court might have retained jurisdiction of the whole controversy. As the court said in the case last cited:

"A court of equity, on a bill being filed for a discovery, will sometimes proceed to take jurisdiction of all matters in controversy between the parties, instead of sending them to a court of law, and thus avoid circuity of action."

This would continue to be true, notwithstanding that by statute courts of law may grant, in cases pending there, discovery to either party, for this statute did not withdraw from the Court of Chancery the power to give discovery. In this case, however, this court is asked to interfere with a suit at law now pending, and, stripped of all the insufficient reasons, the real reason for the bill is that the complainant, though possessed of a good defense to that suit, finds it necessary to bring another suit in order to have full relief against the defendants, the administrators of the mortgagee.

multiplicity of two suits, each of which were cognizable at law, and both of which relate to the same transaction and relationship, the indebtedness secured by bond and mortgage?

There is authority for the affirmative of this question. Biddle v. Ramsey, 52 Mo. 153. There the plaintiff had a lease with the defendant by which at the end of the lease there would be a determination by appraisers to be appointed by the lessor and lessee as to the value of the improvements made by the lessee, and that the lessor had a right to buy the improvements at the appraisement. It was alleged that the lessee fraudulently prevented the appraisement and kept possession after the expiration of the term for three years without paying rent. The court held that a court of equity had jurisdiction to avoid multiplicity of suits to be brought by the plaintiff, viz., ejectment for recovery of possession, and other actions to determine the cost of improvements.

"But in the method of procedure to which the plaintiff in the present case has very properly resorted, one that on the facts as stated will call into activity the peculiarly flexible power of a court of equity, all matters of difference, whether relating to the valuation of the buildings and improvements, the taking of an account for yearly rents, or the recovery of the possession of the premises in question, can be most fully

ample and complete justice effectuated between these parties litigant."

This case is criticised by Pomeroy, vol. 1, § 252, note 2.

The cases of Conner v. Penington, 1 Del. Ch. 177, and Matthews v. Dodd, 3 Del. Ch. 159, do not help much in reaching a conclusion. It was there held that defenses to actions at law, available there, do not authorize a court of equity to enjoin the suit or transfer the litigation to it. All that the debtor could do in the Court of Chancery he could do in the suit in the court of law. In each of those cases the whole of the matters in controversy could have been set-adjusted, and by one trial and one decree tled in one suit. In Conner v. Penington, the complainant was the defendant in a scire facias action on a judgment against him and claimed that there had been payments on account of the judgment debt, and In the case of Biddle v. Ramsey, cited in Matthews v. Dodd, there was a scire faci- supra, there was no cause then pending at as action on a recognizance taken in the Or- law, while there was here. The court of law phans' Court, and the defendant alleged pay- has rightly taken jurisdiction of part, at ment in full and his difficulties in proving | least, of the controversy, viz., the scire facithe defense, and prayed for discovery and a permanent injunction against further maintenance of the suit. In neither of the cases, however, was more than one suit at law necessary, for in neither was there a claim of overpayment, or a prayer that the administrator of the creditor be required to repay the amount so overpaid. The jurisdiction to entertain the cause, otherwise triable by a court of law, in order to avoid multiplicity of suits is well settled. Murphy v. Wilmington, supra.

Then, the inquiry is this: When a debtor alleges that he has not only paid the debt, but by his own mistake, and through the fraud of the creditor, overpaid the debt, and that though his payments constitute a defense to the suit at law already brought against him for the debt, he must himself institute another suit at law to recover the amount overpaid, may he maintain a bill in equity to enjoin the further prosecution of the suit already brought and recover re

as action. Should it be ousted of a jurisdiction already taken because another suit is necessary to determine other matters between the same parties? I am inclined to think that the jurisdiction should be sustained: (1) Because the other matter, overpayment, relates to the same debt; (2) because, as alleged, the overpayment was made through fraud of the creditor as well as by mistake of the debtor; and (3) because the debtor should not, therefore, be put to the trouble and expense of bringing a suit in addition to defending another suit brought against him, in order to protect himself fully against a situation for which, in part at least, the creditor was responsible. Upon this point I now express no settled conviction.

In view of the combination of reasons for need for relief in this court, discovery, accounting, injunction against the suit pending and a recovery of the amounts overpaid, and the allegation of mistake and fraud, some

2. NEW TRIAL (§ 29*)-GROUNDS-ARGUMENT Co., 119 Iowa, 464, 93 N. W. 367; Wendler OF COUNSEL.

affidavit that the words spoken by counsel in any wise influenced the jury, but on the contrary the affidavit stated that it was "calculated" to influence the jury. In that case, as it was not claimed in the affidavit that the statement did influence the jury, there was no reason why the court should proceed further in their consideration of the motion.

in their verdict by the statement, and in support of their claim have filed an affidavit by one of the defendants to this effect. When the statement was made by the counsel for the plaintiff, an exception was immediately taken by the defendants' counsel and noted by the court, the court at the time instructing the jury that in their consideration of the case they must ignore the statement and consider evidence admitted into the case only, and counsel for the plain-ion that the verdict, both in favor of the tiff thereupon withdrew the statement made by him.

Counsel for the defendants argued at the bearing on the motion that the statement was of such a nature that it naturally excited the pity of the jury in favor of the plaintiff and that the jury was influenced thereby in finding their verdict, notwithstanding the instruction of the court and the withdrawal by counsel.

In the case before us we are of the opin

plaintiff and for the amount found, was one which might well have been found by any jury from the evidence then before them, and that there is nothing to indicate in the verdict returned that they were influenced by the statement, and it is only reasonable to believe, as directed to do by the court and by the withdrawal of the remark by counsel that the jury ignored the statement in their consideration of the case and that they were not influenced by it.

The court is of the opinion that the statement made by counsel was most improper, We therefore deny the motion and refuse and one which might under some circum- to award a new trial. stances influence a jury in finding an unjust verdict.

In the case of Pritchard v. Henderson, 3 Pennewill, 128, 50 Atl. 217, the court in refusing to grant a new trial said: "There was sufficient conflict of testimony before the jury in this case from which reasonable men might draw different conclusions; and as the jury were the sole judges of the evidence, and as they were specially charged, not to regard any statement of counsel not supported by the evidence; and as there is nothing before the court to show that any such statement in any wise affected the verdict, within the well-settled practice of this court the verdict should not be disturbed for such a reason."

Counsel for the defendants contends that in the above case when the court said, "There is nothing before us to show that any such statement in any wise affected the verdict," this had reference to the fact that no affidavit was filed by the defendant, or any one for him, to the effect that the jury had been influenced in their verdict by the statement. While we do not know whether an affidavit was or was not filed in that case, yet we think that it did not have special reference to such omission, if omission there was, but that such reference was to the fact that there was nothing in the verdict to show that it was an unreasonable one, not within the evidence, and when the whole paragraph of the court's opinion is read, we are firmly of the belief that our conclusion is a correct one.

[Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. §§ 280-283, 606; Dec. Dig. § 161.*]

3. SET-OFF AND COUNTERCLAIM (§ 1*)—“RECOUPMENT.'

in the same action to claim damages from the "Recoupment" is the right of a defendant plaintiff for some cross-obligation or violation of duty relating to the contract sued on.

[Ed. Note.-For other cases, see Set-Off and Counterclaim, Cent. Dig. § 1; Dec. Dig. § 1.* For other definitions, see Words and Phrases, vol. 7, pp. 6015-6019.]

4. PLEADING (§ 384*)-RECOUPMENT NOTICE. ant may prove any damages growing out of the Under a notice of recoupment, the defendtransaction between them.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 1296-1298; Dec. Dig. § 384.*] 5. EVIDENCE (§ 96*)-RECOUPMENT-Burden OF PROOF.

The Pritchard v. Henderson case is not, in our opinion, in conflict with the earlier case of Rothwell v. Elliott, 2 Marvel, 151, 42 Atl. 424. In the latter case the court based its refusal to award a new trial on the ground that there was no averment in the

The burden is on the defendant to prove matters set up in the notice of recoupment. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 119-121; Dec. Dig. § 96.*]

cubator house and in the brooder house was not seven feet in the clear; that the chimney contains but one flue; that the lumber used was not first quality North Carolina pine; that the work was not completed in one month from November 1, 1910, and that Sci. fa. sur le mechanic's lien (No. 8, Sep- the work done was not done in a workmantember term, 1911). like manner.

The amount claimed by plaintiff was $458 for materials furnished and labor expended, in the construction and erection of a building or structure called an incubator and brooding house, on the defendant's premises in White Clay Creek hundred, New Castle county. The contract duly entered into between satisfaction that a considerable portion of the parties, provided as follows: these materials was not of the quality and "Agreement made this 1st day of Novem-kind specified in the contract, although not ber, 1910, between Marion Jane Murray, of of as much value as if they were of the kind Newark, Delaware, and Wilmer S. Haw- and quality specified in the contract, the thorne, of the same place. claimant may recover in this action what they were reasonably worth.

making or performance of that contract. | worthy of belief, taking into consideration Under the notice of recoupment, it is compe- the interest, bias or prejudice the witnesses tent for the defendant to give evidence of may have in the case, and your decision damages if any, growing out of the transac- should be in favor of the party with whom tion between them. The burden of proving rests the preponderance or greater weight the matters set up in the notice of recoup- of the evidence. ment, in the way of defense, rests upon the defendant. Such a defense, whenever made, goes only in reduction of claimant's demand, but the defendant cannot recover for any balance or excess, if it should exceed the claimant's demand.

Verdict for plaintiff for $250.

STATE v. OLEKSY et al.

Whether the claimant's demand should be (Court of General Sessions of Delaware. reduced by reason of any damages which Castle. May 23, 1912.) the defendant alleges she has sustained, you should determine from the evidence respecting such damages, considered in connection with all the evidence in the case.

New

INDICTMENT AND INFORMATION (§ 56*)—Stat-
UTES-VIOLATION OF LIQUOR LAW.

[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 175, 176; Dec. Dig. § 56.*]

Rev. Code 1852. amended to 1893, p. 419 (16 Del. Laws, c. 384) § 12, which provides [7] Touching the matter of the substitu- toxicating liquors, it shall not be necessary to that, in prosecutions against any vendor of intion of one material for another, and the allege that the defendant had no license, but acceptance thereof, we say this to you. It that the fact of license shall be matter of is contended by the plaintiff that the defend-defense under the plea of not guilty, does not violate Const. art. 1, § 7, requiring an indictant consented to and accepted the substitu- ment to plainly inform the defendant of the tion of a brick floor for a cement floor, and nature of the accusation against him. likewise to the use of certain brick for the walls other than hard burnt brick. The defendant insists that the plaintiff represented to her that a brick floor would be as good and effective as a cement floor, and that certain bricks which were used in the walls would be as good as the hard burnt brick. If you believe that the substitutions were made with the consent of the defendant, but only upon such representations of the plaintiff, and that the same were untrue, and relied upon, then the defendant's acceptance of the same would not relieve the plaintiff of any damages sustained by the defendant, if any, by reason of such substitutions.

[8] If you find that the claimant completed the work in full compliance with the terms of the contract, your verdict should be for the claimant for the full amount of his claim. If however you should find that the claimant has not fully complied with the terms of the contract, then he is not entitled to the full amount claimed by him; but if it should be established to your satisfaction that the work, labor and materials furnished by the claimant were of any use to the defendant, then you can find for the claimant in such amount as you find such work, labor and materials to be reasonably worth, subject, however, to any reduction by reason of any damages, which you may find the defendant has suffered from the claimant's failure to comply with the terms and provisions of the contract.

[9] The facts in the case, as shown by the witnesses, are for your exclusive determination. It is for you to take the evidence, and, where it is conflicting, you must reconcile it if you can, and if you cannot reconcile it you should give credence to the evidence of those witnesses whom you believe most

Antonio Oleksy and another were indicted for selling intoxicating liquors without a license, and they move to quash the indictment. Motion overruled.

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

Josiah O. Wolcott, Deputy Atty. Gen., for the State. Philip L. Garrett, of Wilmington, for defendants.

Indictment for "selling intoxicating liquor without license" (No. 43, May term, 1912).

Motion to quash indictment because it did not plainly and fully inform the defendants of the nature and cause of the accusation against them in accordance with the provisions of section 7, of article 1, of the Constitution of the state of Delaware.

The indictment is set out in the opinion of the court.

RICE, J. (delivering the opinion of the court). The grand jury of this county, at the present term, indicted Antonio Oleksy and Joseph Helenski for the unlawful sale of intoxicating liquor, the indictment being as follows:

"That Antonio Oleksy and Joseph Helenski, both late of Wilmington hundred, in the county aforesaid, on the third day of March, in the year of our Lord one thousand nine hundred and twelve, with force and arms, at Wilmington hundred in the county aforesaid, did then and there unlawfully sell intoxicating liquor, to wit, lager beer, to one Felix Lewandowski, against the form of the act of the General Assembly, in such case made and provided, and against the peace and dignity of the state."