Volume 18 — District of Columbia Reports

Appeal by a purchaser at a judicial sale from an order requiring him to comply with the terms .of sale. The Pacts are-stated in the opinion.

<p>Appeal from an order of the special term overruling a motion by Henry M. Marshall and others, defendants, for leave to file supplemental answers.</p> <p>The Facts are stated in -the opinion.</p>

<p>1. Whenever a reasonable suggestion of its necessity for the purposes of evidence is made by the person requesting it, the Commissioner of Patents cannot lawfully refuse to furnish a certified copy of an abandoned or rejected application for a patent; the right to be furnished such a copy is given the public by statute, and the refusal thereof entitles the applicant to the writ of mandamus against the Commissioner to compel a compliance with such request.</p> <p>2. An attorney at law who has requested such a copy in behalf of his client and been refused has such an interest in the subject-matter as entitles him to commence proceedings in his own name as relator for the writ of mandamus.</p>

<p>Appeal from an order overruling a motion to quash an attachment issued upon a money decree.</p> <p>The Facts are sufficiently stated in the opinion.</p>

<p>1. A testator may direct that the same discretionary power which he has given to trustees designated by himself shall belong to the trustee appointed by the court in case of a vacancy; but if he omits to do so, a discretionary power will be construed to be personal.</p> <p>2. Where a sale has been made by a trustee appointed by the court, all parties interested in the estate are entitled to a hearing before the sale is finally ratified.</p> <p>3. The rule which applies to this court in regard to appeals is entirely different from that applying to the Supreme Court and the circuit courts of the United States; in this court an appeal lies from any order involving the substantial rights of the parties.</p> <p>4. An order overruling a motion to vacate an order ratifying a trustee’s sale is an appealable order.</p> <p>5. Where a purchaser at a trustee’s sale having been notified of proceedings being taken to vacate the sale, voluntarily permits such proceedings to go on to a final decree without his intervention, it will be too late to come in after such decree has been affirmed.</p>

This case and The Matter of the Estate of Weltha A. Emmons, deceased, being cases relating to the same subject-matter, were heard and decided together. The first an appeal from the Equity Court, and the other from the Orphans’ Court. The Facts are stated in the opinion.

<p>1. Where slaves with the consent of their masters lived together in the State of Maryland as husband and wife, such a union, according to the custom of that State, was sufficient to establish a marriage between the parties. Consequently, under the act of Congress of February 6, 1879, the issue of such a marriage must be regarded as legitimate in the District of Columbia for all the purposes of descent and inheritance.</p> <p>2. Where the defendant in a partition suit has no interest in the moiety claimed by the complainants, the court will not scrutinize very closely the weight of the t estimony introduced upon the issue raised as to the title of the complainants as heirs of the admitted former owner.</p>

<p>The president of a corporation organized under Section 554 of the Revised Statutes relating to the District of Columbia executed without the authority or direction of the stockholders an assignment of all its assets for the benefit of creditors. Held, That the assignment was void not only because not made by authority of the stockholders, but it would seem also because a corporation has no power to make an assignment for the benefit of creditors.</p>

<p>1. The city councils of the city of Washington were deprived of every power over the streets of that city from and after the 25th of April, 1S71, the date of the organization of the Board of Public Works.</p> <p>2. A void assessment for street improvements is not validated by a mere request of the owners of the property to the Board of Public Works to revise the same, the Board never having had any legal connection with such assessment.</p> <p>3. A tenant in common is entitled to have a legal incumbrance and cloud upon the common property removed at his own suggestion ; it is not necessary to join his co-tenant in the proceeding.</p>

<p>Where defendant, one of a firm of real estate dealers, is decreed to account to his co-partners for profits made in joint operations with a third party in real estate without "the knowledge or consent, and in fraud of the rights of his co-partners, and on such accounting complainants, by such evidence as they are able to obtain, trace into defendant’s hands more than sufficient money derived from such operations to pay him for his share of the profits thereof, the burden is upon him to show by affirmative proof that as to certain of said operations he never received his share of the profits; and while it may be his misfortune it is no answer that he cannot now disclose and establish a full and complete account of the joint operations and of the adjustment of the accounts between himself and his illegal partner, so as to rebut the presumptions growing out of the evidence offered.</p>

<p>Appeal from a decree of divorce.</p> <p>The Pacts are stated in the opinion.</p>

<p>Where executors have settled their estate, but retain control thereof as trustees under the will, in a suit in which judgment must be rendered for or against them as such trustees, and not as executors, either party may testify; such a suit is not within the provisions of Section 858 R. S. Ú. S., and Section 876 R. S. D. 0.</p>

Proceedings in certiorari to quash a special assessment for street improvements. The Pacts are sufficiently stated in the opinion.

Hearing on certiorari brought to procure the annulment of certain special assessments of taxes by the District of Columbia against the petitioner’s property. The Facts are sufficiently stated in the opinion.

Hearing on certiorari brought to procure the annulment of certain special assessments of taxes by the District of Columbia against the petitioner’s property. The Facts are sufficiently stated in the opinion.

<p>1. An indictment under Section 5467, B. S. U. S., charging the accused with having in his possession a letter containing five certificates, each “ being of the deposit of one silver dollar with the Treasurer of the United States”'is sufficient, although upon the certificates themselves the words “in the Treasury” are used.</p> <p>2. When a witness is cross-examined upon a matter not directly bearing upon anything brought out on the examination in chief, it is within the discretion of the justice trying the cause to determine how far such cross-examination shall be allowed.</p> <p>3. Where the portion of the charge excepted to, if taken literally, gives no point to the exception, the language of the court will be so construed as to give it a meaning consistent with the general tenor of the whole charge.</p> <p>4. Whether Section 803, B. S. D. C., which enacts that it shall not be necessary that the justice trying the cause shall sign and seal this exception, applies to criminal cases quarts.</p>

Appeal by complainant from a decree in equity construing a contract, on a bill filed for an account. The Case is sufficiently stated in the opinion.

<p>1. Where in a will a trust is created and no person is named to perform the trust, the executor will be charged with its performance, if upon the whole will such appears to have been the intention of the testator.</p> <p>2. Where a testator makes his debtor executor of his will and directs the money due from him to be invested in land for the use of another, the executor will be charged with the duty of making the investment if no other person is named.</p> <p>3. Where a debtor is appointed executor of his deceased creditor the debt at once becomes cash assets in his hands; if the debt is not yet due it becomes assets as soon as it matures.</p>

This was a bill of interpleader filed by a trustee to settle the rights of claimants of the estate. The case was once argued and decided (6 Mackey, 397), but because of the importance of the principles involved a rehearing was granted before a full bench. STATEMENT OE THE CASE.

<p>1. It is not necessary that the matter appealed from should be a final order, if it be one involving the merits of the action or proceeding.</p> <p>2. An order refusing to tax an attorney’s fee does not involve the merits of the action or proceeding, and is not, therefore, appeal-able.</p> <p>3. Where certiorari proceedings have been dismissed by the petititioner, costs to the defendant are not allowable.</p>

<p>1. Where in an action of ejectment the acts and conversations of the testator are given in evidence for the purpose of ascertaining the meaning of an uncertain description of lands devised, the verdict of the jury will not be disturbed unless it be clearly against the weight of the evidence.</p> <p>2. While a grantor is estopped to deny that his deed actually conveyed what it purports on its face to convey, he is not estopped to deny that it did purport on its face to convey the interest alleged by the grantee.</p> <p>3. Although a mortgage be a legal title, it is not the fee simple absolute of the land, and language in a deed which might be sufficient to convey the latter, will nevertheless be construed as purporting-to convey only the former if that intention is shown by recitals or by anything within the four corners of the deed.</p>

<p>1. Where a bill charges fraud in fact, and plaintiff fails in his proof he cannot be aided under the prayer for general relief.</p> <p>2. But this doctrine does not prevent the court from considering other allegations in the bill of such serious irregularities as would, if true, establish that there was no legal sale at all.</p> <p>3. Before a sale will be set aside for inadequacy of price alone it must appear that the price was so grossly inadequate as to shock the moral sense, and create at once a suspicion of fraud. 4. An assignment of a right to file a bill in equity for a fraud committed on the assignor is void, and a bill filed by the assignee for such purpose should be dismissed.</p> <p>5. But if it appears that the fund is in court and the court have jurisdiction over it, relief will be granted so far as to give to the assignee such share thereof as he may be otherwise equitably entitled to.</p>

<p>1; Services performed by plaintiff for the testatrix during her lifetime in expectation of receiving a legacy will not deprive him of his right to bring suit for such services against the estate of the deceased: nothing short of an understanding between the parties would have that effect.</p> <p>2. The provision of Sec. 18, subch. 8, of the Statute of Limitations, providing that claims against an executor or administrator shall be prosecuted within nine months, &c., being an exceptional abbreviation of the general Statute of Limitations, should receive a construction almost penal in strictness.</p> <p>3. Hence it does not apply to a case where the claim originally rejected is different in form from that sued on; as where the original claim was for a certain sum for services rendered as attorney and trustee, while that sued on is for a less sum and for services as attorney only.</p> <p>4. In equity the Statute of Limitations being regarded rather as one of presumption than of repose, the court will lay hold of any facts in the case which would show it to be inequitable to apply the bar with the same rigor that would prevail in a court of law.</p>

<p>1: The mechanic’s lien act of 1884 does not extend to the subcontractor of a subcontractor so as to give the latter a lien upon the property. t</p> <p>2. Spalding vs. Dodge, 6 Mackey, 289, explained.</p>

Motion in the Criminal Court for a new trial, certified to the General Term for a hearing in the first instance. The Facts appear in the opinion.

<p>In an action of trespass, the court below instructed the jury as to the measure of damages in case the defendant was found guilty; the jury found the defendant not guilty. Held, that even if the court were wrong in its instruction as to the measure of damages, the verdict should not be disturbed inasmuch as the finding of not guilty showed that the consideration of the question of damages was manifestly never reached by the jury.</p>

<p>Where the instructions of the court are not justified by the testimony as it appears in the bill of exceptions a new trial will be granted.</p>

<p>No appeal lies to the General Term from a decree or order merely-respecting costs and expenses.</p>

<p>1. In a criminal case tried on information in the Police Court, where an appeal is taken to the Criminal Court, and the defendant is acquitted, there is no provision of law by which he may have judgment for costs and witness fees.</p> <p>2. The hardship of such cases may be materially reduced by the application of Section 839, Revised Statutes District of Columbia, which provides that the judge trying the case may allow a necessary number of witnesses for defendant, the fees and costs of service to be paid in the same manner as Government witnesses are paid.</p> <p>3. The defendant is entitled to a return of a deposit made under Rule 128, regulating appeals from the Police Court.</p>

<p>1. On a petition for divorce, filed by the husband, on the ground of willful desertion and abandonment, the petition will be dismissed where it appears that the wife left with the consent of the husband.</p> <p>2. So, even where it appears that the departure of the wife was caused by mistaking the language of the husband as a consent to the departure, yet the bill will be dismissed if it appears that no effort was made to rectify the wife’s error by inviting her to return.</p>

<p>1. The proof of residence in this case reviewed and held to meet the statutory requirement that the party applying for divorce shall have “ resided within the District for two years next preceding the application.”</p> <p>2. If a person has actually removed to another place with an intention of remaining there for an indefinite time, and as a place of fixed present domicile, it is deemed his place of domicile notwithstanding he may entertain a floating intention to return at some future period.</p> <p>3. A residence out of the domicile of origin repels the presumption of its continuance, and casts upon him who denies the domicile of choice the burden of disproving it.</p> <p>4. Where a person lives is taken prima facie to be his domicile until other facts establish the contrary.</p> <p>5. On the evidence in this case, held, that the defendant was domiciled in Washington.</p>

<p>On a creditor’s bill praying tbe sale of decedent’s real estate a decree was passed first assigning to tbe widow a portion of tbe property wbicb sbe had agreed to accept as her dower and directing a sale of the remainder. At tbe sale the property brought a much larger price than had been anticipated by the parties, whereupon the widow petitioned for a re-assignment of her dower alleging that the first admeasurement had been accepted by her under misapprehension as to the real value of the estate. Held, on demurer, that the petitioner was entitled to a re-assignment.</p>

<p>1. A special assessment should be for the street improvement specified in the contract, and for no other.</p> <p>2. The power of the District Commissioners to revise special assessments of the Board of Public Works (Act of June 19, 1878), does not include the power to add charges for improvements not named in the original assessment.</p>

Motion by plaintiff for a new trial on a bill of exceptions in an action for damages. The Facts are sufficiently stated in the opinion.

<p>Appeal from a decree in equity upon a bill filed to obtain an assignment of dower.</p> <p>The Case is stated in the opinion.</p>

<p>1. - Where the property of a stranger to the writ has been levied on, a demand is not necessary before bringing replevin.</p> <p>2. Where personal property has been conveyed by a chattel deed of trust to secure an indebtedness and is afterwards, while remaining in the grantor’s possession, levied on to satisfy an execution, it is not error, on replevin brought by the trustee, to refuse to instruct the jury that if they believe the cestui que trust allowed the property to remain in the grantor’s hands for an unreasonable time after the maturity of the indebtedness a presumption was raised that the debt was paid or that the deed of trust was held unreleased only as a protection against other creditors of the grantor; it is sufficient if the court instruct the jury that if they believe the indebtedness recovered to be bona fide the plaintiff is entitled to recover.</p>

<p>1. Where a defect in a street pavement will be dangerous when covered with ice or snow, and the defendant, a municipality, has knowledge of that fact, the occurrence of a snow-storm is immediate notice to it that the pavement, at that point, is in a dangerous condition.</p> <p>2. Where a defective pavement is not rendered practically impassable by reason of such defect, a person passing along the same is not guilty of contributory negligence unless there is an omission to exercise proper care.</p> <p>3. In an action to recover damages for injuries received by reason of the defendant’s negligence, it appearing that plaintiff was discharged by her employer by reason of disability resulting from the injury which prevented her from performing her duties, evidence of the salary received by her in such employment is competent as tending to show the capacity for earning income which the plaintiff possessed and was exercising at the time of the injury.</p> <p>4. So, evidence of value of the work which plaintiff has been able to do since the injury is competent for the purpose of showing how far plaintiff’s capacity to do work has been impaired by reason of the injury.</p> <p>5. Where there is a general exception to the admission of testimony if the testimony is competent for any purpose the exception will be overruled.</p>

<p>1. In the absence of an express repeal a later statute may be held to have worked a constructive repeal of an earlier one.</p> <p>2. This may happen in two classes of cases; first, where it plainly appears, upon a comparison of the old and new legislation, that it was the intention of the legislature to take up de novo the whole of the subject to which it related, and to make in the new statute whatever provision it intended to allow concerning that subject; second, the courts must construe a later statute as intending a repeal of all earlier leglislation which they find to be repugnant to it.</p> <p>3. A statute cannot be held to be repealed for repugnancy if the new statute leaves any opportunity for its application.</p> <p>4. The Act of February 25, 1879, providing for the holding of two terms of the Circuit Court, does not interfere with the operation of the Act of June 23, 1874, when only one term of the Circuit Court is being held.</p>

<p>1. Where a solicitor has entered an unauthorized general appearance for the defendant and afterwards a decree pro eonfesso is taken for want of an answer, the defendant may, by motion and a special appearance for that purpose only, have the general appearance stricken out and the decree pro oonfesso vacated.</p> <p>2. An order of the court below, refusing to extend the time for taking testimony, is not appealable.</p> <p>3. It seems that when a special appearance is entered for the purpose of having an unauthorized general appearance stricken out on motion, the court cannot order a commission to issue to take testimony for the purpose of ascertaining whether the general appearance was authorized; such an order presupposes the entry . of a general appearance, and assumes the very point in issue.</p> <p>4. An appearance by counsel, who, it is alleged, had no authority to waive process and defend a suit may be explained ; such an appearance, unless authorized, does not bind the party appeared for, and a judgment or decree rendered in consequence of it is a nullity. Such want of authority may be proved by the attorney himself.</p> <p>5. The fact that a notice of motion and a copy of the proposed motion had been served upon plaintiff’s counsel, does not, unless the motion has been actually filed in court, constitute such an' appearance as waives the necessity for process when it appears that the proposed motion was abandoned and never acted upon.</p> <p>6. A mere agreement to pay out of a particular fundís not sufficient to establish an equitable lien. There must be an appropriation of the fund pro tanto, either by giving an order or by otherwise transferring it in such a manner that the holder of the fund will be authorized to pay the amount directly to the creditor without the further intervention of the debtor.</p> <p>7. An assignment by a client to his attorney of a portion of a claim against the United States, which claim the attorney is engaged in prosecuting, comes within the mischief and the letter of the Act of Congress of 1853, prohibiting assignment of claims against the United States.</p>

Appeal by defendants from a decree of the special term on a bill filed to procure the release of a deed of trust and the surrender of the notes secured thereby. STATEMENT OE THE CASE.

Bill to quiet title. Certified to the General Term for hearing in the first instance. The Facts are sufficiently stated in the opinion.

Heard in the General Term in the first instance. Bill filed by George and, Jules De Geoffroy, by their next friend, against E. Francis Riggs and Medora, his wife, Alice L. Riggs, Jane A. Riggs, and Cecilia Howard for a sale in partition of certain real estate owned by T. Lawrason Riggs, a citizen of the United States, and who died in this city January 19, 1888.

Hearing' in the first instance on bill and cross-bills filed to settle rights of parties to certain stock certificates. The Facts are sufficiently stated in the opinion.

<p>1. In a suit to establish a title derived from condemnation proceedings all the facts necessary to the jurisdiction to condemn must be established.</p> <p>2. But when the relief sought is the annulment of the condemnation the burden is on the party asking such relief to show that the proceedings were illegal.</p> <p>3. B, being owner of a lot of ground, a portion of it was condemned as an alley. Afterwards complainant conveyed the lot to C., describing it as bounded by said alley. At a still subsequent period B, by bill in equity attacked the condemnation proceedings as void. Held, That B’s conveyance to O, while it did not dedicate ■ the alley to the public, gave to C and his assigns the right to enjoy the alley as an easement, and, therefore, even if the .condemnation proceedings were void equity would not interfere.</p>

The bill in the case was filed by Joseph Kleindienst and his wife, Mary, against the trustees and officers of the Second Washington Co-operative Building Association for an account and release of deeds of trust given to secure advances. The 'association was organized in September, 1874, and its object is to aid stockholders in procuring homesteads, according to a plan set forth in a constitution.

The defendant, McBride, was convicted upon an indictment found jointly against her and one McFarland, charging them, under Section 1151 R. S. D. 0., with setting on fire and burning a certain house in the city of Washington. The indictment contained four counts, and the defendants were convicted upon the third and fourth, having been found not guilty upon the first and second.

Motion in the Orphans’ Court by co-executrices to have one of their number removed from her office because of failure to join with them in the inventory or to file one of her own within three months from the date of the letters testamentary. Certified to be heard in the General Term in the first instance. The Facts appear in the opinion.

Heard in the General Term in the first instance on a bill filed to cancel and set aside certain conveyances of real estate. STATEMENT OF THE CASE.

Motion to dismiss the appeals in these cases and to strike the causes from the calendar. These cases were actions brought to recover damages for mj uries received by plaintiffs in a railroad accident. Verdiets were rendered for $10,000 and $15,000, respectively.

Appeals and cross-appeals from orders passed by the Special Term in equity in two cases. STATEMENT OE THE CASE. In the first of these cases, No. 11,238, a bill was filed by Lamon and Black against McKee, the executor of Cochrane, and the executors of the estate of Thomas A. Scott.

<p>1. The payment of money to an official to avoid an onerous penalty, though the imposition of the penalty may he illegal, is such an involuntary payment as entitles the party paying it to maintain an action for its recovery.</p> <p>2. In such an action it is not necessary for plaintiff to show that he made the payment under an immediate and urgent necessity to avoid the infliction of the penalty.</p> <p>3. Whether the payment was voluntary or involuntary, is a question of fact to he determined like other questions of fact and not by arbitrary rule.</p>

<p>Appeal from a decree refusing an injunction.</p> <p>The Facts are stated in the opinion.</p>

<p>Motion for a new trial on a bill of exceptions taken in an action of ejectment.</p>

Bill in equity by the United States to enjoin an alleged illegal encroachment of a private building upon public land. The Facts are stated in the opinion.

Bill in equity brought in the name of an infant by his guardian for an account, and an appeal from a decree upon exceptions to a report of the auditor.

Bill to annul a tax certificate. Th'e case was heard on an appeal from the decree below. The Facts are sufficiently stated in the opinion.

Motion to dismiss an appeal from an order of the court below granting a new trial upon issues of the Probate Court to try the validity of a will. The Pacts are sufficiently stated in the opinion. .

Petition for mandamus against the Commissioner of Pensions commanding him to allow an increase of pension. Heard in the General Term in the first instance. The Facts are stated in the opinion.

<p>Motion by plaintiff for a new trial on a bill of exceptions.</p> <p>The Facts sufficiently appear in the opinion.</p>

<p>Motion for a new trial on exceptions taken in an action to recover damages to plaintiff’s building.</p> <p>The Facts are sufficiently stated in the opinion.</p>

<p>Appeal from a decree dismissing a bill filed to obtain tlie cancellation of a deed of real estate alleged to have been obtained for a grossly inadequate consideration, and by fraudulent misrepresentations. -</p> <p>The Facts are sufficiently stated in the opinion.</p>

Motion by defendant for a new trial upon a bill of exceptions and case, in a suit to recover damages for alleged defect in plumbing done by defendant for the plaintiff at his dwelling house. The facts necessary to an understanding of the points decided appear in the opinion.

<p>1. Under an agreement to pay a sum of money out of the proceeds of a claim of the promisor against the United States as soon as the same shall be collected, there is no legal obligation on the part of the promisor to make known to the promisee the fact of the collection of the fund, and his failure to do so will not prevent the running of the Statute of Limitations from the date of its collection.</p> <p>2. In such a case the rule is that unless by virtue of the contract itself, or some relation of the parties, the defendant is under a duty to make known the fact of payment, mere silence amounting to nothing more than non-action is not such a fraud upon the plaintiff as entitles him to complain of it; but it seems it would be otherwise if he were guilty of any act the tendency of which would be to deceive the plaintiff.</p>

Motion by defendants for a new trial on a bill of exceptions in an action on an appeal bond. The Case is stated in the opinion.