Volume 9 — District of Columbia Reports

<p>I. A deed contained a recital that there were eight promissory notes in. the hands of another person, for one thousand dollars each, secured by a deed of trust on the property thereby conveyed, and then there is this covenant, “ and the said party of the second part (the grantee) hereby assumes the payment of the same as part of the consideration of thia deed, and will hold the said Weaver (the grantor) harmless from all obligation thereon.” Held, That this covenant bound the said grantee-to satisfy said notes, together with all interest that had accrued or that might thereafter accrue, although he would thereby be liable to pay more than the amount of the consideration expressed in the deed.</p> <p>II. No principle of law, in courts of equity as well as in the courts of common law, is better settled than that all negotiations by parol prior to the execution of a written contract are merged in such contract, and more especially in a contract under seal; and that a party will be estopped from proving such was not the contract between the parties unless the party alleges that his signature was procured by fraud, imposition, or other dishonest practices.</p>

This is a bill in chancery to redeem certain lauds which the complainant had conveyed to the defendant by a deed absolute on its face, but which he alleges was only a security for money lent him by the said defendant.

This is an application for a mandamus, to be directed to the-Commissioner of Patents, requiring him to allow the relator an appeal from a decision made by one of the primary examiners in the Patent-Office j and arises upon the following statement of facts: A patent was granted to Bigelow, the relator, on the 5th of July, 1870, for an improved machine to make heels for boots and shoes. On the 8th day of August, 1871, Stephen W..

<p>The ease is stated in the opinion of the court.</p>

<p>A bill filed on bebalf of a widow and infant beirs, to set aside a deed absolute on its face for fraud and want of consideration, contained a statement to tbe effect that, although the deed expressed a consideration, yet that nothing had been paid for the same, and that it was intended to operate as a trust; that an action of slander had been commenced against the grantor and his wife, (now the widow,) and that the conveyance was executed to defendant to protect the real estate therein from the result of said action at law, upon an agreement with said defendant that as soon as said action was dismissed, or decided in favor of the said grantor and his wife, he would reconvey the property to the said grantor, his heirs or assignees; and it was held that such an averment is fatal to the bill of complainant, and a court of equity will not interpose to set the conveyance aside, but will leave the parties to the consequences of their own act.</p>

This action was instituted by the plaintiff to recover damages for injuries sustained by Ms wife while a passenger on defendant’s railroad, in consequence of which she soon afterward died; and as is set forth in the declaration. “ By reason whereof he, the said plaintiff, was deprived of all the comfort, labor, benefit, and assistance of his said wife in his domestic and business affairs, which he otherwise might or would have had, and he, the said plaintiff, was thereby…

This is a hill in equity filed on behalf of certain infants, by their next friend, for the partition or sale of lot 17, square 269, in the city of Washington, in which the infants have an interest in common with adults.

This is an appeal from an order overruling a motion made at the circuit to set aside a judgment entered in this cause under the 75th common-law rule of tlie court. The declaration sets up an order accepted by the defendant in the words and figures following: “Washington, D. 0., “ February 12,1873. “G. G. Cornish: “Sir: Please pay Messrs.

<p>I; The circumstances required to create an estate by curtesy are marriage, seizin of the wife, issue born alive, and the death of the wife; and where the language of the habendum clause, in a conveyance of real estate to a married woman, was “ To have and to hold the said pieces or parcels of ground unto the said party of the second part, her heirs and assigns, to her and their sole use, benefit, and behoof forever,” and all of the foregoing circumstances had transpired, it was held that the husband had an estate as tenant by the curtesy.</p> <p>II. The act of Congress for the protection of the rights of married women in this District, so far as regards the rights of the husband in the real estate of his wife, is not retroactive, and applies only in reference to property acquired after the passage of the act.</p>

The plaintiffs state their case as follows : They sold to the defendants, E. F. Zell and Mary H. Zell, his wife, a lot of lumber and materials to build and erect a house upon the premises, being part of lot 14, in square 437, fronting on Seventh street, south 25 feet and running back 99 feet deep; that the said E. F. Zell and Mary H. Zell gave their promissory note to the plaintiffs for the sum of $653, .and dated 4th of February, 1870, and payable five months after date,…

The complainants filed their bill in this cause, praying for a construction of the will of the late John P. Hilton, and for the purpose of declaring the trusts.

A motion is made in this matter for a mandamus, commanding the Commissioner of Patents to issue a patent to the relator, Stephen Hull.

<p>STATEMENT OP THE CASE.</p> <p>The bill states that, on January 31, 1874, the defendant,. Rundlette, agreed to lease to the plaintiff a certain house and premises in the city of Washington, for a term of five years from the 6tb day of February, with the privilege to the defendant of continuing the same for a further term of five years, at a yearly rent, payable monthly; that the plaintiff,, on February 6, 1874, took possession of said premises “under-said agreement,” and moved his stock therein “ to carry on the grocery and liquor business, the said Rundlette knowing at the time of making the agreement that said business was-to be carried on there;” that he paid the monthly installments of rent in March, April, and May, the defendant ‘‘ promising continually to execute the lease as aforesaid ; ” that in the month of May -the plaintiff had a lease prepared and gave it to the defendant, Rundlette, for execution, and she, after considering it, returned it to plaintiff, declining to-sign it, and refused to give him a lease; that plaintiff failed to pay the next month’s rent at maturity, and refused to pay the same, or any part thereof, and the defendant, Rundlette, had sued him before the defendant, A. S. Taylor, justice of the peace, and obtained a judgment for the amount thereof,, and was about to issue execution therefor; that defendant, Rundlette, had given him a thirty days’ notice to quit said demised premises, and intended to eject him therefrom, and prays that execution on said judgment might be enjoined; that defendant, Eundlette, be enjoined from turning plaintiff out of said demised premises; that defendant, Eundlette, be required to deliver to “ plaintiff a valid lease, in accordance with the terms of the agreement hereinbefore recited;” and for general relief.</p> <p>The answer of Eundlette denies that she made such agreement to lease,saying she did propose alease, but that no terms were agreed upon; that afterward, at the final conversation, the plaintiff agreed to take the property as a monthly tenant at a reduced rent; that, in pursuance of that agreement to hold as a monthly tenant, plaintiff entered upon said premises. She denies that she subsequently promised or proposed to give a lease; that subsequently plaintiff did present to her a lease for execution, which, after consideration, she returned, saying, “I never promised to sign such a lease; that I never had proposed to lease the property on any such terms; ” admits the failure of plaintiff to pay rent, the suit, trial, and judgment therefor, and that she caused to be served a thirty days’ notice upon plaintiff to quit the premises; she craves the benefit of the statute of frauds, as if the same were specially pleaded, and calls upon plaintiff to produce the lease, and his receipts for rent.</p> <p>Thomas Dolan and Daniel McCarthy were examined as witnesses by complainant, and testified that they were present at a conversation between said Walsh and Mrs. Eundlette, about the last of January, 1873, in which she agreed to give him a lease for five years with the privilege of five more; and McCarthy also stated, “ as much longer as he wanted it,” u and that there was nothing mentioned how the lease should be drawn.” The complainant was also examined as a witness, on his own behalf, and testified to the same effect. He also states, that “ Mrs. Eundlette said something about a lease as long as I pleased; I did not pay any attention to this because I thought such a thing would be outrageous.”</p> <p>The defendant testified as follows:</p> <p>“ I had several talks with these parties about renting the property. I proposed to give alease; there was no mention of the number of years. When I offered a lease they came back the second or third time and declined it. They rented, finally, the property by the month. I heard nothing about alease thereafter, until about the 1st of June. Mr. Walsh brought me a lease to sign; he left it with me for examination ; two days afterward he called for it, and I returned it refusing to sign.”</p> <p>On cross-examination: “ Mr. Walsh paid me rent as a monthly tenant.</p> <p>“ Cross-question. Do you swear that Mr. Walsh rented those premises from you as a monthly tenant ? I want you to state that. — A. Yes, sir.”</p> <p>John Henderson testified that in the trial before Justice Taylor the plaintiff testified that Mrs. Rundlette agreed to give a lease for five or ten years, or as long as he wanted it.</p> <p>At the hearing, December 19, 1871, Mr. -Justice Wylie decreed, that within ten days the defendant execute and deliver to the plaintiff a lease of premises for a term of five years from the 6th of February, 1871, at an annual rent of $150, payable in monthly installments of $37.50, with the privilege to the plaintiff of renewing the lease for five years longer, with the usual covenants for prompt payment of rent; and for right of entry of lessor for default in payment of rent.</p> <p>December 28,1871, defendant appealed from this decree.</p>

<p>>On a rehearing, the doctrine is again affirmed that this court will not compel the Commissioner of Patents hy mandamus to issue a patent even in a case where the examiners-in-chief have rendered a decision in favor of the applicant.</p>

The complainant executed his negotiable promissory note on the 13th of October, 1870, for the sum of $5,000, payable in four years, with interest at ten per cent., the said interest to be paid semi-annually, and at the same time, to secure the payment of said note, made a trust-deed to one Daniel Eaton, on a lot of ground, in square 732, in this city.

The declaration contains one count, stating, in substance,, that the defendant is a Virginia corporation, doing business-in the District of Columbia, and operates a railroad for the conveyance of freight and passengers from the city of Lynch-burg to Ohristiansburg, both in the State of Virginia.

Frederick G. and William F. Niedringhaus made the following application for a design patent: “ To all whom it may concern: “Be it known that we, Frederick G. Niedringhaus and William F. Niedringhaus, both of the city and county of Saint Louis, State of Missouri, have invented and produced a new and original design of ornament or pattern to be printed, painted, or otherwise placed on, or marked into, the various articles of enameled iron-ware made and sold by us. “The nature…

<p>STATEMENT OE THE CASE.</p> <p>On the 14th day of May, A. D. 1874, an information was filed in the police court of the District of Columbia, charging the defendant with having engaged in the business of a commercial agent within the District of Columbia without first having obtained a license therefor. This prosecution was based upon an act of the late legislative assembly, approved August 23,1871, and amendments approved June 20,1872, the first section of which provides—</p> <p>“ That no person shall be engaged in any trade, business, or profession hereinafter mentioned until he shall have obtained a license therefor, as hereinafter provided.”</p> <p>Clause third of section 21 o? the same act provides as follows :</p> <p>“ Commercial agents shall pay two hundred dollars annually. Every person whose business it is as an agent to offer for sale goods, wares, or merchandise by sample, catalogue, or otherwise, shall be regarded as a commercial agent.”</p> <p>The penalty for violation of this law by engaging in business without license is provided for by section 4 of the same act, as follows:</p> <p>“ That every person liable for license-tax, who may fail to pay the same before engaging in the business for which the license may be required, shall, in addition to the license-tax imposed, pay a fine or penalty of not less than five nor more than fifty dollars for each offense, to be imposed and collected as provided in this act.”</p> <p>By section 2 of the amending act of 1872, jurisdiction is given to the police court.</p> <p>The defendant was adjudged guilty as informed against, and a fine of $250 was imposed upon him. An appeal was taken to the criminal court, and the case duly docketed. An agreed statement was then filed, and the cause coming on to be heard before Mr. Justice MacArthur, was by him certified to this court. The agreed statement is as follows :</p> <p>“It is agreed that defendant offered goods for sale in the District of Columbia by card, sample, or catalogue; that he had no license so to sell from the authorities of the District of Columbia; that he was the treasurer and one of the directors of the Humason & Beckley Manufacturing Company of New Britain, Connecticut; that the goods he so offered for sale were all the product of that company; and that he received no commission or other compensation for so selling other than regular salary. It is further admitted that the above-named Humason & Beckley Manufacturing Company is a joint-stock corporation, formed for the purpose of manufacturing, buying, selling, and dealing in all articles of hardware, which fully appears by the certified copy of the certificate of incorporation filed in this cause.”</p>

The bill of complaint states substantially as follows-: The plaintiff, on the 15th day of May, 1873, entered into a-contract in writing with the defendant, Drane, by which the-said Drane, in consideration of the sum of $19,118, agreed to erect, within six months from the signing of the contract, two brick dwelling-houses, to the entire satisfaction of the owner and architect, who was to have power to stop all work, when it should appear to him to be to the interest of…

This is a bill of review brought to have a former decree of' this court reviewed aud reversed as to the complaiuant in the present suit. The bill alleges that Elijah Shelton, late of this District, by a deed dated 28th July, 1853, and duly recorded, conveyed to complainant the north half of lot 23,. in Beatty and Hawkins’s addition to the city of Georgetown.

<p>I. The lien of a judgment-creditor upon real estate has priority over am. attorney’s lien for services rendered, the defendant in a subsequent suit involving the same property.</p> <p>III. Where such real estate is decreed to be sold in an equity suit, and the proceeds of the sale to be distributed among those entitled to them according to their respective liens, such judgment-creditor has the same preferable lien upon the proceeds of the sale.</p> <p>III. Where an attachment is laid in the hands of a garnishee, who is also trustee appointed in an equity suit to sell the real estate, and it appearing that he had performed the trust, and a balance remained in. his hands due to the defendant, the attachment was properly laid.</p>

The complainant filed his bill to have a sale of certain real estate which had been sold under a power of sale in a trust-deed set aside and declared null and void.

The bill was filed by complainants against the defendants, claiming that they were joint heirs with defendants of one Catharine Anderson, deceased, who died seized and intestate of the real estate mentioned and described as lying and being in the city of Washington. The bill prayed for a partition or sale of the property, and also án account of the rents of the same and a fair distribution. A decree was entered in favor of the complainants.

<p>Where the property upon which a mechanic’s lien was claimed was described in the notice of lien as “ lots lettered A, B, C, D, and E, in the subdivision of original lot No. 2, in square No. 791, recorded in the office of the surveyor of the city of Washington, in liber R. W., No. 1, folio 62whereas the lots’were situated in square No. 971, which was the square recorded at the place of reference; and where also the description contained in the notice was applicable alone to Baid last-mentioned square, and where also the owners had not been, misled, and no other rights had intervened; the lien was upheld upon, the ground that the property was sufficiently identified.</p>

This suit was brought to declare a lieu upon real estate for work done and materials furnished by plaintiff for defendants, under a special contract in writing, dated August 24, 1867. The work was to be finished by the 3tst of January, 1868. The price was to be $1,756, and $500 payable on the 1st day of November next ensuing, on condition that the whole building should be roofed by that time, and the balance on time, after the completion of the house.

<p>I. The ordinance of the late corporation of Washington City, relating to the assessment of taxable property, and providing that no new building should be assessed until the same was completed and made ready for occupancy, has been repealed by subsequent legislation.</p> <p>II. If there has been an error in the valuation, the proper remedy is before the board of appeals.</p>

The facts are these: The defendant has a railway-track on Seventh street, in the city of Washington,» and the grade of that street had been lowered by the authority of the District of Columbia. On the 23d day of June, 1873, the railroad track and cross-ties of the defendant, on said Seventh street, near the junction on F street, were resting upon supports at an elevation of four or five feet above the surface to which said street had been graded.

<p>STATEMENT OE THE CASE.</p> <p>This was an action of slander. The declaration consisted of two counts. The first was abandoned, and the cause was tried below on the second alone. It stated that in the months of May and June, A. D. 1873, in the city of Washington, and District of Columbia, the defendant spoke and published of and concerning the plaintiff, in the presence and hearing of others, the words following: u He [meaning the plaintiff] is a damned thief.” “I [meaning the defendant] “paid him [meaning the plaintiff] three dollars a day for every day while he [meaning the plaintiff] was superintendent on Four-and-a-half street;” that “he [meaning the plaintiff] had robbed him [meaning the defendant] while he [meaning the plaintiff] was superintendent on Four-and-a half street, of a large amount of money, to wit, three dollars a day for every day that the plaintiff was superintendent on said street.” The plaintiff also alleges that by means of the speaking and publishing of said false, scandalous, and opprobrious, and malicious words the plaintiff has been, and now is, greatly injured and prejudiced in his good name, fame, and credit, insomuch, that many of the neighbors of the plaintiff, and other good citizens of the District, not knowing the innocence of the plaintiff in the premises, have believed the plaintiff to be guilty of said charged, and also has been thereby hindered and prevented from obtaining profitable employment, and that he has suffered great pecuniary loss thereby, to wit, the sum of $5,000. Plaintiff claims $20,000 damages, and costs of this suit.</p> <p>The plea is, “Not guilty.”</p> <p>Upon the trial of the cause, the plaintiff, after calling witnesses to prove the words uttered by the defendant, was examined as a witness on his own behalf, and, among other things, was asked by his counsel whether, after the utterance of the alleged slanderous words, he had applied and failed to get employment from any one. The question was objected to by defendant’s counsel, and the objection was overruled by the court; the plaintiff then answered that he had applied to the board of public works, the board of health, and the present commissioners of the District of Columbia, and failed to obtain employment. The defendant’s counsel objected to the answer as not being justified by the pleading, and as not showing that the failure to obtain employment was in consequence of the alleged slander. The objection was also overruled by the court, and this constitutes the first exception in the case.</p> <p>After the plaintiff’s case was closed, the defendant became a witness in his own behalf, and testified as follows, viz-: That the plaintiff had been employed by the defendant on a job of work, for which he had paid him, and that he never was employed by him on Four-and-a-half street; that the plaintiff was superintendent during part of the time, and during that time required defendant to pay him different sums of money, which he did.</p> <p>The plaintiff inquired of him, upon cross-examination, whether he had spoken the words as testified to by Whitaker, Oarahan, and Morsell, in reference to his being a thief; to which the defendant, by his counsel, objected, on the ground that the matter inquired about was in no way brought out in the examination-in-chief, and related entirely to new matter; but the justice trying the case overruled the objection, and the defendant testified, in answer to the question, that he had spoken about the plaintiff, but did not recollect of calling him a thief, as charged against him, and did not pay the money as a bribe.</p> <p>The testimony being all' in, the plaintiff requested the court to instruct the jury as follows :</p> <p>1st. If the jury find from the evidence the fact alleged in the declaration, and further find that by the words and conduct of the defendant the plaintiff was prevented from obtaining employment that he otherwise might have obtained, then the plaintiff is entitled to special damages.</p> <p>2d. If the jury find from all the evidence in the case the fact alleged in the declaration, and that the plaintiff is entitled thereby to recover a verdict, then, in fixing the measure of damage, they have a right to take into consideration the nature of the accusation, to what extent it was calculated to affect the reputation and standing of the plaintiff, and the pecuniary condition of the defendant.</p> <p>The defendant’s counsel objected, but the objection was overruled by the judge, and the instructions given, which constitute the second exception.</p> <p>The jury returned a verdict in favor of the plaintiff for the sum of-dollars.</p> <p>A motion was made to set aside the verdict and for a new trial, which was denied, and the casé is now here upon the foregoing exceptions.</p>

This was an action of trespass for mesne profits, commenced March 11, 1871. On the trial of the cause before the chief-justice, the plaintiff read in evidence the record of a final judgment in an action of ejectment recovered by plaintiff’s testator against the defendant in this court on the 21th day of April, 1872.

This was a motion to dismiss, on the ground that no appeal lies in a case of this kind. The facts upon which the motion is made are found in the record, from which it appears that the will of the late John Keefe was filed in the office of the register of wills, March 24, 1874.

<p>STATEMENT OE THE CASE.</p> <p>This was an action on a receiver’s bond given by William J. Donohue and his sureties, Harriet Donohue and Francis H. Finley, and dated on the 8th day of January, 1873. The condition of the bond was in the following language':</p> <p>“Whereas the above-named William J. Donohue hath been duly appointed by the supreme court of the District of Columbia, sitting as a court of equity, as receiver to collect the rent of the property in the cause of Sanborn & King vs. O’Donohue, No. 2748: Now, the condition of the above obligation is such, that if the above-bounden William J. Donohue do and shall well and faithfully, in accordance with law, perform the trusts named in this bond, then the above obligation to be void; it is otherwise- to be and remain in full force and virtue.”</p> <p>The declaration describes the bond according to its legal effect, and after stating the fact that the said William J. Donohue, as such receiver, collected rents to the amount of $1,160, proceeds to allege the breach of said condition, as follows:</p> <p>“And afterward, to wit, on the 14th day of July, 1874, the said court passed a decree in the said cause No. 2748, in which the said William J. Donohue was ordered by the said court to pay into court the money so received by him, as such receiver, on or before the first day of August, 1874, and that the said money be thereupon paid over to the said San-born & King; but that the said William J. Donohue did not pay the. said money nor any part thereof into court, and has hitherto refused, and still refuses, to pay the same or any part of said money into court, though often thereunto requested, but has paid $25 for repairs, &c., and $100 of said money to the attorney for the said Sanborn" & King, and the plaintiffs claim the balance, to wit, $1,035, and interest thereon from the 15th of July, 1874, and costs of this suit.”</p> <p>The defendants, after oyer of the bond and its condition, demur to the declaration on the grounds—</p> <p>1st- Because the said declaration does not set forth or allege any breach of the said writing obligatory o r the condition thereof, above set forth.</p> <p>2d. Because there is a variance between the condition of said writing -obligatory as set forth in said declaration, and the writing obligatory and the true condition thereof, as set forth above.</p> <p>The case is now before the general term on the decision of the court below overruling the demurrer.</p>

This was a bill of complaint to set aside a release of a trust-deed upon real estate.

This is a suit for the partition or sale of part of lot of land No. 11, in square 464, in the city of Washington, and also for the cancellation of a deed to be described presently. The bill of complaint sets out a copy of the will of the late George Milburn, and the clauses which are in controversy read as follows: First.

The bill was filed in this case by the complainants, who are devisees under the will of William A. Bradley, late of the District of Columbia, to vacate and set aside a deed from A. Thomas Bradley, surviving executor under the same will, to Mark Young, one of the defendants, and also to set aside and declare null and void conveyances from the latter to Frederick W. Jones and Walter S. Cox; and the prayer of the bill is further that complainants may be decreed to be entitled…

<p>I. Where a party to an agreement for a conveyance of real estate requests the deed to be made to a person not named in the agreement, and accordingly the conveyance is made to such person, who refuses it on. the ground that there is an outstanding trust-deed, and that he will not take the title thus embarrassed, no further tender is required on the part of the owner after such refusal.</p> <p>II. Where the trustee in such deed is dead, and the debt secured by the incumbrance has been paid, and the deed of trust has been released by the heirs at law of the trustee, the owner can make a good conveyance of the property, in pursuance of a contract to give a clear title, without going into a court of equity.</p>

<p>I. A joinder in a demurrer to a declaration produces an issue of law, and tlie practice in regard to noticing it for trial, and entering it upon the calendar, is the same as in cases in which there is an issue of fact.</p> <p>II. Where there is an issue of fact as well as of law, one notice will he sufficient, if the canse is regularly placed upon the calendar.</p> <p>III. A plea of the statute of limitations is now regarded with the same respect as other legal defenses, and where the defendant has demurred to a declaration, and the demurrer overruled, and leave granted to plead “as advised,” and a plea of the statute is accordingly filed, it is irregular to strike it out upon affidavits that plaintiff has a. good cause of action.</p>

The testimony was voluminous and contradictory on the question of insanity, and the court in general term held that the chancellor might properly rely upon the verdict of the jury in favor of sanity, as the evidence was conflicting in its character.

This action was brought to recover the sum. of $3,599,. which the plaintiff claimed to have deposited in the bank of the defendant. The cause was tried by consent before the chief-justice without a jury. The facts proved at the trial appear to be as follows : On the 19th of September, 1873, the plaintiff, residing and doing business in Washington, D. C., had on deposit in the. Washington City Savings-Bank the sum of $3,599.

Motion to dismiss appeal. The suit was brought to recover among other things, certain certificates of award made by the late Venezuelan commission, amounting at par to $25,000.

The bill in this ease states that, on the 29th of September, 1S64, Joseph K. Brick purchased through his brother, Samuel R. Brick, two hundred and fifty shares of Washington Gas-Light Company Stock, and paid therefor five thousand two hundred and fifty dollars; that, on the 6th day of October, 1864, a certificate for the said shares of stock was regularly issued to him; that the widow of the said Joseph K. Brick, who is one of the plaintiffs, personally knows that the…

The plaintiffs are attorneys at law, and bring this action to recover the amount of a contingent fee for prosecuting a claim against the Government in pursuance of an agreement with defendants to pay them twenty-five per cent, of the sum which they might collect. The contract is in writing, and is set forth in the opinion of the court.

This cause is brought to recover damages sustained by the plaintiff by reason of a personaL injury sustained by him while.passing over or across a freight-train of the defendant at or near the intersection of Maryland avenue and Ninth, street, in the city of Washington.

STATEMENT OF THE CASE Bill to quiet title upon the following state of facts: On the 1st of June, 1867, John O. Evans conveyed to the defendant, Moses Kelly, three snblots in square 247, in the city of Washington, in trust for Jane Thompson, wife of defendant, J. Harry Thompson.

<p>The facts necessary to understand the case appear in the opinion of the court.</p>

<p>3. A married woman is bound by a contract which her husband has entered into on her behalf for improvements upon her separate estate, he having acted as her agent, and with her knowledge and consent, and she having accepted the benefits resulting from the performance of such contract.</p> <p>II. A motion for judgment ought to be sustained upon an award which has been filed more than seven days in the cause, and no exceptions filed.</p> <p>III. Evidence offered by the dofendant for the purpose of showing that plaintiff had done inferior and defective work of a similar kind on the house of another person was properly rejected by the referee.</p>

<p>I. Three prayers, granted at the request of one of the parties, relating to the same matter, should be considered together as a whole, and regarded as the instruction of the court to the jury.</p> <p>II. Where an incompetent question' put to a witness is allowed to be an- • swerod, subject to the objections of the other side, but before the cause was submitted to the jury the judge instructed the jury to lay aside and disregard the testimony so objected to, the error was cured by such directions.</p> <p>III. It is competent to prove, on a question of the sanity of a testator, tha his father, mother, or perhaps his ancestors in a more remote degree, were of unsound mind, by the evidence of a person speaking from his own personal knowledge and observation, but not by tradition or hearsay testimony.</p>

This case was before tbe court at a previous term, and it was then determiued that tbe defendant was liable to tbe plaintiff for a personal injury produced by tbe carelessness of its agents in running a train of ears tbrougb tbe city of Washington on tbe track of another company. 1 MacAr., 285.

Moritz Augenstein filed his petition as a voluntary bankrupt on the 5th day of September, 1872. He was subsequently adjudged a bankrupt, an assignee appointed, and on the 26th day of November he received his discharge. In May, 1874, Philip Montegriffo, a judgment creditor of the bankrupt, filed a petition to set aside the discharge as having been obtained by fraud on the part of Augenstein, the grounds of fraud being fully set forth in the petition.

<p>I. An agreement in writing cannot be contradicted in its legal effect, where the contract is clear in its terms, by a contemporaneous oral agreement tending to show that the written agreement was not the agreement of the parties.</p> <p>II. It is inadmissible to show by parol that a promissory note was not to be paid in money. Such evidence clearly contradicts the legal terms-of the written agreement.</p> <p>III. The rule which excludes parol evi dence from contradicting a written, contract is based upon the principle that parties express their meaning when they execute a written instrument.</p>

<p>The case is stated in the opinion of the court.</p>

The declaration states in substance that the defendants, -•about the 25th of September, 1873, agreed, in consideration that the plaintiff would furnish certain apparatus and superintend the mixing materials for a pavement, known as the Scharff pavement, and would superintend the laying of such pavement on Fifth street, from G to New York avenue, for the laying of which the defendants had a contract from the board of public works, the defendants would pay him, plaintiff, the…

<p>The case is stated in the opinion of the court.</p>

The complainant brings this action to compel the surrender to her of an unrecorded deed of real estate situate in the city of Washington. A brief statement will show the material point in the case. Walter Lenox, deceased, during his life-time being seized of said real property, on the 21st day of July, 1873, executed and delivered to complainant a deed in fee-simple for the same, which she neglected to record for some time.

This cause comes here on an appeal by the complainant from a decree dismissing his bill. The complainant, in November, 1870, made and delivered to the defendant Condon five promissory notes, each for the sum of $1,800, payable in one, two, three, four, and five-years after date, and secured the payment thereof by deed, of trust upon real estate situate in the city of Washington. The defendants Ward and Ennis were the trustees named in the deed.

<p>STATEMENT OE THE CASE.</p> <p>One May hew, the owner of lot 50, in square 204, in Washington City, D. C., executed a deed of trust thereon, to secure a debt to the Connecticut General Life-Insurance Company. He afterward executed another deed of trust to Daniel L. Eaton, to secure a note for $1,000, payable to the order of the defendant, Bigelow; this note was purchased by the plaintiff after maturity for $950. The lot subsequently became the property of Bigelow.</p> <p>On the 16th day of June, 1873, Bigelow filed a bill on the equity side of this court against the plaintiff and others, alleging, among other things, that said note passed into the hands of the plaintiff, who was then the holder thereof; that it had been fully paid and satisfied; that, subsequent to the execution and delivery of the trust-deed given to secure it, the trustee had died; and that, for the purpose of obtaining a release, it was necessary to have a new trustee appointed by the court. On the 7th day of July, 1873, the plaintiff filed his answer, admitting the allegations of the bill to be true, and on the 14th day of October, 1873, a decree was passed appointing Mr. T. A. Lambert trustee in the place and stead of Eaton, with directions to execute a release as prayed.</p> <p>On the 28th day of July, 1873, George Mattingly, one of the defendants, loaned Bigelow $2,0(J0, for which he gave his note, and, to secure its payment, he, on the same day, executed and delivered a deed of trust on said lot; the trust-deed was recorded July 31,1873. This loan was made upon the.representations of Bigelow that the only incumbr anee then existing on the property was the debt to said insurance company; and upon a certificate of title to that effect this $2,000 note afterward passed into the hands of the defendants, Hitz, Warner, and Edwards, by voluntary assignment from Mat-tingly, for the benefit of his creditors, and has not been paid.</p> <p>By a decree passed in this court February 5, 1874, in a cause between the said Jonathan G-. Bigelow, complainant, and the Connecticut General Life-Insurance Company, et al., defendants, the said Life-Insurance Company being the holder of the promissory notes secured by the first deed of trust on said property, the said lot was directed to be sold, and the residue of the proceeds, after discharging the indebtedness secured by said first deed of trust, to be applied in satisfaction of the notes secured subsequently thereto. The amount of the proeeeds of said sale, as reported by the trustees appointed to sell, were $5,775; the net proceeds of said sale, as found by the auditor, $5,402.26 ; and the indebtedness secured by said first deed of trust, w-ith interest, was $4,967.61, leaving a residue of $434,85, which the auditor, in his report upon the distribution of the proceeds of sale, has awarded to .the assignees of George Mattingly.</p> <p>The plaintiff, Staats, appeared before the auditor and claimed this balance, on the ground that Bigelow had fraudulently procured his answer admitting the payment of the-note held by him, and that only a portion of it had been paid, leaving $557.11 still due. The auditor, however, distributed said balance to Mattingly’s assignees, it having been proved that Mattingly knew nothing of the fraud claimed by Staats to have been perpetrated on him by Bigelow when Mattingly made said loan, and, moreover, the decree for a release was in full force.</p> <p>By stipulation, it was agreed that the confirmation of the auditor’s report on the distribution of this balance should await the result of the present suit, which has been instituted by Staats to vacate the decree directing the release as aforesaid, and to restore to him his rights under the trust-deed executed by Mayhew to Eaton.</p> <p>It appearing at the hearing of this cause before Mr. Justice Wylie, holding the special term, that the answer of ,Staats, admitting the payment of the $1,000 note held by him, was filed on the 7th day of July, 1873; that the loan to Bigelow by Mattingly was made subsequent to the filing of said answer, without knowledge of the fraud by Bigelow, now set up by Staats, a decree was passed confirming the auditor’s report, which was adverse to the plaintiff’s claim to said fund. From this decree the plaintiff appealed.</p>

<p>I. A promissory note actually made and signed in the city of Washington, but dated at Leavenworth, in the State of Kansas, and sent to the Second National Bank of Leavenworth, and by it discounted, is to be governed as respects a question of usury by the laws of Kansas.</p> <p>II. To take out interest in advance on discounting a note by a bank is not usurious.</p> <p>III. A contract for a loan of money at a rate of interest which is legal in the place where the contract is made, though the money is to be repaid in a State where the rate of interest is lower, is not usurious, provided it be not a mere device to evade the laws of the State where the money is to be repaid.</p>

The bill sets forth that in the district court of the United.

The bill in this case was filed in 1857, to obtain a sale of lot 4, in square 290, in the city of Washington, and for distri- ’ bution of the proceeds according to the rights and interests of the parties. The lot had previously been owned by James Larned and Albert G. Gardiner, as tenants in common, and they had agreed upon a division thereof, but Larned having died, the partition was not carried out.

<p>STATEMENT OE THE CASE.</p> <p>The action is brought by the plaintiff, who is an attorney at law, to recover the amount of a contingent fee upon the following agreements.</p> <p>“ This agreement, made between Mrs. Jane C. Faekler, of Danville, Boyle County, State of Kentucky, of the first part, and S. G. Burbridge, of Covington, Ky., of the second part, witnesseth: That the party of the first part employs the party of the second part as her attorney to collect a claim against the United States for Q. M. stores, as per claim} amount $7,527.00, and in consideration of the services of the party of the second part, the party of the first part hereby agrees to pay the party of the second part an amount equal to one-half of whatever sum of money may be collected from the United States on said claim.</p> <p>“ Dated this 10th day of October, 1871.</p> <p>“ JANE C. FACKLER. [l. s.]</p> <p>. “ W. A. Harness.”</p> <p>“ This agreement, made between Mrs. Jane C. Faekler, of Danville, State of Kentucky, of the first part, and S. G. Bur-bridge, of Covington, Ky., of the second part, witnesseth: That the party of the first part employs the party of the second part as her attorney to collect a claim against the United States for quartermaster’s stores, as per claim, amount $1,150.00, and in consideration of the services of the party of the second part, the party of the first part hereby agrees to pay the party of the second part an amount equal to one-half of whatever sum of money may be collected from the United States on said claim.</p> <p>“ Dated this-day of-, 187 — .</p> <p>“ JANE C.- FACKLER. [l. s.]</p> <p>“ W. A. Harness.”</p> <p>Upon the trial of the cause the agreements were admitted by counsel for defense to have been executed and delivered by the defendant to the plaintiff, and they were read as evidence to the jury, but subsequently the justice ordered the agreements to be withdrawn as evidence, and instructed the jury to find for the 'defendant, on the ground that it is against public policy to enforce such agreements; whereupon the counsel for the plaintiff made his exception.</p> <p>This ruling of the justice who tried the cause is the only point to be determined by this court.</p>

This action was against defendant as surety upon an undertaking given for the release of a mechanic’s lien. The lien of mechanics for labor and materials used in the construction of buildings is provided for by chapter 20 of the Bevised Statutes for this District.

The facts apparently established by the testimony are substantially these: In the month of August, 1871, the complainant entered into an agreement with the defendant Gilbert to erect six dwelling-houses on certain lots in the city of Washington, for which he was to be paid the sum of $32,000. On the 23d day of May, the complainant filed in the clerk’s office a notice of his intention to hold a lien on the property for labor and materials of the value of $27,540.00.

The complainant seeks by his bill to obtain a release of a certain deed of trust upon lot 5, in square 763, in the city of Washington.

<p>The plea is, not guilty.</p>

This was an action commenced before a justice of the peace, under chapter 19 of the Revised Statutes of this District, in regard to landlord and tenant. The plaintiff complained that certain tenements and premises known as No. 1540 Ninth street, in the city of Washington, were unlawfully detained from her by the defendant, whose estate as tenant therein had been determined by a notice to quit, in writing, of thirty days.

This was a suit in replevin, brought by John Danby, the plaintiff, against Alexander Sharp, the United States mar. shal for the District of Columbia, to regain possession of certain goods an d chattels, to wit, twenty-five sewing-machines, of the value of $1,000, alleged to have been illegally taken in execution by the said marshal in satisfaction of a judgment in which Willett & Libbey were plaintiffs and P. H. Welch defendant. 1st. If the jury find from the testimony that…

The confederate cruiser Florida was captured on the morning of the 7th of October, 1864, by the United States war-steamer Wachusett, Commander Collins, under the following circumstances : The Florida, being in the bay of San Salvador, and within the port of Bahia, was placed under the protection of the guns of the Brazilian corvette D. Jaunana, and her presence there was the subject of official correspondence between the United States consul and the Brazilian government, and…

The cause of action is set forth in the statement- of facts agreed upon by the parties, as follows: Julia A. Kelly died in the city of Washington in the year 1866, leaving the following paper as her last will and testament.

<p>STATEMENT OE THE CASE.</p> <p>This case came here upon an appeal from a decree made at the special term dismissing a suit in equity.</p> <p>It appears that, on the 26th day of February, 1873, the defendant conveyed a tract of land, consisting of 640 acres, in the county of Leelenaw, Michigan, to the complainant, at the price of $5 per acre, and that he paid $700 in cash, and gave his five promissory notes, for $500 each, to the order of the defendant, at one; two, three, four, and five years; that he has paid one of said notes and interest on the others, amounting to $160. The deed of conveyance contained a covenant to warrant and defend the premises from all claims of persons claiming the same under or through the grantors. The bill prays that this conveyance may be set aside, and defendant decreed to repay the sums which he received therefor, and deliver up the notes given for the balance of the unpaid purchase-money. The bill of complaint alleges that defendant represented that he was the owner of said lands in fee-simple, that they were free and clear of all taxes and other incumbrances and that he had a good right to convey them, and that, relying wholly upon his representation, the complainant purchased, as already stated. It is then stated that the defendant was not the owner of said lands, nor were they free from taxes and incumbrances, nor did the defendant convey a good title; but, on the contrary, the lands, were originally subject to entry only by Indians; and one. Francis S. Blackman, an Indian, had entered them in the Land-Office, and in 1806 conveyed them all, except eighty acres, to different persons, whose deeds had been recorded in Leelenaw County, so that the lands were owned by such persons and largely in their possession at the date of said conveyance to complainant, and most of said lands had been sold for taxes each year from 1869 to 1873. It is further alleged that the certificates of location of said lands were handed by Blackman to one Beuben Goodrich, of Michigan, and by him brought to Washington for the purpose of procuring patents, and Goodrich left them with one O. H. Holden for the same purpose. In October, 1869, the defendant received them from Holden as collateral security for money loaned him. At that time there was on the back of each certificate what purported to be a written assignment by Blackman, under seal, with the name of the assignee in blank, purporting to convey the lands named therein. The defendant, while holding said certificates as collateral security, wrongfully, unlawfully, and without authority, wrote his own name in said blanks, as assignee or grantee, and on July 17, 1872, wrongfully and unlawfully procured United States patents to issue to him; but said pretended assignments are void, and passed no title in the lands to the defendant, and ■were never recorded in Leelenaw County; that, in June, 1872, a United States patent for forty acres of said lands had issued to one Adison Ah-go-sa, an Indian, upon his location and entry, and in January, 1873, he had conveyed the same to one V. C. Miller by deed recorded in Leelenaw County on the same day, and the defendant did not and could not convey to the plaintiff any title thereto.</p> <p>- The bill then charges that the defendant knew that his representations were false, and that he made them with the deliberate purpose to deceive and defraud the complainant, or he made them under a gross mistake as to facts.</p> <p>The answer denies all fraud, misrepresentation, or mistake in general and in particular, and says that, on the 7th of January, 1870, the defendant purchased the certificates of location of C. H. Holden, without notice or reason to suspect the integrity of his title to them, and July 25, 1872, received patents for the land; that Blackman indorsed his name and affixed his seal on the back of the certificates, and transferred and delivered them to Goodrich, who transferred and delivered them to Holden, to enable him to sell and transfer them, and to enable the holder to fill his own name in the blanks and obtain the patents; that such is the usage of the General Land-Office; and plaintiff believes that the patents conferred a good title upon him.</p> <p>That the plaintiff came to the defendant and inquired about ihe location and price of the lands, and defendant responded as well as he could in regard to their location, and gave him the price; said he had never seen them, but would furnish the plaintiff a map and any other papers relating to them, and did furnish him with a map and the patents, and explained from whom and how he had obtained the certificates, and informing him that the certificates had been suspended for years on account of irregularity and fraud; that he might take the papers and make inquiry; and he took them and held the matter under advisement for more than two months, during which time they discussed questions relating to the lands, and defendant told plaintiff that he knew all that he did on the subject; and finally plaintiff came to defendant and made the purchase.</p> <p>The answer further alleges that the defendant has no information as to the sale of the lands for faxes, or as to the patent of 40 acres to Ah-go-sa, or as to the conveyances by Blackman and his grantees, or as to their being in possession, other than that furnished by the bill and exhibits.</p> <p>It says that defendant has no knowledge that Blackman gave the certificates to Goodrich and Goodrich gave them to Holden simply to get patents on them, and denies that such' was the fact, but admits that the certificates were originally delivered by Holden to the defendant as collateral security for a loan, and that the loan was paid, and says that the defendant afterward purchased them of Holden for $2,000, and filled his own name in the blank assignments at the instance and in the presence of Holden; and admits that the assignments were never recorded in the county in which the lands lie.</p> <p>The answer further says that both plaintiff and defendant relied solely upon the patents, and that the plaintiff did not put his complaint about the sale on any misrepresentations of the defendant, but on some supposed defect in the title, until July 10,1874, when he addressed the defendant in writing, and set up substantially the same grounds of complaint as in his bill; and denies that the defendant agreed to rescind the sale and take a reconveyance of the lands.</p> <p>It alleges that, in March, 1873, the defendant indorsed and delivered the notes to his father, Curlys Lyon, for and on account of a debt due him by defendant of a greater amount than the notes. That plaintiff has not had the patents recorded, or paid taxes on the lands, or otherwise protected them, so that defendant cannot be placed in the same condition as he was at the time of said sale.</p> <p>It will be seen by this statement of the pleadings that one of the material grounds relied upon for relief is the alleged falsehood of certain representations made by the defendant at the time of the sale as to there being no taxes on the lands -or other matter affecting the title. Read the following extract from the complainant’s deposition:</p> <p>“In the summer of 1872, I 'was informed by Mr. T. E. Chandler that Isaac S. Lyon had certain lands in Michigan, and had spoken to him about getting him a customer for the lauds and about their location. Afterward I said to Lyon that I understood he had lands for sale in Michigan. He told me that he had such lands; that they were located about Grand Traverse Bay, and he wanted to know if I knew anything about lands in that country. I told him I didn’t know anything particularly about them, but that I had heard it favorably spoken of; had known of some settlers going to that portion of the country. I told him I had gone up the lakes in 1866 in a steamer, which touched at Northport, on Grand Traverse Bay, and that I supposed that was near the location of the lands. In a subsequent conversation, Mr. Lyon told me that he had got the certificates for the lands, and United States patents were issued directly to him. He said that' the patent from the United States was the foundation of the title, and in searching a title it was never necessary to go hack of a United States patent. He said that in this district when they traced the title up to the United States that was the end of the search. He said that the lands were located by an Indian; that the lands were situated in- an Indian reservation, and that under the treaty with the United States the lands were subject to entry by Indians only. He said that the lands had been entered some time ago; that the entry had been suspended by the Land-Office for the reason that the Indian-Office had preferred some charges of fraud in regard to the entry of the lands, but that as to these lands for which he had patents the charges had. been removed, and the patents had been issued under the authority of an act of Congress. He said that previous to the issue of the patents the land belonged to the United States; .that it was Government land; that no State had a right to tax Government lands, therefore there could be no tax upon the lands previous to 1872, the date when the patent was issued. He remarked that he must write up to Michigan and ascertain if there had been any taxes assessed for the year 1872. This occurred in conversations while we were negotiating about the purchase of the lands. He said that he could make good use of the-money, and that he would rather have the money than the land, although he considered the lands were a good investment. He said he would place the papers in my hands, and I could go to the Land-Office and ascertain that the issue of the patents was regular and everything was all right.”</p> <p>The following is extracted from the testimony of the defendant, Lyon:</p> <p>“ Some two or three months previous to consummating the sale of the lauds described in the complainant’s bill to Mr. Sanders he called on me in my room at the Patent-Office, and stated that he had heard I had some Michigan land for sale, and inquired where it was situated, how much there was of it, and what I asked per acre, &c. I described its location as best I could, stated the quantity, and gave the price as $5 per acre. I told Mr. Sanders that I had at my house a map of these lands, prepared at the General Laud-Office, showing .specific location, quality of soil, and whether generally timbered or not. Also the patents issued to me by the United States for these lands; also other papers bearing upon the subject which I would produce upon his next call. A day or two after that he called again upon me concerning these lands, and, according to promise, I showed him the map of this land prepared at the General Land-Office; also my United States patent for those lands; also a certificate of location similar to those on which I had secured United States patents ; also the act of Congress authorizing patents to issue upon those certificates. The certificate of location which I showed him was like that contained in Mr. Sanders’s exemplification of patents. I explained from whom I got the original certificates of location of these lands; referred him to Mr. Holden, the person named; explained also how I got them; when I got them; how long I had held them; explained, also,-that upon certificates similar to the one shown, I had procured United States patents; explained also that these certificates had been suspended for a num; ber of years by the General Land-Office on account of some supposed fraud connected with the location of these certificates. It was then more than seven years since these lands were first located. I stated that I had had considerable difficulty in securing the patents upon these lands; but that Congress finally passed an act authorizing patents to be issued to the holders of these certificates. I stated to Mr. Sanders at that interview that I had. never seen these lands; that I knew nothing about them except from the papers presented, but that I had caused letters to be sent to a party in the vicinity of these lands, inquiring as to their value, situation, occupancy, taxes, &c., and that one letter had been received in answer, which was in his friend Chandler’s possession, and that another and fuller answer was expected daily. In fact, I told him all I knew; not a single fact known to me was concealed. At that time my United States patents for these lands had not been recorded in Michigan.</p> <p>“ Question. Did you make any representation to him as to the quality, condition, and character of these lands or in reference to the taxes due upon them.</p> <p>“Answer. I did not. I told Mr. Sauders at this interview to take all the papers, investigate fully every particular connected with these lands, and when he was willing to pay $5 per acre to come forward and conclude the arrangements. I told him that these lands stood- me in that price, and that price I must have now or at some future tíme. I told him that if he, upon investigation, found these lands more valuable — worth as much as $20 per acre — he could have them for •85 per acre, and if he, upon investigation, found these lands worth nothing at all, still my price was $5 per acre, as I would rather have the money than wild lands. Mr. Sanders took all the papers away with him at this second interview, and, with the exception of the certificate of location shown him, he has retained the papers ever since. Among the papers thus retained by him were my United States patents ■for these lands, which have never been recorded in Michigan, but which Mr. .Sanders, upon his purchase of these lands, promised to get recorded, but which he has never done.</p> <p>“After this Mr. Sanders would frequently call upon me at my room and talk about these lands. At these interviews we discussed almost every imaginary possibility connected with them j the possibility of their being under water; in a •swamp; on a hill-top; occupied by a squatter, or some one claiming title; the possibility of their having been sold for taxes. Tet, connected with the mention of every one of these •subjects, I invariably and emphatically stated that he must investigate and satisfy himself upon all these points; that I ■did not know a thing about them. I referred him to Mr. Holden, from whom 1 purchased the original certificates of location, for information at the other end of the line. I told Mr. Sanders to take his time; that I was in no haste to sell. As a consequence, he dallied along for two or three months, sometimes appearing as if he intended to purchase, and at ■other times appearing indifferent. Finally, Mr. Sanders expressed himself satisfied with the lands as they stood and the price, although he said he ran considerable risk in making the purchase, and the sale was finally consummated.”</p> <p>This is the substance of the testimony of the parties on the •subject of representations. There were no other witnesses to their negotiations, and the other evidence in the case does mot materially affect the foregoing extracts.</p> <p>The case was heard at special tern and a decree passed ■dismissing the bill, from which decree the complainant has taken this appeal.</p>

<p>■STATEMENT OP THE CASE.</p> <p>The bill alleges that, on or about the 18th day of July, 1871, the defendant William G. W. Jaeger executed and delivered to the plaintiff his promissory note for $50,000, payable twelve months after date, and at the same time executed and delivered to Charles Deffenbach a deed of trust upon a certain tract of land in the county of McDowell, in the State of West Virginia, and said to contain one hundred and fifty thousand acres of land. A copy of the deed is made an exhibit to the bill, and it was made for the purpose of securing the payment of the note at maturity. Jaeger’s title to the land was derived from the defendant Antonio Pelletier on the 29th day of July, 1868.</p> <p>That said Jaeger, on said last-mentioned day, executed and delivered to Pelletier four promissory notes, for the sum of '$5,000 each, payable respectively in three, five, seven, and ten years from date, and at the same time executed and delivered to one Franklin Mace a deed of trust to secure to the said Pelletier the payment of said notes at maturity; that these notes came into the hands -of the complainant; that, subsequently to these transactions, it was discovered that certain outstanding titles to the property, which at the time of the transfers above mentioned were supposed to be worthless, or at most light clouds upon the title derived from Pelletier, were in point of fact superior to the Pelletier title, and that the title derived by Jaeger from Pelletier, and by complainant from Jaeger, was fatally defective unless those outstanding titles could be secured.</p> <p>< These outstanding titles arose upon the following facts : The patent for the lands was obtained by one Robert Pollard, in the year 1795, from the State of Virginia, and the title thus acquired was finally conveyed to one Henry G. Thompson in the year 1865. In the mean time the land had been sold for taxes and the tax-title was at last lodged in a person by the name of Chitty, who executed a conveyance to Pelletier, which conveyance was afterward set aside by a decree of the equity court for said McDowell County, in September, 1853. A mortgage upon said lands had been executed by Chitty to N. W. L. and H. Mali, which was foreclosed in 1853, and the land bought in by the mortgagees at the foreclosure sale, so that, at the time of the trust-deed to secure complainant’s debt, the original title was in Thompson and the tax-title in the Malis.</p> <p>The bill then alleges that the defendant, William G. W. Jaeger, having knowledge of all these faces, for the purpose of cheating and defrauding the complainant out of the debt secured by the deed of trust first above mentioned, purchased the title of Mali, through the defendant Thomas D. Winchester j that he, on the 3d day of April, 1872, caused the same to be conveyed to said Winchester, who well knew the facts and also the fraudulent purpose of said Jaeger.</p> <p>The bill further alleges that, with a like purpose in view, the said Jaeger, on or about the 3d day of April, 1872, purchased of Henry S. Thompson all his right, title, and interest in said tract of land, and had the conveyance made to his son, the defendant Wm. R. Jaeger, and that his said son was aware of all the facts and of the said purpose; that afterward the said Wm. G-. W. Jaeger, confederating with said defendants Wm. B. Jaeger and Thomas D. Winchester, in order further to complicate the case and to defraud the plaintiff of his just rights, procured the said defendant Winchester to convey the said tract of land to Wm. E. Jaeger, (the son,) and the said Wm. E. Jaeger to mortgage said land to said Winchester for the sum of §30,000, which last conveyance was without consideration, except as to about §1,600, which the said Wm. Gr. W. Jaeger had borrowed from said Winchester to purchase the outstanding titles before mentioned ; and further that, on or about the 30th day of December, 1872, the said Wm. Gr. W. Jaeger and Wm. E. Jaeger, further confederating with one Alfred J. Ullman, of the city of Baltimore, did convey to the said Ullman an undivided one-fourth part of all said tract of land, and that said Ullman, at the time of the said conveyance, had full knowledge of all the facts in the bill before mentioned, and the object of said conveyance being to cheat and defraud said plaintiff out of his just and equitable rights,</p> <p>The defendant Jaeger, in his answer, alleges that, at the time of executing his promissory note to the plaintiff for §50,000, and the deed of trust to Diffenbach to secure the same, he was indebted to the complainant in the sum of §10,000 and no more, and that the deed and note were given to secure that sum and future advances agreed to be made by the plaintiff.</p> <p>He then denies all charges of combination with the other defendants or any intention to cheat and defraud plaintiff, as charged in the bill.</p> <p>The defendants William B. Jaeger, Thomas D. Winchester, and Alfred J. Ullman, each answering for himself, deny all combination with William Gr. W. Jaeger, as charged in the bill, and all knowledge of his intention to cheat and defraud the plaintiff as charged, and each claims that his dealings in regard to said land were in good faith, and his purchase bona fide and for a valuable consideration.</p> <p>The testimony in the case is contained in a bound volume of over two hundred pages, the principal part of which is directed to the question of fraud. The complainant examined a number of witnesses, whose testimony tended to support the allegations of the bill, and the defendants Jaeger and Ullinan introduced evidence in support of their answers. The actual amount of indebtedness due from Jaeger to complainant was not discussed, as that matter had been referred to the auditor at the special term. It will be seen that after a careful consideration of the pleadings and proofs the court decided the question of fraud as a fact in favor of the complainant. It would occupy too much space to give in detail the testimony in this statement.</p>

Rule 73 of this court provides that a plaintiff who shall file with his declaration, at the time of bringing his action, •an affidavit, setting out distinctly his cause of action, &c., and shall serve the defendant with copies of the declaration and affidavit, shall have judgment, unless the defendant shall file along with his plea or pleas an affidavit denying the right of plaintiff to recover, and specifically stating the grounds of his defense, &c. In this case the…

The stipulated facts in this case show that the complainant, acting as trustee, and under an order of the court, and in pursuance of an advertisement, sold at public sale, to Alfred M. Hoyt, square 720, in the city of Washington, for the sum of $22,010, he being the highest and best bidder therefor.

<p>I. A notice of a mechanic’s lien signed -with a copartnership name, instead'of with the individual names of the partners, is not invalid for that reason.</p> <p>II. A mechanic’s lien for materials furnished upon a joint contract with a copartnership will bind the interest of one of such parties who alone has title to the real estate upon which the building was erected.</p> <p>III. The mere transfer of a promissory note to the material-man will not release his lien, unless the same is paid at maturity, or unless it is taken in payment of the account.</p> <p>IV. The lien is not invalid, although it does not cover all the land connected with the building to which the owner has a title-deed.</p>

<p>STATEMENT OF THE CASE.</p> <p>The third section of the act of Congress incorporating the Freedman’s Savings and Trust Company provides as follows: “That the business of the corporation shall be managed and directed by the board of trustees, who shall elect from their number a president and two vice-presidents, and may appoint such other officers as they may see fit; nine of the trustees, of whom the president, or one of the vice-presidents, shall be one, shall form a quorum for the transaction of business at any regular or adjourned meeting of the board of trustees; and the affirmative vote of at least seven members of the board shall be requisite in making any order for on authorizing the investment of any moneys, or the sale or transfer of any stock or securities, belonging to the corporation, or the appointment of any officer receiving any salary therefrom.” One of the by-laws adopted by the trustees provides, that “ no securities belonging to the company sli all be sold or transferred, except as authorized by a vote of the finance committee, duly recorded, in which at least three members of the committee shall concur.”</p> <p>The facts to be gathered from the pleadings and the testimony are substantially as follows:</p> <p>When the great excitement in monetary affairs began in September, 1873, the Freedman’s Savings and Trust Company owned and held among its securities two promissory notes, secured by deeds of trust on real estate in the city of Washington. One of these notes was made by Juan Boyle, for the sum of $2,590, dated July 31, 1871, and was payable to the said company one year after date. The other bore date on the 27th of July, 1871, and was made by Ann E. Boyle and others, for the sum of $8,000, payable, with interest at ten per cent., to the said company, one year after date. In the month of November, 1873, the president and actuary of the corporation, feeling embarrassed for means with which to meet the demands of the depositors of the institution, entered into an arrangement with the defendant, by which they borrowed from him the sum of $10,000. For the use of this money if was agreed that he should be paid interest by the corporation at the rate of two or two and one-half per cent, per month. As an evidence of this loan, they assumed to make or indorse, in the name of the corporation, a promissory note, and deliver it to the defendant. To secure the payment of the note, they took from the securities of the trust company about forty of the certificates issued by the board of public works of this District, commonly called eight per cent, improvement bonds, of the par value of $20,009.</p> <p>There was no special resolution of the board of trustees authorizing the actuary or president to negotiate this transaction. It appears to have been the practice of those officers to receive payment of money due the bank on loans, and in transferring the District bonds as security for the loan by Lanahan, the actuary proceeded according to the usage of the bank from the time it was organized. It also appears that a paper had been delivered to Lanahan, signed by the president, under the seal of the company, stating that the secretary had authority to indorse and give notes on behalf of the bank. The negotiation with Lanahan was conducted on the part of the bank by the defendant Juan Boyle, who had also large transactions on his own account with the bank as well as with Lanahan. When the note matured, it was arranged that Lanahan should return the said note for $10,000 and also the improvement bonds which he held as collateral security, and that the officers of the company should pay the same, by delivering over to the defendant two secured notes first above mentioned held by the company, and which are the notes now in controversy, amounting in principal- and interest to the sum of $11,314.44. The difference was accounted for by Boyle in his settlement with the bank. The bill is filed to compel Lanahan to return these two notes and the instruments securing their payment. The case is certified to be heard here in the first instance.</p>

The declaration contains the common counts and refers to a bill of particulars annexed. It consists of a demand against the board of trustees of colored schools of Washington and Georgetown, D. 0., for plans, specifications, drawings, and superintendence of Sumner school, and for services performed on three other school buildings, as an architect. There is a balance of §2,155 due.

From the pleadings and evidence in this cause it appears that one Evan Lyons, in December, 1873, was indebted to the Freedman’s Savings and Trust Company in the sum of $34,000. The company, for this sum, held the promissory note of Lyons, dated July —, 1872, at twelve months, which was secured by a deed of trust on property -within the District.

This was an action to recover damages alleged to have been sustained by the plaintiff while being ejected from a street-car by a conductor of the defendant, in the city of Washington, on the 18th day of May, 1874.

<p>Contracts executed by the plaintiff as one of the contracting parties, and by the president of the board of health the other contracting party,, are not binding upon the District of Columbia.</p>

<p>The case is stated in the opinion of the court.</p>

<p>The case is stated in the opinion of the court.</p>

<p>I. The condition in an official bond of a justice of the peace, that he shall well and faithfully perform the duties of said office, means, so far'as the same affects the sureties on said bond, that he will discharge the duties of a justice of the peace to the best of his ability.</p> <p>II. In an action against the sureties on the official bond of a justice of the peace, which action is on the alleged ground that the justice issued- a writ without authority of law, by virtue of which writ certain gooils were seized and taken away by the constable executing the same, it is necessary to aver in the declaration that -the justice knowingly, willfully, or wrongfully omitted to do what ought to have been done, or that, in doing what he did by way of issuing process, he knowingly, willfully, or corruptly instituted the proceedings to the injury of the plaintiff.</p>

<p>I. The well-known rule in equity requires that complainant shall overcome the denial of the.defendant responsive to the bill by the testimony of witnesses to the fact or by a witness and strong corroborating circumstances.</p> <p>II. Courts will be cautious in permitting the terms of written instruments to be varied by parol testimony, and if a doubt exists, they will return to the writing of the parties, and will be guided by it as to the contract and its meaning.</p>

<p>A certificate of stock in an incorporated company was deposited with complainants as collateral security for a loan of money. The defendant N., who was the owner of the certificate, gavo it to D., the other defendant, for ilie purpose of borrowingmoney on the security thereof. When the loan fell due, it was discovered that the power of attorney by which alone the certificate could bo transferred upon the books of the company had been struck out, and neither of the defendants wore aware of it until informed by the complainants. N. refused to re-execute said power of attorney; and tho indebtedness remains unpaid. Under these circumstances the court made a decree for tho sale of the certificate of stock, and that the proceeds thereof be applied to the payment of the amount due upon the loan.</p>

<p>I. In an action of assumpsit upon the common counts a plea pit is darrein continuance of payment is a waiver of the prior pleas, and the only question is whether the plaintiff’s claim has been paid since the original pleas were filed.</p> <p>II. A party who has fully performed a special contract may recover a judgment in an action of assumpsit on the common counts, but he is restricted in his evidence as to the amount of his claim to the terms of such contract, and it is erroneous in such case to make allowances on the principle of a quantum meruit, unless for the performance of work or for materials not provided lor in the contract.</p> <p>III. Damages in consequence of delays in the performance of the contract, caused by the neglect of the defendant, cannot be recovored in an action of assumpsit for work done and materials furnished, but in a different form of action.</p> <p>IV. Where the work done was authorized by law, and has been accepted, used, and controlled by the District of Columbia for the benefit of the public, the contractor will be permitted to recover upon his contract, although the agents of the District neglected their duty in complying with the forms prescribed by law in making it.</p> <p>V. An action of assumpsit, where pleas in bar to the plaintiff’s claim have been interposed by defendant, cannot be referred to auditors under Maryland act of November, 1785, chap. 80, sec. 12, for the auditor is not authorized to decide issues under such pleas.</p> <p>VI. In case of a reference under the 54th rule of this court, which is taken from said Maryland act, the report of the auditor must stand, unless the party dissatisfied excepts and points out the error, and the trial then proceeds upon the exceptions, the court to decide all questions of law and the jury to determine the facts. — Humphreys, J.]</p>

<p>The case is stated in the opinion of the court.</p>

This was an action of replevin brought by the plaintiff as trustee in a chattel-mortgage to recover articles of household furniture embraced in said mortgage, and which had been seized by the defendant, as United States marshal, upon an execution against one Olive M. Hetchman, the person who • had executed the said deed of mortgage. The defendant put in a plea that the goods and chattels sought to be replevied did not nor did any of them belong to the plaintiff.

The complainant, Jennie W. Holtzman, is the daughter of the principal defendant, Stephen D. Castleman, and wife of William F. Holtzman. The other defendants are her brothers and sister, who are merely formal parties; for no relief is asked against them, and they expect no advantage from this action.

<p>I. In view of the decisions of the United States Supreme Court, it may-now be considered settled law that a court of equity will not interfere by injunction to restrain the collection of a tax upon the mere allegation that the tax is illegal or void. The enforcement of the tax must lead to a multiplicity of suits, or irreparable injury, or throw a cloud upon the title to real estate, in order to justify the interposition of equity process.</p> <p>II. The 37th section of the act of Congress organizing a government for this District declares that the board of public works shall assess, in such manner as shall “be prescribed by law,” upon property benefited by improvements, an amount not to exceed one-third of the cost, and the legislative assembly having failed to prescribe a mode or formalities of assessing, it may well be questioned whether there has ever been a valid assessment for such taxes.</p> <p>III. ' The assembly act approved August 10, 1871, “ prescribing a mode of assesment” for special improvements, prescribes a different manner of collecting special taxes from that in which all other taxes are collected, and is therefore in direct violation of the 37th section of the organic act; and tho certificates of assessment, as a step in the process of collection, are therefore null and void.</p> <p>IV. A court of equity will grant relief against the sale of proporty upon a certificate for special-improvement taxes where the certificate has been issued without authority of law and the tax had been anticipated by the sale of the evidence thereof, and where the cost of the improvement has been collected from the United States, on the ground that such sale cannot take place without casting a cloud upon plaintiff’s title.</p> <p>V. Wylie, J., concurs, but is of opinion that equity ought to prevent the collection of an illegal tax, or one which is void at law.</p>

John A. Gately made Ms will January 11,1873, and directed therein, “after Ms debts and funeral charges were paid,” first, that a marble monument should be put upon his grave, the expense thereof not to exceed $1,000, and that part of his property situated on the corner of B and Twelfth streets northeast be sold for cash, at public auction, and that the proceeds-thereof should be applied to the payment thereof. The lot thus designated is situated in square 1010.

This was an action commenced against the late corporation of Washington City in 1869.

On the 13th day of November, A. D. 1875, Theodore P. 'Gatchel, assuming to act as next friend of said John Henry Poole, (an infant aged seven years,) exhibited in this honorable court his petition alleging that said Zaulo Poole was an infant five years old, and was unlawfully restrained of his liberty by two men calling themselves the Foole brothers, who compelled him to perform acrobatic feats of the most dangerous character, imperiling his life and limbs, praying that the…

The complainant is a member of said Fifth-Ward Building Association, and obtained an advance from tbe association on tbe 31st day of March, 1870, amounting to the sum of $895, on ten shares of his stock. And on the 19th of August, in the same year, he received a further advance of $550 on five other shares, and executed the usual deeds of trust to secure the same upon certain pieces of land in the city of Washington.