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INDEX.

ACTION.

See MARRIED WOMEN, 7, 8.

LANDLORD AND TENANT ACT, 1.

1. When the trustee named in a deed of trust given to secure the payment of a promissory note, with power in the trustee to sell the land if the note is not paid, dies, the person who created the trust and the note is a necessary party to an original bill in equity for the appointment of a new trustee. Holden vs. Stickney, 141.

2. In this case the person who executed the trust-deed conveyed away his remaining estate and interest in the premises, but continued to be liable for the payment of the note; and it was held that he was still interested in the appointment of a proper person to sell the property in such manner as not unnecessarily to cause a deficiency. The purchaser is also declared to be a proper party, as he is directly interested in the account and sale of the property. It might be otherwise in case of a foreclosure. Ib.

3. It is well settled that a decree obtained in a suit in equity, without making those parties to the suit in which it is had, whose rights are affected thereby, is void as to those parties; and such decrce may be impeached by original bill. Ib.

4. A master-builder agreed to erect two dwelling-houses and complete them in six months. The houses were not finished at the time agreed upon, and the owner notified the contractor that his contract was at an end, and he finished them himself, and, for this purpose, he employed several of the defendants to furnish work and material, and paid them. The owner paid a large amount to the original contractor and subcontractors, and claims damages for the breach of contract. The contractor and various subcontractors have filed liens on the property, and commenced actions to enforce such liens. Under these circumstances the owner can maintain a bill in equity, bringing all the parties into one suit, to enjoin the proceedings at law, and have all the claims settled in chancery. Painter vs. Drane, 163.

5. Where the advertisement of sale of trust-property states the day of the month correctly, but names a wrong day of the week, and the mistake is corrected in the published notice the day before the sale, a bill in equity to set aside such sale for that irregularity will be dismissed, when it is evident that there was no intention to mislead either the parties or the public, and when neither in fact were misled. Chandler vs. Cook, 176.

6. In an action for trespass for mesne profits, the statute of limitations
bars the plaintiff from recovering damages beyond the rental
value of the premises for a longer period than three years prior to
the commencement of the suit. Mesne profits cannot be sued for
until the premises have been recovered by the plaintiff in eject-
ment. In such action the defendant cannot controvert the plaintiff's
title after the latter has obtained judgment for the premises in
ejectment. In such action the plaintiff is not entitled to recover
counsel fees paid by him in prosecuting the ejectment suit. He is
entitled to taxable costs only. Meloy vs. Johnston, 202.

7. A receiver was appointed to collect certain rents, and the condition of
his bond was that if he "shall well and faithfully, in accordance
with law, perform the trust named in this bond," then the obligation
was to be void: HELD, that the bond covered a default in not pay-
ing over the rent collected when ordered to do so by the court
United States vs. Donohue, 214.

8. The commissioners of the Freedman's Savings and Trust Company, ap-
pointed in pursuance of the act of Congress of June 20, 1874, may
maintain a suit in their own names to foreclose a mortgage to the
trust company, to secure a loan of money for which the company
held the promissory note of one of the parties. Creswell vs. Williams,
246.

9. A suit in equity was brought in this court against non-resident defend-
ants, who had been appointed collectors of an estate in New York,
pending proceedings to set aside the will of a testator. There had
been no service upon such defendants except by advertisement in
a city newspaper, nor had they entered any appearance in the suit:
HELD, that the decree rendered therein was not binding upon the
executors to whom letters testamentary issued after the will had
been sustained by the New York court of appeals. Brick vs. Brick,
256.

10. A personal action on the common counts is not at all appropriate to
the remedy which the mechanic's lien law has rendered necessary
in order to enforce such a lien. Phillips vs. Coburn, 409.
11. An act of Congress, July 11, 1862, (12 Stats., 537,) created a board of
trustees of schools for colored children, and authority was given to
the Secretary of the Interior to fill all vacancies; and subsequent
acts of Congress provided that from the whole fund received for the
support of schools, a proportionate share should be set apart for the
colored schools, and should be paid to such trustees for the support
of such schools, including the cost of buildings and improvements,
and if not paid over, it should be recoverable in an action of debt
by such trustees against the cities of Washington and Georgetown:
HELD, that the plaintiff, who was an architect, and had performed
services for the board on four different school-houses for colored
children, and a balance of whose claim therefor was due and
unpaid, might maintain an action for such balance against the
District of Columbia. The principle enunciated by the United
States Supreme Court in Barnes vs. The District applied. Cluss vs.
The District of Columbia, 489.

12. In an action against the sureties on the official bond of a justice of the
peace, which action is on the alleged ground that the justice issued
a writ without authority of law, by virtue of which writ certain
goods were seized and taken away by the constable executing the
same, it is necessary to aver in the declaration that the justice
knowingly, willfully, or wrongfully omitted to do what ought to
have been done, or that, in doing what he did by way of issuing
process, he knowingly, willfully, or corruptly instituted the pro-
ceedings to the injury of the plaintiff. Holtsman vs. Robinson, 520.
13. In an action of assumpsit upon the common counts a plea puis darrein
continuance of payment is a waiver of the prior pleas, and the only
question is whether the plaintiff's claim has been paid since the
original pleas were filed. Campbell vs. District of Columbia, 533.
14. A party who has fully performed a special contract may recover a
judgment in an action of assumpsit on the common counts, but he
is restricted in his evidence as to the amount of his claim to the
terms of such contract, and it is erroneous in such case to make
allowances on the principle of a quantum meruit, unless for the per-
formance of work or for materials not provided for in the contract.
Ib.

15. Damages in consequence of delays in the performance of the contract,
caused by the neglect of the defendant, cannot be recovered in an
action of assumpsit for work done and materials furnished, but in
a different form of action. Ib.

16. Where the work done was authorized by law, and has been accepted,
used, and controlled by the District of Columbia for the benefit of
the public, the contractor will be permitted to recover upon his
contract, although the agents of the District neglected their duty
in complying with the forms prescribed by law in making it. Ib.
17. An action of assumpsit, where pleas in bar to the plaintiff's claim have
been interposed by defendant, cannot be referred to auditors under
Maryland act of November, 1785, chap. 80, sec. 12, for the auditor is
not authorized to decide issues under such pleas. Ib.

APPEAL.

1. An appeal does not perpetuate an injunction which the special term
has refused to grant. An appeal to the general term does not keep
a mere preliminary restraining order in full force and effect after
the injunction is granted or refused. Carrington vs. Sweeny, 68.
2. No appeal will lie from an order denying a motion not involving the
merits of the action. Driggs vs. Daniels, 254.

3. Where a motion is made for the delivery of certificates to the plaintiff's
solicitor, which were deposited with the clerk of the court by an
agreement of the parties, and the motion is denied, no appeal will
lie from such refusal. Ib.

4. An appeal will not lie from an order passed at a special term overruling
a motion that a trustee be required to give bonds for the faithful
execution of the trust, and that he be restrained from selling the
trust-property. Adams vs. Adams, 276.

ASSESSMENT.

See TAXATION.

ATTORNEY AT LAW.

1. The lien of a judgment-creditor upon real estate has priority over an
attorney's lien for services rendered the defendant in a subsequent
suit involving the same property. Van Riswick vs. Lamon, 172.

2. Where such real estate is decreed to be sold in an equity suit, and the
proceeds of the sale to be distributed among those entitled to them
according to their respective liens, such judgment-creditor has the
same preferable lien upon the proceeds of the sale. Ib.

AUDITOR'S CERTIFICATES.

1. The late board of public works had no such power as would authorize
them to enter into contracts which would be obligatory upon the
District of Columbia, of a negotiable character, signed by no one
but an auditor, so as to pass a legal title to the same from hand to
hand by mere delivery or indorsement. Ballard Pavement Company
vs. Mandel, 351.

2. Certificates of the auditor of the board of public works contain no word
of negotiability, and have no advantage beyond a statement of in-
debtedness, or that a certain amount of work had been performed
by the contractor to whom they were issued, and are at most to be
treated as choses in action, and an assignee must take them subject
to the right and equities of prior parties. They possess no attri-
bute which can bring them within the rules which regulate nego-
tiable securities. Ib.

3. The act of Congress directing the board of audit to examine these cer-
tificates for settlement ought not to be construed so as to make
them transferable by delivery or indorsement and unimpeachable in
the hands of any one to whom they had previously passed. Ib.
4. No evidence of usage in the city of Washington can be received for
the purpose of showing that these certificates are transferable by
indorsement, so as to convey a legal interest to the indorsee. All
that can be passed by such indorsement is a right subject to exist-
ing equities. Ib.

5. The court is, however, justified in considering the fact that these cer-
tificates are extensively used as collateral securities in borrowing
money, and will protect the lender, so as to require the amount bor-
rowed to be brought into court for his benefit. Ib.

6. The indorsement of these instruments in blank by the payee cannot be
claimed as estopping him from impeaching the title of a purchaser.
The indorsement is only the transfer of a chose in action for a par-
ticular purpose, and the law presumes that every person knows that
the legal title cannot be transferred in such contracts. Ib.

BANKRUPT LAW.

1. A bankrupt discharge will be set aside and annulled for fraud in obtaining it. It is irregular to set aside a decree or final determination without an application or shwoing of some kind, and upon due notice to the parties to be affected thereby. In re Augenstein, 322.

2. A claim against the United States, in favor of a person who has been discharged as bankrupt, passes to the assignee in bankruptcy for the benefit of creditors. Phelps vs. McDonald, 375.

3. When the bankrupt describes a claim in his schedules of assets against a general of the United States Army and others for burning cotton, of which he was the owner, during the rebellion in the South, it is substantially a statement that the claim was one against the Government; and, if the error in so stating the claim was without any design of fraud on the part of the bankrupt, it will be deemed a sufficient description of a claim against the United States. Ib.

4. The mere assertion of a claim on account of cotton destroyed by an invading force in the insurrectionary States during the rebellion amounts in itself to the implication that the claimant relied upon the protection of a Government license in its purchase. Ib.

5. If a bankrupt describes a claim as worthless when he knows it to be of considerable value or has reason to believe it to be of considerable value, a purchase made by him, or for his benefit, of his assets for a nominal sum, even after his discharge, at a sale by the assignee, would be considered fraudulent and void. Ib.

6. If the claim was without value at the date of the bankruptcy proceedings, it might properly be described as worthless; and the fact that it afterward became valuable through the power of the British government, who procured its allowance by the treaty of Washington in 1871, will not affect it in the hands of one who had purchased it at a sale by the assigree, made under the order and sanction of the bankruptcy court. Ib.

7. The money which was paid to the British government upon awards made by the commissioners under the treaty of 1871 is not in the jurisdiction of this court, nor can we compel the claimant to make an assignment thereof to his assignee in bankruptcy. The fund is to be regarded as under British dominion. Ib.

8. Where an assignee in bankruptcy sold the assets of the bankrupt estate for a nominal sum-and among them was a claim against the United States, described as worthless, and which at the time was without foundation, but which was afterward made valuable by the unforeseen circumstance of an award made by the commissioners under the treaty between Great Britain and the United States in 1871the title vested by such sale is valid when there is no fraud in the transaction. Ib.

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