« ForrigeFortsett »
tion, does not endanger or weaken its In error to the Supreme Court of the foundation or superstructure, and does District of Columbia. not in any way diminish the use or conve This is an action to recover damages for nience of the servitude of the owner of a personal injury received by the plaintiff the dominant estate.
on the 14th of October, 1871, in conseSo far then as this hypothesis is con- quence of the defective condition of one cerned, this action must be deemed to of the streets of the city of Washington. have been instituted by the plaintiff for The accident occurred on K street east, an injury to his easement by the owner of and arose from the construction of the the servient estate as a result of his effort Baltimore & Potomac railroad through to make an advantageous use thereof; that street. The road was built by perand it is not sufficient to enable the plain- mission of the corporation, and authority tiff to recover, that he should prove, sim- was given to the road to change the grade ply, that the defendant had set the water of the streets according to a plan filed. back upon the reservoir dam; but he must In making this change a deep pit or excaalso prove that he was thereby disturbed vation was made, into which the plaintiff in the enjoyment of his ea sement, or hin fell. The injury to the plaintiff, the dedered or obstructed in the exercise of his fective condition of the street, and the right of reparation and maintenance, or negligence of those having it in charge, that the labor and cost thereof had been are not under consideration. These quesincreased, or that the foundations or tions were submitted to the jury, and the superstructure of the dam had been en- jury found the issue upon each of them in dangered.
favor of the plaintiff. The verdict of the Inasmuch as the charge to the jury jury, by which they awarded to the plainbased the plaintiff's right of recovery tiff the sum of three thousand five hunmerely upon the fact that the burden of dred dollars as damages, besides his costs, maintenance and repair rested upon him, and the judgment thereon, were set aside irrespective of the question whether the by the General Term of the district, and defendant had increased that burden or judgment ordered in favor of the defendhad disturbed him in the use and enjoy- ant. From this judgment the present writ ment of his easement, we think there of error was brought. should be a new trial.
The municipal corporation," the DisOpinion by Pardee, J.; the other judges trict of Columbia,” was organized under concurred.
the act of Congress of February 21st,
1871. (16 Stat. at Large, 419.) MUNICIPAL CORPORATION. The first section of the act creates a LIABILITY FOR NEGLIGENCE. municipal corporation by the name of the U. S. SUPREME COURT.
District of Columbia, with power to sue, William Barnes, plff. in error, v. The be sued, contract, have a seal, and “exerDistrict of Columbia.
cise all other powers of a municipal corDecided March, 1876.
poration, 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 construction of a work by one of its
By section second the executive power 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.
corporate, not only with power to contract, A secretary of the district is also pro- to sue and be sued, and to have a seal, but vided for, whose duties are specified. The also that it is a body corporate for municilegislative power in the district is vested pal purposes, and that it shall exercise all in two bodies, a council and house of dele other powers of a municipal corporation gates, called a legislative assembly, which not inconsistent with the Constitution power it was in the 18th section declared and laws of the United States and the should “extend to all rightful subjects of provisions of this act. (16 Stat., p. 419.) legislation within saia district, consistent The full text of section 37 is as follows: with the Constitution of the United “Sec. 37. And be it further enacted, States and the provisions of this act." That there shall be in the District of Co
It 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 board shall be a citizen and resident of shall be paid, unless they are included Georgetown, and one of said board shall in the general terms of section thirty- be a citizen and resident of the county eight.
outside of the cities of Washington and By the 37th section it is provided that Georgetown. They shall bold office for there shall be a “ board of public works, the term of four years, unless sooner reto consist of the governor and four other moved by the President of the United persons to be appointed by the President, States. The board of public works shall with the consent of the Senate, who shalí bave entire control of and make all reguhave entire control of and make all regu. for keeping in repair the streets, avenues,
lations which they shall deem necessary lations which they shall deem necessary for keeping in repair the streets, avenues, alleys, and sewers of the city, and all othand alleys and sewers of the city, and all er works which may be entrusted to their other works which may be entrusted to charge by the legislative assembly or Contheir charge by the legislative assembly or gress. Congress.” They are also required to dis “1 hey shall disburse upon their warburse the money collected for such pur- rant all moneys appropriated by the Uniposes, and to make an annual report of ted States or the District of Columbia, or their proceedings to the legislative assem- collected from property-holders, in purbly, and to furnish a duplicate of the same suance of law, for the improvement of to the governor.
streets, avenues, alleys, and sewers and The charters of the cities of Washing- roads and bridges, and shall assess in such ton and Georgetown are declard to be re- manner as shall be prescribed by law, uppealed, except that they are continued in on the property adjoining, and to be speforce for certain specified purposes, not cially benefitted by the improvements aunecessary to be here considered.
thorized by law and made by them, a reasThe statute creating this corporation in onable proportion of the cost of the im
provement, not exceeding one-third of 2. That the board of public works was such cost, which sum shall be collected not an independent body, and that its as all other taxes are collected.
proceedings, in the repair and improveThey shall make all necessary regula- ment of the street, out of which the actions respecting the construction of pri- tion arose, are the proceedings of the muvate buildings in the District of Colum- nicipal corporation. bia, subject to the supervision of the leg.
It makes no difference that the municiislative assembly.
pality had not the power to appoint or re“All contracts made by the said board of move or control its members, the act creatpublic works shall be in writing, and shall ing the corporation intended to make it a be signed by the parties making the same,
portion of the corporate body. and a copy thereof shall be filed in the of
Judgment reversed and cause remandfice of the secretary of the district; and ed with directions to affirm the judgment said board of public works shall have no
of the Special Term upon the verdict. power to make contracts to bind said dis Opinion by Hunt, J.; Swayne, Strong, trict to the payment of any sums of Field, and Bradley, J. J., dissent; the two money except in pursuance of appropria- latter upon the ground that the district tions made by law, and not until such ap- should not be responsible for the neglect propriations shall nave been made. Al and omissions of officers whom it has no contracts made by said board, in which power to select or control. any member of said board shall be personally interested, shall be void, and no payment shall be made thereon by said dis
EXAMINATION OF WITNESS. trict, or any officers thereof. On or N. Y. SUPREME COURT, GENERAL TERM. before the first Monday in November of
FIRST DEPARTMENT. each year they shall submit to each branch
Abraham Hewlett, respt. v. Samuel A. of the legislative assembly, a report of Wood et al., applts. their transactions during the preceding Decided January, 1876. year, and also furnish duplicates of the same to the governor, to be by him laid A party in whose behalf a witness is
examined under the provisions of before the President of the United States
the Revised Statutes allowing the exfor transmission to the two houses of Con amination of witnesses for the purgress; and shall be paid the sum of two
pose of perpetuating their testimony, thousand five hundred dollars each an cannot properly file the deposition nually."
until the ecamination of the witness Held, 1. That a municipal corporation
is completed, although the Judge
may have subscribed and certified it. is liable for an injury to an individual The Judge before whom the examinaarising from negligence in the construc tion is had may limit the cross-extion of a work authorized by it; but a amination in order to prevent its undistinction is to be noted between the lia. necessary continuance for the purbility of municipal corporations made such pose of annoying the witness. by the acceptance of a village or city char Appeal from orders denying motions ter, and involuntary quasi corporations made to suppress a deposition. known as counties, towns, and school dis The motions were made on behalf of tricts; the liability of the former is great- the defendant, Samuel A. Wood, to super than that of the latter, even when in- press the deposition of the defendant vested with corporate capacity and the Samuel Wood, for the reason that the power of taxation.
cross-examination had not been completed
at the time when it was certified and filed. How., 193), but no such objection as that The deposition was taken under the pro- was made before the parties last separated, visions of the Revised Statutes for per- and it consequently could not have been petuating the evidence of witnesses. 3 considered or acted upon by the justice in R. S., 5th ed., 681-3.
The witness was aged, feeble, and in The deposition of the witness should firm, and when last cross-examined re- not be suppressed nor set aside, but it quested to be excused, apparently because should be completed in conformity to the he could no longer endure the effort re- understanding on which the parties acted quired in understanding and answering when they were last before the officer. the questions propounded to him. The So ordered, costs to abide event. right to cross-examine the witness farther Opinion by Daniels, J.; Davis, P. J., was not abandoned or surrendered, but a concurring. day was fixed for the further cross-examination of the witness. On the day to
DOWER. RELEASE OF. which the further hearing of the testi
SUPREME COURT OF PENNSYLVANIA. mony was postponed, and upon several subsequent adjourned days, the witness
Campbell et al. v. Hammett. was unable to be present, so that the ex
Decided January 17, 1876. amination could proceed. Finally it was An agreement releasing a married agreed between counsel that the matter be woman's right of dower made after adjourned over until a day when the phy marriage, will be declared void in sician of the witness should give informa
equity, where it appears to be a fraud tion to his counsel that the witness was
upon her rights, unequal and unjust,
and executed under suspicious cirable to proceed with the examination, of
cumstances. which day the parties should have notice. Before the jurisdiction of the Orphans'
On the 11th of May, 1875, the day Court has attached such a proceedpreceding the date of the last arrange ing is properly brought on the equity ment, the deposition was subscribed and
side of the Common Pleas. certified by the Justice before whom the
Certiorari from Nisi Prius. In equity. proceeding was pending, and on the fol
This was a bill in equity brought by lowing 21st day of May was filed with the the widow of testator against the execuclerk.
tors, asking a decree to avoid : 1st. An E. T. Schenck for respt.
alleged agreement of Mrs. Hammett reAbraham Wakeman for applts. linquishing her right of dower, &c., dated
Held, That the statute under which the day of her marriage, but executed this examination was had contemplates its after the marriage. 2d. Another agreecompletion before it can be subscribed by ment subsequently made, reciting the first the witness or certified by the officer tak- agreement, agreeing to accept $1,200 per ing it. These are both acts which must annum in lieu of all claim on her husbe performed before any right to file it can band's estate, and praying that said exexist. That a party has no right to use ecutors might be enjoined from setting the privilege of cross-examination for the up the said agreement in bar of her rights purpose of simply annoying, exhausting, as widow, &c. The testator in his will or perplexing the witness, and that when having relied upon the validity of the that may appear to be the object the court agreements had made no provision for may in these proceedings interfere and her. prevent it by closing the examination (47 This case was referred to Hon. James
"laid as per
Thompson, late Chief Justice, who re bankruptcy has been duly adopted ported in favor of complainant's equity : and confirmed, the debtor may have 1st. Because the first writing was made
an attachment quashed that was isafter marriage. 21. Because the last
sued against his property before the agreement incorrectly recites the first, and
commencement of the proceedings in
bankruptcy, for the debt is thereby was not read to her at the time of execu
extinguished. tion, that she was in ignorance of its con
On the 4th of November, 1874, the aptents, and it was manifestly unequal and unjust, the husband's estate exceeding pellant sued out of the Court of Common
Pleas an attachment, on mesne process, $1,000,000.
against G. N. Mackenzie, C. B. MackenObjection was made that this case was zie, and C. T. Mackenzie, partners in exclusively within the jurisdiction of the trade, which was returned by the sheriff, Orphans' Court. The master decided that
schedule." the Court of Equity was the proper tri
The defendants, at January Term, 1875, bunal, and that the functions of the Or
moved to quash the attachment, for variphans' Court were not in any manner infringed by the proceeding, and reported a
ous reasons assigned, and afterwards, on
the 25th of May, 1875, filed a special plea, decree in accordance with complainant's prayer, which report and exception and alleging that the defendants were duly
adjudicated bankrupts upon the 5th of agreement was confirmed by the court at
December, 1874, upon the petition of Nisi Prius.
their creditors, filed the 25th of NovemThe executors appealed.
ber, 1974; 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.
although present, took no part, and did We concur with the master that the not vote upon or sign the resolution, a Court of Common Pleas had jurisdiction resolution for composition of the debts of of this bill. It invclved no questions of said defendants for twenty-five per cent. settlement and did not touch the estate of cash was duly passed and confirmed, under Mr. Hammett, except in its consequences, the provisions of said act, and the stateas the conveyance may attend any other ment required by said act was duly proproceeding or action in the Common duced, and therein the names, address, Pleas.
and amount of the debts of said plaintiff Decree affirmed.
was duly sworn in said statement; that Per curiam opinion.
said resolution and statement were duly presented to the Judge of the District
Court of the United States for Maryland BANKRUPTCY. COMPOSITION.
District, and said court duly caused said ATTACHMENT.
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 John M. Miller v. George N. Mackenzie. tendered to him, and by him refused ; and
said proceedings for composition, was duly 13 N. B. R., 496.
all the other creditors have accepted said After a resolution of composition in propositions, and been paid.