they discredited the plaintiffs on this branch of the case, their verdict, under the only construction of the court's instructions reasonably open to them, must have been for the defendant. The defendant claimed upon the trial, and sought to enforce the claim by the offer of evidence, that structural defects of the Cady building, and weaknesses which age had developed in it were responsible for its collapse. Although a portion of the charge dealing with this subject is embraced in one of the grounds of appeal, we understand that such force as the defendant claims from it in disclosing error in the charge is in connection with other assignments already discussed. In any event, the charge upon these matters was clearly correct. [13] The court, it is true, left it for the jury | fully warranted by such a finding. Had to determine whether that was so, but upon the conceded facts that he was its president, its manager, its "head," and in personal charge of the work, the court might well have taken the responsibility of charging the jury as matter of law that his promise, if he made one, bound the defendant. If the plaintiffs could not safely look to him to speak with the company's authority, there was apparently no one to whom they might appeal. There was too, as we have already said on another phase of the case, abundant opportunity after June 14th to fully secure the safety of the building. If the plaintiffs thereafter desisted from doing anything to this end because of a definite promise of the Douglas Company to do so, this absolves the plaintiffs from negligence-as the court in plain effect told the jury-and charges the responsibility for the collapse to the Douglas Company, if the lack of support caused it. [14-16] If, on the other hand, the Douglas company made no such promise, then the plaintiffs, under the positive charge of the court imposing upon them the duty of reasonable care in the protection of their property, were guilty of effective negligence, in view of their knowledge of the situation, its imperative demands, and their confessed failure to meet these demands. This issue was fairly submitted to the jury under instructions that gave deserved prominence to the interview, and to its substance, whatever that might prove to be. If the jury observed them-and we must so assume-their verdict is conclusive that they found for the plaintiffs upon this vital feature, and it is Certain assignments of error are based upon portions of the charge dealing specifically with the law involved in the second and third counts of the complaint. These become immaterial with the removal of that part of the plaintiffs' case from consideration. The criticism of the court's summarizing statements of the pleadings and of the evidence have no merit, and the court's failure to charge in the language of the numerous requests of the defendant was not error. It is enough to say that many of these requests are disposed of by our treatment of corresponding portions of the charge as given, and that nothing in the rest of them calls for independent notice. There is no error. The other Judges concurred. (7 Boyce, 516) (108 A:) JONES v. HINDERER. (Superior Court of Delaware. New Castle. January 28, 1920.) 1. JUSTICES OF THE PEACE 127-RULE TO SHOW CAUSE PROPER PROCEDURE TO VACATE JUDGMENT ENTERED ON TRANSCRIPT SHOWING LACK OF JURISDICTION. Rule to show cause is a proper procedure for vacating judgment of a justice of the peace entered on a transcript affirmatively showing lack of jurisdiction of the justice. 2. JUSTICES OF THE PEACE 122 (2)-SERVICE LESS THAN FOUR DAYS BEFORE DAY OF AP PEARANCE INVALIDATES JUDGMENT. Under the statute requiring service to be made at least four days before the day of appearance, where summons returnable on the 9th day of June was not served until the 5th, such service was not as required, and gave the justice no jurisdiction of the case, so that his judgment entered on defendant's default was void. 3. TIME ~~9(4)—TO SERVE PROCESS FOUR DAYS BEFORE APPEARANCE FIRST AND LAST DAY MUST NOT BE COUNTED. Under the statute requiring service to be made at least four days before the day of appearance, full time must be allowed, not counting first or last day. Action by John J. Jones, before a justice of the peace against Ernest W. Hinderer. Judgment for plaintiff. Execution issued with return of no goods. Certified transcript of docket entries of judgment and execution filed with the prothonotary. Judgment (No. 491, May term, 1918) entered thereon, under Rev. Code 1915, § 4033. On rule to show cause why the judgment should not be vacated and stricken from the record. Rule made absolute. See, also, 103 Atl. 761. HEISEL, J., sitting. Herbert H. Ward, Jr., of Wilmington, for plaintiff. Robert Adair, of Wilmington, for defendant. which case it did not appear from the transcript that the service of the summons had been verified by the oath of the constable in writing, and the court said that a full copy of the whole record, such as would be sent up on certiorari, might cure the defect and, therefore, certiorari was the better procedure; but in Goldstein v. Steele, 3 Boyce, 125, 80 Atl. 522, where lack of jurisdiction of the justice affirmatively appeared in the transcript, the court held the rule to show cause to be a proper procedure for vacating a judgment entered upon such transcript. In this case it appears by the transcript that the summons was served on the 5th day of June, returnable on the 9th day of the same month. The statute requires the service to be made "at least four days before the day of appearance." Where the required service must be not less than a fixed number of days before the day of appearance, the service must be made at such time before the day of appearance as to allow the full number of days required between the service and appearance without counting either the day on which the service is made or the day for the appearance or return. 1 Woolley, S 186; Robinson v. Collins, 1 Har. 498; Warrington v. Tull, 5 Har. 107; Chambers, Trustee, v. Jones et al., 1 Pennewill, 209, 39 Atl. 1098; Content v. Addicks, 4 Pennewill, 221, 57 Atl. 291. of the summons in this case was not made It appearing from the record that service at least four days before the day of appeardid not have jurisdiction, and, therefore, the ance, as required by the statute, the justice judgment and all proceedings thereon are void. Let the rule be made absolute and the judgment vacated and stricken from the records of this court. PENDERGAST v. FOSTORIA OIL CO. (Court of Chancery of Delaware. Oct 16, 1919.) OF RULES OF COURT NOT TO PREVENT TRIAL UPON MERITS. Rules of court are made for the prevention the trial of causes, but not to prevent trials of delay, and for expediting and simplifying upon their merits if the party in default can give a reasonable excuse for his failure to comply with the rule. HEISEL, J. This is a rule to show cause why a judgment of this court entered upon 1. COURTS 85(4)-EXCUSABLE VIOLATION a transcript from a justice of the peace docket should not be vacated and stricken from the record. The transcript discloses that the summons was issued on June 4, 1917, returnable June 9, 1917, and served personally on the defendant June 5, 1917. Defendant failed to appear and the justice of the peace gave judgment against him by default. After issuing an execution and return of nulla bona thereon the judgment was entered here. [1-3] Counsel for plaintiff moved to dismiss the rule on the ground that the proper procedure was by certiorari, citing Wood v. Dickerson, 3 Pennewill, 23, 50 Atl. 215, in 2. EQUITY 372-MOTION TO HAVE DATE FIXED FOR HEARING NOT REQUIRED OF PLAINTIFF AFTER NOTICE FROM DEFENDANT OF MOTION TO SUPPRESS TESTIMONY TAKEN BEFORE COMMISSIONER. Where counsel for defendant, after testimony taken before commissioner had been returned to the court and before expiration of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 30 days from such return, notified counsel for | complainant that a motion would be made to suppress such testimony, complainant was not required, under Court of Chancery rule 82, to make motion in writing within 30 days after return to have date fixed for hearing the cause. Action by Arthur E. Pendergast against the Fostoria Oil Company. On motion to dismiss bill of complaint. Motion refused. Robert H. Richards, of Wilmington, for complainant. George N. Davis, of Wilmington, for de fendant. MESSICK V. JOHNSON et al. (Court of Chancery of Delaware. Sept. 5, 1919.) 1. EQUITY 271-AMENDMENT OF BILL BEFORE FILING OF DEFENDANT'S PLEADING PROPER. Order refusing to grant preliminary injunction, not constituting a final disposition of the cause, did not preclude the granting of leave to complainant to amend bill while action was still pending and before a pleading had been filed by defendants. 2. EQUITY 272-AMENDMENT TO BILL SETTING OUT MATTER OCCURRING SUBSEQUENT TO FILING OF BILL NOT OBJECTIONABLE.. bill. THE CHIEF JUSTICE (the Chancellor being disqualified to hear the cause). There is Under court rule 51 bill may be amended a preliminary motion pending in the above-notwithstanding the amendment sets out matstated case, which should be disposed of. ters which occurred subsequent to filing of I refer to the application made a few weeks ago by Mr. Davis, solicitor for the defendant, 3. EQUITY 269-SUFFICIENCY OF AMENDED for the dismissal of the bill of complaint filed in the case, because of the complainant's failure to comply with rule 82 of the Court of Chancery, which reads as follows: "When the testimony taken before examiners or commissioners have been returned to the court, then upon motion of either party the Chancellor will fix the time for hearing the cause. If the complainant fails to file such motion in writing for thirty days after all of the commissions have been returned, and no order of the Chancellor, or stipulation of solicitors approved by the Chancellor, providing otherwise be filed in the cause, then the cause will be deemed to have been abandoned; and the register in chancery shall as of course enter on the record a statement that the bill has been dismissed and the costs shall thereupon be paid by the complainant within thirty days." The complainant resists the motion on the ground that the rule does not, or should not, apply when the defendant by his own act has made compliance with the rule unnecessary. It is claimed, and not denied, that counsel for the defendant after the testimony was taken before the commissioner had been returned to the court, and before the expiration of thirty days from such return, notified counsel for the complainant that a motion would be made to suppress said testimony. BILL TO STATE CAUSE OF ACTION NOT TO BE In passing on application to amend bill befect of the amendment and the sufficiency of fore defendant has filed any pleading, the efthe amended bill to state grounds for equitable relief are not to be considered. 4. EQUITY 265-LATITUDE TO BE ALLOWED IN GRANTING LEAVE TO AMEND PLEADINGS. Much latitude is allowed in granting leave to amend. THE CHANCELLOR. An application has been made on the part of the solicitor for the complainant to file an amended bill in the above cause, and notice of the application has been given to the solicitors for the defendants. After the original bill was filed a hearing was had on a rule to show cause why a pre [1] Rules of court are made for the prevention of delay, and for expediting and simplifying the trial of causes, but not to pre-liminary injunction should not be awarded, vent trials upon their merits if the party in default can give a reasonable excuse for his failure to comply with the rule. [2] I think that counsel for the complainant in this case had good reason to conclude, after receiving said notice, that it was unnecessary to ask that a time be fixed for hearing the cause before the motion to suppress the testimony was disposed of. and in June, 1919, an order was made denying the motion on the ground, as therein stated, that the complainant had a full, adequate and complete remedy in a court of law. Since which time no further step has been taken in the cause until this application was made. No answer, plea or demurrer has been filed. [1] It is not at all clear that the order The motion to dismiss the bill filed by the made refusing the preliminary injunction complainant is, therefore, refused. was a final disposition of the cause, and (108 A.) being still pending and no pleading having | juries. On demurrer to first count of declabeen filed by the defendants, it is amendable ration. Demurrer sustained. if a proper amendment be submitted. CONRAD and HEISEL, JJ., sitting. L. Irving Handy, of Wilmington, for plain tiff. Herbert H. Ward, Jr., of Wilmington, for defendant. It is averred in the first count of the dec 66* [2-4] After consideration of the original and amended bill it is clear that no tenable objection lies to the giving of leave to file the amended bill. It is not a sufficient ground that it sets out matters which occurred subsequent to the filing of the bill. Rule 51. In passing on the present applica-laration: tion the effect of the amendment is not to be considered, nor the sufficiency of the amended bill to state grounds for equitable relief. There seems to be no question of good faith on the part of the complainant. Until the cause has reached a final stage, so that the losing party may, if he desires, take an appeal therefrom, the cause must either pro- | ceed to that stage, or be dismissed voluntarily, or on motion. A demurrer to the amended bill when filed would raise the question whether the complainant has full relief at law, and if sustained might result in an order dismissing the bill. Besides, much latitude is allowed in granting leave to amend. That the said Jesse M. Redding was a passenger for hire on one of the trolley cars operated by the said defendant and was sitting close to the rear of said car which was coming north through," etc., "and was using due care and caution on his part when through trolley car then and there ran off of the metal the negligence of the said defendant the said track on which it was operated and left the metal track and the street and ran into a stump of a tree which was alongside of the street in a park. *** That by reason of the negligence aforesaid, the said Jesse M. Redding was thrown out of his seat and across the aisle of the car and was thrown against the seat on the right-hand side of the car," etc. The declaration concluded with description of injuries received and lays damages, etc. It was contended for the defendant that the allegation, "when through the negligence of the said defendant the said trolley car then and there ran off of the metal track on which it was operated and left the metal track and the street and ran into a stump of a tree which was alongside of the street in a park," is insufficient in that it does not specify any act of negligence causing the car to leave the track; such as is alleged in the second count of the declaration, "great and dangerous rate of speed by which the trolley left the track;" or in the third count, "failure to shut off the motive power when the trolley car left the track." That such an allegation of negligence fails to reasonably apprise the defendant of what negligent act there is intention to prove. First count of passenger's complaint against street railroad, alleging that he was sitting close to the rear of the car, using due care, when, through the negligence of the road, car ran off track and street and into stump of a tree, by reason of which passenger was thrown out of his seat, across the aisle, and against a seat on the other side, held demurra-ligent act complained of was that the car ble as not specifying any act of negligence causing the car to leave the track. Counsel for plaintiff insisted that the neg ran off the track; and that it was peculiarly within the knowledge of the defendant why the car ran off the track, making the Action by Jesse M. Redding against Wil-count sufficient. mington and Philadelphia Traction Company to recover damages for alleged personal in- CONRAD, J. We sustain the demurrer. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (7 Boyce, 520) and that by reason of his said age and bodily STATE, to Use of JEFFERSON, v. STID- infirmity, he may be unable to attend at the trial of the cause, the court made the following order: HAM et al. New Castle. Jan. 14, 1920.) (Superior Court of Delaware. "It is hereby ordered that Harry R. Brown be appointed commissioner to take the testi DEPOSITIONS 17-TESTIMONY OF PLAINTIFF mony of Charles W. Jefferson, on his own be MAY BE TAKEN ON COMMISSION. Application for an order for taking testimony of plaintiff in his own behalf before a commissioner to be appointed by the court will be granted, as against objection that constitutional provisions for taking testimony on commission do not apply to parties in suit; affidavit attached to application stating that plaintiff is 81 years old, is paralyzed in his right arm, and for several months has been confined to his room, and will be unable to attend the trial. half, in the above-stated cause, without written TION CO. Conrad, J. "Heisel, J." (7 Boyce, 521) Action by the State of Delaware, to the GARDNER v. WILMINGTON & P. TRACuse of Charles W. Jefferson, against Harry J. Stidham and another. On application of plaintiff for an order to take his deposition in his behalf on commission de bene esse. Order granted. CONRAD and HEISEL, JJ., sitting. George N. Davis, of Wilmington, for plaintiff. Reuben Satterthwaite, Jr., of Wilmington, for defendant Stidham. Application in writing was made to the court by plaintiff's attorney, based upon affidavit of plaintiff's wife for an order for taking the testimony of plaintiff, on his own be half, without written interrogatories filed, upon oral examination and subject to crossexamination and re-examination, before a commissioner to be appointed by the court. In the affidavit attached to the application, the affiant deposeth and saith: (Superior Court of Delaware. New Castle. January 15, 1920.) 1. RAILROADS 344(5)-COUNT FOR INJURY BY OPERATION OF TROLLEY CARS AT CROSSING INSUFFICIENT. In action for injuries to an occupant of automobile in collision at crossing, count alleging that defendant negligently operated trolley car in a southerly direction on a track ordinarily used for cars traveling in opposite direction, causing collision, without alleging that defendant failed to sound gong or give other suitable warning of approach of car, held not to state cause of action. 2. RAILROADS 344(5)-COUNT FOR INJURY AT CROSSING BY OPERATION OF TROLLEY CARS In action for inuries to occupant of automobile in collision at crossing, allegations that defendant negligently operated trolley car in a southerly direction upon the north-bound track, and negligently failed to have a watchman at such crossing or give any other suitable warning of approach of car, causing collision with automobile, held to state cause of action. "That she is the wife of Charles W. Jefferson, that the said Charles W. Jefferson is the plaintiff in the above-entitled cause, and that the said Charles W. Jefferson is 81 years of age, and is paralyzed in his right arm, and Action by Frank Gardner against the Wilthat for several months prior to the date here-mington & Philadelphia Traction Company. of has been confined to his room, and that by reason of his said age and bodily infirmity, the said Charles W. Jefferson would be unable to attend as a witness at the trial of the above stated cause." Laurel Print. & Pub. Co. v. Franklin Photo Engraving House, 6 Boyce, 185, 189, 97 Atl. 601, was cited in support of the application. Objection was made for defendant on the ground that the provisions of the Constitution for taking testimony on commission apply to certain witnesses only, and not to parties in a suit. After reciting the facts as contained in the affidavit that the plaintiff is of the age of 81 years, and is suffering from paralysis in his right arm, and unable to leave his room, On demurrer to first and third counts of declaration. Demurrer sustained as to the first and overruled as to the third count. CONRAD and HEISEL, JJ., sitting. L. Irving Handy, of Wilmington, for plaintiff. Herbert H. Ward, Jr., of Wilmington, for defendant. It is averred, in part, in the body of the first count of the declaration: 66 * *That at the time aforesaid the exhibition and that great numbers of people Delaware State Fair was holding its annual were there, and a great number of automobiles were passing to and from the Delaware State Fair Grounds and across the said trolley lines |