Volume 1 — Appeals, District of Columbia

Hearing on writ of error to the Police Court. Statement of the case by Mr. Justice Shepard : On March 3, 1893, Congress passed an act which took effect from passage, regulating the sale of liquors in the Dis-. trict of Columbia, and the manner of obtaining license therefor. -27 Stats. 563. Before this time the sale of liquors had been regularly licensed under the provisions of an act of the old Legislative Assembly of the District, enacted August 23, 1871.

Hearing on appeal from a judgment of the Supreme Court of the District of Columbia, holding a law term, sustaining a demurrer to each of the two counts of plaintiff’s declaration. Statement of the case by Mr. Justice Shepard : This is a suit by John A. Gray, as administrator of the estate of William Bowen, deceased, to recover interest upon a claim established by him, in the Court of Claims against the District of Columbia, the principal of which has been paid.

<p>Hearing on appeal from an order of the Supreme Court of the District of Columbia, held for Orphans’ Court business.</p> <p>Statement of the case by Mr. Justice Morris :</p> <p>This case comes up on appeal from an order of the special term of the Supreme Court of the District of Columbia, held for Orphans’ Court business, whereby an administrator was required, on the petition of his surety, to bring into court certain money of the estate of his decedent found to be in his hands.</p> <p>It appears from the record that on November 12, 1886, one Vincent L. Ourdan was appointed administrator with the will annexed of Mary A. McKnight, and gave bond for the faithful performance of his duty as such, with Emma J. McKnight and another, as sureties. On December 17, 1886, the surety, Emma J. McKnight, for reasons deemed satisfactory by her and apparently found to be satisfactory by the court, [filed her petition under the Testamentary Act of Maryland, of 1798, in force in the District of Columbia (Act of 1798, Chap. 101, Subch. 14, Sec. 11) asking to be released from her suretyship, or that the administrator be required to give counter security. On April 1, 1887, the court required the administrator to give the counter security demanded; and on the administrator’s failure so to do, an order was made, on April 22, 1887, requiring him to deliver to the surety the property remaining in his hands as administrator, to be by her administered according to law. This order also, the administrator failed to obey.</p> <p>After various other proceedings not necessary to be here enumerated, including among them a reference to the auditor and a report by him unfavorable to the administrator, the court, on August 1, 1888, made an order, requiring the administrator to deposit with the register of the court, the sum of $293.79, found to be in his hands, of the property of the deceased and the sum of $42.75, for costs of court. From this order the administrator prosecutes the present appeal.</p> <p>The statutes nowhere confer jurisdiction upon the Orphans’ Court to pass orders such as that appealed from. It is expressly enacted that “ The said Orphans’ Court shall not under any pretext of incidental power or constructive authority exercise any jurisdiction whatever not expressly given by this act or some other law.” Kilty’s Stat, Act 1798, Ch. 101, Subch. 15. This prohibition has always been respected in Maryland. Townshend, Admr., v. Brooke, 9 Gill, 90; Connor v. Ogle, 4 Md. Ch. 425, 451, 452; State, use, etc., v. Warren, 28 Md.,- at 355 ; Bowie v. Ghiselin, 30 Md., 553; Norment v. Brydon, 44 Id. The very point in question was decided in Maryland in 1843, and it was held that the Act of 1798, Ch. 101, conferred jurisdiction to coerce the delivery of property, or payment of money by the representative of an administrator to an administrator d. b. n., only in case the property or money, belonged specifically to the deceased while alive. Gardner et al., Ex'rs v. Simmes, 1 Gill, 425. The Supreme Court has held to the same effect. U. S., use, etc., v. Walker, 109 U. S., 258. So while the court might lawfully order, as it did, that property of the decedent remaining in the administrator’s hands should be delivered by him to his surety, it had no right to order him to bring in money which had come to him from sales of such property. Such property was fully administered, and as to its proceeds the administrator was a mere debtor to the estate. 109 U. S., 258, U S., use, etc., v. Walker. The right to order administrators to bring money into court was first granted in Maryland by the Act of 1831, Ch. 315. Mayer’s Dig., page 682; Test. Law of Md., page 23; Bowie v. Ghiselin, 30 Md., 553.</p> <p>The contention that the money in dispute was administered assets has no place in the case. The question of ordering the delivery over of administered assets can arise only in the case of an administrator de bonis non. But such is not this case; it is a case of counter security ordered without the removal of the administrator. The very section of the law invoked as the foundation for the proceedings herein, provides in terms for the continuance in his trust of the administrator, and no order in the case purports to have removed him. The law has been changed in Maryland since the assumption by Congress of authority over the District of Columbia. It was provided by the act of 1829, c. 216, sec. 1, that on the failure of the administrator to give counter security, not that he should deliver the property of the decedent in his hands to the complaining surety, but, that his letters should be revoked; and even then that he should pay over to the new administrator everything, including money due by him as administrator. Hink., Test. Law, sec. 655. Nor is the case in anywise affected by secs. 974-978, R. S. D. C. Those sections relate exclusively to cases in which the court may require, not counter security to a surety, but, additional security for the administration; in default of giving which the administrator may be removed and an administrator d. b. n. appointed; to whom, as the law says in terms, only “unadministered” assets are to be delivered over. Sec. 976.</p> <p>The contention of the appellant that the administrator cannot be required to deliver over money, the proceeds of property of the decedent, amounts to this: An administrator having in his hands property of his decedent may convert it into money. After such conversion the surety may conceive himself in danger and demand counter security. The court may order such counter security, failing the giving of which the court may order unadministered assets only (which would not include such money), to be delivered over.</p> <p>This would leave the administrator in control of the money. And what would be the surety’s remedy? At the most, to recover from himself one-half of the wasted assets. The law will work out no such absurdity.</p>

<p>Mechanics’ Liens ; Notices of Lien ; Bills in Equity, necessary Parties to.</p> <p>1. One of the main objects of the Mechanics’ Lien Law, is to furnish all interested in property subject to a lien, record notice of the extent of the claim and the intention to enforce a specific lien therefor ; and a notice of lien made out against the person who was owner of the property at the time the right to assert the claim accrued, is a substantial compliance with the provisions of the law in this respect.</p> <p>2. An electric passenger elevator is both an engine and a machine, within the meaning of that provision of the Mechanics’ Lien Law, subjecting a building to a lien “ for any engine, machinery,” &c., placed in such building.</p> <p>3. S., the owner of a building, contracted with F. & M. to place therein a passenger elevator. Subsequently, S. sold the property to L., and the elevator remaining unpaid for, F. & S. filed a notice of their intention to assert a lien against the property. L. thereupon filed an undertaking, as provided by the Mechanics’ Lien Law, for the release of the property from the lien claimed, with himself as principal and three others as sureties. A bill was filed by F. & M. against L. and the sureties to enforce the lien, praying for a personal decree against the defendants. Error being assigned that S. was a necessary party to the bill, Held: That S. was not a necessary party, no process or decree against him being prayed for, and it not being shown that he was bound by covenant in his deed against incumbrances, or that he was in any way interested in the property.</p>

Hearing on bill and answer certified to the General Term of the Supreme Court of the District of Columbia to be heard in the first… Held: that if the cause of action of the mortgagor against his vendee, be barred by the statute of limitations, the remedy of the mortgagee against the vendee will be likewise barred. “The mortgagee can only be subrogated to an existing remedy of his debtor, the mortgagor, upon a legal, existing stipulation.” Biddel v. Brizzolara, 64 Cal.,…

Hearing on writ of error to the Police Court. Statement of the case by Mr. Justice Morris : James Dempsey, the plaintiff in error, was arraigned in the Police Court of the District of Columbia upon information filed by the special assistant attorney for the District of Columbia, in the name and on behalf of the District, for a violation of one of the provisions of the act of Congress of March 3, 1893, entitled “An act regulating the sale of intoxicating liquors in the…

Hearing on appeal by the complainants from a decree of the Supreme Court of the District of Columbia holding an equity term, sustaining a demurrer to their bill. Statement of the case by the Chief Justice : The bill in this case was filed for the purpose of having certain deeds declared void and without effect as against the complainants, and to have a certain deed in the proceedings mentioned reformed, so as to vest an estate in the complainants.

Hearing on appeal from an order of an equity term of the Supreme Court of the District of Columbia, overruling a disclaimer as insufficient. The facts are stated in the opinion.

Hearing on appeal from a decree of the Supreme Court of the District of Columbia, holding an equity term. The bill of complaint was filed to procure the cancellation of certain promissory notes, secured by deed of trust upon real estate, on the ground that the notes had been paid, and prayed for an injunction to restrain the consummation of a sale under the deed of trust. Upon a preliminary hearing the trial justice signed a consent decree vacating the sale.

Hearing on a demurrer to a bill in equity, transferred to this court under the act of Congress of February 9, 1893, 27 Stats., 434, from the General Term of the Supreme Court of the District of Columbia, where it was pending at the date of the act upon certification from an equity term of that court to be heard in the first instance. The facts are set forth in the opinion. 1.

<p>Powers; Lost or Destroyed Wills ; Trustees; Costs; Deeds, Erasures in, Recordation of.</p> <p>1. In 1866 certain real estate in the District of Columbia was conveyed to a trustee, in trust for the sole use and benefit of a married woman, with power to the trustee to convey to such uses as the cestui que tise should by deed or will appoint, and, in default of such appointment, to convey to her heirs at law. In 1886 the cestui que ■use died. Her heirs at law, in 1890, filed a bill in equity for the execution of the power and the sale of the real estate, the subject of the power. The husband of the ceshd que use, by way of defense, asserted that his wife had made a will giving or appointing the property to him ; that the will had been destroyed in the lifetime of the testatrix, and he offered to prove its execution and contents. The testimony showed that the husband had administered upon his wife’s estate, and that no effort had ever been made to obtain probate of, or to otherwise establish the alleged will: Held, That before setting up such a will as the foundation of a right or claim, it should have been probated or other appropriate proceedings taken to establish its contents and validity.</p> <p>2. In such a case, where the testimony taken wholly fails to prove the • contents of the alleged will, and is very questionable as to the legal execution of the paper, the court will not direct that the bill be retained to enable the defendant to take the necessary and appropriate proceedings to have the will established and admitted to probate.</p> <p>4. Where it is the duty of a trustee to execute a power, it is not discretionary with him whether he will execute it or not. The principle applicable to trusts will be adopted, and his refusal, negligence, accident or other circumstances will not be permitted to disappoint the interests of those for whose benefit he was clothed with the power.</p> <p>5. But, although the right of a cestui que trust to require a conveyance from his trustee may be quite clear in the view of the court, yet if the trustee in refusing to convey has acted bona fide and on apparent circumstances of doubt as to the right of the cestui que trust to receive the conveyance, he will not be charged with the costs of a suit brought to compel a conveyance.</p> <p>6. Where a deed is executed and delivered, the interest in the property described in the deed, which thereupon passes and becomes vested in the grantee, is not divested by a subsequent unauthorized obliteration and erasure by the grantor of his signature when the deed is sent to him for correction of a supposed defect in the acknowledgment.</p> <p>7. The main object of the statutes requiring deeds of conveyance to be acknowledged and recorded, is to prevent the practice of fraud upon creditors and purchasers, and to furnish means of notice and protection to innocent third parties.</p> <p>8. In this District, as between the parties, the failure to record a deed does not affect its validity.</p>

<p>Statute of Limitations ; Acknowledgment and New Promise ; Partnership.</p> <p>1. There can be no better evidence of a subsisting indebtedness with the indication of willingness to pay it, which constitutes a new promise sufficient to avoid the bar of the statute of limitations, than payment of money by the debtor on account of the indebtedness.</p> <p>2. A promise to pay an indebtedness at any time the creditor should need it, even if the debtor had to sell stock to do it, is not a conditional promise to pay, but is an acknowledgment and new promise, sufficient to avoid the bar of the statute of limitations.</p> <p>3. One partner, during the existence of a partnership, entered into an agreement with a third party, without the knowledge of his co-partner, to lease the property in which the partnership business was conducted. The transaction was discovered by the second partner, who notified the other of his conditional acceptance of the proposed arrangement, but reserved the right to repudiate it; whereupon, the agreement was surrendered by the partner making it: Held, That the advantages sought or gained by the first partner in his secret negotiations for the lease, were too vague and indefinite to form the basis of compensation to his co-partner in a partnership accounting.</p>

Hearing on appeal by the complainant from a decree of the Supreme Court of the District of Columbia, holding an equity term, dismissing a bill of complaint. Statement of the case by Mr. Justice Morris : This is a suit to have a deed absolute on its face decreed to be a mortgage; to have a conveyance made by the grantee in the deed declared void, and for a settlement of the rights of the parties in the premises.

Hearing on appeal by the complainants from a decree of the Supreme Court of the District of Columbia, holding an equity term, dismissing bill.

<p>Wills ; Survivorship ; Joint Tenancy ; Legacies Chargeable Upon Real Estate.</p> <p>1. Words of survivorship in a devise after a particular estate, in the absence of a clear intention to the contrary, refer to the death of the testator and not to the termination of the particular estate.</p> <p>2. Where a devise is to a class of heirs, ojne member of which is disqualified from taking by reason of having been an attesting witness of the will, the estate vests as an entirety in the members of the class capable of taking it, as if the disqualified member did not exist.</p> <p>3. And the estate so vests whether the devise be to the class as joint tenants or tenants in common.</p> <p>4. If a devise be to the surviving children of the testator generally, without any expression of an intent that they shall take as tenants in common, they take as joint tenants, with the incidental right of survivorship among them.</p> <p>5. Where a pecuniary legacy was made payable out of the estate of the testator after the death of his wife, who was sole executrix, devisee and legatee, and the personal estate was of small amount and of a character likely to be rendered valueless by the life-long use by the widow : Held, That the legacy was a charge upon the real estate after her death.</p>

<p>New Trial; Verdict, Remittitur of.</p> <p>1. It is within the sound discretion of a trial judge to set aside the verdict of a jury and grant a new trial, and an appellate court will not disturb his action unless it clearly appears that he.exceeded the bounds of that discretion.</p> <p>2. It is only in those cases where the findings of a jury may be separated into distinct parts, or where errors readily discernible and separable may have increased a finding, that the court will direct or permit a reinittitur of a part of the verdict.</p>

Hearing on a motion by the defendants for a new trial on a bill of exceptions in an action upon three promissory notes. The Court in its opinion stated the case as follows: The declaration in this case contains counts upon three several promissory notes, made by Green, payable to Presbrey & Green, partners, and by Green indorsed in the name of the partnership of Presbrey & Green, and delivered to Brand, who indorsed the same to the plaintiff.

Hearing on appeal by the complainant from a decree of the Supreme Court of the District of Columbia, holding an equity term, dismissing a judgment creditor’s bill. The facts are sufficiently stated in the opinion.

<p>Charge and Instructions to Jury ; New Trial.</p> <p>1. Where the charge of a trial judge states the case fairly to the jury and covers all the points contained in the instructions aslced, the refusal to grant instructions, which in themselves are correct, is not reversible error.</p> <p>2. Whether in causes pending in the General Term of the Supreme Court of this District, which were transferred to this court by the act of Congress creating the Court of Appeals, this court has the jurisdiction which was possessed by that court under Sec. 805, R. S. D. C., to review on appeal the action of a trial court in refusing a motion for a new trial on the ground of the insufficiency of the evidence to sustain the verdict, quaere.</p>

<p>Appealable Interlocutory Orders.</p> <p>An appeal from an order of a special term of the Supreme Court of the District of Columbia, vacating a prior order, dismissing an action at law for want of prosecution, is not such an appeal as is contemplated by Sec. 7 of the act of Congress of February 9, 1893, 27 Stats., 434, providing for the allowance of appeals to this court from certain interlocutory orders of the Supreme Court of this District.</p>

Hearing on a motion by the defendant for a new trial on bill of exceptions,-in an action upon a promissory note. The Court in its opinion stated the case as follows: The suit in this case was upon a promissory note for $600, executed by the defendant, Augustine I. Ambler, dated May 1, 1888, and payable in one year thereafter, with interest at six per centum per annum, to the order of the plaintiff, John G. Ames.

Hearing on a motion by the defendant for a new trial on a bill of exceptions, in an action brought to recover damages for personal injuries. The Court in its opinion stated the case as follows: This is an appeal by defendant from a judgment for $1,500 recovered by plaintiff in an action for injuries received by her April 1, 1888, in attempting to alight from one of defendant’s horse cars in the city of Washington.

<p>Deeds of Trust; Foreclosure; Redemption Decree ; Trustees’ Sale, Vacation of ; Deed of Trust Lien.</p> <p>1. A suit in equity was brought to foreclose a deed of trust for the nonpayment of overdue notes secured thereby, and of money advanced for taxes and insurance, in accordance with its provisions. The decree passed, set forth the various items of debt due under the deed of trust, and provided that unless the same were paid, the property included in the deed should be sold. Error being assigned that the decree was invalid, in that it did not “ declare the fact, nature or extent of the default which constituted the breach of the conditions of the deed of trust,” nor find the amount due thereunder : Held, That the decree was a sufficient finding that the money was due, and that its non-payment was a breach of the conditions of the deed of trust.</p> <p>2. In view of the fact that the instrument sought to be foreclosed was a deed of trust and not a mortgage, and of the particular circumstances of the case as stated, it was immaterial that the decree failed to fix a definite time within which the debtor might redeem.</p> <p>3. In such a case, it is discretionary with the trial court whether or not to refer the case to the auditor, to ascertain the amount due under the deed of trust.</p> <p>4. The effect of a decree vacating a trustees’ sale under a deed of trust, is to restore the parties interested to the positions occupied by them before the sale was made.</p> <p>5. The lien of a deed of trust extends to money paid by the purchaser at a deed of trust sale for taxes on the property, pending litigation, which results in the vacation of the sale.</p>

<p>Wills; Provisions in Restraint of Alienation; Perpetuities.</p> <p>1. The most important rule in the construction of wills, to which all other rules must bend, is, that the intention of the testator must prevail, when not inconsistent with the rules of law.</p> <p>2. A testator devised his entire estate to his wife, so long as she might live and remain his widow, and desired her to see his children well educated, the expense of which was to be paid out of the general income. He further provided that after the lawful age of the youngest child, the property should be sold and the proceeds equally divided among the children named. A bill in equity was filed after the death of the widow and before the majority of the youngest child, by one holding the title of one of the children, for the sale of the estate and distribution of the proceeds: Held, That the estate was charged with the education of the children ; that they took a vested interest, the full enjoyment of which was postponed until the majority of the youngest, and that such postponement was not in restraint of alienation or in conflict with the rule against perpetuities.</p>

Hearing on appeal by the complainant from a decree of the Supreme Court of the District of Columbia, holding an equity term, in a judgment creditor’s proceeding.

Hearing on appeal by the defendants from a judgment of the Supreme Court of the District of Columbia, holding a law term, upon a sci. fa. to revive a judgment. The Court in its opinion stated the case as follows: This is a scire facias to revive a judgment recovered by the Delafield & Baxter Cement Co., March 10, 1874, in the Supreme Court of the District against Austin P. and Samuel P. Brown, for the sum of $3,200.

<p>Appealable Orders ; Pleading ; Ejectment.</p> <p>1. An order striking out a plea of the Statute of Limitations to a declaration in ejectment, does not involve the merits of the action, and is, therefore, not an appealable order within the mearring of R. S. D. C., Sec. 772.</p> <p>2. It is not necessary in ejectment to plead the Statute of Limitations, so as to have the benefit of it, when the general issue is pleaded, as evidence of adverse possession is admissible under the general issue, the reason being that adverse possession for the statutory period of limitation not only bars such an action but creates a title in the possessor.</p>

<p>Evidence; Husband and Wife; Resulting Trusts.</p> <p>1. Where a purchaser of land causes the title to be placed in his wife, the presumption is that he intends the purchase and conveyance as a gift or advancement to her.</p> <p>2. And to rebut this presumption and show a resulting trust in the husband, after the wife’s death, in a proceeding against her infant heirs at law for that purpose, will require the clearest and most satisfactory proof.</p>

Hearing on a motion by defendants for a new trial on a bill of exceptions and case, in a prosecution upon an indictment for larceny from the person, in the Supreme Court of the District of Columbia, holding a criminal term. The case is stated in the opinion. 1. Upon the contention that a new trial should be granted because of the alleged improper language of the prosecuting officer in his opening to the jury: State v. Lapage, 57 N. H., 245 ; U. S. v. Carrigo, 1 Cr.

Hearing on an appeal by the complainants from a decree of the Supreme Court of the District of Columbia, holding an equity term, dismissing a bill filed by the complainants, as property holders and taxpayers in the District, to restrain the defendants, the Commissioners of the District, from accepting a proposal of their co-defendant, Thomas, to pave certain streets in the city of Washington; and to vacate any contract which might have been made with him, upon the ground…

<p>Wills ; Remainders ; Testamentary Intent ; Infants’ Real . Estate ; Creditors’ Bill.</p> <p>1. A testator devised a house and lot to his mother, “to have and to hold during her natural life, and after her death to my son, upon his attaining his majority.” The will further provided, that in event of the testator’s mother dying before his son attained his majority, a sister of the testator should enjoy the rents, issues and profits during the minority of the son ; and in event of the mother surviving the son, the property was devised to the sister, upon the mother’s death. The residue of the estate, real and personal, was devised to the testator’s mother, “in fee simple : ” Held, That taking the will as a whole, and it appearing that it was the intention of the testator to leave no part of his estate undisposed of, the son took a vested remainder in the house and lot, in fee simple, postponed in enjoyment until his majority, and subject to defeasance by his death before the death of the testator’s mother, in which event it would pass to the sister.</p> <p>2. A bill in equity against the heir at law of a deceased infant, is maintainable to charge the infant’s estate with an indebtedness due for his support and education, when there was no guardian-ship of the infant during his lifetime ; construing, R. S. D. C., Sec. 28.</p> <p>3. A court of equity has jurisdiction. to subject the real estate of a deceased debtor to the payment of his simple contract debts, when there are no personal assets sufficient for that purpose.</p>

<p>Assignments for the Benefit of Creditors ; Corporations ; Public Policy.</p> <p>1. Where the apparent effect of an assignment is to hinder or delay-creditors, beyond the necessary delay incident to all valid assignments, it is void as against creditors, no matter what may have been the intent of the assignor.</p> <p>2. An assignment, purporting to be made for the benefit of those creditors of the assignor, who might within 30 days accede to its provisions, but containing no provision for giving notice to creditors of its execution, provided, inter alia, that the surplus realized from the sale of the assigned property should, after satisfying the debts of the creditors, acceding to the terms of the assignment, be paid to the assignor ; that the assignee should have power to continue the business of the assignor, and to sell the property assigned upon credit; and that the assignee should be exempt from liability for “the default or misdoings of any agent or employe', except the same shall arise through his own wilful default or neglect ” : Held, That the effect of the assignment was to hinder and delay creditors, and it was void as against them.</p> <p>3. An assignment for the benefit of creditors,. executed in a foreign jurisdiction, will not be enforced here, when against the public policy of this jurisdiction.</p> <p>4. Where a corporation, having its assets and a place of business in this District, executes, in a foreign jurisdiction, an assignment for the benefit of its creditors, its interpretation and operation will be governed by the laws of this District.</p> <p>5. If a resident of this District goes into another jurisdiction expressly to make an assignment of property situated here, which assignment is valid there but invalid here, it will, in a proper case, be set aside upon the application of inj ured creditors, whether they are residents or non-residents.</p>

Hearing on an appeal by the complainants from a decree of the Supreme Court of the District of Columbia, holding an equity term, in a suit for an accounting by a trustee. The Court in its opinion stated the case as follows: In the latter part of 1883, Arthur E. Bateman formed a syndicate for the purchase of certain lots on Columbia Heights, adjoining the city of Washington.

Hearing on appeal by the defendant from an order of the Supreme Court of the District of Columbia, holding an equity term, allowing alimony pendente lite and counsel fees, in a suit for permanent alimony; and from an order in the same cause sustaining exceptions taken by the complainant to certain portions of the defendant’s answer, as scandalous and irrelevant.

<p>Married Women’s Act; Husband and Wife; Equity; Specific Performance ; Compensation ; Equity Pleading and Practice.</p> <p>1. R. S. D. C., Secs. 727 to 730, known as the Married Women’s Act, do not change the common law rule that contracts between husband and wife are void at law and cannot be enforced.</p> <p>2. The sole effect of that act is to abolish the control of the husband over his wife’s separate estate, and to dispense with the necessity of his intervention in regard to it in dealing with third parties.</p> <p>3. Agreements between husband and wife which are void at law may be sustained in equity ; and a verbal agreement by a wife to convey her separate estate, consisting of unimproved lots, to her husband in consideration of the erection by him of improvements thereon, for the benefit of their family, is enforceable in equity, after the wife’s death, by the husband against the wife’s representatives, where he has erected the improvements upon the faith of her promise.</p> <p>4. A court of equity will, in such a case, allow the husband compensation for his expenditures, in preference to decreeing specific performance of the agreement.</p> <p>5. A bill in equity seeking the specific performance of a contract to convey real estate, described the property as “ part of lot 9 in square 435,” and “part of lot 6 in square 353”: Held, Demurrable on the ground that the description was not sufficiently specific. Such a description necessarily implied that each of the two lots had been subdivided into two or more parts, but there was nothing to indicate which parts were intended.</p>

<p>Appealable Orders.</p> <p>A bill in equity was filed by one claiming to be the owner and in possession of certain real estate, to enjoin the defendant from tearing down and removing improvements on the property, and a temporary restraining order was granted until the preliminary hearing. With his answer the defendant filed a motion to dissolve the restraining order, which was overruled and the order was continued in force. From the order overruling defendant’s motion, he appealed to the General Term of the Supreme Court of the District, from which court it was transferred to this court by operation of law : Held, That the order appealed from did not involve the merits of the action within the meaning of R. S. D. C., Sec. 772, and was, therefore, not appealable.</p>

Hearing on appeal by the complainant from a decree of an equity term of the Supreme Court of the District of Columbia, dismissing a bill for the vacation of certain deeds and an assignment of dower in the property described in the deeds.

Hearing on an appeal by the complainant from a decree of an equity term of the Supreme Court of the District of Columbia, dismissing a bill to enjoin the prosecution of two suits pending at law, and for the surrender and cancellation of certain articles of agreement.

<p>Cloud on Title; Laches; Proof of Title; Equity.</p> <p>1. A bill in equity by the holder of the record title of real estate to remove a cloud created by a tax deed over forty years old is not maintainable, in the absence of testimony explaining the delay in attempting to remove such cloud, because of the laches on the part of the complainant or those under whom he claims.</p> <p>2. The fact that the real estate described in such a bill was assessed in the name of the person under whom the complainant claims, seventy-five years prior to the filing of the bill, is not sufficient to prove title in such person, when the complainant is put to proof of his title by the answer of the defendant.</p> <p>3. A complainant in equity seeking the vacation of an irregular tax sale and tax deed as a cloud upon his title, must offer to reimburse the purchaser at the tax sale, or the holder of the tax deed, for the taxes paid by him, with interest and costs.</p>

<p>Cloud on Title ; Equity Practice.</p> <p>1. A cloud on title is an outstanding claim or incumbrance on real estate, which, if valid, would affect or impair the title of the owner, and which apparently and on its face has that effect, but which can be shown by extrinsic evidence to be invalid or inapplicable to the estate in question.</p> <p>2. A deed executed and recorded by a stranger to the title, is not, in the legal sense of the term, a cloud upon the title of the real estate described therein, of which equity will take cognizance in a bill filed to remove the cloud alleged to be created by it.</p> <p>3. Where a bill filed for that purpose is dismissed upon the ground that such a deed does not constitute a cloud upon the complainant’s title, the decree dismissing the bill should declare the nullity of the deed, in which event the complainant’s purpose will be sufficiently subserved.</p>

This was a suit in equity brought in the Supreme Court of the District of Columbia, by the complainant the Columbia Brick Company, as a sub-contractor and material-man, against the District of Columbia, as owner, Columbus. Thomas, as contractor, and a number of other defendants, as sub-contractors.

Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia, holding an equity term, dismissing a bill for the foreclosure of a deed of trust. The Court in its opinion stated the case as follows : This is an appeal from the decree of the Supreme Court of the District, in special term, dismissing appellant’s bill to foreclose a deed of trust upon a certain lot in the city of Washington.

<p>Evidence ; Mechanics’ Liens.</p> <p>1. In a suit to enforce a mechanics’ lien, the burden is on the complainant to show by clear proof when the buildings were commenced, the nature and character of the work or materials furnished, and the date of the completion of the buildings ; and a failure to establish these facts, to a reasonable intent, will cause a failure to establish the claim to a lien.</p> <p>2. Where a mechanics’ lien law requires a notice of lien to be .filed within three months after the completion of the building against which the lien is sought to be enforced, the time of filing the notice will not date from the time of the putting in of fixtures, such as stoves, electric bells and gas fixtures, unless such fixtures are embraced in the contract for the construction of the building.</p>

<p>Evidence; Res Gestae.</p> <p>1. In an action against a street railway company to recover damages for personal injuries alleged to have been caused by the sudden starting of defendant’s car, whereby the plaintiff was thrown to the ground, the declaration by defendant’s transfer agent at a point of intersection of two of defendant’s lines, made from two to five minutes after the accident occurred, that the conductor of the car on which plaintiff was a passenger “ would get into trouble,” and that “ he started without my authority,” is not admissible as part of the res gestae, the declarant not being an actor in the occurrence,, but occupying to the defendant the relation of any other by-stander, and his exclamation, though near in point of time, being narrative only of a past transaction.</p> <p>2. The rule relating to the admissibility of evidence as part of the res gestae is to be more strictly construed in cases where the declarations of agents or employees of a defendant are sought to be introduced against him, and especially where the declarant may be interested in exculpating himself from blame by inculpating another.</p>

Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia, holding an equity term, dismissing a bill to subject an estate by the curtesy to the payment of a judgment debt. The Court in its opinion stated the case as follows: This is a suit in equity instituted to subject an equitable tenancy by the curtesy to the satisfaction of a judgment at law.

Hearing on an appeal by the defendant from an order of the Supreme Court of the District of Columbia, holding a law term, overruling a motion for a new trial on a bill of exceptions.

<p>Attorney and Client, contracts between.</p> <p>1. Where upon the hearing of a demurrer to a suit brought upon a contract between attorney and client relating to fees to be paid the former, the court is called upon to construe the contract, the construction given it will not be strained in favor of the client because of the relations which existed between the two when the contract was made. The rule of law relating to contracts between attorney and client, which casts the burden upon the attorney of showing that a contract entered into with his client is a fair and reasonable one, applies in the enforcement of such contracts and not in their interpretation.</p> <p>2. An agreement, in writing, for fees between attorney and client construed in this case, and the attorney held to be entitled to a lien for his fees upon property recovered for his client.</p>

<p>Hearing on appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, holding a law term, sustaining a demurrer to a declaration in an action of covenant.</p>

Hearing on an appeal by the complainant from an order of the Supreme Court of the District of Columbia, holding an equity term, suspending proceedings in a partition suit, pending a suit at law to determine the question of the legal title of the real estate involved. The Case is stated in the opinion.

Hearing bn an appeal from a decree of the Supreme Court of the District of Columbia, holding an equity term, upon a bill of interpleader, directing the distribution of a fund. The Case is stated in the opinion.

<p>Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, holding a law term, for the plaintiff upon an agreed statement of facts, in an action of ejectment.</p> <p>The Case is stated in the opinion.</p> <p>1. By the will of Sarah Moore, Mary Ann Dengel took a fee simple, and the words of the devise are words of limitation and not of purchase. The rule in Shelley’s case aids the easy disposition of, and free commerce in, property; this devise falls within the rule. It is a rule of the law. It is in full force in this District. Miller v. Fleming, 7 Mackey, 148 ; Green v. Green, 23 Wall., 489; Baker v. Scott, 62 111., 86; Fraser v. Chene, 2 Mich., 80; Hileman v. Bouslaugh, 13 Pa. St., 344; Ware v. Richardson, 3 Md., 505 ; 2 Wash. Real Prop., 596, 605. It is alike applicable to wills and deeds. The intention of the testator controls in the construction of a will, when not inconsistent with the rules of law. Colton v. Colton, 127 U. S., 300. See also, Inglis v. Sailor's Snug Harbor, 3 Pet., 99; YarnalPs Appeal, 70 Pa. St., 335 ; Simpers v. Simpers, 13 Md., .160; Hughes v. Nicklas, 70 Md., 484; McCray v. Lipp, 33 Ind., 116; Quilman v. Custer, 37 Pa. St., 125 ; Brown v. Lyon, 6 N. Y., 419; Malcolm v. Malcolm, 3 Cush., 472; And vide Petition of Browning, 16 A., 717 (R. I.); Vowickel v. Patterson, 114 Pa. St., 21; Bassett v. LLawk, 118 Pa. St., 94.</p> <p>2. But while the appellees must make their title, if they have any, under the will of Sarah Moore, the appellant is not confined to this source of title. Sarah Moore intended and sought by all means to bestow this property on her niece Mary Ann Dengel. By her deed to Hodgson, trustee, in consideration of one thousand dollars, she conveyed it to him, his heirs and assigns forever. Hodgson, trustee, united in the deeds of trust to Duncanson and Fendall; the appellant, by mesne conveyance, has the entire title of both Mary Ann Dengel and Hodgson. His quit-claim deed to the plaintiffs conveyed nothing, for he had already conveyed all title.</p> <p>in their brief, upon the question of the proper construction of tire deed from Sarah Moore to Hodgson, trustee, cited Doe v. Considine, 6 Wall., 438 ; Young v. Bradley, 101 U. S., 782 ; Giles v. Little, 104 U. S., 291; and as to the proper construction of the will of Sarah Moore, Washburn on Real Property, 655 ; Ware v. Richardson, 3 Md., 503 ; Daniel v. Whartenby, 17 Wall., 643 ; Haley v. Boston, 108 Mass., 576; Wetter v. Press Co., 75 Ga., 540; Myrick v. Heard, 31 Fed. Rep., 241 ; Taggart v. Murray, 53 N. Y., 233 ; Green v. Green, 23 Wall., 486; Doe v. Fonnereau, 2 Dóug., 508 ; and Moore v. Parker, 4 Mod. Rep., 316.</p>

<p>Aliens, Forfeiture of Land i-ield by ; Deeds, Construction of.</p> <p>1. The Act of Congress of March 3, 1887, prohibiting aliens from holding real estate, applies only to titles acquired after the passage of the act, and only then in a direct proceeding by the Attorney General to enforce the forfeiture to the Government.</p> <p>2. Where E. held the legal title to land in trust for a syndicate of which S. was a member and executed to S. a deed of a part of his, S.’s, interest in order that S. might convey it to B., but before the transaction was consummated by such conveyance, B. agreed to purchase S.’s entire interest, and thereupon the deed from E. to S. was cancelled in order that E. might convey the whole of S.’s interest directly to B., it was held,, that the deed from E. to S. was to be regarded as a nullity and that the legal title to S.’s interest still remained in E. who was bound to convey it to B. upon S.’s direction so to do.</p>

Hearing on appeals and cross-appeals from several orders and judgments of the Supreme Court of the District of Columbia, holding a law term, in two actions for rent, wherein attachments were issued to enforce the lien of a landlord. The Court in its opinion stated the case as follows: These are two suits between landlord and tenant to enforce the payment of rent by attachment.

Hearing in the first instance of an equity cause brought to establish claims against the estate of á decedent, and transferred from the General Term of the Supreme Court of the District of Columbia to this court by operation of law.

<p>Negligence ; Contributory Negligence ; Reckless Injury.</p> <p>The plaintiff in an action for damages for personal injuries, who has been guilty of contributory negligence, but who seeks to escape the consequence of his own negligence upon the ground that the injury complained of was caused by the recklessness and wilful negligence of the defendant, must show that the defendant had actual knowledge of the plaintiff’s danger, and could, by the exercise of ordinary care and prudence, have avoided the resulting inj ury.</p>

<p>Police Court, Dist. of Columbia ; Penal Statutes ; Actions for Penalty.</p> <p>1. The Police Court of this District has power to hear and determine cases arising under the act of Congress of January 26, 1887, ch. 46, regulating insurance in the District of Columbia, and subjecting offenders against that statute to a penalty of $100 for each offense.</p> <p>2. Where a statute creating an offense of a criminal nature against the public, provides that every offender against the statute shall be subject to a penalty in a certain amount, to be recovered by due process, a civil action against an offender to recover the penalty prescribed,,is not the exclusive remedy, but an indictment will lie against him as an appropriate method of recovering the penalty.</p>

Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia, holding an equity term, dismissing a bill to enforce a mechanics’ lien. The facts are stated in the opinion.

Hearing on an appeal by the defendant from an order of the Supreme Court of the District of Columbia, holding a law term, overruling a motion for a new trial on bills of exception and case, in an action for damages.

<p>Wills; Devise to Heirs, effect of.</p> <p>1. Where there is a devise by a testator to his heir of an estate, the same in quality and quantity as the heir would have taken if there had been no will, the heir takes by descent as heir, and not by purchase as devisee, and the devise is void. But in order that this rule should apply, the estate must be precisely the same, both in quality and quantity.</p> <p>2. Where a testator devises his estate to his wife for life, directing a sale thereof after her death, and an equal division of the proceeds among their three children, and provides further, that in event of but one child surviving the mother, then such child shall take the estate in fee simple, and but one child does survive the mother, such surviving child will take the estate by purchase under the will, and not by descent. In such a case, the surviving child has had at no time more than a reversion or vested remainder in one-third of the estate by descent from her father, and a reversion or vested remainder in one-third is not the legal equivalent of a contingent remainder or executory devise of the whole, which is what she takes under the will.</p>

<p>Appeals from Interlocutory Judgments ; Criminal Law ; Indictments.</p> <p>1. In a case in which an appeal was allowed by this court from an interlocutory judgment of the court below, overruling a demurrer to an indictment against the appellants for manslaughter, it was stated in the opinion that the appeal was allowed only in view of the peculiar circumstances of the case and of a prospect of a protracted and expensive trial, and was not intended to furnish a precedent to be lightly followed in criminal cases thereafter.</p> <p>2. An indictment must be certain to every intent, and without any intendment to the contrary; and the crime must be charged with such certainty and precision that it may be understood by every one, so that the defendant may know how to defend against such charge. Hence, facts, and not merely conclusions from such facts, or conclusions of law, must be stated.</p> <p>3. If several parties enter into a joint undertaking, imposing upon each a personal duty in respect to the performance of the undertaking, and upon all alike, and by the neglect or omission of such duty a casualty occurs, resulting in the death of a third party, an indictment will lie against all jointly ; but in such a case, if the indictment fails to state explicitly the facts necessary to enable the court to determine whether there was a joint duty created and imposed upon all the defendants alike, and whether the culpable negligence charged in the indictment, either of commission or omission, was of a nature to involve all of the defendants in its criminal consequences, as a joint commission of crime, then such indictment is defective ; and such defect can be availed of by the defendants either by demurrer or motion in arrest of judgment.</p> <p>4. The indictment in such a case must also set forth sufficient facts to charge a definite duty upon each of the defendants, and give him notice of every act of rregligence with which he is charged. There'must be averred in the indictment facts to show that there was, in legal contemplation, a common or like personal duty on the part of each defendant; and the facts averred must not only show the neglect of that duty, but, to make the party guilty of it liable to the charge of felony, such neglect must have been personal, and the death that ensued must have been the immediate and direct result of that personal neglect of duty.</p>

Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia, holding an equity term, overruling exceptions to a report of the Auditor and dismissing a bill for an accounting. The Court in its opinion stated the case as follows: This is a suit in equity for an accounting.