The daily gazette., 1876-12-13
FOUhT TIL EDITION
Court Proceedings.
NEW CASTLE DEL, Dec. IL, 1876,


Superior Court and the Court of Gen
eral Session met this morning at 10 o.
clock.
In the late election eases gro wing out
of the alleged assaults and batteries com
mitted by Deputy L. S. Marshals and
which have been sent to theCircuit Court
District Attorney Spruance stated that
the records Of the Court of General Ses-
sions showed that these cases were con-
tinued on his application, and he desired
to have this matter corrected. He ex-
planned that there was no such motion
pending on his part, he having complied
with the requirements of the u. 3. Stat
utes. He could not ask continuance as
in his judgment they were removed from
the State Court
The Court assented to the correctness
of the District Attorneys statement that
no motion was hending but added that it
was their purpose to try these cases at
the next term ofthe Court of General Ses-
sions. They directed an entry of con-
tinuance by order of the Court.
The case of n. l.. Tomlnson and CO. VS.:
John +. Quigley,was then tried. Higgins
for plaintiff and Harrington, and Hof-
fecker for defendant.
The facts OF the case are as follows In
1874 Tomlinson, and Co., were building
a schooner which occupied them from
April to Christmas. Quigley the defend
ant contracted to furnish the material.
Under the contract this material was to
be of first class Delaware white oak.
The plaintiff claims that this contract
was violated. The keel ahd bed log fur
nished by defendant was all right but
the piahk and fitch was one-fourth of
it defective. The price of the plank was
$40. per thousand and the fitch S33. The
plaintiff used the part of the lumber which
was usnabie and the one-follrth part
which was decayed, they did not use.
No admission was made by plaintiff that
the whole ofthe timber was good or that
they were to pay for more than the three
fourths which was usuabie.
The gross amount, according to dig.
lcy's statement was $2,4i9 70. The
plaintiffs claim that there is deductable
from this amount the sum of $6l2 43, the
price Of the . unsound lumber. In the
course Of using this lumber it also be
came necessary to take out some of this
lumber which had been placed in the YES
sci at a est of 500, thus making the
whole damages claimed by Tomlinson &,
Co. to be $Sl2 i3. Plaintiff paid the de-
fendant from time to time, but when a
maj settlement came there was hitch;
defendant claimed complete fulfilment
of the contract and demand the balance
due, amounting to $500 20.
Plaintiffs claimed that by reason of a
breach Of contract they had overpaid
Quigley some S400. Quigley under the
Mechanics Lien law in force commenced
proceedings and recovered this money.
Tomlinson Il Co. did not defend that
suit, but instituted this suit against Quig-
ley for damages. This course the court
has decided that Tomlinson & Co. had
right to make his election whether to de-
fend Cuigley's suit or to substitute this
action, which is now being tried.
At the beginning of the case Mr.. Hig-
gins offered in evidence a contract to
which Mr.. Harrington objected as it var
led with the contract law in plaintiffs de-
claration. The plaintiff then took non
suit