Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924018647390 'llMS,fef,,?'D'«ric,c INDEX-DIGEST OF DISTRICT OF COLUMBIA CASES being a complete digest of cases decided by the Court of appeal? of ttt Dtisttfct of Columliia from 1893, the date of its organization, to March 1, 1908, and reported in volumes 1 to 29, inclusive, of the Appeal Cases, D. C; also of reported decisions of the %iupteme Coutt of tU Distttct of Columbia rendered during that period and reported in the Wash- ington Law Reporter; and of cases decided by the Supreme Court of tt)e 21niteD States on Appeal from the Court of Appeals. BY WM. S. TORBERT, OF THE DISTRICT OF COLUMBIA BAR. PUBLISHED UNDER THE DIRECTION OF THE BAR ASSOCIA- TION OF THE DISTRICT OF COLUMBIA, JOHN BYRNE & COMPANY Washington, D. C. 1908. ,3 ^7 6^. Copyright 1908 by William S. Torbert. TO mtlUam JF. iflattmglp ^Justum et tenacem propositi virum" This Volume is Respectfully imtxibth PREFACE. This work has been prepared under the direction of the Bar Association of the District of Cohimbia, to meet a long-felt want for a complete digest of District of Columbia cases decided since the organization of the Court of Appeals in 1893. It covers all cases decided by that court and reported as late as March i, 1908. Reference to some of the later cases has necessarily been made to the report in the Washington Law Reporter, volume 30 of the Appeal Cases D. C, not having been published at the time the work went to press. The work also covers reported de- cisions of the Supreme Court of the District of Columbia and decisions of the Supreme Court of the United States, in cases originating in the District of Columbia during the period men- tioned. Owing to the large volume of matter, it was deemed advisable by the publisher to publish a second volume covering the subjects of patents and trade-marks. These subjects will not, therefore, appear in the present volume, but will shortly appear under separate cover. The general practitioner will doubtless appre- ciate this, as it obviates the insertion in this volume of a very large amount of matter for which he would have little or no use. A word as to the title, "Index-Digest." The work is some- thing more than an ordinary digest. It has been sought to minimize the use of bare cross-references and to substitute therefor a reference to the specific point, so that, with few ex- ceptions, a point, or reference thereto, will be found under wliat- ever caption the searcher may look for it. To Mr. Richard A. Ford, editor of the Washington Law Re- porter, the digester is indebted for courteous permission to use the head-notes to cases reported in that periodical. In many cases it has been found impossible to improve upon his state- ment of points and to some extent his work has been used as the clearest possible exposition thereof, with such changes only as were necessary to the brevity required. W. S. T. Washington, D. C, March i, 1908. JUSTICES OF THE SEVERAL COURTS WHOSE DECISIONS ARE HEREIN DIGESTED. Supreme Court of the United States. Melville W. Puller, Chief Justice; commissioned April 30, 1888. Associate Justices. Stephen J. Field, commissioned March 10, 1863 ; resigned Dec. 1897 John M. Harlan, commissioned Nov. 29, 1877. Horace Gray, commissioned 1881 ; died Sept. 15, 1903. David J. Brewer, commissioned December 18, 1889. Henry B. Brown, commissioned Dec. 33, 1890 ; retired May 38, 1906. George Shiras, Jr., commissioned July, 1893; resigned Feb. 33, 1903. Howell E. Jackson, commissioned 1893 ; died Aug. 8, 1895. Edward D. White, commissioned Feb. 19, 1894. Rufus W. Peckham, commissioned Dec. 9, 1895. Joseph McKenna, commissioned Jan. 31, 1898. Oliver Wendell Holmes, commissioned 1903. William R. Day, commissioned March 3, 1903. William H. Moody, commissioned Dec. 17, 1906. Court of Appeals of the District of Columbia. Richard H. Alvey, Chief Justice ; commissioned April 15, 1893 ; retired Dec, 1904. Seth Shepard, Chief Justice ; commissioned Jan. 5, 1905. Martin F. Morris, Associate Justice ; commissioned April 15, 1893 ; re- tired June, 1905. Seth Shepard, Associate Justice ; commissioned April 15, 1893 ; became Chief Justice Jan. 10, 1905. Charles H. Duell, Associate Justice ; commissioned Jan. 5, 1905 ; resigned Aug., 1906. Louis E. McComas, Associate Justice ; commissioned June 36, 1905 ; died Nov. 10, 1907. Charles H. Robb, Associate Justice, commissioned Oct. 5, 1906. Josiah A. Van Orsdel, Associate Justice; commissioned Dec. 13, 1907. Supreme Court of the District of Columbia. Edward F. Bingham, Chief Justice, commissioned April 33, 1887; retired April 30, 1903. Harry M. Clabaugh, Chief Justice, commissioned April 1, 1903. Alexander B. Hagner, Associate Justice ; commissioned Jan. 31, 1879 ; retired June 1, 1903. Walter S. Cox, Associate Justice, commissioned March 1, 1879 ; retired July 3, 1899. Andrew C. Bradley, Associate Justice, commissioned March 33, 1889 ; died May 15, 1903. VI Louis E. McComas, Associate Justice; commissioned Nov. 23, 1892; re- signed March 3, 1899. Charles C. Cole, Associate Justice; commissioned Jan. 28, 1893; resigned April 22, 1901. Harry M. Clabaugh, Associate Justice ; commissioned March 2, 1899 ; appointed Chief Justice April 1, 1903. Job Barnard, Associate Justice; commissioned October 1, 1899. Thomas H. Anderson, Associate Justice; commissioned April 23, 1901. Ashley M. Gould, Associate Justice ; commissioned Dec. 8, 1902. Jeter C. Pritchard, Associate Justice ; commissioned April 1, 1903 ; re- signed June 1, 1904. Daniel Thew Wright, Associate Justice; commissioned Nov. 17, 1903. Wendell Phillips Stafford, Associate Justice; commissioned June 1, 1904. Table of Cases. vii Explanation of Abbreviations Used in tiie Following Table of Cases and Throughout tiie Work. App. D. C. and App. — Appeal Cases, District of Columbia. W. L. R. — Washington Law Reporter. U. S. — United States Reports. L. Ed. — Lawyers' Edition, United States Reports. S. Ct. — Supreme Court Reporter. Fed. R. — Federal Reported O. G.— Official Gazette of Patent Office. C. D. — Commissioner's Decisions. TABLE OF CASES DIGESTED. Witii Notation of Citations. * Abbot V. Ross, 9 App. D. C. 289 ; 24 W. L. R. 662. Reversed in 167 U. S. 548. Abert, Bryan v., 3 App. D. C. 180 ; 23 W. L. R. 297. Abner-Drury Brewing Co., Leonard v., 25 App. D. C. 161 ; 33 W. L. R. 211. Accident Association v. Dudley, 15 App. D. C. 472 ; 28 W. L. R. 34. Accident Association v. Hodgkin, 4 App. D. C. 516 ; 23 W. L. R. 789. Acker v. Acker, 23 App. D. C. 353 ; 31 W. L. R. 509. Ackerman v. Mclntire, 7 App. D. C. 443 ; 34 W. L. R. 56. Adams, Adams Express Co. v., 29 App. D. C. 250 ; 35 W. L. R. 208. Adams, Baltimore & Ohio R. R. Co. v., 10 App. D. C. 97 ; 25 W. L. R. 167. Adams v. Columbia Typographical Union, 34 W. L. R. 237. Adams, Glenn v., 13 App. D. C. 175. Adams, In re, 24 App. D. C. 275. Adams, Morgan v., 29 App. D. C. 198 ; 35 W. L. R. 190. Adams v. Murphy, 18 App. D. C. 172. Adams, Uhler v., 1 App. D. C, 392 ; 21 W. L. R. 803. Adams v. Washington & Georgetown R. R. Co., 9 App. D. C. 26; 24 W. L. R. 364. Cited in 10 App. D. C. 48; 12 lb. 160; 30 lb. 165; 23 lb. 507 ; 24 lb. 26, 534 ; 26 lb. 473. Adams, Washington & Georgtown R. R. Co. v., 11 App. D. C, 396; 35 W. L. R. 744. Adams Express Co. v. Adams, 39 App. D. C. 350; 35 W. L. R. 208. Adriaans, In re, 17 App. D. C. 39; 38 W. L. R. 679; 28 App. D. C. 515; 35 W. L. R. 66. Adriaans v. Johnson, 24 W. L. R. 581. Adriaans v. Lyon, 8 App. D. C. 532; 24 W. L. R. 488, 662. Adriaans v. Reilly, 27 App. D. C. 167 ; 34 W. L. R. 354. Adriance, Piatt & Co, v. Heiskell, 8 App. D. C. 240; 34 W. L. R. 317. Cited in 31 App. D. C. 380. Aglar, Pickles v., 13 App. D. C. 556. A. G. Spalding Bros., In re, 37 App. D. C. 314. Ainsworth, De Arnaud v., 34 App. D. C. 167; 32 W. L. R. 663. Writ of error dismissed, 199 U. S. 616. Ainsworth, Reaves v., 38 App. D. C. 157 ; 34 W. L. R. 542. Ainsworth v. United States, 1 App. D. C. 518 ; 21 W. L. R. 806. Cited in 24 App. D. C. 317. ♦Citations are given only after direct title of case and not after trans- positions. viii Table of Cases. Ainsworth, United States v., 3 App. D. C. 483 ; 32 W. L. R. 404. Akers v. Marsh, 19 App. D. C. 28; 29 W. L. R. 786. Cited in 27 App. D. C. 563. Albaugh V. Litho- Marble Decorating Co., 14 App. D. C. 113 ; 27 W. L. R. 130. Albert, Wickers v., 29 App. D. C. 23. Alexander v. Alexander, 13 App. D. C. 334 ; 26 W. L. R. 787. Cited in 15 App. D. C. 340; 21 Ih. 484; 23 Ih. 319; 181 U. S. 578. Alexander v. Blackman, 26 App. D. C. 541. Alexander, Kennedy v., 21 App. D. C. 424 ; 31 W. L. R. 158. Alfred Richards Brick Co. v. Atkinson, 16 App. D. C. 462 ; 28 W. L. R. 503. Alfred Richards Brick Co. v. Rothwell, 18 App. D. C. 516; 19 App. D. C. 178 ; 29 W. L. R. 687, 842. Cited in 20 App. D. C. 269, 378. Alfred Richards Brick Co. v. Trott, 16 App. D. C. 293; 28 W. L. R. 436. Cited in 23 App. D. C. 285. Alfred Richards Brick Co. v. Trott, 23 App. D. C. 284 ; 32 W. L. R. 177. Allemannia Fire Ins. Co. v. Firemen's Ins. Co., 28 App. D. C. 330; 34 W. L. R. 754. Affirmed in 209 U. S. 326. Allen, District of Columbia v., 15 App. D.. C. 70; 27 W. L. R. 385. Af- firmed in 181 U. S. 402. Allen V. District of Columbia, 181 U. S. 402, affrming 15 App. D. C. 70, Cited in 188 U. S. 518. Allen, Frey v., 9 App. D. C. 400 ; 25 W. L. R. 39. Allen V. Lowry, 26 App. D. C. 8 ; 33 W. L. R. 354. Allen, Lyons v., 11 App. D. C. 543 ; 26 W. L. R. 50. Allen, Millett v., 27 App. D. C. 70. Allen, National Phonograph Co, v., 101 O. G. 1133 ; 1902 C. D. 571. Allen, Resell v., 16 App. D. C, 559. Allen, Steinmetz v., 22 App. D. C. 56 ; 31 W. L. R. 358. Allen, Tuttle v., 35 W. L. R. 50. Allen V. U. S. ex rel. Lowry, 26 App. D. C. 8 ; 33 W. L. R. 354. Cited in 26 App. D. C. 399. Allen V. U. S. ex rel. Regina Music Box Co., 22 App. D. C. 271 ; 31 W. L. R. 476, 114. Allen, U. S. ex rel. Tuttle v., 35 W. L. R. 50. Allen, U. S. ex rel. Steinmetz v., 22 App. D. C. 56; 31 W. L. R. 358. Reversed in 192 U. S. 543. Allison (U. S. ex rel.) Garfield v., 30 App. D. C. 188, 190; 35 W. L. R. 785, 786. Allman v. District of Columbia, 3 App. D. C. 8 ; 22 W. L. R. 201. Cited in 15 App. D. C, 62, 310; 16 Ih. 38. Alsop V. Fedarwisch, 9 App. D. C. 408 ; 25 W. L. R. 22. Alsop, Fedarwisch v., 18 App. D. C. 318 ; 29 W. L. R. 367. Alton, Colonna v., 23 App. D. C. 296 ; 32 W. L. R. 165. Ambler v. Ames, 1 App. D. C. 191 ; 21 W. L. R. 643. Ambler v. Archer, 1 App. D. C. 94 ; 21 W. L. R. 600 ; 2 App. D. C. 41. America, Vogelsang v., 34 W. L. R. 722. American Bonding & Trust Co,, Smith v., 12 App. D. C. 192; 26 W. L. R. 199. American Bonding & Trust Co. v. U. S., to use of Lincoln, 15 App. D. C. 397; 27 W, L. R. 757. American Bonding & Trust Co. v. U. S. to use of Paynter, 23 App. D. C. 535; 33 W. L. R. 362. American Car Co., Wash. & Georgetown R. R. Co. v., 5 App, D, C. 524; 23 W. L, R, 341, 346, American Circular Loom Co,, In re, 28 App, D. C. 446, 450. American Federation of Labor v. Buck Stove & Range Co., 35 W. L. R, 797. American Glue Co., In re, 27 App. D. C. 391. American Graphophone Co, v. Smith, 26 App, D. C. 563 ; 34 W. L. R. 112. American Home Life Ins. Co. v. Drake, 30 App. D. C. 263; 36 W. L. R. 69. Table; of Cases. ix American Ice Co., Eastern Trust & Banking Co. v., 14 App. D. C. 304 ; 37 W. L. R. 182. American Ice Co. v. Eastern Trust & Banking Co., 17 App. D. C. 423; 39 W. L. R. 55 ; affirmed in 188 U. S. 636. American Security & Trust Co., Bunten v., 35 App. D. C. 226; 33 W. L. R. 347. Colville v., 10 App. D. C. 57; 25 W. L. R. 67. Reversed in 173 U. S. 383. V. District of Columbia, 29 App. D. C. 265 ; 35 W. L. R. 147. V. Lyon, 21 App. D. C. 122; 31 W. L. R. 113. Cited in 31 App. D. C. 537. V. Muse, 4 App. D. C. 13 ; 23 W. L. R. 409. Cited in 30 App. D. C. 131. Noble V. See Colville v. American Security & Trust Co. V. Prudential Ins. Co., 16 App. D. C. 318 ; 28 W. L. R. 354. Stant v., 23 App. D. C. 25; 33 W. L. R. 38. Turner v., 29 App. D. C. 460 ; 35 W ; L. R. 303. V. Walker, 33 App. D. C. 583; 33 W. L. R. 348. Ames, Ambler v., 1 App. D. C. 191 ; 21 W. L. R. 643. Ams. In re, 39 App. D. C. 91. Anacostia & Pot. River R. R. Co. v. Klein, 8 App. D. C. 75; 34 W. L. R. 117. Anderson v. Morton, 21 App. D. C. 444 ; 31 W. Iv. R. 274. Writ of error dismissed 195 U. S. 639. V. Reid, 10 App. 436; 25 W. L. R. 174. Cited in 11 App. D. C. 216; 23 lb. 595. Reid v., 13 App. D. C. 30 ; 26 W. L. R. 387. V. Reid, 14 App. D. C. 54; 37 W. L. R. 66. Cited in 16 App. D. C. 63 ; 17 lb. 11 ; 33 lb. 383. V. Reid, 16 App. D. C. 60; 28 W. L. R. 273. V. Wells, 27 App. D. C. 115; 1906 C. D. 667; 122 O. G. 3014. V. White, 3 App. D. C. 408 ; 22 W. L,. R. 159. Cited in 17 App. D. C. 214; 19 lb. 77, 460. Andrews v. Nilson, 37 App. D. C. 451; 1906 C. D. 717; 123 O. G. 1667. Anglo-American Savings & Loan Assn. v. Campbell, 13 App. 581 ; 37 W. L. R. 2. ; Anthony, Waters v., 30 App. 124; 30 W. L. R. 375. Antisdel, Foster v., 14 App. 552. Lloyd v., 17 App. 490. Appeal of Cheneau, 5 App. D. C. 197 ; 23 W. L. R. 107. Drawbaugh, 3 App. D. C. 236; 22 W. L. R. 352. Forg, 2 App. D. C. 58; 22 W. L. R. 116. Heroult, 5 App. D. C. 90 ; 23 W. L. R. 73. Messinger, 12 App. D. C. 532 ; 36 W. L. R. 563. Schaeffer, 2 App. D. C. 1 ; 33 W. L. R. 81. Appert, Parker v., 8 App. D. C. 370 ; 34 W. L. R. 550. V. Schmertz, 13 App. D. C. 117. Cited in 17 App. 344, 470 ; 19 lb. 378 ; 27 lb. 39. Archer, Ambler v., 1 App. D. C. 94 ; 31 W. L. R. 600. Ambler v., 3 App. D. C. 41. V. Murphy, 36 W. L. R. 98. Cited in 17 App. D. C. 161. V. Shoemaker, 26 W. L. R. 98. Arkansas v. Bowen, 3 App. D. C. 537 ; 22 W. L. R. 418. Armat, Latham v., 17 App. 345. Armes, Closson v., 7 App. D. C. 460 ; 24 W. L. R. 71. District of Columbia v., 8 App. D. C. 393 ; 24 W. L. R. 378. Magruder v., 15 App. 379 ; 37 W. L. R. 738. Dismissed in 180 U. S. 496. Ross v., 167 U. S. 548 ; 43 L. Ed. 370 ; 17 S. Ct. 966. Reversing 9 App. D. C. 289; 24 W. L. R. 662. Ross V. See Abbot v. Ross. Armour & Co. .v Gundersheimer, 33 App. D. C. 310 ; 33 W. L. R. 117, 168. Armstrong v. Ashley, 23 App. 368 ; 31 W. L- R. 439. X Tabli; op Casbs. Armstrong v. United States Building & Loan Association, 15 App. D. C. 1 ; 37 W. L. R. 351. Cited in 16 App. D. C. 408 ; 20 /&. 519. Armstrong, Whitworth & Co. v. Norton, 15 App. 223 ; 27 W. L. R. 414. Army and Navy Club v. District of Columbia, 8 App. D. C. 544; 24 W. L. R. 331. Arnold, Booth v., 27 App. D. C. 287 ; 34 W. L. R. 389. V. Carter, 19 App. D. C. 259; 30 W. L. R. 75. V. Tyler, 10 App. 175; 25 W. L. R. 250. Cited in 14 App. D. C. SST; 19 Ih. 384. Arrick v. Fry, 8 App. D. C. 125 ; 24 W. L. R. 146. A. S. Abel Co., Seawell v., 34 W. L. R. 195. Asencio v. Russell, 24 App. D. C. 105. Ashford, United States ex rel. Smithson v., 34 W. L. R. 374; 35 W. L. R. 376; 39 App. D. C. 350. Ashley, Armstrong v., 33 App. D. C. 368 ; 31 W. L. R. 439. Bradshaw v., 14 App. 485 ; 27 W. L. R. 246. Affirmed in 180 U. S. 59. Ashton, District of Columbia v., 14 App. 571 ; 27 W. L. R. 399. Ashworth, Munster v., 29 App. D. C. 84; 128 O. G. 2088. Asphalt Block & Tile Co., Mackey v., 15 App. 410 ; 28 W. L. R. 35. Atchison v. Wills, 21 App. D. C. 548; 31 W. L. R. 311. Atkins V. Best, 27 App. D. C. 148 ; 34 W. L. R. 292. Atkins & Co., In re, 29 App. D. C. 385. Atkinson, Alfred Richards Brick Co. v., 16 App. D. C. 462; 28 W. L. R. 503. Atterbury, Croskey v., 9 App. 207 ; 24 W. L. R. 490. • Atwood, Estate of. In re, 2 App. D. C. 74. Audubon v. Shufeldt, 181 U. S. 575 ; 45 L. Ed. 1009 ; 21 S. Ct. 735. Cited in 190 U. S. 344 ; 196 U. S. 71 ; 197 U. S. 487 ; 133 Fed. R. 19 ; 124 Fed. R. 657; 132 Fed. R. 201. Auerbach v. Wolf, 22 App. 538; 31 W. L. R. 716. Augenstein, Palmer v., 18 App. 511 ; 29 W. L. R. 559. Augusta, Marshall v., 5 App. D. C. 183 ; 23 W. L. R. 40. Aukam, Main v., 4 App. D. C. 51 ; 22 W. L. R. 633. Aukam, Main v., 12 App. 375; 36 W. L. R. 339. Austin V. Johnson, 18 App. D. C. 83. Cited in 31 App. D. C. 301, 205; 23 Ih. 194. Austin, Winslow v., 14 App. 137. Automatic Scale Co., Computing Scale Co. v., 26 App. D. C. 238; 33 W. L. R. 789. Affirmed in 204 U. S. 609. Averell, Second National Bank v., 3 App. D. C. 470 ; 22 W. L. R. 185. Babbington v. Washington Brewery Co., 13 App. 527; 37 W. L. R. 23. Cited in 17 App. D. C. 520; 26 Ih. 218. Backus Portable Steam Heater Co. v. Simonds, 2 App. D. C. 290; 32 W. L. R. 137. Bader v. Vajen, 14 App. 241. Cited in 33 App. D. C. 194; 24 Ih. 473; 27 lb. 522. Baetjer, Colbert v., 4 App. D. C. 416; 22 W. L. R. 763. Baggett V. Baltimore & Ohio R. R. Co., 3 App. D. C. 533 ; 22 W. L. R. 441. Bailey v. District of Columbia, 4 App. D. C. 356 ; 22 W. L. R. 735. Cited in 12 App. D. C. 163 ; 18 App. D. C. 606 ; 26 /&. 157 ; 187 U. S. 330. Bailey v. District of Columbia, 9 App. 360; 24 W. L. R. 745. Cited in 11 App. D. C. 390. Reversed in 171 U. S. 161. Bailey v. Holland, 7 App. D. C. 184; 23 W. L. R. 813. Cited in 12 App. D. C. 328; 36 lb. 358. Bailey, Sullivan v., 31 App. 100 ; 31 W. L. R. 111. Baird, United States ex rel. Cardozo v., 30 App. D. C. 86; 35 W. L. R. 15. Dismissed in 35 W. L. R. 463. Baird, Nalle v., 35 W. L. R. 371. Baker v. Cummings, 4 App. D. C. 330 ; 33 W. L. R. 681. Reversed in 169 U. S. 189. Cited in 8 App. D. C. 516. Baker v. Cummings, 169 U. S. 189 ; 43 L. Ed. 711 ; 18 S. Ct. 367. Cited in 184 U. S. 98 ; 194 U. S. 412 ; 114 Fed. R. 576 ; 120 Fed. R. 474. Table op Cases. xi Baker v. Cummings, 8 App. D. C. 515 ; 24 W. L. R. 360. Reversed in 169 U. S. 189. Cited in 170 U. S. 658. Baker, Cummings v., 16 App. 1 ; 28 W. L. R. 131. Reversed in 181 U. S. 117; 45 L. Ed. 776. Baker v. Cummings, 181 U. S. 117 ; 45 L. Ed. 776 ; 21 S. Ct. 578. Cited in 114 Fed. R. 686; 124 Fed. R. 964. Baker, In re, 26 App. D. C. 363; 1906 C. D. 594; 121 O. G. 1352. Baker, Jackson v., 24 App. D, C. 100 ; 32 W. L. R. 430. Baker, Middle States Loan, &c., Co. v.. 19 App. 1 ; 29 W. L. R. 783. Baker, Newman v., 10 App. 187 ; 25 W. L. R. 170. Baker, Schaefer v., 16 App. 213; 28 W. L. R. 355. Bakersmith, District of Columbia v., 18 App. 574; 29 W. L. R. 751. Ball, Danenhower v., 8 App. D. C. 137; 24 W. L. R. 221. Ball, District of Columbia v., 32 App. 543; 31 W. L. R. 726. Ball V. Flora, 26 App. D. C. 394 ; 1906 C. D. 618 ; 121 O. G. 2668. Balster v. Cadick, 29 App. D. C. 405 ; 35 W. L. R. 275. Baltimore & Ohio R. R. Co. v. Adams, 10 App. 97 ; 25 W. L. R. 167. Baltimore & Ohio R. R. Co., Baggett v., 3 App. D. C. 523 ; 22 W. L. R. 441. Baltimore & Ohio R. R. Co. v. Beekman, 30 W. L. R. 715. Baltimore & Ohio R. R. Co., Brown v., 6 App. D. C. 337 ; 23 W. L. R. 337. Baltimore & Ohio R. R. Co. v. District of Columbia, 10 App. Ill; 25 W. L. R. Cited in 12 App. D. C. 544 ; 16 Ih. 289 ; 18 Ih. 467. Baltimore & Ohio R. R. Co. v. Dougherty, 7 App. D. C. 378; 23 W. L. R. 832. Cited in 8 App. D. C. 2. Baltimore & Ohio R. R. Co., Edgerton v., 6 App. D. C. 516; 23 W. L. R. 369. Baltimore & Ohio R. R. Co., Hetzel v., 7 App. D. C. 534; 34 W. L. R. 38. Reversed in 169 U. S. 36. Baltimore & Ohio R. R. Co., Jones v., 4 App. D. C. 158 ; 32 W. L. R. 653. Baltimore & Ohio R. R. Co., Riley v., 27 App. D. C. 105 ; 34 W. L. R. 374. Baltimore & Ohio R. R. Co., Stearman v., 6 App. D. C. 46 ; 23 W. L. R. 216. Baltimore & Ohio R. R. Co., Stewart v., 6 App. D. C. 56 ; 23 W. L. R. 247. Reversed in 168 U. S. 445 ; 42 L. Ed. 537 ; 18 S. Ct. 105. Baltimore & Ohio R. R. Co., Tubman v., 20 App. 541. Affirmed in 190 U. S. 38. Baltimore & Ohio R. R. Co., United States v., 26 App. D. C. 581; 34 W. L. R. 143. Baltimore & Ohio R. R. Co., United States ex rel. Riley v., 27 App. D. C. 105; 34 W. L. R. 374. Baltimore & Ohio R. R. Co., Walter v., 6 App. D. C. 20 ; 23 W. L. R. 226. Baltimore & Ohio R. R. Co., Warner v., 7 App. D. C. 79 ; 23 W. L. R. 679. Reversed in 168 U. S. 339. Baltimore & Ohio R. R. Co., Weaver v., 3 App. D. C. 436 ; 33 W. L. R. 393. Baltimore & Ohio R. R. Co. v. Winslow, 18 D. C. 438; 39 W. L. R. 542. Reversed in 188 U. S. 646. Baltimore & Ohio R. R. Co., Winslow v., 38 App. D. C. 136; 34 W. L. R. 510. Affirmed in 208 U. S. 59. Baltimore & Potomac R. R. Co., Beasley v., 27 App. D. C. 595 ; 34 W., L. R. 430. Baltimore & Potomac R. R. Co., Burch v., 3 App. D. C. 346; 22 W. L. R. 401. Baltimore fr Potomac R. R. Co. v. Carrington, 3 App. D. C. 101 ; 33 W. L. R. 284. Cited in 30 App. D. C. 167. Baltimore & Potomac R. R. Co., Cullen v., 8 App. D. C. 69; 24 W. L. R. 130. Baltimore & Potomac R. R. Co. v. Cumberland, 13 App. 598; 26 W. L. R. 306. Affirmed in 176 U. S. 333. Baltimore & Potomac R. R. Co. v. District of Columbia. See Baltimore & Ohio R. R. Co. V. District of Columbia. Baltimore & Potomac R. R. Co. v. Elliott, 9 App. 341; 24 W. L. R. 760. Cited in 10 App. D. C. 564. Baltimore & Potomac R. R. Co. v. Fitzgerald, 2 App. D. C. 501; 22 W. L. R. 217. xii Table; of Cases. Baltimore & Potomac R. R. Co., Fletcher v., 6 App. 385 ; 33 W. L. R. 390. Reversed in 168 U. S. 135 ; 42 L. Ed. 411 ; 18 S. Ct. 35. Baltimore & Potomac R. R. Co. v. Golway, 6 App. D. C. 143 ; 23 W. L. R. 308. Cited in 24 App. D. C. 529. Baltimore & Potomac R. R. Co., Johnson v., 4 App. D. C. 491 ; 22 W. L. R. 78. Baltimore & Potomac R. R. Co. v. Landrigan, 20 App. D. C. 135 ; 30 W. L. R. 595. Affirmed in 191 U. S. 461. Baltimore & Potomac R. R. Co. v. Taylor, 6 App. D. C. 259; 23 W. L. R. 324. Baltimore & Potomac R. R. Co. v. Walker, 2 App. D. C. 531; 32 W. L. R. 223. Baltimore & Potomac R. R. Co. v. Webster, 6 App. D. C. 182; 23 W. L. R. 323. Cited in 9 App. D. C. 31 ; 12 App. D. C. 607. Bank v. Averell, 3 App. 470; 22 W. L. R. 185. Bank, Brown v., 18 App. 598 ; 29 W. L. R. 819. Bank, Browning v., 13 App. 1. Bank v. Bryan, 20 App. 36 ; 30 W. L. R. 375. Bank v. Central Construction Co., 17 App. 524 ; 29 W. L. R. 107. Bank v. Consumers' Brewing Co., 16 App. 186 ; 28 W. L. R. 330. Bank v. Consumer's Brewing Co., 17 App. 100 ; 28 W. L. R. 751, Bank, Fields v., 10 App. 1 ; 25 W. L. R. 82. Bank v. Hodge, 3 App. D. C. 140 ; 22 W. L. R. 399. Bank v. Hopkins, 8 App. D. C. 146; 34 W. L. R. 161. Bank, Howard v., 12 App. 232. Bank v. Huston, 3 App. D. C. 202; 22 W. L. R. 258. Affirmed in 167 U. S. 203. Bank v. Nebeker, 3 App. D. C. 190. Bank, Russell v., 23 App. D. C. 398 ; 33 W. L. R. 378. Bank, Starkweather v., 31 App. 231; 31 W. L. R. 98. Bank v. United Security Life Ins. Co., 17 App. 112 ; 28 W. L. R. 847. Bank v. Wilson, 5 App. D. C. 8 ; 32 W. L. R. 817. Banville v. Sullivan, 11 App. 23; 35 W. L. R. 345. Cited in 13 App. D. C. 365. Barber, Clark v., 31 App. 374; 31 W. L. R. 94. Barber v. Johnson, 5 App. D. C. 305 ; 23 W. L. R. 182. Barber Asphalt Paving Co., Macfarland v., 39 App. D. C. 506; 35 W. I.,. R. 414. Barbour, District of Columbia v., 5 App. D. C. 497 ; 33 W. L. R. 163. Barbour v. Hickey, 3 App. D. C. 307 ; 32 W. L. R. 57. Barbour v. Moore, 4 App. D. C. 535 ; 32 W. L. R. 792. Cited in 11 App. D. C. 413. Barbour v. Moore, 10 App. 30 ; 25 W. L. R. 55. Barbour v. Paige Hotel Co., 2 App. D. C. 174 ; 23 W. L. R. 33, 337. Cited in 15 App. D. C. 440. Barge "John I. Brady", Fletcher v., 19 App. 174; 30 W. L. R. 38. Bark "Shetland" v. Johnson, 21 App. D. C. 416; 31 W. L. R. 411. Barker, Mutual Fire Ins. Co. v.. 17 App. 205 ; 28 W. L. R. 799. Barley v. Gittings, 15 App. D. C. 437; 27 W. L. R. 803. Barnard, Holmead v., 39 App. D. C. 431 ; 35 W. L. R. 370. Barnard, United States ex rcl. Robertson v., 24 App. D. C. 8; 32 W. L. R. 458. Barnes v. District of Columbia, 24 App. D. C. 458 ; 33 W. L. R. 53. Cited in 26 App. D. C. 133; 37 lb. 101. Barnes v. District of Columbia, 37 App. D. C. 101 ; 34 W. L. R. 358. Barnes, District of Columbia v., 187 U. S. 637. Barnett, Crouch v., 23 App. D. C. 446. Barratt, In re, 11 App. 177 ; 25 W. L. R. 533. Barratt, In re, 14 App. 255. Barratt v. Columbia Ry. Co., 20 App. D. C. 381 ; 30 W. L. R 549. Cited in 23 App. D. C. 564. Barrett, Harter v., 24 App. D. C. 300. Barrett v. United States, 33 App. D. C. 334. TabIvE oif Cases. xiii Barstow v. Capital Traction Co., 29 App. D. C. 363 ; 35 W. L. R. 338. Bartlett, Loring v., 4 App. D. C. 1 ; 33 W. L. R. 398. Basch, Hammond v., 34 App. D. C. 469. Bass V. United States, 20 App. D. C. 233 ; 30 W. L. R. 546. Bateman, Ferguson v., 1 App. D. C. 379 ; 31 W. t. R. 723. Bateman, Plumb v., 2 App. D. C. 156 ; 22 W. L. R.- 20. Bates, United States v., 30 W. L. R. 312. Bates & Co., Drake v., 30 App. D. C. 312 ; 36 W. L. R. 140. Bates & Guild Co., Payne v., 22 App. D. C. 250; 31 W. L. R. 395. Af- firmed in 194 U. S. 106 ; 32 W. L. R. 297. Bates & Guild Co. v. Payne, 194 U. S. 106 ; 48 L. Ed. 894 ; 24 S. Ct. 595. Affirming 22 App. D. C. 350. Cited in 194 U. S. 105, 508. Bates & Guild Co., Cortelyou v., 37 App. D. C. 301 ; 34 W. L. R. 567. Bauer v. Crone, 26 App. D. C. 352 ; 1906 C. D. 545 ; 120 O. G. 1824. Bauman v. Ross, 9 App. 260 ; 24 W. L. R. 635. Reversed in 167 U. S. 548. Bauman v. Ross, 167 U. S. 42; L. Ed. 270; 17 S. Ct. 966. Reversing 9 App. Cas. 260. Cited in 187 U. S. 544; 123 Fed. R. 775; 138 Fed. R. 137. Beal (U. S. ex rel.) v. Cox. 14 App. 368; 37 W. L. R. 230. Beall V. Beall, 27 App. D. C. 468 ; 34 W. L. R. 388. Beall V. Bibb, 19 App. D. C. 311 ; 30 W. L. R. 138. Beall, Shuman v., 37 App. D. C. 334, 339. Beals V. Finkenbiner, 13 App. 23. Cited in 14 App. 41, 54 ; 15 lb. 27, 573 ; 17 Ih. 470; 18 lb. 147; 31 lb. 96; 36 lb. 541, Bean v. Reynolds, 15 App. D. C. 135 ; 37 W.L. R. 483. Bean v. Wheatley, 13 App. 473 ; 26 W. L. R. 805. Beasley v. Baltimore & Pot. R. R. Co., 27 App. D. C. 595 ; 34 W. L. R. 430. Beavans, Ruppert v., 2 App. D. C. 298 ; 33 W. L. R. 105. Beavers, United States v., 34 W. L. R. 62. Bechman v. Southgate, 28 App. D. C. 405 ; 137 O. G. 1254. Bechman v. Wood, 15 App. D. C. 484. Cited in 16 App. D. C. 138, 572; 17 App. D. C. 38, 556, 559 ; 18 App. D. C. 134 ; 21 App. D. C. 201, 205, 206 ; 24 App. D. C. 380, 481 ; 35 App. D. C. 307 ; 36 App. D. C. 394. Beck, Fidelity & Deposit Co. v., 12 App. 237. Bedford, In re, 14 App. 376. Beekman, Railroads v., 30 W. L. R. 715. Behrend v. Holmes, 29 W. L. R. 76. Beitzell v. District of Columbia, 21 App, D. C. 49 ; 31 W. L. R. 82, Belcher's Estate, In re, 21 W. L. R. 827, Bell V. Central National Bank, 28 App, D. C, 580 ; 35 W, L. R. 69. Belt, District of Columbia v. See District of Columbia v. Libbey. Belt, Magruder v., 7 App. D. C. 303 ; 23 W. L. R. 827. Belt, Magruder v., 12 App. 151. Belt, Richardson v., 13 App. 197 ; 36 W. L. R. 505. Belt V. United States, 4 App. D. C. 35 ; 22 W. E. R 447. Belt, Washington Brick Co. v., 13 App. 202. Bender v. Local Union No. 118, 34 W. L. R. 574. Beneficial Endowment Assn., Gilbert v., 10 App., 316; 35 W. L. R. 149. Dismissed in 173 U. S. 701. Beneficial Endowment Assn., Gilbert v., 15 App. 40; 37 W. L. R. 340; 21 App. 344; 31 W. L. R. 190. Beneficial Endowment Assn., Stewart v., 21 App. 344 ; 31 W. L. R. 190. Benefit Association, McElhone v., 2 App. D. C. 397 ; 23 W. L. R. 157. Bennett, National Union v., 20 App. 537 ; 30 W. L. R, 795, Bennett, Torbert v., 34 W. L. R. 149. Bentley, Burton v., 14 App. 471. Benson v. United States, 37 App. D. C. 331; 34 W. L. R. 366. Cited in 27 App. D. C. 363. Benton v. Drum, 36 W. L. R. 146. Benton v Drum, 13 App. 345 ; 36 W. L. R. 642. Bergheimer v. Bergheimer, 17 App. D. C. 381 ; 29 W. L. R. 74. Cited in 34 App. D. C. 160. xiv Table of Cases. Berkeley v. Harper, 3 App. D. C. 308 ; 23 W. L. R. 339. Cited in 36 App. D. C. 169. Berkeley, Harper v., 3 App. D. C. 308 ; 33 W. L. R. 339. Berlin, Ohio National Bank v., 36 App. D. C. 318 ; 33 W. L. R. 736. Bernard, Huebel v., 15 App. 510. Bernard, Supreme Commandery v., 36 App. D. C. 169 ; 33 W. L. R. 733. Bernardin (U. S. ex rel.) v. Butterworth, 169 U. S. 600; 43 L. Ed. 873; 18 S. Ct. 441. Reversing 10 App. D. C. 294. Bernardin (U. S. ex rel.) v. Duel!, 13 App. 379. Affirmed in 173 U. S. 576. Bernardin, Northall v., 7 App. D. C. 453 ; 34 W. L. R- 103. Bernardin (U. S. ex. rel.) v. Seymour, 11 App. 91; 25 W. L. R. 513. Bernardin (U. S. ex rel.) v. Seymour, 10 App. 294; 35 W. L. R. 515. Reversed in 169 U. S. 600. Bernsdorff v. Bernsdorff, 36 App. D. C. 238, 530 ; 33 W. L. R. 775 ; 34 W. L. R. 564. Cited in 36 App. D. C. 335. Best, Atkins v., 37 App. D. C. 148; 34 W. L. R. 293. Beswick's Appeal, In re, 16 App. D. C. 345. Cited in 19 App. D. C. 400. Beyer, LePevre v., 30 W. L. R. 648. Beyer v. LeFevre, 17 App. D. C. 338 ; 38 W. L. R. 863. Reversed in 186 U. S. 114. Cited in 18 App. D. C. 97. Beyer v. LeFevre, 186 U. S. 114 ; 46 L. Ed. 1080 ; 33 S. Ct. 765. Reversing 17 App. D. C. 238. Cited in 133 Fed. R. 913. Bibb, Beall v., 19 App. 311 ; 30 W. L. R. 138. Bieber v. Fechheimer, 9 App. 548 ; 35 W. L. R. 18. Bieber v. Cans, 34 App. D. C. 517 ; 33 W. L. R. 51. Bigbie Bros. & Co., Bluthenthal & Bickart v., 30 App. D. C. 118; 130 O. G. 3068. Bigboy (U. S. ex rel.) Hitchcock v., 33 App. 375; 31 W. L. R. 556. Bippus, Richards v., 18 App. 293 ; 39 W. L. R. 414. Birtwell, Peck v., 8 App. D. C. 156; 34 W. L. R. 167. Bissell V. District of Columbia, 38 App. D. C. 38 ; 34 W. L. R. 544. Blackford v. Wilder, 31 App. D. C. 1. Cited in 31 App. D. C. 85 ; 23 lb. 254; 25 lb. 237; 28 App. D. C. 535; 127 O. G. 1255. Blackman, Alexander v., 36 App. D. C. 541. Blagden, United States to use of Preinkert, 18 App. D. C. 370; 29 W. L. R. 401. Blake, Upper Steamboat Co. v., 3 App. D. C. 51 ; 33 W. L. R. 26. Blandy v. Blandy, 20 App. D. C. 535 ; 30 W. L. R. 808. Bleistein v. Donaldson Lithographing Co., 188 U. S. 339 ; 31 W. L. R. 99. Blick, Metropolitan R. R. Co. v., 33 App. 194 ; 31 W. L. R. 457. Bliss, Brown v., 13 App. 379 ; 26 W. L. R. 660. Affirmed in 173 U. S. 473. Bliss V. McElroy, 29 App. D. C. 130 ; 138 O. G. 458. Bliss, United States ex rel. Wedderburn v., 13 App. 485 ; 36 W. L. R. 393. Block V. Ryan, 4 App. D. C. 283 ; 22 W. L. R. 689. Block & Tile Co., Mackey v., 15 App. 40 ; 38 W. L. R. 35. Blood, Brown v., 23 App. 216. Bluthenthal & Bickart v., Bigbie Bros. & Co., ^0 App. D. C. 118 ; 130 O. G. 2068. Board of Medical Supervisors, Czarra v., 34 App. D. C. 251 ; 32 W. L. R. 744. Board of Medical Supervisors, Czarra v., 25 App. D. C. 443; 33 W. L. R. 470. Boarman, Sis v., 11 App. 116 ; 25 W. L. R. 431. Boch, Locke v., 17 App. 75. Boering v. Chesapeake Beach Ry. Co., 30 App. D. C. 500; 30 W L. R. 743. Affirmed in 193 U. S. 443; 33 W. L. R. 195. Bogan, Pumphrey v., 8 App. D. C. 449 ; 34 W. L. R. 303. Bohnke, Virginia Fire & Marine Ins. Co. v., 4 App. D. C. 371; 23 W L R. 750. Bohrer v. Otterback, 3 App. D. C. 78 ; 33 W. L. R. 54. Cited in 19 App. D. C. 265. Bokel-Gwynn-McKenney Co. v. Costello, 23 App. 81; 31 W. L. R. 374. BoUee, McMulkin v., 30 App. D. C. 112 ; 130 O. G. 1691. Table op Cases. xv Boiling, District of Columbia v., 4 App. D. C. 397 ; 22 W. L. R. 753. Boiling, District of Columbia v., 4 App. D. C. 404 ; 23 W. L. R. 753. Bond V. Carter Hardware Co., 15 App. D. C. 72 ; 27 W. L. R. 450. Bond V. Grimm, 34 W. L. R. 724. Bond, United Security Life Ins. Co. v., 16 App. 579 ; 28 W. L. R. 456. Bonding & Trust Co., Smith v., 12 App. 192. Bonding & Trust Co. United States to use of Lincoln, 15 App. D. C. 397 ; 27 W. L. R. 757. Bonding & Trust Co. v. United States to use of Paynter, 23 App. D. C. 535 ; 32 W. L. R. 362. Boogher v. Byers, 10 App. 419 ; 25 W. L. R. 205. Boogher v. Roach, 12 App. 477; 26 W. L. R. 297. Cited in 25 App. D. C. 324. Boogher v. Roach, 25 App. D. C. 324 ; 33 W. L. R. 326. Boogher v. Weaver, 12 App. D. C. 477 ; 26 W. L. R. 297. Booth V. Arnold, 37 App. D. C. 387 ; 34 W. L. R. 289. Booth, Kengla v.. 24 W. L. R. 715. Booth V. Kengla, 10 App. 558 ; 24 W. L. R. 715. Bostwick, Vestry of St. John's Parish v., 8 App. D. C. 453 ; 34 W. L. R. 310. Boswell, District of Columbia v., 6 App. D. C. 403; 33 W. L. R. 433. Bottineau v. O'Grady, 34 W. L. R. 148. Bourn v. Hill, 27 App. D. C. 291 ; 1906 C. D. 699 ; 123 O. G. 1284. Bowen, Arkansas v., 3 App. D. C. 537 ; 22 W. L. R. 418. Bowie V. Hume, 13 App. 386 ; 26 W. L. R. 690. Cited in 16 App. D. C. 198. Bowler V. Stoutenburgh. See Balto. & Ohio R. R. Co. v. District of Co- lumbia. Bowles V. District of Columbia, 23 App. D. C. 331; 31 W. L. R. 539. Cited in 37 App. D. C. 84. Bowyer, Rodriquez v., 25 App. D. C. 131; 33 W. L. R. 164. Boyce, Fowler v., 37 App. D. C. 48, 55. Boyd, United States v., 8 App, D. C. 440; 24 W. L. R. 298. Boyd V. Willard, 34 W. L. R. 99. Bradfield v. Roberts, 36 W. L. R. 84. Bradfield, Roberts ,, 13 App. 453 ; 26 W. L. R. 242. Affirmed in 175 U. S. 291; 28 W. L. R. 3. Bradford v. Brown, 22 App. 455 ; 31 W. L. R. 696. Bradford v. Matthews, 9 App. 438; 24 W. L. R. 763. Cited in 19 App. D. C. 501. Bradford v. Nat'l Benefit Ass'n, 36 App. 268 ; 33 W. L. R. 786. Bradley, Brown v., 6 App. D. C. 307; 33 W. L. R. 393. Bradley v. District of Columbia, 20 App. D. C. 169; 30 W. L. R. 455. Cited in 20 App. D C. 340 ; 26 lb. 382. Bradley, McKay v., 26 App. D. C. 449 ; 34 W. L. R- 33. Bradley, Williams v., 2 App. D. C. 346 ; 22 W. L. R. 146. Bradley Coal, L. & C. Co., Clark v., 6 App. D. C. 437 ; 23 W. L. R. 419. Bradshaw v. Ashley, 14 App. 485 ; 27 W. L. R. 246. Affirmed in 180 U. S. 59. Cited in 33 App. D. C. 369, 371 ; 23 Ih. 594. Bradshaw v. Earnshaw, 11 App. 495 ; 35 W. L. R. 809. Bradshaw, In re, 29 W. L. R. 590. Bradshaw, Neilson v., 16 App. 92. Bradshaw v. Stott, 4 App. D. C. 537; 33 W. L. R. 806. Bradshaw v. Stott, 7 App. D. C. 276 ; 23 W. L. R. 830. Cited in 9 App. D. C. 356 Brady, Bronson v., 38 App. D. C. 250 ; 34 W. L. R. 704. Brady v. United States, 1 App. D. C. 246; 21 W. L. R. 665. Cited in 16 App. D. C. 363; 24 lb. 385. Brainard v. Buck, 16 App. D. C. 595; 38 W. L. R. 585. Affirmed in 184 U. S. 99. Brainard v. Buck, 184 U. S. 99 ; 46 L. Ed. 449 ; 22 S. Ct. 458. Cited in 184 U. S. 604 ; 194 U. S. 412. xvi Tablb of CasbS. Brandenburg v. District of Columbia, 26 App. D. C. 140 ; 33 W. L. R. 740. Cited in 26 App. D. C. 146. Brandenburg, Kaiser v., 16 App. 310 ; 28 W. L. R. 395. Brandenburg, Ubhoff v., 26 App. D. C. 3 ; 33 W. L. R. 473. Brashears v. Metropolitan Ins. Co., 1 App. D, C. 420 ; 21 W. L. R. 810. Breen & Kennedy, Buchanan-Anderson-Nelson Co. v., 27 App. D. C. 573. Brennan Construction Co. v. Cumberland, 29 App. D. C. 554; 35 W. L. R. 854. Brennan Construction Co., Hughes v., 24 App. D. C. 90; 32 W. L. R. 393. Breul V. Smith, 10 App. 180; 25 W. L. R. 198. Cited in 14 App. D. C. 135; 16 Ih. 566; 21 lb. 10. Brewer, District of Columbia v., 7 App. D. C. 113; 23 W. L. R. 'i'24. Cited in 17 App. D. C. 406. Brewer v. Slater, 18 App. D. C. 48; 29 W. L. R. 259. Cited in 27 App. D. C. 234. Brewing Co., Babbington v., 13 App. 527. Brewing Co. v. Bush, 19 App. 588 ; 30 W. L. R. 307. Brewing Co., Commercial Nat'l Bank v., 16 App. 186 ; 28 W. L. R. 320, 751. Brewing Co. v. Cosgrove, 34 W. L. R. 68, 132. Brewing Co., Leonard v., 35 App. D. C. 161 ; 33 W. L. R. 211. Brewing Co. v. Tobin, 18 App. 584; 29 W. L. R. 841. Brewing Co. v. Tobin, 19 App. 353 ; 30 W. L. R. 170. Brick Co. v. Atkinson, 16 App. D. C. 462 ; 28 W. L. R. 503. Brick Co. v. Belt, 13 App. 202. Brick Co. v. District of Columbia, 1 App. D. C. 351 ; 21 W. L. R. 739. Brick Co. v. Rothwell, 18 App. D. C. 516 ; 29 W. L. R. 687 Brick Co. v. Rothwell, 19 App. D. C. 178; 29 W. L. R. 842. Brick Co. v. Trott, 16 App. D. C. 393 ; 28 W. L. R. 436, Brick Co. v. Trott, 23 App. D. C. 284; 32 W. L. R. 177. Bride (U. S. ex rel.) v. Macfarland, 18 App. 120; 29 W. L. R. 342. Bridge Co. v. Taft, 34 W. L. R. 278. Briede, In re, 27 App. D. C. 298 ; 1906 C. D. 677 ; 123 O. G. 322. Briel v. Jordan, 27 App. D. C. 202 ; 34 W. L. R. 341. Briggs, In re, 9 App. 478 ; 25 W. L. R. 75. Cited in 14 App. D. C. 184, 477. Bright, Fifth Congregational Church v., 28 App. D. C. 229; 34 W. L. R. 718. Brightwood Ry. Co. v. Carter, 13 App. 155. Brightwood Ry. Co., Harten v., 18 App. 360 ; 29 W. L. R. 500. Brightwood Ry: Co. (U. S. ex rel.) v. O'Neil, 24 W. L. R. 406. Cited in 174 U. S. 40. Brightwood Ry. Co. (U. S. ex rel.) v. O'Neal, 10 App. 305; 35 W. L. R. 98. Affirmed in 174 U. S. 46. Brill V. Washington Rv. & El. Co., 30 App. D. C. 255 ; 36 W. L. R. 55. Brinkman, Roberts v., 10 App. 543 ; 35 W. L. R. 543. Briscoe (U. S. to use of) v. City Trust, S. D. & Surety Co., 23 App. D. C. 155 ; 32 W. L. R. 53. Brodie (U. S. ex rel.) v. Seymour, 25 W. L. R. 182. Brodie (U. S. ex rel.) Seymour v., 10 App. 567; 25 W. L. R. 183, 253. Bronson v. Brady, 28 App. D. C. 250 : 34 W. L. R. 704. Bronson Co. (U. S. ex rel.) v. Duell, 2S W. L. R. 788. Bronson Co. (U. S. ex rel.) v. Duell, 17 App. 471; 29 W. L. R. 126. Brooke v. District of Columbia, 29 App. D. C. 563 ; 35 W. L. R. 318. Brooks V. Brooks, 28 W. L. R. 335. Brooks, Hillard v. 23 App. D, C. 526. Brooks, Smith v., 24 App. D. C. 75. Brown, Balto. & Ohio R. R. Co. v., 6 App. D. C. 237; 23 W. L. R. 337. Cited in 14 App. D. C. 294; 23 Ih. 237. Brown v. Bliss, 13 App. 279 ; 26 W. L. R. 660. Affirmed in 173 U. S. 473 Brown v. Blood, 22 App. D. C. 216. Cited in 24 App. D. C. 270. Brown, Bradford v., 22 App. D. C. 455; 23 W. L. R. 293. Cited in 17 App. D. C. 520. Brown v. Bradley, 6 App. D. C. 207 ; 23 W. L. R. 293. Tablb of Cases. xvii Brown, Capital Traction Co. v., 39 App. D. C. 473 ; 35 W. L. R. 306. Brown v. Commercial Fire Ins. Co., 21 App. D. C. 325; 31 W. L. R. 306. Cited in 35 App. D. C. 98. Brown V. Delafield & Baxter Cement Co., 1 App. D. C. 233 ; 31 W. L. R. 653. Cited in 27 App. D. C. 433. Brown, Dengel v., 1 App. D. C. 423 ; 31 W. L. R. 741. Brown v. District of Columbia, 39 App. D. C. 273 ; 35 W. L. R. 163. Brown, Eaton v., 30 App. 458 ; 30 W. L. R. 746. Reversed in 193 U. S. 411 Brown, Easterhazy v., 35 W. L. R. 478. Brown v. Grand Fountain of U. O. of True Reformers, 34 W. L. R. 750 ; 38 App. D. C. 200. Brown, Gwin v., 21 App. 295 ; 31 W. L. R. 219. Brown v. Hitchcock, 173 U. S. 473 ; 43 L. Ed. 772 ; 19 S. Ct. 485. Cited in 189 U. S. 54; 190 U. S. 491; 195 U. S. 508; 139 Fed. Rep. 8; 133 Fed. Rep. 388. Brown, Hutchinson v., 8 App. D. C. 157; 34 W. L. R. 219. Brown v. Macfarland, 19 App. D. C. 535; 30 W. L. R. 335. Cited in 30 App. D. C. 180; 25 App. 438. Brown V. Macfarland, 32 App. 413; 31 W. L. R. 541. Brown, Macfarland v., 187 U. S. 339 ; 47 L. Ed. 159 ; 33 S. Ct. 105. Brown v. Mclntire, 7 App. D. C. 435 ; 34 W. L. R. 54. Brown, Montgomery v., 35 App. D. C. 490 ; 33 W. L. R. 468. Brown v. Ohio Nat'l Bank, 18 App. D. C. 598; 29 W. L. R. 819. Cited in 19 App. D. C. 356; 26 App. 157. Brown v. Petersen, 35 App. D. C. 359 ; 33 W. L. R. 310. Cited in 37 App. D. C. 334. Brown, Prindle v., 24 App. D. C. 114. Brown (U. S. ex rel) v. Root, 38 W. L. R. 787. Brown (U. S.ex rel.) v. Root, 18 App. 239; 39 W. L. R. 479. Brown, Rousseau v., 31 App. 73. Brown v. Savings Bank, 28 App. D. C. 351 ; 34 W, L. R. 800. Brown v. Slater, 33 App. D. C. 51 ; 33 W. L. R. 18. Cited in 37 App. D. C. 205. Brown, Travers v., 14 App. 34. Brown v. Waring, 1 App. D. C. 378 ; 31 W. L. R. 746. Brown v. Washington & Georgetown R. R. Co., 11 App. 37; 35 W. L. R. 404. Browning, Chamberlain v., 14 App. 389. Dismissed in 177 U. S. 605. Browning v. Kirk, 3 App. D. C. 80; 32 W. L. R. 273. See Butler v. Strong. Browning, Luger v., 31 App. 301. Browning v. Nat'l Capital Bank, 13 App. 1 ; 36 W. L. R. 357. Cited in 19 App. D. C. 490. Browning, Neely Electric C. & S. Co. v., 35 App. D. C. 84; 33 W. L. R. 153. Bryan v. Abert, 3 App. D. C. 180 ; 22 W. L. R. 397. Cited in 37 App. D. C. 500. Bryan, Cooksey v., 3 App. D. C. 557 ; 22 W. L. R. 353, 256. Bryan v. Curtis, 26 App. D. C. 95; 33 W. L. R. 530; 35 W. L. R. 34; 36 W. L. R. 14 ; 30 App. D. C. 334. Bryan v. Harr, 31 App. D. C. 190 ; 31 W. L. R. 142. Bryan v. May, 9 App. 383 ; 24 W. L. R. 758. Cited in 16 App. D. C. 556 ; 17 lb. 429 ; 19 lb. 115. Bryan, May v., 16 App. 556 ; 28 W. L. R. 618. Bryan, May v., 17 App. 392 ; 38 W. L. R. 618. Bryan, Nat'l Capital Bank v., 30 App. 26 ; 30 W. L. R. 275. Bryan, Ofenstein v., 20 App. 1 ; 30 W. L. R. 370. Bryant v. District of Columbia Dental Society, 36 App. D. C. 461; 34 W. L. R. 19. Bryant, In re, 9 App. 447 ; 24 W. L. R. 826. Bryant, Manogue v., 15 App. 245 ; 37 W, L. R. 478. xviii Tablu of Cases. Buchanan-Anderson-Nelson Co. v. Breen & Kennedy, 27 App. D. C. 573; 1906 C. D. 750; 134 O. G. 322. Buck, Brainard v., 16 App. 595; 28 W. L. R- 585. Affirmed in 184 U. S. 99; 46 L. Ed. 449. Buck Stove & Range Co. v. American Federation of Labor, 35 W. L. R. 797. Buckey, Dowling v., 26 App. D. C. 266 ; 33 W. L. R. 774. Buckley, Dowling v., 27 App. D. C. 205 ; 34 W. L. R. 286. Buffalo Pitts Co. (U. S. ex rel.) v. Duell, 28 W. L. R. 789. Buhoup, Hien v., 11 App. 293 ; 25 W. L. R. 686. Building & Loan Assn., Armstrong v., 15 App. D. C. 1 ; 27 W. L. R. 351. Building & Loan Assn. v. Fiske, 20 App. 514; 30 W. L. R. 761. Building & Loan Assn. v. Olmstead, 16 App. 387 ; 28 W. L. R. 409. Bundy v. United States ex rel. Darling, 25 App. D. C. 459; 33 W. L. R. 434. Bunten v. American Security & Trust Co., 25 App. D. C. 226 ; 33 W. L. R. 247. Burch V. Baltimore & Potomac R. R. Co., 3 App. D. C. 346; 22 W. L. R. 401. Burdette, National Express & Transp. Co. v., 7 App. D. C. 551 ; 24 W. L. R. 88. Burgdorf, District of Columbia v., 6 App. D. C. 465 ; 23 W. L. R. 354. Burgdorf, District of Columbia v., 7 App. D. C. 405; 24 W. L. R. 21. Cited in 8 App. D. C. 392. Burgdorf, United States, to use of Vermont Marble Co., v., 13 App. 506. Burgdorf, United States, to use of Vermont Marble Co., v., 16 App. D. C. 140. Appeal dismissed 187 U. S. 654. Burge V. United States, 26 App. D. C. 524 ; 34 W. L. R. 210. BurVhart, Demonet v., 23 App. D. C. 308; 32 W. L. R. 244. Burke V. Claughton, 6 App. D. C. 350; 23 W. L. R. 393. Burke v. Claughton, 12 App. 182 ; 26 W, L. R. 231. Burke v. Robinson, 29 W. L. R. 654. Burkholder, Richards v., 29 App. D. C. 485 ; 128 O. G. 2533. Burnett, Smith v., 10 App. 469; 25 W. L. R. 247. Affirmed in 173 U. S. 430; 43 L. Ed. 756; 19 S. Ct. 442. Burns, Hayes v., 25 App. D. C. 342 ; 33 W. L. R. 300. Appeal dismissed in 201 U. S. 650. Burr V. Ford, 5 App. D. C. 36; 22 W. L. R. 811. Cited in 15 App. D. C. 27. Burr, Leach v., 17 App. 128 ; 28 W. L. R. 782. Affirmed in 188 U. S. 510. Burritt, Hewett v., 3 App. D, C. 229 ; 22 W. L. R. 304. Burson v. Vogel, 29 App. D. C. 388 ; 131 O. G. 942. Burt, Matthes v., 24 App. D. C. 265. Burton v. Bentley, 14 App. 471. Busch V. Jones, 16 App. D. C. 23; 28 W. L. R. 535. Reversed in 184 U. S. 598. Busch V. Jones, 184 U. S. 598 ; 46 L. Ed. 707 ; 22 S. Ct. 511. Cited in 122 Fed. R. 866; 124 Fed. R. 83. Busell, Glidden v., 5 App. D. C. 480; 23 W. L. R. 485. Bush, Consumers' Brewing Co. v., 19 App. 588; 30 W. L. R. 307. Bush V. District of Columbia, 1 App. D. C. 1 ; 21 W. L. R. 371. Butler V. Frazee, 25 App. D. C. 392 ; 33 W. L. R. 387. Butler V. Kirk, 3 App. D. C. 80 ; 23 W. L. R. 272. See Butler v. Strong. Butler, Smith v., 15 App. 345; 27 W. L. R. 770. Butler V. Strong, 3 App. D. C. 80; 22 W. L. R. 272. Butterfield, In re, 23 App. D. C. 84. Butterworth, United States ex rel. Bernardin v., 169 U. S. 600; 42 L. Ed. 873; 18 S. Ct. 441. Byers, Boogher v., 10 App. 419 ; 25 W. L. R. 205. Byram v. United States, 25 App. D. C. 546 ; 33 W. L. R. 458. Byrne v. Morrison, 25 App. D. C. 73 ; 33 W. L. R. 315. Table ot" Cases. xix Byrnes, Macfarland v., 19 App. 531 ; 30 W. L. R. 337. Dismissed in 187 U. S. 346. Cabell, Waddill, to use of Christian v., 31 W. L. R. 265. Cable Co. v. Washington & Georgetown R. R. Co., 8 App. D. C. 478; 24 W. L. R. 796. Cadarr, United States v., 24 App. D. C. 143 ; 32 W. L. R. 486. Reversed in 197 U. S. 475. Cadick, Balster v., 29 App. D. C. 405 ; 35 W. L. R. 375. Cain V. Chesapeake & Pot. Telephone Co., 3 App. D. C. 546; 33 W. L. R. 413. Cain V. Park, 14 App. 42 ; Cited in 15 App. D. C. 109 ; 23 Ih. 375 ; 35 Ih. 237 Cahill v. District of Columbia, 26 App. D. C. 163 ; 33 W. L. R. 759. Cahn, Belt & Co., In re, 27 App. D. C. 173 ; 1906 C. D. 627 ; 122 O. G. 354. Cake, The Richmond v., 1 App. D. C. 447 ; 21 W. L. R. 819, Cake V. Mohun, 164 U. S. 311. Affirming 3 App. D. C. 60. Cake V. Woodbury, 3 App. D. C. 60; 33 W. L. R. 336. Affirmed in 164 U. S. 311. Callan v. District of Columbia, 16 App. D. C. 371; 28 W. L. R. 375; 24 App. D. C. 460. Galium V. District of Columbia, 15 App. D. C. 539 ; 28 W. L. R. 61. Camden Iron Works, District of Columbia v., 15 App. D. C. 198; 37 W. L. R. 462. Affirmed in 181 U. S. 453. Cammack v. Carpenter, 3 App. D. C. 219; 22 W. L. R. 302. Cited in 14 App. D. C. 213; 15 Ih. 408; 175 U. S. 417. Campbell, Anglo-American Savings & Loan Assn. v., 13 App. 581. Campbell v. Dexter, 17 App. D. C. 454; 39 W. L. R. 61. Campbell v. District of Columbia, 19 App. D. C. 131; 30 W. L. R. 42. Cited in 20 App. D. C. 486, 488; 22 App. D. C. 146. Campbell, Emack v., 14 App. D. C. 186 ; 27 W. L. R. 314. Campbell, Northwest Eckington Improvement Co., 38 App. D. C. 483 ; 35 W. L. R. 63. Campbell v. Porter, 24 W. L. R. 294. Campbell v. Strong, 3 App. D. C. 80; 23 W. L. R. 372. See Butler v. Strong. Capital Construction Co., Holtzman v., 33 W. L. R. 531. Capital Construction Co., Holtzman v., 27 App. D. C. 125 ; 34 W. L. R. 222. Capital Traction Co., Barstow v., 39 App. D. C. 363 ; 35 W. L. R. 338. Capital Traction Co. v. Brown, 39 App. D. C. 473 ; 35 W. L. R. 306. Capital Traction Co. v. Hof, 34 W. L. R. 646 ; 174 U. S. 4, 40. Capital Traction Co., Hof v. See United States ex rel. Brightwood Ry. Co. V. O'Neal. Capital Traction Co. v. Hof, 174 U. S. 43 ; L. Ed. 873 ; 19 S. Ct. 580. Af- firming 10 App. D. C. 205. Cited in 195 U. S. 79 ; 197 U. S. 526 ; 114 Fed. Rep. 624; 128 Fed. Rep. 138. Capital Traction Co. v. Lusby, 12 App. 395 ; 26 W. L. R. 163. Capital Traction Co., Kohner v., 22 App. D. C. 181 ; 31 W. L. R. 443. Capital Traction Co. v. Offutt, 17 App. D. C. 292 ; 29 W. L. R. 18. Capital Traction Co. v. Rockwell, 17 App. D. C. 369 ; 29 W. L. R. 41. Capital Traction Co., Rockwell v., 25 App. D. C. 98 ; 33 W. L. R. 338. Capital Traction Co. v. Shortsleeves, 35 W. L. R. 4; 28 App. D. C. 365. Carotala v. United States, 34 App. D. C. 339. Cited in 26 App. D. C. 303. Carter v. McDermott, 35 W. L. R. 158. Car Company, Washington & Georgetown R. R. Co. v., 5 App. D. C. 524; 33 W. L. R. 341, 246, Cardozo v. Baird, 35 W. L. R. 15. Dismissed in 30 App. D. C. 86; 35 W. L. R. 462. Carey v. Carey, 8 App. D, C, 538 ; 34 W. L. R. 505. Carlisle v. United States ex rel. Waters, 7 App. D. C. 517 ; 24 W. L. R. 101. Carlisle v. United States ex rel. Miles Planting & Manufacturing Co. v., 5 App, D, C. 138; 23 W, L, R, 33, Carlton Importation Co,, Gaines v., 37 App. D. C. 571. XX Table oif Cases. Carpenter, Cammack v., 3 App. D. C. 219 ; 32 W. L. R. 303. Carpenter, Hauptman v., 16 App. D. C. 534; 33 W. L. R. 567. Carpenter, In re, 34 App. D. C. 110. Carpenter, Raub v., 17 App. D. C. 505 ; 29 W. L. R. 123. Affirmed in 187 U. S. 159. Carper, Munson v., 79 O. G. 160; 1897 C. D. 359. Carrington, Baltimore & Potomac R. R. Co. v., 3 App. D. C. 101; 33 W. L. R. 284. Carroll, Harlow v., 6 App. D. C. 138 ; 23 W. L. R. 450 Carroll v. Reidy, 5 App. D. C. 59 ; 23 W. L. R. 820. Cited in 9 App. D. C. 415. Carroll's Heirs, Conroy v., 34 W. L. R. 517. Carson, In re, 26 W. L. R. 153. Carter, Arnold v.. 19 App. D. C. 259 ; 30 W. L. R. 75. Carter, Brightwood Ry. Co. v., 13 App. 155. Carter Hardware Co., Bond v., 15 App. 73; 37 W. L. R. 450. Carter v. McDermott, 35 W. L. R. 158 ; 39 App. D. C. 145. Cartford (U. S. ex rel.) v. Garfield, 36 W. L. R. 87. Carty v. Kellogg, 7 App. D. C. 542; 34 W. t. R. 106. Cited in 14 App. D. C. 46 ; 17 lb. 561 ; 19 lb. 384. Carusi v. Savary, 6 App. D. C. 330; 23 W. L. R. 374. Caruthers, Roller v. 5 App. D. C. 368 ; 23 W. L. R. 151, 169. Carver v. Hall, 3 App. D. C. 170 ; 32 W. L. R. 290. Carver v. O'Neal, 11 App. 353 ; 25 W. L. R. 704. Carver, Watson v., 27 App. D. C. 555 ; 34 W. L. R. 483. Casey v. The National Union, 3 App. D. C. 510 ; 33 W. L. R. 433. Cassidy v. Roberts, 29 W. L. R. 76. Cement & Mfg. Co. v. Wheatley, 9 App. 334 ; 34 W. L. R. 743. Cemetery, District of Columbia v., 5 App. D. C. 497 ; 33 W. L. R. 162. Cemetery, German Evangelical Society v., 3 App. D. C. 310; 33 W. L. R. 133. Central Construction Co., Ohio Nat'l Bank v., 17 App. 534; 39 W L R. 107. Central Dispensary & Emergency Hospital, Leitch v., 6 App. D. C. 247 ; 23 W. L. R. 305. Central National Bank, Bell v., 28 App. D. C. 580 ; 35 W. L. R. 69. Central National Bank, Fields v., 10 App. 1; 25 W. L. R. 82. Chamberlain v. Browning, 14 App. 389. Dismissed in 177 U. S. 605. Chamberlain v. Edmonds, 18 App. D. C. 332 ; 39 W. L. R. 395. Cited in 21 App. D. C. 450. Chamberlain, Keane v., 14 App. 84; 27 W. L. R. 98. Chambers, United States v., 18 App. 287 ; 29 W. L. R. 403. Chandler & Taylor Co. v. Norwood, 14 App. 357 ; 27 W. L. R. 166. Cited in 37 App. D. C. 310. Chan Gun v. United States, 9 App. 390 ; 24 W. L. R. 764. Chapman (U. S. to use of) v. City Trust, Safe Deposit & Security Co., 31 W. L. R. 396. Chapman (U. S. to use of) v. City Trust, S. D. & Security Co., 23 App. D. C. 153; 33 W. L. R. 53. Chapman v. Dismer, 14 App. 446 ; 37 W, L. R. 338. Chapman, District of Columbia v., 35 App. D. C. 95 ; 33 -W. L. R. 332. Chapman, Hansel v., 2 App, D. C. 361 ; 23 W. L. R. 140. Chapman, In re, 156 U. S. 211 ; 39 L. Ed. 401 ; 15 S. Ct. 331. Chapman v Natalie Anthracite Coal Co., 11 App. 386; 25 W. L. R. 811. Cited in 13 App. D. C. 388; 15 lb. 362. Chapman, Ridenour v., 35 W. L. R. 719. Chapman v. United States, 5 App. D. C. 122 ; 23 W. L. R. 17. Cited in 11 App. D. C. 527; 16 lb. 433. Chapman v. United States, 8 App. D. C. 303; 24 W. L. R. 251. Cited in 12 App. D. C. 36. Chapman, United States v., 164 U. S. 436; 41 L. Ed. 504; 17 S. Ct. 76. Table op Cases. xxi Chapman (U. S. to use of) v. City Trust, Safe Deposit & Security Co., 194 U. S. 631. Chapman, Washington, Alexandria & Mt. Vernon Ry. Co. v., 26 App. D. C. 472; 34 W. L. R. 30. Chappell V. O'Brien, 23 App. 190; 31 W. L. R. 459. "Charles Macalester", Columbia Nat'l Sand Dredging Co. v., 34 W. L. R. 243. Chase, La Flare v., 8 App. D. C. 83 ; 24 W. L. R. 232. Chase v. United States, 7 App. 149. Cited in 14 App. D. C. 104; 15 Ih. 452 ; 16 /b. 360. Cheneau, Appeal of. In re, 5 App. D. C. 197 ; 23 W. L. R. 107. Cherney v. Clauss, 35 App. D. C. 15. Cited in 27 App. D. C. 291. Cherokee Nation v. Hitchcock, 187 U. S. 294; 47 L. Ed. 183; 33 S. Ct. 115. Affirming 20 App. D. C. 185. Cited in 187 U. S. 568 ; 188 U. S. 439 ; 193 U. S. 136 ; 194 U. S. 388 ; 197 U. S. 497 ; 129 Fed. R. 243. Cherry v. Whalen, 25 App. D. C. 537 ; 33 W. L. R. 485. Chesapeake Beach Ry. Co., Boering v., 20 App. 500; 30 W. L. R. 742. Affirmed in 193 U. S. 442. Chesapeake Beach Ry. Co. v. Washington, Potomac & Ches. R. R. Co., 23 App. D. C. 587; 33 W. L. R. 309. Affirmed in 199 U. S. 247. Chesapeake & Columbia Investment Co., Stone i'., 15 App. 585 ; 28 W. L. R. 137. Chesapeake & Ohio R. R. Co. v. Beekman, 30 W. L. R. 715. Chesapeake & Ohio R. R. Co., Howard v., 11 App. 300; 35 W. L. R. 750, 759. Chesapeake & Ohio R. R. Co. v. Howard, 14 App. 262 ; 27 W. L. R. 146. Affirmed in 178 U. S. 153. Cited in 25 App. D. C. 98. Chesapeake & Ohio Ry. Co. v. Patton, 33 App. D. C. 113 ; 33 W. L. R. 85. Cited in 26 App. D, C. 503. Chesapeake & Potomac Telephone Co., Cain v., 3 App, D. C. 546; 23 W. L. R. 413. Chesapeake & Potomac Telephone Co. v. Dempsey. See District of Co- lumbia v. Dempsey. Chesapeake & Potomac Telephone Co., Manning v., 18 App. 191 ; 39 W. L. R. 343. Reversed in 186 U. S. 338. Chesapeake & Potomac Telephone Co. v. Manning, 186 U. S. 238; 46 L. Ed. 1144; 22 S. Ct. 881. Reversing 18 App. D. C. 19. Cited in 194 U. S. 37. Chesapeake & Potomac Telephone Co., Manning v., 36 W. L. R. 499. Chesapeake & Potomac Telephone Co., Manning v., 28 W. L. R. 97. Chesapeake & Potomac Telephone Co., Manning v., 33 W. L. R. 699. Chesapeake & Potomac Telephone Co., Nolan v., 29 W. L. R. 24. Chester v. Morgan, 11 App. 435 ; 25 W. L. R. 767. Cited in 17 App. D. C. 530; 26 App. D. C. 266. Chew, Tyrer v., 7 App. D. C. 175 ; 23 W. L. R. 721. Chicago Business College (U. S. ex rel.) v. Payne, 30 W. L. R. 410. Chicago Business College (U. S. ex rel.) v. Payne, 20 App. 606; 30 W. L. R. 812. Chisholm v. Cissell, 12 App. 180 ; 26 W. L. R. 123. Chisholm v. Cissell, 13 App. 203 ; 26 W. L. R. 483. Christensen v. ElHs, 17 App. D. C. 498. Cited in 18 App. D. C. 401; 21 App. D. C. 64; 27 App. D. C. 567. Christensen v. Noyes, 15 App. D. C. 94. Cited in 34 App. D. C. 270. Christian (Waddill to use of) v. Cabell, 21 W. L. R. 265. Chunn v City & Suburban Ry. 23 App. D. C. 551 ; 32 W. h- R. 344. Cited in 25 App. D. C. 1. Reversed in 207 U. S. 302. Church V. Fidelity & Deposit Co., 13 App. 346 ; 26 W. L. R. 676. Church, Metropolitan R. R. Co. v., 11 App. 57; 35 W. L. R. 406. Af- firmed in 174 U. S. 46. Church V. United States ex rel. Fidelity & Deposit Co., 13 App. 364. Cited in 25 App. D. C. 459. Cincell v. Darr, 32 W. L. R. 746. xxii Tabi^e of Cases. Cissell, Chisholm v., la App. 180; 26 W. L. R. 133. Cissell, Chisholm v., 13 App. 203 ; 26 W. L. R. 482. Cissell V. Johnson, 4 App. D. C. 335 ; 22 W. L. R. 730. Cited in 11 App. D. C. 243 ; 13 Ih. 47. Cissell, Smith v., 23 App. 318 ; 31 W. L. R. 475. Citizens' Bank & Trust Co., Howard v., 12 App. 233 ; 36 W. L. R. 101. City & Suburban Ry., Chunn v., 33 App. D. C. 551; 33 W. L. R. 344. Reversed in 207 U. S. 302, City & Suburban Ry. Co., Svedborg, 20 App. D. C. 543 ; 30 W. L. R. 823. Cited in 26 App. 472. Affirmed in 194 U. S. 201. City Trust, Safe Deposit & Surety Co., United States, to use of Briscoe v., 33 App. D. C. 155; 33 W. L. R. 53. City Trust, Safe Deposit & Surety Co., United States to use of Chapman, v., 31 W. L. R. 396. City Trust, Safe Deposit & Surety Co., United States to use of Chapman v., 23 App. D. C. 153; 32 W. L. R. 53. Peltition for certiorari denied, 194 U. S. 631. City Trust, Safe Deposit & Surety Co., Standard Oil Co. v., 21 App. 369. City Trust, Safe Deposit & Surety Co., United States to use of Standard Oil Co. v., 30 W. L. R. 778. Clabaugh, United States ex rel. Mulvihill v., 21 App. 440 ; 31 W. L. R. 210. Clagett, Washington Market Co. v., 19 App. 12 ; 29 W. L. R. 807. Clapp V. Macfarland, 20 App. D. C. 3S4; 30 W. L. R. 392. Appeal dis- missed in 191 U. S. 564. Clark V. Barber, 21 App. D. C. 374 ; 31 W. L. R. 94. Clark, Dancy v., 34 App. D. C. 487 ; 33 W. L. R. 18. Clark V. Gerstley, 36 App. D. C. 305 ; 33 W. L. R. 758. Affirmed in 204 U. S. 504; 35 W. L. R. 501." Clark V. Harmer, 5 App. D. C. 114; 23 W. L. R. 120. Cited in 24 App. D. C. 524. Clark V. Harmer, 9 App. 1 ; 24 W. L. R. 345. Clark, Hendley v., 8 App. D. C. 165 ; 24 W. L. R. 197. Clark V. Mathewson, 7 App. D. C. 382 ; 24 W. L. R. 41. Clark V. Mutual Reserve Fund Life Assn., 14 App. 154; 37 W. L. R. 114. Cited in 15 App. D. C. 443. Clark V. Mutual Reserve Life Ins, Co., 33 App. D. C. 546 ; 33 W. L. R. 365. Clark V. Read, 12 App. 343 ; 26 W. L. R. 183. Cited in 31 App. D. C. 336. Clark V. Roller, 23 App. D. C. 453 ; 33 W. L. R. 460. Modified and af- firmed in 199 U. S. 541. Clark V. United States, 19 App, D. C. 395 ; 30 W. L. R. 70. Clark, United States Playing Card Co. v., 132 O. G, 681, Clark V. Walter T. Bradley Coal L. & C. Co., 6 App. D, C. 437; 23 W. L. R. 419. Cited in 9 App. D. C. 390 ; 16 App. D, C, 185 ; 23 Ih. 545. Clarke, Roller v., 19 App. 539; 30 W, L, R. 323. Classen, Crandell v., 25 App. D, C, 5 ; 33 W. L. R. 130, Claughton, Burke v., 6 App, D. C. 350; 23 W. L. R. 393. Claughton, Burke v., 12 App. 182 ; 26 W. L. R. 231. Clauss V. Cherney, 25 App. D. C. 15. Cleal, McCormick v., 12 App, 335. Cleaveland v. Wright, 79 O, G, 866 ; 1897 C, D, 413, Cleland v. District of Columbia, 35 W. L. R. 278. Clements v. District of Columbia, 23 App. D. C. 372. Clements v. Mutersbaugh, 27 App. D, C, 165 ; 34 W, L, R. 373. Clements v. Potomac Electric Power Co., 26 App. D. C. 482; 34 W. L. R, 158, Clerks' Investment Co. v. Sydnor, 19 App. D. C. 89; 30 W. L. R. 6. Cited in 33 App. D. C. 132. Cleveland v. Wilkin, 27 App, D, C, 311; 1906 C, D, 703; 123 O, G, 1286. Clifford, Jackson v., 5 App, D, C 312 ; 23 W, L, R. 134. Closson V. United States ex rel. Armes, 7 App, D, C, 460; 24 W, L, R, 71. Clunies, /» re, 38 App. D. C. 18; 1906 C. D. 740; 123 O, G. 3631. Coal Co., Chapman v., 11 App. 386 ; 25 W. L. R. 811. Table op Cases. xxiii Coal & Coke Co., Randle v., 15 App. 357 ; 37 W. L. R. 773. Coale, District of Columbia v., 30 App. D. C. 143 ; 35 W. L. R. 465. Cobb V. Goebel, 23 App. D. C. 75. Coblens, Davis v., 13 App. 51. Affirmed in 174 U. S. 719. Cochran v. Blout, 161 U. S. 350 ; 34 W. L. R. 169. Coffee V. Guerrant, 3 App. D. C. 497 ; 22 W. L. R. 461. Cited in 14 App. D. C. 41 ; 17 Ih. 343 ; 18 /&. 138 ; 24 Ih. 141. Cohen V. Cohen, 1 App. D. C. 340; 21 W. L. R. 663. Cohen, Dodge v., 14 App. 582 ; 37 W. L. R. 334. Coit, Estate of In re, 3 App. D. C. 246 ; 33 W. L. R. 319. Colbert V. Baetjer, 4 App. D. C. 416; 33 W. L. R. 763. Cited in 6 App. D. C. 383 ; 13 Ih. 366 ; 13 lb. 470. Colbert, Speer v., 31 W. L. R. 630. Colbert V. Speer, 34 App. D. C. 187; 32 W. L. R. 678. Affirmed in 300 U. S. 130. Colburn v. Grant, 16 App. D. C. 107 ; 28 W. L. R. 245. Affirmed in 181 U. S. 601. Colegrove, United States v., 8 App. D. C. 255; 24 W. L. R. 367. Coleman, France v., 29 App. D. C. 286; 35 W. L. R. 193. Dismissed in 307 U. S. 601. Colhoun V. Hodgson, 5 App. D. C. 21 ; 23 W. L. R. 810. Cited in 10 App. D. C. 155 ; 14 Ih. 331 ; 37 Ih. 319. CoUaday, Palmer v., 18 App. 436 ; 29 W. L. R. 533. College V. Payne, 20 App. 606 ; 30 W. L. R. 812. Collins V. McClair, 29 App. D. C. 354; 35 W. L. R. 343. Collins, Metropolitan R. R. Co. v., 1 App. D. C. 383 ; 21 W. L. R. 811. Colonna v. Alton, 23 App. D. C. 396 ; 33 W. L. R. 165. Colton, In re, 31 App. 17. Columbia, The, James Clark Co. v., 26 App. D. C. 85 ; 33 W. L. R. 519. Columbia Brick Co. v. District of Columbia, 1 App. D. C. 351; 21 W. L. R. 739. Cited in 18 App. D. C. 539. Columbia Heights Land Co., Daniel v., 9 App. 483 ; 25 W. L. R. 6. Columbia National Bank v. MacKnight, 29 App. D. C. 580; 35 W. L. R. 484. Columbia National Sand Dredging Co. v. Miller, 20 App. D. C. 345; 30 iW. L. R. 469. Columbia National Sand Dredging Co. v. Morton, 28 App. D. C. 288; 34 W. L. R. 766. Columbia National Sand Dredging Co. v. Steamboat "Charles Macalester,'' 34 W. L. R. 343. Columbia Phonograph Co., Whitson v., 18 App. 565 ; 29 W. L. R. 804. Columbia Ry. Co., Barrett v., 30 App. 381 ; 30 W. L. R. 549. Columbia Ry. Co., Cruit v., 20 App. D. C. 521; 30 W. L. R. 776. Cited in 20 App. D. C. 552. Columbia Ry. Co., Hawley v., 25 App. D. C. 1 ; 33 W. L. R. 150. Columbia Ry. Co., Hayzel v., 19 App. 359; 30 W. L. R. 198. Columbia Typographical Union, Adams v., 34 W. L. R. 227. Columbian Correspondence College v. Wynne, 25 App. D. C. 149 ; 33 W. L. R. 230. Columbian University v, Taylor, 25 App. D. C. 134; 33 W. L. R. 181. Cited in 36 App. D. C. 508. Colville V. American Security & Trust Co., 10 App. 56; 35 W. L. R. 67. Reversed in 173 U. S. 383. Commercial Fire Ins. Co., Brown v., 21 App. 325 ; 31 W. L. R. 206. Commercial Fire Ins. Co., Duval v., 24 W. L. R. 358. Commercial National Bank of Chicago v. Consumers' Brewing Co., 16 App. 186 ; 28 W. L. R. 330, 751. Cited in 17 App. D. C. 101. Commercial National Bank of Chicago v. Consumers' Brewing Co., 17 App. 100; 38 W. L. R. 751. Commission Co. v. Moore, 13 App. 78. Computing Scale Co. of America v. Automatic Scale Co., 26 App. D. C. 338; 33 W. L. R. 789. Affirmed in 304 U. S. 609. Jcxiv Tablb of Cases. Condemnation of Lands, In re, 24 W. L. R. 65. Conger, Humphrey v., 7 App. D. C. 23 ; 23 W. L. R. 425. Congregational Church v. Bright, 34 W. L. R. 718. Conlin w. Coveney, 30 W. L. R. 150. Conlin, Coveney v., 20 App. 303 ; 30 W. L. R. 467. Conlon, St. Clair v., 12 App. 161 ; 26 W. L. R. 165. Conners Paint Mfg. Co., In re, 27 App. D. C. 389. Connor v. Meany, 8 App. D. C. 1 ; 24 W. L. R. 235. Conroy, Thompson v., 8 App. D. C. 145 ; 24 W. L. R. 163. Conroy v. Unknown Heirs of Carroll, 34 W. L. R. 517. Consaul v. Cummings, 24 App. D. C. 36; 32 W. L. R. 470. Consaul, Roberts v., 24 App, D. C. 551 ; 33 W. L. R. 98. Consumers' Brewing Co. v. Bush, 19 App. D. C. 588 ; 30 W. L. R. 307. Consumers' Brewing Co., Commercial Nat'l Bank of Chicago v., 16 App. 186; 28 W. L. R. 320, 751. Consumers' Brewing Co., Commercial Nat'l Bank of Chicago v., 17 App. 100; 28 W. L. R. 751. Consumers' Brewing Co. v. Tobin, 18 App. D. C. 584 ; 29 W. L. R. 841. Consumers' Brewing Co. v. Tobin, 19 App. D. C. 353; 30 W. L. R. 170. Cited in 26 App. D. C. 157. Contracting Co. v. Lament, 2 App. D. C. 532; 22 W. L. R. 173. Af- firmed in 155 U. S. 303. Construction Co. v. Baker, 19 App. 1; 29 W. L. R. 783. Construction Co., Holtzman v., 33 W. L. R. 531. Construction Co., Hughes v., 24 App. D. C. 90; 32 W. L. R. 393. Construction Co., Mott Iron Works v., 17 App. 584; 29 W. L. R. 187. Construction Co., Ohio Nat'l Bank v., 17 App. 524 ; 29 W. L. R. 107. Conway, Matthai v., 2 App. D. C. 45; 22 W. L. R. 39. Cook, McBerty v., 16 App. 133. Cook, Merchant v., 7 App. D. C. 391 ; 24 W. L. R. 34. Cook, Simms v., 154 U. S. 517. Cook, Smith v., 10 App. D. C. 487 ; 25 W. L. R. 251. Cook V. Speare, 13 App. 446; 26 W. L. R. 744. Cited in 24 App. D. C 444. Cook V United States, 26 App, D. C. 427 ; 34 W. L. R. 550. Cooke, Jones v., 25 App. D. C. 529. Cooper, Mann v., 2 App. D. C. 226; 32 W. L. R. 98. Cooper V. Olcott, 1 App. D. C. 123 ; 21 W. L. R. 616. Cooksey v. Bryan, 2 App. D. C. 557 ; 22 W. L. R. 252, 256. Copeland, Robinson v., 24 App. D. C, 68 ; Coratola v. United States, 24 App. D. C. 229 ; 32 W. L. R. 711. Corbett v. Pond, 10 App. 17 ; 25 W. L. R, 33. Corcoran v. Renehan, 32 W. L. R. 806 ; 24 App. D. C. 411. Corcoran v. Robinson, 24 App. D. C. 411 ; 32 W. L. R. 806. Corner v Kyle, 24 App. D. C. 291. Cornwell, Mehler v., 3 App. D. C. 93 ; 22 W. L. R. 238. Corry v. McDermott, 25 App. D. C. 305. Cortelyou v. Bates & Guild Co., 27 App. D. C. 301 ; 34 W. L. R. 567. Cortelyou v. Houghton, 27 App. D. C. 188 ; 34 W. L. R. 190. Cited in 37 App. D. C. 301. Modified in 308 U. S. 149. Cortelyou, Reinach v., 28 App. D. C. 570; 35 W. L. R. 94. Cortelyou, Romero v., 26 App. D. C. 298; 34 W. L. R. 97. Writ of error dismissed in 201 U. S. 649. Cortelyou, United States ex rel. Parish v., 30 App. D. C. 45 ; 35 W. L. R. 430. Cortelyou, United States ex rel Reinach v., 28 App. D. C. 570; 35 W L R. 94. Cosey, Smith ., 26 App. D. C. 569 ; 34 W. L. R. 271. Cosgrove, Washington Brewing Co. v., 34 W. L. R. 68, 133. Costello, Bokel, Gwynn, McKenney Co. v., 22 App. 81; 31 W. L. R. 374 Costello V. Palmer, 20 App. D. C. 210 ; 30 W. L. R. 402. Cited in 23 App D. C. 138 ; 26 lb. 449. Costello, Schwartz v., 11 App. 553; 36 W. L. R. 69. TabIve; of Cases. xxv Cottrell, Myers v., 25 W. L. R. 730. Coruch V. Barnett, 23 App. D. C. 446. Cited in 24 App. D. C. 466. Coughlin V. District of Columbia, 25 App. D. C. 251; 33 W. I,. R. 376. Cited in 25 App. D. C. 388 ; 26 App. D. C. 31. Coveney, Conlin v., 30 W. L. R. 150. Coveney v. Conlin, 20 App. D. C. 303; 30 W. L. R. 467. Cowan, Feinberg v., 29 App. D. C, 80 ; 128 O. G. 889. Cowardin, Sand Filtration Corporation v., 29 App. D. C. 571; 35 W. L. R. 366. Cowen, Frisbie v., 18 App. 381 ; 29 W. L. R. 510. Cowen V. Merriman, 17 App. D. C. 186; 28 W. L. R. 814. Cited in 20 App. D. C. 165, 166. Cowardin, Sand Filtration Co, v., 29 App. D. C. 571 ; 35 W. L. R. 366. Cox (U. S. ex rel.) v. Hitchcock, 19 App. 347; 30 W. L. R. 201. Cox, United States ex rel, Beal v., 14 App. 368 ; 27 W. L. R. 230. Craig V. Rowland, 10 App. 402; 25 W. L. R. 235. Cited in 19 App. D. C. 112. Craighill v. Lambert, 168 U. S. 611. Reversing 8 App. D. C. 185. Craighill v, Van Riswick, 8 App. D. C. 185; 24 W. L. R. 177. Reversed in 168 U. S. 611. Crain v. United States, 2 App. D. C. 549 ; 22 W. L. R. 208. Crandell v. Classen, 25 App. D. C. 5 ; 33 W. L. R. 130. Crandall v. Lynch, 20 App. D. C. 73 ; 30 W. L. R. 336. Cited in 30 App. D. C. 553. Crawford, Spalding v., 3 App. D. C. 361 ; 22 W. L. R. 371. Crawford v. United States, 30 App. D. C. 1; 35 W. L. R. 478, 495. Crenshaw v. McCormick, 19 App. D. C. 494 ; 30 W. L- R. 239. Creveling, In re, 35 App. D. C. 530. Critchfield v. Easterday, 36 App. D. C. 89; 33 W. L. R. 504. Critic Company, Weightman v., 4 App. D. C. 136 ; 32 W. L. R. 665. Croissant v. Empire State Realty Co., 39 App. D. C. 538 ; 35 W. L. R. 350. Cromwell, Gedge v., 19 App. 192. Crone, Bauer v., 26 App. D. C. 353. Cronemeyer, Lewis v. 29 App. D. C. 174. Cronemeyer, Williams v., 130 O. G. 300. Crook, McDermott v., 20 App. 465. Crook, Willard v., 21 App. 237 ; 31 W. L. R. 177. Cropley v. District of Columbia, 23 App. D. C. 332 ; 32 W. L. R. 97. Cropley v. Eyster, 9 App. 373 ; 24 W. L. R. 829. Cropley v. Vogeler, 2 App. D. C. 28 ; 22 W. L. R. 43. Cited in 13 App. D. C. 169 ; 18 App. D. C. 606 ; 26 lb. 157 ; 187 U. S. 320. Cropper, McLane v., 5 App. D. C. 276 ; 23 W. L. R. 115. Cropper v. McLane, 6 App. D. C. 119; 23 W. L. R. 262. Dismissed in 163 U. S. 682. Cited in 12 App. D, C. 131. Cropper, McLane v., 6 App. D. C. 432 ; 23 W. L. R. 403. Crosby v. Ridout, 27 App. D. C. 481 ; 34 W. L. R. 320. Croskey v. Atterbury, 9 App. 207; 34 W. L. R. 490. Cited in 13 App. D. C. 564. Crosman, Warick v. 36 W. L. R. 115. Cross V. Phillips, 14 App. 328. Cited in 24 App. D. C. 305, 469; 24 lb. 310, 472; 26 lb. 64, 354; 27 lb. 522. Cruit. Columbia Ry. Co., 20 App. 521 ; 30 W. L. R. 776. Cruit V. Owen, 21 App. D. C. 378 ; 31 W. L. R. 222. Cruit V. Owen, 25 App. D. C. 514 ; 33 W. L. R. 333. Crumbaugh, District of Columbia v., 13 App. 553 ; 27 W. L. R. 73. Crutchfield v. Hewett, 2 App. D. C. 373; 33 W. L. R. 127. CuUen V. Baltimore & Potomac R. R. Co., 8 App. D. C. 69; 24 W. L. R. 130. Cumberland, Baltimore & Potomac R. R. Co., 12 App. 598; 26 W. L. R. 306. Affirmed in 176 U. S. 233. Cumberland, Brennan Construction Co. v., 29 App. D. C. 554; 35 W. L. R. 354. xxvi Tabi<^ of Cases. Cumberland Hydraulic Cement & Mfg. Co. v Wheatley, 9 App. 334; 24 W. L. R. 743. Cummings, Baker v., 4 App. D. C. 330; 32 W. L. R. 681. Reversed in 169 U. S. 189. Cummings, Baker v., 8 App. D. C. 515; 24 W. L. R. 360. Reversed in 169 U. S. 189. Cummings v. Baker, 16 App. D. C. 1; 38 W. L. R. 131. Reversed in 181 U. S. 117; 48 L. Ed. 776. Cited in 183 U. S. 345; 114 Fed. R. 686. Cummings, Consaul v., 34 App. D. C. 36 ; 32 W. L. R. 470. Cummings, McKenzie v., 34 App. D. C. 137. Cummings, Moyers v., 17 App. 369; 39 W. L. R. 3. Cunningham, Harper v., 5 App. D. C. 303 ; 33 W. L. R. 100. Cunningham, Harper v., 8 App. D. C. 430 ; 34 W. L. R. 316. Cunningham, In re, 21 App. 29. Curry v. District of Columbia, 14 App. 423; 37 W. L. R. 286. Cited in 16 App. D. C. 284; 17 App. D. C. 265; 32 lb. 76, 78. Curtis, Bryan v., 36 App. D. C. 95 ; 33 W. L. R. 520 ; 35 W. L. R. 34 ; 36 W. L. R. 14; 30 App. D. C. 234. Curtis, Turnbull v., 37 App. D. C. 567. Cushman v. Lines, 10 App. 156 ; 35 W. L. R. 304. Cited in 14 App. D. C. 135 ; 16 lb. 566 ; 17 lb. 554. Czarra v. Board of Medical Supervisors, 34 App. D. C. 251; 33 W. L. R. 744. Cited in 35 App. D. C. 443. Czarra v. Board of Medical Supervisors, 35 App. D. C. 443; 33 W. L- R. 470. Dabney v. Dabney, 30 W. L. R. 356. Dabney v. Dabney, 30 App. D. C. 440; 30 W. L. R. 727. Daggett, Richardson v., 34 App. D. C. 440; 33 W. L. R. 24. / Daly, Earnshaw v., 1 App. 218 ; 31 W. L. R. 669. Daly V. Macfarland, 38 App. D. C. 552 ; 35 W. L. R. 81. Daly, Moran v. See Moran v Sullivan. Dana v. Rock Creek Ry. Co., 7 App. D. C. 482; 24 W. L. R. 24. Cited in 37 App. D. C. 105. Dancy v. Clark, 34 App. D. C. 487; 33 W. L. R. 18. Cited in 35 App. D. C. 459. Danenhower v. Ball, 8 App. D. C. 137 ; 24 W. L. R. 221. Cited in 10 App. D. C. 29. Dangerfield v. Williams, 26 App. D. C. 508 ; 34 W. L. R. 50. Daniel v. Columbia Heights Land Co., 9 App. 483 ; 25 W. L. R. 6. Daniels v. Solomon, 11 App. 163 ; 25 W. L. R. 436. Darden, Whittemore v., 9 App. 449; 25 W. L. R. 4. Darling, Bundy v., 25 App. D. C. 459 ; 33 W. L. R. 434. Darling, Washington Loan & Trust v., 31 App. 133 ; 31 W. L. R. 139. Darlington v. Turner, 24 App. D. C. 573; 33 W. L. R. 114. Reversed in 202 U. S. 195. Darneille v. Tuck, 33 W. L. R. 821. Darnell v. Grant, 16 App. D. C. 589. Darr, Cincell v., 32 W. L. R. 746. Dashiell v. Tasker, 31 App. D. C. 64. Cited in 24 App. D. C. 285. Dashiell v. Washington & Georgetown R. R. Co., 7 App. D. C. 507; 24 W. L. R. 40. Dashiell v. Washington Market Co., 10 App. 81 ; 25 W. L. R. 123. Davenport, In re, 23 App. 370. Davidge, Whiting v., 23 App. D. C. 156 ; 33 W. L. R. 114. Davidson v. Mitchell, 34 W. L. R. 309. Davidson v. Wight, 16 App. D. C. 371; 28 W. L. R. 303. Reversed in 181 U. S. 371. Cited in 35 App. D. C. 438. Davidson Mortgage Co., Osborne v., 8 App. D. C. 481 ; 34 W. L. R. 313. Davis V. Coblens, 13 App. 51. Affirmed in 174 U. S. 719. Cited in 15 App. D. C. 334; 23 lb. 581. Davis V. Coblens, 174 U. S. 43 L. Ed. 1147 ; 19 S. Ct. 832. Affirming 13 App. D. C. 51. Cited in 129 Fed. R. 682. Table op Cases. xxvii Davis V. Garrett, 28 App. D. C. 9 ; 1906 C. D. 734 ; 123 O. G. 1991. Davis V. Davis, 29 App. D. C. 258; 35 W. L. R. 206. Davis V. Harper, 14 App. 298; 27 W. L. R. 156. Davis V. Harper, 14 App. 463 ; 27 W. L. R. 494. Davis, Meyers v., 13 App. 361 ; 26 W. L. R. 710. Davis, Norfolk & Washington Steamboat Co. v., 12 App. 306; 26 W. L. R. 261. Davis V. Sanders, 25 App. D. C. 26 ; 33 W. L. R. 101. Davis, Sinsell v., 24 App. D. C. 318. Davis, Smith v., 33 App. 398 ; 31 W. L. R. 472. Davis V. United States, 16 App. D. C. 443; 28 W. L. R. 471. Cited in 24 App. D. C. 230. Davis, United States v., 18 App. 380 ; 29 W. L. R. 382. Davis, United States v., 18 App. D. C. 468; 29 W. L. R. 574. Cited in 30 App. D. C. 535 ; 34 App. D. C. 385 ; 26 App. D. C. 432. Davis Coal & Coke Co., Randle v., 15 App. 357 ; 27 W. L. R. 773. Dawson v. Waggaman, 23 App. D. C. 428 ; 32 W. L. R. 236. Writ of error dismissed in 199 U. S. 613. Day, United States v., 37 App. D. C. 458 ; 34 W. L. R. 355. Dean, Furman v., 34 App. D. C. 377. Dean, Hansen v., 29 App. D. C. 113 ; 139 O. G. 483. Dean, Lattig v., 25 App. D. C. 591. Deane v. Echols, 2 App. D. C. 522; 32 W. L. R. 233. Cited in 20 App. D. C. 379. Dearing, Holcomb v., 8 App. D. C. 398; 24 W. L. R. 336. DeArnaud v. Ainsworth, 34 App. D. C. 167; 32 W. L. R. 662. Writ of error dismissed in 199 U. S. 616. Decker, Marvel v., 13 App. 563. Decorating Co., Albaugh v., 14 App. 113 ; 27 W. L. R. 130. Deffer v. Kimball, 7 App. D. C. 499 ; 24 W. L. R. 82. De Forest v. United States, 11 App. 458; 26 W. L. R. 346. Cited in 14 App. D. C. 294; 23 lb. 358; 25 lb. 276. Delafield & Baxter Cement Co., Brown v., 1 App. D. C. 232; 21 W. L. R. 653. De Mitkiewicz, Wall v., 9 App. 109 ; 24 W. L. R. 408. Demonet v. Burkart, 23 App. D. C. 308 ; 32 W. L. R. 344. Dempsey v. District of Columbia, 1 App. D. C. 63 ; 21 W. L. R. 389. Dempsey, District of Columbia v., 13 App. 533 ; 37 W. L. R. 87. Dempsey, Chesapeake & Potomac Telephone Co. v. See District of Co- lumbia V. Dempsey. Dengel v. Brown, 1 App. D. C. 433 ; 31 W. L. R. 741. Denison, Lewis v., 2 App. D. C. 387 ; 22 W. L. R. 191. Denison v. Lewis, 5 App. D. C. 328; 23 W. L. R. 138, 218. Denton, In re, 12 App. 504. Depoilly v. Palmer, 28 App. D. C. 324; 35 W. L. R. 21. DeSchweinitz, Petrie v., 19 App. 386. DeVaughn v. DeVaughn, 3 App. D. C. 50; 22 W. L. R. 224. Affirmed in 165 U. S. 566. Cited in 35 App. D. C. 497, 514. DeVaughn v. Hutchinson, 165 U. S. 566 ; 41 L. Ed. 827 ; 17 S. Ct. 461. Af- firming 3 App. D. C. 50. Cited in 197 U. S. 243 ; 134 Fed. R. 211. De Wallace v. Scott, 15 App. D. C. 157. Cited in 17 App. D. C. 504; 19 App. D. C. 389; 21 App. D. C. 212. Dewey, Stovell v., 188 U. S. 354 ; 47 L. Ed. 463 ; 33 S. Ct. 415. Dewey, United States v., 188 U. S. 354 ; 47 L. Ed. 463 ; 23 S. Ct. 415. Dewey v. United States, 188 U. S. 254; 47 L. Ed. 463; 23 S. Ct. 415. Cited in 188 U. S. 288. Dewey Hotel Co. v. United States Electric Lighting Co., 17 App. D. C. 356; 29 W. L. R. 71. Dexter, Campbell v., 17 App. 454 ; 29 W. L. R. 61. Dexter v. Gordon, 11 App. 60; 25 W. L. R. 421. Cited in 18 App. D. C. 352. Dexter v. Lichliter, 24 App. D. C. 222 ; 32 W. L. R. 732. xxviii Table of Cases. De Yturbide (U. S. ex rel.) v. Metropolitan Club, 11 App. 180; 25 W. L. R. 463. Dickey v. Fleming, 12 App. 509. Cited in 14 App. D. C. 54. Dickinson, Jenner v., 25 App. D. C. 316. Dickinson, Thibodeau, 25 App. D. C. 316. Didzoneit, Richmond & Danville R. R. Co. v., 1 App. D. C. 482; 21 W. L. R. 824. Dietrich, District of Columbia v., 23 App. D. C. 577, 32 W. L. R. 360. Dilg, In re, 25 App. D. C. 9. Dismer, Chapman v., 14 App. 446 ; 27 W. L. R. 338. Distillery Co., Gottschalk Co. v., 7 App. D. C. 169; 23 W. L. R. 793. District of Columbia v. Allen, 15 App. D. C. 70; 27 W. L. R. 385. Af- firmed in 181 U. S. 402. Allman v., 3 App. D. C. 8 ; 22 W. L. R. 201. V. American Security & Trust Co., 29 App. D. C. 265; 35 W. L. R. 147. V. Armes, 8 App. D. C. 393; 24 W. L. R. 278. Cited in 167 U. S. 573 596. Army & Navy Club v., 8 App. D. C. 544; 24 W. L. R. 331. V. Ashton, 14 App. 571; 27 W. L. R. 399. Cited in 17 App. D. C. 421; 24 lb. 531. Bailey v., 4 App. D. C. 356; 22 W. L. R. 735. Bailey v.. 9 App. 360; 24 W. L. R. 745. Reversed in 171 U. S. 161. V. Baliey, 171 U. S. 161; 43 L. Ed. 118; 18 S. Ct. 868. Reversing 9 App. D. C. 360. Cited in 187 U. S. 270. V. Bailey. See Bailey v. District of Columbia. V. Bakersmith, 18 App. D. C. 574 ; 29 W. L. R. 751. V. Ball, 22 App. D. C. 543; 31 W. L. R. 726. Baltimore & Ohio R. R. Co. v., 10 App. Ill ; 25 W. L. R. 118. Baltimore & Pot. R. R. Co. v. See Baltimore & Ohio R. R. Co. v. District of Columbia. V. Barbour, 5 App. D. C. 497 ; 23 W. L. R. 162. Barnes v., 24 App. D. C. 458 ; 33 W. L. R. 53. Barnes v., 27 App. D. C. 101 ; 34 W. L. R. 358. V. Barnes, 187 U. S. 637. Beitzell v., 21 App. 49; 31 W. L. R. 82. V. Belt. See District of Columbia v. Libbey. Bissel v., 28 App. 38 ; 34 W. L. R. 544. V. Boiling, 4 App. D. C. 397; 22 W. L. R. 753. Cited in 6 App. D. C. 418 ; 24 lb. 530. V. Boiling, 4 App. D. C. 404; 22 W. I,. R. 753. V. Boswell, 6 App. D. C. 402; 23 W. L. R. 423. Cited in 9 App. D. C. 31; 24 lb. 530; 27 lb. 413. Bowles v., 22 App. 321 ; 31 W. L. R. 539. Bradley v., 20 App. 169; 30 W. L. R. 455. Brandenburg v., 26 App. D. C. 140; 33 W. L. R. 740. V. Brewer, 7 App. D. C. 113; 23 W. L. R. 724. Cited in 13 App. D. C. 555; 191 U. S. 255, 263. V. Brooke, 29 App. D. C. 563; 35 W. L. R. 318. Brown v., 29 App. D.. C. 273 ; 35 W. L. R. 162. V. Burgdorf, 6 App. D. C. 465 ; 23 W. L. R. 354. Cited in 15 App. D. C. 62, 310. Burgdorf v., 7 App. D. C. 405 ; 24 W. L. R. 21. Bush v.. 1 App. D. C. 1; 21 W. L. R. 371. Cahill v., 26 App. D. C. 163 ; 33 W L. R. 759. Callan v. 16 App. 271 ; 28 W. L. R. 375. Callum v., 15 App. 529 ; 28 W. L. R. 61. ■v. Camden Iron Works, 15 App. D. C. 198; 27 W. L. R. 462 Af- firmed in 181 U. S. 453. Campbell v., 19 App. 131 ; 30 W. L. R. 43. V. Chapman, 25 App. D. C. 95 ; 33 W. L. R. 332. Cited in 26 Ado D C. 110; 27 App. D. C. 576. " Table of Cases. xxix District of Columbia, Cleland v., 35 W. L. R. 278. Clements v., 23 App. D. C. 272. Columbia Brick Co. v., 1 App. D. C. 351 ; 21 W. L. R. 739. V. Coale, 30 App. D. C. 143 ; 35 W. L. R. 465. Coughlin v., 25 App. D. C. 251 ; 33 W. L. R. 376. V. Cropley, 23 App. D. C. 232; 32 W. L. R. 97. V. Crumbaugh, 13 App. 553; 27 W. L. R. 73. Curry v., 14 App. 423 ; 27 W. L. R. 286. Dempsey v., 1 App. D. C. 63 ; 21 W. L. R. 389. V. Dempsey, 13 App. 533 ; 27 W. L. R. 87. V. Dietrich, 23 App, D. C. 577 ; 32 W. L. R. 360. V. Domer, 21 App. D. C. 284 ; 31 W. L. R. 243. Dotey v., 25 App. D. C. 232 ; 33 W. L. R. 493. Petition for certiorari denied in 198 U. S. 586. Duehay v., 25 App. D. C. 434. V. Duryee, 29 App. D. C. 327 ; 35 W. L. R. 254. Dupont v., 20 App. 477 ; 30 W. L. R. 729. V. Eaton, 13 App. 3 82; 26 W. L. R. 530. Fields v., 26 App. D. C. 70; 33 W. L. R. 501. V. Frazer, 21 App. D. C. 154; 31 W. L. R. 83. Cited in 21 App. D. C. 343; 25 Ih. 98. Fulton v., 2 App. D. C. 431 ; 22 W. L. R. 153. V. Gant, 34 W. L. R. 673 ; 28 App. D. C. 185. V. Garrison, 25 App. D. C. 563; 33 W. L. R. 345. Gassenheimer v., 6 App. D. C. 108 ; 23 W. L. R. 257. Gassenheimer v.. 25 App. D. C. 179 ; 33 W. L. R. 197. Gassenheimer v., 26 App. D. C. 557 ; 34 W. L. R. 174. V. Glass, 27 App. D. C. 576 ; 34 W. L. R. 467. Gray v., 1 App. D. C. 20; 21 W. L. R. 387. V. Gray, 1 App. D, C. 500 ; 22 W. L. R. 10. V. Gray, 6 App. D. C. 314 ; 23 W. L. R. 34. Cited in 11 App. D. C. 398. V. Green, 29 App. D. C. 296 ; 35 W. L. R. 263. Guy v., 25 App. D. C. 117; 33 W. L. R. 165. V. Haller, 4 App. D. C. 405 ; 22 W. L. R. 761. Cited in 6 App. D. C. 418; 10 /&. 293; 24 Ih. 530; 27 Ih. 413. Hannan v., 12 App. 265; 26 W. L. R. 202. V. Harlan & Hollingsworth Co., 30 App. D. C. 270 ; 36 W. L. R. 82. V. Hazel, 16 App. D. C. 283 ; 28 W. L. R. 372. Cited in 17 App. 265 ; 18 App. D. C. 467. Heylraan v., 27 App. D. C. 563 ; 34 W. L. R. 387. V. Holton, 15 App. D. C. 386; 28 W. L. R. 60. Howes v., 2 App. D. C. 188 ; 22 W. L. R. 41. V. Hufty, 13 App. 175 ; 26 W. L. R. 507. V. Humphries, 11 App. 68. Cited in 182 U. S. 461 ; 25 W. L. R. 398. V. Humphries, 12 App. 122. Reversed in 174 U. S. 190. V. Hutchinson, 1 App. D. C. 403 ; 21 W. L. R. 780. Johnson v., 27 App. D. C. 259; 34 W. L. R. 342. Jones v., 3 App. D. C. 26. Keyser v., 3 App. D. C. 31; 22 W. L. R. 207. Klopfer v., 25 App. D. C. 41 ; 33 W. L. R. 153. Koontz v., 24 App. D. C. 59 ; 32 W. L. R. 390. V. Krause, 11 App. 398 ; 25 W. L. R. 812. Lansburgh v., 8 App. D. C. 10; 24 W. L. R. 120. Lansburgh v., 11 App. 512; 25 W. L. R. 777. Lappin v., 22 App. 68; 31 W. L. R. 308. Lasley v., 14 App. 407; 27 W. L. R. 324. Lauer v., 11 App. 453 ; 26 W. L. R. 72. Lee V. 25 App. D. C. 388 ; 33 W. L. R. Petition for certiorari denied in 198 U. S. 584. Lehman v., 19 App. 217; 30 W. L. R. 87. V. Lewis, 26 App. D. C. 133; 33 W. L. R. 691. V. Libbey, 9 App. 321; 24 W. L. R. 726. XXX Table of Cases. District of Columbia, Lockwood v., 34 App. D. C. 569 ; 33 W. L. R. 131. Loeffler v., 15 App. 329 ; 38 W. L. R. 6. V. Lynham, 16 App. D. C. 85 ; 28 W. L. R. 568. McGraw v., 3 App. D. C. 405 ; 33 W. L. R. 383. McGuire v., 34 App. D. C. 32 ; 33 W. L. R. 374. Mackall v., 16 App. 301 ; 28 W. L. R. 351. Mann v., 22 App. 138 ; 31 W. L. R. 434. Martin v., 26 App. D. C. 146 ; 33 W. L. R 743. V. Mattingly, 38 App. D. C. 176 ; 34 W. L. R. 670. Mertz v., 18 App. 434; 29 W. L. R. 515. V. Metropolitan R. R. Co., 8 App. D. C. 333; 34 W. L. R. 566, 584. Affirmed in 195 U. S. 322. Cited in 22 App. D. C. 536. Montz v., 20 App. 568. V. Moore, 5 App. D. C. 497; 33 W. L. R. 163. Moore v., 13 App. 537 ; 36 W. L. R. 343. Mosheuvel v., 17 App. 401. Reversed in 191 U. S. 347. V. Moulton, 15 App. D. C. 363; 27 W. L. R. 753. Reversed in 182 U. S. 576 ; 45 L. Ed. 1237. Cited in 25 App. D. C. 276, 370. V. Moulton, 183 U. S. 576; 45 L. Ed. 1237; 21 S. Ct. 840. Reversing 15 App. D. C. 363. Cited in 112 Fed. R. 373; 127 Fed. R 309; 130 Fed. R. 74. Myers v., 25 App. D. C. 133; 33 W. L. R. 391. Nash v., 38 App. D. C. 598; 35 W. L. R. 96. Oettinger v., 18 App. 375. Padgett v., 17 App. 355 ; 28 W. L. R. 868. Page v., 20 App. 469 ; 30 W. L. R. 758. Palmer v., 26 App. D. C. 31 ; 33 W. L. R. 402. Parsons v., 8 App. D. C. 391 ; 34 W. L. R. 269. Affirmed in 170 U. S. 45. V. Payne, 13 App. 500. Cited in 24 App. D. C. 531. Probey v., 26 App. D. C. 1 ; 33 W. E. R. 482. V. Prospect Hill Cemetery, 5 App. D. C. 497; 23 W. L. R. 162. Cited in 8 App. D. C. 212 ; 17 lb. 520 ; 167 U. S. 573. V. Reuter, 15 App. D. C. 237; 27 W. L. R. 498. V. Robinson, 14 App. 512 ; 17 W. L. R. 303. Affirmed in 180 U. S. 93. Cited in 18 App. D. C. 380. V. Robinson, 30 App. D. C. 283 ; 36 W. L. R. 101. Roth v., 16 App. 323 ; 28 W. L. R. 432. V. Roth, 18 App. D. C. 547; 39 W. L. R. 703. Cited in 19 App. D. C. 536; 20 App. D. C. 491. Sanford v., 24 App. D. C. 404. Sargeant, 17 App. D. C. 264; 29 W. L. R. 6. Schaefer v., 3 App. D. C. 33; 32 W. L. R. 208. Scott v., 27 App. D. C. 413 ; 34 W .E. R. 420. Sheedy v., 19 App. 280; 30 W. E. R. 59. Sinclair v., 20 App. 336, 344; 30 W. E. R. 515, 517. Writs of error dismissed in 191 U. S. 565; 192 U. S. 17. V. Sisters of Visitation, 15 App. D. C. 300 ; 27 W. E. R. 736. Smith v., 13 App. 33 ; 25 W. E. R. 824. V. Smith, 17 App. D. C. 264. Smith v., 25 App. D. C. 370 ; 33 W. E. R. 418. Smoot v., 23 App. D. C. 266 ; 32 W. E. R. 183. Springer v., 23 App. D. C. 59 ; 32 W. E. R. 20. Stephens v., 16 App. 379; 38 W. E. R. 394. V. Sullivan, 11 App. 533; 36 W. E. R. 355. Sullivan v., 19 App. 310; 30 W. E. R. 55. Sullivan v., 30 App. 29 ; 30 W. E. R. 453. Swart v., 17 App. 407 ; 29 W. E. R. 138. Talty v., 20 App. 489; 30 W. E. R. 774. Taylor v., 24 App. D. C. 392; 33 W. E. R. 67. Thompson v., 21 App. 395; 31 W. E. R. 305 Tobin v., 23 App. 482 ; 31 W. E. R. 775. Trometer v., 24 App. D. C. 243; 33 W. E. R. 763. Tabli; of Cases. xxxi District of Columbia, Tubins v., 21 App. D. C. 367 ; 31 W. L,. R. 460. Ullman v., 21 App. 241. Union Trust Co. v., 29 App. D. C. 270 ; 35 W. L. R. 148. Waggaman v., 16 App. 207 ; 28 W. L. R. 571. Ward v., 24 App. D. C. 524 ; 33 W. L. R. 71. Washington Electric Vehicle Transportation Co., 19 App. 462. Washington Market Co. v., 6 App. D. C. 34; 23 W. L. R. 213. Af- firmed in 172 U. S. 361. V. Weaver, 6 App. D. C. 482 ; 23 W. L. R. 363. Weigand v., 22 App. 559 ; 31 W. L. R. 730. V. Weston, 23 App. D. C. 363; 32 W. L. R. 284. Cited in 26 App. D. C. 163. Weston v., 23 App. D. C. 367; 32 W. L. R. 283. V. Whipps, 17 App. D. C. 415; 29 W. L. R. 58. Cited in 24 App. D. C. 531. V. Wilcox, 4 App. D. C. 90; 22 W. L. R. 623. Cited in 6 App. D. C. 175; 17 Ih. 520; 22 Ih. 131, 137. Wilkinson v., 22 App. 289 ; 31 W. L. R. 507. Willard Hotel Co. v., 23 App. D. C. 272 ; 32 W. L. R. 163. Williams v., 22 App, 471; 31 W. L. R. 683. Wilson v., 26 App. D. C. 110; 33 W. L. R. 502. Wolf v., 21 App. 464; 31 W. L. R. 257. Affirmed in 196 U. S. 152; 33 W. L. R. 137. V. Wormley, 15 App. D. C. 58; 27 W. L. R. 382. Affirmed in 181 U. S. 402. District of Columbia Dental Society, Bryant v., 26 App. D. C. 461 ; 34 W. L.. R. 19. District Messenger Co., Tyler v., 13 App. 267. Dobbins v. Thomas, 26 App. D. C. 157 ; 33 W. L. R. 743. Doble, Henry v., 27 App. D. C. 33. Dodge V. Cohen, 14 App. 582 ; 27 W. L. R. 334. Cited in 27 App. D. C. 188. Dodge V. Fowler, 11 App. 592 ; 24 W. L. R. 477. Cited in 12 App. D. C. 341; 14 Ih. 240; 17 Ih. 555; 19 Ih. 390; 24 lb. 485; 26 lb. 354. Dodge, Fowler v., 14 App, 477. Dodge V. Rush, 28 App. D. C. 149 ; 34 W. L. R. 501. Dodge, Seeberger v., 24 App. D, C. 476. Dodge, Strasburger v., 12 App. 37. Dodge Brothers v. Strasburger, 21 W. L. R. 513. Dolan, Shaffer v., 23 App, D. C. 79, Domer v. District of Columbia, 21 App, 284 ; 31 W, L. R. 243. Donaldson v. Uhlfelder, 21 App. D, C. 489 ; 31 W. L, R, 428, Cited in 22 App. D. C. 591 ; 23 lb. 525 ; 24 lb. 521 ; 26 lb. 193, Donaldson v. Wright, 7 App. D. C, 45 ; 23 W, L. R, 643. Cited in 18 App, D, C, 243, Donaldson Lithographing Co,, Bleistein v., 188 U. S. 339; 31 W. L. R. 99. Donovan, Herrell v., 7 App, D, C. 323 ; 23 W. L. R. 821, Donovan, Johnson v., 7 App, D, C, 322; 23 W. L. R. 821. Donovan v. Johnson, 13 App. 356 ; 26 W. L. R. 714. Donnelly, Wyman v., 21 App. 81. Dorsey v. Manning, 15 App. D, C, 391 ; 27 W, L. R. 788. Dotey V. District of Columbia, 25 App, D. C. 232 ; 33 W. L. R. 293. Dotson V. Milliken, 27 App. D. C. 500 ; 34 W. L. R. 334. Affirmed in 209 U S 237 Dougherty, Baltimore & Ohio R. R. Co. v., 7 App. D. C. 378; 33 W, L. R. 832. Dougherty, O'Brien v., 1 App. 148 ; 21 W. L. R. 637. Douglas, Holtzman v., 5 App. D. C. 397; 23 W. L. R. 146. Affirmed in 168 U. S. 378. Douglas V. Douglas, 13 App. 21; 26 W. L. R. 331. Cited in 16 App. D. C. 316. Dover, Greenwood v., 23 App. D. C. 251. Dowling V. Buckey, 26 App. D. C. 266; 33 W. L. R. 774. Dowling V. Buckey, 27 App. D. C. 205 ; 34 W. L. R. 286. xxxii TablB of Cases. Downey, Helphenstine v., 7 App. D. C. 343; 24 W. L. R. 7. Downey, Washington Times Co. v., 26 App. D. C. 258 ; 33 W. L. R. 770. Downing, Koppel v., 24 W. L. R. 342. Downing, Koppel v., 11 App. 93 ; 25 W. L. R. 511. Downing v. Ross, 1 App. D. C. 251 ; 21 W. L. R. 683. Downs V. Downs, 23 App. D. C. 381 ; 32 W. L. R. 228, Doyle V. McRoberts, 10 App. 445; 25 W. L. R. 574. Cited in 12 App. D. C. 529; 14 lb. 53; 15 Ih. 504; 16 Ih. 572; 17 /&. 38, j351, 555; 21 Ih. 205; 27 Ih. 228. Drake, American Home Life Ins. Co. v., 36 W. L. R. 69 ; 30 App. D. C. 263. Drake v. Bates & Co., 36 W. L. R. 140 ; 30 App. D. C. 312. Drake, Jordan v., 32 W. L. R. 501. Draper, In re, 10 App. 545 : 25 W. L. R. 531. Drawbaugh, Bx parte, 2 App. D. C. 404. Drawbaugh, Appeal of, 3 App. D. C. 236 ; 22 W. L. R. 352. Drawbaugh, In re, 9 App. 219 ; 24 W. L. R. 694. Drennan, United States v., 35 W. L. R. 211. Drew V. Hogan, 26 App. D. C. 55 ; 33 W. L. R. 488. Drewson, Sherwood v., 29 App. D. C. 161 ; 130 O. G. 657. Dries, Ux parte, 3 App. D. C. 165 ; 22 W. L. R. 301. Driggs, Supplee Hardware Co. v., 13 App. 272 ; 26 W. L. R. 658. Droop V. Ridenour, 9 App. 95 ; 24 W. L. R. 412. Cited in 13 App. D. C. 276; 18 Ih. 252, 624, 325; 22 Ih. 231. Droop V. Ridenour, 11 App. D. C. 224 ; 25 W. L. R. 481. Cited in 12 App. D. C. 47. Drum, Benton v., 26 W. L. R. 146. Drum V. Benton, 13 App. 245 ; 26 W. L. R. 642. Dudley, Massachusetts Mutual Accident Assn. v., 15 App. 472; 28 W. L. R. 24. Duehay v. District of Columbia, 25 App. D. C. 434; 33 W. L. R. 423. Petition for writ of certiorari denied in 198 U. S. 586. Duell, United States, ex rel. Bernardin v., 13 App. 379. Affirmed in 172 U. S. 576. Duell, United States ex rel. Bronson Co. v. 28 W. L. R. 788. Duell, United States ex rel. Bronson Co. v., 17 App. 471 ; 29 W. L. R. 126. Duell, U. S. ex rel. Buffalo Pitts Co. v., 28 W. L. R. 789. Duell, U. S. ex rel. New York Condensed Milk Co. v., 28 W. L. R. 789. Duell, U. S. ex rel. Stapleton v., 28 W. L. R. 835. Duell, U. S. ex rel. Stapleton v., 17 App. 575 ; 29 W. L. R. 156. Dugan V. Northcutt, 7 App. D. C. 351 ; 24 W. L. R. 2. Cited in 19 App. D. C. 523. Dumas v. Northwestern National Ins. Co., 12 App. 245. Cited in 16 App. D. C. 263 ; 20 Ih. 50. Dunan v. United States, 7 App, D, C, 160 ; 23 W, L. R. 763, Dunbar v. Schellenger, 29 App, D, C, 129 ; 128 O, G, 3837, Duncan, In re, 28 App. D. C. 457. Duncan, Westinghouse v., 2 App. D. C. 131 ; 22 W. L. R. 83. Duncanson v. Manson, 3 App. D. C. 260; 22 W. L. R. 321. Affirmed in 166 U. S. 533. Dupont V. Dis. of Col., 20 App. D. C. 477 ; 30 W. L. R, 728, Cited in 199 U. S, 331, Durant v. Murdock, 3 App, D, C. 114; 22 W. L. R. 349, 351, Cited in 13 App. D. C. 387. Durham v. Seymour, 6 App. D. C. 79 ; 33 W. L. R. 273. Dismissed in 161 U. S. 235. Cited in 8 App. D. C. 275; 9 lb. 482; 10 Ih. 170, 185; 12 Ih. 218; 14/&. 184; 30 /b. 298; 26 lb. 315; 27 Ih. 19, 70. Durham v. Seymour, 161 U. S. 235; 40 L. Ed. 682; 16 S. Ct 452. Dis- missing appeal from 6 App. D. C. 79. Cited in 133 Fed. Rep. 19; 163 U. S. 331 ; 168 lb. 435. Durham v. Seymour, 10 App. 374 ; 25 W. L. R. 9, Duryea v. Rice, 38 App, D, C. 423 ; 126 O. G. 1357. Duryee, District of Columbia v., 29 App. D. C. 327 ; 35 W. L, R. 254. Table o? Cases. xxxiii Dutton, Godfrey v., 37 W. L. R. 50. Button, Godfrey v., 16 App. 117 ; 28 W. L. R. 171. Duval V. Commercial Fire Ins. Co., 34 W. L. R. 358. Duvall, Robinson v., 37 App. D. C. 535 ; 34 W. L. R. 446. Dyer, Starkweather v., 35 W. L. R. 369 ; 30 App. D. C. 146. Dyson, Fowler v., 37 App. D. C. 53. Earle v. Myers, 207 U. S. 244. Reversing 25 App. D. C. 582. Earle v. Waggaman, 35 App. D. C. 582; 33 W. L. R. 430. Reversed in 307 U. S. 344. Earnshaw, Bradshaw v., 11 App. 495; 35 W. L. R. 809. Earnshaw v. Daly, 1 App. D. C. 318; 31 W. L. R. 669. Cited in 35 App. D. C. 514. Earnshaw, Gundersheimer v., 13 App. 178; 26 W. L. R. 438. Easterday, Critchfield v., 26 App. D. C. 89 ; 33 W. L. R. 504. EasterUng v. Horning, 36 W. L. R. 53 ; 30 App. D. C. 325. Eastern Building & Loan Assn. v. Olmsted, 16 App. D. C. 387 ; 38 W. L. R. 409. Eastern Trust & Banking Co. v. American Ice Co., 14 App. 304 ; 37 W. L. R. 183. Cited in 16 App. D. C. 551; 17 lb. 433; 31 lb. 338; 188 U. S. 627, 630. Eastern Trust & Banking Co., American Ice Co. v., 17 App. D. C. 422 ; 29 W. L. R. 55. Affirmed in 188 U. S. 626. Eastern Trust & Banking Co. v. Willis, 6 App. D. C. 375; 23 W. L. R. 417. Reversed in 169 U. S. 295. Cited in 188 U. S. 637; 17 App. D. C. 433. Eastern Trust & Banking Co., Willis v., 167 U. S. 76 ; 43 L. Ed. 83 ; 17 S. Ct. 739. Eastman v. Houston, 18 App. D. C. 135. Easton's Estate, In re, 23 W. L. R. 789. Eaton V. Brown, 20 App. D. C. 453; 30 W. L. R. 746. Reversed in 193 U. S. 411. Eaton, District of Columbia v., 13 App. 182 ; 36 W. L. R. 530. Echols, Deane v., 3 App. D. C. 533; 22 W. L. R. 233. Eckington & Soldiers' Home Ry. Co. v. Hunter, 6 App. D. C. 387 ; 33 W. L. R. 401. Eckington & Soldiers' Home Ry. Co. v. McDevitt, 18 App. D. C. 497; 29 W. L. R. 459. Reversed in 191 U. S. 103. Eckloff, Washington Gas Light Co. v., 4 App. D. C. 174 ; 22 W. L. R. 655. Eckloff, Washington Gas Light Co. v., 7 App. D. C. 373 ; 33 W. L. R. 846. Eclipse Bicycle Co. v. Farrow, 16 App. 468; 38 W. L. R. 551. Cited in 23 App. D. C. 413; 199 U. S. 582, 584. Eclipse Bicycle Co., Farrow v., 18 App. 101 ; 39 W. L. R. 318. Cited in 23 App. D. C. 412. Eclipse Bicycle Co. v. Farrow, 23 App. D. C. 411; 32 W. L. R. 265. Re- versed in 199 U. S. 581. Eclipse Bicycle Co. v. Farrow, 24 App. D. C. 311; 32 W. L. R. 365. Edelin v. Lyon, 1 App. D. C. 87 ; 31 W. L. R. 605. Edgerton v. Lyons, 1 App. D. C. 87 ; 31 W. L. R. 605. Edgerton v. Baltimore & Ohio R. R. Co., 6 App. D. C. 516 ; 33 W. L. R. 369. Cited in 33 App. D. C. 564. Edison, Macdonald v., 31 App. 537. Edmonds, Chamberlain v., 18 App. 332 ; 29 W. L. R. 395. Edwards, Jerman v., 39 App. 535; 35 W. L. R. 466. Edwards, Norment v., 6 App. D. C. 107 ; 33 W. L. R. 309. Edwards (U. S. -ex rel.) v. Root, 32 App. 419; 31 W. L. R. 679. Edwards (U. S. ex rel.) v. Taft, 195 U. S. 636. Einstein v. Sawhill, 3 App. D. C. 10 ; 23 W. L. R. 89. Eisinger, Virginia-Carolina Lumber Co. v., 39 App. D. C. 531; 35 W. L. R. 404. Electric Company, Staubley v., 31 App. 160; 31 W. L. R. 127. Electric Lighting Co., Dewey Hotel Co. v., 17 App. 356 ; 39 W. L. R. 71. xxxiv TablS oif CasbS. Electric Lighting Co. v. Metropolitan Club, 6 App. D. C. 536; 23 W. L. R. 465. Electric Lighting Co. v. Ross, 24 W. L. R. 775. Electric Lighting Co. v. Ross, 9 App. 558 ; 24 W. L. R. 775, 838. Electric Lighting Co. v. Sullivan, 22 App. 115; 31 W. L. R. 406. Electric Power Co. v. Electric Light Co., 26 App. 19. Electric Vehicle Transportation Co. v. District of Columbia, 19 App. 462. Electrolibration Co. v. Sanche, 25 W. L. R. 87. Electrolibration Co., Sanche v., 4 App. D. C. 453 ; 22 W. L. R. 769. Eleventh Street Extension, In re, 35 W. L. R. 320. Eli, Jackson v., 23 App. D. C. 122 ; 32 W. L. R. 51. Elkins, Johnson v., 1 App, D. C. 430 ; 22 W. L. R. 5. Elkins, Johnson v., 23 App. D. C. 486 ; 32 W. L. R. 440. EUicott, Manning v., 9 App. 71 ; 24 W. L. R. 439. Elliott, Baltimore & Potomac R. R. Co. v., 9 App. 341 ; 24 W. L. R. 760. Elliott V. Harris, 24 App. D. C. 11 ; 32 W. L. R. 378. Writ of error dis- missed in 199 U. S. 615. Elliott V. United States, 23 App. D. C. 456; 32 W. L. R. 293. Ellis, Christensen v., 17 App. 498. Elroy, McGowan v., 28 App. 86; 34 W. L. R. 455; 28 App. D. C. 188; 34 W. L. R. 782. Elwell, Ruete v., 15 App. 21. Emack V. Campbell, 14 App. 186 ; 27 W. L. R. 214. Emack V. Rushenberger, 8 App. D. C. 249 ; 24 W. L. R. 486. Emergency Hospital, Leitch v., 6 App. D. C. 247 ; 23 W. L. R. 305. Emery v. Lord, 29 App. D. C. 589 ; 35 W. L. R. 453. Emmons, Jackson v., 13 App. 269; 26 W. L. R. 674. Reversed in 176 U. S. 532. Emmons, Jackson v., 19 App. 250 ; 30 W. L. R. 72. Emmons, Jackson v., 25 App. D. C. 146; 33 W. L. R. 165. Empire State Realty Co., Croissant v., 29 App. D. C. 538; 35 W. L. R. 350. Endowment Assn., Gilbert v., 10 App. 316; 25 W. L. R. 149. Dismissed in 173 U. S. 701. Endowment Assn., Gilbert v., 15 App. 40; 27 W. L. R. 340; 21 App. 344; 31 W. L. R. 190. Endowment Assn., Stewart v., 21 App. 344; 31 W. L. R. 190. Engle V. Mades, 25 W. L. R. 229. Entwisle, Shoemaker v., 3 App. D. C. 252 ; 22 W. L. R. 316. Estate of Atwood, 2 App. D. C. 74. Estate of Coit, 3 App. D. C. 246 ; 22 W. L. R. 319. Estate of Gault, 32 W. L. R. 726. Estate of Holt, 35 W. L. R. 382. Estate of McKnight, 1 App. D. C. 28; 21 W. L. R. 587 Estate of Obold, 30 W. L. R. 345. Estate of Pritchard, In re, 30 W. L. R. 9. Estate of Smith, 34 W. L. R. 197. Estate of Tucker, 34 W. L. R. 261. Esterhazy, Brown v., 25 W. L. R. 478 ; Esty V. Newton, 14 App. 50. Cited in 16 App. D. C. 139; 17 76. 470; 18 /&. 146, 147 ; 19 Ih. 380 ; 20 76. 261 ; 22 /&. 218 ; 24 Ih. 80, 270 ; 25 /b. 313; 27 Ih. 291. Evangelist Lutheran Church v. Northwestern Natl. Ins. Co., 33 W. L. R. 692. Evans, Howard v., 24 App. D. C. 127 ; 32 W. L. R. 406. Evans V. Humphreys, 9 App. 392; 24 W. L. R. 782. Evans, Mitchell v., 17 App. 233 ; 28 W. L. R. 887. Evans, Mitchell v., 18 App. 254 ; 29 W. L. R. 399. Evans V. Schoonmaker, 2 App. D. C. 62 ; 22 W. L. R. 78. Evans, United States v., 34 W. L. R. 739. Evans, United States v., 34 W. L. R. 756 ; 28 App. D. C. 264. Evans, United States v., 35 W. L. R. 452 ; 30 App. D. C. 58. Tabi,:^ of Cases. xxxv Evans V. United States ex rel. Phillips, 19 App. D. C. 202, 207. Dismissed in 189 U. S. 507. Evans, Walker v., 29 W. L. R. 348. Evening Star Newspaper Co., Huysman v., 12 App. 586. Evening Star Publishing Co. v. Johnston, 4 App. D. C. 355; 22 W. L. R. 734. Evered, Pelton v., 77 O. G. 1600 ; 1896 C. D. 651. Everson (U. S. ex rel.) v. Young, 26 W. L. R. 546. Ewing V. United States, 3 App. D. C. 353 ; 22 W. L. R. 367. Cited in 22 App. D. C. 513. Ewing, United States v., 22 App. 512 ; 31 W. L. R. 710. Bx parte Drawbaugh, 2 App. D. C. 404. Bx parte Dries, 3 App. D. C. 165; 22 W. L. R. 301. Ex parte Frasch, 192 U. S. 566. Ex parte Harlow, 3 App. D. C. 203. Ex parte Huntt, 10 App. 275 ; 25 W. L. R. 84. Bx parte Mansfield, 11 App. 558 ; 25 W. L. R. 783. Bx parte Redmond, 3 App. D. C. 317. Express Co. v. Morris, 15 App. 262; 27 W. L. R. 690. Express & Transportation Co. v. Burdette, 7 App. D. C. 551; 24 W. L. R. 88. Eyster, Cropley v., 9 App. 373 ; 24 W. L. R. 829. Falk V. United States, 15 App. 446; 27 W. L. R. 815. Dismissed in 180 U. S. 636. Falvey, Metropolitan R. R. Co. v., 5 App. D. C. 176 ; 23 W. L. R. 53. Farr v. Palmer, 24 App. D. C. 234 ; 32 W. L. R. 712. Farrow, Eclipse Bicycle Co. v., 16 App. 468 ; 28 W. L. R. 551. Farrow v. Eclipse Bicycle Co. 18 App. D. C. 101 ; 29 W. L. R. 218. Cited in 199 U. S. 585. Farrow, Eclipse Bicycle Co. v., 23 App. D. C. 411 ; 32 W. L. R. 265. Re- versed in 199 U. S. 581. Farrow, Eclipse Bicycle Co. v., 24 App. D. C. 311 ; 32 W. L. R. 265. Faul V. French. See Paul v. Hulick. Faul V. HuHck, 18 App. D. C. 9 ; 29 W. L. R. 171. Reversed in 187 U. S. 401. Fay, Gilbert v., 4 App. D. C. 38 ; 22 W. L. R. 473. Fay, In re, 15 App. D. C. 515. Fay, Jackson & Sharp Co. v., 20 App. 105 ; 30 W. L. R. 378. Pay, Pleasants v., 13 App. 237 ; 26 W. L. R. 628. Pearson v. United States, 10 App. 536 ; 25 W. L. R. 526. Cited in 13 App. D. C. 145 ; 26 76. 74. Fechheimer, Bieber v., 9 App. 548; 25 W. L. R. 18. Fedarwisch, Alsop v., 9 App. 408; 25 W. L. R. 22. Fedarwisch v. Alsop, 18 App. D. C. 318; 29 W. L. R. 367. Cited in 23 App. D. C. 170. Fefel V. Stocker, 17 App. D. C. 317. Cited in 18 App. D. C. 141-7; 19 App. D. C. 378, 380 ; 24 App. D. C. 468 ; 26 App. D. C. 409. Feinberg v. Cowan, 29 App. D. C. 80 ; 128 O. G. 889. Pelbel, Oliver v., 20 App. 255. Penning, Logue v., 29 App. D. C. 519 ; 35 W. L. R. 382. Fenton Metallic Mfg. Co. v. Oiifice Specialty Mfg. Co., 12 App. 201. Re- versed in 174 U. S. 492. Cited in 14 App. D. C. 185. Fererro v., Western Union Telegraph Co., 9 App. 455 ; 24 W. L. R. 790 ; Cited 18 App. D. C. 514. Ferguson v. Bateman, 1 App. D. C. 279 ; 21 W. L. R. 723. Ferguson, Readman v., 13 App. 60 ; 26 W. L. R. 389. Ferguson v. Washington & Georgetown R. R. Co., 6 App. D. C. 525 ; 23 W. L. R. 407. Ferryboat Columbia, James Clark Co. v., 26 App. D. C. 85; 33 W. L. R. 519. Fickling, Ross v., 11 App. 442 ; 25 W. L. R. 806. Fidelity & Deposit Co. v. Beck, 12 App. 237, xxxvi Tabls of Casks. Fidelity & Deposit Co. (U. S. ex rel.) Church v., 13 App. 364; 26 W. L. R. 676. Fidelity & Deposit Co. v. United States to use of Smoot, 30 App. D. C. 376 ; 30 W. L. R. 533. Affirmed in 187 U. S. 315. Fields V. Central National Bank, 10 App. 1 ; 35 W. L. R. 82. Fields V. District of Columbia, 26 App. D. C. 70; 33 W. L. R. 501. Fields V. Gwynn, 19 App. D. C. 99; 29 W. L. R. 834. Cited in 25 Apy. D. C. 497. Fields V. United States, 27 App. D. C. 433 ; 34 W. L. R. 382. Dismissed in 205 U. S. 393 ; 35 W. L. R. 517. Fifth Congregational Church v. Bright, 38 App. D. C. 229; 34 W. L. R. 718. Finkenbiner, Beals v., 13 App. 33. Finney v. Pennsylvania Iron Works Co., 22 App. 476 ; 31 W. L. R. 698. Firemen's Ins. Co., Allemannia Ins, Co. v., 28 App. D. C. 30; 34 W. L. R. 754. Fishback v. Reeves, 6 App. D. C. 76; 23 W. L. R. 250. Fiske, Washington National Building & Loan Assn. v., 20 App. 514; 30 W. L. R. 761. Petition for certiorari denied in 188 U. S. 740. Fitch, Graham v., 13 App. 569 ; 37 W. L. R. 42. Fitzgerald, Baltimore & Potomac R. R. Co. v., 2 App. D. C. 501; 22 W. L. R. 317. Fitzgerald v. Wiley, 32 App. 329; 31 W. L. R. 491. Fitzgerald v. Wynne, 1 App. D. C. 107 ; 31 W. L. R. 611. Cited in 1 App. D. C. 444; 35 lb. 336. Fitzhugh V. Fitzhugh, 15 App. D. C. 131 ; 27 W. L. R. 419. Flannery v. Maine Red Granite Co., 3 App. D. C. 395 ; 22 W. L. R. 369. Flather v. Weber, 31 App. D. C. 179. Fleet, United States v., 18 App. 287 ; 39 W. L. R. 403. Fleming, Dickey v., 13 App. 509. Fleming, Palmer v., 1 App. D. C. 528 ; 22 W. L. R. 1. Fleming, Palmer v., 5 App. D. C. 365 ; 23 W. L. R. 123. Fletcher v. Baltimore & Potomac R. R. Co., 6 App. D. C. 385; 33 W. L. R. 390. Reversed in 168 U. S. 135. Fletcher v. Baltimore & Potomac R. R. Co., 168 U. S. 135 ; 43 L. Ed. 411 ; 18 S. Ct. 35. Reversing 6 App. D. C. 385. Cited in 114 Fed. R. 140; 126 Fed. R. 201 ; 130 Fed. R. 307. Fletcher v. Barge "John I. Brady," 19 App. D. C. 174 ; 30 W. L. R. 38. Fletcher, Fulton v., 13 App. 1. Fletcher, La Tourette, 6 App. D. C. 334; 23 W. L. R. 408. Fletcher, McCartney v., 10 App. 572; 25 W. L. R. 311, 327. Fletcher, McCartney v., 11 App. 1; 25 W. L. R. 311, 327, 402. Flora, Ball v., 26 App. D. C. 394. Flora V. Powrie, 23 App. D. C. 195. Cited in 36 App. D. C. 541; 27 lb. 228. Foertsch v. Germuiller, 2 App. D. C. 340; 22 W. L. R. 136. Cited in 13 App. D. C. 169, 183 ; 187 U. S. 320, Foertsch v. Germuiller, 9 App. 351; 24 W. L. R. 794. Cited in 15 App. D. C. 384. Foley, Horn v., 13 App. 184 ; 26 W. L. R. 466. Foley, Thyson v., 1 App. D. C. 183 ; 31 W. L. R. 637. Follansbee v. Follansbee, 1 App. D, C. 336 ; 31 W. L. R. 761. Follanbee v. Follanbee, 7 App. D. C. 282 ; 33 W. L. R. 840. Fontano v. Robbins, 18 App. D. C. 402; 39 W. L. R. 527. Cited in 23 App. D. C. 354. Fontano v. Robbins, 33 App. 353. Cited in 37 App. D. C. 210. Ford, Burr v., 5 App. D. C. 26; 23 W. L. R. 811. Ford V. Ford, 37 App. D. C. 401 ; 34 W. L. R. 435. Ford, Lyon v., 7 App. D. C. 314 ; 23 W. L. R. 838. Forg, Appeal of, 3 App. D. C. 58; 33 W. L. R. 116. Forsberg, Lefier v., 1 App. D. C, 36 ; 31 W. L. R. 585. Tabi,b of Cases. xxxvii Foster V. Antisdel, 14 App. 553. Cited in 15 App. D. C. 504 ; 17 lb. 491 ; 21 lb. 205, 211; 22 lb. 219; 24 lb. 117. Foster, In re, 19 App. D. C. 391. Fowler V. Boyce, 27 App. D. C. 48, 55; 1906 C. D. 580, 659; 121 O G. 1014; 122 O. G. 1726. Fowler, Dodge v., 11 App. 592; 24 W. L. R. 477. Cited in 13 App. D. C. 565. Fowler v. Dodge, 14 App. 477. Cited in 16 App. D. C. 565. Fowler v. Dyson, 27 App. D, C. 52 ; 1906 C. D. 583 ; 121 O. G. 1015. Fowler V. McBerty, 27 App. D. C. 41, 46 ; 1906 C. D. 585 ; 121 O. G. 1015. Cited in 27 App. D. C. 53. Fowler v. Tavenner, 34 W. L. R. 307. Fowlkes V. Stone, 35 W. L. R. 261 ; 29 App. D. C. 379. France v. Coleman, 29 App. D. C. 286; 35 W. L. R. 193. Dismissed in 207 U. S. 601. Francis, Norwood v., 25 App. D. C. 463 ; 33 W. L. R. 455. Frank v. Hirsh, 3 App. D. C. 491 ; 22 W. L. R. 403. Frasch, Ex parte, 192 U. S. 566; 109 O. G. 554; 1904 C. D. 716. Frasch, In re, 20 App. D. C. 298. Frasch, In re, 27 App. D. C. 25 ; 1906 C. D. 648 ; 123 O. G. 1048. Fraser, In re, 38 W. L. R. 39. Affirmed in 28 W. L. R. 256. Frazee, Butler v., 25 App. D. C. 392; 33 W. L. R. 387. Frazee, District of Columbia v., 31 App. 154 ; 31 W. L. R. 83. Frazer, Gordon v., 13 App. 383 ; 26 W. L. R. 713. Frazier, Stoutenburgh v., 16 App. 229; 28 W. L. R. 256. Freeman, Garrels, 21 App. 207. Freeman, In re, 33 App. D. C. 336. Cited in 36 App. D. C. 366. French, Faul v. See Faul v. Hulick. French v. Holcomb, 36 App. D. C. 307 ; 1906 C. D. 547 ; 120 O. G. 1834. French v. HuHck, 38 W. L. R. 391. See Faul v. Hulick. French, Young Women's Christian Home v., 187 U. S. 401. Reversing 18 App. D. C. 9; 29 W. L. R. 171. Frey v. Allen, .9 App. 400 ; 25 W. L. R. 39. Cited in 12 App. D. C. 59 ; 18 lb. 96; 20 lb. 557; 35 lb. 497. Frey, VanHook, v., 13 App. 543 ; 27 W. L. R. 39. Friedlander, Spitzer v., 14 App. 556; 37 W. L. R. 368. Frisbie v. Cowen, 18 App. D. C. 381 ; 39 W. L. R. 510. Frizzell v. Murphy, 19 App. D. C. 440 ; 30 W. L. R. 303. Cited in 22 App. D. C. 449 ; 27 lb. 550, 555. Frizzell, United States v., 19 App. 48 ; 29 W. L. R. 822. Frost (U. S. ex rel.) Garfield v., 35 W. L. R. 771; 30 App. D. C. 165. Fry, Arrick v., 8 App. Div. 125 ; 24 W. L. R. 146. Frye, Mallery v., 31 App. 105 ; 31 W. L. R. 63. FuUman, Herman v., 33 App. D. C. 359. Fulton V. District of Columbia, 2 App. D. C. 431 ; 22 W. L. R. 153. Cited in 21 App. D. C. 250. Fulton V. Fletcher, 12 App. 1. Cited in 26 App. D. C. 218. Funk V. Haines, 20 App. D. C. 293. Funk V. Haines and Matteson, 20 App. D. C. 385. Cited in 26 App. D. C. 409. Funk V. United States, 16 App. D. C. 478 ; 28 W. L. R. 486. Cited in 36 App. D. C. 74. Funk V Whitely, 25 App. D. C. 313. Furman v. Dean, 24 App. D. C. 277. Fynn, Kelly v., 16 App. 573. Gaddis, Knox v., 1 App. D. C. 336; 21 W. L. R. 742. Dismissed in 163 U. S. 692. Gaddis, Mayse v., 2 App. D. C. 20 ; 23 W. L. R. 46. Gaines v Carlton Importation Co., 27 App. D. C. 571; 1906 C. D. 731; 123 O. G. 1994. Cited in 27 App. D. C. 573. Gaines v. Knecht, 27 App. D. C. 530; 1906 C. D. 690; 133 O. G. 657. Cited in 37 App. D. C. 571. xxxviii Tablh; of Cases. Gale V. United States. See Holtzman v. United States. Gallagher v. Hastings, 21 App. D. C. 88; Cited in 21 App. D. C. 211; 23 lb. 258 ; 35 lb. 305 ; 26 lb. 541 ; 27 lb. 228. Gallagher v. Hein, 25 App. D. C. 77. Cited in 25 App. D. C. 90 ; 26 App. D. C. 336 ; 27 App. D. C. 451. Gallagher v. Hein. See Ocumpaugh v. Norton. Gait's Estate, In re, 33 W. L. R. 736. Gait V. Todd, 5 App. D. C. 350; 23 W. L. R. 98. Cited in 15 App. D. C. 550; 24 lb. 314; 164 U. S. 523. Gannon (U. S. ex. rel.) v. Georgetown College, 28 App. 87; 34 W. L. R. 530. Gans, Bieber v., 24 App. D. C. 517 ; 33 W. L. R. 51. Gant, District of Columbia v:, 34 W. L,. R. 673; 28 App. D. C. 185. Garfield v. United States, ex rel. Allison, 35 W. L. R. 785, 786 ; 30 App. D. C. 188, 190. Garfield v. United States, ex rel. Cartford, 36 W. L. R. 87. Garfield v. United States, ex rel. Frost, 35 W. L. R. 771 ; 30 App. D. C. 165. Garfield v. United States, ex rel. Goldsby, 35 W. L. R. 782; 30 App. D. C. 177. Garner, Wielar v., 4 App. D. C. 329; 22 W. L. R. 729. Garrels v. Freeman, 21 App. D. C. 207. Cited in 36 App. D. C. 307; 37 lb. 537. Garrett, Davis v., 38 App. D. C. 9. Garrett, In re, 37 App. D. C. 19 ; 1906 C. D. 645 ; 122 O. G. 1047. Garrett, Security Investment Co. v., 3 App. D. C. 69 ; 33 W. L. R. 268. Garrison, District of Columbia v., 25 App. D. C. 563 ; 33 W. L- R. 345. Garrison, Toledo Computing Scale Co. v., 28 App. D. C. 243; 34 W. L. R. 773. Garthe v. Rothwell, 18 App. D. C. 516; 39 W. L. R. 687. Garthe v. Rothwell, 19 App. 178; 39 W. L. R. 843. Gary, Woods v., 35 W. L. R. 591. Gas Co., Hines v., 3 App. D. C. 369; 22 W. L. R. 365. Gas Light Co. V. Eckloff, 4 App. D. C. 174 ; 23 W .L. R. 655. Gas Light Co. v. Eckloff, 7 App. D. C. 373 ; 33 W. L. R. 846. Gas Light Co. V. Lansden, 9 App. 508 ; 34 W. L. R. 807. Reversed in 173 U. S. 534. Gas Light Co. v. Poore, 3 App. D. C. 137 ; 33 W. L. R. 249. Gassenheimer v. District of Columbia, 6 App. D. C. 108 ; 23 W. L. R. 257. Gassenheimer v. District of Columbia, 25 App. D. C. 179; 33 W. L. R. 197. Cited in 26 App. D. C. — . Gassenheimer v. District of Columbia, 26 App. D. C. 557; 34 W. L. R. 174. Cited in 27 App. D. C. 101. Gassenheimer, In re, 24 App. D. C. 312 ; 32 W. L. R. 808. Gassenheimer v. United States, 26 App. D. C. 432 ; 34 W. L. R. 80 ; Cited in 26 App. D. C. 457 ; 27 App. D. C. 263 ; 27 App. D. C. 433. Gault, In re Estate of, 32 W. L. R. 726. Geen, Kreag v., 28 App. 437. Geddes, Rule v., 33 App. D. C. 31 ; 33 W. L. R. 35. Geddis, Whipple v., 35 App. D. C. 333. Gedge v. Cromwell, 19 App. D. C. 192. Cited in 21 App. D. C. 99, 208; 27 lb. 228. Geist V. United States, 26 App. D. C. 594 ; 34 W. L. R. 357. George E. Kekh Co., Waggaman v., 23 App. D. C. 166 ; 33 W. L. R. 87. Georgetown College, Simms v., 1 App. D. C. 73 ; 31 W. L. R. 595. Georgetown College, United States ex rel. Gannon v., 38 App. 87; 34 W. L. R. 530. Georgetown Gas Co., Hines v., 3 App. D. C. 369 ; 33 W. L. R. 365. Georgetown & Tennallytown Ry. Co. v. Smith, 35 App. D. C. 359; 33 W. L. R. 261. German Evangelical Society v. Prospect Hill Cemetery, 2 App. 310; 23 W. L. R. 122. Cited in 33 App. D. C. 563. TabivE of Cases. xxxix Germuiller, Foertsch, 2 App. D. C. 340 ; 23 W. L. R. 136. Germuiller, Foertsch, 9 App. 351 ; 34 W. L. R. 794. Gerstley, Clark v., 26 App. D. C. 305; 33 W. L. R. 758. Affirmed in 204 U. S. 504. Gerstley, McGuire v., 36 App. D. C. 193; 33 W. L. R. 754. Affirmed in 204 U. S. 504. Getz, Jackson v., 16 App. 343. Getz, Williams v., 17 App. 388; 29 W. L. R. 54. Gibbons v. Peller, 38 App. D. C. 530. Gibson v. Gibson, 18 App. D. C. 72 ; 29 W. L. R. 307, 375. Gibson, Riddle v., 29 App. D. C. 237 ; 35 W. L. R. 143. Gibson v. Ruff, 8 App. D. C. 363 ; 34 W. L. R. 230. Gibson V. Shehan, 5 App. D. C. 391 ; 33 W. L. R. 184. Giesey v. Gregory, 15 App. D. C. 49 ; 37 W. L. R. 416. Cited in 19 App. D. C. 584. Giesey v. Truman, 17 App. D. C. 449 ; 39 W. L. R. 140. Gilbert v. Fay, 4 App. D. C. 38 ; 23 W. L. R. 473. Gilbert v. Washington Beneficial Endowment Assn., 10 App. 316 ; 25 W. L. R. 149. Dismissed in 173 U. S. 701. Cited in 12 App. D. C. 15 ; 37 Ih. 433 ; 21 /b. 356. Gilbert v. Washington Beneficial Endowment Assn., 15 App. D. C. 40; 37 W. L. R. 340. Gilbert v. Washington Beneficial Endowment Assn., 31 App. D. C. 344; 31 W. L. R. 190. Cited in 27 App. D. C. 433. Giles, Giles Remedy Co. v., 26 App. D. C. 375. Giles, Knott v., 37 App. D. C. 581 ; 34 W. L. R. 414. Giles Remedy Co. v. Giles, 36 App. D. C. 375 ; 1906 C. D. 553 ; 120 O. G. 1836. Gillette, Sendelbach v., 33 App. 168. Gilman v. Hinson, 26 App. D. C. 409; 1906 C. D. 634; 133 O. G. 731. Gilmore, Smith v., 7 App. D. C. 192; 23 W. L. R. 717. Girard Life Ins. Co., Taylor v., 1 App. D. C. 209 ; 21 W. L. R. 633. Dis- missed in 163 U. S. 707. Gittings, Barley v., 15 App. 427 ; 27 W. L. R. 802. Glass, District of Columbia v., 27 App. D. C. 576 ; 34 W. L. R. 467. Gleason v. Hoeke, 5 App. D. C. 1 ; 22 W. L. R. 809. Cited in 18 App. D. C. 605, 606 ; 26 76. 230 ; 187 U. S. 320. Gleeson v. Virginia Midland R. Co., 1 App. D. C. 185 ; 21 W. L. R. 667. Glenn v. Adams, 12 App. 175. Cited in 18 App. D. C. 146. Glenn v. Sothoron, 4 App. D. C. 125 ; 22 W. L. R. 649. Glennan v. Glennan, 3 App. D. C. 333 ; 22 W. L. R. 473. Glidden v. Busell, 5 App. D. C. 480 ; 33 W. L. R. 485. Glidden v. Noble, 5 App. 480; S3 W. L. R. 485. Cited in 14 App. D. C. 42 ; 26 76. 409. Glover, Patten v., 1 App. D. C. 466; 21 W. L. R. 794. Affirmed in 165 U S 394 Glover, White v., 33 App. D. C. 389; 33 W. L. R. 241. Affirmed in 199 U. S. 602. Gloyd, Long v., 25 W. L. R. 50. Goddard, Newman v., 13 App. 404 ; 36 W. L. R. 218. Godfrey v. Dutton, 27 W. L. R. 50. Godfrey v. Dutton, 16 App. D. C. 117 ; 28 W. L. R. 171. Godfrey v. Roessle, 5 App. D. C. 399 ; 33 W. L. R. 139. Cited in 15 App. D C 298 299 " 21 Ih 391 Godfrey, Warner v., 17 App. 102 ; 28 W. L- R. 736. Reversed in 186 U. S. 365. Goebel, Cobb v., 23 App. D. C. 75. Goff V. United States, 33 App. 513 ; 31 W. L. R. 710. Goldberg, Shappirio v., 20 App. 185; 30 W. L. R. 450. Affirmed in 193 U. S. 233. Golden, Post Steamboat Co. v. See Post. Steamboat Co. v. Loughran. Goldsby (U. S. ex rel.), Garfield v., 35 W. L. R. 783; 30 App. D. C. 177. xl Tablb o^ Cases. Golway, Baltimore & Potomac R. R. Co. v., 6 App. D. C. 143 ; 23 W. L. R. 309. Goodfellow, Ross v., 7 App. D. C. 1; 33 W. L. R. 385. Goodfellow (U. S. ex rel.) v. Ross, 23 W. L. R. 263. Gordon, Dexter v., 11 App. 60; 25 W. L. R. 421. Gordon v. Frazer, 13 App. 382 ; 26 W. L. R. 713. Gordon, Overby v., 13 App. 393. Affirmed in 177 U. S. 214. Gordon v. Randle, 189 U. S. 417. Affirming order of Court of Appeals of Mar. 12, 1901, passed without opinion. Gorman, Richardson & Danville R. R. Co., 7 App. D. C. 91; 23 W. L. R. 673. Gottschalk Co. v. Live Oak Distillery Co., 7 App. D. C. 169; 23 W. L. R. 793. Cited in 12 App. D. C. 21 ; 26 76. 218. Gottwals, Turner v., 15 App. 43 ; 27 W. L. R. 372. Gould, In re, 28 W. L. R. 85. Govan V. Wiley, 15 App. D. C. 233 ; 27 W. L. R. 516. Grafton v. Paine, 7 App. D. C. 255; 33 W. L. R. 806. Dismissed in 168 U. S. 704. Cited in 13 App. D. C. 198. Graham v. Fitch, 13 App. 569 ; 37 W. L. R. 43. Grand Fountain of U. O. of True Reformers, Brown v., 34 W. L. R. 750; 28 App. D. C. 200. Granite Co. v. Harrison Granite Co., 23 App. D. C. 1 ; 31 W. L. R. 759. Grant, Colburn v., 16 App. 107 ; 39 W. L. R. 245. Affirmed in 181 U. S. 601. Grant, Darnell v., 16 App. 589. Grant v. United States, 28 App. D. C. 169 ; 34 W. L. R. 654. Grant, Washington & Georgetown R. R. Co. v., 11 App. 107; 35 W. L. R. 343. Gray v. District of Columbia, 1 App. D. C. 30 ; 21 W. L. R. 387. Gray, District of Columbia v., 1 App. D. C. 500 ; 23 W. L. R. 10. Gray v. District of Columbia, 6 App. D. C. 314; 33 W. L. R. 34. Gray, National Safe Deposit, Savings & Trust Co. v., 13 App. 376 ; 36 W. L. R. 179. Grayson, Talbott v., 34 App. D. C. 55 ; 33 W. L. R. 454. Affirmed in 300 U. S. 257. Grayson, Warner v., 24 App. D. C. 55 ; 32 W. L. R. 454. Affirmed in 200 U. S. 257. Grayson, Wood v., 16 App. 174 ; 38 W. L. R. 375 ; 32 App. 432 ; 31 W. L. R. 663. Appeal dismissed in 200 U. S. 357. Green, District of Columbia v., 35 W. L. R. 363 ; 29 App. D. C. 296. Green, Luckett v., 1 App. D. C. 93 ; 31 -W. L. R. 590. Green, Mcintosh v., 35 App. D. C. 456 ; 35 W. L. R. 423. Green v. Mann, 19 App. D. C. 243; 30 W. L. R. 57. Green v. Stewart, 23 App. D. C. 570 ; 32 W. L. R. 409. Writ of error dismissed in 199 U. S. 611. Cited in 27 App. D. C. 234. Green v. United States, 35 App. D. C. 549 ; 33 W. L. R. 535. Greenwood v. Dover, 33 App. D. C. 351. Cited in 34 App. D. C. 304; 36 76. 541. Gregory, Giesey v., 15 App. 49 ; 27 W. L. R. 416. Griffin v. Swenson, 15 App. D. C. 135. Cited in 17 App. D. C. 504; 19 App. D. C. 390. Griffin V. United States ex rel. Le Cuyler, 36 W. L. R. 103; 30 App. D. C 291 Griffith, In re Will of, 31 W. L. R. 15. Grimm, Bond v., 34 W. L. R. 724. Grimshaw, Hopkins v., 17 App. 1 ; 28 W. L. R. 614. Grimshaw, Hopkins v., 165 U. S. 342 ; 41 L. Ed. 739 ; 17 S. Ct. 401. Grinder, Mudd v., 1 App. D. C. 418 ; 21 W. L. R. 783. Griswold, In re, 9 App. 496 ; 25 W. L. R. 84. Groff V. Miller, 30 App. D. C. 353 ; 30 W. L. R. 434. Cited in 20 App. D. C. 393 ; 32 App. D. C. 352, 353 ; 189 U. S. 85. Groome, United States v., 13 App. 460. Tabi,i; of Casbs. xli Gros V. Norment, 34 W. L. R. 656 ; 30 App. D. C. 574. Guarantee Savings, Loan & Investment Co. v. Pendleton, 14 App. 384; 27 W. L. R. 233. Cited in 30 App. D. C. 219 ; 24 lb. 228. Guenther v. Metropolitan R. R. Co., 23 App. D. C. 493 ; 33 W. L. R. 422. Cited in 25 App. D. C. 46. Guerdrum, Slye v., 29 App. D. C. 550; 35 W. L,. R. 340. Guerin v. Macfarland, 37 App. D. C. 478 ; 34 W. L. R. 393. Gumdersheimer, Armour & Co. v., 33 App. D. C. 310; 32 W ly. R. 117, 168. Gundersheimer v. Earnshaw, 13 App. 178 ; 36 W. L. R. 438. Gurley v. MacLennan, 17 App. D. C. 170 ; 38 W. L. R. 830. Cited in 18 App. D. C. 508, 514. Guthrie v. Welch, 24 App. D. C. 563 ; 33 W. L. R. 162. Guy V. District of Columbia, 35 App. D. C. 117 ; 33 W. L. R. 165. Gwin V. Brown, 21 App. D. C. 395 ; 31 W. L. R. 338. Gwynn, Fields v., 19 App. 99 ; 39 W. L. R. 834. Gwynn v. Gwynn, 11 App. 564; 26 W. L. R. 41. Haines, Punk v., 30 App. 393. Haines & Matteson, Funk v., 30 App. 385. Halcomb, French v., 36 App. D. C. 307. Haley, Peck v., 31 App. 334; 31 W. L. R. 145. Hall, Carver v., 3 App. D. C. 170; 33 W. L. R. 390. Hall V. Kimball, 5 App. D. C. 475; 33 W. L. R. 300. Hall & Ruckel v Ingram, 38 App. D. C. 454. Hallam v. Oppenheimer, 3 App. D. C. 329; 23 W. L. R. 336, 691. Cited in 18 App. D. C. 358 ; 19 lb. 365. Halle, Slaughter v., 31 App. 19. Haller, District of Columbia v., 4 App. D. C. 405; 22 W. L. R. 761. Haller & Richards Co., National Wall Paper Co. v., 24 W. L. R. 650. HaHwood v. Laylor, 31 App. D. C. 61. Cited in 34 App. D. C. 390. Hallwood, McCormick v., 30 App. D. C. 106 ; 130 O. G. 1487. Hamacher, Slater v., 15 App. 394; 37 W. L. R. 671. Hamacher, Slater v., 15 App. 558 ; 39 W. L. R. 115. Hamburg-Bremen Ins. Co. v. Lewis, 4 App. D. C. 66 ; 32 W. L. R. 617. Hamilton, Rathbone v., 4 App. D. C. 475; 33 W. L. R. 766. Hamilton v Rathbone, 9 App. 48; 34 W. L. R. 390. Reversed in 175 U. S. 414. Cited in io App. D. C. 506; 34 lb. 133. Hamilton v. Shillington, 19 App. D. C. 368; 30 W. L. R. 39. Hamilton v. United States, 26 App. D, C. 283 ; 34 W. L. R. 558. Cited in 26. App. D. C. 534. Hammersley, McCormick v., 1 App. D. C. 313 ; 21 W. L. R. 775. Hammett, Metropolitan R, R. Co. v., 13 App. 370; 36 W. L. R. 763. Hammond v. Basch, 24 App. D. C. 469. Cited in 37 App. D. C. 48, 55, 77 522 Hammond, Lawrence v., 4 App. D. C. 467 ; 33 W. L. R. 749. Hammond, Warthen v., 5 App. D. C. 167; 33 W. L. R. 50. Hammond, Woarms v., 5 App. D. C. 338 ; 33 W. L. R. 131. Hancock, Sturgis v., 4 App. D. C. 289; 33 W. L. R. 697. Handley v. Macfarland, 34 W. L. R. 114. Hanlon, Tuohy v., 18 App. 225 ; 29 W. L. R. 417. Hannan v. District of Columbia, 12 App. 265 ; 36 W. L. R. 202. Cited in 19 App. D. C. 218, 225, 336; 20 lb. 37; 22 lb. 486. Hansel v. Chapman, 3 App. D. C. 361 ; S3 W. L. R. 140. Hansen v. Dean, 39 App. D. C. 113 ; 139 O. G. 483. Hanson, Lotterhand v., 23 App. D. C. 373. Hanson, Posey v., 10 App. 496 ; 35 W. L. R. 399. Hanson, Roe v., 19 App. 559. Harbison v. Metropolitan R. R. Co., 9 App. 60 ; 34 W. L. R. 438. Cited in 13 App. D. C. 160 ; 36 lb. 477. Hardesty v. Hosmer, 4 App. D. C. 280 ; 23 W. L. R. 706. Hardware Co., Bond v., 15 App. 73 ; 37 W. L. R. 450. Hardware Co. v. Driggs, 13 App. 373. xlii Table of Cases. Hardy v. United States, 3 App. D. C. 35 ; 23 W. L. R. 336. Cited in 18 App. D. C. 490. Hardy v. Wise, 5 App. D. C. 108 ; 23 W. L. R. 22. Harlan & HoUingsworth Co., District of Columbia v., 36 W. L. R. 82; 30 App. D. C. 270. Harlow v. Carroll, 6 App. D. C. 128 ; 23 W. L. R. 450. Harlow, Bx parte, 3 App. D. C. 203. Harmer, Clark v., 5 App. D. C. 114; 23 W. L. R. 120. Harmer, Clark v., 9 App. 1 ; 24 W. L. R. 345. Harmon, Newbold v., 26 W. L. R. 808. Harper v. Berkeley, 3 App. D. C. 308 ; 22 W. L. R. 339. Harper v. Cunningham, 5 App. D. C. 203; 33 W. L. R. 100. Cited in 9 App. D. C. 161. ■ Harper v. Cunningham, 8 App. D. C. 430 ; 34 W. L. R. 316. Cited in 11 App. D. C. 337. Harper, Davis v., 14 App. 398; 37 W. L. R. 156; 14 App. 463; 27 W. L. R. 494. Harr, Bryan v., 21 App. 190 ; 31 W. L. R. 143. Harr v. Roome, 38 App. D. C. 314 ; 34 W. L. R. 709. Harrington, Wurts v., 10 App. 149; 35 W. L. R. 366. Harris, Elliott v., 24 App. D. C. 11 ; 32 W. L. R. 378. Writ of error dis- missed in 199 U. S. 615. Harris, Elliott v., 33 W. L. R. 290. Harris, Estate of, 33 W. L. R. 390. Harris v. Lang, 37 App. D. C. 84; 34 W. L. R. 176. Cited in 27 App. D. C. 94. Harris v. Leonhardt, 3 App. D. C. 318; 22 W. L. R. 107. Cited in 18 App. D. C. 372 ; 19 76. 581. Harris v. Nixon, 27 App. D. C. 94; 34 W. L. R. 179. Petition for cer- tiorari denied in 301 U. S. 645. Harris v. Stern, 33 App. 164. Harris v. United States, 8 App. D. C. 30; 34 W. L. R. 164. Cited in 18 App. D. C. 370; 36 App. D. C. 81. Harrison Granite Co., Guilford Granite Co. v., 33 App. D. C. 1; 31 W. L. R. 759. Hart V. Hines, 10 App. 366; 35 W. L. R. 217. Harten v. Brightwood Ry. Co., 18 App. D. C. 360; 29 W. L. R. 500. Cited in 20 App. D. C. 391 ; 23 76. 564. Harten v. LofBer, 29 App. D. C. 490 ; 35 W. L. R. 386. Harter v. Barrett, 34 App. D. C. 300. Hartford Fire Ins. Co., Wilson v., 28 W. L. R. 7. Reversed in 17 App. D. C. 14; 38 W. L. R. 583. Hartford Fire Ins. Co., Wilson v., 17 App. D. C. 14 ; 28 W. L. R. 582. Re- versed in 187 U. S. 467. Hartford Fire Ins. Co. v. Wilson, 187 U. S. 467 ; 47 L. Ed. 361 ; 23 S. Ct. 189. Reversing 17 App. D. C. 14. Cited in 127 Fed. R. 556. Hartman v. Ruby, 16 App. D. C. 45; 38 W. L. R. 155. Cited in 37 App. D. C. 233. Hartman, United States v., 34 App. D. C. 156; 32 W. L. R. 490. Harvey v. Miller, 24 App. D. C. 51 ; 32 W. L. R. 459. Hastings, Gallagher v., 21 App. 88. Hauptman v. Carpenter, 16 App. D. C. 524 ; 28 W. L. R. 567. Cited in 19 App. D. C. 112, Hauser, Loomis v., 19 App. 401. Hawkins v. Metropolitan Life Ins. Co., 36 W. L. R. 86. Hawley v. Columbia Ry. Co., 35 App. D. C. 1 ; 33 W. L. R. 150. Hawley, In re, 26 App. D. C. 334 ; 1906 C. D. 576 ; 121 O. G. 691. Hawley Furnace Co., Purity Ice Co. v., 22 App. 573; 31 W. L. R. 743. Hay, Holzendorf v., 20 App. 576; 30 W. L. R. 835. Dismissed in 194 U. S. 373. Hay, United States ex rel. Holzendorf v., 30 App. 576; 30 W. L. R. 835. Hay, Whitney v., 15 App. 164 ; 37 W. L. R. 430. Affirmed in 181 U. S. 77. Table or* Cases. xliii Hayes v. Burns, 35 App. D. C. 242 ; 33 W. I,. R. 300. Appeal dismissed in 301 U. S. 650. Hayes, In re, 27 App. D. C. 393 ; 1906 C. D. 697 ; 123 O. G. 1000. Hayes v. Palmer, 31 App. D. C. 450; 31 W. L. R. 271. Hayman, United States v., 24 App. D. C. 158 ; 33 W. L. R. 491. Hayne v. Mclntire, 7 App. D. C. 449; 34 W. L. R. 58. Hayward v. Holman, 1 App. D. C. 332 ; 31 W. L. R. 763. Hayward v. Mayse, 1 App. D. C. 133 ; 31 W. I,. R. 619. Hayward v. Tschiffely, 33 W. L. R. 777. Hayzel v. Columbia Ry. Co., 19 App. D. C. 359 ; 30 W. L. R. 198. Cited in 25 App. D. C. 404. Hazel, District of Columbia v., 16 App. 283 ; 38 W. L. R. 372. Hazelton v. Miller, 35 App. D. C. 337 ; 33 W. L. R. 217. Affirmed in 303 U. S. 71. Hazelton v. Sheckles, 303 U. S. 71. Affirming 35 App. D. C. 337. Hazleton v. Le Due, 10 App. 379 ; 35 W. L. R. 380. Heald, Parker v., 39 App. D. C. 35 ; 35 W. L. R. 116. Hebbard, Soley v., 5 App. D. C. 99 ; 33 W. L. R. 56. Heiberger, National Safe Deposit, Savings & Trust Co. v., 19 App. 506; 30 W. L. R. 309. Heiberger v. Worthington, 23 App. D. C. 565; 32 W. L. R. 361. Hein v Buhoup, 11 App. D. C. 393; 25 W. L. R. 686; 81 O. G. 3088; 1897 C. D. 772. Cited in 18 App. D. C. 146. Hein v. Pungs, 9 App. 493. Heinz v. Macfarland, 30 App. D. C. 324; 30 W. L. R. 392. Appeal dis- missed in 191 U. S. 566. Heirs of Carroll, Conroy v., 34 W. L. R. 517. Heiskell, Adriance, Piatt & Co. v., 8 App. 240 ; 24 W. L. R. 317. Held V. Walker, 25 App. D. C. 486 ; 33 W. L. R. 440. Helphenstine v. Downey, 7 App. D. C. 343; 24 W. L. R. 7. Cited in 9 App. D. C. 476 Hendley v. Clark, 8 App. D. C. 165; 24 W. L. R. 197. Cited in 9 App. D. C. 332 ; 10 76. 220 ; 11 Ih. 358, 503 ; 13 Ih. 108 ; 30 Ih. 361 ; 21 Ih. 449 ; 23 Ih. 57. Hendrickson, Silverman v., 19 App. 381. Henry v. Doble, 27 App. D. C. 33 ; 1906 C. D. 654 ; 123 O. G. 1398. Hensey, Mercantile Trust Co. v., 31 App. 38; 31 W. L. R. 96. Hensey, Mercantile Trust Co. v., 27 App. D. C. 310; 34 W. L. R. 306. Affirmed in 205 U. S. 298. Hensey, Strauss v., 7 App. D. C. 389; 23 W. L. R. 842. Hensey, Strauss v., 9 App. 541; 35 W. L. R. 31. Hepburn, Mason v., 13 App. 86. Herbert, Johns v., 3 App. D. C. 485 ; 33 W. L. R. 281. Herman v. FuUman, 33 App. D. C. 259. Cited in 24 App. D. C. 359, 481. Hermann, Maese v., 17 App. 53 ; 38 W. L. R. 694. Affirmed in 183 U. S. 573 Heroult, In re, 5 App. D. C. 90 ; 33 W. L. R. 72 ; 39 App. D. C. 43 ; 127 O. G. 3217. Herrel v. Donovan, 7 App. D. C. 323; 33 W. L. R. 831. Cited in 13 App. D. C. 533 ; 13 Ih. 201, 536 ; 16 Ih. 157. Herrel, Manogue v., 13 App. 455 ; 26 W. L. R. 775. Herrell, Scott v., 27 App. D. C. 395 ; 34 W. L. R. 401. Herrell, Smith v., 11 App. 425 ; 25 W. L. R. 823. Hess V. Horton, 2 App. D. C. 81 ; 33 W. L. R. 73. Cited in 13 App. D. C. 276; 22 Ih. 331. Hess, Howell v., 38 App. 167 ; 34 W. L. R. 639 ; 133 O. G. 1074. Hess, Paul v., 34 App. D. C. 463. "H. E. Thompson" v. Martin, 16 App. 322; 28 W. L. R. 378. Hetzel V. Baltimore & Ohio R. R. Co., 7 App. D. C. 534 ; 34 W. L. R. 38. Reversed in 169 U. S. 26. Heurich, Peck v., 6 App. D. C. 373; 23 W. L. R. 368. Affirmed in 167 U. S. 634. xliv Tablk oif Cases. Hevner, Matthews v., 2 App. D. C. 349 ; 23 W. L. R. 108. Hevner v. Matthews, 4 App. D. C. 380 ; 22 W. L. R. 745. Hewett V. Burritt, 3 App. D. C. 229 ; 22 W. L. R. 304. Hewett, Crutchfield v., 2 App. D. C. 373 ; 22 W. L. R. 127. Hey, Howard v., 18 App. 142. Heylman v. District of Columbia, 27 App. D. C. 563 ; 34 W. L. R. 387. Heyl's Estate, In re, 30 W. L. R. 296. Heyman, Hughes v., 4 App. D. C. 444; 22 W. L. R. 737. Heyman v. Thomas, 32 W. L. R. 792. Hickey, Barbour v., 2 App. D. C. 207; 22 W. L. R. 57. Hickey, Washington & Georgetown R, R. Co. v., 5 App. D. C. 436; 23 W. L. R. 171. Affirmed in 166 U. S. 521. Hickey, Washington & Georgetown R. R. Co. v., 12 App. 269; 26 W. L. R. 198. Hien v. Buhoup, 11 App. D. C. 293 ; 25 W. L. R. 686. Hien, Gallagher v., 25 App. D. C. 77. Hien, Gallagher v. See Ocumpaugh v. Norton. HLen, In re, 79 O. G. 507 ; 1897 C. D. 367. Hien v. Pungs, 9 App. D. C. 492 ; 77 O. G. 1600 ; 1896 O. G. 649. Hildreth. Mannix v., 2 App. D. C. 259 ; 22 W. L. R. 93. Hildreth, Thibodeau v., 25 App. D, C. 320. Hill, Bourn v., 27 App. D. C. 291 Hill V. Hodge, 12 App. 528. Cited in 15 App. D. C. 38; 16 Ih. 567; 17 lb 555. Hill, in re', 26 App. D. C. 318 ; 1906 C. D. 572 ; 121 O. G. 340. Hill V. Moore, 33 W. L. R. 549. Hill V Neale, 27 W. L. R. 235. Hiill V. Parmelee, 9 App. 503 ; 25 W. L. R. 3. Hill, Parsons v., 15 App. 532 ; 28 W. L. R. 19. Hill V. United States, 22 App. D. C. 395; 31 W. L. R. 552. Cited in 26 App. D. C. 384, 388, 527. Hillard v. Brooks, 23 App. D. C. 526. Hiller, Maryland & Washington Ry. Co. v., 8 App. D. C. 289 ; 24 W. L. R. 249, 300. Hillman, Wilkins & Co. v., 8 App. D. C. 469 ; 24 W. L. R. 300. Hilton, Murray v., 8 App. D. C. 281 ; 24 W. L. R. 262. Hine (U. S. to use of), Morse v., 29 App. D. C. 433; 35 W. L. R. 334. Hines v Georgetown Gas. Co., 3 App. D. C. 369 ; 22 W. L. R. 365. Hines, Hart v., 10 App. 366 ; 25 W. L. R. 217. Hinson, Gilman v., 26 App. D. C. 409. Hirner, Kilbourn v., 29 App. D. C. 54; 128 O. G. 1689. Hirsh, Prank v., 3 App. D. C. 491 ; 22 W. L. R. 403. Hisey v. Peters, 6 App. D. C. 68 ; 23 W. L. R. 297. Cited in 10 App. D. C. 153, 179, 183, 467; 11 lb. 279, 596; 13 lb. 529; 14 lb. 53, 135; 15 lb. 504; 16 lb. 566, 572; 17 lb. 38, 351, 555; 18 lb. 146; 21 lb. 205, 212; 27 7b. 234, 293. Hitchcock V. Bigboy, 32 App. D. C. 275 ; 31 W. L. R. 556. Hitchcock, Cherokee Nation v., 20 App. 185. Affirmed in 187 U. S. 294. Hitchcock, Cox v., 19 App. 347 ; 30 W. L. R. 201. Hitchcock V. Hitchcock, 15 App. D. C. 81 ; 27 W. L. R. 446. Hjtchcock, Irrigation Land & I. Co., 28 App. D. C. 587 ; 35 W. L. R. 130. Hitchcock, Lone Wolf v., 29 W. L. R. 463. Hitchcock, Lone Wolf v., 18 App. 515 ; 30 W. L. R. 166. Hitchcock, Lone Wolf v., 19 App. 315; 30 W. L. R. 166, 241. Af- firmed in 187 U. S. 553. Hitchcock, Morris v., 21 App. 565. Affirmed in 194 U. S. 384. Hitchcock, Naganab v., 25 App. D. C. 200; 33 W. L. R. 248. Af- firmed in 202 U. S. 473. Hitchcock, Phillips v., 19 App. 237, 503; 30 W. L. R. 45. Writ of error dismissed in 189 U. S. 507. Hitchcock, Riverside Oil Co. v., 21 App. 252; 31 W. L. R. 174. Af- firmed in 190 U. S. 316. Tabi^e of Casus. xlv Hitchcock, Roche v., 38 App. D. C. 338; 35 W. L. R. 30. Hitchcock V. United States ex rel. Bigboy, 22 App. 275 ; 31 W. L. R. 556. Hitchcock, United States ex rel. Cox v., 19 App. 347 ; 30 W. L. R. 201. Hitchcock, United States ex rel. Phillips v., 19 App. 237, 503; 30 W. L,. R. 45. Dismissed in 189 U. S. 507. Hitchcock, United States ex rel. Roche v., 35 W. L. R. 30; 28 App. D. C. 338. Hitchcock, United States ex rel West v., 29 W. L. R. 704. Hitchcock, United States ex rel. West v., 19 App. 333; 30 W. L. R. 186. Hitchcock, West v., 19 App. 333, 30 W. L. R. 136. Hitchcock, West v., 26 App. D. C. 290; 34 W. L. R. 1. Hitz V. Jenks, 16 App. D. C. 530; 28 W. h. R. 630. Reversed in 185 U. S. 155. Hitz V. Jenks, 185 U. S. 155 ; 46 L. Ed. 851 ; 22 S. Ct. 598. Reversing 16 App. D. C. 530. Cited in 124 Fed. R. 352. Hodge, Hill v., 13 App. 528. Hodge, National Bank of the Republic v., 3 App. D. C. 140; 23 W. L. R. 299. Hodges, In re, 38 App. D. C. 535; 128 O. G. 887. Hodgkin, United States Mut. Accident Assn. v., 4 App. D. C. 516; 32 W. L. R. 789. Hodgson, Colhoun v., 5 App. D. C. 21 ; 23 W. L. R. 810. Hoeke, Gleason v., 5 App. D. C. 1; 23 W. L. R. 809. Hoey, In re, 28 App. D. C. 416; 137 O. G. 3817. Hof, Capital Traction Co. v., 24 W. L. R. 646. Hof, Capital Traction Co. v., 174 U. S. 1 ; 43 L. Ed. 873; 19 S. Ct. 580. Affirming 10 App. D. C. 305. Hof V. Capital Traction Co. See United States ex rel. Co. V. O'Neal. Hoffman, Lindemyer, 18 App. 1. Hoffman, Rolfe v., 26 App. D, C. 336. Hogan, Drevi^ v., 26 App. D. C. 55; 33 W. L. R. 488. Holcomb V. Bearing, 8 App. D. C. 298 ; 24 W. L. R. 236. D. C. 57. Holcomb V. Wright, 5 App. D. C. 76; 33 W. L. R. 24. in 163 U. S. 689. Cited in 35 App. D. C. 519. Holden v. United States, 24 App. D. C. 318; 33 W. L. R. 34. Petition for certiorari denied in 196 U. S. 639. Holladay, Jones v., 2 App. D. C. 279 ; 22 W. L. R. 169, Holland, Bailey v., 7 App. D. C. 184 ; 23 W. L. R. 813. Hollidge V. Moriarty, 17 App. D. C. 520 ; 29 W. L. R. 248. Holman, Hayward v., 1 App. D. C. 322 ; 21 W. L. R. 763. Holmead v. Barnard, 29 App. D. C. 431 ; 35 W. L. R. 370. Holmes, Behren v., 29 W. L. R. 76. Holsclaw, Sobey v., 28 App. D. C. 65 ; 126 O. G. 3041. Holt's Estate, In re, 25 W. L. R. 382. Holt, IngersoU v., 15 App. 519. Holt, Inglehart v., 13 App. 68 ; 36 W. L. R. 3. Holt, Kidd V. See Inglehart v. Holt. Holt, Throckmorton v., 13 App. 553. Reversed in 180 U. S. 552. Holtman, McCarthy v., 19 App. 150 ; 30 W. L. R. 23. Holton, District of Columbia v., 15 App. 386 ; 28 W. L. R. 60. Holtzman v. Capital Construction Co., 33 W. L. R. 531. Holtzman, Capital Construction Co., 27 App. D. C. 125; 34 W. L. R. 233. Holtzman v. Douglas, 5 App. D. C. 397; 33 W. L. R. 146. Affirmed in 168 U. S. 278. Cited in 12 App. D. C. 53. Holtzman v. Linton, 27 App. D. C. 241 ; 34 W. L. R. 303. Holtzman v. United States, 14 App. 454; 37 W. L. R. 385. Cited in 24 App. D. C. 27; 25 Ih. 256. Holzendorf (U. S. ex rel.) v. Hay, 20 App. 576; 30 W. L. R. 825. Writ of error dismissed in 194 U. S. 373. Brightwood Ry. Cited in 24 App, Appeal dismissed xlvi Table of Cases. Home for Incurables v. Noble, 172 U. S. 383. Reversing 10 App. D. C. 56. Hooker, Merrillat v., 36 W. L. R. 40. Hooper v. Stuart, 23 App. D. C. 434 ; 32 W. L. R. 381. Hoover, Kansas City Packing Co. v., 1 App. D. C. 368; 21 W. L. R. 710. Hope V. Voight, 35 App. D. C. 32. Hopkins v. Grimshaw, 17 App. D. C. 1 ; 28 W. L. R. 614. Hopkins v. Grimshaw, 165 U. S. 342; 41 L. Ed. 739; 17 S. Ct. 401. Re- versing Sup. Ct. D. C. Cited in 187 U. S. 40; 117 Fed. R. 554; 136 Fed. Rep. 7; 133 Fed. R. 657. Hopkins, In re, 39 App. D. C. 118 ; 138 O. G. 890. Hopkins, Ohio National Bank v., 8 App. 146 ; 24 W. L. R. 161. Hopkins v. United States, 4 App. D. C. 430; 22 W. L. R. 838. Cited in 24 App. D. C. 409. Hopp V. Pickford, 35 W. L. R. 436 ; 30 App. D. C. 81. Horine v. Wende, 39 App. D. C. 415 ; 139 O. G. 3858. Horn V. Foley, 13 App. 184; 36 W. L. R. 466. Horning, Easterling v., 36 W. L. R. 53 ; 30 App. D. C. 325. Horton, Hess v., 3 App. D. C. 81; 33 W. L. R. 73. Horton v. United States, 15 App. D. C. 310; 27 W. L. R. 706. Cited in 16 App. D. C. 510; 36 lb. 393. Hosmer, Hardesty v., 4 App. D. C. 380 ; 22 W. L. R. 706. Hotel Co. V. District of Columbia, 23 App. D. C. 272 ; ^3 W. L. R. 163. Hotel Co. V. United States Electric Lighting Co., 17 App. 356; 29 W. L. R. 71. Houghton, Cortelyou v., 27 App. D. C. 188; 34 W. L. R. 190. Modi- fied in 208 U. S. 149. Houghton V. Meyer, 308 U. S. 149. Modifying 27 App. D. C. 188; 34 W. L. R. 190. Houghton V. Payne, 31 W. L. R. 178. Cited in 194 U. S. 88. Houghton, Payne v., 22 App. 234; 31 W. L. R. 390. Affirmed in 194 U. S. 88. Cited in 33 App. D. C. 463. Houghton V. Payne, 194 U. S. 88; 48 L. Ed. 888; 24 S. Ct. 590. Af- firming 33 App. D. C. 334; 31 W. L. R. 390. Cited in 194 U. S. 105, 111. Houston, Eastman v., 18 App. 135. Howard v. Chesapeake & Ohio R. R. Co., 11 App. 300; 35 W. L. R. 750, 759. Cited in 15 App. D. C. 438; 17 lb. 374; 21 lb. 158; 23 76. 19, 21. Howard, Chesapeake &■ Ohio R. R. Co., 14 App. 262; 27 W. L. R. 146. Affirmed in 178 U. S. 153. Howard v. Citizens' Bank & Trust Co., 13 App. 222 ; 36 W. L. R. 101. Howard v. Evans, 34 App. D. C. 127 ; 33 W. L. R. 407. Howard v. Hey, 18 App. D. C. 143. Cited in 21 App. D. C. 64, 529; 23 lb. 74; 37 lb. 293. Howard, Whitney v., 21 App. 218. Howell V. Hess, 28 App. D. C. 167 ; 34 W. L. R. 639 ; 132 O. G. 1074. Howell V. Schneider, 34 App. D. C. 533 ; 33 W. L. R. 82. Howes V. District of Columbia, 2 App. D. C. 188; 22 W. L. R. 41. Cited in 21 App. D. C. 471 ; 24 lb. 530 ; 25 lb. 335. Howgate, Petition of. In re, 5 App. D. C. 74. Howgate v. United States, 7 App. D. C. 317; 24 W. L. R. 518. Cited in 15 App. D. C. 319. Howgate v. United States, 3 App. D. C. 277; 22 W. L. R. 345, 838. Cited in 11 App. D. C. 48. Howison V. Masson, 39 App. D. C. 338; 35 W. L. R. 357. Rowland, MacKie v., 3 App. D. C. 461; 33 W. L. R. 435. Hubbard v. Perlie, 35 App. D. C. 477; 33 W. L. R. 483. Huebel v. Bernard, 15 App. D. C. 510. Hufty, V. District of Columbia, 13 App. 175 ; 26 W. L. R. 507. Hufty (U. S. ex rcl.) v. Trimble, 14 App. 414; 27 W. L. R. 303. Hughes V. Brennan Construction Co., 24 App. D. C. 90; 33 W. L. R. 393. Tabi,e; of Cases. xlvii Hughes V. Heyman, 4 App. D. C. 444 ; 23 W. L. R. 737. Cited in 17 App. D. C. 519. Hughson V. Richmond & Danville R. R. Co., 2 App. D. C. 98; 23 W. L. R. 55. Cited in 23 App. D. C. 122. Huidekoper, McAfee v., 9 App. 36; 24 W. L. R. 366. Huidekoper, Sullivan v., 27 App. D. C. 154 ; 34 W. L. R. 254. Hulett V. I;ong, 15 App. D. C. 384. Cited in 17 App. D. C. 555; 34 76. 483; 36 Ih. 69. Hulick, Faul z/., 18 App. 9; 29 W. L. R. 171. Reversed in 187 U. S. 401. Hulick, French v., 38 W. L. R. 391. Hulick V. Young Women's Christian Home, 38 W. L. R. 391. Hume V. Bowie, 13 App. 286; 26 W. L. R. 690. Hume V. Riggs, 12 App. 355. Cited in 13 App. D. C. 469 ; 15 Ih. 356 ; 27 Ih. 494. Humphrey v. Conger, 7 App. D. C. 23 ; 23 W. L. R. 425. Humphrey v. Lipphard, 28 App. D. C. 355 ; 34 W. L. R. 788. Affirmed in 309 U. S. 264. Humphreys, Evans v., 9 App. D. C. 392; 24 W. L. R. 782. Humphries, District of Columbia v., 11 App. 68; 25 W. L. R. 398. Humphries, District of Columbia v., 12 App. 133. Humphries v. District of Columbia, 174 U. S. 190; 43 L. Ed. 944; 19 S. Ct. 637. Cited in 187 U. S. 343, 345. Hundhausen, Sachs v., 21 App. 511. Hunt V. McCaslin, 10 App. 527; 25 W. L. R. 538. Cited in 14 App. D. C 52 Hunt V. Springfield Fire & Marine Ins. Co., 20 App. 48 ; 30 W. L. R. 636. Affirmed in 196 U. S. 47. Hunt V. Whitehead, 19 App. D. C. 116 ; 30 W. L. R. 223. Hunter, Eckington & Soldiers' Home Ry. Co. v., 6 App. D. C. 287; 23 W. L. R. 401. Hunter v. Phoenix Life Ins. Co., 12 App. 373. Hunter v. Stikeman, 13 App. 214. Cited in 15 App. D. C. 161; 17 Ih. 336. Huntt, Ex parte, 10 App. 275; 25 W. L. R. 84. Hurdle v. Washington & Georgetown R. R. Co., 8 App. D. C. 120; 24 W. L. R. 132. Hurst V. Saunders, 5 App. D. C. 66 ; 22 W. L. R. 841. Hurt, Raub v., 24 App. D. C. 211 ; 32 W. L. R. 701. Huson, Yates v., 8 App. D. C. 93 ; 24 W. L. R. 214. Huston, Lumberman's National Bank v., 3 App. D. C. 202; 22 W. L. R. 358. Affirmed in 167 U. S. 303. Hutchins v. Langley, 37 App. D. C. 334; 34 W. L. R. 486. Hutchins v. Maneely, 11 App. 88 ; 25 W. L. R. 487. Cited in 12 App. D. C. 234. Hutchins v. Munn, 22 App. 88; 31 W, L. R. 344. Hutchins v. Munn, 38 App. D. C. 271; 34 W. L. R. 704. Affirmed in 209 U. S. 246. Hutchinson v. Brown, 8 App. D. C. 157 ; 24 W. L. R. 219. Hutchinson, DeVaughn v., 165 U. S. 566; 41 L. Ed. 837; 17 S. Ct. 461. Affirming 3 App. D. C. 50. Hutchinson, District of Columbia v., 1 App. D. C. 403; 21 W. L. R. 780. Hutchinson v. Worthington, 7 App. D. C. 548 ; 24 W. L. R. 97. Cited m 18 App. D. C. 252. Huysman v. Evening Star Newspaper Co., 12 App. 586. Cited in 25 App. D C 399 Hyde'z;. United States, 27 App. D. C. 363; 34 W. L. R. 494. Hyde v. Shine, 199 U. S. 63. Ice Company v. Eastern Trust & Banking Co., 17 App. D. C. 432 ; 29 W. L. R. 55. Affirmed in 188 U. S. 626. Ice Company v. Furnace Co., 22 App. 573 ; 31 W. L. R. 742. Ice Company, Trust & Banking Co. v., 14 App. 304 ; 27 W. L. R. 182. xlviii Table of Cases. Infanta Maria Teresa, The, 188 U. S. 283. Ingersoll v. Holt, 15 App. D. C. 519. Inglehart v. Holt, 12 App. 68 ; 26 W. L. R. 3. Inglehart v. Inglehart, 26 App. D. C. 209; 33 W. L. R. 711. Affirmed in 204 U. S. 478. Ingram, Hall & Ruckel v., 28 App. D. C. 454. In re Adams, 24 App. D. C. 275. Cited in 27 App. D. C. 228. In re Adriaans, 17 App. D. C. 39 ; 28 W. L. R. 679 ; 35 W. L. R. 66. In re A. G. Spalding & Bros., 27 App. D. C. 314. In re American Circular Loom Co., 126 O. G. 2191; 28 App. D. C. 446, 450. In re American Glue Co., 27 App. D. C. 391. In re Ams., 29 App. D. C. 91. In re Appeal of Forg, 2 App. D. C. 58. In re Appeal of Drawbaugh, 3 App. D. C. 236. In re Appeal of Heroult, 5 App. D. C. 90 ; 23 W. L. R. 72. In re Appeal of Mower, 15 App. D. C. 144. In re Appeal of Schaeffer, 2 App. D. C. 1. In re Atkins & Co., 29 App. D. C. 385. In re Baker, 26 App. D. C. 363. In re Barratt, 11 App. 177; 25 W. L. R. 532. Cited in 16 App. D. C. 350, 565. In re Barratt, 14 App. 255. Cited in 15 App. D. C. 517. In re Bedford, 14 App. 376. In re Beswick, 16 App. 345. Cited in 19 App. D. C. 400. In re Bradshaw, 29 W. L. R. 590. In re Briede, 27 App. D. C. 298. In re Briggs, 9 App. 478 ; 25 W. L. R. 75. In re Bryant, 9 App. D. C. 447; 24 W. L. R. 826. In re Butterfield, 23 W. L. R. 84. In re Cahn, Belt & Co., 27 App. D. C. 173. Cited in 27 App. D. C. 391. In re Carpenter, 24 App. D. C. 110. In re Carson, 26 W. L. R. 152. In re Chapman, 156 U. S. 211; 39 L. Ed. 401; 15 S. Ct. 331. Cited in 190 U,. S. 557; 114 Fed. R. 966. In re Clunies, 28 App.'D. C. 18. In re Colton, 21 App. D. C. 17. In re Condemnation of Lands in Subdivision 419, 24 W. L. R. 65. In re Creveling, 25 App. D. C, 530. In re Cunningham, 21 App. D. C. 29. In re Davenport, 23 App. D. C. 370. Cited in 23 App. D. C. 379. In re Denton, 12 App. 504. In re Dilg, 25 App. D. C. 9. In re Draper, 10 App, 545 ; 25 W. L. R. 531. Cited in 14 App. D. C. 184, 477; 15 /&. 519. In re Drawbaugh, 9 App. 219; 24 W. L. R. 694. Cited in 14 App. D. C. 46. In re Duncan, 28 App. D. C. 457. In re Eleventh Street Extension, 35 W. L. R. 320. In re Estate of Atwood, 2 App. D. C. 74. In re Estate of Belcher, 21 W. L. R. 827. In re Estate of Coit, 3 App. D. C. 246 ; 22 W. L. R. 319. In re Estate of Easton, 23 W. L. R. 789. In re Estate of Gault, 32 W. L. R. 726. In re Estate of Harris, 33 W. L. R. 290. In re Estate of Heyl, 30 W. L. R. 296. In re Estate of Holt, 25 W. L. R. 382. In re Estate of McKnight, 1 App. D. C. 28. In re Estate of Obold, 30 W. L. R. 345. In re Estate of Pritchard, 30 W. L. R. 9. In re Estate of Tucker, 34 W. L. R. 261. In re Estate of Utermehle, 30 W. L. R- 251. ; Table of Cases. xlix In re Fay, 15 App. 515. In re Poster, 19 App. 391. In re Frasch, 20 App. 398; 27 App. 25. In re French, 37 App. D. C. 25. In re Fraser, 38 W. L. R. 39. Affirmed in 28 W. L- R. 256. In re Freeman, 23 App. D. C. 226. In re Garrett, 27 App. D. C. 19. Cited in 27 App. D. C. 77. In re Gassenheimer, 24 App. D. C. 312; 32 W. L. R. 808. Cited in 36 App. D. C. 441. In re Gould, 28 W. L. R. 85. In re Griswold, 9 App. 496; 35 W. L. R. 84. Cited in 14 App. D C. 184. In re Hawley, 36 App. D. C. 334. In re Hayes, 37 App. D. C. 393. In re Hein, 79 O. G. 507 ; 1897 C. D. 367. In re Heroult, 39 App. D. C. 43; 127 O. G. 3217. In re Heyl's Estate, 30 W. L. R. 296. In re Hill, 26 App, D. C. 318. In re Hodges, 28 App. D. C. 525 ; 128 O. G. 887. In re Hoey, 28 App. D. C. 416; 127 O. G. 2817. In re Hopkins, 29 App. D. C. 118; 128 O. G. 890. In re Howgate, 5 App. D. C. 74. In re Iwan, 17 App. 566. In re Johnson, 31 W. L. R. 212. In re Johnson Company, 30 W. L. R. 118. In re Key, 189 U. S. 84. In re Klemm, 21 App. D. C. 186. In re Lanzilli, 21 App. D. C. 433. In re Locke, 17 App. 314. In re Lowry, 14 App. 473. In re Lyon, 34 App. 679. In re McCreery, 13 App. 517. In re Macfarland et al., 36 W. L. R. 114. In re Mclntire 28 W. L. R. 259. In re McNeal, 20 App. 394. In re McNiel, 28 App. D. C. 461. In re Mark Cross Company, 26 App. D. C. 101. In re Marshutz, 13 App. 338. Cited in 30 App. D. C. 301. In re Marsden, 14 App. 223, In re Messinger, 13 App. 533. In re Millett, 18 App. 186. In re Mills, 25 App. D. C. 377. In re Moeser, 37 App. D. C. 307. In re Mond's Appeal, 16 App. 351. In re Moran, 3 App. D. C. 223 ; 22 W. L. R. 101. In re Moss, 33 App. D, C. 474. In re Mower, 15 App. 144. Cited in 17 App. D. C. 343 ; 19 Ih. 380 ; 24 Ih. 270; 26 Ih. 418. In re Murdock, 35 W. L. R. 136. . In re Musgrave, 10 App. 164; 25 W. L. R. 285. Cited in 11 App. D. C. 590. In re Mygatt, 36 App. D. C. 366. In re National Phonograph Co., 29 App. D. C. 142; 128 O. G. 1295. In re Neill, 11 App. 584. Cited in 13 App. D, C, 236; 14 Ih. 237; 16 Ih. 565 ; 20 Ih. 301. In re Nimmy, 13 App. 565. In re Pritchard's' Estate, 30 W. L. R. 9. In re Schraubstadter, 26 App. D. C. 331. In re Scott, 25 App. D. C. 307. In re Seabury, 23 App. D. C. 377. In re Second Street Extension, 36 W. L. R. 16. In re Smith, 14 App. 181. Cited in 15 App. D. C. 519. 1 Tabi. Dempsey. See District of Columbia v. Dempsey. Telephone Co., Manning v., 26 W. L. R. 499. Telephone Co., Manning v., 28 W. L. R. 97. Telephone Co., Manning v., 32 W. L. R. 699. Telephone Co., Manning v., 18 App. D. C. 191; 29 W. L. R. 342. Re- versed in 186 U. S. 238. Telephone Co., Nolan v., 29 W. L. R. 24. Tenney v. Taylor, 1 App. D. C. 223; 21 W. L. R. 649. Thibodeau v. Dickinson, 25 App. D. C. 316. Cited in lb. 320. Thibodeau v. Hildreth, 25 App. D. C. 320. Thomas, Dobbins v., 26 App. D. C. 157; 33 W. L. R. 743. Thomas, Heyman v., 32 W. L. R. 792. Thomas, Johnson v., 23 App. D. C. 141; 33 W. L. R. 69. Dismissed in 197 U. S. 619. Thomas, Malnati v., 26 App. D. C. 277; 34 W. L. R. 5. Thomas, National Union v., 10 App. D. C. 277 ; 25 W. L. R. 200. Thomas, Presbrey v., 1 App. D. C. 171 ; 21 W. L. R. 659. Thomas v. Presbrey, 5 App. D. C. 217 ; 23 W. L. R. 123. Cited in 17 App. D. C. 520. Thomas, Trissel v., 23 App. D. C. 219. Thomas, Watson v., 33 App. D, C. 65. Thompson v. Conroy, 8 App. D. C. 145; 34 W. L. R. 163. Thompson v. District of Columbia, 21 App. D. C. 395; 31 W. L. R- 305. Thompson, Palmer v., 20 App. D. C. 273 ; 30 W. L. R. 483. Tabi^e op Casb:s. Ixxxvli Thompson, Pickrell v., 13 App. D. C. 449 ; 26 W. L. R. 250. Thompson v. United States, 36 W. L. R. 98 ; 30 App. D. C. 352. Thomson, In re, 26 App. D. C. 419; 1906 C. D. 566: 120 O. G 2756 Cited in 37 App. D. C. 24. Thomson v. Weston, 19 App. D. C. 373. Cited in 24 App. D. C 270 Thorn V. Thorn, 28 App. D. C. 120 ; 34 W. L. R. 433 ; 35 W. L. R. 388. Thresher, Robinson v., 28 App. D. C. 22. Throckmorton v. Holt, 12 App. D. C. 553. Reversed in 180 U. S. 552. Cited in 13 App. D. C. 458 ; 21 lb. 541. Thurston, In re, 36 App. D. C. 315 ; 1906 C. D. 539 ; 120 O. G. 1166. Thyson v. Foley, 1 App. D. C. 182 ; 21 W. L. R. 637. Tichenor, MacCarthy v., 29 W. L. R. 442. Tierney, Reed v., 12 App. D. C. 165 ; 26 W. L. R. 133. Tilling, Murphy v., 2 App. D. C. 130 ; 22 W. L. R. 47. Times Co. v. Wilder, 12 App. D. C. 62. Title Insurance Co., Walker v., 19 App. D. C. 575; 30 W. L. R. 355. Tobin, Consumers' Brewing Co. v., 18 App. D. C. 584; 29 W. L. R. 841. Tobin, Consumers' Brewing Co. v., 19 App. D. C. 353; 30 W. L. R. 170. Tobin V. District of Columbia, 33 App. D. C. 482; 31 W. L. R. 775. Tobriner, White v., 29 W. L. R. 479. Tobriner v. White, 19 App. D, C. 163 ; 29 W. L. R. 838. Todd, Gait v., 5 App. D. C. 350 ; 23 W. L. R. 98. Todd V. Macfarland, 20 App. D. C. 176; 30 W. L. R. 423. Cited in 25 App. D. C. 442, 443. Todd V. Macfarland, 22 App. D. C. 413; 31 W. L. R. 542. Todd V. Macfarland. See Brown v. Macfarland. Toledo Scale Co. v. Garrison, 38 App. D. C. 343; 34 W. L. R. 773. Tolman v. Leonard, 6 App. D. C. 224; 23 W. L. R. 343. Cited in 11 App. D. C. 239; 13 lb. 352; 17 lb. 281; 37 lb. 172; 181 U. S. 578. Tolman v. Tolman, 1 App. D. C. 299 ; 31 W. L. R. 771. Cited in 13 App. D. C. 344; 15 lb. 340; 21 lb. 487; 181 U. S. 578. Torbert v. Bennett, 34 W. L. R. 149. Tournier, In re, 17 App. D. C. 481. Towles V. Tanner, 21 App. D. C. 530; 31 W. L. R. 254. Towles V. United States, 19 App. D. C. 471 ; 30 W. L. R. 286. Towson V. Moore, 11 App. D. C. 377 ; 25 W. L. R. 706. Affirmed in 173 U. S. 17; 43 L. Ed. 597; 19 S. Ct. 333. Towson V. Moore, 173 U. S. 17; 43 L. Ed. 597; 19 S. Ct. 333. Af- firming 11 App. D. C. 377. Cited in 187 U. S. 163; 194 U. S. 347, 412; 123 Fed. R. 912; 131 Fed. R. 588. Towson V. Smith, 13 App. D. C. 48; 26 W. L. R. 393. Traction Co. v. Hof, 34 W. L. R. 646. Traction Co., Hof v. See United States ex rel. Brightwood Ry. Co. v. O'Neal. Traction Co. v. Lusby, 12 App. D. C. 395. Traction Co. v. Offutt, 17 App. D. C. 393; 39 W. L. R. 18. Traction Co. v. Rockwell, 17 App. D. C. 369 ; 39 W. L. R. 41. Tracy v. Leslie, 14 App. D. C. 126. Cited in 15 App. D. C. 25; 16 lb. 566; 17 lb. 555; 21 lb. 10; 25 lb. 316; 36 lb. 407. Trail, Tuohy v., 19 App. D. C. 79 ; 30 W. L. R. 3. Tralles v. Metropolitan Club, 18 App. D. C. 588; 39 W. L. R. 770. Transportation Co. v. District of Columbia, 19 App. D. C. 462. Traver v. Brown, 14 App. D. C. 34. Cited in 15 App. D. C. 27; 17 lb. 344, 470; 18 lb. 147; 19 lb. 377; 21 lb. 64; 23 lb. 74; 24 lb. 468; 25 lb. 313. Travers v. Reinhardt, 25 App. D. C. 567; 33 W. L. R. 406. Affirmed in 305 U. S. 433; 35 W. L. R. 389. Travers v. United States, 6 App. D. C. 450; 23 W. L. R. 469. Tribby, Johnson v., 27 App. D. C. 281 ; 34 W. L. R. 318. Trimble, United States ex rel. Hufty v., 14 App. D. C. 414; 37 W. L. R. 303. Tripler v. Linde, 21 App. D. C. 33. Ixxxviii Table of Cases. Tripler, Ostergren v., 17 App. D. C. 557. Trissel v. Thomas, 23 App. D. C. 319. Trometer v. District of Columbia, 24 App. D. C. 242, 243 ; 32 W. L. R. 763. Cited in 26 App. D. C. 562. Trott, Alfred Richards Brick Co. v., 16 App. D. C. 293; 28 W. L. R. 436. Trott, Alfred Richards Brick Co. v., 23 App. D. C. 284; 32 W. L. R. 177. True Reformers, Brown v., 34 W. L. R. 750. Truman, Giesy v., 17 App. D. C. 449 ; 29 W. L. R. 140. Trust Company v. American Ice Co., 14 App. D. C. 304; 37 W. L. R. 182. Trust Company, American Ice Co. v., 17 App. D. C. 423; 29 W. L. R. 55. Affirmed in 188 U. S. 626. Trust Company v. Bond, 16 App. D. C. 579. Trust Company, Colville v., 10 App. D. C. 56 ; 25 W. L. R. 67. Trust Company, Colville v., 10 App. D. C. 57 ; 35 W. L. R. 67. Trust Company v. Darling, 21 App. D. C. 133 ; 31 W. L. R. 129. Trust Company v. Gray, 13 App. D. C. 376. Trust Company v. Heiberger, 19 App. D. C. 506 ; 30 W. L. R. 309. Trust Company v. Hensey, 21 App. D. C. 38; 31 W. L. R. 96. Trust Co., Howard v., 12 App. D. C. 323. Trust Co. V. Lyon, 21 App. D. C. 122; 31 W. L. R. 112. Trust Company v. Muse, 4 App. D. C. 12. Trust Company, Niles v., 32 App. D. C. 225 ; 31 W. L. R. 426. Trust Company, Noble v. See Colville v. American Security & Trust Co. Trust Co. V. Prudential Ins. Co., 16 App. D. C. 318; 28 W. L. R. 354. Trust Co., Smith v., 12 App. D. C. 192. Trust Company, Standard Oil Co. v., 21 App. D. C. 369. Trust Company, Stant v., 23 App. D. C. 25 ; 32 W. L. R. 38. Trust Company, Sterrett v., 10 App. D. C. 131 ; 25 W. L. R. 139. Trust Company, United States to use of Briscoe v., 33 App. D. C. 155; 33 W. L. R. 53. Trust Company, United States to use of Chapman v., 31 W. L. R. 396. Trust Company, United States to use of Chapman v., 23 App. D. C. 153; 32 W. L. R. 53. Trust Co. V. United States to use of Lincoln, 15 App. D. C. 397; 37 W. L. R. 757. Trust Co., United States to use of Standard Oil Co. v., 30 W. L. R. 778. Trust Co. V. Walker, 33 App. D. C. 583 ; 33 W. L. R. 348. Tschiffely, Hayward v., 33 W. L. R. 777. Tubins v. District of Columbia, 31 App. D, C. 267 ; 31 W. L. R. 460. Tubman v. Baltimore & Ohio R. R. Co., 20 App. D. C. 541. Affirmed in 190 U. S. 38. Tuck, Darneille v., 33 W. L. R. 821. Tucker v. Nebeker, 3 App. D. C. 336; 22 W. L. R. 143. Tucker's Estate, In re, 34 W. L. R. 261. Tuohy V. Hanlon, 18 App. D. C. 235 ; 29 W. L. R. 417. Cited in 19 App. D. C. 275, 376, 378 ; 20 App. D. C. 464 ; 33 App. D. C. 468. Tuohy V. Trail, 19 App. D. C. 79 ; 30 W. L. R. 3. Turnbull v. Curtis, 37 App. D. C. 567; 1906 C. D. 732; 123 O. G. 3312. Turner v. American Security & Trust Co., 39 App. D. C. 460; 35 W. L. R. 303. Turner, Darlington v., 24 App. D. C. 573 ; 33 W. L. R. 114. Reversed in 303 U. S. 195. Turner v. Gottwals, 15 App. D. C. 43 ; 37 W. L. R. 372 Tuttle V. Allen, 35 W. L. R. 50. Twin City National Bank of New Brighton v. Nebeker, 3 App. D. C. 190; 22 W. L. R. 356. Affirmed in 167 U. S. 196. Cited in 167 U. S. 204. TabivU of Cases. Ixxxix Tyler, Arnold v., 10 App. D. C. 175; 25 W. L. R. 250. Tyler v. Kelch, 19 App. D. C. 180. Tyler v. Moses, 13 App. D. C. 428; 26 W. L. R. 771. Cited in 15 App. D. C. 569; 19 Ih. 73. Tyler v. Mutual District Messenger Co., 13 App. D. C. 267; 26 W. L. R. 677. Tyler v. Mutual District Messenger Co., 17 App. D. C. 85; 28 W. L. R. 710. Cited in 26 App. D. C. 204. Tyler v. Pennsylvania Railroad Co., 18 App. D. C. 31; 29 W. L. R. 203. Tyler v. St. Amand, 17 App. D. C. 464. Cited in 19 App. D. C. 389. Tyner v. United States, 23 App. D. C. 334; 32 W. L. R. 258. Cited in 27 App. D. C. 346; 24 lb. 373; 26 Ih. 139, 599. Typographical Union, Adams v., 34 W. L. R. 237. Tyrer v. Chew, 7 App. D. C. 175 ; 33 W. L. R. 731. Cited in 13 App. D. C. 365. Tyrer, Perkins v., 24 App. D. C. 447; 33 W. L. R. 54. Ubhoff V. Brandenburg, 26 App. D. C. 3 ; 33 W. L. R. 473. Uhlfelder, Donaldson v., 31 App. D. C. 489; 31 W. h. R. 428. Ullman v. District of Columbia, 21 App. D. C. 341. Union Distilling Co. v. Schneider, 39 App. B. C. 1 ; 129 O. G. 2503. Union Trust Company v. District of Columbia, 35 W. L,. R. 148 ; 29 App. D. C. 370. United Security Life Ins. & Trust Co. v. Bond, 16 App. D. C. 579; 28 W. L. R. 456. United Security Co. v. Larner, 18 App. D. C. 147; 29 W. L. R. 375. United Security Life Ins. & Trust Co., National Bank of the Republic v., 17 App. D. C. 112; 28 W. L. R. 847. United States, Ainsworth v., 1 App. D. C. 518 ; 21 W. L. R. 806. V. Ainsworth, 3 App. D. C. 483; 22 W. L. R. 404. V. Baltimore & Ohio R. R. Co., 26 App. D. C. 581; 34 W. L. R. 143. Barrett v., 23 App. D. C. 334. Bass v., 20 App. D. C. 232; 30 W. L. R. 546. V. Bates, 30 W. L. R. 312. V. Beavers, 34 W. L. R. 62. Belt v., 4 App. D. C. 25 ; 22 W. L. R. 447. Benson v., 27 App. D. C. 331 ; 34 W. L. R. 366. V. Boyd, 8 App. D. C. 440 ; 24 W. L. R. 298. Brady v., 1 App. D. C. 246 ; 21 W. L. R. 665. Burge v., 26 App. D. C. 524; 34 W. L. R. 210. Byram v., 25 App. D. C. 546 ; 33 W. L. R. 458. V Cadarr, 24 App. D. C. 143; 32 W. L. R. 486. Reversed in 197 U. S. 475. Cited in 24 App. D. C. 157, 159. V. Chambers, 18 App. D, C. 287; 29 W. L. R. 403. Chan Gun v., 9 App. D. C. 290 ; 24 W. L. R. 764. V. Chan Gun. See Chan Gun v. United States. V. Chapman, 164' U. S. 436 ; 41 L. Ed. 504 ; 17 S. Ct. 76, dismissing writ of error in 8 App. D. C. 302. Cited in 193 U. S. 18. Chapman v., 5 App. D. C. 133 ; 23 W. L. R. 17. Chapman v., 8 App. D. C. 302 ; 24 W. L. R. 251. Chase v., 7 App. D. C. 149 ; 23 W. L. R. 733. Clark v., 19 App. D. C. 295 ; 30 W. L. R. 70. Colegrove v., 8 App. D. C. 255 ; 24 W. L. R. 267. Cook v., 26 App. D. C. 427 ; 34 W. L. R. 550. Coratola v., 24 App. D. C. 229 ; 32 W. L. R. 711. Grain v., 2 App. D. C. 549 ; 22 W. L. R. 208. Crawford v., 35 W. L. R. 478, 495 ; 30 App. D. C. 1. Davis v., 16 App. D. C. 442 ; 28 W. L. R. 471. V. Davis, 18 App. D. C. 280; 29 W. L. R. 382. Cited in 18 App. D. C. 288. Davis v., 18 App. D. C. 468 ; 39 W. L. R. 574. xc Table op Cases. United States v. Day, 37 App. D. C. 458 ; 34 W. L. R. 355. De Forest v., 11 App. D. C. 458 ; 26 W. L. R. 346. V. Dewey, 188 U. S. 254; 47 L. Ed. 463; 23 S. Ct. 415. Cited in 188 U. S. 388. V. Drennan, 35 W. L. R. 311. Dunan v., 7 App. D. C. 160 ; 23 W. L. R. 736. Elliott v., 23 App. D. C. 456 ; 32 W. L. R. 293. V. Evans, 28 App. D. C. 264; 34 W. L. R. 739. V. Evans, 34 W. L. R. 756 ; 35 W. L. R. 453 ; 30 App. D. C. 58. Ewing v., 3 App. D. C. 353 ; 33 W. L. R. 367. V. Ewing, 22 App. D. C. 512 ; 31 W. L. R. 710. V. Ewing. See Goff v. United States. Falk v., 15 App. D. C. 446 ; 27 W. L. R. 815. Fallc v., 180 U. S. 636. Dismissing writ of error in 15 App. D. C. 446. Fearson v., 10 App. D. C. 536 ; 25 W. L. R. 526. Fidelity & Deposit Co. v., 187 U. S. 315. Affirming 20 App. D. C. 376. Fields v., 37 App. D. C. 433 ; 34 W. L. 'R. 383. Dismissed in 305 U. S. 292. V. Fleet, 18 App. D. C. 2§7; 29 W. L. R. 403. V. Frizzell, 19 App. D. C. 48 ; 29 W. L. R. 833. Funk v., 16 App. D. C. 478 ; 28 W. L. R. 486. Gale V. See Holtzman v. United States. Gassenheimer v., 26 App. D. C. 433 ; 34 W. L. R. 80. Geist v., 26 App. D. C. 594 ; 34 W. L. R. 257. Goff v., 23 App. D. C. 512 ; 31 W. L. R. 710. Grant v., 28 App. D. C. 169; 34 W. L. R. 654. Green v., 25 App. D. C. 549 ; 33 W. L. R. 535. V. Groome, 13 App. D. C. 460; 26 W. L. R. 803. Hamilton v., 26 App. D. C. 383; 34 W. L. R. 558. Hardy v., 3 App. D. C. 35;. 23 W. L. R. 326. Harris v., 8 App. D. C. 20 ; 24 W. L. R. 164. V. Hartman, 24 App. D. C. 156; 32 W. L. R. 490. V. Hayman, 24 App. D, C. 158; 32 W. L. R. 491. Hill v., 22 App. D. C. 395; 31 W. L. R. 553. Holden v., 34 App. D. C. 318 ; 33 W. L. R. 34. Petition for certiorari denied in 196 U. S. 639. Holtzman v., 14 App. D. C. 454; 27 W. L. R. 385. Hopkins v., 4 App. D. C. 430 ; 22 W. L. R. 838. Horton z'., 15 App. D. C. 310; 27 W. L. R. 706. Howgate v., 3 App. D. C. 277 ; 32 W. L. R. 345, 828. Howgate v., 7 App. D. C. 217; 24 W. L. R. 518. Hyde v., 27 App. D. C. 362 ; 34 W. L. R. 494. V. Jackson, 18 App. D. C. 287; 39 W. L. R. 403. James v. (Appeal from Court of Claims), 202 U. S. 401. Javins v., 11 App. D. C. 345 ; 35 W. L. R. 736. Johnson v., 36 App, D. C. 138; 33 W. L. R. 679. V. Johnson, 26 App. D. C. 136; 33 W. L. R. 776. Kieckhoefer v., 19 App. D. C. 405 ; 30 W. L. R. 219. Knight v., 6 App. D. C. 1 ; 23 W. L. R. 303. Knoll v., 26 App. D. C. 457 ; 34 W. L. R. 94. Petition for certiorari denied in 201 U. S. 643. Kollock v., 9 App. D. C. 430; 25 W. L. R. 41. Lanckton v., 18 App. D. C. 348 ; 29 W. L. R. 494. Latney v., 18 App. D. C. 265; 29 W. L. R. 363. Le Cointe v., 7 App. D, C. 16 ; 23 W. L. R. 483. Lorenz v., 34 App. D. C. 337 ; 32 W. L. R. 823. Petition for certiorari denied in 196 U. S. 640. Lyles v., 30 App. D. C. 559 ; 31 W. L. R. 67. Macartney v., 5 App. D. C. 122. Table of Cases. xci United States, McCaully v., 25 App. D. C. 404 ; 33 W. L. R. 306. Petition for certiorari denied in 198 U. S. 586. McUin v., 17 App. D. C. 323. V. Maloney, 4 App. D. C. 505 ; 22 W. L. R. 785. Cited in 12 App. D. C. 17. Maxey v., 35 W. L. R. 446 ; 30 App. D. C. 63 V. Metropolitan R. R. Co., 21 W. L. R. 787. Miller v., 6 App. D. C. 6 ; 23 W. L. R. 209. V. Mills, 11 App. D. C. 500; 26 W. L. R. 89. Cited in 14 App. D. C. 103 ; 21 Ih. 449 ; 27 /&. 88, 94. V. Morris, 23 W. L. R. 745. Affirmed in 174 U. S. 196; 43 L. Ed. 946 ; 19 S. Ct. 649. V. Morris, 24 W. L. R. 168. Moses v., 16 App. D. C. 428; 28 W. L. R. 598. Affirmed in 166 U. S. 571; 41 L. Ed. 1119; 17 S Ct. 682. Moses v., 19 App. D. C. 290; 30 W. L. R. 56. V. Moss, 35 W. L. R. 36. Moss v., 23 App. D. C. 475 ; 32 W. L. R. 342. Moss v., 29 App. D. C. 188 ; 35 W. L. R. 179. Nelson v., 28 App. D. C. 32 ; 34 W. L. R. 533. Nordlinger v., 24 App. D. C. 406 ; 32 W. L. R. 810. Norman v., 20 App. D. C. 494 ; 30 W. L. R. 810. O'Brien v., 27 App. D. C. 263 ; 34 W. L. R. 546. Paolucci v., 36 W. L. R. 2 ; 30 App. D. C. 217. V. Parker, 35 W. L. R. 6. Peake v., 16 App. D. C. 415 ; 28 W. L. R. 438. Penn Bridge Co. v., 29 App. D. C. 452 ; 35 W. L. R. 287. V. Phillips, 5 App. D. C. 385; 23 W. L. R. 198. Posey v., 26 App. D. C. 302 ; 34 W. L. R. 565. Prather v., 9 App. D. C. 82 ; 24 W. L. Rl 395. Dismissed in 164 U. S. 452. Price v., 14 App. D. C. 391 ; 27 W. L. R. 320. V. Pumphrey, 11 App. D. C. 44; 25 W. L. R. 417. Raymond v., 25 App. D. C. 555; 33 W. L. R. 514. Raymond v., 26 App. D. C. 250; 34 W. L. R. 562. V. Ross, 35 W. L. R. 36. Ryan v., 26 App. D. C. 74 ; 33 W. Iv. R. 516. V. Sampson, 187 U. S. 436. V. Sampson, 19 App. D. C. 419. Reversed in 188 U. S. 283. V. Scott, 27 App. D. C. 291. V. Searles, 25 W. L. R. 384. Shaifer v., 24 App. D. C. 417 ; 33 W. L. R. 4. Petition for certioran denied in 196 U. S. 639. V. Shriver, 25 W. L. R. 414. Smith v., 13 App. D. C. 155 ; 26 W. L. R. 476. Smith v., 172 U. S. 303. Reversing 26 W. L. R. 469. Snell v., 16 App. D. C. 501 ; 28 W. L. R. 518. Snowden v., 2 App! D. C. 89 ; 22 W. L. R 74. Starr v., 8 App, D. C. 552 ; 24 W. L. R. 502. Strather v., 13 App. D. C. 132 ; 26 W. L. R. 469. Taylor v., 7 App. D. C. 27 ; 23 W. L. R. 433. Thompson v., 36 W. L. R. 98 ; 30 App. D. C. 352. Towles v., 19 App. D. C. 471; 30 W. L. R. 286. Travers v., 6 App. D. C. 450 ; 23 W. L. R. 469. Tyner v., 23 App. D. C. 324 ; 32 W. L. R. 258. Waggaman v. See Holtzman v. United States. Wallace v., 18 App. D. C. 152 ; 29 W. L. R 560. V. Wallingsford, 18 App. D. C. 287; 29 W. L. R. 403. V. West, 8 App. D. C. 59 ; 24 W. L, R. 133. West v., 20 App. D. C. 347 ; 30 W. L. R. 582. V. Whitley, 18 App. D. C. 287; 29 W. L. R. 403. V. Williams, 26 W. L. R. 195. xcii Table of CasbS. United States, Williams v., 3 App. D. C. 3:?5; 22 W. L,. R. 457. Winston v., 13 App. D. C. 15Y ; 26 W. L. R. 476. Reversed in 172 U S 303. Yeager v., 16 App. D. C. 356; 28 W. L. R. 554. United States to use of Briscoe v. City Trust, Safe Deposit & Surety Co., 23 App. D. C. 155; 32 W. L. R. 53. to use of Chapman v. City Trust, Safe Deposit & Surety Co., 31 W. L. R. 396. to use of Chapman v. City Trust, Safe Deposit & Surety Co., 23 App. D. C. 153 ; 32 W. h- R- 53. Petition for certiorari denied in 194 U. S. 631. Cited in 23 App. D. C. 155. to use of Hine, Morse v., 29 App. D. C. 433 ; 35 W. L,. R. 334. to use of Lincoln, American Bonding & Trust Co. v., 15 App. D. C. 397; 27 W. L. R. 757. to use of Paynter, American Bonding & Trust Co. v., 23 App. D. C. 535; 32 W. L. R. 362. to use of Preinkert, Blagden v., 18 App. D. C. 370; 29 W. L. R. 401. to use of Smoot, Fidelity & Deposit Co. v., 20 App. D. C. 376; 30 W. L. R. 533. Affirmed in 187 U. S. 315. to use of Standard Oil Co. v. City Trust, Safe Deposit & Surety Co., 30 W. L. R. 778. to use of Standard Oil Co. v. City Trust, Safe Deposit & Surety Co., 21 App. D. C. 369. Cited in 23 App. D. C. 154. to use of Vermont Marble Co. v. Burgdorf, 13 App. D. C. 506. to use of Vermont Marble Co., Burgdorf v., 16 App. D. C. 140. Ap- peal dismissed in 187 U. S. 654. ex rel. Allison, Garfield v., 35 W. L. R. 785; 30 App. D. C. 188, 190. ex rel. A. M. Opisso Y de Ycaza v. Young, 31 W. L. R. 276. ex rel. Armes, Closson v., 7 App. D. C. 460 ; 24 W. L. R. 71. ex rel. Beal v. Cox, 14 App. D. C. 368 ; 27 W. L. R. 230. Cited in 21 App. D. C. 443 ; 25 lb. 461. ex rel. Bernardin v. Butterworth, 169 U. S. 600; 42 L. Ed. 873; 18 S. Ct. 441. Cited in 186 U. S. 101 ; 196 U. S. 441. ex rel. Bernardin v. Duell, 13 App. D. C. 379. Affirmed in 172 U. S. 576. ex rel. Bernardin v. Duell, 172 U. S. 576; 43 L. Ed. 559; 19 S. Ct. 286. Affirming 13 App. D. C. 379. Cited in 112 Fed. R. 359. ex rel. Bernardin v. Seymour, 10 App. D. C. 294; 25 W. L. R. 515. Reversed in 169 U. S. 600. Cited in 13 App. D. C. 380; 169 U. S. 601. ex rel. Bernardin v. Seymour, 11 App. D. C. 91; 25 W. L. R. 513. ex rel. Bigboy, Hitchcock v., 23 App. D. C. 275; 31 W. L. R. 556. ex rel. Bride v. Macfarland, 18 App. D. C. 120; 29 W. L. R. 242. ex rel. Brightwood Ry. Co. v. O'Neal, 24 W. L. R. 406. ex rel. Brightwood Ry. Co. v. O'Neal, 10 App. D. C. 205; 25 W. L- R. 98. Cited in 11 App. D. C. 356, 413. ex rel. Brodie v. Seymour, 25 W. L. R. 182. ex. rel. Brodie, Seymour v., 10 App. D. C. 567; 25 W. L. R. 183, 253. ex rel. Bronson Co. v. Duell, 28 W. L. R. 788. ex rel. Bronson Co. v. Duell, 17 App. D. C. 471; 29 W. L. R. 126. ex rel. Brown v. Root, 28 W. L. R. 787. ex rel. Brown v. Root, 18 App. D. C. 237 ; 29 W. L. R 477. Cited in 30 App. D. C. 581; 22 Ih. 164; 25 lb. 124; 27 lb. 534. ex rel. Buffalo Pitts Co. v. Duell, 28 W. L. R. 789. tx rel Cardozo v. Baird, 35 W. L,. R. 15. ex rel. Cartford v. Garfield, 36 W. L. R. 87. ex rel. Chicago Business College v. Payne, 30 W. L. R. 410. Table of CasivS. xciii United States ex rel. Chicago College v. Payne, 20 App. D. C. 606 ; 30 W. L. R. 812. Cited in 25 App. D. C. 152. ex rel. Cox v. Hitchcock, 19 App. D. C. 347 ; 30 W. L. R. 201. Cited in 26 App. D. C. 290. ex rel. Daly v. Macfarland, 35 W. L. R. 81 ; 28 App. D. C. 552. ex rel. Darling, Bundy v., 25 App. D. C. 459 ; 33 W. L. R. 434. ex rel. Deffer v. Kimball, 7 App. D. C. 499 ; S4 W. L. R. 82. Cited in 8 App. D. C. 183. ex rel. De Yturbide v. Metropolitan Club, 11 App. D. C. 180; 25 W. L. R. 463. Cited in 26 App. D. C. 468, 469, 472. ex rel. Edwards v. Root, 22 App. D. C. 419; 31 W. L. R. 679. Dis- missed in 195 U. S. 626. Cited in 35 App. D. C. 124. ex rel. Edwards v. Taft, 195 U. S. 626. Dismissing for want of jurisdiction 22 App. D. C. 419. ex rel. Everson v. Young, 26 W. L. R. 546. ex rel. Fidelity & Deposit Co., Church v., 13 App. D. C. 264. ex rel. Frost, Garfield v., 35 W. L. R. 771 ; 30 App. D. C. 165. ex rel. Gannon v. Georgetown College, 28 App. D. C. 87; 34 W. L. R. 500. ex rel. Goldsby, Garfield v., 35 W. L. R. 783 ; 30 App. D. C. 177. ex rel. Goodfellow v. Ross, 23 W. L. R. 263. ex rel. Goodfellow, Ross v., 7 App. D. C. 1 ; 23 W. L. R. 263, 385. ex rel. Grady v. Bundy, 33 W. L. R. 700. Cited in 37 App. D. C. 209. ex r^/. Holmead v. Barnard, 29 App. D. C. 431; 35 W. L. R. 370. ex rel. Holzendorf v. Hay, 30 App. D. C. 576; 30 W. L. R. 835. Writ of error dismissed in 194 U. S. 373. ex rel. Hufty v. Trimble, 14 App. D. C. 414; 27 W. L. R. 202. ex rel. International Contracting Co. v. Lamont, 2 App. D. C. 533 ; 22 W. L. R. 173. Affirmed in 155 U. S. 303. Cited in 13 App. D. C. 46; 5 Ih. 142, 255. ex rel. International Contracting Co. v. Lamont, 155 U. S. 303 ; 39 L. Ed. 160; 15 S. Ct. 97. Affirming 2 App. D. C. 533. Cited in 165 U. S. 311; 67 Fed. R. 209; 186 U. S. 101. ex rel. Kerr v. Ross, 5 App. D. C. 241; 33 W. L. R. 86. Cited in 7 App. D. C. 10; 11 App. D. C. 521; 23 lb. 76; 23 lb. 366; 26 lb. 166. ex rel. Le Cuyler, Griffin v.. 36 W. L. R. 103; 30 App. D. C. 291. ex rel. Long, Lochren v., 6 App. D. C. 486 ; 23 W. L. R. 358. Writ of error dismissed in 164 U. S. 701. Cited in 13 App. D. C. 46 ; 19 lb. 205, 210, 242. ex rel. Lowry, Allen v., 26 App. D. C. 8 ; 33 W. L. R. 354. Af- firmed in 1906 C. D. 765; 135 O. G. 2365. ex reX. Miles Planting & Mfg. Co. v. Carlisle, 5 App. D. C. 138 ; 23 W. L. R. 33. ex rel. Miller, Macfarland v., 18 App. D. C. 554; 39 W. L. R. 753. ex rel. Morris v. Scott, 25 App. D. C. 88. ex rel. Mulvihill v. Clabaugh, 21 App. D. C. 440; 31 W. L. R. 310. Cited in 24 App. D. C. 593 ; 23 lb. 425. ex rel. Mutual District Messenger Co. v. Wight, 15 App. D. C. 463; 28 W. L. R. 57. ex rel. National Phonograph Co. v. Allen, 101 O. G. 1133; 1902 C. ex rel. National Railway Publishing Co. v. Payne, 30 W. L. R. 338.- , .r^ ^ ex rel. National Railway Publishing Co., Payne v., 20 App. U. C. 581; 30 W. L. R. 791. ex rel. Nelson v. Seymour, 35 W. L. R. 135. ex rel New York Condensed Milk Co. v. Duell, 28 W. L. R. 789. ex rel. Opisso v. Young, 31 W. L. R. 276. ^ n ,^ ex rel. Parish v. Cortelyou, 35 W. L- R- 430 ; 30 App. D. C. 45. xciv Table of Cases. United States ex rel. Phelps, Evans v., 19 App. D. C. 302, 207. Dismissed in 189 U. S. 507. ex rel. Phillips v. Hitchcock, 19 App. D. C. 237. Writ of error dis- missed in 189 U. S. 507. ex rel. Phillips v. Hitchcock, 19 App. D. C. 503. ex rel. Phillips v. Ware, 189 U. S. 507. Dismissing writ of error from 19 App. D. C. 202. ex rel. Prospect Hill Cemetery, Ross v., 8 App. D. C. 32; 24 W. L. R. 98. ex rel. Pulaski v. Lyman, 21 W. L. R. 403. ex rel. Railway List Co., Payne v., 20 App. D. C. 605 ; 30 W. L. R. 794. ex rel. Regina Music Box Co. v. Allen, 31 W. L. R. 114. ex rel. Regina Music Box Co., Allen v., 22 App. D. C. 371; 31 W. L. R. 476. ex rel. Reinach v. Cortelyou, 35 W. L. R. 94 ; 28 App. D. C. 570. ex rel. Riley v. Baltimore & Ohio R. R. Co., 27 App. D. C. 105. ex rel. Riverside Oil Co. v. Hitchcock, 190 U. S. 316; 47 L. Ed, 1074; 23 S. Ct. 698. Affirming 31 App. D. C. 252. Cited in 194 U. S. 109. ex rel. Robertson v. Barnard, 24 App. D. C. 8; 32 W. L. R. 458. ex rel. Roche v. Hitchcock, 35 W. L. R. 30 ; 28 App. D. C. 338. ex rel. Rodriguez v. Bowyer, 35 App. D. C. 121 ; 33 W. L. R. 164. ex rel. Romero v. Cortelyou, 26 App. D. C. 298; 34 W. L. R. 97. Writ of error dismissed in 201 U. S. 649. ex rel. Sheehy v. Johnson, 12 App. D. C. 92. ex rel. Smithson v. Ashford, 34 W. L. R. 374; 29 App. D. C. 350; 35 W. L. R. 276. ex rel. South Carolina, Seymour v., 2 App. D. C. 240; 31 W. L. R. 675. Dismissed in 153 U. S. 353. Cited in 13 App. D. C. 48; 17 lb. 473. ex rel. South Carolina v. Seymour, 153 U. S. 353; 38 L. Ed. 742; 14 S. Ct. 871. Dismissing writ of error in 3 App. D. C. 240. Cited in 189 U. S. 508 ; 194 U. S. 375 ; 195 U. S. 636 ; 133 Fed. R. 19; 137 Fed. R. 623. ex rel. Stapleton v. Duell, 38 W. L. R. 835. ex rel. Stapleton v. Duell, 17 App. D. C. 575 ; 39 W. L. R. 156. ex rel. Steinmetz v. Allen, 23 App. D. C. 56; 31 W. L. R. 358. Re- versed in 192 U. S. 543. ex rel. Taylor v. Taft, 24 App. D. C. 95 ; 33 W. L. R. 443. ex rel. Tuttle v. Allen, 35 W. L. R. 50. ex rel. Valentine, Roberts v., 13 App. D. C. 38; 36 W. L. R. 375. ex rel. Vermont Marble Co. v. Burgdorf, 13 App. D. C. 506. Cited in 16 App. D. C. 140 ; 18 lb. 354, 537 ; 20 lb. 378 ; 21 lb. 375. ex rel. Washington v. Johnson, 12 App. D, C. 545; 26 W. L. R. 419. Cited in 15 App. D. C. 467. ex rel. Waters, Carlisle v., 7 App. D. C. 517; 24 W. L. R. 101. ex rel. Wedderburn v. Bliss, 12 App. D. C. 495. Cited in 27 App. D. C. 465. ex rel. West v. Hitchcock, 29 W. L. R. 704. ex rel. West v. Hitchcock, 19 App. D. C. 333 ; 30 W. L. R. 186. Cited in 20 App. D. C. 597. ex rel. West v. Hitchcock, 26 App. D. C. 290 ; 34 W. L. R. 1. ex rel. Williams, Satterlee v., 20 App. D. C. 393 ; 30 W. L. R. 694. to use of Chapman v. City Trust, Safe Deposit & Surety Co., 23 App. United States Building & Loan Assn., Armstrong v., 15 App. D. C. 1; 27 W. L. R. 351. United States Electric Lighting Co., Dewey Hotel Co. v., 17 App. D. C. 356; 29 W. L. R. 71. United States Electric Lighting Co. v. Metropolitan Club, 6 App. D. C- 536; 33 W, L, R. 465, Cited in 11 App. D. C. 85; 18 lb, 458, Tabld of Cases. xcv United States Electric Light Co., Potomac Electric Power Co. v., 26 W. L. R. 19. United States Electric Lighting Co. v. Ross, 9 App. D. C. 558; 24 W. L. R. 775, 838. Cited in 18 App. D. C. 516. United States Electric Lighting Co. v. Sullivan, 22 App. D. C. 115; 31 W. L. R. 406. Cited in 22 App. D. C. 320. United States Fidelity & Guaranty Co., Waring v., 24 App. D. C. 119; 32 W. L. R. 394. United States Life Ins. Co. v. Larner, 18 App. D. C. 147; 29 W. L- R. 275. United States Mutual Accident Assn. v. Hodgkin, 4 App. D. C. 516; 23 W. L. R. 789. Cited in 10 App. D. C. 289. United States Playing Card Co. v. Clark, 132 O. G. 681. United States Trust Co., Niles v., 22 App. D. C. 225; 31 W. L. R. 426. Upham, Wickers v., 29 App. D. C. 30; 129 O. G. 1612. Upper Steamboat Co. v. Blake, 2 App. D. C. 51; 22 W. L. R. 26. Utermehle's Estate, In re, 30 W. L. R. 251. Utermehle v. McGreal, 1 App. D. C. 359; 21 W. L. R. 755. Reversed in 167 U. S. 688. Cited in 15 App. D. C. 34. Utermehle v. Norment, 22 App. D. C. 31; 31 W. L. R. 323. Affirmed in 197 U. S. 40. Vajen, Bader v., 14 App. D. C. 241. Valentine (U. S. ex rel), Roberts v., 13 App. D. C. 38; 26 W. L. R. 375. Van Auken, Richardson v., 5 App. D. C. 209 ; 33 W. L. R. 102. Van Court v. Sons of Temperance National Mutual Relief Society, 22 W. L. R. 505. Van Der Hoogt, Slater v., 23 App. D. C. 417; 32 W. L. R. 232. Van Hook v. Frey, 13 App. D. C. 543 ; 27 W. L. R. 39. Van Riswick, Craighill v., 8 App. D. C. 185; 24 W. L. R. 177. Vansant v. Lindsley, 2 App. D. C. 421; 23 W. L. R. 162. Cited in 15 App. D. C. 124. Van Wyck, Johnson v., 4 App. D. C. 294; 22 W. L. R. 713. Writ of error dismissed in 159 U. S. 256. Verley, In re, 19 App. D. C. 577. Vermont Marble Co. v. Burgdorf, 13 App. D. C. 506; 27 W. L. R. 35. Vermont Marble Co. (U. S. to use of), Burgdorf v., 16 App. D. C. 140. Appeal dismissed in 187 U. S. 654. Vestry of St, John's Parish v. Bostwick, 8 App. D. C. 452; 24 W. L. R. 310. Virginia-Carolina Lumber Co. v. Eisinger, 29 App. D. C. 531; 35 W. L. R. 404. Virginia Fire & Marine Ins. Co. v. Bohnke, 4 App. D. C. 371 ; 32 W. L. R. 750. Cited in 9 App. D. C. 396. Virginia Midland R. Co., Gleeson v., 1 App. D. C. 185; 21 W. L. R. 667. Vogel, Burson v., 29 App. D. C. 388, 404; 131 O. G. 943., Vogeler, Cropley v., 2 App. D. C. 38; 22 W. L. R. 43. Vogelsang v. America, 34 W. L. R. 722. Vogt V. Vogt, 26 App. D. C. 46 ; 33 W. L. R. 390. Voight, Hope v., 25 App. D. C. 23. Volkman, In re, 28 App. D. C. 441. Waddill, to use of Christian v. Cabell, 21 W. L. R. 265. Wagenhurst v. Wineland, 30 App. D. C. 85; 30 W. L. R. 405. Cited in 22 App. D. C. 87, 358. Wagenhurst v. Wineland, 22 App. D. C. 356 ; 31 W. L. R. 521. Wagenhurst v. Wineland, 24 App. D. C. 6. Waggaman, Dawson v., 23 App. D. C. 428; 32 W. L. R. 226. Writ of error dismissed, 199 U. S. 613. Waggaman v. District of Columbia, 16 App. D. C. 207; 38 W. L- R- 571. xcvi Table; of Casbs. Waggaman v. Earle, 25 App. D. C. 583; 33 W. L. R. 420. Reversed in 207 U. S. 244. Waggaman v. George E. Keith Co., 23 App. D. C. 166 ; 32 W. L. R. 87. Waggaman, Kenaday v., 3 App. D. C. 412; 22 W. L. R. 387. Waggaman v. United States. See Holtzman v. United States. Wagner, In re, 22 App. D. C. 267 ; 31 W. L. R. 487. Wagner, Moran v., 28 App. D. C. 317 ; 34 W. L. R. 785. Waite V. Larocque, 25 W. L. R. 702. Waite V. Larocque, 12 App. D. C. 410. Walker, American Security & Trust Co. v. 23 App. D. C. 583; 32 W. L. R. 348. Walker, Baltimore & Potomac R. R. Co. v., 2 App. D. C. 531; 23 W. L. R. 223. Walker v. Evans, 29 W. L. R. 348. . Walker, Held v., 25 App. D. C. 486 ; 33 W. L. R. 440. Walker, Johnson v., 28 W. L. R. 187. Affirmed in 17 App. D. C. 144; 28 W. L. R. 768. Walker v. Johnson, 17 App. D. C. 144; 28 W. L. R. 768. Cited in 25 App. D. C. 249. Walker v. Lyon, 6 App. D. C. 484 ; 23 W. L. R. 392. Cited in 19 App. D. C. 546; 26 lb. 577. Walker, Mutual Fire Ins. Co. v.. 28 W. L. R. 187. Walker v. Washington Title Ins. Co., 19 App. D. C. 575; 30 W. L. R. 355. Cited in 26 App. D. C. 208. Walker Brick Co., Knight v., 23 App. D. C. 519; 32 W. L. R. 327. Wall V. De Mitkiewicz, 9 App. D. C. 109 ; 24 W. L. R- 408. Wall Paper Co. v. Haller & Richards Co., 24 W. L. R. 650. Wallace v. United States, 18 App. D. C. 152; 29 W. L. R. 560. Cited in 18 App. D. C. 369. Wallingford, United States v., 18 App. D. C. 287 ; 29 W. L. R. 403. Walsh V. Macfarland, 34 W. L. R. 78. Walter v. Baltimore & Ohio R. R. Co., 6 App. D. C. 20; 23 W. L. R. 226. Cited in 8 App. D. C. 160 ; 9 lb. 397 ; 12 lb. 163 ; 23 lb. 307. Walter v. Macfarland, 27 App. D. C. 182; 34 W. L. R. 238. Cited in 27 App. D. C. 480. Walter, Petition of, 1 App. D. C. 189 ; 21 W. L. R. 638. Walter v. Slater, 5 App. D. C. 357; 23 W. L. R. 104. Walter v. Walter, 15 App. D, C. 333 ; 27 W. L. R. 785. Walter T. Bradley Coal, L. & C. Co., Clark v., 6 App. D. C. 437; 23 W. L. R. 419. Ward V. District of Columbia, 24 App. D. C. 524 ; 33 W. L. R. 71. Ward, Metzerott, 10 App. D. C. 514 ; 25 W. L. R. 296. Warick v. Crossman, 26 W, L. R. 115. Waring, Brown v., 1 App. D. C. 378 ; 21 W. L. R. 746. Waring v. United States Fidelity & Guaranty Co., 24 App. D. C. 119; 32 W. L. R. 394. Warner v. Baltimore & Ohio R. R. Co., 7 App. D. C. 79; 23 W. L. R. 679. Reversed in 168 U. S. 339. Cited in 11 App. D. C. 398. Warner v. Baltimore & Ohio R. R. Co., 168 U. S. 339; 42 L. Ed. 491; 18 S. Ct. 68. Reversing 7 App. D. C. 79. Cited in 197 U. S. 447; 124 Fed. R. 452; 127 Fed. R. 309. Warner v. Godfrey, 17 App. D. C. 102; 28 W. L. R. 736. Reversed in 186 U. S. 365. Warner v. Grayson, 24 App. D. C. 55; 32 W. L. R. 454. Affirmed in 200 U. S. 357. Warner v. Jackson, 7 App. D. C. 211; 23 W. L. R. 811. Cited in 12 App. D. C. 400. Warner v. Jenks, 12 App. D. C. 104 ; 26 W. L. R. 131 Warner, Patten v., 11 App. D. C. 149; 35 W. L. R. 448. Warner, Sherwood v., 27 App. D. C. 64 ; 34 W. L. R. 110. Warner v. Smith, 13 App. D. C. 111. Cited in 14 App. D. C. 49, 53; 15 Table op Cases. xcvii lb. 162; 16 lb. 139; 17 lb. 322, 343, 470; 18 lb. 147, 176; 19 lb 377; 20 lb. 261 ; 23 lb. 74 ; 24 lb. 80, 270 ; 26 lb. 336. Warner, Young v., 6 App. D. C. 433 ; 23 W. L. R. 373. Warner Valley Stock Co. v. Smith, 9 App. D. C. 187; 24 W. L. R. 392. Reversed in 165 U. S. 28. Cited in 13 App. D. C. 284. Warner Valley Stock Co. i'. Smith, 165 U. S. 28; 41 L. Ed. 621; 17 S Ct. 235. Reversing 9 App. D. C. 187 ; 24 W. L. R. 392. Cited in 186 U. S. 101; 194 U. S. 592; 196 U. S. 441. Warthen v. Hammond, 5 App. D. C. 167; 23 W. L. R. 50. Cited in 6 App. D. C. 320; 9 lb. 31; 11 lb. 398. Washington, Alex. & Mt. Vernon Ry. Co. v. Chapman, 26 App. D. C 472; 34 W. L. R. 30. Washington, Alex. & Mt. Vernon Ry. Co., Macfarland v., 18 App. D. C 456; 29 W. L. R. 547. Washington Asphalt Block & Tile Co. v. Mackey, 15 App. D. C. 410 28 W. L. R. 35. Cited in 22 App. D. C. 114; 25 lb. 284, 401. Washington Beneficial Endowment Assn., Gilbert v., 10 App. D. C 316; 25 W. L. R. 149. Dismissed in 173 U. S. 701. Washington Beneficial Endowment Assn., Gilbert v., 15 App. D. C. 40 27 W. L. R. 340; 21 App. D. C. 344; 31 W. L. R. 190. Washington Beneficial Endowment Assn., Gilbert v., 21 App. D. C. 344 31 W. L. R. 190. Washington Beneficial Endowment Assn., Stewart v., 21 App. D. C. 344 ; 31 W. L. R. 190. Washington Brewery Co., Babbington v., 13 App. D. C. 527. Washington Brick Co. Z'. Belt, 13 App. D. C. 202. Washington Brewery Co. v. Cosgrove, 34 W. L. R. 132. Washington Brewery Co. v. Cosgrove, 34 W. L. R. 68, Washington Critic Co., Weightman v., 4 App. D. C. 136; 22 W. L. R. 665, 835. Washington Electric Vehicle Transportation Co. v. District of Columbia, 19 App. D. C. 462. Cited in 24 App. D. C. 571 ; 26 lb. 112. Washington Gas Light Co. v. Eckloff, 4 App. D. C. 174; 22 W. L. R. 655. Cited in 7 App. D. C. 374. Washington Gas Light Co. v. Eckloff, 7 App. D. C. 373; 23 W. L. R. 846. Cited in 10 App. D. C. 45. Washington Gas Light Co. v. Lansden, 9 App. D. C. 508; 24 W. L. R. 807. Reversed in 172 U. S. 534. Cited in 25 App. D. C. 269; 26 lb. 263. Washington Gas Light Co. -c. Lansden, 172 U. S. 534; 43 L. Ed. 543; 19 S. Ct. 296. Reversing 9 App. D. C. 508. Cited in 184 U. S. 188; 112 Fed. R. 117, 118, 940; 116 Fed. R. 806; ]33 Fed. R. 808; 133 Fed. R. 724. Washington Gas Light Co. v. Poore, 3 App. D. C, 127; 22 W. L. R. 349.V Cited in 14 App. D. C. 294; 24 lb. 539. Washington, Georgetown R. R. Co., Adams v., 9 App. D. C. 36; 24 W. L. R. 364. Washington & Georgetown R. R. Co. v. Adams, 11 App. D. C. 396; 25 W. L. R. 744. Washington & Georgetown R. R. Co. v. American Car Co., 5 App. D. C. 524; 23 W. L. R. 241, 246. Cited in 9 App. D. C. 476; 18 lb. 514; 26 lb. 204. Washington & Georgetown R. R. Co., Brown i:, 11 App. D. C. 37; 25 W. L. R. 404. Washington & Georgetown R. R. Co. v. Dashiell, 7 App. D. C. 507; 34 W. L. R. 40. Cited in 9 App. D. C. 438; 24 lb. 391. Washington & Georgetown R. R. Co., Ferguson v., 6 App. D. C. 525; 23 W. L. R. 407. Washington & Georgetown R. R. Co. v. Grant, 11 App. D. C. 107; 25 W. L. R. 342. Cited in 26 App. D. C. 475. Washington & Georgetown R. R. Co. v. Hickey, 5 App. D. C. 436; 23 xcviii Table of Cases. W. L. R. 177. Affirmed in 166 U. S. 521. Cited in 12 App. D. C 14; 15 lb. 375; 33 lb. 509; 24 lb. 531. Washington & Georgetown R. R. Co. v. Hickey, 12 App. D. C. 269; 26 W. L. R. 198. Cited in 14 App. D. C. 548. Washington & Georgetown R. R. Co., Hurdle v., 8 App. D. C. 120; 24 W. L. R. 132. Washington v Georgetown R. R. Co. v. McLane, 11 App. D. C. 220; 25 W. L. R. 485. Cited in 12 App. D. C. 54; 33 lb. 579; 25 lb. 66. Washington & Georgetown R. R. Co., Morris v., 6 App. D. C. 513; 23 W. L. R. 484. Washington & Georgetown R. R. Co., National Cable Co. v., 8 App. D. C. 478; 24 W. L. R. 796. Washington & Georgetown R. R. Co. v. Patterson, 9 App. D. C. 423; 25 W. L. R. 36. Cited in 25 App. D. C. 482. Washington & Georgetown R. R. Co., Rapp v., 26 W. L. R. 210. Washington & Georgetown R. R. Co., Reiners v., 9 App. D. C. 19; 24 W. L. R. 333. Washington & Georgetown R. R. Co., Rouser v., 13 App. D. C. 320; 26 W. L. R. 759, Washington & Georgetown R. R. Co., Ryan v., 8 App. D. C. 542; 24 W. L. R. 333. Washington & Georgetown R. R. Co. v. Wright, 7 App. D. C. 295; 23 W. L. R. 844. Washington & Great Palls Electric Ry. Co., Stewart v., 22 App. D. C. 496; 31 W. L. R. 748. Washington Loan & Trust Co. v. Darling, 21 App. D. C. 132; 31 W. L. R. 129. Washington Loan & Trust Co. z'. Susquehanna Coal Co., 26 App. D. C. 149; 33 W. L. R. 738. Washington Market Co. v. Clagett, 19 App. D. C. 12; 29 W. L. R. 807. Cited in 24 App, b. C. 90. Washington Market Co., Dashiell v., 10 App. D. C. 81; 35 W. L. R. 123. Washington Market Co. v. District of Columbia, 6 App. D. C. 34; 23 W. L. R. 213. Affirmed in 172 U. S. 361. Cited in 8 App. D. C. 373. Washington National Building & Loan Assn. v. Fiske, 20 App. D. C. 514; 30 W. L. R. 761. Petition for certiorari denied in 188 U. S. 740. Washington Post Co. v. Wells, 27 App. D, C. 495 ; 34 W. L. R. 418. Washington, Potomac & Chesapeake R. R. Co., Chesapeake Beach Rj'. Co. v., 23 App. D. C. 587; 32 W. L. R. 309. Affirmed in 199 U. S. 247. Washington Railway & Electric Co., Brill i:, 36 W. L. R. 55 ; 30 App. D. C. 255. Washington Railway & Electric Co., Kehan v., 28 App. D. C. 108; 34 W. L. R. 451. Washington Savings Bank, Russell v., 23 App. D. C. 398; 32 W. L. R- 378. Washington Times Co. z' Downey, 26 App. D. C. 258; 33 W. L. R. 770. Washington Times Co. v. Wilder, 12 App. D. C. 62 ; 26 W. L. R. 136. Washington Title Ins. Co., Walker v., 19 App. D. C. 575; 30 W. L. R- 355. Washington (U. S. c.r rcl.) v. Johnson, 12 App. D. C. 545; 26 W. L. R. 419. Waters z'. Anthony, 20 App. D. C. 124 ; 30 W. L. R. 375. Waters, Carlisle z'., 7 App. D. C. 517; 24 W. L. R. 101. Waters, z'. Ritchie, 3 App. D. C. 379; 22 W. L. R. 361. Watrous, Lipscomb z\, 3 App. D. C. 1 ; 22 W. L. R. 189. Watson V. Carver, 27 App. D. C. 555 ; 34 W. L. R. 483. Watson V. Thomas, 23 App. D. C. 65. Cited in 37 App. D. C. 83. Weaver v. Baltimore & Ohio R. R. Co., 3 App. D. C. 436; 23 W. L. R- Table op Casus. xcix 393. Cited in 14 App. D. C. 290 ; 18 lb. 496 ; 30 lb. 53.", ; 23 lb 121 ; 25 lb. 284; 26 lb. 506. Weaver, Bopgher r., 12 App. D. C. 477; 26 W. L. R. 297. Weaver, District of Columbia v., 6 App. D. C. 483; 23 W. L. R. 363. Weaver, Keroes v.. 27 App. D. C. 384; :54 W. L. R. 479. Webb V. Janney, 9 App. D. C. 41 ; 24 W. L. R. 454. Webb, Jennings v., 8 App. D. C. 43 ; 24 W. L. R. 84. Webb V. King, 21 App. D. C. 141; 31 W. L. R. 79. Cited in 25 App. D. C. 184, Webb V. King, 25 App. D. C. 182 ; 33 W. L. R. 147. Reversed in 204 U. S. 43. Webb, Olmstead v., 5 App. D. C. 38 ; 22 W. L. R. 801 ; 23 W. L. R. 169. Weber, Flather v.. 21 App. D. C. 179. Weber, In re. 26 App. D. C. 29, Webster, Baltimore & Potomac R. R, Co, v., 6 App, D, C. 182; 23 W. L. R. 322. Wedderburn ( U. S, ex rcl.) z: Blis.s, 12 App. D. C. 485; 26 W. L. R. 293. Weigand v. District of Columbia, 22 App, D. C, 559 ; 31 W. L. R. 730. Weightman v. Washington Critic Co., 4 App. D. C. 136; 22 W. L. R. 665; 835. Cited in 15 App. D. C. 569 ; 25 lb. 300. Weiss, In re. 21 App. D. C. 214. Welch I.'. Lynch, 35 W. L. R. 398; 30 App. D. C. 122. Welch, McGee v., 18 App. D. C. 177; 29 W. L. R. 475. Welch, Guthrie v., 24 App. D. C. 562; 33 W. L. R. 162. Welch, In re. 28 App. D. C. 362; 1906 C. D. 758; 125 O. G. 2767. Welden v. Stickney, 1 App. D. C. 343; 21 W. L. R. 7.31. Cited in 20 App. D. C. 252. Wells, Anderson v.. 27 App, D. C. 115. Wells V. Reynolds, 4 App. D. C. 43; 32 W, L. R. 733. Cited in 10 App. D. C. 153. Wells V. Reynolds, 5 App. D. C. 20; 33 W. L. R. 781. Wells, Washington Post Co. v.. 37 App. D. C. 495; 34 W. L. R. 418. Wells V. Wells, 11 App. D. C. 392; 26 W. L. R. 71. Cited in 18 App. D. C. 151, 153; 19 lb. 313. Wende, Horine v.. 39 App. D. C. 415; 129 O. G. 3858. Wertz V. Wertz, 20 App. D. C. 98; 30 W. L. R. 614. Wescott, Shelley 7'., 23 App. D. C. 135 ; 32 W. L. R. 68. West V. Hitchcock, 19 App. D. C. 333; 30 W. L. R. 186. Cited in 20 App. D. C. 597. West V. Hitchcock, 26 App. D. C. 290; 34 W. L. R. 1. Affirmed in 205 U. S. 80. West v. Metropolitan Life Ins. Co., 34 W. L. R. 640. West V. Rothwell, 18 App. D. C. 516; 19 App. D. C. 178; 29 W. L. R. 687, 842. West, United States v.. 8 App. D. C. 59; 24 W. L. R. 133. West V. United States, 20 App. D. C. 347 ; 30 W. L. R. 582. Cited in 24 App. D. C. 385. West (U. S. ex rel.) Hitchcock, 29 W. L. R. 704. West (U. S. ex rel.) v. Hitchcock, 19 App. D. C. 333; 30 W. L. R. 186. West End National Bank, Starkweather v., 21 App. D. C. 381 ; 31 W. L. R. 98. Western Union Telegraph Co., Ferrero v., 9 App. D. C. 455; 24 W. L. R. 790. Western Union Telegraph Co. v. Lipscomb, 22 App. D. C. 104; 31 W. L. R. 422. Cited in 32 App. D. C. 130. Westinghouse v. Duncan, 3 App. D. C. 131; 22 W. L. R. 83. Cited in 13 App. D. C. 236 ; 20 lb. 301 ; 26 lb. 8, 26, 69. Weston District of Columbia v., 23 App. D. C. 363 ; 32 W. L. R. 384. Weston' V. District of Columbia, 33 App. D. C. 367 ; 32 W. L. R. 383. c Tabli5 of Cases. Weston, In re, 17 App. D. C. 43:. Weston, Thomson v., 19 App. D. C. 373. Wetmore, Karrick v., 22 App. D. C. 487 ; 31 W. L. R. 714. Wetmore, Karrick v., 25 App. D. C. 41.5 ; 33 W. L. R. 435. Affirmed in 205 U. S. 141. Wetmore v. Karrick, 26 App. D. C. 124; 34 W. L. R. 567. Whalen, Cherrv v., 23 App. D. C, 5.37; 33 W. L. R. 485. Wheat, Morris, v. 1 App. D. C. 237 ; 21 W. L. R. 654. Wheat, Morris v., 8 App. D. C. 379; 24 W. L. R. 264. Wheat, Morris v., 11 App. D. C. 201; 25 W. L. R. 494. Wheatley, Bean v., 13 App. D. C. 473; 26 W. L. R. 805. Wheatley, Cumberland Hydraulic Cement & Mfg. Co., 9 App. D. C. 334; 24 W. L. R. 743. Wheeler v. McBlair, 5 App. D. C. 375; 23 W. L. R. 153. Affirmed in 172 U. S. 643. Cited in 17 App. D. C. 218; 19 lb. 11. Wheeler v. Ryon, 1 App. D. C. 142; 21 W. L. R. 621. Whelan z'. McCullough, 4 App. D. C. 58; 22 W. L. R. 636. Whelpley v. Ross, 25 App. D. C. 207; 33 W. L. R. 371. Whipple V. Geddis, 25 App. D. C. 333 ; 33 W. L. R. 309. Whipps, District of Columbia v., 17 App. D. C. 415 ; 29 W. L. R. 58. Whitaker v. Middle States L. B. & C. Co , 7 App. D. C. 203; 23 W. L. R. 797. Cited in 11 App. D. C. 336 ; 13 lb. 470 ; 15 lb. 408. White, Anderson v., 2 App. D. C. 408 ; 22 W. L. R. 159. White V. Glover, 23 App. D. C. 389; 32 W. L. R. 241. Affirmed in 199 U. S. 602. White V. Postal Telegraph & Cable Co., 25 App. D. C. 364; 33 W. L. R. 295. White V. Tobriner, 29 W. L. R. 479. White, Tobriner v., i9 App. D. C. 163 ; 29 W. L. R. 838. Whitehead, Hunt v., 19 App. D. C. 116 ; 30 W. L. R. 323. Whitelv, tunk v., 25 App. D. C. 313. Whiting V. Davidge, 23 App. D. C. 156 ; 32 W. L. R. 114. Whitley, United States v., 18 App. D. C. 287; 29 W. L. R. 403. Whitney v. Hay, 15 App. D. C. 164; 27 W. L. R. 430. Affirmed in 181 U. S. 77. Cited in 20 App. D. C. 328; 25 lb. 542, 544. Whitney v. Howard, 21 App. D. C. 318. Whitnejr, Mosher v. See Colbert v. Speer. Whitney, Speer v. See Colbert v. Speer. Whitson V. Columbia Phonograph Co., 18 App. D. C. 565; 29 W. L. R. 804. Whittemore v. Darden, 9 Apo. D. C. 449 ; 25 W. L. R. 4. Whyte V. Spransy, 19 App. D. C. 450; 30 W. L. R. 182. Wiard v. Semken, 2 App. D. C. 424; 22 W. t. R. 172. Wickers v. Albert, 29 App. D. C. 23; 129 O. G. 1268. Wickers ;-. McKee, 29 App. D. C. 4, 21, 25, 28; 129 O. G. 869, 1269. Wickers v. Upham, 39 App. D. C. 30; 129 O. G. 1612. Wickers and Furlong, In re, 29 App. D. C. 71 ; 129 O. G. 2074. Wielar r. Garner, 4 App. D. C. 329; 22 W. L. R. 729. Cited in 11 .-Vpp. D. C. 174. Wight, Davidson v.. 16 App. D. C. 371; 2S W. L. R. 302. Reversed in 181 U. S. 371; 45 L. Ed. 900: 21 S. Ct. 616. Wight V. Davidson, 181 U. S. 371; 45 L. Rd. 900; 21 S. Ct. 616. Re- versing 16 App. D. C. 371. Cited in 181 V. S. 369, 404; 187 U. S. 544; 188 U. S. 518; 194 U. S. 567; 113 Fed. R. 584; 113 Fed. R. 1017. Wight, Mutual District Messenger Co. v., 15 App. D. C. 463; 28 W. L. R. 57. Wight, United States ex re]. Mutual District Messenger Co. v., 15 App. D. C. 463; 28 W. L. R. 57. Wilcox, District of Columbia v., 4 App. D. C. 90; 22 W. L. R. 623. Wilder, Blackford v., 21 App. D. C. 1; 28 App. D. C. 535; 127 0. G. 1255. Tablb o]? Cases. ci Wilder, Washington Times Co. v., 12 App. D. C. 62 ; 26 W. L. R. 136. Wiley, Fitzgerald v., 22 App. D. C. 329 ; 31 W. L. R. 491. Wiley, Govan v., 15 App. D. C. 233 ; 27 W. L. R. 516. Wilkes V. Wilkes, 18 App. D. C. 90; 29 W. L. R. 261. Cited in 20 App. D. C. 555, 557; 23 lb. 443; 26 Ih. 52. Wilkin, Cleveland v., 27 App. D. C. 311. Wilkins V. McGuire, 2 App. D. C. 448; 22 W. L. R. 155. Wilkins & Co. v. Hillman, 8 App. D. C. 469; 24 W. L. R. 300. Cited in 10 App. D. C. 373; 25 lb. 87. Wilkinson v. District of Columbia, 22 App. D. C. 289 ; 31 W. L. R. 507. Wilkinson, Owens v., 20 App. D. C. 51; 30 W. L. R. 436. Willard, Boyd v., 34 W. L. R. 99. Willard v. Crook, 21 App. D. C. 237; 31 W. L. R. 177. Willard v. Wood, 1 App. D. C. 44; 21 W. L. R. 579. Affirmed in 164 U. S. 502. Willard v. Wood, 164 U. S. 502 ; 41 L. Ed. 531 ; 17 S. Ct. 176. Affirming 1 App. D. C. 44. Cited in 191 U. S. 115; 168 U. S. 697; 114 Fed. R. 576; 120 Fed. R. 473, 474, 926; 127 Fed. R. 629. Willard Hotel Co. v. District of Columbia, 23 App. D. C. 272; 32 W. L. R. 163. Cited in 24 App. D. C. 462; 25 lb. 181; 26 lb. 560; 27 lb. 104. William Conners Paint Mfg. Co,, In re, 27 App. D. C. 389; 1906 C. D. 696; 123 O. G. 999. Williams v. Bradley, 2 App. D. C. 346; 22 W. L. R. 146. Williams v. Cronemeyer, 130 O. Gk 300. Williams, Dangerfield v., 26 App. D. C. 508; 34 W. L. R. 50. Williams v. District of Columbia, 22 App. D. C. 471 ; 31 W. L. R. 683. Williams v. Getz, 17 App. D. C. 388; 29 W. L. R. 54. Williams, In re, 30 App. D. C. 117 ; 130 O. G., 1692. Williams, Liberman v., 23 App. D. C. 223. Williams v. Ogle, 14 App. D. C. 145. Williams v. Paine, 7 App. D. C. 116; S3 W. L. R. 626. Affirmed in 169 U. S. 55. Cited in 19 App. D. C. 544, 546. Williams, Somerville v., 12 App. D. C. 520; 26 W. L. R. 280. Williams, United States v., 26 W, L. R. 195. Williams v. United States, 3 App. D. C. 335 ; 22 W. L. R. 457. Williams (U. S. ex rel), Satterlee v., 20 App. D. C. 393; 30 W. L. R. 694. Williams V. Williams, 24 App. D. C. 214 ; 32 W. L. R. 710. Williams v. Williams, 25 App. D. C. 32; 33 W. L. R. 132. Willige, Slater v., 16 App. D. C. 364; 28 W. L. R. 454. Willis, Eastern Trust & Banking Co. v., 6 App. D. C. 375 ; 23 W. L. R. 417. Reversed in 169 U. S. 295. Willis V. Eastern Trust & Banking Co., 167 U. S. 76; 42 L. Ed. 83; 17 S. Ct. 739. Dismissing writ of error in 6 App. D. C. 375. Cited in 191 U. S. 559; 115 Fed. R. 389. Willoughby V. Mackall, 1 App. D. C. 411; 21 W. L. R. 748. Willoughby v. Mackall, 1 App. D. C. 417; 21 W. L. R. 748. Willoughby v. Mackall, 5 App. D. C.' 162 ; 23 W. L. R. 54. Willoughby, Mackall v., 6 App. D. C. 125; 23 W. L. R. 261. Affirmed in 167 U. S. 681. Willoughby, Mackall v., 8 App. D. C. 143; 24 W. L. R. 145. Affirmed in 167 U. S. 681. Willoughby, Mankey v., 21 App. D. C. 314 ; 31 W. L. R. 226. Wills, Atchison v., 21 App. D. C. 548; 31 W. L. R. 311. Wills V. Jones, 13 App. D. C. 482. Cited in 17 App. D. C. 375. Wilson V. District of Columbia, 26 App. D, C. 110; 33 W. L. R. .502. Wilson V. Hartford Fire Ins. Co., 28 W, L. R. 7. Reversed in 17 App. D. C. 14; 28 W. L. R. 582. Wilson V. Hartford Fire Ins. Co., 17 App. D. C. 14: 28 W. L. R. 582. Reversed in 187 U. S. 467. Cited in 187 U. S. 473. - Wilson V. Lambert, 168 U. S. 611. Reversing 8 App. D. C. 185. cii Table of Cases. Wilson, Portsmouth Savings Bank i:. 5 App. D. C. 8 ; 22 W. L. R. 817. Wilson V. Riggs, 27 App. D. C. .5.50; 34 W. L. R. 469. Wilson V. Shaw, 25 App. D. C. 510; 33 W. L. R. 328. Wimsatt, Lansburgh v.. 7 App. D. C. 271; 23 W. L. R. 815. Wineland, Wagenhurst v.. 20 App. D. C. 85; 30 W. L. R. 405; 22 App. D. C. 356; 31 W. L. R. 521. Wineland, Wagenhurst v., 24 App. D. C. 6. Winslow z'. Austin, 14 App. D. C. 137. Cited in 19 App. D. C. 389; 21 lb. 212; 26 lb. 312, 402. Winslow, Baltimore & Ohio R. R. Co. v., 18 App. D. C. 438; 29 W. L. R. 542. Reversed in 188 U. S. 646. Winslow V. Baltimore & Ohio R. R. Co., 28 App. D. C. 126 ; 34 W. L. R. 510. Affirmed in 208 U. S. 59. Winston v. United States, 13 App. D. C. 157. Winston v. United States, 172 U. S. 303; 43 L. Ed. 456; 19 S. Ct. 212. Reversing 26 W. L. R. 469. Cited in 192 U. S. 21. Winter, Mansfield v.. 10 App. D. C. 549; 25 W. L. R. 270. Wirt r. Stubblefield, 17 App. D. C. 283; 29 W. L. R. 44. Wise. Hardy Z'., 5 App. D. C. 108; 23 W. L. R. 22. Woarms r. Hammond, 5 App. D. C. 338 ; 23 W. L. R. 131. Cited in 13 App. D. C. 469. Wolf, Auerbach r., 22 App. D. C. 538; 31 W. L. R. 716. Wolf z: District of Columbia, 21 App. D. C. 464 ; 31 W. L. R. 257. Af- firmed in 196 U. S. l.")2; 33 W. L. R. 137. Cited in 25 App. D. C. 235 Wolf, Ruppert v.. 4 App. D. C. 556; 22 W. L. R. 823. Wolf, Ruppert z:. 27 W. L. R. 724. Wood, Bechman i'., 15 App. D. C. 484. Wood V. Gravson, 16 App. D. C. 174; 28 W. L. R. 275. Cited in 22 App. D. C. 434. Wood V. Grayson, 22 App. D. C. 432; 31 W. L. R. 663. Appeal dis- missed in 200 U. S. 257. Cited in 24 App. D. C. 56. Wood, Willard v., 1 App. D. C. 44; 21 W. L. R. 579. Affirmed in 164 U. S. 502. Woodbury, Cake Z'.. 3 App. D. C. 60; 22 W. L. R. 236. Affirmed in 164 U. S. 311. Woods z'. Gary, 25 W. L. R. 591. Woods V. Poor, 29 App. D. C. 397, 404; 1,30 O. G. 1313. Woods V. Richmond & Danville R. R. Co., 1 App. D. C. 165; 21 W. L. R. 635. Cited in 20 App. D. C. 526. Woodward Z'. NelHgan, 19 App. D. C. 550. Woodward, Newton v., 16 App. D. C. 568. Woodward, Newton v.. 17 App. D. C. 34. Woodward v. Ragland. 5 App. D. C. 220; 23 W. L. R. 81. Woolard v. Woolard, 18 App. D. C. 326 ; 29 W. L. R. 499. Wormley, District of Columbia v., 15 App. D. C. 58; 27 W. L. R. 382. Affirmed in 181 U. S. 402. Wormley v. District of Columbia, 181 U. S. 402 ; 45 L. Ed. 921 ; 21 S. Ct. 609. Affirming 15 App. D. C. .■)«. Cited in 188 U. S. 518. Worthington, Heiberger v., 23 App. D. C. 565; 32 W. L. R. 361. Worthington, Nelson Z'.. 3 App. D. C. 503; 22 W. L. R. 416. Worthington, Hutchinson z'.. 7 App. D. C. 548; 24 W. L. R. 97. Wright, Cleaveland z'., 79 O. G. 866; 1897 C. D. 413. Wright, Donaldson, 7 App. D. C. 45; 23 W. L. R. 642. Wright, Holcomb z:. 5 App. D. C. 76; 23 W. L. R. 24. Appeal dismissed in 63 U. S. 689. Cited in 25 App. D. C. 496. Wright, Johnson v., 2 App. D. C. 216; 22 W. L. R. 124. Wright V. Johnson-Wynne Co., 35 W. L. R. 2 ; 28 App. D. C. 375. Wright, Washington & Georgetown R. R. Co. z'., 7 App. D. C. 295; 23 W. L. R. 844. W. T. Walker Brick Co., Knight v.. 23 App. D. C. 519; 32 W. L. R. 327. Tablb 01? Cases. ciii Wurts V. Harrington, 10 App. D. C. 149; 35 W. L. R. 266. Cited in 14 App. D. C. 41, 52, 153; 15 Ih. 30; 17 /&. 343; 21 /&. 87. Wyllie V. Palmer, 27 App. D. C. 66. Wyman v. Donnelly, 21 App. D. C. 81. Cited in 24 App. D. C. 485; 26 Ih. 363. Wynkoop, New York Continental Jewell Filtration Co. v., 29 App. D. C. 594; 85 W. L. R. 418. Dismissed in 207 U. S. 583. Wynne, Columbian Correspondence College v., 25 App. D. C. 149; 33 W. L. R. 230. Wynne, Fitzgerald v., 1 App. D. C. 107; 21 W. L. R. 611. Yates V. Huson, 8 App. D. C. 93; 24 W. L. R. 214. Cited in 9 App. D. C. 214; 11 App. D. C. 599; 13 Ih. 95, 564; 15 Ih. 142, 163; 17 Ih. 333; 23 Ih. 194; 34 Ih. 370, 484. Yeager v. United States, 16 App. D. C. 356; 28 W. L. R. 554. Cited in 24 App. D. C. 391; 27 Ih. 139, 450. Young V. Kelly, 3 App. D. C. 296 ; 33 W. L. R. 313. Young, Miel v., 39 App. D. C. 481 ; 138 O. G. 2532. Young V. Norris Peters Co., 27 App. D. C. 140 ; 34 W. L. R. 340. Cited in 37 App. D. C. 154. Young, United States ex rel. Everson v., 36 W. L. R. 546. Young, United States c.v rcl. Opisso Y de Ycaza v., 31 W. L. R. 376. Young V. Warner, 6 App. D. C. 433 ; 23 W. L. R. 373. Cited in 18 App. D. C. 372. Young Women's Christian Home v. French, 187 U. S. 401. Reversing Paul V. French, 18 App. D. C. 9. Young Women's Christian Home, Hulick v., 28 W. L. R. 391. Zeust, Staffan v., 10 App. D. C. 260 ; 25 W. L. R. 188. Zeust V. Staffan, 13 App. D. C. 388 ; 36 W. L. R. 695. Zeust z'. Staffan, 14 App. D. C. 300 ; 37 W. L. R. 510. Zeust V. Staffan, 16 App. D. C. 141 ; 38 W. L. R. 371. INDEX -DIGEST OF DISTRICT OF COLUMBIA CASES ABANDONMENT. As to forfeiture by mother of right to custody of infant child. See Beall V. Bibb, 19 App. D, C. 311 ; 30 W. L. R. 139. The failure of the record owner of property to make claim thereto and pay taxes thereon is evidence of the abandonment of right in or claim to the property. Holtzman v. Douglas, 168 U. S. 278 ; 26 W. L. R. 74. The presumption is against a voluntary abandonment of land after possession under a grant for a valuable consideration. Chesapeake Beach Ry. Co. V. Washington P. & C. R. R. Co., 23 App. D. C. 587; 32 W. L. R. 309. As to abandonment of graveyard. See Dangerfield v. Williams, 26 App. D. C. 508; 34 W. L. R. 50. As ground for divorce. See Hitchcock v. Hitchcock, 15 App. D. C. 81; 27 W. L. R. 446; McDonough v. McDonough, 20 App. D. C. 46; 30 W. L. R. 636. As to what constitutes abandonment of prosecution under § 939 of Code. See United States v. Hayman, 24 App. D. C. 158 ; 32 W. h. R. 491 ; United States V. Hartman, 24 App. D. C. 156 ; 32 W. L. R. 490. The provisions of § 939 of Code relative to abandonment of prosecu- tion apply to proceeding pending when the Code went into effect. United States V. Cadarr, 24 App. D. C. 143 ; 32 W. L. R. 486. The discharge of an accused on abandonment of prosecution under § 939 of Code is final and relieves him from further accountability for the offense. lb. See Divorce. Patents. ABATEMENT AND REVIVAL. An action of ejectment instituted by a married woman is abated by her death, and a new action by the husband claiming as tenant by the courtesy, is necessary. Welch v. Lynch, 35 W. L. R. 398. By the death of a Commissioner of Patents, a suit to compel him to issue a patent abates and cannot be revived so as to bring in his suc- cessor; the act of Maryland of 1785, ch. 80, having no application to such a case. Bernardin v. Butterworth, 169 U. S. 600. As to effect of pendency of prior suit to abate a second one between the same parties and for the same cause of action. See National Express Co. V. Burdette, 7 App. D. C. 551 ; 24 W. L. R. 88. See Actions. Patents. ABATEMENT QF LEGACY. See Legacies. I 2 Abortion and Miscarriage — AccompIvICES. ABORTION AND MISCARRIAGE. Under § 809 of the Code, the woman upon whom the act producing a miscarriage is committed is not, in a legal sense, an accomplice, notwith- standing it was done with her knowledge and consent, nor is such woman a principal within the meaning of § 908 of the Code. Thompson v. United States, 36 W. L. R. 98. Evidence of the attending physician, who had examined a woman short- ly after an unlawful operation had been performed on her, as to her condition at the time of such examination, is admissible on the trial o£ the party charged with performiiag such operation. lb. In a prosecution against two persons jointly indicted for an assault upon a third person with intent to cause a miscarriage, thereby causing the death of such person, where the evidence, while tending to show that the actual operation was performed by one of the defendants, also furnished the basis for an inference that the other defendant had instigated it, designated the person to perform the operation, and furnished the money for its performance, held that the question of his guilt was properly submitted to the jury. Maxey v. United States, 35 W. L. R. 446. In such a case, even assuming that the person upon whom the operation was performed, even though consenting to it, was herself guilty of no offense in law, the rule applies that one may be convicted as a principal though acting in the commission of the offense through an innocent agent; and the party procuring or instigating the same to be done is liable there- for criminally. lb. ABSENCE raising presumption of death. See Hamilton v. Rathbone, 9 App. D. C. 48; 24 W. L. R. 390; Howard v. Bvans, 24 App. D. C. 127; 32 W. L. R. 406. See Teusts and Trustees. ABSCONDING DEBTOR. See Attachment. ABUTTING PROPERTY. Property abuts on a sidewalk notwithstanding a twenty-foot parking intervenes. Allman v. District of Columbia, 3 App. D. C. 8; 22 W. L. R- 301. ACCEPTANCE AND DEDICATION. See Streets and Sidewalks. ACCESSORIES. See Accomplices. ACCIDENT INSURANCE. See Insurance. ACCIDENTAL HOMICIDE. See Homicide. ACCOMPLICES. A woman upon whom the aet of producing a miscarriage is committed is not an accomplice of the one committing it, although done with her knowledge and consent; nor is such woman a principal. Construing §§ 809 and 908 of the Code. Thompson v. United States, 36 W. L. R. 98. Liability to indictment for the same offense is a reasonable test of the Accord and Satisfaction — Accounts and Accounting. 3 relations between the accused persons in determining whether or not they are accomplices. Y eager v. United States, 16 App. D. C. 356; 28 W. L. R. 554. The prosecuting witness in a prosecution for carnal knowledge is not an accomplice. lb. ACCORD AND SATISFACTION. As to proof of under general issue in action of tort. See Metropolitan R. R. Co. V. Snashall, 3 App. D. C. 420; 22 W. L. R. 377. ACCOUNTS AND ACCOUNTING. I. Generally. II. Duty as to. III. Partnership. IV. Right to compel. V. Jurisdiction to compel. VI. Reference to Auditor. VII. Statement of. I. Generally. As to falsification of accounts constituting offense under § 5421, Rev. Stat. See Howgate v. United States, 7 App. D. C. 217; 24 W. L. R. 53 8. As to necessity of an accounting between an iflsolvent building asso- ciation and a borrowing member. See Armstrong v. United States B. & L. Asso., 15 App. D. C. 1 ; 27 W. L. R. 351. Where one interested in attorney fees for collection of government claims can expect nothing until the amount adjudged has been appro- priated, laches will not be charged against him if he bring the suit for an accounting within a reasonable period after the passage of the appro- priation act. In this case two years was not unreasonable. Barle v. Myers, 207 U. S. 244. II. Duty as to. Where one of the two trustees, in whom the title to the real estate purchased by a syndicate, has been vested, dies, there should be an ac- counting by the survivor. Starkweather v. Dyer, 35 W. L. R. 369. Duty of fiduciaries as to. See Richardson v. Van Auken, 5 App. D. C. 209; 23 W. L. R. 102. Oi receivers. See Cake v. Woodbury, 3 App D. C. 60 ; 22 W. L. R. 236. As to accounting by a vice-consul-general with the United States. See United States v. Day, 27 App. D. C. 458 ; 34 W. L. R. 355. III. Partnership. As to fraud for which a court of equity will have an account between partners opened and taken de novo after a lapse of sixteen years. See Murphy v. Kirby, 3 App. D. C. 207 ; 22 W. L. R. 306. IV. Right to Compel. The personal representative of a husband has no right to compel the widow to account for rents and profits derived from real estate which the husband had conveyed or caused to be conveyed to her by deeds absolute in terms. McCartney v. Fletcher, 10 App. D. C. 572; 25 W. L. R. 311. 4 Accounts and Accounting. As to right of an inventor to an accounting for royalties under con- tract for manufacture and sale of invention. See Eclipse Bicycle Co. v. Farrow, 16 App. D. C. 468; 28 W. L. R. 551. As to right of mortgagor and secured creditors in this District to an accounting by the trustee for the proceeds of a sale under the deed of trust made of property in another jurisdiction, See Eastern Trust & Banking Co. v. American Ice Co., 14 App. D. C. 304; 27 W. L. R. 182. As to right of principal to require an account of agent. See Wheeler v. Ryan. 1 App. D. C. 142; 21 W. L. R. 621. As to effect of expiration of a patent pending suit for an accounting for infringement. See Busch v. Jones, 16 App. D. C. 23 ; 28 W. L. R. 535. V. Jurisdiction to Compel. The Orphans' Court has no power to compel an accounting by the trus- tee named in a will ; that is for a court of equity. McLanc v. Cropper, 5 App. D. C. 276; 23 W. L. R. 115. As to power of Orphans' Court to order accounting by executor pend- ing an appeal from judgment establishing will. See lb. A court of law has concurrent jurisdiction with a court of equity of a suit for an accounting; and where a plea of the statute of limitations would be a bar to the demand at law it would be held equally to bar in equity. Patten v. Warner, 11 App. D. C. 149; 25 W. L. R. 448. Where the evidence in a suit by creditors of a husband shows him to have an interest in property jointly with his wife to whom it has been conveyed, but does not disclose the extent of the interest, a court of equity will require an account to be taken in order to determine that in- terest. See Turner v. Gottwals, 15 App. D. C. 43; 27 W. L. R. 372. As to jurisdiction of court of equity to require accounting by trustee's executors at suit of cestui que trust. See Darlington v. Turner, 24 App. D. C. 573 ; 33 W. L. R. 114. 5. C. 202 U. S. 195. VI. Reference to Auditor. An action by a surety on the bond of a building contractor, who had been compelled to complete the buildings on default of the contractor, to recover from his co-surety under an agreement to hold plaintiff harmless, the amount of his loss, was properly referred to the auditor under C. L. rule 46 to state an account between plaintiff and the contractor; and the propriety of such reference was not affected by the fact that there were issues in the case entirely independent of the accounting. Simmons v. Morrison, 13 App. D. C. 161 ; 26 W. L. R. 434. Where a decree in a suit for an accounting affirming the auditor's re- port fails to in terms adjudge the recovery of the amount found due, the appellate court may in affirming the decree modify it by adding a clause that complainant recover the amount. Eclipse Bicycle Co. v. Borrow, 23 App. D, C. 411 ; 32 W. L. R. 265. As to case justifying a reference to the auditor of the court to state an account. See Simmons v. Morrison, 13 App. D. C. 161 ; 26 W. L. R. 434. United States v. Groome, 13 App. D. C. 460 ; 26 W. L. R. 803. Accounts and Accounting. 5 VII. Statement of. In a proceeding for an accounting as to the fees received by defendant in respect of French spoliation claims, wider an agreement by which de- fendant contracted to pay complainant 25 per cent, of the fees received by him, after deducting expenses, etc., held that the allowance of cer- tain amounts for which credit was claimed by defendant as having been paid for "professional services," held improper for the reason that the services were of the kind known as lobbying services. Waggaman v. Bade, 25 App. D. C. 583; 33 W. L. R. 420. In a suit for an accounting by an inventor who had assigned his in- vention to a company which agreed to manufacture the device with due diligence and pay him royalties on those manufactured, a decree was passed declaring him entitled to royalties not only upon the devices man- ufactured under his contract, but upon those of a substituted device man- ufactured by the company, and referring the cause to the auditor to state the account. In the hearing before the auditor it was developed that sub- sequent to the decree defendant had ceased to manufacture both of the devices embraced in the reference to the auditor, and was manufacturing another device styled "Exhibit E 10." Held, that defendant company must account to complainant for the manufacture of "Exhibit E 10" as well as for the other devices. Eclipse Bicycle Co. v. Farrow, 23 App. D. C. 411; 33 W. L. R. 365. An item of credit claimed by a guardian, or by any other person acting in a similar fiduciary capacity, and certainly a wholesale list of items, as in this case, should not be excluded from consideration upon an account- ing for the sole reason that they are not accompanied by vouchers. Cor- coran V. Renehan, 32 W. L. R. 806. In a suit for an accounting between partners, one partner in order that a final decree might be passed conceded a credit of $7,500 to the other instead of a much smaller sum allowed by the auditor. — Held, under the circumstances, that the party receiving the credit was not entitled to in- terest from the dissolution of the partnership. Baker v. Cummings, 8 App. D. C. 515; 24 W. L. R. 360. Where a sale by one partner to his copartner of the former's interest in certain of the partnership business is annulled for fraud practiced by the purchaser and an accounting ordered, the purchasing partner will be required to account to his copartner for the full share of the latter in the profits of the business the subject of the sale, and will not be allowed extra compensation for services rendered by him in respect of such busi- ness subsequent to the sale so annulled. lb. Where, by reason of the non-payment of a note, the holder, a bank, was compelled, to borrow a large sum to meet its pressing necessities, held, that upon an accounting in a suit by the maker of the note against the bank, the former was chargeable with a proportionate share of the expense incurred by the bank in making the loan. Ohio Nat. Bank v. Construction Co., 17 App. D. C. 524. Where a note or security is given for a definite amount growing out of transactions between parties having mutual dealings with each other. 6 Account Stated. it will be presumed to be in full settlement of any balance due by the maker. Marmion v. McClellan, 11 App. D. C. 467 ; 25 W. L. R. 790. Where land is purchased by copartners for a specific business and one of the partners clears and grubs the land, thereby enhancing its value, which work, however, is no part of the partnership business, such partner is entitled to credit for his labor in a partnership accounting. Stone v. Fowlkes, 29 App. D. C. 379. A stipulation in a building association mortgage providing for a monthly sum called premium, in addition to the legal rate of interest, during the continuance of the mortgage is usurious, and in an accounting between a borrowing member and an association, sums so paid should be credited on account of the principal debt. Building Assn. v. Baker, 19 App. D. C. 1; 29 W. L. R. 783; Building Assn. v. Fiske, 20 App. D. C. 514; 30 W. L. R. 761. As to scope of accounting by a real estate broker, defendant in a suit to cancel conveyances obtained by him from one to whom he sustain- ed fiduciary relations. See Holtzman v. Linton, 27 App. D. C. 242; 34 W. L. R. 302. As to whether Treasury Department can restate accounts of disbursing officers after their accounts are once stated and settled. See United States V. Howgate, 3 App. D. C. 277; 22 W. L. R. 345. Where an administrator of an attorney performs services and incurs expenses in completing the business in which his intestate and another at- torney were interested he should be allowed therefor and those services and expenses as well as those rendered and incurred by the intestate can be settled in one suit where the account has been treated by both parties as one account. Earle v. Myers, 207 U. S. 244. In an accounting for attorneys' fees for collection of claims against the Government this court followed the general rule of affirming a finding of fact made and confirmed by both the courts below unless the same is clearly erroneous and held that certain services were of the character generally designated as lobbying services and could not be allowed. lb. Where several appeals are taken from a decree ratifying in its entirety a report of the auditor, which report is erroneous in that it gives priority in the distribution of a fund to some claimants who are not entitled there- to, a reversal goes to the entire decree and necessitates the statement of a new account. Alfred Richards Brick Co. v. Rothwell. 19 App. D. C. 178; 29 W. L. R. 842. See also Administration; Equity,- Mechanics' Liens; Partnership; Practice and Procedure; Trusts and Trustees. ACCOUNT STATED. Where, after mutual dealings between parties, the accounts between them are settled and a balance struck in favor of one of them which the other accepts and promises to pay, the account so stated becomes a new cause of action and is prima facie correct, and can be impeached only for fraud, error or mistake. Gordon v. Praser, 13 App. D. C. 382; 26 W. L. R. 713. ACKNOWI D. C. 38; 23 W. L. R. 169. An order appointing a receiver will not be set aside unless its im- propriety is made clearly to appear. Clark v. Bradley Coal Co., 6 App. D. Appeai, and Error. 59 C. 437; 23 W. L. R. 419; Wood v. Grayson, 16 App. D. C. 174; 28 W. L. R. 275. An appellate court will defer largely to the judgment of the court ap- pointing receiver as to compensation to be allowed him. Cake v. Wood- bury, 3 App. D. C. 60; 22 W. L. R. 236, IX. Bill of Exceptions. The right of appeal is not dependent upon the appearance in the record of a regular bill of exceptions ; and a motion to dismiss an appeal for that reason denied^ Raymond v. United States, 26 App. D. C. 250 ; 34 W. L. R. 562. The purpose of a bill of exceptions is to make that a matter of record which otherwise would not appear in the record ; but when the questions raised already sufficiently appear from the pleadings and proceedings of record, no bill of exceptions is necessary. Evans v. Humphreys, 9 App. D. C. 392 ; 24 W. L. R. 782. Parties cannot, by affidavits or agreements, cause that to become a bill of exceptions which is not such in a legal sense. Metropolitan R. R. Co. V. Dis. of Col, 195 U. S. 322. An appeal should not ordinarily be entertained when the record con- tains no bill of exceptions signed by the justice below, but merely a stipu- lation by counsel as to the facts. Friszel v. Murphy, 19 App. D. C. 440 ; 30 W. L. R. 203. Where an agreed statement of facts is duly signed by the respective parties, submitted to the court and made a part of its record, a formal bill of exceptions is not necessary to enable this court to consider it on ap- peal from the judgment of the trial court thereon. American Sec. & Trust Co. V. Walker, 23 App. D. C. 583 ; 32 W. L. R. 348. A decision of the court below, upon a trial by the court upon an issue of nul tiel record in proceedings by scire facias to revive a judgment, cannot be reviewed by the appellate court unless a bill of exceptions has been duly taken setting forth the record offered in evidence and the rulings of the court thereon. Lyon v. Ford, 7 App. D. C. 314 ; 23 W. L. R. 838. For this court to review the adjudication by the trial justice on a mo- tion to quash a writ of attachment, the testimony for and against which is taken orally at chambers before him, it is necessary that requests for rulings upon the testimony be presented to him at the conclusion of such testimony, exception then and there taken to his rulings, and such ex- ception duly formulated into a bill of exceptions purporting to have been taken at the trial. Wilkins & Co. v. Hillman, 8 App. D. C. 469; 24 W. L. R. 300. Where, however, as in this case, there was no controversy as to the testimony adduced and the ruling of the trial justice thereon, and that testimony having been reduced to writing and the proceedings had before and by him being certified to by the trial justice, such statement by him treated as the equivalent of a bill of exceptions, though not to be deemed a precedent for future cases. lb. As to necessity for bill of exceptions on appeal from rulings in sci. fa. 6o Appeal and Error. proceedings. See Otterback v. Patch, 5 App, D. C. 69; 23 W. L. R. 833. Affidavits in attachment become a part of the record on appeal, without a bill of exceptions or agreed statement. Barbour v. Paige Hotel Co., 2 App. D. C. 174; 22 W. L. R. 33. An objection to a question as "immaterial, incompetent and inadmis- sible," will not be considered on appeal, when the record shows no more specific ground of objection, nor whether the question was answered. Hazleton v. LeDuc, 10 App. D. C. 379 ; 25 W. L. R. 280. A general exception to a charge of the court, which does not direct -attention to the particular part objected to, raises no question for review by an appellate court. Thomas v. Presbrey, 5 App, D. C. 217; 23 W. L. R. 123. An exception to an entire paragraph of a charge to the jury, which contains several separable propositions of law, some of which are correct, will not be considered on appeal. Hughes v. Heyman, 4 App. D. C. 444; 22 W. L. R. 737. Exceptions to certain paragraphs of the charge of the court indicated by letters in the margin, thereafter printing the same in capital letters, will not be considered by this court. Hubbard v. Perlie, 25 App. D. C. 477; 33 W. L. R. 482. Exceptions to portions of a charge, marked off by brackets, will not be considered when the specific grounds of objection are not stated, and no distinct question of law is presented. Fulton v. Fletcher, 12 App. D. C. 1. In order to warrant an appellate court in determining whether there was error in giving or refusing an instruction to return a verdict the bill of exceptions must show that all the evidence has been set forth. Rockwell V. Capital Traction Co., 25 App. D. C. 98; 33 W. L. R. 338. A bill of exceptions cannot be taken as a complete statement of all the evidence where it is apparent from the charge of the court that cer- tain letters were offered in evidence as tending to show an acknowledg- ment of guilt of defendant, and such letters are not recited or mentioned in the bill. Fields v. United States, 27 App. D. C. 433 ; 34 W. L. R. 382. A general exception to an auditor's report, to the effect merely that the finding, instead of being in favor of one party should have been in favor of the other, affords no ground for review of the report. Smith v. Amer- ican B. & T. Co., 12 App. D. C. 192 ; 26 W. L. R. 199. The bill of exceptions must be settled by the court below before whom the cause was tried, and be brought into this court in a completed form; and this court must accept what is certified therein as being the actual truth. Keely v. Moore, 22 App. D, C. 1 ; 31 W. L. R. 290. This court will decline to consider bills of exception which do not con- form substantially to the provisions of rule 5, where the same shall have been settled after the notice given in D. C. v. Fraser, 31 W. L. R. 83. Brown v. Commercial Fire Ins. Co., 21 App. D. C. 325; 31 W. L. R- 206. Even while an appeal is pending the trial court has power to settle the bill of exceptions. In such case the appeal must be regarded as subject Appeal and Error. 6i to the contingency of the award of a new trial in the event of a failure of settlement. Evans v. Humphreys, 9 App. D. C. 393 ; 24 W. L. R. 782. Where it appears from the plain recitals of the record certified from the police court that the bill of exceptions was presented to the trial court, signed by him and filed two days after the expiration of the time pre- scribed by § 2, of rule 25, of this court, the writ of error will be dis- missed. Tally V. Dis. of Col., 20 App. D. C. 489 ; 30 W. L. R. 774. X. Record. It is the duty of an appellant in all cases to produce and file in the ap- pellate court a sufficient transcript of the proceedings below, to enable the court to decide all questions that may be properly presented on the appeal, as well those by the appellee as those by the appellant himself. Normeiit v. Edwards, 6 App. D. C. 107; 23 W. L. R. 209. Where a record on appeal omits all the proof upon which the court below acted, and includes only the bill, answer and decree, the appeal will be dismissed. Godfrey v. Roessle, 5 App. D. C. 299; 23 W. L. R. 139. An ex parte abstract of the testimony, made by counsel on one side after the hearing and determination of the cause, and after appeal, can not, over the objection of opposing counsel, be regarded as a proper substi- tute for the testimony of the record, notwithstanding the fact that before being filed in the court below a copy of such abstract was submitted to opposing counsel and no objection nor designation of other parts of the record testimony to be included, was then made, and such abstract can not be considered on the hearing of the appeal. Werts v. Werts, 20 App. D. C. 98; 30 W. L. R. 614. Where an order allowing alimony pendente lite was passed after the testimony was taken in a suit for maintenance and before final decree, the order will not be disturbed on appeal where the testimony on which it was based is not made part of the record. Lesh v. Lesh, 21 App. D. C. 475; 31 W. L. R. 288. Where a decree appealed from is based upon the testimony in the caflse. the appellant will not be allowed, without regard to the wishes of the appellee, to omit from the record all the testimony taken in the cause. Davis V. Harper, 14 App. D. C. 298 ; 27 W. L. R. 156. A certificate appended by the clerk of the court below to what purports to be the transcript of record to the effect that the foregoing pages are true copies of originals in the cause as the same remain upon the files and records of the court, is insufficient ; and in such case a motion to dismiss the appeal for want of a record will be proper. lb. Where, on appeal from a decree dismissing a bill of review upon demurrer thereto, the transcript of record contained only the bill of re- view, the demurrer thereto, and the decree thereon, and did not contain the original bill, answers, or the decree sought to be reviewed, or any of the proceedings in the original cause. Held, that there was no suf- ficient transcript of record to enable the court to pass upon the questions sought to be raised by the appellant. Adriaans v. Reilly, 27 App. D. C. 167 ; 34 W. L. R. 354. A record, although not expressly purporting to give all the testimony in the case, held sufficient where, after detailing the testimony of witnesses 62 Appeai, and Error. on both sides, it stated that "counsel for both plaintiff and defendant an- nounced that they had no further testimony to offer, and rested their case," and it was not contended that any substantial testimony was omitted. Klopfer v. Dis. of Col, 25 App. D. C. 41 ; 33 W. L. R. 153. In order than an appellate tribunal may pass intelligently upon the ruling of a trial court, the record must give, and purport to give, the substance of all the testimony bearing upon such ruling. lb. An order vacating a marshal's sale, on motion supported and opposed by affidavits of the parties, is not reviewable in the absence of a bill of exceptions or anything in the record to show that the affidavits were used on the hearing, or whether there was any testimony introduced. Hart V. H'mes, 10 App. D. C. 366; 25 W. L. R. 217. An appeal will lie where the record sets out the pleadings, judgment and appeal, but no bill of exceptions or motion in arrest of judgment, if the declaration states a case not within the jurisdiction of the lower court, or which wholly fails to show any such legal cause of action upon which the judgment could be properly rendered. Mansfield v. Winter, 10 App. D. C. 549. The record should contain, and purport to contain the substance of all the testimony given in the case, when it is desired to have the ruling of the appellate court on the whole case. McCaully v. United States, 25 App. D. C. 404; 33 W. L. R. 306. If the record on an appeal from an order revoking letters of adminis- tration, as improvidently granted, fails to show upon what evidence the death and intestacy of the alleged decedent were proved, such order will not be disturbed. Estate of Coit, 3 App. D. C. 246; 22 W. L. R. 319. A voluminous schedule attached to a report of the auditor, containing a large number of small items, held properly omitted from the record, where there were no exceptions based on such individual items. Gilbert V. Endowment Assn., 31 App. D. C. 344; 31 W. L. R. 190. Counsel canot by agreement make a record on appeal and import into a case facts and circumstances which do not belong to it, and which have no proper place in it. Falk v. United States, 15 App. D. C. 446; 27 W. L. R. 815. On appeal from an order dismissing a petition for a writ of mandamus to the Secretary of the Interior, where the return of the Secretary to the rule to show cause why the writ should not issue is not included in the transcript of record, a statement in the brief of counsel for appellant that such return was a demurrer can not be assumed to be true in the absence of any admission to that effect by the appellee. Cox v. Hitch- cock, 19 App. D. C. 347 ; 30 W. L. R. 201. As to sufficiency of record. See Sincell v. Davis, 24 App, D. C. 218 ; 32 W. L. R. 746. The failure to file a transcript of record within the time prescribed, will, in the absence of a legal or sufficient excuse, entitle appellee to a dismissal of the appeal. McGrane v. McCann, 2 App. D. C. 221; 22 W. L. R. 101. Where a bond on appeal to this court was approved and filed May 4, 1906, and the transcript of record was not fil?d in this court until Au^. Appeal and Error. 63 27, 1906, and no order was made by the court below extending the time for the filing of such transcript, the appeal dismissed for failure to file the transcript of record within the forty days from the time of perfecting the appeal. Gros v. Norment, 34 W. L. R. 657. The application for and obtaining of order for extension of the time for proxlucing and filing transcript of record on appeal should be made within the period of forty days ; and an application made and order ob- tained after the expiration of the forty days is too late. Dis. of Col. v. Roth, 18 App. D. C. 547; 29 W. L. R. 702. As to jurisdiction of lower court to extend the time for filing the transcript of record. See Macfarland v. Byrnes, 19 App. D. C. 531; 30 W. L. R. 237. Where the record certified from the police court plainly shows that the bill of exceptions was not filed in time affidavits will not be received by the appellate court to contradict or explain the recitals of such record and to show that the bill of exceptions was in fact presented to the trial judge within the time prescribed by said rule. An incorrect recital or statement of a material fact can only be corrected in the court from which the record comes, through application seasonably made. Talty v. Dis. of Col., 20 App. D. C. 489. That the answer to a bill in equity refers to a bill and the exhibits thereto previously filed by the defendant against the complainant, and prays that they may be taken as parts of the answer, will not suffice to incorporate the papers in question into the record so as to entitle them to consideration by this court. Siggers v. Snow, 15 App. D. C. 407 ; 38 W. L. R. 79. When a transcript of the record of a case is incomplete owing to the loss of original papers in the court below, leave will not be granted for the filing of copies of such papers. Hardesty v. Hosmer, 4 App. D. C. 280; 22 W. L. R. 706. When a transcript of the record is incomplete, owing to the loss of original papers in the court below, appellant may move to remand the transcript in order that proceedings may be taken to supply such lost papers under the provisions of §§ 899, 900, 903, R. S. D. C. ; but to sup- port such motion it must be shown that due diligence has been exercised to discover such papers or to supply their loss. lb. As to dismissal of appeal for failure to file intelligible transcript of record. See Hunter v. Insurance Co., 13 App. D. C. 373. On appeal from a decree entered in conformity with the decision of the appellate court on a former appeal, printing of record dispensed with. Mclntire v. Mclntire, 20 App. D. C. 134. Where there are several appeals taken to the appellate court from the same decree, it is the duty of the appellant in the principal appeal to have the transcript of record printed, without calling upon the other appellants to share the cost thereof, leaving the appellate court to apportion the costs on the determination of the cause as may be proper. Zeust v. Staffan, 13 App. D. C. 388; 26 W. L. R. 695. It is the duty of the appellant to designate to the clerk of the court below such portions of the record as he deems proper fully and fairly to present the issues between the parties and to constitute the record on 64 Appeai, and Error. appeal, and of the appellee, on notification thereof, if he deems the desig- nated portions insufficient, to forthwith indicate the further portions he thinks proper to be included ; and the clerk should thereupon certify the parts so designated by the parties to be the record in the cause. Davis V. Harper, 14 App. D. C. 298; 27 W. L. R. 156. If the appellee be satisfied with the parts designated by the appellant, or if he fails within a reasonable time to designate further portions, the clerk will certify the record designated by the appellant as the record on the appeal. Ih. Where a mortgagor appeals from a decree confirming a sale made in foreclosure proceedings, but does not give a supersedeas bond, and pend- ing the appeal the purchaser complies with the terms of sale, obtains pos- session of the property by means of a writ of assistance and expends a large amount in improvements. Held, that such facts could not affect the determination of the appeal or furnish ground for granting a rehearing at the instance of the purchaser, as they formed no part of the record on appeal. Hunt v. Whitehead, 19 App. D. C. 116; 30 W. L. R. 223. A special appeal will not be dismissed for the failure of appellants to observe the requirements of the rule of this court relating to transcripts on regular appeals, where no essential part of the record has been omitted, and such failure has not operated to the prejudice of the appellees. Mc- Gowen V. Ehoy, 28 App. D. C. 86 ; 34 W. L. R.' 455. Rule 15 of the Court of Appeals, relative to production and filing of transcript of record applies whether or not the appeal is to operate as a supersedeas. Queen v. Alvey, 29 W. L. R. 380. Appellant, with consent of appellee, permitted to submit an appeal from a final decree in equity upon the printed record of a former appeal from an interlocutory decree in the same cause. Chamberlain v. Browning, 14 App. D. C. 389. XI. Parties. All the defendants having joint or dependent interests in the subject matter of a decree must join in an appeal therefrom, or be summoned in or requested to join in the appeal, and upon refusal a severance should be entered to enable the appellant to prosecute his appeal alone. Slater V. Hamaeher, 15 App. D. C. 294; 27 W. L. R. 671. Where necessary parties are omitted in taking an appeal, this court may, in its discretion, allow the appellant to amend and correct his ap- peal by citing in the omitted parties by citation from this court. lb. Where pending an appeal on a petition for mandamus against a public officer, the officer retires, the appeal will not be dismissed; but the judg- ment of the court below will be reversed and the cause remanded with directions to dismiss the suit for want of proper parties. The result is the same whether the judgment appealed from is in favor of or against the officer. Seymour v. Nelson, 11 App. D. C. 58; 25 W. L. R. 543. Where, pending an appeal from a decree in favor of a receiver for his own compensation and for an indebtedness for which he had assumed a personal liability — the receivership having terminated by sale of the prop- erty and installation of the purchaser — the receiver dies, the decree in his favor will pass to his personal representatives and may be enforced Appeal and Error. 65 by them; and an order making them parties to the appeal in his stead is proper. Cake t. Mohun, 164 U. S. 311; 25 W. L. R. 9. An appeal from an order discharging a prisoner from custody on habeas corpus should be by the warden of the jail and not by the United States. Leonard v. Rodda, 5 App. D. C. 256; 23 W. L. R. 229. An error of the clerk of the lower court in the citation of appeal from an order discharging a prisoner on habeas corpus, in reciting that the ap- peal is by the United States instead of by the warden of the jail, is no ground for dismissing the appeal. lb. As to change of parties in appellate court where one of the Commis- sioners of the District, petitioners for injunction, retires pending suit. See McBride v. Ross, 13 App. D. C. 576 ; 27 W. L. R. 402. XII. Costs. Where a record on appeal was unnecessarily extended by appellants, held, that the cost of printing be equally shared by the parties, even though the judgment was reversed. Barbour v. Moore, 4 App. D. C. 535 ; 22 W. L. R. 792. Where an appellant has voluntarily incurred costs in the printing of a more voluminous record than was required by the rules of the court in general term, from which the case was transferred to the Court of Ap- peals, the latter court will not require one of two defendants to pay one- third of the cost of printing such record, especially where it is impossible to segregate such portions of the record as appertain to the controversy with the defendant sought to be charged and those apper- taining to the controversy with the other defendant. Palmer v. Fleming, 5 App. D. C. 365 ; 23 W. L. R. 122. In cases transferred to the Court of Appeals from the court in general term, the question of costs should be governed to some extent by the rules in force with regard to appeals in the latter court. lb. Where there is a duly certified transcript, and application is made for a certiorari to bring up matter alleged to have been omitted, the cost of the additional transcript should be borne in the first instance by the applicant for the writ, subject to the final determination of the appellate court in the premises. Davis v. Harper, 14 App. D. C. 298 ; 27 W. L. R. 156. Where the original record is sufficiently full, the costs of certiorari, including transcript fees and charge for printing, will be taxed against appellee, even though the decree appealed from be reversed. McLane v. Cropper, 5 App. D. C. 276; 23 W. L. R. 115. Where the bill of exceptions consisted of a literal copy of the sten- ographic report of the trial, with the insertion, verbatim, of instruments read in evidence, each party taxed with costs incurred by him notwith- standing reversal of the judgment appealed from. Brown v. Commercial Fire Ins. Co., 21 App. D. C. 325 ; 31 W. L. R. 206. As to payment of costs where the decree appealed from is affirmed in part and modified in part. See Clerks' Investment Co. v. Sydnor, 19 App. D. C. 89 ; 30 W. L. R. 6. Counsel fees, when allowed, are part of the costs, and costs in them- selves are not a subject of appeal by those to whom they are refused, al- though they can be noticed incidentally when the correctness of the prin- 66 Appeai, and Error. cipal decree is before the appellate court. Bohrer v. Otterhack, 2 App. D. C. 78; 23 W. L. R. 54, Where in a proceeding by one party to recover of another a fund to which both made claim by assignment a decree for complainant was reversed on appeal to this court, and thereafter the court below entered a decree in accordance with the mandate of this court and requiring the complainant to pay all costs, including a refund of $123 paid out of the fund to the auditor for costs and fees prior to the former appeal, it was held, that the matter of costs was in the discretion of the court below, from the exercise of which no appeal lies. United States Life Ins. Co. v. Lames, 18 App. D. C. 147; 29 W. L. R. 275. An award of costs by a court of equity will not be disturbed on appeal save in plain case of abuse. Smith v. Olcott, 19 App. D. C. 61 ; 29 W. L. R. 766. No appeal hes to this court with respect to alleged errors in the taxa- tion of costs. The remedy for the correction of an error in their taxa- tion is by an application for a rule to show cause why the clerk should not review the taxation first made by him, care being taken to specify with particularity in what respect it is erroneous. Williams v. Getz, 17 App. D. C. 388; 29 W. L. R. 54. Neither the act of Congress of July 7, 1898, nor § 177 of the D. C. Code, exempts the District of Columbia, or its Commissioners, from liability for costs incurred by an individual in an appeal against them which has been successful. Brown v. Macfarland, 22 App. D. C. 412; 31 W. L. R. 541. Where a decree in proceedings instituted by the Commissioners of the District for the opening of a street and the assessment of damages and benefits arising therefrom is, on appeal by parties whose lands were as- sessed for benefits, reversed, the appellants are entitled to recover the costs incurred by them in prosecuting the appeal. In such case costs should be allowed the District and not the Commissioners individually. Ih. The Court of Appeals has no power or jurisdiction to award costs or to execute any judgment therefor that might be entered in cases of appeals from the Commissioner of Patents. Wells v. Reynolds, 5 App. D. C. 20. Where pending a special appeal the original and final decree in the cause was reversed, which decree of reversal showed that appellee had no just ground for proceeding under the decree reversed, the special ap- peal made necessary by such unwarranted proceedings dismissed with costs to appellants. Wagenhurst v. Wineland, 24 App. D. C. 6. As to allowance of costs of appeal against the estate of a decedent in an action against the administrator on a contract of his intestate. See Tuohy V. Trail, 19 App. D. C. 79 ; 30 W. L. R. 3. As to application of reservation in par. 3 of rule 18 of the Court of Appeals, relative to allowance of costs. See Brown v. Macfarland, 22 App. D. C. 412; 31 W. L. R. 541. Costs on. See Leonard v. Abner-Drury Brewing Co., 25 App. D. C. 161; 33 W. L. R. 211. Trial court may require petitioner for divorce to advance wife funds necessary for the prosecution of an appeal. Morgan v. Morgan, 25 App. D. C. 389; 33 W. L. R. 409. Rule 18, § 1, relative to allowance of costs on dismissal of an appeal. Appeal and Error. 67 except where the dismissal is for want of jurisdiction, has no application to cases where the trial court had no jurisdiction. Columbia Sand Dredg- ing Co. V. Morton, 28 App. D. C. 388; 34 W. L. R. 766. On the reversal of a decree on the sole ground of want of jurisdiction in the lower court, where the question was raised by the appellate court of its own motion, each party was required to pay his own costs on the appeal. lb. XIII. Process. A writ of habeas corpus cannot be made to serve the office of an ap- peal or writ of error. Bx parte Dries, 3 App. D. C. 165 ; 22 W. L. R. 301 ; Harris v. Nixon, 27 App. D. C. 94 ; 34 W. L. R. 179 ; In re Praser, 28 W. L. R. 39. The writ of certiorari can not be used as a substitute for a writ of error or appeal. Anderson v. Morton, 21 App. D. C. 444; 31 W. L. R. 274; Fidelity & Deposit Co. v. Beck, 13 App. D. C. 337 ; 36 W. L. R. 104. The writ of mandamus can not be used to serve the purposes of an appeal or writ of error. Tuttle v. Allen, 35 W. L. R. 50. The writ of prohibition cannot be made to serve the purpose of a writ of error or certiorari to correct mistakes of an inferior court in deciding questions within its general jurisdiction. Holmcad v. Barnard, 29 App. D. C. 431; 35 W. L. R. 370; Defter v. Kimball, 7 App. D. C. 499; 24 W. L. R. 82. A right of appeal lost by del,ay cannot be revived through the instru- mentality of a remedial prerogative writ. Ex parte Dries, 3 App. D. C. 165; 32 W. L. R. 301. Service of citation on appeal on one of the attorneys of record for the appellees, who also appeared specially for them on a motion to dismiss the appeal, held sufficient notice of the appeal. McGowan v. Elroy, 28 App. D. C. 86; 34 W. L. R. 455. Where sufficient notice has been otherwise given, no citation is neces- sary; and held that notice was sufi&ient where an appeal was taken in open court at the time an order discharging a prisoner on habeas corpus was made, and the petitioner was re-arrested and required to enter into a recognizance to answer to the appeal, and appeared in the appellate court by counsel at the beginning of the term. Leonard v. Rodda, 5 App. D. C. 356; 23 W. L. R. 229. The failure of the appellant to have a citation issued and served upon the appellee is waived by the latter where, upon notice given under the rules of the appellant's designation of the parts of the record to be in- cluded in the transcript, he expressly consents thereto, and the transcript is thereupon prepared and filed with the clerk of this court. DowUng v. Buckley, 36 App. D. C. 266; 33 W. L. R. 774. Service of citation upon the opposing parties within the time prescribed by the rules, is necessary to an appeal, unless there has been a waiver of citation, or unless the appeal has been taken in open court at the term at which the decree appealed from was rendered. Chester v. Morgan, 11 App. D. C. 435; 25 W. L. R. 767. An appeal will not be dismissed on the ground that the citation on ap- peal was not served and returned within twenty days of its issuance as 68 Appeal and Error. required by Rule 10, § 9, of this court, where, for all that appears in the record, there may have been some good reason why it was not executed and returned, and it is clear that the appellee has suffered no injury. Rauh V. Hurt, 24 App. D. C. 211 ; 32 W. L. R. 101. Where a citation is duly issued, but by mistake or oversight in the mar- shal's office is not served, the omission or mistake will not defeat the right of appeal. Where an appellee appears and in addition to moving the dis- missal of the appeal for non-service of citation, resists the appeal on other and distinct grounds, citation is waived. Spalding v. Crawford, 3 App. D. C. 361; 22 W. L. R. 371. As to effect of entry of notice of appeal on issuance of writ of execu- tion. Byrne v. Morrison, 25 App. D. C. 72; 33 W. L. R. 215. XIV. Rehearing. An application for rehearing, and for an order for the production of the original papers in the case to be used on such rehearing, will not ordi- narily be entertained. Otterhack v. Patch, 5 App. D. C. 69; 23 W. L. R. 186. An objection for want of necessary parties, taken on a motion for a rehearing after a final hearing on appeal, is only available when it is clearly shown that a necessary and indispensable party is wanting. Weightman v. Critic Co., 4 App. D. C. 136; 22 W. L. R. 665. A motion for rehearing, made after a former motion for the same purpose had been denied, and the case aj)pealed to the Supreme Court of the United States, in which court the appeal was dismissed for want of jurisdiction, dismissed as not having been made in time, under the rules, and that the matter was settled by the decision on the first mo- tion. Durham v. Seymour, 10 App. D. C. 274; 25 W. L. R. 9. XV. Presumptions. On appeal in a case involving payments and credits, where the record is silent, it will be presumed that the jury was permitted to make allow- ances of interest. Clements v. Mutersbaugh, 27 App. D. C. 165 ; 34 W. L. R. 373. Where charges of fraud are made in a bill which are positively denied in the answers and appellant deliberately fails to include the testimony in the transcript of record, the appellate court will assume the charges to be without foundation. Datis v. Harper, 14 App. D. C. 463; 27 W. L. R. 494. A jury will be presumed to have been present where the bill of excep- tions contains no recital in respect thereof. Fields v. United States, 27 App. D. C. 433; 34 W. L. R. 382. Where a bill of exceptions does not purport to contain all the evi- dence it will be presumed that there was evidence to which a charge ex- cepted to correctly applied. Clements v. Mutersbaugh, 27 App. D. C. 165; 34 W. L. R. 373. On motion in arrest of judgment all presumptions are in favor of the verdict; and on appeal it will be presumed that all available objections were made and urged in the lower court. Schwartz v. Reesch, 2 App. D. C. 440; 22 W. L. R. 210. Appbai, and Error. 69 On appeal from a judgment denying a petition for a writ of mandamus, founded on the facts as alleged in the petition and the return thereto, the substantial allegations of the return which traverse allegations of the petition must be assumed to be true. Mutual Dist. Messenger Co. v. Wight, 15 App. D. C. 463; 28 W. L. R. 57. In the absence of a bill of exceptions on an appeal from a judgment of the court below entered in accordance with the mandate of the appellate court, it will be assumed that the proceedings had in the trial court were regular and a motion to affirm will be granted. Raymond v. United States, 26 App. D. C. 250; 34 W. L. R. 563. XVI. Special. Appeals from interlocutory orders will be allowed only in cases of pressing emergency and when serious injustice might result from delay, and this must be made to appear affiirmatively by the party desiring the appeal. U. S. Electric Lighting Co. v.- Ross, 9 App. D. C. 558 ; 24 W. L. R. 838. An appeal from an interlocutory order will only be granted where a strong case, showing the necessity for an immediate appeal, is presented; and held, that an appeal from an order in a suit to enjoin the use of explosives, permitting to defendant their partial use, is not one from which an appeal would be allowed. Morris v. Wash. & G. R. R. Co., 6 App. D. C. 513 ; 33 W. L. R. 484. A special appeal from an interlocutory order in a criminal case is only allowable in a case of exigency. Ainsworth v. United States, 1 App. D. C. 520 ; In re Gassenheimer, 34 App. D. C. 312 ; 33 W. L. R. 808. An application for the allowance of a special appeal from an order of the justice of the court below, holding a special term for the trial of criminal cases, refusing to transfer a case for trial before some other jus- tice, a trial previously had before him having resulted in a mistrial, de- nied. In re Gassenheimer, 24 App. D. C. 312; 32 W. L. R. 808. The Court of Appeals has power under the provisions of § 7 of the act creating it, to allow a special appeal from an order sustaining a demurrer to one of two counts of a declaration in an action on two promissory notes. Commercial Nat. Bank v. Brewing Co., 16 App. D. C. 186 ; 38 W. L. R. 320. A special appeal from an order refusing to grant a preliminary injunc- tion in a suit by Indians against the Secretary of the Interior and other officers of that Department, to prevent the opening to settlement as pub- lic lands, certain lands claimed by petitioners, refused. Lone Wolf v. Hitchcock, 18 App. D. C. 515. Only the order appealed from, and not any previous order in the cause, is proper for consideration upon a special appeal, unless the order ap- pealed from necessarily involves the merits of preceding orders. Siggers ■V. Snow, 15 App. D. C. 575 ; 38 W. L. R. 80. An appeal will not lie from an interlocutory order denying an injunc- tion and discharging a rule and restraining order previously granted. U. S. Elec. Lighting Co. v. Ross, 9 App. D. C 558 ; 34 W. L. R. 838. As to whether the provisions of § 1533, Code, apply to demurrers that have been sustained as well as to those which have been overruled; and 70 Appeal and Error. whether those provisions were intended to authorize appeals in pending cases upon demurrers interposed and disposed of before the Code went into effect. See Chesapeake & O. Ry. Co. v. Patton, 23 App. D. C. 113; 32 W. L. R. 85. In the case of interlocutory appeals taken to or allowed by this court, equally as in the case of appeals from final judgments or decrees, the de- cision of this court becomes the law of the case, final and irrevocable, upon all questions involved or that might have properly been brought forward in such interlocutory decision, save only that this court may, upon a proper showing, revoke or modify its decision, or allow the cause to be reopened, and save also that upon the final hearing the court below may not necessarily be bound in all cases by such interlocutory decision of this court. Farrow v. Eclipse Bicycle Co., 18 App. D. C. 101; 29 W. L. R. 218. XVII. Bonds and Undertakings. A bond for costs is not required in a case where a supersedeas bond is given. Dancy v. Clark, 24 App. D. C. 487 ; 33 W. L. R. 18. No bond is required of the United States Marshal on an appeal from an order of discharge in habeas corpus proceedings. Palmer v. Thompson, 20 App. D. C. 273; 30 W. L. R. 483. On an appeal by the warden of the jail from an order discharging a prisoner on habeas corpus no bond is required. Leonard v. Rodda, 5 App. D. C. 256; 23 W. L. R. 229. An appeal will not be dismissed because of the fact that the appeal bond was approved by the court below without notice having been first given to the appellees to show cause against the approval. Alfred Richards Brick Co. V. Rothwell, 29 W. L. R. 687. Where, on the nineteenth day after judgment entered, appellant filed an appeal bond in the office of the clerk of the Supreme Court of this Dis- trict, but the same was not presented to the justice of that court for ap- proval by him until the twenty-second day after entry of the judgment, the refusal of such justice to approve the bond on the ground that the time limited by the rules within which it could be approved had passed, is proper; and a petition for a writ of mandamus to compel the approval of the bond by such justice will be dismissed. Mulvihill v. Clabaugh, 21 App. D. C. 440; 31 W. L. R. 210. Where a justice refuses to approve an appeal bond on the ground that one of the signatures is not genuine, it is the duty of the appellant to make proof of such signature and to apply for reasonable time therefor or to re-offer it or a new bond within the time prescribed for taking an appeal; and if satisfied it is the duty of the justice to approve the bond nmw pro tunc. However, if no such application is made, but after the time limited for taking the appeal, the same bond is presented for ap- proval and the justice refuses to approve it on the ground that the time hmited has expired, mandamus will not lie to compel him to approve it nunc pro tunc. Beal v. Cox, 14 App. D. C. 368 ; 27 W. L. R. 231. An appeal bond which at the time of its presentation to the court was in form a supersedeas bond and bore the signatures of appellant and the surety, but before approval was, with surety's consent, so changed as to Appeai, and Error. 71 secure costs only, held sufficient. Parsons v. Little, 28 App. D. C. 218 ; 35 W. L. R. 46. Section 1233 of Code, authorizes an appeal without the necessity of giving an undertaking that shall act as a supersedeas ; and an under- taking with but one surety thereon, while not sufficient as a supersedeas bond, is sufficient as an ordinary appeal bond, and in such case the dis- missal of the appeal for failure to give a supersedeas bond is error. Dowling V. Buckey, 27 App. D. C. 205 ; 34 W. L. R. 286. An appeal was taken by defendants from a decree holding their testator a trustee for complainants, and directing an accounting, and a supersedeas bond given. A stipulation was entered into that this appeal should not be heard until the coming in of the auditor's report, when it should be heard with the appeal from the decree to be entered on the auditor's report. From the latter decree defendants also appealed, but gave no supersedeas bond. Held, that under the circumstances of this case the bond given on the first appeal was sufficient to sustain the entire appeal, and a motion to dismiss the second appeal denied. Darlington v. Turner, 24 App. D. C. 573; 33 W. L. R. 114. Where the bond given on suing out a writ of error is for costs only, the writ of error does not operate as a supersedeas. McLane v. Cropper, 5 App. D. C. 276; 23 W. L. R. 115. Under § 31, Code D. C, it is made a condition precedent to the allow- ance of an appeal from a justice of the peace that the appellant shall enter into an undertaking, with sufficient surety, to "satisfy and pay whatever final judgment may be recovered in the appellate court, and agree that such judgment may be entered against principal and sureties." Schrot V. Schoenfeld, 23 App. D. C. 421; 32 W. L. R. 230. An undertaking conditioned merely "to satisfy and pay all intervening damages and costs arising on such appeal" is not in compliance with the statute ; and in such case the appeal is properly dismissed for insuf- ficiency of the undertaking. Ih. Where the undertaking entered into before the justice of the peace is insufficient, a proper bond can not be filed for the first time in the ap- pellate court. lb. The undertaking on appeal from a justice of the peace must be given within six days after the rendition of the judgment; and if not presented within that time the right of appeal will be lost. lb. A deposit in the lower court in lieu of an appeal bond, expressly made by an attorney of appellant out of his own funds as security for costs of appeal and not to act as a supersedeas, cannot, on dismissal of the appeal, be subjected to payment of judgment rendered therein. Mitchell V. Evans, 18 App. D. C. 254 ; 29 W. L. R. 399. As to remedy where justice of the peace has wilfully and wrongfully refused to approve an appeal bond. See Fidelity & Deposit Co. v. Beck, 12 App. D. C. 237; 26 W. L. R. 104. As to sufficiency of assignment of breach of appeal bond. See Fulton V. Fletcher, 12 App. D. C. 1. As to when suit on appeal bond authorized. lb. In an action on an appeal bond its validity cannot be attacked on the 72 Appeal and Error. ground that the appeal was from an interlocutory order, nothing in the record showing want of jurisdiction. lb. The surety on an appeal bond is liable for damages found to be the natural and proximate result of the appeal. lb. The liability of a surety on an appeal bond continues for such time after the return of the mandate as is reasonably necessary to carry it out. lb. XVIII. Ground for Reversal. A judgment will not be reversed because of an erroneous ruling which is non-prejudicial. Hughes v. Heyman, 4 App. D. C. 444; 22 W. L. R. 737 ; Raub v. Carpenter, 17 App. D. C. 505 ; 29 W. L. R. 122. A decree containing a mistake in the recital of costs of a sale should not be reversed for that reason. United States v. Groome, 13 App. D. C. 460; 26 W. L. R. 802. Where it appears from the facts in the record that the defendant has a good ground of defense to the bill of the plaintiff, but because of some defect in the pleadings or proceedings the benefit of that defense had been denied him, the cause will be remanded that proper amendments may be made and further proceedings had. Wagenhurst v. Wineland, 22 App. D. C. 356; 31 W. L. R. 521. Where in a will contest, the evidence on the issue as to mental capacity is such as to require its submission to the jury, who find against the will on that ground, as well as on the other issue of undue influence, and judgment is entered denying probate of the will, the caveatees, to obtain reversal on appeal, must show error of law in the rulings of the trial court in respect of both issues. Morgan v. Adams, 29 App. D., C. 198; 35 W. L. R. 190. XIX. Mandate. A cause will not be remanded in order that an injunction may be awarded against a public officer whose term of office has expired. Don- aldson V. Wright, 7 App. D. C. 45 ; 23 W. L. R. 642. Where there are several defendants a judgment of reversal for error as to some of them may be extended to all and a new trial granted as to all, where injustice might otherwise result. Gas Light Co. v. Lansden, 172 U. S. 534, reversing 9 App. D. C. 608. It is error to remand a case for the purpose of allowing complainant to amend a bill and assert a new and distinct ground of relief where such mandate deprives defendants of all opportunity to interpose any defence. Warner v. Godfrey, 186 U. S. 365, reversing 17 App. D. C. 102. Where all the issues litigated are found in favor of the defendants to a suit, it is error for an appellate court to remand the cause to allow com- plainant to amend her bill and assert a new and distinct ground of relief from that upon which the case was actually tried. Warner v. Godfrey, 186 U. S. 365 ; 30 W. L. R. 502. That the mandate of the appellate court, on the reversal of a decree enjoining the enforcement of executions on judgments only directs that the bill be dismissed and that such other orders be made in regard to the fund in court as may be proper, not inconsistent with the opinion of Appeal and Error. 73 this court, will not preclude the court below from assessing damages to the defendants accruing by reason of the injunction. Dodge v. Cohen, 14 App. D. C. 583 ; 27 W. L. R. 334. Where several appeals are taken from a decree ratifying in its entirety a report of the auditor, which report is erroneous in that it gives priority in the distribution of a fund to some claimants who are not entitled thereto, a reversal goes to the entire decree and necessitates the statement of a new account. Alfred Richards Brick Co. v. Rothwell, 19 App. D. C. 178; 29 W. L. R. 842. Where on appeal, a judgment is reversed on the ground that the amount shown and declared to be due under the contract sued on was not sufficient to give the trial court jurisdiction, and the cause remanded to the court below in order 'that the plaintiffs may enter a non-suit, or, upon failure so to do, that the court should proceed to dispose of the case in a manner not inconsistent with the opinion of the appellate court, the court below is without power to allow the plaintiffs, by way of amend- ment, to file a new declaration setting up a different contract and found- ing the right to recover upon a cause of action essentially different from that originally declared on. Ex Parte Mansfield, 11 App. D. C. 5.58; 25 W. L. R. 783. In such case, the court below is bound to execute the mandate of this court, and either to non pros, the action, or to enter it dismissed, and mandamus will lie to control its action where it attempts to proceed con- trary to the terms of the mandate. lb. XX. Criminal Appeals. A writ of error or appeal does not lie on behalf of the United States in a criminal case in the absence of express statutory provision; and no such provision is contained in the act of Feb. 3, 1893, creating the Court of Appeals. United States v. Ainsworth, 3 App, D. C. 483; 22 W. L. R. 404. Under § 934, Code D. C, the United States may appeal from an order quashing an indictment pursuant to § 939 of the Code. United States v. Cadarr, 24 App. D. C. 143; 32 W. L. R. 486; United States v. Hayman, 24 App. D. C. 158 ; 32 W. L. R. 491. The Court of Appeals has no appellate jurisdiction over the police court. Bx parte Dries, 3 App. D. C. 165 ; 22 W. L. R. 301. XXI. In forma pauperis. The statutes of 11 Henry VIL, ch. 12 and 23 Henry VHL, ch. 15, do not apply to or contemplate the prosecution of appeals or writs of error in forma pauperis. Bx parte Harloiv, 3 App. D. C. 203. The act of July 20, 1892, allowing suits to be brought in forma pauperis, does not apply to proceedings in appellate courts. McGrane v. McCann, 3 App. D. C. 331; 22 W. L. R. 101. XXII. Practice. Failure to suggest a question at the hearing on appeal will ordinarily be considered a waiver of it, and the court will not feel bound to con- sider it unless it be fundamental in its nature. Olmstead v. Webb, 5 App. D. C. 38; 23 W. L. R. 169. 74 Appeal and Error. No objection of want of jurisdiction in equity having been raised by defendant either in the court below or in this court, the question will not be raised by this court of its own motion, notwithstanding it might be found, upon consideration, that an adequate remedy at law for the right sought to be enforced existed. Manning v. Telephone Co., 18 App. D. C. 191; 29 W. L. R. 342. A decree of the appellate court will not, on the petition of the un- successful party, be so modified as to allow an amendment of the original bill where the proposed amendment would make a new case. Ambler v. Archer, 2 App. D. C. 41; W. L. R. An application for a modification of a judgment of affirmance on ap- peal from a judgment on demurrer so as to allow an amendment of the declaration demurred to, will not ordinarily be entertained. Jackson & Sharp Co. v. Fay, 20 App. D. C. 105 ; 30 W. L. R. 378. Neither a suggestion of a diminution of the record, nor a motion to strike out a part of the record, will be entertained, when not sworn to, and when it fails to point out the defects in the record with the particular- ity required by Rule 14 of this court. Clark v. Roller, 23 App. D. C. 453 ; 32 W. L, R. 460. Where, pending an appeal, and without fault of the defendant, an event occurs which renders it impossible for the appellate court to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. Gannon v. Georgetown College, 28 App. D. C. 87 ; 34 W. L. R. 530. The appellate court may, for causes supervening after appeal taken, and without reference to the correctness of the judgment or decree ap- pealed from, reverse such judgment or decree and remand the cause. Dabney v. Dahney, 20 App. D. C. 440 ; 30 W. L. R. 727. An appellate court will not interfere with the report of commissioners in condemnation proceedings, to correct the amount of damages, except in cases of gross error, showing prejudice or corruption. Seufferle v. Macfarland, 28 App. D. C. 94; 34 W. L. R. 526. Exhibits merely referred to in an equity pleading, and prayed to be taken as part thereof, will not be considered on appeal. Siggers v. Snow, 15 App. D. C. 407 ; 28 W. L. R. 79. Where papers are not made exhibits to an equity pleading, nor other- wise incorporated into it, but are included by the clerk of the court below in the transcript at the direction of the appellant, a motion by the appellee to expunge them from the record will be allowed ; and the correction may be made in this court. lb. Where a special appeal allowed from an order, passed July 13, for an injunction pendente lite was abandoned, and on Aug. 16, a supplemental order was passed from which a special appeal was allowed, and there- after, on Oct. 7, appellant moved to dissolve the order of July 13, and a special appeal was also allowed from the order denying such motion. Held, that by abandoning his appeal from the order of July 13, appellant acquiesced in such order, which must be assumed by this court to be right and proper, and the merits of such order can not be reviewed on appeal from the order denying the motion to dissolve. lb. It will not do to experiment with the right of appeal in anticipation of Appeal and Error. 75 the subsequent allowance of an amendment. Such allowance will be granted only when the interests of justice seem very plainly to demand it. Dis. of Col. V. Ball, 22 App. D. C. 543 ; 31 W. L. R. 726. An appellate court should not labor to sustain an objection based upon a sentence in a charge of the trial court, which, taken by itself, may not express in the happiest terms a proposition which is correct. Georgetown &■ Tennallytown Ry. Co. v. Smith, 25 App. D. C. 259 ; 33 W. L. R. 261. Well settled rules of practice should not be ignored. If the power exists in the appellate court to do so, it should be exercised, if at all, only in extreme cases to prevent a plain miscarriage of justice. Neely Electric Con. & S. Co. v. Browning, 25 App. D. C. 84 ; 33 W. L. R. 152. That the Supreme Court of the United States has dismissed an appeal from a decree of the Court of Appeals for lack of finality will not support a motion by appellant that the latter court vacate its decree because the decree of the Supreme Court of the District appealed from was not final. Gilbert v. Wash. Ben. End. Assn. 15 App. D. C. 40; 27 W. L. R. 340. On a former appeal in this case the judgment was, at first, ordered to be reversed and a new trial granted for error of the trial court in receiving additional testimony prejudicial to defendant after the jury had returned their verdict and been discharged. On motion by the United States for rehearing, this court modified its opinion by directing the vacation only of the judgment and sentence, and remanded the case for further pro- ceedings upon the verdict. The minutes of this court contained no re- cital of an order reversing the judgment and awarding a new trial, but only of the order vacating the judgment and sentence and remanding the cause. The court below entered a judgment in accordance with the man- date of this court, imposing the same sentence. On an appeal from that judgment, held that a motion by appellant to restore to the minutes of this court its order reversing the judgment and awarding a new trial would be denied, as there was nothing upon which it could operate; but the facts recited in order that appellant may have the benefit thereof in any subsequent proceeding. Raymond v. United States, 26 App. D. C. 250; 34 W. L. R. 562. As to allowance on appeal of remittitur of excessive verdict. See Denison v. Lewis, 5 App. D. C. 328; 23 W. L. R. 218. As to amendment of bill in equity in appellate court. See Johnson v. Elkins, 23 App. D. C. 486; 32 W. L. R. 440. To ascertain the grounds and limitation of the scope of a decree of the Supreme Court of the United States, in a case appealed from the Court of Appeals, the opinion of the Supreme Court may be resorted to, although its decree was for an unqualified dismissal. Baker v. Cummings, 16 App. D. C. 1; 28 W. L. R. 131. On appeal on the merits, the question of the jurisdiction of the lower court not having been raised in the court below or by either party in the appellate court, the appellate court of its own motion suggested the probable want of jurisdiction of the lower court and refused to hear argument on the merits until that question could be determined. Columbia Sand Dredging Co. v. Morton, 28 App. D. C. 288; 34 W. L. R. 766. An appellant may, at any time before the transcript of record is filed in the appellate court, withdraw his appeal by filing in the office of the ■j(i Appeal and Error. clerk of the court below an order directing its dismissal. Bvans v. Humphreys, 9 App. D. C. 392; 24 W. L. R. 783. XXIII. To the Supreme Court of the United States. Allegations of damages in excess of $5,000 caused by levy on property worth not more than $1,800 are not sufficient to give jurisdiction of an appeal from the Court of Appeals, where there are no allegations which could justify exemplary damages. Magrudcr v. Armes, 180 U. S. 496. The amount of the estate sought to be passed by a will is the matter in controversy on a contest of the will, without regard to the amount of the interest of any one of the contestants. Overby v. Gordon, 177 U. S. 214. The jurisdictional amount is not involved in a controversy as to right of possession of property where the appeal was taken shortly after the judgment and the rental value appears to be $1,560 per annum, although the value of the property is in excess of $5,000. Willis v. Trust Co., 167 U. S. 76. The requisite amount in dispute to enable the Supreme Court of the United States to review a judgment of the Court of Appeals of the Dis- trict is involved where, although the bill prays for the conveyance of a strip of land of slight value, the alternative relief prayed is the rescission of a contract of sale and repayment of $6,000 purchase money. Shappirio V. Goldberg, 192 U. S. 233 ; 32 W. L. R. 132. The right of one of several defendants to appeal from a decree estab- lishing plaintiff's title by adverse possession is dependent upon the value of his separate interest and not upon the value of the whole. Howison V. Masson, 29 App. D. C. 338. The loss by a receiver convicted of embezzlement, by reason of such embezzlement, of his commissions exceeding $5,000 in amount, does not constitute an amount in controversy to give the Supreme Court jurisdic- tion to review the judgment in the criminal case. Fields v. United States, 205 U. S. 292. A writ of error will not lie to the Court of Appeals of the District to review a judgment of that court in a controversy concerning the custody and care of infants ; the matter in dispute being of a nature incapable of being reduced to any pecuniary standard of value. Perrine v. Slack, 164 U. S. 452 ; 24 W. L. R. 814. A criminal case as such cannot be carried to the Supreme Court of the United States on writ of error from the Court of Appeals of the Dis- trict. Fields V. United States, 205 U. S. 292; Sinclair v. Dis. of Col., 192 U. S. 16; Chapman v. United States, 164 U. S. 436. A final judgment to give this court jurisdiction is one which terminates the litigation between the parties on the merits of the case, so that on af- firmance the court below would have nothing to do but execute the judg- ment or decree it had already rendered. Macfarland v. Brown, 187 U. S. 239. An appeal will not lie from a decree of the Court of Appeals reversing an order of the Supreme Court of the District and remanding the cause for vacation of the part appealed from and for further proceedings according to law; such decree not being a final one. Macfarland v. Brown, 187 U. S. 239 ; Macfarland v. Byrnes, 187 U. S. 246. Appeal and Error. "jj A judgment or decree, to be final, within the meaning of the acts of Congress giving the Supreme Court of the United States jurisdiction on appeals and writs of error, must terminate the litigation between the parties on the merits of the case, so that if there should be an affirmance by the highest court, the court below would have nothing to do but to execute the judgment or decree it had already rendered. Macfarland v. Brown, 187 U. S. 239; 30 W. L. R. 838. A decree of the Court of Appeals reversing an order of the lower court overruling exceptions to the verdict of a jury of seven in condemnation proceedings under the act of Mar. 3, 1899, and remanding the cause "that proceedings may be taken and a jury of twelve ordered as directed by the statute," is not a final decree from which an appeal will lie to the Supreme Court of the United States. Ih. For all the purposes of an appeal to the Supreme Court U. S., the decree of the Court of Appeals finally determining the controversy and remanding the case to the court below with direction to pass a decree in accordance therewith, was a final decree. Mdckall v. Willoughhy, 6 App. D. C. 135; 23 W. L. R. 261. A decree of the Court of Appeals of the District whereby a decree of the lower court dissolving a temporary injunction in a suit by a subscriber to enjoin a telephone company from removing its instrument from his place of business was reversed and the cause remanded for the entry of an injunction in the language of the preliminary order, with the proviso that it should operate until such time as the company should vol- untarily withdraw from business in this District, is a final decree from which an appeal lies to the Supreme Court U. S. Ches. & Pot. Telephone Co. V. Manning, 186 U. S. 238; 30 W. L. R. 386. A decree of the Court of Appeals of the District of Columbia reversing the Supreme Court of the District as to some of the findings of fact and conclusions of law and directing a new decree to be entered in accordance with the opinion is not a final decree and an appeal will not lie there- from to this court. Earle v. Myers, 207 U. S. 244. Appeal and not writ of error is the proper course for the review of a decree of the Court of Appeals in respect of final settlements in the Orphans' Court. Kenaday v. Sinnott, 179 U. S. 606. A judgment of the Court of Appeals in condemnation proceedings can only be reviewed on writ of error. Metropolitan R. R. Co. v. Dis. of Col, 195 U. S. 323. The Supreme Court of the United States has jurisdiction to review by writ of error, under the act of Feb. 9, 1893, a judgment of the Court of Appeals of the District, involving the constitutionality of an act of Con- gress authorizing a, trial by jury before a justice of the peace. Capital Traction Co. v. Hdf, 174 U. S. 1 ; 27 W. L. R. 262. The concurring views of the auditor and the courts below respecting the question of the compensation of a receiver for his services will be given great consideration. Cake v. Mohun, 164 U. S. 311 ; 35 W. L. R. 9. Even if an appellate court errs in declining jurisdiction of an appeal, if the order appealed from is one requiring affirmance, the Supreme Court 78 Appeal and Error. of the United States will affirm the decree dismissing the appeal. Tubman V. Balto. & O. R. R. Co., 190 U. S. 38. An exception to the refusal of the trial court to reconsider its order, made on defendant's motion, permitting the withdrawal of a plea in abate- ment and the filing of a plea in bar, and to allow the trial of the issue joined on the plea in abatement, is not available in the Federal Supreme Court. Chimn v. City & Sub. Ry. Co., 207 U. S. 302; 36 W. L. R. 20; reversing 23 App. D. C. 551. A writ of error to the Supreme Court U. S. refused in a case involving the right of appeal from a judgment of a justice of the peace entered on the verdict of a jury. Brightwood Ry. Co. v. O'Neal, 10 App. D. C. 205; 25 W. L. R. 98. A proceeding involving the validity of a rule of practice of the Patent Office established by the Commissioner under the power conferred by § 483, R. S., is one in which is drawn in question the validity of "an author- ity exercised under the United States," within the meaning of the act of Feb. 9, 1893, giving an appeal to this court from final judgments and decrees of the Court of Appeals of the District of Columbia in such cases. Steinmetz v. Allen, 192 U. S. 543; 32 W. L. R. 147. The provision made by § 8, of the act establishing the Court of Appeals of the District, for a writ of error or appeal in cases in which is drawn in question the validity of a treaty or statute of or an authority exercised under the United States, has application only to civil cases. Chapman v. United States, 164 U. S. 436 ; 24 W. L. R. 797. XXIV. From Justices of the Peace. No appeal lies to the Supreme Court of the District from a judgment of a justice of the peace in a case tried by a jury. Brightwood Ry. Co. v. O'Neil, 24 W. L. R. 406. An appeal will lie to the Supreme Court of the District from a judgment of a justice of the peace whether such judgment is entered upon the ver- dict of a jury or in a trial by the justice alone. Capital Traction Co. v. Hof, 24 W. L. R. 646. In every case where the value in controversy exceeds $5, Congress has by the act of 1823 and by subsequent legislation, authorized either party to appeal from the judgment of the justice of the peace, although entered upon the verdict of a jury, to the Supreme Court of the District, and to have a trial by jury in that court. Capital Traction Co. v. Hof, 174 U. S. 1; 27 W. L. R. 262. An order of a justice of the peace quashing a writ of attachment is not a final order within the meaning of § 30, Code D. C, and is therefore not appealable. Robertson v. Barnard, 24 App. D. C. 8; 33 W. L. R. 458. The method of proceeding in prosecuting appeals from justices of the peace to the Supreme Court of the District is wholly statutory, and must be strictly pursued in regard to everything necessary to give the appellate court jurisdiction of the cause and of the parties thereto. Slater v. Willige, 16 App. D. C. 364; 28 W. L. R. 454. Section 31 of the Code does not require that there shall be two or more sureties on the undertaking, and a single surety is all that is re- Appeal and Error. 79 quired provided he is sufficiently responsible in the opinion of the justice. Ridenour v. Chapman, 35 W. L. R. 719. The appeal bond required by § 35 of the Code to be given on appeal from a judgment of a justice of the peace on a trial of right of property is a different instrument from the undertaking required by § 31 to be given on an appeal from a judgment of a justice of the peace in an ordi- nary proceeding; and the giving merely of the undertaking provided for by § 31 is not sufficient to give this court jurisdiction to entertain an ap- peal from a judgment on trial of right or property. Davidson v. Mitchell, 34 W. L. R. 309. Under § 1233 of the Code, in case of an appeal by the defendant in a landlord and tenant proceeding, two or more sureties are required on the undertaking given by him in order for the same to operate as a superse- deas. Bowling V. Buckey, 27 App. D. C. 205 ; 34 W. L. R. 286. A notice of appeal from a justice of the peace gave the name of the pro- posed surety as "The Guaranty and Trust Company," but omitted the words "of Scranton, Pa." though the correct address of the proposed surety was given. The justice, on objection by the appellee, refused to approve the bond on the ground that the notice did not comply with Rule 20 of the Supreme Court, regulating notice in such cases. Held, that it was the duty of the justice to approve the bond, and on his refusal mandamus would lie to compel the approval of the bond. Bundy v. U. S. ex rel. Darling, 25 App. D. C. 459; 33 W. L. R. 434. Security for costs by a non-resident plaintiff on instituting suit before a justice of the peace, pursuant to § 11 of Code, is limited to the costs to be incurred in the justice's court, and on appeal the plaintiff is required to give security for costs to be incurred in the appellate court, pursuant to § 175 of Code. Hayward v. Tschiffely, 32 W. L. R. 777. Where the summons issued for an appellee is returned "not served be- cause fee not paid," and the appellee appears specially for the sole purpose of objecting to the jurisdiction and moves to dismiss the appeal, it is within the discretion of the court to overrule such motion, and in such case the summons for the appellee may be renewed, and further time be given for having it served and returned. Slater v. Willige, 16 App. 364; 28 W. L. R. 454. An order requiring the appellee in an appeal from a justice of the peace to appear and submit himself to the jurisdiction of the court, or in de- fault of so doing that the case be proceeded with as in case of default, such order will be inoperative and void as not being within the jurisdic- tion of the court ; and certiorari may issue to have the record of such order certified to this court to the end that it may be quashed. Ih. To overthrow a practice of seventy years in respect of appeals from justices of the peace and the construction of the statute upon which it is based, the errors of that construction should be made very plainly to ap- pear. Brightwood Ry Co. v. O'Neal, 10 App. S. C. 205 ; 25 W. L. R. 98. The statement of the return of a justice of the peace to a writ of certiorari, must, for the purpose of the hearing of an appeal from an order quashing the writ, be taken as true. Carver v. O'Neal, 11 App. D. C. 353; 25 W. L. R. 704. The right of trial by jury on appeal from a justice of the peace is not 8o Appeal and Error. unduly obstructed by the provisions enlarging the jurisdiction of justices of the peace to $300, and requiring every appellant to give security to pay and satisfy the judgment of the appellate court. Capital Traction Co. v. Hof, 174 U. S. 1 ; 27 W. L. R. 262. When judgment by default can be taken against party on an appeal from a justice of the peace. See Sturges v. Hancock, 4 App. D. C. 289; 22 W. L. R. 697. As to validity of judgment by default against surety on undertaking on appeal from justice of the peace. See Tenney v. Taylor, 1 App. D. C. 223; 21 W. L. R. 649. The ruling of a justice of the peace on a plea to the jurisdiction under § 5 of Code can be corrected by appeal to the Supreme Court, and not by certiorari. Anderson v. Morton, 21 App. D. C. 444; 31 W. L. R. 274. A judgment of the Supreme Court of the District on appeal from a justice of the peace is not reviewable by the Court of Appeals. In re Key, 189 U. S. 84. Affirming Key v. Roberts, 20 App. D. C. 391. XXV. Writ of Error to Police Court. The power exercised by this court over convictions in the police court is strictly of an appellate character, by writ of error, when questions arising in the course of a trial are regularly presented and reserved by bill of exceptions, as directed by the act of March 2, 1897 ; and it is with- out power to issue the original common law writ of certiorari to remove into this court the proceedings in a criminal case pending in the police court. Sullizan v. Dis. of Col, 19 App. D. C. 210; 30 W. L. R. 55. The rule of this court providing for writs of error to the police court of this District, made by express authority of act of Congress, has the force of law, and is binding upon the court as well as parties ; and can not be dispensed with to meet the hardships of a particular case. Talty V. DJs. of Cot., 20 App. D. C. 489; 30 W. L. R. 774. The proper time to give notice of an intention to apply for a writ of error in a case tried in the police court is when the first exception is taken ; but it will not be necessary to repeat the notice with every excep- tion taken. Tiibins v. Dis. of Col, 21 App. D. C. 267 ; 31 W. L. R. 460. Where the record on a writ of error to the police court shows that that court, without considering evidence as to the reasonableness of a police regulation, relative to handle bars on bicycles, held that on its face it was reasonable and valid, this court, being without power to pass upon the question as to whether the facts in proof are sufficient to show the regu- lation to be reasonable or unreasonable, will reverse the judgment and remand the cause that a new trial may be had. Moore v. Dis. of Col, 12 App. D. C. 537; 26 W. L. R. 343. As to whether a conviction in the police court can be affirmed where material testimony has been erroneously admitted on behalf of prosecution. See Heylman v. Dis. of Col 27 App. D. C. 563 ; 34 W. L. R. 387. See also Bill of Exceptions; Cbrtiorari ; Costs; Exceptions; Habeas Corpus; Judgments and Decrees; Patents; Practice and Procedure; Rules of Court. Appearance — Appliances. 8i APPEARANCE. A ganeral appearance by defendant for purpose of procuring a contin- uance is a waiver of the requirement as to security for costs to be given by a non-resident plaintiff. Costello v. Palmer, 20 App. D. C. 210; 30 W. L. R. 403. The effect of a general appearance after having appeared specially and made objection which has been overruled, is the same as if no such ob- jection had been made; and in such case the defendant loses the right to contest the ruling of the court below on his objection to the jurisdiction on appeal. Guarantee Sav. L. & I. Co. v. Pendleton, 14 App. D. C. 384; 27 W. L. R. 233. A party must be taken to know and understand the effect of appearing, pleading to, and going to trial on an information. Holden v. United States, 24 App. D. C. 318; 33 W. L. R. 34. Effect of appearance to substituted information. Ih. The jurisdiction of the court in which an indictment or information is found is not impaired by the manner in which accused is brought before it. Ih. General appearance of non-resident defendants in answer to service by publication cures irregularity in obtaining order therefor. Landram v. Jordan, 25 App. D. C. 291; 33 W. L. R. 243. A non-resident improperly served in an effort to bring him in as a third party under § 1531 of Code has the right to appear specially for purposes of jurisdiction. Dexter v. Lichliter, 24 App. D. C. 223; 33 W. L. R. 732. Where a non-resident improperly served in an effort to bring him in as a third party under § 1531 of Code, files, subsequent to his special appear- ance for purposes of jurisdiction, an affidavit showing pendency of suit by him in the jurisdiction of his residence to recover the same fund in- volved in the action in this jurisdiction, held, not to operate as a general appearance. lb. Irregularity in calendaring cause for hearing without notice to de- fendant cured by appearance of defendant. American Ice Co. v. Eastern Trust & B. Co., 17 App. D. C. 422 ; 29 W. L. R. 55. The substitution as caveators, with their consent, of the widow, next of kin and personal representatives of a deceased caveator, and their sub- sequent motion to postpone the trial of issues, is conclusive of their ap- pearance in the proceedings. Estate of Obold, 30 W. L. R. 345. Effect of special appearance for purposes of objecting to jurisdiction of justice of the peace as waiver of demand for jury trial. Chamberlain v. Edmonds, 18 App. D. C. 332; 39 W. L. R. 395. As cure of want or insufficiency of service of process. See Hutchins v. Munn, 28 App. D, C. 271 ; 34 W. L. R. 734. Effect of as waiver of requirement of equity rule 42, as to undertaking. Drew V. Hogan, 25 App. D. C. 55 ; 33 W. L. R. 488. As to effect of appearance in equity suit without being served, on right to require security for costs. See Bothineau v. O'Grady, 34 W. L. R. 148. APPLIANCES. See Master and Servant, 82 Appropriations of Public Money — Arbitration. APPROPRIATIONS OF PUBLIC MONEY. As to power of Congress to appropriate for a private purpose revenues to be derived from taxation. See Miles Co. v. Carlisle, 5 App. D. C. 138 ; 23 W. L. R. 33. See Constitutional Law. AQUEDUCT BRIDGE. See BRiDGfis. ARBITRATION AND AWARD. In the absence of statutory prohibition or other conventional disquali- fications, the right to submit to arbitration is as broad as the right to sue and be sued. Bailey v. Dis. of Col., 9 App. D. C. 360; 24 W. L R. 745. Where a claimant proposed to the District Commissioners to submit to arbitration a claim against the District, for the recovery of which suit had been brought, the report of the referee to be final, and after frequent interviews and letters the Commissioners passed an order referring the cause to a referee named, it was held, that the proposal and orders did not themselves constitute an agreement, and that parol evidence was ad- missible to show the connection between them, and the transactions be- tween the writing of the letter and the making of the order in order to determine what the agreement of the parties was. lb. The Commissioners of the District of Columbia and the personal rep- resentative of a deceased claimant may submit to arbitration a claim against the District; and the agreement to submit may be in writing or oral. lb. Where the testimony taken before an arbitrator is not before the court, no inference as to the propriety of the award can be drawn therefrom; but the award must be judged by its own findings of facts and its legal conclusions therefrom, and not by any extraneous testimony. lb. The testimony is no part of the award of an arbitration, nor of the report of a referee unless specifically made so by the report itself, or it has been directed by the order of reference to be returned to the court. lb. An agreement to arbitrate, not under rule of court or within the terms of a statute enacted for such purpose, is a contract. Dis. of Col. v. Bailey, 171 U. S. 161 Under the act of June 11, 1878, ch. 180, the Commissioners of the Dis- trict are without power to submit a controversy for breach of contract to common law arbitration. lb. Where a pending cause is by consent of parties referred to an arbi- trator with the understanding that his award shall be returned and filed in the cause, for final judgment, such reference does not work a dis- continuance, but operates as a stay of proceedings, although not ex- pressed that it should so operate ; and that whether the rule of court be entered or not. Bailey v. Dis. of Col, 4 App. D. C. 356 ; 22 W. L- R- 735. Where one of two parties has an equitable lien upon fees due the other and in arbitration between the parties to determine the amount due such first party he is awarded a sum certain, his lien is not merged in the award but remains enforceable for the amount of the award. Sanborn v, Maxiiiell 18 App. D, C- 245; g9 W, L. R, 607, Architects — Army and Navy. 83 As to reference to auditor amounting to a submission to arbitration and precluding right to appeal from decree overruling exceptions to auditor's report. See Thorn v. Thorn, 28 App. D. C. 120 ; 34 W. L. R. 433. As to sufficiency of affidavit of defense in action on an award. See Bailey v. Dis. of Col, 4 App. D. C. 356 ; 22 W. L. R. 735. As condition precedent to maintenance of action on contract. Fontano V. Robbins, 18 App. D. C. 402 ; 29 W. L. R. 527. See Contracts. ARCHITECTS. As to conclusiveness of architects' certificate to preclude owner of building from showing violations of building contract. See Mercantile Trust Co. V. Hensey, 27 App. D. C. 310 ; 34 W. L. R. 206. As to power of parties to a building contract to exclude power of architect. See Fontano v. Robbins, 22 App. D. C. 253 ; 31 W. L. R. 487. ARMY AND NAVY. The act of March 3, 1863, relative to the distribution of medals of honor, contemplates only those who distinguished themselves in action, and not those rendering services as a spy or military expert. DeArnaud V. Ainsworth, 24 App. D. C. 167. In time of war the President has the authority, under the Constitution and laws, to dismiss an officer of the Army and Navy from the service for any cause which in his judgment renders the officer unsuitable for, or whose dismissal would promote the public service. U. S. Ex rel. Brozvn V. Root, 18 App. D. C. 239; 29 W. L. R. 477. An officer of the Army was tried by court martial and found not guilty ; but the finding was disapproved by the commanding general and recon- sideration ordered, whereupon he was found guilty and sentenced to dis- missal from the service. The sentence was approved by the commanding general and forwarded to the President for his approval, but it was re- turned to the commanding general with the statement that in time of war such approval was not required. The sentence was thereupon ordered to take effect Feb. 17, 1899. Subsequently, on May 25, 1899, relator's regiment was mustered out. On petition for a writ of mandamus to the Secretary of War to compel him to cause the relator to be mustered out and honorably discharged, Held, that as the relator's dismissal was within the power of the President and the grounds of the exercise of that power are not matters of judicial inquiry; and relator had not been restrained of his liberty or deprived of any right of property over which the court had jurisdiction, the petition for the writ of mandamus must be dismissed. lb. Section 1117 R. S. U. S., providing that no person under the age of 21 years shall be enlisted, etc., in the military service of the United States without the consent of his parent or guardian, refers alone and exclu- sively to persons enlisted to service in the Army. Elliott v. Harris, 24 App. D. C. 11; 33 W. L. R. 378. The Marine Corps constitutes a part of the naval service of the United States, and is subject to the laws and regulations that govern that arm pf the service. lb, 84 Army and Navy. The words ''other persons,'' in § 1418 R. S. U. S., providing that "other persons (than minors under the age of 18), may be enlisted" to serve in the Navy "for a period not exceeding four years," not only embrace persons enlisted in the Navy, eo nomine, but also persons enlisted in the Marine Corps. lb. An enlistment in the Marine Corps by a minor 19 years of age is valid, although without the consent of his father ; and such minor is not entitled to be discharged from such enlistment upon the application of his father. Ih. The jurisdiction of the court martial to try an officer upon charges preferred against him is not ousted by the action of the officer in suing out a writ of habeas corpus, although the time limited for his trial by the articles of war expires before the determination of the habeas corpus proceedings. Closson v. Armes, 7 App. D. C. 460 ; 24 W. L. R. 71. Where such officer is arrested and detained in close confinement in the nearest military post of the United States, by order of his commanding of- ficer, for an offense committed in the presence of that officer, and formal charges are preferred against him within the prescribed time thereafter, the proceeding is regular, and the officer arrested is not entitled to be released, from confinement upon writ of habeas corpus. lb. A retired officer of the Army, charged with conduct to the prejudice of good order and military discipline, and with conduct unbecoming an officer and a gentleman, may be arrested upon the order of the general of the army, and detained in close confinement to answer the charges pre- ferred, lb. The relative rank of officers of the Army and Navy does not constitute a vested right, nor a matter of contract, but is subject to regulation by legislation of Congress and to the action of the Executive Departments within the scope of their discretion. Edwards v. Root, 22 App. D. C. 419; 31 W. L. R. 679. An Army officer stationed in Utah, but absent from his post under orders, being in Washington on Jan. 5 and Feb. 5, assigned his pay ac- counts for the months of December and January respectively, at those dates, and they were paid by the paymaster at Washington. His pay ac- counts for those months, were paid on Dec. 31 and Jan. 31, to another as- signee by the paymaster in Utah. By § 1440 of the Army Regulations, an officer is forbidden to assign his pay accounts before they become due. In an action by the Government to recover back the money paid the Washington assignee. Held, that the payment not being unlawful the United States had no right of recovery. United States v. Phillips, 5 App. D. C. 38.5; 23 W. L. R. 198. Officers of the Navy are not the agents of the Secretary of the Navy, but of the President of the United States. McGowan v. Moody, 22 App. D. C. 148; 31 W. L. R. 371. As to right of officer of army to mandamus to compel his restoration to lawful rank. See Edwards v. Root, 23 App. D. C. 419; 31 W. L. R. 679. As to right of court to interfere with the construction placed by the Secretary of War on act of Congress relative to reorganization of Army. See lb. As to power of Supreme Court D. C. to grant certiorari to review pro- Arrest — Arrest oi? Judgment. 85 ceedings of board of examination convened under authority of act of Congress of Oct. 1, 1890. See Reaves v. Ainsworth, 28 App. D. C. 157; 34 W. Iv. R. 542. The American naval force at Manita was of a strength superior to that of the Spanish fleet on May 1, 1898. Manila Prize Cases, 188 U. S. 254. See also Admiralty. ARREST. A retired officer of the Army may be arrested on the order of the commanding general and detained in close confinement to answer for an offense against the articles of war. Closson v. Armes, 7 App. D. C. 460 ; 24 W. L. R. 71. Excess or abuse in the mode of detention of an accused person cannot be remedied by writ of habeas corpus, except in a grave and unusual case. lb. Where the warden of the jail releases a prisoner under order of court, he may retake the prisoner of his own motion and hold him rnder war- rant for detention under a sentence of the police court in another case which he held at the time he inadvertently released him ; and it is not necessary that the original warrant from the police court should be re- issued. Leonard v. Rodda, 5 App. D. C. 256; 23 W. L. R. 229. Articles which may supply evidence of the guilt of an accused person, found in his possession or under his control, may be seized by the of- ficers making the arrest and be retained to be used as evidence against the accused, subject to the power and direction of the court having cog- nizance of the crime. Mutual Commission Co. v. Moore, 13 App. D. C. 78 ; 26 W. L. R. 421. As to arrest by private individual of one suspected of the commission of a felony. See Davis v. United States, 16 App. D. C. 442 ; 28 W. L. R. 471. Arrest by private individual as justification for assault with intent to kill. See lb. As to arrest of debtor for fraudulently conveying away property to evade payment of debts. See Costello v. Palmer, 20 App. D. C. 210 ; 30 W. L. R. 402. As to authority of Federal Court sitting in another jurisdiction to issue to marshal of this District a warrant for the arrest and removal of a party found here. Palmer v. Thompson, 20 App. D. C. 273; 30 W. L. R. 483. As to arrest of Chinese for deportation. See Chan Gun v. United States, 9 App. D. C. 290; 24 W. L. R. 764. ARREST OF JUDGMENT. A judgment will not be arrested because of the omission from the declaration in an action to recover damages for personal injuries of the formal conclusion that "therefore he brings his suit." Dis. of Col. v. Baton, 13 App. D. C. 182 ; 26 W. L. R. 530. Where a declaration contains several inconsistent counts and there is no direction by the court that a separate verdict be returned as to each, the fact that the jury returns a verdict upon the entire declaration is 86 Arson — Assault. no ground for arresting the judgment. Mercantile Trust Co. v. Hensey, 27 App. D. C. 210; 34 W. L. R. 206. Discretion of trial court as to allowance of motion for. See Hill v. United States, 23 App. D. C. 395 ; 31 W. L. R. 553. Non-joinder of parties as ground for. See Magruder v. Belt, 7 App. D. C. 303 ; 23 W. L. R. 827. Defect in declaration on promissory note as ground for. See Chandler & Taylor Co. v. Norwood, 14 App. D. C. 357 ; 27 W. L. R. 166. Insufficiency of indictment under § 834 of Code as ground for. See United States v. Drennan, 35 W. L. R. 211. Upon a motion in arrest of judgment the successful party is entitled to every intendment of law in support of the verdict. Schwartz v. Reesch, 2 App. D. C. 440; 22 W. L. R. 210. ARSON. An indictment charging four defendants with unlawfully, wilfully and maliciously setting fire to and burning an untenanted dwelling house, the property of two of them, does not state an offense under § 7, art. 1, vol. 1, Code of Maryland; and defendants arrested in the District of Columbia in extradition proceedings on behalf of the State of Maryland, held enti- tled to their discharge on habeas corpus. In re Bradshaw, 29 W. L. R. 590. A count under § 820, Code D. C, charging an attempt to burn a house, the property of another person, and a count under § 821, charging the defendant with setting fire to and burning certain goods belonging to him with intent to defraud an insurance company, may properly be joined in one indictment, notwithstanding the penalties imposed by the two sec- tions are not the same. Posey v. United States, 26 App. D. C. 302; 34 W. L. R. 565. An indictment charging defendant with an attempt to burn a certain building occupied and used by him in part as a store and in part as a dwelling, which building was the property of another named person, states an offense under § 820, Code D. C. The fact that defendant was occupy- ing the building as a tenant does not take it out of the terms of the statute. lb. ARTICLES OF SEPARATION. See Husband and Wife. ARTICLES OF WAR. See Army and Navy. ASSAULT. An indictment for assault with intent to kill, founded on §§.1144 and 1150, R. S. D. C, is not bad because it charges the attempt to kill to have been feloniously made, the offense charged not being a felony but a mis- demeanor only. Davis v. United States, 16 App. D. C. 442; 28 W. L- R. 471. An indictment for assault with intent to kill, founded on §§ 1144 and 1150, R. S. D. C, need not allege and set forth with what means or in- strument the killing was attempted to be perpetrated ; but it is enough that it charges the making of the assault, coupled with the intent to kill; and the means employed in the attempt are matters of proof. lb. Assessment — Assignment. 87 An express pouch in the care of defendant as messenger was robbed, the lead seal of the company affixed thereto having been removed and a counterfeit seal substituted. Defendant was summoned to the company's office, where he was taken into a private room, the superintendent, a detective and B., who had made the counterfeit seal, being present, and he was identified by B. as the person for whom he had made the seal, and was charged with the theft and called upon to produce the money or tell what he knew about it. He denounced B. as a liar and at once drew a pistol and fired at him several times. No physical violence of any kind was offered defendant. Held, that a felony having admittedly been committed in the robbery of the express pouch, and there being reasonable ground to svispect defendant, he was liable to arrest by a private individual without warrant, and the circumstances of such arrest furnished no justification for the attempt to kill B. lb. Under § 803 of the Code, an indictment need not set forth the means or instrument used unless the killing was attempted by poisoning, drown- ing, etc., in which case the means should be alleged. Coratola v. United States, 24 App. D. C. 229. Incivility in talking, by one woman to another, is not a justification of an assault and battery upon the former by the husband of the latter. Hubbard v. Perlie, 25 App. D. C. 477 ; 33 W. L. R. 482. ASSESSMENT. See Beneficial Associations; Certiorari; Con- demnation OP Land ; Taxation and Assessment. ASSESSOR OF DISTRICT OF COLUMBIA. As to right to withhold tax certificate because war revenue stamp not furnished by applicant. See Hufty v. Trimble, 14 App. D. C. 414; 27 W. L. R. 203. ASSETS. See Estates of Decedents; Partnership. ASSIGNMENT. Assignment of bonds and other specialties is authorized by the act of Maryland of 1763, ch. 23. Myers v. Cottrell, 25 W. L. R. 720. The assignee of a bond secured by mortgage is not required to .resort to the mortgaged real estate before proceeding to enforce the bond. Myers v. Cottrell, 25 W. L. R. 720. As to right of assignee of chose in action to maintain bill in equity to recover his demand. See Glenn v. Sothoron, 4 App. D. C. 125; 22 W. L. R. 649. An assignee suing on a money demand in the name of his assignor to his own use, may make the affidavit to support the declaration. Gordon v. Frazer, 13 App. D. C. 382; 26 W. L. R. 713. In this District, the assignee of a non-negotiable note can maintain an action at law upon it otily in the name of the payee and assignor to his use. Commercial Nat. Bank v. Brewing Co., 16 App. D. C. 186 ; 28 W. L. R. 320. An assignee of a chose in action may sue in equity in his own name, and where his right has accrued during the pendency of a suit which 88 Assignment, has become abated, he may file a bill of revivor in his own name. Young V. Kelly, 3 App. D. C. 296; 22 W. L. R. 313. As to right of foreign assignee of a non-resident defendant to inter- vene in attachment proceedings. See Matthai v. Conway, 2 App. D. C. 45; 22 W. L. R. 39. As to right of assignee of chose in action to sue in own name. See Armstrong Whitworth Co. v. Norton, 15 App. D. C. 223; 27 W. L. R. 414. Where a Ufe-annuitant assigns all her interest in a fund held in trust for her, to those entitled thereto after her death, the remaindermen are vested with an immediate right of action against the trustee for loss oc- curring to the corpus of the fund through his negligence ; and such an assignment is not champertous. Johns v. Herbert, 2 App. D. C. 485 ; 22 W. L. R. 281. A policy of insurance issued by the H. Co. was delivered to the in- sured upon an agreement between himself and the agent, unknown to the company, that the first year's premium should be paid on receipt of cer- tain moneys due insured. The agent, on settlement of his accounts, paid to the company the amount of said premium less his commission, but such payment was without the knowledge or request of insured. The policy lapsed for failure to pay the second year's premium, and thereafter the agent obtained from the company a formal assignment of all its right, title and interest in said first year's premium, and brought suit for its recovery in the name of the company to his use. Held, that the action could not be maintained. Parsons v. John Hancock Life Ins. Co., 20 App. D. C. 263 ; 30 W. L. R. 616. An instrument purporting to be an assignment of an invention for which no patent has issued unaccompanied by a request that the patent issue to the assignee, or of an invention for which no patent has been applied for, or of an incomplete and future invention, is not of itself an assignment and will not transfer any title, but is simply an executory agreement to assign in the future. Blectrolibration Co. v. Sanchc, 25 W. L. R. 87. As to the right of assignee of patent to maintain action in own name for infringement. See Armstrong Whitworth & Co. v. Norton, 15 App. D. C. 223 ; 27 W. L. R. 414. An assignment by a public officer of his salary or fees before due and payable is void as against public policy, and so held as to an agreement between a bank and a notary for the division of fees. Ohio Nat. Bank V. Hopkins, 8 App. D. C. 116 ; 24 W. L. R. 161. An offer or promise by the vendee of real estate to assign to the vendor so much of a claim belonging to him as would amount to double the amount of purchase money due, is, when accepted, an equitable assign- ment of that portion of the claim, although not in writing. Dexter v. Gordon, 11 App. D. C. 60. An agreement between attorney and client for the prosecution of a claim against the United States and making the attorney's fee for ser- vices a lien upon any draft issued in payment of the claim, is not a viola- tion of §§ 3737, 3477, Rev. Stat. Roberts v. Consaul, 34 App. D. C. 551 ; 33 W. L. R. 98. Assign mh;nt. 89 The making of sub-contracts on the part of a Government contractor is not an assignment within the meaning of § 3477, Rev. Stat. Manning v. Bllicott, 9 App. D. C. 71 ; 24 W, L. R. 439. As to assignment of claim against the United States as fee for prose- cuting same. See Owens v. Wilkinson, 20 App. D. C. 51 ; 30 W. L. R. 436. Where, under the provisions of a will, real estate is converted into personalty for distribution among heirs, a deed by one of them, made after the death of testatrix, purporting to convey his interest in the estate, operates as a mere, assignment of his interest as a legatee, and where his legacy has adeemed by reason of advances made in excess thereof during the lifetime of testatrix, the assignee takes nothing. Miller v. Payne, 28 App. D. C. 396; 34 W. L. R. 798. A court of equity will not interpose the fiction of equitable assignment by subrogation on behalf of a mere volunteer or intermeddler. Parsons V. John Hancock Life Ins. Co., 20 App. D. C. 263 ; 30 W. L. R. 616. In a suit to cancel assignments by a party having a claim against the Government of Hayti (the payment of which was being urged by the State Department), of $1,000 of the claim in consideration of the payment by the assignee of $100, it was held, upon a review of the evidence, that even if the consideration be not grossly inadequate in view of the doubtful nature of the claim, and if the claim itself, being for a personal tort, be not incapable of assignment, yet that the contract was clearly cham- pertous and therefore null and void ; but to entitle the assignor to be re- lieved in equity from the assignments, he must pay the assignee the amount of his indebtedness to him. Campbell v. Dexter, 17 App. D. C. 454; 29 W. L. R. 61. As to priority of assignments of interest in a fund made by partners prior to dissolution of partnership, over an assignment of the same fund executed by one of the partners in the name of the firm subsequent to dissolution. See Wagenhurst v. Wineland, 20 App. D. C. 85; 30 W. L. R. 405. As to priority of assignee of judgment creditor over attaching creditor of judgment debtor where judgment entered and attachment served on day of rendition of verdict. See Hutchinson v. Brown, 8 App. D. C. 157; 24 W. L. R. 219. Notice to defendant in a judgment, of the assignment thereof, is not necessary to perfect the assignee's right. lb. While a claim for damages for personal injuries may not be assign- able, such an assignment might be given effect in equity as one of a possibility or expectancy, capable of enforcement as an assignment of a charge upon a subsequent judgment on such claim, or the proceeds thereof. lb. Assignees in bankruptcy or insolvency, statutory assignees generally^ statutory receivers and receivers in equity, do not derive their rights and powers from the assignor, but from the statute, and are not restricted to the rights that were in the assignor at the time of the assignment, but are armed with those of the creditors as well." Colbert v. Baetjcr, 4 App. D. C. 416; 22 W. L. R. 763. A party setting up and relying upon the application of the principle of go Assignment, innocent purchaser for value without notice, whether as ground for rfi- Hef or as matter of defense, must state in his pleading the deed or assign- ment under which he claims, the date, and parties thereto ; that the ven- dor or assignor was entitled and rightfully conveyed or assigned; must state the consideration, with a distinct averment that it was bona fide and truly paid independently of the recital in the deed or assignment; must deny notice prior to and down to the time of paying the money and de- livery of the deed or assignment; and the circumstances of the transac- tion must be fully and fairly stated. Wagenhurst v. Wineland, 20 App. D. C. 85; 30 W. L. R. 405. As to rights of assignee of half interest in contract on abandonment of contract by his assignor. See Boogher v. Weaver, 12 App, D. C. 477; 26 W. L. R. 297. As to what constitutes fixtures which pass by assignment of leasehold. See Towson v. Smith, 13 App. D. C. 48 ; 26 W. L. R. 392. Parol evidence is not admissible to establish an exception or reserva- tion of fixtures on premises from the operation of a deed of assignment of a leasehold thereof. Ih. As to enforcement in equity of assignment of part of debt. See Wash- ington Brewery Co. v. Cosgrove, 34 W. L. R. 132. Effect on assignee of purchaser at tax sale of failure of authorities to assess property in the name of the real owner. Kaim v. King, 25 App. D. C. 182; 33 W. L. R. 147. A mortgage securing a negotiable note is an incident of the debt, and passes with its assignment. Brewer v. Slater, 18 App. D. C. 48 ; 29 W. -/L. R. 259. As to assignnjent of interest in chose in action. See Sincell v. Davis, 24 App. D. C. 218 ; 32 W. L. R. 746. As to rights of assignee of lease. See McFarlane v. Kirby, 28 App. D. C. 391; 35 W. L. R. 23. As to right to proceeds of insurance taken out by a voluntary assignee of a mortgagor who has failed to perform the covenant in the mortgage as to insurance. See American Ice Co., v. Eastern T. & B. Co., 188 U. S. 626; 31 W. L. R. 164. Of policy of insurance to trustee under deed of trust. See Brown v. Commercial Fire Ins. Co., 21 App. D. C. 325 ; 31 W. L. R. 206. The assignee of the surety in a bond given by the charterers of a ves- sel to indemnify the owners against claims for supplies, has no lien for supplies furnished the vessel. Post Steamboat Co. v. Loughran, 12 App. D. C. 430; 26 W. L. R. 405. An order by a debtor to his creditor upon person owing him money or holding funds belonging to him, directing such person to pay the creditor out of such money, creates an equitable assignment. Nat. Bank of Republic v. Life Ins. Co., 17 App. D. C. 112 ; 28 W. L. R. 847. Notice of assignment should be given by assignee to the holder of such fund, without unreasonable delay, in order to perfect assignment and pro- tect his rights thereunder. lb. A power of attorney given "by a contractor with the District of Co- lumbia, to the president of a bank loaning him money to perform his con- tract, authorizing him to demand, etc., all moneys, etc., due or to be- ' AsSIGNMllNT FOR BenIiI'IT OF CREDITORS. 9I come due under the contract, held to embrace the 10 per. cent, of contract price retained for repairs. lb. The fihng of such power of attorney with the District Commissioners and its transmission by them to the Treasury Department, held notice of fact of assignment and assignee held entitled in preference to a party whose assignment was subsequently obtained and recorded. lb. See also Claims Against the United States; Liens; Mortgages and Deeds of Trust; Patents. ASSIGNMENT FOR BENEFIT OF CREDITORS. I. What Amounts to. II. Law Governing. III. Validity of. IV. Preferences in. V. Assignee's Title, Powers, Rights, Etc. VI. Generally. I. What Amounts To. An absolute conveyance of property directly to a creditor in payment and discharge of a pre-existing debt or liability, as the consideration therefor, is not an assignment for the benefit of creditors within the meaning of the act of Congress of Feb. 24, 1893, although such convey- ance may have the effect of giving a preference to such creditor. Droop V. Ridenour, 11 App. D. C. 224 ; 2.5 W. L. R. 481. An assignment of a fund by a debtor to a creditor with directions to the assignee, after paying himself the amount due him, to distribute the residue pro rata among certain named creditors, passes the legal title to the fund and creates a trust for the creditors named even though they had at time no knowledge of the assignment and did not assent thereto; and the residue of the fund in the hands of the assignee is not liable to the claim of an attaching creditor of the assignee. Smith v. Herrell, 11 App. D. C. 425; 25 W. L. R. 822. II. Law Governing. A foreign assignment executed by a corporation having its assets and place of business in the District will be interpreted and governed by the laws of the District. Kansas City Packing Co. v. Hoover, 1 App. D. C. 268; 31 W. L. R. 710. An assignment made by a resident of the District in a foreign jurisdic- tion, which is valid where made but invalid here, will be set aside upon the application of creditors, whether resident or non-resident. lb. Where an assignment for the benefit of creditors executed in the Dis- trict of Columbia purports to convey an estate in land situated in Mary- land, and prior to the filing of the bond by the assignee required by the laws of that State, one of the creditors has obtained in the courts of that State a judgment in attachment against the property there situated, the courts of the District will not at the suit of other creditors enjoin such judgment creditor from proceeding to execute his judgment nor to com- pel him to bring the proceeds of the execution into the courts of the District for distribution among all the creditors, on the ground that by previously accepting the provisions of the deed of assignment he was 92 Assignment for Benefit of Creditors. • estopped to deny its sufficiency as a conveyance of the land. Keane v. Chamberlain, 14 App. D. C. 84; 27 W. L. R. 98. The transmission of title to real property by an assignment for the benefit of creditors depends upon the laws of the State wherein the property is situated. lb. In the case of an assignment for the benefit of creditors executed in the District of Columbia and purporting to convey an estate in lands in Mary- land no title whatever will vest in the assignee in the event of his fail- ure to give bond required by the laws of Maryland ; and a lien acquired by attaching creditors after the date of the assignment is not affected by the subsequent execution and approval of the bond. lb. Under the laws of Maryland regulating assignments for the benefit of creditors, the property passing to the assignee is restricted to that par- ticularly described in the schedules accompanying the assignment; and where such an assignment executed in this District purports in the schedule to convey a life estate in certain lands in Maryland, the assignee will take only such life estate, although the assignment purported to con- vey all the assignor's property, and his life estate was coupled with a power of alienation in fee by deed or will. lb. III. Validity of. An assignment purporting to be made for the benefit of such creditors as might within 30 days accede to its provisions, but which contained no provision for notice to creditors, and provided that the surplus proceeds of sale of the property should, after satisfying the acceding creditors, be paid to assignor and that the assignee should have power to continue the business and sell the property upon credit and be exempt from lia- bility for the default or misdoings of any agent or employe, except the same should arise through his own wilful default or neglect, is in effect one to hinder and delay creditors and therefore void as against them. Kansas City Packing Co. v. Hoover, 1 App. D. C. 268 ; 21 W. L. R. 707. Both fraud in fact and fraud in law renders an assignment void as against creditors. Ctssell v. Johnston, 4 App. D. C. 335; 22 W." L. R- 730. An assignment is not avoided by a provision reserving the surplus of assets for the benefit of the assignors, where all creditors are to share equally. lb. Under the act of Feb. 24, 1893, a provision in an assignment limiting its benefit to such creditors only as should release their demands if not paid in full, would not defeat the assignment or render it void, but all the creditors would share equally in the assets of the estate. lb. Where the apparent effect of an assignment is to hinder or delay creditors beyond the necessary delay incident to all valid assignments it is void as to all such creditors, irrespective of the assignor's intent. Kansas City Packing Co. v. Hoover, 1 App. D. C. 268 ; 21 W. L. R. 707. IV. Preferences in. The act of Feb. 24, 1893, relative to voluntary assignments for the benefit of creditors, and making void any preferences therein, does not apply to the case of a confession of judgment by an insolvent debtor in Assignment for Benefit oe Creditors. 93 favor of a bona-fide creditor, notwithstanding the effect of such confession of judgment may be to give such creditor a preference over others. Strasburger v. Dodge, 12 App. D. C. 37 ; 26 W. L. R. 9. The act of Feb. 24, 1893, did not operate to aboH'sh the common law right to prefer creditors, but only the right to make such preferences as a feature merely of an assignment. lb. V. Assignee's Title, Powers, Rights, Etc. Neither the assignee nor the creditors represented are purchasers for a valuable consideration, without notice, as against prior equitable claims ; and the assignee takes no better title and no higher rights than the as- signor had at the time of the assignment. Colbert v. Baetjer, 4 App. D. C. 416; 33 W. L. R. 763. A provision in an assignment that assignee may ask, demand, sue for, levy and recover all sums of money due, give acquittances or other sufficient discharges In law therefor, make such compromises as he may deem beneficial to his trust, etc., cannot be construed as giving the assignee power to make compromises with creditors of the assignor as well as with those indebted to him, and thus invalidate the assignment. National Bank of Republic v. Hodge, 3 App. D. C. 140 ; 23 W. L. R. 399. The provision in an assignment that the assignee shall, as soon as convenient, sell and dispose of the goods, etc., does not affect its validity ; nor does a provision allowing the assignee to employ attorneys for the collection of debts and allow them a reasonable fee out of the proceeds of sale. 76. An assignee bears the relation of representative to his assignor and can occupy no better position as to the assigned property than did the assignor. Eastern Trust & Banking Go. v. American Ice Co., 14 App. D. C. 304; 27 W. L. R. 182. Where in a deed of trust of real estate securing an issue of bonds, the mortgagor covenants to keep the property insured in an amount to rea- sonably protect all insurable property, payable in case of loss to the trustee as its interest might appear, who in such case might apply the insurance money in renewing or adding to the property destroyed or in- jured, or place it in a sinking fund for redemption of the bonds, the covenant runs with the land ; and an assignee under a deed of assign- ment by the mortgagor for the benefit of creditors takes the property subject to that charge. lb. An assignee under a deed of assignment by the mortgagor of all his property for the benefit of creditors is entitled to the rents and profits of real property the subject of a deed of trust to secure certain obligations of the assignor until the trustee named therein takes actual possession of the property as provided for in the deed of trust. lb. And where the assignee obtains insurance on the mortgaged premises, paying the premiums therefor with assets of his assignor, the holders of the bonds will be entitled to priority in the application of the proceeds of the policies, although the same were taken out by the assignee for the benefit of all the creditors. VI. Generally. The right given a creditor by the act of Feb. 24, 1893, to attack an 94 Assignment of Error — Assumpsit. assignment in an equity proceeding without first reducing his claim to judgment, is cumulative and not exclusive. Cissell v. Johnston, i App. D. C. 335; 22 W. L. R. 730. As to whether § 3 of the act of Feb. 24, 1893, giving creditors the right to proceed in equity without first reducing their claims to judgment, is within the power of Congress to enact. See Strashurger v. Dodge, 12 App. D. C. 37; 26 W. L. R. 9. A foreign assignment will not be enforced in this District when against the local public policy. Kansas City Packing Co. v. Hoover, 1 App. D. C. 268; 21 W. L. R. 710. In construing a deed of assignment all its parts are to be considered, if possible, in arriving at its general intention; and where two construc- tions are possible, that in favor of its validity will be adopted. Cissell V. Johnston, 4 App. D. C. 335 ; 22 W. L. R. 730. Where an assignment is made by a partnership, contemporaneous deeds of two of the copartners conveying their individual real estate to the assignee will be read in connection with the assignment to determine whether, or not they intended to include their individual property as well as that of the firm. lb. As to effect of want of acknowledgment for record, and record, of a deed of trust, on validity thereof as against the grantor's assignees for the benefit of creditors. See Eastern Trust, Etc. Co. v. Willis, 6 App. D. C. 375 ; 23 W. L. R. 417 ; Colbert v. Baetjer, 4 App. D. C. 416 ; 22 W. L. R. 763. ASSIGNMENT OF ERROR. See Appeal and Error. ASSIGNMENT OF JUSTICES. See Courts. ASSUMPSIT. Assumpsit for money had and received is the proper action to recover back from a municipality money unlawfully exacted as a license tax. Clcland V. Dis. of Col, 35 W. L. R. 278. An action of assumpsit will not lie upon a sealed obligation for the payment of money or performance of a duty. Brown v. Commercial Fire Ins. Co., 21 App. D. C. 325 ; 31 W. L. R. 206. Assumpsit will not lie upon a sealed obligation ; and so where a con- tract declared upon as a simple contract is, when produced in evidence, shown to be under seal, it is the duty of the court to either direct a verdict for defendant, or withdraw a juror if so requested by plaintiff. Magruder v. Belt, 7 App. D. C. 303 ; 23 W. L. R. 827. In an action for money had and received, the jury are properly instruct- ed that if they find that defendant received a note, the property of the plaintiff, to collect on her account, and that he did collect it, then the de- fendant was in equity and good conscience under an obligation to pay over the proceeds of such note to the plaintiff. Harr v. Roome, 28 App. D. C. 214 ; 34 W. L. R. 709. Where parties of the one part to a contract for exchange of lands, by means of false and fraudulent representations induce the other party to assume and pay off an incumbrance on their lands, representing the title to certain other lands transferred to him by them in consideration of Assumption of Mortgage; Debt — Attachment. 95 such payment to be good and valid, whereas it was false and fictitious, an action upon an implied assumpsit will lie to recover back the amount paid. Main v. Aukam, 12 App. D. C. 375; 26 W. L- R. 339. To such action a party having a legal interest in the incumbered prop- erty, and who, though not having signed the contract of exchange, has by his actions made himself a party thereto, is properly joined as a de- fendant. Ih. Where a person in debt to another, by any contrivance or device causes a third person to pay it, an action upon an implied assumpsit will he against him to recover back the amount; and the machinery or device by which the payment was procured or brought about is wholly imma- terial, lb. Under the common counts in assumpsit and a plea of the general issue plaintiff may prove both a special contract and a quantum meruit. Burke V. Claughton, 12 App. D. C. 182 ; 26 W. L. R. 331. Necessity of alleging promise to pay in declaration in • assumpsit. Potomac Laundry Co. v. Miller, 26 App. D. C. 230; 33 W. L. R. 773. The use of its seal by a corporation in indorsing a note does not af- fect the right to bring an action of assumpsit thereon. Clark v. Reed, 12 App. D. C. 343 ; 26 W. L. R. 183. An administrator whose intestate's goods have been wrongfully con- verted may waive the tort and sue the convertor in assumpsit upon an implied contract. Heyman v. Thomas, 32 W. L. R. 792. A plaintiff in an action of assumpsit may take a voluntary non-suit, after filing a plea of set-off, but not so as to prevent the prosecution of the plea. Samaha v. Somalia, 18 App. D. C. 9; 29 W. L. R. 176. ASSUMPTION OF MORTGAGE DEBT. See Mortgages and Deeds OF Trust; Subrogation. ASSUMPTION OF RISK. Where an employee undertakes and continues the use of defective and unsafe appliances with actual knowledge, or where same is open to or- dinary observation, he assumes the risk, Butler v. Fra::cc, 25 App. D. C. 393; 33 W. L. R. 387. As to assumption of risk by one using free pass issued by railroad. See Boering v. Ches. Beach Ry. Co., 30 App. D. C. 500; 30 W. L. R. 742. Assumption of risk by passenger riding on the platform, step or foot- board of a car. See Harbison v. Met. R. R. Co., 9 App. D. C. 60; 24 W. L. R. 438; Capital Traction Co. v. Brown, 29 App. D. C. 473; 35 W. L. R. 306. See also Master and Servant. ATTACHMENT AND GARNISHMENT. I. Object of Writ. II. Who Liable to. III. What subject to. IV. Affidavits in support. V. Bonds. VI. Intervention. VII, Pripritifs, g6 Attachment and Garnishmbnt. VIII. Generally. IX. Garnishment. I. Object of Writ. The object of .the writ of attachment is not so much to compel de- fendant's appearance as it is to give plaintiff security for his demand. Construing §§ 783-786, R. S. D. C. Robinson v. Morrison, 2 App. D. C. 105 ; 22 W. L. R. 35. II Who Liable to. A corporation organized under the laws of a foreign jurisdiction, but exclusively engaged in business in this District, for which purpose it was solely organized, is a non-resident and subject to attachment as such. Barbour z: Paige Hotel Co., 2 App. D. C. 174; 22 W. L. R. 33. Where a party having obligations about to mature, leaves the jurisdic- tion without making provision for them, and inquiry fails to elicit in- formation as to his whereabouts, or when, if ever, he would return, a creditor is justified in assuming that he has absconded, and in suing out a writ of attachment to protect his interests. Wilkins & Co. v. Hillman, 8 App. D. C. 469 ; 24 W. L. R. 300. A member of Congress attending upon its sessions is a non-resident of the District of Columbia within the meaning of the attachment laws. Howard z: Citizens- B. & T. Co., 12 App. D. C. 222 ; 26 W. L. R. 101. Where one of four defendants in a suit before a justice of the peace, being a non-resident, was not served with process, and the other three obtained the removal of the case into the Supreme Court of the District on certiorari an attachment issued by the latter court and levied upon the real estate of such defendant will not be quashed. Bradford v. Broism, 31 W. L. R. 696. A man's residence is where he dwells at the time, not merely where he may carrjr on business regularly ; and the attachment law of • the District cannot be construed as giving one doing business in the District, but living with his family in another jurisdiction, an exemption from attachment. Robinson v. Morrison, 2 App. D. C. 105 ; 22 W. L. R. 35. III. What Subject to. An attachment will lie against chattels which are subject to a deed of trust in favor of the plaintiff in attachment. The Richmond v. Cake. 1 App. D. C. 447; 21 W. L. R. 819. A fund in the hands of a creditor, as assignee of his debtor, for dis- tribution among other creditors, is not liable to the claim of an attaching creditor of such assignee. Smith v. Hcrrell, 11 App. D. C. 425 ; 25 W. L. R. 822. IV. Affidavits in Support of. Affidavits supporting an attachment may be made before a notary pub- lic in another jurisdiction. Hozvard v. Citizens' B. & T. Co., 12 App. D. C. 222; 26 W. L. R. 101. An affidavit to support an attachment issued to enforce -a landlord's lien against his tenant's chattels, need not affirmatively show that the chattels are not exempt from seizure, and it is sufficient if it states that Attachment and Garnishment. 97 they are subject to the lien. The Richmond v. Cake, 1 App. D. C. 447; 21 W. L. R. 819. As to sufficiency of affidavits to support an attachment. See Matthai V. Conway, 2 App. D. C. 45; 22 W. L. R. 39. If a declaration shows with precision what the plaintiiif's claim is, it is unnecessary to repeat it in an affidavit to support an attachment issued in the suit, with all the detail of a pleading. lb. The affidavit of the witness required by § 782, R. S. D. C, need not state in terms that affiant has personal knowledge of the facts stated, where his statement is so direct and positive as to imply personal knowl- edge. Wielar v. Garner, 4 App. D. C. 329; 22 W. L. R. 729. Where the ground of an attachment is the removal of defendant and secretion of his property with intent to defraud creditors, the supporting affidavit need not state the quantity of goods or place of concealment. lb. An affidavit in support of an attachment is sufficient which states the ultimate fact substantially in its terms, without stating in connection there- with the probative facts which may be necessary to be shown in case of traverse; and the same rule applies to the allegation of the intent with which the act may have been done. Construing § 782, R. S. D. C. lb. An affidavit in support of an attachment, in which plaintiff's attorney states that an assignment for the benefit of creditors made by defendant was illegal and fraudulent, is sufficient. Cissell v. Johnston, 4 App. D. C. 335; 22 W. L. R. 730. An affi.davit in support of an attachment is not insufficient because made before the clerk of the court. Nat. Wall Paper Co. v. Holler & Richards Co., 24 W. L. R. 650. An affidavit in support of an attachment is not invalidated by the fact that, though purporting by its caption to have been made in another jurisdiction, was in fact made before the clerk of the court in this Dis- trict; nor by the fact that when the clerk administered the oath he merely signed his name to the certificate without adding the title of his office, but subsequently added the words, "The foregoing affidavit was made before me in the city of Washington, D. C, July 8, 1896, before the filing of the case'' and signed his name with title of office. lb. Testimony to explain the circumstances connected with the making of an affidavit may be considered. lb. V. Bonds. An attachment bond is properly made to one of several co-defendants against whose property an attachment before judgment is issued on the ground that he is a non-resident. Bradford v. Brown, 31 W. L. R. 696. VI. Intervention. The foreign assignee of a non-resident defendant in attachment may intervene therein to protect his rights, but his petition for intervention should set out the deed of assignment under which he claims, that the court may determine whether, upon its face, it is valid in the District as against attaching creditors. Matthai v. Conway, 2 App. D. C. 45; 22 W. L. R. 39. 98 Attachment and Garnishment. As to right of foreign receiver of property to intervene in attachment suit in this District. See Jenkins v. Purcdl, 29 App. D. C. 209 ; 35 W. L. R. 222. Any one claiming title or an interest in property that has been at- tached may intervene in the cause and controvert the truth of the grounds of the attachment set up in the plaintiff's affidavit. Daniel v. Solomon, 11 App. D. C. 163; 25 W. L. R. 436. The issue of a writ of execution and its delivery to the constable for levy will be taken as the equivalent of an actual levy where the property of the defendant in attachment has at the time been seized by the marshal under a writ of attachment; and will give to the judgment creditor such an interest in the attached property as to entitle him to intervene in the cause and contest the truth of the grounds alleged by the plaintiff for the attachment. lb. In such case, the petition of intervention should allege that defendant has no other property to which the interveners may resort in satisfaction of their judgment; but the omission of such an allegation will not sup- port a judgment dismissing the petition where such judgment is other- wise erroneous and the omission was not taken advantage of by demurrer to the petition. lb. On the trial of the issue raised by petition of intervention as to the truth of the grounds of attachment, the burden is upon the plaintiffs in the attachment to prove the existence of facts which justify the attach- ment, and it is error to require the interveners to assume the burden of proving that the grounds of the attachment were untrue. lb. Where the petition of intervention charges collusion between the plain- tiff and defendant in the attachment, that issue is separable from the other, and the burden of proving such collusion is upon the intervenors; though if the facts warranting the attachment be not proved it should he quashed without regard to the question of collusion. lb. VII. Priorities. As to priority under laws of Maryland of attachment lien acquired prior to the filing of bond by an assignee for the benefit of creditors. See Keane v. Chamberlain, 14 App. D. C. 84; 27 W. L. R. 98. As to priority of assignee of judgment creditor over attaching creditor of judgment debtor where judgment entered and attachment served on day of rendition of verdict. See Hutchinson v. Brown, 8 App. D. C. 157; 24 W. L. R. 219. VIII. Generally. Attachment of the person for contempt of court. See Tolman v. Leon- ard, 6 App. D. C. 224 ; 23 W. L. R. 343. As to review of order granting or refusing motion to quash writ based upon oral testimony taken before the trial justice at chambers. See Wilkins & Co. V. Hillman, 8 App. D. C. 469 ; 24 W. L. R. 300. The right of a plaintiff in attachment to condemnation of property seized cannot be affected by any proceedings, to which he is not a party, and which have for their object the taking of the property from the Attestation — Attorneys. 99 custody of the marshal. Robinson v. Morrison, 2 App. D. C. 105 ; 32 W. L. R. 35. Upon the hearing of a motion to quash a writ of attachment, either party has a right to demand that the witnesses be examined orally before the court. lb. IX. Garnishment. Property deposited by a defendant in a safe deposit box of a trust company is the defendant's property and the trust company is liable to be garnisheed therefor and must answer interrogatories as to whether or not it has a safe deposit box standing in the name of the defendant. Wash. Loan & T. Co. v. Susquehanna Coal Co., 26 App. D. C. 149; 33 W. L. R. 738. Section 473, Code D. C, providing that in proceedings by attachment and garnishment, where the judgment is in favor of the garnishee, he shall be allowed a reasonable counsel fee, held vahd. Morimura v. Sainaha, 25 App. D. C. 189 ; 33 W. L. R. 258. What is a reasonable fee in a particular case is a matter within the discretion of the court, and its exercise of that discretion will not be reviewed except where palpably abused. lb. A garnishee in default in answering interrogatories served upon him with a writ of attachment of garnishment, may answer the interrogatories at any time before any proceedings are had to enforce his default ; and leave of court is not necessary to enable him to do so. Banville v. Sulii- Tan, 11 App. D. C. 23 ; 25 W. L. R. 345. The rule prescribing a limit of ten days within which the interrogatories are to be answered, and providing that in the event of the failure of the garnishee to answer judgment may be entered against him, is merely au- thoritative, and not imperative, except at the option of the party seeking the exercise of the authority and entitled to have it exercised in his favor. lb. Money in the hands of a municipality due a contractor is not subject to equitable garnishment by a creditor of the contractor. Columbia Brick Co. V. Dis. of Col., 1 App. D. C. 351 ; 21 W. L. R. 739. As to whether §§ 709, 710, R. S. D. C, are repealed by the Mechanics' Lien Law of 1884. See lb. As to liability of executor or administrator. See Graham v. Fitch, 13 App. D. C. 569; 27 W. L. R. 42. ATTESTATION. See Wills. ATTORNEYS. I. Relation to Client. IT. Contracts for Fees, Etc. III. Fees Generally. IV. Authority. V. Disbarment. VI. Generally. I. Relation to Client. The negligence of an attorney in prosecuting an action is attributed to the client. Hopp v. Pickford, 35 W. L. R. 436. loo Attorneys. Notice of attorney as notice to client. See Security Invest. Co. v. Gar- rett, 3 App. D. C. 69; 22 W. L. R. 268. The knowledge of an attorney held to bind his client. Patten v. War- ner, 11 App. D. C. 149; 25 W. L. R. 448. An attorney is not bound by his obligation not to divulge communica- tions made to him by his client when the client or his representative charges him, either directly or indirectly, with fraud or other improper or unprofessional conduct. Olmstead v. Wehh, 5 App. D. C. 38 ; 22 W. L. R. 801. Instructions given by a testator to his attorney in the preparation of his will are not ordinarily privileged communications, when the will subsequently comes into controversy. Olmstead v. Webb, 5 App. D. C. 38; 22 W. L. R. 801. The relation of debtor and creditor arises between a party and an at- torney employed by him to conduct his defense to a suit, at the time his services are contracted for, and such status, from that time, is not affected by the fact that the amount of compensation is not ascertained and agreed upon. Smith v. Cook, 10 App. D. C. 487; 25 W. L. R. 251. Effect of mistake of attorney in pleading to an information which had been withdrawn, on defendant's right to discharge on trial of a second information charging substantially the same offense. Holden v. United States, 24 App. D. C. 318 ; 33 W. L. R. 34. II. Contracts for Fees, Etc. A contract between an attorney and client, made at the time of the institution of the suit, by which the former is to receive for his services one-fourth of whatever might be recovered therein, constitutes a valid lien upon the judgment, which attaches immediately upon the rendition of the judgment, and is superior to all other liens. Hutchinson v. Worth- ington, 7 App. D. C. 548; 24 W. L. R. 97. That the judgment recovered was assigned by the plaintiff to a third person, to whose use he caused it to be entered, subject to the claim of the attorney, who acquiesced in the assignment and relied upon the con- tract of the assignee to pay his fee first out of the proceeds of the judgment, and took no action on his own behalf at the time, does not constitute a waiver of the lien acquired by the contract. lb. An agreement by an attorney to prosecute at his own expense a suit to recover land in which he personally has and claims no title or interest, present or contingent, in consideration of receiving a certain proportion of what he may recover, is contrary to public policy, unlawful and void. Peck V. Heurich, 167 U. S. 624; 25 W. L. R. 595. An agreement between attorney and client providing that the former should have a lien for his fee upon whatever real estate might be re- covered in three suits in which the title was involved, should be liberally construed and the lien held to attach to whatever property the title of which should be vested in the client as the result of the litigation. Wil- loughby V. Mackall, 5 App. D.- C. 162 ; 23 W. L. R. 54. Where upon the hearing of a demurrer to a suit brought upon a con- tract for fees, the court is called upon to construe the contract, such construction should not be strained in favor of the client. The rule , 191: ,, I Attorneys. -^V'/ioi which casts the burden upon the attorney of showing that a contract en- tered into with his chent is a fair and reasonable one apphes in the .enforcement of such contracts and not in their interpretation. Willough- by V. Mackall, 1 App. D. C. 411 ; 21 W. L. R. 748. As to admissibility of evidence in action by attorney on contract for fees executed by the attorney alone. See Burke v. Cloughton, 6 App. D. C. 350; 23 W. L. R. 393. Contract for fees construed. See Whiting v. Davidge, 23 App. D. C. 156; 32 W. Iv. R. 114. Contract within meaning of § 3477, Rev. Stat, prohibiting assignment of claims against government. Jones v. Rutherford, 26 App. D. C. 144 ; 33 W. L. R. 498. As to validity of contract to prosecute a claim against the United States containing an assignment of an interest in the claim as a contingent fee. See Owens v. Wilkinson, 20 App. D. C. 51 ; 30 W. L. R. 436. As to vaHdity of contract for services involving solicitation of legisla- tion. See Ih. Services in procuring legislation by Congress looking to the reference and payment of claims are not the subject of lawful contract. Consaul v. Cummings, 24 App. D. C. 36 ; 33 W. L. R. 470. As to invalidity for champerty of agreement between attorney and client. See Peck v. Heurich, 6 App. D. C.273 ; 23 W. L. R. 289. III. Fees Generally. An attorney at law has a lien on money in his possession collected for his client to secure a reasonable compensation for professional services and disbursements, and may retain enough of the money to pay the gen- eral balance due him for such services or disbursements, although ren- dered in different suits or litigations. Meloy v. Meloy, 24 App. D. C. 239; 33 W. L. R. 714. While the solicitor for some of the parties to a partition suit has a hen for his fees on their distributive shares of the proceeds of sale, he cannot, as trustee appointed to make such sale, retain any portion of the proceeds for the satisfaction of his claims as attorney, but must pay the entire fund into court and then make his claim. Arnold v. Carter, 19 App. D. C. 259; 30 W. L. R. 75. An allowance to attorneys for the receiver of a bankrupt estate denied where they were also attorneys for the petitioning creditors and the ser- vices for which they sought compensation were rendered while their rela- tion as attorneys to the petitioning creditors still subsisted. Matter of Johnston Co., 30 W. L. R. 118. As to right of attorney to participate in fees of partnership earned after his withdrawal therefrom. See Grafton v. Paine, 7 App. D. C. 255 ; 23 W. L. R. 806. As to sufficiency of affidavit of defense in action by attorney to recover on contract for fees. See Heiberger v. Worthington, 23 App. D. C. 565 ; 32 W. L. R. 361. As to sufficiency of affidavit of defense in action by executor of de- ceased attorney to recover fee. See Whiting v. Davidge, 33 App. D. C. 156 ; 33 W. L. R. 114. I02 Attorneys. Validity of § 473, D. C. Code, relative to allowance of counsel fees to garnishee. Morimura v. Samaha, 25 App. D. C. 189 ; 33 W. L. R. 258. As to admissibility of evidence as to value of services in an action by an attorney to recover a contingent fee. See Gilbert v. Fay, 4 App. D. C. 38; 22 W. L. R. 473. Under an agreement between an attorney and his client the attorney held to be entitled to a lien for his fees upon property recovered for his client. Willoughby v. Mackall, 1 App. D. C. 411 ; 21 W. L. R. 748. IV. Authority. The execution of a deed made in pursuance of a contract of sale which has been entered into by the attorney of the grantor without authority from him, is a sufficient ratification of the attorney's acts in the premises. Hadcton v. LeDuc, 10 App. D. C. 379; 25 W. L. R. 280. As to effect of lack of authority from client to counsel to plead to an information. See Holden v. United States, 24 App. D. C. 318; 33 W. L. R. 34. An affidavit in support of a declaration is not objectionable because made by the attorney for plaintiff. Harris v. Leonhardt, 2 App. D. C. 318; 22 W. L. R. 107. V. Disbarment. An attorney is disbarred, not by way of punishment, but the court in such cases exercises its discretion as to whether he is a proper person to be continued on its roll as an attorney. In re Adriaans, 17 App. D. C. 39 ; 28 W. L. R. 679. An attorney has no right to asperse and defame the character and con- duct of fellow-members of the bar, and especially is he without warrant to make the court records vehicles of malicious slander and libel of a member. lb. An attorney disbaVred for falsely charging in a motion in arrest of judgment filed in police court that the prosecuting attorney was selling the power of his office to pay a debt due the prosecuting witness. lb. Under § 487, Rev. Stat., the entire cognizance of cases of malpractice occurring before his bureau is remitted to the Commissioner of Patents, subject only to the approval or disapproval of his action by the Secretary of the fnterior. Wedderburn v. Bliss, 12 App. D. C. 485; 26 W. L. R. 293. Under § 487, Rev. Stat., the supervisory power of the Secretary of the Interior over the action of the Commissioner of Patents is no more than an executive or administrative proceeding, and means simply that the judgment of the Commissioner is not to be carried into effect until passed upon by the Secretary and not that the latter is to try or hear the cause or sit as an appellate tribunal before which it would be proper for a party who has had a full hearing before the Commissioner to demand and be accorded another hearing. lb. Section 487, Rev. Stat., is not repealed by the act of July 4, 1884, and the hearing provided by the latter act to be given persons charged with malpractice before the Patent Office is that provided for by § 487. lb. Attorney in Pact — Auditor op CoyRT. iO^ VI. Generally. As to the right of one acting as president of a bank to employ counsel to represent the bank in litigation. See Russell v. Washington Savings Bank, 33 App. D. C. 398; 32 W. L. R. 278. Duty of counsel to inform court and opposing counsel of grounds of objections to evidence. Holtzman v. Capital Construction Co., 33 W. L- R. 531. Competency to testify as to pedigree. See Scott v. Herrell, 27 App. D. C. 395; 34 W. L. R. 401. As to duty of counsel in criminal case to call attention of court to errors. See Price v. United States, 14 App. D. C. 391 ; 27 W. L. R. 320. Oversight of counsel does not excuse failure to take steps to vacate a judgment. Virginia Ins. Co. v. Bohnke, 4 App. D. C. 371 ; 22 W. L. R. 750. Qualification as witness in respect of communications made to. See Patten v. Glover, 1 App. D. C. 466 ; 21 W. L. R. 794. See also Patents ; Privileged Communications. ATTORNEY IN FACT. See Power op Attorney. ATTORNEY FOR THE DISTRICT OF COLUMBIA. As to vahdity of information filed by a special assistant attorney. See Lasley v. Dis. of Col., 14 App. D. C. 407 ; 27 W. L. R. 324, ATTORNMENT. See Ejectment. AUCTIONEERS. So much of § 21 of the act of the Legislative Assembly of this District of Aug. 23, 1871, as attempts to fix the cliarges of auctioneers on sales of real estate at public auction is void as being beyond the power of the assembly to enact. Smith v. Olcott, 19 App. D. C. 61 ; 29 W. L. R. 766. As to charging fees of auctioneer, making sale of real estate, on pro- ceeds of sale. lb. As to duty of trustees under deed of trust relative to fees of auction- eers ; and practice in respect of such fees condemned. lb. AUDITOR OF COURT. A reference to the auditor is not a matter of right, but is within the discretion of the trial court. Bohrcr v. Otterback, 3 ^pp. D. C. 78 ; 33 W. L. R. 54. In a proceeding to foreclose a mortgage it is discretionary with the court whether or not to refer the case to the auditor to ascertain the amount due. Smith v. Gilmorc, 7 App. D. C. 192; 33 W. L. R. 717; Taylor v. Girard Life Ins. Co., 1 App. D. C. 309 ; 21 W. L. R. 633. The reference of a cause to the auditor for the taking of an account is a matter of discretion with the court; and should not be directed where, on the hearing, the court can ascertain from the evidence the net amount of a fund and the rule of its distribution. United States v. Groome, 13 App. D. C. 460 ; 36 W. L. R. 803. An action by a surety on the bond of a building contractor, who had been compelled to complete buildings on default of the contractor, to re- 104 Authentication of Documents — Bailment. cover from his co-surety, under an agreement to hold plaintiff harmless, the amount of his loss, was properly referred to the auditor under common law rule 46, to state an account between plaintiff and the con- tractor ; and the propriety of such reference was not affected by the fact that there were issues in the case entirely independent of the accounting. Simmons v. Morrison, 13 App. D. C. 161 ; 26 W. L. R. 434. Common law rule 46 of the Supreme Court of the District is not in violation of the provision of the Constitution relative to trial by jury. lb. When objection should be made to imperfections in the audit or scope of reference. American Ice Co. v. Eastern Trust & B. Co., 17 App. D. C. 423; 29 W. L. R. 55. As to sufficiency of exception to report of. See Richardson v. Van Auken, 5 App. D. C. 209; 23 W. L. R. 102. A party filing exceptions to a report of the auditor may withdraw them, even though other parties may find it to their advantage to have them retained. Gilbert v. Wash. Ben. Endowment Assn., 21 App. D. C. 344; 31 W. L. R. 190. See also Brown v. Ins. Co., 21 App. D. C. 325 ; 31 W. L. R. 206. As to presumption of correctness of findings of auditor concurred in by court below See Hut chins v. Munn, 28 App. D. C. 271; 34 W. L. R. 704; Consaul V. Cummings, 24 App. D. C. 36; 32 W. L. R. 470. The findings of the auditor of the court, depending upon the weighing of conflicting evidence, have every reasonable presumption in their favor, and are not to be set aside unless mistake or error therein be made clearly to appear. France v. Coleman, 35 W. L. R. 193; Smith v. American B. & T. Co., 12 App. D. C. 192; 26 W. L. R. 199. As to sufficiency of proof to establish debts allowed for to a receiver in stating his account. See Cake v. Woodbury, 3 App. D. C. 60 ; 22 W L. R. 236. AUTHENTICATION OF DOCUMENTS. The method of authentication prescribed by the act of 1790, is not ex- clusive of any other which the states may think proper to adopt, Droop V. Ridenour, 11 App. D. C. 224; 25 W. L. R. 482. AUTOMOBILES. See VEHicas. AWARD. See Arbitration and Award. BAIL. One appealing from an order of lower court refusing on habeas corpus to discharge him from custody to which committed for contempt of court is entitled to be admitted to bail during pendency of appeal. In re Moss, 23 App. D. C. 474. Pending an appeal from an order discharging a writ of habeas corpus sued out by a Chinese person whose deportation has been ordered, such person is not entitled to be admitted to bail. Chan Gun v. United States, 9 App. D. C. 290; 24 W. L. R. 764. BAILMENT. As to obligation of bailee for hire to whom house and contents are Bankruptcy. 105 delivered for safekeeping and who is paid expressly for exercise of care in that regard. See Tyler v. Messenger Co., 17 App. D. C. 85 ; 28 W. L. R. 710. Such bailee reheved from showing that goods were not lost or stolen from premises while in its custody where third persons were, by order of the bailor's wife, permitted to enter the house and take goods therefrom, and where loss was not discovered until some time after possession of house and contents were delivered to bailor's housekeeper. lb. An instruction placing burden on bailee to show that loss was not committed by or due to the negligence of its- servants in such case held properly refused. Ih. BANKRUPTCY. A claim for alimony, in arrears or accruing after adjudication, is not a provable debt barred by discharge of bankrupt. Audubon v. Shufeldt, 181 U. S. 575. A discharge in bankruptcy cannot be pleaded in an action on a foreign judgment rendered after such discharge. Karrick v. Wetmore, 25 App. D. C. 415; 33 W. L. R. 435. Under the Bankruptcy Act of 1898, a trustee in bankruptcy takes the title to property of the bankrupt, subject to all equities, liens, or incum- brances, whether created by operation of law or by the bankrupt, which existed against the property in the hands of the bankrupt. Crosby v. Ridout, 27 App. D. C. 481 ; 34 W. L. R. 320. A trustee in bankruptcy appointed by a Federal court in Texas cannot maintain a suit in this District to require the Secretary of the Treasury to pay over to him moneys appropriated to pay judgments of Court of Claims in favor of administratrix of deceased bankrupt who is a resident of and derives her authority from the State of Texas, of which the bank- rupt was also a resident. Bryan v. Curtis, 35 W. L. R. 34. A trustee in bankruptcy appointed in Texas cannot maintain, in this District, a bill against the administrator of the deceased bankrupt, also appointed in that State, to secure possession of the proceeds of a judg- ment recovered by the administrator in the Court of Claims. Bryan v. Curtis, 36 W. L. R. 14. Secured creditors, within the meaning of the Bankruptcy Act of 1898, are those who have in their possession, actually or constructively, some part of the bankrupt's property delivered to them by the bankrupt vol- untarily to secure a debt due by him to them. Matter of Johnston Co., 30 W. L. R. 118. Liens created by local statutes, such as that of a landlord on the goods and chattels of the tenant on the premises, or of a liveryman for the board and keep of animals of the bankrupt in his possession, are not secured debts within the meaning of the bankruptcy act. lb. Where a bankrupt's estate is insufficient to pay the expenses of admin- istration, including therein costs and fees of referee, trustee and counsel, and also to pay in full the claims of the landlord of the bankrupt for rent in arrears, and of a liveryman for the board and keep of animals of the bankrupt in his possession, Held, that the expenses of administration io6 Banks and Banking. should first be paid, and the residue of the estate applied to payment of the claims of the landlord and the liveryman. lb. An allowance to attorneys for the receiver of a bankrupt estate denied where they were also attorneys for the petitioning creditors and the ser- vices for which they sought compensation were rendered while their re- lation as attorneys to the petitioning creditors still subsisted. lb. The Bankruptcy Act of 1898 does not affect the equity jurisdiction of the Supreme Court of the District of Columbia to entertain a suit to establish an equitable lien against the real estate of a bankrupt; and it is the duty of the bankruptcy court to give due effect to a decree declar- ing such lien. Crosby v. Ridout, 27 App, D. C. 481; 34 W. L. R. 320. BANKS AND BANKING. A private sale by a national banking association of shares of its own stock acquired under the permission given by § 5201, Rev. Stat., upon credit, retaining the stock as collateral security, is not in violation of the prohibition in that section of loans by such associations on the secur- ity of shares of their own stock, provided the transaction be in good faith. Brown v. Ohio Nat. Bank, 18 App. 598; 29 W. L. R. 819. The provision of § 41 of the National Bank Act, imposing a tax or charge on the circulating notes of national banks, is not invalid as vio- lative of § 7, Art. I, of the Constitution, in that it originated in the Senate by amendment. Twin City Nat. Bank v. Nebeker, 3 App. D. C. 190 ; 22 W. L. R. 256. A., the holder of a post-dated check, delivered it to the paying-teller of a bank, after business hours, while the teller and other officers of the bank were attending to their duties. The teller promised to pay it when due and enter it as a deposit to A.'s credit, and had A. write his name in the "signature book." The cashier knew shortly thereafter that the check was in the teller's possession and that he received it from A. On the day the check was payable, the drawer had funds in the bank to meet it, but the check was not presented until the close of the day, when, the drawer's account being overdrawn, it was protested for non-payment. In an action by A. to recover of the bank the amount of the check as money had and received to his use, held, that the knowledge of the cashier was a ratification of the teller's act and the bank was liable; that the fact that the drawer had sufficient in bank to meet the check at the opening of the bank on the day it was due was sufficient to make the bank liable, and the fact that before the close of the day his account was overdrawn was immaterial. Second Nat. Bank v. Arerell. 2 App. D. C. 470 ; 22 W. L. R. 185. Where a check is presented at a bank, it is the right of the bank to refuse to have it placed to the holder's credit; but if it retains the check, it is bound to the depositor ; and no usage or custom that checks shall be held and only credited at the close of the day's business provided there are funds on hand to meet them, can prevail against it. lb. The contract implied by law between a bank and a depositor is that the bank will hold the funds and pay them out on the order of the de- positor ; and for breach of the duty imposed thereby the bank is liable Bar-rooms — Bawdy Houses. 107 either in tort or upon contract. Columbia Nat. Bank v. MacKnight, 29 App. D. C. 580; 35 W. L. R. 434. A breach of the contract between a bank and its depositor by dis- honoring a check, entitles the latter to substantial damages and the fact that the depositor is not a trader will not confine the jury to the • award of nominal damages. 76. In an action to recover damages for the wrongful dishonor of a check, evidence that plaintiff continued to draw checks against his ac- count after his deposit was exhausted, held inadmissible. Ih. The dishonor by a bank of one check does not preclude the depositor from drawing other checks. Ih. There is no reason why a check given to an attorney for a fee should not be paid as readily as the depositor's check to any other person ; and instruction in an action for the wrongful dishonor of a check, that a check drawn to the order of plaintiff's attorney is the same as if present- ed by the plaintiff himself, held properly refused. Ih. In an action to recover for the wrongful dishonor of a check an in- struction that if plaintiff's financial standing was such that he could not have been injured thereby, he was not entitled to recover, held properly refused. lb. The fact that a person had been convicted of a crime constitutes no defense to an action by him for the wrongful dishonor of his check. Ih. As to the right of the president or one acting as the president of a bank to employ counsel to represent the bank in litigation. See Russell V. Washington Savings Bank, 23 App. D. C. 398 ; 32 W. L. R. 278. Knowledge of cashier as knowledge of bank. See Post Steamboat Co. V. Loughran, 12 App. D. C. 430 ; 26 W. L. R. 405. As to duty of banks in respect of protesting paper and paying notary's fees. See Ohio Nat. Bank v. Hopkins, 8 App. D. C. 146 ; 24 W. L. R. 161. As to validity of contract with notary for division of fees. See lb. As to publication of statements of condition. See Convoy v. Carroll, 34 W. L. R. 517. Liability as partners of members of unincorporated joint stock company doing business as a savings-bank. Norwood v. Francis, 25 App. D. C. 463; 33 W. L. R. 455. See Bills and Notes. BAR-ROOMS. See Intoxicating Liquors. BAR TO PATENT. See Patents. BAR TO PRIORITY. See Patents. BATHING BEACH. See District of Columbia. BAWDY HOUSES. The keeping of a bawdy house was a common law offense and as such is punishable in this District. De Forest v. United States, 11 App. D. C. 458; 26 W. L. R. 346. The mere keeping of a bawdy house, where others and not the keeper commit acts of immorality, is of itself a disorderly act ; and a person may be guilty of a criminal offense in so doing whose conduct may be otherwise proper. lb. fo8 Beneficial Associations. In a prosecution for keeping a bawdy house, it is not necessary for the Government to show that the house is open, notorious and scandalous to the public. lb. Every person is presumed to have knowledge of what goes on in his "own house, and if it is shown that persons continually resort to such house for immoral purposes, the proprietor will be responsible for keeping an immoral house. lb. BENEFICIAL ASSOCIATIONS. I. Rights of Members. II. Constitution and By-Laws. III. Voting and Elections. IV. Beneficiaries. I. Rights of Members. The constitution and by-laws of a mutual benefit association, to which a party in becoming a member has agreed to conform, and the certificate of membership, constitute the contract and determine the rights of the members of the association ; and the rights thus defined and prescribed are to be enforced according to the terms of the contract, and not otherwise. Drum V. Benton, 13 App. D. C. 245; 26 W. L. R. 643. Where the by-laws of an association provide that a member in default for 30 days in payment of an assessment shall be notified, and if the de- fault continues for 30 days longer he shall be dropped, time is of the es- sence of the contract. lb. A member who, on being notified that he is in default, sends a check for the assessment to the treasurer of the association, but subsequently telegraphs requesting that it be held until he is heard from, and noth- ing further is heard from him, may be legally dropped from membership at the expiration of the period prescribed by the by-laws. lb. A subsequent tender of the check by the beneficiary named in the certificate of membership, after the death of the member, to whom it had been returned upon his being dropped from membership, and long after the expiration of the time limited for payment, can not avail to restore the deceased member to the position he would have occupied had the payment been made in due time, or to give the beneficiary any legal claim against the association. lb. Notice other than that of the fact of the time and amount of the assess- ment due is not necessary or required, unless it be by the express terras of the contract; and a member, after being given such notice, is not entitled to special notice to appear and show cause why he should not be dropped from membership. lb. Where the rules of a voluntary association provide that a member may be expelled for nonpayment of premiums, all proceedings to that end must be exercised in substantial accordance with the letter of the rules. Benton v. Drum, 26 W. L. R. 146. In order to work a forfeiture of the right of membership in a mutual association, it must clearly appear that such wag the meaning of the contract; and the facts upon which the forfeiture is claimed must be proved by the most satisfactory evidence. lb. The failure of the officers of a local council of a benevolent order to Beneficiai, Associations. 109 make returns to the general governing body of moneys collected by them will not authorize the general body to declare the policy of a member who has made payments to the local council forfeited. In making such col- lections the officers of the local council held the agents not only of the assured, but of the governing body as well. Marr v. Prudent Patricians, 30 W. L. R. 103. The failure of the officers of a local council to transmit dues collected to the central body will not defeat a recovery on a policy issued to a member who had regularly paid his dues, especially where the default of the officers in that regard and for which the local council had been sus- pended had occurred prior to the issuance of such policy. The issue of the policy under such circumstances was a waiver of the default. Prudent Patricians v. Marr, 20 App. D. C. 363 ; 30 W. L. R. 563. While courts will not ordinarily interfere to determine the good stand- ing of a member of a fraternal beneficial association, based upon morals, etc., they will take cognizance where such good standing is based merely upon payment of dues. lb. Where the by-laws of a fraternal beneficial association and the con- tract entered into between it and its members provide that forfeiture and disconnection shall follow the non-payment of an assessment, the member failing to pay an assessment within the stipulated time must suf- fer the penalty. Supreme Commandry of Golden Cross v. Bernard, 26 App. D. C. 169; 33 W. L. R. 722. The right given by the by-laws of a fraternal beneficial association to a member who has become disconnected therefrom by his failure to pay an assessment within the time prescribed to be reinstated upon payment of the assessment and such fine as the by-laws may provide, is a right personal to the member, and does not survive to his personal representa- tives, lb. The receipt of overdue assessments which are paid within the time pre- scribed by the by-laws of a fraternal beneficial association is not evidence of a waiver of the disconnection of the member paying them, where he has the absolute right to pay them within thirty days of his disconnection ; nor is the failure of the collecting officer to notify the supreme com- mandery by the disconnection such a waiver where that disconnection has been overcome by the payment of the overdue assessment. lb. Where at the time of his death a member of a fraternal beneficial asso- ciation was disconnected therefrom by reason of his failure to pay an assessment within th^ time prescribed, the tender by his legal representa- tives, within the thirty days during which, under the by-laws, the mem- ber might have reinstated himself upon payment of the assessment and a fine, of the amount of the assessment, was not sufficient to entitle the beneficiary to recover. lb. II. Constitution and By-Laws. The constitution and by-laws of beneficial associations should be lib- erally construed in order to effectuate the main purposes of their organ- ization. Berkeley v. Harper, 3 App. D. C. 308 ; 22 W. L. R. 329. The central governing body of a fraternal beneficial association cannot impose the duties of agency upon the officers of local councils and at the no Beneficial Associations. same time escape liability therefor by the mere declaration in a by-law that such officers should be regarded solely as the agents of the mem- bers of the local councils. Prudent Patricians v. Marr, 20 App. D. C. 363; 30 W. L. R. 563. A new constitution adopted without compliance with the requirements of the old constitution is invalid; and the act of the judiciary of the na- tional organization, created by such new constitution, in revoking the charter of a constituent organization is also invalid and will not be en- forced in equity. National Council v. State Council, 27 App. D. C. 1 ; 34 W. L. R. 126. It is not within the authority of a committee appointed to revise the constitution and laws, to originate and propose, without the notice re- quired for amendments, the abolition of the constitution and laws. lb. III. Voting and Elections. The entry in the minutes of the legislative body of an association that it was moved "that the report be accepted and the law adopted, which was agreed to" does not import that the motion was carried by a two- thirds vote as required by the constitution of the order. National Council V. State Council, 27 App. D. C. 1 ; 34 W. L. R. 126. Vague impressions of witnesses as to the result of a vote are not suf- ficient to overcome the correctness of the journal of proceedings of the legislative body of an order. lb. IV. Beneficiaries. A beneficiary under a policy issued by a beneficial association is not precluded from recourse to the courts to enforce the contract because the by-laws of the association prohibit legal proceedings by a member against it in any other way than through the regular channels of the order. Prudent Patricians v. Marr, 20 App. D. C. 363 ; 30- W. L. R. 563. In the event of the death of a beneficiary named before that of the certificate holder, held that the fund accruing under such certificate was distributable according to the by-laws of the association and not accord- ing to the will of such certificate holder. Moss v. Littleton, 6 App. D. C. 201; 23 W. L. R. 296. Provisions of the charter and by-laws of an association providing that a death benefit shall be paid to the family of the member or disposed of as he or she may direct, Held, to authorize the substitution of a friend or benefactor as beneficiary in ' place of the member's daughter, even though such friend or benefactor had no insurable interest in the life. Berkeley v. Harper, 3 App. D. C. 308; 23 W. L. R. 329. Neither the beneficiary nominated in a benefit certificate, nor his rep- resentative, in the event of his death before that of tht member, has any vested right or interest in the benefit. Up to the time of his death the member may change the beneficiary at will, even though the latter has advanced the money to pay the premiums. lb. Even though the assured dies before complying with all the forms pre- scribed for change of beneficiary, if his intention is plain and he does all he can to effect such substitution, his right is not lost. lb. BfiNBFiTs — Bicycles. hi The beneficiary named in the policy held entitled to notice and an op- portunity to protect her interest before any forfeiture of such interest could be made. Benton v. Drum, 26 W. L. R. 146. An incorporated joint stock association issued to C two certificates of insurance, by the terms of which the amounts stipulated were to be paid to her "heirs or assigns." Neither certificate contained a reservation of power to change or modify its provisions. Subsequently the charter of the association was changed so as to restrict beneficiaries of policy-holders to the family, heirs, blood relatives, affianced husband or wife, or persons dependent upon the policy-holder. C assigned the certificate to her ex- ecutor. After her death claim was made to the proceeds of the certificates by him and also by certain of her next of kin. Held, that the amend- ment to the charter was not binding on C to the extent of modifying her contracts entered into prior thereto, and the fund in controversy awarded to her assignee and executor. Brown v. True Reformers, 28 App. D. C. 200; 34 W. L. R. 750. BENEFITS. See Beneficial Associations; Condemnation of Land; Taxation and Assessment. BEQUESTS. A college authorized by its charter to give instruction in the liberal arts and sciences, and to take and apply bequests, etc., for the use of the college, may take a bequest to be used as an endowment for the pros- ecution of research into colonial history. Speer v. Colbert, 200 U. S. 130 ; 34 W. L. R. 14. A bequest to Georgetown University held to go to Georgetown College, that being the only incorporated institution with such a title able to take the bequest. Ih. As to validity, under § 34 of Maryland Bill of Rights and § 457 R. S. D. C, of gifts to incorporated college or orphan asylum. See lb. A bequest will not be held void for uncertainty unless absolutely neces- sary; and a bequest otherwise valid, of not to exceed a certain amount, held to be for that amount. lb. As to eff'ect of death or resignation of trustees named in a will to super- vise the administration of a bequest. See lb. As to the legality of placing in trustees discretion as to the application of a bequest. See lb. Conditions annexed to bequests, which lead to probable restraint of mar- riage, are void. Kennedy v. Alexander, 21 App. D. C. 424; 31 W. L. R. 158. VaHdity of transfer to father of minors, of property bequeathed to them. Darlington v. Turner, 24 App. D. C. 573 ; 33 W. L. R. 114. Bequests for the care of burial lots are not charitable and are therefore void as creating perpetuities, unless otherwise provided by statute. Ingle- hart V. Inglehart, 26 App. D. C. 209 ; 33 W. L. R. 711. What law governs validity of. See lb. BICYCLES. Whether the police regulation requiring the handle bars on a bicycle ridden on the streets of the city to be on a plane not lower than four 112 Bigamy — Bills and Notes. inches lower than the top of the saddle at its centre, is reasonable or unreasonable and oppressive, is a question as to which a party charged with its violation is entitled to offer evidence and to have it considered. Moore v. Dis. of Col., 12 App. D. C. 537; 36 W. L. R. 343. See SficoND-HAND Dealers. BIGAMY. Rev. Stat., § 5253 is in force in this District and is a full substitute for the statute of 1 James I., ch. 11. Knight v. United States, 6 App. D. C. 1 ; 23 W. L. R. 203. BILLS AND NOTES. I. Consideration. II. Negotiability. III. DeUvery. IV. Character of Parties to. V. Disability of Parties. VI. Accommodation Parties. VII. Alteration. VIII. Bona Me Holder. IX. Indorsement and Rights and Liabihties of Indorsers. X. Guaranty and Rights and Liabilities of Guarantors. XI. Warranty. XII. Agreements in Respect of. XIII. Usury. XIV. Presentment for Payment. XV. Payment. XVI. Dishonor. XVII. Waiver of Demand, Protest and Notice. XVIII. Fraud to Invalidate. XIX. Of Corporations. XX. Of Partnerships. XXI. Law Governing. XXII. Pleading. XXIII. Evidence. XXIV. Non-Negotiable Notes. XXV. Generally. I. Consideration. Every negotiable instrument is presumed to have been issued for a valuable consideration, and every party to have become such for value. Towles V. Tanner, 31 App. D. C. 530. An affidavit of defense in an action on a promissory note, setting up want of consideration and forgery does not cast upon plaintiff the burden of proving the contrary. lb. Failure of consideration is a good defense as against the payee in a promissory note, and a proper set-off is always pleadable in bar of a plaintiff's demand. Durant z'. Murdoch, 3 App. D. C. 114; 32 W. L. R. 349. Failure of consideration, to constitute a good defense to an action upon the promise, must be total. If there be any consideration at all, the courts will not inquire into its adequacy or attempt to weigh the extent of it. Brown v. Ohio Nat. Bank, 18 App. D. C. 598; 29 W. L. R. 819. In an action on a note for the balance of the purchase price of shares of its own stock sold by a national bank to the maker, and which shares Bills and Notes. 113 had at least some nominal value, it is no defense that an expectation of the maker, induced by representations of the agents of the bank making the sale, that he would be elected a director of the bank, was not realized, even though such representations were fraudulently made. lb. A negotiable check is practically an inland bill of exchange and im- ports consideration, and an affidavit in support of a declaration in a suit thereon need not show that certain stock for which the check was given, was actually delivered. Johnson v. Wright, 3 App. D. C. 216; 32 W. L. R. 134. The British statutes of 16 Car. IT., ch. 7, and 9 Anne, ch. 14, against gaming, so far as they might, or would, if in force, affect the negotiable instruments embraced by the act of Congress of Jan. 11, 1899, known as the "Negotiable Instruments Law," are inconsistent with the provisions of the latter act, and are, to the extent that they are so inconsistent or repugnant to the act of Congress, repealed, and no longer, as to negotiable instruments, in force in this District. Wirt v. Stubblcfield, 17 App. D. C. 283; 29 W. L. R. 44.- A promissory note made upon a gambling consideration is good in the "hands of a bona Me purchaser for value without notice. lb. As to sufficiency of affidavit of defense in action on a note setting up that it was given for a gambling transaction. See St. Clair v. Conlon, 12 App. D. C. 161 ; 26 W. L. R. 165. The acceptance of a note for the amount of bonds loaned, upon the failure of the borrower to return them, suspends all right of action on the bonds until the maturity of the note ; and such suspension is a suf- ficient consideration for the note to bind all parties signing it, whether all receive personal benefit from the suspension or not. Metserott v. Ward, 10 App. D. C. 514; 25 W. L. R. 396. It is not necessary in such case that the pre-existing debt created by the loan of the bonds shall be extinguished, or that receipts for the bonds by the party borrowing at the time of the loan shall be surrendered at the time of the acceptance of the note. lb. It is no defense to an action on a promissory note that collateral se- curity given in connection with a previous liability which constituted the consideration for the note sued upon, has not been returned or accounted for to the defendant ; nor is it a defense that the original liability was not evidenced by any promise or obhgation in writing. Ambler v. Ames, 1 App. D. C. 191 ; 31 W. L. R. 643. Prior to the Married Womans' Act, a note given by a husband to his wife for money received from her, was without consideration and a mere nudum pactum. Hewett v. Burritt, 3 App. D. C. 229; 22 W. L. R. 304. In an action on a promissory note against the indorser it is no defense that defendant did not, after discount of the note by plaintiff, receive a part of the proceeds claimed to be the consideration of his indorsement. Green v. Stewart, 33 App. D. C. 570 ; 32 W. L. R. 409. A person may bind himself by the acknowledgment of an altered or forged instrument and the promise to pay the same without a new con- sideration or some special ground of estoppel, provided the paper is in the hands of one who had no connection with the forgery, and the prom- ise is not involved in an attempt to compound the felony; but such 114 Bills and Notes. acknowledgment or ratification, in order to bind, must be witli full knowl- edge of the facts. Ofenstein v. Bryan, 30 App. D. C. 1 ; 30 W. L. R. 270. In an action against the indorser of a promissory note who indorsed it ■'as assignee of E. G. W.", defendant pleaded that he had received no consideration and that the indorsement was made at the request of the holder, a national bank, in order that its papers might be gotten in shape for examination by the government officers. Held, on appeal, that judg- ment for plaintiff should be reversed and the case remanded that the facts under which the indorsement was made might be shown. Fields v. Cen- tral Nat. Bank, 10 App. D. C. 1. II. Negotiability. The negotiability of a note is not affected by the fact that the prin- cipal may bat payable, at the option of the maker, before the date of cer- tain maturity; nor by the fact that it contains provisions for the pledge of certain stock as collateral security, and for the payment of interest at stated periods before maturity of the principal, whether such periods recur monthly or less frequently. Commercial Nat. Bank v. Brewing Co., 16 App. D. C. 186; 28 W. L. R. 320. But where, in addition to these provisions, the note stipulates for a monthly curtail of the principal, but the amount of such curtail or who or what shall determine its proportion is left to conjecture, and further provides that "on non-performance of this promise or any part thereof," the payee or the bank with whom the collateral is deposited may sell the same and apply the net proceeds to the payment of the note, and also provides that in case of the depreciation in the market value of the col- lateral pledged a payment shall be made on account or additional security added as required by said bank, and that "any excess of security upon this note shall be held as security for any other debt due said bank" by the maker, the note is non-negotiable, and an action at law can not be main- tained by an indorsee thereof in his own name. Ih. A memorandum written at the foot of a note at the time of its execu- tion, giving the makers the privilege of paying all or any part of it be- fore maturity, constitutes part of the note, and thereby makes the note payable on or before the time mentioned for maturity, at the option of the makers; and the negotiabihty of the note is not affected thereby. Bowie V. Hume, 13 App. D. C. 286 ; 26 W. L. R. 690. Where it is shown that such memorandum was appended at a time and under such circumstances as make it clear that it was not, by any fair legal intendment or construction made a part of the note, the negotiability of the note is not impaired, nor the liability of the indorser in any way affected. lb. A negotiable note secured by mortgage upon land loses none of its at- tributes by reason of that fact. The mortgage is an incident of the debt, and passes with its assignment. The debt evidenced by the note gives character to the mortgage, and protects .it from equities between a mort- gagor and mortgagee on behalf of a bona Ude holder for value. Brewer v. Slater, 18 App. D. C. 48 ; 29 W. L. R. 259. A promissory note containing a provision authorizing a bank not other- wise connected with the transaction, to demand additional collateral, or BlLI^S AND NOTUS. 115 payment of money on account, whenever in its opinion the collateral shall have depreciated in value, and to sell the same on failure to comply with the demands, is not negotiable. Commercial Nat. Bank v. Brewing Co., 17 App. D. C. 100. III. Delivery. If the drawer- of a check or other negotiable instrument die before its delivery to and acceptance by the payee, it becomes a nullity, and can not be delivered by his representative. Drum v. Benton, 13 App. D. C. 245; 26 W. L. R. 642. IV. Character of Parties to. The payee of a promissory note is presumed to remain the holder until the contrary appears, and in a suit by him against the maker it is not necessary for him to allege that he has not transferred it. Wilkins v. McGuire, 2 App. D. C. 448 ; 22 W. L. R. 155. One who indorses his name in blank on a negotiable note before it is indorsed by the payee, and before it is intended to take effect as a prom- issory note, will, in the absence of proof, be regarded as a guarantor or original promisor, and as such is not entitled to demand and notice. Portsmouth Bank v. Wilson, 5 App. D. C. 8; 22 W. L. R. 817. Where a party signs his name to a note professing on its face to have been signed in the character of maker, the note must be taken as express- ing his intention and obligation; and the party so signing cannot relieve himself from liability as maker by the introduction of parol evidence to show that he intended to sign as indorser merely. Metscrott v. Ward, 10 App. D. C. 514; 25 W. L. R. 296. A party writing his name upon the back of a note before its delivery is not an indorser in the technical sense of that term, but presumably a joint maker or surety, although evidence is admissible to show that he signed as a technical indorser. Chandler & Taylor Co. v. Norwood, 14 App. D. C. 357; 27 W. L. R. 166. An affidavit of defense by an indorser to the effect that his indorsement of the note in suit was without consideration ; that the original note of which it was a. renewal was made in closing an account between plaintiff and a co-defendant, a railway company, the consideration being coal fur- nished the latter prior to the date of the note; that his indorsement was at plaintiff's request without consideration moving from said railway company or to said plaintiff, the plaintiff agreeing that if he would place his name on the note said company should thereafter have coal of a better quality and at the usual rate and not at the credit prices theretofore paid by it, which agreement plaintiff had wholly disregarded, and that he was merely an indorser; held insufficient, and a judgment for the plaintiff under Rule 73 affirmed. Randle v. Davis Coal & Coke Co., 15 App. D. C. 357; 37 W. L. R. 773, As to indorsement of note being prima facie that of a joint-maker. See lb. V. Disability of Parties. An action by a married woman on a note executed by defendant for a loan obtained from her as her separate property, can not be defeated ii6 Bills and Notes. by the defendant by denying her capacity to sue where he has no defense whatever to the note, and where credits for payments alleged to have been made by him to the husband are allowed in full and he has no set- off or counterclaim against the husband. Richards v. Bippus, 18 App. D. C. 293 ; 29 W. L. R. 414. In an action by the assignee of a note made by a husband to the order of his wife, and by her assigned, an affidavit of defense 'setting up cover- ture, is insufficient. Branson v. Brady, 28 App. D. C. 250; 34 W. L. R. 704. As to property right of wife in promissory note made by her husband to her order. See Ih. VI. Accoinmodation Parties. Under § 1333, Code D. C, an accommodation maker is liable to a holder for value, notwithstanding such holder had knowledge of that fact when he received the note. Willard v. Crook, 21 App. D. C. 237 ; 31 W. L. R. 177. VII. Alteration. Parties to a note are not bound if the note was, after signing, altered by the party negotiating it in a material particular and without their knowledge and consent. Ofcnstein v. Bryan, 20 App. D. C. 1 ; 30 W. L. R. 270. There is no presumption in law that the erasure of the printed words "and grace" on a promissory note was after indorsement ; nor is such an erasure a material alteration. Portsmouth Bank v. Wilson, 5 App. D. C. 8; 23 W. L. R. 817. VIII. Bona Fide Holder. Possession of a negotiable note indorsed in blank raises the presump- tion that the party becomes its holder before maturity, in good faith, and without notice of anything to impeach his rights ; but slight cir- cumstances are often sufficient to cast upon the holder the burden of mak- ing satisfactory proof of the transfer" before maturity, and proof that, on the day of its maturity, the note was in the actual control and cus- tody of the payee, to whom a payment on account of interest and prin- cipal was made, is sufficient to overcome the presumption. Cropley v. Byster, 9 App. D. C. 373 ; 24 W. L. R. 829. Neither suspicious circumstances nor gross negligence will defeat the title of a holder in due course of a negotiable note ; but such a result can be produced only by bad faith, which implies guilty knowledge or wilful ignorance ; and the burden of proof is on the party assailing the title. Hutchins V. Langlcy. 27 App. D, C. 234; 34 W. L. R. 486. Defenses available against the holder of a note are available against a receiver to whom the note is transferred under a decree of court, lb. Where a promissory note complete and regular on its face, is, before maturity, transferred by the holder thereof as collateral security for a note made by him, the title of the transferee, he being a holder in due course, can not be defeated by showing an oral agreement between the maker and payee of such note by the terms of which it was to be returned in the event certain stocks, for the purchase of which it was given, should Bills and Noti;s. 117 decline in value, and was to be used as collateral elsewhere than in Washington. lb. The position of the holder of negotiable paper for value is a strong one, and he can not be displaced by mere circumstances of suspicion growing out of the unpopular business or even the ill reputation of his assignor. Brewer v. Slater, 18 App. D. C. 48 ; 29 W. L. R. 359. A holder of a note deriving title through a holder in due course, and who is not himself a party to any fraud or illegality affecting the instru- ment, has all the rights of such former holder in respect of all parties prior to the latter ; and every holder is deemed prima facie to be a holder in due course until the contrary is shown. Bryan v. Harr, 21 App. D. C. 190; 31 W. L. R. 142. IX. Indorsement and Rights and Liabilities of Indorsers. Where a party indorses a note before its delivery to a holder for value, and at the time of his indorsement the name of another person appears on the note as first indorser, and the holder takes the note upon the faith of the genuineness of both indorsements, the second indorser is estopped to deny the genuineness of the signature of the first indorser as against the bona fide, holder for value. Bowie v. Hume, 13 App. D. C. 286; 26 W. L. R. 690. Whether an indorsement of a note be genuine or not is immaterial where the party whose indorsement is alleged to have been forged sub- sequently signs a waiver of notice indorsed on the note, since the sig- nature to the waiver is an adoption of the signature of the indorsement. lb. A memorandum written at the foot of a note after it was maue and after its indorsement, giving the maker the privilege of paying all or part of it before maturity, will not release the indorser from liability when there is nothing to show that it was appended after delivery to a bona Me holder for value. In such case, the memorandum will be treated as not forming part of the note as against the indorser, and as wholly imma- terial, lb. Proof of a request by the maker of a note for extension for two years, and a counter proposition by holder to extend for three years, it not being •shown that the parties ever came to an agreement, is not sufficient to show an extension so as to discharge the indorsers ; nor can such agree- ment to extend be inferred from the fact of payment of interest after ma- turity by the maker of the note, especially where the note was upon ma- turity duly protested for non-payment, the indorsers notified, and suit commenced in due time against all parties. Clark v. Reed, 12 App. D. C. 343; 26 W. L. R. 183. Where, more than a year before the maturity of notes, the holder indorsed thereon an agreement to extend the time of payment for two years provided semi-annual interest was paid promptly, and subsequently, before maturity of the notes; the provisional extension was recalled and cancelled because the interest had not been paid, and on maturity the notes were protested for non-payment and due notice given the indorsers, held that the indorsers were not discharged. Walker v. Washington Title Ins. Co., 19 App. D. C. 575; 30 W. L. R. 355. ii8 BiLi,s AND Notes. Whether a valid agreement between the holder of a note secured by deed of trust and a purchaser of the property subject thereto and who has expressly assumed the payment of the debt, to extend the time of pay- ment for a definite period, without the consent of sureties or indorsers on the note, will discharge the latter. See lb. Receipt of partial payments of overdue interest when tendered, and subsequent delay to sue upon notes, without a contract for forbearance, afford no ground for the discharge of indorsers. lb. In an action on a promissory note indorsed in blank by the payee, the note when offered in evidence had written on the back, after the payee's blank indorsement, the words, "To acct. of Benjamin F. Edwards." On defendant's objection of a variance, counsel for plaintiff struck out these words and again offered the note, claiming the right to do so under § 1352 of the Code. The trial court overruled defendant's objection and admitted the note in evidence. Held, that the indorsement stricken out not being necessary to plaintiff's title, which title she derived not by virtue of such indorsement, but by delivery of the note to her by Ed- wards, she had the right, under § 1352 of the Code, to strike it out. Jerman v. Edwards, 29 App. D. C. 535; 35 W. L. R. 466. A promissory note payable to the order of a particular person is the equivalent of a note payable to him or his order and he may sue upon it without alleging indorsement by him and without special averment that he is the holder and owner of it. Durant v. Murdoch, 3 App. D. C. 114; 22 W. L. R. 349. A promissory note which, at the request of defendant, who was a prior indorser thereon, plaintiff had discounted at a bank in renewal of a prior note upon which defendant was also an indorser, was dishonored at maturity, and plaintiff was compelled to pay the same and take up the note. In an action against the defendant as prior indorser to recover the amount paid in taking up the note, held, the bank being a holder in due course, plaintiff, by paying the note, became holder of the note for value and entitled to all rights of the bank as against all parties liable thereon prior to his own indorsement to the bank, nothing being shown to impeach or defeat his title; and an affidavit of defense setting up the alleged in- validity of a prior note of which the one in suit was a renewal, by reason of its alteration after indorsement by defendant, held insufficient. Bryan V. Hair. 21 App. D. C. 190; 31 W. L. R. 142. The liability of an indorser of a note to a purchaser thereof is not af- fected by the purchaser taking a bond and mortgage made by such indorser as additional security. Green v. Stewart, 23 App. D. C. 570; 32 W. L. R. 409. Release of indorser from liability for deficit after sale under deed of trust, by performance of contract made with one of holders of note who were trustees under the deed of trust and purchasers at sale. Ubhoff v. Brandenburg, 26 App. D. C. 3 ; 33 W. L. R. 473. As to the right of indorser to subrogation. See Mankey v. Willoughby, 21 App. D. C. 314 ; 31 W. L. R. 226. X. Guaranty and Rights and Liabilities of Guarantors. Proof that the guarantor of a note had received and applied to his own Bills and Notes. ttg use the proceeds thereof, or had failed to take up the note with money furnished by the maker, is a defense to a suit by the guarantor, who had been compelled to pay the note as such, to establish a lien on collateral security for the note ; but the burden of proof of such facts is on the de- fendants. Mankey v. Willoughby, 21 App. D. C. 314 ; 31 W. L. R. 226. Where certificates indorsed in blank, with no restriction as to their use, and with an express authority to have all right and interest in them transferred on the books of the syndicate, are pledged as collateral se- curity for a note, a guarantor of the note compelled to pay it is entitled to have such certificates delivered to him as means of indemnity, and that the owner of the certificates had merely loaned them to the maker for a particular use under promise to return them, does not affect the guar- antor, lb. XI. Warranty. By §§ 1369, 1370, Code D. C., an indorser by his indorsement warrants the genuineness of the paper, his own title thereto, and the capacity of all the preceding parties to contract. Williard v. Crook, 21 App. D. C. 237 ; 31 W. L. R. 177. The transferer by delivery merely of a bill or note warrants its val- idity, and receives the price for the transfer upon that condition ; but the contract of sale or transfer, to say nothing of payment, may be made in such form, or under such circumstances as to exclude the warranty. Strauss V. Hensey, 7 App. D. C. 289 ; 23 W. L. R. 843. XII. Agreements in Respect of. An agreement between the holder and maker of a promissory note, consented to by the indorser thereof, for extension of time of payment for a definite period, in consideration of the payment of interest for the ex- tended time, is valid and binding upon all the parties thereto. Reed v. Tierney, 12 App. D. C. 165; 26 W. L. R. 133. XIII. Usury. A note or obligation is affected with usury if the principal makes the loan knowing that his agent has exacted a bonus or commission from the borrower, though for his own sole benefit, which, with the interest payable to the principal, would amount to more than the rate permitted by law. Richards v. Bippus, 18 App. D. C. 393 ; 29 W. L. R. 414. XIV. Presentment for Payment. As between maker and payee of a promissory note, no presentation for payment is necessary, even though distinctly provided for. Wilkins v. McGuire, 2 App. D. C. 448 ; 33 W. L. R. 155. The provision in the body of a note for notice to be given at a partic- ular place does not require presentation at such place for payment. lb. XV. Payment. As to sufficiency of payment of note to one at whose office it was made payable and who had possession thereof. See Fifth Congregational Church V. Bright, 28 App. D. C. 339; 34 W. L. R. 718. XVI. Dishonor. In order to fix the liability of joint indorsers, notice of dishonor of the 120 Bills and Notes. paper at maturity must be given to each of them in order to preserve the right of contribution inter sese ; and notice to one only would be without effect as to him. Bowie v. Hume, 13 App. D. C. 286; 26 W. L. R. 690. Protest of a foreign bill of exchange is excused where the drawer has no funds in the hands of the drawee, or has no right to draw the bill, or has admitted his liability on the bill, or promised to pay the same. Lazurence v. Hammond, 4 App. D. C. 467; 22 W. L. R. 749. Official protest of a promissory note is not necessary to hold indorsers. The power given notaries public by §§ 985, 988, R. S. D. C, is not ex- clusive of pre-existing methods of demand and notice. Presbrey v. Thomas, 1 App. D. C. 171 ; 21 W. L. R. 659. An affidavit accompanying a declaration in a suit against the maker and two indorsers of a promissory note, which states that the note was at maturity duly presented for payment, and was dishonored, whereof each of the defendants had due notice, is sufficient under the 73d rule. Young z: Warner, 6 App. D. C. 433 ; 23 W. L. R. 373. XVII. Waiver of Demand, Protest and Notice. A waiver of demand and notice may be upon any part of negotiable paper, either upon the face or back of it. Portsmouth Bank v. Wilson, 5 App. D. C. 8; 32 W. L. R. 817. Indorsement of negotiable paper implies a contract to pay the amount of the note on default of the person primarily liable, provided demand is promptly made upon such person at maturity and due notice of non-pay- ment given indorser. The condition of demand and notice may be waived either by express stipulation or by course of conduct. lb. A promissory note, at the time of its delivery to the payee, had printed across the back of it the words, "Liable without demand and notice," beneath which was the signature of H. Subsequently the payee indorsed the note under the name of H. Held, that this constituted an express waiver by the payee of demand and notice. lb. In order to make a waiver of demand, protest and notice effectual, it must have been by all the indorsers interested in the question of con- tribution inter sese. Bowie v. Hume, 13 App, D. C. 286; 26 W. L. R. 690. XVIII. Fraud to Invalidate. Fraud to invalidate a note is not sufficiently proved by evidence that the payee promised to return it under certain conditions and not to use it as collateral security except in a certain locality, and that these prom- ises were not kept. Hutchins v. Langlcy, 37 App. D. C. 334; 34 W. L. R. 486. XIX. Of Corporations. Under §1326, Code D. C, the indorsement of a note by a corporation, although beyond its powers, passes the property therein. Willard v. Crook, 21 App. D. C. 237 ; 31 W. L. R. 177. Whether or not an ordinary trading corporation has implied power to indorse negotiable paper for accommodation merely, the defense of want of authority is unavailable where the party acting upon the faith of that indorsement had no notice of the fact. lb. BiLivS AND Notes. 121 The omission of the word "by" between the title of the corporation and the names of its oiificers acting for it in the indorsement of a prom- issory note, is immaterial. Clark v. Reed, 12 App. D. C. 343, 26 W. L. R. 183. The impression of the seal of a corporation in connection with an in- dorsement of a note by such corporation, does not of itself suffice to re- strain the negotiability of the paper or to convert it into a specialty; and an action of assumpsit may be maintained thereon. lb. As to power of corporation to make and deliver notes. See Wash. Times Co. v. Wilder, 12 App. D. C. 62 ; 26 W. L. R. 136. XX. Of Partnerships. As to power of individual member of non-trading partnership to bind firm by commercial paper in firm name, and burden of proving such power. See Preshrey v. Thomas, 1 App. D. C. 171 ; 21 W. L. R. 659. As to right of holder to recover against firm on the accommodation indorsement in the firm name by one partner. See Ih. As to power of members of non-trading partnership to bind firm by. See lb. XXI. Law Governing. A note which is negotiable where made and to be performed must be treated as negotiable in this District, and the indorsee may sue thereon here. Lockwood v. Lindsey, 6 App. D. C. 396 ; 23 W. L. R. 371. Where a negotiable promissory note is made in and according to the law of one State, and there payable, though indorsed in another State, the liability of the maker to the indorsee is determined by the law of the State where made and to be performed. lb. XXII. Pleading. In an action of assumpsit against an alleged indorser of a promissory note, the genuineness of the indorsement may be attacked under a plea ot the general issue. Keyser v. Pickrell, i App. D. C. 198 ; 22 W. L. R. 639. As to necessity for filing with declaration in action on. See Finney v. Penna. Iron Works, 22 App. D. C. 476; 31 W. L. R. 698. As to cure by verdict of defect in declaration on promissory note which contains no formal statement of the amount claimed. See Chandler & Taylor Co. v. Norwood, 14 App. D. C. 357; 27 W. L. R. 166. Action on; defect in declaration as ground for arrest of judgment. See lb. Under § 827, R. S. D. C, the maker and two endorsers may be joined as defendants in an action by the holder or indorsee of a promissory note. Young V. Warner, 6 App. D, C. 433 ; 23 W. L. R. 373. AXIII. Evidence. The mere indorsement on the back of a note that interest has been paid is not proof of the fact, so as to remove the bar of limitations. Cropley V. Byster, 9 App. D. C. 373; 24 W. L. R. 829. Where there is no fraud and no ambiguity requiring explanation, parol evidence cannot be introduced to change, vary, qualify or contradict the 122 Bills and Notes. legal import of the contract of a bill or note evidenced by the signatures of the party or parties thereto. Metzerott v. Ward, 10 App. D. C. 514; 25 W. L. R. 296. Where by its terms a promissory note contains a promise to pay a sum certain, evidence is not admissible to show a collateral understanding that a certain sum should in future be credited upon it, and that the paper should then be considered a promissory note for the balance. Knight V. Walker Brick Co., 23 App. D. C. 519; 32 W. L. R. 327. Parol evidence of a contemporaneous agreement that an indorsement was without recourse is inadmissible in an action against the indorser. Randle r. Davis Coal & Coke Co., 15 App. D. C. 357. Where a negotiable instrument, that has apparently been altered in a material respect and so as reasonably to excite suspicion, is offered in evidence by one claiming under it, it is incumbent upon the party offer- ing it to give some evidence tending to explain its condition; and where no such explanation is offered the note is rightly excluded. Ofenstein v. Bryan, 20 App. D. C. 1 ; 30 W. L. R. 270. The preliminary question whether, on the face of the note, the altera- tion is material and so plainly suspicious as to warrant the requirement of some explanatory evidence as the condition of its admission, is for the determination of the court; but when admitted after some such proof, the question whether the alteration was made before or after delivery, or with or without the consent of the several signers and indorsers, is one that must be submitted to the jury. Ih. Where evidence was given as to the genuineness of the signatures, and plaintiff's evidence was positive that the note had undergone no altera- tion after its receipt by him, and he and another witness who had pre- sented the note for him for the party negotiating it testified there was nothing suspicious in its appearance when received, held that however improbable this evidence might have appeared in view of the condition of the note when offered in evidence and of the established and confessed criminal conduct of the party negotiating it in the matter of altering and raising similar notes, it raised an issue of fact to be submitted to the jury. lb. Evidence as to the embarrassed condition of a company in which the defendants were alleged to be interested with the party negotiating the note, and as to the execution of notes by the latter for the needs of the company, is admissible only as a foundation for other evidence tending to show authority to such party to erase dates and amounts of former notes executed by defendants, substitute them at his will, and then again offer them for discount, or that with full knowledge of the facts they had admitted the genuineness of the note and promised to pay it to an inno- cent holder. Ih. That other notes, not part of the transaction with plaintiffs, were paid by defendants with knowledge of their forgery, is not relevant, and can not operate as an estoppel to deny the validity of the note sued on. lb. A confession by the party negotiating the note to having altered and raised similar notes is not admissible on behalf of the defendants unless made so by other evidence in the case. lb. The testimony of a witness that he had seen blank notes in the pos- BiLivS AND Notes. 123 session of the party negotiating the note in suit with what he believed to be the genuine signature of one of the indorsers was rightly excluded. lb. Evidence tending to show that bottles of an ink eradicator were found in the desk of the party negotiating the note held relevant in view of expert testimony in regard to the apparent use of that preparation upon the note in question. lb. Testimony by a witness that he was present in the office of the party negotiating notes, and that this was done in the presence of defendants, held competent. lb. XXIV. Non-Negotiable Notes. In this District the assignee of a non-negotiable note can maintain an action at law upon it only in the name of the payee and assignor to his use. Commercial Nat. Bank v. Brewing Co., 16 App. D. C. 186 ; 28 W. L. R. 330. XXV. Generally. That a party taking before maturity a promissory note indorsed in blank by the holder as collateral security for the note of such holder, had notice that the holder was engaged in the sale of mining stocks, is not suf- ficient to affect him with any defenses existing as between the maker and payee of such note. Hutchins v. Langley, 27 App. D. C. 234; 34 W. L. R. 486. In joint and several notes executed by husband and wife, the fact that the wife's signature appeared above that of the husband's, has no sig- nificance, in the absence of other circumstances, as evidence that the debt was that of the wife. Shea v. McMahon, 16 App. D, C. 65 ; 28 W. L. R. 203. ' The pendency of an equity suit in which the holder of a note has filed a cross-bill for substitution of trustees for those named in the deed of trust securing the note, will not bar an action at law by such holder to recover on the note. Walker v. Washington Title Ins. Co., 19 App. D. C. 575; 30 W. L. R. 355. One who induces another to accept a note by representing that it was secured by first mortgage and without disclosing that the mortgage em- braced a second note in which he was payee, is estopped to deny the truth of his representation ; and as to his rights against such party he will be treated in equity as a second mortgagee ; and his transferee after maturity has no superior rights. Cropley v. Byster, 9 App. D. C. 373 ; 24 W. L. R. 829. A check is an obligation within meaning of § 5501, Rev. Stat. United States V. Beavers, 34 W. L. R. 62. As to availability of set-off in action on promissory note. See Knight V. Walker Brick Co., 23 App. D. C. 519; 32 W. L. R. 337. Intervention of equity to prevent execution on judgment against maker of notes. Tobriner v. White, 19 App. D. C. 163; 29 W. L. R. 838. Rights of trustee under a deed of trust, as purchaser of the note secured thereby. Brewer v. Slater, 18 App. D. C. 48 ; 29 W. L. R. 259. In an action against the transferer by delivery of forged promissory notes, to recover the amount paid therefor, an affidavit of defense set- 124 BiLi, OF Complaint — Bii.iv of Exceptions. ting forth that the money was paid by plaintiff as agent of the maker in settlement and satisfaction of the notes, held sufficient to entitle defendant to a trial. Strauss v. Hensey, 7 App. D. C. 289; 23 W. L. R. 842. As to sufficiency of affidavit in support of declaration in action on note. See Newman v. Goddard, 12 App. D. C. 404 ; 26 W. L. R. 218. As to sufficiency of affidavit of defense in action on note. See Law- rence V. Hammond, 4 App. D. C. 467 ; 22 W. L. R. 749 ; Meyers v. Davis, 13 App. D. C. 361 ; 26 W. L. R. 710 ; Brezving Co. v. Tobin, 18 App. D. C. 584 ; 29 W. L. R. 841 ; 19 App. D. C. 353 ; 30 W. L. R. 170 ; Branson v. Brady, 28 App. D. C. 250; 34 W. L. R. 704. See also Porgbry ; Married Wombn ; Usury BILL OF COMPLAINT. When, in absence of defense, allegations of bill may be taken as true without proof. Perkins v. Tyrer, 24 App. D. C. 447 ; 33 W. L. R. 54. See Pleading. BILL OF EXCEPTIONS. I. Necessity for. II. Sufficiency of. III. Settlement. IV. In General. I. Necessity for. The purpose of a bill of exceptions is to make that a matter of record which otherwise would not appear in the record ; but when the questions raised already sufficiently appear from the pleadings and proceedings of record, no bill of exceptions is necessary. Evans v. Humphreys, 9 App. D. C. 392; 24 W. L. R. 782. An appeal will not ordinarily be entertained where the record contains no bill of exceptions signed by the trial justice, but merely a stipulation by counsel as to the facts. Fri::::cl V: Murphy, 19 App. D. C. 440; 30 W. L. R. 203. The right of appeal is not dependent upon the appearance in the record of a regular bill of exceptions. Raymond v. United States, 26 App. D. C. 250 ; 34 W. L. R. 562. A formal bill of exceptions is unnecessary when an agreed statement of facts is signed by the parties, submitted to the court and made part of the record. American Sec. & T. Co. v. Walker, 23 App. D. C. 583; 32 W. L. R. 348. As to necessity for bill of exceptions on appeal from rulings in sci. fa. proceedings. See Ofterback v. Patch, 5 App, D. C. 69; 22 W. L. R. 833; Lyon V. Ford, 7 App. D. C. 314 ; 23 W. L. R. 838. For an appellate court to review an adjudication by a trial court on a motion to quash a writ of attachment, the testimony for and against which is taken orally at chambers, it is necessary that requests for rulings upon the testimony be presented at the conclusion thereof, exceptions then and there taken to the rulings and formulated into a bill of exceptions purporting to have been taken at the trial. Wilkins &■ Co. v. Hillman, 8 App. D, C. 469; 24 W. L. R. 300. Where, however, there is no controversy as to the testimony adduced and the rulings of the trial justice thereon, and the testimony having been Bill o]? Exceptions. 125 reduced to writing and the proceedings having been certified to by the trial justice, such statement treated as the equivalent of a bill of ex- ceptions, lb. Affidavits in attachment become a part of the record on appeal without a bill of exceptions or agreed statement. Barbour v. Paige Hotel Co., 3 App. D. C. 174; 32 W. L. R. 33. II.. Sufficiency of. A bill of exceptions should not contain a literal transcript of all the evidence, but only such as is necessary to enable the appellate court to fully comprehend the points presented for consideration. Balto. & Pot. R. R. Co. V. Fitzgerald, 2 App. D. C. 501; 23 W. L. R. 317; Same v. Walker, 3 App. D. C. 521 ; 22 W. L. R. 333 It is the duty of a party taking an exception to have incorporated in the bill the true state of facts upon which the exception was founded. Snell V. United States, 16 App. D. C. 501 ; 28 W. L. R. 518. The Court of Appeals has power of its own motion to refuse to con- sider a bill of exceptions prepared in disregard of its rules. Dis. of Col. V. Fraser, 21 App. D. C. 154; 31 W. L. R. 83. A general exception to a charge of the court, which does not direct attention to the particular part objected to, raises no question for review. Thomas v. Presbrey, 5 App. D. C. 317 ; 23 W. L. R. 123. An exception to an entire paragraph of a charge which contains sev- eral separable propositions of law, some of which are correct, will not be considered on appeal. Hughes v. Heyman, 4 App, D. C. 444 ; 23 W. L. R. 737. Exceptions to certain paragraphs of a charge indicated by letters on the margin, and thereafter printing the same in capital letters, will not be con- sidered on appeal. Hubbard v. Perlie, 35 App. D. C. 477; 33 W. L. R. 482. To warrant an appellate court in determining whether there was error in giving or refusing an instruction to return a verdict, the bill of ex- ceptions must show that all the evidence has been set forth. Rockzvell V. Traction Co., 35 App. D. C. 98; 33 W. L. R. 338. A bill of exceptions cannot be taken as a complete statement of all the evidence where it is apparent from the charge of the court that cer- tain letters were offered in evidence as tending to show acknowledgment of guilt of defendant, and such letters are not recited or mentioned in the bill. Fields v. United States, 37 App. D. C. 433 ; 34 W. L. R. 383. A general exception to an auditor's report, to the effect merely that the finding, instead of being in favor of one party should have been in favor of the other, affords no ground for review. Smith v. American B. & T. Co., 12 App. D. C. 192 ; 26 W. L. R. 199. III. Settlement. A bill of exceptions must be settled by the court below and brought into the appellate court in a completed form; and the latter court must accept what is certified therein as the actual truth. Keely v. Moore, 22 App. D. C. 1 ; 31 W. L. R. 390. Where a bill of exceptions has for good reasons not been signed within the time prescribed by the rules of court, the trial justice may settle it 126 BiLi, OF Exceptions. thereafter nunc pro tunc. Johnson-Wynne Co. v. Wright, 28 App. D. C. 375; 35 W. L. R. 3. A trial court has power to settle a bill of exceptions while an appeal is pending. Evans v. Humphreys, 9 App. D. C. 392; 24 W. L. R. 782. The rule of the Supreme Court of the District requiring the settlement of bills of exceptions before the close of the term, refers to the trial term. Brown v. Bradley, 6 App. D. C. 207; 23 W. L. R. 293. A judge can not act judicially upon the rights of parties after the lapse of the term at which the trial took place, in settling and signing a bill of exceptions, in the absence of a rule of court authorizing the same, or a previous order of the court extending the time therefor, or the agree- ment of the parties for that purpose. Keely v. Moore, 22 App. D. C. 1; 31 W. L. R. 290. A fault or omission in framing or tendering a bill of exceptions, can not be amended at a subsequent term, Ih. Whether an order extending the time for settling a bill of exceptions, when regularly applied for, shall be made, is a matter in the discretion of the trial court. Raymond v. United States, 26 App. D. C. 250; 34 W. L. R. 562. Where parties fail to agree upon a bill of exceptions the court has power, under rule 56, to set aside the verdict and award a new trial; and such order will have the effect to vacate the judgment previously rendered upon the verdict, although it does not in express terms do so. Evans v. Humphreys, 9 App. D. C. 392; 24 W. L. R. 783. The Court of Appeals will decline to consider bills of exceptions which do not conform substantially with the provisions of Rule 5. Broivn v. Insurance Co., 31 App. D. C. 335; 31 W. L. R. 206. IV. In General. The presentation of a proposed bill of exceptions to the clerk of the court is not the equivalent of a presentation to the trial justice. The act of the clerk in receiving an unsettled bill is done as the agent of the party and not of the justice. Johnson-Wynne Co. v. Wright, 28 App. D. C. 375 ; 35 W. L. R. 2. Parties cannot, by affidavits or agreements, cause that to become a bill of exceptions which is not such in a legal sense. Metropolitan R. R. Co. v. Dis. of Col., 195 U. S. 323. As to allowance of costs when bill not prepared according to rules of court. See Brown v. Commercial Fire Ins. Co., 31 App. D. C. 325; 31 W. L. R. 206. As to power of Court of Appeals to correct bill of exceptions. See Keely v. Moore, 22 App. D. C. 1 ; 31 W. L. R. 290. As to dismissal of appeal for imperfections in. See Reeves v. Low, 8 App. D. C. 105; 24 W. L. R. 113. The granting or refusal of a new trial is not the subject of a bill of exceptions. Dis. of Col. v. Wilcox, 4 App. D. C. 90 ; 23 W. L. R. 623. A bill of exceptions has no connection with a motion for a new trial. Brown v. Bradley, 6 App, D. C. 207; 23 W. L. R. 393. As to extension of time for filing. See American Bonding & Trust Co. V. Paynter, 23 App. D. C. 535; 33 W. L. R. 363. Bill of Interpleader — Bill of Review. 127 As to who may grant extension of time for filing bill of exceptions. See /&. BILL OF INTERPLEADER. See Equity; IntbrplEader. BILL OF PARTICULARS. The granting or refusing of a bill of particulars is discretionary with the trial court; and the exercise of such discretion will not be reviewed on appeal unless it appears that substantial injury has resulted therefrom. Vansant v. Lindsley, 2 App. D. C. 421; 22 W. L. R. 162; Lauer v. Dis. of Col, 11 App. D. C. 453; 26 W. L. R. 72; Bass v. United States, 20 App. D. C. 232; 30 W. L. R. 546; Hyde v. United States, 27 App. D. C. 362; 34 W. L. R. 494 ; Fields v. United States, 27 App. D. C. 433 ; 34 W. L. R. 392. Refusal of a justice of the peace to require a bill of particulars held not error. Carver v. O'Neal, 11 App. D. C. 353; 25 W. L. R. 704. BILL OF REVIEW. A bill of review lies either for errors of law appearing in the body of the decree, or for new matter arising or discovered after it has been ren- dered. McGozvan v. Blroy, 28 App. D. C. 188 ; 34 W. L. R. 782. The right to file a bill of review held not lost by laches where the bill was filed and writs of subpcena regularly issued, and alias process also issued and served upon one of the necessary parties defendant, within two years after entry of the original decree, notwithstanding con- siderable delay ensued in procuring an order for service by publication upon defendants shown to be non-residents, where there is nothing to show that this delay was unreasonable or attributable to bad faith or operated to the prejudice of defendants. Landram v. Jordan, 25 App. D. C. 291; 33 W. L. R. 243. A bill seeking to review a former decree, both for error of law appear- ing in the body of the decree and for newly discovered evidence, can only be filed by leave of court. McGowan v. Blroy. 28 App. D. C. 188; 34 W. L. R. 782. Where a paper purporting to be a petition for leave to file a bill of re- view is in form such a bill, upon which a rule is issued to show cause why its prayers should not be granted, and a general demurrer is entered by defendants, upon which the bill is dismissed, it is too late for de- fendants, on appeal by complainants from the order of dismissal, to ob- ject in the appellate court that formal leave to file the bill of review was not granted. lb. Where the original bill, upon which there was a decree for complainants, was filed for the cancellation of a deed for fraud and undue influence, and no suggestion of want of jurisdiction was made by defendants, the equity court is not bound of its own motion to raise the question ; and a bill of review alleging as error of law appearing in the original decree that the court was without jurisdiction, inasmuch as the complainants had an adequate remedy at law in an action of ejectment, will be dismiss- ed, lb. T. made a will giving certain real estate to M., and subsequently a deed conveying to him the same property. She died Jan. 11, 1902, and her 128 Bii.1, OF Review — Blodget Claim. will was filed, but not then offered for probate. April 19, 1902, certain heirs filed a bill to vacate the deed, and there was a decree in their favor on Feb. 10, 1905. A few days after this decree M. offered said will foi probate, and the same was, after trial on a caveat filed by the aforesaid heirs, admitted to probate. Thereupon, M. filed this bill to review the decree on the original bill, setting up the fact of the subsequent probate of the will. Held, that the bill of review should be dismissed because of laches, but without prejudice to the assertion of rights under the will. lb. The timeliness of a bill of review filed 14 months after the decree is not affected by the fact that an order of publication to bring in some of the defendants was not made until more than three years after the decree, one of the defendants having been served in time and having appeared and answered. Jordan v. Drake, 32 W. L- R. 501. Exceptions to general rule that before bill can be filed, decree must be obeyed and performed. Perkins v. Tyrer, 24 App. D. C. 447; 33 W. L R. 54. Refusal of motion to strike bill from files for failure of parties to per- form decree against them, equivalent of special permission to file bill without such previous performance. lb. One whose interest are in no way affected by the original decree is not a necessary party to a bill of review. Jordan v. Drake, 32 W. L. R. 501. Effect on appeal of omission of formal parties. See McGowan v. Blroy, 28 App. D. C. 86 ; 34 W. L. R. 455. When demurrer to bill of review filed on ground of error on face of decree is overruled, defendants are not entitled to plead over to the bill Perkins v. Tyrer; 24 App. D. C. 447 ; 33 W. L. R. 54. The introduction of newly discovered evidence under a bill of review to prove facts in issue on the former hearing, is not a matter of right, but of sound discretion in the courts, to be exercised cautiously and sparingly and only under circumstances making it indispensible to the merits and justice of the cause ; and a bill of review is properly dismissed where no new issue of fact is made, nor allegation that the discovery or presenta- tion of the facts was prevented by fraud or undue advantage by or on behalf of the opposite party. Osborne v. Davidson Mortgage Co., 8 App. D. C. 481; 24 W. L. R. 313. BILL OF REVIVOR. As to right of assignee of chose in action to file in own name. See Young V. Kelly, 3 App. D. C. 296 ; 22 W. L. R. 313. BILL OF SALE. An unrecorded and unacknowledged bill of sale to secure the pur chase price of property left in the possession of the grantors is void only as against bona fide purchasers for a valuable consideration, and cred- itors who may have dealt with the grantors on the faith of their owner- ship of the property. Construing Maryland act of 1729, ch. 8. Colbert V. Baetjer, 4 App. D. C. 416 ; 22 W. L. R. 763. BLOPGET CLAIM. See Champerty and Maintenance, Blue Prints — Bonds and Undertakings. 129 BLUE PRINTS. See Patents. BOARD OF AUDIT CERTIFICATES. The act of Aug. 13, 1894, directing the Treasurer of the United States to pay to the owners, etc., of all board of audit certificates redeemed by him in 3.65 bonds under the act of June 16, 1880, the residue of 3.35 per centum of unpaid legal rate of interests from the date of said cer- tificates to the date of approval of the redemption act, applies not only to certificates redeemed in 3.65 bonds, but also to those upon which judg- ment was obtained in the Court of Claims and paid out of the proceeds of sale of said bonds by the Treasurer under the Act of March 3, 1881. Roberts v. United States, 13 App. D. C. 38 ; 26 W. L. R. 375. The duty of paying such additional interest imposed upon the treasurer by the act of 1894 is purely ministerial, and mandamus will lie to compel its performance. lb. In such case, however, where it appears that the certificates were not surrendered in procuring judgments upon them, their surrender will be required as a condition precedent to the issue of the writ. lb. BOARD OF EDUCATION. See Public Schools. BOARD OF LABOR EMPLOYMENT. See Mandamus; Minis- terial Officers. BOARD OF MEDICAL SUPERVISORS. See Medical Supervi- sors. BOARD OF PUBLIC WORKS. See District of Columbia. BOARD OF SCHOOL TRUSTEES. See Public Schools. BOARDING HOUSES." Furnishing intoxicating liquors to boarders with meals is a sale within the meaning of the act of March 3, 1893, and punishable thereunder. Lauer v. Dis. of Col, 11 App. D. C. 453 ; 26 W. L. R. 72. BONA FIDE PURCHASER. See Assignment; Bills and Notes. BONDS AND UNDERTAKINGS. I. Execution. II. Construction of. III. Contract as Part of. IV. Estoppel of Surety. V. Liability on. VI. Of Government Contractors. VII. Official Bonds. VIII. Injunction Bonds. IX. Attachment Bonds. X. Of Executors and Administrators. XI. Appeal Bonds. XII. Release of Surety. XIII. Right of Action, on. XIV. Assignment of Breaches. XV. Evidence. XVI. Recovery on. XVII. Defenses. XVIII. In General. I. Execution. Evidence of the death of the subscribing witnesses to a bond and 130 Bonds and Undertakings. proof of their signatures will make a prima facia case of the due execu- tion of the bond. United States v. Boyd, 8 App. D. C. 440; 24 W. L. R. 298. The fact that a bond was imperfectly executed when presented for ac- ceptance, in that it contained no seals, and was returned to the principals for proper execution, raises no presumption against its genuineness, when afterwards it is produced with all the indications of genuine execution; and it is incumbent upon the principal in disputing it, to show that the seal was not affixed by him or by his authority. United States v. Howgate, 3 App. D. C. 277 ; 22 W. L. R. 345. Proof of the signature to a sealed instrument carries with it a pre- sumption of the genuineness of the seal and is prima facie proof of its due execution. lb. Where a bond bears a date of "the day of March, 1878" as the date of its execution, and also an indorsement of its acceptance on April 2, 1878, held, that the true date of the instrument was that of its delivery. lb. It may be averred in pleading and shown in proof that a bond was in fact made, executed and delivered at a date subsequent to that stated on its face. Dis. of Col. v. Camden Iron Works, 15 App. D. C. 198; 27 W. L. R. 463. II. Construction of. To an action on a bond securing the performance of a building con- tract, the surety pleaded in bar the failure of the plaintiff to furnish mantels as provided in the contract and also his failure to pay the total sum agreed for completing the houses. Held, that such provisions of the contract were covenants and not conditions and demurrers to the pleas were properly sustained. Mercantile Trust Co. v. Hensey, 27 App. D. C. 210; 34 W. L. R. 206. Under such a provision the principal and surety are bound to pay the amount fixed as liquidated damages without any proof of actual loss. lb. The binding force of an obligation voluntarily executed to the United States does not necessarily depend upon the existence of previous statutory authority therefor; but they may, as a body politic, within the sphere of their constitutional powers, and through the instrumentality of the de- partment to which these powers are confided, enter into contracts not prohibited by law, appropriate to the just exercise of these powers. United States V. Pumphrey, 11 App. D. C. 44; 25 W. L. R. 417. III. Contract as Part of. In an action on a bond conditioned upon the performance of a cop- tract, the bond and contract must be read together. Tyrer v. Chew, 7 App. D. C. 175; 23 W. L. R. 721. Incorporation by reference of contract into bond given by contractors with the United States pursuant to the act of Aug. 13, 1894. See Peake V. United States, 16 App. D. C. 415; 28 W. L. R. 438. IV. Estoppel of Surety. A surety who executes a bond and returns it to the principal or his agent for delivery to the obligee, is estopped to set up any condition, not Bonds and Undertakings. 131 known to the obligee, upon which his signature was obtained. United States V. Boyd, 8 App. D. C. 440 ; 24 W. L. R. 398. The recital in a bond that the principal had been duly appointed trustee to make sale, and the fact that while so acting he had made the sale and received but failed to account for the proceeds, will not estop the surety from denying the jurisdiction of the court appointing the trustee to de- cree the sale. Morse v. Hine, 29 App. D. C. 433 ; 35 W. L. R. 334. V. Liability on Bond. The givers of an undertaking cannot be held for any period not cov- ered thereby on the conjecture that they would have given a new under- taking had one been required. Their liability must be determined on the one actually given. Houghton v. Meyer, 208 U. S. 149. Where the obligation of the surety on a building contractor's bond is that it will protect the owner from all loss arising from the non-fulfill- ment by its principal of the covenants contained in the building contract, and the contract provides that, on failure to complete the buildings within the time agreed upon, the contractor shall pay to the owner a certain sum for each day thereafter the work shall remain unfinished as liqui- dated damages, the surety will be liable, to the same extent as the prin- cipal, for such damages. Mercantile Trust Co. v. Hensey, 27 App. D. C. 210; 34 W. L. R. 206. A bond provided that if, on sale of certain property, a three-tenths interest therein sold by the obligor to the obligee should realize less than $2,000, the obligor would pay to the obligee the difference between the sum realized and the $2,000. The property was sold under a deed of trust then on the property, and no part of the $2,000 realized. To an action on the bond defendant pleaded, setting up that the bond was executed and delivered upon the condition that it should become operative only in case of a sale of the property by the obligor himself, and not in case of a sale under the deed of trust ; and that the property having been sold under the deed of trust the bond never became operative. By another plea he set up in defense an offer made by him to the obligee, before sale of the property under the deed of trust, to protect it from sale by placing there- on a new deed of trust, but that the obligee refused to permit him to do so for the reason that the obligee himself intended to protect his interest in said property. Held, that the pleas were insufficient, and a motion for judgment for the amount of the bond and interest was properly granted. Bieber v. Cans, 24 App. D. C. 517; 33 W. L. R. 51. Where, under a power expressly reserved in a contract, the party letting the contract annuls it for breach thereof, neither the contractor nor the sureties on his bond are exonerated from liability for prior breaches of the contract. United States v. Maloney, 4 App. D. C. 505 ; 22 W. L. R. 785. As to liability of surety in undertaking in replevin on death of principal. See Corhett v. Pond, 10 App. D. C. 17; 25 W. L. R. 33. VI. Of Government Contractors. As to rule of construction governing liability of sureties on bond given by government contractor in pursuance of the act of Congress of 132 Bonds and Undertakings. Aug. 13, 1894. See Vermont Marble Co. v. Burgdorf, 13 App. D. C. 506; 27 -W. L. R. 35. Sureties on bond of government contractor given under act of Con- gress of Aug. 13, 1894, are not liable for price of coal furnished for use in operation of dredging machine. Chapman v. City Trust & C. Co., 23 App. D. C. 153; 32 W. L. R. 53. As to liability of sureties on bond of government contractor, for cost of repairs to machinery Briscoe v. City Trust, S. D. & Surety Co., 23 App. D. C. 155; 32 W. L. R. 53. As to what is "material supplied in the prosecution of the work," within the meaning of the act of Congress of Aug, 13, 1894, and the bgnd given thereunder. See Standard Oil Co. v. Surety Co., 30 W. L. R. 778 ; Chapman v. Trust Co., 31 W. L. R. 396. As to right of materialman to maintain suit on bond of contractor given in compliance with the act of Congress of Aug. 13, 1894. See American Bonding & Trust Co. v. U. S. to use of Lincoln, 15 App. D. C. 397; 27 W. L. R. 757. As to maintenance of action on bond of government contractor under act of Congress of Aug. 13, 1894. See Vermont Marble Co. v. Burgdorf, 13 App. D. C. 506 ; 27 W. L. R. 35. As to application of 73d rule to action against surety on bond given by contractor with the District of Columbia. See Fidelity & Deposit Co. v. Smoot, 20 App. D. C. 376; 30 W. L. R. 532. VII. Official Bonds. In an action against the sureties on a bond of a public officer, a judg- ment rendered against the principal for the amount of his defalcation is, when identified, evidence of the defalcation. United States v. Howgate, 3 App. D. C. 277; 22 W. L. R. 345. In an action on the bond of a public officer, proof that on failure to give the bond he would not have been permitted to retain his office, is not sufficient to show duress. lb. Although the bond of a public official recites that the office was created by law, it is immaterial, in an action on such bond, whether there is such a statute or not, if the bond was a voluntary one and intended to subserve a lawful purpose. Ih. It is not necessary that the requirement of a bond for the faithful per- formance of duty should be prescribed by statute. Dis. of Col. v. Ball, 22 App. D. C. 543; 31 W. L. R. 726. The regulation adopted by the Commissioners of the District under authority conferred by the act of April 23, 1892, requiring the inspector of plumbing to execute a bond to the District of Columbia in the sum of $5,000, with three sureties, conditioned for the faithful performance of the duties of his office, and for the benefit of all persons who may be ag- grieved by his acts of neglect, is a reasonable and valid regulation. lb. A person sustaining damage by reason of neglect of duty on the part of the inspector of plumbing is justified in law in putting his official bond in suit, and in using the name of the District of Columbia for that purpose. lb. As to sufficiency of declaration in action on bond of inspector of plumb- Bonds and Undertakings. 133 ing for losses sustained by the purchasers of houses which had not been properly inspected during course of construction and for entering upon the premises and disconnecting such houses from the general sewerage system. lb. A recovery upon a bond with a plain and certain condition will not be denied because another condition of the bond is uncertain, Moses v. United States, 166 U. S. 571. An official bond may be valid although not directed by statute when its consideration or condition is not violative of law or contrary to any statute. Moses v. United States, 166 U. S. 571. An official bond is voluntary although it may have been reluctantly given on demand of a superior officer who has the right to make its giving a condition to the holding of the office. lb. That larger sums were disbursed by an officer than was anticipated when an official bond was given is no defense to an action thereon. lb. VIII. Injunction Bonds. The undertaking given to obtain a restraining order under § 718, Rev. Stat, must be construed in the hght of that section and it necessarily is superseded by an order or decree granting an injunction and thereupon expires by its own limitation, notwithstanding such order or decree may subsequently be reversed. Houghton v. Meyer, 208 U. S. 149. Invalidity of restraining order issued without the requirement as to filing undertaking having been complied with. Drew v. Hogan, 35 App. D. C. 55; 33 W. L. R. 488. Effect of defendants appearing and pleading to the merits as waiver of requirement of equity rule 42. lb. Necessity for filing undertaking in a suit for injunction. lb. IX. Attachment Bonds. An attachment bond is properly made to one of several co-defendants against whose property an attachment before judgment is issued on the ground that he is a non-resident. Bradford v. Brown, 31 W. L. R. 696. X. Of Executors and Administrators. In action against the sureties on the bond of an administrator, a judg- ment or decree against the administrator is prima facie evidence of the debt. American Bonding &• Trust Co. v. Paynter, 23 App. D. C. 535; 32 W. L. R. 362. As to requirement of act of Maryland of 1720, relative to action on bond of administrator. See lb. As to sufficiency of foundation for action on bond of administrator. See lb. XI. Appeal Bonds. No bond is required on an appeal by the warden of the jail from an order discharging a prisoner on habeas corpus. Leonard v. Rodda, 5 App. D. C. 256; 23 W. L. R. 229. The District of Columbia as appellant is not required to give bond for costs or to stay execution and its appeal is perfected by the entry thereof. Dis. of Col. V. Roth, 18 App. D. C. 547 ; 29 W. L. R. 702. 134 Bonds and Undertakings. Where the bond given on suing out a writ of error is for costs only, the writ of error does not operate as a supersedeas. McLane v. Cropper, 5 App. D. C. 276; 23 W. L. R. 115. Bond for costs not required when supersedeas bond given. Dancy v. Clark, 24 App. D. C. 487 ; 33 W. L. R. 18. Supersedeas bond given on appeal from decree, which appeal was stip- ulated to be heard with appeal from further decree entered on auditors report, held sufficient to sustain the entire appeal. Darlington v. Turner, 24 App. D. C. 573; 33 W. L. R. 114. The Supreme Court of the District has power to direct mandamus to issue to a justice of the peace to require him to consider the sufficiency of an appeal bond, and if found sufficient to approve the same. Church v. Fidelity & Dep. Co., 13 App. D. C. 264; 26 W. L. R. 676; Bundy v. U. S. ex rel. Darling, 25 App. D. C. 459 ; 33 W. L. R. 434. As to remedy when justice of the peace has wilfully and wrongfully refused to approve an appeal bond See Fidelity & Deposit Co. v. Beck, 13 App. D. C. 237; 26 W. L. R. 104. As to validity of judgment by default against surety on undertaking on appeal from justice of the peace. See Tenney v. Taylor, 1 App. D. C. 223; 21 W. L. R. 649. As to the time within which an undertaking on appeal from a justice of the peace must be given. See Schrot v. Schoenfeld, 23 App. D. C. 421; 32 W. L. R. 230. As to bond to be given on appeal from judgment of justice of the peace on a trial of right of property. See Davidson v. Mitchel, 34 W. I,. R. 309. As to necessity for giving supersedeas bond on appeal from justice of the peace in landlord and tenant proceeding. See Dowling v. Buckey, 27 App. D. C. 205; 34 W. L. R. 286. As to sufficiency of supersedeas bond in landlord and tenant proceedings. See lb. As to sufficiency of appeal bond. See Parsons v. Littie, 28 App. D. C. 218; 35 W. L. R. 46. XII. Release of Surety. A surety is not discharged by the fact that the signature of his co-surety, which precedes his own, was forged. United States v. Boyd, 8 App. D. C. 440; 24 W. L. R. 298. In an action against principal and sureties, a discontinuance as against the principal will not release the sureties and preclude prosecuting the suit against them. Starr v. United States, 8 App. D. C. 552; 24 W. L. R. 502. Failure by the obligees in a bond given by a partnership, conditioned for payment for merchandise purchased within four months from the date of each purchase, to notify the sureties of the fact of non-payment, will not discharge the sureties, where the bond contains no require- ment that such notice be given. Clark v. Gerstley, 26 App. D. C. 205; 33 W. L. R. 758. Mere delay in enforcing the obligation of the principals will not dis- charge the sureties. lb. A binding contract between the creditor and the principal debtor, with- Bonds and Undertakings. 135 out the surety's knowledge or consent, for the extension of the time of payment, will discharge the surety; but the extension of credit must not only be upon a valuable consideration, but for a fixed and definite time. lb. A plea that a surety on a bond has been discharged by an extension of the time of payment must show that the extension of payment has been agreed upon, in a way binding upon the principal, for a fixed and certain period; and a plea alleging merely that, without the surety's knowledge or consent, the plaintiff "'extended the time of payment for a valuable con- sideration,'' is insufficient. lb. Misrepresentations by an employer to a fidelity insurance company as to the state of the accounts of his employe and as to the amount of money entrusted to him and the periods of accounting, will avoid a bond issued by such company, especially where the statements of the employer are made a condition precedent and the basis of the bond. Waring v. United States Fidelity, etc., Co., 24 App. D. C. 119 ; 33 W. L. R. 394. As to release of sureties. See United States v. West, 8 App. D. C. 59; 24 W. L. R. 133. XIII. Right of Action on. The United States may maintain an action on a bond voluntarily made to them, though not required by law, conditioned for the faithful per- formance of a contract with certain Indians by which the obligors agreed, among other things, to pay the Indians a stated compensation and within a specified time to return them to their reservation without expense to the United States ; and in such action recovery may be had of sums due the Indians as wages and damages for breach of the condition and also of sums expended by the United States in returning the Indians to their respective reservations on failure of the obligors to do so. United States V. Pumphrey, 11 App. D. C. 44; 25 W. L. R. 417. In order to maintain such action it is not necessary that the United States have a beneficial interest in the performance of the conditions. The seal imports a consideration, and action on the instrument cannot be maintained at law except in the name of the obligees. lb. If there is a condition annexed to a writing obligatory for the benefit of the obligor, and the obligee is by the terms of it to do the first act, he must, do, or concur in doing, the first act before he can demand the penalty. Tyrer v. Chew, 7 App. D. C. 175 ; 23 W. L. R. 721. The acceptance of a note for the amount of bonds loaned, upon failure of the borrower to return them, suspends all right of action on the bonds until the maturity of the note. Metzerott v. Ward, 10 App. D. C. 514; 25 W. L. R. 296. Where a decree for the sale of real estate is void for want of jurisdic- tion in the court entering it, the bond given by the trustee appointed to make the sale is without force as a statutory obligation; nor can an ac- tion be maintained against the sureties on such bond as a common law obligation. Morse v. Hine, 29 App. D. C. 433 ; 35 W. L. R. 334. As to right of action on bond running to the United States. See lb. 136 Bonds and Undertakings. XIV. Assignment of Breaches. To entitle a plaintiff to recover damages for breaches of the condition of a bond, it is necessary under the statute of 8 and 9 W. 3, ch. 11, § 8, that breaches be assigned, and such breaches must show the extent ol the damnification suffered. United States v. Maloney, 4 App. D. C. 505; 22 W. L. R. 785. Where, in an action on a bond, non est factum or fraud is pleaded, and breaches of the condition of the bond are not assigned in the declaration, plaintiff may suggest the breaches upon the record, in making up the issue to be tried on the plea, and proceed to have damages assessed by the same jury that determines the issue on the plea. The suggestion of breaches may be entered at any time before trial as well as after judg- ment for plaintiff on the issue raised by the plea. lb. In an action on a bond, the specific condition of which is that the obligor will enter into contract, if his bid is accepted, and perform the service in accordance with the contract, the declaration assigned as a breach that he did not perform the service, held to state a cause of action. Starr v. United States, 8 App. D. C. 552 ; 24 W. L. R. 502. XV. Evidence. Recovery on a sealed bond, complete on its face and unambiguous in terms, containing an unconditional promise to pay a sum certain on the happening of an event which has occurred, cannot be defeated by showing a parol agreement that it should become operative upon a condition not expressed on its face. Bieber v. Cans, 24 App. D. C. 517 ; 33 W. L. R. 51. In the absence of any allegation in an action on a bond, that an al- leged contemporaneous agreement between the principals and obligees was to be incorporated into the bond or referred to therein, as creating a dependence of one upon the other, and that it was omitted by mistake, parol evidence is not admissible to establish such agreement and breach thereof so as to discharge sureties. McGuire v. Gerstley, 26 App. D. C. 193; 33 W. L. R. 754. An "employer's statement," the contents of which were expressly made conditions precedent and the basis of a fidelity insurance bond, held properly admitted in evidence on behalf of defendant in an action on the bond, notwithstanding such paper was in a mutilated condition, it being shown that the mutilation was accidental and without motive, and the con- tents of the missing parts being proved by defendant and admitted by plaintiff. Waring v. United States Fidelity, etc., Co., 34 App. D. C. 119; 32 W. L. R. 394. In an action upon a bond plaintiff may show a waiver of one of the stipulated conditions precedent in lieu of performance. Guilford Granite Co. V. Harrison Granite Co., 23 App. D. C. 1 ; 31 W. L. R. 759. Where a bond given to secure the performance of a contract contained, among others, a condition requiring notice in writing to the surety therein of ajiy default by the principal, and the declaration in an action thereon alleged performance by the plaintiff of all the conditions of the bond and contract, evidence tending to show a waiver of such condition is inad- Bonds and Undertakings. 137 missible under the pleadings, and its admission constitutes reversible error. lb. In such case the plaintiff, instead of pleading performance of the con- dition, should allege the facts constituting the waiver of the condition re- quiring the notice in writing in excuse of non-performance. lb. In an action by the United States on the bond of a disbursing of- ficer, a duly certified and authenticated transcript from the Treasury Department, containing a copy of the bond and a statement purporting to be a statement of account between the principal and the United States, showing a balance due from him to the United States as of a certain date, held properly admitted in evidence pursuant to the provisions of § 886, R. S. U. S. Goff V. United States, 22 App. D. C. 512 ; 31 W. L. R. TIO. Such transcript need not include an account of all the transactions of the disbursing officer with the United States ; but only the transactions connected with the appropriations for which he is in default need be shown. lb. In an action by the United States on the bond of E, a disbursing of- ficer, a transcript from the Treasury Department showing a balance due of $9,303.70 was offered in evidence. E. testified that at the time the de- partment agents took possession of his office and safe he had in the safe sufficient to cover the alleged deficiency. One of the department agents (the other having died), testified positively that only $32 in cash and $1,668 in vouchers were in the safe at the time. There was also a conflict in the evidence as to the time when and the circumstances under which the agents took charge of the office. The trial court told the jury that the transcript made a prima facie case for plaintiff, and the burden was on the defendants to show that E. had not been allowed in his accounts the amounts in the safe at the time it was taken in charge by the agents of the plaintiff. Held, that the question of the contents of the safe at the time it was taken charge of by the agents of the United States was for the jury to determine. lb. Declarations of a deceased attesting witness to a bond are not ad- missible to show that the signature attested was a forgery. United States V. Boyd, 8 App. D. C. 440; 24 W. L. R. 298. The recitals in a bond sued on, and all material traversable matter set forth in the breaches assigned, which are not traversed, are to Be taken as admitted facts. United States v. Moloney, 4 App. D. C. 505 ; 22 W. L. R. 785. XVI. Recovery on. In an action on a bond where the amount claimed is Hquidated, and the defendant's pleas are insufficient, it is not necessary to have the damages assessed by a jury, but the court may properly enter judgment for the amount claimed. Bieber v. Cans, 24 App. D. C. 517 ; 33 W, L. R. 51. The recovery on a bond is not limited to the amount of the penalty, but may exceed it to the extent of interest accruing by reason of default in payment when the obhgee's right' to recover accrued. Goff v. United States, 22 App. D. C. 512; 31 W. L. R. 710. In an action on a bond given to secure performance of a building con- tract, to recover damages for defective work, the measure of damages is 138 Bonds and Undertakings. the difference between what the houses were worth as in fact completed and what they would have been worth if completed as required by the con- tract ; and in such case the obligee in the bond is not precluded from recovering such damages from the surety by the fact that the surety, as the holder of notes secured by deed of trust, caused the same to be fore- closed and the houses sold immediately after their completion, no op- portunity being given the owner to sell, rent, or otherwise utilize them. Mercantile Trust Co. v. Hensey, 27 App. D. C. 210 ; 34 W. L. R. 206. Unless expressly provided for by the contract, counsel fees incurred in defending proceedings for the enforcement of mechanics' liens cannot be recovered as legal damages in an action by the owner of the property against the principal and surety in a bond given by the contractor to se- cure a performance of a building contract which stipulated that the prop- erty shall, when completed, be delivered to the owner free of all liens or right to file liens. Donovan v. Johnson, 13 App. D. C. 356 ; 26 W. L. R. 714. XVII. Defenses. Where a contract contains several distinct understandings or promises, following each other in the necessary order of the prosecution of the entire work, for the performance of each of which a separate price was agreed upon, and a bond given to secure the performance of the contract, by its terms related to and covered each and every one of these under- takings, the surety in the bond can not complain of a payment made to the principal in accordance with the letter of the contract, nor of the voluntary discharge of an independent part thereof when the same is its equivalent, where no detriment to the interests of the surety results. Guilford Granite Co. v. Harrison Granite Co., 23 App. D. C. 1; 31 W. L. R. 759. Where in an action on such bond, such partial rescission of the con- tract was pleaded as a special ground of defense, alleging that it was with- out the knowledge or consent of the surety, and the plaintiff replied, al- leging consent and also the fact that it lessened instead of increasing the surety's liability, and the evidence, without contradiction, tended to show the complete knowledge and acquiescence of the surety, through its agent, and that the bond was not delivered until the day such partial re- scission was made ; held, that the issue thus raised was properly submitted to the jury, with appropriate instructions. lb. In an action on a bond, a plea by the sureties setting up that they had been damaged by acts of the principals, is bad, whether pleaded by way of set-off or recoupment. McGuire v. Gerstley, 26 App. D. C. 193 ; 33 W. L. R. 754. Set-off as defense to action on bond. lb. XVIII. In General. Conditional delivery of sealed'bond can not be made to party to it with- out waiving benefit of condition, unless condition appears on face of in- strument. Bieber v. Gans, 24 App. D, C. 517 ; 33 W. L. R. 51. As to jurisdiction in equity of suit for cancellation of bonds given to Books — Bounties. 139 secure performance of contracts. See Pechstein v. Smith, 14 App. D. C. 27; 27 W. L. R. 168. As to obligation on bond required by the mechanics lien law. See Anglo-American S. & L. Assn. v. Campbell, 13 App. D. C. 581; 27 W. L. R. 2. As to right of holder of bonds of corporation to intervene in suit to foreclose deed of trust securing same. See Parsons v. Little, 28 App. D. C. 218; 35 W. L. R. 46. As to security for costs to be given by non-resident plaintiff in justice's court and on appeal. See Hayward v. Tschiffely, 32 W. L. R. 777. As to effect of failure of assignee for the benefit of creditors to give bond required by Maryland law. See Keane v. Chamberlain, 14 App. D. C. 84; 27 W. L. R. 98. A bond is not invalidated because the sole obligor is also a joint obligee. Myers v. Cottrell, 25 W. L. R. 720. The act of Maryland of 1763, ch. 23, authorizes the assignment of bonds. Myers v. Cottrell, 25 W. L. R. 720. The assignee of a bond secured by mortgage is not required to resort to the mortgaged real estate before proceeding to enforce the bond. lb. See also Appeal and Error; Principal and Surety. BOOKS. Books published at stated intervals and in consecutive numbers are not periodicals under § 14 of the act of Congress of March 3, 1879. Houghton V. Payne, 194 U. S. 88; 32 W. L. R. 313. Periodicals and books distinguished. lb. BOOK ENTRIES." See Evidence. BOOKMAKING. Bookmaking on horse races is a game of chance within the meaning of the act of Jan. 31, 1883. Miller v. United States, 6 App. D. C. 6 ; 23 W. Iv. R. 209. BOUNDARIES. A deed executed by the commissioners under authority of the acts of' Congress of March 2, 1881, and April 1, 1882, although by its terms pur- porting to grant to the middle of the channel of the Potomac River, can have no operation to convey title to land below high water mark. Dis. of Col. V. Cropley, 23 App. D. C. 232; 32 W. L. R. 97. As to boundaries of lots authorised to be sold under acts of Congress of March 2, 1881, and April 1, 1882. See lb. Admissibility of parol evidence to explain a latent ambiguity in a lease as to the bounds of the leased premises. See Okie v. Person, 23 App. D. C. 170; 32 W. L. R. 103. BOUNTIES. The provisions of the act of Oct. 1, 1890, providing for the payment of bounties to the producers of sugar, was repealed by par. 182 of the act of Aug. 28, 1894, and all claims to bounty cancelled thereby. Miles Co. V. Carlisle, 5 App. D. C. 138; 23 W. L. R. 33. 140 Boycott — Bribery. Article I, § 8, of the Constitution, does not confer upon Congress the power to provide for the payment of bounties to private individuals ; and the provisions of the act of Oct. 1, 1890, for the payment of bounties to sugar producers are therefore void. lb. BOYCOTT. A boycott defined to be a combination of many to cause a loss to one person by coercing others against their will to withdraw from him their beneficial business intercourse through threats that, unless those others do so, the many will cause serious loss to them. Buck Stove Co. v. American Federation of Labor, 35 W. L,. R. 797. See also Labor. BREACH OF CONTRACT. See Contracts. BREWERS. As to application of act of Congress of July 1, 1903, imposing upon brewers and their agents a license tax. See Beitzel v. Dis. of Col, 21 App. D. C. 49; 31 W. L. R. 82. BRIBERY. Section 5451, R. S., defining and prescribing the punishment for bribery of an official of the United States, held to include an attempt to induce an officer to do or to omit any act in violation of his lawful duty on any question, matter, cause, or proceeding which may at any time be pending, or which may by law be brought before him in his official capacity. Benson v. United States, 27 App. D. C. 331; 34 W. L. R. 366. An indictment alleging that, on a date named, an investigation of the unlawful appropriation of public lands by named persons (defendant being one of them), was ordered by the Secretary of the Interior; that such investigation was immediately begun and carried on by special agents under instructions from said Secretary, to whom their reports were to be transmitted, that if the contents of said reports were dis- closed to the persons whose acts were being investigated the objects of the investigation would be defeated, and it was therefore ordered that • said reports be kept secret ; that while said investigation was pending, defendant paid to an official of the Land Office (who was charged, among other enumerated duties, with the supervision of the work of special agents and consideration of their reports relating to public lands, and with the charge of legal proceedings for the cancellation of unlawful and fraudu- lent entries upon public lands), to induce him to reveal to defendant the contents of said report when the same should come into his hands in his official capacity in violation of his lawful duty, etc., held, to sufficiently charge an offense under § 5451, R. S. lb. An indictment under § 5451, R. S., contained eight counts, in seven of which the ofifer of money was alleged to have been made to the same person in the same official relation to induce the same violation of of- ficial duty in respect of the same matter, while in the eighth count the only variation was in the fact that defendant was alleged to have given money to another official. Held, that the joinder of the offenses in one indictment, but in separate counts was authorized by § 1024, R. S. lb. . Bricklayers — BufLDiNGS. 141 Every incidental, yet necessary duty, incumbent upon an official to perform need not be designated by statute; but the head of a department of the Government may prescribe regulations of his office and of its several bureaus and for the custody of papers and reports in investiga- tions ; and a breach of such regulations by an official of the department would be an act in violation of his lawful duty within the meaning of § 5451, R. S. lb. As to sufficiency of indictment under § 5501, Rev. Stat. See United States V. Beavers, 34 W. L. R. 63. A check is an obligation within meaning of § 5501, Rev. Stat. lb. BRICKLAYERS. See Taxation and Assessment. BRIDGES. Under the act of 1892, all bridges of the District, except the aqueduct bridge across Rock Creek, are under the control of the District Com- missioners, and the Secretary of War is without power to grant a rail- way permission to lay tracks on the aqueduct bridge over the Potomac. Smith V. Dis. of Col, 12 App. D. C. 33 ; 25 W. L. R. 824. An information for violation of the act of July 29, 1892, in destroying public property by tearing up the foot-walk of the aqueduct bridge, need not allege that the act was done without the consent of the District Com- missioners, lb. One who, without the consent of the District Commissioners, attempts to tear up the floor-walk of the aqueduct bridge across the Potomac, for the purpose of laying a railroad track thereon, is guilty of a violation of the act of Congress of July 39, 1893, and hable to the penalty thereby imposed, and it is no defense that he was acting under the orders of his employer in the belief of the truth of that employer's claim of license. lb. As to duty of railroad in respect of plan of construction of its bridges. See Weaver v. Balto. &■ Ohio R. R. Co., 3 App. D. C. 436 ; 22 W. L. R. 393. See also Navigable Waters. BROKERS. As to constitutionality of act of Congress of July 1, 1902, imposing li- .cense fees on brokers. See Lappin v. Dis. of Col, 33 App. D. C. 68 ; 31 W. L. R. 308. As to acts of ticket brokers constituting fraud on railroad from which it is entitled to injunctive relief. See Peiiitsylvania R. R. Co. v. Beekman, 30 W. L. R. 715. See Commission' Merchants; Insurance; RKal Estate Agents. BUILDINGS. As to what constitutes a building within the 'meaning of the act of Feb. 2, 1899, known as the "Smoke Law.'' See Sinclair v. Dis. of Col, 20 App. D. C. 336 ; 30 W. L. R. 515. As to construction of act of March 1, 1899, relative to removal of dan- gerous and unsafe buildings. See Dis. of Col v. Mattingly, 28 App D. C. 176; 34 W. L. R. 670. 142 Building Associations. As to removal of party wall under act providing for the removal of unsafe buildings. See lb. Liability of owner for negligence of contractor in removal of old material. Swart v. Justh, 24 App. D. C. 596 ; 33 W. L. R. 149. As to right of Commissioners of District to act through the agency of the Inspector of Buildings in granting licenses. See McBride v. Ross, 13 App. D. C. 576; 27 W. L. R. 402. See also Building Regulations. BUILDING ASSOCIATIONS. An unincorporated building association is a partnership, the directors being the managing partners and the stockholders the general partners ; and the powers exercised by the former are not to be measured by the strict rule applying in the case of directors of a corporation. Woodward V. Nelligan, 19 App. D. C. 550. The payment to and acceptance by the secretary of an unincorporated building association, acting without the scope of his powers as defined by the articles of association, of payment of a debt due by a member to the association, held, under the circumstances of the case, to bind the associa- tion and entitle such member to a release of the deed of trust securing the indebtedness. lb. Whenever the by-laws of a building and loan association are uncertain in their meaning and bearing upon contracts entered into with persons applying for membership, or there is uncertainty or ambiguity in the terms of the special contract for a loan, when considered in connection there- with, the construction most favorable to the subscriber will be adopted. Building Ass. v. Olmstead, 16 App. D. C. 387 ; 28 W. L. R. 409. The borrowing member of a building and loan association virtually ceases to be a member and ceases to be a stockholder, in the ordinary sense of that term, as soon as he transfers his stock to the association, although the transfer is designated as a pledge. Armstrong v. United States B. & L. Assn., 15 App. D. C. 1 ; 27 W. L. R. 351. The by-laws of a building association provided that when shares of stock in a series should have reached the full value of $200 each, or loans to the full amount of every share had been made, the shares should all be paid off and the series discharged. It appeared that all shareholders in a given series had been paid off except those in the name of a borrow- ing shareholder. Held, that inasmuch as the profits of the association were applicable equally to the shares of borrowing as well as non-borrow- ing shareholders, and all the shares must mature at the same time, the shares held by him must be regarded as having matured, and he was en- titled to have a release of his property from the deed of trust given to se- cure his loan, but not in this suit to a repayment to him of the money claimed by him to have been overpaid. Whelpley v. Ross, 25 App. D. C. 207; 33 W. L. R. 371. A building association making a building loan is not obliged to see that the money loaned is applied in payment of claims for labor and materials; and no liability on its part for such claims is created by the fact that it made payments to the owner after as well as before notice of such Building Associations. 143 claims and the filing of liens therefor. Anglo-American S. & L. Assn. V. Campbell, 13 App. D. C. 581 ; 37 W. L. R. 2. As to effect of agreement of association to advance a building loan, to impress with a trust in favor of mechanics' lienors, a final instalment of the loan retained by the association. See 76. Where a deed of trust securing a loan by a building and loan asso- ciation to one of its members (who also assigned to the association the shares of stock held by him), which loan was evidenced by 78 notes, one payable on or before a certain day of each month until all were paid, provided that upon full payment of all of said notes, and interest, and all proper fines, costs, charges, etc., the property should be released to the grantor, or his heirs or assigns, a purchaser of the property subject to the incumbrance held entitled to have said deed of trust released upon payment of the last of the unpaid notes. Building Association v. Olm- stead, 16 App. D. C. 387 ; 28 W. L. R. 409. A claim that the trust deed also secured the payment of possibly ac- cruing dues after the discharge of the last note secured by it, and would remain in force until such times as the dues upon the shares advanced upon and pledged on said loan, with the earnings to which they would be entitled, have made them worth their maturity value, denied, as being ut- terly opposed to the express terms and conditions of said deed of trust. Mere reference to the charter and by-laws can not give the instrument this additional scope. lb. A covenant contained in a trust deed, that the grantor would "keep and perform all promises and engagements made and entered into with said association according to the intent and meaning of its by-laws and articles of association," can not be interpreted as changing the obvious intent and purpose of the deed of trust. lb. That a contract of loan by an association was ultra vires cannot be availed of as a defense to a suit brought to obtain the release of the deed of trust securing the loan as, if the contract is void, the deed of trust, which is part of it, must fall with it. lb. The insolvency of a building and loan association and the appointment of a receiver therefor does not have the effect of abrogating a contract between the association and a borrowing member which provides for the repayment of advances made to such member, in monthly instalments for a given time. Armstrong v. United States B. & L,. Assn., 15 App. D. C. 1; 37 W. L. R. 351. It is the duty of the receiver of a building association to demand and receive monthly payments at the various times specified, in a contract with a borrowing member, and so long as such payments are made there is no occasion and no reason for any accounting between the association and the borrower. lb. A stipulation in a building association mortgage providing for a month- ly sum called premium, in addition to the legal rate of interest, during the continuance of the mortgage, is usurious, and in an accounting between a borrowing member and an association sums so paid should be credited on account of the principal debt. Building Assn. v. Baker, 19 App. D. C. 1 ; 29 W. L. R. 783 ; Building Assn. v. Fiske, 20 App. D. C. 514 ; 30 W. L. R. 761. 144 BuiivDiNG Contracts — Building Regulations. Section 692 of the Code providing that premiums exacted from borrow- ing members shall not be deemed usury, has no retroactive effect. lb. In settlements between a borrowing shareholder and an insolvent building and loan association, the former is charged with the amount actually received by him, with legal interest, and credited with all pay- ments made, whether by way of dues, interest or premiums, according to the rvile governing partial payments. Croissant v. Empire State Realty Co., 29 App. D. C. 638; 35 W. L. R. 350. Where a borrowing member of a building association, in view of the insolvency of the association, offers to come to an accounting with the receiver upon the theory of anticipating the further performance of his contract, the only accounting proper is that which would charge him with the present money value of the aggregate instalments of money remain- ing to be paid by him — that is, the amount of money which, if placed at interest, would at the expiration of the prescribed period be equal to the aggregate of such remaining instalments, increased by the interest on the several separate instalments. Upon payment of the amount so found due, the borrower will be entitled to have the indebtedness canceled and his property released. Armstrong v. United States B. & L. Assn., 15 App. D. C. 1; 27 W. L. R. 351. As to distinction between building and loan associations and ordinary joint stock companies. See Ih. As to law governing contracts of loan. See Croissant v. Empire State Realty Co., 29 App. D. C. 638; 35 W. L. R. 350. As to taxes payable by. See Dis, of Col. v. Glass, 27 App. D. C. 576; 34 W. L. R. 467. BUILDING CONTRACTS. See Contracts. BUILDING REGULATIONS. One building a party wall in execution of a permitted plan of improve- ment upon his own lot may regulate its length at pleasure. The adjacent owner is, however, not concluded by the other's choice, but may build at his own pleasure within the limitations of the public regulations, and in doing so may use the wall of his neighbor for the whole or a part of its length, and may prolong it in either direction. Hutchins v. Munn, 22 App. D. C. 88; 31 W. L. R. 344. Where one of two joint owners of a party wall finds it insufficient for the purposes of a new building, § 74 of the Building Regulations applies, and the costs of removal and rebuilding of the wall are to be borne by the party receiving the benefit from the change. The act of March 1, 1899, has no application to such a case. Dis. of Col. v. Mattingly, 28 App. D. C. 176; 34 W. L. R. 670. As to appUcation of act of March 1, 1899, relative to removal of unsafe structures. See lb. As to dangerous condition of party wall justifying removal and re- building by municipal authorities and assessment of cost against owner. See lb. As to validity of § 57 requiring party walls to be not less than 13 inches in thickness. See Smithson v. Ashford, 34 W. L. R. 374. BuiivDiNG Regulations. 145 One who cut a door in a partition wall between his store and an ad- joining theatre witliout first obtaining a permit therefor from the build- ing inspector, violated §§ 20, and 182, of the building regulations, and was properly convicted thereof in the police court. Mertz v. Dis. of Coi., 18 App. D. C. 434; 29 W. L. R. 515. The requirement that in order to obtain a permit for the erection of a building the lot upon which it is proposed to erect tjie building must have a depth of at least fifty feet, is not within the power to make and en- force building regulations conferred upon the Commissioners of the District oi Columbia by the act of Congress of June 14, 1878 (20 Stat. 131). Macfarland v. U. S. ex rel. Miller, 18 App. D. C. 554; 29 W. L. R. 753. Where buildings proposed to be erected, conform in respect of materials, safety and healthfulness to the building regulations proper, and permission is refused only on the ground that the lots were less than fifty feet in depth, such refusal is a denial of a right of property; and the issuance of a permit under such circumstances being a purely ministerial act can be enforced by a writ of mandamus. lb. In the trial of an information for failure to remove a wall decided by the inspector of buildings to be dangerous, the judgment of the inspector is not final and conclusive; the notice to remove is only prima facie evidence of the dangerous condition, and the owner may controvert that evidence ; and judgment should be given according to the weight of the evidence. Shoemaker v. Bntwisle, 3 App. D. C. 252 ; 22 W. L. R. 316. In the hearing of an information for failure to remove a wall decided by the inspector of buildings to be dangerous, the police court has full power to decide the question of dangerous condition. lb. As to power of court of equity to enjoin proceedings in police court brought to enforce penalty prescribed by building regulations. See lb. Defendant, as owner of adjoining lots 20 and 23, erected a dwelling on lot 20, placing the division wall 4^ inches on each lot, the entire cost of the wall being paid by him. He thereafter conveyed lot 20 to D., who conveyed to plaintiff. Subsequently he erected a dwelling on lot 23, and used the division wall so constructed and paid for by him to the extent of the 4J^ inches resting on lot 23. A demand by plaintiff for one-half the value of said wall being refused, she sued to recover the amount. It was held that the case was not within either the terms or the reason of sec- tion 62 of the building regulations of this District, and that the defendant was not liable. Priest v. Talbott, 16 App. D. C. 422 ; 28 W. L. R. 407. Such wall became a party wall in a particular sense when the building was erected on lot 23 ; but it was a party wall divided longitudinally into two moieties, each subject to a cross-easement in favor of the other moiety, as means of support to the adjoining house. lb. As to whether § 62 of the building regulations applies to the county of Washington outside of the city; and, if so, whether the act of Congress authorizing the regulation, and the regulation itself, to that extent is not unconstitutional as being an attempt to take private property for private purposes. See lb. Section 166 of the building regulations does not authorize the destruc- tion of a division hedge by one property owner, much less a hedge entirely 146 Burden of Prooi'. upon the premises of the adjoining owner. Slye v. Guerdrum, 29 App. D. C. 550; 35 W. Iv. R. 340. BURDEN OF PROOF. While the burden is on the plaintiff to establish the allegations of his declaration by a preponderance of proof, such allegations may be estab- lished by the testimony on behalf of defendant or by his admissions. Hartman v. Ruby, 16 App. D. C. 45 ; 28 W. L. R. 155. In a suit by a wife for the exoneration of her estate from that of her husband, from a mortgage placed thereon for the benefit of her husband where the defense is that the money was not for the husband's benefit, or that it was for the benefit of the wife, the burden of proof is on the husband or those representing his estate. Shea v. McMahon, 16 App. D. C. 65; 28 W. L. R. 203. In a suit for specific performance of a contract for the sale of real estate, made by one of several joint owners, the burden of proof is on complainant to show clearly and satisfactorily and beyond a reasonable doubt that such owner had authority from his co-owners to enter into the contract, or that they subsequently ratified it. Waters v. Ritchie, 3 App. D, C. 379; 22 W. L. R. 361. A sworn allegation in a bill to set aside a deed of trust sale, that the deed of trust was not executed by the person it purports to have been executed by, will not shift upon defendants the burden of proving the due execution of the instrument. Crutchfield v. Hewett, Z App. D. C. 373; 22 W. L. R. 127. As to the burden of proof, in an action by a broker for commissions for procuring a purchaser for land, relative to the ability of the purchaser to consummate the sale. See Dotson v. Milliken, 27 App. D. C. 500; 34 W. L. R. 334. In actions founded upon negligence the burden of proof is on the plaintiff; and the burden of proving a negative should not be imposed upon defendant. Gas Light Co. v. Eckloff, i App. D. C. 174; 22 W. L. R. 656. In an action to recover for personal injuries caused by negligence, it is incumbent upon defendant, as a matter of defense, to establish the contributory negligence of plaintiff, unless it is shown in the evidence of plaintiff. Balto. &■ Pot. R. R. Co. v. Webster, 6 App. D. C. 182; 23 W. L. R. 322. Where the presumption of res ipsa loquitur arises the onus of explana- tion is in the party charged with negligence. Kight i: Metropolitan R. R. Co., 21 App. D. C. 494; 31 W. L. R. 302. As to burden of proof of absence of negligence on part of keeper of animals feriE natures inflicting injury. See Jackson v. Baker, 24 App. D. C. 100; 33 W. L. R. 430. As to burden of proof of negligence and contributory negligence in action for personal injuries. See Atchison v. Wills, 21 App. D. C. 548; 31 W. L. R. 311; City & Sub. Ry. v. Svedborg, 20 App. D: C. 543; 30 W. Iv. R. 823; Wash. A. & Mt. V. Ry. Co. v. Chapman, 26 App. D. C. 472 ; 34 W. L. R. 30. Creditors attacking a sale as fraudulent, must prove purchaser's notice JBURDEN 01* PrOOI'. 147 of vendor's fraudulent intent. Morimura v. Samaha, 35 App. D. C. 189 ; 33 W. L. R. 258. On one claiming to be an innocent purchaser where sale has been made in fraud of creditors. lb. The burden of proof is upon a party seeking to establish a claim founded upon an alleged embezzlement and to set aside a deed by the alleged em- bezzler, to establish his claim and that the deed was the result of fraud and collusion. Droop v. Ridenour, 11 App. D. C. 324; 35 W. L. R. 481. As to burden of proof of validity of conveyances made to one occupying a fiduciary relation to the grantor. See Holtzman v. Linton, 27 App. D. C. 342; 34 W. L. R. 303. As to burden to prove bona fides of conveyance to wife attacked as in fraud of husband's creditors. See Turner v. Gottwals, 15 App. D. C. 43 ; 27 W. L. R. 373. In an action on an insurance policy, the burden of proof of suicide, set up as a defense, is on defendant. Casey v. National Union, 3 App. D. C. 510; 22 W. L. R. 433. A plea of set-off in an action on a bond shifts the burden of proof to the defendant. United States v. West, 8 App. D. C. 59; 24 W. L. R. 133. As' to burden of proof of power of member of non-trading partnership to bind other members by commercial paper in firm name. See Presbrey v. Thomas, 1 App. D. C. 171; 21 W. L. R. 659. As to survivorship of testatrix or beneficiary under her will. Paul v. Hulick, 18 App. D. C. 9; 29 W. L. R. 171. The burden of proof is upon him who asserts the death of a person standing in the way of his inheritance. Posey v. Hanson, 10 App. D. C. 496; 25 W. L. R. 299. In ejectment by the descendants of the maternal grandfather of the person last seized, the burden is on the plaintiffs to prove the extinction of all preferred lines of descent. lb. Even in the absence of any special relation between the parties, where one gains a great and manifest advantage over another by a voluntary in- strument, the burden is upon the one receiving such benefit to show the fairness and honesty of such transaction. O'Connell v. Koob, 16 App. D. C. 161 ; 28 W. L. R. 287. As to burden of proof of a resulting trust in favor of a husband on conveyance of real estate to wife. See Dorsey v. Manning, 15 App. D. C. 391; 27 W. L. R. 788. As to burden imposed on trustee to show fair dealing. See Ferguson v. Bateman, 1 App. D. C. 379 ; 21 W. L. R. 723. As to burden of proof in action for malicious prosecution. See Spitzer V. Preidldnder, 14 App. D. C. 556 ; 27 W. L. R. 368. As to burden of proof that land, for trespass upon which a municipality is sued, is a public highway by prescription. See Dis. of Col. v. Robinson, 14 App. D. C. 512 ; 27 W. L. R. 302. In a will contest the burden is on the caveators to overcome a pre- sumption of testator's mental capacity. Shelley's Will, 34 W. L. R. 801. As to onus of proving revocation of will. See Throckmorton v. Holt, 180 U. S. 552; 29 W. I.. R. 221. 148 Business — Carnai, KNO\^ii.EDGE. On the trial of issues framed on a caveat to a will, which involve the questions of residence of decedent and whether any portion of his per- sonal estate was in the District at his death, the burden of proof is upon the caveatee. Overby v. Gordon, 13 App. D. C. 393 ; 26 W. L. R. 732. Of undue influence. See Towson v. Moore, 11 App. D. C. 377; 35 W. L. R. 706 ; Shelley's Will, 34 W. L. R. 801. See also Attachment; Bonds; Common Carribrs; Evidence; Intox- icating Liquors; Negligence; Patents. BUSINESS. Statutes imposing restrictions or levying tax upon business are to be strictly construed. Lockwood v. Dis. of Col, 34 App. D. C. 569; 33 W. L. R. 131. BY-LAWS. As to power of incorporated dental society to make. See Bryant v. Dental Society, 26 App. D. C. 461 ; 34 W. L. R. 19. See also Beneficial, Associations; Building Associations; Corpora- tions. CABS AND CAB-STANDS. See Police Regulations ; Vehicles. CANALS. See Highways. CANCELLATION. Of assignments of claim against a foreign government. See Campbell V. Dexter, 17 App. D. C. 454; 29 W. L. R. 61. CAPIAS AD SATISFACIENDUM. See Process. CAPITOL. Restaurants in the capitol building are not within the provisions of the act of March 3, 1893, regulating the sale of intoxicating liquors. Page V. Dis. of Col., 20 App. D. C. 469 ; 30 W. L. R. 758. CARNAL KNOWLEDGE. In a prosecution under the act of February 9, 1889, for carnal knowl- edge of a female under the age of 16 years, proof is not required of the commission of the offense on the day charged in the indictment, or upon any other day certain; but, as in criminal prosecutions generally, proof of any day before the finding of the indictment and within the period of limitations is sufficient. Yeager v. United States, 16 App. D. C. 356; 28 W. L. R. 554. In a prosecution for carnal knowledge of a female under the age of 16, under the act of Feb. 9, ]889, the prosecutrix is, by force of the law, to be considered a victim and not an accomplice ; and an instruction that her testimony must be corroborated on all material points because of her being considered an accomplice is properly refused. lb. Whether since the act of Feb. 9, 1889, a female under the age of 16 years can be punished for fornication under the act of March 3, 1887, quaere; but assuming she may be so punished, she does not thereby be- come an accomplice in the commission of the offense of carnal knowledge. Jb. Carriers — Certificates. 149 CARRIERS. See Common CarriiSrs. CARRIAGE BLOCKS. An ordinary carriage block held not an unlawful obstruction in street. Wolf V. Dis. of Col, 21 App. D. C. 464; 31 W. L. R. 257. CASE. When action on the case will lie for spoken words not constituting tech- nical slander. See Cain v. Telephone Co., 3 App. D. C. 546 ; 22 W. L. R. 413. CAVEAT. As to authority of Register of Wills to enter dismissed. See Estate of Obold, 30 W. L. R. 345. As to duty of executor or administrator c. t. a, to defend will. See Mclntire v. Mclntire, 14 App. D. C. 337 ; 27 W. L. R. 198. See Patents; Whls. CAVEAT EMPTOR. The doctrine of caveat emptor has no application in the case of a sale under execution of property of which the judgment debtor had only an equitable title. Starr v. United States, 8 App. D. C. 552; 24 W. L. R. 502. . Rule applicable to the letting of a house where there is no express warranty as to its safety and fitness for occupation. Howell v. Schneider, 24 App. D. C. 532; 33 W. L. R. 82. CEMETERIES. Right of life tenant of private cemetery to grant burial permits. Hill V. Moore, 33 W. L. R. .549. Capacity of foreign cemetery company to take devise of land in the District of Columbia. Inglehart v. Inglehart, 26 App. D. C. 209; 33 W. L. R. 711. CERTIFICATES. As to sufficiency of certificate of acknowledgment of deed under § 493 of Code. See Ohio Nat. Bank v. Berlin, 36 App. D. C. 218 ; 33 W. L. R. 726. As to conclusiveness of architect's certificate. See Trust Co. v. Hensey, 27 App. D. C. 210 ; 34 W. L. R. 306. Certificate of incorporation denied record where the statement of busi- ness to be carried on was "the operation of railways." Dancy v. Clark, 24 App. D. C. 487; 33 W. L. R. 18. Invalidity of certificate of incorporation naming five persons as trustees, three only of whom sign and acknowledge it. /&. As to effect of inclusion in certificate of incorporation of several dis- tinct classes of business. See lb. Recordation of invalid certificate of incorporation will npt be com- pelled by mandamus. 76. Certificate of sale for taxes invalidated by insufficient report of sale made by collector of taxes to recorder of deeds. Kann v. King, 25 App. D. C. 182; 33 W. L. R. 147. 150 Certified Copies — Certiorari. As to sufficiency of certificate of title as evidence in action to establish title by adverse possession. See Johnson v. Thomas, 33 App. D. C. 141; 32 W. L. R. 69. See Board o? Audit Csrtificates ; Deeds. CERTIFIED COPIES. As to admissibility in evidence of certified copy of decree for divorce and alimony. See Droop v. Ridenour, 11 App. D. C. 224; 25 W. L. R. 482. CERTIORARI. I. Office and Application. II. Petition for. III. Parties Respondent. IV. Issuance. V. Scope of Review. VI. Return to Writ. VII. Costs. I. Office and Application. Certiorari is not a writ of right, but one to be issued in the discretion of the court and then only for the purpose of effecting substantial jus- tice. Dis. of Col. V. Brooke, 29 App. D. C. 563; 35 W. L. R. 318. Certiorari cannot be made to perform the office of an appeal or writ of error. Hendley v. Clark, 8 App. D. C. 165 ; 24 W. L. R. 197 ; Fidelity & Deposit Co. V. Beck, 12 App. D. C. 237; 26 W. L. R. 104; Anderson v. Morton, 21 App. D. C. 444 ; 31 W. L. R. 274. It is only where it is plainly shown that the proceedings before a jus- tice of the peace are infected with some irregularity rendering them ab- solutely void, that a certiorari will issue to bring them up for review by the Supreme Court of this District. Bradshaiv v. Earnshaw, 11 App. D. C. 495; 25 W. L. R. 809. The proceedings of a justice of the peace in a suit of which he has jurisdiction both of the subject-matter and of the parties, cannot be re- viewed upon certiorari where the irregularities alleged consist in the fact that a jury was empaneled before a formal joinder of issue, and that he proceeded to hear evidence of the defendant and receive a verdict and enter judgment for defendant, the plaintiff declining to participate in the trial. /&. Certiorari will not lie from the Supreme Court of the District to oust a justice of the peace from jurisdiction properly acquired. Hendley v. Clark, 8 App. D. C. 165 ; 24 W. L. R. 197. Certiorari will not lie for the purpose of removing a cause for trial from an inferior court, to another court of concurrent jurisdiction, even though it be a superior court and a court of general jurisdiction. Ih. A writ of certiorari served upon a justice of the peace after judgment rendered by him, is ineffectual to remove the cause into the Supreme Court of the District or to serve the purpose of an appeal. lb. Where a justice of the peace has jurisdiction of subject matter and parties, certiorari is not the proper remedy for gross errors and irregu- larities committed by him. Fidelity & Deposit Co. v. Beck, 12 App. D. C. 237; 26 W. L. R. 104. As to whether irregularities in a trial befote a justice of the peace Certiorari. i^l can be inquired into by certiorari. See Carver v. O'Neal, 11 App. D. C. 353 ; 25 W. L. R. 704. An erroneous ruling on a plea to the jurisdiction under § 5 of Code, by a justice of the peace, cannot be corrected by certiorari. Anderson v. Morton, 21 App. D. C. 444 ; 31 W. L. R. 274. The civil courts are without jurisdiction to review by certiorari a judg- ment of an ecclesiastical court deposing a priest from the ministry. Sat- terlee v. Williams, 20 App. D. C. 393 ; 30 W. L. R. 694. The Court of Appeals is without power to issue the original common law writ of certiorari to remove proceedings in a criminal case pending in the police court. Sullivan v. Dis. of Col., 19 App. D. C. 210; 30 W. L. R. 55. Certiorari will not issue from the Court of Appeals to the clerk of the police court to bring up any record or copy of record. Bx parte Dries, 3 App. D. C. 165 ; 22 W. L. R. 301. Certiorari is the proper means to prevent a United States Commissioner from discharging as a poor convict, under § 1042, Rev. Stat., one impris- oned under sentence of the police court of the District. United States v. Mills, 11 App. D. C. 500; 26 W. L. R. 89. The writ of certiorari cannot be used to test the right of a party to act as a United States Commissioner under an appointment by the Supreme Court of the District, or the authority of that court to make the appoint- ment, lb. The writ will issue from the Court of Appeals to the Supreme Court of the District, to have certified to it an order requiring an appellee in an appeal from a justice of the peace, who had not been served with sum- mons to appear in that court, to appear and submit himself to the juris- diction of the court or suffer judgment by default. Slater v. Willige, 16 App. D. C. 364; 28 W. L. R. 454. As to power of Supreme Court D. C. to grant certiorari to review pro- ceedings of Army Board of Examinations. See Reaves v. Ainsworth, 28 App. D. C. 157; 34 W. L. R. 542. Certiorari will not lie, on ground of concurrent jurisdiction, to remove from the Juvenile Court into the Supreme Court of the District, a prose- cution for failure to provide for minor child. United States v. Moss, 35 W. h. R. 36. The Court of Appeals has no power, by certiorari or otherwise, to cor- rect bill of exceptions. Keely v. Moore, 22 App. D. C. 1; 31 W. L. R. 290. The writ of certiorari can not be used to try the question of the validity of the appointment of an incumbent of a judicial office ; but this must be done, if at all, in a proceeding instituted directly for the purpose and wherein the de facto officer may have an . oportunity to defend himself and his claim of right. Anderson v. Morton, 21 App. D. C. 444; 31 W. L. R. 274. The writ of certiorari is a proper remedy in proper cases for relief against illegal assessments ; but to entitle a party applying to the favorable exercise of the court's discretion it must be shown as a ground for the writ that wrong and injustice will be suffered if it be not granted; and the 152 Certiorari. application must be made without unreasonable delay. Guy v. Dis. of Col., 25 App. D. C. 117; 33 W. L. R. 165. Certiorari will not lie at the instance of a defendant in a case of which, the criminal and police courts have concurrent jurisdiction to remove from the latter into the former. Dis. of Col. v. Libbey, 9 App. D. C. 321; 24 W. L. R. 726. As to use of writ to transfer case from one court to another of concur- rent jurisdiction. See Hendley v. Clark, 8 App. D. C. 165 ; Brown v. Slater, 23 App. D. C. 51 ; 32 W. L. R. 18. As to scope and effect of writ. See Dis. of Col. v. Burgdorf, 6 App. D. C. 465; 23 W. L. R. 354. As to office and application of writ. See Bond v. Carter Hardware Co., 15 App. D. C. 72; 27 W. L. R. 462. II. Petition for. Affidavits may properly be incorporated into a petition for a writ of certiorari or made part thereof, and may also be annexed to the return; but independent affidavits constituting no part either of the petition or return are improper. Chamberlain v. Edmonds, 18 App. D. C. 332 ; 29 W. L. R. 395. III. Parties Respondent. To a writ of certiorari issued by the Supreme Court of the District to a justice of the peace to bring up the record of proceedings before the justice, the justice of the peace is the sole respondent and the only person required or entitled to make return thereto. Chamberlain v. Edmonds, 18 App. D. C. 332; 29 W. L. R. 395. It is irregular to make a party interested in the cause before the justice a party respondent to the writ; though in an appropriate case it may be proper for the justice to include in his return to the writ the cause of such party so far as it has been made to appear to him. lb. As to who is the respondent to a petition for certiorari. See Anderson V. Morton, 21 App. D. C. 444; 31 W. L. R. 274. IV. Issuance. Certiorari from the Supreme Court of the United States to the Court of Appeals of the District can be issued only when a writ of error can- not, and then only in cases of gravity and general importance, fields v. United States, 205 U. S. 292. As to right of accused where police court has erred in taking jurisdic- tion of offense. See Defter v. Kimball, 7 App. D. C. 499 ; 24 W. L. R. 82. The granting or refusing of writ in cases of alleged illegal assessment of taxes is within the sound discretion of the court. To entitle party to writ he must show that he will suffer wrong and injury in his right of property if the writ be not granted; and the application for it must be made without unreasonable delay. Padgett v. Dis. of Col., 17 App. D. C. 255; 28 W. L. R. 868. Where upon an ex parte application the writ is issued it is within the power of the issuing court to quash it before any return is made thereto, upon motion of the defendant, and it is proper to allow the respondent Certiorari. 153 to file and for the court to consider an affidavit in support of such mo- tion, lb. It was proper to quash a writ of certiorari where not only was there no showing that wrong and injustice would be suffered if the writ were not granted, and also a delay of sixteen years in applying therefor, but the petition on its face showed that there was danger of wrong and injustice being done if the writ were granted. Guy v. Dis. of Col, 25 App. D. C. 117; 33 W. L. R. 165. Where a writ of certiorari procured by a defendant in a suit instituted before a justice of the peace to remove the case into the Supreme Court of the District, on the ground of concurrent jurisdiction, is quashed for any defect or insufficiency in the petition, and the cause remanded to the justice of the peace to be proceeded with according to law, the defendant may not thereafter procure the issue of another writ of certiorari on the same identical ground, or any other; and a second writ of certiorari issued under such circumstances is properly quashed. Brown v. Slater, 33 App. D. C. 51; 33 W. L. R. 18. Where a writ of certiorari was issued at the instance of the defendant, without objection by plaintiff, to remove a case from a justice of the peace, into the Supreme Court of the District, which had concurrent jurisdiction, a judgment of the latter court in favor of plaintiff, is not void, notwithstanding the issue of the certiorari was irregular and the writ would have been quashed on motion by plaintiff. Warner v. Jenks, 12 App. D. C. 104; 36 W. L. R. 131. V. Scope of Review. The Supreme Court of the District will not in a proceeding by cer- tiorari, re-weigh the evidence produced on trial before police trial board. Walsh V. Macfarland, 34 W. L. R. 78. A writ of certiorari to remove a case from a justice of the peace into the Supreme Court of the District for trial, operates upon and requires to be returned the entire case, whether all the defendants have been served with process or not; and if further process be required it must issue from and be returned to the Supreme Court. Bradford v. Brown, 22 App. D. C. 455; 31 W. L. R. 696. The Supreme Court of the District has the right, on a return to cer- tiorari, to set aside the judgment of a justice of the peace for irregular- ities resulting in injury to the plaintiff. Adriaans v. Johnson, 24 W. L. R. 581. It is the time of the service of the writ of certiorari, and not of its issue that, in the absence of fraud must determine the jurisdiction of the justice to whom directed, to proceed. Hendley v. Clark, 8 App. D. C. 165; 34 W. L. R. 197. VI. Return to Writ. Where the return of a justice of the peace to a writ of certiorari issued to procure the vacation of a judgment entered by him in pursuance of the verdict of a jury because of alleged irregularities in the proceedings, denies the occurrence of any such irregularities, the statements of the return, for the purpose of the hearing of an appeal from an order quash- 154 Chali^enges — Champerty and Maintenance;. ing the writ, must be accepted as true. Carver v. O'Neal, 11 App. D. C. 353; 25 W. L. R. 704. On certiorari to quash a tax assessment, the return of the municipal of- ficers to the petition is as much a part of the record as the assessment records, and its allegation that petitioner had notice of the assessment must be taken as true, although the assessment records do not so show. Dis. of Col. V. Brooke, 29 App. D. C. 563 ; 35 W. L. R. 318. VII. Costs. Where the original record on appeal is sufficiently full, the costs of certiorari, including transcript fees and charge for printing, will be taxed against appellee, even though the decree appealed from be reversed. Mc- Lane v^ Cropper, 5 App. D. C. 376; 23 W. L. R. 115. CHALLENGES. As to number of peremptory challenges to which defendants in a prose- cution for conspiracy are entitled. See Lorenz v. United States, 24 App. D. C. 337; 33 W. L. R. 833. CHAMPERTY AND MAINTENANCE. The statute 33 Henry VIII., ch. 9, is not in force in this District. Matthews v. Hevner, 3 App. D. C. 349; 33 W. L. R. 108. The statutes of Edw. I. and III. and 33 Henry VIII., were declarator}' of the common law. While these statutes are obsolete in this District, a purely champertous contract, or one savoring strongly of champerty, is contrary to public policy and not enforceable. Johnson v. Van JVyck, 4 App. D. C. 394; 33 W. L. R. 713. As to whether an agreement between the owner of a translation, who had failed to take out a copyright, and a publisher, who had unlawfully done so, that the latter should bring suit for infringement in his own name, the expense to be borne by the owner and any recovery to be for their mutual benefit, is not champertous. See Koppel v. Downing, 34 W. L. R. 343. A champertous agreement made by the plaintiff in an action for per- sonal injuries with some third person for the maintenance of the action is no bar to a recovery. Rockwell v. Capital Traction Co., 35 App. D. C. 98; 33 W. L. R. 338. An agreement by an attorney to prosecute at his own expense a suit to recover land in which he personally has and claims no title or interest, present or contingent, in consideration of receiving a certain proportion of the recovery, is void; and a deed expressing such champertous agree- ment upon its face, is unlawful and passes no title, even though another is joined with the attorney as trustee. Peck v. Heurich, 167 U. S. 624; 25 W. L. R. 595 ; affirming 6 App. D. C. 373 ; 33 W. L. R. 389. An assignment by a life-annuitant of all her interest in a trust fund, to those entitled thereto after her death, is not champertous because such remaindermen have an immediate right of action against the trus- tees for loss occurring to the torpus of the fund through his negligence. Johns V. Herbert, 2 App. D. C. 485 ; 22 W. L. R. 281. Heirs at law of a decedent entered into an agreement with B. whereby he was to institute suits for the recovery of real estate of said decedent Chancery Sai,es — Chattels. 155 and also claims against the Government. The costs and expenses of the litigation were to be borne entirely by B., in consideration of which he was to receive one-half of whatever was recovered. To raise funds to prosecute the suits B. organized a trust or syndicate, the capital of which consisted of B.'s one-half interest in the recoveries, and shares were issued by such syndicate. Subsequently, the heirs, by deed in trust which referred to and made part thereof certain other instruments in- cluding the agreement with B., conveyed all the property to J., and B. likewise conveyed to him his interest in recoveries in trust to pay over to a trust company for distribution among the shareholders. Held, in an ac- tion of ejectment by J. to recover certain of the real estate, that the deed to him was void as champertous and was properly excluded when offered in evidence. Johnson v. Van Wyck, 4 App. D. C. 294; 23 W. L. R. 713. As to whether champerty and maintenance are punishable offenses in the District, and render void acts done in their commission. See Mat- thews V. Hevner, 3 App. D. C. 349; 33 W. L. R. 108. CHANCERY SALES. See Sales. CHANGE OF BENEFICIARIES. See Beneficiai, Associations. CHANGE OF VENUE. As to causes for which a change of venue is allowable. See In re Gassenheimer, 24 App. D. C. 313; 33 W. L. R. 808. As to remedy for refusal of justice of the peace to transfer case to another justice. See Fidelity & Deposit Co. v. Beck, 12 App. D. C. 337; 26 W. L. R. 104. CHARGE TO JURY. See Instructions to Jury. CHARITABLE USES AND TRUSTS. A provision in a will whereby a testatrix directs her executors to in- vest safely a certain sum for all time to keep in repair her vault in a cemetery, cannot be sustained as a charitable use. Brown v. Bsterhazy, 35 W. L. R. 478. As to validity of charitable trust under statute providing against crea- tion of perpetuities, and in respect of beneficiaries. See Ruppert v. Wolf, 37 W. L. R. 724. See Trusts and Trustees. CHARITIES. As to the power of Congress to appropriate money for the maintenance of public charities. See Roberts v. Bradfield, 13 App. D. C. 453; 36 W. L. R. 343. CHARTER PARTIES. See Admiralty. CHARTERS. As to powers of Congress under reservation of right to alter, amend or repeal in charter of railroad. See Metropolitan. R. R. Co. v. Macfarland, 30 App. D. C. 421 ; 30 W. L. R. 710. CHATTELS. A lien upon chattels may be waived by the holder of it by an act in pais. The Richmond v. Cake, 1 App. D. C. 447 ; 21 W. L. R. 819. 156 Chattui, Mortgagb; — Citizenship. As to attachment of chattels which are subject to a deed of trust. See lb. Restraint of transfer and rights of possession. Whitson v. Columbia Phonograph Co., 18 App. D. C. 565 ; 29 W. L. R. 804 ; 98 O. G. 418 ; C. D. 1902, p. 497. TimeHness of claim to chattels levied on as property of judgment debtor. Brown v. Petersen, 25 App. D. C. 359; 33 W. L. R. 310. CHATTEL MORTGAGE. See Mortgages and Deeds of Trust. CHECKS. A check is an obligation within meaning of § 5501, Rev. Stat. United States V. Beavers, 34 W. L. R. 62. See Bills and Notes. CHESAPEAKE AND POTOMAC TELEPHONE COMPANY. See Telephones. CHIEF JUSTICE OF SUPREME COURT, D. C. As to duties in extradition proceedings. See Hayes v. Palmer, 21 App. D. C. 450; 31 W. L. R. 271. CHILDREN. See Infants; Parent and Child. CHIMNEY. See Words and Phrases. CHINESE EXCLUSION ACTS. See Aliens. CHOSES IN ACTION. As to assignment of interest in. See Sinccll v. Davis, 24 App. D. C. 218; 32 W. L. R. 746. As to assignability in respect of right to sue by assignee. See Arm- strong Whithworth & Co. v. Norton, 15 App. D. C. 223; 27 W. L. R- 414. As to right of assignee to maintain bill in equity to recover demand. See Glenn v. Sothoron, 4 App. D. C. 125; 22 W. L. R. 649. CHURCH. See Ecclesiastical Law. CIRCUMiSTANTIAL EVIDENCE. See Evidence. CITATION. As to what constitutes notice of an appeal making citation unneces- sary. See Leonard v. Rodda, 5 App. D. C. 256; 23 W. L. R. 229. As to waiver of failure of appellant to have citation issued and served upon appellee. See Bowling v. Buckey, 26 App. D. C. 266; 33 W. L. R- 774. As to service of citation on appeal. See Raub v. Hurt, 24 App. D. C. 211; 33 W. L. R. 701. See also Appeal and Error; Process. CITIZENSHIP. As to materiality of citizenship of Indian in proceeding by mandamus to compel action by executive officer. See Hitchcock v. Bigboy, S2 App. D. C. 275; 31 W. L. R. 556. See Naturalization. Civil War— Claims Against the United States. 157 CIVIL WAR. As to effect of Civil War to revoke a power of attorney. See Wil- liams V. Paine, 7 App. D. C. 116; 23 W. L. R. 636. CIVIL SERVICE. The rules and regulations adopted by the Civil Service Commission which seek to restrict the power of removal by executive officers for causes other than refusal to contribute to partisan objects, are ultra vires and void. Woods v. Gary, 35 W. L. R- 591. The power of removal of a clerk in the classified civil service of the United States not limited by the civil service act of Jan. 16, 1883 (32 Stat. 413), except for the single cause of failure to contribute money or service to a political party. Taylor v. Taft, 34 App. D. C. 95 ; 33 W. L. R. 443. Under Rule 5 of civil service rules of 1903, a native of Porto Rico, owing allegiance to the United States, and otherwise qualified, is enti- tled to registration by board of labor employment at United States Navy Yard, and mandamus will lie to compel the granting of his application therefor. U. S. ex rel. Rodriguez v. Bowyer, 25 App. D. C. 131; 33 W. L. R. 164. The clause of the second section of the civil service act of Jan. 16, 1883, requiring applications for examination to contain a statement under oath, is not to be construed as requiring a sworn statement as to the residence of the applicant only, but applies as well to other matters con- sidered relevant and proper by the Civil Service Commission with the approval of the President. Johnson v. United States, 36 App. D. C. 128; 33 W. L. R. 679. A false statement by the applicant in his application for examination to the effect that he had not before been employed in the Government service, is perjury, within the meaning of § 5393 R. S., and punishable as provided therein. lb. Sufficiency of indictment for falsely' making and forging an application for examination. United States v. Johnson, 36 App. D. C. 136; 33 W. L. R. 776. As to power of courts to review action by head of executive department in removing a clerk in the classified civil service. See Taylor v. Taft, 34 App. D. C. 95 ; 33 W. L. R. 443. CLAIM AGENTS. The term as used in par. 46, § 7, of the personal tax law of 1902, is too uncertain and vague to be enforced. Lockwood v. Dis. of Col., 34 App. D. C. 569; 33 W. L. R. 131. CLAIMS. See Patents. CLAIMS AGAINST THE UNITED STATES. Debts due from the United States have no locality at the seat of Gov- ernment and furnish no foundation for a local administration on the es- tate of a decedent domiciled elsewhere. Estate of Coit, 3 App. D. C. 246; 33 W. L. R. 319. A debt due from th? United States has no locality in the District of 158 Claims Against the United States. Columbia until after an appropriation has been made and nothing remains to be done but the issuance of a check therefor by the Treasurer of the United States. Roberts v. Consaul, 24 App. D. C. 551 ; 33 W. L. R. 98. The executor or administrator of a creditor of the Government, duly appointed in the State of decedent's domicil, has full authority to collect and discharge his decedent's claim at any place where the Government may choose to pay it. Estate of Coit, 3 App. D. C. 246; 22 W. L. R. 319. As to validity of contract for services in prosecuting claim which con- tains an assignment of interest therein. See Owens v. Wilkinson, 20 App. D. C. 51; 30 W. L. R. 436. Services in procuring legislation by Congress looking to the reference and payment of claims are not the subject of lawful contract. Consaul v. Cummings, 24 App. D. C. 36; 33 W. L. R. 470. An agreement between attorney and client for the prosecution by the former in the Court of Claims of a claim of the latter against the United States, providing for payment to the attorney, in consideration of his services, of one-half the amount collected, and making said fee a lien upon any draft issued in payment of the claim, is not a violation of the provisions of §§ 3437 and 3447 R. S., and such an agreement will give the attorney a lien upon the draft issued in payment of the claim enforceable in equity. Roberts v. Consaul, 24 App. D. C. 551; 33 W. L. R. 98. It was not the purpose of § 3477, Rev. Stat., to aid those who had claims against the United States in disregarding the just demands of their creditors and any court of competent jurisdiction may make necessary and appropriate orders to prevent the claimant from withdrawing the pro- ceeds of his claim from the reach of creditors; provided they do not interfere with functions of proper officers of the Government nor obstruct their legal actions. Sanborn v. Maxwell, 18 App. D. C. 245 ; 29 W. L. R. 607. Where complainants were employed by defendant, who had a contract with certain Indians to collect claims against the Government, to assist him in the work, defendant agreeing that their fees should be satisfied out of the fees due him under the contract and constitute an interest therein to that extent, such agreement does not come within the prohibition of § 3477, Rev. Stat., as the United States was without interest. lb. The Treasurer of the United States is charged with the duty of mak- ing immediate payment of an appropriation by Congress in settlement of a claim against the Government, and he may be compelled to do so by mandamus, or through a mandatory writ of injunction he may be com- pelled to pay it to a receiver appointed by the court. Roberts v. Consaul, 24 App. D. C. 551; 33 W. L. R. 98. Where a check is about to be issued by the Treasurer of the United States in payment of a claim against it, and an attorney has a lien upon it for his fee in prosecuting the claim, under contract with his client, and the client is a non-resident, and refuses either to pay the fee or to give the attorney a power to receive the draft, but endeavors to obtain possession thereof and thus deprive the attorney of his fee, the Supreme Court of the District has jurisdiction, in a suit by the attorney to which Clh;rgymen — Cloud on Title. 159 the client and the Treasurer of the United States are made defendants, to appoint a receiver for the fund and authorize him to demand and re- ceive the same ; though until the client shall have been made a party to the suit by due service of process upon him it will not be proper to issue an order requiring the Treasurer to deliver up the fund to the receiver. lb. Draft in settlement of claim held personal property. Jones v. Ruther- ford, 26 App. D. C. 114; 33 W. L. R. 498. A contract between an attorney and one having a claim against the United States, expressly giving the attorney a lien upon any check which might be issued by the United States in settlement of the claim, is not within meaning of § 3477, Rev. Stat., prohibiting assignments of claims. lb. The making of sub-contracts by a Government contractor is not an assignment of claims within meaning of § 3477, Rev. Stat., nor a trans- fer of contracts within § 3737. Manning v. Ellicott, 9 App. D. C. 71; 24 W. L. R. 439. CLERGYMEN. See Eccwsiasticai, Law. CLERK OF COURT. The clerk of court has nothing to do with a bill of exceptions save to file it as part of the record of the case after it has been settled and signed by the trial justice. If he accepts an unsettled bill he does it as the agent of the party and not of the justice. Johnson-Wynne Co. v. Wright, 28 App. D. C. 375; 35 W. L. R. 3. As to duty relative to docket entries in ejectment suits. See Arm- strong V. Ashley, 22 App. D. C. 368 ; 31 W. L. R. 439 ; affirmed in 204 U. S. 272. As to enforcement of duty to receive a party's declaration of intention to become naturalized. See Opisso v. Young, 31 W. L. R. 276. Duty as to transcript of record. See Davis v. Harper, 14 App. D. C. 298; 27 W. L. R. 156. Power to administer oaths in attachment. See Nat. Wall Paper Co. V. Haller, 24 W. L. R. 650. CLOSING OF STREETS. See Strebts and Sidewalks, CLOUD ON TITLE. A cloud on title is an outstanding claim or incumbrance, which, if valid, would affect or impair the title of the owner, and which on its face has that effect, but which can be shown by extrinsic evidence to be in- valid or inapplicable to the estate in question. Welden v. Stickney, 1 App. D. C. 343; 21 W. L. R. 731. A deed executed and recorded by a stranger to the title is not such a cloud as of which a court of equity will take cognizance of a suit to remove. lb. A deed void on its face does not constitute a cloud on title which equity will remove. Mayse v. Gaddis, 2 App. D. C. 20 ; 22 W. L. R. 46. An order void on its face will not constitute a cloud on title. Monon- gahela Bridge Co. v. Taft, 34 W. L. R. 278. i6o Clubs — Cohabitation. A vague and adroitly worded assertion of right, accompanied by threats of litigation, will create a cloud on the title to letters patent sufficient to sustain a bill in equity by the patentee to remove the cloud and to justify the granting of a temporary injunction. Columbia Sand Dredging Co. V. Miller, 20 App. D. C. 245; 30 W. L. R. 469. A cloud on title can be created by matter not of record. /&. The maintenance of assessments for years prior to accrual of title under a tax deed, as undischarged liens on the property, and refusal to cancel them when requested, constitutes a cloud upon title and a court of equity will decree their cancellation. Dis. of Col. v. Hufty, 13 App. D. C. 176; 26 W. L. R. 507. The question of whether the record of a deed reads "lot seventy" or "lot twenty," is one of fact determinable at law, and not in equity in a proceeding to remove cloud on title. Mayse v. Gaddis, 2 App. D. C. 20; 23 W. L. R. 46. A delay of seventy-four years in bringing suit to remove a cloud on title constitutes laches for which a bill will be dismissed. lb. As to laches barring right to maintain bill to remove cloud on title. See Knox v. Gaddis, 1 App. D. C. 336; 21 W. L. R. 742. An allegation in a bill filed by a grantee to remove a cloud on title, that he is the owner in fee simple, under a deed duly executed and de- livered by the defendant, is a sufficient allegation of possession. Dis. of Col. V. Hufty, 13 App. D. C. 175; 26 W. L. R. 507. In dismissing a bill to remove a cloud on title on the ground that the deed complained of does not constitute a cloud, the decree should declare the nullity of such deed. Welden v. Stickney, 1 App. D. C. 343; 21 W. L. R. 731. As to right of resort to a court of equity to have removed a cloud on title created by an illegal assessment. See Handley v. Macfarland, 34 W. L. R. 114. As to nature of proceeding authorized by § 111 of Code. Johnson v. Thomas, 23 App. D. C. 141; 32 W. L. R. 69. CLUBS. As to exclusive right to use of name. See Original La Tosca Club v. La Tosca Club, 23 App. D. C. 96 ; 33 W. L. R. 82. An incorporated social club has the right to make by-laws, even in the absence of express statutory power, and to exercise the power of amotion. De Yturbide v. Metropolitan Club, 11 App. D. C. 180 ; 25 W. L. R- 463. A member of an incorporated social club charged with an offense against his corporate duty can only be tried by the constituted corporate au- thorities, under the by-law applicable; and where such trial is regularly conducted and the judgment arrived at is in good faith the courts may not interfere therewith. lb. A determination by the corporate authorities in such case is presumed to have been fairly and bona fide made. lb. COHABITATION. As to condonation by husband of fraud perpetrated by wife in con- CoLLATBRAi. Attack — Combinations. i6i cealing the fact of her pregnancy by another at the time of marriage. See Lenoir v. Lenoir, 24 App. D. C. 160; 33 W. L. R. 456. COLLATERAL ATTACK. A collateral attack on a judicial proceeding is an attempt to avoid, de- feat, or evade it, or to deny its force and effect, in some manner other than in a direct proceeding for its review and correction of errors. Latney V. United States, 18 App. D. C. 265; 29 W. L. R. 363. One appearing and pleading to an information and submitting to be tried thereon without objection cannot be heard to deny its legal suf- ficiency in a collateral proceeding. lb. A question of errors or defects in a proceeding upon which a conviction is founded will not be entertained in a collateral proceeding by habeas corpus. United States v. Davis, 18 App. D. C. 280. The determination of facts by the Land Office under authority of Con- gress is conclusive against collateral attack. Riverside Oil Co. v. Hitch- cock, 21 App. D. C. 252; 31 W. L. R. 174. Of judgment or order entered without notice of revival of proceeding after discontinuance. See Collins v. McBlair, 29 App. D. C. 354; 35 W. L. R. 243. Of action of police court. Latney v. United States, 18 App. D. C. 265 ; 29 W. L. R. 363. See also Courts; Habeas Corpus; Indictment and Information; Judgments and Decrees. COLLATERAL SECURITY. See BitLs and Notes. COLLECTION OF GARBAGE. See Police Regulations. COLLECTORS. As to discretionary power of probate court to remove a collector to whom letters ad colligendum have been issued. See Guthrie v. Welch, 24 App. D, C. 562; 33 W. L. R. 162. COLLEGES. As to right to have publication admitted to mails as second class mat- ter. See Chicago Business College v. Payne, 20 App. D. C. 606; 30 W. L. R. 812. See also Bequests; Educational Institutions; Mails; Sectarian In- stitutions. COLLUSION. See Divorce. COLOR OF TITLE. See Ejectment. COMBINATIONS. See Patents. COMBINATIONS IN RESTRAINT OF TRADE. Four brewing companies formed a combination, known as the brewers' association, in order to prevent competition in the manufacture and sale of their products. In order to raise the price of beer to $6 per barrel and compel the H. Co., which was selling beer at $3.60 per barrel, to enter the combine, such association conspired with a labor organization i62 Comity — Commissioners of the District of Columbia. to deprive said H. Co. of its employees. The H. Co., intimidated by threats was about to join the combine, whereat certain of its customers filed a bill for an injunction to prevent the execution of the objects of the unlawful conspiracy, alleging that irreparable loss and injury to them would result. Held, that the association was a trust or combine within the meaning of the Anti-Trust act (36 Stat. 209), § 3 of which is declaratory of the common law prevailing in this District; that while a court of equity could not decree the agreement between the members of the association null and void, nor, in the absence of a showing of irre- parable injury resulting to them, stay the attempted invasion of the rights of the H. Co., at the suit of complainants, it could and should under the allegations of the bill showing a case of legal injury which would result directly to them from the forcible and wrongful termination of their trade relations with the H. Co., enjoin the doing or continuance of the wrongful acts. Leonard v. Brewing Go's., 25 App. D. C. 161 ; 33 W. L. R. 211. COMITY. Comity applies only to questions which have been actually decided and which arose under the same facts. Brill v. Wash. Ry. & El. Co., 36 W. L. R. 55. As a matter of comity, a trust permitted by the local law in favor of a local cemetery association will be sustained in favor of a foreign asso- ciation having similar power under the law of its creation and domicile. Iglehart v. Iglehart, 204 U. S. 478. As to maintenance in courts of District of action to recover for negligent injury causing death in the State of Maryland. See Stewart v. Balto. & O. R. R. Co., 168 U. S. 445; 25 W. L. R. 814. As to allowance of suits by foreign receivers. See Barley v. Gittings, 15 App. D. C. 427; 27 W. L. R. 802. See also Corporations; Courts; Recbivers; Statutes. COMMERCIAL PAPER. See Bills and Notes. COMMISSION MERCHANTS. One who takes possession of farm products shipped to him as agent for the purpose of sale, is a factor or commission merchant, within mean- ing of § 838, D. C. Code, although he has no store and his general business is that of a broker. Green v. United States, 25 App. D. C. 549; 33 W. L. R. 535. One may be both a factor and a broker and serve his employers in both capacities. His rights and liabilities are not governed by the fact that he acts oftener in the one capacity than the other, but by the capacity in which he acts in the particular transaction. lb. COMMISSIONER OF PATENTS. See Patents. COMMISSIONERS. See United States Commissioners. COMMISSIONERS OF THE DISTRICT OF COLUMBIA. I. Duties of. II. Power and Authority. III. Contracts by. Commissioners of the District of Columbia. 163 IV. Actions by. V. In General. I. Duties of. Under the act of Aug. 27, 1888, the Commissioners are charged with the duty of ascertaining whether a plat of a subdivision offered for record, conforms to the general plan of the city ; and no matter how erroneous their judgment may be the courts have no power to reverse it. Ross v. Goodfellow, 7 App. D. C. 1 ; 23 W. L. R. 385 ; reversing 23 W. L. R. 263. Mandamus will not lie to compel the Commissioners to receive and admit to record a plat of a subdivision which is not in conformity with a plan adopted by them for the extension of an avenue. Ih. As to right of property owner, whose land has been appraised in con- demnation proceedings, to compel, by mandamus, the taking of such land. See Ross v. Prospect Hill Cemetery, 8 App. D. C. 32 ; 24 W. L. R. 98. Judgment of Commissioners that the public interests require the open- ing of a minor street as prerequisite to the proceeding therefor. Handley V. Macfarland, 34 W. L. R. 114. The Commissioners of the District of Columbia are charged with the duty of keeping the public ways of the city in such condition that they can be used with reasonable safety. Dis. of Col. v. Moulton, 15 App. D. C. 363; 27 W. L. R. 753. Duty as to summoning second jury in condemnation proceedings. See Brown v. Macfarland, 19 App. D. C. 525 ; 30 W. L. R. 235. Mandamus will not lie to compel them to execute a deed to the assignee of a purchaser at a tax sale without payment of all taxes assessed against the property as provided in the act of 1898. U. S. ex rel. Bride v. Mac- farland, 18 App. D. C. 120; 29 W. L. R. 242. As to review of evidence produced on trial before police trial board. See Walsh v. Macfarland, 34 W. L. R. 78. II. Powrer and Authority. The acts of Congress of Jan. 26, 1887, and Feb. 26, 1892, conferred upon the Commissioners power to enact the regulation requiring drivers of public vehicles, while waiting in the streets to place their vehicles as di- rected by a policeman. Barnes v. Dis. of Col., 24 App. D. C. 458 ; 33 W. L. R. 53. As to power of Commissioners to enact § 7, Art. 10, of the police regu- lations relating to the use of streets by public vehicles. See Barnes v. Dis. of Col., 27 App. D. C. 101 ; 34 W. L. R. 358. As to power to regulate movement of vehicles on public streets. See Balto. & 0. R. R. Co. v. Dis. of Col, 10 App. D. C. Ill; 25 W. L. R. 118. As to power to apportion spaces of cab stand adjacent to B. & P. Railroad station. See Dis. of Col. v. Hazel, 16 App. D. C. 283; 28 W. L. R. 372. The Commissioners of the District of Columbia are without power to narrow the roadway of established streets in the city of Washington, not- withstanding it may be for the public advantage to do so. Walter v. Macfarland, 27 App. D. C. 182 ; 34 W. L. R. 238. 164 Commissioners op thb District of Columbia. Under the act of Aug. 27, 1888, the Commissioners of the District may, when rendered necessary by the topography, make reasonable deflections in avenues in their extension to the District boundaries; and may refuse admission to record of a plat of a subdivision not in conformity therewith. Ross V. Goodfellow, 7 App. D. C. 1; 23 W. L. R. 385; reversing 23 W. L. R. 263. Although the Commissioners of the District, in passing upon the ques- tion whether the public interests require the opening of a minor street, are acting judicially, yet it is competent to inquire whether they acted in good faith, and if it be shown or admitted that they did not so act their action goes for naught. Handley v. Macfarland, 34 W. L. R. 114. The Commissioners in virtue of the power of control and regulation of the streets and parking of this city, may maintain a suit in equity to enjoin the maintenance of a show window projecting beyond the building line and upon the parking, erected by defendant in violation of the terms of a permit authorizing the making of certain repairs to the building. Guerin v. Macfarland, 27 App. D. C. 478 ; 34 W. L. R. 372. Validity of acts of July 22, 1892, and Aug. 24, 1894, authorizing the in- stitution of proceedings for opening and extending alleys and minor streets. Brandenburg v. Dis. of Col, 26 App. D. C. 140; 33 W. L. R. 740. As to power to assess abutting property for construction of sidewalks. See Dis. of Col. v. Wormley, 15 App. D. C. 58 ; 27 W. L. R. 382. The authority of the Commissioners of the District of Columbia under the act of Congress of Jan. 26, 1887, and joint resolution of Feb. 26, 1892, to promulgate a regulation relative to the occupation of certain sidewalks and streets by farmers and others, is not aflfected by the joint resolution of Feb. 20, 1897, relating to the wholesale market in the District. Taylor V. Dis. of Col., 24 App. D. C. 392 ; 33 W. L. R. 67. Without power to promulgate the regulation of 1905 requiring individual citizens to remove snow and ice from sidewalks. Coughlin v. Dis. of Col, 25 App. D. C. 251; 33 W. L. R. 376. Under the authority conferred upon them by the act of Congress of Jan. 26, 1887, the Commissioners of the District of Columbia have power to make and enforce a regulation requiring a license for the storage of gasoline in the city of Washington. Dis. of Col. v. Weston, 23 App. D. C. 363; 32 W. L. R. 284. Whenever called upon for a grant or license relating to the pubhc roads, the Commissioners of the District must determine the extent of their authority in the premises by the construction of the statutory provisions relating thereto. The duty to expound involves the exercise of judgment; and from their decision no appeal lies to the courts of the District. Mutual Dis. Messenger Co. v. Wight, 15 App. D. C. 463 ; 28 W. L. R. 57. Whether the Commissioners have authority to grant to a messenger company a license to string a wire across a sidewalk in order to install its burglar alarm system, quaere; but conceding the existence of the power mandamus will not lie to compel its exercise. lb. As to right of Commissioners to act through the agency of the Inspector of Buildings in granting license. See McBride v. Ross, 13 App. D. C. 576; 27 W. L. R. 402. Commissioners of thb District of Columbia. 165 As to power to revoke plumbing license. See Daly v. Macfarland, 28 App. D. C. 553 ; 35 W. L. R. 81. As to validity of regulation of Aug. 1, 1901, respecting service of milk. See Thompson v. Dis. of Col, 21 App. D. C. 395 ; 31 W. L. R. 305. As to power under Article 14, § 9, of police regulations, relative to re- moval and disposal of dead animals. See Mann v. Dis. of Col., 22 App. D. C. 139; 31 W. L. R. 434. As to power to regulate removal and disposition of garbage. See Nash V. Dis. of Col, 28 App. D. C. 598 ; 35 W. L. R. 96. The Commissioners of the District of Columbia, in the exercise of the powers intrusted to them, may lawfully grant permits for the stringing, at a safe distance above the sidewalk, of wires from a telephone pole located in front of premises outside the limits of the city of Washington, for the purpose of making a house connection with such premises. Nolan V. Ches. & Pot. Tel. Co., 39 W. L. R. 34. As to power to enact police regulation relative to maintenance of elec- tric wires. See Clements v. Potomac Electric Power Co., 26 App. D. C. 483; 34 W. L. R. 158. As to power to grant permits to lay wires for electric lighting. See U. S. Elec. Lighting Co. v. Ross, 24 W. L. R. 775 ; Potomac Blec. Power Co. V. U. S. Elec. Light Co., 26 W. L. R. 19. As to power to lay water-mains and levy special assessments therefor. See Dis. of Col. v. Burgdorf, 6 App. D. C. 465 ; 23 W. L. R. 354. The power to regulate the movements of railway locomotives and trains within the District is conferred upon the Commissioners by the joint resolution of Congress of Feb. 36, 1892. Balto. & O. R. R. Co. v. Dis. of Col, 10 App. D. C. Ill; 25 W. L. R. 118. The Commissioners are without power to grant to members of the fire department permission to invite members of their families or others to engine houses. Brown v. Dis. of Col, 29 App. D. C. 273 ; 35 W. L. R. 162. As to control over bridges within District. See Smith v. Dis. of Col, 13 App. D. C. 33 ; 25 W. L. R. 824. As to power to make and enforce building regulations. Macfarland v. U. S. ex rel Miller, 18 App. D. C. 554 ; 39 W. L. R. 753. As to standard of weights and measures which Commissioners author- ized to enforce. See Thompson v. Dis. of Col, 31 App. D. C. 395 ; 31 W. L. R. 305. Although the Commissioners may have unlawfully exercised a power without challenge, yet such power will be denie'd them when duly chal- lenged. Walter v. Macfarland, 27 App. D. C. 182 ; 34 W. L. R. 238. As to delegation to Commissioners of power reserved by Congress in acts permitting the B. & O. and B. & P. railroad companies to enter Dis- trict. See Balto. & O. R. R. Co. v. Dis. of Col, 10 App. D. C. Ill; 25 W. L. R. 118. As to validity of regulation requiring inspector of plumbing to give bond. See Dis. of Col v. Ball, 23 App. D. C. 543 ; 31 W. L. R. 736. Under the act of June 11, 1878, ch. 180, the Commissioners of the District are without power to submit a controversy for breach of con- tract to common law arbitration. Dis. of Col. v. Bailey, 171 U. S. 161. i66 Commissioner oi^ Pensions — Commissions. As to power to submit to arbitration claim against District. See Bailey V. Bis. of Col, 9 App. D. C. 360; 34 W. L. R. 745. III. Contracts by. As to effect of contract by Commissioners under their hands and seals as contract of the municipal corporation. See Dis. of Col. v. Camden Iron Works, 15 App. D. C. 198; 27 W. L. R. 462. A mere statement on the minutes of the Commissioners of the District of the appointment of a referee, without signature by the Commissioners is not a contract by them under the act of June 11, 1878, ch. 180, § 5. Dxs. of Col. V. Bailey, 171 U. S. 161. Contract with Providence Hospital under the act of March 3, 1897, held valid. Roberts v. Bradfield, 12 App. D. C. 453 ; 26 W. L. R. 242. The Commissioners cannot bind the municipality by a contract for ser- vices rendered the public schools in the absence of an appropriation there- for. Myers v. Dis. of Col., 25 App. D. C. 132; 33 W. L. R. 291. IV. Actions by. As to maintenance of bill for mandatory injunction by Commissioners of District in their own names as such, to compel removal from avenue and parking of structure for which license had been revoked. See Mc- Bride v. Ross, 13 App. D. C. 576 ; 27 W. L. R. 402. As to substitution of party where one of Commissioners, petitioners for injunction to compel removal of unlicensed structure from public ave- nue and parking, retires. See lb. As to liability for costs on appeal. See Brown v. Macfarland, 22 App. D. C. 412; 31 W. L. R. 541. V. In General. The agency of Commissioners acting under the act of Congress incor- porating the Georgetown & Tenallytown R. R. Co., was that of Congress and not of the municipality. Smith v. Dis. of Col., 25 App. D. C. 370; 33 W. L. R. 418. As to status of. See Walter v. Macfarland, 27 App. D. C. 182; 34 W. L. R. 238. As to property authorized to be sold by acts of Congress of March 2, 1881, and April 1, 1882. See Dis. of Col. v. Cropley, 23 App. D. C. 332; 32 W. L. R. 97. As to effect of deed ty Commissioners acting under the authority of acts of Congress relative to, sale of certain water-front lots in Georgetown. See lb. See also District of Columbia. COMMISSIONER OF PENSIONS. See Public Officers. COMMISSIONS. The law does not forbid gratuitous services, even in fiduciary relations; and if acts purport to be done gratuitously no claim for payment can be founded on them at a later date. Mclntire v. Mclntire, 192 U. S. 116; 33 W. L. R. 54. The forfeiture of commissions and charges in case of embezzlement by Commitments — Committing Magistrates. 167 a receiver is not for the criminal court to determine, but for the equity court in settling the final accounts of the receivership. Fields v. United States, 37 App. D. C. 433; 34 W. L. R. 382. When real estate agent entitled to commissions on sale of real estate. See Mannix v. Hildreth, 3 App. D. C. 359; 23 W. L. R. 93; Jones v. Holladay, 2 App. D. C. 279; 22 W. L. R. 169; Block v. Ryan, 4 App. D. C. 383 ; 33 W. L. R. 689 ; Daniel v. Land Co., 9 App. D. C. 483 ; 35 W. L. R. 6. When real estate agent entitled to commissions on sale effected by owner. See Bryan v. Abert, 3 App. D. C. 180; 22 W. L. R. 297. As to right of real estate broker to commissions on failure of consum- mation of sale. See Dotson v. Miliiken, 27 App. D. C. 500; 34 W. L. R. 334 ; affirmed in 309 U. S. 337. As to running of statute of limitations against claim of real estate broker for commissions. See Ross v. Pickling, 11 App. D. C. 442; 25 W. L. R. 806. As to effect of bequests "to my wife and executrix,'' to deprive her of commissions as executrix. See Sinnott v. Kenaday, 14 App. D. C. 1 ; 37 W. L. R. 83. As to review of allowance by Orphans' Court of commissions to ex- ecutrix. See Sinnott v. Kenaday, 14 App. D. C. 1 ; 37 W. L. R. 83. As to commissions of administrator. See Mclntire v. Mclntire, 14 App. D. C. 337 ; 27 W. L. R. 198. Exaction of commission affecting a note or obligation with usury. Richards v. Bippus, 18 App. D. C. 393 ; 29 W. L. R. 414. See Executors and Administrators ; Receivers. COMMITMENTS. An order of commitment for contempt of court should be specific and certain in its terms and not for a period so indefinite as the pleasure of the court. Such an order will not, however, be held void for want of mere technical accuracy in its recitals where the defects therein are sup- plied by the record. Tolman v. Leonard, 6 App. D. C. 224; 23 W. L,. R. 343. That the proceedings which form part of the record show clearly that a commitment was for disobedience of an order to pay alimony and for nothing else, is a sufficient compliance with the rule requiring an order of commitment to show the ground upon which it rests. lb. Commitment for contempt in disobedience of order for payment of alimony is not imprisonment for debt. lb. As to validity of commitment to reform school. See Rule v. Geddes, 23 App. D. C. 31; 33 W. L. R. 35. COMMITTEES. The committee of a lunatic is a necessary party to a suit to annul his marriage. Mackey v. Peters, 22 App. D. C. 341 ; 31 W. L. R. 504. COMMITTING MAGISTRATES. See United States Commission- ers; Habeas Corpus. i68 Common Carribrs. COMMON CARRIERS. I. What Are. II. Duty to Passengers. III. Duty as to Goods. IV. Charges. V. Limitation of Liability. VI. Special Contracts for Carriage. I. What Are. A company engaged in the business of supplying messenger service to the public is in a certain sense and to a certain extent a common carrier, and liable upon proof of negligence. White v. Postal Telegraph & C. Co., 25 App. D. C. 364; 33 W. L. R. 295. There is no presumption that a company engaged in supplying messen- ger service assumes to act as a common carrier in the transportation of money; and its assumption of that status must be affirmatively proved by the party alleging it. lb. Plaintiff's attorneys were furnished by defendant vifith a messenger to whom they delivered a letter addressed to real estate agents containing a request for a check. The agents, however, enclosed the amount in money in an envelope and delivered it to the messenger. The latter claimed to have delivered it to an employe of plaintiff's attorneys, but this was denied. It was not the custom of defendant to accept money for transportation ; and the messenger was not notified that the envelope con- tained money. Held, that the defendant was not liable, and the trial court properly directed a verdict in its favor. lb. Character of telephone company as common carrier. See Manning v. Telephone Co., 26 W. L. R. 499. II. Duty to Passengers. A passenger is entitled to the highest degree of care and caution on the part of the carrier for protection against injury. City & Suburban Ry. V. Svedborg, 20 App. D. C. 543 ; 30 W. L. R. 823. A railway company, in the carriage of route agents or postal clerks of the United States, charged with duties respecting the protection and proper distribution of the mails carried under contracts and in accordance with law, is under the same obligation to them, as regards suitable and safe carriage, that it is to ordinary passengers. Lindsey v. Pennsylvania R. R. Co., 26 App. D. C. 503 ; 34 W. L. R. 95. The duty of properly fitting up, furnishing, warming, and lighting postal cars for the accommodation of route agents who accompany and distribute the mails, is expressly imposed upon the carrier by §§ 4002 and 4005, R. S. lb. A condition in a free pass issued by a railway company by which the party accepting and using it assumes all risk of accident and damage to person or property, whether caused by negligence of the company's agents or otherwise, is vaHd and binding on the person accepting and using the pass, and precludes a recovery by such person for an injury caused by the negligence of the company's agents. Boering v. Chesapeake Beach Ry. Co., 20 App. D. C. 500; 30 W. L. R. 742. A prima facie case of negligence on the part of a carrier is made by Common Carriers. 169 showing that the accident occurred while plaintiff was a passenger ; and this being shown the burden rests upon the carrier to explain the cause of the accident and to show, if that be the defense, that the plaintiff's negligence caused or contributed to the injury. Kehan v. Washington Ry. & Bl. Co., S8 App. D. C. 108 ; 34 W. L. R. 451. Actual or express notice by a passenger of an intention to alight from a car is not required if the conductor knew that such passenger was alighting, or the circumstances were such that he ought to have known it. Wash. & G. R. R. Co. v. Grant, 11 App. D. C. 107 ; 25 W. L. R. 342. If a street car stops at a place where passengers may get off and on without notice, although not a regular stopping place, it is the duty of those in charge of the car to hold it a sufficient time for passengers, by the exercise of reasonable diligence, to alight or get on in safety, and must see and know that no passenger is alighting or otherwise in a dan- gerous position if the car be put in motion, lb. In the absence of a special contract, a carrier's duty is fully performed by safe carriage to the end of its line, where a connecting carrier con- tinues the transportation. Howard v. C. & O. R. R., 11 App. D. C. 300 ; 25 W. L. R. 750. III. Duty as to Goods. In an action for damages caused by the unlawful detention by a railroad of property shipped thereover, evidence on the part of defendant, showing the cause of delay and that it exercised due diligence, is admissible. Beasley v. Balto. & Pot. R. R. Co., 37 App. D. C. 595 ; 34 W. L. R. 430. An owner of goods or chattels may maintain either an action of contract or of tort against a common carrier for hire, for loss or injury to such goods occurring through negligent performance of the work of carrying. Balto. & O. R. R. Co. v. Dougherty, 7 App. D. C. 378 ; 23 W. L. R. 832. The measure of damages in an action against a common carrier to whom goods have been entrusted for carriage, for loss or injury to the goods through its negligence, whether the action be one of contract or tort, is the value of the goods at the point of destination, with legal in- terest, lb. IV. Charges. Where goods are shipped over connecting roads the bill of lading issued by the initial carrier to the owner is conclusive and controlling as to the amount of charges due on delivery. Beasley v. Balto. &■ Pot. R. R. Co., 27 App. D. C. 595; 34 W. L. R. 430. Where a demand is made by the owner of property, with a tender of the amount called for by the bill of lading, the refusal of the carrier to deliver, except upon payment of a sum in excess of the contract price, is at least prima facie evidence of a conversion. lb. Whether, when the way-bill received by the carrier on whom such de- mand is made calls for a sum in excess of that stated in the bill of lading, the carrier has a right to detain the goods, for the purpose of ascertain- ing which amount is correct, quaere; but conceding such right, the carrier would be entitled to hold the goods for a reasonable time only; and the question whether the carrier acted with reasonable promptness and dili- 1^0 Common Counts — Common Law. gence in ascertaining the facts is ordinarily one for the jury. lb. Trover will lie for the value of property unlawfully withheld under an unlawful claim for freight charges. lb. V. Limitation of Liability. An express company, as a common carrier, may limit its common law liability to an amount stated by notifying the shipper or his agent of its intention to do so before acceptance of the article. Adams Express Co. V. Adams, 35 W. L. R. 208. Where a shipping receipt or bill of lading is not received by the ship- per or brought to his attention before acceptance of the shipment by an express company, he is not bound by a limitation of liability therein. lb. VI. Special Contracts for Carriage. In an action against the Pennsylvania R. R. Co. for breach of special contract of carriage, plaintiff having purchased from the B. & P. R. R. Co. a round-trip special excursion ticket for carriage on that road and a connecting road, plaintiff's evidence consisting of newspaper advertise- ments; proof that the general passenger agent of the one was the same as of the others ; schedules in which the two roads were embraced under the heading "Pennsylvania Railroad System," extracts from annual re- ports showing that -the two roads belonged to the Pennsylvania system, etc., held insufficient to connect the defendant with the other railroads so as to render it liable to plaintiff. Tyler v. Railroad Co., 18 App. D. C. 31; 29 W. L. R. 203. In an action against a railroad company founded upon a special con- tract of carriage, the onus of proof is on the plaintiff to show that the defendant entered into the contract and became bound thereby. lb. See Negligence; Railroads. COMMION COUNTS. As to evidence to prove count for money had and received. See Harr V. Roome, 28 App. D. C. 214; 34 W. L. R. 709. COMMON LAW. The common law of England, in all its branches, both civil and crim- inal, except in so far as it has been repealed by express statutory enact- ment, or modified by inconsistent legislation, or where it has become ob- solete or unsuited to our form of government, is in force in the District of Columbia. De Porest v. United States, 11 App. D. C. 458; 26 W. L. R. 346. The common law as to assignability of chose in action and right of as- signee to sue thereon in own name prevails in this District. Armstrong- Whitworth Co. v. Norton, 15 App. D. C. 223 ; 27 W. L. R. 414. The standard of weights and measures prevailing under common law is that enforceable in this District. Thompson v. Dis. of Col., 21 App. D. C. 395; 31 W. L. R. 305. Force of, as to crimes and procedure relating thereto. See Hill v. United States, 22 App, D. C. 395 ; 31 W. L. R. 552. Complaints — Condemnation of Land. i^l As to what constitutes a trial by jury within the meaning of the common law. See Capital Traction Co. v. Hof, 174 U. S. 1 ; 27 W. L. R. 262. Stipulations submitting demands of a contractor to adjudication of su- pervising architects or engineers, are in derogation of common law right, and in case of doubt, must be construed in favor of one resisting enforce- ment. Pontano v. Robbins, 18 App. D. C. 402; 29 W. L. R. 527. COMPLAINTS. See Indictment and Information. COMPOSITIONS. See Patents. COMPLETE DEVICE. See Patents. COMPOSITION OF MATTER. See Patents. COMPOUNDS. See Patents. COMPROMISE AGREEMENTS. See Contracts. CONCEALMENT. Of dangerous defects in premises by landlord, rendering him liable for injuries suffered by tenant by reason of such defects of which he had no ■ knowledge. Howell v. Schneider, 24 App. D. C. 532 ; 33 W. L. R. 82. See Patents. CONCEPTION OF INVENTION. See Patents. CONCURRENT JURISDICTION. See Jurisdiction. CONDEMNATION OF LAND. I. Right of and to Condemnation. II. Nature of Proceedings for. III. Regularity of Proceedings for. IV. Notice. V. Scope of Inquiry. VI. Compensation. VII. Benefits. VIII. Power of Congress. IX. Appeals. X. Generally. I. Right of and to Condemnation. When the power to exercise the right of eminent domain is delegated to a railway company the courts will supervise the exercise of that power and restrain any clear case of abuse. Riley v. Balto. & O. R. R. Co., 27 App. D. C. 105 ; 34 W. L. R. 274. A property owner whose land, although in proximity to, is not within the limits of the territory embraced in the plans adopted by the Balti- more and Ohio Railroad Company, and approved by the Commissioners of the District, as a location for its freight yards and terminal, pursuant to the authority conferred by the act of Congress of Feb. 28, 1903, which defined the limits within which the location should be made, is not within the proviso to § 9 of that act authorizing any property owner whose land is within such location to begin, within two years, "proceedings to com- pel the appropriation of said land by said company and the payment of damages," etc., and such owner can not compel the company to appro- priate her land. lb. 172 Condemnation op L,and. The right given a railroad by §§ 646, 647, R. S. D. C, is not taken away by the acts of Congress relating to the elimination of grade cross- ings and the erection of a union station. Win-slow v. Balto. & Ohio R. R. Co., 28 App. D, C. 126; 34 W. L. R. 501. II. Nature of Proceedings for. A condemnation proceeding initiated before a court, conducted under its supervision, with power to review and set aside the verdict of the jury, and with the right of review vested in an appellate tribunal, is in its nature an action at law. Metropolitan R. R. Co. v. Dis. of Col., 195 U. S. 322. A proceeding by a railroad company to condemn land and to determine the compensation to be made for it, is a suit at common law when in- itiated in a court. Winslow v. Balto. & Ohio R. R. Co., 28 App. D. C. 126; 34 W. L. R. 510. III. Regularity of Proceedings for. In a proceeding instituted by the Commissioners of the District, under the authority of the act of March 3, 1899, to condemn lands for the widen- ing and extension of Sherman avenue, and which proceeding was by that act directed to be under and according to chap. 11, R. S. D. C, ap- pellants, as owners of lands embraced in the verdict of the jury of seven summoned under the provisions of § 257 of that chapter, filed exceptions to such verdict, which however, were overruled and the verdict accepted and confirmed. Held, that the confirmation of the verdict notwithstand- ing the exceptions filed thereto was error. Brown v. Macfarland, 19 App. D. C. 525; 30 W. L. R. 235. In statutory proceedings for the condemnation of land it must be af- firmatively shown that all provisions of the statutes have been substan- tially complied with; otherwise the whole proceeding is void. lb. Upon the filing of exceptions to the verdict of a jury of seven, it is the duty of the Commissioners, if they desire to proceed with the work of condemnation, to order the marshal to summon a jury of twelve as directed by § 263 of chap. 11, R. S. D. C, whose verdict, by § 264 of that chapter is made final and conclusive, and no duty rests upon exceptants to summon such second jury. lb. The act of Aug. 7, 1894, directing the Supreme Court of the District to vacate its order confirming the report of commissioners appointed under the act of Dec. 21, 1893, to appraise the value of lands for the open- ing of North Capitol street, and directing the District Commissioners to proceed to acquire the land in another and different way, while void as to its first provision in that it is an invasion of the judicial power and ineffectual for the purpose of a readjudication of value, is a valid repeal of the mandatory provisions of the act of 1893, and constitutes a refusal by Congress to take the land at its adjudicated value. Ross v. Prospect Hill Cemetery, 8 App. D. C. 32 ; 24 W. L. R. 98. Under the act of March 3, 1899, providing that proceedings should be in accordance with chap. 11, R. S. D. C, the filing of exceptions to the verdict of the jury by parties whose lands were assessed was suf- ficient evidence of their dissatisfaction and made it necessary that a sec- Condemnation of Land. 173 ond jury be ordered. Todd v. Macfarland, 30 App. D. C. 176; 30 W. L. R. 423. One whose property is assessed is entitled to have the verdict of the first jury set aside on exceptions relating only to the assessment of benefit even though he has accepted the award of damages made by the same verdict. lb. Where in a proceeding under the acts of 1892 and 1894, for the con- demnation of land and opening and extending of minor streets and alleys, a land-owner has been served with due notice and had an opportunity to be heard before the jury on the subject of damages and benefits, he cannot be again heard to insist that the assessment should be annulled because the jury failed to make a correct assessment and apportionment. Brandenburg v. Dis. of Col, 26 App. D. C. 140 ; 33 W. L. R. 740. The act of Congress of July 22, 1892, authorizing the Commissioners of the District to open and extend alleys, and the amendatory act of Aug. 24, 1894, extending- its provisions so as to authorize the opening of minor streets, and directing the apportionment of the amount awarded as dam- ages, etc., against the lots or parcels of land benefited, are constitutional and valid. lb. In a proceeding under the act of Congress of June 6, 1900, for the widening and extension of certain streets in this District, the hearing by the court of exceptions to the verdict and award of the jury, with the af- fidavits accompanying such exceptions, is a full compliance with the pro- visions of § 8 of the statute ; and it is not contemplated by the statute that the parties excepting should have an opportunity afforded them to introduce testimony in support of their exceptions. Clapp v. Macfarland, 20 App. D. C. 234; 30 W. L. R. 392. Under the act of Congress of Jan. 9, 1907, authorizing the Commis- sioners of this District, within thirty days after the passage of the act, to institute a proceeding to condemn lands for the extension of certain streets, the day of the passage of said act is to be counted as part of the thirty days within which the proceeding must have been commenced; and a petition filed on February 8, 1907, that being the thirty-first day after the passage of the act, was filed too late. In re Second Street Extension, 36 W. L. R. 16. Section 15 of the Highway Extension Act of 1893, is invalid in that it does not conform to the necessary operation of §§ 6 and 7 in that it fails to define or prescribe the district or territory within which the benefits may be assessed ; and also because it provides that the assessment shall bear interest from the date of confirmation by the court, despite the fact that Congress may not accept them, if at all, for a year, possibly, under the provisions of § 18. Dis of Col. v. Armes, 8 App. D. C. 393; 24 W. L. R. 278. Irregularities in a proceeding under the acts of 1892 and 1894 for the opening of a minor street, consisting of failure of Commissioners to cer- tify as to the necessity for such action, and that the assessor certified that the petitioners for the improvement "appeared" to be the owners of the land within the block without showing any examination had been made to establish that fact are not such as to require the amendment of the assessment made against the lots of petitioner, and an order quashing a 174 Condemnation of L,and. writ of certiorari to review the assessment was proper. Brandenburg v. Dis. of Col., 26 App. D. C. 140; 33 W. L. R. 740. IV. Notice. Seasonable notice at some serviceable stage of the proceedings is ab- solutely necessary to the validity of an assessment, and where there was no personal notice or personal service of process on any of the owners of property to bfe assessed prior to the issue of the order nisi confirming the verdict of the jury, but merely an order of publication issued at the time of the filing of the petition directing parties in interest to ap- pear in court by a day named, it is insufficient. Davidson v. Wight, 16 App. D. C. 371; 28 W. L. R. 302. The requirement of personal notice or personal service of process is not dispensed with by the fact that the parties assessed had some agency in procuring the passage of the act under which the proceeding was had, and that they were aware that a suit was intended to be instituted under its provisions. lb. The appearance of some of the owners of land affected, before the jury of condemnation, as witnesses summoned on behalf of the District, will not constitute a waiver of notice, and a statement by the marshal in his return that the owners were represented before the jury is not suf- ficient evidence of that fact, when expressly denied in affidavits made by such alleged representatives, lb. By the filing of a petition for condemnation and assessment of ben- efits and damages under the acts of Congress of March 3, 1899, Jan. 30 and June 6, 1900, providing for the extension of Sixteenth street, and service of notice thereof on parties then in interest, a lien attached to the property as it then stood and with the divisions and subdivisions that then existed, of which lien subsequent purchasers were charged with notice. Wilkinson z: Dis. of Col., 22 App. D. C. 289; 31 W. L. R. 507. Where, in a proceeding under the acts of Congress of July 22, 1892, and Aug. 24, 1894, for the opening of an alley or minor street, certain of the lots affected by the proceeding are incumbered by a deed of trust, the holder of the note secured by such deed of trust is not entitled to notice. Martin v. Dis. of Col, 26 App. D. C. 146; 33 W. L. R. 742. A holder of the note, acquiring title to the same subsequent to the pro- ceedings to open the alley, and after the matter of the proceedings had become a public record, can not, in an independent proceeding and in his own name, attack the special assessment against the lots covered by the deed of trust on the ground that no notice thereof had been given the then holder of the note. lb. V. Scope of Inquiry. In condemnation proceedings under chap. 15 of the Code, the jury are not restricted to a mere consideration of the evidence and the allega- tions of the parties, but are required to exercise their own powers of judgment and observation. They are not bound by the opinions of ex- perts or the apparent weight of evidence, but may give their own conclu- sions. Seufferle v. Macfarland, 28 App. D. C. 94 ; 34 W. L. R. 526. Where, between the time of the impaneling of the jury of condemnation Condemnation of L,and. 175 and the rendition of its verdict, a tract of land — part of which was con- demned and taken and damages awarded therefor and the residue as- sessed for benefits — was conveyed in separate and distinct parcels to sev- eral persons, the jury was not required to take notice of such conveyances and to assess the parcels into which the tract had been divided separately in proportion to their value; and the failure of the jury so to do and the assessment by it of the tract as a whole did not render the assessment il- legal, null and void. Wilkinson v. Dis. of Col., 22 App. D. C. 289 ; 31 W. L. R. 507. VI. Compensation. The compensation required by the Constitution for taking private property for public use means legal tender money. The compensation must be co-extensive with the property taken. Where by the taking of a part of one's property he is divested of the beneficial use of the re- mainder, he is entitled to compensation for the injury suffered. Dis. of Col. V. Prospect Hill Cemetery, 5 App. D. C. 497 ; 23 W. L. R. 162. Land taken for purposes of public improvement is to be paid for at its value at the time taken, and not according to the value determined in the future by the contemplated improvements; and any deduction made from this value for benefits must be for those which, if not immediately realized, are so far present as to be certain and presently ascer- tainable. In re Condemnation of Lands, 24 W. L- R. 65. The estimate of the just compensation for property taken for public use under the right of eminent domain is not required by the Constitu- tion to be made by a jury; but may be intrusted by Congress to com- missioners appointed by the court or the executive, or to an inquest con- sisting of more or fewer men than an ordinary jury. Baunian v. Ross, 167 U. S. 548; 25 W. L. R. 359. There is a distinction between direct and consequential damages. The latter is damnum absque injuria. But damage resulting to the remainder of one's property by the taking of a part thereof for public use is direct, and the owner is entitled to compensation. Dis. of Col. v. Prospect Hill Cemetery, 5 App. D. C. 497; 23 W. L. R. 162. In a proceeding to condemn land and a right of way through the land of S. for the purposes of an outfall sewer, where such sewer passed under the bed of the river to the center of the channel where the sewage is dis- charged, an instruction to the jury to consider whether the waters of the river will deposit sewage on the land of S., distant 1,000 feet from such outlet, which would give forth foul, poisonous gases and odors, and if they so found to consider the effect on the land and award damages therefor, held the most favorable to which S. was entitled and that he was not entitled to an instruction that if the jury found the tides and waters of the river would hold such sewage in suspension or solution and would give forth foul odors which the air would carry over his land, depreciating its value, they should award damages therefor. Nor should the jury be instructed to consider whether prospective purchasers of the land would be apprehensive that the operation of the sewer would dam- age the land, and the effect of such apprehension on the value of the land. ^ew^^Wf p. Moc^orfand, 38 App. D. C. 94 ; 34 W. L. R. 526. 176 Condemnation of Land. The act of Congress of March 2, 1893, is unconstitutional and void in that it provides for the taking of private property for public use and at- tempts to pay for it partly in benefits to be received in future contingently. In re Condemnation of Land, 24 W. L. R. 65. VII. Benefits. Private individuals cannot be charged with the cost of a public improve- ment, nor any proportionate share of the cost, in the absence of a statute distinctly so providing. Possible benefits that may accrue to adjoining lands from the opening of a street, cannot be set off against the com- pensation payable for lands sought to be taken for that purpose. Dis. of Col. V. Prospect Hill Cemetery, 5 App. D. C. 497; 23 W. L. R. 162. It is within the power of Congress, in the exercise of the right of eminent domain, to direct that, when part of a tract of land is appro- priated to public use, for a highway in the District, the tribunal charged with the duty of assessing the compensation or damages, whether for the value of the part taken or for injury to the rest, shall take into considera- tion any special and direct benefits, capable of present estimate and rea- sonable computation, caused by the establishment of the highway, to the part not taken. Bauman v. Ross, 167 U. S. 548 ; 25 W. L. R. 358. The act of March 2, 1893, to provide a permanent system of highways in that part of the District lying outside of cities, is constitutional and valid. Ih. The provisions of § 11 of the act of 1893, that the jury, in assessing damages where part of a tract is taken, shall take into consideration the benefit "the purpose for which it is taken may be to the owner" by en- hancing the value of the remainder, construed with the rest of the act, shows the purpose to be the appropriation of the land for a highway, which is distinct from and antecedent to the actual construction and completion of the highway; and benefits as well as damages are to be estimated by the jury as of the date of the appropriation. lb. Section 15 of the act of 1893 is not uncertain and incapable of enforce- ment by failing to define the district or territory within which benefits may be assessed ; but the reasonable inference from its provisions is that all lands within this District benefited by the improvement may be in- cluded in assessment. lb. The provisions of § 15 of the act of 1893 imply that the assessments shall be proportioned to the benefits, and not to the market value or any other tests. lb. Assessments for benefits levied under the act of March 3, 1899, held not collectible thereunder, because of its omission to specify the particular time when- the installments in which they were made payable should become due, but that such assessments were not for that reason void as the defect could be cured by a subsequent act of Congress. Todd v. Macfarland, 30 App. D. C. 176; 30 W. L. R. 423. In a proceeding for the condemnation of land an objection that the ap- portionment of the assessments of benefits by the jury among the abutting land owners and a railroad company using the streets was unjust and in- equitable, can not be sustained, unless established by clear and indubitable Condemnation of Land. 177 evidence. Metropolitan R. R. Co. v. Macfarland, 20 App. D. C. 421; 30 W. L. R. 710. In a proceeding by a railroad company to condemn a right of way, benefits which the owners of the lands may receive through the increased value of the remaining land from the construction of the railroad can- not be set off against the value of the land actually taken. Maryland & Wash. R. R. Co. v. Hiller, 8 App. D. C. 289 ; 24 W. L. R. 249. The provision of the act of Congress of June 6, 1900, for the extension of Columbia Road, that if for any reason the assessments for benefits should be declared void, the Commissioners should make application to the court for a re-assessment, did not refer to the invalidity consequent upon judicial decision of the unconstitutionality of the act of March 3, 1899. Macfarland v. Byrnes, 19 App. D. C. 531; 30 W. L. R. 237. VIII. Power of Congress. The act of Congress of March 3, 1899, providing for the assessment on abutting lands and lands benefited of damages for and in respect of land condemned for the opening of streets, is within the power of Con- gress. Wight V. Davidson, 181 U. S. 371; reversing 16 App. D. C. 371. Whether the estimate of damages and the assessment of benefits shall be entrusted to the same or to different commissioners, is wholly within the discretion of Congress, as justice and convenience may appear to re- quire. Bauman v. Ross, 167 U. S. 548; 25 W. L. R. 359. Congress has the right to withdraw from condemnation proceedings and refuse to take property at its appraised value, and so held that the act of Aug. 7, 1894, having prohibited the Commissioners of the District from taking land appraised in proceedings had under the act of Dec. 21, 1893, mandamus will not lie to compel such taking. Ross v. Prospect Hill Cemetery, 8 App. D. C. 32; 24 W. L. R. 98. So much of § 11 of the Highway Extension Act of March 2, 1893, as provides that where only a part of a tract of land is taken, compensation shall be diminished to the extent of the benefits accruing to the remainder of the land, is beyond the power of Congress and void. Dis. of Col. v. Armes, 8 App. D. C. 393; 24 W. L. R. 278. IX. Appeals. An appeal lies to the Court of Appeals from a final order of the Supreme Court of the District in condemnation proceedings instituted under chap. 15 of the Code. Seuffele v. Macfarland, 28 App. D. C. 94; 34 W. L. R. 526. An appellate court will not interfere with the report of commissioners to correct the amount of damages, except in cases of gross error, showing prejudice or corruption. lb. The granting or refusing of a motion to vacate an order of the Su- preme Court of the District confirming a report of commissioners in condemnation proceedings, is not appealable. Dis. of Col. v. Prospect Hill Cemetery, 5 App. D. C. 497 ; 23 W. L. R. 162. Where in a condemnation proceeding an objection is made by the Gov- ernment that the valuation is excessive, and an appeal is taken from the order of confirmation, but the record on appeal contains nothing to show 178 Condemnation of Land. excessive valuation or the grounds upon which the valuation was based, the appeal presents no question for review. lb. As to jurisdiction of Court of Appeals of appeal from final order of Supreme Court D. C, sitting as a District Court of the United States, in a proceeding by a railroad company to condemn land. See Winslow V. Balto. & Ohio R. R. Co., 28 App. D. C. 126 ; 34 W. L. R. 501. A proceeding was instituted by a railroad company pursuant to au- thority given by Congress, to condemn part of a tract of land, part thereof to be used as a right of way and part to be used in relocating and straightening a road on which the land abutted. Such part of the tract was specifically described in the instrument of appropriation. The owners of the tract resisted the proceedings on the ground that the railroad was compellable under the law to take the entire tract and could not limit the proceedings to the part described. The land sought to be acquired was appraised at $35,393.50 and the damage to the residue at $10,000. No written exceptions to the award were filed and the railroad paid the amount into court. The award was confirmed, and on motion of the owners of the land, the $35,392.50 was paid over to them, and the $10,000 invested to abide the further order of the court. Thereafter the owners noted an appeal from so much of the decree of confirmation as failed to require the railroad to acquire the entire tract and as permitted it to limit its acquisition to the portion. Held, that, assuming that the owners might disregard the requirement as to written exceptions, the acceptance of the award estopped the owners from appealing in respect of the land taken and the legality of such taking, both with respect to that taken for the right of way and that taken for the relocation of the road; and that the order appealed from should be affirmed for the further reason that the appeal was not taken from that final order, but from the omission therefrom of things extraneous and irrelevant to the proceeding. Wins- loiv V. Balto. & Ohio R. R. Co., 28 App. D. C. 126; 34 W. L. R. 501; af- firmed in 208 U. S. 59. X. Generally. Where, by the discordant tenor of judicial decision parties to a con- demnation proceeding forego the right to have a second jury summoned, that right should be restored to them. Macfarland v. Byrnes, 19 App. D. C. 531 ; 30 W. L. R. 237. An act defining the time and manner in which the power of eminent domain is to be exercised must be strictly construed. The municipality can take nothing by implication, but there must be statutory authority for every step in the proceeding. In re Second Street Extension, 36 W. L. R. 16. An order of court confirming the valuation placed by commissioners upon lands sought to be taken under condemnation proceedings, while binding upon all persons as a determination of the question of value, creates no obligation on the Government to take the property at its ap- praised value. Dis. of Col. v. Prospect Hill Cemetery, 5 App. D. C. 497; 23 W. L. R. 162. The recording of the maps provided for by the Highway Extension Act of March 2, 1893, does not amount to the taking of land in the sense Condemnation of Unsafe Buildings — Confessions. 179 that it interferes with the enjoyment thereof. Dis. of Col. v. Armes, 8 App. D. C. 393; 24 W. L. R. 278. See also Highway Extension Act; Judgments and Decrees; Taxa- tion AND Assessment. CONDEMNATION OF UNSAFE BUILDINGS. The. act of Congress of March 1, 1899 (30 Stat., 923), relating to the removal of dangerous or unsafe buildings or parts thereof, etc., passed in the exercise of police power, is in derogation of rights and enjoyment of property, and must be strictly construed. Dis. of Col. v. Mattingly, 28 App. D. C. 176 ; 34 W. L. R. 670. The findings of a board of survey appointed under the provisions of the act of March 1, 1899, to determine whether a certain party wall, the removal of which had been ordered by the District authorities, was a dangerous structure, reviewed, and held not to show that the wall in question was a dangerous structure within the meaning of the statute; that the action of the District authorities in removing and rebuilding the wall and assessing a part of the cost thereof against the property of the -appellee was unauthorized, and that the court below was right in quashing the assessment. 76. The act of March 1, 1899, has no application to a case where one of two joint owners of a party wall, sufficient for the purposes for which it was erected, finds the wall insufficient for the purposes of a new building and desires its removal. In such case the provisions of § 74 of the Building Regulations applies, and the costs of removal and rebuilding the wall are to be borne by the party receiving the benefit from the change. Ih. CONDITIONAL DELIVERY. As to delivery of written instrument on condition resting in parol. See Donaldson v. Uhf elder, 23 App. D. C. 489 ; 31 W. L. R. 428. As to conditional delivery of sealed instrument to party to it and effect as waiver of benefit of condition. See Bieber v. Cans, 24 App. D. C. 517 ; 33 W. L. R. 51. CONDITIONAL LIMITATIONS. See Limitations. CONDITIONAL SALES. See Sales. CONDITIONAL WILLS. See Wills. CONFESSIONS. Confessions obtained by adjurations to spfeak the truth, or by artifice and fraud, are competent evidence. Hardy v. United States, 3 App. D. C. 35; 23 W. L. R. 326. The sufficiency and character of evidence required to show a confession in a criminal case is within the sound discretion of the trial court, and its exercise will not be disturbed on appeal except in case of palpable abuse. lb. Where several parties were under arrest, accused of murder, the fact that an officer said to one of them that if he did not hit the blow or could give any information ' about the case "we will see what we can do for you,'' held not to render inadmissible as evidence a full and voluntary confession of guilt made by the prisoner several days thereafter. lb. i8o Confession op Judgment — Congress. It is only where a confession is extorted by a deliberate excitation of hopes or fears by some actual promise or threats that it is not proper for the jury; otherwise it should be given to the jury with instruction to re- ject it entirely in case of reasonable doubt as to its voluntariness. lb. While the confession of a prisoner is often the most satisfactory evi- dence of guilt, it should never be admitted where there is a well-founded suspicion that it was made under the influence of inducements held out or threats made in order to extort it, by the officers of the law holding him in custody. Brady v. United States, 1 App. D. C. 246 ; 21 W. L. R. 665. As to determination of competency. See Brady v. United States, 1 App. D. C. 246; 21 W. L. R. 665. As to voluntariness of confession. See West v. United States, 20 App. D. C. 347; 30 W. L. R. 582. See also Divokce ; Evidence. CONFESSION OF JUDGMENT. As preference within meaning of act of Feb. 24, 1893. See Strasburger V. Dodge, 12 App. D. C. 37; 26 W. L. R. 9. CONFIDENTIAL RELATIONS. See Evidence; Fiduciaries. CONFIRMATION OF SALE. See SalBS. CONFLICT OF LAWS. The law of the State or county where a contract is to be enforced, not of that in which it was made, governs the question of the admissibility of evidence on a trial arising out of such contract. See National Express & T. Co. V. Morris, 15 App. D. C. 262 ; 27 W. L. R. 690. The patent laws of the United States are not in conflict with the com- mon law in respect of right of assignee of patent to maintain suit thereon in his own name. Armstrong-Whitworth & Co. v. Norton, 15 App. D. C. 323; 27 W. L. R. 414. As to assignment for the benefit of creditors. See Keane v. Chamber- lain, 14 App. D. C. 84 ; 27 W. L. R. 98. See also Contracts; Marriage; Wills. CONGRESS. I. Delegation of Power by. IT. Police Powers of. Til. Taxation and Assessment. TV. Incorporations by. V. Railroads. VI. Indians. VIT. Investigations by and Contempt of. VIII. In General. I. Delegation of Power by. Congress is without power to delegate to a judicial tribunal a determina- tion which does not involve an asserted and contested right, and which, when made, is not a final and conclusive one that may be given effect to by the power of the court. In re Macfarland, 36 W. L. R. 114. The power of Congress to change and enact rules of procedure has been delegated to the Supreme Court of the District. Fidelity & Deposit Co, V. United States, 187 U, S, 315, Congress. i8i The reservation in the acts of Congress permitting the B. & O. and B. & P. railroad companies to enter the District, of power in Congress to enact such rules and regulations as it might see proper, does not require the exercise of such power by the direct action of Congress exclusively, or preclude its delegation, by reasonable implication, to the municipal authorities of -the District. Balto. & 0. R. R. Co. v. Dis. of Col, 10 App. D. C. Ill; 25 W. L. R. 118. As to whether it is within the power of Congress to delegate to the Board of Medical Supervisors, or to any similar body, the authority to determine what shall constitute "unprofessional or dishonorable conduct" in a medical practitioner so far as to render him guilty of a criminal offense if he attempts to continue in his profession after having been ad- judged by said board guilty of such conduct. See Czarra v. Medical Su- pervisors, 24 App. D. C. 251; 32 W. L. R. 744. II. Police Powers of. Congress has the same police powers in the District as the State leg- islatures have within their several jurisdictions. Lanshurgh v. Dis. of Col, 11 App. D. C. 512 ; 25 W. L. R. 777. Congress, in legislating for the District of Columbia, possesses the com- bined powers of the General Government and that of a State ; and may appropriate money for the necessary care of the public health, and the maintenance of proper public charities. Roberts v. Bradfield, 12 App. D. C. 453; 26 W. L. R. 242. Congress was within its power in enacting the law of Feb. 2, 1899, de- claring the emission of dense black or gray smoke from smokestacks or chimneys a public nuisance, and punishable as an offense. Moses v. United States, 16 App. D. C. 428; 28 W. L. R. 578. Congress in legislating for the District of Columbia, has the undoubted right to designate the day of the week called Sunday and prohibit the performance of any labor thereon except works of necessity and charity. Dis. of Col V. Robinson, 36 W. L. R. 101. III. Taxation and Assessment. The power of Congress over the District of Columbia includes that of taxation. Parsons v. Dis. of Col, 170 U. S. 45. Where not restrained by constitutional bounds, the taxing power of Congress is limited only by the necessities of government; and the wis- dom or expediency of its action in the exercise of this power is beyond the control of the courts. Moore v. Miller, 5 App. D. C. 413; 23 W. L. R. 65. The true limitation of the power to impose taxes conferred by Art. I, § 8, of the Constitution is that the purpose must be governmental; and no amount of incidental public good or benefit will render valid taxation, or the appropriation of revenues to be derived therefrom, for a private pur- pose. Miles Co. V. Carlisle, 5 App. D. C. 138 ; 23 W. L. R. 33. Where Congress fixes the amount of charges for advertising property on which taxes are overdue, the courts have no power to interfere therewith. Burgdorf v. Dis. of Col, 7 App. D. C. 405 ; 24 W. L. R. 21. As to power of Congress to direct assessment of benefits on condemna- 1 82 Congress. tion of land for highways. See Bauman v. Ross, 167 U. S. 548; 25 W. L. R. 358. As to power of Congress to direct that the expense of a public im- provement be assessed upon the owners of land benefited thereby. See lb. In assessing lands for benefits accruing thereto from the construction of a public improvement, Congress may leave to commissioners the de- termination of the class of lands to be assessed. lb. It is wholly within the discretion of Congress whether the estimate of damages and assessment of benefits resulting from a public improvement, shall be entrusted to the same or to different commissioners. lb. The act of Congress of March 3, 1899, providing for the assessment on abutting lands and lands benefited of damages for and in respect of land condemned for the opening of streets, is within the power of Congress. Wight V. Davidson, 181 U. S. 371, reversing 16 App. D. C. 371. As to power relative to local improvements and assessing the benefits thereof. See Dis. of Col. v. Wormley, 15 App. D. C. 58; 37 W. L. R. 382. As to power to arbitrarily prescribe a minimum limit below which an assessment of benefits from a public improvement may not fall. See Davidson v. Wight, 16 App. D. C. 371; 38 W. L. R. 303. IV. Incorporations by. Congress has power to incorporate within the District a religious estab- lishment, association or society under the express control of a church or sect. Roberts v. Bradfield, 12 App. D. C. 453 ; 26 W. L. R. 242. Although a telephone company may be incorporated by Congress and specially granted the right to carry on business in the District, Congress might also grant a franchise to somfe other corporation with the right to take and use the cables and poles of the former company, provided pro- vision be made at the same time for the regular ascertainment and prompt payment of just compensation therefor. Manning v. Telephone Co., 18 App. D. C. 191; 39 W. L. R. 238. The right reserved in an act of incorporation to alter, amend or repeal, does not confer the power to declare a legislative forfeiture or to enact a legislative judgment. United States v. Metropolitan R. R., 21 W. L. R. 787. V. Railroads. Under the power reserved to Congress in the charter of the Metropoli- tan Railroad Company (act of Congress of July 1, 1864), and in the charters of the other companies subsequently embraced by said company, at any time to alter, amend, or repeal said charters, it was competent for Congress, by the act of June 6, 1900, to require that company to extend its line from its present terminus along Columbia Road and Sixteenth street to Park street, regardless of the consent of that company. Metro- politan R. R. Co. V. Macfarland, 30 App. D. C. 421 ; 30 W. L. R. 710. It was competent for Congress, by act of June 6, 1900, to provide that the streets along which the line of the Metropolitan Railroad Company was to be extended should be widened and graded by and under the Congress. 183 authority of the Commissioners of this District, and to direct the assess- ment against said railroad company of a fair proportion of the expense of widening said streets, said assessment to be in proportion to the benefits that company would receive from the improvement, in common with the abutting land owners. lb. VI. Indians. The act of June 28, 1898, giving the Secretary of the Interior power to lease certain Indian lands, held a valid exercise of the power of Con- gress. Cherokee Nation v. Hitchcock, 187 U. S. 294. The power of Congress to administer upon and guard tribal property is political and administrative in its nature, and the manner of its exercise is not a question for the courts. lb. As to power of Congress to abrogate provisions of an Indian treaty. See Lone Wolf v. Hitchcock, 187 U. S. 553 ; 31 W. L. R. 46. As to power of Congress over Indians. See Naganab v. Hitchcock, 25 App. D. C. 200; 33 W. L. R. 248; Lone Wolf v. Hitchcock, 187 U. S. 553 ; 31 W. L. R. 46 ; Cherokee Nation v. Hitchcock, 187 U. S. 294. VII. Investigations by and Contempt of. It -vyas within the power and jurisdiction of the Senate to make the in- quisy palled for by the resolution of May 17, 1894, relative to charges of bribery of its members, contributions made by the Sugar Trust for cam- paign purposes and as to whether any of its members had speculated in stocks which would be affected by a pending tariff bill; and that power included the compulsory attendance of witnesses before the committee of investigation and requiring them to answer questions pertinent to the matter of inquiry. Chapman v. United States, 5 App. D. C. 122 ; 23 W. L. R. 17. Neither house of Congress is invested by the Constitution with a gen- eral power to punish for contempt, but such power is limited and re- stricted to such matters as they have jurisdiction to inquire into. lb. The existence of the inherent power in the houses of Congress to punish for contempts did not preclude the passage of the act of Jan. 24, 1857, prescribing additional penalties to those already existing by virtue of such inherent powers. lb. Where a witness summoned to appear and testify before a committee of the Senate refuses to answer questions pertinent to the subject under inquiry, the refusal necessarily implies wilfulness in a legal sense, and the question of bad faith or evil intent is of no consequence. Chapman v. United States, 8 App. D. C. 303 ; 24 W. L. R. 351. In the examination of a witness by a Senate committee of investigation, no private affairs pertinent to the subject of inquiry, are too sacred to be the subject of the examination unless protected on some ground of privilege. lb. Where an inquiry directed to be made by the Senate was a proper one, and one within the constitutional right and authority of that body, and the questions propounded to the witness ^ere pertinent, held, that there was no unreasonable search into the private affairs of the witness such as is prohibited by the Fourth Amendment to the Constitution. lb 184 Congress. Questions propounded a witness in such inquiry, as to whether or not, during the pendency of the tariff bill, he had bought or sold any such stocks for any Senatoi-s, or was carrying any for them, were pertinent to the subject matter of the inquiry, and his refusal to answer was at his peril and he must abide the consequences of his refusal. Chapman v. United States, 5 App. D. C. 122 ; 23 W. L,. R. 17. Section 102, Rev. Stat., is not necessarily to be read in connection with § 103, but stands alone. lb. Section 102, Rev. Stat., providing for the punishment of recalcitrant wit- nesses, is constitutional and valid. lb. A person indicted as a contumacious witness before a Congressional committee is not put twice in jeopardy by such criminal prosecution had after the adjournment of the session of Congress at which the investiga- tion was held, the possibility of punishment by Congress for contempt having been removed by the adjournment. Chapman v. United States, 8 App. D. C. 302 ; 24 W. L. R. 251. Section 104, Rev. Stat., authorizes and makes it mandatory upon the president of the Senate to certify the contumacy of a witness summoned to testify before a committee of that body, and for that purpose to use the seal of the Senate. lb. No action by the Senate on the report of its committee is required as preliminary to the attachment of its seal or to certification by the president thereof to the district attorney. lb. In a prosecution under § 102, Rev. Stat., it is not necessary to allege in the indictment, or to make proof at the trial, that action was had by the president of the Senate or that a certificate was sent by him to the district attorney and by the latter laid before the grand jury. lb. VIII. In General. As to privilege of members from suit. See Howard v. Citizens' B. & T. Co., 12 App. D. C. 222; 26 W. L. R. 101. As to power to fix rates of telephone company. See Manning v. Tele- phone Co., 26 W. L- R. 499. As to power of Congress to limit hours of labor on public works in the District of Columbia. See Penn Bridge Co. v. United States, 35 W. L. R. 287. Article I, § 8, of the Constitution does not confer upon Congress the power to provide for the payment of bounties to private individuals. Miles Co. V. Carlisle, 5 App. D. C. 138; 23 W. L. R. 33. As to power reserved by Congress relative to second-class mail mat- ter. See Payne v. National Ry. Pub. Co., 20 App. D. C. 581; 30 W. L. R. 791. As to power of Congress to regulate the relative rank of officers of the Array and Navy. See Edwards v. Root, 22 App. D. C. 419; 31 W. L. R. 679. As to powers over the Potomac River. See Smoot v. Dis. of Col, 23 App. D. C. 266; 32 W. L. R. 183. As to right to withdraw from condemnation proceedings. See Ross v. Prospect Hill Cemetery, 8 App. D. C. 32; 24 W. L. R. 98. As to whether it is competent for Congress to authorize the rendition Congee;ss. 185 of a judgment in an action of ejectment, or in any other actioti in per- sonam, upon mere constructive notice by publication. See Staffan v. Zeust. 10 App. D. C. 360 ; 25 W. L. R. 188. Congress, in the exercise of its general and exclusive power of legis- lation over this District, may provide for the trial of civil causes of mod- erate amount by a justice of the peace, or, in his presence, by a jury of tw^elve, or any less number, allowing to either party, where the value in controversy exceeds $30, the right to appeal from the judgment of the justice to a court of record, and to have a trial by jury in that court. Capitol Traction Co. v. Hof, 174 U. S. 1 ; 27 W. L. R. 262. It was competent for Congress, in legislating for this District, to pro- vide for the empaneling of a common law jury in the court of a justice of the peace. Brightwood Ry. Co. v. O'Neal, 10 App. D. C. 305 ; 35 W. L. R. 98. As to power to give creditors the right to proceed in equity without first reducing their claims to judgment. See Strasburger v. Dodge, 12 App. D. C. 37; 36 W. L. R. 9. As to effect of declaration in act of March 3, 1897, of the policy of the Government to make no appropriations to sectarian institutions. See Roberts v. BradAeld, 12 App. D. C. 453 ; 36 W. L. R. 342. As to power to make ordinance enacted that of the District of Colum- bia. See Dempsey v. Dis. of Col., 1 App. D. C. 63 ; 21 W. L. R. 389. Congress, in legislating for the District, has power to require, as to existing causes of action, that suits therefor should be barred unless brought within a period less than that prescribed when the cause of action accrued. Gwin v. Brown, 31 App. D. C. 395 ; 31 W. L. R. 238. Courts will not inquire into the wisdom of the decision of Congress as to what constitutes a reasonable time within which suits for cause ac- cruing prior to the enactment of a new statute of limitations, may be brought, unless the time allowed would constitute a denial of justice. lb. The regulation of callings affected with a public interest, including charges for services rendered, is a function of the legislature, and courts have no right to inquire into the amount of information possessed by the legislature, or its motives in exercising the power. The exercise of the power is not dependent upon notice and hearing. Manning v. Telephone Co., 18 App. D. C. '191; 29 W. L. R. 238. Congress will be presumed to have acted advisedly and with full knowledge of the situation in enacting the provision of the act of June 30, 1898, regulating telephone rates, although the committees appointed to investigate the matter never made any report. Ches. & Pot. Telephone Co. V. Manning, 186 U. S. 338; 30 W. L. R. 386. A legislative body, in conferring a right, may fix a limitation to the exercise of such right, so that where a statute gives a right of action or proceeding which did not exist at the common law and fixes the time within which the right may be enforced, the time so -fixed becomes a limitation or condition on such right, and will control, no matter in what forum the action may be brought. In re Second Street Extension, 36 W. L. R. 16. Sections 103-104, Rev. Stat., are not unconstitutional as an invasion of l86 CoNGRESSidNAI, iNVIlSTiGATiONS — CoN^pIrACV. the right of the Senate and House of Representatives to make their owri rules. Chapman v. United Stales, 8 App. D. C. 303; 24 W. L,. R. 251. A bill which only incidentally carries an appropriation, although such appropriation may be a necessity for the efficiency of the bill, is not con- stitutionally barred from originating in the Senate. Millard v. Roberts, 25 App. D. C. 231; 33 W. L. R. 198. It is for Congress and not for the courts to control the effect of a strict enforcement of a statute under the only construction of which it is fairly susceptible, whereby the manufacture of gas in the District is virtually rendered impossible. Holden v. United States, 34 App. D. C. 318; 33 W. L. R. 34. See also Constitutional Law; Courts. CONGRESSIONAL INVESTIGATIONS. See Congrbss. CONGRESSIONAL RESTAURANTS. Restaurants in the capitol building are not within the provisions of the act of March 3, 1893, regulating the sale of intoxicating liquors. Page v. Dis. of Col, 20 App. D. C. 469 ; 30 W. L. R. 758. CONSENT DECREE. See Judgments and Decrebs. CONSENT REFERENCE. See Reference to Auditor. CONSIDERATION. As to return of consideration by one seeking to disaffirm a contract on the ground of infancy. See Utermehle v. McGreal, 1 App. D. C. 359 ; 31 W. L. R. 755 ; McGreal v. Taylor, 167 U. S. 688 ; 25 W. L. R. 558. A waiver to be valid and binding must be supported by consideration or estoppel. Bieber v. Cans, 34 App. D. C. 517 ; 33 W. L. R. 51. As to time for making tender of return of consideration for release of claim for personal injuries sought to be avoided on the ground of fraud. See Rockwell v. Traction Co., 35 App. D. C. 98 ; 33 W. L. R. 338. See also Assignments; Bills and Notes; Contracts; Deeds, Etc. CONSOLIDATION OF CAUSES. See Actions. CONSOLIDATION OF INDICTMENTS. See Criminal Law. CONSPIRACY. In cases of conspiracy the overt act of each conspirator when done in pursuance of the conspiracy, or in reference to the common object, be- comes the act of all and is original evidence against all. Crawford v. United States, 35 W. L. R. 478. All who accede to a conspiracy after its formation and while it is in execution, and all who, with a knowledge of the facts concur in the plans originally formed and aid in executing them, are fellow conspirators. Buck Stove Co. V. American Federation of Labor, 35 W. L. R. 797. In a suit to enjoin an alleged unlawful combination and conspiracy to destroy a business by means of a boycott, held, that the record disclosed the existence of such an unlawful combination and conspiracy which would be enjoined pendente lite. lb. An indictment charging the defendants with conspiracy to cheat and defraud the members of a partnership by false pretenses, consisting in Conspiracy. 187 falsely representing that defendants were representatives and collectors for a firm publishing a mercantile directory; that one Y, to whose busi- ness the partnership succeeded, had contracted to advertise the business in said publication ; that they were authorized to collect the price for said advertisement; that defendants well knew there was no such firm and that they were not the representatives or collectors of such firm; that on a date named defendants had conspired and agreed together to cheat and defraud the members of said partnership of their money, and on said date had received a check payable to the order of said firm and signed by a member of said partnership, held sufficiently to charge the offense of con- spiracy under § 5440, Rev. Stat., and to furnish defendants with the de- tails of the charges against them. Geist v. United States, 26 App. D. C. 594 ; 34 W. L. R. 257. In an indictment for a conspiracy to commit an offense, it is not re- quired that the offense be described with the same precision as required in describing the offense itself. Ih. The joinder in one indictment of forty-two counts, each charging a conspiracy to defraud the United States out of the possession of and title to its public lands, is authorized by § 1034 R. S. ; but it is within the discretion of the trial court, where the offense charged in the several counts is the same, to require the Government to elect upon which it will go to trial. Hyde v. United States, 27 App. D. C. 362 ; 34 W. L. R. 494. An indictment for conspiracy alleging that defendants, with other persons, conspired to defraud the United States of the title to divers large tracts of the public lands open and to be open to selection in lieu of lands included within forest reserves established and to be established in Cali- fornia and Oregon, in pursuance and by means of a false and fraudulent practice whereby certain defendants were to obtain from those States school lands within such forest reserves and exchange such lands for the public lands of the United States, held not defective in failing to describe the particular tracts of land to which the alleged conspiracy related. lb. When persons enter into a conspiracy to defraud the United States of public lands, the crime is complete, even when no particular lands are selected by them. It is enough that the conspiracy had in view the ac- quiring of the lands ; and it is not essential that in the minds of the con- spirators the lands shall have already been identified. Ih. An indictment for conspiracy to defraud the United States of title to public lands held not too vague or uncertain in its allegations as to the means to be used in carrying out the alleged fraud. Ih. When an officer of a department of the Government, charged with a public trust in connection with contracts made by third parties to furnish supplies to that department, and with the duty of giving the Government the full measure of his unbiased judgment, enters into an agreement with such contracting third party by which he is to receive a part of the pro- ceeds of that contract, the Government is defrauded of his services. Craw- ford V. United States, 35 W. L. R. 478. Under § 5440, Rev. Stat., the word "defraud" does not refer solely to property and pecuniary interests, and any agreement, the object of which is to deprive the Government of the services of those who are entrusted 1 88 Conspiracy. with the discharge of duties which are essential to its proper adminis- tration, is a conspiracy to defraud. lb. The construction of § 5440, Rev. Stat., to include an agreement to de- prive the Government of the services of one of its officers, does not render it void for uncertainty. lb. As to sufficiency of indictment for conspiracy to defraud the United States under § 5440, Rev. Stat. See United States v. Beavers, 34 W. L- R. 63; Lorem v. United States, 34 App. D. C. 337; 33 W. L. R. 822; Tyner v. United States, 33 App. D. C. 334; 32 W. L. R. 358. Conspiracy to defraud the United States denounced by § 5440, Rev. Stat., extends to cases of official misconduct. Tyner v. United States, 23 App. D. C. 324; 33 W. L. R. 258. Conspiracy to commit official misconduct is punishable under § 5440, Rev. Stat. lb. As to sufficiency of indictment for conspiracy to commit the oflense of misconduct in office. See United States v. Beavers, 34 W. L. R. 63. Where, in an indictment under § 5440 R. S., for conspiracy to de- fraud the United States, the counts subsequent to the first, in charging the conspiracy, expressly refer to the "same dishonest scheme and ar- rangement described and set forth in the first count," such reference is sufficient, and it is unnecessary to set forth the scheme in detail in the subsequent counts, horenz v. United States, 24 App. D. C. 337; 33 W. L. R. 823. The omission to repeat in the subsequent counts the averments of the first count, if a defect, is purely formal, and cured by § 1025 R. S. lb. An indictment for conspiracy to defraud the United States alleged that M., a government official, charged with the duty of ascertaining the cost of supplies needed in the administration of his office and of in good faith advising his superior officer to order the purchase of and payment for the same, advised and procured the purchase of letter box fasteners at $1.25 each, knowing at the time they could be bought for 75 cents each, and that he confederated with the other defendants in the doing of this act and in defrauding the United States. Held, that the indictment charged the commission of an offense under § 5440 R. S. lb. In such case it is not necessary to allege in the indictment a want of knowledge on the part of the superior officer, or that he was deceived and fraudulently imposed upon by the acts and representations of his subordinate. lb. An instruction that if a conspiracy was entered into between M. and one only of the defendants, the other defendants being ignorant thereof, the jury should acquit all the defendants, held properly refused, as also an instruction that if the price of the fastener was fixed by the Govern- ment before the alleged conspiracy was entered into, the defendants must be acquitted. lb. On the trial in this District of an indictment under § 5440 R. S. for conspiracy to defraud the United States, the several defendants are, under § 918, Code D. C, to be treated as one in the allowance of per- emptory challenges, and are together entitled to but ten such challenges. Ih. Evidence by an employee familiar with the business of the office that CoNSTABivEs — Constitutional Law. 189 the initials of M. on an order for supplies indicated that it was regular and correct and that there was nothing for his superior officer to do but to sign the same, and by such superior officer to the effect that M. was charged with the duty of deciding for him all matters relating to supplies in cases where no question was raised, and would indicate his decision by indorsing his name or initials thereon, which documents would be signed by him in reliance upon the initials of M. endorsed thereon, held competent. lb. Statements by defendants in a prosecution for conspiracy, made after the termination of all acts in futherance of the conspiracy held properly admitted in evidence where the jury were instructed that they could be considered only against the parties making them and only for the purpose of connecting them with the conspiracy, if the jury should find from other evidence that one had been entered into, and that such state- ments were not to be considered by the jury in determining whether or not the defendants were guilty of the crime of conspiracy. lb. A question asked of M. on cross-examination as to whether he had any sources of income other than his official salary held relevant under the circumstances. lb. The error, if any, in admitting in evidence documents from the files of the Postoffice Department bearing what purported to be initials of M. without proof that he wrote them, and it being shown that in some instances they were written by a clerk in his office, held cured by subse- quent testimony by the clerk and by M. that she had authority from him to sign his initials on such documents. lb. Where fraud and conspiracy must necessarily be proved by circum- stantial evidence, a wide range of the evidence is permitted. lb. When there is a conflict of evidence whether a statement alleged to have been made by one of the parties to an alleged conspiracy was ob- tained by force or threats or by holding out offers of immunity or re- ward, the preponderance of evidence being on the side of its voluntari- ness, it is not error "for the trial court to admit the statement, leaving the final determination of whether or not it was voluntary to the jury, with instructions to disregard it if they found it was not free and voluntary. lb. When a conspiracy has been entered into and an overt act done in pur- suance thereof, the offense denounced by § 5440 R. S. is complete, and the statute of limitations begins at once to run. But by the repetition of the overt acts the conspiracy is made a continuing offense. By each subsequent act it is repeated and entered into anew. lb. See also Combinations in Restraint of Trade; Criminai, Law; Ex- tradition; Pleading and Practice. CONSTABLES. As to duty in respect of writs received from justice of the peace. See In re Gould, 28 W. L. R. 85. CONSTITUTIONAL LAW. I. Contract Impairment. II. Cruel and Unusual Punishments, III, Double Jeopardy. igo Constitutional Law. IV. Due Process of Law. V. Equal Protection of Laws. VL Executive Powers. VIL Extradition. VIIL Eminent Domain. IX. Bx post facto Laws. X. Full Faith and Credit. XL Judiciary. XII. Legislative Powers. XIII. Privileges and Immunities. XIV. Religious Freedom. XV. Trial by Jury. XVI. Unreasonable Searches and Seizures. XVIL In General. I. Contract Impairment. The imposition by Congress of a condition upon which a foreign tele- phone company may do business in the District, held, not unconstitutional as impairing the obligation of contracts entered into by the company with other persons. Manning v. Telephone Co., 18 App. D. C. 191; 39 W. L. R. 342. II. Cruel and Unusual Punishments. The sentence of one convicted of criminal libel to imprisonment in the penitentiary for five years with hard labor, as provided by statute, is not a cruel and unusual punishment within the meaning of the constitutional prohibition. It is not so much the extent as the nature of the punishment that makes it cruel and unusual. Raymond v. United States, 35 App. D. C. 555; 33 W. L. R. 514. III. Double Jeopardy. One is in jeopardy, within the meaning of the Fifth Amendment to the Constitution when put upon trial before a court of competent jurisdiction, upon an indictment sufficient to sustain a conviction, and a jury has been impanelled and sworn to try him. N ordlinger v. United States, 24 App. D. C. 406 ; 32 W. L. R. 810. The test of the identity of offenses on a plea of former acquittal, is, whether the facts sufficient to support a conviction under the second in- dictment would have been sufficient, if proved, to warrant a conviction under the first. lb. Where one was indicted for the larceny of a piano and a verdict of acquittal was erroneously directed because of an apparent variance, the proof showing that the instrument stolen was called an "autolectra," and thereupon the grand jury returned a second indictment in which the in- strument was styled "autoelectra," the accused was entitled to discharge on a plea of former acquittal. lb. A former conviction of assault and battery is not a bar to a subsequent indictment for murder, where the person assaulted dies within a year and a day. Hopkins v. United States, 4 App. D. C. 430 ; 33 W. L. R. 838. The offense contemplated in the Fifth Amendment is one for which the offender may be put upon trial in the ordinary courts of criminal jurisdiction and where the plea of former acquittal or conviction may be proper. Chapman v. United States, 8 App. D. C. 303 ; 34 W. L. R. 251. Constitutional Law. 191 It is the fact of being twice put in jeopardy, or the liabiUty of being twice put upon trial for the same offense that the Constitution prohibits, not the enactment of legislation that might in its enforcement, in connec- ion with other action, have the effect of imposing a double penalty for the same offense ; and so held as to a prosecution under §§ 102-104, Rev. Stat., where the trial is had after the Congress of which the party was in contempt had adjourned. lb. A person indicted as a contumacious witness before a Congressional committee is not put twice in jeopardy by such criminal prosecution had after the adjournment of the session of Congress at which the investiga- tion was held, the possibility of punishment by Congress for contempt having been removed by the adjournment. lb. When a decision of the board of medical supervisors revoking the li- cense of a physician is reversed on the ground of the insufficiency of the complaint, the filing of a new and effective complaint against him based upon the same acts, does not constitute a second jeopardy. Czarra V. Medical Supervisors, 25 App. D. C. 443 ; 33 W. L. R. 470. IV. Due Process of Law. The guarantee of the Constitution requires that a judgment shall not be in excess of the jurisdiction of the court rendering it, which is the case when there has been no valid verdict. Dis. of Col. v. Humphries, 12 App. D. C. 123; 26 W. L. R. 37. Where the legislature, in taxing lands benefited by a highway or other public improvement, makes provision for notice to each owner of the land and for hearing at some stage of the proceedings upon the question of what proportion of the tax shall be assessed against his land, his prop- erty is not taken without due process of law. Bauman v. Ross, 167 U. S. 548; 25 W. L. R. 358. The act of Congress of June 6, 1900, compelling the Metropolitan Rail- road Company to extend its tracks along certain streets is not unconsti- tutional as a taking of property without just compensation or due process of law. Metropolitan R. R. Co. v. Macfarland, 20 App. D. C. 421 ; 30 W. L. R. 710. Due process of law extends to every case which may deprive a citizen of life, liberty or property, whether the proceedings be judicial, adminis- trative or executive in character. Allman v. Dis. of Col., 3 App. D. C. 8 ; 22 W. L. R. 201. A proceeding which fastens a charge upon property, for which it may be summarily sold, without notice and an opportunity given the owner to be heard as regards its validity and fairness, is not due process of law. lb. Reasonable notice to owners of property, at some serviceable stage of the proceedings, is absolutely necessary to the validity of an assessment. lb. The procedure provided for by the act of Congress of January 31, 1899, for the commitment of insane persons, constitutes due process of law. Matter of Murdoch, 35 W. L. R. 126. As to sufficiency of notice of lunacy proceedings. See Logue v. Penning, 29 App. D. C. 519 ; 35 W. L. R. 382, 192 Constitutional Law. As to validity of commitment to Reform School. See Rule v. Geddes, 23 App. D. C. 31; 33 W. L. R. 35. As to what constitutes due process of law. See Wedderburn v. Bliss, 12 App. D. C. 485 ; 26 W. L. R. 293. V. Equal Protection of Laws. Par. 15, § 6, of the act of Congress of July 1, 1902, in so far as it re- quires general brokers, as therein defined, to pay a license tax of $250 per annum, while providing, in the second proviso of said paragraph, that any broker who is a member of a regularly organized stock exchange located outside of the District of Columbia and transacting a brokerage business therein shall pay a sum equal to $100 per annum, makes an unreasonable discrimination between persons engaged in the same general business, and to that extent is within the prohibition of the Fifth Amendment of the Constitution. Lappin v. Dis. of Col., 22 App. D. C. 68; 31 W. L. R. 308. The act of Congress of Feb. 10, 1904, providing for the removal of ice and snow from streets and sidewalks held void for irregularity and unjust discrimination between citizens similarly situated. McGuire v. Dis. of Col, 24 App. D. C. 22 ; 32 W. L. R. 374. The act of Congress of May 19, 1896, providing for the drainage of lots, held unconstitutional as discriminating between resident and non- resident owners. Dis. of Col. v. Brooke, 29 App. D. C. 563; 35 W. L. R, 318. As to constitutionality of §§ 892, 893 of D. C. Code relative to hours of labor on public works. See Penn Bridge Co. v. United States, 35 W. L- R. 287. VI. Executive Powers. See Army and Navy. VII. Extradition. As to what constitutes a fugitive from justice within meaning of § 2, Art. IV, of the Constitution. See In re Lyon, 24 W. L. R. 679. VIII. Eminent Domain. The just compensation required by the Fifth Amendment to be paid • owners of private property taken for public use means the actual value of the property taken, payable in money and without diminution on account of benefits, general or special. Maryland &■ Wash. R. R. Co. v. Hiller, 8 App. D. C. 289 ; 24 W. L. R. 249 ; Dis. of Col. v. Armes, 8 App. D. C. 393 ; 34 W. L. R. 278. The compensation required by the Constitution for taking private prop- erty for public use means legal tender money. The compensation must be coextensive with the property taken. Where, by the taking of a part of one's property he is divested of the beneficial use of the remainder, he is entitled to compensation for the injury suffered. Dis. of Col. v. Prospect Hill Cemetery, 5 App. D. .C. 497 ; 23 W. L. R. 162. The estimate of the just compensation for property taken for public use under the right of eminent domain is not required by the Constitu- tion to be made by a jury; but may be entrusted by Congress to com- missioners appointed by the court or the executive, or to an inquest con- sisting of more or fewer men than constitute an ordinary jury. Bauman V. Ross, 167 U, S. 548 ; 25 W, L, R*, 359, CoNSTlTUTlONAIv LaW. I93 Section 11 of the Highway Extension Act of March 2, 1893, held un- constitutional as an attempt by Congress to take private property for pub- lic use without just compensation. Dis. of Col. v. Armes, 8 App. D. C. 393; 24 W. L. R. 278. The act of Congress of March 2, 1893, to establish a system of high- ways in the District, is unconstitutional and void as attempting to take private property for public use without just compensation, in that it pro- vides for payment in benefit to be received in future, contingently. In re Condemnation of Land, 24 W. L. R. 65. Section 6 of the act of Sept. 27, 1890, for the establishment of Rock Creek Park is not unconstitutional in that it provides for special assess- ments on property in the District in establishing a benefit for the people of the United States. Wilson v. Lambert, 168 U. S. 611. Section 6 of the act of 1890, establishing Rock Creek Park is unconsti- tutional and void as attempting to take private property for public use without due process of law and just compensation. Craighill v. Van Ris- wick, 8 App. D. C. 186 ; 24 W. L. R. 177. An injury to land bordering on the Potomac river caused by the waters of the river holding in suspension or solution sewage deposited therein from a public sewer with the resultant foul odors carried over the land by the air, is a mere consequential matter resulting from the exercise of the right in Congress to use the bed of the river for the discharge of the sewage of the city of Washington, and is damnum absque injuria and not a taking of property within the meaning of the Constitution. Seufferle V. Macfarland, 28 App. D. C. 94; 34 W. L. R. 526. IX. Ex post facto Laws. No question of an ex post facto law can arise where the conviction of a physician was had upon a law previously enacted by Congress and not upon any regulation of the board of medical supervisors made thereunder. Czarra v. Medical Supervisors, 25 App. D. C. 443 ; 33 W. L. R. 470. X. Full Faith and Credit. The full faith and credit clause of the Constitution does not require the enforcement of a judgment rendered without jurisdiction or otherwise without due process of law. Wetmore v. Karrick, 205 U. S. 141 ; af- firming 25 App. D. C. 415. The full faith and credit clause has no application to a decree passed by a foreign court in a divorce suit and awarding the custody of infants who were at the time and ever since the institution of such suit within the jurisdiction of the courts of this District, so as to preclude the latter courts from determining the custody of the infants. Seeley v. Seeley, 36 W. L. R. 4. A decree attempting to determine the custody of an infant not within the territorial jurisdiction of the court rendering it, is not within the full faith and credit clause of the Constitution. Seeley v. Seeley, 35 W. L. R. 98. Full faith and credit does not extend to a judgment rendered without jurisdiction of the person or which is not responsive to the issue made by the pleadings. Slack v. Perrine, 23 W. L. R- 853. XI. Judiciary. 194 Constitutional Law. The general restrictions which govern the exercise of jurisdiction by the courts of the United States have no operation in this District. Guil- ford Granite Co. v. Harrison Co., 23 App. D. C. 1; 31 W. L. R. 759. That part of the act of Congress of Aug. 7, 1894, which directs the Supreme Court of the District to vacate its order confirming the report of commissioners in respect of the appraisement of lands for the open- ing of North Capitol street under the act of Dec. 21, 1893, is uncon- stitutional and void as a legislative invasion of judicial power. Ross v. Prospect Hill Cemetery, 8 App. D. C. 32; 24 W. L. R. 98. XII. Legislative Powers. The act of Congress of Feb. 28, 1903, to provide a union railroad sta- tion in the District of Columbia, and for other purposes, construed in connection with the act of Congress of Feb. 12, 1901, providing for the elimination of grade crossings in this District, and carrying an appropria- tion of $1,500,000 to be paid to each of two railroad companies as the share of the District in carrying these acts into effect, held not unconsti- tutional and void as being an appropriation of public money for private use nor by reason of the fact that the bills originated in the Senate and not in the House of Representatives. Millard v. Roberts, 25 App. D. C. 221 ; 33 W. L. R. 198. A bill which only incidentally carries an appropriation, although such an appropriation may be a necessity for the efficiency of the bill, is not constitutionally barred from originating in the Senate. lb. The provision of § 41 of the National Bank Act, imposing a tax or charge on the circulating notes of national banks is not invalid as vio- lative of § 7, Art. I, of the Constitution, in that it originated in the Senate by amendment. Ttmn City Nat. Bank v. Nebeker, 3 App. D. C. 190; 22 W. L. R. 256. Section 102, Rev. Stat., providing for the punishment of recalcitrant witnesses in Congressional investigations, is constitutional and valid. Chapman v. United States, 5 App. D. C. 122 ; 23 W. L. R. 17. Chapman v. United States, 5 App. D. C. 122; followed and affirmed as to constitutionality of a Senate investigation. Chapman v. United States, 8 App. D. C. 302; 24 W. L. R. 251. Sections 102-104, Rev. Stat., are not unconstitutional as an invasion of the right of the Senate and House of Representatives to make their own rules. lb. The provisions of the Oleomargarine Act of Aug. 2, 1886, are not un- constitutional because the duty of making regulations to carry the act into effect is devolved upon the officers of the Treasury Department. Kollock V. United States, 9 App. D. C. 420; 25 W. L. R. 41. Article I, § 8 of the Constitution does not confer upon Congress the power to provide for the payment of bounties to private individuals, and the provisions of the act of Oct. 1, 1890, for the payment of bounties to sugar producers, are therefore void. Miles Co. v. Carlisle, 5 App. D. C. 138 ; 23 W. L. R. 33. The true limitation of the power to impose taxes conferred upon Con- gress by Art. I, § 8, of the Constitution is that the purpose must be governmental; and no amount of incidental public good or benefit will Constitutional Law. 195 render valid taxation, or the appropriation of revenues to be derived therefrom, for a private purpose. lb. Congress may not in legislating for the District of Columbia, deny its residents the equal protection of laws ; so held as to discrimination in the imposition of license taxes. Lappin v. Dis. of Col., 22 App. D. C. 68; 31 W.L. R. 308. The creation of corporations and their amendment, embracing the reg- ulation of the amount of their capital stock, is a subject matter exclu- sively within the legislative power, which cannot be delegated, though, under a general act, complete in its details, certain functions relating to the final act of issuing the certificate of incorporation, may be delegated to special agencies. In re Macfarland, 36 W. L. R. 114. The duty of ascertaining the value of the plant of the Washington Gas Light Company and of its future extensions and enlargements, as the basis for increasing its capital stock, is a legislative duty, involving the exercise of no judicial power, in the constitutional sense, and Congress cannot therefore impose it upon the courts of the District. lb. As to power of Congress to direct assessment of benefits on condemna- tion of land for highways. See Bauman v. Ross, 167 U. S. 548 ; 25 W. L. R. 358. The act of March 3, 1891, requiring the payment of a reversed judg- ment by a railway company, under penalty of forfeiture of charter, is void as an interference with the judicial department of the government. United States v. Metropolitan R. R., 21 W. L. R. 787. The right reserved in an act of incorporation to alter, amend or repeal, does not confer upon Congress the power to declare a legislative for- feiture or to enact a legislative judgment. Such judgment would be void as depriving defendant of property without due process of law. lb. As to power of Congress to punish for contempts. See Chapman v. United States, 5 App. D. C. 122 ; 23 W. L. R. 17. See also Congress. XIII. Privileges and Immunities. The Commissioners' regulation of Oct. 20, 1898, giving to the P. W. & B. R. R. Co. the exclusive use of a space in a public street as a cab stand, and the joint resolution of Congress of June 9, 1898, in so far as it may be construed to authorize the concession of such exclusive privileges, are unconstitutional. Curry v. Dis. of Col., 14 App. D. C. 423; 27 W. L. R. 286. XIV. Religious Freedom. Under the constitutional guaranty of religious freedom, a legislature cannot enforce the observance of Sunday as a religious obligation, but may do so as a civil duty. Dis. of Col. v. Robinson, 36 W. L. R. 101. The provision against the passage of laws respecting an establishment of religion, is not violated by the act of June 4, 1897, making appropria- tion for the erection of buildings on the grounds of Providence Hospital. Bradfield v. Roberts, 175 U. S. 291 ; 28 W. L. R. 3. XV. Trial by Jury. The provisions of the Constitution of the United States securing the 196 CoNSTlTUTlONAIy LaW. right of trial by jury, whether in civil or in criminal cases, are appli- cable to the District of Columbia. Capital Traction Co. v. Hof, 174 U. S. 1 ; 27 W. L. R. 262. The right of trial by jury is not unduly obstructed by the provisions enlarging the jurisdiction of justices of the peace to $300 and requiring every appellant to give security to pay and satisfy the judgment of the appellate court. lb. As to what constitutes a trial by jury within the meaning of the com- mon law and of the Seventh Amendment of the Constitution. See lb. The constitutional provision of the right of trial by jury does not ex- tend to causes in which the United States are defendants. Purcell En- velope Co. V. Smith, 26 W. L. R. 515. The right of trial by jury secured by the Seventh Amendment is a trial by jury as known to the common law at the time of the adoption of the Constitution, with proceedings therein in accordance with the forms of the common law. Capital Traction Co. v. Hof, 24 W. L. R. 646 ; Bright- wood Ry. Co. V. O'Neal, 10 App. D. C. 205 ; 25 W. L. R. 98. The act of Congress conferring jurisdiction on justices of the peace in cases involving more than $20, is constitutional. Booth v. Kengla, 10 App. D. C. 558 ; 24 W. L. R. 715. The jury provided for by the act of March 1, 1823, extending the jurisdiction of justices of the peace, is not a common law jury, and the prohibition of the Seventh Amendment to the Constitution of a re-ex- amination of facts found by them otherwise than according to the rules of the common law, does not apply Capital Traction Co. v. Hof, 24 W. L. R. 646. In an action before a justice of the peace where the amount exceeds twenty dollars, a defendant has, under the Constitution of the United States, an absolute right to a trial by jury if he demands such trial, and a justice of the peace has no right to require of a defendant a deposit for the costs of the jury as a condition to his enjoyment of his right to a trial by jury. Hill v. Neale, 27 W. L. R. 235. The trial by a jury of twelve permitted by Congress to be had before a justice of the peace is not, and the trial by jury in the appellate court is, a trial by jury within the meaning of the common law and of the Seventh Amendment of the Constitution; and therefore the trial of facts by a jury before the justice does not prevent the re-examination of those facts before a jury in the appellate court. Capital Traction Co. v. Hof, 174 U. S. 1; 27 W. L. R. 262. While a fine imposed for violation of a municipal ordinance is a penalty for a criminal offense, it is not of such an offense as to which the Con- stitution extends the privilege of trial by jury. Bowles v. Dis. of Col., 22 App. D. C. 321 ; 31 W. L. R. 539. Common law rule 46 of the Supreme Court D. C, relative to reference to auditor, is not in violation of the constitutional provision for a trial by jury. Simmons v. Morrison, 13 App. D. C. 161 ; 26 W. L. R. 434. The seventy-third rule of the Supreme Court D. C. is not in deroga- tion of the constitutional right to trial by jury. Cropley v. Vogeler, 2 App. D. C. 28 ; 22 W. L. R. 43 ; Foertsch v. Germuiller, 2 App. D. C. 340 ; 22 W. L. R. 126 ; Simmons v. Morrison, 13 App. D. C. 161 ; 26 W. L. R- Constitutional Law. 197 434; Fidelity, Etc. Co. v. United States, 187 U. S. 315; 20 W. L. R. 827; Smoot V. Riitenhouse, 27 W. L. R. 741. As to validity of waiver of trial by jury by one accused of crime. See Belt V. United States, 4 App. D. C. 25; 22 W. L. R. 447. As to validity of trial proceeded with in the absence of accused who escapes after the trial is begun. See Folk v. United States, 15 App. D. C. 446; 27 W. L. R. 815. XVI. Unreasonable Searches and Seizures. In any body authorized to institute a judicial inquiry, no private affairs pertinent to the subject of inquiry are too sacred to be the subject of in- quiry, unless protected upon some ground of privilege. Chapman v. United States, 8 App. D. C. 302; 24 W. L. R. 251. Where an inquiry directed to be made by the Senate was a proper one, and one within the constitutional right and authority of that body, and the questions propounded to the witness were pertinent, held, that there was no unreasonable search into the private affairs of the witness such as is prohibited by the Fourth Amendment to the Constitution. lb. XVII. In General. The act of July 8, 1898, in so far as it attempts to create the offense of "suspicious person" is unconstitutional as authorizing punishment for suspected intent to commit some indefinite and unspecified offense. In re Fraser, 28 W. L. R. 39. As to constitutionality of § 6 of act of Aug. 2, 1886, known as the Oleomargarine Act. See Prather v. United States, 9 App. D. C. 82; 24 W. L. R. 395. As to determination of constitutionality of act of Congress fixing rates for telephone service. See Manning v. Telephone Co., 26 W. L. R. 499. As to validity of act of March 3, 1899, for the extension of S street. See Davidson v. Wight, 16 App. D. C. 371 ; 28 W. L. R. 302. Validity of acts of Congress of July 22, 1892, and Aug. 24, 1894, author- izing Commissioners to open and extend alleys and minor streets. Bran- denburg V. Dis. of Col, 26 App. D. C. 140 ; 33 W. L. R. 740. The act of March 2, 1893, to provide for a permanent system of high- ways in that part of the District lying outside of cities, is constitutional and valid. Bauman v. Ross, 167 U. S. 548 ; 25 W. L. R. 358. Constitutionality of act of June 28, 1902, authorizing payment of $50,- 000,000 in connection with construction of Panama Canal. Wilson v. Shaw, 25 App. D. C. 510; 33 W. L. R. 328. As to constitutionality of act of Feb. 19, 1895, enlarging jurisdiction of justices of the peace. See Carver v. O'Neal, 11 App. D. C. 353 ; 25 W. L. R. 704. Under clause 2 of the Seventh Amendment no appeal can be had from the judgment of a justice of the peace, in a case tried by jury before him under the provisions of the act of March 1, 1823. Brightwood Ry. Co. V. O'Neal 10 App. D. C. 205 ; 25 W. L. R. 98. As to constitutionality of legislation of Congress respecting justices of the peace. See Capital Traction Co. v. Hof, 174 U. S. 1; 27 W. L. R. 262. 198 Construction — Consular 0^^ich;rs. Requiring accused to give evidence against himself or furnish evidence to be used. See Shaffer v. United States, 24 App. D. C. 417; 33 W. L. R. 4. While past acts of Congress may afford a practical construction of a provision of the Constitution, to have this great weight the practical con- struction must have been long continued, repeated and generally unques- tioned. Miles Co. V. Carlisle, 5 App. D. C. 138 ; 23 W. L. R. 33. See Patents. CONSTRUCTION. Of Assignments for Benefit of Creditors. See Title. Of Claims. See Patents. Of Bonds of Government Contractors. See Bonds. Of Contracts. See Contracts. Of Legal Documents. See Documents. Of Rules of Court. See Rules of Court; Seventy-thied Rule. Of Specifications and Patents. See Patents. Of Statutes. See Army and Navy; Consular Officers; Courts; In- toxicating Liquors; Patents; Police Regulations; Statutes. Of Wills. See Wills. CONSTRUCTIVE NOTICE. See Notice. CONSTRUCTIVE POSSESSION. As to sufficiency, in ejectment, of a continuing constructive possession as against an intruder who makes no pretense of color of title. See Ches. Beach Ry. v. Wash., P. &■ C. R. R. Co., 23 App. D. C. 587; 33 W. L. R. 309. CONSTRUCTIVE TRUSTS. See Trusts and Trustees. CONSULAR OFFICERS. In an action by the United States against the sureties on the bond of a vice-consul-general, that officer held estopped to claim one-half the salary of the consul-general for a certain period where he failed to notify the officers of the United States of his claim, as required by the consular regulations, in time to prevent the regular allowance of the entire compensation to his principal on settlement of the latter's account. United States v. Day, 27 App. D. C. 458 ; 34 W. L. R. 355. Where leave of absence was granted the consul-general for sixty days, and the vice-consul-general waived his right to one-half the salary of the consul-general during that time, to which he would otherwise have been entitled, vice-consul is not entitled to credit for any part of the salary during said period of sixty days. lb. The construction given by the State Department to the words "absent from his post," in § 1742, R. S., as meaning not absence from the consular office, but from the district in which it is situated, followed; and those words held not to mean mere temporary absence from the consular of- fice when at the same time the officer is within his district, but either a wilful or inexcusable abstention from the performance of his ordinary duties, or such continuous illness, beyond the period of a regular leave of absence, as may wholly disable him from such performance. lb. In an accounting between a vice-consul-general and the sureties on Contagious Diseases — Contempt of Court. 199 his bond, and the United States, the former are entitled to credit for any payments made by the vice-consul-general to the consul-general on ac- count of salary due the latter, whether receipted for in his name by his wife or not, but not for payments made to the widow of the consul-gen- eral unless it be shown that she was the legal representative of her de- ceased husband and as such entitled to the possession of the money. lb. A contention by the United States that the salary of the consul-general for each quarter must be deducted from the receipts of such quarter, and from no subsequent quarter, denied. lb. The return of a commission to take depositions, under the seal of a United States consulate, is improper when the consul is himself a party to the suit and the person whose deposition has been -taken. Massa- chusetts Mut. Ace. Assn. v. Dudley, 15 App. D. C. 473; 28 W. L. R. 34. A deputy consul may not take the deposition of his consul in a case in which the consul is a party. lb. Neither by the law of this country nor by the law of England is a vice-consul charged with any function in regard to the execution of wills. Keely v. Moore, 22 App. D. C. 9 ; 31 W. L. R. 339. CONTAGIOUS DISEASES. As to who are within the provisions of the act of Dec. 20, 1890, relative to the reporting of cases of scarlet fever and diphtheria. See Johnson v. Dis. of Col, 27 App. D. C. 259 ; 34 W. L. R. 342. CONTEMPT OF COURT. United States courts have no power to punish a party for contempt for disobeying an order made without jurisdiction. Drezv v. Hogan, 25 App. D. C. 55; 33 W. L. R. 488. The Supreme Court of the District of Columbia is a court of the United States, and § 725, R. S. U. S., applies to contempts of court com- mitted therein, if of the class of contempts designated in said section; and the punishment for such contempts can only be such as is prescribed by said section. Moss v. United States, 23 App. D. C. 475 ; 32 W. L. R. 343. The punishment for a contempt authorized by § 725 Rev. Stat., is either fine or imprisonment, in the discretion of the court, but not both. lb. A sentence that imposes both fine and imprisonment can not be exe- cuted as to both; and where in such case the fine has been paid, the sentence is executed as far as it can be legally executed ; and as to the imprisonment imposed the sentence is void and the party entitled to be discharged. lb. The Supreme Court of the District, holding a special equity term, has jurisdiction to commit for contempt one disobeying an order for the payment of alimony. Tohnan v. Leonard, 6 App. D. C. 224; 23 W. L. R. 843. The Supreme Court of the District of Columbia has power to compel obedience to an order awarding alimony by committing the party to jail if he refuses to obey it. Lane v. Lane, 27 App. D. C. 171 ; 34 W. L. R. 324. As to power of justice of the peace to punish for contempt. See In re Carson, 26 W. L. R. 153. 200 Contempt of Congress — Continuance. The refusal of an attorney to disclose the name of a client for whom he had testified he had prepared the memoranda for a will held justified and not to constitute contempt of court. Elliott v. United States, 23 App. ■D. C. 456; 32 W. L. R. 293. The act of a witness in refusing to answer a question propounded to him, if it be his right to decline to answer, will not become a criminal contempt by being adjudged so. lb. An attempt by corrupt solicitation to influence the conduct of a juror in a cause pending in court, made by the party charged therewith at his place of business, is a contempt committed in the presence of the court, within the meaning of § 725 Rev. Stat., and punishable as such. McCaully V. United States, 25 App. D. C. 404; 33 W. L. R. 306. Appellant was charged with a contempt of court because of an unlaw- ful attempt to corrupt a juror therein. It appeared that two days before the trial of the cause in which the juror was sworn, which grew out of an embezzlement of railroad tickets, he had twice gone to the residence of the juror and expressed to members of the latter's family a desire to see him; that the juror went to appellant's place of business, and appellant then stated to him that there was a man in trouble ; that a railroad com- pany was trying to down him; that the juror then stated that he was on the jury and could not talk, and left the place. The only evidence on be- half of appellant was as to his good character. Held, that the evidence was sufficient to establish the charge against appellant, and that the court had jurisdiction, under § 725 Rev. Stat., to punish him for a contempt committed in the presence of the court. lb. A restraining order issued without the requirement of the filing of an undertaking being complied with is inoperative and void ; and an order ad- judging the defendants in contempt because of their alleged violation of such order and imposing punishment therefor is likewise void. Drew v. Hogan, 25 App. D. C. 55 ; 33 W. L. R. 488. An order of commitment for contempt of court should be specific and certain in its terms, and not for a period so indefinite as the pleasure of the court. Such an order will not, however, be held void for want of mere technical accuracy in its recitals where the defects therein are sup- plied by the record. Tolman v. Leonard, 6 App. D. C. 224; 23 W. L- R. 343. As to sufficiency of warrant of commitment for contempt of the court of a justice of the peace. See In re Carson, 26 W. L. R. 152. The answer of a defendant to a rule to show cause why he should not be attached for contempt is not conclusive and the court may look beyond it if justice demands. Tolman v. Leonard, 6 App. D. C. 224; 23 W. L. R. 343. CONTEMPT OF CONGRESS. See Congress. CONTINGENT LIMITATIONS. As to power of court of equity to order sale of real property on ap- plication of life tenant. See Am. Sec. & Trust Co. v. Muse, 4 App. D. C. 12 ; 22 W. L. R. 409. CONTINUANCE. Continuance of a cause is within the discretion of the trial court and Contracts. 201 its exercise is not reviewable. Bradshaw v. Stott, 7 App. D. C. 276; 23 W. L. R. 830. The granting or refusal of a continuance is not reviewable save where a clear abuse of judicial discretion is made to appear. Foertsch v. Ger- muiller, 9 App. D. C. 351; 34 W. L. R. 794. A party moving for a continuance because of the illness of a witness must support the motion by affidavit setting out substantially the facts to which the witness would testify. To aver that the testimony is ma- terial, proper and competent is not sufficient. Bradshaw v. Stott, 7 App. D. C. 276; 33 W. L. R. 830. A continuance is properly refused when asked for on the ground of absence of witness where applicants, with notice Of the time set for the trial and the fact that the witness had for years been ill and unable to leave the house, made no effont until a day or two before the trial to ascertain what she would testify to, and refused an offer of the other side to consent to the taking of her deposition. Riddle v. Gibson, 35 W. L. R. 143. A general appearance by defendant for the purpose of procuring a continuance is a waiver of the requirement of non-residents as to security for costs. Costello v. Palmer, 20 App. D. C. 210 ; 30 W. L. R. 403. As to what constitutes an amendment of a declaration entitling de- fendant to a continuance of the action. See Crandall v. Lynch, 30 App, D. C. 73 ; 30 W. L. R. 336. Comment of counsel for Government in argument to jury in criminal case as cause for withdrawal of juror and continuance of case. See Price V. United States, 14 App. D. C. 391 ; 37 W. L. R. 330. An alias writ of summons will not be vacated merely upon the ground that there had been no continuance in the cause. Parsons v. Hill, 15 App. D. C. 533; 38 W. L. R. 19. See also Triai,. CONTRACTS. I. Nature and Essentials. II. Consideration. III. Assent. IV. Offer and Acceptance. V. Parties. VI. Performance. VII. Breach. VIII. Validity as Regards Public Policy. IX. Validity Under Statute of Frauds X. Validity in General. XL Construction. XII. Law Governing. XIII. Modification. XIV. Warranty. XV. Avoidance. XVI. Termination. XVII. Rescission. XVIII. Pleading. XIX. Evidence. XX. Building Contracts. XXI. Government Contracts. XXII. Compromise Agreements. 202 Contracts. XXIII. Sealed Instruments. XXIV. In General. I. Natui'e and Essentials. A contract not reduced to writing in its entirety is regarded as a parol contract and may be proved entirely by parol although there may be documentary evidence of parts of it and parts of it may have been re- duced to writing. Bvans v. Schoonmaker, 3 App. D. C. 62 ; 22 W. L. R. 78. An agreement which is only in part in writing is an oral agreement and may be proved by oral testimony. Bailey v. Dis. of Col., 9 App. D. C. 360 ; 24 W. h. R. 745. The omission of the seal of the District from a contract executed under the hands and seals of the Commissioners acting for the corporation will not affect its character as a specialty. Dis. of Col. v. Camden Iron Works, 181 U. S. 453. A contract executed by the Commissioners of the District of Columbia, under their hands and seals, intended as and manifestly an official act, has the force and effect of a deed or sealed instrument, according to its import, and binds the corporation and not the individual Commissioners; and an action of covenant may be maintained against the District thereon, notwithstanding the corporate seal of the District is not affixed thereto. Dis. of Col. V. Camden Iron Works, 15 App. D. C. 198. The use of its seal by a corporation in indorsing an otherwise negotia- ble note does not convert it into a specialty. Clark v. Reed, 12 App. D. C. 343; 26 W. L. R. 183. A mere statement on the minutes of the Commissioners of the District of the appointment of a referee, without signature by the Commissioners is not a contract by them under the act of June 11, 1878, ch. 180, § 5. Dis. of Col. V. Bailey, 171 U. S. 161. An agreement to arbitrate, not under rule of court or within the terms of a statute enacted for such purpose, is a contract. lb. Correspondence between the Washington Market Company and of- ficers of the District government relative to the control of the open space described in § 16 of the act of May 20, 1870, held, not to constitute a contract under which the Market Company had an exclusive right to con- trol such space. Market Co. v. Dis. of Col, 6 App. D. C. 34 ; 23 W. L. R. 213. C, an attorney, agreed with B. and others to conduct- certain litigation on a contingent fee. A memorandum of the agreement was drawn by one of the parties which was executed by C. alone. On the termination of the litigation, which was successful, C. sued the party named in the memorandum to recover the amount alleged to be due him as compensa- tion under the contract. Held, that as there was no completely executed contract in writing, binding as such upon all the parties to the transaction, the contract rested in parol, and to show what it was, statements of the parties, written or oral, made at the time to induce others to enter into it, were proper to be considered by the jury. Burke v. Cloughton, 6 App. D. C. 350; 23 W. L. R. 393. Where, pursuant to an advertisement by the Postmaster General, a Contracts. 203 Contract is awarded to a bidder, who subsequently signs a formal contract prepared by that officer and sent him for execution, and where in addi- tion a letter is addressed by the department to the bidder expressly recog- nizing the contract as existing and giving directions as to the doing of the work, the contract is complete and binding upon both parties and it is immaterial that the Postmaster General did not sign it. Purcell En- velope Co V. Smith, 26 W. L. R. 515. Where one of two parties sought to be held as joint promissors stated that plaintiff ought to be paid for his services and used material pre- pared by plaintiff upon a promise made by the other party that he would pay for the work, held insufficient to raise a promise on the part of the former to pay for the services. Boogher v. Roach, 25 App. D. C. 324 ; 33 W. L. R. 326. An insane person may have lucid intervals, and his contracts then made are valid and binding. CritchAdd v. Basterday, 26 App. D. C. 89 ; 33 W. L. R. 504. Whilst under certain concurring conditions a verbal agreement to make conveyance of property by will may be enforced in equity, an essential condition is that the agreement must be complete, definite in its terms, and proved with clearness and certainty. Coveney v. Conlin, 20 App. D. C. 303 ; 30 W. L. R. 467. As to what constitutes contract between a mutual benefit association and its members. See Drum v. Benton, 13 App. D. C. 245; 26 W. L. R. 398. A contract held to be one of life insurance and not of loan. See United Security Ins. Co. v. Bond, 16 App. D. C. 579 ; 28 W. L. R. 456. As to maritime character of contracts relating to wharves. See Upper Steamboat Co. v. Blake, 2 App. D. C. 51; 22 W. L. R. 26. II. Consideration. Where a written contract of purchase and sale is silent as to the pur- chase price, documentary and parol evidence is admissible to show the price to be paid. Landvoight v. Paul, 37 App. D. C. 433; 34 W. L. R. 398. Where there is a dispute between vendor and vendee as to the amount to be paid, the party claiming to be entitled to the specific performance of the contract may file a bill therefor and submit the question of the amount to be paid to the judgment of the court. Johnson v. Tribhy, 27 App. D. C. 281; 34 W. L. R. 318. Where a husband procures a loan to be made to his wife, his subse- quent promise to pay the indebtedness is not nudum pactum. Ambler v. Ames, 1 App. D. C. 191; 21 W. L. R. 643. In a suit against indorser of note for deficit after sale of real estate on which note was secured, it is error for trial court to direct verdict for plaintiff where it appears that immediately after the sale one of the holders of the note, who were trustees under the deed of trust and pur- chasers at sale, made an agreement with the indorser to surrender the note to him if he would procure a purchaser of the property for a sum suf- ficient to pay principal, interest and costs, and the indorser did procure 204 Contracts. such a purchaser and the sale to him was consummated. Ubhoff v. Brandenburg, 26 App. D. C. 3 ; 33 W. L. R. 473. As to when broker entitled to commission under contract for sale of land. See Block v. Ryan, 4 App. D. C. 283 ; 22 W. L. R. 689. III. Assent. When the purchaser of property undertakes to make investigations of his own respecting the property before concluding the contract of purchase, and the vendor does nothing to prevent his investigation from being as full as he thinks proper to make it, the purchaser can not afterwards allege that the vendor made representations respecting the subject in- vestigated which were false. Shappirio v. Goldberg, 20 App. D. C. 185; 30 W. L. R. 450. That a contract is made subject to investigation does not relieve the other party from the consequences of his fraudulent representations. It is only where the means of knowledge are at hand and equally available that a purchaser cannot be heard to say that he was deceived by his ven- dor's misrepresentations. Clark v. Harmer, 9 App. D. C. 1 ; 24 W. L. R. 345. The mere fact that a contract presented for signature to one who is able to read and understand it fully, and who is not prevented from read- ing it by some artifice of the other party, is represented to amount to nothing more than a receipt, is not sufficient to avoid it on the ground of fraud. Toledo Scale Co. v. Garrison, 28 App. D. C. 243; 34 W. L. R. 773. Where a party to a contract has full opportunity to read it before ex- ecution, he cannot set up error, mistake, misrepresentation or fraud in its reduction to writing or in its execution, as a defense to an action at law on the contract. Whiting v. Davidge, 23 App. D. C. 156; 32 W. L. R. 114. No implied contract on the part of the United States can arise out of a foreign telephone company's entry into the District and commencement of business without obstruction or apparent objection. Manning v. Tele- phone Co., 18 App. D. C. 191 ; 29 W. L. R. 238. In order for the acceptance of work contracted for by one of the parties to relieve the other party from liability for delay in the perform- ance of his part of the contract, such acceptance must be unconditional and with full knowledge of the default. Dis. of Col. v. Harlan & Hoi- lingsworth Co., 36 W. L. R. 82. A receipt given the contractor by the chief engineer of the District fire department, not authorized or confirmed by the Commissioners, held not binding on the District, especially where the subsequent conduct of the parties showed that such receipt was not intended as a release of the contractor nor an acceptance of the boat by the District. lb. An agreement between the holder and maker of a promissory note, consented to by the indorser thereof, for extension of time for payment for a definite period, in consideration of the payment of interest for the extended time, is valid and binding upon all the parties thereto. Reed V. Tierney, 12 App. D. C. 165; 26 W. L. R. 133. Contracts. 205 In a suit for specific performance of a contract for the sale of real estate, made by one of several joint owners, the burden of proof is on complainant to show clearly and satisfactorily and beyond a reasonable doubt that such owner had authority from his co-owners to enter into the contract, or that they subsequently ratified it. lb. Declarations by one of two owners of real estate that his co-owner had left to his judgment the acceptance of an offer to purchase, are not sufficient to prove authority to sell so as to bind the co-owner in a suit for specific performance of contract to sell. Lipscomb v. Watrous, 3 App. D. C. 1; 22 W. L. R. 189. That "agent" is written after the name of a party to a contract will not prevent a recovery against him when there is no plea or evidence of agency, and it is shown that in a subsequent modification of the contract the word "agent" is not appended to his signature; nor will a recovery by a sole plaintiff be defeated by the fact that in the contract the words "& Co." are written after his name, where it is shown that this was by mistake. Magruder v. Belt, 12 App. D. C. 151 ; 26 W. L. R. 58. A contract for the purchase by two persons of an option on certain lands situated in Maryland, which contain no express provision that they shall hold as joint tenants, makes them, under Art. 50, § 13, Code of Maryland, tenants in common; and the vendor will be presumed to have contracted with them as such, and with each one for an undivided part of the property. Clark v. Harmer, 9 App. D. C. 1; 24 W. L. R. 345. IV. Offer and Acceptance. A party making an offer is not bound by a qualified or conditional ac- ceptance. An acceptance, however, is not made conditional by a wholly immaterial addition or qualification, nor by a misunderstanding as to the construction of any mere collateral terms not part of the agreement it- self. Carver v. Hall, 3 App. D. C. 170 ; 22 W. L. R. 290. A party accepting an offer must not even slightly vary the proposed terms without calling the attention of the other party to the variation; and must be plain and explicit in doing so. lb. To make the acceptance of an offer form a contract, the party making the offer must have notice thereof in proper manner before its withdrawal. Mannix v. Hildreth, 2 App. D. C. 259 ; 22 W. L. R. 93. Where in a contract to purchase and sell the stipulations are dependent, tender and refusal of the purchase money must be proved before the pur- chaser can claim damages for breach of the contract, but such a tender is unnecessary where the seller refuses to accept performance of the con- tract. Landvoight v. Paul, 27 App. D. C. 423 ; 34 W. L. R. 398. V. Parties. When one person gives to another an order to deliver goods to the third, and such order stands alone and without explanatory circumstances of any kind, the contract in the case is between the first and the second parties, and the third party is merely a messenger or agent of the first to receive the goods. Somerville v. Williams, 12 App. D. C. 520; 26 W. L. R. 280. A contract for the sale of real estate, made by one of several joint owners, will not bind his co-owners unless they previously authorize him 2o6 Contracts. to enter into it or subsequently ratify and confirm it. Waters v. Ritchie, 3 App. D. C. 379; 23 W. L. R. 361. A religious establishment, association or society under the express control of a church or sect, incorporated by Congress, may contract with the duly authorized agents of the Government to receive compensation for actual services to be rendered. Roberts v. Bradfield, 12 App. D. C. 453 ; 26 W. Iv. R. 242. In an action against husband and wife for work and materials fur- nished in the erection of a house on a lot belonging to both, there was no evidence that the wife had any connection with the contract. Plain- tiff's contract was with one P., who had a contract with the husband for the erection of the house; but plaintiff sought to show that the latter contract was a mere form, that P. was not an independent contractor, but superintendent for the husband, who was doing the work himself. Held, upon a review of the evidence, that the plaintiff had failed to es- tablish his contention, and that the trial court erred in not directing a verdict in favor of both defendants. Rheam v. Martin, 26 App. D. C. 181 ; 33 W. L. R. 807. Right of third party to sue on a covenant in a contract of purchase of one corporation by another that the vendee should assume and discharge all obligations and liabilities whatsoever of the vendor. Capital Traction Co. V. Offiitt, 17 App. D. C. 292; 29 W. L. R. 18. Under § 1151 of Code, husband and wife may contract with each other. Branson v. Brady, 28 App. D. C. 250; 34 W. L. R. 704. Whether a contract made by a party after he has been judicially de- clared a lunatic is void, or only voidable, queers. Consaul v. Cummings, 24 App. D. C. 36; 32 W. L. R. 470. Liability of both partners executing a contract of sale of the partnership business on the breach of such contract by one of them. Love v. Stidham, 18 App. D. C. 306; 29 W. L. R. 439. Where a contract is made with several persons whose legal interest is joint, they must all, if living, join in an action on the contract; otherwise judgment will be arrested. Magruder v. Belt, 7 App. D. C. 303; 23 W. L. R. 827. The power of officers and agents of a public corporation to make con- tracts is to be strictly construed, and where directions are given with respect thereto they must be followed. Market Co. v. Dis. of Col., 6 App. D. C. 34 ; 23 W. L. R. 213. VI. Performance. Equity will not decree specific performance where the remedy is not mutual, or one party only is bound by the contract. Lipscomb v. Watrous, 3 App. D. C. 1 ; 22 W. L. R. 189. Where an agreement for the sale of real estate provides that the terms of the contract, including the execution of a note secured by deed of trust for deferred purchase money shall be complied with by the pur- chaser within thirty days, failure to so comply will defeat the right to specific performance. lb. Specific performance will not be decreed unless the agreement sought to be' enforced and all its terms are clearly proved; nor when it is ques- Contracts. 207 tionable whether the one against whom relief is asked made the agree- ment or caused it to be made. lb. Where title to real estate is in trustees to make sale, equity will hesi- tate to decree specific performance of a private contract to sell. Waters V. Ritchie, 3 App. D. C. 379 ; 22 W. L. R. 361. A contract for the sale of lands, in order to be specifically enforced, must have all the elements of a valid contract under the Statute of Frauds, and must be complete in itself, certain in its terms and sufficient to identify the property with reasonable accuracy, lb. Where a contract is vague and insufficient in its terms it will not form the basis of a decree for specific performance. lb. Specific performance of a contract to sell real estate will not be decreed where the alleged contract was made by an agent authorized to sell only and was repudiated by the owner ; nor where the terms of the contract have not been complied with by the party seeking its enforcement; nor where there is an entire want of mutuality in the alleged agreement. Jen- kins V. Locke, 3 App. D. C. 485 ; 22 W. L. R. 385. Specific performance will not be decreed where circumstances are de- veloped which would render it unjust or tend to encourage deception. Mannix v. Hildreth, 2 App. D. C. 259 ; 22 W. L. R. 93. Specific performance of an option to a lessee to purchase will be denied where trustees making the lease have no general or absolute power of sale. Winslow v. Balto. & O. R. R. Co., 188 U. S. 646. A bill in equity to enforce specific performance of an alleged verbal contract to give 1,000 shares of stock in a corporation proposed to be formed to exploit a patent in consideration of a payment by complain- ant to defendant of $45 in cash and the assumption by him of an indebt- edness of $50 on a certain lot in Wisconsin (which was also conveyed to complainant), was properly dismissed on the ground that the evidence did not establish such a complete and certain contract as would justify a decree of performance, there being no showing as to what was to be the amount of the capital stock or the number and value of the shares into which it was to be divided. Riordan v. Stout, 17 App. D. C. 397 ; 29 W. L. R. 141. The jurisdiction of equity in decreeing specific performance is not com- pulsory, but the subject of discretion; and it will not be decreed when to do so will work hardship or injustice to either of the parties, unless that result can be obviated by conditions that may be properly imposed. Knott V. Giles, 27 App. D. C. 581 ; 34 W. L. R. 414. K., owner of certain real estate, contracted to sell the same to com- plainant for $600 an acre. About twenty days after the making of the contract proceedings were brought under § 115f, of the Code, in which K. was adjudged an habitual drunkard and a committee appointed for his estate. Complainant's demand on the committee for a conveyance was refused unless he would pay a large price for the property, which he refused to do. The committee then reported to the court an offer of $825 per acre for the property, and its acceptance was authorized. Com- plainant filed a bill for specific performance. Held, that the case was one of hardship, in which specific performance should not be decreed, and the 2o8 Contracts. bill should be dismissed without prejudice to complainant's right to pur- sue his remedy at law. lb. Where an agreement provides for the organization of a corporation to handle patents obtained by one of the parties, and the assignment of such patents to the corporation, and the agreement has been performed in part, a court of equity will decree specific performance thereof, even though while still executory it was too vague and uncertain to be then enforced, and was in part for personal services. Sanche v. Blectrolibra- tion Co., 4 App. D. C. 453 ; 22 W. L. R. 769. Equity will not decree specific performance of a contract for the sale of trust property unless it appears that the property has been sold for its full value. Jones v. Holladay, 2 App. D. C. 279 ; 22 W. L. R. 169. Equity will decree specific performance of oral contracts concerning land which could be specifically performed if in writing where there have been certain acts of part performance materially changing the situation of complainant in respect of the subject matter of the contract. Whitney V. Hay, 15 App. D. C. 164; 27 W. L. R. 430. Specific performance will be decreed of an oral agreement to make title to real estate by will to complainant in consideration of his receiving the promisor and wife into his home for the rest of their lives and furnishing them board and treating them with affectionate care as if parents, where in reliance thereon complainant changes his mode of life, assumes the new relation and faithfully performs the required services for a term of years and until the repudiation by the promisor of his agreement with- out justification therefor. Ih. When, in such case, the promisor is living at the time of the decree, his title will be respected during life, but a trust ripening into title at his death declared in favor of complainant, and the promisor enjoined from making any other conveyance ; but where the promisor is dead at the institution of the suit, or dies pendente lite, the decree against his heirs at law or grantee will be for an immediate conveyance of the legal title. lb. An oral agreement, to be enforced, must be a complete contract and cer- tain in its essential terms, and clearly and distinctly proved substantially as alleged. lb. Where an agreement between A. and B., adjoining owners of land, that a portion of the lot of A. adjoining that of B., should be kept free from all structures obstructing light and air, is parol, the subsequent erection by B. of the wall of his house partly on the lot of A., in accordance with the regulations governing the erection of party walls in this District, is not such a part performance of the agreement as to authorize a court of equity to enforce it, especially as against a grantee from A. who is without notice of said agreement. Hutchins v. Munn, 22 App. D. C. 88 ; 31 W. L. R. 344. While equity will not enforce void contracts, where a contract is void only by reason of the incapacity of the parties to contract with each other, as in the case of husband and wife, and has been fully performed on the one side and in good faith, and it would operate as a fraud upon him if the other party were to refuse to perform, a court of equity will inter- vene. McCormick v. Hammersley, 1 App. D. C. 313 ; 21 W. L. R. 775. Contracts. 209 Where in a suit to enforce specific performance of a contract between husband and wife it is not clear that specific performance should be de- creed, a court of equity may allow complainant compensation for expendi- tures made under the contract. lb. Specific performance of a contract of sale will not be decreed at the in- stance of an intending vendee where the wife of the vendor refuses to re- linquish her right of dower in the land to be sold. Barbour v. Hickey, 2 App. D. C. 307; 23 W. L. R. 57. Under such conditions equity will not require the husband to suffer an abatement of so much of the purchase-money as would be the equivalent of the value of the contingent right of dower, and decree performance. lb. Specific performance of a contract of sale will not be decreed where there is an unjustified delay of two years in filing the bill therefor, dur- ing which time the value of the property was subject to change and fluctuation. lb. Where the terms of a contract of sale are for payment in cash and notes, a tender of a certified check for the entire amount is not suf- ficient to support a bill for specific performance. lb. While the failure of an agreement to execute a deed of trust, to de- scribe particularly the property to be conveyed, or to name trustees, might render its specific performance by the requirement of the execution of a deed of trust, difficult, the equitable lien created thereby will be enforced. Woarms v. Hammond, 5 App. D. C. 338 ; 23 W. L. R. 131. Adequacy of remedy at law barring right to maintain bill in equity for specific performance. Hazelton v. Miller, 35 App. D. C. 337; 33 W. L. R. 217. Where a parol agreement was entered into between a father and daugh- ter that if the latter would undertake the care of her mother (the wife of the former) for the remainder of her Hfe, the father would purchase certain real estate, taking title in his own name but would enjoy only a life estate therein, and would convey the fee, by will or otherwise, to the daughter, and pursuant to such agreement the property was purchased, the daughter placed in exclusive possession thereof, paying rent to the father, and the daughter fully performed the obligation on her part to care for her mother, such acts constitute sufficient part performance of the parol contract to take it out of the operation of the Statute of Frauds. Cherry v. Whalen, 25 App. D. C. 537 ; 33 W. L. R. 485. The principle of part performance as taking a case out of the operation of the Statute of Frauds, applies not only to agreements where the date of the promised conveyance is fixed and certain, but as well where it is unfixed and uncertain ; and a promise to transfer by will is equally enforce- able with one to transfer by deed. Whitney v. Hay, 15 App. D. C. 164; 27 W. L. R. 430. The acts of part performance relied on to justify a decree for specific performance, must have occurred after the agreement has been definitely concluded and with the knowledge and consent of the promisor, and must also have been of a nature to change the relations of the parties to each other to such an extent as to render a restoration of their former condition impracticable. lb. 210 Contracts. The proof of acts of part performance of a contract must refer to and be consistent with the contract, and should not be equally referable to some other and entirely different contract or of doubtful applicablity to the one alleged. They must unmistakably tend to show not only that there has been an agreement, but also one of the character relied on. But it is not necessary that such acts of part performance shall themselves be evidence of the very agreement relied on and no other. lb. Where a contract for delivery of articles has been partly performed and further performance is waived, an action of covenant will lie to recover the price of the articles delivered. Dis. of Col. v. Camden Iron Works, 181 U. S. 453. One party to a contract cannot, by rendering it impossible for the other to carry it out, set up the failure in bar of his right to recover compensa- tion for a partial performance, or for the value of time and effort expended in a bona Me effort to perform. Bryan v. Abert, 3 App. D. C. 180; 22 W. L. R. 297. Where a contract provides for a series of acts, and actual default is made in the performance of one of them, accompanied by a refusal to perform the rest, the other party need not perform, but may treat the refusal as a breach of the entire contract and recover accordingly. Land- voight V. Paul, 27 App. D. C. 423 ; 34 W. L. R. 398. If strict performance is prevented or waived by a party he cannot re- cover penalties for delay provided for in the contract. Dis. of Col. v. Camden Iron Works, 181 U. S. 453. Failure of a party to perform a written guarantee to sell land, within a reasonable time, although frequently requested to do so, renders him lia- ble thereon, though no time for performance be limited in the contract. Hartman v. Ruby, 16 App. D. C. 45; 28 W. L. R. 155. In an action to recover damages for breach of a guarantee on the part of one of the parties to a contract for the exchange of lands, to sell the land conveyed by him for a certain sum, held, that such guarantee being independent of any conditions imposed upon plaintiff by other portions of the contract proof of full performance of all things specified in the con- tract to be performed by him was not necessary to enable him to recover. lb. ■ Where a party by his own contract creates a duty or obligation of pos- sible fulfilment, he must make good his undertaking unless prevented by the act of God, the law, or the other party. Where he fails to pro- tect himself against contingencies he will not be heard to complain when such contingency happens and loss ensues. Macfarland v. Barber Co., 29 App. D. C. 506; 35 W. L. R. 414. Where there is a parol agreement between father and daughter whereby the former is to convey to the latter certain real estate, by will or other- wise, in consideration of her caring for her mother, and subsequently to the death of the mother, the father marries again and in violation of the agreement conveys the real estate in question to his second wife, equity v/ill declare the second wife a trustee and compel specific performance of the agreement. Cherry v. Whalen, 25 App. D. C. 537; 33 W. L- R- 485. Contracts. 211 As to what will relieve from performance of contract to purchase real estate. See McCaffrey v. Little, 30 App. D. C. 116; 30 W. L. R. 580. VII. Breach. Where a contract for work proves unsatisfactory and the parties mu- tually agree that bids therefor should be invited and the contract be awarded to the lowest bidder, and thereafter the party originally contract- ing to do the work, as well as several others, submits a bid, not the lowest, and all of the bids were rejected, such party cannot maintain an action for damages for breach of contract, the original contract having been abrogated by mutual consent. Hughes v. Brennan Construction Co., 24 App. D. C. 90; 32 W. L. R. 393. The right of action for breach of contract for the conveyance of real estate is for unliquidated damages sustained by reason of the breach and not for recovery of the purchase-price paid ; and such action is therefore not within the meaning of § 825, R. S. D. C, nor of the 73d rule. Deane V. Bchols, 2 App. D. C. 522; 22 W. L. R. 233. As to measure of damages for breach of contract of sale of real estate, including bar-room business conducted thereon, with license and good will. See Harten v. Loffler, 29 App. D. C. 490 ; 35 W. L. R. 386. Where an owner of land, in consideration of benefits to accrue in the use and disposition of the remainder, grants to a railroad company a right of way over and through it sixty feet wide and three feet deep, thereby dividing the land into two parts, and at the same time executes and de- livers to the company her promissory note for $500 ; and the railroad company, for the same consideration of prospective benefits to itself, covenants to construct and operate a railroad over the right of way so given and to run its cars thereon at certain hours of the day and night, the failure of the railroad company to operate the road or to run its cars thereon constitutes a breach of the contract for which the owner of the land is entitled to damages ; and the measure of damages in such case is the actual loss suffered by the owner of the land by reason of the aban- donment of the railroad and the cessation of its operation by the defendant, to be determined by the ascertainment of the value of the land to its owner with the railroad upon it and in operation and its value with the railroad abandoned and ceased to be operated. Eckington & S. H. Ry. Co. V. McDevitt, 18 App. D. C. 497; 29 W. L. R. 459; reversed as to measure of damage. See 191 U. S. 103. A party to an exchange of lands who, in fraud of an agreement to re- convey land mistakenly included in the deed to him, conveys the land to a third person, is liable in damages to the other party to the exchange who is thereby defrauded. Hartman v. Ruby, 16 App. D. C. 45 ; 28 W. L. R. 155. The breach of a contract of sale of a retail grocery business, which contains a covenant that the vendors "shall not engage in the retail busi- ness for the period of five years within one mile of the store building lo- cated as herein set forth," is sufficiently shown by evidence that one of the vendors sold or served to customers within the prescribed limits articles such as constitute a substantial part of the stock contained in such store, provided the business conducted comes within the definition 212 Contracts. of a retail grocery business; and that he may have had no residence, shop or place of business within such limits is immaterial. Love v. Stidham, 18 App. D. C. 306; 29 W. L. R. 439. A declaration by a promisor of an intention not to carry out the con- tract is not in itself, and unless acted on by the promisee, a breach of the contract; and it only becomes such when it is converted by force of what follows into a wrongful renunciation of the contract. Landvoight v. Paul, 27 App. D. C. 423; 34 W. L. R. 398. A court of equity will not enjoin the Postmaster General from vio- lating a contract made with a bidder, but will leave the party injured to pursue his remedy for the breach of the contract by a suit for damages against the United States in the Court of Claims. Purcell Envelope Co. V. Smith, 26 W. L. R. 515. As to measure of damages for breach of contract to operate railroad over right of way granted. See Bckington & S. H. Ry. Co. v. McDevitt, 191 U. S. 103 ; 31 W. L. R. 807. Right of buyer under contract for purchase and sale of article of food, on breach of implied warranty of quality. See Armour & Co. v. Gunder- sheimer, 23 App. D. C. 2i0 ; 32 W. L. R. 117. Inability of a vendor to convey dispenses with the necessity of a tender of the purchase-money by the vendee before bringing action for breach of contract. Newman v. Baker, 10 App. D. C. 187 ; 25 W. L. R. 170. Where the covenant of a vendor to convey within a specified time, and that of the vendee to pay the purchase-money, are dependent, the latter must show a tender of the purchase-money, or legal excuse for its ab- sence, before he can maintain an action for breach of the contract. lb. As to application of rule that anticipated profits prevented by the breach of a contract are recoverable as damages for such breach. See Gurley v. MacLennan, 17 App. D. C. 170; 28 W. L. R. 830. VIII. Validity as Regards Public Policy. Every part of the consideration goes equally to the whole promise, and if any part of it is contrary to public policy, the whole promise falls. Haselton v. Sheckells, 202 U. S. 71. A contract to deliver property, part of the consideration being that the party was to endeavor to secure legislation looking to its sale to the United States, held void as against public policy. lb. Services in procuring legislation by Congress looking to the reference and payment of claims are not the subject of lawful contract and there- fore one partner cannot recover of another for fees paid for such services. Consaul V. Cummings, 24 App. D. C. 36; 32 W. L. R. 470. A contract between an attorney and one having a claim against the United States, expressly giving the attorney a lien upon any check which might be issued by the Untied States in settlement of the claim, is not within the meaning of § 3477, Rev. Stat., prohibiting assignment of claims. Jones v. Rutherford, 26 App. D. C. 114; 33 W. L. R. 498.. Agreements for professional services in the procurement of Con- gressional legislation, which involve personal solicitation of members of Congress, are against public policy and will not be enforced by the courts, Contracts. 213 whether or not improper means are used in such solicitation. Owens v. Wilkinson, 20 App. D. C. 51; 30 W. L. R. 436. A contract between a retired naval surgeon and an attorney for the prosecution by the latter before Congress or any and all tribunals before which the same might rightfully come of a claim against the United States for longevity pay, whereby there was assigned to the attorney as a con- tingent fee for his services an interest in said claim equal to one-half the total amount received on the settlement thereof by the accounting of- ficers of the Treasury, is null and void under § 3477, Rev. Stat., whether said contract be oral or in writing. lb. No recovery can be had for legitimate services rendered under a con- tract null and void because it involved the procurement of legislation in the prosecution of a claim against the United States, where such con- tract is indivisible. lb. An agreement by an attorney to prosecute at his own expense a suit to recover land in which he personally has and claims no title or interest, present or contingent, in consideration of receiving a certain proportion of what he may recover, is contrary to public policy, unlawful and void. Peck V. Heurich, 167 U. S. 624 ; 25 W. L. R. 595. An agreement by a bank and a notary, whereby the latter agreed in consideration of his employment as such officer, to accept one-half of his lawful fees, the bank retaining the other half, is void as without considera- tion and as against public policy. Ohio Nat. Bank v. Hopkins, 8 App. D. C. 146; 24 W. L. R. 161. A contract granting to one the exclusive right to lease phonographs to the public at specified rates within a designated territory, the property in the instruments to remain in the owners, is not invahd as seeking to im- press upon a chattel or personal property a qualified ownership inconsistent with the freedom of transfer and the rights of possession ; and even if defective and insufficient would not be so held on the hearing of an ap- plication for a temporary injunction. Whitson v. Columbia Phonograph Co., 18 App. D. C. 565; 29 W. L. R. 804; 98 O. G. 418; C. D. 1902, p. 497. Not every contract between two or more individuals, whereby it is agreed that one is to bid on and become the purchaser of property for the joint benefit of himself and others, is void as against public policy. Starkweather v. Jenner, 27 App. D. C. 348 ; 34 W. L. R. 350. Where a party had deliberately made a contract and received the con- sideration therefor, it must plainly appear that it contravenes public pol- icy before the courts will declare it void on that ground. Godfrey v. Roessle, 5 App. D. C. 299 ; 23 W. L. R. 129. Special stipulations submitting the demands of a contractor to the ad- judication of supervising architects or engineers, though enforceable, are in derogation of common right and the ordinary freedom of action, and must clearly appear to be within the intention of the contract. In case of doubt, construction is in favor of one resisting enforcement. Fon- tano V. Rabbins, 18 App. D. C. 402; 29 W. L. R. 527. As to standing in court of equity of parties to contract which is in contravention of law. See Arnbler v. Archer, 1 App. D. C. 94 ; 21 W. L. R. 600. 214 Contracts. As to invalidity for champerty. See Johnson v. Van Wyck, 4 App. D. C. 294; 22 W. L. R. 713; Peck v. Heurich, 6 App. D. C. 273; 23 W. L. R. 289. See Combinations in Restraint of Trade. IX. Validity Under Statute of Frauds. A parol agreement by one to purchase land in his own name and with his own funds and to hold it for the benefit of another, is void under the Statute of Frauds, as an attempt to create an express trust in land by parol. Mcintosh v. Green, 25 App. D. C. 456 ; 33 W. L. R. 423. A verbal agreement between the grantor in a deed of trust and the holders of the notes secured thereby, whereby the latter were to buy in the property on sale under the deed of trust and hold it for the benefit of such grantor, conveying to him what might be left thereof after their indebtedness was satisfied, held obnoxious to the Statute of Frauds and not enforceable in equity. Leuis v. Kengla, 8 App. D. C. 230 ; 24 W. L. R. 246. As to whether an agreement signed by the party to be charged, but not by the other party, is valid and binding within the Statute of Frauds. See Hazleton v. Le Due, 10 App. D. C. 379 ; 25 W. L. R. 280. X. Validity in General. The validity of a contract that can only be fulfilled by a resort to tax- ation depends upon the power to levy the tax for that purpose. Miles Co. V. Carlisle, 5 App. D. C. 138; 23 W. L. R. 33. Fraudulent representations rendering a contract void or voidable will so affect a subsequent contract based on and modifying the terms thereof, where the fraud has not, in the meantime been discovered. Clark v. Banner, 9 App. D. C. 1 ; 24 W. L. R. 345. Misrepresentations by a vendor of real property with reference to its area are not actionable, where a correct description of the property was given in the deed and recorded chain of title, which the purchaser's agent undertook to investigate and report upon, and the vendor made no effort to prevent a full investigation. Shappirio v. Goldberg, 192 U. S. 232; 32 W. L. R. 132. A contract between the District Commissioners and an incorporated hospital under sectarian control, for the erection by the District on the hospital grounds of an isolating building for minor contagious diseases under the appropriation made by act of Congress of March 3, 1897, held valid. Roberts v. BradMd, 12 App. D. C. 453; 26 W. L. R. 242. Where a contract between a boat-building company and the District Commissioners for the construction of a fireboat provided for a for- feiture by the contractor of $25 a day as liquidated damages for each day of delay after the time specified for the completion of the contract. Held, that such provision of the contract was binding upon the parties and that the District was not hmited to the deduction of the amount of actual damages sustained. Dis. of Col. v. Harlan & Hollingsworth Cj., 36 W. L. R. 82. Parties may stipulate in advance that a certain sum shall be the dam- ages which one shall forfeit to the other for failure to perform the con- Contracts. 215 ditibns of a valid contract; and especially is this true when the damages to be sustained are uncertain in amount and can not readily be ascer- tained, lb. As to validity of contracts between husband and wife. See McCornikk V. Hammersley, 1 App. D. C. 313; 31 W. L. R. 775. XI. Construction. The construction of a written contract is the province of the court and not of the jury. Rheam z>. Martin, 26 App. D. C. 181; 33 W. L. R. 807. In cases where the language used by the parties to a contract is in- definite or ambiguous, and hence of doubtful construction, the practical interpretation given it by the parties themselves is entitled to great, if not controlling influence. Consaul v. Cummings, 24 App. D. C. 36; 32 W. L. R. 470. Where a contract for an exchange of lands contains a covenant by one of the parties, who had conveyed to the other three pieces- of incumbered city property in exchange for unincumbered farm property, whereby he guaranteed "to sell said properties hereby conveyed" for not less than $17,000, such covenant will, in an action for failure to perform, be con- strued to have reference to the equitable interests conveyed and as a guarantee that such equitable interests were worth not less than the sum named. Hartman v. Ruby, 16 App. D. C. 45; 28 W. L. R. 155. A contract between attorney and client providing, in the first clause, for payment of $1,000 for professional services in respect of the client's interest in a suit then pending to which he was not at the time a party; and, in the second clause, specifying the services to be rendered; and, by the third clause, providing for payment of one-half the amount upon execution of the agreement and the other half at the termination of said suit if the client became a party thereto, construed and held to provide for payment of $1,000 for the services to be rendered, the paj'ment of one- half of which was postponed to the termination of the suit in the contin- gency of the client becoming a party thereto. Whiting v. Davidge, 23 App. D. C. 156; 32 W. L. R. 114. While in contracts between counsel and client the utmost fairness is required, and where reasonable doubt exists it should be resolved against the contention of counsel; an allegation of wrongdoing on the part of one now deceased, which in all probability could neither be proved nor disproved under the law, must be received with disfavor. lb. Where a written contract between attorney and client provides for the payment of a fee equal to "from 10 to 15 per cent." of the market value of the recovery, the attorney is entitled to recover the maximum of 15 per cent. Heiberger v. Worthington, 23 App. D. C. 565 ; 32 W. L. R. 361. As to construction of contract between attorney and client. See Wil- loughby V. Mackall, 1 App. D. C. 411 ; 21 W. L. R. 748. A provision in a contract between a municipality and a contractor whereby the former reserved the right to retain money until all material- men were fully paid, creates no obligation in favor of materialmen, not parties to the contract, that they could enforce as against the municipality. Columbia Brick Co. v. Dis. of Col., 1 App. D. C. 351 ; 21 W. L. R. 739. 2i6 Contracts. A contract between the Commissioners of the District and an asphalt company, for paving, by its terms required the contractor to keep the pavements in repair for five years, ten per cent, of the contract price being retained as security for that purpose, and such contract further pro- vided that no allowance would be made for any unusual difficulties aris- ing either affecting the original construction or maintenance of finished work, and that if for any reason whatsoever the pavements should, dur- ing said period of five years, prove inferior to the best laid in this Dis- trict prior to a given date the contractor would, on demand, remove and relay the same. It appeared that, by reason of moisture and the escape of illuminating gas from mains located under the street, the pavements became greatly out of repair before expiration of the guarantee period, and on refusal of the contractor to repair the same the work was done by the District. Held, that the District was entitled to reimbursement out of such retent. Macfarland v. Barber Co., 29 App. D. C. 506; 35 W. L. R. 414. The E. Bicycle Co. agreed, in consideration of the sale to it by F. of all his right, title and interest in an automatic mechanism for which two applications for patents were pending, to pay him a certain royalty on each one manufactured, and to use due diligence in its manufacture and sale; and the company's attorney assumed charge of the prosecution of the applications. The manufacture of the device was begun and it was extensively advertised; but subsequently M., an officer of the company, secured a patent for a device effecting precisely the same purpose as that of F., whereupon the company ceased to make the latter's device and sub- stituted that of M. One of F's applications, after being allowed, was placed in interference with other applications, and was abandoned by the attorney of the company, and the other application was allowed, but lapsed because of the failure of the company to pay the office fee. Mean- while the company became owner of a patent to S. & H. claimed to dom- inate the devices of both F. and M., and under which it continued to manufacture the device of M. Held, that F. was entitled to royalty from the company for the devices manufactured under the M. patent, as well as for those professedly manufactured under its contract with F., and a reference to the auditor for the statement of such account should be had. Eclipse Bicycle Co. v. Farrow, 16 App. D. C. 468; 28 W. L. R- 551. By a contract between S. and the Republic of Mexico, it was agreed that the former should receive, for services to be rendered by him in establishing the fraudulent character of certain claims, the money for the settlement of which had been paid by Mexico to the United States, 10 per cent, of the sum recovered. Prior to this time a portion of the money had been paid by the United States to the claimants. When the fraudulent nature of the claims had been established, the United States paid over to Mexico the balance in its hands, and subsequently Congress appropriated for payment to that Republic of the amounts paid by the United States to the claimants. S., for considerations recited in the con- tract, assigned to L. a two-fifths interest in his contract or agreement in respect of one of the claims. The Mexican government paid S. 10 per cent, on the entire amount recovered. Held, construing the agreement be- Contracts. 217 tween S. and L., that the latter was entitled to two-fifths of the amount received by him on account of the claim to which his assignment related, including both the amount of the balance in its hands paid over by the United States to Mexico and the amount appropriated by Congress to repay that previously paid to the fraudulent claimants. Slaughter v. Loeb, 28 App. D. C. 57; 34 W. L. R. 480. An agreement between a sculptor and one contracting with him for pedestal work, that the latter should, as to such work, be made a party direct to the contract between the former and the commission awarding the contract for the statue, while not requiring the commission to recog- nize the subcontractor as a party to the contract, is distinct and severable from other terms of the contract and may be rejected without impairing such other terms. Manning v. Bllicott, 9 App. D. C. 71 ; 24 W. L. R. 439. Where property is described in a written contract of sale as "fronting on Brightwood avenue about 60 feet with a depth of about 200 feet" and these exact measurements would cut off a part of the dwelling house and lot, while all the other terms of the contract descriptive of the property to be sold would include the whole dwelling and lot, a latent ambiguity exists, to explain which parol evidence is admissible. Harten v. Lo-fRer, 29 App. D. C. 490; 35 W. L. R. 386. Where a street railway company was required by law to change its mo- tive power within a certain time or forfeit its franchise and the railway company enters into a contract with a car manufacturing company to supply it with a certain number of cars within a specified time, time is of the es- sence of the contract, and failure of the manufacturing company to sup- ply the cars within the time agreed renders it answerable in damages for breach of the contract. Wash. & G. R. R. Co. v. American Car Co., 5 App. D. C. 534 ; 23 W. L. R. 241. In such case, for the purpose of estimating damages, it is not per- missible for the railway company to show what its probable receipts and profits, in the way of fares, would have been if the cars had been de- livered in due time ; such damages being too speculative and uncertain. lb. The true measure of damages in such case is the reasonable rental value of such cars from the time they should have been delivered to the time of actual delivery, less the interest on the contract price during such time. lb. Where a contract for the sale of lands was by its terms to "be con- summated within two years from date,'' but no time was fixed for the payment of the purchase-money and conveyance of the property, Held, that time was of the essence. Newman v. Baker, 10 App. D. C. 187; 25 W. L. R. 170. Where a contract is fairly open to two constructions, by one of which it would be lawful and by the other unlawful, the former will prevail. Manning v. Bllicott, 9 App. D. C. 71 ; 24 W. L. R. 439. XII. Law Governing. Contracts are to be governed as to their nature, validity and interpre- tation, by the law of the place where made, unless the contracting parties 2i8 Contracts. clearly appear to have had some other law in view. Croissant v. Empire State Realty Co., 29 App, D. C. 638 ; 35 W. L. R. 350. The law of the State or county where a contract is to be enforced, not of that in which it was made, governs the question of the admissibility of evidence on a trial arising out of such contract. National Express & T. Co. V. Morris, 15 App. D. C. 262 ; 27 W. L. R. 690. A contract for the purchase and sale of an interest in lands in the State of Maryland, though made in this District, must be construed with reference to the laws of that State regarding real estate. Clark v. Har- mer, 9 App. D. C. 1; 24 W. L. R. 345. A loan made by a New York Building association to a resident of the District, it being arranged for and the bond and mortgage executed and delivered in the latter place, where the mortgaged real estate was also located, is a contract governed by the laws of the District, in the ab- sence of any provision in the contract that it was to be governed by the laws of another jurisdiction. Croissant v. Empire State Realty Co., 29 App. D. C. 638 ; 35 W. L. R. 350. XIII. Modification. The parties to a contract for the sale and delivery of goods may modify its terms or substitute another contract for it in whole or in part; and this modification or substitution may be by parol. Cement Co. v. Wheatley, 9 App. D. C. 334; 24 W. L. R. 743. Where a contract between the District and an iron company for the manufacture by the latter of certain pipe is not fully performed by either party, but a large quantity of the pipe is manufactured and delivered by the company and accepted and used by the District under the contract, and further performance is dispensed with by consent of both parties, though the contract is not rescinded, an action of covenant will lie on the contract at the suit of the company for the price of the pipe actually de- livered and accepted, if proper averments be made and proof furnished showing why full performance was not had. Dis. of Col. v. Camden Iron Works, 15 App. D. C. 198 ; 27 W. L. R. 462. If the party to a contract entitled to the benefit of a condition upon the performance of which his responsibility is to arise, dispenses with, or waives, or by any act of his own, prevents the performance, the opposite party is excused from proving a strict compliance with the condition on his part. lb. Where strict performance of a contract providing for penalties and for- feitures for delay is prevented by the act or course of conduct of the other party, or is suspended by his action or acquiescence, no claim can justly be made to such penalties and forfeitures. lb. A paper signed by one of the parties to a contract to the effect that a delay in performing the contract shall not affect the other party's rights, does not constitute a new contract, but a mere admission of the original contract. Landvoight v. Paul, 27 App. D. C. 423; 34 W. L. R. 398. XIV. Warranty. Plaintiff, in solicitmg an order from defendant company for certain furnaces, exhibited to it a printed circular containing certain express war- Contracts. 219 ranties and concluding : "Should our furnaces fail to do as guaranteed we agree to remove them and replace the former setting at our expense." Thereafter negotiations were had resulting in a written agreement for the purchase of the furnaces, which, however, did not incorporate said printed warranties. In an action to recover instalments due on said contract, the trial court admitted, subject to plaintiff's objection, evidence of the war- ranties contained in said circular and as to the negotiations prior to the purchase, but at the close of the evidence granted a motion by plaintiff to strike out all such evidence, and instructed the jury that it did not constitute a defense to the action. Held, upon a review of the evidence, that while the evidence as to the printed guarantees may have been ad- missible, the trial court properly excluded all such evidence as it fell short of establishing any defense to the action. Purity Ice Co. v. Hawley Furnace Co., 22 App. D. C. 573; 31 W. L. R. 742. Considering the warranty as an express part of the contract, the burden was upon the defendant to show that the furnaces were incapable, under proper management, of producing the substantial results that had been warranted; and not upon the plaintiff, as a precedent condition to re- covery, to show that the furnace would answer all the requirements of the warranty. lb. It was the legal duty of defendant to test the capacity of the furnace in a fair and reasonable manner and within a reasonable time ; and having thus demonstrated its failure, to notify the plaintiff to remove it and replace the former setting. lb. As to implied warranty of quality of food-stuff contracted to be furnish- ed. See Armour & Co. v. Gundersheimer, 23 App. D. C. 210 ; 32 W. L- R. 117. XV. Avoidance. One seeking to disaffirm a contract on the ground of infancy must return the consideration even though it has changed form. Utermehle v. McGreal, 1 App. D. C. 359; 21 W. L. R. 755. A return of the consideration received by an infant is not a condition of his disaffirmance of the contract, where the specific thing received can- not be returned. McGreal v. Taylor, 167 U. S. 688 ; 35 W. L. R. 558. A party is estopped to repudiate a contract when the other parties to it have been induced by his action and conduct to expend money in carry- ing it out. Sanche v. Electrolibrafion Co., 4 App. D. C. 453 ; 22 W. L. R. 769. To avoid a contract on the ground of false and fraudulent representa- tions, it must be shown that the representations gave occasion to the contract, which would otherwise not have been entered into. Security Invest. Co. V. Garrett, 3 App. D. C. 69 ; 22 W. L. R. 268. XVI. Termination. The refusal by a vendee, after commencement of his action to recover damages for breach of the contract of sale, to pay a note representing part of the purchase-money, will not put an end to the contract so as to preclude his recovery. Helphenstine v. Downey, 7 App. D. C. 343; 24 W. L. R. 7. 220 Contracts. An assignment by both tenants in common of their rights Under a con- tract for the purchase of an option on land, to a third party held not to operate to estop either one or both of them from thereafter withdrawing from the contract under the right reserved to them therein. Clark v. Harmer, 9 App. D. C. 1 ; 24 W. L. R. 345. Where, in such case, the contract reserves to the purchasers the right, on notice to the vendor and redelivering possession, to withdraw from the purchase, one of the tenants in common, before taking possession either in person or by his co-tenant, may, by giving the required notice to the vendor, withdraw from the contract, and thereby relieve himself from obligation thereunder. lb. Where the question is whether a contract has lapsed, and one of the parties or privies states that he considers the contract to be still in force, he is thereby estopped from claiming afterwards that the contract had expired. MacKie v. Howland, 3 App. D. C. 461; 22 W. L. R. 425. Where W., having a contract with persons claiming to be heirs to pro- cure their interests in real estate, he paying all expenses and to receive ten per cent, of the amount recovered, contracted with B., with the assent of a trustee for the heirs, to assign him a half-interest in the agreement, and W. failed to perform his contract, held that B. was not entitled to claim reimbursement out of the trust fund for the amount paid by him for the half-interest, or to claim anything under the contract of the heirs with W., the latter having abandoned the contract. Boogher v. Weaver, 12 App. D. C. 477; 26 W. L. R. 297. As to termination of contract for telephone service. See Manning v. Telephone Co., 26 W. L. R. 499. Contracts of a corporation relating to loans, supplies, royalties and ser- vices, are incidents of corporate existence and franchises, and persons contracting with a corporation in these particulars do so subject to its dissolution or termination of franchise. Manning v. Telephone Co., 18 App. D. C. 191; 29 W. L. R. 342. XVII. Rescission. Where a contractor is himself the cause of delay in commencing work under the contract, neither he nor his sureties can be heard to urge such delay as ground for annulling the contract, or for exoneration from all liability under it. United States v. Moloney, 4 App. D. C. 505; 22 W. L. R. 785. Where, under a power expressly reserved in a contract, the party let- ting the contract annuls it for breach thereof, neither the contractor nor the sureties on his bond are exonerated from liabality for prior breaches of the contract. lb. A contract for the sale and purchase of 18 cars of oats, 1,400 to 1,500 bushels to the car, of a certain grade, at a price stipulated, shipments to be made at the rate of two cars per month, is a single contract, and if any shipment is not of the grade called for the purchaser may rescind the contract in toto, even after the receipt of several shipments, provided he acts with due dihgence. Moran v. Wagner, 28 App. D. C. 317; 34 W. L. R. 785. A meeting of minds is essential to the validity of a contract, and in Contracts. 221 the absence thereof equity will rescind an apparent contract. Lyon v. Smith, 2 App. D. C. 37; 22 W. L. R. 131. Where the purchaser of merchandise, failing to make payment in ac- cordance with the terms of the contract, orally agrees with the seller to return the goods, such agreement will revest the title to the goods in the seller, who may replevy them. Cement Co. v. Wheatley, 9 App. D. C. 334; 24 W. L. R. 743. One seeking to rescind a contract on any ground that would entitle him to rescind it must first restore what he has received. Lyons v. Allen, 11 App. D. C. 543; 26 W. L. R. 50. As to necessity for tender of purchase money received by one seek- ing to rescind a purchase on the ground of fraud. See Samaha v. Mason, 27 App. D. C. 470 ; 34 W. L. R. 403. A purchaser of real property can not rescind the contract of sale be- cause of the vendor's misrepresentations with reference to its area, where, after discovering the fraud, he collected rents for some months upon the property, corresponded with the vendor as to future terms of rental, declined to reduce the rent, made repairs, and performed other acts of ownership. Shappirio v. Goldberg, 192 U. S. 232 ; 32 W. L. R. 132. If a party seeks to have a contract rescinded or changed in a material particular, upon the ground of mistake or fraud, he must, upon discovery of the facts, at once announce his purpose and adhere to it, otherwise he will be held to have waived the objection and be bound as if no mistake or fraud had occurred. Shappirio v. Goldberg, 20 App. D. C. 185 ; 30 W. L. R. 450. To obtain the rescission of a contract for the purchase of real estate, on the ground of fraud or mistake, the party complaining must have, on discovery of the facts, at once announced his intention and adhered to it; otherwise he will be held to have waived the objection. lb. In order to rescind a contract for the purchase of real estate on the ground of fraudulent representations by the sellers, it must be established by clear and descisive proof that the alleged representations were made in regard to a material fact; that they were false; that the maker of the representations knew they were not true, and made them to be acted on by the other party, and that they were so acted on by the other party to his damage, in ignorance of their falsity, and with a reasonable belief that they were true. lb. A party seeking to rescind a contract or completed sale for fraud must act within a reasonable time, the reasonableness depending upon the facts of the particular case. Tyler v. Moses, 13 App. D. C. 428; 26 W. L. R. 771. A complete and binding contract cannot be annulled or avoided by one party without the consent of the other, in the absence of any stipulation in it authorizing one or the other to do so upon the happening of some event or condition therein set forth. Purcell Envelope Co. v. Smith, 36 W. L. R. 515. Defendants gave plaintiff a trial order for lumber at a price named, the latter to pay freight charges, and defendants reserving the right to reject it if unsatisfactory. The first carload proving unsatisfactory de- fendants rejected it and notified plaintiff that it was held subject to their 222 Contracts. order upon repayment of freight charges. Plaintiff acquiesced in such rejection, and correspondence looking to a resale of the lumber was had without result. Plaintiff thereupon sued to recover the contract price of the lumber. Held, that upon the rejection of the lumber by defendants the contract was at an end, the lumber remained the property of plain- tiff subject to repayment of the freight charges paid by defendants, and that the trial court properly directed a verdict for the defendants for the amount of such freight charges. Virginia-Carolina Lumber Co. v. Eisin- ger, 29 App. D. C. 531 ; 35 W. L. R. 404. XVIII. Pleading. A written agreement between attorneys and client provided for a con- tingent fee of a sum equal to from 10 to 15 per centum of the market value of the interest of the client in her father's estate, upon the setting aside of his will. As the result of a compromise the will was set aside, and in the compromise agreement the value of the estate was fixed at $600,000, and 13 1-3 per cent, of it, amounting to $80,000, was assigned to the client, who thereupon paid to the attorneys $12,000 for professional services. The attorneys, however, claimed the market value of the prop- erty received by the client to be $90,000, and claimed $1,500 additional. Their claim being denied, they brought an action for its recovery, and in the affidavit annexed to the declaration they alleged that the market value of such property was not less than $90,000, that this valuation was agreed upon between them and their client, who had likewise agreed upon $13,500 as the compensation to be paid them. Held, that an affidavit of defense which failed to deny this allegation of the plaintiffs' affidavit was insufficient, and a judgment for plaintiffs under Rule 73 affirmed. Heiber- ger V. Worthington, 23 App. D. C. 565 ; 32 W. L. R. 361. As to sufficiency of affidavit in action on contract. See Slater v. Van Der Hoogt. 23 App. D. C. 417; 32 W. L. R. 232. XIX. Evidence. The mere fact of the formal execution and deposit of mutual wills can not be accepted as sufficient proof of the existence of an anterior agreement or contract of which they are alleged to be the execution. Coveney v. Conlin, 20 App. D. C. 303 ; 30 W. L. R. 467. Where it is sought to prove by parol an agreement or contract between husband and wife that each would, by last will and testament, leave to the other all property, which he or she should possess at the time of death, such proof must be of the most satisfactory character, and can not be supplied by presumptions. In such case the agreement or contract must be established in addition to the proof of the execution of the mu- tual wills. Conlin v. Coveney, 30 W. L. R. 150. The certainty of proof required to establish an oral contract to trans- fer property by will is not absolute, but reasonable ; and the court will look to the situation and declarations of the promisor, the relations of the parties, and surrounding circumstances as disclosed by all the testi- mony, in aid of the direct evidence, to ascertain the necessary terras of the contract. Whitney v. Hay. 15 App. D. C. 164; 27 W. L. R. 430. As to sufficiency of evidence of a verbal agreement to pay an annuity CoNTRACT9» 223 in consideration of services rendered, to charge a trust estate with its payment. See Wash. Loan & Trust Co. v. Darling, 21 App. D. C. 132; 31 W. L. R. 129. AdmissibiHty of parol evidence to establish agreement affecting the ob- ligation of a bond. McGuire v. Gerstley, 26 App. D. C. 193 ; 33 W. L. R. 754. As to admissibility of evidence to establish parol contract. See Cherry V. Whalen, 25 App. D. C. 537 ; 33 W. L. R. 485. Parol evidence is admissible to show that a contract was finally execut- ed and delivered at a date subsequent to that shown on its face. Dis. of Col. V. Camden Iron Works, 181 U. S. 453. In an action on a contract of sale of a business, to recover damages for breach of a covenant not to engage in the business, evidence that the value placed on the stock by defendant was much less than the price paid is admissible for the purpose of showing the value of the good will. Helphenstin'e v. Downey, 7 App. D. C. 343 ; 24 W. L. R. 7. Where the declaration in such case alleges an indirect violation of the contract, evidence tending to show that the premises in which the new business was estabHshed was leased by defendant in his own name, that he superintended the fitting up of the place and purchase of the stock, assisted in the store, that the books were kept at his house, and other circumstances connecting him with the business of the new establishment, held sufficient to go to the jury on the question of such violation. lb. Where the declaration in such case alleges the loss of customers by reason of such breach, plaintiff is not bound to show specifically and by name what customers were actually lost. lb. Where a written contract between attorney and client fixes the fees to be paid, it is immaterial, in an action thereon, what would be a just and reasonable compensation for services rendered. Heiberger v. Worth- ington, 23 App. D. C. 565; 32 W. L. R. 361. In giving effect to a written contract by applying it to its proper sub- ject-matter, extrinsic evidence may be admitted to prove the circum- stances under which it was made, whenever, without the aid of such evi- dence such application could not be made in the particular case. Harten V. LoMer, 29 App. D. C. 490; 35 W. L. R. 386. It may be averred in pleading and shown in proof that a deed, bond or other instrument was in fact made, executed and delivered at a date subsequent to that stated on its face. Dis. of Col. v. Camden Iron Works, 15 App. D. C. 198 ; 27 W. L. R. 462. As to evidence of contract of subscription to stock to enabje recovery. See National Express & T. Co. v. Morris, 15 App. D. C. 262; 27 W. L. R. 690. As to proof of specific contract for services by performance of ser- vices with knowledge and approval of party sought to be bound. See Jones V. Slaughter, 28 App. D. C. 43 ; 34 W. L. R. 462. Competency of surviving party as witness. See Jones v. Slaughter, 28 App. D. C. 43; 34 W. L. R. 462; Slaughter v. Loeb, 28 App. D. C. 57; 34 W. L. R. 480. 224 "Contracts. XX. Building Contracts. Specifications are properly embraced in the term plans as used in a building contract. Whelan v. McCuIlough, i App. D. C. 58 ; 23 W. L. R. 636. In the absence of express provisions to that effect in the contract, the certificate of an architect is not final and conclusive to the extent of pre- cluding the owner from showing that the materials were inferior, or the work poorly done, or that there were other violations of the contract. Mercantile Trust Co. v. Hensey, 27 App. D. C. 210 ; 34 W. L. R. 206. The general or usual powers of an architect are not of an unlimited character; and it is competent for the parties contracting with respect to the work to be done and the manner and conditions under which it is to be executed to determine for themselves the conditions under which the work may or can be done, and thus exclude the power of the archi- tect, and place such conditions beyond his control. Pontano v. Robbins, 22 App. D. C. 253 ; 31 W. L. R. 487. When a contract for certain interior marble work in connection with a building provides that work under the contract shall begin when the en- closing walls are up and the roof on, and be completed by a time stated, it is not within the power of the architect to change the contract in that regard without the consent of the contractor and require the contractor to proceed with the work before the walls are up and the roof on. lb. And in such case, it is no defense to a claim by the contractor for damages sustained by him by the failure to have the building in condition to perform his contract within the time limited, that he refused a demand made by the architect in charge that he should proceed with his work before the walls were up or the roof on as required by his contract. lb. Plaintiff entered into a contract with defendant to provide, under the direction and to the satisfaction of certain architects, all materials and perform all work shown in the drawings and specifications of said archi- tects for the interior marble finish of a chapel in a certain church. By article 8 of the contract it was provided that the owner (defendant) should provide all labor and materials not included in the contract in such man- ner as not to delay the material progress of the work, and on failure so to do, thereby causing loss to the contractor, to reimburse him for such loss, the amount of such loss to be "determined by the architects or by arbitration as provided in article 3, of this contract." Article 3 related to alterations made by direction of the architects and the ascertainment of allowances therefor by them, and provided that in case of dissent from their award submission should be had to arbitrators whose selection and powers were provided for. In an action by the contractor to recover for time lost and extra expenses incurred through delay caused the plaintiff in performing his undertaking, it was held, that an award by the archi- tects or by arbitrators chosen as provided in article 3 was not a condi- tion precedent to the maintenance of an action on the contract. Pontano V. Robbins, 18 App. D. C. 402 ; 29 W. L. R. 527. One who, with the approval of church authorities engaged in con- struction of church building, undertakes to provide interior construction of a chapel to be connected with the church and who enters into a con- Contracts. 225 tract with another for such work, such contract providing that "owner agrees to provide all labor and materials not included in this contract in such manner as not to delay material progress of the work, and in event of failure so to do, to reimburse contractor for loss," thereby be- comes an absolute guarantor of the necessary construction preliminary to the commencement of the other's work. lb. An owner of a building accepting an order from the contractor to a materialman payable out of final instalment, on condition that the con- tractor perform all the conditions of his contract, will not be liable on such acceptance where the contractor defaults before such final instalment becomes due and payable. Barber v. Johnson, 5 App. D. C. 305 ; 23 W. L. R. 183. The contract rights of all parties are measured by their relative rights, powers and duties under their several agreements between them- selves, with special reference to the primary contract between the owner and builder, to which all other contracts must conform. Herrell v. Dono- van, 7 App. D. C. 322 ; 23 W. L. R. 821. Advance payments made by the owner to the contractor, otherwise than as provided by the contract, will not discharge the surety on the con- tractor's bond against liens. lb. Subcontractors, equally with the contractor, are bound by the terms of payment stipulated for in the contract between the owner and builder. lb. Where a building contract contains provisions for specific payments in instalments as the work progresses, and for a final payment upon com- pletion, and upon the production in each case of a receipt or release from the subcontractors, it is not competent for the owner and builder to cut out the subcontractors and nullify the mechanics' lien law by a supple- mental agreement between themselves to anticipate the final payment and dispense with the requirement of releases from subcontractors, at least not without notice to the latter and ample opportunity to them to pro- tect their interests. Riggs Fire Ins. Co. v. Shedd, 16 App. D. C. 150; 28 W. L. R. 290. Where the parties to a building contract stipulate therein that on fail- ure of the contractor to complete the building within a specified time he shall pay or allow to the owner, by way of liquidated damages a certain sum for each day thereafter that the work remains incomplete, the con- tract will be taken to express the intent of the parties that the damages in such case shall be liquidated, and a court of equity will so regard it, in the absence of a showing to the contrary. Bmack v. Campbell, 14 App. D. C. 186 ; 27 W. L. R. 314. As to equitable lien in favor of contractors. See Prance v. Coleman, 39 App. D. C. 286; 35 W. L. R. 193. Unless expressly provided for by the contract, counsel fees incurred in defending proceedings for the enforcement of mechanics' liens cannot be recovered as legal damages in an action by the owner of the property on the bond of the contractor to secure performance of the contract. Donovan v. Johnson, 13 App. D. C. 356 ; 26 W. L. R. 714. To an action on a bond securing the performance of a building con- tract the surety pleaded in bar the failure of the plaintiff to furnish man- 226 Contracts. tels as provided in the contract, and also his failure to pay the total sum agreed for completing the houses. Held that such provisions of the con- tract were covenants and not conditions, and demurrers to the pleas virere properly sustained. Mercantile Trust Co. v. Hensey, 27 App. D. C. 210; 34 W. L. R. 206. XXI. Government Contracts. It is not within the power of a court on mandamus to declare that to be a complete and binding contract which § 3744, Rev. Stat., in effect de- clares not to be without certain formalities. International Co. v. Lamont, 2 App. D. C. 532; 22 W. L. R. 173. The acts of Congress of March 23, 1883, and Aug. 11, 1888, held not to modify § 3744, Rev. Stat., to the extent of dispensing with the formal execution of contracts as a prerequisite to their legality. /&. One who, after the rejection of his bid for contract work on a public improvement, submits another and lower bid which is accepted, and voluntarily enters into the performance of his contract under such bid, is estopped to assert that the first bid should have been accepted and so hold the Government for the difference in price between the first and last bid. /&. A bid for doing public work which departs from the specifications in the instructions to bidders, in respect of the time for performance, may be properly rejected by the head of the executive department authorized to enter into contracts for such work, notwithstanding the previous ap- proval and acceptance of the bid by a subordinate. lb. The act of Aug. 13, 1894, is to be liberally construed in favor of per- sons furnishing labor and materials. Vermont Marble Co. v. Burgdorf, 13 App. D. C. 506; 27 W. L. R. 35. The liability of sureties on a bond given in pursuance of the act of 1894, is to be governed by the same rule of construction that applies in the assertion of liens against private owners of buildings under the ordi- nary lien laws, rather than by that which applies in the case of special private bonds, etc. lb. The effect of the act of 1894 is to give a special lien to materialmen and to substitute the bond in place of the building upon which the lien is charged. Standard Oil Co. v. City, &c. Trust Co., 21 App. D. C. 369; 31 W. L. R. 162. Coal furnished to a party having a dredging contract with the United States, and used by him in the operation of the dredging, is not material supplied and used in the prosecution of the work within the meaning of the act of Congress of Aug. 13, 1894, and the sureties on the bond given by the contractor pursuant to that act are not liable for the price of said coal. Chapman v. City Trust, &c. Co., 23 App. D. C. 153 ; 32 W. L. R- 53; affirming 31 W. L. R. 396. Oil for lubricating the machinery of a dredge supplied to a contractor in the prosecution of a government dredging contract and so used is not ■'material supplied in the prosecution of the work," within the meaning of the act of Congress, approved Aug. 13, 1894, or the bond given by a contractor under such act. Standard Oil Co. v. Surety Co., 30 W. L,. R. 778 ; affirmed in 21 App. D- C, 369 ; 31 W, L- R. 162. Contracts. 227 Where a dredging machine used by a party having a contract with the United States fails to work properly in consequence of imperfect or im- paired machinery the sureties on contractor's bond given pursuant to act of Aug. 13, 1894, are not liable for cost of repairs thereto. Briscoe V. City Trust, S. D. & Surety Co., 23 App. D. C. 155; 32 W. L. R. 53. Under the act of Congress of Aug. 13, 1894 (28 Stat. 278), a party fur- nishing materials which are used by a contractor in the erection of a public building may maintain an action on such bond against principal and sureties therein in the name of the United States to his use, notwith- standing the agreement under which the materials were furnished was made with the contractor and a third person whom he had associated with himself in the doing of the work. Vermont Marble Co. v. Burgdorf, n App. D. C. 506; 27 W. L. R. 35. The association by a contractor with the government of another person with him in the performance of his contract does not make the firm thus created subcontractors so as to take those furnishing materials to it out of the protection of the act of Congress of Aug. 13, 1894. Standard Oil Co. V. City Trust, Etc. Co., 21 App. D. C. 369 ; 31 W. L. R. 162. As to whether the materials protected by the lien of the act of Aug. 13, 1894, are strictly limited to such things as visibly enter into and form a part of the structure contracted for. See lb. Action on a bond given in pursuance of the act of Aug. 13, 1894, will not be defeated because the reference in the bond is to a contract with "Cornelius N. Bliss, Secretary of the Interior," while the true contract is with the United States, where the subject matter of the contract as described in the bond is identical with that described in the contract it- self and no one has been misled or prejudiced by the inaccuracy. Peake V. United States, 16 App. D. C. 415 ; 28 W. L. R. 438. In an action on a bond given by a contractor with the District of Columbia, conditioned as provided by the act of Congress of Feb. 28, 1899 (30 Stat. 906), for payment by the contractor of all claims for labor and materials furnished him in the prosecution of the work, brought to recover the value of materials furnished by the plaintiff to the contractor, the summary judgment provided for by Rule 73 of the court below may be rendered against the surety on the bond for want of a sufficient af- fidavit of defense, fidelity & Deposit Co. v. Smoot, 20 App. D. C. 376; 30 W. L. R. 532. On the failure of a contractor with the Government to make payment to a materialman in accordance with the terms of the contract for such material, the latter is entitled to regard such contract as rescinded, with the right in himself to maintain an action against the sureties on the bond given by the contractor, as required by the act of Aug. 13, 1894 (28 Stat. 278), for the value of the materials delivered, although the contract pro- vides that payment of a certain per cent, of the contract price should be postponed until the work is completed; and it is no defense to such ac- tion that subsequent to such failure on the part of the contractor the materialman refused to resume the delivery of the material and the con- tractor was compelled to purchase at an advanced price. American Bond- ing &■ Trust Co. V. U. S. to use of Lincoln, 15 App. D. C. 397; 27 ^V. L. R. 757. 228 Contracts. Where a contract entered into between the United States, acting by the Secretary of the Interior, and contractors for the erection of buildings for the Government, stipulated, among other things, that the contractors would well and faithfully observe the requirements of the act of Aug. 13, 1894, and promptly make payment to all persons furnishing them labor and materials in the prosecution of the contract, and contemporaneously with the execution of such contract the contractors, with their sureties, executed a bond to the United States conditioned for the faithful perform- ance of "all and singular the covenants, conditions and agreements of said contract," held that the contract was by reference incorporated into the bond, and was as much a part of the bond as though it had been copied verbatim into it. Peake v. United States, 16 App. D. C. 415; 28 W. L. R. 438. The making of sub-contracts by a Government contractor is not an assignment of claims within meaning of § 3477, Rev. Stat., nor a transfer of contracts within § 3737. Manning v. Ellicott, 9 App. D. C. 71; 24 W. L. R. 439. Where work under a contract was to be done in sections, the contract is separate as to each section ; and where the Government on default of the contractor, completes some only of the sections, it may recover on the bond of the contractor for damages suffered. United States v. Mo- loney, 4 App. D. C. 505 ; 22 W. L. R. 785. Where, on default by a contractor, the Government completes the work contracted for, changes and modifications in the plan and specifications of the work, the manner of treating which are provided for in the con- tract, will not nullify the contract, and at most, could only be a proper subject to be considered in estimating damages. lb. Under §§ 892, 893 of Code, it is unlawful for a contractor upon public work to require or permit a laborer or mechanic employed by him to work more than eight hours in any one calendar day, except in case of extraordinary emergency, and the question of what constitutes such is for the court to determine. Penn Bridge Co. v. United States, 29 App. D. C. ; 35 W. L. R. 287. "Extraordinary emergency" as used in §§ 892, 893 of Code, imports a sudden and unexpected happening, an unforseen occurrence or condition, calling for immediate action to avert imminent danger ; an unusual actual peril. lb. Sections 892, 893 of Code, limiting hours of daily service for laborers and mechanics employed by contractors for public works, are constitutional and valid. lb. See also Mails. XXII. Compromise Agreements. The weight given and favor shown to a compromise agreement in set- tlement of disputes concerning mutual rights and obligations, depends not only upon the apparent reasonableness of the claims asserted and good faith of the party making the same and taking a benefit thereby, but also upon the conditions of the parties and their previous relations with each other. Holtzman v. Linton, 27 App. D. S. 341 ; 34 W. L. R. 302. A compromise agreement based upon invalid contracts and conveyances Contracts. 229 will fall with them unless made under circumstances showing new con- siderations and fair dealing. lb. XXIII. Sealed Instruments. In the case of a sealed instrument, the delivery, if conditional, can not be made to a party to it without waiving the benefit of the condition, un- less such condition appears on the face of the instrument itself. Bieber V. Cans, 34 App. D. C. 517 ; 33 W. L. R. 51. Where a sealed instrument is complete on its face, unambiguous in its terms, and contains an unconditional promise to pay the sum sued for upon the happening of an event which it is admitted has occurred, an alleged parol agreement that it should become operative upon a condi- tion not expressed on its face can not be given effect as a valid collateral agreement between the parties. lb. XXIV. In General. An injunction will issue to prevent third parties from persuading workmen to break their contracts of employment. Adams v. Columbia Typographical Union, 34 W. L. R. 227. Courts of law possess no right or power to give relief in cases of contract where a court of equity would not exercise a similar power. Dis. of Col. V. Harlan & Hollingsworth Co., 36 W. L. R. 82. That a licensee of a former owner of patents, having the right under contract to lease phonographs and graphophones, does not itself perform the contract, and sells only graphophones, thereby discriminating against the phonograph, is no answer to an application for a temporary injunc- tion to enjoin a third party, who has become owner of the patents, from infringing upon his rights under the contract; but the fact might be availed of by proper proceedings to enforce or vacate the contract. Whit- son V. Columbia Phonograph Co., 18 App. D. C. 565; 29 W. L. R. 804; 98 O. G. 418; C. D. 1903, p. 497. As to presumption against implied contract between parent and child for payment of board and wages for services. See Tuohy v. Trail, 19 App. D. C. 79; 30 W. L. R. 3. As to contracts of father with emancipated minor child. See McDaniel V. Parish, 4 App. D. C. 213 ; 23 W. L. R. 669. As to legal obligation of wife on contract by husband for erection of house on real estate owned by them jointly. See Rheam v. Martin, 26 App. D. C. 181; 33 W. L. R. 807. Evidence held insufficient to establish valid contract by a husband to make a will devising and bequeathing to his wife all the property which he then had or might die seized of, wherever situated. Coveney v. Con- lin, 20 App. D. C. 303 ; 30 W. L. R. 467. As to recovery by married woman on agreement to redeem stock. See Crandell v. Classen, 25 App. D. C. 5 ; 33 W. L. R. 130. The power to sell real estate does not include the power to make a contract therefor. Mannix v. Hildreth, 3 App. D. C. 259; 33 W. L. R- 93. As to power of real estate broker under contract with owner of land relative to its sale. See Dotson v. Milliken, 27 App. D. C. 500; 34 W. L. R. 334; S. C. 209 U. S. 337. 230 Contracts. As to liability of partners on partnership contract. See Presbrey v. Thomas, 1 App. D. C. 171; 21 W. L. R. 659. As to sufficiency of shipping articles. See Bark Shetland v. Johnson, 21 App. D. C. 416; 31 W. L. R. 411. As to limitation of actions on contracts. See Willard v. Wood, i App. D. C. 44; 21 W. L. R. 579. As to effect of assumption of mortgage by grantee in deed. See 76. As to effect of insolvency of building association on contract with borrowing member. See Armstrong v. Building Association, 15 App. D. C. 1; 27 W. L. R. 351. As to duty of receiver of an insolvent building association under a con- tract with borrowing member. See lb. In an action of covenant against the District of Columbia to recover the price of certain pipe furnished under contract, it was not error for the court to submit to the jury the question whether, under all the cir- cumstances, interest should be allowed plaintiff from the time of the last delivery or from a later date, and to refuse a prayer by defendant al- lowing interest only from the time of the institution of the suit. Dis. of Col. V. Camden Iron Works, 15 App. D. C. 198 ; 27 W. L. R. 463. Where a contract is to pay money in instalments, recovery thereon can be had only for instalments due at the time of suit. Mansfield v. Winter, 10 App. D. C. 549; 25 W. L. R. 270. The decision of the Commissioner of Pensions whether or not an at- torney for a claimant can contract for a fee for his services cannot be controlled by mandamus. Phillips v. Hitchcock, 19 App. D. C. 237 ; 30 W. L. R. 45. As to competency of interested party as witness in action against ad- ministrator on contract of intestate. See Tuohy v. Trail, 19 App. D. C. 79; 30 W. L. "R. 3. As to impairment of obligation of contract. See Manning v. Telephone Co., 18 App. D. C. 191 ; 29 W. L. R. 342. As to liability of railroad on special contract of carriage issued by an- other road claimed to be within a system represented by the former. See Tyler v. Pennsylvania R. R. Co., 18 App. D. C. 31; 29 W. L. R- 203. In an action against a railroad company founded upon a special con- tract of carriage the burden of proof is on the plaintiff to show that de- fendant entered into the contract and become bound thereby. lb. As to binding effect of stipulations in contracts of carriage. See Boering v. Ches. Beach R. R. Co., 193 U. S. 442 ; 32 W. L. R. 195. The question of validity of an oral contract is one for the court and not the jury. Looney v. Metropolitan R. R. Co., 24 App. D. C. 510; 33 W. L. R. 39. See also Assignments; Attorney and Client; Beneficiai, Associa- tions; Bonds; Champerty; Equity; Evidence; Insurance; Liens; Marriage ; Married Women ; Patents ; Quantum Meruit ; Religious Institutions; Specific Performance; Taxation and Assessment; Usury. Contract'ors — Conversion. 231 CONTRACTORS. Money in the hands of a municipality due a contractor is not subject to equitable garnishment by a creditor of the contractor. Columbia Brick Co. V. Dis. of Col., 1 App. D. C. 351 ; 21 W. L. R. 739. As to effect of Mechanics' Lien Law of 1884 on §§ 709, 710, R. S. D. C. See lb. Relation, as principal and agent, of owner of building and contractor making improvement in respect of removal of old material. Swart v. Justh, 34 App. D. C. 596; 33 W. L. R. 149. See Contracts. CONTRIBUTION. As to right of surety to contribution from his co-sureties where se- curity received by him from his principal has been applied to the benefit of all the sureties. See Gibson v. Shehan, 5 App. D. C. 391 ; 23 W. L. R- 184. As between joint tort feasors. See Gas Light Co. v. Lansden, 172 U. S. 534; reversing 9 App. D. C. 508. CONTRIBUTORY NEGLIGENCE. See Negligence. CONTUMACIOUS WITNESSES. See Congress. CONVERSION. The question of sale and conversion of real estate depends upon the law of the jurisdiction in which it is situated. Holcomb v. Wright, 5 App. D. C. 76; 23 W. L. R. 24. As to when money derived from the sale of real estate of a decedent treated as personalty. See lb. There is no general power in equity to order the conversion of realty into personalty upon the ground of advantage to all parties. Am. Sec. Trust Co. V. Muse, 4 App. D. C. 12; 22 W. L. R. 409. An express direction in a will to sell testator's real estate on the death of life tenants, operates to convert the property into personalty from the death of the testator. Inglehart v. Inglehart, 26 App. D. C. 209; 33 W. L. R. 711. As to conversion of real property into personalty, where personal es- tate sufficient to pay bequests for the payment of which the will directed the real estate to be sold. Walker v. Evans, 29 W. L. R. 348. Where property is to be converted the beneficiary has the right to take the property just as it is, without waiting for the conversion. Engle V. Mades, 25 W. L. R. 229. Real estate directed by will to be converted into money is to be re- garded as if it were money at the time of the testator's death. Vogt v. Vogt, 26 App. D. C. 46 ; 33 W. L. R. 390. A direction in a will that real estate be sold one year after the death of the testator and the proceeds distributed, operates as an equitable con- version of the real estate ; and such conversion is not affected by the fact that on the sale being made within the year, the heirs and not the ex- ecutor, executed the deeds, the proceeds being retained as though the 232 Conveyances. executor had made the conveyances. Miller v. Payne, 28 App. D. C. 396; 34 W. L. R. 798. The doctrine of equitable conversion is not applied to conveyances by way of mortgage or deed of trust to secure debts ; and where, after the death of the grantor, intestate, the property is sold for default in pay- ment of the debt, the surplus proceeds are payable to his heirs, although the conveyance provides that such surplus shall be payable to the grantor, "his executors, administrators and assigns." Burke v. Robinson, 29 W. L. R. 654. As to what constitutes a conversion by a carrier. See Beasley v. Balto. & Pot. R. R. Co., 27 App. D. C. 595 ; 34 W. L. R. 430. CONVEYANCES. A conveyance made to a wife or child will be presumed to carry a beneficial interest, and such presumption can only be overcome by in- dubitable evidence. McCartney v. Fletcher, 11 App. D. C. 1 ; 35 W. L. R. 327. As to effect of conveyance to a married woman to raise a resulting trust in favor of her husband. See Dorsey v. Manning, 15 App. D. C. 391; 27 W. L. R. 788. A trustee vested with the legal title can pass the same even when the conveyance is made in breach of his trust. Chesapeake Beach Ry. Co. V. Washington P. & C. R. R. Co., 23 App. D. C. 587 ; 32 W. L. R. 309. A conveyance by a trustee making sale under a decree of foreclosure passed by a court wanting in jurisdiction passes the legal title where such trustee was vested with the legal title by the trust deed. lb. • Where a conveyance of real property is procured by fraud equity will regard the vendee as holding the legal title for the benefit of the vendor, where rights of innocent purchasers are not affected. Godfrey v. Button, 16 App. D. C. 117; 28 W. L. R. 171. As to sufficiency of evidence justifying the setting aside of a con- veyance, as in fraud of creditors. See White v. Glover, 23 App. D. C. 389; 32 W. L. R. 241. As to setting aside deed on ground of fraud. See Godfrey v. Button, 27 W. L. R. 50. As to setting aside conveyances made to one occupying a fiduciary re- lation to the grantor. See Holtsman v. Linton, 27 App. D. C. 242; 34 W. L. R: 302. As to effect on validity of assessment of damages and benefits on condemnation of land, of conveyance of the land in separate and distinct parcels between the time of the impaneling of the jury and its verdict. See Wilkinson v. Dis. of Col, 22 App. D. C. 289; 31 W. L. R. 507. As to property authorized to be conveyed by Commissioners of Dis- trict under Acts of March 2, 1881, and April 1, 1882. See Dist. of Col. V. Cropley, 23 App. D. C. 232; 32 W. L. R. 97. As to effect of deed by Commissioners acting under the authority of acts of Congress relative to sale of certain water-front lots in George- town. See lb. As to effect of correct description of property in deed on actionable Conveyance to Uses — Copyright. 233 character of misrepresentations as to area made by vendor. See Shap- pirio V. Goldberg, 192 U. S. 232; 32 W. L. R. 132. As to effect of conveyance by a debtor to one of his creditors as an assignment for the benefit of creditors. See Droop v. Ridenour, 11 App. D. C. 224; 25 W. L. R. 481. As to necessary parties to suit brought to avoid a conveyance. See Van Hook v. Prey, 13 App. D. C. 543 ; 27 W. L. R. 39. As to who the proper party to revive a suit brought to rescind a conveyance of land. See Webh v. Janney, 9 App. D. C. 41; 24 W. L. R. 454. As to conveyances of vifhich one dealing with land is bound to take notice. See Armstrong v. Ashley, 22 App. D. C. 368; 31 W. L. R. 439. Affirmed in 204 U. S. 272. See Deeds ; Fraudulent Conveyances ; Mortgages and Deeds of Trust; Reai, Probekty. CONVEYANCE TO USES. As to what constitutes an executory trust. See Sims v. Georgetown College, 1 App. D. C. 72; 21 W. L. R. 595. CONVICTS. As to effect of conviction of crime on right to administer estate of decedent. See McCarthy v. McCarthy, 20 App. D. C. 195; 30 W. L. R. 419. COPARCENERS. See Equity. COPYRIGHT. A blank book of forms containing not a complete English sentence or composition of any kind is not the subject of copyright. Everson v. Young, 26 W. L. R. 546. A chromolithograph is a "'pictorial illustration" within the meaning of section 4952, R. S. U. S., and is within the protection of the copy- right law (sees. 4952, 4956, and 4965 R. S. U. S., as amended by Act of March 3, 1891, ch. 565, 26 Stat. 119, and Act of March 2, 1895, 28 Stat. 965). Bleistein v. Donaldson Lith. Co., 188 U. S. 239; 31 W. L. R. 99. To secure a copyright of a book of dramatic composition, the work must be published within a reasonable time after the filing of the title page, and two copies delivered to the Librarian of Congress. Koppel V. Downing, 11 App. D. C. 93; 25 W. L. R. 511. The interests of a party as printer and publisher merely of a dra- matic composition will not entitle him to obtain a copyright for the protection of that interest. lb. A mere temporary licensee of the use of a dramatic composition, without any proprietary right or interest in it, and without special au- thority from the proprietor to act as his agent, has no right to take out a copyright of the manuscript, and no authority to confer upon a printer or publisher employed by him the right to take out a copyright in his own name. lb. Where a temporary licensee of the use of a dramatic composition, 234 Corporations. without authority from the proprietor, authorized a publisher employed by him to take out a copyright in his own name, which was done, and thereafter the proprietor agreed with the publisher to defray the expenses of a suit for infringement to recover penalties provided by § 4966 R. S., the recovery to be apportioned between them; held that the interest of the publisher was not sufficient to entitle him to a copy- right, and that the proprietor could not, by retroactive adoption, con- stitute him a trustee so as to enable him to maintain the suit. lb. Where a proprietor of a work, after filing a copy of the title, neglects to perfect his copyright, and by such neglect abandons such right, that right cannot sixteen years thereafter be revived by authorizing another to apply for and obtain a copyright in a name different from that of the real proprietor. lb. An action to recover damages for the infringement of a copyright cannot be maintained by the person who, though not the proprietor of the thing copyrighted but merely the printer and publisher thereof under a contract with the proprietor, unlawfully takes out a copyright in his own name. Koppel v. Doivning, 24 W. L. R. 343. Reproduction, through the agency of the phonograph, of the sounds of musical instruments playing the music composed and published by the appellants was not a copy or publication of the same within the meaning of the Copyright Act (R. S. § 4952). Stern v. Rosey, 17 App. D. C. 562; 29 W. L. R. 159. Whatever rights one may have as author and composer of musical compositions and vocal selections must depend wholly for recognition and remedy upon the provisions of the Copyright Act. lb. The policy of the law of copyright requires that the public should have notice, by a true and correct official registry, of the real author or proprietor entitled to the enjoyment of the monopoly granted thereby as against the public. Koppel v. Downing, 11 App. D, C. 93 ; 25 W. L. R. 511. A writ of mandamus will not be issued to compel the Librarian of Congress to register a publication claimed to be the subject of copy- right, unless it appears that the publication comes fairly within the purview of the copyright act. Evwson v. Young, 26 W. L. R. 546. CORPORATIONS. I. Incorporation. II. Name. III. Domicil. IV. Officers and Agents. V. Seal. VI. Elections. VII. Stock and Stockholders. VIII. Powers as Respects Members. IX. Power to Make and Validity of By-laws. X. Powers in General. XI. Ultra Vires. XII. Reorganization. XIII. Consolidation. XIV. Dissolution. XV. Foreign. XVI. In General. Corporations. 235 I. Incorporation. The creation of corporations and their amendment, embracing the regulation of the amount of their capital stock, is a subject-matter exclusively within the legislative power; and is a power that cannot be delegated, though under a general act, complete in its details, cer- tain functions relating to the final act of issuing the certificate of in- corporation, may be delegated to special agencies. In re Macfarland, 36 W. L. R. 114. Corporations organized under subchapter 4 of chapter 18, Code D. C, are, by the provisions of that subchapter, restricted to a single class of business ; and the inclusion in a certificate of incorporation of several distinct classes of business is improper, and the paper is not entitled to record. Dancy v. Clark, 24 App. D. C. 487; 33 W. L. R. 18. There is no distinction between "railroads" and "railways," within the meaning of the provision of subchapter 4 of chapter 18, Code D. C, excluding the operation of railroads from the classes of business for which incorporation can be granted thereunder; and a certificate of in- corporation which states, among the classes of business to be carried on, "the operation of railways," is not entitled to record. lb. The trustees of corporations formed under the provisions of § 608, D. C. Code, must at all times be stockholders, as well for the first year as for all subsequent years ; and inasmuch as the persons who ac- tually sign and acknowledge the certificate must be regarded as the only stockholders of the company in the first instance, the trustees must be designated from among their number. A certificate of in- corporation naming five persons as trustees for the first year, three only of whom sign and acknowledge it, is fatally defective, and not entitled to be recorded. Ih. Court will not compel recordation where certificate is invalid under the law. lb. II. Name. Where an unincorporated association or club formed for social purposes has adopted and for several years used the name of "La Tosca Social Club," members withdrawing therefrom and forming them- selves into a corporation under the same name do not by that act ac- quire any exclusive right to the use of said name as against the re- maining members of the association who thereafter form a corporation under the name of "Original La Tosca Social Club," and an injunction will not lie to restrain the use of the latter name. Original La Tosca Club V. La Tosca Club, 33 App. D. C. 96; 32 W. L. R. 82. III. Domicil. The domicil of a corporation is in the State in which it is incorpor- ated, irrespective of the citizenship or residence of its officers and members and of the place where its business is carried on. Barley v. Gittings, 15 App. D. C. 427; 27 W. L. R. 802. IV. Officers and Agents. The provisions of § 567, R. S. D. C, subjecting trustees of certain 236 Corporations. corporations to liability for failure to make report, required by § 566, are penal in their nature and to be strictly construed against a party sought to be subjected to such liability. Jackson v. Clifford, 5 App. D. C. 313; 23 W. L. R. 134. Trustees liable under § 567, R. S. D. C. are those in control of the affairs of the corporation at the time of default made and who have incurred the penalty by neglect of duty. lb. In the absence of an express agreement by the party, or of the duty imposed by the express terms of a statute, one named in a certificate of incorporation as a trustee or director for the first year, may resign from such position and thereby relieve himself from liability as such; and such resignation may be proved by parol where documentary evi- dence thereof has been lost, or cannot be produced. lb. The board of managers of a corporation are without power to pass a resolution removing the president from office unless a call for a meet- ing be regularly made and due notice of the time and place of such meeting be given all the members of the board. Johnson v. Walker, 28 W. L. R. 187. A court of equity will, at the suit of the president of a corporation, enjoin its board of managers from refusing to recognize him as such. lb. The board of managers of a corporation, or the majority of them, may, without passing any formal resolution to that effect, or without convening in meeting, authorize the bringing of a suit for the protec- tion of the corporation. lb. The omission of the word "by" between' the title of the corporation and the names of its officers acting for it in the indorsement of a promissory note, is immaterial. Clark v. Reed, 12 App. D. C. 343 ; 26 W. L. R. 183. The power of a corporation to make and deliver notes can, generally, be executed only by an officer or agent thereof, but no formal proceed- ing is required to clothe him with power to act. Wash. Times Co. v. Wilder, 12 App. D. C. 62; 26 W. L. R. 136. That the president and general manager of a corporation is a party to a transaction whereby notes indorsed by him are made and passed for an antecedent debt of the corporation by a party not previously authorized to do so, is a sufficient ratification of the unauthorized act to bind the corporation. lb. No certain forms of words is essential to a ratification of the act of an agent ; but in many cases it may be presumed from mere ac- quiescence or a failure to repudiate. lb. Remedy to determine title to office in. Hayes v. Burns, 25 App. D. C. 242; 33 W. L. R. 200. As to right of officers to employ counsel to represent the corporation in litigation. See Russell v. Washington Savings Bank, 23 App. D. C. 398; 32 W. L. R. 278. Duly elected officers of a corporation are within the scope of their respective duties its agents to deal with third parties. lb. Whether or not a manager of a foreign corporation upon whom ser- vice of process was had, is to be regarded as the agent of the de- Corporations. 237 fendant corporation is immaterial; he was at least conducting the business which the defendant was doing in this District. Ricketts v. Sun Printing & Pub. Co., 27 App. D. C. 222; 34 W. L. R. 287. To hold a corporation liable for the tort of its agent, the act com- plained of must have been performed in the course and within the scope of the agent's employment. Gas Light Co. v. Lansden, 172 U. S. 534, reversing 9 App. D. C. 508. A corporation is not liable for the act of its general manager in writing a personal letter, which he copied in the official copy-book of the corporation, and which was used as the basis of a libel on the former manager of the company. lb. One dealing with a corporation is not bound to inquire into the legality of the election of de facto officers, when there are no others asserting rights ; and he may deal with such officers even though he knew there were grave irregularities attending their election. Scanlan V. Snow, 2 App. D. C. 137; 22 W. L. R. 62. As to right of incorporated club or society to exercise the power of amotion. See De Yturbide v. Metropolitan Club, 11 App. D. C. 180; 25 W. L. R. 463 ; Bryant v. Dental Society, 26 App. D. C. 461 ; 34 W. L. R. 19. V. Seal. As to effect of use of seal in connection with the indorsement of a note. See Clark v. Reed, 12 App. D. C. 343; 26 W. L. R. 183. VI. Elections. Where for more than thirty years the right of voting by proxy at annual elections of the managers of a mutual insurance company has been unquestioned, such custom creates a right to vote by proxy as fully as if it had been conferred by a formal by-law enacted by the managers. Johnson v. Walker, 28 W. L. R. 187. The right to vote by proxy for managers carries with it the right to vote upon any resolution proposing a suspension or amendment of that right. lb. Resolutions, passed at a meeting of the members of a mutual insur- ance company held for the purpose of electing managers, which limited the right to vote by proxy, a right which had been recognized for more than thirty years, and no notice of any intention to limit it having been given, held so unreasonable, unjust and opposed to common right as to render them void. lb. That many of the proxies were fraudulent or had been revoked, would not justify the adoption of the resolutions, since it was com- petent for the judges of election to reject any and all that could be shown to be fraudulent or revoked. lb. An exception to the rule against voting by proxy, where the by-laws do not authorize it, is where stock is held jointly by those acting in a fiduciary capacity. Scanlan v. Snow, 2 App. D. C. 137; 22 W. L. R. 62. The general power of a corporation to enact by-laws includes the power to enact a by-law authorizing voting by proxy. Archer v. Shoe- maker, 26 W. L. R. 98. 238 Corporations. The long-continued usage of a corporation to allow voting by proxy in its elections is as authoritative as an express by-law, and is com- plete authority to the judges of election to proceed in this manner at each election until the authority is in some way revoked. lb. General authority to hold an election in the customary way is con- ferred, either expressly or impliedly, upon the judges of election, and one or two members of the corporation cannot, in the midst of the election, break it up by revoking their authority. lb. While a court of equity may inquire into the legality of votes cast at an election held by a corporation, and reject those that are illegal, it cannot, in general, enjoin parties claiming corporate offices from acting in that capacity. lb. Where parties holding proxies authorizing them to vote for cer- tain directors illegally cast those votes for other directors, the votes may be challenged in a proper proceeding and thrown out ; but that proceeding ought, ordinarily, to be at common law and not in equity. lb. A member has the right to demand that the vote in electing chairman and adopting resolutions shall be by risks and not per capita where that method of voting is prescribed for electing managers. Walker v. Johnson, 17 App. D. C. 144; 28 W. L. R. 768. Power of trading corporation to enact by-laws allowing voting by proxy is implied where charter is silent. lb. Resolutions restricting right of voting by proxy and refusing recogni- tion to proxies held by officers, held irregularly adopted where a demand that the vote be taken according to risks was ignored, and the vote taken viva voce. lb. VII. Stock and Stockholders. While the vendor of stock is, for the purposes of the transfer thereof on the books of the corporation, to be regarded as the holder and owner of the stock, he is not the equitable owner and, therefore, can have no standing in a court of equity to enforce equitable rights appur- tenant only to the beneficial ownership of the stock. Scanlan v. Snow, 2 App. D. C. 137; 22 W. L. R. 62. The administratrix of a stockholder may maintain a bill in equity to set aside a deed of the corporation, made during the lifetime of decedent, for irregularity and fraud, if such stockholder was not con- sulted in the making of the deed and had no notice of the meeting at which it was authorized. lb. Entries in the books of a corporation are not per' se evidence sufficient to charge an alleged subscriber as a stockholder of the corporation ; though if it be established that the party charged is a member of the corporation such entries made in the regular course of business would be admissible against him to show the amount of stock sub- scribed for, the amount due thereon, and when calls for payments were made. National Express & T. Co. v. Morris, 15 App. D. C. 262; 27 W. L. R. 690. In a suit to recover on a subscription to the capital stock of the plaintiff corporation there must be proof, legal and competent, to es- Corporations. 239 tablish the existence of a contract of subscription to tlie stock; and while such contract may be shown to exist without formal subscription in writing, the evidence must be such as to establish the legal existence of a binding contract for the stock. lb. Members of a foreign savings and loan company held not to be stock- holders of such corporation but creditors entitled to bring suit against it in this jurisdiction. Barley v. Gittings, 15 App. D. C. 437 ; 27 W. L. R. 803. The liabihty of a subscriber for the capital stock of a corporation is several and not joint, and creditors of an insolvent corporation can not in a single suit enforce against a number of the subscribers to its capital stock a liability for the unpaid portion of their subscriptions. People's Nat. Bank v. Saville, 25 App. D. C. 139 ; 33 W. L. R. 178. There is, in such a case, no such common interest as the law recog- nizes as a good ground for the prevention of multiplicity of suits. lb. As to running of limitations to suit by assignee of insolvent corpora- tion to recover unpaid subscriptions to stock. See Glenn v. Sothoron, 4 App. D. C. 125; 22 W. L. R. 649. In a suit by the assignee of an insolvent corporation brought against an administratrix to recover on unpaid subscriptions to stock made by decedent, plene adminisWavit is a proper plea where the estate has been wholly and properly distributed. lb. As to effect of residence of stockholders on right to sue foreign corporation in this District. See Ambler v. Archer, l^App. D. C. 94; 31 W. L. R. 600. As to rights of tranferee of pledges of stock. See Nat. Safe Deposit Co. V. Gray, 12 App. D. C. 276; 26 W. L. R. 179. VIII. Powers as Respects Members. The action of an incorporated society in expelling a member will not be interfered with by the courts where the procedure provided by the by-laws has been duly followed. Bryant v. Dental Society, 26 App. D. C. 461; 34 W. L. R. 19. An incorporated society formed for the advancement of the dental profession and social intercourse, has the power to determine whether an act charged against a member is unprofessional within the meaning of its by-laws; and its determination can be reviewed by the courts only when it is clearly shown that it was ultra vires or contrary to good faith. lb. A member of an incorporated social club charged with an offense against his corporate duty can only be tried by the constituted corporate authorities, under the by-law applicable; and where such trial is regularly conducted and the judgment arrived at is in good faith the courts may not interfere therewith. De Yturbide v. Metropolitan Club, 11 App. D. C. 180; 25 W. L. R. 463. IX. Power to Make and Validity of By-Laws. Where the by-laws of a corporation provide that the annual meet- ing shall be held at a certain time, the fact that through neglect, for- getfulness or otherwise, it was not so held will not prevent its being 240 Corporations. held at a later, time, or invalidate a corporate act authorized at such meeting. Scanlan v. Snow, 2 App. D. C. 137; 22 W. L. R. fi2. In the absence of a by-law prescribing the time and manne- for alter- ing or amending the by-laws, a majority of the stockholders can make the change at any corporate meeting. lb. A court of equity can interpret the meaning of the by-laws of a cor- poration, but cannot make them, and is not justified m inserting the word "by-laws" in lieu of "constitution" where the use of the latter word makes a provision of the by-law meaningless. lb. All by-laws, and all alterations and amendments thereof, must be reasonable in order to be valid ; and whether or not they are reasonable is a question of law for the court under the facts and circumstances of the particular case. Johnson v. Walker, 28 W. L. R. 187. A corporation formed for the advancement of the dental profession and promotion of social intercourse and kindly feeling among its mem- bers has the right, even in the absence of express statutory authority, to make by-laws and to exercise the power of amotion. Bryant v. Dental Society, 26 App. D. C. 461; 34 W. L. R. 19; De Yturbide v. Metropolitan Club, 11 App. D. C. 180; 25 W. L. R. 463. The existence of a valid by-law may be established by usage. Walker V. Johnson, 17 App. D. C. 144; 28 W. L. R. 768. X. Powers in General. The extension of business by corporations authorized by § 633 of D. C. Code, fontemplates the taking in of something cognate to the business for which the company was originally incorporated. Dancy V. Clark, 24 App. D. C. 487; 33 W. L. R. 18. For the limitations of the powers and objects of a corporation the courts must look to its charter and not elsewhere. Colbert v. Speer, 24 App. D. C. 187; 32 W. L. R. 678. Power of National Bank to sell its stock on credit arid retain same as security. Brown v. Ohio Nat. Bank, 18 App. D. C. 598 ; 29 W. L. R. 819. The lease of its lines by a railroad company in the State of its crea- tion, to a foreign corporation, will not be recognized by the latter State where the charter of such foreign corporation prohibits it from operating or owning any railroad in the State in which it was incorporated. How- ard V. C. &■ O. R. R., 11 App. D. C. 300; 25 W. L. R. 750. The "trust fund" doctrine will not invalidate a sale of capital stock or property into which converted which has been made in good faith. Gilbert v. Endowment Assn., 10 App. D. C. 316 ; 25 W. L. R. 149. XI. Ultra Vires. As to equitable relief to enforce contract of corporation which is in contravention of the law under which it was organized. See Ambler v. Archer, 1 App. D. C. 94; 21 W. L. R. 600. As to application of doctrine of ultra vires. See Chesapeake & Ohio Ry. Co. V. Howard, 14 App. D. C. 262 ; 27 W. L. R. 146. The indorsement of a note by a corporation, ultra zires, passes the property therein. Willard v. Crook, 21 App. D. C. 237 ; 31 W. L. R. 177. Whether or not an ordinary trading corporation has implied power to indorse negotiable paper for accommodation merely, the defense of ultra Corporations. 241 vires is not available where the party acting upon the faith of the indorse- ment had no notice of the fact. lb. XII. Reorganization. The rights of a judgment creditor of a corporation are not affected by a reorganization thereof and transfer of assets to such new corpora- tion. Weightman v. Critic Co., 4 App. D. C. 136; 23 W. L. R. 665. XIII. Consolidation. Statutory authority to one corporation to purchase the property and franchises of another corporation, with appropriate action thereunder by the corporations to be affected, can not, of itself and without further provision of some kind, operate to effect a consolidation of the two com- panies, so as to charge the purchaser company in law with the liabilities of the vendor ; nor could such purchaser be held liable in the action under a provision in the contract of purchase that it should assume and dis- charge all obligations and liabilities whatsoever of the vendor; since an action at law could not be maintained by a third party on such cov- enant. Capital Traction Co. v. Oifut, 17 App. D. C. 292 ; 29 W. L. R. 18. XIV. Dissolution. A corporation does not cease to exist through the discontinuance of its business merely, through ceasing to maintain its active organization, or by becoming hopelessly insolvent, fields v. United States, 27 App. D. C. 433; 34 W. L. R. 383. Irregularities and informalities by the trustees in the conduct of the affairs of an incorporated educational institution will not dissolve the corporation, and can not be considered in a proceeding to determine the validity of a gift to the corporation. Speer v. Colbert, 31 W. L. R. 630. Charter not abrogated or annulled by failure to pay license tax. A legal proceeding by way of. quo warranto or other equivalent process re- quired to vacate charter. Ohio Natl. Bank v. Construction Co., 17 App. D. C. 524; 39 W. L. R. 107. The right reserved in an act of incorporation to alter, amend or re- peal, does not confer upon Congress the power to declare a legislative forfeiture or to enact a legislative judgment. Such judgment would be void as depriving defendant of property without due process of law. United States v. Metropolitan R. R., 21 W. L. R. 787. XV. Foreign. The grantee in a deed of trust, a foreign corporation, having under its charter power to execute the trust contained in such deed, the fact that the laws of the District did not authorize the organization of corpora- tions with such powers, will not prevent it from executing the trust in this District. Eastern Trust, Etc., Co. v. Willis, 6 App. D. C. 375 ; 23 W. L. R. 417. As to whether the general rule relative to the exercise of jurisdiction in a controversy involving the internal affairs of a foreign corporation, applies to the case of an association which, for convenience or some ulterior purpose, obtains a certificate in another State and then immedi- ately migrates to this jurisdiction, effects its organization, carries on its 242 Corporations. corporate as well as other business, and keeps its books, papers and records here. See Barley v. Gittings, 15 App. D. C. 427 ; 27 W. L. R. 802. As to power of courts to appoint receivers for property within the Dis- trict of Columbia belonging to foreign corporations. lb. As to interference by courts to direct, control or revise the corporate action of a foreign corporation. See Clark r. Mutual Reserve Fund Life Assn., 14 App. D. C. 154; 27 W. L. R. 114. A foreign corporation, publishing a daily newspaper in the city of New York, also carried on the business of a press association. It main- tained a permanent office in this District with a large force of employes. The manager of the office, who was also its Washington correspondent, made direct delivery of copies of news reports collected by him to certain papers contracting with defendant for the service, the cost of making the copies being paid to him and used in part payment of the expenses of the local office. Held, that the corporation was "doing business in this Dis- trict," within the meaning of § 1537, Code D. C, and that in an action against the corporation for libel, service of process on the manager of the local office was effectual to bring the defendant before the court. Rick- etts V. Sun Printing &■ Pub. Co., 27 App. D. C. 222; 34 W. L. R. 287. Where process against a foreign corporation is returned "Served the Co. by service on agent," the fact that the corporation was doing busi- ness in the District, the agency of the party served presumed and the return held sufficient. Howard v. C. & O. R. R., 11 App. D. C. 300; 25 W. L. R. 750. A decree of a court of another jurisdiction appointing receivers of a corporation doing business in this District, does not operate as a transfer of the property of the corporation situated here or discontinuance of its resident office, and service of process upon its local agent is sufficient vifhere he continues in charge of the office, although employed by the receiver. lb. ^^"hether, in respect merely of its business of furnishing telephone service, a foreign corporation, by maintaining an office in the District of Colum- bia upon sufferance — a mere occupant at will, without the protection of contract or vested right — may either be expelled or permitted to remain upon any conditions whatever, at the will or pleasure of Congress. Man- ning V. Telephone Co., 18 App. D. C. 191; 29 W. L. R. 342. Sec. 669, Code D. C, providing that cemetery companies incorporated under its laws may take and hold real estate and personal property, and use the income thereof for the care of cemetery lots, monuments, etc., the right of a corporation under the laws of New York, which by its charter is given similar powers, to take a devise of land in this District for such purposes, will, upon principles of comity, be recognized and up- held. Inglehart v. Inglehart, 26 App. D. C. 209; 33 W. L. R. 711; af- firmed in 204 U. S. 478. As to maintenance of action by foreign corporation against two other foreign corporations as principal and surety, the latter having a resident agent in this District. See Guilford Granite Co. v. Harrison Co., 23 App. D. C. 1 ; 31 W. L. R. 758. A foreign corporation is not subject to suit and to a general account- ability in this District; and the fact that some of its directors or stock- Corporations. 243 holders reside here is immaterial, where it is not shown that they have authority to represent and answer for the corporation. Ambler v. Archer, 1 App. D. C. 94; 31 W. L. R. 600. As to what constitutes a foreign corporation subject to attachment. See Barbour v. Paige Hotel Co., 3 App. D. C. 174; 22 W. L. R. 33. As to sufficiency of plea in abatement to action by foreign corporation, grounded on want of corporate capacity. See Stone v. Ches. &• C. In- vestment Co., 15 App. D. C. 585 ; 28 W. L. R. 137. Validity of devise in trust to. Inglehat't v. Inglehart, 26 App. D. C. 209; 33 W. L. R. 711; affirmed in 304 U. S. 478. XVI. In General. One who deals with a corporation by taking its note and securities securing payment thereof, is estopped to thereafter deny its corporate capacity. Ohio Natl. Bank v. Construction Co., 17 App. D. C. 534; 29 W. L. R. 107. One corporation consisting of some of the members of another, has no standing in a court of equity to obtain redress for grievances committed against its members by such other corporation, when, as to such griev- ances, the corporations are strangers to one another. German Bvang. Soc. V. Prospect Hill Cemetery, 2 App. D. C. 310 ; 33 W. L. R. 122. One who, although an incorporator, is not a stockholder at the time of a suit brought by members of a corporation to set aside a deed of the corporation for fraud and irregularity, has no right to intervene and be made a party complainant. Scanlan v. Snow, 2 App. D. C. 137; 22 W. L. R. 62. A corporation cannot be regarded as an innocent purchaser where those who control it have knowledge of fraud by which the property was acquired. Clark v. Bradley Coal Co., 6 App. D. C. 437; 23 W. L- R. 419. Possession by a new corporation of property of an old corporation out of which it was formed is not sufficient to show title in the former as against creditors of the latter. Weightman v. Critic Co., 4 App. D. C. 136; 22 W. L. R. 665. A corporation may be held responsible in an action for the publication of a libel. Gas Light Co. v. Lansden, 173 U. S. 534, affirming 9 App. D. C. 508, on this point. A receiver of a corporation, appointed by order of court, cannot ques- tion the de facto status of such corporation. Fields v. United States. 27 App. D. C. 433 ; 34 W. L. R. 383. Proof that an association was a corporation may be properly made by evidence tending to show that it was de facto organized as a corporation and acted as such. lb. Contracts of a corporation relating to loans, supplies, royalties and services, are incidents of corporate existence and franchises, and persons contracting with a corporation in these particulars do so subject to its dissolution or termination of franchise. Manning v. Telephone Co., 18 App. D. C. 191; 29 W. L. R. 343. Whilst a corporation is an artificial person, having an entity separate and distinct from that of its stockholders, that doctrine will not bar an 244 Corporation Counsel — Correctionary Institutions. inquiry into whether the nominal corporation is merely a pretense raised for the purpose of acting as a mask behind which so-called stockholders and officers may, with impunity, perpetrate frauds upon the public and the courts and work wrong, without remedy, upon individuals. Chesa- peake & Ohio Ry. Co. v. Howard, 14 App. D. C. 362; 27 W. L. R. 146. Mutual fire insurance company held a business or trading association as distinguished from those that are eleemosynary. Walker v. Johnson, 17 App. D. C. 144 ; 28 W. L. R. 768. The provision of the general incorporation laws prohibiting the use of any of the funds of a corporation organized thereunder in the purchase of stock of other corporations, defines a policy which should be strictly upheld. Ambler v. Archer, 1 App. D. C. 94; 21 W. L. R. 600. That articles are owned by a corporation will not exempt them from seizure and detention for purposes of evidence where they are in the possession of parties charged with crime and allowed to be used for an illegal purpose by the alleged owners, especially where the accused them- selves compose the corporation. Mutual Commission Co. v. Moore, 13 App. D. C. 78; 26 W. L. R. 431. A corporation claiming a monopoly must maintain its claim by grant in unmistakable terms, or by an implication equally clear. Potomac Blec. Power Co. v. U. S. Electric Light Co., 36 W. L. R. 19. The consolidation of certain causes having for their object the vacation of a transfer of the assets of one company to another, together with the intervention therein of certificate holders in the transferring company, held to have been virtually a proceeding to reach the assets of the in- solvent company, so that, upon a decree vacating the transfer, all certifi- cate holders in the transferring company were entitled to have their claims adjudicated in such suit. Gilbert v. Endowment Assn., 10 App. D. C. 316; 35 W. L. R. 149. As to law governing assignment for the benefit of creditors made in a foreign jurisdiction by a corporation having its assets and place of busi- ness in the District. See Kansas City Packing Co. v. Hooi'er, 1 App. D. C. 368; 21 W. L. R. 710. As to right of holder of bonds of corporation to intervene in suit for foreclosure of trust securing same. See Parsoni v. Little, 28 App. D. C. 318; 35 W. L. R. 46. Devise to incorporated institution of learning creating a special chari- table trust. Columbian University v. Taylor, 35 App. D. C. 134; 33 W. L. R. 181. See, also. Insurance; Joint Stock Companies; Municipal Corpora- tions ; Receivers ; Sectarian Institutions. CORPORATION COUNSEL. Prosecutions in Juvenile Court to be on information by corporation counsel. Moss v. United States, 35 W. L. R. 179. As to validity of information filed by a special assistant attorney. See Lasley v. Dis. of Col., 14 App. D. C. 407; 37 W. L. R. 324. CORRECTIONARY INSTITUTIONS. See Refqrm Schooi, for GlRI,S. Correspondence Colleges — Costs. 245 CORRESPONDENCE COLLEGES. See Mails. CORRUPTION OF JURORS. As to the admissibility on a second trial -of a criminal case of evidence of an attempt by accused, at the first trial, to corrupt a juror. See Gas- senheimer v. United States, 26 App. D. C. 432 ; 34 W. L. R. 80. COSTS. I. Discretion as to Allowance. II. Mistake and Correction. III. Security for. IV. On Appeal. V. In General. I. Discretion as to Allowance. Costs in the Probate Court are discretionary; and a decree of that court which is silent on the question of costs in effect denies them. Thorn v. Thorn, 35 W. L. R- 388. The matter of costs in the Probate Court is mainly in the discretion of that court, although it may be incidentally noticed on appeal, but not where it does not appear that the question was raised below. Baton v. Brown, 20 App. D. C. 454; 30 W. L. R. 746. Award of costs is discretionary with the trial court and no appeal lies from the exercise of that discretion. United Security Co. v. Lamer, 18 App. D. C. 147; 29 W. L. R. 275. The award of costs in a proceeding in equity is a matter of sound discretion, the exercise of which, as in other cases of that nature, will not be disturbed save in plain cases of its abuse. Smith v. Olcott, 19 App. D. C. 61; 29 W. L. R. 766. Trial court in divorce case may require husband to advance to wife the costs of an appeal. Morgan v. Morgan, 25 App. D. C. 389 ; 33 W. L. R. 409. A plaintiff recovering any sum before a justice of the peace is entitled to his costs, under the Statute of Gloucester; but on appeal from a judg- ment of a justice of the peace to the Supreme Court of the District it is in the discretion of the court to award costs as may seem equitable and just, and under § 983, R. S. U. S., this discretion of the court is to be exercised in determining who is the prevailing party on the appeal. Cassidy v. Roberts, 29 W. L. R. 76. When question of allowance of costs by the trial court will be noticed on appeal. See Fifth Congregational Church v. Bright, 28 App. D. C. 229; 34 W. L. R. 718. II. Mistake and Correction. Costs are not an essential part but only an incident of a judgment and a mistake in calculation may be corrected upon motion or sugges- tion. Adriance, PUtt & Co. v. Heiskell, 8 App. D. C. 240; 24 W. L. R. 317. As to correction of ^. fa. in respect of the amount of costs recoverable. See Adriance, Piatt & Co. v. Heiskell, 8 App. D. C. 240; 24 W. L. R 217. As to effect on validity of £. fa. of reduction of costs from the amount stated therein. See lb. 246 Costs. Remedy for correction of error in taxation of. See Williams v. Getz, 17 App. D. C. 388; 29 W. L. R. 54. III. Security for. A person temporarily residing in this District is a non-resident within meaning of § 175 of Code, relative to security for costs. Bottineau v. O'Grady, 34 W. L. R. 148. As to what constitutes a suit by a non-resident under § 1002 R. S. D. C. See Bond v. Carter Hardzvare Co., 15 App. D. C. 72 ; 27 W. L. R. 462. As to action by defendant in a suit by a non-resident before a justice of the peace amounting to a waiver of the statutory requirement as to se- curity for costs. See Guarantee Sav., L. & I. Co. v. Pendleton, 14 App. D. C. 384; 27 W. L. R. 233. As to waiver of requirement relative to security to be given by non- resident plaintiff. See Costello v. Palmer, 20 App. D. C. 210; 30 W. L. R. 402. One demanding a jury trial before a justice of the peace is not required to give security for the costs of such trial. Hill v. Neale, 27 W. L. R. 235. Security for costs to be given by non-resident before suit in justice's court. Guarantee Sav., L. Sf I. Co. v. Pendleton, 14 App. D. C.l 384: 27 W. L. R. 233. As to security for costs to be given by non-resident plaintiff in justice's court and on appeal. See Hayward v. Tschiffely, 32 W. L. R- 777. Where, during the pendency of suits in equity to establish liens upon a fund in court, petitions to intervene were filed, held, that intervenors should be required to give security for costs as a condition precedent to their right to intervene. Butler v. Strong, 3 App. D. C. 80; 22 W. L. R. 272. The fact that the defendants in a suit in equity appear without being served with process is not a waiver of their right to require security for costs ; nor is such right waived by the fact of defendant's appearing, demurring and answering before requiring it ; nor by the fact that, upon hearing on demurrer, costs were adjudged against them, but not paid. Bottineau v. O'Grady, 34 W. L. R. 148. Bond for costs not required where supersedeas bond given. Dancy v. Clark, 24 App. D. C. 487; 33 W. L. R. 18. IV. On Appeal. In cases transferred to the Court of Appeals from the Court in General Term, the question of costs should be governed to some extent by the rules in force with regard to appeals in the latter court. Palmer v. Fleming, 5 App. D. C. 365 ; 23 W. L. R. 122. Where an appellant has voluntarily incurred costs in the printing of a more voluminous record than was required by the rules of the Court in General Term, from which the case was transferred to the Court of Appeals, the latter court will not require one of two defendants to pay one-third of the cost of printing such record, especially where it is im- possible to segregate such portions of the record as appertain to the con- troversy with the defendant sought to be charged and those appertaining to the controversy with the other defendant. lb. Costs. ^47 Where the original record on appeal is sufficiently full, the costs of certiorari, including transcript fees and charge for printing, will be taxed against the appellee, even though the decree appealed from be reversed. McLane v. Cropper, 5 App. D. C. 276; 23 W. L. R. 115. A successful appellant will not necessarily be entitled to costs which have been unduly enhanced by unnecessary matter in the record. Balto. &■ Pot. R. R. Co. V. Fitzgerald, 2 App. D. C. 501; 22 W. L. R. 217; Balto. & Pot. R. R. Co. v. Walker, 2 App. D. C. 521 ; 22 W. L. R. 223. Where a record on appeal was unnecessarily extended by appellants, held, that the cost of printing be equally shared by the parties, even though the judgment w^is reversed. Barbour z\ Moore, 4 App D. C. 535; 22 W. L. R. 792. As to costs of additional transcript of record where certiorar', is granted to bring up omitted matter. See Davis v. Harper, 14 App. D. C. 298; 27 W. L. R. 156. On appeal, where bill of exceptions does not comply with rule of court as to its preparation. Brown v. Commeitial Pire Ins. Co., 21 App. D. C. 325; 31 W. L. R. 206. On several appeals from a decree ratifying an auditor's report, where it was difficult to apportion costs so as to fix them upon those who were really the losing parties, they were directed to be paid out of the fund which was the subject of the auditor's report, in a manner not to affect the claims held by the appellate court to be entitled to priority. Alfred Richards Brick Co. v. Rothivell, 19 App. D. C. 178 ; 29 W. L. R. 842. As to cost of printing transcript of record on appeal where several ap- peals from same decree. See Zeust v. Staff an, 13 App. D. C. 388 ; 26 W. L. R. 695. Where a decree of the Probate Court ratifying and confirming a re- port of the auditor on a question of domicil, was silent upon the ques- tion of costs, and the decree was affirmed on appeal, an application made two years after the decree was entered, to tax the costs of the hearing before the auditor against the unsuccessful party, denied. Thorn v. Thorn, 35 W. L. R. 388. The Court of Appeals has no power or jurisdiction to award costs, or to execute any judgment therefor that might be entered in cases of . appeals from the Commissioner of Patents. Wells v. Reynolds, 5 App. D. C. 20. Where there is a judgment against defendant before a justice of the peace, and he offers to pay a part thereof and costs to that time, and plaintiff declines the offer, and on appeal the judgment is reduced to or below the sum offered, the defendant is the prevailing party and entitled to costs in the appellate court; but where he makes no offer and contests the whole matter in the appellate court, he is not the prevailing party if plaintiff recovers a substantial sum. If, however, on appeal by defendant from a judgment against him for a substantial siim the plaintiff recovers only a nominal sum, defendant is the prevaiing party and entitled to costs in the appellate court. Cassidy v. Roberts, 29 W. L. R. 76. Where plaintiff recovered a jud|ptnent for $161 before the justice of the peace, which on appeal was reduced to oije cent, defendant was the pre- vailing party and entitled to his costs on the appeal, plaintiff being enti- 248 Costs. tied to his costs before the justice; but where plaintii¥ before the justice recovered a judgment for $25.75, but defendant made no offer and con- tested the entire amount, and on appeal the judgment was reduced to $10.57, plaintiff was entitled to his costs on the appeal and before the justice. lb. A deposit for costs of appeal, made by attorney for appellant out of his own funds, cannot be subjected to satisfaction of judgment appealed from on dismissal of the appeal, where such deposit was expressly made not to operate as a supersedeas. Mitchell v. Bvans, 18 App. D. C. 254 ; 29 W. L. R. 399. As to liability for costs on appeal of District of Columbia and Com- missioners. See Brown v. Macfairland, 22 App'. D. C. 412 ; 31 W. L. R. 541. As to payment of costs of appeal where the decree appealed from is affirmed in part and modified in part. See Clerks' Investment Co. v. Sydnor, 19 App. D. C. 89; 30 W. L. R. 6. An application by a trustee appellant for allowance of costs and counsel fees, where the decree appealed from was affirmed, denied. May v. May, 5 App. D. C. 552; 23 W. L. R. 198. The application of § 828, Rev. St. D. C. as to exclusion of costs from a judgment where the recovery is for less than the jurisdictional amount is only to original actions and not to appeals from justices of the peace. Cassidy v. Roberts, 29 W. L. R. 76. As to allowance of costs of appeal. See Columbia Sand Dredging Co. in an action against the administrator on a contract of his intestate. See Tuohy V. Trail, 19 App. D. C. 79 ; 30 W. L. R. 3. As to allowance of costs of appeal. See Columbian Sand Dredging Co. V. Morton, 28 App. D. C. 288; 34 W. L. R. 766; Leonard v. Brewing Co., 25 App. D. C. 161; 33 W. L. R. 211. V. In General. As to right of justice of the peace to refuse a defendant a jury trial because of his refusal to advance the costs of the jury. See Killmon v. Ph^fle, 28 W. L. R. 209. As to charging trustee with costs of suit brought to compel a con- veyance by him to his cestui que trust. See Pitzgerald v. Wynne, 1 App. D. C. 107; 21 W. L. R. 611. Where a peremptory writ of mandamus is awarded against a pubHc officer to compel the performance of a ministerial duty, the costs will be awarded against the defendant. Roberts v. United States, 13 App. D. C. 38; 26 W. L. R. 375. As to what subject to cost of administration of estates of decedents. See Nash v. Ober, 2 App. D. C. 304; 22 W. L. R- 92. As to time of allowance by orphans' court. See Tuohy v. Hanlon, 18 App. D. C. 225 ; 29 W. L. R. 417. Allowance to executor of costs incurred in unsuccessfully defending will. lb. The successful party in a civil suit is entitled to have the traveling expenses of a necessary non-resident witness taxed as costs, at the rate of five cents a mile. Construing the act of Congress of Feb. 28, 1799; Counsel Fh;h;s. 249 § 848 Rev. Stat., and § 880, R. S. D. C. Wash. & G. R. R. Co. v. American Car Co., 5 App. D. C. 524; 23 W. L. R. 241. As to allowance of costs on withdrawal of juror. See Jackson v. Emmons, 13 App. D. C. 269; 26 W. L. R. 674. A wife held not entitled to an order requiring husband to advance to her a sum for costs pending an appeal in divorce proceedings where there was no proof that appellee was herself unable to advance the necessary money. Bernsdorff v. Bernsdorff, 26 App. D. C. 228 ; 33 W. L. R. 775. As to application of reservation in Par. 3 of Rule 18 of Court of Ap- peals relative to allowance of costs. See Brown v. Macfarland, 22 App. D. C. 412 ; 31 W. L. R. 541. Recovery of costs by libellant in suit to recover for salvage services. James Clark Co. v. ferryboat Columbia, 26 App. D. C. 85 ; 33 W. L. R. 519. A provision in a judgment that the costs awarded were to be taxed by the clferk does not affect its finality. Clark v. Barber, 21 App. D. C. 274; 31 W. L. R. 94. See also Actions ; Appeai, and Error ; Patents ; Practice and Pro- cedure. COUNSEL FEES. As to charging decedent's estate with counsel fees incurred in defend- ing will. See Mclntire v. Mclntire, 14 App. D. C. 337 ; 27 W. L. R. 198 ; S. C. 192 U. S. 116; 32 W. L. R. 54. Tuohy v. Hanlon, 18 App. D. C. 225; 29 W. L. R. 417. Pritchard's Estate, 30 W. I,. R. 9. Hamilton v. Shillington, 19 App. D. C. 268 ; 30 W. L. R. 39. Counsel fees paid upon petition of certain legatees, held, chargeable against legatees in distribution of estate. Mclntire v. Mclntire, 192 U. S. 116; 32 W. L. R. 54. As to jurisdiction of Probate Court to direct collectors of an estate to pay to counsel employed by the executor, whose good faith is attacked, a retaining fee. See Kengla v. Randall, 23 App. D. C. 463; 31 W. L. R. 695. As to power of courts of equity to allow counsel fees in suit for main- tenance by a deserted wife. See Lesh v. Lesh, 21 App. D. C. 475 ; 31 W. L. R. 288. In a suit for maintenance, where the costs of appeal had to be paid by appellant husband, which costs had been increased by the taking of a considerable amount of irrelevant and unnecessary testimony, the al- lowance of additional attorney's fees was refused appellee. Bernsdorff v. Bernsdorff, 26 App. D. C. 520; 34 W. L. R. 564. Denial of application by wife for order requiring husband to advance a sum for counsel fees and expenses pending an appeal by wife in divorce proceeding. Bernsdorff v. Bernsdorff, 26 App. D. C. 228; 33 W. L. R. 775. Requiring appellant in divorce proceedings to pay wife her necessary expenses on appeal. Lane v. Lane, 26 App. D. C. 235 ; 33 W. L. R. 775. As to allowance of counsel fees in suit for permanent alimony. See Tolman v. Tolman, 1 App. D. C. 399 ; 21 W. L. R. 771. 250 Courts. As to allowance to receiver. See Cake v. Woodbury, 3 App. D. C. 60; 22 W. L. R. 236. As to recovery of counsel fees incurred in defending proceedings for enforcement of mechanics' lien, in action on bond of contractor. Donovan V. Johnson, 13 App. D. C. 356; 26 W. L. R. 714. A trust fund will not be charged with counsel fees unless the solicitor or his client has contributed to the due and proper administration of the trust for a common benefit. Bohrer v. Otterback, 2 App. D. C. 78; 22 W. L. R. 54. The decision of the Commissioner of Pensions whether or not an at- torney for a claimant can contract for a fee for his services, cannot be controlled by mandamus. Phillips v. Hitchcock, 19 App. D. C. 237; 30 W. L. R. 45. See, also, Alimony; Divorcs; Attachment and Garnishment; Prac- tice AND Procedure. COURTS. I. Supreme Court of the United States. 'II. Court of Appeals. III. Supreme Court of the District of Columbia. IV. Police Court. V. Juvenile Court. VI. Justices of the Peace. VII. Court of Claims. VIII. Courts Martial. IX. Ecclesiastical Courts. X. Probate and Orphans' Courts. XI. Equity Courts. XII. Criminal Courts. XIII. Status as Courts of United States. XIV. Powers and Duties Generally. XV. Discretionary Powers. XVI. Interference with Executive Officers. XVII. Interference with Legislative Department. XVIII. Judicial Notice. XIX. Comity. XX. In General. I. Supreme Court of the United States. The Supreme Court of the United States is without jurisdiction to re- view, on writ of error, a judgment of the Court of Appeals of the District in a criminal case. Chapman v. United States, 164 U. S. 436; 24 W. L. R. 797. The Supreme Court of the United States is without jurisdiction to re- view, on writ of error, a judgment of the Court of Appeals of the Dis- trict concerning the custody of infants. Perrine v. Slack, 164 U. S. 452; 24 W. L. R. 814. As to what constitutes a final judgment or decree of the Court of Ap- peals to give the Supreme Court jurisdiction on appeal or writ of error. See Macfarland v. Brown, 187 U. S. 239 ; 80 W. L. R. 838. The Supreme Court of the United States has jurisdiction of a case in- volving the construction of an act of the Legislative Assembly and an act of Congress, although the jurisdictional amount is not involved. Parsons v. Dis. of Col., 170 U. S. 45. Courts. 251 II. Court of Appeals. The Court of Appeals has power under the act of Feb. 9, 1893, to issue a writ of prohibition to prohibit the Supreme Court of the District from exercising a power which is unlawful and the exercise of which might result in injury for which there is no other adequate remedy. In re Mac- farland et al, 36 W. L. R. 114. The Court of Appeals having appellate jurisdiction over the orders, etc., of the lower courts of the District, it is not necessary that an attempt shall have been made to invoke that jurisdiction before it can be said to attach in order to authorize the issue of a remedial writ in aid thereof. lb. This court has power under the act of Feb. 9, 1893, to hear and de- termine causes pending on the date of that act in the General Term of the Supreme Court of the District upon certification from its special terms for hearing in the first instance. Ambler v. Archer, 1 App. D. C. 94 ; 21 W. L. R. 600. This court is without power to reverse a judgment and set aside a verdict on the ground that the verdict was against the weight of the evi- dence. Barbour v. Moore, 10 App. D. C. 30; 35 W. L. R. 55. As to power in cases transferred from General Term under act of 1893, to review decisions of special terms upon motions for new trial based on question of sufficiency and weight of evidence. See Evans v. Schoon- maker, 2 App. D. C. 62; 22 W. L. R. 78. Gleeson v. Virginia Mid. R. R. Co., 1 App. D. C. 185 ; 21 W. L. R. 667. The Court of Appeals will not question decisions of the General Terms of the Supreme Court, D C, on questions of practice. Tozuers (Hutch- ins) V. Maneely, 11 App. D. C. 88; 25 W. L. R. 487. As to power to allow special appeals from interlocutory orders. See Commercial Nat. Bank v. Brewing Co., 16 App. D. C. 186 ; 28 W. L. R. 320. As to the nature of interlocutory order from which appeal will lie to this court under the act of Feb. 9, 1893. See In re Walter, 1 App. D. C. 189 ; 21 W. L. R. 638. The jurisdiction of this court on appeal in habeas corpus cases is not dependent upon §§ 783 and 764, R. S. U. S., but is conferred in ample terms by the statute which created this court. Costello v. Palmer, 20 App. D. C. 210; 30 W. L". R. 402. The Court of Appeals has ample authority, under the statute creating it, to frame rules to limit the time in which appeals may be taken from decisions of the Commissioner of Patents; and Rule 22 of the court is a valid and appropriate one and binding alike upon court and parties. Hien v. Fungs, 9 App. D. C. 492 ; 25 W. L. R. 8. This court has no appellate jurisdiction over the police court, and has no right to issue any writ to it Jor any purpose. Ex parte Dries, 3 App. D. C. 165; 22 W. L. R. 301. This court has no power to grant a petition to prosecute an appeal in forma pauperis. Ex parte Harlow, 3 App. D. C. 203. There is no power in the Court of Appeals, by certiorari or otherwise, to correct imperfections or misstatements alleged to exist in a bill of ex- 252 Courts. ceptions taken and certified to this court. Keely v. Moore, 22 App. D. C. 1; 31 W. L. R. 290. As to jurisdiction under § 226 of Code. See Chappell v. O'Brien, 23 App. D. C. 190; 31 W. L. R. 459. As to power of Court of Appeals, of its own motion, to disregard im- properly prepared bill of exceptions. See Dist. of Col. v. Praser, 21 App. D. C. 154; 31 W. L. R. 83. The Court of Appeals has no power or jurisdiction to award costs, or to execute any judgment therefor that might be entered in cases of ap- peals from the Commissioner of Patents. Wells v. Reynolds, 5 App. D. C. 20. Power of appellate court pending an appeal in a divorce proceeding to require payment by husband to wife of sum for counsel fees and ex- penses. Lane v. Lane, 26 App. D. C. 235; 33 W. L. R. 775. As to power of appellate court in respect of penalties imposed by the trial court. See Raymond v. United States, 26 App. D. C. 250; 34 W. L. R. 562. III. Supreme Court of the District of Columbia. The Supreme Court of the District is a court of general jurisdiction, with terms fixed by law of which this court is bound to take notice; and it is not necessary to the legality of the session of its several branches that the minutes recite the appearance of the clerk and marshal at the opening of the term, or that the sitting was in the District and in the building designated therefor, regularity in these respects being presumed. Lanckton v. United States, 18 App. D. C. 348 ; 29 W. L. R. 494. The January term of the Supreme Court of the District begins on the first Tuesday of that month. The effect of that day being a legal holiday is not to prolong the preceding term to the following Tuesday and post- pone the commencement of the January term to that day, but only to the day following such holiday; hence a motion to prolong the October term made after Jan. 1 comes too late. Gordon v. Randle, 189 U. S. 417. The Supreme Court of the District of Columbia, under the statutes empowering it to make rules of practice, had power to make and prescribe the Seventy-third Rule. Smoot v. Rittenhouse, 27 W. L. R. 741. The chief justice of the Supreme Court of this District is charged with the same duties in extradition proceedings as are imposed upon governors of States. Hayes v. Palmer, 21 App. D. C. 450 ; 31 W. L. R. 271. Supreme Court of District of Columbia sitting as a district court of the United States has same jurisdiction as a prize court as other district courts of the United States. United States v. Sampson, 19 App. D. C. 419. Under the act of June 7, 1878, and §§ 996 and 1031, R. S. D. C, the Supreme Court of the District has general supervision of the conduct of justices of the peace. Pidelity & Deposit Co. v. Beck, 12 App. D. C. 237; 26 W. L. R. 104. The Supreme Court has power to direct mandamus to issue to a jus- tice of the peace to require him to consider the suflSciency of an appeal bond, and if found sufficient to approve the same. Church v. Pidelity & Dep. Co., 13 App. D. C. 264; 26 W. L. R. 676. The Supreme Court of the District has the right, on a return to cer- Courts. 253 tiorari, to set aside the judgment of a justice of the peace for irregulari- ties resulting in injury to the plaintiff. Adriaans v. Johnson, 24 W. L. R. 581. Where an appellee in an appeal from a justice of the peace has not been served with summons, who appears specially for the purpose of objecting to the jurisdiction, it is not within the jurisdiction of the court to pass an order requiring him to appear and submit to the jurisdiction of the court or suffer a judgment by default. Slater v. Willige, 16 App. D. C. 364; 28 W. L. R. 454. As to jurisdiction of Supreme Court of District to render judgment by default against surety on undertaking on appeal from justice of the peace. See Tenney v. Taylor, 1 App. D. C. 223 ; 21 W, L. R. 649. The Supreme Court of the District of Columbia has power and jurisdic- tion to issue a scire facias and revive the judgment of a justice of the peace that has been filed and regularly docketed in that court under the provisions of § 1022 R. S. D. C. Green v. Mann, 19 App. D. C. 243 ; 30 W. L. R. 57. The concurrent jurisdiction of justices of the peace and the Supreme Court of the District does not extend to proceedings before a justice of the peace for unlawful detainer of real estate by a tenant as against his landlord, or by any other person in the category of those enumerated in § 20 of the Code. Brown v. Slater, 23 App. D. C. 51 ; 32 W. L. R. 18. A judgment of the Supreme Court of the District of Columbia rendered on appeal from a judgment of a justice of the peace in a suit against a married woman to recover certain witness fees alleged to be due the plaintiff for attending as a witness in an action at law, is not void for want of jurisdiction. Magruder "v. Armes, 15 App. D. C. 379 ; 27 W. L. R. 738. The Supreme Court of the District of Columbia possesses the general jurisdiction to award an injunction or a writ of mandamus against the highest officers of the Government in a proper case. Houghton v. Payne, 31 W. L. R. 178. As to power to compel, by mandamus, performance of ministerial duty by executive officers. See West v. Hitchcock, 19 App. D, C. 333; 30 W. L. R. 186. The Supreme Court of the District holding a circuit court held without jurisdiction of an action on a contract to pay money in instalments where less than $100, exclusive of interest, is due at the time of bringing suit. Mansfield v. Winter, 10 App. D. C. 549 ; 25 W. L. R. 270. The Supreme Court of the District has jurisdiction to grant alimony as permanent relief on a bill therefor which does not involve divorce. Tolman v. Tolman. l.App. D. C. 299; 21 W. L. R. 771. Shaw v. Shaw, 2 App. D; C. 204; 22 W. L. R. 77. The Supreme Court of the District, holding a special equity term, has jurisdiction to commit for contempt one disobeying an order for the payment of aUmony Tolman v. Leonard, 6 App. D. C. 224; 23 W. L. R. 343. The Supreme Court of the District has jurisdiction to entertain a pe- tition for a divorce (? mensa et thoro, that being synonymous with the 254 Courts. "legal separation" provided by § 966 of the Code. Maschauer v. Maschauer, 23 App. D. C. 87; 33 W. L. R. 66. As to jurisdiction of divorce proceedings. See Blandy v. Blandy, 20 App. D. C. 535; 30 W. L. R. 808. The Supreme Court of the District has jurisdiction to entertain a mo- tion to set aside a verdict and award a new trial on the ground that the verdict is against the weight of the evidence. Rapp v. Wash. & G. R. R. Co., 26 W. L. R. 210. As to jurisdiction to issue writ of habeas corpus in case of person re- strained of his liberty in a distant possession of the United States by an officer of the Navy. See McGowan v. Moody, 22 App. D. C. 148; 31 W. L. R. 371. As to jurisdiction of courts of this District to appoint receiver for local assets of a foreign corporation. See Barley v. Gittings, 15 App. D. C. 427; 27 W. L. R. 802. The special jurisdiction conferred on the Supreme Court of the District by the Act of Feb. 27, 1890, establishing Rock Creek Park, to hear and determine all matters connected with a special assessment authorized to be levied on adjoining lands for benefits accruing therefrom does not preclude recourse to equity in proper cases of equity cognizance, or take away the appellate jurisdiction of this court. Craighill v. Van Riswick, 8 App, D. C. 185 ; 24 W. L. R. 177. As to power to dismiss appeal. See Chisholm v. Cissell, 12 App. D. C. 180; 26 W. L. R. 122. The Supreme Court of this District, as a court of equity, has power and jurisdiction to assess the damages, on an undertaking executed under the provisions of Equity Rule 42 of that court, occasioned by the wrong- ful issuance of an injunction restraining the enforcement of executions on judgments against an insolvent debtor. Dodge v. Cohen, 14 App. D. C. 582; 27 W. L. R. 334. The Supreme Court of the District has jurisdiction and power to de- cree sale of real estate of a deceased debtor, whether the title be legal or equitable, for the payment of debts. Duncanson v. Manson, 3 App. D. C. 260 ; 22 W. L. R. 321. Affirmed in 166 U. S. 533. The Supreme Court of the District will not, in a proceeding by cer- tiorari, reweigh the evidence produced on trial before police trial board. Walsh V. Macfarland, 34 W. L. R. 78. The Supreme Court of the District is without jurisdiction to try and determine prosecutions under the act of Mar. 3, 1893, relating to the sale of intoxicating liquors. Gassenheimer v. Dist. of Col., 6 App. D. C. 108; 23 W. L. R. 257. The General Term has power to temporarily assign one of the justices of the court to hold a special term in place of the justice generally as- signed thereto ; and no formal revocation of the assignment of the latter is necessary. McLane v. Cropper, 6 App. D. C. 422; 23 W. L. R. 403. Where a justice is temporarily assigned to hold a special term in place of the justice generally assigned thereto, the annexation to such special assignment of a limitation of the power and authority of the justice so assigned, to certain specific duties, will not affect the validity of an act Courts. 255 of the justice within the scope of the authority conferred, even though such limitation were invalid. lb. The duty of the clerk of the Supreme Court D. C. to receive a declaration of intention to become naturalized is enforceable by man- damus. Opisso jj. Young, 31 W. L. R. 376. Jurisdiction by the Supreme Court of the District of Columbia of a suit by an attorney to appoint a receiver for a fund in the hands of the Treasurer of the United States on which he has a lien for services by contract with his client; the client, who is a non-resident, and the Treas- urer being made parties defendant. Roberts v. Consaul, 24 App. D. C. 551; 33 W. L. R. 98. The ruHng of a justice of the Supreme Court D. C. is binding upon an- other justice of the same court to whom is presented the same question between the same parties in another cause. Potomac Elec. Power Co. v. U. S. Blec. Light Co., 26 W. L. R. 19. The Supreme Court of the District is without power to determine whether a person confined in another jurisdiction is lawfully imprisoned or not. In re Johnson, 31 W. L. R. 212. The special term of the Supreme Court of the District of Columbia, known as the circuit court, is the tribunal in this District having jurisdic- tion to enforce the penalties prescribed for the violation by a railroad company of the provisions of the act of Congress of Mar. 2, 1893, and the several acts amendatory thereof, known as the "Safety Appliance Acts." United States v. Balto. &■ Ohio R. R. Co., 26 App. D. C. 581; 34 W. L. R. 143. As to salary to which retired justice entitled. See James v. United States, 202 U. S. 401. IV. Police Court. The police court of the District is not a constitutional court of the United States, and § 1042 Rev. Stat, relative to the discharge of poor con- victs has no application to sentences thereof. United States v. Mills, 11 App. D. C. 500; 26 W. L. R. 89. Under the Act of Congress of Mar. 3, 1891, Ch, 536, all the ordinances of the District relating to crimes and offenses furnish subjects for the exercise of jurisdiction by the police court. Defier v. Kimball, 7 App. D. C. 499 ; 24 W. L. R. 82. The police court has exclusive original jurisdiction of prosecutions under the act of March 3, 1893, relating to intoxicating liquors. Gassen- heimer v. Dist. of Col. 6 App. D. C. 108 ; 23 W. L. R. 257. The police court is without jurisdiction to try, convict and sentence one as a suspicious person. Stoutenburgh v. Frazier, 16 App. D. C. 229 ; 28 W. L. R. 256. In re Praser, 28 W. L. R. 39. In the hearing of an information for failure to remove a wall decided by the inspector of buildings to be dangerous, the police court has full power to decide the question of dangerous condition. Shoemaker v. Bntwisle, 3 App. D. C. 252; 22 W. L. R. 316. In the trial of an information for failure to remove a wall decided by the inspector of buildings to be dangerous, the judgment of the in- spector is not final and conclusive ; the notice to remove is only prima 2s6 Courts. facie evidence of the dangerous condition, which may be controverted by the owner; and it is the duty of the court to give judgment accord- ing to the weight of the evidence. Ih. The police court has power to hear and determine cases arising under the act of Jan. 26, 1887, ch. 46, regulating insurance and prescribing penalty for violations thereof. Ransdell v. Patterson, 1 App. D. C. 489; 21 W. L. R. 778. As to jurisdiction under act of Legislative Assembly of Aug. 23, 1871, relative to the stationing of flagmen at railroad crossings. See Smith v. Stoutenburgh, 8 App. D. C. 510; 24 W. L. R. 329. As to power to withhold or suspend sentence. See Harris v. Lang, 27 App. D. C. 84; 34 W. L. R. 176. As to continuance of terms. See lb. Harris v. Nixon, 27 App. D. C. 94; 34 W. L. R. 179. The Court of Appeals has no appellate jurisdiction over the police court, and has no right to issue any writ to it for any purpose. Bx parte Dries, 3 App. D. C. 165; 22 W. L. R. 301. While the police court of this District is a statutory tribunal of special and limited jurisdiction, its action in a given case can not be attacked collaterally where the proceedings in that court show upon their face that the court had acquired jurisdiction of the subject-matter and of the person charged, even though the proceedings may have been conducted erroneously. Latney v. United States, 18 App. D. C. 265; 29 W. L. R. 363. V. Juvenile Court. The Juvenile Court is without jurisdiction to compel reputed father of illegitimate child to support it. Moss v. United States, 35 W. L. R. 179. Prosecutions in the Juvenile Court are to be on information by the corporation counsel in the name of the United States or District of Co- lumbia, as the case may be. lb. A prosecution for failure to provide for a minor child, brought in the Juvenile Court, cannot be removed by certiorari into the Supreme Court D. C. on the ground of concurrent jurisdiction. United States v. Moss, 35 W. L. R. 36. VI. Justices of the Peace. Justices of the peace in the District of Columbia are not inferior courts of the United States. Capital Traction Co. v. Hof, 174 U. S. 1 ; 27 W. L. R. 262. While the court of the justice of the peace in this District is in a certain sense a court of the United States, it is not such a court as was con- templated in the Third Article of the Constitution. Brightwood Ry. Co. V. O'Neal, 10 App. D. C. 205; 25 W. L. R. 98. VII. Court of Claims. As to conclusiveness of judgments of. See Gray v. Dist. of Col., 1 App. D. C. 20; 21 W. L. R. 387. Interest does not run upon judgments of the Court of Claims, lb. Courts. 257 VIII. Courts Martial. As to effect on jurisdiction of the suing out of a writ of habeas corpus by the accused. See Closson v. Armes, 7 App. D. C. 460; 34 W. L. R. 71. IX. Ecclesiastical Courts. As to conclusiveness on civil courts of judgment of ecclesiastical court having jurisdiction of the subject-matter. See Satterlee v. Williams, 20 App. D. C. 393 ; 30 W. L. R. 694. As to right of civil courts to review a judgment of an ecclesiastical court deposing a priest from the ministry. Ih. X. Probate and Orphans' Courts. The orphans' court has no powers not expressly granted by the act of Maryland of 1798, Ch. 101, or which are necessarily or reasonably implied therefrom. Cook v. Speare, 13 App. D. C. 446; 26 W. L. R. 744. By §§ 116, 117, 119 of D. C. Code the probate court has substantially the same jurisdiction and powers of its predecessor, the orphans' court, which could exercise no powers other than those expressly granted or necessarily implied. Richardson v. Daggett, 24 App. D. C. 440; 33 W. L. R. 24. It is not the province of a probate court to construe a paper offered for probate as a will. Vestry of St. John's Parish v. Bostwick, 8 App. D. C. 453; 24 W. L. R. 310. i The probate court is without power to pass upon the legal effect of an instrument offered for probate as a will. Estate of Smith, 34 W. L. R. 197. When an instrument testamentary in form is offered for probate, it is for the probate court to determine whether it has been properly exe- cuted, whether the decedent had the requisite mental capacity, and whether it was procured by fraud or undue influence. lb. The power of the Orphans' Court to make settlements, secure legatees, and order distribution includes, by necessary implication, the power to construe the provisions of the will in so doing. Mclntire v. Mclntire, 14 App. D. C. 337; 27 W. L. R. 198. The Supreme Court, sitting as an orphans' court, upon application for the probate of a will, is without jurisdiction to determine upon its suf- ficiency to pass the real estate devised thereby. Act of July 9, 1888, Ch. 597, construed. Campbell v. Porter, 24 W. L. R. 294. The probate court branch of the Supreme Court of this District is with- out power to determine the question of title to and control the possession of property. Richardson v. Daggett, 24 App. D. C. 440 ; 33 W. L. R. 24. The collectors of the estate of a decedent filed a petition in the probate court alleging" their belief that certain persons named in the petition had in their possession certain personalty belonging to the estate, and pray- ing that such persons be required to answer and disclose the property taken possession of by them, etc. The respondents answered, giving a de- scription of the property in controversy, denying that it was the prop- of the estate., and claiming title thereto in themselves. Held, that the provisions of" § 122, Code D. C, so far as applicable, were fully satisfied ; and all that the probate court could thereafter do was to terminate the 258 Courts. proceedings, and leave the parties to their remedies in the courts of general jurisdiction. lb. While a court of probate has supervisory power over the contracts of executors and administrators, it has neither power to make contracts for them nor to direct or authorize them to make any. MacKie v. How- land, 3 App. D. C. 461 ; 22 W. L. R. 435. Under the Testamentary Act of 1798, ch. 101, subch. 6, §§ 8, 10, 13 and § 16, subch. 15, the orphans' court has ample power over the subjects of discovery and accounting in respect of the assets of a deceased debtor. Mann v. MacDonald, 3 App. D. C. 456; 22 W. L. R. 385.' The orphans' court has power, subject to ratification by the equity court, to order sale of the real estate of a minor for the purposes of paying taxes and meeting the pressing necessities of the minor; and this includes the power to mortgage. Middleton v. Parke, 3 App. D. C. 149 ; 22 W. L. R. 265. The orphans' court is without power, in a proceeding for the settle- ment of a guardian's accounts, to require the sureties on a guardian's bond, not parties to the proceeding, to pay into court their respective propor- tions of an amount found to be due from the guardian. Rhodes v. Robie, 9 App. D. C. 305 ; 24 W. L. R. 729. The orphans' court having no jurisdiction over a devise of real estate, its decree on a verdict in the contest of a will which disposes of both real and personal property, admitting the will to probate, must be limited in operation to the personal property only. Perry v. Sweeny, 11 App. D. C. 404; 25 W. L. R. 724. The orphans' court has no power, upon the petition of a party alleging himself to be a creditor of an estate, to require money in the hands of a third person, the right to which is the subject of controversy between the next of kin, and in which such third person also claims an interest, to be biought into court and paid over to the register of wills. Cook v. Speare, 13 App. D. C. 446; 26 W. L. R. 744. The orphans' court of this District has jurisdiction to order an admin- istrator to bring into court, or to pay over to a surety, money realized by him from the sale of property of his decedent and in his hands as assets of the estate. Estate of McKnight, 1 App. D. C. 28; 21 W. L. R. 587. Costs and expenses incurred by an executor in defending the will are elements of the accounting and concern the administration of the estate, and their allowance or disallowance is not limited to the terra of the orphans' court at which an order was made confirming a verdict against the validity of the will, but is within the control of the court during the whole period of administration. Tuohy v. Hanlon, 18 App. D. C. 325 ; 29 W. L. R. 417. It is within the sound judicial discretion of the Supreme Court of the District, holding the probate court, to remove at will a collector of an estate to whom letters ad colligendum have been issued; and its exercise of that discretion will not be reviewed except where there has been an abuse of it. Guthrie v. Welch, 24 App. D. C. 563; 33 W. L. R. 162. The removal of a collector appointed pending a will contest, on the Courts. 259 ground that she is interested in the result of the litigation, is not an abuse of the discretion vested in the probate court. lb. Where a fund is given by a will to a trustee with directions to pay over its income to a legatee during her life, the orphans' court has no jurisdiction over him as trustee, although he may also be an executor of the estate. Its only authority is to direct that the income be paid to the trustee. McLane v. Cropper, 5 App. D. C. 276; 23 W. L. R. 115. Pending a writ of error to review a judgment estabhshing a will, which writ does not operate as a supersedeas, the orphans' court has jurisdiction to order, on petition of a legatee, an accounting by the executor and such partial distribution of the estate as will preserve the rights of all parties interested. Construing Maryland Act of 1798, ch. 101. lb. As to effect of appeal from order refusing probate of a will to suspend jurisdiction over fund disposed of by the will. See Sterrett v. Nat. Safe Deposit &c. Co., 10 App. D. C. 131 ; 25 W. L. R. 139. Under § 276, Code D. C, the probate court has discretion, as between a widow and a child, both qualified to act, to appoint either the one or the other as administrator of the estate of a decedent ; and it is also competent for the court to appoint the widow and child as joint adminis- trators, where they consent to such appointment ; but a j oint administra- tion will not be forced upon a party entitled against his or her consent. Williams v. Williams, 24 App. D. C. 214; 33 W. L. R. 132. As to power of probate court to grant letters of administration for purposes of action for (5eath by wrongful act. See Western Union Tel. Co. V. Lipscomb, 22 App. D. C. 104; 31 W. L. R. 422. The orphans' court has authority to allow to a party named as executor in a will the necessary counsel fees and expenses of a trial upon the issues framed, after the filing of the petition for probate and the caveat thereto, but before the formal admission of the will to probate and the grant of letters testamentary to such party, where such trial resulted in the will being declared invalid. Pritchard's Estate, 30 W. L. R. 9. The orphans' court of the District of Columbia has power to allow an executor named in the will and duly qualified, costs and expenses, including counsel fees, incurred in unsuccessfully defending against a caveat thereto; and the amount of such allowance is discretionary with the court. Tuohy v. Hanlon, 18 App.D. C. 225; 29 W. L. R. 417. As to jurisdiction of probate court to authorize executor to employ counsel to defend will and direct payment of retainer. See Kengla v. Randall, 22 App. D. C. 463; 31 W. L. R. 695. Where an estate is insufficient to pay the claims 6f creditors, the orphans' court has no power to allow counsel fees for defending the will where such allowance will affect the claims of the creditors. Hamilton V. Shillington, 19 App. D. C. 268; 30 W. L. R. 39. The award of costs in the probate court is discretionary. Thorn v. Thorn, 35 W. L. R. 388. Under the Act of Maryland of 1798, ch. 101, the orphans' court has power and jurisdiction to make and enforce distribution of undisposed of residue of the personal estate of a testator. Sinnott v. Kenaday, 14 App. D. C. 1; 27 W. L. R. 82. 26o Courts. As to jurisdiction to require an executor to pay to next of kin residue of estate after payment of debts and legacies. See Sinnott v. Kenaday, 12 App. D. C. 115; 26 W. L. R. 121. Under the Statute of Maryland of 1798, either party to a controversy of fact in the orphans' court has the right to require an issue to be framed for submission to a jury, and the court is not at liberty to refuse it. Estate of Atwood, 2 App. D. C. 74. It is for the court to determine whether an issue should be framed for submission to a jury. McCarthy v. McCarthy, 20 App. D. C. 195; 30 W. L. R. 419. As to right of appeal from orders of. See Dugan v. Northcutt, 7 App. D. C. 351; 24 W. L. R. 2. As to what constitutes a final order of. See Hamilton v. Shillington, 19 App. D. C. 268; 30 W. L. R. 39. As to review of order allowing commission to executrix. See Sinnott V. Kenaday, 14 App. D. C. 1 ; 27 W. L. R. 82. XI. Equity Courts. A court of equity is without power to restrain proceedings that are being conducted in other courts competent to construe the statutes under which they act and to decide every question that may arise in the course of the proceeding. Wilson v. Lambert, 168 U. S. 611. Courts of equity have jurisdiction to hear complaints of those who as- sert that their lands are about to be assessed- and subjected to liens under an unconstitutional statute. lb. As to whether a court of equity has jurisdiction to enjoin the enforce- ment of a police regulation through prosecutions duly carried on in a court of competent jurisdiction and where no attempt is made to en- force the same by the forcible invasion of or trespass upon property. See Balto. & O. R. R. Co. v. District of Columbia, 10 App. D. C. Ill; 25 W. L. R. 118. A court of equity is without jurisdiction to enjoin the Postmaster General from removing a superintendent of mails from office. Woods V. Gary. 25 W. L. R. 591. Jurisdiction of court of equity to grant an injunction where no under- taking has been filed. Drew v. Hogan, 26 App. D. C. 55 ; 33 W. L. R. 488. As to power of court of equity to order money or securities brought into court. See Cook v. Speare, 13 App. D. C. 446 ; 26 W. L. R. 744. A court of equity has no jurisdiction to decree the sale of real estate of a lunatic merely for the purpose of better investment. Clark v. Mathewson. 7 App. D. C. 382; 24 W. L. R. 41. Power to appoint receivers of partnership property in suit for an ac- counting and distribution and take from surviving partner all the part- nership property. Mayers v. Cummings, 17 App. D. C. 269 ; 29 W. L. R. 3. As to power of court of equity to appoint a receiver before service of process on defendant. See Barley v. Gittings, 15 App. D. C. 427; 27 W. L. R. 802. A court which appoints a receiver and causes a fund to accumulate on Courts. 261 his hands may continue to make all proper orders for the conservation of the fund, notwithstanding an appeal is pending, and this includes the power to substitute or change receivers. Hitz v. Jenks, 16 App. D. C. 530; 38 W. L. R. 630. As to power of court of equity, on cross-bill, to direct service of pro- cess on' solicitor for the complainant in the original bill. See American Graphophone Co. v. Smith, 26 App. D. C. 563 ; 34 W. L. R. 112. As to jurisdiction of court of equity to decree partition. See Smith v. Butler, 15 App. D. C. 345 ; 27 W. L. R. 770. Power of court of equity at suit of a citizen to declare null and void an agreement illegal under the anti-trust act. Leonard v. Abner-Drury Brewing Co., 25 App. D. C. 161; 33 W. L. R. 211. Want of jurisdiction of court of equity to decree specific performance of a contract of sale, there being an adequate remedy at law. Hazelton V. Miller, 25 App. D. C. 337 ; 33 W. L. R. 217. As to power of courts of equity to grant- maintenance, alimony pendente lite and counsel fees to a deserted wife. See Lesh v. Lesh, 21 App. D. C. 475 ; 31 W. L. R. 288. ' As to continuation of decree of divorce requiring payment of alimony. See Beall v. Beall, 27 App. D. C. 468; 34 W. L. R. 388. A court of equity will recognize the want of jurisdiction and give effect to it, even though the question be not raised in the pleadings, or on the argument. Dewey Hotel Co. v. U. S. Blec. L. Co., 17 App. D. C. 356 ; 29 W. L. R. 71. A court of equity is not bound of its own motion to raise the question of its jurisdiction. McGowan v. Blroy, 28 App. D. C. 188; 34 W. L. R. 782. An objection of want of jurisdiction of the equity court of a suit to set aside a will is waived by an agreement of the parties to submit issues to a jury and return of the testimony taken in such trial to the equity court for consideration by the judge thereof. Beyer v. LePevre, 186 U. S. 114. A court of equity in this District has jurisdiction of a suit to declare and enforce a trust respecting real estate in another jurisdiction, where the defendant is found here. Stone v. Powlkes, 29 App. D. C. 379 ; 35 W. L. R. 261. Jurisdiction to require accounting of trustee's executors at suit of cestui que trust. Darlington v. Turner, 24 App. D. C. 573 ; 33 W. L. R. 114. S. C. 302 U. S. 195. In cases of concurrent jurisdiction, courts of equity will hold themselves bound by the statute of limitations applicable at law upon the same de- mand. Wash. Loan & Trust Co. v. Darling, 21 App. D. C. 133; 31 W. L. R. 129. Courts of equity look at the substance rather than the form of things. Wilson V. Shaw, 35 App. D. C. 510 ; 33 W. L. R. 328. There is nothing in the Bankruptcy Act of 1898, or the amendments thereto, which interferes with the jurisdiction of the Supreme Court of this District, sitting as an equity court, to entertain a suit for the estab- lishment of an equitable lien against the real estate of a bankrupt; and in the event of a decree by the equity court in favor of complainant it 262 Courts. will be the duty of the bankruptcy court to give due effect to such decree. Crosby v. Ridout, 27 App. D. C. 481 ; 34 W. L. R. 320. As to equity jurisdiction of United States courts. See Hess v. Horton, 2 App. D. C. 81 ; 22 W. L. R. 73. XII. Criminal Courts. The two branches of the criminal court are not separate and inde- pendent tribunals, but are component parts of the Supreme Court of the District, and a criminal may be properly arraigned in one and tried and convicted in the other. Grain v. United States, 2 App. D. C. 549: 22 W. L. R. 208. Section 23, ch. 35, Comp. Stat. D. C, giving the criminal court juris- diction of all crimes and misdemeanors committed in the District, not lawfully triable in any other court, refers only to other courts within the District. Hyde v. Shine, 199 U. S. 62. The jurisdiction of the court in which an indictment or information is found is not impaired by the manner in which the accused is brought before it. Holden v. United States, 24 App. D. C. 318; 33 W. L. R. 34. As to whether the courts of this District have jurisdiction over the of- fense of theft committed in a neighboring State because the stolen prop- erty is thereafter brought into this District. See Davis v. United States, 18 App. D. C. 468 ; 29 W. L. R. 574. As to the court in which the technical sufficiency of an indictment should be determined. See Hayes v. Palmer, 21 App. D. C. 450; 31 W. L. R. 271. As to jurisdiction to try issue raised by evidence the practical effect of which is to set up defense of alibi. See lb. XIII. Status as Courts of United States. The Supreme Court of the District is one of the inferior courts whose creation is authorized by Art. Ill, § 1, of the Constitution, and possesses the same powers and exercises the same jurisdiction as the Circuit and District Courts of the United States. In re Macfarland. 36 W. L. R. 114. The Supreme Court of the District is a court of the United States within the meaning of § 714, Rev. Stat. James v. United States, 202 U. S. 401. Whether the trial courts of this District are circuit or district courts of the United States in either a general or special sense, qucere; but § 1 of the act of Mar. 3, 1887, defining the jurisdiction of those courts in districts within the several States, was not intended to apply in the District of Columbia. Guilford Granite Co. v. Harrison Granite Co., 23 App. D. C. 1 ; 31 W. L. R. 759. The general restrictions of the Constitution which govern the exercise of jurisdiction by the courts of the United States within the several States have no operation in the District of Columbia. lb. A justice of the Supreme Court of the District is a United States judge within the meaning of the Chinese Exclusion Acts, and has jurisdiction to grant an order for deportation. Chan Gun v. United States, 9 App. D. C. 290; 24 W. L. R. 764. The Supreme Court of the District of Columbia is a court of the United States and § 725 Rev. Stat, is applicable thereto. Moss v. United States, 23 App. D. C. 475; 32 W. L. R. 342. Courts. 263 As to status of the Supreme Court of the District of Columbia as a court of the United States. See Burgdorf v. Dis. of Col., 7 App. D. C. 405; 24 W. L. R. 21. Whether § 730, R. S., providing that courts of the United States shall not enjoin proceedings in any State court is applicable in this District, so that its courts are without jurisdiction to enjoin a party resident here from proceeding in the courts of Maryland, discussed but not decided. Keane v. Chamberlain, 14 App. D. C. 84 ; 27 W. L. .R. 98. XIV. Powers and Duties Generally. A judicial tribunal is to decide actual controversies by a judgment which can be carried into effect and not to give opinions upon moot questions or to declare principles of law which cannot affect the matter in issue before it; and so held that action sought to be enjoined having been taken before an appeal was perfected, the appeal must be dismissed. Cardoso v. Baird, 35 W. L. R. 462. In a trial by the court without a jury the court determines the weight of evidence and its determination of that question is not reviewable. In such case there is no necessity for the rigid insistance upon the rules of evidence proper in jury trials. Shelley v. Wescott, 23 App. D. C. 135; 32 W. L. R. 68. It is within the right of a trial judge to sum up the facts, but expres- sions of opinion are to be avoided. LeCointe v. United States, 7 App. D. C. 16; 23 W. L. R. 482. A trial court in charging the jury should carefully refrain from express- ing any opinion as to the relative weight to be given the testimony of competent witnesses. Metropolitan R. R. Co. v. Jones, 1 App. D. C. 200; 21 W. L. R. 646. In the Federal courts the trial judge may, if in his discretion it is proper so to do, sum up the facts ; and if no rule of law is incorrectly stated, and the matters of fact are ultimately left for the determination of the jury, an expression of opinion upon the facts is not reviewable on error. Maxey v. United States, 35 W. L. R. 446. As to power to appoint receiver for property of foreign corporations. See Barley v. Gittings, 15 App. D. C. 427; 27 W. L. R. 802. Appointment of trustee. Landram v. Jordan, 25 App. D. C. 291 ; 33 W. L. R. 243. Duty of court to appoint a new trustee on death of original trustee, where expressly directed by will. Cruit v. Owen, 25 App. D. C. 514; 33 W. L. R. 323. Certiorari cannot be used to test the authority of the Supreme Court of the District to appoint a United States Commissioner. United States V. Mills, 11 App. D. C. 500; 26 W. L. R. 89. That the strict enforcement of a statute under the only construction of which it is fairly susceptible, will virtually render impossible the manu- facture of gas in the District, is a subject not for the courts, but for Congress to control. Holden t. United States, 24 App. D. C. 318; 33 W. L. R. 34. Where a statute prohibiting the practice of medicine does not define ■'practicing medicine" or what it is to "publicly profess to do so," it is for the courts to determine whether the facts proved in a particular case 264 Courts. bring it within the terms of the statute in the sense in which they are commonly used. Springer v. Dis. of Col, 23 App. D. C. 59; 32 W. L. R. 20. Where an appeal has been taken from a final order, and the term at which the order was rendered has lapsed, the court entering it is without jurisdiction to vacate it, except as provided in the act of Maryland of 1787, ch. 9, § 6. Dis. of Col. v. Prospect Hill Cemetery, 5 App. D. C. 497 ; 23 W. L. R. 163. A court has power to open or vacate a judgment or decree after the expiration of one or more terms, if such judgment or decree be void. Macfarland v. Saunders, 25 App. D. C. 438 ; 33 W. L. R. 393. A court of law is competent to vacate the levy and sale under execution of an equity of redemption and the return of the marshal in respect thereto. Starr v. United States, 8 App. D. C. 552 ; 24 W. L. R. 502. Where parties fail to agree upon a bill of exceptions, the trial court has power under Rule 56 to set aside the verdict and grant a new trial. Ez'ans V. Humphreys, 9 App. D. C. 392 ; 24 W. L. R. 783. As to power to allow amended or supplemental affidavit of defense. See Landauer v. Magruder, 25 W. L. R. 214, Power to amend verdict. See Washington Market Co. v. Clagett, 19 App. D. C. 12; 29 W. L. R. 807. The trial court has the power, in a divorce proceeding, to require hus- band to advance wife funds necessary to prosecute an appeal. Morgan v. Morgan, 35 App. D. C. 389 ; 33 W. L. R. 409. The duty of a court under a rule for prolonging a term is to be exer- cised when invoked; but it is not the duty of a court to prolong a term of its own motion. Gordon v. Randlc, 189 U. S. 417. As to power to render judgment upon confession. See Harper v. Cunningham, 5 App. D. C. 203; 23 W. L. R. 100. A Federal court sitting in another jurisdiction is without authority to issue its warrant to the marshal of this District for the arrest and removal to that jurisdicion of a party found here, no such authority being conferred by § 716 or § 1014, R. S. U. S. Palmer v. Thompson, 20 App. D. C. 273; 30 W. L. R. 483. Courts of law possess no right or power to give relief in cases of contract where a court of equity would not exercise a similar power. Dis. of Col. V. Harlan & Hollingsworth Co., 36 W. L. R. 82. When the power to exercise the right of eminent domain is delegated to a railway company the courts will supervise the exercise of that power and restrain any clear case of abuse. Riley v. Balto. & Ohio R. R. Co., 27 App. D. C. 105; 34 W. L. R. 274. Courts are not at liberty to read into a will a clause providing for a contingency which testator has overlooked, notwithstanding their view of testator's intention. Paul v. Hulick, 18 App. D. C. 9 ; 29 W. L. R. 171. Right to refuse to grant writ of mandamus. See Dancy v. Clark, 24 App. D. C. 487 ; 33 W. L. R. 18. The Supreme Court of the District has power to compel obedience to an order awarding alimony by committing the party to jail if he refuses to obey it. Lane v. Lane, 27 App. D. C. 171 ; 34 W. L. R. 324. Power to punish for contempt. Drew v. Hogan, 25 App. D. C. 55 ; Courts. 265 33 W. L. R. 488; McCaully v. United States, 25 App. D. C. 404; 33 W. L. R. 306. Power to look beyond answer to a rule to show cause. Mayers v. Cummings, 17 App. D. C. 269; 29 W. L. R. 3. A rule of court is the law of the court and there is no dispensing power in the court to meet the supposed pressing exigency of a particular case. Dis. of Col. v. Humphries, 11 App. D. C. 68; 35 W. L. R. 398. Dispensing power over rules. Drew v. Hogan, 35 App. D. C. 55; 33 W. L. R. 488. The large powers of the courts should not be used to legislate a differ- ent and heavier penalty than the law intended. Harris v. Nixon, 27 App. D. C. 94 ; 34 W. L. R. 179. As to jurisdiction to enforce penalties for violations of Safety Appli- ance Act. See United States v. Balto. &■ Ohio R. R. Co., 36 App. D. C. 581; 34 W. L. R. 143. As to duty to give effect to intention of donor of gift causa mortis. See Boyd v. Willard, 34 W. L. R. 99. It is for the court to determine whether the by-laws of a corporation are reasonable and valid. Johnson v. Walker, 28 W. L. R. 187. Whether the power of a fraternal organization to tax its members or devote the proceeds of a tax for a particular purpose, is within the power granted by the laws of the order, is for the courts to determine. Na- tional Council V. State Council, 32 W. L. R. 728. A trial court is without jurisdiction to subject to the satisfaction of a judgment, on dismissal of appeal therefrom, a deposit made by attorney for appellant, out of his own funds, in lieu of appeal bond, such deposit being expressly made not to act as a supersedeas. Mitchell v. Evans, 18 App. D. C. 354; 39 W. L. R. 399. The duty of righting the wrongs that may be done citizens of the United States in foreign lands is a political one and appertains to the executive and legislative departments of the Government. The judiciary is charged with no duty and invested with no power in the premises. Hohendorf v. Hay, 20 App. D, C. 576 ; 30 W. L. R. 825. It is for the court to determine what constitutes an extraordinary emergency justifying a contractor on pubhc work in requiring or permit- ting an employe to work more than eight hours a day. Penn Bridge Co. V. United States, 35 W. L. R. 287. The duty of ascertaining the value of the plant of the Washington Gas Light Company and of its future extensions and enlargements, as the basis for increasing its capital stock, is a legislative duty, involving the exiercise of no judicial power, in the constitutional sense, and Congress cannot therefore impose it upon the courts of the District. In re Mac- farland et al, 36 W. L. R. 114. Congress is without power to delegate to a judicial tribunal a de- termination which does not involve an asserted and contested right, and which, when made, is not a final and conclusive one that may be given effect to by the power of the court. lb. XV. Discretionary Powers. As to award of costs. See Morimura v. Samaha, 25 App. D. C. 189 ; 33 266 Courts. W. L. R. 258. Eaton V. Brown, 20 App. D. C. 454; 30 W. L. R. 746. Smith V. Olcott, 19 App. D. C. 61; 29 W. L. R. 766. Tuohy v. Hanlon, 18 App. D. C. 225; 25 W. L. R. 417. United Security Co. v. Lamer, 18 App. D. C. 147 ; 29 W. L. R. 275. Cassidy v. Roberts, 29 W. L. R. 76. As to amendment of pleadings. See Chunn v. City & Sub. Ry., 23 App. D. C. 551; 32 W. L. R. 344. Schrot v. Schoenfeld, 23 App. D. C. 421; 32 W. L. R. 230. Brainard v. Buck, 16 App. D. C. 595; 28 W. L. R. 585. Meyers v. Davis, 13 App. D. C. 361 ; 26 W. L. R. 710. Tyler v. Messenger Co., 13 App. D. C. 267; 26 W. L. R. 677. Morris v. Wheat, 11 App. D. C. 201 ; 25 W. L. R. 494. Chester v. Morgan, 11 App. D. C. 435; 25 W. L. R. 767. Casey v. National Union, 3 App. D. C. 510; 22 W. L. R. 433. Met. R. R. Co. v. Snashall, 3 App. D. C. 420; 22 W. L. R. 377. German Evang. Soc. v. Prospect Hill Cemetery, 2 App. D. C. 310; 22 W. L. R. 122. As to granting leave to file additional pleas. See Brown v. Balto. & Ohio R. R. Co. 6 App. D. C. 237; 23 W. L. R. 337. As to allowing defendant in equity to both demur to the bill and file pleas by way of defense thereto. See Alexander v. Alexander, 13 App. D. C. 334; 26 W. L. R. 787. As to extending time for settling bill of exceptions. See Raymond v. United States, 26 App. D. C. 250; 34 W. L. R. 562. As to requiring filing of bill of exceptions. See Fields v. United States, 27 App. D. C. 433; 34 W. L. R. 392. As to requiring bill of particulars. See Fields v. United States, 27 App. D. C. 433; 34 W. L. R. 392. Hyde v. United States, 27 App. D. C. 362; 34 W. L. R. 494. Bass v. United States, 20 App. D. C. 332; 30 W. L. R. 546. Lauer v. Dis. of Col., 11 App. D. C. 453 ; 26 W. L. R. 72. Vansant V. Lindsley, 2 App. D. C. 421 ; 22 W. L. R. 162. As to granting special permission to file bill of review where decree has not been performed. See Perkins v. Tyrer, 24 App. D. C. 447; 33 W. L. R. 54. As to order of proof. See Lorens v. United States, 24 App. D. C. 337; 32 W. L. R. 822. Raub v. Carpenter, 17 App. D. C. 505 ; 29 W. h. R. 122. Throckmorton v. Holt, 12 App. D. C. 552; 180 U. S. 552. Crawford v. United States, 35 W. L. R. 478. Lansburgh v. Wimsatt, 7 App. D. C. 271; 23 W. L. R. 815. As to admission of testimony out of its order. See LeCointe v. United States, 7 App. D. C. 16 ; 23 W. L. R. 482. Olmstead v. Webb, 5 App. D. C. 38; 33 W. L. R. 169. As to striking out testimony. See DeForest v. United States, 11 App. D. C. 458 ; 26 W. L. R. 346. Crawford v. United States, 35 W. L. R. 478. Thompson v. United States, 36 W. L. R. 98. As to determination of sufficiency of evidence to show competency of confession. • See Brady v. United States, 1 App. D. C. 246; 21 W. L. R. 665. Hardy v. United States, 3 App. D. C. 35; 23 W. L. R. 336. Travers v. United States, 6 App. D. C. 450 ; 23 W. L. R. 469. As to latitude of cross-examination. See Horton v. United States, 15 App. D. C. 310 ; 27 W. L. R. 706. Daris v. Coblens, 12 App. D. C. 51 ; 26 W. L. R. 34 ; S. C. 174 U. S. 719. As to allowance of leading questions. See Kehan v. Wash. Ry. & El. Courts. 267 Co., 28 App, D. C. 108; 34 W. L. R. 451. Holtzman v. Douglas, 5 App. D. C. 397; 23 W. L. R. 146. As to extent to which cumulative evidence shall be admitted. See Trometer v. Dis. of Col, 24 App. D. C. 242 ; 32 W. L. R. 763. As to exclusion of opinion evidence. See Kight v. Met. R. R. Co., 21 App. D. C. 494; 31 W. L. R. 302. As to whether circumstance material or relevant. See Funk v. United .States, 16 App. D. C. 478 ; 28 W. L. R. 486. As to scope and limitation of hypothetical questions. See Norton v. United States, 15 App. D. C. 310; 27 W. L. R. 706. As to granting motion to vacate judgment on ground of newly discov- ered evidence. See Hill v. United States, 22 App. D. C. 395; 31 W. L. R. 553. As to introduction of newly-discovered evidence under bill of review. See Osborne v. Davidson Mortgage Co., 8 App. D. C. 481 ; 24 W. L. R. 313. As to admissibility of evidence under issue of undue influence in will contest. See Olmstead v. Webb, 5 App. D. C. 38 ; 22 W. L. R. 801. As to granting continuance. See Riddle v. Gibson, 35 W. L. R. 143. Fields V, United States, 27 App. D. C. 433 ; 34 W. L. R. 382. Crandall v. Lynch, 20 App. D. C. 73 ; 30 W. L. R. 326. Foertsch v. Germuiller, 9 App. D. C. 351; 24 W. L. R. 794. Bradshazv v. Stott, 7 App. D. C. 276; 23 W. L. R. 830. As to granting new trial. See Paolucci v. United States, 36 W. L. R. 2. Keely -v. Moore, 23 App. D. C. 9 ; 31 W. L. R. 339. Columbia Ry. Co. V. Cruit, 20 App. D. C. 521; 30 W. L. R. 776. Woods v. Richmond & D. R. R. Co., 1 App. D. C. 165 ; 21 W. L. R. 635. Hill v. United States, 22 App. D. C. 395 ; 31 W. L. R. 552 As to confirmation of judicial sales. See Parsons v. Little, 28 App. D. C. 218; 35 W. L. R. 46. Auerbach v. Wolf, 22 App. D. C. 538; 31 W. L. R. 716. Rowland v. Munck 15 App. D. C. 403; 27 W. L. R. 740. As to vacation of judgment. See Hill v. United States, 22 W. L. R. 395 ; 31 W. L. R. 552. St. Clair v. Conlon, 12 App. D. C. 161 ; 26 W. L. R. 165. As to appointment of .trustees to make sale. See Wood v. Grayson, 22 App. D. C. 432; 31 W. L. R. 663. As to appointment of receivers. See Jenkins v. Purcell, 35 W. L. R. 232. Wood V. Grayson, 16 App. D. C. 174; 28 W. L. R. 275. Clark v. Bradley Coal Co., 6 App. D. C. 437; 33 W. L. R. 419. As to allowance of compensation to receivers. See Cake v. Woodbury, 3 App. D. C. 60; 22 W. L. R. 236. As to permitting receiver to carry on business. See Cake v. Mohun, 164 U. S. 311 ; 35 W. L. R. 9. As to allowance of counsel fees in cases of attachment and garnishment. See Morimura v. Samaha, 35 App. D. C. 189 ; 33 W. L. R. 258. As to custody of infants. See Seeley v. Seeley, 36 W. L. R. 4. Beall V. Bibb, 19 App. D. C. 311 ; 30 W. L. R. 138. Stickel ii. Stickel, 18 App. D, C. 149; 29 W. L. R. 563. Wells v. Wells, 11 App. D. C. 392; 36 W. L. R. 71. As to competency of witness to give opinion evidence. See Turner v. 268 Courts. 'American S. & T. Co., 29 App. D. C. 460; 35 W. L. R. 303. Bradley v. Dis. of Col, 30 App. D. C. 169 ; 30 W. L. R. 455. Rauh v. Carpenter, 17 App. D. C. 505; 29 W. L. R. 123. As to permitting children of tender age to testify. See Williams v. United States, 3 App. D. C. 335 ; 22 W. L. R. 457. As to examination of one's own witness as to former contradictory statements. See Weaver v. Balto. & Ohio R. R. Co., 3 App. D. C. 436; 22 W. L. R. 393. As to granting injunction pendente lite. See Webb v. King, 31 App. D. C. 141; 31 W. L. R. 79. Standard Oil Co. v. Oeser, 11 App. D. C. 80; 35 W. L. R. 500. As to alignment of parties. See Rich v. Lemmon, 15 App. D. C. 507; 28 W. L. R. 37. Overby v. Gordon, 13 App. D. C. 392; 26 W. L. R. 722. As to control of counsel. See Punk v. United States, 16 App. D. C. 478 ; 28 W. L. R. 486. Wash. & G. R. R. Co. v. Dashiell, 7 App. D. C. 507; 24 W. L. R. 40. As to requiring prosecution to elect on which of several counts of in- dictment it will go to trial. See Hyde v. United States, 27 App. D. C. 362; 34 W. L. R. 494. Lorenz v. United States, 24 App. D. C. 337; 32 W. L. R. 823. As to consolidation of cases for trial. See Welch v. Lynch, 35 W. L. R. 398. Bailey v. Dis. of Col, 9 App. D. C. 360 ; 24 W. L. R. 745. As to granting separate trial to one of two parties jointly indicted. See Maxey v. United States, 35 W. L. R. 446. As to reference to auditor. See Smith ,v. Gilmore, 7 App. D. C. 192 ; 23 W. L. R. 717. Taylor v. Life Ins. Co., 1 App. D. C. 209; 21 W. L. R. 611. As to allowance of intervention or suit by foreign receiver. See Barley v. Gittings, 15 App. D. C. 427 ; 27 W. L. R. 803. The refusal by the trial court to compel the attorney for the Government to return to the files the papers in the cause in which an accused was appointed receiver, which had been obtained from the clerk in preparing the case against defendant held not an abuse of its discretion where ac- cess to such papers and the right to examine and copy them was ac- corded defendant. Fields v. United States, 27 App. D. C. 433 ; 34 W. L. R. 382. As to allowance or refusal of request that parties be allowed to furnish jury with written statement of the respective amounts claimed. See Clements v. Mutersbaugh, 37 App. D. C. 165 ; 34 W. L. R. 373. As to suspending execution. See Byrne v. Morrison, 35 App. D. C. 72; 33 W. L. R. 215. As to allowance of alimony pendente lite. See Lesh v. Lesh, 31 App. D. C. 475; 31 W. L. R. 288. Tolman v. Tolman, 1 App. D. C. 299; 21 W. L. R. 771. As to appointment of administrators. See Williams v. Williams, 24 App. D. C. 214; 33 W. L. R. 132. As to granting certiorari. See Guy v. Dis. of Col, 25 App. D. C. 117; 33 W. L. R. 165. As to removal of collectors. See Guthrie t. Welch, 24 App. D. C. 562; 33 W. L. R. 162. Courts. 269 As to transfer of cause to another justice for trial. See Gassenheimer V. United States, 26 App. D. C. 432 ; 34 W. L. R. 80. As to directing or permitting remittitur of part of verdict. See Woods V. Richmond & D. R. R. Co., 1 App. D. C. 165 ; 21 W. L. R. 635. As to form of instruction relative to weight of evidence. See Gassen- heimer V. United States, 26 App. D. C. 432 ; 34 W. L. R. 80. As to retention or dismissal of suit. See Busch v. Jones, 16 App. D. C. 23 ; 28 W. L. R. 535. As to examination of jurors on their voir dire. See Howgate v. United States, 7 App. D. C. 217 ; 24 W. L. R. 518. As to requirement of additional bond from executor. See Cropper v. McLane, 6 App. D. C. 119 ; 23 W. L. R. 262. As to overruling motion to dismiss appeal from justice of the peace. See Slater v. Willige, 16 App. D. C. 364 ; 28 W. L. R. 454. As to granting writ of mandamus. See In re Key, 189 U. S. 84. As to raising question of laches when not relied upon by party. See CrutchAeld v. Hewett, 2 App. D. C. 373 ; 22 W. L. R. 127. As to perrrytting suit in forma pauperis. See Bx parte Harlow, 3 App. D. C. 203. As to departure from strict application of rules of practice. See Rob- inson V. Parker, 11 App. D. C. 132 ; 25 W. L. R. 497. As to application of rule that ''equity aids the vigilant." See Pryor v. Mclntire, 7 App. D. C. 417 ; 24 W. L. R. 49. XVI. Interference with Executive Officers. The courts will not interfere by mandamus with the executive officers of the Government in the exercise of their ordinary official duties, even where these duties require an interpretation of the law. Mutual Dis. Messenger Co. v. Wight, 15 App. D. C. 463; 28 W. L. R. 57. Lochren V. Long, 6 App. D. C. 486; 23 W. L. R. 358. Power of court to direct by mandamus an executive office of the Gov- ernment to perform an act commanded by law. U. S. ex rel. West v. Hitchcock, 29 W. L. R. 704. As to authority to issue writ of mandamus to compel performance of ministerial duty by head of Government department or chief of bureau. See West v. Hitchcock, 19 App. D. C. 333; 30 W. L. R. 186. The courts have no power to review, by mandamus or otherwise, the action of the head of an executive department of the Government in re- moving a clerk in the classified civil service of the United States for conduct prejudicial to the order and efficiency of the service. Taylor v. Taft, 24 App. D. C. 95; 32 W. L. R. 443. The courts have no power to revise the judgment of the Commission- ers of the District in respect of whether a plat of a subdivision conforms to the general plan of the city. Ross v. Goodfellow, 7 App. D. C. 1; 23 W. L. R. 385 ; reversing 23 W. L. R. 263. No appeal to the courts lies from the decision of the Commissioners of the District on an application for a grant or license relating to the public roads of the District. Mut. Dist. Messenger Co. v. Wight, 15 App. D. C. 463; 28 W. L. R. 57. As to power of courts in respect of apportionment by the District Com- 270 Courts. missioners of spaces of cab stand adjacent to station of B. & P. Railroad. See Dis. of Col. v. Hazel, 16 App. D. C. 283 ; 28 W. L. R. 372. The courts, in the exercise of their supervisory function over the acts of municipal ofificers, will uphold a regulation made by them looking to the public interest and safety, save when it is plain that it has no real or substantial relation to those objects or is a palpable invasion of rights secured by the fundamental law. Macfarland v. W., A. Mi. V. Ry. Co., 18 App. D. C. 456 ; 29 W. L. R. 547. The performance of duty by the excise board relative to bar-room li- censes to owners or lessees of hotels not subject to revision or review by courts, except for abuse or excess, or 'for mistake of the law. Wash- ington V. Johnson, 12 App. D. C. 545; 26 W. L. R. 419. An order of the Postmaster General excluding a class of publications from certain privileges of the mail service because, according to his con- struction of the statute, they are not entitled thereto, is not such an exercise of official discretion as prevents the examination by this court of the question whether his construction of the law is the correct one. Houghton V. Payne, 31 W. L. R. 178. Courts will not interfere with the Postmaster General in determining what is a periodical publication entitled to admission to mails at second- class rates. Reinach v. Cortelyou, 28 App. D. C. 570; 35 W. L. R. 94. As to conclusiveness of decisions of Postoffice Department relative to classification of mail matter. See Bates & Guild Co. v. Payne, 194 U. S. 106; 32 W. L. R. 297. As to power of courts to review determination of Postmaster General. See Payne v. Bates & Guild Co., 22 App. D. C. 250 ; 31 W. L. R. 395. It is not within the power of courts to interfere with proceedings in the Land Department by cancelling an order of the Secretary of the Interior which revoked and annulled the action of his predecessor in approving a selection of swamp land by a State ; nor to restrain the officers of the Land Department from carrying such order into effect. Courts should be resorted to only when the legal title has passed from the Government. Broim V. Hitchcock, 173 U. S. 473. The courts are without power to pass upon the correctness of a decision by the Secretary of the Interior as to the right of one, claiming to be a member of a band of Indians, to select land under an agreement ratified by Congress. West v. Hitchcock, 26 App. D. C. 290 ; 34 W. L. R. 3 ; 205 U. S. 80. Courts cannot, by mandamus, control administrative action of Bureau of Indian Affairs and Department of Interior. Hitchcock v. Bighoy, 22 App. D. C. 275; 31 W. L. R. 556. The Court of Appeals cannot review by mandamus the determination by the Commissioner of Patents of the question whether a label is entitled to registration. Allen v. Regina Music Box Co., 22 App. D. C. 271; 31 W. L. R. 476, The Supreme Court of the District of Columbia is without jurisdiction to grant a writ of certiorari to review the proceedings of a board of ex- amination, convened pursuant to the authority conferred on the President by the act of Congress of October 1, 1890, to determine the fitness for Courts. 271 promotion of an officer of the United States Army. Reaves v. Ainsworth, 28 App. D. C. 157; 34 W. L. R. 542. The courts can not be called upon to solve any doubt as to the strict correctness of the construction given by the Secretary of War to the pro- visions of the act of Congress of Feb. 2, 1901, relative to the reorganiza- tion of the Army, which construction has been acted upon by him in a manner affecting a large class of officers. Edwards v. Root, 22 App. D. C. 419; 31 W. L. R. 679. As to control of public officers. See Downing v. Ross, 1 App. D. C. 251; 21 W. L. R. 683; Tuttle v. Allen, 35 W. L. R. 50; U. S. ex rel. West V. Hitchcock, 29 W. L. R. 704. A question cannot be considered judicial in its character because it involves the consiHeration of evidence and the exercise of discretion. In re Macfarland, 36 W. Iv. R. 114. XVII. Interference with Legislative Department. Courts can only declare an act of Congress void when it is plainly violative of the Federal Constitution. Weigand v. Dis. of Col. 22 App. D. C. 559; 31 W. L. R. 730. Where the legislature makes a plain provision in regard to any subject- matter, the courts cannot add to or extend the provision beyond the plain import of the words employed. McCarthy v. McCarthy, 20 App. D. C. 195; 30 W. L. R. 419. The power of Congress to administer upon and guard tribal property of Indians is political and administrative in its nature, and the manner of its exercise is not a question for the courts. Cherokee Nation v. Hitchcock, 187 U. S. 294. Courts can not interfere with action of Congress in dealing with lands set aside for Indians. Naganab %'. Hitchcock, 25 App. D. C. 200; 33 W. L. R. 248. The propriety of the exercise by Congress of its power of legislation over the Indian tribes is not a question for inquiry or determination by the courts, but belongs exclusively to the political department of the Government. Lone Wolf v. Hitchcock, 29 W. L. R. 463. The courts have no control whatever over legislation, and no power to question its motives or purposes, provided it keeps within the limits of the constitutional power, and cannot declare void an act of Congress ratifying an agreement with Indian tribes on the ground that the agree- ment was procured from the Indians by fraud and deception. Lone Wolf V. Hitchcock, 19 App. D. C. 315 ; 30 W. L. R. 166. As to power of Federal judiciary to control authority of Congress over Indians. See Lone Wolf v. Hitchcock, 187 U. S. 553 ; 31 W. L. R. 46. The wisdom or expediency of the action of Congress in the exercise of its taxing power are beyond the control of the courts. Moore v. Miller, 5 App. D. C. 413 ; 23 W. L. R. 65. Courts have nothing to do with the wisdom or expediency of either general or special taxes : that is for the legislature. But when it becomes manifest that the legislature has exceeded the just and plain limits of its discretion and invaded private right, the courts will intervene. Allman V. Dis. of Col, 3 App. D. C. 8 ; 32 W. L. R. 201. 272 Courts. As to power of courts of the District to enjoin the collection of a tax assessed by Congress. See Burgdorf v. Dis. of Col., 7 App. D. C. 405; 24 W. L. R. 31. Courts have no power to interfere with charges fixed by Congress for advertising property on which taxes are overdue. lb. Courts may properly inquire into the reasonableness of a police regula- tion and declare void one which grants an exclusive right or results in unfair discrimination against the public. Dis. of Col. v. Sargeant, 17 App. D. C. 264; 29 W. L. R. 6. While courts have the power to inquire into the reasonableness of municipal regulations affecting the free exercise of the ordinary rights of persons and property, when sought .to be enforced, they will not de- clare them invalid save in plain cases of usurpation of power or abuse of discretion. Balto. & Ohio R. R. Co. v. Dis. of Col., 10 App. D. C. Ill ; 25 W. L. R. 118. As to deference to opinion of municipal authorities on the question of reasonableness of police regulations. See lb. Courts will not inquire into the wisdom of the decision of Congress as to what constitutes a reasonable time within which suits for causes accruing prior to the enactment of a new statute of limitations may be brought, unless the time allowed would constitute a denial of justice. Gzvin V. Brown, 21 App. D. C. 295 ; 31 W. L. R. 238. While the legislative power is inherent and its exercise a matter of wide discretion in respect of the regulation of the conduct and charges of a business affected with a public interest, the one is not paramount and exclusive, and the other is not so conclusive as to preclude judicial inquiry into the effect of a given regulation upon the substantial rights of property of the persons affected. Manning v. Telephone Co., 18 App. D. C. 191; 29 W. L. R. 238. Courts are bound to presume that Congress in enacting legislation acted with due knowledge and fair consideration of all the facts and circum- stances of the situation which it undertakes to affect. lb. Courts should not be swift to find defects in a treaty, the purpose to be subserved thereby being almost exclusively within the cognizance of the executive and legislative departments of the Government. Wilson v. Shazv, 25 App. D. C. 510; 33 W. L. R. 328. XVIII. Judicial Notice. Courts are bound to take judicial notice of a change in the incumbency of a public office. Backus Co. v. Simonds, 2 App. D. C. 290; 22 W. L. R. 137. Courts will take judicial notice of the powers and duties of the Secre- tary of the Navy under the Constitution and laws. McGowan v. Moody, 22 App. D. C. 148; 31 W. L. R. 371. Courts will take judicial notice pf departmental regulations in aid of a law. Prather v. United States, 9 App. D. C. 82 ; 24 W. L. R. 395. The courts will not take judicial notice of foreign administration; but will, for the purposes of a creditor's suit filed by resident creditors against locally situated real estate of a decedent, where the bill alleges that he left no personal property here and that there was no local administration, Courts. 273 assume that there are no executors or administrators. Plumb v. Bateman, 2 App. D. C. 156; 22 W. L. R. 20. Judicial notice will be taken of the dereliction of street railway com- panies in failing to provide adequate accommodations for passengers. Capital Traction Co. v. Brown, 29 App. D. C. 473 ; 35 W. L. R. 306. Judicial notice will be taken of the course of nature, of the location of the falls of the Potomac river near Washington, where the velocity of the current of a great river is first impeded by the tide, and of the variation between mean high and low tide at a certain point. Seuiferle v. Macfar- land, 28 App. D. C. 94; 34 W. L. R. 526. An appellate court will take judicial notice of the rules of a lower court. Johnson-Wynne Co. v. Wright, 28 App. D. C. 375; 35 W. L. R. 2. Judicial notice will be taken of statutes of a State relative to practice in extradition proceedings. Hayes v. Palmer, 21 App. D. C. 450; 31 W. L. R. 271. Court will take judicial notice that semicircular hand-holds or recesses in front of book-shelves have been long in familiar use. Office Specialty Co. V. Penton, 174 U. S. 492. The Court of Appeals will take judicial notice of the Las Vegas land grant and of the existence of the town of Las Vegas. Maese v. Hermann, 17 App. D. C. 52. XIX. Comity. While courts ought to protect and preserve the rights of those within their own jurisdiction, they ought not to do so in disregard of the rights of those of other jurisdictions. Jenkins v. Pur cell, 35 W. L. R. 322. As to following construction placed upon contracts between building associations and borrowing members by courts of State in which associa- tion incorporated. See Armstrong v. United States B. & L. Ass'n, 15 App. D. C. 1; 27 W. L. R. 351. See Patents. XX. In General. As between courts of concurrent jurisdiction, that which first acquires jurisdiction should retain it and proceed to the final determination of the case. Hendley v. Clark, 8 App. D. C. 165 ; 24 W. L. R. 197. A court of concurrent authority first obtaining jurisdiction is entitled to hold it to the exclusion of the other, even though such other be of general and superior jurisdiction, and a cause cannot be transferred from the former to the latter by certiorari. Hendley v. Clark, 8 App. D. C. 165. Brown v. Slater, 23 App. D. C. 51 ; 32 W. L. R. 18. As to right of recourse to courts by beneficiary under policy of a beneficial association whose by-laws prohibit legal proceedings against it by a member in any other way than through the regular channels of the order. See Prudent Patricians v. Marr, 20 App. D. C. 363; 30 W. L. R. 563. When courts will interfere to determine the good standing of a member of a fraternal beneficial association. See lb. In a court of justice, or in any body authorized to institute a judicial inquiry, no private affairs pertinent to the subject of inquiry are tOQ 274 Courts. sacred to be the subject of the examination, unless protected upon some ground of privilege. Chapman v. U. S., 8 App. D. C. 302; 24 W. L,. R. 251. In proceedings respecting the custody of infants, courts act solely for the welfare of the child. Seeley v. Seeley, 35 W. L. R. 98. As to jurisdiction over infants of court of place where such infants are temporarily residing. See Slack v. Perrine, 9 App. D. C. 128; 24 W. L. R. 374. The jurisdiction of a court exercising authority may be inquired into in every other court when the proceedings of the former are relied upon and brought before the latter by the party claiming the benefit thereof. Morse v. Hine, 29 App. D. C. 433; 35 W. L. R. 334. As to settling and signing bill of exceptions after lapse of term at which trial took place. See Keely v. Moore, 22 App. D. C. 1 ; 31 W. L. R. 290. As to power of trial court to extend the time for filing the transcript of record on appeal. See Macfarland v. Byrnes, 19 App. D. C. 531 ; 30 W. L. R. 237. For purposes of jurisdiction in the Federal courts regard is had to the real rather than to the nominal party. Stewart v. Balto. & O. R. R. Co., 168 U. S. 445, Where acts complained of affect the plaintiff in his rights of corporator or stockholder, or as member of a mutual benefit or insurance company, or other corporation, and the acts are those of the corporation performed in the administration of its corporate affairs, especially when claimed to have been performed, or authorized to be performed, by virtue of au- thority derived from its charter or by-laws, the courts of another State or jurisdiction will not interfere or attempt to exercise jurisdiction to direct, control or revise corporate action. Clark v. Mutual Reserve Fund Life Ass'n, 14 App. D. C. 154; 27 W. L. R. 114. For the limitations of the powers and objects of a corporation the courts must look to its charter and not elsewhere. Colbert v. Speer, 24 App. D. C. 187 ; 32 W. L. R. 678. Power to review determination by incorporated dental society as to whether an act charged against a member is unprofessional within the meaning of its by-laws. See Bryant v. Dental Society, 26 App. D. C. 461; 34 W. L. R. 19. Courts cannot interfere with a judgment arrived at in good faith by constituted corporate authorities on a trial of a member of the corpora- tion regularly conducted. De Yturbide v. Metropolitan Club, 11 App. D. C. 180; 25 W. L. R. 463. Courts cannot sit as appellate tribunals to review the judgment of cor- porate authorities in such cases. //;. In the matter of admission of aliens, the conditions upon which they shall be permitted to remain and the regulation of proceedings for de- portation, courts have no jurisdiction save such as is expressly conferred by Congress. Chan Gun v. United States, 9 App. D. C. 290; 24 W. L. R. 764. A court of law has concurrent jurisdiction with a court of equity of a suit for an accounting. Patten v. Warner, 11 App. D. C. 149; 25 W. L. R. 448. "Court" — Court and Jury. 275 Courts will not inquire into the adequacy of the consideration for a promissory note, nor attempt to weigh the extent of it. Brown v. Ohio Nat. Bank, 18 App. D. C. 598 ; 29 W. L. R. 819. As to courts to which act of July 20, 1892, relative to suits in forma pauperis, is applicable. See McGrane v. McCann, 2 App. D. C. 221 ; 22 W. L. R. 101. As to conclusiveness on courts of judgment of Court of Claims. See Gray- v. Dis. of Col., 1 App. D. C. 20 ; 21 W. L. R. 387. Scope of review on habeas corpus. Palmer v. Colladay, 18 App. D. C. 426 ; 29 W. L. R. 532. . Mandamus will lie to compel a trial court to execute the mandate of an appellate court. Bx parte Mansfield, 11 App. D. C. 558 ; 25 W. L. R. 783. A trial court is not required to amend or modify a prayer presented in an objectionable form. Robinson v. Parker, 11 App. D. C. 132 ; 25 W. L. R. 497. As to following departmental construction of statutes. See United States V. Day, 27 App. D. C. 458 ; 34 W. L. R. 355. Daly v. Macfarland, 28 App. D. C. 552 ; 35 W. L. R. 81. Kerr v. Ross, 5 App. D. C. 241. See, also. Appeal and Error; Contempt of Court; Equity; Eccle- siASTicAi, Law; Infants; Judgments and Decrees; Jurisdiction; Jus- tices OF THE Peace; Orphans' Court; Patents; Pleading; Practice and Procedure; Probate Court; Rules of Court; Statutes. "COURT." As to distinction between terms "justice" and "court." See Elliott v. United States, 23 App. D. C. 456 ; 32 W. L. R. 293. COURT OF APPEALS D. C. See Courts. COURT OF CLAIMS. See Courts. COURTS MARTIAL. See Courts. COURT AND JURY. I. Province Generally. II. Direction of Verdict. III. Questions of Negligence. IV. Questions as to Contracts. V. Questions of Title. VI. Questions of Agency. VII. Question of Probable Cause. VIII. Question of Damages. IX. Construction of Statutes. X. Competency of Witnesses. XI. Generally. I. Province Generally. The provinces of the judge and jury are distinct and well defined, and any act of usurpation by the judge can be excepted to and reviewed on appeal. In re Gassenheimcr, 24 App. D. C. 312; 32 W. L. R. 808. While jurors are the recognized triers of questions of fact, the court has power to direct a verdict for one party or the other ; and when it has done so and its action has been approved by the unanimous judg- ment of the direct appellate court, the Supreme Court of the United States 276 Court and Jury. will defer to their concurring opinions. Leach v. Burr, 188 U. S. 510; 31 W. L. R. 148, The action of a trial court in submitting testimony to the jury will not ordinarily be interfered with on appeal. Helpenstine v. Downey, 7 App. D. C. 343; 24 W. L. R. 7. The submission to the jury of a question which should have been de- termined by the court is not reversible error where the verdict accords with the decision the court should have made. Keely v. Moore, 22 App. D. C. 9 ; 31 W. L. R. 339. II. Direction of Verdict. A trial court may direct a verdict in a clear case where the evidence, with all just inferences that may be drawn from it, would be insuf- ficient to support a contrary verdict. Stearman v. Balto. & O. R. R. Co., 6 App. D. C. 46 ; 23 W. L. R. 216. A court is justified in directing a verdict where the whole evidence offers no substantial dispute on material points and is of such conclusive character that it would be compelled to set aside a verdict returned in opposition to it. Guenther v. Metropolitan R. R. Co., 23 App. D. C. 493; 32 W. L. R. 422. In re Will of GriMth, 31 W. L. R. 15. When the evidence, and all proper inferences therefrom, is such that all reasonable men will arrive at the same conclusion thereon, the court is justified in directing a verdict. Olmstead v. Webb, 5 App. D. C. 38; 22 W. L. R. 801. As a general rule, where plaintiff has adduced evidence tending to prove a prima facie case in his favor and which, in the absence of evi- dence for the defendant, would entitle him to ask a verdict from the jury, the court may not withdraw his case from the jury, no matter what the testimony of the defendant may be. Warthen v. Hammond, 5 App. D. C. 167; 23 W. L. R. 50. The mere fact that parties contradict each other on immaterial and irrelevant matters does not make improper the direction of a verdict where the case has been proved in all its essentials. Green v. Stewart, 23 App. D. C. 570; 32 W. L. R. 409. As to duty of trial judge in respect of submission of evidence to the de- termination of the jury. See Adams z\ Railroad Co., 24 W. L. R. 364. Barbour v. Moore, 10 App. D. C. 30; 25 W. L. R. 55. III. Questions of Negligence. As a general proposition, a question of negligence must be submitted to the jury. Washington, A. & Mt. V. Ry. Co. v. Chapman, 26 App. D. C. 472; 34 W. L. R. 30. Questions of negligence and contributory negligence are ordinarily for the jury ; yet when the undisputed evidence is so conclusive that the court would be compelled to set aside a verdict returned in opposition to it, it may withdraw the case from the jury and direct a verdict. Burch V. Balto. & Pot. R. R. Co., 3 App. D. C. 346 ; 22 W. L. R. 401. The question of negligence is one of law for the court where but one inference can reasonably be drawn from the evidence. Dis. of Col. v. Moulton, 182 U. S. 576, reversing 15 App. D. C. 363. Court and Jury. 2'}'] Where there can be no substantial controversy in regard to the facts that constitute alleged contributory negligence, and when the facts are such that but one reasonable conclusion can be drawn, the question of such negligence is one of law for the court. Howes v. Dis. of Col., 2 App. D. C. 188 ; 23 W. L. R. 41. It is only where the facts are such that all reasonable men must draw the same conclusion from them, that the question of negligence or con- tributory negligence is considered one of law for the court. Balto. &• Pot. R. R. Co. V. Landrigan, 20 App. D. C. 135; 30 W. L. R. 595. Balto. & Pot. R. R. Co. V. Carrington, 3 App. D. C. 101; 22 W. L. R. 284. Wash. Gas Light Co. v. Poore, 3 App. D. C. 127 ; 22 W. L. R. 249. Balto. & Pot. R. R. Co. V. Webster, 6 App. D. C. 182; 23 W. L. R. 322; Barstow v. Capital Traction Co., 29 App. D. C. 362; 35 W. L. R. 238. Whenever there is any uncertainty as to the existence of either negli- gence or contributory negligence, the question is for the jury. Balto. & Pot. R. R. Co. V. Golway, 6 App. D. C. 143 ; 23 W. L. R. 308. Met. R. R. Co. V. Hammett, 13 App. D. C. 370 ; 26 W. L. R. 762. Met. R. R. Co. v. Snashall, 3 App. D. C. 420; 22 W. L. R. 377. When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. Warner v. Balto. & Ohio R. R. Co., 168 U. S. 339. It is only where the probative facts are undisputed and all reasonable minds can draw but one inference from them that the question of negli- gence becomes one of law for the court ; and where there is a conflict, though slight, in the evidence in respect both of the negligence of the defendant and the contributory negligence of the plaintiff, the question is one for the jury to determine. Ward v. Dis. of Col. 24 App. D. C. 524; 33 W. L. R. 71. As to when questions of negligence and contributory negligence are for the court and when for the jury. See U. S. Electric Co. v. Sullivan, 22 App. D. C. 115 ; 31 W. L. R. 406. Kight v. Met. R. R. Co., 21 App. D. C. 494; 31 W. L. R. 302. Cases in which question of neghgence and contributory negligence held properly for jury. Georgetown & Tenallytown Ry. Co. v. Smith, 25 App. D. C. 259; 33 W. L. R. 261. McDermott v. Severe, 25 App, D. C. 276; 33 W. L. R. 226; S. C. 202 U*. S. 600; 34 W. L. R. 577. Dotey v. Dis. of Col., 25 App. D. C. 232 ; 33 W. L. R. 293. Hawley v. Dis. of Col, 25 App. D. C. 1; 33 W. L. R. 150. Ward v. Dis. of Col, 24 App D. C. 524; 33 W. L. R. 71. O'Dwyer v. Market Co., 24 App. D. C. 81; 32 W. L. R. 438. Guenther v. Met. R. R. Co., 23 App. D. C. 493 ; 32 W. L. R. 422. U. S. Electric Co. v. Sullivan, 22 App. D. C. 115; 31 W. L. R. 406. Met. R. R. Co. V. Blick, 22 App. D. C. 194; 31 W. L. R. 457. American Sec. & T. Co. v. Lyons, 21 App. D. C. 122 ; 31 W. L. R. 112. Dis. of Col V. Whipps, 17 App. D. C. 415; 29 W. ly. R. 58. Walter v. Balto. &■ O. R. R. Co., 6 App. D. C. 20 ; 23 W. L. R. 226. IV. Questions as to Contracts. • In an action for breach of a contract of sale of a retail grocery busi- ness by vendor engaging in such business contrary to a covenant in the 278 Court and Jury. contract, it is for the jury to determine, under proper instructions by the court as to the meaning and construction of the contract, what constitutes a retail grocery business. Love v. Stidham, 18 App. D. C. 306; 39 W. L. R. 439. It is for the court, and not the jury, to determine the validity of an oral contract between railroad companies for the reciprocal use of tracks. Looney v. Metropolitan R. Co., 24 App. D. C. 510; 33 W. L. R. 39. When a contract is in writing, it is for the court to declare its meaning and legal effect, when requested so to do, and not leave it for the de- termination of the jury. Rheam v. Martin, 26 App. D. C. 181; 33 W. L. R. 807. In an action on a policy of accident insurance, held that the question of whether the death of assured was accidental was for the jury. Patterson V. Ocean Accident & G. Corp., 25 App. D. C. 46; 33 W. L. R. 274. In an action to recover damages for breaich of contract, the question whether the parties agreed to enter into arbitration is one of fact for the jury. Bailey v. Dis. of Col. 9 App. D. C. 360; 24 W. L. R. 745. V. Questions of Title. In a controversy between a husband and the next of kin of a married wo- man as to the right to administer her estate the question of whether the property was the sole and separate estate of the wife is one of law for the court. McCarthy v. McCarthy, 20 App. D. C. 195; 30 W. L. R. 419. While the facts upon which questions of what constitutes title, seniority of title and adverse possession under claim and color of title, are for the jury, the legal propositions themselves are for the court to decide. Reid V. Anderson, 13 App. D. C. 30; 26 W. L. R. 387. VI. Questions of Agency. A question of agency is one for the court where only one inference can be drawn from the evidence. Gas Light Co. v. Lansden, 172 U. S. 534, reversing 9 App. D. C. 508. Question of authority and agency of the vice president of a bank to bind it by the employment of counsel, held to be for the jury and a directed verdict error. Russell v. Washington Savings Banks, 23 App. D. C. 398 ; 32 W. L. R. 278. The question of whether one making payment of money to the agent of his creditor was justified in so doing, held one of fact for the jury and not one of law for the court. Held v. Walker, 25 App. D. C. 486; 33 W. L. R. 440. VII. Question of Probable Cause. In the absence of dispute as to facts, the existence or want of probable cause for a criminal prosecution is for the court. Spitccr z'. Friedlander, 14 App. D. C. 556; 27 W. L. R. 368. Submission to the jury, in an action for malicious prosecution, of ques- tion of probable cause, is not prejudicial error, where it appears that jury had not erred in point of law. Staples v. Johnson, 25 App. D. C. 155; 33 W. L. R. 183. Court and Jury. 275 VIII. Question of Damages. The amount of damages in personal injury cases rests very largely in the discretion of the jury, and the courts are slow to interfere with the verdict in such cases in the absence of plain evidence that the jury have abused the discretion vested in them. Holtsman v. Capital Construction Co., 33 W. L. R. 531. In action on bond where amount claimed is liquidated and defendant's pleas are insufficient, court may enter judgment for amount claimed with- out having damages assessed by jury. Bieber v. Cans, 24 App. D. C. 517; 33 W. L. R. 51. IX. Construction of Statutes. Where a statute is involved, and its construction is necessary for the guidance of the jury, it is a matter of the law for the court. In con- struing a statute, not the letter only but the spirit, reason and legislative intent must be regarded, and that, in all cases, presents a question for the court. Strathcr v. United States, 13 App. D. C. 132 ; 26 W. L. R. 469. X. Competency of Witnesses. Question of competency of witness called as an expert is one for the court. Raub v. Carpenter, 17 App. D. C. 505 ; 29 W. L. R. 122. The question of the competency of a witness to testify as to any matter of opinion is a preliminary one for the trial judge, and his deci- sion thereon is conclusive unless clearly erroneous as matter of law. Hamilton v. United States, 26 App. D. C. 282 ; 34 W. L. R. 558. The question of the competency of a witness is for the court but that of the weight and value of his opinion is solely for the jury. Shaffer v. United States, 24 App. D. C. 417; 33 W. L. R. 4. XI. Generally. While a trial judge should refrain from expressing himself as im- pressed in favor of a party, a remark of that character cannot be made the basis of an assignment of error if the law is correctly laid down and the jury left free to consider the evidence for themselves. Wash. Gas Light Co. V. Poore, 3 App. D. C. 127 ; 22 W. L. R. 249. As to cure of error arising from the court expressing, in the presence of the jury, an opinion as to the credibility of a witness. See Robinson V. Duvall, 27 App. D. C. 535 ; 34 W. L. R. 446. As to discretion of court in respect of latitude in cross-examination of witness called as an expert in a criminal case. See Norton v. United States, 15 App. D. C. 310 ; 27 W. L. R. 706. Whether or not a communicatior^ is privileged is a question of law for the court. Norfolk & Wash. Steamboat Co. v. Davis, 12 App. D. C. 306 ; 26 W. L. R. 261. Whether discontinuance of action has resulted from failure to serve summons is a question of law for the court and not one of fact for the jury. Tyler v. Messenger Co., 17 App. D. C. 85; 28 W. L. R. 710. The preliminary question whether, on the face of note, an alteration is material and so plainly suspicious as to warrant the requirement of some explanatory evidence as the condition of its admission, is for the deter- 28o Covenant. mination of the court; but when admitted after some such proof, the question whether the alteration was made before or after delivery, or with or without the consent of the several signers and indorsers, is one that must be submitted to the jury. Ofenstein v. Bryan, 20 App. D. C. 1 ; 30 W. L. R. 270. As to submission to jury of declarations of a deceased father in an ac- tion by his daughter to recover from his administrator on an implied contract to compensate the daughter for services. See Tuohy v. Trail, 19 App. D. C. 79; 30 W. L. R. 3. Question of voluntariness of admission by defendant is for the jury. Lorens v. United States, 24 App. D. C. 337 ; 32 W. L. R. 822. The rule in ordinary cases is that what is the proximate cause of an injury is generally a question of fact for the jury, to be determined as a fact in view of all the circumstances of fact attending it. Patterson v. Ocean Accident & G. Corp., 25 App. D. C. 46; 33 W. L. R. 274. Testimony of a scientific and expert nature are especially required to be passed upon by the jury. Casey v. National Union, 3 App. D. C. 510; 22 W. L. R. 433. Sufficiency of evidence for submission to jury of question of liability of messenger company as common carrier, for loss of money. White v. Postal Telegraph & C. Co., 25 App. D. C. 364; 33 W. L. R. 295. Where there is conflicting evidence as to the establishment of a road the question is for the jury. Dis. of Col. v. Robinson, 180 U. S. 92. In an action by the United States on the bond of a' disbursing officer for an alleged deficiency, the question of the contents of such officer's safe at the time it was taken possession of by the Government's agents held properly for the jury. Goff v. Unit^ed States, 22 App. D. C. 512; 31 W. L. R. 710. Evidence held sufficient to necessitate submission to jury of question of fraud in procurement of release of claim for personal injuries. Rock- well V. Capital Traction Co., 25 App. D. C. 98 ; 33 W. L. R. 338. As to discretion of trial court relative to scope and limitation of hypo- thetical questions. See Norton v. United States, 15 App. D. C. 310; 27 W. L. R. 706. As to discretion of court in determining the qualification of jurors. See Morton v. .United States, 15 App. D. C. 310; 27 W. L. R. 706. As to when court justified in directing verdict. See Scott v. Dis. of Col, 27 App. D. C. 413 ; 34 W. L. R. 420. As to reformation of verdict by the court. See Balto. &■ O. R. R. Co. V. Dougherty, 7 App. D. C. 378 ; 23 W. L. R. 832. As to right of plaintiff to have case submitted to jury. See Kohner v. Traction Co., 22 App. D. C. 181; 31 W. L. R. 442. See, also. Instructions to Jury; Jury and Jurors; Justices of the Peace ; Malicious Prosecution ; Practice and Procedure ; Verdict. COVENANT. Covenant will lie to recover the price of articles furnished under a partly performed contract where further performance has been waived. Dis. of Col. V. Camden Iron Works, 181 U. S. 453 ; affirming 15 App. D. C. 198 ; 27 W. L. R. 463. CovBRTuRi; — Creditors' Bill. 281 An action of covenant may be maintained against the District of Co- lumbia on a contract executed by the Commissioners under their hands and seals, notwithstanding the corporate seal is not affixed thereto. Dis. of Col. V. Camdem Iron Works, 15 App. D. C. 198 ; 27 W. L. R. 462. As to sufficiency of declaration in. See Hartman v. Ruby, 16 App. D. C. 45; 28 W. L. R. 155. As to effect of assumption of mortgage by grantee in deed. See Willard V. Wood, 1 App. D. C. 44; 21 W. L. R. 579. As to effect of covenant in deed of trust to keep the property insured and apply the proceeds of insurance. See Eastern Trust & Banking Co. V. American Ice Co., 14 App. D. C. 304 ; 27 W. L. R. 182. See Actions; Pleading. COVERTURE. Coverture is no excuse for fraud. Williams v. Paine, 7 App. D. C. 116 ; 23 W. L. R. 626. See Married Women. CREDITORS' BILL. I. Right to maintain. II. Prerequisites. III. Parties. IV. Lien Created by. V. In General. I. Right to Maintain. To maintain a creditor's bill one must have some interest in or equitable lien upon the fund or property sought to be subjected to his demand. Hess V. Horton, 2 App. D. C. 81 ; 22 W. L. R. 73. A bill by and against a non-resident to set aside a conveyance of real estate as fraudulent and to subject the property to the satisfaction of a foreign debt, is not maintainable where it is merely alleged that de- fendant had no property in the jurisdiction where suit brought which could be reached by any known process ; nor is such a bill maintainable, in any event, unless the debt sued on has been reduced to judgment. Hess v. Horton, 2 App. D. C. 81 ; 22 W. L. R. 73. An order of publication may issue in a suit by a simple contract creditor of a decedent to subject the latter's real estate to payment of the debt. Plumh V. Bateman, 2 App. D. C. 156 ; 22 W. L. R. 20. During the pendency of actions sci. fa. to revive a judgment, and of debt on the same judgment, to each of which the statute of limitations has been pleaded, the judgment creditor cannot maintain a bill against the representative of the deceased debtor to enforce the judgment and for discovery of the assets of the decedent. Mann v. MacDonald, 3 App. D. C. 456; 22 W. L. R. 385. A bill in equity to reach an equitable interest of the defendant in real estate may be maintained by a creditor who has not reduced his claim to judgment where the defendant is a non-resident, and where the bill al- leges that he has no property in this District or elsewhere subject to legal process. Supplee Hardware Co. v. Driggs, 13 App. D. C. 272; 26 W. L. R. 658. 282 Creditors' Bill. A plea to a judgment creditors' bill to the effect that the judgment sought to be enforced against an equitable interest of defendant ceased to be operative and effectual at a certain time for the reason that more than three years had elapsed after the return of a writ of Hen facias and no process had issued to revive the same, presents no defens.e, since the ground for a resort to equity being ample, the bill is the equivalent of an action at law upon the judgment. Rauh v. Hart, 24 App. D. C. 217; 32 W. L. R. 701. II. Prerequisites. The fact that the writ of execution on a judgment at law was returned nulla bona before return day, by order of the attorney of the judgment creditor, cannot defeat the jurisdiction of equity in a judgment creditor's suit. Mehler v. Cornwell, 3 App. D. C. 92 ; 22 W. L. R. 238. As to whether, when judgment debtor is insolvent and without property subject to execution, the issue of execution is a prerequisite to mainte- nance of creditor's bill. See Mehler v. Cornwell, 3 App. D. C. 92; 22 W. L. R. 238. The exhaustion of the personal estate of a debtor as such is not neces- sary before recourse can be had to equity to reach equitable interests in real estate. Clark v. Bradley Coal Co., 6 App. D. C. 437 ; 23 W. L. R. 419. Where a creditor prosecuted his claim to judgment at common law and caused execution to issue, which was returned wholly unsatisfied, the remedy at law is exhausted and a foundation laid for application to a court of equity. lb. III. Parties. To a creditor's bill to reach the real estate of a decedent the executor or administrator is generally a necessary party, but where there are no personal assets and consequently no executor or administrator, the bill is maintainable without him. Plumb v. Bateman, 2 App. D. C. 156; 22 W. L. R. 20. Courts will, for the purposes of a suit by local creditors against locally situated real estate of a decedent, where the bill alleges that he left no personal property here and that there was no local administration, assume that there are no executors or administrators. lb. Where several creditors unite in filing a creditor's bill, the death of one of them will not abate the suit and a bill of revivor is unnecessary. Young V. Kelly, 3 App. D. C. 296 ; 22 W. L. R. 313. A judgment creditor may intervene, in a suit brought by another judg- ment creditor to reach equitable assets of debtor though such suit does not in terms purport to be a creditor's suit. Bieber v. Fechheimer, 9 App. D. C. 548; 25 W. L. R. 18. To a bill to subject to the satisfaction of a judgment defendant's inter- est in a trust fund devised to himself and a co-trustee to distribute a por- tion of the income therefrom among certain named persons, including de- fendant, the co-trustee is a necessary party, but the beneficiaries other than defendant are not. Bryan v. May, 9 App. D. C. 383 ; 24 W. L. R. 758. Creditors' Bii^e,. 283 IV. Lien Created by. By the filing of a bill to enforce a judgment, and issue of process thereon, a lien is acquired by complainant upon the property sufficiently and specifically described and sought to be reached, and continues until the suit is disposed of; and such lien is not affected by the expiration of the lien of the judgment by lapse of time or by any other circum- stance not having direct relation to the suit in equity. Young v. Kelly, 3 App. D. C. 296; 22 W. L. R. 313. The filing of a creditor's bill, and service of process, creates a lien upon the property of the judgment debtor and the due prosecution of the suit would be a lis pendens affecting with notice all subsequent purchasers or incumbrancers. Weightman v. Critic Co., 4 App. D. C. 136 ; 22 W. L. R. 665. The filing of a bill in equity to reach the equitable estate or assets of a judgment debtor, and the issue of process thereunder, create a lien on the equitable estate or assets described in the bill and the amendments thereto ; and no subsequent disposition thereof can displace or defeat such lien. May V. Bryan, 17 App. D. C. 392; 29 W. L. R. 113. Where a general creditors' bill was filed by A. for administration of a decedent's estate, and B. filed a cross-bill in A's suit to satisfy a judgment against the executor of the decedent, and A., after a motion to strike out the cross-bill had been denied, and after failing to press a demurrer thereto, equiesced in an order consolidating his bill with the cross-bill and another suit, held, that A. had waived his claim that a lien could not be acquired by the cross-bill. Gottschalk Co. v. Live Oak Co., 7 App. D. C. 169; 23 W. L. R. 795. A judgment creditor on filing a bill for the vacation of an alleged fraudulent deed made by his debtor thereby acquires a lien on the prop- erty, which becomes fixed on final decree in his favor. Pulton v. Pletcher, 12 App. D. C. 1. As to lien acquired by filing. See Babbington v. Washington Brewery Co., 13 App. D. C. 527; 27 W, L. R. 22. Ohio Nat. Bank v. Berlin, 26 App. D. C. 218; 33 W. L. R. 726. V. In General. Where the original complainant in a judgment creditor's suit discon- tinues the cause upon payment of his claim, intervening creditors who have been allowed to become complainants are entitled to an order setting aside the discontinuance and reinstating the cause. La Tourette v. Fletcher, 6 App. D. C. 324; 23 W. L. R. 408. A defendant claiming that plaintiff has not exhausted his remedy at law must prove it affirmatively. Weightman v. Critic Co., 4 App. D. C. 136 ; 22 W. L. R. 665. A judgment at law is not merged in decree in judgment creditor's suit. Davis V. Sanders, 25 App. D. C. 26 ; 33 W. L. R. 101. In a suit to subject to satisfaction of a judgment the interest of the judgment debtor in the rents of "real estate in the possession of trustees, and also his interest in the real estate itself, a decree providing that unless the trustees within forty-five days pay the amount of the judgment, the interest of the judgment debtor in the property be sold, subject to 284 Criminal Appeals — Criminal Law. the rights of a mortgagee, who was not a party to the suit, was properly- entered. May V. Bryan, 17 App. D. C. 392 ; 28 W. L. R. 618. A decree in a judgment creditor's suit directing the payment by trustees, out of the distributive share of a judgment debtor in rents and profits of the trust estate in their hands, of the amount of complainant's judg- ment, it being shown by a report of the auditor that such share was more than suiificient for the purpose, was proper. Ih. Difficulty in realizing a just and adequate price for the equitable interest of a judgment debtor in property devised subject to certain contingencies is no ground for refusing a decree for the sale of such interest for the satisfaction of the judgment; but if the judgment can be satisfied by a sequestration of rents and profits in a reasonable time that method should be first resorted to. Bryan v. May, 9 App. D. C. 383 ; 24 W. L. R. 758. A decree in a suit to subject an equitable interest of the defendant to the satisfaction of a judgment at law affirmed where neither the answers filed by defendant (unsworn to and for this reason stricken from the files) nor a plea filed by him denied any substantial allegation of the bill nor alleged any sufficient ground of defense. Rauh v. Hurt, 24 App. D. C. 211; 32 W. L. R. 701. As to subjecting real estate in name of wife to satisfaction of judg- ment obtained against husband. See Thyson v. Foley, 1 App. D. C. 182 ; 21 W. L. R. 637. As to estoppel of creditor to claim title in debtor of property not in- cluded in property as described in bill. See Manogue v. Bryant, 15 App. D. C. 245; 27 W. L. R. 478. Effect of pendency of creditor's bill against owner of land, to relieve purchaser at judicial sale from compliance with his contract to purchase. See McCaffrey v. Little, 20 App. D. C. 116 ; 30 W. L. R. 580. CRIMINAL APPEALS. See Appeal and Error. CRIMINAL CONVERSATION. As to sufficiency of declaration in action for. See Vansant v. Lindsley, 2 App. D. C. 421; 22 W. L. R. 162. As to wife's right of action for crim. con. with her husband. See Dodge V. Rush, 28 App. D. C. 149 ; 34 W. L. R. 501. CRIMINAL LAW. Por particular crimes and misdemeanors see re- spective captions. I. Crimes and Misdemeanors. II. Mental Capacity. III. Rights and Privileges of Accused. IV. Accessories. V. Arrest. VI. Courts. VII. Trial in General. VIII. Reasonable Doubt and Presumption of Innocence. IX. Remarks of Counsel. X. Bill of Particulars. XI. Evidence. XII. Verdict. XIII. Penalties. XIV. Autrefois Acquit. XV. Limitations. XVI. In General. Criminai, Law. 285 I. Crimes and Misdemeanors. All crimes known to the common law, and the appropriate and settled forms of procedure relating thereto, except as otherwise provided by statute, are in force in this District. Hill v. United States, 23 App. D. C. 395; 31 W. L. R. 552. A party interfering with or obstructing the service of the process of a justice of the peace is liable to the penalty imposed by § 5398, Rev. Stat. In re Carson, 26 W. L. R. 152. The act of a hackman in occupying, for the solicitation of business, a portion of the space set aside by the Commissioners for the exclusive use of the P., W. & B. R. Co, is not made a criminal offense or misdemeanor, and he cannot be prosecuted therefor. Curry v. Dis. of Col., 14 App. D. C. 423 ; 27 W. L. R. 286. Official misconduct was an offense at common law, and is, in this Dis- trict, punishable as an offense against the United States; and a conspiracy to commit such an offense is punishable under § 5440, R. S. Tyner v. United States, 23 App. D. C. 324; 32 W. L. R. 258. Power of executive officers to make a violation of an executive regula- tion a criminal offense. Johnson v. United States, 26 App. D. C. 128 ; 33 W. L. R. 679. II. Mental Capacity. Voluntary intoxication neither excuses nor palliates crime. Harris v. United States, 8 App. D. C. 20; 24 W. L. R. 164. Ryan v. United States, 26 App. D. C. 74 ; 33 W. L. R. 516. Mental dullness, weakness or incapacity does not excuse from the con- sequences of crime, unless the defendant was at the time so mentally im- paired that he could not distinguish between right and wrong. Travers V. United States, 6 App. D. C. 450; 23 W. L. R. 469. A person sane up to the time of committing a crime and sane immedi- ately thereafter, is presumed to have been sane when the crime was com- mitted. Snell V. United States, 16 App. D. C. 501 ; 28 W. L. R. 518. III. Rights and Privileges of Accused. An accused person brought to trial acquires no vested right to have a particular member of the panel sit in the trial of his case, at least until he shall have been accepted and sworn. Horton v. United States, 15 App. D. C. 310; 37 W. L. R. 706. In a criminal prosecution the action of the trial court in allowing the jury to view the premises where the larceny was committed without the presence of either the prisoner or his counsel, even if error, is not a ground for reversing the judgment, no objection or exception being noted to such action at the trial. Price v. United States, 14 App. D. C. 391 ; 27 W. L. R. 320. Whether, if a view by the jury be allowed and had without the consent of the accused, without the presence of the accused and counsel, and with- out the presence of the court, and an exception be duly taken, to such ac- tion, such proceeding would be proper, qucere. lb. As to right to trial by jury of one prosecuted under a municipal ordi- nance for fast driving. See Bowles v. District of Columbia, 22 App. D. C- 321; 31 W. L. R. 539. 286 Criminal Law. The admission of the testimony of a witness to which objection is made on the ground that in the Hst of witnesses for the Government furnished the accused under § 1033, R. S., the address of one of them was incorrectly stated, is not error where it is apparent that the incorrect address was the result of a natural mistake, and that the accused well knew who the witness was and where he could be found, and was not in the slightest degree deceived by the error in the address as given. Horton v. United States, 15 App. D. C. 310; 27 W. L. R. 706. List of witnesses to be furnished defendant ; sufficiency of identifica- tion of parties named. See Shaffer v. United States, 24 App. D. C. 417 ; 33 W. L. R. 4. IV. Accessories. One who procures, commands, advises, instigates, or incites the com- mission of an offense^ although not personally present at its commission, is by the common law an accessory before the fact; and all such persons are made principals by §968 of the Code. Maxey v. United States, 35 W. L. R. 446. To constitute such a person a principal, under § 968 of the Code, it is not essential that any specific time or mode of committing the offense shall have been advised or commanded, or that it shall have been com- mitted in the particular way instigated ; nor is it necessary that there shall have been any direct communication between such person and the actual perpetrator of the offense. Ih. A woman upon whom the act of procuring a miscarriage is committed is not an accomplice of the one committing it, although done with her knowledge and consent ; nor is such a woman a principal. Construing §§ 809 and 908 of the Code. Thompson v.^ United States, 36 W. L. R. 98. V. Arrest. A person suspected of the commission of a felony may be arrested by a private individual without warrant, though at the peril of the party making the arrest if no felony has in fact been committed. Davis v. United States, 16 App. D. C. 442; 28 W. L. R. 471. Excess or abuse in the mode of detention of an accused person cannot be remedied by writ of habeas corpus, except in a grave and unusual case. Closson V. Arnves, 7 App. D. C. 460 ; 34 W. L. R. 71. VI. Courts. The two branches of the criminal court are not separate and independent tribunals, but are component parts of the Supreme Court of the District, and a criminal may be properly arraigned in one and tried and convicted in the other. Grain v. United States, 2 App. D. C. 549; 22 W. L. R. 208. Sec. 23, ch. 35, Comp. Stat. D. C, giving the criminal court jurisdiction •of all crimes and misdemeanors committed in the District, not lawfully triable in any other court, refers only to other courts within the District. Hyde v. Shine, 199 U. S. 62. As to jurisdiction of police court. See Deffer v. Kimball, 7 App. D. C. 499 ; 24 W. L. R. 82, Criminai, Law. 287 VII. Trial in General. Where the proceedings of a trial in the police court for a violation of the Sunday liquor law were interrupted to receive the verdict of the jury in a prosecution of another person charged with a violation of the same statute, and such verdict being "not guilty" the court in severe terms denounced the action of the jury as being wholly in disregard of the in- structions of the court in that case, held not a ground for exception by the defendant in the pending case. Lehman v. Dis. of Col., 19 App. D. C. 217; 30 W. L. R. 87. In all cases involving less than capital punishment, when a trial has once been begun, the flight or escape of an accused person does not pre- clude the court from proceeding with the cause and receiving the verdict of the jury in the absence of the defendant so caused by his own wrongful act. Falk V. United States, 15 App. D. C. 446; 27 W. L. R. 815. The examination, during the progress of a trial, of two of the jurors concerned in it on their voir dire as to their competency to sit as jurors in a murder case thereafter next to be called, even if it be an irregularity, is not ground for reversal when the rights of the defendant were not thereby prejudiced. lb. An application to require the prosecution to elect upon which of several •counts in an indictment a defendant shall be tried is addressed to the sound judicial discretion of the trial court. Lorenz v. United States, 24 App. D. C. 337; 32 W. L. R. 822. Two indictments charging separate violations of § 5480, Rev. Stat., can not be consolidated for trial when together they present offenses not committed within the same six calendar months. Bass v. United States, 20 App. D. C. 232 ; 30 W. L. R. 546. As to removal of accused person from one district of the United States to another, for trial. See Benson v. Henkel, 198 U. S. 1. Beavers v. Haubert, 198 U. S. 77. Hyde v. Shine, 199 U. S. 62. VIII. Reasonable Doubt and Presumption of Innocence. The defendant in a criminal case is entitled to the presumption of innocence and the benefit of every reasonable doubt that may arise throughout the case, and the court must so instruct the jurj'. LeCointe v. United States, 7 App. D. C. 16 ; 23 W. L. R. 482. It is error for the court to charge the jury that, if it appeared to their judgment and satisfaction, looking at all the evidence, that it was reason- able to conclude that the defendant was innocent, they should acquit ; and if not reasonable so to conclude, they should convict. lb. An instruction that "the law presumes the defendant to be an upright, honest man of integrity and good character, and the jury are bound to assume him such a man in considering the evidence,'' is properly refused where no evidence of good character was offered by defendant. In such case, all that defendant is entitled to is a charge upon the presumption of innocence, and the necessity of the Government overcoming that pre- sumption by proof of guilt beyond a reasonable doubt. Fields v. United States, 27 App. D. C. 433; 34 W. L. R. 382. IX. Remarks of Counsel. Permitting the us? of invective by a pro.secuting attorney is not re- 288 Criminal L,aw. versible error where it is founded on the evidence in the case and relates to the final conclusion which that evidence tends to establish; and where the court promptly intervened and the remark was at once withdrawn, and no further action was asked, such remark can not be assigned as error. PieUs V. United States, 27 App. D. C. 433 ; 34 W. L. R. 382. Where in his argument to the jury the prosecutor remarked that de- fendant "did not even try to prove a good reputation," which was imme- diately withdrawn on intervention by the court, and no further action was asked by defendant, such remark cannot be assigned as error. lb. Certain remarks by special counsel for the Government held such as to have required a reversal of the judgment, but for the fact that the trial court interrupted the argument, on objection by counsel for de- fendants, no further action being requested. Lorenz v. United States, 24 App. D. C. 337; 33 W. L. R. 823. While a party accused of crime may refrain from testifying in his own behalf and no adverse inference is allowed to be drawn therefrom; his failure to introduce any evidence as to his whereabouts on the day the crime is alleged to have been committed is a proper subject of comment by counsel for the Government, and such comment is not a cause for the withdrawal of a juror and continuance of the case, especially where, on objection, counsel disclaimed referring in his remarks to the failure of the accused to testify and the jury are instructed to disregard any such meaning. Price v. United States, 14 App. D. C. 391 ; 27 W. L. R. 320. X. Bill of Particulars. In a prosecution for selling liquors without license the court may, on motion of defendant, require a bill of particulars of the times, places and circumstances of the offense to be filed; but such action is discretion- ary with the trial court and its refusal is not subject to review. Laucr V. Dis. of Col, 11 App. D. C. 453; 26 W. L. R. 72. The refusal or allowance of a motion for a bill of particulars is within the discretion of the trial court and is not the subject of appeal. Bass v. United States, 20 App. D. C. 232 ; 30 W. L. R. 546. XI. Evidence. Articles which may supply evidence of the guilt of an accused person, found in his possession or under his control, may be seized by the officers making the arrest and retained to be used as evidence against the ac- cused, subject to the power and direction of the court having cognizance of the alleged crime. Mutual Commission Co. v. Moore, 13 App. D. C. 78; 26 W. L. R. 421. That articles are owned by a corporation will not exempt them from seizure and detention for purposes of evidence where they are in the pos- session of parties charged with crime and allowed to be used for an il- legal purpose by the alleged owners, especially where the accused them- selves compose the corporation. lb. In criminal cases parol evidence of the contents of a written instrument in possession of the accused is admissible without notice to him to pro- duce the instrument. O'Brien v. United States, 37 App. D. C. 263; 34 W. L. R. 546. Criminal Law. 289 Evidence tending to show that a person accused of crime has commit- ted or attempted to commit another wholly independent crime is inadmis- sible; but evidence of other criminal acts so blended or connected with the one charged that proof of one incidentally involves the other, is admis- sible. Ryan v. United States, 26 App. D. C. 74 ; 33 W. L. R. 516. Under § 1067 of the Code, providing that the fact of a party's previous conviction of crime may be given in evidence to affect his credibility, the term conviction denotes the judgment of a court; and where the court, in the exercise of its power, sets aside a verdict of guilty, there is no convic- tion. Thompson v. United States, 36 W. L,. R. 98. Evidence that on a former trial of a criminal case the defendant had endeavored to procure the corruption of a juror, is admissible as tending to show consciousness of guilt on his part, but circumstances calculated merely to raise a strong presumption that defendant contemplated tam- pering with the jury and furnished money for the purpose, held insuf- ficient proof of the fact to justify the admission of such evidence; and where such evidence was admitted it was error for the court to refuse a motion to strike it out. Gassenheimer v. United States, 26 App. D. C. 432 ; 34 W. L. R. 80. When one or more of the facts essential to conviction depends upon the evidence of detectives specially employed to procure it, it is proper for the court to call attention in some way to the possible bias or prejudice of such witnesses, as compared with those who are apparently disinter- ested, but the form such instruction shall take is largely a matter of discre- tion with the trial justice. lb. On the trial of a person accused of larceny, a detective called as a witness by the Government, was asked: "During that time (his service as a detective) have you had much or little experience in the detection and arrest of criminals?" to which he replied that he had much experi- ence, and also that he knew the accused, and had seen him on various occasions and also had seen him in this city on the day of the larceny. Held, that the question was not objectionable as involving an implied at- tack of a criminal nature upon the character of the accused. Price v. United States, 14 App. D. C. 391; 27 W. L. R. 320. In criminal law it is not generally necessary to prove time precisely as stated; and an allegation of time is not material where the offense has otherwise been sufficiently alleged. Howgate v. United States, 7 App. D. C. 317 ; 24 W. L. R. 518. It is not necessary in criminal prosecutions generally to prove the com- mission of the offense on the day charged in the indictment, or upon any other day certain, but proof of any day prior to the indictment and within the period of limitations is sufficient. Y eager v. United States, 16 App. D. C. 356; 28 W. L. R. 554. Proof of the actuating cause of an insane paroxysm cannot be considered by the jury unless they find from the evidence that there was at the time insanity or the latent tendency to insane paroxysm. Taylor v. United States, 7 App. D. C. 27; 33 W. L. R. 433. Conversations between a witness and a defendant in a criminal case are not competent evidence on behalf of defendant when they constitute 290 Criminal Law. no part of the transaction for which he is arraigned ; and the general rule is not varied where the defense is insanity. lb. Where a witness for the prosecution gives a part of a conversation be- tween himself and defendant, it is competent for defendant upon cross- examination to give the entire conversation. Bass v. United States, 20 App. D. C. 232 ; 30 W. L. R. 546. Where an officer having a prisoner in custody said to him, "You have been telling a pack of lies ; now you had better tell the truth,'' where- upon the prisoner made a confession, it was held that the confession was involuntary and it was error to admit it in evidence and to submit to the jury the question of whether or not it was voluntary. West v. United States, 20 App. D. C. 347 ; 30 W. L. R. 582. Evidence, however strong, the practical effect of which is to set up nothing more than a defense of alibi, raises an issue that can only be tried by the court having the exclusive jurisdiction to convict or acquit of the crime. Hayes v. Palmer, 21 App. D. C. 450 ; 31 W. L. R. 271. The exclusion of certain questions asked by defendant of witnesses pro- duced by him on the ground that they were leading, held not reversible error where the witnesses subsequently testify to the facts sought to be elicited by the questions. Lyles v. United States, 20 App. D. C. 559 ; 31 W. L. R. 67. Admissiblity in evidence of confessions of accused. Davis v. United States, 18 App. D. C. 468 ; 29 W. L. R. 574. As to declarations coming within principle of the res gestae. See Snow- den V. United States, 2 App. D. C. 89 ; 22 W. L. R. 74. As to scope of cross-examination of a witness called as an expert in a criminal case. See Horton v. United States, 15 App. D. C. 310; 27 W. L. R. 706. As to admissibility of evidence in prosecution for allowing a dangerous dog to run at large. See Tubins v. Dis. of Col, 21 App. D. C. 267 ; 31 W. L. R. 460. As to admissibility of photograph in criminal prosecution. See Shaffer V. United States, 24 App. D. C. 417 ; 33 W. L. R. 4. Requirng accused to give evidence against himself or furnish evidence to be so used. See lb. As to variance between allegations of indictment and proof. Davis v. United States, 18 App. D. C. 468 ; 29 W. L. R. 574. XII. Verdict. In a criminal case, a general verdict and judgment on an indictment con- taining several counts will not be reversed on error if any one of the counts is good and warrants the judgment. Posey v. United States, 28 App. D. C. 302; 34 W. L. R. 565. As to qualifying verdict of murder. See Strather v. United States, 13 App. D. C. 132 ; 26 W. L. R. 469. Smith V. United States, 13 App. D. C. 155; 26 W. L. R. 476; Winston v. United States, 13 App. D. C. 157; 26 W. L. R. 476. Horton v. United States, 15 App. D. C. 310; 27 W. L. R. 706. Criminai, Law. 291 XIII. Penalties. The large powers of the courts should not be used to legislate a different and heavier penalty than the law intended. Harris v. Nixon, 27 App. D. C. 94 ; 34 W. L. R. 179. There is no error in a judgment in a criminal case making the term of imprisonment to commence at the expiration of a term imposed as a punishment for a separate and distinct offense; and where this forms part of the sentence the judgment is sufficiently certain as to the time when the successive sentences are to be carried into execution. Harris v. Lang, 27 App. D. C. 84; 34 W. L. R. 176. The words "punishable by imprisonment in the penitentiary," in § 798 of the Code, include not merely offenses that can Only be punished by such imprisonment, but such as may be so punished. United States v. Bvans, 28 App. D. C. 264; 34 W. L. R. 739. Under a statute fixing the penalty for a certain crime at imprisonment and labor in the penitentiary for a given period, the term of the punish- ment begins only from the time the party arrives at and is imprisoned in the penitentiary, and not from the date of the sentence. Price v. United States, 14 App. D. C. 391 ; 27 W. L. R. 320. The provision of § 934 of the Code, that "cumulative sentences aggre- gating more than one year shall be deemed one sentence within the mean- ing" of the provision of the same section prescribing the place of im- prisonment, has no reference to a sentence to pay a pecuniary fine fol- lowed by imprisonment in default of payment, but only to cases in which the punishment is to be imprisonment. Harris v. Lang, 27 App. D. C. 84; 34 W. L. R. 176. Sentences are not cumulative merely because two imprisonments were made successive in point of time, the convictions being upon two separate informations charging two separate and distinct offenses, and a definite sentence having been imposed in each case. Harris v. Lang, 27 App. D. C. 84; 34 W. L. R. 176. Harris v. Nixon, 27 App. D. C. 94; 34 W. L. R. 179. A prisoner under an excessive sentence cannot secure his discharge on habeas corpus until he has performed so much of the judgment, or served so much of the sentence as the court could lawfully impose. Harris v. Lang, 27 App. D. C. 84; 34 W. L. R. 176. As to power of police court to withhold or suspend sentence beyond term at which rendered. See Ih. As to nature of penalty imposed for violation of municipal ordinance. See Bowles v. Dis. of Col, 22 App. D. C. 321 ; 31 W. L. R. 539. Sentence for criminal libel held not a cruel and unusual punishment within the constitutional prohibition. Raymond v. United States, 25 App. D. C. 555 ; 33 W. L. R. 514. XIV. Autrefois Acquit. A former conviction of assault and battery is not a bar to a subsequent indictment for murder, where the party assaulted dies within a year and a day. Hopkins v. United States, 4 App. D. C. 430; 22 W. L. R. 838. The discharge of an accused on abandonment of prosecution as provided by § 989 of Code, is final, and relieves him from further accountability 292 Criminai, Law. for the offense, and not merely from the pending prosecution. United States V. Cadarr, 24 App. D. C. 143 ; 33 W. L. R. 486. As to when accused entitled to discharge on plea of former acquittal. See Nordlinger v. United States, 24 App. D. C. 406 ; 32 W. L. R. 810. As to the test of the identity of offenses on a plea of former acquittal. See lb. XV. Limitations. Section 939 of Code is not a statute of limitations and does not repeal or affect § 1044 Rev. Stat., and one who has made application under § 939 to be released from bail may be held to answer upon an indictment found more than nine months after he was arrested and held to bail. United States v. Cadarr; 197 U. S. 475, reversing 24 App. D. C. 143. The provisions of § 939, Code D. C, apply to proceedings pending when the Code went into effect. United States v. Cadarr, 24 App. D. C. 143; 33 W. L. R. 486. Sec. 939 of the Code does not apply to a case where an indictment was returned within the time prescribed, upon which the accused was released on bail, and more than nine months thereafter a second indictment charg- ing him in an amendatory manner with the same offense was returned by the grand jury. United States v. Hayman, 24 App. D. C. 158; 32 W. L. R. 491. On May 8, 1901, defendant was held to bail to await the action of the grand jury, and no further proceedings were had until March 31, 1902, when an indictment was returned against him. Held, that the indictment was properly quashed under § 939, Code D. C. United States v. Hartman, 24 App. D. C. 156 ; 32 W. L. R. 490. Under the provisions of § 1045, Rev. Stat, a party fleeing from justice before the bar of the statute of limitations takes effect, can have no benefit whatever from it. Homgate v. United States, 7 App. D. C. 317; 24 W. L. R. 518. One escaping from the custody of the law, whether against the will or with the connivance of his keepers or not, and becoming a fugitive from justice, is not entitled to the benefit of the bar of the statute of limitations. lb. XVI. In General. In the administration of the criminal law in courts of the United States, the trial judge charges the jury as to the whole case, both the law and the facts, but leaving the jury free to find the facts according to the exercise of their own judgment. Strather v. United States, 13 App. D. C. 132; 26 W. L. R. 469. It is competent for the grand jury, without rehearing witnesses, to re- turn a second indictment against the same person, wherein they merely correct a formal description in the first. Nordlinger v. United States, 24 App. D. C. 406; 32 W. L. R. 810. As to knowledge by defendant to justify conviction in prosecution for allowing a dangerous dog to run at large. Tubins v. Dis. of Col., 21 App. D. C. 267; 31 W. L. R. 460. As to selection and qualifications of grand and petit jurors. See Clark V. United States, 19 App. D. C. 295 ; 30 W. L. R.. 70. Croquet — Cross-Bii. C. 379; 25 W. L. R. 280. The measure of damages for failure of brokers to purchase stock for which an order has been accepted by them, no purpose being indicated that defendants should hold and carry the stock for a rise in value and sell again when directed, held that directly and naturally resulting from 302 Damages. the failure of the defendants to purchase and deliver the stock, and not the sum for which a subsequent purchase might be effected or the profit that might be realized from a subsequent sale. Gurley v. MacLennan, 17 App. D. C. 170; 28 W. L. R. 830. Right of action to recover damages for breach of contract. Hughes v. Brennati Construction Co., 24 App. D. C. 90 ; 32 W. L. R. 393. IV. Recovery on Bonds. Interest in the nature of damages for the detention of money is re- coverable in an action on a bond and is not limited to the penalty thereof. Gotf V. United States, 22 App. D. C. 512 ; 31 W. L. R. 710. Counsel fees incurred in defending proceedings for enforcement of me- chanics' liens cannot be recovered as legal damages, in action on bond of contractor, unless expressly provided for in the contract. Donovan V. Johnson, 13 App. D. C. 356; 26 W.L. R. 714. In an action by the United States on a bond made to them, conditioned for the faithful performance of a contract made with Indians, whereby the obligors agreed to pay the Indians a stated compensation and return them to their reservation without expense to the United States, recovery may be had of sums due the Indians as wages and damages for breach of the condition and also sums expended by the United States in return- ing the Indians to their reservations. United States v. Pumphrey, 11 App. D. C. 44; 25 W. L. R. 417. In an action on a bond given to secure the performance of a building contract to recover damages for defective work, the measure of damages is the difference between what the houses were worth as in fact com- pleted and what they would have been worth if completed as required by the contract. Mercantile Trust Co. v. Hensey, 27 App. D. C. 210; 34 W. L. R. 206. V. Pleading. General allegations of damages cannot be allowed to contravene specific statements of the precise amount and character of damages contained in the same pleading. Denison v. Lewis, 5 App. D. C. 328 ; 23 W. L. R. 138. Under a general allegation of damages in an action for death by wrongful act, evidence is admissible as to all damages which naturally and necessarily would result. Dis. of Col. v. Wilcox, 4 App. D. C. 90; 22 W. L. R. 623. As to allegation of damages in action for death by wrongful act under act of Feb. 17, 1895. See Dis. of Col. v. Wilcox, 4 App. D. C. 90; 22 W. L. R. 623. As to necessity for alleging special damage in action for libel. See Norfolk & Wash. Steamboat Co. v. Davis, 12 App. D. C. 306; 26 W. L. R. 261. Damages for a mere tort can not be made the basis of a plea of set-off. McGuire v. Gerstley, 26 App. D. C. 193 ; 33 W. L. R. 754. An allegation in a declaration in an action for personal injuries, that the pain and suffering continue to exist and cause expense, is sufficient to extend the scope of recovery. Hubbard v. Perlie, 25 App. D. C. 477; 33 W. L. R. 492, Damages. 303 VI. Damnum absque injuria. An injury to land bordering on die Potomac river caused by the waters of the river holding in suspension or solution sewage deposited therein from a public sewer, with the resultant foul odors carried over the land by the air, is a mere consequential matter resulting from the exer- cise of the right in Congress to use the bed of the river for the discharge of the sewage of the City of Washington, and is damnum absque injuria. Seufferle v. Macfarland, 28 App. D. C. 94 ; 34 W. L. R. 526. Where the plant of a contractor of a railroad company, in doing work which the railroad company is required by law to do, constitutes a nui- sance and results in injury to an adjoining property owner, such dam- ages are not damnum absque injuria, and the contractor is liable even though the plant was carefully operated. Filtration Co. v. Wynkoop, 29 App. D. C. 495 ; 35 W. L. R. 418. Dismissed in 207 U. S. 582. Injuries to abutting property caused by a railroad changing the grade of the street is not damnum absque injuria. Dana v. Rock Creek R. R. Co., 7 App. D. C. 482 ; 24 W. L. R. 24. Where one filling up ravines in his own land fails to take proper pre- caution to confine the earth placed therein and injury results to a neighbor, the case is not one of damnum absque injuria, but the owner is liable for such injury. American Sec. & Trust Co. v. Lyons, 21 App. D. C. 122; 31 W. L. R. 112. VII. Liquidated. Parties may stipulate in advance that a certain sum shall be the dam- ages which one shall forfeit to the other for failure to perform the con- ditions of a valid contract; and especially is this true when the damages to be sustained are uncertain in amount and cannot be readily ascer- tained. Dis. of Col. V. Harlan & Hollingsivorth Co., 36 W. L. R. 82. Liquidated damages provided for in a contract are recoverable without proof of loss. Mercantile Trust Co. v. Hensey, 27 App. D. C. 210; 34 W. L. R. 206. VIII. Punitive. If it be shown that the defendant in an action of tort acted wantonly or oppressively, or with such malice as implies a spirit of mischief or criminal indifference to civil obligations, the jury may award punitive in addition to compensatory damages. Woodward v. Ragland, 5 App. D. C. 220; 23 W. L. R. 81. Punitive damages cannot be assessed against a principal for the tort of his agent unless he participated in the wrongful act, • or expressly or impliedly authorized or ratified it. lb. IX. Apportionment of. Where the material evidence in an action by a property owner against a construction company doing work for a railroad company, for injuries resulting from a nuisance created by its plant, shows that the injuries were so caused, although it appeared that the railroad operated several locomotives which emitted smoke, the defendant is not entitled to a ver- dict on the ground that the damages resulting from the respective causes 304 Damnum Absque Injuria — Death. could not be separated. Filtration Co. v. Wynkoop, 29 App. D. C. 495; 35 W. L. R. 418. Dismissed in S07 U. S. 583. X. Release of Claim for. As to sufficiency of execution of release of claim for personal injuries. See Rockwell v. Traction Co., 35 App. D. C. 98 ; 33 W. L. R. 338. As to rescission for fraud of release of claim for damages. See Lyons V. Allen, 11 App. D. C. 543 ; 26 W. L. R. 50. XI. In General. As to recovery of damages for wrongful suing out of injunction. See Hiitchins v. Munn, 38 App. D. C. 371; 34 W. L. R. 704; S. C. 209 U. S. 246; Dodge v. Cohen, 14 App. D. C. 583; 27 W. L. R. 334; Washington Brewery Co. v. Cosgrove, 34 W. L. R. 68. As to damages recoverable under plea of set-off in an action for rent claimed to be due under a lease. See Okie v. Person, 23 App. D. C. 170; 32 W. L. R. 103. As to right of recovery for loss occasioned by use of article of food fur- nished in breach of implied warranty of quality. See Armour & Co. v. Gundersheimer, 23 App. D. C. 210; 32 W. L. R. 117. As to damages for which action of deceit maintainable. See Jackson & Sharp Co. V. Pay, 20 App. D. C. 105 ; 30 W. L. R. 378. Entry of judgment by court without having damages assessed by jury in action on bond where amount claimed is liquidated, and defendant's pleas ars insufficient. Bieber v. Cans, 24 App. D. C. 517 ; 33 W. L. R. 51. As to interference by court with verdict of jury in respect of damages ■ awarded. See Holtzman v. Capital Construction Co., 33 W. L. R. 531. Assignment of error as to trial court's instruction relative to element of damages not considered on appeal where no objection made thereto or counter instruction asked. Dis. of Col. v. Dietrich, 23 App. D. C. 577; 32 W. L. R. 360. See, also, Condemnation of Land; Evidence; Negligence; Patents. DAMNUM ABSQUE INJURIA. See Damages; Property Rights. DANGEROUS WALLS. Power of police court to decide as to dangerous condition of wall condemned by inspector of buildings. See Shoemaker v. Entwisle, 3 App. D. C. 252; 22 W. L. R. 316. As to removal of. See Dis. of Col. v. Mattingly, 28 App. D. C. 176; 34 W. L. R. 670. DEAD ANIMALS. See Animals. DEADLY WEAPONS. A brickbat held to be a deadly weapon. • Hopkins v. United States, 4 App. D. C. 430 ; 23 W. L. R. 838. DEATH. To raise the presumption of the death of a person from the fact that he has not been heard from nor of for a period of seven years, Death by Wrongeui, Act. 305 there must be some proof of inquiry of persons and at places where news of him, if living, would probably be had. Posey v. Hanson, 10 App. D. C. 496; 25 W. L. R. 399. As to absence raising presumption of death. See Howard v. Bvans, 24 App. D. C. 127 ; 32 W. L. R. 406. As to presumption of. See Hamilton v. Rathbone, 9 App. D. C. 48; 24 W. L. R. 390. There is no presumption of survivorship as to persons losing their lives in a common disaster. Paul v. Hulick, 18 App. D. C. 9 ; 29 W. L. R. 171. In the absence of evidence on which to base a judicial opinion, the order of the death of two persons perishing in the same disaster must be considered judicially unascertainable. lb. Effect of death of one of several creditors uniting in a creditor's bill. See Young v. Kelly, 3 App. D. C. 296 ; 23 W. L. R. 313. As to effect of death of plaintiff in replevin after delivery of goods. See Corbett V. Pond, 10 App. D. C. 17 ; 25 W. L. R. 33. As to substitution of personal representative of deceased party to suit. See Danenhower i). Ball, 8 App. D. C. 137 ; 24 W. L. R. 331. As to abatement of actions by. See lb. Effect of death of drawer of negotiable instrument before its delivery and acceptance. See Drum v. Benton, 13 App. D. C. 245 ; 26 W. L. R- 643. The burden of proof is upon him who asserts the death of a person standing in the way of his inheritance; and a person once shown to exist will be presumed to be alive for such time at least as is not contrary to the rule of longevity. Posey v. Hanson, 10 App. D. C. 496 ; 35 W. L. R. 299. As to effect of death of trustee named in will, under whose supervision a bequest was to be administered. Colbert v. Speer, 24 App. D. C. 187 ; 32 W. L. R. 678. DEATH BY WRONGFUL ACT. The action provided by the act of Feb. 17, 1885, cannot be maintained where the alleged wrongful act and death occurred out of the District. Stewart v. Balto. & O. R. R. Co., 6 App. D. C. 56 ; 23 W. L. R. 247. The administrator of a person killed in the State of Maryland cannot maintain an action in the District of Columbia to recover for the benefit of his intestate's widow the damages allowed by the Code of Maryland in such cases. Stewart v. Balto. & O. R. R. Co., 6 App. D. C. 56; 23 W. L. R. 247; reversed in 168 U. S. 445. As to who may maintain action under act of Feb. 17, 1885. See Fer- guson V. Wash. & G. R. R. Co., 6 App. D. C. 535 ; 33 W. L. R. 407. In an action brought under the Act of Feb. 17, 1885, it is not necessary to allege special pecuniary loss and a general allegation of damages will be sufficient. Dis. of Col. v. Wilcox, 4 App. D. C. 90 ; 33 W. L. R. 623. Under a general allegation of damages in an action for death by wrong- ful act, evidence is admissible as to all damages which naturally and necessarily would result. lb. Non-prejudicial error is not reversible error and in an action for death by wrongful act brought by a niece' of deceased as administratrix, where it appeared that deceased also left a nephew, the restriction of the right of 3o6 Debtor and Creditor. such administratrix to damages sustained by her as niece, irrespective of any claim by the nephew, is not ground for reversal at the instance of the defendant. lb. As to granting letters of administration for purposes of suit for. See Block & Tile Co. v. Mackey, 15 App. D. C. 410; 28 W. L. R. 35. See Actions; Damages; Negugence. DEBTOR AND CREDITOR. A bequest by a mother to her children of more than her indebtedness to them, will not be considered a satisfaction thereof. Patten v. Glover, 1 App. D. C. 466; 21 W. L. R. 794. An advancement to a child by a parent or one in loco parentis will be presumed to be a satisfaction of a debt due the child. lb. In the distribution of the assets of an insolvent estate among creditors, justice often requires preferences, and the equality to be sought is gen- erally that between members of a class rather than between different classes. Gilbert v. Wash. Ben. Endowment Assn., 21 App. D. C. 344; 31 W. h. R. 190. Except in the matter of the administration of the estates of decedents, recourse to real estate for the satisfaction of debts is not deferred to the exhaustion of personal property. Clark v. Bradley Coal Co., 6 App. D. C. 437; 33 W. L. R. 419. Commitment for contempt in disobedience of order for payment of alimony is not imprisonment for debt. Tolman v. Leonard, 6 App. D. C. 224; 23 W. L. R. 343. A creditor may in equity follow the assets of an intestate debtor into the hands of his distributees. Glenn v. Sothoron, 4 App. D. C. 125 ; 22 W. L. R. 649. As to right of creditors of a husband to pursue his interest in prop- erty conveyed to wife but partly paid for out of his own funds in fraud of creditors. See Turner v. Gottwals, 15 App. D. C. 43 ; 27 W. L. R. 372. As to burden of proof of bona tides of conveyance to wife attacked as in fraud of husband's creditors. See lb. As to conveyance by debtor in fraud of creditor. See Bokel-Gwynn- McKenney Co. v. Costello, 22 App. D. C. 81 ; 31 W. L. R. 374. As to arrest of debtor for conveying property in fraud of creditor. See Costello V. Palmer, 20 App. D. C. 230; 30 W. L. R. 402. As to relation of client and attorney. See Smith v. Cook, 10 App. D. C. 487; 25 W. L. R. 251. As to relation between endowment association doing an insurance busi- ness by way of assessments and representatives of deceased certificate holder. See Gilbert v. Endowment Assn., 21 App. D. C. 344; 31 W. L. R. 190. As to right of creditor to split up cause of action so as to subject debtor to several different actions. See Sincell v. Davis, 24 App. D. C. 218 ; 32 W. L. R. 746. See Assignments for Benefit of Creditors; Attachment; Creditor's- BiLt; Fraudulent Conveyances, DECEIT — DECLARATIONS. 307 DECEIT. To maintain an action of deceit it must not only be made to appear that the plaintiff has been induced to take or refrain from action by reason of the wilful or reckless misrepresentation of a material fact, but also that through such action or its omission he has sustained some appre- ciable damage. Jackson & Sharp Co. v. Pay, 20 App. D. C. 105 ; 30 W. L. R. 378. The averments of a declaration in an action of deceit in respect of the damages sustained held insufficient. lb. Where a party, for the pvirpose of inducing a bank to make a loan to S., addressed a letter to its president, stating that S. was worth, to his personal knowledge, $75,000, over $60,000 in real estate, and the rep- resentation proved to be false, S. at the time being largly indebted — to the writer among others — if not insolvent, and a loss resulted to the bank, Held that the writer of the letter was liable to the bank in an action for deceit, and could not urge in defense that he believed the rep- resentation to be true. Browning v. National Capital Bank, 13 App. D. C. 1; 26 W. L. R. 357. In such action, evidence by the president and directors of the bank that the loan would not have been made had they known of the indebtedness of S-, is admissible. /&. Evidence as to the reputed wealth of S., and his integrity and truthful- ness of character, as well as of declarations made by him to the defendant at the time the letter was written, is not admissible on behalf of the de- fendant; the letter not professing to be based upon such information but upon personal knowledge. Ih. In absence of active deceit or express warranty on part of landlord, a tenant cannot maintain an action against him on account of the condi- tion of the premises. Howell v. Schneider, 34 App. D. C. 532; 33 W. L. R. 83. DECEDENTS' ESTATES. See Estates ot Decedents; Wills. DECLARATIONS. As to admissibility of self-serving declarations. See Nieman v. Mitchell, 3 App. D. C. 195; 22 W. I,. R. 59. As to binding effect on principal of declarations of agent. See Main V. Aukam, 12 App. D. C. 375 ; 26 W. L. R. 339. As to admissibility in will contest of declarations of testator. See Utermehle v. Norment, 22 App. D. C. 31; 31 W. L. R. 333. Monogue v. Herrell, 13 App. D. C. 455; 26 W. L. R. 775. Throckmorton v. Holt, 12 App. D. C. 552 ; 180 U. S. 552. Barbour v. Moore, i App. D. C. 535 ; 33 W. L. R. 793. Admissibility of declarations as part of res gestae. See Kehan v. Wash. Ry. & Bl. Co., 38 App. D. C. 108; 34 W. L. R. 451. Patterson v. Ocean A. & G. Corp., 35 App. D. C. 46; 33 W. L. R. 274. Dis. of Col. v. Dietrich, 23 App. D. C. 577; 33 W. L. R. 360. Wash. &■ G. R. R. Co. V. McLane, 11 App. D. C. 220; 25 W. L. R. 485. Snowden v. United States, 3 App. D. C. 89; 23 W. L. R. 74. Met. R. R. Co. v. Collins, 1 3o8 Decoys — Debds. App. D. C. 383 ; 21 W. L. R. 811. McUin v. United States, 17 App. D. C. 323. As to admissibility of evidence of declarations of decedent in action affecting his estate See Patten v. Glover, 1 App. D. C. 466; 21 W. L,. R. 794. As to admissibility in evidence of declarations of the donor of a gift causa mortis. See Dawson v. Waggaman, 23 App. D. C. 428 ; 33 W. L. R. 226. As to admissibility of declarations of one accused of homicide to show state of mind and motive for killing. See McUin v. United States, 17 App. D. C. 323. As to presumption that a contradicted statement, testified to by plain- tiff as having been made by her at the time of the accident, was in fact made. See Metropolitan R. R. Co. v. Martin, 15 App. D. C. 552; 28 W. L. R. 83. When statements made by plaintiff at time of accident, sought to be used against her in action for injuries, are to be considered with a view to her condition at the time of making them. See Columbia Ry. Co. v. Cruit, 20 App. D. C. 521; 30 W. L. R. 776. City & Suburban Ry. v. Svedborg, 20 App. D. C. 543 ; 30 W. L. R. 823. As to submission to jury of declarations of deceased father on issue of implied contract to compensate his daughter for services. See Tuohy V. Trail, 19 App. D. C. 79 ; 30 W. L. R. 3. As to effect of declaration of intention not to carry out contract. See Landvoight v. Paul, 27 App. D. C. 423 ; 34 W. L. R. 398. Declarations made by two brothers, or by either of them, in the course of a transaction and promotive of its accomplishment, in which transac- tion they and their sister were all interested, and in which they were act- ing with her knowledge and sanction, bind all alike. Main v. Aukam, 4 App. D. C. 51 ; 22 W. L. R. 633. DECOYS. See Mails. DECREES. See Judgments and Decrees. DEDICATION. As to what amounts to a dedication of land for highway purposes. See Lansburgh v. Dis. of Col, 8 App. D. C. 10 ; 24 W. L. R. 120 ; Watson V. Carver, 27 App. D. C. 555 ; 34 W. L. R. 483. An acceptance of a dedication of land for public use may be implied from conduct. Lansburgh v. Dis. of Col, 8 App. D. C. 10; 24 W. L. R. 120. At to presumption of dedication of highway by long continued user. See Dis. of Col. v. Robinson, 14 App. D. C. 512 ; 27 W. L. R. 303. DEEDS. See Mortgages and Deeds of Trust. I, Validity in General. II. Execution. Ill, Acknowledgment. Deeds. 309 IV. Delivery. V. Recordation. VI. Consideration. VII. Construction. VIII. Alteration. IX. Estoppel of Grantor. X. Assumption of Incumbrances. XL Husband and Wife. XII. Evidence. XIII. Cure of Defects. XIV. Reformation. XV. Revocation and Annulment. XVI. Quit Claim Deeds. XVII. Tax Deeds. XVIII. Deeds of Settlement. XIX. In General. I. Validity in General. A deed of real estate by one out of possession is not void. Matthews V. Hevner, 2 App. D. C. 349; 22 W. L. R. 108. The words "in favor of parties in actual possession" in the act of Mar. 3, 1865, are not to be restricted to those in actual physical possession. Seizin is presumed to accompany title, and parties are presumed to be in possession under their deeds until the contrary is shown. Hevner v. Matthews, i App. D. C. 380; 22 W. L. R. 745. A deed which appears on its face to have been made to carry out a champertous agreement is unlawful and carries no title, and the joinder of another as co-trustee with a party to such agreement will not give it validity. Peck v. Heurich, 167 U. S. 624; 25 W. L. R. 595. A marshal's deed made in pursuance of a sale of an equity of redemp- tion under execution passes no title. Mayse v. Gaddis, 2 App. D. C. 20 ; 22 W. L. R. 46. Where E. held the legal title to land in trust for a syndicate of which S. was a member and executed a deed of a part of S.'s interest to him in order that he might convey it to B. who before the transaction was consummated agreed to purchase S.'s entire interest, and thereupon the deed from E. to S. was cancelled, held, that such deed was a nullity and that the legal title remained in E., who was bound to convey it upon S.'s direction. Johnson v: Elkins, 1 App. D. C. 430 ; 22 W. L. R. 5. A deed void on its face does not constitute a cloud upon title which equity will remove. Mayse v. Gaddis, 2 App. D. C. 20; 22 W. L. R. 46. As to validity of deed made by adult child to parent without considera- tion. See Murray v. Hilton, 8 App. D. C. 281; 24 W. L. R. 262. II. Execution. It may be averred in pleading and shown in proof that a deed was in fact made, executed and delivered at a date subsequent to that stated on its face. Dis. of Col. v. Camden Iron Works, 15 App. D. C. 198 ; 27 W. L. R. 462. While a deed of property situated in the District, acknowledged in 1806 in New Hampishire, before one,;purporting to be a notary and justice of the peace of that Stiite, but which contained no certificate of the official character of such officer, was not properly executed, the defect 3IO Deeds. was cured by the several acts of Congress of 1832, 1838, 1865 and 1867. Hevner v. Matthews, 4 App. D. C. 380 ; 22 W. L. R. 745. Where in a deed by a non-resident, dated in 1806, a power of attorney was given to two persons jointly to acknowledge it in the District for the grantor, but such power was exercised by but one of them, although the other was living and his failure to act unaccounted for, such defect was cured by the acts of 1838 and 1865. Ih. Evidence of mental incapacity of grantor held insufficient. CritcMeld V. Basterday, 26 App. D. C. 89; 33 W. L. R. 504. III. Acknowledgment. The prevention of fraud upon creditors and purchasers and to furnish means of protection to innocent third parties are the objects of statutes re- quiring acknowledgment and recordation. Fitzgerald v. Wynne, 1 App. D. C. 107 ; 21 W. L. R. 611. The acts of 1832, 1838, 1865 and 1867, relating to the acknowledgment of deeds, are to be considered as in pari materia and liberally construed. Hevner v. Matthews, i App. D. C. 380 ; 22 W. L. R. 745. The acknowledgment of a deed can only be impeached for fraud, and the evidence of fraud must be clear and convincing. The certificate of a notary public, in proper form, that the deed was acknowledged before him, will prevail over the unsupported testimony of the party grantor that the same was false and forged. Ford v. Ford, 27 App. D. C. 401 ; 34 W. L. R. 435. A certificate of acknowledgment is prima facie proof of the facts it contains, if within the officer's range, but is open to rebuttal, between the parties, by proof of gross concurrent mistake or fraud. In favor of purchasers for valuable consideration without notice, it is conclusive as to all matters which it is the duty of the acknowledging officer to cer- tify, if he has jurisdiction; as to all others it is open to dispute. Ford v. Ford, 27 App. D. C. 401 ; 34 W. L. R. 435. A certificate of acknowledgment of a deed is fatally defective under § 493, Code, D. C, as originally enacted, where it does not appear that the grantor was personally known to the officer, or that his identity had been proved by the oath of credible witnesses, and where the instrument is not identified by the recital of its date; and under such circumstances the instrument is not entitled to record, and its record is of no effect as constructive notice. Ohio National Bank v. Berlin, 26 App. D. C. 318; 33 W. L. R. 726. IV. Delivery. Record of a deed is not essential to delivery, even though it be with- held from record by agreement of the- parties. Bunten v. Am. Sec. & Trust Co., 25 App. D. C. 226; 33 W. L. R. 247. As between grantor and grantee, the question of delivery is one to be determined by a fair preponderance of the evidence; but where the rights of third persons have intervened proof of non-delivery should be clear beyond reasonable doubt and in many cases the grantor will be estopped to deny delivery. Carusi v. Savary, 6 App. D. C. 330; 23 W. L. R. 374. Deeds. 311 Possession of a deed by one claiming under it is prima facie evidence of its delivery and throws upon the maker of it the burden of proving that it never was delivered. Ih. A deed to be held in escrow until the happening of some condition not apparent upon its face must be delivered to a stranger and not to the grantee. Newman v. Baker, 10 App. D. C. 187; 25 W. 1,. R. 170. A grantor in a deed to become absolute on a certain contingency, who places it in the power of the grantee to obtain possession of the deed prior to the contingency, is estopped to deny delivery of the deed, and its validity so far as it is required to support a deed of trust made by such grantee to secure a loan negotiated on the strength of the deed. Carusi V. Savory, 6 App. D. C. 330 ; 33 W. L. R. 374. In such case the fact that the grantee disregarded the condition under which the deed was to be delivered, violated his trust and made a fraudulent use of the deed, cannot be held to invalidate it in the hands of innocent third parties. lb. V. Recordation. The recording of a deed of trust is not constructive notice to any one that the grantor, a stranger to the record title, was the grantor in a prior unrecorded deed. Crosby v. Ridout, 27 App. D. C. 481 ; 34 W. L. R. 330. The recording of a deed of trust, where the power of attorney under which it was assumed to be executed was defective, and where there was no certificate of the official character of the officers before whom such an instrument was acknowledged in Michigan, is a mere nullity in the District of Columbia. Lynch v. Murphy, 161 U. S. 247 ; 34 W. L. R. 456. - The doctrine as to the registration of deeds being constructive notice to all subsequent purchasers, is not to be understood of all deeds and con- veyances, which may be de facto registered, but only of such as are au- thorized and required by law to be registered and arc 'duly registered in compliance with law. lb. It is to the deed itself, and the transcript thereof on the land records, that §§ 446, 447, R. S. D. C, gives force and efficacy as notice, and not to the certificate of acknowledgment; and the effect of a deed properly acknowledged and certified, as notice, is not lost or destroyed by the fact that the certificate has been incorrectly transcribed on the land records. Sis v. Boarman, 11 App. D. C. 116; 25 W. L. R. 431. As between the parties the failure to record a deed does not affect its validity.- Fitzgerald v. Wynne, 1 App. D. C. 107; 21 W. L. R. 611. The question of whether the record of a deed reads "lot seventy" or "lot twenty" is one of fact determinable at law and not in equity in a pro- ceeding to remove a cloud on title. Mayse v. Gaddis, 3 App. D. C. 30; 33 W. L. R. 46. A feme covert, as to property held by her under the married women's act, is bound to take notice of a conveyance duly recorded. Quirk v. Liehert, 12 App. D. C. 394 ; 26 W. L. R. 258. VI. Consideration. Although a mere nominal consideration may be stated in a deed, the true consideration may be shown by parol, the only requirement being that the additional or true consideration shall be of the same nature and 312 Desds. kind as that stated in the deed, and not inconsistent therewith. Droop V. Ridenour, 11 App. D. C. 224; 25 W. L. R. 481. A deed by one joint tenant to another, a sister, made upon mere nom- inal money consideration, but also in consideration of love and affection, will, in the absence of fraud and deception in obtaining it, convey a title perfectly good and effectual as between the parties. Warner v. Jackson, 7 App. D. C. 211; 23 W. L. R. 811. VII. Construction. A conveyance to two or more persons without any sufficient indication of intention in the instrument that the grantees are to hold in sev- eralty, is to be construed as a joint tenancy, whatever may have been the intention of the parties. Seitz v. Seitz, 11 App. D. C. 358 ; 25 W. L. R. 738. A recital in a deed conveying to a brother of the grantor and the wife of another brother, their heirs and assigns, an undivided two-thirds interest in real estate — the grantor retaining a one-third interest in him- self — to the effect that in the purchase of the property he had acted as well for his brothers as himself, the three of them jointly paying the purchase money, will not suffice to convert the estate conveyed by the deed into a tenancy in common, and not a joint tenancy. lb. The word sole, occurring in the habendum clause of such deed, wherein it is provided that the grantees shall have and hold the estate thereby con- veyed "to their sole use,'' etc., cannot be treated as the equivalent of the word several so as to convert the estate into a tenancy in common; but the proper signification of the word is the same as only or exclusively. lb. That in such case, the conveyance itself operates as a severance in favor of the grantor, of the joint interest declared by the deed to have existed in him in trust, does not warrant a construction of the instru- ment as creating a tenancy in common. lb. A deed executed by an attorney in fact to sell land, which recites that the attorney and not his constituents thereby bargains and sells, and which is executed and acknowledged as the deed of the attorney, held not to have the effect of a complete bargain and sale to convey the legal title. Williams v. Paine, 7 App. D. C. 116; 23 W. L. R. 626. A conveyance by the owner of a lot of a part thereof, wherein the di- viding line between the part conveyed and that retained, as called for by the deed, is ''northwestwardly with the front line of the frame house with a brick basement" on the part retained by the grantor, and wherein it is further provided that nothing shall be put up on the part conveyed that will obstruct the light from the front of said house, construed, and the wall of said house held to be the exclusive property of the grantor and those claiming under him, and not a party wall in any proper sense of the term. Schafer v. Baker, 16 App. D. C. 212 ; 28 W. L. R. 355. As to effect of conveyance to one and his heirs in trust for another, with no limitation over to the heirs of the cestui que trust. See Dengel V. Brown, 1 App. D. C. 423; 21 W. L. R. 741. As to estate created by conveyance to husband and wife "to have and to hold the said land unto and to the only use of the parties of the second Deeds. 313 part, their heirs and assigns, forever." See Marshall v. Lane, 27 App. D. C. 276; 34 W. L. R. 290. As to estate created by a deed to a husband and wife. See Loughran V. Lemmon, 19 App. D. C. 141; 30 W. L. R. 25. VIII. Alteration. A deed fraudulently altered after delivery is void and an innocent purchaser can take nothing under it. Peugh v. Mitchell, 3 App. D. C. 321; 23 W. L. R. 332. Where an interlineation or erasure is in the same handwriting and with the same ink as the rest of the instrument, the presumption is that it was made before execution and delivery; but where there has been a substitution in the description of the property, in different handwriting and ink, and there is other evidence sufficient to give rise to suspicion, there is no such presumption. lb. The interest of a grantee under a deed executed and delivered is not divested by a subsequent unauthorized obliteration and erasure by the grantor of his signature when the deed is sent to him for correction of a supposed defect in the acknowledgment. Fitzgerald v. Wynne, 1 App. D. C. 107; 21 W. L. R. 611. IX. Estoppel of Grantor. A grantor and all in privity with him are estopped from denying that which is set forth in his deed by way of recital or agreement. Morris v. Wheat, 8 App. D. C. 379 ; 24 W. L. R. 264. Where a grantee under a deed insufficient to pass the legal title, has paid the purchase money and taken possession of the property, equity will treat the deed as passing the equitable title; and the grantor and those claiming under her will be estopped to deny the sale. Williams v. Paine, 7 App. D. C. 116; 23 W. L. R. 626. A grantor cannot derogate from his own grant, while a grantee may take the language-of the deed most strongly in his favor. Wilson v. Riggs, 27 App. D. C. 550 ; 34 W. L. R. 469. X. Assumption of Incumbrances. An agreement by the grantee in a deed to assume a mortgage on the land has the effect of a simple contract and not that of a specialty obli- gation or covenant on his part. Willard v. Wood, 1 App. D. C. 44 ; 21 W. I.. R. 579. Taxes and assessments are incumbrances and grantee assuming the payment of "existing incumbrances" assumes them. Whipple v. Geddis, 25 App. D. C. 333; 33 W. L. R. 309. There is no ambiguity, patent or latent, in the expression "'existing incumbrances" used in a deed of conveyance. Ih. Payment of interest on incumbrance as evidence of assumption. See Osborne v. Davidson Mortgage Co., 8 App. D. C. 481 ; 24 W. L. R. 313. As to assumption of mortgage debt by grantee. See Dorsey v. Manning, 15 App. D. C. 391; 27 W. Iv. R. 788. XI. Husband and Wife. In the absence of superior claims, a husband may, without money 314 DeudS. consideration, make and cause to be made voluntary deeds ot property to his wife, for her beneficial enjoyment. McCartney v. Fletcher, 11 App. D. C. 1; 25 W. L. R. 337. The effect and operation as voluntary conveyances of deeds made and caused to be made by a husband to his wife, are not affected or restrained, as between the husband and wife and those claiming under them, because of the misrecital of the consideration. lb. The fact that deeds to a wife conveying property paid for by the hus- band, recite money consideration as passing from the wife, is not evidence that the deeds were not intended as settlements upon the wife by her hus- band, lb. For a gift or conveyance of real estate, from a husband to a wife through the intermediary of a third person, to be for the sole and ex- clusive use of the wife, the words thereof must manifest an unequivocal intent to exclude the marital rights of the husband ; the ordinary ha- bendum clause is not sufficient. Rathbone v. Hamilton, 4 App. D. C. 475; 23 W. L. R. 766. Property conveyed to a married woman by her husband through the medium of a trustee is not her separate property within the meaning of § 737, R. S. D. C, and the estate so acquired is held by her subject to her common law disabilities, and her husband must unite with her in a conveyance thereof. Cammack v. Carpenter, 3 App. D. C. 319; 33 W. L. R. 302. A deed of property so acquired, in which the husband does not unite, is void; and a court of equity will not interpose to afford aid and support thereto. lb. Such conveyance vests her with the legal title and that it was without pecuniary consideration is immaterial, provided the conveyance was not made in prejudice of the rights of the husband's creditors. lb. As to effect of wife uniting with husband in the execution of a deed, to release her right of dower. See Follansbee v. Pollansbee, 1 App. D. C. 336; 21 W. L. R. 763. As to release of dower by wife of lunatic. See In re Mclntire, 28 W. h. R. 259. XII. Evidence. A deed more than 30 years old is an ancient document and proves itself. Ford V. Ford, 27 App. D. C. 401; 34 W. L. R. 435. Parol evidence will not be allowed to contradict the terms of a deed, except when it is impeached for fraud. McCartney v. Fletcher, 11 App. D. C. 1; 25 W. L. R. 337. Parol evidence is not admissible to show that a deed was delivered to the grantee under an agreement between the parties that it should not take effect until the doing of certain things by the grantee within a spe- cified time. Newman v. Baker, 10 App. D. C. 187; 35 W. L. R. 170. XIII. Cure of Defects. A deed by an attorney in fact, executed during the Civil War, in which the power of attorney was referred to, and then recited that the at- torney and not his constituents thereby bargained and sold, and concluded Dbeds. 315 with a covenant that the constituents should, as soon as convenient, exe- cute a proper deed of conveyance of the property, the deed being signed, sealed and acknowledged as the deed of the attorney, held not such a conveyance as contemplated by the act of Congress of Mar. 3, 1865, curing defects in conveyances. Williams v. Paine, 7 App. D. C. 116 ; 23 W. L. R. 626. The act of Congress of Mar. 3, 1865, was not intended to apply to execu- tory instruments, but only to such as conveyed or attempted to convey legal titles. lb. XIV. Reformation. In a suit for the reformatipn of a deed absolute in form and to have a trust declared in respect of a portion of the property, and for an ac- counting, where the proof produced by defendant was overwhelming to the effect that while complainant was illiterate and her relations to de- fendant were of a confidential nature, yet the deed was explained to her by both the draftsman and the officer taking her acknowledgment, and that she fully understood the transaction, held that complainant's own testimony, standing alone, with its contradictions and apparent inconsist- encies, was insufficient to justify a court of equity in granting the relief prayed. O'Connell v. Koob, 16 App. D. C. 161 ; 28 W. L. R. 287. Equity will reform a deed of real estate to husband and wife, which, under the law vested in them an estate as tenants by the entireties, where it is shown that it was their intention to hold the estate as tenants in common and they supposed that that was the effect of the deed. Mar- shall V. Lane, 27 App. D. C. 276 ; 34 W. L. R. 290. Where one who has conveyed land by deed absolute on its face seeks to engraft a trust thereon, or to convert it into a mortgage by parol evi- dence, the proof to entitle him to relief should be clear and satisfactory. Nieman v. Mitchell, 2 App. D. C. 195 ; 23 W. L. R. 59. Where it appears that an instrument intended to give effect to a prior written agreement between the parties is inconsistent with the terms thereof, there is a manifest equity to correct the error. Northwest Eck- ington Imp. Co. v. Campbell, 35 W. L. R. 62. A deed held to be a conditional one dependent upon the performance of an agreement in accordance with which it was made. lb. XV. Revocation and Annulment. A suit in equity to annul a deed on the ground of grantor's mental incapacity is one in which the verdict of a jury in a court of common law might well be taken for the information and guidance of the court of equity. Moran v. Sullivan, 12 App. D. C. 137 ; 36 W. L. R. 26. Undue influence for which a deed will be annulled must be such as that the party making it has no free will. It must amount to fraud or coercion destroying free agency. Towson v. Moore, 11 App. D. C. 377; 25 W. L. R. 706. That a grantee in a deed of real estate has knowledge of a claim against the grantor which might at some time be reduced to judgment and en- forced against the property if belonging to the grantor, will not justify 3i6 Deeds. the setting aside of the deed as in fraud of the claimant. Davis v. Harper, 14 App. D. C. 463; 27 W. L. R. 494. To obtain relief on the ground of fraud or imposition, appropriate al- legations must be made and full proof furnished before a court of equity will interpose to overthrow and vacate a solemn deed of the party claim- ing, or at the instance of parties claiming under the grantor in such deed. Warner v. Jackson, 7 App. D. C. 211 ; 23 W. L. R. 811. In a suit to set aside a deed made by one sister to another, on the ground that the grantor did not assent to or intend to convey the prop- erty, held that the deed having been entirely voluntary, having been read and explained to the grantor by the attorney who drew it and subse- quently acknowledged by her and placed on record, where it remained for seven years before she attempted to impeach it, she was not entitled to the relief prayed for. lb. The owner of real estate executed a deed conveying the property to a trust company, in fee, as trustee. The deed provided that the grantor, and her assigns, during her natural life, were to have the use, rents, and profits of the land, and that the trustee, upon her written request, should convey the property in fee, the proceeds to be used by the trustee to purchase other land to be held upon like trusts, and upon the death of the grantor the trustee should apply the property as provided in the deed. It was agreed that the deed should not be placed on record until after the death of the grantor unless she should so direct. The trust was accepted by the, trustee. Subsequently the grantor notified the trustee that she wished to and did revoke the trust, and asked for the cancellation of the deed, to which the trust company replied that in its opinion it was without authority to cancel the trust, the beneficiary having acquired certain vested rights, and a method was suggested by which she might ac- complish her purpose, but its suggestion was not adopted. Thereafter the grantor made a will devising the property in trust. In an action of ejectment by the devisee under the will, held that the delivery of the deed to the trust company was effectual to vest the legal title in it, and the equitable title in the beneficiary of the trust, leaving no title in the grantor at her death to be disposed of by the will. Bunten v. Am. Sec. & Trust Co., 25 App. D. C. 226; 33 W. L. R. 247. As to setting aside deed of a corporation, for irregularity and fraud, at suit of stockholders. See Scanlan v. Snow, 2 App. D. C. 137; 22 W. L. R. 62. Disavowal and repudiation of deed by infant. Slater v. Rudderforth, 25 App. D. C. 497; 33 W. L. R. 424. XVI. Quit Claim Deeds. A quit-claim deed passes only such title as the grantor has to convey, and a grantee thereunder cannot be regarded as a bona fide purchaser without notice. Morris v. Wheat, 8 App. D. C. 379 ; 24 W. L. R. 264. XVII. Tax Deeds. Tax sale deed invahdated by insufficient report of sale made by col- lector of taxes to recorder of deeds. Kann v. King, 25 App. D. C. 182; 33 W. L. R. 147. Deeds oe Trust — Defective Appliances. 317 XVIII. Deeds of Settlement. The intention of the settlor in a deed of settlement must be regarded and conformed to with respect to restrictions or limitations imposed upon the exercise of a power of disposition given to the cestui que trust thereunder. Merchant v. Cook, 7 App. D. C. 391; 24 W. L. R. 34. XIX. In General. The grantee of a deed is entitled to rely upon the letter of his grant ; and it is incumbent upon him who claims a deed absolute on its face to have been intended as a mortgage, so to show by ample and satisfactory evidence, and it will not be sufficient to throw doubt upon the matter or raise suspicion as to the character of the transaction. Hayward v. Mayse, 1 App. D. C. 139; 21 W. L. R. 619. As to effect of deed of interest in estate of decedent where the estate had been converted into personalty and the interest of the grantor had adeemed by reason of advances made to him. See Miller v. Payne, 28 App. D. C. 396 ; 34 W. L. R. 798. As to effect of correct description in deed of property conveyed on ac- tionable character of misrepresentations made by vendor. See Shappirio V. Goldberg, 192 U. S. 232 ; 32 W. L. R. 132. As to effect of deed by Commissioners acting under the authority of acts of Congress relative to sale of certain water front lots in Georgetown. See Dis. of Col. V. Cropley, 23 App. D. C. 232 ; 32 W. L. R. 97. The term "creditors," as used in § 499, Code, D. C, prescribing the time when deeds shall take effect, means those creditors who, in the interval of time between the delivery of a deed and its delivery to the recorder of deeds for record, have fastened upon the property for the payment of their debts, and not general creditors. Crosby v. Ridout, 27 App. D. C. 481. Priority of lien created by judgment creditor's bill over unrecorded deed. Ohio National Bank v. Berlin, 26 App. t). C. 218 ; 33 W. 1,. R. 726. As to materiality of evidence as to when war revenue stamp affixed. See Crandall v. Lynch, 20 App. D. C. 73; 30 W. L. R. 326. See also Estates ; Estates of Decedents ; Fraudulent Conveyances ; Mortgages and Deeds of Trust; Real Property; Taxes and Taxation. DEEDS OF TRUST. See Mortgages and Deeds ot Trust. DEFAULT JUDGMENTS. See Judgments and Decrees. DEFECTIVE APPLIANCES. Liability of landlord having knowledge of dangerous defects in prem- ises which he fails to reveal to tenant who suffers injury thereby. Howell V. Schneider, 24 App. D. C. 533; 33 W. L. R. 83. Where lessor had no actual knowledge of unskillful construction or dangerous condition of water box and made no misrepresentations in re- spect thereof, he is not liable to lessee for injury caused by the fall of the box. lb. See Master and Servant; Negligence. 3i8 Defenses. DEFENSES. Failure of consideration is a good defense as against the payee in a promissory note, as is a proper set-off; but when relied upon they must be distinctly stated. A plea of set-off which shows on its face that the claim made by it is barred by the statute of limitations, is not sufficient. Durant v. Murdoch, 3 App. D. C. 114 ; 23 W. L. R. 349. It is no defense to an action against a party by one acting on his false representations that he believed the representations to be true. Browning V. Nat. Capital Bank, 13 App. D. C. 1 ; 26 W. L. R. 357. In an action on a promissory note against the indorser it is no defense that defendant did not, after discount of the note by plaintiff, receive a part of the proceeds claimed to" be the consideration for his indorsement. Green v. Stewart, 23 App. D. C. 570 ; 32 W. L. R. 409. In ejectment, where it is the purpose of defendants to raise the ques- tion of plaintiff's right to the possession of any particular part of the premises declared for, it is incumbent upon them to narrow their defense accord- ingly. Crandall v. Lynch, 20 App. D. C. 73 ; 30 W. L. R. 326. Non-performance of contract by complainant as ground for refusal to restrain an infringement of complainant's rights under such contract. Whitson V. Columbia Phonograph Co., 18 App. D. C. 565 ; 29 W. L. R. 804 ; 98 O. G. 418 ; C. D. 1902, p. 497. As to availabihty of defense ultra vires by corporation in indorsing note for accommodation. See Willard v. Crook, 31 App. D. C. 337; 31 W. L. R. 177. As to availability of defense of ultra vires of a building and loan as- sociation. See Building Assn. v. Olmstead, 16 App. D. C. 387 ; 28 W. L. R. 409. As to defense of set-off by executor or administrator. See Heyman v. Thomas, 33 W. L. R. 793. As to defense to suit by guarantor to establish a lien on collateral security for note paid by him. See Mankey v. Willoughby, 31 App. D. 314; 31 W. L. R. 326. As to availability of defense after overruling of plea in which set up. See Wagenhurst v. Wineland, 22 App. D. C. 356 ; 31 W. L. R. 531. To action on bond. Bieher v. Cans, 24 App. D. C. 517 ; 33 W. L. R. 51. Set-off as defense to action on bond. See McGiiire v. Gerstley, 26 App. D. C. 193 ; 33 W. L. R. 75. Usury as defense to action to recover principal claim. See Lawrence V. Middle States Co., 7 App. D. C. 161 ; 23 W. L. R. 793. The defense of accidental homicide is wholly inconsistent with that of homicide in self defense. Pearson v. United States, 10 App. D. C- 536; 25 W. L. R. 536. Lapse of time alone is no ground for the joint application of the statute of limitations and the doctrine of laches where they would conflict with each other and the equitable doctrine would reduce the statutory period of hmitations. Sis v. Boarman, 11 App. D. C. 116; 25 W. L. R. 431. Showing of fraud to defeat operation of release under seal pleaded Definitions — Delivery. 319 in bar of action for personal injuries. Rockwell v. Capital Traction Co., 25 App. D. C. 98 ; 33 W. L. R. 338. See also Actions ; Bills and Notes ; Patents ; Pleading ; Recoup- ment; Res Judicata; Seventy-third Rule. DEFINITIONS. See Statutes; Words and Phrases. "DEFRAUD." As to meaning of term. See Tyner v. United States, 23 App. D. C. 324; 32 W. L. R. 258. DELAY. See Laches; Limitation of Actions; Patents. DELEGATION OF POWER. The provisions of the Oleomargarine Act of Aug. 2, 1886, are not unconstitutional because the duty of making regulations to carry the act into effect is devolved upon the officers of the Treasury Department. Kollock V. United States, 9 App. D. C. 420; 25 W. L. R. 41. The reservation, in the acts of Congress permitting the B. & O. and B. & P. railroad companies to enter this District, of power in Congress to enact such rules and regulations as it might see proper, does not require the exercise of such power by the direct action of Congress exclusively, or preclude its delegation, by reasonable implication, to the municipal authorities of the District. Baltimore & Ohio R. R. Co. v. Dis. of Col., 10 App. D. C. Ill ; 25 W. L. R. 118. As to validity of act of Congress of Mar. 2, 1895, conferring upon the Commissioners of District of Columbia power to regulate concerning the service of milk. See Thompson v. Dis. of Col., 21 App. D. C. 395 ; 31 W. L. R. 305. As to whether Congress may delegate to the Board of Medical Super- visors authority to determine what shall constitute unprofessional or dis- honorable conduct of a medical practitioner so as to render him guilty of a criminal offense in continuing to practice. See Czarra v. Medical Supervisors, 24 App. D. C. 251 ; 32 W. L. R. 744. In assessing lands for benefits accruing thereto from the construction of a public improvement Congress may leave to commissioners the deter- mination of the class of lands to be assessed. Bauman v. Ross, 167 U. S. 548; 25 W. L. R. 358. As to delegation of powers by co-trustees to one of them. See Colburn V. Grant, 16 App. D. C. 106 ; 38 W. L. R. 245. DELIVERY. The true date of an instrument is that of its delivery. Moses v. United States, 166 U. S. 571 ; Howgate v. United States, 3 App. D. C. 277. A deed to be held in escrow until the happening of some condition not apparent upon its face must be delivered to a stranger and not to the grantee. Newman v. Baker, 10 App. D. C. 187 ; 25 W. L. R. 170. Possession of a deed as evidence of delivery. Carusi v. Savary, 6 App. D. C. 330; 23 W. L. R. 374. As to delivery of written instruments on condition resting in parol. See Donaldson v. Uhf elder, 31 App. D. C. 489 ; 31 W. L. R, 438, 320 Demurrer — Departmbntal Records. Recordation of deed as essential to delivery. Bunten v. Am. Sec. & Trust Co., 25 App. D. C. 226; 33 W. L. R. 247. Conditional delivery of sealed instrument. Bieber v. Gans, 24 App. D. C. 517; 33 W. L. R. 51. As to delivery of policy of fire insurance rendering insurer liable for loss. See Hartford Ins. Co. v. Wilson, 187 U. S. 467 ; 31 W. L. R. 34. DEMURRER. The practice of demurring to the petition upon which the writ of man- damus or rule to show cause has been issued, condemned. West v. Hitch- cock, 19 App. D. C. 333 ; 30 W. L. R. 186. A demurrer to a bill of review filed on ground of error apparent on face of decree raises only question that can be raised, and when overruled, defendants not entitled to plead over. Perkins v. Tyrer, 24 App. D. C. 447; 33 W. L. R. 54. A demurrer to a bill does not admit allegations as to the construction of statutes or documentary exhibits. Naganab v. Hitchcock, 2.5 App. D. C. 200; 33 W. L. R. 248. Duplicity in pleading cannot be attacked by demurrer. National Ex- press Co. V. Burdette, 7 App. D. C. 551; 24 W. L. R. 88. As to scope of review of judgment on demurrer to plea in abatement. See Stone v. Ches. & C. Investment Co., 15 App. D. C. 585; 28 W. L. R. 137. Nature as demurrer, of motion by plaintiff, at close of all evidence, to direct verdict in his favor. See Uhhoff v. Brandenburg, 26 App. D. C. 3; 33 W. L. R. 473. As to right of appeal from order overruling. See Niles v. Trust Co., 22 App. D. C. 225 ; 31 W. L. R. 426. Starkweather v. Bank, 21 App. D. C. 281; 31 W. L. R. 98. See also Patents; Pleading. DENTAL SOCIETY. As to powers of. See Bryant v. Dental Society, 26 App. D. C. 461; 34 W. L. R. 19. DEPARTMENTAL DECISIONS. When conclusive on courts. See Bates & Guild Co. v. Payne, 194 U. S. 106; 32 W. L. R. 297. DEPARTMENTAL PRACTICE. Departmental practice contrary to law is not made lawful by the prac- tice of a department for a long period of time, but due regard should be given to a practice which admittedly has prevailed for more than twenty-five years in proceedings of a judicial character, even though a reasonable doubt exists in mind of the court as to the proper construction to be placed upon a statute. Allen v. U. S. ex rcl. Lowry, 26 App. D. C. 8. See Patents. DEPARTMENTAL RECORDS. As to the admissibility of originals. See Lorenz v. United States, 24 App. D. C. 337; 32 W. L. R. 822. Departmentai, Regulations — Descent, Distribution. 321 DEPARTMGENTAL REGULATIONS. Courts will take judicial notice of departmental regulations adopted in aid of a law. Prather v. United States, 9 App. D. C. 83; 24 W. L. R. 395. DEPORTATION OF ALIENS. See Awens. DEPOSIT FOR COSTS. See Costs. DEPOSITIONS. Under the rules of the Supreme Court of the District, effective Mar. 19, 1894, there is no provision for taking the depositions of non-resident witnesses in actions at law. Where, however, the commission to take such depositions had issued under the seal of the court before the new rules went into effect, depositions taken thereafter are within the saving clause of the order adopting the new rules. Anacostia R. R. Co. V. Klein, 8 App. D. C. 75 ; 24 W. L. R. 117. As to whether the act of Maryland of 1773, ch. 7, § 7, is in force in this District. See Ih. As to waiver of defects of form in taking depositions of non-resident witnesses. See lb. See EviDBNCB; Patents. DESCENT AND DISTRIBUTION. On the death of a party intestate, leaving surviving him as his next of kin nephews and nieces, the children of deceased brothers and sisters, in the distribution of his personal estate they take per stirpes, and not per capita, and the son of a deceased nephew, is not entitled to share in the distribution of the personal estate with nephews and nieces who take per stirpes. Inglehart v. Hoit, 12 App. D. C. 68 ; 26 W. L. R. 3. Estate of Holt, 35 W. Iv. R. 382. Where an intestate leaves no nearer relatives than the descendants of his maternal grandfather the distribution is per stirpes of the grandfather and not per capita. Construing §§ 940, 950 of Code. McManus v. Lynch, 28 App. D. C. 381 ; 35 W. L. R. 18. Where a testator directed that certain real estate be sold and the proceeds applied to pay bequests made by the will, but such bequests were paid or retained for by the executor out of the personal estate, held that the reason for such sale ceased to exist and the estate descended to the heir-at-law as undisposed of estate unembarrassed by such charges. Long V. Gloyd, 25 W. L. R. 50. Where in a suit for partition it appears that the title was formerly in B, who died intestate and without issue, and there is no proof of the ex- tinction of numerous classes of heirs of B's father, the title will not be decreed to be in the kindred of B's mother. Smith v. Cosey, 26 App. D. C. 569; 34 W. L. R. 271. An intestate left no nearer relatives than descendants of his maternal grandfather. The children of the grandfather, all dead, were A, B, C and D. A had a child, E ; B had a child, F ; C had a child, the intestate ; D had children, G, H and I. G died, leaving five children and I died, leaving one. Held, that under §§ 940-950 of Code, one-third of the estate 322 Descent and Distribution. went to E, one-third to F, one-ninth to H, one-ninth to the child of I, and one-forty-fifth to each of the five children of G. McManus v. Lynch, 38 App. D. C. 381 ; 35 W. L. R. 18. Under the Maryland act of 1786, descendants of the maternal grand- father of the person last seized can inherit only in case such person died leaving no brother or sister, or descendants thereof, and no living de- scendant of his paternal grandfather. Posey v. Hanson, 10 App. D. C. 496; 25 W. L. R. 299. Where real estate is devised to an infant, the sole heir-at-law of tes- tatrix, with a limitation over to pious uses on his death before reaching the age of 21 years, and the limitation over is void under § 457, R. S. D. C, the infant will take an indefeasible fee simple absolute ; and upon his death intestate, before reaching 31, the property will descend to his heirs- at-Iaw, and not to those who would have been heirs-at-law of the tes- tatrix in case -he had not survived her. Horn v. Foley, 13 App. D. C. 184; 36 W. L. R. 466. Where a bequest of the residue of a fund realized from real estate, di- rected by the will to be converted into personalty, to pious uses was void because of the death of testatrix within a month from the making of the will, it was held that such residue passed to the next of kin of the tes- tatrix, lb. The matter of inheritance is determined by conditions existing at the death of the person last seized, and not by subsequently arising condi- tions, lb. Property conveyed to a wife at the direction of her husband, who fur- nishes the purchase money, passes, on the death of the wife, to her heirs- at-law, subject to the surviving husband's right of curtesy. Zeust v. Staf- fan, 14 App. D. C. 200; 27 W. L. R. 501. A husband is entitled to the personal property of a deceased wife after the payment of her debts, although acquired as her sole and sepa- rate estate. McCarthy v. McCarthy, 20 App. D. C. 195 ; 30 W. L. R. 419. A leasehold interest for ninety-nine years, accompanied by a right granted in the lease to the lessee, his executors, administrators, and as- signs, to purchase the fee simple title to the property at any time during the continuance of the lease for a stipulated sum, is personaltj', and passes through the process of administration to the personal representative or next of kin of an intestate assignee of the leasehold ; and they and not the heirs-at-law of such intestate assignee, are entitled to exercise the option to purchase contained in lease. Bean v. Reynolds, 15 App. D. C. 125 ; 27 W. L. R. 482. Where a testatrix, after a bequest in trust for her mother for and during her natural Ufe, devised and bequeathed all the rest and residue of her property to her son; but if he should die before reaching the age of 21, without lawful issue surviving, then "I give, devise and bequeath to my mother, her heirs and assigns forever, all my said property * * * of which my said son shall die seized and possessed" including the prin- cipal sum bequeathed in trust. Held, that if the mother of testatrix died before the son and left as her sole heirs-at-law an own son and such grandson, then on the death of such infant grandson the real estate would vest in her own son or his heirs and the personal estate would Dbscent and Distribution. 323 be distributable one-half to such son or his representatives and one-half to the representative of the deceased infant grandson. Holcoifib v. Wright, 5 App. D. C. 76; 23 W. L. R. 24. As to course of descent and distribution where persons perish by a com- mon disaster. See Young Woman's Christian Home v. French, 187 U. S. 401; 31 W. L. R. 30. Where a testatrix devises her estate to her son, and, in the event of her surviving him, to a certain charitable institution, and both mother and son lose their lives in a common disaster, the burden of proving the survivor- ship of testatrix is upon such institution, failing in which there is raised a prima facie right to take, in the personal representative of the son, which can only be overcome in favor of the next of kin of testatrix by their proving her survivorship. Faul v. Hulick, 18 App. D. C. 9; 39 W. L. R. 171. Where a mother and son perished in the same disaster, a controversy as to the distribution of personal estate of which either of the parties was possessed at the time of death held to depend upon the ascertainment of the party whose position in the case is such that he must succeed be- cause of the failure of evidence to determine the fact of survivorship. 76. Where after the death intestate of the grantor in a mortgage or deed of trust to secure debts, a sale is had for default under such deed, the surplus proceeds of sale go to the heirs of the grantor, although the con- veyance provides that it shall be payable to the grantor, "his executors, administrators and assigns." Burke v. Robinson, 29 W. L. R. 654. Distribution of a decedent's estate should be made at the earliest possi- ble moment consistent with the rights of creditors and safety of admin- istration. Sterrett v. Nat. Safe Deposit &c. Co., 10 App. D. C. 131 ; 25 W. L. R. 139. On partial distribution it is proper for the administrator to require distributees to execute releases for the amounts paid them, or to execute powers of attorney authorizing the execution of such releases. /&. Pending appeal from an order refusing probate of a will, the next of kin, the executor and two of the devisees entered into a stipulation for a partial distribution of the estate. Held, that the fact that one of the next of kin had testified on the trial of the issues as to the will, to his belief that there was no will and that none could be found after diligent search, would not affect the partial distribution under the stipulation. 76. A brother-in-law of an intestate is not entitled to the surplus of an estate after payment of debts and expenses ; construing Maryland acts of 1719 and 1798, c. 101. Belcher's Estate, 21 W. L. R. 827. A limitation to the heirs of a testator, eo nomine, upon a certain con- tingency, is void, and in such case they will take by descent and not by purchase. Craig v. Rowland, 10 App. D. C. 402 ; 25 W. L. R. 235. As to jurisdiction of Orphans' Court to require an executor to pay to next of kin, residue of estate after payment of debts and legacies. See Sinnott V. Kenaday, 12 App. D. C. 115 ; 26 W. L. R. 121 ; 14 App. D. C. 1 ; 27 W. L. R. 83 ; 179 U. S. 606. As to power of Orphans' Court to order partial distribution of estate of decedent. See McLane v. Cropper, 5 App. D. C. 376; 23 W. L. R. 115. 324 Description of Property — Devise. As to sufficiency of order directing executor to make partial distri- bution of esta,te. See lb. As to disposition of family portraits. See Brown v. Esterhazy, 25 W. L. R. 478. As to proof, in action of ejectment, by one claiming as heir of person last seized. See Howard v. Evans, 24 App. D. C. 127 ; 32 W. L. R. 406. Power of aliens to acquire lands by inheritance. See Burke v. Robin- son, 29 W. L. R. 654. A first cousin, ex parte materna, of the grantor in a conveyance by way of mortgage to secure a debt, being a native-born citizen of the United States, held entitled to the surplus proceeds of a sale made after the death of the grantor, intestate, as against alien relatives of such grantor ex parte paterna, notwithstanding such alien relatives may have declared their intention to become citizens of the United States, and also as against an uncle, ex parte materna, of said grantor whose citizenship was acquired by naturalization and who claimed through an alien grandfather. lb. See Wills. DESCRIPTION OF PROPERTY. See Mortgages and Dseds of Trust. DESCRIPTIONS. See Patents. DESERTION. See Divorce. DESIGNS. See Patents. DETECTIVES. As to caution with which evidence of, to be received. See Gassen- heimer v. United States, 26 App. D. C. 432 ; 34 W. L. R. 80. DETINUE. The gist of the action of detinue is wrongful detainer, and where a declaration in such action states a bailment to defendant and his en- gagement to redeliver on request, and defendant pleads that the bailment was security for a loan, the allegation in the declaration as to bailment being mere matter of inducement, the plaintiff may, without being guilty of a departure, reply that the pledge was obtained by fraud on the part of defendant. Wiard v. Semken, 2 App. D. C. 424 ; 22 W. L. R. 172. DEVISE. A devise to the Greenwood Cemetery, New York, of real estate in this District, in trust for the use of decedent's brother for life, and on his death to be converted into money and the proceeds to be in- vested, the income therefrom to be used by the cemetery company, as trustees, in trust for keeping a lot in perpetual good order, held valid. Inglehart v. Inglehart, 26 App. D. C. 209 ; 33 W. L. R. 711. Capacity of foreign cemetery company to take. See lb. Conditions annexed to devises, which lead to probable restraint of mar- riage, are void. Kennedy v. Alexander, 21 App. D. C. 424; 31 W. L. R. 158. As to uncertainty invalidating devise. See Colbert v. Speer, 24 App. D. C. 187; 32 W. L. R. 678. Diligence — Discontinuance. 325 As to effect of misnomer of corporation to defeat devise to it. See lb. As to devise within inhibition of § 34 of Maryland Bill of Rights. See Long V. Gloydj 35 W. L. R. 50. As to validity of devises to ministers, etc., and religious bodies. See lb. As to validity of devise to heir. See Landic v. Simms, 1 App. D. C. 507 ; 33 W. L. R. 17. As to admissibility of extrinsic evidence to determine construction or extent of. See Atkins v. Best, 37 App. D. C. 148; 34 W. L. R. 393. Creation of special charitable trust. Columbian University v. Taylor, 35 App. D. C. 134; 33 W. L. R. 181. See Wills. DILIGENCE. See Patsnts. DIPHTHERIA. See Physicians. DIRECTED VERDICT. See Verdict. DISBARMENT OF ATTORNEYS. See ArroRNfiYs; Patents. DISCHARGE IN BANKRUPTCY. See Actions. DISCHARGE OF POOR CONVICTS. See United States Com- missioners. DISCLAIMERS. See Patents. DISCLOSURE OF INVENTION. See Patents. DISCONTINUANCE. Plaintiff may not discontinue his action after a plea of set-off has been filed, without defendant's consent. McGuire v. Gerstley, 36 App. D. C. 193; 33 W. L. R. 754. Due dihgence in the prosecution of his suit is required of a plaintiff to avoid a discontinuance, but the question of due diligence is one of fact to be shown to the court by proper proof. Parsons v. Hill, 15 App. D. C. 533 ; 38 W. L. R. 19. As to discontinuance of suit for failure to have writ of summons served. See lb. Whether the discontinuance of an action has resulted from failure to serve summons is a question of law for the court and not one of fact for the jury. Tyler v. Messenger Co., 17 App. D. C. 85; 28 W. L. R. 710. Scire facias is a judicial writ expiring within a year and a day of its issuance, and failure to enter fiat thereon within that time operates a discontinuance of the proceeding. Collins v. McBlair, 29 App. D. C. 354 ; 35 W. L. R. 243. As to right of intervening complainants in judgment creditor's suit to have cause reinstated after discontinuance thereof by the original complainant. See La Tourette v. Fletcher, 6 App. D. C. 324; 23 W. L. R. 408. A proceeding once discontinued cannot be revived without notice to the party affected thereby. Collins v. McBlair, 39 App. D. C. 354; 35 W. L. R. 343. See Justices of the Peace; Replevin. 326 Discovery — Distribution. DISCOVERY. To entitled one to discovery he must allege and show clearly that he has an enforceable claim and also such interest in the subject matter to which the required discovery relates as to entitle him to discovery. Mann v. MacDonald, 3 App. D. C. 456; 22 W. L. R. 385. As against an administrator, it is not necessary to resort to a court of equity for either discovery or account in respect of assets of a deceased debtor. The Orphans' Court has ample authority over the subject. lb. A bill seeking discovery from an interested party should charge that the facts are known to defendant and ought to be disclosed by him, and that complainant is unable to prove them by other testimony. Plumb v. Bate- man, 2 App. D. C. 156; 22 W. L. R. 20. An order of publication cannot, under § 787, R. S. D. C, issue upon a bill for discovery. lb. It is not sufficient that the bill for discovery alleges generally that de- fendant is in possession of facts that will throw light upon the case under inquiry; but it must state in respect to what particular facts discovery is required, and show how the complainant is interested in them, and their materiality ' and pertinency to the case for which the discovery is required. McCartney v. Fletcher, 10 App. D. C. 572 ; 25 W. L. R. 311. The right of a complainant in equity to the benefit of the defendant's oath is limited to such material facts as relate to plaintiff's case, and does not extend to a discovery of the manner in which, or the evidence by means of which the defendant's case is to be established, or to any discov- ery of the defendant's evidence. lb. To entitle a complainant to discovery, the facts of which disclosure is sought must be of a certain and specific character. lb. In a suit by the personal representative of an intestate to compel the widow to disclose what property came into her hands either from her husband or any other person, with the gains and profits thereof during their married life of thirty years, and to account for such property in her possession at the death of her husband ; held, that the allegations of the bill were not only too vague and indefinite, but the great lapse of time involved in the proposed inquiry presented objections upon the face of the bill that might be reached by general demurrer. lb. In a suit to set aside a deed as fraudulent, there is neither necessity nor propriety for discovery from persons connected with an existing deed of trust which is not attacked, and where it is clear from the face of the deed that the principal sum secured by it will not be due for several years. Clark v. Bradley Coal Co., 6 App. D. C. 437 ; 23 W. L. R. 419. See Practice;. DISSOLUTION OF INTERFERENCE. See Patents. DISTRIBUTION. In the distribution of the assets of an insolvent estate among creditors, justice often requires preferences, and the equality to be sought is gen- erally that between members of a class rather than between different classes. Gilbert v. Wash. Ben. Endowment Assn., 21 App. D. C. 344; 31 W. L. R. 190. District Attorney — District of Columbia. 327 As to distribution of assets of insolvent insurance company. See lb. When, objects of gift by will take per capita. Mclntire v. Mclntire, 102 U. S. 116 ; 32 W. L. R. 54. See Descent and Distribution ; Estates of Decede'nts. DISTRICT ATTORNEY. It is not necessary to resort to the intervention of the district at- torney in order to use the name of the United States in mandamus pro- ceedings. Bundy v. U. S. ex rel. Darling, 25 App. D. C. 460; 33 W. L. R. 434. DISTRICT OF COLUMBIA. The District of Columbia is a district of the United States within the meaning of § 1014, Rev. Stat., authorizing the removal of accused per- sons from one district to another. Benson v. Henkel, 198 U. S. 1; Bea- vers V. Haubert, 198 U. S. 77; Hyde v. Shine, 199 U. S. 6:1 The government of the District of Columbia is simply an agency of the United States for conducting the affairs of its government in the Federal district. Penn Bridge Co. v. United .States, 35 W. L. R. 287. The District of Columbia has no legislative power, it being merely a municipal corporation bearing the same relation to Congress that a city does to the legislature of the State. Kerr v. Ross, 5 App. D. C. 241; Daly V. Macfarland, 28 App. D. C. 552 ; 35 W. L. R. 81. As to power of Congress over. See Capital Traction Co. v. Hof, 174 U. S. 1 ; 27 W. L. R. 262. The District of Columbia, as a municipal corporation, is entitled to the benefit of the exemption declared in favor of such corporations in the pro- viso to § 17 of the War Revenue Act of 1898. Hufty v. Trimble, 14 App. D. C. 414; 27 W. L. R. 203. Government reservations throughout the District are in the exclusive charge and control of the Federal Government; and the District cannot be made to respond in damages for an injury occasioned by the neglect or omission of the Federal authorities to remove an obstruction on such a reservation. District of Columbia v. Coale, 35 W. L. R. 465. Even if the act of Sept. 26, 1890, establishing a free public bathing beach, imposed any liability upon the District, the liability did not accrue until the beach had been completed, and one using it before that time was a mere trespasser and the District could not be held liable for an accident causing his death. McGraw v. District of Columbia, 3 App. D. C. 405 ; 22 W. L. R. 383. The municipality of the District of Columbia is not liable for failure to perform a general governmental duty. Brown v. District of Columbia, 35 W. L. R. 162. The District is liable for personal injuries caused by defects in a lawful obstruction in a street resulting from want of proper supervision. Dis. of Col. V. Duryee, 29 App. D. C. 327 ; 35 W. L. R. 254. As to liability to one sustaining injuries by falling over carriage block. See Wolf V. Dis. of Col, 21 App. D. C. 464; 31 W. L. R. 257. As to liability of District for injuries sustained by one invited by a fireman to his engine house, in falling through an opening in the floor 328 District of Columbia, used by the firemen in discharging their duty. See Brown v. District of Columbia, 35 W. L. R. 162. Where, in an action for personal injuries, the evidence is conclusive that the District had knowledge, through its police officers, of the long- continued unlawful occupation of a sidewalk by hucksters under leases from a market company, and that such officers had driven away hucksters who refused to pay the market company for the privilege, the District had notice of such unlawful occupation, and as matter of law was guilty of negligence in not suppressing the nuisance, and, therefore, equally re- sponsible with the market for personal injuries sustained by a pedestrian as the result of such nuisance ; and it is not necessary for plaintiff to show that the District had knowledge of the presence on the sidewalk of the particular piece of vegetable matter which caused the injury. O'Dwyer v. Market Co., 36 W. L. R. 50. Sec. 6 of the act of June 11, 1878, has the effect of making the manage- ment and control of the Metropolitan police force of the District an in- tegral part of the municipality, and intrusted as such to the Commission- ers ; and the action of the Commissioners in the premises is, therefore, the action of the municipality. Roth v.Dis. of Col., 16 App. D. C. 323; 38 W. L. R. 432. The omission of the seal of the District from a contract executed under the hands and seals of the Commissioners acting for the corporation will not affect its character as a specialty. Dis. of Col. v. Camden Iron Works, 181 U. S. 453. As to effect of contract by Commissioners under their hands and seals as contract of the municipal corporation. See Dis. of Col. v. Camden Iron Works, 15 App. D. C. 198 ; 27 W. L. R. 462. The operations of the Board of Public Works, so far as they could be the source of resultant right and liability, have so frequently been recognized by Congress that they must be held to have been validated, to the same extent as though they had been authorized in the first instance. Dis. of Col. V. Metropolitan R. R. Co., 8 App. D. C. 322; 24 W. L. R. 566. As to application of act of Congress of Aug. 13, 1894, relative to pay- ment of interest to holders of board of audit certificates. See Roberts v. United States, 13 App. D. C. 38; 26 W. L. R. 375. A bill in equity is maintainable by the Commissioners of this District in their own names as Commissioners, for a mandatory injunction to compel a person, whose license to temporarily occupy a portion of a public avenue and parking has been revoked, to remove a structure used as a refreshment stand from such avenue and parking. McBride v. Ross, 13 App. D. C. 576 ; 27 W. L. R. 402. As to whether the statute of limitations will run against the District in favor of one claiming title by adverse possession of a portion of a public highway outside the boundary of the city of Washington. See Dis. of Col. V. Krause, 11 App. D. C. 398; 25 W. L. R. 812. The establishment of rules and regulations respecting the Washington Market Company is within the power of the City Government and not of the market company. Construing act of May 20, 1870. Market Co. v. Dis. of Col, 172 U. S. 361, affirming 6 App. D. C. 34. It was not within the power of the governor of the District under the Division op Appi^ication — Divorcb. 329 act. of Feb. 21, 1871, to incur pecuniary liability for the erection of market buildings and operation of the market, that being within the province of the Legislative Assembly. lb. Correspondence between the Washington Market Company and officers of the District Government relative to the control of the open space de- scribed in § 16 of the act of May 20, 1870, held not to constitute a contract under which the market company had an exclusive right to control such space. Market Co. v. Dis. of Col, 6 App. D. C. 34; 23 W. L. R. 213. Under the act of Congress of May 30, 1870, § 16, the grant of power as to the wholesale market was to the municipality and not to the market company. lb. Neither the Governor nor the Board of Public Works had power to bind the District by express contract, authorizing the erection of build- ings on the open space described in § 16 of the act of May 20, 1870, by the Washington Market Company, and the collection of revenues there- from, binding the District to pay for the same in the event of the company being dispossessed by Congress. lb. As to liability for costs on appeal. See Brown v. Macfarland, 22 App. D. C. 412; 31 W. L. R. 541. Appeals by, perfected by entry thereof; time for producing and filing transcript of record. Dis. of Col. v. Roth, IS App. D. C. 547; 29 W. L. R. 703. As to delegation to District authorities of power reserved by Congress in acts permitting the B. & O. and B. & P. railroad companies to enter District. See Balto. & O. R. R. Co. v. Dis. of Col, 10 App. D. C. Ill; 25 W. L. R. 118. The power to regulate the movements of railway locomotives and trains is conferred upon the Commissioners by the joint resolution of Congress of Feb. 26, 1893. lb. The Board of School Trustees cannot bind the municipality to pay- ment for services rendered for the public schools in the absence of an ap- propriation therefor. Myers v. Dis. of Col, 25 App. D. C. 133; 33 W. L. R. 391. As to power of commissioners to submit claim against District to ar- bitration. See Bailey v. Dis. of Col, 9 App. D. C. 360 ; 24 W. L. R. 745. As to power of Congress to make ordinance enacted that of the District of Columbia. See Dempsey v. Dis. of Col, 1 App. D. C. 63; 31 W. L. R. 389. As to application of provisions of Constitution securing right of trial by jury. See Capital Traction Co. v. Hof, 174 U. S. 1; 37 W. L. R. 362. As to power of Congress to appropriate money for the necessary care of the public health and maintenance of public charities. See Roberts v. Bradfield, 13 App. D. C. 453 ; 36 W. L. R. 242. See Contracts; Commissioners of District of Columbia; Legislative Assembly; Municipal Corporations; Negligence; Police Officers; Streets and Sidewalks. DIVISION OF APPLICATION. See Patents. DIVORCE. I. Causes in General. 330 DivoKCE. II. Adultery as Cause. III. Desertion as Cause. IV. A Mensa et Thoro. V. Residence for Purpose of. VI. Collusion. VII. Custody and Maintenance of Children. VIII. Alimony. IX. Costs and Counsel Fees. X. Pleading and Practice. XL Evidence. XII. In General. I. Causes in General. Occasional instances of intoxication on the part of a husband and sometimes protracted intoxication, held not to entitle the wife to a di- vorce on the statutory ground of habitual drunkenness. Acker v. Acker, 32 App. D. C. 353. Cruelty as ground for divorce may consist in conduct actually causing mental suffering of sufficient severity as to seriously affect health and endanger life, provided the proof be clear. Ogden v. Ogden, 17 App. D. C. 104; 28 W. L. R. 734. Since the going into effect of the Code, no divorce can be granted in respect of the charge of drunkenness, cruelty, or desertion, although the suit was pending at the time the Code became operative, in the absence of amendatory legislation by Congress. Dabney v. Dabney, 30 W. L. R. 256. II. Adultery as Cause. In a suit for divorce on the ground of adultery, there must be clear and satisfactory proof; strong suspicion, or circumstances of suspicion, are not sufficient.- Glennan v. Glennan, 3 App. D. C. 333; 22 W. L. R. 473. Condonation of the offense of adultery so as to bar right to divorce may be implied where injured party, with knowledge of the infidelity of the other, re-establishes the marriage relation with the guilty party. Phelps V. Phelps, 28 App. D. C. 577 ; 35 W. L. R. 49. III. Desertion as Cause. Where a wife abandoned her husband in another jurisdiction and came to this District, letters written to him from the latter place indicating that it was her intention to abandon him at the time she left him, will not have the effect of showing that her intention to desert was definitely formed after her arrival in the District so as to make it the place of desertion. Blandy v. Blandy, 20 App. D. C. 535; 30 W. L. R. 808. In a proceeding for divorce on the ground of wilful desertion and abandonment, the time during which the defendant has been found to be insane can not be included in computing the statutory period of desertion required to entitle the petitioner to a divorce. lb. To convert the continuation by the wife of a voluntary separation had upon the demand of the husband, who refused longer to live with a wife who confessed that she no longer loved him but was willing to remain with him "for appearance sake," into the wilful desertion and abandon- ment for which under the statute an absolute divorce may be granted, it is Divorce. 331 at least incumbent on the husband to show that he has, in a conciliatory manner and in perfect good faith, invited her return without condition. Woolard v. Woolard, 18 App. D. C. 326; 29 W. L. R. 499. A letter written shortly after the separation by the husband to the wife, containing a cold and formal invitation to her to return and resuine her full duty as his wife, together with the love she should have for him, with no assurance of continued affection on his part, or indication of regret that he had insisted upon their separation, the general tone of the letter being one of complaint and containing a reproach for which there was no foundation in the evidence as to the causes of the separa- tion, held insufficient for the purpose. Ih. Charges of infidelity made by a husband against his wife resulting in a temporary separation followed by a reconciliation will not justify a subse- quent desertion and abandonment of the husband by the wife. Hitchcock V. Hitchcock, 15 App. D. C. 81 ; 27 "W. L. R. 446. Neither parsimony, nor indifference, nor dissatisfaction with existing conditions will justify desertion and abandonment of the matrimonial relation. With some possible exceptions, the misconduct justifying separa- tion must be such as would justify a divorce, at least a divorce from bed and board. Ih. The fact that within five days after leaving his home, a wife files suit against her husband for separate maintenance and support sufficiently indicates that she left without any intention to return and with the pur- pose of terminating the matrimonial relation. lb. Where a wife wilfully and without just legal cause deserts and aban- dons her husband and thereafter files suit against him for separate main- tenance, and it is not shown that he in any way procured, consented to, or connived at the separation, the husband is under no legal obligation to solicit her return ; and her persistence for two years continuously in such desertion and abandonment makes the cause of divorce complete under the statute in force in this District. lb. That subsequent to wilful desertion b'y a wife and the institution by her of suit for separate maintenance, the husband filed suit to have the marriage between them declared a nullity on the ground that a former husband of the wife from whom she had not been divorced was living at the time of the marriage, is not sufficient to convert the wife's wilful desertion and abandonment into justifiable separation for the time of the pendency of such suit, or to bar his right to a divorce when the desertion shall have continued for the statutory period of two years. lb. IV. A Mensa et Thoro. A suit for divorce a mensa et thoro can not be maintained under the Code, nor can alimony pendente lite be granted, on the ground of drunken- ness, cruelty or desertion, in the absence of legislation by Congress amendatory of the Code in that particular. Dabney v. Dabney, 30 W. L. R. 256. The term "legal separation from bed and board," as employed in the second proviso of § 966, Code D. C, providing that legal separation from bed and board may be granted for drunkenness, cruelty or desertion, is synonymous with divorce a mensa et thoro, and the Supreme Court 332 Divorce. of the District is not without jurisdiction to entertain a petition praying the latter. Maschauer v. Maschauer, 23 App. D. C. 87 ; 32 W. l^. R. 66. That there is no limitation of time affixed to the causes for which legal separation or divorce a mensa et thoro may be decreed, does not render the provision of § 966 of Code too indefinite and uncertain to be carried into operation; but the meaning of the terms employed is to be settled by judicial construction. 76. V. Residence for Purpose of. In order to give the Supreme Court of the District of Columbia juris- diction to grant a divorce, the petitioner therefor must be a resident of the District. Blandy v. Blandy, 20 App. D. C. 535; 30 W.L. R. 808. Section 971, Code D. C. requires that residence for the purposes of divorce shall in all cases be in good faith — that is, residence with the in- tention of remaining in the District and making it the party's fixed and permanent home. Downs v. Downs, 23 App. D. C. 381; 32 W. L. R- 228. Where the residence required by the laws of one jurisdiction for pur- poses of divorce is the same as that required in another jurisdiction for the exercise of the elective franchise — both requiring that it be in good faith and with the intention of remaining there and making it his fixed and permanent home — a party can not at the same time be a resident of one jurisdiction for the one purpose and of another jurisdiction for the other purpose. Ih. One who for more than a year prior to filing suit had broken up his home in this District, separated from his wife and child, rented rooms in Baltimore, and moved part of his household effects there, with the avowed intention of gaining a residence there for voting purposes, had registered as a duly qualified voter upon making the showing required by the laws of the State and had voted in that city in succeeding elections, held not a resident of the District for purposes of divorce, and he cannot be heard to say that his residence in Maryland was procured through false and fraudulent representatibns. lb. VI. Collusion. A divorce will not be granted where, in an ex parte proceeding by a husband against his non-resident wife, the testimony is such as to excite grave suspicion of collusion or connivance. Jones v. Jones, 20 App. D. C. 38; 30 W. L. R. 567. VII. Custody and Maintenance of Children. Where a decree of divorce was silent on the subject of the custody and support of a child, and the mother voluntarily assumed such custody and support and refused a tender of assistance by the father, the court was without power or jurisdiction to reopen the case and require the father to reimburse the mother for sums expended by her in the maintenance and education of the child during the time that elapsed between the date of the decree of divorce and the time of fihng the petition. Demonet v. Burkhart, 23 App. D. C. 308; 32 W. L. R. 244. No special allegation in pleading in relation to the children is required to justify the court in providing for the custody and maintenance on dis- solution of the marriage ; but all that is necessary is that the situation Divorce. 333 and circum'stances of the children be brought to the attention of the court. Wells V. Wells, 11 App. D. C. 392 ; 26 W. L. R. 71. Although in such case the cross-bill contains no prayer as to disposition of children, yet a prayer contained in the original bill referred to and re- peated in the answer to the cross-bill is sufficient to authorize the court to provide for the custody and maintenance of the children of the marriage dissolved. lb. As to custody of children. See Sfickel v. Stickel, 18 App. D. C. 149 ; 39 W. L. R. 563. VIII. Alimony. Under §§ 732, 749. R. S. D. C, alimony can be allowed in decrees for absolute divorce. Alexander v. Alexander, 13 App. D. C. 334; 26 W. L. R. 787. Where a decree of divorce from the bonds of matrimony allows alimony to a wife at a certain fixed sum per month, the court rendering the de- cree may subsequently entertain an application on the part of the hus- band for a reduction of the amount of such allowance, and render a de- cree for such reduction, lb. The Supreme Court of the District has power to compel obedience to an order awarding alimony by committing the party to jail if he refuses to obey it. Lane v. Lane, 27 App. D. C. 171; 34 W. L. R. 334. A decree of divorce providing for the payment of alimony "until the further order of the court" is not final so far as the payment of alimony is concerned, and the court was clearly within its jurisdiction in requiring, ten years thereafter, the payment of alimony accruing between the date of the decree and the second marriage of the wife. Demonet v. Burkart, 23 App. D. C. 308; 32 W. L. R. 344. The continuation of a decree of divorce requiring the payment of ali- mony, is subject to the control of the trial court and may be made to de- pend upon complainant's conduct and necessities in the future. Beall v. Beall, 27 App. D. C. 468 ; 34 W. L. R. 388. When a cause has been brought to a hearing on the merits, and an absolute decree of divorce has been rendered in favor of the husband, and the wife's counter petition for divorce dismissed, without any refer- ence whatever to alimony or arrears of alimony, and no provision made for the collection or payment of arrears of alimony, the wife can not after- wards, and after the decree has passed beyond the power of correction in the court which rendered it and beyond the power of review by an ap- pellate tribunal, go back of that decree and enforce an interlocutory order for alimony pendente lite, which remained partially unexecuted at the time of the rendition of the decree. Walter v. Walter, 15 App. D. C. 333; 37 W. L. R. 785. A motion to amend a decree of the appellate court reversing a decree of the court below refusing a divorce, so as to direct the court, in enter- ing a decree in favor of complainant to allow her arrearages of alimony to the date of the decree, as well as permanent alimony, and counsel fees, refused. Gibson v. Gibson, 18 App. D. C. 73 ; 39 W. L. R. 375. As to jurisdiction of court of equity of suit to enforce foreign decree awarding alimony. See Davis v. Davis, 35 W. L. R. 306. 334 DivoRCB. As to enforcement in this District of decree of court of foreign juris- diction for the payment of alimony. lb. IX. Costs and Counsel Fees. A wife held not entitled to an advance by the husband of a sum neces- sary for her expenses on an appeal by him. Bernsdorff v. Bernsdorff, 26 App. D. C. 328 ; 33 W. L. R. 775. Power of court to compel husband to advance wife funds wherewith to prosecute an appeal. Morgan v. Morgan, 25 App. D. C. 389 ; 33 W. L. R. 409. Where a husband was adjudged in contempt of court for non-payment of alimony pendente lite, from the order to pay which he has appealed, an application of the wife to the appellate court to compel the husband to advance to her money for counsel fees on the appeal, supported by an affidavit that she was in destitute condition, held sufficient and the application granted. Lane v. Lane, 36 App. D. C. 335 ; 33 W. L. R. 775. Power of appellate court, pending appeal, to require appellant to pay wife a sum for counsel fees on appeal. Ih. X. Pleading and Practice. Where a bill for divorce on the ground of adultery makes a specific charge of act, persoii, place and time, and then follows with a general allegation of similar acts with the same person, at the same place, and at times before and after the specific date before alleged, the allegations, taken altogether, are not too vague and uncertain. Fiishugh v. Fitzhugh, ]5 App. D. C. 121; 27 W. L. R. 419. A cross-bill filed by defendant in a suit for divorce, which has been answered by complainant in original bill, may be retained and made the basis of a decree for divorce in favor of defendant in the original bill, notwithstanding that bill is dismissed. Wells v. Wells, 11 App. D. C. 392 ; 26 W. L. R. 71. As to sufficiency of petition for. See Jones v. Jones, 20 App. D. C. 38; 30 W. L. R. 5a7. XI. Evidence. To warrant a decree for divorce based on alleged confessions of de- fendant, the confessions must be well established, direct and certain, free from suspicion of collusion, and corroborated by independent facts and circumstances. Michalowice v. Michalowicz, 25 App. D. C. 484 ; 33 W. L. R. 442. Sec. 964, D. C. Code, does not prohibit all evidence of confessions in divorce cases. lb. In a proceeding for divorce on the ground of desertion, the parties thereto are not competent to testify on their behalf. Bergheimer v. Berg- heimer, 17 App. D. C. 38; 29 W. L. R. 74. The rule that in divorce cases the parties are not competent to testify in their own behalf, is not affected by § 1068, Code D. C, providing that in both civil and criminal proceedings husband and wife shall be compe- tent, but not compellable, to testify for or against each other; but that section must be taken as qualified by § 964 of the Code, which provides a special rule of evidence in divorce cases. Lenoir v. Lenoir, 24 App. D. C. 160; 32 W. L. R. 456. Doctors — Documents. 335 A letter written twenty years before the institution of a suit for divorce, while the writer was pregnant with her second child, and in straitened financial circumstances, without employment, dependent upon her parents for support, and without any support whatever from her husband, in which she expressed a purpose not to leave the home of her parents to follow her husband, held not sufficient to justify a decree of divorce. Berg- heimer v. Bergheimer, 17 App. D. C. 381 ; 29 W. L. R. 74. The evidence in a proceeding for divorce held sufficient to show that defendant was guilty of adultery as charged. Gibson v. Gibson, 18 App D. C. 72 ; 29 W. L. R. 207. XII. In General. A suit for divorce is not a "civil cause" within the meaning of the saving clause of § 1638 of Code. Dabney v. Dabney, 30 W. L. R. 256. Where, pending an appeal from a decree dismissing a petition for di- vorce on the ground of desertion and filed prior to the going into effect of the Code which did not recognize such ground, the lower court holding that a divorce proceeding was not a "civil cause" within the meaning of the saving clause of 1638 of the Code, Congress passed an act bringing such proceedings within said saving clause, the appellate court reversed the decree appealed from and remanded the cause to the court below to proceed in accordance with such act. Dabney v. Dabney, 20 App. D. C. 440 ; 30 W. L. R. 727. A decree for complainant in a suit by a wife for maintenance, and dis- missing a cross-bill filed by defendant for a divorce, affirmed. Beall v. Beall, 27 App. D. C. 468; 34 W. L. R. 388. As to admissibility in evidence of certified copy of decree for divorce and alimony. See Droop v. Ridenour, 11 App. D. C. 224; 25 W. L. R. 483. The testimony in a proceeding for divorce on the grounds of desertion and abandonment and of cruel treatment, held insufficient to support either charge. McDonough v. McDonough, 20 App. D. C. 46 ; 30 W. L. R. 636. DOCTORS. See Physicians. DOCUMENTS. The method of authentication prescribed by the act of 1790 is not exclusive of any other which the States may think proper to adopt. Droop V. Ridenour, 11 App. D. C. 224; 25 W. L. R. 482. Proof of lost or destroyed letter. See Shaffer v. United States, 24 App. D. C. 417 ; 33 W. L. R. 4. As to admissibility in evidence of copy of lost document. See Guilford Granite Co. v. Harrison Co., 23 App. D. C. 1 ; 31 W. L. R. 759. As to admissibility in evidence, in action by United States on bond for disbursing officer, of transcript from Treasury Department containing copy of bond and statement of account. See Goff v. United States, 22 App. D. C. 512 ; 31 W. L. R. 710. As to the admissibility of the originals of departmental records. See Lorenc v. United States, 24 App. D. C. 337 ; 32 W. L. R. 822. As to admissibility of parol evidence in respect of. See Whelan v. McCullough, 4 App. D. C. 58 ; 22 W. L. R. 636. As to admissibility of secondary evidence to prove. See Main v. Aukam, 4 App. D. C. 51 ; 22 W. L. R. 633. 336 Documentary Evidence — Doubtfui, Title. As to admissibility in evidence for purpose of comparison with dis- puted writings. See Keyser v. Pickrell, i App. D. C. 198; 22 W. L. R. 639. As to admissibility in evidence. See Lorenz v. United States, 24 App. C. 337; 32 W. L. R. 822. As to incorporation as part of will, of documents referred to therein. See y^estry of St. John's Parish v. Bostwick, 8 App. D. C. 452; 24 W. L. R. 310. As to discretion of trial court in respect of requiring the return to the files of the court of papers taken therefrom by attorney. See Fields v. United States, 27 App. D. C. 433 ; 34 W. L. R. 382. As to construction of legal documents. See Keely v. Moore, 22 App. D. C. 9; 31 W. L. R. 339, See Ancient Documents; Records. DOCUMENTARY EVIDENCE. As to custody, after introduction. See Bass v. United States, 20 App. D. C. 232; 30 W. L. R. 546. See Evidence; Patents. DOGS. See Animals. DOMESTIC RELATIONS. See Husband and Wife. DOMICIL. Decedent was born in this District, and lived here until he was 20 years old, when he obtained a situation in New York, where he remained two years, during which time he boarded in New Jersey, where he was registered as a voter. On resigning his employment in New York he re- turned to Washington, remaining here a week, when he went to Arizona, and after some months returned to Washington and died there. Letters written by him while in Arizona indicated that he regarded Washington as his home, and intended to return there. Held that the evidence was sufficient to show that he had resumed his domicil in this District. Thorn V. Thorn, 28 App. D. C. 120 ; 34 W. L. R. 433. As to domicil for purpose of divorce. See Blandy v. Blandy; 20 App. D. C. 535; 30 W. L. R. 808; Downs v. Downs, 23 App. D. C. 381; 32 W. L. R. 228. As to dorriicil of corporation. See Barley v. Gittings, 15 App. D. C. 427 ; 27 W. L. R. 802. DONATIO CAUSA MORTIS. See Gifts. DOUBLE JEOPARDY. A former conviction of assault and battery is not a bar to a subsequent indictment for murder where the party assaulted dies as the result of the assault. Hopkins v. United States, 4 App. D. C. 430; 22 W. L. R. 838. As to what constitutes double jeopardy within the meaning of the Federal Constitution. See Chapman v. United States, 8 App. D. C. 302; 24 W. L. R. 251. DOUBLE USE.. See Patents. DOUBTFUL TITLE. See Sales. Dower — Drug Adui^tbration. 337 DOWER. An inchoate right of dower cannot be broader than the estate upon which it depends. Sis v. Boarman, 11 App. D. C. 116; 35 W. L. R. 431. Where a wife refuses to relinquish her right of dower in lands embraced in a contract of sale, equity will not decree specific performance of the contract. Barbour v. Hickey, 2 App. D. C. 307 ; 22 W. L. R. 57. As to effect" of wife uniting with husband in the execution of a deed, to release her right of dower. See Follansbee v. Pollansbee, 1 App. D. C. 326 ; 21 W. h. R. 763. The wife of a lunatic may, by a separate contract or deed, or by uniting with the committee of her husband's estate in a deed, release or bar her inchoate right of dower in real estate of the husband. In re Mclntire, 38 W. L. R. 259. Under a devise to T. for life, and upon his death to his children, and in the event of his death without child or children, to his legal heirs, Held, the first devisee having left children surviving, that no dower in- terest in the widow of such first devisee was created by the will or re- sulted from it. Balto. & Pot: R. R. Co. v. Taylor, 6 App. D. C. 259; 23 W. L. R. 324. A deed of trust in the nature of a mortgage contained a provision that the mortgagor might retain possession until default made. On the death of the mortgagor his heirs at law brought ejectment against his widow, who was also administratrix of his estate, and who was in pos- session of the mortgaged premises. Held, that defendant was entitled to dower in the premises under the act of June 1, 1896 (29 Stat. 194), and being in possession of the only property in which her dower could be assigned her right thereto conferred upon her such a continuing right of possession as to bar ejectment by the heirs at law whose duty it was to make the proper assignment; and that the effect of the covenant in the deed of trust for the retention of possession by the mortgagor until default made being to create a legal estate for years in the mortgagor, and no default having occurred, such term devolved as a chattel interest upon the defendant as administratrix. Wilkes v. Wilkes, 18 App. D. C. 90 ; 29 W. L. R. 261. DRAINAGE. As to duty of municipal authorities relative to drainage and liability for change or diversion thereof. See Dis. of Col. v. Cropljy, 23 App. D. C. 232; 32 W. L. R. 97. See Surface Waters. DRAWINGS. See Patents. DREDGES. See Contracts; Licenses. DROWNING. As to sufificiency of indictment for assault by means of. ,See Coratola V. United States, 24 App. D. C. 229. DRUG ADULTERATION. Under the act of Feb. 17, 1898, relating to the adulteration of foods and drugs, proof of the sale and delivery of the medicine or drug, or possession thereof for purpose of sale, and that the sarne was adulter- 338 Drunkards — Easements. ated within the meaning of the statute, makes a prima facie case of guilt; and ignorance of such adulteration is no defense. Dis. of Col. v. Lynham, 16 App. D. C. 85 ; 28 W. L. R. 568. DRUNKARDS. While a decree in a proceeding under § 115 of the Code is conclusive of the condition of the alleged drunkard on the date of its rendition, it is not so as of a date prior thereto. Knott v. Giles, 27 App. D. C. 581 ; 34 W. L. R. 414. DRUNKENNESS. As to effect on mental capacity to commit crime. See Snell v. United States, 16 App. D. C. 501; 28 W. L. R. 518; Harris v. United States, 8 App. D. C. 20; 24 W. L. R. 164; Ryan v. United States, 26 App. D. C. 74; 33 W. h. R. 516. As to effect of habitual drunkenness of husband on his right to admin- ister the estate of a deceased wife. See McCarthy v. McCarthy, 20 App. D. C. 195 ; 30 W. L. R. 419. Not a ground for divorce. ' Dabney v. Dabney, 30 W. L. R. 256; Acker V. Acker, 22 App. D. C. 353. See Intoxication. DUE PROCESS OF LAW. As to what constitutes. See Weddcrburn v. Bliss, 12 App. D. C. 485 ; 26 W. L. R. 293; Allman v. Dis. of Col., 3 App. D. C. 8; 22 W. L. R. 201. As to sufficiency of notice of lunacy proceedings. See Logue v. Pen- ning, 29 App. D. C. 519; 35 W. L. R. 382. See Constitutional Law ; Patents ; Reform School tor Gisls. DUPLICITY. See Pleading. DURESS. That a public officer would not be permitted to retain his office without giving a bond does not constitute duress in obtaining the bond. United States V. Howgate, 3 App. D. C. 277; 22 W. L. R. 345; Moses v. United States, 166 U. S..571. Taking and admission in evidence of photograph of accused person. See Shaffer v. United States, 24 App. D. C. 417; 33 W. L. R. 4. EASEMENTS. An easement is .not a right to land or to any corporeal interest therein. Wood V. Grayson, 22 App. D. C. 432; 31 W. L. R. 663. An easement acquired by long user only can not be broader than the use. Dis. of Col. v. Robinson, 14 App. D. C. 512; 27 W. L. R. 302. The law will imply an easement in favor of a grantee more readily than it will in favor of grantor. Wilson v. Riggs, 27 App. D. C. 550; 34 W. L. R. 469. Where the owner of both the quasi-dominant and quasi-servient tene- ments conveys the former, retaining the latter, all such continuous and apparent quasi-easements as are reasonably necessary to the enjoyment of the property pass to the grantee, giving rise to an easement by implied grant. Prir.scl v. Murphy, 19 App. D. C. 440; 30 W. L. R. 203. Wilson v. Riggs, 27 App. D. C. 550; 34 W. L. R. 469. Easbments. 339 The owner of adjoining lots 54 and 55 erected a house on each, with an area way between. The house on lot 54 was so constructed that the porch, composed of stone and cement, extended several feet over lot 55, and was supported on the adjacent wall of the bay window of the house on lot 55, which bay window, on reaching the fourth story, projected about a foot over lot 54 and was supported by the house thereon. Sub- sequently he conveyed lot 54 "with its improvements, ways, easements, rights, privileges, and appurtenances,'' to appellee, and thereafter lot 55 to appellant. Appellee maintained a granolithic pavement as it was at the time of his purchase; the curb encroaching on appellant's lot. In a suit by appellant to compel the removal of the porch, held that the con- veyance to appellee carried with it an easement by implied grant under which he was entitled to maintain and use the porch, etc., in the same way these constructions existed at the time of the conveyance to him. Wilson V. Riggs, 27 App. D. C. 550; 34 W. L. R. 469. Where owner of 'lot, on one half of which stood a brick and on the other a frame building 30 feet high, conveyed former with covenant not to obstruct windows of house on it, or interfere with the enjoyment of window lights as then existent, and to permit ingress upon adjoining land for purpose of repairs, such covenant construed to be that a suffi- cient portion of such strip be left vacant that the light of owner of brick house and his right of access for repair should not be obstructed or substantially impaired. Jackson v. Bit, 23 App. D. C. 133 ; 33 W. L. R. 51. An agreement between A and B, adjoining owners of real estate, that a portion of the lot of A adjoining that of B should be kept free from all structures or coverings of any kind in order to preserve the necessary light and ventilation to the premises of both, constitutes an interest in the land and must be evidenced by a writing duly executed. Hutchins v. Munn, 32 App. D. C. 88; 31 W. L. R. 344. The fact that B, in erecting his house, provided certain windows over- looking the vacant portion of the lot of A, without objection by or with the acquiescence of A, will not invest B with an easement in said space for the enjoyment of light and air by means of said windows. lb. The mere existence of such windows at the time of a conveyance by A of the lot owned by him was not sufficient to put his grantee upon notice of the perpetual easement claimed by B. lb. The question as to whether a permit for the erection of a certain struc- ture on said vacant space was regularly issued, and whether the percent- age of air space required by the regulations for the proper ventilation of the lot built on has been reserved, can not be raised by B, he having sus- tained no legal injury by reason of such structure. lb. A right to an easement of light and air cannot be acquired by prescrip- tion or adverse user. lb. Where the owner of two adjoining vacant lots executed a deed of trust on part thereof to W, and at the same time a deed of trust on the re- maining portion to M, and subsequently erected an apartment house on the part conveyed to W, leaving along the walls of the building a 10-foot strip of the part conveyed to M for the purpose of light and air to doors and windows in and the use of porches along such walls, a subsequent deed of trust to G describing the land granted as in the deed to W, 340 Educational Institutions — Ecclesiastical Law. "together with all and singular the improvements, ways, easements," etc., held to carry as a de facto appurtenance to the building an easement of light and air in such 10-foot strip and for the free use of the porches erected thereover. Wood v. Grayson, 23 App. D. C. 432; 31 W. L. R. 663. Where several houses belonging to the same person are built together so that each requires support from its neighbor, and the owner conveys away one of the houses, the right to such mutual support is not thereby lost ; but if such buildings be torn down or destroyed and be not at once restored, the right of mutual support will cease, and the parties may then assert their unqualified title to the division line. Moore v. Shoemaker, 10 App. D. C. 6; 25 W. L. R. 72. The erection by the owner of real estate, over the rear 10 feet of whose lot an adjoining owner is entitled to a free and uninterrupted right of way for purposes of ingress, egress, and regress, of solid wooden gates — one for vehicles and the other for persons — secured by iron bolts on the inside, and capable of being opened only from the inside, rendering free ingress by such adjoining owner difficult if not impossible, and the sodding by the owner of the 10 feet so reserved is an unreasonable ob- struction of such right of way, and may be enjoined in equity. Preston V. Siehert, 21 App. D. C. 405 ; 31 W. L. R. 194. An alley in a square devised by testator, not mentioned in the will, held to be impressed with a common easement. Sanford v. Porter, 34 W. L. R. 259. A formed or enclosed road or alley differs from a mere right of way enjoyed only at intervals, and is considered a continuous and apparent easement which will pass by implied grant without general words. 76. As to the character of alleyways as easements for the benefit of lot- owners. See Brooks v. Brooks, 28 W. L. R. 335. EDUCATIONAL INSTITUTIONS. A college authorized by its charter to give instruction in the liberal arts and sciences, and with power to take and apply gifts, bequests, etc., for the use of the college, may take a bequest to be used and held as an endowment for the prosecution of research in Colonial history. Colbert V. Speer, 24 App. D. C. 187 ; 32 W. L. R. 678. As to exemption from taxation. See Dis. of Col. v. Sisters of Visita- tion, 15 App. D. C. 300 ; 27 W. L. R. 736. As to right to have publication admitted to mails as second-class mat- ter. See Chicago Business College v. Payne, 30 W. L. R. 410. See Mails. ECCLESIASTICAL LAW. Charges preferred against a priest of the Protestant Episcopal Church, that he took passionate, unchaste and impure liberties with one of his fe- male parishioners, not however involving carnal knowledge of her, and also that forcibly and against her will he committed adulterly with her, are within ecclesiastical cognizance and jurisdiction ; and that being so, there can be no serious question as to the right and power of the Gen- eral Convention of the church to make and enforce, through the courts of the diocese, Canon 2, of Title 2, of the General Convention, providing that ministers of the church shall be liable to presentment and trial "for Eight-Hour Law — Ejectment. .-541 * * * crime or immorality." Satterlee v. Williams, 20 App. D. C. 393; 30 W. L. R. 694. Where the subject-matter of the judgment or determination of an ec- clesiastical court, attempted to be brought under review by a civil court, is of ecclesiastical cognizance, the judgment of the ecclesiastical court is conclusive, and no civil coiirt has jurisdiction or power to revise it, or to question its correctness. lb. There is no vested property right in a clergyman to exercise the func- tion of his ministerial office to the end that he may earn and receive a salary for his services. The right to receive the salary is dependent upon the continued performance of his duties as minister; and if he becomes disqualified by suspension or deposition from office, for any ecclesiastical offense, the right to receive salary will cease as the consequence of the judgment against him. 76. The deposition of a minister as the result of his being convicted by an ecclesiastical court of an offense cognizable by that court, thereby depriv- ing him of the right of earning a salary as such minister, does not in- volve a property right so as to give the civil courts jurisdiction to review the judgment of the ecclesiastical court, lb. Mere irregularity in the organization of an ecclesiastical court does not justify the interference of the civil court for the purpose of correcting ir- regularities or errors in the proceedings. lb. The refusal of the ecclesiastical court to entertain a challenge taken by the accused to one of the members of the court, or the supposed insuf- ficiency of the evidence upon which the accused could be convicted under the provisions of the canon, are questions of procedure, depending upon* the judgment of the ecclesiastical court, over which the civil courts can exercise no power of revision or control. lb. As to what constitutes a qualified voter at the annual parish meetings of the Protestant Episcopal Church. See Torbert v. Bennett, 34 W. L. R. 149. EIGHT HOUR LAW. ^ Sections 892, 893 of Code D. C, limiting hours of labor for employes of contractors for public works, construed. Penn Bridge Co. v. United States, 35 W. L. R. 287. EJECTMENT. I. Nature of Proceeding. II. Title to Support. III. Adverse Title. IV. Possession. V. Estoppel to Deny Title. VI. Improvements. VII. Limitations. VIII. Pleading. IX. Evidence. X. Province of Court and Jury. XL In, General. I. Nature of Proceeding. The action of ejectment is a possessory one ; it is not a proceeding in rem., but is essentially a proceeding in personam; and a judgment can only be rendered against the tenant or real defendant after due service 342 Ejectment. of process and actual notice to defend. Staffan v. Zeust, 10 App. D. C. 260; 25 W. L. R. 188. II. Title to Support. Title need not be traced beyond a common source, and a- mere verbal disclaimer of a common source made by defendant at the time of the offer of proof thereof cannot have the effect of compelling plaintiff to go further. Anderson v. Reid, 10 App. D. C. 436; 25 W. L. R. 174. Where a plaintiff in ejectment proves a common source and shows his is the older title, duly registered, a prima facie case is established and he is entitled to recover unless defendant, being under no estoppel, shows that he claims under another and a different title. lb. A plaintiff in ejectment who has been peaceably in possession of the property in controversy, under a claim of title, for a period of time even less than twenty years, and whose possession has never been voluntarily abandoned or relinquished, is entitled to prevail against a mere trespasser who subsequently enters, but shows no lawful right or title, or claim of title, in himself. Bradshaw v. Ashley, 14 App. D. C. 485 ; 27 W. L. R. 246. . Antecedent possession under claim of title raises a presumption of regularity sufficient to warrant recovery against a mere trespasser or in- truder with no color of title. Chesapeake Beach Ry. Co. v. Washington, P. & C. R. R. Co., 23 App. D. C. 587 ; 32 W. L. R. 309. It is incumbent on a plaintiff in ejectment, claiming as heir of the person last seized, not only to prove his descent from a common ancestor, but also to show the extinction of any line of descent therefrom which might claim in preference to him. Howard v. Bvans, 24 App. D. C. 127 ; 32 W. L. R. 406. In ejectment, plaintiff claimed as brother and sole heir of the person last seized. It was shown by the testimony that they were the offspring of a slave marriage, and that their parents had six other children, three of whom died in infancy, the others being sofd as slaves and taken South. The father, also, when quite old, had been sold as a slave and taken South, and was not thereafter heard of. Plaintiff continuously lived at the old place of residence of his father and mother, and for more than, forty years had not heard of his father nor of the three children sold as slaves, nor of their marrying or having children. It was shown that decedent had recognized plaintiff as his only living relative. Held, suf- ficient to make a prima facie case for plaintiff, and to justify not only a presumption that the father was dead without having other issue, but that the three children also were dead leaving no issue. lb. When both parties to an action of ejectment claim under the third person, it is prima facie sufficient to prove the derivation of title from that person, without proving his title. Reid v. Anderson, 13 App. D. C. 30; 26 W. L. R. 387. In an action of ejectment, held that the plaintiffs must show, either that they had legal title in the land and the right of possession, in which case they must first show that both parties claim title from the same com- mon source. Scott v. Herrell, 27 App. D. C. 395 ; 34 W. L. R. 401. In an action of ejectment it is not sufficient for plaintiffs to show, as a basis of title, a deed to their ancestor, without showing that the grantor in such deed had any title to the property or was in possession thereof or had right to the possession or that the State had ever granted the property. Testimony must be given to show either a grant from the State or, in case of old titles, possession under claim of title from which such grant may be inferred. Peck v. Heurich, 6 App. D. C. 273; 23 W. L. R. 289. As a court of equity has no jurisdiction, merely because the parties in interest desire it and because of their great number, to appoint trus- tees to institute suits in ejectment on behalf of persons fully competent to sue for themselves, trustees so appointed are without title to support an action of ejectment. Walter v. Slater, 5 App. D. C. 357; 23 W. L. R. 104. To maintain an action of ejectment the heir at law of a married woman must show the death of the husband of the latter, where the husband, if living, would be entitled to an estate by the curtesy. Rathbone v. Ham- ilton, 4 App. D. C. 475 ; 22 W. L. R. 766. A mere equitable estate cannot be set up to defeat a legal one. lb. The right of a plaintiff in ejectment to recover depends alone upon the strength of his own title ; and he is not aided by the weakness of that of defendant. Posey v. Hanson, 10 App. D.C. 496 ; 25 W. L. R. 299. The legal title and right of possession must exist in each and all of the plaintiff's "in an action of ejectment at the time of recovery or they can- not maintain the action. It is not enough to prove title in some of them. Morris v. Wheat, 8 App. D. C. 379 ; 24 W. L. R. 264. If-one plaintiff in a joint action of ejectment cannot recover, his co- plaintiff cannot. Davis v. Coblens, 174 U. S. 719, affirming 12 App. D. C. 51 ; 26 W. L. R. 34. ■ III. Adverse Title. A plaintiff in ejectment may be defeated by proof of an outstanding title by adverse possession in a stranger to the suit, between whom and de- fendant there is no privity, and it is not necessary for the defendant to show that he holds possession for the holder of such adverse title ; nor is it necessary, where he claims in his own independent right, to show that the holder of such title is still asserting his claim. Reeves v. Low, 8 App. D. C. 105 ; 24 W. L. R. 113. Occupation of a lot for the purpose of a stoneyard, the Stone being placed thereon, in a manner convenient for the business, is a sufficient adverse possession, without actual enclosure by fence. Holtzman v. Douglas, 168 U. S, 278; 26 W. L. R. 74. A demand by the purchaser at a tax sale upon a party in occupation for possession of the premises, and an agreement by the latter, acknowledging the right of the former to become his tenant, and pay rent to him, are sufficient to inaugurate the adverse possession of such purchaser; and it is immaterial that the party thereby becoming his tenant had prior to that time entered upon the lot although under no claim of title and pre- sumably in subordination to the title of the record owners. lb. Where a small triangular piece of land was the only place of access to the principal, if not the only, door of a building, and was left for that purpose, it is to be regarded, in contemplation of law, as covered by the building, and twenty years adverse possession of the building and 344 Ejectment. use of such piece of land as a means of access thereto, will be sufficient to give a good possessory title to the land. Mackall v. Mitchell, 18 App. D. C. 58; 29 W. L. R. 244. The evidence in an action of ejectment held to show a clear case of actual, exclusive, continuous, open and adverse possesion of the prem- ises by the defendant and those under whom she claimed for more than twenty years, vesting in her a good and sufficient title. Briel v. Jordan, 27 App. D. C. 202; 34 W. L. R. 341. See Adverse Possession. IV. Possession. The old English statutes prohibiting the conveyance of l^nds held ad- versely, if ever in force in this District, have long since become obsolete. Held, therefore, that though the evidence tending to show both possession and ouster is, in this case, confined to a company to whose rights plaintiff company had succeeded, such possession inured to the benefit of plaintiff. Chesapeake Beach Ry. Co. v. Washington, f. & C. R. R. Co., 23 App. D. C. 587; 32 W. L. R. 309. In ejectment by one railroad company against another, where it is shown that the strip of land in controversy was once occupied by the tracks of a company to whose rights the plaintiff company had succeeded, and that four years before the trial defendant company was first seen in possession of it, and continued to run cars over it, it is not necessary that plaintiff should show that actual possession of the strip by its prede- cessor company continued until the entry of defendant, or that defendant made its entry and by actual force ejected the plaintiff. Ih. Where possession has once been taken and ownership exercised there- under, a continuing constructive possession up to a reasonable time before bringing the action is sufficient as against an intruder who makes no pretense of color of title. lb. Where possession is obtained under a grant for a valuabe considera- tion, the presumption, in the absence of evidence to the contrary, is against a voluntary abandonment. Ih. V. Estoppel to Deny Title. Where in ejectment it is shown that whatever title defendant had or claimed was under one D, who was the common source for both plaintiffs and defendant, defendant is estopped to deny that D had a valid title. Morris V. Wheat, 11 App. D. C. 301 ; 25 W. L. R. 494. A defendant in ejectment claiming under a tax deed which recites a sale of the property assessed for taxes in the name of the plaintiff is estopped to deny that plaintiff was the owner at the time of the sale. Anderson v. Reid, 10 App. D. C. 426; 25 W. L. R. 174. The mere fact that portions of the proceeds of a void sale of real estate were applied for the support of the infant owner will not operate by way of estoppel and bar his right to recover in ejectment on reaching his ma- jority. Hamilton v. Rathbone, 9 App. D. C. 48 ; 24 W. L. R. 390. For an equitable estoppel to be effective as a bar to recovery in eject- ment it must be co-extensive with the original interest and title of plaintiff. The grounds of estoppel must apply to and constitute a full EjECTMijNT. 345 and complete answer to the plaintiff's right to recover possession of the entire interest sued for. lb. A stranger or third party, when sued in ejectment by a mortgagor, cannot set up the mortgage given to secure an obligation recited therein, as a bar to recovery. Smith v. Sullivan, 30 App, D. C. 553 ; 31 W. L. R. 2. One dedicating land to the municipality for the purpose of widening a public road, cannot, where the authorities took possession of the land and improved it as part of the public road, maintain ejectment against such authorities to recover possession of the land. Lansburgh v. Dis. of Col., 8 App. D. C. 10; 24 W. L. R. 120. As to estoppel to deny title. See Marshall v. Augusta, 5 App. D. C 183; 23 W. L. R. 40. VI. Improvements. As to right of purchaser in good faith of real property to recover in equity the value of improvements on his eviction in ejectment at suit of true owner. See Anderson v. Reid, 14 App. D. C. 54; 27 W. L. R. 66. VII. Limitations. Where an action of ejectment was brought two years before the ex- piration of the period of ten years allowed by the saving proviso of the Statute 21 Jac. I, and within less than two years after the repeal of said proviso by the act of March 3, 1899, the question whether the ac- tion was brought within a reasonable time after such repeal is one of law necessarily involved in the action of ejectment and to be determined therein. Gwin v. Brown, 21 App. D. C. 295; 31 W. L. R. 238. A married woman, as to property owned by her prior to 1869, is within the saving clause of the statute of 21 Jac. I, ch. 16, § 2; but where the whole period of 20 years required for a title by adverse possession, or more than 10 thereof, has elap'sed before the coverture determines, her right of action will be barred unless commenced within ten years after the removal of the disability. Davis v. Coblens, 12 App. D. C. 51; 26 W. L. R. 34. In ejectment, lapse of time short of the period of limitations will not avail as a defense ; and therefore a delay for nearly seven years by parties claiming as heirs-at-law to assert their right to possession of real estate as against a party claiming under a will, is a circumstance which the jury is justified in regarding as of little weight, especially where the delay is satisfactorily explained. Barbour v. Moore, 10 App. D. C. 30 ; 25 W. L. R. 55. An amendment of a declaration in ejectment striking out the name of one of the three original plaintiffs, is not the equivalent of the com- mencement of a new suit, so as to restrict the recovery for mesne profits to a period of three years before the date of the amended declaration. Morris v. Wheat, 11 App. D. C. 201 ; 25 W. L. R. 494. VIII. Pleading. The pleading, in ejectment, along with the general issue, of a special plea that defendants were not, at the time of the institution of the suit, nor have been since, in possession of the premises sued for, is improper, as the defense set up by the special plea is embraced by the general issue; 346 Ejectment. and the special plea should be stricken out. Crandall v. Lynch, 30 App. D. C. 73 ; 30 W. L. R. 326. The discontinuance, at the trial, by the plaintiff in ejectment, of the count for mesne profits is not an amendment of the declaration, within the meaning of Md. Act of 1785, ch. 80, so as to entitle the defendant to a continuance of the action. The matter is within the discretion of the trial court, and its action is not subject to review by the appellate tribunal. lb. The averment of title in a declaration in ejectment must be of a day subsequent to the accruing of plaintiff's title as shown in evidence, and the ouster must be stated as having occurred on some subsequent day. But in ordinary cases no proof whatever of the ouster is necessary, that being a necessary implication of law as against a party shown to be wrongfully in possession, holding against the party entitled to the present possession of the premises. Ih. The general issue in ejectment puts in issue the right of possession to the whole premises declared for by plaintiff; and where it is the purpose of defendants to raise the question of the right of plaintiff as against the defendants to the possession of any particular portion of the premises declared for, it is incumbent upon them to narrow their defense accord- ingly. Ih. The general issue plea of not guilty denies the whole ground of action, and the only exception to the general rule is a plea to the jurisdiction. Special pleas, except as to jurisdiction, are improper. Barbour v. Moore, 4 App. D. C. 535; 22 W. L. R. 792. The striking out of the name of one of the plaintiffs is an amendment and the action of the court in allowing it is not appealable. Morris v. Wheat, 11 App. D. C. 201 ; 25 W. L. R. 494. It is unnecessary to plead the statute of limitations in ejectment, when the general issue has been interposed. Morris v. Wheat, 1 App. D. C. 237; 21 W. L. R. 654. IX. Evidence. In ejectment by the purchaser at a deed of trust sale against the heirs- at-law of the grantor therein, the deed from the trustees to such pur- chaser is admissible in evidence to establish his legal title; and the question in such case is not whether the trustees have strictly complied with the terms of the deed of trust, but whether the deed conveys to the plaintiff the legal title to the premises. Crandall v. Lynch, 20 App. D. C. 73; 30 W. L. R. 326. It is incumbent upon the plaintiff in ejectment, where the general issue is pleaded by the defendant, to prove that he had the legal estate in the premises before action brought; that he had the right of entry at the time of bringing suit, and that defendant, or those claiming under him, were in possession of the premises when the declaration was served. lb. As to necessity for proof of ouster in action of ejectment. See lb. In an action of ejectment, where one of the parties claims under a will which went into effect prior to the date of the act of June 8, 1898, proof of the due execution of such will may be made by the subscribing wit- Hjectmh;n1'. 347 nesses thereto, and upon such proof the will is properly admitted in evi- dence. Young V. Norris Peters Co., 37 App. D. C. 140; 34 W. L. R. 240. Where in an action of ejectment proof of due execution of the will is made by the subscribing witnesses, and no attempt is made to contradict or impair the credibility of the evidence, the admission in evidence of the probate of said will as a will of personalty, even if error, is not pre- judicial to the party claiming against the will. lb. In an action of ejectment, where a will under which defendant claims is attacked on the ground of mental incapacity of and undue influence practiced upon the testator, a wider range of evidence is required than is usual in ordinary trials. Barbour v. Moore, 10 App. D. C. 30; 35 W. L. R. 55. The decree of the Orphans' Court admitting a will to probate in pursu- ance of the verdict of a jury is not conclusive in an action of ejectment • between the same parties wherein the will is offered as evidence of title of the devisees. Perry v. Sweeny, 11 App. D. C. 404 ; 25 W. L. R. 724. A will, probated in another jurisdiction in 1865, which in general terms devises all the testator's estate to a person named, but which bears no date, and of the time of the execution of which no proof is offered,- is insufficient, in an action of ejectment, to prove a transfer of the title to property in this jurisdiction acquired by the testator in 1858. Reeves v. Low, 8 App. D. C. 105 ; 24 W. L. R. 113. In an action of ejectment, where defendant relies' not only upon a good -record title, but upon a possessory title as well, a marshal's deed and tax deeds, whether void or not, are admissible in evidence as constituting color of title. Mackall v. Mitchell, 18 App. D. C. 58 ; 39 W. L. R. 244. Payment of taxes is important and strong evidence of a claim of title ; and the failure of the record owners to make claim to the property or to pay taxes themselves, is evidence of an abandonment of any right in or claim to the property. Holtzman v. Douglas, 168 U. S. 278; 26 W. L,. R. 74. In ejectment by the descendants of the maternal grandfather of the person last seized against a party in possession, the burden is on the plaintiffs to prove the extinction of all those lines of descent which take in preference to plaintiffs. Every possibility of title in another person in the line of descent must be removed before they can recover ; no presump- tion being admitted against the party in possession. Posey v. Hanson, 10 App. D. C. 496 ; 25 W. L. R. 299. In an action of ejectment, where the defense is adverse possession for the statutory period, it was proper to exclude testimony offered by plain- tiff to the effect that during such period the plaintiff, without defendant's knowledge, secured a judgment for possession against defendant's tenant, who thereupon leased the premises from plaintiff ; there being no evidence to show that the tenant ever paid any rent to plaintiff. Briel v. Jordan, 27 App. D. C. 303 ; 34 W. L. R. 341. The evidence of the record of a proceeding brought by plaintiff before a justice of the peace against the tenant of defendant's ancestor, who had never been the tenant of plaintiff, and of an attornment by said tenant to plaintiff, held properly excluded. lb. In an- action of ejectment, a sufficient prima facie case is made by the 348 EjBCTMENT. plaintiff where he has shown that whilst in the quiet and undisturbed possession of the premises the defendant entered and ousted him of his possession. Chesapeake Beach Ry. Co. v. Washington, P. & C. R. R. Co., 23 App. D. C. 587; 32 W. L. R. 309. Where the declaration in ejectment alleges that defendant unlawfully detains the property from plaintiff, the plea of the general issue places upon plaintiff the burden of proving defendant was in possession, and without such proof plaintiff would not be entitled to recover. Peck v. Heurich, 6 App. D. C. 273; 23 W. L. R. 289. Where a plaintiff was not otherwise entitled to recover, a verdict will not be disturbed because the court erred in excluding evidence, Ih. In an action of ejectment, where the defense is adverse possession, defendant may show that in the neighborhood he was reputed to be the owner of the land in dispute. Holtsman v. Douglas, 5 App. D. C. 397; 23 W. L. R. 146. As to sufficiency of evidence to support. See Ford v. Ford, 27 App. D. C. 401; 34 W. L. R. 435. As to what constitutes evidence of adverse possession. See Johnson v. Thomas, 23 App. D. C. 141 ; 32 W. L. R. 69. X. Province of Court and Jury. What constitutes title and seniority of title and adverse possession under claim and color of title, are all question of law calling for legal definitions; and while the facts upon which such questions arise must be fovmd by the jury, the legal propositions themselves are for the court to decide. Reid V. Anderson, 13 App. D. C. 30; 26 W. L. R. 387. XI. In General. An action of ejectment is not maintainable to recover an inch of ground encroached upon by the wall of an adjoining house, as § 482, R. S. D. C, gives another remedy in such case. Frizsel v. Murphy, 19 App. D. C. 440; 30 W. L. R. 203. An action of ejectment instituted by a married woman is abated by her death, and a new action by the husband, claiming as tenant by the curtesy, is necessary. Welch v. Lynch, 35 W. 1,. R. 398. A trial court cannot consolidate for trial two actions of ejectment where one of them has been abated by the death of a married woman plaintiff and been erroneously allowed to be continued by her surviving husband claiming as tenant by the curtesy. lb. As to power of court of equity to appoint receiver of rents and profits of real estate pending action of ejectment. See Whyte v. Spransy, 19 App. D. C. 450; 30 W. L. R. 182. * Sec. 787, R. S. D. C, does not authorize a judgment by default in an action of ejectment upon mere constructive notice by publication. Staff an V. Zeust, 10 App. D. C. 260; 25 W. L. R. 188. The act of Mar. 3, 1899 (§ 111 of Code), does not contemplate the use of an injunction to restrain the trial at law of a pending action of eject- ment, but that the suit should be retained to await the result of the action of ejectment and disposed of in accordance therewith. Gwin v. Brown, 21 App. D. C. 295 ; 31 W. L. R. 238. Elections. 349 Nature of proceeding authorized by § 111 of Code as an equitable action of ejectment. Johnson v. Thomas, 23 App. D. C. 141 ; 33 W. L. R. 69. The adoption of the Code and of § 1638 thereof, did not have the effect of divesting a plaintiff in a pending action of ejectment of the right to prosecute and take the benefit of his action. Gwin v. Brown, 21 App.'D. C. 295 ; 31 W. L. R. 238. A requested instruction in an action of ejectment, referring to the ques- tion of the claim of title, "that such claims may be gathered from his acts in improving and occupying the land," held sufficiently covered by the statement in the general charge "that the claim of ownership or claim of title must be ascertained from all circumstances in evidence." Reeves v. Low, 8 App. D. C. 105; 24 W. L. R. 113. Where property was conveyed to a husband in trust for the sole and separate use of his wife and by her direction the husband executed a deed of trust on the property to secure a debt of his own and the property was sold thereunder, held, in ejectment brought by the heirs of the wife, that upon her death the trust for her benefit became passive, and the statute of uses vested the legal title in the heirs, but that the conditions for curtesy existing, the husband was entitled thereto and the action could not be maintained. Prey v. Allen, 9 App. D. C. 400; 25 W. L. R. 39. The right of one of several defendants to appeal to the Supreme Court of the United States from a decree establishing plaintiff's title by adverse possession is dependent upon his separate interest and not upon the value of the whole. Howison v. Masson, 29 App. D. C. 338. As to duty of clerk of court relative to docket entries in ejectment suit and effect of omission as to property involved on liability of plaintiffs to mortgagee of defendants. See Armstrong v. Ashley, 22 App. D. C. 368; 31 W. L. R. 439; affirmed in 204 U. S. 273. Action of ejectment and proceedings for forcible entry and detainer dif- ferentiated. See Brown v. Slater, 23 App. D. C. 51 ; 32 W. L. R. 18. The question of identity of parties cannot be raised for the first time on appeal. Crandall v. Lynch, 30 App. D. C. 73 ; 30 W. L. R. 326. See Adverse Possession ; Deeds ; Dower ; Evidence. ELECTIONS. As to what constitutes a qualified voter at the annual parish meetings of the Protestant Episcopal Church. See Torbert v. Bennett, 24 W. L. R. 149. A member, of a mutual fire insurance company has the right to de- mand that the vote in electing a chairman and adopting resolutions shall be by risks and not per capita where that method of voting is prescribed for electing managers. Walker v. Johnson, 17 App. D. C. 144; 28 W. L. R. 768. The power of a trading corporation to enadt by-laws allowing voting by proxy is implied where the charter is silent. Ih. Resolutions restricting right of voting by proxy and refusing recog- nition to proxies held by officers, held irregularly adopted where a de- mand that the vote be taken according to risks was ignored, and the vote was taken viva voce. lb. 350 EivBCTioN OF Remedies — Electric Wires. As to right of members of mutual insurance company to vote by proxy at annual election of managers. See Johson v. Walker, 28 W. L. R. 187. As to power of court of equity to inquire into legality of an election held by a corporation. See Archer v. Shoemaker,' 26 W. L. R. 98. •See Corporations. ELECTION OF REMEDIES. That a party induced by the fraud of the seller to purchase certain stock and stock options notifies a third party from whom defendant purchased of his intention to hold such third party liable on a guaranty given de- fendant at the time of his purchase and by him transferred to plaintiff, such guaranty not having been put in suit by plaintiff and having been by him specifically tendered the defendant before its maturity, is not an election to affirm the purchase of the stock after discovery of the fraud from which he is estopped to withdraw. Tyler v. Moses, 13 App. D. C. 428; 26 W. L. R. 771. See Remedies. ELECTRIC VEHICLES. See Vehicles. ELECTRIC WIRES. Article XI, § 5, of the police regulations, in reference to permits for the stringing of wires, does not apply to a case where a wire is run on private property for private purposes without crossing or encroaching upon a public street, alley or reservation. Galium v. Dis. of Col., 15 App. D. C. 529; 28 W. L. R. 61. Whether the act of Congress of Mar. 3, 1891, conferred upon the District Commissioners unlimited discretion to grant permits to lay wires for electric lighting purposes, after Apr. 1, 1892, in excess of the five-mile limit fixed by the act, even if they did not have such discretion by virtue of their general power, qticsre. U. S. Electric Lighting Co. v. Ross, 24 W. L. R. 775. The power of the Commissioners of the District to grant permits for laying wires for the lighting of certain streets, held to have been granted by implication in the act of June 11, 1896, if it did not before exist. lb. Neither the act of 1891 alone, nor that act taken in connection with other legislation, confers any exclusive rights or privileges upon the United States Electric Lighting Co., nor restrains the Commissioners from grant- ing the permits authorized by that act to any corporation -or individual which in their judgment would best subserve the public interest. lb. As to liability of telephone company and the District of Columbia for injuries occasioned by n wire constituting a dangerous obstruction of high- way. See Dis. of Col. i: Dempsey, 13 App. D. C. 533; 27 W. L. R. 87. As to negligent maintenance. See Clements v. Potomac Blec. Power Co., 26 App. D. C. 482; 34 W. L. R. 158. As to power of Commissioners of District to enact police regulation requiring a'U high-voltage wires to be thoroughly insulated. See Ih. As to right of public to presume that police regulation relative to in- sulation has been complied with. See lb. EivECTEic Light Companies — Embbzzlbment. 351 ELECTRIC LIGHT COMPANIES. The Potomac Electric Power Co. held capable of maintaining a suit to enjoin another electric company from breaking up the paving on 9th street and inserting its conduits without legal authority. Potomac Elec. Power Co. v. U. S. Blec. Co., 26 W. L. R. 19. The United States Electric Co. has no exclusive legal right to main- tain conduits and wires in that portion of the city east of Rock Creek. Ih. No power rested in the commissioners to issue to the United States Electric Co. the permit of Nov. 17, 1897, to extend its conduit on 9th street. Ih. Where an electric light company supplying a club with current, threat- ened to cut off the supply, held that the facts disclosed were such as jus- tified a continuance to final hearing of a temporary restraining order. Electric Lighting Co. v. Metropolitan Club, 6 App. D. C. 536 ; 23 W. L. R 465. ELEVATORS. As fixtures of building within mechanics' lien law. See Lefler v. Fors- berg, 1 App. D. C. 36 ; 21 W. L. R. 585. Admissibility, in action for injuries occasioned by the fall of an ele- vator, of evidence of defendant's insurance against accidents thereto. See Capital Construction Co. v. Holtsman, 27 App. D. C. 125 ; 34 W. L. R. 222. EMANCIPATION. See Parent and Child. EMBEZZLEMENT. I. What Constitutes. TI. Of Public Moneys, III. By Receivers. IV. Indictment. V. Evidence. VI. Penalties. VII. In General. I. What Constitutes. The retention of money without concealment and under a claim of right made in good faith, is not embezzlement; and the question whether the claim be well-founded is immaterial. Staples v. Johnson, 25 App. D. C. 155; 33 W. L. R. 183. The offense defined by § 834, Code D. C, is single, i. e., embezzlement, which under, the statute may be committed either by the unlawful con- version by the accused to his own use of property coming into his hands by virtue of his employment, or by fraudulently taking, making away with, or secreting such property with intent to convert to his own use ; and an indictment charging the embezzlement to have been committed by means of both methods is not bad for duplicity. O'Brien v. United States, 27 App. D. C. 263 ; 34 W. L. R. 546. To convict an accused of embezzlement under § 834 of the Code, the jury must find that he wrongfully converted to his own use money of his employer; but need not find that such conversion was with intent to de- fraud his employer. lb. 352 EMBEZZlvfiMgNT. An indictment alleging that a railway conductor, having collected tick- ets in the line of his duty, refrained from punching, delivering and report- ing them to the railroad company, and thereafter converted them to his own use in this District, held to charge the conductor with embezzlement, under § 834, Code D. C, by the wrongful conversion to his own use, within this District, of property which had come into his possession by virtue of his employment, and not with embezzlement by way of secre- tion with intent to convert, which latter act also constitutes embezzlement as defined in said section of the Code. Gassenheimer v. United States, 26 App. D. C. 432 ; 34 W. L. R. 80. Under an indictment charging the defendant with receiving embezzled goods, knowing the same to have been embezzled, it is necessary to prove, first, that the goods were embezzled in this District, and, second, that the defendant had received them with knowledge of that fact. lb. II. Of Public Moneys. Money in the charge and within the control of the State Department, paid to the United States on various accounts by foreign governments and collected by and through the State Department, and commonly known as the "Indemnity Fund," is public money of the United States within the letter and the spirit, and within the meaning and the intent of § 5488 Rev. Stat., the act of Mar. 3, 1875, arid the act of Feb. 3, 1879. Kieck- hoefer v. United States, 19 App. D. C. 405 ; 30 W. L. R. 219. A private member of the police force of this District assigned by the major of police for duty at the Police Court to collect fines for violations of municipal laws, etc., is not an officer of the District within the meaning of the act of Congress of Feb. 4, 1878. United States v. Williams, 26 W. L. R. 195. III. By Receivers. Sec. 841, Code D. C, comprehends not only cases where money coming into the hands of a receiver after the Code went into effect is embezzled by him, but also applies to a case where money came into the hands of a receiver before the Code went into effect, but was embezzled by him thereafter. Fields v. United States, 37 App. D. C. 433 ; 34 W. L. R. 382. The provision of § 841, Code D. C, for a forfeiture of commissions and charges in case of embezzlement by a receiver, is no part of the pun- ishment which the court, having jurisdiction of the offense, may im- pose, the question of such forfeiture being for the determination of the equity court in settling the final accounts of the receivership. Ih. IV. Indictment. In an indictment of a receiver for embezzlement, under § 841 of Code, it is not necessary to allege the particular manner in which he unlaw- fully and fraudulently converted the money and appropriated it to his own use. Pi>elds v. United States, 27 App. D. C. 433 ; 34 W. L. R. 382. An indictment under § 841, Code D. C, charging with precision and cer- tainty that defendant was appointed a receiver by order of court, and by virtue thereof came into possession of money alleged to be the property of a certain association, and that on a certain date, in this District, h? Embezzlement. 353 unlawfully and fraudulently converted and appropriated the same to his own use, and then and there embezzled the same, held to set out all the necessary elements of the offense as defined in said section without un- certainty or ambiguity. lb. The words "convert to his own use" have a well-known legal significa- tion; and it is not necessary, in an indictment charging embezzlement, to allege the particular means by which the conversion was effected. Gas- senheimer v. United States, 26 App. D. C. 433'; 34 W. L. R. 80. As to sufficiency of indictment under § 834 of Code. See United States V. Drennan, 35 W. L. R. 311. V. Evidence. In a prosecution for embezzlement by defendant of moneys collected by him for one H, witnesses were produced who testified to payments made him. The bookkeeper of H identified a "credit book" in which it was defendant's duty to enter collections made by him and which failed to show the pa5'ments testified to by said witnesses. He further testified that it was his custom each month to make out from the ledger kept by him and deliver to defendant statements of accounts of customers from whom defendant was to make collections, the items in each statement being added up and the total placed at the bottom, and at the same time the total of each statement was entered in lead pencil upon the ledger ac- count of the customer. Held, that the trial court properly admitted these lead pencil entries in the ledger in evidence for the purpose of refreshing the memory of the witnesses and enabling him to testify as to the amount of the statement of a customer for a particular month made by him and given to the defendant for collection. O'Brien v. United States, 37 App. App. D. C. 263 ; 34 W. L. R. 546. The inference that an accused has embezzled property by fraudulently converting it to his own use may be drawn from the fact that he has failed to pay over or to account for such property to the owner thereof. lb. On the trial of an indictment for receiving embezzled property with knowledge that it was embezzled, proof of guilty knowledge by the de- fendant at the time of his receipt of the property of which he is accused can not be supplied or aided by proof of the receipt or possession of other like property not shown to have been embezzled, and the admission of such evidence constitutes reversible error. Gassenheimer v. United States, 26 App. D. C. 432 ; 34 W. L. R. 80. Evidence of the receipt by the accused of other property shown to have been embezzled held admissible, whether such property be described in the indictment or not, as bearing upon the question whether defendant, at the time of receiving the property of which he is accused, had knowl- edge that the same was embezzled ; and it is not necessary that such other embezzled property shall be shown to have been received by the defends ant from the person from whom he obtained that for the receipt of which he is accused. lb. Proof that the ownership of money alleged to have been embezzled was in a certain association as alleged in the indictment, held sufiicient where it appeared that it was the proceeds of real estate belonging to said association, an attempted sale of which had been decreed to be set aside 354 Eminent Domain — Equitable Liens. and annulled as fraudulent. Fields v. United States, 37 App. D. C. 433; 34 W. L. R. 382. As to sufficiency of evidence to establish claim founded upon an alleged embezzlement. See Droop v. Ridenour, 11 App. D. C. 234; 25 W. L,. R. 481. VI. Penalties. The inclusion in the sentence of a defendant convicted of embezzle- ment, under § 841 of the Code, of the words "at hard labor." is not warranted by that section ; but the inclusion of such words does not render the judgment void, and the judgment may be modified by striking such words therefrom as surplusage. Fields v. United States, 27 App." D. C. 433; 34 W. L. R. 383. VII. In General. A charge of the trial court in a prosecution for receiving embezzled property that if the jury found that defendant received the property under such circumstances as would satisfy any man of ordinary intellir gence and caution that they had been embezzled, they would be "justified in assuming that he knew" that fact, held not error, though the use of the word authorized instead of justified would have been better. Gassen- heimer v. United States, 26 App. D. C. 432 ; 34 W. L. R. 80. What constitutes a factor or commission merchant within meaning of § 838, D. C. Code. Green v. United States, 35 App. D. C. 549; 33 W. L. R. 535. Appropriation of decoy letter held punishable under §§ 5467, 5468, Rev. Stat. Byram v. United States, 25 App. D. C. 546; 33 W. L. R. 458. See Malicious Prosecution. EMINENT DOMAIN. See Condemnation of Land. EMOTIONAL INSANITY. See Insanity. EMPLOYER AND EMPLOYEE. See Labor; Master and Servant; Patents. ENCLOSURE. As element of adverse possession. See Holtzman v. Douglas, 5 App. D. C. 397; 23 W. L. R. 146. ENGINEERS. See Licenses. ENLISTMENT. See Army and Navy. ENTIRETIES. See Estates. EQUAL PROTECTION OF LAWS. See Constitutional Law. EQUITABLE ASSETS. See Creditors' Bili,. EQUITABLE ASSIGNMENTS. See Assignments. EQUITABLE ESTOPPEL. See Estoppel; Trusts and Trustees. EQUITABLE GARNISHMENT. See Garnishment. EQUITABLE LIENS. See LiEns ; Trusts and Trustees. Equitable; Nuisancb — Equity. 3SS EQUITABLE NUISANCE. There is no such thing as an equitable nuisance. Akers v. Marsh, 19 App. D. C. 28; 29 W. L. R. 786. EQUITABLE ESTATES. As to application of rule against levying execution against. See Hess V. Norton, 2 App. D. C. 81 ; 22 W. L. R. 73. See also Estates. EQUITABLE SEPARATE ESTATES. See Estates; Married Wo- men. EQUITY PLEADING. See Pleading. EQUITY PRACTICE. See Practice and Procedure. EQUITY OF REDEMPTION. Is not subject to seizure and sale under execution. See Mayse v. Gaddis, 2 App. D. C. 20 ; 22 W. L. R. 46 ; Starr v. United States, 8 App. D. C. 552; 24 W. L. R. 502. See Mortgages and Deeds oe Trust. EQUIVALENTS. See Patents. EQUITY. I. Jurisdiction in General. 11. Multiplicity of Suits. III. Frauc . IV. Mistake. V. Contracts. VI. Trusts and Trustees. VII. Nuisance. VIII. Liens. IX. Recoupment- and Set-off. X. Office. XI. Accounts and Accounting. XII. Leases. XIII. Reformation and Cancellation of Instruments. XIV. Cloud on Title. XV. Sales. XVI. Maintenance and Alimony. XVII. Mortgages and Deeds of Trust. XVIII. Partition. XIX. Conversion of Real Estate. XX. Infants. XXI. Taxation. XXII. Elections. XXIII. Receivers. XXIV. Following Assets. XXV. Estoppel. XXVI. Interpleader. XXVII. Who May Invoke Jurisdiction. XXVIII. Remedy at Law. XXIX. Principles and Maxims. XXX. Res Judicata. XXXI. Pleading. XXXII. Practice. XXXIII. Evidence. XXXIV. Limitations and Laches. XXXV. In General. 356 Equity. I. Jurisdiction in General. Where real estate sold to a syndicate was conveyed to a third person, who executed notes for the deferred payments and a deed of trust to se- cure them, and immediately thereafter conveyed the property, subject to the deed of trust, to two trustees for the syndicate, such third person being merely a conduit of title and no consideration moving from him, and the arrangement having been entered into merely for convenience of the vendor and the syndicate and the vendor, agreeing not to hold such third person liable on the note, but look to the land for payment, the attempted enforcement of such notes against such third person as the maker thereof, either by the vendor or by his personal representatives after his death, presents a case for the intervention of equity by the process of injunction. Tobriner v. White, 19 App. D. C. 163 ; 29 W. L. R. 838. Affirming 29 W. L. R. 479. A suit for an injunction against the Secretary of the Interior, the gravamen of which is alleged continuous acts of trespass upon lands and easements of complainants situated in Arizona by agents and subordinate officers of such official, the principle question involved being the title to the land, is not maintainable in the courts of the District of Columbia. Irrigation Land & I. Co. v. Hitchcock, 28 App. D. C. 587 ; 35 W. L. R. 130. A court of equity is without jurisdiction to restrain acts of trespass upon lands in another jurisdiction, where the principle fact involved is that of title to the land. Columbia Sand Dredging Co. v. Morton, 28 App. D. C. 288; 34 W. L. R. 766. Consent of parties cannot give equity jurisdiction of a case properly triable at law. Palmer v. Fleming, 1 App. D. C. 528; 22 W. L. R. 1. An assignment of a part of a debt may be enforced in equity, and it is not necessary that the debtor should consent or promise to hold it or pay it to the assignee. Washington Brewery Co. v. Cosgrove, 34 W. L- R. 132. A court of equity has jurisdiction to subject the real estate of a de- ceased debtor to the payment of his simple contract debts, when personal assets are insufficient. Richardson v. Penicks, 1 App. D. C. 261 ; 21 W. L. R. 707. A court of equity has jurisdiction of a suit by an undisclosed principal upon a sealed instrument. Whelpley v. Ross, 25 App. D. C. 207 ; 33 W. L. R. 371. Equity is without jurisdiction to compel a mutual benefit association to levy an assessment for payment of a policy, the remedy at law being ade- quate. Van Court v. Sons of Temperance, 23 W. L. R. 505. Where it appears that an instrument intended to give effect to a prior written agreement between the parties is inconsistent with the terms thereof, there is a manifest equity to correct the error. Northwest Bck- ington Imp. Co. v. Campbell, 35 W. L. R. 62. A court of equity having acquired jurisdiction may retain it for the purpose of granting complete relief, including allowance to a defendant for expenses. Hopkins v. Grimshaw, 165 U. S. 342. Where a court of equity has acquired jurisdiction of a case on equitable grounds, it will administer complete reUef although such as would prop- erly come from a court of law; but jurisdiction is not acquired by the mere allegation of equitable ground in a bill; allegations and proof are Equity. 357 both required and when the proof fails the jurisdiction fails also. Palmer V. Fleming, 1 App. D. C. 528 ; 22 W. L. R. 1. A case cognizable at common law cannot be combined in a proceeding in equity with a case properly of equity jurisdiction so as to entitle a court of equity to maintain cognizance of both. Giesy v. Gregory, 1.5 App. D. C. 49; 27 W. L. R. 416. Courts of equity will deal only with civil or property rights, and have no facility for preventing "loss from a sentimental standpoint." Syme v. Poole, 36 W. L. R. 18. The fact that an alleged infringer of a patent covering a process and machine is not a manufacturer of the article but a mere user, does not affect the jurisdiction of a court of equity to entertain a suit for in- fringement. Busch V. Jones, 16 App. D. C. 23; 28 W. L. R. 535. As to. equity jurisdiction of Supreme Court D. C. to assess damages on an undertaking executed under Rule 42, occasioned by wrongful is- suance of injunction restraining enforcement of executions on judgments against an insolvent debtor. See Dodge v. Cohen, 14 App. D. C. *582 ; 27 W. L. R. 334. As to effect of act of 1890, establishing Rock Creek Park, on equity jurisdiction of Supreme Court D. C. See Craighill v. Van Riswick, 8 App. D. C. 185; 24 W. L. R. 177. II. Multiplicity of Suits. The mere possibility that a multiplicity of suits may occur, if there be colorable ground for them created by the acts or conduct of the plaintiff himself, is not a ground for relief in equity. Pechstein v. Smith, 14 App. D. C. 27; 27 W. L. R. 168. That separate suits for the recovery of taxes paid under protest for each successive year, would be necessary, furnishes no ground for a resort to equity, as each suit would constitute a distinct cause of action. The remedy by injunction to prevent a multiplicity of suits is allowed only where the subject-matter of litigation is substantially the same. Moore V. Miller, 5 App. D. C. 413 ; 23 W. L. R. 65. III. Fraud. Equity will regard a vendee who has procured a conveyance of real estate by fraud, as holding the legal title for the benefit of the vendor, where rights of innocent purchasers are not affected. Godfrey v. Button, 16 App. D. C. 117; 28 W. L. R. 171. The suppression of the truth under circumstances which demand that it shall be spoken, equally with the assertion of that which is false, may constitute an injury for which a court of equity will afford relief. Sig- gers V. Snow, 15 App. D. C. -575 ; 28 W. L. R. 80. To set aside a deed on the ground of fraud, it is not sufficient to raise merely a suspicion of the fairness of the transaction, but the proof must be clear and satisfactory. Godfrey v. Button, 27 W. L. R. 50.' Where a bill to set aside a deed charges actual and intentional fraud, the burden is on the plaintiff to prove the charge made; and he can not rely on proof of other circumstances which might amount to a case for relief under a distinct branch of equity, lb. 358 Equity, As to whether a court of equity has jurisdiction of a proceeding to re- cover money paid by plaintiff through fraudulent representations of de- fendant for stock and stock options, the allegations and proof showing a partnership agreement between the parties in respect of the purchase and holding of the options. See Tyler v. Moses, 13 App. D. C. 428; 26 W. L. R. 771. A benefit procured by one occupying a fiduciary relation to another with opportunity for the exertion of undue influence will not, in equity, be allowed to stand without clear and satisfactory proof of the entire fair- ness of the transaction. Smith v. Smith, 29 App. D. C. 408; 35 W. L. R. 273. . IV. Mistake. By an arrangement between coparceners the property was . sold to them, each receiving a portion thereof, and the sales confirmed by the court, and $2,000 was left in the hands of the trustees for the payment of taxes on the property; and the trustees supposing they had paid all taxes distributed the residue of such fund among the parties in interest. It was afterwards discovered that taxes on one of the lots had not been paid and the owner paid them. Held, that he was entitled to be re- imbursed out of proceeds of sale of other real estate of decedents not included in the arrangement between the coparceners. Nelson v. Worth- ington, 3 App. D. C. 503; 22 W. L. R. 416. V. Contracts. Meeting of minds is essential to the validity of a contract and in the absence thereof equity will rescind a contract. Lyon v. Smith, 2 App. D. C. 37; 22 W. L. R. 131. As to rescission for fraud, of contract for purchase of real estate. See Shappirio v. Goldberg, 20 App. D. C. 185 ; 30 W. L. R. 450. As to intervention of equity to enforce contract which is void only by reason of the incapacity of the parties to contract with each other. See McCormick v. Hammersley, 1 App. D. C. 313; 21 W. L. R. 775. As to power of court of equity to allow compensation for expenditures made by husband under contract with wife, in lieu of specific perform- ance. See lb. A court of equity will not enforce the execution of a parol agreement between a husband and wife that certain real estate which he had con- veyed to her should be held by her as his agent and trustee and for his benefit, there being nothing on the face of the conveyances to indicate the trust, such agreement being void under § 7 of the Statute of Frauds. McCartney v. Fletcher, 11 App. D. C. 1; 25 W. L. R. 327. A court of equity will not compel a purchaser of real estate to take a doubtful title. Am. Sec. & Trust Co. v. Muse, 4 App. D. C. 12; 22 W. L. R. 409. As to enforcement in equity of provision of building contracts relative to damages for delay. See Emack v. Campbell, 14 App. D. C. 186; 27 W. L. R. 214. Evidence to justify enforcement of specific performance of contract. Riordan v. Stout, 17 App. D. C. 397 ; 29 W. L. R. 141. Equitv. . 359 As to jurisdiction in decreeing specific performance. See Knott v. Giles, 27 App. D. C. 581; 34 W. L. R. 414. As to enforcement of verbal contract to make conveyance of property by will. See Coveney v. Conlin, 20 App. D. C. 303; 30 W. L. R. 467. As to decreeing specific performance of oral contract concerning land. See Whitney v. Hay, 15 App. D. C. 164 ; 27 W. L. R. 430. A decree dismissing, without prejudice, a bill for specific performance of a sale of lands in New Mexico, on the ground that it failed to show that complainants stood in privity of estate with the person with whom the alleged agreement was made, affirmed, but with leave to appellants, should they so elect before the mandate was sent down, to amend their bill ; otherwise the decree of affirmance to be made absolute. Johnson v. Blkins, 23 App. D. C. 486; 32 W. L. R. 440. That an indebtedness is contracted for the purchase and consumption of intoxicating liquors is not ground for the refusal of aid by a court of equity in enforcing it. Sis v. Boarman, 11 App. D. C. 116; 25 W. L. R. 431. A court of equity will not enjoin the Postmaster General from violating a contract made with a bidder. Purcell Envelope Co. v. Smith, 26 W. L. R. 515. The specific performance of a contract for the sale of trust property will not be decreed unless it appears that the purchase price is the full value thereof, Jones v. Holliday,2 App. D. C. 279; 22 W. L. R. 169. In a proceeding in equity to charge a trust estate with the payment of a monthly sum to complainant, the bill alleged an agreement on the part of one D., by whose will the estate had been vested in the trustee, that in consideration of certain services rendered by complainant to said D., the latter promised to pay to complainant during life the sum of $50 monthly. Held, that the evidence was sufficient to prove the contract as alleged by the bill. Wash. Loan & Trust Co. v. Darling, 21 App. D. C. 132; 31 W. L. R. 129. Where an agreement provides for the organization of a corporation to handle patents obtained by one of the parties, and the assignment of such patents to the corporation, and the agreement has been performed in part, a bill will lie to enjoin the patentee from manufacturing the de- vices patented and for an accounting and assignment of the patents, even though the agreement while still executory was too vague and uncertain to be then enforced, and was in part for personal services. Sanche v. Electrolibration Co., 4 App. D. C. 453 ; 22 W. L. R. 769. As to specific performance of contracts. See Contracts. VI. Trusts and Trustees. A court of equity has no jurisdiction, merely because the parties in interest desire it and because of their great number, to appoint trustees to institute suits in ejectment on behalf of persons fully competent to sue for themselves; and trustees so appointed are without title sufficient to support an action of ejectment. Walter v. Slater, 5 App. D. C. 357; 23 W. L. R. 104. A court of equity in this District has jurisdiction of a suit to declare and enforce a trust respecting real estate in another jurisdiction, where 360 . Equity. the defendant is found here. Stone v. Powlkes, 29 App. D. C. 379; 35 W. L. R. 261. As to power of court of equity to remove trustee. See May v. May, 167 U. S. 310. As to substitution of trustee in deed of trust. See Marshall v. Kraak, 23 App. D. C. 129; 32 W. L. R. 130. A resulting trust is a creature of equity, and can be enforced in a court of chancery only. Hopkins v. Grimshaw, 165 U. S. 342. Equity will not allow a trust to fail for want of a trustee to execute it. Woarms v. Hammond, 5 App. D. C. 338; 23 W. L. R. 131; Colbert v. Speer, 24 App. D. C. 187 ; 32 W. L. R. 678. A court of equity will not, upon a bill by a trustee for instructions in the execution of his trust, decide questions depending upon future events and aflfecting the rights of parties not in being, and unnecessary for the guidance of the trustee. May v. May, 167 U. S. 310. Enforcement of resulting trust arising after failure of special charitable trust. Columbian University v. Taylor, 25 App. D. C. 124; 33 W. L. R. 181. As to allowance of counsel fees out of trust fund. See Bohrer v. Otter- back, 2 App. D. C. 78; 22 W. L. R. 54. The terms and conditions of a trust deed intended to serve merely the purposes of a mortgage, are within the control of a court of equity. Woarms v. Hammond, 5 App. D. C. 338j 23 W. L. R. 131. As to application of rule in Shelley's case in respect of executory trust. See Sims v. Georgetown College, 1 App. D. C. 72 ; 21 W. L. R. 595. VII. Nuiseince. To maintain a suit to enjoin a nuisance, the nuisance must be plain and palpable and such as demands urgent action to save complainant from irremediable injury. The mere existence of the nuisance does not justify the intervention of equity, as in ordinary cases there is ample remedy at law by way of damages. Johnson v. Bait. & O. R. R. Co., 4 App. D. C. 491; 22 W. L. R. 781. There is no such thing as an equitable nuisance and one seeking relief by injunction against a nuisance must prove such substantial injury as would entitle him to a verdict in an action at law. Akers v. Marsh, 19 App. D. C. 28; 29 W. L. R. 786. Jurisdiction of equity to restrain a public nuisance at the suit of a pri- vate individual. D^wey Hotel Co. v. U. S. Blec. L. Co., 17 App. D. C. 356; 29 W. L. R. 71. VIII. Liens. Under the rule that equity regards as done that which was agreed to be done, an agreement in writing for a deed of trust is a valid contract fixing a specific lien on the property, and will be specifically enforced. Woarms v. Hammond, 5 App. D. C. 338 ; 23 W. L. R. 131. Equity will not impose an equitable lien upon land in favor of one who makes improvements thereon, knowing the title is in another. Market Co. v. Dis. of Col, 172 U. S. 361, affirming 6 App. D. C. 34. As to enforcement of equitable lien in favor of contractors where agree- Equity. 361 ment to loan money with which buildings erected not fulfilled. See Prance V. Coleman, 35 W. L. R. 193. Evidence to establish equitable lien on property for the amount of pur- chase price advanced by one of two purchasers. Long v. Scott, 24 App. D. C. 1; 32 W. L. R. 326. A vendor's lien for unpaid purchase-money will not be decreed in the absence of proper parties to the suit, even could such relief be properly granted under a prayer for general relief in a bill filed for a totally differ- ent purpose. Van Hook v. Prey, 13 App. D. C. 543 ; 27 W. L. R. 39. As to enforcement of vendor's lien. See Pleasants v. Pay, 13 App. D. C. 337; 26 W. L. R. 638. A lien given an attorney by an agreement with his client for the prosecution of a claim against the United States, upon any draft issued in payment of such claim, is enforceable in equity. Roberts v. Consaul, 24 App. D. C. 551; 33 W. L. R. 98. IX. Recoupment and Set-Off. A creditor, having unliquidated demands against another not reduced to judgment, may set them off in equity against a judgment recovered against him by that other person, if there has been no opportunity to set them off in the suit which led to the judgment, and if the person who holds the judgment is insolvent; and the creditors right to proceed in equity is not affected by the fact that at the time of filing his bill in equity there was pending an action at law, instituted by him, wherein the claim which was the subject of the set-off was involved, where subsequent to the filing of the bill the action at law was abandoned by the plaintiff and its dismissal procured by the defendant for failure of prosecution. Pedarwisch v. Alsop, 18 App. D. C. 318; 29 W. L. R. 367. The mere existence of cross-demands will not justify a set-off in equity. Carver v. Hall, 3 App. D. C. 170 ; 32 W. L. R. 290. Where a party lawfully in possession under a defective title makes permanent improvements, if relief is sought in equity by the true owner he will be compelled to allow for such improvements, especially where such compensation is sought merely as an off-set to a claim by the true owner for the rents and profits during the period of the wrongful occu- pancy. Mclntire v. Pryor, 10 App. D. C. 432; 25 W. L. R. 263. Before a court of equity will make an allowance to a party wrongfully in possession as against the rightful owner, it must appear that what has been done in respect to the premises and for which reimbursement is claimed is in some way beneficial to the rightful owner or necessary for the maintenance of the property. Hopkins v. Grimshaw, 17 App. D. C. 1; 28 W. L. R. 614. A purchaser in good faith, who is evicted in ejectment at the suit of one holding the true legal title, can not maintain a suit in equity for compensation for improvements made by him upon the property during his occupancy, when he has not been misled in any way by the action of the true owner. Anderson v. Reid, 14 App. D. C. 54; 27 W. L. R. 66. The insolvency of a party against whom a set-off is claimed is a suf- ficient ground for equitable interference; and the non-residence of the 362 figuiTV. party against whom the set-off is asserted is a good ground for equitable relief. Fitzgerald v. Wiley, 22 App. D. C. 339 ; 31 W. L. R. 491. As to whether the provisions of §§ 3 363, 1365, Code D. C, relating to set-off, are not to be considered as furnishing a rule for adoption in equity in a case where its jurisdiction is invoiced by reason of certain conditions rendering the same necessary to complete relief in one proceeding See lb. Where a bill seeks to foreclose a mortgage on certain inventions and domestic and foreign patents to be granted therefor, damages growing out of the same transactions, sought to be recouped by defendant by means of a cross-bill, consisting of loss of profits by the mortgagor on the sale of one of the patents abroad, which he had negotiated at a fixed price, but which had failed of consummation by failure of mortgagees to per- form their obligations under the mortgage, held, not too remote and speculative. lb. The C. Company, contractors for a public work, made an agreement with M. and J. to do the work for 90 per cent, of the contract price, and the latter also agreed to lend the company $10,000. M. and J. de- siring to be released from their agreement, turned over the plant to the C. Company, which agreed to repay the $10,000, less $2,000 already repaid. Subsequently, a receiver having been appointed for the C. Com- pany, an agreement was made with the S. Company, which took over the plant at an agreed valuation to be paid in instalments as the work progressed, the instalments being retained by the receiver out of moneys paid by the Government, and also agreed to pay M. and J. the $8,000 due them by the C. Company. In a suit respecting the distribution of funds in the hands of the receiver, held, that a claim by the S. Company that there had been a duplication of assets in the schedules of the prop- erty turned over to it was not made out, and that the C. Company having realized a profit on the transaction, M. and J. were entitled to receive the $8,000 as agreed notwithstanding the work had been done by the S. Company at a large loss. Sand Filtration Corp. v. Cowardin, -29 App. D. C. 571; 35 W. L. R. 366. X. Office. A suit in equity is not the proper remedy to determine title to office in private corporation; it should be quo zvarranto. Hayes v. Burns, 25 App. D. C. 242; 33 W. L. R. 200. A court of equity has no jurisdiction in any case where the question of the right to hold office is in dispute between two parties, but will direct parties to pursue their remedy at law, unless there be some distinctive ground of equity jurisdiction, in which case the court will proceed and give complete reHef by way of final decree ; and so held that in this District, where the writ of quo warranto is unknown, an injunction against the wrongful assumption of office will lie where the relief sought neces- sarily involves an accounting and discovery by defendants. Torbert v. Bennett, 24 W. L. R. 149. Where it appears that the title to offices in a domestic corporation is the sole or main question at issue in a suit in equity, that the defendants are in possession under a claim of election, and that the only standing of complainants is by- virtue of a claimed election, equity is without juris- Equity. 363 diction ■ to try the question, and the bill should be dismissed, leaving complainants to determine the question by quo warranto. Hayes v. Burns, 25 App. D. C. 242; 33 W. L. R. 200. XI. Accounts and Accounting. The expiration of a patent pending a suit to enjoin its infringement and for an accounting will not defeat the jurisdiction of equity to take the account prayed. Busch v. Jones, 16 App. D. C. 23 ; 28 W. L. R. 535. Where the evidence in a suit by creditors of a husband shows him to have an interest in property jointly with his wife to whom it has been conveyed, but does not disclose the extent of the interest, a court of equity will require an account to be taken in order to determine that interest. Turner v. Gottwals, 15 App. D. C. 43; 27 W. L. R. 372. Where one T., who for years had entrusted defendants' testator with money to invest and reinvest, by his will gave all his property to four minor nephews and nieces and directed defendants' testator to distribute the property equally between them ; and thereafter defendants' testator paid over the bulk of the fund in his hands to the father of the benefici- aries, who receipted therefor as "natural tutor and agent of his minor children," and appropriated the fund to his own uses, with the exception of small sums for support and education of the children and advances to them. Held, that the relation between defendants' testator and T. had been that bi trustee and cestui que trust and continued as such between the latter and the beneficiaries under the will, and that a court of equity had jurisdiction to require an accounting of the trustee's executors at suit of the beneficiaries. Darlington v. Turner, 24 App. D. C. 573 ; 33 W. L- R- 114; 3". C. 202 U. S. 195. K. having contracts with the District for certain public improvements made an agreement with M. whereby the latter was to become surety on his bond and furnish money to commence the work, and receive one- half the profits. K. had entire management of the work, receipts, ex- penditures, etc. He was the son-in-law of M., who trusted him implicitly. Relying upon his statements, M. accepted a certain sum in settlement of his share of the profits, and did not learn until years afterwards that the profits were far in excess of what had been reported to him by K. On discovering the fraud, M. filed a bill to have the account re-opened and restated. This was some 16 years after the settlement. Held, that the relation of the parties was more that of trustee and cestui que trust than of co-partners and that it was the duty of a court of equity to have the account opened and taken de novo, the circumstances being such as to excuse the delay in bringing suit. Miirphy v. Kirby, 3 App. D. C. 207; 22 W. L. R. 306. XII. Leases. A lessee relieved from forfeiture of lease for failure to pay taxes as required where it was shown that it was the custom of lessor to cfollect the amount from lessee and pay the taxes herself and in this instance did not do so. Kann v. King, 25 App. D. C. 182 ; 33 W. L. R. 147. Equity will relieve from forfeiture of a lease for non-payment of taxes where such payment enters into the rental consideration of the lease. Wehh V. King, 21 App. D. C. 141 ; 31 W. L. R. 79. 364 Equity. A lessee, required by the terms of his lease, to pay taxes on the demised property, and who by inadvertence suffers the property to be sold for taxes may maintain a suit in equity to have the tax deed declared void. lb. XIII. Reformation and Cancellation of Instruments. Real estate was purchased by a husband and wife and the title taken in their joint names. Their intention was to hold as tenants in common, and they were advised by a mutual friend that the deed of conveyance to them had that effect ; but, under the law then in force in this District, the deed had the effect of vesting the estate in them as tenants by the entireties. Held, that a court of equity would, under the circumstances of this case, reform the deed so as to make it express the intention of the parties. Marshall v. Lane, 27 App. D. C. 376 ; 34 W. L. R. 290. In such case the mutual mistake of the parties as to the title under which they held is analogous to a mistake of fact in that it was a mistake of private right rather than of general law relating to the subject-matter of an ordinary contract. 76. In all cases where a court of equity is asked to reform a written in- strument because of a mistake of fact, it must appear that the mistake is mutual. A mistake on one side may be ground for rescinding but not for reforming a written agreement. Memorial Church v. Northwestern Nat. Ins. Co., 33 W. L. R. 692. In a suit for the reformation of an agreement on the ground of mis- take, before the relief prayed for can be granted the court must be satis- fied by convincing evidence that a mistake has been made or an accident has occurred which has resulted in a written agreement different from that intended by the parties. lb. As to correction of misdescription of property covered by deed of trust. See Manogue r. Bryant, 15 App. D. C. 245 ; 27 W. L. R. 478. As to superiority of equitable right of a deed of trust creditor over that of a judgment creditor in property omitted from the deed by mistake. See lb. A court of equity will not decree void articles of separation between husband and wife providing merely for the support of the wife. O'Connell V. Noonan, 1 App. D. C. 332 ; 21 W. L. R. 744. Equity will not decree the cancellation or rescission of instruments void upon their face, but only such the invalidity of which is shown by ex- traneous evidence. lb. As to setting aside a conveyance as in fraud of creditors. See White V. Glover, 23 App. D. C. 389 ; 32 W. L. R. 241. In a proceeding to vacate two deeds on ground of grantor's mental incapacity, evidence of lack of mental capacity held insufficient. Critch- field V. Basterday, 26 App. D. C. 89; 33 W. L. R. 504. As 'to cancellation of assignments. Campbell v. Dexter, 17 App. D. C. 454; 29 W. L. R. 61. XIV. Cloud on Title. One seeking relief from an irregular tax sale and deed as a cloud upon his title must offer to reimburse the purchaser at the tax sale, or the Equity. 365 holder of the tax deed, for taxes paid by him, with interest and costs. Knox V. Caddis, 1 App. D. C. 336 ; 21 W. L. R. 743. The question of whether the record of a deed reads "lot seventy'' or "lot twenty" is one of fact determinable at law and not in equity in a proceeding to remove cloud on title. Mayse v. Gaddis, 2 App. D. C. 20; 23 W. L. R. 46. Where the invalidity of an assessment against property for alleged benefits resulting from the opening of a minor street is not apparent on the face of the record, but must be shown by matters of fact aliunde, the right of a complainant to resort to a court of equity to have the cloud upon his title created by such assessment removed is clear. Handley v. Macfarland, 34 W. L. R. 114. XV. Sales. A court of equity has no jurisdiction to decree the sale of real estate ■ of a lunatic merely for the purpose of better investment. Clark v. Mathewson, 7 App. D. C. 382 ; 24 W. L. R. 41. Prior to the Code a court of equity was without jurisdiction to decree the sale of a vested remainder in fee of an infant at the suit of the life tenant; nor could it, at the suit of a sole life tenant, decree the sale of a contingent interest in land limited over by will or deed to persons not the issue of such life tenant. Morse v. Hine, 29 App. D. C. 433; 85 W. L. R. 334. Equity will annul a sale of real estate made by an agent employed to make sale. Codfrey v. Button, 16 App. D. C. 117 ; 38 W. L. R. 171. Where a deed of trust on chattels provided that on default the trustee might take possession and sell the same, a court of equity will not enjoin a sale thereunder because the trustee had not taken possession; the grantor being in possession, notwithstanding his default. Sullivan v. Bailey, 21 App. D. C. 100 ; 31 W. L. R. HI. As to setting aside sale under deed of trust. See Anderson v. White, 2 App. D. C. 408; 23 W. L. R. 159. XVI. Maintenance and Alimony. The power of courts of equity in this District to grant maintenance to a deserted wife in a suit instituted for that special purpose, and as inci- dent thereto to grant alimony pendente lite and counsel fees, is a part of the general equity jurisdiction, and not dependent for its existence upon any special statute ; such power is not modified or affected by § 980 of Code, but expressly reserved by § 1640. Lesh v. Lesh, 31 App. D. C. 475 ; 31 W. L. R. 288. A court of equity has power to decree alimony as independent sub- stantive relief. Tolman v. Tolman, 1 App. D. C. 299 ; 21 W. L. R. 771. XVII. Mortgages and Deeds of Trust. Transactions between mortgagor and mortgagee are jealously scrutin- ized by equity and if an undue advantage has been taken of the ignorance and necessities of a mortgagor will, if possible, reHeve him of a hard bargain made by the mortgagee. Lyon v. Smith, 2 App. D. C. 37; 22 W. L. R. 131. 366 Equity. XVIII. Partition. A court of equity will not decree partition where the title of complain- ant is disputed, but will retain the bill in order to enable him to estab- lish his title at law. Mudd v. Grinder, 1 App. D. C. 418; 31 W. L. R. 783 ; Roller v. Clark, 19 App. D. C. 539 ; 30 W. L. R. 323. Parties having a purely equitable title in land may maintain a bill for partition. Hopkins v. Grimshaw, 165 U. S. 343. While questions of title will not be tried in a suit for partition, and where land appears to be held adversely to a complainant who seeks par- tition of it he must establish his title at law before equity will proceed to entertain his suit for partition, a mere averment by a defendant in his answer adverse to the complainant's right does not make a question of title so as to oust the jurisdiction of a court of equity. Smith v. Butler, 15 App. D. C. 345; 37 W. L. R. 770. A court of equity in which partition is sought has the right to examine at least prima facie into the sufficiency of exclusive titles set up in bar of partition, and either to adjudicate them finally itself or remit them to a court of law for adjudication. lb. In a suit for partition it is for the court itself, and not for the parties, to determine whether there is a question of title raised which would con- stitute a bar to its further proceeding, with the right to the defendant to have the decision reviewed on appeal. Ih. As to whether a court of equity can entertain a bill for partition where the parties are not in actual possession. See Roller v. Clark, 19 App. D. C. 539; 30 W. L. R. 323. XIX. Conversion of Real Estate. There is no general power in equity to order the conversion of realty into personalty upon the ground of advantage to all parties. Am. Sec. & Trust Co. V. Muse, 4 App. D. C. 13; 33 W. L. R. 409. A court of equity is without power to order a sale and conversion into personalty on the application of a life tenant where the limitation over is contingent upon the marriage of the life tenant and her having issue from such marriage, and the question of their survivorship of her does not arise. Construing §§ 969 to 973, R. S. D. C. lb. XX. Infants. As to maintenance of bill against deceased infant's heir-at-law to charge infant's estate with indebtedness due for the infant's support and education. See Richardson v. Penicks, 1 App. D. C. 261 ; 21 W. h. R. 707. XXI. Taxation. As to when equity will intervene to grant relief from taxation. See Graighill v. Van Riswick, 8 App. D. C. 185 ; 24 W. L. R. 177. As to when collection of a tax will be restrained. See Burgdorf v. Dis. of Col., 7 App. D. C. 405 ; 24 W. L. R. 21. XXII. Elections. While a court of equity may inquire into the kgality of votes cast at an election held by a corporation, and reject such as are illegal, it can- Equity. 367 not, generally, enjoin parties claiming corporate offices from acting in that capacity. Archer v. Shoemaker, 26 W. L. R. 98. Where, at a meeting of the members of a mutual insurance company for the election of managers, resolutions are adopted hmiting the right to vote by proxy, a right which had been recognized for more than thirty years, no notice of such resolutions having been given and those not present not being allowed to vote their proxies, a court of eqtiity has jurisdiction to declare the election void and to enjoin the counting of the votes and declaration of the result. Johnson v. Walker, 28 W. L. R. 187. XXIII. Receivers. Where, in a proceeding for the appointment of a receiver of rents and profits of real estate pending an action of ejectment which could not be tried for a year or more, it appears from the pleadings that the complainant has a clear title to the property as the purchaser at a sale under a deed of trust and that possession being wrongfully withheld by defendants who are converting to their own use such rents and profits and that they are insolvent and will be unable to respond to any judgment recovered therefor. Held, that a court of equity has jurisdiction to ap- point such receiver. Whyte v. Spransy, 19 App. D. C. 450; 30 W. L. R. 182. XXIV. Following Assets. A creditor may follow the assets of an intestate debtor into the hands of his distributees. Glenn v. Sothoron, 4 App. D. C. 125 ; 22 W. L. R. 649. Where a husband, in prejudice of his creditors, advances a substantial sum, in conjunction with money of his wife, to pay the consideration for property conveyed to his wife, his creditors may in equity pursue his in- terest in the property in the hands of his wife and subject it to their claims. Turner v. Gottwals, 15 App. D. C. 43 ; 27 W. L. R. 372. XXV. Estoppel. One who, by a representation that it was secured by a first mortgage, induces another to accept a note, the fact that the mortgage embraced a second note also in which he was payee not being made known to her, is estopped to deny the truth of his representation; and as to his rights, as the holder of such second note, he will be treated in equity as a second mortgagee; and his transferee after maturity has no superior rights. Cropley v. Byster, 9 App. D. C. 373 ; 24 W. L. R. 829. XXVI. Interpleader. Right of possessor of fund claimed by two persons to require them to interplead and determine their respective claims, not affected by fact that one of the claimants has filed suit in another jurisdiction to recover the fund. Kellogg v. Mutual Life Ins. Co., 25 App. D. C. 36; 33 W. L. R. 103. Amendment of bill of interpleader and entry of decree sustaining bill in less than ten days thereafter not error. 76. Sufficiency of cause for filing bill of interpleader. lb. XXVII. Who May Invoke Jurisdiction. A bill in equity by an electric lighting company to enjoin the construe- 368 Equity. tion of certain private conduits and pipes, under a permit granted by the Commissioners of the District of Columbia under the act of Congress of May 26, 1900, will not lie upon the ground that complainant is a taxpayer, in the absence of a showing that by reason of the granting and execution of the permit he will be injured or wronged in his character of taxpayer; nor on the ground that complainant has a contract for the exclusive supply of light and heat to one of the defendants to whom it is alleged the permittee proposes by means of the conduit to supply light, etc. Dewey Hotel Co. v. U. S. Blec. Light Co., 17 App. D. C. 356; 29 W. L. R. 71. A court of equity has jurisdiction of a proceeding by a resident tax- payer to enjoin the District authorities from paying out moneys under a contract with a private corporation alleged to have been made without legal authority. Roberts v. BradAeld, 13 App. D. C. 453 ; 26 W. L. R. 242. It is the right of a resident taxpayer to invoke the interposition of a court of equity to prevent an illegal disposition of the funds or property of the municipality, or the illegal creation of a debt which he, in com- mon with other property holders of the community, may otherwise be compelled to pay, provided it does not appear that jurisdiction is invoked simply to promote ulterior or private objects of the party applying, or objects other than those alleged, irrespective of any injury he may suffer as a taxpayer. Downing v. Ross, 1 App. D. C. 251; 21 W. L. R. 683. The owner of the record title to real estate cannot maintain a bill in equity under § 111 of Code. Harvey v. Miller, 24 App. D. C. 51; 32 W. L. R. 459. Right of equitable beneficial owner of real estate to sue for release of property from deed of trust given by one in whom the legal title was vested. Whelpley v. Ross, 25 App. D, C. 207; 33 W. L. R. 371. A vendor of stock which has not been transferred on the books of the corporation has no standing in a court of equity to enforce equitable rights appurtenant only to the beneficial ownership of the stock. Scanlan V. Snow, 2 App, D. C. 137 ; 22 W. L. R. 62. One corporation, consisting of some of the members of another cor- poration, has no standing in a court of equity to obtain redress for grievances committed against its members by such other corporation, when, as to such grievances the corporations are strangers to one another. German Bvang. Sac. v. Prospect Hill Cemetery, 3 App. D. C. 310; 22 W. L. R. 122. Where a contract sought to be enforced against a corporation is in contravention of the law under which such corporation was organized, none of the parties to the contract can be heard in a court of equity to ask for its enforcement or be allowed aid in avoidance of its provisions. Ambler v. Archer. 1 App. D. C. 94; 31 W. L. R. 600. The Commissioners of the District may maintain a bill in equity to en- join the maintenance of a show window projecting beyond the building line and upon the public parking. Guerin v. Macfarland, 37 App. D. C. 478; 34 W. L. R. 372. Courts of equity have jurisdiction to hear complaints of those who as- sert that their lands are about to be assessed and subjected to liens under an unconstitutional statute. Wilson v. Lambert, 168 U. S. 611. Equity. 369 A court of equity has jurisdiction of a suit to establish a will of real estate and to perpetuate the, testimony of the attesting witnesses thereto, brought by the executrices of the will, who, besides being residuary devisees are made trustees for an infant legatee and required to invest the amount of the legacy for her benefit, it being necessary to raise the legacy out of the real estate because of the insufficiency of the personal estate for its payment. Readman v. Ferguson, 13 App. D. C. 60; 26 W. L. R. 389. A bill by and against a non-resident, to set aside an alleged fraudulent conveyance of real estate and to subject the property to the satisfaction of a debt contracted in another jurisdiction, is not maintainable where it is merely alleged that defendant had no property in the jurisdiction where suit brought which could be reached by any known process. Hess v. Horton, 2 App. D. C. 81; 22 W. L. R. 73. XXVIII. Remedy at Law. The rule that courts of equity have no jurisdiction to grant relief where plain and adequate remedy can be had at law is most closely adhered to in all the United States courts in accord with the provisions of the Constitution establishing the distinction between law and equity and pre- serving the right of trial by jury. Hess v. Horton, 2 App. D. C. 81 ; 33 W. L. R. 73. A party has no right to come into a court of equity for relief if he has a good defense at law, and can not show some clear, equitable ground for his application. Pechstein v. Smith, 14 App. D. C. 27 ; 27 W. L. R. 168. The mere assertion of an equity will not sustain a bill ; but the case stated must show sufficient equity by the allegation of facts to satisfy the court that there is an equitable element involved that can not be availed of at law. lb. Whether a municipal corporation is acting, or has acted, within the limits of powers intrusted to it, involves an examination of legal prin- ciples, unmixed with equity; and, in general, equity is without jurisdic- tion to restrain, review or set aside, even if irregular or illegal, the pro- ceedings of such corporation. Deivey Hotel Co. v. U. S. Elec. L. Co., 17 App. D. C, 356 ; 29 W. L. R. 71. The assignee of a chose in action having a complete and adequate remedy at law, cannot maintain a suit in equity to recover his demand merely because his interest is an equitable one. Glenn v. Sothoron, i App. D. C. 125; 22 W. L. R. 649. Where in a suit in equity to vacate a judgment of a justice of the peace awarding possession of leased premises to the landlord, to have the possession of the landlord declared as in trust for the tenant, for an ac- counting, and to recover the value of certain improvements, it appears that independently of the judgment of the justice the landlord was entitled to possession of the premises under the terms of the lease, and that such premises were vacant at the time of her re-entry, the bill should be dis- missed, but without prejudice to the right of complainant to proceed at law fpr the value of improvements placed by him on the premises, if any 370 Equity. such right exists. HolUdgc v. Moriarity, 17 App. D. C. 530, 29 W. L. R. 248. . A court of equity is without jurisdiction of a suit to recover a sum awarded as alimony by a final decree passed by a court in another juris- diction, the decree being for an ascertained and specific sum and uncondi- tional, there being a plain, adequate and complete remedy at law. Davis V. Daris, 35 W. L. R. 206. Where a bill in equity for the specific performance of a contract for the sale of land alleges that, after the making of the contract by defend- ant, complainant had entered into a binding contract to sell the property to the United States for a stated sum, a conveyance from the defendant being sought to enable complainant to perform that contract, the bill will be dismissed for want of jurisdiction in equity, there being an ade- quate remedy at law in an action to recover the difference between the price at which the defendant had agreed to sell and that contracted to be paid complainant by the United States for the property. Hasleton v. Miller, 25 App. D. C .337 ; 33 W. L. R. 217. In order for a court of equity to interfere by injunction to restrain a threatened trespass, it must appear that the case is one involving irrepara- ble loss or injury, and in which the courts of common law are unable to afford adequate relief. Harvey v. Miller, 24 App. D. C. 51; 33 W. L. R. 459. A suit in equity can not be maintained to have brought into court and cancelled certain bonds given to the United States to secure the perform- ance of contracts for carrying the mails, and to enjoin all action or con- templated action on the bonds, on the grounds that such bonds were filed in the Department regardless of essential requirements of the statute and of the postal regulations, and were, as regards the complainant surety, false, forged and fictitious, and therefore null and void; such grounds of defense being available at law ; nor can such suit be maintained on the ground of multiplicity of suits since the question of liability on the bonds may be determined in a single action. Pechstein v. Smith, 14 App. D. C. 27 ; 37 W. Iv. R. 168. In a suit in equity to enjoin the prosecution of certain suits before a justice of the peace and for the adjustment by a court of equity of the matters in dispute, it appeared that the controversy was as to the terms of an oral agreement between the parties — complainants alleging that they were to be discharged from further liability in consideration of their surrender of their stock of goods, while defendants contended that they were to take the goods, sell them for the best price obtainable, and hold complainants for any balance due. Held, that there was no ground shown for a resort to equity, the contentions of the respective parties being fully cognizable in the suits before the justice of the peace. Waggaman V. Keith Co., 33 App. D. C. 166; 32 W. L. R. 87. Where acting under the act of Mar. 3, 1899, the Secretary of War ordered a bridge company to alter its bridge which constituted an ob- struction to navigation, and the bridge company, alleging that the act was unconstitutional and void, sought to enjoin the Secretary from en- forcing the order, held that, conceding the act in question to be uncon- stitutional, complainant had an adequate remedy at law by setting up the Equity. . 371 invalidity of the act in any proceeding brought to enforce the penalty for its failure to obey the order, and there was no ground for relief in equity by injunction. Monongahela Bridge Co. v. Taft, 34 W. L. R. 378. XXIX. Principles and Maxims. Where one of two innocent parties must suffer a loss, the one who is the cause or occasion of the confidence by which the loss has been caused, will be made to bear it. Williams v. Paine, 7 App. D. C. 116 ; 23 W. L. R. 626 ; Carusi v. Savary, 6 App. D. C. 330 ; 23 W. L. R. 374 ; Congrega- tional Church V. Bright, 28 App. D. C. 229 ; 34 W. L. R. 718. Where a grantee under a deed insufficient to pass the legal title, has paid the purchase money and taken possession of the property, equity will treat the deed as passing the equitable title; and the grantor and those claiming under her will be estopped to deny the sale. Williams V. Paine, 7 App. D. C. 116 ; 33 W. L- R. 636. A court (j)f equity will not interpose to afford aid and support to an invalid deed of a feme covert made in disregard of the requirements of a statute relative thereto. Cammack v. Carpenter, 3 App. D. C. 219 ; 32 W. L. R. 302. Courts of equity look at the substance rather than the form of things. Wilson V. Shaw, 25 App. D. C. 510 ; 33 W. L. R. 328. The maxim that a plaintiff seeking the aid of a court of equity will be compelled to do equity, only applies where the relief sought by the plaintiff and the right demanded by the defendant belong to or grow out of the same transaction; and it has no application where the demand of the defendant is based upon a contract separate and distinct from that which forms the subject of the plaintiff's action. Mercantile Trust Co. V. Hensey, 21 App. D. C. 38 ; 31 W. L. R. 96. Defendant company, being surety on a bond given by J. to secure performance of a contract for the construction of 21 houses, became also surety on a bond given by H., the owner, to third persons to secure perform- ance of a contract with them by which he agreed to complete 15 of the houses by a given time; and to indemnify defendant against loss on the latter obligation, H. executed a deed of trust on said 15 houses. J. made default, and defendant thereupon assumed control and completed the 15 houses, which were accepted by said third persons, and liability on the bond and contract with them ceased. Defendant, claiming a balance due on the contract price, sought to enforce the deed of trust as against certain of the houses, and H. thereupon filed suit in equity to enjoin the sale. Held, that the contract between J. and H. and that between H. and such third persons being separate and distinct, the maxim, that he who seeks equity must do equity, was inapplicable ; and that the sale under the deed of trust was properly enjoined. lb. A court of equity will not invalidate a deed of trust without an offer by the debtor to repay the money secured. Sullivan v. Bailey, 21 App. D. C. 100; 31 W. L. R. 111. As to application of maxim that he who seeks equity must do equity. See lb. A court of equity will refuse to apply the maxim, that a person must come into court with clean hands, for the benefit of persons themselves 372 Equity. seeking to evade the law. Pennsylvania R. R. Co. v. Beekman, 30 W. L. R. 715. As to application of maxim that he who seeks the intervention of a court of equity must come in with clean hands. See Walter v. Walter, 15 App. D. C. 333 ; 27 W. L. R. 785. As to application of rule that "equity aids the vigilant." See Pryor V. Mclntire, 7 App. D. C. 417 ; 24 W. L. R. 49. XXX. Res Judicata. A person having a fund in his hands which he concedes to belong to some one or other of claimants who make demand upon him for it, and between whose conflicting claims he can not safely determine, is not justi- fied in litigating the matter with any one or more of such claimants at common law, and upon being defeated there, resorting to a court of equity for a second trial of the same issue by way of a bill of interpleader. The principle of res judicata forbids any such proceeding, and this general rule is not affected by the fact that two of the parties defendant to the interpleader proceedings were not parties to the action at law, the claims of such parties having been set up by the complainant in the interpleader suit as a defense to the action at law. Tralles v. Metropolitan Club, 18 App. D. C. 588 ; 29 W. L. R. 770. The defense of former adjudication may be made by plea. Wagenhurst V. Wineland, 22 App. D. C. 356; 31 W. L. R. 521. XXXI. Pleading. Where for the purpose of coercing a lessee to give up the demised property or to afford opportunity for ousting him from it, so that third persons might lease the same, an arrangement was entered into between the lessor and such third persons whereby the attorney of the latter procured a tax-deed for the property, a court of equity can grant relief to the lessee against all the parties ; and a bill for such relief is not multifarious. Wehb v. King, 21 App. D. C. 141; 31 W. L. R. 79. See PtEAMNG. XXXII. Practice. It is the duty of a court of equity to recognize its want of jurisdiction and give effect to it, even though the question be not raised in the pleading or on the argument. Dewey Hotel Co. v. U. S. Blec. L. Co., 17 App. D. C. 356; 29 W. L. R. 71. An objection of the want of jurisdiction in equity because the remedy at law is adequate and complete, comes too late when the defendant has answered without objection to the jurisdiction, and testimony has been taken, and when any right to relief at law that plaintiff might have had, has meanwhile become barred by lapse of time. Tyler v. Moses, 13 App. D. C. 428; 26 W. L. R. 771. Where a bill in equity to enforce a foreign decree awarding alimony is dismissed for want of jurisdiction, it should be without prejudice to com- plainant's right to proceed at law. Davis v. Davis, 35 W. L. R. 206. Question of jurisdiction, not raised below, will not be considered on appeal. Smith v. Olcott, 19 App. D. C. 61; 29 W. L. R. 766. For the divesting of vested rights, the statements of the bill of com- plaint, as well as the proofs in support of them, must be clear and satis- Equitv. 373 factory and leave no reasonable doubt of the complainant's right. Chester V. Morgan, 11 App. D. C. 435; 25 W. L. R. 767. Where in a suit in equity involving an accounting the testimony was a mass of inconsistency and utterly irreconcilable, the only thing in the case at all clear being that prior to the institution of the suit an ac- counting was had between the parties in which both acquiesced, such ac- counting is conclusive of the respective rights of the parties. Luckett v. Green, 1 App. D. C. 92; 21 W. L. R. 590. A suit to annul a deed on the ground that the grantor was mentally in- capable, held one in which the verdict of a jury on issues properly formu- lated and sent to a court of common law for trial, might well be taken for information and guidance of a court of equity. Moran v. Sullivan, 12 App. D. C. 137; 26 W. L. R. 26. Where, pending a suit to enjoin the infringement of a patent and for an accounting, the patent expires, it is discretionary with the court either to retain the bill and proceed with the cause or to dismiss it and turn the parties over to their action at law ; and the exercise of its discretion in favor of retaining the cause and taking the account will not be reviewed unless shown to have been clearly illegal. Busch v. Jones, 16 App. D. C. 23 ; 28 W. L. R. 535. In a proceeding in equity to have an alleged last will annd testament declared invalid, by stipulation of the parties issues were framed and Sent for trial by jury, it being further stipulated that a decree should be entered in accordance with the finding of the jury, subject to the right of appeal. The jury found the will invalid on the ground of undue influence only, and a decree entered in accordance with such finding was affirmed by the Court of Appeals. On appeal to the Supreme Court of the United States by only one of the defendants — the others declining to join — that court held there was no evidence to support the finding of the jury, and reversed the decree and remanded the cause to the Court of Appeals, with directions to reverse the decree of the trial court and to remand the cause to that court with directions to set aside its decree and for further proceedings in accordance with the opinion of the Supreme Court. Held, that the "further proceedings" contemplated by the opinion of the Supreme Court was a decree dismissing the bill generally, with costs. LePevre v. Beyer, 30 W. L. R. 648. A complainant may not reinstate his suit after he has voluntarily dis- missed it, in the absence of surprise or mistake. Willard v. Wood, 164 U. S. 502. Wherever the subject matter in several causes is the same, consolida- tion may be allowed at any time even though the parties in their defenses differ. Gilbert v. Endowment Assn., 10 App. D. C. 316; 35 W. L. R. 149. The power to consolidate causes must, however, be exercised with great care. 76. Consolidation by consent implies that the several causes shall be dis- continued and a new and distinct suit be created in i^bich shall be liti- gated all questions theretofore presented. lb. XXXIII. Evidence. In the absence of fraud, accident or mistake, the rule is the same in 374 :Equity. equity as at law, that parol evidence of an oral agreement cannot be per- mitted to vary, qualify or contradict, add to or subtract from the abso- lute terms of a written contract. Hutchins v. Langley, 27 App. D. C. 234 ; 34 W. L. R. 486. XXXIV. Limitations and Laches. Equity will treat a right or claim as barred by limitations when not sued upon within the statutory period prescribed for actions on a legal right or claim of the same nature. Willard v. Wood, 1 App. D. C. 44 ; 21 W. L. R. 579. Statutes of limitations, wherever applicable, are binding in equity. Sis V. Boarman, 11 App. D. C. 116 ; 25 W. L. R. 431. Equitable powers will not be exercised to discover whether one has been wronged, when, with full knowledge of the facts, he has allowed the bar of the statute of limitations to arise, and has slept upon his rights until such a situation has arisen as to render it inequitable to afford him relief. Baker v. Cummings, 169 U. S. 189, reversing 4 App. D. C. 230, and 8 App. D. C. 515. A court of equity of concurrent jurisdiction with one of law is bound by the statute of limitations which governs an action at law. lb. In cases of concurrent jurisdiction courts of equity will hold themselves bound by the statute of limitation that would govern an action at law upon the same demand; and where the subject-matter of the demand is one ordinarily cognizable at law, but by reason of special conditions the remedy for its enforcement in the particular case is obtainable solely in equity, the bar of limitation will be applied, either in obedience to the statute or by analogy, in the same way as at law. Wash. Loan & Trust Co. V. Darling, 21 App. D. C. 132 ; 31 W. L. R. 129. While a court of equity may not consider itself bound to apply the rule of the statute in all cases of the kind, there must be something ex- traordinary in the circumstances of a particular case to justify the denial of relief on the ground of laches when by the terms of the statute there would be no bar to a corresponding action at law. lb. The enforcement in equity of mortgages and deeds of trust by way of mortgage is barred after thirty years. Sis v. Boarman, 11 App. D. C. 116; 25 W. L. R. 431. Laches and undue lapse of time constitute a good defense in equity, and one that may be availed of by demurrer. Cammack v. Carpenter, 3 App. D. C. 219 ; 22 W. L. R. 302. In a suit by the personal representative of an intestate to compel his widow to disclose what property came into her hands, either from her husband or any other person, with the gains and profits thereof during their married life of thirty years, and to account for such property in her possession at the death of her husband, held that the allegations of the bill were not only too vague and indefinite, but the great lapse of time involved in the proposed inquiry presented upon the face of the bill objections that might be reached by general demurrer. McCartney V. Fletcher, 10 App. D. C. 572; 25 W. L. R. 311. The defense of laches will not be sustained upon a demurrer when the bill charges fraud, and it appears that complainants have instituted suit Equity. 375 within a reasonable time after discovery of the fraud. McGee v. Welch, 18 App. D. C. 177 ; 29 W. L. R. 475. As to laches barring right to maintain bill to remove cloud on title. See Knox v. Gaddis, 1 App. D. C. 336. A party seeking to rescind a contract or complete sale for fraud must act within a reasonable time; but as to what is a reasonable time is to be determined by the facts of the particular case, and where the delay has not been wilful or exercised for an unfair purpose a liberal extension of ' time may be permitted. Tyler v. Moses, 13 App. D. C. 438; 26 W. L. R. 771. Where a bill in equity to set aside a conveyance alleged to have been fraudulently procured from an imbecile by a person having her in charge nearly 58 years prior to the filing of the bill, alleged that complainants, who were heirs-at-law of said imbecile, had no knowledge of the fraud until within three years prior to instituting the suit, and then only on suspicion, and no actual proof of the fraud until within a year before the suit, it was held that in view of the allegations of the bill the case was not one to be disposed of on demurrer; and a decree dismissing the bill on demurrer thereto for laches of complainants reversed. McGee v. < Welch, 18 App. D. C. 177; 29 W. L. R. 475. A delay of nine years .and four months is not fatal to a suit to annul a foreclosure on the ground of fraud, where the plaintiff is an ignorant colored woman, defrauded by one in whom she placed entire confidence, who assumed to act as her agent and professed that the sale was in her interest, and who obtained title for little more than a nominal sum by the false personation of a fictitious person, when he still controls and prob- ably owns the property, the situation of which has not materially changed, and there has been no rapid rise in value, or the intervention of the rights of any bona fide purchaser. Mclntire v. Pryor, 173 U. S. 38 ; 27 W. L. R. 527. Where in a suit to annul a foreclosure on the ground of fraud, the fraud is clearly proved the court will look with indulgence upon any dis- ability of the plaintiff which excuses his delay in bringing his action to assert his rights. lb. One is not guilty of laches in bringing suit to have a will of his wife declared invalid as purporting to devise real estate purchased with his money, where it appears that the parties had separated ten years before the death of the wife, during which time he had a tenancy by curtesy initiate only, and that after her death he acquired the interests of some of her heirs-at-law and made several unsuccessful attempts to recover the property by proceedings in ejectment. Zeust v. Staff an, 14 App. D. C. 200; 27 W. L. R. 510. A delay of 30 years in seeking to avoid a conveyance to a husband in trust for the- sole use of his wife and for such uses as she might in writ- ing direct, on the ground that the conveyance was induced by represen- tations of the husband as to certain patents the assignment of an interest in which formed the consideration for the conveyance, no assignment being made and the patents being worthless, is laches precluding relief in equity Van Hook v. Prey, 13 App. D. C. 543 ; 27 W. L. R. 39. In a suit to avoid a conveyance to a husband in trust for the sole 376 Equity. use of his wife, brought by the grantor therein, the rule that the doctrine of laches can only be invoked by one in possession against one out of possession is inapplicable, since constructive possession accompanied by the vesting of the title in the husband, and there having been a convey- ance by the husband in trust to secure a debt and a sale thereunder and the purchaser at such sale, being in actual possession of the property. lb. In a suit to establish title to land complainant alleged a purchase, in 1828, by B., under whom they claimed, of certain real estate, and the execution by herself and husband of a deed of trust securing a note for balance of purchase money, which it was alleged was subsequently paid though the deed of trust was not released ; that in 1830 an agreement for a conveyance of said land was made by the husband of B. with one I., under which the latter took possession, the bill alleging the effect of such conveyance was to pass only the husband's estate by the curtesy ; that in 1869 one H., in whom the title to said I. had become vested, fraudulently procured from the surviving trustee in said deed of trust a deed for said property. It was further alleged that the heirs of B., who had become widely scattered, were in ignorance of such deed until within a few years ' before suit brought. Held, on an appeal from a decree dismissing the bill upon demurrer, that the facts alleged being taken as true, complain- ants had a plain and adequate remedy at law in an action of ejectment, but that conceding that complainant's remedy was in equity, it was barred by laches. Peck v. Haley, 21 App. D. C. 224 ; 31 W. L. R. 145. The failure of one having a claim against the estate of a decedent to prosecute a suit against the executor before bis settlement and discharge, held not to affect the right of such claimant to proceed in equity against the estate in the hands of a trustee. Wash. Loan & Trust Co. v. Dar- ling, 21 App. D. C. 132 ; 31 W. L. R. 129. An insurer cannot insist upon the forfeiture of life insurance, after the death of the insured, because of delinquency in making agreed payments which had been condoned in his lifetime. United Security Ins. Co. v. Bond, 16 App. D. C. 579; 28 W. L. R. 456. XXXV. In General. Jurisdiction to entertain suit by maker of note secured by collateral against payee who claims to have sold collateral to pay debt secured, for cancellation and surrender of note and discovery and accounting. Ohio Nat. Bank v. Construction Co., 17 App. D. C. 524 ; 29 W. L. R. 107. A court of equity will not raise up an intent by implication in the married women's act of 1869 to prohibit or put an end to equitable separate estates. Fields v. Givynn, 19 App. D. C. 99; 29 W. L. R. 834. As to equitable separate estates of married women. See Zeust v. Staifan, 14 App. D. C. 200; 27 W. L. R. 501. A court of equity will not interpose the fiction of equitable assignment by subrogation on behalf of a mere volunteer or intermeddler. Parsons V. John Hancock Life Ins. Co., 20 App. D. C. 263 ; 30 W. L. R. 616. As to effect of return of execution before return day on jurisdiction of equity in judgment creditor's suit. See Mehler v. Cornwell, 3 App. D. C. 92 ; 22 W. L. R. 238. As to enforcement in equity by mortgagee of obligation of grantee of Escaph; — Escrow. 377 mortgagor assuming mortgage debt. See Giesy v. Gregory, 15 App. D. C. 49 ; 27 W. L. R. 416. As against an administrator, it is not necessary to resort to a court of equity for either discovery or account in respect of assets of a deceased debtor. The Orphans' Court has ample authority over the subject. Mann v.'MacDonald, 3 App. D. C. 456; 22 W. L. R. 385. A court of equity can interpret the meaning of the by-laws of a cor- poration, but cannot make them, and is not justified in inserting the word "by-laws" in lieu of "constitution" where the use of the latter word makes a provision of the by-laws meaningless. Scanlan v. Snow, 3 App. D. C. 137; 23 W. L. R. 63, As to intervention of court of equity to compel settlement of the affairs of a voluntary association. See Clerk's Investment Co. v. Sydnor, 19 App. D. C. 89 ; 30 W. L. R. 6. As to power of court of equity, on cross-bill, to direct service Of process on solicitor for the complainant in the original bill. See American Grapho- phone Co. v. Smith, 36 App. D. C. 563 ; 34 W. L. R. 112. As to jurisdiction to enjoin proceedings in police court. See Shoe- maker V. Bntwisle, 3 App. D. C. 252; 22 W. L. R. 316. As to setting aside conveyances made to one occupying a fiduciary rela- tion to the grantor. See Holtsman v. Linton, 27 App. D. C. 242; 34 W. R. 302. As to duty of fiduciaries. See lb. As to interference with public officers acting within the scope of their powers. See Downing v. Ross, 1 App. D. C. 351 ; 21 W. L. R. 683. As to weight to be given and favor shown to compromise agreements. See Holtsman v. Linton, 37 App. D. C. 341 ; 34 W. L. R. 303. A decree in equity must stand upon the allegations of the bill ad- mitted or proved, and not upon the case made by the answer. Wash- ington Brewery Co. v. Cosgrove, 34 W. L. R. 133. In the distribution of the assets of an insolvent estate among creditors justice often requires preferences, and the equahty to be sought is gen- erally that between members of a class rather than between different classes. Gilbert v. Endowment Assn., 21 App. D. C. 344; 31 W. L. R. 190. Indispensable parties to proceedings in. Landram v. Jordan, 25 App. App. D. C. 291 ; 33 W. L. R. 343. See also Bill of Review ; Cloud on Title ; Combinations in Restraint OF Trade; Contracts; Corporations; Creditor's Bill; Discovery; Di- vorce; Fiduciaries; Injunction; Interpleader; Laches; Parties; Par- tition; Pleading; Practice and Procedure; Trusts and Trustees. ESCAPE. The escape after trial begun of one accused of crime involving less than capital punishment will not affect the validity of the trial conducted in his absence. Palk v. United States, 15 App. D. C. 446 ; 27 W. L. R. 815. ESCROW. A deed to be held in escrow until the happening of some condition not apparent upon its face must be delivered to a stranger and not to the grantee. Newman v. Baker, 10 App. D. C. 187; 25 W. L. R. 170. 378 ESTATEIS. ESTATES. I. Fee Simple Estates. II. Life Estates. III. Remainders. IV. By the Courtesy. . V. By the Entireties. VI. Joint Tenancies. VII. Tenancies in Common. VIII. Of Married Women. IX. Trust Estates. X. AppHcation of Rule in Shelley's Case. XL In General. I. Fee Sinjple Estates. By a devise to one for life and after her death to her heirs "share and share alike" vests in the first taker the fee; the words "share and share alike" not controlling the legal import of the word "heirs." Sims V. Georgetown College, 1 App. D. C. 72; 21 W. L. R. 595. Where a will provided that an estate should, upon the death of the devisee, "descend to her lawful heirs, and, should she die without legal issue" it should revert to the estate of the devisor, the word "heirs" held to mean "heirs of the body" and that the devisee took a common law estate tail general, which under the operation of the act of Maryland of 1786 was converted into a fee simple estate. Dengel v. Brown, 1 App. D. C. 423; 21 W. L. R. 741. The same words that create an estate in fee simple or an estate in fee tail in legal estates, will, when applied to an equitable estate, create an estate in fee simple or fee tail in that estate. Sims v. Georgetown College, 1 App. D. C. 72 ; 21 W. L. R. 595. II. Life Estates. A simple devise of land, without words of limitation or description of the extent of the interest devised, creates a life estate only. McAleer v. Schneider, 2 App. D. C. 461 ; 22 W. L. R. 193. Express words of limitation, or words equivalent thereto, are essential to create an estate of inheritance ; and in the absence of such words the devisee will take only a life estate, unless other words are added clearly indicating an intention to give an estate of inheritance. Long v. Gloyd, 25 W. L. R. 50. Where an estate is conveyed to one and his heirs, in trust for an- other, and there is no limitation over of the equitable estate to the heirs of the cestui que trust, either expressly or impliedly, the latter takes but a life estate, upon the determination of which the legal estate reverts to the grantor or his heirs. I)cngel v. Brown, 1 App. D. C. 423; 21 W. L. R. 741. Under a will devising real estate to M. for life and after her death to be equally divided among the heirs of her body begotten, share and share alike, and to their heirs and assigns forever, M. takes a life estate and her children the fee. DeVaughn v. Hutchinson, 165 U. S. 566. By a devise of land to a trustee in trust for A., a female, until she shall attain the age of 16, when she shall have, hold and enjoy the property and take the rents and profits, for her life, with remainder in fee to her Estates. 379 lawful issue, there vests in A. a life estate only, and her issue takes the fee simple in remainder. Slater v. Rudderforth, 25 App. D. C. 497 ; 33 W. L. R. 424. If a legatee under a will has only a life estate in the property bequeath- ed, his. estate is, in any event, answerable to the remainderman for the full amount. Montgomery v. Brown, 25 App. D. C. 490; 33 W. L. R. 468. The owner of a tract of land on which he had conducted a private cemetery conveyed the same to trustees for the sole and separate use of his wife for life, she to have the rents, issues, and profits, and at her death it was disposed of to others. The trustees were to sell and convey any or the whole of the land upon her direction, the proceeds in such case to be held so that she should have the income. After his death the widow continued the business in his name, granting permits to bury and receiv- ing the consideration therefor. The remainderman, contending that this was in excess of her rights, brought suit for an injunction and receiver. Held, that the wife had the right to grant such permits, her rights with respect to the property being analogous to that of a life tenant to con- tinue the operation of mines or quarries, even though the corpus of the estate is thereby diminished or even exhausted, and not being liable to impeachment for waste therefor. Hill v. Moore, 33 W. L. R. 549. Effect on life estate of condition against marriage. See Kennedy v. Alexander, 21 App. D. C. 424; 31 W. L. R. 158. An estate for life created by will is not enlarged by a power to sell and convey in fee certain parcels for the support and maintenance of devisee. lb. A simple devise of land in this District, without words of limitation or description of the extent of the interest devised, creates a life estate only; and this rule of law can not be made to yield to the rule of con- struction founded on the disfavor with which partial intestacy is regarded. McCaffrey v. Manogue, 22 App. D. C. 385 ; 31 W. L. R. 454. Where, however, such a devise is coupled with a personal charge upon the devisee — in effect, a condition of the devise — the operation of such a charge is to enlarge the hfe estate that would otherwise pass into a fee simple. lb. A general devise of real estate without words of hmitation or descrip- tion of the extent of the interest devised will not be enlarged into a fee simple by the fact that, in the same clause of his will, the testator, after bequeathing to the devisee — a daughter — practically the whole of his per- sonal estate, provided in a separate sentence of the same clause that she should pay funeral expenses and any legal debts due by him, where the testator died practically free of debt and the surplus of personalty be- queathed to her after payment of debts and funeral expenses was con- siderable;, lb. - ■ III. Remainders. Where a present interest in remainder, though to be enjoyed in future, passes under the will to a certain and definite person, the re- mainder is a vested one. Vogt v. Vogt, 26 App. D. C. 46; 33 W. L. R. 390. A deed conveyed property in trust for the sole and separate use of A. 380 Estates. for life, free from the control, disposal, debts or liabilities of her husband, with right of use and occupation and to receive rents and profits thereof for her sole and separate use, and provided that she should have no power to alienate, transfer, sell or incumber, nor dispose of the same by any mode of alienation or anticipation; upon her death in trust for her surviving issue and their heirs as tenants in common; and on failure of surviving issue, then in trust for the grantor. Subsequently A. joined with her husband and children in a deed of trust to secure a note exe- cuted by them. Held, in a suit to foreclose the deed of trust, that such deed was void so far as A. and her husband were concerned; that the deed of settlement created a vested remainder in the issue and there was nothing to prevent such issue from conveying their interests by such deed of trust; and that the mere uncertainty whether the estate so con- veyed might be divested in whole or in part by the death of one of the remaindermen before the determination of the life estate did not justify a refusal of foreclosure and sale of their interests, notwithstand- ing it might affect the price realized at the sale. Fields v. Gwynn, 19 App. D. C. 99; 29 W. L. R. 834. Where a testator devised and bequeathed his estate, real and personal, to three of his children for life or until marriage, and on the death or marriage of all of them he devised his. estate to another son in trust to sell, and to distribute the proceeds among his children (excepting one son who had received his portion) and their respective descendants, if any of them were dead, in the proportions provided by the law regulating descents, held that that will created a vested remainder, and that one of the remaindermen had the right to dispose of his interest therein by will. Hauptman v. Carpenter, 16 App. D. C. 524; 28 W. L. R. 567. It is of no importance, in determining the nature of the remainder, that the estate is ordered to be sold and the proceeds divided on the termination of the life estate, thereby working an equitable conversion of the estate or interests in remainder. Hauptman v. Carpenter, 16 App. D. C. 524; 28 W. L. R. 567. A testator devised his entire estate to his wife for life with remainder over in fee to his four children. By a codicil he directed that a daughter, C, should have certain of the real estate immediately upon her mother's death and that C.'s share of the residue was to be held by her for life with remainder over to her children. Held, that the children of C. took a vested remainder in the property devised to her, which chould not be divested by any act of hers. Marshall v. Augusta, 5 App. D. C. 183; 23 W. L. R. 40. A remainder over is void where absolute power of disposal is given in express and unequivocal terms, or clearly and unmistakably implied, to the first taker under a will. Montgomery v. Brown, 25 App. D. C. 490; 33 W. L. R. 468. After a contingent remainder becomes vested it cannot be affected or disposed of by any act of the life tenant or residuary devisee. Craig v. Rowland, 10 App. D. C. 402 ; 25 W. L. R. 235. IV. By the Courtesy. By the birth of issue of the marriage capable of inheriting the estate Estates. 381 from the wife, and subsequent seisin of the wife, the estate by the courtesy becomes a vested estate in the husband ; and could not be divested or de- stroyed by a subsequent statute. Zeusi v. Staff an, 16 App. D. C. 141 ; 38 W. L. R. 371. Seisin in fee by the wife, and the birth of issue during marriage capable of inheriting the estate, are sufficient to vest in the husband an estate by the curtesy initiate ; and the seisin and birth of issue are not required to be concurrent. Zeust v. Staff an, 16 App. D. C. 141; 29 W. L. R. 271. The Married Women's Act of 1869 did not abolish the estate by the curtesy consummate, although by it a married woman may destroy the estate by conveyance or will; and such estate is not by that act exempt from liability for the debts of the tenant by the curtesy. Uhler v. Adams, 1 App. D. C. 393 ; 31 W. L. R. 803. Where property was conveyed to a husband in trust for the sole and separate use of the wife and by her direction the husband executed a deed of trust on the property to secure a debt of his own and the property was sold thereunder, Held, in ejectment brought by the heirs of the wife, that upon her death the trust for her benefit became passive, and the statute of uses vested the legal title in the heirs, but that the conditions for curtesy existing the husband was entitled to curtesy and the action could not be maintained. Prey v. Allen, 9 App. D. C. 400; 25 W. L. R. 39. V. By the Entireties. Prior to the adoption of § 1031 of the Code a conveyance of land to husband and wife "to have and to hold the said land unto and to the only use of the parties of the second part, their heirs and assigns, forever," had the effect to create a tenancy by the entireties and not a tenancy in com- mon. Marshall v. Lane, 27 App. D. C. 376 ; 34 W. L. R. 390. The effect of a conveyance to a husband and wife which in the granting clause is recited to be "unto said parties of the second part, their heirs and assigns forever," and in the habendum clause to be "unto said parties of the second part, their heirs and assigns, or the survivor of them, his heirs and assigns, to and for their sole use, benefit and behoof for- ever," is to invest the grantees, husband and wife, with an estate by the entirety, with the right of survivorship, of which right neither could be divested without the joint act of both. Loughran v. Lemmon, 19 App, D. C. 141 ; 30 W. L. R. 25. There is nothing in the Married Women's Act in force in this District that in any way defeats or destroys the common law estate by the entire- ties as that estate subsists between husband and wife by purchase ; and that estate exists as at common law unaffected by statute. lb. A deed purporting to convey real estate to a man and his wife and their assigns forever creates either an estate by the entireties or a joint tenancy, with the incident of survivorship. Alsop v. Fedarwisch, 9 App. D. C. 408; 25 W. L. R. 22. VI. Joint Tenancies. Where a devise is to the surviving children of a testator, without de- claring how they shall take, they take as joint tenants. O'Brien v, Dough- erty, 1 App. D. C. 148 ; 21 W. L. R. 627, 382 Estates. A conveyance to two or more persons without any sufficient indication of intention in the instrument that the grantees are to hold in severalty, is to be construed as a joint tenancy, whatever may have been the inten- tion of the parties. Seitz v. Seits, 11 App. D. C. 358; 25 W. L. R. 738. A recital in a deed conveying to a brother of the grantor and the wife of another brother, their heirs and assigns, an undivided two- thirds interest in real estate — the grantor retaining a one-third interest — to the effect that in the purchase of the property he had acted as well for his brothers as for himself, the three of them jointly paying the pur- chase money, will not suffice to convert the estate conveyed by the deed into a tenancy in common, and not a joint tenancy. lb. The word sole, occurring in the habendum clause of a deed, wherein it is provided that the grantees shall have and hold the estate "to their sole use," etc., cannot be treated as the equivalent of the word several, so as to convert the estate into a tenancy in cqmmon. lb. That in such case the conveyance itself operates as a severance in favor of the grantor, of the joint interest declared by the deed to have existed in him in trust, does not warrant a construction of the instru- ment as creating a tenancy in common. lb. VII. Tenancies in Common. A conveyance of real estate to a husband and wife to hold as tenants in common creates in them a tenancy in common and not by the entirety. Carroll v. Reidy, 5 App. D. C. 59 ; 23 W. L. R. 820. Where the terms of a deed in fee to a man and his wife are free from ambiguity, clear and unequivocal proof is required to establish an inten- tion to take as tenants in common. Alsop v. Fedarwisch, 9 App. D. C. 408; 25 W. L. R. 22. VIII. Of Married Women. The creation of equitable separate estates, with their recognized limita- tions, is not expressly prohibited or put an end to by the married women's act of 1869, and courts of equity will not raise up an intent to do so by implication. Fields r. Gwynn, 19 App. D. C. 99; 29 W. L. R. 834. As to what constitutes separate estate of married women. See Zeust v. Staffan, 14 App. D. C. 200 ; 27 W. L. R. 501. As to power of married women over their separate estates. See lb. IX. Trust Estates. A trust estate is not to continue beyond the period' required for the purposes of the trust. Vogt v. Vogt, 26 App, D. C. 46 ; 33 W. L. R. 390. The estate of trustees under a will will be upheld to the extent neces- sary to enable them to execute a valid trust, although other independent trusts may be invalid. Landram v. Jordan, 25 App. D. C. 292 ; 33 W. L. R. 243. X. Application of Rule in Shelley's Case. The rule in Shelley's case will not apply where one of the estates at- tempted to be created is equitable and the other legal. Vogt v. Vogt, 26 App. D. C. 46 ; 33 W. L. R. 390 ; Slater v. Rudderforth, 25 App. D. C. 497; 33 W. L. R. 424. Estates. 383 While the rule in Shelley's Case is equally applicable, to the limitations of equitable as to legal estates, the estate of the ancestor and the limita- tion of the heirs must be of the same quality, both legal or both equitable. Sims V. Georgetown College, 1 App. D. C. 72 ; 21 W. L. R. 595. The only modification or qualification of the rule in Shelley's case, in its application to equitable estates, is where a court of equity is called upon to direct the execution of an executory trust. In such case the court will apply the rule or not, as will best subserve the purposes and intent of the author of the trust. lb. A devise to a married woman to her separate use does not alter the nature of the estate devised ; nor does it interfere with the application of the rule in Shelley's Case. lb. A testator, by his will, which took effect in 1879, gave certain real estate, after the death of his wife, to a daughter during her lifetime, "and to the heirs of her body share and share alike or their assigns in fee simple forever." Held, that the words "heirs of her body" were words of limita- tion, the legal import of which was not controlled by the added words "share and share alike ;" that the rule in Shelley's case applied, and the daughter took an estate in fee simple. Sinclair v. Sinclair, 36 W. L. R. 19. Where a testator directed that at a certain time after his death the residue of his real estate should be sold and the proceeds divided among his heirs, share and share alike, and paid over to them at once, except that the share of one son should be paid to trustees to be invested by them, the income to be paid to the son, the principal to be paid to his heirs after his death, held that the trust being Hmited to the life of the son, the remainder to his heirs is a legal estate, and therefore the rule in Shelley's Case, even if applicable to personal estate, did not apply, and the son took only an equitable estate for life in the income, the legal estate in re- mainder being vested in his heirs. Vogt v. Vogt, 26 App. D. C. 46 ; 33 W. L. R. 390. The tendency of the courts is to deny the application of the rule in Shelley's Case where the intent of the testator has been made to appear so plainly to the contrary that no one could misunderstand it. lb. The direction by a will for a sale of real estate having effected an equitable conversion, and the plain intention of the testator being that the son should have only a life estate in the income, the word "heirs'' in the bequest in remainder should be construed as meaning children or next of kin, or those who would take under the statute of distributions, and the rule in Shelley's Case -is not applicable. lb. A testator devised certain real estate to his wife for life, the taxes, in- surance and repairs to be paid by her. Upon her death, the estate to vest in his son G. for life, subject to the same conditions as to taxes, etc., and upon the death of the son the estate, or the proceeds thereof, to vest in the lawful descendants of the son absolutely and in fee simple. The will directed that the premises be kept fully insured, and in case of de- struction by fire that the insurance money be used in repairing or rebuild- ing them, "so that the right which will subsequently vest in fee simple in the lawful descendants of my said son will be fully protected." Held, that the rule in Shelly's Case did not apply; that the son took only a life es- tate subject to an estate for life in his mother; and that such life estate 384 Estates. was all that passed to the purchaser at an execution sale upon a judgment against the son. 'MacCarthy v. Tichenor, 29 W. L. R. 443. A testator, after devising certain real estate to his sister for life, limited the remainder to her three daughters for life, and after their death to their heirs begotten of their bodies, and to their heirs and assigns for- ever. Provision was made for the subdivision and the distribution of the estate among the daughters on the death of the life tenant. One of the daughters died in the lifetime of testator. Held, that the rule in Shel- ley's Case did not apply. The devise to the daughter was for life only; and on her death in the lifetime of testator her children took an estate in fee simple, subject to the life estate of testator's sister. DeVaughn v. DeVaughii, 3 App. D. C. 55 ; 23 W. L. R. 324. Where an estate is expressly devised to a person for life, with re- mainder to the "heirs of his body", and there are words of explanation annexed to such word "heirs" apparently intended to qualify its meaning and make it descriptive of the person, the word "heirs" will operate as a word of purchase ; and so of the word "issue" lb. Where language is employed in a will as to personal property, which, under the rule in Shelley's case, would give a fee simple in real property, the first taker of such personalty takes the whole interest. Engle v. Mades, 25 W. L. R. 229 ; Pairo v. Pairo, 24 W. L. R. 831. XI. In General. Conditional limitations or restrictions having the literal effect to cut down and defeat a preexisting estate for life or in fee .by making it terminable upon the event of marriage, should be regarded merely as in terrorem and not allowed to operate a forfeiture of the estate. Kennedy V. Alexander, 21 App. D. C. 424; 31 W. L. R. 158. An inchoate right of dower cannot be broader than the estate upon which it depends. Sis v. Boarman, n App. D. C. 116; 25 W. L. R. 431. An estate devised by will cannot be cut down or taken away by raising a doubt from other clauses of the will. Montgomery v. Brown, 35 App. D. C. 490; 33 W. L. R. 468. A devise to an heir of an estate precisely the same in quality and quantity as he would have taken if there had been no will, is void, and the heir takes by descent and not by purchase. Landic v. Simms, 1 App. D. C. 507 ; 23 W. L. R. 17. A child en ventre sa mere is deemed to be in esse for the purpose of taking any estate or interest whatever. Craig v. Rowland, 10 App. D. C. 402; 25 W. L. R. 235. As to estate taken by wife by conveyance from her husband through a third party. See Shea v. McMahon, 16 App. D. C. 65; 38 W. L. R. 203. As to effect of a deed of trust by husband and wife conveying prop- erty vested in them hy the entireties, to secure debt of husband and pro- viding for release or conveyance to husband. Loughran v. Lemmon, 19 App D. C. 141; 30 W. L. R. 35. Real estate directed by will to be converted into money is to be re- garded as if it were money at the time of the testator's death. Vogt v. Vogt, 26 App. D. C. 46 ; 33 W. L. R. 390. Equity will reform a deed of real estate to husband and wife which Estates of Decedents. 385 under the law vested in them an estate as tenants by the entireties, where it is shown that it was their intention to hold the estates as tenants in common and they supposed that that was the effect of the deed. Marshall V. Lane, 27 App. D. C. 376 ; 34 W. L. R. 390. Estate of mortgagor in possession. Wilkes v. Wilkes, 18 App. D. C. 90 ; 39 W. L. R. 361. See Married Women; Wills; See also Specific Captions. ESTATES OF DECEDENTS. I. Assets. II. Debts and Liabilities. III. Descent and Distribution. IV. Charges of Administration. V. Law Governing. VI. In General. I. Assets. A member of two benefit associations, having the right to designate the person or persons to whom the death benefits should be paid, directed, in each case, that the same be paid to "my son C, the executor named in my will." Held, that these directions amounted to a designation of his estate as the beneficiary. Estate of Tucker, 34 W. L. R. 261. An obligation of a non-resident created by a deed recorded and intend- ed to operate in a foreign jurisdiction is not a local asset of the estate of a decedent for which an administrator acting under ancilliary letters granted in the District can maintain an action. Willard v. Wood, 1 App. D. C, 44; 31 W. L. R. 579. Rents and profits of real estate conveyed and caused to be conveyed by a husband to his wife by deeds absolute in terms, held to form no part of the personal estate of the husband and his personal representa- tive not entitled to claim them or compel an accounting of them by the widow. McCartney v. Fletcher, 10 App. D. C. 572 ; 35 W. L. R. 311. As to when money derived from the sale of real estate of a decedent treated as personalty. See Holcomb v. Wright, 5 App. D. C. 76 ; 33 W. L. R. 34. A decree in favor of a receiver for compensation and for an indebt- edness for which he had assumed a personal liability, the receivership having terminated by sale of the property and installation of the pur- chaser, will pass on his death to his personal representative, who may enforce it. Cake v. Mohun, 164 U. S. 311; 35 W. L. R. 9. As against an administrator, it is not necessary to resort to a court of equity for either discovery or account in respect of assets of a deceased debtor. Under the Testamentary Act of 1798 the Orphans' Court has ample authority over the subject. Mann v. MacDonald, 3 App. D. C. 456; 22 W. L. R. 385. Except where they have an intrinsic value family portraits should be distributed among .the several heirs in the proportions applicable to the division of other chattels, instead of applying the insignificant sum real- ized from their sale to payment of the ancestor's debts. Brown v. Ester- hazy, 25 W. L. R. 478. The statute of limitations does not begin to run against .a claim in 386 Estates op Decedents. behalf of a decedent's estate until after letters of administration are granted. Tucker v. Neheker, 2 App. D. C. 326 ; 22 W. L. R. 143. As to interest of executor in undisposed of surplus or residue of per- sonal estate. See Sinnott v. Kenaday, 14 App. D. C. 1; 27 W. L. R. 82. II. Debts and Liabilities. The term debts in a will does not, in the absence of explanatory words, include liabilities arising after the death of testator, or charges imposed by law. Nash v. Ober, 2 App. D. C. 304; 22 W. L. R. 92. The right of creditors to reach real estate of a decedent is statutory; in this jurisdiction under the act of Maryland. of 1785, ch. 72, § 5, con- ferring power upon a court of equity to decree sale. To authorize such decree the indebtedness must have existed, though not necessarily pay- able, in the lifetime of the deceased. Hansel v. Chapman, 2 App. D. C. 361; 22 W. L. R. 140. As to liability of the estate of a deceased husband for the exonera- tion of a wife's estate mortgaged for the benefit of the husband. Shea v. McMahon, 16 App. D. C. 65; 28 W. L. R. 203. Where a testator gives several legacies without creating an express trust to pay them, and then makes a general residuary disposition of his entire estate, blending the realty and personalty in one fund, the whole estate will be charged with the payment of the legacies. Readman v. Ferguson, 13 App. D. C. 60; 26 W. L. R. 389. A creditor may, in equity, follow the assets of an intestate debtor into the hands of his distributees. Glenn v. Sothoron, 4 App. D. C. 125; 22 W. L. R. 649. As to right of assignee of insolvent corporation to maintain bill in equity against distributees of estate of decedent stockholder to recover unpaid subscriptions to stock made by him. See lb. The personal estate of a decedent is the primary fund for the payment of the debts, and the debts must be paid therefrom even though secured by mortgage upon the real estate. In re Estate of Harris, 33 W. L. R- 290. Where, however, the debt secured by the mortgage is not the per- sonal debt of the decedent, the rule does not apply ; and the debt so se- cured is a charge upon the real estate, which becomes the primary fund for its payment. lb. Where the decedent purchased real estate subject to a mortgage, and nothing more appears, the personal estate is exonerated from the pay- ment of the mortgage debt to the extent of the real estate security; but if the decedent made the debt his own the personal estate - becomes primarily liable for its payment. lb. A. purchased real estate, giving notes secured by mortgage of the property for part of the purchase money, which notes were indorsed by B. Subsequently A conveyed the property to B subject to the mortgage, and B died without the mortgage having been discharged. In the set- tlement of her estate, held that B did not make the debt her own so as to make the personal estate the primary fund for its payment, but that the mortgage debt was payable out of the proceeds of the mortgage property. lb. Estates of Decedents. 387 A claim of an executrix, who is also a creditor of the estate, is not such a claim as can be exhibited against a co-executrix, and therefore not one within the Maryland act of 1798, which would be barred if suit not brought thereon within the time limited. Patten v. Glover, 1 App. D. C. 466; 21 W. h. R. 794. Where, under the provisions of a will, real estate is converted into personalty for distribution among heirs, a deed by one of them, made after the death of testatrix, to a stranger, purporting to convey his in- terest in the estate, operates as a mere assignment jai his interest as a legatee, and where his legacy has adeemed by reason of advances in excess thereof, made during the lifetime of testatrix, the assignee takes nothing. Miller v. Payne, 28 App. D. C. 396; 34 W. L. R. 798. As to jurisdiction of court of equity to subject real estate to payment of debts. See Richardson v. Penicks, 1 App. D. C. 261; 21 W. L. R. 707. III. Descent and Distribution. As to descent and distribution of estate of intestate leaving no nearer relatives than descendants of maternal grandfather. See McManus v. Lynch, 28 App. D. C. 381; 35 W. L. R. 18. As to course of descent and distribution where persons perish in a common disaster. See Young Woman's Christian Home v. French, 187 U. S. 401; 31 W. L. R. 30. In the case of a gift to the children of several persons described as standing in a certain relation to the testator, the objects of the gift take per capita and not per stirpes. Mclntire v. Mclntire, 192 U. S. 116 ; 32 W. L. R. 54, Under a provision in a will that the residue is "to be equally divided between my brothers Edwin and Charles' children," the distribution is to be made per capita. lb. Where, pending a will contest, a partial distribution of the estate to certain legatees named in the will and also to a person entitled to an interest in the residue only was made, the sums paid the legatees were properly charged against the legacies to them instead of their share of the residue. lb. As to jurisdiction of Orphans' Court to make and enforce distribution of undisposed-of residue of personal estate of testator. See Sinnott v. Kenaday, 14 App. D. C. 1; 27 W. L. R. 82; 5'. C. 179 U. S. 606. As to jurisdiction of Orphans' Court to require an executor to pay to next of kin residue of estate after payment of debts and legacies. See Sinnott V. Kenaday, 12 App. D. C. 115-; 26 W. L. R. 121. As to power of Orphans' Court to order an accounting by an executor and partial distribution of estate, pending writ of error to review judg- ment establishing will. See McLane v. Cropper, 5 App. D. C. 276; 23 W. L. R. 115. As to disposition of petition for distribution filed before, the time fixed by law for distribution. See Sinnott v. Kenaday, 12 App. D. C. 115 ; 26 W. L. R. 121. Testator, by his will, authorized his executors to sell certain property and reinvest the proceeds, and directed that the net income should be 388 Estates of Decedents. distributed among his widow and two children in the proportions of one-third to each, until the death or remarriage of the widow, when the estate should be distributed between the two children. Held that the court below properly refused to decree a distribution of the principal estate before the period of distribution fixed by the will arrived. Mar- Held V. McMurdy, 25 App. D. C. 342; 33 W. L. R. 450. Where a testator directed that certain real estate be sold and the pro- ceeds applied to pay bequests made by the will, but such bequests were paid or retained for by the executor out of the personal estate, it was held the reason for such sale ceased to exist, and the estate descended to the heir at law as undisposed of estate unembarrassed by such charges. Long V. Gloyd, 25 W. L. R. 50.' An order directing a partial distribution should be certain and precise in its terms ; and an order leaving to the executors the whole matter of ascertaining the income, as well as the amount to be retained for fu- ture contingencies, with no precise rule for their guidance, is insuf- ficient. McLane v. Cropper, 5 App. D. C. 276; 23 W. L. R. 115. Where an estate has been wholly and properly distributed, plene ad- ministravit is a proper plea to a suit against the administratrix brought by the assignee of an insolvent corporation to recover unpaid subscrip- tions to stock. Glenn v. Sothoron, 4 App. D. C. 125 ; 22 W. L. R. 649. By his will decedent gave his wife $100, directed the expenditure of not exceeding $200 in erecting a monument and rail over his grave, and made other disposition of the residue. The estate, after payment of debts and funeral expenses, amounted to about $700, part of which were benefits of two associations which decedent had designated should be paid to ''my son C, the executor named in my will." The widow re- nounced the provision made for her by the will, electing to take in lieu thereof a third of the personal estate. Held, that subject to an allowance of $50 for the expense of marking the grave, which as to the widow was all that should be deducted for that purpose, she was entitled to one- third of the personal estate, including the money received from the bene- fit associations. Estate of Tucker, 34 W. L. R. 261. IV. Charges of Administration. The Orphan's Court is without power to allow counsel fees incurred in defending will where such allowance will affect the claims of creditors of the estate. Hamilton v. Shillington, 19 App. D. C. 268; 30 W. L. R- 39. It is the right of creditors of an estate to at any time within the period of administration, question the correctness of an allowance to counsel as one of the items of the account to be rendered by the admin- istrators, and to appeal from the order overruHng their objection to such allowance. lb. Where, on the petition of legatees who were also next of kin, an order was passed directing counsel fees to be paid for defending the will to be charged against the interest of petitioners in the first instance, without prejudice to an application to have such fees finally charged against the estate, and the will was sustained, such fees were, in the account of the Estates of Decedents. 389 administrators c. t. a., properly charged against the estate. Mclntire v. Mdntire, 192 U. S. 116; 32 W. L. R. 54. Counsel fees paid upon the petition of certain legatees, stating that said counsel "had been managing their interests," the order authorizing such payment not reserving the right of petitioners to apply to have it charged against the estate, held properly charged against the legatees in distribution of estate. Ih. Dividends accruing after the death of a testator on stock specifically bequeathed, are not subject to the cost of administration until residuary bequests have been exhausted. Nash v. Ober, 2 App. D. C. 304 ; 22 W. L. R. 92. V. Law Governing. The provision of the laws of a State, making an allowance to the widow and minor children of a decedent out of his estate, cannot be regarded as an indebtedness enforceable against real estate of the deceased situ- ated in the District, there being no similar law here. Hansel v. Chap- man, 2 App. D. C. 361 ; 22 W. L. R. 140. The question of sale and conversion of real estate into personalty de- pends upon the law of the jurisdiction in which it is situated. Holcomb V. Wright, 5 App. D. C. 76; 23 W. L. R. 24. VI. In General. Partial intestacy is not favored. Home v. French, 187 U. S. 401 ; 31 W. L. R. 30 ; Young v. N orris Peters Co., 27 App. D. C. 140 ; 34 W. h- R. 240. A devise of real estate to be sold for distribution of proceeds, gives the executor named in the will, by necessary implication, power to sell and convey. Rathhone v. Hamilton, 4 App. D. C. 475; 22 W. L. R. 766. The right of a husband to sue for and recover choses in action of his deceased wife, without letters of administration, given by the act of Maryland of 1798, is a special statutory power and does not extend by construction to any case other than that expressly declared by the statute. Ferguson v. Wash. & G. R. Co., 6 App. D. C. 525 ; 23 W. L. R. 407. As to necessity of administration of estate of married woman. See McCarthy v. McCarthy, 20 App. D. C. 195; 30 W. L. R. 419. As to right of administrator to maintain action of tort for retention of money belonging to the estate of his decedent. See Tucker v. Neheker, 2 App. D. C. 326; 22 W. L. R. 143. The official action of municipal officers in taking charge of the estate of a decedent to await claim by its lawful owner, is not a tortious inter- meddling with the estate ; but if they convert it to the use of the munici- pality they become liable in tort to the person entitled; and their act binds the municipality. Ih. In a suit to recover money belonging to an estate, the propriety of the granting of plaintiff's letters of administration cannot be questioned. That is for the court granting the letters to determine. Ih. As to the admissibility of evidence in an action of replevin by the collector of a decedent's estate to determine the right of possession of certain property claimed as a donatio causa mortis. See Dawson v. Waggaman, 23 App. D. C. 428; 32 W. L. R. 226. 39d Estates of Married Women — Estoppel. As to competency as witness of party to suit affecting. See Nieman v. Mitchell, 2 App. D. C. 195 ; 22 W. L. R. 59. Collector; power of probate court to remove. Guthrie v. Welch, 24 App. D, C. 562; 33 W. L. R. 163. As to assessment for taxation. See Kann v. King, 25 App. D. C. 182 ; 33 W. L. R. 147. See also Administration ; Courts ; Descent and Distribution ; Ex- ecutors AND Administrators; Liens; Wills. ESTATES OF MARRIED WOMEN. See Husband and Wife; Mar- ried Women. ESTOPPEL. I. By Deed. II. By Matter of Record. III. In Pais. IV. Generally. I. By Deed. A grantor and all in privity with him are estopped from denying that which is set forth in his deed by way of recital or agreement. Morris V. Wheat, 8 App. D. C. 379; 24 W. L. R. 264. As to estoppel of grantor to deny delivery of deed. See Carusi v. Savary, 6 App. D. C. 330; 23 W. L. R. 374. Where a grantee under a deed insufificient to pass the legal title, has paid the purchase money and taken possession of the property, equity will treat the deed as passing the equitable title ; and the grantor and those claiming under her will be estopped to deny the sale. Williams v. Paine, 7 App. D. C. 116; 23 W. L. R. 626. During the existence of the tenancy, neither a lessee nor his assigns can dispute the title of his lessor or heirs, either by setting up title in themselves or in a third person. Morris v. Wheat, 11 App. D. C. 201; 25 W. L. R. 494. As to whether a deed of trust on property of the wife held in trust by the husband for her benefit, executed by the husband by her direction, will estop him from asserting his estate by the curtesy. See Frey v. Allen, 9 App. D. C. 400; 25 W. L. R. 39. A defendant in ejectment claiming under a tax deed which recites a sale of the property assessed for taxes in the name of the plaintiff is estopped to deny that plaintiff was the owner at the time of the sale. Anderson v. Reid, 10 App. D. C. 426 ; 25 W. L. R. 174. As to estoppel of parties to deny lease. See American Sec. & Trust Co. V. Walker, 23 App. D. C. 583; 32 W. L. R. 348. As to effect of wife uniting with husband in execution of deed. See Pollanshee v. Follansbee, 1 App. D. C. 326; 21 W. L. R. 763. II. By Matter of Record. Admissions or recitals of facts made in pleadings and verbal ad- missions of counsel made at the trial of another and different case will not operate by way of estoppel. Keyser v. Pickrell, 4 App. D. C. 198; 22 W. L. R. 639. As to effect of judgment on a part of a single cause of action as an EsTOPPlil,. 391 estoppel on the parties to a suit on an assigned part of such cause of action. See Sincell v. Davis, 24 App. D. C. 218; 32 W. L. R. 746. Where in an action to recover permanent damages caused to land by the construction of a sewer thereon, the court, at the instance of de- fendant, erroneously limited the recovery to temporary damages, such ruling is not binding upon defendant in a subsequent action for the same trespass as a continuing nuisance. Dis. of Col. v. Hutchinson, 1 App. D. C. 403; 21 W. L. R. 780. As to whether a defendant, improperly removing a case from a justice of the peace into the Supreme Court of the District, by certiorari, can be permitted to question the jurisdiction of the latter court. See Warner v. Jenks, 12 App. D. C. 104; 26 W. L. R. 131. An answer in Equity, even when sworn to by the party making it as true to the best of his knowledge and belief, cannot operate as an estoppel. Posey V. Hanson, 10 App. D. C. 496 ; 25 W. L. R. 299. One filing a bill to subject the interest of his debtors as mortgagors, to the satisfaction of his judgment, who describes the mortgaged prop- erty as it is described in the mortgage, is not estopped to claim that such debtors have the legal title to a strip of property excluded from the de- scription of the property by mutual mistake. Manogue v. Bryant, 15 App. D. C. 245 ; 27 W. Iv. R. 478. Where in ejectment it is shown that whatever title defendant had or claimed was under one D. who was the common source for both plain- tiffs and defendant, defendant is estopped to deny that D. had a valid title. Morris v. Wheat, 11 App. D. C. 201; 25 W. L. R. 494. A statement by a wife in her petition for letters testamentary on the estate of her husband, that a portion of the estate devised to her con- sisted of certain realty, will not, in the absence of proof that the state- ment mislead or injured an interested party, estop her executor from afterwards, when the will of the husband had been discovered to be invalid as to such real estate, claiming against the heirs of the husband that the real estate had been charged with a resulting trust in favor of the wife. Cooksey v. Bryan, 2 App. D. C. 557; 23 W. L. R. 252. An executor who, in his petition for letters testamentary, stated the personal estate of his decedent to be of the value of $7,500, cannot, on being called upon, after fifteen months from the probate of the will, to file an inventory and settle his accounts, be heard to say that such valuation was fictitious. Humphrey v. Conger, 7 App. D. C. 23; 23 W. L. R. 425. That a judgment creditor, in a bill to reach the equitable interest of the debtor in property conveyed by deed of trust, describes the prop- erty as it is described in that deed, will not estop him from thereafter claiming that the judgment debtor holds the legal title to land which by mutual mistake was not included in the description. Manogue v. Bryant, 15 App. D. C. 245; 27 W. L. R. 478. Where a life tenant improperly joined in a partition of property by deed in fee, in one-fourth part of which such life tenant's children had a vested remainder in fee, the fact that such children, after the death of the life tenant, joined in a suit for partition of the part assigned to such life tenant and one of her deceased brothers in the attempted partition 392 EsTOPPHjt. by deed, did not estop them from afterwards maintaining ejectment to recover their interest as vested remaindermen in fee, no reference being made in their suit to such partition by deed, or to any claim of title from or through any partitioner thereunder. Marshall v. Augusta, 5 App. D. C. 183; 23 W. L. R. 40. As to effect of action of caveator in a will contest instituted in this District in obtaining letters testamentary in another jurisdiction, to estop caveatee to deny that deceased was a resident of such other jurisdiction. Overby v. Gordon, 13 App. D. C. 393; 36 W. L. R. 722. As to scope of estoppel of a former adjudication. See Cummings v. Baker, 16 App. D. C. 1; 28 W. L. R. 131. To deny validity of lunacy proceedings. See Logue v. Penning, 29 App. D. C. 519; 35 W. L. R. 382. III. In Pais. A real estate agent who sells property for more than the price fixed by the owner, to one for whom he is also agent, is estopped to plead, in an action by the owner for the excess, that the sale was not bona Ude, and that he defrauded the purchaser. Lewis v. Denison, 2 App. D. C. 387; 22 W. L. R. 191. An attorney in fact acquiescing in an unlawful revocation of his powers is estopped to deny the legality of the revocation. MacKie v. Howland, 3 App. D. C. 461; 22 W. L. R. 425. One who, after the rejection of his bid for contract work on a pub- hce improvement, submits another and lower bid which is accepted, and voluntarily enters into the performance of his contract under such bid, is estopped to assert that the first bid should have been accepted. Inter- national Co. V. Lamont, 3 App. D. C. 533; 22 W. L. R. 173. A party is estopped to repudiate a contract when the other parties to it have been induced by his action and conduct to expend money in carrying it out. Sanche v. BlectroUbration Co., i App. D. C. 453; 22 W. L. R. 769. Where the question is whether a contract had lapsed, and one of the parties or privies states that he considers the contract to be still in force, he is thereby estopped from claiming afterwards that the contract had expired. MacKie v. Hozvland, 3 App. D. C. 461; 22 W. L. R. 425. Where a contractor is himself the cause of delay in commencing work under the contract, neither he nor his sureties can be heard to urge such delay as ground for annulling the contract, or for exoneration from all liability under it. United States v. Maloney, 4 App. D. C. 505; 22 W. L. R. 785. As to estoppel of surety on bond of trustee appointed to make sale, to deny jurisdiction of the court to decree such sale. See Morse v. Hine, 29 App. D. C. 433 ; 35 W. L. R. 334. A surety who executes a bond and returns it to the principal or his agent for delivery to the obligee, is estopped to set up any condition, not known to the obligee, upon which his signature was obtained. United States V. Boyd, 8 App. D. C. 440; 34 W. L. R. 298. An assignment by tenants in common to a third party, of their rights under a contract for the purchase of an option on land does not estop Estoppel. 393 either one or both of them from thereafter withdrawing from the con- tract under the right reserved to them therein. Clark v. Harmer, 9 App. D. C. 1 ; 34 W. L. R. 345. In a proceeding in equity by the successor in interest of the original grantee to quiet his title by adverse possession, and for a sale of the land, the heirs at law of the grantor being made defendants, a compro- mise agreement was entered into by all the parties, including appellants, for a sale of the land and distribution . of the proceeds, in certain pro- portions, to complainant and to the heirs at law of said grantor. Held, that appellants could only claim an interest in the fund as heirs at law of said grantor, and were estopped by the agreement from claiming a larger portion of the fund as devisees under the will of one of the two heirs at law of the original grantor. Dangerfield v. Williams, 26 App. D. C. 508 ; 34 W. L. R. 50. Where in a suit to set aside a deed of trust as fraudulent, plaintiff called as witnesses the defendants, he is estopped from assailing their statements for lack of either the competency or- credibility of such wit- nesses. Merrillat v. Hooker, 36 W. L. R. 40. One who agrees to the probate of a will and takes a benefit thereunder cannot thereafter be heard to dispute or deny the validity of the will. Utermehle v. Norment, 22 App. D. C. 31; 31 W. L. R. 323. One who assents to all the steps in the administration of an estate and accepts a benefit under the will, cannot thereafter, in an effort to break the will, be heard to say that he was ignorant of the law and his rights thereunder. Estate of Utermehle, 30 W. L. R. 251. The principle that one will not be permitted to claim under a will and at the same time defeat its provisions, held not to apply to a case where a devisee or legatee is only asking the court to obey a statute which de- clares void a bequest pronounced illegal by the law. Long v. Gloyd, 25 W. L. R. 50. Legatees of stock who on delivery of the certificates therefor by the executor after his accounts have been passed, give him receipts, are not estopped thereby to question the application by the executor of the dividends on such stock while in his hands. Nash v. Ober, 2 App. D. C. 304; 22 W. L. R. 92. Legatees assenting to sale of bonds bequeathed and receiving pro- ceeds of the sale, cannot thereafter object to the sale. Sinnott v. Kenaday, 14 App. D. C. 1 ; 27 W. L. R. 82. To enable a party alleging equitable estoppel to avail himself of it, he must show that, relying upon the truth of the representations which work the estoppel, he changed his position to his disadvantage so that it would be a fraud upon him to permit the party estopped to show that his representations were not true. A^at. Safe Deposit Co. v. Gray, 12 App. D. C. 276 ; 26 W. L. R. 179. Estoppels in pais are not applicable to infants. So, where a void sale and conveyance of an infant's real estate is made by a third party as executor or trustee, the fact that some portion of the proceeds of sale were applied for the support of the infant owner will not constitute such an adoption or ratification of the sale by equitable construction as will operate by way of estoppel against the infant owner, and bar recovery 394 Estopph;!. in an action of ejectment brought by him after reaching majority. Ham- ilton V. Rathbone, 9 App. D. C. 48; 24 W. L. R. 390. For an equitable estoppel to be effective as a bar to recovery in ejectment, it must be co-extensive with the original interest and title of the plaintiff. The grounds of estoppel must apply to and constitute a full and complete answer to the plaintiff's right to recover possession of the entire interest sued for. lb. While an equitable estoppel may be set up to preclude parties from as- serting their rights to property illegally disposed of while they are under age, it is only in very peculiar cases and under very strong cir- cumstances and where the proof is clear and unmistakable, that such defenses can be maintained, especially in an action at law to enforce a clear legal right. lb. That the owner of real property which had been illegally sold during her infancy, received, after coming of age, a pair of shoes from the party making the sale, is too insignificant to be made the foundation of an equitable estoppel. lb. Where owner of land agrees with adjoining owner to dedicate a por- tion of it for public use and latter records plat showing such dedication and municipal authorities enter upon part so dedicated and grade it, the first owner is estopped to thereafter disclaim the dedication and resume exclusive adverse possession. Oettinger v. Dis. of Col., 18 App. D. C. 375. As to estoppel of public to question title to lots made in part out of alleys closed by a subdivision, where the streets and alleys provided in such subdivision were adopted by the District authorities. See Brooks V. Brooks, 28 W. L. R. 335. An owner of land who builds a shed over a portion of what appears in the plat as an alley, as an inducement to his grantee to purchase, is estopped from insisting upon the removal of the shed, and his grantee of another portion of the property, having J)urcliased with knowledge of the existing conditions, is Ukewise estopped. Watson v. Carver, 27 App. D. C. 555 ; 34 W. L. R. 483. Where an owner of land along a public road requests the municipal authorities to widen it, and writes a letter addressed to such authorities authorizing them to proceed with the work and promising to execute a deed of the land required, held, that the owner was estopped from claim- ing or recovering possession of the land and that such estoppel was avail- able as a defense at law as well as in equity. Lansburgh v. Dis. of Col., 8 App. D. C. 10; 24 W. L. R. 120. As to effect of acceptance of award in condemnation proceedings to estop one from appealing from decree confirming the award. See Wins- low z: Balto. & Ohio R. R. Co., 28 App. D. C. 126; 34 W. L. R. 501. Where a party indorses a note before its ■ delivery to a holder for value, and at the time of his indorsement the name of another person appears on the note as first indorser, and the holder takes the note upon the faith of the genuineness of both indorsements, the second indorser is estopped to deny the genuineness of the signature of the first indorser as against the bona fide holder for value. Bowie v. Hume, 13 App. D. C. 286; 26 W. L. R. 690. Estoppel. 39^ One who induces another to accept a note by representing that it was secured by a first mortgage and does not disclose that the mort- gage embraced a second note in which he was payee, is estopped to deny the truth of his representation. Cropley v. Byster, 9 App. D. C. 373 ; 24 W. L. R. 829. One who deals with a corporation by taking its notes and securities securing payment thereof, is estopped to thereafter deny its corporate capacity. Ohio Nat. Bank v. Construction Co., 17 App. D. C. 524; 29 W. I.. R. 107. As to estoppel of one signing a waiver on a note to deny genuineness of his indorsement. See Boime v. Hume, 13 App. D. C. 286; 26 W. L. R. 690. Where a purchaser makes investigations of the property on his own account before concluding to contract and without opposition on the part of the vendor, he cannot afterwards claim that the vendor made false representations respecting the subject investigated. Shappirio v. Goldberg, 20 App. D. 185 ; 30 W. L. R. 450. It is only where the means of knowledge are at hand and equally available to both parties that a purchaser cannot be heard to say that he was deceived by his vendor's misrepresentations. Clark v. Harmer, 9 App. D. C. 1 ; 24 W. L. R. 345. Of purchaser at a tax sale and his assignee to question the authority under which the sale was made. Bride v. Macfarland, 18 App. D. C. 120; 29 W. L. R. 242. Where defendant in an action on a foreign judgment claims a vari- ance between the declaration and the transcript in respect of the date of the judgment and plaintiff amends to meet the variance, defendant, on retrial, will not be heard to say that the judgment was originally properly pleaded. Clark v. Barber, 21 App. D. C. 274; 31 W. L. R. 94. A surviving partner who has mingled money of the partnership with his own and deposited the whole in bank, in his own name, will not be heard to say that he has converted the money and thereby made himself a mere debtor of the partnership. Mayers v. Cummings, 17 App. D. C. 269; 29 W. L. R. 3. One appearing and pleading to an information and submitting to be tried thereon without objection cannot afterwards be heard to deny its legal sufficiency. Latney v. United States, 18 App. D. C. 265; 29 W. L. R. 363. As to right of one to complain on appeal of that which he has co- operated in doing in the lower court. See Bvans v. Schoonmaker, 2 App. D. C. 62; 23 W. L. R. 78. A judgment debtor agreeing to waive his right to plead the statute of limitations and that the judgment may be enforced until actually paid, is estopped to plead the statute to a sci. fa. or in an action of debt on the judgment. Mann v. Cooper, 2 App. D. C. 226; 22 W. L. R- 98. A party who by his acknowledgment of a debt has removed the bar or prevented the running of the statute of limitations, cannot be per- mitted to overcome the effect of such acknowledgment by a declaration or claim made upon a different occasion. Bean v. Wheatley, 13 App. D. C. 473; 26 W. Iv. R. 805. 396 Eviction — Evid^ncS. Where in an action to recover a balance of purchase-money the pur- chaser successfully defends on the ground that the vendor had accepted his offer to assign a portion of a claim held by him in payment of the purchase-money, he is estopped to thereafter deny the assignment. Dex- ter V. Gordon, 11 App. D. C. 60 ; 25 W. L. R. 421. IV. Generally. The allegations of a bill to foreclose a mortgage as of the separate estate of a married woman, held not sufficient to present in a manner proper for decision the question of defendant's estoppel to deny that the mortgage was of such separate estate. Smith v. Gilmore, 7 App. D. C. 193; 23 W. L. R. 717. As to estoppel of creditor to deny sufficiency of deed of assignment as a conveyance of land. See Keane v. Chamberlain, 14 App. D. C. 84; 27 W. L. R. 98. As to estoppel of vice-consul-general to claim one-half of salary of consul-general during the period of the absence of the latter from his post of duty. See United States v. Day, 27 App. D. C. 458 ; 34 W. L. R. 355. . See also Bills and Nores ; Election of REMBDies ; Patents ; Trusts AND Trustees. EVICTION. As to effect of wrongful eviction of tenant from part of demised prem- ises, to suspend entire rent. See Okie v. Person, 23 App. D. C. 170; 32 W. L. R. 103. As defense to action by landlord for rent. See The Richmond v. Cake, 1 App. D. C. 447; 21 W. L. R. 819. EVIDENCE. I. Admissibility in General. II. Relevancy, MateriaHty and Competency. III. Declarations and Admissions. IV. Confessions. V. Expert and Opinion. VI. Hearsay. VII. Confidential Communications and Evidence Wife. VIII. Parol. IX. Pleadings as. X. Documentary. XL Leading Questions. XII. Objections to Admissibility. XIII. Cure of Error in Admission and Exclusion. XIV. Depositions. XV. Impeachment of Witnesses. XVI. Order of Proof. XVII. Cross-examination. XVIII. Burden of Proof. XIX. Responsiveness of Answers. XX. Striking Out. XXI. Weight and Sufficiency. XXII. Generally. by Husband and I. Admissibility in General. The contents of letters can not be given in evidence where no suf- Evidence;. 397 ficient reason for the failure to produce the letters themselves is shown. Bass V. United States, 20 App. D. C. 232; 30 W. L. R. 546. Neither books of account nor other memoranda are admissible in evidence where there are living witnesses present who are cognizant of the transaction sought to be proved and fully competent to testify as to it. Crawford v. United States, 35 W. L. R. 478. When the condition or appearance of an object is material to the issue, the object itself may be produced in court and its identity established, and it may be shown that it has existed in this state since the time when the issue arose. Dis. of Col. v. Duryee, 29 App. D. C. 327; 35 W. L. R. 254. The price for which property sold at public sale six months after a breach of contract for sale of the property is admissible to show the value of the property at the time of the breach. Hazleton v. he Due, 10 App. D. C. 379; 25 W. L. R. 280. A judgment against a defaulting officer of the Government is admis- sible in an action against the sureties on his bond, but is not conclusive of their liability. Moses v. United States, 166 U. S. 571. The admission of an unauthorized contract of an agent before the in- troduction of evidence of ratification is not reversible error. Hazleton V. Le Due, 10 App. D. C. 379 ; 25 W. L. R. 280. As to admissibility, in construing will, of evidence of testamentary intent. See Kaiser v. Brandenburg, 16 App. D. C. 310; 28 W. L. R. 395. As to admissibility of extrinsic evidence in aid of construction of will. See Athins v. Best, 27 App. D. C. 148; 34 W. L. R. 292. As to admissibihty in will contest of a so-called unnatural and un- just disposition of testator's estate as a circumstance indicative of the want of testamentary capacity. See Morgan v. Morgan, 36 W. L. R. 134. As to admissibility in a will contest of testimony relating to the men- tal capacity of a testator before and after the date of the execution of the will. See In re Will of Griffith, 31 W. L. R. 15. A deed in which a champertous contract between an attorney and client is contained, is inadmissible in evidence, in an action of ejectment brought by the attorney in his own name, as a link in his chain of title. Peck V. Heurich, 6 App. D. C. 273; 23 W. L. R. 289. In an action of ejectment, where the defense is adverse possession, defendant may show that, in the neighborhood he was reputed to be the owner of the property in dispute. Holtzman v. Douglas, 5 App. D. C. 397; 23 W. L. R. 146. Admissibility in action of ejectment of marshal's deeds and tax deeds, and immateriality of -whether valid or not. Mackall v. Mitchell, 18 App. D. C. 58; 29 W. L. R. 244. As to admissibility in action of ejectment of a will probated as a will of personalty. See Young v. Norris Peters Co., 27 App. D. C. 140 ; 34 W. L. R. 240. As to admissibility in action to recover rent, of evidence tending to show acceptance by landlord of surrender of demised premises. See Okie V. Person, 23 App. D. C. 170 ; 32 W. L. R. 103. The dishonor by a bank of one check does not preclude the depositor 39^ Evidence. from drawing other checks ; and in an action by the depositor against the bank evidence of the wrongful dishonor of each separate check drawn by him against his deposit is properly admitted. Columbia Nat. Bank V. MacKnight, 29 App. D. C. 580; 35 W. L. R. 434. In an action for injury to plaintiiFs character and reputation caused by the wrongful dishonor of a check, the plaintiff's character is in issue; but particular instances of misconduct are not admissible, especially where the specific acts sought to be proved were committed after the happening of the injury. The fact that plaintiff continued to draw checks against his account after the deposit was exhausted held rightly excluded. lb. As to admissibility of evidence in action on promissory note alleged to have been materially altered. See Ofenstein v. Bryan, 20 App. D. C. 1 ; 30 W. L. R. 270. As to admissibility to show that a party writing his name on the back of a note before its delivery is a technical indorser. See Chandler & Taylor Co. v. Norwood, 14 App. D. C. 357; 27 W. L. R. 166. Admissibility of evidence to show a collateral understanding relative to a promissory note. Knight v. Walker Brick Co., 23 App. D. C. 519; 32 W. L. R. 327. As to admissibility of evidence of a parol license to use land. See Jackson V. Emmons, 19 App. D. C. 250; 30 W. L. R. 72. Admissibility ; proper exclusion of evidence of injuries sustained through one of three separate and distinct trespasses, which was barred by the statute of limitations. Jackson v. Emmons, 25 App. D. C. 146 ; 33 W. L. R. 165. As to proof that written instrument was executed and delivered at a date subsequent to that stated on its face. See Dis. of Col. v. Camden Iron Works, 15 App. D. C. 198 ; 27 W. L. R. 462. In an action for false arrest defendants may offer evidence to defeat plaintiff's claim altogether and also in mitigation of punitive damages. Woodward v. Ragland, 5 App. D. C. 220; 23 W. L. R. 81. As to admissibility of evidence in prosecution for procuring a mis- carriage. See Thompson v. United States, 36 W. L. R. 98. As to admissibiUty of evidence in prosecution for violation of § 5480, Rev. Stat. See Bass v. United States, 20 App. D. C. 232; 30 W. L. R- 546. As to admissibility of evidence to prove intent of one accused of vio- lation of § 5480, Rev. Stat. See lb. As to admissibility of divorce proceedings in action for libel by a di- vorced wife against her former husband. See Wills v. Jones, 13 App. D. C. 482 ; 27 W. L. R. 19. As to admissibility, in action for libel, of evidence to prove truth of libelous words. See Pickford v. Talbott, 28 App. D. C. 498; 35 W. L. R. 78. As to admissibility of evidence on trial of indictment for receiving embezzled property. See Gassenheimer v. United States, 26 App. D. C. 432; 34 W. L. R. 80. Admissibility in prosecution for larceny. See Ryan v. United States, 26 App. D. C. 74; 33 W. L. R. 516. Evidence. 399 As to admissibility of evidence to show motive for murder. See Pearson v. United States, 10 App. D. C. 536 ; 35 W. L. R. 526. As to admissibility of evidence in support of defense of insanity of one on trial for murder. See Snell v. United States, 16 App. D. C. 501 ; 28 W. L. R. S18. Testimony as to the conduct of a person accused of crime, after he has reason to believe he is suspected of the offense charged, is inadmis- sible for the purpose of drawing an inference of consciousness of inno- cence. Crawford v. United States, 35 W. L. R. 478. In a prosecution for homicide, where it was shown that at the date of the homicide defendant wore no beard but only a moustache, while at the trial he wore a full beard, a photograph taken by the officer having him in custody shortly after his arrest is admissible to enable a witness to identify defendant as the person seen loitering in the vicinity of the scene of the crime, and such taking and use of the photograph is not a violation of the principle that an accused person cannot be re- quired to give evidence against himself or to furnish evidence to be so used. Shaffer v. United States, 34 App. D. C. 417 ; 33 W. L. R. 4. As to admissibility of evidence in prosecution for allowing a dangerous dog to run at large. See Tubins v. Dis. of Col, 21 App. D. C. 367; 31 W. L. R. 460. As to admissibility of testimony in prosecution for rape as to exam- ination of the prosecuting witness and what was disclosed thereby. See Lyles V. United States, 20 App. D. C. 559; 31 W. L. R. 67. The fact that the prosecuting witness made complaint recently after the commission of the alleged crime is admissible generally as evidence in chief. lb. Admissibility of record of first conviction on prosecution for second offense. Latney v. United States, 18 App. D. C. 265 ; 29 W. L. R. 363. As to admissibility of evidence in action by wife for the alienation of her husband's affections and for crim. con. with him. See Dodge v. Rush, 28 App. D. C. 149; 34 W. L. R. 501. As to admissibility of evidence in action for deceit. See Browning v. Nat. Capital Bank, 13 App. D. C. 1 ; 36 W. L. R. 357. Under a general allegation of damages in an action for death by wrongful act evidence is admissible as to all damages which naturally and necessarily would result. Dis. of Col. v. Wilcox, 4 App. D. C. 90 ; 33 W. L. R. 633. In an action to recover damages for personal injuries releases by the plaintiff are admissible under a general issue plea of not guilty. Brown V. Balto. & O. R. R. Co., 6 App. D. C. 237 ; 33 W. L. R. 337. In an action for personal injuries, evidence tending to show that plaintiff had not furnished the deposit for costs, or the money tendered to repay that received as a consideration for a release, is inadmissible. Rockwell V. Capital Traction Co., 35 App. D. C. 98 ; 33 W. L. R. 338. Admissibility, in action for personal injuries, of testimony as to medi- cal treatment received after institution of suit. Hubbard v. Perlie, 35 App. D. C. 477 ; 33 W. L. R. 483. As to admissibility of evidence on question of negligence and con- tributory negligence in action for personal injuries caused by contact 400 Evidence. with electric wires. See Clements v. Potomac Electric Power Co., 26 App. D. C. 482; 34 W. L. R. 158. In a suit to recover damages from a street railway company for an alleged unlawful ejection from a car which plaintiff entered at a point other than that designated on a transfer tendered in payment of his fare, testimony by a witness that he had never changed cars at any other point than the one at which the change was made by plaintiff, held in- admissible to prove a custom or that some conductors had violated the regulations of the company. Shortsleeves v. Capital Traction Co., 28 App D. C. 365; 35 W. L. R. 4. Admissibility and weight, in action against railway for personal in- juries, of evidence of general custom of other railways in the matter of construction, operation and maintenance. McDermott v. Severe, 25 App. D. C. 276; 33 W. L. R. 226. Evidence offered by a street railway company, defendant in a personal injury case, through its claim agent and another, to show that its em- ployes had made no report of the accident and that it had been unable to hear of anyone who knew anything about it, is inadmissible when ob- jected to. Guenther v. Metropolitan R. R. Co., 23 App. D. C. 493; 32 W. L. R. 422. Admissibility, in action for personal injuries, to show that defendant is insured against loss on account of negligence. Holtzman v. Capital Construction Co., 33 W. L. R. 531. As to admissibility of evidence in action for injuries sustained while riding on a free pass issued by a railroad, that the pass was not issued as a mere gratuity. See Boering v. Chesapeake Beach Ry. Co., 20 App. D. C. 500; 30 W. L. R. 742. As to admissibility of testimony of a witness to prove the condition of a sewer-trap lid at the time of an accident caused by stepping thereon, by showing its condition four days after the accident. Bissell v. Dis. of Col., 28 App. D. C. 38; 34 W. L. R. 544. In an action to recover for injuries to plaintiff's premises by the over- flow of a sewer, alleged to have been caused by obstructions therein, evidence of the existence of sand and other accumulations in the sewer four days after the overflow is admissible as tending to show the condi- tion of the sewer at the time of the overflow. Dis. of Col. v. Gray, 6 App. D. C. 314 ; 23 .W. L. R. 340. In an action against a municipality and a market company for in- juries sustained by plaintiff in slipping upon a piece of vegetable matter on the sidewalk, the result of an unlawful occupation of the sidewalk by hucksters, Held, that evidence of the prior condition of the walk was admissible. O'Dwycr v. Market Co., 36 W. L. R. 50. As to admissibility of evidence of subsequent events to show negli- gence. See Scott V. Dis. of Col, 27 App. D. C. 413; 34 W. L. R. 420. The extent to which cumulative testimony shall be admitted is discre- tionary with the trial court. Trometer v. Dis. of Col., 24 App. D. C. 242; 32 W. L. R. 763. Section 1271 of Code relative to new promise to take a case out of the statute of limitations, does not make testimony as to an oral prom- ise wholly inadmissible in evidence, but simply provides that it shall Evidence. 401 not be deemed sufficient evidence. Shelley v. Wescott, 23 App. D. C. 135 ; 33 W. L. R.. 68. In a suit for an accounting by a cestui que trust against the personal representative of a deceased trustee, a letter written by the trustee to a third part)* is not admissible in evidence against the complainant. Richardson v. Van Auken, 5 App. D. C. 309; 33 W. L. R. 103. As to admissibility of evidence to show waiver of condition of bond in action thereon. See Guilford Granite Co. v. Harrison Co., 33 App. D. C. 1; 31 W. L. R. 759. As to admissibility in evidence, in action by United States on bond of disbursing officer, of transcript from Treasury containing copy of bond and statement of account. See Goif v. United States, 33 App. D. C. 513; 31 W. L. R. 710. Where a written contract of purchase and sale is silent as to the pur- chase-price, documentary and parol evidence is admissible to show the price to be paid. Landvoight v. Paul, 37 App. D. C. 433; 34 W. L. R- 398. As to admissibility of handwritings for purposes of comparison. See Keyser v. Pickrell, 4 App. D. C. 198 ; 23 W. L. R. 639. In an action by an attorney to recover a contingent fee, a question as to what would be a customary fee taking into consideration that it was contingent, is inadmissible under a quantum meruit. Gilbert v. Fay, 4 App. D. C. 38; 22 W. L. R. 473. In an action to recover the value given in an intended exchange, for land alleged to have no real existence, a letter purporting to be from an official of the county in which the land was said to be located, refusing to accept for record a deed of the land sent him by plaintiff, is not admissible, when not verified. Main v. Aukam, 4 App. D. C. 51 ; 33 W. L. R. 633. On the hearing of an application for extradition evidence is admis- sible to show that accused was never within the demanding state and was not a fugitive from justice. In re Lyon, 34 W. L. R. 679. Pertinent and relevant testimony will not be excluded because the question eliciting it is not properly framed and may in itself have been objectionable, unless it plainly appears that injustice was done the other party by way of surprise or otherwise. Burke v. Claughton, 13 App. D. C. 183; 36 W. L. R. 331. II. Relevancy, Materiality and Competency. Whether a circumstance offered in evidence is material or relevant is primarily for the trial court to decide, and the exercise of his dis- cretion will not be disturbed unless error to the possible prejudice of the accused be made reasonably clear. Punk v. United States, 16 App. D. C. 478; 38 W. L. R. 486. While vouchers are proper to be filed by guardians and others as prima facie evidence of their distributions, the production of receipts is not the only method by which the payment of money may be proved. The person making the payment and claiming credit therefor is com- petent to prove the fact by his own oath, without the production of any 402 Evidsncb;. receipt or voucher. Corcoran v. Renehan, 24 App. D. C. 411; 32 W. L. R. 806. A count for money had and received may in general be proved by any legal evidence showing that defendant has received or obtained posses- sion of the money of the plaintiff which in equity and good conscience he ought to pay over to the plaintiff, and such a count may be supported by evidence in- regard to things treated as money, as for example, a promissory note. Harr v. Roome, 28 App. D. C. 214; 34 W. L. R. 709. As to competency, in will contest, of evidence relative to the condi- tions surrounding the natural objects of testator's bounty. See Barbour V. Moore, 10 App. D. C. 30 ; 25 W. L. R. 55. As to competency of attesting witness to will on question of the place of its execution. See Ih. As to competency of certificates of physicians to prove insanity of a testator. See Keely v. Moore, 23 App. D. C. 9 ; 31 W. L. R. 339. A release by a servant to his master, of claims for personal injuries, which has no restrospective operation, is not admissible in evidence in a suit by such servant against his master for injuries received more than a year before the release was executed. Hughson v. Richmond Sf D. R. R. Co., 2 App. D. C. 98; 22 W. L. R. 55. In an action against a railroad company for damages for injuries al- leged to have been caused by negligence in the too narrow construction of a bridge on its line, evidence by plaintiff as to the width of bridges on another line of railroad held properly excluded. Weaver v. Balto. &■ Ohio R. R. Co., 3 App. D. C- 436 ; 22 W. L. R. 393. In an action for damages for injuries sustained by one in attempting to pass over a railroad crossing, at which was a gate and attendant, evidence to show that the attendant was alseep two hours and a half before the accident is admissible as tending to show that he was alseep at the time thereof. Balto. Pot. R. R. Co. v. Carrington, 3 App. D. C. 101; 22 W. L. R. 284. As to admissibility of evidence of crowded condition of car in an ac- tion for damages for injuries caused by the sudden starting of the car while party was attempting to alight. See Metropolitan R. R. Co. v. Jones, 1 App. D. C. 200; 21 W. L. R. 646. In an action for personal injuries, resulting from an accident to a street car caused by the blowing out of a fuse box and the resulting flame, it is not error to refuse to allow the clothes worn by the plaintiff at the time of the accident to be exhibited to the jury. Right v. Metropolitan R. R. Co., 21 App. D. C. 494 ; 31 W. L. R. 302. In an action for personal injuries sustained in the fall of a passenger elevator in an apartment house leased and operated by the defendant, it is error to permit the plaintiff, on cross-examination of a witness for defendant, to call forth testimony to the effect that the defendant com- pany was insured against accidents to its elevator. Capital Construction Co. V. Holtcman, 27 App. D. C. 125; 34 W. L. R. 223. Such evidence being wholly incompetent for any purpose, a general ob- jection only is sufficient to require its exclusion; and even if the testi- mony should be stricken out and the jury instructed to disregard it, the ?rror in its adtnission would not be cured. lb, Evidence. 403 Questions intended to elicit the fact that a defendant, sued for injuries alleged to have been occasioned by its negligence in the operation of a passenger elevator, was protected by insurance against such accidents, are wholly incompetent, and when asked the courts should not inquire too closely into the ground upon which an objection is based. lb. In an action for injuries caused by the fall of a passenger elevator, the manager of defendant was asked, on cross-examination, if defendant was not insured against accidents to its elevator. The question was objected to by defendant on the ground that the matter was of no im- portance. The objection was overruled, and he answered that it was so insured. Held, on motion for new trial, that although such evidence was ordinarily incompetent, under the circumstances of this case defendant had waived the right to insist upon it as ground for new trial. Holtzman V. Capital Construction Co., 33 W. L. R. 531. As to admissibility, in action for wrongful death brought for the ben- efit of the father of decedent, of evidence of the physical and financial condition of the latter. See V. S. Electric Co. v. Sullivan, 22 App. D. C. 115; 31 W. Iv. R. 406. In a prosecution for murder, held, that the refusal of the trial court to permit the defendant to prove the dangerous character of the de- ceased was not error, his own statement being that he did not kill de- ceased intentionally or under any apprehension that it was necessary to do so to save his own life or prevent serious bodily harm. Trovers v. United States, 6 App. D. C. 450; 23 W. L. R. 469. Where the mother of defendant in a prosecution for homicide, testify- ing in his behalf, stated that defendant and deceased were always friend- ly, and that she had never heard him threaten her or say he would take her life, it is competent on cross-examination to ask her if she had not said, immediately after the death of deceased, that she had for a long time tried to prevent defendant from killing deceased in her house, and, upon her denial, to introduce evidence to contradict her. Grant v. United States, 28 App. D. C. 169; 34 W. L. R. 654. It is not necessary for the Government to prove a motive in a prosecu- tion for murder. Lanckton v. United States, 18 App. D. C. 348 ; 29 W. L. R. 494. Indictment as showing of probable cause for purpose of extradition. See Farr v. Palmer, 24 App. D. C. 234 ; 32 W. L. R. 712. As to competency of evidence in a prosecution for conspiracy to de- fraud the United States. See Lorenz v. United States, 24 App. D. C. 337; 32 W. L. R. 822. As to right of party charged with violating the police regulation rela- tive to handle-bars on bicycles to introduce evidence as to its unreason- ableness and oppressiveness. See Moore v. Dis. of Col., 12 App. D. C. 537; 26 W. L. R. 343. In an action by a real estate broker to recover commissions for a sale made on terms which provide that on the purchaser agreeing to build no cash would be required of him, but that the owner would furnish the money for building, on the purchaser giving a bond to the owner secured by deed of trust, held that evidence that the purchaser was in- 404 EviDBNci;. solvent was irrelevant. Ross v. Pickling, 11 App. D. C. 442; 35 W. L. R. 806. In an action against the United States Marshal for virrongful seizure and detention of goods, evidence of what, in the opinion of witnesses, plaintiff might have sold the goods for at auction if the contemplated sale had not been interrupted, is not admissible to determine the market Value of the goods at the time of the seizure. Palmer v. Augenstein, 18 App. D. C. 511; 29 W. L. R. 559. Testimony of one holding the proxy of another as to the intention of such other in giving it to him is inadmissible in evidence. Bradford v. National Ben. Asso., 26 App. D. C. 268 ; 33 W. L. R. 786. An agent is not incompetent to testify to facts showing' or tending to show his own agency; but until there has been some proof of such agency representations and statements by the alleged agent are not competent to be introduced in evidence. Russell v. Washington Savings Bank, 23 App. D. C. 398; 32 W. L. R. 378. As to materiality of certain evidence in an action against an insurance broker for negligently placing insurance with an irresponsible insurer. See Mallery v. Prye, 21 App. D. C. 105 ; 31 W. L. R. 63. Upon a plea setting up a defence of fraud in an action on a contract, it is competent for the defendant to show that the fraud complained of oc- curred in the procurement of a contract for which the contract sued on was a substitute or of which it was a modification. Clark v. Harmer, 9 App. D. C. 1; 24 W. L. R. 345. In a suit on a building contractor's bond, conditioned on the perform- ance of a contract to erect buildings according to the plans submitted, specifications prepared before the execution of the bond and contract, but not mentioned in the contract, are admissible in evidence, such specifications being properly embraced in the term plans. Whelan v. McCullough, 4 App. D. C. 58 ; 22 W. L. R. 636. In a suit against a surety on a building contractor's bond, certain equity proceedings and the decree therein, establishing mechanic's liens against the buildings, which complainant was compelled to pay, are admissible in evidence as a judicial ascertainment of the extent of the damages sustained by reason of the principal's default, especially where the surety was a party to such proceedings. lb. In an action to recover damages for breach of a covenant not to en- gage in the business sold, evidence that the value placed on the stock by defendant was much less than the price paid is admissible for the purpose of showing the value of the good will. Helphenstine v. Downey, 7 App. D. C. 343; 24 W. L. R. 7. In an action of libel against several defendants, evidence of the -wealth of one of them, offered as bearing on the allowance of exemplary dam- ages, is inadmissible. Gas Light Co. v. Lansden, 173 U. S. 534, reversing 9 App. D. C. 508. One not related in any way to a family, the relationship of the va- rious members of which was in question, who knew personally but one member of the family, but had represented others of them in certain litigation, and who knew the names and addresses of all the members of the family, and had corresponded with them, held not competent to Evidence. 405 testify as to the pedigree of such family. Scott v. H err ell, 27 App. D. C. 395; 34 W. L. R. 401. Where the question in issue in an action at law is what was done under certain circumstances, testimony as to what might have been done under other circumstances is irrelevant. Second Nat. Bank v. Averell, 2 App. D. C. 470; 32 W. L. R. 185. Where a witness for the prosecution gives a part of a conversation between himself and defendant, it is competent for defendant, upon cross- examination, to give the entire conversation. Bass v. United States, 20 App. D. C. 232; 30 W. L. R. 546. Where in an action to recover for storage of railroad ties, a special contract therefor is found to have existed, the exclusion of evidence as to the value of each of the ties, the value of the land on which stored and the reasonableness of storage charges, is not reversible error. Lans- burgh V. Wimsatt, 7 App. D. C. 273 ; 23 W. L. R. 815. Whenever a writing or document sought to be proved by one party to a suit is shown to have been in the possession of the opposite party, secondary evidence of its contents cannot be given without a preliminary notice to produce the original. Main v. Aukam, 4 App. D. C. 51. It is not required that a witness testifying to the handwriting of a party should have seen him write; but proof of handwriting may consist of ordinary circumstancial evidence showing a reasonable probability of the writing having been made by the person purporting to have made it. Shaffer v. United States, 24 App. D. C. 417 ; 33 W. L. R. 4. Section 964, D. C. Code, does not prohibit all evidence of confessions in divorce cases. Michalowicz v. Michalowicz, 25 App. D. C. 484; 33 W. L. R. 442. As to testimony of surviving party made incompetent by § 1064 of Code. See Dawson v. Waggaman, 23 App. D. C. 428; 32 W. L. R. 226. As to materiality of evidence of when war revenue stamp affixed to deed. See Crandall v. Lynch, 30 App. D. C. 73; 30 W. L. R. 326. III. Declarations and Admissions. Declarations by a testatrix, at the time of making advancements, that they were to be deducted from the share of the person advanced in her estate, are part of the res gestce and admissible on the question of her intent in making the gifts. Miller v. Payne, 28 App. D. C. 396; 34 W. L. R. 798. In a will contest, statements by testatrix about the will at the time of its execution, made to her physician, are admissible as part of the res gestce. Shelley's Will, 34 W. L. R. 801. Declarations of a testator or grantor are not admissible to show undue influence, although they may be admitted to show mental condition. Towson V. Moore, 11 App. D. C. 377 ; 35 W. L. R. 706. In a case in which a will is assailed for want of testamentary capacity and undue influence, declarations of the testator are admissible to show his motive, feelings and designs. Barbour v. Moore, 4 App. D. C. 535 ; 33 W. L. R. 792. Declarations of a testator made to witnesses relative to his wishes and intentions are not admissible in explanation of provisions of his 4o6 Evidence. will ; the provisions themselves must be looked to. McAleer v. Schneider, 3 App. D. C. 461; 22 W. L. R. 193. As to admissibility of declarations of a testatrix, made after executing her will, to show that she did not know the contents thereof. Lipphard V. Humphreys, 28 App. D. C. 355 ; 34 W. L. R. 788. See 209 U. S. 264. Written or oral declarations of a testator, made subsequently to the execution of a will, and tending to show the existence of another will not otherwise proved, or tending to show the state of his affections for his relatives, and an alleged change in his feelings toward the relatives of one of the legatees but not toward the legatee herself, are not ad- missible for the purpose of asking the jury to infer from them that the testator revoked such will. Throckmorton v. Holt, 180 U. S. 552; 29 W, L. R. 221. Declarations of testatrix, admissible in a will contest on the question of mental capacity are to be excluded in determining the issue of undue influence. Shelley's Will, 34 W. L. R. 801. As to competency, in a will contest, of declarations by a caveatee relative to the mental incapacity of testator. See Robinson v. Duvall, 27 App. D. C. 535 ; 34 W. L. R. 446. As to admissibility of declarations of a decedent, whose will is in controversy, on issues as to execution and revocation. See Throck- morton V. Holt, 12 App. D. C. 552; 180 U. S. 552. Declarations, either oral or written, made by a testator, either before or after the date of an alleged will, unless made near enough to the time of its execution to become part of the res gestm, are not within any ex- ception to the rule excluding hearsay evidence, and are not admissible in evidence in favor of or against the validity of the will, except in cases where the mental or testamentary capacity of the testator is in issue. Throckmorton v. Holt, 180 U. S. 552; 29 W. L. R. 221. Declarations of the donor of a gift caM.ro mortis at or about the time of making it, or at the time it is alleged to have been made, are admis- sible if they constitute part of the res gestae, and tend to show the in- tention or mental condition of the donor. Dawson v. Waggaman, 23 App. D. C. 428; 32 W. L. R. 226, As to admissibility in a will contest of declarations of testator. See Utermehle v. Norment, 22 App. D. C. 31; 31 W. L. R. 323. Declarations made by a person injured immediately after the receipt of the injury are admissible in evidence as part of the res gestce. Dis. of Col. V. Dietrich, 23 App. D. C. 577 ; 32 W. L. R. 360. In an action against a street railway company for injuries alleged to have been caused by the sudden starting of a car, a declaration of de- fendant's transfer agent made from two to five minutes after the acci- dent is not admissible as part of the res gestce, such agent not being an actor in the occurrence and his declaration being narrative only of a past transaction. Met. R. R. Co. v. Collins, 1 App. D. C. 383; 21 W. L. R- 811. Declarations of a boy 14 years of age, fatally injured in a street rail- way accident, made at the scene of the accident a few minutes after the occurrence and while lying between the tracks with his legs nearly sev- ered from his body, in response to questions of his mother, held ad- EviDllNC^. 407 missible as part of the res gesta. Similar statements made by him to the officer of the ambulance while on the way to the hospital held in- admissible as being of the character of a narrative of a past transaction; but their admission held not to constitute reversible error. Wash. & G. R. R. Co. V. McLane, 11 App. D. C. 220; 25 W. L. R. 485. In an action against a carrier for personal injuries received by a passenger in attempting to alight from a car, declarations of a brother of plaintiff, who had preceded her in alighting, made immediately after the accident, held mere expressions of opinion relating to a past occur- rence, and not admissible as part of the res gestce. Kehan v. Washington Ry. & Bl. Co., 38 App. D. C. 108 ; 34 W. L. R. 451. A statement procured from the plaintiff in an action for personal in- juries to an agent of the defendant on the morning after the accident and while suffering severe pain from the injury received, held io be con- sidered by the jury in connection with the circumstances under which the alleged admission was made. City & Suburban Ry. Co. v. Svedborg, 20 App. D. C. 543 ; 30 W. L. R. 823. When a statement made by a plaintiff shortly after the accident is sought to be used against him on the trial of his action for personal in- juries, it is not error for the court, on cross-examination of the agent of the company who had procured the statement, to require the pro- duction of the original notes taken by such agent at the time of the in- terview and from which the statement read in evidence was written out by him. lb. In an action for personal injuries, where there was evidence on behalf of defendant of statements alleged to have been made by plaintiff at the time of the accident, some of which purported to exonerate the em- ployees of defendant from blame, and which statements were somewhat at variance with her testimony on the trial, which in view of her advanced age and inability to attend court, was taken by deposition, the jury were properly instructed that if they should find she made such statements and should further find that at the time of making them she was suffering from shock and pain, they were to look at the difference between such statements and her testimony on the trial in the point of view of her condition when making each, and to consider what effect the shock and pain from which she was suffering, if she was so suffering, at the time of the former statement, may have had on her ability to correctly ascribe the true cause of the accident. Columbia Ry. Co. v. Cruit, 20 App. D. C. 521 ; 30 W. L. R. 776. In such case instructions to the effect that if the jury should find that plaintiff made such statements, they would have a tendency to weaken or destroy her testimony on the trial, and that there was no evidence in the case from which they could find that at the time of making such statements, if in fact made, her mind was in such a state that she did not fully understand what occurred and what she said, were properly refused. lb. The admissions or recitals of facts made by a party in the pleadings of another and different case are not generally competent evidence ; nor are verbal admissions of counsel, made in the trial of another cause, ad- 4o8 Evidence. missible against their client. Keyser v. Pickrell, i App. D. C. 198; 22 W. L. R. 639. Where a paragraph in an answer filed in a suit for partition is sought to be used against the party making it in a suit at law involving her title to property, as an admission against interest, she will be entitled to have all that she said in the answer, in immediate connection, considered by the jury. Posey v. Hanson, 10 App. D. C. 496; 25 W. L. R. 299. An answer to a bill in equity, even when sworn to by defendant as true to the best of her knowledge and belief, is admissible as an admis- sion merely, and cannot operate as an estoppel. Ih. In an action upon a policy of accident insurance, declarations by the assured, an osteopathist, made shortly after the accident, tending to show that he was then suffering severe bodily pain and had sustained an accidental strain in the treatment of a patient, are admissible in evidence as part of the res gestiB. Paterson v. Ocean Accident & G. Corp., 25 App. D. C. 46; 33 W. L. R. 274. Statements by the assured to his attending physician, made the day after the accident, tending to show his bodily pain, the particular location of the same, and the symptoms of his malady, are admissible in evidence; but his statement then made tending to show that he had received a strain the day before to which he attributed his condition, are properly exclud- ed as not bein part of the res gestce. lb. Declarations of a deceased attesting witness to an instrument are not admissible to show, in disparagement of the evidence of due execution afforded by his signature, that the signature attested by him was forged. United States v. Boyd, 8 App. D. C. 440; 24 W. L. R. 298. Declarations of the members of the family of one ancestor alone are inadmissible to show that another person, whose estate they claim by descent, was the brother of that ancestor, but there must be competent evidence aliunde of relationship between such other persons and the de- clarants. Welch V. Lynch, 35 W. L. R. 398. In an action of replevin by the collector of a decedent's estate in- volving the right to the possession of certain notes claimed as a gift causa mortis, the declarations of decedent made a few days before death that she had settled her affairs and made her will and was satisfied with it are admissible as part of the res gestae, and by reference to the will in such declarations it was imported into the res gestce and made part of them and was properly admitted in evidence to show decedent's in- tention in regard to the disposition of her property and impliedly to disprove the theory of a donatio causa mortis. Dawson v. Waggaman, 23 App. D. C. 428 ; 32 W. L. R. 226. While declarations of persons in possession of personal property ex- planatory of the character of their possession are competent as part of the res gestce in an action of replevin, the rule does not extend to decla- rations as to the source of their title or the manner in which they ac- quired the property, and such declarations are not admissible in evidence. Samaha v. Mason, 27 App. D. C. 470; 34 W. L. R. 403. Unsworn declarations made in his own interest by a party to a suit before such suit is brought, and where he is called, sworn, and testifies at the trial to the same effect as to an alleged fact, should rarely if ever EviD^NCB. 409 be considered admissible, and their exclusion is not reversible error. lb. As to admissibility of admissions of one of the defendants in a prose- cution for conspiracy. See Lorens v. United States, 34 App. D. C. 337; 33 W. L. R. 833. In a prosecution for homicide, declarations made by the deceased im- mediately after the receipt of the fatal wound and while blood was flow- ing therefrom, that "I am cut to death; Eddie (the defendant) has cut me to death," held admissible as part of the res gestce. Grant v. United States, 38 App. D. C. 169; 34 W. L. R. 654. Self-serving declarations made by a decedent in his lifetime are not competent in a suit against his executor, in whose behalf they are sought to be introduced, when such declarations were not made in the presence of the complainant or communicated to him. Nieman v. Mitchell, 3 App. D. C. 195; S3 W. L. R. 59. The rule as to the admissibility of evidence as part of the res gestce is more strictly construed where the declarations of agents or employes of a defendant are sought to be used against him, and especially so where the declarant may be actuated by a desire to exculpate himself from blame by inculpating another. Met. R. R. Co. v. Collins, 1 App. D. C. 383; 31 W. L. R. 811. Questions propounded to a defendant in a prosecution for conspiracy held to call for self-serving declarations and the refusal of the court to permit defendant to answer them held proper. Crawford v. United States, 35 W. L. R. 478. In a suit seeking to have a trust declared on real estate conveyed and caused to be conveyed by a husband to his wife, subsequent declarations of the husband asserting ownership of the property, without the express assent of the grantee, are not admissible to affect her title. McCartney V. Fletcher, 11 App. D. C. 1; 35 W. L. R. 403. A statement by one of the parties to an agreement, not made in the presence of the one against whom it is sought to be used or under cir- cumstances in which it could be held to bind him in any way, is not ad- missible. Clark V. Harmon, 9 App. D. C. 1 ; 24 W. L. R. 345. As to admissibility of admissions made by defendant in a prosecution for violation of the act of Feb. 3, 1899, known as the "Smoke Law." See Sinclair v. Dis. of Col., 30 App. D. C. 336 ; 30 W. L. R. 515. Conversations between a witness and a defendant in a criminal case are not competent evidence on behalf of defendant when they constitute no part of the transaction for which he is arraigned; and the* general rule is not varied where the defense is insanity. Taylor v. United States, 7 App. D. C. 37; 23 W. L. R. 433. In criminal cases, and especially in cases of rape and of abuse of fe- male children, the principle of the res gestce is extended beyond the limits that obtain generally in civif cases ; and statements of a young child of the particulars of an outrage committed upon her, made to her grand- mother at a time during the same day when the condition of the child showed that the outrage had been recently committed and testified to by the grandmother, are admissible in a prosecution for rape. Snowden v. United States, 3 App. D. C. 89 ; 32 W. L. R. 74. In a prosecution for rape, a statement made by the prosecuting wit- 410 Evidh;nCe;. ness to a physician, more than four weeks after the crime, held too re- mote to be admissible. Lylcs v. United States, 20 App. D. C. 559; 31 W. L. R. 67. IV. Confessions. Confessions obtained by adjurations to speak the truth or by artifice and fraud, are competent evidence. Hardy v. United States, 3 App. D. C. 35; 23 W. L. R. 326. Whether a confession shall be permitted to go to the jury in a criminal case is largely within the discretion of the trial court. Trovers v. United States, 6 App. D. C. 450; 23 W. L. R. 469. Where on the trial of an express messenger for the larceny of an ex- press package containing $1,000, the manager of the company testified that he had visited the defendant while the latter was in jail charged with assaulting with intent to murder a person who had recognized him in an interview in the office of the manager as the party for whom he had made a seal which figured in the theft, and given him to understand he beheved him guilty and asked him where the money was, and that defendant said he had only $700 left, but witness denied testifying in the police court that he had told defendant in the conversation referred to that the best course for him to pursue was to confess, though it ap- peared from the report of the stenographer in the police court that he had so testified, it was held that the alleged confession was admissible in evi- dence, but that the jury should have been instructed, in determining whether it was voluntary, to consider the relations of superior and sub- ordinate employee of the same corporation existing for many years be- tween witness and defendant, the conduct of witness in attempting to force a confession on the morning of the same day, the incarceration of defendant in jail on the additional charge of assault with intent to mur- der, the number and purpose of the visits of witness and his conversa- tions with defendant, and also to consider whether they would accept witness' later statement of the conversation or that recorded by the stenographer as made immediately after the occurrence; and that any doubt in their minds as to the voluntariness of the confession must be determined in favor of defendant. Davis v. United States, 18 App. D. C. 468; 29 W. L. R. 574. As to admission of confession. See JVest v. United States, 20 App. D. C. 342; 30 W. L. R. 582. V. Expert and Opinion. The dangerous or safe condition of a sidewalk is not the subject of expert testimony. Dis. of Col. v. Hallci; 4 App. D. C. 405; 22 W. L. R. 761. The question whether a charge for storage of railroad ties on vacant land is reasonable is not the subject of expert testimony, and one having no personal knowledge of the prices paid for such storage is not compe- tent to prove the reasonableness of the charge. Lanshurgh v. Wimsatt, 7 App. D. C. 271; 23 W. L. R. 815. The question of competency to testify as to any matter of opinion is Evidench;. 411 a preliminary one for the trial judge. Hamilton v.- United States, 26 App. D. C. 283; 34 W. L. R. 558. When a witness is called as an expert the question of his competency or of his possession of the requisite qualifications is a prehminary one for the trial court whose decision thereon is conclusive, unless clearly shown to have been founded in error of law or fact. Raub v. Carpenter, 17 App. D. C. 505; 29 W. L. R. 122. The question as to how much knowledge a witness must possess of a certain science or art in order that his opinion shall be competent evi- dence, is a matter largely in the discretion of the trial court, and its ruling will be disturbed only when clearly erroneous. Bradley v. Dis. of Col., 20 App. D. C. 169; 30 W. L. R. 455. In an action to recover for injuries caused by a defective car coupling, questions asked of witnesses for plaintiff as to wherein the coupling was unsafe and wherein it differed from other couplings used, are not ob- jectionable as calling for expert testimony. Balto. & Pot. R. R. Co. v. Elliott, 9 App. D. C. 341 ; 24 W. L. R. 760. Testimony of experts to prove a disputed handwriting is competent when based upon a comparison, made before the jury, .of disputed and admitted writings, although they have never seen the party write. Key- ser V. Pickrell, 4 App. D. C. 198 ; 22 W. L. R. 639. The opinion of a witness as to the genuineness of the handwriting found in a paper the validity of which is the subject of inquiry, based in part upon the knowledge of the witness of the character and style of composition and the legal and literary attainments of the individual whose handwriting it purports to be is not competent to go to the jury upon that question, and its admission constitutes reversible error, Throck- morton V. Holt, 180 U. S. 552; 29 W. L. R. 221. In a prosecution for violation of the act of Feb. 2, 1899, known as the Smoke Law, opinions of witnesses as to whether the smoke emitted was dangerous to health, life or property, or constituted a public nuisance, are inadmissible. Moses v. United States, 16 App. D. C. 428 ; 28 W. L. R. 578. Where a witness, a trained nurse, on being asked whether the injured valves in the blood vessels of her patient were the result of internal disease, replied, "Well, the blood vessels being injured, the blood would settle if the circulation was interfered with ; she was a healthy woman naturally; she was not diseased in any way,'' the testimony is not ob- jectionable on the ground that the witness was not shown to be an ex- pert, since any person of ordinary intelligence can testify to that extent. Metropolitan R. R. Co. v. Martin, 15 App. D. C. 552 ; 38 W, L. R. 83. In the examination of non-expert witnesses as to mental capacity, in the trial of issues as to a will, the better rule is not to ask if testator was competent to make a will or to execute a valid deed or contract, but to confine the question to the inquiry as to the testator's mental capacity generally, leaving the witness to express his opinion in his own language. In re Will of Griffith, 31 W. L. R. 15. A medical witness, whose competency as an expert is unquestioned, may give his opinion as to the sanity of an accused at the time of the homicide, based upon a full personal examination of the accused made 412 Evidence. two months and eight days thereafter. Shaffer v. United States, 24 App. D. C. 417; 33 W. L. R. 4. A charge by the trial court to the jury, in effect that no weight was to be given to opinions of lay witnesses or non-experts on the question of insanity unless based upon facts testified before them, and unless the jury entertain the same opinion on the facts proven before them, held proper, when read in connection with other parts of the charge in ref- erence to the question of insanity. Ih. The opinion of a non-expert witness on the question of sanity is ad- missible only where the witness has had adequate opportunity to ob- serve the conduct or appearance of the party, and whose judgment is based upon such observation. Taylor v. United States, 7 App. D. C. 27; 23 W. L. R. 433. A person of ordinary intelligence, not an expert, is competent to testify as to the physical condition of another before and after an accident. Dis. of Col. V. Boiling, 4 App. D. C. 397; 22 W. L. R. 753; Dis. of Col. v. Haller, 4 App. D. C. 405 ; 22 W. L. R. 761. It is not improper to exclude the testimony of an expert accountant as to the interest to which a plaintiff is entitled. Clements v. Muters- baugh, 27 App. D. C. 165 ; 34 W. L. R. 373. The exclusion of the opinion of a witness on the ground that he was not qualified as an expert, and also on the ground that the testimony should have been offered in chief and not in rebuttal, is a matter largely in the discretion of the trial court, reversible only for palpable error. Right V. Metropolitan R. R. Co., 21 App. D. C. 494; 31 W. L. R. 302. In an action for wrongful death expert testimony offered by defendant that the death was caused by a pre-existing disease and not by injuries received through the commission of the wrongful act, is new matter which plaintiff is entitled to rebut. Guenther v. Metropolitan R. R. Co., 23 App. D. C. 493; 32 W. L. R. 422. A statement by plaintiff in an action for personal injuries that an ail- ment of the spine was the result of her injuries, held to be not in the nature of an opinion, but an incidental statement of fact and admissible. Hubbard v. Perlie, 25 App. D. C. 477 ; 33 W. L. R. 482. An objection to a question propounded to a witness in a will contest, as to whether he had formed an opinion, from all that he knew about the testator, as to what his condition of mind was, held properly sustained where no facts had been testified to by the witness that could form the basis of such an opinion. Raub v. Carpenter, 17 App. D. C. 505; 29 W. L. R. 122. A medical witness who, while having attended an autopsy of testator's brain, states that he has been practicing medicine nine months; that while studying in hospitals he had seen about 250 cases of brain surgery, none of which related to diseases of the brain; had seen no operations to determine the mental capacity of a man having a brain such as that dis- closed by the autopsy, and that there was nothing about such as he had seen that would throw any light on the question of testator's mental con- dition, held properly excluded from testifying as an expert as to the probable mental condition of the testator at the time of the execution Evidence. 413 of the will and codicil, twenty-nine and thirteen months, respectively, previous to the time of the autopsy. lb. The value of the opinion of a non-expert witness depends upon the facts he has observed, and he must first state these facts before being allowed to give his opinion. In re Will of Griffith, 31 W. L. R. 15. As to qualification as expert witness of one disclaiming to be such. See Horton v. United States, 15 App. D. C. 310 ; 27 W. L. R. 706. Any man of ordinary intelligence who sees a moving car or a moving vehicle of any kind is competent in law to form and express an opinion as to its speed, the value of the evidence being for the jury. Metropol- itan R. R. Co. V. Blick, 22 App. D. C. 194; 31 W. L. R. 457. As to admissibility of opinion of lay witness in a will contest as to the mental capacity of testator. See Turner v. American Sec. & T. Co., 29 App. D. C. 460; 35 W. L. R. 302. The exclusion of the opinion of a witness as to the mental condition of an accused person is not error where no facts or circumstances were stated or offered to be proved by the witness upon which such opinion was found other than the fact that he had years ago received a severe blow on the back of the head which had rendered him unconscious for several hours. Horton v. United States, 15 App. D. C. 310; 27 W. L. R. 706. The latitude to be allowed in the cross-examination of an expert called to testify on the question of the insanity of an accused person, for the purpose of testing his knowledge of the subject, is within the sound dis- cretion of the court, the exercise of which will not be reviewed except in case of abuse. lb. Hypothetical questions addressed to an expert must be fairly framed with reference to the facts that have been offered and relied on in the evidence, and the hypothesis must be clearly and distinctly presented so that there may be no misunderstanding in the mind of the witness and no confusion of the minds of the jury. Such questions may be framed either upon all the facts in the case, or any part of the facts assumed to be true which is sufficient in itself. lb. The scope and limitation of hypothetical questions depending largely upon the special circumstances of each case, is in a very large degree in the discretion of the trial court, the exercise of which will not be dis- turbed except in case of manifest abuse. lb. Experts may be required on cross-examination to express opinions upon hypotheses broader or more or. less extensive than actual facts in proof; the rule being that experts may be cross-examined on purely ab- stract questions, assuming facts and theories not based upon the special evidence of the particular case. Snell v. United States, 16 App. D. C. 501; 28 W. L. R. 518. In an action against a railroad company for damages resulting from its failure to operate over a right of way granted by the owner of the land in consideration of benefits to accrue in the use and disposition of the remainder thereof, it is proper, in the absence of actual sales of the property, to ascertain the value of such land with and without the rail- road upon it, by the opinions and estimates of persons conversant there- with, notwithstanding that such opinions and estimates are in their nature 414 Evidence. to a certain extent speculative. Bckington & S. H. Ry. Co. v. McDevitt, 18 App. D. C. 497; 29 W. L. R. 459. VI. Hearsay. Testimony by the wife of a testator that an agreement between herself and husband relative to property rights had been executed by her because she had been advised by physicians and others that he was the victim of a mania and must not be opposed and in the belief that he was mentally incapable of making a deed, is hearsay and not admissible. Turner v. American Sec. & T. Co., 29 App. D. C. 460; 35 W. L. R. 303. In an action of ejectment, declarations of certain deceased children of plaintiff's ancestor, not having any relation to the question of pedigree, held hearsay and inadmissible for that reason. Welch v. Lynch, 35 W. L. R. 398. In a prosecution vmder § 5480 Rev. Stat., a witness for the prosecu- tion was asked if she knew anything about large quantities of mail car- ried to South Carolina to be there mailed, and replied that she had been told by some member of the defendant's famity that he had done so to help his mother's postoffice, held that both question and answer were in- admissible, the answer as being hearsay and the question calling for proof of an offense committed in another jurisdiction. Bass v. United States, 20 App. D. C. 232; 30 W. L. R. 546. When the entry of the name of a complainant or private prosecutor is made in a police complaint book upon the statement of a third person, when he is not present or shown to have confirmed or ratified it, it is no more admissible against him than other hearsay would ordinarily be. Prigg V. Lansburgh, 5 App. D. C. 30 ; 22 W. L. R. 825. Witnesses as to the adequacy of the purchase-price of real estate must testify from their personal knowledge of the property and not from the representations of others. Godfrey v. Button, 27 W. L. R. 50. VII. Confidential Communications and Evidence by Husband and Wife. In a will contest between those of a class involving an issue of mental capacity, a sole devisee and legatee named as executrix is the "legal representative'' of the deceased, for the purpose of exercising the privi- lege of disclosure under the provisions of § 1073, Code D. C. In re Es- tate of Gault, 32 W. L. R. 726. As to admissibility of evidence by wife of defendant in a prosecution for the sale of liquors on Sunday. See Trometer v. Dis. of Col., 24 App. D. C. 242; 32 W. L. R. 763. As to competency of wife as a witness for her husband. See Mallery V. Frye, 21 App. D. C. 105; 31 W. L. R. 63. VIII. Parol. The rule excluding parol evidence to contradict or vary a written in- strument, has reference to the language vised by the parties; and does not forbid an inquiry into the object of the parties in executing and receiving the instrument. Tobriner v. White, 19 App. D. C- 163; 29 W- L, R. 838, Evidence;. 415 Parol evidence is not admissible to show that a deed was delivered to the grantee under an agreement between the parties that it should not take effect until the doing of certain things by the grantee within a speci- fied time. Newman v. Baker, 10 App. D. C. 187 ; 25 W. 1. R. 170. Parol evidence is admissible to explain the making of an affidavit in support of an attachment. Nat. Wall Paper Co. v. Haller, 24 W. L. R. 650. Oral evidence is admissible to remove a latent ambiguity. Okie v. Person, 23 App. D. C. 170; 32 W. L. R. 103. As to admissibility of parol evidence to explain a written agreement. See Bailey v. Dis. of Col., 9 App. D. C. 360 ; 24 W. L. R. 745. As to admissibility of parol extrinsic evidence to explain a latent am- biguity in a written contract. See Harten v. LoMer, 29 App. D. C. 490; 35 W. L. R. 386. In the absence of fraud, accident or mistake, the rule is the same in equity as at law, that parol evidence of an oral agreement cannot be per- mitted to vary, qualify or contradict, add to or subtract from, the abso- lute terms of a written contract. Hutchins v. Langley, 27 App. D. C. 234; 34 W. L. R. 486. In an action to recover damages for breach of a covenant by a pai'ty to an exchange of lands, whereby he agreed to sell incumbered prop- erties conveyed by him for not less than a certain sum, oral and ex- trinsic evidence is not admissible to show that such covenant was a guarantee of the worth of the property over all incumbrances ; but its admission is not reversible error, since it only tends to prove what the contract should be construed to prove. Hartman v. Ruby, 16 App. D. C. 45; 28 W. L. R. 155. In such a suit evidence of the values of the properties conveyed by the respective parties to the exchange is admissible to prove the amount of the damages sustained by plaintiff ; as also are deeds of the farm property subsequently made by defendant and others deriving title from him to show his inability to submit to a rescission of the contract. lb. In criminal cases parol evidence of the contents of a written instrument in the possession of the accused, is admissible without notice to him to produce the instrument. O'Brien v. United States, 27 App. D. C. 263; 34 W. L. R. 546. Parol evidence will not be allowed to contradict the terms of a deed, except when it is impeached for fraud. McCartney v. Fletcher, 11 App. D. C. 1; 25 W. L. R. 327. The true consideration for a deed may be shown by parol. Droop v. Ridenour, 11 App. D. C. 224; 25 W. L. R. 481. Parol evidence is admissible to show that a contract was finally exe- cuted and delivered at a date subsequent to that shown on its face. Dis. of Col. V. Camden Iron Works, 181 U. S. 453. Parol evidence is admissible in aid of written evidence, to establish a particular document or to apply it to its proper subject matter; to ex- plain it, or to rebut some presumption affecting it. Whelan v. McCul- lough, 4 App. D. C. 58; 22 W. L. R. 636. Parol evidence of a contemporaneous agreement that an indorsement 4i6 Evidence. of a promissory note was without recourse is inadmissible. Randle v. Davis Coal & Coke Co., 15 App. D. C. 357, 27 W. L. R. 773. One signing a note as maker cannot, in the absence of fraud, show by parol evidence that he intended to sign as indorser merely. Metzerott v. Ward, 10 App. D. C. 514; 25 W. L. R. 296. Where there is no fraud or ambiguity requiring explanation, parol evi- dence cannot be introduced to change, vary, qualify or contradict the legal import of a bill or note. Metzerott v. Ward, 10 App. D. C. 514; 25 W. L. R. 296. In the absence of any allegation, in an action on a bond, that an al- leged contemporaneous agreement between the principals and obligees was to be incorporated into the bond or referred to therein as creating a dependence of one upon the other, and that it was omitted by mistake, parol evidence is not admissible to establish such agreement and breach thereof so as to discharge sureties. McGuire v. Gerstley, 26 App. D. C. 193; 33 W. L. R. 754. A new promise, with the pre-existing debt for its consideration, con- stitutes a new cause of action upon which suit may be maintained; and as such cause of action could be created by parol, it must be provable by parol, whatever changes may thereafter be made in the rules of evi- dence. Shelley v. Wescott, 33 App. D. C. 135 ; 32 W. L. R. 68. Where several parties employ an attorney and no fully executed con- tract in writing binding on all the parties is made, written or oral state- ments of the parties, made at the time, to induce others to enter into it, are admissible in a suit by the attorney against one of his clients to recover compensation for his services. Burke v. Cloughton, 6 App. D. C. 350; 23 W. L. R. 393. The resignation of a trustee of a corporation may be proved by parol, where the documentary evidence thereof is lost or is out of the jurisdic- tion and difficult if not impossible to trace. Jackson v. Clifford, 5 App. D. C. 312; 23 W. L. R. 134. Parol evidence is not admissible to establish an exception or reserva- tion of fixtures on premises from the operation of a deed of assignment of a leasehold thereof. Touison v. Smith, 13 App. D. C. 48 ; 26 W. L. R- 393. Express trusts of real estate cannot be proved by parol, but must be manifested or proved by some writing signed by the party to be charged. McCartney v. Fletcher, 11 App. D. C. 1 ; 25 W. L. R. 402. As to admissibility of parol evidence to establish a resulting trust. See Cooksey V. Bryan, 2 App. D. C. 557; 22 W. L. R. 263. Oral testimony is admissible to prove an agreement which is only in part in writing. Bailey v. Dis. of Col, 9 App. D. C. 360; 24 W. L. R- 743. Proof of an oral agreement, collateral to and distinct from a contract of exchange of lands, whereby one of the parties agrees in consideration of the transfer to him of certain other lands to assume and pay off an incumbrance on one of the properties exchanged, may be given m an action by the party paying off the incumbrance to recover back the amount paid, the title to such other lands proving false and fictitious, without violating the rule excluding parol evidence to add to or vary the terms Evidence. 417 of a written instrument. Main v. Aukam, 12 App. D. C. 375; 26 W. L. R. 339. As to admissibility of parol evidence to show that tenant signed lease on condition. See Donaldson v. JJhf elder, 21 App. D. C. 489; 31 W. L. R. 428. IX. Pleadings as. Where a defendant in his sworn answer declines to avail himself of the waiver in the bill that the answer be under oath, such answer is not evidence in the defendant's favor unless the cause be set down on bill and answer only. Baker v.-Cummings, 4 App. D. C. 230; 22 W. L. R. 681. An answer in equity which is not responsive to the bill and which sets up new matter is not evidence for defendant. Marmion v. McClel- land, 11 App. D. C. 467; 25 W. L. R. 790. Allegations in an answer not directly responsive to the bill, and amounting to a defense in the nature of confession and avoidance, are not evidence, and must be proved when put in issue. Dexter v. Gordon, 11 App. D. C. 60; 25 W. L. R. 421. A bill of exceptions containing the testimony of a witness since de- ceased is not admissible on a subsequent trial to prove the testimony of such witness, where it does not purport to be an agreed statement of all the testimony of such witness; but it may bemused for the purpose of refreshing the memory of a living witness as to such testimony. Ander- son V. Reid, 10 App. D. C. 426; 25 W. L. R. 174. Use and weight as evidence of answer under oath, though not required to be under oath nor the oath waived by the bill. Dezvey Hotel Co. v. U. S. Blec. L. Co., 17 App. D. C. 356; 29 W. L. R. 71. Answer in equity as evidence. See McCartney v. Fletcher, 10 App. D. C. 572; 25 W. L. R. 311. X. Documentary. Documents, otherwise irrelevant, cannot be admitted in evidence for the purpose of comparison with disputed writings. Keyser v. Pickrell, 4 App. D. C. 198; 33 W. L. R. 639. Certified copies of a decree for divorce and alimony and of a will, oflfered merely as corroborative of the testimony of a witness, though not formally authenticated, as required by the Act of Congress of 1790, are admissible in evidence for such purpose under Act of Maryland of 1785, Ch. 46, §§ 1 and 3, in force in this District. Droop v. Ridenour, 11 App. D. C. 224; 25 W. L. R. 482. A certified copy of a decree for divorce and alimony, oflfered not as an estoppel but by way of explanation and corroboration, is admissible for such purpose although the whole record, including pleadings and depositions, is not offered, but merely the decree reciting the proceedings upon which it is based. lb. The record of a judgment, against one from whom the purchaser at a sale in fraud of creditors testified he obtained part of the purchase money, which contains the testimony of the alleged lender that he was practically penniless at the time of the alleged loan, is admissible only 41 8 Evidence. on the cross-examination of such lender, called at a witness by the al- leged fraudulent vendee. Morunura v. Samaha, 25 App. D. C. 189; 33 W. L. R. 258. Where a cause of disqualification of his right to testify as a living wit- ness has supervened without any fault or agency on his part, the testi- mony given by a party on a former trial, may be read in evidence at a subsequent trial, although he be still living. Bowie v. Hume, 13 App. D. C. 286; 26 W. L. R. 690. As to admissibility of mutilated document. See Waring v. United States Fidelity, Etc. Co., 24 App. D. C. 119 ; 32 W. L. R. 394. A deed more than 30 years old is an ancient document and proves it- self. Ford V. Ford, 27 App. D. C. 401 ; 34 W. L. R. 435. Whenever a writing or document sought to be proved by one party to a suit is shown to have been last in the possession of the opposite party, secondary evidence of its contents cannot be given without a preliminary notice to produce the original. Main v. Aukam, 4 App. D. C. 51; 22 W. L. R. 633. The necessity for such notice is not dispensed with by subsequent testi- mony by the defendant in whose possession the document presumably was, that she had handed it to her co-defendant and presumed that it had been delivered to the plaintiff, especially in the absence of proof to show that neither party had made any search for it. lb. Where an original paper was delivered by plaintiff to defendant's agent, who made a partial copy and testified that he left the original at a hotel to be returned to plaintiff, and plaintiff denied receiving it and failed to produce it on notice. Held, that before the copy could be ad- mitted for the purpose of contradicting the plaintiff's claim, it was in- cumbent on defendant to show that inquiry and search for the original had been made of the persons with whom or at the place where it was stated to have been left. Guilford Granite Co. v. Harrison Granite Co., 23 App. D. C. 1; 31 W. L. R. 759. Where a disbursing officer has procured a certificate showing that he is not indebted to the Government, by means of forged vouchers, a re- statement of his accounts disallowing the credits is admissible against his sureties, although made after the resignation of such disbursing of- ficer. Moses V. United States, 166. U. S. 571. Certificates by the accounting officers of the Treasury Department, showing that a disbursing officer is not indebted to the Government, are not conclusive upon the Government where it appears that such officer procured them by means of forged vouchers. Moses v. United States, 166 U. S. 571. The originals of departmental records held admissible in evidence under § 889, Rev. Stat. Lorens v. United States, 24 App. D. C. 337; 32 W. L. R. 822. In a prosecution for embezzlement by a collector from his employer, it appearing that it was such collector's duty to enter in a "credit book" the amount of his collections and that the employer's bookkeeper copied such entries into a ledger, it was not reversible error to permit the book- keeper to testify that no entry of payments testified to by several wit- nesses as having been niade to the collector, appeared on the ledger, where Evidence. 419 there were no such entries appearing in the "credit book" which had been admitted in evidence. O'Brien v. United Stales, 27 App. D. C. 363; 34 W. 1,. R. 546. As to admissibility in evidence in criminal prosecution of pencil memo- randa made by a witness in a ledger kept by him. See O'Brien v. United States, 37 App. D. C. 363; 34 W. L. R. 546. In an action of trespass to recover for injuries to goods unlawfully removed from premises, where such goods on their return were sold at auction, entries in the bopk of the auctioneer, produced by one who did not make such entries and who had no personal knowledge of them, were properly excluded as evidence of the amount received at the sale, where such witness was permitted to state the amount for which the auctioneer accounted to plaintiff. Keroes v. Weaver, 37 App. D. C. 384 ; 34 W. L. R. 479! Certified copies of entries in the books of a state sanitarium, largely based upon report and mere hearsay, are not admissible in a murder case for the purpose of showing the mental condition, etc., of relatives of accused ; it not appearing by whom such entries were made or that they were required by law. Snell v. United States, 16 App. D. C. 501 ; 28 W. L. R. 518. An unprobated will made subsequent to the act of 1898, providing for the probate of wills relating to real property, is not admissible, as a muniment of title. McGowan v. Elroy, 28 App. D. C. 188; 34 W. L. R. 782. In an action at law by the United States on the bond of a disbursing officer, a purported transcript from the Treasury Department, contain- ing a copy of the bond, statements of account and other papers, were offered in evidence and ruled out by the court. The papers contained in the transcript were then offered severally. They were not certified by the Register of the Treasury nor authenticated by the seal of the Depart- ment. Held, that such papers were not admissible under either § 886 or 882, Rev. Stat. Ewing v. United States, 3 App. D. C. 353; 33 W. L. R. 367. Documents offered in evidence are no longer, for purposes of the trial, in the keeping of the party offering them, and should be placed in the custody of the clerk of court, especially when either party demands that it be done. Bass v. United States, 30 App. D. C. 333 ; 80 W. L. R. 546. XI. Leading Questions. Allowing a witness to answer a leading question is discretionary with the trial court and is not reversible error. Holtsman v. Douglas, 5 App. D. C. 397; 23 W. L. R. 146; Kehan v. Wash. Ry. & El. Co., 38 App. D. C. 108; 34 W. L. R. 451. The allowance of a leading question will be regarded as matter of sub- stantial error only where the appellate court can see that a witness has been led, by the form of the question, to make an answer prejudicial to the objecting party. Shaffer v. United States, 34 App. D. C. 417; 33 W. L. R. 4. A question propounded to a witness on the trial of an action of eject- ment, "Did W. F. state to you that he claimed to own the ground. 420 Evidence. including the lots in controversy" was properly excluded as leading. Reeves v. Low, 8 App. D. C. 105 ; 24 W. L. R. 113. XII. Objections to Admissibility. The specific grounds of objection to the introduction of evidence should be stated on making the objection. Deforest v. United States, 11 App. D. C. 458; 26 W. L. R. 346. An objection to evidence must point out some definite and specific de- fect in its character. An objection on the ground that it is irrelevant, incompetent and immaterial, is too general, and the specification of the real grounds comes too late when made for the first time in an appellate court. Wash. Gas-Light Co. v. Poore, 3 App. D. C. 127; 22 W. L. R. 249. Where an objection to evidence is general and it is overruled and the evidence received, the ruling will not be held erront;oas unless there be grounds which could not have been obviated if specified or unless the evidence in its essential nature be incompetent. lb. As to unavailability of objection to admissibility raised for the first time on appeal. See Chesapeake & Ohio Ry. Co. v. Howard, 14 App. D. C. 262; 27 W. L. R. 146. XIII. Cure of Error in Admission and Exclusion. Error in the exclusion of evidence is cured where the party offering it subsequently testifies to the facts sought to be elicited. Crawford v. United States, 35 W. L. R. 478; Lyles v. United States, 20 App. D. C. 559; 31 W. L. R. 67. Cure of error in admission of evidence in prosecution for larceny, by confession of accused showing guilt. Ryan v. United States, 26 App. D. C. 74; 33 W. L. R. 516. Error of trial court in overruling objection to question as leading not considered prejudicial where the fact sought to be elicited by the ques- tion is brought out in subsequent examination of the witness. Shaffer v. United States, 24 App. D. C. 417; 33 W. L. R. 4. The exclusion of evidence cannot be assigned as error when the record fails to show that any specific offer of proof was made. Deforest v. United States, 11 App. D. C. 458; 26 W. L. R. 346. The admission of immaterial evidence is not reversible error where the charge to the jury is full and clear and furnishes a correct guide to the correct finding by the jury. Dis. of Col. v. Wilcox, 4 App. D. C. 90; 22 W. L. R. 623. An order overruling a general objection to evidence will not be held erroneous unless there be some grounds which could not have been obviated if specified or unless the evidence is essentially incompetent. Gilbert v. Pay, 4 App. D. C. 38 ; 22 W. L. R. 473. Error in permitting a witness to be cross-examined upon the contents of a letter and admitting parts of it in evidence, is cured by an instruc- tion that neither the letter nor the use of it is to be taken as evidence of the truth of any of its statements, or allowed be used for the purpose of cross examination. Turner v. American Sec. & T. Co., 29 App. D. C. 460 ; 35 W. L. R. 302. Error in the admission of evidence will not require reversal of a judg- EviDENCil. 4:21 ment where no injury could reasonably have resulted from it. Barbour V. Moore, 10 App. D. C. 30; 25 W. L. R. 55. Objectionable and inadmissible testimony which does not mislead the jury will not be permitted to disturb a verdict otherwise regular. Burke V. Claughton, 12 App. D. C. 182; 26 W. L. R. 231. Error in admitting evidence in a libel suit, as to the wealth of the de- fendant, is not cured by an instruction to the jury that punitive damages cannot be recovered. Gas Light Co. v. Lansden, 172 U. S. 534, reversing 9 App. D. C. 508. Where in the course of a lengthy trial, opinion evidence as to the genuineness of handwriting based on knowledge of the witness of char- acter and style of composition and legal and literary attainments of the alleged writer, when first offered was excluded, but afterwards admitted on behalf of the caveators, and Hke testimony offered by the caveatees was rejected as not being competent in rebuttal, and subsequently the court, at the request of the caveators, instructed the jury to disregard any opinion expressed by witnesses for caveators as to whether the tes- tator wrote the paper in question so far as based upon anything but the handwriting of the paper ; that so far as such opinions were based in whole or in part upon the composition of the paper or expressions con- tained in it, or the legal or literary attainments of the testator they were withdrawn from consideration by the jury, but all other evidence admit- ted bearing upon the legal attainments and literary style was competent for consideration by them with other evidence bearing on the genuineness of the paper, held that the error in the admission of such evidence was not cured by the attempted withdrawal. Throckmorton v. Holt, 180 U. S. 552; 29 W. L. R. 221. As to cure of error in admitting documents on evidence. See Lorenz V. United States, 24 App. D. C. 337; 32 W. L. R. 822. XIV. Depositions. Whether the certificates of a commissioner before whom a deposition is taken to the effect that he has taken the oath required by law, is suf- ficient evidence of the fact, qucsre; but the better practice is to give the name of the officer before whom the oath is taken, so that the fact might be proved if necessary. Massachusetts Mut. Ace. Assn. v. Dudley, 15 App. D. C. 472; 28 W. L. R. 24. An objection to the admission of an interrogatory and answer in a deposition, based upon a want of opportunity to cross-examine the witness, is properly overruled, in the absence of a showing of surprise or an application seasonably made to cross-examine. Keely v. Moore, 22 App. D. C. 9 ; 31 W. L. R. 339. The return of a commission under the seal of the United States con- sulate is improper when the consul is himself a party to the suit and the person whose deposition has been taken. Ih. A deputy consul, by reason of his confidential relations with the con- sul, is disqualified from acting as a commissioner under a commission issued under the Act of Maryland of 1773, ch. 7, § 7, in a case to which the consul is a party and the person whose deposition is to be taken; and 422 EviDfiNGE. a deposition taken by him under such circumstances should be suppressed lb. As to admissibility in actions at law, of depositions of non-resident witnesses. See Anacostia R. R. Co. v. Klein, 8 App. D. C. 75 ; 24 W. L. R. 117. Under § 1058 of the Code, objections to a deposition as a whole for want of proper notice — the objectants having been represented by counsel when the depositions were taken and having cross-examined the witnesses — and for other informalities, made for the first time when the depositions are offered in evidence, comes too late. Welch v. Lynch, 35 W. L. R. 398. XV. Impeachment of Witnesses. The credit of a witness may be impeached by proof that he has made statements out of court inconsistent with the testimony given in court; but it is a general rule that a witness cannot be cross-examined as to any fact which, if admitted, would be wholly collateral, and irrele- vant to the matter in issue, for the purpose of contradicting him by other evidence, and in this manner to discredit his testimony. If the witness answers such an irrelevant question without objection, evidence cannot afterwards be admitted to contradict his testimony on the collateral matter. Crawford v. United States, 35 W. L. R. 478. Where a witness called by plaintiff to testify to a fact resting solely within his knowledge, testifies adversely to plaintiff's interest, the witness having no adverse interest, and not being one whom the law required him to call, and there being no evidence of bad faith on his part, the trial court properly refused to allow plaintiff, claiming surprise and a desire to refresh the memory of the witness, to ask him if he did not make a different statement at a former trial. Weaver v. Balto. & Ohio R. R. Co., 3 App. D. C. 436 ; 23 W. L. R. 393. While a plaintiff calling as witnesses the defendants to the suit may show by other witnesses that defendants were mistaken in their testi- mony, he cannot impeach their competency and credibility. Merrillat V. Hooker, 36 W. L. R. 40. Where, in an action for injuries caused by the fall of a passenger elevator, the plaintiff was allowed, over the objection of defendant, on the cross-examination of two witnesses offered as experts by the defendant, to show that they were employed by a company which insured the defend- ant against loss, held, that the error, if any, was waived by defendant. Holtzman v. Capital Construction Co., 33 W. L. R. 531. While it may be permissible, on cross-examination of expert witnesses called by defendant, for the purpose of showing bias to prove that they are in the employ of an insurance company which insured the defendant company against accidents to its elevator, it is error to permit evidence as to the nature of that insurance and tending to show that it was not against breakage of the elevator, but against accidents to persons riding therein. Capital Construction Co. v. Holtzman, 27 App. D. C. 125; 34 W. L. R. 222. As to admissibility of evidence to impeach witness. See Yeager v. United States, 16 App, D. C. 356 ; 28 W. L. R. 554. Evidence. 423 XVI. Order of Proof. The order of proof is discretionary with the trial court. Lansburgh V. Wimsatt, 7 App. D. C. 271; 23 W. L. R. 815; Raub v. Carpenter, 17 App. D. C. 505 ; 29 W. L. R. 122 ; Lorenz v. United States, 24 App. D. C. 337 ; 32 W. L. R. 822 ; Crawford v. United States, 35 W. ly. R. 478. The admission of testimony out of order is within the discretion of the trial court. LeCointe v. United States, 7 App. D. C. 16; 23 W. L. R. 482; Olmstead v. Webb, 5 App. D. C. 38; 23 W. L. R. 169. Evidence offered in rebuttal which should have been offered in chief is properly excluded, especially where the offer is made in such general and indefinite terms as not to enable the court to determine its ma- teriality. Riddle v. Gibson, 35 W. L. R. 143. In cases of doubt, additional evidence offered in rebuttal should be admitted, though it ought to have been given in chief, where it is clear that no improper advantage has been sought by withholding it and no necessary injury would occur to the opposing party by surprise. Of ten- stein V. Bryan, 20 App. D. C. 1 ; 30 W. L. R. 270. Where a plaintiff has introduced evidence to prove the genuineness of a disputed signature and defendant evidence that a peculiarity therein appears only in the proportion of one to four of the signatures of the party, with which witness is familiar, testimony by plaintiff that such pe- culiarity is not an unusual feature of the signature held improper as re- buttal. Throckmorton v. Holt, 12 App. D. C. 552; reversed in 180 U. S. 552; 29 W. L. R. 221. Where in a will contest, a witness called by the caveators expresses the opinion that the signature of one of the witnesses is not genuine, stating on cross-examination, as a reason for his opinion, the presence in the disputed signature of certain peculiarities not found in genuine signatures of said witness, it is competent for the proponents of the will, in rebuttal, to offer evidence to prove that such peculiarities were usually if not habitually found in genuine signatures of said witness, notwith- standing they had been advised by the court, vifhen the case was first with them, that they must offer all their evidence as to the genuineness of the instrument before resting their case; and the admission of such evidence is a matter of strict right. lb. Where in an acion on a policy of insurance, plaintiff to rebut the de- fense of suicide, introduces evidence that insured died of heart disease, and that he had been suffering from such disease for a time antedating that at which he became a member of the insuring association, defendant should be allowed to read to the jury, for the purpose of contradiction, the assured's application for membership, in which he stated that he had no disease which would likely shorten his life. Casey v. National Union, 3 App. D. C. 510 ; 22 W. L. R. 433. As to order of proof. See Robinson v. Parker, 11 App. D. C. 332; 25 W. h. R. 497. XVII. Cross-examination. The scope and manner of the cross-examination of a witness outside of the matter connected with the examination in chief is within the dis- 424 Evidence. cretion of the trial court. Davis v. Coblens, 174 U. S. 719, affirming 12 App. D. C. 51. Ordinarily, anything tending to show interest, bias, or prejudice on the part of a witness may be developed on cross-examination, in order that the jury may correctly weigh the testimony of the witness. Holtz- man v. Capital Construction Co., 33 W. L. R. 531. XVIII. Burden of Proof. The Burden of proof of undue influence in the making of a will is on the party alleging it. Shelley's Will, 34 W. L. R. 801. Upon questions as to mental soundness of a testator, the burden of proof is on the caveators. Leach v. Burr, 188 U. S. 510 ; 31 W. L. R. 148. Where a testatrix devises her estate to her son, and, in the event of her surviving him, to a certain charitable institution, and both mother and son lose their lives in a common disaster, the burden of proving the survivorship of testatrix is on such institution, failing in which it is upon her next of kin as against the personal representative of the son. Paul V. Hulick, 18 App. D. C. 9 ; 29 W. L. R. 171. Burden of proof that messenger company assumes status of insurer of money is on party alleging it. White v. Postal Telegraph & C. Co., 25 App. D. C. 364; 33 W. L. R. 395. As to burden of proof in personal injury cases brought by passengers against carriers. See Kehan v. Washington Ry. & Blec. Co., 28 App. D. C. 108 ; 34 W. L. R. 451. Burden of proving negligence on part of master where servant is in- jured while working with appliances provided for his use. Butler v. Prasee, 25 App. D. C. 392; 33 W. L. R. 387. As to burden of proof to overcome presumption "of negligence. See Kohner v. Traction Co., 22 App. D. C. 181; 31 W. L. R. 442. The burden of proof of absence of neghgence is on the owner or keeper of animals fer. Scanlan v. Snow, 2 App. D. C. 137 ; 22 W. L. R. 62. See Attachment. INTESTACY. As to presumption against partial intestacy. See Young v. Morris Peters Co., 27 App. D. C. 140; 34 W. L. R. 240; McCaffrey v. Manogue, 22 App. D. C. 385; 31 W. L. R. 454; Kennedy v. Alexander, 21 App. D. C. 424; 31 W. L. R. 158; Home v. French, 187 U. S. 401; 31 W. L. R. 30; Reeves v. Low, 8 App. D. C. 105; 24 W. L. R. 113. See Wills. INTOXICATING LIQUORS. I. What are. 11. Right to Sell. III. Licenses to Sell. IV. Sales to Minors. V. Sunday Law. VI. Hotels and Clubs. VII. Restaurants in Capitol. VIII. Prosecution for Violation of Law Regulating Sales. IX. In General. I. What are. A medicinal preparation, used exclusively as such, and not as an in- toxicant, is not an "intoxicating liquor" within the meaning of the act of Congress of Mar. 3, 1893, although it contains a percentage of alcohol and may produce intoxication if taken in sufficient quantities. Mackall v. Dis. of Col., 16 App. D. C. 301 ; 28 W. L R. 351. II. Right to Sell. It is unlawful to sell intoxicating liquors within one mile of the Sol- diers' Home. Dempsey v. Dis. of Col.^ 1 App. D. C. 63 ; 21 W. L. R. 389. The one mile limit prescribed by the act of Feb. 28, 1891, providing that no license for the sale of intoxicating liquors at any place within one mile of the Soldiers' Home property in the District of Columbia shall be granted, is to be measured in a straight line on a level plane from the outside walls of the inclosure. Sheehy v. Johnson, 12 App. D. C. 92; 26 W. L. R. 154. III. Licenses to Sell. The act of Mar. 3, 1893, did not have the effect of revoking licenses granted under the old law. Bush v. Dis. of Col, 1 App. D- C 1; 31 W, L. R. 371, Intoxicating Liquors. 543 Where it appears that an application for a hotel bar-room license is regular in form, and that all the requirements of the law have been satisfied, and it further appears that the applicant has not been convicted of keeping a disorderly place, nor twice convicted during the preceding license year of violating the terms of his license, the duty of the excise board in the premises is a mere ministerial one 'and they are without au- thority to refuse the application for license. GriiKn v. LeCuyler, 36 W. L. R. 103. A petition for mandamus to compel the issuance by the excise board of a bar-room license properly dismissed where the relators claim to be owners of an established hotel, and the answer denies that they had an established hotel, but a cheap lodging house kept and used for immoral purposes. Washington v. Johnson, 12 App. D. C. 545; 26 W. L. R. 419. As to application of act of Congress of July 1, 1902, imposing a license tax on brewers and manufacturers of fermented liquors and their agents. See Beitzel v. District of Col, 21 App. D. C. 49 ; 31 W. L. R. 82. IV. Sales to Minors. To constitute the offense of selling liquor to a minor, under the pro- visions of the act of Congress of Mar. 3, 1893, the party charged must have knowledge himself or by his agent acting for him in selling to the minor, that the party to whom the liquor was sold was at the time a minor under the age of 21 years. LoefHer v. Dis. of Col, 15 App. D. C. 329 ; 28 W. L. R. 6. V. Sunday Law. The opening of a bar-room on Sunday, whether or not any sale is in fact made, is within the prohibition of the act of Mar. 3, 1893. Lehman V. Dis. of Col, 19 App. D. C. 217 ; 30 W. L. R. 87. A person occupied adjoining houses, in one of which he had his bar- room and the other he occupied as a residence. In the basement of the latter was a billiard room, from which communication was had with the bar-room by a flight of steps and door. He entered the bar-room on Sunday morning to extinguish the lights therein and to procure a bottle of beer for his own use, and while therein, two men, who testified they came for the purpose of collecting money due them for vegetables, entered the billiard room. Held insufficient to support a conviction for a viola- tion of the law requiring bar-rooms to be kept closed on Sunday. Tobin V. Dis. of Col, 22 App. D. C. 482 ; 31 W. L. R. 775. The proprietor of a bar-room is not guilty of a violation of the Sunday closing provisions of the act of Mar. 3, 1893, merely by opening and enter- ing the front door of the room in which the bar is located for the pur- pose of access to another part of the premises in which he lived, there being no other means of ingress or egress. Hannen v. Dis. of Col, 13 App. D. C. 265 ; 26 W. L. R. 202. In any event, the question as to the failure of an information for the sale of liquor on Sunday to allege the name of the person to whom the liquor was sold can not be raised by motion in arrest of judgment, for the defect, if any, would be cured by verdict. Trometer v, Dis. of Col. 34 App. D. C. 243; 33 W. L. R. 763, 544 Intoxicating Liquors. to enable defendant to make his defense, he should apply to the court to require the prosecution to furnish him with a bill of particulars. lb. In a prosecution for selling intoxicating liquors on Sunday where the sale was made by the wife of the accused, the presumption is that the wife, in making the sale was the agent of the defendant, and the trial court sitting without a jury was justified in finding defendant guilty, notwithstanding his testimony that she had no authority to make the sale and that it was against his prohibition. lb. It is no defense to a prosecution for a violation of the prohibition of the act of Mar. 3, 1893, against selling liquors on Sunday, that the sales were made by a servant of the defendant in his absence and without his authority. Lehman v. Dis. of Col, 19 App. D. C. 217 ; 30 W. L. R. 87. A conviction in the police court of a party prosecuted for violation of the provisions of the act of Congress of Mar. 3, 1893, requiring places for the sale of intoxicating liquors to be kept closed on Sunday, af- firmed, where it appeared that at an early hour on Sunday morning defendant, with several companions, was in an apartment in rear of the bar-room and separated therefrom by a partition six feet high in which was a swinging door, and that defendant came from said apartment into the bar-room and procured liquors for himself and his companions which he carried into the rear apartment. Sullivan v. Dis. of Col., 20 App. D. C. 29; 30 W. L. R. 453. In a prosecution for keeping open a bar-room on Sunday, evidence of sales within the bar-room is not necessary. lb. An information charging the defendant with keeping his place of busi- ness open and selling liquor therein on Sunday, in violation of the pro- visions of § 6 of the act of Mar. 3, 1893, to regulate the sale of intoxicat- ing liquors in this District, is sufficient without alleging that the defendant did not come within the scope of the proviso of that section concerning keepers of hotels and taverns. Lehman v. Dis. of Col., 19 App. D. C. 317; 30 W. L. R. 87. Where the evidence sustains a charge against a hotel keeper of selling liquors on Sunday, the burden is upon him to prove that the sales were made to bona fide guests of the hotel. See lb. As to admissibility of evidence in prosecution for sale of liquor on Sunday. See Trometer v. Dis. of Col, 24 App. D. C. 242; 32 W. L. R. 763. VI. Hotels and Clubs. The act of Congress of Mar. 3, 1899, relative to the sale or delivery of beer or intoxicating liquors on Sunday, does not apply to keepers of duly licensed hotels having a bar-room license. Dis. of Col. v. Reuter, 15 App. D. C. 237; 27 W. L. R. 510, 498. The act of Congress of Mar. 3, 1899, does not repeal the provision of the act of Mar. 3, 1893, allowing hotels to sell liquors on Sunday to bona fide guests at their meals or in their rooms. lb. The law permitting sales by hotels to bona fide guests does not con- template as such guest one who orders a few crackers or a sandwich, or writes his name on a book in a hotel for the purpose of procurihg liquor. See lb. Intoxicating Liquors. 545 In a prosecution for the sale of liquor on Sunday it is not required that the information shall state the name of the person to whom the liquor was sold, and if the diclosure of the name of such person is necessary The furnishing of intoxicating liquors by a party to his boarders and customers with his meals is a sale thereof within the meaning of the act of Mar. 3, 1893. Lauer v. Dis. of Col, 11 App. D. C. 453 ; 26 W. L. R. 72. Upon the application of a party claiming to be the owner or lessee of an established hotel for a bar-room license, the excise board is charged with the duty of determining, at least prima facie, whether the applicant for a Hcense is, in fact and in good faith, the owner or lessee of a hotel, and whether the house is, in the sense of the law, an established hotel. Washington v. Johnson, 13 App. D. C. 545 ; 26 W. L. R. 419. The excise board, under the act of Mar. 3, 1893, is charged with the duty of making an investigation in such cases ; and its performance of that duty is not subject to review or revision by the courts, except for abuse or excess, or for mistake of the law ; and such investigation on the part of the board is not precluded by the fact that, previously to the application for a bar-room license, the applicant has obtained from the assessor of the District the license required to carry on the hotel busi- ness, lb. A social club which furnishes liquors to its members to be drunk on the premises, the charge therefor being used in replenishing its supplies and paying necessary expenses, and no pecuniary profit being derived by the club or any member therefrom, is a "bar-room" within the mean- ing of the act of Mar. 3, 1893, and liable to the license fee imposed thereby. Army & Navy Club v. Dis. of Col, 8 App. D. C. 544; 24 W. L. R. 331. VII. Restaurants in Capitol. The act of Congress of 1893, ch. 204, regulating the sale of intoxicating liquors within the District of Columbia, is not applicable to the Con- gressional restaurants located and conducted in the Capitol building, under the rules and regulations of Congressional committees, for the use and convenience of members of Congress. Page v. Dis. of Col, 20 App. D. C. 469 ; 30 W. L. R. 758. VIII. Prosecution for Violation of Law Regulating Sales. An information for violation of the act of Congress of Mar. 3, 1893, should be made in the name of the District of Columbia and not of the United States. Dempsey v. Dis. of Col, 1 App. D. C. 63 ; 21 W. L. R. 389. Prosecutions under the act of Mar. 3, 1893, must be on information filed in the police court, which has exclusive jurisdiction in such cases; and the Supreme Court of the District of Columbia has no jurisdiction thereof. Gassenheimer v. Dis. of Col, 6 App. D. C. 108 ; 23 W. L. R. 257. IX. In General. The act of Mar. 3, 1893, is a full and complete regulation of the sub- ject-matter with which it deals and a substitute for all former laws and regulations relating thereto. Gassenheimer v. Dis. of Col., 6 App. D. C. 108; 23 W. L. R. 257. 546 Intoxication — Joinder of Counts in Indictment. As to requiring bill of particulars in prosecution for selling liquor with- out a license. See Lauer v. Dis. of Col, 11 App. D. C. 453; 26 W. L. R. 72. As to interruption of trial for violation of Sunday liquor law, con- stituting ground for exception. See Lehman v. Dis. of Col., 19 App. D. C. 217; 30 W. L. R. 87. That an indebtedness is contracted for the purchase and consumption of intoxicating liquors is not ground for the refusal of aid by a court of equity in enforcing it. Sis v. Boarman, 11 App. D. C. 116; 25 W. L R. 431. INTOXICATION. Voluntary intoxication neither excuses nor palliates crime. Harris v. United States, 8 App. D. C. 20 ; 24 W. L. R. 164 ; Ryan v. United States, 26 App. D. C. 74; 33 W. L. R. 516. A jury in a murder case may not consider the intoxicated condition of defendant. Lanckton v. United States, 18 App. D. C. 348; 29 W. L. R. 494. Immateriality of evidence of intoxication in prosecution for larceny where, after return to consciousness, accused deliberately attempted to convert the stolen goods to his own use. Ryan v. United States, 26 App. D. C. 74; 33 W. L. R. 516. Extent of intoxication constituting defense to prosecution for lar- ceny, lb. Admissibility of evidence as to, in prosecution for larceny. lb. INVENTION. See Accounting; Patents. INVOLUNTARY PAYMENT. As to involuntary payment of taxes. See Dis. of Col. v. Glass, 27 App. D. C. 576; 34 W. L. R. 467. ISSUANCE OF PATENTS. See Patents. JEOPARDY. As to what constitutes within meaning of Constitution. See Nord- linger v. United States, 24 App. D. C. 406 ; 32 W. L. R. 810. See Second Jeopardy. JOINDER OF ACTIONS. The liability of subscribers to stock of a corporation is several and they cannot be joined in an action to recover unpaid parts of their sub- scriptions. People's Nat. Bank v. Saville, 25 App. D. C. 139; 33 W. L. R. 178. See Actions. JOINDER OF COUNTS IN INDICTMENT. As to joinder of counts under §§ 820, 821 of Code. See Posey v. United States, 28 App. D. C. 303 ; 34 W. L R, 565, Joinder of Issue — Joint Tenants. 547 JOINDER OF ISSUE. See Pleading. JOINDER OF OFFENSES. As to joinder of offenses in one indictment. See Benson v. United States, 27 App. D. C. 331; 34 W. L. R. 366. JOINDER OF PARTIES. See Parties. JOINT ADMINISTRATION. See Administration. JOINT INVENTORS. See Patents. JOINT OBLIGATIONS. See Contracts. JOINT OBLIGORS. Judgment by confession against one of two joint contractors in an action against both, does not prevent the recovery of judgment against the other in the same suit. Construing § 827, R. S. D. C. Harris v. Leonhardi, 2 App. D. C. 318 ; 22 W. L. R. 107. JOINT PARTIES. As to effect of declarations by one or more of the parties to a trans- action to bind all. See Main v. Aukam, i App. D. C. 51; 22 W. L. R. 633. JOINT STOCK COMPANIES. Nature of, as partnership. Bradford v. National Ben. Asso., 26 App. D. C. 268; 33 W. L. R. 786. Where the directors of a joint stock company fail to transfer the stock of a member, who has notified them of his withdrawal from the company and directed such transfer, and thereafter such member con- tinues to act as a director of the company with knowledge that his name is used as such, and votes his stock, it is for the jury to determine, in an action seeking to charge him as a partner, whether he had abandoned his intention to transfer his shares, waived his notice of withdrawal and remained liable as a partner. Bradford v. National Ben. Asso., 26 App. D. C. 268; 33 W. L. R. 786. Where in an action against a member of a joint stock company, whereby it is sought to hold him as a partner the defense is that such member had withdrawn from the company and sold his stock prior to the accrual of the cause of action, circumstances, minutes and other writings are admis- sible to show defendant's participation in the affairs of the company as stockholder and director, after he claims to have withdrawn. Bradford V. National Ben. Asso., 26 App. D. C. 268; 33 W. L. R. 786. As to distinction between building and loan associations and ordinary joint stock companies. See Armstrong v. United States B. & L. Ass'n, 15 App. D. C. 1 ; 27 W. L. R. 351. See Partnership; Voluntary Associations. JOINT TENANTS. Possession by one is possession by both, and in the absence of proof 548 Joint Tort Feasors — Judicial Discretion. to the contrary, will be presumed to be on joint account and for joint benefit. Clark v. Harmer, 5 App. D. C. 114; 23 W. L. R. 120. One joint tenant may not sell or bind the interest of his co-tenants with- out express authority. Lipscomb v. Watrous, 3 App. D. C. 1; 22 W. L. R. 189. See Estates. JOINT TORT FEASORS. As to sufficiency of declaration to charge several defendants as joint tort feasors with a joint and several liability. See District of Columbia V. Boiling, 4 App. D. C. 397 ; 32 W. L. R. 753. JUDICIAL DISCRETION. As to appointment of administrators. See Williams v. Williams, 24 App. D. C. 214 ; 33 W. L. R. 132. As to allowance of alimony pendente lite. See Lesh v. Lesh, 21 App. D. C. 475; 31 W. L. R. 288; Tolman v. Tolman, 1 App. D. C. 299; 21 W. L. R. 771. As to alignment of parties. See Overby v. Gordon, 13 App. D. C. 392; 26 W. L. R. 722; Rich v. Lcmmon, 15 App. D. C. 507; 28 W. L. R. 27, As to extending time for settling bill of exceptions. See Raymond v. United States, 26 App. D. C. 250; 34 W. L. R. 562. As to requiring bill of particulars. See Lauer v. Dis. of Col., 11 App. D. C. 453; 26 W. L. R. 72; Bass v. United States, 20 App. D. C. 232; 30 W. L. R. 546; Hyde v. United States, 27 App. D. C. 362; 34 W. L. R. 494; Fields v. United States,, 27 App. D. C. 433; 34 W. L. R. 392; Van- sant V. Lindsley, 2 App. D. C. 421; 22 W. L. R. 162. As to granting special permission to file bill of review where decree has not been performed. Perkins v. Tyrer, 24 App. D. C. 447 ; 33 W. L. R. 54. As to requiring additional bond from executor. See Cropper v. Mc- Lane, 6 App. D. C. 119 ; 23 W. L. R 262 As to granting certiorari See Guy v Dis. of Col, 25 App. D. C. 117; 33 W. L. R. 165. ' As to removal of collector of estate. See Guthrie v. Welch, 24 App. D. C. 562 ; 33 W. L. R. 163. As to confirmation of judicial sale. See Parsons v. Little, 28 App. D. C. 218; 35 W. L. R. 46; Auerbach v. Wolf, 22 App. D. C. 538; 31 W. L R. 716 ; Rozvland v. Munck, 15 App, D. C. 403 ; 27 W. L. R. 740. As to vacation of sale made by marshal under execution. See Hart v. Hines, 10 App. .D. C. 366 ; 25 W. L. R. 217. As to consolidation of cases for trial. Welch v. Lynch, 35 W. L. R- 398 ; Bailey v. Dis. of Col., 9 App. D. C. 360 ; 24 W. L. R. 745. As to granting continuances. See Fields v. United States, 27 App. D. C. 433; 34 W, L. R, 382; Crandall v. Lynch, 20 App. D. C. 73; 30 W. L R. 326; Foertsch v. Germuiller, 9 App. D. C. 351; 24 W. L. R. 794; Brad- shaw V. Stott, 7 App. D. C. 376 ; 23 W. L. R. 830 As to control of counsel at trial See Funk v. United States, 16 App, D. C. 478 ; 28 W. L. R. 486 ; Wash. & G. R. R. Co. v. Dashiell, 7 App. D. C. 507 ; 24 W. L. R. 40. Judicial Discretion. 549 As to award of costs See Eaton v. Brown, 20 App. D. C. 454; 30 W. L. R. 746; Smith v. Olcott, 19 App. D. C. 61; 29 W. L. R. 766; United Security Co. v. Larner, 18 App. D. C. 147; 29 W. L. R. 275; Cassidy v. Roberts, 29 W. L. R. 76. As to amount allowed executor for costs and expenses incurred in un- successfully defending will. See Tuohy v. Hanlon, 18 App. D. C. 225 ; 29 W. L. R. 417. As to allowance of co"unsel fees in cases of attachment and garnish- ment. See Morimura v. Samaha, 25 App. D. C. 189; 33 W. L. R. 258. As to dismissal of appeal from justice of the peace. See Slater v. Willige, 16 App. D. C. 364; 28 W. L. R. 454. As to dismissal or retention of suit' to enjoin infringement of patent and for an accounting on expiration of patent. See Busch v. Jones, 16 App. D. C. 23; 28 W. L. R. 535. As to requiring prosecution to elect on which of several counts of an indictment it will go to trial. See Hyde v. United States, 27 App. D. C. 362 ; 34 W. L. R. 494 ; Lorenz v. United States, 24 App. D. C. 337 ; 32 W. L. R. 822. As to latitude of cross-examination to test credibility of witness. See Davis V. Coblens, 12 App. D. C. 51; 26 W. L. R. 34; Horton v. United States, 15 App. D. C. 310; 27 W. L. R. 706. As to order of proof. See Crawford v. United States, 35 W. L. R. 478 ; Throckmorton v. Holt, 12 App. D. C. 552; 180 U. S. 552; I.ansburgh v. Wimsatt, 7 App. D. C. 271; 23 W. L. R. 815; Lorenz v. United States, 24 App. D. C. 337; 32 W. L. R. 822. As to allowance of leading question. See Holtzman v Douglas, 5 App. D. C. 397; 23 W. L. R. 146; Kehan v. Wash. Ry. & Bl. Co., 28 App. D. C. 108; 34 W. L. R. 451. As to competency of confessions as evidence. See Travers v. United States, 6 App, D. C. 450; 23 W. L. R. 469; Hardy v. United States, 3 App. D. C. 35; 23 W. L. R. 326; Brady v. United States, 1 App. D. C. 246; 21 W. L. R. 665. As to striking out testimony See Thompson v. United States, 36 W. L. R. 98; Crawford v. United States, 35 W. L. R. 478; DePorest v. United States, 11 App. D. C. 458 ; 26 W. L. R. 346. As to admission of testimony out of its order See LeCointe v. United States, 7 App. D. C. 16; 23 W. L. R. 482; Olmstead v. Webb, 5 App. D. C. 38 ; 23 W. L. R. 169. As to admissibility of evidence under issue of undue influence in will contest See Olmstead v. Webb, 5 App. D. C. 38 ; 22 W. L. R. 801. As to introduction of newly-discovered evidence under bill of review. See Osborne v. Davidson Mortgage Co., 8 App. D. C. 481 ; 24 W. L. R. 313. As to scope and limitation of hypothetical questions. See Horton v. United States, 15 App. D. C. 310; 27 W. L. R. 706. As to whether a circumstance offered in evidence is material or rele- vant. See Funk v. United States, 16 App. D. C. 478 ; 28 W. L. R. 486. As to the extent to which cumulative testimony shall be admitted. See Trometer v. Dis. of Col, 24 App. D. C. 242 ; 32 W. L. R. 763. 550 Judicial Discretion. As to examination of jurors on their voir dire. See Howgak v. United States, 7 App. D. C. 317; 24 W. L. R. 518. In disposing of the control of children. See Stickel v. Stickel, 18 App. D. C. 149; 29 W. L. R. 563; Wells v. Wells, 11 App. D. C. 392; 26 W. L. R. 71 ; Seeley v. Seeley, 26 W. L. R. 4 ; Beall v. Bibb, 19 App. D. C. 311 ; 30 W. L. R. 138. As to allowing suit in forma pauperis. See Bx parte Harlow, 3 App. D. C. 203. As to allowing injunction pendente lite. See Standard Oil Co. v. Oeser, 11 App. D. C. 80; 25 W. L. R. 500; Webb v. King, 21 App. D. C. 141; 31 W. L. R. 79. As to form of instruction relative to weight of evidence. See Gassen- heimer v. United States, 26 App. D. C. 432; 34 W. L. R. 80. As to allowance of intervention or suit by foreign receivers. See Barley v. Gittings, 15 App. D. C. 427 ; 27 W. L. R. 802. As to raising question of laches when not relied upon by party. See CrutcMeld v. Hewett, 2 App. D. C. 373 ; 22 W. L. R. 127. As to granting writ of mandamus. See in re Key, 189 U. S. 84. As to granting new trial. See Paolucci v. United States, 36 W. L. R. 2; Keely v. Moore, 22 App. D. C. 9; 31 W. L. R. 339; Columbia Ry Co. v. Cruit, 20 App. D. C. 521; 30 W. L. R. 776; Woods v. Richmond & D. R. R. Co., 1 App. D. C. 165; 21 W. L. R. 635. As to allowing striking out of name of one of the plaintiffs in eject- ment. See Morris v. Wheat, 11 App. D. C. 201 ; 25 W. L. R. 494. As to amendment of pleadings. See Schrot v. Schoenfeld, 23 App. D. D. C. 421; 32 W. L. R. 230; Brainard v. Buck, 16 App. D. C. 595; 28 W. L. R. 585; Tyler v. Messenger Co., 13 App. D. C. 267; 26 W. L. R. 677; Myers v. Davis, 13 App. D. C. 361; 26 W. L. R. 710; Chester v. Morgan, 11 App. D. C. 435; 25 W. L. R. 767; Casey v. National Union, 3 App. D. C. 510; 22 W. L. R. 433; Metropolitan R. R. Co. v. Snashall, 3 App. D. C. 420; 22 W. L. R. 377; German Bvang. Soc. v. Prospect Hill Cemetery, 2 App. D. C. 310; 22 W. L. R. 122. As to allowing defendant in equity to both demur to the bill and file pleas by way of defense thereto. See Alexander v. Alexander, 13 App. D. C. 334 ; 26 W. L. R. 787. As to granting leave to file additional pleas. See Brown v. Balto. & O. R. R. Co., 6 App. D. C. 237 ; 23 W. L. R. 337. As to departure from strict appHcation of rules of practice. See Robinson v. Parker, 11 App. D. C. 132 ; 25 W. L. R. 497. As to appointment of receivers. See Jenkins v. Purcell, 35 W. L. R. 222; Wood v. Grayson, 16 App. D. C. 174; 28 W. L. R. 275; Clark v. Bradley Coal Co., 6 App. D. C. 437; 23 W. L. R. 419. As to permitting receiver to carry on business. See Cake v. Mohun, 164 U. S. 311 ; 25 W. L. R. 9. As to allowance of compensation to receivers. See Cake v. Wood- bury, 3 App. D. C. 60; 22 W. L. R. 236. As to reference to auditor. See Smith v. Gilmore, 7 App. D. C. 192; 23 W. L. R. 717; Taylor v. Girard Life Ins. Co., 1 App. D. C. 209; 21 W. L. R. 611. Judicial Notice;— Judiciai, Sales. 551 As to granting separate trial to one of two parties jointly indicted. See Maxey v. United States, 35 W. L. R. 446. As to suspending execution. See Byrne v. Morrison, 25 App. D. C. 72; 33 W. L. R. 315. As to transfer of cause to another justice for trial. See Gassenheimer V. United States, 26 App. D. C. 432 ; 34 W. L. R. 80. As to appointment of trustees to make sale under decree. ' See Wood V. Grayson, 22 App. D. C. 433; 31 W. L. R. 663. As to vacation of judgment. See Hill v. United States, 32 App. D. C. 395 ; 31 W. L. R. 552 ; St. Clair v. Conlon, 13 App. D. C. 161 ; 26 W. L- R. 165. As to qualification of witness to give opinion evidence. See Turner v. American Sec. & T. Co., 29 App. D. C. 460; 35 W. L. R. 303; Bradley V. Dis. of Col, 30 App. D. C. 169; 30 W. L. R. 455. As to permitting children of tender age to testify See Williams v. United States, 3 App. D. C. 335; 32 W. L. R. 457. As to extent to which party calling witness who deceives or disap- points him should have the right to examine him as to former contra- dictory statements. See Weaver v. Balto. & O. R. R. Co., 3 App. D. C. 436; S3 W. L. R. 393. As to availability of mandamus to control. See Tuttle v. Allen, 35 W. L. R. 50. As to application of rule that "'equity aids the vigilant". See Pryor v. Mclntire, 7 App. D. C. 417; 34 W. L. R. 49. See Courts; Patents. JUDICIAL NOTICE. See page 567. JUDICIAL NOTICES. As to publication of. See Conroy v. Carroll, 34 W. L. R. 517. JUDICIARY. As to power of Federal judiciary to control authority of Congress over Indians. See Lone Wolf v. Hitchcock, 187 U. S. 553; 31 W. L. R. 46. Legislative invasion of judicial power. See Ross v. Prospect Hill Cemetery, 8 App. D. C. 33; 24 W. L. R. 98. See Courts. JUDICIAL OFFICERS. As to method of trying question of validity of appointment of incum- bent of a judicial office. Se^ Anderson v. Morton, 31 App. D. C. 444; 31 W. L. R. 274. JUDICIAL QUESTIONS. As to what are. See In re Macfarland, 36 W. L. R. 114. JUDICIAL RECORDS. As to right of public to inspection of. See Bx parte Drawbaugh, 2 App. D. C. 404. JUDICIAL SALES. See Mortgages and Deeds of Trust; Saws. 552 Judgments and Decrees. JUDGMENTS AND DECREES. I. Validity in General. II. Scope and Effect. III. Conclusiveness. IV. Res Judicata. V. Pro confesso and Consent. VI. Full Faith and Credit. VII. Entry of. VIII. Arrest of. IX. Vacating and Setting Aside. X. Correction of Errors in. XI. Collateral Attack. XII. Merger. XIII. Limitations. XIV. Revival. XV. Lien of. XVI. Assignment of. XVII. Finality of. XVIII. Costs in. XIX. Interest on. XX. Enforcement and Satisfaction. XXI. In General. I. Validity in General. Want of jurisdiction renders a judgment void, and its invalidity may be shown in any proceeding in which it is sought to be enforced. Tenney v. Taylor, 1 App. D. C. 223 ; 21 W. L. R. 649. A person against whom a judgment has been rendered without any serv- ice of process is not precluded by any lapse of time from contesting its validity; but may wait until it is sought to be enforced against him. Harper v. Cunningham, 8 App. D. C. 430; 24 W. L. R. 316. Where an ultimate judgment is founded upon an order or process which the court was without authority to direct, the judgment itself is a nullity. Morse v. Hine, 29 App. D. C. 433 ; 35 W. L. R. 334. A decree rendered in advance of the period at which the court may lawfully acquire jurisdiction over defendants is void, and that the final decree in the cause was not made until after that time does not cure the defect, but such final decree is likewise void. lb. Jurisdiction of the subject matter and of the person are not always suf- ficient to give validity to a judgment ; but due process of law requires even then that the judgment shall not be in excess of the jurisdiction of the court, which is the case when there has been no valid verdict. Dis. of Col. V. Humphries, 12 App. D. C. 123; 26 W. L. R. 37. Where, at the time of the rendition of a sealed verdict, the jury is polled and but eleven jurors respond, a judgment based upon the verdict is absolutely void and may be so declared in any proceeding to impeach it, direct or collateral. lb. Whether a verdict by less than the entire panel being void, a judgment rendered thereon is wholly void or merely voidable, quxre; but the ef- fect of such judgment will not be declared on a motion by the appellee to dismiss the appeal on the ground that the transcript of record was not filed in time. Dis. of Col. v. Humphries, 11 App. D. C. 68; 25 W. L. R. 398. A judgment entered on a sealed verdict, which is signed by all the Judgments and Decrees. 553 jurors, is not affected by the fact that the foreman of the jury is absent on account of illness when the jury is polled and the verdict opened. Humphries v. Dis. of Col., 174 U. S. 190, reversing 12 App. D. C. 122. A judgment in ejectment can only be rendered against the tenant or real defendant after due service of process and actual notice to defend. Constructive notice by publication is not sufificient. Staffan v. Zeust, 10 App. D. C. 260 ; 25 W. L. R. 188. A judgment of dismissal is improper when based on plaintiff's failure to amend his declaration for which leave had been granted with a con- tinuance by withdrawing a juror, and his failure to pay costs imposed as a condition to the amendment by an order made at a time when he could no longer have any choice as to acceptance of the leave on those conditions. Jackson v. Emmons, 176 U. S. 532. A judgment of the Supreme Court of the District of Columbia rendered on appeal from a judgment of a justice of the peace in a suit against a married woman to recover certain witness fees alleged to be due the plaintiff for attending as a witness in an action at law is not void for want of jurisdiction. Magruder v. Armes, 15 App. D. C. 379; 27 W. L. R. 738. As to allowance of personal judgment against owners of building in proceeding by sub-contractors to enforce mechanics' liens. See Bmack v. Rushenberger, 8 App. D. C. 249 ; 24 W. L. R. 486. As to validity of judgment for plaintiff in the Supreme Court of the District in case removed from a justice of the peace by certiorari irregu- larly issued at the instance of defendant. See Warner v. Jenks, 12 App. D. C. 104; 26 W. I.. R. 131. As to validity of judgment by default against surety on undertaking on appeal from justice of the peace. See Tenney v. Taylor, 1 App. D. C. 323; 21 W. L. R. 649. As to effect of want of jurisdiction of court passing decree of fore- closure on validity of title conveyed by trustee making sale, in whom the leg-al title had vested under a trust deed. Chesapeake Beach Ry. Co. V. Washington, P. & C. R. R. Co., 23 App. D. C. 587 ; 32 W. L. R. 309. A judgment on demurrer allowing interest to which plaintiffs are not entitled, although claimed by them in their declaration, will be reversed on appeal because of such allowance. Deane v. Echols, 2 App. D. C. 522 ; 23 W. L. R. 233. It is error apparent on the face of a decree if, taking the whole pre- vious record into consideration, exclusive of the evidence, it is plain that no cause of action has been stated sufficient to justify the decree. Perkins V. Tyrer, 24 App. D. C. 447 ; 33 W. L. R. 54. II. Scope and Effect. Where there are several defendants a judgment of reversal for error as to some of them may be extended to all and a new trial granted as to all, where injustice might otherwise result. Gas Eight Co. v. Lansden, 172 U. S. 534, reversing 9 App. D. C. 508. Judgment by confession against one or two joint contractors in an action against both, does not prevent the recovery of judgment against 554 Judgments and Decrees. the other in the same suit. Construing § 837, R. S. D. C. Harris v. Leonhardi, 2 App. D. C. 318; 22 W. L. R. 107. The taking of judgment by default against principal in an action against principal and sureties, will not release sureties. Blagden v. U. S. to use of Preinkert, 18 App. D. C. 370 ; 29 W. L. R. 401. A judgment canceling a conveyance, entered in a suit to which all per- sons known to plaintiff as claiming an interest in the property were made parties, is eflfectual against one, not made a party, who claims under the grantee, of which plaintiff had neither actual nor constructive notice. Lynch V. Murphy, 161 U. S. 247 ; 24 W. L. R. 456. A decree against a public officer, passed after his retirement from of- fice, will not bind his successor. Backus Co. v. Simonds, 2 App. D. C. 290; 23 W. L. R. 137. A judgment in aid of the revenue laws of the State in which it is rendered and based upon a penal statute for the protection of such revenues, is not enforceable outside of such State. Arkansas v. Bowen, 3 App. D. C. 537; 22 W. L. R. 418. There is no difference in principle between a judgment against a de- linquent collector of taxes in favor of a county and such a judgment in favor of the State. lb. A decree directing the administrators of the surety on a bond of one by whom money was payable to a receiver, to make payment, is not er- roneous because it does not direct them to make payment out of assets that may remain in their hands as administrators, in the absence of any allegation of plene administravit or deficiency of assets. Cake v. Woodbury, 3 App. D. C. 60; 22 W. L. R. 236. In suit to enforce mechanics' lien a decree was passed establishing claim and directing sale of property and payment of certain prior liens out of proceeds and then of complainant's claim out of surplus and for personal judgment against defendant for any part of claim not so satis- fied by reason of insufficiency of proceeds. The proceeds of sale proved insuf- ficient to pay any part of complainant's claim. A consent decree was then passed ratifying report of auditor to that effect and directing distribution among such prior lienors, it being silent as to complainant's claim. Held, that last decree was not final and that complainant was entitled to execu- tion under first decree. McCarthy v. Holtman, 19 Apps. 150; 30 W. L. R. 23. Plaintiff having a judgment and open accounts, brought suit to vacate an assignment by his debtor. On appeal from a judgment of dismissal the decree was reversed and a new decree entered vacating the assign- ment, adjudging that plaintiff recover the amount of his judgment against the assignee and remanding the cause for further proceedings. Held, that no execution could issue on such decree, an accounting by the as- signee being intended by the direction for "further proceedings." Bieher v. Pechheimer, 9 App. D. C. 548 ; 25 W. L. R. 18. As to effect of decree vacating trustees' sale under deed of trust. See Taylor v. Girard Life Ins. Co., 1 App. D. C. 209 ; 21 W. L. R. 632. As to resort to opinion of the Supreme Court of the United States to ascertain the grounds and limitation of the scope of its decree for an Judgments and Decre;es. S5S unqualified dismissal of the appeal. See Baker v. Cummings, 16 App. D. C. 1 ; 28 W. L. R. 131. A judgment or decree for alimony is not in derogation of the rights of one required to pay it. Droop v. Ridenour, 11 App. D. C. 324; 35 W. h. R. 481. A decree in equity must stand upon the allegations of the bill admitted or proved, and not upon the case made by the answer. Washington Brew- ery Co. V. Cosgrove, 34 W. L. R. 133. The dismissal of a bill in equity to enforce a foreign decree awarding alimony, for want of jurisdiction, should be without prejudice to com- plainant's right to proceed at law. Davis v. Davis. 35 W. L. R. 206. III. Conclusiveness. A decree of the Orphans' Court admitting a will to probate in pursu- ance of the verdict of a jury is not conclusive in qn action of ejectment between the same parties wherein the will is offered as evidence of title of the devisees. Perry v. Sweeny, 11 App. D. C. 404; 35 W. L. R. 734. As to conclusiveness of a decree in a proceeding under § 115 of the Code, adjudging one to be a habitual drunkard. See Knott v. Giles, 27 App. D. C. 581; 34 W. L. R. 414. As to conclusiveness of judgments of Court of Claims. See Gray v. Dis. of Col, 1 App. D. C. 30 ; 31 W. L. R. 387. As to conclusiveness on civil courts of judgment of ecclesiastical court having jurisdiction of the subject-matter. See Satterlee v. Williams, 30 App. D. C. 393; 30 W. L. R. 694. As to conclusiveness of judgment or decree against administrator as evidence of the debt in an action against the surety on his bond. Amer- ican Bonding & Trust Co. v. Paynter, 33 App. D. C. 535; 33 W. L. R- 362. IV. Res Judicata. A general dismissal of a bill in equity, on the merits, is a bar to a sub- sequent action at law between the same parties on the same cause of action. Baker v. Cummings, 181 U. S. 117. The dismissal of a bill in equity because of laches will not bar an action at law involving the same cause of action. Cummings v. Baker, 16 App. D. C. 1; 28 W. L. R. 131. The decision of the Supreme Court of the United States in Baker v. Cummings, 169 U. S. 189, directing a dismissal of a bill in equity because of laches, held not to bar an action at law between the same parties in- volving the same cause of action. Baker v. Cummings, 16 App. D. C. 1 ; 28 W. L. R. 131. Defendant filed a bill in equity to have the value of improvements (alleged to have been made by him in good faith and without notice of any adverse claim on property from which he had been ejected at the suit of the plaintiff), assessed and declared an equitable lien upon the premises. On appeal this court directed the bill to be dismissed on the ground that it did not state a case within the jurisdiction of equity, though expressing an opinion that the complainant would have no right on the merits as shown by the evidence in the record. Held, in an ac- 556 Judgments and Decrebs. tion at law by plaintiff for the rents and profits of the premises, that the decree dismissing the bill did not render the claim of the defendant for such improvements res judicata. Anderson v. Reid, 16 App. D. C. 60; 28 W. L. R. 273. The effect, as res judicata, of a decree dismissing a bill in equity, may be determined by an examination of the opinion of the appellate court in accordance with which it has been entered. lb. The defense of a former adjudication may properly be made by a plea in equity. Wagenhurst v. Wineland, 22 App. D. C. 356 ; 31 W. L. R. 521. A decree or order in equity dismissing a former bill for the same matter, and which is conclusive upon the rights of the plaintiff therein or those under whom he claims, may be pleaded in bar to a new bill. 76. A decision of the appellate court, whereby a decree of the trial court was reversed and cause remanded that decree be modified in conformity with its opinion, becomes the settled law of the case, not only for the trial court but for the appellate court also ; and the questions therein deter- mined cannot be reopened on a subsequent appeal from a decree entered in accordance with the mandate of the latter court. Warner v. Grayson, 24 App. D. C. 55; 32 W. L. R. 454. A judgment of the Court of Claims is conclusive of all points which were, or ought to have been determined therein, and no other court can go behind it to administer relief not provided for thereby. Gray v. Dis. of Col, 1 App. D. C. 20; 21 W. L. R. 387. Where issues have been transmitted for trial by jury and a verdict thereon certified to the Orphans' Court, a judgment on such verdict is conclusive and that court cannot thereafter direct any further or other litigation of the same issues at the instance of any one. Dugan v. North- cutt, 7 App. D. C. 351 ; 24 W. L. R. 2. As to whether a finding in favor of the proponent of a will on the special issue as to whether testator was at the time of its execution under the influence of insane delusions, would be res judicata as to all persons in respect of the general capacity of testator to make a will. See Na- tional Safe Deposit Co. v. Heibergcr, 19 App. D. C. 506; 30 W. L. R. 309. The estoppel of a former adjudication can not be made to include every matter of fact and law that might have been determined under some contingency that did not arise, but only what must have been decided as expressly at issue, and also that which must either have been as- sumed, admitted expressly or by implication, or proved in order to war- rant the judgment or decree rendered. Cummings v. Baker, 16 App. D. C. 1 ; 28 W. L. R. 131. The principle of res judicata applies to the judgment or decree of a court of record having jurisdiction of the subject matter and parties in a habeas corpus proceeding brought to determine the right to the cus- tody and control of infants, especially where the court rendering the judg- ment or decree, in addition to having concurrent jurisdiction with courts of law in habeas corpus, has general jurisdiction over infants. Such a judgment or decree must be given the same effect in other jurisdictions that it would have in the jurisdiction where rendered. Slack v. Perrine. 9 App. D. C. 128; 24 W. L. R. 374. Judgmb;nts and Decrees. 557 Effect of decision on an interlocutory appeal as res judicata. Parrow V. Eclipse Bicycle Co., 18 App. D. C. 101 ; 29 W. L. R. 218. As to effect of order of discharge in habeas corpus proceedings. See Palmer v. Thompson, 20 App. D. C. 273; 30 W. L. R. 483. As to practice in pleading. See Wagenhurst v. Wineland, 22 App. D. C. 356; 31 W. L. R. 521. V. Pro confesso and Consent. A decree pro confesso is not a decree as of course according to the prayer of the bill, nor merely such as the complainant chooses to take it, but that it is made by the court, according to what is proper to be decreed upon the statements of the bill, assumed to be true. Such a de- cree admits the facts charged in the bill, but not the conclusions drawn therefrom, nor the conclusions of law. Knott v. Giles, 27 App. D. C. 581; 34 W. L. R. 414. Except in cases within the meaning of the Maryland Act of 1747, the courts of the District have full power to render judgment upon confes- sion, either upon the appearance of the party in person, or through a warrant of attorney for that purpose. Harper v. Cunningham, 5 App. D. C. 203; 23 W. L. R. 100. Where a judgment record recites that the appearance of defendant was by an attorney, who confessed judgment for him, it will bind the party until it is shown that the attorney acted without authority. Ih. A partner cannot bind his co-partners by a power of attorney to con- fess judgment. Harper v. Cunningham, 8 App. D. C. 430; 24 W. L. R. 2ie. Confession of judgment is not a preference within meaning of the act of Feb. 24, 1893, relative to voluntary assignments for benefit of creditors. Strasburger v. Dodge, 12 App. D. C. 37 ; 26 W. L. R. 9. Judgments by confession held in effect an assignment for the benefit of creditors and preferences created thereby void. Dodge v. Strasburger, 21 W. L. R. 515. A decree pro confesso admits the facts charged in the bill, but not the conclusions drawn therefrom, nor the conclusions of law. Perkins v. Tyrer, 24 App. D. C. 447 ; 33 W. L. R. 54. As to effect of decree pro confesso against defendant as principal on force and effect of allegations of bill as to agency of his co-defendants. See Albaugh v. Litho-Marble Dec. Co., 14 App. D. C. 113; 27 W. L. R. 130. A judgment or decree by consent is as binding upon the parties as one based upon protracted litigation. Jenkins v. Purcell, 35 W. L. R. 222. That a decree of the Orphans' Court in a will contest was prepared by counsel for appellant in order to speed the process of appeal, and was submitted to and approved by counsel for appellee and that counsel for appellant procured its entry on the minutes of the Orphans' Court, will not constitute it a consent decree in the sense that the appellant thereby waives all error therein. Olmstead v. Webb, 5 App. D. C. 38 ; 22 W. L. R. 801. VI. Full Faith and Credit. A judgment rendered without jurisdiction or otherwise without due 558 Judgments and Decrees. process of law, is not entitled to enforcement under the full faith and credit clause of the Constitution; and so held as to a judgment in per- sonam rendered by a court not having jurisdiction of the person. Wet- more V. Karrick, 205 U. S. 141 ; affirming 25 App. D. C. 415. A judgment rendered against a defendant without due notice to him is not entitled to full faith and credit in the courts of another State under the constitutional provision. Karrick v. Wetmore, 25 App. D. C. 415; 33 W. L. R. 435. A decree attempting to determine the custody of an infant not within the territorial jurisdiction of the court rendering it, is not within the full faith and credit clause of the Constitution. Seeley v. Seeley, 35 W. L. R. 98. A decree of a foreign court in a divorce proceeding cannot have the efifect of precluding a court in this jurisdiction from determining the cus- tody of an infant who was within this jurisdiction when the proceed- ings for divorce were instituted in such foreign jurisdiction and has remained here ever since. Seeley v. Seeley, 36 W. L. R. 4. A final unconditional decree for the payment of an ascertained and specific sum as alimony, rendered in another jurisdiction, is enforceable in the District, in an action of debt thereon as if it were a judgment at law for the recovery of a like sum in an action of debt or assumpsit. Davis V. Davis, 35 W. L. R. 206. A judgment or decree of a court of chancery having jurisdiction of the subject-matter and parties in a habeas corpus proceeding to deter- mine the custody of infants, such court having concurrent jurisdiction with courts of law in such case and general jurisdiction over infants, is to be given the same effect in other jurisdictions as it would have in the jurisdiction where rendered. Slack v. Perrine, 9 App. D. C. 128; 24 W. L. R. 374. Where infants, whose parents were residents of the District, were taken into New Jersey at the request of the father who was temporarily resid- ing there and placed by him in the custody of his relatives, held that the courts of that State had jurisdiction in habeas corpus proceedings, insti- tuted by the mother after the death of the father, to determine to whom the custody of the infants rightfully belonged; and the decree passed in such proceeding is binding in a habeas corpus proceeding between the same parties in this District, notwithstanding the fact that the infants were removed from New Jersey before the rendition of the decree there. lb. Such decree will not be held invalid in this District on the ground that the habeas corpus proceeding in which it was rendered should, under the law, have been heard by the vice-chancellor without the intervention of the chancellor or court of chancery; especially where the petition for the writ was filed in the chancery court and all subsequent proceedings were of record there. lb. Irregularities in such decree and antecedent proceedings will not af- fect its validity as a decree of the court of chancery, upon a collateral inquiry. lb. Even if such decree was erroneous as against the right of a testa- mentary guardian, it is a bar to the assertion of any claim in this Dis- Judgments and Decrees. 559 trict by such guardian against the mother to whom it awarded the custody of the infants. lb. The infants being within the jurisdiction of the courts of this Dis- trict their rights are not concluded or prejudiced by such decree. lb. VII. Entry of. A judgment should not be entered upon a verdict until after the lapse of four days, or until the disposition of a motion for a new trial; but if entered on the day the verdict was rendered it will not necessarily be held void; and so held in a suit to determine the question of priority as between the assignee of a judgment so entered and an attaching creditor of the judgment debtor. Hutchinson v. Brown, 8 App. D. C. 157 ; 34 W. L. R. 219. A motion for a new trial suspends the entry of judgment until the mo- tion is disposed of. Walter v. Balto. & O. R. R., 6 App. D. C. 20; 33 W. L. R. 226. A valid judgment by default cannot be rendered against a party be- fore the expiration of the time limited for his appearance in an appeal from a justice of the peace. Sturges v. Hancock, 4 App. D. C. 389; 33 W. L. R. 697. Entry of decree sustaining bill of interpleader in less than ten days after amendment increasing amount offered to be paid into court, not error. Kellogg v. Mutual Life Ins. Co. 35 App. D. C. 36 ; 33 W. L. R. 103. VIII. Arrest of. Arrest of judgment; defect in declaration on promissory note as ground for. See Chandler & Taylor Co. v. Norzvood, 14 App. D. C. 357; 37 W. L. R. 166. IX. Vacating and Setting Aside. A good judgment will not be set aside because a bad reason may have been assigned for it. Wilkins v. McGuire, 2 App. D. C. 448 ; 22 W. L. R. 155. A judgment may be vacated during the term at which rendered, for good cause shown. Until that is done, however, no proceedings can be had in the cause except such as are proper to carry the judgment into effect. Virginia Ins. Co. v. Bohnke, 4 App. D. C. 371; 22 W. L. R. 750. As a general rule a final judgment cannot be set aside by the court rendering it on application made after the close of the term at which it was entered. Tubman v. Balto. & O. R. R. Co., 190 U. S. 38. A court may open or vacate a judgment or decree, after expiration of one or more terms, if such judgment or decree be void. Macfarland v. Saunders, 25 App. D. C. 438; 33 W. L. R. 393. A judgment of dismissal, on its face apparently a final disposition of the cause in which rendered, can not, after the lapse of five terms of the court rendering it, be stricken out without notice to defendant, and a judgment rendered in place of it in favor of plaintiff and for the full amount of his claim. Karrick v. Wetmore, 25 App. D. C. 415 ; 33 W. L. R. 435. Judgments of dismissal not being rendered on the merits are liable to be gtrJcken out, yet they are final judgments, and may not, any more 560 Judgments and Decrees. than a judgment upon the merits, be disturbed after the lapse of the term at which rendered. lb. While a judgment of dismissal may not be disturbed after the lapse of the term at which it was entered, such rule does not apply to the case of a dismissal improperly entered by the clerk of the court in supposed compliance with common law Rule 39, and such dismissal may be set aside and the cause restored to the calendar. Welch v. Lynch, 35 W. L. R. 398. Where an appeal has been taken from a final order, and the term at which the order was rendered has lapsed, the court entering it is with- out jurisdiction to vacate it, except as provided in the act of Mary- land of 1787, ch. 9, § 6. Dis. of Col. v. Prospect Hill Cemetery, 5 App. D. C. 497; 33 W. L. R. 163. An order setting aside a verdict and granting a new trial where the parties fail to agree upon a bill of exceptions, has the effect of vacating the judgment rendered upon such verdict, even though it does not in express terms do so. Bi'ans v. Humphreys, 9 App. D. C. 392; 34 W. L. R. 783. A court which, acting under the erroneous belief that no action had been taken in a cause within a year, renders a judgment of dismissal, can not consistently with due process of law, set aside such judgment after the term, or the rule day which, under the local practice, is equivalent to the end of the term, without motion or proceedings to vacate the judgment and without notice, and proceed to render a per- sonal judgment against the defendant. Wetmore v. Karrick, 205 U. S. 141, affirming 23 App. D. C. 487. Want of jurisdiction to set aside a judgment after the term, and render, without notice, a new and different judgment, is available as a defense to an action on such judgment in a foreign jurisdiction, what- ever remedy the local practice may afford a person against whom judg- ment is rendered in his absence and without his knowledge. /&. The Supreme Court of the District has the right, on a return to certiorari, to set aside the judgment of a justice of the peace for ir- regularities resulting in injury to the plaintiff. Adriaans v. Johnson, 24 W. L. R. 581. A motion to vacate a judgment for fraud, deceit or surprise, the facts of which are not sworn to, is properly refused. Spalding v. Craw- ford, 3 App, D. C. 361; 33 W. L. R. 371. A court in acting upon a motion to vacate a judgment founded upon fraud or surprise, acts in the exercise of a qi(a.ri-equitable jurisdiction; and to justify vacation the proof of fraud, deceit or surprise must be as strong as is required in a court of equity when a judgment is sought to be annulled for such causes. lb. Where a contract sued upon is on its face a conditional sale, and not one of loan and security for its repayment, an allegation in the bill to the effect that the true meaning and legal effect of the contract was that the transaction was a loan with collateral security for its repayment, and that complainants were so advised by counsel learned in the law, is not the statement of a fact, but merely of a conclusion of law, and not sufficient basis for a decree against defendants, notwithstanding they make Judgments and Decrees. 561 no defense. Held, therefore, upon a bill filed to review the decree for error apparent on its face, that the original bill was fatally defective in stating no cause of action; that the decree rendered was not warranted by the bill; that, therefore, there was error apparent on the face of the decree, and such decree was properly vacated in pursuance of the bill of review filed for that purpose. Perkins v. Tyrer, 24 App. D. C. 447; 33 W. L. R. 54. Where exceptions filed to the verdict of the jury in a street extension proceeding were overruled by the court, and an order passed confirming the verdict and award, such order is void, for the reason that the filing of the exceptions made it necessary for the municipal authorities if they desired to proceed with the work, to cause the sum- moning of a second jury, as required by § 263, R. S. D. C, and being void, the court has power, notwithstanding the lapse of one or more terms, to vacate and set it aside, in so far as it affects the lands of the party excepting. Macfarland v. Saunders, 25 App. D. C. 438; 33 W. L. R. 393. Vacation of judgment of justice of the peace in landlord and tenant pro- ceeding. Hollidge V. Moriarty, 17 App. D. C. 530 ; 29 W. L. R. 248. As to nature of motion to vacate judgment and right of appeal from ruling thereon. See Hill v. United States, 33 App. D. C. 395; 31 W. L. R. 553. As to judicial discretion in respect of vacating judgment. See St. Clair V. Conlon, 12 App. D. C. 161 ; 36 W. L. R. 165. Ordinarily a writ of error or appeal cannot be based upon the refusal to vacate a judgment. Meyers v. Davis, 13 App. D. C. 361 ; 26 W. L. R. 710. Oversight of counsel does not excuse failure to take steps to vacate a judgment. Virginia Ins. Co. v. Bohnke, 4 App. D. C. 371; 33 W. L. R. 750. X. Correction of Errors in. A decree will not be reversed because of a mistake in the recital of costs of a sale. Such mistake should have been called to the attention of the court by motion to correct the error before appeal taken; but may be corrected after affirmance on appeal. United States v. Groome, 13 App. D. C. 460; 26 W. L. R. 802. XI. Collateral Attack. A court having general jurisdiction over the subject-matter of de- creeing the sale of real estate of a decedent for the payment of his debts, a decree directing such sale, although erroneous, can only be re- versed on direct appeal and cannot be impeached in a collateral proceed- ing. Duncanson v. Manson, 3 App. D. C. 360; 33 W. L. R. 331. Af- firmed in 166 U. S. 533. Where a non-resident infant defendant has been brought before the court and subjected to its jurisdiction, he cannot collaterally attack the validity of the decree entered in the cause on the ground that he was not an infant when his answer was taken, especially when he was present in person at the time his guardian ad litem was appointed and did not questipp the appointnient or the guardian's right to act for him. lb. 562 Judgments and Decrees. A judgment against a married woman can not be attacked collaterally and declared void on the ground that it is a general and personal judg- ment against her, with no limitation of execution to her sole and separate estate under the Married Woman's Act. Magruder v. Amies, 15 App. D. C. 379; 27 W. L. R. 738. As to whether a judgment in a criminal case rendered after waiver of trial by jury by accused, can be collaterally attacked and declared un- constitutional. See Belt v. United States, 4 App. D. C. 25; 22 W. L. R. 447. An order granting letters of administration on the estate of a decedent in the State where his death by wrongful act occurred cannot be at- tacked in a suit in this District brought to recover damages for such wrongful death, even though the court granting such letters may have erred in deciding the question of domicil of decedent. Richmond & D. R. R. Co. V. Gorman, 7 App. D. C. 91; 23 W. L. R. 673. A consent judgment of a state court of competent jurisdiction, valid D.nd binding on its face, awarding damages to an administrator for the wrongful death of his intestate, cannot be attacked for fraud in a col- iateral proceeding in this District. lb. A proceeding once discontinued cannot be revived and made effectual without notice to the party affected thereby, and the invalidity of the judgment or order entered without such notice may be shown in a col- lateral proceeding. Collins v. McBlaii; 29 App. D. C. 354; 35 W. L. R. 243. XII. Merger. A judgment at law is not merged in the decree of a court of equity in a suit brought by the judgment creditors to reach equitable assets of the judgment debtors and subject them to satisfaction of the judgment; and where the assets realized under the decree are insufficient to satisfy the judgment it remains in full force and effect for the residue. Davis V. Sanders, 25 App. D. C. 26 ; 33 W. L. R. 101. And the rule that, in such case, merger of the judgment in the de- cree will not take place, is not affected by the fact that, based apparently upon a cross-bill filed in the equity suit by one of the defendants, the decree provides that inasmuch as certain of the judgment debtors were insolvent the three solvent defendants should, as between themselves, contribute certain specified sums to make up the amount of the judg- ment, though the right of the plaintiff to have execution of his jqdgment against any or all of the defendants was expressly recognized and af- firmed, lb. XIII. Limitations. The statutory period commences to run from the date of a judgment for execution. Mann v. Cooper, 2 App. D. C. 226; 22 W. L. R. 98. The statute of limitations on a judgment begins to run from the date of the judgment, or from the expiration of any stay or supersedeas thereof, or from the time when execution could have legally issued thereon. Gait v. Todd, 5 App. D. C. 350; 23 W. L. R. 98. A judgment for execution is, in legal effect, a new judgment, and the Judgments and Decrees. 563 statute of limitations commences to run from its date anew. Mann v. Cooper, 2 App. D. C. 236; 22 W. L. R. 98. If a judgment debtor, for a valuable consideration, agrees to waive his right to plead the statute of limitations, and that the judgment may be enforced until actually paid, he is estopped to plead the statute to a sci. fa. or in an action of debt on the judgment. lb. Payment of a part of the principal of a judgment debt will not have the effect of avoiding the bar of the statute of limitations as applied to proceedings to revive or to recover on the judgment by action of debt. Construing Maryland act of 1715, ch. 23, § 6. lb. After judgment and execution issued and returned nulla bona, the operation of the statute of limitation, the period of which begins to run from the date of the judgment, will not be arrested by the removal of the judgment debtor from the jurisdiction and his death during the statutory period. lb. A judgment may be kept alive and executionable, although the judg- ment debtor be absent from the jurisdiction, by suing out execution within a year and a day, and upon its return having it regularly continued; or by the issue of two successive writs of sci. fa. within twelve years, and upon two successive returns of nihil, obtaining judgment of fiat executio. lb. That a judgment debtor places collateral security for the judgment in the hands of his creditor, under an agreement that any money realized thereon should be applied to the debt, the creditor retaining the right to sue out execution, and money so realized is applied by the creditor to the debt, does not constitute a waiver of the right to plead the statute of limitations to the judgment. Mann v. MacDonald, 6 App. D. C. 548 ; 33 W. L. R. 439. As to limitation of action on foreign judgment. See McKay v. Bradley, 26 App. D. C. 449 ; 34 W. L. R. 33. As to effect of plea in a judgment creditors' suit that judgment was inoperative because of the lapse of more than three years since the re- turn of a writ of fieri facias and no process had issued to revive the judgment. See Raub v. Hurt, 24 App. D. C. 211 ; 32 W. L. R. 701. XIV. Revival. The rule that a judgment must be revived after the lapse of a year and a day without execution, does not apply where the judgment debtor pro- cures delay of execution. Moses v. United States, 19 App. D. C. 290 ; 30 W. L. R. 56. The necessity for scire facias may be obviated either by suing out exe- cution within a year and a day from the signing of the judgment, and renewing such execution from time to time without intermission, until final execution had ; or by suing out execution within the year from the signing of the judgment, and having the same duly returned, upon which a second writ of fi. fa. may issue at any time, provided the first writ be regularly returned and filed, and continuances be regularly entered from the time of issuing the first writ. Qalt v. Todd, 5 App. D. C. 350; 23 W. L. R. 98. As to power of Supreme Court D. C- to issue writ of scire facias 564 Judgments and Decrees. to revive judgment of justice of the peace filed therein. See Green v. Mann, 19 App. D. C. 243; 30 W. L. R. 57. As to power of Supreme Court D. C. to issue vint of certiorari to re- vive judgment of justice of the peace filed therein. See lb. As to sufficiency of plea to sci. fa. issued to revive a judgment by con- fession. See Harper v. Cunningham, 8 App. D. C. 430; 24 W. L. R. 316. As to revivor of decree ratifying auditor's report making allowances to receiver. See Cake v. Woodbury, 3 App. D. C. 60; 22 W. L,. R. 236. XV. Lien of. The lien of a judgment upon real estate exists by virtue of the judg- ment, and is not at all dependent upon the execution. It arises when the judgment is entered, and continues during the period of limitations; and the fact that the judgment is dormant and not executionable does not affect the existence of the lien. McCarthy v. Tichenor, 29 W. L. R. 442. Section 1214, Code D. C, providing that judgments, etc., shall be a lien upon the equitable as well as the legal interests of the defendants bound thereby from the date when the same shall be rendered, does not operate in favor of judgments and decrees in existence at the time the Code went into effect. Ohio National Bank v. Berlin, 26 App. D. C. 218; 33 W. L. R. 726. A judgment is subordinated to the superior equities of a prior specific lien ; and if property be charged in equity before the entry of a judg- ment, the judgment will not affect such charge. Crosby v. Ridout, 27 App. D. C. 481; 34 W. h. R. 320. A judgment of a justice of the peace is not a lien until possibly after levy. Davis v. Harper, 14 App. D. C. 463 ; 27 W. L. R. 494. As to superiority over lien of judgment creditor of equitable right of deed of trust creditor in property, the description of which was omitted from the deed by mistake. See Manogue v. Bryant, 15 App. D. C. 245; 27 W. L. R. 478. Effect of judgment as lien. See Davis v. Harper, 14 App. D. C. 463; 27 W. L. R. 494. As to lien of judgment. See Babbington v. Washington Brewery Co., 13 App. D. C. 527; 27 W. L. R. 22. XVI. Assignment of. Notice to defendant in a judgment of the assignment thereof is not necessary to perfect the assignee's right. Hutchinson v. Brown, 8 App. D. C. 157; 24 W. L. R. 219. XVII. Finality of. A judgment effectually disposing of the matters in issue, including the award of costs, is final ; and it is immaterial that by the terms of the judgment the costs were to be taxed by the clerk or master. Clark v. Barber, 21 App. D. C. 274; 31 W. L. R. 94. As to finality for purposes of jurisdiction of Supreme Court of the United States. Macfarland v. Brown, 187 U. S. 239; 30 W. L. R. 838; Mackall V. Willoughby, 6 App. D. C. 125 ; 23 W. L. R. 261. As to what constitutes a final order or decree beyond the power of the JuDCMENf s AND Decrees. 565 court to vacate or set aside after the term at which entered. See Schwartz V. Costello, 11 App. D. C. 553 ; 26 W. L. R. 69. A judgment against an executor and reference to auditor to ascertain the assets of the estate, is interlocutory and not appealable. Pickrell v. Thompson, 12 App. D. C. 449 ; 26 W. L. R. 250. As to finality of decree providing for the payment of alimony. See Demonet v. Burkart, 23 App. D. C. 308 ; 32 W. L. R. 244. As to finality of decree in divorce proceedings precluding enforcement of an interlocutory order for payment of alimony pendente lite. See Walter v. Walter, 15 App. D. C. 333 ; 27 W. L. R. 785. As to finality of order overruling motion to vacate an order of pub- lication and that bill be taken as confessed against one of several defend- ants for failure to answer. See Chappell v. O'Brien, 22 App. D. C. 190; 31 W. L. R. 459. XVIII. Costs in. Costs are not an essential part but only an incident of a judgment and a mistake in the H. fa. in respect thereof is not to be regarded as a vari- ance between the writ and the judgment. Adriance, Piatt &• Co. v. Heiskell, 8 App. D. C. 240 ; 24 W. L. R. 217. Sec. 828, R. S. D. C, providing that where the declaration states a cause of action of which the Supreme Court of the District has jurisdic- tion, but the plaintiff recovers less than the lowest sum of which the court has jurisdiction, the judgment for plaintiff shall be without costs, applies only to cases originally brought in that court, and not to cases brought by appeal from justices of the peace. Cassidy v. Roberts, 29 W. L. R. 76. XIX. Interest on. Section 713, R. S. D. C, held to sanction and confirm the practice of equity in awarding interest on its decrees when such decrees already award an aggregate sum composed of principal and interest to the date of the decree or to some previous date; and to negative any inference that might be drawn from § 829, R. S. D. C, and the maxim that equity follows the law. Baker v. Cummings, 8 App. D. C. 515 ; 24 W. L. R. 360. Interest does not run upon judgments of the Court of Claims. Gray v. Dis. of Col., 1 App. D. C. 20; 21 W. L. R. 387. XX. Enforcement and Satisfaction. Under § 1074, Code D. C, a writ of execution may be issued immedi- ately on the rendition of a judgment, unless suspended by agreement or by an injunction or by an appeal operating as a supersedeas, and the entry of notice of appeal will have no effect whatever. Byrne v. Morrison, 25 App. D. C. 72 ; 33 W. L. R. 215. Where in the same suit there are two judgments, one personal and the other one of condemnation of property attached, the plaintiff is not forced to look to the latter alone, but may realize his personal judgment out of any property available for the purpose, and wholly disregard the attached property. Adriance, Piatt & Co. v. Heiskell, 8 App. D. C. 240; 24 W. L. R. 217. The award of execution upon a judgment against a married woman 566 Judgmi;nts and Decrees. having reference to her separate estate, should be against her sole and separate estate acquired and held under the statute, and not a general personal judgment. Foertsch v. Germuiller, 9 App. D. C. 351; 24 W. L. R. 794. Such judgment will not, however, be void for want of a formal limita- tion in the award of execution; but the error may be cured by motion to amend. lb. Real estate held in the name of a married woman but paid for largely with money of the husband, is subject to the satisfaction of the husband's judgment debt. Thyson v. Foley, 1 App. D. C. 182; 21 W. L. R. 637. The rights of a judgment creditor of a corporation are not affected by a reorganization thereof and transfer of assets to such new corporation. Weightjiian v. Critic Co., 4 App. D. C. 136-; 23 W. L. R. 665. A decree in favor of a receiver for compensation and for an indebted- ness for which he had assumed a personal liability, the receivership hav- ing terminated by sale of the property and installation of the purchaser, will pass on his death to his personal representative, who may enforce it. Cake V. Mohun, 164 U. S. 311; 25 W. L. R. 9. As to measure of damages recoverable by judgment creditors for the wrongful suing out of an injunction to restrain the enforcement of exe- cutions on their judgments. See Dodge v. Cohen, 14 App. D. C. 582; 27 W. L. R. 334. As to satisfaction of judgment, on dismissal of appeal, out of deposit by attorney of appellant of his own funds made in lieu of appeal bond. Mitchell V. Evans, 18 App. D. C. 254; 29 W. L. R. 399. As to sufficiency of bill to enjoin execution of judgment. See Magruder V. Schley, 18 App. D. C. 288; 29 W. L. R. 514. XXI. In General. Exceptions to general rule that before bill of review can be filed, de- cree must be obeyed and performed. Perkins v. Tyrer, 24 App. D. C. 447 ; 33 W. L. R. 54. Refusal of motion to strike bill of review from files for failure of parties to perform decree against them, is the equivalent of special permission to file bill without such previous performance. lb. Decree in equity as foundation for action at law against surety on bond of adminstrator. See American Bonding & Trust Co. v. Paynter, 23 App. D. C. 535 ; 32 W. L. R. 362. Where in a suit on a foreign judgment defendant claims that the judgment was pleaded as of the wrong date, and plaintiff thereupon amends to meet such objection, defendant cannot on retrial, object that the judgment was originally properly pleaded. Clark v. Barber, 21 App. D. C. 274; 31 W. L. R. 94. Defects appearing on the face of a record may be taken advantage of upon its production under a plea of nul tiel record; but those requir- ing extrinsic evidence to make them apparent must be formally alleged before they can be proven. Harper v. Cunningham, 5 App. D. C. 203; 23 W. L. R. 100. In an action on a foreign judgment the transcript can not be contra- dicted or amended by testimony by the defendant that the amount of costs Judicial Notice. 567 due hiin had not been properly entered to his credit in the certificate of taxation. Clark v. Barber, 21 App. D. C. 274 ; 31 W. L. R. 94. A party in prison in execution of a judgment or sentence of a court of competent jurisdiction must clearly show that the judgment, for causes apparent upon its face, is an absolute nullity, before he can be released on habeas corpus. United States v. Davis, 18 App. D. C. 280. Set-off in equity of unliquidated demands against judgment. Pedar- wisch V. Alsop, 18 App. D. C. 318; 29 W. L. R. 367. As to jurisdiction of appeal from. See Gilbert v. Wash. Ben. End. ,^ssn., 15 App. D. C. 40 ; 27 W. L. R. 340. As to modification on affirmance by appellate court. See Bclipse Bi- cycle Co. V. Farrow, 23 App. D. C. 411 ; 32 W. L. R. 265. As to admissibility in evidence of certified copies of decrees not formally authenticated. See Droop v. Ridenour, 11 App. D. C. 224; 25 W. L. R. 483. As to sufficiency of a decree of foreclosure of a deed of trust. See Taylor v. Girard Life Ins. Co., 1 App. D. C. 209 ; 21 W. L. R. 611. As to judgment against one of two parties sued upon a contract im- porting an obligation by both. See Presbrey v. Thomas, 1 App. D. C. 171 ; 21 W. L. R. 659. As to sufficiency of order directing executor to make partial distribu- fton of estate. See McLane v. Cropper, 5 App. D. C. 276; 23 W. L. R. 115. As to effect of recital in decree that an order of publication has been duly published. See Morse v. Hinc, 29 App. D. C. 433 ; 35 W. L. R. 334. As to control of court over decree of divorce requiring payment of ali- mony. See Beall v. Beall, 27 App. D. C. 468 ; 34 W. L. R. 388. See also Actions ; Appeal and Error ; Bill of Review ; Estoppel ; Evi- dence ; Execution ; Creditor's Bill ; Partition ; Patents ; Seventy-third Rule. JUDICIAL NOTICE. The Court of Appeals will take judicial notice of the Las Vegas land grant and of the existence of the town of Las Vegas. Maese v. Hermann, 17 App. D. C. 52. Courts are bound to take judicial notice of a change in the incumbency of a public office. Backus Co. v. Simonds, 2 App. D. C. 290;' 22 W. L. R. 137. Courts will take judicial notice of the powers and duties of the Secre- tary of the Navy under the Constitution and laws. McGoivan v. Moody, 22 App. D. C. 148; 31 W. L. R. 371. Courts will take judicial notice of departmental regulations in aid of a law. Prather v. United States, 9 App. D. C. 82 ; 24 W. L. R. 395. The courts will not take judicial notice of foreign administration; but will, for the purposes of a creditor's suit filed by resident creditors against locally situated real estate of a decedent, where the bill alleges that he left no personal property here and that there was no local administration, assume that there are no executors or administrators. Plumb v. Bateman, 2 App. D. C. 156 ; 22 W. L. R. 20. Judicial notice will be taken of the dereliction of street railway com- 568 Junk Dealers — Jurisdiction. panies in failing to provide adequate accommodations for passengers. Capital Traction Co. v. Brown, 29 App. D. C. 473 ; 35 W. L. R. 306. Judicial notice will be taken of the course of nature, of the location of the falls of the Potomac river near Washington, where the velocity of the current of a great river is first impeded by the tide, and of the variation between mean high and low tide at a certain point. Seufferle v. Macfar- land, 28 App. D. C. 94; 34 W. L. R. 526. An appellate court will take judicial notice of the rules of a lower court. Johnson-Wynne Co. v. Wright, 28 App. D. C. 375; 35 W. L. R. 2. Judicial notice will be taken of statutes of a State relative to practice in extradition proceedings. Hayes v. Palmer, 21 App. D. C. 450; 31 W. L. R. 371. JUNK DEALERS. A regulation requiring junk dealers to record and report purchases to the police held not unreasonable. Ullman v. Dis. of Col, 21 App. D. C. 241. JURISDICTION. As to right of a non-resident improperly served with process under § 1531 of Code to appear specially for purposes of jurisdiction. See Dexter v. Lichliter, 24 App. D. C. 222; 33 W. L. R. 732. A court of law has concurrent jurisdiction with a court of equity of a suit for an accounting. Patten v. Warner, 11 App. D. C. 149; 25 W. L. R. 448. A judgment of the Supreme Court of the District against a surety on an undertaking on appeal from a justice of the peace, given "to abide by, perform and pay" the judgment of such Supreme Court, is void in the absence of anything in the undertaking implying submission by the surety to the jurisdiction of the court. Tenney v. Taylor, 1 App. D. C. 223 ; 31 W. L. R. 649. As to whether a defendant, improperly obtaining by certiorari the removal of a case from a justice of the peace into the Supreme Court of the District, can question the jurisdiction of the latter court. See Warner v. Jenks, 12 App. D. C. 104; 26 W. L. R. 131. That the court passing a decree of foreclosure was without jurisdiction does not affect the title passed by the trustees making the sale thereunder, where the legal title was vested in such trustee by the trust deed. Chesa- peake Beach Ry. Co. v. Washington, P. & C. R. R. Co., 23 App. D. C. 587 ; 32 W. L. R. 309. As to right of one court to inquire into the jurisdiction of another. See Morse v. H'lne, 29 App. D. C. 433 ; 35 W. L. R. 334. As to existence of concurrent jurisdiction of Juvenile Court and Su- preme Court D. C. See United States v. Moss, 35 W. L. R. 36. The Juvenile Court is without jurisdiction to require reputed father of illegitimate child to support it. Moss v. United States, 35 W. L. R. 179. As to jurisdiction of Probate Court to authorize executor to employ counsel to defend will and direct collectors of estate to pay retainer to such counsel. See Kengla v. Randall, 22 App. D. C. 463 ; 31 W. L. R. 695. A court of equity is not bound of its own motion to raise the question Jurisdiction. 569 of its jurisdiction, and where such want of jurisdiction was not suggested by defendant a bill of review alleging such want of jurisdiction will be dismissed. McGoimn v. Blroy, 28 App. D. C. 188 ; 34 W. L. R. 783. By the appointment of guardians ad litem for non-resident infant de- fendants, by commissions appointed for that purpose, and the taking of answers by such guardians, such infants will be brought into court and subjected to its jurisdiction. Duncanson v. Manson, 3 App. D. C. 360; 23 W. L. R. 331. Affirmed in 166 U. S. 533. Service by publication not necessary to enable court of equity to sub- stitute for absent trustee in deed of trust. Marshall v. Kraak, 33 App. D. C. 139 ; 32 W. L. R. 130. Of court of equity to grant an injunction where no undertaking has been filed. Drew v. Hogan, 26 App. D. C. 55 ; 33 W. L. R. 488. On an appeal from a judgment of a justice of the peace, the appellant giving an undertaking, with a surety, to "satisfy and pay all the inter- vening damages and costs arising on the appeal," a judgment by default in the Supreme Court of the District against the appellant and his surety held void as against the surety for want of jurisdiction over his person. Tenney v. Taylor, 1 App. D. C. 223; 21 W. L. R. 649. The Supreme Court of the District holding a circuit court, held with- out jurisdiction of an action on a contract to pay money in instalments where less than $100, exclusive of interest, is due at the time of bring- ing suit. Mansiield v. Winter, 10 App. D. C. 549 ; 25 W. L. R. 370. As to jurisdiction of Supreme Court D. C. to issue injunction or man- damus against officers of the Government. See Houghton v. Payne, 31 W. L. R. 178. Of divorce proceedings. See Blandy v. Blandy, 30 App. D. C. 535; 30 W. L. R. 808. As to jurisdiction of Supreme Court D. C. to issue writ of habeas corpus in case of person restrained of his liberty in a distant possession of the United States by an officer of the Navy. See McGowan v. Moody, 22 App. D. C. 148 ; 31 W. L. R. 371. The Supreme Court of the District is without power to determine whether a person is lawfully imprisoned in another jurisdiction. In re Johnson, 31 W. L. R. 212. Jurisdiction of court in which indictment or information found not im- paired by manner in which accused is brought before it. Holden v. United States, 24 App. D. C. 318 ; 33 W. L. R. 34. To determine technical sufficiency of indictment. See Hayes v. Palmer, 21 App. D. C. 450; 31 W. L. R. 271. As to jurisdiction of Court of Appeals under § 226 of Code. See Chappell V. O'Brien, 33 App. D. C. 190 ; 31 W. L. R. 459. As to jurisdiction of Court of Appeals in habeas corpus cases. See Costello V. Palmer, 20 App. D. C. 210 ; 30 W. L. R. 402. As to sufficiency of objection to jurisdiction of justice of the peace, and mode of review of ruling thereon. See Anderson v. Morton, 31 App. D. C. 444; 31 W. L. R. 274. An objection to the jurisdiction of the trial court not raised below will not be considered on appeal. Smith v. Olcott, 19 App. D. C. 61 ; 29 W. L. R. 766. 570 Jurisdictional Amount — Jury and Jurors. As to jurisdiction of Secretary of Interior in rejecting a selection of public lands. See Riverside Oil Co. v. Hitchcock, 21 App. D. C. 252; 31 W. Iv. R. 174. Of land office. 76. Of action for trespass to land. See Columbia Sand Dredging Co. v. Morton, 28 App. D. C. 288; 34 W. L. R. 766. See ADMiR.a.LTY; Appeal and Error; Courts; Divorce; Equity; Patents; Probate Court. JURISDICTIONAL AMOUNT. See Appeal and Error. JURY AND JURORS. The examination of jurors on their voir dire is largely within the dis- cretion of the trial court, the exercise of which is not reviewable save for manifest and palpable error. Howgate v. United States, 7 App. D. C. 217; 24 W. L. R. 518. As to duty of counsel in criminal case to call to attention of court any error in empanelling jury. See Price v. United States, 14 App, D. C. 391; 27 W. L. R. 320. As to right of an accused to have a particular member of the panel sit in the trial of his case. See Horton v. United States, 15 App. D. C. 310; 27 W. L .R. 706. Sec. 215 of the Code alone determines those who are qualified to act as jurors. Those who are qualified under that section are not disqualified by § 217, but if they come within the terms of the latter section they have simply the right to assert their exemption from jury duty. Crawford V. United States, 35 W. L. R. 478. The laws regulating the selection and qualifications of grand and petit jurors in force in this District prior to Jan. 1, 1902, were repealed by the going into effect on that date of the act of Mar. 3, 1901, establishing a Code of Law for the District of Columbia. Clark v. United States, 19 App. D. C. 295; 30 W. L. R. 70. A grand jury summoned prior to January 1, 1902, at which date the Code, repealing prior laws relating to the selection and qualifications of jurors, went into effect, could not lawfully be empaneled subsequent to that date and an indictment found by such a grand jury is void. lb. The qualification of a juror is a mixed question of law and fact sub- mitted to the sound discretion of the court, and the exercise of that dis- cretion will not be disturbed unless manifest error to the prejudice of the accused be disclosed. Horton v. United States, 15 App. D. C. 310; 27 W. L. R. 706. The necessary test of the qualification of jurors in a trial for murder, under the act authorizing the jury to qualify their verdict of guilty by adding thereto the words "without capital punishment," in which case the punishment shall be life imprisonment, is that they shall have no bias in favor of or prejudice against either form of punishment, but shall stand indifferent between the Government and the accused on this as on all other questions involved in the case. Funk v. United States, 16 App. D. C. 478 ; 28 W. L. R. 486. Questions addressed to talesmen touching their qualifications to sit as jurors in a trial for murder, as to whether, if they found the defendant Jury and Jurors. 57 1 guilty, they would require mitigating circumstances before rendering a qualified verdict, or as to what circumstances they would require before doing so, are properly excluded. lb. The question of the competency of a party to sit as a juror is to be de- termined by the condition prevaihng at the time the jury is impaneled; and, if competent then, the competency must be considered as existing throughout the trial, notwithstanding that by reason of unexpected delays, a juror may pass the age limit before a verdict is returned. lb. In a prosecution for murder the preliminary inquiry into the state of a juror's mind in respect of the punishment to be imposed in the event the accused is found guilty ought not to be carried beyond the limits of as- certaining that he is unbiased for or against capital punishment and with- out prejudice against life imprisonment as a punishment for murder. Snell V. United States, 16 App. D. C. 501; 38 W. L. R. 519. Where a talesman, examined on the voir dire in a murder case, de- clares that he is without bias or prejudice as to the punishment to be imposed, and that his finding of a qualified or unqualified verdict will depend upon the facts and circumstances of the case, an objection to his competency is properly overruled. lb. In a will contest, a juror, when examined on the voir dire, falsely stated that he was over 21 years of age and had never been convicted of crime, he being at the time under age and having been repeatedly con- victed of crime. The jury found in favor of the will, and it was admitted to probate. Held, that a motion to vacate the order admitting the will to probate was properly denied, as the caveators had not been in any way prejudiced by the introduction of such juror into the jury box, the only issue submitted to the jury being wholly without support in the evidence. Raub V. Carpenter, 17 App. D. C. 505 ; 29 W. L. R. 122. A druggist whose drug store is a sub-postal station and who receives an annual compensation from the Government for conducting such sub- station, is not disqualified under either § 215 or § 217 of the Code, from sitting as a juror in the trial of a prosecution for conspiracy to defraud the United States. Crawford v. United States, 35 W. L. R. 478. A trial court will not be bound to set aside a verdict of guilty in a murder case because a juror may have, some months before the trial, expressed strong prejudice against Italians, to which nationality de- fendant belonged, where the juror, when examined on his voir dire, dis- claimed any such prejudice. Paolucci v. United States, 36 W. L. R. 2. Attempt by corrupt solicitation to influence conduct of juror, punishable as contempt of court under § 725, Rev. Stat. McCaully v. United States, 25 App. D. C. 404; 33 W. L. R. 306. Misconduct of jury as basis of motion for new trial. See Keely v. Moore, 22 App. D. C. 9 ; 31 W. L. R. 339. As to propriety of allowing counsel in his argument to jury to read declaration. See Metropolitan R. R. Co. v. Loud, 20 App. D. C. 330 ; 30 W. L. R. 530. As to cure of objectionable remarks of counsel in his argument to the jury. See Lorenz v. United States, 24 App. D. C. 337; 32 W. L. R. 822. As to peremptory challenges to which defendants in a trial for con- spiracy are entitled. See lb. 572 Jury Trial. An instruction to the effect that each juror should decide for himself on oath what his verdict should be, and should not yield his conscientious convictions either at the instance of a fellow juror or of a majority, and above all should not yield his honest convictions for the sake of unanimity or to avert a mistrial, is properly refused as being an incorrect statement of the duty and obligations of a juryman. Horton v. United States, 15 App. D. C. 310; 37 W. L. R. 706. The jury is the sole judge of weight and value of opinion of witness. See Shafier v. U. S., 24 App. D. C. 417 ; 33 W. L. R. 4. As to assessment of interest by. See Clements v. Mutersbaugh, 27 App. D. C. 165 ; 34 W. L. R. 373. A sealed verdict is void where at the polling of the jury only eleven jurors respond. Dis. of Col. v. Humphries, 13 App. D. C. 122; 26 W. L. R. 37; reversed in 174 U. S. 190. As to right to have jury polled on return of sealed verdict. See Bis. of Col. V. Humphries, 11 App. D. C. 68; 25 W. L. R. 398. As to exclusion of jurors in a capital case. See Horton v. United States, 15 App. D. C. 310 ; 27 W. L. R. 706. Effect of discharge of jury by justice of the peace, on its failure to agree. Chamberlain v. Edmonds, 18 App. D. C. 333 ; 29 W. L. R. 395. The jury provided for by the act of Mar. 1, 1833, relative to justices of the peace, is not a common law jury, and the prohibition of the Sev- enth Amendment to the Constitution does not apply. Capital Traction Co. V. Hof, 24 W. L. R. 646. As to presumption of presence. See Fields v. United States, 27 App. D. C. 433; 34 W. L. R. 383. Effect of submission of question of law to. Staples v. Johnson, 25 App. D. C. 155; 33 W. L. R. 183. In an action for personal injuries received in falling over a hitching post located in a street, it is for the jury to determine whether at the time of the accident the post was usual, reasonable, or safe in the con- dition in which it was. Dis. of Col. v. Duryee, 29 App. D. C. 337; 35 W. L. R. 254. See Court and Jury. JURY TRIAL. The trial by jury guaranteed by the Constitution is the common law trial by jury in which the findings of fact by the jury may be re-examined according to the rules of the common law. Brightwood Ry. Co. v. O'Neal, 10 App, D. C. 305; 25 W. L. R. 98; Capital Traction Co. v. Hof, 24 W. L. R. 646. The constitutional right of trial by jury does not extend to cases in which the United States are defendants. Purcell Envelope Co. v. Smith, 26 W. L. R. 515. Trial by jury can be validly waived in a criminal case by the accused, in pursuance of a statute authorizing such waiver. Belt v. United States^ 4 App. D. C. 25 ; 22 W. L. R. 447. As to power of Congress to provide for trial by jury of minor civil causes. See Capital Traction Co. v. Hof, 174 U. S. 1 ; 27 W. L. R. 262. It was competent for Congress, in legislating for this District, to pro- Justice — Justices oe the Peace. 573 vide for the empaneling of a common law jury in the court of a justice of the peace for the determination of questions of fact arising in suits instituted before such justice. Brightwood Ry. Co. v. O'Neal, 10 App. D. C. 205; 25 W. L. R. 98. The jury provided by the act of Congress of Mar. 1, 1823, for the trial of causes in the courts of justices of the peace, is a common law jury, having all the qualifications of such a jury. lb. As to application to District of Columbia of provisions of Constitution securing right of trial by jury. See Capital Traction Co. v. Hof, 174 U. S. 1; 37 W. L. R. 262. As to constitutional right to trial by jury before a justice of the peace. See Hill v. Neale, 27 W. L. R. 235. As to right of justice of the peace to refuse a defendant a jury trial because of his refusal to advance the costs of the jury. See Killmon v. Pirtle, 28 W. L. R. 209. An appeal will lie to the Supreme Court of the District from a judgment of a justice of the peace entered upon the verdict of a jury. Capital Traction Co. v. Hof, 24 W. L. R. 646. As to right of appeal from judgment of justice of the peace in case tried by jury. See Brightwood Ry. Co. v. O'Neil, 24 W. L. R- 406. A defendant in a prosecution in the Police Court for driving a horse- less vehicle at a speed prohibited by municipal ordinance, is not entitled to a jury trial under § 48 of Code taken in connection with § 44 thereof. Bowles V. Dis. of Col, 22 App. D. C. 321 ; 31 W. L. R. 539. Defendant in a prosecution for fast driving is not entitled to a trial by jury, the offence charged being unknown at common law and made such only by municipal ordinance. lb. Common law rule seventy-three of the Supreme Court of the District is not in violation of the provision of the Constitution relative to trial by jury. Simmons v. Morrison, 13 App. D. C. 161; 26 W. L- R. 434; Cropley v. Vogeler, 2 App. D. C. 28; 22 W. L- R. 43; Fidelity & Deposit Co. V. United States, 187 U. S. 315; 30 W. L. R. 827; Smoot v. Ritten- house, 27 W. L. R. 741. See also Appeal and Error ; Congress ; Constitutional Law ; Jus- tices OP THE Peace. "JUSTICE." As to distinction between terms "justice" and "court." See Bllioit v. United States, 23 App. D. C. 456 ; 33 W. L. R. 293. JUSTICES OF THE PEACE. I. Status as Court. II. Jurisdiction. III. Supervision of. IV. Jury Trials. V. Process. VI. Contempt of. VII. Pleading. VIII. Costs. IX. Practice and Procedure, X. Appeals frotp, 574 Justices of the Pbace. XL Removal of Causes. XII. Certiorari to Review. Xill. In General. I. Status as Court. Justices of the peace in the District of Columbia are not inferior courts of the United States. Capital Traction Co. v. Hof, 174 U. S. 1; 2.5 W. L. R. 704. While the court of a justice of the peace is in a certain sense a court of the United States it is not such a court as was contemplated in the Third Article of the Constitution. Brightwood Ry. Co. v. O'Neal, 10 App. D. C. 205 ; 25 W. L. R. 98. II. Jurisdiction. The act of Congress of Feb. 19, 1895, enlarging the jurisdiction of jus- tices of the peace, is constitutional. Carver v. O'Neal, 11 App. D. C. 353; 25 W. L. R. 704. Effect of provisions of law enlarging jurisdiction of justices of the peace and requiring appellants to give security to satisfy judgment of appel- late court as obstruction of right of trial by jury on appeal. See Capital Traction Co. v. Hof, 174 U. S. 1 ; 27 W. L. R. 262. Where a justice of the peace has acquired jurisdiction of a case, his jurisdiction is exclusive, subject to removal before another justice and to the right of appeal; and his jurisdiction cannot be ousted by the issue of a writ of certiorari out of the Supreme Court of the District, espe- cially after judgment rendered. Hendley v. Clark, 8 App. D. C. 165; 24 W. L. R. 197. The mere allegation that the defendant is not a resident of the sub- district in which the suit is brought, as required by § 5, Code D. C, is not sufficient to oust the justice of jurisdiction; and the ruling of the justice on the plea to the jurisdiction, if erroneous, is to be corrected by an appeal under the law to the Supreme Court of the District, and not by a writ of certiorari. Anderson v. hlorton, 21 App. D. C. 444; 31 W. L. R. 274. The act of Congress conferring jurisdiction in cases involving more than $20, is constitutional. Booth v. Kengla, 10 App. D. C. 548; 24 W. L. R. 715. The legislation of Congress embodied in the acts of 1823, 3 Stat. 743; 1867, 14 Stat. 401 and 403; 1895, 28 Stat. 668, is in all respects consistent with the Constitution. Capital Traction Co. t. Hof., 174 U. S. 1; 27 W. L. R. 262. As to concurrent jurisdiction of the Supreme Court. See Brown v. Slater, 23 App. D. C. 51 ; 32 W. L. R. 18. III. Supervision of. . Under the act of June 7, 1878, and §§ 996 and 1031, R. S. D. C, the Supreme Court of this District has general supervision of the conduct of justices of the peace. Fidelity & Deposit Co. v. Beck, 12 App. D. C. 237; 26 W. L. R. 104. IV. Jury Trials. It was competent for Congress in legislating for this District to pro- vide for the empaneling of a common law jury in the court of a justice Justices of the; Peace. 575 of the peace. Brightwood Ry. Co. v. O'Neal, 10 App. D. C. 205; 25 W. L. R. 98. As to power of Congress to provide for trial by jury of minor civil causes. See Capital Traction Co. v. Hof, 174 U. S. 1; 37 W. L. R. 262. The jury provided by the act of Congress of Mar. 1, 1823, for the trial of causes in the courts of justices of the peace, is a common law jury having all the qualifications thereof. Brightwood Ry. Co. v. O'Neal, 10 App. D. C. 205; 25 W. L. R. 98. The jury provided for by the act of Mar. 1, 1823, relative to justices of the peace, is not a common law jury, and the prohibition of the Seventh Amendment to the Constitution is not applicable. Capital Trac- tion Co. V. Hof, 24 W. L. R. 646. A trial by jury before a justice of the peace is not a trial by jury within the meaning of the common law and of the Seventh Amendment of the Constitution. Capital Traction Co. v. Hof, 174 U. S. 1 ; 27 W. L. R. 262. As to constitutional right to trial by jury before justice of the peace and right of justice to require deposit for costs of jury. See Hill v. Neale, 27 W. L. R. 335. On trial by jury of a cause before him, a justice of the peace has power to control the introduction of evidence, to instruct the jury on the questions of law arising in the case, and, when justice demands it, to set aside the verdict of the jury and award a new trial. Brightwood Ry. Co. V. O'Neal, 10 App. D. C. 205 ; 25 W. L. R. 98. In case of trial by jury before a justice of the peace, the justice has no authority to instruct the jury to find a verdict for the defendant. Adriaans v. Johnson, 24 W. L- R. 581. A justice of the peace is without power to refuse a defendant a trial by jury as provided by law because of his refusal to advance the sum of $20 to cover the costs of such jury; and where in such case he over- rules demand for a jury trial and sets the case for hearing before him- self without a jury, his action is equivalent to a discontinuance of the cause, and the proceedings will be quashed on certiorari. Killmon v. Pirtle, 28 W. L. R. 209. As to waiver of jury trial. See Chamberlain v. Edmonds, 18 App. D. C. 332; 29 W. L. R. 395. V. Process. A party interfering with or obstructing the service of the process of a justice of the peace is liable to the penalty imposed by § 5398, Rev. Stat. In re Carson, 26 W. L. R. 152. A writ of execution issued by a justice of the peace is waived by the subsequent issue of a A. fa. out of the Supreme Court of the District upon the judgment of the justice. Davis v. Harper, 14 App. D. C. 463; 27 W. L. R. 494. As to whether executions upon judgments of justices of the peace bind the property from the time of delivery to the officer or from the time of actual levy only. See Daniel v. Solomon, 11 App. D. C. 163 ; 25 W. L. R. 436. As to duty of constable receiving writ from. See In re Gould, 28 W L. R, 85, ' . . - , ■ 576 Justices of the; Peace. VI. Contempt of. A justice of the peace has power to punish for contempt only where the contempt has been committed in his presence, or for failure to obey a summons to testify as a witness. In re Carson, 26 W. L. R. 152. The court of a justice of the peace being an inferior tribunal, the warrant of commitment for contempt must recite every fact necessary to give jurisdiction. lb. VII. Pleading. In civil proceedings before justices of the peace there is no special pleading, such as is known and practiced in the higher courts of com- mon law jurisdiction. Carver v. O'Neal, 11 App. D. C. 353; 25 W. L,. R. 704 ; Bradshaw v. Barnshaw, 11 App. D. C. 495 ; 25 W. L. R. 809. When parties appear before a justice and announce themselves ready for trial, and a trial is had, with verdict and judgment, such an- nouncement must be regarded as equivalent to a joinder of issue. Carver V. O'Neal, 11 App. D. C. 353; 25 W. L. R. 704. The refusal of a justice of the peace to require a bill of particulars will not be held error where it appears that the complaint was suf- ficiently definite, and it does not appear that defendants were in any manner injured or hindered in their defense by the refusal. lb. VIII. Costs. A defendant demanding a trial by jury before a justice of the peace can not, under the- laws of this District, be required to make a deposit to pay the costs of the jury trial or to give security for such costs. Hill V. Neale, 27 W. L. R. 235. Successful plaintiff entitled to his costs ; but on appeal to the Supreme Court D. C, the award of costs is discretionary with the court. Cassidy V. Roberts, 29 W. L. R. 76. Section 828, Rev. Stat. D. C, relative to the exclusion of costs from a judgment where the recovery is for less than the jurisdictional amount, does not apply to appeals from justices of the peace. lb. As to action by defendant in a suit by a non-resident before a justice of the peace amounting to a waiver of the statutory requirement as to security for costs. See Guarantee Saz>., L. & L Co. v. Pendleton, 14 App. D. C. 384; 37 W. L. R. 233. IX. Practice and Procedure. ■ Sharp and technical points in procedure before justices of the peace condemned. Fidelity & Deposit Co. v. Beck, 12 App. D. C. 237; 26 W. L. R. 104. The discharge of a jury impaneled in a case tried before a justice of the peace consequent upon the failure of the jury to agree does not terminate the cause or take away from the justice the power to pro- ceed further therewith. Chamberlain v. Edmonds, 18 App. D. C. 332; 29 W. L. R. 395. The failure of a justice of the peace, after discharging a jury on its failure to agree to continue the cause by assignment thereof to some day certain thereafter will not effect a discontitiuance thereof or operate tQ dis- Justices of the Peace. 577 charge the defendant therefrom; but the cause remains in court, subject to be taken up again at any reasonable time thereafter upon motion and notice. lb. Upon motion and notice for trial of cause pending before a justice of the peace after a jury has been discharged for failure to agree, it is the duty of the justice, without any further or other demand therefor, to summon and impanel another jury for the trial of the issue between the parties, unless such trial is waived ; and it is not competent for him to try the issue himself without a- jury. lb. As to method o^ trying question of validity of appointment. See Anderson v. Morton, 21 App. D. C. 444; 31 W. L. R. 374. As to prerequisites to suit by non-resident. See Guarantee Sav., L. &■ I. Co. V. Pendleton, 14 App. D. C. 384; 37 W. L. R. 333. X. Appeals from. A party aggrieved by a judgment of a justice of the peace, whether such judgment be entered upon the verdict of a jury or in a case tried by the justice alone may appeal therefrom to the Supreme Court of the District. Capital Traction Co. v. Hof, 24 W. L. R. 646. No appeal will lie from a judgment of a justice of the peace in a case tried by jury before him under the provisions of the act of March 1, 1823. It is only to cases tried without a jury that the right pro- vided by § 1029, R. S. D. C, extends. Brightwood Ry. Co. v. O'Neal, 10 App. D. C. 205; 25 W. L. R. 98. An appeal will not lie from a judgment of the Supreme Court of the District in a suit appealed to that court from a justice of the peace. Ex parte Redmond, 3 App. D. C. 317. A judgment of the Supreme Court D. C. on an appeal from a justice of the peace is only reviewable by the Court of Appeals on the question of jurisdiction of the former court to render the judgment. Sturges v. Hancock, 4 App. D. C. 289; 22 W. L. R. 697. As to right of appeal to the Court of Appeals in cases originating be- fore justices of the peace. See Groff v. Miller, 20 App. D. C 353 ; 30 W. L. R. 434. A judgment on appeal from a justice of the peace may be set aside and a new trial granted. Ex parte Huntt, 10 App. D. C. 275 ; 25 W. L. R. 84. When judgment by default can be taken against party on an appeal from justice of the peace. See Sturges v. Hancock, 4 App. D. C. 289; 22 W. L. R. 697. The Supreme Court of the District has power to direct mandamus to issue to a justice of the peace to require him to consider the sufficiency of an appeal bond, and if found sufficient to approve the same. Church V. Fidelity & Dep. Co., 13 App. D. C. 364 ; 26 W. L. R. 676. As to bond to be given on appeal from judgment on a trial of right of property. See Davidson v. Mitchel, 34 W. L. R. 309. Duty to approve appeal bond and granting of mandamus to compel approval. Bundy v. U. S. ex. rel. Darling, 25 App. D. C. 459; 33 W. L. R. 434. As to bond on appeal from. See Schrot v. Schoenfeld, 23 App. D. C. 421; 32 W. L. R. 230. 578 Justices of the Peace. As to right of appeal in cases tried by jury. See Brightwood Ry. Co. r. O'Neil, 24 W. L. R. 406. As to method of proceeding in prosecuting appeals from justices of the peace. See Slater v. Willige, 16 App. D. C. 364 ; 28 W. L. R. 454. Appeals from. See Appe.^l and Error. XI. Removal of Causes. A plaintiff in a suit before a justice of the peace may abandon his suit there and institute suit for the same cause of action in the Supreme Court of the District ; and acquiescence in the issue of certiorari to re- move the cause, irregularly issued at the instance of defendant, has that effect. Warner v. Jenks, 12 App. D. C. 104; 26 W. L. R. 131. As to validity of judgment for plaintiff rendered by the Supreme Court of the District, having concurrent jurisdiction, in a case removed from a justice of the peace by certiorari irregularly issued at the instance of defendant. See lb. XII. Certiorari to Review. It is only where it is plainly shown that the proceedings before a jus- tice of the peace are infected with some irregularity rendering them ab- solutely void, that a certiorari will issue to bring them up for review by the Supreme Court D. C. Bradshaiv v. Barnshaiv, 11 App. D, C. 495; 25 W. L. R. 809. That a justice of the peace, in a matter of which he has jurisdiction, has committed gross errors and irregularities in that he has refused to transfer the case to another justice upon proper timely application, and regardless of a sufficient affidavit of defense has given judgment for plaintiff, and has wilfully and wrongfully refused to approve an appeal bond, is not ground for certiorari. In such case the remedy is by a rule upon the justice to show cause why the appeal should not be al- lowed, the appeal bond approved, and the original papers filed in the Supreme Court of the District. Fidelity & Deposit Co. v. Beck, 12 App. D. C. 237; 26 W. L. R. 104. The proceedings of a justice of the peace in a suit of which he has jurisdiction of the subject-matter and parties, cannot be reviewed upon certiorari where the irregularities alleged are that the jury was em- paneled before a formal joinder of issue, and that he proceeded to hear evidence of the defendant and receive a verdict and enter judgment for defendant, the plaintiff declining to participate in the trial. Bradshaw v. Barnshav), 11 App. D. C. 495; 25 W. L. R. 809. Where the return of a justice of the peace to a writ of certiorari is- sued to procure the vacation of a judgment entered by him in pursuance of the verdict of a jury because of alleged irregularities in the pro- ceedings, denies the occurrence of any such irregularities, the statement of the return, for the purpose of the hearing of an appeal from an order quashing the writ, must be accepted as true. Carver v. O'Neal, U App. D. C. 353; 25 W. L. R. 704. As to right to a second writ of certiorari to remove cause from justice of the peace on ground of concurrent jurisdiction, the first writ having been quashed for defect in petition. Brown v. Slater, 23 App. D. C. 51; 32 W. L. R. 18, Juvenile Court — LaboIi. 579 XIII. In General. As to what constitutes a suit by a non-resident under § 1002, R. S. D. C. See Bond v. Carter Hardware Co., 15 App. D. C. 72; 27 W. L. R. 462. Who is the prevailing party on an appeal from a justice of the peace. Cassidy v. Roberts, 29 W. L. R. 76. See also Appeal and Error; Certiorari; Landlord and Tenant. JUVENILE COURT. As to jurisdiction to require reputed father to support illegitimate child. See Moss v. United States, 35 W. L. R. 179. As to existence of concurrent jurisdiction of Juvenile Court and Su- preme Court D. C. of prosecution for failure to provide for a minor child. See United States v. Moss, 35 W. L. R. 36. LABELS. Injunction or mandamus will not lie to control the determination by the Commissioner of Patents of the question whether a label is entitled to registration. Allen v. Regina Music Box Co., 22 App. D. C. 271; 31 W. L. R. 476. See Patents. LABOR. While it is not unlawful for members of a labor union to argue with and persuade workmen, who are not under binding contracts, that it is for their interest to leave the service of their employer, it is unlawful to attempt to overbear the will of those who wish to enter or continue in such service. Adams v. Columbia Typographical Union, 34 W. L. R. 227. An injunction will issue to prevent third parties from persuading work- men to break their contracts of employment. lb. In a suit to enjoin an alleged unlawful combination and conspiracy to destroy a business by means of a boycott, held, that the record dis- closed the existence of such an unlawful combination and conspiracy, which would be enjoined pendente lite. Buck Stove Co. v. American Federation of Labor, 35 W. L. R. 797. One conducting a bakery, which he maintained as an open shop, was pronounced by the labor organization as "unfair to organized labor.'' Circulars announcing this fact and requesting members and friends of labor organizations to refrain from dealing with him while he remained unfair, were issued and widely distributed; and one of these circulars gave a partial list of complainant's customers and requested all sym- pathizers with organized labor to refrain from dealing with such cus- tomers while they continued to deal with complainant. An officer of the bakers' union went to certain of complainant's customers and made similar statements and endeavored to persuade them to withdraw their patronage from him. In a suit by the baker to enjoin the union from interfering with his business and maintaining the boycott, held that these acts of the defendants were not unlawful, and an injunction pendente lite denied. Bender v. Local Union, 34 W. L. R. 574. 580 Laches. LACHES. The rule against laches requires not merely the institution of a suit but its diligent prosecution, and the mere fact that a bill is left on the files is not sufficient to remove the objection of laches. Willard v. Wood, 164 U. S. 502. The question of laches is to be determined by the particular circum- stances of each case. Nelson v. Worihington, 3 App. D. C. 503; 22 W. L. R. 416. Laches does not, like limitations, grow out of the mere lapse of time, but is founded upon the inequity of permitting the claim to be enforced — and inequity founded upon some change in the conditions or relations of the property or the parties. Quirk v. Liebert, 12 App. D. C. 394; 26 W. L. R. 258. The doctrine of laches is applicable only in the matter of the enforce- ment of purely equitable rights and has no application to the enforcement of those rights for which the statute law expressly provides a limitation. Sis V. Boarman, 11 App. D. C. 116 ; 25 W. L. R. 431. The length of time during which a party neglects asserting his rights which must pass to show laches varies with the circumstances of each case. It is an equitable defense controlled by equitable considerations, and the lapse of time must be so great and the relations of defendant to the rights such that it would be inequitable to permit plaintiff to now assert them. Darlington v. Turner, 24 App. D. C. 573; 33 W. L. R. 114. It is no excuse for laches that complainant believed suit^would be unprofitable by reason of poverty of defendant. Pairo v. Pairo, 24 W. L. R. 822. Where undue delay appears to exist complainant must set forth in his bill specifically the impediments to an earlier assertion of his claim, and the truth of these explanations must be proved to the satisfaction of the court and be sufficient to account for the delay. lb. A court of equity may refuse relief on the ground of laches although less than the statutory period of limitations has elapsed. lb. There must be something extraordinary in the circumstances of a case to justify a court of equity in denying relief on the ground of laches when there would be no bar by the statute of limitations to a corresponding action at law. Wash. Loan & Trust Co. v. Darling, 21 App. D. C. 132; 31 W. L. R. 129. As to application of rule that the doctrine of laches can only be in- voked by one in possession against one out of possession. See Van Hook V. Prey, 13 App. D. C. 543; 27 W. L. R. 39. The rule that "equity aids the vigilant" is neither arbitrary nor tech- nical, but is capable of rigid contraction on the one hand, and of wide expansion on the other, in the sound discretion of the chancellor, accord- ing to the special circumstances of each case. Pryor v. Mclntire, 7 App. D. C. 417; 24 W. L. R. 49. Poverty, illiteracy and ignorance of the law will not avail as an excuse for laches. Levis v. Kengla, 8 App. D. C. 230 ; 24 W. L. R. 246. A married woman dealing with her statutpry separate estate is equally Laches. 581 subject to the imputation and consequences of laches as if she were feme sole. Warner v. Jackson, 7 App. D. C. 311; 33 W. L. R. 811. A party seeking to rescind a contract or completed sale for fraud must act within a reasonable time; but what is a reasonable time de- pends upon the facts of the particular case, and where the delay has not been wilful or exercised for an unfair purpose a liberal extension of time may be permitted. Tyler v. Moses, 13 App. D. C. 438 ; 36 W. L. R. 771. A delay of ten years in making objection to a sale under a deed of trust, of city property, on the ground of inadequacy of price, held to de- prive the party complaining of relief. Wheeler v. McBlair, 5 App. D. C. 375; 33 W. L.R. 153. As to right of grantee of a deed of trust debtor, after a lapse of fifteen years, to have a sale under the deed of trust annulled for fraud and ir- regularities. See Southey v. Mclntire, 7 App. D. C. 447; 34 W. L. R. 57. Where thirteen years after a sale made under a deed of trust executed by husband and wife of real estate of which they were jointly seized to secure a joint debt, and several years after the death of the husband and one of the trustees, the property in the meanwhile having passed by divers mesne conveyances, all of which were duly recorded, to the de- fendant who had improved it, greatly enhancing its value, the wife filed a bill to have the deed of trust declared void and the sale vacated, on the ground that one of the trustees had purchased the property at the trus- tee's sale, held, that her laches precluded her from maintaining the suit. Quirk V. Liehert, 12 App. D. C. 394; 36 W. L. R. 258. The delay in bringing the suit is not excused by the fact that com- plainant was a ieme covert, since the property conveyed was held by her under the Married Woman's Act, and she therefore occupied as to it the position of a feme sole, subject to all defences as a feme sole would be. Quirk v. Liehert, 12 App. D. C. 394; 26 W. L. R. 358. As to delay barring right of action to set aside sale under deed of trust. See Starkweather v. Jenner, 37 App. D. C. 348 ; 34 W. L. R. 350. A writ of certiorari for relief against an illegal tax sale was properly quashed where there was a delay of sixteen years in applying therefor. Guy V. Dis. of Col, 25 App. D. C. 117; 33 W. L. R. 165. A bill to annul the sale by one partner to another of his interest in a certain class of the partnership business cannot be maintained where the complainant has for three years, with full knowledge of the facts, re- mained silent and permitted the other party to go on and expend time and labor in the business sold. Baker v. Cummings, 169 U. S. 189, re- versing 4 App. D. C. 330 and 8 App. D. C. 515. What constitutes laches must depend upon the circumstances of each particular case, and a delay of three years in bringing suit to avoid a sale of a partnership interest on the ground of fraud, held, under the circumstances of the case, not to constitute laches. Baker v. Cummings, 4 App. D. C. 330; 22 W. L. R. 681; reversed in 169 U. S. 189. Where an agent in whose hands real estate had been placed for sale, represented to his principal that he had sold the property to one T. for much less than its value, saying it was all he could get for it, and the principal, being in needy circumstances accepted the offer and executed 582 Laches. a deed for the property, but nine years thereafter discovered that there was no such person as T. and that the agent had defrauded her, Held, that the delay of nine years was not such laches as would bar her right to relief in equity. Ackerman v. Mclniire, 7 App. D. C. 443; 24 W. L. R. 56. Where a trustee, taking advantage of the ignorance of and confidence reposed in him by his cestui que trust, by means of false representations and personation and spoliation of papers defrauds them of their prop- erty, and there are no intervening equities, elements of estoppel nor in- equitable conduct on the part of those so defrauded, a delay of nine years before taking steps to recover their property will not bar their right to relief in equity. Nothing short of the statutory period in analog- ous actions at law will be considered as barring them. Pryor v. Mcln- tire, 7 App. D. C. 417 ; 24 W. L. R. 49 ; Brown v. Mclntire, 7 App. D. C. 435; 24 W. L. R. 54; Hayne v. Mclntire, 7 App. D. C. 449; 24 W. L. R. 59. Delay in bringing suit to establish a resulting trust in real property will not constitute laches barring relief in equity, where it appears that complainant had been for many years in undisturbed possession of the premises and had no reason to believe that his title was not perfect until the institution of an action of ejectment, whereupon he immediately took action. Brdinard v. Buck, 16 App. D. C. 595; 28 W. L. R. 585. Where on the sale of the real estate of a decedent it is bought in by his heirs, the amount of their respective interests in the estate being credited on account of their respective purchases, and the husband of one of the heirs bid in part of the property and was credited with the amount of his wife's share in the estate, held that a lapse of 30 years from the time of the transaction did not constitute laches barring a suit by the executor of the wife to establish a resulting trust. Cooksey v. Bryan, 2 App. D. C. 557 ; 22 W. L. R. 252. A delay of fifteen years in bringing suit to enforce a trust in regard to real estate, held laches precluding relief. L-cvis v. Kengla, 8 App. D. C. 230; 24 W. L. R. 246. Where more than two years from the death of a trustee and six years from that of his co-trustee elapsed before any action was taken to hold the former liable for the defalcation of the latter, held to show after- thought not entitled to approval of a court of equity. Colburn v. Grant, 181 U. S. 601. In bringing suit to declare a special charitable trust void for in- capacity of execution. Columbian University v. Taylor, 25 App. D. C. 124; 33 W. L. R. 181. The delay by the obligee in a bond secured by deed of trust, for nine- teen years and five months, to enforce the deed of trust affords no ground for the application of the doctrine of laches, especially where the bond itself has been reduced to judgment in the meanwhile. Sis v. Boar- man, 11 App. D. C. 116; 25 W. L. R. 431. A delay of seven years in filing a bill to vacate a deed held to pre- clude complainant's right to relief. Warner v. Jackson, 7 App. D. C. 211; 23 W. L. R. 811. The lapse of four years from the death of the husband and nine Land DeparTmhInT. 583 yeafs from the date of the mortgage from which a wife seeks exoneration of her estate from that t)f her husband, furnishes no ground of defense, where the bill for relief was filed before the mortgage debt matured. Shea V. McMahon, 16 App. D. C. 65 ; 28 W. L. R. 203. A delay of forty years is fatal to the right of a holder of the record title to real estate to maintain a bill to remove a cloud on his title created by a tax deed. Knox v. Gaddis, 1 App. D. C. 336; 21 W. L. R. 742. As to delay constituting laches in bringing of suit to remove cloud on title. See Mayse v. Gaddis, 2 App. D. C. 20 ; 22 W. L. R. 46. As to laches precluding a mortgagee from availing himself of a contract to purchase made with the mortgagor whereby the purchaser assumed the payment of the mortgage. Willard v. Wood, 164 U. S. 502. Laches in prosecuting a judgment creditor's suit will not affect the Hen acquired by complainant on the filing of his bill. Young v. Kelly, 3 App. D. C. 296; 22 W. L. R. 313. As to circumstances excusing delay of 16 years in bringing suit to have a partnership account opened and taken de novo. See Murphy v. Kirby, 3 App. D. C. 207; 22 W. L. R. 306. Delay of two years in filing bill held to preclude right to have spe- cific performance of contract decreed. Barbour v. Hickey, 2 App. D. C. 207 ; 22 W. L. R. 57. Where laches are not relied upon as a defense a court of equity may raise the question of its own motion. Crutchfield v. Hewett, 2 App. D. C. 373 ; 23 W. L. R. 127. As to effect of delay to bar recovery on a guaranty. See Hughes v. Heyman, 4 App. D. C. 444; 22 W. L. R. 737. As to effect, in action of ejectment, of delay of seven years by parties claiming as heirs at law to assert their right as against one claiming under a will. See Barbour v. Moore, 10 App. D. C. 30 ; 25 W. L. R. 55. Dismissal of a bill for laches will not bar an action at law involving the same cause of action. Cummings v. Baker, 16 App. D. C. 1; 28 W. L. R. 131. Affecting right to file bill of review. Landram v. Jordan, 25 App. D. C. 291; 33 W. L. R. 243; McGowan v. Blroy, 28 App. D. C. 188; 34 W. L. R. 782. See Equity; Patents; Limitation of Actions. LAND DEPARTMENT. Congress has constituted the Land Department, under the supervision and control of the Secretary of the Interior, a special tribunal with judicial functions, to which is confided the execution of the laws which regulate the purchase, selling and care and disposition of the public lands. Riverside Oil Co, v. Hitchcock, 190 U. S. 316. Neither an injunction nor mandamus will lie against an officer of the Land Department to control him in discharging an official duty requiring the exercise of judgment and discretion. lb. Until the legal title passes from the Government, inquiry as to equitable rights is within the cognizance of the Land Department. Brown v. Hitchcock, 173 U. S. 473. 584 Land Frauds— Landlord and Tbnant. As to control of action by courts. See Brown v. Hitchcock, 173 U. S. 473. See PuBuc Lands. LAND FRAUDS. See Bribery. LAND GRANTS. A bill in equity will not lie against the Land Department to contest the confirmation to a town of a claim thereof under a Mexican grant, on the ground that the grant was to private persons and not to the town. The confirmation of the patent by Congress is conclusive as to the capacity of the town to take. Maese v. Herman, 183 U. S. 572, af- firming 17 App. D. C. 53. See Public Lands. LANDLORD AND TENANT. L Relation of Parties. IL Condition of Premises and Repairs. III. Lien for Rent. IV. Termination of Tenancy. V. Forfeiture of Lease. VI. Possessory Actions. Vn. In General. I. Relation of Parties. The relation of landlord and tenant between mortgagor and mortgagee after default is not created by a provision in the deed of trust that the mortgagor may remain in possession until default. Willis v. Eastern T. & B. Co., 169 U. S. 295 ; 26 W. L. R. 166. A tenant cannot dispute his landlord's title, either by setting up title in himself or another during the continuance of his tenancy. He cannot change the character of the tenure by his own act merely, for his pos- session is the possession of the landlord. McFarlane v. Kirhy, 38 App. D. C. 391; 35 W. L. R. 23. Where a lessor at the time of a lease agrees in writing to sell the leased premises to the lessee at a specific price and the lessee who fails to pay the full purchase price, thereafter agrees to sell the property to a third person, and such third person obtains a deed from the lessor with the consent of the lessee's attorney, and at the same time is assigned the lease, such third person may recover possession of the property from the lessee on default in payment of rent reserved under the lease. lb. During the existence of the tenancy, neither a lessee nor' his assigns can dispute the title of his lessor or his heirs, either by setting up title in themselves or in a third person. Morris v. Wheat, 11 App. D. C. 201; 25 W. L. R. 494. While a tenant may, without actual surrender to his landlord, remain in possession, assert title to himself, and lay a foundation for the com- pletion of the title by adverse possession ; yet in such case, a clear, posi- tive and continued disclaimer and disavowal of the title and assertion of an adverse right, to be brought home to the landlord, are indispensable before any foundation can be laid for the operation of the statute. lb. As to effect of covenant in lease that a building erected by lessee on the Landi,ord and Tenant. 585 demised premises shall become the property of the lessor at the end of the lease, to make the lessee the agent of the lessor. See Albaugh v. IMo-Marble Dec. Co., 14 App. D. C. 113 ; 37 W. L. R. 130. II. Condition of Premises and Repairs. At common law there is no implied covenant by a lessor that the leased premises are in good repair, or fit for the intended use. Keroes v. Rich- ards, 38 App. D. C. 310 ; 34 W. L. R. 703. There is no implied warranty in the letting of a house that it is safe and fit for occupation; and in the absence of an express warranty, the rule of caveat emptor applies, and it is for the lessee to make the ex- amination necessary to determine whether the premises are in safe condi- tion and adapted for the purposes of his occupation. Howell v. Schneider, 34 App. D. C. 533 ; 33 W. L. R. 83. A parol promise by the lessor to make repairs, even if admissible where the lessees subsequently accepted without objection a written lease con- taining no such provision, will not be given the effect of a special war- ranty of the complete safety of the premises in all respects, where an in- spection of the premises was made by the lessees and certain improve- ments and repairs needed or desired pointed out by them were made to their satisfaction by the lessor. lb. The lessor is not liable to the lessee for an injury caused by the fall of the water box or flush tank in the bath room, due to its defective con- struction, where he has no actual knowledge of the unskillful construc- tion or dangerous condition of the water box, and made no misrepresen- tation in respect of it. lb. No action lies by a tenant against a landlord on account of the con- dition of the premises in the absence of an express warranty or of active deceit. The mere fact that a careful inspection of the premises would have disclosed the defect is not sufficient, the tenant being charged with that duty on his own behalf. lb. Where a landlord has knowledge of dangerous defects in the prem- ises, which are not open to observation of lessee, he must reveal them and failure to do so may amount to such culpable negligence as to af- ford ground of action against him in case lessee sustains injury therefrom. lb. In an action to recover rent alleged to be due under a lease, the de- fendant having failed to give the thirty days' notice of his intention to quit the premises, parol evidence is admissible to show that defendant had signed the lease in reliance upon an agreement by plaintiff to put the premises in repair, which agreement plaintiff had failed to perform, whereupon defendant had removed from the premises at the end of the first month. Donaldson v. Uhf elder, 31 App. D. C. 489; 31 W. L. R. 428. When a lessee covenants to keep old premises in repair, his obligation is to first put them in reasonable repair, and then to keep them so, par- ticularly if the defects are open to observation and where there has been no fraudulent representation or concealment by the lessor. Keroes v. Richards, 38 App. D. C. 310 ; 34 W, L. R. 703. A lease provided that the lessee should pay for all repairs. A terra §86 Landlord and 'l'E>fANf. cotta s^wef pipe existed beneath the premises, which at the time of the lease was vety defective. The municipal authorities condemned the pip- ing and ordered that iron pipe, as required by the then existing building regulations, be substituted. The lessee refusing to do the work, the lessor had it done and presented the bill to the lessee, who declined payment. Held, that it was the lessee's duty to reimburse the lessor to the extent, at least, of such proportion of the entire cost of reconstruction as would have been incurred if it had been of the less expensive material used in the original construction, and his failure to pay even that proportional part was a violation of his covenant entitling the lessor to declare the lease at an end. Keroes v. Richards, 28 App. D. C. 310 ; 34 W. L. R. 703 ; affirming 34 W. L. R. 325. A lessor is entitled to recover from lessee's executor the rent reserved in a renewal lease agreed to in writing by lessee on condition that cer- tain repairs be made to the premises, but never formally executed by him, where it appears that lessor had before the beginning of the new term completed the improvements save in one particular prevented by lessee's illness, and that lessee continued in possession during a portion of the new term, American Sec. & Trust Co. v. Walker, 23 App. D. C. 583; 32 W. L. R. 348. III. Lien for Rent. The Landlord and Tenant Act of 1867 provides adequate methods at law to enforce a landlord's lien for rent, and § 808, R. S. D. C. does not apply to such proceedings. The Richmond v. Cake, 1 App. D. C. 447; 21 W. L. R. 819. The tacit lien for rent given by the act of 1867 extends only to rent due and that which has actually commenced to accrue but not yet pay- able, and where periods of payment are provided in a lease the lien does not extend to rent for any such period unless that period has actually commenced to run and the landlord'5 right to that installment has be- come fixed and absolute. lb. The exemption from a landlord's lien for rent under the act of 1867, refers only to such statutory exemptions as are allowed to householders, etc., and does not extend to chattels upon which there is an existing lien. lb. Eviction of a tenant by his landlord during the term of the tenancy is a good defense to an action for rent due or payable for any part of the term which the tenant has thereby been prevented from enjoying. lb. A landlord in possession of property under lien for rent may main- tain action to establish his right thereto as against a judgment creditor of tenant who has caused execution to be issued thereon; and that he has become purchaser at the execution sale does not affect his right. Brown v. Petersen, 25 App. D. C. 359; 33 W. L. R. 310. No recovery can be had for rent accruing after a surrender of the properly by the lessee, accepted by the lessor. Okie v. Person, 23 App. D. C. 170; 32 W. L. R. 103. The lien which a landlord has on the goods and chattels of a tenant Landi^ord and Tenant. 587 is not a secured debt within the meaning of the Bankruptcy Act. Matter of Johnston Co., 30 W. L. R. 118. The claim of a landlord of, a bankrupt cannot be paid until after pay- ment of the expenses of administration of the bankrupt's estate. lb. Priority of lien of unrecorded deed of trust on chattels given to secure rent. See Hume v. Riggs, 12 App. D. C. 355. IV. Termination of Tenancy. A notice to quit served by the landlord upon the tenant full thirty days before the end of the term^ as required by § 1219, Code D. C, is not insuf- ficient because it fails to specify the date of the termination of the lease. Byrne v. Morrison, 25 App. D. C. 72; 33 W. L. R. 215. The receipt by a landlord of rent for the current month pending a notice to quit is not a waiver of his right to demand possession under that notice. Ih. A surrender of demised premises, accepted by the lessor, ends the relation of landlord and tenant; and, when the surrender is between rent days, the tenant is discharged from all liability for rent even for the period between the surrender and the last rent day, for the rent is not to be apportioned. Okie v. Person, 23 App. D. C. 170; 32 W. L. R. 103. In a suit to recover rent for the last two months of the term of a lease, evidence is admissible that after suit brought but before the ex- piration of the lease plaintiff had stored lumber on the porch and other portions of the demised premises, as tending to show that plaintiff had accepted a surrender of the demised premises, thereby discharging the defendant from liability for the last month's rent. Ih. Where a lessor enters and evicts a tenant wrongfully from a portion of the demised premises, the eviction operates as a suspension of the entire rent until possession is restored. The lessor can not apportion his own wrong and charge the lessee for the use and occupation of the portion left to him. lb. A plea of set-off in an action for rent alleged to be due under a lease, claiming "for damage accruing to the defendant for breach of the covenant for quiet enjoyment, and amount due for use and occupation by plaintiff of demised premises,'' is broad enough to recover any dam- age accruing from the eviction of defendant from the demised premises, especially in a suit before a justice of the peace, wherein the decision is required to be not in accordance with legal principles alone, but in ac- cordance "with the equity and right of the matter" (Code D. C, § 80). lb. Where a lease provides that the lessee shall be entitled to occupy the premises until such time as the owner, his heirs or assigns, shall desire the same or part thereof for building purposes, notice from the owner to the lessee that he desires the premises for building purposes has the effect of terminating the tenancy forthwith, without any notice to quit being given; and on refusal of the lessee to surrender the premises, in compliance with such request, the lessor may at once sue for possession thereof. Fowler v. Tavenner, 34 W. L. R. 307. The effect of a provision in a lease that lessee shall be entitled to oc- S88 Landlord and TbnanT. cupy the premises until the owner shall desire the same for building purposes, is to create a limitation upon the estate of the tenant, and not a condition by which the tenancy could be terminated. lb. Where a lease provided that the lessee should be entitled to occupy the premises until the owner desired the same for building purposes, the fact that the rent was to be paid monthly, in advance, did not fix the duration of the term; but where notice was given by the owner during a month for which the rent was paid in advance, the tenancy would cease, and the lessor and lessee would have to adjust their accounts according to the number of days the lessee had actually occupied the premises. lb. V. Forfeiture of Lease. The failure, through inadvertence, of a lessee who was required by the lease to pay taxes assessed against the property, to pay a half-yearly in- stalment of taxes, resulting in the sale of the property, and subsequent delay in redeeming the tax sale certificate on advice of counsel that the sale was invalid, will not preclude him from maintaining a suit in equity to be relieved from an attempted forfeiture of the lease, to have the tax deed declared void, to restrain proceedings by the lessor to recover pos- session of the property, and to enjoin all the defendants from setting up title adverse to the lease; and in such case an injunction pendente lite held properly granted. Webb v. King, 31 App. D. C. 141; 31 W. L. R. 79. Where the payment of taxes enters into the rental consideration of the lease, equity will relieve from forfeiture for the non-payment of taxes equally with forfeiture for the non-payment of rent as such. lb. Where for the purpose of coercing the lessee to give up the demised property or to afford opportunity for ousting him from it, so that third persons desiring to lease it might consummate their agreement with the owner for a lease of it to themselves, an arrangement was entered into be- tween the lessor and such third persons whereby the attorney of the lat- ter procured a tax deed for the property, a court of equity can grant re- lief to the lessee against all the parties, and a bill for such relief is not multifarious. lb. Forfeiture by a lessee of her lease because of failure to pay taxes as- sessed against the property as required by the lease relieved against where it appeared that the invariable custom of the lessor down to the time of the default had been to demand and receive the amount of the taxes from the lessee and to pay the taxes herself by her own agents, and that for some reason she had failed to make the usual demand for money where- with to pay the taxes in connection with which the default occurred, — the default of the lessee being excusable under the circumstances. Kann V. King, 25 App. D. C. 182 ; 33 W. L. R. 147 ; reversed in 204 U. S. 43. VI. Possessory Actions. Trustees under a deed of trust by way of mortgage cannot upon de- fault, maintain a proceeding to recover possession of the premises under the act of July 4, 1864, ch. 243, Willis v. Eastern T. & B. Co., 169 U. S. 295; 26 W. L. R. 166. To maintain the form of proceeding provided by the act of July 4, Land Office— Larceny. 5^9 1864, the conventional relation of landlord and tenant must exist or have existed between the parties; and a mortgagee holds no such rela- tion to a mortgagor in possession. lb. Purchasers claiming under a sale made by trustees, in accordance with the provisions of an ordinary deed of trust, may maintain the special possessory action provided by § 684, R. S. D. C. Loring v. Bartlett, 4 App. D. C. 1 ; 23 W. L. R. 398 ; Eastern Trust, etc. Co. v. Willis, 6 App. D. C. 375 ; 33 W. L. R. 417 ; reversed in 169 U. S. 295. VII. In General. Concurrent jurisdiction of justice of the peace and the Supreme Court does not extend to proceedings for unlawful detainer by a tenant as against his landlord. Brown v. Slater, 33 App. D. C. 51; 32 W. L. R- 18. As to imputation to lessor of negligence of lessee. Washington Market Co. V. Clagett, 19 App. D. C. 13 ; 39 W. L. R. 807. As to admissibility of parol evidence to explain a latent ambiguity in a lease. See Okie v. Person, 23 App. D. C. 170; 32 W. L. R. 103. As to sufficiency of supersedeas bond on appeal in landlord and tenant proceeding. See Dowling v. Buckey, 37 App. D. C. 305; 34 W. L. R. 386. See Attachment; Equity; Lbase; Peactics and Procedorb. LAND OFFICE. See Public Lands. LANDOWNERS. See Real Property. LARCENY. Larceny is the wrongful and fraudulent taking and carrying away the personal goods of another with felonious intent to convert them to the use of the taker, without the owner's consent; and it is immaterial that the taking was by force and with the knowledge of the party from whom taken. Williams v. United States, 3 App. D. C. 335 ; 32 W. L. R. 457. Where an indictment for larceny states the name of the person from whom it was committed as "Delia" and the proof shows her name to be "Dellie," there is no material variance. Ih. Where an indictment for larceny laid the ownership of the property in a married woman, and it was shown in evidence that she had ac- quired it after separating from her husband, and not from or through him, this will sustain the averment. LeCointe v. United States, 7 App. D. C. 16; 23 W. L. R. 482. An indictment for larceny is sufficiently certain if the thing stolen be designated by the generic name of the class to which it belongs, and a conviction may be had upon proof of the unlawful taking of a specific thing clearly within that class. Nordlinger v. United States, 24 App. D. C. 406; 32 W. L. R. 810. Where moneys, the property of inspectors engaged in investigating the disappearance of moneys addressed to the Patent Office, are placed in two decoy letters directed to that office with the purpose, if the notes were stolen, thereby to detect the thief, and if not, to intercept and re- claim them into the possession of the owners, an indictment for viola- 590 Las Vegas Grant — Leading Questions. tion of the act of March 3, 1875 (13 Stat. 479), will not lie against a party stealing the moneys, because such moneys did not become the property of the United States. United States v. Scott, 27 W. L. R. 291. The intent to steal being a necessary ingredient of the crime of larceny, the question of the intoxication of the accused at the time of the un- lawful taking may sometimes be important in ascertaining whether it was done with that intent. Ryan v. United States, 26 App. D. C. 74; 33 W. L. R. 516. That one accused of the crime of larceny may have been drunk in the ordinary sense of that word, is not a sufficient defense — he must have been so drunk as to be incapable of forming the intent to steal. lb. In a prosecution for larceny, evidence tending to show that the ac- cused was drunk merely, without showing that the intoxication was of the character to make him incapable of forming intent, is properly excluded. lb. In a prosecution for larceny evidence of the intoxication of the ac- cused at the time of the wrongful taking held immaterial where, after his complete return to consciousness, instead of offering or seeking to return the property to the owner, he deliberately attempted to deprive the owner thereof and to convert it to his own use. lb. In a prosecution for larceny, evidence that the accused had in his possession a forged letter containing false statements by means of which he endeavored to obtain assistance from the rector of a church, no con- nection being shown between that offense and the one charged in the indictment, held inadmissible, but its admission not to constitute rever- sible error where the accused, in his own behalf, testified to facts which established his guilt of the offense charged. lb. Where the accused has made a confession of facts showing his guilt the erroneous admission of evidence is of no consequence. lb. As to whether the courts of this District have jurisdiction over the offense of theft committed in a neighboring State because the stolen property is thereafter brought into the District. See Davis v. United States, 18 App. D. C. 468 ; 29 W. L. R. 574. See Second Jeopardy. LAS VEGAS GRANT. The act of Congress of June 21, 1860, construed and held to confirm the entire grant as originally made by Mexico. Smith v. Reynolds, 9 App. D. C. 261 ; 24 W. L. R. 630. LATENT AMBIGUITY. See Ambiguities. LAW GOVERNING. See Contracts. LEADING QUESTIONS. Discretion of court as to allowance. See Kehan v. Wash. Ry. Sf Bl. Co., 28 App. D. C, 108; 34 W. L. R. 451. Allowance of as substantial error. See Shaffer v. United States, 24 App. D. C. 417; 33 W. L. R. 4. Cure of error in allowance of. See lb. See Evidence. IvEASii; — Legacies. 59 i LEASE. Where a lease has been executed by one only of several trustees, re- ceipt of rent by the beneficiary under the trust direct from the lessee, held not to amount to a part performance of the contract so as to bind the trustees. Winslow v. Balto. & O. R. R. Co., 188 U. S. 646. A lease containing a covenant to renew with covenants, terms and conditions similar to those contained in the original lease is completed by one renewal without the insertion of another covenant to renew. Ih. Specific performance of an option to a lessee to purchase will be de- nied where trustees making the lease have no general or absolute power of sale. Ih. As to effect of covenant that building erected by lessee on demised prem- ises shall become, the property of the lessor at the end of the lease, to make the lessee the agent of the lessor. See Albaugh v. Litho-Marble Dec. Co., 14 App. D. C. 113 ; 27 W. L. R. 130. As to nature as personalty of leasehold interest for ninety-nine years with right to purchase. See Bean v. Reynolds, 15 App. D. C. 135 ; 27 W. L. R. 482. Circumstances relieving lessee from forfeiture of lease for failure to pay taxes as required. Kann v. King, 25 App. D. C. 182 ; 33 W. L. R. 147. As to termination of tenancy under lease. See Fowler v. Tavenner, 34 W. L. R. 307. As to imputation to lessor of negligence of lessee. Washington Market Co. V. Clagett, 19 App. D. C. 12 ; 29 W. L. R. 807. As to validity of lease of one railroad to another. See Chesapeake & Ohio Ry. Co. v. Howard, 14 App. D. C. 262 ; 27 W. L. R. 146. As to admissibility of parol evidence to explain a latent ambiguity in a lease. See Okie v. Person. 23 App. D. C. 170; 32 W. L. R. 103. As to power of Congress to authorize Secretary of the Interior to lease certain Indian lands. See Cherokee Nation v. Hitchcock, 187 U. S. 294. The lease of a wharf is not a maritime contract cognizable in a court of admiralty. Upper Steamboat Co. v. Blake, 2 App. D. C. 51; 22 W. L. R. 36. Sufficiency of notice to quit. Byrne v. Morrison, 25 App. D. C. 72; 33 W. L. R. 215. See Equity; Landlord and Tenant; Practice and Procedure;. LEASEHOLDS. Parol evidence is not admissible to establish an exception or reserva- tion of fixtures on premises from the operation of a deed of assignment of a leasehold thereof. Towson v. Smith, 13 App. D. C. 48; 26 W. L. R. 393. As to what passes as fixtures by assignment of. See lb. LEGACIES. Ademption is the extinction or withdrawal of a legacy in consequence of some act of the testator equivalent to its revocation or clearly in- dicative of an intention to revoke. Kenaday v. Sinnott, 179 U. S. 606. Where a testator, after making several specific devises and bequests. 592 Legacies. gave to his widow "ten thousand dollars in registered United States bonds and ten thousand dollars in lawful money, the latter to be derived from my other property not mentioned in the foregoing," and where sub- sequent to the execution of the will ten thousand dollars in registered United States bonds owned by him at the time were sold by him, it was held, that the gift of the bonds was a specific legacy which was adeemed and destroyed by the sale of the bonds. Douglass v. Douglass, 13 App. D. C. 21; 36 W. L. R. 331. As to what constitutes an ademption. See Miller v. Payne, 28 App. D. C. 396; 34 W. L. R. 798. Where a testatrix, believing her estate to be more than sufficient to meet the demands of her will, executed a codicil whereby she gave leg- acies to several persons ; held, that such legacies were valid bequests notwithstanding the estate proved insufficient to meet the demands of the will ; but that such legacies, together with those given by the will, abated proportionately in favor of specific legacies given by subsequent codicils. Brown v. Esterhazy, 25 W. L. R. 478. As to charging real estate of testator with payment of pecuniary leg- acy. See O'Brien v. Dougherty, 1 App. D. C. 148; 21 W. L. R. 637. As to effect on assignee of interest of legatee whose legacy has adeem- ed. See Miller v. Payne, 28 App. D. C. 396 ; 34 W. L. R. 798. As to forfeiture of legacy by breach of condition by legatee as to ac- quiescence in will. See Smithsonian Institution v. Meech, 169 U. S. 398; 26 W. L. R. 486 ; S. C. 8 App. D. C. 490 ; 24 W. L. R. 336. A college authorized by its charter to give instruction in the liberal arts and sciences, and to take and apply bequests, etc., for the use of the college, may take a bequest to be used as an endowment for the pros- ecution of research into colonial history. Speer v. Colbert, 300 U. S. 130; 34 W. L. R. 14. A bequest to Georgetown University held to go to Georgetown College, that being the only incorporated institution with such a title able to take the bequest. lb. As to validity, under § 34 of Maryland Bill of Rights and § 457 R. S. D. C, of gifts to incorporated college or orphan asylum. See lb. A bequest will not be held void for uncertainty unless absolutely neces- sary, and a bequest otherwise valid, of not to exceed a certain amount, held to be for that amount. lb. As to effect of death or resignation of trustees named in a will to super- vise the administration of a bequest. See Ih. As to the legality of placing in trustees discretion as to the application of a bequest. See lb. Conditions annexed to bequests, which lead to probable restraint of marriage, are void. Kennedy v. Alexander, 21 App. D. C. 434; 31 W. L. R. 158. Validity of transfer to father of minors, of property bequeathed to them. Darlington v. Turner, 34 App. D. C. 573 ; 33 W. L. R. 114. Bequests for the care of burial lots are not charitable and are there- fore void as creating perpetuities, unless otherwise provided by statute. Inglehart v. Inglehart, 36 App. D. C. 309 ; 33 W. L. R. 711. What law governs validity of. See lb. Legal Documents — Lex Loci. 593 As to effect of misnomer of corporation to defeat a bequest to it. See Colbert V. Speer, 24 App. D. C. 187 ; 32 W. L. R. 678. As to uncertainty invalidating. lb. As to what constitutes a specific bequest. See Sinnott v. Kenaday, 14 App. D. C. 1 ; 27 W. L. R. 82 ; and S. C, 179 U. S. 606. As to effect on legatees of assenting to sale of bonds bequeathed and receiving proceeds of sale on right to object to the sale. lb. Charge of payments to legatees pending contest of vsfill. Mclntire v. Mclntire, 192 U. S. 116 ; 32 W. L. R. 54. See Devise; Wills. LEGAL DOCUMENTS. As to construction of. See Keely v. Moore, 22 App. D. C. 9; 31 W. L. R. 339. LEGAL HOLIDAYS. Saturday, after 12 o'clock noon, is a half holiday for all purposes. Ocumpaugh v. Norton, 24 App. D. C. 296; 32 W. L. R. 846. A legal holiday occurring within the time is not excluded from the period prescribed for taking an appeal to the Court of Appeals. St. Clair ■s. Conlon, 12 App. D. C. 161; 26 W. L. R. 165. "LEGAL REPRESENTATIVE." As to who is the "legal representative" of a person afflicted within the meaning of § 1073 of Code. See In re Estate of Gault, 32 W. L. R. 726. LEGAL SEPARATION. Legal separation provided by § 966 of Code is synonymous with di- vorce u mensa et thoro. Maschauer v. Maschauer, S3 App. D. C. 87; 32 W. L. R. 66. LEGISLATION. Contracts for services involving the procurement of legislation are void. Owens v. Wilkinson, 20 App. D. C. 51 ; 30 W. L. R. 436. . As to power of courts over. See Lone Wolf v. Hitchcock, 19 App. D. C. 315; 30 W. L. R. 166. See Patents. LEGISLATIVE ASSEMBLY. The act of Aug. 23, 1871, § 21, fixing charges of auctioneers on sales of real estate is void as without the power of the Legislative Assembly. Smith V. Olcott, 19 App. D. C. 61; 29 W. L. R. 766. For acts of Legislative Assembly construed, etc. See Statutes. LEGISLATIVE POWERS. See Congress; Constitutional Law; Corporations. LEGITIMACY. As to legitimacy of children born of slave marriage. See Jennings v. Webb, 8 App. D. C. 43 ; 24 W. L. R. 84 ; Howard v. Evans, 34 App D C 127; 32 W. L. R. 406. LEX LOCI. See Contracts; Marriage. 594 LiBEi,. LIBEL. I. What Constitutes. II. Privileged Communications. III. Who May Sue. IV. Who Liable. V. Measure of Damages. VL Pleading. VTT. Evidence. VIII. Criminal Libel. IX. In General. I. What Constitutes. Any published writing imputing criminal or dishonest conduct to an- other, or tending to disgrace him and bring him into hatred, contempt or ridicule, is a libel, and where it does not appear that the statements or charges are true, or have been justifiably made, malice is presumed. Bailey v. Holland, 7 App. D. C. 184; 23 W. L. R. 813. A newspaper article containing charges which tend to bring the party referred to therein into contempt, ridicule, and disgrace is actionable per se. Washington Times Co. v. Downey, 36 App. D. C. 258; 33 W. L. R. 770. Appellant published in its newspaper a report of a murder committed in another city, the article first locating the scene of the murder at a house "next door tcr the Tivoli, a gambling resort." Later, the article stated that evidence had been secured "that the murder was committed in the Tivoli building. The proprietor of the Tivoli is M. W., alias 'Fa- ther W.' (the plaintiff), who is said to be well known in Washington." The rest of the house was stated to be occupied by notorious Tivoh gamblers and as a disorderly house. Held, that the article was libelous per se, and that it was not a privileged communication. Washington Post Co. V. Welh, 27 App. D. C. 495; 34 W. L. R. 418. A newspaper article charging one with having testified falsely before a committee of Congress from improper motives and in violation of his duty to his former employer is libelous per se. Wash. Gas Light Co. v. Lansden, 9 App. D. C. 508; 24 W. L. R. 807. A libel is presumably injurious and, in the absence of legal excuse, gives a right to recover damages irrespective of the intent of the defendant, even though he believed his statements to be true and was actuated by honest or commendable motives in the publication. lb. Charges contained in a letter written by the general superintendent of a steamboat company, to the effect that the captain of one of its steam- ers, who had been discharged from its service, was grossly wanting in ef- ficiency and capacity, are libelous ; and where the letter is written within the scope of his authority as superintendent, or his act is subsequently ratified by the company, it will be liable. Such letter is not constituted a privileged communication merely by the fact that it was in response to a letter from a friend of the discharged captain, who requested his rein- statement, and who had recommended him for another position. Norfolk & Wash. Steamboat Co., v. Davis, 12 App. D. C. 306; 26 W. L. R. 261. II. Privileged Communications. For a communication to be held privileged within the law of libel, the LiBEi,. 595 person addressed as well as the party making the communication, must have an interest to be affected, or must occupy such an attitude to- wards the matter or the communicant as to render it a matter of legal or moral duty. Bailey v. Holland, 7 App. D. C. 184; 33 W. L. R. 813. Reports and communications made by a public officer to his superior in the course and discharge of official duty, are privileged, and the question of motive or good faith is immaterial. De Armond v. Ainsworth, 34 App. D. C. 167. A false statement that the plaintiff had unlawfully interfered with mail matter intended for the defendant is libelous per se, as imputing the com- mission of a criminal offense; and its publication in a periodical issued by defendant is not privileged because it purports to have been taken from a bill in equity filed by the defendant himself. Wills v. Jones, 13 App. D. C. 483; 37 W. L. R. 19. Scandalous and defamatory matter inserted in a pleading, but having no reference or relation to the subject matter of controversy, is not privileged, and the party injured may maintain an action therefor. Harlow v. Carroll, 6 App. D. C. 138 ; 33 W. L. R. 450. III. Who Wtey Sue. One of several partners may maintain an action for a libel uttered in respect of the partnership business without joining his copartners, and recover for all the injury sustained by him from the publication of the libel. Wills v. Jones, 13 App. D. C. 483 ; 37 W. L. R. 19. Under the act of Congress of June 1, 1896, a married woman may maintain a suit in her own name, without joining her husband, for a libel published concerning her with reference to a business in which she is engaged. Jh. IV. Who Liable. A corporation may be held responsible in an action for the publication of a libel. Gas Light Co. v. Lansden, 172 U. S. 534, L. C. 9 App. D. C. 508 ; 24 W. L. R. 807. A corporation is not liable for the act of its general manager in writ- ing a personal letter, which he copied in the official copy-book of the corporation, and which was used as the basis of a libel on the former manager of the company. lb. One who writes a letter which is used as the basis of a libel, with the intention that it should be so used, is not relieved of liability because the libel as published contains matters not included in the letter. Ih. One who procures the publication and circulation of a newspaper article which is libelous per se, is liable to the person defamed, and it is imma- terial who wrote the article. Pickford v. Talbott, 38 App. D. C. 498- 35 W. L. R. 78. A principal is irresponsible for a libelous newspaper article written by his agent if the agent's general authority was such as fairly embraced authority to express in the principal's behalf what the article contains lb. A bureau officer giving or loaning to another a Senate document in which is incorporated a report made by him charging an applicant for 596 Libel. a medal of honor with fraud, is not liable as for the publication of a libel. De Armond v. Ainsworth, 24 App. D. C. 167. V. Measure of Damages. Mental suffering, shown to be the natural and direct result of de- famatory words spoken or published in writing or print, constitutes an element of recoverable damages. Washington Times Co. v. Downey, 26 App. D. C. 258; 33 W. L. R. 770. Evidence that, as the result of the publication of a libel, the plaintiff was not able to work as before at her occupation as a laundress and had to obtain help in her work because of her weakened condition, held to justify an instruction authorizing the jury, in estimating damages, to in- clude such as the plaintiff may have sustained in her occupation and calling as a laundress. lb. In an action for libel, where, notwithstanding an instruction authoriz- ing the jury to award punitive damages if they found the publication was made recklessly and carelessly was refused, and the jury instructed to render a verdict for compensatory damages only, a verdict in favor of the plaintiff for $6,000 was returned, held that the verdict was excessive, and a motion by the defendant for a new trial granted. Seawall v. A. S. Abell Co., 34 W. L. R. 195. In an action for libel, an instruction is proper that, if the jury find for plaintiff, they should award him such damages as will fairly and fully compensate him for the injury suffered, including injury to him in his occupation or calling, and the mental suffering caused by the publica- tion of the libel, especially when accompanied by instructions denying his right to special and exemplary damages. Norfolk & Wash. Steamboat Co. V. Davis, 12 App, D. C. 306 ; 26 W. L. R. 261. Where a libel is actionable per se, the jury may take into consideration, in awarding damages, not only the injury that has arisen, but that which may thereafter arise from publication of the libel. lb. In estimating damages for libel the jury may consider the language of the libel, so far as inspired by defendant, the nature of the charges and imputations, the publicity given thereto, and plaintiff's mental suf- fering, especially where they are instructed against awarding punitive damages. Wash. Gas Light Co. v. Lansden, 9 App. D. C. 508 ; 24 W. L. R. 807. VI. Pleading. Where a libel is actionable per se, the action may be maintained without alleging or proving special damage. Norfolk & Wash. Steamboat Co., V. Davis, 12 App. D. C. 306 ; 26 W. L. R. 261. VII. Evidence. Evidence tending to prove the truth of alleged libelous words is in- admissible under a plea of the general issue, either in bar of the action or in mitigation of damages. Pickford v. Talboit, 28 App. D. C. 498; 35 W. L. R. 78. In an action for a libel, testimony of the plaintiff to the effect that she had no parents living, but was dependent on her own exertions, held properly admitted, when offered not for the purpose of showing her ticHNSES. 597 poverty in order to ask increased damages on that account, but as rele- vant to the charge that impaired capacity to labor was an item of the actual damages resulting from the injury. Washington Times Co. v. Downey, 36 App. D. C. 358; 33 W. L. R. 770. In an action by a divorced wife against her former husband, with whom prior to divorce she had been in partnership in a business which upon the divorce had been dividfd between them and thereafter conducted separately, for a libel uttered by him concerning her in reference to such business, the divorce proceedings are admissible in evidence to explain the relations of the parties. Wills v. Jones, 13 App. D. C. 483; 37 W. L. R. 19. In an action of libel against several defendants evidence of the wealth of one of them, offered as bearing on the allowance of exemplary dam- ages, is inadmissible. Gas Light Co. v. Lansden, 173 U. S. 534, reversing 9 App. D. C. 508. Intention to furnish information for the publication of a libel cannot be inferred from the mere fact that a memorandum of figures which are tised for that purpose, is furnished. lb. To maintain an action for libel for scandalous and defamatory matter inserted in a pleading, proof must be made of the identity of the plain- tiff with the person of whom the libellous matter was uttered. Identity of names is not sufiScient to make out a prima facie case. Harlow v. Carroll, 6 App. D. C. 138 ; 33 W. L. R. 450. VIII. Criminal Libel. A scurrilous communication addressed to the Commissioners of the District, charging certain officials of the District with misfeasance in of- fice, copies of which communication were also sent to the persons named or referred to in it, held not privileged, but a criminal libel. Raymond v. United States, 35 App. D. C. 555; 33 W. L. R. 514. IX. In General. As to practice relative to granting privilege of suing in forma pauperis. See E.V parte Harlow, 3 App. D. C. 303. See Admiralty; Privhegud Communications. LICENSES. A person professing a knowledge of the science of medicine and to be an expert in the treatment of alcoholism, who, without having pro- cured the license required by § 13 of the act of June 3, 1896 (39 Stat. 198, 301), to be obtained by persons practicing medicine, etc., or publicly professing to do so, obtains patients, diagnoses their cases, decides that they are suffering from a malady for which he has discovered or com- pounded a remedy, prescribes and furnishes that remedy, and employs other physicians to take immediate charge of the patients and administer the same, is guilty of a violation of the provisions of the statute and amenable to the punishment prescribed thereby. Springer v. Dis. of Col, 33 App. D. C. 59; 33 W. L. R. 20. Of physicians ; power of board of medical supervisors to revoke license under act of June 3, 1896. Csarra v. Medical Supervisors, 35 App. D. C. 443; 33 W. L. R. 470. 59^ LiCBNSEg. As to revocation of license of physician. See Csarra v. Medical Super- visors, 24 App. D. C. 251 ; 32 W. L. R. 744. As to duty of superintendent of insurance to issue the general in- surance license provided for by § 654 of Code. See Drake v. Bates & Co., 36 W. L. R. 140. As to power of Congress to discriminate in the imposition of license taxes on brokers. See Lappin v. Dis. of Col., 22 App. D. C. 68; 31 W. L. R. 308. As to constitutionality of act of Congress of July 1, 1902, imposing license fees on brokers. See lb. The Commissioners of the District of Columbia are without power to revoke a plumbing license as a penalty for violation of plumbing regula- tions. Daly V. Macfarland, 28 App. D. C. 552 ; 35 W. L. R. 81. A license to pursue an occupation of master plumber is property and the right to revoke the license must clearly appear or be held not to exist. Kerr v. Ross, 5 App. D. C. 241; Daly v. Macfarland, 28 App. D. C. 552; 35 W. L. R. 81. Paragraph 32 of § 21 of the act of the Legislative Assembly of this District of Aug. 23, 1871, as amended by the act of Congress of March 3, 1891 (26 Stat. 841), requiring dealers in second-hand personal property to obtain a license before engaging in such business, is valid and operative as a municipal regulation. Lasley v. Dis. of Col, 14 App. D. C. 407 ; 27 W. L. R. 324. One dealing principally in new bicycles must obtain license to entitle him to buy and sell second-hand bicycles and other articles. lb. Electric vehicles not within class of vehicles subject to license tax im- posed by subsection 26 of the act of Legislative Assembly of Aug. 23, 1871. Electric Vehicle Co. v. Dis. of Col, 19 App. D. C. 462. The owner of a steam dredge who knowingly employs an unlicensed steam engineer to run an engine thereon used for dredging and loading and unloading sand scows on the Potomac River, violates the act of Congress of Feb. 28, 1887, and is subject to the penalty provided thereby. Smoot V. Dis. of Col, 23 App. D. C. 266 ; 32 W. L. R. 183. As to effect of act of March 3, 1893 to revoke liquor licenses granted under prior law. See Bush v. Dis. of Col, 1 App. D. C. 1; 21 W. L. R. 371. A social club furnishing liquors to its members, to be drunk on the premises and for which they are charged, but without profit to the club, is liable to the license fee prescribed by the act of March 3, 1893. Army & Navy Club v. Dis. of Col, 8 App. D. C. 544 ; 24 W. L. R. 331. Proprietors of restaurants located in the capitol building are not re- quired to take out licenses under the act of March 3, 1893. Page v. Dis. of Col, 20 App. D. C. 469; 30 W. L. R. 758. As to liquor license being subject of conveyance by deed of trust. See Sullivan v. Bailey, 21 App. D. C. 100; 31 W. L. R. 111. As to application of act of Congress of July 1, 1902, imposing upon brewers and their agents a license tax. See Beitzel v. Dis. of Col, 21 App. D. C. 49; 31 W. L. R. 82. Storage of gasoline without a license constituting a violation of § 3, Art. Liens. 599 § of Police Regulations. Cahill v. Dis. of Col, 36 App. D. C. 163 ; 33 W. L. R. 759. Validity of police regulation requiring license for storage of inflam- able oils. lb. As to power of Commissioners of District to require a license for the storage of gasoline. See Dis. of Col. v. Weston, 23 App. D. C. 363; 33 W. L. R. 284. In a suit by the Commissioners to compel the removal from a public avenue of a structure, the license for which had been revoked, an ob- jection by the defendant that the license issued to her was signed by the In- spector of Buildings and not by the Commissioners, is untenable. Under their authority to make regulations for the control of stands and of private buildings, the Commissioners may act in such matters through his agency, and licenses issued by him under their orders or with their approval become their ofBcial acts. McBride v. Ross, 13 App. D. C. 576; 27 W. L. R. 402. In an action to recover for injuries to plaintiff's house caused by blast- ing in its vicinity it is competent for the plaintiff to show that the house was owned by him before it was placed on the lot on which it stood, and that he placed it upon the lot by a parol license from the owner thereof, which authorized him to continue in the ownership of it and to remove it, if he so desired, at any proper time thereafter, and that this license had been recognized and continued in force by the heirs of the grantor. Jackson V. Bmmons, 19 App. D. C. 250; 30 W. L. R. 72. While the death of the grantor of a parol license to use land made such license determinable by his heirs, proof that the licensee had continued to pay to the heirs rent for the ground and not for the house, which he owned and which was on the land under the license, precisely as he had done to the original grantor will justify an inference by the jury that the license had been renewed or continued by the heirs. 76. As to imputation to license or of negligence of licensee. Washington Market Co. v. Clageti, 19 App. D. C. 13; 39 W. L. R. 807. The rights of a licensee are not destroyed by a subsequent transfer of the patent. Whitson v. Columbia Phonograph Co., 18 App. D. C. 565 ; 39 W. L. R. 804 ; 98 O. G. 418 ; C. D. 1903, p. 497. See also Contracts ; Intoxicating Liquors ; Patents ; PoLice Powbr ; Taxation and Assessment. LIENS. Excludes Mechanics' Liens. I. Attachment. II. Attorney's. III. Equitable. IV. Judgment. V. Landlord's. VI. Mortgage. VII. Vendors. VIIL Generally. • L Attachment. As to priority under laws of Maryland of attachment lien acquired prior to the filing of bond by an assignee for the benefit of creditors. See Keane v. Chamberlain, 14 App. D. C. 84; 37 W. L. R. 98. 6oQ LlENSi II. Attorney's. As to right of attorney to lien for fees on property recovered ioi client. See Willoughhy v. Mackall, 1 App. D. C. 411 ; 21 W. L. R. 748. As to lien of attorney-at-law on money in his possession collected for his client, for fees for services. See Meloy v. Meloy, 24 App. D. C. 239; 32 W. Iv. R. 714. As to superiority of lien of attorney for fees. See Hutchinson v. Worthington, 7 App. D. C. 548 ; 24 W. L. R. 97. III. Equitable. Equity will not impose an equitable lien upon land in favor of one who makes improvements thereon, knowing the title is in another. Market Co. v. Dis. of Col, 172 U. S. 361, affirming 6 App. D. C. 34. Where at the time of the execution of a promissory note for an exist- ing indebtedness the maker agrees in writing with the payee that on de- fault in payment he would execute a deed of trust on all his real estate as security for the payment of the note, such agreement constitutes an equitable lien on such property enforceable in equity. Woarms v. Ham- mond, 5 App. D. C. 338; 23 W. L. R. 131. As to right of one loaning money to wrongful possessors of real property, to equitable lien on the land for the value of improvements placed thereon with the money loaned. See Armstrong v. Ashley, 22 App. D. C. 368; 31 W. L. R. 439; affirmed in 204 U. S. 272. G and R were joint owners of a drug store, the partnership agreement reciting that R's half interest was subject to a lien in favor of G for the purchase-money. On a sale by G of his remaining half interest to C, and as part of the consideration for such sale, it was agreed by R, assented to by C, that he would execute a deed of trust of his interest to secure his debt to G, its execution to be simultaneous with that of the bill of sale to C. The delivery of the bill of sale was procured by C, and there- after, on his obijection, R refused to execute the deed of trust, and a few weeks later C purchased R's interest. Held, that the agreement gave G an equitable lien on R's interest, enforceable as to such interest against both R and C ; that the lien contemplated was a continuing one upon the undivided interest of R so long as the business should be car- ried on or the debt to G remain unpaid ; and that such lien was superior to that of a judgment creditor of C, who, having procured judgment on a claim against C individually and after suit brought by G to establish his lien, was charged with notice of such lien. United States v. Grootne, 13 App. D. C. 460; 26 W. L. R. 802. A decree giving to G one-half the net proceeds of a sale of the busi- ness had under an execution upon the judgment in pursuance of a stipu- lation between G and the judgment creditor, affirmed. lb. Complainants were employed by defendant, who had a contract with certain Indians to collect claims against the Government, to assist him in the work, defendant agreeing that their fees should be satisfied out of the fees due him under the contract and constitute an interest therein to that extent. A controversy as to what, if any, compensation com- plainants were entitled to was referred to arbitrators, who awarded them $3,300. Defendant collected a considerable proportion of his fees and LiEnS. 6oi femoved the money from this District. Complainants thereupon filed suit for an injunction and to have a receiver appointed to collect the residue. Held, that defendant's agreement created a charge against the fees due him under the contract enforceable as an equitable assignment or lien; that the award of the arbitrators wras a sufficient foundation for the enforcement of such equitable lien against a fund within the juris- diction of the court ; that such lien was not merged in the award, the only question submitted to arbitration being what, if any, amount was due complainants ; and such lien remained enforceable for the amount of the award; that the defense that the agreement creating the lien was pro- hibited by § 3477, R. S., is not available to the defendant in this suit, the United States having no interest whatever' in the proceeding. Sanborn V. Maxwell, 18 App. D. C. 245; 39 W. L. R. 607. A creditor released his claim against the estate of a decedent on the widow and son giving him their sealed note for the amount which pro- vided that it should be a lien on their shares in the estate, real and personal. The instrument was duly acknowledged and recorded. Sub- sequently, in proceedings to which he was not a party, the real estate was sold, and the proceeds applied to the payment of a claim preferred by the widow as a creditor of the estate, and the residue, an insignificant sum, distributed to the son and other heirs in equal shares. In a proceeding by such creditor against the obligors in the instrument and the pur- chasers at the sale, claiming an equitable lien on the property, held, that the effect of the record of the instrument was to charge the purchasers only with notice that the distributive shares of the obligors were sub- ject to an equitable lien in favor of complainant; and that, as against third parties, such instrument did not give to complainant a lien upon the interest of the widow as a creditor of the estate so far as to charge the real estate in the hands of the purchasers with his claim as an equitable lien, but was only such as could affect her right as widow, and as she took nothing as widow, there was nothing upon which the lien could at- tach. Chisolm V. Cisxll, 13 App. D. C. S03; 26 W. L. R. 482. The equitable right of a deed of trust creditor as to property omitted by mistake in the description, is superior to that of a judgment creditor of the mortgagor who had knowledge of facts and circumstances show- ing intent of parties to convey entire property. Manogue v. Bryant, 15 App. D. C. 245; 27 W. L. R. 478. The filing of a creditor's bill and service of process creates a lien upon the property of the judgment debtor. Ohio Nat. Bank v. Berlin, 26 App. D. C. 218 ; 33 W. L. R. 726 ; May v. Bryan, 17 App. D. C. 392 ; 29 W. L. R. 113 ; Babbington v. Washington Brewery Co., 13 App. D. C. 527 ; 27 W. L. R. 22; Weightman v. Critic Co., 4 App. D. C. 136; 22 W. L. R. 665; Young v. Kelly, 3 App. D. C. 296; 22 W. L. R. 313. Such lien cannot be defeated by any subsequent disposition of the property. May v. Bryan, 17 App. D. C. 392 ; 29 W. L. R. 113. Such lien continues until the suit is disposed of and is not affected by the expiration of the lien of the judgment by lapse of time or other circumstance not having direct relation to the suit in equity. Laches in prosecuting the suit in equity will not affect it. Young v. Kelly, 3 App. D. C. 296 ; 22 W. L. R. 313. 6o2 Liens. A judgment cteditor, by filing a bill in equity to reach an equitable in- terest of his debtor in personal property, acquires a lien on such property which is superior to and takes precedence of all liens, incumbrances and assignments subsequently created or made, including claims of creditors obtaining judgments subsequent to the filing of the bill and who obtain leave to intervene and become parties complainant in the suit in equity. Babbington v. Washington Brewery Co., 13 App. D. C. 527; 37 W. L. R. 22. As to waiver by one filing an original creditor's bill of right to object that priority could not be acquired by a cross-bill. See Gottschalk v. Live Oak Co., 7 App. D. C. 169 ; 23 W. L. R. 795. A judgment creditor on filing a bill for the vacation of alleged fraudu- lent deed made by his debtor thereby acquires a lien on the property, which becomes fixed on final decree in his favor. Fulton v. Fletcher, 12 App. D. C. 1. The usual method of enforcing a lien in equity is by a sale of the property. Pleasants v. Fay, 13 App. D. C. 237 ; 26 W. L. R. 628. Evidence to establish equitable lien on property for the amount of pur- chase price advanced by one of two purchasers. Long v. Scott, 24 App. D. C. 1; 32 W. L. R. 326. The Bankruptcy Act of 1898 does not affect the equity jurisdiction of the Supreme Court of the District to entertain a suit to establish an equitable lien against the real estate of a bankrupt; and it is the duty of the bankruptcy court to give due effect to a decree declaring such lien. Crosby v. Ridout, 27 App. D. C. 481; 34 W. L. R. 320. IV. Judgment. A judgment creditor filing a bill in equity to subject debtor's equit- able interest to the satisfaction of his judgment, is a "creditor" within the meaning of § 499, Code D. C, and is entitled to priorty over a grantee or assignee from the judgment debtor whose deed, although dated prior to the filing of the bill in equity, was not filed for record until thirteen days thereafter, and after service of process had on the judg- ment debtor. Ohio National Bank v. Berlin, 26 App. D. C. 218; 33 W. L. R. 726. A judgment, being but a general lien, is subordinated to the superior equities of a prior specific lien; and if property be charged in equity before the entry of the judgment, the judgment will not affect such charge. Crosby v. Ridout, 27 App. D. C. 481; 34 W. L. R. 320. The lien of a judgment upon real estate is not dependent upon the execution and the fact that the judgment is dormant and not execution- able does not affect its existence. MacCarthy v. Tichenor, 29 W. L. R- 443. Where immediately upon the rendition of a verdict in an action for damages for personal injuries, plaintiff executed an assignment of the judgment and an order to the clerk to enter the judgment to the use of the assignee, which was done on the same day, such assignee held en- titled to priority over an attaching creditor who caused a writ of at- tachment to be issued and served on the defendant in the judgment on the same day. Hutchinson v. Brown, 8 App. D. C. 157; 34 W. L. R. 219. LiEnS. 603 Operation of lien of judgment provided by § 1314, D. C. Code. Ohio National Bank v. Berlin, 36 App. D. C. 318; 33 W. L. R. 736. Effect as lien of judgment of justice of the peace. See Davis v. Harper, 14 App. D. C. 463; 27 W. L. R. 494. V. Landlord's. A landlord having in his possession property of his tenant as security for payment of the rent is entitled to maintain a proceeding to establish his right thereto as against a judgment creditor of the tenant who has caused an execution upon the judgment to be levied on said property; and he is not precluded from doing so by becoming a purchaser of the property at the marshal's sale. Brown v. Petersen, 35 App. D. C. 359 ; 33 W. L. R. 310. A written agreement by a tenant that certain chattels which were em- braced in a deed of trust might be sold to satisfy certain arrearage of rent to which the deed did not extend, held to create an equitable lien on such chattels in favor of the landlord, which though unrecorded took pre- cedence over the claims of judgment creditors whose debts existed at the time of such written agreement and who had notice thereof before obtaining judgment; but such hen was not entitled to priority as to so much of such judgments as embraced credits given by them after the mak- ing of the agreement and before they had notice thereof. Hume v. Riggs, 12 App. D. C. 355. As to accrual of lien for rent. See The Richmond v. Cake, 1 App. D. C. 447; 21 W. L. R. 819. As to exemption from lien. See lb. As to waiver of lien on chattels. See lb. As to method of enforcing lien for rent. See lb. Liens created by local statutes, such as that of a landlord on the chattels of the tenant on the premises, are not secured debts within the meaning of the Bankruptcy Act. Matter of Johnston Co., 30 W. L. R- 118. VL Mortgage. W. on purchasing personal property of H. gave a deed of trust for the purchase-price. W. thereupon conveyed the property to a corpora- tion, which immediately and before the deed of trust to secure H. was recorded, conveyed the property in trust to secure bondholders. Held, that the rights of the bondholders without notice of the deed of trust to H. were superior to the rights of H. Weightman v. Critic Co., 4 App. D. C. 136; 33 W. L. R. 665. The wife of W. who was the holder of some of the bonds, purchased with her own money sent direct to the secretary and treasurer of the company, was not chargeable with notice of the deed of trust to H. through the knowledge of her husband. Where, however, W. purchased stock in his own name with money advanced by the wife, who seemingly intended the investment as a gift to him, and subsequently bonds to cover the amount of such stock were issued to a trustee in trust for the wife, held, that the wife was not an innocent holder of the bonds, for, even if regarded as the real owner, she was chargeable with the knowledge of her husband. lb. 6o4 Liens. The claim of priority for an equitaBle' lien by a judgment creditor on property the description of which was by mutual mistake not included in his bill, over a judgment rendered subsequent to the execution of the deed of trust upon the strip of land in controversy, because founded in an equity for the correction of the trust deed, dependent upon parol evidence for its establishment and therefore incapable of record under the provisions of the act of CoBgress of April 29, 1878, relating to' the effect of unrecorded conveyances as to subsequent purchasers and cred- itors, denied. Manogue v. Bryant, 15 App. D. C. 245 ; 37 W. L. R. 478. The equitable right of a deed of trust creditor is superior to the equity of a judgment creditor where the judgment creditor's knowledge of the premises led him to the admitted belief that the deed of trust embraced, and was intended by the parties to embrace, all of the ground occupied by the building. Ih. As to whether under the act of Congress of April 29, 1878, the equity of a grantee in a deed for the correction of a mistake in the description of property, dependent upon parol evidence for its establishment, should have priority over a judgment rendered subsequent to the deed of trust containing the misdescription. See lb. As to extention of lien of deed of trust to property excluded from deed through misdescription by mutual mistake. See lb. A purchase-money mortgage is not subordinated to liens for labor and materials by an agreement between the parties thereto and an associa- tion loaning money to construct buildings ; the mortgage to the associa- tion is given priority over the first mortgage. Anglo-American S. & L. Ass'n V. Campbell, 13 App. D. C. 581 ; 27 W. L. R. 2. Lien of trustee on proceeds of insurance existing at the time of the execution of the deed of trust. See Brown v. Commercial Fire Ins. Co., 21 App. D. C. 325 ; 31 W. L. R. 206. VII. Vendor's. Where an incumbrance, supposed by both vendor and vendee to sub- sist against property and assumed by the vendee as part of the purchase- money, has in fact been released, the vendor will have an equitable lien for that part of the purchase-money represented by the supposed incum- brance. Such lien would attach even in the absence of a special agree- ment in the conveyance as to assumption. Pleasants v. Fay, 13 App. D. C. 237 ; 26 W. L. R. 628. As to effect of want of proper parties to suit to have vendor's lien declared. See Van Hook v. Frcy, 13 App. D. C. 543 ; 27 W. L. R. 39. VIII. Generally. A person in possession of property under a lien is the owner of it against all the world and even against the actual owner until his lien is paid ; and no one has any right to disturb his possession without pre- vious payment of his claim. Brozvn v. Petersen, 25 App. D. C. 359; 33 W. L. R. 310. As to nature of protection given to those furnishing material to gov- ernment contractors by the act of Congress of August 13, 1894. See Standard Oil Co. v. City Trust &c. Co., 21 App. D. C. 369; 31 W. L. R. 162. Life Estate — Limitation of Actions. 605 As to extent of carriers' liens for freight charges. See Beasley v. Balto. & Pot. R. R. Co., 27 App. D. C. 595 ; 34 W. L. R. 430. As to consolidation of causes to establish liens on same fund in court. See Butler v. Strong, 3 App. D. C. 80 ; 22 W. L. R. 272. As to lien attaching to land on filing of petition for condemnation. See Wilkinson v. Dis. of Col., 22 App. D. C. 289 ; 31 W. L. R. 507. See also Admiralty ; Claims Against the Unitbd States ; Mechanics' Liens ; Mortgages and Deeds of Trust ; Trusts and Trustees. LIFE ESTATE. See Estates. LIFE INSURANCE. See Beneficial Associations; Insurance. LIMITATION OF ACTIONS. I. Application Generally, n. Application in Equity. III. Disabilites Affecting Running of Period. IV. Commencement of Action Affecting. V. Fraudulent Concealment of Cause of Action. VI. Death and Administration. VII. Flight of Accused Affecting. VIII. Acknowledgment, New Promise, and Part Payment. IX. Waiver of Right to Plead Bar. X, In General. I. Application Generally. The period of limitation begins to run only from the time a cause of action accrues, and not from the time a liability is incurred or an obliga- tion executed. Sis v. Boarman, 11 App. D. C. 116; 25 W. L- R. 431. The statute of limitations begins to run to an action by the assignee of an insolvent corporation to recover a call for unpaid subscription to stock made under direction of the court, from the date of such order of court. Glenn v. Sothoron, 4 App. D. C. 125 ; 22 W. L. R. 649. The cause of action for unlawful exaction of a license tax accrues at the time of payment and the statute begins to run from that time, even though the illegality may not have been then known. Cleland v. Dis. of Col, 35 W. L. R. 278. The statute of limitations cannot run against a claim until there is someone in existence who can sue and be sued, and so held that where obligees in a bond cannot sue at law because one of them is the sole obligor, the statute does not begin to run until the assignment of the bond. Myers v. Cottrell, 25 W. L. R. 720. On a petition by the holder of one of two notes secured by mortgage, for leave to participate in the proceeds of sale under a decree in a foreclosure suit brought by the holder of the other note, the bar of limitations is not that applicable to the case of an action on the note, but that which applies to the remedy for the enforcement of an equitable right under the mortgage; and the same period that would bar an eject- ment is required. Cropley v. Byster, 9 App. D. C. 372; 24 W. L. R. 829. Where a broker employed to sell real estate makes a nominal sale to a party who subsequently assigns his purchase to another with whom the owner closes a sale, the statute runs as against the broker's claim to commissions only from the time of the consummation of the latter sale. Ross V. Pickling, 11 App. D. C. 443 ; 25 W. L. R. 806. 6o6 Limitation of Actions. Where a sale is made by an agent to a nominal purchaser, by whom a bona fide sale is subsequently made to a party able and willing to com- plete the purchase, the agent in the completion of the. latter transaction acting for the owners, who, though at first approving the sale, subse- quently refuse to complete it, the statute runs against the agent's claim to commissions from the time of such refusal. lb. The act of limitations of Maryland of 1715, ch. 23, in force here, operates not to extinguish a debt on simple contract, but only to bar the remedy ; and the action must be brought on the original cause of ac- tion and not on any new promise or acknowledgment, which only restores the remedy. Boogher v. Byers, 10 App. D. C. 419; 25 W. L. R. 205. Lapse of time alone is no ground for the joint application of the statute of limitations and the doctrine of laches where they would conflict with each other and the equitable doctrine would reduce the statutory period of limitations. Sis v. Boarman, 11 App. D. C. 116; 25 W. L. R. 431. Congress, in legislating for this District, has power to require, as to existing causes of action, that suits for their enforcement should be barred unless brought within a period less than that prescribed when the cause of action accrued. Givin v. Brown, 21 App. D. C. 295; 31 W. L. R. 238. It is essential, however, that such statutes allow a reasonable time after they take effect for commencement of suits upon existing causes of action, though what shall be considered a reasonable time must be settled by the judgment of the legislature ; and the courts will not inquire into the wisdom of its decision unless the term allowed is so manifestly insuf- ficient that the statute becomes a denial of justice. lb. Where an action of ejectment was brought two years before the expira- tion of the period of ten years allowed by the saving proviso of the statute 21 James I, and within less than two years after the repeal of said proviso by the act of March 3, 1899, the question whether the action was brought within a reasonable time after the repeal of the said saving proviso is one of law necessarily involved in the action of ejectment and to be determined therein. Ih. As to whether the statute of limitations will run against the District in favor of one claiming title by adverse possession of a portion of a public highway outside the boundary of the city of Washington. See Dis. of Col. V. Krause, 11 App. D. C. 398 ; 25 W. L. R. 812. The statute of limitations held to run against the Rockville & Washing- ton Turnpike Co. in favor of one claiming title by adverse possession to a portion of the Seventh Street Road. lb. It is unnecessary to plead the statute of limitations in ejectment, when the general issue has been interposed. Morris v. Wheat, 1 App. D. C. 237; 21 W. L. R. 654. In an action of trespass, where it appeared there had been three separate and distinct trespasses, two of which were barred by the statute of limitations, held that the recovery was properly confined to the damage sustained by reason of the third trespass ; and evidence as to personal injuries sustained by plaintiff's wife from one of the other trespasses properly excluded. Jackson v, Emmons, 25 App. D. C- 146; 33 W- L, R, 165, Limitation o^ Actions. 607 Where a debt is payable in independent instalments the right of action accrues upon each as it matures, and the bar of the statute of limitations begins to run accordingly. Wash. Loan & Trust Co. v. Darling, 21 App. D. C. 133; 31 W. L. R. 129. The statutory period applicable to actions on simple contracts applies to an action on a contract which has the effect of a specialty in the place where made, but which is a simple contract in this District. Willard v. Wood, 1 App. D. C. 44; 21 W. L. R. 579. Where a statute gives a right of action or proceeding which did not exist at the common law and fixes the time within which the right may be enforced, the time so fixed becomes a limitation or condition on such right, and will control, no matter in what forum the action may be brought. In re Second Street Extension, 36 W. L. R. 16. Section 1267, Code D. C, as amended, has no other effect than to bar an action upon a judgment of another State that is barred, at the time of the commencement of the action in this District, by the laws of that State; and unless so barred by the laws of that State, there is no statutory period applicable to it in an action brought thereon in this Dis- trict, and the only available defense founded on the lapse of time is that furnished by the common law, which raises a presumption of payment after twenty years. McKay v. Bradley, 26 App. D. C. 449; 34 W. L. R. 33. Where, at the time the Code went into effect, more than twelve years had elapsed since the rendition of a foreign judgment, and a plea of the statute of limitations formerly in force in this District would have been available to the judgment debtor, the right to plead the statute in bar of an action thereafter brought in this District on such judgment is pre- served to the defendant by the saving clause of § 1638, Code D. C, whereby it is provided that "the repeal by the preceding section of any statute, in whole or in part, shall not affect any right accruing or accrued, but shall continue and may be enforced in the same manner as if such repeal had not been made." lb. A suit for services is barred after the expiration of three years from the time the right of action accrued. Boogher v. Roach, 25 App. D. C. 324 ; 33 W. L. R. 326. As to the running of the statute of limitations in case of conspiracy. See Lorens v. United States, 24 App. D. C. 337 ; 32 W. L. R. 822. II. Application in Equity. Statutes of limitations, wherever applicable, are equally binding in equity as at common law. Sis v. Boarman, 11 App. D. C. 116 ; 25 W. L. R. 431. The enforcement in equity of mortgages and deeds of trust by way of mortgages of real estate is governed by the law of limitations applicable to possessory actions at common law for the recovery of real estate, which in this jurisdiction is the period of twenty years prescribed by the Statute of 21 James I, ch. 16. lb. A court of law has concurrent jurisdiction with a court of equity of a suit for an accounting; and where a plea of the statute of limitations would be a bar to the demand at common law, it would be held equally 6o8 Limitation of Actions. a bar in equity. Patten v. Warner, 11 App. D. C. 149 ; 35 W. L. R. 448. A court of equity of concurrent jurisdiction with one of law is bound by the statute of limitations which governs an action at law. Baker v. Cum- mings, 169 U. S. 189, reversing 4 App. D. C. 330 and 8 App. D. C. 515. As to application by equity of statute of limitations. See Willard v. Wood, 1 App. D. C. 44; 31 W. L. R. 579; Wash. Loan & T. Co. v. Dar- ling, 21 App. D. C. 133; 31 W. L. R. 139. As to bar of right of holder of note secured by mortgage to participate in proceeds of sale of the mortgaged property under decree in foreclosure proceeding brought by holder of another note secured by the mortgage. See Cropley v. Eyster, 9 App. D. C. 373 ; 24 W. L. R. 829. III. Disabilities Affecting Running of Period. A married woman, as to property owned by her prior to 1869, is within the saving clause of the statute of 21 James I, ch. 16, § 3 ; but where the whole period of 20 years required for a title by adverse possession, or more than 10 thereof, has elapsed before the coverture determines, her right of action will be barred unless commenced within ten years after the removal of the disability. Davis v. Coblens, 13 App. D. C. 51 ; 26 W. L. R. 34. The second section or saving proviso of the British statute 31 James I, ch. 16, as to persons under disabilities, is repealed by the provisos to the act of Mar. 3, 1899, for the quieting of titles, carried into the code as § 111. Gwin V. Brown, 21 App. D. C. 295; 31 W. L. R. 338. Where a right of action has accrued, and there are parties competent to sue and be sued, and the period of hmitation once begins to run, it continues to run notwithstanding subsequent disability. Gibson v. Ruff, 8 App. D. C. 362 ; 34 W. L. R. 330. Cumulative disabilities cannot be used to arrest the running of the statute. Davis v. Coblens. 174 U. S. 719, affirming 13 App. 51. IV. Commencement of Action Affecting. When a declaration at law is filed, with direction, express or implied by the plaintiff or his attorney to the clerk to issue process thereon, and nothing remains to be done but that the clerk should proceed, and the party has otherwise complied with the requirements of law as to the payment of fees and the like, the suit is deemed to be then commenced so far as to arrest the running of the statute of limitations. Huysman v. Evening Star Newspaper Co., 13 App. D. C. 586; 26 W. L. R. 372. The mere filing of a declaration without any intention to sue out process under it at the time, and with directions to the clerk not to issue process at the time or until further order, which is never given, is not such a com- mencement of a suit as to stop the running of the statute of limita- tions, lb. The rule that the institution of a suit in which a claim of set-off is pleaded stops the running of the statute of limitations against the claim of set-off, although otherwise the bar of the statute might have accrued before the date of the filing of the plea, presupposes that the set-off has some relation to the principal claim. Durant v. Murdoch, 3 App. D. C 114; 22 W. I,. R. 351, Limitation of Actions. ' 609 Where the cause of action stated in an amendment is the same as that stated in the original declaration, charging it in a different form does not render the amendment open to the defense of the statute of limitations. Beasley v. Balto. & Pot. R. Co., 27 App. D. C. 595 ; 34 W. L. R- 430. Effect of amendment o.f declaration as a statement of a new cause of action barred by limitations. See Dis. of Col. v. Fraser, 21 App. D. C. 154; 31 W. L. R. 83. V. Fraudulent Concealment of Cause of Action. Fraudulent concealment of a xause of action will avoid the operation of the statute in a suit either at law or in equity. Lewis v. Denison, 2 App. D. C. 387; 22 W. L. R. 191. VI. Death and Administration. The statute of limitations does not begin to run against a claim in behalf of a decedent's estate until after letters of administration are granted. Tucker v. Nebeker, 2 App. D. C. 326 ; 22 W. L. R. 143. The running of the statute of limitations will not be arrested for the period between the death of a debtor and the grant of letters testamentary to his executor. Gibson v. Ruff, 8 App. D. C. 262 ; 24 W. L. R. 330. The presentation to an executor of an unauthenticated demand for pay- ment and its rejection by him does not have the effect to bring any part of it under the operation of the special statute of limitation provided for such cases. Wash. Loan & Trust Co. v. Darling, 21 App. D. C. 132 ; 31 W. L. R. 129. As to application of Maryland act of 1798 to claim of executrix against estate. See Fatten v. Glover, 1 App. D. C. 466 ; 31 W. L. R. 794. Running of statute as to action against an administrator on contract of his intestate. See Tuoh-^ v. Trail, 19 App. D. C. 79 ; 30 W. L. R. 3. VII. Flight of Accused Affecting. Under the provisions of § 1045, Rev. Stat., one fleeing from justice before the bar of the statute takes effect, can have no benefit whatever from it. Howgate v. United States, 7 App. D. C. 217 ; 24 W. L. R. 518. One escaping from the custody of the law, whether against the will or with the connivance of his keepers, and becoming a fugitive from jus- tice, is not entitled to the benefit of the bar of the statute of limita- tions, lb. The expression "fleeing from justice" used in § 1045, Rev. Stat, is not limited to crimes for which the party is under indictment at the time of flight, since the limitation only applies where no indictment has been found. lb. VIII. Acknowledgment, New Promise, and Part Payment. Payment of money by a debtor on account of his indebtedness is evi- dence of a new promise sufficient to avoid the bar of the statute of limita- tions. Cooper V. Olcott, 1 App. D. C. 123 ; 21 W. L. R. 616. A promise to pay an indebtedness at any time the creditor should need it, even if the debtor had to sell stock to do it, is not a conditional promise to pay, but constitutes a new promise sufficient to avoid the bar of the statute of limitations, lb. 6to Limitation of Actions. Where, upon being shown his account on a ledger, a debtor stated that he was willing to settle the account and pay what he owed, but that he did not see where he had been given a certain credit, and upon having the credit pointed out to him made no further objection to the account, his acknowledgment is sufficient to raise an implied promise so as to re- move the bar of the statute of limitations. Bean v. Wheatley, 13 App. D. C. 473 ; 26 W. L. R. 805. A part}' cannot be permitted, after making an acknowledgment, the effect of which may be to remove the bar or to prevent the running of the statute as to a particular account, by his declaration or claim made upon a different occasion, to overcome, qualify or defeat the effect of his previous acknowledgment. lb. In the case of a simple contract debt a new promise 'to take the case out of the statute will be implied from a distinct and unequivocal ac- knowledgment by the debtor of a debt as a still subsisting personal obli- gation. Ruppert V. Beavans, 3 App. D. C. 298 ; 22 W. L. R. 105. The refusal by a debtor who acknowledges a debt in distinct and unequivocal terms, to break up the debt represented by a single note, and execute three different notes for it, is not a qualification of the acknow- ledgment, lb. Part payment of principal or payment of interest on simple contract debt, or the acknowledgment of the existence of such debt, by one joint debtor, is payment or acknowledgment by all; and the claim is not barred until after the lapse of three years from the time of such payment or acknowledgment. Flannery v. Granite Co., 3 App. D. C. 395 ; 22 W. L. R. 369. An acknowledgment by one partner of a subsisting liability of the firm avoids the operation of the statute of limitations as to all the partners, even though the partnership had been dissolved at the time the acknow- ledgment was made. lb. The amendment of a declaration so as to change the form of action from assumpsit to tort held not to open the case to the bar of the statute of limitations. Howard v. C. & O. R. R. Co., 11 App. D. C. 300; 25 W. L. R. 750. Section 1271, Code D. C, providing that in actions of debt, etc., no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract whereby to take any case out of the statute of limitations or to deprive any party of the benefit thereof, unless made or contained by or in some writing signed by the party chargeable thereby, does not make testimony as to an oral promise wholly inadmissible in evidence, but simply provides that it shall not be deemed sufficient evidence. Shelley v. Wcscott, 23 App. D. C. 135; 32 W. L. R. 68. In order for payment of interest, to have the effect of removing the bar of limitations, it must appear that the payment was in fact made by the debtor or by his authority. The mere indorsement on the back of the note that interest has been paid from time to time is not proof of the fact. Cropley v. Byster, 9 App. D. C. 373; 34 W. L. R. 829. Where the indorser of a promissory note consents to an agreement be- tween the holder and maker for the extension of time of payment for a Limitations — Liquidated Damages. 6ii definite period, the consideration for such agreement being the payment of interest for the extended time, the statute of limitations does not begin to run in his favor until after the expiration of such extended time. Reed v. Tierney, 13 App. D. C. 165; 26 W. L. R. 133. The rule of evidence as to new promise prescribed by § 1271 of Code does not apply to cases pending at the time the Code went into efifect, but such cases are excepted by § 1638. Shelley v. Wescott, 23 App. D. C. 135; 32 W. L. R. 68. Where a mutual account exists and a payment is made, leaving a bal- ance due, the running of the statute as against such balance is not af- fected by the subsequent entry by the creditor of new and independent items to his own side of the account. Ross v. Pickling, 11 App. D. C. 442; 25 W. L. R. 806. Evidence of a new promise to take a case out of the statute of limita- tions may be given under the general issue on a plea of the statute. Pumphrey v. Bogan, 8 App. D. C. 449 ; 24 W. L. R. 302. IX. Waiver of Right to Plead Bar. A judgment debtor agreeing to waive his right to plead the statute of limitations and that the judgment may be enforced until actually paid, is estopped to plead the statute in bar of the judgment. Mann v. Cooper, 2 App, D. C. 236; 32 W. L. R. 98. . X. In General. The statute of limitations of actions in this District is the act of Mary- land of 1715, ch. 23. Mann v. Cooper, 2 App. D. C. ?26 ; 22 W. L. R. 98. In order to give effect to both § 111 and § 1265, Code D. C, the former section is to be read as an exception to the latter more general provisions of § 1265, whereby §§ 1 and 2 of the act of 21 James I, ch. 16, were re- pealed and new periods of limitations substituted therefor. Gwin v. Brown, 21 App. D. C. 295 ; 31 W. L. R. 238. As to waiver of provision in policy of fire insurance limiting time within which suits thereon could be brought. See Brown v. Commercial Pire Ins. Co., 21 App. D. C. 325 ; 31 W. L. R. 206. See Laches; Judgments and Decrees; Trespass. LIMITATIONS. Conditional limitations, the literal effect of which is to cut down and defeat a pre-existing estate by making it determinable upon the event of marriage should be regarded merely as in terrorem and not allowed to operate a forfeiture of the estate. Kennedy v. Alexander, 21 App. D. C. 424; 31 W. L. R. 158. LIMITATION OF LIABILITY. See Common Carriers. LIQUIDATED DAMAGES. Entry of judgment by court without submission to jury. Bieber v. Cans, 24 App. D. C. 517; 33 W. L. R. 51. As to enforcement in equity of provision of building contract relative to. See Emack v. Campbell, 14 App. D. C. 186; 37 W. L. R. 314. 6i2 Liquor Licenses — Machines. LIQUOR LICENSES. As subject of conveyance by deed of trust. See Sullivan v. Bailey, 21 App. D. C. 100; 31 W. L. R. 111. See Intoxicating Liquors. LIST OF WITNESSES. As to effect of mistake in address of witness as given in list to be furnished an accused under § 1033 Rev. Stat. See Horton v. United States, 15 App. D. C. 310; 27 W. L. R. 706. Sufficiency of identification of persons named. See Shaffer v. United States, 24 App. D. C. 417; 33 W. L. R. 4. LIVERYMEN. The lien which a liveryman has for the board and keep of an animal is not a secured debt within the meaning of the Bankruptcy Act. Mat- ter of Johnston Co., 30 W. L. R. 118. The claim of a liveryman against a bankrupt cannot be paid until after payment of the expenses of administration of the bankrupt's estate. lb. LOANS. As to liability of building association making a building loan to see that the money is applied to the satisfaction of claims for labor and ma- terials. See Anglo-American S. & L. Assn. v. Campbell, 13 App. D. C. 581; 27 W. L. R. 2. A contract held to be one of life insurance, and not of loan. See United Security Ins. Co. v. Bond, 16 App. D. C. 579 ; 28 W. L. R. 456. LOBBYING. Services in procuring legislation by Congress looking to the reference and payment of claims are not the subject of lawful contract. Consaul V. Cummings, 24 App. D. C. 36; 32 W. L. R. 470; Ozvens v. Wilkinson, 20 App. D. C. 51; 30 W. L. R. 436. See Accounts and Accounting. LOST DOCUMENTS. As to admissibility in evidence of copy of lost document. See Guilford Granite Co. v. Harrison Co., 23 App. D. C. 1; 31 W. L. R. 759. As to proof of. See Shaffer v. United States, 24 App. D. C. 417; 33 W. L. R. 4. As to perfecting record on appeal which is incomplete because of the loss of original papers in the court below. See Hardesty v. Hosmer, 4 App. D. C. 280; 22 W. L. R. 706. See Wills. LUNACY. See Contracts. LUNACY PROCEEDINGS. See Insane Persons. LUNATICS. See Insane Persons. MACHINES. See Patents. Maiif. III. Contracts of. Under §§ 1155 and 1156, Code D. C, a married woman has power to make a contract to exchange real estate owned by her for that owned by the other party to the contract, and as part of the transaction to agree to purchase the personal property in the house received by her at an agreed price, upon which shall be credited the value of the personal prop- erty in the house exchanged by her, the balance to be paid in cash, and she may be sued separately on such contract. Dobbins v. Thomas, 36 App. D. C. 157; 33 W. L. R. 743. Section 1177, Code D. C, does not preclude a married woman from rendering herself liable for necessaries when contracted for independently of her husband and with reference to her separate estate; but merely provides that, in such cases, the husband shall not be reUeved of any liability therefor that he may be under by virtue of the common law. lb. The proviso to § 1155, Code D. C, declaring "that no married woman shall have power to make any contract as surety or guarantor, or as ac- commodation drawer, acceptor, maker, or indorser," is limited in its operation to the section in which it occurs — that is, as limiting her power to contract liabilities enforceable by action and execution at law. Dar- neille v. Tuck, 33 W. L. R. 821. A married woman is competent to contract jointly with her husband in respect of her separate estate; and the form of recovery on such con- tract must conform to the rights and obligations imposed by the terms of the contract ; and so held that in an action against husband and wife on such a contract, a verdict against the wife alone was void. Magruder v. Belt, 7 App. D. C. 303; 23 W. L. R. 827. The common law rule that contracts between husband and wife are void at law and cannot be enforced is not affected by §§ 727-730 R. S. D. C. McCormick v. Hammersley, 1 App. D. C. 313 ; 21 W. L. R. 775. In an action against a married woman to recover for services under contract in preparing plans, etc., for the erection of houses on her sep- arate estate, the material allegation in the declaration is that she was seized of the property as her separate estate under the statute; the chain of title by which she was so seized is an immaterial allegation, and proof of a contrary chain of title is not a material variance. Poertsch v. Germuiller, 9 App. D. C. 351; 24 W. L. R. 794. Where in such action, it is shown that the contract was made with her husband, in her presence and without dissent from her and that she allowed him to borrow money to erect the houses according to such plans, etc., the presumption is that he was acting as her agent and she will be bound thereby; though this presumption may be rebutted by showing that her husband acted in his own behalf and without her con- sent, lb. The award of execution upon a judgment against the married woman in such action should be against her sole and separate estate acquired and held under the statute and not a general personal judgment. lb. Where property was settled on a married woman prior to the Married Woman's Act, for life, with power of disposition, to be exercised by re- quest in writing to the trustee holding the property, which request was Married Women. 635 to be formally witnessed, held, that an oral agreement by such married woman, attempting to charge such estate with certain attorney's fees, did not have the effect of creating a lien against it. Merchant v. Cook, 7 App. D. C. 391 ; 34 W. L. R. 34. IV. Actions by and Against. Under the act of Congress of June 1, 1896, a married woman may maintain a suit in her own name and without joining her husband, for a libel concerning her with reference to a business in which she is en- gaged. Wills V. Jones, 13 App. D. C. 483 ; 37 W. L. R. 19. In this District a married woman may, under the provisions of the act of Congress of June 1, 1896, maintain an action in her own name, without joining her husband, to recover damages for personal injuries sustained by her through the negligence of another person, and a plea setting up her coverture in abatement of the action is demurrable. Cap- ital Traction Co. v. Rockwell, 17 App. -D. C. 369 ; 39 W. L. R. 41. A married woman residing in New York where her earnings are her separate estate, may sue in the District as sole plaintiff to recover an amount loaned out of such earnings, although if she lived in this Dis- trict the earnings would belong to her husband. Prank v. Hirsh, 3 App. D. C. 491 ; 33 W. L. R. 403. Under the act of June 1, 1896, a married woman may be held liable as a partner in an unincorporated joint stock company equally with other stockholders ; but where her husband was also a member of such com- pany she could not be held so liable, as she was incompetent to enter into a valid copartnership with him. Norivood v. Francis, 35 App. D. C. 463; 33 W. L. R. 455. A married woman, as to property owned by her prior to 1869, is within the saving clause of the statute of 31 James I, ch. 16, § 3, but where the whole period of twenty years required for a title by adverse posses- sion, or more than ten years thereof, has elapsed before the coverture determines, her right of action will be barred unless commenced within ten years after the removal of the disability. Davis v. Cohlens, 13 App. D. C. 51 ; 36 W. L. R. 34. Capacity to sue on note. See Richards v. Bippus, 18 App. D. C. 393 ; 29 W. L. R. 414. ■ Recovery on agreement to redeem stock sold and issued in name of another. Crandell v. Classen, 35 App. D. C. 5 ; 33 W. L. R. 130. A right of action to recover damages for personal injuries is not the separate statutory property of a married woman and cannot be dis- charged by her separate release. Howard v. C. & O. R. R. Co., 11 App. D. C. 300; 25 W. L. R. 750. V. Wills of. The power to devise and bequeath property conferred on married women by § 728, R. S. D. C, extends to all her property, however ac- quired, and includes power to devise real estate acquired by conveyance from her husband. Hamilton v. Rathbone, 175 U. S. 414; 37 W. L. R. 831 ; Zuest V. Staff an, 16 App. D. C. 141 ; 39 W. L. R. 271. A will of a married woman disposing of real estate acquired by gift from 636 Married Women. her husband subsequent to the enactment of § 728, R. S. D. C, passes the legal estate in such property freed from any right of the husband as tenant by the curtesy. Bolster v. Cadick, 29 App. D. C. 405; 35 W. L,. R. 275. The re-marriage by a woman who has obtained a divorce will not op- erate to revoke a will made prior to the divorce. Chapman v. Dismer, 14 App. D. C. 446; 27 W. L. R. 238. VI. Conveyances by. Under § 1154, Code D. C, a deed of trust by a married woman, of her separate property, executed by her jointly with her husband, to secure an indebtedness of the husband, is valid and enforceable. Darneille v. Tuck, 33 W. L. R. 821. As to validity of deed of trust by. Fields v. Gwynn, 19 App. D. C. 99; 29 W. L. R. 834. VII. Judgments Against. A judgment against a married woman can not be attacked collaterally and declared void on the ground that it is a general personal judgment against her, with no limitation of execution to her sole and separate es- tate under the Married Woman's Act. Magruder v. Armes, 15 App. D. C. 379; 27 W. L. R. 738. As to validity of judgment against married woman. See 76. VIII. Administration of Estates of. The Married Woman's Act of April 10, 1869, and the act of June 1, 1896 having conferred upon the wife the right of separate contract in re- lation to her property, it is necessary that there should be administration upon her estate in order to protect the rights of creditors. McCarthy v. McCarthy, 20 App. D. C. 195 ; 30 W. L. R. 419. The surviving husband is entitled to administration upon the estate of his deceased wife, and to the residue of the personal property remaining after payment of her debts, although such property may have been ac- quired by the wife as her sole and separate estate. /&. As to determination of question of whether the property of a deceased wife, the right to administer which is sought, was her sole and separate estate. See Ih. IX. As Witness. A married woman is a competent witness in a suit in equity against herself and husband to set aside a conveyance of property charged to have been purchased by the husband but conveyed to her through his procurement; and her testimony must be received and considered' not- withstanding it embraces transactions with her husband upon which her claim of separate estate is founded. Smith v.. Cook, 10 App. D. C. 487; 25 W. L. R. 351. X. In General. Statutes enlarging the rights of married women should be liberally construed. Wills v. Jones, 13 App. D. C. 482 ; 27 W. L. R. 19. As to effect to release dower, of uniting with husband in execution of deed. See Follansbee v. Follanshee, 1 App, D. C. 326 ; 21 W. L. R. '761. Married Women's Act — Master and Servant. 637 As to effect of conveyance to a married woman to raise a resulting trust in favor of her husband. See Dorsey v. Manning, 15 App. D. C. 391; 27 W. L. R. TSS. A power of attorney executed and acknowledged by a married woman and her husband in 18.59, to sell and convey land of the wife, held valid and sufficient to authorize the attorney to sell and convey the lands. Construing Maryland acts of 1715, ch. 47; 1766, ch. 14, and 1794, ch. 57, and acts of Congress of May 31, 1832, April 20, 1838, and March 3, 1865. Williams v. Paine, 7 App. D. C. 116 ; 23 W. L. R. 626. A married woman dealing with her statutory separate estate is equally subject to the imputation and consequences of laches as if she were a /?me sole. Warner v. Jackson, 7 App. D. C. 211 ; 23 W. L. R. 811. As to property right of wife in promissory note made by her husband to her order. See Bronson v. Brady, 38 App. D. C. 250; 34 W. L. R. 704. See Husband and Wife. MARRIED WOMEN'S ACT. See Husband and WiPfi; Laches; Married Women. MARSHAL. See United States Marshal. MASTER AND SERVANT. I. Relation as. n. Duty of Master as to Safety of Place and Appliances. HI. Delegation of Duty. IV. Assumption of Risk. V. Liability of Master for Acts of Servant. VL In General. I. Relation as. That a carriage and horses provided by law for the use of one of the executive departments of the Government, the driver thereof being borne on the rolls of that department and paid. by the United States, was at the time of an accident caused by such driver's negligence, being used by the head of the department for private purposes, does not create the relation of master and servant between that official and the driver of the carriage so as to render the former liable for the latter's negligence. Newbold v. Harmon, 26 W. L. R. 808. Where, at the request or in obedience to the directions of the owner of a building, for whom he had constructed a skylight therein, the con- tractor undertakes the removal of the old material, he is in so doing the agent or employe of the owner, and the latter is liable for his negli- gent performance of the work, but is not so liable where, on completion of the contract he makes a gift of the old material to the contractor who in removing it acts only for himself and without any direction of the owner. Swart v. Justh, 24 App. D. C. 596; 33 W. L. R. 149. II. Duty of Master as to Safety of Place and Appliances. It is the duty of a master to furnish his servant reasonably safe tools, appliances and machinery, and he cannot escape liability by delegating Xq another the work of furnishing thetn. Balto, <^ Pot, 7?. i?. (To. v, 638 Master and Servant. Elliot 9 App, D. C. 341; 24 W. L. R. 760; Butler v. Frasee, 25 App. D. C. 392; 33 W. L. R. 387. A master is bound to take all reasonable precautiofis for the safety of his servants. If he is aware of any special danger attending their work and not known by them, it is his duty to inform them of it; but if a servant is himself aware of a danger and fails to take the necessary care or precaution to avoid it and suffers injury, the master is not respon- sible. Hines v. Gas Company, 3 App. D. C. 369; 22 W. L. R. 365. The law requires of employers only such appliances as are in common use. Hayzel v. Columbia Ry. Co., 19 App. D. C. 359; 30 W. L. R. 198. There is no guaranty by a master that the machinery and appliances provided are absolutely safe. Butler v. Prazee, 25 App. D. C. 392; 33 W. L. R. 387. An employe may not, without the knowledge of his employer, make use of an appliance for a purpose wholly foreign to that which it was de- signed to serve, and thereby make the emploj'er liable to him because it may have proved inadequate and unsafe for the new, unauthorized and unknown use. McCauley v. South. Ry. Co., 10 App. D. C. 560; 25 W. L. R. 331. Where an employe of an electric railroad company was injured through the failure of another employe to equip his car with a light essential to the safety of employes, the fact that the injured employe knew of the practice of conductors to so equip their cars from lights placed on the curb at a certain point on the line, does not militate against his right of recovery; since an employe is not compelled to pass judgment on the employer's methods of business or to question their adequacy, but may assume that reasonable care will be used in furnishing necessary ap- pliances. Carter v. McDermott, 29 App. D. C. 145 ; 35 W. L. R. 158. A master must exercise reasonable care in the selection of his servants and must provide reasonably safe machinery, appliances and equipment; and if a servant is injured because of the master's failure in either re- spect the master is liable. lb. In an action by an employe of a street railroad company for an injury received while coupling cars, a question asked him while testifying in his own behalf as to his experience in coupling cars and as to the coupling apparatus on cars previously operated by him for the company, is prop- erly excluded. Hayzel v. Columbia Raihvay Co., 19 App. D. C. 359; 30 W. L. R. 198. In an action by an employe of a railroad company to recover for in- juries sustained by reason of unsafe appliances, the exclusion of a con- versation between a witness and some official of the company alleged to have taken place a long time previous to the accident, to the effect that the coupling apparatus in question was dangerous, is proper where it does not appear that such official had any control over the equipment or man- agement of the cars of the company. lb. To render an employer liable for injury received by an employe in the use of a defective appliance it must be shown that the employer had knowledge or opportunity for knowledge of the defective condition. lb. In an action by a servant against a master based on the employment pf improper and unsafe appliances the latter held not liable, there being Master and Servant. 639 nothing to show the use of similar -appliances previous to the accident or that their use was authorized or known by defendant at the time of the accident and the evidence showing voluntary, thoughtless and improvident act on part of plaintiff. Sardo v. Moreland, 17 App. D. C. 319; 28 W. L. R. 818. When an injury is received by an employe while working with ma- chinery or appliances provided for his use, the fact of accident carries with it no presumption of neglect of duty on the part of the employer, and the burden is upon the employe to show such negligence as an af- firmative fact. Butler v. Prazee, 35 App. D. C. 393; 33 W. L. R. 387. The fact that a particular method or appliance employed by a master is dangerous does not necessarily make it negligent for him to use it. The test of negligence in methods, machinery and appliances is the ordinary usage of the business, and the jury can not be permitted to say that the usual and ordinary way, commonly adopted by those in the same business, is a negligent way for which liability shall be imposed. Block & Tile Co. v. Mackey, 15 App. D. C. 410 ; 28 W. L. R. 35. An employe of an electric power company, while performing work di- rected by his foreman came in contact with a switchboard which at the time was heavily charged with electricity and was severely injured, held, upon a review of the evidence in behalf of the plaintiff, that it tended to ijhow that the plaintiff was sent by his foreman, the agent of defendant, into a place of unusual danger without proper warning to him of his danger, and without proper precaution for his protection; that this show- ing entitled him to go to the jury. Staubley v. Potomac Blectric Power Co., 21 App. D. C. 161; 31 W. L. R. 127. As to test of care or skill required in the methods and use and opera- tion of machinery and appliances. See Kight v. Metropolitan R. R. Co., 21 App. D. C. 494; 31 W. U R. 302. III. Delegation of Duty. An employer cannot escape liability by delegating to a fellow servant of the party injured the duty of furnishing safe machinery and appli- ances and keeping them in proper repair. The negligence, in such case, of the person charged with the performance of this duty is in law the negligence of the employer and not of the fellow servant. McCauley v. South. Ry. Co., 10 App. D. C. 560; 25 W. L. R. 331. Where reasonable care for the safety of employes requires an electric railway company to maintain a light on the rear end of cars, the duty of so equipping them is an imperative one resting on the company and one which it cannot delegate so as to escape liability for injuries sustained by a servant by reason of neglect on the part of the agent or servant entrusted therewith ; and the fact that the company provided such lights and placed them on the curb at a point on its line distant from the car barn and promulgated a rule requiring conductors on reach- ing that point to equip their cars with them, will not absolve it from liability to an employe injured by reason of the failure of another em- ploye to so equip his car, there being nothing to show that it was im- possible or impracticable to so equip the cars before leaving the barr(, Carter v. McDermott, 29 App. D, C. 145 ; 35 \y. L. R. 158, 640 Master and Servant. IV. Assumption of Risk. Where an employe undertakes and continues the use of defective and unsafe appliances, either with actual notice of such defect, or where the same is open to ordinary observation in the usual course of its use, he must be deemed to have accepted the risk of all danger reasonably to be apprehended from such use, and can not recover of his employer. Butler V. Frazee, 25 App. D. C. 392 ; 33 W. L. R. 387. While persons who voluntarily engage in a dangerous occupation must take the ordinary risks incident thereof, and an employer is not liable to an employe for injury sustained by the latter in the course thereof, yet the employer is bound to provide reasonably safe appliances for the use of his employe. The latter does not take all the risks of the employment, but only such as are ordinary and usual, and against which he may guard himself by the use of the care that is reasonably proper under the cir- cumstances. Staubley v. Potomac Electric Power Co., 21 App. D. C. 160; 31 W. L. R. 127. In an action by an employe of a street railway company for an injury received in coupling cars, the negligence on the part of the company was, in the first count of the declaration, alleged to consist in having on the car plaintiff was charged to operate an unsafe coupling appliance, and in the second count as having a safe appliance in a bad condition. It appeared from plaintiff's own evidence that he knew of the alleged defect before the accident, and that he incurred the risk with full knowledge of the danger and without any command or instruction to that effect by any officer of the defendant. It was held, that a verdict for defendant was properly directed. Hayzel v. Columbia Railway Co., 19 App. D. C. 359; 30 W. L. R. 198. The real ground of the exemption of a master from liability to his servants for injuries received in the course of employment by the negli- gence of fellow servants, is the implied contract to assume the risk of such neghgence. Hughson v. Richmond & D. R. R. Co., 2 App. D. C. 98; 22 W. L. R. 55. V. Liability of Master for Acts of Servant. To hold a corporation liable for the tort of its agent, the act com- plained of must have been performed in the course and within the scope of the agent's employment. Gas Light Co. v. Lansden, 172 U. S. 534, reversing 9 App. D. C. 508. The failure of a conductor of an electric car to equip his car with a light which is essential to the safety of other employes is the failure of the company for the consequences of which the company is responsible. Carter v. McDcrmott, 29 App. D. C. 145; 35 W. L. R. 158. Where employes of a railroad were allowed to bring with them, on a repair train on which they were returning from work, pieces of refuse lumber for fuel, which would be thrown from the car while it was in motion, at a point near their homes, the railroad company held not liable for injuries to one who, while standing on the sidewalk, was struck by a piece of the timber so thrown, such action of the em- ploye in throwing the tirnber being without the scope of his employment. MateriaIvMKn — Maxims. 641 Fletcher v. Balto. & Pot. R. R. Co., 6 App. D. C. 385; 33 W. L. R. 390; reversed in 168 U. S. 135. A machinist employed by a firm having a contract for repairing an ele- vator, while engaged in the work had his arm caught between the wheel and the ropes. Failing in his efforts to release his arm, he directed his assistant to have the pressure turned on the elevator in order that the car might be run up. The janitor of the building, who was in the employ of the owner of the building, in acting upon this request caused the car to go down and not up, and appellant's arm was torn off. Held, that the janitor acted as the agent of the injured party and not in the line of his employment so as to render his employer liable. Sherwood v. Warner, 27 App. D. C. 64 ; 34 W. L. R. 110. As to liability of employer for act of his servant in unlawfully selling liquor on Sunday. See Lehman v. Dis. of Col., 19 App. D. C. 217; 30 W. L. R. 87. As to railroad's liability for negligence of its employe. See Sherwood V. Warner, 27 App. D. C. 64 ; 34 W. L. R. 110. ; Fletcher v. Balto. & Pot. R. R. Co., 168 U. S. 135 ; 25 W. L. R. 774. As to liability of employer for torts of employes. See Tucker v. Ne- beker, 3 App. D. C. 326; 22 W. L. R. 143. VI. In General. 'A release by a servant of his master, based upon a pre-contract to exonerate the master from liability for injuries, is valid and binding. Brown v. Balto. & O. R. R. Co., 6 App. D. C. 237 ; 23 W. L. R. 337. As to whether a servant may by pre-contract release the master from liability for injuries. See lb. As to sufficiency of declaration in action against gas company for injury to employe caused by negligence. See Mines v. Gas Company, 3 App. D. C. 369 ; 22 W. L. R. 365. The maxim respondeat superior not applicable to employes of fire de- partment and the District of Columbia. Brown v. Dis. of Col., 35 W. L. R. 162. See Fellow Servants. MATERIALMEN. As to protection of those furnishing materials to a Government con- tractor under act of Congress of Aug. 13, 1894. See Standard Oil Co. v. City Trust Co., 21 App. D. C. 369 ; 31 W. L. R. 162. As to who are materialmen within meaning of act of Congress of Aug. 13, 1894. See lb. As to who are materialmen within the meaning of the Mechanics' Lien Law. See Leitch v. Dispensary, 6 App. D. C. 247; 23 W. L. R. 305. As to right of materialmen to recover on bond of Government con- tractor. See Chapman v. Trust &c. Co., 31 W. L. R. 396. As to right to subject retent in hands of municipality to the satisfaction of claims. See Columbia Brick Co. v. Dis. of Col., 1 App. D. C. 351; 31 W. L. R. 739. See Contracts; Mechanics' Liens. MAXIMS. As to application of maxim that he who seeks equity must do equity. 642 Measures — Mechanics' Liens. See SuUivan v. Bailey, 21 App. D. C. 100; 31 W. L. R. Ill; Mercantile Trust Co. V. Hensey, 21 App. D. C. 38 ; 31 W. L. R. 96. Palsus in uiio, falsiis in omnibus. See Travcrs v. Reinhardt, 25 App. D. C. 567; 33 W. L. R. 406. See Equity. MEASURES. See Weights and Measures. MEASURE OF DAMAGES. See Damages. MECHANICAL SKILL. See Patents. MECHANICS' LIENS. I. Who Entitled. II. Who Affected. III. Scope of Lien. IV. Notice of Lien. V. Undertakings. VI. Completion of Building. VII. Subcontractors. VIII. Priority of Other Liens. IX. Trusts in Favor of Lienholders. X. Suits to Enforce. XI. Satisfaction of. XII. In General. I. Who Entitled. Materialmen protected by the Mechanics' Lien Law are those who oc- cupy the position of contractors or subcontractors and who furnish ma- terials, directly under contract with the owner, or directly or indirectly under immediate contract with the builder or principal contractor. Leitch V. Dispensary, 6 App. D. C. 247; 23 W. L. R. 305. One who furnishes to a subcontractor materials to be used by him in doing the necessary steam heating and plumbing in the erection of a building, for which the subcontractor has a contract from the builder, is not a materialman entitled to a lien. lb. There is no material distinction between subcontractors and material- men as enumerated in the Mechanics' Lien Law. The terms only serve to differentiate those who do the work or furnish both work and ma- terials from those who merely furnish materials. lb. While the right to a mechanics' lien does not depend upon the exist- ence of a contractual relation between the person claiming the lien and the owner of the property, no one except a contractor or subcontractor is entitled thereto. lb. One furnishing material to a subcontractor, who gives him an order on the contractor, does not, by the acceptance of such an order by the contractor, become entitled to a lien. Herrell v. Donovan, 7 App. D. C. 322; 33 W. L. R. 821. Subcontractors of a subcontractor are not entitled to claim a lien. Only persons in immediate contractual relation with the builder or principal contractor are entitled. Leitch v. Emergency Hospital, 6 App. D. C. 247; 23 W. L R. 305; Herrell v. Donovan, 7 App. D. C. 322; 23 W. L. R. 821; Somerville v. Williams, 12 App. D. C. 520; 26 W. L R- 280. A surety on the bond of a contractor for the discharge of liens, can- Mechanics' LtEns. 643 not file a lien as subcontractor unless discharged from his contract as surety. Partial payments by the owner to the contractor, not made in exact accordance with the contract, do not prejudice the surety and amount to a discharge, especially where he ratifies such payments. Her- rell V. Donovan, 7 App. D. C. 322; 23 W. L. R. 821. Where materials to be used in the construction of certain buildings were furnished by materialmen to a subcontractor upon the written order of the principal contractor in which he agreed to make payment therefor in installments as the work progressed, the materialmen having previ- ously refused to furnish the materials to the subcontractor, and where, on the abandonment of the work by the contractor the principal took possession of the materials and used them in completing the work, held, that the effect of the order and its acceptance was to constitute the ma- terialmen subcontractors in immediate relation with the principal con- tractor, and therefore entitled to claim a mechanic's lien. Somerville v. Williams, 12 App. D. C. 520; 26 W. L. R. 280. II. Who Affected. The mechanics' lien law imposes no liability on a lessor who by cov- enant in a lease is to become the owner at the end of the lease of a building to be erected on the demised premises by the lessee. Albaugh z<. Litho-Marble Dec. Co., 14 App. D. C. 113 ; 27 W. L. R. 130. One who, pending suit to enforce mechanics' liens, purchases the prop- erty at a sale under deed of trust, and thereafter files the undertaking re- quired by statute and secures the release of the liens, is bound as owner, although not technically a party defendant to the proceeding. Anglo- .■linerican S. & L. Ass'n v. Campbell, 13 App. D. C. 581; 27 W. L. R. 2. A mechanic's lien is not enforceable against a building erected by a guardian with money of her ward without authority; but where the guardian has contributed to the building with her own funds her interest may be reached, and it is proper to allow an amendment of the bill filed to enforce the lien so as to show clearly what her interest is and that it is sufficient to discharge the hen over and above the amount belonging to the ward. Alfred Richards Brick Co. v. Atkinson, 16 App. D. C. 462; 28 W. L. R. 503. III. Scope of Lien. Under the mechanics' lien law in force in this District, as contained in §§ 1237-1264 of the Code, a single lien should cover no more than a single building, except in the case where there are two or more buildings joined together and owned by the same person. Alfred Richards Brick Co. V. Trott, 23 App. D. C. 284 ; 32 W. L. R. 179. An electric passenger elevator is both an engine and machine, and becoming as it does a fixture of the building in which placed is within the contemplation of the mechanics' lien law. LeAer v. Forsberg, 1 App. D. C. 36; 21 W. L. R. 585. The lien given by the mechanics' lien law cannot arise without a pre- existing contract. Herrell v. Donovan, 7 App. D. C. 322; 23 W. L. R. 821. IV. Notice of Lien. The time for filing notice of lien grounded upon a claim for work 644 Mechanics' Liens. or materials furnished in the erection of a building does not date from the time of putting in fixtures, unless they were embraced in the con- tract for the construction of the building. Brown v. Waring, 1 App. D. C. 378; 21 W. L. R. 746. A notice of an intention to claim a mechanics' lien made out against the party who was the owner of the property at the time the right to assert the claim accrued, held a substantial compliance with the provisions of the act of July 2, 1884, in respect of notice. Leiier v. Forsberg, 1 App. D. C. 36; 21 W. L. R. 585. A notice of a mechanics' lien which states definitely the amount claimed to be due is sufficient, and need not include an itemized statement of the account. Emack v. Campbell, 14 App. D. C. 186 ; 27 W. L. R. 214. Where it is shown that a building was completed ''about the middle of July," d. notice of lien filed October 6 is in time, although the bill alleges and the answer admits that the building was completed "about the first of July." lb. Two separate and distinct buildings, or two separate and distinct groups of buildings, may not be treated as one and the same building for the purpose of the notice required by the statute to be given of mechanics' liens where there are other rights to be affected thereby than those of the principal contractor. Alfred Richards Brick Co. v. Trott, 23 App. D. C. 284; 32 W. L. R. 179. V. Undertakings. The obligation of the undertaking required by the mechanics' lien law is confined to the purposes of the statute, and on failure to establish mechanics' liens upon the premises, the obligation of the undertaking ceases. Anglo-American S. & L. Ass'n v. Campbell, 13 App. D. C. 581; 27 W. L. R. 2. Counsel fees incurred in defending proceedings for enforcement of mechanics' liens cannot be recovered as legal damages in action on bond of contractor, unless expressly provided for in the contract. Donovan v. Johnson, 13 App. D. C. 356; 26 W. L. R. 714. VI. Completion of Building. The question of completion or non-completion of a building, within the meaning of the mechanics' lien law, is to be determined by what common intelligence and common usage so regard, always of course with refer- ence to the terms of the building contract; but no amount of work is too small the completion of which is required to prevent the consummation of a fraud. Riggs Fire Ins. Co. v. Shedd, 16 App. D. C. 150; 28 W. L R. 290. A building held not completed so as to affect rights of subcontractors when there yet remained a downspout to be placed, iron shelves to be placed in the vault, a broken plate-glass window to be replaced, the mosaic floor to be cleaned and polished, alterations to be made in the front of the building, gas fixtures to be hung, etc. lb. VII. Subcontractors. A subcontractor can have no greater right against the owner than the contractor himself, except, perhaps, that the contractor may stipulate not Mechanics' Liens. 645 to have recourse to his statutory lien, but may not stipulate away the right of the subcontractor in that regard. Herrcl v. Donovan, 7 App. D. C. 323; 23 W. ly. R. 831. Subcontractors, equally with the contractor, are bound by the terms of payment stipulated for in the contract between the owner and the builder. lb. Where a building contract contains provisions for specific payments in instalments from time to time as the work progresses, and for a final payment upon completion, and upon the production in each case of a receipt or release from the subcontractors, it is not competent for the owner and builder to cut out the subcontractors and nullify the mechanics' lien law by a supplemental agreement between themselves to anticipate the final payment and dispense with the requirement of releases from the subcontractors, at least not without due notice to the latter, who have in reliance upon such provisions of the building contract entered upon the performance of the work required by their subcontracts, and ample opportunity to them to protect their interests. Riggs Fire Ins. Co. v. Shedd, 16 App. D. C. 150; 38 W. L. R. 390. That the final payment in such case was made to a surety of the builder, upon his agreement to settle the claims of the subcontractors, will not relieve the owner from liability where the surety fails to carry out his agreement and appropriates the money to payment of his own claims against the builder. lb. While the subcontractor, in the enforcement of his statutory right, is bound by the terms of the contract between the owner and builder, he is equally entitled to the benefits of the contract so far as it inures to his advantage. lb. VIII. Priority of Other Liens. An agreement by a building and loan association to lend an owner of real estate a certain sum to be paid in instalments at certain stages in the construction of buildings, and the record of the deed of trust securing the loan before any contract made for the construction in any particular, give such conveyance priority over liens for labor and materials supplied under subsequent contracts for construction. Anglo-American S. & L. Assn. V. Campbell, 13 App. D. C. 581 ; 27 W. L. R. 3 . As to whether the Hen of a subcontractor will take precedence of a deed of trust executed more than three months after the subcontractor claimed to have completed his work without notice of lien being filed, and neither the trustee or beneficiary named in the deed of trust having notice of a supplemental agreement under the terms of which defects in certain of the work were to be remedied by the subcontractor. Albaugh v. Litho- Marble Decorating Co., 14 App. D. C. 113 ; 37 W. L. R. 130. IX. Trusts in favor of Lienholders. A constructive trust in favor of those furnishing labor and materials in the construction of houses in reliance upon representations as to the amount and purposes of a loan made by a building association, will be raised as to the amount of an instalment of the loan retained by the association without justification. Anglo-American S. & L. Assn. v. Campbell, 13 App. D. C. 581; 27 W. L. R. 3. 646 Mechanics' Liens. The mere agreement by a building association to advance a certain sum for constructing buildings will not impress with a trust in favor of mechanics' lienholders a balance of the last instalment in the hands of the association, retained by it under a claim that the buildings did not come up to the plans and specifications ; nor can the promise made to the owner of the payment of the entire sum be enforced in equity, upon that ground alone, in favor of such lienholders. lb. X. Suits to enforce. In a suit to enforce a mechanic's lien a former owner held not to be a necessary party where no process or decree against him was prayed for and it was not shown that he was bound by covenant in his deed to the present owner against incumbrances or that he was in any way inter- ested in the property. LeUer v. Porsberg, 1 App. D. C. 36 ; 21 W. L. R. 585. Persons claiming mechanics' liens who are made parties defendant to a suit by other holders "of similar liens are not required, as a prerequisite to participation in the relief sought by the bill, to take affirmative action by cross-bill, petition, or otherwise. Bmack v. Campbell, 14 App. D. C. 186; 27 W. L. R. 214. It is the right of mortgagees and others acquiring an interest in prop- erty against which a mechanics' lien is sought to be enforced, to require and insist upon strict proof of everything essential to maintain the lien. Brown v. Waring, 1 App. D. C. 378 ; 21 W. L. R. 746. While the mechanics' lien law of July 2, 1884, only authorizes a personal judgment against the party who incurred the debt, where in a proceed- ing under the statute by a sub-contractor against the principal contractor and the owners of the buildings, the owners admit assets in their hands justly payable for the construction of the buildings and more than suf- ficient to pay all outstanding claims, it is proper for the court, in con- sideration of such admission, to award a personal judgment against the owners. Bmack v. Rushenberger, 8 App. D. C. 249 ; 24 W. L. R. 486. XI. Satisfaction of. Where the aggregate of claims for which liens are filed exceeds the balance in the owner's hands, such balance should be distributed pro rata; and claims paid or satisfied by the owner out of said balance should be taken into account and credit allowed to the owner for the pro rata share to which such claimants are entitled. Bmack v. Campbell, 14 App. D. C. 186; 27 W. L. R. 214. As to liability of building association making a building loan to see that the money is applied to the satisfaction of liens for labor and materials. See Anglo-American S. & L. Assn. r. Campbell, 13 App. D. C. 581; 27 W. L. R. 2. XII. In General. As to effect of Mechanics' Lien Law of 1884 to repeal §§ 709, 710, R. S. D. C. See Columbia Brick Co. v. Dis. of Col. 1 App. D. C. 351; 21 W. L. R. 739. See also Interpleader ; Judgments and Decrees ; Practice and Pro- cedure. Medals of Honor — Mental Sueeering. 647 MEDALS OF HONOR. As to who entitled to, under act of of Mar. 3, 1863. See DeArnaud v. A'inszvorth, 24 App. D. C. 167. MEDICAL EXAMINATION. See Insurance. MEDICAL PRACTICE. As to what constitutes. See Springer v. Dis. of Col., 33 App. D. C. 59 ; 32 W. L. R. 30. See Poi,icE Power. MEDICAL STUDENTS. Competency as expert witnesses. See Hamilton v. United States, 36 App. D. C. 282 ; 34 W. L. R. 558. MEDICAL SUPERVISORS. As to sufficiency of complaint to justify revocation of license of physi- cian on ground of unprofessional and dishonorable conduct. See Czarra V. Medical Supervisors, 24 App. D. C. 251 ; 33 W. L. R. 744. As to power to revoke license of physician. See lb. MEDICAL WITNESS. See Evidence; Witnesses. MEDICAL PREPARATIONS. Medical preparations are not intoxicating liquors within meaning of act of Mar. 3, 1893. Mackall v. Dis. of Col, 16 App. D. C. 301; 28 W. L. R. 351. MEMBERS OF CONGRESS. Members of Congress are not privileged from being sued in this Dis- trict while in attendance upon its sessions. Hoivard v. Citizens' B. & T. Co., 13 App. D. C. 323 ; -36 W. L. R. 101. A member of Congress present in this District for the purpose of at- tending upon its sessions is to be regarded in the absence of a plain, unequivocal statement to the contrary, as an inhabitant and resident of the State from which he comes, and therefore a nonresident of the District within the meaning of our attachment laws. lb. MENTAL CAPACITY. As to competency of witness to give evidence of opinion. See Turner V. American Sec. & T. Co., 29 App. D. C. 460; 35 W. L. R. 303. Evidence of mental incapacity to execute deed held insufficient. Critch- field V. Easterday, 26 App. D. C. 89 ; 33 W. L. R. 504. See Contracts; Wiles. MENTAL SUFFERING. As element of damages for libel. See Norfolk & Wash. Steamboat. Co. V. Davis, 12 App. D. C. 306; 26 W. L. R. 361; Washington Times Co. v. Downey, 26 App. D. C. 358; 33 W. L. R. 770. As element of damage in suit for physical injury. See McDermott'v. Severe, 302 U. S. 600; 34 W. L. R. 577; Wash. & G. R. R. Co. v. Dashiell, 7 App. D. C. 507; 34 W. L. R. 40. 648 Mbrgbr — Ministerial Duties. MERGER. Of equitable lien in award of arbitrators. See Sanborn v. Maxwell, 18 App. D. C. 245 ; 29 W. L. R. 607. Of judgment at law in decree in judgment creditor's suit. See Davis V. Sanders, 25 App. D. C. 26; 33 W. L. R. 101. Of demand sued on in judgment rendered. lb. Of corporations. See Corporations. MESNE PROFITS. See EjEctmbnt. MESSENGERS. Character as common carrier of company engaged in supplying mes- senger service. White v. Postal Telegraph & C. Co., 25 App. D. C. 364; 33 W. L. R. 295. Liability of messenger company for loss of money entrusted to a mes- senger for transportation. lb. METROPOLITAN POLICE. See District of Columbia; Pouce. METROPOLITAN RAILROAD COMPANY. As to power of Congress to require extension of road. See Metro- politan R. R. Co. V. Macfarland, 20 App. D. C. 421 ; 30 W. L. R. 710. MEXICO. See Public Lands. MILEAGE. As to right of successful party in civil suit to have mileage of necessary non-resident witness taxed as costs. See Wash. & G. R. R. Co. v. American Car Co., 5 App. D. C. 524; 23 W. L. R. 241. MILE LIMIT. See Intoxicating Liquors; Soldiers' Home. MILITARY LAW. See Army and Navy. MILK ADULTERATION. See Pure Food Law. MILK LAW. Section 13 of the act of Mar. 2, 1895, making provision for the analysis of samples of milk, was repealed by the provisions of §§ 4, 6, 7, 8 of the act of Feb. 17, 1898. Weigand v. Dis. of Col. 22 App. D. C. 559; 31 W. L. R. 730. As to validity of regulation of August 1, 1901. See Thompson v. Dis. of Col., 21 App. D. C. 395 ; 31 W. L. R. 305. MINING LAW. As to lands open to exploration and entry under the mining laws. See Riverside Oil Co. v. Hitchcock, 21 App. D. C. 252; 31 W. L. R. 174. MINISTERS. See Ecclesiastical Law. MINISTERIAL DUTIES. The duty of the clerk of court to receive a declaration of intention to become naturalized is purely ministerial. Opisso v. Young, 31 W. L. R. 276. See Mandamus. MiNiSTERiAi, Officers — MisreprusenTaYionS. 649 MINISTERIAL OFFICERS. The Board of Labor Employment at Navy Yard are ministerial of- ficers and their duty did not cease to be ministerial because they rested their refusal of registration on the determination of a pure question of law involving the ascertainment of no fact. U. S. ex rel. Rodriguez V. Bowyer, 25 App. D. C. 121 ; 33 W. L. R. 164. As to discretionary power of recorder of deeds. See Dancy v. Clark, 34 App. D. C. 487 ; 33 W. L. R. 18. MINORS. As to enlistment in military service. See Blliott v. Harris, 24 App. D. C. 11; 32 W. L. R. 378. Validity of transfer to father of minors, of property bequeathed to them. Darlington v. Turner, 24 App. D. C. 573 ; 33 W. L. R. 114. As to offense of selling liquor to. See LoefHer v. Dis. of Col., 15 App. D. C. 329; 28 W. L. R. 6. As to effect of possibility of minor heirs attacking will under which title derived, to cast doubt upon a title so as to relieve a purchaser from performing his contract. See McCaffrey v. Little, 20 App. D. C. 116 ; 30 W. L. R. 580. See Army and Navy ; Infants ; Parent and Child. MINOR STREETS. See Condemnation of Land; Streets and Side- walks. MISCARRIAGE, PROCUREMENT OF. See Abortion and Mis- carriage. MISCONDUCT IN OFFICE. As to sufficiency of indictment for conspiracy to commit. See United States V. Beavers, 34 W. L. R. 62. As to sufficiency of indictment for offense of. See Tyner v. United States, 23 App. D. C. 324; 32 W. L. R. 258. MISNOMER. As to effect of misnomer of corporation as devisee and legatee under a will. See Colbert v. Speer, 24 App. D. C. 187; 32 W. L. R. 678. See Contracts. MISREPRESENTATIONS. A purchaser of real property who after discovering fraud performs acts of ownership, can not rescind contract of sale because of vendor's misrepresentations with reference to its area. Shappirio v. Goldberg, 192 U. S. 232; 32 W. L. R. 133. As to avoidance of fidelity insurance bond by false statements of em- ployer. See Waring v. United States fidelity, &c. Co., 24 App. D. C. 119; 32 W. L. R. 394. As defense to an action at law on a contract. See Whiting v. Davidge, 33 App. D. C. 156 ; 33 W. L. R. 114. See Deceit; Fraud. 6so Mistake — MoneV. MISTAKE. Where money is paid by a mistake of fact, neither party being in fault, the party paying the money may recover it back as money paid without consideration, and therefore money had and received by the defendant to the use of the plaintiff. Straus v. Hensey, 9 App. D. C. 541 ; 25 W. L. R. 21. Defendant was the holder of certain worthless and fraudulent notes and deeds of trust upon which one H had, by simulating the name of and representing himself to be J, the owner of the property, obtained money from him. Subsequently H perpetrated a like fraud, for a larger amount, upon plaintiff, who with part of the loan made by him to H took up the notes held by defendant in order to clear the property of the trusts securing them. Both parties believed H to be the owner. Held that plaintiff was entitled to recover from defendant the money so paid. lb. If a party seeks to have a contract rescinded or changed in a material particular, upon the ground of mistake, he must, upon discovery of the facts, at once announce his purpose and adhere to it ; otherwise he will be held to have waived the objection and be bound as if no mistake had occurred. Shappirio v. Goldberg, 20 App. D. C. 185 ; 30 W. L. R. 450 ; af- firmed in 192 U. S. 232. As groimd for reformation of deed. See Marshall v. Lane, 27 App. D. C. 276; 34 W. L. R. 290. Mistake of fact as ground for reformation of written instrument must be mutual. Memorial Church v. Northwestern Nat. Ins. Co., 33 W. l^. R. 693. As to effect of mistake in occupying land on right to acquire title by ad- verse possession. See Johnson v. Thomas, 23 App. D. C. 141; 32 W. L. R. 69. As defense to an action at law on a contract. See Whiting v. Davidge, 23 App. D. C. 156; 32 W. L. R. 114. As ground for vacating sale under execution. See Starr v. United States, 8 App. D. C. 552 ; 24 W. L. R. 503. See Patents. MODELS. See Patents. MONEY. As to what constitutes public moneys of the United States within the meaning of the acts relating to embezzlement by disbursing officers and other custodians. See Kicckhoefcr v. United States, 19 App. D. C. 405; 30 W. L. R. S19. The stealing of money, the property of inspectors, placed in decoy let- ters for the purpose of detection, is not punishable under the act of Mar. 3, 1875, as such money was not the property of the United States. United States V. Scott, 27 W. L. R. 291. Money is not the only medium of exchange to constitute business of dealing in second-hand articles. Laslcy v. Dis. of Col. 14 App. D. C. 407; 27 W, L. R. 324. Embezzlement of, what constitutes. Staples v. Johnson, 25 App. D. C. 155; 33 W. L. R. 183. Monuments — Mortgages and Deeds oe Yrust. 651 Burden of proof that messenger company assumes status of insurer of money entrusted to it is on party alleging it. White v. Postal Telegraph &■ C. Co., 35 App. D, C. 364; 33 W. L. R. 395. Sufficiency of description in indictment for theft. Davis v. United States, 18 App. D. C. 468 ; 29 W. L. R. 574. As to variance between allegations of indictment for theft, and proof. Ih. As property within meaning of Testamentary Act of 1798, subch. 14. § 11. See Estate of McKnight, 1 App. D. C. 28 ; 21 W. L. R. 587. MONUMENTS. As to allowance from estate of decedent for monument over grave. See Estate of Tucker, 34 W. L. R. 261. MORTGAGES AND DEEDS OF TRUST. I. Nature and Essentials. II. Law Governing. III. Estates of Parties to. IV. Rights of Party Secured. V. Rights of Mortgagor and Wife. VI. Trustees; Their Rights, Title and Duty. VII. What Subject to. VIII. Priority of Lien. IX. Insurance. X. Record as Notice. XI. Assumption of Mortgage Debt. Xn. Release. XIII. Foreclosure and Sale. XIV. Married Women. XV. Generally. L Nature and Essentials. A deed of trust is the equivalent of a mortgage in this District. Middle- ton V. Parke, 3 App. D. C. 149 ; 22 W. L. R. 265. A deed of trust as used in this District to secure debt is in its nature and effect a mortgage ; and except as against the mortgagee, the mort- gagor or grantor while in possession and before foreclosure is the real owner of the property. Wood v. Grayson, 22 App. D. C. 432 ; 31 W. L. R. 663. A deed of trust acknowledged before a justice of the peace cannot be invalidated on the ground that the justice was illegally appointed to his office, if the office itself existed under the law. CrutchHeld v. Hezvett, 2 App. D. C. 373; 22 W. L. R. 127. A mortgage securing a negotiable note is an incident of the debt, and passes with its assignment. The debt evidenced by the note gives char- acter to the mortgage, and protects it from equities between mortgagor and mortgagee on behalf of a bona fide holder for value. Brewer v. Slater, 18 App. D. C. 48 ; 29 W. L. R. 259. Where a deed of trust by one corporation to another as trustee is formally executed by the grantor and grantee with their respective cor- porate seals and regularly delivered to the latter who holds it in execu- tion of the trust, neither acknowledgment for record, nor record, are necessary to pass the title, or to protect the rights of beneficiaries of the 652 Mortgages and Deeds of Trust. trust as against an assignee for the benefit of creditors. Basiern Trust &c. Co. V. Willis, 6 App. D. C. 375 ; 23 W. L. R. 417. A deed of trust purporting on its face to be executed by a guardian in pursuance of authority granted by the court, is not invalidated by the fact that the word "widow"' is annexed to the signature of such guardian. Middleton v. Parke, 3 App. D. C. 149 ; 23 W. L. R. 265. As to sufficiency of showing that deed absolute on its face was intended as a mortgage. See Hayward v. Mayse, 1 App. D. C. 139; 21 W. L. R. 619. In a suit to have a deed absolute on its face declared a mortgage, self- serving declarations of the deceased grantee, not made in the presence of the grantor or communicated to him, are inadmissible on behalf of his executor. Nieman v. Mitchell, 2 App. D. C. 195 ; 23 W. L. R. 59. II. Law Governing. The enforcement in equity of mortgages and deeds of trust by way of mortgages of real estate is governed by the law of limitations applicable to possessory actions at common law for the recovery of real estate, which is the period of twenty years prescribed by the statute of 21 James I, ch. 16. Sis V. Boarman, 11 App. D. C. 116 ; 25 W. L. R. 431. The grantee in a deed of trust, a foreign corporation, having under its charter power to execute the trust contained in such deed, the fact that the laws of the District did not authorize the organization of corporations with such powers, will not prevent it from executing the trust in this District. Eastern Trust &c. Co. v. Willis, 6 App. D. C. 375; 23 W. L. R. 417. III. Estates of Parties to. A covenant in a deed of trust for the retention of possession of the mortgaged property by the mortgagor until default made, creates a legal estate for years in the mortgagor, which, no default having occurred, devolves as a chattel interest upon his administrator. Wilkes v. Wilkes, 18 App. D. C. 90; 29 W. L. R. 261. Neither the beneficiary under a deed of trust by way of mortgage, nor the trustee in the deed has such an estate in the property as to entitle him to partition, but the purchaser at a sale under the deed of trust may mainain a suit for partition. Sis v. Boarman, 11 App. D. C. 116; 35 W. L. R. 431. To maintain the form of proceeding provided by the act of July 4, 1864, the conventional relation of landlord and tenant must exist or have existed between the parties ; and a mortgagee holds no such relation to a mort- gagor in possession. Willis v. Eastern T. & B. Co., 160 U. S. 295 ; 26 W. L. R. 166. The relation of landlord and tenant between mortgagor and mortgagee after default is not created by a provision in the deed of trust that the mortgagor may remain in possession until default in payment is made. lb. IV. Rights of Party Secured. A mortgagee, or his assignee, can have no greater right than the mortgagor has against his grantee, and if such right of the mortgagor Mortgages and Dkeds oif Trust. 653 is released or barred, the right of the mortgagee is also barred. Willard V. Wood, 1 App. D. C. 44 ; 21 W. L. R. 579. A mortgagee may avail himself of covenants and agreements of the vendee of the mortgagor who assumes the payment of the mortgage debt. lb. A vendee assuming payment of a mortgage is, as between himself and his vendor, the principal debtor, and the vendor is to the mortgagee liable as a surety. Ih. A mortgagee may in equity enforce for his own benefit the obligation or security which a grantee from the mortgagor gives the latter for payment of the mortgage debt by assuming such debt in the conveyance to him or in consequence of such conveyance; and to such a proceeding the mortgagor is a proper, although perhaps not a necessary party, and no personal decree can be rendered against him until the security itself is exhausted. Giesy v. Gregory, 15 App. D. C. 49 ; 27 W. L. R. 416. Party secured by deed of trust on property affected by proceedings under acts of 1893 and 1894, for opening alley or minor street, not enti- tled to notice. Martin v. Dis. of Col, 36 App. D. C. 146; 33 W. L. R. 742. One, who, by representation that a note was secured by a first mort- gage, induces another to accept it, and does not make known to such party that the mortgage embraced a second note also in which he was payee, is estopped to deny the truth of his representation, and as to his rights against her will be treated in equity as a second mortgagee; and his transferee after maturity has no superior rights. Cropley v. Byster, 9 App. D. C. 373 ; 34 W. L. R. 829. V. Rights of Mortgagor and Wife. The relinquishment of an inchoate right of dower which a married worrian makes by joining in a deed with h^r husband, can operate against her only by waji of estoppel ; and where such conveyance is a deed of trust which secures the payment of a fictitious debt, executed by the husband to defraud his creditors, and the wife's action does not mislead or prejudice anyone dealing with the property, her right of dower is not released PoUansbee v. Follansbee, 1 App. D. C. 326 ; 21 W. L. R. 763. An incumbrancer who has been required to take up a prior lien for the protection of his mortgage, is entitled to be substituted in the place and stead of the prior lien holder as against third parties dealing with the estate with notice. Pleasants v. Fay, 13 App. D, C. 237 ; 26 W. L. R. 628. VI. Trustees; their Rights, Title and Duty. Trustees under a deed of trust by way of mortgage cannot, upon the default, maintain a proceeding to recover possession of the premises under the act of July 4, 1864, ch. 243, (§§ 680-691, R. S. D. C), regu- lating proceedings in cases between landlords and tenants. Willis v. Eastern T. & B. Co., 169 U. S. 395 ; 26 W. L. R. 166. The title of the trustee in a conveyance by way of mortgage or deed in trust to secure the discharge of an obligation recited therein is limited solely to the use and benefit of the mortgagee and those in privity with him; and consequently, a stranger or third person, when sued in ejectment by the mortgagor, can not set up such mortgage or conveyance in trust 654 Mortgages and Deeds oe Trust. as a bar to recovery by the plaintiff. Smith v. Sullivan, 20 App, D. C. 553 ; 31 W. L. R. 2. Where suit was brought in Maryland to foreclose a trust deed executed by a railroad company conveying all its property, including certain grants of rights of way in this District to secure an issue of bonds, and a decree of foreclosure passed appointing complainant, who was the trustee named in the trust deed, to make the sale, held that whether or not the Mary- land court had jurisdiction to foreclose the trust deed as to property situated in this District, the legal title to such property having been vested in said trustee by the trust deed, the deed executed by the trustee to the purchaser at such sale conveyed the legal title thereto. Chesapeake Beach Ry. Co. V. Washington, P. & C. R. R. Co., 23 App. D. C. 587; 32 W. L. R. 309. Where a trustee, on default, made sale of the property upon condition that he should first obtain possession thereof, held not an execution of the trust, and that title did not pass out of the trustee, and that he might maintain an action for its recovery. Eastern Trust &c. Co. v. Willis, 6 App. D. C. 375 ; 23 W. L. R. 417. Trustees under a deed of trust have not the same discretion as other trustees, their powers and duties being prescribed by the deed. Wheeler V. McBlair, 5 App. D. C. 375 ;. 23 W. L. R. 153. The powers and duties of trustees in deeds of trust are prescribed by the deed and in making sale they have not the same direction as trustees to sell for partition and the like. Anderson v. White, 2 App. D. C. 408 ; 22 W. L. R. 159. A trustee under a deed of trust securing bonds is the legal representa- tive of the bondholders and is answerable to them for misconduct in the matter of foreclosure. Parsons v. Little, 28 App. D. C. 218; 35 W. L. R. 46. The first duty of a trustee is to the party secured, in respect of making sale under the deed, but he is under an equal obligation to the debtor to fairly conduct the sale and keep expenses thereof within reasonable bounds. Smith v. Olcott, 19 App. D. C. 61; 29 W. L. R. 766. Assuming that trustees under a deed of trust are entitled to an allow- ance for auctioneer's fees as legitimate expenses of sale, it is their duty to arrange therefor in advance for the protection of the mortgagor's in- terests as well as those of the holder of the first secured note; and a common practice on the part of such trustees to stipulate for nominal or reduced charges by auctioneers in case the proceeds of sale are insuf- ficient to pay the entire debt and expenses, and to permit them to exact the exorbitant fees estimated according to the rate of the act of assembly where there is a surplus, is one which the court will not sanction. Ih. As to substitution for absent trustee. See Marshall v. Kraak, 23 App. D. C. 129; 32 W. L. R. 130. VII. What Subject to. The lien of a deed of trust extends to money paid by the purchaser at a sale under the deed of trust for taxes pending litigation which results in the vacation of the sale. Taylor v. Girard Life Ins. Co., 1 App. D. C. 209; 21 W. L. R. 633, Mortgages and Deeds of Trust. 655 A deed of trust given by a member of a building and loan association to secure a loan made to him by it, cannot by mere reference to the charter and by-laws of the association, be held to secure the payment of possibly accruing dues after the discharge of the last note secured by it. Building Assn. v. Olmstead, 16 App. D. C. 387; 28 W. L. R. 409. As to right of mortgagee loaning money to wrongful possessors of real property to equitable lien on land for the value of improvements placed thereon with the money loaned. See Armstrong v. Ashley, 22 App. D. C. 368 ; 31 W. L. R. 439 ; affirmed in 204 U. S. 272. Where, after the execution of a mortgage of real estate, chattels which belong to a third person, or upon which such third person has a chattel mortgage or a lien, are affixed to the realty, his interest or lien does not thereby become subject to the prior mortgage, provided the chattels may be detached without injury to the freehold; and so held as to cer- tain steam radiators. Mott Iron IVorks v. Middle States &c. Co., 17 App. D. C. 584; 29 W. L. R. 187. VIII. Priority of Lien. As to superiority of equitable right of a deed of trust creditor over that of a judgment creditor in property omitted from the deed by mistake. See Manogue v. Bryant, 15 App. D. C. 245; 27 W. L. R. 478. As to attachment of chattels which are subject to a deed of trust. _ See The Richmond v. Cake, 1 App. D. C. 447; 21 W. L. R. 819. As to priority of lien of deed of trust to secure a building loan over a purchase-money mortgage. See Anglo-American S. & L. Assn. v. Camp- hell, 13 App. D. C. 581 ; 27 W. L. R. 2. As to priority of lien of deed of trust over mechanics' liens. See lb. As to priority of liens of. See Weightman v. Critic Co., 4 App. D. C. 136; 22 W. L. R. 665. IX. Insurance. While a covenant to insure, in a mortgage, does not run with the land so that an actual grantee taking subject to the mortgage is bound by the covenant, when a mortgagor after failing to insure transfers the property to a voluntary assignee the proceeds of insurance taken out by him inures to the benefit of the mortgagee and cannot be retained by the assignee as representing his interest or that of general unsecured creditors in the equity of the property. American Ice Co. v. Eastern T. & B. Co., 188 U. S. 626; 31 W. L. R. 164. A provision in a deed of trust requiring the property to be kept insured in a certain amount for the better security of the loan gives to the trustee an equitable lien on the proceeds of policies of insurance existing on the property at the time of the execution of the deed of trust. Brown v. Commercial Fire Ins. Co., 21 App. D. C. 325 ; 31 W. L. R. 206. The trustee under a deed of trust to whom a policy of insurance is de- livered by the insurer on which is endorsed a provision that loss is pay- able to the trustee "as his interest may appear," makes him an assignee of the policy with right of action thereon. lb. As to waiver of provision in policy of fire insurance against incumbering the property insured. See /&, 656 Mortgages and Deeds oe Trust. As to covenant to insure and application of proceeds running with the land and effect on assignee for the benefit of creditors. See Bastern Trust &■ Banking Co. v. American Ice Co., 14 App. D. C. 304; 27 W. L. R. 183. Effect of execution of chattel deed of trust as breach of condition of policy of insurance against incumbrance by chattel mortgage. See Hunt V. Springfield P. & M. Ins. Co., 20 App. D. C. 48 ; 30 W. L. R. 636. X. Record as Notice. A deed of trust duly acknowledged and certified according to law is notice to all the world from the time of its delivery for record; and the transcript of it upon the record becomes notice as soon as it is transcribed. Sis V. Boarman, 11 App. D. C. 116 ; 25 W. L. R. 431. It is to the deed itself, and the transcript thereof that §§ 446, 447, R. S. D. C. gives force and efficacy as notice, and not to the certificate of acknowledgment; and the effect of a deed properly acknowledged and certified as notice is not lost or destroyed by the fact that the certificate has been incorrectly transcribed on the land records. Ih. Effect of record of mortgage executed by wrongful occupants of land to charge owner with constructive notice thereof or impose upon him duties as respects the mortgagee. See Armstrong v. Ashley, 22 App. D. C. 368 ; 31 W. L. R. 439 ; affirmed in 204 U. S. 272. XI. Assumption of Mortgage Debt. The assumption of a mortgage in a deed has the effect of a simple con- tract and not that of a specialty obligation or covenant. Willard v. Wood, 1 App. D, C. 44 ; 21 W. L. R. 579. The payment of interest upon an incumbrance on property by a pur- chaser thereof is not inconsistent with his not having assumed the pay- ment of the incumbrance; but where such interest was paid upon a de- mand founded upon a legal obligation to pay, not denied, the payment will be considered as strong corroboration of the recitals in the deed as to assumption. Osborne v. Davidson Mortgage Co., 8 App. D. C. 481; 24 W. L. R. 313. Where an incumbrance, supposed by both vendor and vendee to sub- sist against property, and assumed by the vendee as part of the purchase- money, has in fact been released, the vendor will have an equitable lien for that part of the purchase-money represented by the supposed incum- brance. Such lien would attach even in the absence of a special agree- ment as to assumption in the conveyance. Pleasants v. Fay, 13 App. D. C. 237; 26 W. L. R. 628. The bona fide purchaser for value of property, subject to an equitable mortgage, without notice of such mortgage, takes the property free there- from. Lynch V. Murphy, 161 U. S. 247 ; 24 W. L. R. 456. As to charging a husband with assumption of a mortgage debt made part of the consideration for a conveyance to his wife. See Dorsey v. Manning, 15 App. D. C. 391 ; 27 W. L. R. 788. As to whether any one other than the parties to a conveyance can be held liable on an assumption of an encumbrance on the property. See lb. XII. Release. A note secured by deed of trust was by its terms made payable at the Mortgages and Deeds o-e Trust. 657 office of A. Shortly before its maturity the holder sent it to A for col- lection or to have it extended. S, then owner of the property, paid the amount of the note to A, who joined with his .co- trustee, to whom he exhibited what purported to be the original note dulj; cancelled, in a re- lease of the property. A, however, returned to the holder what purported to be" the genuine note, with an extension of time of payment indorsed thereon. Held, that A, in receiving payment of the note, acted as the agent of the holder; that S, was justified in assuming that A had author- ity to receive payment, and was not negligent in paying the note by a check drawn to the order of A; that his payment to A discharged him from further liability on the note, and the trust was therefore properly released. Pifth Congregational Church v. Bright, 28 App. D. C. 229 ; 34 W. L. R. 718. As to right of one purchasing property subject to a deed of trust secur- ing a loan by a building and loan association, to release of deed of trust on payment of last of notes secured. See Building Assn. v. Olmstead, 16 App. D. C. 387 ; 28 W. L. R. 409. XIII. Foreclosure and Sale. Where the title to mortgaged property has been determined to be in the United States and an appeal is pending, there should be no sale of the property under a deed of trust given by the adverse claimant. East- ern Trust & Banking Co. v. American Ice Co., 14 App. D. C. 304; 27 W. L. R. 182. In a foreclosure suit by a jimior mortgage encumbrancer, a decree au- thorizing sale of the property as a whole, although each of two prior mortgages covers only a portion of the property, is proper where all the mortgage debts are overdue and all parties interested are before the court; the decree in the alternative providing for separate sale in parcels in the discretion of the trustees. Wood v. Grayson, 22 App. D. C. 432; 31 W. L. R. 663. A sale by the trustees named in a deed of trust securing an issue of bonds executed in Maine and covering property in that State and also in this District, of the property located there, will be presumed, in the absence of affirmative proof to the contrary, to have been fairly and legally made. But, as preliminary to a decree for foreclosure and sale of the property in this District, the mortgagor and its general creditors will be entitled to an accounting by the trustee for the proceeds of sale of the Maine property, in order that it may be determined with certainty for what amount a decree should be passed. Eastern Trust & Banking Co. V. American Ice Co.^ 14 App. D. C. 304; 27 W. L. R. 183. As to right of holder of bonds of corporation to intervene in suit to foreclose deed of trust securing same. See Parsons v. Little, 28 App. D. C. 218; 35 W. L. R. 46. A decree passed in a foreclosure suit for default in payment of notes secured and money advanced for insurance and taxes, which sets forth the various items of debt due and provides that unless the same are paid the property included in the deed should be sold, is a sufficient finding that the money was due and that its non-payment was a breach of the condi- tions of the deed of trust ; and in case of a deed of trust it is immaterial 658 Mortgages and Deeds oe Trust. that the decree failed to fix a definite time for redemption. Taylor v. Girard Life Ins. Co., 1 App. D. C. 209 ; 21 W. L. R. 611. After foreclosure of a deed of trust in which there is a reservation to the grantor of right to possession and enjoyment and to rents and profits until default made, the purchaser at the sale may maintain a. land- lord and tenant proceeding against the grantor under §§ 680, 681, 684, R. S. D. C, for possession. Such reservation has the effect of a redemise of the 'premises to the mortgagor or grantor. Loving zi. Bartlett, 4 App. D. C. 1; 22 W. L. R. 398. Where the purchase-money of real estate is paid partly in cash and partly in notes secured by a deed of trust on the property, and the purchaser subsequently negotiates another loan on the property with one who advances the money to take up such notes and who becomes the holder thereof, such lender, although himself secured by a deed of trust for his advances, becomes subrogated to all the rights and equities of the original vendor and is entitled to foreclosure of the deed of trust under which he was secured. Utermehle v. McGreal, 1 App. D. C. 359; 21 "W. L. R. 755. It is optional with the holder of a deed of trust to foreclose either by directing a sale by the trustees named therein, or by judicial process. Ih. Whether the trustees in a deed of trust, being charged with the express duty of making the sale, can lawfully make the fees of the auctioneer employed by them to cry the sale a charge against the proceeds of sale, or are personally liable therefor, held not necessary to determine where the party entitled to the surplus recognized such fees as chargeable against the proceeds and was willing to allow a charge reckoned in accordance with the fees prescribed by rule of court in chancery cases, and ac- quiesced in a decree by which the fees were fixed substantially on that basis. Smith v. Olcott, 19 App. D. C. 61; 29 W. L. R. 766. The surplus proceeds of sale under a deed of trust to secure debts, made after the death of grantor who dies intestate, go to his heirs, al- though the conveyance provides that it shall be payable to the grantor, "his executors, administrators and assigns." Burke v. Robinson, 29 W. L. R. 654. In a suit to enjoin a sale under a deed of trust covering a liquor license and all rights of renewal, the fixtures and furniture in the saloon, and all stock in trade appertaining to said saloon, wheresoever situated, and providing that upon default in payment the trustee might take possession and sell the same, it was urged by complainant that the trustee could not advertise and sell without first taking possession; that the stock in trade at the time of the proposed sale was different from that in existence when the deed of trust was executed and at the time of default made; and that a hquor license was not the subject of conveyance by deed of trust. Held that as to the first ground, the grantor being in possession notwithstanding his default, a court of equity would not aid him in taking advantage of his own wrong; and that as to the other grounds of relief urged, the principle applied that he who seeks equity must do equity ; and that the court below properly refused to enjoin the sale. Sullivan v. Bailey, 21 App. D. C. 100 ; 31 W. L. R. 111. Release of indorser of note from liability for deficit after sale under Mortgages and Deuds of Trust. 659 deed of trust, by performance of agreement made with one of holders of note who were trustees under the deed of trust and purchasers at sale. Ubho-ff V. Brandenburg, 26 App. D. C. 3; 33 W. L. R. 473. Mere uncertainty whether the estate of remaindermen conveyed by deed of trust might be divested in whole or in part by the death of one of them before the determination of the life estate, does not justify a re- fusal of foreclosure and sale under such deed, notwithstanding it might affect the price realized, fields v. Gwynn, 19 App. D. C. 99 ; 29 W. L. R. 834. In a suit to foreclose a mortgage, it was held on a former appeal that a sale of certain wharf property covered by the mortgage should not be had pending a litigation in which the title to the property as between the United States and the mortgagor was involved. The question was determined by the Supreme Court in favor of the United States, but the cause was remanded for a determination of what rights, if any, the mort- gagor had as occupant of the wharves, and for a valuation of such rights and just compensation therefor. Thereafter no action was had, either by the United States or by the mortgagor (the mortgagee not being a party to the litigation), for the ascertainment of such rights. It was held that a decree in the foreclosure proceedings for the sale of the mortgaged property was proper. American Ice Co. v. Eastern Trust & B. Co., 17 App. D. C. 422 ; 29 W. L. R. 55. Where, in a deed of trust to secure the payment of a principal note and a series of interest notes, provision is made for sale "upon default in the payment of said notes or any instalment of interest thereon", a de- fault in the payment of the first interest note justifies a sale. Wheeler V. McBlair, 5 App. D. C. 375 ; 23 W. L. R. 153. In a proceeding to foreclose a mortgage, the court may, either on the hearing or through reference to the auditor, ascertain the amount due. The reference to the auditor is a matter of discretion. Smith v. Gilmore, 7 App. D. C. 192 ; 23 W. L. R. 717 ; Taylor v. Girard Life Ins. Co., 1 App. D. C. 209; 21 W. L. R. 611. On a bill to foreclose a mortgage covering land both in Maryland and in this District, as to the lands located in the District, the proceeds of foreclosure as to the . Maryland lands will be ascertained and credited before foreclosure here; but if no foreclosure has been had as to such Maryland lands, the decree here will be for the entire amount. Smith v. Gilmore, 7 App. D. C. 192 ; 23 W. L. R. 717. Where property was conveyed to S subject to a deed of trust to M, and subsequently the property was sold under the trust and bid off in the name of G, who was not present at the sale but assented to the use of his name by conveying the property to a sister of M, which deed he sub- sequently attempted to cancel by erasing his name and by making a deed to E. T., in whose name a deed was then made to the sister of M. Held, that notwithstanding the irregularities in the sale to G., and the fact that E. T. was a fictitious person invented by M. in aid of a fraudulent scheme to get possession of the property, the heirs of S. had no equity entitling them to have the sale under the deed of trusts annulled, especially after the lapse of fifteen years; and that the title vested in M. by the deed from G., and was not diyested by the attempted cancellation of that deed 66o Mortgages and Deeds oe Trust. and the pretended conveyance to E. T. Southey v. Mclntire, 7 App. D. C. 447; 24 W. L. R. 57. A sale under a deed of trust will not be set as-ide for inadequacy of price unless such inadequacy is so great as to shock the conscience or furnish ground for believing that there was fraud or gross neglect of duty in making sale. Hunt v. Whitehead, 19 App. D. C. 116; 30 W. L,. R. 223 ; Hifc V. Jenks, 16 App. D. C. 530 ; 28 W. L. R. 630 ; Insurance Co. V. Barker, 17 App. D. C. 205; 28 W. L. R. 799. A sale under a deed of trust, against which an injunction has been re- fused, will not be set aside because at the time of sale an appeal was pending from the decree refusing the injunction. Hitz v. Jenks, 16 App. D. C. 530; 28 W. L. R. 630. The requirement in terms of sale that the purchase-money should be paid in cash held not so unreasonable as to require that sale be vacated. lb. A sale under a deed of trust by the trustee named therein, who is also receiver, after a decree holding the deed of trust valid and continu- ing the receivership until a sale thereunder should be made, is neither void nor voidable. Ih. A sale under a deed of trust securing a debt due a mutual insurance company will not be set aside because of feelings of hostility on the part of the managers and officers of the company towards the mortgagor, where their action in ordering the sale was in the line of their plain duty and there was no neglect or misconduct on the part of the trustees. Mut. Fire Ins. Co. v. Barker,' 11 App. D. C. 205; 28 W. L. R. 799. A sale under a deed of trust of a lot 25 feet wide, occupied by two frame houses, will not be set aside because it was sold as a whole without being first offered in parcels, where it had not been subdivided by the owner, was conveyed as a whole, and no suggestion or demand for such subdivision was made by the owner or his attorney who attended the sale. Ih. The fact that such sale was made in Christmas week, the day being neither Sunday nor a holiday, and that the day was raw and cold, will not justify setting it aside. lb. Lack of general interest in a sale is one of the risks the mortgagor must be presumed to take into consideration when he executes the mort- gage. Ih. The mortgagor must suffer the consequences of failure of bidders at a sale induced by his announcement that the property was in litigation, especially where the trustees do all in their power to counteract the ef- fect of the announcement. Ih. A sale upon the first and only bid offered will not invalidate a sale on the ground of failure of bidders where the sale in all other respects was fair and regular, and the price not grossly inadequate. lb. A sale under a deed of trust will not be set aside because the notice of sale was not signed by the trustees themselves, .but by some one for them and notices of postponement attached to the original notice contained the name of the auctioneer only. Crutchfield v. Hewett, 2 App. D. C. 373; 22 W. L. R. 127. A sale under a deed of trust, which provided for publication of notice Mortgages and DubIds of Trust. 66i in "some newspapers", will not, seventeen years thereafter, be set aside because notice was published in but one paper. lb. As to right of party to object to a sale, on the ground of inadequacy of price; after a delay of ten years. See Wheeler v. McBlair, 5 App. D. C. 375 ; 23 W. L. R. 153. A judicial sale on foreclosure of a deed of trust securing bonds of a corporation will not be set aside on allegations of belief, in an unverified petition by a dissatisfied bondholder, that an agreement existed between the purchaser and other bondholders that the purchase should inure to their joint benefit, and that the sale was made for a totally inadequate price, supported only by affidavits, filed a year before in another proceed- ing. Parsons v. Little, 28 App. D. C. 318 ; 35 W. L. R. 46. A judicial sale by trustees under a deed of trust will not be set aside because the decree changed the time for advertising from that provided by the deed, where the decree was passed on the application of the grantor in the deed and the trustee and there was no objection until after the sale had been confirmed. Ih. A sale under a deed of trust will not be set aside because only two persons bid thereat, or because the weather at the time was excessively cold, where it is not shown that bidders were prevented from attending; or because the sale was made in Christmas week. Anderson v. White, 2 App. D. C. 408 ; 22 W. L. R. 159. That a trustee making sale thereafter denounces the bid of a default- ing purchaser as a trick and asks the representative of the debtor if the ' latter was the cause of it, is not such misconduct as to avoid a re-sale; and the fact that the trustee communicated to a person with whom the debtor was negotiating a loan to pay the trust indebtedness, that there were a number of mechanics' liens against the property, is not such mis- conduct, lb. A court of equity will more readily interfere to prevent a sale under a deed of trust than to set it aside. lb. A sale under a deed of trust will not be set aside because of the hard- ship of the condition of the grantor, hard times, scarcity of money, un- propitious time of year for selling, or the fact that the property would probably sell for much more at a later period, where no violation of duty by the trustees is shown. lb. Where property worth $35,000 is sold for $20,100 there is no such in- adequacy of price as to shock the conscience or raise a suspicion of un- fairness, lb. The fact that the auctioneer at a sale stated the value of an improve- ment to be much less than it actually was is not ground for setting aside the sale where it does not appear that the mistake was not an honest one. lb. Inadequacy of price at a sale by trustees is not of itself sufficient ground for avoiding the sale, unless such inadequacy be so gross as to suggest fraud. Starkweather v. Jenner^ 27 App. D. C. 348; 34 W. L. R. 350. Surprise and inadequacy of price as ground for setting aside a sale made in a foreclosure proceeding. Hunt v. Whitehead, 19 App. D. C. 116; 30 W. L. R. 223. 66^ MoRTdAtiES AND DEijbs OF YruSt*. The effect of a decree vacating a trustees' sale under a deed of trust is to restore the parties interested to the position occupied by them before the sale. Taylor v. Girard Life Ins. Co., 1 App. D. C. 309; 21 W. L. R. 632. Postponement of sale under deed of trust is discretionary with the trus- tees, and all that is required is that notice of the postponement be given. Crutch-Held v. Hewett, 3 App. D. C. 373 ; 33 W. L. R. 127. The presence of one of two trustees at a sale under a deed of trust is sufficient. Ih. As to length of time required for advertisement of notice of postpone- ment of sale. See lb. The mortgagee in a mortgage with power of sale cannot purchase at his own sale. Whitaker v. Middle States Co., 7 App. D. C. 303; 33 W. L. R. 797. As to validity of sale of syndicate property to members of syndicate. See Starkweather v. Jemier, 37 App. D. C. 348; 34 W. L. R. 350. As to right of purchasers at deed of trust sale to maintain the special possessory action provided by § 684, R. S. D. C. See Loring v. Bartlett, 4 App. D. C. 1; 33 W. L. R. 398; Eastern Trust &c. Co. v. Willis, 6 App. D. C. 375 ; 33 W. L. R. 417 ; reversed in 169 U. S. 295. As to hearing of exceptions to confirmation of sale in foreclosure pro- ceedings. See Hunt v. Whitehead, 19 App. D. C. 116; 30 W. L. R. 233. The delay by the obligee in a bond. secured by deed of trust, for nine- teen years and five months, to enforce the deed of trust, affords no ground for the application of the doctrine of laches, especially where the bond itself has been reduced to judgment in the meantime. Sis v. Boarma/n, 11 App. D. C. 116; 35 W. L. R. 431. As to delay fatal to suit to annul a foreclosure on the ground of fraud. See Mdntire v. Pryor, 173 U. S. 38; 37 W. L. R. 573. As to laches precluding the maintenance of a bill to set aside a sale made under a deed of trust. See Quirk v. Liehert, 13 App. D. C. 394 ; 36 W. L. R. 258; Starkweather v. Jenner, 27 App. D. C. 348; 34 W. L. R. 350. As to enjoining sale under deed of trust. See Mercantile Trust Co. v. Hensey, 31 App. D. C. 38 ; 31 W. L. R. 96. As to distribution of proceeds of sale under deed of trust where prop- erty covered by several deeds of trust in whole or in part. See Wood V. Grayson, 23 App. D. C. 433; 31 W. L. R. 663. XIV. Married Women. Under § 1154 of Code a deed of trust by a married woman of her separate property, executed by her jointly with her husband, to secure an indebtedness of the husband, is valid and enforceable. Darnielle v. Tuck, 33 W. L. R. 831. Whenever husband and wife mortgage the estate of the wife for the benefit of the husband, the wife or her heirs will be entitled, on the death of the husband, to have her estate exonerated out of the real and personal estate of the husband, her estate being considered only as a surety for the debt. Shea V. McMahon, 16 App. D. C. 65 ; 38 W. L. R. 303. Mortgages and Deeds op Trust. 663 XV. Generally. A chattel deed of trust to secure rent stipulated for in a lease will not operate to secure rents accruing after the expiration of the lease, even though the parties and their privies by their acts and conduct ac- quiesced in or confirmed the assumption that the trust was a continuing security. H'Ame v. Riggs,- 12 App. D. C. 355. In such case the cessation of the lien of the trust was not affected by the fact that the trust contained a covenant to keep the property insured for the lessor's benefit, which covenant was kept by the lessee after the expiration of the lease, nor was it affected by the failure to release the trust after payment of a contemporaneous loan thereby secured. Ih. A written agreemen by a tenant that certain chattels which were em- braced in a deed of trust might be sold to satisfy certain arrearage of rent to which the deed did not extend, held to create an equitable lien on such chattels in favor of the landlord, which though unrecorded took precedence over the claims of judgment creditors whose debts existed at the time of such written agreement and who had notice thereof before obtaining judgment; but such lien was not entitled to priority as to so much of such judgments as embraced credits given by them after the making of the agreement and before they had notice thereof. Ih. A court of equity will not invalidate a deed of trust without an offer by the debtor to reimburse the money secured. Sullivan v. Bailey, 21 App. D. C. 100 ; 31 W. L. R. 111. Where a deed of trust securing a loan mistakenly describes the property conveyed thereby as fronting 34 feet on a certain street when in fact it fronted thereon 42 feet and some inches, the parties being mutually mis- taken as to the matter and the intent being to include the entire premises, the misdescription may be corrected in equity, and the lien of the deed of trust decreed to extend to the entire premises. Manogue v. Bryant, 15 App. D. C. 245; 27 W. L. R. 478. A mortgage debt that had been assumed by decedent on purchase of property is payable out of the proceeds of the mortgage property and not out of the personal estate of decedent. In re Estate of Harris, 33 W. L. R. 290. A deed of trust of real estate executed by an infant is voidable, and may be disaffirmed by him within a reasonable time after attaining his ma- jority. McGreal v. Taylor, 167 U. S. 688; 35 W. L. R. 558; S. C, 1 App. D. C. 359; 21 W. L. R. 755. A deed of trust executed by husband and wife of an estate vested in them as tenants by the entireties reciting that it was in trust to secure a debt due by the husband, reserving to the husband, his heirs and as- signs, the use and occupation of the property and the right to receive the rents and profits until default made, and providing for release or convey- ance to the husband, his heirs and assigns, or in case of sale upon default the surplus proceeds should be paid to him, his heirs or assigns, held not to show an intention to make a separate and independent settlement on the husband of the equity of redemption of the estate mortgaged, to the exclusion of all right of the wife therein. Loughran v. Lemmon, 19 App. D. C. 141 ; 30 W. L. R. 25. A sworn allegation in a bill to set aside a deed of trust sale, that the 664 Mortgages and Dseds of Trust'. deed of trust was not executed by the person it purports to have been executed by, will not shift upon defendants the burden of proving its due execution. CrutcMeld v. Hewitt, 2 App. D. C. 373 ; 22 W. L. R. 127. If an undue advantage has been taken by a mortgagee of the ignorance and necessities of his mortgagor, equity will grant relief. Lyon v. Smith, 2 App. D. C. 37; 22 W. L. R. 131. The terms and conditions of a trust deed intended to serve merely the purposes of a mortgage, are within the control of a court of equity. Woarms v. Hammond, 5 App. D. C. 338; 23 W. L. R. 131. A covenant in a deed of trust, given by a borrowing member of a build- ing association to secure a loan, to "keep and perform all promises and engagements made and entered into with said association according to the true intent and meaning of its by-laws and articles of association" cannot be interpreted as changing the obvious intent and purpose of the deed of trust. Building Assn. v. Olmstead, 16 App. D. C. 387; 28 W. L. R. 409. Where the maker of a note agrees' that on default in payment at ma- turity thereof he will give a deed of trust on all his real estate to secure payment, the payee, upon such default, is entitled to an equitable lien upon such real estate ; and equity will supply a trustee to enforce the lien and fix the terms of sale of the property. Woarms v. Hammond, 5 App. D. C. 338; 23 W. L. R. 131. A bill to enforce such agreement is not demurrable because it calls for discovery by defendant of all his real estate when the land records are open to complainant, or because it alleges that defendant neglected instead of refused to execute the deed of trust. lb. On a petition by the holder of one of two notes secured by mortgage for leave to participate in the proceeds of sale under a decree in a fore- closure suit brought by the holder of the other note, the bar of limitations is not that applicable to the case of an action on the note, but that which applies to the remedy for the enforcement of an equitable right under the mortgage; and the same period that would bar an ejectment is required. Cropky V. Byster, 9 App. D. C. 372 ; 24 W. L. R. 829. As to who entitled to rents and profits of real property pending actual possession by the trustee under a deed of trust. See Eastern Trust & Banking Co. v. American Ice Co., 14 App. D. C. 304; 27 W. L. R. 182. As to laches precluding a mortgagee from availing himself of a con- tract to purchase made with the mortgagor whereby the purchaser as- sumes the payment of the mortgage. Willard v. Wood, 164 U. S. 502. As to admissibility in evidence of deed of trust in action of ejectment brought by the purchaser at a sale thereunder. See Crandall v. Lynch, 20 App. D. C. 73; 30 W. L. R. 326. As to creation of easement. See Wood v. Grayson, 22 App. D. C. 432; 31 W. L. R. 663. As to appointment of receiver pending foreclosure suit. See Eastern Trust &■ Banking Co. v. American Ice Co., 14 App. D. C. 304; 27 W. L. R. 182. Trustee under deed of trust as purchaser of the note secured therby. Brewer v. Slater, 18 App. D. C. 48; 39 W. L. R. 259. See Subrogation. MuLTiifARiotJSNfiSs — Municipal Corporations. 665 MULTIFARIOUSNESS. A bill in equity is multifarious and demurrable which sets up several matters of different natures against several defendants. McCartney v. Fletcher, 10 App. D. C. 572 ; 35 W. L. R. 311. See Equity; Pleading and Practice. MULTIPLICITY OF SUITS. See Equity. MUNICIPAL CORPORATIONS. I. Powers Generatly. II. Streets and Sidewalks. III. Sewers. IV. Public Vehicles and Railroads. V. Nuisances ; their Maintenance and Prevention. VI. Notice to. VII. Officers and Agents. VIII. Public Records and Documents. IX. In General. I. Powers Generally. As governmental agencies municipal corporations take no more from grants of police power than is expressly stated in the words ,of the grant. Taylor v. Dis. of Col, 24 App. D. C. 392 ; 33 W. L. R. 67. A municipal corporation possesses only such powers as are granted in express words or necessarily implied in or incident to such powers, and such as are essential to the declared objects and purposes of the corpora- tion. Any doubt as to the existence of power is resolved against the corporation. Kerr v. Ross, 5 App. D. C. 241 ; Daly v. Macfarland, 28 App. D. C. 552; 35 W. L. R. 81. A municipal regulation looking to the public interest and safety will be upheld by the courts unless it is plain that it has no real or sub- stantial relation to those objects or is a palpable invasion of rights se- cured by the fundamental law. Macfarland v. W. A. &■ Mt. V. Ry. Co., 18 App. D. C. 456 ; 29 W. L. R. 547. Where an act is an offense both against the State and a municipal gov- ernment the latter may be constitutionally authorized to punish it. Bowles V. Dis. of Col, 22 App. D. C. 321 ; 31 W. L. R. 539. II. Streets and Sidewalks. The sidewalks of the city of Washington, while the property of the United States, are wholly subject to the municipal authorities of the District of Columbia. Dotey v. Dis. of Col, 25 App. D. C. 232; 33 W. L. R. 293. The powers of municipal governments in relation to the laying out, opening and improving of streets are only such as are expressly con- ferred or which ma.y be fairly and reasonably implied from powers ex- pressly granted. Walter v. Macfarland, 27 App. D. C. 182; 34 W. L. R. 238. The right in and control over all the streets and sewers of the city are held by the municipal government for public use and to no other use or purpose can they be appropriated without express legislative sanc- tion; nor has the municipal government the power to restrict the use of Municipal CoupoRa'tIonS. them in such manner as to impair the right of full enjoyment thereof by the pubhc except by express legislative authority. District of Columbia v. Cropley, 33 App. D. C. 333; 33 W. L. R. Sit. A municipality may be liable in the first instance for a defect in its streets or highways caused by the negligence of a street railway cor- poration occupying an undue and unnecessary portion of the way. Dis. of Col. V. Sullivan, 11 App. D. C. 533; 36 W. L. R. 355. A municipal corporation is liable for personal injuries caused by defects in a lawful obstruction in a street caused by want of proper supervision. Dis. of Col. V. Duryee, 29 App. D. C. 337; 35 W? L. R. 354. Where a horse of ordinary gentleness and tractability becomes fright- ened at an object naturally calculated to frighten horses, such as a steam roller, which the municipal authorities have negligently placed, or per- mitted to be placed and allowed to remain for an unreasonable time in street or. highway of the city, and injury results, without contributory negligence, the municipality will, as a general rule, be liable for such injury. Dis. of Col. v. Moulton, 15 App. D. C. 363; 37 W. L. R. 753; re- versed in 183 U. S. 576. The liability of a municipality for damages occasioned by an obstruc- tion in a street extends to objects on the margin of the street or highway and within *ts limits, although such object may not be within the traveled way of such street, and the horse or vehicle may not come in actual con- tact with the object of fright. lb. A municipal corporation is legally responsible for injuries sustained by one who, while exercising ordinary care, slips upon a bed of ice, whether smooth or corrugated, covering part of a sidewalk, which was not the result of frost or the casual freezing of rain or melted snow, but of a flow of water from abutting premises that in freezing weather regularly produced the same to an extent that rendered it a dangerous obstruction to travel, provided these conditions had existed for such a length of time that the municipal authorities would necessarily have dis- covered them by the exercise of reasonable care. Dis. of Col. v. Praser, 21 App. D. C. 154; 31 W. L. R. 83. While the construction of sewers is in progress persons using the streets must take notice thereof and exercise ordinary powers of observa- tion, and not recklessly or unnecessarily incur risk; and where the nature of the work and the implements employed obviously require care on the part of persons using the streets, special care and caution may reasonably be insisted upon to avoid accident; and if a party recklessly incurs risk or danger and suffers thereby, he can have no remedy against the munici- pality. Dis. of Col. V. Ashton, 14 App. D. C. 571; 27 W. L. R. 399. It is the duty of the municipal authorities to see that a water plug does not become a dangerous obstruction to those having occasion to use the sidewalk. Dotey v. Dis. of Col, 25 App. D. C. 232 ; 33 W. L. R. 393. As to liability for personal injuries caused by pedestrian slipping on iron plate covering a sewer trap located in sidewalk. See Scoit v. Dis. of Col, 37 App, D. C. 413 ; 34 W. L. R. 420. Whether a market has been established by municipal ordinance, or has been permitted to continue by tacit acquiescence on the part of the mu- nicipality, the duty in either case is upon the municipality to see that Municipal Corporations. 667 the sidewalks are in reasonably safe condition for pedestrians to pass thereon. O'Dwyer v. Northern Market Co., 24 App. D. C. 81; 33 W. L. R. 438. As to liability of municipality for personal injuries occasioned by slip- ping on vegetable matter on sidewalk used by a market company with the acquiescence of the municipal authorities. See Ih. As to duty in respect of safety of streets and sidewalks. See Dis. of Col V. Boswell, 6 App. D. C. 403 ; 33 W. L. R. 433. The District of Columbia has the right to cut down and remove shade trees growing in the streets when to do so may be regarded by its of- ficers as expedient or necessary; but in so doing must take such precau- tions as will prevent unnecessary unreasonable danger to persons using the streets for the purposes for which they are intended. Ward v. Dis. of Col, 24 App. D. C. 524 ; 33 W. L. R. 71. The District of Columbia, as a municipal corporation, has the right to use the streets of this city for the purpose of constructing sewers under the beds thereof ; and the corporation or its agents and contractors may employ the most approved and best adapted means and appliances for the execution of the work. Dis. of Col v. Ashton, 14 App. D. C. 571 ; 37 W. L. R. 399. Negligent use of street by, in construction of sewer. Dis. of Col v. Whipps, 17 App. D. C. 415 ; 29 W. L. R. 58. Where a gas-light company requests and receives a license to dig in the streets, there is an implied promise on its part to do the work with such care and caution as reasonably to prevent danger to the public in the ordinary use of the streets, and protect the municipality from lia- bility. Wash. Gas. Light Co. v. Poore, 3 App. D. C. 127 ; 32 W. L. R. 249. The duty of a municipality to specially illuminate and guard the place where on object is in the public street depends upon whether such object is an unlawful obstruction. Wolff v. Dis. of Col, 196 U. S. 152. As to right of municipality, under contract for paving street, to repair same on refusal of contractor so to do, and reimburse itself out of fund retained from contract price. See Macfarland v. Barber Co., 29 App. D. C. 506; 35 W. L. R. 414. in. Sewers. It is the duty of a municipality to inspect its sewers from time to time to discover obstructions therein and if it neglects that duty it has no right to require that notice of an obstruction be given it through some other source. Dis. of Col v. Gray, 6 App. D. C. 314 ; 33 W. L. R. 340. The acts of Congress of Mar. 2, 1881, and Apr. 1, 1883, did not au- thorize the Commmissioners of the District of Columbia to divest the municipal government of its rightful authority and control over an es- tablished sewer, or to restrict such right of control to the extent of deny- ing to the municipal government the right of enlarging the capacity of such sewer or others leading thereto, to meet the requirements of the city, and from time to time to repair and, if necessary, make such changes in location and discharge of such sewers as circumstances might require. Dis. of Col V. Cropley, 33 App. D. C. 232 ; 33 W. L. R. 97. The duties of the municipal authorities, in adopting a genaral plan of 668 Municipal Corporations. drainage, and determining when and where sewers shall be built, of what size and at what level, are of a quasi-iadidal nature, involving the exer- cise of deliberate judgment and large discretion, and depending upon considerations affecting the public health and general convenience; and they can not be held liable for the change or diversion of drainage to a more suitable point of discharge. lb. The municipal authorities are charged with the duty of keeping sewer traps or catch basins located in sidewalks in good repair and safe against accident, to which end frequent and careful inspection should be made. Dis. of Col. V. Payne, 13 App. D. C. 500 ; 27 W. L. R. 24. IV. Public Vehicles and Railroads. No duty was imposed upon the municipality of the District of Columbia by the provision of the act of Congress incorporating the Georgetown and Tenallytown Railroad Company, providing that the construction of said road should be subject to the supervision and approval of the Commis- sioners of the District; and the Commissioners, in the discharge of that duty, acted not as the official representatives or agents of the municipality, but as the chosen agents or representatives of Congress. Smith v. Dis. of Col, 25 App. D, C. 370; 33 W. L. R. 418. In an action for injuries to a passenger on a street railway, causing his death, it was sought to hold the District liable on the ground that it was its duty, through its Commissioners, under the act of Congress incor- porating the railway company, to regulate the manner of the construc- tion and maintenance of the tracks of said railway and the selection and operation of the cars used thereon, and that it had failed in the perform- ance of that duty. Held, that no such duty was imposed upon the mu- nicipality, and the trial court properly directed a verdict in its favor. lb. As to regulation of cab stands in the public streets. See Dis. of Col. v. Hazel, 16 App. D. C. 283; 28 W. L. R. 372. V. Nuisances; their Maintenance and Prevention. A municipality, even in the 'course of its performance of its govern- mental functions, is not entitled to perpetrate a nuisance. Roth v. Dis. of Col, 16 Apps. D. C. 323 ; Palmer v. Dis. of Col., 26 App. D. C. 31. The mere maintenance or location of an ambulance stable, as part of the police department may not of itself be held to be a nuisance, since it is a necessary and proper appliance of governmental authority; but maintenance in a negligent, improper and unlawful manner constitutes a nuisance for which the municipality is liable. Roth v. Dis. of Col, 16 App. D. C. 323; 28 W. L. R. 432. A municipality owning property stands in no different position from a natural person in respect of the duty not to permit it to become a nuisance; and its liability for a nuisance committed or permitted by it upon such property is not in any way dependent upon the amount of gam derived by it from the existence of the nuisance. lb. The occupation by the owner of an apartment house of a parking space adjacent to his building under a permit from the municipal authorities to enclose the same according to a general parking system, will not consti- tute a nuisance so as to render the municipality, without actual or con- Municipal Corporations. 669 structive notice of a defect* in the enclosing fence, liable to damages for injuries caused by such defect. Domer v. Dis. of Col, 21 App. D. C. 284; 31 W. L. R. 243. As to liability for injury resulting from lumber piled in the streets and constituting a nuisance which the municipality had power to prevent or remove. See Smith v. Davis, 22 App. D. C. 298 ; 31 W. L. R. 472. As to power of municipality to prevent nuisance resulting from pos- session of carcass of animal. See Mann v. Dis. of Col., 22 App. D. C. 139; 31 W. L. R. 424. VI. Notice to. Publicity following accidents caused by a lawful obstruction in a street held to charge the municipality with notice of its dangerous condition. Dis. of Col. V. Duryee, 29 App. D. C. 327; 35 W. L. R. 254. Constructive notice, when sufficiently shown, is as effectual to charge municipal authorities with liability as actual notice. Domer v. Dis. of Col, 21 App. D. C. 284 ; 31 W. L. R. 243. To charge a municipality with constructive notice of the dangerous condition of a sidewalk, it must appear that the dangerous condition could have been discovered by an inspection of the sidewalk made with ordinary care or that it had been in existence so long that it ought to have been discoverd by inspection. Dis. of Col v. Boswell, 6 App. D. C 402; 23 W. L. R. 423. As to charging with constructive notice of defective sewer-trap lid in sidewalk. See Bissell v. Dis. of Col, 28 App. D. C. 88 ; 34 W. L. R. 544. As to imputation of notice of dangerous condition of street. See Domer v. Dis. of Col, 21 App. D. C. 284 ; 31 W. L. R. 343. VII. Officers and Agents. The power of officers and agents to make contracts is to be strictly con- strued, and where directions are given in respect thereto, they must be followed. Market Co. v. Dis. of Col, 6 App. D. C. 34; 23 W. L. R. 213. It is only where there is a plain and obvious neglect of duty on the part of municipal agents that the municipality will be held liable for neg- ligence. Smith V. Dis. of Col, 25 App. D. C. 370 ; 33 W. L. R. 418. A municipality is not liable for, nor can its rights be impaired by an error of judgment on the part of its agents. Dis. of Col v. Metropolitan R. R. Co., 8 App. D. C. 323 ; 24 W. L. R. 566. The official action of municipal officers in taking charge of the estate of a decedent to await claim by its lawful owner, is not a tortious inter- meddling with the estate; but if they convert it to the use of the muni- cipality they become liable in tort to the person entitled; and their act binds the municipality. Tucker v. Nebeker, 2 App. D. C. 326 ; 23 W. L. R. 143. The maintenance of a fire department is in the nature of a general public duty, as contradistinguished from those duties purely municipal and local; and employes thereof are not mere agents or servants of the municipality, but rather ■ officers charged with a public service, and the maxim respondeat superior is not applicable. Brown v. Dis. of Col, 35 W. L. R. 162. The fact that a watchman, employed by private persons at their own 670 Municipal Corporations. expense to guard their property at night, is, to enable him to perform his duties in that regard and for that purpose alone, commissioned as a private on the police force, but without compensation from the District, will not of itself defeat his right to recover for injuries sustained by him by stepping into a hole in the sidewalk negligently permitted to exist after notice thereof to the municipal authorities. Klopfer v. Dis. of Col., 25 App. D. C. 41; 33 W. L. R. 153. An electric railway company, without having applied for or obtained permission from the District Commissioners, installed an electrical switch and appliances at the intersectio'n of certain streets in this District. The Commissioners ordered the removal of such construction, and the com- pany filed suit in equity to enjoin the execution of the order and ob- tained a temporary restraining order. A motion to dissolve such restrain- ing order was overruled and the same continued pendente lite. On appeal, held, upon a review of the pleadings, that it did not appear plainly that the Commissioners had exceeded their powers, or abused the dis- cretion vested in them, or acted oppressively in directing the removal of such construction; and the order of the court below was improper. Mac- farland v. W., A. & Mt. V. Ry. Co., 18 App. D. C. 456; 29 W. L. R. 547. As to right of taxpayer to invoke interposition of court of equity to prevent wrongful acts of municipal officers. See Dozsming v. Ross, 1 App. D. C. 251 ; 21 W. L. R. 683. As to right of a municipal officer to maintain an action against a gas company for negligence resulting in his injury while in the performance of his duties as such officer. See Gas Light Co. v. Bckloff, 4 App. D. C. 174; 22 W. L. R. 656. As to mandamus to compel assessor of District to issue tax certificate withheld because of failure of applicant to furnish a war revenue stamp therefor. See Hufty 7'. Trimble, 14 App. D. C. 414; 27 W. L. R. 203. VIII. Public Records and Documents. In an action against a municipal corporation plaintiff has a right to inspect any record or document in the custody of the officers or agents of such corporation, containing matter pertinent and material to the action ; and if such inspection is refused may obtain a rule compelling it. Dis. of Col. V. Bakersmiih, 18 App. D. C. 574; 39 W. L. R. 751. IX. In General. As to status of the District of Columbia. See Hufty v. Trimble, 14 App. D. C. 414 ; 27 W. L. R. 203. The municipality of the District of Columbia is not liable for failure to perform a general governmental duty. Brown v. Dis. of Col., 35 W. L. R. 162. In general, equity is without jurisdiction to restrain, review or set aside irregular or illegal proceedings of a municipal corporation. Dewey Hotel Co. V. U. S. Elcc. L. Co., 17 App. D. C. 356 ; 39 W. L. R. 71. As to subjecting money due contractor by municipality to equitable gar- nishment by creditor or contractor. See Columbia Brick Co. v. Dis. of Co., 1 App. D. C. 351 ; 21 W. L. R. 739. S?e also CoMMISSIOfTIjRS op THg DlSTMCT OF Coi,UMBJA J DISTRICT OF Municipal Oedinanci;s — Musical Compositions. 671 Columbia; Negligence; Municipal Ordinances; Police Regulations; Streets and Sidewalks; Etc. MUNICIPAL ORDINANCES. In enacting a municipal ordinance for the District, Congress may pro- vide that the ordinance shall be the act of the municipal corporation, which shall enforce it and be liable for its consequences. Dempsey v. Dist. of Col., 1 App. D. C. 63; 31 W. L. R. 389. The ordinance of Nov. 20, 1862, penalizing unlawful occupation of any open space, street, etc., by any private person is null and void so far as it appHes to streets and avenues improved. in whole or in part by the United States, Congress having fully legislated on the subject by act of June 12, 1858. Dis. of Col. v. Libbey, 9 App. D. C. 321 ; 24 W. L. R. 726. Section 4 of the ordinance of the Legislative Assembly of Aug. 23, 1871, for the regulation of the use of the streets by vehicles, was repealed by the regulation prescribed by the Commissioners under authority of the act of Congress of Jan. 36, 1887, and joint resolution of Feb. 36, 1893. Callan v. Dis. of Col, 16 App. D. C. 371 ; 28 W. L. R. 375. Section 3 of the regulations promulgated by the Commissioners under the authority of the act of Congress of Jan. 26, 1887, requiring a license for the storage of gasoline is not void because of an unauthorized dele- gation of power conferred upon the Commissioners in that it provides that an application for a license shall be referred to the inspector of buildings and chief engineer of the Fire Department who shall examine the building described in the application, and transmit the said application, with their recommendation in the case in writing thereon, to the assessor, who shall, if said officials so recommend, issue the license unless otherwise ordered by the Commissioners. Dis. of Col. -v. Weston, 23 App. D. C. 363 ; 32 W. L. R. 284. As to validity of regulation adopted by Commissioners of District of Columbia relative to vessels in which milk may be served and inspection thereof. See Thompson v. Dis. of Col., 31 App. D. C. 395; 31 W. L. R. 305. As to right to trial by jury of defendant in prosecution under. See Bowles V. Dis. of Col, 22 App. D. C. 321 ; 31 W. L. R. 539. As to nature of penalty imposed for violation of. See Bowles v. Dis. of Col, 33 App. D. C. 321 ; 31 W. L. R. 539. As to validity of acts requiring dealers in second-hand articles to ob- tain license. See Lasley v. Dis. of Col, 14 App. D. C. 407 ; 37 W. L. R. 334. As to authority of Commissioners of the District to make and enforce a regulation relative to the storage of gasoline. See Dis. of Col. v. Weston, 33 App. D. C. 363 ; 33 W. L. R. 384. As to validity of regulation requiring inspector of plumbing to give bond. See Dis. of Col. v. Ball, 22 App, D. C. 543 ; 31 W. L. R. 726. See Building Regulations; Plumbing Regulations; Police Regula- tions. MURDER. See Homicide. MUSICAL COMPOSITIONS. See Copyright, 672 MutiIvATEd Documents — Negligence. MUTILATED DOCUMENTS. As to admissibility in evidence. See Waring v. United States fidelity &c. Co., 34 App. D. C. 119; 32 W. L. R. 394. MUTUAL ACCOUNTS. Where a mutual account exists between parties and a payment is made on account, leaving a balance due, the running of the statute of limitations as against such balance is not affected by the subsequent entry by the creditor of new and independent items to his own side of the account. Ross V. Pickling, 11 App. D. C. 442; 25 W. L. R. 806. MUTUAL INSURANCE COMPANIES. See Corporations; Insur- ance. MUTUAL WILLS. See Wills. NAMES. As to exclusive right to use. See Original La Tosca Club v. La Tosca Club, 23 App. D. C. 96 ; 32 W. L. R. 83. When injunction will lie to restrain use of trade name. See lb. NATURALIZATION. As to enforcement of duty of clerk of court to receive from party his declaration of intention to become naturalized. See Opisso v. Young, 31 W. L. R. 276. As to right to naturalization of native of Philippine Islands. See lb. NAVIGABLE WATERS. An injunction to restrain the Secretary of War from enforcing an order requiring a bridge company to alter a bridge constituting an obstruction to navigation, denied. Monongahela Bridge Co. v. Taft, 34 W. L. R. 278. NAVY. See Army and Navy. NEGLIGENCE. I. Use of Streets and Sidewalks. II. Obstructions in and Unsafe Condition of Streets and Sidewalks. III. Conduct and Operation of Railroads. IV. Of Passengers and Others in Respect of Railroads. V. Buildings and Grounds. VI. Unsafe Appliances. VII. Animals, Depredations by. VIII. Master and Servant. IX. Fellow Servants X. Assumption of Risk. XI. Children. XII. Contributory Negligence in General. XIII. Proximate Cause. XIV. Concurrent and Joint Negligence. XV. Actions, Right to and Where Maintainable. XVI. Recovery. XVII. Pleading. XVIII. Evidence. XIX. Presumptions. XX. Burden of Proof. XXI. Province of Court and Jury. XXII. In General. Negligence. 673 I. Use of Streets and Sidewalks. The municipal corporation of the District is liable for injuries to per- sons arising from negligence of its agents and officers in constructing and maintaining in safe condition, for the use of the public, the streets, avenues, alleys, public roads, bridges, and all public sidewalks of the city of Washington and of the District of Columbia. Dis. of Col. v. Sullivan, 11 App. D. C. 533; 36 W. L. R. 355. One crossing a street at a point other than the street crossing is charged with the duty of exercising reasonable care to avoid such lawful ob- structions as may be expected to be found at that point, "and his failure to do so constitutes negligence. Dis. of Col. v. Duryee, 29 App. D. C. 327; 35 W. L. R. 254. Ordinary care is presumed to have been used until the presumption is overcome by proof in defense. A traveler on a public street is not required to look ahead for obstructions or defects therein, but is entitled to assume its safe condition and is not bound to be on the lookout for special defects therein. Dis. of Col. v. Holier, 4 App. D. C. 405; 22 W. L. R. 761. A person knowing of the existence of a dangerous place in a sidewalk, that it has not been repaired, and that it has been rendered more danger- ous by being covered with snow, yet deliberately takes the risk of the sidewalk rather than walk through the deep snow on another street by which he could have reached his destination safely, and is injured, he is guilty of contributory negligence precluding recovery. Dis. of Col. v. Brewer, 7 App. D. C. 113 ; 23 W. L. R. 724. It is not contributory negligence per se to walk upon a sidewalk in which there are loose boards, and a party injured in so doing is not precluded from recovering by the fact that she knew there were such loose boards, but did not know their exact location; and the question of negligence is for the jury. Dis. of Col. v. Crumbaugh, 13 App. D. C. 553; 27 W. L. R. 73. One of a large crowd watching election returns who is injured by being struck by a street railway car while he was standing on the track or in dangerous proximity thereto, is guilty of negligence pre- cluding recovery, even though the company may also have been negli- gent. Wash. &f G. R. R. Co.' v. Wright, 7 App. D. C. 295 ; 23 W. L. R. 844. For one to attempt to cross a street in front of two cars coming from opposite directions, one of which was so near the line he was taking as that he barely evaded it, and the other, which he necessarily must have seen coming at a rapid rate of speed, was so near that ordinary prudence would have dictated to let it pass before attempting to cross, is guilty of gross negligence, defeating any right to recover for injury suffered; and it is immaterial that the car causing the injury was moving at an unlawful rate of speed. Hurdle v. Washington & G. R. R. Co., 8 App. D. C. 120; 24 W. L. R. 132. For an injury to a person who, while in the exercise of reasonable care, is struck by a passing car while walking on a sidewalk on a public road negligently constructed in such close proximity to the track of an electric 674 Negligence. railway that cars project over and upon the sidewalk to a distance of one to two feet at the point where the accident occurred, the District of Co- lumbia is primarily liable. Dis. of Col. v. Sullivan, 11 App. D. C. 533; 26 W. L. R. 355. The principal of look and listen, of general application in cases of steam railroad crossings, cannot be applied in its strict sense to the crossings of a street railroad. Cap. Tract. Co. v. Lusby, 12 App. D. C. 295; 26 W. L. R. 163. That a party had knowledge of the existence of a hole in the sidewalk caused by an uncovered water box at the foot of the steps leading into her residence will not of itself be sufficient to impute to her contributory negligence, as matter of law, in attempting to pass over it; but the ques- tion of whether or not she was negligent in so doing is for the jury. Mosheuvel v. Dis. of Col., 191 U. S. 247 ; 31 W. L. R. 790. As to use of sidewalks. See Hoives v. Dis. of Col., 2 App. D. C. 188; 22 W. L. R. 41. II. Obstructions in and Unsafe Condition of Streets and Sidewalks. Leaving a broken steam-roller on the street, close to the sidewalk, for two days, without any change in its appearance to enhance the danger of frightening animals, except by putting over it the usual cover to protect it from the weather, does not constitute negligence on the part of the municipality, for which it would be liable at the suit of one injured by reason of his horse becoming frightened thereat. Dis. of Col. v. Moulton, 182 U. S. 576, reversing 15 App. D. C. 363. Where an accident is occasioned by a horse driven by plaintiff becoming frightened at an object left standing in a public highway, all that is re- quired of the plaintiff in the sudden emergency is that he shall have acted as an ordinarily prudent man would have acted under like circumstances. Dis. of Col. V. Moulton, 13 App. D. C. 363 ; 27 W. L. R. 753. Where an accident was occasioned by a horse becoming frightened at a steam roller left standing in the street, the question whether the roller was allowed to remain in the street for an unreasonable time, and whether the allowing it so to remain was negligence on the part of the defendant, is for the jury. /&. The District of Columbia held not liable for injuries sustained by one in falling over a carriage block which is not an unlawful obstruction. Wolf V. Dis. of Col, 21 App. D. C. 464 ; 31 W. L. R. 257 ; affirmed in 196 U. S. 152. Where an independent contractor, in performing a contract with a municipal corporation, makes holes or excavations in the street, or places dbstructions therein, and by reason of his negligence a traveler is in- jured, the municipality may be made liable in the first instance, or jointly with the contractor. Koontz v. Dis. of Col, 24 App. D. C. 59; 32 W. L. R. 390. An owner of lumber, without lawful authority, but with the knowledge and consent of the District authorities, maintained piles of heavy timbers in a public street. A child, 9 years of age, while playing with other children, was severely injured by the fall of a pile of lumber. There was no evidence showing that she was instrumental in causing the lumber to Negligence. 675 fall, except the fact that she and her two playmates were seated on the adjoining pile. Held, that both the owner of the lumber, and the District authorities, were guilty of negligence, and incurred the risk of any mis- chief that might result therefrom; that the fact that the pile of timber did fall and inflict the injury complained of was proof to justify the inference that there was a probability of the occurrence of such accidents as did in fact occur; that this, the defendants must, as a consequence of their illegal acts, be held to have known to be possible, and therefore to be chargeable with the injury resulting therefrom. Smith v. Davis, 22 App. D. C. 298; 31 W. L. R. 473. Where one driving along a public street was injured by being thrown from the vehicle as the result of the horse becoming frightened by the falling of a telegraph pole, the fact that at the time the driver had been slightly paralyzed, so as to affect to some extent his left hand and arm, but not so he could not use them, the horse being a gentle one to whose use the driver was accustomed, held not to constitute negligence on the part of the plaintiff defeating right to recover. Dis. of Col. v. Boiling, i App. D. C. 397; 23 W. L. R. 753. A pedestrian was injured by coming into violent contact with an iron gate which swung open over the sidewalk. The evidence showed that an iron railing inclosing the parking space adjacent to the building had been constructed under a permit from the District authorities which re- quired that the gates should open inward, and they were in fact so con- structed, but that the gate in question had become out of repair so as to cause it to swing outward as well as inward; that it swung outward more frequently than otherwise, and that prior to the accident to plaintiff other persons had been more or less injured by running against the gate. Held, that the testimony was sufficient to be submitted to the jury to show that the District was chargeable with notice of the existence of the ob- struction, and therefore chargeable with negligence in failing to have it removed. Domer v. Dis. of Col., 31 App. D. C. 284 ; 31 W. L. R. 243. In an action for personal injuries sustained by falling through the opening of a sewer-trap, where all that appeared from the plaintiff's evi- dence was that while walking along a street he stepped on the edge of of the lid of one of these sewer-traps located in the tree space outside the paved portion of the sidewalk and the lid tipped and he went down into the opening a:nd was injured, and that on examining the place the next day he found that the lid was a thin sheet of iron fitting into a groove which was full of dirt and the lid itself was worn and rusty, held that the evidence was insufficient to show clearly either that the sewer-trap was defective or that if there was a defect it was one of which the municipal authorities were charged with constructive notice, and the direction of a verdict for defendant held proper. Bissell v. Dis. of Col., 38. App. D. C. 38 ; 34 W. L. R. 544. In an action to recover damages for an injury alleged to have been caused by a negligent defect or obstruction in a' public street, it appeared that the District authorities were engaged in laying a sewer in the street, and had opened trenches on each side of the street, leaving a drive- way in the centre of seven or eight feet, on each side of which were piles of earth removed from the trenches, in plain view of passers-by. While 676 Ndgligencb. plaintiff and her brother were driving past the improvement, the horse shied from some cause not stated, and the buggy was overturned by being run upon one of the piles of dirt, and the plaintiff was thrown out and injured. Held, that the evidence was not sufficient to be submitted to the jury and a verdict for defendant was properly directed. Swart v. Dis. of Col., 17 App. D. C. 407 ; 29 W. L. R. 138. Where a person while passing along a sidewalk in the center of which is located a catch basin is injured by being precipitated into the sewer by reason of the fact that one of the lugs holding the lids of such basin in position has become broken, and there is evidence tending to show that, from its condition after the accident, the break must have existed for some time, it is for the jury to determine whether the time elapsing since the break occurred is sufficient to charge the municipal authorities with notice of the defective condition of the lid and with negligence because of their failure to keep it in repair. Dis. of Col. v. Payne, 13 App. D. ,C. 500; 27 W. L. R. 24. In an action against the District of Columbia to recover damages for personal injuries caused by the fall of a wire cable used in the construc- tion of a sewer in the public street, where the evidence on behalf of plaintiff tended to show that the cable fell because of the lack of reason- ably safe guying or other support for the towers supporting said cable, it was held that the question of the defendant's negligence was properly submitted to the jury with a fair statement of the legal rights and duties of defendant in the exercise of the powers intrusted to it for improve- ment of streets. Dis. of Col. v. Whipps, 17 App. D. C. 415; 29 W. L. R. 58. A conductor employed by a street railway company, while standing on the running-board of the car collecting fares, was injured by coming in contact with a trestle erected by contractors with the District over a sewer excavation in the street. He had passed the place of the accident eight or nine times daily for several weeks, and was familiar with a notice posted by the superintendent at the car-sheds of the company directing conductors to remain on the platform of the car while passing the sewer excavation and also to warn passengers of the danger of putting arms or heads out of the windows of the car. Held, that he was not entitled to recover against the District. Dis. of Col. v. Ashton, 14 App. D. C. 571; 27 W. L. R. 399. Where, in an action against the District and a market company for per- sonal injuries occasioned by slipping on green vegetable matter on the sidewalk, it appeared that the market company, with the acquiescence of the municipal authorities, had for a long time previous to the accident, occupied the outer portion of the sidewalk adjacent to its market building; that the space left for the passage of pedestrians was, on every market day, literally covered with refuse vegetable matter, and that this condition had existed for a whole year. Held, the question of the liability of both defendants was for the jury, and a verdict in their favor was improperly directed. O'Dwyer v. Northern Market Co., 24 App. D. C. 81; 32 W. L. R. 438. When the evidence is conclusive that' the District had knowledge, through its police officers, of the long-continued unlawful occupation of NUGLIGENCE. 677 the side-walks by hucksters under leases from the market company, and that such officers had driven away hucksters who refused to pay the market company for the privilege, the jury should be instructed that the District had notice of such unlawful occupation, and as matter of law was guilty of negligence in not suppressing the nuisance, and therefore equally responsible with the market company; and it was not necessary for the plaintiff to show that the District had knowledge of the presence on the sidewalk of the particular piece of vegetable matter causing injury to the plaintiff. O'Dwyer v. Market Co., 36 W. L. R. 50. In an action for personal injuries sustained by reason of defects in sidewalk, held improper to direct the particular attention of the jury to the number and effect of neighboring lights as bearing on defendant's negligence. Dis. of Col. v. Dietrich, 33 App. D. C. 577; 32 W.-L. R. 360. Where the wire of a telephone company which has become broken during a storm is negligently allowed to remain for a period of four months suspended from a tree overhanging the street and constituting a danger- ous obstruction of the highway, both the telephone company and the District of Columbia^-the latter having both actual and constructive notice of the obstruction — are liable for an injury occasioned thereby. Dis. of Col. V. Dempsey, 13 App. D. C. 533 ; 27 W. L. R. 87. The liability of a telephone company and the District of Columbia for injuries occasioned by a wire constituting a dangerous obstruction of the highway is not affected by the fact that, a few minutes before the accident, a third party had fastened the wire thus left dangerously overhanging the street to an adjacent tree in such a way as to form a loop in which the plaintiff was caught and injured. lb. To entitle a plaintiff to recover for an injury caused by an alleged negli- gent defect in the street, it must be shown that such defect was the sole cause of the injury; and it is not enough that the supposed defect may have indirectly contributed to the accident. Where the injury fol- lows from a defect united with some distinct, efficient cause without which it would not have happened (unless such concurring cause be pure accident), the plaintiff can not recover. Swart v. Dis. of Col, 17 App. D. C. 407 ; 29 W. L. R. 138. As to negligence of municipality in respect of condition of sidewalk. See Scott V. Dis. of Col, 27 App. D. C. 413; 34 W. L. R. 430. As to liability of municipality for injuries occasioned by obstructions in streets. See Dis. of Col v. Moulton, 15 App. D. C. 363 ; 37 W. L. R. 753. Duty of municipality in removing trees growing in streets. Ward v. Dis. of Col, 34 App. D. C. 534; 33 W. L. R. 71. As to liability of municipality for personal injuries by reason of ice on sidewalk. See Dis. of Col. v. Fraser, 21 App. D. C. 154 ; 31 W. L. R. 83. Of municipality in permitting existence of obstruction in sidewalk a question for jury. Dotey v. Dis. of Col, 25 App. D. C. 332; 33 W. L. R. 393. III. Conduct and Operation of Railroads. If by reason of the slightest negligence of a carrier in respect of the safety of the cars and appliances employed in the transportation of pas- sengers, a passenger is injured, the carrier is liable in damages therefor. 678 Negligence. And so held in the case of a child of four years of age injured by falling through an opening between the floor and side-rail of a street railway car. Metropolitan R. R. v. Falvey, 5 App. D. C. 176 ; 33 W. L. R. 53. A common carrier is not an insurer of persons, and while held to rigid accountability for the performance of safe transportation, passengers must, at every stage of that transportation, use all reasonable care and caution of which the circumstances are capable. A passenger may not place himself in a position of danger and thereafter hold the carrier liable for the result of his own carelessness ; and so held in the case of one killed, while standing on the edge of a station platform and facing a north-bound train which was slowing up to stop, by being struck by a south-bound train running at a high rate of speed along a track straight for a mile or more. Edgerton v. Balto. & O. R. R. Co., 6 App. D. C. 516 ; 23 W. L. R. 369. In passenger cases a prima facie case of negligence on the part of the defendant is made by showing that the accident causing the injury oc- curred while the plaintiff was a passenger; and the burden rests upon the defendant to explain the cause of the accident, and to show, if that be the defense, that the plaintiff was negligent and that such negligence caused or contributed to the injury. Washington, A. &■ Mt. V. Ry. Co. v. Chapman, 36 App. D. C. 472 ; 34 W. L. R. 30. It is the duty of the conductor of a street railway car to stop the car when hailed, and having done so, to hold the car and not permit it to start until the party so hailing has, at least, reasonable time to take a safe position inside. A failure to do so contitutes negligence. Anacostia &■ Pot. R. R. Co. V. Klein, 8 App. D. C. 75 ; 24 W. L. R. 117. The failure of a conductor of a street car to stop his car, upon being hailed by one wishing to board the car, and hold it and not permit it to start until such person has reasonable time to take a safe position inside, is negligence entitling a person to recover, providing he was exercising reasonable and prudent care for his own safety. lb. Where, in an action against a street railway company for negligently causing the death of plaintiff's intestate, it appeared that the car, though crowded, was stopped to take on passengers at the regular stopping place where intestate and others were waiting to take passage, and as he was in the act of boarding the car, having grasped the bar or hand rail in an attempt to get on, the bell rang and the car started, and he was dragged for some distance, the question of defendant's negligence and of the contributory negligence of plaintiff's intestate was for the jury. Guenther V. Metropolitan R. R. Co., 23 App. D. C. 493 ; 32 W. L. R. 422. Plaintiff, while seeking to board a car of an electric street railway com- pany at one of its regular stopping places, was struck by a car of another company (the defendant). At the point of the accident the tracks of the two companies were distant from each other four feet and ten inches; but when there was a car on each track the space between them was only sixteen or eighteen inches. It appeared from the testimony for plaintiff that the motorman on defendant's car was not looking ahead and had hold neither of the controller nor of the brake, but was leaning over engaged in pulling up the fender on his car. Held, that the case was one i^EGLIGENCi;. ^7^ proper to be submitted to the jury. Hawley v. Columbia Ry. Co., 25 App. D. C. 1 ; 33 W. L. R. 150. Where a street car has stopped to allow passengers to get off, and a passenger, without unreasonable delay, has risen from her seat for that purpose, and while in the act of stepping off the car it is negligently put in motion and she is thrown to the ground and injured, her right to re- cover for the injury is not, as matter of law, impaired by the fact that she may have stepped from the car with her back to the front of the train and without taking hold of the car. Rouser v. Wash. & G. R. R. Co., 13 App. D. C. 320; 26 W. L. R. 759. Where a car stopped half a block short of a transfer station and plaintiff in attempting to alight was thrown off by a jerk of the car in pulling up to the station and was injured, held, that it was the conductor's duty to see that plaintiff alighted in safety though no notice of his intention to alight was given. Wash. & G. R. R. Co. v. Grant, 11 App. D. C. 107; 25 W. L. R. 342. In an action against a street railway company for injuries caused by the sudden starting of a car, evidence showing the crowded condition of the car is relevant as tending to show whether plaintiff was negligent in attempting to leave it and whether the conductor should have used greater care in allowing passengers to alight. Metropolitan R. R. Co. v. Jones, 1 App. D. C. 200; 21 W. L. R. 646. A passenger by riding on the platform of a street railway car assumes the risks that naturally ensue, but if he exercises due care and is injured by the negligence of the company in running the car, the company can- not be heard to say that he has no right of action when it is responsible for the practice which resulted in the injury. Capital Traction Co. v. Brown, 29 App. D. C. 473 ; 35 W. L. R. 306. Where a street car company, although not required by law to do so, with the knowledge of the public maintains platform gates and keeps them closed on the side next to the other track as a matter of precaution, the failure to close them at the time of the occurrence of an accident and the probable effect of such failure as contributing to the accident are proper matters for the jury to consider and determine. Adams v. Wash. &■ G. R. R. Co., 9 App. D. C. 26 ; 24 W. L. R. 364. Where a street railway company has knowledge of the existence of an obstruction in the street at a point on its line of road in such close prox- imity to its tracks that a passenger riding on the foot-board of the car is liable to come in contact therewith, it should not allow passengers to ride on the foot-board ; and in an action by a passenger injured by such obstruction while riding on the foot-board, the question of negligence is for the jury. Koonts v. Dis. of Col., 24 App. D. C. 59; 33 W. L. R. 390. Reasonable care is required of a railroad to prevent injury at public crossings and other places where, within its knowledge, persons are accus- tomed to cross its tracks ; the degree of care varying with the dangers and demands of the situation. Balto. & Pot. R. R. Co. v. Golway, 6 App. D. C. 143; 23 W. L. R. 308. In the absence of a statutory requirement, or proof that a railroad crossing is unusually dangerous, the question of negligence of the railroad 68o Negi,igi;nce. company in failing to maintain gates there is not one for the jury. Balto. & 0. R. R. Co. V. Adams, 10 App. D. C. 97; 25 W. L. R. 167. The letting down of gates at a railroad crossing with a street car be- tween them and a train approaching, is more than ordinary negligence on the part of the gatekeeper. Wash. & G. R. R. Co. v. Hickey, 5 App. D. C. 436; S3 W. L. R. 177. In an action against a railway company for wrongfully causing death, it appeared the accident occurred at a crossing over which deceased was in the habit of passing each night. There was no direct evidence as to whether the injury was caused by a car which had broken loose from a number that were being shifted, or by an express train that had passed on an adjoining track, but the circumstances in evidence tended to show that the former inflicted the injury. At the time of the accident the crossing gates were down, but the evidence indicated that they were often lowered from 10 to 11 p. m. and kept lowered until daylight the next morning, without regard to the passing of trains; and that persons desir- ing to cross were compelled to call upon the gateman to raise the gates, or, as they frequently did, to pass under them. The negligence of the defendant was alleged to consist in its employes permitting the car to escape and run down the track past the crossing, and the defective opera- tion of the brakes on the car. Held that the questions of negligence and contributory negligence were for the jury. Balto. & Pot. R. R. Co. v. Landrigan, 20 App. D. C. 135; 30 W. L. R. 595. While the maintenance of gates at a steam railway crossing, which are regularly lowered when trains are passing and then uniformly raised and kept raised when none are due or expected, is a warning of danger to the public, and may be sufficient, under ordinary conditions, to justify a con- clusion of contributory negligence, as matter of law, on the part of one who undertakes to cross the tracks while the gates are down and is run over by a passing train ; where the evidence discloses that such gates were not uniformly lowered and raised, but were frequently lowered before mid- night and kept lowered until daylight next morning, without regard to the passing of trains, the question of whether a party attempting at about midnight to cross the tracks when the gates were down is negligent is for the jury. lb. In an action by the administrator of a person whose death was caused by injuries received at a railroad crossing, in the absence of all evidence tending to show whether plaintiff's intestate stopped, looked and listened before attempting to cross the tracks, the presumption is that he did so. Baltimore & Pot. R. R. Co. v. Landrigan. 191 U. S. 461 ; 31 W. L. R- 809. Where the gates at a railroad crossing were generally kept lowered at night, without regard to the passing of trains, and a party injured at such crossing had knowledge of that fact, the circumstance that the gates were down at the time he attempted to cross the tracks was not of itself a warning to him of the presence of danger, and contributory negli- gence could not be imputed to him from that fact alone. lb. Under such conditions, it is not the duty of pedestrians, before attempt- ing to cross the tracks, to seek the gateman, and not to attempt to cross until he raises the gates. lb. Where a railroad has for a series of years maintained a gate and at- Negligence. 68 i tendant at a crossing, the fact that there was a gate and that it was the con- stant practice to lower it when trains were passing or about to pass, and that it was not lowered on the occasion of an accident to one using the crossing, is proper to be considered by the jury in determining the ques- tion of contributory negligence. Balto. & Pot. R. R. Co. v. Carrington, 3 App. D. C. 101 ; 23 W. L. R. 384. In an action for damages for injuries sustained by one in attempting to pass over a railroad crossing, at which was a gate and attendant, evi- dence to show that the attendant was asleep two hours and a half before the accident is admissible as tending to show that he was asleep at the time thereof. Ih. Where declaration in action for damages alleges that deceased was killed "at or near a point where'' a street crossed the tracks of defendant railroad, a prayer by defense that plaintiff is not entitled to recover if jury finds that deceased was killed while crossing tracks at point not a street crossing, is properly refused as calculated to mislead jury, es- pecially where prayer for defense is granted instructing jury that plain- tiff not entitled to recover if there is a finding that deceased was killed while walking along tracks instead of across them. Cowen v. Merriman, 17 App. D. C. 186 ; 28 W. L. R. 814. Under such circumstances it is not error for court in general charge to instruct jury that it is not necessary that it should appear that deceased when killed was exactly and technically upon the crossing, provided he was substantially using it and it was his purpose to cross there in the ordinary and usual way. Ih. Where deceased was killed on railroad crossing in the night time when crossing gates were up, was last seen alive when about to step on the tracks immediately after passing of excursion train, and testimony was conflicting as to whether the train which struck him, consisting of locomo- tive and tender, was running backward, plaintiff's witnesses who so tes- tified also stating that there was no light on forward end of tender, held that refusal of trial court to direct verdict for defendant on ground of contributory negligence was not error. lb. Where in an action against a street railway company for personal in- juries, the negligence charged is that the motorman of the car failed to ring his gong on approaching a crossing, it is incumbent upon plaintiff to prove the motorman's duty in that respect. Barrett v. Columbia Ry. Co., 20 App. D. C. 381 ; 30 W. L. R. 549. The failure of the driver of a street railway car to observe proper precautions before attempting to cross a steam railway tract is gross negligence. Wash. & G. R. R. Co. v. Hjckey, 5 App. D. C. 436; 33 W. L. R. 177. It is gross negligence for a street railway company to use cars which almost touch as they pass each other, and it is doubly negligence for it to run such cars with a running rail placed where passengers would naturally rest their arms. Under such circumstances it is the duty of the company, at the very least, to see that one of the cars comes to a full stop and that the other passes very slowly. Georgetown &• Tennally- town Ry. Co. v. Smith, 35 App. D. C. 359 ; 33 W. L. R. 261. The unauthorized act of a railroad company in allowing cars to stand 682 ISfEGLIGENdli. on its tracks in one of the thoroughfares of the city, which persons have a right to use, and where such standing cars may be the means of exposing people to danger, is an act of negligence, if not of positive nuisance. Balto. & Pot. R. R. Co. v. Webster, 6 App. D. C. 182; 33 W. L. R. 322. A railroad track is itself notice of danger and no person of ordinary intelligence has a right to go upon it without stopping and looking for ■approaching trains. A passenger or intending passenger, equally with other persons, is bound by this rule, except where, by the action of the common carrier, he has been reasonably induced to believe that there is no occasion for observance. Warner v. Balto. & Ohio R. R. Co., 7 App. D. C. 79 ; 23 W. L. R. 679. Reversed in 168 U. S. 339, on the point as to the relative duty of a carrier to a passenger and a mere traveller upon the highway. Whether it is negligence to run a street car at full speed past a usual stopping place when persons can plainly be seen standing upon the plat- form between the inner rails, awaiting a car approaching from the opposite direction, is a question for the jury, where the street car company had sanctioned such a practice on the part of intending passengers, and the space between the rails,, while wide enough to enable a person standing in the center to escape injury, left but a narrow margin of safety. Chunn V. City & Suh. Ry. Co., 207 U. S. 302; 36 W. L. R. 20; reversing 23 App. D. C. 551. It is the duty of a railroad company to use ordinary care and caution and reasonable diligence in the conduct and management of its trains, so that persons or property on the public highway shall not be injured by a negligent or dangerous act performed by any one on the train, either passenger or employe. Fletcher v. Balto. & Pot. R. R. Co., 168 U. S. 135 ; reversing 6 App. D. C. 385. In an action for injuries to a child three and one-half years of age caused by being struck by a street railway car while he was running across the street, the negligence on the part of the railroad complained of being that the driver of the car was looking to one side and not keeping a proper lookout, an instructed verdict for defendant held error. Reiners i: Wash. & G. R. R. Co., 9 App. D. C. 19 ; 24 W. L. R. 333. Whether a street railway raotorman was negligent in failing to get his car under such control, after seeing several young boys on the track at a public crossing where children were in the habit of playing, as would have enabled him to prevent an injury to one of the boys whose foot was caught, is a question for the jury, although he may have sounded the gong when far enough away -to give ample warning, and, as soon as he saw that the boy could not or would not leave the track, may have done all in his power to stop the car before the injury. McDermott v. Severe, 202 U. S. 600; 34 W. L. R. 577. Where a railroad company was in the habit of running a repair train daily to convey workmen to and from their work, and the workmen were allowed to bring with them on their return in the evening pieces of refuse timber for fuel which would be thrown from the train at a point near their homes, the only caution given the men by the foreman being that they should be careful not to hurt any one in so doing, and a person NegivIgenci;. 683 lawfully on the street was injured by a piece of timber thus thrown, held, that the question of the defendant railroad's negligence should have been submitted to the jury. Fletcher v. Balto. & Pot. R. R. Co., 168 U. S. 135 ; 25 W. L. R. 774 ; reversing 6 App. D. C. 385. In an action for personal injuries, where the question is whether the de- fendant railway company was negligent in the construction and mainte- nance of its track at a crossing, it appearing that a space of two and one- half inches wide was left between the inner edge of the rail and the cross- ing board, in which space the plaintiff, a child of seven years, caught his foot and was run down, while evidence of the general custom of other railways in the matter of construction, maintenance, and operation is probably proper for consideration of the jury in determining the question of negligence, it is neither conclusive nor of especially great weight; and an instruction based entirely upon the evidence as to the custom of rail- ways in respect of the space usually left between the inner edge of the rail and the crossing board is properly refused. Held, that the fact that no similar accident had ever before occurred within the knowledge of the defendant, even if admissible, is of no weight in determining the ques- tion of negligent construction; and under the facts and circumstances of the case, the question whether the motorman, who had ample opportunity to do so after he first saw the plaintiff with other children on or near the track, was not guilty of negligence in failing to get his car under such control that he could have stopped it in time to avoid running over plaintiff after he actually saw that his foot was caught between the board and the rail, was properly submitted to the jury for determination. Mc- Dermott v. Severe, 25 App. D. C. 276 ; 33 W. L. R. 226. In an action against a railway company for personal injuries, a re- quested instruction, that if the motorman sounded his gong when far enough away from plaintiff and his associates so that they had sufficient time to leave the track before the car reached them, he had the right to assume they would do so, and was not required to commence to stop the car until such time as he discovered the plaintiff had his foot caught between the rail and board, held properly refused. lb. Where, in an action for personal injuries against a street railway com- pany it appeared that as plaintiff was driving alongside of defendant's track, the wagon in which he was seated was struck by the rear end of a passing car which in rounding a curve at that point projected over the rails about four feet, severely injuring him, the question of negligence and contributory negligence held properly submitted to the jury. Metro- politan R. R. Co. V. Blick, 22 App. D. C. 194 ; 31 W. L. R. 457. In an action against a street railway company to recover for personal injuries, it appeared that just previous to the accident plaintiff was riding a bicycle alongside a west-bound car, and on the car passing him had turned and attempted to cross the tracks when he was struck by an east- bound car and injured. The street at the point of the accident is straight for a considerable distance, and he could easily have seen the east-bound car by keeping a careful lookout. Held, that the plaintiff was guilty of negligence, and a verdict for defendant was properly directed. Barrett V. Columbia Ry. Co., 20 App. D. C. 381 ; 30 W. L. R. 549. Where a woman was struck by a railroad train while walking on the 684 Negugence. tracks of the railroad, held, that before negligence could be inferred from the failure of the engineer of the train to sound a warning by bell or whistle, it must be made to appear that he saw the person injured in time to do so. Stearman v. Balto. & O. R. R. Co., 6 App. D. C. 46; 23 W. L. R. 316. Where a railroad employe walking on the east-bound track of an electric railway at an early hour in the morning was struck and injured by a car on that track moving westwardly, at a point where the car was entitled to an unobstructed right of way, it appearing that the car had a headlight and that the space between the tracks was sufficient and suitable to walk on, held, that the evidence was insufficient to show negligence on the part of the railway company. Stewart v. Wash. & G. F. Ry. Co., 22 App. D. C. 496; 31 W. L. R. 748. A street railway pitman, by unnecessarily touching the uninsulated parts in adjusting the leads connecting the motive power of a street'-car with the overhead current, relieves the company from liability for his death from the resulting shock, although the conductor of the car may have been negligent in permitting the trolley pole to come in contact with the trolley wire. Looney v. Metropolitan R. R. Co., 200 U. S. 480; 34 W. L. R. 591. The existence of defects in the insulation which would render a street railway company liable for the death of an employe occasioned by a shock received in adjusting the leads connecting the motive power of a car with the overhead current can not be inferred from the presumption of the exercise of due care on the part of the person killed, although, in the absence of a leak in the insulation, -no shock could have been received unless he had unnecessarily touched the uninsulated ends of the leads. Ih. The fuse box of an electric car was blown out, causing a loud report and flame to proceed therefrom, and in the stampede which resulted plaintiff either jumped or was pushed from the car and injured. There were cir- cumstances, apart from the nature of the accident itself, indicating that the explosion and flame were produced by the fact that the current was suddenly fed to the motor. Held, that the question of whether the acci- dent was caused by the negligence of defendant's employes was for the jury. Right v. Metropolitan R. R. Co., 21 App. D. C. 494; 31 W. L. R. 302. In an action against a railroad company for personal injuries, held that an instruction was proper that the defendant was liable if a broken wheel which caused the accident could have been discovered if reasonable care and inspection had been used, and such care and inspection was not used, or if the accident happened in some other way from some other de- fect, too rapid running over the particular point, or any other negligence or carelessness of those in charge of the train. Chesapeake & Ohio Ry. Co. V. Howard, 14 App. D. C. 262 ; 27 W. L. R. 146. Plaintiff purchased a ticket over defendant's road for G and boarded a train to which he was directed. While on this train he was told by a person whom he supposed to be an employe of defendant that the train for G. was on the opposite side of the platform. He thereupon crossed the platform and boarded a train which was just leaving the station. While the train was moving at a rate of from 3 to 4 miles an hour he Negligence. 685 was informed by a person in uniform, supposed to be the conductor, that the train was not for G. and that if he did not want to go to B. he had better get off, whereupon, without waiting or asking to have the train stopped, he jumped off and was injured. Held, that, even if the statement of the conductor had been a command it was plaintiff's duty to disregard it until the^train had been brought to a position to enable him to alight with safety and that he was not entitled to recover. Jones v. Balto. & O. R. R. Co., 4 App. D. C. 158 ; 33 W. L. R. 653. The failure of a railroad company to observe a municipal ordinance regulating the speed of trains is negligence. Balto. & Pot. R. R. Co. v. Golway. 6 App. D. C. 143 ; 33 W. L. R. 308. As to duty of a common carrier to its passengers. See Kehan v. Wash- ington Ry. & El. Co., 38 App. D. C. 108; 34 W. L. R. 451. As to liability of railroad for personal injuries to railway postal clerk resulting from its negligence. Chesapeake &■ Ohio Ry. Co. v. Patton, 33 App. D. C. 113; 33 W. L. R. 85. As to negligence of railroad in ejectment of trespasser from train. See Burch V. Balto. & Pot. R. R. Co., 3 App. D. C. 346 ; 33 W. L. R. 401. IV. Of Passengers and others in Respect of Railroads. Riding on the back platform of a crowded street railway car is not negligence per se, especially where it is not shown that there was a rule of the company to the contrary, and it is shown that the conductor knew of the crowded condition of the car when he permitted the party so riding to become a passenger. Metropolitan R. R. Co. v. Snashall, 3 App. D. C. 430; 22 W. L. R. 377. It is not negligence per se to ride upon the platform of an electric street railway car, even though there is ample standing room inside the car, and a notice that it is dangerous to ride upon the platform is posted on the car. Capital Traction Co. v. Brown, 39 App. D. C. 473 ; 35 W. L. R. 306. Riding on the platform of a .crowded cable car, with the consent, express or implied, of the agents in charge of the car, will not amount to contribu- tory negligence in law. Adams v. Wash. & G. R. R. Co., 9 App. D. C. 26; 34 W. L. R. 364. While a passenger may ride upon the platform, step or foot-board of a car, with the express or implied consent of the carrier, without incurring the imputation of contributory negligence as matter of law, he thereby assumes the increased risk that may result therefrom in the ordinary course of things when the car is properly managed. Harbison v. Met. R. R. Co., 9 App. D. C. 60 ; 34 W. L. R. 438. Whether standing on the platform of a car, with his back to the car and his hands in his pockets, on a cold night, is an act of negligence on the part of a passenger that contributed in an appreciable degree to his fall from the ear as it rounded a curve, is a question for the jury; as is also the question whether his indulgence in intoxicating liquors had a like effect. Adams v. Wash. & G. R. R. Co., 9 App. D. C. 36; 24 W. L. R. 364. It is not negligence per se for a passenger on a railway car, when it approaches a station and has slowed down preparatory to coming to a full 686 Negwgbnch;. stop, to leave his seat and go out upon the platform in order to alight when it stops. Washington, A. & Mt. V. Ry. Co. v. Chapman, 26 App. D. C. 472 ; 34 W. L. R. 30. Passing from one car to another while a train is in motion is not contributory negligence in law, save under peculiar and exceptional cir- cumstances ; but a passenger injured while so doipg must, in order to recover, show that the injury resulted from some act of negligence on the part of the railroad. McAfee v. Huidekoper, 9 App. D. C. 36; 24 W. L. R. 366. One riding on the foot-board of a street car and holding on to the handle bar, with the knowledge that there is standing room inside the car, is guilty of contributory negligence. Brightmood Ry. v. Carter, 12 App. D. C. 155. A passenger on a street car taking a position and riding on the run- ning-board of the car incurs the ordinary risk of such a position; but his act in so doing is not negligence in law which would justify the court in directing the jury that he was guilty of contributory negligence defeating his right to recover for injuries sustained by him. Koontz v. Dis. of Col, 24 App. D. C. 59; 32 W. L. R. 390. A passenger in a public conveyance is bound to use only reasonable prudence and caution in looking out for his safety ; and an act done by a passenger in the presence of impending danger for the purpose of escap- ing therefrom may not under circumstances constitute contributory negli- gence although it may in fact have contributed to the injury complained of. Wash. & G. R. R. Co. v. Hickey, 5 App. D. C. 436 ; 23 W. L. R. 177. Where, in a stampede of the passengers of a street car following the blowing out of a fuse, one of them is injured by jumping or being pushed from the car, she cannot be said to be guilty of contributory negligence precluding recovery. Right v. Metropolitan R. R. Co., 21 App. D. C. 494; 31 W. L. R. 302. It is not negligence in law for a party to attempt to board a slowly- moving street-car drawn by horses for the purpose of becoming a pas- senger thereon. Brown v. Wash. & G. R. R. Co., 11 App. D. C. 37; 25 W. L. R. 404. In an action against a railroad company for injuries sustained by plaintiff at a crossing, held, that the question of plaintiff's contributory neg- ligence should have been left to the jury, and that a directed verdict for defendant was improper. Walter v. Balto. &■ O. R. R. Co., 6 App. D. C. 20 ; 23 W. L. R. 326. A party approaching a railroad crossing who fails to keep a proper lookout and take precautions for his own safety, but relies solely on the attention to their duties of employes of the railroad, is guilty of contribu- tory negligence depriving him of the right to recover for injuries sus- tained. Ih. The measure of diligence required varies with the circumstances of each case. lb. In an action for wrongful death against a street railway company, it appeared the cars of defendant company, when alongside each other, were less than three inches apart, and when in motion were apt to come mto contact. Deceased was sitting with his arm resting on the running rail Negligence. 687 of the car, and as a car passed on the other track he was caught between the cars, pulled out of the one in which he was riding, and killed. Held, that an instruction that if deceased extended his arm beyond the outer edge of the car to such an extent that he was struck by the car coming in the opposite direction, and that but for such action on his part the accident would not have happened, the defendant was not liable, was properly re- fused. Georgetown & Tenallytown Ry. Co. v. Smith, 25 App. D. C. 259; 33 W. L. R. 261. Danger of being hit by a passing car is not such a peril as a passenger on a street car is bound to anticipate. Ih. A person is not, as a matter of law, guilty of contributory negligence precluding recovery in following the customary practice sanctioned by a street car company of standing upon the platform between the two inner rails at a usual stopping place, awaiting an approaching car, as precludes a recovery for injuries sustained from being struck by a car which ran by this stopping place on the other track at full speed, where the space between the rails, though leaving but a narrow margin of safety, was wide enough to permit a person standing directly in the center to escape injury. Chunn v. City & Sub. Ry. Co., 207 U. S. 302; 36 W. L. R. 20; reversing 23 App. D. C. 551. V. Buildings and Grounds. An owner is not an insurer of the safety of persons going and com- ing on his premises by implied invitation, nor does he owe them the highest degree of care. The measure of his duty is reasonable prudence and care; and though he may lease the rooms in his buildings to others, the same rule applies where he retains the control of the stairways and other means of ingress and egress. Bell v. Central Nat. Bank, 28 App. D. C. 580; 35 W. L. R. 69. The owner of land who, by invitation, express or implied, leads others to come upon his premises for a lawful purpose, is liable to such per- sons who, exercising reasonable care themselves, may be injured by reason of the unsafe condition of the premises, negligently suffered to exist, without reasonable notice. lb. There is no reason why a stairway should be artificially lighted in the daytime, unless by the character of the construction within the building the daylight shall have been excluded so as to require artificial light to enable persons to see their way along it. lb. As to what constitutes negligent construction of a building rendering owner liable at suit of one injured. See lb. In an action for injuries caused by falling through a trap door alleged to have been negligently left open, the admission of testimony by a witness on behalf of plaintiff as to his custom of giving notice when the trap door was to be opened held not error. Atchison v. Wills, 21 App. D. C. 548; 31 W. L. R. 311. Concealment by landlord from tenant of dangerous defects in prem- ises constituting culpable negligence by landlord which will afford ground of action against him in case lessee sustains injuries therefrom. Howell V. Schneider, 24 App. D. C. 532 ; 33 W. L. R. 82. Jt is the dutjr of the Washington Market Company to keep the aisles 688 Negligence. and corridors of its market building free from all obstructions and danger to those invited to visit and patronize the market; and it can not relieve itself of liability for the unsafe condition of these aisles by imposing the duty of keeping them safe and free from obstructions upon the lessees or licensees of the stalls in the building. The negligence of such lessees or licensees in that respect would be the negligence of the company. Washington Market Co. v. Clagett, 19 App. D. C. 13; 29 W. L. R. 807. In an action against a market company for injuries sustained by reason of obstructions in the aisles of the market-house, actual notice by de- fendant of such obstructions held not essential to plaintiff's right to re- cover. Even if so and defendant had the means of knowledge but negli- gently remained ignorant, actual notice will be imputed. Ih. The act of a fireman in the employ of the District of Columbia in inviting a member of his family to enter the second floor of an engine house to see a passing procession is entirely outside of his duties and powers ; and where one so invited is injured by falling through an opening in the floor used by the firemen in discharging their duty, the District cannot be held liable, even though the firemen may have been negligent in failing to protect such opening. Brown v. Dis. of Col., 35 W. L. R. 162. One injured by falling through an opening in the floor of a fire-engine house, while therein at the invitation of a fireman, cannot recover from the District of Columbia even though the invitation was given with the knowledge and consent of the District Commissioners, they being without power to grant such permission. lb. Liability of owner of building for negligence of contractor in removal of old material. Swart v. Justh, 24 App. D. C. 596 ; 33 W. L. R. 149. The primary duty to guard and protect a child against patent and unconcealed dangers devolves upon the parent and not upon a stranger; and there is no duty resting upon an owner of real estate on which is a pond or other body of water to keep the land safe for trespassers, even where those trespassers are children. Sullivan v. Huidekoper, 27 App. D. C. 154; 34 W. L. R. 254. VI. Unsafe Appliances. In an action for injury received by plaintiff while engaged in feeding a mangle in a steam laundry, the negligence of defendant was alleged to consist in that the finger guard on the mangle was improperly ad- justed. It appeared plaintiff was 22 years of age and had about two years' experience in operating mangles in other laundries, and had been operating the one at which she was injured for more than two months prior to the accident. The space left in the adjustment of the finger guard, which it was alleged was too great, was plainly visible. Held, that she was not entitled to recover, and the trial court properly directed a verdict for defendant. Butler v. Praeee, 25 App. D. C. 392; 33 W. L. R. 387. Where a fireman on a railroad was injured by the slipping of the number plate on the engine, which he was using as a support while passing over the front of the engine, and such use was unknown to de- fendant, which had amply provided for his safety by means of foot boards Negligence. 689 and hand rails on the engine, held, that the defendant was not negligent. McCauley v. South. Ry. Co., 10 App. D. C. 560 ; 25 W. L. R. 331. In an action to recover for personal injuries, where the evidence tended to show that while plaintiff, a brakeman, was detaching certain cars, by reason of the defective car couphng, his finger was caught between the head of the pin and the car and badly mashed, and that in jerking his finger out and excited by the pain he slipped and his foot was caught as his finger had been and crushed, held that the question of his contributory negligence was for the jury. Balto. &■ Pot. R. R. Co. v. Elliott, 9 App. D. C. 341 ; 24 W. L. R. 760. In an action for personal injuries caused the plaintiff, a lad of 16 years of age, by coming into contact with electric wires maintained by defendant, the insulation of which had become defective, held, in view of the evi- dence as to the condition and use of the wires, plaintiff should have been permitted to testify that he believed the wires were old and disused, as bearing on the question of defendant's negligence and his own con- tributory negligence. Cl^i^^^ts v. Potomac Blectric Power Co., 26 App. D. C. 482 ; 34 W. L. R. 158. Whether evidence of the general custom of electric lighting companies throughout the country to use uncovered circuit or primary wires of high voltage is admissible under any circumstances, qucere; but to admit such evidence in contravention of the express prohibition of a municipal regu- lation is clearly erroneous. lb. Where there was evidence tending to show that the wires causing the injury sued for were directly connected with the central power station, and, although used to light but two houses and a single incandescent alley light, carried a current of about 2,000 volts, held error to exclude a question asked on cross-examination of defendant's expert as to the voltage necessary to light said two houses and the single incandescent lamp. Ih. Defendant, an electric lighting company, in removing its fixtures from a building, failed to remove the service wires in the cellar thereof or to discontinue the current therein by means of the switch provided for that purpose in the street. The wire by some means became exposed, and plaintiff's intestate, while in the cellar, came in contact therewith and was instantly killed. Held, that the question of whether or not defendant was negligent in failing to cut off the current was for the jury to deter- mine. U. S. Electric Co. v. Sullivan, 23 App. D. C. 115 ; 31 W. L. R. 406. The test of care or skill required in the methods, and use and operation of machinery and appliances, is the ordinary usage and methods that obtain and are observed in the particular business, as practiced by the average prudent man professing knowledge of the business; and rail- road companies form no exception to the rule. Right v. Metropolitan R. R. Co., 21 App. D. C. 494; 31 W. L. R. 303; Block & Tile Co. v. Mackey, 15 App. D. C. 410 ; 38 W. L. R. 35. VII. Animals, Depredations by. Animals fer(e naturce, as a class, are known to be mischievous ; and who- ever undertakes to keep such an animal in places of public resort is or may be liable for injuries inflicted by it on a party who is not guilty 690 Negligence. of negligence and who is otherwise without fault. And in such case it is not necessary to aver negligence in the owner or keeper, as the burden is upon the defendant to disprove that implied imputation. Jack- son V. Baker, 24 App. D. C. 100 ; 32 W. L. R. 430. The superintendent of a zoological park, required by law to receive any animals the regents of the institution with which the park was con- nected might direct to be placed in the park, is not responsible for an in- jury inflicted by an animal in the absence of his own negligence. lb. VIII. Master and Servant. To make a master liable for an injury caused by his servant's negligence, the act of the servant causing the injury must have been done in the serv- ice of the master, and in doing an act the master was bound to perform or which was done by his direction. Sherwood v. Warner, 27 App. D. C. - 64; 34 W. L. R. 110. While an employer is not liable to his servant for injuries caused by the negligence of a fellow servant, it is his duty to furnish to his servant reasonably safe appliances, and he cannot escape liability by delegating to another the work of furnishing them. Balto. & Pot. R. R. Co. v. Elliott, 9 App. D. C. 341 ; 24 W. L. R. 760. The real ground of the exemption of a master from liability to his servants for injuries received in the course of employment by the negli- gence of fellow servants, is the implied contract to assume the risk of such negligence. Hughson v. Richmond & D. R. R. Co., 2 App. D. C. 98 ; 23 W. L. R. 55. As to relation of master and servant to charge former with latter's negligence. See Newbold v. Harmon, 26 W. L. R. 808. As to imputation to master of negligence of servant. See McCauley v. South. Ry. Co., 10 App. D. C. 560; 25 W. L. R. 331. IX. Fellow Servants. The reciprocal use of tracks by street railways under contract author- ized by Congress, held an adoption of the appliances of each other for that purpose, and that the employes of the two companies became fellow servants and one cannot recover for injuries caused by negligence of an- other. Looney v. Metropolitan R. Co., 24 App. D. C. 510; 33 W. L. R. 39. As to who are fellow servants. See Hughson v. Richmond & D. R. R. Co., 3 App. D. C. 98 ; 22 W. L. R. 55. X. Assumption of Ris'k. Where an employe undertakes and continues the use of defective and unsafe appliances, either with actual notice of such defect, or where the same is open to ordinary observation in the usual course of its use, he is deemed to have accepted the risk of all danger reasonably to be apprehended from such use, and cannot recover of his employer. Butler V. Frazee, 25 App. D. C. 393 ; 33 W. L. R. 387. As to right of recovery against railroad for negligence, by passenger riding upon a free pass which contained a stipulation of assumption of risk by user. See Boering v. Ches. Beach R. Co., 193 U. S. 442; 32 W- L, R. 195 ; affirming 20 App. D. C, 500 ; 30 W, L. R, 742, NbgivIGEnce. 691 As to assumption of risk by passenger of railroad riding on platform, step or running board of car. See Harbison v. Met. R. R. Co., 9 App. D. C. 60; 24 W. L. R. 438; Capital Traction Co. v. Broivn, 29 App. D. C. 473; 35 W. L. R. 306. XI. Children. Less discretion is required of an infant of tender years than of an adult, and the degree depends upon the infant's age and knowledge, and must be determined by the circumstances of the case. Metropolitan R. R. V. Palvey, 5 App. D. C. 176 ; 23 W. L. R. 53 ; Balto. & Pot. R. R. Co. v. Cumberland, 12 App. D. C. 598; 26 W. L. R. 306. Whether a child of tender years has exercised such care as would reasonably be expected from a person of his age and capacity, is a ques- tion to be determined by the jury from the particular circumstances of the case. Barstow v. Capital Traction Co., 29 App. D. C. 362. A child of 12 years of age is not required to exercise the same degree of care and caution to avoid injury as an adult under similar circum- stances ; and the question is whether he has exercised such care as was reasonably to be expected of a person of his age and capacity. Balto. & Pot. R. R. Co. V. Webster, 6 App.D. C. 182; 23 W. L. R. 322. It is not negligence for a child to play upon a sidewalk. Dis. of Col. v. Boswell, 6 App. D. C. 402 ; 23 W. L. R. 423. As to whether the negligence of a parent or guardian in control of a child should be imputed to the child. See Metropolitan R. R. v. Palvey, 5 App. D. C. 176 ; 23 W. L. R. 53. XII. Contributory Negligence in General. Contributory negligence is not presumed to exist in any case, and must be established by defendant, unless it necessarily appears in mak- ing out the plaintiff's own case. Balto. & Pot. R. R. Co. v. Carrington, 3 App. D. C. 101 ; 22 W. L. R. 284. Contributory negligence is necessarily implied from a person's exposure of himself to a position of obvious peril, unless the circumstances, to be shown by him, or on his behalf, are such as tend to disprove the infer- ence. Warner v. Balto. & Ohio R. R. Co., 7 App. D. C. 79; 23 W. L. R. 679. Contributory negligence, in order to deprive a party of his right to re- cover for injury received through the negligence of another, must in some degree have contributed thereto. Pre-existing negligence which amounts to a mere condition, and though immediate in point of time, is nevertheless remote in the sense of causation, is not sufficient. Dis. of Col. V. Boiling, 4 App. D. C. 397 ; 22 W. L. R. 753. An act done in the presence of impending danger to life or limb, for the purpose of escaping therefrom, may not, in contemplation of law con- stitute contributory negligence, though it may in fact have contributed to the production of the injury complained of. Ward v. Dis. of Col., 24 App. D. C. 524 ; 33 W. L. R. 71 ; Jennings v. Phila., B. & W. Ry. Co., 35 W. L. R. 175. Where, at the intersection of two railroads, a collision occurs between a h9rs§-?ar and an electric one by reason of the high rate of speed of th? 692 Negugence. latter and its failure to stop before reaching the point of intersection, it cannot be said, as a matter of law, that the driver of the horse-car was guilty of contributory negligence in attempting to cross the track of the electric car. Met. R. R. Co. v. Hammett, 13 App. D. C. 370; 36 W. L. R. 762. The fact that a person went into a cellar with knowledge that only a few hours before an able-bodied man had met sudden death by coming in contact with electric current held not to require the court to hold, as matter of law, that he had been guilty of contributory negligence defeating a recovery, when in so entering the cellar he was obeying the direction of the managing agent of his employer, who had immediately preceded him into the cellar without being injured; but the question of his contribu- tory negligence is for the jury. U. S. Electric Co. v. Sullivan, 22 App. D. C. 115 ; 31 W. L. R. 406. At a suburban point on defendant's electric railway where cars were stopped for discharging and taking on passengers, there was a clear space of 3 feet 6 inches between cars when passing each other, in which space intending passengers, with the knowledge and sanction of de- fendant, were accustomed to stand while waiting to take the cars. A car approaching in either direction could be seen a quarter of a mile away. Plaintiff, while standing on the platform in this space waiting to take a car was struck by a car running on the other track and injured. Held, that while under the circumstances of the case, the question of whether the defendant was negligent in running the car past the place where people were standing waiting for the other car would have been for the jury to determine, the contributory negligence of plaintiff was such as to defeat a recovery for the injury. Chunn v. City & Suburban Ry., 23 App. D. C. 551; 32 W. L. R. 344. Reversed in 207 U. S. 302. In an action against a municipality to recover for personal injuries received through the fall of a wire cable used in the construction of a sewer in the public street, the question of plaintiff's contributory negligence was properly submitted to the jury where the evidence showed that he had stopped while passing under the cable to adjust a barrel of lime on his wagon to prevent its falling therefrom; that he might have avoided passing under the cable by waiting for some wagons to get out of his way, and that while he saw the cable there was no evidence that he knew of the unsafe and dangerous condition of the supporting towers. Dis. of Co. V. Whipps, 17 App. D. C. 415 ; 29 W. L. R. 58. One who on alighting from a street car, passes in the rear thereof and in attempting to cross an adjacent track is struck by a car coming in the opposite direction at a point where the view of the track on which such car was running was unobstructed for several hundred yards, is guilty of contributory negligence per se precluding recovery, notwith- standing she testified that she looked for but saw no car. Harten v. Brighiwood Ry. Co., 18 App. D. C. 260 ; 29 W. L. R. 500. XIII. Proximate Cause. The negligence of one who carelessly places herself in a position exposed to danger can not, as matter of law, be said to be the proximate cause of an injury, if her negligence was discovered in time to avoid the injury by NsGLKiENCiE. 693 the use of reasonable care, and such care was not exercised. Chunn v. City & Sub. Ry. Co., 207 U. S. 302; 36 W. L. R. 20; reversing 23 App. D. C. 551. Where, by the negligence of a carrier a party having heart disease so far developed that in its natural course it will cause his death, is so in- jured that the inevitable final result of the disease is brought about or necessarily hastened, the wrongful act of the carrier is the proximate cause of death. Guenther v. Metropolitan R. R. Co., 23 App. D. C. 493 ; 32 W. L. R. 422. The rule that a plaintiff guilty of contributory negligence may recover where the defendant knew or, from the circumstances, must be supposed to have known of the exposed situation of the plaintiff, and its negligence was the proximate or immediate cause of the injury, cannot be so ex- tended as to hold that it need not have knowledge of plaintiff's exposed situation and that it is sufficient if with reasonable diligence it could have had that knowledge. Cullen v. Balto. & Pot. R. R. Co., 8 App. D. C. 69 ; 24 W. L. R. 130. The contributory negligence of a person injured will not defeat a re- covery if the defendant by reasonable care and prudence might have avoided the consequence of such contributory negligence. Hawley v. Columbia Ry. Co., 25 App. D. C. 1 ; 33 W. L. R. 150. While no recovery can be had where the negligence of both parties has concurred in producing an injury, yet if one, knowing the situation and consequent danger of the other, might by the exercise of reasonable care under the circumstances have prevented the injury, he is liable. Metro- politan R. R. Co. V. Snashall, 3 App. D. C. 420; 22 W. L. R. 377. XIV. Concurrent and Joint Negligence. Where a person suffers an injury from the joint or concurrent negli- gence of two parties, the negligence of both contributing to the injury, they are liable jointly and severally, and no mere comparative degree of care or of culpability, will affect the liability of either. Wash. & G. R. R. Co. V. Hickey, 5 App. D. C. 436 ; 23 W. L. R. 177. Where a person, riding in a public conveyance, is injured through the joint negligence of the driver of the conveyance and the servants of a railroad company, and there is conflict in the testimony as to whether at the time of the injury, he was exercising any control over the conduct of the driver other than to give directions as to destination, the question is one for the jury. Balto. & O. R. R. Co. v. Adams, 10 App. D. C. 97; 25 W. L. R. 167. One cannot escape the consequences of his own negligence merely be- cause another person, with whom he has no connection, or over whom he has no control, may have contributed to the injury by a wrongful or negli- gent act. Metropolitan R. R. Co. v. Jones, 1 App. D. C. 200; 21 W. L. R. 646. One who has been guilty of contributory negligence but seeks to escape the consequences thereof on the ground that the injury complained of was caused by the recklessness and wilful negligence of another, must show that such other had actual knowledge of the injured party's danger and could have avoided the injury by the exercise of ordinary care and pru- 694 Negligence. dence. Richmond & D. R. R. Co. v. Didzoneit, 1 App. D. C. 482; 21 W. L. R. 834. In an action against two railroad companies to recover for an injury- alleged to have been caused by the concurrent negligence of both, it is not error for the court to instruct the jury that in finding for the plaintiff they might find against both or either one of the defendants, as they might find the evidence to justify. Wash. & G. R. R. Co. v. Hickey, 12 App. D. C. 269; 36 W. L. R. 198. XV. -Actions, Right to and Where Maintainable. Where the next of kin of a person whose death has been caused by the wrongful act, neglect or default of another is his father, an action may be brought under the act of Feb. 17, 1885 (Code D. C, §§ 1301-1303), by the administrator of the decedent, to recover damages for the benefit of the father. U. S. Electric Co. v. Sullivan, 33 App. D. C. 115; 31 W. L. R. 406. It is not necessary to the maintenance of an action for wrongful death by the personal representative of deceased, under the act of Congress of Feb. 17, 1885, that the next of kin shall have a legal claim on the services of deceased. lb. As to maintenance in courts of District of action to recover for negli- gent injury causing death in the State of Maryland. See lb. A negligent act causing death is in itself a tort; and actions to recover damages for torts are not local but transitory, and can, as a general rule, be maintained wherever the wrongdoer can be found. Stewart v. Balto. & O. R. R. Co., 168 U. S. 445 ; reversing 6 App. D. C. 46. Where a gas company is under a contract duty to the municipality to maintain a water meter upon its premises in good condition, so that agents of the municipality might with reasonable safety approach and inspect it, an inspector of meters, injured by an explosion of gas while performing his duties in respect of such meter may maintain an action for negligence against such company. Gas Light Co. v. Bckloff, 4 App. D. C. 174; 23 W. L. R. 656. XVI. Recovery. In an action for personal injury to a child of 7 years, resulting in the loss of a leg, the jury held properly instructed they might take into con- sideration in awarding damages the pecuniary loss directly resulting from the injury which they may find from the evidence he is reasonably likely to sustain hereafter in consequence of his being deprived of one of his legs. McDermott v. Severe, 25 App. D. C. 276; 33 W. L. R. 226. As to damages recoverable by father for the negligent killing of his minor child. See Smith v. Davis, 22 App. D. C. 318; 31 W. L. R. 475. In actions for personal injuries the plaintiff is entitled to recover com- pensation, as far as it is susceptible of estimate in money, for the loss and damage caused by the defendant's negligence, including not only suras expended for medical attendance and a reasonable sum for pain and suffering, but also a fair recompense for the loss of what he would other- wise have earned in trade or business and has been deprived of the capacity of earning by the wrongful act of defendant. Wash. & G. R. R^ Co. V. Patterson, 9 App. D. C. 423 ; 25 W. L. R. 36. NEGLldfiNCS. 69S Where the injury complained of is expressly alleged in the declaration to be permanent, though afterwards, under a videlicet, alleged to continue to the time of bringing suit, the latter allegation is nugatory as being con- trary to and inconsistent with what preceded it; and plaintiff will not be restricted in recovery to damages to the time of bringing suit, but may recover as for a permanent injury, if the jury find that he has sustained such injury. lb. In an action to recover damages for death by wrongful act, brought by the administrator of decedent, a minor, for the benefit of decedent's father as next of kin, a finding for plaintifi should be for such sum as would fairly and reasonably compensate the father of decedent for any financial loss sustained by reason of decedent's death, such loss to be measured by such sum as the evidence may show the father would prob- ably have received from decedent had he continued to live. U. S. Electric Co. V. Sullivan, 23 App. ,D. C. 115 ; 31 W. L. R. 406. In an action to recover for death by wrongful act brought for the benefit of the father of decedent the recovery is not limited to such sum as the father might reasonably, have expected to receive from decedent during the residue of his minority had he continued to live. lb. An instruction in a personal injury case that the jury in finding for the plaintiff should award such damages, within the limits of the sum claimed in the declaration, as will fairly and reasonably compensate him for the injuries suffered, is not erroneous as suggestive of excessive damages ; especially where the verdict returned is for much less than the sum claimed. Wash. & G. R. R. Co. v. Hickey, 5 App. D. C. 436; 23 W. L. R. 177. As to measure of damages for death by wrongful act. See Balto. & Pot. R. R Co. V. Golway, 6 App. D. C. 143 ; 23 W. L. R. 308. Mental suffering as element of damages. See Wash. & G. R. R. Co. v. Dashiell, 7 App. D. C. 507 ; 24 W. L. R. 40. XVII. Pleading. Where the declaration in an action against the District of Columbia and two corporations, for injuries caused by the fall of a telegraph pole, to one using a public street, alleges in one count that the pole was owned jointly by the three defendants and each had a duty in respect thereof, and by another count alleges that the pole was owned by one of the de- fendants and was used and maintained by the other two and each had a duty in respect thereof, held sufficient to charge the defendants as joint tort feasors, with a joint and several liability; and the jury might find a different verdict in the case of each defendant. District of Columbia v. Boiling, 4 App. D. C. 397 ; 22 W. L. R. 753. In actions to recover damages for injuries caused by negligence the declaration must allege and show sufficient facts on which a duty is founded which it is incumbent on defendant to perform in respect to the rights and safety of plaintiff. Hines v. Gas Company, 3 App. D. C. 369; 22 W. L. R. 365. The declaration in an action against a gas company for injury to an employe caused by its negligence, after stating the business of defendant and the relation of plaintiff to it, alleged that defendant, knowing the 696 Nbgligbnce. noxious and dangerous quality of the gas, directed plaintiff to enter a trench where it was changing some of its pipes; that while engaged in such work it was defendant's duty to shut off the gas, but that it failed to do so, in consequence of which plaintiff, not knowing of defendant's negligence, and while himself exercising reasonable care and precaution, inhaled the gas and was injured. Held, that the declaration stated a cause of action, and that it was not necessary that it allege that plaintiff was ignorant of the danger and that he was not guilty of contributory negligence. lb. XVIII. Evidence. In an action to recover for wrongful death brought for the benefit of the father of decedent, evidence on behalf of the plaintiff tending to show the age, feeble health, burdens, and poverty of the father, held properly admitted as affording some aid to the jury in determining the reasonable probability of the continuance of the contributions of the deceased, shown ty the evidence to have been made by him prior to his death, during the life of the father. U. S. Electric Co. v. Sullivan, 22 App. D. C. 115; 31 W. L. R. 406. In an action to recover damages for personal injuries caused by negli- gence, it is incumbent upon the defendant, as a matter of defense, to es- tablish the contributory negligence of plaintiff, unless it is shown in the evidence of plaintiff. Balto. & Pot. R. R. Co. v. Webster, 6 App. D. C. 182; 23 W. L. R. 333. When statements made by plaintiff at the tnne of an accident which are at variance with her testimony at the trial of her action for personal injuries, are to be considered with a view to her condition when making them. See Columbia Ry. Co. v. Cruit, 20 App. D. C. 521; 30 W. L. R- 776; City & Suburban Ry. v. Svedborg, 30 App. D. C. 543; 30 W. L. R. 833. In an action against a municipality for injuries alleged to have been caused by a defect in a sidewalk, evidence that subsequent to the injury the sidewalk was repaired is not admissible for the purpose of showing negligence on the part of defendant in respect of the condition of the sidewalk at the time of the happening of the injury. Scott v. Dis. of Col., 37 App. D. C. 413 ; 34 W. L. R. 430. In an action against the municipality for personal injuries caused by an alleged defective sewer trap, the refusal by the trial court of an offer by the plaintiff to prove by a witness produced by him that the witness had examined the cover of the trap in question four days after the accident and found it defective and worn, "and to establish by said witness its con- dition at the time of and before the accident by proving what its condition was a week afterward," luld not reversible error. Bissell v. Dis. of Col, 38 App. D. C: 38 ; 34 W. L. R. 544. In an action for personal injuries alleged to have been caused by de- fendant's negligence, it is ordinarily improper to show that, in case of a recovery, defendant is insured against loss on account of such negligence. Holtzman v. Capital Construction Co., 33 W. L. R. 531. In an action against a railroad company for damages for injuries al- leged to have been caused by negligence in the too narrow construction of Negligence. 697 a bridge on its line, evidence by plaintiff as to the width of bridges on another line of railroad held properly excluded. Weaver v. Balto. &• Ohio R. R. Co., 3 App. D. C. 436 ; 23 W. L. R. 393. Where an inspector of water meters, while in a pit on the premises of a gas company for the purpose of inspecting a meter there situated, was injured by an explosion of gas, the fact that gas was found accumulated in the pit is not prima facie evidence of the company's negligence; and the burden of proving negligence is on the party injured. Gas Light Co. V. Bckloif, 4 App. D. C. 174; 33 W. L. R. 656. As to admissibility of evidence in action for personal injuries resulting from accident to street railway car. See Kight v. Metropolitan R. R. Co., 31 App. D. C. 494; 31 W. L. R. 302. XIX. Presumptions. A presumption of negligence arises where an injury is occasioned by the breaking down of a wheel of one of the cars of the train. Chesapeake & Ohio Ry. Co. v. Howard, 14 App. D. C. 262 ; 27 W. L. R. 146. When an injury occurs to a passenger on a railroad through accident to the means of transportation which could ncrt ordinarily happen if the railroad's employes exercised ordinary care, it affords reasonable evidence, in the absence of explanation, from which negligence on the part of the carrier may be inferred. Weaver v. Balto. & Ohio R. R. Co., 3 App. D. C. 436 ; 23 W. L. R. 393. ' The rule of presumption of res ipsa loquitur is only applied where there is an absence of positive proof of any definite act of negligence, or want of skill, although the accident itself is of an unusual and extraordinary character and one not likely to occur without such cause. Kight v. Met- ropolitan R. R. Co., 21 App. D. C. 494 ; 31 W. L. R. 303. It is not the injury, but the manner and circumstances of the injury that justify the application of the maxim of res ipsa loquitur and infer- ence of negligence. Kohner v. Traction Co., 33 App. D. C. 181 ; 31 W. L. R. 443. Where it is shown on behalf of a plaintiff, in an action for personal injuries, that while riding as a passenger on one of defendant's street cars he was injured by the violent contact of the right hand of the con- ductor of the car with the plaintiff's face, lacerating and bruising his nose and right eye, the doctrine of res ipsa loquitur applies, and the defendant has the burden of showing that there was no negligence on its part, and that the injury was the result of unavoidable accident. lb. Where the presumption of res ipsa loquitur arises the onus of explana- tion is on the defendant. Kight v. Metropolitan R. R. Co., 31 App. D. C. 494; 31 W. L. R. 303. Negligence cannot be inferred from the mere fact of injury. Stearman V. Balto. & 0. R. R. Co., 6 App. D. C. 46 ; 33 W. L. R. 216. No presumption of negligence on the part of a street railway com- pany can arise from the mere happening of an accident caused by the severe lurch of the car as it rounded a curve, where it is not shown that the lurch was an extraordinary and unusual one, or attributable to a defect in the track or the dangerous speed of the car, or the unskillful 698 Negugkncb;. handling of the car by those in charge. Adams v. Wash. & G. R. R. Co., 9 App. D. C. 26; 24 W. L. R. 364. While. a railway mail clerk is considered a passenger, the mere fact of his being killed while en route by striking his head against a bridge post while catching a mail bag, will not raise a presumption of negligence on the part of the railroad. Weaver v. Balto. & Ohio R. R. Co., 3 App. D. C. 436; 22 W. L. R. 393. Where a passenger, in attempting to pass along the footboard of a car to the rear platform while the car was in motion, was injured by being struck by a car coming from the opposite direction on another track, and the evidence showed that the two tracks were distant from each other the space required by law, and there was no evidence of any defect either in the tracks or in the cars causing them to lurch and come closer together than usual, held that no presumption of negligence on the part of the defendant could arise from the happening of the accident, nor of con- tributory negligence on the part of the plaintiff. Harbison v. Met. R. R. Co., 9 App. D. C. 60; 24 W. L. R. 438. Where a passenger on a street railway remained on the back platform of the car because of its crowded condition inside, and was thrown from the car when it rounded a curve, there is no presumption of negligence on the part of the company from the mere happening of the accident, nor on the part of the passenger because of the fall; but the existence of negli- gence and contributory negligence depends upon the facts and circum- stances surrounding the accident and illustrating its cause. Metropolitan R. R. Co. V. Snashall, 3 App. D. C. 420 ; 22 W. L. R. 377. In an action against a street railway company for wrongful death of a passenger struck by a passing car which approached within a few inches of the car in which the passenger was seated, a requested instruction, that if the jury found the deceased had been in the habit of passing over de- fendant's road at the place of the accident that would justify an inference that he had knowledge of the space between the cars, was properly refused. Georgetown & Tennallytown Ry. Co. v. Smith, 25 App. D. C. 259 ; 33 W. L. R. 261. In the case of a Pullman car porter injured in an a railroad accident there is no presumption of negligence on the part of the railroad from the fact of the accident, but the burden is upon him to show affirmatively that his injury was occasioned by the want of the exercise of ordinary, reasonable care by the railroad or its servants. Hughson v. Richmond & D. R. R. Co., 2 App. D. C. 98 ; 22 W. L. R. 55. Where in an action for personal injuries the undisputed evidence shows, or if the jury can from conflicting evidence fairly find, that without con- tributory negligence on the part of the plaintiff, the defendant's neglect of the duty imposed by a police regulation directly resulted in or was the proximate cause of the injury to plaintiff, negligence on the part of the defendant exists as a matter of law. Clements v. Potomac Electric Power Co., 26 App. D. C. 482 ; 34 W. L. R. 158. Where a municipal regulation requires that all high-voltage electric wires be thoroughly insulated, a member of the public is entitled to the protec- tion which would be afforded by a compliance with the regulation, and NsGUGENdE. 699 has the right to presume it had been complied with or that the wires were not used to convey a dangerous current. lb. An allegation in a declaration, for personal injuries, that plaintiff re- ceived the injuries while in the exercise of ordinary care, and that she was not guilty of any. carelessness or negligence in causing the injury, does not require her to produce affirmative proof in support of such alle- gation; but the natural instinct of self-preservation will stand in the place of positive evidence in support of the allegation until overcome by proof of contributory negligence furnished by defendant or that may be gathered from the evidence on behalf of the plaintiff. Atchison v. Wills, 31 App. D. C. 548; 31 W. L. R. 311. In an action to recover for the death of one killed at a railroad cross- ing, held that the court properly instructed the jury that they had a right to presume that deceased looked and listened for approaching trains before stepping on or dangerously near the tracks, but that such presump- tion might be rebutted by facts and circumstances from which the contrary could reasonably be inferred. Balto. & Pot. R. R. C. v. Landrigan, 20 App. D. C. 135 ; 30 W. L. R. 595. XX. Burden of Proof. The onus of proof is upon the plaintiff in action for personal injuries to establish his case by proof of defendant's negligence and the injury re- sulting therefrom ; and if there be circumstances convicting him of con- tributory negligence the defendant must prove them and thus defeat the action. Atchison v. Wills, 21 App. D. C. 548; 31 W. L. R. 311. An allegation in the declaration in an action for personal injuries, that the injury complained of was occasioned by the gross and wanton negli- gence of the defendant's employes, does not impose upon the plaintiff any other or greater burden of proof than to show that the employes of the defendant did not use the care that was required to avoid the acci- dent. /&. While in an action by a passenger for an injury received while being carried by a defendant carrier, the burden of proof of negligence on the part of defendant, as the cause of the injury, is upon the plaintiff, this burden is changed by showing that the accident causing the injury oc- curred while the plaintiff was a passenger; and the burden of proof is then cast upon the defendant to explain the cause of the accident, and to show, if that be the defense, that the negligence of the plaintiff caused, or contributed to the production of the injury. City & Suburban Ry. Co. V. Svedborg, 20 App. D. C. 543 ; 30 W. L. R. 823. A passenger injured while riding on the platform or running board of a street car must, in order to recover, show affirmatively that the accident was caused, in whole or in part, by the negligence of the carrier. Har- bison V. Met. R. R. Co., 9 App. D.C. 60; 34 W. L. R. 438. If by reason of the unsafe condition of a market premises an injury to a patron is sustained without fault on his part, the onus is upon the market company to show that it could not, by the exercise of reasonable care by those for whose acts and omissions it is liable, have prevented the accident. Washington Market Co. v. Clagett, 19 App. D. C. 13; 29 W. L. R. 807. yoo Negligence. Burden of proving negligence on part of master where servant is in- jured while working with appliances provided for his use. Butler v. Frazee, 25 App. D. C. 393; 33 W. L. R. 387. XXI. Province of Court and Jury. As a general proposition, a question of negligence is a question of fact, and must be submitted to the jury. Washington, A. & Mt, V. Ry. Co. v. Chapman, 26 App. D. C. 472; 34 W. L. R. 30. The question of negligence is one of law for the court where but one and must be submitted to the jury. Washington, A. &■ Mt. V. Ry. Co., v. Moulton, 183 U. S. 576; reversing 15 App. D. C. 363. It is only where the facts are such that all reasonable men must draw the same conclusion from them, that the question of negligence or con- tributory negligence is considered one of law for the court. Balto. &• Pot. R. R. Co. V. Landrigan, 20 App. D. C. 135; 30 W. L. R. 595; U. S. Electric Co. v. Sullivan, 22 App. D. C. 115 ; 31 W. L. R. 406. It is only where the question of contributory negligence is of the most unmistakable character that a trial court is justified in directing a verdict for defendant. Cowen v. Merriman, 17 App. D. C. 186; 28 W. L. R. 814. When question of negligence for court and when for jury. See Balto. & Pot. R. R. Co. V. Golway, 6 App. D. C. 143; 23 W. L. R. 308; Burch V. Balto. &■ Pot. R. R. Co., 3 App. D. C. 346 ; 23 W. L. R. 401 ; Wash. Gas Light Co. V. Poore, 3 App. D. C. 127; 22 W. L. R. 249; Metropolitan R. R. Co. V. Snashall, 3 App. D. C. 430; 22 W. L. R. 377; Howes v. Dis. of Col., 2 App. D. C. 188 ; 23 W. L. R. 41 ; Ward v. Dis. of Col., 34 App. D. C. 534 ; 33 W. L. R. 71. Where there is uncertainty as to the existence of either negligence or contributory negligence, the question is one of fact, tor the jury to determine ; and this, whether the uncertainty arises from a conflict in the testimony or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them. Met. R. R. Co. v. Hammeti, 13 App. D. C. 370; 36 W. L. R. 763. Where there is no evidence tending to show negligence on the part of a plaintiff in an action for personal injuries, it is error to submit the question of her negligence to the jury. O'Dwyer v. Market Co., 36 W. L. R. 50. Whether or not testimony of defendant in an action for personal injuries is sufficient in law to rebut a presumption of negligence raised by plaintiff's proof, the question of its truth is for the jury and it is error for the court to direct a verdict for the defendant. Kohner v. Traction Co., 33 App. D. C. 181; 31 W. L. R. 443. Where a person having knowledge of the passage of trains is found dead at a railroad crossing and the evidence is conflicting as to whether he was killed by a regular train or by a runaway car of which he had no knowledge, the question is for the jury, with instructions that if he was killed by the regular train the verdict should be for defendant. Balto. & Pot. R. R. Co. V. Landrigan, 191 U. S. 461; 31 W. L. R. 809. Where, in an action for negligently causing the death of plaintiff's in- testate, the evidence for plaintiff was sufficient to warrant the inference NegIvIGEnce. 701 that the injuries were the proximate cause of his death, and the defendant sought to prove that death resulted from an intervening, independent cause, viz., heart disease, without which it would not have occurred, the question was for the jury, and the direction of a verdict for defendant was error. Guenther v. Metropolitan R. R. Co., 23 App. D. C. 493; 32 W. L. R. 422. In an action to recover damages for injuries received by the plaintiff, while riding a bicycle along one of the streets of the city, from the fall of a tree being removed by the District authorities, the questions of the negligence of the defendant and the contributory negligence of the plaintiff were for the jury. Ward v. Dis. of Col., 24 App. D. C. 524; 33 W. L. R. 71. M., under a contract with the District of Columbia, was engaged in constructing a sewer along and under certain streets, on one of which was a street railway, and in so doing had erected a certain obstruction in close proximity to the railway tracks. Plaintiff was a passenger on one of the cars, and the car being crowded was with other persons riding on the foot-board. In passing the place of the obstruction, which con- sisted of a post with a projecting plank attached, erected as a barrier, it caught in his coat, pulling him from the car and injuring him. It ap- peared that the erection causing the injury had existed for a length of time sufficient to charge the municipal authorities with notice, and also that the railroad company, with knowledge of its close proximity to its tracks, had yet allowed passengers to ride on the foot-board of the car. In an action against the District, the contractor, and the railway com- pany, held that the question of defendants' negligence and of plaintiff's contributory negligence was for the jury, and a verdict for defendants was improperly directed. Koonts v. Dis. of Col, 24 App. D. C. 59 ; 32 W. L. R. 390. XXII. In General. Negligence superimposed upon negligence does not amount to wil- fulness ; nor is the failure, superinduced by negligence, to have knowledge of a dangerous condition, the equivalent of actual knowledge of such con- dition. Richmond & D. Ry. Co. v. Didsoneit, 1 App. D. C. 482 ; Stearman V. Balto. & R. R. Co., 6 App. D. C. 46 ; 23 W. L. R. 216. An insurance broker who negligently failed to obtain from insurers va- cancy permits, the required premium for which had been paid him by the policy holder, is liable to such policy holder for loss occasioned thereby. Bmery v. Lord, 29 App. D. C. 589 ; 35 W. L- R. 453. As to liability of insurance broker for loss resulting from his negli- gence in not exercising proper care in the placing of insurance. See Mal- kry V. Frye, 21 App. D. C. 105 ; 31 W. L. R. 63. As to liability of telegraph company for negligent transmission of mes- sage whereby figures are misquoted. See Ferrero v. Telegraph Co., 9 App. D. C. 455 ; 24 W. L. R. 790. The lessees of a wharf, negligently allowing a fixed rock to exist in a berth assigned to a vessel, in consequence whereof the vessel was in- jured and sunk in receiving her cargo, will be liable to the owner in dam- 702 Negotiable Instruments — Newspapers. ages, even though they had no actual notice of the existence of the rock. Smith V. Burnett, 10 App. D. C. 469 ; 25 W. L. R. 247. The evidence in an action for damages resulting from earth placed by defendant in filling up ravines in his land escaping therefrom and being deposited upon plaintiff's sand beds examined and held that the question of defendant's negligence was properly submitted to the jury. American Sec. & Trust Co. v. Lyons, 21 App. D. C. 122 ; 31 W. L. R. 113. As to effect on liability of railroad for negligence of fact that lease under which it was operating the road on which the injury occurred is void. See Chesapeake & Ohio Ry. Co. v. Howard, 14 App. D. C. 262; 27 W. L. R. 146. Liability as common carrier of company engaged in supplying messenger service. White v. Postal Telegraph & C. Co., 25 App. D. C. 364; 33 W. L. R. 295. Of municipal corporation as to regulation of construction and mainte- nance of street railway. Smith v. Dis. of Col., 25 App. D. C. 370; 33 W. L. R. 418. As to liability of municipal corporation for negligence of independent contractor. See Koontz v. Dis. of Col, 24 App. D. C. 59; 32 W. L. R. 390. As to negligence of municipality in respect of sidewalks. See Dis. of Col. V. Payne, 13 App. D. C. 500; 27 W. L. R. 24. As to sufficiency of a general exception to a charge covering a number of the elements of damages. See McDermott v. Severe, 202 U. S. 600; 34 W. L. R. 577. As to power of probate court to grant letters of administration for purposes of action for wrongful death. See Western Union Tel. Co. v. Lipscomb, 22 App. D. C. 104; 31 W. L. R- 422. In use of property. See American Sec. & Trust. Co. v. Lyons, 21 App. D. C. 122 ; 31 W. L. R. 112. See also Damages; Evidence; Fellow Servants; Master and Serv- ant; Municipal Corporations; Railroads; Streets and Sidewalks. NEGOTIABLE INSTRUMENTS. See Bills and Notes. NEW CAUSE OF ACTION. Effect of amendment of declaration as a statement of a new cause of action. See Dis. of Col. v. Praser, 21 App. D. C. 154. NEWLY DISCOVERED EVIDENCE. As to right to introduce under bill of review. See Osborne v. David- son Mortgage Co., 8 App. D. C. 481 ; 24 W. L. R. 313. NEW MATTER. See Evidence. NEW PROMISE. Evidence of a new promise may be given under the general issue joined on a plea of the statute of limitations. Pumphrey v. Bogan, 8 App. D. C. 449 ; 24 W. L. R. 302. See Evidence; Limitation of Actions. NEWSPAPERS. As to publication of statements of banks and of judicial notices. See Conroy v. Carroll, 34 W, L. R, 517, New Trial. 703 Publications constituting libel. See Washington Post Co. v. Wells, 37 App. D. C. 495; 34 W. L. R. 418; Wash. Times Co. v. Downey, 36 App. D. C. 358 ; 33 W. L. R. TTO. As to what constitutes doing business in the District of Columbia by a foreign newspaper corporation for purposes of service of process. See Ricketts V. Sun Printing & Pub. Co., 37 App. D. C. 332 ; 34 W. L. R. 387. See Libel. NEW TRIAL. The setting aside of a verdict and granting a new trial is within the sound discretion of the trial court and its exercise of such discretion will not be disturbed on appeal unless it clearly appears that the bounds of such discretion were exceeded. Woods v. Richmond & D. R. Co., 1 App. D. C. 165; 21 W. L. R. 635; Keely v. Moore, 23 App. D. C. 9; 31 W. L. R. 339. The action of a trial court in granting or refusing a new trial is not reviewable. Columbia Ry. Co. v. Cruit, 20 App. D. C. 531; 30 W. L. R. 776; West v. United States, 20 App. D. C. 347; 30 W. L. R. 582; Price V. United States, 14 App. D. C. 391 ; 37 W. L. R. 330 ; Paolucci v. United States, 36 W. L. -R. 3 ; Brown v. Bradley, 6 App. D. C. 307 ; 33 W. L. R. 293 ; Thomas v. Presbrey, 5 App. D. C. 317 ; 33 W. L. R. 133 ; Dis. of Col. V. Wilcox, 4 App. D. C. 90; 22 W. L. R. 623. As to power of Court of Appeals to review rulings of trial courts on motions for new trial, in cases transferred from the General Term under the act of 1893. See Evans v. Schoonmaher, 3 App. D. C. 63 ; 22 W. L. R. 78. The refusal of a motion for a new trial based on alleged misconduct of jury will not be disturbed on appeal where the trial court, after a lengthy and searching investigation, decided that the charge of misconduct was not proved. Keely v. Moore, 22 App. D. C. 9 ; 31 W. L. R. 339. Where parties fail to agree upon a bill of exceptions the trial court has power under rule 56 to set aside the verdict and grant a new trial. Evans V. Humphreys, 9 App. D. C. 392; 24 W. L. R. 782. The Supreme Court of the District has jurisdiction to entertain a mo- tion to set aside a verdict and award a new trial on the ground that the verdict is against the weight of the evidence. Rapp v. Wash. & G. R. R. Co., 36 W. L. R. 310. On a motion to set aside a verdict and award a new trial on the ground that the verdict is against the weight of the evidence, the court must consider and weigh the evidence according to legal rules, for the purpose of determining on which side the weight is, and if against the verdict, whether so decidedly so as to show that the jury could not have weighed it, but must have forgotten or disregarded some of it, or was misled by mistaken views of the rules applicable in the weighing of it, or were actuated or controlled by bias or prejudice. lb. Sec. 919 of the Code does not affect the discretionary power of a trial court in respect of the granting of a new trial, other than to limit, per- haps, the power to do so. Paolucci v. United States, 36 W. L. R. 3. A trial court will not be bound to set aside a verdict of guilty in a murder cas? apd grant a new trial because a juror may haye, some 704 "Next Friend" — Non-Residents. months before the trial, expressed strong prejudice against Italians, to which nationality defendant belonged, where the juror, when examined on his voir dire, disclaimed any such prejudice. lb. A motion for a new trial suspends the entry of judgment until the motion is disposed of. Walter v. Balto. & O. R. R. Co., 6 App. D. C. 20; 23 W. L. R. 226. A judgment on appeal from a justice of the peace may be set aside and a new trial granted Ex parte Huntt, 10 App. D. C. 275 ; 25 W. L. R. 84. As to power of justice of the peace to set aside verdict of jury and grant new trial. See Bright-wood Ry. Co. v. O'Neal, 10 App. D. C. 205; 25 W. L. R. 98. Waiver, by defendant, of right to insist upon incompetency of evidence as ground for new trial. Holtzman v. Capital Construction Co., 33 W. L. R. 531. Analogy of motion to vacate judgment on ground of newly discovered evidence. Hill v. United States, 22 App. D. C. 395 ; 31 W. L. R. 552. New trial granted in action for libel on ground of excessiveness of ver- dict. See Seawall v. A. S. Abell Co., 34 W. L. R. 195. "NEXT FRIEND." As to who may act as. See Mackey v. Peters, 22 App. D. C. 341 ; 31 W. L. R. 505. NON-JOINDER OF PARTIES. See Actions. NON-RESIDENTS. Where a bill of complaint recites that the complainant is a resident of the State of Minnesota, but temporarily located and for ten years residing in this District, he is to be regarded as a non-resident of this District, within the meaning of § 175, Code D. C, requiring non-residents to give security for costs. Bottineau v. O'Grady, 34 W. L. R. 148. As to what constitutes a non-resident within the meaning of the attach- ment laws. See Robinson v. Morrison, 2 App. D. C. 105 ; 22 W. L. R. 35. Status of members of Congress for purposes of attachment. See Howard v. Citisens' B. & T. Co., 12 App. D. C. 222; 26 W. L. R. 101. As to maintenance of action for permanent alimony by non-resident wife against resident husband. See Tolman v. Tolman, 1 App. D. C. 299; 21 W. L. R. 771. May not sue in justices' court without giving security for costs, unless security waived by defendant. Guarantee Sav., L. &■ I. Co. v. Pendleton, 14 App. D. C. 384; 27 W. L. R. 233. The statutory requirement that a non-resident shall, before commencing suit, give security for costs, may be waived by the defendant, and is in fact waived by a general appearance by the defendant for the purpose of procuring a continuance of the cause. Costello v. Palmer, 20 App. D. C. 210 ; 30 W. L. R. 402. A trial of right of property under §§ 23-26 of act of Congress of Feb. 19, 1895, is not a suit within meaning of § 1002 R. S. D. C, requiring non- residents to give security for costs before commencing suit. Bond V. Carter Hardware Co,, 15 App, D. C- 72 ; 27 W, L. R, 462, Non-Suit — Notaries Public. 705 ,As to security for costs to be given by, in justice's court and on appeal. See Hayward v. Tschiifely, 32 W. L. R. 777. Creditor's bill against a non-resident may be maintained without first reducing claim to judgment, where bill alleges that defendant has no property subject to legal execution. Supplee Hardware Co. v. Driggs, 13 App. D. C. 372 ; 26 W. L. R. 658. As to action by defendant in a suit by a non-resident before a justice of the peace amounting to a waiver of the statutory requirement as to security for costs. See Guarantee Sav., L. & I. Co. v. Pendleton, 14 App. D. C. 384; 37 W. L. R. 333. When administration on estate of, granted. See Estate of Coit, 3 App. D. C. 346; 32 W. L. R. 319. As to power of probate court to grant letters of administration to en- able administrator to maintain action for wrongful death of non-resident. See Western Union Tel. Co. v. Lipscomb, 22 App. D. C. 104; 31 W. L. R. 422. As to effect of the filing of an affidavit by a non-resident to operate as a general appearance in a suit in which he has not been properly served. See Dexter v. Lichliter, 24 App. D. C. 222 ; 32 W. L. R. 733. As to mode of bringing non-resident infant defendants into court and subjecting them to its jurisdiction. See Duncanson v. Manson, 3 App. D. C. 260 ; 33 W. L. R. 331 ; affirmed in 166 U. S. 533. , As to admissibility in evidence, in action at law, of depositions of non- resident witnesses. See Anacostia R. R. Co. v. Klein, 8 App. D. C. 75; 24 W. L. R. 117. Non-residence of party against whom set-off claimed as ground for equi- table relief. See Pitzgerald v. Wiley, 23 App. D. C. 339 ; 31 W. L. R. 491. See Process. NON-SUIT. A plaintiff may elect to take a non-suit at any time before verdict, sub- ject to payment of costs. Bradshaw v. Barnshaw, 11 App. D. C. 495; 25 W. L. R. 809. ' A plaintiff in an action of assumpsit may take a voluntary non-suit after the filing of a plea of set-off, but not so as to prevent the prosecution of the plea. Samaha v. Satnaha, 18 App. D. C. 9 ; 29 W. L. R. 176. See Actions; Practice and Procedure. NORTH CAPITOL STREET. See Constitutional Law ; Condemna- tion OF Land. NOTARIES PUBLIC. A notary public has no right to ask more or less than the fees pre- scribed by law, nor has any person for whom such services are performed the right to require him to render them for less than such fees. Ohio Nat. Bank v. Hopkins, 8 App. D. C. 146 ; 24 W. L. R. 161. A bank owning paper protested or noted for protest is bound to pay the fees prescribed by law for the official service rendered; and where it is a mere collecting agent for its correspondents, it is bound to place the paper in the hands of a competent and careful notary and pay him the lawful fees for his services, and charge the same in account to the cor- respondent for whose benefit the service was rendered. lb. 7o6 NoTicfi. An agreement by a bank and a notary, whereby the latter agreed in consideration of his employment as such officer, to accept one-half of his lawful fees for services, the bank retaining the other half, is void as without valid consideration and as against public policy. lb. An assignment by a public officer of the salary or fees of his office before they are due and payable, is contrary to the public policy and void; and so held as to an agreement between a bank and a notary for the division of fees. lb. Affidavits supporting an attachment may be made before a notary public in another jurisdiction. Hozvard v. Citizens' B. & T. Co., 12 App. D. C. 222; 26 W. L. R. 101. Where an affidavit to support an attachment does not show where made, but the jurat of the officer taking it describes him as "Commissioner of the District of Columbia in Maryland, residing in Baltimore City", the presumption is that it was taken within the jurisdiction of such commis- soner. Matthai v. Conway, 2 App. D. C. 45; 22 W. L- R. 39. The power given notaries by §§ 985, 988, R. S. D. C. to demand pay- ment and protest notes, is not exclusive of pre-existing methods of de- mand and notice. Presbrey v. Thomas, 1 App. D. C. 171 ; 21 W. L. R. 659. An affidavit under the 73d Rule, made before a foreign notary is suf- ficiently authenticated by the signature and seal of such notary. Towers (Hutchins) v. Maneely, 11 App. D. C. 88 ; 25 W. L. R. 487. A notary's certificate of acknowledgment in proper form, will prevail over the unsupported testimony of the party grantor in a deed. Ford v. Ford, 27 App. D. C. 401 ; 34 W. L. R. 435. Sufficiency of certificate of acknowledgment of deed. Ohio National Bank V. Berlin, 26 App. D. C. 218 ; 33 W. L. R. 726. As to force and effect of certificate of acknowledgment. See Ford v. Ford, 27 App. D. C. 401; 34 W. L. R. 435. NOTICE. The knowledge of facts or circumstances reasonably sufficient to put a person of ordinary prudence upon inquiry which, if pursued with proper diligence, would lead to the discovery of the actual condition of the title, is equivalent to knowledge direct and certain. Manogue v. Bryant, 15 App. D. C. 245 ; 27 W. L. R. 478. The general intent of registry acts is to protect innocent persons by providing means of knowing condition of titles, and persons acquiring knowledge by other means do not come within their purview. lb. Having the means of knowledge and negligently remaining ignorant is equivalent, in creating a liability, to actual knowledge. Washington Market Co. v. Clagett, 19 App. D. C. 12 ; 29 W. L. R. 807. Constructive notice, when sufficiently shown, is as effectual as actual notice. Domer v. Dis. of Col, 21 App. D. C. 284 ; 31 W. L. R. 243. Constructive or implied notice affects a transaction in the same manner as actual notice. Security Invest. Co. v. Garrett, 3 App, D. C, 69; 32 W, L. R. 268. A judgment in ejectment can only be rendered against the tenant or real defendant after due service of process and actual nptice to defend; con-> NoTiCB. 707 structive notice by publication is not sufficient. Staffan v. Zeust, 10 App. D. C. 860; 25 W. L. R. 188. By the recordation of an instrument third parties are charged with constructive notice only of what is contained in the record and are not required to go outside of the record to ascertain what are the actual rights of the parties to the instrument. Chisolm v. Cissell, 13 App. D. C. 303; 26 W. L. R. 483. The record of an instrument not permitted by law to be recorded is constructive notice to no one. Clark v. Harmer, 5 App. D. C. 114; 23 W. L. R. 120. Effect of record of mortgage executed by wrongful occupants of land to charge owner with constructive notice thereof. See Armstrong v. Ashley, 22 App. D. C. 368 ; 31 W. L. R. 439 ; affirmed in 304 U. S. 272. Record of deed, the certificate of acknowledgment to which is fatally defective is of no effect as constructive notice. Ohio National Bank v. Berlin, 26 App. D. C. 318 ; 33 W. L. R. 736. Recordation of deed of trust as. See Sis v. Boarman, 11 App. D. C. 116; 25 W. L. R. 431. Recordation of deed as constructive notice. See Lynch v. Murphy, 161 U. S. 247; 24 W. L. R. 456. A purchaser of real estate is chargeable with knowledge of incum- brances of record at the time of his purchase, and his failure to make or cause to be made an examination of the land records will not make him an innocent purchaser for value. Sis v. Boarman, 11 App. D. C. 116 ; 25 W. L. R. 431. A purchaser of real estate must look to the title papers under which he buys and is charged with notice of all the facts appearing upon their face or to the knowledge of which anything there appearing will conduct him. Security Invest. Co. v. Garrett, 3 App. D. C. 69 ; 22 W. L. R. 268. As to circumstances to put a purchaser of real estate upon inquiry and to charge him with notice of fraud of his vendor in the procurement of title. See Godfrey v. Button, 16 App. D. C. 117 ; 38 W. L. R. 171. As to notice to charge mortgage lienors with knowledge of prior in- cumbrance. See Weightman v. Critic Co., 4 App. D. C. 136; 22 W. L. R. 665. On the election of grantees of an option to purchase not to do so, the grantor is entitled to notice of the withdrawal of either of the grantees within the time limited, and the notice must be such as to fasten actual knowledge on the grantor. Clark v. Harmer, 5 App. D. C. 114; 23 W. L. R. 120. A bona £de purchaser for value of property subject to an equitable mortgage, without notice of such mortgage, takes -the property free there- from. Lynch v. Murphy, 161 U. S. 247 ; 34 W. L. R. 456. As to sufficiency of evidence to discharge vendee from charge of notice of vendor's fraud in procurement of title conveyed. See Godfrey v. Button, 27 W. L. R. 50. As to equivalents of notice to purchaser of unfairness of sale. See lb. What necessary to charge purchaser of real estate with notice of ven- dor's fraud in procurement of title. See lb. One claiming to be an innocent purchaser at a sale made in fraud of yo8 Notice;. creditors must have had no previous notice of vendor's fraudulent intent; the. burden of proving such notice is on the attacking creditors. Morimura V. Samaha, 35 App. D. C. 189 ; 33 W. L. R- 358. Constructive notice of fraud on part of purchaser at sale made in fraud of creditors. /&. As to charge of judgment creditor with notice of a mortgagor's equitable right to have a misdescription of the property mortgaged corrected. See Manogue v. Bryant, 15 App. D. C. 345 ; 37 W. L. R. 478. As to conveyances of which one dealing with land is bound to take notice. See Armstrong v. Ashley, 23 App. D. C. 368; 31 W. L. R. 439; affirmed in 204 U. S. 272. As to knowledge of fraud to put purchaser of goods on inquiry. See Samaha v. Mason, 37 App. D. C. 470; 34 W. L. R. 403. When possession is relied on as giving constructive notice, it must be open and unambiguous and sufficiently distinct and unequivocal as to put the purchaser on his guard. Hayward v. Mayse, 1 App. D. C. 139; 31 W. L. R. 619. As to acts sufficient to put record owner of title or the world in general upon notice of adverse claim or use. See Johnson v. Thomas, 23 App. D. C. 141 ; 33 W. L. R. 69. As to privity of estate requiring notice of claim to property by- adverse possession. See Hooper v. Stuart, 23 App. D. C. 434 ; 32 W. L. R. 281. As to sufficiency of notice of sale under deed of trust. See Crutchfield V. Hewett, 3 App. D. C. 373 ; 33 W. L. R. 127. A feme covert, as to property held by her under the married women's act, is bound to take notice of a conveyance duly recorded. Quirk v. Liebert, 13 App. D. C. 394; 36 W. L. R. 358. Notice to defendant in a judgment of the assignment thereof is not nec- essary to perfect the assignee's right. Hutchinson v. Brown, 8 App. D. C. 157; 24 W. L. R. 219. Where lessor had no actual knowledge of dangerous condition of water box on premises he is not liable to lessee for injury caused by its fall. Howell V. Schneider, 24 App. D. C. 533 ; 33 W. L. R. 83. Liability of landlord having knowledge of dangerous defects in prem- ises which he fails to reveal to tenant who suffers injury thereby. Ih. The rule of notice to make binding the stipulations in contracts of car- riage is not applicable to the case of a person riding upon a free pass. Boering v. Chesapeake Beach R. Co., 193 U. S. 442 ; 33 W. L. R. 195. An unreasonable delay in giving a guarantor notice of the default of the principal, or failure to give any notice, is not a bar to recovery on the guaranty, unless loss is shown to have resulted thereby to the guarantor. Hughes V. Heyman, 4 App. D. C. 444 ; 23 W. L. R. 737. Effect of failure to notify sureties of breach of condition of bond where bond contains no requirement for notice. Clark -v. Gerstley, 26 App. D. C. 205 ; 33 W. L. R. 758. As to notice of dishonor of bills and notes. See Bowie v. Hume, 13 App. D. C. 286; 26 W. L. R. 690. As to effect of knowledge by holder of note that the maker was an ac- commodation maker. See Willard v. Crook, 21 App. D. C. 237; 31 W. L. R.,177. Notice. 709 As to preliminary notice necessary before secondary evidence admissible to prove contents of writing or document shown to have been in posses- sion of opposite party. See Main v. Aukam, 4 App. D. C. 51. As to necessity for notice to produce document sought to be proved by secondary evidence. See lb. As to suffiiciency of publication of issues as to will where party in in- terest cannot be served. Leach v. Burr, 188 U. S. 510; 31 W. L. R. 148. As to notice of application for probate of will. See Dugan v. North- cutt, 7 App. D. C. 351 ; 24 W. L. R. 2. As to notice to be given of mechanics' lien. See Alfred Richards Brick Co. V. Trott, 23 App. D. C. 284; 33 W. L. R. 179; Bmack v. Campbell, 14 App. D. C. 186 ; 27 W. L. R. 314 ; Lefler v. Forsberg, 1 App. D. C. 36 ; 21 W. L. R. 585. As to timeliness of notice of mechanics' lien. See Brown v. Waring, 1 App. D. C. 378; 31 W. L. R. 746; Bmack v. Campbell, 14 App. D. C. 186; 37 W. L. R. 214. A view of an obstruction in a street in time to avoid it is ample notice to travelers of its presence. Dis. of Col. v. Moulton, 182 U. S. 576; re- versing 15 App. D. C. 363. As to charging municipality with notice of defective sewer-trap lid. See Bissell V. Dis. of Col, 28 App. D. C. 38 ; 34 W. L. R. 544. As to right of municipality to notice of obstruction in sewer. See Dis. of Col. V. Gray, 6 App. D. C. 314 ; 23 W. L. R. 340. The District of Columbia is chargeable with constructive notice of a defect in a street; and an instruction to the jury precluding the idea of such notice is properly refused. Dis. of Col. v. Boiling, 4 App. D. C. 397 ; 22 W. L. R. 753. Publicity following accidents caused by a lawful obstruction in a street held to charge the municipality with notice of its dangerous condition. Dis. of Col. V. Duryee, 29 App. D. C. 327 ; 35 W. L. 1r. 354. If a street remains in a dangerous condition so long that the municipal authorities could not help, in the exercise of ordinary care and diligence, knowing that fact, and did not know it because they failed to exercise proper diligence, then the law imputes notice to them. Domer v. Dis. of Col, 21 App. D. C. 384; 31 W. L,. R. 243. As to sufficiency of notice to charge a municipality jointly with a market company with responsibility for the dangerous condition of a sidewalk resulting from the unlawful occupation thereof by hucksters. See O'Dwyer V. Market Co., 36 W. L. R. 50. To charge a municipality with constructive notice of the dangerous condition of a sidewalk, it must appear that the dangerous condition could have been discovered by an inspection of the sidewalk made with ordinary care or that it had been in existence so long that it ought to have been discovered by inspection. Dis. of Col. v. Boswell, 6 App. D. C. 402; 23 W. L. R. 423. As to lapse of time to charge municipality with notice of defective con- diftion of sidewalk. See Dis. of Col v. Payne, 13 App. D. C. 500 ; 27 W. L. R. 34. As to imputation of notice to municipal authorities as to dangerous con- 710 Notice. dition of sidewalk. See Dis. of Col. v. Fraser, 31 App. D. C. 154; 31 W. L. R. 83. Actual notice by market company of unsafe condition of market house held not essential to plaintiff's right to recover for injuries sustained. Washington Market Co. v. Clagett, 19 App. D. C. 13 ; 39 W. L. R. 807. The right to be heard is a fundamental right of every litigant, and in that right the first element is that of notice. Karrick v. Wetmore, 25 App. D. C. 415 ; 33 W. L. R. 435. As to effect of defect in calendaring cause for hearing without notice to defendant. See American Ice Co. v. Eastern Trust &c. Co., 17 App. D. C. 432 ; 39 W. L. R. 55. Effect of want of notice to appellees to show cause against the approval of appeal bond. Alfred Richards Brick Co. v. Rothwell, 18 App. D. C. 516; 39 W. L. R. 687. Defendant entitled to notice of intention to strike out a judgment of dis- missal. Karrick v. Wetmore, 35 App. D. C. 415 ; 33 W. L. R. 435. In the absence of notice required by rule 55 of the Supreme Court of the District, the trial court may refuse to settle a bill of exceptions. Johnson-Wynne Co. v. Wright, 38 App. D. C. 375; 35 W. L. R. 3. Notice to an agent or attorney of a purchaser of real property, employed in any part of the transaction, is notice to the purchaser, although not communicated to him and the importance of the fact not being understood by him. Security Invest. Co. v. Garrett, 3 App. D. C. 69 ; 33 W. L. R. 368. Notice of agent imputed to principal. See Johnson v. Tribby, 27 App. D. C. 381; 34 W. L. R. 318. The knowledge of an attorney held to bind his client. Patten v. Warner, 11 App. D. C. 149; 35 W. L. R. 448. As to what constitutes agent whose knowledge will bind an insurance company as principal. See Hamburg-Bremen Ins. Co. v. Lewis, 4 App. D. C. 66; 35 W. L.*R. 617. As to necessity of giving notice to property owner of intention to assess his property for special improvements. See Dis. of Col. v. Wormley, 15 App. D. C. 58; 37 W. L. R. 383. As to sufficiency of publication in condemnation proceedings. See Wight V. Davidson, 181 U. S. 371, reversing 16 App. D. C. 371. Reasonable notice at some serviceable stage of the proceedings is abso- lutely necessary to the validity of an assessment. Allman v. Dis. of Col., 3 App. D. C. 8; 33 W. L. R. 301. Such notice need not be expressly provided for in the act granting the power to make the improvements, provided the instrumentality is given full discretion in the premises and makes proper provision for such notice. lb. As to sufficiency of notice to validate special assessment. See Jones v. Dis. of Col, 3 App. D. C. 36; 32 W. L. R. 306. As to sufficiency of notice to validate an assessment against owners of land affected by a public improvement. See Davidson v. Wight, 16 App. D. C. 371 ; 38 W. L. R. 303. As to sufficiency of notice to fix liability of owner of abutting property for special water-main tax. See District of Columbia v. Burgdorf, 6 App. D. C. 465 ; 33 W. L. R. 354. Notice op Appeal — Nuisances. 'jii Holder of note secured by deed of trust on property affected by pro- ceedings under the acts of 1892 and 1894, for opening of alley or minor street, not entitled to notice. Martin v. Dis. of Col., 26 App. D. C. 146; 33 W. L. R. 742. Purchasers of real estate subsequent to filing of petition for condemna- tion are charged with notice of lien created thereby. Wilkinson v. Dis. of Col., 22 App. D. C, 289; 31 W. L. R. 507. A jury of condemnation is not required to take notice of conveyances be- tween the time of its impaneling and verdict. Wilkinson v. Dis. of Col., 22 App. D. C. 289; 31 W. L. R. 507. As to necessity for notice of meeting of board of managers of a cor- poration for the purpose of removing the president from office. See Johnson v. Walker, 28 W. L. R. 187. As to sufficiency of notice of lunacy proceedings. See Logue v. Pen- ning, 29 App. D. C. 519; 35 W. L. R. 382. The due prosecution of a judgment creditor's suit is a lis pendens af- fecting with notice all subsequent purchasers or incumbrancers. Weight- man V. Critic Co., 4 App. D. C. 136; 22 W. L. R. 665. As to notice of assessment to which member of beneficial association entitled. See Drum v. Benton, 13 App. D. C. 245 ; 26 W. L. R. 542. As to notice of existence of easement of light and air. See Hutchins V. Munn, 22 App. D. C. 88 ; 31 W. L. R. 344. Timeliness of notice of claim to chattels levied on as property of judg- ment debtor. Brown v. Petersen, 25 App. D. C. 359; 33 W. L. R. 310. See Admiralty ; Appeal and Error ; Deeds ; Indictment and Informa- tion; Justices of the Peace; Patents; Negligence; Recordation. NOTICE OF APPEAL. Effect of entry of on issuance of execution. Byrne v. Morrison, 25 App. D. C. 75 ; 33 W. L. R. 215. As to sufficiency of notice of appeal. See McGowan v. Elroy, 28 App. D. C. 86 ; 34 W. L. R. 455 ; Bundy v. U. S. ex rel. Darling, 25 App. D. C. 459; 33 W. L. R. 434. As to what constitutes notice of an appeal making citation unnecessary. See Leonard v. Rodda, 5 App. D. C. 256 ; 23 W. L. R. 229. As to time to give notice of intention to apply for writ of error to police court. See Tubins v. Dis. of Col, 21 App. D. C. 267; 31 W. L. R. 460. NOTICE TO QUIT. See Landlord and Tenant. NOVELTY. See Patents. NUDUM PACTUM. See Contracts. NUISANCES. In order for a private individual to maintain a bill to restrain a public nuisance, it must clearly appear from the allegations of the bill that the plaintiff will sustain a special and particular injury therefrom, and that such injury is, or will be, irremediable; otherwise equity will not interfere. Dewey Hotel Co. v. U. S. Elec. L. Co., 17 App. D. C. 356; 29 W. L. R. 71. 712 Nuisances. As to liability of railroad for physical discomfort and annoyance oc- casioned a property owner by its use of a public street as a freight yard and for making and breaking up its trains. See Balto. &■ Pot. R. R. Co. V. Fitzgerald, 3 App. D. C. 501 ; 22 W. L. R. 217 ; Same v. Walker, 3 App. D. C. 531; 32 W. L. R. 333. As to right of recovery for injury to land caused by obstruction of ad- joining street by railroad tracks. See Hetzel v. Balto. & O. R. R. Co., 7 App. D. C. 524; 24 W. L. R. 38. ,The nuisance created by the unlawful occupation of public space and thoroughfares by a railroad is a public one to be abated by the public authorities. Johnson v. Balto. &■ Pot. R. R. Co., 4 App D. C. 491; 22 W. L. R. 781. As to whether the act of a railroad company in allowing its cars to stand in a public highway so as to expose those using the highway to danger, is a nuisance. See Balto. & Pot. R. R. Co. v. Webster, 6 App. D. C. 182; 33 W. L. R. 322. A market company which is responsible for the unlawful occupation by vendors of vegetables and fruits, from whom it exacts a rental, of the public sidewalk adjoining its market building, is guilty of maintaining a public nuisance, and is liable for any special damage naturally resulting therefrom regardless of the queston of negligence. O'Dwyer v. Market Co., 36 W. L. R. 50. The occupation by wagons, etc., of a street adjacent to a market, held a nuisance and the owners of such wagons, etc., liable to prosecution in police court. Sanford v. Dis. of Col., 24 App. D. C. 404. The occupation by the owner of an apartment house of a parking space adjacent to his building under a permit from the municipal authorities to enclose the same according to a general parking system, will not con- stitute a nuisance, so as to render the municipality without actual or con- structive notice of a defect in the enclosing fence, liable to damages for injuries caused by such defect. Domer v. Dis. of Col., 21 App. D. C. 284; 31 W. L. R. 343. The piling of lumber for an unreasonable time or in an unreasonable manner upon a street or highway, not authorized by competent legal au- thority, is a nuisance for which the authors of it may be held liable; and the municipal corporation, having ample power to prevent or remove the nuisance, is equally liable with the creator of it for any injury that may result therefrom. Smith v. Davis, 23 App. D. C. 298 ; 31 W. L. R. 473. An unauthorized breaking up of the surface of the street is a pubhc nuisance, which may be enjoined at the instance of the taxpayer and it is not necessary for such taxpayer to prove other than the pecuniary loss and discomfort involved. Potomac Blec. Co. v. U. S. Blec. Co., 26 W. L. R. 19. The construction of a public sewer on private property without con- demnation proceedings constitutes a trespass for which the owner of the property has a right of action ; but such sewer cannot be treated as a continuing nuisance and one recovery will bar all subsequent suits, and must be considered as the equivalent of what would have been awarded in the first instance under condemnation proceedings. Dis. of Col. v. Hutchinson, 1 App. D. C. 403; 21 W. L. R. 780. NuisANces. 713 . Purchasers of lots from the Commissioners of the District sold and conveyed under authority of acts of Congress of March 3, 1881, and April 1, 1883, can not recover as for a nuisance against the District for al- lowing sewage to flow through sewers established at the time of their purchase, nor for the subsequent diversion of the sewage to a different point of discharge. Dis. of Col. v. Cropley, 33 App. D. C. 233; S3 W. L. R. 97. No right of action either at law or in equity can be supported against a party for the reasonable use of his property or the reasonable exercise of his rights over the same, although such rights be enjoyed or exercised in a manner that may occasion annoyance or inconvenience to another. Akers V. Marsh, 19 App. D. C. 28 ; 29 W. L. R. 786. An application to the courts for relief by injunction in case of a nuisance alleged to arise by the manner in which the defendant uses or enjoys her property can only be maintained for a plain and substantial invasion of the legal rights of the complainant. There is no such thing as an equitable nuisance; and the complainant, before he can ask for relief by injunction, must prove that he has sustained such a substantial injury by the acts of defendant as would have entitled him to a verdict in an action at law. lb. In an application for relief by injunction where the ground of complaint is that of an alleged nuisance created by noise, smoke, odor, and light, the question is one of degree as well as of locality; and the question in all such cases is, whether the nuisance complained of -will or does cause such a condition of things as, in the judgment of reasonable men, is naturally productive of physical discomfort to persons of ordinary sen- sibilites, tastes and habits, and is unreasonable and in derogation of the rights of complainant. lb. Complainants sued to enjoin the frequent playing of the game of croquet from nightfall until and sometimes after 11 P. M. on a vacant lot near their residence, light for the purpose being provided by small torch light lamps fastened to each wicket, on the ground that the playing of the game at the time and place constituted a nuisance whereby the enjoyment of their home was seriously impaired. Held, that the acts alleged did not constitute a nuisance justifying the grant of an injunction, there being nothing in the evidence to justify the conclusion that the parties com- plained of had wilfully persisted in playing the game with a malicious motive of annoying complainants. lb. In a prosecution for keeping barking dogs, held, in reversing a judg- ment of conviction by the police court, that a reasonable use of property was that it should not be naturally productive of material discomforts to persons of ordinary susceptibilities, tastes and habits, and that under ordinary circumstances exceptions could not be made to meet cases of pronounced idiosyncrasies and infirm health. Heylman v. Dis. of Col., 27 App. D. C. 563 ; 34 W. L. R. 387. Where a private corporation, having a contract with a railroad com- pany for the construction of a tunnel, locates its appliances in such close proximity to private residences that smoke, dust, noxious gases, etc., emanating from the plant become a nuisance to the neighborhood and substantially injure the property and comfort of life of the occupants of 714 Nuisance^. such residences, the contractor is liable at the suit of a party injured thereby; and it is no defense that the work was performed under a contract with the railroad company and was part of the work which the law authorized and required the railroad company to execute, nor that the contractor exercised due care to avoid unnecessary damage to the plaintiff and to the public; and evidence offered for the purpose of show- ing these things is rightly excluded. Filtration Co. v. JVynkoop, 39 App. D. C. 594; 35 W. L. R. 418. Dismissed in 207 U. S. 583. Where the material evidence in such case shows that the injuries to the plaintiff were caused by the plant and machinery of the defendant, al- though it appeared that the railroad company operated several locomo- tives in which it burned soft coal and which emitted smoke, a motion to direct a verdict for defendant on the ground that the jury could not separate that portion of the damages caused by the operation of de- fendant's plant from that caused by the railroad company, is rightly re- fused. Filtration Co. v. Wynkoop, 29 App. D. C. 594; 35 W. L. R. 418. Dismissed in 207 U. S. 582. A municipality, even in the course of the performance of its govern- mental functions, is not entitled to perpetrate a nuisance. Roth v. Dis. of Col., 16 App. D. C. 333 ; Palmer v. Dis. of Col, 26 App. D. C. 31. The maintenance, by the District, of a stable in connection with its police department, in a negligent, improper and unlawful manner, con- stitutes a nuisance for which the municipality is liable. Roth v. Dis. of Co., 16 App. D. C. 333; 38 W. L. R. 433. The liability of a municipality for maintaining a nuisance upon its prop- erty is in no way dependent upon the amount of gain derived by it from the existence of the nuisance. lb. It is within the power of Congress to declare the emission of dense black or gray smoke from smokestacks and chimneys in the District a public nuisance, punishable as an offense. Moses v. United States, 16 App. D. C. 428; 28 W. L. R. 578. A public official charged with the commission of a public nuisance can- not protect himself by claiming that in the performance of the act he represents the state. Palmer v. Dis. of Col., 26 App. D. C. 31. The fact that a person is willing to buy garbage is not of itself sufficient to remove it from the category of nuisances and settle its character as property. Dupont v. Dis. of Col., 20 App. D. C. 477; 30 W. L. R. 739. As to power of municipality to prevent nuisance resulting from the pos- session of carcass of animal. See Mann v. Dis. of Col, 23 App. D. C. 139; 31 W. L. R. 424. As to liability for failure to remove weeds from land within District as provided by act of Mar. 1, 1899. See Dis. of Col. v. Green, 29 App. D. C. 396; 35 W. L. R. 263. As to acts committed on Indian reservation constituting nuisance which may be abated by Federal authorities. See Morris v. Hitchcock, 31 App. D. C. 565. As to jurisdiction of equity to enjoin. See Johnson v. Balto. & 0. R. R. Co., 4 App. D. C. 491 ; 32 W. L. R. 781. As to enjoining the construction of new and the use of old tanks NuL TiK^L RECORD — OusTRucfioNS To Navigation. 715 for the storage of oil. See Standard Oil Co. v. Oeser, 11 App. D. C. 80; 25 W. L. R. 500. As to validity of act of Feb. 3^ 1899, relative to the emission of smoke. See Bradley v. Dis. of Col., 20 App. D. C. 169 ; 30 W. L. R. 455. See Privies; Smoke Law. NUL TIEL RECORD. As to effect of submitting to jury issue raised by plea of nul tiel record. See Harper v. Cunningham, 8 App. D. C. 430; 34 W. L. R. 316. OATHS. See Patents. OBJECTIONS. See Evidence. OBSTRUCTIONS. What are unlawful obstructions of streets. Swart v. Dis. of Col, 17 App. D. C. 471 ; 29 W. L. R. 138. As to what constitutes unlawful obstructions in street within meaning of §§ 226, 229, R. S. D. C. See Wolf v. Dis. of Col., 21 App. D. C. 464; 31 W. L. R. 257 As to right to maintain bill in equity to compel removal of alleged ob- struction in public alley See Watson v. Carver, 27 App. D. C. 555; 84 W. L. R. 483. A hitching post located near the curb of a sidewalk is a lawful ob- struction, but the municipality will be liable for personal injuries caused by defects therein arising from want of proper supervision. Dis. of Col. V. Duryee, 29 App. D. C. 337; 35 W. L. R. 354. As to obstruction of right of way for which an injunction will be granted. See Preston v. Siehert, 21 App. D. C. 405 ; 31 W. L. R. 194. As to sufficiency of notice to travelers on public highway of obstruction therein. See Dis. of Col. v. Moulton, 182 U. S. 576, reversing 15 App. 363. As to liability of municipality for injuries occasioned by obstructions in streets. See Dis. of Col. v. Moulton, 15 App. D. C. 363 ; 27 W. L. R. 753. As to liability of District for injuries received by pedestrian in coming into contact with a gate obstructing the sidewalk. See Domer v. Dis. of Col, 21 App. D. C. 284 ; 31 W. L. R. 243. Duty of user of street, as to obstructions therein. Swart v. Dis. of Col., 17 App. D. C. 471 ; 29 W. L. R. 138. As to duty of municipality in respect of obstructions in sidewalks. See Dotey V. Dis. of Col, 25 App. D. C. 232 ; 33 W. L. R. 293. As to liability for personal injuries sustained by reason of refuse vegetable matter left on sidewalk. See O'Dwyer v. Northern Market Co., 24 App. D. C. 81; 33 W. L. R. 438. As to right of recovery for injury to land caused by obstruction of ad- joining street by railroad track. See Hetsel v. Balto. & O. R. R. Co., 7 App. D. C. 534 ; 24 W. L. R. 38. See Negligence; Streets and Sidewalks. OBSTRUCTIONS TO NAVIGATION. See Navigable Waters. 7l6 OBSCENIi LiTliRATURH; OLEOMARGARINE Acl*. OBSCENE LITERATURE. As to pollution of public records by insertion of obscene matter. See Cearra v. Medical Supervisors, 24 App. D. C. 351; 33 W. L. R. 744. As to sufficiency of complaint to justify Board of Medical Supervisors in revoking license of physician for distributing obscene literature. See 7b. OBSOLETE LAWS. See Statutes. OCCUPATIONS. Statutes imposing restrictions on or levying taxes upon occupations are to be strictly construed. Lockwood v. Dis. of Col, 34 App. D. C. 569; 33 W. L. R. 131. OFFICES. A court of equity has no jurisdiction in any case where the question of the right to hold office is in dispute between two parties, but will direct parties to pursue their remedy at law, unless there be some distinctive ground of equity jurisdiction, in which case the court will proceed and give complete relief by way of final decree ; and so held that in this District, where the writ of quo warranto is not known, an injunction against the wrongful assumption of office will lie where the relief sought necessarily involves an accounting and discovery by defendants. Torbert V. Bennett, 24 W. L. R. 149. The proper remedy to determine the question of title to office in a private corporation is by quo warranto and not by a suit in equity. Hayes V. Palmer, 35 App. D. C. 243 ; 33 W. L. R. 200. In 1878, the office of "property disbursing agent" of the signal office was an actual one. Moses v. United States, 166 U. S. 571. See EiiECTioNS. OFFICIAL DISCRETION. As to what constitutes official discretion of the Postmaster General. See Houghton v. Payne, 31 W. L. R. 178. OFFICIAL MISCONDUCT. See Conspiracy. OFFICIAL RETIREMENT FROM OFFICE. See Parties ; Patents. OFFICERS OF THE ARMY. See Army and Navy. OIL, Discharge into Potomac River or its tributaries, of refuse water con- taining tar and oil, is prohibited by § 901, D. C. Code. Holden v. United States, 24 App. D. C. 318; 33 W. L. R. 34. See Gasoline; Inflammable Oils. OLEOMARGARINE ACT. The provisions of the Oleomargarine Act of Aug. 2, 1886, are not un- constitutional because the duty of making regidations to carry the act into effect is devolved upon the officers of the Treasury Department. Kollock V. United States, 9 App. D. C. 420; 35 W. L. R. 41. Opinions — Opinion Evidence. 717 An indictment charging the defendant with being a retail dealer in oleo- margarine without having paid the special tax therefor, is sufficient with- out going on to define what constitutes a retail dealer. Ih. Section 6, of the act of Aug. 2, 1886, providing that oleomargarine shall not be sold except in certain packages duly stamped, marked or branded, the special form or designation of the stamp, brand or mark to be approved by the Commissioner of Internal Revenue and the Secretary of the Treasury and by them furnished to dealers therein, and making a sale of oleomargarine without such stamp, mark or brand a penal offense, is constitutional and valid. Prather v. United States, 9 App. D. C. 83 ; 34 W. L. R. 395. The act is a revenue act, and is to be construed liberally to carry out the purpose of its enactment and its penal provisions are not to be rigidly construed. lb. The regulations adopted by the Treasury Department are not the law itself, but merely in aid of the law. lb. On the trial of an indictment for a violation of its provisions in which the regulations adopted by the Treasury Department in pursuance of the act are alleged, such regulations need not be specially proved, but are matters of which the court will take judicial notice. lb. Proof of a sale by an employe at the defendant's place of business, and in due course of business, is sufficient to charge the defendant with knowledge of the sale so as to render him criminally liable under the act. lb. OPINIONS. The expressions contained in opinions are to be construed with refer- ence to the subject-matter under consideration. Parroiv v. Eclipse Bicycle Co., 18 App. D. C. 101 ; 39 W. L. R. 318. Broad expressions in an opinion are to be taken in the light of the facts of the case in which they were delivered. Paolucci v. United States, 36 W. L. R. 2. OPINION EVIDENCE. The qualification of a witness is within the discretion of the trial court. Bradley v. Dis. of Col, 30 App. D. C. 169; 30 W. L. R. 455; Hamilton v. United States, 36 App. D. C. 383 ; 34 W. L. R. 558. As to discretion of trial court in excluding opinion evidence. See Right V. Metropolitan R. R. Co., 31 App. D. C. 494 ; 31 W. L. R. 303. As to character of witness as an expert. See Horton v. United States, 15 App. D. C. 310; 37 W. L. R. 706. Weight of opinions of non-expert witnesses. See Shatfer v. United States, 34 App. D. C. 417; 33 W. L. R. 4. Jury the sole judge of weight and value. lb. As to basis for. See Horton v. United States, 15 App. D. C. 310; 27 W. L. R. 706; Shaffer v. United States, 24 App. D. C. 4L7; 33 W. L. R. 4. See Evidence; Wills. 7i8 Options — Orphans' Court. OPTIONS. The grantor of an option to purchase is entitled to notice of the withdrawal of either of the grantees from his agreement within the time limited, and the notice must be "such as to fasten actual knowledge upon the grantor. Clark v. Harmer, 5 App. D. C. 114; 33 W. L. R. 120. When a broker gives an option to a purchaser to settle within a given time, he cannot be said to have found a purchaser until the option is ex- ercised and the sale completed. Block v. Ryan, 4 App. D. C. 283; 22 W. L. R. 689. A real estate agent's authority to sell does not include power to give option. Jones v. Holladay, 2 App. D. C. 279 ; 22 W. L. R. 169. As to right of personal representative or next of kin of holder of a leasehold interest to exercise option to purchase contained in lease. See Bean v. Reynolds, 15 App. D. C. 125 ; 27- W. L. R. 483. As to whether a writing is an absolute contract for the sale of lands or a mere option to purchase. See Hasleton v. Le Due, 10 App. D. C. 379; 25 W. L. R. 380. As to nature of contract as mere option to purchase real estate. Jones V. Holliday, 3 App. D. C. 279; 33 W. L. R. 169. See Contracts. ORDER OF PROOF. The order of proof is within the discretion of the trial court, and its exercise will not be disturbed on appeal unless abused. Throckmorton V. Holt, 12 App. D. C. 552; Raub v. Carpenter, 17 App. D. C. 505; 29 W. L. R. 122; Lorens v. United States, 24 App. D. C. 337; 32 W. L. R. 823. See Evidence; Triai,. ORDER OF PUBLICATION. See Publication; Patents. ORDINANCES. See Municipal Ordinances; Police Regulations. ORPHAN ASYLUMS. See Sectarian Institutions. ORPHANS' COURT. There is no provision of law making the jurisdiction of the Orphans' Court dependent upon the giving of notice of application for the probate of a will. Dugan v. Northcutt, 7 App. D. C. 351; 24 W. L. R. 3. The court is not at liberty to refuse to send issues as to a will for trial by jury, as that is a matter of right to the parties in interest. Dugan V. Northcutt, 7 App. D. C. 351; 34 W. L. R. 3. Where issues have been transmitted for trial by jury and a verdict thereon certified to the Orphans' Court, such verdict, unless vacated by some proper proceeding, is binding upon that court and it cannot there- after direct any further or other litigation of the same issues at the instance of anyone. lb. The Orphans' Court is without power, in a proceeding for the settle- ment of a guardian's accounts, to require the sureties on the guardian's bond not parties to the proceeding, to pay into court their respective proportions of an amount found to be due from the guardian to his ward. Rhodes v. Robie, 9 App. D. C. 305 ; 24 W. L. R. 739. OusTBR — Parent and Child. 719 The allowance of commissions and the amount thereof is within the sound discretion of the Orphans' Court. lb. As to effect of pendency of appeal from order of orphans' court refus- ing probate of will to suspend court's jurisdiction over the fund disposed of by the will. Sterrett v. Nat'l Safe Deposit and Trust Co., 10 App. D. C. 131; 25 W. L. R. 139. As to right of appeal from orders of. See 76. See Courts ; Practice and Procedure. OUSTER. As to necessity of proof of ouster in action of ejectment. See Crandall ■u. Lynch, 20 App. D. C. 73; 30 W. L. R. 326. OVERHEAD WIRES. See Electric Wires; Telephones. PANAMA CANAL. Authority of United States to construct. Wilson v. Shaw, 35 App. D. C. 510; 33 W. L. R. 328. ' Constitutionality of act of June 28, 1902, and validity of treaty between United States and Panama. lb. PARENT AND CHILD. In determining the custody of children, courts do not act to enforce the right of either parent, but to protect the interest and welfare of the children. Stickel v. Stickel, 18 App. D. C. 149; 29 W. L. R. 563. As to priority of right of mother to custody of infant child on death of father. See Beall v. Bibb, 19 App. D. C. 311 ; 30 W. L. R. 138. As to right of father to, by deed or will, appoint a guardian for his infant children. See Opinion of Alvey, C. J., in Slack v. Perrine, 9 App. D. C. 161. A minor of 19 years of age may enlist in the Marine Corps without the consent of his father and is not entitled to be discharged upon the application of his father. Elliott v. Harris, 24 App. D. C. 11 ; 32 W. L. R. 378. A father is bound to support his minor children and cannot, generally, when guardian thereof, use the income of their property for that pur- pose. Nor can he disturb the principal. There are, however, circum- stances under which he may. Rhodes v. Robie, 9 App. D. C. 305; 24 W. L. R. 729. The Juvenile Court of the District is without jurisdiction to require the reputed father of an illegitimate child to provide for its support. Moss V. United States, 35 W. L. R. 179. The primary duty to guard and protect a child against patent and un- concealed dangers devolves upon the parent and not upon a stranger on whose property such source of danger may be. Sullivan v. Huidekoper, 27 App. D. C. 154; 34 W. L. R. 254. A parent has no right of action for the negligent killing of a minor child independently of the act of Congress of Feb. 17, 1885 (§ 1301 of Code), which provides that the action shall be brought by the personal represen- tative of the decedent. U. S. Electric Co. v. Sullivan, 22 App. D. C. 115 ; 31 W. L. R. 406. 720 Parent and Child. As to common law right of recovery by parent for loss of services of minor child. See lb. As to damages recoverable by father for the negligent killing of his minor child. See Smith v. Davis, 22 App. D. C. 318; 31 W. L. R. 475; U. S. Electric Co. v. Sullivan, 27 App. D. C. 154; 34 W. L. R. 254. As to measure of damages for death of father by wrongful act. See Balto. 6- Pot. R. R. Co. v. Golway, 6 App. D. C. 143 ; 23 W. L. R. 308. A father, after emancipating his minor child, may himself employ and pay the child for services and be bound to fulfill his agreement. McDaniel V. Parish, 4 App. D. C. 213; 22 W. L. R. 669. Where a father agrees with his daughter that she shall be compensated by will for services rendered him, and no compensation is made, an ac- tion by the daughter will lie against the administrator of the father and the statute of limitations will not begin to run until the granting of administration. Tuohy v. Trail, 19 App. D. C. 79 ; 30 W. L. R. 3. Where a child, after arriving at the age of 21, continues to live, labor and render services in the father's family, with his knowledge and con- sent but without any agreement or understanding as to compensation, the presumption is that the parties do not contemplate a payment of wages on the one hand, nor a claim for board and lodging on the other. But this presumption may be overthrown and the reverse established by proof of an express or implied contract to that effect; an implied contract being proved by facts and circumstances showing that both parties, at the time the services were rendered, contemplated or intended pecuniary recompense. lb. In an action by a daughter against the administrator of her father to recover on an implied contract for services rendered the father, proof of repeated but varied declarations of the deceased, of his purpose and intention to provide for his daughter and save her from want, and his great desire to keep her with him, held proper for submission to the jury. lb. In the absence of evidence clearly showing the emancipation of a daughter by the father before she attained the age of 21 years, no recov- ery can be had for services rendered the parent prior to that time. lb. An advancement to a child by a parent or one in loco parentis will be presumed to be a satisfaction of a debt due the child. Patten v. Glover 1 App. D. C. 461; 31 W. L. R. 794. A gift from a child to its parent or vice I'ersa will be carefully scru- tinized, but the presumption is in favor of its validity. Towson v. Moore, 173 U. S. 17. A deed by a child, recently attained to majority, made to a parent at the latter's request and without consideration, is not presumptively or prima facie void. Murray v. Hilton, 8 App. D. C. 281 ; 24 W. L. R. 262. Transactions between parent and child are jealously regarded and closely scrutinized by courts of equity, especially where there is no ade- quate consideration ; and if tainted with unfairness, or undue advantage be taken of the influence of the relation, they will be set aside, but a deed from a child to a parent will not be declared void merely because without valuable consideration, if otherwise free from taint of undue in- fluence, lb. Parking — Parties. 721 In a suit by a daughter to set aside a deed voluntarily made to her mother shortly after becoming of age and while living with her mother, conveying without consideration all her interest in her deceased father's estate, where it appeared that the deed was executed at the request of the mother, but the property conveyed, though standing in the name of the father had been acquired mainly by the labors of the mother, which fact was known and recognized by the daughter, held that the convey- ance was valid, and could not be set aside. lb. A conveyance made to a child is presumed to carry a beneficial interest, and such presumption can only be overcome by indubitable evidence. McCartney v. Fletcher, 11 App. D. C. 1 ; 25 W. L. R. 327. Where purchase-money is paid by a father and a conveyance taken in the name of his child, there is prima facie no resulting trust for the father, but the purchase and conveyance will be deemed a gift, advance- ment or settlement, as the case may be. lb. A mother has no cause of action against one who maliciously prose- cuted an action against her daughter, either by reason of moneys ex- pended in defense of the latter action or by reason of any imputation upon- herself which persons might make in consequence of the charge against the daughter. Warick v. Grossman, 26 W. L. R. 115. Validity of transfer to father of minors, of property bequeathed to them. Darlington v. Turner, 24 App. D. C. 573 ; 33 W. L. R. 114. PARKING. See STRgBTs and Sidewalks; Variance. PAROL CONTRACTS. See Contracts. PAROL EVIDENCE. See Evidence. PAROL LICENSE. As to admissibility of evidence of parol license to use land. See Jackson V. Emmons, 19 App. D. C. 250; 30 W. L. R. 72. As to proof of continuance of license after death of grantor. See lb. PARTIAL INTESTACY. As to presumption against. See Young v. Norris Peters Co., 27 App. D. C. 140; 34 W. L. R. 240; Kennedy v. Alexander, 21 App. D. C. 424;. 31 W. L. R. 158; Home v. French, 187 U. S. 401; 31 W. L. R. 30; Mc- Caffrey V. Manogue, 22 App. D. C. 385 ; 31 W. L. R. 454 ; Reeves v. Low, 8 App. D. C. 105 ; 24 W. L. R. 113. See Wills. PARTICULAR PATENTS. See Patents. PARTIES. I. Proper and Necessary Parties. 11. Joinder of Parties. III. Nonjoinder. IV. Misjoinder. V. Substitution. VI. In .General. I. Proper and Necessary Parties. Only such persons are necessary parties to a suit in equity whose rights., 722 Parties. would necessarily be affected by the decree. Sanche v. Blectrolibration Co., 4 App. D. C. 453 ; 22 W. L. R. 769. Indispensable parties to proceedings in equity are those who not only have an interest in the controversy, but an interest of such nature that final decree cannot be made without either affecting that interest or leav- ing the controversy in such condition that its final determination may be wholly inconsistent with equity and good conscience. Landram v. Jordan, 25 App. D. C. 291 ; 33 W. L. R. 243. In a suit to avoid a conveyance to a husband in trust for the sole use of his wife, brought by the grantor therein, the party in actual possession, claiming title under the deed from complainant to the husband, from the husband to the trustees in a deed of trust, and from the trustees to a purchaser at a sale under the deed of trust, is a necessary party de- fendant. Van Hook v. Prey, 13 App. D. C, 543 ; 27 W. L. R. 39. In a suit to rescind a conveyance of land for fraud of the grantee, a trustee named in a deed of trust given by such grantee to secure his note, but to whom the note was never delivered, is not a necessary party and the trust deed and note may be cancelled without making him such. Webh V. Janney, 9 App. D. C. 41 ; 24 W. L. R. 454. To a bill to subject to the satisfaction of a judgment defendant's in- terest in a trust fund devised to himself and a co-trustee to distribute a portion of the income therefrotn among certain named persons, in- cluding defendant, the co-trustee is a necessary party, but the beneficiaries other than defendant are not. Bryan v. May, 9 App. D. C. 383; 24 W. L. R. 758. One to whom a judgment debtor conveys his equitable interest in an estate to indemnify him against loss as surety is not a necessary party to a bill praying a sale of the debtor's interest subject to the right of the surety. lb. A mere conduit of title is not a necessary party to a proceeding to set aside a fraudulent conveyance. Vogelsang v. America, 34 W. L. R. 722. As to whether the grantor in a deed is a necessary party to a suit to set it aside as fraudulent. See Weightman v. Critic Co., 4 App. D. C. 136; 22 W. L. R. 665. As to who the proper party to revive a suit in equity brought to rescind a conveyance af land. See Webb v. Janney, 9 App. D. C. 41; 24 W. L. R. 454. In an action by heirs to recover damages for impairment of the rental value of their inheritance, the widow of their ancestor and mother of such heirs, to whom dower has not been specifically assigned, is not a proper party. Balto. & Pot. R. R. Co. v. Taylor, 6 App. D. C. 259; 23 W. L. R. 324. To a suit in equity for the cancellation and surrender of an alleged fraudulent assignment of a patent and to expunge such assignment from the records of the Patent Office, the parties by and to whom the assign- ment was made and the Commissioner of Patents are necessary parties. Backus Co. V. Simonds, 2 App. D. C. 290 ; 22 W. L. R. 137. The widow of one of the heirs at law of a decedent whose will, so far a$ it affected real estate, has been decreed invalid is not an indispensably Parties. 723 party to a bill to review the original decree. Landram v. Jordan, 25 App. D. C. 292; 33 W. L. R. 243. Reversioners are not proper parties defendant to a suit in equity to subject an estate by the curtesy to the payment of a judgment debt of the tenant by the curtesy. Uhlcr v. Adams, 1 App. D. C. 393; 21 W. L. R. 803. Wives of tenants in common are not necessary parties to a proceeding for partition. Brooks v. Brooks, 28 W. L. R. 335. A wife, to whom real estate has been conveyed and by whom a mort- gage debt has been assumed as part of the purchase money, is a proper party defendant to an action seeking to charge the husband with such assumption on the theory of a resulting trust in his favor. Dorsey v. Manning, 15 App. D. C. 391; 27 W. L. R. 788. Mortgagor as party to proceeding by mortgagee to enforce for his benefit security given by grantee of mortgagor assuming mortgage debt. See Giesy v. Gregory, 15 App. D. C. 49 ; 27 W. L. R. 416. In a proceeding under § 111 of Code it will not do to proceed ex- clusively against some special claimant who may or may not claim the whole title, but all persons claiming or entitled to claim the record title must be made parties. Johnson v. Thomas, 23 App. D. C. 141 ; 32 W. L. R. 69. Except as to matters embraced in the act of Maryland of 1729, ch. 34, § 7 and § 651, R. S. D. C, suits with respect to the property of the ward, where recovery is sought for his benefit, must be in the name of the ward and not of the guardian. Balto. & Pot. K. R. Co. v. Taylor, 6 App. D. C. 259; 23 W. L. R. 324. An appeal from an order discharging a prisoner from custody on habeas corpus should be by the warden of the jail and not by the United States. Leonard v. Rodda, 5 App. D. C. 256 ; 23 W. L. R. 229. When executor or administrator not a necessary party to creditor's bill filed to reach real estate of a decedent. See Plumb v. Bateman, 2 App. D. C. 156; 22 W. L. R. 20. In this District, the assignee of a non-negotiable note can maintain an action at law upon it only in the name of the payee and assignor to his use. Commercial Nat. Bank v. Brewing Co., 16 App. D. C. 186; 38 W. L. R. 320. A receiver of a corporation is not a proper party defendant in an ac- tion to recover damages for personal injuries which accrued before his appointment. McDermott v. Crook, 20 App. D. C. 465. In an action brought by the Cherokee Nation to enjoin the Secretary of the Interior from leasing oil lands held for its benefit under § 13 of the act of June 20, 1898, those to whom the Secretary proposes to make the leases are not necessary parties defendant. Cherokee Nation v. Hitch- cock, 187 U. S. 294. As to necessary parties to suit by a taxpayer to enjoin the Treasurer of the United States from paying public moneys to a private charitable corporation under a contract between the Commissioners of the District and such corporation. See Roberts v. Bradfield, 12 App. D. C. 453 ; 26 W. L. R. 242. As to use of name of United States in petition for mandamus. See 724 Parties. Bundy v. Darling, 35 App. D. C. 460; 33 W. L. R. 434; Dancy v. Clark, 24 App. D. C. 487; 33 W. L. R. 18. As to who are necessary parties to suit to enforce mechanics' lien. See Leiler v. Porsherg, 1 App. D. C. 36 ; 21 W. L. R. 585. To suit to annul marriage of lunatic. See Mack