Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1896-12-31

thaf tie court still had the power to
amend, and that their decision was
That the rule be amended to such time
as the statute might require.
Considerable discussion was then had
az to the time for making the amended
writ returnable, and after Judge Gruhb
had remarked that there was no reason
Why, even IL the court should make the
writ returnable yesterday, counsel
could not havo time to prepare Before
argument the Chancellor directed the
clerk OF the court to amend the writ
so as to make it returnable yesterday.
There was then considerable difference
OF opinion among counsel aB TO the
time necessary, and after the court had
retired for consultation they returned
and announced that 1870 o'clock this
morning had been fixed upon as the
time &C which the assignment OF error
should be presented. 1t was also stated
that Thursday would probably--but
not positively be fixed upon as the day
| for argument.
1t was agreed by contending counsel.
In order to hurry matters, to waive
and suspend the rule regarding briefs
and other technicalities required by
the rules. and the court 30 decreed.
Dover, Dec. 30. 1t was 10. 40 when
court was opened yesterday morning.
Mr.. Pennington, on behalf of counsel for
the Democrats, sail that on. Monday it
was overlooked that only portion Of
the respondents below were actually
suing out this writ uf error, and it is
necessary that they be joined. there
fore move, he said, that the balance of
rho t., ho
Mr.. Ward stated that they had never
been able to see the precipe in the case
and asked that it be produced. IL
setms to me that the record lie correct
and proper as it stands-at least until
| objection is made.
Mr.. Hayes The point is that these
parties cannot object. The only ones
who can object are the plaintiffs. them
solves.
Judge Grubb-Some OF these men
have not employed counsel, and If some
one does not'appear this court has the
right to know. and must know, who are
the parties in error in this case.
Mr.. Ward-Tbere is not the slightest
doubt about the principle of law in
the case, but all the respondents have
heen made parties and will so remain
until severed. Further, the parties
who have proper right to demand
severance are not here.
Judge Grubb-The way to compel
observance to the order of this court, as
enunciated yesterday, is to issue cita-
tion. The court is doing all its part
TO expedite this case, and il there is
any delay it is not on the part of this
coirt, neither was it on the part Of the
court below.
Mr.. Ward-We want no delay and
simply desire the case to go on as
speedily as possible.
Mr.. Wolcott then quoted a case from
Frame" in support Of the contention
that the parties respondent should be
all joined or severed.
Judge Grubb then quoted from
"Tidd's Practice" to show that all
parties must be named in the writ of
error, but when neglected 1t could be
done afterward by motion to amend.
Mr.. Ward then stated that they did
nut insist upon this contention.
George M. Jones then announced that
he appeared for seven of the respond
ents and the sheriff, and waived isau-
| ance Of summons in their behalf.
Edward Ridgely then announced that
he appeared for William II. Walker,
and also waived summons under the
circumstances.
Considerable time was occupied by
counsel on both sides contending as to
the correctness of the record in regard
| to the action of the court below upon
the motion made by counsel for the re-
spondents 10 quash the writ because
sit was ambiguous. evasive and INSULT
Gent" Ii was said that the decision of
the court below was given without
reference to the motion, and that the
record made up by counsel for the Re.
| publicans for the present action to the
court, and over which the dispute
arose, was prepared with special refer
ence to the language of the motion
made by counsel rather than TO the
phraseology in the decision of the
court below.
Judge Grubb then said that no order
was ever made by the court that tho
writ BIS quashed or stricken out
Mr.. Hayes then read the motion for
severance which made all the respond
ents parties and plaintiffs in error, and
the court so ordered.
Counsel for tho defendants in error
then filed their assignment in error, as
follows;
| In the court of errors and appeals OF
Tue !Oluto VI DGldWhTt. uUludb hC
Coy. Abel S. FAIRIES, William III.
Greenwich, John l.. Scotch, Thomas
II. Baxter, Alexander J. Draper,
Samuel G. Hughes, John W. She'll
drake and Frank Tumlin, defendants
below, plaintiffs in error, vs.. tie State
of Delaware upon the relation of James
Frank Alice, ct al, plaintiffs below de-
| fendants In error
Thereupon the defendants below,
plaintiffs in error in the above entitled
| case by John b. Pennington, j. l.. VOL.
colt, II. Il. kenney, j. ID. Hawkins. j.
II. Hughes and Henry Ridgely, Jr., their
attorneys come into court and say that
in the records and proceedings afore-
said and in the judgment awarding the
peremptory writ of mandamus is mani
| fest error in this:
l. That tho court erred in giving
| judgment in favor of the REALTORS in
stead of for the respondents.
2. That the right of the REALTORS to
the remedy by writ of mandamus in
| the cause below was not sufficiently
clear and free from doubt to warrant
| the issuance of such writ.
3. That the court below erred in
awarding the peremptory writ Of man
damus because it appears by the
records and proceedings that the
4