Volume 10 — District of Columbia Reports

Demurrer to bill of complaint. The facts stated in the bill are substantially as follows: The plaintiff was the owner and holder of two promissory notes, dated August 26,1872, made by the defendant Ormes, payable to the order of and endorsed by the other defendant, Jones. They were transferred, before maturity, to the plaintiff, and demand of payment and notice of dishonor were waived by the defendant Jones, the endorser.

<p>STATEMENT OE THE CASE AND DECISION.</p>

<p>It is no canse of action against the commissioners of the Fx'eedman’s Savings and Trust Company, that a depositor gave sixty days’ notice, according to the rules of the company, that he intended to check or draw out the amount of his deposit, and that the sixty days expired before the suspension took place, or the commissionex-s took possession of the assets.</p>

<p>The case is stated in the opinion of the court.</p>

<p>I. An order overruling or sustaining a demurrer, with leave to amend or answer over, is not appealable.</p> <p>II. An order sustaining a demurrer to a bill of complaint in equity, or to a declaration at law, does not involve the merits of the case where leave is given to amend such bill or declaration within a specified time. If the plaintiff elects not to amend, and there is judgment against him, he may then appeal to the general term.</p> <p>III. After final judgment, if an appeal be taken, all orders made in the progress of the suit affecting the merits are subject to review by this court.</p>

<p>The case is stated in the opinion of the court.</p>

A writ of habeas corpus was issued by the justice holding the criminal term on the 9th day of May, 1877, upon the petition of Dennis Jackson, alleging that he was unlawfully restrained of his liberty by John S. Crocker, warden of- the District jail, by reason'of an unlawful sentence of the Police Court of the District of Columbia.

This action was brought ou a constable’s bond executed by the defendant as surety, with Obadiah Kimmell and William H. Maaek, in the penal sum of $5,000. The bond was duly approved, and filed with the clerk of the court June 80,1871, as required by law.

This is a controversy in regard to the settlement of an administratrix’s account in the Orphans’ Court. Horatio Ames died Januaiy, 1871, in the State of Connecticut, and the executors in his 'vyill refusing to qualify, his widow, Charlotte L. Ames, was appointed in that State administratrix with the will annexed.

<p>The case is stated in the opinion of the court.</p>

Demurrer to declaration. The alleged contract for a.breach of which this action is brought is contained in an exhibit to the declaration, and is expressed as follows: Board oe Public Works, District oe Columbia, Washington, December 10, 1871. To Ballard Pavement Co., Washington, D. C.: Your proposition of this date, as follows: “ The Ballard Pavement Company hereby make proposals for the following woi’k, with accompanying conditions.

<p>A member of the Are department of the city of Washington cannot maintain a personal action for his monthly salary unless he has actively performed the duties of his office; and the fact that he has been removed without notice of charges and a trial, will not entitle him to this remedy.</p>

<p>I. A power oí attorney to prosecute a claim against the United States, and to receive any check, order, or certificate issued by the government for the payment thereof, confers no power upon the attorney to assign or endorse the paper in the name of the payee.</p> <p>II. When the drawee of such check had settled with the drawer and charged up the amount against him, there is sufficient privity between the parties to enable the payee to recover the amount upon a count for money had and received. This principle is applicable to a case where the bank had paid the check upon a forged endorsement.</p> <p>III. The statute of limitations refers to the time of the institution of the suit, and not to the time of filing an amendment to the declaration.</p>

Certiorari to justice of the peace. The suit was instituted against the defendant for the possession of certain stalls in the Centre Market, under the landlord and tenant act, before K. V. Hughes, one of the justices of the peace for the District of Columbia. The defendant appeared and filed an affidavit for the removal of the cause to the nearest magistrate.

The defendant Ager was sued as endorser on two promissory notes dated April 11, 1872, each for the sum of $1,082.33, payable at the Freedman’s Savings and Trust Company. On the trial of the action it was stipulated by counsel that the only defense made by the said Ager is that there was not due notice of protest of the promissory notes in suit.

The defendant was indicted for presenting to the Second Auditor of the Treasury a false claim for the back pay and bounty of a deceased soldier named Major Dabney, of company C, 23d regiment, IT. S. colored troops. At the trial, exception was taken to the manner in which the jury was impanelled. It appears that twelve of the regular jurors were impanelled in another cause, and were out consulting upon their verdict.

<p>T. This court will compel a justice of the peace, by mandamus, to issue a writ of restitution in execution of a judgment which lie has rendered in a landlord and tenant proceeding, where no undertaking has been given by the defendant within the time prescribed by the rules of court in case of appeal.</p> <p>II. An 'appeal from a judgment rendered by a justice of the peace will be dismissed where no undertaking was given, as required by rules of court, within ten'days after the rendition of the judgment; and the magistrate has no discretion which will authorize him to allow an appeal after the expiration of the prescribed period to which he must conform his practice in all cases of appeal.</p>

<p>I. An order quashing ail attachment is appealable to the general term.</p> <p>II. The United States, when plaintiff in a civil action, is entitled to the writ of attachment, and' is relieved by section 1001 of the Revised Statutes from giving the usual undertaking in such cases.</p>

<p>When a trust, deed is given to secure a debt for which seven promissory notes are passed, payable at various periods, and in ease of default sale is to be made and the notes paid whether due or not, and the fund realized from the sale is insufficient to paj' all the notes in full, the holders thereof are entitled to a pro rata distribution, without regard to the order in which the notes mature, upon their face.</p>

<p>Where an executor files an inventory, from which it appears that lie has •paid various debts amounting to nearly all the assets in his hands, and the complainant files his bill to enforce a sale of real estate to pay a debt due him from the estate largely exceeding- the balance of assets so inventoried, and the executor interposes a plea averring that lie has assets amply sufficient to pay all claims against the estate, and disputes the validity of complainant’s debt, but avers his readiness to pay the same when its validity is established in a court of law, the court in equity, if satisfied that the debt is due, will decree the executor to pay the same without a resort to the law side of the court.</p>

The declaration contains three counts. The first count alleges a contract by Richard M. Corwine, deceased, to pay to the plaintiff one-half of all the fees in the Farragut Prize and Bounty Cases, in consideration of the plaintiff’s assistance in securing the said Corwiue’s appointment as special counsel in the said prize and bounty cases, and also in consideration of plaintiff’s assistance in arranging and carrying on the defense in the said cases.

Replevin against defendant for wrongfully taking and detaining the plaintiff’s goods and chattels of the value of $500. The record discloses substantially the following case: On the 19th day of February, 1872, Olive Hechtman gave her promissory note for $1,680, payable three years after date to John Hechtman, of Osseo, Minnesota, and at the same time executed a chattel mortgage upon the furniture in controversy to C. Storrs, in trust to secure such indebtedness.

<p>I. The paternal grandfather of a deceased infant is nearer of kin by the law of this District than á, maternal uncle, and is preferred as administrator, if lie apply for the appointment.</p> <p>II. If tlie child is brought into this District from the State of Tennessee by a person who lias not been appointed its guardian, the domicil of the child is not changed, and the legal residence is still that of its parents at the time of their death.</p> <p>III. The property of an intestate infant should be distributed according to the laws of its domicil at the time of its death.</p> <p>IV. The domicil of a deceased parent continues to be that of a surviving child who was between two and three years old at the time of such death, and the distribution of such infant’s estate, who died shortly afterwards, will be according to the laws of such domicil.</p>

STATEMENT 0E THE CASE. The bill herein was filed for settlement of title and refonniation of deeds.

This is an appeal from a decree of the Equity Court, passed October 19, A. D. 187(3, dismissing complainant’s bill with costs.

The original bill in this cause was filed by Henry Kaiser and Caroline, his wife, for the purpose of preventing a threatened sale of property under the powers of a deed of trust.

The bill of complaint was filed to enjoin the District of Columbia from selling property of the defendant for default in the payment of taxes on real estate due to the old corporation of Washington and to the District of Columbia.

The declaration of the plaintiff sets forth that there is in the city of Washington a highway called Nineteenth street, which the defendant was bound to keep in such condition as to render it safe for passing and repassiug, on foot or otherwise; yet, nevertheless, the plaintiff says that on the' 13th day of June, 1874, the said street, in its l’oadway and its sidewalk, between B and D streets south, was out of repair and in a dangerous and unsafe condition by reason of the…

This is a bill in equity to enjoin the defendants from enforcing a judgment at law, and a decree to that effect was obtained in the court below. The judgments whose collection is enjoined were rendered April 22, 1871; the bill in this case was filed November 28, 1875. Th¿ complainant Julius S. Bohrer was the principal defendant therein, and the summons in the case was returned non est, and a judgment was taken by default for failure to appear and answer.

STATEMENT 0E THE CASE. This is a bill for marshalling assets against the devisees in the will of the late James Y. Davis. The testator appointed his wife, Harriet, and his sons, James S. and Samuel T., to be his executors, and directed them to pay his debts and settle his estate as soon as practicable.

<p>STATEMENT OF THE CASE AND DECISION.</p>

<p>A resale of property embraced in a trust deed made under order of the court will be confirmed, although the party who holds the notes is the purchaser for a sum less than the amount due, there being no other bidder, provided the sale were fairly and houestiy conducted.</p>

This is a proceeding instituted by petition for a writ of mandamus to compel the Secretary of the Treasury to pay to the relator a certain amount of money found to be due to the latter from the United States.

An order was made at the special term, sitting in equity, on the 28th of June, 1875, directing the receiver, George W. Riggs, to pay to the defendants the sum of $47,297.56 in gold out of the fund belonging to the suit in his hands, which payment was accordingly made.

<p>STATEMENT OF THE CASE.</p> <p>From the record in this case it appears that the defendant obtained two judgments at law against the complainant Eider — one in 1858, for $375, and one in 1864, for $300. The latter has been satisfied, and the former not. E also appears that Morsell, in 1857, had obtained a judgment against Eider jointly with one "White, composing a firm of Eider & White, for the sum of $254, which has also been paid and satisfied. The complainant claims, in his bill in this ease, that the amount in the judgment of 1864 of $300 had been previously included in the judgment of 1858 for $375, and that the payment on the judgment of 1857 should also be credited upon said judgment. The court hold that the complainant’s testimony is confused and unsatisfactory.</p> <p>The defendant Morsell has issued a scire facias upon the judgment of 1858, which remains unsatisfied, and judgment thereon has been rendered in his favor. The bill is filed to restrain proceedings upon the judgment last mentioned, and for general relief. The case was heard on pleadings and proofs, and a decree passed dismissing the bill. The case is now here upon appeal from that decree.</p>

The complainant filed her bill for the purpose of compelling the defendants and the other members of a certain voluntary unincorporated association doing business in the city of Washington, and known as “The German Roman Catholic St. Joseph’s Liebes-Bundes,” to pay to her an amount of money equal to as many dollars as there were members thereof at the time of her husband’s death, to wit, on the 1st day of September, 1875.

<p>I. P, during his life-t.imo, obtained several loans of money from B, one of the defendants, and. as security for these loans, assigned a,n interest in a policy of insurance on his life. Afterwards P, being unable to pay the premiums on the policy, made an absolute assignment of that policy to B, who continued thereafter to pay the premiums until the death of P, and was treated by the agent of the company as tiie owner of the policy. Under these circumstances, a sourt of equity will not decree such assignment to be a mere seenrH'.y for the money advanced, as a consideration for the transfer of the policy.</p> <p>II. Where tiie assignor of a policy of life insurance is dead, the assignee cannot be examined as a witness in regard to the transaction on his ■own behalf, unless he is called hy the other party.</p> <p>III. Loose memoranda found in the desk of the assignor after his death are incompetent evidence on the part of the administrator of the decedent, in a suit brought by the, latter to set aside the assignment as an absolute transfer of the policy.</p>

<p>I. In an action for money had and received to the plaintiff’s use, the plaintiff cannot recover the money unless he proves that it is against conscience for the defendant to keep it. The burden of showing this is upon the plaintiff. In the absence of proof upon this point, the presumption is that the money was lawfully paid to the defendant, and that he has the right to retain it.</p> <p>II. A party sued by the United States cannot set up a claim by way of set-off, unless such claim has been made out with the proper account and vouchers, and presented for settlement at the Treasury Department as required by section 951 of the Revised Statutes ; and where the claim is sustained by no evidence except the affidavit of the claimant, it was properly rejected by the accounting officers of the government, and is equally inadmissible as evidence on the trial of the case in court.</p>

This is an action at law against the defendant as receiver of the Washingtou City, Midland and Great Southern Railroad, a corporation organized under a law of the State of Virginia, and doing business and having an office in the District of Columbia.

This was a motion to discharge a receiver who had been appointed before tlie defendant auswered the bill.

<p>The facts sufficiently appear in the opinions.</p>

The complainant filed her bill on tbe 15th of September, 1875, setting forth the facts that a certain John Malone had died on or about the 1st day of June, 1871, seized and possessed of certain real and personal estate, and leaving a last will and testament, in which, after directing the payment of his debts and funeral charges, and providing for the payment of two legacies of $5 each, he devised and bequeathed all the rest and residue of his property, real and personal, to…

The material facts may be briefly stated: The Baltimore and Potomac Railroad Company, a corporation created by an act of the Legislature of Maryland, was empowered by an act of Congress to lay down a branch track of its road into this District, and for that purpose passing over such lands and occupying such streets as Congress in its discretion might allow. A route was selected, and sanctioned by Congress. This route, thus approved, occupied a portion of South Capitol street.

<p>STATEMENT 0E THE CASE.</p> <p>There are two special counts in the declaration. The first set forth that on June 27, 1872, plaintiffs entered into a contraed with the Board of Public Works of the District of Columbia to grade Maryland avenue, between Third and Seventh streets southwest, in the city of Washington; said work to be done in accordance with specifications annexed to said contract; and said board agreed to pay the plaintiffs for ■doing said work thirty cents a cubic yard for such grading, &c. And it is then averred that the board agreed that they would perform all the stipulations of said contract, and would pay 'the plaintiffs in lawful money the amount which might be found from time to time due plaintiffs according to contract; that the amount found due to plaintiffs under said contract ■was $44,690.82, of which amount $18,468.48 are still due and unpaid. Plaintiff's further aver the faithful performance by them of the contract.</p> <p>Second count. Plaintiffs sue defendant for that: January 7, 1874, plaintiffs entered into a contract with the Board of Public Works in and for the District of Columbia to grade North Capitol street, between L street north and New York avenue, Washington, D. 0., said grading to be done in accordance with specifications annexed to said contract; and the said Board of Public Works for said District agreed to pay plaintiffs for doing the said work thirty cents for each cubic yard of grading, &c.; and said board did further agree with plaintiffs to perform all the stipulations of said contract, and to pay plaintiffs the amount which may be found due them according to contract. The amount found due plaintiffs under this contract was $28,404.68, of which amount $9,678 are still due and unpaid.</p> <p>Plaintiffs aver that, in all respects, they have faithfully performed their- part of said coutract, and are entitled to receive said balance.</p> <p>The common counts are added, with particulars of demand.</p> <p>The defendant, the District, of Columbia, demurs to the special counts because they contain no averment that said board made either of said contracts in writing, signed by the parties, or after a sum of money had been appropriated by law for said improvements. The thirty-seventh section of the organic act provides, among other things; that—</p> <p>“All contracts made by the said Board of Public Works shall be in writing, and shall be signed by the parties making the same; and a copy thereof shall be filed in the office of the secretary of the District.</p> <p>“And said Board of Public Works shall have no power to make contracts to bind said District to the payment of any sums of money except in pursuance of appropriations made by law, and not until such appropriations shall have been made.”</p> <p>Section 15 contains the following:</p> <p>“Sec. 15. And be it further enacted, That the Legislative Assembly shall never” * * * “ authorize the payment of any claim, or part thereof, hereafter created against the District, under any contract or agreement- made without express authority of law; and all such unauthorized agreements or contracts shall be null and void.”</p> <p>Tbe demurrer is heard at the general term in the first instance.</p>

STATEMENT 0E THE CASE.. In this case there was a bill tiled by Gunton for the settlement of his account as trustee under the will of Harriet Fischer, deceased; and in the course of proceedings an order was made directing Gunton, trustee, to sell certain real estate; and at the sale (A. H. 1871) the petitioner, Joel C. Green, purchased some of the land. The price was paid in due time, and the trustee conveyed the land to the petitioner.

<p>I. An ordinance of the board of aldermen and common council of the late corporation of Washington, which has not been repealed or modified by act of Congress, or by the Legislative Assembly, is still _ in full foi'ce. (Rev. Stat. Dist. Col., sec. 91.)</p> <p>II. The actof the Legislative Assembly of August 23,1871, for regulating hackney carriages, does not delegate any power to the Board of Public Works to abolish liack-stauds established by law; and the District Commissioners are equally incompetent to exercise such authority'.</p> <p>III. The court has no jurisdiction to enjoin an act authorized by law.</p>

<p>I. The Commissioners of the District of Columbia do not succeed the late Board of Public Works as parties to a bill in equity, where uo process has been issued or served upon them; and a rule upon them to show cause in such suit will be discharged.</p> <p>II. Tlie District Commissioners have no authority to deliver to any person certificates turned over to them by the late Board of Audit under the joint resolution of Congress approved March 14, 1S77. (Stats. 1876, 1877, 211.)</p>

STATEMENT 0E THE CASE. This was an action on the case for negligence of the defendant in regard to a street or highway in the city of Washington.

STATEMENT 0E THE CASE. The bill ih this case is filed to enforce a claim for a mechanic's lien on lot 1 in a subdivision of part of square 164, in this city. The pleadings and proofs disclose the fact that Kate R. .Kilbourn, a ma'rried woman, and the wife of the co-defendant, 'Hallet Kilbourn, was seized of the properly in question at the time when the complainants placed in it the heating apparatus for which the lien is claimed.

STATEMENT 0E THE CASE. This was an action of ejectment for the recovery of part of lot 1 in square 729, lying and being in the city of Washington and District of Columbia. On the trial of the cause before the chief justice, the plaintiff gave in evidence a series of conveyances, which showed that one George Cole became seized of the premises in question on the 6th of July, 1829, and afterwards died leaving the plaintiffs his surviving heirs at law.

<p>STATEMENT OF THE CASE.</p> <p>This is ao appeal from a decree overruling a demurrer to a bill of review. The bill in the original cause was filed in April, 1876, by Edgar Speiden against Charles T. Davis, who is the complainant herein. It alleges that the said Speiden purchased from Davis, May 17, 1875, twenty thousand dollars of District of Columbia bonds, commonly known as 3.65 bonds of said District, for -which he paid him $1,100 in cash and gave his note for $14,000, payable in thirty days, pledging said bonds as collateral security for the payment of the note; that on the 3d of July following Speiden made another purchase of 3.65 bonds for the sum of $30,000, at the rate of 74f- per cent., for which he gave his note for $21,000, payable in sixty days — the bonds being pledged as collateral security for the payment of said note also. He gave 1ns personal note for $1,425, payable at the same time. The notes were renewed at maturity, upon payment of the interest due thereon; in consideration of which Davis agreed to carry the bonds, and to hold them as collateral to the notes. Another renewal of the same kind was made in October, 1875, and finally, on the 7th day of December, 1875, the market value of the bonds having depreciated to 65 per cent., Speiden paid the interest due on the note and margin on the bonds, and gave Davis a new note for $30,000, payable ninety days after date, with interest at 8 per cent., and a personal note for $2,500, and Davis agreeing to carry the bonds as he had done before; that, on March 14, 1876, Congress passed an act providing for the payment of the semi-annual interest on the 3.65 bonds, whereupon they appreciated from 74J to 75 per cent., and Davis then claimed that he had sold the bonds at 66 per cent, on their face value; that although requested to render a statement of the said sale, Davis has never done so and retains the notes; and that he has brought suit against Speiden on the $2,500 note, claiming a balance due thereon, on the law side of this court. The bill also alleges the belief of the complainant therein that Davis never had the bonds, and that he had perpetrated a fraud upon him.</p> <p>The prayer is that Davis surrender the notes, and pay to Speiden the several sums of money which he has paid for interest and margins as aforesaid; that Davis may account for the market value of the bonds, and may be enjoined from prosecuting the suit at law.</p> <p>Upon this bill an injunction issued according to the prayer thereof, aud Davis having filed a demurrer, the same was overruled on the 8th September, 1876, with leave to answer the bill within ten days. An appeal from this order to the general term was perfected by filing an appeal bond on the 21st day of September, aud on the 23d of the same month, notwithstanding such appeal, the complainant thei’ein obtained a decree fro confesso for want of an answer, and on the 3d day of November following a final decree was entered at the special terra upon the bill. There was no reference to an auditor and no proof. It was decreed that the suit at law be enjoined, and that Davis pay the said Speiden the sum of $6,601, with interest until paid, and that he surrender the notes to be canceled — the amount decreed to be paid corresponding in the aggregate with the several payments alleged on the face of the bill to have been paid by the said Speiden for interest aud margins, as already stated.</p> <p>The general term decided, December 18, 1876, that an appeal would not lie from the order overruling the demurrer to the original bill, aud the same was remanded to the special term for further proceedings.</p> <p>Various other steps were taken in the- cause, with a view to setting aside the decrees pro confesso and the final one, which having been denied, Davis filed the bill of review in this cause, setting out the whole record and appending a copy of his proposed answer to the bill in the original suit.</p> <p>The errors of law assigned upon this record are:</p> <p>1st. The special term had no jurisdiction to proceed with the cause pending the first appeal. 2d. The decree of November was unauthorized, without proofs. 3d. The cause having been remanded for further proceedings, the special term should have taken jurisdiction of the case as it was at the date of the appeal. 4th. The appellate court must determine its own jurisdiction, and pending such determination it is irregular for the special term to proceed with the cause, and such proceedings should be set aside on motion. Davis claims an irreparable injury by reason of the said erroneous proceedings, and that he is not indebted to the said Speiden in any sum whatever.</p> <p>To this bill of review Speiden demurs, claiming (1) that there is no error of law on the record; (2) that Davis has not performed the decree sought to be reviewed; (3) the bill of review not filed in time; (4) too late to review a decree after an appeal from it to the general term and a dismissal of the appeal there.</p> <p>After a hearing, the court in special term overruled the demurrer, sustained the prayer of the bill, set aside the decrees in original- suit subsequent to appeal therefrom, and gave Davis leave to answer in said suit instanter.</p> <p>From this decree Speiden appeals to this court.</p>

The facts to be collected from the pleadings and proofs are substantially as follows: In September, 1835, one Dolía Mullen, the ancestor of the defendants, was seized in fee of a parcel of land in the District of Columbia, which need not be more fully described, and being indebted to Teresa Byrne and Bridget Rogers in the sum of $103.75, which was to become due on September 30, 1837, she conveyed said real estate to Edward Dyer and his heirs in trust to secure the payment of…

On the 17th day of August, 1871, Henry H. Dudley, being seized of lots 1, 2, 3, 4, and 20 in square 204, gave two notes of $3,500 each, payable in one aiid two years respectively, with interest at 7 per cent., secured by deed of trust, to one Joseph Blaekfan.

<p>STATEMENT 0E THE CASE AND DECISION.</p>

<p>I. A court of equity will only sustain a purchase by a trustee from his cestui que trustyvhcre it is deliberately agreed and understood between them that the relation shall be considered dissolved, and there is a clear contract, ascertained to be such after a zealous and scrupulous examination of the circumstances, and it is clear that the cestui que trust intended that the trustee should buy, and that there is no fraud, concealment, or advantage taken by him.</p> <p>II. A party is not considered an innocent purchaser of real estate, as against prior equitable titles, where the record discloses such facts and circumstances as are sufficient to put him on inquiry.</p> <p>III. Where circumstances of fraud exist on the part of a purchaser of real estate or his assignee with notice thereof, lie will not be entitled to compensation for improvements made on such fraudulently acquired property.</p>

This is an application for a mandamus to compel the Postmaster-General to readjust the salary of the relator as postmaster at… Held: and still holds, said office. He also represents that he received a circular from the Postmaster-General, dated June 1, 1871, requiring him to keep an accouut of the amount of stamps cancelled at the office for the six months beginning July 1,1871, and ending December 31,1871, and the amount of unpaid letters, or newspapers and other…

<p>This court will not grant a rule on the Postmaster-General to show canse why he should not be compelled to perform an executive act which requires investigation and the exercise of judgment, in a case where it appears from the petition itself that lie has acted upon the subject and disposed of the question submitted to his judgment.</p>

<p>I. In a bill by a judgment creditor, it is absolutely necessary to aver that an execution has been issued and duly returned milla bona ; and it is not sufficient simply to aver that the defendant has no property subject to execution.</p> <p>II. It is not competent for a. court of equity, at the instance of a subsequent incumbrancer, to divest trustees of the title to property vested in them for a particular purpose, in special confidence and with certain discretionary powers, and to substitute in their place, without their consent, any other person or persons to make a sale of the property or to execute the trust, in the absence of fraud, incompetency, misconduct, irregularity, or other special equity.</p>

<p>I. The contract obligation of parties to negotiable paper is. that a person makes a note because he owes the money to the payee anti endorser, and no one is under any obligation to deal with it under any other presumption.</p> <p>II. Where a note is made for the accommodation of the payee, and the latter puts up his own property as collateral security for its payment upon obtaining a discount thereof, such collateral may be clmugcd to secure other liabilities, where the holder had no notice that the maker made it. for such accommodation, and had no notice of any agreement between the original parties that the payee was to secure its payment.</p>

The statement is mainly taken from the brief of defendant’s counsel. The bill in this cause alleges that the complainant is the owner of lots numbered 317 to 333 inclusive, in TTniontown, county of Washington, District of Columbia, and that she is the sole executrix of the last will aud testament of Ralph H. Darby, deceased, late of said county and District.

<p>I. The Baltimore and Potomac Railroad was authorized by act of Congress May 21, 1872, to lay its track along Sixth street, paying any damage sustained by the owners of property. If the company could not agree with the owner, it was required to cause the damages to be assessed by a jury. This the company neglected todo, and the court decides that the owner can maintain an action on the case for such neglect of the company, and that the plaintiff can recover in such action all the damages resulting to his property.</p> <p>II. Whether an action at common law without the statute would lie, qucere.</p>

<p>I. An issue of law produced by a joinder in demurrer cannot be hoard at the circuit, unless it is regularly placed upon the calendar.</p> <p>II. Knoedler v. Meloy, 2 MacA., 289. reaffirmed.</p>

<p>In an affidavit filed by plaintiff in an action against an endorser of a promissory note, under rule 73, he must set out a statement of the facts necessary to show defendant’s liability as endorser; such as that payment had been demanded of the maker, and that notice thereof liad been given to defendant.</p>

<p>I. Whim the return to a certiorari showed upon the face of the record that there was sufficient to warrant the conviction in the Police Court, the writ will be quashed. It may, however, be used in aid of a habeas corpus.</p> <p>II. Where a larceny consists of a single act, and the goods stolen belong fo different persons, it is unnecessary that there should be separate informations or indictments. In such case there can only be one conviction and sentence.</p> <p>III. An information or indictment charging the stealing of goods of different persons at the same time, in one count, would not be bad ’ for duplicity, provided the ownership of the goods is specifically set forth. But where there are several counts or separate informations. there can be but one conviction and sentence.</p>

A certiorari was issued to a justice of the peace under the following circumstances: The petitioner represents that on the 4th day of April, 1877, he rented certain premises from Albert Grant, situated in this city, and that he holds possession of said premises as tenant of said Grant; that on the 10th of July the defendants commenced proceedings before Charles Walter, a justice of the peace for the District of Columbia, under the landlord and tenant act, against the…

This is a bill of review to reverse two decrees in the original cause on the ground of error apparent on the face of the record. The bill of review sets out fully the pleadings and proceedings in the original cause, together with the decrees and the alleged errors therein.

STATEMENT 0E THE CASE. The Supreme Court of the United States decided in 2 Otto, 202, that no estate or interest remained in Charles L. Wallach after the confiscation sale of the premises in controversy, and that consequently his conveyance of the same, dated February 3,1866, to defendant John Van Riswick, after such confiscation, was of no force or effect, and constituted no defense to the right of the complainants to redeem the premises.

<p>I. In an action for damages to real estate caused by a railroad company in using a public avenue for loading and unloading- freight, witnesses who are acquainted with tlie value of property in the same locality may testify as to their opinion of the depreciation of said property, due to tlie use of said avenue for tlie purpose of a freight delivery.</p> <p>II. Tlie plaintiff in such action is entitled to damage where tlie railroad company uses the avenue for tlie purposes of a freight yard or freight delivery, and where the avenue is thereby obstructed and tlie value of plaintiff’s property diminished.</p> <p>III. In such action tlie plaintiff is not confined to structural damage to tlie building, or piiysiea! injury and harm to the land. He may also recover any other damage growing out of the unreasonable and nnlawful use of tlie avenue.</p>

<p>I. The collector of taxes in the District of Columbia was applied to for a statement of unpaid taxes upon certain real estate by one who did not disclose the object of the inquiry, or that lie was about to become a purchaser; and it was held that the District was not estopped from making sale of said property for unpaid taxes thereon, which had been omitted by mistake from the statement furnished on such request, although the applicant relied upon the collector's statement in afterwards purchasing’ the property.</p> <p>II. The duties of the collector are prescribed by statute, and lie is not required to make search and furnish statements of unpaid taxes. His statements and his mistakes in regard to unpaid taxes can never, therefore, operate as an estoppel upon the District of Columbia.</p>

<p>An appeal does not lie from an order awarding a writ of assistance, or from an order refusing- to grant it.</p>

<p>STATEMENT 0E THE CASE AND DECISION.</p>

STATEMENT 0E THE CASE. Ou June 14,1877, Henry Hill, Jr., filed a petition in bankruptcy, claiming to be the holder of certain overdue and unpaid promissory notes of the Capital Publishing Company, which he stated was a trader in the District of Columbia, and claiming also to be a creditor of the said company on an open account, and that he constituted one-fourth in number of the creditors of said company, whose debts exceed $250, and that the debts he held amounted to…

STATEMENT 0E THE CASE. This is the case of a petition, by the wife, for a divorce; and for cause of divorce she charges the defendant with cruelty of treatment towards her, endangering her life and health, and with desertion for the period required by our statute. 'Defendant’s answer sets up a decree of the Court of Common Pleas of Lycoming county, Pennsylvania, obtained January 28, 1876, by defendant, divorcing him from the bond of marriage with the complainant, upon his…

<p>STATEMENT 0E THE CASE AND DECISION.</p>

<p>STATEMENT OE THE CASE.</p> <p>By an act approved June 26,1878, the Legislative Assembly of the District of Columbia authorized the Board of Public Works to extend M street from New Hampshire avenue to Twenty-first street, aud to assess damages to the owners of property which may be taken for the extension, if any shall be sustained; and the amount necessary for payment of damage was thereby appropriated out of the general fund. The plaintiff brings this suit against tbe District to recover the sum of $893.65, tbe amount awarded to Mm by a jury for 1,190.82 square feet of ground condemned aud taken into said street from bis lot lettered G- in square numbered 72, in the city of Washington, and the further sum of $165 for 220.08 square feet taken for tbe same purpose from bis lot lettered B in said square. The plaintiff’s declaration avers that, pursuant to said act of Assembly, on October 1,1873, the defendant entered upon and took possession of said ground, and lias ever since retained such possession, whereby the said defendant became liable- to pay the plaintiff the sums of money awarded to said plaintiff by the jury aforesaid for said ground so taken into said street as aforesaid, amounting in the aggregate to the sum of $1,058.65. It is also stated that defendant, being so liable, promised to pay the same. The common counts are added. The survey or plan of M street as extended over the private property of plaintiff is annexed, as is also the surveyor’s certificate, which states that the said street is now paved, graded, and curbed, and showing also the quantity of land taken and condemned.</p> <p>The defendant interposed a demurrer on the ground principally that the condemnation of the land was ultra vires of the municipal corporation of the District of Columbia.</p> <p>On the 25th day of November, 1876, the demurrer was overruled and an appeal taken to the general term.</p>

<p>STATEMENT 0E THE CASE.</p> <p>Proceedings under the landlord and tenant act were instituted by the plaintiff against the defendants before Charles Walter, Esq., a justice of the peace, to recover possession of certain real estate in the city of Washington occupied by the defendants as tenants of the plaintiff. Before trial the defendants removed the proceedings to this court by certiorari upon a petition, of which the following is the substance:</p> <p>That the plaintiff has caused a summons to be issued by said justice to recover from the petitioners the possession of certain premises leased by the plaintiff to them on the 1st day of September, 1875, for the term of ten years, by lease signed, sealed, and acknowledged according to law; that the plaintiff claims that said lease had been forfeited by non-payment of rent and taxes, while they claim to have expended a large sum of money in necessary improvements, and such as were essential to enable them to profitably use the same as a public hall, for which it was leased, and for which they are entitled to credit, and therefore there has been no default and forfeiture; that the amount which they claim should be allowed is not less than $5,500, and they are advised that the questions and amounts involved in the case are such as a justice of the peace has no jurisdiction to try and determine; wherefore they pray this writ.</p> <p>By the return of the magistrate the original complaint and summons are sent to this court, from which it appears that on the 30th of December, 1876, a complaint was made before him by the Charter Oak Life Insurance'Company, by Asahel H. Dillon, Jr., its second vice-president, that the premises in question, describing them, were unlawfully detained from said company by the defendants, to whom it had leased them, and whose estate therein had been determined “ by default in the payment of rent, and also by default in the payment of the taxes as in said lease provided,” and a summons was asked,, as is usual. This complaint was sworn to by said Dillon; a summons was issued, returnable on the 11th of January, 1877, and was duly served January 3. Upon the return to said writ of certiorari a motion was made by the plaintiff’ at special term to quash the writ, and in case the motion could not be at once heard, that the defendants be required to give security for intervening rents and damages. The chief justice, bolding .the special term, upon the defendants giving such security, certified the motion to quash to be heard in general term in the first instance.</p>

<p>The case is stated in the opinion of the court.</p>

<p>STATEMENT OE THE CASE AND DECISION.</p>

STATEMENT 0E THE CASE. This is a judgment creditor’s bill, filed in aid of judgment against the defendant Sauderson, and to subject certain equities of said Sanderson to the satisfaction thereof. The supposed equitable interests arose out of two chattel deeds of trust executed by said Sanderson on the furniture in the Congressional Hotel, of which he was tenant.

This was ejectment brought by the plaintiff for the possession of a certain piece or parcel of land in the city of Washington, and a count is added to recover the rents and profits.

The bill was filed January 29, 1877, to compel the specific performance of a contract for exchange of real estate, and alleges, substantially, that on November 22, 1876, the plaintiff owned house number 1252 Eighth street northwest, subject to an incumbrance of $2,000, and agreed to convey it, subject to the incumbrance, to said Otis Bigelow ; that Bigelow agreed to .give him therefor house number 1138 Delaware avenue northeast, described as lot 14 in square 712, a farm in…

A decree was passed in this case August 31, 1878, and a motion for a rehearing was filed, without the previous permission of the court, on the 1st day of June following. The motion set forth two points or particulars in which the decree is alleged to be erroneous, and attached to such motion paper is an affidavit of the defendant’s solicitor verifying the facts upon -which it is founded.

<p>I. The publisher of a newspaper contracted with the Commissioners of the District of Columbia to publish the tax list for said District ; but before either party was called upon to perforin the same, Congress changed the law under which such contract was made. There was no special agreement under the new act, and it was held that he could only recover what the work was fairly and reasonably worth.</p> <p>II. When tlie law requires the tax list to be published in a daily newspaper, evidence is not admissible to prove tire cost of publication, composition, and distribution in a job printing office, or to prove the niere offer of the proprietor of another newspaper to publish the tax list of a subsequent year.</p>

Joseph Funk, of Tompkinsville, New York, obtained letters-patent of the United States No. 184,855, November 28, 1876, for certain improvements in lamps, relating particularly to that class of lamps known as Fresnel or concentric wick-burners, used extensively for the illumination of light-houses.

On the 3d day of March, 1859, Congress passed an act entitled “An act to provide for the care and preservation of the works constructed by the United States for bringing the Potomac water into the cities of Washington and Georgetown for the use and benefit of the inhabitants of the said cities.” In and by the first section of said act it was provided that the President of the United States should designate an officer of the United States corps of engineers, to be appointed…

STATEMENT 0E THE CASE. The Police Court of the District of Columbia was established by act of Congress approved June 17, 1870.

Upon the trial the plaintiff’ introduced evidence tending to prove that early in January, A. D. 1873, he entered into a contract with defendants to act as their agent to sell, in the territory south of the river Potomac, the right to use a patent machine, known as the “E. P. Welch & Co. middlings purifier,” for a commission, of fifteen (15) per centum upon amount of sales made or induced by him, and that he induced the sale of said machine to Haxall, Crenshaw & Co., of…

The plaintiffs are husband and wife, and they sue jointly in an action of trespass for an assault and battery committed upon the person of the plaintiff’s wife by the said Bernardina Teuber, who is sued jointly with her husband as defendants.

<p>I. The second rule of this court — providing that the May term of the Circuit Court shall not extend beyond the third Saturday in July, except to .finish a pending trial — considered in a case where the jury had been respited and afterwards reconstructed.</p> <p>II. Where tiie, plaintiff is allowed to amend exceptions to an auditor’s report, which amendment introduced new issue.s, the de.fendant is entitled to a continuance, in accordance with the fourth section of the act of the Maryland Assembly' of 1785, chapter 80, and the court is not at liberty' to refuse it.</p> <p>III. When it is manifest that- there has been no real trial of the issues formed by' the pleadings, and that such issues were not brought to the attention of the jury, the verdict will be set aside.</p> <p>IV. Practice explained where a cause is referred to an auditor under the Maryland act of 1785, chapter 80, paragraph 1, and how the same is to be tried before a jury on the'coming in of the auditor’s report.</p> <p>V. The court will recognize written stipulations entered into by attorneys in regard to the conduct of a cause, and will interfere to prevent their violation by either of the parties; and a continuance should be allowed until the next term when an agreement to that, effect has been entered into by the attorney's in the cause.</p> <p>VI. The, competency of attorney's to enter into stipulations with one-another considered, and the ultimate authority of the court in such matters recognized.</p>

The action was brought by the plaintiff to recover damages alleged to have been caused by the defendant in constructing its railroad along X street, in the city of Washington. The plaintiff is the owner of certain lots at and about the intersection of Third and X streets and Canal and K streets, where the injury complained of took place.

<p>STATEMENT OE THE CASE.</p> <p>The Freedman’s Savings and Trust Company filed the original bill, praying to set aside a release of a trust deed on the ground of fraud in its execution. On the 19th day of January, 1869, the defendant Dodge made three promissory notes in the sum of $18,000, payable to the order of one Benjamin Darby, and at the same time, with his wife, executed and delivered to the defendants Jones and Darneille the deed of trust in question, on certain real estate in the city of Georgetown, to secure the payment of said notes. The latter were endorsed by said Darby, and were for a valuable consideration sold and delivered to the complainant, and have ever since belonged to it. The bill then alleges that on or about the 22d day of July, 1871, the said Jones and Darneille, without the knowledge, authority, or consent, and in fraud of the rights of the complainant, and while the complainant was the holder and owner of the notes, executed and delivered to said Dodge a release bearing date December 31,1870, of the said deed of trust, and thereby undertook to discharge the real estate embraced therein from the operation of said trust, and that said Dodge, Jones, and Darneille knew that the notes were then due and unpaid, and that they were the property of and held by the complainant. The bill concludes with a prayer that the release be decreed to be null and void, and of no effect as against the complainant, and that the real estate be sold under the decree of this court, and that out of the proceeds the amount due the complainant on said notes be paid; and that complainant may have a judgment against said Dodge, and execution thereof as at law. The cause was heard at the special term upon pleadings and proofs, and the bill dismissed. The general term reversed this determination, and passed a decree annulling the release, and setting aside two other conveyances of the property that had been made by the parties, and directed the sale of the property in parcels, and that the proceeds arising from such sale should be applied to tbe extinguishment of the amount due upon the said promissory notes. The decree then provides that “ the plaintiff have and recover of the defendant Kobert P. Dodge whatever amount may remain due upon the three promissory notes mentioned and described in the bill of complainant, and made by the said Robert P. Dodge after the application thereto of the proceeds of said sales, together with the costs of this suit, and that the said plaintiff have execution therefor as at law.”</p> <p>From this decree an appeal was taken to the Supreme Court of the United States, and it was there affirmed. (2 Otto, 370.) Upon the remittitur of the case to this court, an application was made on the decree of the general term, and on the decree of the Supreme Court of the United States affirming same, for the appointment of á trustee to sell the property; and on the 14th day of March, 1877, an order was passed appointing a trustee, and directing the manner of his proceedings in conducting such sale. The report of the trustee being made, a reference to the auditor took place to state his accopnt and to make the proper distribution of the fund. The report of the auditor shows that the proceeds of the sale are insufficient to pay the debt and interest thereon, and that such deficiency amounts to over the sum of $7,000. A motion was then made in the special term for a personal judgment against the defendant Dodge for the amount of the deficiency, as provided for in the decree of the general term, and that motion has been certified here to be heard in the first instance.</p>

<p>STATEMENT OE THE CASE AND DECISION.</p>

STATEMENT 0E THE CASE. The declaration sets forth that the defendant, jointly and severally with two others, executed a bond dated May 27, 1872, to the plaintiff, as guardian, in the sum of $12,000, subject to the condition for the payment of the sum of $5,725, with interest, on the 1st of December, and that there is due and unpaid a large amount thereon. The following is the concluding averment: “ The defendant was, at the time of making her said bond, a married woman.

The first count in the declaration sets forth that on May 20,1870, Congress passed an act to incorporate the defendant by the name 'and style of the “ Washington Market Company,” and provided in such act that, in consideration of the privileges thereby granted, the said company should pay yearly, during the term of niuety-nine years, to the city of Washington, the sum of $25,000, which sum should be set apart and expended by and under the direction of said city for the…

These three eases arise upon three notes given by the Vestry of St. James’ Parish of Washington, District of Columbia, for the purchase-money of property bought by the parish for church purposes. The other facts are sufficiently stated in the opinion.

This was a civil suit commenced before a justice of the peace in May, 1878. On the day to which the ease was continued the parties appeared and the plaintiff' demanded a jury trial; and after hearing the evidence on both sides the jury returned a verdict in favor of the plaintiff for $90.95, with costs.

This is a bill in equity filed November 21, 1876, and the answers of defendants Ceas and Corcoran were filed February 6, 1877; and on February 20, 1878, no replication having been filed to said answers, the said defendants obtained an order ex parte, or, rather, as of course, dismissing the bill for want of prosecution.

The cause was heard at the general term in the first instance upon the following stipulation of facts: “ It is hereby stipulated and agreed between counsel, as well for the plaintiff as the defendant in the above cause, that the following is a true statement of all the facts material to the issue in the above cause, and necessary to be brought to the attention of the court for the decision of the same: “ 1st. That the plaintiff’, William W. Roderick, from the 1st day of…

STATEMENT 0E THE CASE. This is an action to recover the amount of a promissory-note made by C. S. Fowler & Co., in favor of Rachel Pront, for the sum of $1,600, with interest from date, dated August 1, 1860, and payable on demand. It was admitted at the trial that the note was the note of the firm of Charles S. Fowler & Co., and was wholly in the handwriting of Charles S. Fowler himself.