Volume 19 — District of Columbia Reports

Motion to dismiss an appeal, from an order vacating 'a fiat on scire facias issued to revive a judgment, The facts are stated in the opinion.

Motio.n for a new trial on exceptions in an- action of trespass for cutting down the wall'of plaintiff’s dwelling-house. The facts are stated in the opinion.

<p>Contracts — Oral Evidence to Vary — Right to Rescind ; Money Paid with full Knowledge Cannot be Recovered ; Assignment of Patents.</p> <p>1. When parties have entered into a written contract oral testimony of prior conversations is inadmissible for the purpose of varying its terms ; the writing, however, may be read by the light of surrounding circumstances in order more perfectly to understand the intent and meaning of the parties.</p> <p>2. Where one of the parties to a contract has had a partial benefit from it by the labors of the other parties he cannot, because of a subsequent breach, have the contract rescinded,and everything restored to him which the defendants have received under it; his remedy-is an action for damages.</p> <p>3. Where money claimed by the plaintiff is paid in his presence, with his concurrence, and with full knowledge of the facts it cannot be recovered.</p> <p>4. Where certain patents are assigned under an agreement that the assignees are to work the patents, and the assignees work some of them and abandon others, the assignor is 'entitled to a re-assignment of the abandoned patents.</p>

Motion by defendant for a new trial on exceptions taken in an action against a married woman on a promissory note executed by.her. The facts are stated in the opinion.

Hearing on a demurrer, and subsequently, on a return, to a petition for mandamus against the Secretary of the Treasury to compel him to deliver to the relator a draft assigned to him and retained by the Secretary. The facts are fully stated in the opinion.

<p>Husband and Wife ; Note of Wife; Pleading ; Wife as Agent of Husband.</p> <p>Where suit is brought against the husband upon a note executed by his wife, but alleged in a special count to have been given by her as agent and' trustee for her husband, and on the trial no evidence is offered that the note was executed by her in such capacity, there can be no recovery either upon such count or upon the common counts.</p>

Appeal by defendant from an order overruling a motion in arrest of judgment on a verdict of $3,000 damages for death of plaintiff’s intestate. The pacts are sufficiently stated in the opinion.

<p>Appeal from a judgment sustaining a demurrer to defendants’ pleas.</p>

<p>. Motion by defendant for a new trial on exceptions. Judgment reversed.</p> <p>The pacts are stated in th<p opinion..</p>

Hearing in the first instance in General Term, on a return to a petition for mandamus to the Commissioners of the District of Columbia commanding them to issue or cause to be issued to the relators a retail liquor license. The facts are stated in the opinion.

<p>Suit on Guardian’s Bond; Usees or Equitable Plaintiffs ; Pleading ; Statute of Limitations.</p> <p>1. Where a guardian’s bond is executed under statutory authority to the United States the legal plaintiff in a suit upon such bond is the United States ; the fact- that there are two or. more interested as usees or equitable plaintiffs does not render the bond a joint covenant; therefore, although the suit may be dismissed as to one of them it will continue for the benefit of the others.</p> <p>2. Where in the original declaration a good cause of action is defectively stated, an amendment which does not introduce a new cause of action but merely corrects the defective statement does not admit of the application of Statute of Limitations if the claim was not barred when the suit was commenced.</p> <p>3. The plea of the Statute of Limitations against one of the beneficiaries of a guardian’s bond may be sustained without affecting the rights of the others.</p> <p>4. The six years’ saving made applicable to guardian’s bonds by the Act of 1798 need not be specially replied to a plea of the statute where the facts which would be an answer to the plea appear on the face of the declaration.</p>

<p>Motion for a new trial on a bill of exceptions in an action on a promissory note against two joint defendants.</p> <p>The pacts are stated in the opinion.</p>

Motion by the plaintiffs in these cases to direct the clerk to enter the judgments on the mandates from the Supreme Court with interest thereon. Heard in the General Term in the first instance. The pacts are stated in the opinion.

These were motions for new trials in two suits brought by Jones a$d Stewart, respectively, against the Pennsylvania Railroad Company, the Baltimore and Potomac Railroad Company, the Virginia Midland Railroad Company, the Alexandria and Fredericksburg Railroad Company, and the Alexandria and Washington Railroad Company. The Maims were for damages for injuries received bjr reason of the alleged negligence of the defendants. Ti-ie facts are stated in the opinion.

Hearing in General Term in the first instance of a demurrer to a bill of review, the original bill having been filed to remove a cloud from the title to real estate. The Facts are stated in the opinion.

Motion by defendant for a new trial on a bill of exceptions and case. Judgment reversed, unless plaintiff remit ■one-half of the verdict of $3,000.

<p>Statute of Limitations in Actions for, Injuries to the Person.</p> <p>The limitation upon an action for injuries to the person by reason of' defendant’s negligence, whether brought in trespass or on the. case, is, in this District, three years.</p>

Petition for a mandamus against the Commissioner of Patents requiring him to furnish the relator with a certified copy of an application for letters patent. The facts are stated in the opinion.

<p>Lottery Tickets ; Sale op ; Police Court ; Jurisdiction.</p> <p>1. Violations of the Act of April 29, 1878 (20 Stat., 39), to prevent the sale of policy or lottery tickets in the District of Columbia, are triable in this court; the Police Court has no jurisdiction of such offenses.</p> <p>2. The Police Court has no jurisdiction over those misdemeanors which by the course of the common law or by reason of the-gravity of the offense are properly triable by jury.</p>

<p>Commercial Paper ; National Banks ; Post-Dated Checks ;■ Res Adjudicata.</p> <p>1. As a general rule whoever undertakes to deal with commercial paper in a manner outside of the usual course of business does so at his own risk.</p> <p>2. The paying teller of a national bank has no power without the’ sanction of the bank to receive after banking hours a postdated check and to agree, for the convenience of the holder, that he will hold it until the day it is presentable and will then cause an account to be opened by the bank with the holder and the amount of the check placed to his credit so that it may be drawn against. In making such an arrangement he is the agent of the holder and not of the bank.</p> <p>3. Although on the hearing of a second appeal this court may be of the opinion that its former ruling in the case was erroneous it will not grant a third trial because the court below followed that ruling on the second trial. Whether erroneous or not it must be considered the law of the case.</p> <p>4. The rulings in this case on a former appeal, 6 Mackey, 358, considered and explained.</p>

<p>Invention; Want of Novelty; Prolongation op Monopoly; Reynier Battery.</p> <p>1. Where an applicant for letters patent claimed to have invented an improvement upon devices for propelling vehicles by electrical energy through storage-batteries carried by the vehicles moved, and not connected with any arrangement of wires outside of the carriage, and it appeared that one constituent of the alleged new invention was a secondary or storage battery upon which applicant had received letters patent prior to the filing of the present application; and it further appeared that the mechanical arrangements for applying the power were old, and that the result, viz., the movement of vehicles by electrical storage batteries, was old: Held, That a patent for said improvement was rightly refused by the Patent Ofiice for want of invention, although said patented storage battery of applicant might be superior to all others of its kind for the purpose, and rendered the device commercially practicable.</p> <p>'2. Held, further, that otherwise the monopoly granted by applicant’s patent upon Ms storage-battery would be prolonged.</p> <p>3. Held, further, that the so-called Reynier battery was intended for use as secondary battery.</p> <p>4. Held, further, that the propulsion of vessels through water by such a secondary battery came within the same principle as locomotion upon land.</p>

<p>Injury to Person ; Contributory Negligence ; Evidence.</p> <p>1. In making a case of contributory negligence on the part of a plaintiff the defendant may use the evidence offered by the plaintiff.</p> <p>2. And he has also the same right, for the purpose of establishing contributory negligence, to rely tfpon circumstantial evidence and upon legitimate deductions from the facts directly proven as he would have in establishing any other ultimate fact, and the jury have a right to find such deductions as facts, when the facts directly proven tend, according to the evidence of common observation and experience, to prove the deduction.</p>

<p>Damages in Trover, Measure of.</p> <p>1. A plaintiff in trover may receive back the article over which acts , of ownership have been exercised by another, and recover ÜW such damages as he has actually suffered; but if the damages , ... are so serious that he does not consider the property worth r '"l anything, he may refuse to receive it back and recover for the entire value.</p> <p>'2. If plaintiff places a bicycle in the possession of defendant to sell for him and tells the latter to use it if necessary to make a sale and “show it to the boys,” defendant is not liable for injuries to the machine resulting from such use if the use were made in good faith for the purpose of making a sale, and it is immaterial that he combined considerations of pleasure to be derived from riding the machine.</p>

Motion by defendant for a new trial on a bill of exceptions in an action by an administrator to recover damages-for the death of his intestate. The facts are stated in the opinion.

Motion by plaintiff for a new trial on a bill of exceptions-in an action of ejectment. Ti-ie pacts are stated in the opinion.

<p>Injuries to Person ; Street Oars ; Concurrent Negligence of Plaintiff and Defendant ; Anticipation by Defendant of Plaintiff’s Negligence.</p> <p>1 Where one hails a street ear, the conductor and driver have a right to assume that he desires the car stopped to enable him to get on and that he does not intend to get on while it is in motion.</p> <p>2. Even if they believe that he entertains getting on the car whilst it is in motion and they doubt his ability so to do, they owe him no such duty as to warn him off; he is the best judge of the risk of such an act, and the responsibility for it rests solely upon him.</p> <p>-3. A plaintiff though guilty of concurrent negligence may recover if it appear either that the defendant might, by a proper degree of caution, have avoided the consequence of the injured party’s neglect, or the latter could not, by ordinary care, have avoided the consequence of the defendant’s negligence. In ■such cases, however, time is to be allowed for the party to be•come aware of the conduct and situation of the other, for neither could be required to anticipate the other’s negligence.</p>

Motion to quash a petition for a writ of certiorari commanding the Commissioners of the District to certify the record in an alleged special assessment. Heard in General Term in the first instance. The pacts are stated in the opinion.

Hearing in-General Term in the first instance, on a bill filed to settle rights of parties claiming interest on certain legacies. The facts are stated in the opinion.

Hearing in the General Term in the first instance on a writ of habeas corpus. The relator had been tried in the Police Court upon an information charging him with engaging in the business of a peddler, in selling from house to house an article of merchandise without first having obtained a license. Pie was convicted and fined $55, and in default of payment having been committed to the custody of the Intendent of the Washington Asylum, he, thereupon, sued out this writ.

<p>Practice ; Bills of Exception ; Prolongation or Term for Settlement of.</p> <p>1. The court has no power to prolong a term for the purpose of hearing a motion for a new trial, but it may continue the motion to a certain day, although that day happens to fall within the next term, and then act upon it as of the term in which the motion is heard.</p> <p>2. A noting on the minutes of the court below that an appeal has been taken, is a sufficient taking of an appeal from the special to the General Term. 3. The special term may be prolonged by the presiding judge to a fixed day for the purpose of settling bills of exceptions, and on the day so fixed he may make an order further prolonging the term for such purpose, and so on until the bills are settled.</p>

Appeal by plaintiff from an order of the special term denying a motion for judgment of condemnation of a writ of attachment and garnishment. The pacts are stated in the opinion.

<p>■Illegal Arrest; Liability op Master por. Unauthorized Arrest by Servant.</p> <p>A person employed and paid by a market company to collect rents and keep order in the market house, but without authority from, the company to make arrests, at the same, time held an appointment as special officer of the Metropolitan Police Force with authority to make arrests as such, but received no pay in the latter capacity : Held, That an arrest made by him in the market house was to be regarded as made in his character of police officer, and if the arrest were illegal and wanton the company were not liable.</p>

<p>Appeal from a judgment on demurrer to a plea in an action to recover damages for injuries to the wife.</p> <p>The pacts are stated in the opinion.</p>

Motion by plaintiff for a new trial on a case and bill of exceptions in an action to recover damages for an alleged unauthorized use of the public streets by a railroad company. The facts are sufficiently stated in the opinion.

<p>Appeal from a decree dismissing a petition for divorce.</p>

Motion by plaintiff for a new trial on a bill of exceptions, in an action of assumpsit by a real estate broker to recover commission for the sale of land. The facts are stated in the opinion.

Motion by defendant for a new trial on exceptions in an action upon a promissory note. The facts are stated in the opinion.

These causes were consolidated and heard together, the main question being upon an appeal from an order of the Special Term refusing to vacate a sale made by trustees for default under a deed of trust executed to secure the payment of a debt. Ti-ie facts are stated in the opinion.

<p>Suits against Unknown Heirs ; Order op Publication ; Form op.</p> <p>An order of publication against unknown heirs under the 4th Section of the Maryland Act of 1792, Oh. 41, should be in accordance with Rule 20 of this court.</p>

<p>Pleading ; Practice ; Rejoinder ; Departure ; Statute op Limitations.</p> <p>1. When a demurrer to the replication is overruled, and the defendant rejoins the Statute of Limitations, which in turn is demurred to, and this demurrer is certified to the General Term for hearing in the first instance; this will take up the whole-record and the court will examine whatever errors are apparent upon its face.</p> <p>2. When the declaration • alleges the delivery of a chattel to the defendant upon a promise to return when called for, and the plea, sets up that the chattel was pledged to secure a debt which is-still unpaid, it is a departure to reply that the pledge was obtained by fraud and a demurrer to the replication should be sustained.</p> <p>3. The plea of the statute of Limitations must be interposed at the: earliest stage of the pleading which discloses its applicability.</p>

Motion by the caveators for a new trial on a bill of exceptions taken on the trial of issues from the Probate Court contesting the validity of a will. The facts are stated in the opinion.

Appeal and motion for a new trial on a bill of exceptions and case, the trial being on issues from the Orphans’ Court involving the validity of an alleged will. The facts are stated in the opinion.

<p>Motion for a new trial on a bill of exceptions in an action to recover damages for an alleged nuisance.</p> <p>The pacts are stated in the opinion.</p>

Motion by plaintiff for a new trial on a bill of exceptions in an action for money paid by the plaintiff for the defendants at their request. The pacts are stated in the opinion.

Motion by plaintiff for a new' trial on a bill of exceptions and case in an action to recover damages for an assault and battery.' The facts are stated in the opinion.

Motion by defendant for new trial on a bill of exceptions and case stated in an action of replevin against the Marshal of the District for a wrongful levy upon plaintiff’s property under an execution against another. The pacts are stated in the opinion.

<p>Appeal from a judgment sustaining a demurrer to a declaration in an action for libel.</p> <p>Ti-ie pacts are stated in the opinion.</p>

Motion by defendant for a new trial on a bill of exceptions in an action on the case to recover damages for personal inj uries. The facts are stated in the opinion.

Appeal by defendant from a judgment rendered on an agreed statement of facts in an action of replevin. The eacts are stated in the opinion.

Motion by defendant for a new trial on a bill of exceptions in a trial of an indictment for murder. The facts are stated in the opinion.

Petition to the court in General Term in the first instance for a rule against'a member of the bar to show cause why he should not be required to deliver up certain promissory notes and certain money alleged to have been obtained by him in his professional capacity as attorney for the petitioner. 'The pacts are sufficiently stated in the opinion.

Motion by plaintiff for a new trial on a bill of exceptions in an action to recover damages for expelling plaintiff from defendant’s cars. The case is stated in the opinion.

Apheal from a decree dismissing a bill filed for an injunction, etc. Statement of the case by Mr. Justice Hagner : This bill, filed on September 26, 1886, prays (1) the appointment of a receiver to take charge of the books and property of the Brush-Swan Electric Company, and hold the same subject to the orders of the court; (2), that a decree passed in Equity Cause No. 9949, in which Lei ter was complainant and the Brush-Swan Company and others were defendants, should be…

<p>Motion for a new trial on a bill of exceptions, the accused having been convicted of murder.</p> <p>The pacts are stated in the opinion.</p>

Hearing on a- writ of habeas corpus. Heard in the General Term in the first instance. The pacts are stated in the opinion.

<p>Lease with Eight to Quarry, Oonstruction op.</p> <p>1. A lease of land was executed giving the right to quarry soapstone supposed to be thereon, the rent to vary according to the amount of stone quarried, but with a fixed minimum to be paid at all events. Afterwards it. was discovered that no marketable soapstone was on the land: Held, That this did not make the lease inoperative without an express condition to that effect, although the supposed presence of soapstone in the land was the only inducement for making the lease, since by its terms a fixed minimum rent was to be paid at all events.</p> <p>2. There is a distinction between the failure of the consideration, i. e., the subject-matter of a contract, and the failure of the inducement 'which led to it; in the latter case the law will refuse to supply a condition by implication.</p> <p>3. The case at bar, which was a lease of the land itself, with a fixed minimum rent, distinguished from those cases where the contract gives only the right to dig or quarry on the land.</p>