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name as receiver, then as the representative
and custodian of the estate he can, subject
to the supervision of the court, bind it by ad-
missions made in good faith in the progress
of the litigation. And as in the appellate
court, after the appeal had been perfected, he
being the only party to the appeal, admitted
that it was a just claim against the mortga-
gor and within the priority over the mort-
gage prescribed in the order of appointment,
his admission showed that the allowance was
right, and that the decree ought to be af-
firmed. But still, until that admission was
made, there was a pending dispute, and he
was a proper person to appeal from the al-
lowance.

Fourth. He may appeal from an order or
decree which affects his personal rights, pro-
vided it is not an order resting in the discre-
tion of the court. Thus he may not appeal

ELIZABETH M. HUMPHRIES, by Her Next Friend, John W. Humphries, Plff in Err.,

v.

DISTRICT OF COLUMBIA.

(See S. C. Reporter's ed. 190-196.)

Sealed verdict rendered in absence of one of the jury.

The absence of the foreman of a jury, who is Ill, when the rest of the jury is polled and a sealed verdict, which all signed, is opened, is merely a matter of error, and does not render a judgment entered on the verdict a nullity, or subject to a motion to vacate it at a succeeding term of court.

[No. 230.]

1899.

from an order discharging or removing him, Argued April 4, 1899. Decided May 1,
or one directing him in the administration
of the estate, as for instance to issue receiv-
er's certificates, to make improvements, or
matters of that kind, all of which depend on
the sound discretion of the trial court. He
may appeal from an order disallowing him
commissions or fees, because that affects him
personally, is not a matter purely of discre-
tion, and does not delay or interfere with the
orderly administration of the estate.

'N ERROR to the Court of Appeals of the of that court reversing a decision of the Supreme Court of the District and remanding the case with instructions to vacate the judgment and set aside the verdict and to award a new trial, on the ground that the sealed all the jurors. Judgment of Court of Apverdict was not returned in the presence of peals reversed, and case remanded with instructions to affirm the judgment of the Supreme Court of the District of Columbia. See same case below, 12 App. D. C. 122.

Fifth. His right to appeal from an allow ance of a claim against the estate does not necessarily fail when the receivership is terminated to the extent of surrendering the property in the possession of the receiver. It is a common practice in courts of equity, anxious as they are to be relieved from the care of property, to turn it over to the parStatement by Mr. Justice Brewer: ties held entitled thereto, even before the fi*This case is before us on error to the court[191) nal settlement of all claims against it, and of appeals of the District of Columbia. The 1190]at the same time to leave to the receiver the facts are these: On May 22, 1896, the plainfurther defense of such claims, the party re- the supreme court of the district, claiming tiff in error filed an amended declaration in ceiving the property giving security to abide by any decrees which may finally be entered damages from the defendant, now defendant against the estate. An admission that the in error, on account of injuries caused by a railway property had been turned over to defective condition of the bridge between the purchaser is not therefore of itself conWashington and Anacostia-a condition reclusive against the right of the receiver to sulting from the negligence of the defendant. appeal. And the fact that the trial court A jury was impaneled, trial had, and the allowed the appeal must in the appellate case submitted to it on November 30, with court be taken, in the absence of other evi-instructions to return a sealed verdict. The instructions and the verdict were returned dence, as sufficient authentication that such reservation of authority had been made in the order directing the surrender of the property.

on the morning of December 1, and were in the following form:

Un- Elizabeth M. Hum

It seems unnecessary to say more. We When the jury agree upon a verdict, write have indicated, so far as it can safely be done it out, all of the jurors sign it, date it, seal by general propositions, the powers of a re-livered in open court on the 1st day of De it up and deliver to the foreman, to be deceiver in respect to appellate proceedings. We are of opinion that the decree of the court cember, 1896, and in the presence of all who of appeals should have been one of affirm- sign it. ance, and to that extent it is modified. der the admissions of the receiver the cost of the appellate proceedings should be paid by him, and this notwithstanding, in our The District of Cojudgment, the formal order of the court of appeals dismissing the case was incorrect. The judgment of the Circuit Court is affirmed at the cost of the appellant. 944

phries

vs.

lumbia.

No. 38281. At Law.

Dated November 30, 1896.

We, the jurors sworn to try the issu
174 U. &

[192]joined in the above titled cause, find said issue in favor of the plaintiff, and that the money payable to him by the defendant is the sum of seven thousand dollars and cits ($7,000.00).

All sign:
Michael Keegan.
W. H. St. John.
Geo. W. Rearden.
James D. Avery.
Bernard F. Locraft.
Geo. W. Amiss.

The proceedings on stated in the record:

Lester G. Thompson.
Wm. J. Tubman.
John T. Wright.
Jos. I. Farrell.
Isaac N. Rollins.
Thos. J. Giles.

December 1 are thus

"Come here again the parties aforesaid in manner aforesaid, and the same jury return into court, except John T. Wright, who does not appear, and having said sealed verdict in his possession as foreman sends the same to the court by Dr. McWilliams, who delivers the same to the court with the statement that the said John T. Wright is ill and confined to his bed and physically unable to appear in court; that he, said McWilliams, is his attending physician, and as such received from said Wright said sealed verdict with direction to deliver it to the court; whereupon the defendant, by its counsel, objected to the reception, opening, and reading of said sealed verdict; whereupon, in answer to the questions of the court, the remaining jurors severally on their oath say that they severally signed said verdict, and that they saw said John T. Wright sign the same, and that the name 'John T. Wright,' signed thereto, is in his handwriting; 'thereupon the remaining jurors on their oath say they find said issue in favor of the plaintiff and assess her damages by reason of the premises as seven thousand dollars ($7,000).?

"The counsel for the defendant ask that the jury be polled, which is done, and each of said remaining jurors on his oath says that he finds said issue in favor of the plaintiff and assesses her damages by reason of the premises at $7,000."

Upon this verdict a judgment was entered. Proceedings in error were taken, but were [193] lismissed by the court of appeals on account of a failure to have the bill of exceptions prepared in time. Thereafter, and at a succeeding term, the defendant filed a motion to vacate the judgment on the ground that there was no valid verdict, which motion was overruled. On appeal to the court of appeals this decision was reversed and the case remanded, with instructions to vacate the judgment, to set aside the verdict and award a new trial. 12 App. D. C. 122. This ruling was based on the proposition that the verdict was an absolute nullity, and therefore the judgment resting upon it void, and one which could be set aside at any subsequent term.

Mr. Arthur A. Birney for plaintiff in

[blocks in formation]

60

ord, the right to review which is sustained by Phillips v. Negley, 117 U. S. 665 [29: 1013], is whether the verdict, returned under the circumstances described, was an absolute nullity, or, at least, so far defective that no valid judgment could be entered upon it. Such is the contention of the defendant. On the contrary, the plaintiff insists that whatever irregularities may have occurred, or be apparent in the proceedings, they are simply matters of error, to be corrected on direct proceedings within the ordinary time, and in the customary manner for correcting errors occurring on a trial. Is the defect or irregularity disclosed a mere matter of error or one which affects the jurisdiction? The opinion of the court of appeals, announced by Mr. Justice Morris, is an exhaustive and able discussion of the question, arriving at the conclusion that the verdict was an absolute nullity, and therefore the judgment, based upon it, one that could be set aside, not merely at the term at which it was rendered, but at any subsequent term.

*While appreciating fully the strength of[194] the argument made by the learned judge, we are unable to concur in the conclusions reached. That the verdict returned expressed at the time it was signed the deliberate judgment of the twelve jurors cannot be questioned. That it remained the judgment of the eleven at the time it was opened and read is shown by the poll that was taken, and that it was still the judgment of the absent juror at the time he forwarded it to the court is evident from the testimony. So the objection runs to the fact that at the time the verdict was opened and read each of the twelve jurors was not polled, and each did not then and there assent to the verdict as declared. That generally the right to poll a jury exists may be conceded. Its object is to ascertain for a certainty that each of the jurors approves of the verdict as returned; that no one has been coerced or induced to sign a verdict to which he does not fully assent. It is not a matter which is vital, is frequently not required by litigants; and while it is an undoubted right of either, it is not that which must be found in the proceedings in order to make a valid verdict. Take the case suggested on argument. Supposing the twelve jurors are present, and the defeated party insists upon a poll of the jury and that right is denied, can it be that a verdict returned in the presence of the twelve by the foreman, without dissent, is by reason of such denial an absolute nullity? Is not the denial merc error, and not that which goes to the question of jurisdiction? There are many rights belonging to litigants-rights which a court may not properly deny and yet which if denied do not oust the jurisdiction or render the proceedings absolutely null and void.

The line of demarcation between those rulings which are simply erroneous and those which vitiate the result may not always be perfectly clear, and yet that such demarcation exists is conceded. This ruling of the trial court, conceding it to be error, is on the hither side of this line, and could only be taken advantage of by proceedings in error.

945

It is not so vital as to make the verdict a nullity or the judgment entered thereon void. Suppose, after the jury, at the end of a protracted trial, have agreed upon the verdict [195]and come into court to announce it, and after it has been read in open court but before a poll can be had one of the jurors is suddenly stricken dead, can it be that the whole proceeding theretofore had become thereby a nullity? Can it be that after each of the jurors has signed the verdict and after it has been returned and each is present ready to respond to a poll, the mere inability to complete the poll and make a personal appeal to each renders the entire proceedings of the trial void? We are unable to assent to such a conclusion. The right to poll a jury is certainly no more sacred than the right to have a jury, and under many statutes a trial of a case, in which a jury is a matter of

soils under them passed as a public trustsuch rights subsequently became vested in the state-confiscation acts of Marylandvalid acts-treaties of 1783 and 1794equitable obligation-rights of Marshall heirs-resolution of Congress of 1839Maryland decision-jurisdiction of the Land Office-patent, when void patent to John L. Kidwell-return of purchase money when conveyance from trustee will be assumed riparian rights on the Potomac riparian rights of Chesapeake & Ohio Canal Company-riparian rights of affirmed

lotowners-evidence-decree

Maryland act of 1871-title by adverse possession-title by failure to open Water street-owners of wharves and warehouses, when entitled to compensation-value of wharves and warehouses.

Charles I. in 1632, of the Province of Maryland, embraced the Potomac river and the soil under it and the islands therein, to high water on the southern or Virginia shore.

right, without a waiver thereof, has again 1. The charter granted to Lord Baltimore by and again been held to be erroneous and subject to correction by proceedings in error. But it is also held that an omission from the record of any such waiver is not fatal to the judgment. 2.

"The fourth is to the effect that the judgment in the Kansas court was void because the cause was tried by the court without the waiver of a trial by jury entered upon the journal. Whatever might be the effect of this omission in a proceeding to obtain a reversal or vacation of the judgment, it is very certain that it does not render the judgment void. At most it is only error, and cannot be taken advantage of collaterally." Maxwell v. Stewart, 21 Wall, 71 [22: 564]. See also same case, 22 Wall. 77 [22: 564], in which it was said: "A trial by the court, without the waiver of a jury, is at most only error."

If a trial without a jury, when a jury is a matter of right and no waiver appears of record, is not fatal to the judgment, a fortiori the minor matter of failing to poll the jury when it is clear that the verdict has received the assent of all the jurors, cannot be adjudged a nullity, but must be regarded as simply an error, to be corrected solely by direct proceedings in review. See, in reference to the distinction between matters of error and those which go to the jurisdiction, the following cases: Ex parte Bigelow, 113 U. S. 328 [28: 1005]: Re Coy, 127 U. S. 731 [32: 274]; Re Belt, 159 U. S. 95 [40: 88]; Re Eckart, 166 U. S. 481 [41: 1085]. We are of opinion that the defect com[196]plained of was merely a matter of error, and does not render the verdict a nullity. The judgment of the Court of Appeals will therefore be reversed and the case remanded with instructions to affirm the judgment of the Supreme Court of the District of Columbia.

MARTIN F. MORRIS et al., Appts.,

V.

UNITED STATES.

(See S. C. Reporter's ed. 196-359.)

Potomac river embraced in original charter of Maryland-the navigable waters and

3.

4.

5.

6.

7.

8.

9.

10.

By that charter the dominion and propriety in the navigable waters and in the soils under them passed as part of the prerogative rights annexed to the political powers conferred on Lord Baltimore, as a public trust for the common use and benefit of the whole community about to be established, for navigation and fishery, and not as private property to be sold for his own emolument.

After the American Revolution the absolute right to all navigable waters and soils under them, within each state, was held by its people for their common use, subject only to the rights since surrendered by the Constitution to the general government.

By the confiscation acts of Maryland of 1781 all the property of the then lord proprietary of Maryland, including his rights, if any, in the Potomac river and the soils under it, were confiscated to the use of the state. Such confiscation acts of Maryland were not void as in derogation of the common law or of the Constitution and Bill of Rights of the state, nor because Maryland did not have the power to pass acts of confiscation.

The treaties of 1783 and of 1794 and the Maryland act of 1787 making the treaty of 1783 the law of the state did not operate to relieve the lands under the Potomac river from such forfeiture and confiscation.

Any equitable obligation of the United States under its treaties to restore the property so confiscated, or to make compensation therefor, is a matter for Congress to consider, but is not for the consideration of the courts in determining the title to property.

The heirs of James M. Marshall and of John Marshall have no right, title, or interest in any part of the land or water composing any part of the Potomac river, or its flats, in charge of the Secretary of War.

It was not the intention of Congress, by the general resolution of 1839, to subject lands lying beneath the waters of the Potomac river and within the limits of the District of Columbia, and acquired for public purposes, to sale by the methods therein provided.

The recent decisions of the courts of Maryland, giving to the statutes of that state a construction at variance with that which prevailed at the time of the cession of the District of Columbia, cannot control the decision

of this court as to the effect of those stat-
utes on the territory within that District.
11. Lands exempted from the jurisdiction of
the Land Office in 1839 are not brought with-
In that jurisdiction because the waters of the
Potomac river had so far receded in 1869 as
to permit some sort of possession and occu-
pancy.

12. Where there is an entire want of authority
in the Land Office to grant certain lands held
for public purposes, a patent therefor issued
under a mistaken notion of the law is void.
13. The patent to John L. Kidwell for the
"Kidwell Meadows" did not confer upon him
or his assigns any title or interest in the
property adverse to the complete and para-
mount right therein of the United States.
14. Where the invalidity of the patent was not
apparent on its face, but was proved by ex-
trinsic evidence in a suit by the United
States, and the controversy respecting the
title was not abandoned by the defendants,
they are not entitled to a decree for the re-
turn of the purchase money or for costs.
15. A conveyance from trustees, which ought
to have been made, will, after a long lapse

of time, be considered by a court of equity

as having been made.

16. The holders of lots and squares on the line
of Water street in the city of Washington
are not entitled to riparian rights, or to
rights of private property in the waters or
the reclaimed lands between Water street and
the navigable channels of the Potomac river,
unless they can show valid grants from Con-
gress or from the city under the authority
of Congress, or
such long and notorious
possession of defined parcels as to justify
a court, under the doctrine of prescription,
in inferring grants; as the intention, never
departed from since the first conception
of the city, was to establish such a street
along the water front for a common access

thereto.

17. The Chesapeake & Ohio Canal Company does not, either as to lots procured from private owners, or as to lands occupied under the permission of Congress and of the city authorities. own or possess riparian rights along the line of its canal within the limits of the city.

18.

No riparian rights belong to lots north of Water street, between Seventeenth street west and Twenty-Seventh street west, as that street intervenes between such lots and the channels of the river.

19. No effect can be given to the book marked "Register of Squares" as contradicting or overriding the plans of the city as adopted by the President.

20. The decree of the court below as to the claim of the descendants of Robert Peter to certain lands near the Observatory grounds, is affirmed.

21. The Maryland act of December 19, 1791, authorizing licenses for wharves until Congress shall exercise jurisdiction, did not confer any rights to erect and maintain perma

22.

nent wharves within the waters of the Potomac river and the Eastern Branch.

24.

25.

street between 131⁄2 street and Maryland avenue does not create any title in the owners of land to the water front for wharfing and other purposes.

Owners of expensive wharves and warehouses erected and maintained, under express or implied licenses from the city authorities, on the water front along the Potomac river, are not to be treated as trespassers in taking the premises for a government improvement, but are entitled to compensation for the value of their private interests in the structures.

The final determination of all the rights in question, contemplated by the act of Congress of 1886. providing for the determination of interests in the Potomac river flats, should include the determination of the value of wharves and warehouses owned by licensees and standing on lands belonging to the government.

[No. 49.]

Argued October 26, 27, 28, 31, November 1, 2, 3, 4, 7, 1898. Decided May 1, 1899.

Court of the District of Columbia in a N APPEAL from a decree of the Supreme suit in equity brought by the United States, plaintiff, against Martin F. Morris et al., defendants, under an act of Congress to provide for protecting the interests of the United States in the Potomac river flats in the District of Columbia, approved August 15th, 1886, settling the rights, titles, and interests of defendants in and to the waters in and the soil under the Potomac river in the city of Washington, and District of Columbia, and their riparian rights on said river, in said city.

Decree affirmed as to the claims of the Marshall heirs, and as to the Kidwell patent; and as to the several claims to riparian rights as appurtenant to lots bounded on the south by Water street the case is remanded for further proceedings.

See same case below, 23 Wash. L. Rep. 745.

Statement by Mr. Justice Shiras: *The act of Maryland, entitled “An Act to[198] Cede to Congress a District of Ten Miles Square in This State for the Seat of the Government of the United States," was in the following terms: "Be it enacted by the general assembly of Maryland, that the representatives of this state in the House of Repre sentatives of the Congress of the United States, appointed to assemble at New York on the first Wednesday of March next, be and they are hereby authorized and required, on behalf of this state, to cede to the Congress of the United States any district in this state, not exceeding ten miles square, which the Congress may fix upon and accept States." Kilty's Laws of Maryland, chap. for the seat of government of the United 2, p. 46.

Where lands and waters are owned by the "An Act for the Cession of Ten Miles Square, On December 3, 1789, by an act entitled government in trust for public purposes, and are withheld from sale by the Land Depart- or Any Lesser Quantity of Territory within ment, without any renunciation of, or failure

over

to exercise, jurisdiction and control
them, an adverse possession, however long

continued, will not create a title.

23. The failure to construct and open Water

This State, to the United States, in Congress
Assembled, for the Permanent Seat of the
General Government," Virginia ceded to the
Congress and government of the United
States a tract of country not exceeding ten

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