Volume 6 — District of Columbia Reports

MotioN to vacate an order passed in Chambers. The Bill in this case was filed for the purpose of having the Court adjudge the defendant unfit and incompetent to execute and perform the office of guardian to. his minor children, and praying “that he be enjoined from exercising any authority or control over them'or either of them, their persons or property, and that he be specially directed and enjoined not, either by himself, his agents or other persons, to interfere with the…

HEARING on habeas corpus. The relator, Andrew Hall, was arrested by the marshal of the District, on a warrant issued by Mr. Justice Wylie, at the instance of George W. Duval, a citizen of Maryland, who claimed him under the fugitive slave law as a fugitive from service.

Libel by the United States and the officers and crew of the United States steamer Quaker (My against the schooner Sally Mears, captured on the high seas and claimed as prize. The Facts are stated in the opinion.

• Certiorari to review proceedings of justices of the peace in a case of forcible entry and detainer. Heard in the General Term in the first instance. The facts are sufficiently stated in the opinion.

5th Rich. II, for forcible entry and detainer. Heard in the General Term in the first instance. The Facts are sufficiently stated in the opinion.

<p>The Maryland Act of 1793, ch. 43, is as appplicable to the possession of a term less than a year as to those of one or more years.</p>

Statement oe the Case. Indictment and plea to the jurisdiction. Heard in the General Term in the first instance. The defendants were indicted for a forcible entry and detainer.

Bilí, for a specific performance of a parol contract to convey lands. The Case is stated in the opinion. The Statute of Frauds is not relied on or intimated in the answer of defendants; but if it had been, it would not apply in this case. For circumstances which take a case of parol sale or exchange of land out of Statute of Frauds. See Butcher vs. Stapely, 1 Vern., 363; Pike vs. Williams, 2 Vern., 465; 9 Peters, 103; 1 Story’s Eq., 759.

<p>1. Where a vessel has been captured jure belli and not under the non-intercourse acts of Congress, and the vessel and cargo have been libelled as enemy property simply, and in that character condemned, the case does not come under the provisions of the act of Congress intended to protect liens which might be established in the case of a seizure where one-half of the property seized goes to the informer, and the other half to the United States.</p> <p>2. The act of Congress of March 3, 1863, providing for the protection of certain liens is incomprehensible and therefore incapable of enforcement by the Court.</p>

This was an action to recover damages for injuries received by the plaintiff from the negligent and unskilful driving by the defendants servant of the defendants carriage, whereby the plaintiff was ran into and suffered injury, &c. Pending the action the defendant died, and thereupon his death being suggested leave was granted to issue a summons to his executrix.

<p>1. Before the passage of the Act of Congress of June 19, 1860, (Stats, at Large, V. 12, p. 59), no Court of this District possessed jurisdiction over the subject of divorce.</p> <p>2. Under the fifth section of said act, a divorce can not be granted by the Courts of this District, when the grounds of it occurred while the parties were domiciled in, and subject to some other and foreign jurisdiction, unless the party applying has resided within this District for two years. This Court will, therefore, not assume jurisdiction to'grant a divorce between parties, neither of whom is or ever was a resident of this District, simply because the adultery complained of was committed here.</p>

<p>PetitioN for leave to file a bill of review.</p>

The suit was brought to recover the amount of three promissory notes made by Bowie on the 1st of January, 1857, for $1,000 each, payable to the order of one Frank Steers, from whom the plaintiff purchased the notes before maturity. The defense was, that the notes were given for a gaming consideration, and that they were, therefore, void in the hands of even a bona fide holder for value.

The Facts are stated in the opinion. The Court erred in refusing to allow us to prove the aver- ' ruents of the declaration, and rejected evidence from which, unaided by express stipulation, the jury might have found, and the law inferred, an obligation to return specie deposits in kind. The uniform custom of banks in the District of Columbia, constitute a part of the contract between bankers and depositors. Renner vs. Bank of Columbia, -9 Wheat., 582; 1 Sm. Lead.

The defendants, Hall and Waters, were, as tenants of Mrs. Scott, in possession of a house in this city, for the unexpired term of a lease, ending June 30, 1864. On the 16th'of June of the same year, Mrs. Scott executed to Spalding and Rapley a five years lease to commence July 1,1864. Hall and Waters received no notice to quit and continued to hold possession after the expiration of their term.

<p>1. A purely legislative power cannot be delegated by Congress.</p> <p>2. The Act of March 3d, 1863, conferred no power upon the President to suspend the privilege of the writ _ of habeas corpus. He derives that power directly from the Constitution itself.</p> <p>3. The power to suspend this writ is not given to Congress; it rests, under the Constitution, with the President alone.</p>

Bill to enforce the provisions of a foreign decree of divorce. The Facts are stated in the opinion. Res judicata. A judgment or decree of a court of competent jurisdiction is conclusive, wherever the same matter is brought in controversy between the same parties or privies.

<p>A larceny having been committed beyond the limits of the District of Columbia, the stolen property was recovered by a private detective and brought into the District, whence four-fifths of it was sent to the owner, the remaining fifth was retained by the detective as compensation for his services ; whereupon the superintendent of police, claiming to act under the authority of the act of of Congress of July 23, 1866, demanded the delivery to him of the property so retained, and upon his refusal so to do imprisoned the detective for disobeying said order. Held, Upon habeas corpus (1) That the act of Congress was not applicable to such a case. (2) That the property having been both stolen and recovered beyond the District limits, the superintendent of police could take no cognizance of the matter, and even if he could his power to imprison for contempt a person nota member of the police force was limited (if such power existed at all) to a period not exceeding two days.</p>

<p>Bill to set aside a fraudulent assignment.</p>

<p>On Appeal from a final decree. Bill in equity for an account.</p> <p>The Facts are stated in the opinion.</p>

The Bill was filed to procure a partition or sale of the real estate of Miles Kelly deceased. The Facts are stated in the opinion.

<p>1. The Acts of Congress of January 8, and February 5, 1867, and the ■ joint resolution of March 30, of that year, construed and the powers and the duties of the judges of election in making the registry of qualified voters defined.</p> <p>2. Where the time is fixed by statute for the hearing of applications to the board of judges of elections to add to or omit from the list of voters the names of particular persons, a petition to this Court for a writ of mandamus to compel the board to register the petitioner’s name will be dismissed as premature when the board has not yet held its sessions for hearing such applications.</p>

Action' of trespass q. c. f. The verdict was for the defendant under the instructions of the Court. Motion by plaintiff for a new trial on a bill of exceptions. The Facts are stated in the opinion.

The Facts are stated in the opinion. The Court having charged that registration and payment of school-tax made a prima facie right to vote, requiring a challenge to be supported by proper showing to defeat that right, and the challenger failing to make any showing in support of his challenge, the Court erred in saying the defendants could exercise any discretion, to reject the plaintiff’s vote.

<p>1. The plaintiff being the holder of a promissory note secured by deed of trust upon lands in Alexandria County, Virginia, made another trust deed, further securing it upon lands in the District of Columbia and then passed it to M., the defendant. The latter deed recited that “whereas the said S. is anxious to give to the said M. further and additional security for the payment of the said note in case the same is not realized from and under the aforesaid deed of trust on the lands in Alexandria County, now, &c.” In a subsequent clause of the same deed it was provided that “if the said promissory note is not paid when the same shall become due, or be not within sixty days thereafter realized from and under the first deed of trust” then the trustee (in the second trust) should sell. It was contended that the latter trustee was not authorized to sell the lands in the District until the remedy was exhausted upon the land in Virginia, but it was held that the deed was to be construed as meaning that if the note was not paid at maturity or payment was not in some way obtained out of the land in Virginia within sixty days after the maturity of the note the trustee might sell.</p> <p>2. The rule that the language of a deed shall be taken most strongly against the grantor is not to be resorted to unless all other rules of interpretation fail.</p>

<p>The power to lay a tax on commerce in the form of a tonnage duty on vessels is vested in Congress alone; hence an ordinance of the corporation of Washington which, under the name of “harbor fees,” imposes such a duty on vessels coming to its port is void.</p>

<p>1. A Court of Equity will not aid anyone in an attempt to enforce a legal right, which he can only obtain by a violation of conscience.</p> <p>2. A tax deed which was procured in pursuance of a fraudulent arrangement between the original owner and the tax deed holder to suffer the property to be sold for taxes in order to defeat the creditors of the owner, will be set aside as a cloud upon the title at the suit of a purchaser under a decree made in a creditor’s suit.</p>

Bill for an injunction. Certified to the General Term for hearing in the first instance. The Facts are sufficiently appear in the opinion.

Bill in equity to remove a cloud from complainant’s title to square No. 90 in the City of Washington. The Facts are stated in the opinion.

The plaintiff had leased to the defendant a house and lot situate in the City of Washington. The latter becoming in arrear for the rent,.suit was brought against him, his wife being joined as a defendant and judgment was rendered against both. The Court below reversed the judgment, and the plaintiff appealed to the General Term.

<p>1. The earnings of the wife, and whatever has been purchased with it belong to the husband, and are liable for his debts.</p> <p>2. The relation of husband and wife cannot exist between slaves, although they live together as such, and children are born of their union; nor can their continued cohabitation after emancipation raise, as in other cases, a presumption of marriage.</p> <p>3. Defendant claimed under a deed of settlement made by one trustee to another, both of whom were strangers to her for her benefit the deed was not signed by her, but in it she was described as the wife of B.</p> <p>Held, That she might claim under the deed without being estopped to deny that she was the wife of B.</p> <p>4. In equity technical estoppels are not known, but proofs of that sort are considered as evidence to be received if competent, and considered only for what they are worth.</p> <p>5. In civil, equally as in criminal oases, where the question at issue is the existence of a marriage, the affirmative must be made out by the party who asserts it. •</p>

Bill in equity by a judgment creditor to set aside an alleged fraudulent conveyance. The Facts are stated in the opinion.

Bill to compel conveyance of certain lands in California. Certified to the General Term for hearing in the first instance. The Facts are stated in the opinion.

<p>Motion for a new trial on exceptions taken in an action of replevin.</p> <p>The Facts are fully stated in the opinion.</p>

Certified to the General Term for hearing in the first instance. The plaintiff, Davidson, was the agent of the Washington and New York Steamship Company. ' In that capacity he The flour so received by Davidson was consigned through to the consignees in New York, and was in Georgetown in transitu only and not for the purpose of use or sale in that place. Whilst the flour was thus in Georgetown the corporation flour inspector demanded the right to inspect the same.

The Action was brought to recover damages for injuries resulting to the plaintiff by being thrown from his buggy and breaking his arm in consequence of running into an open sewer ditch on Sixth Street near I) Street’ northwest in the City of Washington. The evidence showed that lamps had been placed aroutid the ditch and that they had been lighted, but there was no proof that they were burning at the time the accident occurred.

.Motion for a new trial on exceptions. Action against the defendant, as drawer of a bill of exchange for 2,500 pounds on BenjaminThoruton, London. The bill was purchased by the plaintiffs for $11,000 in gold, was accepted by the drawee and, at maturity, was protested for non-payment.

The Facts are sufficiently stated in the opinion. The evidence of the contract for the sale of lumber, and of the giving a note in payment therefor, which the defendant below admitted by his demurrer to the evidence, was evidence on which no judge would have been justified in directing the jury to find lor the defendant. The plaintiffs have declared against the defendant as endorser, and sue also upon the common counts.

<p>This Court possesses jurisdiction concurrently with justices of the peace where the amount in controversy lies between fifty and one hundred dollars.</p>

Action against a street railway-company to recover damages for injuries received in being thrown by the conductor from a street car in motion, verdict for plaintiff and motion for a new trial on exceptions. The only question in the case was whether the Court below erred, in overruling a prayer of the defendant that the plaintiff was not entitled to recover exemplary damages. , I. The Court below erred in its instruction as to the measure of damages in this case.

Statement oe the Case and Decision. Indictment for grand larceny. The defendant challenged the array of grand jurors and moved to quash the indictment. The motion was overruled, whereupon an appeal was taken to this Court.

Motion to dismiss an appeal brought by the United States from a judgment of the Criminal Court quashing an indictment and discharging the prisoner. The Facts are fully stated in the opinion.

The defendant had caused the arrest of the plaintiff by a police officer without warrant, on suspicion of having stolen his watch and money. The only point in the case considered by the Court was raised by the third exception, and was as to the right of the defendant to justify by showing that he acted under the advice of a police officer.

Bill in equity by a judgment creditor to obtain the cancellation on the ground of fraud of two deeds made by the judgment debtor, or at all events to have the property conveyed sold, and the plaintiffs debt paid out of the proceeds.

<p>1. Where on a return to an application for mandamus against the Board of Registers of Flection to compel the striking of certain names from the list of voters, it appears that the board has fully exercised the judgment and discretion entrusted to it by the law in determining the qualifications of applicants, and that the board is satisfied that the persons registered are residents of the District, and it does not appear that any fraud or corruption was practiced by the board, the Court will not go behind the answer to take proof whether the persons registered were voters.</p> <p>2. The writ of mandamus will not be issued where it appears that to do so would be futile to obtain the object sought by the relator.</p>

<p>1. The board of judges of election'created by the act of February 5, 1867, is not a judicial tribunal whose decision is final, but its acts are subject to the investigation'and revision of this Court, who in a contested case may go behind the official return for the purpose of ascertaining who was really elected.</p> <p>2. Soldiers of the United States army do not acquire nor lose their citizenship by reason of being stationed in the line of duty at any particular place, no matter how long their occupancy of such place may continue.</p> <p>3. A persdn leaving temporarily and for a particular purpose, his abode or fixed habitation, as for business, pleasure, or health, with the intent of returning to the same as soon as such purpose shall be accomplished, does not lose his residence or habitancy.</p> <p>4. So, soldiers and seamen may be legal residents and inhabitants of a place although they may have been absent therefrom for years, they do not lose their residence or domicil by following their profession.</p>

<p>Libel in admiralty to condemn as prize a vessel and cargo captured violating a blockade.</p>

<p>1. A personal judgement or decree obtained in any State of the Union over a non-resident who has not been served with process within the State, or who has not voluntarly appeared and subjected himself to the jurisdiction of the Court, has no extra teritonal validity, and does not come within the operation of the fourth article of the Constitution declaring the effect within one State of judicial proceedings had within another; this rule includes decrees of divorce.</p> <p>2. The Orphans’ Court has no jurisdiction to inquire whether a father be a lit person to be intrusted with the personal custody and education of his children; its jurisdiction as to him extends only to the due care and management of the infants estate.</p> <p>3. Where, for any reason, a father becomes incompetent or unfit to act as the natural guardian of his children, the remedy is in a Court of Chancery.</p>