Volume 2 — Appeals, District of Columbia

Hearing on an appeal from a decision of the Commissioner of Patents rejecting an application for a patent. The facts are sufficiently stated in the opinion. 1. The Commissioner erred in rejecting appellant’s claims upon the reference in Crookes’ Handbook, in that the reference does not disclose the new product discovered by the appellant, nor does it describe a process of making such a product.

<p>Patent Appeals ; Statutory Construction ; Trade-marks.</p> <p>1. An appeal does not lie to this court from a decision of the Commissioner of Patents in a controversy between rival applicants for the registration of a trade-mark; construing act of Congress of February 9, 1893, sec. 9.</p> <p>2. There is no better criterion wherewith to ascertain the meaning of the terms used in a statute, than the statute itself, or other previous or similar statutes, in which the same legislative body has given expression to its purpose.</p> <p>3. The right to a trade-mark is not created by the Federal Government, and does not emanate from it; and all that Congress has sought to do in legislating upon the subject of trade-marks, is to provide a recording act of a very limited character, the better to evidence the ownership of the right.</p>

<p>Equity of Redemption ; Cloud upon Title; Equity; Laches.</p> <p>1. An equity of redemption cannot be seized and sold, in execution of a judgment, and a Marshal’s deed made in pursuance of such a sale is a mere nullity and passes no title.</p> <p>2. A deed which is a nullity on its face does not constitute a cloud upon title which equity will remove, following Weldent/. Sticlrney, 1 App. D. C., 343.</p> <p>3. In a suit to remove a cloud upon title alleged to be created by uncertainty in the reading of the record of a deed of the property made many years before the filing of the suit, which deed, as recorded, might read either lot sevenly or lot twenty, it was held that such a question was one of fact simply, proper to be determined at law and not in equity in such a proceeding.</p> <p>4. A suit in equity to remove a cloud upon title created by a trust deed made and recorded seventy-four years before the filing of the bill, will be dismissed for the laches of the complainant and those under whom he claims, although laches were not relied upon as a defense by defendants.</p>

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, holding a law term, Under the seventy-third rule of that court in an action on an open account.

Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia, holding an equity term, adjusting the rights of the parties, in a suit brought to procure the release of a deed of trust. The Court in its opinion stated the case as follows: The complainant, Clem.

<p>Petition for the modification of the decree heretofore passed in the same cause* so as to permit an amendment of the original bill of complaint.</p> <p>Petition.</p> <p>And now come the complainants and petition the court to modify the decree in such manner as to permit them to amend the bill of complaint, and for grounds thereof, among others, state the following:</p> <p>1. They say that in fact the Vapor Fuel Company of Virginia was authorized by its charter to establish offices in other States and Territories than in Virginia, and that the said Company had its principal business office in the District of Columbia, and that most of the transactions of said Company referred to in said bill took place in the District of Columbia, and a great deal of its business was carried on in said District, and nearly all of the individual defendants reside in the said District and none of them in Virginia, and for the acts complained of against them no suit under the laws of Virginia could be brought as mentioned, and the dismissal of the bill without prejudice to a suit brought in Virginia is of no avail to the complainants, while by implication at least it would appear to be decisive as to any such suit in the District.</p> <p>2. The complainants desire to so amend their bill as not to appear to- make any claim as stockholders of the International Vapor Fuel Carbon Iron and Manufacturing Company, as organized under the incorporation laws of the-District of Columbia, for the collection of unpaid assessments under the charter obtained by them, or to make any claim against said Company or the directors thereof on account of the transactions of said Company; desiring to allege only such matters in reference to what was done by the members thereof as may be necessary to£/explain the claims which may be properly alleged against the defendants as directors of the Vapor Fuel Company of Virginia.</p> <p>3. They desire to so frame the bill as not to claim the liability of the defendant as individuals upon contracts made by them only as delinquent directors, and not to put in issue the legality of the stock or the transfer of the stock and assets issued by said Company, but only to show the wrongful and negligent acts of the individual defendants as the directors of the Vapor Fuel Company of Virginia, by which the complainants as stockholders of said Vapor Fuel Company have suffered wrong, the primary wrong being to, the Company and they being injured thereby as stockholders thereof.</p> <p>4. The complainants desire also to strike out the references to the Potomac Manufacturing Company formed to operate in the city of Alexandria, and to what was done in relation thereto.</p> <p>5. They desire to so frame the bill as not to appear to call for an account from the subordinate corporations mentioned therein any further than may be necessary to show the profits thereof for which the individual defendants as directors should account to the Company or be accountable for, on account of negligence in not realizing for the benefit of the Company.</p> <p>6. They wish to make it clear that-they had nothing whatever to do with the formation of the Vapor Fuel Company of Virginia, and knew nothing of it at the time and had no thought or purpose to avoid the effect of any law of the District of Columbia, in reference to a corporation using funds for- the purchase of any stock in any other corporation. Eight months after the Vapor Fuel Company of Virginia had been organized they took stock therein, in exchange for the stock held by them in the International Company of the District of Columbia, and this was all they had to do with the transactions of the Company in reference thereto. Whatever illegal transactions may have been performed by the Company in reference to the use of funds, these complainants knew nothing and never had anything to do with them. They simply purchased the stock of the Vapor Fuel Company of Virginia for a valuable consideration, to wit: their own stock, not by any of the funds of the Company, and they had nothing to do with the use of the funds of the Company in the purchase of stock of any other corporation. They simply exchanged their own individual stock for stock in another corporation, which it is claimed is not within the prohibition of the statute relating to a company issuing its funds for the purchase of stock in another corporation.</p> <p>The complainants have never had an opportunity to be heard upon this point, it having not been made by counsel for defendant and for that reason was not discussed.</p> <p>7. The complainants wish to frame their bill so as to make it entirely clear that they are seeking relief only as stockholders of the Vapor Fuel Company of Virginia against the individual defendants on account of their" official transactions as indicated, not seeking any relief against the International Company of the District of Columbia, nor the Vapor Fuel Company of Virginia, as a company, making it a party because by law required so to do in such cases, and making no claims against it, but only for their share of what may be realized as the result of this suit brought practically in its behalf, as stockholders may do when the Company refuses itself to bring suit.</p> <p>They desire to make it appear clearly that they simply ask that the individual defendants account to the Company, and that these complainants may have their share as stockholders, and that it is only for such purposes that they pray for discovery and an account.</p> <p>8. The complainants desire to have an opportunity under-the advice of counsel to so prepare the bill if possible in other respects as to remedy the defects set forth in the opinion of the court. They believe that they have been deeply wronged through the acts of the defendants, which a court of equity would redress if properly presented.</p> <p>This court has not decided this case as it says, upon its merits, and complainants know of no other way in which these merits can be examined except by an amended bill setting up their claims properly, and they respectfully ask that they may have an opportunity so to do according to the law as indicated by the court in its opinion.</p> <p>Augustin I. Ambler,</p> <p>Rosaline N. Ambler.</p>

Hearing on an appeal by the plaintiffs from an order of the Supreme Court of the District of Columbia, holding a law term, quashing an attachment issued in an action of assumpsit. The Court in its opinion stated the case as follows: This is an appeal from an order quashing a writ of attachment.

Hearing on an appeal by the libellant from a decree of the Supreme Court of the District of Columbia, holding a District Court, dismissing a libel in admiralty, for want of jurisdiction. The Court in its opinion stated the case as follows: This is a libel in admiralty to recover what is claimed as rent for a wharf, situated in the District.

Hearing on an appeal from a decision of the Commissioner of Patents, rejecting an application for a patent for the combination of a lock-striker and doors or casings. The Court in its opinion stated the case as follows: This is an appeal from the decision of the Commissioner of Patents refusing to grant to the appellant a patent for an alleged invention for a lock-striker .or striker-plate for doors, or rather in form for the combination of such striker-plate with the door.

Hearing on an appeal by the defendant from an order of the Supreme Court of the District of Columbia, holding a law term, overruling a motion for a new trial on a bill of exceptions. The Court in its opinion stated the case as follows: This is a suit at common law to recover an alleged balance ■of account.

<p>Administration ; Orphans’ Court.</p> <p>1. Where an administrator in his accounts claims credit for certain claims against the estate paid by him, and exceptions are taken to the account on the ground that such claims are not only unjust but that the administrator acted in bad faith in paying them, it is reversible error for the probate court to refuse to frame issues to be submitted to a jury to try and determine the facts.</p> <p>2. Either party to a controversy of fact in the Orphans’ Court of this District, may, as of right, under the Statute of Maryland of 1798, ch. 101, sub-ch. 15, secs. 16 and 17, require an issue to be framed for submission to a jury, and the court is not at liberty to refuse it.</p>

Hearing on an appeal by the petitioner from an order of the Supreme Court of the District of Columbia, holding a term for Orphans’ Court business, refusing to refer to the auditor a petition for allowance of counsel fees, filed by the solicitor for certain parties in a cause pending in that court. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia, holding an equity term, sustaining a demurrer to and dismissing a creditor’s bill to set aside an alleged fraudulent conveyance of real estate and to subject the same to a debt due complainant.

<p>Criminal Law ; Evidence j Res Gesta; ; Rape.</p> <p>1. In criminal cases, and especially in cases of rape and in cases of abuse of female'children, the principle of what is called the res gesta will of necessity be extended beyond the limits that obtain generally in civil cases.</p> <p>2. No inflexible rule as to the length of interval between the act charged against an accused and the declaration of the complaining party, can be laid down as established to bring the declaration within the principle of the res gesta.</p> <p>3. In a prosecution of a defendant for the rape of a child about five years and a half old, the statements of the child of the particulars of the outrage made to her grandmother at a time during the same day when the condition of the child showed that the outrage had been recently committed and testified to by the grandmother, are admissible as part of the res gesta.</p>

<p>Master and Servant; Liability of Master for Servant’s Injuries; Fellow-Servants; Negligence; Release; Evidence.</p> <p>1. The real ground of the exemption of a master from liability to his servant for injuries received in the course of the employment by the negligence of fellow-servants, is based upon the implied contract between the master and servant that, in consideration of the employment and payment of wages, the servant assumes the risk of injury while in such employment. Therefore, when the porter of a Pullman car, which forms a part of a train of a railroad company, and is run as a part of such train under a contract between the railroad company and the Pullman Company, is injured through the negligence of a switchman of the railroad company, there being no such employment, the railroad company is not exempt from liability for such injury.</p> <p>2. But an employe of the Pullman Company, who is given free trans-’ portation by a railroad company, by the terms of an existing contract between the two companies, is not a passenger of the railroad company on whose line he runs, in any such sense as to require of the railroad company the highest degree of skill and care in the operation of its road; and if injured, negligence will not be presumed primafacie, as in the case of a passenger, from the simple fact of the occurrence of the accident and infliction of injury, but the onus is upon him to show afiirmatively that the injury was caused by the lack of ordinary, reasonable care by the railroad company or its servants.</p> <p>3. A written contract of employment between master and servant, containing a release by the servant to his master from any and all claims for liability on account of personal injuries, death or otherwise, during such employment, and having no retrospective operation, is not admissible in evidence in a suit for damages by such servant against his master, growing out of an injury received while in the employment of the same master more than a year before such written contract was executed.</p>

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, holding a law term, quashing a writ of attachment based upon the alleged non-residence of the defendant. The facts are sufficiently stated in the opinion. 1. The court below erred in quashing the attachment in this case upon the mere ex parte affidavit of the appellee, contradicted as it was by the affidavits filed by the appellant.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, holding a law term, quashing writ of attachment.

<p>Hearing on an appeal by the defendants from an order of the Supreme Court of the District of Columbia, holding an equity term, overruling a plea to a bill.</p>

<p>Patent Appeals.</p> <p>1. An appeal does not lie to this court from a mere interlocutory or preliminary order or ruling o£ the Commissioner of Patents in an interference case, such as a ruling that there is or is not an interference, or an order refusing to investigate an alleged interference ; but only from the final decisioir of the commissioner in such a case determining the question of the priority of invention ; construing act of Congress of February 9,1893, Sec. 9.</p> <p>2. A decision of the Commissioner of Patents from which an appeal will lie to this court, can only be made after the primary examiner, and, on appeal from him, the board of examiners-in-chief, have considered the case and made findings therein.</p>

Hearing on an appeal by the complainants from a decree of the Supreme Court of the District of Columbia, holding an equity term, dismissing a bill to set aside certain conveyances of real estate. Held: Robert C. Hewett’s estate, nine shares; Walter F. Hewett, three shares; Burket, Boughton, Rock, O’Brien, Scanlan, Cronin, Heurich, and the Columbia Railway Company, one each.

Hearing on an appeal by the defendants from an order of the Supreme Court of the District of Columbia, holding an equity term, overruling a motion to vacate an order of publication and to quash any constructive notice thereunder.

<p>Attachment; Affidavits;. Practice; Foreign Corporations.</p> <p>1. The affidavits in an attachment proceeding, by virtue of the statute relating to such proceedings, become a part of the record on appeal, as much as the pleadings, without a bill of exception's or agreed statement.</p> <p>2. In the determination of cases pending in the General Term of the Supreme Court of the District, at the time of the abolition of its appellate jurisdiction, and transferred to this court by-operation of law, this court conforms as far as possible to the rules of practice then prevailing in the General Term.</p> <p>3. A corporation organized under the laws of a foreign jurisdiction, although exclusively engaged in business in this District, having been organized for that purpose only, and having its secretary and treasurer here, is a non-resident and subject to attachment as such.</p>

<p>Reversible Error ; Contributory Negligence ; Streets and Sidewalks; Negligence; Practice.</p> <p>1. In an appellate court, it is no sufficient ground of complaint that a trial judge may have given wrong reasons for a correct judgment, even if it be assumed that the reasons given were wrong.</p> <p>2. Where there can be no substantial controversy in regard to the facts that constitute alleged contributory negligence, and when the facts are such that but one reasonable conclusion can be drawn, the question of contributory negligence is one of law for the court.</p> <p>3. A pedestrian has the right to assume that the portion of a public sidewalk reserved for the ordinary purposes of travel, is maintained in good condition, and he is not required to be on the lookout for pitfalls in that part of the public highway ; but he is required to be on his guard when he approaches the inner portion of the sidewalk commonly occupied by steps leading to the doors of houses, steps and area-ways leading downward to the entrance to basements, bay-window projections, etc., or the outer portion occupied commonly by pumps, hitching posts, trees, etc., and it is negligence in him to use such portions of the sidewalk without at least some casual observation of their condition.</p> <p>4. In a case in which, if the verdict of the jury had been for the plaintiff, it would have been the duty of the trial court to have set aside the verdict, it was held that it was proper for the court below to instruct the jury to find for the defendant.</p>

Hearing on an appeal by the complainants from a decree of the Supreme Court of the District of Columbia, holding an equity term, dismissing a bill against an executor and legatee.

Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia, holding an equity term, dismissing a bill by a wife against her husband for separate maintenance and support. The facts are sufficiently stated in the opinion.

<p>Specific Performance; Laches; Tender; Contracts for Sale of Land; Dower, Release of</p> <p>1. A party seeking the specific performance of a contract must show that there is equity and good conscience in support of his claim for relief, and that his application is made within reasonable time under all of the circumstances of the case. Therefore, a bill by one person against another for the specific performance of a contract for the sale of improved land, filed more than two years after the refusal of the intending vendor to consummate the sale, during which time the value of the property was subject to change and fluctuation, and containing nothing to justify the complainant’s delay in bringing the suit, shows undue delay on his part, and will be dismissed.</p> <p>2. Where the terms of sale in a written contract for the sale of land, „ are so much in cash and the balance of the purchase money in notes bearing interest, the tender by the intending vendee of a certified check for all of the purchase money, is not a sufficient tender to support a bill by him for the specific performance of the contract. He has no right to require the other to forego his right to receive notes instead of cash, nor to receive a cer- ,. tified check instead of money.</p> <p>3. Equity will not, at the instance of the intending vendee, decree the specific performance of a contract for the sale of land, when the wife of the intending vendor refuses to relinquish her right of dower by joining with her husband in the execution of a deed to the vendee.</p> <p>4. Nor in such a case will equity require the husband to suffer an abatement of the purchase money to an amount equivalent to the value of the contingent right of dower of the wife in the property. Equity will either execute the contract as made by the parties, or decline the exercise of the jurisdiction altogether, and remit the complainant to his remedy at law.</p>

<p>Negotiable Paper; Checks; 73D Rule.</p> <p>1. A negotiable check is, in its principal characteristics and incidents, an inland bill of exchange, and, like such negotiable paper, imports consideration. Therefore, in a suit on a check, where the declaration is supported by an affidavit, in conformity to the 73d rule of the Supreme Court of this District and the defendant’s pleas are not verified by an affidavit, as required by that rule, the fact that the plaintiff’s affidavit does not show that • certain stock, for which the defendant gave the check, was actually delivered, will not suffice to prevent the plaintiff from taking a summary judgment under the rule.</p> <p>2. The 73d rule is a salutary one and exacts nothing unreasonable from the parties to a suit.</p>

<p>Suits in forma pauperis ; Appellate Practice.</p> <p>1. The act of Congress of July 20, 1892, 27 Stats., 252, allowing suits to be brought in federal courts in forma pauperis, upon certain conditions therein prescribed, refers only to actions prosecuted in courts of original jurisdiction, and not to proceedings in probate or appellate courts; and therefore the failure of an appellant in this court to give bond for security for the costs of appeal, cannot be justified under that act.</p> <p>2. The failure of an appellant to file a transcript of the record of the proceedings below within the time prescribed by the rules of this court, will, in the absence of a legal or sufficient excuse for the omission, entitle the appellee, on motion, to a dismissal of the appeal.</p>

Hearing on an appeal by a guardian from a decree of the Supreme Court of the District, holding an orphans’ court, in a case involving matters of account between guardian and ward. The facts sufficiently appear in the opinion.

<p>Hearing on appeals by the plaintiff from orders of the Supreme Court of the District of Columbia, holding a law term, sustaining demurrers to replications in a sci. fa. on a judgment and an action of debt on the same judgment, in which the statute of limitations was pleaded.</p> <p>The Court in its opinion stated the case as follows:</p> <p>It appears that judgment was recovered by the appellant, Hannah N. Mann, against Douglas H. Cooper and F. M. Cooper, on the 26th of October, 1874, for $3,000 and costs. Upon this judgment in the Supreme Court of this District a fieri facias was issued on the 6th of January, 1875, and returned nulla bona March 6, 1875. The death of Douglas H. Cooper was suggested, and thereupon the appellant caused a scire facias to issue to revive the judgment against the appellee, as administratrix of the deceased judgment debtor, on the 27th of June, 1891, which was returned scire feci the 2d of July, 1891. And on the 13th of July, 1891, the appellant brought an action of debt on the judgment against the appellee, as administratrix of the deceased, Douglas H. Cooper, to recover the amount of the judgment, less the sum of $1,756, entered as a credit on the judgment as of the 25th of October, 1879.</p> <p>The appellee appeared to both actions, that is to say, to the scire facias, and to the action of debt on the judgment; and she pleaded three pleas in each action^, or rather, she pleaded the statute of limitations in three forms in each action; and as the only questions for determination arise upon the pleadings, both cases will be considered and disposed of together.</p> <p>The first plea is, that the judgment was above twelve years’ standing. The second is, that more than twelve years had elapsed since the date, of the last proceeding to enforce the judgment; and the third is, that the judgment was rendered on the 26th of October, 1874, and on the 6th of January, 1875, a fieri facias was issued thereon and was returned nulla bona, on the 6th of March following; and that no subsequent proceeding had been taken to enforce the judgment; wherefore the same was more than twelve years’ standing.</p> <p>The appellant replied specially to each of these pleas, the replications being the same in both cases. To the first plea, it was alleged in avoidance, that on the 25th of October, 1879, the judgment debtors, by their duly authorized agent, made payment on account of said judgment, to the amount of $1,756, wherefore the appellant says that said judgment was not above twelve years standing at the commencement of this action. To the second plea, the replication is, that at the date of the judgment, the judgment debtor, Douglas H. Cooper, was a resident of the District of Columbia, but that afterwards, to wit, in June, 1875, he absented himself from the said District, and remained absent therefrom until his death, that he. died intestate in the year 1879, and there was no personal representative of his estate, nor any assets belonging thereto, in said District of Columbia, until June, 1891, when the appellee was appointed administratrix of said estate, and who, on presentation of appellant’s claim, rejected the same, and that, by reason of such absence, the appellant was at an uncertainty of finding out the said debtor, or his effects; the said debtor not having left effects sufficient, and known to the appellant, to pay said judgment; wherefore the appellant says that the appellee ought not to have any advantage or benefit of the limitations or restrictions prescribed by the statute of limitations in force in the District of Columbia.</p> <p>And to the third plea the replication is, that in May, 1876, the judgment debtor, the said Douglas H. Cooper, made and entered into an agreement in writing with the appellant, upon a new and valuable consideration, wherein it was stipulated, that “ said Hannah N. Mann has, and shall at all times have, the right to execute the said judgment, and collect the amount due on the said judgment”; and that, relying on said agreement, no subsequent proceeding was taken by the appellant to enforce the said judgment prior to the commencement of this action; wherefore the appellant says that the appellee is estopped from setting up the matters in said plea alleged in bar of the appellant’s right of action.</p> <p>To each of the replications, in both cases, the appellee demurred. And the court below sustained the demurrer, and entered judgment for the defendant, the present appellee.</p> <p>1. The authorities in the United States are almost unanimously to the effect that a part payment of a judgment or other specialty debt takes the case out of the statute. In most of the codes of the United States, judgments are distinguished from other debts by specialty,, and the effect of part payments is expressly regulated. In others the common law presumption is adopted, and part payments are admitted in rebuttal. (See Wood on Lim., Appendix.) But so far as the courts have had the question before them on principle, freed from statutory restrictions, they have almost, if not altogether, invariably held that part payment of a judgment or other specialty debt takes the case out of the statute.</p> <p>In the following three cases it was held that a part payment of a judgment debt suspended the statute to the date of the payment: Brisbin v. Fanner, 16 Minn., 215; Car-shore v. Huyck, 6 Barb., N. Y., 583 ; Strong v. State, 57 Ind., 428.</p> <p>There is no case to be found in the reports, which holds that, on principle, a part payment of a judgment debt is not a good reply to a plea of the statute. The following case ruled that a reply of part payment was not good, because statutes expressly regulated the subject, and the case was not within them: McDonald v. Dickson, 87 N. C., 405. The following eight cases hold that an acknowledgment of a judgment debt is sufficient to remove the bar: Bissell v. Jaudon, 16 Ohio St., 499; Olcott v. Scales, 3 Vt., 173 ; Hall v. Hall, 8 Vt., 156 ; Carshore v. Huyck, 6 Barb., 583 ; Nelson v. Barker, 48 N. W. Rep., 962; Darsey v. Mumpford, 58 Ga., 119; Bradley v. Briggs, 22 Vt., 95; Gailor v. Grinnell, 2 Aik., 349. On the same principle, it has been held that a replication of a new promise, or of a part payment, to a plea of discharge by bankruptcy, was good in actions of debt on a judgment and on a bond. Maxim v. Morse, 8 Mass., 126, 129; Alsopv. Brown, Douglas, 191. The following thirteen cases hold that a part payment on a bond or other specialty takes the case out of the statute: Hopkins v. Stout, 6 Bush, 375; Craig v. Calloway Co., 12 Mo., 94; Vernon Co. v. Stewart, 64 Mo., 408; Wilson v. Pope, 37 Barb., 321; Armistead v. Brooke, 18 Ark., 521; Dyer v. Gill, 32 Ark. 410; Estes v. Blake, 30 Me., 164; Bank v. Foster, 14 La. An., 159; Beatty v. Clement, 12 La. An., 82 ; School District v. Bank, 19 Neb., 89; Gilbert v. Collins, 124 Mass., 174; Hemert v. Porter, 11 Metcalf, 210; Sanger v. Nightingale, 122 U. S., 176. The only case to the contrary which has been found gives no reason for the ruling. The meager statement of the reporter does not show whether the indorsement was made by the obligor or obligee, and if it were by the latter it would account for the decision. Fuller v. Hancock, 1 Root, Conn., 238. The authorities under Sec. 6 of the Md. act of 1715 do not conflict with, but tend to support the plaintiff’s replication. Post v. Mackall, 3 Bl. Ch., 486, 522; Watkins v. Harwood, 2 G. & J. 307, 311; Carroll v. Waring, 3 G. & J.,’ 491, 496; Digges v. Eliason, 4 Cr. C. C., 619; Thompson v. Beveridge, 3 Mackey, 170 (the last two repudiating Mullikin v. Duvall, 7 G. & J., 355.)</p> <p>2. In the cases at bar the new contract evidenced by the p.art payment is founded on an instrument under seal, which is of equal dignity with a judgment under the statute of limitations. The replication does not set up a part payment simply, but a contract under seal authorizing the part payment. If there be any doubt as to the efficacy of a mere part payment in reviving a debt by specialty, it is removed by the fact that here the part payment was made by a specialty. Wood on Lim., Sec. 66. We have here not only the admission of the debt by part payment, but a contract under seal making the payment. The Supreme Court of the United States have led the country in a strict application of the rule relating to acknowledgments, holding that they must be accompanied by words which show an intent to pay, and yet they have decided that the barest acknowledgment contained in an instrument, under seal is enough. King v. Riddle, 7 Cranch, 168. In Pennsylvania it has been held that a part payment entered of record by the judgment debtor is the equivalent of a scire facias. Boal’s Appeal, 2 Rawle, 37. In Georgia it is held that the indorsement on a writ of execution of a promise to pay in the future revives the judgment. Darsey v. Mumpford, 58 Ga., 119. Now, it is an elementary rule that “ a duty arising by record must be discharged by matter of as high a nature,” but it is settled that a judgment may be discharged by a release under seal. Bacon’s Abr., Release; Barker v. St. Quintín, 12 M. & W., 453 ; Mitchell v. Hawley, 4 Denio, N. Y., 414. A judgment is not only a specialty by virtue of the express language of Section 6 of the act of 1715, but it has always been held to be a specialty within the meaning of statutes of limitation, unless it be discriminated from other specialties by the statutes. Smith on Cont., pp. 2,4; 1 Parson’s Cont., 7; Cock-ram v. Welby, 2 Mod., 212; Wood on Lim., Secs. 29, 30, 172; Angelí on Lim., Sec. 80, n. 1; Bissell v. Jaudon, 16 Ohio St., 498; David v. Porter, 51 la., 254; Lane v. Morris, 10 Ga., 162 ; Dudley v. Lindsey, 9 B. Mon., Ky., 486; Richards v. Bickley, 13 S. & R., Pa., 395; Randolph v. King, 2 Bond C. C., 104; Walker v. Witter, 1 Douglas, 1. In New York it has been held that the judgment of a justice of the peace was as much a specialty as the judgment of a court of record, and therefore that the action on it must be debt and not assumpsit. Andrews v. Montgomery, 19 Johns., 165; Brintnall v. Foster, 7 Wend^ 104; Smith v. Lockwood, 7 Wend., 243; Mitchell v. Hawley, 4 Denio, 414; Hard v. Shipman, 6 Barb., 626; Hiles v. Totman, 3 Barb., 594; Pease v. Howard, 14 Johns., 479. A justice’s judgment is “equivalent at least to a specialty, and assumpsit will not therefore lie on such a judgment, but the action should be debt.” James v. Henry, 16 Johns., 233.</p> <p>3. The departure of the defendant’s intestate from the District of Columbia after contracting the judgment debt, without leaving goods sufficient and answerable for his debts, deprived him of the benefit of the statute of limitations, and prevented its running, at least until the date of his death; after which it did not begin to run until the appointment of his administratrix, namely, in the year that these actions were commenced. 3 Blacks. Com., 283-6; Burroughs v. Bloomer, 5 Denio, 532; Nelson v. Beveridge, 21 Mo., 22 ; Ormsby v. Letcher, 3 Bibb, 269; Fisher v. Phelps, 21 Tex., 551; Ticklin's Ex. v. Carrington, 31 Graft., 219; Embrey v. Jemison, 131 U. S., 336; Edwards v. Davis, 4 Bibb, 211 ; Prather v. Ross, 10 B. Mon., 15; Davidson v. Simmons, 11 Bush, 330; Wood on Lim., Sec. 245 ; Smith v. Bond, 8 Ala., 386; Chenot v. Lefevre, 8 111., 637; Arm-field v. Moore, 97 N. C., 34; Sissons v. Bicknell, 6 N. H., 557', Dwight v. Clark, 7 Mass., 515 ; Wood on Lim., Secs. 244-247. Cases cited supra. Savage v. Scott, 45 Iowa, 130; Hentig v. Sweet, 27 Kan., 172; Denny v. Smith, 18 N. Y., 567; Heffelbower v. Detrick, 27 W. Va., 16; Cooke v. Holmes, 29 Mo., 61; Randall v. Wilkins, 4 Denio, 577; Barney v. Oelrichs, 138 U. S., 529; Bennett v. Devlin, 17 B. Mon., Ky., 353 ; Haviland v. Hargis, 9 Fla., 15 ; Sullenberger v. GA/, 14 Ohio, 204; Maurice v. Worden, 52 Md., 283.</p> <p>As the statute did not begin to run during Cooper’s lifetime, it did not begin until the appointment of his administratrix. Wood on Lim., Sec. 194; Jolijfe v. Pitt, 2 Vern., 694; Douglas v. Forrest, 4 Bing., 686; Lee v. Gause, 2 Ired. L., N. C.,.440; Fishwick v. Sewall, 4 H. & J., 393. 'If it be suggested that the plaintiff should have forced administration at an earlier date, the replication answers that there was no property of Cooper’s estate in the District until 1891, and the statute does not authorize administration unless there be property here. Dennis Probat Law, Ch. 5, Sec. 2.</p> <p>2. The defendant’s intestate was absent from the District of Columbia when the cause of action against him on this judgment accrued to the plaintiff, and never returned, but died in 1879; wherefore the statute did not begin to run until the appointment of his administratrix, namely, in the year when these actions were commenced. Lee v. Giles, 1 Bail., S. C., 449; Kingsland v. Forrest, 18 Ala., 519; Freeman on Judgments, Sec. 432; 3 Black. Com., 160, 421; 2 Tidd’s Practice, 1102; Foster, Scire Facias, 2, 5, 19; Digges v. Eliason, supra ; Thompson v. Beveridge, supra; Warfield v. Brewer, 4 Gill, 265 ; Bridges v. Adams, 32 Md., 577.</p> <p>3. The defendant is estopped to plead the statute of limitations by the agreement of her intestate, made upon a new and valuable consideration in 1876, that the plaintiff should have the right to issue execution on the judgment “ at all times.” A judgment debtor cannot take advantage of a failure to bring the action in time, if he has assented to it or brought it about; and that the parties may contract for the issue of execution without a scire facias after the period fixed by the statute, and even “ at the pleasure of ” the judgment creditor. Foster, Scire Facias, 8; and Chap. VII.; 2 Tidd’s Practice, 1104; Freeman on Executions, Secs. 27,28 ; U S. v. Harford, 19 Johns., 173; Tidd’s Pr., 1094. The great weight of authority is that a promise not to plead the statute, or an agreement which implies such a promise, operates as an estoppel in pais; and that a subsequent plea of the .statute is a fraud on the plaintiff, which a judicial tribunal will not suffer. Butrón v. Stevens, 24 Vt., 131; Kellogg v. Dickinson, 147 Mass., 432; Quick v. Corlies, 39 N. J., L., 11; Lengar v. Hazelwood, 11 Lea, Tenn., 539; Marti?i v. Lamb, 40 N. J., Eq., 669; Lamb v. Ryan, 40 N. J., Eq., 67 ; Rowe v. Thompson, 15 Abb. Pr., 377 ; Bowmar v. Peine, 64 Miss., 99; Cowart v. Perrine, 21 N. J., Eq., 101; Allen v. Webster, 15 Wend., N. Y., 289; Utica Lns. Co. v. Bloodgood, 4 Wend., 652; Paddock v. Colby, 18 Vt., 485; Noyes v. Hall, 28 Vt., 645 ; Barcroft v. Roberts, 91 N. C., 363; Warren v. Walker, 23 Me., 453; Rawson v. Toby, 11 How., 493, 519.</p> <p>The replication to the third plea is an estoppel, but the language of the “ specialty ” quoted is far short of a waiver by Cooper of a right to plead limitations, and does not appear to have had any reference to it. This “ specialty ” was made in 1876, ten years before limitations could be pleaded to the judgment, and when the parties could hardly be supposed to have had in mind its future outlawry. The obvious intention of the language employed was to express that plaintiff’s right to execute or collect in any way whatever was not to be taken to be abridged by the specialty. There was no waiver of right, either by Cooper or by Mrs. Mann, and certainly nothing to estop the plea of limitations by Cooper’s administrator fifteen years later. It is common learning that estoppels are not favored by the courts, and such a plea will be strictly construed against the estoppel. Recitals must be certain to create an estoppel. Noble v. Cope, 50 Pa. St., 17; Kepp v. Wiggett, 10 C. B., 35.</p>

This was a hearing upon an appeal by the Commissioner of Patents from an order of the Supreme Court of the District of Columbia, holding a law term, quashing a return of the Commissioner to an alternative writ of mandamus, issued upon the petition of the United States, ex relatione the State of South Carolina, to compel the Commissioner to register a trade-mark of the relator, and directing a peremptory writ to issue. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the complainants from a decree-of the Supreme Court of the District of Columbia, holding an equity term, dismissing a bill for specific performance. The Court in its opinion stated the case as follows: Mannix & Stevens instituted this action to enforce specific performance by Mrs. Florence Hildreth of an alleged contract of sale of sub-lot 38, in square 217, in the city of Washington.

Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia, holding an equity term, dismissing a bill for specific performance. Held: or claimed to hold. Kimball was, of course, familiar with the title and trusts also, and was, in the course of the correspondence, reminded of the requirement concerning appraisement before sale.

<p>Equity Practice ; Necessary Parties; Personal Service, when NECESSARY; EQUITY JURISDICTION; CHANGE IN PUBLIC OFFICE.</p> <p>1. To a suit in equity for the cancellation and surrender of an alleged fraudulent assignment of a patent and to expunge such assign- ■ ment from the records of the Patent Office, the parties by whom and to whom the assignment was made as well as the Commissioner of Patents are necessary parties.</p> <p>2. The rights involved in such a suit are strictly in personam, and personal service within the jurisdiction in which the suit is brought upon the defendant who made and the defendant who received the assignment, is necessary to give the court jurisdiction.</p> <p>3. Such a case does not come within the meaning of R. S. D. C., Sec. 787, allowing the substitution of publication for personal service in certain cases therein enumerated.</p> <p>4. If service of process is had in such a case on the Commissioner of Patents only, the court cannot assume jurisdiction over the entire subject matter and decree that the assignment be expunged from the records of the Patent Office ; and no consent or acquiescence of the Commissioner of Patents can give the court jurisdiction.</p> <p>5. Where pending a suit in equity against a Commissioner of Patents there is. a change in the incumbency of the office, a decree against the defendant after his retirement from office, would not bind his successor; and the court is bound to take judicial notice of the change in office.</p>

<p>Hearing on a bill of exceptions taken by the defendant to the rulings of the Supreme Court of the District of Columbia, holding a law term, in an action on a promissory note.</p> <p>The Court in its opinion stated the case as follows :</p> <p>This case has been transferred to this court from the Supreme Court of the District of Columbia, under the act of Congress of February 9, 1893. The case was pending, in the Supreme Court in General Term, on appeal from a special term of the Supreme Court, when this court was organized.</p> <p>The action was brought on the 17th of April, 1889, upon a promissory note of Ellen Ruppert, as maker, for $2,187.06, dated March 6, 1883, payable one day after date,' to the order of the defendant, Gustav Ruppert, and by him indorsed. The note was subject to certain credits indorsed thereon, the. last of which was on January 13, 1885.</p> <p>To the declaration on this note was pleaded the statute of limitations, and to which plea was replied a new promise within three years before suit brought.</p> <p>At the trial it appeared that the defendant had made acknowledgment of the debt due on the note within three years before suit brought; and the question is, whether this acknowledgment, as made and proved, was sufficient to give rise to an implied promise to pay, and thus take the case out of the operation of the statute of limitations. The statute of limitations of actions in force in this District is the Maryland Act of 1715, Ch. 23, and Section 2 of that act, which contains the provision applicable to this case, is nearly an exact transcript of Section 3 of the English statute 21 Jas. I, Ch. 16, except as to the period of limitations.</p> <p>It was proved, on the part of the plaintiffs, by witness Weide, that he knew the parties, and had been employed by Beavans & Shaw; that at the instance of the plaintiffs, he presented the note in suit to the defendant on the 19th of January, 1889; and that the defendant then acknowledged it. And, upon being requested to cut the amount into two or three notes, he refused to do so. And upon being asked whether he knew he owed the note, he said he knew he owed it.</p> <p>Upon cross-examination, the witness stated that he presented the note in suit to the defendant, and told him that Mr. Shaw requested that the amount should be cut “into two or three notes.” The defendant said, “he could not do this.” The witness then said to defendant, “you know you owe it; ” to which the defendant replied, “/ do that? And this witness, at the time, made a memorandum in a memorandum book, in the presence of the defendant, which was read in evidence, and is as follows: “Asked him to cut the note into 3. Would not do. Said to him, ‘you know you owe it.’ He said, ‘ I do that.’ ”</p> <p>The plaintiffs rested their case upon this proof, and the defendant thereupon made request of the court to instruct the jury to return a verdict for the defendant, which the court refused to grant, and the defendant excepted.</p> <p>The defendant was then examined as a witness for himself, and he swore that he had made no such acknowledgment as that sworn to by the witness Weide, and gave a different version of the interview between himself and that witness. And the defendant again renewed his application to the court to direct the jury to return a verdict for the defendant; but which application was refused, and the defendant excepted.</p> <p>The court instructed the’ jury, in effect, that if they believed the witness Weide, and that the defendant made to that witness, the agent of the plaintiffs, an unequivocal and unqualified admission of the debt, and that it was still due and owing, the plaintiffs were not barred of their action by the statute of limitations, and they were entitled to recover. The defendant also excepted to this, instruction. Under the instruction given, the verdict was for the plaintiffs, and the defendant appealed.</p> <p>i. By refusing to instruct the jury to return a verdict for the defendant, the court practically held that the alleged acknowledgment by the defendant was sufficient to remove the bar of the statute of limitations. This was error. Bell v. Morrison, i Pet., 362. The acknowledgment must be so distinct and unambiguous as to remove ¿11 hesitation in regard to the debtor’s meaning. Palmer v. Gillespie, 95 Pa. St., 344; Shaeffer v. Hoffman, 113 Pa. St., 5. The admission must not only be unqualified in itself, but there must be nothing in the attendant acts or declarations of the defendant to qualify it, or rebut the inference of willingness to pay. Wood’s Limitations of Actions, Sec. 170; Bell v. Morrison, supra. Tested by these unquestioned rules the alleged acknowledgment is not sufficient. The mere admission by a debtor that he is aware of the fact of his indebtedness, under the circumstances detailed by the testimony in this case, should not be construed into an unqualified and direct admission of a previous subsisting debt which the party is liable and willing to pay. A debtor may well know that he morally owes a debt, and when interrogated with respect to the fact of such knowledge (as in this case), may admit it; and tfie fact that the debtor, in the same conversation, refuses to renew the debt by giving smaller notes, carries with it positive evidence that he did not intend to acknowledge the debt as one which he was willing to pay.</p> <p>2. By its instruction, the court left it to the jury to ascertain whether the language claimed to have been used by the defendant amounted to an unequivocal and unqualified admission of indebtedness.</p> <p>Whether certain language was used is a question of fact which should be submitted to the jury, but, whether such language amounts to a sufficient acknowledgment to bar the statute is a question of law and not one for interpretation by a jury.</p>

Hearing on an appeal by the exceptants from an order of the Supreme Court of the District of Columbia, holding a term for orphans’ court business, overruling exceptions to an administrator’s account.

Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia, holding an equity term, dismissing a cross-bill in a suit for the cancellation of a deed and a recorded subdivision of real estate, and an injunction.

<p>Seventy-Third Rule; Affidavits; Agency; Separate Judgments against Joint Promisors.</p> <p>1. It is not a sufficient objection to an affidavit filed under the 73d rule of the Supreme Court of the'District, that it is not titled as of the cause in which it was filed ; nor is it a'material objection that such affidavit was sworn to the day before the suit was begun.</p> <p>2. After a judgment against a defendant has been rendered under the 73d rule for want of an affidavit of defense, it is too late for him to object that the plaintiff’s affidavit was insufficient to support the judgment in that there was no evidence of the official character of-the justice of the peace of a foreign jurisdiction before whom the affidavit was made, except that of the seal of the justice attached to the affidavit. Such an objection should be made, by motion to strike the affidavit from the files, or otherwise, before any proceeding is had based upon such affidavit.</p> <p>3. An attorney is, within the meaning of the 73d rule, an agent, and may as such make an affidavit for his client thereunder.</p> <p>4. Under R. S. D. C., Sec. 827, the entry of a judgment by confession against one of two joint contractors in an action against both does not bar the recovery of a subsequent judgment, in the same suit, against the other.</p>

<p>Equity. Practice ; Appealable Orders.</p> <p>1. A11 order sustaining exceptions to an answer to a bill in equity, is . not appealable.</p> <p>2; But if after exceptions to an answer have been sustained, an order is made, upon the failure of the defendant to make further answer, taking the bill as confessed or compelling the defendant by attachment to answer further, as provided by Equity Rule 56 of the court below, such order is appealable.</p>

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, holding a law term, in an action against three alleged joint tortfeasors, upon an agreed statement of facts. The Court in its opinion stated the case as follows: This is a suit at common law, and comes to us on appeal from a judgment of the Supreme Court of the District of Columbia in special term upon an agreed statement of facts.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, holding a law term, under the 73d rule of that court, in an action of assumpsit.

<p>Seventy-Third Rule; Affidavits.</p> <p>1. If in an action at law in the Supreme Court of this District the affidavit of the plaintiff, filed with his declaration under the 73d rule of that court, fails to state that the amount he claims to be due, is due him “ exclusive of all set-offs and just grounds of defense,” as required by that rule, the affidavit is fatally defective and the plaintiff is not entitled to a summary judgment, although the defendant file no affidavit with his plea, or an insufficient one.</p> <p>2. While it is not necessary that the precise words of the rule, “ exclusive of all set-offs and just grounds of defense,” shall be used, the statement which they embody must appear distinctly and by positive averment, and not merely by inference, in the plaintiff’s affidavit.</p>

<p>Deeds by persons out of possession ; Champerty and Maintenance.</p> <p>1. A deed of real estate is not void by reason of the grantor-being out of possession, 32 Henry VIII., Ch. 9, prohibiting, as an act of maintenance, the conveyance of land held adversely, not being in force in this District.</p> <p>2. Whether champerty and maintenance are recognizable as punishable offenses under the laws of this District, and render void acts done in their commission, quaere.</p>

Hearing on an appeal by one of the defendants from a decree of the Supreme Court of the District of Columbia, holding an equity term, overruling exceptions to a report of the auditor in a suit to subject the real estate of a decedent’s estate to the payment of his debts.

Hearing on an appeal by the complainants and a cross-appeal by the defendants from a decree of the Supreme •Court of the District of Columbia, holding an equity term, setting aside a sale of real… Held: but on the party seeking to hold him. The only ground for suspending such rule would be that the deed of trust, duly acknowledged, or certified by a competent person to have been duly acknowledged, reverses the order of proof.

<p>Statute op Limitations ; Fraud ; Real Estate Agent ; Principal and Agent.</p> <p>1. Fraudulent concealment of a cause of action will avoid the operation of the statute of limitations in’ a suit at law as well as in equity.</p> <p>2. If a real estate owner places property in the hands of a broker for sale at a fixed price, and the broker sells it for more, to one for whom he is acting as agent for the investment of money, and secretly retains the excess, he commits a fraud upon the seller and the purchaser, for both of whom he acts as agent, and subjects himself to a double recovery of the excess.</p>

<p>Life Insurance ; Forfeiture of Policy ; Limitation of right to sue on Policy.</p> <p>1. Time is of the essence of a contract of life insurance; and the sickness of an insured person and his incapacity to attend to business upon the receipt of a notice requiring the payment of an assessment, is not sufficient excuse for failure to 'pay the assessment within the time prescribed by the policy, or ground for avoiding the forfeiture of the policy, or for granting relief in equity against such forfeiture.</p> <p>2, A provisioir in a contract of insurance limiting the right to bring suit thereon to one year from the date of the death of the insured, is binding upon the beneficiary; and in a suit upon such a contract, this limitation need not be specially pleaded where the conditions of the contract are set out in the declaration.</p>

This was a hearing on an ex parte motion made by the appellant in a case on appeal from the Commissioner of Patents, to preserve the files relative to the appeal in secrecy. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the complainants from a decree of the Supreme Court of the District of Columbia, holding an equity term, sustaining a demurrer to and dismissing a bill to set aside a sale of real estate under a deed of trust.

<p>Practice; Bills of Particulars.</p> <p>1. It is within the sound discretion of a trial court to grant or deny a motion for a bill of particulars, and its action will not be disturbed if such a motion is denied unless on appeal, after final trial, it appears that substantial injury resulted from the denial of the motion.</p> <p>2. In an action of crim. con., the declaration is sufficiently specific if it alleges the date of the offense charged and follows with the general allegation, usual in similar actions, of the repetition of the offense on divers days thereafter; and a motion by the defendant for a bill of particulars is properly denied.</p>

<p>Pleading and Practice ; Detinue.</p> <p>1. Where a declaration in detinue states a bailment to the defendant and his engagement to redeliver upon request, and the defendant pleads the bailment as a security for a debt, the plaintiff may reply, by way of confession and avoidance, without being guilty of a departure, that the pledge was procured by the defendant by fraud.</p> <p>2. The gist of the action of detinue is the wrongful detainer and not the original taking, and the allegation'of bailment is mere matter of inducement and is not traversable.</p>

This was a hearing on an appeal by the defendant from a judgment of the police court upon a verdict of guilty in a prosecution for a violation of the regulations concerning pawnbrokers. The appeal was pending in the General Term at the time of the creation of this court, and was transferred here by operation of the act of Congress of February 9, 1893.

Hearing on an appeal by the defendant from an order of the Supreme Court of the District of Columbia, holding a law term, overruling a motion in arrest of judgment in an action of assumpsit.

<p>Promissory Notes; Pleading and Practice; Frivolous Demurrer.</p> <p>1. As between the maker and payee of a promissory note, no presentation for payment at maturity is necessary to bind the maker, even though the note provides for such presentation.</p> <p>2. The statement in the form of declaration on a promissory note prescribed by the rules of the Supreme Court of the District that on the maturity of the note “ the defendant did not pay the same,” is the equivalent of a statement that the defendant has' not paid the same.</p> <p>3. The payee of a promissory note is presumed to remain the holder until the contrary appears, and in a suit by him against the maker it is not necessary for him to allege that he has not transferred it.</p> <p>4. When a demurrer to a declaration has been set aside by the trial court as frivolous and judgment for want of plea entered, the question which will be considered, on appeal, will be, whether or not the demurrer is tenable in law, and not as to its frivolousness.</p> <p>5. Where to a declaration containing a special and the common counts, and supported by an affidavit under the. 73d rule of the Supreme Court of this District, a demurrer is interposed to the special count and a plea unsupported by an affidavit to the common counts, and the demurrer'is set aside as frivolous and judgment entered for want of plea, the judgment is sustainable, on appeal, however tenable the demurrer may be, upon the common counts and affidavit, and it is immaterial that the motion for judgment was founded upon the 31st instead of the 73d rule. A good judgment will not be set aside because a bad reason may have been assigned for it.</p>

<p>Executors; Interest on Trust Funds.</p> <p>1. Executors who have in their hands money belonging to the distributee of an estate, are chargeable with interest thereon if they make use of it themselves, or are negligent either in not paying the money over, or in not investing it or loaning it so as to render it productive.</p> <p>2. If an executor mingles money belonging to the estate with his own money, it answers the purpose of credit, and he and any co-executor acquiescing in such disposition, are chargeable- with interest thereon.</p>

Hearing on an appeal by the complainants from a decree of the Supreme Court of the District of Columbia, holding an equity term, dismissing a bill for the sale of a decedent’s real estate and the distribution of the proceeds.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, holding a law term, upon a verdict for the plaintiff, in an action for money had and received. The Court in its opinion stated the case as follows: This is an action for money had and received.

<p>Executors ; Trustees ; Trusts ; Assignments.</p> <p>1. While an executor cannot generally be sued outside of the jurisdiction in which the administration of the estate is depending, if he is also the trustee of a legacy for the life of the legatee, he is amenable to suit in any jurisdiction in which he may be found.</p> <p>2. A trustee of a fund for management and investment must act in good faith and in the exercise of a sound discretion.</p> <p>3. The fact that a trustee of a fund consisting of certain bonds fails to sell the same at the request of the husband of his cestuis que trust, although the bonds were paying no interest, is not sufficient to make the trustee liable for their depreciation in value.</p> <p>4. While the conduct of a trustee in the management of his own funds, of a character similar to the trust funds, is not a test of his liability as trustee, it is a circumstance that may be looked to as evidence of his good or bad faith or negligence.</p> <p>5. A trustee’s conduct in the management of a fund is to be judged by the situation as it appeared at the time of the supposed negligence complained of.</p> <p>6. The power of a trustee to sell stocks and securities is not to be implied, and if he sells them without competent authority and they afterwards rise in value he may be compelled to restore the investment at his own loss.</p> <p>7. The fact that a trustee of a fund is not authorized by the instrument under which he acts, to change the investment at discretion, will not relieve him from liability if the fund is lost by his negligence. It is his duty to watch the investment with reasonable care and diligence, and to apply to the court promptly for leave to change it whenever his judgment as a prudent business man prompts him to do so.</p> <p>8. Where a bill in equity against a trustee for an accounting showed that certain bonds when they came into the hands of the trustee were worth 117 cents on the dollar and no interest was ever paid on them and they continued to decrease in value until they fell to 26 cents, when the trustee sold bonds of the same sort belonging to himself at the last-named price, but held those of his cestuis que trust until they became valueless, it was held, on demurrer to the bill, that such facts made a frima facie case of actionable negligence which it was incumbent upon the trustee to explain.</p> <p>9. The effect of an assignment by a life-annuitant of all her interest in bonds held in trust for her, to those entitled to such bonds after her death, is to extinguish the life interest and vest in the remaindermen an immediate right of action against the trustee for any loss that may have occurred to the body of the fund by his breach of trust, and such an assignment is not champertous.</p>

<p>Practice; Bill of Exceptions; Damages; Use of Streets by Railways.</p> <p>1. In the preparation of a bill of exceptions it is improper to make a literal transcript of all of t^ie testimony at the trial, taken from a steirographic report of the proceedings; and this court will not feel obliged to search through a mass of testimony in order to ascertain what there is that bears upon some specified ruling of the trial judge, nor will it regard a successful appellant necessarily entitled to costs when costs have been unduly enhanced by Unnecessary matter in the record.</p> <p>2. The authority given by Congress to railroads to occupy certain streets of this city by their tracks does not give them an unlimited right to the use of such streets for storage, freight and switching purposes, and when such use by a railroad of a street results in the physical discomfort and annoyance of a property owner in the use of his property, the company is answerable to him in damages.</p>

Hearing on a bill of exceptions by the defendant to the rulings of the Supreme Court of the District of Columbia, hojding a law term, in an action for damages.

Hearing on an appeal by the defendant from an order of the Supreme Court of the District of Columbia, holding a law term, sustaining a demurrer to a plea, and from a judgment for the plaintiffs on failure of the defendant to plead over, in an action for a breach of contract.

<p>Bids for. Public Work; Estoppel;'Government Contracts; Mandamus ; Heads of Departments.</p> <p>1. Where a contracting company bidding under an advertisement by the Government, for proposals for the improvement of a certain harbor, after the rejection of its first bid, makes a second and lower bid for the work under a new advertisement, which last bid is accepted, and the company voluntarily enters into the performance of a contract based upon the last bid, it is concluded as to any supposed rights under the first proposal, and cannot assert that the first bid should have been accepted and so hold the Government for the difference in price between the first and last bid.</p> <p>2. Sec. 3744 R. S. TJ. S. prescribes the form and manner in which contracts on behalf of the Government shall be entered into by its officers and agents, and in effect prohibits any other mode of making such contracts ; and it is not within the power of a court on mandamus to declare that to be a complete and binding contract which the statute declares in effect not to be so without certain formalities.</p> <p>3. Mandamus will lie to enforce a duty plainly ministerial when the right of the petitioner is clear and he is without other adequate remedy; but it will not lie in a case where its effect is to direct or control the head of an executive department in the discharge of an executive duty involving the exercise of judgment and discretion.</p> <p>4. To determine whether the proposal of a bidder under an advertisement by the Government for proposals for public work, conforms to all the specifications and conditions under which it is made, requires the exercise of judgment and discretion on the part of the head of the Department under whom the work is done and who makes such contracts, and is more than the performance of a mere ministerial duty for the breach of which mandamus will lie.</p> <p>5. Whether the head of a Department has the power to reverse the final determination of his predecessor in rejecting a bid to perform public work, and to direct the execution of a contract with the bidder, quaere.</p> <p>6. The acts of Congress of March 23, 1883, and August n, 1888, conferring upon the Secretary of War power to regulate and prescribe forms for letting contracts for public work, do not modify R. S. U. S. Sec. 3744, to the extent of dispensing with the formal execution of such contracts as a prerequisite to their legality and binding effect after the acceptance of proposals.</p> <p>7. Where in instructions to bidders for doing public work it is provided that any conditions” limitations or provisos attached to proposals will be liable to render them informal and cause their rejection, and the right is reserved to the Government to reject any and all bids, and a proposal filed departs from the terms of the specifications as to. the time for the performance of the work, the bid so made may be properly rejected by the head of the Department authorized to enter into contracts for such work, notwithstanding the previous approval and acceptance of the bid by a subordinate.</p>

<p>Criminal Practice.</p> <p>1. The special terms of the Supreme Court of the District kncrwii as Criminal Courts Nos. i and 2, are not separate and independent tribunals, but are component parts of one tribunal, the Supreme Court, and a prisoner may properly be arraigned in Criminal Court No. 1 and tried and convicted in Criminal Court No. 2, the records of both being authenticated by the same clerk and under the one seal of the Supreme Court.</p>

Hearing on an appeal by;the complainant from a decree of the Supreme Court of the District of Columbia, holding an equity term, dismissing a bill to establish a resulting trust. The Court in its opinion stated the case as follows: This is a suit in equity instituted for the purpose of having a deed absolute on its face decreed to be a resulting trust.