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This doctrine has been affirmed in Emery the vendee falsely claimed to be acting. It V. Seavey, 148 Mass. 566-569, 20 N. E. 177, was a reversal of a finding of fact and not and Harrison v. Dolan, 172 Mass. 395, 396, of a ruling of law. Cundy v. Lindsay, L. 52 N. E. 513. R. 3 App. Cas. 459.

The principle of the passing of title under In the case at bar the verdict of the jury a de facto contract is not to be confused with establishes the fact that the sale was made a line of cases where the swindling vendee to the vendee as an individual on his own acts, not for himself, but represents that he responsibility, and therefore the fraudulent is the agent of or is acting for a third party. misrepresentation as to name had the same In such a case it has been held that no title effect as a fraudulent misrepresentation as passes because the vendor does not intend to to the amount of property he possessed. It sell to the party with whom he is personally rendered the sale, not void, but voidable. dealing, but with the third party, for whom | The evidence justifies the finding. the swindler claims to be acting but is not. The third case considered in Edmunds et al. v. Merchants' Despatch Transportation Co., 135 Mass. 283, belongs to this class, and on this point the opinion says:

"The third case differs materially from the others. In that case, the contract did not purport, nor the plaintiff's intend, to sell to the person who was present and ordered the goods. The swindler, introduced himself as a brother of Edward Pape of Dayton, Ohio, buying for him. By referring to the Mercantile Agency, he tacitly represented that he was buying for the Edward Pape, who was there recorded as a man of means. The plaintiffs understood that they were selling, and intending to sell, to the real Edward Pape. There was no contract made with him, because the swindler who acted as his agent had no authority, but there was no contract of sale made with any one else. The relation of vendor and vendee never existed between the plaintiffs and the swindler. The property in the goods, therefore, did not pass to the swindler; and the defendant cannot defend, as in the other cases, upon the ground that it has delivered the goods to the real owner."

The English cases observe the same distinction and recognize the force of a de facto contract of sale. Whether the sale was intended to be to the identical person with whom the dealings are had or to another for whom he is acting is a question of fact, and upon the decision of that fact depends the principle of law to be applied. In Hardman v. Booth, 1 H. & C. 803, no contract of sale was held to exist, because the court found that the plaintiff believed he was contracting with the firm of Gandell & Co., and not with Edward Gandell personally, who made the trade and falsely represented himself to be a member of that firm and to be acting for them.

[2] Having settled this primary question, as to the nature of the sale, it follows that the vendor gave the vendee an apparent or implied right to dispose of the property, and that a bona fide purchaser for value from the vendee would be protected in his purchase. The innocent purchaser of goods for a valuable consideration, even from a vendee who has obtained them by fraud, obtains a good title as against the original vendor. "He has the superior equity." Neal v. William, 18 Me. 391; Ditson v. Randall, 33 Me. 202; Titcomb v. Wood, 38 Me. 561; Tourtellot v. Pollard, 74 Me. 418.

The good faith of the plaintiff here is He is second removed abundantly proved. from Roche the defrauding purchaser, and there is no evidence tending to charge either Costly, the first purchaser from Roche, or the plaintiff who bought from Costly, with knowledge of the infirmity of the title.

[3] Had Roche been a resident of Winn, I where the mortgage was recorded, Green would have been justified in taking the horse under the mortgage. R. S. c. 96, § 1. But as Roche was not a resident of that town the record was not constructive notice of the existence of the mortgage, and was a mere nullity as against a bona fide purchaser without notice. Horton v. Wright, 113 Me. 439, 94 Atl. 883.

Motion overruled.

(7 Boyce, 73)

HITCH v. BURRIS et al.

(Superior Court of Delaware. Sussex. Feb. 7,
1918.)

JUSTICES OF THE PEACE 138 (1)— APPEAL-
RECORD-REQUISITES.

In Lindsay v. Cundy, 1 Q. B. Div. 348, the court, including Blackburn and Mellor, JJ., Where the certified transcript sent up by the held that upon the facts disclosed the inten- the summons, or any adjournment, or the day justice did not show the day of the return of tion of the vendors was to contract with to which any adjournment was made, or that the person who was the fraudulent vendee, the defendant had knowledge of any adjournand not with another party whose name he ment, or that the justice entered judgment on a day to which the case was adjourned, though had simulated. Accordingly title was held it did show that a physician in attendance upon to pass. On appeal to the House of Lords the defendant made application to the justice, this finding was reversed, not because the on the day the summons was issued, for a conprinciple of law had not been well stated, but D. 1917, when, as shown, "the plaintiff appears tinuance of the hearing until December 22, A. because the court found as a fact that there and the defendant does not appear, and after was no contract between the vendors and the hearing the allegations of the plaintiff and his fraudulent vendee, and the vendors intend-proofs and maturely considering the same judgment is hereby rendered by default of appeared to contract with and believed they were ance in favor of the plaintiff," the record was contracting with the third party for whom fatally defective, in view of Rev. Code 1915,

On

§4028, requiring that every justice of the peace, charge of adultery filed by defendant. shall make a fair entry, in a docket, of every motion to withdraw answer, in order to make action commenced before him, therein setting down certain matters, "and in case of a 'forth- objections to the petition. Motion allowed. with' summons, the day of the return, every Argued before CONRAD and HEISEL, JJ. adjournment and the day to which the same William S. Prickett, of Wilmington, for shall be." plaintiff. Edward W. Cooch, of Wilmington, for defendant.

Action by Edward F. Burris and another, trading as E. F. Burris & Son, before a justice of the peace, against Roscoe C. Hitch. Judgment for plaintiffs. Defendant brings certiorari. Judgment reversed.

Argued before BOYCE and CONRAD, JJ. Andrew J. Lynch, of Georgetown, for plaintiff. James M. Tunnell, of Georgetown, for

defendant.

A "forthwith" summons was issued on December 18, A. D. 1917. Rev. Code 1915, § 4028, requires that every justice of the peace shall make a fair entry, in a docket, of every action commenced before him, therein setting down certain matters, "and in case of a 'forthwith' summons, the day of the return, every adjournment and the day to which the same shall be," etc.

The certified transcript sent up by the justice did not show the day of the return of the summons, or any adjournment, or the day to which any adjournment was made, or that the defendant had knowledge of any adjournment, or that the justice entered judgment on a day to which the case was adjourned, though it did show that a physician in attendance upon the defendant made application to the justice, on the day the summons was issued, for a continuance of the hearing until December 22, A. D. 1917, when, as shown:

The petition filed charged the defendant with specific acts of adultery with one T., at No. 427 East Third street, in the city of Wilmington, county of New Castle and state of Delaware, at divers times during the months of June, July and August, 1917; also other acts of adultery with divers other men at times and places unknown to the petitioner. Early in the term, to which the summons was returnable, Mr. Cooch, for defendant, filed an answer, and within two days thereafter asked leave of the court to withdraw the answer in order to raise objections to the petition. This application was opposed.

PER CURIAM. We think that petitions in divorce proceedings, and answers when necessary, are the pleadings in those cases, and we see no reason why the court should not, in its discretion, allow an answer to be withdrawn and other action taken. Of course, if it were apparent that this course was being pursued for the purpose of delaying the hearing of the case, that would be a matter for the court to pass upon, but that question is not raised in this case.

We think we should allow the answer to be withdrawn at this time.

(7 Boyce, 76)

"The plaintiff appears and the defendant does not appear and after hearing the allegations of the plaintiff and his proofs and maturely con- CULVER et al. v. PHILADELPHIA, B. & W. sidering the same judgment is hereby rendered by default of appearance in favor of the plaintiff," etc.

The exceptions to the record were as above indicated.

BOYCE, J. The record is fatally defective. Jaques v. Rice, 1 Har. 33. The record in this case distinguishes it from Blodgett v. Hudson, 6 Boyce, 462, 100 Atl. 571. The judgment is reversed.

(7 Boyce, 75)

PATRICK v. PATRICK.

(Superior Court of Delaware. New Castle.
Feb. 4, 1918.)

PLEADING 339-WITHDRAWAL OF PLEAD-
INGS-DIVORCE SUITS.

R. CO.
(Superior Court of Delaware.
7, 1918.)

1. ABATEMENT AND REVIVAL
RER-WAIVER.

Sussex. Feb.

83-Demur

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A corporation defendant is sufficiently identified by pleading its name, though the prefix "the" was omitted from the name.

Action by Perry M. Culver and others, late trading as the George W. Stradley Can

In a divorce case, the petition and the answer, when necessary, are the pleadings, and the court may, in its discretion, allow an answer to be withdrawn in order to raise objections toning Company, against the Philadelphia, Balthe petition; it not appearing that this course timore & Washington Railroad Company. is being pursued for the purpose of delaying the On motion to strike out plea in abatement hearing. after judgment on general demurrer to the

Action for divorce by Lafayette David Pat-declaration. Motion allowed. rick against Fleta E. Patrick. Answer to the Argued before BOYCE and CONRAD, JJ.

Daniel J. Layton, Jr., and James M. Tunnell, both of Georgetown, for plaintiffs. Frank M. Jones, of Georgetown, for defendant.

The docket entries to the time of making the motion were:

BOYCE, J., delivering the opinion of the court:

[1] The law has settled the order of pleadings. This order should generally be pursued. A demurrer to the declaration should not precede a plea in abatement. After a plea in bar to the action, or after a demurrer to the declaration and judgment by the court on the demurrer, a plea in abatement comes too late, except, it may be, by leave of the court, for matter arising after the

"Summons Case. Issued with copy, June 2, 1917, and directed to the sheriff of New Castle county. Summoned personally Philadelphia, Baltimore & Washington Railroad Company, a corporation of the state of Delaware, by serving the within writ and delivering a copy thereof personally to George Gray, director of Philadel- commencement of the action, or for matter phia, Baltimore & Washington Railroad Com- without the knowledge of the defendant, at pany, a corporation, the president or other offi- the time of pleading in bar, or demurring to cers of said Philadelphia, Baltimore & Wash- the declaration, as in the case of Kirwan ington Railroad Company, a corporation as aforesaid, not residing in the state of Delaware Mfg. Co. v. Truxton, 2 Pennewill, 48, 44 Atl. on the fourth day of June, A. D. 1917. So Ans. 427. Theodore W. Francis, Shff.

"1917, August 6. Narr. with copy filed: rule pleas. 1917, Sept. 10. Demurrer with copy filed. 1917, Sept. 10. The defendant enters 'joinder.' 1917, Oct. 8. Demurrer overruled. Judgment respondeat ouster. 1917, Nov. 5. Plea in abatement with copy filed."

It is said in the plea in abatement that the defendant is named and called the Phil

[2, 3] A plea in bar or a demurrer generally admits that there is no foundation for a plea in abatement. Besides the identity of the defendant in this case is clear. The motion to strike out the plea in abatement is allowed.

STATE v. VON BUREN.

(7 Boyce, 79)

adelphia, Baltimore & Washington Railroad (Court of General Sessions of Delaware. New Company, a corporation of the state of Dela

ware.

Counsel for the plaintiff contended that after general appearance, and invoking the judgment of the court on a general demurrer, a mere misnomer of the defendant could not be relied on for the abatement of the action. It is a general rule that dilatory pleas must be pleaded at a preliminary stage of the suit. Steph. Plead. 378; 31 Cyc. 163.

The misnomer of a corporation, like that of an individual defendant, should be taken advantage of in limine, by plea in abatement, or it is waived. 6 Thomp. Corp. § 7613.

A general demurrer is pleading to the merits. After judgment of the court on the plaintiff's cause of action, it is too late to plead in abatement. Paulk v. Tanner, 106 Ga. 219, 32 S. E. 99; Graham v. McCarty, 69 Tex. 323, 7 S. W. 342; Knowlton v. Culver, 2 Pin. (Wis.) 86; 1 Enc. Plead. & Prac. 36; 1 C. J. 260.

A plea in abatement, being a dilatory plea, should be filed at the earliest practicable time, and should precede pleas to the merits of either law or facts. Fisher v. Cook, 125 Ill. 280, 17 N. E. 763; Heilman v. Martin, 2 Ark. 158.

The allowance of time to plead, as fixed by the rules of court, corresponds to the general imparlance as known in the early English common-law practice; so that after such an imparlance, the defendant cannot plead any matter in abatement.

Counsel for the defendant relied on the fact that the demurrer had been overruled, with judgment respondeat ouster entered, and on the case of Kirwan Mfg. Co. v. Truxton, 2 Pennewill, 48, 44 Atl. 427.

Castle. Jan. 16, 1918.)

1. CRIMINAL LAW 728(3)—ARGUMENT-OB

JECTION.

The time to object to any remarks of the Attorney General in his closing argument was when they were made; and the court, on request after the argument, could not instruct the jury to ignore such remarks. 2. LARCENY 1-DEFINITION.

of the personal property of another without the Larceny is the felonious or wrongful taking

consent of the owner, and with the intention on the part of the taker to convert the property to his own use.

and Phrases, First and Second Series, Larceny.] [Ed. Note.-For other definitions, see Words

3. LARCENY

41- INTENT-PRESUMPTION

AND BURDEN OF PROOF.

If defendant took certain diamond rings without the owner's consent, the law presumes that he took them with the intention of converting them to his own use, and the burden is on him to satisfy the jury that he took them for a lawful, and not an unlawful, purpose. 4. LARCENY 3(2)-REQUISITES INTENT. If defendant, charged with the larceny of certain diamond rings, satisfied a jury that he did not take them with the intention of converting them to his own use, he did not commit larceny, as the intention must be in his mind 5. LARCENY 26 INTENT when the property is taken. Goods.

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RETURN OF

If a defendant intended, at the time the personal property was taken, to convert it to his may have later repented of the taking and reown use, it was larceny, notwithstanding he turned the property. 6. CRIMINAL LAW

561(2)-SUFFICIENCY OF EVIDENCE-REASONABLE Doubt.

In a prosecution for larceny, the jury could not convict, unless they were satisfied beyond a reasonable doubt that defendant was guilty.

Fred Von Buren was indicted and tried for the larceny of two diamond rings. Verdict, guilty.

Argued before HEISEL, J.

David J. Reinhardt, Atty. Gen., and Percy Warren Green, Deputy Atty. Gen., for the State. Philip L. Garrett, of Wilmington, for defendant.

Buren took the rings he intended to keep them, it constituted larceny, notwithstanding he may have at a later time changed his mind and decided to return the rings.

HEISEL, J. (charging the jury). [2] Gentlemen of the jury: In this case the defendant, Fred Von Buren is charged with the larceny of two diamond rings, the property of Charles H. Brown Company. Larceny is the felonious or wrongful taking of the personal property of another without the consent of the owner and with the intention on the part of the taker to convert the property

to his own use.

In this case the state charges, and has produced evidence to prove, that Von Buren on the 17th day of November last took the property in question from Charles H. Brown Company without their consent, intending to convert it to his own use. Von Buren does not deny that he took the property without the consent of the owners thereof, but claims that he took it in the way of a joke, intending to return it.

On the morning of November 1, 1917, the accused went into the jewelry store of B., in the city of Wilmington, and engaged in conversation with Miss P., a clerk in the store, who was, at the time, arranging certain articles of jewelry in the front show window. She had placed six rings in the window, including the two diamond rings in question, valued at about $40 and $70 respectively, when she was called to the rear of the store, leaving the accused at the window. Upon her return the accused arose and left, saying he would see her at noon and take her out to lunch. Miss P. then discovered that the two diamond rings were missing and notified her employer. The accused not returning at noon, the city detective department was notified. The department, B. and Miss P. during the afternoon sought in vain to locate Von Buren, who early in the evening of the same day called Miss P. over the telephone at her residence and stated that he [3-5] If you believe from the evidence bedid not return to the store at noon because yond a reasonable doubt-as you must, behe had to go to Carney's Point, and during cause it is admitted that Von Buren took the conversation asked Miss P. if she had the rings without the consent of Brown Commissed anything. She admitted that she had pany, the owners, then the law presumes missed the two diamond rings. He inform- that he took them with the intention of coned her that he had taken the rings as a jokeverting them to his own use, and the burden and would bring them out to her, which is upon Von Buren to satisfy you that he later in the evening he did. Miss P. notified the detective department that Von Buren had returned the rings, claiming that he had taken them as a joke. Two detectives thereupon went to the house of Miss P. and arrested him upon the charge of larceny preferred by B. Von Buren offered to pay B. for the lost time and expense which he had occasioned, saying both to the police officers and to B. that his taking the rings was merely a joke.

Counsel for the accused interposed objection to the comment of the Attorney General to the jury upon the fact that the defendant had failed to prove his good reputation for honesty and fair dealing. The objection was overruled upon the authority of State v. Davis, 3 Pennewill, 220, 50 Atl. 99.

At the conclusion of the arguments to the jury, counsel for defendant requested the court to instruct them to ignore any remarks made by the Attorney General in his closing address, except those in reply to the address made for the defendant, contending that the Attorney General is precluded from bringing in any new matter in his closing address.

HEISEL, J. [1] The court cannot so instruct the jury. The time to object to any remarks would be at the time they were made and not at this stage of the case.

The Attorney General requested the court to charge the jury that if at the time Von

took them for another purpose, that is, for a lawful purpose, and not for an unlawful purpose; but if he can satisfy you that he did not take them with the intention of converting them to his own use, then he did not commit larceny, as the intention must be in his mind at the time the property was taken. But if he intended at the time the property was taken to convert it to his own use, it was larceny, notwithstanding he may have later repented of the taking and returned the goods.

[6] You have heard the evidence. If you are satisfied from the evidence beyond a reasonable doubt that he did take these goods without the consent of the owner and with the intention of converting the same to his own use, you should find him guilty. If you are not so satisfied, you should find him not guilty.

Verdict, guilty.

(7 Boyce, 2)

BUNTING v. HUDSON.
(Superior Court of Delaware. Sussex. Feb. 6,
1918.)

JUSTICES OF THE PEACE 138(2)-DOCKETS-
STATEMENT OF CAUSE OF ACTION-STATUTE.

Under Rev. Code 1915, § 4028, requiring a justice of the peace to set down in his docket "the cause of action" of every action commenced before him, a justice's docket, stating the cause of action as "Assumpsit for $16.08," did not in

form defendant of the nature and character of | 3. ADVERSE POSSESSION 13-ESSENTIALS the demand as it did not show whether the ac IN GENERAL. tion was based on an express or implied promise or contract for the payment of money, delivery of goods, or for any other cause of action within a justice's jurisdiction.

Action before a justice of the peace by Clara Hudson against Moxie Bunting. Judgment for plaintiff, and defendant brings certiorari. On exceptions to the record and proceedings before the justice. Reversed. Argued before BOYCE and CONRAD, JJ. Daniel J. Layton, Jr., of Georgetown, for plaintiff below. James M. Tunnell, of Georgetown, for defendant below.

Certiorari No. 3, February Term, 1918. The record sent up shows that the justice set down in his docket the cause of action as, “Action on assumpsit for $16.08 is demanded."

The exceptions, in substance, are:

The record does not show (1) the cause of action; (2) that the justice had jurisdiction of the cause of action; and (3) that the justice, as required by the statute, set down in his

docket the cause of action.

To acquire title by adverse possession, the possession must be exclusive, notorious, adverse to the rights of all others, and continued uninterrupted for a period of at least 20 years.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Adverse Possession.]

4. ADVERSE POSSESSION 13- WHAT CONSTITUTES.

In action of trespass, whether acts constituted adverse possession depends somewhat upon the character of the land, purpose for which used, and conditions existing at the time of the alleged trespass.

5. ADVERSE POSSESSION 103-MIXED POS

SESSION.

In trespass, where woodland lies between two persons, both claiming it, it is a mixed possession, and the law adjudges it to him who has the legal title. 6. EVIDENCE 383(3)-SURVEYS-WEIGHT.

In a boundary dispute, a survey of land made in pursuance of an order of the Orphans' Court is to be considered in conjunction with other evidence, as other records are, and given such weight as the jury thinks it is entitled to.

Action of trespass in justice court by the State, on complaint of Benjamin F. Melson and wife, against James A. Willoughby. Freehold being involved, the justice certified the record to Superior Court, pursuant to Rev. Code 1915, § 4065. Charge to the jury. Verdict, not guilty.

Argued before BOYCE and RICE, JJ.

Charles S. Richards, of Georgetown, for plaintiffs. Andrew J. Lynch and James M. Tunnell, both of Georgetown, for defendant.

Action of trespass for injury to real es tate, certified by a justice of the peace, No 11, April term, 1914.

BOYCE, J. Rev. Code 1915, § 4028, requires every justice of the peace to set down in his docket, among other matters, "the cause of action" of every action commenced before him. The obvious purpose of the requirement is to reasonably inform the defendant of the nature and character of the demand which he is called on to meet or defend. The statement of the cause of action as "assumpsit for $16.08" does not so inform the defendant; for from such statement it does not appear whether the action is based on an express or implied promise, or contract, for the payment of money, delivery of produce, goods, wares or merchandise, or for personal labor, hire or service, or for any other cause of action within the jurisdiction of a justice of the peace. Crawford v. Eng-county, by cutting trees standing thereon. land, 2 Houst. 171; Guarantee Fund, etc., v. Henderson, 3 Pennewill, 159, 50 Atl. 535; Ralph, Adm'r., v. Pennel, 4 Houst. 542. The judgment is reversed.

(7 Boyce, 83)

WILLOUGHBY.

Action commenced before a justice of the peace by Benjamin F. Melson and Sallie R. Melson against James A. Willoughby to recover damages for direct and immediate inuate in North West Fork hundred, Sussex juries to real property of the plaintiffs, sit

Verdict not guilty. The defendant appearing did say that the place wherein the trespass is alleged is his freehold; whereupon the justice certified the record of the action to the Superior Court of the county, in accordance with the statute in that behalf.

STATE, on complaint of MELSON et ux., V. of the jury: This is an action of trespass RICE, J. (charging the jury). Gentlemen brought on the complaint of Benjamin F. (Superior Court of Delaware. Sussex. Oct. 9, Melson and wife, Sallie R. Melson, against 1917.)

James A. Willoughby, the defendant. The plaintiffs claimed that the defendant did on the seventh day of February, 1914, willfully pre-enter upon the cut trees standing on lands of the plaintiffs in North West Fork hundred, Sussex county.

1. TRESPASS 46(2)-SUFFICIENCY OF TITLE
IN PLAINTIFF-PROOF.
In trespass, plaintiff must show by a
ponderance of evidence that at the time of the
alleged trespass he had actual possession of the
land.

2. TRESPASS 19(2)-LEGAL TITLE-PROOF.

In trespass on real estate, legal title may be shown either by claim of paper title-that is, by deeds, plots, or records-or by adverse pos

session.

The action was commenced before a justice of the peace. The defendant appeared and claimed ownership of the premises whereon the trespass was alleged to have

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