Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1890-12-11

case of Annie A. Dunscith vs. Martin q
Dure and Harry r. Smith, constable,
action of replevin. Lilburn Chandler
for plaintiff and L. G. yandegrift for
defendants. The plaintiff in the case is
a dressmaker, and her husband con-
Quoted grocery and tea store. Her
| husband bought goods from Martin g.
| pure, who sued him for the cost thereof,
and obtained judgment before Squire
| Bertolette. Constable Smith levied upon
all of the goods in the store, some of
which Mrs. Dunsceith claimed as her
| personal property, which she replevined.
She also replevined buggy, which she
also claimed as her property and not her
husbands.
The plaintiff was called, but Mr.. Van
degrift objected 10 her as an incompe-
| tent witness, on account of being the
wife of the party whose goods were
levied upon.
The court, after consultation, decided
to admit the testimony, subject to it
being ruled out, If upon later examina-
ton it should be determined that she
was incompetent to testify in that case.
Mr. Vandegrift noted an exception to
| the ruling.
Mrs, Dunscith then testified that she
sold ladies' and mems hose, candy,
cakes and tobacco in her husbands
store, these articles being her property
She exhibited the receipts in her name,
for the articles seized under the judg-
ment and subsequently replevined by
her. A receipt in her name was also
exhibited for the buggy which had been
levied upon.
The examination was slow and tedious
and lasted until the time for taking the
noon recess.
The replevin case of Annie A. Dunscith
VS.. Martin d. Dure and Constable II. Il.
Smith occupied all of the afternoons
session of court. The plaintiff rested and
the defendant produced testimony to show
that the goods seized and replevined by the
plaintiff were the goods of William ].
Dunscith, her husband. and were properly
seized for his debts. Constable Harry r.
Smith, who made the levy, said that Mrs.
Dunscith made no claim to any of the goods
seized until two days after the levy was
made. The case was still on when court
took recess until Tuesday morning.
The jury in the Vaughn-Quigley case
came into court at 4 O'Clock. asking in
structions relative to the notification
should have had from the defendant of
the unsatisfactory working of the machine
in dispute.
Judge Cullen told the Jury that if there
was a notification within the thirty DAYS
during which the machine was on trial,
that was sufficient. 1t was for the Jury to
decide whether there had been notilica-
ton as testified TO by the witnesses.
The jury again retired, soon afterwards
ordered supper and remained out all night.
The case of Charles DeValinger vs. the
mayor and City Council of Wilmington
was announced as having been referred for
trial by referees, the latter to be selected
by the counsel, Lore & Emmons for plain
TIL and City Solicitor w, T. Lyman for
defendant. This is an action for damages
the plaintiff alleges his property sustained
by reason of the changing of the grade of
West Front street, now Lancaster avenue.
Damages are laid at 81 900.
Al 1915 o'clock, Tuesday morning, the
jury in the case of the Vaughn Morocco
Machine Company VS.. |. Trimble Quig-
ley came into court. They had been
out just Is minutes less than "a hours.
When asked by the prothonotary if
they had agreed upon Il verdict, several
jurymen nodded afiirmatively, much to
the surprise of all present, who had ex-
pected the announcement of disagree
ment. The foreman of the Jury then
gave in a verdict for the defendant.
At the request of Mayor Harrington,
counsel for the plaintiff, the jury were
polled, but each man formally assented
to the verdict as announced by the fore
man. ..5~
When the jury retired, Monday af-
ternoon, they took ballot which re-
suited in favor of the defendant by
seven to five. This status remained un-
changed until after they came into court
and received the second charge from
Judge Cullen, upon the question of what
notice the defendant should have given
the plaintiff with respect to the unsatis-
factory condition of the machine in dis
pute. After this four of the five who
had held out for the plaintiff went over
to the other side. The fifth man held
out until Tuesday, when he changed
to the side of the defendant and the
jury's verdict was returned to the court.
The jury was then discharged from
further attendance upon this term, the
second panel being now in service. The
defendant shook hands with the jury
men and cordially thanked them for
their verdict.
The replevin case of Annie A. Dun
seth VS.. Martin & Dure was then re-
sumed and the defendants testimony
was concluded. The case was argued
by Mr.. Chandler for the plaintiff and
by William NJ. Byrne and l.. G. Vande-
grift for the defendants. This was Mr.
Byrne's first appearance in case, he
having been admitted to the bar at the
present term of court, and he acquitted
himself with great credit, both in his |
address to the court upon the law and |
in his argument before the jury.
A rrrp,pnt 1yac i'm tNrpnrncc v.hn,, tbo
court adjourned for the noon recess and |
the case will go to the jury the after
noon.
The rcplcvin case of Annie A. Dun
seth vs. Martin & Dure was argued by |
Lilburne Chandler, counsel for plain
till, at Tuesday afternoons session of |
court; yesterday morning Chief Justice
Comegys charged the jury.
The charge disposed Of an important
question affecting the right of wife to
testify in case involving the interests
of her husband, the counsel for the de-
fence contending that she could not
The court held that the wife was com
potent to testify asagainst her husbands
interests. Heretofore, and at common
law, husband and wife were excluded
rs witnesses in suits in which either or
JUL NtIt pCCuliuTlly IHlcleStctli anu |
other parties to suits were also similarly
The act of 1878 made
parties to suits competent witnesses, and
this law, the court held, also makes the
wife competent witness in her own
suit, involving her own property,
As TO the other ground of objection
raised by the defence, that such testi-
mony was against public policy, as it
would admit of testimony as to matters
If confidence arising out of the marital