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be stopped in case it was a child, he cannot, James M. Barnes. On motion by plaintiff to as a matter of law, be held to have exercised amend replications by withdrawing the replireasonable care, where, when he did discover it was a young child, it was too late to prevent cations to defendant's fourth plea, so that he running the infant down.

may decline to reply to the said fourth plea [Ed._Note.-For other cases, see Railroads, until the same shall have been drawn out. Cent. Dig. $8 1365–1381; Dec. Dig. § 400.*] Application refused. Appeal from Supreme Court.

Argued before PENNEWILL, C. J., and Action by Antonio Minichino, by his next CONRAD, J. friend, against the Public Service Railway

Robert H. Richards and Aaron Finger, Company. A judgment for plaintiff being af- both of Wilmington, for plaintiff. Saulsfirmed by the Supreme Court, defendant ap-bury, Morris & Rodney, of Wilmington, for peals. Affirmed.

defendant. The opinion in the Supreme Court was as follows:

PENNEWILL, C. J. (delivering the opinion This is an action for personal injuries. The of the court). In the above case the plaintiff plaintiff, a boy 312 years of age at the time of the accident, while sitting upon the ties just asks leave to amend his replications by withoutside the north rail of the east-bound track drawing the replications to defendant's fourth of the defendant's railway between Jersey City plea, so that he may decline to reply to the and Newark, was struck by the running board said plea until the same shall have been

an , and the judgment entered thereon is now be drawn out. fore us for review.

The court are of the opinion that the moThe only matter argued by counsel for the tion must be refused for the reason that by plaintiff in error is the refusal of the trial court to direct a verdict in favor of the defend- failing to require the defendant to draw out ant. It is contended that this course should said plea when he had the opportunity and have been pursued for the reason that the tes before filing his replications, the plaintiff timony disclosed no negligence on the part of waived his right in that regard. We are not the defendant's employés who were operating the car. The testimony shows that the motor- unmindful of the fact that the constitutional man saw the boy in plenty of time to stop his and statutory provisions respecting the car before it reached the place where the boy amendment of pleadings are very broad, but, was sitting, but thought that what he observed was a dirty piece of paper, and so gave the as was said by the court in Wright v. Wilmatter no thought until he was within a few mington City Ry. Co., 2 Marvel, 141, 42 Atl. feet of the plaintiff, when the latter raised up. 440, “there are limitations, and they have The motorman thereupon applied the emergen- been recognized through our reports.” cy brake, but too late to avoid the accident. We do not think that it can be said, as a mat

One of those limitations, distinctly recogter of law, that the motorman was not negli- nized in the case referred to, is, that if a pargent. It was a question for the jury to say 'ty has the right to require the defendant to whether, having observed this object on the track, he exercised reasonable care in running draw out his plea, or draw it out more fully it down without first ascertaining whether it and formally, and does not exercise such was what it appeared to be, or whether it was, right but elects to plead, he waives the right as it turned out to be, a human being. The judgment under review will be affirmed and cannot successfully insist upon it after Lefferts S. Hoffman, of Newark, for appel

pleading

In the case above mentioned release was lant. Beecher & Bedford, of Newark, for re

pleaded, which upon motion of the plaintiff spondent.

was drawn out but not fully and sufficiently PER CURIAM. The judgment is affirmed, to enable the plaintiff to intelligently plead

thereto. for the reasons stated in the memorandum of

The plaintiff, notwithstanding, the the Supreme Court.

insufficiency, filed a general replication thereby taking issue upon the plea. At the trial

and “after the plaintiff had rested under the (5 Boyce, 209)

pleading and the defendant had put in eviSTECKEL V. BARNES.

dence upon the point," the defendant asked (Superior Court of Delaware. New Castle.

leave to amend his replication. It was held Oct. 12, 1914.)

"too late on the part of the plaintiff to ask

leave to amend." PLEADING (S$ 339, 409*)—DEFECTS—WAIVER BY PLEADING TO DEFECTIVE PLEA.

It is true that the application in the presThe right to require the defendant to draw ent case comes before the trial, but we think out his plea is waived by filing a replication it nevertheless falls within the reasoning and to the plea, and while the court has power to decision of the case to which we have referpermit the replication to be withdrawn in order that plaintiff may decline to reply to the plea, red. In that case the court said: it will not do so, in the absence of peculiar and “When you demanded that the plea of release exceptional facts.

should be drawn out fully and formally, you [Ed. Note.--For other cases, see Pleading, had a right to stand upon it, and if he did not Cent. Dig: $8 1033-1045, 1375–1383, 1386; Dec. so draw it out, you were not bound to plead. , Dig. SS 339, 409.*]

Upon application to this court we could have Action by assumpsit (No. 100, January of the law, in order that you might intelligently

compelled him to draw it out within the terms term, 1914) by Frank E. Steckel against 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 receivHou 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 We are aware of the decision given in the making the application for continuance, and case of Kirwan Mfg. Co. v. Truxton, 2 Penne- had had no opportunity to avail themselves of will, 48, 44 Atl. 427, but that was an excep- any defense, if any, growing out of that fact; tional case, and the court expressly stated and the court announced that they ought to

that to that it was not to be considered as an au- take such advantage of it as they were entitled thority except in a like case under like cir- to. The court therefore continued the case to cumstances.

the April term, to be pleaded to issue and ready Inasmuch as the court in that case went for trial at said term under a peremptory

rule. further perhaps than this court had ever gone "There may be cases in which the court would before in allowing amendments, it may be not exercise its discretion to the extent of grantwell to refer to it more fully in order to show ing such leave as we grant in this case, to that it cannot be regarded as an authority withdraw a plea in bar and to file a plea in

abatement. This decision applies to the parin support of the present application.

ticular circumstances and claims of this case The case had been continued at the preced- and this application." ing term with general leave to amend. At

Judge Spruance in delivering the opinion that time certain pleas in bar had been filed, of the court concluded by saying: but since the continuance the defendant had

"Counsel for the defendant have examined filed three additional pleas, two of which into the question then raised, and have come were pleas in abatement, and one a plea in to the conclusion that that fact (insolvency of bar. Counsel for. defendant asked leave to the plaintiff) cannot properly be brought before withdraw his pleas in bar, leaving the pleas the court except upon a plea of abatement, and

to refuse this application would be wholly inin abatement which had been filed since the consistent with the ruling of the court preceding term; also to amend the third ad- at the last term." ditional plea so as to make it a plea in abate

It clearly appears, therefore, that the court ment.

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 “In concurring with Judge Spruance in this case. decision, I simply want to add that this matter of allowing a party to withdraw his plead

The court have the power in the present ings, or any portion of them, or to amend the case, as the court had in the Kirwan Case, pleadings, or any portion of them, is in the dis- to allow the amendments asked for, but we cretion of the court. I do not consider that an application of this kind, which is to intro- think such power should not be exercised duce a plea in abatement after a plea in bar when the case is at issue and the defendant has been filed, would be granted by the court has had the opportunity to obtain the leave in every case; but where our discretion is now desired, and waived such right by pleadappealed to, in a case having peculiar circunstances 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)

persons submitted by the chairman of the two BRADFIELD V. STATE,

leading political parties, is a reasonable require

ment for the promotion of fair elections, and (Superior Court of Delaware. New Castle. does not violate Const. art. 14, which, after preOct. 6, 1914.)

scribing the oath for public officers, provides CRIMINAL LAW ($ 1013*)-APPEAL-CERTIORA- that no other oath, declaration, or test shall be RI-ELECTION OF REMEDIES.

required for any office of public trust. Where a defendant, after conviction in the: [Ed. Note.-For other cases, see Elections, municipal court, sued out a certiorari, and at Cent. Dig. 88 95, 96; Dec. Dig. $ 95.*] the same time took an appeal to the Court of 5. ELECTIONS ($ 101*)-OFFICERS-LISTS SUBGeneral Sessions, and thereafter elected to

MITTED BY PARTY CHAIRMAN. stand on his appeal, the certiorari proceedings Under Act May 20, 1898, § 3, par. 4, rewill be discontinued.

quiring the department of elections to appoint [Ed. Note. For other cases, see Criminal the registrars of election from lists submitted Law, Cent. Dig. $ 2570; Dec. Dig. § 1013.*] by the party chairman, containing the names of William M. Bradfield was convicted in the district, the list is in effect a distinct list for

at least six qualified persons in each election municipal court of the city of Wilmington each district, and a fatal defect therein with of a crime, and he petitioned for certiorari respect to one or more districts does not vitiate (No. 31, September term, 1914), and also took the remainder of the list. an appeal to the Court of General Sessions Cent. Dig. S 99; Dec. Dig. § 101.*]

[Ed. Note.-For_other cases, see Elections, (No. 120, September term, 1914). Certiorari discontinued.

6. MANDAMUS ($ 74*)— SUBJECTS OF RELIET

ADMINISTRATIVE DECISIONS. Argued before PENNEWILL, C. J., and

The determination by the department of RICE, J.

elections whether the persons named on the list,

submitted by the chairmen of the political parJosiah O. Wolcott, Atty. Gen., for the ties as required by Act May 20, 1898, § 3, par. State. Howell S. England, of Wilmington, 4, possess the qualifications of registrars of elecfor defendant.

tion is administrative, and not of such a judicial

character as will prevent a review of that deciPER CURIAM. The plaintiff having elect- sion by mandamus. ed to proceed on his remedy by appeal, his Cent. Dig. 88 150–157; Dec. Dig. $ 74.*]

[Ed. Note.-For other cases, see Mandamus, other remedy by certiorari, pending at the

7. _MANDAMUS (8 160*)-ALTERNATIVE WRITsame time, is discontinued at his own cost. DUPLICITY.

An alternative writ of mandamus, ordering

the department of elections to appoint registrars (5 Boyce, 213)

of election in several different districts from the STATE ex rel. SAULSBURY V. LEWIS et al. list furnished by the chairman of the political (Superior Court of Delaware. New Castle.

party, as required by Act May 20, 1898, § 3, July 11, 1914.)

par. 4, is not duplicitous, since the duties there

in commanded are certain, positive, similar and 1. MANDAMUS ($ 157*)-MOTION TO DISMISS successive. PETITION_EFFECT AS ADMISSION.

[Ed. Note.- For other cases, see Mandamus, A motion to discharge the rule to show Cent. Dig. 88 326-335; Dec. Dig. $ 160.*] cause why a writ of mandamus should issue, and to dismiss the petition, admits those alle | 8. MANDAMUS (8 164*)-RETURN-REQUISITES. gations in the petition which are well averred.

The office of the return to an alternative [Ed. Note.--For other cases, see Mandamus, obedience, and it must deny the allegations of

writ of mandamus is to show a right to refuse Cent. Dig. 88 317–323, 371; Dec. Dig. & 157.*]

the writ or show other facts sufficient to defeat 2. MANDAMUS ($ 162*)—MOTION TO QUASH the claim of the relator. ALTERNATIVE WRIT-EFFECT AS ADMISSION. [Ed. Note.-For other cases, see Mandamus,

In mandamus the alternative writ takes Cent. Dig. $$ 344-360; Dec. Dig. § 164.*] the place of the declaration, and the facts therein well pleaded are admitted by a motion to 9. MANDAMUS (8 162*)-RETURN-QUASHING quash the alternative writ.

PART OF RETURN. (Ed. Note.-For other cases, see Mandamus,

The court may quash part of the return to Cent. Dig. $8 338-340; Dec. Dig. $ 162.*]

an alternative writ of mandamus, and hold part

sufficient. 3. MANDAMUS (8 160*)-ALTERNATIVE WRIT- [Ed. Note.--For other cases, see Mandamus, SUFFICIENCY.

An alternative writ of mandamus to compel Cent. Dig. $$ 338-340; Dec. Dig. & 162.*] the department of elections to appoint regis- 10. MANDAMUS (8 164*)-RETURN REQUItrars from the list furnished by the party chair

SITES. man, as required by Act May 20, 1898 (21 Del.

The return to an alternative writ of mandaLaws, c. 40) § 3, par. 4, which shows that the mus must not be uncertain, argumentative, or list furnished was in conformity with the re

evasive. quirements of the statute, that the persons nam

[Ed. Note. For other cases, see Mandamus, ed therein had the proper qualifications for reg-Cent. Dig. $$ 344-360; Dec. Dig. 164.*] istration officers, and that the appointments for 11. MANDAMUS ($ 164*) RETURN

SUFFIthe district in question were not made as re

CIENCY. quired by that act, entitles the relator to the peremptory writ, unless the allegations are prop-partment of elections to appoint registrars from

In mandamus proceedings, to compel the deerly denied by respondents.

a list filed by a political party, as required by [Ed. Note.-For other cases, see Mandamus, Act May 20, 1898, § 3, par. 4, the averment in Cent. Dig. $$ 326–335; Dec. Dig. & 160.*] the return that certain persons named for ap4. ELECTIONS ($ 95*)-REGISTRARS-QUALIFI- pointment do not reside at the addresses given CATIONS.

in the list, but not averring that they do not The requirement of Act May 20, 1898, $ 3. reside in the district, is not sufficient. par. 4, that the department of elections appoint [Ed. Note.-For other cases, see Mandamus, the registrars of election from lists of eligible' 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

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MAN.

12. ELECTIONS ($ 101*)_OFFICERS--APPOINT- and legal voter; that he is a member of the MENT-LIST SUBMITTED BY PARTY CHAIR- | Democratic party and also is chairman of the

City Executive Committee of the Democratic Under Act May 20, 1898, $ 3, par. 4, requir- party for the city of Wilmington. ing the department of elections to appoint reg- Second. That on the twenty-eighth day of istrars from lists of six qualified persons in each May, A. D. nineteen hundred and fourteen, your election district, to be submitted by the chair- petitioner as chairman of the City Executive man of the political parties, where one or more. Committee of the Democratic' party for the city of the persons named in the list are not qualified of Wilmington, in pursuance of a resolution of to serve as registrars, the list may be disregard- the said Executive Committee of the Democratic ed for that district and persons not named party in the city of Wilmington, filed with_the therein appointed.

Department of Elections for the city of Wil[Ed. Note.-For_other cases, see Elections, mington, a list of three and more names of propCent. Dig. § 99; Dec. Dig. § 101.*]

erly qualified persons from each election dis

trict in the city of Wilmington, from which said Mandamus by the state of Delaware, on

names the Department of Elections for the city relation of James Saulsbury, against Jacob of Wilmington was compelled by law to select Hadley Lewis and others, as members of the Democratic party as registrars, assistant regisDepartment of Election for the City of Wil-trars and election officers for the purpose of mington. Peremptory writ of mandamus is-registering voters and holding the election to mington. Peremptory writ of mandamus is- be held on the third day of November, A. D. sued for part of the relief prayed for, and nineteen hundred and fourteen. denied for part.

Third. That on the sixteenth day of June, A. Argued before BOYCE, CONRAD, and D. nineteen hundred and fourteen, the said De

partment of Elections for the city of WilmingRICE, JJ.

ton as its meeting held, appointed as such reg

istrars, assistant registrars and election officers Robert G. Harman and John W. Brady, the following men whose names did not appear both of Wilmington, for relator. Philip L. upon said list so as aforesaid furnished by the Garrett and Frank L. Speakman, both of said City Executive Committee of the DemoWilmington, for respondents.

cratic party through its chairman as aforesaid.

James L. Taggart as assistant registrar and

election officer from the Sixth district of the On July 8, A. D. 1914, in vacation, the re-trar and election officer from the Third district

Second ward, James J. Riley as assistant regislator filed a petition and accompanying af- of the Third ward, William H. Blake as asfidavits with the prothonotary for New Cas- sistant registrar and election officer from_the tle county, praying that a rule issue out of Fifth district of the Third ward, C. Gregg Derthe Superior Court, in and for said county, cer from the Tenth district of the Seventh ward,

rickson as assistant registrar and election offidirected to and requiring the respondents, Hugh McDonough as assistant registrar and constituting the members of the department of election officer from the Third district of the elections for the city of Wilmington, to show Tenth ward and Miles Jennings as assistant reg

istrar and election officer from the Eleventh discause why a writ of peremptory mandamus trict of the Tenth ward. shall not issue against them, requiring them Fourth. That the said Department of Electo appoint certain registration officers, in the tions of the city of Wilmington was thereupon city of Wilmington, in accordance with the through its chairman as aforesaid, at a regular

notified by the City Executive Committee law. The prothonotary, in pursuance of sec- meeting of said Department of Elections held on tion 3, chapter 775, volume 19, Laws of Dela- the twenty-second day of June, A. D. nineteen ware, Revised Code, p. 697, immediately hundred and fourteen, that the said appointtransmitted the petition with accompanying ments were illegal and it was requested by your affidavits to the Chief Justice of the state, Committee of the Democratic party to correct

petitioner as chairman of the City Executive who, under the authority of said statute, and change the same in conformity with the law, deeming the matters contained therein ought yet the said Department of Elections for the to be heard and determined before the term neglected and refused só to do, and still con

city of Wilmington, fraudulently and illegally of the next regular session of said court, tinues so to do, to the irreparable injury of awarded the rule prayed for, and made it re- the Democratic party in the districts aforeturnable at a special session of said court,

said.

Fifth. That the appointment of the said namto meet at the court house, in Wilmington, ed men in manner and form as aforesaid, is conon the 11th day of July, A. D. 1914, at 11 trary to the laws of the state of Delaware proo'clock a. m., as called by the Chief Justice, viding for the appointment of registrars, asa majority of the members of said court sistant registrars and election officers by the deeming a special session expedient. The Wilmington, in that, it is in violation of para

said Department of Elections for the city of special session of said court having convened, graph 4, of section 3, of chapter 40 of vol. 21 in pursuance of said call, at the said time of the Laws of Delaware. and place, formal application was made by the said action of the said Department of Elec

Sixth. Your petitioner therefore alleges that counsel for the relator to file the said peti- tions for the city of Wilmington, is unauthoriztion and accompanying affidavits, and leave ed, unwarranted and illegal and is a fraudulent was granted.

and willful evasion of the statute above cited The petition, among other things, averred:

and in such case made and provided.

Seventh. That the following is a list of the First. That your said petitioner is a citizen duly and properly qualified persons named in of the city of Wilmington, New Castle county the list submitted to the Department of Elecand state of Delaware; that he was a regis- tions for the city of Wilmington by the City tered voter at the last general election held in Executive Committee of the Democratic party the state of Delaware, and still is, a registered 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 saidfect to admit the allegations in the petition Department of Elections.

well averred. We are constrained under the [Then followed the list, containing six names facts disclosed by the petition and affidavits for each district in question.]

to deny the motion. The eighth paragraph averred injury, etc., and concluded with a prayer for relief, the the judgment of the court that the alterna

Upon application being made therefor, it is substance of which has already been stated. tive writ should issue, returnable to this spe

The statute relied upon by both parties is section 3, paragraph iv, chapter 40, volume cial session of the court, on the 15th day of

the present month, at 11 o'clock a. m., to 21, Laws of Delaware 141, which reads:

which time the court will be adjourned. "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

(July 15, 1914.) three capable persons, who shall be voters and The court having reconvened, the alternaresidents in the election district, for which they tive writ was returned, showing service. shall be appointed, who shall be the registration officers of the election district for which they

Counsel for the respondents moved to are appointed; one of whom shall be desig- quash the writ, assigning several reasons nated as 'Registrar,' and the other two 'As therefor, but relied upon the third and sistant Registrars,' and not more than two of them shall be of the same political faith; pro- fourth reasons assigned for the dismissal of vided, that the total number of registration offi- the petition, and upon the same authorities. cers in each representative district, shall be divided as equally as possible between the two

BOYCE, J. [2] Under our practice in leading political parties, as the same shall be determined upon by the Department of Elections mandamus, the alternative writ takes the at the time of making the appointments. And place of the declaration, and is the first further, for each appointment accredited to any pleading. The facts therein well pleaded are, political party under this section the city executive committee of such political party shall fur- by this motion, admitted; and the question nish the Department of Elections on or before now is, in the absence of the return, wheththe first day of June of the year in which said er enough is shown to entitle the relator appointment is to be made, a list of three names to the peremptory writ. of properly qualified persons, from which list the Department of Elections shall make its ap

[3] The writ prima facie shows that the pointments."

list filed is in conformity with the requireCounsel for the respondents moved to dis-ments of the statute; that the persons named charge the rule and dismiss the petition for in the list have the proper qualifications for the following reasons :

registration officers in the city of Wilming1. That the said petition does not show upon ton, and that the appointments for the disits face a clear right to the relief demanded. tricts in question have not been made as re

2. That the allegation of facts made in said quired by the act of assembly. Unless these petition are argumentative, uncertain, not spe- allegations are properly denied by the recific, not positive and are insufficient.

3. That it appears in and by said petition that spondents, the peremptory writ prayed for there is no duty imposed upon said respondents must issue. The motion to quash the alterto perform the act complained of.

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 writ. law.

Counsel for the relator moved to quash The main contention, on the motion, was the return which was resisted by counsel that the qualification of the persons named for the respondents. The further facts and in the list were matters to be judicially de-contentions appear in the opinion of the termined by the Department of Elections at court. the time of making the appointments of the registration officers, and that the discretion BOYCE, J. (delivering the opinion of the to be exercised by the department cannot court). This is a motion to quash the rebe reviewed by mandamus.

turn for insufficiency, uncertainty, argumenThe authorities relied upon are Houston tativeness and as being contrary to law. 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 affida vits; that for the purpose of the manner of making the appointments the promotion the allegations contained in the peti- visions of the statute are merely directory tion are to be taken as true; and that the and not mandatory; and third, that if the department having failed to make the ap- court should hold, that the provisions of statpointments as required by the statute, com- ute in regard to the manner of the appointpliance therewith may be enforced by man- ments of said registration and election offidamus.

cers is mandatory then said provision of law

is unconstitutional. BOYCE, J. [1] The motion to discharge The contention made by the respondents the rule and dismiss the petition has the ef-l on the first proposition is the same as was

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