(4 Boyce, 259) sufficient" to supply the information sought, The motion to quash the amended return and the bare averment of the defendant that to the alternative writ is granted and the the books and the statements mentioned in amended return is quashed to the extent conparagraphs (e) and (f) of the writ are "in templated by the motion and considered in no way essential to the determination of or this opinion. proper for consideration in connection with the ascertainment of the value" of the shares of stock, are conclusions or judgments of the defendant which alone cannot be pleaded as facts in denial of the relator's right to the inspection of the particular books and statements, it being the duty of the defendant to show by its pleading their nonessentiality and it being a function of the court to pass thereupon. We are of opinion that bad faith on the part of the relator charged by the defendant in its return, is not pleaded or shown so as to affect the right of the relator to the remedy it is pursuing; that the denial by the defendant that the relator is unable to obtain from the defendant the information necessary to enable it to ascertain the value of its shares, is not clear and positive, but is uncertain, evasive, and insufficient; that the offer of the defendant to furnish the information is insufficient, as a compliance with the writ, in that it is not in accord with the ruling of the Superior Court in effectuating the decree of the Supreme Court in the Brumley Case, supra; and that the return leaves undenied the following averments of the petition: (a) That the relator is a national banking corporation. (b) That the defendant is a Delaware corporation with an outstanding capitalization of $1,250,000. (c) That the relator owns 275 shares of the stock of the defendant corporation, aggregating $27,500. (d) That the relator was compelled to acquire said stock for its own protection, the same having been pledged as collateral to secure loans made by relator. (e) That relator, as a national bank, is required under the federal law and has been instructed by national bank examiners to ascertain the value of said stock and report the same, so as to enable a determination of the true value of the bank's assets. (f) That the said stock has no general market and pays no dividends. That the relator desires to sell its stock, but cannot hope to do so unless it can furnish contemplated purchasers some knowledge or assurance of the value of the stock. That the relator requested the defendant in writing to permit it to inspect certain of the defendant's books, which request was refused. These averments were considered sufficient by this court upon which to award an alternative writ of mandamus, and these averments, undisturbed by sufficient denials, are in our opinion sufficient upon which to award the writ of peremptory mandamus. STATE v. HUBER. (Superior Court of Delaware. New Castle. Oct. 2, 1913.) 1. WEIGHTS AND MEASURES (§ 5*)-REGULATION-SALE OF BREAD-OFFENSES-INTENT. Criminal intent is not an element of the offense created by Act June 1, 1898 (21 Del. Laws, c. 92), prohibiting the sale of bread by the loaf weighing less than one pound avoirdupois. [Ed. Note.-For other cases, see Weights and Measures, Cent. Dig. §§ 4-7; Dec. Dig. § 5.*] 2. WEIGHTS AND MEASURES (§ 5*)—SALE OF BREAD POWER. REGULATION WEIGHT-POLICE Act June 1, 1898 (21 Del. Laws, c. 92), prohibiting the sale of bread by the loaf weighing less than one pound avoirdupois, is a proper exercise of police power, and not unconstitutional for unreasonableness, as abridging the privileges and immunities of citizens, etc. [Ed. Note.-For other cases, see Weights and Measures, Cent. Dig. §§ 4-7; Dec. Dig. § 5.*] 3. WEIGHTS AND MEASURES (5*)-BREAD REGULATION OF SALE-"LOAF." The word "loaf," as used in Act June 1, 1898 (21 Del. Laws, c. 92), prohibiting the sale of bread by the loaf weighing less than one pound avoirdupois, does not mean a roll, twist, bun, or any form or shape of bread other than that which the term is ordinarily and popularly understood to mean. [Ed. Note.-For other cases, see Weights and Measures, Cent. Dig. §§ 4-7; Dec. Dig. § 5.*] George F. Huber was indicted for selling a loaf of bread weighing less than one pound avoirdupois, in violation of 21 Del. Laws, c. 92, approved June 1, 1898. Verdict of guilty. Argued before PENNEWILL, C. J., and CONRAD and WOOLLEY, JJ. Josiah O. Wolcott, Atty. Gen., and Armon D. Chaytor, Jr., Deputy Atty. Gen., for the State. Philip L. Garrett, for defendant. Robert G. Harman, James Saulsbury, David J. Reinhardt, and Robert H. Richards, all of Wilmington, representing other defendants similarly indicted. At the trial, after proving that the defendant was a baker, doing business in the city of Wilmington, and that, on the 23d day of August, 1913, he sold to one M., at the defendant's place of business, a loaf of bread weighing only 121⁄2 ounces, counsel for defendant sought to prove by the defendant that he was acting in good faith when he sold the prosecuting witness the loaf of bread; that he was endeavoring to comply with the law as to weight; that he did not know that the loaf in question was under weight, and had no intention to violate the said law. The Attorney General contended that the question of bona fides was immaterial; that if the defendant sold a loaf of bread of less weight than provided for by the statute, he was guilty under said statute. In a and the purpose and intent of the Legislature defeated. We sustain the objection to the question. The defendant then rested, and Mr. Saulsbury asked the court to instruct the jury to find a verdict of not guilty, because the act under which he was indicted (chapter 92, volume 21, Laws of Delaware) is unconstitutional, to wit, that it deprives the defendant of his property without due process of law, by limiting his right to freely contract for the disposition of his property; and further, that The intent enters into this case. "It is a the law is such an unreasonable regulation as maxim older than the law of England that to render it void, citing People v. Wagner, no man is guilty unless his mind be guilty." | 86 Mich. 594, 49 N. W. 609, 13 L. R. A. 286, Regina v. Allday, 8 Car. & P. 136. Brief of Mr. Harman. case charging cheating by false weights and measures, the intent enters into the case. Blanchard v. State, 3 Ind. App. 395, 29 N. E. 783; State v. Edward J. Fahey, 5 Pennewill, 585, 65 Atl. 260. "As a general rule, where an act is prohibited and made punishable by statute, the statute is to be construed in the light of the common law, and the existence of a criminal intent is essential." 12 Cyc. Law & Prac. p. 148. If the statute does not expressly or by necessary implication, exclude the intent, but is silent, in some states intent is material; in others it is not. The late English cases are now holding that to deprive one accused of an offense, of his defense of intent, the statute must clearly exclude it. Derbyshire v. Houlston, Q. B. Yr. 1897. PENNEWILL, C. J., delivering the opinion of the court. 24 Am. St. Rep. 141; City of Chicago v. Schmidinger, 243 Ill. 167, 90 N. E. 369, 17 Ann. Cas. 614; City of Buffalo v. Collins Baking Co., 39 App. Div. 432, 57 N. Y. Supp. 347. Mr. Chaytor, Deputy Attorney General, replied, distinguishing most of the authorities cited from the present case, in that they were based upon city ordinances and not upon statutes. (The court passed upon the motion in the charge to the jury.) PENNEWILL, C. J. (charging the jury). Gentlemen of the Jury: It is charged in this indictment that George F. Huber, the defendant, sold on the 23d day of August, 1913, to one William J. McKnight, a loaf of bread made wholly of wheat flour, that weighed [1] Without undertaking to distinguish less than one pound avoirdupois weight, in this case specifically from the Fahey Case, 5 violation of the act of assembly in that bePennewill, 585, 65 Atl. 260, we think the rea-half (volume 21, c. 92, Laws of Delaware). sons for allowing intent to be made a de- [2] We have been asked to direct you to refense in a liquor case do not exist in the case turn a verdict of not guilty, on the ground at bar. It is sometimes impossible for a liq- that the act under which this indictment uor seller to tell whether the person to whom was found is unconstitutional and void. he sells is 21 years of age or not. While It is urged by the defendant that the act is it may be a hardship on the baker, yet it is an arbitrary and unreasonable exercise of quite possible for him to tell when he sells the police power of the state by the Legisla a loaf of bread whether it weighs a pound ture, because it abridges the privileges and or not. We think the present case is more confiscates the property of the citizens enanalogous to the holly case, State v. Jack-gaged in the manufacture and sale of bread, without involving the health, morals or welson, decided in Sussex county a few years fare of the people. ago, and reported in 2 Boyce, 66, 88 Atl. 466, than to the Fahey liquor case. The words of the statute are: "If any baker or manufacturer of bread into loaves from wheat flour in whole or in part, or any other person, shall in this state sell or offer to sell to any person any such loaf of said bread that shall weigh less than one pound avoirdupois weight he, she or they, shall be guilty of a misdemeanor," etc. The material fact is whether the loaf at the time of the sale weighed a pound The statute was manifestly passed for the or not; and as before stated, while we real-protection of the general public, and we may ize it may be a hardship on the baker, yet we feel that under the law we are bound to hold that the bona fides is not an element in the case; and we feel clear that if intent is allowed to be a defense in a case of this kind, We have had very little time to consider this important question, but during that time have given it as careful consideration as was possible. We have reached the conclusion that the act in question was a reasonable and legitimate exercise of the police power, which in this day is given a very wide scope for reasons that are obvious, and that the act is, therefore, constitutional. say of the entire public, because bread is an article of universal use and necessity. Under its police power the state has as much right to protect its citizens against false weight, false measures, and other like methods of im dealing with the public in articles of food, as it has in matters affecting the health and morals of the people. Such was unquestionably the purpose of the act under consideration, and if it was not arbitrary or unnecessarily confiscatory in its effect, it is not open to any constitutional objection. The terms of the act may impose a hardship and risk on those who sell bread in the loaf, but the hardship and risk are unavoidable if the purpose of the law is to be recognized and made effective. It may be noted that the act does not undertake to fix or regulate the price of a loaf of bread. The seller is not restricted or interfered with in that regard. We are compelled by the plain and positive provisions of the act to hold that any one who sells bread in the form or shape of a loaf, as that term is ordinarily understood, which weighs less than one pound avoirdupois weight, violates the law and is liable to its penalty. And it does not matter whether the loaf is fresh bread or stale bread, because the law makes no exception and contains no qualification. As long as the article is in the form of a loaf it is covered by the statute, no matter what its condition may be. [3] But we think the statute, which is a very strict one, should be as liberally construed as possible. And we say, therefore, that the word "loaf," as used in the act does not mean a roll, a twist, a bun, or any form or shape of bread, other than that which the term is ordinarily and popularly understood to mean. We also say that the act does not make it impossible for the baker to dispose of his stale bread. While he cannot, under our construction, sell it by the loaf, he may nevertheless sell it in bulk and by weight. In our opinion he may divide a single loaf, and sell it by weight for an agreed price, as stale bread. The statute does not prohibit the sale of a part of a loaf, or of two or more loaves in bulk and by weight for such price as the purchaser may be willing to pay, provided it is so understood at the time. But we do hold, and are required to hold, that when bread is sold by the loaf, and in the form and shape of a loaf, the transaction comes clearly within the terms and contemplation of the statute, and is a violation of its provisions if the loaf weighs less than one pound avoirdupois weight. (4 Boyce, 264) STATE ex rel. WOLCOTT, Atty. Gen., v. KUHNS. (Superior Court of Delaware. New Castle. 1. PLEADING (§ 333*)-TIME FOR FILING. [Ed. Note. For other cases, see Pleading, Laws, c. 284, providing that where no affidavit Under Acts Gen. Assem. 1913, 27 Del. of demand is filed the plaintiff shall file his declaration, and in scire facias and ejectment cases the defendant his plea, on the first general that the first and third Mondays in each month rule day after the process is returnable, and shall be general rule days, special rules are unnecessary, and all rules to plead, excepting those issued from the bench, will be general rules. In conclusion we say, if you are satisfied beyond a reasonable doubt, from the evidence in this case, that the defendant sold to Wil-3. PLEADING (§ 333*)-TIME FOR FILING. liam J. McKnight on the 23d day of August, 1913, a loaf of bread manufactured from wheat flour in whole or in part, that weighed less than one pound avoirdupois weight, your verdict should be guilty, no matter what his intentions may have been, because the bona Cent. Dig. §8 1011, 1012; Dec. Dig. § 333.*] Where a pleading is filed on a day other [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 1011, 1012; Dec. Dig. § 333.*] 4. PLEADING (§ 333*)—TIME FOR FILING. [Ed. Note.-For other cases, see Pleading, Under Acts Gen. Assem. 1913, 27 Del. Laws, c. 284, providing that the first and third Mondays in each month shall be general rule days, general rule days will remain as fixed until changed by statute. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1011, 1012; Dec. Dig. § 333. rule day under the statute being less than two weeks distant. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 172-178; Dec. Dig. § 85.*] Quo warranto by the State, on relation of Josiah O. Wolcott, Attorney General, against Justus R. Kuhns. Opinion rendered on application by respondent for a direction as to the rule day on which he should file his plea. Rule to show cause (No. 73, March term, 1913) why leave should not be granted to file an information in the nature of a writ of quo warranto, returnable to certain day in said term, which 6. PLEADING (§§ 40, 85*)-TIME FOR FILING. Acts Gen. Assem. 1913, 27 Del. Laws, c. day of the succeeding May term. The rule was was thereafter continued to Monday the first 284, providing that where no affidavit of de- made absolute on the second Wednesday of the mand is filed plaintiff shall be required to file latter term. By leave of court, the information his declaration, and in scire facias and eject- which performs the function of a declaration was ment cases the defendant his plea, on the first filed at once. general rule day after the process is returnable, tion of the court as to the rule day upon which The respondent asked the direcis mandatory as to plaintiff whether the return he should file his plea, in view of a recent statupon the process shows service upon the defend-ute affecting general rule days. The court took ant or not, and whether the defendant by ap- the request under advisement, and subsequently pearance is in court or not, and requires the de- at the September term, 1913, announced the folfendant, if in court by service, to file his plea as lowing opinion and promulgated the following therein provided. [Ed. Note.-For other cases, see Pleading, Cent. Dig. 88 91-95, 172-178; Dec. Dig. §§ 40, 85.*] 7. PLEADING (§ 85*)-TIME FOR FILING. Where the defendant is not in court by service, but appears during the term to which the process is returnable, he shall in scire facias and ejectment cases, and any other case in which a declaration has been filed, be ruled to plead by the next general rule day, or, if there be not two full weeks between his appearance and the next general rule day, then by the second general rule day. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 172-178; Dec. Dig. § 85.*] 8. PLEADING (§ 333*)-TIME FOR FILING. When once begun, pleadings shall continue under general rules to general rule days, without regard to term time or vacation. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1011, 1012; Dec. Dig. § 333.*] 9. PLEADING (§ 333*)-TIME FOR FILING. As such statute provides only for cases in which no affidavit of demand is filed, it leaves open for direction by the judges the manner and time of pleading in cases in which affidavits of demand are filed. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1011, 1012; Dec. Dig. § 333.*1 10. PLEADING (§§ 40, 85*)-TIME FOR FILING. In a case in which affidavits of demand are filed, and which does not go to judgment thereon at the first or a succeeding term, the plaintiff must to file his narr., and in appropriate cases the defendant his plea, on the next general rule day after the affidavit becomes ineffective if two full weeks intervenes, and if not then on the second general rule day, and the pleading shall then continue in the two weeks intervals contemplated by the statute. [Ed. Note.-For other cases, see_ Pleading, Cent. Dig. 88 91-95, 172-178; Dec. Dig. §§ 40, 85.*] 11. PLEADING (§ 85*)-TIME FOR FILING. rules: "Sections 6 and 7 of rule VIII of Superior Court Rules are annulled and in their stead the following rules are promulgated by the Superior Court on this fourth day of October, A. D. one thousand nine hundred and thirteen: in each month shall be general rule days. "7. Rules for Pleading. (1) In all cases in which no affidavit of demand is filed, the plaintiff shall be ruled to file his declaration on the first general rule day after the original process is returnable, regardless of service upon or appearance by the defendant, or non pros. "(2) In scire facias cases in which no affidavit of demand is filed, in ejectment cases, and in all cases in which affidavits of demand are not filed but in which declarations are filed on or before the return of the process, the defendant shall be ruled to plead on the first general rule day after the original process is returnable, if service be had, or judgment; and if service be not had, then upon the next general rule day following a period of two full weeks after appearance or return of service upon a succeeding writ, or judg ment. "(3) If an affidavit of demand filed in any case, ceases for any legal reason to be the effective means of procuring judgment thereon, the plaintiff shall be ruled to file his declaration in that case on the next general rule day following a period of two full weeks after the day upon which the affidavit of demand becomes ineffective, or non pros.; and in scire facias cases in which an affidavit of demand has been filed, the defendant shall be ruled to plead on the next general rule day following a period of two full weeks after the day upon which such affidavit of demand becomes ineffective, if the defendant is in court upon service or by appearance, and if not, then upon the next general rule day following a period of two full weeks after appearance or return of service upon a succeeding writ, or judgment. "(4) General appearance for the defendant in any case in which the return shows no service upon the defendant, shall be made by counsel in the presence of the prothonotary or his deputy, and the date upon which such an appearance is entered shall be noted by the prothonotary or his deputy upon the record of the case. Where a rule to show cause why leave should not be granted to file an information in the nature of a quo warranto became absolute on the second Wednesday in May, and by leave of the court the information was immediately filed, the respondent should file his plea on the first general rule day in June; the next general "(5) When the declaration contains a count in indebitatus assumpsit, or debt on simple contract, the defendant shall not be required to plead until the plaintiff shall have filed full particulars of his demand under such count. The defendant may plead without a rule, and there- | rule narr. by the first rule day in vacation, or by waive the statement of particulars. non pros. "(6) Parties shall be obliged to take notice of all rules expirable on general rule days. Such rules shall, if not complied with, be considered as absolute, and the prothonotary shall sign judgment according to the rule. "(7) When parties are in court and pleadings are once begun they shall continue under general rules to general rule days, without regard to term time or vacation. Both parties shall be entitled to rules for further pleading, until issue be joined, or non pros., or judgment, according to the cases. Either party may add the similiter." Argued before PENNEWILL, C. J., and WOOLLEY and RICE, JJ. Saulsbury & Morris, of Wilmington, for relator. Daniel O. Hastings, of Wilmington, for respondent. WOOLLEY, J., delivering the instruction of the court. At the March term of the Superior Court the relator obtained a rule upon the respondent to show cause why leave should not be granted to file against him an information in the nature of a writ of quo warranto. The rule was made returnable at a certain day in that term, and was thereafter continued to the ensuing May term, which began on the first Monday in May. After a further continuance, the rule was made absolute on this, the second Wednesday of May. Leave being granted, the relator at once filed his information, which in our practice partakes of the nature and performs somewhat the function of a declaration. Whereupon, the respondent asked the direction of the court as to the rule day upon which, under a recent change in the law, he should file his plea. [1] It is provided by a statute of this state (Rev. Code 1852, amended to 1893, p. 789, c. 106, 1), that: "The judges of the Superior Court shall have power, by any rules to be * by them made, *to make such alterations in the mode of pleading in said court, and in the mode of entering and transcribing pleadings, judgments, and other proceedings in actions at law, as to them may seem expedient." The statute that confers authority upon the judges to make and amend rules regulating the time and manner of pleading was amended by an act of the General Assembly of 1913 (chapter 284, vol. 27, Laws of Del. p. 820), by adding thereto the following language: "And provided further, nevertheless, that in all cases, in which no affidavit of demand is filed, the plaintiff shall be required to file his declaration and, in scire facias and ejectment cases, the defendant, his plea, on the first general rule day after the process is returnable; and provided further, that the first and third Mondays in each month shall be general rule days." The effect of this amendment is to annul section 6 of the rule so far as it applies to a certain class of cases and to compel a change of section 7 of the rule so that the rules for pleading in all cases and under all circumstances may have the dispatch contemplated by the statute and a consistency necessary to a system. [2, 3] Under the rules of the Superior Court previously quoted, parties were required to plead under general or special rules, a general rule requiring the pleading to be filed on the next general rule day after the issuance of such a rule, if the period of fifteen days elapsed between the two dates, and if not, then on the second general rule day thereafter, and a special rule requiring the pleading to be filed upon the expiration of fifteen days from the issuance thereof. So under these rules, there prevailed a policy that in rules that issued of course, whether general or special, there should always be a period of notice of fifteen days, which is Under the authority conferred by this stat- equal to the shortest notice of the special ute, the judges of the Superior Court have rule, before an adverse party could be comfrom time to time promulgated rules direct-pelled to plead. As the statute has increased ing the manner and fixing the time at and the general rule days in the month from one within which, pleadings in actions at law or two, and has correspondingly shortened shall be filed. The last of these rules pro- the periods for pleading, it has taken from nounced by the court are sections 6 and 7 the special fifteen-day rule the reason for of Superior Court rule 8, which direct that: longer existing. Therefore, there will here"Sec. 6. The first Monday in each month shall after be no special fifteen-day rules to plead, be general rule day in all of the counties. In all rules to plead excepting such as are isno case, however, shall the plaintiff be required sued from the bench, will hereafter be gento file his declaration, or the defendant his plea, eral rules. But as the period of notice conuntil the second rule day herein prescribed next templated by the statute is about two weeks, after the day to which the process is returnable. "Sec. 7. (1) Every rule shall be filed at least the court will continue the policy of notice fifteen days before the rule day, whether general that prevailed under the old rules and hold or special, on which it expires, exclusive of both that when a pleading is filed on a day other days. than a general rule day and when there cannot elapse two calendar weeks between the date of the issuance of the rule and the next general rule day, the rule to plead shall issue to the second general rule day, thereby insuring to the pleader of the full two weeks of notice and opportunity contemplated by the (2) Either party shall be entitled to special rules for pleading, expirable on any day not less than fifteen, by giving written notice to the adverse party, or his attorney, of such rule. "(3) "(4) In all actions (except scire facias and ejectment) when the defendant is in court, in per |