Volume 12 — District of Columbia Reports

<p>1. Under tlie Married Woman’s Act of 1869, It. S. D. C., a married woman owning a separate estate may contract to repair her house, or to have anything done to it that will put it into a condition to make it rentable.</p> <p>2. Defendant, a married woman, owned a house as her separate estate. Plaintiffs sold and delivered furniture to her upon her promise to pay for same out of said estate. The defendant bought and used the furniture for the purpose of furnishing the house.</p> <p>Held, That this was a contract having relation to her separate estate.</p>

Appeal from Decree in Special Term. Clement H. Brooke, husband of the complainant, was the owner of a house air'd lot in Washington, D. C., upon which there were two deeds of trust, the second being… Held: because that note was then uncollectable. The testimony shows both the maker and the endorser to have been insolvent. 1. If it be true that complainant was deceived, she has been benefited by the deceit; the sale of her home was prevented.

Appeal from Decree in Special Term. The defendant, Kenny, being indebted to Aitken, Sou & Co., of New York, in the sum of $797.80, for which they held his three promissory notes, agreed to secure them by a deed of trust, upon all the merchandise and other chattels in his store, being ah the property of every kind that he possessed.

<p>1. Where the first of a series of three notes, payable in one, two and three years, and secured by deed of trust, had become overdue and was taken up, at the reguest of the maker, by a third party, who became the holder thereof, the payee delivering it uncancelled, the question whether such a transaction operated as a satisfaction and extinguishment of the note, so as to disentitle the holder thereof to any share in the fund, when, afterwards, through default in payment of the other two notes, the property is sold for a sum less than the incumbrance, is one depending upon the intention of the parties at the time of the transaction; if there was no intention to consider it as satisfied and extinguished, the holder will be entitled to share pro rata in the fund realized.</p> <p>2. A case of this character stated in which the court held there was no extinguishment.</p>

<p>1. A positive denial in the answer can only be overcome by the testimony of two witnesses, or of one witness and corroborating circumstances.</p> <p>2. When the only witness for the complainant is himself, his testimony in order to meet the positive and absolute denial of the defendant, should be vigorous, strong and clear.</p> <p>3. Where there is a dispute in regard to partnership matters, and the parties have been so negligent as to lose tbe evidence of the partnership, and have kept their accounts in so confused a way that the court cannot see what decree would do justice between them, the bill will be dismissed.</p>

<p>1. Payment of freight cannot be exacted of the consignee until there lias been such a discharge of the cargo as to enable him to ascertain whether the goods correspond with those ordered.</p> <p>2. This rule will not be modified because the cargo consists of ice, and consequently liable to diminish by melting when exposed upon the wharf to the heat of the sun.</p> <p>3.- There is nothing in the delivery of the goods upon the wharf before payment of freight at all inconsistent with the retention by the master of his lien for the freight.</p> <p>4. The master lias a right to demand payment of the freight before the goods are talcen from the wharf if such removal interfere with the reasonable enforcement of his lien, and, if the cargo be too large to be ■landed in one day, he may require a pro rata payment as regards value before the portion-first landed can be taken away.</p> <p>5. As a consignee is under no obligation to receive or pay for goods dif- • fering in character from those which he contracted to buy, there can be no duty devolving upon him to pay freight for the carriage of such goods.</p> <p>6. A consignee of a cargo of ice cannot refuse to pay freight for the entire cargo as originally shipped, because part of it has been diminished • by melting. ■ For any unusual loss or diminution he might have a remedy against the underwriter; hut since the cargo is, at the risk of the consignee from the time of its shipment and the mailing of the bill of lading, he is liable to pay the freight on the entire amount shipped ; his right to inspect the goods is for the purpose of ascertaining'whether they are of the character and description ordered.</p> <p>7. The consignees of a cargo of ice, which arrived in Washington, D. C., in the middle of July, wishing to inspect the cargo before paying the freight, proposed to the master of the vessel that if he would proceed with the delivery of the goods, they would pay the freight pari passu • or, if he preferred it, that the eargo on being landed should he stored in a convenient ice warehouse, belonging to the consignees, on the wharf. The master refused to do either, but demanded payment of the freight in full before the cargo was discharged. This the consignees refused, and in consequence of the disagreement the ice melted away in the hold of the vessel.</p> <p>Held, That neither of the propositions submitted to the master would, if accepted, have imperiled his lien for freight, and he was liable to the consignees for so much of the cargo as was lost.</p> <p>8. Semble, That a provision in a charter party, that the cargo shall be discharged by the consignee with the assistance of the crew, so far from giving a stricter right to the master to demand prepayment of the freight may have rather the contrary effect.</p>

Motion for a uow trial upon exceptions. This was an action of replevin “ for unjustly detaining one doctor’s phaeton and one set of harness.” Plea “ not guilty,’-’ and joinder.^Tniaintain his~sm^ Plaintiff claimed as owner of the property^ñtkgáv^in evidence the following paper: “Washington, D. C., September 22, 1875. “ This is to certify that I have hired of J. F. Bridget, a buggy and harness for the term of three months from date,, for the sum of $25 per month, together…

<p>1. Although a irauduleuS sale of goods be set aside, they are nevertheless liable to the landlord’s lien for rent due by the fraudulent ven-dee to the landlord upon whose premises they have been kept, and this notwithstanding there are judgment creditors of the vendor whose executions issued before the landlord’s lien attached.</p> <p>2. By the provisions of Section 678 of the Revised Statutes of this District, the landlord’s lien for rent, if it exists at the time he commences proceedings in attachment, continues until the termination of' those proceedings, and his lien is not destroyed by the fact that at the time of issuing his attachment the goods were in the custody of the marshal under a levy made at the instance of an execution creditor.</p> <p>3. An order unappealed from upon a hearing on hill and answer discharging a prior order restraining an execution sale of property and directing the marshal to pay certain judgments out of the proceeds, is not examinable on the hearing of an appeal from a decree subsequently made upon new and different facts raised by an amended and supplemental bill, filed by leave of court, when the leave granted to file the same does not reserve the right to raise any question as to the propriety of the order.</p> <p>4. Nevertheless the court, (referring to this order), express the opinion that the statute of YIII Anne, cli. 14, is in force in this District, and that if the marshal levy an execution and make sale of property, he is obliged, after due notice given him by the landlord, upon whose premises the goods are, to pay from the proceeds all rent due up to the time of the sale, and if the sale take place during the month there can be no division of the rent for that month. To compel the marshal to pay over one year’s rent, the landlord may move the court out of which the execution issues for an order to iiay the amount due him from the sale, and this motion may be made at any time before the money is paid over, the marshal being bound on the receipt of a landlord’s notice to retain the money.</p> <p>5. It seems, also, that the lien of the landlord is not lost or impaired by his suspension for a month of the execution issuing under the judgment obtained in the attachment proceedings.</p>

<p>1. The court in General Term will hear a motion for a new trial upon a bill of exceptions, notwithstanding no motion for a new trial had been made in the court below.</p> <p>2. An alteration by the endorsee or his agent increasing the rate of interest upon a promissory note if made without the knowledge or consent of the endorser and after it has passed out of his hands, is a serious and material change in the promise, and is sufficient to discharge him.</p> <p>3. A declaration in assumpsit consisted of a special count against the defendant as endorser of a promissory note, and also of the common money counts, having annexed thereto, as the only bill of particulars, the note sued on, the defendant being also the maker thereof. On the trial the note was shown to have been materially altered, as to the rate of interest, by the endorsee or his agent, after endorsement, and without the endorser’s knowledge or consent.</p> <p>Held, That by reason of the alteration of the note there could be no , recovery upon the special count. Neither could there be a recovery - upon any of the common counts for, in addition to the infirmity of an altered note as a bill of particulars, a liability as endorser does not imply a further liability by reason of the money that was advanced upon the note.</p>

STATEMENT 03? TIIE CASE. Motion, by both parties, for new trial on exceptions. This was a suit instituted by plaintiff to recover from the defendants $15,000 for rent of a wharf on the Potomac river, between Twelfth and Thirteenth streets west, in the city of Washington.

Frances I. Chapman, being the owner of certain real estate-in the city of Georgetown, D. C., and having in contemplation a marriage with Francis Dodge, executed to him on the 22d January, 1862, an ante-nuptial settlement,, thereby conveying to Dodge, as her intended husband,, all her property, real and personal, to be held by him in trust for her sole and separate use during her life, and “ so as that the same, and the income and profits thereof shall not be in anywise…

<p>1. The inquisition provided for by the act of Congress of May 21, 1872, granting the B. & P. E. E. Co., the right to lay its tracks along Sixth street in the city of Washington, was for a different purpose from that specified in the act of February 5,1S67, authorizing the extension of a lateral branch of that road into the District of Columbia. That of the act of 1867 aiqfiied to cases where the company desired to locate its road over any land within the District, and in the event of a failure to obtain the assent of the owner for any of the reasons set forth in the act, the company was to make application to a justice of the peace for the county of Washington, who thereupon was to issue his warrant to the marshaL requiring him to summon a jury to meet on the land and proceed to value the damages which the owner would sustain by its use or occupation by the company. But the damages to be ascertained under the authority of the act of 1872, viz., ‘‘ the appreciation or depreciation of the value of the property situated along- said street,” was a matter not provided for by the act of 1S67, and although the act of 1S72 declared that the amount which the company should pay should be ascertained in the manner and form as provided by the act of 1867, this simply referred to the inquisition as a convenient method of ascertaining the damage, and did not mean that the inauguration of the proceeding- was to rest only in the pleasure of the company.</p> <p>2. The statute of limitations does not bar the remedy where the liability of the defendants is created not merely by the act of the parties, but by the positive provisions of a statute, nor will it be held to embrace any proceeding at law not therein enumerated. Hence as the Maryland act of 1715, chap. 23, sec. 2, which is the statute of limitations in this District, in none of its provisions, makes allusion to a proceeding by inquisition, such a proceeding cannot be regarded as an action within the meaning- of the statute.</p> <p>3. In an action at law to recover damages to the plaintiffs property by reason of the laying of a railroad track, the only recovery which can be had would be in respect of temporary or transitory damages accrued up to the time of the inception of the suit, whereas, a statutory inquisition, which is not a suit in the sense of the law, is instituted to ascertain for all time the amount o.f permanent damages sustained. But a proper subject for consideration by the jury on the inquisition would be the recovery which might be had in a pending- action at law, by way of reducing the amount of their award.</p> <p>4. At such an inquisition if the marshal submits the names of the jurors, to the respective attorneys, that they may strike from the list until the number is reduced to twelve, and the attorney for the defendant refuses to do so, the marshal may perform that duty in his stead, as otherwise it would be possible in any ease for á party defendant to prevent the rendition of a verdict by refusing to strike from the panel.</p> <p>o. There is no force in an objection that in four separate inquisitions, the same twenty jurors were presented as a panel in each case.</p> <p>6. if or will the court consider the objections whether a sufficient number of witnesses were sworn and examined as to the amount of the alleged damages.</p> <p>7. A party is not entitled to recover damages for the depreciation of his property in consequence of the laying of a railroad track, if the property was not owned by him at the time the track was laid. The owner o£ the land at the time of the injury can alone take advantage of a claim for damages, and if he does not claim, his subsequent vendee cannot. »</p>

<p>The Case is stated in the opinion.</p> <p>cited 14 ITow., 528.</p> <p>•cited Vaughan vs. Northrup, 15 Pet., 1; Stevens vs. G-lading, 17 How., 451; Cooper vs. Gunn; 4 B. Monroe, 596; Swain us. Guild, 1 Gall.,497; Ashcroft vs. Walworth, 1 Holmes, 152; Gozler vs. Wilder, 10 How., 477; Miller vs. Taylor, 4 Burrows, 2803. As to the case of Stevens vs. Cady, 14 How., 528, cited by plaintiffs to sustain their bill, the ■question before the court was not whether a court of equity could decree a seizure and sale of a patent right to pay a judgment at law. No such question being before the court, no such question was decided. The question was whether the seizure and sale of the plates for a map, carried with it the right to print and publish that map. The court decided this in the negative.</p>

On the 26th of February, 1878, one Hoff made his note for $500, payable to the order of Elias J. Hill in one year, with interest semi-annually. To secure the note Hoff and his wife executed, on the same day, to complainant, Fox, as trustee, a deed of trust covering a stock of merchandise and goods in a store on Pennsylvania avenue, Washington, D. 0.

A piece of property, consisting of a lot of ground in Washington city, was subject to a deed of trust, in which the defendant and another were the trustees. The trust had been given to secure the performance of the condition of a bond executed by William Dolsen, the owner of the lot, in favor of the Capitol Hill Building Association No: 2.

<p>1. The rules of the common law respecting the estate in the lands of inheritance- of the wife to which the husband becomes entitled, were in force in the District of Columbia prior to the act of April 10, I860. (K. S. D. C., 727.)</p> <p>2.' Where the marriage took place in 1856, and in 1864, the wife, by the death of her father, became entitled to an estate of inheritance, there having been lawful issue born alive and capable of inheriting the estate, the husband has an estate in the property as tenant by the curtesy initiate, and it may be seized and sold under a common law execution for the payment of his debts.</p> <p>3. The act of April 10, 1869, has uot a retroactive effect and does not where the marriage was contracted before the passage of the act, take away or interfere wi h the pre-existing vested rights of the husband in the real estate of his wife.</p> <p>4. The act of Congress of April 27, 1878, providing for the .recording of deeds, mortgages, &c., repealed the antecedent laws limiting the time for the recording of certain deeds, so that a deed executed on the 9th of December, 1878, but not recorded until the 13th of May, 1879, can only be valid against creditors without notice from the latter date.</p> <p>5. Tenancy by the curtesy initiate is an estate thrown upon the tenant by operation of law, and he cannot, by refusing to take it, prevent the title from vesting in him and cause it to remain in the wife, nor can he, by disclaimer, transfer it to others ; this would be to make a disclaimer a deed, which it is not, the object of a deed being to transfer property, and of a disclaimer to prevent the transfer ; a grantee before consent can disclaim, and so may a devisee who takes by grant, but an heir and a tenant by the curtesy take by operation of law, the one takes immediately upon the death of the ancestor, and the other on the birth of living issue and neither, by disclaiming the estate, can prevent it from vesting.</p> <p>6. It is not permissible to show a consideration different in hind from that mentioned in the deed; but if the true consideration was different in amount it may be shown. Thus where the deed purports to be upon a money consideration it cannot be shown that money did not constitute the consideration, or, if voluntary, or on a consideration of marriage or the like, it cannot be shown that it was a moneyed one.</p> <p>7. A wife’s equity to a reasonable provision out of her estate against her husband and his creditors attaches only to such of her property as the husband cannot acquire without the assistance of a court of equity. If the husband or his assignee has already reduced the property into possession, the court will not interfere. There is no recognized principle by which a court of chancery can allow the wife a provision out of an estate by the curtesy initiate already vested in the husband and which his creditors are seeking to have applied to the payment of his debts.</p> <p>8. Where an estate by the curtesy initiate vested in the husband before the passage of the act of April 10, 1869, such estate is liable for the husbands debts, whether the credit was given before or after the passage of the act.</p> <p>D. A judgment merges the cause of action, so that where a judgment has been obtained against one of three makers of a note and the creditors are seeking to have the jiropcrty of the debtor applied to the satisfaction of the judgment, no inquiry can be made in that proceeding into the consideration or original surroundings of the note. Nor is it any defense that the other parties to the note have not been properly proceeded against by the complainant, for if a creditor is to be prevented from collecting his debt until each of the other debtors has been equally pressed, the debt will never be made at all.</p>

Appeal from a decree of the Special Term dismissing plaintiff’s bill.

These cases, though separate suits in equity, were consolidated by direction of the court and ordered to be heard in General Term in the first instance. The controversy grew out of a dispute between certain of the- parties as to their respective shares in a fund in the hands of the Secretary of State.

<p>1. Under Section 1033 it. S. U. S., providing- for the delivery to the defendant oí a copy of the indictment and a list of the jnrors and witnesses; two entire days before the trial begins, the trial is to be considered as beginning when the jury is made up and sworn; and not when the prisoner is arraigned; audit would seem that Sunday maybe included as one of the two days.</p> <p>2. The pendency of a prior indictment to which a plea of not guilty has been entered and upon which plea issue has been joined, is no bar to-an arraignment and trial upon a second indictment in the same court for the same crime.</p> <p>3. A delivery to the defendant, after the trial begins, of a list containing the name of a witness who will be called in behalf of the prosecution, is not sufficient, under Section 1033 K. S. U. S., to entitle the prosecution to use such witness on the trial, even though the court should adjourn the trial for three days in order that the defendant may not be surprised.</p> <p>4. But when such evidence has been admitted the defendant, if he complains of it, must set out in the record what the evidence was; for, if it was immaterial or unfavorable to the prosecution, the ruling- of the court below in permitting the witness to testify will be no ground for granting a new trial; and a mere statement in the record that the evidence, without setting it out, was “in behalf of the prosecution,” is not sufficient to inform the court of the nature of the evidence.</p> <p>5. There is no particular limit as to the time anterior to the homicide when evidence of threats made by the defendant against the deceased will be excluded. The judgment of the court on such a question is to be guided by the circumstances of the case.</p> <p>6. Where the credibility of a witness is impeached by the opposite party, the witness’ prior declarations may be given in evidence to show the consistency of his statements.</p> <p>7. An exception, based upon the court’s permitting certain questions to be asked the defendant and requiring their answer will be overruled when no harm appears to have been done the defendant by the answer.</p> <p>8. Where an offer of proof is made and rejected, the party complaining must set out on the record the facts which he proposed to prove in order that the court may see whether he has been prejudiced by the rejection of his offer.</p> <p>9. Where, on cross-examination, a witness is asked a question not collateral but material to the issue, the answer is not conclusive upon the party asking- it, and he may offer evidence to contradict it.</p> <p>10. It is no ground for a new trial that the justice trying the cause erroneously ruled certain persons competent as jurors if it appears that they did not sit on the jury, and that the defense in challenging them did not exhaust their peremptory challenges, but had others to spare when the jury was completed.</p> <p>11. The different grades of homicide distinguished and briefly defined.</p> <p>12. Malice is evidenced by previous threats or grudges, lying in wait or by poison. It is implied when the killing is done, in an attempt to rob or commit some other felony.</p> <p>13. The felonious purpose to kill need only exist for a moment before striking the blow.</p> <p>14. On an indictment for murder against three, all may be found guilty, although only one or two dealt the blow, if the others were present, aiding and abetting — in sympathy with the deed — -watching, or otherwise aiding "while near enough to give assistance.</p> <p>15. The word accomplice signifies in law a “guilty associate in crime.”</p> <p>16. Whether a witness is an accomplice in the crime charged in the indictment, or only an innocent witness of the transaction, is a question tobe decided by the jury from the evidence in the case.</p> <p>17. If a party was present at a murder, but took no part in it, nor endeavored to prevent it, nor apprehended the murderers, but otherwise was not concerned in its commission, and was not aiding and abetting at the murder, nor ready to afford assistance if necessary, such presence will not of itself render him either principal or accessory to the murder, nor an accomplice therein.</p> <p>18. Such a person if believed by the jury to have been merely an innocent witness of the transaction, stands before them like any other witness who chances to have seen a crime committed.</p> <p>19. The degree of credit to be given an accomplice is a matter exclusively within the province of the jury; they may, if they see fit, act upon his evidence, even in a capital case, without any confirmation of his statements; but the court will advise that they should not convict upon his testimony alone and without corroboration.</p> <p>20. Such corroboration need not extend to the whole testimony of witness (since if this were so it. would not be necessary to call him at all,) but must relate to some portion of his testimony which is material to the issue of the prisoner’s guilt. But proof that he told the truth in relation to irrelevant and immaterial matters, which were generally known, would not in itself be sufficient corroboration, nor that he told the truth in stating that the deceased was knocked down and killed (that fact being generally known). The corroboration should be of such and so many parts of the narrative of the aecomplice as may reasonably satisfy the jury that he is telling the truth without restricting the confirmation to any particular points, the effect of such confirmation being for the consideration of the jury.</p> <p>21. The justice trying the case below in charging the jury, read to them sec. 13 and note 2 of 3 Greenleaf’s Evidence, 13th ed., on the subject of reasonable doubt and presumption of innocence. The court in general term, on exceptions, finds no error in this.</p> <p>22. The prisoner is entitled to the presumption of having sustained a good character up to the time of the alleged murder, and this presumption remains in his favor unless the jury shall believe from the evidence that he in fact was not entitled to such reputation.</p> <p>23. Evidence of good character offered in behalf of a prisoner, if believed by the jury, should be duly weighed by them as a fact in his favor.</p> <p>24. The jury are the exclusive judges of the weight and effect of the evidence, and they may believe or disbelieve one or another of the witnesses at their discretion.</p> <p>25. Where there are several defendants and an accomplice testifies to their several acts, testimony corroborating him as to one or two of the defendants, is not necessarily corroborative as to the others.</p>

Statement oe the Case. Motion for a new trial on exceptions. This was an action to recover damages for injuries alleged to have resulted from the misbehavior of the defendant’s servants in ejecting the plaintiff from a street car.

<p>1. A bill which prays the appointment of a receiver on the ground that the defendant had so mixed complainants’ goods with his own, that it would be extremely difficult to separate them, should charge that the alleged confusion was fraudulent or wrongful in order to justify the interposition of the court,</p> <p>2. The bill did not call explicitly for answers upon oath, it prayed that the defendants might answer, etc. Reid, not equivalent to an agreement to dispense with answers under oath.</p> <p>3. Where an answer is responsive to the charges of the bill and swears away its equity, the denials of the answer must prevail, and the bill will be dismissed, unless the defendants’ statements are contradicted by the testimony of two witnesses, or of one witness with pregnant corroborating circumstances.</p> <p>4. Under a prayer for general relief the complainant can only claim relief of the same general nature as that prayed in the bill. So, too, the claims under the general relief clause must be consistent with the particular relief claimed, nor can different parts of the bill claim relief upon principles diametrically opposite. Therefore where the complainant claims upon the distinct ground that he is not a creditor of the defendant and is denied relief, he cannot, under the prayer for general relief, claim upon the hypothesis that he is a creditor.</p> <p>5. If the court has no jurisdiction when the bill is filed (by reason of the complainants not being judgment creditors) the recovery of a judgment afterwards cannot be set up by a supplemental bill so as to confer the jurisdiction; the supplemental bill falls with the original.</p> <p>6. A deed of assignment, after making preference of two creditors and providing for the expenses of the assignment, directed that out of the residue of the proceeds, the assignees should pay pro rata the claims of such of his other creditors as should agree to execute full releases to him of their claims, and that 'the pro rata share which would be payable to any creditor who might refuse to execute such release, should be paid over to the grantor. Upon a bill filed against the assignor and assignees, praying, among other things, that the defendants be enjoined from carrying the assignment into effect, the court passed an order as follows: “The assignor is enjoined as prayed in the bill, and the other defendants are enjoined as assignees, as prayed for, except as hereinafter provided.’’’’ The order then proceeded to consitute the assignees named in the deed, receivers of the court, and directed them to take possession of all the effects of the assignor referred to in the assignment, sell them and bring the proceeds into the court, the concluding sentence of the order being, “This order is without prejudice to any of the rights, interests, or equities of the parties or of the said creditors of, in and to the property aforesaid.” After the sale of the goods by the receivers and the ratification thereof by the court, S. the assignor, made a second assignment of the same property to the same assignees (now the receivers) substantially the same in terms as the first, except that it recognized the invalidity of the clause requiring releases and directed the distribution of the property equally among the creditors after the payment of the two preferred debts. Held, that the clause requiring releases rendered the first assignment void, and that the second assignment having been made to cure this defect and with no purpose to interfere injuriously with the title of the receivers blit rather to ratify and confirm it, so far from being in contempt of the existing injunction, was rather in aid of the order of the court, since the informality of the original assignment might be supposed to affect the title of the assignees and impair the rights of purchasers.</p> <p>7. The dismissal of a bill filed to set aside an assignment and, after a preliminary injunction obtained, restraining the assignor and assignees from carrying the assignment into effect, will deprive any party of the right to insist that the execution of a secoud assignment of the same property during the pendency of the suit was in contempt of the injunction.</p> <p>8. The mere fact of a lis pendens does not invalidate an assignment; a debtor pending a suit may assign to trustees ail his effects for the benefit of all his creditors and deliver possession and it will be valid.</p> <p>9. Where an assignment is defective a secoud assignment may be made to amend its errors, but it is only to be taken as a curative of the defects of the first and not as establishing any additional or further priorities. Hence, provisions increasing the amounts of preferred claims over the sums named in the first deed by increasing the rate of interest cannot be operative against the statement of the same preferred claims in the first deed. In the same manner a particular statement in the second deed as to the percentage to be paid to the assignees for commissions cannot be. operative against a general x>rovision on the subject in the first deed, the functions of the second deed being only to render valid and effective the provision of the first.</p> <p>10. A debtor in insolvent circumstances, bjr assignment of his estate in trust made in good faith, when no law or lien prohibits, may lawfully prefer one creditor or set of creditors to another.</p> <p>11. The mere silence of a purchaser as to ins financial condition at the time of sales made to him, even if he had then known himself to have been insolvent, is not sufficient to warrant a rescission of the sales for fraud ; an honest though abortive purpose to continue business and pay for goods bought, is consistent with the vendee’s knowledge of his insolvency, and the purchase is not fraudulent when made with such intent, though founded in delusion and unreasonable expectations ; there must have been an intent not to pay ai the time of purchase.</p>

<p>F., a stockholder in a building association, borrowed a sum of money from the association, his wife, and the co-heirs with her, of a piece of land, joining in a deed of trust pledging the land to secure the loan. Afterwards the association undertook to foreclose the trust for an alleged default. Upon a bill filed by the grantors to restrain the sale and to compel the association to allow .certain credits in their settlements of F.’s account, it was;</p> <p>Held, that whatever might be the proper terms of settlement between F. and the association, the grantors were not bound thereby if those terms were in opposition to the provisions of the deed of trust; that they stood only in the position of sureties who have agreed to answer for the default of adebtor; that the measure of their liability was to be determined solely by the terms of the instrument creating it, and, if by these terms the proceeds of the sale upon default made are to be applied (after the payment of expenses and trustees’ commissions) to the satisfaction of so much of the debt secured as remains due after deducting therefrom the value of F.’s stock, equity will, before the sale and for the purpose of ascertaining the right of the association to foreclose the trust, require this credit to be made' upon F.'s indebtedness, although as betwen F. and the association such a credit might not be pi'oper.</p>

<p>1. Reference of a cause, by the Court, to one as “special referee” with directions to take and return the testimony adduced, and to report all the material facts “with his conclusions of law and his recommendations.” The report was not under seal, was unaccompanied by a final finding and professed to be nothing more than a “recommendation.”</p> <p>Held, not an award under the Maryland act of 1785 and Rule 53 of this court, and a judgment entered thereon reversed, and the cause remanded to stand before the court as it did before the reference,</p> <p>fi. An award ought to settle finally and conclusively the whole matter referred. It is contrary to the principles of a general reference that the court should take the award as far as it goes and supply all omissions by its decree. The award ought to be in it-elf a complete adjustment of the controversy submitted to the arbitrators.</p> <p>3. Where a court, under the authority of law, assents to a reference of a case to an arbitrator, it abdicates, pro hac vice, its own judicial functions, to the arbitrator ; and his award, if conformable to the law and the rules regulating the subject, is taken as of equal force with a decision of a competent tribunal, needing only the formal ratification of the court to stand as a judgment of the tribunal itself. But this special power thus confided to the arbitrator, must be exercised in conformity to the law and the rules of court, and on these conditions alone will it be considered as an equivalent to the finding of the court and jury.</p> <p>4. 'A party cannot be deprived of the right to have his ease passed upon by a jury unless waived by a regular reference to arbitrators, and its equivalent obtained by a proper final award.</p>

The Case is sufficiently stated in the opinion. cited the following: If the patentee borrowed the idea of the different parts which go to constitute his invention, and for the first time brought them together into one whole, and that whole is materially different frdm any whole that existed before, then he is the original and first inventor, and is entitled to a patent therefor. Many vs. Sizer, 1 Fisher, 17.

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

<p>Upon a sale of property by a trustee having power to fix, by previous advertisement, the terms and conditions of the sale, the rights of the parties are acquired and controlled by these terms which cannot be varied unless an independent contract has been entered into which would prevent a party to it from insisting upon them. Thus, where a. piece of property had been sold for default in payment of a joint promissory note, secured thereon, and the holder of the note had entered into a private arrangement with one of the joint makers, different from the advertised terms under which the property was apparently sold, in consequence of which arrangement the latter became the purchaser of the property, the other maker of the note, having been no party to the arrangement, either by consent or subsequent ratification, cannot thereby be deprived of any benefit or interest which would otherwise accrue under the advertised terms of sale, although the agreement will be binding between the parties to it.</p>

The Case is stated in the opinion. When the receipt embraces something more than an acknowledgment of a certain sum being paid and when the amount paid is not a matter of dispute, the papers must be construed as other contracts, and the terms thereof cannot be varied by parol proof. Curtis vs. Wakefield, 15 Pick., 437; Wakefield vs. Stedman, lb., 562; Barsby vs. Hamilton, lb., 40.

<p>1. A bill in the nature of a bill of interpleader is not within the rule applicable to bills of interpleader strictly so called, viz., that they can only be maintained where the plaintiff claims no interest in the subject matter, for in many cases .the former will lie by a party in interest to ascertain and establish his own rights where there are other complicating rights between third parties.</p> <p>■2. Courts of chancery have supervision and control of all unincorporated societies or associations. With respect to them they have the power of prevention of acts contrary to law and prejudicial to the interests of the community, or to the rights of individuals, and can afford specific relief where a recovery in damages would be an inadequate remedy for the wrong.</p> <p>■3. tío, where by reason of the numbers of the parties and the character of their rights, damages are unsuitable as a means of redress, equity will apply the required remedy.</p> <p>4. In a controversy over a trust claimed to have been created for religious purposes, chancery, which exercised jurisdiction in such cases on the ground of trust, must give effect to its provisions, if they be legal, and to that end must ascertain and determine its scope and object. In that investigation the court is authorized to resort to the early history of the church as contained in standard and authentic works on the subject prior in date to the existence of the particular controversy.</p> <p>■5. Before a title to land by possession alone can be successfully maintained, the possession must be shown to cover the full period of twenty-one years, and that during all this time it has been actual, adverse, visible, notorious, exclusive and unbroken with claim of title against all the world.</p> <p>-6. The statute of limitations has no application to express subsisting trusts. In such cases the trustee, while he holds possession, holds in behalf of the real cestui qui trusts, whoever they may be. He cannot, therefore, invoke adverse possession in favor of persons claiming as beneficiaries if, under the trust originally impressed upon the property, they are not in fact the true beneficiaries.</p> <p>7. Where the possession of a party is under and in privity with the estate of the person under whom such party claims, there can be no adverse possession against that person.</p> <p>¡8. Where a trust has been created for the benefit of a particular class of persons, as for example, “for the Calvinist Society,” and there is nothing in the deed expressly declaring the particular nationality or location of the society to whom the advantages of the trust are to enure, the court will be governed by the circumstances surrounding the trust at its inception, and if there is sufficiently evinced an intention by the grantor to confine it to particular persons of a particular locality, the court will give effect to that intention and restrict the trust to those persons and to that locality most probably intended to be benefitted.</p> <p>■9. In 1770 a trust for the benefit of an unincorporated religious body was created in lands situated in what now constitutes the District of Columbia. Subsequently, under the act of Maryland of 1791, eh. 45,. making provision for the allotment and assignment of certain lots of ground to certain parties, ‘‘ to hold the same in their former estate,”' two lots were eonvej’ed to the trustee in lieu of the original trust property held by him.</p> <p>Held, That the conveyance made under the authority of this act was to be taken as a full legislative assent to the validity of the title of the trustee.</p> <p>10. The statutes of mortmain (in force in Maryland, 1770.) applied only to corporations. Trusts made by feoffment grant or devise to unincorporated bodies for charitable uses and purposes, not deemed superstitious, were not invalid, and a trust for a religious purpose has long been declared a charitable purpose in this respect.</p> <p>11. After a lapse of nearly a hundred years, during which time the validity of a trust had never been questioned, and all parties ever-claiming the property had claimed under the trustee’s title, the court will, under proper circumstances of possession, presume the existence of grants and the enactment of statutes necessary to confirm the trustee’s title.</p>

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

<p>The Case is stated in the opinion.</p> <p>cited the following ¡authorities :</p> <p>4 Wash. C. C., 620; 7 Cowen, 48; 18 Wend., 72; 3 Johns., -528; 1 Johns. Cas., 23; 23 Barb., 481; Be Golyar on Prin. Sur., 360, 407; 2 Ves. Jr., 540; 3 Wash. C. C., 70; 23 Ill., 62; 5 Gill & J., 344; 6 Pet., 250; 2 Swanst., 193; 6 Ala., 718; 1 Stew. (Ala.), 262; 3 Bibb, 467; 3 Denio, 378;. 1 •Call. (Va.), 15; 1 Munf., 269; 2 Rand., 333; 5 Ohio, 208; 6 lb., 17; 7 Johns., 331; 1 Paine, 306.</p>

This was an application for mandamus against the Commissioner of Patents, which was ordered to be heard in the General Term in the first .instance.

<p>¡Defendant, having been sued at law upon a promissory note, filed a bill in equity to enjoin the suit, on the ground that he had a complete defense in equity, by reason of certain credits that would amount to a payment of the note. Subsequently, and before the hearing in equity, he filed a plea of “payment ” in the case at law. A final decree was afterwards passed dismissing the bill, and then, on the trial of the suit at law, the plaintiff, to meet the defendants’ plea of payment, offered in evidence the decree, and asked the court to instruct the jury that this decree closed all defense as to any alleged payment on account of the note, which the court refused to do. Held, Error, for the reason that equity, having taken j urisdiction of the cause, had necessarily gone into the condition of accounts between the parties to ascertain whether the note had been paid, and, if paid the suit at law would have been enjoined. The dismissal of the bill was, therefore, an adjudication by the court that the note had not been paid.</p>

The Case is stated in the opinion. The undertaking was voluntary and is valid whether required by statute or not. Sooy vs. State, 9 Vroom, 324 United States vs. Bradley, 10 Bet., 343; United States vs.. Hodson, 10 Wall., 395; United States vs. Linn, 15 Pet., 290. A certiorari is not a writ of right, but is discretionary with the court, 3 Abbott’s United States Dig., p. 247, sec. 19 and cases cited. 1 Bac. Abr., tit. certiorari, p. 558; 43 Pa. St. R., 372.

This was an action of replevin brought by a defendant in execution to recover certain of her goods and chattels levied upon by a constable under a writ of execution issued by a justice of the peace of this District on a judgment rendered in a case of attachment for rent.

<p>1. Where a municipality is mulcted in damages for injuries received by a party in falling into an excavation made by a railroad company in one of its streets, the latter is liable over for the amount paid.</p> <p>2. Where a party liable over has been duly vouched to appear and defend the suit, but fails to do so, lie is bound by the facts which must have been, found by the jury to justify their verdict, and he will not be permitted to show the contrary in an action over against him.</p> <p>3. A municipality charged with the duty and power to grade and alter the streets of its city is not answerable, in the performance of such work, for injury resulting to a citizen, unless negligence be shown.</p> <p>A. But it is otherwise with a private corporation, who is liable like any other private person making a specially authorized but extraordinary use of a public street.</p> <p>3. Such uses of public streets by private persons are lawful only because specially authorized, and while so conducted as to be harmless to others, but they become trespasses whenever injury occurs, whether resulting from negligence or not</p> <p>6. Evidence, therefore, by such a defendant to show all possible care and diligence if unaccompanied by any assertion of responsibility on the part of another, or of want of care on the part of the person injured, should be excluded as immaterial to the issue.</p> <p>7. The fact that a municipality grants to a private person the right to engage in extraordinary work upon its streets does not deprive the municipality of the right to recover over against 'such person the amount which it (the municipality) has been compelled to pay to a citizen injured by reason of such work,</p> <p>8. Nor will the fact that the action was brought by the injured party against the municipality instead of directly against the person engaged in such work enable the latter, in an action over against it, to set up absence of negligence as a defence on the ground that the municipality granted permission to do the work. The effect of such a grant being only to prevent the grantee from being a trespasser in the bare act of breaking up the street; but it gives no exemption from liability for injury resulting to others in the execution of the work.</p> <p>■9. As stated in the exception, the defendant’s offer was “ to prove that the defendant company was under no obligation to erect barricades.”</p> <p>Held, That, as so stated, this was simply an offer to establish by evidence before the jury a proposition of law as to the defendant’s liability and was properly rejected.</p> <p>10. It seems that when a party has been compelled by the default of another (who was primarily liable) to pay damages for injuries received, he may recover in an action over, the entire amouutpaid, with interest and costs of both suits.</p>

Motion for new trial on exceptions. The declaration contained two counts.

<p>1. Sections 5457 and 5458 K. S. U. S. differ from each other, both in the description of the crimes therein denounced and as to their punishment.</p> <p>2. Under Section 5457 the offence of having in possession counterfeit gold or silver coins is not complete unless the accused had them in his possession “knowing the same to he false, forged, or counterfeited.” But there is no necessity for the averment or proof of such scienter under Section 5456, which provides for punishing the having in possession counterfeit minor coinage.</p> <p>3. The accused for the former offence may be imprisoned to the extent of ten years, while the limit of imprisonment for the latter is three years. Therefore, where the prisoner is indicted and found guilty under the latter section (5458), a sentence of imprisonment for eight years is erroneous.</p> <p>4. Semble, That where the indictment is good hut the term of imprisonment to which the prisoner has been sentenced exceeds the period fixed by the statute, the case may be remanded to the court below for the imposition of a shorter term.</p> <p>5. Section 3515 B. S. U. S. establishes certain coins to which it affixes a certain designation, and by which alone they are thereafter to be known. They are .“minor coins;” known by no other appellation; and none other than these particular coins are embraced in that name, and as none of these minor coins contain silver, there is no such thing known to the law as “ minor silver coinage.”</p> <p>6. The old five cent pieces are not “minor coins” within the meaning ■ of the law. The punishment for forging them must be sought under the section punishing the counterfeiting of silver coins, and not under the section relating to minor coinage. An indictment therefore which charges the prisoner with counterfeiting certain coins “in the resemblance and similitude of the minor silver coinage which has been coined at the mints of the United States called a half-dime,” is contradictory and sets forth an offence not known to the law.</p> <p>7. Although there has been no demurrer interposed or motion to quash the indictment, this court is nevertheless at liberty to pass upon defects in the indictment, upon a motion for a new trial on exceptions to the rulings of the court below.</p> <p>8. The reversing of the judgment of the court below, because of the insufficiency of the indictment, does not exonerate the prisoner from being tried upon a good indictment, the first trial being simply what is known as a mistrial.</p> <p>9. Where the prisoner is charged with having in his possession certain counterfeit money with intent to defraud, it is not necessary to give the name of the person tobe defrauded, the averment to defraud “ a certain person to the jurors unknown,” or “whomsoever he might he able to defraud,” is a sufficient description within the terms of the statute. The statute does not require that there shall have been a consummation of the fraud by the actual passing of the money. The offence consists of having it in possession with intent to defraud. The possession alone is not criminal if unaccompanied with the intent.</p> <p>10. Testimony of an accomplice — the ruling on this subject in The United States v. Severs on, ante, 152, considered*</p>

The Case is stated in the opinion. There was no error in the charge of the coart, while the* general engagements of a feme covert are void; yet she may; under the statute, contract as if she was sole in a matter having relation to her separate estate; that is, by- agreement; annexed to and connected with it, for its benefit, or directly upon its faith and credit. Stephen vs. -Beall, -22 Wall., 338; Harmon vs. Garland, Wash. L. B., Vol.

<p>1. Statutesof limitations are1 to Le construed strictly and will not be extended by implication.</p> <p>2. To arrive at the correct meaning of a statute the court will examine its language throughout and will import words from all portions of it to qualify the meaning of the whole.</p> <p>3. As respects public rights municipal corporations are not within ordinary limitation statutes.</p> <p>4. Under the second section of the Revised Statutes relating to the District of Columbia, the liability of the District to be sued and impleaded to the full extent of other municipalities is plainly implied in the general language which creates it “a body corporate for municipal purposes,” and, in the absence of any provision to the contrary, whatever liabilities may properly attach to municipalities in general, are equally devolved upon the District government: Hence, whenever the Maryland act of 1715, ch. 23, which is the statute of limitations in force in this District, may be interposed to a claim of an ordinary municipality, it may be availed of against the District of Columbia.</p> <p>5. By the charter of certain street railway companies of Washington and Georgetown, the companies were required to keep their tracks and the adjacent part of the streets, at all times, well paved and in good order, without expense to the United States, and to the District, the District being also bound by statute to take all proper care of its streets and avenues. On the failure of the companies to perform this duty the work was done and paid for by the District, and to obtain reimbursement for the outlay, suit was afterwards brought by it against tne companies.</p> <p>Held, 1. That after the acceptance of their charters, the companies could not be heard to object that the provision was illegal or incapable of enforcement against them. 2. That the right of action grew out of and was founded upon the obligation in the charters as well of the District as of the companies, and that the suit was an action founded upon those statutes. 3. That the statutory obligation of the companies had been broken if the paving had caused any expense to the District, and this fact would furnish the consideration and foundation of the claim for reimbursement. 4. That the action was not within any of the enumerated actions mentioned in the 1st section of the ■ Maryland act of 1715, chap. 23, to which the plea of limitation would be available:</p> <p>6. Charges or assessments made against property owners for street improvements, by a municipality having power so to do, are in the nature of taxes and in the absence of some additional provision declaring limitation a bar, such a plea is no defense.</p> <p>7. When the charters of the companies bind them to pave and keep in repair the streets upon which their tracks are laid and they neglect so to do, and the District, thereupon does the work and brings suit against them for reimbursement, the fact that no assessment had been made against the companies by the District for such work is immaterial in its effect upon the right to set up limitations as a defense ; the companies occupy the same position with respect to the statute of limitations that they would have held if the amount chargeable against them had been made the subject of a regular assessment which they had refused to pay and for which the action had been brought.</p> <p>8. One section of the charters of the companies required them to keep their tracks, &c., at all times, well paved and in good order; and by another section it was provided, “ that nothing in this act shall prevent the government, at any time, from filtering the grades or otherwise improving all avenues or streets occupied by said roads, or the respective cities from so altering or improving such streets or avenues, and the sewerage thereof, as may be under their respective authority and control; and in such event it shall he the duly of such company to change their said railroad so as to conform to such grade or pavement. The companies’ charters also provided, “ that the use and maintenance of said roads shall be subject to the municipal regulations of the cities of Washington and Georgetown.”</p> <p>Held. That the companies were bound by the charters not only to pave once the designated portions of the streets, but to repair the paying and to change the grade and lay new pavements within the prescribed limits whenever the municipality, in its discretion, should see proper to make changes in the streets, rendering such work proper to be done on the part of the companies.</p> <p>9. Where, on the failure of the companies to pave, &e., as required by their charters, the work is done by the District, assumpsit for the recovery of the sum expended is a more appropriate form of action than debt; and the declaration should charge that the sums paid were what the work was reasonably worth, the recovery being limited to such reasonable expenses incurred by the city as shall be ascertained by a jury. Extravagant amounts recklessly expended in the work without reference to its true value should not be allowed.</p>

<p>1. An instrument which is void as a contract may he used as evidence of a collateral fact, as, for example, of an acknowledgment of a subsisting indebtedness.</p> <p>2. An acknowledgment of indebtedness, in order to raise an implied promise which will take a ease out of the statute of limitations, must be made in such form or under such circumstances as to import a willingness to pay; but such -willingness need not be expressed in terms.</p> <p>3. An acknowledgment of indebtedness is not defective on the ground of uncertainty as to the amount due, because it is shown to have admitted too large an indebtedness, and to be subject to reduction on the part of the debtor.</p> <p>4. A case stated in which the court finds a sufficient acknowledgment g fof indebtedness to prevent the bar of the statute. '</p>

<p>1. Plaintiffs having rested the case, the court instructed the jury that, upon the whole evidence, their verdict should he for the defendant. To which instruction the plaintiff reserved an exception, but the bills of exception, which were made part of each other, did not state in terms that they contained the “whole” of the evidence admitted at the trial. There was a statement, however, that “after the evidence had been given, as set forth in the foregoing bills,” the plaintiffs rested their cáse.</p> <p>Held, That the last statement may be accepted as equivalent to a statement that the bills contained the “whole” of the evidence. Held, also, That to presume that other evidence was given by the plaintiff would be to presume against the decision of the court; in other words, that error had been committed, which is not admissible,</p> <p>2. The same bills of exception described the evidence only as “ tending to show.”</p> <p>Held, That the instruction to the jury to find for the defendant, answered the purpose of a demurrer to the evidence, and must be tested by the same rule, viz., that a demurrer to evidence admits not only the facts stated therein, but also every conclusion which a jury might fairly and reasonably infer therefrom.</p> <p>-S. If A promises B to H6ld and not to pay over to (3 a fund belonging to 0, until certain fees due to B from 0 shall be paid out of it, but does pay over the same to C before those fees are paid; and B, knowing that fact, makes a settlement with C, giving a receipt releasing C from further claim :</p> <p>Meld, That if A’s promise was binding, he was liable only for such injury as B might suffer by reason of his consequent inability to obtain his fees from C, and that B’s settlement and release .of C released his right of action against A for injuij over the fund. i affered by reason of A’s turning</p> <p>•4j If;/ A is under a legal obligation a certain act for B, a tion of A’s performance iormance of an act which i, is not a valuable consid-N promise by C, a third party, to ' of that act,-is not binding, beca A was already bound, though n<? eration for C’s promise.</p> <p>•5. "When it is claimed that a promise is supported by a past consideration it must be shown, as a matter of fact, that the promise was made in respect of that consideration. *</p> <p>6. When it is claimed that defendant’s promise was made in consideration^ of past services rendered by the plaintiffs at defendant’s request, it must appear that those services were in fact rendered in consequence of the defendant’s request.</p> <p>7. Where a thing previously done by the plaintiffs, at the request of the defendant, is a consideration .from which the law 'implies a promise, a subsequent express promise, based upon the same consideration, different from, or in addition 'to, that which the law implies, is nudum pactum.</p> <p>S. Where A promises B to do something ior the benefit of C, B may re<lease A from that promise at any time before C mákes himself a privy to it by adopting B’s act of obtaining the promise.</p>

<p>Defendant received from K., without fraudulent purpose towards plaintiff or circumstances to put him on inquiry, certain goods as security for money loaned. Before suit brought (replevin) the defendant had returned the goods to K. without notice from plaintiff that the goods were his. Held, That the plaintiff could not recover.</p>

Statement oe the Case. The defendant was convicted of grand larceny. About March 9, 1881, one William H. Peden, a farmer residing in Stafford county, Virginia, came to the city of Washington, D. C., with a mare which he wished to sell. He was approached by the defendant, Bodgers, and urged to trade ; this he repeatedly refused to do, saying that he would only sell, and that for the sum of $105 cash.

<p>The Case is sufficiently stated in the opinion.</p> <p>The District was liable for defects either in the workmanship or capacity of the sewer complained of. Indianapolis vs. Hoffer, 30 Ind., 233 ; Mayor, etc., vs. Thompson, 29 Ark., 569; Dixon vs. Barker, 65 HI., 518.</p> <p>Liability for damages caused by a defective plan can only arise when the corporation has been negligent in the selection of the officers to whom it has entrusted the work of devising that plan. See cases cited in notes to sections 753, 799 and 801 of Dillon on Municipal Corporations; and Mills vs. Brooklyn, 32 N. Y., 489 ; Child vs. Boston, 4 Allen, 41; Wilson vs. New York, 1 Denio, 599; Carr vs. Northern Liberties, 35 Penn. St., 324, approved by Sharswood, J., in Grant vs. Brie, 69 Penn., 422 ; Beekman vs. Detroit, 34 Mich, 125 ; Yan Pelt vs. Davenport, 42 Iowa, 308.</p>

Statement oe the Case. Motion for new trial on exceptions. The declaration consisted, besides the money counts, of a special count on a promissory note dated April 26, 1875, by which defendant promised to pay to the order of the plaintiff $10,000, two years after date, with interest, payable quarterly, at ten per cent, until paid. The interest had been paid up to April 26, 1878, and $8,132.10 of the principal had been paid and credited February 19, 1879.

<p>1. The common law rule requiring the use of the word “heirs” in deeds of conveyance, in order to pass a fee, does not apply to deqds of trust; the latter are to he construed according to the intention, the trustee taking only such estate as is necessary for the execution of the trust. ■</p> <p>2. Where the trust is created solely for the benefit of the cestui que trust, he having the absolute control of the property, the power of disposition and the right of possession, the trustee cannot maintain the ejectment against him. t</p> <p>3. Where the trustee has no right of possession, save in behalf of the cestui que trust, and the latter conveys his entire interest to another pending an ejectment suit, brought in the name of the trustee in behalf of the cestui que trust, and includes in the conveyance his interest in the mesne profits claimed of the defendant in the pending suit, the trustee has no longer a right of action.</p> <p>4. The habendum clause of a trust deed was as follows : “ To have and to hold the said lots, &c., unto the said party of the second part (the trustees) his heirs and assigns forever, for his and their sole use, benefit and behoof forever, in trust, nevertheless, for the use and purpose following, and none others, that is to say: to hold the same for the use and benefit of the aforesaid (cestui que trust) and subject to his absolute control and disposal, and to sell and dispose of the same as the said {cestui que trust) may in writing direct and require.</p> <p>Held that the cestui que trust had the entire control and power of disposition over the property, including the right of possession, and having conveyed his entire interest pending an ejectment suit brought in his behalf in the name of the trustee, the defendant in the suit could set up the conveyance as a good defense against plaintiff, the trustee.</p>

Statement oe the Case. George Ailer died, in the year 1865, intestate, possessed of certain real estate in the city of Washington, and leaving his widow, now Mrs. Weser, and Eleauora Ailer, now Hayden, his only child and heir-at-law, surviving him. His widow assumed the administration of his estate and the guardianship of the child.

<p>.1. When an attorney at law obtains a judgment in the capacity of executor, and is at the same time attorney for other parties in a suit against the same defendant, and a few days later obtains a judgment for them also, the court, in applying the proceeds of an equity of redemption, to the satisfaction of these judgments, will recognise no priority, but will distribute pari passu.</p> <p>2. It is doubtful whether the rule heretofore frequently followed by this court of distributing the proceeds of an equity of redemption among judgment creditors in the order of their priority in obtaining their judgments, is the correct rule.</p> <p>3. As to what is the rule that should be followed in such cases, qucere.</p>

<p>1. The certificates of drawback issued by the District of Columbia, under the act of Congress of June 19, 1878, to holders of certificates of indebtedness for improvement assessments do not bear interest.</p> <p>2. Statutes which are enacted as compromises in regard to matters of taxation, and which subject the municipality to obligations which did not exist before, are to be construed so that these new obligations shall not be made larger than the strict and precise terms of the statute require.</p>

<p>A will contained the following clause: “I bequeath and give to my dearly beloved brother, Henry Walker, forever, lot No. 6 in square 403, together with the improvements thereon erected and appurtenances thereto belonging.” The testator did not own lot 6 in square 403; but the plaintiff, in an action of ejectment to recover lot 3 in square 406, offered to show by parol evidence, that this clause was intended as a devise of lot 3 in square 406. The evidence proposed to be given was : 1. That the testator intended to leave everything he owned to his brothers and sisters; 2. That he did not own lot 6 in square 403, but that he did own lot 3 in square 406, which was in the same general system of lots, all the four hundred series running down in the same straight line through that part of the city; 3. I bat the lot designated in the will had no improvements upon it, whereas lot 3 in square 406 was improved (the lot devised being described in the clause quoted as an improved lot). He also offered to prove, as going to show the proper reading of the clause as understood by those directly interested, that since the will was admitted to probate, the widow who had a life estate in one-third of all the property, had drawn but, one-third of the rents, issues and profits of lot 3 in square 406,_ and that the guardian of Henry Walker had drawn the other two-thirds, and that all the beneficiaries of the will had acquiesced in this. Held, inadmissible.</p>

<p>Plaintiff filed his bill to obtain the surrender of a certificate of stock. He alleged that the defendant obtained it from him with the understanding that it was to be used for the purpose of exercising, in some way, an improper influence with certain officials of the government to inure to the benefit of plaintiff and defendant.</p> <p>Held, That on plaintiff’s own statement equity would deny him relief.</p>

<p>1. Plaintiff sued defendant as guarantor, declaring on a paper purporting to be the guaranty of the defendant and described it as bearing date November 13, 1874. The principal contract bore date November 13, 1874, and was signed by the principal only: at the foot thereof, and on the same sheet of paper, was the contract of guaranty signed by defendant only; it bore no date, but referred in its terms to the principal contract; it was proven by parol evidence that both contracts were signed the same day.</p> <p>Held, That these contracts were separate instruments and that the guaranty being signed by a different party did not take its date from the principal contract; as it was not dated, it, therefore, did not conform to the paper described in the declaration and was not admissible in evidence to prove the conrt act of the defendant.</p> <p>2. A receiver appointed to take possession of property, but required by the order appointing him to give bond before proceeding to act, cannot, until such bond is given, legally dispossess a party in possession.</p> <p>3. If a party being rightfully in possession of real estate, sign a lease agreeing to pay rent to one whom he supposes to be a receiver with authority to take possession of the property, he is not estopped from afterwards showing the want of authority and title on the part of the lessor; such a case does not come within the rule that the tenant shall not deny the title of his landlord.</p>

<p>2. Where a particular estate is devised to one with remainder to the de- • visor’s lieirs-at-law, the remaindermen take the same estate which the law would have cast upon them if the devisor had died intestate as to the remainder. And in such case, for the purpose of ascertaining the heirs, the will is to he regarded as a nullity.</p> <p>2. A treaty between the United States and a foreign power, if valid, is as much a part of the law of the land as the common law or statutes. U. Under the treaty of 1850, between Switzerland and the United States, citizens of Switzerland may inherit of citizens of the United States in the same manner as any other citizens of this country.</p>

This was an action of assumpsit against a married woman living with her husband, for the purchase money of a carriage. The testimony showed that the defendant went to the store of the plaintiffs, who were carriage dealers, and stated that she wanted to purchase a carriage, saying at the same time that she was living in the country and wanted the carriage to ride backwards and forwards to look after her property in the city.

Statement oe the Case. On the 2d of July, 1881, the President of the United States, James A. Garfield, while standing in the waiting room of the Baltimore and Potomac Bailroad depot, in the city of Washington, I). C., was fatally shot by the prisoner, Charles J. Guiteau.