"first_page\": \"22\", \"last_page\": \"24\", \"citations\": \"5 Boyce 22\", \"volume\": \"28\", \"reporter\": \"Delaware Reports\", \"court\": \"Delaware Superior Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T20:19:27.484826+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William M. Hope and Henry Ridgely vs. George Burton.\", \"head_matter\": \"William M. Hope and Henry Ridgely vs. George Burton.\\n1. Attorney and Client\\u2014Compensation of Attorney\\u2014Reasonable Compensation.\\nAn attorney at law is entitled to a reasonable compensation for professional services rendered to another, and in determining what is the reasonable value of the services, which varies with the magnitude and the importance of the particular case, the degree of responsibility attaching to its management, the difficulty of the questions involved, the ability and reputation of counsel engaged, and the amount of labor bestowed may be considered.\\n2. Attorney and Client\\u2014Actions for Attorneys\\u2019 Compensation\\u2014 Evidence\\u2014Opinion of Client.\\nIn an action by attorneys for their compensation, testimony by the defendant that he regarded the amount of plaintiffs\\u2019 claim as a joke and as unreasonable, and that he thought he had been overcharged, has no probative force or value.\\n3. Trial\\u2014Verdict\\u2014Determination.\\nIn all civil actions the verdict of the jury should be in accordance with the preponderance of the evidence.\\n(May 4, 1914.)\\nJudges Boyce and Conrad sitting.\\nJohn B. Hutton for plaintiffs.\\nJames H. Hughes, attorney for pleading to issue; the defendant preferring to conduct his own defense thereafter.\\nSuperior Court, Kent County,\\nApril Term, 1914.\\nAssumpsit (No. 45, February Term, 1914) by William M. -Hope and another against George Burton to recover fees for services as attorneys at law, rendered to defendant.\\nThe defendant had counsel for pleading to issue, but preferred to conduct his own defense thereafter.\\nThe case is stated in the charge of the court.\", \"word_count\": \"886\", \"char_count\": \"5293\", \"text\": \"Boyce, J.,\\ncharging the jury:\\nGentlemen of the jury:\\u2014This is an action of assumpsit on the common counts brought by the plaintiffs against the defendant to recover the value of services rendered for him as attorneys at law in the defense of a will contest and in connection with certain other matters testified to by the plaintiffs.\\nThe defendant, a layman, employed counsel to plead this case to issue only and then on his own volition he assumed personal charge thereof, which he has undertaken to conduct here at the trial. The defense relied upon is the general issue of non assumpsit. The defendant concedes that he retained the plaintiffs in defense of the will contest which resulted in his favor and in connection with the other matters detailed by the plaintiffs. There is no suggestion that the services were rendered gratuitously, but it is admitted by the defendant that he did make inquiry of his attorneys at or about the time of their engagement, and perhaps one or more times thereafter, respecting the compensation which they would expect for their services and that no amount was agreed upon.\\nThe plaintiffs gave testimony at much length as to the kind and character of the services rendered and also as to the time consumed by them.\\nAn attorney at law when retained by another is entitled to fair and reasonable compensation for professional services rendered, and he may maintain an action therefor. In the absence of an express agreement, there is no fixed standard by which the value of the services of an attorney can be determined. Their value and reasonable price may vary with the magnitude and importance of the particular case, the degree of responsibility attaching to its management, the difficulty of the questions in- valved, the ability and reputation of counsel engaged, the labor bestowed, and other matters which will readily occur, especially to members of the profession. Lawson, Exp. Ev. rule 21.\\nThe plaintiffs have testified as to the nature and importance of the matters relative to which they rendered services for the defendant; likewise as to the character of the issues and the amount involved, labor bestowed, and time required; and also that their services are reasonably worth the sum of three thousand dollars, the amount which they claim in this action. Testimony of other members of the bar of skill and experience has been introduced to the effect that the claim of the plaintiffs is fair and reasonable. The defendant does not deny or attempt to disprove that the plaintiffs were retained by him as his counsel or that the services for which this action was brought were not rendered. He does not even suggest that the plaintiffs did not exercise reasonable diligence and skill, and he has not offered any legal evidence in depreciation of the value of the services upon a quantum meruit.\\nIt was competent for the defendant, under the pleadings in this case, to disprove the plaintiffs' claim in whole or part, if he could do so. It is true, the defendant testified to the effect that when the plaintiffs made known to him the amount of their claim, he regarded it as a joke, and he considers the amount claimed unreasonable. He has merely expressed an opinion claiming that he has been overcharged. This has no probative force or value\\u2014that is, it proves nothing.\\nCounsel for the plaintiffs has withdrawn his motion for binding instructions, and the case goes to you upon the evidence before you and you are to decide the case in accordance with the evidence as given.\\nIn all civil actions, the verdict of the jury should be in accordance with the preponderance of the evidence, and that is our charge to you in this case.\\nVerdict for plaintiffs.\"}"

delaware/422918.json

@@ -0,0 +1 @@
+"{\"id\": \"422918\", \"name\": \"James H. Thomas, d. b. a., vs. Frederick P. Ruhl, p. b. r.\", \"name_abbreviation\": \"Thomas v. Ruhl\", \"decision_date\": \"1919-10-27\", \"docket_number\": \"Appeal No. 1\", \"first_page\": \"437\", \"last_page\": \"438\", \"citations\": \"7 Boyce 437\", \"volume\": \"30\", \"reporter\": \"Delaware Reports\", \"court\": \"Delaware Superior Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T22:49:01.645923+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"James H. Thomas, d. b. a., vs. Frederick P. Ruhl, p. b. r.\", \"head_matter\": \"James H. Thomas, d. b. a., vs. Frederick P. Ruhl, p. b. r.\\nWitnesses\\u2014Fees of Expert Testifying Before Justice.\\nThe law and rule of court authorizing payment of five dollars a day to a witness testifying as-an expert does not apply to witnesses giving testimony before a justice of the peace, and any agreement to pay witnesses more than the legal fees for testifying before a justice is unenforceable by action.\\n(October 27, 1919.)\\nPbnnewill, C. J., and Boyce, J., sitting.\\nJohn D. Hawkins for the appellant.\\nJ. Hall Anderson for the respondent.\\nSuperior Court for Kent County,\\nOctober Term, 1919.\\nAppeal No. 1,\\nApril Term, 1919.\\nAction by Frederick P. Ruhl before a justice of the peace against James H. Thomas. Judgment for plaintiff. Defendant brings appeal. Trial before jury. Verdict for appellant.\", \"word_count\": \"362\", \"char_count\": \"2084\", \"text\": \"Pennewill, C. J.,\\ncharging the jury:\\nThis is an action of assumpsit brought by the plaintiff against the defendant to recover an amount which the plaintiff claims is due and owing to him for services rendered the defendant as an expert witness in a trial before, a justice of the peace in which the defendant was plaintiff.\\nThe plaintiff contends that the defendant requested him to attend said trial and give testimony as an expert witness, and agreed to pay him the sum of five dollars for each day's attendance and mileage.\\nThe defendant denies that he made any agreement to pay the plaintiff more than the usual and legal witness fees and mileage, all of which he contends he has paid.\\nThe court instruct you that the plaintiff cannot recover in this case a greater amount than the difference between the amount the testimony shows the defendant has paid, and the legal fees and mileage. Any agreement to pay more than such fees would be against public policy and void. The law and rule of court, which authorize the payment of five dollars to a witness testifying in a case as an expert, does not apply to witnesses giving testimony before a justice of the peace, and any agreement to pay more than the legal fees is unenforceable in an action at law.\\nVerdict for appellant.\"}"

delaware/422953.json

@@ -0,0 +1 @@
+"{\"id\": \"422953\", \"name\": \"Sadie G. Lemmon, widow of Walter J. Lemmon, vs. Luke H. Broadwater\", \"name_abbreviation\": \"Lemmon v. Broadwater\", \"decision_date\": \"1919-12-08\", \"docket_number\": \"Summons Case, No. 46\", \"first_page\": \"472\", \"last_page\": \"478\", \"citations\": \"7 Boyce 472\", \"volume\": \"30\", \"reporter\": \"Delaware Reports\", \"court\": \"Delaware Superior Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T22:49:01.645923+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Sadie G. Lemmon, widow of Walter J. Lemmon, vs. Luke H. Broadwater.\", \"head_matter\": \"Sadie G. Lemmon, widow of Walter J. Lemmon, vs. Luke H. Broadwater.\\n1. Negligence\\u2014Burden of proof.\\nNegligence is never presumed, and plaintiff must affirmatively show that defendant neglected some duty he owed to deceased.\\n2. Negligence\\u2014Definition.\\nNegligence is want of ordinary care, or the want of such care as a reasonably prudent and careful person would exercise in similar circumstances.\\n3. Highways\\u2014Rights of automobile driver and motorcyclist.\\nAn automobile driver and motorcyclist have equal rights to lawfully use public highways, and each may assume the other will exercise ordinary care, and not carelessly expose to danger or negligently injure the other.\\n4. Highways\\u2014Collision Due to Traveler on Wrong Side of Road.\\nTraveler on public highway should proceed on the right hand side, and upon meeting a person traveling on the wrong side may assume that such person will do everything reasonably possible to avoid a collision, andisnothimself responsible for any collision if he does all that a reasonably careful person would have done to prevent it.\\n5. Highways\\u2014Duty of Persons Operating Motor Vehicles Upon Meeting.\\nPersons operating motor vehicles on a public highway upon meeting should turn to the right side of the highway, so that the other vehicle may pass with safety.\\n6. Highways\\u2014Violation of Speed Statute as Negligence per se.\\nExceeding the speed limits prescribed by Rev. Code 1915, \\u00a7 246, for motor vehicles on highways constitutes negligence per se.\\n7. Highways\\u2014Exceeding Statutory Speed Must Proximately cause Injury.\\nA defendant is not hable for violating Rev. Code 1915, \\u00a7 246, prescribing speed limits for motor vehicles on highways, unless the violation of the statute caused the accident of which plaintiff complains.\\n8. Highways\\u2014Collision Between Motor Vehicles Does Not Create Presumption of Negligence.\\nThe fact that a motorcyclist was killed in a collision with an automobile on a public highway does not create a presumption of negligence either on the part of the deceased or defendant automobile driver.\\n9. Highways\\u2014Contributory Negligence Bars Recovery.\\nIf deceased motorcyclist was negligent in colliding with an automobile, no recovery could be had for his death, even if defendant automobile driver was also negligent.\\n10. Highways\\u2014No Recovery For \\u201cUnavoidable Accident.\\\"\\nNo recovery can be had for death caused in a collision between motor vehicles if the collision was an \\u201cunavoidable accident\\\" or one which could not be prevented by the exercise of ordinary care and prudence.\\n11. Evidence\\u2014Matters Considered in Determining Weight.\\nIn weighing testimony the jury may consider the appearance and manner of witnesses, their apparent fairness or bias, their intelligence and opportunities for observing, and other elements which may fairly test their truthfulness and accuracy.\\n12. Death\\u2014Damages For Death of Husband.\\nA wife may recover for her husband\\u2019s negligent killing such damages as will reasonably compensate her for all damages which she has sustained, or may sustain, based upon deceased\\u2019s probable length of life, and governed by the portion of his income that plaintiff would have probably received if he had lived..\\n(December 8, 1919.)\\nBoyce and Rice, J. J., sitting.\\nW.W. Knowles for the plaintiff.\\nRobert H. Richards and Aaron-Finger for the defendant.\\nSuperior Court, New Castle County,\\nNovember Term, 1919.\\nSummons Case, No. 46,\\nMarch Term, 1919.\\nAction by Sadie G. Lemmon against Luke H. Broadwater to recover damages for the death of her husband, Walter J. Lemmon. Verdict for the plaintiff.\\nThe facts sufficiently appear in the charge of the court.\", \"word_count\": \"2301\", \"char_count\": \"13464\", \"text\": \"Rice, J.,\\ncharging the jury:\\nThis action was brought by Sadie G. Lemmon, the plaintiff, against Luke H. Broadwater, the defendant, to recover damages for the death of Walter J. Lemmon, her husband, alleged to have been occasioned by the negligent operation of defendant's automobile on a public highway in this county.\\nThe plaintiff claims that the defendant on the nineteenth day of August was running his automobile in a southerly direction on a part of the State Road, leading from Summit Bridge to Mt. Pleasant, a public highway in this county, and in attempting to pass a wagon going in the same direction ran his automobile to the left of the wagon and on the left hand side of the roads thereby colliding with the motorcycle on which Walter J. Lemmon was riding in a northerly direction. As a result of the collision between the automobile and the motorcycle, Walter J. Lemmon was injured and died from his injuries a few minutes later.\\nThis action is based on the alleged negligence of the defendant and the particular acts with which the plaintiff charges the defendant are: (1) That the defendant negligently ran his automobile at the place of the accident, at an unlawful and dangerous rate of speed, to wit, at the rate of thirty-five miles per hour; (2) that he attempted to pass Walter J. Lemmon, the rider of the motorcycle, at a dangerous rate of speed without stopping or attempting to stop his automobile, after he saw or could have seen Lemmon approaching in an opposite direction; (3) that he attempted to pass Lemmon, without giving \\u00a1a warning of his approach; (4) that the defendant ran his automobile at a rapid rate of speed on the left hand side of the road; (5) that contrary to the statute law of the state of Delaware, the defendant ran his automobile to the left of the center of the highway.\\nThe defendant denies that he was guilty of any of the acts of negligence as charged by the plaintiff. He denies at the time of the collision, between his automobile and the motorcycle on which Lemmon was riding, that he was in the act of passing a wagon going in the same direction. The defendant contends that at the time of the collision and immediately prior thereto he was operating his automobile at a reasonable and lawful rate of speed on the right hand side of the road, in the direction he was proceeding, and while so proceeding, Lemmon approached him on a motorcycle at an unreasonable and dangerous rate of speed, with a noticeable lack of control of the motorcycle on the part of the rider, and when the motorcycle reached a point in the road opposite the automobile, the motorcycle, either by reason of the negligence of the person operating it, or for some reason beyond the operator's control, suddenly swerved to the left and ran into the side of defendant's automobile.\\nIt is admitted that the accident occurred in August, 1918, on the State Road, a public highway in New Castle county, leading from Summit Bridge to Mt. Pleasant, that the plaintiff's husband was operating a motorcycle at the time of the accident, that the defendant owned and operated the automobile which collided with the motorcycle, and that the plaintiff is the widow of the deceased.\\nIt is not denied that Walter J. Lemmon died shortly after the accident as a result of injuries received in the collision.\\nThe basis and gist of this action is negligence. Negligence is never presumed; it must be proved, and it is a burden on the plaintiff to affirmatively show that the defendant neglected some duty which he owed to the deceased. Negligence has often been defined by this court to be the want of ordinary care; that is, the want of such care as a reasonably prudent and careful person would exercise under similar circumstances.\\nAn operator of an automobile and a traveller on a motorcycle have equal right to lawfully use public highways, and each has the right to assume and act upon the assumption that the other will exercise ordinary care and caution according to the cir cumstances, and will not negligently and carelessly expose himself to danger or negligently do injury to the other.\\nIt is the law of this state that a traveller on a public highway proceed on the right hand side of the highway and if he should meet a person travelling on the wrong side of the road, the traveller on the right side of the road has the right to assume that the other on the wrong side will do all that a reasonably prudent person, under all the circumstances, would do to avoid a collision, and if they should collide with each other, the traveller on the right side of the road would not be held responsible if he did all that a reasonably careful and prudent person would have done to prevent the accident.\\nIt is the duty of a person operating a motor vehicle on a public highway upon meeting another vehicle to reasonably turn to the right of the center of the highway so that such vehicle may pass with safety and without interference.\\nWe will call to your attention the following provisions of the statute law of this state: Section 209 [246], Rev. Code 1915, in part, provides:\\n\\\"The following rates of speed may be maintained but not exceeded: Upon any public street or highway where the buildings are of greater distance apart than one hundred feet, a rate of speed of one mile in two minutes and twenty-four seconds shall be permitted, but not exceeded, but this rate shall be reduced to one mile in five minutes in passing other vehicles; provided that nothing in this section shall permit any person to drive a motor vehicle at a greater rate of speed than is reasonable, having regard to the traffic, or so as to endanger the safety of any person or injure the property of any person.\\nIt has been held in this state that a violation of the provisions of a statute amounts to negligence in law, whether any positive or active negligence be proved or not. It is what is commonly known in law as negligence per se.\\nHowever, the defendant would not be liable for injury resulting from such negligence, unless you are satisfied from the evidence that the violation of the statute, if any, caused the accident complained of.\\nIf you should find from the evidence that the defendant at the time of the accident was operating his automobile in a manner in violation of the provisions of the statute law of this state, he would be guilty of negligence per se, and if such negligence on the part of the defendant was the proximate cause of the collision between the automobile operated by the defendant and the motorcycle operated by Walter J. Lemmon, the deceased, the defendant would be liable.\\nIf, on the other hand, you should find that the operator of the motorcycle was at the time of the accident operating his motorcycle in a manner in violation of the provisions of the law, he would be guilty of negligence per se and if such negligence on his part was operating at the time of the accident and caused or contributed thereto, his widow, the plaintiff, would not be entitled to a recovery in this action.\\nOne of the defenses relied upon by the defendant is that the collision was caused by the negligence of the plaintiff's deceased husband. As we have before stated, negligence is never presumed [it must be proved to the satisfaction of the jury by the party alleging it. There is no presumption of negligence either on the part of the deceased or on the part of the defendant, from the fact that the death of the deceased resulted from the collision between the automobile and the motorcycle. Whether negligence exists in a particular case, and whose, is a question to be determined by the jury from the evidence.\\nIf the accident was caused solely by the negligence of Walter J. Lemmon, there can be no recovery by the plaintiff, or, if the deceased was guilty of negligence which was operating at the time of the accident and contributed thereto, the plaintiff would not be entitled to a recovery even though the jury should believe that the defendant was also guilty of negligence, as the law will not measure the proportion of blame or negligence to attributed to either party.\\nAnother defense urged is that the collision between the automobile and the motorcycle, resulting in the fatal injuries to Walter J. Lemmon, was an accident, without fault of either party to the collision.\\nAn accident which could not be prevented by the exercise of ordinary care and prudence is termed an unavoidable accident, and, if you should find from the evidence that the collision in question was of such a character, the plaintiff could not recover.\\nWhen the testimony is conflicting, the jury should reconcile it, if they can; if they cannot, they should give credit to the testimony of those witnesses who, under all the circumstances, appear to the jury to be most entitled to credit, and reject such testimony as they may deem unworthy of credit. In weighing testimony, the jury may consider the appearance and manner of the witnesses, their apparent fairness or bias, degree of intelligence and their opportunities for seeing and otherwise knowing the facts and circumstances surrounding the transaction concerning which they testify, and any other element which may fairly test their truthfulness \\u00e1nd the accuracy of their testimony.\\nIf you find for the plaintiff, it sfiould be for such a stun of money as will reasonably compensate her for any and all damages that she has sustained, or may sustain by reason of the death of her husband, basing your verdict upon the number of years the deceased would probably have lived had he not been killed, and governed by what portion of the gross earnings or income the plaintiff would probably have received from the deceased if he had lived. Your verdict should be for that party in whose favor you find the preponderance or great weight of the testimony.\\nVerdict for the plaintiff.\"}"

delaware/425505.json

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+"{\"id\": \"425505\", \"name\": \"Joseph L. Marshall and James O. Marshall, trading as J. L. Marshall and J. O. Marshall vs. Maryland, Delaware, and Virginia Railway Company, a corporation of the State of Delaware\", \"name_abbreviation\": \"Marshall v. Maryland, Delaware, & Virginia Railway Co.\", \"decision_date\": \"1921-02-22\", \"docket_number\": \"Case No. 9\", \"first_page\": \"170\", \"last_page\": \"173\", \"citations\": \"31 Del. 170\", \"volume\": \"31\", \"reporter\": \"Delaware Reports\", \"court\": \"Delaware Superior Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T23:45:38.733307+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Joseph L. Marshall and James O. Marshall, trading as J. L. Marshall and J. O. Marshall vs. Maryland, Delaware, and Virginia Railway Company, a corporation of the State of Delaware.\", \"head_matter\": \"Joseph L. Marshall and James O. Marshall, trading as J. L. Marshall and J. O. Marshall vs. Maryland, Delaware, and Virginia Railway Company, a corporation of the State of Delaware.\\n1. Landlord and Tenant \\u2014 Exemption of Landlord Prom Liability for Negligence in Operation of Adjacent Railroad is Valid.\\nAn exemption of a railroad company from liability for damages from negligence in the operation of the railroad, as part of the consideration for a lease by it of buildings and structures owned by it adjacent to the railroad, is valid.\\n2. Landlord and Tenant \\u2014 Lease by Railroad Company of Buildings Adjoining Land held Insufficient, to Exempt From Liability for Fire Caused by Negligence.\\nA lease by a railroad company of buildings and structures adjoining its railroad, providing that the lessee would indemnify it from all claims and damages arising through the exercise of any right thereby granted or conferred, was ambiguous, and did not exempt it from liability for fire due to its negligence, and which destroyed the lessee\\u2019s property, as such immunity cannot rest on a presumption or strained construction.\\n(February 22, 1921.)\\nBoyce and Conrad, J. J., sitting.\\nDaniel J. Layton and James'M. Tunnell for plaintiffs.\\nCharles S. Richards for defendant.\\nSuperior Court for Sussex County,\\nOctober Term, 1920.\\nCase No. 9,\\nFebruary Term, 1920.\\nAction brought by Joseph L. Marshall and James 0. Marshall, partners, against the Maryland, Delaware & Virginia Railway Company, to recover damages for loss by fire of certain buildings and personal property therein of the plaintiffs. On demurrer to special plea to declaration. Demurrer sustained.\\nThe declaration contains three counts, and alleges substantially that, the plaintiffs at the time of the loss by fire were the owners of certain buildings, structures and personal property located contiguous or adjacent to the right of way of the defendant's railroad; that the defendant company was under duty to exercise a reasonable degree of care in the equipment and operation of its locomitives to prevent damage being caused to the plaintiffs through sparks or cinders emitted from its locomotives passing the buildings, structures and personal property of the plaintiffs; that on or about, etc., the defendant, in violation of this duty, while engaged in the operation of its railroad was negligent and careless in running one of its locomotives upon and along its railroad by and past said buildings and structures without suitable, proper and sufficient spark catchers, etc., to prevent sparks, etc., negligently set fire to the buildings and personal property therein of the plaintiffs and destroyed the same.\\nThe defendant filed a special plea to the declaration, alleging in substance that the buildings and structures which were burned, were, on, etc., and prior thereto, the property of the defendant company; that the defendant company theretofore, on, etc., entered into an agreement with the plaintiffs by which it granted to the plaintiffs the permission to maintain and'use said buildings and structures in connection with the canning business of the plaintiffs, at their own cost and expense; that in consideration of this permission the plaintiffs agreed as follows:\\n\\u201cThat in consideration of the issuance of this permit they shall and will save and keep harmless and indemnify the party of the first part from and against all claims for damages of whatsoever kind or nature arising in any manner or under any circumstances through the exercise of any right granted or conferred hereby, whether such damages be sustained by the parties of the second part or by other person or persons, corporation or corporations which seek to hold the party of the first part liable.\\u201d\\nThe plea closes with the statement that the plaintiffs were,at the time the fire occurred, occupying and in possession of the buildings and structures, under the agreement, and prays judgment, etc.\\nTo the plea the plaintiffs filed a general demurrer. Joinder in demurrer was entered.\\nThe contention of the defendant was that the buildings which were destroyed were let to the plaintiffs under the agreement between the parties which exonerated the defendant company from any liability for loss by fire through its own negligence or that of its employees, and that, therefore, the plaintiffs are not entitled to have or maintain their action. Cincinnati, etc., R. Co. v. Saulsbury, 115 Tenn. 402, 90 S. W. 624, 5 Ann. Cas. 744. The plaintiffs conceded that it is competent for a railroad company to let its buildings to persons who are to occupy the same at a point adjacent to its railroad, under an agreement that the railroad company shall not be liable for damage to the same by fire from its locomotive engines although owing to the negligence of the railroad company or its employees. 33 Cyc. 1330; Griswold v. III. Central R. R. Co., 90 Iowa, 265, 57 N. W. 843 , 24 L.R. A. 647. Yet it was urged that in seeking to relieve itself from liability for acts of its own negligence, the railroad company must exercise its right to obtain such an exemption by language which clearly expresses the fact that at the time the parties entered into the contract such was the understanding in the minds of both of them. Hartford Fire Ins. Co. v. Chic., Mil. & St. Paul R. Co., 175 U. S. 91, 20 Sup. Ct. 33, 44 L. Ed. 84. It was claimed that the right of exemption secured by the provision relied on in the plea was limited to some such damages as might result to the plaintiffs, or others, in the use of the buildings and structures from possible defects therein, or from some duty to maintain the same in repair, or from some acts on the part of the plaintiffs, or others than the defendant, arising in any manner, or under any circumstances through the exercise of any right granted or conferred by the agreement between the parties.\", \"word_count\": \"1204\", \"char_count\": \"7270\", \"text\": \"Per Curiam.\\nThe substantial question raised by the pleadings is whether the defendant company entered into an agree ment with the plaintiffs by which the company should be exempt from any liability for damage to the buildings and property which it let to the plaintiffs, although the damage should be occasioned by the negligence of the company, or its employees. An exemption from liability for damages in consequence of negligence as part of the consideration for such an agreement is valid in a case like this. The language of the provision set out in the plea, exempting the defendant company from claims for damages is obviously ambiguous. Clearly exemption from liability for negligence or from fire is not expressed in the provision. If it was the intention of the parties that the provision should secure to the defendant company the exemption claimed for it in this action, it should appear from the language of the provision fairly interpreted; for such immunity cannot rest upon a presumption or strained construction of the provision.\\nIt is the opinion of the court that the language of the provision is not sufficiently specific to relieve the defendant company from liability for damages to the said buildings and personal property therein of the plaintiffs, if occasioned by the defendant company in the manner as alleged in the declaration of the plaintiffs.\\nThe demurrer is sustained.\"}"

delaware/427807.json

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+"{\"id\": \"427807\", \"name\": \"Laurel Produce Growers Association, a corporation created by and existing under the laws of the State of Delaware, d. b. a., vs. Reese O. Gordy, p. b. r.\", \"name_abbreviation\": \"Laurel Produce Growers Ass'n v. Gordy\", \"decision_date\": \"1924-02-11\", \"docket_number\": \"No. 57,\", \"first_page\": \"405\", \"last_page\": \"406\", \"citations\": \"32 Del. 405\", \"volume\": \"32\", \"reporter\": \"Delaware Reports\", \"court\": \"Delaware Superior Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T21:23:34.925620+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Laurel Produce Growers Association, a corporation created by and existing under the laws of the State of Delaware, d. b. a., vs. Reese O. Gordy, p. b. r.\", \"head_matter\": \"Laurel Produce Growers Association, a corporation created by and existing under the laws of the State of Delaware, d. b. a., vs. Reese O. Gordy, p. b. r.\\n(February 11, 1924.)\\nHarrington and Richards, J. J., sitting.\\nJames M. Tumtell for plaintiff.\\nJohn M. Richardson for defendant.\\nSuperior Court for Sussex County,\\nFebruary Term, 1924.\\nNo. 57,\\nFebruary term, 1923.\", \"word_count\": \"132\", \"char_count\": \"763\", \"text\": \"Richards, J.\\nWe think that the book in question has been sufficiently identified as being the account book of the defendant in its transactions with the plaintiff. We, therefore, think that it is admissible against the defendant on the ground that it is an admission against interest. 2 Ency. of Ev., pp. 664, 666; Currier v. Boston & M. R. Co., 31 N. H. 209; Allen v. Coitt, 6 Hill. (N. Y.) 318.\"}"

delaware/427928.json

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+"{\"id\": \"427928\", \"name\": \"State vs. Walter L. Long\", \"name_abbreviation\": \"State v. Long\", \"decision_date\": \"1923-07-02\", \"docket_number\": \"No. 18\", \"first_page\": \"380\", \"last_page\": \"386\", \"citations\": \"32 Del. 380\", \"volume\": \"32\", \"reporter\": \"Delaware Reports\", \"court\": \"Delaware Court of Oyer and Terminer\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T21:23:34.925620+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State vs. Walter L. Long.\", \"head_matter\": \"State vs. Walter L. Long.\\n(July 2, 1923.)\\nRice, Harrington and Richards, J. J., sitting.\\nSylvester D. Townsend, Jr., Attorney-General, Robert G. Houston and Clarence A. Southerland, Deputy Attomeys-General, for the State.\\nJames M. Tunnell for defendant.\\nCourt of Oyer and Terminer, Sussex County,\\nJune Term, 1923\\nNo. 18,\\nApril Term, 1923.\", \"word_count\": \"1150\", \"char_count\": \"6299\", \"text\": \"Rice, J.:\\nThe evident purpose of the question is to show that the deceased and the defendant were together at a time when the murder could have been committed. It is not claimed that the deceased was starting or about to start to meet the defendant when the declaration sought to be proved was made by him. The statement of the deceased, therefore, neither accompanied nor characterized any act relevant to the issue. While an examination of the authorities above cited will show that declarations of a deceased person under such circumstances are some times admitted on the ground of being a part of the res gestae, as we view it, they are not admissible on that ground, (opinion of Start, C. J., in State v. Hayward, 62 Minn. 474, 65 N. W. 63); and we do not understand that the State contends that they are. Such declarations are also admitted in some cases on the ground that they are verbal acts. {State v. Hayward, Supra). If, however, the doing of an act is material, then the existence of a design or plan to do that specific act is relevant to show that the act was probably done as planned (1 Wigmore on Ev., Sec. 192; Greenleaf on Ev., Sec. 126a); and, considering the plan or design as a condition of mind, a person's own statements of a present existing state of mind when made in a natural manner, under circumstances dispelling suspicion, and containing no suggestion of sinister motives, only reflect the mental state, and are, therefore, competent to prove the condition of the mind when made; or, in other words, what such person's purpose or intention then was. A similar principle has been applied in this state in a suit for alienation of affections, to show the wife's feeling toward her husband by her declarations. Rash v. Pratt, 1 W. W. Harr. (31 Del.) 18, 111 Atl. 225. The purpose of the question is not to show that the deceased was at some time, at a particular place with a particular person because he said he was going there, \\u2014 and it clearly would not be admissible on that ground, \\u2014 but to show his purpose or intention at the time he made such statement as a circumstance tending to show that he did as he planned or intended to do. In a trial on an indictment for murder, where the defendant relies on self-defense, evidence that threats were made by the deceased person against the defendant, though not communicated to him, are admissible to show that the deceased began the affray. State v. Powell, 5 Penn. 24 (32-34). While there are certain limitations on this rule, including the limitation that in order to make such evidence admissible it must be uncertain as to which was the agressor, the principle involved would seem to be similar. For the reasons above stated our conclusion is that the declarations in this case are admissible as an exception to the hearsay rule. (Wigmore on Ev., vol. 3, Sec. 1725, 1726, 1727; Greenleaf on Ev., Sec. 126a. Supra; State v. Farnam, 82 Or. 211, 161 Pac. 417, Ann. Cas. 1918A, 318; State v. Mortensen, 26 Utah 312, 73 Pac. 562, 569 (633); See also Mutual Life Ins. Co. v. Hillam, 145 U. S. 285, 12 Sup. Ct. 909, 36 L. Ed. 706, and Commonwealth v. Trefethen, 157 Mass. 185, 31 N. E. 961, 24 L. R. A. 235. We, therefore, overrule the objection, reserving to defendant's attorney the right to move to strike out the reply of the witness, if it should not prove to be material.\\nThe witness answered the question as follows:\\n\\\"Well, he told me that she (Mrs. Ella Baull) asked him to come around to see her, and he told, her that he cquldn't come, that he was going away soon, and he told her that he had a date that night to meet a girl and a fellow on the duPont Road at about eight o'clock, and I am afraid to say whether he said the boy was from Wilmington and the girl was from Philadelphia, because I wouldn't like to say\\\".\\nHouston, Deputy Attorney-General, in endeavoring to prove that it was the habit of Elisha W. Hudson to carry a considerable some of money on his person, asked the following question:\\n\\\"Do you know his habit in relation to his money?\\\"\\nThe attorney for the defendant objected to the question, unless the State proposed to follow it up by proving that the deceased had money on him at the time of his death.\\nRice, J.:\\nOn the authority of the Supreme Court in Roberts v. State, 2 Boyce 385 (391), 79 Atl. 396, Ann. Cas. 1914 D, 1266, the Court overrules the objection.\\nA witness for the State, after testifying that the deceased had a considerable sum of money on his person in the shape of notes about three weeks before his death was asked:\\nQ. Did you see any of the denominations of those notes?\\nA. Yes, sir; I saw some one hundred dollar bills.\\nThe attorney for the defendant moved to strike out the answer to the question on the ground that proof of what money Elisha W. Hudson had on his person three weeks before he was murdered was too remote, and, therefore, not material to show how much money he had on his person at the time of the murder. On the promise of the State to show that Hudson was a sawyer in a mill, and that it was not his habit to spend much money, the motion of the defendant was overruled.\\nRice, J., in ruling on the defendant's motion, said, that it was perfectly proper for the State to prove that the deceased had money in his possession shortly before his death, and that how far back the inquiry would be permitted to go, depended upon the character and business habits of the deceased, as well as on all other circumstances which rendered it more or less probable that if he had money on his person prior to the time of his death, that he still had it at the time of his death (Kennedy v. People, 39 N. Y. 245; Commonwealth v. William, 170 Mass. 461, 50 N. E. R. 1035; Commonwealth v. Richmond, 207 Mass. 249, 93 N. E. R. 816); and that, if the State produced the additional proof promised, evidence as to the money that he had three weeks before his murder was entirely proper.\\nState vs. Lynch, 2 W. W. Harr., (32 Del.) 597.\"}"

delaware/429366.json

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+"{\"id\": \"429366\", \"name\": \"Frank Kupis vs. Wilmington Provision Company\", \"name_abbreviation\": \"Kupis v. Wilmington Provision Co.\", \"decision_date\": \"1927-03-23\", \"docket_number\": \"No. 125\", \"first_page\": \"317\", \"last_page\": \"323\", \"citations\": \"33 Del. 317\", \"volume\": \"33\", \"reporter\": \"Delaware Reports\", \"court\": \"Delaware Superior Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T22:55:51.790414+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Frank Kupis vs. Wilmington Provision Company.\", \"head_matter\": \"Frank Kupis vs. Wilmington Provision Company.\\n(March 23, 1927.)\\nRice and Harrington, J. J., sitting.\\nWilliam Prickett for appellant.\\nH. H. Ward, Jr., (of Ward, Gray and Ward) for appellee.\\nSuperior Court for New Castle County,\\nNovember Term, 1926.\\nNo. 125,\\nMarch Term, 1926.\", \"word_count\": \"1807\", \"char_count\": \"10637\", \"text\": \"Rice, J.,\\ndeivering the opinion of the court:\\nThe appellant claims (1) that when a specific permanent injury follows a period of total disability, there should be no deduction from the' period of compensation specified under Section 103, subsec. (c), for compensation paid under Section 103, subsec. (a), for total disability; (2) That under Paragraph 20 of Subsection (c) it is the amount of compensation which varies, and not the period; (3) that all compensation under Subsection (c) is subject to the maximum and minimum prescribed in the last paragraph of this subsection.\\nCode 1915, \\u00a7 3193j, at Section 103, as amended (30 Del. Laws, c. 203, \\u00a7 3; 32 Del. Laws, c. 186, \\u00a7 2), in so far as applicable to the consideration of the instant case, provides:\\n\\\"(a) For the first four hundred and seventy-five weeks of total disability, fifty per centum of the wages of the injured employee as defined by this act as amended; but the compensation shall not be more than fifteen dollars per week nor less than five dollars per week, and shall not exceed in the aggregate the sum of four thousand dollars; provided, that if at the time of injury, the employee receives wages of less than five dollars per week, then he shall receive the full amount of such wages per week as compensation. Nothing in this paragraph (a) shall require the payment of compensation after disability shall cease. Should partial disability be followed by total disability, the period of four hundred and seventy-five weeks mentioned in this paragraph (a) of this section shall be reduced by the number of weeks during which compensation was paid for such partial disability.\\n\\\"(b) For disability for work partial in character (except the particular cases mentioned in the next succeeding subsection [c] of this section), fifty per centum of the difference between the wages received by the injured employee before the injury and the earning power of the employee thereafter, but such compensation shall not be more than fifteen dollars per week. This compensation shall be paid during the period of such partial disability for work; not, however, beyond two hundred and eighty-five weeks. Should total disability for work be followed by partial disability for work, the period for two hundred and eighty-five weeks mentioned in this subsection (b) shall be reduced by the number of weeks during which compensation was paid for such total disability _\\n\\\"(c) For all permanent injuries of the following classes, the compensation, regardless of the earning power of such injured employee after such injury, shall be as follows:\\n\\\"For the loss of a leg, fifty per centum of wages during one hundred and ninety-four weeks.\\n\\\"In all other cases in this class, or when the usefulness of a member or any physical function is permanently impaired, the compensation shall bear such relation to the amount stated in the above schedule as the disabilities bear to those produced by the injuries named in the schedule.\\n\\\"This compensation shall not be more than fifteen dollars per week, nor less than five dollars per week; provided, that, if at the time of injury the employee receives wages of less than five dollars per week, then he shall receive the full amount of such wages per week as compensation.\\\"\\nWe believe that the award of the Industrial Accident Board allowing a deduction from the period of compensation specified under Section 103, Subsec. (c), for compensation paid under Subsection (a) for temporary total disability, is not within the provisions or intendment of the Delaware Workmen's Compensation Law. The language of Subsection (c) does not specifically provide for such a reduction in cases coming within the schedule set forth in this section, neither is there any general or special provision for a reduction in such cases, in the statute. The employer, the appellee, argues that subsections (a), (b), and (d) all contain provisions for reducing the period of compensation payable for an injury under one'subsection by the number of weeks of compensation paid for the same injury under another subsection, and, there fore, the general policy of the Workmen's Compensation Law providing for such a reduction is established, and should apply to cases coming under the provisions of Subsection (c). This argument ordinarily would be entitled to great consideration in determining the general policy of the law and the intendment of the Legislature, but we believe it to be without much force under the present circumstances. We believe greater weight should be attached to the fact that while the deduction provision appears in all subsections dealing with disability for work, either total or partial, it is omitted from subsection (c), the only section dealing with compensation for the loss or impairment of an organ or member of the body. It is reasonable to believe, if it was the intention of the Legislature that deduction should be made in the cases coming within Subsection (c), the same or like provisions appearing in Subsections (a), (b), and (d) would have been written into Subsection (c).\\nThe Industrial Accident Board, in deciding the case, relied largely upon the decision of the board in the case of Pullman Co. v. Riley, 1 W. W. Harr. (31 Del.) 440, 114 A. 920, which decision, when the case was appealed to the court, was approved. Pullman Car Lines v. Riley, 1 W. W. Harr. 440, 114 A. 920. The facts in the Riley Case differ so greatly from the facts in the present case that we believe it is not necessary to approve or disapprove that decision. The board, in that case, found as a fact that the employee suffered an injury resulting in the loss of a leg, and at the same time suffered other injuries resulting in probable permanent total disability for work. In the present case the employee suffered only one injury causing temporary total disability for work, and eventually resulting in permanent impairment of the use of his leg.\\nThe second cause of appeal is from the action of the board in proportioning the period of compensation to the injury, and not proportioning the amount of compensation. The board found that the usefulness of the leg of the employee had been permanently impaired to the extent of 35 per cent., and awarded compensation at 50 per cent, of wages for 68 weeks (35 per cent, of 194 weeks.).\\nParagraph 20 of Subsection (c) provides:\\n' 'In all other cases in this class, or when the usefulness of a member or any physical function is permanently impaired, the compensation shall bear such relation to the amount stated in the above schedule as the disabilities bear to those produced by the injuries named in the schedule.\\\"\\nThe cases decided in other jurisdictions under statutes containing language somewhat similar to that found in the Delaware statute appear to be somewhat in conflict on the question now before us. In some jurisdictions, it is argued by the employer, it is held that the statute provides for an apportionment of the period of compensation. Spurgeon, Appellee, v. Iowa & Missouri Granite Works, et al., Appellants, 196 Iowa 1268, 194 N. W. 286; Casey-Hedges v. Lynch, 147 Tenn. 173, 245 S. W. 522.\\nThe appellant cites the following cases from other jurisdictions which it is claimed decide the opposite: Banister v. Kriger, 84 N. J. Law 30, 85 A. 1027; De Zeng v. Pressey, 86 N. J. Law 469, 92 A. 278; Maziarski v. Ohl & Co., 86 N. J. Law 692, 93 A. 110.\\nHowever, we do not find the decisions from other states of very much assistance upon this question, for the reason that while the general provisions of the statutes are the same,' yet in many features and details they differ. We are of the opinion that when the Legislature used the word \\\"amount\\\" in Subsection (c), Para-. graph 20, amount of compensation was meant, and we see no reason to believe that period of compensation was intended. The Legislature seemed to have exercised great care in using the expression \\\"the period\\\" or \\\"number of weeks\\\" when it wished to denote length of time, as in Subsection (a), Subsection (b), Subsection (c), Paragraphs 7, 13, 19, and Subsection (d); and to denote money to be paid as compensation by the use of the word \\\"amount,\\\" as in Subsection {c), Paragraphs 14 and 20. We are of the opinion that the board was in error when it proportioned the period of compensation, and are of the opinion that it should have proportioned the amount of compensation.\\nIt is contended by the employer that if the amount of compensation is to be proportioned, and not the period of compensation, then the compensation should be $4.55 per week, which is 35 per cent. {Subsection [c] Par. 20) of 50 per cent, of wages {Sub section [c] par. 5), the weekly wage being $26. We are of the opinion that this contention cannot be sustained under the provisions of the last paragraph of Subsection (c), and that the minimum of compensation is $5 per week, unless the employee received weekly wages less than that sum per week.\\nThe last paragraph of Subsection (c) provides:\\n\\\"This compensation shall not be more than fifteen dollars per week, nor less than five dollars per week; provided, that, if at the time of injury, the employee receives wages of less than five dollars per week, then he shall receive the full amount of such wages per week as compensation.\\\"\\nThe proviso in this paragraph has reference only to compensation where the wages are less than $5 per week, and qualifies the minimum mentioned in such cases only, and does not otherwise qualify the minimum compensation of $5 per week.\\nWe are of the opinion that we are not in possession of sufficierit facts in the case to make an award for compensation in conformity with our conclusions on the questions of law raised, as it . does not appear from the findings of the board the date of determination of the temporary total disability, from which date, of course, under our holding, the compensation became payable for the permanent impairment of the use of one leg.\\nFor the reasons stated, it is ordered that the case be remanded to the Industrial Accident Board for additional findings of fact, and an award by the board in conformity with our determination of the law. It is further ordered and decreed that a certified copy of this order be sent to the Industrial Accident Board. The costs of the proceeding in this court are taxed against the appellee.\"}"

delaware/432359.json

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+"{\"id\": \"432359\", \"name\": \"Metropolitan Life Insurance Company, d. b. a., v. Milton Landsman, p. b. r\", \"name_abbreviation\": \"Metropolitan Life Insurance v. Landsman\", \"decision_date\": \"1933-02-10\", \"docket_number\": \"No. 313\", \"first_page\": \"384\", \"last_page\": \"394\", \"citations\": \"35 Del. 384\", \"volume\": \"35\", \"reporter\": \"Delaware Reports\", \"court\": \"Delaware Superior Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T19:15:37.960226+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Metropolitan Life Insurance Company, d. b. a., v. Milton Landsman, p. b. r.\", \"head_matter\": \"Metropolitan Life Insurance Company, d. b. a., v. Milton Landsman, p. b. r.\\n(February 10, 1933.)\\nPennewill, C. J., Harrington and Richards, J. J., sitting.\\nPaul Leahy for Metropolitan Life Insurance Company.\\nCharles F. Curley and James Malloy for Milton Landsman.\\nSuperior Court for New Castle County,\\nNo. 313,\\nSep- \\u25a0 tember Term, 1932.\", \"word_count\": \"3615\", \"char_count\": \"20577\", \"text\": \"Pennewill, C. J.,\\ndelivering the opinion of the Court:\\nObviously, under the pleadings, the only question the Court must determine is whether the injury complained of was caused by violent and accidental means.\\nThe defendant correctly states' in his brief that the clause contained in the policy \\\"caused directly and independently of all other causes by violent and accidental means\\\" has received two distinct and opposed interpretations from the courts of this country.\\nOne line of decisions hold that any injury that is accidental is covered by the clause. The other draws a distinction between an accidental injury and an injury caused by accidental means. Under the former holdings the injury here complained of would be covered by the policy; under the latter it would not.\\nThe plaintiff contends, however, that the weight of authority and the better reasoned cases support his contention that the policy in issue indemnified him against the injury he received.\\nOn the other hand, the defendant claims that the weight of well considered cases, as well as of reason, supports its contention that there is a distinction between an injury caused by accident and one caused by accidental means.\\nThe distinction has been expressed by some courts in general language, as follows:\\nAn injury is caused by accident when the result is accidental and by accidental means when the means that caused the injury are accidental. It must be admitted that such distinction does not clarify the law very much and some courts have frankly said there is no distinction between an injury caused by accident and one caused by accidental means. But no matter how technical the distinction may seem' to be, many courts have recognized and acted upon it. Perhaps the difference in judicial decisions may be shown by a case similar in principle to the present one, where the plaintiff in voluntarily attempting to perform an act in the usual course of his occupation over- . taxed his strength and imposed upon the vital organs a burden greater than they could bear. Such was a leading . case cited by the defendant. Rock v. Travelers' Ins. Co., 172 Cal. 462, 156 P. 1029, 1030, L. R. A. 1916E, 1197.\\nIn that case the plaintiff undertook to carry a heavy casket down a flight of stairs. The entire operation was carried out precisely in the manner intended and designed by the plaintiff, but the exertion he assumed was beyond \\u2022 his strength and the result was a dilation of the heart and death. On these facts, the Court held, it could not be said the death was caused by bodily injuries affected through accidental means. In that case the Court said:\\n\\\"A differentiation is made, therefore, between the result to the insured and the means which is the operative cause in producing this result. It is not enough that death or injury should be unexpected or unforeseen, but there must be some element of unexpectedness in the preceding act or occurrence which leads to the injury or death. 'The question, in the sense of this policy, is not whether death was the result of accident in the sense that it was a death which was not foreseen or anticipated. That is not the question. The question is, in the words of this policy, whether the means by which the injury was caused were accidental means. The death being accidental in the sense in which I have mentioned, and the means which led to the death as accidental, are, to my mind, two quite different things. A person may do certain acts, the result of which acts may produce unforeseen consequences, and may produce what is commonly called accidental death, but the means are exactly what the man intended to use, and did use, and was prepared to use. The means were not accidental, but the result might be accidental.' \\\"\\nThe distinction the Court sought to make in that case, between accident and accidental means, is made clearer by the following words in the opinion:\\n\\\"In carrying it [the casket] down he did not slip or stumble, nor did the casket fall against him.\\\"\\nThe necessary inference from these words is, that if the injury had been caused by the plaintiff's slipping or stumbling, there would have been a cause preceding the injury which the plaintiff could neither anticipate or control, and in such case the injury would have been caused by accidental means. And this is conceded by the defendant to be the law, because it is said in its brief:\\n\\\"For example, if the insured slipped, if the bag he was carrying fell from his shoulder, and he attempted to catch it, if he wrenched or strained his body and then fell \\u2014 any or all of these events would, under this particular policy, be acts which were beyond his control, and the injury would, of course, be the result of accidental means.\\\"\\nThe defendant has cited many cases and quoted at considerable length from some of them but they are all to the same effect as the Rock Case to which we have particularly referred.\\nSome of the other cases cited by the defendant are: Bennetts v. Occidental L. I. Co., 39 Cal. App. 384, 178 P. 964; Schmid v. Indiana Travelers' Acc. Ass'n, 42 Ind. App. 483, 85 N. E. 1032, 1036; Feder, et al., v. Iowa State Trav. Men's Ass'n, 107 Iowa 538, 78 N. W. 252, 253, 43 L. R. A. 693, 70 Am. St. Rep. 212; Shanberg v. Fidelity & Cas. Co. (C. C. A.), 158 F. 1, 5, 19 L. R. A. (N. S.) 1206; Fane v. Nat. Ass'n Ry. Mail Clerks, 197 App. Div. 145, 188 N. Y. S. 222, 223; Seipel v. Eq. Life Ins. Co. (C. C. A.), 59 F. (2d) 544.\\nIn order to make the distinction which many courts have'made between accident and accidental means, as clear as possible, we will quote from a few of the cases cited above.\\nIn the Schmid Case, it was said:\\n\\\"As to what constitutes an accident, the reported cases are not all in accord. But our own decisions, with the weight of the decisions of other courts, we think hold that, where an injury occurs as the direct result of intentional acts, it is not produced by accidental means.\\\"\\nIn the case of Feder, et al., v. Iowa State Trav. Men's Ass'n, the Court said:\\n\\\"Although a result may not be designed, foreseen, or expected, yet, if it be the natural and direct effect of acts voluntarily done, or of conditions voluntarily assumed, it cannot be said to be accidental. The evidence shows that the cause was the ruptured artery; but that was not accidental, if it was the natural result of an act voluntarily done by Feder. That he did anything but what he intended to do, in attempting to close the shutters, is not shown nor claimed. It is not even shown that he made any unusual exertion in what he did.\\\"\\nIn the Shanberg Case, it was said:\\n\\\"It would not help the matter to call. the injury itself \\u2014 that is, the rupture of the heart \\u2014 an accident. That was the result and not the means through which it was effected. Carrying the door, or, after putting it down, the act of filling his lungs with air by drawing a long breath, was the means by which the injury was caused. Both were done by the assured voluntarily and in an ordinary way with no unforeseen, accidental, or involuntary movement of the body whatever. There was no stumbling, slipping, or falling; there was nothing accidental in his movements any more than there would be in walking on the street, or passing down the steps of his house. Had the assured, while assisting in carrying the door, lost his balance and fallen and struck upon some unforeseen object, or slipped on the ice, his death might be said to have resulted from violent or accidental means.\\\"\\nIn the Fane Case, the Court said:\\n\\\"It is undoubtedly true that the act of lifting the mail bag produced an unforeseen consequence, and the consequence might commonly be called an accidental injury, and the result of lifting the bag might be accidental; but the wording of the policy is, 'through accidental means.' The means which the plaintiff used to place the bag were exactly those which he intended to use, and precisely those he had used on many other occasions. It cannot be said that the means were accidental. The most that can be said is that the result was accidental. He was doing what he meant to do, and doing it in the way he meant to do it. An unexpected result followed, but that result did not follow through accidental means. He was injured from doing what he intended to do and doing it in exactly the way he intended to do it, and the rupture was not the result of accidental means. This conclusion is sustained by many decisions.\\\"\\nPerhaps the latest case on the subject is the Seipel Case in which the plaintiff was injured in lifting a very heavy wheel. The Court in that case held that the injury received was not the result of external, violent and accidental means.\\nIt would be unprofitable to quote from other cases, which are very numerous but to the same effect.\\nThere are, however, cases, and well considered ones, which recognize no distinction between accident and accidental means.\\nThe plaintiff cites a leading case on the subject and one that is often mentioned, United States Mutual Acc. Ass'n v. Barry, 131 U. S. 100, 9 S. Ct. 755, 762, 33 L. Ed. 60. The plaintiff claims that this case is an authority that strongly supports his contention, but when the case is carefully considered, it does not seem to differ much in principle from those relied on by the defendant. .\\n!' We quote at some length from the opinion of the . Appellate Court:\\n\\u2022 \\\"It is further urged that\\\" there was no evidence to support the verdict, because no accident was showrt!' We do not concur in this view. The two companions of the deceased jumped from the same platform, at the' same time' and place, and alighted safely. It must be presumed', not only that the deceased intended to alight safely, but thought that he would. The jury were, on all the evidence, at liberty to say that it was an accident that he did not.\\\"\\nContinuing the Court said:\\n\\\"The court properly instructed them [the jury] that the jumping off .the platform was the means by which the injury, if any was sustained, was caused; that the question was whether there was anything accidental, unforeseen, involuntary, unexpected, in the act of jumping, from the time the deceased left the platform until he alighted on the ground; that the term 'accidental' was used in the policy in its ordinary, popular sense, as meaning 'happening- by chance,- unexpectedly taking place, not according to the. usual course of things, or not as expected'; that if a result is. such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way,. it cannot be called a result effected by accidental means; but that if, in the act which precedes- the injury, something unforeseen, _ unexpected, unusual, occurs which produces the injury, \\u2022then the injury has resulted through accidental means.\\\"\\nIt appears, therefore, that the Court distinctly recog- . nized the distinction between an injury caused by accident and one caused by accidental means, as expressed in the cases cited by the defendant, the only difference being in the application of the principle, which was left to the jury.\\nAnother leading case relied on by the plaintiff is Horsfall v. Pac. Mutual Life Ins. Co., 32 Wash. 132, 72 P. 1028, 1029, 63 L. R. A. 425, 98 Am. St. Rep. 846.\\nIn that case the insurance was against the effect of. bodily injuries \\\"caused solely by external, violent and accidental means.\\\"\\nAfter defining an injury by accident in the usual terms, the Court said:\\n\\\"So a strain of.the muscles of the back, caused by lifting heavy weights in the course of business, is injury by accident or violence 'occasioned by external or material causes operating on the person of the insured.' The evidence shows conclusively that the deceased was a strong and apparently healthy man of 58 years, who had never been sick, and who was accustomed to lift from 200 to 250 pounds without difficulty; that immediately after he had made the lift of one end of the bar, weighing from 350 to 400 pounds, he became sick and 'deathly pale.' The exertion had caused a violent dilation of the heart. The result certainly was unexpected. It did. not take place according to the usual course, of things. If, instead of a sprain of the muscles, of the heart, the deceased had sprained the muscles of his back, or arm, or ankle, it certainly could not .have been reasonably claimed that the result was not due to accident, r We. think the evidence shows an accident within the meaning of the policy.\\\"\\nEven this case is not .wholly inconsistent with the defendant's cases which hold that the result may be accidental when the means that caused the result were not accidental.\\nAnother cas\\u00e9, the importance and pertinency of which is stressed by the plaintiff is Young v. Railway Mail Ass'n, 126 Mo. App. 325, 103 S. W. 557, 562, in which the Court used the following language:\\n\\\"Accident assurance companies do business mostly with the .common people, and the term 'accident,' as used in these policies, should be construed most strongly against the companies, and be defined according to the ordinary and usual understanding of its signification. 'Any unusual and unexpected event attending the performance of a usual and necessary act,' whether the act be performed by the party injured or by another, is ordinarily and usually understood to be an event which happened by accident: In the foregoing cases it seems to us a too strict and illiberal'definition of the term was adhered to. At any rate, they are not reconcilable with the general trend of the best considered American cases, which hold that accidental means are those which produce effects which are not the natural and probable consequence of the act. 'An effect which is not the natural or probable consequence of the means which produced it, an effect which does not ordinarily follow and cannot be reasonably anticipated from the use of such means, an effect which the actor did not intend to produce and which he cannot be charged with the design of producing, is produced by accidental means.' \\\"\\nIn that case the injury was received when the insured was assisting in lifting or pulling a sack of mail into the car.\\nThe Court concluded that the question, whether or not the plaintiff's injury was caused by \\\"external, violent and accidental means\\\" was for the jury.\\nThe Court in the ease of Lickleider v. Iowa State Trav. Men's Ass'n, 184 Iowa 423, 166 N. W. 363, 366, 168 N. W. 884, 3 A. L. R. 1295, comments as follows on the rule the defendant contends for:\\n\\\"There is, however, another alleged definition which has had a degree of judicial sanction which ought not to be passed without notice. According to this definition, if correctly interpreted by counsel for the defense, an injury happening to the insured through his own voluntary act is not an accident, nor is his hurt to be attributed to accidental means \\u2014 a proposition which is wholly at variance with every statement of the true rule as illustrated in the numerous authorities above cited. It may be, and it is true, that if the insured does a voluntary act, the natural, usual, and to be expected result of which is to bring injury upon himself, then a death so occurring is not an accident in any sense of the word, legal or colloquial, and it is only when thus limited that the rule so stated has any proper application. To say that the deceased in the case at bar did just what he attempted and intended to do, that is, he attempted to remove and did remove the tire from the wheel, and therefore there was no accident or accidental means producing his injury, is to beg the whole question and to ignore the well-established meaning of words.\\\"\\nOther cases cited by plaintiff below include: Pervangher v. Union Cas. & Sur. Co., 85 Miss. 31, 37 So. 461; Budde v. Nat. Trav. Ben. Ass'n, 184 Iowa 1219, 169 N. W. 767; Pledger v. Bus. Men's Ass'n (Tex. Com. App.), 228 S. W. 110; Patterson v. Ocean Acc. & Guar. Corp., 25 App. D. C. 46; Standard Life & Accident Ins. Co. v. Schmaltz, 66 Ark. 588, 53 S. W. 49, 74 Am. St. Rep. 112; Summers v. Mutual Aid Ass'n, 84 Mo. App. 605; Martin v. Trav. Ins. Co., 1 Fort. & F. 505, 175 Eng. Rep. 828.\\nThere are' very many other cases that might be cited on either side of the question here involved, and it is impossible to say on which side is the greater number. We have quoted at length from a few- on each side that seem to have been well considered, for the purpose of assisting the Court in determining whether the injury received by the plaintiff was caused by accidental means. This has been a perplexing question for many Courts and given rise to much refined and technical reasoning. Perhaps the difficulty has been as much in the application of the rule as in its recognition.\\nCourts that find no distinction between an injury caused by accident and one caused by accidental means, concede that if the insured does a voluntary act, the natural and usual result of which is to bring injury upon himself, it is not an accident because it might have been expected. But Courts that recognize the distinction go a step further and say that although a result may not be foreseen or expected, yet if it be the direct effect of an act voluntarily done, or of conditions voluntarily assumed, it cannot be said to be accidental. These cases make a difference between the result and the means that cause the result or injury. The injury, they say, may be unexpected, and in that sense accidental, but the means that caused it are not accidental because they were the voluntary and usual means employed by the insured to accomplish the act he wished and intended to accomplish. In the language of the Court in the Barry Case, supra:\\n\\\" If a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but that if, in the act which precedes the injury, something unforeseen, unexpected, unusual, occurs which produces the injury, then the injury has resulted through accidental means.\\\"\\nThis is taken from one of the plaintiff's cases. And the distinction recognized in the Barry Case is illustrated in some other cases in this way: If the person who is lifting or carrying a load falls, in the effort to carry it, and the injury is produced by the fall, it is caused by accidental means, it being an unexpected occurrence preceding the injury.\\nApplying the rules we have mentioned, and attempted to describe to the case in hand, what should be the result? The plaintiff, at the time of his injury, was voluntarily carrying, or attempting to carry, a sack of potatoes on his shoulder, in the usual way, no doubt in the way he had often carried such a load before and in the way he wanted to carry it. The injury he received was unexpected and un foreseen. It was, therefore, accidental in a way. But while the injury or result was accidental because unexpected, can it be said that the means which caused the injury were accidental? We must distinguish, if there is a difference, between the result and the means that produced it. What were the means in the case before us? Nothing more nor less than carrying, or attempting to carry, the sack of potatoes on the shoulder. Surely then, there was nothing' accidental in the means which the plaintiff employed, as there would have been if he had unexpectedly fallen with his burden and the fall had been the means of his injury.\\nWhile we agree with the language used by the Court in the Young Case, supra, that these policies should be construed strongly against the companies that issue them, and the terms employed therein be defined according to the ordinary and usual understanding of their signification ; and while we realize that some of such terms, including \\\"accidental means,\\\" are impossible of understanding by the persons with whom the companies deal, still the policy and its acceptance, constitute a contract which the Courts must construe in accordance with established rules of law.\\nThe conclusion of the Court is that the injury received by the plaintiff was not caused by violent and accidental means within the meaning of the policy sued on. No cause of action, therefore, is shown and defendant's demurrer must be sustained.\"}"

delaware/443457.json

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+"{\"id\": \"443457\", \"name\": \"Hyland P. George and Richard M. Appleby, trading as George & Lynch, plaintiffs, v. Unemployment Compensation Commission of Delaware, defendant\", \"name_abbreviation\": \"George v. Unemployment Compensation Commission\", \"decision_date\": \"1945-01-30\", \"docket_number\": \"\", \"first_page\": \"558\", \"last_page\": \"566\", \"citations\": \"42 Del. 558\", \"volume\": \"42\", \"reporter\": \"Delaware Reports\", \"court\": \"Delaware Superior Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T22:26:55.588544+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hyland P. George and Richard M. Appleby, trading as George & Lynch, plaintiffs, v. Unemployment Compensation Commission of Delaware, defendant.\", \"head_matter\": \"Hyland P. George and Richard M. Appleby, trading as George & Lynch, plaintiffs, v. Unemployment Compensation Commission of Delaware, defendant.\\n(January 30, 1945.)\\nLayton, C. J., Rodney and Speakman, J. J., sitting.\\nWilliam S. Potter and Collins J. Seitz (of Southerland, Berl and Potter) for the plaintiffs.\\nCaleb B. Layton, 3d, for the' defendant.\\nSuperior Court for New Castle County, 149,\\nMay Term, 1944.\", \"word_count\": \"2527\", \"char_count\": \"15116\", \"text\": \"Layton, Chief Justice.\\nThis case is before the Court under the provisions of Sec. 6 (i) of the Unemployment Compensation Law. The facts are not in dispute.\\nThe sole question is whether the plaintiffs, as employers, in making contributions to the Unemployment Compensation fund, were entitled after January 1, 1942 to a percentage rate lower than the standard rate of 2.7 per annum with respect to employment, under Sec. 7 (c) (1) (A) of the law.\\nThe Act became effective on April 30,1937. In a prefatory declaration of state public policy it was declared that social security \\\"can be accomplished by encouraging employers to provide more stable employment and by the systematic accumulation of funds during periods of employment from which benefits may be paid for periods of unemployment, thus maintaining purchasing power and limiting the serious social consequences of poor relief assistance.\\\"\\nBy Sec. 2(g) \\\" 'Employing unit' means any individual or type of organization, including any partnership, association, trust estate, joint stock company, insurance company, or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, or the legal representative of a deceased person, which has or subsquent to January 1, 1936, had in its employ one or more individuals performing services for it within this State.\\\" 43 Del. Laws, c. 281, \\u00a7 2.\\nBy Sec. 2(h) (1) \\\"employer\\\" means \\\"Any employing unit which in each of twenty different weeks within either . the current or the preceding calendar year (whether or not such weeks are or were consecutive) has or had in employment, one or more individuals (irrespective of whether the same individuals are or were employed in each such week).\\\"\\nBy Sec. 8 (b) an \\\"employing unit\\\" shall cease to be an \\\"employer\\\" subject to the Act \\\"only as of the 1st day of January of any calendar year, only if it files with the commission, prior to the 5th day of January of such year, a written application for termination of coverage, and the commission finds that there were no twenty (20) different days, each day being in a different week within the preceding calendar year, within which such employing unit employed one (1) or more individuals in employment subject to this Act.\\\"\\nBy Sec. 2(d) \\\"Contributions\\\" means the money payments to the State Unemployment Compensation fund required by the Act; and the provisions which are of immediate concern are found under the general heading of \\\"contributions,\\\" as follows:\\nSec. 7 (a) (1) \\\"On and after January 1, 1937, contributions shall accrue and become payable by each employer for each calendar year in which he is subject to this act, with respect to wages for employment. Such contributions shall become due and be paid by each employer to the commission for the fund in accordance with such regulations as the commission may prescribe, and shall not be deducted, in whole or in part, from the wages of individuals in such employer's employ.\\\"\\n\\\"(b) (1) Each employer shall pay contributions equal to the following percentages of wages payable by him with respect to employment.\\\"\\n\\\" (A) 1.8 per centum with respect to employment occurring during the calendar year 1937.\\\"\\n\\\"(B) 2.7 per centum with respect to employment occurring during the calendar years 1938, 1939, and 1940.\\\"\\n\\\"(2) Each employer shall pay contributions equal to 2.7 per centum of wages paid by him during the calendar year 1941, and during each calendar year thereafter, with respect to employment occurring after December 31, 1940, except as may be otherwise prescribed in subsection (c) of this section.\\\"\\n\\\"Future Bates Based on Benefit Experience.\\\"\\n\\\"(c) (1) (A) The' Standard rate of contributions payable by each employer shall be 2.7 per centum.\\n\\\"(B) No employer's rate shall be reduced below the standard rate for any calendar year unless and until his account could have been chargeable with benefit wages throughout the thirty-six consecutive calendar months ending on December 31 of the preceding calendar year.\\\"\\nWhen the Act went into effect Hyland P. George and John P. Lynch, trading under the firm name of George & Lynch, were engaged in a general contracting business, became subject to its provisions, and began making contributions to the compensation fund at the standard rate of 2.7 per centum of the wages paid to its employees. On February 22, 1940, John P. Lynch died. The surviving partner purchased from his deceased partner's executor all of the interest of the decedent in the firm's assets, and continued in the same business, under the same trade name, using the same equipment, office, executives and substantially the same labor personnel. In the office of the Commission one folder, or jacket, contains all of the \\\"George & Lynch\\\" reports. In the folder was a letter dated April 15, 1940, by which the Commission was advised of the death of Mr. Lynch, and that the surviving partner, Hyland P. George, was continuing the business temporarily as an individual under the trade name of George & Lynch. No application in writing for termination of coverage under Sec. 8 (b) was made.\\nSubsequent to the death, the Commission, on March 31, 1940, that being the end of the calendar quarter year, caused a blue line to be drawn under the \\\"George & Lynch\\\" record to indicate that, owing to the dissolution of the firm by the death, the account was terminated for experience rating purposes, in result that the account of the survivor although continuing to operate the business under the same trade name would not become entitled -to apply for, a reduction of the rate of 2.7 per centum except upon a showing of wages paid in respect of employment for thirty-six consecutive months subsequent to the death, that is, not until January 1, 1944, rather than on January 1, 1942.\\nThe Commission, after formal hearing, ruled that the plaintiffs were not entitled to a lower rate for contributions paid during the years 1942 and 1943, on the ground that the firm of George & Lynch ceased to exist as a legal entity on the death of Mr. Lynch, and it was no longer possible for the firm's account to be chargeable with benefit wages; wherefore, the account could not have been chargeable with benefit wages throughout the thirty-six consecutive calendar months ending on December 31 of the preceding year, under the provisions of Sec. 7 (c) (1) (B) of the Act.\\nThe plaintiffs contend that th,e Commission's interpretation of the language of the paragraph is discriminatory, and highly penal as against partnerships and in favor .of corporations, and leads to the unjust result that the account of George & Lynch, chargeable as it was for upwards of two years at 2.7 per centum of the wages paid by the firm, is denied a lower rate because of the involuntary change in the type of organization occasioned by the death of the partner although the business was continued in precisely the same way. It is insisted that, having regard for the language of the declaration of state policy, and the statutory definitions of \\\"employing unit\\\" and \\\"employer,\\\" the Legislature manifested no particular interest in the type of legal entity assumed by an employing unit, and that the statute is not concerned with legal niceties with respect to the type or form of organization assumed by an employer so long as there is a substantial continuity of interest and identification in the employer; and attention is called to the fact that no application in writing for termination of coverage was made under Sec. 8 (b), so that \\\"George & Lynch\\\" continued to be an employer under the law.\\nThe argument is found unacceptable for the reason that, upon the death of the partner, the firm of George & Lynch ceased to exist, and there remained no real continuity of interest and identification with respect to the individual carrying on the business.\\nApart from the conception of a partnership as a legal entity distinct from and independent of the persons composing it, a partnership is a relation or status resulting from an agreement between persons whereby they unite their money, effects, credit, labor, skill and experience, or some or all of them, in the prosecution of a lawful business. The success of a business partnership is, in general, dependent upon the attributes of the partners; and its' ability to maintain employment of labor is largely dependent upon its success in business. What contribution the deceased partner made to the success of the firm of George & Lynch by way of skill and experience and credit and reputation in the business and financial world does not appear, but we do not know and cannot assume that he was not a material factor in the successful prosecution of the enterprise and in the maintenance of employment by the firm. These considera tians serve to show that upon the death of the partner, notwithstanding the continued use of the trade name, which amounts to nothing, and the employment of the same office, executives, equipment and personnel, the successor was another and different employer with a distinct individuality and distinguishable characteristics, whose ability to maintain employment was for the future to determine. There was a complete change of identity and interest. All that remained of uninterrupted sequence was continuity of business, not of ownership or liability. New Colonial Ice Co. v. Helvering, 292 U. S. 435, 54 S. Ct. 788, 78 L. Ed. 1348. If, for example, the firm of George & Lynch had sold the entire business to a stranger who, without break in operation, continued to carry on the enterprise with the same equipment and personnel, it would hardly be arguable that the benefit experience built up by the partnership was in the nature of an asset transferable to a successor whose ability to maintain a satisfactory employment record was undemonstrated. Again, let it be supposed that the firm had a poor experience record of employment with a rate of three per centum or more, which is possible under the law, and upon the death of, the partner, the survivor continued to operate as before, it would be a harsh ruling to fasten the penalty on the successor.\\nThere is no discrimination in a legal sense against partnerships and in favor of corporations. A partnership as a form of business association, has its advantages and disadvantages. If persons choose to associate themselves as partners it does not follow that a law is discriminatory because of disadvantages inherent in the form of association.\\nThe language of . the paragraph is plain and its meaning is clear. The words \\\"his account\\\" refer necessarily to a definite employer and his experience in maintaining employment. The general language of the preamble to the Act and the statutory definitions of \\\"employing unit\\\" and \\\"employer\\\" cast no doubt upon the legislative intent. The provisions of Section 8 (b) with relation to termination of coverage are entirely unrelated to the question. The word \\\"successor,\\\" as used in Sec. 2(g) of the Act, imports a devolution of property by statutory succession. Claim of Turano, 260 App. Div. 971, 23 N. Y. S. 2d 213, affirmed Turano v. Wightman, 286 N. Y. 574, 35 N. E. 2d 925.\\nIt may be supposed that the establishment of the standard rate of 2.7 per centum of wages paid with respect to employment and the precise limitation placed on future rates based on benefit experience were the results of careful study to the end that the unemployment compensation fund would be adequate in all reasonably foreseeable circumstances, and that any alteration of the law which may operate to decrease the rate and, in consequence, the fund will have like careful consideration. The hard and unescapable fact is. that the Legislature has made no provision for a transfer of benefit experience with respect to employment from a predecessor to a successor employer except as suggested by Sec. 7(c) (5) which has relation to mergers, consolidations or other forms of reorganization. Sec. 11, Ch. 207, Vol. 44, Del. Laws, approved March 12, 1943. With this provision we are not here concerned. Hardship in some degree may be admitted, but the Act is a taxing act, and under such statutes cases of individual hardship abound. What the plaintiffs ask is that they be relieved from the application of the 2.7 per centum rate and allowed to come within a lower rate. The analogy of exemption from taxation is suggested. The burden is always on the claimant to establish his right to an exemption by bringing himself clearly within the terms of the grant. As said in New Colonial Ice Co. v. Helvering, supra [292 U. S. 435, 54 S. Ct. 790], \\\"Whether and to what extent deductions shall be allowed depends upon legislative grace; and only as there is clear provision therefor can any particular deduction be allowed.\\\" There is no ambiguity in the language of the Act, and no reason to indulge in construction. The Court may not speak when the Legislature has declared its will. Benefit experience in respect of employment acquired by a partnership is not transferable to a successor to the enterprise.\\nThe authorities are few. The plaintiffs cite as their only authority a ruling by the Unemployment Compensation Commission of New Jersey in 1942; and it is stated in their brief that the Commission in that State ruled in 1943 that the present firm of George & Lynch was entitled under the New Jersey law to the experience rating of its predecessor.\\nTo the contrary, and in accord with the ruling of the Commission in this State, is a ruling of the Idaho Commission through the Attorney General of the State. Com. Clearing House, U C I S Idaho, 1800.05. The Court of Appeals in Georgia and the Supreme Court in Florida, in decisions more sweeping than is necessary here, have likewise interpreted substantially similar provisions. In Schwob Manufacturing Co. v. Huiet, 69 Ga. App. 285, 25 S. E. 2d 149, and in Florida Industrial Commission v. Schwob Co., 153 Fla. 356, 14 So. 2d 666, 667, a corporation acquired from an individual his entire business organization, trade and assets, the individual through stock control, eighty-five per centum in one case and practically one hundred per centum in the other, continuing to exercise domination and control over the business. In each case it was held that the corporation could not claim the benefit experience with respect to employment of the individual.\\nWe are of opinion that the Unemployment Compensation Commission correctly construed the law in denying the plaintiff's demand.\\nAn order will be signed in accordance with this opinion.\\nCh. 258, Vol. 41, Del. Laws, as amended by Chs. 196, 197, 198, Vol. 42, Del. Laws, Chs. 278, 279. 280, 281, 282, 283, Vol. 43, Del. Laws, Chs. 207, 208, Vol. 44, Del. Laws.\"}"

delaware/451603.json

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+"{\"id\": \"451603\", \"name\": \"E. Earle Downing v. John Gasser, Sr.\", \"name_abbreviation\": \"Downing v. Gasser\", \"decision_date\": \"1952-07-21\", \"docket_number\": \"No. 292\", \"first_page\": \"273\", \"last_page\": \"275\", \"citations\": \"47 Del. 273\", \"volume\": \"47\", \"reporter\": \"Delaware Reports\", \"court\": \"Delaware Superior Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T21:01:01.331916+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"E. Earle Downing v. John Gasser, Sr.\", \"head_matter\": \"E. Earle Downing v. John Gasser, Sr.\\n(July 21, 1952.)\\nCaret, J., sitting.\\nHenry M. Canby (of Richards, Layton and Finger) for plaintiff.\\nWilliam H. Benrieihum, (of Morford, Bennethnm, Marvel \\u2022 and Cooch) for defendant.\\nSuperior Court for New Castle County,\\nNo. 292,\\nCivil Action, 1949.\", \"word_count\": \"627\", \"char_count\": \"3783\", \"text\": \"Caret, J.:\\nThe action is one in negligence, the plaintiff claiming to have been injured by falling over a piece of wire lying on defendant's premises. The defendant took plaintiff's oral deposition, counsel waiving both the reading and signing thereof. At least three times during the taking of the deposition, plaintiff definitely and clearly stated that the wire over which he tripped was on a step or platform leading out of defendant's store. This statement was in direct contrast to an allegation in his complaint to the effect that the wire was on the sidewalk adjoining the store.\\nSome three months later, the plaintiff filed the present motion asking that the deposition be reopened to permit him to change his answers by stating that the wire was on the sidewalk. He does not allege any mistake on the part of the reporter in taking the testimony, nor does he present any excuse for having given incorrect statements. He simply says that they are not in conformity with his present recollection. His counsel explained the delay in fifing this motion by the fact that the plaintiff went to Florida shortly after testifying and, the reading and signing having been waived, he did not realize his mistake until he returned and discussed the case with his attorney.\\nThe situation closely resembles that in DeSeversky v. Republic Aviation Corp., D. C., 2 F. D. R. 113, the principal difference, being that in the DeSeversky case the reading was not waived and the alleged errors were discovered before signing. The sole purpose of such waiver is to avoid trouble and inconvenience. In re Samuels, 2 Cir., 213 F. 447. It should not be allowed to interfere with the true purposes of pretrial discovery. Any action otherwise permissible under the present motion will not be barred by the waiver.\\nThe DeSeversky case points out that Fed. Rules Civ. Proc. rule 30(e), 28 U. S. C. A., contemplates an examination which is finished, except for errors and mistakes on immaterial matters. When a witness desires to directly contradict his previous answers on material matters, the examination is not \\\"finished\\\". The distinction is important because the cited rule includes no express right of further examination upon the basis of the changed answers, and, certainly, no such change as the one requested here ought to be permitted without opportunity for such further examination.\\nBoth parties agree that the present application is addressed to the Court's discretion. Undoubtedly, the exercise of that discretion may be conditioned upon such terms as will prevent injustice to either party.\\nThe testimony which plaintiff desires to alter is regarded by both parties as having a significant hearing upon the trial. An important function of the deposition is to enable the defendant to learn the facts plaintiff proposes to prove in Court. This purpose can better be carried out, in my opinion, by reopening the deposition than by waiting until the trial itself. The plan suggested in the DeSeversky case seems a feasible and practicable way to handle the situation and works no injustice to either party. The original answers must, of course, remain in the record. 4 Moore's Federal Practice Sec. 30, 20. Moreover, defendant must have the opportunity to examine the plaintiff further in the light of the new answers. If any unforeseen difficulty should arise during the taking of the further testimony, the parties may come back to the Court under Rule 30 for any proper relief.\\nIt will be so ordered.\"}"

delaware/451648.json

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+"{\"id\": \"451648\", \"name\": \"James W. Marshall, Plaintiff, v. Elizabeth M. Hill, John P. Joseph and Ralph S. Karl, Defendants\", \"name_abbreviation\": \"Marshall v. Hill\", \"decision_date\": \"1952-12-03\", \"docket_number\": \"No. 89\", \"first_page\": \"478\", \"last_page\": \"483\", \"citations\": \"47 Del. 478\", \"volume\": \"47\", \"reporter\": \"Delaware Reports\", \"court\": \"Delaware Superior Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T21:01:01.331916+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"James W. Marshall, Plaintiff, v. Elizabeth M. Hill, John P. Joseph and Ralph S. Karl, Defendants.\", \"head_matter\": \"James W. Marshall, Plaintiff, v. Elizabeth M. Hill, John P. Joseph and Ralph S. Karl, Defendants.\\n(December 3, 1952.)\\nHerrmann, J., sitting.\\nSamuel R. Russell (of Tunnell and Tunnell) for Plaintiff.\\nHerbert L. Cobin for Defendants.\\nSuperior Court for Sussex County,\\nNo. 89,\\nCivil Action, 1952.\", \"word_count\": \"1399\", \"char_count\": \"8144\", \"text\": \"Herrmann, J.:\\nThe plaintiff brings this action for declaratory judgment as a citizen-taxpayer and as a member of the Board of Education of the Lewes Special School District. In his complaint, the plaintiff asserts that each of the defendants is usurping the office of member of the said Board of Education and that each of them is exercising such office without legal right. The defendants deny the assertion and, by counterclaim filed by them as citizen-taxpayers and members of the said Board of Education, they in turn charge the plaintiff with usurpation and unlawful exercise of office on the Board. Each side seeks a declaratory judgment which would have the effect of ouster as to the other. None of the parties claims the office which he or she alleges to be usurped.\\nThe Board of Education of the Lewes Special School District is composed of four members. A vacancy was created when one of the four members of the Board moved out of the District. The controlling Statute provides that such vacancy \\\"shall be filled by the remaining members of the Board of Education for the unexpired term.\\\" 45 Delaware Laws, Chapter 195. The plaintiff and the defendants Hill and Joseph were the three remaining members of the Board and they were unable to agree upon a replacement to fill the vacancy. Hill and Joseph nominated and voted for the defendant Karl and, over the plaintiff's objections, Karl was declared elected to fill the vacancy and he assumed office.\\nThe plaintiff alleges that Karl holds the office without right because, under a proper construction of the Statute, the affirmative vote of all the remaining members of the Board was required to fill the vacancy and Karl did not have that vote. The plaintiff asserts that the defendants Hill and Joseph hold office without right because they did not take the oath of office required by Article XIV of the Delaware Constitution. By their counterclaim, the defendants maintain that the plaintiff holds office without right for the same reason.\\nThe Court, upon its own motion, rais\\u00e9s the issue of jurisdiction and the standing of the parties to seek a declaratory judgment.\\nAn \\\"actual controversy\\\" is a jurisdictional prerequisite in any action brought under our Declaratory Judgments Act and, therefore, the Court is obliged to ascertain the existence of such controversy before it may properly proceed. Jurisdiction may not be conferred upon the Court by the agreement or consent of the parties if the cause does not involve an \\\"actual controversy\\\" within the meaning of that term as it is used in the Statute. The Declaratory Judgments Act may not be invoked merely to seek legal advice. Stabler v. Ramsay, Del. 88 A. 2d 546.\\nI think that the prerequisites of a controversy, such as will warrant consideration of a declaratory judgment action under our Statute, may be summarized as follows: (1) It must he a controversy involving the rights or other legal relations of the party seeking declaratory relief; (2) it must be a controversy in which the claim of right or other legal interest is asserted against one who has an interest in contesting the claim; (3) the controversy must be between parties whose interests are real and adverse; (4) the issue involved in the controversy must be ripe for judicial determination. See Stabler v. Ramsay, supra; 16 Am. Jur., pp. 284, 298; Borchard, Declaratory Judgments, pp. 26-57; Anderson, Declaratory Judgments, pp. 27-42; State ex rel. LaFolletle v. Dammann, 220 Wis. 17, 264 N. W. 627,103 A. L. R. 1089. Applying those prerequisites, it would follow that a mere difference of opinion between public officers, not involving the assertion of adverse interests, is not suEcient to support an action for a declaratory judgment. 16 Am. Jur. p. 319.\\nNo case directly in point has come to my attention. I have found helpful, however, the case of McGee v. Dunnigan, 138 Conn. 263, 83 A. 2d 491. There, the plaintiffs sought a declaratory judgment which would authorize a Board of Education to expend certain funds. The plaintiffs'brought the action as citizens-taxpayers and as the three minority members of the Board of Education. The defendants were the four majority members of the Board of Education and other oEcials who were opposed to the expenditure of the funds. As in the instant case, the Court was requested to construe a statute. The Supreme Court of Errors of Connecticut held that the plaintiffs had no standing to raise the question because their personal rights would not be affected and, therefore, there was no justiciable issue as to them.\\nIn this State, when public oEce is usurped and ouster is sought, the controversy always has been deemed to he between the public and the usurper. In such case, the proceeding for determination of right to office has always been instituted and prosecuted by the Attorney General, on behalf of the State, by way of the common-law remedy of information in the nature of a writ of quo warranta. Brooks v. State, 3 Boyce 1, 79 A. 790, 51 L. R. A., N. S., 1126; Ake v. Bookhammer, 13 Del. Ch. 320, 119 A. 238; State ex rel. Wolcott, Atty. Gen. v. Kuhns, 4 Boyce 416, 89 A. 1; State ex rel. Southerland, Atty. Gen. v. Hart, 3 W. W. Harr. 15, 129 A. 691; State ex rel. Green, Atty. Gen. v. Collison, 9 W. W. Harr. 245, 197 A. 836; Buckingham v. State ex rel. Killoran, Atty. Gen., 3 Terry 405, 35 A. 2d 903; State ex rel. James, Atty. Gen. v. Schorr, 5 Terry 232, 58 A. 2d 421. I find nothing in the Declaratory Judgments Act which would change the time-honored thesis that usurpation of public office is an offense against the sovereignty of the people and that the proceeding for ousting the offender must be brought by the Attorney General on behalf of the State. See Jones v. Talley, 190 Tenn. 471, 230 S. W. 2d 968; McCarthy v. Hoan, 221 Wis. 344, 266 N. W. 916; Brush v. City of Mount Vernon, Sup., 20 N. Y. S. 2d 455, affirmed 260 App. Div. 1048, 24 N. Y. S. 2d 355; Manlove v. Johnson, 198 Wash. 280, 88 P.2d 397; Weaver v. Maxwell, 189 Tenn. 183, 224 S. W. 2d 832.\\nAccordingly, it is held that the Court does not have the jurisdiction to grant, and the parties do not have the standing to seek, a declaratory judgment in this case.\\nThe plaintiff contends that Reese v. Hartnett, 6 Terry 339, 73 A. 2d 782, reversed, Del., 75 A. 2d 266, is authority for his right to maintain this declaratory judgment action to try title to \\\" public office. I consider this contention to be without merit. The Reese case did not involve the charge of usurpation of office and a request for ouster. In that case, the plaintiffs, asserting that they constituted the Bureau of Registration, sought to oblige the defendants, constituting the Levy Court, to pay salaries to the plaintiffs. After the institution of the action, the\\nplaintiffs added as parties defendant another group of persons who likewise claimed to constitute the Bureau of Registration and to be entitled to the salaries. The Court was then asked to U \\\"enter a judgment declaring who constitutes the Bureau of Registration\\\". I find nothing in the opinions in the Reese case, expressed or implied, which would be in conflict with the conclusions reached herein.\\nThe complaint and the counterclaim will be dismissed.\\n46 Delaware Laws, Chapter 269 provides in part as follows: \\\"In cases of actual controversy the Superior Court shall have power, to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed, and such declaration shall have the force and effect of a final judgment or decree and be reviewable as such.\\\"\\nIt is unnecessary to decide whether or not, in a proper case, the Attorney General may invoke the Declaratory Judgments Act in lieu of the common-law remedy of information in the nature of a writ of quo warranta.\"}"

delaware/452874.json

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+"{\"id\": \"452874\", \"name\": \"Charles Carey, Claimant-Appellee, v. Bryan & Rollins, Employer-Appellant\", \"name_abbreviation\": \"Carey v. Bryan & Rollins\", \"decision_date\": \"1954-05-06\", \"docket_number\": \"No. 115\", \"first_page\": \"395\", \"last_page\": \"402\", \"citations\": \"48 Del. 395\", \"volume\": \"48\", \"reporter\": \"Delaware Reports\", \"court\": \"Delaware Superior Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-11T00:27:59.430046+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Charles Carey, Claimant-Appellee, v. Bryan & Rollins, Employer-Appellant.\", \"head_matter\": \"Charles Carey, Claimant-Appellee, v. Bryan & Rollins, Employer-Appellant.\\n(May 6, 1954.)\\nHerrmann, J., sitting.\\nRobert W. Tunnell and Arthur D. Betts (of Tunnell and Tunnell) for the Claimant-Appellee.\\nHouston Wilson for the Employer-Appellant.\\nSuperior Court for Sussex County,\\nNo. 115, Civil Action, 1953.\", \"word_count\": \"1595\", \"char_count\": \"9425\", \"text\": \"Herrmann, J.:\\nThe claimant seeks workmen's compensation for injuries sustained when a motor vehicle, which he was driving, ran off the road and struck a telephone pole.\\nDuring the hearing before the Industrial Accident Board, the claimant testified upon direct examination regarding details of the accident in which he sustained the injuries for which he now claims compensation. The following exchange took place during cross-examination of the claimant:\\n\\\"Q. Now during the course of that evening did you have anything to drink that had alcohol in it?\\n\\\"Mr. TunneH: I object to that unless Mr. Wilson can produce evidence. Why, that question is just one conceived to em barrass and insult the witness. I don't believe he has any testimony to that effect and, if so, he should state it to this Court.\\n\\\"Mr. Wilson: It so happens that the testimony did. But nevertheless,\\u2014\\n\\\"Mr. Tunnell: (interrupting) You don't have it.\\n\\\"Mr. Wilson: Nevertheless, I can still ask this man and he can give me the answer.\\n\\\"Mr. Tunnell: You can't ask a man if he has been in jail, unless you think he has and can prove it. You can't ask him if he was drunk unless you have evidence that he was drunk.\\n\\\"Mr. Wilson: I insist upon my right to ask this witness whether or not he had anything to drink that evening with alcohol in it.\\n\\\"The Chairman: The Board rules that Mr. Carey, at his own discretion, may answer the question.\\n\\\"Mr. Tunnell: Do you understand what the Board tells you? They say you may in your own discretion answer that question or not answer, as you see fit. You may say 'I refuse to answer,' or you may answer in your own discretion.\\n\\\"The Witness: I just refuse- to answer.\\n\\\"Q. What was the position? A. I refuse to answer.\\n\\\"Q. You refuse to answer whether or not you had anything to drink during the course of that evening with alcohol in it, is that my understanding ? A. Yes, sir.\\\"\\nI am of the opinion that the Board erred in permitting the claimant to refuse to answer the question regarding alcoholic beverage. It is not entirely clear that Carey was claiming his constitutional privilege against self-incrimination. It appears that his attorney was claiming for him something akin to a privilege against self-degradation. It is generally recognized that a witness must answer a question, even though to do so will disgrace him, where his testimony on the point is material to the issue. See 58 Am. Jur. \\\"Witnesses\\\" \\u00a7 35. The question was proper cross-examination and the claimant should have been compelled to give his answer.\\nEven if we assume that the privilege against self-incrimination was properly claimed by Carey, personally and clearly, there was error in allowing the privilege. It is well established that when a witness testifies as to a fact or incident without invoking his privilege against self-incrimination, he thereby waives that privilege with respect to the details and particulars of the fact or incident. See U. S. v. St. Pierre, 2 Cir., 132 F. 2d 837, 147 A. L. R. p. 255, et seq.\\nThere are two reasons usually given to support this theory of waiver of the privilege against self-incrimination. First, in the interest of justice, the trier of fact is entitled to a full statement of the witness' knowledge of matters concerning which he testifies. Thus, when a witness has sworn to tell the whole truth and has commenced to testify as to a fact or incident within his knowledge, he cannot be permitted to withhold particulars thereof under a claim of privilege made for the first time upon cross-examination. Secondly, when a witness commences to testify as to a fact or incident without asserting his privilege, he must be deemed to have done so with knowledge that a full disclosure of the particulars thereof would tend to incriminate him. Thus, he must be considered to have waived his privilege when he commences to testify and will not be permitted to defeat the right of full and complete cross-examination by invoking the privilege.\\nIn Roddy v. Finnegan, 43 Md. 490, the prevailing view was well expressed as follows:\\n\\\"The witness ordinarily has the privilege of declining to answer a question that might subject him to criminal prosecution; but this he can waive. It is the privilege of the party. Where he is both party and witness for himself, he must be held on his cross-examination as waiving the privilege, as to any matter about which he has given testimony in chief. Having testified to a part of the transaction in which he was concerned, he is bound to state the whole.\\nThe rule as to waiver of the privilege against self-incrimination is stated at 58 Am,. Jur. \\\"Witnesses\\\" \\u00a7 95 as follows:\\n\\\" according to the weight of American authority, a witness who, in his direct examination, voluntarily opens an account of a transaction will, on his cross-examination, be compelled to complete the narrative notwithstanding his claim of privilege from testifying; he will not be allowed to state a fact and afterward refuse to give the details. The objection that an answer to a question asked would tend to incriminate the witness must, therefore, be made at the threshold of the examination. He may not wait and answer a part and then refuse to answer other questions legitimate to a cross-examination. A contrary rule, it has been said, would sanction the obvious injustice of permitting a person to waive his privilege under the constitutional provisions and give testimony to his advantage, or the advantage of his friends, and at the same time and in the same proceeding assert his privilege and refuse to answer questions that are to his disadvant\\u00e1ge or the disadvantage of his friends.\\\"\\nBy the explicit terms of the Statute, the claimant is not entitled to benefits under the Workmen's Compensation Law if his injuries resulted from intoxication. 19 Del. C. \\u00a7 2353. Thus, the question, which the claimant was permitted to avoid, is of extreme importance and the Employer should have been permitted full and complete cross-examination upon this phase of the case.\\nAccordingly, it is held that there was error in permitting the claimant to refuse to answer the question regarding alcoholic beverage and, for that reason, the award must be reversed and the cause remanded for further hearing.\\nIf, upon rehearing, the claimant persists in his refusal to answer material questions regarding the issue of intoxication, the Board may strike all of the claimant's testimony regarding the accident, with the result that his claim for compensation would be unsupported and, therefore, would be denied. See 58 Am. Jur. \\\"Witnesses\\\" p. 56; 147 A. L. R. pp. 270-273.\\nOne of the contentions urged by the Employer, both before the Board and upon this appeal, was based upon the following provision of the Workmen's Compensation Law, 19 Del. C. \\u00a7 2353(b):\\n\\\"If any employee be injured because of his wilful failure or refusal to perform a duty required by statute, he shall not he entitled to \\\" compensation or service under the compensatory provisions of this chapter.\\\"\\nThe Employer contends that the claimant wilfully violated State penal laws governing speeding and reckless driving and that, therefore, the claimant is barred by the Statute from recovery of compensation.\\nThe Board failed to make findings or to announce conclusions upon this issue.\\nIn view of the clear prohibition of the Statute, it is held that the claimant is not entitled to compensation if he wilfully violated the Motor Vehicle Law governing speed or reckless driving and if such violation was the proximate cause of the accident. Aetna Life Ins. Co. v. Carroll, 169 Ga. 333, 150 S. E. 208; cf., King v. Empire Collieries Co., 148 Va. 585, 139 S. E. 478, 58 A. L. R. 193; cf., Sloss-Sheffield Steel & Iron Co. v. Nations, 236 Ala. 571, 183 So. 871, 119 A. L. R. 1403; 1 Larson on Workmen's Compensation Law \\u00a7 35.10, et seq.; 6 Schneider on Workmen's Compensation \\u00a7 1598, et seq.\\nIn this connection, there are four possible questions to be decided:\\n1) Did Carey violate the speed Statute?\\n2) Did Carey violate the Statute governing reckless driving?\\n3) If he violated either or both of such Statutes, was the violation \\\"wilful\\\"?\\n4) If there was a wilful violation, was it the proximate cause of the accident?\\nSince the case must be remanded for the reason heretofore stated, and since some or all of the above questions must be decided in order to dispose of the Employer's contentions, the remand is for the further purpose of enabling the Board, as the trier of fact, to complete the record by deciding the foregoing questions and by announcing conclusions in accordance with its findings.\\nI find no merit in the Employer's contentions that the accident did not arise out of the employment or during the course of the employment. I find that there is evidence to support the Board's conclusion that the claimant's injury was not the result of \\\"deliberate and reckless indifference to danger\\\". See 19 Del.C. \\u00a7 2353(b).\\nA certified copy of this Opinion will be filed forthwith by the Prothonotary with the Industrial Accident Board.\\nSee Mumford v. Croft, 8 Terry 464, 93 A. 2d 506.\"}"

delaware/452910.json

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+"{\"id\": \"452910\", \"name\": \"T. Fletcher Williamson, Plaintiff, v. Elsie Lee Correll Williamson, Defendant\", \"name_abbreviation\": \"Williamson v. Williamson\", \"decision_date\": \"1954-01-05\", \"docket_number\": \"No. 219\", \"first_page\": \"277\", \"last_page\": \"282\", \"citations\": \"48 Del. 277\", \"volume\": \"48\", \"reporter\": \"Delaware Reports\", \"court\": \"Delaware Superior Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-11T00:27:59.430046+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"T. Fletcher Williamson, Plaintiff, v. Elsie Lee Correll Williamson, Defendant.\", \"head_matter\": \"T. Fletcher Williamson, Plaintiff, v. Elsie Lee Correll Williamson, Defendant.\\n(January 5, 1954.)\\nHerrmann, J., sitting.\\nDaniel J. Layton, Jr., for the plaintiff.\\nEverett F. Warrington for the defendant.\\nSuperior Court for Sussex County,\\nNo. 219, Civil Action, 1953.\", \"word_count\": \"1336\", \"char_count\": \"7673\", \"text\": \"Herrmann, J.:\\nThe plaintiff seeks annulment of his marriage to the defendant on the ground that she had a husband living at the time the marriage was contracted. See 13 Del. C. \\u00a7 1551.\\nAt the trial of the case, the plaintiff proved a ceremonial marriage between the parties on March 19, 1946, in Miami, Florida. He then offered in evidence a final decree of divorce, granted on July 3, 1946 by the Circuit Court of Manatee County, Florida, by which Theodore William Correll, as plaintiff, was divorced from Elsie W. Correll. It is admitted that the defendant here was the defendant in the Florida action. The plaintiff offered no other evidence in support of the ground of his petition, contending that it is manifest from the face of the Florida divorce decree that the defendant had a husband living on March 19, 1946 when she married the plaintiff. The defendant contends that the plaintiff has failed to sustain the burden of proof imposed upon him in a case of this kind.\\nThe Florida decree contained the following:\\n\\\"This cause coming on to be heard on this day upon the Plaintiff's Bill of Complaint, the decree pro confesso which has been duly and regularly entered against the Defendant, and it appearing to the court and the court finding from the said Bill of Complaint and decree pro confesso that it has jurisdiction of the subject matter of and parties to this cause, that the relation of husband and wife now exists between the parties hereto, and that the defendant is guilty of willful, obstinate, and continued desertion of the plaintiff for a period of more than one year prior to the filing of the Bill of Complaint herein, and the court being advised in the premises, it is upon consideration,\\n\\\"Ordered, adjudged and decreed that the marriage between the plaintiff, Theodore William Correll and Elsie W. Correll be and the same hereby is dissolved, and the said parties and each of them are hereby forever freed from the obligations arising therefrom.\\\"\\nThe plaintiff contends that the finding of the Florida Court, as to the husband-wife relationship of the parties to the Florida action, is not only proof adequate to support the petition here, but, further, is proof binding upon this Court by virtue of 13 Del. C. \\u00a7 1511. I am unable to agree.\\nDelaware public policy forbids the annulment of a consummated marriage except upon the most convincing proof. Anonymous v. Anonymous, 7 Terry 458, 85 A. 2d 706. The law indulges a presumption in favor of the validity of an existing marriage when it is attacked upon the basis of a prior subsisting marriage. State v. Collins, 6 Boyce 260, 99 A. 87. The presumption of the validity of an existing marriage is the strongest of the several presumptions applicable in annulment actions. 3 Nelson, Divorce and Annulment, \\u00a7 31.61. The strength of this presumption, and the special weight generally accorded to it in a case of this kind, is demonstrated by the oft-quoted statement of the Supreme Court of Idaho in Smith v. Smith, 32 Idaho 478, 185 P. 67, 69:\\n\\\"The authorities all agree upon the following broadly stated rule: Where it is sought to invalidate a present existing marriage on the ground that one of the parties thereto was incapable of consummating a lawful marriage by reason of a former subsisting marriage, the proof of the latter, the burden of showing which is upon the party attacking the validity of the former, must be clear, convincing, and satisfactory. Or, in other words, an existing marriage being shown, the presumption of its validity is so strong that proof of a former subsisting marriage in order to be sufficient to overcome this presumption, must be so cogent and conclusive as to fairly preclude any other result.\\\" See also 1 Bishop on Marriage, Divorce and Separation, \\u00a7 956.\\nIn the instant case, in order to overcome the presumption of the legality of his marriage to the defendant, the plaintiff has the burden of proving, by clear and conclusive evidence, the validity of the alleged prior marriage of the defendant and that it subsisted at the time when the plaintiff's marriage to the defendant was contracted. See Schaffer v. Krestovnikow, 88 N. J. Eq. 192, 102 A. 246. This burden of proof includes the burden of proving conclusively that the defendant and Correll were free from disabilities and eligible to contract a legal marriage. Routledge v. Githens, 118 Or. 70, 245 P. 1072, 45 A. L. R. 922; Sparks v. Ross, 72 N. J. Eq. 762, 65 A. 977. The proof in this case falls far short of that standard.\\nI am of the opinion that the Florida divorce decree, the only evidence offered to establish the prior marriage of the defendant, is not sufficiently conclusive to overcome the potent presumption of the validity of the existing marriage between the plaintiff and the defendant. A decree of divorce does not conclusively establish the validity of the marriage which it purports to dissolve. It is apparent that the Florida action was undefended and that the decree of divorce was taken by default. The issue of the validity of a marriage between Correll and this defendant was not litigated and determined in the Florida action. The plaintiff may not rely upon the doctrine of res judicata nor may he claim estoppel. Routledge v. Githens, supra. Adopting the rule generally prevailing in the United States, it is held that the Florida divorce decree does not conclusively establish that a valid marriage existed between Correll and this defendant. See Chirelstein v. Chirelstein, 12 N. J. Super. 468, 79 A. 2d 884, 890; Williams v. Williams, 63 Wis. 58, 23 N. W. 110; Smith v. Foto, 285 Mich. 361, 280 N. W. 790, 120 A. L. R. 801; Ex parte Soucek, 7 Cir., 101 F. 2d 405; Oborn v. State, 143 Wis. 249, 126 N. W. 737, 31 L. R. A., N. S., 966.\\nI find no merit in the plaintiff's contention that, by reason of the full faith and credit provisions of 13 Del. C. \\u00a7 1511, this Court is bound by the finding of the Florida Court as to the husband-wife relationship between the parties to the Florida action. The validity of the Florida divorce decree is not under attack here. There is presented here only the question of the conclusiveness of a finding recited in the decree relating to an issue which was not tried or determined by the Florida Court. Since that Court did not adjudicate the issue of the validity of a marriage between Correll and this defendant, it is obvious that the divorce decree is not-deprived of full faith and credit by a declination to accept it as conclusive as to that issue.\\nAccordingly, it is held that the plaintiff has failed to prove, by the requisite quantum of proof, a valid marriage between the defendant and Correll and that, therefore, the plaintiff has failed to prove that the defendant had a husband living at the time of her marriage to the plaintiff.\\nA decree of annulment will be denied.\\nThis Statute provides:\\n\\\"Full faith and credit shall be given in all the courts of this State to a decree of annulment of marriage or divorce by a court of competent jurisdic tion in another State, territory, or possession of the United States. Nothing herein contained shall be construed to limit the power of any court of this State to give such effect to a decree of annulment or divorce by a court of a foreign country as may be justified by the rules of international comity.\\\"\\nIn this case, the parties cohabited for about seven years and there was a child of the union.\"}"

delaware/454324.json

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+"{\"id\": \"454324\", \"name\": \"In the Matter of the Last Will and Testament of Elizabeth Veronica Dougherty, Deceased\", \"name_abbreviation\": \"In re the Last Will & Testament of Dougherty\", \"decision_date\": \"1955-06-06\", \"docket_number\": \"\", \"first_page\": \"273\", \"last_page\": \"277\", \"citations\": \"49 Del. 273\", \"volume\": \"49\", \"reporter\": \"Delaware Reports\", \"court\": \"Delaware Orphans' Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T20:29:38.319738+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of the Last Will and Testament of Elizabeth Veronica Dougherty, Deceased.\", \"head_matter\": \"In the Matter of the Last Will and Testament of Elizabeth Veronica Dougherty, Deceased.\\n(June 6, 1955.)\\nHerrmann, J., sitting.\\nStewart Lynch (of Hastings, Lynch and Taylor) for Catherine Rita Maloney, Proponent of the Will.\\nJohn Merwin Bader for Ruth M. Connor, Contestant of the Will.\\nOrphans\\u2019 Court for New Castle County.\", \"word_count\": \"1055\", \"char_count\": \"5896\", \"text\": \"Herrmann, J.:\\nThis appeal arises from a proceeding before the Register of Wills in which Ruth M. Connor petitioned for review of the probate of the will of Elizabeth Veronica Dougherty. After the contestant posted the cost bond required by 12 Del. C. \\u00a7 1310 and after a hearing in which the executrix of the will was proponent, the Register of Wills found that the contestant \\\"failed to make out a prima facie case\\\" and the petition for review was dismissed.\\nThe proponent then petitioned the Register to tax her counsel fees against the contestant, as part of the costs of the proceeding, and to hold the contestant's cost bond chargeable for the payment of such fees. The Register denied that application and the proponent appeals.\\nThe question for decision is this: May the word \\\"costs\\\", as it is used in 12 Del. C. \\u00a7 1310 and 10 Del. C. \\u00a7 5106, be construed to include the proponent's counsel fees?\\nAs a general rule, in the absence of statute or contract, a litigant must pay his own counsel fees. In re Equitable Trust Co., Del. Ch., 30 A. 2d 271; Maurer v. International Re Insurance Corp., Del., 95 A. 2d 827. It is settled that a court may not order the payment of attorneys' fees as a part of the costs to be paid by the losing party unless the payment of such fees is specifically authorized by statute or contract. See Great American Indemnity Co. v. State, 32 Del. Ch. 562, 88 A. 2d 426. In its common usage and according to its usual and ordinary meaning in this jurisdiction, the word \\\"costs\\\" does not include counsel fees of the successful litigant. See 10 Del. C. Ch. 51 \\\"Costs\\\"; Peyton v. William C. Peyton Corporation, 23 Del. Ch. 365, 8 A. 2d 89; Muhleman & Kayhoe, Inc., v. Brown, 4 Terry 481, 50 A. 2d 92; J. J. White, Inc., v. Metropolitan Merchandise Mart, 9 Terry 526, 107 A. 2d 892.\\nThe proponent contends, however, that legal fees and expenses have been considered by the court as costs in certain will contest cases and that, since the Legislature is presumed to have been aware of such practice when it enacted 12 Del. C. \\u00a7 1310, the word \\\"costs\\\" as used in that Statute must be read to include the proponent's counsel fees. The proponent cites In re Warrington's Will, 2 Boyce 595, 81 A. 501; Rodney v. Burton, 4 Boyce 171, 86 A. 826; In re Gordon's Will, 1 W. W. Harr. 108, 111 A. 610; Conner v. Brown, 9 W. W. Harr. 529, 3 A. 2d 64.\\nThe proponent's argument is unacceptable for several reasons. It is sufficient to state that the cited cases do not support the proponent's contention. In those cases, the Court dealt with the question of the propriety of an allowance of legal fees and expenses to an unsuccessful contestant as a charge against the estate. Compare Di lorio v. Cantone, 49 R. I. 452, 144 A. 148. The cited cases did not involve the taxing of proponent's counsel fees as costs against an unsuccessful contestant. While the word \\\"costs\\\" appears in certain of the cited cases, it is not used in the sense urged by the proponent. The word is used in those cases in the sense of a proper \\\"cost\\\" of, or charge against, the estate and not in the sense of a taxable \\\"cost\\\" against a losing contestant. Indeed, if the cited cases stand for the proposition that the Register may tax the proponent's counsel fees as costs against an unsuccessful contestant, those cases would seem to be in irreconcilable conflict with the recent statement of the Supreme Court in Great American Indemnity Co. v. State, supra.\\nSince, by common usage and ordinary meaning, the word \\\"costs\\\" does not include counsel fees of a successful liti gant and since there appears to be no acceptable reason for according to the word any meaning broader than that ordinarily given it, it is held that the word \\\"costs\\\", as used in 12 Del. C. \\u00a7 1310 and 10 Del. C. \\u00a7 5106, may not be construed to include counsel fees of the proponent.\\nIn the absence of specific statutory authority, the Register of Wills does not have the power to order the payment of the proponent's attorneys' fees as part of the costs to be paid by the losing contestant..\\nAccordingly, no error is found in the order of the Register of Wills and it will be affirmed.\\n12 Del. C. \\u00a7 1310 provides, in part, as follows:\\n\\\"(a) Any person interested who shall not voluntarily appear at the time of taking the proof of a will, shall at any time within one year after such proof have a right of review which shall on his petition be ordered by the Register; but unless the petitioner or petitioners shall, within ten days after such review shall have been ordered by the Register, give bond to the State, jointly, and severally if more than one petitioner, with such sureties and in such penal sum not less than $500 and not more than $5,000 as the Register determines, conditioned for the payment of any and all costs occasioned by such review which may he decreed against such petitioner, or petitioners, such petition shall he considered as abandoned and shall be dismissed and proceedings may be had in all respects as though no such review had been ordered.\\n\\\"(b) The Register may determine the costs occasioned by such review and decree the payment of such costs by the petitioner or petitioners.\\\"\\n10 Del. C. \\u00a7 5106 provides as follows:\\n\\\"The Court of Chancery, the Orphans' Court, and the Register's Court shall make such order concerning costs in every case as is agreeable to equity.\\\"\\nIt is noteworthy that in the most recent of the cited cases, Conner v. Brown, supra [9 W. W. Harr. 529, 3 A. 2d 73], the Court carefully distinguished \\\"costs, counsel fees, and expenses of counsel\\\".\"}"

delaware/455422.json

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+"{\"id\": \"455422\", \"name\": \"E. I. duPont de Nemours & Company, a corporation, Plaintiff Below, Appellant, v. I. D. Griffith, Inc., a corporation, Defendant below, Appellee\", \"name_abbreviation\": \"E. I. duPont de Nemours & Co. v. I. D. Griffith, Inc.\", \"decision_date\": \"1957-03-29\", \"docket_number\": \"No. 50\", \"first_page\": \"348\", \"last_page\": \"354\", \"citations\": \"50 Del. 348\", \"volume\": \"50\", \"reporter\": \"Delaware Reports\", \"court\": \"Delaware Supreme Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T18:56:26.360348+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"E. I. duPont de Nemours & Company, a corporation, Plaintiff Below, Appellant, v. I. D. Griffith, Inc., a corporation, Defendant below, Appellee.\", \"head_matter\": \"E. I. duPont de Nemours & Company, a corporation, Plaintiff Below, Appellant, v. I. D. Griffith, Inc., a corporation, Defendant below, Appellee.\\n(March 29, 1957.)\\nWolcott and Bramhall, Justices, and Marvel, Vice-Chancellor, sitting.\\nCarl E. Geuther for appellant.\\nHenry R. Horsey for appellee.\\nSupreme Court of the State of Delaware,\\nNo. 50,\\n1956.\", \"word_count\": \"1756\", \"char_count\": \"10376\", \"text\": \"Wolcott, J.:\\nAn action was commenced by duPont Company to recover damages resulting from the forceful moving by a high wind of a piece of metal duct work left on the roof of a building being constructed at its Chestnut Run Plant. The cause was tried before the Court without a jury and resulted in the entry of a judgment for the defendant, Griffith.\\nDuPont Company entered into a contract with Griffith for the erection of metal duct work on the roof of its Polychemical Laboratory. At the same time, duPont Company was engaged either with its own employees or through other contractors with the construction of a roof for that laboratory. To give access to the roofers to that part of the roof on which they were then working, a piece of metal duct work previously installed by Griffith's employees was unfastened and placed out of the way of the workmen but in a position exposed to the winds.\\nAs a normal routine, duPont Company obtained weather forecasts daily and advised the responsible persons supervising any work on its premises of these forecasts. On July 14, 1954 thunderstorms were predicted for that night and the following day. This forecast was passed on to the various responsible persons. Notwithstanding this warning, the piece of metal duct work, which had been unfastened, was not secured at the end of the day's work, nor placed in a safe position. During the night it was forced by high winds across the roof of the laboratory, occasioning damage to the extent of approximately $2,100.\\nThe action seeks to hold Griffith responsible on the theory that it was an independent contractor and that the duct work was left exposed by the negligence of Griffith's employees for which it is responsive in damages.\\nThe fundamental issue is whether Griffith was in fact an independent contractor, or whether duPont Company exercised such control over Griffith's employees that, in effect, Griffith had been made the agent of duPont Company, thus placing the responsibility for damage resulting from the negligence of Griffith's employees upon duPont Company itself.\\nThe trial Judge held that Griffith was not an independent contractor but was an agent of duPont Company which had retained a large measure of control over the operation Griffith had contracted to perform. The trial Judge found that duPont Company's control was asserted through its employee, Harrington.\\nThere is no dispute as to the rule of law applicable. Admittedly, if Griffith was operating as an independent contractor it is liable for the damage resulting from negligent failure to secure from high winds the piece of metal duct work in question. The problem resolves itself, therefore, to a determination of the status of Griffith. Generally speaking, there is no absolute rule to be applied in determining whether or not a purported contractor is in fact independent, or is in fact an agent or employee of the owner. Each case stands or falls on its own facts. The test of independency consists of the amount of control retained or exercised by the owner, particularly with respect to the absolute right to direct the manner and method of proceeding with the work rather than with respect to the end result only. A requirement that the work be performed according to standards and specifications imposed by the owner is not sufficient to establish the degree of control necessary to make a presumably independent contractor the agent of the owner. But retention of the right not only to insure conformity with specifications but the retention or exercise of the right to direct the manner in or means by which the work shall be performed will destroy the independent status of the contractor. 27 Am. Jur., Independent Contractors, \\u00a7 5, 6, 7; 1 Thompson on Negligence 547; 56 C. J. S., Master and Servant, \\u00a7 3(2); Restatement of Agency, \\u00a7 2(3).\\nThe question, therefore, decided below was almost entirely one of fact. Upon appeal, by way of Writ of Certiorari from such a ruling the function of this Court is to determine whether or not the judgment rendered is supported by any competent evidence in the record, and if that be the fact, to issue a mandate of affirmance. This result would follow even though an independent evaluation of the record by us might lead to an opposite conclusion. We are required to treat the judgment of a Superior Court Judge sitting without a jury as though it had been entered following the rendering of a jury's verdict. Mulco Products v. Black, 11 Terry 246, 127 A. 2d 851; Turner v. Vineyard, 7 Terry 138, 80 A. 2d 177.\\nWe think the trial Judge accepted at its face value the testimony of Harrington, the admitted employee of duPont Company, who was called as one of its principal witnesses. If this testimony is accepted, as we believe it was by the trial Judge, it appears that he was the man placed by duPont Company in charge of all of the roofing activity and related matters; that it was his job to co-ordinate the activities of the various subcontractors working on the roof, including the activities of Griffith's men installing the metal duct work; that part of his job was to approve or disapprove all the work done on the roof; that he had over-all control of all work done on the roof; and that any work done must be done in accordance with duPont Company's safety standards.\\nHarrington testified that the particular piece of duct work, the moving of which by high winds caused the damage, had at one time been installed by Griffith and had been removed later to permit access for workmen and materials to other parts of the roof. He testified that if the duct work had not been removed at his specific direction, nevertheless it had been moved with his approval. He testified that it was his duty to see that material lying around on the job was secured against movement by high winds at the close of the day's work. He further testified that while he knew the particular piece of metal duct work was, on July 14, 1954, placed in an exposed and vulnerable position, and that he gave orders to secure all loose material at the close of work on that day, nevertheless he did not make certain that this particular piece of duct work was securely fastened.\\nPrimarily, upon the basis of Harrington's testimony, the trial Judge concluded that duPont Company, through one of its employees, exercised absolute control over the means and manner of performing the roofing and related activities involved in the construction project. We think his conclusion in this respect is supported by competent evidence if Harrington's testimony is accepted fully. The conclusion thus reached gains some additional support from the anomalous position of one Wofford, who was carried on Griffith's payroll as its foreman in charge of its employees working on the job. Actually, Wofford had been a duPont Company employee engaged in supervising sheet metal work for a number of years prior to the execution of the contract between Griffith and duPont Company. He was in fact so employed at a duPont Company plant in the South when he received orders from duPont Company to report to the Chestnut Run Plant in Wilmington. When he reported there he found that he had been placed upon Griffith's payroll and put in charge of Griffith's men performing its contract with duPont. This contract was let to Griffith on a cost-plus-fixed-fee basis. Wofford was in complete charge of Griffith's men. He testified that it was common practice for the duPont Company to enter into an arrangement of this nature when the job to be done was such that certain crafts would not work for duPont Company directly. It further appears that upon the completion of the job, Wofford expected to return to the employ of duPont Company.\\nThe trial Judge expressly stated that he did not find it necessary to decide whether Wofford's equivocal status on Griffith's payroll was decisive on the question of control over the operation by duPont Company, but that his position, considered with the position of Harrington as outlined in his uncontradicted testimony, compelled the conclusion that Griffith was not an independent contractor.\\nWe think that there is sufficient evidence in the record to support the conclusion without the necessity of deciding the question of whether or not Wofford came under the category of a duPont Company employee loaned to Griffith which, under some circumstances, would support the conclusion that the loaning employer retained such a measure of control over the operation as to destroy the independent nature of the contract. Cf. Restatement of Agency, \\u00a7 227.\\nThis record presents one curious aspect. Neither party has seen fit to offer in evidence the contract between duPont Company and Griffith. The failure to do so is unexplained, and we think the lack of explanation by one side or the other is, in it self, inexplicable, since the contract is always an important factor in determining whether the owner has retained such a right of control over the operation as to destroy the existence of an independent contract.\\nFinally, duPont Company argues that irrespective of the fact of whether or not Griffith was an independent contractor, the failure to secure the piece of duct work was the direct responsibility of one Draco, an employee of Griffith, after orders to secure everything had been issued, and that an agent or servant is liable to his principal for the negligent performance of his duties. Assuming that to be the rule, it does not help duPont Company's case, for it also was the responsibility of Harrington, not only to order the material to be made secure, but also to insure that his orders were carried out. He did not do the latter. His negligence accordingly was a contributing cause of the damage and, as such, is imputed to his employer, duPont Company. 65 C. J. S., Negligence, \\u00a7 162.\\nWe hold, therefore, that there is competent evidence in the record to support the factual conclusions of the trial Judge upon which judgment was entered for Griffith.\\nThe judgment below is affirmed.\"}"

delaware/457794.json

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+"{\"id\": \"457794\", \"name\": \"Robert S. Kirkwood, vs. John Mitchell, administrator de bonis non of John Mitchell, dec'd\", \"name_abbreviation\": \"Kirkwood v. Mitchell\", \"decision_date\": \"1821-03\", \"docket_number\": \"\", \"first_page\": \"130\", \"last_page\": \"132\", \"citations\": \"1 Del. Ch. 130\", \"volume\": \"1\", \"reporter\": \"Delaware Chancery Reports\", \"court\": \"Delaware Court of Chancery\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T21:00:12.346752+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Robert S. Kirkwood, vs. John Mitchell, administrator de bonis non of John Mitchell, dec\\u2019d.\", \"head_matter\": \"Robert S. Kirkwood, vs. John Mitchell, administrator de bonis non of John Mitchell, dec\\u2019d.\\nSussex,\\nMarch T. 1821.\\nA legatee may file a bill for his legacy against the personal representative of the deceased executor of the testator (the executor having received assets to pay the legacy) without making the administrater c. t. a., d. b. n. of the testator a party.\\nThe deceased executor having left a will and appointed an executrix thereof, who, after taking letters testamentary, died : Held, that her personal representative was a necessary party to a bill filed for the legacy against the administrator c. t. a.,d. b. n. of the deceased executor of the testator under whose will the legacy was claimed.\\nBill in Equity to recover a legacy.\\u2014Alexander Smith, by his will, bequeathed a legacy to Robert S. Kirk-wood. The bill was filed by the legatee against the defendant as the administrator de bonis non of John Mitchell, dec\\u2019d, who in his lifetime was the surviving executor of Alexander Smith, the testator. At the July Term, 1819, a demurrer to the bill was filed, and the following causes of demurrer assigned, viz : 1. That the complainant, did not in his bill set'forth that he, the complainant, had sued out administration on the estate of Alexander Smith, the testator; and, therefore, he hath not entitled himself to receive said legacy. 2. That the complainant could not discharge the defendant of said money if the defendant should pay it, the complainant not being entitled to receive it. 3. That Alexander Smith is dead, and his executor or administrator is not a party to the bill. 4. That the complainant hath a remedy at law.\\nRobinson, for the complainant.\\nCooper and Wells, for the defendants.\", \"word_count\": \"602\", \"char_count\": \"3543\", \"text\": \"The Chancellor\\nwas of opinion that the legatee might sue in this Court the personal representative of the executor who had received assets of the testator sufficient to pay the legacy.\\nThe demurrer was overruled, and the defendant ordered to answer.\\nThe Chancellor's order was afterwards, at the June Term, 1820, affirmed by the High Court of Errors and Appeals.\\nAfterwards, at March Term, 1821, this cause came again before the Chancellor, for a hearing upon the bill, answer and exhibits. Pending the hearing it appeared that John Mitchell, deceased, who in his lifetime was the surviving executor of Alexander Smith, had made a will appointing his wife, Rhoda Mitchell, the executor thereof; that Rhoda Mitchell had, after taking letters testamentary, died, having made her will and appointed James Windsor and James Wiley her executorsthat they had renounced, and upon their renunciation Haney Wiley had taken out administration c. t. a., d. b. n. of the said Rhoda. Haney Wiley was not a party to this bill.\\nRidgely, Chancellor.\\nThe administratrix of Rhoda Mitchell is a necessary party. Rhoda may have paid the debt, which her representatives alone can show ; but it is particularly necessary in this case that her representative should be a party, because John Mitchell devised land to be sold by his executrix, Rhoda, for payment of his debts. She sold the land and ought to account for the proceeds of such sale, to be applied to the payment of this debt, if any thing shall be found due to complainant, unless it should appear that she applied the proceeds to other debts.\\nLet the cause stand over, with leave to amend the bill by making Haney Wiley, administratrix,c. t. a.,d. b. n. of Rhoda Mitchell, deceased, a party.\\nThis opinion is not drawn out, nor are the arguments of counsel given in the Chancellor's notes.\"}"

delaware/457844.json

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+"{\"id\": \"457844\", \"name\": \"John Conner, vs. Otho Pennington and Timothy Cummins\", \"name_abbreviation\": \"Conner v. Pennington\", \"decision_date\": \"1821-10-08\", \"docket_number\": \"\", \"first_page\": \"177\", \"last_page\": \"184\", \"citations\": \"1 Del. Ch. 177\", \"volume\": \"1\", \"reporter\": \"Delaware Chancery Reports\", \"court\": \"Delaware Court of Chancery\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T21:00:12.346752+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John Conner, vs. Otho Pennington and Timothy Cummins.\", \"head_matter\": \"John Conner, vs. Otho Pennington and Timothy Cummins.\\nNew Castle,\\nOct. 8, 1821.\\n(In vacation.)\\nThe defendant in a scire facias at law on a judgment, which had been entered under a warrant of attorney for the confession of judgment upon a bond, claimed to be allowed certain credits against the bond, which were disputed. By an entry on the docket of the scire facias, it was agreed between the parties that judgment should be confessed, ' with stay of execution for three months, the confession not to preclude any equitable relief the defendant might be entitled to in chancery. The present bill was filed by the defendant in the scire facias in order to obtain the benefit of the credits claimed by him against the judgment at law, the credits being for certain payments which he had made for the obligee in the bond in the course of settling the affairs of a former partnership between them. Held, That the defence against the bond being one which could have been eff dually made at law, a court of equity will not interfere.\\nNotwithstanding the judgment at law was entered under a warrant of attorney, relief could have been had at law against the judgment for payments and matters of discount. For, as to payments made upon the bond jp nor to the entry of judgment, the court of law was competent, to that extent, to vacate the judgment, on motion ; while payments and matters of discount accruing after judgment entered might have been pleaded in the scire facias.\\nThe Statute of 4 Anne, Ch. 16, Sec. 12, enabling a defendant in an action of debt or scire facias on a judgment to plead payment, in bar of such action, is in force in this State ; and such has been the practice.\\nIn the present case, in addition to the complainant\\u2019s right to discount or set off against the bond his alleged payments for the defendant, the complainant had his action for money paid, and in that view there was an adequate remedy without the aid of a court of equity.\\nBill eor an Injunction.\\u2014The case made by this bill was as follows :\\nThe complainant and the defendant, Pennington, hav ing been partners in the business of retailing goods, at Staunton, prior to the year 1816, under the firm of Otho Pennington & Co., dissolved the partnership by mutual consent in April of that year, and undertook to make a final settlement of the partnership transactions. Owing to the condition of some outstanding debts, including both debts due from and debts due to the firm, they were unable then to make a complete settlement. So, they made an adjustment exclusive of the debts. As the result of this adjustment, the complainant purchased Pennington\\u2019s share of the stock, for which he gave his judgment bond in the sum of $324.00, dated Dec. 25th, 1816. With respect to the outstanding debts it was agreed that the complainant should proceed to collect such as were due to the firm and to discharge its liabilities. He was to account to Pennington for one moiety of all the debts due to the firm which he should collect, subject to the usual commissions ; and for Pennington\\u2019s share of all debts from the firm, which should be paid by the complainant, the latter was to be credited on his judgment bond before mentioned. The bond contained an express stipulation to the effect that if the complainant (the obligor) \\u201cshould be compelled \\u201c to pay any portion of the debts due from the concern he \\u201c should be allowed a credit on his said bond for the proper \\u201c share of the said Pennington.\\u201d\\nThe judgment bond was afterwards assigned (though not in the form prescribed by the Statute in that behalf) to the other defendant, Timothy Cummins, for whose use a judgment was entered in the Court of Common Pleas for New; Castle County, in May, 1817. A scire fqcias upon the judgment was issued to the Dec. Term, 1819, to which the complainant, Conner, being the defendant in the scire facias, appeared and pleaded, giving notice that he should claim to be credited, against the judgment, the amount of Pennington\\u2019s share of certain debts of the partnership, which he, Conner, had paid. At the May Term of the Court of Common Pleas, 1821, the scire facias being called for trial, it was agreed, by an entry made upon the docket, that the pleas should be withdrawn and judgment entered for the plaintiff, with stay of execution for three months ; and it was expressly stipulated, in the entry on the docket, that the confession of judgment should not preclude the defendant in the scire facias (Conner) from any equitable relief he might be entitled to in chancery, and that the costs at law should abide the event of the cause in chancery, if the defendant should file his bill in chancery before the expiration of the three months stay, giving, security in the usual form, and should prosecute his suit in chancery with effect.\\nThe credits claimed by the complainant against the judgment were, $172.25, for Pennington\\u2019s share of certain debts of the partnership paid by the complainant, and $50.22, for sundry private debts of Pennington paid by the complainant at his request and for merchandise furnished to Pennington after the bond was given,\\u2014the whole of the credits amounting to $223.47. The bill alleged that Pennington\\u2019s share of the debts due to the firm, and collected by the complainant was the sum of $99.45 ;\\u2014that the amount of the bond, with interest to May 15th, 1818, was $331.55; which together with Pennington\\u2019s share of the debts collected ($99.45) made the gross sum of $431.00 ; that deducting therefrom the credits before stated ($223.47),and $10 claimed by the complainant for commissions, there would remain due upon the bond a balance of $197.53, which the complainant submitted himself as ready to pay.\\nThe complainant insisted, that he was entitled to the credits claimed by him, notwithstanding the assignment of the bond to the defendant, Cummins, because, as he believed and alleged, the payments for which he claimed the credit had been made by him prior to the date of the assignment; but at all events, he insisted that such pay ments had been made without notice of any assignment and upon the supposition that the bond was still held by Pennington; that subsequent to the making of the payments he had conversed with Pennington about the bond, and had received from him no intimation of his having .made any disposal of it.\\nThe bill further alleged, that the term of three months limited in the agreement entered upon the record of the scire facias for a stay of execution had been subsequently extended by consent of parties ; that such limitation was intended to apply only to the issuing of execution upon the judgment, and not to limit or affect any remedy the complainant might have in equity; \\u201c it being always understood that the matters of defence should be heard somewhere, and that it would conduce to the mutual interest of both parties that the subject should be fully investigated in the Court of Chancery.\\u201d The bill further alleged that on the 19th of September, 1821, a fieri facias had been issued upon the said judgment, which waspending at the filing of this bill, (October 8th, 1821.) The prayer was, that the defendants should be decreed to come to an account with the complainant with respect both to the monies paid and the monies collected by the complainant on account of the defendant, Pennington, and to allow as credits upon the said judgment all payments made by the complainant on account of said Pennington previous to his receiving notice of said assignment; and that the defendants should be compelled to accept, in satisfaction of the judgment and execution, whatsoever balance should be found due after crediting the complainant with such payments as aforesaid; and that upon the payment of such balance the judgment and execution should be decreed to be satisfied and a perpetual injunction awarded ; and for general relief, &e.\\nThe cause came before the Chancellor upon a motion for a preliminary injunction.\\nMcLane, for the complainant.\", \"word_count\": \"2684\", \"char_count\": \"15033\", \"text\": \"The Chancellor\\nrefused to order the writ of injunction, and assigned the following reasons :\\nThe ground upon which a writ of injunction issues is, that the party is making use of the jurisdiction of a court of law, contrary to equity and good conscience; and it is commonly suggested in the bill, that the complainant, for some reasons therein stated, is not able to make his defence in such court, though he has a good discharge in equity; or that the court refuses some rightful advantage, or does injustice to him in the proceeding, or has not power to do him right. 1 Atk. 515, Hill vs. Turner : 1 Mad. Ch. Pr. 109 : Wyatt's, Pr. Regr. 232. In this case, it is not even pretended that the complainant could not make a defence at law, but only that when the scire facias was called up for trial, it was considered to be the mutual interest of both parties that the matters of defence in the said cause should be heard and investigated in this Court. What advantage either party could have by proceeding in equity, which he could not have at law according to the practice in this State, is not to be conceived. It appears by the bill, that the bond is dated December 25th, 1816, and that judgment was entered by warrant of attorney in the Court of Common Pleas for Hew Castle county, on the 15th of May, 1818. Between the date of the bond and the date of the judgment all the payments of money by Conner, claimed by him as credits upon the bond, and also the sale of the merchandise to Pennington, had been made; and the defendant had no notice of the assignment of the bond to Timothy Cummins until the service of the writ of scire facias in the winter of 1819. The judgment was entered for the use of Timothy Cummins, and consequently the bond was not assigned according to the form of the Act of Assembly. There could then be no objection to pleading any discount on account of the assignment, because the complainant had no notice of the assignment. So it was understood by the complainant's counsel; for he pleaded to the scire facias and gave notice of the discount.\\nBut it may be said that this was ajudgment entered by a warrant of attorney and that the defendant could, at law, plead nothing in bar which might be pleaded to an original action; that this being a judgment without writ, nothing could be pleaded in bar at law, and that the party could have a remedy in equity only. As to all payments and matters of discount which accrued before the 15th of May, 1815, the date of the judgment, the Court, according to Cooke vs. Jones, Cowper 727, would have interposed on a motion to vacate the judgment, and would have afforded a relief which the party could not otherwise have had. 2 Str. 1043 : Cas. temp. Hard. 233 : Cro. El. 588 . 1 Sid. 182. The only difficulty which this part of the case offers is whether the payments and discounts which accrued after the date of the judgment could be pleaded in bar to this scire facias. In Hartzell vs. Reiss, 1 Binney, 289, the Court doubted whether, in England, the party in such a case could have any relief in a court of law. He certainly might, it was said, in equity. But there is no good reason why the Court might not.interpose in the one case as in the other. In Cooke vs. Jones, where the defence arose before the judgment, Lord Mansfield said, the party had no opportunity of pleading unless the Court interposed. If, then, the party could not plead, and the Court was compelled to interpose for the sake of justice, why should not the Court in this case afford the party relief by allowing him to plead according to the state of the transaction ? By the Stat. 4 Ann. c. 16, sec. 12, it is enacted that \\\" where \\\" any action of debt shall be brought upon any single bill, \\\" or where an action of debt or scire facias shall be brought \\\" upon any judgment, if the defendant hath paid the money \\\" due upon such bill or judgment, such payment shall and \\\" may be pleaded in bar of such action or suit.\\\" By this Statute, which is the Act for the amendment of the law, and the better government of justice, and is in force in this State, the defendant at law, might well plead payment of this judgment. Before this Statute payment was no plea to a debt upon record, because a payment being against matter of record cannot be a discharge unless by matter of record. Cro. Car. 328 : 5 Com. Dig. 782, Pleader (3 L. 12.) It is, I believe, the constant practice, in the courts of law in .this State, to plead to a scire facias payment, or any other plea which goes to show that the debt is satisfied, or that the party should not have execution. However this may be, it is not pretended that the complainant could not make a defence at law ; and no ground is laid in the bill to show that this Court ought to interpose, as that the complainant is deprived of some rightful advantage at law, or that injustice will be done him, or that the court at law has not power to do him right.\\nThere is, though, a stronger objection. This bill is not brought for the settlement of a partnership concern. Every thing seems to have been adjusted (debts due to and from the partners excepted) and Conner fell in debt to Pennington, including Pennington's share of the goods and stock in trade, in the sum of $324, for which he gave his judgment bond. Conner was to pay and collect the debts. Then, as to all money received, Conner was liable to Pennington for a moiety '; and for debts paid,Pennington was liable to Conner in the same proportion. Conner also claims commissions. Conner alleges that he paid, at the request of Pennington, debts of Pennington to several persons, and sold him goods before the assignment of the bond, amounting in all to $50.22. These make a fair claim, against Pennington, for which Conner, either by way of set off or in an action for money paid, &c., for the use of Pennington and for goods sold, may have a remedy at law. Conner collected debts, but paid away more than he collected, so that for a moiety of the excess of payments, Pennington would be liable to him. For this sum, then, Conner can have no difficulty. He has the proof all in his own hand, and has no necessity of applying to chancery for relief. And so, as to the commissions, if he is entitled to any, all which could be settled in a court of law. How there is not an allegation made of any fact as to which Conner is not in possession of the proof., The whole may be settled at law. If this Court were to sustain the present bill, all cases of payment, set off,release and discharge of all kinds, might with equal propriety be brought here for adjustment. This is not a bill for an account between- partners; but merely to obtain a credit by way of set off for matters entirely within the knowledge of the complainant, the proof of which is also in his power. The party might, on the issue joined in the court of law, have had a complete remedy at law, and therefore the writ of injunction should not be awarded. See l Mad. Ch. Pr. 69, 70 : 6 Vesey Jr., 136, Dinwiddie vs. B ailey.\\nThe injunction is refused.\"}"

delaware/472650.json

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+"{\"id\": \"472650\", \"name\": \"John A. Green and Joseph Green by their next friend Margaret S. Green. vs. Vincent O. Hill\", \"name_abbreviation\": \"Green v. Hill\", \"decision_date\": \"1866-06\", \"docket_number\": \"\", \"first_page\": \"92\", \"last_page\": \"93\", \"citations\": \"3 Del. Ch. 92\", \"volume\": \"3\", \"reporter\": \"Delaware Chancery Reports\", \"court\": \"Delaware Court of Chancery\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-11T00:22:19.871547+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John A. Green and Joseph Green by their next friend Margaret S. Green. vs. Vincent O. Hill.\", \"head_matter\": \"John A. Green and Joseph Green by their next friend Margaret S. Green. vs. Vincent O. Hill.\\nNew Castle, At Chambers,\\nJune 1866.\\nAttachment for contempt at Chambers and defendant imprisoned for refusal to produce an indentured servant, at the hearing of a petition to discharge the indentures.\", \"word_count\": \"415\", \"char_count\": \"2528\", \"text\": \"Petition to discharge indentures of apprenticeship. ATTACHMENT FOR CONTEMPT. \\u2014 This was a petition for the discharge of the indentures of apprenticeship under which the petitioners were bound to the respondent. On the 30th day of June the process being returnable to the Chancellor, at Chambers, the respondent was present and John A. Green one of the petitioners was also present, but the other petitioner Joseph Green was not produced by the respondent. After a hearing npon petition, exhibits and oral examination of witnesses, upon application of the respondent, the further hearing was adjourned until Wednesday the 5th of July then next, and it was ordered that the respondent should produce the said Joseph Green before the Chancellor at that time. On the 5th of July the respondent failed to appear and said Joseph Green was not produced,whereupon, on application of T. F. Bayard, for the petitioners, an attachment for contempt was issued against the respondent for not obeying the order of the Chancellor for the production of the said Joseph Green, said attachment being made returnable on the 14th of July at Chambers. At that time the respondent appeared in custody of the sheriff, having been arrested under the attachment, and declined to make any further defense, whereupon the Chancellor further heard the complaint and made an order annulling the indentures and discharging the petitioners therefrom, the respondent to pay the costs. The Chancellor also made an order, reciting the refusal of the respondent to produce the said Joseph Green, adjudging him guilty of a contempt of the authority of the Chancellor in the cause and committing him to the custody of the sheriff for fifteen days.\\nNote. The Statute Revised Code, Ch. yg. Sec. 16 enumerates the orders which may be made by the Chancellor or Judge in such cases, and adds that \\\" any such order,\\\" may be enforced by attachment and imprisonment. The precise order, to produce the servant, made in this case is not among those enumerated. The case is therefore one of the enforcement, by attachment, of an order, not mentioned in the statute, but only incidental to a purely statutory jurisdiction, and the punishment of the disobedience of it by imprisonment.\"}"

delaware/474544.json

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+"{\"id\": \"474544\", \"name\": \"Mercantile Trading Company, a corporation of the State of Illinois, vs. Rosenbaum Grain Corporation, a corporation of the State of Delaware\", \"name_abbreviation\": \"Mercantile Trading Co. v. Rosenbaum Grain Corp.\", \"decision_date\": \"1931-08-08\", \"docket_number\": \"\", \"first_page\": \"167\", \"last_page\": \"170\", \"citations\": \"18 Del. Ch. 167\", \"volume\": \"18\", \"reporter\": \"Delaware Chancery Reports\", \"court\": \"Delaware Court of Chancery\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T23:38:59.834363+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Mercantile Trading Company, a corporation of the State of Illinois, vs. Rosenbaum Grain Corporation, a corporation of the State of Delaware.\", \"head_matter\": \"Mercantile Trading Company, a corporation of the State of Illinois, vs. Rosenbaum Grain Corporation, a corporation of the State of Delaware.\\nNew Castle,\\nAug. 8, 1931.\\nGeorge N. Davis, for complainant.\\nHugh M. Morris, for defendant.\\nAaron Finger, of the firm of Richards, Layton & Finger, for intervenors.\", \"word_count\": \"942\", \"char_count\": \"5329\", \"text\": \"The Chancellor:\\nReference is made to an opinion handed down on last April 28 for the facts necessary to an understanding of the case. In that opinion I declined to pass upon the pending motion to dismiss, because of doubts upon a question of procedure. The parties have since agreed that the motion might be heard and disposed of on the affidavits already on file and it was stated by each party that no further evidence was desired to be submitted.\\nThe procedural question is thus removed from the case and I accordingly proceed to dispose of the motion.\\nThe bill seeks to enjoin the defendant from allowing the intervenors to enjoy a right of inspection which they say they are entitled to enjoy and which in fact the defendant through its board of directors has signified its assent to. The complaining stockholder is a corporation. The uncontradicted evidence now. before the court is that Emanuel F. Rosenbaum is president, Edwin S. Rosenbaum, vice-president, S. J. Spain, secretary, L. T. Sayre, assistant secretary, and L. Nairn, treasurer, of the defendant corporation, and that the same persons hold similar offices in the complainant corporation. All of the persons just named, except Spain, are members of the board of directors of the defendant. They compose four of the seven directors of the defendant. The complainant owns all the common stock of the defendant. All the stock of the complainant corporation is owned by the two Rosenbaums above mentioned and their wives, except a few shares which are owned by other close relatives of the Rosenbaums and a few more that are held by employees of the defendant corporation for the purpose of qualifying them as officers and directors of the complainant. The officers of the complainant corporation are as already stated the officers of the defendant, and the directors of the complainant corporation are the two Rosenbaums and salaried employees of the defendant corporation.\\nI think there can be no doubt but that the same persons who control the complainant control also the defendant.\\nWe have therefore a case where the management of the complainant has instituted a suit to restrain the carrying out of a proposed action by the defendant, when the management of the defendant which has resolved to take it is in substance the same in personnel as that of the complainant which seeks to stop it. The proposed action consists in the opening of books to inspection by stockholders of the defendant who are not parties to the suit. The rights of strangers to the litigation are thus sought to be affected by a suit to which they are not parties. The parties to the suit who, if it proceeds, will litigate the rights of the third persons, are really not adversary parties in the true sense of the word. The identity of the controlling interests and management in the complainant and defendant is not seriously questioned. Stripping the case of the formal appearances which the fiction of corporate personality creates, a case is revealed in which a set of men in one role sue to restrain themselves in another role from recognizing certain rights of third parties which in that other role they were free to contest. It is much as if a man were to sue to enjoin himself from doing something with respect to the rights of others which he had resolved to do and which he need not have resolved to do.\\nWhere the rights of a third party are alone involved in the outcome of a suit in which the adversaries are such only in form and where they are manifestly in harmony in opposition to the third, it can hardly be said that a genuinely litigious controversy is pending. In the opinion heretofore filed by me in this cause (17 Del. Ch. 325, 331, 154 A. 457, 460) I used the following language:\\n\\\"There seems to be no doubt upon the general proposition that a person who is not a party to a cause but who may be affected by its determination,\\\" is entitled to an opportunity to present to the court a motion to dismiss on the ground that the formal parties to it are not in fact adversary litigants, and that they are acting in concert to secure a result injurious to him.\\\"\\nThe case cited by me in support of this right of the third party to move for a dismissal sustains also his right to obtain it in such a case.\\nI conclude that the movers in this case have shown enough to warrant the granting of their motion to dismiss.\\nThe complainant cites cases to the effect that the fact that two corporations have directors or other officers in common does not of itself prevent one from maintaining an action at law against the other and that a judgment rendered in such an action is valid if free from fraudulent conduct on the part of the officers who procured the judgment. If this principle be conceded, I do not see how it is applicable here, for in the instant case the decree sought is one that is aimed at the rights of a third person who is not only not present as a party but who is not even named as one.\\nThe motion to dismiss will be granted. Decree accordingly.\"}"

delaware/476796.json

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+"{\"id\": \"476796\", \"name\": \"Samuel B. Field, Edward W. Pyle and Allan Sauerwein, vs. Layton & Layton, Incorporated, a corporation of the State of Delaware, Charles L. Horsey, Solomon S. Kenney, Albert H. Phillips, Victor I. Records, Administrator of the estate of William T. Records, deceased, George W. Ward, T. J. Waller, Orlando V. Wooten, The Selbyville Bank, a corporation of the State of Delaware, Thomas F. Cottinham, William J. Highfield and Industrial Trust Company, a corporation of the State of Delaware\", \"name_abbreviation\": \"Field v. Layton & Layton, Inc.\", \"decision_date\": \"1928-05-02\", \"docket_number\": \"\", \"first_page\": \"135\", \"last_page\": \"146\", \"citations\": \"16 Del. Ch. 135\", \"volume\": \"16\", \"reporter\": \"Delaware Chancery Reports\", \"court\": \"Delaware Court of Chancery\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T19:56:07.653283+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Samuel B. Field, Edward W. Pyle and Allan Sauerwein, vs. Layton & Layton, Incorporated, a corporation of the State of Delaware, Charles L. Horsey, Solomon S. Kenney, Albert H. Phillips, Victor I. Records, Administrator of the estate of William T. Records, deceased, George W. Ward, T. J. Waller, Orlando V. Wooten, The Selbyville Bank, a corporation of the State of Delaware, Thomas F. Cottinham, William J. Highfield and Industrial Trust Company, a corporation of the State of Delaware.\", \"head_matter\": \"Samuel B. Field, Edward W. Pyle and Allan Sauerwein, vs. Layton & Layton, Incorporated, a corporation of the State of Delaware, Charles L. Horsey, Solomon S. Kenney, Albert H. Phillips, Victor I. Records, Administrator of the estate of William T. Records, deceased, George W. Ward, T. J. Waller, Orlando V. Wooten, The Selbyville Bank, a corporation of the State of Delaware, Thomas F. Cottinham, William J. Highfield and Industrial Trust Company, a corporation of the State of Delaware.\\nNew Castle,\\nMay 2, 1928.\\nRobert H. Richards and Aaron Finger and George W. Lindsey, of Baltimore, Md., for complainants.\\nHenry R. Isaacs and Charles C. Keedy, for Industrial Trust Company.\", \"word_count\": \"3818\", \"char_count\": \"21817\", \"text\": \"The Chancellor.\\nThe demands of the complainants are purely legal demands, two of them being upon promissory notes held by Field and Pyle respectively and the third being Upon a claim for legal services rendered by Sauerwein. Certainly a court of law is the ordinarily appropriate forum in which to seek satisfaction of such demands.\\nA court of equity has no jurisdiction to entertain suits for the enforcement of purely legal claims unless their' attempted assertion can be brought under some one of the recognized heads of equitable cognizance. Our statute provides that the Court of Chancery \\\"shall not have power to determine any matter wherein sufficient remedy may be had by common law, or statute, before any other Court, or jurisdiction, of this State.\\\" Revised Code 1915, \\u00a7 3844. The only particular in which the complainants contend the law courts are incapable of affording to them a sufficient remedy consists, not in the inability of those courts to grant a remedy, but in their inability to do so without resort to a great multiplicity of suits. This being so, they contend, the Court of Chancery may with perfect propriety assume jurisdiction over the matters in controversy notwithstanding the typically legal character of the claims.\\nThe jurisdictional ground upon which the complainants rely therefore in support of their bill is the familiar and much discussed one of the power of equity to entertain bills in order to save litigants from the burden or vexatious annoyance of a multiplicity of suits.\\nThe jurisdiction of equity in proper cases to entertain bills whose sole purpose is to settle controversies which, but for equity's intervention, would result in a great multiplicity of suits at law-is -unquestioned. This court has recognized the jurisdiction,though in the case cited its exercise was denied under the particular facts shown. Equitable G. & T. Co. v. Donahoe, 8 Del. Ch. 422, 45 A. 583. In P. W. & B. R. R. Co. v. Neary, 5 Del. Ch. 600, 8 A. 363, the jurisdiction rested on an avoidance of a multiplicity of suits. The Court of Errors and Appeals in Murphy, et al., v. Wilmington, 6 Houst. 108, 22 Am. St. Rep. 345, said that \\\"equity will interpose, in a proper case, to prevent a multiplicity of suits, excessive litigation, or circuity of action.\\\"\\nThe jurisdiction is therefore well settled in this State as well as elsewhere. But when is the case a \\\"proper\\\" one for the exercise of the jurisdiction? The answer to that question, if thorough, would lead to a laborious examination of the authorities and a lengthy discussion of' their rulings, and, in the end, conflict upon some phases of the question would be left in hopeless irreconcilability. Pomeroy in Section IV of his first volume of Equity Jurisprudence, (4th Ed.) has discussed the whole subject in his characteristically learned manner and his treatment of it demonstrates the confusion found in the cases dealing with it. He has succeeded, however, in deducing from the mass of authorities certain general principles upon which no substantial disagreement in judicial opinion exists. He mentions four classes of cases in which bills to prevent a multiplicity of suits fall. 1 Pomeroy's Equity Jurisprudence, (4th Ed.) \\u00a7 245. The first two classes are where two individual parties are concerned and they are as follows: 1. Where the same individual, in order to secure full relief at law, would be obliged to bring a number of actions against the same wrongdoer all growing out of the same wrongful act and involving similar questions of law and fact. Cases of nuisance, waste and continued trespass illustrate this class. 2. Where B. institutes, or is about to institute, a number of suits either successively or simultaneously against A., all depending upon the same legal questions and similar issues of fact, and A. by a single equitable action seeks to bring them all within the scope and effect of one judicial determination. Cases of repeated actions of ejectment fall within this class.\\nPomeroy's next two,- the third and fourth, classes embrace cases where numerous parties are present on one side of the suit either as complainants or defendants. They are:\\n\\\"3. Where a number of persons have separate and individual claims and rights against the same party, A., but all arise from some common cause, are governed by the same legal rule, and involve similar facts, and the whole matter might be settled in a single suit by all these persons uniting as co-plaintiffs, or one of the persons suing on behalf of the others, or even by one suing alone. Th.e case of several owners of distinct parcels of land upon which the same illegal assessment or tax has been laid is an example of this class.\\n4. Where the same party, A., has or claims to have some common right against a number of persons, the establishment of which would regularly require a separate action brought by him against each of these persons, or brought by each of them against him, and instead thereof he might procure the whole to be determined in one suit brought by himself against all the adverse claimants as codefendants.\\\"\\nInto the classifications thus arranged by Mr. Pomeroy all the reported cases sustaining the jurisdiction of equity to prevent a multiplicity of suits may be fitted and his language descriptive of each class contains about as accurate a definition of the general features of each class as one may hope to be able to formulate. Of course such general language needs to be greatly amplified in order to convey a more intimate view of the whole subject with its various refinements and specific applications.\\nLooking at the case in hand, it is apparent that it lies entirely outside the first two classes. If the case is maintainable at all as one to prevent a multiplicity of suits, it falls within the third and the fourth classes named by Mr. Pomeroy, though it is not precisely like either of them, for here there is neither a number of persons suing an individual nor an individual suing a number. This is a case where a number are suing a number.\\nBut the circumstance of a number suing a number cannot of itself alone, I conceive, render inapplicable the doctrine upon which the jurisdiction to prevent a multiplicity of suits rests, if otherwise all the essentials of the jurisdictional requirements are present.\\nAre all the essentials present in this case? In answering this question I shall turn first to the complainants' side of the case and having examined it from that angle turn next to the side of the defendants to see how the matter appears from that angle.\\nFirst then are all the essential requirements present on the side of the complainants? With respect to them, we have three complainants, each of two of them holding a promissory note and one of them possessing a claim for legal services. The three claims have nothing in common, unless indeed the fact that the debtor in each case is the same person or group of persons can be said to constitute a thing common to all of them within the meaning of the phrase as used in connection with the doctrine of multiplicity of suits, a point of view which no court has ever advanced. Certainly if a number of persons have separate and distinct legal claims against the same debtor, the fact that the debtor is common to all the creditors cannot alone justify equity in drawing the one debtor within its domain in order that his several creditors may all sue him at the same time. The individual claims of the complainants must, in the language of Mr. Pomeroy's description of the third class, all arise from some common cause, be governed by the same legal rules and involve similar facts. The three claims represented by the complainants neither arise from a common cause, nor are they governed by the same legal rules, nor do they involve similar facts. Even if the cause of action in the case of each complainant were clearly equitable in nature instead of purely legal, a joining of them in one bill would offend against the rule against multifariousness in pleading, so diverse and unrelated are they. What is here being sought is to consolidate in equity three causes of action at law and in one piece of equitable litigation, carry on three separate, distinct and entirely unrelated lawsuits, which means the drawing of three separate issues to be tried at once, upon evidence separately applicable to each and eventuating in three separate decrees put in the form of one, granting or denying to each complainant relief on his particular claim. I should be greatly surprised if any case were found anywhere justifying such a procedure.\\nLooking at the case from the side of the complainants, therefore, the demurrer must be sustained. Gulf & S. I. R. Co. v. Barnes, 94 Miss. 484, 48 So. 823; Hamilton v. Alabama Power Co., 195 Ala. 438, 70 So. 737; Marselis, et al., v. Morris Canal, etc., Co., 1 N. J. Eq. 31; Van Auken v. Dammeier, 27 Or. 150, 40 P. 89; International Paper Co. v. Bellows Falls Canal Co., 88 Vt. 93, 90 A. 943; Southern Steel Co. v. Hopkins; 174 Ala. 465, 57 So. 11, 40 L. R. A. (N. S.) 464, Ann. Cas. 1914B, 692; Roanoke Guano Co. v. Saunders, et al., 173 Ala. 347, 56 So. 198, 35 L. R. A. (N. S.) 491; St. Louis, I. M. & S. R. Co. v. McKnight, 244 U. S. 368, 37 S. Ct. 611, 61 L. Ed. 1200; Newton Oil & Mfg. Co. v. Sessum, et al., 102 Miss. 181; 59 So. 9.\\nIt would be proper to conclude this opinion at this point. But inasmuch as the question has been argued and will in all probability arise later on, whether one of these complainants can maintain a bill against all of the defendants on the theory that he is entitled to do so in order that a multiplicity of suits may be avoided, I may as well proceed to consider whether, if there were no objection to the bill on the score of the inability of the complainants as a group to sue, the bill might be sustained as against the defendants by one alone of the complainants.\\nSecond, then, are the requirements essential for an assertion of the jurisdiction present by reason of anything peculiar to the liability and the situation of the defendants?\\nThe complainants assert in their bill that the defendants are jointly and severally liable. They assert that one hundred and forty-four law suits will be necessary for them to collect their debts. Why this is so is not made clear. The bare assertion is made. It certainly cannot be true if each complainant is required, as above indicated, to sue separately. If so, taking the complainants' assertion at full value, it would mean at the outside not one hundred and forty-four law suits, but rather one-third as many, or forty-eight for each party whether he sues in law or equity. But no such number of suits as that would be necessary unless the individual creditor elected to sue each defendant severally. Here in Delaware where only twelve of the bondholders are located, even separate suits based on a liability in severalty could not number over twelve. Of course in so far as the trouble to each of the complainants in bringing numerous suits may be due to the residence in different states of the debtors and to the consequent necessity of resort to different jurisdictions, multiplicity of suits cannot be avoided regardless of what tribunal is appealed to, whether one of law or of equity. In considering this aspect of the demurrer, therefore, I think of the case in terms only of the defendants located in the jursidiction of Delaware who are within the reach of its courts, for no court in Delaware could by any possibility do anything by way of preventing a multiplicity of suits in so far as the necessity for such multiplicity is occasioned by the residence of parties beyond the jurisdiction.\\nLooking at the matter then as though the numerous actions at law which it is sought by this bill to prevent are actions against Delaware defendants it appears that, if one of the complainants desired to assert his claim in a law action on the ground of a several liability, twelve actions at law would be the outside limit instead of one hundred and forty-four as claimed.\\nThis to be sure is a number large enough to impose trouble on the suing creditor. It cannot be said that twelve can be called a multitude. Even if it could, the jurisdiction of equity to bring all twelve of them within its processes for adjudication would not by reason of multitude alone be made out, for as observed by Wales, J., in Murphy, et al., v. Wilmington, supra, speaking for the Court of Errors and Appeals, \\\"multiplicity does not mean multitude, and equity will not interfere where the object is to obtain a consolidation of actions, or to save the expense of separate actions.\\\" Mr. Pomeroy in section 251\\u00bd of volume 1 of the Fourth Edition of his work on Equity Jurisprudence expresses and elaborates the same principle. His text is full and abundant reference to the cases in support thereof is to be found in his notes. I quote the following from the section referred to as particularly apt:\\n\\\" There must be some common relation, some common interest, or some common question in order that the one proceeding in equity may really avail to prevent a multiplicity of suits. The equity suit must result in a simplification or consolidation of the issues; if, after the numerous parties are joined, there still remain separate issues to be tried between each of them and the single defendant or plaintiff, nothing has been gained by the court of equity's assuming jurisdiction. In such a case, 'while the bill has only one number upon the docket and calls itself a single proceeding, it is in reality a bundle of separate suits, each of which is no doubt similar in character to the others, but rests nevertheless upon the separate and distinct liability of one defendant' in cases resembling those of the fourth class, or upon the separate and distinct liability of one plaintiff in cases resembling those of the third class. In refusing to entertain these spurious bills of peace, courts of equity impose no real limitation upon their jurisdiction, which, by its very definition, exists not because of multiplicity of suits, but to avoid them, when their rules of procedure can avail to that purpose; indeed, they merely apply to bills of this character the ordinary rules of equity pleading relating to multifariousness.\\\"\\nFrom the nature of the causes of action held by each of these complainants it would seem obvious that there must be as many issues as there are defendants and a \\\"simplification or consolidation of the issues\\\" presented by them all would be impossible. See the cases cited by Pomeroy in section 251\\u00bd and particularly those cited by him in the note on page 416.\\nWhat has just been said is predicated on the theory that an individual complainant if he sued at law would be required to bring twelve separate suits against these defendants. If he did so, it would be because he chose to do so on the theory that their liability is several. But if as his bill alleges the liability is not only several but joint, the claimant would not be required to proceed at law in twelve separate actions. He could sue in one action. Cunningham v. Dixon, 1 Marv. 163, 41 A. 519; Jackson v. Hedges, 4 Har. 96; Reybold v. Parker, 6 Houst. 544. The last case, though reversed, was reversed on other grounds. If this be so, it is apparent that one action at law, not many, is available to each of the complainants to secure ample relief against all the defendants, and therefore in this aspect of the matter no occasion whatever exists for a resort to equity because of a possible multiplicity of suits.\\nIt \\u00abmight be suggested that if a complainant should proceed on the theory of a joint liability and bring one action at law against all the bondholders, taking judgment however against only the twelve Delaware defendants who were served in accordance with the rule laid down in the cases supra from 1 Marvel, 4 Harrington and 6 Houston, he would be confronted by the result that if he thus took judgment, his right of action against the absent co-contractor defendants would be merged in the judgment and gone forever, as indicated by the Chancellor, speaking for the Court of Errors and Appeals in Reybold v. Parker, 7 Houst. 526, 32 A. 981; and that in the light of such a result the complainant's right to remain in equity ought not to be tested by the circumstance that he could proceed in one suit at law to obtain judgment against some of the joint debtors.\\nTo this, the following is to be said: The case in which the doctrine of merger of the cause of action into the judgment was applied by the Chancellor speaking for the Court of Errors and Appeals was. one where the absent defendant was so far as appears not a non-resident and the sole question was whether the statute of limitations was interrupted in its running until such time as the absent defendant came within the jurisdiction. Where a Cause of action is joint, and the parties liable under it are residents of different states, it is obvious that it would be impossible in many of such cases for the creditor to find a jurisdiction in which all of his joint debtors could be found and served with process. If the common law doctrine of merger should be held to apply with all of its rigidity in every such case, it would necessarily follow that a joint claim against several debtors, some resident in the jurisdiction and others non-resident, would often be turned by the doctrine into a claim against only one or a few of them. If such be the law, an illustration is found where the substantial merits of justice are made to yield to the law's slavish devotion to theory. I cannot believe that the Court of Errors and Appeals meant, in the case referred to, to give to the common law doctrine any such application. Courts elsewhere have refused to allow the doctrine to work an injustice of the kind referred to and have- accordingly found exceptions to its application. One of the most familiar of these exceptions is that \\\"where a creditor bringing suit upon a joint obligation is unable to get service .upon some of the obligors because they are beyond the jurisdiction in which he is acting, his judgment there recovered will not be regarded as a bar against the obligors not served, where he is able.to obtain jurisdiction over them in some other forum.\\\" Crehan v. Megargel, 234 N. Y. 67, 136 N. E. 296, citing in support of its language, Brown v. Birdsall, 29 Barb. (N. Y.) 549; Third Nat. Bank v. Graham, 174 App. Div. 503, 161 N. Y. S. 159; Campbell v. Steele, 11 Pa. 394; Nat. Bank v. Peabody, 55 Vt. 492, 45 Am. Rep. 632: Wood v. Watkinson, 17 Conn. 500, 44 Am. Dec. 562; Merriman v. Barker, 121 Ind. 74, 22 N. E. 992; Rand v. Nutter, 56 Me. 339; Tibbetts v. Shapleigh, 60 N. H. 487; Yoho v. McGovern, 42 Ohio St. 11; Bradley Eng., etc., Co. v. Heyburn, 56 Wash. 628, 106 P. 170, 134 Am. St. Rep. 1127; Beck & Pauli Lith. Co. v. Wacker, etc., Co. (C. C. A.) 76 F. 10. See, also, Larison v. Hager (C. C.) 44 F. 49; Cox v. Maddux, 72 Ind. 206; West v. Furbish, 67 Me. 17; Dennett v. Chick, 2 Greene. (Me.) 191, 11 Am. Dec. 59.\\nIf an exception to the common law rule lies, as the cases cited hold, it therefore follows that each of these complainants, even though they proceed on the theory of a joint debt, need bring only one suit in the law courts of this State in order to obtain judgment against all the defendants resident here, without incurring the consequences of having to forego their rights of action against the non-residents.\\nIf, as suggested by the solicitor for the complainants, one action should thus be brought at law against all of the defendants on the theory of a joint liability, and any judgment obtained should be paid by one of the defendants, the one paying would be driven to suits to collect from his co-defendants their proper proportions of the joint debt and a multiplicity of suits would thus be entailed upon the defendants, it does not follow that this bill should be retained in order to avoid that result. I say this for the following reasons: It would seem that the multiplicity of suits thus sought to be avoided could hardly be of. any concern to the complainants, for such multiplication of litigation could in no wise be annoying or burdensome or vexatious to the complainants. It would be a matter of concern solely to the defendants. That sort of thing is what any joint debtor assumes the risk of being bothered with when he assumes a joint obligation. In such cases, furthermore, the law courts are provided with ample machinery to afford adequate relief by requiring an assignment by the plaintiff of the joint judgment to the paying defendant who may have execution against his co-defendants for their proportionable part of the debt. Revised Code 1915, \\u00a7 2905.\\nWhether, therefore, the defendants are to be regarded as severally liable to the complainants or jointly so, the same result follows, that no case is presented falling within the recognized principles which justify a court of equity in taking cognizance of purely legal demands in order to prevent a multiplicity of suits\\nThe demurrer will be sustained.\"}"

delaware/477587.json

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+"{\"id\": \"477587\", \"name\": \"Helen G. Wilson, Guardian of Margaret Gregg Wilson, vs. Wilmington Trust Company, Trustee by appointment of the Chancellor of Delaware, under the will of James Wilson, deceased\", \"name_abbreviation\": \"Wilson v. Wilmington Trust Co.\", \"decision_date\": \"1925-05-22\", \"docket_number\": \"\", \"first_page\": \"389\", \"last_page\": \"391\", \"citations\": \"14 Del. Ch. 389\", \"volume\": \"14\", \"reporter\": \"Delaware Chancery Reports\", \"court\": \"Delaware Court of Chancery\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T18:11:09.601306+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Helen G. Wilson, Guardian of Margaret Gregg Wilson, vs. Wilmington Trust Company, Trustee by appointment of the Chancellor of Delaware, under the will of James Wilson, deceased.\", \"head_matter\": \"Helen G. Wilson, Guardian of Margaret Gregg Wilson, vs. Wilmington Trust Company, Trustee by appointment of the Chancellor of Delaware, under the will of James Wilson, deceased.\\nNew Castle,\\nMay 22, 1925.\\nWilliam F. Kurtz, for the complainant.\\nWilliam S. Hilles, for the defendant;\", \"word_count\": \"558\", \"char_count\": \"3294\", \"text\": \"The Chancellor.\\nThis case is dissimilar to the case of Commonwealth Title Ins. & Trust Co. v. Equitable Trust Co., decided by this court and reported ante p. 348, not only in the language of its bequest, but in these two important particulars, viz., first, in that case the relation between the testator and the legatee was that of parent and child, whereas here the relationship is that of uncle and niece; and second, in that case the legatee was totally without any means of support other than what the parent had bequeathed, whereas here the legatee has other property which is immediately available for her needs.\\nIt is not necessary for me to turn the decision in this case upon the first consideration, for what follows in the next paragraph is sufficient in itself to dispose of the matter. This, however, is to be said, that very considerable and highly respectable authorities hold that a direction for the accumulation of income will not be diregarded unless the relationship between the testator and the beneficiary is that of parent and child or of persons standing in loco parentis towards the legatee. Crickett v. Dolby, 3 Ves. Jr. 10; Mole v. Mole, 1 Dick. 310; Green v. Belchier, 1 Atk. 505; Harvey v. Harvey, 2 P. Wms. 21; Lowndes v. Lowndes, 15 Ves. Jr. 301; Perry on Trusts, Vol. 2, par. 616 (6th Ed.).\\nThe consideration here, however, which is conclusive of the matter is that the minor's situation is not such as to make it necessary, in order to save the beneficiary from ignorance and want, to disregard the testator's direction that the income be accumulated. No present need is shown, because it appears from the facts that the guardian now has available about thirty-six hundred dollars in cash or securities. If the income from this is not sufficient for the ward's maintenance and education, I entertain no doubt that the Orphans' Court would authorize an encroachment upon the principal. It may be true that it would make no great difference to the minor whether money for her maintenance and support comes out of her present funds or out of the legacy which will eventually come to her from her uncle's estate. That is not the point. It will make a difference in the faithfulness with which the testator's wishes are carried out. Courts have gone far enough in cases of this kind in disregarding the apparent, at least the literal, language of testators who have left behind them instructions concerning the disposition of their property. Finding nothing in the facts here presented which, so far as I am advised, no authority would suggest \\\"as warranting the immediate expenditure of the income, it follows that the bill must be dismissed.\\nIn view of the foregoing it is not necessary to discuss the significance of that portion of the bequest which refers to the possibility of the legatee's becoming \\\"crippled or helpless\\\" as the only possibility upon which the testator desired the direction for accumulation to be disregarded.\\nLet a decree be submitted in accordance herewith.\"}"

delaware/488243.json

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+"{\"id\": \"488243\", \"name\": \"George E. Gronemeyer, vs. Hunter Manufacturing Corporation, a corporation of the State of Delaware\", \"name_abbreviation\": \"Gronemeyer v. Hunter Manufacturing Corp.\", \"decision_date\": \"1954-10-28\", \"docket_number\": \"\", \"first_page\": \"1\", \"last_page\": \"4\", \"citations\": \"35 Del. Ch. 1\", \"volume\": \"35\", \"reporter\": \"Delaware Chancery Reports\", \"court\": \"Delaware Court of Chancery\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T21:16:40.232695+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"George E. Gronemeyer, vs. Hunter Manufacturing Corporation, a corporation of the State of Delaware.\", \"head_matter\": \"George E. Gronemeyer, vs. Hunter Manufacturing Corporation, a corporation of the State of Delaware.\\nNew Castle,\\nOctober 28, 1954.\\nJohn M. Bader, Joseph A. L. Errigo, Wilmington, for plaintiff.\\nJames R. Morford, Ernest S. Wilson, Jr., of Morford & Bennethum, Wilmington, and Robert R. Thornton, of Dorr & Hand, New York City, for defendant.\", \"word_count\": \"1073\", \"char_count\": \"6463\", \"text\": \"Seitz, Chancellor:\\nSince the court filed its opinion in this case, Gronemeyer v. Hunter Mfg. Corp., 34 Del.Ch. 515, 106 A.2d 519, the parties have been engaged in prolonged private argument as to the form of order to be entered thereon. The matter has finally been submitted to the court for decision. The difficulty arises from the nature of the case, as is best demonstrated by a reading of the previous opinion. It was there held, in substance, that plaintiff was entitled to protection of the \\\"know-how\\\" taught by certain patterns and drawings which were revealed to defendant under an agreement and then returned to plaintiff.\\nPlaintiff seeks one of two types of injunction:\\n1. Enjoin defendant perpetually from using or disclosing any of the processes, methods or techniques exemplified by the patterns and drawings, or,\\n2. Enjoin defendant, for a limited period of time, from making any reflective insulation which embodies or employs methods or techniques that are substantially identical with those taught by the drawings.\\nDefendant says that plaintiff is not entitled to an injunction and that even if he is, it is necessary to limit it so that it will not embrace matters taught by the patent owned by defendant, or information already in the public domain or know-how secured from plaintiff while he was employed by defendant. Alternatively, defendant contends that the court should grant plaintiff monetary relief in lieu of an injunction because of the practical difficulties in formulating an injunction which would be both fair and workable.\\nI do not hesitate to say that this problem is a particularly difficult one for this court. As the arguments of counsel have demon-stated, it is a challenge to the ingenuity of a court of equity. The conclusions hereinafter reached are not entirely satisfactory. I believe that such a result is inevitable where, as here, there must be an accommodation of the rights of both sides. The subject matter\\u2014 know-how \\u2014 is such that language is inadequate to delineate the respective rights of the parties in a manner which will be fully meaningful to defendant when it proceeds with its operation. And, more important, language of the kind sought by plaintiff would make a fairly objective evaluation of defendant's subsequent conduct almost impossible.\\nIn my discretion I determine that the relief should take the form of the grant of an election to plaintiff to choose between two alternatives. In this way, plaintiff may have a choice of fair alternatives and defendant will not benefit by its legal wrong. I do not believe that these facts present a situation when plaintiff is being forced to take something less or something different than he is entitled to under the decision. The reversing aspects of Richard Paul, Inc. v. Union Improvement Co., 33 Del.Ch. 113, 91 A.2d 49, are therefore not in point.\\nI believe equity has jurisdiction to give a plaintiff such a choice in a case such as is irevealed by my previous opinion, viz., where the equitable right has been established and the difficulties arise from the formulation of the relief.\\nThe first alternative will be an injunction directing the destruction, as of a fixed future date, of all drawings and patterns in the defendant's possession or control. I exclude those which plaintiff admits are taught by the patent. I recognize that this will impinge on the so-called \\\"improvements\\\" made on plaintiff's drawings while plaintiff was employed by defendant. However, as I view the evidence, there is no practical way to separate the two and defendant must suffer the consequence under my findings.\\nThis order will not be entirely satisfactory to plaintiff. But plaintiff conceded that the \\\"know-how\\\" reflected in his drawings and patterns could be reproduced by competent persons in what I calculate to be about two years. I believe it is fair to infer from the evidence that one owning the patent and having the benefit of plaintiff's employment for the time involved, plus the other materials here involved, could do it in substantially less time. Thus, I conclude that defendant could have done it in less time.\\nIt is true that defendant's employees will continue to have the benefit of some of the know-how disclosed by the drawings since they have been working with them. However it is not feasible to \\\"brain wash\\\" the employees. Moreover, the court is reluctant here to enter an order which, in effect, would shut down the business, particularly where, as here, the plaintiff sold the assets and the patent to defendant for a substantial consideration. Also, defendant paid plaintiff a substantial salary while it employed him. This is not to say that plaintiff's relief should be arbitrarily reduced. But I do say that defendant has substantial rights and is entitled to have them considered by a court of equity in formulating its relief.\\nI will also consider a possible provision which would enjoin the disclosure of this know-how to third parties.\\nThe order should direct the defendant to file an account covering the work properly allocable to the period from the date when the drawings should have been returned until a date to be fixed in the order. Counsel will be heard as to the latter date. The order should also fix a date for plaintiff to file exceptions.\\nIt seems to me that the form of injunction suggested plus the accounting will give plaintiff all the relief to which he is fairly entitled under the facts.\\nThe second alternative available to plaintiff will be a money judgment for the fair value of the know-how retained, in effect, by defendant. This will be in lieu of an injunction and an accounting. It is premised on the theory that the ethereal quality of the subject matter plus the conditions necessarily created thereby render it impossible to issue a completely workable and fair injunction. Counsel will also be heard as to the monetary yardstick to be applied to this alternative.\\nThe judgment should incorporate the alternatives and should provide that plaintiff will be given a fixed number of days to indicate an election at the foot of the judgment.\\nOrder on notice.\"}"

delaware/503203.json

@@ -0,0 +1 @@
+"{\"id\": \"503203\", \"name\": \"STATE v. ABRAM EMORY\", \"name_abbreviation\": \"State v. Emory\", \"decision_date\": \"1796-12-01\", \"docket_number\": \"\", \"first_page\": \"67\", \"last_page\": \"68\", \"citations\": \"2 Del. Cas. 67\", \"volume\": \"2\", \"reporter\": \"Delaware Cases\", \"court\": \"Delaware Court of Quarter Sessions\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-11T00:29:20.726548+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE v. ABRAM EMORY.\", \"head_matter\": \"STATE v. ABRAM EMORY.\\n[Court of Quarter Sessions.] Kent.\\nDecember 1, 1796.\\nRodney\\u2019s Notes.\\nBayard [for the State]. Miller [for defendant].\\nJoshua Beauchamp. On a Sunday I saw Abram at Maxwell\\u2019s, talked to him and rode off. He called to me and asked me who told me he had threatened him. He gave me the lie and drew his fist. I jumped down and we closed. This was the last of September.\\nBedwell Maxwell surrenders up Abram, and John Anderson recognizes for him.\\nMaxwell, sworn on the voir dire, says he expected to have the fine and fees to pay in first instance but should look to Abram for repayment.\\nBayard objects to Maxwell\\u2019s examination on the ground that he is interested.\\nMiTler.\\nHe is not interested, and if he was, it appears in testimony no other person was present but black people.\\nIn the account of this case in Bayard, the name is spelled \\u201cEmery.\\u201d\\nThis case is also reported in Bayard\\u2019s Notebook, 166.\", \"word_count\": \"301\", \"char_count\": \"1669\", \"text\": \"The Court do not consider him as an incompetent witness: first, from the necessity of the case; second, his interest being remote or very small.\\nMaxwell. On Monday morning after this happened, Beau-champ rode up and said the evening before he took his negro man to see Abram. He was going to leave him, and Abram called after him. They disputed and Abram called him a liar. He then said that he struck him, Abram, with his whip and got off his horse and dragged him towards some brush etc.\\nWilliam Berry, Esq. On Sunday evening Beauchamp complained on oath that he was afraid Abram would bum his house or do .him some other injury. I issued a warrant or warrants against [Abram].\\nVerdict: guilty of an assault only, not guilty of the battery. Fined \\u00a35.\"}"

delaware/503597.json

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+"{\"id\": \"503597\", \"name\": \"ELSEY SPICER'S LESSEE v. JOHN CONAWAY\", \"name_abbreviation\": \"Spicer's Lessee v. Conaway\", \"decision_date\": \"1803-11-25\", \"docket_number\": \"\", \"first_page\": \"195\", \"last_page\": \"196\", \"citations\": \"2 Del. Cas. 195\", \"volume\": \"2\", \"reporter\": \"Delaware Cases\", \"court\": \"Delaware Court of Common Pleas\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-11T00:29:20.726548+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ELSEY SPICER\\u2019S LESSEE v. JOHN CONAWAY.\", \"head_matter\": \"ELSEY SPICER\\u2019S LESSEE v. JOHN CONAWAY.\\nCourt of Common Pleas.\\nNovember 25, 1803.\\nRodney\\u2019s Notes.\\nBayard, Wilson [for plaintiff]. Bidgely [for defendant].\\nBayard, plaintiff\\u2019s counsel,\\ncontended that there was only error in the proceedings and that defendant should have made his objection at the return of the writ or at least of the sale by [the] sheriff.\\nRidgely.\\nIf such a practice as the counsel contends for obtains, a man may lie still for years, and when the party is sued and likely to be turned out of possession by ejectment under improper proceedings, is to be told that though his opponent\\u2019s title is not good, yet he is now too late to object. This is an ejectment, and the same rules will not apply that would on motion to set aside execution etc.\", \"word_count\": \"159\", \"char_count\": \"893\", \"text\": \"November 25, 1803. The Court were of opinion that the rule to show cause in the above case be discharged and new trial not granted.\"}"

delaware/510246.json

@@ -0,0 +1 @@
+"{\"id\": \"510246\", \"name\": \"Arthur Hoffman, Erwin H. Ezzes, Herman Koenigsberg and Virginia S. Hudson et al., Appellants, vs. Sol A. Dann et al. and Mary L. Gallo et al., Plaintiffs Below, Appellees, and Chrysler Corporation et al. and Paul C. Ackerman et al., Defendants Below, Appellees\", \"name_abbreviation\": \"Hoffman v. Dann\", \"decision_date\": \"1964-11-17\", \"docket_number\": \"\", \"first_page\": \"123\", \"last_page\": \"144\", \"citations\": \"42 Del. Ch. 123\", \"volume\": \"42\", \"reporter\": \"Delaware Chancery Reports\", \"court\": \"Delaware Court of Chancery\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T20:16:40.928172+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Arthur Hoffman, Erwin H. Ezzes, Herman Koenigsberg and Virginia S. Hudson et al., Appellants, vs. Sol A. Dann et al. and Mary L. Gallo et al., Plaintiffs Below, Appellees, and Chrysler Corporation et al. and Paul C. Ackerman et al., Defendants Below, Appellees.\", \"head_matter\": \"Arthur Hoffman, Erwin H. Ezzes, Herman Koenigsberg and Virginia S. Hudson et al., Appellants, vs. Sol A. Dann et al. and Mary L. Gallo et al., Plaintiffs Below, Appellees, and Chrysler Corporation et al. and Paul C. Ackerman et al., Defendants Below, Appellees.\\nSupreme Court on Appeal,\\nNovember 17, 1964.\\nHoward M. Handelman, Wilmington, and Norman Annenberg, New York City, for appellant objector Ezzes.\\nFrank J. Miller, of Foulk, Walker, Miller & Wakefield, Wilmington, for appellant objector Koenigsberg.\\nIrving Morris and J. A. Rosenthal, of Cohen, Morris & Rosenthal, Wilmington, for appellant objector Judson et al.\\nSotiere S. Kapsglis, Wilmington, and Bader & Bader, New York City, for appellant Hoffman.\\nWilliam E. Taylor, Jr., Wilmington, Norman S. Nemser and Stanley Nemser, and Irving Steinman, New York City, for plaintiffs appellees Mary L. Gallo and James A. Gallo.\\nDaniel 0. Hastings, Clarence W. Taylor and Russell J. Willard, Jr., of Hastings, Taylor & Willard, Wilmington, Lewis M. Dabney, Jr., Liebman, Eulau & Robinson, New York City, and Dann, Rosenbaum Bloom & Kaufman, Detroit, Mich., for plaintiffs appellees in the Dann action except Sol A. Dann.\\nRichard F. Corroon of Berl, Potter & Anderson, Daniel L. Herrmann, of Herrmann, Bayard, Brill & Russell, Y. Samuel Arsht, of Morris, Nichols, Arsht & Tunnell, Robert H. Richards, Jr., of Richards, Layton & Finger, John J. Morris, Jr., and Albert W. James, of Morris, James, Hitchens & Williams, and Clyde M. England, Jr., Wilmington, Francis S. Bensel and Robert Ehrenbard of Kelley, Drye, Newhall, Maginnes & Warren, David W. Peck and Howard T. Milman, of Sullivan & Cromwell, and Milton Pollack, New York City, for certain defendant appellees.\\nSol A. Dann, Detroit, Mich., plaintiff appellee, in pro. per.\\nWolcott, C.J. and Carey, J., and Stiftel, Judge, sitting.\", \"word_count\": \"6577\", \"char_count\": \"40461\", \"text\": \"Wolcott, Chief Justice:\\nThese are appeals from a judgment of approval of the settlement of a stockholders' derivative action brought in behalf of Chrysler Corporation. The settlement approved disposed of two stockholders' derivative actions which had been consolidated for the purpose of.settlement. In the two actions 17 separate causes of action, involving in all 70 separate claims, were asserted against 97 individual and corporate defendants.\\nThe causes of action may be divided into three classifications: (1) charges that certain officers of Chrysler had personally profited from transactions between Chrysler and suppliers in which they had a financial interest; (2) charges that some of the defendants as officers and directors had mismanaged Chrysler from 1956 to 1961, and (3) charges that the Incentive Compensation Plan of Chrysler and its Stock Option Plans were not soundly devised, and were unfair to Chrysler's stockholders.\\nPrior to the agreement of settlement the plaintiffs had conducted fairly extensive discovery proceedings, and agreed to the terms of the settlement only on the condition that they be permitted further discovery in order to determine whether or not the claims asserted in the complaints had sufficient merit to demonstrate the unfairness of the proposed settlement. Additional discovery was allowed which thereafter proved to be elaborate. The final result was that plaintiffs concluded that, except for the cause of action based upon the unfairness of the Incentive Compensation Plan, no cause of action set forth in the complaints could be successfully prosecuted to recovery because of the lack of probative evidence.\\nAccordingly, plaintiffs represented to the stockholders in the notice calling a stockholders meeting to approve the proposed settlement that, with the exception of the cause of action based upon the Incentive Compensation Plan, there was no possibility of recovery in any substantial amount for the benefit of Chrysler and its stockholders.\\nThereafter, the stockholders, at the special meeting called for the purpose, overwhelmingly approved the proposed settlement and a modification of the Incentive Compensation Plan which was part of the proposed settlement.\\nIn addition, following the stockholders meeting the Chancellor appointed an amicus curiae to report to him on the relevant issues to be tendered at the hearing on the proposed settlement, and as to proof which would be of assistance to him in passing on the fairness of the settlement. The amicus filed an elaborate report with the Chancellor analyzing the evidence of record and suggesting other areas in which additional proof might be desirable.\\nSubsequently, an extensive hearing upon the fairness of the proposed settlement was held before the Chancellor. He ultimately approved the settlement. From his judgment of approval these appeals are taken by various objecting stockholders who had appeared at the hearing before the Chancellor to oppose the settlement.\\nFundamentally, the settlement agreed upon by the parties and approved by the Chancellor provides that the actions herein be dis missed with prejudice and releases be delivered to the defendants, with the exception of the defendant Newberg, and, in return, that the Chrysler Incentive Compensation Plan be amended by stockholder action to accomplish what both plaintiffs and defendants say is a better Incentive Compensation Plan than that formerly in effect.\\nThese appeals were taken only by certain stockholder objectors appearing at the hearing upon the settlement. None of the plaintiffs have appealed but appear in this Court as appellees along with the defendants. Only one of the objectors, viz., Ezzes, attacks the approval of the settlement on the ground that some of the causes of action asserted in the complaints are not in fact worthless but, to the contrary, offer hope of substantial recovery for the benefit of Chrysler.\\nWe first consider the arguments made by the appellant Ezzes that certain of the causes of action offer hope of substantial recovery for the benefit of Chrysler. In doing so, however, we consider only those specific causes of action brought to our attention by Ezzes in his brief and at the argument.\\nFirst, Ezzes argues that the incentive compensation computations for the years 1955, 1957, 1960 and 1962 were made in violation of the Incentive Compensation Stockholders' Resolution of 1956. The argument is that nonoperating income was improperly included in consolidated net earnings of Chrysler for those years in order to compute the total amount payable as incentive compensation.\\nFor the years in question the payment of incentive compensation was governed by the Stockholders' Resolution of 1956 authorizing the payment of incentive compensation not to exceed 5 \\u00b0fa \\\"of the consolidated net earnings for that fiscal year (as reported in the Annual Report to the stockholders).\\\"\\nIn the computations in question all income of Chrysler resulting from its automobile business as well as from its investments, interest on loans, and profits from other sources were included in consolidated net earnings for the purpose of computing incentive compensation. Ezzes argues that the phrase \\\"consolidated net earnings\\\" used in the Resolution of 1956 necessarily excluded earnings from any source not connected with its main business venture, i. e., the making and sale of automobiles. It is argued that the improper inclusion of the so-called nonoperating income for the years in question resulted in an increase in incentive compensation of slightly over $2,000,000 which may readily be recovered from the defendants.\\nThe Resolution of the Stockholders of 1956 does not exclude in terms so-called nonoperating income, but refers generally to \\\"consolidated net earnings.\\\" Chrysler is actually a diversified business and has earnings arising from other than the manufacture and sale of automobiles. It has earnings derived from its Air-Temp, Missile, Defense and Space Divisions which are nonautomobile sources, and from some other diversified sources such as catering service, vending machines in its plants, etc.\\nIf the stockholders intended to exclude income from sources other than the manufacture and sale of automobiles from the Incentive Compensation Plan, that should have been made specific in the Resolution authorizing such payments. This follows from the provision in the Resolution that incentive compensation was to be based on the Annual Report to stockholders, which included earnings from all sources as consolidated earnings.\\nEzzes, however, cites in this connection three cases which he argues control the question.\\nHe cites Schwartz v. Miner, 37 Del.Ch. 575, 146 A.2d 810. This case was a derivative action on behalf of a corporation which had a Profit-Sharing Trust Plan providing for contribution by the corporation of a percentage of its consolidated net profits. The corporation made an investment in the stock of a supplying company which it later sold at a loss. In determining later the amount to be distributed under the Profit-Sharing Plan, the loss thus occasioned was not deducted from the net profits. The Chancellor held that the corporation under the Plan was not required to deduct the net loss from the sale of capital assets in determining the amount to be distributed.\\nThe case, however, does not stand for the proposition for which Ezzes cites it. The Plan involved in the Schwartz case provided for the contribution by the corporation to the Profit-Sharing Trust of a percentage of \\\"consolidated net profits exclusive of capital gains or losses.\\\" We think the Chancellor approved the exclusion of the capital loss from the computation of consolidated net profits of the corporation by reason of the precise exclusion in the Plan, itself, and not upon any theory that consolidated net earnings of necessity must be exclusive of so-called nonoperating income.\\nEzzes also cites Lieberman v. Becker, 38 Del.Ch. 540, 155 A.2d 596. We think, however, this case has nothing to do with the problem. It dealt with an attack upon a Deferred Compensation Unit Plan ultimately upheld by this Court. That Plan, however, was tied directly to the market price and dividends upon the corporation's stock. We see no connection between the rule announced in the Lieberman case and the cause of action now under consideration.\\nFinally, on this point, Ezzes cites Heller v. Boylan, Sup., 29 N.Y.S.2d 653, aff'd. 263 App.Div. 815, 32 N.Y.S.2d 131. This case, we think, is equally inapposite to the one before us. In it the Court construed the term \\\"net profits\\\" used in a bylaw providing for the payment of incentive bonus. The bylaw in question defined \\\"net profits\\\" as the \\\"net earnings made by the company in its business as a manufacturer and seller of tobacco and its products.\\\" The Court in Heller clearly reached its decision upon the conclusion that if non-tobacco earnings of the company had been intended to be included, the bylaw would have been worded differently.\\nThus it is, we think, that with respect to this particular cause of action the contention of Ezzes that substantial recovery could be made on it is erroneous. To the contrary, we think no recovery could be obtained as a result of trial.\\nThe next cause of action said by Ezzes to have the probability of ultimate substantial recovery is that in 1962 the sum of $884,000, made up of state and local taxes, was included in net earnings. It is argued that this was illegal because this item was not reported in the 1962 Annual Report to stockholders as required by the Resolution governing Incentive Compensation Plans.\\nThe figure $884,000 is arrived at as the difference between $60,700,000 reported as \\\"Taxes on Income\\\" in the 1962 Annual Report to Stockholders, and $61,584,000 included as \\\"Taxes on Income\\\" in the computing of incentive compensation for 1962.\\nIt is therefore argued that since only those amounts reported in the Annual Report to stockholders could be included in the computation of incentive compensation, and since the $884,000 was not reported in the Annual Report, it was clearly improperly included in the incentive computation and the directors are accordingly liable.\\nInitially, it is to be observed that the sum of $884,000 included in the 1962 computation is in fact the total of state and local income taxes paid by Chrysler. Prior to 1942 these figures were included by Chrysler's accountants with Federal income taxes but, thereafter, were not so included because the amounts did not again become significant until 1962 after the decision in Northwestern States Portland Cement Co. v. State of Minnesota, 358 U.S. 450, 79 S.Ct. 357, 3 L.Ed.2d 421, upholding the right of states to levy income taxes on companies engaged in interstate commerce.\\nFollowing this decision, Chrysler's auditors sought the advice of counsel as to whether or not to take such taxes into account in computing incentive compensation. This action was taken in accordance with the 1956 Resolution which authorized the auditors in the computation of incentive compensation to rely upon the opinion of counsel as to any matter of law.\\nThe question therefore as to the propriety of including $884,000 in the computation of incentive compensation for the year 1962 depends solely on whether or not these figures were contained in the Annual Report to stockholders for that year. As a matter of fact, the Annual Report to stockholders of 1962 does in fact contain the figures making up this sum, although they are included under different headings in the Annual Report. We are accordingly of the opinion that the Chancellor was correct in holding as he did that this asserted cause of action had no probability of substantial recovery.\\nNext, Ezzes argues that the cause of action based upon an alleged violation of the 1929 Incentive Compensation Resolution of Stockholders for the years 1953 and 1955 has substantial probability of recovery.\\nThe 1929 Resolution of Stockholders providing for incentive compensation, later superseded by the 1956 Resolution, provided that incentive compensation may be paid not in excess of 5% \\\"of the net earnings of the corporation for that year.\\\" It is argued, citing Heller v. Boylan, supra, that the clear and unambiguous terms of this Resolution prevented the payment of incentive compensation for the years in question out of \\\"consolidated earnings\\\" of the corporation, but that this in fact was done in 1953 and 1955.\\nHowever, from 1929 on, the earnings of the corporation were always reported to stockholders as consolidated earnings. We think this continued practice clearly indicates that the intention of all concerned was that the 1929 Resolution referring to \\\"net earnings\\\" in fact meant \\\"consolidated net earnings.\\\" Under the circumstances, it is proper to define the phrase \\\"net earnings\\\" as \\\"consolidated net earnings.\\\" Meyers v. Cowdin, Sup., 47 N.Y.S.2d 471, aff'd. 270 App.Div. 827, 60 N.Y.S.2d 129, aff'd. 296 N.Y. 755, 70 N.E.2d 555, and Diamond v. Davis, Sup., 62 N.Y.S.2d 181.\\nWe think this cause of action is at best of doubtful merit.\\nEzzes next argues that the cause of action charging invalidity of stock options issued after 1956 in violation of the 1956 Incentive Compensation Resolution is meritorious and has promise of substantial recovery against the defendants on behalf of the corporation.\\nThe argument in this respect is that since the Stockholders' Resolution of 1956 limited all Incentive Plans to 5% of consolidated net earnings, necessarily no stock options could have been issued if the full 5 % had been paid out as incentive compensation. It is argued that the granting of stock options falls within the meaning of the words \\\"Incentive Plans\\\" as used in the Stockholders' Resolution of 1956.\\nWithout laboring the issue, however, we are of the opinion that the limitation of a percentage of consolidated net earnings under the Stockholders' Resolution of 1956 has no bearing on the issuance of stock options. This is made clear by a comparison of the Stockholders' Resolution of 1929 with that of 1956. The 1929 Resolution authorized the Board to establish Profit-Sharing Plans and to provide for Bonus Plans. In 1956 the 1929 Resolution was amended to permit the Board to provide plans for officers and executives of the corporation \\\"to share in the profits of the corporation (hereinafter in this Resolution called Incentive Plans).\\\" It seems plain therefore that the 1956 Resolution substituted the phrase \\\"Incentive Plans\\\" for the former phrases of \\\"Profit-Sharing Plans\\\" and \\\"Bonus Plans.\\\" This being so, it is apparent that the amendment was not intended to include Stock Option Plans which, ordinarily at least, are not Profit-Sharing or Bonus Plans but are plans designed to permit the optionees an opportunity to acquire a share in the corporation, itself.\\nFurthermore, the Stock Option Plan of the corporation was approved by the stockholders in 1952 and had at that time no relation to the Incentive Plan of 1929, nor did it acquire any by the subsequent amendment of that Plan in 1956.\\nAccordingly, we are of the opinion that this cause of action is without merit.\\nNext, Ezzes argues that the cause of action charging the directors with the wasting of corporate assets by causing the stockholders to cancel stock options previously granted and granting new options at a lower option price is meritorious and has the probability of substantial recovery.\\nIn 1958 the Stock Option Committee of non-eligible directors granted, subject to stockholder approval, new options to purchase stock at around $50 per share on condition the holders of options previously issued at $61 to $77 per share were surrendered for cancellation. The Board recommended the proposal to the stockholders. It is argued that this action constitutes a waste of corporate assets.\\nIt appears to us that the provisions of the Plan authorizing the issuance of options in 1959 comply with the requirements laid down by Delaware Law for the validity of Stock Option Plans. Indeed, no serious contention is made to the contrary.\\nThe argument of Ezzes under this heading seems to be that a corporation should not permit the cancellation of old options and the issuance of new stock options at lower prices since that, in effect, excuses poor performance by management. Certain magazine and Law Review articles are cited to this effect and, indeed, we may assume that, as an ordinary business practice, such action is undesirable. This does not alter the fact, however, that under the law of this State a Stock Option Plan may not be successfully attacked when the options are granted by a disinterested committee with the approval of the directors and stockholders, and where the optionee is required to remain in the employ of the corporation. Gottlieb v. Heyden Chemical Corp., 33 Del.Ch. 177, 91 A.2d 57; Beard v. Elster, 39 Del.Ch. 153, 160 A.2d 731. The new Option Plan meets these tests.\\nWe are of the opinion that this cause of action has no merit.\\nFinally, Ezzes argues that the cause of action based upon the cost to Chrysler of a revolving credit commitment is meritorious and has probable recovery of in excess of $2,000,000.\\nThe facts underlying this alleged cause of action are that in 1958 Chrysler obtained a revolving credit commitment for $150,000,000 which was continued until 1961. Chrysler never used the revolving credit but its existence cost Chrysler $2,157,533 from 1959 to 1961.\\nThe credit commitment was recommended by the Finance Committee in 1958 of which there were nine members, seven of whom were directors of banks later participating in the credit commitment. Prior to this action Chrysler's Administrative Committee, the members of which were all full-time employees of Chrysler, approved the establishment of the credit commitment. On the same day, the Board of Directors \\u2014 18 of the total of 21 being present \\u2014 approved the credit commitment arrangement. Of the 18 directors voting, eight were officers or directors of banks later participating in the revolving credit commitment.\\nEzzes argues that the action of the Finance Committee and the Board of Directors was illegal as a violation of Article II, Section 6 of Chrysler's bylaws requiring a majority of directors in office to constitute a quorum, and Article II, Section 9 providing that no director shall vote upon a matter in which he is interested.\\nIt appears that the reasons leading to the arrangement of the revolving credit commitment are that in 1958 it was clear to the directors that Chrysler faced heavy cash demands due to the requirements to be caused by major model changes in 1959 and 1961; the entry into the compact car field; increased emphasis on international operations and a slowdown in Government payments for defense products, all of which would probably require additional cash. In addition, in 1958 it had become obvious that Chrysler's financial fortunes had begun to deteriorate and that its sales were severely contracting.\\nAccordingly, on the basis of this estimate of Chrysler's prospects the revolving credit arrangement was approved. The agreement was between Chrysler and the Hanover Bank as agent, of which McNeill, one of Chrysler's directors, was president. However, it appears that the Hanover Bank had been selected by two independent officers of Chrysler as agent, and that it had agreed to serve without compensation.\\nFurthermore, at the time the revolving credit agreement was authorized, no bank other than the 'Hanover Bank had been selected as a participant in the agreement. As a matter of fact, Simons, Chrysler's treasurer, selected the banks to participate, allocated their shares of the participation, and later reported that fact to the directors.\\nThereafter, from 1958 to 1961 the advisability of terminating the credit agreement was reviewed frequently and, in the unanimous opinion of the Board of Directors until 1961, it was continued as advisable for the good interests of Chrysler.\\nThe Chancellor found that the evidence of record discharged the burden of proof lodged upon the directors of proving that the commitment was reasonably necessary as a matter of business judgment for the purpose it was intended to serve, and that, accordingly, the technical bylaw violation, if indeed there was one, imposed no liability upon the directors since there was no showing at all of any loss to Chrysler or of any pecuniary benefit to the allegedly interested directors.\\nWe agree with the Chancellor that this cause of action is essentially an attack upon a decision involving the exercise of business judgment on the part of the directors. In the absence of a showing of bad faith or fraud, of which there is none in this record, recovery on this claim is at best of extremely doubtful probability. Keenan v. Eshleman, 23 Del.Ch. 234, 2 A.2d 904, 120 A.L.R. 227; Gottlieb v. Heyden Chemical Corp., 33 Del.Ch. 82, 90 A.2d 660; Sterling v. Mayflower Hotel Corp., 33 Del.Ch. 293, 93 A.2d 107, 38 A.L.R.2d 425.\\nThere were other causes of action argued by Ezzes to the Chancellor below, all of which were held by the Chancellor to be of extremely doubtful merit. Ezzes has not in this Court renewed his argument with respect to these other causes of action. We therefore are not required to consider them.\\nWith respect to the causes of action urged upon us as containing probability of substantial recovery and, thus, a reason for disapproval of the settlement, we agree with the appraisal of them made by the Chancellor to the effect that the evidence produced in the record in support of these claims is wholly inadequate to afford any hope of substantial recovery upon them. Therefore, they may properly be described as devoid of merit or, possibly as some of the parties label them, worthless.\\nOf all of the claims asserted against these defendants, the only one considered to have any possibility of ultimate recovery was the one based upon the alleged unfairness of the 1956 Incentive Compensation Arrangement. All of the parties before us agree that this is the fact with the exception of the appellant Ezzes and the plaintiffappellee Dann, whose position will be referred to later.\\nUnder the 1956 Plan, incentive compensation awards were permitted to be made for years when the consolidated net earnings of Chrysler and its subsidiaries, computed before the payment of taxes on income and before the payment of incentive compensation and interest on long-term debt of the corporation, exceeded 7% of the shareholder's investment \\u2014 that is, capital, surplus and retained earnings of Chrysler and its subsidiaries and the long-term debt of Chrysler. The total award for any one year was limited to 5% of such excess. There was no provision limiting the fund to be paid as incen tive compensation in any one year to the amount of dividends declared in that year.\\nThe charge of unfairness with respect to the 1956 Plan is that it was wasteful in that it permitted the payment of more in the way of incentive compensation than do comparable Plans of Chrysler's competitors ; that the Plan does not limit the payment of incentive compensation only to years when corporate income exceeds a reasonable return on the stockholder's investment, and that the Plan requires a so-called \\\"set-aside\\\" for the benefit of stockholders of only 7% of the stockholder's investment before taxes which, after the payment of taxes, is the equivalent of about 3^2%. All of this means, it is argued, that the Plan is unfair because the stockholder's return on his investment is too small in comparison with the incentive compensation permitted to be paid.\\nThe Chancellor concluded that the attack on the Plan as outlined above raised an issue of fairness upon comparison of the return on the stockholder's investment with the amount of incentive compensation thatcould be paid. He therefore concluded that an issue as to the fairness of the 1956 Plan remained in the case, even though his appraisal of the other causes of action in effect was that they were worthless.\\nAccordingly, the parties agreed upon a settlement as to the only remaining issue, that of fairness of the Plan. As a part of that settlement they proposed the adoption of a new Incentive Compensation Plan to be submitted to the stockholders for their approval upon the understanding that a vote for its approval was a vote in favor of the agreed-upon settlement. As we have pointed out, the stockholders overwhelmingly approved both the new Compensation Plan and the settlement.\\nThe new Plan of 1963 briefly is as follows: The period within which it is to operate is 1963 through 1969. It provides that incentive compensation may be paid only when the consolidated net income after taxes, as reported in the Annual Report to stockholders, plus provision for incentive compensation plus interest on the long-term debt of the corporation, is greater than 5j4% of the stockholder's investment \\u2014 that is, capital, surplus and retained earnings plus the corporation's long-term debt. The total amount that may be awarded as incentive compensation is limited to the lower of 12% of the excess or the aggregate amount of all dividends paid upon the common stock for the year in question.\\nThe adoption of the new Plan resulted in changing the Incentive Compensation Plan of Chrysler from a before-tax to an after-tax basis. It increased the after-tax set-aside from 3^% under the old Plan to under the new Plan, thus increasing the benefit to the stockholder's investment. The new Plan increases the percentage rate of incentive compensation computed after the increased set-aside for the benefit of stockholders. The result is that the Plan requires higher earnings before any award of incentive compensation may be made.\\nUntil the earnings for a particular year reach the so-called \\\"cross-over\\\" point \\u2014 that is, the amount of earnings which would make the fund for incentive compensation the same under both the old and new Plans \\u2014 the result would be a smaller amount available under the new Plan to be awarded as incentive compensation. After the cross-over point is reached, however, a larger amount would be available for such purposes under the new Plan than would have been under the old. In addition, an increase in earnings in each succeeding year increases the amount of the set-aside so that higher earnings are required in each succeeding year to continue an increase in the amount awarded as incentive compensation.\\nIt is obvious that the settlement with respect to the Compensation Plan has resulted in the increase of the set-aside for the benefit of stockholders before the payment of incentive compensation. This automatically increases the total amount of earnings required before incentive compensation can be paid.\\nThe defendants argue it is really immaterial whether the change in the Compensation Plan is a benefit to Chrysler Corporation. They argue that the settlement should be approved for the reason that the necessity of defending the worthless claims asserted against the defendants would prove an expensive and unreasonable burden upon Chrysler Corporation by reason of the cost of the defense and the wastage of time which would be required of Chrysler's officers and executives. Indeed, this seems to us to be an apparent fact.\\nThe Chancellor concluded that his function was to determine whether or not the terms of the settlement are fair to Chrysler Corporation when set against the probability of recovery on the asserted claims against the other defendants. These are, of course, theoretically asserted for the benefit of Chrysler Corporation.\\nHe concluded that while both the old Plan and the new Plan were probably fair and would be upheld against attack, he could not and should not determine which of the two was the better from the point of view of Chrysler. He pointed out that the new Plan does in fact require higher earnings, up to a certain point at least, in order for the same amount to be paid as incentive compensation as would have been permitted under the old Plan. Recognizing that no one could predict the future of Chrysler accurately, he reached the conclusion that in the long run the new Plan would probably result in increased benefits to the stockholders of Chrysler.\\nAccordingly, under all the circumstances, he approved the settlement subject to the limitation that no director of Chrysler should receive benefits under the Plan for the year 1963. This limitation was imposed because of the greatly increased earnings of Chrysler for the year 1963 which probably were known or could have been forecast by the Chrysler directors entitled to benefit under the Plan.\\nIt is this determination of the Chancellor we are to review in these appeals. Our function in the review of such matters is not to determine for ourselves the intrinsic fairness of the settlement in the light of our business judgment. Our function is solely to determine whether or not the Chancellor in the approval of the settlement has abused his business judgment to an extent amounting to an abuse of judicial discretion. Rome v. Archer, 41 Del.Ch. 404, 197 A.2d 49; Kleinman v. Saminsky, 41 Del.Ch. 572, 200 A.2d 572.\\nInitially it is obvious that the settlement approved in this litigation does not take the traditional form of the payment of a quid pro quo by the defendants. The reason for this is obvious. Such a payment would be nothing more than a buying-off of the plaintiffs for the dis missal of worthless claims. It is, we think, generally conceded that such a practice is an undesirable one to ask a court to approve. In fact, Rule 23(c) of the Court of Chancery, Del.C.Ann. under which this settlement was approved was, we think, specifically designed to end a practice prevalent theretofore to this effect. See 3 Moore's Federal Practice (2nd Ed.), \\u00b6 23.24[2],\\nNevertheless, on the record before us the Chancellor concluded, and we agree with his conclusion, that the causes of action, with one possible exception, were, if not worthless, at least incapable of sufficient proof to hold out much hope of recovery. With respect to the one cause of action about which there could be some argument, the parties have agreed upon, and the Chrysler stockholders have approved, an adjustment which probably will result in a long-term benefit to Chrysler.\\nAccordingly, we think it was proper for the Chancellor to conclude, in view of the desirability of terminating litigation which, at best, was an harassment of Chrysler, to approve a settlement which departs from the traditional form. Each case, of necessity, must be decided upon its peculiar facts. Under the peculiar facts of this case this settlement is fair and results in the ending of this prolonged and harassing litigation. We think it should be approved.\\nThe appellant Koenigsberg, an objector, argues that the settlement should be disapproved because in effect the stockholders, themselves, are making the payment of settlement through the media of increased incentive compensation payments. We think the argument confuses the facts of the result. Certainly, it is to the benefit of Chrysler stockholders to end this litigation. There is no hope of substantial recovery for their benefit by the continuance of the litigation, but there is assurance of cost to them in the event it is prolonged. Furthermore, it is at least arguable that the new Incentive Compensation Plan in the long run will benefit the stockholders of Chrysler by reason of the increased requirements of the so-called set-aside.\\nIt seems to us to make little difference under the circumstances of this litigation that the individual defendants who receive releases as a part of this settlement have in fact made no monetary payment in settlement. This, we think, necessarily follows from the fact that the claims asserted against the individual defendants have been found to be devoid of merit. Despite this, they cannot end the litigation. The claims are pleaded with technically legal sufficiency and, thus, are not subject to a motion to dismiss.\\nNevertheless, if the claims are prosecuted the expense of defense will fall upon Chrysler Corporation which, in the last analysis, is the Chrysler stockholders. We think, therefore, that while on its face plausible, the argument of Koenigsberg is not sufficient to cause us to interfere with the exercise of the discretion of the Chancellor.\\nThe appellants, Sandler objectors, argue that the settlement should be disapproved because it confers no benefit upon Chrysler and because, for the year 1963, the amount which may be awarded as incentive compensation under the new Plan is some $1,500,000 in excess of that which could have been awarded under the old Plan. The argument is, of course, primarily based upon the fortuitous circumstance that Chrysler's earnings for 1963 were greatly larger than for 1962. While the directors and officers of Chrysler may have realized the potentially greater earnings for that year, that fact has been taken care of by the Chancellor in the condition he imposed upon his approval of the settlement, that such persons not share in the incentive compensation award for 1963.\\nA further answer to these objectors' argument is that, in all probability, over the long span of the future, the Plan in its operation will result in benefit to Chrysler's stockholders. Admittedly, no one can predict Chrysler's future earnings but, certainly, in a business such as the automobile industry, profits take their ups and downs and may well equalize themselves over a course of years.\\nThe objector Ezzes makes a final point to the effect that approval of the 1963 Incentive Compensation Plan by the directors and stockholders was invalidly obtained.\\nHe points out that of the directors present at the meetings of February 7, 1963 and March 21, 1963, which resulted in the recommendation of the Plan to the stockholders, all hut two on February 7, and all but four on March 21, were either recipients of incen live compensation or defendants in these actions, or both. Upon this fact, it is argued that the Board's action in approving the settlement, including the amendment to the Plan, was invalid as a violation of Article II, Section 6 of Chrysler's bylaws requiring a majority of directors in office to constitute a quorum, and as a violation of Article II, Section 9 of the bylaws providing that no director shall vote upon a matter in which he is interested, or be present when the vote is taken.\\nEzzes overlooks the fact that the action of the directors did not bind Chrysler to the amendment in the Compensation Plan since, under the then-existing Plan, the sole method of change was by stockholder action. The most the directors could do in this respect was to submit to the stockholders the proposed change. This is what was done. Whether or not, therefore, there was some legal defect in the directors' action, that defect could be cured by informed stockholder action. Kerbs v. California Eastern Airlines, 33 Del.Ch. 69, 90 A.2d 652, 34 A.L.R.2d 839.\\nEzzes says, however, that there was no effective stockholder action because a fair disclosure of the facts was not made to the stockholders in that they were not informed of the future profit potentials of Chrysler and the resulting possibility of payment of greatly increased incentive compensation under the amended Plan. He charges that before April 16, 1963, the date of the stockholders meeting, the directors knew that the new Plan would produce a substantially greater fund for incentive compensation for 1963 than would the old Plan; that there had been general public acceptance of Chrysler's 1963 model; that sales and earnings figures pointed to an outstanding year for Chrysler, and that general conditions known to the automobile industry indicated that the industry would have an outstanding year in 1963. The failure to include this information in the proxy material and the notice of settlement hearing, it is asserted, constituted a breach by the directors of their duty to make a full and frank disclosure to stockholders.\\nIt appears, however, that these matters were largely disclosed to the stockholders in the Annual Report for 1962 which was sent to them at or prior to the starting of solicitation of proxies. Indeed, it would seem as though a large part of the information Ezzes says was withheld was a matter of general public knowledge.\\nIn any event, we are satisfied that the stockholders were fully informed and acted in the light of that information except, possibly, with respect to the charge that the directors knew that the new Plan would produce substantially greater compensation for 1963 than would the old Plan. The Chancellor, however, imposed as a condition upon his approval of the settlement the requirement that no director-defendant shall receive greater benefits under the Plan in 1963. We think this condition adequately takes care of Ezzes' objection.\\nAll of the plaintiffs, with the exception of the plaintiff Dann, named as appellees in these proceedings, argue for the approval of the settlement. They advance two reasons in support of their position, one of which we have followed for our approval of the settlement. Their second reason is that the main benefit of the litigation now settled was to effect a change in management in Chrysler Corporation which has resulted in its greatly improved financial position.\\nWe are of the opinion that the second reason, if it is entitled to any consideration \\u2014 a question upon which we refuse to express an opinion \\u2014 is entitled to consideration only in connection with the application for fees, as to which the Chancellor has reserved decision.\\nFinally, the plaintiff Dann, an appellee before us, has filed a brief and was permitted to argue orally in opposition to the approval of the settlement.\\nSome of the other appellees filed a motion to strike the brief of Dann on the ground that he had no standing before us to argue in opposition to the Chancellor's judgment since he had not taken an appeal therefrom. We think the position taken by these appellees is correct and that the plaintiff Dann, appellee here, has no standing to argue in opposition to the judgment below. Cf. Cleaver v. Roberts, Del., 203 A.2d 63; Trans World Airlines, Inc. v. State ex rel. Por terie, Del., 183 A.2d 174; Casey v. Southern Corp., 26 Del.Ch. 447, 29 A.2d 174. The brief of the appellee, Sol A. Dann, is accordingly ordered struck from the record.\\nBy reason of all of the foregoing, the judgment of the Chancellor approving the settlement of this litigation is hereby affirmed.\"}"

delaware/63053.json

@@ -0,0 +1 @@
+"{\"id\": \"63053\", \"name\": \"Henry W. Stewart v. George S. Grier\", \"name_abbreviation\": \"Stewart v. Grier\", \"decision_date\": \"1886-10-12\", \"docket_number\": \"\", \"first_page\": \"378\", \"last_page\": \"386\", \"citations\": \"7 Houst. 378\", \"volume\": \"12\", \"reporter\": \"Delaware Reports\", \"court\": \"Delaware Superior Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T21:50:52.812955+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Henry W. Stewart v. George S. Grier.\", \"head_matter\": \"Henry W. Stewart v. George S. Grier.\\nArbitration by Submission\\u2014Award\\u2014Avoidance\\u2014Costs.\\nWhen by consent of parties their controversies, including all matters of account, claims, debts, or demands which they may have against each other and then in dispute, are submitted to arbitrators selected and agreed upon by them without a rule of reference out of court, the arbitrators thus appointed are the judges of all items in controversy whether legal or equitable, and both parties are bound in law by the award, unless there be good grounds shown for avoiding the same.\\nI; 1 such an arbitration any matter in question in the nature of a partnership account between the parties is subject to the determination of the arbitrators.\\nThe award of arbitrators in such a case, when by the terms of the articles of submission, if it was made within the time limited it should be final and conclusive, will be confirmed by the court, unless good cause be shown for avoidance.\\nAjny material error or defect apparent on the face of such an award as misconduct or mistake of the arbitrators in making their award in such a case may not be shown in bar of an action at law for nonperformance of the award, but the remedy must be pursued in equity.\\nT ie failure of the arbitrators to be duly sworn or affirmed before proceeding in the arbitration will vitiate the award.\\nT. le parties to arbitration having bound themselves in a certain sum to abide the award, said sum is in the nature of a penalty and no greater amount can be collected than the amount specified in the award with interest from the date of the award.\\nThe power of awarding the costs of the arbitration was necessarily incident to the authority conferred on the arbitrators, though not mentioned in the articles of submission. Comegys, C. J., dissents. '\\n(Sussex,\\nOctober 12, 1886.)\\nAction of Debt on an arbitration bond.\\nn After the plaintiff rested counsel for the defendant moved a m-suit on the following grounds: First, because by the terms of the agreement to submit their differences to the said arbitration, the plaintiff agreed to discontinue the suit he had already instituted in this Court against the defendant which he has not done. Second, that the arbitrators were within twenty days after the hearing to report in writing. Third, that it was not proved that Mr. Evans was appointed by the other two arbitrators to act as an arbitrator with him. Fourth, there was no proof that the arbitrators were sworn.\\nThe Court refused the motion for a non-suit.\\nJames R. Lofland and Charles M. Cullen, for the plaintiff:\\nCharles F. Richards and Jacob Moore, for the defendant:\", \"word_count\": \"3556\", \"char_count\": \"20018\", \"text\": \"Houston, J.,\\ncharged the jury:\\nThat the law was favorable to the arbitration and this method of determining legal controversies and disputes out of Court by the mutual consent of the parties to submit them to the arbitration of persons agreed upon between them, and when it is done without a rule of reference out of Court, or any intervention by the Court, as in this case, the arbitrators become the judges and the tribunal of their own selection and creation for this purpose, and for that reason, unless there be good grounds shown for refusing to abide by their decision, both parties are bound in law to comply with it, and when, as in this case, the submission to arbitration is of all matters in difference between the parties, it includes all matters of account, claims, debts, or demands, which they may have against each other, and then in dispute and unsettled between them; and as some question was started on this point in the argument by the council for the defendant, we will say that we know of no reason why it should not include any equitable, as well as legal claims or demand then in dispute and unsettled between the parties, since in its nature it is no more a legal than an equitable tribunal created and established by the act and consent of the parties, and not under the constitution or any statutory provision of the State, and, therefore, we think, if under the terms of the submission in this case, there was any matter in question in the nature of a partnership account between the parties submitted with other claims or demands by them, or either of them, to the consideration and determination of the arbitrators, it was as competent for them to entertain and pass upon it, as upon any other matter of account, claim or demand then subsisting between the parties and submitted to them for their consideration and determination, for the authority and jurisdiction conferred upon them for that purpose, was solely by the will and consent of the parties, and without the intervention of any Court of law or equity in the-State in which such distinctions are observable and constitute an important line of division between this respective jurisdiction, as a general principle.\\nNot only by the express terms of the submission the award if made within the time limited in it, was to be final and conclusive; tut the tendency of modern jurisprudence is to give force, conclusiveness and effect to all awards where there is no corruption or misconduct on the part of the arbitrators, and where no deception has been practiced upon them; such has long been .the practice in the Courts of this State. In defence, however, of an action on the award, or for not performing the award, or in defence of an action 0:1 a bond conditioned for the performance of the award, and for not performing it, as in this case, the defendant may avail himself of any material error or defect apparent on the face of the award; such as excess of power by the arbitrators; as by omitting to consider a matter submitted, and it is material to the award : or want of certainty to a common intent; or a plain mistake of law, as for instance, as allowing a claim for freight when the ship had' never broken ground, and the like. In regard to corruption or other misconduct or mistake of the arbitrators in making their award, the common law seems not to have permitted them to be shown in bar of an action at law for non-performance of the award; but the remedy must be pursued in equity. But in this country, in those States where the jurisdiction in equity is not general, and does not afford complete relief in such cases, it has been held that if arbitrators act corruptly, or commit gross errors or mistakes in making tleir award, or take into consideration matter not submitted to them, or omit to consider matters which were submitted, or the award be obtained by any fraudulent practices, or suppression of evidence by the prevailing party, the defendant may plead and prove any of these matters in bar of an action at law to enforce \\u2022 the award. In practice where no suit is pending arbitrations are now generally entered into under the statutes enacted for the purpose of making the submission a rule of court; and in all cases where the submission is made a rule of Court, the Court will generally administer relief whenever it could be administered in equity. Such is the doctrine on the subject announced by Mr. Greenleaf in the second volume of his work on evidence, section seventy-eight, on the authority of the numerous cases cited in his notes to the section in support of it. But the arbitration in this case was not made a rule of Court, and was not intended to be returned to any other tribunal whatever for examination, approval or confirmation of the award made by the arbitrators; while at the same time it should be observed that we have a Court of Chancery wherein the the jurisdiction in equity is general, and which can afford complete relief in such cases as he refers to. But it is not necessary to pursue this principle or inquiry any further in this case for the submission and the award of the arbitrators are in evidence before the Court and jury, and as there is no material error or defect apparent on the face of the award, such as we have before mentioned and there is no proof of corruption or other misconduct or mistake of the arbitrators in making it; and we must therefore say to you that no such ground appears or has been shown for impeaching or denying the validity and conclusiveness of it.\\nThere is however, another matter on which the counsel for the defendant has asked the Court to charge the jury that if the plaintiff in the progress of the trial failed to prove by the testimony of any witness in the case, to the satisfaction of the jury, that the arbitrators before proceeding in the arbitration, were duly sworn, or affirmed, if they had conscientious scruples against taking an oath, as such to try the case, he could not recover in the action. In response to which the Court would say to them that if in the recollection of the jury there was not sufficient testimony before them to satify them of the fact that before proceeding to the hearing of the case the arbitrators had been so duly sworn or affirmed, the plaintiff could not recover, and their verdict should be for the defendant; but if on the contrary, the jury should be satisfied from any testimony in the case they were so sworn or affirmed to try the case, then their verdict should be for the plaintiff. And this brings us to the question presented by the counsel for the plaintiff ijn the argument, if for the plaintiff for what amount the verdict shall be. The agreement to submit the matters in difference between them to arbitration is under the hands and seals of the parties respectively and contains an express stipulation by which each bound himself to the other in the penal sum of six hundred dollars to abide by and perform the award of the arbitrators; and although upon the face of the instrument and in view of the facts proved in this case before us, it is not free from doubt whether the parties intended that the sum of six hundred dollars stated in it should constitute what is termed in law as strictly a penalty, or on the contrary, what are termed liquidated damages. The counsel for the plaintiff have contended for the latter construction, and that the words used must in this case be construed to mean stipulated damages and nota penalty; and yet among the rules of law which h,ave been established on the subject, it has been generally held that where it is doubtful by the language of the instrument whether the stipulation was intended as a penalty or as liquidated damages, the stipulation is to be considered a penalty merely. Besides we dp not think there has been anything disclosed in this case to bring it within the principle ruled on this question in the case cited by the counsel for the plaintiff, for we apprehend there could have been nothing in the character of the counter claims, debts and demands subsisting between the parties to this arbitration which could have prevented or seriously embarrassed the arbitrators in fixing the measure by which they were to ascertain and determine the amount of 'damages to be awarded to the plaintiff, or the actual amount due to him from the defendant on a full and final adjust-m ent and settlement of the mutual accounts and demands of the parties according to the evidence before them. We therefore instruct the jury that the plaintiff cannot recover the six hundred dollars demanded by him as liquidated damages, or more than the sijm awarded him by the arbitrators, with interest thereon from the d\\u00e1te of the award. Upon the question raised by the counsel for the defendant in the argument whether the arbitrators without any authority conferred upon them for that purpose by the terms of the submission had any power or discretion with respect to the costs of th,e arbitration or to award among other things, as was done by them in this case, that the costs of the arbitration amounting to twenty-two dollars and twenty-four cents, should be paid by the defendant, it is proper for me to say that after consultation the members of the Court offer in opinion a majority, however, holding that the power of awarding the costs of the arbitration was necessarily incident to the authority conferred on the arbitrators of determining the cause; and also such a trial by arbitration as this was is not in the matter of the legal costs properly incident to it, is not in terms provided for in our general statute in regard to costs in civil actions, it is certainly embraced in the long established and reasonable rule and policy of it, that \\\" generally a party for whom final judgment is given, in any civil action, or on a writ of error upon a judgment in such action, shall recover against the adverse party costs of suit, to be awarded by the court.\\\" According to the broad and comprehensive language of the act. But notwithstanding there is some contrariety in the rulings upon this question both in England and in this country, the better opinion, and the weight of the decisions, especially in this country, the majority of the Court think are in accordance with the principle which I have just announced. Kyd. on Awards, 100; Watt. on Arbitrat., 11 Law Libi., 89; 1 Steph., N. P., 151; Atchison v. Corgey, 9 E. C. L., 380; Roe I. Wood v. Doe, 2 T. R., 644; Alling v. Munson, 2 Conn., 691; Strang v. Ferguson, 14 Johns, 161; Dew v. Exton, 1 South, 173; Joy v. Simpson, 2 N. H., 179; Cox v. Jager, 2 Cow., 638; Lewis v. England, 4 Binn., 5 ; Buckley v. Ellmaker, 13 Serg. & R., 78; Young v. Shock, 4 Raudu., 299 ; Nicholas v. Ins. Co., 22 Wend., 125; Wood v. O'Kelly, 9 East, 426. We have therefore only to say to you in conclusion that if you find a verdict for plaintiff it should be for the amount of the award with interest thereon from the date of it and the costs of the arbitration, twenty-two dollars and forty-two cents.\\nComegys, C. J..\\nThe defence to this action is put upon two grounds\\u2014First, That no proof was made of any notice to the defendant of the making of the report by the arbitrators; nor that it was made within the time (twenty days) after the hearing, fixed by the articles of submission. Second, That there was no sufficient proof that the arbitrators were sworn, as provided by the articles, before entering upon the discharge of their duties. With respect to these respective grounds, we say to the jury that the articles of agreement contain no provisions for notice to either party. In the absence of such, no notice was required by law to be given by Stewart to Grier; for in cases of arbitration mutually agreed upon by the parties, each of them is in legal contemplation cognizant of all that takes place; in other words, has notice of the proceedings, or is bound to take notice of them from the beginning to the end. And we further say, in relation to the second ground, that while the statement in the report of the arbitrators that they were sworn (in pursuance of the requirements of the submission), is not in itself sufficient proof of that fact, yet when supplemented by the testimony of a witness who swears to their qualification, there is ample evidence that the arbitrators were sworn. The defendant confidently contends that there was no such supplementary proof; while the plaintiff is equally sure that there,was, and that it was made by the arbitrator, Robert H. Davis.\\nIn case of such contention, the question is usually settled by the notes of the Judge trying the case; but we have no notes upon the subject, neither is our recollection clear about it. Therefore, the question must necessarily be submitted to your recollection ; and if such recollection be that Mr. Davis said the arbitrators were sworn, there is an end to the controversy, and the second ground of defence to the action fails. Should your minds be satisfied, upon the subject of proof that the arbitrators were sworn, and you find that they were sworn, then your sole duty is to decide upon the amount the plaintiff is entitled to recover from the defendant, for there is no other defence to the action relied on. The plaintiff contends that he has a right to a verdict at your hands for six hundred; while the defendant denies this, insisting that he can recover nothing. If you think he should have a verdict, but the sum of two hundred and two dollars and ninety-four cents found to be due him by the arbitrators. A settlement of .this dispute depends upon the nature of this case. Ordinarily a party in whose favor an award is made (I am not speaking of awards on submissions in Court or by statute), is entitled to this amount of it, and also the costs he has incurred. But this is not a case of such award, but that of one made in pursuance of articles of agreement; and as they contain no provision for the payment of expenses, the decision with re spect to them is a nullity. If, therefore, you should adopt the defendant's view and confine the recovery to the award and not extend it to the provision in the articles for stipulated damages, the plaintiff can recover nothing but the sum of two hundred and two dollars and ninety-four cents, but by way of damages for the detention of his debt, you may give him and he is entitled to have interest from the making of the award till this day. But the plaintiff insists that he is entitled to recover from the defendant the sum of six hundred dollars, upon the ground that such sum is fixed and agreed upon between the parties in their submission to arbitration, and as for the damages to be recovered each from the other, for a breach of the mutual covenant or agreement in the articles, to pay the sum awarded to be due by the arbitrators. This contention is opposed by the defendant, in whose behalf it is claimed that the verdict in this case (if any be given for the plaintiff) must be limited to the debt, or indebtedness, of the defendant to the plaintiff, as found and reported by the arbitrators. This difference between the parties makes it necessary that we should charge you upon the subject of agreements for fixed, or stipulated damages. It is not a very uncommon thing for parties entering into a contract, especially where the measure of damages for the breach of it would be difficult to ascertain, to stipulate, as they may lawfully do for a certain sum as such measure. When this is done, if suit be brought upon the instrument to recover the damages agreed upon (which are known as stipulated or ascertained damages), and breach of the stipulation be shown, the party complaining of the breach is entitled to a verdict for the amount, provided he has brought proper action therefore, and in the statement of his case, have unequivocally shown that he bases his claim absolutely upon such stipulation. In this case there appears to be two grounds upon which the verdict in his recovery (if you give him a verdict) should not be benefitted by the stipulation for fixed damages. The first is, that it is not in our opinion absolutely certain, as it should be, that the parties intended in this case that the one should recover against the other the full sum of six hundred dollars for the breach of the agreement; for the reason that the sum is characterized in the instrument as well as \\\" penal sum,\\\" as \\\" ascertained and liquidated damages.\\\" While this in itself, might not be sufficient to fix the sum as a penalty; yet the form of action adopted is debt, and not covenant, the former not being a fit action for the recovery of damages, however resulting, but the latter the appropriate one where, as in this case, the action is upon a sealed instrument. Besides all this, the form of the breach in the declaration, taking it in its entirety is the same as that used in suits to recover for damages sustained by reason of breaches of the condition of bonds with collateral conditions brought under our statute, the judgment in such cases being for the penalty on account of the forfeiture of the bond. We can not, consistently, instruct you that the plaintiff is entitled to recover the sum of six hundred dollars, in view of the considerations, but sum only of two hundred and two dollars and ninety-four cents, with interest from the date of the award.\\nVerdict for the plaintiff.\"}"

delaware/6777478.json

@@ -0,0 +1 @@
+"{\"id\": \"6777478\", \"name\": \"Andre OWENS, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee\", \"name_abbreviation\": \"Owens v. State\", \"decision_date\": \"2016-08-09\", \"docket_number\": \"No. 364, 2016\", \"first_page\": \"968\", \"last_page\": \"968\", \"citations\": \"145 A.3d 968\", \"volume\": \"145\", \"reporter\": \"West's Atlantic Reporter, Third Series\", \"court\": \"Delaware Supreme Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-11T02:11:01.698766+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Andre OWENS, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.\", \"head_matter\": \"Andre OWENS, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.\\nNo. 364, 2016\\nSupreme Court of Delaware.\\nSubmitted: July 29, 2016\\nDecided: August 9, 2016\", \"word_count\": \"41\", \"char_count\": \"268\", \"text\": \"Court Below \\u2014 Superior Court of the State of Delaware, Cr. ID No. 0201010358\\nDISMISSED.\"}"

delaware/6795703.json

@@ -0,0 +1 @@
+"{\"id\": \"6795703\", \"name\": \"John M. FRANKLIN, Defendant Below-Appellant, v. STATE of Delaware, Plaintiff Below-Appellee\", \"name_abbreviation\": \"Franklin v. State\", \"decision_date\": \"2016-05-23\", \"docket_number\": \"No. 206, 2016\", \"first_page\": \"1018\", \"last_page\": \"1018\", \"citations\": \"141 A.3d 1018\", \"volume\": \"141\", \"reporter\": \"West's Atlantic Reporter, Third Series\", \"court\": \"Delaware Supreme Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T19:08:38.085220+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John M. FRANKLIN, Defendant Below-Appellant, v. STATE of Delaware, Plaintiff Below-Appellee.\", \"head_matter\": \"John M. FRANKLIN, Defendant Below-Appellant, v. STATE of Delaware, Plaintiff Below-Appellee.\\nNo. 206, 2016\\nSupreme Court of Delaware.\\nSubmitted:'May 6, 2016\\nDecided: May 23, 2016\\nRehearing En Banc Denied June 13, 2016\", \"word_count\": \"47\", \"char_count\": \"306\", \"text\": \"Court Below \\u2014 Superior Court of the State of Delaware, Cr. ID No. 0304010407C\\nAFFIRMED.\"}"

delaware/6806284.json

@@ -0,0 +1 @@
+"{\"id\": \"6806284\", \"name\": \"Anthony L. GILMORE, Defendant Below-Appellant, v. STATE of Delaware, Plaintiff Below-Appellee\", \"name_abbreviation\": \"Gilmore v. State\", \"decision_date\": \"2016-03-10\", \"docket_number\": \"No. 35, 2016\", \"first_page\": \"77\", \"last_page\": \"77\", \"citations\": \"135 A.3d 77\", \"volume\": \"135\", \"reporter\": \"West's Atlantic Reporter, Third Series\", \"court\": \"Delaware Supreme Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T17:53:01.148853+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Anthony L. GILMORE, Defendant Below-Appellant, v. STATE of Delaware, Plaintiff Below-Appellee.\", \"head_matter\": \"Anthony L. GILMORE, Defendant Below-Appellant, v. STATE of Delaware, Plaintiff Below-Appellee.\\nNo. 35, 2016\\nSupreme Court of Delaware.\\nSubmitted: January 27, 2016\\nDecided: March 10, 2016\\nRehearing En Banc Denied March 29, 2016\", \"word_count\": \"34\", \"char_count\": \"237\", \"text\": \"AFFIRMED.\"}"

delaware/6810116.json

@@ -0,0 +1 @@
+"{\"id\": \"6810116\", \"name\": \"Augustus H. EVANS, Jr., Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee\", \"name_abbreviation\": \"Evans v. State\", \"decision_date\": \"2016-04-01\", \"docket_number\": \"No. 121, 2016\", \"first_page\": \"762\", \"last_page\": \"763\", \"citations\": \"135 A.3d 762\", \"volume\": \"135\", \"reporter\": \"West's Atlantic Reporter, Third Series\", \"court\": \"Delaware Supreme Court\", \"jurisdiction\": \"Delaware\", \"last_updated\": \"2021-08-10T17:53:01.148853+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Augustus H. EVANS, Jr., Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.\", \"head_matter\": \"Augustus H. EVANS, Jr., Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.\\nNo. 121, 2016\\nSupreme Court of Delaware.\\nSubmitted: March 29, 2016\\nDecided: April 1, 2016\\nReargument Denied April 21, 2016\\nRehearing En Banc Denied April 21, 2016\", \"word_count\": \"42\", \"char_count\": \"275\", \"text\": \"DISMISSED.\"}"