Delaware state journal. [volume] (Wilmington, Del.) 1870-1883, 1880-11-25

roborated by Judge Houston, that the prao-
tice In this county has been for the summons
to Issue at one term and the appeal to be tried
at the next, and that there has not been an
appeal case tried at the first term for the past
~ years In this court.
The application was granted.
In the case of George Dougherty, Jr. Va
George Dougherty's Administrative, sequel
to the celebrated Dougherty will case, William
g. Whiteley, Esq, applied for a continuance
opposing counsel, Harry Sharpley, Esq. be
instructed to file bill Of particulars. lie
had another reason for asking for Il COLI
tinuance, that being that the plaintiif in the
| suit IL u Juror on the present panel which will
be superseded by new panel on Thursday
The suit Is an action On Two proinlssUry
| notes and for work and labor alleged to have
| been done By plaintiff Probated accounts Of
| these claims had been furnished TO MIR. Lore,
whose name appeared ON the trial list rs
counsel for defendant. but this Mr. Whiteey
seemed to have been unaware of. The appli-
cation was granted
The cases of Henry II. MclIullen vs.. John
| O'Bvrne and 'Byrne Brothers were settled
by defendants counsel, II. g. Turner ESD,
giving judgment for costs in favor of plaintii.
The case of the Delaware state Fire and
Marine Insurance Company Va William I.
Croasdale, an action for libel, was then called
up. Az the files of EVERY EVENING for 1877
had, through msapprehension not been
brought into court, the case Mas continued
until tomorrow morning.
Case No. Al. William Il. Croasdale w ID. I.
Hawkins, action for libel, WAS discontinued.
Some time was then occupied in going again
through the trial list, after which court
adjourned until tomorrow morning.
New CASTLE, Nov. 23s-Conrt opened at 10
a. M, Judges Comegys, Wootten and Houston
on the bench.
Coroner Weldin presented his sureties and
bonded for the faithful performance of his
official duties, Marshal McMullen and l.. W.
Stdham being his bondsmen.
After some argument AZ to which case had
precedence, the case of the Delaware State
Fire and Marine Insurance Company Va. Viii
liam 4. Croasdale, that of Kennedy VI.
Woodrow, the latter was taken up; Vallandig-
ham and Booth for plaintiff; Whitley for
| defense
This was an action for Islander brought by
Warren p. Kennedy against William A. Wood
| row, Woodrow having charged Kennedy with
the larceny of So bill from him.
, Ferris Rudolph was the first witness sworn.
He testified thst Woodrow came into Murray's
store, Newark on the evening Of June Sth,
1877, and said he had lost So bill. He
charged Kennedy with taking the the bill,
saying Warren, saw you stoop and pick
hat money with your left hand" Kennedy
n plied, "you can search me" Woodrow
ali sTered, ~ don't wish to search you you
/ nav q ldu plolaIN VI lllilt u ulut
A. fred Bailey, who admitted on cross
exam nation that he didu't goto churches nor
| Sunda schools nor nothing corroborated
| Rudolp us testimony.
JOSEPH, Murray, one of the proprietors of the
store test tied that ON the evening in question
| Woodrow came into his store with so bill
which he wanted to get changed. Mr.. Murray
could not hange the bill, and the defendant
went on to McPikes store, about 20 yards
away, where he got the change in the shape
OF two IS bills Coming back to Murrays
| store he misse one of these bills and, pro-
curing lanter U. he spent about half an hoor
| looking for it al Vund the stores OF Murray and
McPike and aon & the sidewalk, being assisted
in the search by aiany passers-by. Returning
| to Murray's store, Woodrow charged Kennedy
with taking the 1oney, saying, "fou have
| got that 50 bill and | will swear to it y
Kennedy indignantly denied the charge and
offered to be search vi.
On cross-eXaminatl On witness said that the
style of the firm was Murray Co., his
nntner being the capi, '.lllst and himself aud
brother carrying ON til store, bakery and
feed store. Woodrow Leeps jewelry store
in Newark and Kennedy was a resident of
that town who with several Others was
lounging around Murrays store on the even
ing the money was lost.
After calling two more Witnesses the prose-
cutiJn closed.
MIR. Whiteley then moved for non-suit
on the ground of Il fatal variance between the
evidence and the allegation. lie read from
"Iownsend on SANDER and ] libel" section
1913, to the effect that when til prosecution
attach certain meaning TO IN lnnuendo
they must prove that meaning or the case
falls. although the language OF the innuendo
may lbs actionable under another meaning
In the case on trial the words ''stolen or
| larceny was not iae the innuendo, and, in
addition, the prosecution had not proven the
words of the innuendo as set forth in the
| narr.
| [Ihe narr contained three counts, one of
| them being for the use of the words, You
have got that money and will swear to 1t.
The words used. according to one OF the
| witnesses, were, 'You have got that So and
| will swear to it, This was the nearest CORE
spondence between the language as adduecd
| iii evidence and that charged i'll the narr.
| MIR. Booth, i'll opposing the non suit, argued
that the prosecution was not obliged to prove
the exact words as set forth in the narr aud
that there was no material variance i'll this
particular case and there could be no
ambiguity as to the meaning of the language
used by Woodrow. He expressed the opinion
that the court would not take the case from
| the jury on such ilimsy ground as that urged
| by the counsel for the defense.
| The Court overruled the motion holding
that it il not necessary TO prove the precise
| words of the narr, but only requisite to prove
language having substantially the same mean
ing. The implication of larceny sought to be
| coHNtNtu ny tnb WOrus lb lnutlSI iur tIC
| consideration OF the jury.
Mr.. Whitley then offered to place the
record of former trial of this case III evil
dence, so far as to read it to the jury.
Counsel for plaintiff objected. Mr.. Booth
saying that the scope of this offer was to
show, not what former jury had done, but
| what it had not done, and to argue from that |
because one jury had not done anything no
| other jury should.
The record was read and Mr.. Whitley then
| rested his case
Counsel then proceeded to the argument,
Mr.. Vallandigham opening. He claimed a
verdict for 10000 damages. At l2.55 court |
took recess till O'Clock.
Court assembled at 8 o'clock, and trial of
the Kennedy Woodrow SANDER SUIT was
| resumed.
lIessrs Whitley and Booth argued the case
| for the defense and prosecution respectively |
! Chief Justice Comegys then charged the |
| jury briefly, saying that from the evidence |
| the plaintiff was entitled to verdict and the |
| only question for the jury to consider was the |
amount of damages, whether they should be |
| nominal or otherwise. Iu making up that |
| verdict the jury should consider, the one |
hand, that the language had been used with |
| out any proyocation or reason,
! as far as the evidence goes |
and on the other hand, there Is no proof that |
the charge against the plaintiff was repeated |
| on any subsequent occasion.
The jury retired at 40 p. M. and, after a |
deberation of about 20 minutes, returned a
verdict i'll favor of the plaintiff, Kennedy, for
six cents damages"
THE LIBEL SUIT.
Case No. rs, "rhe Delaware State Fire and |
! Marine Insurance Company w. William 4. |
| Croasdae," was then taken up. Whitley
and Lore for plaintiff Bates and Bird Tor
| defense.
The following jury was empaneled George
| X. Mousley, William s. Gibbons, Andrew s.
Y -.