band after the death of the testator, the guage of the statute before the exception, court, page 646, said: "The meaning of the word, 'issue,' in a will, where, as in this case, nothing appears to limit its legal import, was carefully considered in Pearce v. Rickard, 18 R. I. 142, 26 Atl. 38, 19 L. R. A. 472, 49 Am. St. Rep. 755. Following the well-settled current of authority, it was held that the word so used includes all descendants; and as the statute gives to an adopted child the status of a descendant, and all the legal consequences and incidents thereof, the same though he were born in lawful wedlock, there could be no question in such a case as this were it not for the exception of a limited estate." as The court then discussed the question whether the fund was within the exception, and held that it was not, and that as to a legacy, when a legatee dies before the testator, leaving an adopted child, such child answers the description of a lineal descendant, who may take the legacy under a statute which prevents legacies from lapsing when the legatee leaves lineal descendants. In re Truman and Olney for an Opinion are in accord with Hartwell v. Tefft. We are of the opinion that by the main provisions of the statute the right was not given to the adopted child to inherit from the lineal or collateral kindred of the parent by adoption. Appellant's counsel attempt to draw such right from the exceptions. They say in their brief: "All the presumptions that can be drawn from the text of the statute support the interpretation here argued. It is an ancient maxim of the law that the specification of one thing is the exclusion of a different thing. 'Enumeratio unius est exclusio alterius.' It is also a truism that an exception is, before excepted, included in the thing from which it is excepted or, in other words, the lesser is included in the greater. The two exceptions mentioned in the sixth section of the statute in question each relate to inheritance by the adopted child from kindred of the adoptive parents, not from the parents themselves. These express exceptions of the right to inherit, under some circumstances, from the kindred of the parents surely imply that some right to inherit from such kindred was granted by the previous general provision. Also, by the maxim just quoted, the express restrictions on inheriting from relatives of the parent by adoption must be taken as exclusive of any other restrictions by construction or implication on the right to inherit from such kindred." and was therefore excluded by the enumeration in the exception? An exception relates only to that to which it is made, and can exclude nothing which was not contained therein before the exception was made. Bouvier translates the maxim: "Specification of one thing is an exclusion of the rest." This expresses the idea clearly. The "other" which is excluded by the enumeration of the "one" can only be an "other" which was before exception contained in that to which the excep tion was made. In order to have the effect claimed by appellant's counsel, the exception must be such as to justify the implication that the right of inheritance from the kindred of the adopting parent was in the statute before the exception. While the exception may properly be considered in ascertaining the true meaning of the statute, it cannot put into the previous provision something which was not there before. It cannot, ipso facto, create therein a right of inheritance from such kindred. The language of the exception, therefore, is to be considered in connection with the other provisions of the statute in arriving at the true meaning of the whole statute. The statute establishes the relation of parent and child between the adopting parent and the child adopted, gives to the adopted child the right of inheritance, and then by the exceptions forbids the taking, by such child, of property expressly limited to the heirs of the body or bodies of the parents by adoption or property from the lineal or collateral kindred of such parents by right of representation, thus disposing of all the ways by which a child would take property through the utilization of his direct relationship to a parent, leaving him the right of inheritance from the parent by adoption and barring his right to take property expressly limited to the heirs of the body of such parent, or from the lineal or collateral kindred of such parent by right of representation, i. e., by standing in his place. The exception deals with the inheritance of property from lineal or collateral kindred only to [1] A child, though born to the parent in forbid its inheritance through the relation lawful wedlock, takes from such lineal or of the adopted child to the parent by adopcollateral kindred only by right of represen- tion, and the property or lineal or collateral tation, except that a child takes from another kindred is, in no other way, involved. The child of its parent and the descendants of language of the exceptions all seems to be such child directly under the statute of de- directed to inheritance by reason of the relascent. General Laws 1909, c. 316, §§ 1, 2, tion of the adopted child to the parent by as amended by chapter 924, Public Laws, adoption. This is what would naturally be January Session, 1913. Does the forbidding expected from the nature of the proceeding to the adopted child of the only right by provided by the statute. which even a child born to the parent in adoption and the child adopted are the only lawful wedlock would take from the lineal parties to the adoption, and the relation beor collateral kindred of the parent, except tween them established thereby the only refrom those to whom such child stands in lation considered. It is difficult to conceive the relations named, justify an implication that the Legislature, intending to give to the that the right of the adopted child to take adopted child the right of inheritance from directly from a child born to the parent in the descendants and no other kindred of the The parent by it by the language of the statute in question, They cite the statute of this state in that instead of by the use of express words giv-regard (General Laws 1909, ch. 316, § 7), ing such right, as in the Massachusetts stat- which reads as follows: ute, for example, providing that the adopted child "shall stand in regard to the legal descendants, but to no other of the kindred of such parent, in the same position as if so born to him." [2] We are of the opinion that the implication in the statute of the right of the adopted child to inherit directly from the lineal or collateral kindred of the parent by adoption is not justified by the exception in the statute. The same contention was made in the case of Keegan v. Geraghty, 101 Ill. 26, supra. At page 38 of 101 Ill. the court said: "Sec. 7. Bastards shall be capable of inheriting or transmitting inheritance on the part of their mother, in like manner as if they had been lawfully begotten of such mother." They claim that this section has been interpreted by this court in two decisions in a manner that should be conclusive on the question now before this court as to the right of inheritance of an adopted child under the analogous section of the adoption statute. The first of these cases was decided in 1873, and is Briggs v. Greene, 10 R. I. 495. The case was begun by a bill in equity to set aside two conveyances as fraudulent, the complainant claiming as sister and heir at law of the grantor, Susannah. The case was heard on exceptions to the answer and exceptions sustained. On page 497 of 10 R. I. the court said: "The question is, if the said Eliza is entitled to claim as such heir, were the deed declared void? Can she inherit as to the said Susannah? By the common law, illegitimate children could not take by descent, because in contemplation of law they had no inheritable blood, and, for the same reason, an inheritance could not be transmitted from them collaterally. In contemplation of law, a bastard had no kindred except his lineal descendants, proceeding from him as from a new stock. He was, as the expression of the common law is, nullius filius, was of no family. He had no father, no mother, and so no kindred. His mother who bore him was not of his kindred, though her blood ran in his veins. By the common law the inheritance passed to the next of kin of the intestate, to be ascertained according to the rules of the canon law. But he had no kindred by those rules, and could be next of kin to nobody. "It is contended that the last clause of the fifth section of our statute of adoption, by excluding the right of an adopted child to take from the lineal or collateral kindred of the adopting parents, by right of representation, impliedly says such child can directly inherit, in his own right, from the lineal or collateral kindred of the adopting parents, and that petitioner's claim of inheritance here is to inherit directly in her own right. We rather deduce the contrary inference from this language that it is more in denial than in allowance of inheriting directly from the kindred of the adopting parents. This clause is introduced by way of exception from what had before been granted, the right of inheritance; and, as by our interpretation the right so given is to inherit from the adopted parents only, the exception is to the right of inheriting from or through the adopting parents, the provision being, in meaning, that the adopted child shall not be deemed so much a child of the adopted parents that he can, as their representative, inherit from their kindred, lineal or collateral. If, then, as being the adopted child, such child be not permitted to represent and stand in the place of the adoptive parent, and take by representa"Our statute of descents provides that the tion from the kindred of such parent, it would estate of an intestate shall descend and pass in seem that much more he should not take di- equal proportions to his kindred in the following rectly from such kindred. This whole excepting course: First. To his children or their declause at the close of the fifth section is pointed scendants, if any there be. If there be none, to inheriting from or through the adoptive par- then, secondly, to the father. If there be no ents, the first branch of it being that the adopt- father, then, thirdly, to the mother, brothers, ed child shall not take property expressly lim- and sisters, and their descendants, or such of ited to the body or bodies of the parents by them as there be. These degrees of kindred adoption, and the second that he shall not take differ from the course prescribed by the canon property from the lineal or collateral kindred or common law, and from the rules of the civil of such parents by right of representation. The law. Still the inheritance passes only to kinlanguage is all restrictive of inheriting from or dred in either case. As the bastard had no through the adoptive parents, and an adopted blood which could give him kindred in any dechild being made, 'to all legal intents and pur- gree as ascertained by the common law or by poses, the child' of the adopting parent, there the statute, he was equally incapable of inwould seem to be the more reason that, as rep- heriting by any of those rules. Neither was resenting and standing in the place of the adop-he capable of transmitting inheritance; kintive parent, he should take by right of representation from such parent's kindred than that he should take directly from such kindred; and any implication there may be from the prohibition to take by right of representation should rather be against than in favor of the right to take directly. The language in question is all negative, restrictive of the right of inheriting, and it cannot be construed as giving any right of inheriting." As is indicated by the language of the opinion the Illinois statute under consideration was very similar to our statute. Appellant's counsel further argue in support of their contention, from the analogy of the legitimation of bastard children, whether by general laws or by special act of dred only were capable of transmitting it. This he wanted, and for want of it the current of descent was obstructed and stopped on reaching him, and there was none to flow from him to carry the inheritance. It could not be made to flow until the blood in his veins was made capable of giving him kindred. To remove the disability, and to enable him to inherit and to transmit inheritance collaterally, which he could do lineally to his descendants, the only kin which he had, the seventh section of the statute provides in these words: 'Bastards shall be capable of inheriting or transmitting inheritance, on the part of their mother, in like manner as if they had been lawfully begotten of such mother.' They shall inherit as the same mother's legitimate children might. The illegitimate are put upon the same footing as the legitimate for the purpose of inheritance, and for this purpose are dred as her legitimate children have, and when those born in lawful wedlock take by descent according to degrees prescribed by the statute, the others take also. The kindred of both is to be traced by the same blood, the blood of the mother, which is now by the statute theirs also. A bastard still can inherit only as he has the blood of his mother. His kindred kinship can be traced only by it. He has no other blood, none of the father. Had the words, 'on the part of their mother,' been omitted from this section, the construction must still be the same, for he has no kindred except on the part of the mother. The whole course of descent to and from him is thus on her part." And again, page 499 of 10 R. I.: "It is claimed that the plaintiff in this case cannot take by descent from the intestate, because they are not sisters, and the descent is not through the mother, but is direct from sister to sister. The act does not expressly declare them to be sisters, but does it not impliedly? Were we to ask for the definition of sisters, the answer would be but the statement of the relation in which these two persons are, by this act, made to stand to the mother, illegitimate daughters of the same mother.. Such can be no other than sisters. They are so held by the Supreme Court of Vermont, under a similar statute of that state. The Supreme Court of Virginia, in Garland v. Harrison, 35 Va. 368, have also held upon the same language, in the statute of descents of that state, that they are sisters, overruling the case of Stevenson's Heirs v. Sullivant, 5 Wheat. 207, 5 L. Ed. 70, cited by the respondent, which was decided by the Supreme Court of the United States upon the same words in the same statute, in which they hold that bastards do not stand' related as brother and sister, and could not inherit to each other. "By section 5 it is provided, that 'the descendants of any person deceased shall inherit the estate which such person would have inherited, had such person survived the intestate.' Were the objection to prevail that the plaintiff in this case is not the sister of the intestate and could not inherit as such, still she would be entitled to take the estate which her mother would have taken had she survived the intestate. Were there no sister, the mother would have taken the whole estate of the intestate, and upon the mother's death it must have descended upon this daughter, the plaintiff, who is expressly made capable of inheriting as the legitimate descendant of such mother might." Speaking of the intent of the statute, the court said: "It had provided a course of descent extending through all the kindred of the intestate to the last survivor of those in whose veins ran his blood; and, in view of the fact that the relative of a child born out of lawful wedlock, though it were a relative by blood, was not a legitimate relative, and so was an obstruction to the course of descent, provided that relative was incapable of transmitting the estate, the intent was to remove this obstruction by making such children capable, thereby making the course of descent, while imperfect, so far as the mother's blood created the relationship, such as to make them, for the purposes of this act, legitimate children of their mother, capable like all other children of receiving and transmitting an inheritance." "In 1884 John Aldred died seised in fee simple of the land in suit, having acquired it by purchase. He left a will giving all his property to his widow, 'to be and remain to her during her life, or so much of the same as she may need for her support during that time.' The widow died before this suit, but, before she died, gave a quitclaim deed of all her right, title, and interest in the land to Mary Ann Brown, upon condition that she and her husband should support the grantor during her life. The condition was fulfilled. John Aldred died without leaving any issue or either of his parents surviving him. He was one of six children born of his father and mother, to wit, four brothers, two of whom are dead, leaving descendants, one sister, being the Mary Ann Brown aforesaid, and himself. His mother, before she married, had had an illegitimate daughter, to wit, Elizabeth Grundy, now dead. The action is brought by her descendants and heirs at law against the two living brothers, against the descendants and heirs at law of the two dead brothers, and against the said Mary Ann Brown and her husband." The court below gave judgment for the plaintiff. The court said (page 580 of 16 R. I., page 186 of 18 Atl.): "The first exception is, because the court below refused to rule that the plaintiffs, as descendants of the illegitimate daughter of John Aldred's mother, are incapable of inheriting from John Aldred and cannot recover." The court then cited Pub. Stat. R. I. cap. 187, § 7, quoted supra, and Briggs v. Greene, 10 R. I. 495, supra, construing said statute, and holding that under it bastard children of the same mother inherit from each other as if they were legitimate. The court says (page 580 of 16 R. I., page 186 of 18 Atl.): estate which Elizabeth Grundy would be enti"The plaintiffs are entitled to the share of the tled to if living. Pub. Stat. R. I. cap. 187, § 5. And, pursuant to said construction, Elizabeth Grundy, if living, would be entitled the same as if she were John Aldred's legitimate half-sister on his mother's side. Our statutes make no distinction between brothers and sisters of the half and the full blood in respect of inheritance from each other, unless the estate is ancestral. It folof the estate, for Elizabeth Grundy, if living, lows that the plaintiffs are entitled to one-sixth would inherit from John Aldred directly, like his legitimate brothers and sisters, under Pub. Stat. R. I. cap. 187, § 1, third clause, and not indirectly through her mother any more than they. Smith v. Smith, 4 R. I. 1." In our opinion the appellant gets no assistance from these cases. The statute therein construed never involved the difficulty inherent in the adoption statute, i. e., that of making relationship in fact where none had existed before. In the case of a bastard he had the blood of his mother, and when he was given by statute the right of inheritance on the part of his mother, as the court in Briggs v. Greene, supra, page 498 of 10 R. I., said: ing as the legitimate for the purpose of in"The illegitimate are put upon the same footheritance, and for this purpose are legitimate. They have then all the same kindred as her legitimate children have, and when those born in The second case, decided in 1899, is Grundy degrees prescribed by the statute, the others take lawful wedlock take by descent according to the v. Hadfield, 16 R. I. 579, 18 Atl. 186. This also. The kindred of both is to be traced by the was an action of trespass and ejectment to same blood, the blood of the mother, which is recover an undivided part of real estate. now by the statute theirs also. A bastard still can inherit only as he has the blood of his mothThe case presented by the bill of exceptions er. His kindred kinship can be traced only by is stated by the court as follows: it. He has no other blood, none of the father. Had the words, 'on the part of the mother,' been omitted from this section, the construction must still be the same, for he has no kindred except on the part of his mother." Action by the Newark Garage & Electric Company against Thomas R. Claringbold. Verdict for plaintiff. Argued before BOYCE and RICE, JJ. Robert H. Richards and Aaron Finger, both of Wilmington, for appellant. Levin Irving Handy, of Wilmington, for respondent. The last sentence, quoted above, may well be noted in connection with the argument in appellant's brief that it is logically necessary to insert in the adoption statute the words "for the purpose of inheritance by such child Action of assumpsit by Newark Garage & from the parents by adoption" in order to ar- Electric Company against Thomas R. Clarrive at the construction claimed by the ap-ingbold, to recover the sum of one hundred pellees. The words seem to us no more nec- and eighty-five dollars and eighteen cents, essary in the adoption statute to limit the with interest, for work and labor done and adopted child to inheritance from the parents materials and supplies furnished. Verdict by adoption than the words "on the part of for plaintiff. the mother" in the bastardy statute to limit the bastard to inheritance through the blood of his mother. We are of the opinion that under the adoption statute no right of inheritance from a child of the adopting parent born to him in lawful wedlock is given to the adopted child. Therefore, the decision of the superior court sustaining the appeal was erroneous. The appellees' exception is sustained, and the case is remitted to the superior court, with direction to affirm the decree of the municipal court from which the appeal was taken. (6 Boyce, 129) The facts appear in the charge of the court. The plaintiff corporation which conducts a CLARINGBOLD v. NEWARK GARAGE & garage at Newark, this county, claims that ELECTRIC CO. (Superior Court of Delaware. Nov. 18, 1915.) 1. WORK AND LABOR 11-MATERIALS. the defendant on or about September first, New Castle. 1913, engaged it to make repairs to and furnish materials for a certain automobile. That while the repairs were being made on this automobile, the defendant, from time to time, suggested and requested that plaintiff's workmen, engaged in the work, do certain things in connection with the repairs, and also, from time to time, had plaintiff furnish sup Where a person is employed to furnish work, labor, and materials for another, the person so employed is entitled to recover the stipulated price, or, if there is no agreement as to price, then such sum as they are reasonably worth. [Ed. Note. For other cases, see Work and La-plies for, and make repairs to his other aubor, Cent. Dig. § 26; Dec. Dig. 11.] 2. SET-OFF AND COUNTERCLAIM 6 COUPMENT. If a person performing work and labor for another damages the other's property, the latter may recoup his damages when sued for the work, if the claim for recoupment is a cause of action maintainable in a separate suit, but cannot recover for any balance or excess. [Ed. Note. For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 6, 7; Dec. Dig. 6.] 3. EVIDENCE 96(2)-RECOUPMENT BURDEN OF PROOF. A defendant setting up a claim for recoupment assumes the burden of proof in respect to it. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 120; Dec. Dig. 96(2).] 4. BAILMENT 14(1)-CARE OF PROPERTY. A person engaged in a given business or occupation impliedly holds himself out to possess ordinary skill therein; and, if injury occurs to property intrusted to him, while in his exclusive Fossession, it is his duty to repair and make good such damage. [Ed. Note.-For other cases, see Bailment, Cent. Dig. 88 45-48, 52-55; Dec. Dig. 14 (1).] tomobile. The plaintiff claims that there was no agreement between the parties as to the amount to be paid for the repairs. The defendant contends that he entered into an oral contract with the plaintiff, through its manager. And under the terms of the contract the plaintiff engaged with the defendant to make the repairs to his automobile for twenty-five dollars or thirty dollars, not more than thirty dollars, and warranted for that amount to put the car in "first-class shape." The defendant claims that while the repairs were being made under the alleged contract, the plaintiff's workmen negligently broke a certain part of the car, which caused an additional amount of work to be done in repairing this damaged part, for which the defendant was not responsible. The defendant also claims that the plaintiff did not deliver the car to him in "first-class shape" as it had agreed to do under the contract, and contends that the automobile when turned over to him was not in good running order and of little value. The defense briefly stat-, by reason of lack of ordinary skill on the ed is that in making the repairs the plaintiff part of the plaintiff's workmen, in matters injured, more than it benefited the car, and concerning which the plaintiff expressly or therefore it is not entitled to recover any-impliedly held itself out as having ordinary thing in this action. We say to you that under the evidence you should find a verdict, for the plaintiff, for the amount appearing in the book of original entry of those items, independent of the alleged contract for repairs, for which the defendant admitted he owed the plaintiff. We will now dismiss from general consideration, the items last referred to, in our statement of the law to you. skill, or if you should believe that the car was damaged by the carelessness or negligence of the plaintiff's workmen in repairing the car, you should deduct the amount of such damages if any, from any sum the plaintiff would otherwise be entitled for repairs done and materials furnished. But on the other hand if you should find that the car was damaged while in the possession of the plaintiff, and further find that such damages were the result of a natural weakness, or due to the worn condition of the part or parts damaged, then under such circumstances the plaintiff would not be respon [1] "When one person is employed by another to perform work and labor and furnish materials for him upon an agreed price, the person so employed is entitled to recover the stipulated price for the work done and mate-sible for the damages. rials furnished, if the work done and materials furnished are in accordance with the agreement. But if there is no agreement as to price for the work and materials, then the employé is entitled to recover for the same such sum as they are reasonably worth. they are worth nothing then there can be no recovery. If [2] "But if a person performs work and labor for another, and in its performance damages the other party to an amount as great as the performer claims for his services, there can be no recovery. In such case the defendant is allowed to recoup his damages so as to avoid the trouble and expense of another action. [3] "But the claim or damage to be recouped must be a valid cause of action for which a separate suit could be maintained. • Whenever the defendant is permitted to submit his claim for damages, as a subject of recoupment he assumes the burden of proof in respect to it, and no recovery can be had for any balance or excess." Heite v. Cowgill (1914) 91 Atl. 652. If you should believe that there was a contract between the parties, as claimed by the defendant, whereby the plaintiff agreed to put the automobile in question in first class condition, and to re-deliver the same to the defendant, for a sum not exceeding thirty dollars, then the plaintiff cannot recover for any labor done or materials furnished upon the automobile, or for repairs to the same, unless you should believe that the repairs done and materials furnished were of some advantage or benefit to the defendant, in which case it would be entitled to recover what they were reasonably worth. If you believe the plaintiff entitled to any amount for work done and materials furnished, in addition to the amount of the items previously referred to and concerning which we stated to you that it was your duty to find for the plaintiff, your verdict should be in favor of the plaintiff for such sum as the work done and materials furnished were reasonably worth, provided you do not believe that in the performance of the work. and the furnishing of the materials, the plaintiff carelessly and negligently injured the defendant's automobile. If you should be If you believe from the evidence in this case that the plaintiff, in furnishing the labor and materials for the defendant's automo-lieve that the defendant's automobile was so bile, by its negligence damaged the car to any extent, you should doduct from the sum the plaintiff would be entitled to recover for such labor and materials, the amount of such damages. injured you should deduct from the sum that (6 Boyce, 133) [4] It is a rule of law that a person engaged in a given business or occupation impliedly holds himself out to possess ordinary skill therein; and if injury occurs to property intrusted to him, while in his exclusive (Court of General Sessions of Delaware. New possession, it is his duty to repair and make good such damage, and under such circumstances he cannot look to the owner of the property for reimbursement for the expenses thus incurred, unless he affirmatively proves that he was not at fault. If you should believe from the evidence that the defendant's car was damaged, while in the exclusive possession of the plaintiff, STATE v. BURRIS. Castle. Nov. 10, 1915, and April 1. STATUTES 19-ENACTMENT ENROLLED ACT-CONSTITUTIONAL PROVISIONS. Act Gen. Assem. March 31, 1903 (22 Del. Laws, c. 273, §§ 1-7; Rev. Code 1915, §§ 10201027), relating to the powers and duties of the levy commissioners of New Castle county, as "Senate Amendment to House Bill No. 96 was to which the House Journal showed an entry, concurred in and ordered that the Senate be in |