Volume 15 — District of Columbia Reports

<p>Under the Statute ol Limitations in force in this District (Md. Act of 1715-eh. 23, sec. 2) the limitation begins to run on the day after the cause of action accrues.</p>

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

<p>1. Yerbal admissions ought to be received with great caution; the evidence consisting as it does in the mere repetition of oral statements, is subject to much imperfection and mistake, the party himself either being misinformed, or not having clearly expressed his own meaning, or the witness having misunderstood him. It frequently happens also that the witness, by unintentionally altering a few expressions really used, gives an effect to the statement completely at variance with what the party actually did say. So held in a case where the court, citing the above from 1 Greenl. Ev., £ 200, refused to disturb a written contract by evidence of admissions casually made in a conversation held many years before the date of the witness' testimony.</p> <p>2. The Statute of Limitations i» a good plea in bar of a suit against the representatives of a deceased partner for an account, if there have been no dealings within three years before the filing of the bill, and no admission» on the part of the testator or the representatives to take the case out of the statute.</p> <p>3. The moment the partnership ceases, the partners beeome tenants in common of the partnership property.</p> <p>4. Where an action of account would lie at law, and instead thereof a resort is had to a bill in equity, the Statute of Limitations is just as imperative as it is at law.*</p>

•STATEMENT OF THE CASE. This was a hill in equity filed against Greorge S, Wood, administrator of the estate of Kate Wood Jones and Lucy E. De Hart, heir at law of, and administratrix upon estate of, Daniel S. Jones, who was the husband of said Kate Wood Jones. It avers tbe incorporation of Tbe Washington Beneficial Endowment Association under general act of Congress.

<p>1. It is not in the power oí a creditor to divide up his claim without the consent of th.e debtor, and apportion it out so as to give each of the assignees a right to sue him. If the latter chooses he may disregard all such partial assignments and pay the money to the original creditor.</p> <p>2. A present executed assignment of part of a claim bears interest if the claim also bears interest, but it is otherwise where the assignment is intended to be executory only.</p>

<p>Application for a writ of Habeas Corpus.</p> <p>The Case is stated in tbe opinion.</p>

<p>The Case is stated'in tbe opinion,</p>

<p>Where property has been attached under a writ of attachment regularly issued on the ground that the defendant evades the service of ordinary process, judgment of condemnation should be rendered, although it appear that service of process was afterwards obtained on the same day, unless the defendant obtain an order quashing the writ, or supersede it with surety as provided by the statute (R. S. D. C., §§782-786.)</p>

<p>1. Where a cause is referred to referees by stipulation of counsel, the provisions of the stipulation, in regard to objections which may be taken by the parties to the award, will control the court in examining the award.</p> <p>2. Where by such a stipulation it was provided that either party shall have thirty days after notice of the filing of the award, within which to file “motions as respects findings of fact, or rulings upon questions of law, or upon the admission or rejection of testimony as might have been made if the case had been tried by a jury and a verdict rendered ” : It was held, that this language included all of the necessary or appropriate methods of reaching such errors of law, and therefore the method adopted by filing exceptions to the award was appropriate and sufficient if filed within the thirty days.</p>

<p>Where the constitution of a building association required the stockholders to pay their dues upon their stock at regular stated meetings, payments not made at such meetings are not valid payments to bind the association in case of the embezzlement of such moneys by the officer so receiving them.</p>

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

<p>1. A preliminaiy examination and discharge of the assured toy an examining magistrate is such an ending of the proceedings as will support an action for malicious prosecution, although the accused was afterward indicted by the grand jury for the same alleged offence after the bringing of the civil action.</p> <p>2. After his examination and discharge by the Police Court the accused brought a civil action against the prosecutor to recover damages for malicious prosecution. Pending that action the grand jury indicted the accused for the same alleged offence, and on trial he was acquitted. The civil action then coming on for trial, the plaintiff, against the objection of the defendant, offered in evidence the record of the indictment and acquittal which was admitted by the court. Held, Error, because there was no evidence that the defendant had promoted or originated the proceeding by indictment. Had that been shown it would have been admissible for the purpose of proving malice. The fact that his name was on the back of the indictment was not of itself any proof of malice.</p> <p>3. On a trial for malicious prosecution the indictment is res inter alios so far as concerns the matter of fact which it goes to establish. It is evidence of the fact of a prosecution and of the fact of an acquittal, but as between the plaintiff and defendant it does not determine the guilt or innocence of the accused.</p> <p>4. It is for the jury to determine the facts, but it is for the court to say whether those facts constitute want of probable cause.</p> <p>5. It seems, per James, J., that the discharge by the examining magistrate is prima facie evidence of want of probable cause.</p>

<p>1. Since the decision of the Supreme Court of the United States in Barnes rs. The District, 91 U. S., 540, the liability of the District for an accident, happening by reason of any neglect of duty in the control, management, custody and care of the streets, is no longer an open question in this court. Nor have the modifications which have been made in respect of the administration of the city, and of the mode of collecting taxes, at all changed the principles of liability established by that case.</p> <p>2. Counsel for defendant, in his address to the jury, admitted that, under the instructions of the court previously granted, the only question for the jury to consider was that of damages. He afterwards excepted to the' charge of the court on the ground that it confined the jury to that question. Held, That it was not competent for him, in the face of his formal admission for the purposes of the cause, to take exception to the charge of the court for thus limiting the mind of the jury to that which he himself, as the representative of the defendant, admitted was the only subject matter for iheir consideration.</p> <p>8. The law requires all areas in the city of Washington to be protected by-iron or stone railing, with an allowance of four feet for an opening or entrance. The property in question had an area along its entire front, but it was protected by no railing of any sort. The plaintiff slipped and fell into the area, injuring himself seriously. On an action for damages it was held, no defence that the plaintiff fell into the area at a point where the opening or entrance would have been had a railing been erected.</p>

These were three suits brought to recover monthly instalments of rent of a house and furniture under a written lease. The defendant paid rent for the time he occupied the premises from November 10,1883, until he vacated them, February 18, 1884.

This was an action against the defendants as indorsers of the following paper: “$1,200. Washington, D. 0., Sept. 27, 1881. “ Thirty days after date I promise to pay to the order of Prank Hume twelve hundred dollars, value received, with 8 per cent, interest until paid. Payable at 2d National Bank.

<p>A railroad draw-bridge was erected across the Potomac river by a railroad company under authority of an act of Congress. The statute provided that the company should keep the bridge and draw in efficient working condition at all times. A schooner passing through the draw of the bridge so injured it that it was immediately closed by the company and kept so for four days, during which time the repairs made necessary to the draw were prosecuted with all due diligence. By reason of the closing of the draw, a tug boat was detained and prevented from performing her regular business. Held, that she was entitled to recover damages for the detention.</p>

<p>1. The employees of a railroad company constitute the police of the train and the passenger, from the moment he enters the car, is entitled to look to them for proteetion in cases of assault growing out of the disorderly conduct of another passenger or passengers.</p> <p>2. When the agents of a railroad company are guilty of malicious or intentionally negligent conduct, so as to amount to a reckless disregard of the rights of passengers, a jury may award exemplary damages; but the court will interfere when such damages are grossly excessive.</p>

With, this case was heard the case of Fitch et al. vs. Iiecht, involving the same point. The Case is stated in the opinion.

<p>A testatrix bequeathed two hundred and eighty shares of stock in a gaslight company in trust to pay the dividends -‘without diminution of principal,” to his daughter for life. , The company having from its earnings doubled its original plant, issued, after the death of the testatrix, additional shares of stock representing this increase in the capital; and these shares it divided among the stockholders in proportion to the original stock owned by them. The cestui que trust claimed' these additional shares absolutely on the ground that they represented the profits or earnings of the original shares and were in effect dividends. Held:</p> <p>1. A corporation has a right, within reasonable grounds and in good faith to reserve and apply the profits to the increase of the- plant, and the stockholders hold their stock subject to this right.</p> <p>2. That certificates of stock are simply the representative of the interest which the stockholder has in the capital of the corporation. Before the issue, therefore, of this new stock, the stockholder held precisely the same interest in the increased plant, and in the capital that he held afterwards. The new shares were but a new representation of that interest, and not an increase of it. A dividend is something with which the corporation parts, but they parted with nothing in issuing this stock but an evidence of an ownership already existing. Being, therefore, in no sense, dividends, the duty of the trustee was to hold them, together with the original shares, for the benefit of the remainderman, paying only the dividends upon the whole to the life legatee. •</p>

<p>STATEMENT OE THE CASE,</p> <p>Tbis was an action brought to recover damages for personal injuries resulting to the plaintiff from the alleged wrongful and negligent act of the defendant, in suddenly and without notice starting and putting in motion one of its freight trains over which the plaintiff was attempting to cross.</p> <p>On the morning of November 2d, 1881, the plaintiff, in going to the place of his employment was delayed by the blocking of the street with the defendant's train, which was standing upon the track along the street he desired to cross. He waited for fifteen or twenty minutes, expecting the train to pass on, but finding that it did not move, and being in a hurry to get to his work, he determined to cross over between the cars. Just as he made the attempt, and was in the act of crossing,, and without any notice having been given by ringing the bell or blowing the whistle, the train was started, the coupling tightened, and his foot was caught between the bumpers of two of the freight cars and badly crushed.</p>

<p>1. Every bill of exceptions must be complete, either by setting out the facts on which it is founded, or by referring to some other bill of exceptions which distinctly enumerates them ; affirming Oliver vs. Cameron, MaeA. ' & Mackey, 337.</p> <p>3. It is error to exclude from the jury parol evidence tending to show that for the express purpose of concealing the magnitude of the undertaking a blank was left in the contract, and was filled up without the consent of the party sought to be charged, so as to make the contract a larger one than the latter had in contemplation at the time of signing.</p> <p>3. Evidence that the paper was in blank at the time of signing is evidence tending to prove the above facts.</p> <p>4. The rule which forbids a resort to parol evidence to vary a contract does not forbid such resort to supply omissions, or to supply blanks.</p>

<p>1. In a joint action by husband and wife for injuries received by the wife, recovery cannot be had for the loss of the wife’s services to the husband; nor for the loss of the wife’s society, nor for the expenses of her cure, nor for attendance while sick; these belong to the husband alone.</p> <p>3. Hence an unqualified instruction which substantially permits the jury to give damages for injuries to the physical strength of the wife which disabled her from performing her necessary affairs and business will be erroneous, when it appears that the jury has been allowed to take into consideration testimony as to the wife’s disability to pursue her business, the earnings of which, in law, belong to the husband.</p>

This was an action of replevin brought against Charles E. Henry, the marshal of the District, who had taken in execution certain property, consisting of merchandise of the value of about $6,000. The plaintiff claimed the possession as assignee, under a deed of assignment for the benefit of creditors, with preferences, from one Hart L. Strasburger.

<p>The fact that a claim against a deceased debtor was duly proved and passed by the Orphans’ Court; and the further fact that the administrator in his account retained a sum of money with the assent of the court to pay several enumerated claims, among which was the claim of the plaintiff, and verified his administration account, are not together sufficient to remove the bar of the Statute of Limitations, when pleaded by the administrator in a suit afterwards brought by the plaintiff upon the claim.</p>

Bill in equity to set aside a deed. The bill sets forth that Dennis Blaney died intestate, and seized and possessed of certain real estate, and leaving surviving him his widow, Johanna, and his two sisters, one of whom is the plaintiff, and the other the defendant, Bridget Dpherty,his only heirs-at-law; that the said Johanna (in pursuance of an agreement among the parties interested for the settlement of the decedent’s estate), joined with plaintiff in the execution of a…

The bill in this case was originally filed by B. U. Keyser, as receiver of tbe German American National Bank, to set aside a certain deed of trust in favor of W. P. Jenks, wbicb was alleged to bave been fraudulently made and in derogation of rights of the bank of which complainant was, at its failure, appointed receiver.

<p>Where the undertaking in an appeal bond is absolute, there is no necessity in declaring on the bond for failure to prosecute the appeal with effect, to aver that any request or demand was made upon the defendants to pay the damages and costs, and a demurrer upon that ground is frivolous.</p>

Dennis Looney was largely indebted to tbe complainant, Dennis Qnill, wbicb indebtedness was secured by deed of trust on part of tbe real estate of Dennis Looney. Quill undertoot to foreclose tbe deed, and a long litigation ensued, beginning in February, 1882, and ending in 1884.

Bill in equity by a surety against the administrator of his co-surety to enforce contribution.

<p>1. By the charters of the Washington & Georgetown and of the Metropolitan street railroad companies they are required to keep their tracks “for the space of two feet beyond the outer rail thereof, and also the space between the tracks at all times well paved and in good order.” Held, that this language involved the obligation to construct a pavement where one did not exist onthe line of their roads.</p> <p>2. The authorities of the District have the right to prescribe the material of which this pavement shall be composed, and if a pavement has already been constructed, they may direct it to be removed and a pavement of a different character substituted.</p> <p>3. Whenever the District authorities direct the grade oO the the street or character o£ the pavement to be changed, it becomes the duty of the com ■ panies to conform their roads to the change.</p> <p>4. And this obligation does not depend upon notice to the companies, it is incurred the moment they have knowledge thut the change is begun or contemplated.</p> <p>5. The District, on the failure of the companies to do this work, did the work itself, and thereupon issued certificates of indebtedness for the cost thereof against the roads. These certificates it sold to third parties. Held, that the District had no authority to issue such certificates, and the purchase of them by third parties gave the latter no right of action against the companies, nor did it discharge the liability of the companies to the District. Whether the District would be responsible to the purchasers for the money paid for these certificates is a question which cannot concern the companies.</p> <p>6. The District is responsible for the condition of its streets, and in this respect stands in the relation of surety for the performance by the companies of their obligation to keep their roads in good condition; hence, on default being made, it may at once do the work and sue in iw<.im/in 1 for the cost on the same theory that a surety, who discharges the defaulted obligation of his principal, does so upon his implied request and upon his implied promise to indemnify.</p>

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

Action at law to recover for work done during tbe years under a number of written contracts executed by the Board of Public Works of the District of Columbia, and also for work claimed to have been done outside of these contracts, but arising therefrom, which work was performed under written or verbal orders from members of the Board of Public Works or some of its officers.

STATEMENT 0E THE CASE. Appeal from an order striking from the files a petition for divorce on the ground of the non-residence of the petitioner. This was a proceeding for divorce, instituted by the husband, who states in his petition that he is a resident of Baltimore, Maryland, and that the defendant has been a resident of the city of Washington in this District for nearly two years.

<p>Sections 794 and 795 of Revised Statutes of the District of Columbia, which enable a debtor arrested, on a ca. sa. to contest the creditor’s right to hold him to bail, summarily, by means of a habeas corpus and a jury trial of issues to be framed upon the question of his right to be discharged, do not contemplate that the debtor shall be admitted to bail, between the habeas coipns and the trial authorized to be hjid on'the issues framed; and a recognizance taken oil bringing the defendant into court on the habeas corpus, conditioned for his appearance at a future day for the trial of the issues, is void against the sureties.</p>

Letters patent No. 207,738 were granted to the appellants on September 3, 1878, which contained but a single combination claim. On March 30, 1880, they filed an application for a patent for certain matter shown and described, but not claimed, in said letters patent, and embracing the claims involved in this appeal. On November 10, 1880, they filed an application for a re-issue of said letters patent, embracing substantially the same claims.

<p>1. In a suit in equity by the beneficiary of a trust, to enforce the trust and subject the land described in the trust deeds to sale for the payment of moneys loaned by him on such security, defendants, while admitting that the debt is still due and unpaid, cannot be heard to say that it has been satisfied by a prior sale of the property to complainant under a former suit to enforce the trust, and that he is now estopped to demand a second sale of the property, and at the same time aver that such prior sale was a nullity and was so decreed on a suit brought to set aside such sale, and that, under such sale and annulment thereof by such decree, complainant took nothing. A defence which, in the same breath, asserts that complainant acquired no title under the first sale, and that, by virtue of that sale, he is estopped from selling again, is a defence which a court of equity cannot entertain.</p> <p>2. Subsequently to the execution of the deeds of trust securing complainant’s debt, a deed was made to trustees to secure a third person for money loaned by her to the grantor of land, including the same lot and a lot adjoining thereto, constituting such third person a senior encumbrancer of such additional lot; while by virtue of the fact that the buildings on the property in the deeds of trust made in favor of complainant extended over and were partially erected on such additional lot, constituting complainant a junior encumbrancer thereon. Held, that the facts, that the whole property had been held in general ownership, and that to sever the lots would be destructive of the value of both of them, constitute a case where a court of equity should order all the property to be sold together, reserving to the beneficiary of the trust deed of the adjoining lot, such portion of the proceeds of the sale as will be in proportion to the value of her interest in such additional lot.</p> <p>3. Wherever property subjected to a lien has been brought within the domain of a court of equity and a receiver of that property is appointed, whatever rents and profits the receiver gets into his hands will be dedicated along with the corpus of the funds to the satisfaction of the lien after paying taxes, insurance and like burdens.</p>

George D. Benjamin, whilst occupying the position of superintendent or foreman in the service of the United States, under O. E. Babcock, colonel of engineers in charge of the public buildings and grounds in the city of Washington, was appointed, by the Secretary of War, disbursing agent of the United States, for disbursing the money appropriated by Congress for the construction of the east wing of the new State, War and Navy Department building; and his compensation was…

<p>Informations for selling without license.</p> <p>The Case is stated in the opinion.</p>

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

Benjamin F. Beveridge, by the death of his mother, became entitled to a one-third interest in a piece of real estate . situated in the District of Columbia. The defendant Loughery, held an unsatisfied judgment against Beveridge, and ■the complainant Horsey another, but previous in date to that of Loughery. Loughery levied upon Beveridge’s interest,in the property and caused it to be sold by the marshal in satisfaction of his judgment.

<p>Where the landlord lets the tenant into possession, and the tenant after-wards surrenders the property to a stranger, the latter, on ejectment brought by the landlord, can only defend by showing title in himself.</p>

These eases were argued at the same time and decided together upon the following state of facts: The plaintiff, a body corporate under the general incorporation act in force in the District of Columbia, acquired the title in fee simple to half a square of ground in the city of Washington; erected thereon a large and commodious market building, containing numerous stalls adapted to the various kinds of business usually conducted in a public market, and sold, at public…

Petition for a writ of mandamus against Thomas F. Bayard, Secretary of State, and heard in the General Term in the first instance. The Case is stated in the opinion.

<p>1. The Organic Act of 1870, R. S. D. C., while it did not give to the legislative assembly the larger powers of general legislation which Congress had itself received from the Constitution, nevertheless bestowed upon that body, in express terms, every power of municipal legislation which could be given to a municipality, and particularly the power of taxation, and the implied or included power of providing measures by which taxes may be enforced and collected.</p> <p>2. It is well settled that a general power of taxation may be exercised to tax vocations, and to require returns and test their accuracy by inspections.</p> <p>3. Ordinances enacted by a municipality, under its implied power to enact such, must be reasonable ; but where its power over a given subject is derived from an express legislative grant, the court can only construe the extent of the grant; it has nothing to do with the reasonableness of an ordinance enacted by virtue of it.</p> <p>4. The provisions of the act of assembly of August 23, 1871, as amended by the act of June 20, 1872, imposing a tax on the commissions of real estate agents and requiring semi-annual returns thereof, is not in excess of the power granted to the legislative assembly by the organic act of 1870 ; nor does the provision requiring the register, when, in his opinion, the returns are underestimated, to examine the books of the person making such returns, añect its validity ; even if it be assumed that such provision is unauthorized.</p> <p>5. The bond required by the same act may be conditioned only upon the performance by the obligor of the duties required of him by law ; and a bond with additional conditions extorted colore officii, by withholding a license to carry on the obligor’s business until he executes it, cannot be enforced as to such additional conditions, although it will be valid as to the others.</p>

<p>1. The doctrine which expands an agency by reason of the acts and dealings of the parties has no application whatsoever to the official acts of a public officer. Whoever deals with him is charged with knowledge of the law limiting his power.</p> <p>3. The collector of taxes of the District of Columbia has no authority under the law to receive checks in payment of taxes.</p> <p>8. A taxpayer delivered his check in payment of taxes to the collector. That officer delayed for several days to present it to the bank for payment, during which time the bank failed and the check was dishonored. Held, that the reception of the check by the collector was not a payment of the tax, as the check was subsequently dishonored. That for the purpose of presenting it to the bank for payment the collector was-the agent of the tax-payer, and the loss occasioned by the delay must therefore fall upon the latter.</p> <p>4. Cox, J., however, limits his concurrence in the judgment to the fact of • the insolvency of the bank at the time of the reception of the check by the collector, and the want of satisfactory proof that it would have been paid even if there had been no delay in its presentation.</p>

This was an appeal from a judgment for defendant in an action of ejectment brought to recover an undivided moiety of two lots of ground in Washington City, which the plaintiff claimed in fee simple under the following will of his father Joseph Thaw: Will. “ I, Joseph Thaw, of the city of Washington, in the District of Columbia, do, this twenty-sixth day of February in the year of our Lord one thousand eight hundred and forty, make and publish this my last will and testament,…

Hearing in General Term in the first instance. STATEMENT 0E THE CASE. This was a proceeding to require the defendant to comply with his contract of purchase of a lot in square 811 of this city by paying $1,000, the balance of the purchase money, therefor.

<p>Equity will not interfere when the invalidity of a tax is perfectly apparent on the face of the proceeding, unless circumstances exist touching the levy-of the tax which would render its enforcement oppressive, of would irreparably injure the party, or when the allowing it to remain until enforced, or attempted to be enforced, would throw a cloud upon the title.</p> <p>So, where the record, as far as preserved, shows the tax to be valid, but the record of the intermediate proceedings had been lost or mislaid, chancery, on the allegation of their materiality, will afford relief by directing a discovery from, the defendants.</p> <p>Where the foundation is laid for a discovery in aid of a legal right, a court of equity will not only grant the discovery, but will proceed upon the discovery to administer relief.</p>

<p>1. A vendor of real estate, selling in good faith, is not responsible for the goodness of his title beyond the covenants in his deed, and where there has been no eviction by paramount title, equity will refuse relief. The remedy of the vendee is at law on the covenants.</p> <p>2. A voluntary surrender of possession is not equivalent to an eviction by title paramount.</p>

<p>1. Wherever in a deed there is a repugnant boundary, if there be enough in the other boundaries and' residue of the description to show a repugnancy, to correct it, and to ascertain the true location of the land, the court, out of the four corners of the instrument itself, will make the construction by rejecting the incongruous portion of the description or reconciling it with the true description so as to make the deed operative.</p> <p>2. A creditor having notice of a deed which contains in itself the elements of , correction cannot put himself upon the ground of a bona fide creditor without notice of a title not recorded.</p>

<p>1. The act of Congress incorporating the Washington Market Company authorized it to use and occupy certain real estate, belonging to the United States and situated in the District of Columbia, for ninety-nine years unless its estate should be sooner determined, in the manner provided in the act. The same act also declared that the property of the corporation “ shall be subject to assessment and taxation for all District and municipal purposes,”, and that the ninety-nine year lease “ shall be taken and considered as a determinable fee.” HeM, that for the purposes of assessment and taxation the company’s ownership of this property stood on the same footing with the ownership in fee of other property-holders.</p> <p>2. A court of equity will not enjoin against the collection of an excessive tax where there is a remedy at law or remedy specially provided by statute. ' Nor will it, in any event, relieve against its collection, when the complainant has not paid or tendered payment of the amounts admitted to be due.</p>

<p>1. The first and cardinal rule in the interpretation of a statute is to look to the statute itself, its meaning, scope and object; and if, upon the face of it, the intention of the legislature can be gathered, those incidental rules which are mere aids to be invoked where the meaning is clouded, are not to be regarded.</p> <p>2. The joint resolution of Congress of March 3, 1863, regulating the construction of telegraph lines in theDistrict of Columbia, does not limit or control in any way the act of Congress of July 24, 1866, authorizing the extension of telegraph lines over the postal roads of the United States. The provisions of the latter act apply to and include the District of Columbia to the same extent that they do any other portion of the United States.</p> <p>3. A public nuisance cannot arise from the exercise of a right granted by authority of law; bat if the grant be not exercised with a duo regard to the rights of the citizen, a private nuisance may be created.</p> <p>4. Whatever the rule of law may be in other jurisdictions, the law as declared by the Supreme Court of the United States must govern and control this court.</p> <p>5. On an application for injunctive relief against an alleged private nuisanco growing out of the exercise of a right granted by the legislature, a court of chancery will consider all the circumstances and equities of the case, and where, as a consequence of its interference, the hardship upon one side would be immeasurably greater than the injuries sustained by the other it will not interpose the extraordinary remedy of injunction, but will leave the complainant to his action at law.</p> <p>6. Facts stated which the court does not consider make such a case of private nuisance as entitle the complainants to a decree enjoining a telegraph company from erecting poles and stringing wires thereon along a public street and in front of complainants’ property.</p>

<p>1. It is error to charge the jury that the accused must have been in imminent peril of his life or of some great bodily harm, in order to support the defence of justifiable homicide, nor will the error be cured by the fact that the court, at the close of the charge^ in a colloquy with counsel, assents to a suggested modification of its instruction on this point, when it does not appear that the jury’s attention was directly called to the matter.</p> <p>2. Where a charge of great length is so delivered as to render it susceptible of different intendments in the minds of a jury, some of which may prove fatal to the accused, a new trial will be granted, although, taking the whole charge together, the law was stated correctly.</p> <p>8. It is error to charge the jury that, if they have any reasonable doubt about the guilt of the defendant or any doubt about his guilt, they may take into consideration evidence of his good character, as that is calculated to leave the jury with the impression that only in doubtful cases can evidence of good character be considered. Evidence of good character is the eye glass through which the jury are to look at the whole case ; it does not authorize them to overrule the truth or to disregard the force of other evidence, but it is to be considered and weighed with all the testimony in the case.</p>

<p>Appeal from a decree of the Special Term.</p> <p>The Case is stated in the opinion.</p>

<p>1. Where judgment is rendered by default for want of a plea the motion to strike it out may be granted under the 72d rule of court.</p> <p>2. But where the judgment is rendered for failure to comply with the 73d rule, the motion to vacate it must be under the 90th rule.</p> <p>3. An order vacating a judgment by default under the 72d rule is not appealable.</p>

<p>1. A prayer not founded upon any evidence in the case should be refused.</p> <p>2. The barbarous manner in which a homicide was committed does not of itself furnish any basis for the defence of insanity.</p> <p>8, An instruction to the jury which rests upon the idea that there is a grade of insanity not sufficient to acquit a party of manslaughter, and yet sufficient to acquit him of murder, should be refused; the court does not recognize such a distinction in the forms of insanity.</p> <p>4. On a motion for a new trial it is no ground of objection to a person as a juror that the law exempts him from jury service; he is not disqualified thereby, and, it being a personal privilege, he may waive it.</p>

The declaration consisted of the common counts with a bill of particulars annexed, and with this was filed the following affidavit: “State ok New York, \ City & County of Neto York, j “ Before me, a notary public, duly commissioned and authorized to administer oaths, personally appeared Edwin Bouton, who, being duly sworn according to law upon his oath, says that he is a member of the firm of Connick & Bouton, and is one of the persons named as plaintiff in the annexed…

<p>Indictment and conviction of murder.</p> <p>Tbe Case is stated in tbe opinion.</p>

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

<p>1. The object of a special traverse is to accompany the direct denial of plaintiff's averment with an explanation of the ground on which that denial is based.</p> <p>2. An occupation of Indian lands for grazing purposes only, with the consent of the Indians and in subordination to and recognition of their title, is not forbidden by ££ 2117 and 2118 of the Revised Statutes.</p>

STATEMENT 0E THE CASE. The relator having been, by the Hon. William C. Whitney, Secretary of the Navy, ordered under arrest and to appear before a court martial for trial on certain charges and specifications, applied to this court for a writ of prohibition to arrest the proceedings of the court martial, on the ground of want of jurisdiction in that tribunal to try and determine the matters and things charged against him.

<p>1. When the question is by which of several systems or laws contract rights are to be determined, the rule is that whatever relates merely to the remedy and constitutes part of the procedure, is determined by the lex f rjri, but whatever goes to the substance of the obligation and affects the rights of the parties as growing out of the contract itself or inhering in it or attaching to it, is governed by the lex loci comtraclus.</p> <p>2. A mortgage was executed in New York; the mortgage debt was presumed to be payable there since no other place of payment was designated.</p> <p>3. As by the law of New York an assignee of an equity of redemption by a deed which he accepts, containing a covenant on his part to assume and pay the mortgage debt, but which deed is not sealed nor signed by him, nor intended so to be, is liable to suit for the debt by the mortgagee, he must likewise be held liable here ; but the questions as to the form of the action, the time within which it must be brought, as well as the dignity or grade of the contract, i. e., whether a specialty or in parol, must be decided by the law of this forum.</p> <p>4. At common law, and it is so in this District, the acceptance of such a deed creates no specialty obligation on the part of the grantee, although he may be held liable on it in assumpsit as on a simple contract.</p> <p>B. When the administrator of the mortgagee in such a deed brings suit upon it in this District to recover from the grantee’s executrix a portion of the mortgage debt remaining unpaid after the foreclosure of the mortgage, the action must be in assumpsit, and the Statute of Limitations in force here is a bar if the suit be brought more than three years after the cause of action accrued.</p>

<p>Before a court of chancery will render its aid to quiet title to real estate, the plaintiff must have been in possession and the possession must have been threatened or assailed in some way, and if the title has been disputed it must have been vindicated by repeated actions at law; so if he seeks to have a cloud removed he must also have been in possession and the cloud must be with respect to something connected with his own title.</p>

<p>1. There are no absolute rules for determining the question of the implied repeal of a statute by a later statute. The question in every case is one of intention.</p> <p>2. The act of Congress of June 11, 1878, establishing a system of government for the District of Columbia, is to be regarded as an organic act intended to dispose of the whole question of a government for this District.</p> <p>8. A general power given to the possessors and executives of all the powers of government must be intended to be complete and comprehensive, and is not to be cut down by referring to antecedent statutes making special provisions for a part of that government.</p> <p>4. The organic act of 1878 which gave to the Commissiohers of the District of Columbia the general power of removal from office operated to repeal the provisions of the act of 1861, forbidding the removal from the police force of any person except upon written charges preferred against him.</p>

This was an action of detinue brought to recover certain bonds claimed to have been deposited with the defendant in August, 1879.