Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1896-03-19

Oh bIlb lOT a ubn-
suit in the case of Daniels Vs. the Lie
big Manufacturing Co. was continued
Wednesday afternoon. Thursday the
Court gave decision sustaining the
motion for a non-suit The special
jurors were then discharged. The case
of Seward VS.. the Mayor and Council
of Wilmington was then brought up.
and Mr.. Bird, counsel for the plaintiff.
moved that it be held over, in view of
tho illness of the foreman of the jury.
The motion was granted and court then
adjourned until Friday morning.
When the court rcconvened argu-
ment was begun in the quo warranto
case OF the State Va. William II. john
son. 1t is upon rule to require John
son to show cause why he has assumed
the office OF road commissioner of PEN
cader hundred. The State is repre-
sented by Medford II. Cahoon and
Harry Whiteman, and johnson is repre-
sented by John Biggs. johnson is
alleged to have wrongfully, unlawfully,
and without color of right, usurped
the office since November 10th, 1894.
1t is alleged that he did not have a
majority of the votes at the election of
November 7th, 1894.
Mr.. Biggs for Johnson, presented
his clients affidavit claiming that he
was legally elected. Mr.. Biggs moved
to quash the writ on the ground that
-tAere were no ailidavits to support the
application. He drew attention to tho
Courts decision in the election case of
Lynch VS.. Martin, in which the Court
decided that in this State there must
not only be aflidavits. but they must
show strong grounds upon which to
question the title of the person holding
the office: that being in the office and
in the discharge of the duties of the
office is prima facie presumption that
the title is good.
The Court discharged the rule on the
ground of the absence of affldavits to
support the motion.
Andrew @. Gray and Herbert II.
Ward, Thursday afternoon, filed the
following paper in the office of the
clerk of the peace, being their reasons
for the motion for an arrest of judg-
ment in the case of Brown and Swan,
the ex-Farnhurst keepers.
In the court of oyer and terminer of
the State of Delaware, New Castle
county, State of Delaware vs. Daniel
Brown and John j. Swan, February
term, 1896. Indictment, murder in
the second degree.
Daniel Brown and John j. Swan, the
defendants in the above stated cause,
by Andrew c.. Gray and Herbert III.
Ward, their counsel, file the following
reasons for an arrest OF judgment.
THAT il appears by the record of
the court Of oyer and terminer and of
said cause that the court of oyer and
terminer bad no jurisdiction to try
said cause.
2-That it appears by the record Of
said court and said cause, that the
court of oyer and terminer had no iuris-
diction to try the defendants in said
cause, under the indictments therein,
and had no jurisdiction to render judg-
inert therein.
3--That it appears by tho record of
said court and said cause that the
indictment in said cause was
found by the grand jury in the
court of general sessions of the
peace and Jail delivery for said State,
and was never removed, by certiorari
OF other process, into the said court of
oyer and terminer, and that therefore.
under the statutes of said State, the
proceedings before said court in said
cause were all coram non judice, and
that the said court bath no juristllc-
tion TO pronounce judgment in said
cause.
The point made by the reasons is
that the grand jury was summoned for
the court of general sessions and not
for the court of oyer and terminer; that
the indictment was turned into the
court Of oyer and terminer without due
process.
Ii was stated at the Court House
on Friday that the custom of turn
ing an indictment from one court into
another had been followed for 100 years.
The argument began Friday after
noon. Both sides waived the presence
of the prisoners. Andrew Q. Gray OF
counsel for the prisoners, read the
reasons for the desired arrest of judg-
ment Herbert ii. Ward was present
with his colleague. The State was
represented by Attorney General Robert
@. White and Deputy A Attorney General
Peter l.. Cooper, Jr There was full
bench to hear the argument.
Mr. Gray read the precept for the
court of general sessions and court OF
oyer and terminer of the February
term. He held that the grand jury
was summoned to the court of genera
sessions and not to that of oyer ano
terminer; that the Indictment wal
made in general sessions and never
came before oyer and terminer by any
PipNVbss INV fANNNPp tCh
tianed marginal note mado by Deputy
Clerk of the Peace Janvier, directing
that the grand jury be summoned t
oyer and terminer. The paper itsel
was signed by the four judges, but th'
memorandum was made by Mr.. Janvier
after the Chief Justice had directed
him to call the jury. Mr.. Gray helc
that under these circumstances tn
grand jury was not legally summoned
to oyer and terminer.
Attorney General White followed Mr.
Gray and took the ground that tn,
marginal note upon the precept mad
by the clerk of the court, to summon
grand jury of oyer and terminer, wa
in fact an order of the court. Sucl
were the instructions to the sheriff, ant
the grand jury had been summoned ant
had appeared. He held that tho func
tions of tho grand jury were complete
Mr. White read from the statute t
show that the grand jury is summone'
for the whole year and not required t
be summoned especially for the cour
of oyer and terminer.
Deputy Attorney General Cooper drey
the Courts attention 10 the fact tina
at the last term he had moved that tn
Moraban case be moved from genera
sessions to over and terminer, and tn