[4] We cannot, therefore, say, as matter of law, that by the exercise of proper care the deceased could have heard the train if he had listened. Whether he could or not was likewise a question for the jury. The case then is narrowed to a single point, viz.: Whether the court can say, as a matter of law, that the deceased could by the exercise of due care and caution have discovered the crossing in time to avoid the accident by stopping his car or reducing its speed. We may say here that the cases cited by counsel are of but little assistance to the court, because in none of them are those features present which distinguish this case. In the cases cited by the appellant the driver was either familiar with the crossing, or it was plainly visible for a considerable distance. He knew the location of the crossing in time to avoid accident by exercising propThere is one case where the driver could not see the crossing, but it was on account of darkness. He was traveling at night. er care. the right of way of a railroad company, but in this day a telegraph or telephone line is as frequently seen along the public highway, and it does not, therefore, necessarily indicate the presence of a railroad. [5] We cannot assume that the deceased would have seen the track or the train in time to avoid the accident if the automobile had been running at a lower speed than ten The speed at which it was miles an hour. running may have been excessive under the circumstances, but it does not follow that that was the cause of the collision. Manifestly the court cannot declare, as a matter of law, that because he was running his automobile at ten miles an hour the deceased was guilty of negligence that contributed proximately to his death. [6-8] If the track could not be seen till the driver was within seventeen feet of the rail, then the front of the automobile was within ten feet or less of the side of the car which extended beyond the rail. Under the conditions then existing it is doubtful, at least, that an automobile running at five miles an In the cases cited by the appellee the driv-hour could have been stopped in time. But er was either unfamiliar with the crossing, or could not see it until too close to avoid col lision. whether it could or not was a question for the jury to determine under all the evidence. And in this connection another principle of But there was no case cited like the pres-law should be considered, viz.: "Where a traveler, without any fault on his ent one, where the driver of the automobile part, is suddenly placed in a position of imwas unfamiliar with the road, and the cross-minent peril at a crossing, the law will not hold ing was very difficult to see, but the driver him guilty of contributory negligence if he does nevertheless had notice that there was a bad not select the wisest course, or do the safest crossing on the road about four hundred thing; all that is required of him in such an emergency is that he act with due care under yards ahead. That is the particular feature the circumstances, it being for the jury to dethat distinguishes this case from those cited termine whether such an emergency existed, and whether the traveler acted with due care." on either side. his car and by so doing avoid the accident, the court would be required to decide, as a matter of law, whether he was guilty of contributory negligence that proximately contributed to the accident, in not stopping his car. This question was fully argued by counsel on both sides of the case. If the testimony clearly showed that the Assuming that it is the duty of the driver of an automobile to stop his car before cross-deceased, not being able to see or hear the ing the tracks of a railroad company when approaching train on account of obstructions both looking and listening are unavailing, and noise, saw the crossing in time to stop the question would still remain in this case where would he stop? From the information he received from Roberts the deceased knew there was a crossing on one side or the other of a brickyard which was plainly visible, but the crossing might be anywhere within a On distance of two hundred yards or more. one side or the other of a certain object, is very indefinite as to exact location. With the knowledge he had, was the deceased required to stop his car every few yards, if required to stop at all? That would probably have been necessary to avoid the accident because the crossing could not be seen at a distance greater than seventeen feet. But the deceased was not told that the railroad was very difficult to see, or that it could not be seen more than five or six yards away. It is true the cut was visible three hundred and fifty yards away, but the deceased was not informed, and did not have to assume that the railroad was in the cut. It is also true that the telegraph line was But the testimony does not establish such facts; on the contrary some of the testimony shows that the crossing could not be seen in time to avoid the accident by stopping the car. Some courts, both state and federal, have declared that if, because of obstructions looking is unavailing, and because of noise made by the automobile listening is also unavailing, it is the duty of the driver to stop his car before driving upon the tracks at a railroad crossing if he can do it by the exercise of due care, and by so doing avoid And a distinction respecting the accident. this duty has been made between automobiles and other vehicles. In the case of New York Central & Hud 21, 93 C. C. A. 413, 21 L. R. A. (N. S.) 794, the and in the exercise of due care, have stopped court said: "With the coming into use of the automobile, new questions as to reciprocal rights and duties of the public and that vehicle have and will continue to arise. At no place are those relations more important than at the grade crossings of railroads. The main consideration hitherto with reference to such crossings has been the danger to those crossing. A ponderous, swiftly moving locomotive, followed by a heavy train, is subjected to slight danger by a crossing foot passenger, or a span of horses and a vehicle; but, when the passing vehicle is a ponderous steel structure, it threatens, not only the safety of its own occupants, but also those on the colliding train. Such being the case, the law, both from the standpoint of his own safety and the menace his machine is to the safety of others, should, in meeting these new conditions, rigidly hold the automobile driver to such reasonable care and precaution as to go to his own safety and that of the traveling public. If the law demands such care, and those crossing make such care, and not chance, their protection, the possibilities of automobile crossing accidents will be minimized. * * "The duty of an automobile driver approaching tracks where there is restricted vision to stop, look, and listen, and to do so at a time and place where stopping and where looking and where listening will be effective, is a positive duty." Elliott on Railroads, volume 3, section 1167, states the general rule as follows: "Ordinary care often requires that the traveler should stop, look and listen for moving trains, from a place where danger can be discerned and precaution taken to avert it. If, for instance, the noise is so great that an approaching train cannot be heard. and the obstructions are such that it cannot be seen, then the traveler must come to a halt and look and listen. It cannot be said that one who simply looks and listens where he knows, or should know, such acts are fruitless and unavailing, exercises that degree of care which the law requires. While it cannot be justly affirmed, as we believe, as matter of law, that there is a duty to stop in all cases, yet there are cases where the failure to stop must be deemed such a breach of duty as will defeat a recovery by the plaintiff." it in time to avoid the accident. That, as we have before said, was necessarily a question for the jury to determine under proper instructions from the court, and not for the court to decide as a matter of law. It was one of the controverted facts or inferences in the case, and was properly submitted to the Jury by the trial court in a charge which clearly explained the respective contentions of the parties and the law applicable to the facts. It is only in clear cases where the facts are undisputed and but one reasonable inference can be drawn from them that courts can declare as a matter of law a party guilty of contributory negligence. In Delaware, a contract cannot be enforced by a party who has failed to obtain a license to do business or carry on an occupation, as required by the statute of the state, if such defense is pleaded. [Ed. Note. For other cases, see Licenses, Cent. Dig. §§ 76-78; Dec. Dig. 39.] Assumpsit by George S. Allmon against Crooks & Co., Incorporated, for the use of John T. McWharter. From the judgment of a justice of the peace, overruling plaintiff's demurrer to defendant's special plea, plaintiff appeals. Demurrer overruled. Argued before CONRAD and HEISEL, JJ. Robert G. Harman, of Wilmington, for appellant. Walter J. Willis, of Wilmington, for respondent. Appeal by George S. Allmon from a judg ment rendered against him by a justice of the peace in favor of Crooks & Co., Incorporated, for the use of John T. McWharter. The plaintiff below declared in assumpsit on a special contract and also on the common counts. The defendant below filed the usual pleas, and a special plea, the substance of which was that: "The rule is now firmly established in this state, as it is elsewhere," says Chief Justice Alvey, in Railroad Co. v. Hogeland, 66 Md. 149, 161, 7 Atl. 105, 107 (59 Am. Rep. 159), "that it is negligence per se for any person to attempt to cross tracks of a railroad without first looking and listening for approaching trains; and if the track in both directions is not fully in view in the immediate approach to the point of intersection of the roads, due care would require that the party wishing to cross the rail-tract road track should stop, look, and listen, before attempting to cross. Especially is this required where a party is approaching such crossing in a vehicle, the noise from which may prevent the approach of a train being heard. And if a party neglect these necessary precautions, and receives injury by collision with a passing train, which might have been seen if he had looked, or heard if he had listened, he will be presumed to have contributed, by his own negligence, to the occurrence of the accident." with the plaintiff below, in the month, "At the time of the making of the alleged conwork was done by the plaintiff below, and at and during the time the alleged the said plaintiff below was engaged in the busiDelaware, and in the production, manufacture or ness of plumbing in the city of Wilmington, in the trade and business of plumbing, and had furnishing of goods, wares and merchandise used not applied for, paid for or received a state license from the state of Delaware the carrying on of its business as plumber or plumbing, as * it was required so to do by virtue of the laws of the state of Delaware. • for [9] While the rule expressed by these authorities has been followed in very many modern cases, it cannot be applied in the case The plaintiff below filed a general demurrer before the court, because the question here to the special plea, relying upon Model Heatis not whether the deceased should have ing Co. v. Magarity, 2 Boyce, 459, 81 Atl. 394, stopped his car before the collision, but L. R. A. 1915B, 665; Strout & Co. v. Howell, whether he could under the circumstances 4 Boyce, 31, 85 Atl. 666; In re Bunch Co. (D. C.) 180 Fed. 527; 25 Cyc. 633; 1 Elliott | der the bond accrues on the day of such payon Contr. § 267; Auson on Cont. 226; Larned ment. v. Anderson, 106 Mass. 436, 8 Am. Rep. 346; Actions, Cent. Dig. § 309; Dec. Dig. 56(3).] Aiken v. Blaisdell, 41 Vt. 655. In support of the plea, counsel for defendant below relied upon Adams' Adm'r v. Stewart, 5 Har. 144; Reeder v. Jones, 6 Pennewill, 66, 65 Atl. 571; Strout Co. v. Howell, supra; Model Heating Co. v. Magarity, supra; Cook v. Pierce, 2 Houst. 499; Gregory v. Bailey, 4 Har. 256; 25 Cyc. 633. Demurrer overruled. CONRAD, J. (delivering the opinion of the court). The defendant's plea in this case alleges that plaintiff is not entitled to recover because, at the time of performing the services and furnishing the materials for which the suit is brought, the plaintiff had failed to obtain a license for carrying on the business or occupation of a plumber, as provided by the statute of this state. To this plea the plaintiff demurs. The court is clearly of opinion that the case of Strout v. Howell, 4 Boyce, 31, 85 Atl. 666, decided by the Supreme Court of this state in 1913, conclusively settles the law in the pending case. The Model Heating Company Case turned upon another principle and can readily be reconciled with the Strout-Howell Case. We are fully satisfied, and so decide, that in Delaware a contract cannot be enforced by a party who has failed to obtain a license to do business, or carry on an occupation as provided by the statute of the state, if that defense is pleaded. The demurrer is overruled. [Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. § 524; Dec. Dig. 182.] 2. LIMITATION OF ACTIONS 28(2)-ACTIONS BY SURETY AGAINST PRINCIPAL. In an action by the surety company against the principal in an employé's bond of indemnity, the liability not being on the bond, but on the implied contract, the statute of limitations goyerning actions of assumpsit, and not that touching bonds, applies. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 135, 142; Dec. Dig. 28(2); Indemnity, Cent. Dig. § 40.] [Ed. Note.-For other cases, see Limitation of Action of assumpsit by the United States Fidelity & Guarantee Company, Incorporated, against Elma E. Gray and others, administrators of Thomas J. Gray, deceased, for money paid by the plaintiff indemnitor for the deceased. The case was submitted to the court on an agreed statement of facts, the defendants relying upon the act of limitations pleaded. The facts and questions of law are stated in the opinions. Judgment for plaintiff. Argued before PENNEWILL, C. J., and CONRAD, J. Woodburn Martin, of Georgetown, for appellant. Daniel J. Layton, Jr., of Georgetown, for respondents. CONRAD, J. (delivering the opinion of the court). The facts in this case as disclosed by the case stated are as follows: On June 8, 1909, Thomas J. Gray gave a bond, with the United States Fidelity & Surety Company as surety, to the Philadelphia, Baltimore & Washington Railroad Company, conditioned for the faithful performance of his duties as station agent of said railroad company. Gray died on October 11, 1911. The railroad company made an audit of his accounts after his death, and on May twentythird, 1913, ascertained and reported to the surety company that Gray owed the railroad company forty-two dollars and twenty-one cents, and demanded payment of the same. On March second, 1914, the surety company paid the said sum of forty-two dollars and twenty-one cents to the railroad company. On April twenty-third, 1914, counsel for the surety company notified the administrators of Gray that the company had paid the amount and requested reimbursement from the Gray estate. This not having been done, suit was brought on August tenth, 1914, against Gray's administrators, before a justice of the peace, and the case is now before this court on an appeal from the justice. Plaintiff below contends that as between Gray and the surety company there was an implied contract on the part of Gray to indemnify the surety company for the sum of forty-two dollars and twenty-one cents, being the amount paid to the railroad company under the bond, so the action before the justice was brought in assumpsit for money had and received. Defendants below rely, in defense, upon the act of limitations, claiming that the surety company was not legally bound under the surety bond that was given, to pay the amount which was paid by the surety company to the railroad company, because payment under the bond could not be enforced at law as under the statutes of this state more than two years had elapsed after the cause | counts of forty-two dollars and twenty-one of action had accrued and before the action cents, and notice was at once given of the dewas brought. That the payment so made, ficiency to the surety company, to whom the came under the law of principal and surety, and the payment being made without warrant of law, it was a voluntary payment on the part of the surety company, and cannot be recovered from the principal. The Delaware statutes limit the time in which an action can be brought on a bond, for faithful discharge of service, to two years from the time of the accruing of the cause of action, and further specifies that no proceeding shall be taken on such bonds on any cause of action accruing six years after the date of the bond. When did the cause of action accrue in the case before us? In Jones v. Wootten, 1 Har. 79, the court says: "In construing statutes the following rules may be considered as well established by judicial decisions, and fully entitled to respect. If a court can give a construction to a statute, consistent with the fundamental principles of justice and reason, it is their duty to do 80. "A court is not to presume that the legislature designed to take away a vested right, nor ought their act to be so construed." And in another Delaware case, Layton v. State, 4 Har. 11, Chief Justice Johns says: "This bond is a contract. The obligation is that which the contract binds the party to do. The obligation of a contract is one thing, the remedy another, the one cannot be touched, the other may be limited. But the remedy cannot be taken away before it accrues, without violating the obligation. For without some remedy, some power to enforce the contract, there is no obligation." And Rogers, J., in the same case, 4 Har. at page 34, very forcibly lays down the law regarding limitations of actions as follows: "The great object of all statutes of limitations is to prevent the litigation of stale demands. Their provisions are founded in public policy, and their operation is upon the laches of the party entitled. They are upon the remedy alone. Such being their aim and scope it is indispensable, under the great principles of common right, that a perfect right of action should exist, before a forfeiture, arising from default can begin to attach. "A remedy for legal injury must be provided for by fundamental law. It is one of the first principles of every social compact, and is expressly secured by the Constitution. Legislative powers may limit and restrain but cannot take it away without infringing upon those essential and inalienable rights, which are placed beyond its control. In accordance with these principles, it has been uniformly decided, that acts of limitation do not begin to act upon the remedy until the right, under the general rules of law, has been fully consummated. Verbal or literal construction has very seldom prevailed in the interpretation of the acts of limitation. The courts almost invariably look only to their spirit and policy." In the case before us Gray had been in the employ of the railroad company for many years. His death occurred on October 11, 1911. The company proceeded to ascertain | the state of his accounts by making an audit of the same, and by the audit it was disclos railroad company looked as Gray's surety. This notice to the surety company was given May twenty-third, 1913. It was not until the latter date that the railroad company reported a shortage in the Gray accounts and called upon the surety company to make it good under the bond that had been given. On March second, 1914, the surety company paid the amount ($42.21) to the railroad company. [1-3] The surety company having paid the railroad company the amount claimed under the bond, the principal or indemnitee in the bond Thomas J. Gray became liable to the surety company for said amount so paid to the railroad company. And this liability of Gray is not founded on the bond but is based upon an implied contract on the principal or indemnitee in the bond to indemnify or save harmless the surety from the amount paid by it under the bond. The statute of limitations touching bonds does not apply to the case before us. The court is clear that the cause of action in the case now before us accrued on March second, 1914, the date when the surety company paid the forty-two dollars and twentyone cents to the railroad company, and that the provisions of our statutes which limit to three years the time in which an action of assumpsit can be brought, applies to the case at bar. Judgment is therefore ordered in favor of the United States Fidelity & Guarantee Company, the plaintiff below, appellant, and against Elma E. Gray, Martha I. Rankin and Robert R. Layton, administrators of Thomas J. Gray, deceased, the defendants below, respondents, for the sum of forty-two dollars and twenty-one cents with interest from the second day of March, A. D. 1914, besides costs of suit. PENNEWILL, C. J. (concurring). I agree with Judge CONRAD in his decision, but base my conclusion on somewhat different reasoning. The bond given in this case to the railroad company is, in a sense, a principal and surety bond, but it is more correctly described as a bond of indemnity. The surety did not agree to pay any certain sum of money, or perform some particular act, but its obligation was to secure to the obligee the faithful performance by the principal of his duties as agent of said company. In effect it was to indemnify the company against any, loss it might sustain from the failure of the agent to faithfully perform his duty. Even though the statute of limitations was a bar to an action by the railroad company against the obligees, or either of them, at the time the surety company paid the money to the railroad company, it could not be a demnitor, against the estate of Gray to re- 12. INDICTMENT AND INFORMATION 110(3)— cover the money paid for his default. STATUTORY OFFENSE IN LANGUAGE OF STATUTE. In such case the cause of action could not accrue until the money was paid by the indemnitor, certainly not until notice and demand. A cause of action cannot accrue be fore there is a right and power to enter suit, and the indemnitor could not enter suit until it knew what the loss was. But the question remains, can the surety company recover in this action if neither it nor the estate of Gray could have been compelled to pay in case suit had been brought on the bond and the statute of limitations pleaded? Under the law of this state an executor or administrator is not compelled to plead the statute of limitations "against an unquestionably just and honest debt." Chambers v. Fennemore, 4 Har. 368. In that case Judge Harrington said: "It is in the discretion of an administrator to use this defense only when the purposes of justice and fair protection of the estate require the statute to be pleaded. * There is nothing, therefore, in our present limitation laws that requires an administrator to set up the statute in bar of a claim which he knows to be just." In analogy to that principle of law, it seems to me that an indemnitor is not bound to plead the statute to an action on such a bond as was given in the present case, if he believes the claim or demand is just. While the court gave no reason for the decision referred to, it is reasonable to believe it was based upon the thought that the debtor, if living, would not plead the statute against an action brought for an undisputed debt; and that which he would probably not do if living the law does not require his representative to do after his death. My conclusion, therefore, is that the present action was not only not barred by the statute, but that the plaintiff may recover the amount sued for even though the railroad company could not have collected it by a suit on the bond if the statute of limitations had been pleaded. The surety company was not compelled to plead the statute, and we cannot assume that Gray or his executor would have pleaded it against the railroad company's claim in an action on the bond. (6 Boyce, 166) STATE v. BURRIS. An information charging with causing or atclose the polls between 1 and 7 o'clock by "ditempting to cause primary election officers to recting, commanding, counseling and advising" them to close same, charges an offense under Const. art. 5, 87, as to causing or attempting to cause violation of election duties. [Ed. Note.-For other cases, see Elections, Cent. Dig. § 362; Dec. Dig. 328(5).] Information against Samuel Burris. fendant demurs. Overruled. De Argued before BOYCE and CONRAD, JJ. for the State. David J. Reinhardt, of WilArmon D. Chaytor, Jr., Deputy Atty. Gen., mington, for the accused. Information No. 53, November term, 1915. An information charged defendant with the violation of article 5, section 7, Constitution of the state of Delaware, in that, as alleged; he did cause or attempt to cause certain officers of a primary election, held in the city of Wilmington, to violate their duty to keep the polls open from one to seven o'clock, as required by statute. On special demurrer to the several counts in the information. Demurrer overruled. The facts are stated in the opinion. BOYCE, J. (delivering the opinion of the court). This is a special demurrer to an in- · formation, charging Samuel Burris with the violation of a certain provision of section 7, article 5 of the Constitution of the state of Delaware. Seven causes of demurrer are assigned, but the first and sixth were abandoned at the argument. The second and third causes are substantially the same, and are that the facts al (Court of General Sessions of Delaware. New leged in each count of the information do Castle. March 29, 1916.) 1. INDICTMENT AND INFORMATION TEMPTS. 115-AT An indictment or information under a statute relating to attempts to commit offenses, which contains no description of the act done or step taken beyond mere preparation of the accused in attempting to commit the particular crime, is insufficient. [Ed. Note. For other cases, see Indictment and Information, Cent. Dig. § 308; Dec. Dig. 115.] not constitute any offense under the Constitution and laws of the state; the fourth is that the facts set forth in each count are not alleged with sufficient particularity to inform the accused of the offense with which he is charged; the fifth is that each count states a conclusion of law; and the seventh is that each count is in other respects uncertain, informal and insufficient. The allegations in the first and second |