Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1897-01-07


Dover, Jan. 1.-when court opened
yesterday morning Mr.. Hayes asked
permission to have the returns of the
sheriff, which had been omitted from
the record, filed with the clerk, which
was ordered. Mr.. Kenney was also
allowed to amend the record.
Chancellor Nicholson reminded coun-
sci as to the time limit, when John b.
Pennington asked for five hours on each
. size, and Mr.. Ward said that his side
wished the rule of the court enforced
and only two hours on each side
allowed.
Mr.. Wolcott: 81 would suggest that
there were some points raised in the
court below which will not be dis.
cussed 80 deliberately, but there are
other points to be raised and discussed
here which occupy considerable time
in argument"
Chancellor Nicholson: "we think
that four hours on side will be sui.
ficient, and we will take recess from
! until 2. 30, hold session from 2. 30
until and an evening session to COM
plete the case.
This was agreed to by both sides
Next Congressman Pennington be-
gao his argument for the PLAINTIFF in
error. He made an able speech and was
listened to with rapt attention. Un-
fortunately be was compelled to present
the case, which required the citation
Of authorities The latter were SO
varied and numerous, ami consumed so
much time, that his argument in sup
port OF the points presented was neces-
sarily cut short. His argument &C.
cupied all the morning session, and he
closed shortly after the noon recess.
In concluding he called attention to
the point raised before the superior
court in relation to the inspectors of
election, claiming that there we're no
legal inspectors with the exception of
Thomas Mccoy, who was appointed by
the Levy Court He then referred to
the opinion of the court below, quot
ing from Every Evenings account
which. he said. they bad every reason
to believe was absolutely reliable and
correct.
Mr.. Pennington summed up as fol-
owH:
think, il l am not wrong in my
contention. that the court below erred
in that it did not show that the per-
Bons against whom the mandate was
asked to issue were such officers as the
prayer asked that the mandate should
issue against. 1T DOES not appear that
the certificates produced were not such
as the law contemplates. We have
shown that the court below erred in
allowing an amendment making Samuel
l.. Shaw, sheriff, party respondent,
and no right existed for the court below
to make the amendment. Again, we
believe the court erred in awarding
the writ OF mandamus.
Mr.. Pennington concluded at $50.
MIR. Hayes, for the defendants il
error, followed. His argument, which
consisted mainly of citations to combat
the contentious in the assignment Of
error of the plaintiffs, occupied the
time OF the court until 80, when 9
recess was taken until 7.30 when Mr..
Ward began the concluding argument
for the defendants.
!, When Mr.. Ward concluded court wal
adjourned until 0 "a. m. to-day.
Dover, Jan. 2.-Court convened yes
terday morning at 8. 10, ex-Chancellol
Wolcott opening for the plaintiffs il
error. He said: "Before approaching
the main question | desire to brush
away very briefly some of the question:
that have arisen. First, the question
OF amendment. which may not be &c
vital as some others, but which deem
Of great importance. The court hat
no right to make Samuel l.. Shaw
sheriff party. We strenuously OBJ
iected to his being made party, blu
we we're overruled by the court below
No party can be made either plaintiff
or defendant except by the consent o
the parties concerned. This is a we'll
known principal of common law, ant
is supported by the best authorities
Such an amendment cannot be mad
except by special statute. | know i
has been decided in this State that tn
only way in which party can take ad
vantage is by plea OF abatement. Ii
the case of several parti in contract
IL there is a non joinder, the prope
step for defendant is to file his ple
in abatement. If he fails tG do so b
cannot ask for a non-suit. They wer
bound to. discover the proper partie
when they initiated these proceedings.
The exChancellor then quoted iron
9th Pennsylvania, the case of Noll VS.
Scheinforth, in which il is decided tina
all must ne made parties.
In this case, - Mr.. Wolcott con
tinued "Sheritf Shaw had Fever bee
legally informed of the proceedings, be
cause his name was not included in tn
rule, neither did he sign the petition
This principle has been considered s
important, that is the principle @
pleading, that a special statute ha
been found necessary in order to prop
erly cover it, 1t is not necessary 10
me to read any other authorities in sun
port of this proposition. 1t Is undis
putable. But our friends come int
this court and attempt TO reply thereto
Let US see upon what grounds thei
answer is based. Ii anyone can tel
me what the case cited in 9th Harrine
ton, page IL Houston VS.. Levy Cour
of Sussex conuty) means, | would Iik
them to demonstrate it. for | am una
hle to. Even as it appears in the re-
port, it is not in conflict with what
have said. They may amend by con
sent, and We do not deny it. Their
has not been single case cited in GU
own State or outside of it which con
troverts what have already said in re
gard to this point. In one of the case
cited in LIST Harrington motion wa
made TO amend for tbs purpose of cor
recting the record, hut not to create
new party.
II think my friends upon the othe
side have miscooceived the nature an
character OF this question with refer
ence to the power of this court or tb
court below 10 compel the reassem blin
of the board of canvass. What is tn
purpose of the reassembling of, tn