Volume 13 — District of Columbia Reports

<p>Statement oe the Case.</p> <p>Action of ejectment to recover alot of ground in the county of Washington.</p> <p>The declaration was filed April 12, 1879. On the 9th of April, 1880, the defendant filed a motion “for a rule on the plaintifls to give security for all costs and charges that the said defendants may be put to in case the said plaintifls shall be nonsuited or judgment be given against them, they being non-residents of said District.”</p> <p>It did not appear by the record that any notice of the .motion was served upon the plaintifls.</p> <p>April 17,1880, the court passed the following order :</p> <p>. “Upon argument and consideration of the defendant’s motion, filed 9th of April, 1880, that the plaintifls, being nonresidents of the District of Columbia, give security for costs, it is ordered accordingly ”</p> <p>December 21, 1880, the order for security not having been complied with, the defendant filed a motion “ to enter a judgment of nonsuit, because the plaintiffs have not complied with the rule to give security for costs, laid on them on the 17th day of April, 1880.”</p> <p>On the same day the case was called for trial, and the above motion being pressed, the court refused to grant the same but proceeded to trial, whereupon the cause being submitted to the jury upon the evidence a verdict was rendered for the plaintiffs. Defendant then moved for a new trial upon his exception to the ruling of the court in overruling the motion to enter a judgment of nonsuit because the plaintiffs had not complied with the rule to give security for costs.</p>

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

Complainant, a member of the defendant association, obtained from it several loans or advances of money on his shares of stock, giving a deed of trust to secure the payment by him of two dollars a month on each share until the close of the association, or, in the alternative, the return of the money advanced. Complainant paid regularly all that was required of him until about the 30th of March, 1880, when he ceased his payments.

<p>1. Whether, in an application for a mandamus to compel the issuance of letters-patent for an invention, the Secretary of the Interior, and not the Commissioner of Patents, should be made the party respondent, qucere.</p> <p>2. Congress, in creating the Patent Office, has by express legislation given that office the power to enact rules for its conduct; those rules, if within the powers of the Office and reasonable, are just as authoritative as the laws of Congress itself.</p> <p>3. There is nothing unreasonable in the requirements of Rule 39 of the Patent Office, and, where it has not been complied with, this court will not issue a mandamus to compel the issue of a patent, although the invention be new and useful.</p> <p>4. An inventor receiving a patent in the first instance in this country is entitled to seventeen years’ protection of his invention, but if he has previously obtained letters-patent in one or more foreign countries, then, while not deprived of his right to a patent here, the term to which the law in such case limits his protection is a period not extending beyond the date of the expiration of that one of the foreign patents first expiring.</p> <p>5. In the construction of statutes in pari materia, they are all to be kept alike in view, and construed in the light of each other, and their effect considered under such construction.</p>

STATEMENT oe the case. Complainants filed their bill in , equity reciting that the defendant McGee, being the owner of lot 4 in square 99, in the city of Washington, D, C., agreed in writing (Exhibit A) to sell the same to complainants for. $2,000, and that defendant had received complainant’s check for $100 on account of said sale.

STATEMENT OF THE CASE, The parties to this cause were declared by the Supreme Court of the Hnited States mortgagor and mortgagee respectively (96 U. S., 332); and that court in fixing the defendant’s liability as mortgagee in possession said : “ The defendant should be charged with a reasonable sum for the use and occupation of the premises from the time he took possession in 1865, and allowed for the taxes paid and other necessary expenses incurred by him.”- By the opinion…

STATEMENT 0E THE CASE. The bill in this case sets out, that October 15,1874, plaintiff' borrowed of Millard Metzger about $1,000, for which he gave his note secured by deed of trust upon parts of sub-lots 37, 38, 48 and 49, square 209, in the city of Washington, improved by seven frame tenements. Under this deed of trust O. O. Duncanson, surviving trustee, November 7, 1876, advertised the property for sale.

Motion for new trial on exceptions. This was an action of replevin instituted by the trustee in a chattel deed of trust to recover possession of furniture taken in attachment for arrears of rent.

<p>1. Evidence of intent to defraud existing creditors by a voluntary conveyance of property by one largely iudebted is prima fade evidence of fraud against subsequent creditors, but not conclusive ; it may be re- ■ butted by showing that the existing debts were secured by mortgage, ■or were provided for in the settlement itself, or that they have since been fully paid off. But when those debts are paid off by creating new debts, as by borrowing money, or by purchasing goods on credit and out of the proceeds, which ought to be applied to pay the purchase price, discharging the antecedent debt, or in any way which only relieves an indebtedness in one direction by increasing it in another, the case is to be treated as if the prior indebtedness had continued throughout.</p> <p>2. Where a voluntary conveyance is void as against creditors, those acquisitions of the donee, which are the mere fruit and outgrowth of the property conveyed, share the same fate.</p> <p>3. The burden of proof is upon the wife, when she claims that expenditures made in the purchase and improvement of property are from her separate estate.</p> <p>4. In the District of Columbia the labor of the wife and the earnings resulting therefrom are the legal property of the husband.</p> <p>5. Where, in the case of a voluntary conveyance, it is shown that the donor had continued all the time to pay the taxes and repairs and interest on encumbrances, and had raised money on the property, for his own use, by deed of trust, and had also applied the largest part of the proceeds of a sale of a part of it to his own use, these, or such facts, will be conclusive evidence to a court of equity that the conveyance was a mere cloak to protect the property from creditors; and where the donee is the wife the force of the evidence is a question of degree only; her allowance of such a control and beneficial use by her husband of property previously settled upon her by him, is at the risk of having it declared responsible for his debts.</p> <p>6. It is sufficient in a bill brought to have a conveyance set aside on the ground that it was made with intent to defraud creditors that the complainant state a prima facie case, to be afterwards established by proof; mere matters of evidence on the general question of fraudulent intent need not be made the subject of special averment.</p> <p>7. Where a partner uses the funds of the partnership to purchase property and settle it upon his wife, creditors of the partnership may pursue the property in equity. — Concurring opinion.</p>

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

<p>1. Although during the pendency of a suit brought upon a promissory note endorsed in blank the plaintiff transfer it by delivery, he may still maintain the action if it be agreed between him and the transferee that notwithstanding the delivery the legal title shall be considered as still remaining in the plaintiff for the purpose of prosecuting the suit.</p> <p>2. The holder of a promissory note endorsed in blank transferred it by delivery pending a suit brought by him upon it, his attorney filing an order in the cause for the entry of the suit to the use of the transferee, which was done. On the trial the defendant contended that plaintiff had parted with his title and could not maintain the action.</p> <p>Held, That the order of the attorney was to be presumed as authorized by plaintiff, and that this order was equivalent to an agreement that the suit should be prosecuted for the benefit of the assignee of the note, the legal title to remain in the nominal plaintiff as far as neces- • sary for that purpose, and that under such circumstances the suit could be maintained.</p>

<p>R., at the time, of his death, was a member in good standing of an association in the nature of a life insurance company whose object was, as declared by the charter and by-laws, “to provide and maintain a fund for the benefit of the widow, orphan, heir, assignee or legatee of a deceased member.” By a provision of one of the by-laws if a deceased member had no legal representatives the money they would have been entitled to was to become the property of the association. Another by-law provided that “no change of beneficiary can be made or recognized until submitted to and approved by the board of directors.” R. had joined the society in the lifetime of his first wife, and named her as the beneficiary, she dying, he married again, and died intestate, without having notified the association of inly change of beneficiary. Whereupon three separate claims wore made to the fund. First, by the representatives of the first wife ; second, by the representatives of the husband ; third, by the surviving widow.</p> <p>Held, 1. That the language used by the husband in designating his first wife as the beneficiary must be interpreted as meaning only in case she survived him, and as she did not, her representatives were nor. entitled.</p> <p>2. That the term “legal representatives” in the clause providing “that where the deceased member has no legal representatives the money shall become the property of the association,” is to betaken as meaning those who are legal representatives in the, contemplation of the charier and, by laws, to wit., the people there enumerated “the widow, orphans, heir or legatee,” &c.</p> <p>3. That in the absence of any direction by the deceased, the order in which the parties to be benefited are named in the charter and bylaws is the order in which they are entitled to the fund, viz., the widow ; if no widow, then the orphan; if none, then the heir, &c.; and therefore the widow was entitled to the fund in this case.</p>

Suit on a promissory note dated March 11,1880, described as payable three days after date. There were no common counts to the declaration. At the trial the plaintiff' offered in evidence a note payable ten days after date. Defendant objected, on the ground that the note sued on, and a copy of which had been served on him, was payable three days after date. The objection being overruled, the note was admitted in evidence, and judgment was entered on verdict for the plaintiff.

STATEMENT 0E THE CASE. Assumpsit for work and labor doné and materials furnished. After issue joined, the defendant gave notice to plaintiff* to produce at the trial his books of original entries.

<p>1. Where in action to recover damages for injuries to property the Statute of Limitations is pleaded, recovery can only be had for such injuries as were incurred during the period not covered by the Statute.</p> <p>2. The admission of evidence as to injuries suffered, without regard to the period covered by the Statute,' is error, but will be cured by an instruction afterwards given the jury that the plaintiff cannot recover for such injuries as were inflicted prior to three years before the bringing of suit,provided the evidence given is such that the jury can divide the injuries inflicted within the three years from that which was incurred prior thereto, but it will be otherwise when the evidence is not of such a character.</p> <p>3. Damages resulting to private property from the defective construction of a sewer by the District affords no ground of action unless it' is shown that the District was guilty of carelessness either in the selection of the engineer or in the selection of a plan.</p>

<p>Where on appeal the court in General Term remands a case to the Special Term, a bill to review the decree entered in obedience thereto cannot be entertained by the Special Term. But where the decree of the General Term extends to part only of the decree appealed from, the Special Term may entertain a bill to review so much of its own decree as was not affected by the decree of the appellate court.</p> <p>2. Where a demurrer is to the whole bill and is good only as to a part, it must fail altogether unless the court grant leave to amend, which it may do.</p>

STATEMENT 0E THE CASE. Abraham Butler being seized of lot 23 in square 254 in the city of Washington, died leaving his last will and testament.

STATEMENT 0E THE CASE. Motion for a new trial on exceptions. This was an action to recover a balance of $575.92, with legal interest claimed to be due on certain promissory notes executed by the defendant. The defendant had signed the notes at the request of, and for the accommodation merely of one Seth Terry, -who desired to negotiate a loan.

<p>1. The effect of sections 727 and 72S of the Revised Statutes relating to the District is to render a married woman competent to act in tier character of proprietor of her separate estate, just as any other proprietor may act. Not only may she give away, sell, lease or lend her separate property, but she may charge it with any kind of lien, and she may do so by the same acts or contracts which would operate in the case of any other proprietor.</p> <p>2. In addition to the absolute contract power given her by these two sections, in casos w'here her separate property was the subject-matter of the contract, Congress went further and gave her in the next section a like power in certain other defined cases where the subject-matter of the contract was not her separate property, but something “having relation ” to it, although it was a matter in which, previous to the contract, she had no interest or right.</p> <p>-3. The question whether the alleged contract is about a matter having the required relation to her separate property, is a question of law.</p> <p>•4. That is not, within the meaning of the statute, a matter having relation to her separate property, when there is a total absence of all right to claim, as her property, that to which the subject-matter of the contract is alleged to have relation.</p> <p>3. But this ruling is not to be taken as meaning that, in ascertaining the existence of a separate property to which the matter of contract must liave relation, the question whether her title is a good and valid one will be tried.</p> <p>■6. The furnishing of a house belonging separately to a married woman is a matter having relation to her separate property within the meaning of the statute.</p> <p>7. An executory agreement by a married woman to purchase a house, is-binding upon neither party. She will not, therefore, by virtue of such agreement, be the owner of a separate estate in relation to which-she may make a contract.</p> <p>8. Whether a married woman who takes a lease of a house, and thereby acquires a term, may contract for the furnishing thereof, as a matter-having relation to her property in the term, quaere.</p> <p>9. A married woman being in the occupation of a house and premises, it was contended that, as she could not be dispossessed by the owner-without thirty days’ notice, she was, therefore, the owner of a term in the premises to that extent; that such a term was her separate property, and that the purchase of furniture to furnish this house was & matter having relation to her right to possess it for this term.</p> <p>Held, That the thirty days’ notice is a limitation upon the landlord’s remedy, and that the occupation meanwhile being on suffrance has not the quality of a term; it is not assignable, and has none of the traits of property, and therefore cannot be treated as the separate property of a married woman.</p> <p>10. The statute gives to a married woman power to make certain contracts when she actually has separate property, but she is not given that power by merely pretending to have such property. The question is one of legal capacity, and a fraudulent pretense that the capacity exists cannot create it. The doctrine of estoppel has, therefore, no-application to a-case of that kind.</p> <p>11. A married woman made a purchase of furniture. The contract had no relation to her separate estate, but she promised to pay for the goods out of the 'rents derived from a house which was her separate property.</p> <p>Held, That at law this was a mere promise to pay money, and that a . married woman’s promise to pay for that which does not relate to her separate property cannot be enforced. Whether such a promise would operate as a charge upon her rents and could be enforced in equity,. quaere.</p>

<p>1. In an action to recover damages for a private nuisance on the premr ises of the defendant, it is error to admit in evidence an official leter addressed by a municipal officer to the defendant notifying him of the existence of a public nuisance upon his property and directing him to abate it. Such a letter, if regarded as an official proceeding, is res inter alios; if treated as a declaration of the fact, it is mere hearsay. It is also objectionable because it refers only to the existence of a public nuisance, aud could not therefore establish the fact of a private nuisance.</p> <p>2. That which is a public nuisance affords no ground of action unless it is also a private nuisance.</p> <p>3. A verdict will be set aside when evidence calculated to exercise a decided influence upon the minds of the jury has been improperly admitted.</p> <p>4. Where one owning a piece of ground lays it off into lots and streets, and, after sewering the streets, sells the lots, each lot being sold with an easement in these sewers, he thereby parts with his right of control over the sewers, although he still retains the technical ownership of the soil of the streets.</p> <p>5. A person is liable only for that damage which is the direct and proximate result of his acts. Therefore where a sewer is not of itself a nuisance, the owner or builder is not'liable because a nuisance is created by an improper use of it by others, and over which he has no control.</p> <p>6. Semble, It might be otherwise if in granting an easement in the sewer he had warranted to the grantee the right to make such improper use of it, or having retained control over, had knowingly permitted such use.</p>

STATEMENT 0E THE CASE. Motion for judgment on the following special verdict: “ We, the jury, duly impanelled and sworn to try the issue joined in tbe above entitled cause, find the following to be the facts in the case, as made by the plaintiff and defendant, to wit: “ The defendant is a corporation created by act of Congress, operating a street railroad in tbe city of Washington. “ On the evening of the 20th of August, 1876, the plaintiff hailed one of the defendant’s cars,…

<p>It- Where one partly performs his contract and then refuses to complete it, he has no right of action' upon the contract even for the work already done ; his rights under it are gone when he abandons it, and the other party has a right to treat it at once as at an end.</p> <p>"Quaere, whether the acceptance of the work partially performed, even when the acceptance cannot be avoided, does not raise an implied assumpsit to pay the reasonable value of the work so accepted.</p> <p>"3. But in the case of an uncompleted contract to build a house, when the work already done has been paid for, the owner has the right immediately upon the default to take possession of the unfinished fouilding and finish it himself, or employ others to do so, and under no sueh circumstances can the original contractor have a claim upon the owner of the land for any saving effected on the original contract price in the completion of the building.</p> <p>•¡3. Under a building contract, M., the owner, had full power, in case of the default of the contractors, B. & C., to finish the houses at their cost, and to deduct the same from any money owing them at the time of default. B. & C. defaulted, having been paid for all work done to •date. The completion of the houses was then undertaken by M., and •effected at 'a less cost than the original contract price. It was argued ’•that this completion was, under the terms of the contract, a completion by M. as agent of B. & C., and on their account, and henee B. & C. were entitled to the saving made on the contract price.</p> <p>■Beld, That it was optional with M. to complete the contract on B. & -C.’s account, or to treat it as wholly rescinded, and finish the houses for his own benefit; that having elected the latter, the saving was his •own, and not B. & O.’s. But, quaere, if money sufficient to finish the work and belonging to B. & O. had been in M.’s-hands, would the work finished by M. be work done with the money of B. & C., and, in •contemplation of law, their work, so as to entitle them to any saving on the contract price made by M. ?</p> <p>Semble, If M. accept an order of B. & C. in favor of H., payable out of whatever will be due B. & C. on the completion of their contract, and afterwards advances to B. & O. money that was due only on such completion, he will be liable to H. for as much as was thus paid away to •the latter’s prejudice.</p>

<p>Motion for new trial on exceptions.</p> <p>The Case is stated in the opinion.</p>

This was a proceeding commenced before a justice of the peace to recover possession of certain premises in the city of Washington. The plaintiff averred in his complaint that the premises were detained without right by Charles G. Godfrey and Ephraim S. Randall, to whom plaintiff had leased the same under the firm name of Godfrey & Randall, and whose tenancy and estate therein had determined by the terms of the lease. Godfrey did not appear and no step was taken in his behalf.

Motion for new trial on exceptions. This was an action of debt brought by the surviving-partner of J. & T. Green, against John L. Lake and Jonathan Tarbell, based on the following promissory note… Held: and time of payment delayed from first maturity till the present writing, against the will of the firm. Tarbell knew the note had not been paid, and asked for time for Lake to pay it.

<p>1. In an action for malicious prosecution, evidence that the defendant, in suing out the warrant, acted under the advice of a magistrate, police officer or other layman, is not admissible.</p> <p>2. Nor will the declarations of the defendant, post litem motam, be admissible in his defence.</p> <p>3. The plaintiff, for the purpose of showing the want of probable cause may show that, prior to his arrest, he was a man of good character and reputation in the community in which he resided, and that the defendant knew this.</p> <p>4. Where it appears in the bills of exceptions that, notwithstanding an exception taken to the admission of certain testimony given by one of the defendant’s witnesses, the same testimony was afterwards given by the defendant himself, without objection on the part of the plaintiff, the ruling of the court in admitting the testimony in the first instance, will be no ground for a new trial.</p> <p>5. In an action for malicious prosecution, the defendant may testify as to his motive, and that he was not actuated by any malice or ill will in instituting or carrying on the prosecution.</p> <p>6. Where a party selects from the evidence bearing upon the question of probable cause, an isolated circumstance, and requests the court to express to the jury an opinion as to its probative forcejseparated from any other fact proved in the case, a refusal to do so is not error. „■</p> <p>7. Nor is it error to refuse to instruct the jury that in consequence of the defendant’s failure “ to assail the character and reputation,” of the plaintiff, the presumption of the latter’s good character and reputation, “ become absolute in the case.”</p> <p>8. Nor to refuse certain prayers presenting propositions of law already set forth in other prayers, and subsequently enforced by the charge of the court.</p> <p>9. The practice of multiplying instructions unnecessarily and of announcing to the jury abstract propositions of law in the words of the definitions from text books, whereby the jury are misled and embarrassed, commented on and condemned.</p> <p>10. While it is the province of the jury to find whether the facts alleged in support of the presence or absence of probable cause, and the inferences to be drawn therefrom really exist, it is for the court to determine whether upon the fact so found, there be probable cause or the want of it.</p> <p>11. Casual words in the midst of a long charge, where it is apparent that they could not have been understood by the jury as nullifying all the foregoing instructions in the prayers and charge, will not be a ground for new trial.''</p> <p>12. In an action for malicious prosecution, a verdict for the defendant will not be set aside, although the justice trying the cause has erroneously charged the jury if it appear from the record, that (conceding the evidence to be true) the plaintiff has failed to make out a case of want of probable cause.</p> <p>13. Facts reviewed, which the court considers repel the charge of want of probable cause.</p>

The plaintiff commenced an action before a justice of the peace to recover the rent of premises owned by her.

<p>1. Where a decree in equity is relied upon as res judicata and is pleaded in bar in a subsequent suit, it must be shown that the decree was made upon the same subject-matter and for the same purpose, and that the parties in the character in which they are litigants, are identical;</p> <p>2. For the purpose of ascertaining the point in controversy in a former suit and what tlie court really intended to settle by its decree, not only the record, but, if necessary, the opinion, as reported in the officially published report of the case, will be examined.</p> <p>3. The matter settled by a decree in a former suit, stated by the court and distinguished from that of the case at bar and held not to be an adjudication of the present controversy.</p>

<p>1. In the absence oí an express contract, the Taw does not impljr a promise from a father to a son to pajr for services rendered when the son is living with the father free of all cost for board and lodging.</p> <p>2. Where the issue on trial is the value of the services of a son as clerk, in his father’s store, evidence of the amount of salary paid by the father to another son in the same store is irrelevant and inadmissible-</p> <p>3. Where the plaintiff has taken the witness stand in his own behalf in a suit against an executor to recover the value of services rendered the testator, it is error and a good ground for a new trial if the court admit his testimony against the objection of the defendant as to-statements made by the deceased relating to a matter in controversy-</p>

STATEMENT 0E THE CASE. Motion for new trial on exceptions. The plaintiff sued the defendant for money payable by the defendant to the plaintiff, upon the following contract : “ Washington, D. C., May 6th, 1879. ^F. A. Cotharin: “You are hereby authorized to insert my advertisement in the Musical Gift,’ to occupy J column, 2d page, for and in consideration of which I agree to pay to you or order on presentation of this contract and certificate from printer as to the number…

In August, 1874, the plaintiff brought suit against the defendant upon a draft alleged to have been drawn by the defendant and one Witkowski upon Peck and Hovey, in favor of the plaintiff.

<p>1. A deed of bargain and sale of real estate not recorded within six months from its date, and containing no trust expressed upon its face, is void against creditors whose judgments were obtained prior to its record, although subsequent to the date of the deed.</p> <p>2. While it is true that a judgment creditor does not levy upon any other or better title than that which the debtor has, and that he takes it subject to all outstanding equities, yet the Statute of Frauds has made it necessary that any trust attaching to property in the hands of an ostensible, owner shall be expressed in writing.</p> <p>3. The rule established by the Statute of Frauds and the registry laws-is, that the creditor is entitled to pursue the ostensible title even though-it may not be the real title of the debtor.</p>

<p>1. Declarations of the vendor or assignor made subsequently to the transfer of property by him are not admissible in evidence for the purpose of impeaching such transfer.</p> <p>2. Where the vendor took the property to the presence of the vendee, told her it was hers, gave her a bill of sale, and took a dollar apparently .to bind the hargain, and the vendee thereupon asked the vendor to retain and take care of the property for her, this is a delivery constructively and symbolically if not actually.</p> <p>3. Under the Maryland act of 1729, eh. 8, sec. 5, in force in this District, an executor or administrator, as such, cannot assail any transfer of property which would be good against the deceased were he living;. any rights which they may have as creditors to impeach the transact tion must be pursued by them in that capacity.</p> <p>4. Form of judgment for plaintiff in an action of detinue.</p> <p>5. A judgment in detinue if improperly entered, may be reformed by the general term so as to be according to the precedents, without sending; the case back for a new trial.</p>

<p>.Motion for new trial on exceptions.</p> <p>The Case is stated in the opinion.</p>

<p>1. In ejectment in this District the general rule is that in making proof' of record title the plaintiff must go back to the original source and show a grant either from the State of Maryland or the United States, and then, if there should be a hiatus in the chain of title, twenty years possession in conformity with the deeds will raise a presumption of the missing links. But when both parties claim title from the same source it is not necessary to go beyond that source.</p> <p>2. When the plaintiff has failed to trace title from thh State of Maryland or the United States, and the defendant, instead of resting upon that defect, goes on with his evidence and in the course of it shows that he-is claiming from the same source as the plaintiff, the defect in the-plaintiff’s proof will be cured.</p> <p>3. The relationship of a deceased party cannot be established by his own declarations, but must be proved aliunde; when, however, that relationship is once established, his declarations as to kinship of other parties are admissible.</p> <p>4. An exception to this rule is allowed only in cases of very ancient pedigree, where it is impossible to find proof of the declarant’s relationship otherwise than by his own declarations, but even in that case some degree of evidence is required.</p> <p>5. A party has a right to designate his own heirs; whether he be mistaken as to the relationship or not concerns no one but himself ; declarations of a deceased party upon that subject are therefore properly admissible.</p> <p>.6. Proof that plaintiff’s parents, who were slaves, lived together ins Virginia as man and wife, without proof of a marriage either according to law or according to any custom prevailing at the time in any State, cannot be received as evidence of the legitimacy of their offspring.</p> <p>7. The provisions of section 724. Revised Statutes of the District of' Columbia, in relation to the cohabitation of colored persons previous to their emancipation, applies only to those who were residents of the District of Columbia.</p> <p>8. In an action of ejectment plaintiff should show that the defendant was-in possession.</p>

<p>1. A municipal corporation is not liable lor the consequences oí a mere error of judgment in the plan or design of its public works ; negligence in the choice of its agents or instrumentalities must be shown.</p> <p>2. If a sewer when first constructed be of adequate capacity but subsequently becomes obstructed, whereby damage ensues, no responsibility therefor attaches to the municipal authority except after notice and neglect to redress the evil.</p>

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

<p>1. In pursuance of conventions between Mexico and the United States, for the adjustment of certain claims, concluded Jury 4, 1868, and April 29, 1876, a commission was established which awarded a sum of money to W. Subsequently June 18, 1878, Congress, by its act of that date, directed the Secretary of State to receive from Mexico, and •distribute to the various claimants the amounts awarded them, except that in the case of W. the President of the United States was requested by the 5th section of the act to investigate any charges of fraud presented by Mexico as to said case “ and if he shall he of opinion that the honor of the United States, the principles of public law, or «consideration of justice and equity ” require that said case should be opened and retried, it shall be lawful for him to withhold payment of said award, &c. An investigation of the charges was accordingly made and a decision in favor of W. arrived at, whereupon certain instalments of the award were paid to him. This was during the term of President Hayes. Afterwards, and during the term of his successor, the question arose whether the power conferred by Congress to investigate, &c., was exhausted by President Hayes’ exercise of it or on the contrary, was a continuing Or recurring power which might be exercised by any succeeding President, who, if he should be of a different, opinion from bis predecessor,'would be authorized to withhold payment of the instalments yet undistributed.</p> <p>Held, That the request was obviously addressed to the existing President, and when he made the investigation and announced the result, this request was satisfied. That it could not be considered a continuing ami reiterated request to each succeeding President to re-examine the subject, and consequently the power to withhold the payment of the award which was to result from that examination must be deemed equally limited.</p> <p>2. Where money due citizens of the United States has been paid, under a treaty, by a foreign government to the United States, but there is no provision as to the manner in which the money is to be distributed among the claimants, and Congress subsequently enacts a law to that end, it is within the power of Congress to repeal such law, and to provide a different mode of distribution, or even to leave the claimants, just as they were before the passage of the act; and this it may do-either by directly repealing such law or by the ratification of a treaty inconsistent therewith.</p> <p>3. The President has no power to make treaties except by and with the advice and consent of the Senate, and with the concurrence of two-thirds of its members present. A treaty, therefore, which has not been thus ratified, is wholly inoperative to affect antecedent laws or the rights acquired under them.</p> <p>4. When Congress is in session, and a law or treaty calculated to repeal an existing law is pending before it, this court, it seems, might, under such circumstances', await the final action of that body upon such law or treaty, before granting or refusing a writ of mandamus prayed for against one of the co-ordinate branches of the government to compel it to carry into effect the existing law. But it will be otherwise when such law or treaty has been pending during two sessions and Congress-has adjourned without acting upon it.</p>

<p>1. An appeal lies to the General Term from the rulings of the court in special term during the trial of issues from the Orphans’ Court, involving the execution of a will and the competency of the testator. Affirming Coughlin vs. Poulson, 2 Mac A., 208.</p> <p>2. Where an appeal is taken from the action -of the court below overruling a motion for a new trial, on the ground of the insufficiency of the evidence, or because the damages are excessive, the statute (secs. 805-6 B. S. D. C.) requires the settling of “ a case ” containing all the testimony, and such a case is presented when the re'cord contains the certificate of the trial justice that it embodies all the evidence produced on both sides at the trial. Affirming the decision upon this point in Dant vs. District of Columbia, 3 Mac A., 273.</p> <p>3. The exceptions to the rulings of the court need not be made the subject of separate bills but may be embodied in the “case” certified by the trial justice.</p> <p>4. The rule of the common law that the granting or refusal of a motion' for a new trial is a matter resting in the discretion of the justice trying the case and cannot be the ground of a writ of error on appeal, has been affected by the Bevised Statutes of the District only so far as to give the right of appeal in three cases, viz., where the motion has been urged upon exceptions, or for insufficient evidence, or for excessive damages. The General Term, has, therefore, no power to interfere with a verdict on the ground that .it was contrary to the evidence, or against the weight of the evidence, or because it is inconsistent or uncertain.</p> <p>5. It is the legal sufficiency of the evidence which the statute refers to when giving an appeal upon the ground of “ insufficient evidence.” and evidence is legally sufficient where it is of such a character and Volume that it may well satisfy a reasonable mind of the truth of the position it is introduced to maintain, in which case it must be submitted to.the jury, who are the exclusive judges of its sufficiency in fact, and their finding cannot be interfered with by the General Term.</p> <p>■6. The degree of mental capacity, which must be possessed by the testator in order to make his will valid, is no more nor less then that which is requisite iri the case of a deed or contract.</p> <p>7. Undue influence and importunity sufficient to invalidate a will may be exercised without the existence of fraud.</p>

<p>A general devise over after the creation, of a life estate in the same property will pass the fee.</p>

<p>An appeal from the action of a justice of this court holding a Special Term for Orphans’ Court business, is to be taken in the same manner as an appeal from the action of a justice holding any other special term of the court.</p>

<p>1. If the failure of one of the parties to a contract be but partial, leaving a distinct part as a subsisting and executed consideration, and leaving also to the other party his action for damages for the part not performed, the latter cannot treat the contract as rescinded unless both are returned to the condition in which they were before the contract was made.</p> <p>2. S., having contracted to build certain dykes, formed a partnership with M., who agreed with S. to do a portion of the work, M. partially performed his portion and then discontinued, whereupon S. entered into a new and different contract with M. in regard to the completion of the same work.</p> <p>Held, that this new contract was a. substitute for and settlement of all that had preceded it and that S. could not thereafter recover for any loss or damage occasioned by M.’s failure to carry out his first contract.</p> <p>3. Where M., for a share of the profits, agrees to furnish S. with the means to enable him to perform certain work and partially fails, the remedy is at law and the measure of damages is the increased cost to-which' S. has been subjected by such failure.</p> <p>4. If, on the other hand, M. was justified in ceasing to furnish the means because of some breach of the contract on the part of S., while he may not claim a share of the profits, qua profits, he may have his action for damages.</p> <p>5. In all the instances above given, the remedy is at law and not in equity.</p>

<p>1. Though a married woman come into possession of real estate after the passage of the Married Woman’s Act of 1869, if her title be derived through a will which took effect prior to the passage of the act, her rights in the property are not affected by the actjbut are to be determined by the common law.</p> <p>2. The husband has a freehold in such of the wife’s freehold property as she acquired prior to the act of 1869, and although her title be a. joint tenancy, he is entitled, in right of his marriage, and during thecoverture, to the possession and the rents and profits.</p> <p>3. Where such a title is held by the husband it is equivalent to a freehold, and ejectment by the wife and her joint tenants to recover the possession, cannot be sustained unless the husband be joined in the-action.</p> <p>4. Where the question is one of personal capacity to sue, as coverture,, it should be pleaded in abatement, but where the question is one office, as that the title claimed by one of the female plaintiffs in ejectment is in her husband (who is not a party to the action) and not in. herself, this may be shown under the general issue.</p>

<p>1-. Where a contract is made for the delivery or acceptance of securities at a future day, at a price named, and neither party at the time of making the contract intends to deliver or accept them, but merely to pay differences, according to the rise or fall of the market, the contract is a gaming one, and is void as contrary to public policy.</p> <p>'■2. The endorser of a promissory note given on account of such dealings as are recognized as gaming transactions, can rely upon their illegality as a defence to an action on the note.</p> <p>•3. In an action to recover money, where the defence set up is that the contract was a stock gambling one, the real question for determination is the bona fides of the transaction. It is not the form but the intent with which the scheme was planned. If neither party contemplated that there should be a delivery of the stock, but merely to pay differences according to the rise or fall of the market, the contract is a gambling one.</p> <p>4. It is not the province of the court in General Term, on a bill of exceptions to the ruling of the court below, to decide as to the weight of the evidence, and its sufficiency in fact, but to determine whether the record discloses sufficient evidence in law to justify the granting of ■the prayer refused.</p>

<p>1. Where, in a reference to an auditor under the Act of Md., 1785, ch. 80, the proceedings before the auditor are such as in actions of accounts, the right of hearing before the court as to all questions of law, and of trial by a jury upon all matters of fact, is to be preserved to the contestants.</p> <p>2. And where the auditor undertakes to decide all questions of fact it would seem to be clearly against the spirit of the statute to admit the report before the jury even as prima facie evidence of the truth of its assertions or conclusions.</p>

<p>1. Letters of administration granted by the Orphan’s Court of this District upon the local assets of a deceased non-resident entitle the administrator to receive and receipt for moneys due his intestate in the Treasury of the United States, at Washington.</p> <p>2. Whenever such payment is a mere ministerial function, not involving the exercise of official discretion, and the officers of the Treasury refuse to pay the administrator, a mandamus will lie from this court to compel such payment.</p> <p>3. Such moneys constitute personal assets of the deceased within this District.</p> <p>4. Since the repeal of the act of J une 24, 1812, by omission from the Revised Statutes, foreign administrators can neither sue nor be sued as such in the District of Columbia.</p>

<p>Notwithstanding the act of Congress of April 29, 1878, providing for the recording of deeds, &c., property in the possession of one who has in good faith purchased and paid for it but has failed to record the conveyance, is not liable to attachment in a suit by a creditor against the absconding vendor, when it appears that as between the vendor and vendee the entire equity in the property has passed to the latter; the statute regulating attachment proceedings permits the plaintiff to attach only the property of the defendant, not the property of some one else.</p>

<p>Where by a resolution of a stock company a promissory note is issued to pay an indebtedness of the company, the note .being signed by the treasurer and endorsed by the directors as such, and afterwards the paper is taken up by one of them, this is nothing more than an advancement by him in behalf of his co-obligors, and entitles him to a contribution for the money thus advanced; he cannot pick out one of the endorsers and charge him with the whole liability, as in the case of an ordinary endorsement. .</p>

<p>1. An action for goods bargained and sold is not sustained by proof that the goods were pledged and that the pledgee sold them and appropriated the money to his own use.</p> <p>2. The proper remedy is an action of trover to recover the goods or their value ; or assumpsit for money had and received, hut in the latter case the pledgor would be entitled only to the amount received for the goods by the pledgee, less the amount advanced with interest thereon.</p> <p>3. The rights and liabilities of pledgor and pledgee in a case of alleged forfeiture of the pledge incidentally considered.</p>

<p>Pending cross-appeals from a decree settling equities between a market company and certain of its tenants, lessees of stalls, receivers were appointed to collect the rents. There was no provision in the decree appointing the receivers authorizing them to enforce payment of the rents nor directing them to take possession and lease the stall to another in case any tenant-should abandon it or otherwise violate the terms of his lease. The tenants failed to prosecute their appeal and one of them, after failing for some time to pay the receivers any rent, abandoned his stall. Whereupon the market company took possession and leased it to another.</p> <p>Held, that the authority of the receivers extended only to receiving the rents from these particular tenants as they chose to pay, and that on non-payment of the rent, or other violation by the tenant of the terms of his lease, the landlord was entitled to re-enter.</p>

<p>1. Even though the evidence for the plaintiff was insufficent to make out a prima fade case, this court will not sustain an exception to the refusal of the court below to so instruct the jury, if it appear that the defects of the plaintiff’s ease were afterwards supplied by the evidence offered by the defendant.</p> <p>2. A general exception to the granting of prayers is irregular. The party objecting should except specially to the granting of each prayer.</p> <p>3. So, too, with the charge; the unobjectionable parts should be segregated from that which is objectionable and the latter excepted to specially.</p> <p>4. If a parent sues for the loss of services of a child by reason of injuries resulting from the defendant’s negligence, contributory negligence on the part of the parent is a complete defence; but it is otherwise if the child sues by the parent or any other next friend.</p> <p>5. What would be contributory negligence in an adult, may not be such in the case of a child of tender years; the caution required is according to the maturity and capacity of the child, and this is to be determined by the circumstances of the ease.</p> <p>6. The question whether the capacity of a child is such that he can be charged with contributory negligence is one of fact which must be determined by the jury.</p> <p>7. Though the evidence of negligence may be slight, and though it may have affected the court differently from the way in which it affected the jury, the court may not feel at liberty to say that there was not sufficient to go to the jury.</p> <p>8. The respective obligations of street railway companies, and of persons, (including children) crossing the railway tracks declared in the instructions given to the jury by the court below and approved by this co urt.</p>

<p>A tenant may contract with, his landlord to quit on shorter notice than: thirty days, notwithstanding the provisions of the Landlord and? Tenant’s Act of the Revised Statutes of the District of Columbia.</p>

<p>1. Plaintiff recovered in the Circuit Court of this District a judgment in an action of tort. On appeal to the Supreme Court of the United States the judgment was affirmed with costs and interest, until paid, “ at the same rate per annum that similar judgments bear in the courts of the District of Columbia.”</p> <p>Held, That these words are not to be taken as directing an inquiry into the character of the action in which the judgment below was rendered, but merely as indicating that the rate per centum, at which the interest must be computed, shall be no higher or lower than the legal rate in the jurisdiction where the judgment was originally recovered.</p> <p>2. And it seems, per Hagner, J., that a judgment founded on tort, recovered in the coürts of this District, bears interest from its rendition to its satisfaction.</p>

<p>1. Section 876 and 877 of the Revised Statutes of the District of Columbia, regulating the competency of parties to actions, suits, &c., as witnesses, does not apply to suits for divorce a vinculo.</p> <p>2. But in a suit for a divorce from bed and board, on the ground of cruelty, the petitioner may, under the 98th Equity rule of this court, be examined as a witness as to any cruel or inhuman treatment, alleged in the petition to have taken place where no witness was present competent to testify. In all other cases the parties are incompetent.</p>

<p>1. The act of Congress of June 30, 1877 (19 St., 94), is substantially an enactment that the acts of Congress relating to national banks, including the provisions of Section 5154, providing for the conversion of banks into national banks, shall be applicable to savings and other banks in this District, except that savings banks existing at the time of the passage of the act are not required to have a capital of $100,000 in order to be converted into national banks. It was competent, therefore, for a savings bank organized in this District under the General Incorporation acts of May 5 and June 17, 1870 R. S. D. C., § 553, to avail itself of the law for converting banks into national banks.</p> <p>'2. The certificate of the Comptroller of the Currency is conclusive as to the regularity of the proceedings by which any bank has been converted into a national bank.</p> <p>3. Where a shareholder of a corporation is called upon to respond to a liability as such, he is not permitted to deny the existence of such corporation.</p> <p>4. Where the owners of more than two-thirds of the stock of a bank consent to the conversion of the bank into a national bank, such a conversion may take place without the concurrence of the remaining stockholders.</p> <p>5. While it might be more regular, on the conversion of a bank into a national bank, for a new stock book to be opened and new certificates to be issued in the name of the national bank, yet as there is nothing in the law prescribing the form of the stock book, or of the certificates of stock, there is nothing to preyent the new bank from treating the old books and certificates as sufficient evidence of title in the concern; neither the rights nor liabilities of the stockholders could be affected by the mere omission to issue a new form of stock certificate to them. To hold otherwise would be to allow all the stockholders to escape liability by the mere omission of the formality of issuing the shares in a new form.</p> <p>6. Where a stockholder of the old bank has given his consent that the stock should be converted into stock of the national bank, he becomes by virtue of that consent a stockholder in the new bank, notwithstanding any omission to issue new certificates of stock.</p> <p>7. Under the Married Woman’s Act of 1869, R. S. D. C., the right of a married woman to hold bank stock, acquired by her during marriage, otherwise than by gift or conveyance from her husband, is as absolute as if she were unmarried; she can convey, devise and bequeath it in the same manner and with like effect as if she were unmarried, and may contract, sue and be sued in her own name, in all matters having relation to it; she is also amenable to all the consequences of its ownership and of its conversion into national bank stock, including the individual responsibility of stockholders, in the same manner as if she were a feme sole.</p> <p>8. Where the wife acquires property by gift or conveyance from her husband, she holds it, as she would at common law, with a qualified . property in her husband, being unable to assign it without his consent ; and she is liable, if it is a chose in action, to have it reduced to his possession.</p> <p>9. Stock of an incorporated company is a chose in action.</p> <p>10. Where a married woman holding savings bank stock derived by gift or conveyance from her husband agrees with his consent to convert the stock into national bank stock, she thereby regularly and legally acquires title to the latter stock; and although she still holds the new stock subject to the marital rights of her husband, she is nevertheless subject to the individual responsibility of national bank. stockholders, and may be assessed for all losses and be compelled to pay out of her other estate to the amount of the par value of her-stock.</p> <p>11. It seems, however, that it might be otherwise if the transfer of the stock to her and its subsequent conversion were made without her knowledge or consent..</p> <p>12. The liability incurred by a holder of national bank stock, to be assessed to the amount of the par value of the stock for all losses of the bank, is a statutory liability, and not a contract one. It is a liability imposed by the statute as an incident of the ownership of the stock, and attaching to all who are capable of that ownership, without reference to any supposed voluntary assumption of the liability by express or implied contract. Therefore, where national bank stock is held by a feme covert, either in her own right or subject to the common law marital rights of her husband, the liability to be assessed affects her alone, and a suit to enforce the collection of the assessment is properly brought against her without joining her husband, as would be necessary in the enforcement of any common law obligation or liability of the wife.</p>

<p>1. As long- as a fund is held professedly and admittedly as a trust, no lapse of time precludes the beneficiary from claiming it. But the moment there is some breach of duty or adverse claim by the trustee, the statute commences to run.</p> <p>2. It is doubtful whether the law of trusts, as a bar to the Statute, applies to the case of money collected by an attorney for his client, since such moneys are not intended to beheld in trust, but are to be paid over promptly.</p> <p>-3. When an administrator founds a claim upon a contract made by himself, although it relates to the estate he represents, he may sue upon the contract in his own name. Whether he may also sue on such a contract in his tepresentative character, quaere.</p> <p>4. When one is barred by the Statute of Limitations from suing on a contract in his own name, he cannot remoye the bar by taking out letters of administration and suing in his representative character.</p> <p>-5. As a general rule, when the Statute of Limitations begins to run, no-subsequent transfer of title to the cause of action arrests its operation, thus if it has commenced to run against a party in his lifetime, it continues to run against his administrator; if it has commenced to run against an administrator, it will continue to run against the administrator de bonis non, &c.</p> <p>-6. An action for money had and received cannot be sustained unless it be shown that when the money was received it was ex aequo et bono the money of the plaintiff claiming it, and that it was received at the time for his use.</p> <p>7. By an express contract, money was received by W., an attorney, for C., the latter being an administrator appointed in Florida. The attorney alleged an assignment of the fund and refused to pay it over. More than three years afterwards C. took out letters here and described himself as administrator under the laws of this District, and brought an action against W. for money had and received.</p> <p>Held, That although the money was not payable to C, as administrator here, his description of himself as such might be rejected as surplus-age, and, but for the Statute of Limitations, a recovery allowed in his individual name. .</p>

<p>1. Before judgment, the parties to a pending suit may settle it between themselves without considering either the wishes or the interest of the attorneys.</p> <p>2. Plaintiff brought an action of tort to recover damages for injuries received. Pending the suit, plaintiff and defendant, without tiie knowledge of plaintiff’s attorneys, settled the ease. Plaintiff then gave defendant an order on the clerk of the court to dismiss the suit, which being filed, plaintiff’s attorneys moved the court to set the cause down for trial notwithstanding, on the ground that the settlement was collusive and was made with knowledge on the part of the defendant that the plaintiff’s attorneys were interested in the case to the extent of their fees for services. An affidavit accompanied the motion showing that the plaintiff had agreed to pay his attorneys a contingent fee of thirty-three per cent, of the amount that should be recovered. The court thereupon passed an order that defendant should pay to plaintiff’s attorneys one-third of the sum for which the case had been settled, and in default thereof the entry of dismissal should be struck out and the cause set down for trial. Oil appeal this court reversed the order, holding:</p> <p>That the court will not interfere to enforce in a summary way through the original suit, the collateral engagement of a client for the compensation of his attorney, hut will leave the latter to his common law remedy.</p> <p>3. Whether the order of the court below was an appealable order, quc&re.</p>

In January, 1876, the German American Savings Bank of the District of Columbia took, for value received, two notes of $10,000 each, dated January 5, 1876, payable respectively one and. two years after date, with interest at the rate of 10 per cent, per annum, payable semi-annually, drawn by one Wm, E. Chipley, to the order of E. P. Halstead, trustee, and by him endorsed.

<p>1. By the 18th Rule of this court all petitions for mandamus are required to be presented to a judge in Special Term or in Chambers when the case can be afterwards certified to the General Term.</p> <p>2. In applications for mandamus the rule to show cause why the writ should issue is not grantable as of course; the court in the exercise of its discretion will refuse the preliminary order where the petition itself shows that further proceedings would be a waste of time and would ultimately prove futile; especially will this be the case where the grounds upon which the respondent refuses to act in the manner required by the petitioner are set forth in the petition, and appear to the court sufficient to justifiy his refusal.</p> <p>3. Before this court will award a mandamus against an executive officer the petition must disclose: 1. That the party applying has a clear legal right to the relief he claims, and that he cannot obtain it by any other proceeding; 2. That there exists a clear legal duty on the part of the official against whom the right is asked, which he refuses to perform ; 3. That the duty which is thus claimed and imposed is one ministerial in its character and in no degree discretionary.</p> <p>4. The attorney and counsel of the party in interest cannot act as the relator in an application for mandamus ; the action must be brought in tile name of the owner of the thing claimed, who alone can be recognized as the claimant.</p> <p>5. A party who has only a partial interest in the amount claimed has no authority, to the exclusion of all other claimants similarly circumstanced, to use the name of the United States in an application to the court to dispose of the whole amount.</p> <p>•3. The question whether an executive officer of the Government shall revise the action of his predecessor is one addressed to his discretion, and cannot be interfered with by this court by mandamus.</p>

The bill in this cause was filed in April, 1880. It alleges-that in December, 1873, Samuel Strong had filed a bill against John A. Barbour and a certain Dodge and Darneiller for a discovery and account, and to recover a sum of money which the plaintiff alleged was due to him by the defendant-as his agents. In February, 1876, a decree was passed ordering that the defendants should pay to the complainant the sum of $2,115.92, with costs.

The complainant, a judgment creditor of the defendant Krause, filed the bill as such in this case, to set aside an alleged voluntary and fraudulent conveyance of real estate, made by Krause and wife, to defendant Michael Joachim? April 18, 1881, and recorded May 10, 1881. The deed named the consideration as $3,500 and acknowledged the receipt thereof.