you should not find for the plaintiff, then your verdict will simply be that you find for the defendants.

Verdict for defendants.

(2 Boyce, 311)

LANGRELL v. WRIGHT.

MARLEY V. DUFF.

(2 Boyce, 312)

(Superior Court of Delaware. New Castle. May 11, 1911.)

PLEADING ($ 49*)-DECLARATION-UNCERTAINTY-DEMURRER.

A declaration which alleges that defendant maliciously and unlawfully, without a warrant, and without any reasonable cause, procured the

1911.) EXECUTORS AND ADMINISTRATORS (§ 450*)CLAIMS AGAINST DECEDENT'S ESTATE-ACTIONS PROBATED ACCOUNT.

One suing a decedent's estate for personal

services rendered decedent in his lifetime must

produce the affidavit that the claim is just and nothing has been paid thereon, required by Rev. Code 1852, amended to 1893, p. 677, c. 89, § 29. [Ed. Note.-For other cases, see Executors and Administrators, Dec. Dig. § 450.*]

Action by Belle Langrell against James D. Wright, administrator of George W. Moore, deceased, for personal services rendered the deceased during his life by plaintiff. Nonsuit entered.

See, also, 77 Atl. 772.

At the trial, after the plaintiff had proved the nature and value of the services rendered and closed her testimony, the defendant moved for a nonsuit on the ground that the plaintiff had failed to produce the probated

account covering the services sued for, as required by section 29, c. 89, p. 677, Revised Code. The plaintiff admitted that such pro

duction had not been made.

Argued before PENNEWILL, C. J., and RICE, J.

Richard R. Kenney, for plaintiff. Franklin Brockson and Arley B. Magee, for defendant.

PENNEWILL, C. J. (delivering the opinion of the court). The statute seems to be plain upon this question. Section 29 of chap. ter 89 of the Revised Code, at page 677, provides :

"Before an executor, or administrator, shall pay any debt against the deceased, the person holding the same shall make affidavit that nothing has been paid or delivered towards satisfaction of said debt, except what is mentioned, and that the sum demanded is justly and truly due."

Later in the section there is this provision: "If affidavit, as above required, be not produced in an action against an executor, or administrator, for a debt against the deceased, the plaintiff shall, upon motion, be nonsuited; and if such action shall have been brought, without previously exhibiting to the defendant an affidavit in due form, the plaintiff shall not recover any costs,"

etc.

The probated account not having been produced as required by the statute, let a nonsuit be entered.

house, is demurrable, because it is uncertain whether the cause of action is in trespass or in

case.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 107-111; Dec. Dig. § 49.*] Action by Samuel S. Marley against William L. Duff. Demurrer to declaration sustained.

Argued before PENNEWILL, C. J., and BOYCE, J.

Julian C. Walker, for plaintiff. Frank L. Speakman and S. D. Townsend, Jr., for defendant.

Capias case (No. 19, January term, 1911). Slander. Demurrer to declaration.

This is an action of trespass on the case for alleged slander. The declaration contains ten counts. Counsel for the defend

ant pleaded to the first nine counts and filed count, which charged that the "said defenda special demurrer to the tenth, or last ant, heretofore, etc., on, etc., in, etc., falsely and arms, without a warrant, and without and maliciously and unlawfully, with force and procured the said plaintiff to be arrestany reasonable or probable cause, caused ed, near midnight, in his own house," etc. Among the causes of demurrer relied upon, objection was made that "said count is ambiguous and uncertain, in that it is impossible to determine therefrom whether the plaintiff seeks to recover for direct or consequential injuries."

(Superior Court of Delaware. New Castle. May 11, 1911.)

1. FALSE IMPRISONMENT (§ 20*)-PLEADINGALLEGATIONS AS TO DAMAGES.

A declaration in an action for false imprisonment, which charges in one count that defendant falsely, maliciously, unlawfully, and without any probable cause procured the plaintiff to be arrested, and which alleges in another count that defendant falsely, maliciously, and without probable cause informed the police that he had reasonable cause to believe that plaintiff had committed arson, by reason of which plaintiff was arrested without a warrant or probable cause, and that plaintiff was thereby injured and damaged, is good as against a special de

on the day and at the time and place aforesaid, "falsely and maliciously and unlawful

2. ACTION (§ 38*)—Joinder of Causes of Ac

TION.

Where a declaration in an action for false imprisonment alleges in one count that defendant falsely, maliciously, and with force and arms procured the arrest of plaintiff in his own house, and in another count alleges that defendant falsely, maliciously, and without probable cause informed the police that defendant had reasonable cause to believe and believed that plaintiff had committed arson, by reason of which plaintiff was arrested without warrant or probable cause, and that by reason of the premises plaintiff was greatly injured and damaged, the counts are not demurrable, as setting out separate causes of action.

[Ed. Note.-For other cases, see Action, Cent. Dig. § 549; Dec. Dig. § 38.*1

3. PLEADING (§ 8*)-FORM-Matters of FACT OR CONCLUSIONS OF LAW.

Where one of the counts in a declaration for false imprisonment alleges that defendant falsely, maliciously, unlawfully, with force and arms, and without probable cause procured the plaintiff to be arrested, and another alleges that the defendant falsely, etc., informed the police that he believed and had probable cause to believe that plaintiff had committed arson by setting fire to his own house, and so falsely and unlawfully and without a warrant caused the plaintiff to be arrested, they are not insufficient, as stating mere conclusions of law without facts sufficient to support them.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 12-282; Dec. Dig. § 8.*] 4. ACTION (§ 38*)-MISJOINDER OF CAUSES OF

ACTIONS.

A count in a declaration in an action for false imprisonment, which alleges that the defendant at a certain time and place falsely and maliciously spoke and published, of and concerning the plaintiff and the burning of plaintiff's house, certain false and defamatory words, meaning that plaintiff had set his own house on fire and was guilty of arson, a felony, and was fleeing to escape arrest, and meaning to request that an officer be sent to arrest plaintiff on the charge of arson, whereby plaintiff was injured in his good name, arrested without a warrant or probable cause, and otherwise greatly injured and damaged, is bad for misjoinder of separate and distinct causes of action.

[Ed. Note.-For other cases, see Action, Cent. Dig. § 549; Dec. Dig. § 38.*]

Action by Samuel S. Marley against William L. Duff. On demurrer to each of the three counts of the declaration. Demurrer to the first two counts overruled, and demurrer to the third count sustained.

This was an action of trespass for alleged false imprisonment. The declaration contained three counts. Counsel for the defendant demurred specially to each of said counts. The first count charged "that the defendant heretofore, etc., on, etc., in, etc., falsely and maliciously and unlawfully, with force and arms, and without any reasonable or probable cause, caused and procured the said plaintiff to be arrested, near midnight, in his own house," etc. The second count charged that "the said defendant,"

cause, verbally made information to the police department of the city of Wilmington, etc., that he, the said defendant, did on good grounds believe, and that there was probable cause to believe, that the said plaintiff had recently committed the crime of arson and feloniously, willfully and maliciously set fire to a certain dwelling house of the said plaintiff (said dwelling house being adjoining to a certain other dwelling house in which there were at the time some human being or beings), to wit, etc., and that unless the said plaintiff should be arrested forthwith upon such charge, he, the said plaintiff, would escape justice, to wit, etc., and the said defendant, then and there, with force and arms, without a warrant, and without any reasonable or probable cause, upon said charge, falsely and maliciously and unlawfully caused and procured the said plaintiff to be arrested, near midnight, in his own house, in," etc.

The third count charged that "the said defendant," on the day and at the time and place aforesaid, "in a certain discourse or communication which he, the said defendant, then and there had over the telephone, to and with, etc., and of and concerning the fire at the said dwelling house of the said said plaintiff and of and concerning the said plaintiff, etc., falsely, willfully and maliciously spoke and published of and concerning the said plaintiff and of and concerning the said fire at, etc., false, scandalous, malicious and defamatory words following, to wit, etc. (meaning thereby that the said plaintiff had willfully and maliciously set on fire his said dwelling house and was guilty of the crime of arson and felony and was then fleeing from the scene of the said crime to escape arrest, and also meaning thereby to advise and request that a police officer be forthwith sent to arrest the said plaintiff upon the said charge of arson and felony); whereby, by means of the speaking and pub

lishing of said false, etc., words by, etc., as, etc., the said plaintiff hath been and is greatly injured in his good name, etc., and also by reason of the premises the said plaintiff was, with force and arms, arrested, without a warrant, and without any reasonable or probable cause, etc.; and also by means of the premises the said plaintiff hath been, and is otherwise greatly injured and damaged," etc.

Several causes of demurrer were assigned to each of said counts. It was objected that each is ambiguous and uncertain in that it is impossible to determine from anything therein, whether the plaintiff seeks to recover for direct or consequential injuries; that each charges two separate and distinct causes of action; that none is drawn with

sufficient particularity; and that each is insufficient in that mere conclusions of law are stated without sufficient facts to support them.

The declaration contained a single common count for the work, labor, care and diligence of the said plaintiff by him, etc., done, performed and bestowed in and about the

Julian C. Walker, for plaintiff. Frank L. Speakman and S. D. Townsend, Jr., for defendant.

PER CURIAM. [1-4] The first two counts are not open to the objections urged, and the demurrer as to them is overruled. The third count is double and, therefore, bad.

The demurrer to the third count is sustained.

(2 Boyce, 316)

DOUGHERTY v. WHITE. (Supreme Court of Delaware. June 20, 1911.) 1. EVIDENCE (§ 99*)-RELEVANCY.

While evidence, to be admissible, must correspond with the allegations and be confined to the point in issue, it is not necessary that it should bear directly on the issue, but is admissible if it tends to prove the issues, or constitutes a link in the chain of proof, since any circumstance that may afford a fair and reasonable presumption of the fact to be tried is relevant, and to be left to the jury to determine its precise force and effect.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 123, 137-143; Dec. Dig. § 99.*] 2. EVIDENCE (§ 114*)-RELEVANCY.

In an action against decedent's executor to recover the reasonable value of services alleged to have been rendered decedent, certain notes executed by plaintiff to decedent to evidence loans made by decedent to plaintiff during the period for which plaintiff claimed indebtedness for services, and checks executed by decedent to plaintiff as a part of the loan transaction for the money furnished plaintiff, were relevant on the issue whether plaintiff, during such period, was rendering services amounting to more than the value of the loan, for which he expected de

cedent to pay.

[Ed. Note. For other cases, see Evidence, Cent. Dig. 88 125-132; Dec. Dig. § 114.*]

Error to Superior Court, New Castle County.

Action by Henry M. White against Charles B. Dougherty, as executor of Thomas McHugh, deceased. Judgment for plaintiff, and defendant brings error. Reversed. Argued before CURTIS, Ch., PENNEWILL, C. J., and BOYCE, J.

Charles F. Curley, for plaintiff in error. J. Frank Ball, for defendant in error.

BOYCE, J. (delivering the opinion of the court). This was an action of assumpsit, brought by Henry M. White, the plaintiff below, against Charles B. Dougherty, executor of Thomas McHugh, deceased, the defendant below, to recover compensation for personal services alleged to have been rendered by the plaintiff to the said McHugh, in his lifetime.

his lifetime, at his special instance and request, etc.

The pleas were nonassumpsit, payment, statute of limitations and set-off. Replications and issues were entered.

At the trial, counsel for the plaintiff stated his claim as follows:

To work and labor in taking care of,
cooking for, washing for and in act-
ing as a companion and an assistant
to the late Thomas McHugh, from
the 15th day of June, A. D. 1904, to
December 13, A. D. 1906, 911 days,
at one dollar a day....
Less 14 days in October, 1905....

$911 00

14 00 $897 00

Two certain promissory notes for $100 and $65, respectively, made by the plaintiff, payable to the order of the said McHugh, three months after date, and dated the 7th day of December, A. D. 1905, and the 15th day of October, A. D. 1906, respectively, were offered in evidence by the defendant as dec

larations

or admissions of the plaintiff against interest. It was contended that the notes had been given during the period covered by the statement of the claim of the plaintiff, and should be admitted in evidence to aid the jury in determining whether, on the dates and at the time of the delivery of said notes, the plaintiff had any claim accruing or accrued against the said McHugh, It was urged that the notes were noť admissible under the plea of payment, or any plea filed, either in bar of, or as set-off to, the plaintiff's cause of action; and it was insisted that if the notes were admissible at all, they should have been pleaded specially, as, at most, they would only be presumptive evidence, tending to show that there was no liability on the part of the testator to the plaintiff at the time they were given.

The court below, in refusing to admit the notes, said, in part: "The two notes that have been offered in evidence are dated December 7, 1905, and October 15, 1906, made and delivered by the plaintiff to the deceased. The issue in this case is whether the plaintiff performed certain services for Thomas McHugh during the period extending from June, 1904, to December, 1906, the time of his death, for which the estate of the deceased is liable; and the plaintiff relies upon an implied contract. The defendant contends that no services were performed by the plaintiff for which the defendant is bound to pay. These notes are offered, not for the purpose of showing a settlement between the parties-they could not be offered for that purpose, at least in the present stage of the proceedings. The defendant

and checks that the plaintiff borrowed money from the testator at times when according to his present claim, the testator was owing him considerably more?

True it is, the notes and checks represent a separate and distinct transaction from the alleged services for which this suit was brought, and in that sense they are collateral to the issue of fact in this case. But it appears from the notes and checks, that the plaintiff, on the 7th day of December, A. D. 1905, and again, on the 15th day of October, A. D. 1906, gave his two certain notes, the first for $100 and the other for $65, each payable in three months, receiving at the time each note was made, the testator's check for a corresponding amount, when, in the light of the statement of the plaintiff's cause of action, the testator was impliedly, at least, indebted to the plaintiff in a large sum of money which had been accruing since the 15th day of June, A. D. 1904, at the rate of $1 per day. The contention is, the act of the plaintiff in giving his said notes to the testator, at a time when his alleged claim was due and owing, is inconsistent with his present claim, and not made less so from the fact that the collection thereof was postponed until after the death of the testator, and that whether the notes and checks afford evidence of such inconsistency is a question for the jury.

We shall not refer to or review here all the cases cited by counsel for the defendant. The three cases following seem to have a direct bearing upon the question before us.

Where the contention was made that the fact the defendant gave to the plaintiff a judgment note, after the accruing of the cause of action, created a presumption that the claim had been paid, Gilpin, Chief Justice, said: "This is certainly true as a general proposition, and if this fact stood alone, without other circumstances, it would be entitled to great weight; as it would imply a settlement between the parties at that time, and that all claims and demands between them of inferior grade and dignity were included in it, and were extinguished by the security of a higher nature. It raises, however, at best but a presumption, and as all presumptions of this character may be rebutted, it is not necessarily conclusive in this case, # • for this will very properly depend upon the view which the jury may take of other portions of the evidence." Callaway v. Hearn, 1 Houst. 607; Lodge v. Ainscow, 1 Pennewill, 327, 41 Atl. 187.

In an action of assumpsit brought by the plaintiff below, to recover compensation for nearly five years' services, alleged to have been rendered to the defendant below, as an employé in a livery stable, it was held:

"When one claims to have a just demand against a responsible party long overdue, with payment unasked, it is competent to show that during the time in question the claimant was in such stress of pecuniary circumstances that he could ill afford to forego payment of his demand, if he had one, as evidence tending to show that he had none. But in order to give this kind of evidence force it is not enough simply to show that the claimant was poor; it must appear that he needed money to use; for from this arises the inference against him, as he may be poor and yet have no occasion to use money." Stone v. Tupper, 58 Vt. 409, 5 Atl. 387.

In an action to recover from the testator's estate the amount of indebtedness alleged to be due the plaintiff, the defendant had been permitted, subject to exception, to prove that at the time when the plaintiff claimed the deceased, then living and solvent, was indebted to him in a large sum, the plaintiff told a witness that he was unable to pay a note on which the plaintiff was principal and the witness surety, the court said: "The evidence objected to tended to show that the plaintiff was in need of money at a time when, according to his present claim, the deceased, Smith, had in his possession a considerable sum in cash belonging to him. The plaintiff's failure, in this relation, to demand or to attempt to collect his debt of a responsible debtor, is a circumstance which has some logical tendency to discredit his present claim. Failure to make claim when occasion therefor exists has some tendency to prove the invalidity or non-existence of the claim. Such failure to act may constitute 'an admission by conduct' adverse to the present claim." Page v. Hazelton, 74 N. H. 252, 66 Atl. 1049.

If the plaintiff below, in a situation to require money, borrowed from the testator, at different times, as indicated by the notes and checks, when the testator was indebted to him in a much larger sum, and had been for a considerable length of time, as it is made to appear from the plaintiff's statement of his claim, without making a demand for the payment of his claim, or for, at least, so much thereof as would have met his then needs, it is, we think, a circumstance relevant to the issue in this case which was proper to go to the jury for their consideration in connection with the other evidence, in determining the validity or invalidity of the plaintiff's claim.

It is the unanimous opinion of the court that the said notes and checks should have been admitted in evidence under the general issue, and we, therefore, reverse the judgment of the court below. Judgment reversed.