Volume 11 — District of Columbia Reports

<p>Statement oe the Case.</p> <p>The bill, filed November 14, 1877, stated that, on the said 1st day of October, A. D. 1872, the “ New York, Alexandria, Washington and Georgetown Steamship Co.,” in violation of its charter, and in excess of its corporate powers, undertook to and did loan unto the plaintiff', Mary L. Piper, the sum of nine thousand dollars for five years, and in violation of its charter, and in excess of its corporate powers, undertook to and did receive the promissory note of the said Mary L. Piper, payable to its order five years after date, with interest at ten per cent, per annum, payable semiannually, secured by a deed of trust from plaintiffs, which said trust purported to convey certain lots of ground in the city of Washington, the title of which was in said Noyes as trustee for Mrs. Piper, unto the said William B. Todd, jr., as trustee, with power to him upon the request of the holder of the said note, to sell the land at public auction in the event of the non-payment of said note or the interest thereon.</p> <p>That the said “New York, Alexandria, Washington and Georgetown Steamship Company,” as plaintiffs are iuformed and believe, has become merged into or in some way has been succeeded by the said defendant company, “ The Iuland and Seaboard Coasting Company of D. C.,” and the said last named company claim to be the owner and holder of the said promissory note ; and because of the non-payment of said note, and one instalment of interest at ten per cent., it has required the said Todd to advertise the said property for sale at public auction, and he has accordingly so advertised the same for sale.</p> <p>That it is no part of the bnsiness of said defendant company to purchase or hold notes secured by real estate, or to deal iu the same or similar transactions, or to loan moneys upon real estate or other securities; that no such power is expressly given nor necessarily incident to the powers granted to said company by its charter ; that no such power was expressly given nor necessarily incident to the powers granted the said “ New York, Alexandria, Washington and Georgetown Steamship Company,” by its charter; that the business of the said defendant is expressly limited by its charter, to running vessels propelled by steam, and to prosecuting a general coasting trade in the transportation of passengers and freight; and it cannot in law .be the holder and owner of the said promissory' note.</p> <p>Plaintiffs aver that said note and conveyance to Todd are absolutely void ; and that defendants are seeking to enforce a void contract by extra-judicial proceeding, and they pray for an account, and that said note and conveyance to Todd be decreed to be null and void, and that the same be vacated and annulled, and that defendants may be perpetually enjoined from proceeding to enforce the terms of said conveyance or advertising the said land for sale thereunder.</p> <p>The answer admits that the said New York, Alexandria, Washington and Georgetown Steamship Company did, on the 1st of October, make the loan to the said Mary L. Piper of said sum of $9,000, and received therefor the promissory note of the said Mary L. Piper, and that the deed of trust was delivered and recorded as charged in said bill.</p> <p>Defendants deny, however, upon information and belief, that the making of said loan and the acceptance of said note and deed of trust, were in violation of the law under which the said company was incorporated, or beyond its authority.</p> <p>They admit that the said Inland and Seaboard Coasting Company became, and is the holder and owner of said promissory note, and requested the said William B. Todd, jr., the trustee, to proceed to execute the said trust according to the conditions thereof; and that defendant, William B. Todd, jr., has, as such trustee as aforesaid, advertised said property for sale as charged in the plaintiff’s bill.</p> <p>That prior to the maturity of said note, and without any notice of any infirmity in the title of the said New York, Alexandria, Washington and Georgetown Steamship Company thereto, the said Inland and Seaboard Coasting Company, for full and valuable consideration, bought of the said New York, Alexandria, Washington and Georgetown Steamship Company the said note and certain other property, for the purpose of carrying on the business for which said Inland and Seaboard Coasting Company wras organized, and said purchase was made with the knowledge and assent of the boards of directors and stockholders of both said steamship companies, and that said note was acquired solely for the purpose of obtaining therefrom, on its maturity, money for the transaction of the legitimate and ordinary business of said company, and not with any intention of holding the same after it should become due. That the purchase of said note -was made by the said Inland and Seaboard Coasting Company on the 30th of May, 1877, and the consideration paid therefor was the stock of said company.</p> <p>The defendants aver that said original transaction between the said steamship company, and the said Mary L. Piper, was made in absolute good faith, and at her instance and request, and that there is justly due from her to this defendant, the Inland and Seaboard Coasting Company, the holder of said note, the repayment of the money actually received by her, with interest thereon according to the tenor of said note.</p> <p>The charter of the New York company is not made an exhibit to the bill, nor does the bill recite any of the provisions of the law of New York under which that company was organized. The Inland Seaboard Coasting Company was incorporated by act of Congress approved March 3,1875, 18 Stats., 513. A decree was passed December 27, 1878, denying injunction and dismissing the bill.</p> <p>After this decree was entered, the following stipulation was made and filed :</p> <p>“It is hereby stipulated and agreed that the above-entitled case shall and may be heard in the General Term as though set for hearing in the equity court, on bill, answer and replication ; and that neither party shall call in question the regularity of the order of the court in dismissing said bill.”</p>

<p>1. Where the justice who tries a cause entertains a motion on his minutes for a new trial, on the ground of insufficient evidence and excessive damages, such motion must be decided before a case can be settled for an appeal to the General Term.</p> <p>2. A motion for a new trial on the ground that the verdict is not supported by sufficient evidence, is addressed to the discretion of the court, and the verdict will not be disturbed when it is based upon any considerable amount of testimony. A conflict in the evidence will not justify a'new trial.</p> <p>3. When, in the opinion of the justice who tries a cause, the damages are clearly excessive, and where the right of the plaintiff to recover something is established by ample testimony, the court may properly require a remittitur of the verdict to a fair and reasonable amount, or in default thereof to grant a new trial.</p>

Action of assumpsit upon a promissory note against the maker and the administrator of the indorser. Fleas, never indebted, and that defendants did not promise. On the trial, the plaintiff* gave the note in evidence, and he offered proof that the note was protested for non-payment, and that notice of protest was deposited in the post office in the city of Washington, directed to the indorser at his place of business in said city in his lifetime.

This action was brought to recover the' amount of a contingent fee for services as attorney at law, in conducting suits for the defendant to recover a square of ground for her, situated in the city of Washington The contract was oral, and described in the third count of the declaration as follows: That they, the said plaintiffs, in consideration of the sum of five thousand dollars ($5,000) to be paid to them as aforesaid by the said defendant out of the proceeds of th.e sale…

March 28, 1870, an ordinance in the usual form was passed by the late corporation of Washington city, requesting the mayor to have the footways paved, &c., on First street east, between D street south and Georgia avenue.

<p>1. An order for the commitment of a party for contempt of court, which does not express or limit the period of imprisonment, is void up'on its face, and the prisoner may be discharged upon habeas corpus.</p> <p>2. Upon an appeal from a decision of a judge of this court, discharging a writ of habeas corpus, and remanding the prisoner, the General Term is not confined to the reasons assigned by the judge for his decision, but may review the order appealed from on its merits.</p> <p>3. Upon a return of the warden of the jail to a writ of habeas corpus, that he holds the prisoner by direction of the marshal, the General Term will look into the order of the court directing the marshal to arrest and imprison the petitioner.</p>

<p>1. Section 175. B. S. D. C., requiring the collector to report all tax sales to the recorder of deeds, is not superseded by the act of the legislative assembly of August 23, 1871.</p> <p>2. The District of Columbia is estopped from enforcing a tax sale where there has been a failure to report such sale to the recorder of deeds, as against one who subsequently purchased the land for the full value thereof and without any notice of the sale.</p> <p>3. The mere filing of such report in the office of the comptroller is not constructive notice to a bona fide purchaser.</p>

This was an action to recover the sum of thirty thousand dollars, which had been paid by the plaintiff for taxes assessed upon their property in Georgetown, for the years ending June 30, 1873, down to and including the half year ending •June 30, 1878. These taxes were paid under a protest that the property upon which they were assessed was exempt from taxation, and that the college authorities intended to institute suit immediately to recover the amount so paid.

STATEMENT 0E THE CASE. This was a bill in equity setting forth that plaintiff had purchased certain goods and chattels and household effects, giving his note secured by a deed of trust upon the same, to secure the payment of the purchase money. That default being imple in the payment of the note, the trustee now threatened to proceed under said trust and to remove all of said personal property, &c., and sell them at public auction to satisfy said indebtedness.

<p>Beal estate brokers employed to exchange property are not entitled to commissions from both parties, and where they have received compensation from one party, they cannot recover from the defendant, who employed them, and who was the other party to the exchange.</p>

<p>A member of Congress of the United States is at all times as liable to service of process, as any other individual, except that during his attendance on the sessions of Congress, and in going and returning, he is privileged from arrest in any private suit or action.</p>

<p>1. It is irregular to bring a cause to the General Term on a bill of exceptions and a separate case embracing all the evidence. When there is an appeal from an order overruling a motion for a new trial on the ground of insufficient evidence or excessive damages, a case may then be made, and in order to obtain the ruling of this court upon a question of law, the exceptions should be embodied in the case.</p> <p>3. The plaintiffs agreed to do all the work in sweeping and keeping clean the cities of Washington and Georgetown, and all payment* were to be made monthly upon accounts sworn to by the contractors and upon the monthly certificate of the superintendent of streets. It was held erroneous to instruct the jury that the plaintiffs could recover without such statements and certificates, or at least excusing their non-production. Held, also, that this condition was not waived because the District had previously made some payments without •them.</p>

<p>The Case is stated in the opinion.</p>

In these causes declarations were filed containing the money counts with accompanying bills of particulars, and verified by affidavits under the 73d rule of court.

<p>Four individuals entered Into an agreement to establish a cemetery near Washington, and tiie title of a tract of land was conveyed to one of them for that purpose, and he shortly afterwards conveyed to one of the others, who still holds the legal title. T hey prepared an act of Congress incorporating the (Menwood Cemetery Company, the managers of which were to be elected by the proprietors of the ground. There had been a public dedication upon the premises, conducted with religious ceremonies. The land contained ninety acres, thirty of which were enclosed and used for sepulture. Nearly two thousand lots were subsequently purchased, and the interments had been nearly as numerous. The deeds to the lot-owners were in the name and under the seal of the corporation, and signed by the president thereof, ■ who wa« also the holder of the legal title. The rules and regulations were all in the name of the corporation. The lot owners becoming dissatisfied with the management of the cemetery, procured an amendment of the charter, pioviding for an election of three trustees by the lot-owners, and two by the original proprietors. The president, holding the title, denied there was a corporation ; refused to appoint two trustees, and claimed to hold the property as his own. The trustees appointed by the lot-owners filled the vacancies. Under these circumstances, it. is held that the property was dedicated to the purposes of a cemetery in its entirety, and that the owner of the legal title cannot now deny the existence of the corporation, or that he is its president, or that the. lots are held in pursuance of the charter. It was further held that the amendment by Congress was in harmony with the original charter, and was necessary to protect the interests of the lot owners; and also that the president was bound to transfer the legal title to the corporation upon.receiving such compensation as may be judicially determined.</p>

<p>Payments of interest and of part of the principal of a promissory note, and which were endorsed thereon, by one of the joint makers before the said note was barred by the Statute of Limitations, do not deprive the other joint maker of his defense under the statute where the latter had no knowledge of such payments and had not assented thereto.</p>

<p>1. A plea to a bill in equity is overruled by an answer which contains the same defences that are alleged in the plea. An exception to this rule intimated, and the distinction between pure and negative pleas pointed out.</p> <p>■2. The rules prescribed by this court must govern the practice in matters of pleading in equity.</p> <p>3. A parol agreement concerning land which has not been executed cannot operate as a payment of an indebtedness secured by deed of trust.</p>

<p>1. An express company upon receiving three packages for transportation gave the shipper a receipt in which it was stated that the company were “ forwarders only : ” Held, that these words were ineffectual to restrict its liability. The law determines the character of the occupation of expressmen ; it assigns to them the liabilities of common carriers, and this status is not affected by an agreement between the, parties that they are not carriers but u forwarders.”</p> <p>2. The contract of a common carrier which stipulates for exemption from responsibility for the results of his negligence is void as against public policy.</p> <p>3. The provision in a receipt given by an express company that the latter will not be liable beyond a certain sum if the just and true value of tlie property be not declared at, tile time of the shipment, is valid to limit the liability of the carrier as an insurer.</p> <p>4. But a condition of this character which seeks to cover the negligence of the carrier is void.</p> <p>5. The omission of one dealing with a common carrier to advise him as to the value of the article presented for carriage, and that its actual is greater than its apparant value, will not affect his rights, unless it justified the carrier in adopting the course of conduct through which the loss occurred.</p>

The declaration reads as follows : “ The plaintiff sues the defendant for that, heretofore, to wit, prior to the 1st day of February, 1874, the Board of Fire Commissioners of said District duly appointed the said Thomas H. Hines, then in full life, to the place of private in the Fire Department of said District, which said place, by provision of law, was for and during good behavior, and for and at the annual compensation of $720, and being so appointed he, the said Thomas…

STATEMENT 0E THE CASE. This suit grew out of the following circumstances : Nicholas Acker was the owner of part of lot 5, in square 685, fronting about 37 feet 6 inches on the east side of North Capitol street. He built a house on the southern part of the lot, having a front of 18 feet 6 inches. Some years afterwards he built another house on the north part of the lot, leaving an alley way under the house and adjacent to the south house of 3 feet in width.

Motion in General Term to quash an alternative writ of mandamus at common law. The writ was founded upon a petition of the relators averring that they had been duly elected at an annual meeting of the Mutual Eire Insurance .

<p>Congress has no power under the Constitution of the United States to delegate general legislative authority to the local government of the District of Columbia; hence, as the act of the late legislative assembly said District, making judgments obtained in this court liens on equitable interest on real estate, was an act of general legislation, it is inoperative and void.</p>

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

<p>1. This court has authority by the act of Congress under which it is organised to prescribe rules of practice, and the 73d rule requiring certain pleas to be verified by affidavit is not unconstitutional.</p> <p>2. The rule does not require that all the evidence of the case shall be incorporated as the affidavit; it is enough that the grounds or foundation of the defence are so sufficiently shown as to impress the court with the fact, that if the allegations are true the party has a defence, and an affidavit which refers to the facts set forth in the plea; and makes oath to the same is a sufficient compliance with the rule.</p> <p>3. Such an affidavit may be made by an agent or attorney and where so made may be upon information and belief.</p>

<p>The Case is stated in the opinion.</p>

<p>When an original administratrix collected a claim of the deceased against the United States, through her attorney, it is considered administered assets ; and on the removal of the administratrix for failure to give additional security, under sections 974. 975 and 97G, the administrator de bonis non is not entitled to recover the money from the attorney.</p>

<p>The Case is stated in the opinion.</p>

<p>The Case is stated in the opinion.</p>

On the 18th of March, 1872, Lewis Carusi made his last will, containing the following provision : “ Second. Held: used and enjoyed by him, his heirs, executors, administrators and assigns forever, with the hope and trust, however, that he will not diminish the same to a greater extent than may be necessary for his comfortable support and maintenance ; and that at his death the same, or so much thereof as he, the said Samuel Carusi, shall not…

<p>1. A demurrer to plaintiiff’s plea which, among other things, alleges that the property of decedent was administered, does not conclude the plain . tiff as to the question what amounts in law to administering.-</p> <p>2. Money collected by an executor or administrator, unless at least specially set aside and specially designated as the assets of the deceased, is administered assets, for which the original administrator is ,. to account directly to the creditors, legatees or distributees of the • deceased, and not to the administrator de bonis non. Affirming Wilson vs. Arriek, ante, 228.</p> <p>3. The Orphans Court is one of limited statutory powers. The act of ' Congress-gives it express power to direct the delivery of unadmin- • istered assets by a displaced administrator to his successor, and this impliedly excludes the power to give administered assets the same - direction. A decree to the latter effect would transcend the jurisdiction of the court and be void, and, being so, may be assailed in a ' collateral proceeding.</p>

<p>1. The owners of squares and lots fronting upon a street (the fee simple of which is in another party), and separated by it from navigable waters, are not entitled by virtue of such ownership to construct wharves along the shore parallel with the street and opposite their property.</p> <p>2. The United States is the owner of the fee simple of the streets in the city of Washington, and as such, have the exclusive right to construct or license the construction and use of wharves at the termini of streets running to the river, and along the street which borders on the river.</p>

This was a bill of interpleader, filed by Charles D. Gilmore, who alleged that he had in his hands a fund of $2,500, to which the several defendants, Devlin, Hilton, Dickinson and Sherman, made separate claim, and which he asked leave to pay into court, and that the defendants might interplead between themselves as to its ownership. The facts of the case are as follows : John Devlin was arrested during the late war by the military authorities.

Bill in equity for an injunction and account. By an instrument in writing, executed May 11, 1876, Lauren C. Woodruff, of New York, acting through George E. Fisher and Wm. Held: to convey title. Now, then, Mr. Stevens was unquestionably out of that office, and was no longer the de facto president of that company, and never was reinstated in that office, and never exercised any of the functions of that office up to the day when this suit was brought.

STATEMENT 0E THE CASE. On April 26, 1876, the defendant, Wylie, conveyed lot 28 of Turton’s subdivision of square 179,in this city to defendants, Augustus Davis and Callan, as trustees, to secure two notes, each for $550,payable to the order of Charles T. Davis in one and two years with interest at 10 per cent, until paid, with power to sell in ease of default. The notes were received by the complainants before maturity for full value.

<p>1. A sale under a deed of trust, given to secure the payment of a debt, will be set aside where all of the trustees are not present at the sale.</p> <p>2. Nor can the absent trustees, with no information as to the state of affairs at the sale, ratify the act of his co-trustee in selling the property ; whether he could do so even upon full information as to all the facts, quatre.</p>

<p>1. Where the maker and indorser of promissory notes are sued upon a declaration containing the money counts only (the notes being annexed), and a discontinuance is entered as to indorser, the affidavit filed at the time of bringing the suit applies to the declaration so amended, and unless the pleas are verified, the plaintiff is entitled to payment under Buie 73.</p> <p>2. The affidavit of plaintiff’s cause of action, though inartifieially drawn, if in substantial compliance with the rule, will be sustained.</p>

<p>The complainant, being owner of certain real estate, conveyed it to R., who executed a note and deed of trust thereon to secure the price. R. executed a second trust upon the same property. Upon default being made on his note, complainant took a reconveyance of the property and surrendered the note and trust deed. He was ignorant of the second trust, and would not have surrendered his own had he been informed of it. R. did not so inform him, but remained silent, and gave no intimation of the second trust.</p> <p>Held, The reconveyance to complainant was in the nature of a release, and in agreeing to it, the second trust became a material fact, and as R. was responsible for its creation, he was bound to disclose it at the time of the agreement to recorivey, and his omission to do so was a fraud upon the complainant, who was entitled to have the lien of his trust reinstated and given priority over the second.</p>

<p>1. Under the act of Congress of 1848, and the ordinance of 1862, of the city of Washington, prohibiting the occupation of the streets of the city for private purposes, anything in the shape of an obstruction which is intended to remain permanently upon a part of the street, and to be used by the owner exclusively for private purposes, comes within the inhibition of the law.</p> <p>2. This inhibition, however, is not to be considered as interfering with the mere temporary use of the sidewalls by business men in the transaction of their legitimate business, in the display of their goods, wares and merchandise in front of their stores. These being put upon the street temporarily, and intended for removal, are licensed obstructions under the act of 1856.</p>

<p>The law confers upon the Commissioner of Patents the power to institute an inquiry into such allegations of public use and sale as would bar a patent; and this inquiry, though ex parte in form, is substantially . a contest to be regulated and determined by the rules of evidence; hence ex parte affidavits of those adverse in interest, taken without notice and opportunity to cross-examine, are inadmissible upon the merits.</p>

<p>1. An assignment of a patent is not void because it does not set forth the first names of the assignees; thus an assignment to “ Fisk, Clark and Flagg ” is good. So, too, letters-patent of the United States for an invention may issue to assignees so designated. In both cases the parties need only to be ascertained by sufficient parol proof. So, too, where the subject-matter of assignment is designated as the exclusive right to an invention described in a specification already prepared and executed by the assignor, the means of ascertainment are furnished when this specification is supplied as proof.</p> <p>° 2. In like manner, where a patent for an improvement describes the thing to be improved, as what is' “ known to the trade as flat scarfs,” such a designation is in contemplation of law certain and definite. What a “ flat scarf,” as known to the trade, actually was, and what was meant by the trade,” are matters to be ascertained by proof.</p> <p>3. However careful the court will be not to enlarge a claim for a patent, it will nevertheless apply intelligently and fairly, for the purpose of ascertaining its actual meaning, every part of the specification to which it refers; and it will consider as embodied in the claim whatever by fair interpretation is drawn into it from other parts.</p> <p>4. Letters-Patent No. 222,264 are declared to be valid, and an alleged infringement of same, considered and decided so to be by the court.</p>

<p>1. The law presumes that when the grand jury find an indicment, they find it upon the sanction of the necessary facts and under the restrictions and within the purview of the oath they have taken; it is not necessary, therefore, that it should appear of record that the indictment was found upon testimony duly sworn.</p> <p>2. Where a so-called game of chance was so operated by the defendants as to control the result in their own favor, and to allow the prosecuting witness no possibility of winning—the victim parting with his money through fraud and fear—such an offence is larceny.</p> <p>3. The court may, in its discretion, give its opinion upon the facts in evidence ; but it ought to he done cautiously, and never without a warning to the jury that they are the triers of the facts in the case, and that the opinion of the court in no wise concludes their judgment.</p>

<p>1. A joint patent cannot issue to two where one of them has no interest in the invention.</p> <p>2. The application for the invention must he in the name of the inventor; but if the invention has been assigned, the patent issues to the assignee.</p> <p>3. An assignment which would entitle the assignee, under the statute, to have the patent issue directly to himself, must be a formal assignment of a completed invention.</p> <p>4. But a court of equity will regard that as done which was agreed to be done, and will specifically enforce an agreement that further inventions shall be the property of the intended assignee, by requiring a party to do everything necessary to make the agreement effectual, viz., to execute a formal assignment and to make the necessary application for the patent.</p> <p>5. A court of equity will not aid an inventor to obtain a patent for himself in direct violation of his agreement transferring the property in his invention.</p> <p>6. Where the invention is a joint one, neither one of the inventors can claim a patent to himself alone.</p>

<p>1. Gr. and W. held, as tenants in common, certain real estate in this District; W. died, and his interest descended to his heirs. For a series of years G., and afterwards his personal representatives, paid the taxes on the moiety which descended to the heirs of W. On a, bill filed for a partition or sale of this property, it was</p> <p>Held, That the statute of limitations might be pleaded to the claim of G.’s representatives to be reimbursed from the fund for the taxes paid by them and their testator, G., on W.’s moiety of the estate.</p> <p>2. Claims by trustees against heirs to be reimbursed for taxes paid on the inheritance, and resting upon peculiar facts, stated and decided by the court.</p>

On June 6th, 1888, Washington D. Quinter entered into a written agreement to purchase of John B. Alley a certain lot in the city of Washington, and the next day Alley tendered Quinter a good and sufficient deed in fee-simple to the lot. Quinter refused to accept the deed or to comply with his agreement, upon the ground that the title was not in Alley but in James M. Latta.

<p>1. The Orphans’ Court has the right to acquire information by any of the instrumentalities known to our practice, either by depositions, viva voce examination in open court, trial by jury, or reference to the auditor.</p> <p>2. The possession of negotiable paper, payable to bearer, or negotiable paper, payable to order and endorsed in blank, is prima facie evidence of title, while the possession of a note payable to order, but not endorsed, is no evidence whatever of title, but is rather a suspicious circumstance, which needs full explanation from the holder.</p>

This was an action for damages for false arrest aud imprisonment of plaintiff’ by defendant as sergeant-at-arms of the House of… Held: and the Supreme Court of the United States affirmed its judgment in that respect, that a member of Congress is not answerable in damages for his official action ; and consequently judgment was entered in favor of those defendants, and they are out of this ease. It is, therefore, now, a ease only against the defendant John G. Thompson.

<p>1. An affidavit in support of a motion for an attachment against a party who has been subpoenaed as a witness but who has failed to attend, ought to state that he is a material witness, otherwise the attachment should not issue.</p> <p>2. In order that a witness shall he brought into contempt for disobeying a subpoena, it is necessary that there should have been a valid subpoena, and in addition a valid service of it.</p> <p>3. The Supreme Court of the District of Columbia in addition to other powers not vested in the circuit,and district Courts of the United States, possesses all the jurisdiction and powers of those courts.</p> <p>4. In a case of doubt as to the meaning of any of the sections of the Revised Statutes, the court is at liberty to refer to the old statutes, from which they were compiled, and to compare them therewith.</p> <p>5. The process of subpoena and the process of execution at the instance of the United States may run from this District into any of the districts of the United States.</p> <p>6. The provisions of section 877 of the Revised Statutes of the United States in regard to the form of subpoena are applicable to this court, and are mandatory; a subpoena, therefore, which does not comply with the form prescribed by the statute is void.</p> <p>7. The service of the process of subpoena issuing out of this court must he by the marshal of the district to whom it is directed, or some one previously designated by the court; the act of the deputy marshal in serving it is to be considered, under the law permitting the marshal to appoint deputies, the act of the marshal, and the latter must sign the return.</p> <p>8. An admission by a party, of the service of a subpoena upon him by a person shown not to have authority to serve the same, is not an admission of the validity of the service.</p> <p>9. Service of a subpoena issuing out of a United States court must be in conformity with the laws of the United States and not with those of the State in which it is served.</p>

<p>1. An averment by a trustee, appointed under a decree of court which required him to give bond that he had accepted said appointment, complied with its terms, and duly qualified as trustee, is a sufficient averment, in a suit brought by such trustee as to his having ■ given bond and properly qualified under the decree.</p> <p>2. Where a Virginia corporation conveys by deed to trustees all its property for the benefit of its creditors, and among its assets are uncalled for and unpaid subscriptions for stock, and in a proceeding in chancery a trustee is by decree substituted in the place and stead of the trustees named in the deed; and by the same decree an assessment, and call is made upon the unpaid subscriptions for stock to pay debts of the corporation, and the substituted trustee is authorized and directed to collect and receive the said call and assessment and to take such prompt steps to that end, by suit or otherwise, and in such jurisdiction, as he may be advised:</p> <p>Held, That such substituted trustee sues as trustee under said trust and not as receiver.</p> <p>3. That said substituted trustee can sue in his own name in the District of Columbia.</p> <p>4 That apart from the express authority given by the decree the said substituted trustee, being appointed under the laws of Virginia, is empowered under the statute of ttat State to maintain the action.</p> <p>•5. That no conveyance is necessary from the original trustees to the substituted trustee.</p>