CONTRACTS. See ATTORNEY AND CLIENT; FRAUD AND DECEIT, 1-4; PART-
NERSHIP, 1; PARTY WALLS, 3, 5, 6; PLEADING, 1, 4; VENDOR AND
PURCHASER, 1.
1. A legal infirmity which will enable a party to a contract to avoid it
must be inherent in it at the time of its inception. Ballinger v.
Lee, 422.
2. A contract between two attorneys whereby they agreed to be partners
in the prosecution of Indian claims, in accordance with existing con-
tracts with Indians for fees, is not rendered void inter sese by subse-
quent acts of Congress declaring contracts with Indians for fees
not consented to by the Secretary of the Interior to be void, and pro-
viding for the payment out of the funds belonging to the Indians
of such compensation to attorneys as the Secretary might deem to be
reasonable; especially as, when the partnership contract was en-
tered into, it was known to be the law that the United States, as
custodian of Indian funds, could limit the compensation to be paid
counsel representing claimants against such funds, even if it might
involve the destruction of existing contracts for fees. Id.
3. The illegality on the ground of public policy of a contract between two
attorneys and a client, because of the object sought to be accom-
plished by the contract, will not prevent one of the attorneys from
maintaining an action against the other to recover one half of the
fees received from the client. Columbus v. Sheehy, 462.
4. Where two attorneys entered into a written contract whereby a client
agreed to pay them a $500 retaining fee and a contingent fee of
$5,000, and they received and divided the retaining fee, and after
the services under the contract had been fully performed, one of
the attorneys, who had prepared the contract, collected from the
client and kept as his own $2,500, an affidavit of defense in an action
against him by the other attorney to recover one half of that sum
as money had and received to the use of the plaintiff is insuffi-
cient, which recites that the defendant's agreement with the plain-
tiff was that he, the defendant, should receive $250 retaining fee
and $2,500 in the event of success; that after the services were
performed he called upon the plaintiff to collect his, the defend-
ant's, fee, which the plaintiff failed to do; that thereupon the de-
fendant collected his fee from the client, and the plaintiff acqui-
esced in the payment and then negotiated directly with the client
for the payment of the $2,500 due him; and that the defendant
made no promise out of which there could arise any obligation
on his part to pay the plaintiff the sum he claimed, or any other
sum. (Citing American Secur. & T. Co. v. Kaveney, 39 App. D.
C. 223.) Id.
CONTRIBUTORY NEGLIGENCE.
TENANT, 1; NEGLIGENCE, 1.
See CARRIERS, 3, 7; LANDLORD AND
CORPORATIONS. See LIBEL AND SLANDER, 9; TRADEMARKS, 3, 4, 10.
1. Where a corporation is sought to be held liable for the wrongful or
malicious act of its agent or servant in causing another to be prose-
cuted for larceny, it must be made to appear that he was expressly
authorized to act as he did by the corporation, or that the corpora-
Roche v. Washington Gas Light Co. 562.
2. A gas light company is not liable to one of its former servants in an
action by the latter for malicious prosecution for an alleged larceny
of the company's property, where the superintendent of one of its
departments, having general authority to look after and protect
the property, caused the arrest and prosecution of the plaintiff, in
the absence of evidence to show that the company either directed the
superintendent to act, or approved or ratified his act after it was
committed. Id.
See APPEAL AND ERROR, 7; ATTACHMENT, 1; ATTORNEY AND
CLIENT, 2, 4; TRUSTS AND TRUSTEES, 4.
Sections 175, 176, D. C. Code (31 Stat. at L. 1219, chap. 854), relating
to the prosecution of suits by poor suitors in courts of original juris-
diction, was repealed by the act of Congress of June 25, 1910 (36
Stat. at L. 866, chap. 435, Comp. Stat. 1913, sec. 1626), permitting
the prosecution of suits in such courts, and appeals and writs of
error in courts of appellate jurisdiction, upon the filing of affidavits
of poverty, without deposit for fees or costs, there being nothing in
the latter act to show that the courts of the District of Columbia
were to be excluded from its operation. (Citing McGrane v. Mc-
Cann, 2 App. D. C. 221.) Hale v. Duckett, 285.
CO-TRUSTEE, DEFAULT OF. See TRUSTS AND TRUSTEES, 1–5.
COURTS. See BANKRUPTCY, 2, 3; COSTS; FOOD AND DRUGS, 1, 3, 4; IN-
JUNCTION, 1; JUDGMENT.
1. The jurisdiction of the supreme court of the District of Columbia, hold-
ing a probate term, is not different from the jurisdiction possessed
by the orphans' court of Maryland, except where specially provided
by statute. (Citing Richardson v. Daggett, 24 App. D. C. 440.)
Miniggio v. Hutchins, 117.
2. The supreme court of the District of Columbia occupies the same rela-
tion to the District of Columbia that a State court of similar juris-
diction does to the State. Lyttle v. National Surety Co. 136.
3. In matters of practice this court is not disposed to question under any
circumstances a decision of its predecessor, the general term of the
supreme court of the District of Columbia. (Following Hutchins v.
Maneely, 11 App. D. C. 88.) Overland Washington Motor Co. v.
Alexander, 282.
4. The act of Congress of February 17, 1909 (35 Stat. at L. 623, chap. 134),
creating the municipal court of the District of Columbia, and provid-
ing that it shall be constituted of the existing justices of the peace,
with the power on the part of any one of the judges of the supreme
court of the District of Columbia to designate one of the municipal
court judges to act as judge of the juvenile court in event of the
sickness or disability of the latter judge, did not by implication re-
peal sec. 3 of the act of Congress of March 19, 1906 (34 Stat. at L.
73, chap. 960), providing that a justice of the peace might be so
designated to act as judge of the juvenile court under a similar con-
dition, in which event he should be entitled to receive $5 per day in
addition to his salary as justice of the peace; and therefore a munic-
ipal court judge so acting is entitled to such extra compensation.
Callan v. District of Columbia, 338.
COVENANTS. See PARTY WALLS, 1.
The removal of a stable erected for business purposes in violation of a
restrictive covenant in the builder's deed, and finished after the
filing of a bill to enjoin its erection, should not be decreed, where
the stable is not shown to be unsanitary or its maintenance a nui-
sance, and its removal would occasion its owner serious loss, and
an injunction restraining its use to private purposes, the covenant
not prohibiting the erection of private stables, would be a just
settlement of the controversy. McNeil v. Gary, 73.
COVENANTS TO REPAIR. See LANDLORD AND TENANT, 1.
CRIMINAL LAW. See ALIENS, 5; FOOD AND DRUGS, 1, 4; JUDGMENT, 4.
1. A defendant in a case pending in the police court of the District of
Columbia may not, as of absolute right, arrest the proceedings by
raising the question as to whether the prosecution should be con-
ducted by the corporation counsel or by the United States attorney,
under sec. 933, D. C. Code, which provides that if that question
shall arise, the presiding judge shall forthwith, either of his own
motion or upon suggestion of either of those officials, certify the
case to the court of appeals to determine that question in a summary
way, and that in such case the defendant shall have the right to be
heard; but it is only when the judgment or either of the officials
named shall entertain a doubt as to who should conduct the prosecu-
tion, that such question shall be certified to this court and the de-
fendant be entitled to a hearing. Mullowny v. Mowatt, 49.
2. The supreme court of the District of Columbia under sec. 1020 Rev.
Stat. Comp. Stat. 1913, sec. 1684, has no discretionary power on
motion of the surety on a recognizance in a criminal case, to remit
the penalty of a forfeited recognizance, on a showing by the surety
that he had surrendered the accused into the custody of the United
States marshal, where it appears that there was wilful default
of the accused (following United States v. Von Jenny, 39 App.
D. C. 377); and this is especially true where it also appears that
the default was the result of an understanding between the accused
and his codefendants, one of whom would be the beneficiary if the
penalty was remitted, for the reason that he had indemnified the
surety against loss by reason of his having become surety on the
recognizance. United States v. Walter, 468.
3. In a prosecution for having had carnal knowledge of a child of tender
years, questions asked the child on direct examination by the pros-
ecutor as to what she meant by one of her statements, and whether
she said or did anything at the time of the occurrence, are not
subject to an objection by the accused that they are leading, as they
tend to elicit, and not suggest, the facts. Roney v. United States,
533.
4. The fact that a child of whom the accused is charged with having had
carnal knowledge made complaint to her mother two nights and a
day after the occurrence is competent evidence for the prosecution
when testified to by the mother, who does not testify to the partic-
ulars of the complaint; and it is also competent for the mother to
testify in such a case as to the physical condition of the child and
of her clothing. Id.
5. Where, in a prosecution for having had carnal knowledge of a child,
the counsel for the accused objected to a statement made by the
prosecutor in his argument to the jury, to the effect that before
there could be a finding of not guilty, the jury must account for
the condition of the child's clothing and for certain physical con-
ditions present in the child as testified to by witnesses, whereupon
the trial court suggested that the prosecutor was not talking about
any change of the burden under the law which compels the govern
ment to prove everything that makes up the crime beyond a reason-
able doubt, but was merely drawing inferences from the evidence,
which he had the right to do, it was held that no error had been
committed. Id.
6. Where, in a carnal knowledge prosecution in which the verdict might
have been not guilty, guilty as indicted, or not guilty as indicted,
but guilty of attempt to have carnal knowledge, the foreman of the
jury responding to the question of the clerk as to what the verdict
of the jury was, replied, “Guilty," whereupon the clerk said, “Guilty
as indicted," and the court thereupon ordered the jury to retire
and reconsider the verdict, the result being a verdict of "guilty
under the first count," which charged carnal knowledge, it was held
that the remark of the clerk had not prejudiced the accused; and
also the fact that the clerk had not polled the jury was not error,
in the absence of a request by the accused to have the jury polled.
CROSS-EXAMINATION. See CARRIERS, 5.
CUSTOM AND USAGE. See PARTY WAlls, 7.
DAMAGES. See APPEAL AND ERROR, 8; ASSAULT AND BATTERY, 1; AT-
TORNEY AND CLIENT, 1; EMINENT DOMAIN, 2; LANDLORD AND TEN-
ANT, 2, 3; LIBEL AND SLANDER, 6, 7, 9.
1. It is error for the trial court to instruct the jury in an action for
assault that the pecuniary circumstances of the defendant may be
considered in assessing compensatory damages to the plaintiff.
Traver v. Smolik, 150.
2. Punitive damages being given by way of punishment, it is not necessary
that there should be actual damage, or something more than nominal
damage, to justify their imposition; so that in an action of libel it
is not error for the trial court to refuse a prayer offered by the
defendant, to the effect that if the jury should find the damages were
nominal, and no more, they could not award punitive damages. (Cit-
ing Russell v. Washington Post Co. 31 App. D. C. 277.) Washing-
ton Post Co. v. O'Donnell, 215.
3. Exemplary or punitive damages, being awarded, not by way of com-
pensation to the sufferer, but by way of punishment to the offender,
and as a warning to others, can only be awarded against one who
has participated in the offense; and the principal, therefore, al-
though, of course, liable to make compensation for injuries done by
his agent within the scope of his employment, cannot be held liable
for exemplary or punitive damages, merely by reason of wanton,
oppressive, or malicious intent on the part of the agent. (Citing
Norfolk & W. S. B. Co. v. Davis, supra.) A. S. Abell Co. v. Ingham,
582.
DEATH. See EQUITY, 2; INSURANCE, 4, 7.
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