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Vt.)

STATE V. AVERILL

467

State, 121 Ga. 331, 48 S. E. 273; Gibson v. ed and put on trial for that offense, it may Somers, 31 Nev. 531, 103 Pac. 1073, 24 L. convict him of manslaughter, if in its opinion R. A. (N. S.) 504, 135 Am. St. Rep. 700. the evidence is sufficient to prove that of

In this state by statute (P. S. 5693) murder fense. Manslaughter, like murder, is a felony is defined and divided into first and second in this state. It is not defined by statute nor degrees. By section 2268: “In an indictment are voluntary and involuntary manslaughter for murder or manslaughter the manner in thus recognized as distinct crimes. The Legwhich or the means by which the death of islature specifies manslaughter, but leaves the deceased was caused need not be set forth, definition or description of that offense to but it shall be sufficient in an indictment for the common law, by which, as before noticed, murder to charge that the respondent did it may be either voluntary or involuntary, feloniously, willfully, and of his malice afore- according to the circumstances under which thought kill and murder the deceased, and the unlawful act causing death was done. We in an indictment for manslaughter to charge think it clear that the sections of the statute that the respondent did feloniously kill and prescribing the form of the indictment for slay the deceased.” The first count of the murder and manslaughter, and of the verdict indictment charges that the respondent “with which may be rendered where the accused force and arms, feloniously, willfully, delib- has been arraigned and put on trial for murerately, with premeditation, and of her own der, are not in restriction of the common malice aforethought, did kill and murder” law in this respect, and that the crime of the deceased, setting forth neither the man- manslaughter named in these sections inner nor the means. This count is in the same cludes, as at common law, both species, volform as the indictment challenged by demur

untary and involuntary. It follows that rer in State v. Noakes, 70 Vt. 247, 40 Atl. since the respondent's evidence tended to 249. In that case it was urged that the show that the death of the deceased was above provisions of the statute prescribing caused by the unlawful act of the respondent, the form of the indictment were in violation of the Declaration of Rights, which declares not accompanied with any intention to take that in all prosecutions for criminal offenses life, it was the duty of the court to give ina person has a right to demand the cause structions ta the jury to meet that view of and nature of his accusation. It was held the case, and a failure so to do would have

This was expressly that a person charged with murder in the been prejudicial error. manner prescribed by this statute is fully held in Bush v. Commonwealth, 78 Ky. 268, informed of the cause and nature of the ac- and in Spriggs v. Commonwealth, 113 Ky. cusation against him; and that there is noth- 724, 68 S. W. 1087. ing 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 cir- surprised by the court's giving any charge cumstances of the killing, in an indictment upon involuntary manslaughter, and she did for homicide. If an indictment so drawn suf- not have an opportunity to meet that charge. ficiently informs the accused of the cause But this petition is without merit. The reand nature of the accusation against him for spondent was bound to know that it was the murder, it must follow that it sufficiently in- duty of the court to charge upon every forms him of the cause and nature of any of- branch of the case within the indictment and fense included within that of murder, for supported by evidence. As held upon the the greater contains the less. Under an Eng- exceptions, this included the involuntary lish statute (24 and 25 Vict. c. 100, s. 6), like branch of manslaughter. In these circumsection 2268 of the Public Statutes, quoted stances, the submission of the case to the above, it has been held that in an indictment jury in a manner to include that offense affor manslaughter it is not necessary to go fords no ground for surprise, and, if she was into detail as to the duty by neglect whereof surprised thereby, it was due to her own the death was caused, yet, if it is set out, it fault, and not to any act of the prosecution must be so set out as to show a legal duty. or of the court. Moreover, since this view of Queen v. Clerk of Assize of Oxford Circuit the case rested largely if not wholly upon (1897) 1 Q. B. 370; 8 Ency. Laws of Eng. testimony given by the respondent herself in 567. By P. S. 2337, "under an indictment for direct examination, there does not seem to murder the respondent may be convicted of be much force in her position that she did murder in the first degree, murder in the not have an opportunity to meet it. second degree, or of manslaughter, as the Judgment that there was no error in the case may be upon the proofs." And in sec- proceedings of the county court, and that tion 5697 the statute is specific that, if in the the respondent take nothing by her excepopinion of the jury the evidence is not suf- tions. Petition for a new trial dismissed, ficient to convict of murder a person arraign- with costs.

(9 Del. Ch. 446)

vided interest by deed dated January 23, In re TOMLINSON.

1859, William B. Tomlinson conveyed to (Orphans' Court of Delaware. Kent. Sept. 19, Daniel R. Tomlinson, they being then ten1911.)

ants in common thereof. It was claimed 1. DOWER (8 83*)-ASSIGNING DOWER-DEBTS that when the property was sold by the OF DECEASED HUSBAND.

sheriff in 1863 on a judgment of Cook, which A debt incurred by a man prior to his mar- was the third lien, the proceeds of sale were riage and paid during his lifetime cannot be not sufficient to pay the judgment given considered in assigning dower to his widow, and for the purchase money by about $100, and her rights cannot be diminished thereby.

[Ed. Xote.-For other cases, see Dower, Cent. that this should be considered in assigning Dig. $$ 322–328; Dec. Dig. $ 83.*]

dower, William B. Tomlinson claiming a 2. DowER ($ 27*)-ASSIGNING DOWER— DEBTS vendor's lien to that amount. By the anOF DECEASED HUSBAND.

swer it was further alleged that in 1863 A vendor of an undivided interest in land the value of the farm did not exceed $3,210, to his cotenant may not, as against the dower right of the widow of the cotenant, enforce a the price at which it was then sold; that lien for the unpaid price.

since then the farm had been improved; and [Ed. Note.-For other cases, see Dower, Dec. that certain new buildings had been erected Dig. § 27.*]

thereon since, by the present owner, against 3. DowER (8 83*)-ASSIGNING DOWER-DEBTS whom the dower is sought. OF DECEASED HUSBAND. A purchaser at an execution sale is a lienor

The petition and answer were set down of the debtor, within the rule that in assigning for hearing before Chancellor CURTIS and dower the widow is entitled to have considered Judge BOYCE in the Orphans' Court on the enhanced value of the land arising from the September 19, 1911, and the testimony of increased prosperity of the country and the im

witnesses heard. provements in the neighborhood; but the assignment must be made according to the condi

James M. Satterfield and Caleb S. Layton, tion of the land at the time of the sale, independent of the improvements erected thereon for petitioner. James H. Hughes, for deat the expense of the purchaser subsequent to fendant. his purchase.

[Ed. Note.--For other cases, see Dower, Dec. Dig. $ 83.*]

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.

petition and answer, the court find that the By her petition, Ellen B. Tomlinson, wid- petitfoner, Ellen B. Tomlinson and Daniel ow of Daniel R. Tomlinson, deceased, al- R. Tomlinson were married in 1855, and leged that her husband, after marriage, be- that Daniel R. Tomlinson died on March 11, came seised of a farm in Milford Hundred, 1911, 48 years after the sale of the farm by containing about 16642 acres, and that on the sheriff. The questions raised were three: August 29, 1863, the farm was sold by the (1) Whether in assigning dower by metes sheriff on a writ of venditioni exponas is- and bounds the freeholders should consider sued on a judgment in favor of James Cook, the debt due from Daniel R. Tomlinson to for the use of Joseph Hill, against her hus- Boone, represented by the bond for $279.34, band, Daniel R. Tomlinson. The judgment dated prior to the marriage. (2) Whether was for a debt of the husband, contracted they should consider the claim of William B. after the marriage. On March 11, 1911, the Tomlinson to a vendor's lien for the unpaid husband of the petitioner died and the land part of the price of an undivided interest having become the property of William B. in the farm purchased by him from Daniel Tomlinson, an assignment of dower by metes R. Tomlinson subsequent to the marriage. and bounds was asked for.

(3) What improvements had been added to By the answer of William B. Tomlinson, the farm since the sheriff's sale and in the the marriage of the petitioner to Daniel R. lifetime of Daniel R. Tomlinson, Tomlinson was denied, but at the hearing it [1] 1. Inasmuch as the bond of Boone was shown that they were married in 1855. was paid in the lifetime of Daniel R. TomIt appeared further, that before the mar- linson, and therefore was not a debt due riage Daniel R. Tomlinson gave to Stephen from him at the time of his death, it is not C. Boone a bond, dated May 1, 1853, for to be considered in assigning dower, and $279.34, on which judgment was entered

entered the widow's right of dower is not to be diafter the marriage at the October term, 1856. minished thereby, or to the extent thereof. The next lien on the land was a judgment Griffin v. Reece, 1 Har. 508. against Daniel R. Tomlinson for $2,500, en [2] 2. William B. Tomlinson is not entitled tered on January 27, 1859, on a bond given to enforce as against the widow's right of by Daniel R. Tomlinson to William B. Tom- dower a claim for a vendor's lien to the linson, dated January 25, 1859. This latter

This latter extent of the unpaid portion of the undividbond was alleged to have been given to se- ed interest in the farm bought by him cure payment of the price of an undivided from Daniel R. Tomlinson. The right of a one-half interest in the farm, which unui-vendor to enforce a lien for the unpaid

Del.)

ODESSA LOAN ASS'N v. DYER

469

purchase money has not been established It is, therefore, ordered, adjudged and dein Delaware, but whenever the question creed by the court that a commission shall has arisen the tendency of the courts here issue directed to Robert H. Lewis, Gilder D. have been against it. Budd et al. v. Busti Jackson, John W. Caulk, William G. Postles et al., 1 Har. 69; Cannon v. Hudson, 6 and William Denney, five judicious and subHoust. 21; Godwin v. Collins, 3 Del. Ch. stantial freeholders of Kent county, directing 189; Rice v. Rice (C. C.) 36 Fed. 860. them to assign dower to the said Ellen B.

[3] 3. In this state the respective rights Tomlinson, widow of the said Daniel R. of the widow of the alienee of the husband, Tomlinson, out of the said premises in said respecting the improvements on the land by petition mentioned, excepting as aforesaid, the former after alienation and during the according to the condition thereof at the life of the husband, are settled by decisions. time of the sale thereof on the said 29th The purchaser of land of the husband, sold day of August, A. D. 1863, and according during marriage by the sheriff on an execu-to the present value thereof, and that in tion against the husband, is regarded as an determining the present value thereof the alienee of the husband. Green y. Tennant, said freeholders shall not consider the said 2 Har. 336, 339. In assigning and esti- improvements · erected on said lands and mating dower, the widow is entitled to have premises since the said sale, namely, the considered the enhanced value of the land said dwelling house, barn and wagon shed, arising from the increased prosperity of corn crib, chicken house and cow house; the country and the improvements in the And further, that they make return of neighborhood. Green v. Tennant, supra. But their proceedings to this court at Dover, at the assignment should be made according to the adjourned term thereof, to be held on the condition of the land at the time of the 7th day of October, A. D. 1911. the sale, independent of the improvements erected or produced thereon at the cost and expense of the purchaser subsequent to

(2 Boyce, 457) the purchase. Green V. Tennant supra;

ODESSA LOAN ASS'N V. DYER. Rawlins V. Buttel, 1 Houst. 224. By the (Superior Court of Delaware. New Castle. proofs the character of the buildings and im

Sept. 27, 1911.) provements so erected by the purchaser were 1. COURTS ($ 24*)_JURISDICTION OF SUBJECTshown, and the order for the assignment

MATTER-ASSENT OF PARTIES. will contain a statement thereof, as well as not be conferred by assent of the parties, but

Jurisdiction over the subject-matter, caninstructions in accordance with the conclu- must be given by law. sion of the court.

[Ed. Note.-For other cases, see Courts, Cent. The following order was made:

Dig. $$ 76-78; Dec. Dig. & 24.*] And now, to wit, this 19th day of Septem- 2. COURTS_(8 25*)— JURISDICTION-JURISDICber, A. D. 1911, the foregoing petition of

TION OF PERSON.

The jurisdiction of a court over the person Ellen B. Tomlinson, widow of Daniel R.

or property of a party is acquired by process Tomlinson, deceased, for assignment of dow- served in the statutory manner, and the legality er in the lands and tenements whereof the of the service is dependent on the statute, and said Daniel R. Tomlinson was seised in his not on any agreement by the parties. lifetime, and the answer of William B. Tom- Dig. $$ 79, 80; Dec. Dig. $ 25.*]

[Ed. Note.-For other cases, see Courts, Cent. linson, the defendant and present owner

3. APPEARANCE (8 24*) - WAIVER OF OBJECof said lands and tenements, having come

TIONS-SERVICE. on to be heard by the judges of the said The constitutional guaranty that no valid Orphans' Court, and the oral testimony of proceeding can be had against one until he has witnesses produced by the parties in said been notified thereof by proper service of procause having been duly considered by the untarily waive it by voluntary appearance and

cess is for his protection, and a party may volcourt;

submission to the court's jurisdiction; but And it appearing to the court that the where he appears, not voluntarily, but in repetitioner, Ellen B. Tomlinson, and the said sponse to service of process, the service must be

legal to make the proceeding legal. Daniel R. Tomlinson were duly married in

[Ed. Note.-For other cases, see Appearance, the year 1855; that the said Daniel R. Tom-Cent. Dig. $$ 118-143; Dec. Dig. $ 24.*] linson in his lifetime, during said marriage, 4. PROCESS (8 58*)—SERVICE-STATUTES. was seised in his demesne as of fee of The statute defining legal service of proand in a tract of land in said petition men-cess, by prescribing with particularity the methtioned, except the said tract of 7 acres and ods by which service may be made, does not au

thorize service on or acceptance of service by 90 perches situated on the north side of the the attorney of a defendant, for such service is public road in said answer mentioned; that an agent, and is good only when made so since the alienation of said tract of land by by statute. the sale thereof by the sheriff on the 29th

[Ed. Note.-For other cases, see Process, Dec. day of August, A. D. 1863, certain improve - Dig. $ 58.*] ments have been erected thereon, namely, Action by the Odessa Loan Association the dwelling house, barn and wagon shed, against William E. Dyer, administrator of corn crib, chicken house and cow house: Rebecca V. Dyer, deceased. On rule to show

on

“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.

Rule absolute.

T. Bayard Heisel, for petitioner. George L. Townsend, Jr., for respondent.

KNOWLES V. MASSEY. WOOLLEY, J. (delivering the opinion of

(Superior Court of Delaware. Sussex. the court). It appears, from the petition

April 14, 1908.) filed in support of the rule, that the aboveentitled cause was docketed in this court at 1. TRIAL ($ 194*)-INSTRUCTIONS—WEIGHT OF

EVIDENCE-ACCOUNT BOOKS. its May term, 1907; that no service of pro

Where account books are admitted in evicess was made or attempted to be made up-dence, it is improper for the court to charge as on the defendant, except in the manner to the weight to be given them; the jury being shown by the return indorsed thereon, as fol- authorized to give them such weight, in consid

ering them with all the other evidence, as lows: "Service accepted. [Signature of At they believe them entitled to. torney], Attorney for William E. Dyer, [Ed. Note. For other cases, see Trial, Cent. May 18, 1907;" that judgment was moved Dig. $$ 413, 439; Dec. Dig. $ 194.*] for and entered for want of an affidavit of 2. CONTRACTS ($ 28*) - BURDEX OF PROOF defense and execution on the judgment there PREPONDERANCE OF EVIDENCE. after issued.

In assumpsit, it is incumbent on plaintiff [1-3] The jurisdiction of a court over the that there was a contract, express or implied in

to show by a preponderance of the evidence subject-matter of a suit is given it by law law, between plaintiff and defendant. and is never conferred by the assent of par [Ed. Note.--For other cases, see Contracts, ties. Likewise the jurisdiction of a court Cent. Dig. § 133; Dec. Dig. $ 28.*] over the person or property of a party is 3. CONTRACTS ($ 187*) — SERVICES FOR THIRD acquired by process, served in a manner pre PERSON. scribed by the law and not in a manner

Where plaintiff, a physician, rendered servagreed upon by the parties, however satis- agreement with defendant to pay therefor and

ices in curing certain others under a verbal factory that manner may be to one or to both on defendant's credit, defendant was liable to of them. No valid proceeding can be had pay for the services, notwithstanding a subseagainst a person until he shall have been quent promise by any other person to pay there

for. notified of such proceeding by proper sery

[Ed. Note. For other cases, see Contracts, ice of process. This is a right secured to Cent. Dig. $$ 798–807; Dec. Dig. § 187:*] all by the constitutions of the United States 4. EVIDENCE (8 588*)—CONFLICT-WEIGHT OF and of the state of Delaware. Being provi EVIDENCE. sions for his protection, a party may volun Where the evidence is conflicting, it is the tarily waive them, and by appearance, sub- jury's duty to reconcile it, if possible; othermit himself to the court's jurisdiction, but wise, to determine which of the witnesses is en

titled to the greater credit, and, having deterif he appear not voluntarily but in response mined that, to reject the testimony of any witto service of process, the service must be ness believed to be untrue. legal in order to make the proceeding legal. [Ed. Note.-For other cases, see Evidence,

[4] The statutes of this state have declar. Cent. Dig. $ 2437; Dec. Dig. 8 588.*] ed what is legal service, by prescribing with

Action by Jacob C. Knowles against Edparticularity, the methods by which service win T. Massey for professional services and of process may be made upon defendants medicine administered to certain persons at of different classes in different forms of ac- defendant's special instance and request and tion. As legal service of process is defined on his promise to pay therefor. Verdict for and determined by law, a defendant in an plaintiff. action may not determine for himself how

Argued before SPRUANCE and BOYCE, JJ. he may be served nor may his attorney decide for him, for the legality of a service

James A. Marsh, for plaintiff. Woodburn is dependent upon the authority of the law Martin, for defendant. and not upon the authority of the parties.

Service upon or service accepted by the BOYCE, J. (charging the jury). Gentleattorney 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 The plaintiff has declared on a special does not constitute legal service, notwith agreement alleged to have been made with standing its effect may be to bind the attor- the defendant. ney, morally or professionally, to cure the The declaration contains a special count defect by appearance. The court therefore, with the common counts added. The special

Del.)

KNOWLES V. MASSEY

471

count charges in substance that the defend [2] In order to support this action of asant was prior to the bringing of this action sumpsit, it is incumbent on the plaintiff to indebted to the plaintiff in a special sum show from a preponderance of the evidence of money for professional services before that there was a contract, express or imthat time done and performed as a physi- plied in law between him and the defendant. cian and apothecary for the defendant, at his If you find that the plaintiff rendered prospecial instance and request, in and about fessional services to George, Ola and Wilthe healing and curing of William Massey, liam Massey, brothers and sister of the deGeorge Massey and Ola Massey of diseases fendant, as claimed by the plaintiff, the law and maladies under which they had before will not imply from that alone, a promise on then labored and languished, and for medi- the part of the defendant to pay for such cines provided and administered to them, and services. that being so indebted the defendant prom It is not denied that the plaintiff made the ised the plaintiff to pay him the said sum visits and furnished the medicines as shown of money. It is further averred that the de- by his bill of particulars. fendant undertook and promised to pay the The question of the defendant's liability plaintiff so much money as he reasonably turns upon the character of the agreement deserved to have of the defendant for said which he made with the plaintiff at the time services.

the latter was engaged to visit the place To entitle the plaintiff to recover on said where the said Massey children were lospecial count he must prove the defendant's cated. promise as charged in said special count by Did the defendant for himself promise to a preponderance of the evidence.

pay the plaintiff $10 a visit as is claimed by The plaintiff has filed a bill of particulars the plaintiff? Or did the defendant engage and his claim is for 31 visits to George, Ola the plaintiff on behalf of his father with the and William Massey while stricken with knowledge of the plaintiff that he was actsmallpox from November 16, 1903, to De- ing for his father, limiting his personal liacember 21, 1903, at $10 a visit, and for med-bility to the payment for two visits or the icine, aggregating the sum of $312.

sum of $20, as is claimed by the defendant? It is conceded that there has been paid on [3] If you find from the evidence that the account of said bill the sum of $51.50. The plaintiff rendered the alleged services under balance claimed to be due is the sum of a verbal agreement with the defendant and $260.50, with interest from September 17, on the credit of the defendant, as alleged by 1904, said to amount to $53.27; the whole the plaintiff, the defendant would be liable amount now claimed aggregating the sum of to the plaintiff to pay for such services, and $313.77.

any subsequent promise of Sheppard Massey We have a statute in this state which pro- or any other person to pay the plaintiff for vides, among other things, that a book of such services would not alone be sufficient to original entries regularly and fairly kept, affect the right of the plaintiff to proceed shall, together with the oath or affirmation against the defendant upon such special of the plaintiff, be admitted to charge the promise. defendant for sums therein contained.

If the defendant did not enter into the [1] The plaintiff's book of original entries special agreement with the plaintiff as alin this case has been admitted in evidence, leged by the plaintiff, then the plaintiff and you will have it when you go to your would not be entitled to recover. To deterroom for deliberation upon this case.

It mine the liability of the defendant in this is not competent for us to charge you upon action, you must look to the evidence prothe weight or the value which you should duced before you as to the nature, character give to the book account, but you are to and extent of the agreement made between consider it in connection with all the other the plaintiff and the defendant. evidence in the case and give it such weight

[4] This evidence is conflicting; you must as you consider it entitled to.

reconcile it if you can; if you cannot, considThe defendant denies that he made the ering all the evidence produced before you, agreement with the plaintiff as set forth in you are to determine which of the witnesses said special count, but admits that he did you think entitled to the greater credit, and on behalf of his father, with the knowledge having determined as to that, you may reof the plaintiff that he was acting for his ject the testimony of any witness which you father, engage the plaintiff to attend his believe to be untrue, and accept that which brother George who was at the time sick of you believe to be true, and upon that basis smallpox, and he also admits that he did for you are to determine as to the weight and himself agree with the plaintiff to pay him preponderance of the evidence. for two visits to his brother George at $10

You are to decide for the plaintiff or the a visit and he insists that he did pay the defendant in this case according as you find plaintiff for said two visits the sum of $20, the weight or preponderance of the evidence which he claims he had obtained from his for the one or the other. father for that purpose.

Verdict for plaintiff for $250.

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