annulment of the marriage and not for divorce. In other words, the petitioner has mistaken her form of action.

a part of the property, that was stolen, and that the same was received or concealed by the accused with a felonious intent, that is,

It is a rule of this court never to allow with an intent either to convert them to their amendments to affidavits. own use or an intent that the receipt and concealment should operate to the advantage of the thief.

In Sindowski v. Sindowski, 2 Boyce, 547, 84 Atl. 805, the court said: "Leave will not be granted to amend petitions in divorce cases." The verification required by the statute goes to the facts stated in the petition and not to the prayer thereof and this fact distinguishes this case from the Sindowski Case to which we have referred.

[2] If you should believe from the evidence that Homer C. Wiggins brought bags of stolen money to the house where the defendants lived, and buried them or any of them upon the premises, where they were afterwards found by the police officers, without assent, acquiescence, or participation of either of the defendants, the defendants should be acquitted on the charge or indictment of re

Section 15, chapter 112, page 850, Revised Code, provides that "whenever a plaintiff in an action shall have mistaken the form of action suited to his claim, the court, on mo-ceiving or concealing the coin. If, however, tion, may permit amendments to be made, on such terms as they shall judge reasonable." We think the motion to amend should be granted. Eby v. Concord Heights Co., 90 Atl. 40.

The amendment is allowed.

(4 Boyce, 545)

STATE v. GOLT et al.

the defendants or either of them knew the money was stolen and was buried in their yard by Homer C. Wiggins, or the facts and circumstances with which they were conversant were such as to reasonably charge them with further concealing or preventing the discovery of the stolen coins by proper authorities or persons, then they may be held, under the statute, construc

(Court of General Sessions of Delaware. New tively to have concealed the same and be

Castle. Nov. 10, 1913.)

1. RECEIVING STOLEN GOODS (§ 3*)-INTENT.

For defendants to be guilty of receiving or concealing stolen goods, their receipt or concealment must be with a felonious intent, either to convert them to their own use, or that the receipt or concealment shall operate to the advantage of the thief.

[Ed. Note.-For other cases, see Receiving Stolen Goods, Cent. Dig. § 5; Dec. Dig. § 3.*] 2. RECEIVING STOLEN GOODS (§ 4*) STRUCTIVE CONCEALMENT.

CON

While defendants are not guilty of receiving or concealing stolen money merely because of the thief, without their assent, acquiescence, or participation, burying it on their premises, yet they, knowing thereof, or from the facts with which they are conversant being reasonably chargeable with further concealment or preventing discovery of it. may be held constructively to have concealed it.

[Ed. Note.-For other cases, see Receiving Stolen Goods, Cent. Dig. § 6; Dec. Dig. § 4.*] Indictment against Mary E. Golt and another for receiving and concealing stolen goods, to wit, money. The jury disagreed.

found guilty if you believe the evidence warrants it.

The jury disagreed.

(3 Boyce, 544) STATE ex rel. BRUMLEY V. JESSUP & MOORE PAPER CO. (Supreme Court of Delaware. Jan. 18, 1910.) 1. MANDAMUS (§ 187*)-DECISIONS REVIEWABLE "JUDGMENT" OR "PROCEEDING."

Refusal to quash the return to an alternative writ of mandamus ordered by the court denying a motion to quash the rule to show cause why a peremptory writ should not issue and dismiss the petition is a "judgment" or "proceeding," within Const. art. 4, § 12, conferring on the Supreme Court jurisdiction to issue writs of error to the Superior Court, and to determine matters in error in the judgment and proceeding of the Superior Court.

[Ed. Note.-For other cases, see Mandamus, Cent. Dig. 88 427-437; Dec. Dig. § 187.*

For other definitions, see Words and Phrases, vol. 4, pp. 3827-3842; vol. 6, pp. 5631-5638; vol. 8, pp. 7695, 7696.]

Argued before WOOLLEY and RICE, JJ. 2. MANDAMUS (§ 164*)-PROCEEDINGS-ISSUES. Armon D. Chaytor, Deputy Atty. Gen., for The return of defendant to the alternative the State. Robert G. Harman, of Wilming-writ of mandamus ordered on the court refuston, for defendant Golt. Walter J. Willis,ing to quash the rule against defendant to show of Wilmington, for defendant McDermott.

RICE, J. (charged the jury in part as follows). [1] For you to find a verdict of guilty against the defendants you must find from the evidence (1) that the coins were stolen, (2) that the coins were the property of the Wilmington & Philadelphia Traction Company, (3) that the defendants knew at the time they received or concealed the coins that they were stolen, (4) that the property received or concealed was the property, or

cause why a peremptory writ should not issue and dismiss the petition is conclusive on the facts stated in the return, and the question is whether the statements therein are sufficient in law to prevent a peremptory writ.

[Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 344-360; Dec. Dig. § 164.*] Error to Superior Court, New Castle County.

Mandamus by the State, on relation of Horace T. Brumley, against the Jessup & Moore Paper Company. There was a denial of a motion to quash the return to the alter

native writ of mandamus, and relator brings | court of this state in Union Church v. Sanderror. Motion to dismiss writ of error over- ers, 1 Houst. 100, 63 Am. Dec. 187. ruled.

This was a motion to dismiss the writ of In the Sanders Case a petition for a writ error on the ground that the refusal of the of mandamus was filed against Union court below to quash the return to the alternative writ of mandamus which had been Church. Upon this petition a rule was obawarded by the court below was not a judg-tained to show cause why a writ of perment or proceeding reviewable by the Supreme Court on a writ of error. The motion was dismissed, and the case proceeded to a hearing and adjudication on the merits. See 1 Boyce, 379, 77 Atl. 16, 30 L. R. A. (N. S.) 290.

We think it wholly unnecessary to review the authorities cited by counsel for the de-leged and to review which the writ of error fendant in error from other states because it seems to us that the single question raised in

While the case of Church v. Sanders rules overruled.

1. COVENANTS (§ 27*)—"CONTRACT INTER ParTES"-SIGNATURES.

a

The fact that a covenant is signed by but one party does not render it a deed poll, or give a legal interest to all contemplated by its terms, if the instrument is inter partes; "contract inter partes" not meaning a contract restricted to the parties signatory thereto, but one that relates to the parties between whom the promises are made.

[Ed. Note.-For other cases, see Covenants, Cent. Dig. § 26; Dec. Dig. § 27.*] 2. COVENANTS (§ 29*) — PARTIES-LEGAL INTEREST-RIGHT TO SUE.

In a sealed instrument, the parties named as such in the premises are the only parties having a suable interest, no matter for whose benefit the deed is made, unless other parties are expressly given that right in the remainder of the deed, but such right cannot be implied.

[Ed. Note. For other cases, see Covenants, Cent. Dig. § 29; Dec. Dig. § 29.*] 3. GUARANTY (§ 82*)-COVENANTS INTER PAR

TES RIGHT TO SUE.

An instrument under seal: "Whereas, the said B. has negotiated a loan through the said J. from the R. Bank: Now, therefore, B. does agree to guarantee the payment of said loan and to indemnify J. and the R. Bank"is an agreement inter partes between B. and J., and the bank is not a party with a legal or suable interest, because not mentioned in the premises as a party, and because not being expressly given a suable interest in the body of the instrument.

[Ed. Note. For other cases, see Guaranty Cent. Dig. § 97; Dec. Dig. § 82.*]

Action by Garrett S. Jones and the Rahway National Bank, for the use of the bank, against Francis N. Buck. On special demurrer to declaration. Sustained.

thirty-seven thousand (37,000) shares of the capital stock of the Old Mexico Mining Company is pledged as security,

"Now, therefore, for and in consideration of the sum of one dollar good and lawful money of the United States, receipt whereof is hereby acknowledged, the said Francis N. Buck has stipulated and agreed and hereby does stipulate and agree to guarantee the payment of the said loan pursuant to the terms thereof, and to indemnify and save harmless the said Garrett S. Jones and the from all and all manner of loss that he or said the Rahway National Bank, of and said bank may sustain, by reason of said

loan.

"In witness whereof, the said Francis N. Buck has signed this agreement and affixed his seal hereto.

"Francis N. Buck. [Seal.] "In presence of Francis H. Wilson."

To the declaration the defendant has de

murred specially, and maintains that the instrument sued upon is an agreement inter partes; that the parties to the agreement are Francis N. Buck and Garrett S. Jones, who, and who alone, are described as such in the premises; that the covenant made by the former runs only to the latter, though made in part for the benefit of another; that an action at law upon a breach of the covenant may be maintained only by the one to whom it is made, and therefore for causes of demurrer, says:

(1) That the said the Rahway National Bank cannot in law maintain a joint action with the said Garrett S. Jones, in covenant, for the supposed breaches of the said agree ment.

(2) That the said the Rahway National Argued before PENNEWILL, C. J., and Bank may not in law bring or maintain any WOOLLEY, J.

Saulsbury & Morris and James I. Boyce, all of Wilmington, for plaintiffs. Ward, Gray & Neary, of Wilmington, for defendant.

WOOLLEY, J. (delivering the opinion of the court). This is an action of covenant instituted jointly by the plaintiffs against the defendant upon an instrument of writing signed and sealed by the defendant alone. The averments of the declaration, excepting the allegation of breaches, embrace and are restricted to the undertakings of the defendant as made in the writing sued upon, which is in the following language:

"Memorandum of agreement made this 24th day of April, 1908, by and between Francis N. Buck, of Wilmington, Delaware, party of the first part, and Garrett S. Jones, of New Brunswick, New Jersey, party of the second part, witnesseth that:

action in covenant for the supposed breaches of the said agreement.

The plaintiffs maintain that the instrument sued upon, being an agreement under seal, is a covenant, and being executed by the covenantor alone, wherein he engages to do a particular thing for two persons therein named, is not an agreement inter partes, but partakes rather of the nature of a deed poll, and therefore all the parties therein beneficially named, and for whose protection the engagement or covenant was made, may in law maintain an action for breaches thereof, and may maintain such an action jointly.

There is no question that the instrument sued upon is a covenant, that is, a written agreement under seal, whereby the covenantor promised and engaged to indemnify and save harmless both the person and the corporation therein named from loss arising "Whereas, the said Francis N. Buck has from the transaction therein described. There negotiated a loan of nine thousand dollars is, however, a question whether the promise ($9,000) through the said Garrett S. Jones, or engagement of the covenantor was made from the Rahway National Bank, for which to and with the person or the corporation

named, or to and with both of them, and whether both the person and the corporation named in the agreement are parties to the agreement, and as such have a legal interest in the covenant and such a legal privity with the covenantor as to enable them, either severally or jointly, to maintain an action thereon for a breach thereof.

The general proposition of law that an action on a covenant will not lie in favor of a person not a party to it, although the covenant was made for his benefit (11 Cyc. 1057), is not questioned by the plaintiffs; nor do the plaintiffs dispute the early pronouncement of our own courts upon this subject (Townsend v. Townsend, 5 Har. 127, 128), that "the right of action follows the interest, and the party who has a legal interest in a covenant must sue, though the beneficial interest is in another. * * * If a deed be inter partes, as between A, of the first part and B. of the second part, C., if not expressly named as a party, cannot sue thereon, though the contract purports to have been made for his sole advantage, and contain an express covenant with him to perform an act for his benefit." In fact it is admitted by the plaintiffs, that if the contract sued upon is a contract inter partes, that is, between the parties described as such, then the Rahway National Bank, not being a party, though beneficially contemplated by the covenant, cannot maintain this action for a breach thereof. The issue raised by the demurrer, therefore, may be determined by ascertaining whether the agreement is an agreement inter partes, or an agreement not inter partes but in the nature of a deed poll, where the obligation is reciprocal and where a stranger may sue if he shows a legal and not merely a beneficial interest. 1 Chitty's Pl. 3, 4.

will be presently considered. If the premises do not disclose who are the parties, or if there are no premises to the contract, then the existence and identity of the legal parties may be sought and found elsewhere in the contract.

In the case of How v. How, 1 N. H. 49, the instrument sued upon was without premises descriptive of the parties, and was signed by the obligor alone, and began with the usual formula of a deed poll, namely, "Know all men," etc., "that I, Asa How," etc., "in consideration of two thousand dollars to me paid by Mark How," etc., "do give, grant," etc., "unto said Mark How, his heirs," etc., “a certain farm," etc.; "and I, the said Asa How, do covenant with the said Mark How, his heirs," etc., "that I will” (among other things) pay the debts of the said Mark How, and render certain support to him and his wife Anna during his life, and thereafter to his wife Anna during her life, in consideration of a waiver by her of her dower.

*

*

* *

After the death of Mark, Anna, his widow, brought an action on the deed for a breach of the covenant made therein for her benefit. The court had no trouble in finding who were the parties to the agreement, though it was without premises and was signed by but one of them, nor was the court uncertain as to the want of a legal interest in the widow upon which to found the action. The court said: "The question to be determined in this case is, whether Anna How can maintain covenant in her own right on the deed which she produces in court? The nature of the transaction is perfectly evident. Mark How, wishing to secure a maintenance for himself, his wife and infant son, had conIveyed to Asa his farm; in consideration of the conveyance, Asa contracted with Mark to support him and his wife during Mark's life, and the infant until he should arrive at twenty-one years of age, pay Mark's debts then contracted, and the funeral expenses of him and his wife. But Anna How had not concurred in the conveyance of the farm. She still retained her right of dower. A contract inter partes does not mean a Asa therefore contracted with Mark that if contract restricted to the parties signatory his wife should survive him, and should thereto, but is a contract that contemplates choose 'a living' in lieu of dower, he would and relates to the parties between whom the maintain her. To secure the performance of promises and undertakings are made, and em- this contract, Asa reconveys the land to Mark braces those to whom as well as those by in mortgage. The whole transaction is most whom they are made. When a contract is manifestly between Mark and Asa. Mark signed by both parties to it, whether thereto-pays the consideration, the mortgage is given fore described as such or not, the inter-rela- to him, the contract begins with the declaration of the parties, of course, is obvious; but when the contract is signed by but one of them, it may be a contract none the less, and may disclose the existence and identity of the other party with all the certainty of a signature.

[1] The first suggestion in support of the latter proposition is that, as the instrument is signed by but one of the parties, that is, by the covenantor alone, it is in the nature of a deed poll, whereby the undertakings of the covenantor, thus singly expressed, extend a legal interest in the covenant to all contemplated by its terms.

[2] If such a disclosure of the parties is made by a description of them in the premises, the inter partes character of the con

tion that it is 'the true intent and meaning of the grantee,' Mark, etc. Anna How is evidently a total stranger to the whole contract, and when Asa engages to furnish her certain articles, the contract must be considered to be with Mark, who paid the consideration. No authority ancient or modern can be found, which will warrant any other construction. 10 Johns. [N. Y.] 47, Gardner v. Gardner.