Volume 17 — District of Columbia Reports

Action for damages to land. Motion by defendant for a iiew trial on a bill of exceptions and case. The Case is stated in the opinion.

Action for damages to land. Motion by defendants for a new trial on bills of exception. The Case is stated in the opinion.

Motion by plaintiffs for a new trial on bills of exception. Action on a promissory note. .The trial resulted in a verdict for the defendants. The Case is stated in the opinion.

Applications for writs of certiorari to determine the validity of certain lien certificates. Heard in the General Term in the first instance. The facts are stated in the opinion.

Motion by plaintiff for a new trial on a bill of exceptions. Action on a promissory note. The trial resulted' in a verdict for defendant by direction of the Court. The Case is stated in the opinion.

<p>1. In the District of Columbia keeping a bawdy house, although recognized by the statutes as a criminal offense, has no penalty affixed to it by statute; it is, therefore, to be regarded as a common law, not a statutory, offense ; and the punishment, as in other cases when it is not fixed by statute, is fine or imprisonment in jail, or both, in the discretion of the Court.</p> <p>2. By Section 1049, R. S. D. C., a crime which may be punished by imprisonment in the penitentiary is beyond the jurisdiction of the Police Court.</p> <p>3. Section 5541, R. S. U. S., and the Act of July 12, 1876, (10 Stat., 88,) do not give the Attorney General of the United States power to order that a prisoner sentenced to jail shall be confined in the penitentiary, although he may remove a prisoner from one jail to another or from one penitentiary to another.</p> <p>4. .Neither of these statutes affects the punishment of common law offenses, nor the jurisdiction of the Police Court under Section 1049, R. S. D. C.</p> <p>5. Libel is an offense of the same class as keeping a bawdy house, viz.: a common law misdemeanor, the punishment for which is fine or imprisonment in jail, or both, at the discretion of the Court; and the Police Court has jurisdiction to try and punish either.. United States vs. Buell, 1 Mae A., 502, overruled on this point.</p> <p>6. For any common law misdemeanor, except when the statute has so expressly provided, the offender cannot be sentenced to imprisonment in the penitentiary for any period of time whatever; the imprisonment must be in the jail only, but its duration is within the discretion of the Court.</p> <p>7. The Police Court has jurisdiction of such misdemeanors (in the case at bar keeping a bawdy house), and may sentence the offender to imprisonment in jail for a period exceeding one year.</p> <p>The Chief Justice and Justices James and Merrick sitting.</p>

Action for damages for a personal injury alleged to have been caused by defendant’s negligence. The trial resulted in a verdict and judgment for plaintiff. Motion by defendant for a new trial on bills of exception. The Facts appear from the opinion.

Information in the nature of a quo warranto against a justice of the peace; certified to General Term for hearing-in the first instance. The Facts are stated in the opinion.

Motion by defendant for new trial on bills of exception. Action to recover damages for a personal injury alleged to have been caused by the negligence of defendant company. The Facts are stated in the opinion.

Motion in the Criminal Court for a new trial, certified to the General Term for hearing in the first instance. ' Indictment for assault with intent to kill. Ti-ie Case is stated in the opinion.

Suit to determine the title to certain lands, commenced under the Act of Congress of August 15, 1886, providing for protecting the interests of the United States in the Potomac Flats. Motion by defendant Harvey for a decree, certified to the General Term to be heard in the first instance. Ti-ie Facts are stated in the opinion.

Bill in Equity for the ratification of a contract made by the committee of a lunatic for the conveyance of the lunatic’s interest in certain real estate. Certified to the General Term for hearing in the first instance. The Case is stated in the opinion.

Appeal by complainant from a decree of Special Term in Equity, dismissing a bill seeking to have certain conveyances declared fraudulent. The Pacts are stated in the opinion.

The first-case is a bill in equity filed against the brother of the complainant’s deceased wife, seeking an. account of her personal estate in their-possession. The second case is a -proceeding certified to this Court, on a rule obtained in the Orphans’ Court by the next of kin of a deceased married woman, requiring her husband to show cause why letters of administration in her estate should not issue to such next of kin. The question presented is stated in the opinion.

Appeal by complainants from a decree of Special Term, dismissing a bill in equity by vendors seeking specific performance of a contract for the purchase of real estate.

<p>The statutes relating to patents do not provide for the granting of a patent for an article which is the necessary product of a machine previously patented.</p> <p>The Chief Justice and Justices Hagner, James and Merrick sitting:.</p>

This was a motion to quash forty-three writs of certiorari which had issued to the Treasurer of the United States and the Commissioners of the District of Columbia, on the prayer of the respective petitioners alleging the invalidity of certain taxes assessed against their property. The writs commanded the respondents to certify to the Court the papers and records of proceedings in each case.

<p>Appeal from a decree refusing a partition.</p> <p>The Case is sufficiently stated in the opinion.</p>

<p>1. To ascertain whether testatrix, by an alleged residuary clause of of the will, intended to dispose of all her estate not otherwise specifically bequeathed, the Oourt must examine the entire instrument in connection with the surroundings of the testatrix and the nature of her property.</p> <p>2. Ordinarily a gift of the testator’s money or moneys does not include United States bonds; but this restricted signification of the word will be departed from where it is used in the only residuary bequest and coupled with the description that it is money remaining after the payment of the testator’s debts and legacies or debts.</p> <p>3. Where the inventory and account appear on their face to be returned by both executors, this will be considered the act of both, although as a matter of feet only one of the executors swore to the same.</p> <p>The Chief Justice, Justices Hagner and James sitting.</p>

Cross Appeals from a decree in favor of complainant in a suit brought to enforce a mechanics’ lien. The Case is stated in the opinion.

Hearing in General Term, in tbe first instance. Statement oe the Case.

<p>1. The denials of the answer, if responsive to the averments of the bill, are to be taken as true, unless disproved according to the requirements of the rule of chancery evidence.</p> <p>2. In the absence of a special authority the general authority of a real estate agent is simply to find a purchaser and report him to the owner. He has no power to conclude a sale; affirming Ryon vs. McGee, 2 Mackey, 17.</p> <p>The Chief Justice and Justices Hagner and James sitting.</p>

<p>1. Where a garnishee holds property which once belonged to the defendant, but which before the garnishment was for a valuable consideration sold to the garnishee, the attachment cannot reach it; and the garnishee may intervene in the proceedings to defend it from condemnation.</p> <p>2. The fact that such intervenor does not specify among his grounds for moving to quash the attachment that he is the actual owner of the property is not material if the affidavit accompanying his motion expressly disclose such to be his ground of objection.</p> <p>The Chief Justice and Justices Hagner, James and Merrick sitting.</p>

<p>The Maryland Act of 1729, chap. 8, secs. 5 and 6, requiring a bill of sale of personal property, whereof the grantor remains in possession, to be recorded within twenty days from its execution, is in force in this District.</p> <p>Tbe Chief Justice and Justices Hagner and James sitting.</p>

<p>Motion by defendant for a new trial on a bill of exceptions and case.</p> <p>Ti-ie Case is stated in the opinion.</p>

Appeal by plaintiff from a judgment sustaining a demurrer to tbe declaration in an action upon a contract. The Facts are stated in the opinion.

<p>1. Where one receives certain bonds, and contracts for “ the safe return of said bonds,” his obligation is to return the identical bonds and not an equivalent amount in similar bonds.</p> <p>2. Goods delivered with the understanding that the bailee may, at his option, appropriate them to his own use and pay their value is a bailment convertible into a sale at the option of the bailee; and when they are so converted the original bailor may sue in assumpsit for goods sold and delivered.</p> <p>3. In such an action the Statute of Limitations would seem to run only from the date of the conversion.</p> <p>4. In trover the conversion is shown by proof of a demand and refusal, and limitations run only from the date of such demand.</p> <p>5. In cases of conversion by a wrongful sale of property the owner may waive the tort and sue in assumpsit for goods sold and delivered; .in which case limitations run from the date of the sale.</p> <p>6. While an action of trover cannot be converted by amendment into an action of assumpsit, yet where the declaration has a double aspect, being partly in trover and partly in assumpsit, it is not error to permit the plaintiff to strike from his declaration the objectionable features so as to make it applicable to but one form of action.</p> <p>7. In a declaration containing the common counts only, the plaintiff need not file a bill of particulars, unless required so to do by the defendant.</p> <p>8. The bill of particulars when filed becomes a part of the declaration, and the evidence is limited to its items. Plaintiff may, however, file more than one bill, so as to have one applicable to each of the common counts.</p> <p>9. If the action be assumpsit, the fact that the bill of particulars is applicable only to a declaration in trover does not change the character of the action.</p> <p>10. Where the declaration is filed in time, but is afterwards amended, not to introduce a new cause of action, but simply to correct a defective count, the Statute of Limitations cannot be pleaded thereto.</p> <p>11. The rule that more than one counter pleading may be filed is limited to the plea; it does not extend to the replication.</p> <p>12. Where a demurrer is overruled and the party pleads over instead of appealing, he thereby waives his demurrer, and cannot after-wards have the Court’s ruling thereon reviewed on appeal from the final judgment.</p> <p>13. An application to amend the pleadings after the jury is sworn is addressed to the discretion of the Court, and is not the subject of .. review in an appellate court.</p> <p>14. To a plea of limitations the plaintiff may reply that the cause of action was fraudulently concealed from him, and that he did not discover it until within three years before the commencement of suit.</p> <p>15. An implied assumpsit may be revived by a new promise so as to defeat the bar of the Statute of Limitations.</p> <p>16. In a case of bailment the bailee cannot dispute the title of his bailor, except under certain circumstances, such as that the property was recovered from him by a better title, or that he had voluntarily surrendered it to one having a better title.</p> <p>The Chief Justice and Justice Cox sitting.</p>

Hearing, on a writ of certiorari, as to the validity of a tax assessment! The Facts are sufficiently stated in the opinion of the Court.

Demurrer to a bill in equity, filed to enforce a mechanics’ lien; certified to the General Term for hearing in the first instance. The plaintiffs’ mechanics’ lien was duly filed and recorded in the clerk’s office March 29, 1886, and the bill to enforce the lien was filed April 10, 1886, with the following caption: Wm. E. Spalding and George W. Bonnell, doing ' business as firm of Wm.

<p>Bill in equity to enforce a mechanics’ lien.</p> <p>The Case is sufficiently stated in the opinion.</p>

<p>1. Where a suit is brought against two defendants, upon a joint note, the plaintiff must prove his case as to both; he cannot enter a nolle prosequi as to one, on failure to prove the note against him.</p> <p>2. To make a payment amount to or imply a new promise, it must appéar that the defendant made the payment, and that it was made on account of the debt in controversy.</p> <p>The Chief Justice, and Justices Cox and James sitting.</p>

<p>1. The wife alone must sue upon a promise made to her in a matter having relation to her separate estate.</p> <p>2. Parties cannot' be joined as plaintiffs in a suit at law, unless each is interested in the entire cause of action. Thus, where the wife is the owner of but part of the cause of action she cannot be joined with her husband in a suit for the whole.</p> <p>3. But the wife may be joined with her husband'in a suit where the wife is the meritorious cause of action — as, where she has rendered personal services; or the husband may sue alone for such services.</p> <p>The Chief Justice and Justices Cox and James sitting.</p>

Bill for divorce, certified to the General Term for hearing in the first instance. The Case is sufficiently stated in the opinion. Mr. Fred W. Jones, for complainant.

. ’Motions for new trials on exceptions taken by defendant In actions to recover damages for a private nuisance, in which the plaintiffs recovered Judgments. The Case is stated in the opinion.

Motion to qiiash two informations upon which convictions were had in the Police Court and appeals taken to the Criminal Court, and from there certified to the General Term for hearing in the first instance. The'Facts are sufficiently stated in the opinion.

<p>Appeal from an order directing the delivery of possession of real estate purchased at a chancery sale.</p> <p>The Case is stated in the opinion.</p>

Appeal by defendant, Baltimore and Potomac R. R. Co., from an order denying petition to revoke the plaintiffs’ letters of administration. On the 19th of February, 1885, John T. Franey, a railway postal clerk, was serving in that capacity on a postal car attached to a train of the Alexandria and Washington Railroad, a road in which all the defendants were alleged to be jointly interested.

<p>1. Where a legacy is given to the legatee and in case of his death to his heirs, it does not lapse by the death of the legatee during the life of the testator, but will go (it being personalty) to the next of kin.</p> <p>2. A bequest of “my Government bonds,” “myconsols,” etc.,isaspecific legacy; and if the testator disposes of the bonds, or consols in his life-time the legacy is adeemed.</p> <p>3. But a bequest simply of “Government bonds” or other described securities is a pecuniary legacy to be provided for by the application of so much money for their purchase; and it makes no difference whether at the time of the bequest or afterwards the testator owns, or does not own, the particular securities he speaks of.</p> <p>4. Where the testator bequeaths to his widow for life a sum of money out of his estate, with remainder upon her death to A and B, and the widow elects, instead, to take her distributive share under the law, A and B become entitled to the payment of the entire sum immediately, and are not postponed to the time of her death.</p> <p>5. If afterpayment of the widow’s distributive share the amount of the estate remaining is not sufficient to satisfy all the legacies in full, they must abate pro rata.</p> <p>Tlie Chief Justice and Justices Cox and James sitting.</p>

Bill in equity brought to enforce a mechanics’ lien against the premises of the defendant, for work done and material furnished under a written contract. Statement oe the Case.

<p>1. On a proceeding by certiorari against the District Commissioners to obtain the quashing of an illegal tax, the return of the Commissioners to the writ commanding a certification of the record of the proceedings stated that the record could not bq found and that they could return nothing more than the charge of the tax upon the collector’s books. Held, that, without affirming the validity of the tax, the prayer for relief must be denied, since the Court could pass no order with reference to any record or proceeding not before the Court.</p> <p>2. An ordinance directing a street to be paved at a cost of so much per square foot, but leaving to subordinates the measurement of the work done and the apportionment of the cost among the adjoining property holders, is not a delegation of legislative authority.</p> <p>3. While the objection that the dollar mark is not prefixed to the figures representing the tax charge against the property is ordinarily fatal, yet where the figures are in such detail and plain connection with other figures that no one can fail to understand their meaning, the Court will not give much weight to the objection.</p> <p>4. Where an ordinance requires that after an assessment of the tax has been made notice shall be given to the owner, and that interest upon the tax shall be charged from the date of the notice until paid, the failure to give notice does not affect the validity of the assessment, it only prevents the charge of interest upon the tax.</p> <p>5. Where the illegal portion of the tax can be separated from that which is legal the Court will not quash the whole assessment but only the illegal portion. (Alexandria Canal R. & B. Co. vs. District of Columbia, 1 Mackey, 217, distinguished from the present case.)</p> <p>6. Where the duty of assessing the tax for paving work done is assigned by law to a certain officer, but before the assessment can be made the office becomes extinct by expiration of the city’s charter, an assessment of the tax for the work done is invalid if subsequently made by an unauthorized official.</p> <p>7. It seems that the power “ to prevent and remove nuisances” granted by its charter to the City of Washington did not confer any authority to levy the cost of removing a nuisance as a special tax upon the lot and to sell it for nonpayment.</p> <p>The Chief Justice and Justices Cox and James sitting.</p>

Motion by plaintiff for a new trial on a bill of exceptions. Action for money had and received. At the trial the Court directed a verdict for the defendant. The Facts are sufficiently stated in the opinion.

The bill was filed by judgment creditors of the defendant, Antone Devote. It appeared that Devote, after part of the debt included in plaintiffs’ judgment was incurred, conveyed his real estate to the defendant, Sprigg, for the stated consideration of $10, and on the same' day Sprigg conveyed the property to the defendant, Anna M. Devote, wife of Antone Devote, for the same consideration. Further facts are stated in the opinion.

The Facts are stated in the opinion. Messrs. James F. Hood and Mills Dean, for plaintiff: It is sufficient if the contract can be plainly made out in all its terms from any writing of the party or even from his correspondence. Ide vs. Stanton, 15 Vt., 690; Abeel vs. Radcliff, 13 Johns., 298. Weller & Repetti sign as “ agents for owner” and parol testimony is admissible to show their agency. Browne, Stat.

<p>A debt due a partnership cannot be attached to satisfy a judgment rendered against one partner who alone was served in a suit commenced .against both partners on a partnership contract; for the obligation of the firm became merged in the judgment against one partner as to all members of the firm, and the judgment being against one only, the execution cannot be broader than the judgment and can only be levied on the property of the judgment debtor.</p> <p>The Chief Justice and Justices Hagner and James sitting.</p>

Motion by plaintiff for a new trial on exceptions. This was an action of trespass. The declaration alleged that the defendants with force-' and arms, etc., “ wrongfully seized a certain colt of the plaintiff of the value of $150, and then and there carried away the same and converted and disposed of the same to their own use,” to the damage of the plaintiff -$250. ■ The defendants, Perkins and West, pleaded not guilty.

<p>Appeal from a decree in favor of complainant in a bill in equity to obtain tbe insurance money upon a policy of life insurance wbicb had been assigned to defendant, Harrison, by complainant.</p> <p>The Facts are stated in the opinion.</p>

Bill of interpleader filed by a trustee to obtain a construction of a marriage settlement. On Appeal by defendant, Mills Dean, from a decree of the Special Term. The Facts and question presented are sufficiently stated in the opinion.

Petition for mandamus against Wm. B. Webb and others, Commissioners of the District, to compel the issuance of a liquor license. The Facts are sufficiently stated in the opinion.

<p>1. When a person does not purport to act for a principal, but buys in his own name, the principal cannot afterwards adopt the transaction.</p> <p>2. If, however, he uses the money' of his principal, equity will fasten upon the transaction a constructive trust in behalf of the principal.</p> <p>The Chief Justice and Justices Oox and James sitting.</p>

<p>1. Where a loss must fall on one of two innocent parties, the one whose neglect or lack of foresight made the loss possible must bear the burden.</p> <p>2. This rule applied to the case of a failure to place upon record certain deeds of conveyance, whereby an innocent party was led to purchase from the apparent owner, as disclosed by the record.</p> <p>The Chief Justice and Justices Cox and James sitting.</p>

<p>1. To a bill by a creditor against the trustee of an assigned insolvent estate, alleging that the trustee has rendered to the creditors no account of his doings, it is not a sufficient answer to say that the books of the insolvent firm, as well as the books of the trustee, have always been open to any one interested to examine them, and that the complainant has been especially invited so to do, but has refused. The creditors are entitled to a full account of his proceedings, showing what assets came into his possession, their value, and what he has realized out of them; how he has realized it, and to whom and when the money realized has been paid,</p> <p>2. Nor is it sufficient to excuse the trustee from rendering such account that he avers he has proceeded diligently and honestly in the execution of his trust, or to say that there was a large amount of debts owing at the time of the assignment which he has reduced to a comparatively small sum, and that the creditors who were many are now few.</p> <p>3. Where such an answer admits the assignment, and that the complainant is a creditor of the estate, the Court will send the cause to the auditor with authority to take testimony and state an account, notwithstanding a replication has been filed, and no testimony or proof has yet been taken before an examiner.</p> <p>The Chief Justice and Justices Cox and James sitting.</p>

<p>Appeal from a decree dissmissing a bill for specific performance.</p> <p>The Case is sufficiently stated in the opinion.</p>

<p>1. Where, after a final decree, a petition for a rehearing is filed within the term at which the decree was entered, the time for appeal from the decree is suspended until the petition is disposed of.</p> <p>2. The “Supreme Court” mentioned in Equity Rule 86 of this Court, is the Supreme Court of the United States.</p> <p>The Chief Justice and Justices Cox and James sitting.</p>

Hearing, in General Term in the first instance, of a demurrer to a bill in equity to enjoin a judgment at law. ■ The Facts are fully stated in the opinion.-

<p>1. A deed of assignment, purporting to convey “all the property, real, personal and mixed, not exempt from attachment, which the parties of the first part or any or either of them, have and hold in the City of Washington, in the District of Columbia,” is sufficiently comprehensive in its description of the property.</p> <p>2. A man in debt may prefer any of his creditors, and may execute a mortgage to secure a debt of a certain amount payable at a certain time; but the unsecured creditors are entitled to the equity of redemption, and if the deed by its terms so covers up and screens such equity as to obstruct access to it by the unsecured creditors, the whole instrument is fraudulent.</p> <p>3. A deed of this character examined and declared to be fraudulent.</p> <p>4. An assignment is void which, in addition to imposing conditions of delay upon the creditors who come in under it and excluding those who- do not assent to such conditions, reserves the surplus for the benefit of the grantor.</p> <p>5. A deed, purporting to convey lands in this District, if acknowledged out of the District, must be accompanied by a certificate of the public officer having cognizance of the fact that the officer taking the acknowledgment was at the time the officer he purported to be.</p> <p>6. The Recorder of Deeds is only authorized to record deeds acknowledged in the manner prescribed by law, and an instrument not so acknowledged, although recorded, is no protection of the property • against creditors.</p> <p>7. An assignee whose deed appears fraudulent on its face cannot have the assistance of-a court of equity to quash an attachment laid upon the property by the plaintiff in a suit at law against the assignor, on the ground that such plaintiff’s debt is barred by limitations, when the defendant himself has not interposed such a defense to the suit. The defense of limitations is the privilege of the debtor alone.</p> <p>8. A deed, which at the time of its execution was fraudulent and void as against a creditor, cannot, because lapse of time has barred the creditor’s debt, become thereby valid, or place the assignee in a position to claim affirmative relief in equity against such creditor.</p> <p>The Chief Justice and Justices Cox and James sitting.</p>

<p>1. The Act of Congress of 1865, sec. 4, providing for the trial of issues of fact by the Court instead of a jury, does not apply to this Court.</p> <p>2. But under section 7 of the Act of 1863 (the Organic Act), and Rule 39 of the Court, issues of fact may tried by the Court and an appeal be taken from its finding, although no stipulation in writing waiving a jury has been filed in the case. 1</p> <p>3. An acknowledgment of a debt barred by limitations, casually made by the debtor to a third person and not communicated or intended to be communicated to the creditor, is not sufficient to revive the debt.</p> <p>4. The decision of this Court in Soper vs. Baum, 6 Mackey, 29. explained and distinguished from the present case.</p> <p>The Chief Justice and Justices James and Merrick: sitting.</p>

<p>Where A is dealing with B in respect of several matters, believing him to be the principal in all of them, and in the course of such dealings A pays money to B’s agent and after such payments A discovers that B himself was but the agent of 0 in some of the matters; and that O had not authorized B to employ a sub-agent; and that the moneys so paid by A were misapplied by B and his agent and the several accounts have been mixed and confused, A’s remedy is by bill in equity against B for an account; there is no liability on the part of C, in such a case, to A.</p> <p>Justices Hag-ner, Cox and James .sitting.</p>

<p>While in a suit for divorce brought by the wife the Oourt may allow alimony pendente lite, even when there is a plea to the jurisdiction of the Oourt, yet under special circumstances it will refuse such allowance until the question of its jurisdiction to entertain the suit has been first determined. Thus, in this case, it appearing that the wife’s relatives had stimulated the bringing of the suit, and had. promised to take care of her and to provide the means necessary for its prosecution, the Oourt, under the circumstances, refuses to grant such alimony until the plea to the jurisdiction has first been disposed of.</p> <p>The Chief Justice and Justices Cox and James sitting.</p>

<p>1. A justice of the peace in this District has no jurisdiction to entertain a suit against an administrator or executor.</p> <p>2. This Court has general jurisdiction in all cases not within that of justices of the peace and is excluded from original jurisdiction only in such cases as are given to them.</p> <p>The Chief Justice and Justices Cox and James sitting.</p>

<p>1. A judgment creditor may have relief in equity against an alleged fraudulent debtor who has either fraudulently conveyed his property, or who only possesses an equitable interest therein, and in either case a return of nulla bona is conclusive evidence that the debtor has no other property liable to execution.</p> <p>2. Where personal property is alleged to have been fraudulently conveyed by the debtor, the judgment creditor is not to be driven to the hazard of giving a bond of indemnity to the marshal or of risking the danger of litigation under the execution with those who claim title under the assignment. It is sufficient to give equity jurisdiction if he shows by a return of nulla bona that there is no other property liable to execution.</p> <p>The Chief Justice and Justices Cox and Merrick sitting;.</p>

Appeal by complainant from a decree made upon a hearing in equity on bill and answer in a case involving the construction of a will. The facts are sufficiently stated in the opinion.

Certified to the General Term for hearing in the first instance. Statement oe the Case. This was a landlord and tenant proceeding, before a justice of the peace, by the owner of the premises (the District of Columbia) to recover possession thereof. Judgment being rendered for complainant, an appeal was taken to the Special Term of this Court, where the case was tried before a jury.

<p>1. It is the settled law of this District that a widow is not dowable of an equity of redemption.</p> <p>2. The Orphans’ Oourt has no jurisdiction to apply the doctrine of equitable conversion in its administration of a decedent’s estate. The application of that doctrine belongs solely to courts of equity, where the relief should be sought.</p> <p>3. Where the land is sold by the trustees during the mortgagor’s life, the surplus, after satisfying the debt, is payable to him or, if he dies before the time of payment, to his executors, administrators or assigns. If, however, it is sold after his death intestate it is payable to his heirs.</p> <p>4. The formal directions in a deed of trust to secure a debt as to the application of the surplus in case the property is sold to satisfy the debt are generally superfluous, as the law itself directs the application. When inserted they are often inaccurately expressed, and when such appears to be the case they are to be interpreted as meaning just what the law would direct in case of their omission.</p> <p>5. The deceased had executed in his lifetime a deed of trust upon real estate to secure a debt, his wife releasing her dower by joining in the deed. By its provisions the trustees were directed in case-of default to sell and after satisfying the debt to pay over the residue to the grantor “his executors, administrators or assigns.” After his death the property was sold under the trust. Held, that the widow was not entitled to any part of the surplus, but the same was distributable to the heirs.</p> <p>The Chief Justice and Justices Cox and Merrick sitting*.</p>

This was a suit for divorce a vinculo. The case, which was heard on petition, answer and proofs, is stated in the opinion.

<p>1. A promissory note given by a married woman is at common law absolutely void, and so also is a judgment confessed by her.</p> <p>2. A joint judgment which is void as to one of the parties is void as to all.</p> <p>The Chief Justice and Justices James and Merrick sitting.</p>

<p>1. Where no cause of action is stated in the original declaration, but is shown for the" first time in an amendment thereof, a plea of the Statute of Limitations relates to the time of the filing of the amendment. Affirming Johnson vs. The District, 1 Mackey, 427.</p> <p>2. Where, however, the original declaration states a cause of action, but does it imperfectly and thereafter an amendment is filed, a plea of the Statute of Limitations will relate to the time of the filing-of the original declaration.</p> <p>The Chief Justice and Justices James and Merrick sitting.</p>

<p>Partition is a matter of right between joint tenants or tenants in common of real estate, and no demand is necessary before the bringing of a suit for that purpose.</p> <p>The Chief Justice and Justices James and Merrick sitting.</p>

Motion in the Criminal Court for a new trial in a case of homicide. Certified to the General Term for hearing in the first instance. Statement oe the Case. On the 25th day of October, 1887, the defendant, Albert Green, jointly with one Fenton Webb, was indicted for the murder of James Lucas. On the 1st day of November, 1887, both were arraigned, and pleaded not guilty.

<p>This Court has no jurisdiction to restrain by injunction the prosecution of a criminal information to recover a penalty.</p> <p>The Chief Justice and Justices Cox and Merrick sitting'.</p>

<p>1. The act of Congress prohibiting a husband and wife from testifying for or against each other has no application where the wife is the substantial and material party to the action, the husband being only joined as a formal party; in such a case the wife is competent to testify in her own behalf.</p> <p>2. Where in ejectment both plaintiff and defendant claim title from a common source the plaintiff is not required to trace his title from the State.</p> <p>3. The recitals of the bill in a suit in equity brought by the defendant and subsequently dismissed are sufficient prima facie evidence for the plaintiff in ejectment to repel the presumption of title in the State, when such recitals set out a common source of title between the plaintiff and defendant.</p> <p>4. The defendant may, however, rebut such evidence by showing affirmatively that the title still remains in the State.</p> <p>6. The provisions of the act of Congress of 1819 requiring an official report of the tax sale to be placed on record in the office of the Recorder of Deeds, must first be shown to have been complied with before a tax deed can be received in evidence in ejectment; affirming King vs. District of Columbia, Mac A. & Mackey, 36.</p> <p>The Chief Justice and Justices James and Mekrioe sitting.</p>

<p>1. Under the building regulations existing in this District in 1887, a party wall cannot be erected with windows overlooking the servient land.</p> <p>2. Where such a wall has been built and the servient owner has not been guilty of laches, equity will issue its mandatory injunction directing the closing up of the openings.</p> <p>3. And the closing of such opening must not be done by mere patch work, but the filled up spaces must connect with the adjoining wall, so as to render such spaces suitable for support and for all the purposes contemplated by the right of joint use.</p> <p>4. The fact that the dominant owner stands ready to fill up such-opening whenever the servient owner desires to use the wall as a party wall, constitutes no defense, for such a wall not being within the meaning of the law a party wall, its erection creates an immediate and continuous trespass upon the adjoining owner’s land for which no adequate relief can be had at law. No laches can be imputed to the adjoining owner where it appears that he protested against the erection of such a wall during its construction.</p> <p>The Chief Justice and Justices James and Merrick sitting.</p>

<p>1. In a landlord and tenant proceeding it is sufficient if the complaint is sworn to before any person competent to administer an oath, whether he be in the District or elsewhere.</p> <p>2. On a hearing upon certiorari to a justice of the peace on a landlord and tenant proceeding the question of the jurisdiction of the Court below to entertain the complaint (the relation of landlord and tenant being denied), is to be tested by the case as made upon the record, and if the averments of the complaint show a state of facts which will create the relation of landlord and tenant, it is sufficient to sustain the jurisdiction; whether or not the proofs sustain the averments, cannot be inquired into upon certiorari; if the justice erred in his judgment upon the evidence, that is a matter for appeal.</p> <p>3. Certiorari cannot be resorted to to fulfill the functions of an appeal.</p> <p>The Chief Justice and Justices James and Merrick sitting.</p>

Motion to dismiss suit. Certified to the General Term for hearing in the first instance. Statement oe the Case. This was an action brought to recover the unpaid balance of a decree of this Court.