Volume 8 — Appeals, District of Columbia

Hearing-on an appeal by the defendant from a judgment on verdict in an action on a contract. The facts are sufficiently stated in the opinion.

<p>Hearing on an appeal from a decision of the Commissioner of Patents in an interference proceeding. ■</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by the plaintiff from a judgment on verdict in an action of ejectment.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is an appeal from a judgment in an action of ejectment, brought by the appellant, Max Lansburgh, to recover the possession of a strip of land now included in and made' a part of Columbia road. The defendant, the District of Columbia, entered a plea of not guilty.</p> <p>On the trial, it was conceded that the title to the land in controversy was in the plaintiff at the time it was taken by the defendant for the purposes of a public road, and the plaintiff rested.</p> <p>The defendant’s evidence tended to show the following facts: Columbia road was, prior to 1887, a macadamized public road, thirty-three feet in width. Some of the abutting property owners wished to have the road widened and improved, and about that time began proceedings for that purpose. Plaintiff joined in the movement, and agreed, with others, to donate the necessary strip from his abutting land. ' A written application, signed by the ' plaintiff and others, was made to the Commissioners, requesting the widening of the way to loo feet between certain points. In this a dedication was made of the necessary land. This was received and filed April 28, 1887.</p> <p>Certain orders were made by the Commissioners with a view to widening the road; but the matter was not perfected because of certain objections not necessary to be detailed. In the spring of 1888 an effort was again made by parties interested to have the road widened. George Truesdell and William Tindall were specially active in the matter, and, with some others, made deeds dedicating the land, and the work was begun. When the curb was laid as far as plaintiff's land, the District Superintendent of Roads declined to go on because he learned that the plaintiff had not- made a deed.</p> <p>Plaintiff lived in Baltimore, and Truesdell and Tindall went to see him May 15, 1888, to .procure the deed that he . had formerly promised. They carried a blank deed with them for his signature. Plaintiff made no objection to signing the deed, but it was too late to obtain a notary to take his acknowledgment. Plaintiff said that he was going away the next day, and would execute and return the deed when he came back. Being then informed that the work was waiting upon his deed, or a written promise that he would make one, he wrote the following letter, and delivered it to them for delivery to the Commissioners:</p> <p>“1846 Madison Avenue,</p> <p>“Baltimore, May 15, 1888.</p> <p>“ To the Commissioners of the District of Columbia:</p> <p>“ Gentlemen : You may proceed with' the improvements of Columbia road, and on my return from Quantico I will execute the deed for the sixteen and one-half feet strip for the widening of said road.</p> <p>“ Very respectfully,</p> <p>(Signed) “ Max Lansburgh.”</p> <p>The letter was delivered the next day, and the work proceeded. A curb was laid and a gutter also at a considerable cost, and trees were planted along the street as widened.</p> <p>Plaintiff gave a different version of the interview leading to the letter aforesaid. He said that the parties agreed to have his property graded and to stipulate that the land should revert to him in event the whole road was not widened within a year. They also represented, untruly, that all other owners except one had made a like donation. He produced the deed left with him, which is evidently the same prepared for execution in 1887, and which he had not signed then. It was still unsigned. The grant is to William Tindall for the purpose of widening the road, and contains a condition that if the grantee shall use the land for any other purpose, it shall revert to the grantor. A ■ further condition was interlined in the foregoing, as follows : “ Or if the said Columbia road shall not be widened between Boundary and Nineteenth street extended, to sixty-six feet within one year from the date of this deed.” He said that he would not sign it without consulting counsel, and retained it for that purpose. He denied that he was informed that the work had been commenced and then stopped in order to procure his grant.</p> <p>For the defendant, in rebuttal, Truesdell and Tindall positively denied plaintiff’s statements with regard to the representations made him, and testified to perfect fairness in procuring the letter.</p> <p>Plaintiff admitted that he saw the improvements after they had been made. It does not appear when he first denied the effect of the letter of dedication ; but in the record of the proceedings of the Commissioners, under date of October, 26, 1888, he'is recorded as saying that he would withdraw his consent to taking his land because the Commissioners had agreed to grade his land and had failed to do so. The record proceeds to say that the Commissioners denied this. ■</p> <p>The substantial effect of the entire charge of the court was that plaintiff’s letter of May 15, 1888, if acted upon by the Commissioners, was a sufficient dedication of the land to public use, from which, after the occupation and improvements thereof, and the expenditure of money thereon, the plaintiff could not withdraw, and that the verdict should be for the defendant unless it appeared that the letter was procured through fraudulent representations, as testified to by the plaintiff.</p> <p>Plaintiff offered a special prayer, which the court refused, to the effect that if the dedication was to be consummated by the delivery of a deed, ¿s therein described, then the letter did not have the effect of a dedication. Exception was duly taken to that part of the charge substantially stated above. The jury found for the defendant; and from judgment on that verdict plaintiff has appealed.</p> <p>1. The claimed dedication or donation was to be consummated by deed. The letter of Lansburgh, if anything, was not a dedication, i. e., a grant of an easement, but evidence of an intention to make a donation, i. c., a convey-anee of a fee-simple title, if the conditions existed that he was led to believe did exist, to wit, that the rest of the owners had donated. The idea of dedication must rest on the clear assent of the owner, and not on words equivocal, uncertain, or ambiguous. The act must be voluntary, not coerced. Irwin v. Dixion, 9 How. 30; Angelí on Highways, 113, 116; 2 Dillon on Munic. Corp., sec. 499 and cases cited.</p> <p>2. The dedication, if evidenced by the letter, was not accepted by the public. The Commissioners had no authority to accept a dedication. They were merely'officers of a municipal corporation (20 Stat. 102 ; Barnes v. District of Columbia, 91 U. S. 540), without authority to act for the public generally. Angelí on Highways, 137, 141 ; 1 R. I. Rep. 93. Authority to make the State or-municipality responsible for the maintenance of the highway and liable for negligence therein is a necessary. accompaniment and element of the authority to accept a dedication. Angelí on Highways, 135 ct seq. Dillon on Mun. Corp., sec. 505 and cases cited. Such power is not given by the act of 1878, and did not exist before. Because it carries the burden of responsibility, special legislation is necessary to create it, and there had been no such legislation. Not only is no such power conferred on the Commissioners, but it is expressly denied in the act of 18/8.</p> <p>3. The Commissioners never accepted or acted upon the letter.. There could have been no acceptance until the Commissioners determined to widen the road and fixed a definite route. Angelí on Highways, 141; Simmons v. Cornell, 1 R. I. Rep. 519. Before final determination to do so, Lansburgh withdrew his letter.</p> <p>4. There was no estoppel of Lansburgh from denying acceptance. The fact that work was done does not evidence an acceptance or create an estoppel, particularly as the Commissioners had no authority to expend the public money in widening the road. Dillon on Mun. Corp., sec. 505 ; State v. Bradbury, 40 Maine, 154.</p> <p>5. Lansburgh’s consent was conditional upon the road being widened within one year; that condition is expressly made in the deed and, that having failed, the pretended dedication failed. The road was not widened within one year, nor has it yet been lawfully widened. Condemns tion proceedings having failed, the land attempted to be taken is no part of the highway, and the road remains of the original width.</p> <p>6. The District of Columbia acquires no title or right to possession by dedication. If the letter was a lawful dedication, the District of Columbia obtained no title or right, to possession, and plaintiff was entitled to judgment. In the absence of a deed- dedication amounts only to the grant of an easement or servitude. Angelí on Highways, 104. The fee and -right to possession remain in the citizen, subject to the easement only. If the citizen obstruct the public use, the remedy is abatement of the nuisance, but he is entitled to possession and may maintain ejectment. Angelí on Highways, 365; Goodtitie v. Alker, 1 Burr. 133 ; Peck v. Smith, 1 Conn. 135. The District of Columbia stands in the same relation as a citizen. The United States are the public.</p> <p>Where the conduct of an owner of land is such as clearly indicates an intention to dedicate, and the public, or private persons, have acted upon his conduct, and have acquired valuable rights which would be lost by an interruption of the enjoyment of the way, he cannot by subsequent acts o.r declarations impair the rights of the public nor take away those of the persons who have relied upon his conduct. This doctrine of equitable estoppel is applicable in -cases at law. Dickerson v. Colgrove, 100 U. S. 578 ; Kirk v. Hamilton, 102 U. S. 68.</p>

Heaking on an appeal by a defendant indicted for and convicted of murder. The Court in its opinion stated the case as follows: The appellant, John Harris, otherwise called Patsy Harris, was found guilty upon an indictment for murder, in the Supreme Court of the District of Columbia, and has brought his cause here upon exceptions tafeen to the rulings of the court below on the instructions asked at the trial and to portions of the charge given by the court to the jury.

Hearing on an appeal by the Commissioners of the District of Columbia' from an order directing the issue of a peremptory writ of mandamus to compel them to take the necessajy steps to pay an award in condemnation proceedings. The Court in its opinion stated the case as- follows: This is an appeal from an order of the Supreme Court of the District of Columbia directing the issue of a peremptory writ of mandamus to the Commissioners of tire District.

<p>Hearing on an appeal by the plaintiff from a judgment on a verdict directed by the court in an action of ejectment.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is an action of ejectment brought by appellant, Franklin Jennings, as plaintiff below, against the appellee, Elizabeth Webb, as defendant, to recover an undivided one-half interest in a certain lot in square 107 in the city of Washington.</p> <p>(1) After proving title from the United States in John S. James and C. A. James to the lot in controversy, plaintiff offered a deed from them to Paul Jennings and Frances Jennings, his daughter, dated May 5, 1857. This deed, naming the grantors as of the “ one part,” and the grantees as “ of the other part,” and reciting a consideration of $ 1,000 as paid, conveyed the premises to the “ said party of the second part, his heirs and assigns forever,” to have and to hold, etc., “ unto him the said party of the second part, his heirs and assigns,” etc. This deed was properly acknowledged and recorded.</p> <p>(2) The bill of exception recites the parol evidence given by plaintiff as follows:</p> <p>“ Further evidence was given by the plaintiff on his own behalf tending to show that he is 59 years old, and is the son of Paul Jennings, who, in 1854, purchased and entered into possession of the east part or third of said lot, adjoining on the east the part described in the declaration, and took his children, consisting of this plaintiff, his said sister, Frances, and his brothers, John and William Jennings, to reside with him in the frame house situated thereon, numbered 1804 L street; that there was a house of the same character situated on the part of said lot described in the declaration, numbered 1806 L street; that said Paul Jennings continued to occupy said house, No. 1804 L street, with his said children and his second wife, until said conveyance of No. 1806 to him and his said daughter, Frances, when he caused the tenant occupying No. 1806 to remove therefrom; and further evidence was given, consisting of the testimony of the plaintiff and other witnesses, tending to show that said Paul had a door cut and kept always open in the area partition between said houses, for easy access between the two, and said Paul, for about three years after the death of his wife, used, to sleep in one house (No. 1804) and take his meals in the other (1806); that the defendant was the daughter of said Paul’s first wife by a former husband, and came to Washington from Virginia in 1857 ; that said Frances was not of sound mind and was incapable of taking care of herself or attending to business, but could and did work and earn some money at washing and ironing; that said Paul placed said Frances in No. 1806 and also placed the defendant therein, and stated in the presence of the plaintiff and the defendant that he placed her therein to take care of said Frances as long as she (Frances) should live, they to pay the taxes thereon from the renting of rooms and their other earnings, and that at said Frances’ death the same was to go to his sons, John and Franklin ; to which the defendant made no reply; and that the plaintiff gave the said Frances and the defendant some money to help pay the taxes, at one time giving them $100; that said Paul removed and lived away from No. 1804 for some time, but returned thereto and died therein in 1874, aged about 85 years, leaving the plaintiff, Frances, and John, as his only children. John died, leaving children; William had died before their father; that'said Frances and the defendant continued to occupy No. 1806 until six or seven years ago, when Frances was put out by the defendant, and she died in the poor-house a year or two afterwards, intestate and never having been married ; that the defendant has since remained in possession and refused to give it up ; that before the other suit, four or five years ago, she told him the house was hers ; said she had a tax-title deed.</p> <p>“The plaintiff testified in his own behalf that said Paul, bis father, was a slave in Virginia, owned by President Madison, and was his body servant before and while he was President, and became free before he purchased the property in question ; that the mother of the plaintiff and of his said sister, Frances, and brothers John and William, was also a slave in Virginia, belonging to Charles P. Howard, near Orange Court House ; that the father and mother of the plaintiff and of his sister Frances and brothers John and William were married according to the custom of Vir- ' ginia slaves, and lived as husband and wife with their children in a house by themselves, always recognized and treated the plaintiff and his brothers and sister as their children as long as their mother lived, and the father did so as long as he lived, and the children recognized and treated them as their father and mother and each other as brothers and sister; that up to the time of the death of the mother the father, while living with his master in Washington, used to go and stay with her in Virginia for a month or two at a time, and sometimes longer, occupying the same house with her and their children exclusively, and he was with her when she died and for some three weeks prior to her death. On cross-examination he stated that their mother died when plaintiff was about seven years old ; that he did not know of his own knowledge about the marriage of his parents, but that his uncles in Ohio knew about it ; and testified that in 1855 or 1856 the children became free and their father brought them to Washington, and they all lived with him on the premises No. 1804 L street; that some four years before the war the plaintiff went to live with one of his two uncles living in Ohio, and lived in Ohio in all about sixteen years, and settled in Dumfries, Virginia, in 1880.</p> <p>“ Testimony was also given by other witnesses that said Paul and said children lived together on the premises No. 1804 L street, and that he recognized and treated them as his children and always so called them, and they treated, called, and recognized him as their father and each other as brothers and sister, both among themselves and to and among others.</p> <p>“(3) And the plaintiff offered and read in evidence the will of said Paul Jennings, duly probated in this District on the 29th day of September, 1874, as follows :</p> <p>“ I, Paul Jennings, of the city of Washington, D. C., ' being- of disposing mind and memory, declare this to be my last will and testament.</p> <p>“ I will and bequeath to my two sons, John and Franklin Jennings, my house and lot, situated on the south side of L street, between 18th and 19th Sts., and known as number 1804 in the city of Washington, D. C., subject to the following conditions, viz.: That the house and lot shall be jointly occupied by my said sons, John and Franklin, or in the event of their death, by their respective heirs, for the period of five years, commencing- from the date of my death and at the expiration of the said five years, to be sold by my executor, hereinafter named, and the proceeds thereof, after deducting ail lawful expenses, shall be equally divided between them, or, in the event of their death, between their heirs at law. And it is further conditioned that before the bequest thus made shall pass to my two sons, as aforesaid, they shall jointly pay to my daughter, Frances Jennings, the sum of five dollars, lawful money of the United States, each and every month, for the period of five years, commencing from the date of my death ; and that my future wife, Amelia Dorse}-, shall have the right and privilege if she so desires, of occupying a part of my said house for the period of five years, free from all rent or demands ; such occupancy consisting of one good room, which she may elect in said house. And it is further directed, that if either or both of my sons should decline to occupy the house during the five years aforesaid, then the said premises to be rented less the room occupied by my future wife, and the proceeds thereof to be equally divided between them, or if either of my said sons should occupy the said house, then he to pay the other a monthly sum equal to his proportion of a fair rental for the same.</p> <p>“ I further will and bequeath to my said sons John and Franklin Jennings, all my personal effects, and whatever interests I may have, real, personal or mixed.</p> <p>“ I furthermore appoint Samuel V, Niles, of Washington City, D. C., the executor of this my will.</p> <p>“ In testimony whereof I, Paul Jennings, have to this my last will and testament, subscribed my name, and affixed my seal, this thirteenth day of September, A. D. 1870.</p> <p>“Paul Jennings. [L. S.j”</p> <p>The foregoing will was properly executed and attested.</p> <p>(4) The plaintiff having closed, the defendant moved the court to instruct the jury to return a verdict'for her upon the ground' “ that the evidence was not sufficient to warrant the jury to find that the plaintiff and said Frances were the legitimate children of Paul Jennings, or that the plaintiff was one of the heirs at law of said Frances or said Paul or entitled to inherit from her or him. ” The motion was granted, a verdict was returned for defendant, and from judgment thereon-plaintiff has appealed to this court.</p> <p>1. If these parties had been white, or free-born colored people/there could be no possible question. The relations between father and child, the recognition of each other as such, and the living together as husband and wife, being proved, the law would certainly permit legitimacy to be inferred. Frank v. Hirsh, 3 App. D. C. 491 ; Lawson on Presumptive Evidence, p. 107 B; Strode v. Magorvan, 2 Bush, 627 ; Gaines v. Hcnnen, 24 How. 553; Gaines v. New Orleans, 6 Wall. 690; United States v. Route, 33 Fed. Rep. 246. In the last case the court says this rule is especially applicable among slaves and is recognized by Congress in sec. 4705 Rev; Stat., which relates to pensions to colored soldiers and their widows. See also Green v. Norment, 16 D. C. 88.</p> <p>2. Congress has legislated with respect to the rights of colored persons, formerly slaves ; the first legislation being in behalf of those who came to reside in this District. Act of July 25, 1866 (14 Stat. 236), incorporated into R. S. D. C. as Secs. 724, 725 and 726. Plaintiff’s case is clearly comprehended in the provisions of the latter section. Subsequently, to meet the cases of those who had never resided in this District, the act of February 6, 1879, was passed; and the proof of marriage or custom in this case was sufficient to comply with the requirements of that act. See Thomas v. Holtsman, 18 D. C. 62.</p> <p>That the agreement of the parties to assume the relation of husband and wife, and the consent of their masters, may be presumed from the acts of the parties has been held in numerous cases. Andrezos v. Page, 3 Heisk. 653 ; Jones v. Jones, 36 Md. 447 ; Diggs v. Wormley, 21 D. C. 477 ; Francis v. Francis, 31 Grat. 283 ; Scott v. Raitb, 88 Va. 721.</p> <p>Among similar statutes passed by most, if not all, of the former slave States was that of Virginia of 1866 (Code of 1887, sec. 2227). If this act is applicable to this case, there can be no question that under it the proof was ample.</p> <p>We recognize that the descent of real estate is governed by the lex rei sita;, but it is equally true that the law of the place where the parties were domiciled at the time of the marriage governs as to its validity and the legitimacy of the offspring. The latter rule is not an invasion of or in conflict with the other, but proceeds from the Jus gentium, which is part of the law of every country. Story on Conflict of Laws, secs. 79, 80, 80a, 105, 121, &c.; 2 Kent’s Com. p. 91 (marginal); Washburn on Real Property (5th ed.), p. 222, sec 4.</p> <p>Legitimation by legislative enactments has been very generally resorted to as a needed and legal remedy for the condition in which former slaves were left after the war'. They have been upheld and commended by the courts of the States in which they were passed, and have retroactive effect where vested rights have not accrued. 1 Bishop on Mar. and Div., secs. 162, &c.; Cooley's Const. Limitations (6th ed.), 458-9 ; Andrezos v. Page, 3 Heisk. 653 ; Rice v.Rice, 31 Tex. 174 ; Hottey v. Clark, 37 Id. 686 ; McKnight v. State, 6 Tex. Ct. of//Appeals, 158; State v. Adams, 65 N. C. 537 ; Scott v. Raid), 88 Va. 721.</p> <p>Such legislation relates to the status of the parties and has extra-territorial effect, provided it is not contra bonos mores, and does not prejudice the powers or rights of other governments or their citizens. Wharton’s Conflict of Laws, secs. 173, 249, citing Reconstruction Acts, and 250; Honey v. Clark, 37 Tex. 686, and McConico v. State, 49 Ala. 6.</p> <p>Marriages between slaves, or the relation in which they lived together as husband and wife, recognizing the offspring as their children, &c., were never unlawful; such intercourse was never regarded as illicit, nor were the children regarded as bastards or of corrupt blood. Bouvier’s Law Diet.,.title “ Contubernium1 Bishop on Mar. and Div. 163'11; Jones v. Jones, 36 Md. 447; Rice v. Rice, 31 Tex. 174.</p> <p>This Virginia .act dispenses with the necessity of the rites of matrimony, but not with the consensual relation of husband and wife. This constituted a valid marriage at •common law ('Meistcr v. Bissell, 6 Otto, 76), which will be presumed to prevail in other jurisdictions till the contrary is shown.</p> <p>So far as this record discloses, this is the ordinary and common case of slaves living together and having children, who are, of course, without inheritable blood. The parents were incapable of contracting, not excepting the contract of marriage. Hale v. United States and United States v. Roach, 92 U. S. 27; Hall v. Mullin, 5 Ii. & J. 190; Bland v. Dowling, 9 G. & J. 27.</p> <p>Paul Jennings died in 1874, five years prior to the pas-' sage of this act, the defendant being in possession under claim of title. Her title could not be divested by such subsequent legislation, nor can this act operate retrospectively. Donovan v. Pitcher, 25 Am. Rep. 634.</p> <p>The act of Virginia of 1866 was passed twenty-three years after the death of the mother and ten years after all the parties had left the State. It is somewhat difficult to see how it could have any such extra-territorial effect, and it is apparent that it could not have. Story’s Con. Laws, sec. .278; Scott v. Sanford, 19 How. 393, 405.</p>

<p>Hearing on an appeal by the United States from a judgment on a verdict directed by the court for the defendant sureties in an action on a .bond against principal and sureties.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is a suit at common law upon a bond given to the United States by the appellee, Joseph R. West, as principal, with the appellees, William S. Thompson and William B. Webb, as. sureties, to secure to the United States the faithful performance, by West, of the duties of the office of disbursing agent of the Treasury Department, to which he had been appointed, at or about the time of the execution of the bond (December 11, 1891), by the then acting Secretary of the Treasury.</p> <p>The bond was for the penal sum of three thousand dollars, and. the condition of it was as follows :</p> <p>“Whereas, the Secretary of Treasury has, pursuant to law, constituted and appointed the said Joseph R. West a disbursing agent of the Treasury Department: Now, therefore, if the said Joseph R. West shall well and truly execute and discharge all the duties of the said office of disbursing agent according to the laws of the United States and the regulations of the Treasury Department made in conformity therewith, safely keeping and correctly paying out all sums of public money advanced to him or coming into his hands from time to time * * * then this obligation to be void and of non-effect; otherwise to remain in full force and virtue.”</p> <p>The order for the appointment of West as disbursing agent, which bears date on December 12, 1891, one day after the date of the bond, .is the following terms:</p> <p>■ “ Under the provisions of section 3614, Revised Statutes of the United States, you are hereby appointed a special disbursing agent of this department, without compensation. Before entering upon the discharge of the duties of said office you will execute a bond, with two or more sureties, in the sum of three thousand dollars ($3,000).”</p> <p>Notwithstanding the apparent discrepancy in the dates, it is conceded that the appointment specified in this order was the same appointment that is mentioned in the bond, and that the bond was given in compliance with thé requirement of the order.</p> <p>The section 3614 of the Revised Statutes, under which the appointment was made, provides that, “ Whenever it becomes necessary for the head of any department or office to employ special agents, other than the officers of the army or navy, who may be charged with the disbursement of public moneys, such agents shall, before entering upon duty, give bond in such form and with such security as the head of the department or office employing them may approve.”</p> <p>The occasion for the appointment of West, as special disbursing agent under this provision of the statutes, was that, on December 7, 1891, five days previously thereto, he had been appointed by the same acting Secretary of the Treasury a special agent under the provisions of Section 12 of the act of Congress of April 25, 1890 (26 Stat., p. 62), in reference to the World’s Columbian -Exposition, “ for duty in connection with the admission of foreign goods,” at a specified compensation per day besides his reasonable traveling expenses ; and it was desired that he should be able to receive in advance a sufficient sum of money to pay . himself his stipulated compensation and traveling expenses. He was, therefore, made a special disbursing agent under Section 3614 of the Revised Statutes in order to pay himself as special agent under the act of April 25, 1890. The appointment of special disbursing agent contained in terms no express limitation as to the time for which the agency should last; but the appointment of the special agent under' the act of 1890 was expressly limited to terminate on March 8, 1892.</p> <p>Under his appointement as special disbursing agent, two sums of money, aggregating fifteen hundred dollars, were advanced to West; and for this amount and his disbursements thereof, some time after the termination of his first employment, that is, some time after March 8, 1892, he presented his accounts to the Treasury Department for adjustment. These accounts showed a balance in his hands of $263.56. The accounting officer of the Treasury Department, disallowing some small items, stated the amount of the balance due from him to be $276.78.</p> <p>The account was stated by the First Auditor of the Treasury on April 15, 1892, and on the following day was transmitted by that officer to the Commissioner of Customs, to whom, under section 277 of the Revised Statutes, it was' required to be transmitted “for his decision thereon." The Commissioner of Customs reviewed and approved the statement, as it had been made by the First Auditor, and on April 2i, 1892, certified it to the Register of the Treasury, in accordance with the requirements of section 317 of the Revised Statutes.</p> <p>The duties of West under his appointment of December 7, 1891, seem to have been to advance the interests of the Columbian Exposition in the Republic of Mexico. Having sufficiently exploited that field of operations, as it would appear, he received, under date of March 16, 1892, an appointment to go to Cuba and Jamaica, in the West Indies, in the interest of the Exposition. The order for this appointment purported to be merely an extension of the previous order of December 7, 1891, and was in the following terms: '</p> <p>“ Your appointment as special agent under date of December 7, 1891, pursuant to the provisions of section 12 of the act of April 25, 1890, relating to the World’s Colum-bian Exposition, is- hereby extended to the 30th day of April, 1892. You will proceed to the Spanish colony of •Cuba and to the British colony of Jamaica, for the purpose of distributing information as to the admission into the United States of foreign goods intended for exhibition at the World’s Columbian Exposition to be held in Chicago in 1893.</p> <p>“ In all your proceedings you will be guided by the instructions of this Department, specially communicated to you by the Department’s letter of December 14, 1891, change of field being taken into consideration.”</p> <p>“ On account of changes of climate you will be. allowed one hundred dollars extra in addition to the expenses prescribed by Department regulations.”</p> <p>Thereupon, on the same day (March 16, 1892), he received one thousand dollars from the Treasury for disbursement during this period of extension. And sometime after the termination of that period he rendered his account to the Department, charging himself with the balance of $263.56, which he had admitted in his first account to be due from him, and also with the sum of $1,000 received by him on March 16, 1892, and claiming credit for expenditures amounting to $718.87 (afterwards, corrected to $719.43), thus admitting a balance in his hands of $544.13. The First Auditor, however, charging him with $276.68, instead of $263.56, from his first account, stated the balance due from him to be $557.81. This statement was on October 20, 1892. On the same day it was certified by the First Auditor to the Commissioner of Customs, in whose office a small correction was made, reducing the indebtedness to $557.25. This amount was by the Commissioner certfied to the Register of the Treasury, on November 19, 1892.</p> <p>West did not pay this balance into the Treasury; and the deficiency remaining unsatisfied the present suit was instituted against him and his sureties on June 28, 1893.</p> <p>The declaration set forth the bond and its forfeiture, and stated the precise sum of $557.25 as due from West. It was not supported by affidavit of any kind. The defendants united in a single plea, which was a plea of set-off to the amount of $ 1,998 for services claimed by West to have •been rendered by him, and which it is unnecessary to state here, inasmuch as they were not allowed in the court below. The plaintiffs joined issue upon the pleas of the defendants, although there was but one plea in the case.</p> <p>At the trial, counsel for the.United States assumed the burden of proof, offered the bond in evidence, and then rested. The defendants introduced proof of the two orders of appointment of December 7, 1891, and March 16, 1892, some testimony as to the receipts and disbursements made by West, and also testimony as to the claim of set-off, part of which claim, however, was withdrawn. There they rested.</p> <p>The plaintiffs, in rebuttal, proved the order of December 12, 1891, appointing West as a special disbursing agent, and introduced in evidence the accounts from the Treasury Department.</p> <p>The court thereupon directed the jury to return a verdict in favor of the sureties Thompson and Webb, which was done, the plaintiffs duly excepting. But a verdict was rendered against the principal, West, for the full amount claimed by the United States ($557.25). From the judgment thereon rendered the plaintiffs have appealed to this court.</p>

Hearing on an appeal by the plaintiff from a judgment on ¿ verdict directed by the court in an action to recover damages for the alleged unlawful killing of plaintiff’s intestate. .

HeariNG on an appeal by the defendant from a judgment ' on.verdict in an action to recover damages for personal •injuries. The Court in its opinion stated the case as follows: . The appellee, Heineman Klein, as plaintiff below, recovered a judgment against the appellant, the Anacostia and Potomac River Railroad Company, for $3,000 for injuries received while attempting to enter one of its horse cars.

<p>Hearing of an appeal from the Commissioner of Patents in an interference proceeding.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is an appeal from the decision of the Commissioner of Patents in a case of interference.</p> <p>The issue of invention, which constitutes the subject-matter of interference, is the following:</p> <p>“ The packing for a door, consisting of a rigid strip faced with yielding material, springs at the back of said strip, said strip and springs being located in a recess at the meeting edge of the door or jamb, and a strip of canvas or like flexible material covering over said recess.”</p> <p>With reference to the character and purpose of the invention and the situation of the contestants we copy from the opinion of the Commissioner the following clear, terse, and accurate statement:</p> <p>“ The interference is between an application and a patent. The invention is a spring packing to be used on a door or jamb of a refrigerator car for the purpose of closely packing the joints. Prior to the making of this invention refrigerator car doors were packed with felt or the like material; but owing to the alterations of dampness and dryness, on the one hand, they became so swollen that it was difficult to open them without the use of crowbars or sledges, and frequently the packing would become so Compressed by the swelling of the door as to entirely lose .its elasticity. On the other hand, the doors became so shrunken as to leave cracks in the joints of the doors or jambs, through which would readily pass strong currents of air, to which the cars were subject while in transit. To remedy these defects in the old construction of refrigerator car doors this invention was made.</p> <p>“ At the time the invention was reduced to practice both parties to this interference were employed by the Chicago, Boston and Liverpool Company, at Elsdon, Ill., Chase as superintendent and La Flare as general foreman. This company was engaged, in repairing and reconstructing old refrigerator cars aftd building new ones. Chase came to Elsdon in the employ of the company in March, 1891. La Flare was in employ of the company several years prior to this, first as engineer, then as foreman of the woodshop, and finally as general foreman. Wells and Patch, witnesses for La Flare, are also employees of the company, the former as foreman of the woodshop and the other as repairer. These positions they held at the time the invention was put into practice.”</p> <p>The appellee, Rodney G. Chase, claims to have conceived the invention in June of 1883, to have explained it to others in the same month and year, and to have reduced it to practice in the month of May of 1891 in the shops of the company which employed him,at Elsdon, in the city of Chicago. He applied for a patent on April 30, 1892, and the patent was issued to him on August 2, 1892.</p> <p>The appellant, Myron J. La Flare, claims to have conceived the invention in February, 1890, to have, made a drawing of his invention and explained it to others in September of 1890, and to have reduced it to practice in the months of July and August of 1891 in the same shops in which 'Chase claims to have reduced the invention to practice, the act of reduction referred to by both parties being, in fact, the same act.</p> <p>' Upon the testimony in the case the examiner of interferences adjudged the priority of invention to belong to La Flare, and his decision was affirmed by the board of examiners in chief; but upon appeal to the Commissioner of Patents the decision of the examiner and of the board of examiners in chief was reversed and priority of invention was awarded to Chase. From the decision of the Commissioner La Flare has appealed to this court.</p>

<p>Hearing on an appeal from a decision of the Commissioner of Patents in an interference proceeding.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>i. Where an interference contest is between an application and an issued patent granted before the filing of such application, the applicant cannot prevail unless he shall be able to establish facts of the same kind that are required to defeat an existing patent if set up in defence of a suit for infringement of the patent, namely, that the alleged prior invention preceded the invention of the patentee in the sense that it was embodied in such practical form as to demonstrate its operativeness prior to its reduction to practice s by the patentee. Wheeler v. Chenozvitlt, C. D. 1869, 43 ; Richardson v. Denza, Id. 1870, 156; Dncheviin v. Richardson, Id. 31 ; Sargent v. Burge, Id. 1877, 62 ; Berry v. Stock-well, 9 O. G. 404; Dixony. Moyer, 7 Fed. Cas. 758 ; Loom Co. v. Higgins, 16 O. G. 675 ; Ellithorpe v. Robertson, 4 Blatch. 307 ; Coxe v. Griggs, 1 Biss. 362; Brodie v. Mining Co., S Sawy. 608; Colt v. Anns Co., 1 Fish. P. C. 108; Allen v. Hunter, 6 McLean, 303 ; Octell v. Stout, 29 O. G. 862, and cases cited; Signal Co. v. Signal Co., 6 Fed. R. 603 ; Jones v. Sewell, 3 Cliff. 563 ; Graham v. Piano Co., 33 Fed. R. 917 ; Reiter v. Jones, 35 Fed. R. 421 ; Machine Co. v. Brozan, 36 Red. R. 317 ; Eagle Co. v. Miller, 41 Fed. R. 351 ; Valve Co. v. Valve Co., 52 Fed. R. 314; Glen Co. v. Brooks, 19 Fed. R. 426 ; Johnson v. Root, 2 Fish. P. C. 291.</p> <p>The only exception recognized by law to this rule is that provided for by sec. 4920, R. S. U. S., when the patentee has “ surreptitiously or unjustly obtained his patent” for an invention conceived by another who was using due diligence in adopting and perfecting it, in which case it is provided that it shall be a sufficient defence to a suit under the patent to show that the patentee had surreptitiously or unjustly obtained the patent under such circumstances.</p> <p>The words “surreptitiously or unjustly” imply fraud or false suggestion, and require that a showing of craft or stealth on the part of the patentee be made in order to invalidate a patent.under this provision of the statute. In no case where the defendant has not set up the defence of fraudulent appropriation of ideas, under section 4920, has the defence of prior invention been held sufficiently established except by proof of completion of the alleged prior invention before reduction to practice by the patentee. Needless to say that in this case, where Huson has attempted to show appropriation of the invention by Yates and failed in the effort, the provision of said section 4920 does not apply, and it is necessary to show actual reduction to practice by Huson in order that he may prevail against Yates, the first to reduce to practice. Mfg. Co. v. Renchard, 9 Fed. R. 293 ; Park-hurst v. Kinsman, 1 Blatch. 488 ; Phelps v. Brown, 4 Blatch. 362 ; Cahoon v. Ring, 1 Cliff 592 ; Stephens v. Salisbury, I MacA. 379.</p> <p>2. In any contest between rival inventors, the first to reduce the invention to practice in operative form is entitled to the patent, unless his opponent, being the first to conceive, exercised diligence in the development of the invention from the date of his original conception down to the date of his reduction to practice.</p> <p>3. In a contest between a patentee on the one hand and an applicant on the other, when the applicant was first to conceive and the second to reduce to practice, the applicant cannot prevail unless it shall be made to appear that he was persistently and unremittingly diligent in bringing the invention into form for actual use and in obtaining a patent, and the applicant on whom the burden is thrown of establishing such diligence cannot prevail on a showing that he made no efforts on his own motion toward these ends, but thát he rested supinely and awaited the action of others. Savary v. Lauch,.\. MácA. P. C. 691 ; Ellithorpe v. Robertson, Id. 585; Christie v. Seybold, 55 Fed. R. 69; Wright v. Postel, 44 Fed. R. 352 ; Millward v. Barnes, 11 O. G. 1060; Brookfield v. Brook, 4 O. G. 81.</p>

Hearing on an appeal by the defendant from a judgment on verdict in an action of ejectment.

Hearing on an appeal by the plaintiff from a judgment on a verdict directed by the court in an action to recover damages for personal injuries. The facts are sufficiently stated in the opinion. Speed in violation of positive law, if not negligence per se, at least should be submitted to the jury, as circumstance from which negligence may be inferred. Railroad Co. v. Ives, 144 U. S. 410; Railroad Co. v. Sternberg, 17 Mich. 99 ; Langhoffv.

<p>Hearing on an appeal by the plaintiff from a judgment on a verdict directed by the court in an action to recover damages for the negligent removal of one party wall and construction of another.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by the executrix of a deceased plaintiff in an action at law, from an order vacating a previous order allowing her to prosecute the action in the place of the original plaintiff.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>1. The act of Maryland of 1785, relied on by the appel-lee, does not contemplate the dismissal of an action after some step has been taken to make proper parties, but is intended only as a means of allowing a court to clear its dockets of abandoned cases. Moreover the act points out the method by which a defendant may have a cause dismissed on failure of the plaintiff’s representative to be made a. party, and clearly was not intended to allow a defendant to suggest the death of the plaintiff, without notice to the other side, deliberately wait until the time allowed for making parties has expired, and then to file a motion to dismiss, based on his own ex parte action in suggesting the death.</p> <p>2. The act of 1785 referred to, is obsolete. It applied to the terms of the provincial courts as they then existed, and could not have been intended to apply to any others, least of all to different terms, created by rules passed more than a hundred years after the enactment of the statute, and belonging to a court of different locus and jurisdiction.</p> <p>There is a dearth of authority upon the subject of obso- , lete laws. The general principles applicable to them are, however, laid down in the cases of Wright v. Crane, 13 Serg. & R. (Pa.) 432; Snmudeu v. Snowden, 1 Bland Ch. 555, where several instances of obsolete statutes are referred to.</p> <p>The statute invoked by the appellee has been impliedly repealed by subsequent enactments. Act of Maryland of 1787, 2 Kilty, chap. 9, Nov., 1787 ; sec. 955 R. S. U. S.</p> <p>The rule of the Supreme Court of the District of Columbia, authorizing the dismissal of a case if an executrix is not made a party within one year after the suggestion of the death of her testator does not appear in the new rules of court adopted March 17, 1894, and therefore cannot be invoked to deprive this appellant of the right to a trial of this action upon its merits.</p>

Heaking on a motion by the appellee to dismiss an appeal upon the ground that the transcript of the record was not filed by the appellant in this court within the time prescribed by Rule XIV. The judgment in the court below was entered January 4, 1896 ; the appeal was entered January 14, 1896 ; on January 21, 1896, the appellant deposited $25 in lieu of a bond for costs, and on February 27, 1896, the transcript of the record was filed in this court.

<p>Heaking on an application for the allowance of an appeal.</p>

<p>Hearing on an appeal by the defendant from a judgment under the 73d rule in an action of indebitatus assumpsit.</p> <p>The Court in its opinion stated the case as follows;</p> <p>The declaration in this case contains the common indeb-itatus assumpsit counts, for work done and materials provided, by the plaintiff, Randolph D. Hopkins, for the defendant, The Ohio National Bank of Washington, at its request ; for money lent by the plaintiff to the defendant; for money paid by the plaintiff for the defendant at its request; for money received by the defendant for the use of the plaintiff; and for money found to be due from the defendant to the plaintiff an accounts stated between them. The amount sued for is $1,251.56; and with the declaration was filed an affidavit of the plaintiff, under the 73rd rule of the court below, showing the ground of the claim, and also an account or bill of particulars, whereby the defendant is charged with the receipt, for and on account of the plaintiff, of notarial fees, earned by and due to the plaintiff, as notary public, for protesting, noting for protest, and serving notices of protest, on divers notes, checks, and other commercial paper, from October i, 1892, to Maj' 6, 1895, amounting to the sum of. $2,397.38, with a credit of the sum of $1,145.82, leaving the balance due the sum of $1,251.56', the amount sued, for, and set forth in the affidavit.</p> <p>The defendant denies in toto the indebtedness alleged, and in its affidavit of defence under the rule states “ that, the plaintiff being a notary public, on or about the first of October, 1892, the defendant bank entered into a verbal contract with the plaintiff, whereby it was agreed between them, that, in consideration of the defendant employing the plaintiff to do its notarial work in protesting its notes, checks, drafts, and such commercial paper belonging to said defendant, or that might come to it through its correspondents, in due course of business, requiring demand of payment and protest, he, the said plaintiff, would accept in full payment for his services fifty per centum, or one-half, of the usual and legal fees chargeable therefor, as fast as collected by the defendant, the remaining one-half to be turned over to and retained by defendant as its own ; that pursuant to said agreement the plaintiff received and protested notes, checks, drafts, and other commercial paper belonging to the .defendant requiring demand of payment and protest, and from time to time was paid one-half of all the fees therefor, so earned by him and collected by defendant, and full and final settlements were made between them at the end of each calendar month, down to and including June 30, 1895. That having thus paid the plaintiff the full amount due him from October 1, 1892, to June 30, 1895, under said agreement as herein stated, the defendant is not indebted to the plaintiff in the sum of $1,251.56,33 claimed by him in his declaration, or in any other siim or sums of money whatever, for the reasons herein stated.”</p> <p>Upon the filing of this affidavit, the plaintiff moved the court for judgment under the rule, which provides that, for want of sufficient affidavit of defence, the plaintiff, who files a sufficient affidavit of claim with his declaration, shall be entitled to judgment; and the ground of the motion for judgment in this case was, that the affidavit of defendant disclosed no valid answer or ground of defence to the claim made by the plaintiff. And the court being, of that opinion, entered judgment for the plaintiff accordingly, for the amount claimed in the declaration and affidavit. It is from that judgment that this appeal is taken.</p> <p>1. Want of consideration is of no avail against an executed contract. Awadt v. Bldg. Asso., 34 Md. 435 ; Williams v. Colby, 44 Vt. 46 ; Bank v. Reed, 11 Ohio, 498 ; Bishop on Contracts, sec. 624.</p> <p>2. The contract in question is not void as against public policy. Its object, viz: the proper protesting of commercial paper, was lawful and right, and the means to be employed in carrying out the contract were in strict compliance with good morals; and to these two things the courts look in determining whether a contract is against public policy.</p> <p>Section 16, chapter 11, of the statutes now in force in this District, fixes the maximum fees that may be charged by notaries, leaving them perfectly free to charge a less fee, if they choose, without incurring the penalties fixed by section 17. The fees of a notary are his own private perquisites, and therefore, like any private individual, he may seek employment where he can get it, and upon such terms as may be agreed upon, so long as the fees charged do not exceed the limit fixed by section 16.</p> <p>3. Even if this contract is held to be in violation of the principles of public policy, still it would avail the plaintiff nothing in this action, because in that view he and the appellant are in pari delicto, and hence the court will .leave the parties where it finds them. Bishop on Contracts, sec. 489 ; Megitire v. Corwine, 101 U. S. Rep. 108 ; Marshall v. Railroad Co., 16 How., U. S. 314; Oscanyan v. Arms Co., 103 U. S. 277 ; Tool Co. v. Norris, 2 Wall. U. S. 45 ; A shimmer v. Parrish, 81 Pa. St. 52; Winpenny v. French, 18 Ohio St. 469 ; Trist v. Child, 21 Wall. U. S. 441.</p> <p>1. An executed contract, particularly when based upon a consideration of the character of the one presented in this case, is not contrary to good morals and raises no question of public policy. A notary public receiving from a bank commercial paper consigned to it for collection, is the agent of the holder of the note and not of the bank. Britton v. Niccolls, 104 U. S. 757. The bank was the agent of the persons consigning these collections to it. The duty was imposed upon the bank to employ a proper agent to secure demand of payment, protest and notice of dishonor. For this service, the bank was entitled to compensation, and it might either charge its customer a fee or .make an advantageous arrangement whereby it should be paid for such service and responsibility without expense to its customers. The contract set up therefor is a fair and advantageous one for all the parties, the plaintiff, the bank and the customer.</p> <p>2. A notary public is nota public officer, such as a judge, sheriff, justice of the peace, or .clerk of a court. He has no judicial function as far as commercial paper is concerned, and he is a purely ministerial officer. United States v. Bixby, 9 Fed. R. 78.</p> <p>By virtue of the statute fixing the fees of a notary public in this District the public are only concerned in the acts of such officer as to fees, to the extent that there shall be no extortion by the officer. A fine is prescribed against a notary public who shall take a higher fee than is allowed by law, but there is no penalty or provision that the. notary may not take a less fee or may not, in his discretion, refuse to exact any fees whatever.</p> <p>3. Fees of a public officer already earned are the subject of assignment and contract. Thurston v. Fairman, 9 Hun, 584 ; Birbeck v. Stafford, 23 How. Pr. 236 ; Stephenson v. Walden, 24 Iowa, 84; Platt v. Stout, 14 Abb. Pr. 178; Mott v. Robbins, 1 Hill, 21 ; Gulliford v. De Cardonell, 2 Salk. 466; Baldwin v. Burgess, 2 J. J. Marsh. 7.</p> <p>Where the object is protection to the public or Government, this does not prohibit the parties from making a contract between themselves. Thus, by section 3477 R. S. U.’ S.,the assignment of claims against the Government is prohibited, yet this statute is held to have been intended to protect the Government and not to dictate to the contractor what he should do with the money received on the contract after it hád been performed. Hobbs v. McLean, 117 U. S. 567.</p> <p>4. Where there is an existing employment by which compensation is being earned, and which may in the future be expected to be earned, an assignment of such compensation is valid. Metcalf v. Kincaid, 54 N. W. Rep. 67 ; Johnson v. Pace, 78 Ill. 143.</p> <p>5. If this contract is held to be void as against public policy, it is a matter of defence which can be used to defeat plaintiff’s claim, because he is equally in fault with the defendant. No one can use a void, contract as a means of getting better terms than he could have claimed -under it. Mechem on Public Officers, sec. 883.</p> <p>1. • The contract set up as matter of defence is wholly without consideration and void. The choice of a particular officer to perform notarial duties for its customers was a right of selection, but surely not a subject of barter and sale, Smith on Contracts (7th edition), 184, 170; Green-hood on Public Policy, sec. 339; Folck v, Smith, 13 Md. 85 ; Bank v. Fink, 86 Tex. 303.</p> <p>2. A notary public is a public officer. United States v. Hartzvell, 6 Wall. 385 ; Britton v. Niccolls, J04U. S. 766.</p> <p>3. The contract set up by the appellant is opposed to the statute regulating the fees of a notary, the languauge of which is : “ The fees of notaries public shall be,” etc. This means that they shall be neither more nor less. Its terms are mandatory, and a contract in disobedience illegal.</p> <p>In a case of this sort, although the contract is illegal, the courts hold that one belonging to the class intended to be protected will not be considered in pari delicto. Smith on Contracts, 7 ed., 299; Osborne v. Williams, 18 Vesey, Jr., 379; Pinckston v. Bro-wn, 3 Jones Eq. 494, and Bank v. Fink, 86 Texas, 303.</p> <p>4. Should it be held that the contract does not contravene the terms of the statute, yet it is- contrary to pnblic policy and void ; a public officer cannot assign or give a lien upon his unearned compensation which is given by law whether such compensation be salary or fees. Bank v. Fink, 86 Texas, 303, and cases cited; Meguire v. Convine, 101 U. S. 108 ; Mechen on Public Officers, sec. 874.</p> <p>5. The true test for determining whether or not the plaintiff and defendant were in pari delicto is by considering whether the plaintiff could make out his case otherwise than through the medium and by the aid of the illegal transaction to which he himself was a party. Taylor'v. Chester, 4 Q. B. 310; Simpson v. Bloss, 7 Taunton, 246.</p>

<p>Heaking on an appeal by the plaintiffs-from a judgment on verdict in an action of ejectment.</p>

Hearing on an appeal from a decree in a suit in equity to determine the question of priority as between an as-signee of a judgment and an attaching creditor. The facts are sufficiently stated in the opinion. 1. A judgment dates, not from the time the verdict is received and approved in open court, but from the time of the actual entry of the judgment. The entry of judgment in this case on the day the verdict was received was erroneous.

Hearing on an appe'al by the plaintiff (leave to prosecute the same having been previously granted), in a suit before a justice of the peace, from an order of the Supreme Court of the District of Columbia overruling a motion to quash-a writ of certiorari to the justice.

<p>Hearing on an appeal by the Rock Creek Park Commissioners from a decree enjoining them from levying a special assessment on certain lands, under the act of Congress of February 7, 1890.</p> <p>Mr. Chief Justice Alvey dissenting.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is an appeal from a decree in equity of the Supreme Court of the District of Columbia awarding an injunction against the Rock Creek Park Commissioners to restrain them from levying an assessment on certain lands of the appellees adjoining the park for supposed benefits accruing to the lands from the location of the park.</p> <p>By an act approved February 27, 1890 (26 Stat. 492), Congress provided for the acquisition by the United States of a certain tract or tracts of land, within certain specified limits, extending along both sides of Rock Creek, in the District of Columbia, to be “ perpetually dedicated and set apart as a public park or pleasure ground for the benefit and enjoyment of the people of the United States, to be known by the name of Rock Creek Park,” with the proviso that the whole tract to be acquired should not exceed 2,000 acres, nor the total cost thereof the sum of $ i ,200,000, which sum was appropriated by the act to be used in payment for the land and for the incidental expenses of its acquisition.</p> <p>Provision was made in the act for the appointment of the Engineer-in-chief of the Army, the Engineer Commissioner of the District of Columbia, and three citizens to be appointed by the President of the United States, as a commission to locate the park; to prepare an accurate map thereof, which should show the location, quantity, and character of each parcel of private property that might be required, with the names of the respective owners inscribed thereon ; to cause such map to be recorded among the public records of the District of Columbia; and thereafter to conduct the proceedings for the acquisition of the land, which was to be secured either by purchase or by condemnation. it was provided farther that, upon .the recording of the map, the several tracts of land therein embraced should “ be held as condemned for public uses, and the title thereof vested in the United States, subject to the payment of just compensation, to be determined by said commission and approved by the President of the United Statesand also that, if the commission should be unable to reach an agreement with the respective owners, “ to purchase all of the land so selected within thirty days after such condemnation at the price approved by the President of the United States,” it should, at the expiration of that period, ” make application to the Supreme Court of the District of Columbia by petition, at a special or general term, for an assessment of the value of such land as it has been unable to purchase,” with a description thereof, specification of the owners, &c. It was made the duty of the court, upon the filing of such petition, to appoint three commissioners to appraise the value of the land therein mentioned, and upon such appraisement to determine the value; also to direct the time and manner in which possession of the condemned property should be taken. And provision was made that, when the President of the United States, who was also authorized to intervene in the matter, should decide the valuation to be reasonable, payment should thereupon be made to the owners, and the United States should be deemed to have a valid title to the land. In the event of the refusal of the owner to take the amount of the valuation, or in the event of difficulty in regard to the title, the money was to be paid into court. Upon the payment of the money or the deposit thereof in the contingencies mentioned, possession was to be taken for the United States. One-half of the cost and expenses was to be reimbursed to the United States,out of the revenues of the District of Columbia.</p> <p>It was then provided by section 6 of the act, which is the part of the statute that has given rise to the present controversy, that the commission should proceed to make an assessment for special benefits on such property iñ the District of Columbia as would be benefited by the location and improvement of the park ; and the mode was prescribed by which the assessment was to be made and enforced. This section, with the omission of such parts as are unnecessary to the present controversy, is as follows:</p> <p>Sec. 6. That the commission having ascertained the cost of the land, including expenses, shall assess such proportion of such cost and expenses upon the lands, lots, and blocks situated in the District of Columbia specially benefited by reason of the location, and improvement of saic} park, as nearly as may be, in proportion to the benefits resulting to such real estate.</p> <p>“ If said commission shall find that the real estate in said District directly benefited by reason of the location of the park is not benefited to'the full extent of the estimated cost and expenses, then they shall assess each tract or parcel of land specially benefited to the ■ extent of such, benefits- as they shall deem the said real estate specially benefited. * * * When the assessment shall be completed, it shall be * * * filed in the office of the clerk of the Supreme Court of the District of Columbia. The commission shall apply to. the court for a confirmation of said assessment, giving at least ten days’ notice of the time thereof by publication in one daily newspaper published in the city of Washington, which notice shall state in general terms the subject and the object of the application.</p> <p>“ The said court shall have power, after said notice shall have been duly given, to hear and determine all matters connected with said assessment; and may revise, correct, amend, and confirm said assessment, in whole or in part, or order a new assessment in whole or in part, with or without further notice, or on such notice as it shall prescribe ; but no order for a new assessment in part, or any partial adverse action, shall hinder or delay confirmation of the residue, or collection of the assessment therefrom. Confirmation of any part of the assessment shall make the same a lien on the real estate assessed.</p> <p>“ The assessment when confirmed, shall be divided into four equal installments, and may be paid by any party interested in full or in one, two, three, and four years, on or before which times all shall be payable, with six per centum annual interest on all deferred payments. All payments shall be made to the Treasurer of the United States, who shall keep the account as a separate fund. The orders of the court shall be conclusive evidence of all previous proceedings necessary to the validity thereof, and of all matters recited in said orders. The clerk of said court shall keep a record of all proceedings in regard to said assessment and confirmation. * * * In case assessments are not paid as aforesaid, the book of assessments certified by the clerk of the court shall be delivered to the officer charged by law' with the duty of collecting delinquent taxes in the District of Columbia, who shall proceed to collect the same as delinquent real estate taxes are-collected.</p> <p>■ “ All money so collected may be paid by the Treasurer on the order of the commission to any persons entitled thereto as compensation for land or services. Such order on the Treasurer shall be signed by a majority of the commission and shall specify fully the purpose for which it is drawn. If the proceeds of assessment exceed the cost of the park, the excess shall be used in its improvement, under the direction of the officers named in section 8, if such excess shall not exceed the amount of $io,ooo. If it shall exceed that amount that part above $10,000 shall be refunded ratably. Public officers performing any duty hereunder shall be allowed such fees and compensation as they would be entitled to in like cases of collecting taxes. The civilian members of the commission shall be allowed ten dollars each per day for each day of actual service. Deeds made to purchasers at sales for delinquent assessments hereunder shall be prima facie evidence of the right of the purchaser, and any one claiming under him, that the real estate was subject to assessment and directly benefited, and that the assessment was regularly made; that the assessment was not paid; that due advertisement had been made; that the grantee in the deed was the purchaser or assignee of the purchaser, and that the sale was conducted legally.</p> <p>“ Any judgment for the sale of any real estate for unpaid assessments shall be conclusive evidence of its regularity and validity in all collateral proceedings, except when the assessment was actually paid ; and the judgment shall estop all persons from raising any objection thereto, or to any sale or deed based thereon, which existed at the date of its rendition, and could have been presented as a defence to the application for such judgment.”</p> <p>In pursuance of this act the Park Commission was duly appointed and entered upon the performance of its duties. It selected the land, and filed and recorded a map of it. Some of the tracts comprised in the map were acquired by purchase in pursuance of agreement with the owners ; and for the acquisition of the other tracts, in reference to which agreement could not be had, a petition was filed in the Supreme Court of the District in accordance with the requirements of the act for an appraisement of their value and their condemnation to the use of the United States.</p> <p>Appraisers were appointed by the court. Upon the return of their report, it was found that the appropriation was not sufficient to pay for all the land selected, and some of the tracts were excluded, therein comprising two parcels, designated on the map as 13 and 16, belonging to the ap-pellees in this cause. The money for the tracts that were taken was paid into court.</p> <p>The proceedings in court for the acquisition of the lands not purchased by agreement were contested by some of the owners upon various grounds ; and the proceedings were finally carried to the Supreme Court of the United States upon writ of error.</p> <p>There the decision of the Supreme Court of the District of Columbia upon the petition filed by the Park Commissioners was affirmed. Shoemaker v. United States, 147 U. S. 282. Thereafter the fund in court was paid out to the respective owners upon reports of a special auditor; the lands became the property of the Uuited States ; and the park was finally established and turned over to the control of the officers named in the seventh section of the act to take charge of it, namely, the Chief of Engineers of the United States Army and the Commissioners of the District of Columbia.</p> <p>Apparently, however, the duties of the Park Commissioners were not yet at an end. They were required by section 6 of the act to make an assessment for special benefits accruing by reason of the establishment of the park ; and this they now proceeded to perform. They gave public notice of their intention to assess under this section; and announced that, on a day designated, they would first hear testimony as to the extent of surrounding land affected beneficially by the location and improvement of the park. The appellees and others, who were owners of adjoining lands, appeared and entered a protest against any proceeding by the commission to make any such assessment as they had proposed to make, on the ground that the land had already been taken and paid for, and no assessment was required for any further payment; that the only purpose of assessment, as specified, was to pay for the land and expenses, all of which already had been defrayed; that the powers and duties of the commission were at an end; that no special benefits had accrued to any of the lands in question, inasmuch as there had been no improvement whatever of the proposed park, and no change whatever from the previous conditions; that the section of the act in regard to assessment was conflicting, meaningless, and'unintelligible, and therefore incapable of enforcement; and that the principle of assessment for supposed benefits in such cases was erroneous and radically vicious.</p> <p>The commission thereupon was adjourned for a time, it was understood, in order to take the opinion of the Attorney-General of the United States on the question raised. This opinion the Attorney-General declined to give; and it was supposed that the commission would then proceed with the work of assessment,</p> <p>At this juncture the appellees commenced - the present proceedings by filing their bill in equity in the Supreme Court of the District of Columbia to restrain the commis-. sioncrs, by injunction, from further action in the way of levying an assessment on the property of the complainants ; and the. claim was set up that section 6 of the act was repugnant to the Constitution of the United States, and therefore void.</p> <p>To this bill a demurrer was filed by the United States District Attorney as solicitor for the Park Commissioners ; and the demurrer was sustained on the ground that the application for injunction was premature. The cause was retained, however, with leave to the complainants to renew their application by supplemental bill or otherwise at a later stage of the proceedings of the Park Commissioners.</p> <p>The Park Commissioners continued to hold their sessions; and on February 21, 1895, formally announced that they deemed certain property lying within a quarter of a mile from the limits of the park to have been specially benefited by reason of the location of the park. They decided that, saving some exceptional cases, which the commission was not then ready to consider, there had been no special benefit accruing by reason of the location and improvement of the park to any land within the District of Columbia situated more than a quarter of a mile in any direction beyond the nearest park limits ; but that the testimony thus far taken had established the fact, in their opinion, that certain properties within a quarter of a mile from the park and abutting upon it had been specially benefited. The only tract, however, that was specially designated by the commissioners as so benefited was tract No. 16, hereinbefore mentioned, the property of the appellees, which was held by them to have “ been benefited by the location of the park, not only because of its proximity thereto, but because of its overlook of the park.” No special sum of money was named as the amount of the supposed benefit, and there was no formal assessment of value, at least at that time. The designation was made in order to give the ap-pellees a standing in court in the suit instituted by them, it being the avowed desire of the commissioners to have their powers and duties in the premises authoritatively defined for them by the court, as well as the rights of the complainants in the suit and other adjoining owners fully determined.</p> <p>The appellees thereupon filed a supplemental bill, in which these further proceedings by the Park Commissioners were set forth, and the application for an injunction against the commissioners was renewed. The bill and supplemental bill were then in part answered and in part demurred to by the commissioners. The answer, with some unimportant modifications, substantially admitted the allegations of the bill and the supplemental bill; the demurrer was to the construction of the statute contended for by the complainants and to the relief sought by them. The cause was set down for final hearing on the bill, supplemental bill, answer, and demurrer. And the court, by Mr. Justice Cox, after having granted a temporary injunction pendente lite, finally awarded a permanent injunction perpetually enjoining and restraining the Park Commissioners from assessing the land of the complainants for the purposes specified by them or for any purpose whatsoever, and rendered a decree to that effect.</p> <p>From this decree the commissioners have prosecuted the present appeal to this court.</p> <p>[The opinion of Mr. Justice Cox, in the court below, to which reference is made in the opinion of this court, is as follows (the introductory paragraphs thereof being omitted):</p> <p>The authority of the commission to levy benefit assessments is derived from the sixth section of the act of Congress aforesaid, which contains two clauses, the differences between which are to be noted. The first clause is :</p> <p>" That the commission, having ascertained the cost of-the land, including expenses, shall assess such proportion of such cost and expenses upon the lands, lots, and blocks situated in the District of Columbia especially benefited by reason of the location and improvement of said park, as nearly as may be, in proportion to the benefits resulting to such real estate.”</p> <p>The second clause is:</p> <p>“ If said commission shall find that the real estate in said District directly benefited by reason of the location of the park is not benefited to the full extent'of the estimated cost and expenses, then they shall assess each tract or parcel of land specially benefited to the extent of such benefits as they shall deem the said real estate specially benefited.”</p> <p>It will be observed that the second clause provides for the contingency that the real estate in the District of Columbia is not benefited to the full extent of the estimated cost and expenses, and it might hence be inferred that the first clause was intended to provide for the contingency that the benefits did extend to the whole amount of the cost and expenses, and that the first clause intended to direct the whole of that' cost to be assessed upon the several tracts, lots, or blocks of land situated in the District of Columbia in proportion to the benefits resulting to them respectively.</p> <p>But the language of the first clause is absolute and unconditional. “The commission shall assess” is the language. The question is, What shall they assess ? Can it mean' that they shall assess the whole cost, apportioning it among the several tracts with reference to their relative benefits and without reference to their actual benefits ? If so, it would, in the first place, be plainly unconstitutional, because it would make the several tracts pay for benefits they never received; and, in the next place, it would be in conflict with the second clause, which limits the assessments to the extent of the actual special benefit. Can the first clause mean that there shall, be assessed upon the several tracts just such proportion or portion of the entire cost as the actual pecuniary benefit to them will amount to ? If so, what was the use of the second clause, for that is just what that was intended to express. But even here, again, there would be a contradiction between the first and second clauses, for the one directs the assessment to be made with reference to the location and improvement of the park, and the other with reference to the location only. We must assume that Congress did not intend to- direct the same thing to be assessed by two different clauses, and still less to direct it to be done in two different ways.</p> <p>Bearing this in mind, when we examine the first clause we find that it has an uncompleted direction making it entirely meaningless. It directs, not that the whole cost shall be assessed, but that “such proportion' of cost and expenses shall be assessed. What that proportion is, is not stated. Instead of saying “such proportion as may be determined by the commission,” or as may be detei - mined by one or other of certain considerations, the sentence is left incomplete, and directs simply the assessment of “ such proportion” without in any other way defining the proportion. If the court were asked to direct the commissioners by mandamus to discharge the duty devolved upon them by this clause, what direction could the court give ? What proportion could it direct the commissioners to assess upon the property ? It seems evident that the clause is too uncertain to be executed, either voluntar- . ily by the commission or under compulsion from the court, and they must be held to derive no authority to act under that clause.</p> <p>There is a further difference to be noted between the'two clauses. The assessment under the first clause was to be made with reference to the benefits resulting from both the locatioti and improvement. In the second clause each tract is to be assessed to the extent of the benefits derived only from the location of the park. At the present time it is quite plain that no benefits are derived from the location, because the adjacent owners of property have nothing which they had not before. For this reason it appears that the commission have declared their intention of assessing with reference to both location and improvement. Their whole authority is derived under this second clause, and that does not authorize them to assess with reference to both location and improvement, and so far their proposed assessment is therefore without authority of law.</p> <p>But if it could be held to authorize such proposed assessment, the standard by which they are to be guided is so uncertain as to make, the execution of the law as impossible under this as under the former clause. When a street is by municipal ordinance directed , to be opened, graded, paved, or otherwise improved, we all know exactly what is to be done and what the effect will be upon adjacent property ; but there is no law providing for the improvement of the park. No system of improvement has been adopted; no money has been appropriated for the purpose of making improvements, and no one knows that any ever will be appropriated. The only standard which the commissioners would have for estimating benefits with reference to improvements would be found in their imagination as to what may be done at some indefinite time in the future. It is impossible that a just appraisement of benefits could be made on that basis. Here, also, if the court were to attempt to enforce the duty charged upon the commissioners, it would find it equally impossible with such procceeding under the first clause, as already suggested.</p> <p>I think, therefore, that the assessment proposed to be made by the commissioners is not authorized by the statute, and as it would create a charge upon the record on the property of the' complainants it ought to be enjoined, the question as to the jurisdiction of the court in that respect having been waived in the argument for the purpose of bringing before the court the naked question of the authority of the commissioners.</p> <p>Again, it seems to me that the assessment of values and the assessment of benefits were intended to be parts of one and the same transaction; that the assessment of benefits was to immediately follow the ascertainment of the cost of the land and the expenses. The language of the second clause is, not that after the land shall have been paid for the assessment shall take place, but that the commissioners, having ascertained the cost, shall assess, etc. In the second clause they are ..to ascertain whether the property, is or is not benefited, and, if so, whether it is benefited to the extent of the estimated cost and expenses. This language shows that the assessment of benefits was to take place immediately after the ascertainment of the cost or the estimated cost, and was not to be postponed until after payment for the land.</p> <p>Another evidence of that is found in a later clause, which directs that the money collected under these assessments shall be paid to any persons entitled thereto as compensation for land or services. Here follow certain incongruities in the law. The assessment, it is said, shall be divided into four equal instalments and may be paid by any party interested, in full, or in one, two, three, and four years, with six per cent, interest. All payments are to be made to the Treasurer of the United States, who shall keep the account as a separate fund. In case the assessments are not paid, they were to be collected by the collector of the District in the same manner as delinquent taxes due to the District- of Columbia, and although the assessments and the taxes might thus be postponed, the proceeds were directed to be paid for the land or services, whereas it is plain to any one’s common sense that the holders of the land could not be postponed until such collection in the payment for their lands, but were entitled to be paid in cash.</p> <p>But it is also provided that any party so interested might pay in full, and in such case it is obvious that the money so received was primarily applicable to the payment for the land. The ’appropriation from the Treasury of the United States is of $1,200,000, or so much thereof as may be necessary, and this appropriation is made “ out of any money in the Treasury not otherwise appropriated.” The act then appropriates two distinct funds to the payment for these lands — first, what should be collected from assessments, and, next, from the general unappropriated money in the Treasury. These two features of the law can only be reconciled by assuming that the proceeds of the assessments, so far as they would go, were to be applied first, and only so much as it might be necessary, in addition thereto, out of the general funds in the Treasury.</p> <p>All this strongly implies that the assessments should be made immediately after the valuation, in order to ascertain how much should be paid from the Treasury at large, the assessments being directed to be kept by the Treasurer as a separate fund to be applied to this object. It was therefore evidently not intended that the money should first be paid out of the Treasury of the United States and then after-wards they should. make the assessments. • Particularly cannot that be the case under existing circumstances. The law requires that the District of Columbia should reimburse the Treasury of the United States one-half of the amount paid out of the Treasury in four equal annual instalments. That reimbursement, so far as the time which has since elapsed has allowed, it is understood, has been made by the District. If the assessment for benefits can be made now, it is the duty of the party assessed to pay the whole amount into the Treasury of the United States, and the effect will be that as to one-half of the amount .the Government will be paid twice — that is, it has already received payment from the District of Columbia, and would receive payment again from the parties assessed. The commission has no authority to apportion this assessment between the District and the Government.</p> <p>It may be that Congress by additional legislation might, . if there were no constitutional objection, still direct these assessments to be made and apportioned between the United States and the District of Columbia, but under the existing law it could not be made at this late date without involving the parties assessed in this obligation to pay to the United States what they ha.ve already received.</p> <p>The commissioners, I understand, drew orders upon the Treasury in favor of the parties entitled to compensation for their lands, and they were paid by the Treasury on those orders as vouchers. The law really only authorized the commissioners to draw upon the money collected from assessments. Perhaps by fair implication they were authorized also to draw so much as the assessment failed to satisfy of the demands of the land owners, but the effect of their drawing upon the Treasury for the whole amount due for the land was a virtual ascertainment by them that there were no benefits to be assessed, because they had no authority otherwise to draw upon the Treasury for the whole compensation due to the owners;</p> <p>In addition to these considerations, I have considerable doubt whether this law is strictly constitutional. I do not mean to say that it is in conflict with any direct prohibition of the Constitution, but that it is probably foreign to the spirit of that instrument. There are instances in which the fundamental principles of our Government are offended by legislation where no express prohibition is found. For example, the Supreme Court has held that a State has no right to take private property for the use 'of other private persons instead of for public use. The same would doubtless be held to be contrary to the Constitution of the United States if attempted under congressional legislation.</p> <p>When a street is opened under a municipal authority it is often done for the express purpose of benefiting the property through which it is opened as well as the public, and the benefits to the property abutting upon it are so manifest that no one’ denies the right to assess the abutting property owners for those special benefits. They acquire an easement in the new street over and above that which the public has. They have a right to build and sell with reference to it, and it can never be afterwards closed up as against them, while it may be as against the public. The same may be said of a park in the city. The owners fronting upon it immediately acquire the benefit of light, air, prospect, and, in a certain sense, privacy also, in the shape of immunity from the prying eyes of opposite neighbors, of which privileges they cannot be deprived.</p> <p>But here is a park established in the country, not at the instance or request of adjacent proprietors, not for their benefit, but declared to be a public park, a pleasure ground for the benefit and enjoyment of the people of the United States, and in which the adjacent owners acquire no easement different from that of the public. Where a great improvement is made for the benefit of the public, it does sometimes happen that a fractional part of that public are so far benefited that it is proper to apportion a larger part of the burden to them, as, for example, where a courthouse is located in a country town. While the expense is chargeable to the county at large, it has sometimes been properly held that an exceptional proportion of it might be charged upon the town. So in the case of the County of Mobile v. Kimball, 102 U. S. 691, it was held that the cost of improving the harbor of Mobile, while chargeable to the whole county, might be specially charged against the city of Mobile ; and in this same sense the District of Columbia is charged with one-half of this improvement, though it is declared to be for the use of the people of the United States ; but in this case it is only the smaller part of the entire public benefited who are supposed to be exceptionally benefited and who are expected to bear the larger proportion of the burden of the entire public.</p> <p>But when it conies to assessing individuals for public improvements, the question seems to be different. Suppose, for example, a court-house or a public monument or post-office should be erected in a town and the private property of individuals adjacent to it should be specially taxed for the supposed greater convenience which they enjoy of access to the court-house or postoffice, or the privilege of gazing upon the public monument, it would at once be seen that great injustice had been done. It does seem to me that this would be a system of taxation which would not conform to the spirit of our Constitution. It might as well have been held proper to assess the buildings opposite to this court-house for the pleasure of gazing upon the Lincoln monument, if that monument had been erected by public authority.</p> <p>There are several cases, the opinions of which embody my 'ideas >on this subject, to which I will refer without specially quoting from them. 54 Mo. 457; 65 Pa. St. 146; 69 Pa. :St. 352 ; 102 U. S. 691.</p> <p>Upon these grounds I think the injunction should be .granted. — (Reporter.]</p> <p>The case would seem to present but two questions, the first involving the power of Congress to impose taxes upon land in the District of Columbia, by way of assessment for special benefits accruing to such land by reason of the expenditure of public funds-for works of public utility; and if such power exists, secondly, whether the act of September 27, 1890, providing for the acquisition of land for the park, and the levy of assessments upon other lands, specially benefited by its establishment, is a valid exercise of the power.</p> <p>1. As to the power of Congress to impose such taxes. For a discussion of the principles underlying this mode of taxation, see Cooley on Taxation, 416 et seq.; Id. 114 et seq., citing Kirby v. Shaw, 19 Pa. St. 258 ; Thompson Lela?id, 24 Wend. 56; Merrick v. Amherst, 12 Allen, 504; Mobile County v. Kimball, 102 U. S. 691.</p> <p>That land acquired for public parks comes within the rule is conclusively settled. Shoemaker v. United States, 147 U. S. 297.</p> <p>There is nothing in the peculiar relation which the District of Columbia bears to the general government to impair in any manner the power of Congress, in the exercise of its legislative functions over the District, to act upon the principles above enunciated.</p> <p>The power has been frequently exercised by Congress and sustained by decisions of the Supreme Court. Mattingly v. District of Columbia, 97 U. S. 687, in which the validity of an assessment made by the Board of Public Works was under consideration; see also Willard v. Presbrey, 14 Wall. 67 6; Gibbons v. District of Columbia, 116 U. S, 404; Shoemaker v. United States, supra. This last case is of especial importance in this connection. \</p> <p>There does not seem to be any valid reason why Congress might not, if it saw fit, provide for the acquisition of lands for a park in the District, and for the payment of the whole of the cost out of the national treasury; or, on the other hand, for the payment of the whole cost out of the revenues of the District, or for the payment of the cost partly from such revenues and partly through an assessment for special benefits; and if this be so, there can be no legal objection to its providing for such payment from all these sources, and in such proportions as it may deem proper.</p> <p>2. As to the act being a valid exercise of the power.</p> <p>Whether the act is a valid exercise of the power is a matter of construction only; we submit that it is sufficiently explicit to manifest the intention of Congress, notwithstanding that it contains some “inapt words”'and “incongruous matter.” The act clearly provides, primarily, for the acquisition of lands for the park, and makes available the sum of $ x ,200,000 for the purpose of paying “the expenses of inquiry, survey, assessment, costs of lands taken, and all other expenses incidental thereto.” The right of eminent domain and taxation are separate powers. Getty v. Brooklyn, 99 N. Y. 306. It was, therefore, not only proper, but necessary that the owners of the land taken should be paid without unreasonable delay; and the act nowhere prohibits the payment out of the appropriation, or expressly postpones such payment until funds had been realized from assessments.</p> <p>It is also clear from section 6 of the act that Congress intended there should be an assessment upon lands specially benefited; and such construction should be given to that section, if possible, as will support that intention. Bernier v. Bernier, 147 U. S. 242"; Lau Ow Bew v. US., 144 U. S. 59; Lentv. Till son, 72 Cal. 421 ; S. C. 140 U. S. 329; Chapman v. State, 16 Tex. App. 78.</p> <p>The court below held the first clause of section 6 to be too uncertain to -be executed, and that it was in fact meaningless. Assuming this criticism to be just as applied to the clause standing alone, it is apparent from the second clause that Congress believed the first clause conveyed the idea of a preliminary assessment by the commission upon lands specially benefited, which might be sufficient to cover the entire cost. That the words “ such proportion of,” in the first clause, should be construed to mean “ proportionately,” would seem to be clear when the first and second clauses are read together. Such construction is reasonable and would make the two clauses consistent and intelligible; the propriety of its application is amply sustained by the authorities above cited. By the second clause the commission is directed, in case they shall find that the real estate in the District is not specially benefited to the full extent of the cost of the park, to assess the land benefited to the extent of such benefits only.</p> <p>The postponement of the making of assessments until after the land taken had been paid for, was proper. Until the constitutional requirement that just compensation should be made had been complied with, the location of the park could not become a finality, and until it had become so no right could arise to assess for benefits.</p> <p>Section 6 contains a provision directing the commission to apply to the court for a confirmation of the assessment and to give notice of such application ; and the court is invested in terms with the power “ to hear and determine all matters connected with said assessment,” and “ to revise,’ correct, amend, and confirm said assessment in whole or in part, or order a new assessment in whole or in párt.” This satisfies the requirement of “ due process of law.” Davidson v. New Orleans, 96 U. S. 97; Kentucky Railroad Tax Cases, 115 U. S. 331-2; Spencer v. Merchant, 125 U. S. . 354-5 ; Lent v. Tillson, 140 U. S. 327-8.</p> <p>The residue of section 6 relates mainly to the method of enforcing the tax, and other incidental matters which are wholly within the legislative control. Getty v. Brooklyn, 99 N. Y. 366 ; Cooley on Taxation, p. 513.</p> <p>1. The measure or proportion of the proposed assessment, no less than the standard by which it is to be made. are hopelessly indeterminate and incapable of intelligent ascertainment.</p> <p>2. In order to conform to constitutional requirement, the assessment must have been based upon estimates of cost and expenses made concurrently with the acquisition of the land and in payment of the just compensation therefor.</p> <p>3. The mandate being to assess for the cost and expenses of location and improvement of the park, it becomes incapable of execution in presence of the admitted fact that no improvement whatever has, in fact, been made.</p> <p>4. In the absence of any just criterion for determining the proportion of cost and expense for which the land specially benefited shall be assessed, and of the definite standard by which such assessment shall be made, no such assessment can be legally imposed by the appellants, either voluntarily or under the compulsion of judicial process.</p> <p>5. Without resorting to this assessment, the land composing the Rock Creek Park has been, already, fully paid for out of the general appropriation made for that purpose by the act, the one-half of which general appropriation is now being repaid to the United States by general taxation of real estate within the District of Columbia, so that the purpose of such assessment has been anticipated and the occasion for making it no longer exists, and the making thereof, at this time, would result in the possible payment to the United States of $600,000 over and above the amount actually expended by them in the acquisition of a public park to which neither the District of Columbia nor its citizens have any scintilla of title.</p> <p>6. The. sixth section of the act is obnoxious to the grave constitutional objection that it imposes upon a restricted area of abutting real estate and a comparatively few individuals the burden of the cost and expense of acquiring land for a public park, perpetually dedicated to the use and enjoyment of the people of the United States, wherein the citizen sought to be assessed enjoys no exceptional easement, which he has never solicited, and to which he can acquire no title.</p> <p>7. Local assessments can only be constitutional when imposed to pay for local improvements, clearly conferring special benefits on the properties assessed, and to the extent of those benefits, and they cannot be so imposed when the improvement is either expressed or appears to be for general public benefit.</p>

Hearing on an appeal by the complainant from a decree dismissing a bill to set aside a deed of trust sale and enforce an alleged trust in regard to certain real estate. The Court in its opinion stated the case as follows : This is an appeal from a decree of the Supreme Court of the District of Columbia, dismissing a bill of complaint in equity filed for the purpose of enforcing an-alleged trust in regard to real estate.

Hearing on an appeal by the plaintiff from an order vacating a writ of fi.fa. on a judgment. The Court in its opinion stated the case as follows : . This is an appeal from an order passed by the Supreme Court of the District of Columbia, quashing a- writ oí fieri facias issued upon a judgment.

Hearing on an appeal by two of several defendants from a decree in a proceeding to enforce mechanics’ lien. The facts are sufficiently stated in the opinion.

<p>Hearing on an appeal by the United States from a judgment overruling a demurrer to a plea to a declaration in a suit on a mail contractor’s bond.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is an appeal from a judgment against the United States in a suit on a mail contractor’s bond.</p> <p>The declaration, which was filed June 24, 1895, alleged the execution by James B. Colegrove, as principal, and his co-defendants, as sureties, of a bond in the sum of $300 to secure the faithful performance of a contract by said Cole-grove for carrying the mail, from July r, 1893, to June 30, 1897, on a postal route between Glen Hope and Irvona, in the State of ■ Pennsylvania, at the rate of $96 per annum, payable quarterly. The breach of the contract alleged is the failure of the contractor to carry the mail on said route since July 1, 1894.</p> <p>The defendants .filed a plea, in which, after admitting the execution of the bond, and the payment by the United States of the quarterly payments due to and including December 31, 1893, they say: “ But the defendants say that the amount of $24, which became payable upon said contract for each of the two quarters ending respectively March 31, 1894, and June 30, 1894,. aggregating $48, was withheld from said defendant Colegrove by order of the Postmaster-General, in accordance with the construction uniformly given to the act of Congress of May 4, 1882, since the passage of said act, relating to claims against mail contractors or subcontractors by carriers for carrying the mails, and was paid to subcontractors and carriers who had filed their contracts and claims in the Postoffice Department for carrying the mails for said defendant Colegrove upon.divers and sundry other mail routes in the State of Pennsylvania, not mentioned in the bond in the declaration, set forth, on which said Colegrove was and is contractor, and who had furnished evidence of the performance of service in the quarter ending December 31, 1893, and prior thereto, for which service said defendant Colegrove had been paid under his contracts therefor, and more than two months having expired after the quarter in which such service was'performed ; and this the defendants are ready to verify. Wherefore, they pray judgment if the said plaintiffs ought to have or maintain the said action thereupon against them.”</p> <p>The plaintiffs demurred to this plea, and the same having been overruled, declined to plead over, whereupon judgment was rendered for the defendants.</p>

<p>Hearing on an appeal by the plaintiff from a judgment on demurrer to application to a plea of the statute of limitations.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>It may be conceded that this case is not in express terms excepted from the statute of limitations ; but it is respectfully contended that the statute is not applicable to such a case. The law itself had prevented the institution of any suit by the appellant. The courts were effectually closed against him by the act of the law.- Lex nemini facit in-juriatn. No laches could possibly be imputed to appellant. The basis of the statute of limitations is laches; but where there is no party to sue there can be no laches. Richards v. Md. Ins. Co., 8 Cranch, 84. The remedy was suspended, and when the reason for the suspension ceased, then the right to prosecute revived.</p> <p>The Supreme Court of the United States has held that there are exceptions to the statute, other than those expressed therein. Montgomery v. Hernandez, 12 Wheat. 129 ; Hanger v. Abbott, 6 Wall. 532 ; Braun v. Sauerwein, 10 Wall. 223 ; United States v. Wiley, 11 Wall. 513. Concealed fraud is not in terms excepted by the statute of limitations, yet the duty to commence proceedings arises only upon discovery of the fraud ; and from that time only does the statute begin to run. And the rule is the same both at law and in equity. Bailey v. Glover, 21 Wall. 342 ; Kilboum v. Sunderland, \ 30 U. S. 505 ; Traer v. Clews, 115 U. S. 528; Rosenthal v. Walker, m U. S. 185 ; Moses v. Taylor, 6 Mack. 281 ; Leivis v. Denison, 2 App. D. C-39*-</p> <p>We are not, however, without direct authority on the question involved. Baird v. Reynolds, 99 N. C. 469 ; Toby V. Alten, 3 Kan. 395 ; McCandlcss Estate, 61 Pa. 9.</p> <p>There can be no substantial distinction between the running of the statute in the case of the inability of the plaintiff to sue, and the absence of a defendant who may be sued. That the statute does not run in case of the inability of the plaintiff is well established. Rockwell v. Young, 60 Md. 566.</p> <p>As a general rule, the statute of limitations having once begun to run, nothing will stop it. Wood on Limitations, sec. 6 and 251, pp. 7 and 494; McDonald v. Hovey, 110 U. S. 619; De Arnaudv. United States, 151 U. S. 483; Walden v. Gratz, 1 Wheat. 292 ; Harris v. McGovern, 99 U. S. 161 ; Hogan v. Kurtz, 94 U. S. 773. The bar of the statute cannot be postponed by the failure of a creditor to avail himself of any means in his power to prosecute or preserve his claim. Amy v. Watertown, 130 U. S. 320.</p> <p>It has been frequently held that the death of the debtor after the statute has begun to run, and want of administration on his estate, will not interrupt the running of the statute. Grangers. Granger, 6 Ohio, 35, 42; Marstel/er v. Marsteller, 93 Pa. St. 350; Hayman v. Kcally, 3 Cr. (C. C.) 325 ; Chevallier v. Durst, 6 Texas, 239; Tyson v. Brit-ton, 6 Tex. 222; Ellettv. Moore, 6 Tex.. 243; Rhodes v. Smethurst, 4 M. & W. 41.</p>

Hearing on an appeal from the decision of the Commissioner of Patents in an interference proceeding. The Court in its opinion stated the case as follows : This is an appeal from the decision of the Commissioner of Patents in an interference case involving the question of priority of invention of a process for the manufacture of what is called “ wire-glass ” — that is, glass with a metallic netting embedded in it.

Hearing on an appeal by the complainant from a decree in a suit to set aside a deed of certain real^ estate. The facts are sufficiently stated in the opinion.

<p>Hearing on an appeal from a judgment in condemnation proceedings instituted by the appellant to acquire land for railway purposes.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>This appeal presents the single question, May special, actual and immediate benefits to the residue of a tract of land, part of which is taken under the exercise of the right of eminent domain, be set off against the value of the part taken. This question is answered affirmatively in many of the States. In Alabama, California, Delaware, Illinois, Indiana, New York, Ohio, Oregon, South Carolina, Connecticut, Kansas, Maine, Minnesota, Massachusetts, New Hampshire. Lewis on Eminent Domain, secs. 469 and 470, and cases cited, among which are: Trinity College v. Hartford. 32 Conn. 452 ; Tospcrv. Saline County. 27 Kan. 391 ; Railroad Co. v. Waldron, 11 Minn. 515: Clark v. Worcester, 125 Mass. 537 ; Newly v. Platt, 25 Mo. 258 ; Daugherty \. Rroivn, 91 Mo. 26; Railroad Co. v. Burket, 46 Ala. 569 ; Railroad Co. v. Caldwell, 31 Cal. 367: Whitman v. Railroad Co., 2 Harr. 514; State v. .Evans, 2 Scam. 208; Young v. Harrison, 17 Ga. 30.</p> <p>It is obvious that there can be little Federal authority upon the question, yet the doctrine has been recognized in the late Circuit Court of the District of Columbia. Ches, and Ohio Canal Co. v. .Key, 3 Crunch C. C. 599.</p> <p>The question is an open one in this court, for in the opinion of this court in Prospect HUI Cemetery Co. v. District 0/ Columbia, 5 App. D. C. 497, the court carefully distinguished the case before it from one arising under a statute providing for allowance for such benefits, as the act of March 2, 1895, expressly does in section 24.</p> <p>In a case like the present, the finding of the commissioners that, the benefits are actual and immediate, the award not being excepted to by the owners and no motion for a new trial having been filed by them, is conclusive as to the character and value of the benefits. If this be so, it is manifestly equitable that they should be deducted in ascertaining the “just compensation” required by the Constitution. Cooley, Const. Lim. (6th ed.) 697 ; Lewis, Em. Domain, sec. 471.</p> <p>The predicate of these conjectural benefits is the supposed enhancement in value of the land not taken. But it is not every increáse in value that can be taken into consideration in fixing benefits. It must be the direct and special result of the improvement proposed and carried out, such as draining a marsh or bridging a water-course. Lewis on Eminent Domain, sec. 476. In this case an attempt is made to charge benefits against value in advance of any work actually done to accomplish that result.</p> <p>It is not deemed necessary to enter upon an elaborate discussion of the point presented by this appeal, because it has recently been decided against the contention of appellant, both in the Supreme Court and in this court. Monongahela Navigation Co ', v. United States, 148 U. S. 313 ; District of Columbia v. Prospect Hill Cemetery Co., 5 App. D. C. 497.</p>

Hearing on an appeal by the plaintiff from a judgment on a verdict directed by the court in an action on a bond. The facts are sufficiently stated in the opinion.

Hearing on an appeal by a defendant indicted for and convicted of violating secs. 102, 103 and-104. R. S. U. S., in refusing to answer certain questions propounded to him before a Senate investigating committee. The facts are sufficiently stated in the opinion. 1.

Hearing on cause transferred to this court from the Supreme Court of the District of Columbia by the act of Congress of August 2, 1894, for final determination.

<p>Hearing on air appeal by the defendant from a judgment on verdict in an action of ejectment.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is an action of ejectment. It appears that George O. Dixon, about June 13, 1862, as of an estate in fee simple entered into possession of lots 21 and 22 in square 117, in Washington. He died in Alexandria, Virginia, unmarried and without issue, August 10, 1862, leaving as heirs at law his brother, John A. Dixon, and his sisters, Mrs. Emily Wheat and Mrs. Jane E. Baker. The first two lived in Alexandria; the last in Massachusetts.</p> <p>By his will, attested by only two witnesses, George O. Dixon devised property to his brother and sisters, and made the children of his brother his residuary legatees, and appointed John A. Dixon his executor. Until 1885, the sisters were ignorant respecting these lots, and it appears that the brother believed that the lots passed to his children as residuary legatees of George O. Dixon.</p> <p>Mrs. Wheat died in 1875, leaving one child, a son, the plaintiff, Milton M. Wheat. The husband of Mrs. Baker died January 31, 1888. The record is silent respecting the husband of Mrs. Wheat. That his death occurred before this suit is ass.umed. This suit was brought and the declaration in ejectment was filed October 9, 1888.</p> <p>The lots were under lease to William H. Parker when George O. Dixon died, and on August 1, 1864, one James P\ Haliday, as attorney for John A. Dixon, administrator of George O. Dixon, deceased, leased these lots to William H. Parker for a term of ten years, commencing August 1, 1864, renewable for another term of ten years thereafter.</p> <p>On May 11, 1871, John A. Dixon, as guardian of his minor children, Arthur and Fanny Dixon, uniting with Ella Dixon his adult daughter, conveyed these lots to Henry A. Parker, for the consideration of $1,400, and on the same day William H. Parker assigned his lease of the lots to Henry A. Parker.</p> <p>On March 10, 1886, when they were-of age, Arthur and Fanny Dixon, as children of John A. Dixon and devisees of George O.' Dixon, conveyed their estate in these lots to Henry A. Parker, On the same day, however, John A. Dixon, “as one of the heirs of his brother George,” in consideration of $10, conveyed the lots to George S. Parker. This last conveyance was made at the written request of Henry A. Parker.</p> <p>■ The defendant, Louisa Morris, whose husband, Patrick Morris, died before this suit, claimed under a deed dated January 16, 1874, from Henry A. Parker to Patrick and Louisa Morris. These grantees entered in February, 1869, and the defendant has lived there ever since in a frame house erected thereon. This entry and possession was under a written agreement of sale, dated February 1, 1869, and the defendant made the full payment of the purchase money, and, thereupon the last named .deed was executed</p> <p>The recital by John A. Dixon, in his deed to Henry A. Parker, that the fee simple title was in his children, estops him from asserting title in himself. Heard v. Hall. 16 Pick. 457; Rensselaer v. Kearney, 11 How. 325. Dixon’s ■conveyance to George S. Parker was that of his title and interest only, and the grantee was not a bona fide purchaser. May v. Lc Claire, 11 Wall. 217. Equitable estoppel can be relied on at law. Dickerson v. Colgrovc, 100 U. S. 578.</p> <p>George S. Parker (who evidently became assignee of John A. Dixon for the reason that Dixon could not himself sue) is likewise estopped. He cannot maintain this action, and the verdict in his favor as one of the tenants in common is error. “ It is a settled rule,” says Stoky, J., “ thát all the plaintiffs in a suit must be competent to sue, otherwise the action cannot be supported.” Marstellcr v. McLean, 7 Cranch, 156.’</p> <p>2. When George O. Dixon died the lots were under lease. Immediately John A. Dixon entered, took the rents and appropriated' them to the use of his children. The lease of August 1, 1864, is entirely consistent with the belief on the part of John A. Dixon that the lots (together with the rents) belonged to his children. It does not purport to have been made by John A. Dixon, in his capacity as administrator. Administrators have no right to make leases. The lease is executed by Haliday, agent of Dixon. The words “ administrator of George O. Dixon, deceased,” are words of ■identity that disclose a principal. Whether that principal was acting in his capacity of executor (for he was not an administrator), or in his own right, or as guardian of his children, is a fact that can be shown without contradicting the terms of the lease.</p> <p>That John A. Dixon directed this lease to be made for the benefit of his children is apparent from the fact that in the clause of re-entry and the covenant for payment of rent we find the word “ Dixon,’-’ and not “ Dixon, administrator ; ” also from the fact that in John A. Dixon’s deed to Henry A. Parker this lease is referred to as “ made between James F. Haliday, his agent, an attorney of the said John A. Dixon (/. £\, agent of John A. Dixon, guardian), and W. H. Parker.”</p> <p>The learned judge below erred in assuming that this lease shows that the heirs of George A. Dixon were lessors. That is to assume that John A. Dixon when he directed the making of a lease did so for the benefit of himself and his two sisters without knowing it; and did so, supposing that the lots belonged to his children.</p> <p>William PI. Parker’s being in possession from date of George O. Dixon’s death in 1862, and paying rent to the John A. Dixon children, was a holding adverse to the heirs. Through Henry Parker the defendant, therefore, had been in possession as against the heirs, since 1862 — a period of twenty-six years before suit was brought.</p> <p>3. The motion in arrest of judgment should have been granted. We originally demurred to the declaration, on the ground that tenants in common could not join as plaintiffs in ejectment. The court sustained our demurrer. On appeal, the- General Term reversed the court below. We urged in argurrient upon demurrer before the General Term that the declaration fails to set forth, as required by the rules, “ the nature and extent of the estate claimed by the plaintiff in the premises.” This defect still exists, and is good ground now for arrest of judgment.</p> <p>Plaintiffs do not claim the land itself in fee simple. They do not allege that they were seized of the land. They claim an “interest” in the land. The nature of the estate thus claimed is therefore a fee simple interest, but its extent is not alleged, even by implication. It may be a fee simple in one-twentieth of the land ; or, nothing more than a fee simple interest in a single room of the house occupying a part of the land, i Washburn on Real Property (5th ed.), p., 18.</p> <p>A declaration should set forth the title of the plaintiff in terms.so explicit that a judgment in his favor will determine the character of his estate, and not simply his right of possession. Taylor x. O'Neil, 15 R. I. 198. Compare Craig v. Taylor, 6 B. Mon. 457.</p> <p>The plaintiffs, it is true, end their declaration by claiming “ possession of the whole of said part of lot 21.” But this is nothing else than formally asking the court to award them such possession. It is not an allegation of facts which show that plaintiffs upon the record are entitled to recover the whole of the land.</p> <p>An allegation that plaintiffs were possessed of the land is sustained by proof that they were once in possession of so much of the land as is embraced in their interest, be it more or less. Such interest may have extended no further than to one-twentieth of the premises described.</p> <p>Nor is the defect cured by verdict. It is no ground for asserting a cure by verdict, that the testimony appears to have been directed to the ownership of lots 21 and 22, lots which it is conceded include these premises as a part. It still remains that plaintiffs must establish the better title in themselves to land, to the possession, of which they must, by apt words, have alleged themselves entitled. They allege only an interest, the extent of which they do not state.</p> <p>The verdict may prove that all that the plaintiffs have alleged is true, and yet .fall short of establishing the fact that the plaintiffs are owners of all of “part of lot 2i,” as described. An interest in fee; simple in “part of lot 21 ” is proved by showing that a plaintiff owns some portion of such part. In other words, the declaration does not set forth what estate tire plaintiffs were unlawfully ejected from.</p> <p>1. This case is a controversy between the heirs at law of George O. Dixon, and those who claim through the alleged devisees of George O. Dixon, both parties claiming under George O. Dixon. The only question is, was the will valid as to the property, so as to vest title in the devisees, through whom the appellant claims. And to this question there can be but one answer, and that is, that as the will was not attested by three or more witnesses it was inoperative as to real estate situated in the District of Columbia.</p> <p>2. In the Federal courts, the doctrine of equitable estoppel has no place in actions of ejectment; and the defendant, therefore, cannot defend against the plaintiff’s legal title by proving an estoppel. Johnson v. Christian, 128 U. S. 374. That case is conclusive of this, even conceding that in this case there is an equitable estoppel. If the equitable estoppel in that case could not be set up as a defence in the action of ejectment, is it possible to conceive of an equitable estoppel that could be so used ?</p> <p>The general principle relied upon has been over and again declared by the Supreme Court. “ In actions of ejectment in the United States courts, the strict legal title prevails. If there be equities that should show' right in another that can only be considered on the equity side of1 the Federal Court.” Foster v. Mora, 98 U. S. 425.</p> <p>In addition to all this, there are other principles applicable to this case : 1. This is not the case of a conveyance without title and an after acquired title. 2. In order to work estoppel on the ground that one was silent when another purchased his- property, it is absolutely necessary that he should have known the property was his. 3. In order for a deed to work an estoppel it must be a valid deed. The rule is the same in Maryland. 70 Md. 305.</p>

<p>Hearing on an appeal by the petitioner from a judgment dismissing a petition for a writ of certiorari to vacate a water main assessment.</p>

Hearing on an appeal from a judgment in condemnation proceedings instituted under the act of Congress of March 2, 1893, providing for a system of highway extension in the District of Columbia outside the limits of the cities of Washington and Georgetown.

Hearing on an appeal by the plaintiff from a judgment on a verdict directed by the court in a proceeding by sci. fa. to revive a judgment. The facts are sufficiently stated in the opinion.

<p>Hearikg on an appeal by the United States from a judgment on verdict in an action on a bond against principal and sureties.</p> <p>The Court in its opinion stated the case as follows':</p> <p>This suit was instituted April 11, 1889, by the United States against William T. Collins, Francis McGhan, Robert Boyd, Milton M. Ward, Newton Crawford, William H. Slater, Joseph T. Brown and Cary W. White, upon an official-bond of said Collins in the sum of $100,000, exe~ cuted April n, 1869, as required by law, for the faithful discharge of the duties of pension agent at Washington. He served as pension agent from April, 1869, to January 29, 1872, and on settlement was found to be in arrears to the amount of $49,525.06.</p> <p>The death. of defendants McGhan, Ward, Crawford and . White was suggested February 4, 1895 ; but no order seems to have been entered thereon. It does not- appear whether Collins and Brown were ever served with process, and no disposition of the case as to them seems to have been made.</p> <p>Defendant Boyd entered a plea of non cst factum. Defendant Slater's plea was to the effect that he executed the bond upon the condition that the same should first be executed by defendant Boyd; that the said Boyd's signature appeared on the bond and was represented to be genuine, and that he has since discovered that the said signature was forged ; wherefore he prayed judgment, etc.</p> <p>On the trial the Government offered the bond, and, proving the death of the two subscribing witnesses, John S. Hollingshead and Timothy Luby, offered proof of the genuineness, of their signatures as well as that of the principal, Collins. Proof was then^made from the records of the Treasury Department of the indebtedness of Collins. Robert Boyd testified that he had not signed the bond; that he had been solicited to do so by the subscribing witness Luby and one Whalen, who was Luby’s clerk, and had declined. He said further, under objection, that after seeing' the published list of Collins’ sureties, in connection with notice of his defalcation, he called to see Hollingshead, who was not only a • subscribing witness, but also the notary who certified to the acknowledgement of the signatures of all the parties. He recounted the interview with Hollings-head as follows: “I asked him if he knew me, and he said he did. I asked him where my place of business was, and he said on Ninth street. I-then said, ‘Did T ever appear before you and sign, or ask you to certify to my signature on the bond of William T. Collins, or did I ever execute a paper of that kind before you ? ’ He said that I never had ; that the Boyd who appeared before him was another Boyd, a friend of Mr. Whalen.”</p> <p>A witness named Molier, called by Boyd, testified in corroboration of the foregoing statement concerning the interview with Hollingshead.</p> <p>Boyd further testified that he called to see Luby, the other subscribing witness, also. Luby called on Whalen, who was in the next room, and said to him : “ Whalen, didn’t you tell me that Robert Boyd signed this bond?” Whalen’s reply was not permitted to be given. Luby then said (to Boyd) : “This bond was brought to me, and I signed my name to it. I never witnessed your name, but I signed it because Whalen said you had signed it.” This testimony, as well as that of Molier, was objected to by the plaintiff, and a bill of exceptions taken to its admission. There was also testimony tending to show that the signature resembled Boyd’s ordinary signature very closely, etc.</p> <p>Slater testified, over objection also, to the fact alleged in his plea, that he signed upon condition that Boyd’s signature should be first obtained; and that he supposed the signature represented to be Boyd’s was genuine.</p> <p>At the request of the defendants the following special prayer was given to the jury: “ If the jury believe from the evidence that the signature of Boyd is a forgery, they should find for him ; and, further, that upon the testimony in the case they should also find for the defendant Slater.”</p> <p>The general charge was as follows: “ The Government is bound, in order to make out.its case, to satisfy you by a preponderance of the evidence that this is Robert Boyd’s genuine signature. If the Government has done that, you should return a verdict for the Government for the amount claimed as against both Boyd and Slater. They are the only defendants who are before the court now. If, on the other hand, the Government has not so satisfied you that the signature of Boyd to the bond is his genuine signature, and if you believe from the evidence that the defendant Boyd did not sign the bond, you must return a verdict for both the defendants.” The verdict was for both defendants, and from the judgment rendered thereon this appeal has been prosecuted.</p> <p>The court will observe that Slater did not deny in his testimony the genuineness of the bond, so far as his own seal or signature are concerned ; nor was there any evidence whatever tending to show that the plaintiffs had any notice that he signed the bond in the belief or with the expectation that Boyd would sign it. The genuineness of the bond as against both.the defendants was established by the proof of the signatures of the attesting witnesses, and there was no attempt to impeach it, so far as Slater was concerned, i Greenl. Ev., sec. 575 ; Kay v. Brookman, 3 C. & P. 555 ; Sluby v. Chaplin, 4 Johns. (N. Y.), 461 ; Douglas v. Sander-son, 1 Dali. 116; Cooke v. Woodrow, 5 Cr. 13. It was therefore error to take the case.from the juty as to the defendant'Slater, as the court did in granting the instruction set forth in the fifth assignment of error. The fact that the name of a surety was forged cannot affect the liability of the .other sureties, the bond being complete and the condition upon -which the bond was signed unknown to the ob-ligees. State v. Baker, 64 Mo. 167.</p> <p>A subsequent surety is not to be discharged because the name of a prior one has been forged; “ his own signature is an implied assertion of the genuineness of those which precede it.” Ins. Co. v. Brooks, 51 Me. 506; Mathias v. Morgan, 72 Ala. 528 : Stern v. People, 102 Ill. 553, 554.</p> <p>Where there is nothing to put the obligee on inquiry as to the manner of execution, the bond cannot be avoided on the ground that the surety signed it upon conditions unknown to the obligees. Dare v. - United States, 16 Wall. I ; Citing Green v. United States, 9 Wall. 658.</p> <p>1. While the authorities are somewhat at variance as to the admissibility of the admissions of a deceased witness made áfter a former trial, to contradict his former testimony, which was reduced into writing, and is being used at another trial when he has been fully Examined and cross-examined in the former trial, still all the American authorities agree upon the admissions of the declarations of a deceased subscribing witness,'and the doctrine of the English case of Stobart v. Dryden, 1 M. & W. 615, has been repudiated and with,-we think, very good reasons, for the rule of laying a foundation before you can contradict a witness is merely a rule of form and not one of competency. Boylen v. Meek'er, 4 Dutcher, 294; Otterson v. Hofford, 36 N. J. L. 130; Reformed Church v. Ten Eyck, I Dutcher, 46 ;-Lossee v.'Lossee, 2 Hill, 609 ; Neely v. Neely, 17 Pa; St. 227.</p> <p>2. The bond sued upon in this action is alleged to-be a joint and several bond and the declaration alleged “ that the defendants jointly and severally acknowledged themselves to be indebted to the plaintiff, etc.,” so that, if the bond is not the joint and several bond of the defendants, the action must fail, and where the jury determined by the verdict that.it is not the joint and- several bond of one of the defendants, we hold that the determination-as to one. must govern as to all; for the' judgment- in á cause-must follow the record.</p> <p>It is well'settled that upon a suit on a -joint contract --recovery cannot be had against some of the defendants. Kihgs-land v. Koepe, 28 -N. -E. Rep.. 48 Boys. v. Shawhan, 25. Pac. Rep. 1063. And when the plaintiff elects to sue the parties jointly upon- his joint and, several-‘contract, he is bound by his.electio.n. United States v. Ames, 99 U. S. 35 >Sessions v. Johnson,.g$ U.- 5.- 347 ; Magruderv. Belt, 7 App. D. C. 303 ; Parke v. Edge, 42 Ala. 631 ; Helm v. Van Vleet, 1 Blackf. 342 ; Platner v. Johnson et al., 3 Hill, 476 ; Flake v. Carson, 33 Ill. 518; People v. Organ et al., 27 Ill. 27; Goodalc v. Cooper, 6 Ill. App. 81.</p> <p>The exception to the above proposition arises only in cases where one of the defendants has pleaded in discharge, some matter personal to himself, as discharge in bankruptcy. The reason of the distinction is obvious, and it is this : That such special personal defence does not falsify the averment of an original joint promise, but admitting it avoids it by the averment of matter subsequent. Robinson v. Brown et al., 82 Ill. 279; Woolers v. Kauffman, 67 Tex. 488 ; Jameson v. Barber, 56 Wis. 630 ; Minorv. Mechanics’ Bank, 1 Bet. 75.</p> <p>A judgment in favor of one of the joint and several ob-ligors, in a plea filed to the merits of the case, would enure to the benefit of all, for the release of one of the joint and several obligors releases all. Booth v. Campbell, 15 Md. 569.</p> <p>3. Every person capable of entering into a contract has the right to decide for himself into whose company he will associate and thereby enter into contract relations. He has ' reserved unto himself, therefore, whom he will exclude or whom he will accept as the condition of his joining with others. Because, if one is discharged the responsibility of the other is increased. Hall v. Parker, 37 Mich. 590. The bond here sued upon shows upon its face, as recited and filled up before signing, that it was to be executed by the defendant, Boyd, and although the bond seems to be expressly worded as though he had become obligor, jointly with other persons, it was never, as appears from the evidence, executed by him nor was his assent ever given to it as a party. Therefore, the omission on the part of the plaintiffs- to prove the genuine signature of Boyd, or to prove his assent to the manner in which it was executed, ' rendered the bond invalid. Murfree on Official Bonds, Sec. 658 ; Chamberlain & Topp v. Brewer, 3 Burk. 561 ; Seely v. The People, 27 Ill. 173 ; Guild v. Thomas, 25 Am. Rep. 703 ; Sharp v. The United States, 28 Am. Dec. 676.</p>

<p>Hearing on an appeal by the defendant from a judgment under the 73d rule in an action on an open account.</p> <p>The Court in its opinion stated the case as follows :</p> <p>The appellee, Samuel W. Bogan, who was plaintiff below, sued the appellant, James W. Pumphrey, upon an account for $1,396, and obtained judgment through motion under the 73d rule of the Supreme Court of the District of Columbia. Defendant pleaded non assumpsit and the statute of limitations. As shown by tne particulars of demand, attached to the declaration, the greater part of the account sued on had accrued due more than three years before the institution of the suit. Plaintiff did not file a replication alleging the new promise within three years ; but in his affidavit under the rule aforesaid, stated that the defendant had repeatedly admitted the justice of the demand and promised to pay it within the three years ; and that the last promise to pay was made within one month before suit was begun. Defendant alleged, in his affidavit in reply, “ that the pleas to the declaration by this defendant are true, and are made and adopted as part of this affidavit of defence; that said action at law upon which this defendant is sued is barred by the statute of limitations; that no demand for said sum sued for was ever made upon this defendant by the plaintiff; that this defendant never promised, the plaintiff the said sum sued for; that said action at law is not grounded upon accounts between merchant and merchant,” etc.</p>

Heakinc on an appeal by the petitioners from an order of the Orphans’ Court dismissing- a petition to review' a previous order of that court refusing to admit to probate a’ certain paper-writing claimed to be part of a will.

Hearing on an appeal from an order quashing a writ of attachment. The Court in its opinion stated the case as follows: This is an appeal from an order of the Supreme Court of the District of Columbia quashing a writ of attachment that had been issued at the suit of the appellant, Wilkins and Company, against the appellee, Joel Hillman, by way of mesne process.

<p>Upon the petition of The National Cable Company for leave to be allowed an appeal from an order of the Supreme Court of the District of Columbia sustaining a demurrer filed by the defendant, The Washington and Georgetown Railroad Company, to one of two counts of a declaration filed in that court by the petitioner as plaintiff.</p>

<p>Hearing on an appeal by the complainant from a decree dismissing a bill of review.</p> <p>The Court, in its opinion, stated the case as follows:</p> <p>This is an appeal from a decree dismissing a bill of review. The decree sought to be reviewed was passed in the Supreme Court of the District of Columbia, January 24, 1894, upon a bill filed therein by the S. L. Davidson Mortgage Company, of Kansas, one of the appellees, against the appellant, Charles B. Osborne.</p> <p>The allegations of the bill were: That one Nannie E. Royer, now Moore,'about; January 1, 1889, being indebted to one C. 1C Jones, of Wichita, Kansas, as evidenced by her promissory note, conveyed to him, to secure the same, a certain lot in said city ; that said note was, upon valuable consideration, assigned to complainant; that the said Nannie E. Moore and husband, on March 30, 1889, conveyed the said lot to the said Charles B. Osborne, who assumed, and agreed to pay, the said incumbrance; that said note, having matured, and being unpaid, the said mortgage company brought suit to foreclose the said mortgage in the District Court of Sedgwick County, Kansas ; that foreclosure was duly had, and the property sold under the decree thereof, for the sum of $50, which left a balance due of about ¿350, and that demand had been made on said Osborne for payment, and by him refused, etc. The prayers for relief were general and special. The original note, the mortgage and a copy of the deed from Nannie E. Moore and husband to Osborne were filed as exhibits to the bill.</p> <p>W. C. Stone entered an appearance as solicitor for Osborne, but filed no demurrer, plea or answer ; and on February 18, 1893, a decree pro confcsso was passed. On July 25, 1893, there was filed a deposition of Douglas S. Mackall, one of the complainant's solicitors, and a certified transcript of the proceedings in the foreclosure suit, with decree therein. The deposition showed that said Mackall had presented die original note and mortgage, with a copy of the deed from Moore and wife to Osborne, which showed that he bad assumed said debt, and demanded payment of him ; that he admitted he was was the grantee in the deed and had accepted it; that he declined to pay, unless, after con-, suiting counsel, he could see no way to avoid it; and that he had never paid any part thereof. On September 21, 1893, the cause was placed on the calendar for the October Term, and on January 24, 1894, final decree was passed establishing a debt of $350.85, and awarding execution. Fieri facias was issued and ordered served by the marshal, A. A. Wilson, who is made a party to this action.</p> <p>The following allegations of the bill of review set forth the grounds upon which relief is prayed:</p> <p>“ Your complainant further charges and avers that soon after the said bill was filed he was informed thereof and duly consulted and retained counsel regarding the same, who advised your complainant from time to time that the said cause was progressing satisfactorily, and that your complainant’s rights and defences were being duly protected and presented. The first knowledge which your complainant had as to the true state of the case and the neglect of his counsel was recently conveyed to your complainant by a letter from the marshal informing your complainant that the marshal held a writ of fieri facias against the property of your complainant. Your complainant at once retained other counsel and caused a careful investigation of the said cause and proceedings to be made, from which it appears, that the counsel originally retained by your complainant in this cause had done absolutely nothing but enter his appearance for your complainant and order a copy of the bill and one of the exhibits, and from that time on has utterly neglected and abandoned the cause ; of all which your complainant had not the least knowledge or information, but, on the contrary, was advised from time to time as aforesaid,</p> <p>“ Your complainant further charges and avers that there was never any knowledge or information on his part of the provision contained in said deed from said Nannie E. Moore and Lowry L. Moore to him, whereby your complainant assumed to pay said mortgage, until after the said bill was . filed, and said provision was inserted in said deed by the scrivener without the knowledge or direction of either the grantors or grantee therein, and contrary to their contract and agreement concerning the said mortgage. Your complainant was engaged in the grocery and provision business in the city of Washington, District of Columbia, and the said Nannie E. Royer became indebted to him for groceries and provisions and became unable to pay in cash complainant’s account against her. She. stated to complainant that she had some lots in Wichita, Kansas, which .she would convey to him in settlement of his bill, and relying solely upon her representations as to their value and believing that he could not do better, your complainant agreed to accept her interest in the said lots in settlement of her said account. Your complainant had and has never seen the said property and knows nothing of it of his own knowledge. There was no contract, understanding, or .agreement of any kind between the said Nannie E. Moore or Lowry L. Moore and your complainant that your complainant should assume to pay the said mortgage on the said lots, but, on the contrary, it was distinctly understood and agreed that your complainant should receive the- interest of the said Nannie E. Moore in said lots subject to the said mortgage, but without other or further liability upon his part by reason of said mortgage or other matters, and the said provision was' improvidently, improperly, and without any direction, contract, agreement, understanding, or authority, inserted-in the said deed by the scrivener thereof, and should be stricken therefrom.</p> <p>“ Your complainant further avers that the said property was conveyed to him by the said Nannie E. Royer by her deed, dated February 7, A. D. 1889, recorded March 22, A. D. 1889, in Liber No. in, at folio 15, one of the land records for Sedgwick County, Kansas, which said deed contains no reference of any kind to the said mortgage nor any assumption thereof. A true copy of the said deed is hereto annexed as part of this bill of complaint, marked ‘ Complainant’s Exhibit C. B. O., No. 1.’</p> <p>“ Your complainant therefore charges and avers that the said deed of March 30, A. D. 1889, from the said Nannie -E. Moore and I.owry L. Moore to him was entirely null and void for the reason above stated ; that the said property liad been conveyed to your complainant by the said deed of February 7, A. D. 1889, so that at the time of the execution and delivery of the said deed of March 30, A. D. 1889, no right, title, interest or estate of any kind whatsoever in, to or out of the said property was vested in of held by either the said Nannie E. Moore or Lowry L. Moore by reason of the premises aforesaid.</p> <p>“ Your complainant further charges and avers that since the filing of the original bill of complaint herein he has discovered the said deed of February 7, A. D. 1889, of which he had not theretofore any knowledge, information or belief, as your complainant was always of the impression that the said deed of March 30, A. D. 1889, was the deed by which he acquired title to the said property, and he was not aware until after the filing of the original bill of complaint herein that the said deed of February 7, A. D. 18&9,, had ever been executed or delivered, or was in existence. Your complainant entrusted the matter entirely to his counsel,,and the said deed of February 7, A.. D. 1889, has, as aforesaid, been discovered by the said counsel and by him delivered to your complainant, so that by no possibility could your complainant have proven the execution and delivery of the said deed as a defence in the cause in which the said decree was rendered, for, as above set forth, it has only recently come to the knowledge of your complainant that the said deed of February 7, A. D. 1889, had been executed and delivered and that by it, and not by the said deed of March 30, A. D. 1889, the title to the said property passed to your complainant. Your complainant’s said solicitor had lost all recollection of said deed of February 7, A. D. 1889.” ■</p> <p>Defendants demurred to the bill, assigning a number of grounds, among which was the omission of an allegation that the money had been paid under the .decree, or that there was some good reason for not doing so. This was overruled, and defendants answered, putting in issue the charges of the bill.</p> <p>The defendant offered no testimony, and the bill was dismissed on the testimony adduced in support thereof by the appellant.</p>

Hearing on an appeal by the defendants from a decree in a suit to establish a resulting trust in certain real estate. The Court, in its opinion, stated the case as follows: This is a suit in equity filed by the appellee, the Smithsonian Institution, to establish its title to certain real estate in the city of Washington, against the claims of the appellants, Levi W. Meech and others.

Hearing on 'an appeal by the petitioner from a judgment dismissing a petition for a writ of habeas corpus. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the petitioner from a judgment dismissing a petition for a writ of habeas corpus. The facts are sufficiently stated in the opinion.

<p>Hearing on an appeal by the defendant from a decree in-an equity suit for a partnership accounting.</p> <p>The Court! in its opinion, stated the case as follows:</p> <p>This is a proceeding in equity for'the settlement of partnership accounts.</p> <p>Upon a former appeal in the case we affirmed a decree of the Supreme Court of the District of Columbia, which declared void an alleged agreement between the parties and ordered a reference to the auditor of that court for the statement of an account between them. See Baker v. Cummings, 4 App. D. C. 230. Upon the reference thereafter had the auditor found the sum of $27,916.57 -to be due from the appellant to the appellee, with interest on $27,350.09 thereof from September 1, 1889, the date of the final dissolution of the partnership, to July 1, 1895, and on $566.48 thereof from October 30, 1890, when it was shown to have been actually received by the appellant, to July 1, 1895. The date of- July’i, 1895, seems to have been adopted by the auditor as the date to which he would calculate the interest, for the reason that it was expected that •on or about that day the court would act upon his report, which was filed on June 18, 1895. The total'amount of the interest thus calculated was $9,731.13, and this, added to the principal, made a total sum of $37,647.70 due from the appellant to the appellee as of the date of July 1, 1895.</p> <p>•Exceptions were taken to the report by both parties ; but' at the hearing these were all overruled, and the report was ratified and confirmed. The court then'proceeded to enter up a" decree in accordance with the report. But" it seems that it was about to keep open a certain matter- of controversy between the parties, wherein the fees- or\^profits did not appear to have been fully collected by the complainant, • who was the person charged with the management of that portion of the partnership business ; and thereupon the complainant, being desirous of an absolutely final decree and termination of the -litigation, consented in open court to a further allowance of $4,875.56 in favor of the appellant, which! in addition with the amount allowed by the auditor ' in the same connection, constituted the total amount oi the principal sum or fee claimed therein by the appellant. This further allowance was accordingly deducted from the aggregate amount of the principal and interest, as found by the auditor, and a decree was rendered in favor of the complainant, the appellee here, for the sum of $32,772.14, being the balance of the account, with interest upon such balance from July 1, 1895, until'paid, for which execution as at law was awarded. From this decree thé defendant has appealed to this court.</p> <p>1. As to appellant's claim for personal services. The agreement of September 6, 1S86, was a dc facto dissolution of the.partnership quoad these inspector cases,- and though it has been decided that it was not a dissolution dcjttrc, yet it should be taken into consideration upon settlement of the partnership accounts, and entitles the appellant to a .reasonable compensation for services rendered after the dc facto dissolution. The appellee has appealed to a court of equity,, and will be required to do equity.</p> <p>The general rule is that without an agreement, expressed or implied, one partner is not entitled to compensation for services rendered-in the partnership business. We claim that in the present case there was clearly an implied, if not an express, agreement that Mr. Baker should receive compensation for his services. In Levi v. Karrick, 13 Iowa, 344, there had been a settlement between partners up to a certain date. , Suit was brought to set it aside, but the'court upheld the settlement -and.decreed a dissolution' and an accounting since the date of the settlement. The auditor, in stating the account, refused to allow compensation to one of the partners for services rendered in the firm business. The court sustained an exception to that part of the auditor’s report,.and, after stating the general rule, says; ‘‘-If an agreement that a partner shall be paid for his services can be fairly and justly implied from the course of business between them, he is entitled to compensation.” The same is asserted in Lewis v. Moffatt, 11 Ill. 400, where the allowance is placed upon the ground of the acquiescence of the other partner in the work for which compensation is claimed. See also Cramer v. Bachman, 68 Mo. 310; 2 Lindley on Partnership, p. 775 and notes; Airy v. Barham, 29 Beav. 620; Dumont v. Reupprccht, 38 Ala. 175.</p> <p>There is as mtich reason and equity for allowing compensation for services under the circumstances of this case as there is in the case of a surviving partner, where it is always allowed if he continues the business and profits accrue. Featherstonangh v. Turner, 25 Beav. 382 ; Schenkl v. Dana, 118 Mass. 236; Cameron v. Francisco, 26 Ohio, 190. In the present case Mr. Baker not only continued the business then on hand, but obtained new and lucrative business, viz., inspector cases to the amount of some 865,000.</p> <p>2. As to the allowance, by the decree, of interest, and of interest upon interest. It has been the policy of the law not to aid in the collection of compound interest. Ben-schootcu v. Lazvson, 6 Johns. Ch. 313. At common law judgments did not draw interest. Freeman on Judgments, sec. 441 ; Crcuse v. Hunter, 2 Ves. Jr. 157.</p> <p>In this District there are two statutory provisions as to interest entering into judgments, viz.: Secs. 713 and 829, Rev. St. of D. C. The former would seem to apply where the subject-matter does not, of itself, draw interest. The latter applies where the interest begins to run from a time ante-dating the judgment. Judgments in this District are never entered for an amount which includes the principal, with interest to date of entry, and making this a new principal to bear interest. In this respect equity follows the law, its decree standing in the place, and being in the nature of a judgment at law. Conn. v. Jackson, 1 Johns. Ch. 13 ; Hammond v. Hammond, 2 Bland, 306. Upon this point there is a perfect analogy between, the .case at bar and that of Spalding v. Mason, 161 U. S. 375. There certainly is no law, equity or reason why interest should be compounded in the case at bar, and notin the case last referred to. On the contrary, we claim that by reason of the facts in this case, especially the acquiescence of Cummings in Baker’s conducting the business as his own, doing the work and defraying the expenses involved therein, without claim or demand by Cummings that the proceeds should be divided with him until he filed his bill in this case in February, 1890, the equities are strongly against the harsh exaction of compound interest.</p>

Hearing on an appeal by the defendant from a decree awarding alimony in a proceeding under the act of Maryland of 1777, ch. 12, in force in this District. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the defendant from a decree for complainant in a suit to enforce a decree for a specific sum of money rendered in another equity proceeding. The Court in its opinion stated the case as follows : This is á proceeding in equity by a creditor to enforce a decree for a specific sum of money rendered -ip his favor in another equity proceeding.

Hearing on an appeal by the plaintiff from a . judgment on verdict in an action to recover damages for personal injuries. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the plaintiff from a judgment on demurrer in an action to recover the amonnt of a liquor license fee paid under protest.

'Hearing on an appeal by the defendant from an order vacating an entry of satisfaction of a judgment. The Court in its opinion stated the case as follows : This is an appeal from an order of the Supreme Court of the District of Columbia vacating an entry of satisfaction of a judgment that had been rendered in favor of the appellees.