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nant woman, and an indictment under such clause, charging defendants with having counseled a pregnant woman who was intending to procure her own miscarriage, is bad.

John A. Parm and John Viney were indicted for abortion. On motion to quash a count of the indictment. Granted.

The indictment consisted of four counts, the third of which was as follows: "And the jurors aforesaid, on their oath and affirmation, respectively, aforesaid, do further present that John A. Parm, late of Wilmington hundred, in the county aforesaid, and John Viney, late of Brandywine hundred, in the county aforesaid, on the twentyfifth day of September, in the year of our Lord one thousand nine hundred and four, with force and arms, at Wilmington hundred aforesaid, in the county aforesaid, unlawfully, feloniously, and with the intent to procure the miscarriage of one Kate M. Waters, she, the said Kate M. Waters, then and there being a pregnant woman, then and there supposed by the said John A. Parm and the said John Viney to be pregnant, did counsel her, the said Kate M. Waters, so intending to procure a miscarriage of her, the said Kate M. Waters (the same not being necessary to preserve the life of her, the said Kate M. Waters), against the form of an act of the General Assembly in such case made and provided, and against the peace and dignity of the state."

Mr. Handy: I move to strike out the above count on the ground that it does not state the offense under the statute the indictment is drawn under. Chapter 226, p. 523, vol. 17, Laws Del. (Rev. Code 1852, amended in 1893, p. 930). The section of the statute which applies is section 2. The third count of the indictment charges the defendant with counseling Kate M. Waters, alleged to be the pregnant woman. This is manifestly under the second clause of the second section of the statute which makes it a crime for any one to "aid, assist, or counsel any person so intending to procure a miscarriage," etc. This does not include counseling the pregnant woman herself, but only counseling the person intending to procure a miscarriage of the pregnant woman.

The Attorney General replied, stating that under the whole of section 2 he saw nothing to prevent a pregnant woman from using an instrument herself, and committing the offense under the statute, and that the indictment was therefore sufficient.

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

Robert H. Richards, Atty. Gen., for the State. L. Irving Handy, for defendants.

LORE, C. J. The court have thoroughly looked into the matter of the motion made this morning to quash the third count of the indictment against John Parm and John Viney, and we think the word "person"

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1. No particular words are necessary to create a warranty, but any affirmation made at the time of sale as a fact, and as an inducement to the sale, if relied upon by the buyer, amounts to a warranty; but the mere expression of an opinion, not amounting to an affirmation, and not showing an intent to warrant, will not constitute a warranty.

[Ed. Note. For cases in point, see vol. 43,

Cent. Dig. Sales, §8 12es in

2. Where the buyer and seller have equal knowledge or opportunities of knowing the properties or qualities of the thing in question, and each relies on his own judgment and observation in regard to the matter, each deals on the strength and basis of his own opinion; and there is no warranty, either express or implied, involved in the transaction.

[Ed. Note. For cases in point, see vol. 43, Cent. Dig. Sales, §8 764, in

3. An agreement at the time of the sale of a horse that, if the same was not satisfactory, the buyer might return it and receive his money back, permits the buyer to decide for himself whether, after reasonable trial, the horse is satisfactory.

[Ed. Note. For cases in point, see vol. 43, Cent. Dig. Sales, § 790.]

4. One who relies on an express warranty must prove that the warranty was made at or before the sale, and not after, and that it was broken when made.

[Ed. Note.-For cases in point, see vol. 43, Cent. Dig. Sales, §§ 724, 787.]

5. The measure of damages for the breach of an express warranty of a horse is, where the horse is not returned to the seller, the difference between his actual value and what his value would be if he were in the condition in which he was warranted to be.

[Ed. Note. For cases in point, see vol. 43, Cent. Dig. Sales, § 1285.]

6. An offer by the buyer to rescind a contract for breach of warranty must be made without undue delay, and with as much promptitude and dispatch as the circumstances of the case will admit.

[Ed. Note. For cases in point, see vol. 43, Cent. Dig. Sales, § 313.]

7. What will constitute a reasonable time within which an offer to rescind a contract shall be made is a question for the court, but whether such a reasonable time has elapsed before it was made is a question for the jury.

[Ed. Note. For cases in point, see vol. 43, Cent. Dig. Sales, § 317.]

8. Plaintiff purchased a horse warranted by defendant to be sound, and, in driving it home on the day of the sale, observed that its wind was not very good. The next day the horse was not so well, and plaintiff called in a veterinary surgeon to treat it. About two weeks afterwards he notified defendant that the horse was not satisfactory. He claimed that defendant then requested him to keep the horse about a week longer, and then return it. This he did, but defendant refused to refund the money paid for the horse. Held that, if defendant's delay in returning the horse was induced by defendant, plaintiff's offer to rescind was made within a reasonable time.

9. If the delay was unreasonable and unwarranted, defendant could waive the same; and whether he did so waive it was, under the facts, a question for the jury.

10. But if plaintiff had determined on the day that he drove the horse home, or the day following, that it was not as represented, and would not suit him, and if defendant did not induce him to delay its return, his action in returning the horse at the end of three weeks was unreasonably delayed.

Action by James Tigner against William H. Collins. On appeal from justice. Verdict for plaintiff.

Argued before LORE, C. J., and SPRUANCE and BOYCE, JJ.

John B. Hutton, for appellant. Richard R. Kenney and Arley B. Magee, for respondent.

BOYCE, J. (charging jury). This action was originally brought by the plaintiff before a justice of the peace in this county to recover from the defendant the price or sum which it is alleged he paid to the defendant for a horse. The case is now in this court on an appeal from the Justice. You are not concerned with, nor should you in any wise consider, the result of the trial had before the justice. The case is tried here anewthe same as if it had been brought in this court in the first instance. And as was said to you before you were discharged upon the adjournment of the court, you are to confine your consideration of this case to the evidence which has been produced before you from the witness stand, and your verdict, whatever it may be, should be in accordance with the preponderance of the evidence, applied to the law of the case as announced to you by the court.

The plaintiff claims that he bought the horse of the defendant on the 7th day of March A. D. 1903, and that he paid there for at the time the sum of $90. He further claims that at the time the horse had a cold, and that its wind seemed to be affected; that he and the defendant discussed the condition of the horse; that the defendant assured him that its wind was all right, and that it was simply affected by a "shipping cold"; that he bought and paid for the horse upon the condition that, if it was not sound and satisfactory to him, he might return it to the defendant, who would in that event refund to him the money paid. It is admitted that at the time the plaintiff paid

for the horse the defendant gave the following receipt: "Smyrna, Del., March 7, 1903. Received of J. B. Tigner ninety dollars payment for one bay mare 5 years old guaranteed to be kind and sound good worker in all harness. $90.00. F. E. Postles, Clerk, for W. H. Collins." The plaintiff further claims that in driving the horse home on the day on which he bought it-a distance, of about 10 miles from where the defendant resided-he observed that the wind of the horse was considerably affected; that on the following morning he called in a veterinary surgeon to examine the horse, and he treated it for a week or two; that in about two weeks thereafter he went to see the defendant, and informed him as to the condition of the horse, and told him that it had not been in a condition to drive back, and that it did not suit him, and was not sound, and asked him to take it back; that the defendant requested him to keep it another week, and bring it back, and he would take it back; and that he returned it about a week thereafter to the defendant. who refused and has continued to refuse to refund the money paid for the horse. The defendant admits that the horse had a slight cold at the time of the sale, and that its condition, both as to the cold and its wind, was discussed; but he denies that the wind of the horse was affected, or that the horse was unsound, or affected otherwise than by a "shipping cold." He admits that at the end of about two weeks the plaintiff called upon him, and spoke to him about the condition of the horse, but denies that he told the plaintiff to keep the horse another week, and then return it, and he would refund to the plaintiff the price paid for the horse. And the defendant claims that when the horse was returned to him it was in a thin, weak, and lame condition-different from that in which the horse was when he delivered it to the plaintiff. He denies that he sold the horse subject to be returned if not satisfactory, and claims that his warranty did not extend to defects in the horse which were obvious and visible, or to those made known to the plaintiff at the time of the sale.

You will, in your review of the evidence, recall the various statements and contentions of the respective parties and the testimony of their witnesses. In considering this case, you should endeavor to ascertain from the evidence what representations, if any, as to the soundness of the horse, were made by the defendant as an inducement to the sale, and likewise whether the defendant agreed with the plaintiff at the time of the sale that, if the horse was not sound and satisfactory, the plaintiff was at liberty to return it and receive his money back.

As to the question whether the defendant did warrant the horse to be sound, we will say that no particular words are necessary to create a warranty. Every affirmation

made at the time of the sale, as a fact and as an inducement to the sale, if the buyer relies upon such affirmation, amounts to a warranty. Whether statements made at the time of the sale amount to an affirmation of a fact, or are simply expressions of opinion, often depends upon the nature and circumstances of the sale. The mere expression of an opinion, not amounting to an affirmation, and not showing an intention to warrant, will not constitute a warranty. This court has held that whatever representation is made by the seller at the time of the sale as to the quality of the article is an express warranty. Burton v. Young, 5 Har. 233.

It is a general rule of law that when the buyer and seller have equal knowledge or opportunities of knowing the properties or qualities of the thing in question, and each relies on his own judgment and observation in regard to the matter, each deals on the strength and basis of his own opinion, and there is no warranty, either express or implied, involved in the transaction. O'Neal v. Bacon, 1 Houst. 215; Burton v. Young, 5 Har. 233; Cummins v. Ennis, 4 Pennewill, 426, 56 Atl. 377.

As to the alleged agreement to the effect that, if the horse was not satisfactory, the plaintiff might return it, and receive back the money paid therefor, we will say that such an agreement, if made at the time of the sale, would permit the plaintiff to decide for himself whether, after reasonable trial, the horse was satisfactory to him.

To entitle the plaintiff to a recovery in this action, it is incumbent upon him to satisfy you by a preponderance of the evidence that there was either (1) a contract of warranty; (2) a breach of that warranty; and (3) show the damages sustained by reason of such breach, or that the sale was made, as alleged, upon the express condition that, if the horse was not satisfactory, the plaintiff might return it to the defendant, and receive his money back.

When a plaintiff relies upon an express warranty as that the defendant at the time of the sale expressly stated that the horse was sound, or represented it as sound-he must prove that the contract of warranty was made at or before the sale, and not after, and he must also prove the breach of the warranty. He must likewise show that the unsoundness existed at the time of the sale. Having proven the warranty and the breach thereof, it is incumbent upon him to show the damages which he has sustained. The measure of damages in such a case, where the horse has not been returned, is the difference between the actual or real value of the horse in his defective, unsound state, and his value in that sound state in which he was represented to be by the defendant. Burton v. Young, supra. The plaintiff in this case does not seek to recover such difference, he having, it is alleged, returned the horse to the defendant, but he seeks to re

cover the entire sum which he paid for the horse; he contending that, under the contract of warranty and the breach thereof, he not only had the right to rescind the contract of sale and return the horse, but that he had an express agreement with the defendant that, if the horse was unsound or unsatisfactory, he might return it, and receive back the money paid for it.

We have been requested to instruct you that if you find that the plaintiff did not offer to return the horse upon the day on which he discovered the alleged unsoundness, or on the day following that day, your yerdict should be for the defendant. We cannot do so. What will constitute a reasonable time within which the offer to rescind a contract shall be made is a question for the court. Whether such a reasonable time had elapsed before it was made in any case is a question for the jury, and that would depend to some extent on the circumstances of the case; but the general rule of law on the subject is that it must be done when allowable, without undue delay, and with as much promptitude and dispatch as the circumstances of the case will admit. Wilson v. Fisher, 5 Houst. 396.

In the present case the plaintiff admits that he observed that the wind of the horse did not seem to be good on the day he drove it home; that the next morning it did not seem to be well, and he called in a veterinary surgeon to treat it, and that in about two weeks thereafter he notified the defendant that the horse was sick and not satisfactory; and he alleges that defendant requested him to keep the horse about a week longer, and then return it, and he would take it back. Whatever might be said about the delay of the plaintiff to notify the defendant in the first instance, if you find that notice of the condition of the horse was given as alleged by him, we say to you, if you believe that the delay of the plaintiff in returning the horse was induced by the defendant, then, under such circumstances, the time when the horse was returned was a reasonable time in which the plaintiff might return it and rescind the contract of sale. We might say that, if there had been such unreasonable delay to return the horse in the first instance as was not warranted by law, yet it was competent for the defendant to waive the requirements of the law in that respect, and it is for you to find whether, under all the evidence, there was such a waiver. But on the other hand, if the plaintiff made up his mind on the day in which he drove the horse home, or on the day following, that it was not as represented, and that it would not suit him, and if, as alleged, the defendant did not induce him to delay the return, then the time when the plaintiff admits he did return the horse was not a reasonable time, within the rule of law which we have stated to you, and in that event the plaintiff should not recover.

We have been requested to instruct you upon other questions of law not covered by this charge, but we do not deem them pertinent to the facts disclosed by the evidence in this case. If you are satisfied from the evidence that the defendant at the time of the sale warranted the horse to be sound, and that at that time it was unsound, he is bound by his warranty, and if the plaintiff rescinded the contract and made return of the horse within a reasonable time, under the circumstances of this case, or if you find that the defendant sold the horse upon condition that it should be satisfactory to the plaintiff, and, if not satisfactory, the plaintiff might return it, and if you further find that the plaintiff decided that the horse would suit him, and he returned it to the defendant within a reasonable time, according as we have instructed you, then the plaintiff is entitled to a recovery for the amount which he paid for the horse, with interest thereon from March 7, 1903. If, on the other hand, you find that the defendant did not so warrant the horse, and that he did not sell it upon condition that it should prove satisfactory to the plaintiff, as alleged, or if, finding one or both of these, you further find that the plaintiff did not return the horse with such promptitude or dispatch as the law, under the circumstances of the case, would admit, unless the delay was induced by the statements of the defendant, then the defendant would be entitled to a verdict.

Verdict for plaintiff below (respondent) for $90.

In re HOFFECKER.

(Court of Chancery of Delaware. May 8, 1905.)

ATTORNEYS-SOLICITORS IN CHANCERY - TRUSTEES-MISCONDUCT-DISBARMENT.

1. A rule striking the name of an attorney from the roll of solicitors in chancery for misconduct does not disbar him from practice as an attorney at law before the law courts of the state.

[Ed. Note. For cases in point, see vol. 5, Cent. Dig. Attorney and Client, § 83.]

2. Where a solicitor in chancery was appointed trustee of a trust fund left by a testator for the benefit of his daughters for life, remainder to their children, then invested in safe, conservative, income-bearing securities, and such solicitor improperly disposed thereof, and invested the proceeds in the stock of industrial corporations of which he was a promoter, so that a large part of the estate not paid over to the life tenants was dissipated and lost, such conduct justified an order striking his name from the list of solicitors in chancery.

Proceedings against James H. Hoffecker, Jr., to strike his name from the roll of solicitors in chancery. Rule absolute.

On the 20th day of December, A. D. 1904, the following rule was issued and served upon James H. Hoffecker, Jr., a solicitor of the Court of Chancery of the state of Dela

ware:

"And now, to wit, this 20th day of December, A. D. 1904, the report of Alexander B. Cooper, Esq., master appointed by the chancellor to examine and pass upon the account of James H. Hoffecker, Jr., trustee by appointment of the chancellor of the state of Delaware under the last will and testament of Joseph Teas, deceased, and to examine into and pass upon the transactions and dealings of the said James H. Hoffecker, Jr., as trustee, in relation to the trust estate in his hands, since the 4th day of October, 1889. having this day been approved and confirmed by the chancellor, for certain causes appearing therein a rule is hereby laid upon the said James H. Hoffecker, Jr., to show cause why, having regard to his acts and conduct as found by the said master, his name should not be struck off the roll of solicitors of the Court of Chancery of the state of Delaware, as a person unfit and improper to longer practice as a solicitor in the said court. It is thereupon ordered by the chancellor that the said James H. Hoffecker, Jr., do show cause before the chancellor at the courthouse in Wilmington on the 9th day of January, A. D. 1905. And it is further ordered that a copy of this order be forthwith served upon the said James H. Hoffecker, Jr."

Mr. Hoffecker appeared at the return of the rule, and after several continuances granted upon the application of his counsel, Hon. Anthony Higgins, Mr. J. Frank Ball, Mr. J. Harvey Whiteman, and Mr. William S. Hilles, appearing as solicitors for the rule by appointment of the chancellor, a hearing was had on the 28th day of March last, beginning on that day and ending on the 31st, at which hearing the respondent was permitted to introduce proofs and matters of defense as fully as if the hearing had been on exceptions to the master's report upon which the rule was issued, or upon petition.

NICHOLSON, Ch. The duty imposed upon the court by such a case as this is peculiarly painful, and I cannot refrain from

expressing my profound appreciation of the assistance rendered to the court by the gentlemen who appeared for the rule, and also my appreciation of the exhaustive and vigorous presentation of the respondent's case by his counsel, and of the fact that the character and ability of that distinguished solicitor of this court give me the assurance that nothing has been left undone or unsaid that could be done or said in defense of the respondent to the rule. There are no disputed facts in the case. The motion to make the rule absolute is based upon the respondent's own testimony and admissions, and nothing will be considered by me in its decision that is not admitted to be true by the respondent's own testimony, or that does not appear over his own signature. It should also be borne in mind that this proceeding does not concern the respondent's connec

tion with the law courts of the state, that his position as attorney at law is absolutely independent of his position as solicitor in chancery, and that this rule can only affect his position as a solicitor of this court.

The two elaborate briefs filed by his counsel contain many citations of English and American cases, and are directed mainly to a consideration of the grounds upon which a solicitor in chancery may properly be stricken from the rolls, or an attorney at law be disbarred; and he says that "no case can be found where a solicitor's name has been, in England, stricken from the rolls, or, in America, a lawyer disbarred, for any alleged unprofessional conduct in pecuniary matters, when such conduct did not amount to mala fides, as shown by a misappropriation of property to his own use." He also contends that "the acts for which it is sought to strike the respondent from the rolls were acts done by him qua trustee, and not as solicitor of the court." And he claims that on that account even grosser misconduct must be shown to justify the striking of his name from the rolls of the Court of Chancery. It is obvious, however, that cases in which attorneys have been disbarred because of heinous offenses or gross fraud do not carry any inference that the same courts would not have disbarred them for misconduct less gross. Nor do cases where courts have refused to disbar or have questioned the propriety of disbarring a lawyer charged with an indictable offense, which he has not confessed, and for which he has not been tried and convicted, appear in any respect relevant to the present case. The cases belonging to the latter class are summed up by the Supreme Court of the United States in Ex parte Wall, 107 U. S. 281, 2 Sup. Ct. 582, 27 L. Ed. 552, as follows: "But when the acts charged against an attorney are not done in his official character, and are indictable, and not confessed, there has been a diversity of practice on the subject. In some cases it is laid down that there must be a regular indictment and conviction before the court will proceed to strike him from the rolls; in others, such previous conviction being deemed unnecessary."

There is no doubt or ambiguity, however, about the law and practice of the courts. The principles guiding the courts of common law and courts of equity in both England and America in the exercise of their jurisdiction to preserve the integrity and maintain the standard of their respective bars by striking a solicitor or attorney from the rolls of the court are set forth in a line of decisions dating back beyond Lord Mansfield. Many of the most instructive and important cases are so fully reviewed and commented upon by the Supreme Court of the United States in the case above cited of Ex parte Wall, 107 U. S. 265, 2 Sup. Ct. 569, 27 L. Ed. 552, that it would be sufficient for me to cite that case only, but I will also cite

the case of Fairfield County Bar ex rel. Samuel Fessenden et al. v. Howard W. Taylor, Appt., decided on appeal by the Connecticut Supreme Court of Errors, and reported, with notes, in 13 L. R. A. 767. I will also quote at length from a case decided by Sir John Romilly, Master of the Rolls, and cited by the counsel for the respondent, because of its similarity to the case at bar in some essential points. In re Chandler, 22 Beavan, p. 253. In that case, stock was invested in the names of Mr. Chandler, a solicitor, and Mr. Worsley; Chandler, in right of his wife, being entitled to one-third in reversion. Chandler prevailed upon Mr. Worsley, his co-trustee, to join in executing a power of attorney to sell off the stock, and to allow him (Chandler) to place the proceeds to his own account at his banker's. This being done Chandler applied the money to his own use, but continued to pay the dividends to the person entitled until he became insolvent, when it became known that he had misapplied the funds, and a petition was presented to have him struck off the rolls. His counsel, upon the hearing of the petition, claimed that "the act done by him, though constituting a breach of trust, was done in his character as trustee, and not of solicitor, and with no fraudulent intent. Mr. Chandler had interest in the fund, and naturally wished to improve it, and, when he had the money placed to his account at his bankers, he possessed a large amount of property and thought the trust fund quite safe; but unfortunately it turned out otherwise. He did not intend to wrong any one, nor was there any concealment, for the money was duly entered in his own books to the proper account, and there is no reason to say he was solicitor of the trust. He is not, therefore, amenable to the summary jurisdiction of the court in respect of a matter not relating to his professional conduct." The master of the rolls, Sir John Romilly, delivered the following opinion: "It is said that Chandler was not the solicitor of the trust, and that he has not made any professional charges against the estate. But he was a trustee, and, so far as the services of a solicitor were required, he had acted as such, or at least there does not appear to have been any other solicitor employed. He knew it was a breach of trust to sell out the stock; he knew he could not do so without the consent of his co-trustee; and, knowing this, he induced his co-trustee to join in executing the power of attorney to sell out, and that obviously for his own purposes, he having, at the time, no security or investment in view to justify him in keeping the money at his banker's for that purpose, but he kept it there and applied it to his own use. This is a course of conduct which solicitors are bound to keep themselves free from. They are placed in a position of a high trust, and happily it is very rare that the court is called upon to bring them to account in this manner. They

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