Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1896-12-31
Counsel Authorized to Present the As
Sisnment Of Error Tuesday.
WAVING OF ALL TECHNlGALITlES
Argument Probably to Begin
To-day.


and appeals met in special session yes
terday to hear argument on the writ Of
error taken from the superior court by
the attorneys for the Democratic mem
bors of the board OF canvass of this
county. There was an unusual at
tendance OF attorneys, several being
present from both New CASTLE and Sus-
sex, as a positive decision on one side
or the other was expected. Those who
had this idea, however. were disap-
pointed, as, after argument consuming
four hours time, the court announced
that the assignment of error could
be presented this morning and that
probably Thursday though this date
was not positively agreed upon by the
bench-they would hear argument on
the case. In order to expedite matters
both sides agreed to waive all techni.
calities. such as the requirement. TO
file printed briefs, &c.
The court was composed of Chan
cellor Nicholson and Judges Grubb
and Marvel. Judge Cullen occupied
seat on the bench during the entire
proceeding.
1t WAS 10 40 O'Clock when Chancellor
Nicholson ordered the crier to open
court, and when this duty had been
performed the Chancellor stated that
in accord with the provisions Of chapter
IT'S of Vol. XIX, Laws of Delaware, this
special session had been called for the
A lice, ct al, Vs. Mccoy, ct AL, and
that the Judges comprising the court.
under the system Of rotation. would be
the Chancellor and Judges Marvel and
Grub. He then saw that the court
was ready to entertain any motion in
relation to the case.
Ii. II. Ward, counsel for the Republic
cans, then arose and said: las i read
the statute, or rather that part OF it
calling for special SESSION of the court
of errors and appeals, the court has
power to entertain any business that
may be brought before it. In the case
of Alice, ct al, VS.. Mccoy, ct al, the
writ of error was not issued in accord
auce with the rules of this court. 1t
appears from this writ, which l now
submit to your hunors for inspection,
that ii was issued on December Sd and
that it was not made out in conformity
with rule 81 of tho rules governing
the courts of this State, and is there
fore not properly and legally writ
OF error. We therefore move, il your
honors please, that it be dismissed -
After the motion had been submitted
in writing, at the suggestion OF the
Chancellor, Mr.. Ward was informed
that the court was prepared to hear ar
gument on the motion. Mr.. Ward oc-
cupied only about 10 minutes III sup
port OF his contention, while ex-Cban
cellor Wolcott began for the other side.
!, Mr.. Wolcvtt said that they desired
to know, in the first place, whether the
a4F in .strt tT, tuk sah
Mr.. Ward replied that he and his col
leagues appeared for the respondents
The ex-Chancellor then said that the
acknowledgment Of counsel on tho
other side disposed of at least orc
question that might have arisen before
the case was thorough.
Continuing, Mr.. Wolcott said that,
for the Information of the court; he
would say that his contention was that
the court of errors and appeals had no
authority, under the constitution, to
make any rule regulating the return of
writ of error. Every other court in
this State, be said, is expressly author
lied to make rules to regulate it's pro-
cedure, but no such authority is dele
gated to, the court of errors and ap-
peals, although every court has such a
power inherently. The power to make
such regulations in other instances, as
provided by Legislative enactment, is
an implied denial to the court of errors
and appeals OF the privilege to do like
wise. The statute intendad to with
hold this power from the court of
errors and appeals.
Chancellor Nicholson here interrupted
Mr.. Wolcort by asking whether the
court of errors ard appeals, the highest
authority in the State, had not already
nullified the rule.
Mr.. Wolcott admitted this, but said
that il he was not mistaken the rules
were formulated by George II. Bates,
and were practically the same as those
governing the Supreme Court of tho
United States. Mr.. Wolcott said that
he was among the lawyers who met
in the Kent county court room one day
IA very warm day-hut he did not be
lieve that any rules governing tho
court of errors and appeals were ever
adopted. They were simply formulated
and promulgated by the then Chief
Justice and Mr.. Bates, he said, with
out being formally adopted. / simply
contend that this court has no power,
because such power would have been
expressly delegated by statute had the
Legislature go intended Mr.. Wolcott
then proceeded to cite a number OF
authorities in support of his conten-
ton. He was interrupted by Judge
Grubb. who asked him whether his
contention went to such an extent as
to claim that the court of errors and
appeals had not the power TO mako
rules for its.own guidance and govern
ment, to which Mr.. Wolcott replied
that the court had an inherent power
only. The failure to provide by stat
ute, he said, is an implied denial of
such right The Legislature deemed ii
necessary to expressly clothe the or
phans' court and the court of chancery
with such power but did not do SO in
the case Of the court of errors and an
peals.
Judge Grubb then stated that he
only wished to know how far the con
tention went.
Mr.. Wocott continued this line of
argument until | O'Clock, at times be-
coming very eloquent. He was Listened
to with the greatest attention, scarcely
person leaving the court room until he
bad closed. The court. at l2. 80 o'clock,
ordered recess until 3. 30.
Upon reconvening Mr.. Ward contin-
ued argument in favor OF his motion to
dismiss, made earlier in the day. He
bad not proceeded far before he was
interrupted by the Chancellor, who
asked whether Mr.. Ward commended