Jacoby v. Bolen, Certiorari No. 76

Certiorari No. 76 | Del. Super. Ct. | Mar 23, 1907

Lore, C. J.:

How does it appear that the referee is the same Charles F. Bowers who is a constable?

Mr. Garrett:—I ask the Court to take judicial notice that Mr. Bowers is a constable of New Castle County.

Mr. Hastings:—The Court could not take judicial notice of such a fact, and we do not admit that he is a constable of this county.

(The second exception was to the effect that the record did not state that the Justice appointed three judicious and impartial men of the county, as required by the statute.)

Lore, C. J.:—That would not be a jurisdictional question; it is an irregularity. The presumption is that the Justice did his duty, unless it appears to the contrary. Is there anything in the record to show that they were not judicious and impartial?

Mr. Garrett:—In case of residence not being set out, your Honors will not assume that they are residents of the county. It is statutory and part of the qualification of the referees, for they would have no right to try the case unless they were citizens of the county.

(Hastings, for the defendant in error, contended that the record was sufficient.)

Revised Code, page 740 and page 743; Hunter vs. Roach, 1 Pennewill 265.

Judgment' below affirmed.