Volume 7 — District of Columbia Reports

Trespass q. c. f. Verdict for plaintiff and motion for a new trial on a bill of exceptions. The Facts appear in the opinion.

<p>Appeal from an order refusing to dissolve an injunction restraining the'payment of certain moneys by the defendant. Plaintiff moved to dismiss the appeal.</p>

<p>1. In a suit for divorce on the ground of adultery, the admissions of the respondent to third parties are not competent evidence to sustain the charge.</p> <p>2. It is the manifest intention of the statute that in applications for divorce the statements or admissions of the parties as to what transpired between them in their marital relations should not he adduced in evidence by either party as proof of the facts charged in the bill or petition.</p>

<p>1. A motion under the 40th Rule of Court to produce documents or papers on the trial of the cause is premature if made before the cause is at issue.</p> <p>2. Such a motion will also be overruled when it does not appear that the opposite party is in possession or control of the papers or documents.</p> <p>3. The 40th Rule of Court does not apply where the production of papers is sought in aid of a personal action to recover damages for a tort.</p>

<p>Where, on a bill filed by a judgment creditor in behalf of himself' and others who may afterwards come in, an equity of redemption is decreed to be sold, the court will apply the proceeds, after the satisfaction of the trust, to the payment of the judgments according to their priority in point of time.</p>

MotioN by plaintiff for a new trial on exceptions, certified to be heard in General Term in the first instance.

Certified to the General Term for hearing in the first instance. This was an application for a writ of mandamus to compel the Secretary of the Treasury and the Comptroller of the Treasury to cause to he paid to the petitioner $248.50, being 20 per cent, upon $1,242.50, the amount of his wages as a machinist in the Printing Bureau at $3.50 per day during the year 1867. The case was heard on a motion to dismiss the rule to show cause.

<p>1. Assumpist will lie by a contractor who has in good faith performed his work, though hot in the manner nor within the time prescribed by the contract, if the other party has sanctioned or accepted the work; and the contract will be applied by the court as far as it can be traced.</p> <p>2. The irregularity of filing an amended declaration wdthout leave of ' court is cured by pleading to it.</p> <p>3. A summary of an account made by a witness from the defendant's account books is inadmissible as evidence.</p> <p>4. Where one contracts to make payment by the delivery of certain municipal securities it is no defense that at the time the payment became due their delivery was rendered impossible by the fact that the municipality had failed to issue them, for he binds himself at his own risk for the act of the municipality.</p> <p>5. A tender of chattels, or other property not money, in order to be a bar to an action, or amount to payment, must be made in such manner as to vest the property in the creditor and enable him to recover it in a future action.</p> <p>6. Where a tender is relied on as a defense it must be pleaded.</p>

Statement of the Case. Appeal from a decree setting aside a deed of trust made by the defendant, John F. Heider, to William Berger and William Heider, conveying certain real estate in trust for the sole use and benefit of his wife, Mary Heider, during her natural life, and after her death to convey to his children.

Motion by defendants for a new trial on a bill of excep'lions in an action by two joint plaintiffs to recover of the defendants the sum of $10,000, money had and received .for the use of the plaintiff. The defendants pleaded the .general issue, and on this issue the cause was tried.

The Facts appear in the opinion. The lease is still a valid, subsisting lease. It is not void upon a breach of covenant to pay rent, but only voidable. Doe vs. Wandlass, Term R., 116; Taylor on Landlord and Tenant, Secs. 492, 714. The lessor was bound by the terms of the lease to make his rent by distress if sufficient effects were found on the premises.

<p>Libel of ^information to recover bounty or head money under the Act of June 30, 1864.</p>

<p>1. In a libel of information in a proceeding in prize filed by the captors under the Act of June 30, 1864, it is irregular to admit the United States as a defendant at the suggestion of the district attorney. He has no authority to make such a motion on its behalf or the court to grant it.</p> <p>2. A formal demurrer to a libel of information in prize is a form of pleading unknown to courts of prize.</p> <p>3. Before condemnation as prize all captured property belongs to the Government; the captors possess no title to the property until their right has been adjudicated by the court.</p> <p>4. Congress by its legislation, has placed the control of prize pro • ceedings, so far as the interests of the Government are concerned, in the Secretary of the Navy.</p> <p>5. Under the Act of 1864, on the failure of the Government to: institute proceedings in prize within three months after the capture, the captors may institute such proceedings in any district and may use, if necessary to the protection of their interests, the name of the United States.</p>

Action upon the common counts for goods sold and delivered. Statement oe the Case. Plaintiff was a merchant residing at Bangor, Maine, and engaged there in buying and selling shingles and other kinds of lumber. During the season of 1864 he received several orders from the defendant, then residing and doing business at Washington, D. C., for lumber of various kinds, including large quantities of spruce and cedar shingles, and made seven different shipments to him.

The Facts are sufficiently stated in the opinion. It is manifest that this court has no jurisdiction of this case, because the defendant was not an inhabitant of the District of Columbia or found therein at the time of serving the writ issued in this case, but was chartered by the State of Kansas, as stated in complainant’s bill, and therefore the plea to the jurisdiction must be sustained and the complainant’s bill dismissed with costs. Act of Congress, February 2,2, 1867.

<p>Bill in Equity for an injunction.</p> <p>The Pacts are stated in the opinion.</p>

<p>The Board of Aldermen and Board of Common Council of the city of Washington had no power to pass the Act of the 17th of April, 1865, offering a reward of $20,000 for the arrest and conviction of the assassins of President Lincoln, and thereby to bind the city.</p>

Motion by defendant for a new trial on a bill of exceptions in an action of assumpsit. The Case is sufficiently stated in the opinion.

Hearing in General Term in the first instance on a bill filed to set aside a trustee’s sale of real estate. The Facts are stated in the opinion. 1.

<p>1. Administrators are bound by the admissions of their intestate as to the usurious character of a promissory note held by them as assets of the estate.</p> <p>2. While a party to a negotiable instrument cannot impeach its validity after its negotiation, yet as the signature of a married woman thereto is a nullity by reason of her incapacity to contract, her testimony is admissible to impeach such a paper, although purporting to be made by her.</p> <p>3. So, the joint note of husband and wife is the note of the husband alone, and when such a note is secured upon the separate property of the wife, her testimony will be admissible to impeach the paper upon the ground of usury whenever it is sought to enforce a sale of her property to satisfy the note.</p> <p>4. The power of a married woman to bind her separate estate by her contract is sub modo, only being limited to the terms of the settlement.</p>

Pull Bench. Appeal from a decree granting an injunction. Statement oe the Case. Held: That the equity jurisdiction did not extend to this case.” Hale vs. Cushman, 6 Met. (Mass.), 425. The principles elaborated above apply with equal force to the new government of the District of Columbia.

The Facts are stated in the opinion. The judgments of this court, even if voidable for error, cannot be impeached collaterally. Huff vs. Hutchison, 14 How., 586. Where a regularly licensed solicitor of the court appears and confesses judgment, the judgment is good, notwithstanding the fact that the solicitor had no authority for his appearance.

<p>Appeal from a decree dismissing a bill filed to obtain a construction of a will.</p> <p>The Facts are stated in the opinion.</p>

Statement of the case by Mr. Justice Olin : Complainants filed their bill setting forth that complainants and defendants were the only heirs-at-law of James Fitzgerald, who died seized of certain real estate located in this District and described in .the bill. The bill prayed a partition or sale of the property and a distribution of the' prqceeds.

Motion to dissolve an injunction. In the Spring of 1839, Abraham Barnes purchased 125,000 cuttings of the morces multicaulis of J. F. Callan, agent of the Washington City Silk Company; and gave his negotiable notes, with M. Clarke and Jno. Mason, as sureties for the price of the same. The aggregate of the notes was §5,000, payable, it was believed, by Barnes in two payments of $2,500 each, on the 15th of October and November, 1839.

M. Wright, by his will, dated May 15, 1847, after devising parts of his real estate, gave to his three nephews “ f 500 of the scrip or stock in the Chesapeake and Ohio Canal Company standing in my name; also the stock standing in my name in the Farmers and Mechanics’ Bank of Georgetown, said stock being for $2,500; also $1,000 of the stock of the Franklin Insurance Fire Company of Washington standing in my name.” He then gave the sum of “ $2,000 to A, and $1,500 to B, and…

The plaintiff had a fieri facias on a justice’s judgment, issued by defendant and laid on Gannon’s horse after dark on Saturday; the legality of which levy being doubted, it was agreed .the horse should be placed in the livery stable of plaintiff until the judgment should be superseded. On the following day (Sunday) the recognizance was entered into before the defendant, and antedated on the preceding Saturday.