Vt.) STATE v. AVERILL State, 121 Ga. 331, 48 S. E. 273; 467 Gibson v. |ed and put on trial for that offense, it may convict him of manslaughter, if in its opinion the evidence is sufficient to prove that offense. Manslaughter, like murder, is a felony in this state. It is not defined by statute nor are voluntary and involuntary manslaughter thus recognized as distinct crimes. The Legislature specifies manslaughter, but leaves the definition or description of that offense to the common law, by which, as before noticed, it may be either voluntary or involuntary, according to the circumstances under which the unlawful act causing death was done. We think it clear that the sections of the statute prescribing the form of the indictment for murder and manslaughter, and of the verdict which may be rendered where the accused has been arraigned and put on trial for murder, are not in restriction of the common law in this respect, and that the crime of manslaughter named in these sections includes, as at common law, both species, volsince the respondent's evidence tended to untary and involuntary. show that the death of the deceased was caused by the unlawful act of the respondent, not accompanied with any intention to take life, it was the duty of the court to give instructions to the jury to meet that view of the case, and a failure so to do would have been prejudicial error. This was expressly held in Bush v. Commonwealth, 78 Ky. 268, and in Spriggs v. Commonwealth, 113 Ky. 724, 68 S. W. 1087. In this state by statute (P. S. 5693) murder is defined and divided into first and second degrees. By section 2268: "In an indictment for murder or manslaughter the manner in which or the means by which the death of deceased was caused need not be set forth, but it shall be sufficient in an indictment for murder to charge that the respondent did feloniously, willfully, and of his malice aforethought kill and murder the deceased, and in an indictment for manslaughter to charge that the respondent did feloniously kill and slay the deceased." The first count of the indictment charges that the respondent "with force and arms, feloniously, willfully, deliberately, with premeditation, and of her own malice aforethought, did kill and murder" the deceased, setting forth neither the manner nor the means. This count is in the same form as the indictment challenged by demurrer in State v. Noakes, 70 Vt. 247, 40 Atl. 249. In that case it was urged that the above provisions of the statute prescribing the form of the indictment were in violation of the Declaration of Rights, which declares that in all prosecutions for criminal offenses a person has a right to demand the cause and nature of his accusation. It was held that a person charged with murder in the manner prescribed by this statute is fully It follows that surprised by the court's giving any charge upon involuntary manslaughter, and she did not have an opportunity to meet that charge. But this petition is without merit. The respondent was bound to know that it was the duty of the court to charge upon every branch of the case within the indictment and supported by evidence. As held upon the exceptions, this included the involuntary branch of manslaughter. In these circumstances, the submission of the case to the jury in a manner to include that offense affords no ground for surprise, and, if she was surprised thereby, it was due to her own fault, and not to any act of the prosecution or of the court. Moreover, since this view of the case rested largely if not wholly upon testimony given by the respondent herself in direct examination, there does not seem to be much force in her position that she did not have an opportunity to meet it. informed of the cause and nature of the accusation against him; and that there is nothing in the Constitution which precludes the [9] The petition, for a new trial is based Legislature from dispensing with the neces-upon the ground that the respondent was sity of stating the means, manner, and circumstances of the killing, in an indictment for homicide. If an indictment so drawn sufficiently informs the accused of the cause and nature of the accusation against him for murder, it must follow that it sufficiently informs him of the cause and nature of any offense included within that of murder, for the greater contains the less. Under an English statute (24 and 25 Vict. c. 100, s. 6), like section 2268 of the Public Statutes, quoted above, it has been held that in an indictment for manslaughter it is not necessary to go into detail as to the duty by neglect whereof the death was caused, yet, if it is set out, it must be so set out as to show a legal duty. Queen v. Clerk of Assize of Oxford Circuit (1897) 1 Q. B. 370; 8 Ency. Laws of Eng. 567. By P. S. 2337, "under an indictment for murder the respondent may be convicted of murder in the first degree, murder in the second degree, or of manslaughter, as the case may be upon the proofs." And in section 5697 the statute is specific that, if in the opinion of the jury the evidence is not sufficient to convict of murder a person arraign Judgment that there was no error in the proceedings of the county court, and that the respondent take nothing by her exceptions. Petition for a new trial dismissed, with costs. (9 Del. Ch. 446) In re TOMLINSON. (Orphans' Court of Delaware. Kent. Sept. 19, 1911.) 1. DOWER (§ 83*)-ASSIGNING DOWER-DEBTS OF DECEASED HUSBAND. A debt incurred by a man prior to his marriage and paid during his lifetime cannot be considered in assigning dower to his widow, and her rights cannot be diminished thereby. [Ed. Note. For other cases, see Dower, Cent. Dig. §§ 322-328; Dec. Dig. § 83.*] 2. DOWER (§ 27*)-ASSIGNING DOWER-DEBTS OF DECEASED HUSBAND. A vendor of an undivided interest in land to his cotenant may not, as against the dower right of the widow of the cotenant, enforce a lien for the unpaid price. [Ed. Note.-For other cases, see Dower, Dec. Dig. 27.*] 3. DOWER (§ 83*)-ASSIGNING DOWER-DEBTS OF DECEASED HUSBAND. A purchaser at an execution sale is a lienor of the debtor, within the rule that in assigning dower the widow is entitled to have considered the enhanced value of the land arising from the increased prosperity of the country and the improvements in the neighborhood; but the assignment must be made according to the condition of the land at the time of the sale, independent of the improvements erected thereon at the expense of the purchaser subsequent to his purchase. [Ed. Note. For other cases, see Dower, Dec. Dig. § 83.*] vided interest by deed dated January 25, 1859, William B. Tomlinson conveyed to Daniel R. Tomlinson, they being then ten ants in common thereof. It was claimed that when the property was sold by the sheriff in 1863 on a judgment of Cook, which was the third lien, the proceeds of sale were not sufficient to pay the judgment given for the purchase money by about $400, and that this should be considered in assigning dower, William B. Tomlinson claiming a vendor's lien to that amount. swer it was further alleged that in 1863 the value of the farm did not exceed $3,210, the price at which it was then sold; that since then the farm had been improved; and that certain new buildings had been erected thereon since, by the present owner, against whom the dower is sought. The petition and answer were set down for hearing before Chancellor CURTIS and Judge BOYCE in the Orphans' Court on September 19, 1911, and the testimony of witnesses heard. James M. Satterfield and Caleb S. Layton, for petitioner. James H. Hughes, for defendant. CURTIS, Ch. (delivering the opinion of the court). After having heard the testiPetition of Ellen B. Tomlinson for as- mony of witnesses on the allegations of the signment of dower. Granted. By her petition, Ellen B. Tomlinson, widow of Daniel R. Tomlinson, deceased, alleged that her husband, after marriage, became seised of a farm in Milford Hundred, containing about 1662 acres, and that on August 29, 1863, the farm was sold by the sheriff on a writ of venditioni exponas issued on a judgment in favor of James Cook, for the use of Joseph Hill, against her husband, Daniel R. Tomlinson. The judgment was for a debt of the husband, contracted after the marriage. On March 11, 1911, the husband of the petitioner died and the land having become the property of William B. Tomlinson, an assignment of dower by metes and bounds was asked for. By the answer of William B. Tomlinson, the marriage of the petitioner to Daniel R. Tomlinson was denied, but at the hearing it was shown that they were married in 1855. It appeared further, that before the marriage Daniel R. Tomlinson gave to Stephen C. Boone a bond, dated May 1, 1853, for $279.34, on which judgment was entered after the marriage at the October term, 1856. The next lien on the land was a judgment against Daniel R. Tomlinson for $2,500, entered on January 27, 1859, on a bond given by Daniel R. Tomlinson to William B. Tomlinson, dated January 25, 1859. This latter bond was alleged to have been given to secure payment of the price of an undivided one-half interest in the farm, which uni petition and answer, the court find that the petitioner, Ellen B. Tomlinson and Daniel R. Tomlinson were married in 1855, and that Daniel R. Tomlinson died on March 11, 1911, 48 years after the sale of the farm by the sheriff. The questions raised were three: (1) Whether in assigning dower by metes and bounds the freeholders should consider the debt due from Daniel R. Tomlinson to Boone, represented by the bond for $279.34, dated prior to the marriage. (2) Whether they should consider the claim of William B. Tomlinson to a vendor's lien for the unpaid part of the price of an undivided interest in the farm purchased by him from Daniel R. Tomlinson subsequent to the marriage. (3) What improvements had been added to the farm since the sheriff's sale and in the lifetime of Daniel R. Tomlinson. [1] 1. Inasmuch as the bond of Boone was paid in the lifetime of Daniel R. Tomlinson, and therefore was not a debt due from him at the time of his death, it is not to be considered in assigning dower, and the widow's right of dower is not to be diminished thereby, or to the extent thereof. Griffin v. Reece, 1 Har. 508. [2] 2. William B. Tomlinson is not entitled to enforce as against the widow's right of dower a claim for a vendor's lien to the extent of the unpaid portion of the undivided interest in the farm bought by him from Daniel R. Tomlinson. vendor to enforce a lien The right of a for the unpaid Del.) ODESSA LOAN ASS'N v. DYER purchase money has not been established [ in Delaware, but whenever the question has arisen the tendency of the courts here have been against it. Budd et al. v. Busti et al., 1 Har. 69; Cannon v. Hudson, 6 Houst. 21; Godwin v. Collins, 3 Del. Ch. 189; Rice v. Rice (C. C.) 36 Fed. 860. [3] 3. In this state the respective rights of the widow of the alienee of the husband, respecting the improvements on the land by the former after alienation and during the life of the husband, are settled by decisions. The purchaser of land of the husband, sold during marriage by the sheriff on an execution against the husband, is regarded as an alienee of the husband. Green v. Tennant, 2 Har. 336, 339. In assigning and estimating dower, the widow is entitled to have considered the enhanced value of the land arising from the increased prosperity of the country and the improvements in the neighborhood. Green v. Tennant, supra. But the assignment should be made according to the condition of the land at the time of the sale, independent of the improvements erected or produced thereon at the cost and expense of the purchaser subsequent to the purchase. Green v. Tennant Rawlins v. Buttel, 1 Houst. 224. By the By the proofs the character of the buildings and improvements so erected by the purchaser were shown, and the order for the assignment will contain a statement thereof, as well as instructions in accordance with the conclusion of the court. The following order was made: supra; And now, to wit, this 19th day of September, A. D. 1911, the foregoing petition of Ellen B. Tomlinson, widow of Daniel R. Tomlinson, deceased, for assignment of dower in the lands and tenements whereof the said Daniel R. Tomlinson was seised in his lifetime, and the answer of William B. Tomlinson, the defendant and present owner of said lands and tenements, having come on to be heard by the judges of the said Orphans' Court, and the oral testimony of witnesses produced by the parties in said cause having been duly considered by the court; And it appearing to the court that the petitioner, Ellen B. Tomlinson, and the said Daniel R. Tomlinson were duly married in the year 1855; that the said Daniel R. Tomlinson in his lifetime, during said marriage, was seised in his demesne as of fee of and in a tract of land in said petition mentioned, except the said tract of 7 acres and 90 perches situated on the north side of the public road in said answer mentioned; that since the alienation of said tract of land by the sale thereof by the sheriff on the 29th day of August, A. D. 1863, certain improvements have been erected thereon, namely, the dwelling house, barn and wagon shed, corn crib, chicken house and cow house: 469 It is, therefore, ordered, adjudged and decreed by the court that a commission shall issue directed to Robert H. Lewis, Gilder D. Jackson, John W. Caulk, William G. Postles and William Denney, five judicious and substantial freeholders of Kent county, directing them to assign dower to the said Ellen B. Tomlinson, widow of the said Daniel R. Tomlinson, out of the said premises in said petition mentioned, excepting as aforesaid, according to the condition thereof at the time of the sale thereof on the said 29th day of August, A. D. 1863, and according to the present value thereof, and that in determining the present value thereof the said freeholders shall not consider the said improvements erected on said lands and premises since the said sale, namely, the said dwelling house, barn and wagon shed, corn crib, chicken house and cow house; And further, that they make return of their proceedings to this court at Dover, at the adjourned term thereof, to be held on the 7th day of October, A. D. 1911. (2 Boyce, 457) ODESSA LOAN ASS'N v. DYER. (Superior Court of Delaware. New Castle. Sept. 27, 1911.) 1. COURTS (§ 24*)-JURISDICTION OF SUBJECTMATTER-ASSENT OF PARTIES. Jurisdiction over the subject-matter, cannot be conferred by assent of the parties, but must be given by law. [Ed. Note. For other cases, see Courts, Cent. Dig. §§ 76-78; Dec. Dig. § 24.*] 2. COURTS (§ 25*)-JURISDICTION-JURISDICTION OF PERSON. The jurisdiction of a court over the person or property of a party is acquired by process served in the statutory manner, and the legality of the service is dependent on the statute, and not on any agreement by the parties. Dig. §§ 79, 80; Dec. Dig. § 25.*] 3. APPEARANCE (§ 24*) — WAIVER OF OBJEC- The constitutional guaranty that no valid proceeding can be had against one until he has been notified thereof by proper service of prountarily waive it by voluntary appearance and cess is for his protection, and a party may volsubmission to the court's jurisdiction; but where he appears, not voluntarily, but in response to service of process, the service must be legal to make the proceeding legal. [Ed. Note.-For other cases, see Appearance, Cent. Dig. §§ 118-143; Dec. Dig. § 24.*] 4. PROCESS (§ 58*)-SERVICE-STATUTES. The statute defining legal service of process, by prescribing with particularity the methods by which service may be made, does not authorize service on or acceptance of service by the attorney of a defendant, for such service is on an agent, and is good only when made so by statute. [Ed. Note.-For other cases, see Process, Dec. Dig. § 58.*1 Action by the Odessa Loan Association against William E. Dyer, administrator of Rebecca V. Dyer, deceased. On rule to show *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes cause why a judgment and the execution | holds that there was no legal service in issued thereon should not be vacated. Rule this case and that the judgment entered made absolute. thereon and the execution issued thereunder Argued before CONRAD and WOOLLEY, should be vacated. JJ. T. Bayard Heisel, for petitioner. George L. Townsend, Jr., for respondent. WOOLLEY, J. (delivering the opinion of the court). It appears, from the petition filed in support of the rule, that the aboveentitled cause was docketed in this court at its May term, 1907; that no service of process was made or attempted to be made upon the defendant, except in the manner shown by the return indorsed thereon, as follows: "Service accepted. [Signature of Attorney], Attorney for William E. Dyer, May 18, 1907;" that judgment was moved for and entered for want of an affidavit of defense and execution on the judgment thereafter issued. [1-3] The jurisdiction of a court over the subject-matter of a suit is given it by law and is never conferred by the assent of parties. Likewise the jurisdiction of a court over the person or property of a party is acquired by process, served in a manner prescribed by the law and not in a manner agreed upon by the parties, however satisfactory that manner may be to one or to both of them. No valid proceeding can be had against a person until he shall have been notified of such proceeding by proper service of process. This is a right secured to all by the constitutions of the United States Rule absolute. KNOWLES v. MASSEY. 1. TRIAL (§ 194*)-INSTRUCTIONS-WEIGHT OF [Ed. Note. For other cases, see Trial, Cent. In assumpsit, it is incumbent on plaintiff that there was a contract, express or implied in to show by a preponderance of the evidence law, between plaintiff and defendant. [Ed. Note.-For other cases, see Contracts, Cent. Dig. § 133; Dec. Dig. § 28.*] 3. CONTRACTS (§ 187*) - SERVICES FOR THIRD PERSON. Where plaintiff, a physician, rendered servagreement with defendant to pay therefor and ices in curing certain others under a verbal on defendant's credit, defendant was liable to pay for the services, notwithstanding a subsequent promise by any other person to pay therefor. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 798-807; Dec. Dig. § 187:*] 4. EVIDENCE (§ 588*)—CONFLICT-WEIGHT OF EVIDENCE. Where the evidence is conflicting, it is the jury's duty to reconcile it, if possible; otherwise, to determine which of the witnesses is entitled to the greater credit, and, having determined that, to reject the testimony of any witness believed to be untrue. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 2437; Dec. Dig. § 588.*] and of the state of Delaware. Being provi- Action by Jacob C. Knowles against Edwin T. Massey for professional services and medicine administered to certain persons at defendant's special instance and request and on his promise to pay therefor. Verdict for plaintiff. Argued before SPRUANCE and BOYCE, JJ. Gentle Service upon or service accepted by the BOYCE, J. (charging the jury). attorney of a defendant in an action, is serv-men of the jury: This is an action of asice upon an agent and is good only when sumpsit, brought by Jacob C. Knowles, the made so by statute. As there is no statute plaintiff, against Edwin Massey, the defendmaking legal the acceptance of service by ant. an attorney for a defendant, such a service does not constitute legal service, notwithstanding its effect may be to bind the attorney, morally or professionally, to cure the defect by appearance. The court therefore The plaintiff has declared on a special agreement alleged to have been made with the defendant. The declaration contains a special count with the common counts added. The special count charges in substance that the defendant was prior to the bringing of this action indebted to the plaintiff in a special sum of money for professional services before that time done and performed as a physician and apothecary for the defendant, at his special instance and request, in and about the healing and curing of William Massey, George Massey and Ola Massey of diseases and maladies under which they had before then labored and languished, and for medicines provided and administered to them, and that being so indebted the defendant promised the plaintiff to pay him the said sum of money. It is further averred that the defendant undertook and promised to pay the plaintiff so much money as he reasonably deserved to have of the defendant for said services. To entitle the plaintiff to recover on said special count he must prove the defendant's promise as charged in said special count by a preponderance of the evidence. The plaintiff has filed a bill of particulars and his claim is for 31 visits to George, Ola and William Massey while stricken with smallpox from November 16, 1903, to December 21, 1903, at $10 a visit, and for medicine, aggregating the sum of $312. It is conceded that there has been paid on account of said bill the sum of $51.50. The balance claimed to be due is the sum of $260.50, with interest from September 17, 1904, said to amount to $53.27; the whole amount now claimed aggregating the sum of $313.77. We have a statute in this state which provides, among other things, that a book of original entries regularly and fairly kept, shall, together with the oath or affirmation of the plaintiff, be admitted to charge the defendant for sums therein contained. [1] The plaintiff's book of original entries in this case has been admitted in evidence, and you will have it when you go to your room for deliberation upon this case. It is not competent for us to charge you upon the weight or the value which you should give to the book account, but you are to consider it in connection with all the other evidence in the case and give it such weight as you consider it entitled to. The defendant denies that he made the agreement with the plaintiff as set forth in said special count, but admits that he did on behalf of his father, with the knowledge of the plaintiff that he was acting for his father, engage the plaintiff to attend his brother George who was at the time sick of smallpox, and he also admits that he did for himself agree with the plaintiff to pay him for two visits to his brother George at $10 a visit and he insists that he did pay the plaintiff for said two visits the sum of $20, which he claims he had obtained from his father for that purpose. 471 [2] In order to support this action of assumpsit, it is incumbent on the plaintiff to show from a preponderance of the evidence that there was a contract, express or implied in law between him and the defendant. If you find that the plaintiff rendered professional services to George, Ola and William Massey, brothers and sister of the defendant, as claimed by the plaintiff, the law will not imply from that alone, a promise on the part of the defendant to pay for such services. It is not denied that the plaintiff made the visits and furnished the medicines as shown by his bill of particulars. The question of the defendant's liability turns upon the character of the agreement which he made with the plaintiff at the time the latter was engaged to visit the place where the said Massey children were located. Did the defendant for himself promise to pay the plaintiff $10 a visit as is claimed by the plaintiff? Or did the defendant engage the plaintiff on behalf of his father with the knowledge of the plaintiff that he was acting for his father, limiting his personal liability to the payment for two visits or the sum of $20, as is claimed by the defendant? [3] If you find from the evidence that the plaintiff rendered the alleged services under a verbal agreement with the defendant and on the credit of the defendant, as alleged by the plaintiff, the defendant would be liable to the plaintiff to pay for such services, and any subsequent promise of Sheppard Massey or any other person to pay the plaintiff for such services would not alone be sufficient to affect the right of the plaintiff to proceed against the defendant upon such special promise. If the defendant did not enter into the special agreement with the plaintiff as alleged by the plaintiff, then the plaintiff To deterwould not be entitled to recover. mine the liability of the defendant in this action, you must look to the evidence produced before you as to the nature, character and extent of the agreement made between the plaintiff and the defendant. [4] This evidence is conflicting; you must reconcile it if you can; if you cannot, considering all the evidence produced before you, you are to determine which of the witnesses you think entitled to the greater credit, and having determined as to that, you may reject the testimony of any witness which you believe to be untrue, and accept that which you believe to be true, and upon that basis you are to determine as to the weight and preponderance of the evidence. You are to decide for the plaintiff or the defendant in this case according as you find the weight or preponderance of the evidence for the one or the other. Verdict for plaintiff for $250. |