Volume 16 — District of Columbia Reports

Motion by defendant for new trial on exceptions. The Case is stated in the opinion. The rights of a railroad company must he construed as to least impair the rights of the public. Held: that the boy could not recover. Chicago, etc., R. Co. vs. Smith, 46 Mich., 504. See, also, Moore vs. Pa. R. R. Co., 99 Pa. St., 301. The necessity for flagmen or other precautions was not a question for the jury. Dyer vs. Erie R. Co., 71 N. Y., 228; Beisiegel vs. N. Y. Cent.

Exception to an instruction of the court directing a verdict for defendant upon the case as stated by counsel for plaintiff in his opening to the jury. STATEMENT OE THE CASE. This was an action brought to recover damages sustained by the plaintiff in the loss of his arm through the alleged negligence of the defendant, upon one of whose trains the plaintiff was a passenger.

<p>In an action against the wife alone, upon a contract made in relation to her separate estate, the husband is incapacitated to testify for or against her. Sections 876, 877 of the Revised Statutes of the District have no application to such a case.</p>

Motion by defendants for a new trial upon a bill of exceptions and case stated. statement oe the case. Held: that the defendant was not liable in trespass. Grinham vs. Willey, 4 H. & N., 496. See Gosden vs. Elphick, 4 Exch., 445. The distinction here pointed out is recognized in all the cases.

<p>Where one has judgment for his debts and costs, including witness fees, he is entitled to set oS the whole amount in satisfaction of a judgment held by the defendant against him, excepting only the taxable attorney’s fees.</p>

Motions for new trials on exceptions taken by plaintiffs and defendant in actions to recover damages for private nuisance in which plaintiffs recovered judgments. The Case is stated in the opinion. That is a nuisance which annoys and disturbs one in the possession of his property, rendering its ordinary use or occupation physically uncomfortable to him.

Cross Appeals from a judgment sustaining a demurrer to tbe replication and giving plaintiff leave to amend, in an action upon a promissory note. The Case is stated in tbe opinion. Held: in a case undistinguishable in principle from this, that such parties could not be joined, and judgment was rendered for the defendant because of such misjoinder. State vs. Banks, 48 Md., 513. 3. The misjoinder off parties cannot be cured by amendment.

Hearing on habeas corpus. The Case is stated in the opinion. We maintain that the action of the chief justice at chambers was erroneous, and that this court should discharge the writ of habeas corpus and remand the prisoners to the custody from which the writ took them. The court-martial was duly and legally organized, and proceeded with all due and established formality in the trial of the petitioners.

<p>Action of Ejectment. Motion for new trial on exceptions and case.</p> <p>The Case is stated in the opinion.</p> <p>The case presented in the record raises a single question namely: Is the evidence insufficient to sustain the verdict?</p> <p>The province of this court in passing upon the sufficiency of evidence was determined, after careful consideration, in the recent case of Stewart vs. Elliot, 2 Mackey, 307.</p> <p>“ Cohabitation alone, proved between parties as man and wife, is sufficient to raise the presumption of legal marriage when the parties have been long dead; and any declarations made by them, as to their being or not being married, may be used to strengthen or weaken this presumption.” Copes vs. Pearce, 7 Grill, 247; Jones vs. Jones, 36 Md., 457; Sellman vs. Bowen, 8 Grill & J., 52.</p> <p>“The rule of evidence that, in questions of pedigree, the declarations of aged and deceased members of the family may be proved and given in evidence has not been controverted.” Elliott vs. Peirsol, 1 Pet., 328.</p> <p>“It is not every statement or tradition in a family that, can be admitted as evidence. The traditon must be from persons having such a connection with the party to whom it relates that it is natural and likely, from their domestic habits and connections, they are speaking the truth; and that they could not be mistaken.” Stein vs. /Bowman, 13 Pet., 209. <</p> <p>“ Marriage may also be proved in civil cases, other than actions for seduction, by reputation, declarations and conduct of the- parties, and othqrH5rrcumstances usually accompanying that ’relatioEp^» if Grreenl. Ev., § 462.</p> <p>“ Thd^aw will presume every couple who dwell together as man anfPwife to be prima facie such in fact. A living together creates, among those who know them, a repute that they are such; this repute becomes competent when connected, as it almost always is, with other circumstances. Cohabitation and repute are adequate in questions of legitimacy or ejectment.” 1 Bish. Mar. & Div., secs. 432, 434, 438, 443, 457.</p> <p>A plaintiff in ejectment who claims as a collateral heir to the party last lawfully seised, must show the descent of himself and said party “from some common ancestor, together with the extinction of all those lines of descent which would claim before him. This is done by proving the marriages, births and deaths, etc., and the identity of the persons.” Abb. Tr. Ev., 85; 2 Greenl. Ev., § 308; Anderson vs. Smith, 2 Mackey, 278; Sprigg vs. Moale, 28 Md., 497.</p> <p>All the necessary facts of relationship must be proven by the plaintiff affirmatively, through a common ancestor, and that no other descendant from the same ancestor exists.</p> <p>Nothing is taken for granted, or is to be presumed; to establish the plaintiff's right he must prove the marriage and death of the common grandparents. Ahb. Tr. Ev. 85; 2 Greenl. Ev., § 354; Thomp. Dig., 180; Richards vs. Richards, 15 East, 294, note; Blackburn vs. Crawfords, 3 Wall., 175.</p> <p>All the facts in the case are considered on a motion for a new trial for insufficient evidence, and the court has discretionary power in acting upon it. Mac A. & Mack., 13, 23; 2 Mac A., 504.</p> <p>There is no competent proof of the existence of any such custom of marriage as the plaintiff describes, by jumping over a broomstick. Such custom, if it did exist, must be established by proof, as any general fact, and not by hearsay evidence. 2 Greenl. Ev., §§ 243-252; Abb. Tr. Ev., 85 ; 1 Bish. Mar. & Div., § 530.</p> <p>Slaves could not contract marriage. 1 Bish. Mar. & Div., §§ 156-158.</p> <p>The Enabling Acts (R. S. D. C., § 724; 1 Rich. Supplement, p. 409) do not aid the plaintiff in this case.</p> <p>The declarations of plaintiff's grandparents and his mother are not sufficient of themselves to establish their relationship to Charles Brooks. And outside of their alleged declarations, there is no evidence sufficient to establish the relation of plaintiff to said decedent. Anderson vs. Smith, 2 Mackey, 281; Blackburn vs. Crawfords, 3 Wall., 175; Sedg. & Wait. Tr. Tit., § 814; Abb. Tr. Ev., 92.</p> <p>It may well be doubted, in the light of the other proof, that Aunt Cizzy ever told the plaintiff anything, or whether, if she did, he states it correctly, after these many years; and the fact that Mrs. Green and Charles Brooks claimed to be cousins is not sufficient to prove heirship. Sprigg vs. Moale, 28 Md., 497; Abb. Tr. Ev., 101.</p> <p>The decedent himself declared his own relationship again and again, as did his wife. This was competent proof. AW Tr. Ev., 89, note 17.</p> <p>New trials are granted in actions for the trial of title to lands more readily than in other actions; and at common law judgment in ejectment was no bar to another trial. The States which have abolished the action of ejectment have given the defeated party in such cases one or more new trials, as of right. Sedg. & Wait, Tr. Tit., secs. 577, 579; Equator Min., etc., Co. vs. Hall, 106 U. S., 87; Jackson vs. Laird, 8 Johns., 489; Britton vs. Thornton, 112 U. S., 534.</p> <p>It is a matter of some doubt just what effect our statute abolishing fictions in the action of ejectment has upon the character of that action. R. S. D. C., sec. 809.</p> <p>In the case of Hogan vs. Kurtz, 94 U. S., 773, the Supreme Court holds that this statute does not abolish the action, “nor convert it into a writ of right.” Sedg. & Wait Tr. Tit., secs. 514, 520.</p> <p>Judgment upon a writ of right is final. Id., secs. 68,509.</p> <p>But in ejectment the judgment is no bar. Id., sec. 511.</p> <p>The plaintiff must recover upon the strength of his own title; and that must he proven affirmatively. No matter what the defendant’s right to possession is, unless the plaintiff proves a good title he cannot recover. Hogan vs. Kurtz, 94 U. S., 774; Sedg. & Wait Tr. Tit., sec. 800; Love vs. Simms, 9 Wheat., 515,</p> <p>An outstanding title in a third person is always a good defence in ejectment; and if it was true that Cizzy Brooks was the mother of Charles Brooks, then the title to these premises would be in her grandchildren, to the exclusion of plaintiff. Sedg. & Wait Tr. Tit., sec.-831.</p> <p>The statutes granting new trials in this class of cases are to be liberally construed. Chamberlin vs. McCarty, 63 111., 262; Myers vs. Phillips, 68 111., 269.</p> <p>Anderson vs. Smith, 2 Mackey, 219, was twice tried when this court sent it back for a third trial.</p>

<p>1, On a bill filed to set aside certain deeds made by a father to his eldest son in exclusion of three other children, there was no direct testimony of any undue iuiluence, persuasion or fraud; and the only ground for supposing it was the alleged undue preference, and the fact that at the date of the deeds the father was in more immediate intercourse with this son than with other members of the family, and that he had been in bad health during the early part of the transactions and was living at the residence of this son. Held, that all this was totally insufficient to authorize the court to treat the deeds as invalid on the ground of undue influence.</p> <p>2. Where the father advances money for the purchase of real estate and has the title taken in the name of his son, there is a very strong presumption that it is an advancement to the son, and unlesss rebutted by the clearest evidence the court will so treat it on a partition of the deceased father’s estate.</p> <p>8. While a son is acting in the capacity of agent for his father he will not be allowed to retain property purchased by him for his own benefit at a tax sale of his father’s property. But if it be done with the father’s assent it is otherwise.</p> <p>4. So, too, in the case of similar purchases at an execution sale, the son will not be allowed to take advantage of the confidential relation existing between him and his father, to buy in the latter’s property for his own benefit; but a court of equity will, in a settlement of the estate, charge the son in such cases as trustee, and order an accounting.</p>

Bill to compel tbe performance of a contract for the purchase of real estate. statement oe the case. Elizabeth R. Lamed, being seised in .1856 of a certain piece of real property in the District of Columbia and the subject of this suit, died, leaving the following will: “In the name of God, amen!

Bill in Equity, filed to obtain the discharge of certain property from the lien of a tax assessed against the same, to which defendant demurred.

<p>1. Where exception is taken to the admission or rejection of testimony the exception should state the ground of the objection.</p> <p>2. In an action for damages for personal injuries occasioned by reason of defendant’s negligence, the plaintiff having been compelled thereby to give up the practice of his profession, evidence of the plaintiff’s income as a physician, and of his eminence in his profession, is admissible and pertinent upon the question of damages.</p> <p>3. So, too, evidence of the present condition of plaintiff’s health, as compared with its condition prior to the injury, is admissible.</p> <p>4. So, too, evidence of physicians, giving their opinion of the probable permanency of the disorder suffered by plaintiff, as a result of the injury, is competent.</p> <p>5. It is competent to show by parol testimony that a letter addressed to one by name only was addressed to him in his representative capacity.</p> <p>6. A party is confined in his cross-examination to the subject-matters entered into in the examination-in-chief. If the fact sought to be brought out is important to be established, the witness may be called as his own at another stage of the case.</p> <p>7. Evidence tending to show the length of time that the cover intended for the man hole, into which plaintiff fell, had been in defendant’s possession and control before it had been put in place is competent, as going to elucidate the question of defendant’s negligence.</p> <p>8. The District of Columbia is responsible for the safe condition of its sidewalks ; and an action will lie against it to recover damages for injuries received in consequence of their imperfection, provided it be shown that the District had notice of the defect or that it was so notorious and conspicuous in its character that the authorities charged with the inspection of the streets would, in the proper performance of their duties, have known of it, in which case due notice or knowledge will be imputed to the District.</p> <p>9. In the matter of imputing notice the question also depends upon the appearance of the object causing the injury. If it is a large hole the authorities should know of it sooner than in the case of a small imperfection ; and so, if it be in a crowded thoroughfare, notice will be more easily imputed than in a sparsely settled, part of the city.</p> <p>10. Facts considered which the court holds sufficient to enable the jury to impute notice.</p> <p>11. Where the law requires that sidewalks shall not be broken without a permit from the municipal authorities, and it is shown that for a number of weeks the owner of the adjoining property had broken the sidewalk, to a greater or less degree, and there had been no interference by the authorities, the law will presume, until the contrary is shown, that a permit has been granted.</p> <p>IS. The question whether the verdict is excessive or not is more properly for the court below. This court will be averse to interfering, unless the damages are so shockingly excessive as to indicate that the jury were led, through their sympathies, to award too large an amount, or acted under some misconception of their duty.</p>

<p>1. Circumstances under which an employee engaged in the working of defective or dangerous machinery cannot recover damages from the employer for injuries received, stated by the court below in its instructions to the jury and affirmed on appeal.</p> <p>2. An employee charged with the duty of working machinery with another employee is not a co-employee in such a sense as to relieve the employer from responsibility for an injury to one of them which happens through the defect of machinery, although that defect may have been brought about by the negligence of the other employee.</p> <p>8. The court cannot take a case from the jury where there is any evidence involving issues of fact. Thus in an action by an employee for injuries received by reason of defective and dangerous machinery which he has been employed to work, the questions of the sufficiency of the machinery, his ignorance of its dangerous character, and the failure of the employer to inform him of the fact, are all matters peculiarly within the province of the jury. It is not error to refuse a prayer for an instruction, proper in itself to be given the jury, if the substance of the prayer has been granted in other instructions.</p> <p>4. The vice of unnecessarily multiplying prayers and exceptions commented upon and condemned.</p> <p>5. It is the duty of the employer to apprise the employee of any defects in machinery which are beyond the reach of the observation of the latter.</p> <p>6. The fact that the plaintiff worked habitually with the machinery in question, for a period of ten or fifteen months, is competent evidence from which the jury may infer that plaintiff was fully acquainted with its dangerous character, but it is not conclusive evidence; the jury are to determine its weight in fixing the extent of plaintiff’s knowledge and how far it is qualified by the other circumstances of the case.</p> <p>7. So whether or not certain facts of the case constitute a sufficient warning of danger must be left to the jury.</p> <p>8. Where an employee, sufficiently apprised of the danger, rashly undertakes an act in connection with the manipulation of machinery at which he is employed, his employer is relieved from responsibility for any injury which results.</p>

The Case is stated in the opinion. It is a familiar principle that the obligation of parties to a bond cannot be extended by implication beyond tlie very terms of their contract. Their obligation is “strictissimi juris.” McCluskey vs. Cromwell, 11 N. Y., 598; Magee vs. Man. Life Ins. Co., 92 U. S., 98; U. S. vs. Boecker, 21 Wall., 656; Miller vs. Stewart, 9 Wheat., 702, 70S; Martin vs. Thomas, 24 How., 315, 317; Thomp., Liab. Sur., 536.

Bill in Equity, to obtain'a confirmatory deed to certain property certified to be beard in the General Term in the first instance. statement oe the case. On August 16, 1871, John 0. Ten Eyck and Joseph E. Burr conveyed by deed in fee simple to Plenry H. Dudley certain lots of ground in the city of Washington. Subsequently a portion of the property became vested by mesne conveyances in the- plaintiff, Henry E. Williams, and the balance in the Arlington Eire Insurance Company.

<p>1. In construing a will the general intent is to prevail and the words are to be construed according to their natural import, unless the context evidently points out that in the particular instance there should be some other construction.</p> <p>2. The above rule applied to the interpretation of a will, and an apparent particular intent overruled by the general intent as evidenced by the language of the will.</p>

<p>On plaintiff’s exceptions, taken at a trial wbicb resulted in a verdict for defendant.</p> <p>Action for malicious prosecution.</p> <p>The Case is stated in the opinion.</p> <p>Perjury cannot be assigned upon an answer in chancery, unless the bill calls for the answer under oath. Silver vs. State, 17 Ohio, 365.</p> <p>An oath to a bill in chancery must be either required or authorized by the common law or the statute or the rules of court; and any verification to a bill without such requirements would be wholly extrajudicial, and perjury cannot be assigned upon it. People vs. G-aige, 26 Mich., 32; Plath vs. Braunsdorff, 40 Wis., 111.</p> <p>The prosecution of a person with any other motive than that of bringing a party to justice is a malicious prosecution in law. Stevens vs. Midland Counties E. Co., 26 Eng. L. & E., 410.</p> <p>In conformity with all common law authorities, where it is proved the prosecution is without reasonable or probable cause, the jury may infer malice. Kirksey vs. Jones, 7 Ala., 622; Thompson vs. Force, 65 111., 371; Chapman vs. Cawrey, 50 111., 562; Israel vs. Brooks, 23 ill., 575.</p> <p>The refusal of the court to grant the second instruction was error. To constitute perjury the oath or verification must be material, or be required, or have some effect in law. 4 Bl. Com., 137; People vs. Fox, 25 Mich., 496; Commonwealth vs. Byron, 80 Mass., 31; U. S. vs. Curtis, 107 U. S., at 672-3; U. S. vs. Coons, 1 Bond, 1.</p> <p>The examination and discharge of the prisoner is prima facie evidence of the want of probable cause, sufficient to throw upon the defendant the burden of proving the contrary.</p> <p>The discharge of a prisoner, by a committing magistrate, or the refusal of the magistrate to hold the prisoner over for trial, is prima facie evidence of the want of probable cause, although counsel may have advised that plaintiff was liable to a criminal charge; and although the defendant may have communicated to counsel all the facts bearing upon the guilt or innocence of the plaintiff which he knew, or by reasonable diligence could have ascertained, the prosecution was malicious.</p> <p>The refusal of a grand jury to hold the accused over until trial must necessarily be very persuasive evidence that the prosecution was groundless. Strauss vs. Young, 36 Md., 254; Cooper vs. Utterbach, 37 Md., 316; Callahan vs. Caffarata, 39 Mo., 136; Brant vs. Higgins, 10 Mo., 728; Frost vs. Holland, 15 Me., 112; Chapman vs. Dodd, 10 Minn., 350; Thompson vs. Morris, 2 Murphy, 248; Bostick vs. Rutherford, 4 Hawks, 83.</p> <p>Where the facts are peculiarly within the knowledge of the prosecutor. Cole vs. Curtis, 16 Minn., 182.</p> <p>• In order for the defendant to shield himself on the ground that he obtained the advice of counsel, it must appear in evidence that he stated to counsel all the facts bearing on the guilt or innocence of the defendant which he knew or by reasonable diligence could have found out. The advice of counsel cannot be accurately said to amount to probable cause in the face of the grand jury ignoring the indictment. The ablest and most recent, as well as the most ancient authorities, require the utmost good faith in procuring the advice and commencing or carrying on the prosecution against another. Neither is there any conflict as to what constitutes good faith in such matters. Sappington vs. Watson, 50 Mo., 84; Sharpe vs. Johnston, 16 Mo., 614; Skidmore vs. Bricker, 11 111., 164; Cole vs. Curtis, 16 Minn., 203; Stewart us. Sonneborn, 98 U. S., 181.</p> <p>The only question is: Was the oath authorized, i. e., permitted, not, was it required by law?</p> <p>If the usage of the court was such as to permit the administration of an oath in the given instance, it is not extrajudicial.</p> <p>The case of People vs. Gaige, 26 Mich., 30, relied upon by the plaintiff, is not inconsistent with this view. That was an information for falsely swearing to a, bill in equity and the court held it bad, both at common law and under the statute. The court, however, held (p. 33) that if the presentment had shown “that the oath was authorized, if not required by the law,” it would, the other averments being sufficient, have been good. The word “authorized,” as here used in distinction from “required,” can only mean by the “permission of or by the sanction of the law.”</p> <p>The same word, “ autho: ized,” is used in section 5293, R. S. which defines perjury; and as there are few instances in the statutes where an oath is prescribed, it must refer to the general power of the courts to administer oaths where the ends of justice require it or the integrity of their proceeding are involved.</p> <p>As to the second proposition, it is not necesary to refer to the elementary principles relating “to probable cause,” “malice,” etc , which are involved in this case. They are familiar to all. Attention is, however, called to the recent case of Stewart vs. Sonneborn, 98 U. S., 197, in which those principles are applied to a case in which the circumstances were singularly similar to those in the case at bar, excepting that one was a civil and the other a criminal proceeding. In that case the Supreme Court held that the defendant, having acted upon the advice of counsel learned in the law was not liable.</p> <p>The defendant in this case, is, himself, a lawyer; but before instituting the proceedings complained of, the record shows that he consulted counsel learned in the law, and was advised that it was his duty as a law-abiding citizen to bring a charge of perjury against the plaintiff.</p> <p>This alone constitutes a perfect defense to an action of this character. Cooper vs. Utterbach, 37 Md., 282; Turner vs. Walker, 3 Grill & J., 377; Stewarts. Sonneborn, supra; Wicker vs. Hotchkiss, 62 111., 107.</p>

The Case is stated in the opinion. The suggestion may be made that certain items not having been formally excepted to, the report of the auditor concludes the court from their consideration. In reply to such suggestion, we refer, in the first place, to the following authorities: 2 Dan. Ch. Pr., 1310 ; White vs. Johnson, 2 Munf. (Va.), 285; Brewer vs. Hastie, 3 Call (Va.), 22; Adams vs. Claxton, 6 Ves., 226; Levert vs. Bed-wood, 9 Port. (Ala.), 79; Hooks vs. Sellers, 1 Dev.

<p>While all the acts and declarations of one alleged conspirator may be given in evidence against himself, no declaration of his can be received against his co-conspi.iator, unless there has been some evidence offered, tending to prove a conspiracy and to implicate such co-conspirator, and then only those declarations are admissible which were made during the progress of the conspiracy and in furtherance of its objects.</p> <p>It is error to charge the jury in a criminal case to the effect that evidence of good character is available only in a doubtful case. The law gives to such evidence a positive defensive force, and it is for the jury to assign its value upon a comparison of all the facts and circumstances which envelope the transaction.</p>

<p>1. By virtue of the act of Maryland of 1798, ch. 101, sub-eh. 12, sec. 10, the Orphans’ Court of this District was empowered, in 1848, to order a sale by a guardian of a part of his ward’s real estate for the latter’s maintenance and education.</p> <p>2. The above-mentioned act was not repealed by the act of Congress of March 3, 1843.</p> <p>3. When there is no moment that the remainderman in fee would not have an immediate right to the estate on the death of the life tenant, it is a vested remainder.</p> <p>4. A devise of a life estate, and then a devise over in fee, to two persons in equal parts, with a devise of the share of him dying first to the survivor, creates a vested remainder in fee; the devise to the survivor being simply an executory devise over of a fee after a fee.</p> <p>5. A devise over in fee to the life tenant in case she survives the two remaindermen, is also such an executory devise.</p> <p>6. The objection to the sale of an infant’s estate in remainder, because of the uncertainty of its value, is removed when the life tenant joins in the sale.</p> <p>7. There is nothing in the act of 1798 which excludes future interests from being sold equally with estates in possession.</p> <p>8. Nor does it exclude the sale of trust estates where the trust is purely personal to the infant; for the trust would cease at the moment of the transfer of their title, and the purchaser would tak,e the legal title by operation of the Statute of Uses.</p> <p>9. No particular form of application, or allegation, or proof, is prescribed as necessary to give the court jurisdiction under the act of 1798. It is sufficient that it is satisfied, in however informal a manner, that the sale is advantageous to the ward, with reference to his maintenance and education, and there need be no record entered of the evidence upon which it decides that fact.</p> <p>10. A purchaser under such a decree is not bound to look beyond the decree.</p> <p>11. The “approval” of the decree of the Orphans’ Court, provided by the act of 1798, to be made by the chancellor, is a revisory and not an appellate proceeding ; and as the statute provides no formalities by which the chancellor is to take cognizance of the proceedings in the Orphans’ Court, that is to be adjusted by the practice of the court.</p> <p>12. One not a party to a deed, and who does not claim under it, is not estopped by its recitals.</p> <p>13. Where a bill of exceptions sets out two rulings of the court, but the exception taken is so ambiguous that it cannot be ascertained which of the rulings was excepted to, the court will disregard the bill altogether.</p>

<p>It appearing from the bill that an application for a patent was filed in the Patent Office in 1874, and definitely refused by decision of the Commissioner in 1875; that no appeal therefrom to the Supreme Court of the District was taken, but that various efforts for the review and reversal of said decision were made from time of time; that in 1885 another application was filed in the Patent Office, which was again rejected for the same cause ; that from this last refusal no appeal was taken, but in 1886, a bill in equity, under section 4915, Bev. Stats., was filed in the Supreme Court of the District of Columbia, the Secretary of the Interior being joined with the Commissioner of Patents as a party defendant; on demurrer to the bill it was held:</p> <p>1. That an applicant for patent is not in an ex parte case, entitled to redress by bill in equity until he has exhausted the remedy by appeal, provided in section 4911, Bev. Stats.</p> <p>3. That this application for patent was constructively abandoned in 1877, under section 4895, Bev. Stats., because the various efforts to procure a reversal of the decision of 1875, and the application filed in 1885, were irregular and illegal proceedings, not contemplated by said section.</p> <p>8. That the Secretary of the Interior may not be made a party defendant to the bill.</p>

Action to recover an assessment made upon stock subscription. Submitted on agreed statement of facts, and certified to be beard in tbe General Terna in the first instance. The Eacts are stated in tbe opinion. Tbe plaintiff cannot sue witbin tbe District of Columbia. His-cause of action is a-chose in action of wbicb be is assignee:; an^^nwbicb be cannot sue at law in bis own name.

Motion to dismiss an appeal taken by the United States from a judgment of the Criminal Court sustaining a demurrer to an indictment for conspiracy. The Facts are stated in the opinion, The jurisdiction of this court on appeal is purely statutory.

<p>A mistake in the description of a recorded deed will not be' corrected by a> court of equity, to- the prejudice of the rights of bona fide judgment-creditors of the grantee having a lien upon the property.</p>

Motions by defendant for new trials in two actions by the same plaintiff' for a continuing nuisance. Statement of the Case. The plaintiff, a religious corporation, has its place of worship on Virginia avenue in the city of Washington. After being located there for some time the defendant, a railroad company, erected its engine and repair shops contiguous to the church.

Bill in Equity to restrain the collection of a tax, certified to be beard in tbe General Term in tbe first instance. The Facts are stated in the opinion.. The conveyance by tax deed by legislative enactment conveys a fee simple title. B. S., sec. 165. It consequently conveys to tbe grantee all title' or interest which tbe grantor had in the land at the time of sale.

<p>1. In an action against a municipality, to recover damages for personal injuries received by reason of a defect in the public highway, the onus of proving contributory negligence is on the defendant.</p> <p>2. Such proof is not made out by merely showing the knowledge by the plaintiff of the defect. If the highway is Wholly impassable and in such condition that no reasonable man would attempt to pass it, plaintiff does so at his own risk; but i£ it is not, and especially if it is- the only access to hie dwelling, the only duty on his part is the exercise of proper care to avoid accidents, and the burden is upon the defendant not only to show knowledge of the defect on the part of the plaintiff, but to show, affirmatively, negligence or the omission to take the proper care;</p>

<p>Í. An answer upon information and belief is a mere statement of matters of hearsay, and amounts to a denial only to the extent of - traversing the facts alleged in the bill, and putting the complainant upon proof, but it has no probative force and cannot negative the testimony of one or more witnesses in support of the bill.</p> <p>2. Nor is the answer aided by the ex parte affidavit of a deceased witness which was originally offered in another proceeding where the complainant sought the same relief. The fact that the affiant is dead does not justify the court in dispensing with the rule requiring the best evidence.</p>

The Facts are stated in the opinion. As to the objection that the alleged order of probate is res judicata: it is positively denied by the petitioner that he had notice, actual or otherwise, of the proceedings instituted for the purpose of probating said will, until after the probate thereof. ■ Even if the legal notice had been given, the order admitting the will to probate was void, because the register of wills who signed it had no power to do so.

Bill in Equity for an account. Hearing in General Term in the first instance.

<p>In a suit instituted under the Married Woman’s Act against a married woman, the declaration or complaint should show that she is a married woman having a separate estate, and that she has, by reason Of some contract having relation to it, become liable to satisfy a judgment against her out of that estate; the judgment against her is not a personal one purely, but one to be satisfied out of her separate estate, and the record should show this ; otherwise the judgment is void.</p>

Action on an appeal bond. The trial resulted in a verdict and judgment against the defendants, two of the sureties. This case came to the General Term upon numerous exceptions to the rulings of the court below. The only question, however, which is considered in the opinion is the refusal of the justice trying the case to grant a prayer of the defendants embodying the proposition of law stated in the head note. The facts upon this point appear in the opinion.

This was an action to recover damages for an injury received by the plaintiff b.y reason of a defective sidewalk, the facts being briefly as follows: The plaintiff, a government employee, being on his way home about 7 o’clock on the evening of November 9, 1880, fell into a hole or area left open and unguarded on Maryland Avenue near Twelth ■street southwest, in the city of Washington, in consequence of which his leg was broken, and on healing became an inch and a half…

<p>1. The circuit court has no power to set aside its judgment, after the expiration of the term at which it was rendered, except on the ground of misprision of the clerk.</p> <p>2. Where there is an evident omission in the general description of the property claimed in a declaration in ejectment, but which description is immediately followed by a correct and particular description, it is no misprision of the clerk to follow the latter description on entering the judgment.</p> <p>3. It is enough if the description in ejectment sufficiently identify the lot to enable the judgment to be rendered for it.</p> <p>4. A judgment in ejectment is not vitiated because it contains no direction as to the count for mesne profits claimed in the declaration.</p>

<p>Service of process, to appear and defend a suit commenced against Mm, was made upon a non-resident wMle present in the court house, he having come there from abroad in order to be a looker-on during the hearing of a certain judicial proceeding there and then pending. Held, on motion to set aside the process, that the circumstances afforded no immunity from such service.</p>

<p>Hearing in General Term in first instance.</p> <p>The Case is stated in the opinion.</p>

<p>1. There is no presumption of negligence against a common carrier, where the accident is shown to have been occasioned by the act of God; the burden of proving negligence is always upon the plaintiff in such a case.</p> <p>2. In providing against accidents resulting from the act of God, ordinary care and diligence is all that the law requires of a common carrier. It is not error, therefore, to refuse to charge the jury that the defendant carrier must exercise extreme care and diligence to avert the consequences of such an event.</p> <p>3. A new trial will not be granted because a certain instruction standing alone might bear an interpretation prejudicial to the right of the plaintiff, but which, when taken in connection with the other instructions and the charge of the court, appears to be a fair statement of the law.</p>

<p>1. The relative rank of officers of the Navy is a subject within the control and direction of the Secretary of the Navy, and cannot be interfered with by mandamus.</p> <p>2. Nor is such rank a vested right or a matter of contract; it is a subject open to legislation by Congress and to the action of the Executive Departments within the scope of their discretion.</p> <p>3. It is within the authority of the Secretary of the Navy to adopt a rule by which the relative, rank of officers of the Navy shall be regulated, and afterwards to rescind such rule and adopt another, although the latter rule may have the effect of placing an officer in a lower relative rank than that assigned to him under the provisions of the previous rule.</p> <p>4. This court has nothing to do with the reasons of the Secretary for rescinding such rule; it is sufficient that it is within the scope of his discretion and authority to do so.</p> <p>5. The writ of mandamus can only issue when the law plainly and unambiguously makes it the ministerial duty of an executive officer of the Government to do an act, without allowing any scope for the exercise of judgment on his part.</p>

<p>1. The tax laws of this District contemplate only the taxing of corporeal property, and not incorporeal rights, whether real or personal; a tax, therefore, directly upon the franchise of a corporation as an independent and distinct subject matter is invalid and void.</p> <p>2. Where a tax is assessed upon different kinds of property as a unit, and a part of the property is not legally taxable, the whole tax will be void if the court cannot, from anything in the record, separate the invalid portion from that which is not.</p> <p>8. The Board of Equalization has no power to decide any question going to the invalidity of a tax; it can only increase or decrease the tax; it is therefore no objection to grauting relief by the courts against an invalid tax that no appeal was made to this board.</p> <p>4. Relief against a tax sale under an invalid tax can be obtained either by certiorari to bring up the record of the assessment for the purpose of having it quashed, or by bill in equity to declare the sale void and enjoin the setting up of title under it.</p>

<p>Where there is a traverse of a plea and on the trial the jury, under instructions, finds for the plaintiff, the appellate court, if it finds that the plaintiff was not entitled under the evidence to recover, can only set aside the judgment and remand the case for a new trial; it cannot render a final judgment for the defendant, for that would be to decide the issue of fact raised by the plea and traverse (overruling, upon this point, Benham vs. Vernon, 5 Mackey, 18).</p>

Petition for mandamus against the Commissioners of the District of Columbia to compel the issuing to petitioner of a building permit and a license to carry on a theater. Heard in the General Term in the first instance. The Case is stated in the opinion.

Anthony Buchly died leaving his last will and testament. At the time of his death he was a member in good standing of the Masonic Mutual Relief Association of the District of Columbia. One of the by-laws of this association is as follows : “Sec. 4. Benefits.

<p>1. A married woman cannot contract in this District as a sole trader, notwithstanding the Married Woman’s Act.</p> <p>2. A married woman living with her husband, carried cm. the business of a retail dealer in boots and shoes, on her own accownt and with her separate estate. For the purpose of keeping up her stock and assortment of sizes she bought a quantity of boots and shoes of the plaintiff, giving her promissory note in payment. On a suit brought against her on the note it was held that the plaintiff could not recover, this not being a contract having relation to the defendant’s separate estate, within the xneaning of the Married Woman’s Act.</p>

<p>Under the act of March 3,1877, governing the assessment of taxes in the District, the yearly assessments must be closed on the first day of July of each year, and the taxation computed from that day for the yisar ending June 30 next. Property which may come into existence during the interval is not liable to taxation until the commencement of the'next taxable year. Thus: where a corporation had filed its certificate of organization on the 23d oí June, 1884, but no* practical organization or subscription to stoek had been made until the' September following, when the company announced itself ready for business, an assessment of taxes upon the capi--tal stoek for the year commencing July 1,1884, is invalid and void.</p>

Petition for mandamus certified to be heard in tbe General Term in the first instance. The Facts are stated in the opinion.

The Facts are stated in the opinion. The intention of a testator is to be collected from the words of the will, and the whole of the will is to be considered and compared; and such… Held: absolute gift of capital. Humphrey vs.' Humphrey, 1 Sim. N. S., 536. By a devise of the rents the land itself would pass, unless a contrary intention appeared. Kerry vs. Derrick, Cro, Jac., 104. A devise of the rents of an estate is held to pass the fee, 2 Rédf., Wills, 2d ed., 329.

<p>1. W. devised to H. B. and her son, C.. for life, as joint tenants, and if 0. should marry and die leaving lawful issue of such marriage; or the lawful descendants of such children, and if such lawful issue, or their lawful children should be in being at the time of the death of the survivor of said H. B. and 0., then to such issue and children and their heirs in fee simple; but if said 0. should die without having been married, or without leaving such lawful issue, or the children of such lawful issue, surviving him, then tc testator’s right heirs, who were the said H. B., one of the life tenants, and her sister, S. M. B.</p> <p>Held, not a devise in tail to 0., but devise to H. B. and C., for life, with contingent remainder in fee to the immediate children of C., or to the children of such children, according as the one or the other should be in being at the death of the survivor of the life tenants; and that reversion of the fee descended to H. B. and S. M. B., until the contingency happened.</p> <p>2. During the contingency, H. B.’s moiety, by mediate descent vested in . C., and S. M. B.’s moiety was conveyed to him by bargain and sale.</p> <p>Held, that C.’s life estate was merged, and the contingent remainder was defeated.*</p>

<p>1. In an information in the police court it is sufficient to state, over the certificate of the district attorney, that the complaint is made on oath of the • party whose name is mentioned; it is not necessary that the party’s signature appear upon the paper.</p> <p>3. Under the license law of 1878 (30 Stat. at L., 173), requiring the keeper of every dog to pay a certain tax, payment of which is to be evidenced by a “ tag ” furnished by the District authorities, and to be affixed to a collar worn by the dog, no previous assessment of such tax is necessary. The . law is violated when the tax is not paid.</p> <p>3. The penalty is to be enforced by information in the police court, at the instance of the United States District Attorney.</p> <p>4. Violations of all laws of the United States applicable to this District are to be prosecuted by the District Attorney of the United States; but violations of the municipal ordinances are to be prosecuted by the attorney for the District.</p>

<p>1. The proprietor of any square or lot in the District of Columbia has a right to subdivide the same, and to have the plat of such subdivision recorded by the District surveyor in a book to be kept for that purpose. The duty of the surveyor is to examine the subdivision, to ascertain whether the dimensions thereof correspond with those represented on the plat; and if he finds that fact, it is made his ministerial duty to record it, and the Commissioners have no authority to interfere.</p> <p>2. But if the plat offered for record is not under the hand and seal of the proprietor, attested by two credible witnesses, it cannot be recorded.</p>

<p>1. Under section 1117, B. S. U. S., a minor cannot be legally enlisted in the United States Army without the consent of his parents or guardians; the desertion, therefore, of such a person after -his enlistment is not criminal, but is rather to be regarded as a disaffirmance of the enlistment. He is not a deserter, and if detained as such he may be discharged on habeas corpus.</p> <p>2. Nor is the father, when petitioning for the writ, estopped to show the minority of the son because the latter had once been discharged on that ground and had re-enlisted, in both eases averring himself to be over twenty one years of age.</p> <p>3. Nor does the fact of the apparent absence of restraint or control exercised over the son estop the father from setting up that the enlistment was without his knowledge or consent.</p>

<p>'The act Of the late Legislative Assembly of 'the District of Columbia, imposing a license tax upon commercial agents, or drummers, Whose business it is, as agents for non-resident manufacturers or wholesale dealers, to offer merchandise for sale, is unconstitutional and void as a restriction upon interstate commerce.</p>

<p>There is no such judicial proceeding known in the United States as a petition of right as the same was practiced and observed in the administration of justice in England.</p> <p>The Act of Congress of January 16,1883, and its supplements, establishing what is known as the Civil Service Commission, are not unconstitutional.</p>

On demurrer to the declaration in an action for damage» for injuries inflicted by a vicious dog. The Case is stated in the opinion.

. Bill in equity to charge real estate of a married woman. Hearing on demurrer in Gfeneral Term in the first instance. The Facts are stated in the opinion. Hagner & Maddox for complainant. Bobert Christy and G-eorg-e E. Hamilton for defendants.

<p>1. Whatever the form of the. contract, the court will look into all the circumstances of the case in determining whether the transaction be in substance a speculation on joint account, or a mere disguise or contrivance for the purpose of securing usurious interest; and it is not at all conclusive upon this question that, instead of an obligation to repay the money advanced, it is made optional to do so or forfeit the security. On the other hand, if it is made obligatory to return the security on repayment, with illegal interest, of the money advanced, that is conclusive of the usurious character of the transaction.</p> <p>2. The facts of such a case stated and considered by the court, and found to be a contract to secure illegal interest.</p> <p>3. The statute allows interest to be contracted for in writing at the rate of 10 per cent per annumbut recovery can be had at such rate only to the date specified in the contract, and after that only at the legal rate.</p>

Motion by defendants for a new trial on bill of exceptions. Action for false imprisonment. The facts are stated in the opinion.

Petition for the writ of Habeas Corpus. The Case is stated in the opinion. As all municipal corporations exercise only delegated and limited powers in the absence of statutory authority to the contrary, courts are authorized to indulge in no presumptions in favor of the validity of the ordinances, especially where they abridge general or common-law rights, or impose burdens or penalties upon the inhabitants. 1 Dill. Mun.

The Case is stated in the opinion. The deed of assignment provides tbat no one shall be entitled to be admitted as a creditor, unless be shall file with, or give notice of his claim, to the assignee before final dividend. After paying such creditors only, the remainder to he paid to William R. McLean, grantor. Plainly, this is such a reservation to the grautor as avoids the assignment.

<p>1. In an action against the principal and his sureties on an official bond the principal failed to defend, but no judgment was taken against him. On the trial, the evidence being held insufficient against the sureties, and the court being about to direct .a verdict in their favor, the plaintiff, consented that the principal should be included therein. Held, that the consent verdict in favor of the principal worked a discharge of the sureties, even though the court was in error in its rulings as to the sufficiency of the evidence against them.</p> <p>3. The proper course to have pursued in such a case, pointed out by the court.</p>

Hearing on a rule against the purchaser under a chancery sale of infant’s realty to show cause why he should not be compelled to comply with the terms of sale. The Case is stated in the opinion.

On Exceptions to the auditor’s report. Certified to the General Term to be heard in the first instance. The Facts are stated in the opinion. The assessment is not a lien on the property, Cooley on Taxation, pp-. 466, 305, 306 \ 2 Dill-, Mun. Corp,, sec, 659. If there is power to create such a lien on the property-under our law, it can only attach after all the prerequisites of the law have been complied with. Cooley on Taxation.

<p>Where on the adjoining lots owned by the same party there is erected a party wall and the owner conveys one ol the lots, such conveyance, unless there are express woi'ds of reservation, conveys the right to use the party wall; and the consideration agreed on for the land must be taken to be for everything that was conveyed by the deed, unless an express consideration of a different kind is shown. .</p>