tion, does not endanger or weaken its foundation or superstructure, and does not in any way diminish the use or convenience of the servitude of the owner of the dominant estate. In error to the Supreme Court of the District of Columbia. This is an action to recover damages for a personal injury received by the plaintiff on the 14th of October, 1871, in consequence of the defective condition of one of the streets of the city of Washington. The accident occurred on K street east, and arose from the construction of the Baltimore & Potomac railroad through that street. The road was built by permission of the corporation, and authority was given to the road to change the grade of the streets according to a plan filed. In making this change a deep pit or excavation was made, into which the plaintiff fell. The injury to the plaintiff, the defective condition of the street, and the negligence of those having it in charge, are not under consideration. These questions were submitted to the jury, and the So far then as this hypothesis is concerned, this action must be deemed to have been instituted by the plaintiff for an injury to his easement by the owner of the servient estate as a result of his effort to make an advantageous use thereof; and it is not sufficient to enable the plaintiff to recover, that he should prove, simply, that the defendant had set the water back upon the reservoir dam; but he must also prove that he was thereby disturbed in the enjoyment of his easement, or hin dered or obstructed in the exercise of his right of reparation and maintenance, or that the labor and cost thereof had been increased, or that the foundations or superstructure of the dam had been en-jury found the issue upon each of them in dangered. Inasmuch as the charge to the jury based the plaintiff's right of recovery merely upon the fact that the burden of maintenance and repair rested upon him, irrespective of the question whether the defendant had increased that burden or had disturbed him in the use and enjoyment of his easement, we think there should be a new trial. favor of the plaintiff. The verdict of the jury, by which they awarded to the plaintiff the sum of three thousand five hundred dollars as damages, besides his costs, and the judgment thereon, were set aside by the General Term of the district, and judgment ordered in favor of the defendant. From this judgment the present writ of error was brought. The municipal corporation, "the DisOpinion by Pardee, J.; the other judges trict of Columbia," was organized under concurred. MUNICIPAL CORPORATION. Decided March, 1876. the act of Congress of February 21st, 1871. (16 Stat. at Large, 419.) The first section of the act creates a municipal corporation by the name of the District of Columbia, with power to sue, The be sued, contract, have a seal, and "exercise all other powers of a municipal corporation, not inconsistent with the laws and Constitution of the United States, A municipal corporation is liable for and the provisions of this act." injuries arising from the negligent By section second the executive power construction of a work by one of its subordinate departments, although it is vested in a governor, to be appointed may not have the power to appoint, by the President, with the consent of the remove, or control the officers con- Senate, and to hold his office for four stituting such department. years. Bills passed by the council and house of delegates were to be presented to its first section declares it to be a body him for approval or rejection. A secretary of the district is also provided for, whose duties are specified. The legislative power in the district is vested in two bodies, a council and house of delegates, called a legislative assembly, which power it was in the 18th section declared should "extend to all rightful subjects of legislation within said district, consistent with the Constitution of the United States and the provisions of this act.” corporate, not only with power to contract, to sue and be sued, and to have a seal, but also that it is a body corporate for municipal purposes, and that it shall exercise all other powers of a municipal corporation not inconsistent with the Constitution and laws of the United States and the provisions of this act. (16 Stat., p. 419.) The full text of section 37 is as follows: "Sec. 37. And be it further enacted, That there shall be in the District of CoIt is enacted that the President, with lumbia a board of public works, to consist the consent of the Senate, shall appoint a of the governor, who shall be president of board of health, consisting of five persons, said board; four persons, to be appointed whose duties are pointed out. The sala by the President of the United States, by ries of the governor and secretary are and with the advice and consent of the prescribed, and are to be paid "at the Senate, one of whom shall be a civil enTreasury of the United States." The sal- gineer, and the others citizens and resiaries of the members of the legislative as-dents of the district, having the qualificasembly are prescribed, but it is not de- tions of an elector therein; one of said clared where or how, or by whom they shall be paid, unless they are included in the general terms of section thirtyeight. By the 37th section it is provided that there shall be a "board of public works, to consist of the governor and four other persons to be appointed by the President, with the consent of the Senate, who shall have entire control of and make all regulations which they shall deem necessary for keeping in repair the streets, avenues, and alleys and sewers of the city, and all other works which may be entrusted to their charge by the legislative assembly or Congress." They are also required to disburse the money collected for such purposes, and to make an annual report of their proceedings to the legislative assembly, and to furnish a duplicate of the same to the governor. board shall be a citizen and resident of Georgetown, and one of said board shall be a citizen and resident of the county outside of the cities of Washington and Georgetown. They shall hold office for the term of four years, unless sooner removed by the President of the United States. The board of public works shall have entire control of and make all regulations which they shall deem necessary for keeping in repair the streets, avenues, alleys, and sewers of the city, and all other works which may be entrusted to their charge by the legislative assembly or Congress. "They shall disburse upon their warrant all moneys appropriated by the United States or the District of Columbia, or collected from property-holders, in pursuance of law, for the improvement of streets, avenues, alleys, and sewers and roads and bridges, and shall assess in such manner as shall be prescribed by law, upon the property adjoining, and to be specially benefitted by the improvements authorized by law and made by them, a reasThe statute creating this corporation in onable proportion of the cost of the im The charters of the cities of Washington and Georgetown are declared to be repealed, except that they are continued in force for certain specified purposes, not necessary to be here considered. such cost, which sum shall be collected as all other taxes are collected. provement, not exceeding one-third of 2. That the board of public works was not an independent body, and that its proceedings, in the repair and improvement of the street, out of which the action arose, are the proceedings of the mu "They shall make all necessary regulations respecting the construction of private buildings in the District of Colum-nicipal corporation. bia, subject to the supervision of the leg islative assembly. "All contracts made by the said board of public works shall be in writing, and shall be signed by the parties making the same, and a copy thereof shall be filed in the office of the secretary of the district; and said board of public works shall have no power to make contracts to bind said district to the payment of any sums of money except in pursuance of appropriations made by law, and not until such appropriations shall nave been made. All contracts made by said board, in which any member of said board shall be personally interested, shall be void, and no payment shall be made thereon by said district, or any officers thereof. On or before the first Monday in November of each year they shall submit to each branch of the legislative assembly, a report of their transactions during the preceding year, and also furnish duplicates of the same to the governor, to be by him laid before the President of the United States for transmission to the two houses of Congress; and shall be paid the sum of two thousand five hundred dollars each annually." Held, 1. That a municipal corporation is liable for an injury to an individual arising from negligence in the construction of a work authorized by it; but a distinction is to be noted between the liability of municipal corporations made such by the acceptance of a village or city charter, and involuntary quasi corporations known as counties, towns, and school districts; the liability of the former is greater than that of the latter, even when invested with corporate capacity and the power of taxation. It makes no difference that the municipality had not the power to appoint or remove or control its members, the act creating the corporation intended to make it a portion of the corporate body. Judgment reversed and cause remanded with directions to affirm the judgment of the Special Term upon the verdict. Opinion by Hunt, J.; Swayne, Strong, Field, and Bradley, J. J., dissent; the two latter upon the ground that the district should not be responsible for the neglect and omissions of officers whom it has no power to select or control. EXAMINATION OF WITNESS. Abraham Hewlett, respt. v. Samuel A. Decided January, 1876. A party in whose behalf a witness is examined under the provisions of the Revised Statutes allowing the examination of witnesses for the purpose of perpetuating their testimony, cannot properly file the deposition until the examination of the witness is completed, although the Judge may have subscribed and certified it. The Judge before whom the examination is had may limit the cross-CXamination in order to prevent its unnecessary continuance for the purpose of annoying the witness. Appeal from orders denying motions made to suppress a deposition. The motions were made on behalf of the defendant, Samuel A. Wood, to suppress the deposition of the defendant Samuel Wood, for the reason that the cross-examination had not been completed at the time when it was certified and filed. The deposition was taken under the provisions of the Revised Statutes for perpetuating the evidence of witnesses. 3 R. S., 5th ed., 681-3. The witness was aged, feeble, and infirm, and when last cross-examined requested to be excused, apparently because he could no longer endure the effort required in understanding and answering the questions propounded to him. The right to cross-examine the witness farther was not abandoned or surrendered, but a day was fixed for the further cross-examination of the witness. On the day to which the further hearing of the testimony was postponed, and upon several subsequent adjourned days, the witness was unable to be present, so that the examination could proceed. Finally it was agreed between counsel that the matter be adjourned over until a day when the physician of the witness should give information to his counsel that the witness was able to proceed with the examination, of which day the parties should have notice. On the 11th of May, 1875, the day preceding the date of the last arrangement, the deposition was subscribed and certified by the Justice before whom the proceeding was pending, and on the following 21st day of May was filed with the clerk. E. T. Schenck for respt. Held, That the statute under which this examination was had contemplates its completion before it can be subscribed by the witness or certified by the officer taking it. These are both acts which must be performed before any right to file it can exist. That a party has no right to use the privilege of cross-examination for the purpose of simply annoying, exhausting, or perplexing the witness, and that when that may appear to be the object the court may in these proceedings interfere and prevent it by closing the examination (47 How., 193), but no such objection as that was made before the parties last separated, and it consequently could not have been considered or acted upon by the justice in this case. The deposition of the witness should not be suppressed nor set aside, but it should be completed in conformity to the understanding on which the parties acted when they were last before the officer. So ordered, costs to abide event. Opinion by Daniels, J.; Davis, P. J., concurring. DOWER. RELEASE OF. SUPREME COURT OF PENNSYLVANIA. Campbell et al. v. Hammett. Decided January 17, 1876. An agreement releasing a married woman's right of dower made after marriage, will be declared void in equity, where it appears to be a fraud upon her rights, unequal and unjust, and executed under suspicious cir cumstances. Before the jurisdiction of the Orphans' Court has attached such a proceeding is properly brought on the equity side of the Common Pleas. Certiorari from Nisi Prius. In equity. This was a bill in equity brought by the widow of testator against the executors, asking a decree to avoid: 1st. An alleged agreement of Mrs. Hammett relinquishing her right of dower, &c., dated the day of her marriage, but executed after the marriage. 2d. Another agreement subsequently made, reciting the first agreement, agreeing to accept $1,200 per annum in lieu of all claim on her husband's estate, and praying that said executors might be enjoined from setting up the said agreement in bar of her rights as widow, &c. The testator in his will having relied upon the validity of the agreements had made no provision for her. This case was referred to Hon. James Objection was made that this case was exclusively within the jurisdiction of the Orphans' Court. The master decided that the Court of Equity was the proper tribunal, and that the functions of the Orphans' Court were not in any manner infringed by the proceeding, and reported a decree in accordance with complainant's prayer, which report and exception and agreement was confirmed by the court at Nisi Prius. The defendants, at January Term, 1875, moved to quash the attachment, for various reasons assigned, and afterwards, on the 25th of May, 1875, filed a special plea, alleging that the defendants were duly adjudicated bankrupts upon the 5th of December, 1874, upon the petition of their creditors, filed the 25th of November, 1874; that after said adjudication, a Held, The marriage settlement was post meeting of the creditors of said defendnuptial, and most probably was dictated ants was duly called, under the amendaby Mr. Hammett himself. The second tory act to the National Bankrupt Act, writing misrecited the first in important section 17, approved June 22, 1874; that particulars. We think Mrs. Hammett at said meeting, at which plaintiff, was not bound by either. The executors appealed. We concur with the master that the Court of Common Pleas had jurisdiction of this bill. It invclved no questions of settlement and did not touch the estate of Mr. Hammett, except in its consequences, as the conveyance may attend any other proceeding or action in the Common Pleas. although present, took no part, and did not vote upon or sign the resolution, a resolution for composition of the debts of said defendants for twenty-five per cent. cash was duly passed and confirmed, under the provisions of said act, and the statement required by said act was duly produced, and therein the names, address, and amount of the debts of said plaintiff was duly sworn in said statement; that said resolution and statement were duly presented to the Judge of the District Court of the United States for Maryland District, and said court duly caused said resolution to be recorded, and the said COURT OF APPEALS OF THE STATE OF statement to be filed; that the amount of MARYLAND. money properly due said plaintiff under said proceedings for composition, was duly John M. Miller v. George N. Mackenzie. tendered to him, and by him refused; and all the other creditors have accepted said After a resolution of composition in propositions, and been paid. 13 N. B. R., 496. |