be stopped in case it was a child, he cannot, as a matter of law, be held to have exercised reasonable care, where, when he did discover it was a young child, it was too late to prevent running the infant down. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1365-1381; Dec. Dig. § 400.*] Appeal from Supreme Court. Action by Antonio Minichino, by his next friend, against the Public Service Railway Company. A judgment for plaintiff being affirmed by the Supreme Court, defendant appeals. Affirmed. The opinion in the Supreme Court was as follows: This is an action for personal injuries. The plaintiff, a boy 32 years of age at the time of the accident, while sitting upon the ties just outside the north rail of the east-bound track of the defendant's railway between Jersey City and Newark, was struck by the running board of an open car. The plaintiff had a verdict, and the judgment entered thereon is now before us for review. The only matter argued by counsel for the plaintiff in error is the refusal of the trial court to direct a verdict in favor of the defendant. It is contended that this course should have been pursued for the reason that the testimony disclosed no negligence on the part of the defendant's employés who were operating the car. The testimony shows that the motorman saw the boy in plenty of time to stop his car before it reached the place where the boy was sitting, but thought that what he observed was a dirty piece of paper, and so gave the matter no thought until he was within a few feet of the plaintiff, when the latter raised up. The motorman thereupon applied the emergency brake, but too late to avoid the accident. We do not think that it can be said, as a matter of law, that the motorman was not negligent. It was a question for the jury to say whether, having observed this object on the track, he exercised reasonable care in running it down without first ascertaining whether it was what it appeared to be, or whether it was, as it turned out to be, a human being. The judgment under review will be affirmed. Lefferts S. Hoffman, of Newark, for appellant. Beecher & Bedford, of Newark, for respondent. PER CURIAM. The judgment is affirmed, for the reasons stated in the memorandum of the Supreme Court. (5 Boyce, 209) STECKEL v. BARNES. (Superior Court of Delaware. New Castle. Oct. 12, 1914.) PLEADING (§§ 339, 409*)-DEFECTS-WAIVER BY PLEADING TO DEFECTIVE PLEA. The right to require the defendant to draw out his plea is waived by filing a replication to the plea, and while the court has power to permit the replication to be withdrawn in order that plaintiff may decline to reply to the plea, it will not do so, in the absence of peculiar and exceptional facts. [Ed. Note.--For other cases, see Pleading, Cent. Dig. §§ 1033-1045, 1375–1383, 1386; Dec. ,Dig. §§ 339, 409.*] Action by assumpsit (No. 100, January term, 1914) by Frank E. Steckel against James M. Barnes. On motion by plaintiff to amend replications by withdrawing the replications to defendant's fourth plea, so that he may decline to reply to the said fourth plea until the same shall have been drawn out. Application refused. Argued before PENNEWILL, C. J., and CONRAD, J. Robert H. Richards and Aaron Finger, both of Wilmington, for plaintiff. Saulsbury, Morris & Rodney, of Wilmington, for defendant. PENNEWILL, C. J. (delivering the opinion of the court). In the above case the plaintiff asks leave to amend his replications by withdrawing the replications to defendant's fourth plea, so that he may decline to reply to the said plea until the same shall have been drawn out. The court are of the opinion that the motion must be refused for the reason that by failing to require the defendant to draw out said plea when he had the opportunity and before filing his replications, the plaintiff waived his right in that regard. We are not unmindful of the fact that the constitutional and statutory provisions respecting the amendment of pleadings are very broad, but, as was said by the court in Wright v. Wilmington City Ry. Co., 2 Marvel, 141, 42′ Atl. 440, "there are limitations, and they have been recognized through our reports." One of those limitations, distinctly recognized in the case referred to, is, that if a party has the right to require the defendant to draw out his plea, or draw it out more fully and formally, and does not exercise such right but elects to plead, he waives the right and cannot successfully insist upon it after pleading. In the case above mentioned release was pleaded, which upon motion of the plaintiff was drawn out but not fully and sufficiently to enable the plaintiff to intelligently plead thereto. The plaintiff, notwithstanding the insufficiency, filed a general replication thereby taking issue upon the plea. At the trial and "after the plaintiff had rested under the pleading and the defendant had put in evidence upon the point," the defendant asked leave to amend his replication. It was held "too late on the part of the plaintiff to ask leave to amend.' It is true that the application in the present case comes before the trial, but we think it nevertheless falls within the reasoning and decision of the case to which we have referred. In that case the court said: "When you demanded that the plea of release should be drawn out fully and formally, you had a right to stand upon it, and if he did not so draw it out, you were not bound to plead. Upon application to this court we could have compelled him to draw it out within the terms of the law, in order that you might intelligently plead." *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes "You are too late in making this applica- | the property of the plaintiff at the time of tion. * ** This plea was generally pleaded. bringing this suit, was in the hands of a receivYou did not put in the proper replication; you er in Maryland. It was also admitted that the waived it-and that is one ground upon which receiver was not made a party. It was alleged the courts have held that it is too late; that by the counsel for the defendant, that they had is, after waiver." no knowledge whatever of the appointment of said receiver until within a few hours prior to making the application for continuance, and had had no opportunity to avail themselves of any defense, if any, growing out of that fact; have time to examine that question and to and the court announced that they ought to take such advantage of it as they were entitled to. The court therefore continued the case to the April term, to be pleaded to issue and ready for trial at said term under a peremptory We are aware of the decision given in the case of Kirwan Mfg. Co. v. Truxton, 2 Pennewill, 48, 44 Atl. 427, but that was an exceptional case, and the court expressly stated that it was not to be considered as an authority except in a like case under like circumstances. Inasmuch as the court in that case went further perhaps than this court had ever gone before in allowing amendments, it may be well to refer to it more fully in order to show that it cannot be regarded as an authority in support of the present application. The case had been continued at the preceding term with general leave to amend. At that time certain pleas in bar had been filed, but since the continuance the defendant had filed three additional pleas, two of which were pleas in abatement, and one a plea in bar. Counsel for defendant asked leave to withdraw his pleas in bar, leaving the pleas in abatement which had been filed since the preceding term; also to amend the third additional plea so as to make it a plea in abatement. rule. * "There may be cases in which the court would not exercise its discretion to the extent of granting such leave as we grant in this case, to abatement. This decision applies to the parwithdraw a plea in bar and to file a plea in ticular circumstances and claims of this case and this application." Judge Spruance in delivering the opinion of the court concluded by saying: "Counsel for the defendant have examined into the question then raised, and have come It clearly appears, therefore, that the court allowed the amendment because of the peWe quote from the concurring opinion de- culiar and exceptional facts of the case belivered by Judge Grubb: fore them, none of which exist in the present case. The court have the power in the present case, as the court had in the Kirwan Case, to allow the amendments asked for, but we think such power should not be exercised when the case is at issue and the defendant has had the opportunity to obtain the leave now desired, and waived such right by plead "In concurring with Judge Spruance in this decision, I simply want to add that this matter of allowing a party to withdraw his pleadings, or any portion of them, or to amend the pleadings, or any portion of them, is in the discretion of the court. I do not consider that an application of this kind, which is to introduce a plea in abatement after a plea in bar has been filed, would be granted by the court in every case; but where our discretion is appealed to, in a case having peculiar circumstances like this, I consider it is allowable. In ing. this case, at the last term, it was admitted that The application is refused. (5 Boyce, 212) BRADFIELD v. STATE. (Superior Court of Delaware. New Castle. Oct. 6, 1914.) CRIMINAL LAW (§ 1013*)—APPEAL-CERTIORARI-ELECTION OF REMEDIES. Where a defendant, after conviction in the municipal court, sued out a certiorari, and at the same time took an appeal to the Court of General Sessions, and thereafter elected to stand on his appeal, the certiorari proceedings will be discontinued. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2570; Dec. Dig. § 1013.*] William M. Bradfield was convicted in the municipal court of the city of Wilmington of a crime, and he petitioned for certiorari (No. 31, September term, 1914), and also took an appeal to the Court of General Sessions (No. 120, September term, 1914). Certiorari discontinued. Argued before PENNEWILL, C. J., and RICE, J. Josiah O. Wolcott, Atty. Gen., for the State. Howell S. England, of Wilmington, for defendant. PER CURIAM. The plaintiff having elected to proceed on his remedy by appeal, his other remedy by certiorari, pending at the same time, is discontinued at his own cost. (5 Boyce, 213) STATE ex rel. SAULSBURY v. LEWIS et al. (Superior Court of Delaware. New Castle. July 11, 1914.) 1. MANDAMUS (§ 157*)-MOTION TO DISMISS PETITION-EFFECT AS ADMISSION. A motion to discharge the rule to show cause why a writ of mandamus should issue, and to dismiss the petition, admits those alle gations in the petition which are well averred. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 317-323, 371; Dec. Dig. § 157.*] 2. MANDAMUS (§ 162*)-MOTION TO QUASH ALTERNATIVE WRIT-EFFECT AS ADMISSION. In mandamus the alternative writ takes the place of the declaration, and the facts therein well pleaded are admitted by a motion to quash the alternative writ. [Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 338-340; Dec. Dig. § 162.*] 3. MANDAMUS (§ 160*)-ALTERNATIVE WRITSUFFICIENCY. An alternative writ of mandamus to compel the department of elections to appoint registrars from the list furnished by the party chairman, as required by Act May 20, 1898 (21 Del. Laws, c. 40) § 3, par. 4, which shows that the list furnished was in conformity with the requirements of the statute, that the persons named therein had the proper qualifications for registration officers, and that the appointments for the district in question were not made as required by that act, entitles the relator to the peremptory writ, unless the allegations are properly denied by respondents. [Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 326-335; Dec. Dig. § 160.*] 4. ELECTIONS (§ 95*)-REGISTRARS-QUALIFI CATIONS. The requirement of Act May 20, 1898, § 3, par. 4, that the department of elections appoint the registrars of election from lists of eligible . persons submitted by the chairman of the two leading political parties, is a reasonable requirement for the promotion of fair elections, and does not violate Const. art. 14, which, after prescribing the oath for public officers, provides that no other oath, declaration, or test shall be required for any office of public trust. [Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 95, 96; Dec. Dig. § 95.*] 5. ELECTIONS (§ 101*)-OFFICERS-LISTS SUBMITTED BY PARTY CHAIRMAN. Under Act May 20, 1898, § 3, par. 4, requiring the department of elections to appoint the registrars of election from lists submitted by the party chairman, containing the names of at least six qualified persons in each election district, the list is in effect a distinct list for each district, and a fatal defect therein with respect to one or more districts does not vitiate the remainder of the list. Cent. Dig. § 99; Dec. Dig. § 101.*] [Ed. Note. For other cases, see Elections, Cent. Dig. § 99; Dec. Dig. § 101.*1 6. MANDAMUS (§ 74*)-SUBJECTS OF RELIEFADMINISTRATIVE DECISIONS. The determination by the department of elections whether the persons named on the list, submitted by the chairmen of the political parties as required by Act May 20, 1898, § 3, par. 4, possess the qualifications of registrars of election is administrative, and not of such a judicial character as will prevent a review of that decision by mandamus. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 150-157; Dec. Dig. § 74.*] 7. MANDAMUS (§ 160*)-ALTERNATIVE WRITDUPLICITY. An alternative writ of mandamus, ordering the department of elections to appoint registrars of election in several different districts from the list furnished by the chairman of the political party, as required by Act May 20, 1898, § 3, par. 4, is not duplicitous, since the duties therein commanded are certain, positive, similar and successive. [Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 326-335; Dec. Dig. § 160.*] 8. MANDAMUS (§ 164*)-RETURN-REQUISITES. The office of the return to an alternative obedience, and it must deny the allegations of writ of mandamus is to show a right to refuse the writ or show other facts sufficient to defeat the claim of the relator. [Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 344-360; Dec. Dig. § 164.*] 9. MANDAMUS (§ 162*)-RETURN-QUASHING PART OF RETURN. In mandamus proceedings, to compel the department of elections to appoint registrars from a list filed by a political party, as required by Act May 20, 1898, § 3, par. 4, the averment in the return that certain persons named for appointment do not reside at the addresses_given in the list, but not averring that they do not reside in the district, is not sufficient. [Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 344-360; Dec. Dig. § 164.*] *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 91 A.-63 12. ELECTIONS (§ 101*)-OFFICERS-APPOINT- and legal voter; that he is a member of the MENT-LIST SUBMITTED BY PARTY CHAIR MAN. Under Act May 20, 1898, § 3, par. 4, requiring the department of elections to appoint registrars from lists of six qualified persons in each election district, to be submitted by the chairman of the political parties, where one or more of the persons named in the list are not qualified to serve as registrars, the list may be disregarded for that district and persons not named therein appointed. [Ed. Note. For other cases, see Elections, Cent. Dig. § 99; Dec. Dig. § 101.*] Democratic party and also is chairman of the City Executive Committee of the Democratic party for the city of Wilmington. Second. That on the twenty-eighth day of May, A. D. nineteen hundred and fourteen, your petitioner as chairman of the City Executive Committee of the Democratic party for the city of Wilmington, in pursuance of a resolution of the said Executive Committee of the Democratic party in the city of Wilmington, filed with the Department of Elections for the city of Wilmington, a list of three and more names of properly qualified persons from each election district in the city of Wilmington, from which said names the Department of Elections for the city. names for each appointment accredited to the of Wilmington was compelled by law to select Democratic party as registrars, assistant registrars and election officers for the purpose of be held on the third day of November, A. D. registering voters and holding the election to nineteen hundred and fourteen. Mandamus by the state of Delaware, on relation of James Saulsbury, against Jacob Hadley Lewis and others, as members of the Department of Election for the City of Wilmington. Peremptory writ of mandamus issued for part of the relief prayed for, and denied for part. Argued before BOYCE, CONRAD, and D. nineteen hundred and fourteen, the said DeRICE, JJ. Robert G. Harman and John W. Brady, both of Wilmington, for relator. Philip L. Garrett and Frank L. Speakman, both of Wilmington, for respondents. On July 8, A. D. 1914, in vacation, the relator filed a petition and accompanying affidavits with the prothonotary for New Castle county, praying that a rule issue out of the Superior Court, in and for said county, directed to and requiring the respondents, constituting the members of the department of elections for the city of Wilmington, to show cause why a writ of peremptory mandamus shall not issue against them, requiring them to appoint certain registration officers, in the city of Wilmington, in accordance with the law. The prothonotary, in pursuance of section 3, chapter 775, volume 19, Laws of Delaware, Revised Code, p. 697, immediately transmitted the petition with accompanying affidavits to the Chief Justice of the state, who, under the authority of said statute, deeming the matters contained therein ought to be heard and determined before the term to be heard and determined before the term of the next regular session of said court, awarded the rule prayed for, and made it returnable at a special session of said court, to meet at the court house, in Wilmington, on the 11th day of July, A. D. 1914, at 11 o'clock a. m., as called by the Chief Justice, a majority of the members of said court deeming a special session expedient. The special session of said court having convened, in pursuance of said call, at the said time and place, formal application was made by counsel for the relator to file the said petition and accompanying affidavits, and leave was granted. The petition, among other things, averred: First. That your said petitioner is a citizen of the city of Wilmington, New Castle county and state of Delaware; that he was a registered voter at the last general election held in the state of Delaware, and still is, a registered Third. That on the sixteenth day of June, A. partment of Elections for the city of Wilmington as its meeting held, appointed as such registrars, assistant registrars and election officers the following men whose names did not appear upon said list so as aforesaid furnished by the said City Executive Committee of the Democratic party through its chairman as aforesaid. James L. Taggart as assistant registrar and election officer from the Sixth district of the Second ward, James J. Riley as assistant registrar and election officer from the Third district of the Third ward, William H. Blake as assistant registrar and election officer from_the Fifth district of the Third ward, C. Gregg Dercer from the Tenth district of the Seventh ward, rickson as assistant registrar and election offiHugh McDonough as assistant registrar and election officer from the Third district of the Tenth ward and Miles Jennings as assistant registrar and election officer from the Eleventh district of the Tenth ward. Fourth. That the said Department of Elections of the city of Wilmington was thereupon through its chairman as aforesaid, at a regular notified by the City Executive Committee meeting of said Department of Elections held on the twenty-second day of June, A. D. nineteen hundred and fourteen, that the said appointments were illegal and it was requested by your petitioner as chairman of the City Executive Committee of the Democratic party to correct and change the same in conformity with the law, yet the said Department of Elections for the city of Wilmington, fraudulently and illegally neglected and refused so to do, and still continues so to do, to the irreparable injury of the Democratic party in the districts aforesaid. Fifth. That the appointment of the said named men in manner and form as aforesaid, is contrary to the laws of the state of Delaware providing for the appointment of registrars, assistant registrars and election officers by the said Department of Elections for the city of Wilmington, in that, it is in violation of paragraph 4, of section 3, of chapter 40 of vol. 21 of the Laws of Delaware. * * the said action of the said Department of ElecSixth. Your petitioner therefore alleges that tions for the city of Wilmington, is unauthorized, unwarranted and illegal and is a fraudulent and willful evasion of the statute above cited and in such case made and provided. Seventh. That the following is a list of the duly and properly qualified persons named in the list submitted to the Department of Elections for the city of Wilmington by the City Executive Committee of the Democratic party for the respective districts from which the said *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes appointments were made illegally by the said Department of Elections. [Then followed the list, containing six names for each district in question.] The eighth paragraph averred injury, etc., and concluded with a prayer for relief, the substance of which has already been stated. The statute relied upon by both parties is section 3, paragraph IV, chapter 40, volume 21, Laws of Delaware 141, which reads: "They shall in the month of June, in each year in which a general election is held, appoint for each election district in the city of Wilmington three capable persons, who shall be voters and residents in the election district, for which they shall be appointed, who shall be the registration officers of the election district for which they are appointed; one of whom shall be designated as 'Registrar,' and the other two 'As sistant Registrars,' and not more than two of them shall be of the same political faith; provided, that the total number of registration officers in each representative district, shall be divided as equally as possible between the two leading political parties, as the same shall be determined upon by the Department of Elections at the time of making the appointments. And further, for each appointment accredited to any political party under this section the city executive committee of such political party shall furnish the Department of Elections on or before the first day of June of the year in which said appointment is to be made, a list of three names of properly qualified persons, from which list the Department of Elections shall make its appointments." Counsel for the respondents moved to discharge the rule and dismiss the petition for the following reasons: 1. That the said petition does not show upon its face a clear right to the relief demanded. 2. That the allegation of facts made in said petition are argumentative, uncertain, not specific, not positive and are insufficient." 3. That it appears in and by said petition that there is no duty imposed upon said respondents to perform the act complained of. fect to admit the allegations in the petition well averred. We are constrained under the facts disclosed by the petition and affidavits to deny the motion. the judgment of the court that the alternaUpon application being made therefor, it is tive writ should issue, returnable to this special session of the court, on the 15th day of the present month, at 11 o'clock a. m., to which time the court will be adjourned. (July 15, 1914.) The court having reconvened, the alternative writ was returned, showing service. Counsel for the respondents moved to quash the writ, assigning several reasons therefor, but relied upon the third and fourth reasons assigned for the dismissal of the petition, and upon the same authorities. BOYCE, J. [2] Under our practice in mandamus, the alternative writ takes the place of the declaration, and is the first pleading. The facts therein well pleaded are, by this motion, admitted; and the question now is, in the absence of the return, whether enough is shown to entitle the relator to the peremptory writ. [3] The writ prima facie shows that the list filed is in conformity with the requirements of the statute; that the persons named in the list have the proper qualifications for registration officers in the city of Wilmington, and that the appointments for the districts in question have not been made as required by the act of assembly. Unless these allegations are properly denied by the respondents, the peremptory writ prayed for must issue. The motion to quash the alter 4. That it does not appear from the said peti-native writ is denied. The respondents theretion that the said respondents have failed to per- upon filed their return to the alternative form any ministerial duty imposed upon them by law. The main contention, on the motion, was that the qualification of the persons named in the list were matters to be judicially determined by the Department of Elections at the time of making the appointments of the registration officers, and that the discretion to be exercised by the department cannot be reviewed by mandamus. writ. Counsel for the relator moved to quash the return which was resisted by counsel for the respondents. The further facts and contentions appear in the opinion of the court. BOYCE, J. (delivering the opinion of the court). This is a motion to quash the return for insufficiency, uncertainty, argumentativeness and as being contrary to law. The authorities relied upon are Houston v. Levy Court, 5 Har. 108; Taylor et al. v. This motion is resisted for three reasons: Kolb, 100 Ala. 603, 13 South. 779; and Com. First, that the answer conclusively shows that v. Perkins, 7 Pa. 42. For the relator it was the Department of Elections in the appointurged that the qualifications of the persons ment of said registration and election offinamed in the list were sufficiently averred cers acted within its discretion and in acin the petition, supported by the accompany-cordance with the law; second, that in the ing affidavits; that for the purpose of the motion the allegations contained in the petition are to be taken as true; and that the department having failed to make the appointments as required by the statute, compliance therewith may be enforced by man-ments of said registration and election offidamus. BOYCE, J. [1] The motion to discharge the rule and dismiss the petition has the ef manner of making the appointments the provisions of the statute are merely directory and not mandatory; and third, that if the court should hold, that the provisions of statute in regard to the manner of the appoint cers is mandatory then said provision of law is unconstitutional. The contention made by the respondents on the first proposition is the same as was |