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Code · STATUTES-AT-LARGE · Vol. 31 STAT. · March 3, 1901 · Chapter 854

Chapter 854. To establish a code of law for the District of Columbia

55,975 words·~254 min read·/statutes-at-large/vol-31/chapter-854-4941949·

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

CHAP. 854.— An Act To establish a code of law for the District of Columbia. March 3, 1901. *Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled*, That the following is herebyDistrict of Columbia.Code of law established. enacted and declined to be a code of law for the District of Columbia, to go into effect and operation from and after the first day of January, in the year of our Lord nineteen hundred and two. 2. *And be it further enacted*, That in the interpretation and constructionRules of interpretation. of said code the following rules shall be observed, namely:
First. Words importing the singular number shall be held to include the plural, and vice versa, except where such construction would be unreasonable. Second. Words importing the masculine gender shall be held to include all genders, except where such construction would be absurd or unreasonable. Third. The word “person” shall be held to apply to partnerships and corporations, unless such construction would be unreasonable, and the reference to any officer shall include any person authorized by law to perform the duties of his office, unless the context shows that such words were intended to be used in a more limited sense.
Fourth. Wherever the word “executor” is used it shall include “administrator.” and vice versa, unless such application of the term would be unreasonable. Fifth. Wherever an oath is required an affirmation in judicial form, if made by a person conscientiously scrupulous about taking an oath, shall be deemed a sufficient compliance. Sixth. The words “insane person” and “lunatic” shall include every idiot, non compos, lunatic, and insane person. Chapter One. LAWS REMAINING IN FORCE.
Section .1. The common law, all British statutes in force in MarylandLaws remaining in force. on the twenty-seventh day of February, eighteen hundred and one, the principles of equity and admiralty, all general acts of Congress not locally inapplicable in the District of Columbia, and all acts of Congress by their terms applicable to the District of Columbia and to other places under the jurisdiction of the United States, in force at the date of the passage of this act shall remain in force except in so far as the same are inconsistent with, or are replaced by, some pro-vision of this code. 1190 THE JUDICIARY.
The judiciary.Sec. 2. The judicial power in the District shall continue as at present to be vested in— —inferior courts.First. Inferior courts, namely, justices of the peace and the police court; and —superior courts.Second. Superior courts, namely, the supreme court of the District of Columbia, the court of appeals of the District of Columbia, and the Supreme Court of the United States. Subchapter One. JUSTICES OF THE PEACE.Justices of the peace. Appointment.Sec. 3. Appointment and Qualifications.—There shall be ten justices of the peace in the District, who shall be appointed by the President of the United States, by and with the advice and consent of the Senate, for a term of four years, unless sooner removed as provided *Proviso.*Qualifications.by law: *Provided,* That no person shall be appointed to said office unless he shall have been a bona tide resident of said District for the continuous period of at least five years immediately preceding his appointment, and shall either have held the office of justice of the peace in said District for a period of at least two years or shall have been engaged in the actual practice of law before the supreme court of the District for a period of at least five years prior to his appointment.
Each of said justices before entering upon the duties of his office shall take an oath for the faithful and impartial performance of the duties of his office, and shall give bond in such form, in such penalty, and with such surety or sureties as may be prescribed by the supreme court of Subdistricts, division of District into, etc.the District. And said supreme court shall divide the said District into ten subdistricts and prescribe the place in each subdistrict where the justice thereof shall have his office for the transaction of business, and may change the boundaries of such subdistricts and the localities of the offices of the justices therein from time to time as the volume and convenience of the business may require.
Justice to sit only where office is located.Sec. 4. Subdistricts.—No justice of the peace shall sit for the trial of causes in any subdistrict other than the one in which his office is *Provisos.*—certain temporary assignments excepted.situated: *Provided*, That in case the office of any justice of the peace shall become vacant by death or otherwise, the said supreme court, or any justice thereof, may designate one of the other justices to preside temporarily in that subdistrict until the vacancy shall be tilled: *And provided further,* That if any justice of the peace shall be disqualified to act by reason of interest, illness, or other cause, any other justice of the peace of the District, on the written request of the justice so disqualified, may preside in his absence, or, if no such written request be made, such justice as may be designated by the said supreme court, or one of the justices thereof, shall preside.
Suits to be brought in subdistrict of resident.Sec. 5. No resident of the District shall be sued in any subdistrict other than the one in which he resides, and no nonresident of the District having a place of business therein shall be sued in any subdistrict *Proviso.*other than the one in which such place of business is situated: *Provided*,—suits against two or more corporations. That where two or more persons are sued together the suit may be brought in the subdistrict in which any one of the defendants resides.
When a corporation is a defendant, its place of business shall be deemed its residence for the purpose of this section, and if it shall have in the District more than one place of business the suit may be brought in the subdistrict in which any one of its places of business is situated. Should a suit be brought against any party or corporation in any district in which he or it does not reside or hold business, and a plea 1191 to the jurisdiction on this account be tiled by said defendant, the party or corporation interposing such plea shall disclose under oath the district in which he or it should have been sued; and the justice, upon sustaining such plea, shall certify the cause for trial to the justice sit-ting in the district where suit should have been instituted; and should no such plea be tiled before trial the justice shall be deemed to have had full jurisdiction.
In any suit brought before a justice of the peace the defendant, his agent or attorney, may have the cause removed to the next nearest justice, upon filing an affidavit with the justice issuing the writ, on the return day or day of trial of the action, that he does not believe said justice will give him a fair and impartial trial. Sec. 6. Salary. Each of said justices of the peace shall receive anSalary, etc. annual salary of three thousand dollars, and the further sum of two hundred and fifty dollars annually for rent, stationery, and other expenses, to be paid monthly by the District of Columbia: and he shall render monthly accounts to the auditor of the District of Columbia of all moneys received by him for fees, and shall pay over such fees to the collector of said District and take his receipt in duplicate therefor, and filo one of them with said auditor and retain the. other in his office, and the money so collected shall be disposed of by said collector as other moneys belonging to the said District are.
Sec. 7. Jury trials.—Trial by jury before justices of the peace isJury trials. hereby abolished. Sec. 8. Rules and fees.—The supreme court of the District ofSupreme court District of Columbia to make rules, etc.Fees. Columbia in general term shall make rules regulating the practice and pleading before justices of the peace, and in relation to appeals from their judgments, not inconsistent with law. and may alter and amend the same from time to time, and shall also fix the fees to be charged by said justices of the peace, and alter them from time to time as justice may require: *Provided*, That in all cases of concurrent jurisdiction*Proviso.*Removal to supreme court District of Columbia, where jurisdiction concurrent. the defendant may remove the ease for trial into the supreme court of the District by a writ of certiorari (to be awarded by said court or one of the justices thereof upon a petition under oath, the form and substance whereof shall be prescribed by said court).
Sec. 9. Jurisdiction.—The said justices of the place shall haveJurisdiction. jurisdiction in all civil cases in which the amount claimed to be due for debt or damages arising out of contracts, express or implied, or damages for wrongs or injuries to persons or property, does not exceed three hundred dollars, including all proceedings by attachment or in replevin where the amount claimed or the value of the property involved does not exceed said sum, except in cases involving the title to real estate, actions to recover damages for assault or assault and battery, or for malicious prosecution, or actions against justices of the peace or other officers for official misconduct, or actions for slander or libel, or actions on promises to marry; and said jurisdiction shall—exclusive. be exclusive when the amount claimed for debt or damages or the value of personal property claimed does not exceed fifty dollars, and—concurrent. concurrent with the said supreme court when it exceeds fifty dollars.
Sec. 10. Trespass.—The said jurisdiction of justices of the peace—to include trespass, etc.*Proviso*.—qualification. shall extend to cases of trespass upon or injury to real estate: *Provided*, That if the defendant shall file with the justice an affidavit that he claims title or acts under a person claiming title to the real estate, setting forth the nature of his title, the. justice shall take no further cognizance of the case. Sec. 11. Nonresidents.—Nonresidents shall not commence a suitNonresidents to give security for costs. before a justice of the peace without first giving security for costs.
Sec. 12. Judgments.—It shall be lawful for any justice of the peace,Judgments. in all cases within his jurisdiction, to try. hear, and determine the matter in controversy between the parties upon their allegations and proofs, and to give judgment according to law; and all judgments for money 1192 rendered by them shall bear interest from their date until paid or satisfied. unless by the terms of the judgment interest runs from an earlier date. Replevin.Sec. 13. Replevin.—A justice of the peace shall have authority to issue a writ of replevin whenever a plaintiff shall tile with him a declaration in replevin, in the following or an equivalent form, to wit: —form.“The plaintiff sues the defendant for wrongfully taking and detaining (or wrongfully detaining) his, said plaintiff's, goods and chattels, to wit (here describe them), of the value of.
And the plaintiff claims that the same may be taken and delivered to him, or. if they are eloigned, that he may have judgment for their value and all mesne profits and damages, which he estimates at, besides costs.” And at the same time said plaintiff, his agent, or attorney shall tile an affidavit stating, first, that, according to affiant's information and belief, the plaintiff is entitled to recover possession of the chattels described in the declaration: secondly, that the defendant has seized and detains or detains the same: thirdly, that said chattels were not subject to such seizure or detention, and were not taken under any writ of replevin: fourthly, that said chattels are not of the value of more than three hundred dollars: and at the same time the plaintiff shall enter into an undertaking, with surety approved by said justice, submitting to the jurisdiction of the court, to abide by and perform the judgment of said justice’s court or of the supreme court of the District of Columbia.
Officer’s return.Sec. 14. Officer’s return.—If the officer’s return of the writ of replevin be that he has served the defendant with copies of the declaration. affidavit, and summons, but that he could not get possession of the goods and chattels sued for. the plaintiff may prosecute the action for the value of the goods and damages for the detention, not to exceed in all three hundred dollars, or he may renew the writ, in order to get possession of the goods and chattels themselves.
Publication.Sec. 15. Publication.—If the officer’s return be that he has taken possession of the goods and chattels sued for, but that the defendant is not to be found, the said justice may order that the defendant appear to the action by some fixed day, and cause notice of such order to be given by publication in some newspaper of said District at least three times, the first publication to be at least twenty days before the day fixed for the defendant's appearance; and if the defendant fails to appear, the court may proceed, as in case of default after personal service, to render judgment for the property in favor of the plaintiff.
Pleas.Sec. 16. Pleas.—If the defendant appears, he may plead not guilty, in which case all matters of defense may be given in evidence, or he may plead specially. Marshal to retain property, etc.Sec. 17. Marshal to retain property.—Property taken by the marshal under a writ of replevin, issued by a justice of the peace, shall be retained by him for three days, exclusive of Sundays and legal holidays, before delivering the same to the plaintiff, in order that the defendant or other persons claiming an interest therein may present objections to the said justice to the sufficiency of the security on the undertaking or the jurisdiction of said justice, and if the said justice shall deem said undertaking insufficient, such property may be directed to be retained by the marshal for a further short time, to be designated by said justice, until an undertaking to be approved by him shall be tiled, in default of which the marshal shall return the property to the person from whom it was taken; or if it shall be made to appear to the said justice that the property is of the value of over three hundred dollars he shall quash the writ of replevin and direct the property to be returned to the party out of whose possession it was taken.
Damages for plain tiff.Sec. 18. Damages for plaintiff.—Whether the defendant plead and the issue joined be found against him, or his plea be held bad, or 1193 he make default after personal service, the plaintiff’s damages shall be the full value of the goods, not to exceed three hundred dollars, if eloigned by the defendant, and damages for the detention thereof, and judgment shall be given accordingly. Sec. 19. Judgment for defendant.—If the issue be found for theJudgment for defendant. defendant, or the plaintiff shall dismiss or fail to prosecute his suit, the judgment shall be that the goods, if delivered to the plaintiff, be returned to the defendant, with damages for their detention, or. on failure, that the defendant recover from the plaintiff And his surety the damages sustained by him, to be assessed by the justice.
Sec. 20. Forcible entry and detainer.—Whenever any personForcible entry and detainer. shall forcibly enter and detain any building or inclosed real property, or shall unlawfully, but without force, enter and unlawfully and forcibly detain the same, or whenever any tenant shall unlawfully detain possession of the property leased to him, after his tenancy therein has expired, or any mortgagor or grantor in a mortgage or deed of trust to secure a debt, shall unlawfully detain the possession of the real property conveyed, after a sale thereof under such deed of trust or a foreclosure of the mortgage, or any person claiming under such mortgagor or grantor, after the date of the mortgage or deed of trust, shall so detain the same, or a judgment debtor or any person claiming under him, since the date of the judgment, shall so detain possession of real property, after a sale thereof under an execution issued on such judgment, it shall be lawful for any justice of the peace, on complaint under oath by the person aggrieved by said unlawful detention, to—issue of summons. issue a summons to the party complained of to appear and show cause why judgment should not be given against him tor the restitution of the possession.
Sec. 21. Summons.—The summons shall be served seven days,—service, etc. exclusive of Sundays and legal holidays, before the day fixed for the trial of the action. If the defendant has left the District of Columbia, or can not be found, said summons may be served by delivering a copy thereof to the tenant, or by leaving the same with some person above the age of sixteen years residing on or in possession of the premises sought to be recovered, and if no one be in actual possession of said premises, or residing thereon, by posting a copy of said summons on the premises where it may be conveniently read.
Sec. 22. Judgment.—If upon the trial it appears that the plaintiffJudgment. is entitled to the possession of the premises, judgment and execution for the possession shall be awarded in his favor, with costs; if the plaintiff becomes nonsuit or fails to prove his right to the possession, the defendant shall have judgment and execution for his costs. Sec. 23. Plea of title.—If upon the trial the defendant pleadsPlea of title. title to the premises, in himself or in another under whom he claims, setting forth the nature of said title, under oath, and shall enter into an undertaking, with sufficient surety, to be approved by the justice, to pay all intervening damages and costs and reasonable intervening rent for the premises, the justice shall certify the proceedings to the supreme court of the District of Columbia, and the same shall be further continued in said court according to its rules.
Sec. 24. Judgment not a bar.—A judgment, either before the justice or in the supreme court, upon appeal in this proceeding, shall not be a bar to any after action brought by either party or conclude any question of title between them, where title is not pleaded by the defendant as aforesaid. Sec. 25. Witnesses.—Justices of the peace shall have power toWitnesses. compel the attendance of witnesses from any part of the District of Columbia by attachment and to punish them for disobedience, as well as to punish anyone for disorder or contempt committed in their presence, by tine not exceeding ten dollars or imprisonment not exceeding ten days. 1194 Nonresident witnesses.Sec. 26.
Nonresident witnesses.—Where the testimony of nonresident witnesses is required by either party the justice may, upon motion Commission to take testimony of.designating the names of such witnesses, appoint an examiner to take such testimony, to whom he shall issue a commission: and said testimony shall be taken on written interrogatories and cross-interrogatories, which written interrogatories shall be tiled with said justice at *Proviso.*—when to issue.least three days before the issue of such commission: *Provided*, That such commission shall not issue unless the party applying therefor file his affidavit, settingforth that he believes that the testimony of said witnesses is material to the issue in said suit and that the motion is not made for the purpose of delay.
Death of justice.Sec. 27. Death of justice.—In case of the death of any justice or the expiration of his commission after judgment rendered by him and before execution is issued thereon, any other justice, upon a copy of said judgment being filed with him, may issue execution thereon, which shall be returned to the justice issuing the same. Satisfaction of judgment.Sec. 28. Satisfaction of judgment.—No judgment or execution shall be recorded as satisfied without the receipt of the plaintiff or his attorney annexed thereto.
Docketing judgment in supreme court.Sec. 29. Docketing judgment in supreme court.—After recovering a judgment for twenty dollars or more, exclusive of costs, before a justice of the peace, the judgment creditor may, when execution is returned “No personal property found whereon to levy,” file in the clerk's office of the supreme court of the District a certified copy of said judgment, which shall be docketed in the docket of law causes in said office in the same manner as appeals from justices are there docketed; and when it is docketed the force and effect of the judgment for all purposes shall be the same as to lien and execution as if it had been a judgment of the said supreme court.
Appeal.Sec. 30. Appeal.—Where the debt or demand or the value of personal property claimed exceeds five dollars, and in Actions for the recovery of possession of real estate, as aforesaid, either party who may think himself aggrieved by the judgment or other final order of a justice of the peace may appeal to the supreme court of the District; such appeal to be prayed within six days after the entering of the judgment. Undertaking.Sec. 31. Undertaking.—No appeal shall be allowed unless the appellant, with sufficient surety, approved by the justice, shall enter into an undertaking to satisfy and pay whatever final judgment may be recovered in the appellate court, and agree that such judgment may be entered against principal and sureties.
Such undertaking must be given within six days, exclusive of Sundays and legal holidays, after the entry of judgment. And where said undertaking has been given the justice shall immediately file the original papers, and a copy of his docket entries, in the office of the clerk of the supreme court, and notify the appellant thereof. Practice.Sec. 32. Practice.—The practice and forms of proceeding in trials before justices and in trials of appeals from justices, so far as not herein directed, shall be governed by the rules of said supreme court.
Claimant of property levied on.Sec. 33. Claimant of property levied on.—When personal property taken on execution issued by a justice of the peace is claimed by a person other than the defendant therein, or is claimed by the defendant—notice to marshal of claim. to be property exempt from execution, and such claimant shall give notice, in writing, to the marshal of his claim, or the defendant shall give notice, in writing, that the property is exempt, the marshal shall notify the plaintiff of such claim ana return said notice to the justice —trials, etc.who issued the execution, and a trial of said right of property, or said question of exemption, shall be had before said justice.
Sec. 34. The case made by such claim shall be entered on the justice’s docket as an action by the claimant or the defendant against the 1195 plaintiff and tried in the same manner as other cases before justices of the peace. Sec. 35. In ease the property shall appear to belong to the claimant—judgment for claimant. or to be exempt from execution, judgment shall be entered against the plaintiff in the execution for costs, and the property levied upon shall be released. If the property shall not appear to belong to the claimant—against. or to be exempt, as aforesaid, judgment shall be entered against, said claimant or the defendant, as the case may be. for costs, including additional costs occasioned by the delay in the execution of the writ.
An appeal may be taken from the judgment, as in other cases,—appeal. provided the same is prayed within four days after the entering of the judgment and an appeal bond is given within six days, exclusive of Sundays and legal holidays, thereafter. Sec. 36. In case of an appeal the marshal shall retain the property—marshal to retain property, etc. unless the claimant or the defendant in the execution or his agent shall enter into an undertaking, with sufficient surety, to be approved by the justice, for the delivery of such property to the marshal, if the judgment of the court shall be against the party entering into such under-taking; and said undertaking shall be returned to said supreme court, and it may give judgment thereon.
Sec. 37. Nothing herein contained shall prevent a claimant otherReplevin against officer levying, etc. than the defendant from bringing an action of replevin against the officer levying upon the property claimed as aforesaid. Sec. 38. Docket.—Each justice of the peace is required to keep aDocket entries. docket, in which he shall enter from day to day concurrently with the respective proceedings— First. The title of each action. Second. The date of the writ issued and the time of its return, the fact of affidavits being filed, with the name of any affiant.
Third. The appearance of the parties. Fourth. The nature of the pleadings in brief. Fifth. The names of witnesses sworn, and at whose request. Sixth. The judgment of the justice and the items of cost. Seventh. The appeal, if one is taken, by which party taken, the undertaking and the time of giving the same. Eighth. The satisfaction of the judgment and the date thereof. And it shall be his duty to furnish a copy of any judgment renderedCopy of judgment to be furnished. by him when required by either party to the action.
If he shall omit to keep such docket or be guilty of any other negligence or omissionPenalty for negligence, etc. whereby the plaintiff, having obtained a judgment before him. shall lose his debt, the justice shall pay and satisfy to the plaintiff the debt, interest, and costs so lost, to be recovered in an action of debt against said justice and his surety or sureties, with any additional interest that may have accrued. Sec. 39. Death or resignation.—It is hereby made the duty ofDeath or resignation. every justice of the peace, upon his resignation or removal from office or the expiration of his commission, and that of his executors or administrators in case of his death, to deliver to the clerk of the supreme court of the District all dockets and all original papers in eases not yet closed, which said justice may have had; and any person neglecting to comply with this requirement shall forfeit to the United States the sum of five hundred dollars, to be recovered as other penalties are recovered.
Sec. 40. Removal from office.—The supreme court of the DistrictRemoval from office, shall have power to remove justices of the peace from office, after due notice and an opportunity given them to be heard in their defense, for incompetency, habitual drunkenness, corruption, or other misconduct in office. Sec. 41. Process, Service of.—The office of constable is herebyProcess, service of. abolished, and all process issued by a justice of the peace shall be 1196 served by the United States marshal for the District of Columbia, or, if he is disqualified, by the coroner, and the fees for such service shall be as prescribed by rule of the supreme court of the District of Columbia.
SUPERSEDEAS. On all judgments rendered by a justice of the peace, except as hereinafter provided, stay of execution may be had upon good and sufficient security being entered by a person who may be at the time the owner of sufficient real property located in the District, above all liabilities and exemptions, to secure the debt, costs, and interest. In such cases stay of execution shall be entered as follows: For the sum of five dollars, and not exceeding twenty dollars, one month.
For all sums over twenty dollars, and not exceeding forty dollars, two months. For all sums over forty dollars, and not exceeding seventy-five dollars, four months. For all sums exceeding seventy-five dollars, six months. There shall be no stay of execution on any judgment for the wages of a servant or common laborer, nor upon any judgment for a less sum than five dollars. Subchapter Two. THE POLICE COURT.Police court. Constitution.Sec. 42. Constitution.—There shall continue to be a police court in the District, as at present, consisting of two judges learned in the law, appointed by the President, by and with the advice and consent of the Senate, for the term of six years, who shall each receive a salary Powers of judges, oath, etc.of three thousand dollars per annum.
The said judges shall hold separate sessions and may carry on the business of said court separately and simultaneously, and are empowered to make rules for the apportionment of the business between them, and the acts of each of the said judges respecting the business of said court shall be deemed and taken to be the acts of the said court. Each judge, when appointed, shall take the oath prescribed for judges of the courts of the United States. Jurisdiction.Sec. 43. Jurisdiction.—The said court shall have original jurisdiction concurrently with the supreme court of the District, except where otherwise expressly herein provided, of all crimes and offenses committed in the said District not capital or otherwise infamous and not punishable by imprisonment in the penitentiary, except libel, conspiracy, and violation of the post-office and pension laws of the United States; and also of all offenses against municipal ordinances and regulations in force in the District of Columbia.
The said court shall also have power to examine and commit or hold to bail, either for trial or further examination, in all cases, whether cognizable therein or in the supreme court of the District. informations.Sec. 44. That prosecutions in the police court shall be on Trial by jury.information by the proper prosecuting officer. In all prosecutions within the jurisdiction of said court in which, according to the Constitution of the United States, the accused would be entitled to a jury trial, the trial shall be by jury. unless the accused shall in open court expressly waive such trial by jury and request to be tried by the judge, in which case the. trial shall be by such judge, and the judgment and sentence shall have the same force and effect in all respects as if the same had been entered and pronounced upon the verdict of a jury. —by the court.In all cases where the accused would not by force of the Constitu 1197 tion of the United States be entitled to a trial by jury, the trial shall be by the court without a jury, unless in such of said last-named cases wherein the fine, or penalty may be fifty dollars or more, or imprisonment as punishment for the offense may be thirty days or more, the accused shall demand a trial by jury, in which case the trial shall be by jury.
In all cases where the said court shall impose a fine it may, in default of the payment of the fine imposed, commit the defendant for such a term as the court thinks right and proper, not to exceed one year. Sec. 45. Jury.—The jury for service in said court shall consist ofJury. twelve men, who shall have the legal qualifications necessary for jurors in the supreme court of the District, and shall receive a like compensation—qualifications, etc. for their services, and such jurors shall be drawn and selected under and in pursuance of the laws concerning the drawing and selection of jurors for service in said court.
The term of service of jurors—term of service. drawn for service in said police court shall be for three successive monthly terms of said court and. in any case on trial at the expiration of such time, until a verdict shall have been rendered or the jury shall be discharged. The said jury terms shall begin on the first Monday in January, the first Monday in April, the first Monday in July, and the first Monday in October of each year, and shall terminate, subject to the foregoing provisions, on the last Saturday of each of said jury terms.
When at any term of said court it shall happen that in a pending trial no verdict shall be found, nor the jury otherwise discharged before the next succeeding term of the court, the court shall proceed with the trial by the same jury, as if said term had not commenced. Sec. 46. At least ten days before the term of service of said jurorsDrawing of names, etc. shall begin, as herein provided for, such jurors shall be drawn as herein-before directed, and at least twenty-six names so drawn shall be certified by the clerk of the supreme court of said District to the said police court for service as jurors for the then ensuing term.
Deficiencies in any panel of any such jury may be filled according to the law applicable to jurors in said supreme court, and for this purpose either judge of said police court shall possess all the powers of a judge of said supreme court and of said court sitting as a special term. No personEligibility. shall be eligible for service on a jury in said police court for more that one jury term in any period of twelve consecutive months, but no verdict shall be set aside on such ground unless objection shall be made before the trial begins.
Service on such jury shall not render any person exempt, ineligible, or disqualified for service as a juror in said supreme court, except during his term of actual service in said police court. The marshal of said District, by himself or deputy, shall haveMarshal to have charge of jury. charge of said jury, and may appoint a deputy for that purpose, who shall be paid three dollars a day while so employed. Sec. 47. Judgment to be final.—In all cases tried before saidJudgment to be final. court the judgment of the court shall be final, except as hereinafter provided.
Sec. 48. Powers.—The said court shall have power to issue processPowers. for the arrest of persons against whom information may be filed or complaint under oath made and to compel the attendance of witnesses; to punish contempts by tine not exceeding twenty dollars and imprisonment for not more than forty-eight hours, or either, and to enforce any of its judgments by fine or imprisonment, or both, and to make such rules and regulations as may be deemed necessary and proper for conducting business in said court.
In all cases where the said court shall impose a fine it may, in default of the payment of the fine imposed, commit the defendant for such a term as the court thinks right and proper, not to exceed one year. That every person charged with an offense triable in the policeSecurity for appearance for trial. court of the District of Columbia may give security for his appearance 1198 —bond.for trial or for further hearing, either by giving bond to the —moneys.satisfaction of the court or by depositing money as collateral security with the appropriate officer at the said police court or the station keeper of the police precinct within which such person may be apprehended.
And whenever any sum of money shall be deposited as collateral security as hereby provided it shall remain, in contemplation of law. the property —property in when forfeited.of the person depositing it, until duly forfeited by the court; and when forfeited it shall be, in contemplation of law, the property of the United States of America or of the District of Columbia, according as the charge against the person depositing it is instituted on behalf of the said United States or of the said District; and every person receiving any sum of money deposited as hereby provided shall be deemed in law the agent of the person depositing the same or of the said United States —penalty for conversion.or the said District, as the case may be, for all purposes of —in tines.properly preserving and accounting for such money.
And all tines payable and paid under judgment of the said police court shall, upon their payment, immediately become, in contemplation of law. the property of the said United States or the said District, according to the charge upon which such tine may be adjudged: and the person receiving any such tine shall be deemed in law the agent of the said United States or the said District as aforesaid, as the case may be; and any person, being an agent as hereinbefore contemplated and defined, who shall wrongfully convert to his own use any money received by him as hereinbefore provided shall be deemed guilty of embezzlement, and upon conviction thereof be punished by a fine not exceeding five thousand Proviso.Rights of Washington Humane Society et al, to fines unaffected.dollars or by imprisonment not exceeding five years, or both: *Provided, *That nothing herein contained shall affect the ultimate rights under existing law of the Washington Humane Society, or the policemen’s fund (by whatever name the same may be called or known), or the fire-men’s relief fund, of the District of Columbia, in or to any fines or forfeitures paid and collected in the said police court.
Seal.Sec. 49. Seal.—The said court shall have a seal, and each of the judges shall have power to take the acknowledgment of deeds and to administer oaths and affirmations to public officers. Terms.Sec. 50. Terms.—The said court shall hold a term on the first Mon-day of every month, and continue the same from day to day as long as it may be necessary for the transaction of its business. Disability of judgeSec. 51. Disability of judge.—In cases of sickness, absence, or disability of either of the judges of said court, any one of the justices of the supreme court aforesaid may designate one of the justices of the peace to discharge the duties of said police judge until such disability be removed.
The justice so designated shall take the same oath prescribed for the judge of the police court, and shall receive the sum of ten dollars per day for the time that he shall serve, to be paid in the same manner as the salary of the judge of the police court. Clerk.Sec. 52. Clerk.—The court shall have power to appoint a clerk, at a salary of two thousand dollars per annum, who shall hold his office at the pleasure of the court, and he shall give bond with surety and take the oath of office prescribed by law for clerks of the district courts of the United States, and said clerk shall charge no fee for any service rendered by him.
Deputies.Sec. 53. Deputies. The said clerk may appoint four deputies, with the approval of the court, if the business of the court requires it. to be paid, each, such compensation as may be allowed by the court, not exceeding one thousand five hundred dollars per annum as to two of such deputies and twelve hundred dollars as to the other two. Clerk, etc., may administer oaths.Sec. 54. The said clerk and deputy clerks shall have power to administer oaths and affirmations. Bailiffs.Sec. 55.
Bailiffs and other officers.—The said court may appoint not exceeding three bailiffs, who shall receive for their services nine 1199 hundred and thirty-nine dollars each per annum, on the certificate of service by the court. Said bailiffs may act as deputies to the marshal for service of process issued by the court. The said court may also appoint a doorkeeper at a salary of five hundred and forty dollars per annum, an engineer at a salary of nine hundred dollars per annum, and a janitor at a salary of four hundred and fifty dollars per annum.
Sec. 56. Salaries, how paid.—The salaries of the judges, clerk,Salaries, how paid. deputy clerks, bailiffs, deputy marshal, doorkeeper, engineer, and janitor of the said court shall be paid as other salaries of the District of Columbia, from appropriations made by Congress as provided in the Act of June eleventh, eighteen hundred and seventy-eight. Sec. 57. Executions and forfeited recognizances.—The saidExecutions and forfeited recognizances. court shall have power to issue execution on all forfeited recognizances. upon motion of the proper prosecuting officer, and all writs of fieri facias or other writs of execution on judgments issued by said court shall be directed to and executed by the marshal of the District.
Sec. 58. Fines to be paid to the clerk of the police court: All fines,Application of moneys collected. penalties, costs and forfeitures imposed or taxed by the police court shall be paid to the clerk of said court, either with or without process or on process ordered by the court. The clerk of the police court shall, on the first secular day of each week, deposit with the collector of taxes the total amount of all fines, penalties, costs and forfeitures collected by him during the week next preceding the date of such deposit, to be covered into the Treasury to the credit of the District of Columbia, subject to the requirements of the provision of the Act of JuneVol. 29, p. 404. eleventh, eighteen hundred and ninety-six. to meet any deficiency in the police fund or the firemen’s relief fund.
The said clerk shall render an itemized statement of each deposit aforesaid upon such forms and in such manner as shall be prescribed by the auditor of the District of Columbia. Sec. 59. Accounts, how audited.—It shall be the duty of theAccounts, how audited auditor of the District of Columbia, and he is hereby required, to audit the accounts of the clerk of the police court at the end of every quarter and to make prompt report thereof in writing to the Commissioners of the District of Columbia.
In order to enable the auditor of the District to perform the duty hereby imposed upon him. he shall have free access to all books, papers, and records of the said court. Subchapter Three. SUPREME COURT OF THE DISTRICT OF COLUMBIA.Supreme court of the District of Columbia. Sec. 60. Constitution.—The supreme court of the District shallConstitution. continue as at present constituted, and consist of a chief justice and five associate justices, appointed by the President of the United States, by and with the advice and consent of the Senate, and holding their offices during good behavior.
The chief justice and each associateSalaries. justice shall receive a salary of five thousand dollars per annum, which amounts shall be paid in monthly installments, out of the Treasury of the United States, and one-half thereof shall be charged against the revenues of the District of Columbia. Sec. 61. Jurisdiction.—The said court shall possess the same powersJurisdiction. and exercise the same jurisdiction as the circuit and district courts of the United States, and shall be deemed a court of the United States, and shall also have and exercise all the jurisdiction possessed and exercised by the supreme court of the District of Columbia at the date of the passage of this code.
Sec. 62. Powers of justices.—The justices of said court, in additionPowers of justices. to the powers and jurisdiction possessed and exercised by them as such, shall severally possess the powers and exercise the jurisdiction pos 1200 sessed and exercised by the judges of the circuit and district courts of the United States. Terms, —general.Sec. 63. Terms.—The said court shall hold a general term and special terms. The general term shall be held by at least three justices and each special term by a single justice. —special.Sec. 64.
The special terms of said court shall be known, respectively, as the circuit court, the equity court, the criminal court, the probate court, and the district court of the United States. Powers of court in general term.Sec. 65. The general term of said court shall be open at all times for the transaction of business; and said court, by orders passed in general term, may regulate the periods of holding the special terms, fix the number of said terms, and alter the same from time to time, as public convenience may require; may direct as many terms of any of the special terms to be held at the same time as the public business may make necessary; may assign the several justices, from time to time, to the respective special terms; may provide by rule of court for the transfer from time to time, as the occasion shall require, of a jury summoned to any one special term to any other special term having cognizance of jury trials, and for the filling of vacancies arising in such transferred jury; may establish rides of practice in said special terms not inconsistent with the laws of the United States; may appoint a clerk, an auditor, a crier, and a messenger for each court in special term, and all other officers of the court necessary for the due administration of justice, with the exception of all officers and employees in any manner connected with the probate term, and also United States commissioners; may hear charges of misconduct against any justice of the peace, and remove them from office for cause shown; may admit persons to the bar of said court and dismiss them from the same, and may pass all other orders not inconsistent with existing laws which may be necessary to the effective administration of justice in said court, but said court shall not hear any cause in general term.
Acts of special terms deemed acts of supreme court.Sec. 66. All causes in said court shall be heard and determined in special term. And the several terms are declared to be terms of the supreme court, and the judgments, decrees, sentences, orders, proceedings, and acts of said several terms shall be deemed judgments, decrees, sentences, orders, proceedings, and acts of the supreme court. Certification of cause from one justice to another for trial.Sec. 67. By mutual consent and arrangement between justices, civil causes may be certified by any justice holding a circuit court to any justice holding a criminal court for trial in the latter; and, by similar arrangement, any cause may be certified by any justice to another justice, to be heard or tried by the latter, except that a criminal case can only be certified for trial from one criminal court to another criminal court.
In the absence of any justice assigned to a special term, such special term may be presided over and its business conducted by any other justice. Writs.Sec. 68. Writs.—The said supreme court may, in its appropriate special terms, issue writs of quo warranto, mandamus, prohibition, scire facias, certiorari, injunction, prohibitory and mandatory, he exeat, and all other writs known in common law and equity practice that may be necessary to the effective exercise of its jurisdiction.
Any justice of said court may issue writs of habeas corpus, to inquire into the cause of detention or to discharge on giving bail. Circuit court.Sec. 69. Circuit court.—All common-law civil causes shall be tried and determined in the circuit court, except as herein provided. Trial by court.Sec. 70. Trial by court.—Issues of fact in civil causes may be tried and determined by the court without the intervention of a jury whenever the parties or their attorneys of record file with the clerk a stipulation in writing waiving a jury.
The finding of the court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury. 1201 Sec. 71. In such case an exception may be taken to any ruling of—exceptions. the court during the hearing and to such finding on the ground that the evidence was insufficient in law to justify it. and may be stated in a bill of exceptions as in case of a jury trial. Sec. 72. Special panel.—In all cases called for trial in said courtSpecial panel. in which either party shall desire a struck jury the clerk shall prepare, a list of twenty jurors from the jurors in attendance and furnish the same to each of the parties, and it shall be lawful for each party or his counsel to strike off four persons from said list, and the remaining persons shall thereupon be impaneled and sworn as the petit jury in said cause; and if either party or his counsel shall neglect or refuse to strike off from said list the number of persons hereby directed, the clerk may strike off such names, and the remaining twelve jurors shall be sworn and impaneled as aforesaid.
Or. instead of the proceeding aforesaid, if it shall not be insisted upon by either party, it shall be lawful for either party to furnish to the clerk a list of the jurors, not exceeding four in number, whom he wishes to be omitted from the panel sworn in the cause, and the clerk in making up said panel shall omit the jurors objected to as aforesaid: *Provided,* That nothing herein*Proviso*.—right to challenge array or polls unaffected. contained shall be construed to take away the right of any person to challenge the array or polls of any panel returned, according to existing law.
Sec. 73. Bill of exceptions.—If. upon a trial of a cause before aBill of exceptions. jury, an exception be taken, it may be reduced to writing at the time, or it may be entered on the minutes of the justice and afterwards settled in such a manner as may be provided by the rules of the court and stated in a bill of exceptions, with so much of the substance of the evidence as may be material to the questions to be raised, and such bill of exceptions need not be sealed, and shall be considered a part of the record in case of an appeal from the tinal judgment rendered in the case.
Sec. 74. Appeals from justices of the peace.—All appeals fromAppeals from justices of the peace.—where heard.Docketing cause by appellant. a justice of the peace shall be heard and determined in the circuit court. Sec. 75. In every case of an appeal from a justice of the peace, as soon as the appellant shall have made the deposit for costs required by law, or the rules of the supreme court, or obtained leave from one of the justices or from the court to prosecute his appeal without a deposit, the clerk shall docket the cause, according to its title, for trial before the justice in the said circuit court, and shall issue a summons for the appellee to appear in said court on or before the tenth day. exclusive of Sundays and legal holidays, after the service of said summons.
Sec. 76. If the appellant shall fail to prosecute his appeal by making—by appellee. the deposit or obtaining the leave aforesaid within ten days after the approval of the appeal bond, the appellee may, upon making the deposit for costs, have the case docketed and move for affirmance of the judgment of the justice, or he may have a trial of the case upon its merits. Sec. 77. If the first summons for the appellee be returned “not toSummons. be found,” a second summons of the same kind and tenor shall be issued.
Sec. 78. If the appellee shall appear, in obedience to either summons,Appearance of appellee. the case shall stand for trial in such order as the rules of said supreme court shall direct. Sec. 79. If the appellee shall fail to appear, although duly summoned,—failure to appear. or two successive writs of summons shall be returned “not to be found.” and the appellee shall not appear, the case may then be heard and determined as if he had regularly appeared. Sec. 80. On such appeal the circuit court shall, in a summary way,Hearing de novo on appeal. hear the case de novo upon the proofs and allegations of the parties, and determine the same according to law and the equity and right of the matter; but either party may demand a trial by jury. 1202 Dismissal of appeal because not prayed to term next after judgment, etc.Sec. 81.
No appeal from the judgment of any justice of the peace to the supreme court shall be dismissed because the same had not been prayed to the term next after the rendition of such judgment, unless the court shall be satisfied that the defendant had notice of such judgment at least ten days before the sitting of court. No further appeal, etc.Sec. 82. In no ease appealed from a justice of the peace shall there be any further appeal from the judgment of the circuit court. Criminal court.Sec. 83.
The criminal court.—The trial of crimes and misdemeanors committed in the District of Columbia shall be in the supreme court of the District of Columbia holding a special term as a criminal court, except such misdemeanors as are within the jurisdicton of the police court, as to which said court shall have concurrent jurisdiction Exceptions.with said police court. In all trials in said special term exceptions may be taken by the accused to the rulings of the presiding justice and presented in bills of exceptions in the same manner as in the trial of civil cases, subject to provisions herein elsewhere contained.
District court.Sec. 84. The district court.—The said district court shall have and exercise the same powers and jurisdiction as the other district courts of the United States, and such further special jurisdiction as may from time to time be conferred by Congress, and of all proceedings instituted in exercise of the right of eminent domain. Equity court.Sec. 85. Equity court. The equity court shall have jurisdiction of all causes heretofore cognizable in equity and of all petitions for divorce, except where the relief sought is hereby authorized to be given by the probate court only, and shall have the special powers hereinafter provided.
And the practice in said court shall be according to the established course of equity and procedure and the rules established by the said supreme court of the District not inconsistent with law. Dower.Sec. 86. Dower.—Whenever any person or persons shall hold real estate, by descent or purchase, in the whole of which a widow is entitled to dower, either the widow or any person entitled to said property or an undivided share therein may apply to said court to have the widow’s dower therein assigned; and thereupon the court shall appoint three commissioners to lay off and assign said dower, if practicable, the report of said commissioners to be subject to ratification by the court.
In all eases of partition between two or more joint tenants or tenants in common of real estate, in the whole of which a widow is entitled to dower, the said dower shall be laid off and assigned, in like manner, before said partition shall be decreed. When an estate of which a woman is dowable is entire, and the dower can not be set off thereout by metes and bounds, it may be assigned by the court as of a third part of the net rents, issues, and profits thereof. Widow of tenant in common, etc.Sec. 87.
Whenever the widow of any tenant in common of real estate shall be entitled to dower in his undivided share of said property, and a partition shall be decreed between his heirs or devisees and the other tenants in common, the said dower shall attach to and may, in like manner, be assigned and laid out in the shares assigned in severalty to the said heirs or devisees, and the shares of the other tenants in common shall be assigned to them, respectively, in severalty, free from such dower.
Right of wife to attach on partition, etc.Sec. 88. Whenever an application is made to the court to decree a partition of real estate between tenants in common, it shall not be necessary to make the wife of any of such persons a party to the proceedings. but her right of dower shall attach to whatever part of such property may be assigned in severalty to her husband, and the other parts thereof shall be assigned free of said right of dower. Assignment of dower on sale of land without widow’s consent. etc.Sec. 89.
Whenever a decree is rendered for the sale of land, in the whole of which a widow is entitled to dower, if she will not consent to a sale of the same free of her dower, the court may, if it appears 1203 advantageous to the parties, cause her dower to be laid off and assigned as aforesaid. If she will consent in writing to the sale of the property free from her dower, the court shall order the same to be sold free of her dower, and shall allow her. in commutation of her dower, such portion of the net proceeds of sale as may be just and equitable, not exceeding one-sixth nor less than one-twentieth, according to the age, health, and condition of the widow.
Sec. 90. Whenever real property is decreed to be sold for the purposeDivision of proceeds of sale between tenants in common, etc. of division of the proceeds between tenants in common because the said property is incapable of being divided between them in specie, the court may decree a sale of the property free and discharged from any right of dower by the wife of any of the parties in his undivided share. Sec. 91. Infants and persons non compos mentis.—If any infantInfants and persons non compos mentis. or person non compos mentis be entitled to any real or personal estate in the District which shall be liable to any mortgage, trust, or lien, or in any way charged with the payment of money, the court shall have the same power to decree in such case as if the infant were of full age or such person non compos mentis were of sound mind.
Sec. 92. Where an infant or person non compos mentis is entitled—power of court to decree. to any real or personal estate in the District bound by any executory contract entered into by the person or persons from whom said infant or person non compos mentis has derived title, or where an infant or person non compos mentis claims any right or interest in such property under and in virtue of any such contract, the court in either case shall have the same power to decree the execution of such contract or to pass any just and proper decree that the court would have if the parties were of full age and sound mind.
Sec. 93. Partition.—The court may decree a partition of any lands,Partition. tenements, or hereditaments on the bill or petition of any tenant in common, claiming by descent or purchase, or of any joint tenant, or coparcener who was such at the date of this code; or if it appear that—sale. said lands, tenements, or hereditaments can not be divided without loss or injury to the parties interested, the court may decree a sale thereof and a division of the money arising from such sale among the parties, according to their respective rights; and this section shall apply to cases—scope of section. where all the parties are of full age, to cases where all the parties are infants, to cases where some of the parties are of full age and some infants, to cases where some or all of the parties are non compos mentis, and to eases where all or any of the parties are nonresidents: and anyWho may file bill. party, whether of full age, infant, or non compos mentis, may tile a bill under this section, an infant by his guardian or prochein and and a person non compos mentis by his committee: and if any contract hasContracts for sale of property held jointly with infants, etc. been made for the sale of the lauds, tenements, or hereditaments by any person or persons interested therein jointly or in common with any infant, idiot, or person non compos mentis, for and in behalf of all the persons so interested, which the court, upon a hearing and examination of all the circumstances, shall consider to be for the interest and advantage both of such infant, idiot, or person non compos mentis and of the other person or persons interested therein to be confirmed, the court may confirm such contract and order a deed to be executed according to the same; and all sales and deeds made in pursuance of such order shall be sufficient in law to transfer the estate and interest of such infant, idiot, or person non compos mentis in such lands, tenements, or hereditaments: *Provided,* That if the parties entitled as*Proviso.*Heirs at law unable to agree on partition, etc. heirs at law to the real estate of an intestate can not agree upon a Eartition thereof, or any of said parties be a minor, or the courts shall be of opinion that said estate can not be divided without loss or injury to the parties interested, before any sale shall be made thereof, the oldest son, child, or person entitled, if of age, shall have the election to take the whole estate and pay to the others their just proportions 1204 of the value in money; and if the oldest child or person entitled refuses to take the estate and pay to the others money for their proportions, then the next oldest child or person entitled, being of age. shall have the same election, and so on to the youngest child or person entitled: and if all refuse, then the property shall be sold as Accountability for rents, etc., by tenant having possession of property.aforesaid: and in every case of partition any tenant in common who may have received the rents and profits of the property to his own use or may have had the exclusive possession and enjoyment of the property may be required to account to his cotenants for their respective shares of said rents and profits, or. as the case may be. for the value of the use and occupation of their undivided shares of the property; and any amounts found due on said accounting may he charged against the share of the party owing the same in the property or its proceeds in case of sale.
Trustee to sell.Sec. 94. Trustee to sell.—If any person shall die having devised real estate to be sold for the payment of debts or other purposes without having appointed a trustee to sell or convey the property, or if the person so appointed shall neglect or refuse to execute the trust, or shall die before the execution of such trust, the said court shall have authority, on the application of any person interested, to appoint a trustee to sell and convey said property and apply the proceeds of sale Bond of trustee.to the purposes intended.
And in all cases where a trustee shall be appointed by last will and testament to execute any trust, and any person interested in the execution of such trust shall make it appear that it is necessary for the safety of those interested therein that the trustee should give bond and security for the due execution of the trust, the said court may order and direct that such bond be given by the trustee by a day named, and on failure of the trustee to give such bond, with security to be approved by the court as directed, the court may displace such trustee and appoint another in his stead, who shall give such bond; and such bond shall be given to the United States and may be sued on for the use of any person interested.
Mortgages.—court may decree sale and that proceeds be brought into court, etc.Sec. 95. Mortgages.—In all cases of application to said court to foreclose any mortgage or deed of trust, the said court shall have authority, instead of decreeing that the mortgagor be foreclosed and barred from redeeming the mortgaged property, to order and decree that said property be sold and the proceeds be brought into court to —where proceeds insufficient decree in personam for residue of debt.be applied to the payment of the debt secured by said mortgage; and if, upon a sale of the whole mortgaged property, the net proceeds shall be insufficient to pay the mortgage debt, the court may enter a decree in personam against the mortgagor or other party to the suit who is liable for the payment of the mortgage debt for the residue of said debt remaining unsatisfied after applying to said debt the proceeds Proviso.—qualification.of such sale: *Provided,* That the complainant would be entitled to maintain an action at law or suit in equity for said residue; which decree shall have the same effect and be enforced by execution in the —to apply also to enforce vendor's liensame manner as a judgment at law.
And in suits to enforce a vendor’s lien on real estate for unpaid purchase money similar relief may be given by a decree of sale and a decree in personam for the unsatisfied residue of the purchase money due. Debts of a decedent —sale of real estate to pay, etc.Sec. 96. Debts of a decedent.—When any person shall die leaving any real estate in possession, remainder, or reversion, and not leaving personal estate sufficient to pay his debts, the said court, on any suit instituted by any of his creditors, may decree that all the real estate left by such person, or so much thereof as may be necessary, shall he sold to pay his debts; and this section shall apply to eases where the heirs or devisees are residents or nonresidents, are of full age or infants, are of sound mind or non compos mentis, and also to cases where the deceased left no heirs or it is not known whether he left heirs or devisees or the heirs or devisees be unknown: and if Accountability for rents, etc., by tenant having possession of property. 1205 there be no known heirs the attorney of the United States for the District of Columbia shall be notified of said suit and appear thereto.
Sec. 97. Sale of contingent interests.—Where real estate is limitedSale of contingent interests. to one or more for life, with a contingent limitation over to such issue of one or more of the tenants for life as shall be living at the death of their parent or parents, and the deed or will does not prohibit a sale, said court may, on the application of the tenants for life, and if the court shall be of opinion that it is expedient to do so, order a sale of such estate and decree to the purchaser an absolute and complete title in fee simple.
Sec. 98. Any application for such sale shall be by bill, verified by—procedure. the oath of the party or parties, in which all the facts shall be distinctly set forth upon the existence of which it is claimed that such sale should be decreed, which facts shall be proved by competent testimony. All of the issue embraced in the limitation who are in existence at the time of the application shall be made parties defendant, together with all who would take the estate in case the limitation over should never vest; and minors of the age of fourteen years or more shall answer in proper person under oath, as well as by guardian ad litem, and all evidence shall be taken upon notice to the parties and the guardian ad litem.
Sec. 99. The proceeds of sale of said real estate shall be held under—disposition of proceeds. the control and subject to the order of the court, and shall be invested under its order and supervision upon real and personal security, and the same shall, to all intents and purposes, be deemed real estate and stand in the place of the real estate from the sale of which they are derived, and as such be subject to the limitations of the deed or will. Sec. 100. Wherever one or more persons shall be entitled to anDecree of sale and investment of proceeds for benefit or all parties in limited, etc., estates. estate for life or years, or a base or qualified fee simple, or any other limited or conditional estate in lands, and any other person or persons shall be entitled to a remainder or remainders, vested or contingent, or an interest by way of executory devise in the same lands, on application of any of the parties in interest the court may, if all the parties in being are made parties to the proceeding, decree a sale or lease of the property, if it shall appear to be to the interest of all concerned, and shall direct the investment of the proceeds so as to inure in like manner as provided by the original grant to the use of the same parties who would be entitled to the land sold or leased; and all such decrees, if all the persons are parties who would be entitled if the contingency had happened at the date of the decree, shall bind all persons, whether in being or not, who claim or may claim any interest in said land under any of the parties to said decree, or under any person from whom any of the parties to such decree claim, or from or under or by the original deed or will by which such particular, limited, or conditional estate, with remainders or executory devises, were created.
Sec. 101. When decree shall have effect of conveyance.— When decree shall have effect of conveyance.In all cases where a decree shall be made for a conveyance, release, or acquittance, and the party against whom such decree shall pass shall neglect or refuse to comply therewith, such decree shall stand, be considered and taken, in all courts of law and equity, to have the same operation and effect as if the conveyance, release, or acquittance had been executed conformably to such decree.
Sec. 102. Process against infants.—Whenever an infant is aProcess against infants. party defendant in any equity suit, the subpoena issued in said suit shall be served upon him personally, if within the District, and said infant shall be produced in court unless, for cause shown, the court shall dispense with his appearance, and a guardian ad litem shall be appointed to answer the bill and defend the suit for him. the said infant having the right to select his guardian ad litem if of the age of fourteen years or older. 1206 Secreting infant.Sec. 103.
If any person shall secrete an infant against whom process has issued, so as to prevent the service of such process, or shall prevent his appearance in court as aforesaid, such person shall be liable to attachment and punishment as for contempt; or if any infant shall secrete himself or evade the service of process, he may be proceeded against as if he were a nonresident. Persons non compos mentis.Sec. 104. Persons non compos mentis.—If a person non compos mentis be a party defendant in any equity suit, the subpoena shall be served upon him. if within the District, and upon his committee, if there be one within the District, and if there be no such committee and the court shall be satisfied as to the condition of said party, it may appoint a guardian ad litem to answer and defend for him.
Nonresidents.Substituting publication for personal service.Sec. 105. Nonresidents.—Publication may be substituted for personal service of process upon any defendant who can not be found and who is shown by affidavit to be a nonresident, or to have been absent from the District for at least six months, or against the unknown heirs or devisees of deceased persons, in suits for partition, divorce, by attachment, foreclosure of mortgages and deeds of trust, the establishment of title to real estate by possession, the enforcement of mechanics’ liens, and all other liens against real or personal property within the District, and in all actions at law and in equity which have for their immediate object the enforcement or establishment of any lawful right, claim, or demand to or against any real or personal property within the jurisdiction of the court. —when allowed.Sec. 106.
No order for the substitution of publication for personal service shall be made until a summons for the defendant shall have been issued and returned “Not to be found,” and the nonresidence of the defendant or his absence for at least six months shall be proved by affidavit to the satisfaction of the court. Order of publication.Sec. 107. The order of publication shall be in the following or an equivalent form: Publication.Sec. 108. Every such order shall be published at least once a week for three successive weeks, or oftener, or for such further time as may —mailing copy to party.be specially ordered; and no order or decree shall be passed against said absent or nonresident defendant upon proof of notice by such publication unless the complainant, plaintiff, his agent, or solicitor or attorney shall tile in the cause an affidavit showing that at least twenty days before applying for such order or decree be mailed, postpaid, a copy of said advertisement, directed to the party therein ordered to appear, at his last known place of residence, or that he has been unable to ascertain the last place of residence of said party after diligent effort to Judgment by defaultascertain the same.
On failure of the defendant to appear in obedience to said notice within the time named therein, a decree or *Proviso*.Where defendant an infant.judgment by default may be entered at the next rule day thereafter: *Provided*, That if the said absent or nonresident defendant be an infant, the court shall appoint a guardian as litem to answer and defend for him. 1207 Sec. 109. If the court shall be satisfied that said absent or nonresident—or non compos mentis. defendant is non compos mentis, notice may be given to him by publication as aforesaid, and upon his failure to appear such decree or judgment may be passed as the circumstances of the case may require: *Provided.* That no decree or judgment shall be passed unless the case*Proviso.*—case to be fully proved: attorney to represent, etc. is fully proved; and the court shall assign a solicitor or attorney to represent such nonresident defendant, and such solicitor or attorney shall be paid by the complainant or out of the estate of the defendant, at the discretion of the court.
Sec. 110. Unknown heirs.—Upon allegation under oath, and proofUnknown heirs. satisfactory to the court, that it is unknown whether one who, if living, would be a proper party to any judicial proceeding is living or dead, such party may be proceeded against as if he were living, and with like effect, provided no representative of or claimant under such person shall intervene in the suit before final determination thereof, after notice by publication as in the ease of nonresident parties.
If such person be dead, and it is unknown whether he died testate—where dead. or left heirs, or his heirs and devisees be unknown, such unknown persons may be described as the heirs or devisees of the person who, if living, would be the proper party, and notice shall be given by publication to such persons according to such description, and the same—proceedings, etc. proceedings shall be had against them as are had against nonresident defendants, except that said notice shall be published at least twice a month for such period as the court may order, which period shall not be less than three months without good cause shown, and which notice shall require said parties to appear on or before the first rule day occurring after the expiration of such prescribed period, and no decree shall be passed against said parties unless the court shall be satisfied that due diligence has been used to ascertain such unknown heirs.
Sec. 111. Adverse possession.—When title to any real estate inAdverse possession.Perfection of title. the District of Columbia shall have become vested in any person or persons by adverse possession, the holder thereof may file a bill in the supreme court of the District of Columbia to have such title perfected, in which bill it shall be sufficient to allege that the complainant holds the title to such real estate, and that the same has vested in him, or in himself and in those under whom he. claims, by adverse possession; and in such action it shall not be necessary to make any person a party defendant except such persons as may appear to have a claim or title adverse to that of the plaintiff.
Upon the trial of such cause, proof of the facts showing title in the plaintiff by adverse possession shall entitle him to a decree of the court declaring his title by adverse possession, and a copy of such decree may be entered of record in the office, of the recorder of deeds for said District. In any such action if process shall be returned not to be found, notice by publication may be substituted as in case of nonresident defendants. If in any case it shall be unknown whether one who, if living, would be an adverse party is living or dead, or in the case of a decedent, whether he died testate or left heirs, or his heirs or devisees are unknown, the cause may be proceeded with under the provisions of section one hundred and nine: *Provided,* That the rights of infants or others under legal disability*Provisos.*—preservation of rights of infants.—limit of time. shall be saved for a period of two years after the removal of their disabilities: *Provided, however,* That the entire period during which such rights shall be preserved shall not exceed twenty-two years from the time such rights accrued, either in said claimant or in the person or persons under whom he claims.
Sec. 112. Corporations.—In a suit against a corporation, whetherCorporations. foreign or domestic, if process can not be served, such corporation may be proceeded against as a nonresident defendant, by notice by publication. 1208 Enforcement of decrees.—attachment.Sec. 113. Enforcement of decrees.—The said court may, for the purpose of executing a decree, or to compel obedience to the same, issue an attachment against the person of the defendant, and may order an immediate sequestration of his real and personal estate, or such part thereof as may be necessary to satisfy the decree, or may issue a fieri facias and attachment by way of execution against his lands, tenements, chattels, and credits, or other incorporeal property, to satisfy the decree; —injunction.or the court may. by order and injunction, cause the possession of the estate and effects whereof the possession or a sale is decreed to be delivered to the complainant, or otherwise, according to the tenor and import of the decree and as the nature of the case may require: and in case of sequestration may order payment and satisfaction to be made out of the estate and effects so sequestrated, according to the true intent —commitment.and meaning of the decree; and in case any defendant shall be arrested and brought into court upon any process of contempt issued to compel the performance of any decree, the court may. upon motion, order such defendant to stand committed, or may order his estate and effects to be sequestrated and payment made, as above directed, or possession of his estate and effects to be delivered by order and injunction as above directed, until such decree or order shall be fully performed and executed, according to the tenor and true meaning thereof, and the contempt cleared; but where the decree only directs the payment of money no defendant shall be imprisoned except in those cases especially provided for.
Interlocutory orders.Sec. 114. All interlocutory orders may be enforced by such process as might be had upon a final judgment or decree to the like effect, and the payment of costs adjudged to any party may be enforced in like manner. Decree for delivery of chattels.Sec. 115. An order or decree for the delivery of chattels may he enforced by the same writs as are used in the action of replevin at common law. as well as those heretofore used for its enforcement in equity practice.
Probate court.Sec. 116. Probate court.—The special term of said supreme court, heretofore known as the orphans’ court, shall be designated the —jurisdiction.probate court, and the justice holding said court shall have and exercise all the powers and jurisdiction by law held and exercised by the orphans’ court of Washington County, District of Columbia, prior to the twenty-first day of June, anno Domini eighteen hundred and seventy. —plenary as to wills, etc.Sec. 117. That in addition to the jurisdiction conferred in the preceding section, plenary jurisdiction is hereby given to the said court holding the said special term to hear and determine all questions relating to the execution and to the validity of any and all wills devising any real estate within the District of Columbia, and of any and all wills and testaments properly presented for probate therein, and to admit the same to probate and record in said special term: and neither the execution nor the validity of any such will or testament so admitted to probate and record shall be impeached or examined collaterally, but the same shall be in all respects and as to all persons res judicata, subject. nevertheless, to the provisions hereinafter contained.
Sessions of court.Sec. 118. The said court, shall hold weekly sessions on such days as it may appoint and on as many days as may be necessary for the dis-patch of its business. Powers defined.Sec. 119. Powers.—It shall have full power and authority to take the proof of wills of either personal or real estate and admit the same to probate and record, and for cause to revoke the probate thereof; to grant and, for any of the causes hereinafter mentioned, to revoke letters testamentary, letters of administration, letters ad colligendum, and letters of guardianship, and to appoint a successor in the place of anyone whose letters have been revoked; to hear, examine, and decree 1209 upon all accounts, claims, and demands existing between executors and administrators and legatees, or persons entitled to a distributive share of an intestate estate, or between wards and their guardians: to enforce the distribution of estates by executors and administrators, and the payment or delivery by guardians of money or property belonging to their wards, and. concurrently with the equity court, to direct the sale of real estate of decedents for the payment of their debts and the application of the proceeds thereof: *Provided,* That the jurisdiction of*Proviso.*—qualification of jurisdiction, etc. said probate court shall not be exclusive of the jurisdiction of the said equity court to entertain suits by legatees or next of kin against executors' or administrators, or by wards against their guardians for an accounting; and. except in cases provided for in section numbered one hundred and forty-four, any settlement of accounts in said probate court shall only be prima facie evidence as to the correctness of said accounts in any such suits, or in suits by creditors against executors or administrators, or against heirs or devisees, to subject the real estate of decedents to the payments of their debts.
Sec. 120. Clerk.—The register of wills of the District of ColumbiaClerk.—register of wills to act. shall be, and hereby is. authorized, empowered, and directed to act as clerk of the said probate term, to keep and certify its records and generally. with respect to said term, to exercise all the powers and perform all the duties which might otherwise be properly exercised or performed by the clerk of the supreme court of the District of Columbia. Sec. 121. The said register of wills may receive inventories and—powers, etc., of register of wills. accounts of sales, examine vouchers, and state accounts of executors, administrators, collectors, and guardians, subject to final passage or rejection of same by the court; may take probate of claims against the estates of deceased persons that are proper to be brought before him. and pass any claims not exceeding three hundred dollars: may take the probate of wills and accept the bonds of executors, administrators, collectors, and guardians, subject to approval by the court.
It shall be his duty to make full and fair entries of the proceedings of said court, and also to make a fair record in a strong bound book or books of all wills proved before him or said court, and of all other matters by law directed to be recorded in said court, and to lodge every original paper tiled with him in such place of safety as the court may appoint. He shall make out and issue every summons, process, and order of the court, and in every respect act under its control and direction in reference to matters coming within the jurisdiction of said court.
He shall—deputy. be, and hereby is, authorized to appoint a deputy, who may, in his absence, do and perform any and all the acts necessary in the administration of his office and the certification of the records of said court which he himself is authorized to do; also to appoint and fix the number—employees. and the compensation of the employees of said probate court and office of register of wills: *Provided,* That any expenditures incurred by him—expenditures. in so doing shall not be a charge upon the public treasury, but shall, together with his own compensation, be paid out of the revenues of the office of register of wills.
Sec. 122. Concealment of assets by strangers.—If an executor,Concealment of assets by strangers. administrator, or collector shall believe that any person conceals any part of his decedent’s estate, he may tile a petition in said court alleging such concealment, and the court may compel an answer thereto on oath: and if satisfied, upon an examination of the whole case, that the party charged has concealed any part of the estate of the deceased, the court may order the delivery thereof to the executor, administrator. or collector, and may enforce obedience to such order in the same manner in which orders of said court may be enforced, as hereinafter provided.
Sec. 123. Investment of funds.—The said court may, in its discretion,Investment of funds. order an executor, administrator, collector, or guardian, whom 1210 it may have appointed, to bring into court or invest in securities, to be approved by the court, any money or funds received by such executor. administrator, collector, or guardian; and if said party shall not, within a reasonable time, to be fixed by the court, comply with the order, his letters may be revoked. Concealment by executor or administrator.Sec. 124.
Concealment by executor or administrator.—If any person interested in any decedent’s estate shall by petition allege that the executor, administrator, or collector has concealed or has in his hands and has omitted to return in the inventory or list of debts any part of his decedent's assets, and the court shall finally adjudge and decree in favor of the allegations of the petition, in whole or in part, it shall order an additional inventory or list of debts, as the case may be. to be returned by the executor, administrator, or collector, and appraisement to be made accordingly, to comprehend the assets omitted, and the court may compel obedience to said order, and, if the same is not complied with, revoke the letters testamentary or of administration or of collection and order the bond of the executor, administrator, or collector to be put in suit.
Joint executors.Complaint of negligence of coexecutor, etc.Sec. 125. Joint executors.—If any joint executor, administrator, or collector shall apprehend that he is likely to suffer by the negligence or misconduct in the administration or the improper use or misapplication of the assets of the estate by any coexecutor, —revocation of authority to act, etc.coadministrator, or cocollector. he may make complaint to said court; and if said complaint shall be adjudged well founded, the court shall have authority, in its discretion, to revoke the powers and authority of the executor, administrator, or collector so complained of and to compel the delivery and surrender to the remaining executor, administrator, or collector of the assets and all books, papers, and evidences of debt of the estate that may be in the possession or control of the person so dismissed from the administration; and the remaining executors, administrators, or collectors shall be entitled to recover, in an action on the case, for any loss or damage they may suffer through the executor, administrator, or collector whose, powers shall have been revoked as aforesaid. —enforcement of duty.Sec. 126.
Enforcement of duty.—The court shall have power to order any executor, administrator, collector, or guardian who appears to be in default in respect to the rendering of any inventory or account or the fulfillment of any duty in said court to be summoned to appear therein and fulfill his duty in the premises, on pain of revocation of his letters testamentary or of administration or collection or of guardianship; and on his appearing the court may pass such order as may be just, and upon his failure, to appear, after having been duly summoned, may revoke his letters and make such further order and other appointment as justice may require.
Revocation of letters.Accounting, etc.Sec. 127. Revocation of letters.—Whenever said court shall revoke letters testamentary or of administration or of collection or of guardianship, it shall be the duty of the party whose letters may be revoked to render forthwith an account of his administration or guardianship up to the period of the rendition of said account and to deliver and turn over to the person appointed in his place all the estate, money and effects remaining in his hands that were received and held by him by virtue of his appointment so revoked; and all moneys in the hands of an executor, administrator, or collector realized by him by the. sale of the specific property shall be considered unadministered assets and be turned over in like manner; and the court may compel the performance of said duty in the manner hereinafter mentioned, and may direct the bond of said executor, administrator, or collector whose letters may be revoked to be put in suit for the use of the new administrator or collector appointed in his place. 1211 Sec. 128.
Counter security.—If any surety of an executor orCounter security. administrator shall apprehend himself to be in danger of suffering from the suretyship, he may apply to the probate court, and the said court may call upon the party to give counter security, to be approved by the court: and if the party so called on shall not, within a fixed—failure to give. reasonable time, give counter security, the court may order the property remaining in the hands of such executor or administrator to be delivered up to such surety, and the court may enforce the delivery by proper process; and an inventory of the property delivered to—inventory, etc. such surety shall be returned without delay, and the property contained in such inventory shall be by the said surety sold, distributed, and delivered up, as the case may require, under the immediate order of the court, as if such surety were executor or administrator; but inasmuch as it would be inconvenient to creditors and others interested in the estate, if there should be a double administration, the executor or administrator shall go on to discharge his trust, unless the court revoke his letters for some just cause, as herein-before directed, and he shall be answerable for the property in the same manner as if it were not on his default as aforesaid delivered to the surety: and he shall be entitled to sue the said surety and recover damages in case he shall suffer from the misconduct of such surety, in diminishing any part of the property, without obtaining an allowance for the same from the court; and the said surety shall bring into court, to be deposited with the register of wills, the money arising from the sale of any property as aforesaid, to be applied according to the meaning of this code.
Sec. 129. Enforcement of judgments, and so forth.—The saidEnforcement of judgments, etc. court, in addition to the powers hereinafter specially conferred, shall have power to enforce its judgments, orders, and decrees in like manner as orders and decrees may be enforced in the equity court. Sec. 130. Citation.—Upon the filing of a petition for probate ofCitation. a will a citation shall be issued to all persons who would be entitled to or interested in the estate of the testator in ease such will had not been executed to appear in said court on a day named, not earlier than ten days, exclusive of Sundays, after the filing of said petition, and show cause why the prayer of the petition should not be granted.
If said citation shall appear from the return thereof to have been served upon all said persons at least five days before the day named as aforesaid, the said court shall proceed, if no caveat be filed, to take the proofs of the execution of said will. But if any of the partiesPublication. interested, as aforesaid, as heirs, next of kin, or otherwise, shall be returned Not to be found, the said court shall cause not less than thirty days’ notice of the application of such probate to be published once in each of three successive weeks in some newspaper of general circulation in said District, and may order such other publication as the case may require, and shall cause a copy of such publication to be mailed to the last known post-office address of each of the parties so returned not to be found.
If the parties in interest, or any of them, be unknown, upon statement of that fact in the petition under oath, they may be described therein, and in the notice by publication, as the unknown heirs and next of kin of the decedent, with like effect as if known and specifically named in the petition, notice, and proceedings. Sec. 131. Probate.—On the day appointed as aforesaid, or suchProbate. subsequent day as the court may appoint, due proof of such publication and mailing being made, the court shall proceed to take proof of the will.
All the witnesses to such will who are within the District, and competent to testify must be produced and examined, or the absence of any of them satisfactorily accounted for. Sec. 132. Attesting witnesses.—Incase the will contains a deviseAttesting witnesses. of real estate, and any attesting witness thereto residing in the District 1212 is unable, from sickness, age, or other cause, to attend court, the register of wills may, with such will, attend upon said witness and take Where proof of signature sufficient.his testimony.
If the testimony of resident attesting witnesses or witness to such will shall have been taken, and any other such witness to said will shall reside out of the District or be temporarily absent there-from. but within the United States, it shall be sufficient to prove the signature of such witness so out of the District. If the sole witnesses to such will shall be out of said District as aforesaid, or if one or more should be within the United States and one or more be in some foreign country, then it shall be sufficient to take the testimony of any one or all within the United States, as the court may determine, and to prove the signatures of those whose testimony is not required to be taken.
If all such witnesses shall be out of the United States, then it will be sufficient to take the testimony of such of them as the court may require, and to prove the signature or signatures of the others. Commission to take testimony.The testimony of such witnesses out of the District to be taken here under shall he under a commission issued by the court to one or more competent persons, and in such ease the original will or codicil shall accompany the commission and be exhibited to the witnesses. —notice.No notice need be given of the time and place of taking such testimony. unless in a case in which probate is opposed.
Who may appear.Sec. 133. Who may appear.—Any person, although not cited, who may be interested in sustaining or defeating the will may appear and support or oppose the application to admit the same to probate. Admission to probate.Sec. 134. Admission to probate.—If, upon hearing the proofs submitted, the court shall be of opinion that the will was duly executed and the testator was competent to execute the same, and no caveat shall be tiled against the admission of the same to probate, the court shall decree that the said will be admitted to probate and record.
Probate by consent.Sec. 135. If all parties interested adversely to the will shall waive the notice aforesaid and consent that the will be admitted to probate and record, it may be so admitted to probate and record without the *Proviso*.—proof of execution required.proceedings directed as aforesaid: *Provided*, That in no case shall any will or testament be admitted to probate and record save upon formal proof of its proper execution. Caveat.Sec. 136. Caveat.—If. upon or prior to the hearing of the application to admit the will to probate, any party in interest shall tile a caveat in opposition, duly verified, and setting forth facts inconsistent with the validity of the will, the said will shall not be admitted to probate until the issues raised by said caveat shall be determined, as hereinafter directed. —time for filing.Sec. 137.
If, upon the hearing of the application to admit a will to probate, the court shall decree that the same be admitted to probate, any person in interest may tile a caveat to said will and pray that the probate thereof may be revoked at any time within three months after such decree, if it be a will of personal property, and as far as it is a will of personal property; and if it he a will of real estate, and as far as it is such will of real estate, any person interested actually served with process or personally appearing in such proceedings may file such caveat within one year after such decree: any person interested who at said time was returned “Not to be found” and was proceeded against by publication may file such caveat within two years after such decree; and any person interested who at the time of said decree is within the age of twenty-one years may file such caveat within one year after he becomes of age.
Infants interested.Sec. 138. Infants interested.—Whenever it shall appear that any party interested as aforesaid is under age. or non compos, the court shall appoint a guardian ad litem to represent said party at the hearing 1213 of the application to admit the will to probate, and with authority to file a caveat, as he may be advised, in behalf of said party. Sec. 139. Plenary proceedings.—The court may, in all cases ofPlenary proceedings. controversy therein, direct a plenary proceeding to be had, by bill or petition, to which there shall be answer under oath, which may be compelled by the usual process, and all the depositions shall be taken down in writing and tiled; or, if either party shall require it, the court shall direct an issue to be macle up to be tried by a jury.
Sec. 140. Trial of issues as to wills.—Whenever any caveatTrial of issues as to wills. shall be tiled issues shall be framed under the direction of the court for trial by jury: *Provided*, That in all cases in which all persons interested*Proviso.*—without a jury. are sui juris and before the court the issues may be tried and determined by the court, without a jury, upon the written consent of all such parties. If they are to be tried by a jury they shall be triable—by a jury. in said probate court; and at least ten days prior to the time of trial all of the heirs at law or next of kin of the decedent, or both together, as the case may require, and all persons claiming under the will shall be each served with a copy of said issues and a notification of the time and place of the trial thereof.
If any one of them be an infant or of unsound mind he shall have a guardian ad litem appointed for him by the court before such trial shall proceed. If, as to any party in inter-est, the notification shall be returned “Not to be found.” the court shall assign a new day for such trial, and shall order publication, at least twice a week for a period of not less than four weeks, of a copy of the issues and notification of trial, in some newspaper of general circulation in the District, and may order such further publication as the case may require.
And the supreme court of the District of Columbia may fromService. time to time prescribe and revise rules and regulations for service personally upon such party outside of the District of Columbia of a copy of such issues and notification. Personal service on absent parties shall not be essential to the jurisdiction of the court. Before the time ofJurors, etc. trial the justice holding said court shall direct twenty-four jurors to be drawn for service in said court, having the qualifications prescribed by law, in the manner provided by law for the drawing of jurors to serve in the circuit court.
The proceeding for impaneling a jury for the trial of said issues shall be the same as if they were being tried in the said circuit court. In all cases in which such issues shall be tried the verdict of the jury and the judgment of the court thereupon shall, subject to proceedings in error and to such revision as the common law provides, be res judicata as to all persons; nor shall the validity of such judgment be impeached or examined collaterally. When a jury is sworn for such trial the other jurors who have been summoned, but not sworn for such trial, shall be discharged and their names returned to the jury box.
Any jury so sworn may also be employed in the trial of other issues pending in said court not relating to wills, and also, if the parties interested shall consent, in the trial of issues relating to wills other than those for the trial of which they were specifically summoned. Any jury summoned for service in any of the circuit or criminal courts of the District may, with the concurrence of the justice presiding in said court, be used for the trial of issues in the probate court.
Sec. 141. Re-probate of wills affecting real estate.—That theSections not applicable to wills probated before June 8, 1898, etc. foregoing sections shall not apply to wills and testaments offered for probate prior to the eighth day of June, anno Domini eighteen hundred and ninety-eight, and in cases of intestacy shall apply only to the estates of such persons as shall have died after said date and shall hereafter die: *Provided,* That any person interested under any will*Proviso.*Re-probate of wills affecting real estate. filed in the office of the register of wills for the District of Columbia prior to said date may offer the same for probate as a will of real 1214estate, whereupon such proceedings shall be had as by this code are authorized in regard to wills offered for probate after said date.
Sec. 142. Trial of other issues.Trial of other issues.—The trial of other issues, pending in said court, than such as relate to the execution or validity of wills shall also be had in said court; and no person shall be required to serve as a juror more than twenty secular days in any one year, except in a trial pending and not determined when said term of twenty days expires; and such length of service shall exempt him from further service in the supreme court of the District for one year from the commencement of said service.
For the trial of issues not relating to wills the justice holding said court shall have authority to fix the time of trial and determine the notice thereof to be given. Sec. 143. Costs.Costs.—The said court shall have authority to render judgment for costs against the unsuccessful party in any trial conducted in said court and to issue execution therefor. Sec. 144. Depositions, judgment, and appeal.Depositions, judgment, and appeal.—The said court shall have authority to issue commissions to take the testimony of non-resident witnesses, and such depositions, as well as depositions de bene esse, taken according to law, may be read at the trial of any issue in said court.
On the trial of any such issue exceptions may be taken to the rulings of the court, and the said court may set aside the verdict and grant a new trial for the same causes and in the same manner as in case of a trial in the circuit court. Unless the same be reversed, any final order or decree admitting a will to probate shall be conclusive evidence of the validity of such will in any collateral proceeding in which such will may be brought into question, and a transcript of the record of such will, and of the decree admitting the same to probate, shall be sufficient proof thereof.
Sec. 145. Arbitration.Arbitration.—The said court shall have power, with the consent in writing of both parties, to arbitrate between a complainant and an executor or administrator, or between an executor or administrator and a person against whom the estate represented by him has a claim, or, with like consent, may refer the matter in dispute to an arbitrator. If reserved by the parties in their submission, exception as to matters of law may be filed to the award of such arbitrator, and the court may confirm or overrule the award, and said award, when confirmed, shall be conclusive between the parties.
Sec. 146. Sale of real estate to pay debts and legacies.Sale of real estate.—The. said court shall have plenary authority to administer also the real estate situated in the District of Columbia of decedents so far as may be necessary for the payment of debts and legacies, and to distribute among those entitled thereto any surplus proceeds of any sale of real estate made in the course of such administration, and the bonds hereafter executed of all executors and administrators shall be responsible for the proceeds of sale of all real estate sold by them under the order of the said justice for such *Proviso.*—qualifications.purposes of administration: *Provided, however*, That no such sale shall be made unless the same be required for the, purposes of paying debts and such legacies as are chargeable upon the real estate, nor until the auditor of the court shall have ascertained and reported a deficiency of personal assets for such purposes: and such report shall be subject to exception.
Sec. 147. No sale if bond given, etc.An order for the sale of the real estate shall not be granted if any of the persons interested in the estate shall give bond to the United States, with security to be approved by said court, conditioned to pay all the debts or legacies, or both, as the case may be, that shall eventually be found due, and the costs of administration. Sec. 148. Surplus after sale deemed real estate; distribution.If the said court shall be satisfied, upon a report of the auditor, that it is necessary to sell said real estate, or part thereof, it 1215shall authorize the same, or so much thereof as may be necessary for the payment of the debts or legacies, or both, to be sold by the executor or administrator, on such terms as the court may direct.
Any surplus of the proceeds of such sale, after payment of debts and legacies and costs of administration, shall be deemed real estate, and shall be distributed among the heirs or devisees as the right may appear. Sec. 149. Widow’s dower.—Where there shall be a widow entitled Widow’s dower.to dower in the real estate of the decedent, the court, before authorizing a sale of said real estate, shall issue a commission to one or more suitable persons to set off and assign her dower out of such estate, and her dower shall be assigned to her; or, if the court shall find the widow’s dower can not be set off without injury to the property, if she shall consent thereto by her answer to the petition, the real estate may be sold free of her dower, and she shall receive out of the proceeds a commutation of her dower according to the practice in equity.
Sec. 150. Guardians.—The said court shall have power to appoint Guardians.a guardian or guardians to any infant orphan entitled to any property, real, personal, or mixed, within the District, or whose person and residence may be within the District, except where such orphan may have a testamentary guardian. Sec. 151. Bond.—The court shall require of guardians so appointed, Bond of.and of testamentary guardians, unless it be otherwise directed by the will appointing them. bond, with sufficient security, conditioned for the due discharge of their duties.
Sec. 152. When any infant whose father or mother may be living —of father or mother of infant.shall, by gift or otherwise, be entitled to any property, the court may require the father or mother, as guardian, to give bond and security to account for the property, and on his or her failure or refusal so to do may appoint another person guardian, who shall give bond as in other cases. Sec. 153. The court may at any time require any guardian to give Additional bond.bond or additional bond, when the interests of the infant require it, and on his failure or refusal so to do may revoke his appointment and appoint another guardian in his place, and require the estate of the infant to be forthwith delivered to the newly appointed guardian, and may direct him to bring suit upon the bond of his predecessor.
Sec. 154. Counter security.—If any surety of a guardian shall by Counter security.petition set forth that he apprehends himself to be in danger of loss in consequence of his suretyship, and shall pray the court that he may be relieved, the court, after summoning the guardian to answer said petition, may require him to give counter security to indemnify his original surety or to deliver his ward's estate into the hands of the surety or of some other person; in either of which cases the court shall require sufficient security to be given by the person into whose hands said estate shall be delivered, and make such other order as may seem just.
Sec. 155. Election of guardian.—Every orphan or other infant Election of guardian.to whom said court is authorized to appoint a guardian shall be entitled. on arriving at the age of fourteen years, notwithstanding any appointment of guardian before made by the court, to elect a guardian for himself; but such guardian must be approved by the court and shall be required to give bond as in other cases, and be subject to the control of the court as other guardians are. Sec. 156. Sale or exchange of infant’s real estate.—Whenever Sale or exchange of infant’s real estate.—tiling of bill.the guardian or, in case of his refusal to act. a next friend of any infant shall deem that the interests of the ward will be promoted by a sale of his freehold or leasehold estate in lands, for the purpose of reinvesting the proceeds in other property, or by an exchange of his said property for other property, he may file a bill in said court, verified 1216by his oath, setting forth all the estate of said infant, real and personal, and all the facts which, in his opinion, tend to show whether the infant's interest will be promoted by said sale or exchange or not.
Sec. 157. —answer, etc.The infant, together with those who would succeed to the estate if he were dead, shall be made parties defendant; and it shall be the duty of the court to appoint some fit and disinterested person to be guardian ad litem for the infant, who shall answer the bill under oath. The infant also, if above the age of fourteen, shall answer the bill in proper person, under oath. Sec. 158. —proof, etc.Every fact material to determine the propriety of such sale or exchange shall be clearly proved by disinterested witnesses, whose testimony shall be taken in writing in the presence of the guardian ad litem or upon interrogatories agreed upon by him.
Sec. 159. —decree of sale.If the court shall be satisfied from the evidence that the interests of the infant require a sale or exchange, as prayed, and the rights of others will not be violated thereby, such sale, or exchange may be decreed, and the costs of the suit shall be paid out of the infant’s estate; otherwise they shall be paid by the complainant. Sec. 160. —disposition of proceeds. etc.Any such sale may be made upon such terms as to cash and credit as the court may direct, and a lien shall be retained on the property sold for the purchase money; and the proceeds of such sale shall be invested for the infant's benefit in other real estate or in such other manner as the court may direct; and if the infant, after any such sale, shall die intestate or under twenty-one years of age, the proceeds of such sale, or so much thereof as may remain at his death, if not reinvested in other real estate, shall bo considered as real estate, and shall pass accordingly to such persons as would have been entitled to the estate if it had not been sold.
Sec. 161. Court not bound to require equality in quantity of estate, etc.In decreeing an exchange of the infant's estate for other property the court shall not be bound to require equality or sameness in the quantity or character of the estate or interest, and the court may appoint trustees to execute the deeds necessary to carry such exchange into effect. Sec. 162. Sale of estate or remainder.Sale of particular estate or remainder.—Where an infant is entitled to a particular estate, as for life or years, and another person is entitled to an estate in remainder or reversion in the same property, or such other person is entitled to the particular estate and the infant is entitled in remainder or reversion or by way of executory devise, the court shall have the same power to decree a sale or exchange *Proviso.*as aforesaid, having reference solely to the interests of the infant: —consent to sale, etc.*Provided*, The other person so interested will consent to such sale or exchange and execute the conveyances necessary to carry the same into effect.
And the court shall direct the annual income from the fund or propertv acquired by such sale or exchange to be applied according to the interests of the respective parties. And in ease of the death of said infant under twenty-one years of age the proceeds of any such sale not invested in real estate shall be deemed real estate and pass to those who would be entitled if the property had not been sold. Sec. 163. Lease of infant’s estateLease of infant's estate.—In cases where it shall appear to the court, by proof taken in a similar proceeding to that provided for in the foregoing sections, that it will be to the advantage of the infant that his real estate shall be demised, the said court shall have the power to decree that the same be so demised for a term of years not to exceed the minority of the infant, yielding such rents and on *Proviso.*Consent to decree, etc.such terms and conditions as the court may direct: *Provided,* That where the infant is entitled only to a part of the estate, as tenant of the particular estate, or remainder-man, or otherwise, all the other owners of the other interests assent to the passing of such decree.
Sec. 164. Mortgage of infant’s estate.Mortgage of infant’s estate.—In cases where it shall appear to the court by proof, as provided in the foregoing section, that it would be for the benefit and advantage of the infant to raise 1217money by mortgage to improve his real property or to pay off charges, liens, or incumbrances thereon, the court may, on the application of the guardian or of the infant by next friend, decree a conveyance of said property, by mortgage or deed of trust, to be executed by the guardian, on such terms as may seem to the court expedient: and this section shall apply to cases where the infant holds jointly or in common with other persons of full age or holds a portion of the estate, as a particular estate, for life or years or in remainder or reversion: *Provided*, That the other owners interested, all being of full age, will *Proviso.*Consent to decree.consent to such decree and unite in said mortgage or deed of trust.
Sec. 165. Sale of infant’s principal fob maintenance, and so Sale of infant’s principal for maintenance. etc.forth.—Wherever it shall appear, upon the petition of the infant by next friend or of the guardian of an infant, and the appearance and answer of such infant by guardian to be appointed by the court, and proof by depositions of one or more disinterested witnesses, that a sale of the principal of the infant’s estate, or of some part thereof, whether real or personal, is necessary for his maintenance or education, regard being had to his condition and prospects in life, the said court may decree such sale on such terms as to it may seem proper.
Sec. 166. Indigent boys.—The court shall have power to appoint Indigent boys.guardians to indigent boys for the purpose of securing their enlistment in the naval or marine service of the United States, as provided by law. free of all costs on account of such proceeding. Sec. 167. Lunacy proceedings.—All writs do lunatico inquirendo Lunacy proceedings.shall issue from said probate court, and the justice holding said court shall preside at all inquisitions of lunacy, and, when necessary, may use a jury from either the circuit or criminal court, or may cause a special jury to be summoned for such inquisitions.
Sec. 168. Estates of lunatics.—The said court shall have full Estate of lunatics.power and authority to superintend and direct the affairs of persons non compos mentis, and to appoint a committee or trustees for such persons, and to make such orders and decrees for the care of their persons and the management and preservation of their estates, including the collection, sale, exchange, and reinvestment of their personal estate, as to the court may seem proper. The court may, upon such Release of dower of.terms as under the circumstances of the, case it may deem proper, decree the conveyance and release of any right of dower of a person non compos mentis, whether the same be inchoate or otherwise.
Sec. 169. The court shall have the same power in respect of the Power of court the same as with infants, etc.freehold or leasehold estates of such persons as is provided for in relation to the estates of infants, to be exercised upon the application of the guardian, trustee, or committee of such person; and upon the death of any such person non compos mentis the proceeds of any sale of his estate which may have been invested otherwise than in real estate shall be deemed real estate, and shall descend as the property or estate would if it had not been sold.
Sec. 170. The said court may order any part of the estate of a person Sale.non compos —ratification of sale necessary.mentis, for whom a committee, guardian, or trustee has been appointed, to be sold, when necessary for his maintenance, upon application of said committee, guardian, or trustee, and full proof of the necessity of such sale. Upon the application of any judgment creditor of a person non compos mentis the court may decree a sale of the real or personal estate of such non compos mentis, or such part thereof as may be necessary to pay the claim of such creditor, upon being satisfied that such claim is just and there are no other means of paying the same.
Sec. 171. No sales of the property of infants or persons non compos mentis made by authority of the aforegoing sections shall be valid and effectual to pass title to the property sold until they have been reported to and ratified by the court. 1218 Sec. 172. Drunkards.—appointment of committee to manage estate of.Drunkards.—Whenever any person residing in said District, and owning any estate, real or personal, situate therein, is unfit from the habitual use of intoxicating liquors to properly manage or control the same, the said court, on the petition of any creditor or relative of such person, or if there be no creditor or relative, upon the petition of any person living in said District, and upon summons being regularly served upon such person so alleged to be unlit to manage or control his property as aforesaid, commanding him to appear and answer such petition, may order a jury to be summoned to ascertain whether such person be an habitual drunkard and unfit from that cause to manage and control his property, and if the jury shall find that such person is an habitual drunkard and unfit to manage or control his property, such finding when confirmed by the court, shall be entered of record in said cause, and it shall be the duty of the court thereupon to appoint some fit person to be committee of the person so declared unfit to manage or control his property as aforesaid. —bond of committee.Such committee before entering upon the discharge of his duties shall execute a bond, with surety, to be approved by the said court or one of the justices thereof, to the United States in a penalty equal to the amount of the personal property and the yearly rents to be derived from the real estate of such person, conditioned for the faithful —powers, etc.performance of his duties as such committee; and he shall have control of the said estate, real and personal, with power to collect all debts due said drunkard, and to adjust and settle all accounts owing by him, and to sue and be sued in his representative capacity.
He shall apply the annual income of the estate of such habitual drunkard to the sup-port of said person, and the maintenance of his family and education of his children: and shall in all other respects perform the same duties and have the same rights as pertain to committees of lunatics and idiots. Restoration to drunkard of his estate, etc.When any person for whom a committee has been appointed under the provisions of this section shall become competent to manage his property on account of reformation in his habits, he may apply to said court to have said committee discharged and the care and control of his property restored to him: and if it shall appear by the verdict of a jury summoned therefor, or by affidavits, or other evidence to the satisfaction of the court, that said applicant is a fit person to have the care or control of his property, an order shall be entered restoring such person to all the rights and privileges enjoyed before said committee was appointed.
Sec. 173. Apprentices.Apprentices.—The said probate court shall also have authority to approve contracts of apprenticeship, to determine questions between masters and apprentices, and to protect the rights of apprentices, as herein elsewhere provided for. Sec. 174. Clerk of Supreme Court.—oath. etc.—powers.The clerk.—The clerk of said supreme court shall take the oath and give bond, with security, in the manner prescribed by law for the clerks of the. district courts of the United States.
The said clerk shall have power to appoint assistant clerks, at such compensation as may be authorized by the supreme court of the District of Columbia in general term, and may assign any of the assistant clerks in his office to duty in the said general or special terms of the court, except in the Assistant clerk may act, etc.probate term. Any of the duties of the clerk may be performed in his name by any of the assistant clerks, and such assistants may sign the name of the clerk to any process, certificate, and other official act required by law or by the practice of the court to be performed by the clerk, and may authenticate said signature by affixing the seal of the court thereto when the seal is necessary to its authentication.
In such cases the signature shall be— — —, Clerk, By — —, Clerk, 1219 Sec. 175. Costs.—At the commencement of every suit in said supreme Costs.court the plaintiff shall deposit at least ten dollars with the clerk, to be appropriated toward the costs of the suit; and the court is hereby authorized to prescribe rules as to any further costs to be paid by either the plaintiff or defendant during the progress of the case, and as to the collection thereof. Upon the termination of the case any surplus of costs shall be refunded by the clerk.
The defendant in any suit instituted by a nonresident of the District Defendant may require nonresident plaintiff to give security, etc.of Columbia, or by one who becomes such after the suit is commenced, may, upon notice served on the plaintiff or his attorney, at any time after service of process on the defendant, require the. plaintiff to give security for all costs and charges that may be adjudged against him on the final disposition of the cause. But such right of the defendant shall not entitle him to delay in pleading, and his pleading before the giving of such security shall not be deemed a waiver of his right to require such security for costs.
In case of noncompliance with the foregoing requirements, within a time to be fixed by the court, judgment of nonsuit or dismissal shall be entered. The security required may be by an undertaking, with security, to be approved by the court, or by a deposit of money in amount to be fixed by the court. A nonresident may, at the commencement of his suit, deposit with —deposit by nonresident as security for costs.the clerk such sum in money as the court shall deem sufficient as security for all costs that may accrue in the cause, which deposit may afterwards be increased on application, in the discretion of the court: —qualifications.*Provided*, That this section shall not apply to proceedings in the probate term, in which all deposits and costs as now required by law. and the orders of said term, shall be paid to the register of wills as heretofore.
Sec. 176. Poor suitors.—Suits may be prosecuted by poor persons upon the order of the court, or of one of the justices, passed upon satisfactory evidence of inability to make such deposit, without making the deposit prescribed by the preceding section. Sec. 177. Costs payable immediately.—All costs and fees for services Costs payable immediatelyrendered by the clerk and the register of wills and chargeable to others than the United States shall be payable immediately after the services are performed, and shall be collected by such rules and regulations, not incompatible with law, as may be prescribed by the court, but shall in no case be paid by the United States.
The District of The District exempt, etc.Columbia shall not be required to pay fees to the clerk of the court of appeals of the District, or to the marshal of the District, and shall be entitled to the services of said marshal in the service of all civil process. Sec. 178. The clerk shall have power to administer oaths in all cases Fees of clerk for acknowledging deeds. etc.and also to take the acknowledgment of deeds, and shall receive the same fees for the latter service as other officers authorized to take such acknowledgments.
Sec. 179. Salary.—The salary and compensation of the clerk shall —salary.not exceed the sum of five thousand dollars per annum, and the excess of fees received by him above said salary, after defraying thereout the necessary expenses of his office, shall be paid into the Treasury of the United States. Sec. 180. Returns to Treasury.—The clerk shall make semiannual —returns to Treasury.returns of the amount of fees received by him to the Secretary of the Treasury. His accounts of his earnings and expenses shall be adjusted by the regular auditor of the court, or by a special auditor to be appointed by the court for the purpose, within thirty days after the first day of January and July in each year; and the auditor shall immediately report his adjustment to the court, with such exceptions thereto as the clerk shall, within four days after such adjustment, take and file with the auditor.
The court shall pronounce such decree upon the 1220report and exceptions as may seem to it equitable and just, and such decree shall be tinal and binding on the United States and the clerk. Sec. 181. Accounting.Accounting.—If upon such account a balance be found due from the clerk to the United States, the court shall order payment by the clerk into the Treasury, and enforce its order by execution, process of contempt, or otherwise; and if the clerk refuse to pay the money, shall remove him from office.
Sec. 182. If a balance be found due from the United States to the clerk, the same shall be paid upon presenting to the Treasurer a copy of the decree duly certified. The clerk shall, as in other eases to which the United States is a party, furnish the Solicitor of the Treasury a copy of the decree immediately after it is pronounced. Sec. 183. United States attorney for the District of Columbia.United States attorney for the District of Columbia.—There shall be an attorney for the United States for the District, who shall be appointed by the President of the United States, by and with the advice and consent of the Senate, and who shall take the oath and perform all the duties required of district attorneys of the United States.
Sec. 184. —may administer oaths, etc.The district attorney and every assistant or deputy duly appointed by him is empowered to administer oaths or affirmations to witnesses in criminal eases and in all cases where a justice of the peace —penalty for false oath.is authorized to do so; and if any person to whom such oath or affirmation shall be administered shall willfully and falsely swear or affirm touching any matter or thing material to the point in question whereto he shall be examined, he shall be deemed guilty of perjury, and upon conviction thereof shall be sentenced to suffer imprisonment at hard labor for the first offense for not less than two nor more than ten years, and for the second offense for not less than five nor more than fifteen years.
Sec. 185. Clerks, etc., to attend criminal court.The clerk, marshal, and district attorney shall attend the criminal court and perform all the duties required of them by law in relation to the criminal business of the court. The clerk of the court in which any proceeding for divorce shall be instituted shall immediately notify the United States attorney of the institution of such proceeding, and it shall be the duty of said attorney to enter his appearance therein in order to prevent collusion and to protect public morals.
Sec. 186. Marshal.The marshal.—There shall continue to be a marshal for the District, who shall be appointed by the President of the United States, by and with the advice and consent of the Senate, for the same term, take the same oath, give bond with security in the same manner, and have generally, within the District, in addition to the powers and duties herein imposed upon him. the same powers and perform the same duties as provided for by the general statutes relating to marshals of the United States.
Sec. 187. —lees.The fees and emoluments herein elsewhere authorized shall be charged for services rendered by the marshal of the District, and collected as far as possible, and covered into the Treasury of the United —salary.States; and the said marshal shall be paid in full compensation for all services rendered by him a salary of five thousand five hundred dollars per annum. Sec. 188. —of bailiffs, etc.The marshal shall pay to each bailiff and crier, and to each deputy marshal performing the duties of a bailiff or crier, who shall be required to attend upon the several terms of said court, one hundred dollars per month, and to each messenger appointed for the several courts, sixty dollars per month, said payments to be allowed in said marshal's accounts.
Sec. 189. Vacancies.Vacancies.—In case of a vacancy in the office of United States attorney or marshal for the District of Columbia, the supreme court of the District of Columbia may appoint persons to exercise the duties of such officers until such vacancy shall be filled. 1221 Sec. 190. The coroner.—There shall continue to be a coroner of Coroner.said District, who shall be appointed by the President of the United States, by and with the advice and consent of the Senate, and shall receive a salary of one thousand eight hundred dollars per annum.
Sec. 191. Bond.—The coroner before he acts as such shall, within —bond of.thirty days after his appointment, give bond to the United States, with security to be approved by the said supreme court and deposited with the clerk thereof, in the penalty of three thousand dollars, with a condition that he will well and truly execute the duties of his office, and well and faithfully execute and return all writs or other process to him directed, and will also pay and deliver to the person or persons entitled to receive the same all sums of money and all goods and chattels by him levied upon, seized, or taken, agreeably to the directions of the writ or process under which the same shall have been levied upon, seized, or taken, and shall also satisfy and pay all judgments which may be rendered against him as coroner.
Sec. 192. Duties.—It shall be the duty of the coroner to hold an —duties.inquest over any person found dead in the District when the manner and cause of death shall not already be known as accidental or in the course of nature. He shall make a monthly report to the Commissioners of the District of all inquests held by him during the month last past before said report, with a description as far as may be of the age, sex, color, and nationality of persons and the causes of their death, with such particulars as may be necessary to their identification; and as soon as possible after holding such inquest he shall deliver to the property clerk of the police department all moneys and other property and effects found upon the person of anyone on whom he shall hold an inquest.
Sec. 193. He shall not summon any jury of inquest over the body Accidental deaths.of a deceased person where it is known that the deceased came to his death by accident, mischance, or natural causes. Sec. 194. Witnesses.—Witnesses may be summoned and compelled Witnesses.by the coroner to attend before him and give evidence, and shall be liable in like manner as if the summons had been issued by a justice of the peace. And it shall be his duty, upon every inquisition taken before him, where any person is charged with having unlawfully caused the death of the person on whom the inquest is held, to reduce the testimony of the witnesses to writing, and if the jury find that murder or manslaughter has been committed on the deceased, he shall require such witnesses as he thinks proper to give a recognizance to appear and testify in said supreme court, and shall return to said court the said inquisition and testimony and recognizance by him taken.
Sec. 195. There shall be paid to the jurors and witnesses who may Pay of jurors and witnesses.be lawfully summoned in any inquest the same fees and compensation as are allowed to the jurors and witnesses attending the supreme court. A coroners jury shall consist of six persons.Six persons to constitute jury.Deputy coroner. Sec. 196. Deputy coroner.—The Commissioners of said District shall have authority to appoint a deputy coroner, who shall assist the coroner in the performance of his duties aforesaid, and shall perform the same duties in case of the absence or disability of the coroner.
He shall, while acting, receive compensation ata rate not exceeding five dollars per day, to be paid as other expenses of said District, and he shall give bond in the penalty of two thousand five hundred dollars, with security to be approved by the said supreme court, conditioned for the due performance of his duties. Sec. 197. When to execute process.—Whenever the marshal is When coroner to execute process.a party to any cause or interested therein, or it is unfit on other grounds that he should serve and execute the process to be issued therein, such process shall be issued to the coroner, and he shall be paid the same fees and compensation for serving and executing the 1222same which would be payable to the marshal in similar cases, and shall account therefor to the Treasury of the United States.
And if he shall fail in the proper performance of his duties in the premises, like redress may be had against him, his sureties, and his and their heirs, devisees, and personal representatives, as could have been had against the marshal, his sureties, and his and their heirs, devisees, and personal representatives. for a like failure on the part of said marshal. Sec. 198. Jurors.Commission to make list.Jurors.—The clerk of the supreme court of the District of Columbia, the United States marshal, and the collector of taxes for said District are hereby constituted a commission to from time to time make the list of jurors for service in said court and fix the number of jurors to be listed therefor.
Sec. 199. From where selected.The said jurors shall be selected, as nearly as may be, from the citizens in the different parts of the District. Sec. 200. Jury box.Jury box.—The names shall be written on separate and similar pieces of paper, which shall be so folded or rolled up that the names can not be seen, and placed in a box to be provided for the purpose. Sec. 201. —sealing, etc.The box shall be sealed and, after being thoroughly shaken, shall be delivered to the clerk of the supreme court for safe-keeping.
Sec. 202. Term of service.Term of service.—The respective terms of service of jurors drawn for service in the circuit court, or as petit jurors in the criminal court, shall begin on the first Tuesday of October, December, February, April, and June of each year, and shall terminate on the Monday preceding the first Tuesday of the second month thereafter, except when the jury shall be discharged by the court at an earlier day. or when a jury shall be impaneled and it shall happen that no verdict shall be found, nor the jury otherwise discharged before the day appointed by law for the commencement of the next succeeding term, in which case the court shall proceed with the trial by the same jury in every respect as if said term had not commenced; and all proceedings to final judgment, if such judgment shall be rendered, shall be entered and have legal effect and operation as of the term at which the jury shall have been impaneled.
Sec. 203. —grand jury.The term of service of the grand jury in the criminal court shall begin with each term of that court, and shall end with such term unless the jury shall be sooner discharged by the court. Sec. 204. Drawing jurors.Drawing jurors.—At least ten days before the first Tuesday of each month specified in section two hundred and one when jury trials are to be bad, the clerk shall publicly break the seal of the jury box and proceed to draw therefrom the names of twenty-six persons to serve as jurors in each of the circuit courts, and of twenty-six other persons to serve as petit jurors in each of the criminal courts: and at least ten days before the commencement of each term of the criminal courts, the names of twenty-three persons, required to serve as grand jurors in said criminal courts, shall be drawn in like manner.
Sec. 205. —death, etc., of person drawn.If any person whose name is drawn from the box shall have died or removed from the District, the clerk shall destroy the slip containing the name of such person, and in such case, or if any person has become otherwise disabled or excused from serving as a juror, the clerk shall draw from the box the name of another person to serve in his stead. Sec. 206. Resealing box after drawing, etc.After the requisite number of jurors shall have been drawn the jury box shall be again sealed and remain in the custody of the clerk, and the names of the persons drawn shall not be placed again in the box for one year, unless said jurors shall be excused or for other reasons shall fail to serve.
Sec. 207. Exemption from further service, etc.Any person who shall have been regularly drawn as a juror and shall thereupon have served as such for the period of twenty days or more shall be exempt from further service as a juror in said 1223court for the period of one year from the beginning of his said term of service; but nothing herein contained shall render said juror ineligible to serve during said year, except that no person shall serve as a juror for two consecutive terms.
Sec. 208. If any persons selected as jurors can not be found, or shall prove to be incompetent, or shall Drawing to fill vacancies, etc.be excused from service by the court, the clerk, under the direction of the court, shall draw from the box the names of other persons to take their places. And if. after the organization of the jury, any vacancies occur therein, they shall be filled in like manner. Sec. 209. If at any time during the impaneling of a jury, in any —to fill regular panel.other than a capital case, the regular panel, by reason of challenge or otherwise, shall be exhausted before the jury is complete the court may, in its discretion, direct the clerk to draw from the box the names of other persons to serve as jurors and cause them to be summoned, or order the marshal to summon as many talesmen as may be necessary to complete the jury.
Sec. 210. It shall be the duty of the marshal, at least five days before Notice of selection as juror.the meeting of the court for which a jury is required, to notify each person drawn by serving on him a notice in writing of his selection as a juror of the court he is to attend and of the day and hour when he is to appear. Such notice shall be given to each juror in person or be left at his usual place of residence. Sec. 211. A copy of the notice, with his certificate stating when and in —copy to he returned to the court.what manner the original was served, shall be returned by the marshal to the court before the commencement of the term for which the jurors were drawn.
Sec. 212. Defaults.—If any person selected as a juror and duly Defaults.notified to attend shall, without sufficient cause, neglect to attend agree-ably to notice he shall be fined by the court in a sum not exceeding twenty dollars for every day that he shall be absent during the sitting of the court. Sec. 213. Frauds—If any officer shall put on or leave off the list Frauds.—penalty to officers.the name of any person at his own request or on the request of any other person, or shall be guilty of any fraud or collusion with respect to the drawing of jurors, he shall be deemed guilty of a misdemeanor, and shall be punished by a fine of not less than one hundred dollars or imprisonment in the District jail not less than sixty days, or both, for each offense. , Sec. 214.
If the clerk of the court shall willfully draw from the box —clerk of the court.a greater number of names than is required by the court, in accordance with the law, or shall put any name into the box after the same has been delivered to him, or shall be guilty of any fraud or collusion in regard to the drawing of jurors, he shall be deemed guilty of a misdemeanor, and shall be punished by a tine of not less than one hundred dollars or imprisonment in the District jail not less than sixty days, or both, for each offense.
Sec. 215. Qualifications.—No person shall be competent to act as Qualifications of jurors.a juror unless he be a citizen of the United States, a resident of the District of Columbia, over twenty-one and under sixty-five years of age, able to read and write and to understand the English language, and a good and lawful man, who has never been convicted of a felony or a misdemeanor involving moral turpitude. Sec. 216. Excuses.—A person may be excused by the court from Excuses.serving on a jury when for any reason his interests or those of the public may be materially injured by his attendance, or when he is a party in any action or proceeding to be tried or determined by the intervention of a jury at the term for which he. may be summoned, or where his own health or the death or sickness of a member of his family requires his absence. 1224 Sec. 217.
Exempt from duty.All executive and judicial officers, salaried officers of the Government of the United States and of the District of Columbia and those connected with the police or tire departments, counselors and attorneys at law in actual practice, ministers of the gospel and clergy-men of every denomination, practicing physicians and surgeons, keepers of hospitals, asylums, almshouses, or other charitable institutions created by or under the laws relating to the District, captains and masters and other persons employed on vessels navigating the waters of the District shall be exempt from jury duty, and their names shall not be placed on the jury lists.
Sec. 218. Attorneys.Attorneys.—The said supreme court shall have full power —qualifications, etc.and authority, from time to time, to make such rules as it may deem proper respecting the qualifications, examination, and admission of attorneys to practice in said court; and every person so admitted, before he shall be at liberty to practice therein, shall take the following oath: —oath of.“I, A B, do solemnly swear that I will honestly demean myself in the practice of an attorney uprightly and according to law. and that I will support the Constitution of the United States.
So help me God.” Sec. 219. —refusal to deliver money collected.Any attorney receiving or collecting the money of his client and refusing unlawfully to pay the same when demanded may be proceeded against in a summary way on notice by said court, which may suspend him from practice or dismiss him from its bar. Sec. 220. —suspension, etc., for moral turpitude.Each of the courts in said District may suspend or dismiss from its bar any attorney who shall be convicted of any offense involving moral turpitude.
Subchapter Four. Court of Appeals.THE COURT OF APPEALS. Sec. 221. Constitution.Constitution.—The court of appeals of said District shall continue as at present organized, and shall consist of one chief justice and two associate justices, who shall be appointed by the President, by and with the advice and consent of the Senate, and shall hold office during good behavior. Sec. 222. Salaries of justices.Salary.—The said justices shall each receive an annual salary of six thousand dollars, payable quarterly at the Treasury of the United States, except the chief justice, who shall receive six thousand five hundred dollars.
Sec. 223. Oath.Oath. Each of said justices, before he enters upon the duties of his office, shall take the oath prescribed by law to be taken by the judges of the courts of the United States. Sec. 224. Clerk.Clerk.—There shall be a clerk of said court of appeals, to be appointed by the court, who shall receive as compensation for his services, in the discretion of the court, an annual salary not to exceed the sum of three thousand dollars, payable monthly at the Treasury of the United States, and who shall give bond, such as the court may determine to be satisfactory, for the faithful performance of his duties, and his duties shall be such as the court may from time to time Deputy.prescribe.
The said clerk of the court of appeals shall, with the approval of the court, appoint one assistant or deputy clerk, who shall receive as compensation for his services, in the discretion of the court, an annual salary not to exceed the sum of two thousand dollars, payable monthly at the Treasury of the United States, and who may sign the name of the clerk to any official act required by law or by the practice of the court to be performed by the clerk, and may authenticate said signature by affixing the seal of the court thereto when the impress of the seal is necessary to its authentication.
In such case the signature shall be— — — Clerk, By — — Assistant Clerk. 1225 The court shall regulate from time to time the fees to be charged by Fees. etc.the said clerk, which shall be accounted for at least once in each quarter and paid into the Treasury of the United States, and said clerk shall receive such allowance for necessary expenditures in the conduct of his office as the court may determine by special or general order in the premises, but not to exceed the sum of five hundred dollars in any one year, payable, as aforesaid, at the Treasury of the United States.
Sec. 225. Terms and rules.—The said court of appeals shall establish Terms.by rule of court such terms of the court in each year as to it may seem necessary: *Provided, however*, That there shall be at least three *Provisos.*To be at least three a year.terms in each year; and it shall make such rules and regulations as may be necessary and proper for the transaction of its business and the taking of appeals to said court. And said court of appeals shall Power of court to make regulations, etc.have the power to prescribe what part or parts of the proceedings in the court below shall constitute the record on appeal, except as herein otherwise provided, and the forms of bills of exceptions, and to require that the original papers be sent to it instead of copies thereof, and generally to regulate all matters relating to appeals, whether in the court below or in said court of appeals.
If any member of the court shall be When justice of supreme court may sit.absent on account of illness or other cause during the session thereof, or shall be disqualified from hearing and determining any particular cause by having been of counsel therein, or by having as justice of the supreme court of the District of Columbia previously passed upon the merits thereof, or if for any reason whatever it shall be impracticable to obtain a full court of three justices, the member or members of the court who shall be present shall designate a justice or justices of the supreme court of the District of Columbia to temporarily till the vacancy or vacancies so created, and the justice or justices so designated shall sit in said court of appeals and perform the duties of a member thereof while such vacancy or vacancies shall exist: *Provided*, That no justice of —may not hear decree. etc., made by himself.the supreme court of the District of Columbia shall, while on the bench of said court of appeals, sit in review of any judgment, decree, or order which he shall have himself entered or made: *Provided also*, That if the Two justices may hear cause ou stipulation of counsel.parties to any cause shall so stipulate in writing, by their attorneys and solicitors, such cause may be heard and determined by two justices of the court without calling in any of the justices of the supreme court of the District of Columbia: *And provided also*, That all motions to dismiss —may hear motions, etc.appeals and other motions may be heard by two justices in the event of the absence or disqualification of any one of the justices as aforesaid: *And provided further*, That if in any cause heard before two justices —division in opinion.as aforesaid the court shall be divided in its opinion, then the judgment or decree of the lower court shall stand affirmed.
Sec. 226. Jurisdiction.—Any party aggrieved by any final order, Jurisdiction.judgment, or decree of the supreme court of the District of Columbia, or of any justice thereof, “including any final order or judgment in any case heard on appeal from a justice of the peace,” may appeal therefrom to the said court of appeals; and upon such appeal the court of appeals shall review such order, judgment, or decree, and affirm, reverse, or modify the same as shall be just, except as provided in the following sections.
Appeals shall also be allowed to said court of appeals from all interlocutory orders of the supreme court of the District of Columbia, or by any justice thereof, whereby the possession of property is changed or affected, such as orders for the appointment of receivers, granting injunctions, dissolving writs of attachment, and the like; and also from any other interlocutory order, in the discretion of the said court of appeals, whenever it is made to appear to said court upon petition that it will be in the interest of justice to allow such appeal.
Sec. 227. Appeals from police court.—If, upon the trial of any Appeals from police court.cause in the police court, an exception be taken by or on behalf of 1226the United States, the District of Columbia, or any defendant to any Bill of exceptions.ruling or instruction of the court upon matter of law, the same shall be reduced to writing and stated in a bill of exceptions, with so much of the evidence as may be material to the question or questions raised, which said bill of exceptions shall be settled and signed by the judge within such time as may be prescribed by rules and regulations which shall be made by the court of appeals of the District of Columbia for the transaction of business to be brought before it under this section, Writ of error, etc.and for the time and method of the entry of appeals and for giving notice of writs of error thereto from the police court of the District of Columbia; and if. upon presentation to any justice of the court of appeals of the District of Columbia of a petition which, in the case of a defendant, shall be verified, setting forth the matter or matters so excepted to, such justice shall be of opinion that the same ought to be reviewed, he may allow a writ of error in the. cause, which shall issue out of the said court of appeals, addressed to the judge of the police court, who shall forthwith send up the information tiled in the cause and a transcript of the record therein, certified under the seal of said court, to said court of appeals for review and such action as the law may require, which record shall be filed in said court of appeals within such time as may be prescribed by the court of appeals, as hereinbefore provided.
Any party desiring the benefit of the pro-visions of this section shall give notice in open court of his or its intention to apply for a writ of error upon such exceptions and *Proviso.*—bond.thereupon proceedings therein shall be stayed for ten days: *Provided*, That the defendant seeking an appeal shall then and there enter into recognizance, with sufficient surety to be approved by the judge of the police court, conditioned that in the. event of a denial of his application for a writ of error he will, within five days next after the expiration of said ten days appear in said police court and abide by and perform its judgment, and that in the event of the granting of such writ of error he will appear in said court of appeals of the District of Columbia and prosecute the writ of error and abide by and perform its judgment in the premises.
Upon failure of any defendant to enter into the recognizance provided for in this section the sentence of the police court shall stand and be executed; otherwise execution shall be stayed pending proceedings upon his application for a writ of error and until final disposition thereof by the said court of appeals. Sec. 228. Appeals from Commissioner of Patents.Vol. 27, p. 438.Appeals from Commissioner of Patents.—The determination of appeals from the. decisions of the Commissioner of Patents shall remain vested in said court of appeals, as provided by the Act approved February ninth, eighteen hundred and ninety-three, chapter seventy-four, entitled “An Act to establish a court of appeals for the District of Columbia, and for other purposes,” and any party aggrieved by a decision of the Commissioner of Patents in any interference case may appeal therefrom to said court of appeals.
Sec. 229. Opinions.Opinions.—The. opinion of the said court of appeals in every case shall be rendered in writing, and shall be filed in such case Reporter.as a part of the record thereof, and the said court of appeals is authorized to appoint a reporter, who shall serve during the pleasure of the court and with a salary of one thousand dollars per annum, and whose duty shall be to report, edit, and publish, in form to be prescribed by the court, its opinions. Reports to be furnished Justices, etc.And the said reporter shall furnish and deliver one copy of each volume of the reports of said opinions which shall have been published at the date of the passage of this code to each of the justices of the said court of appeals, the supreme court, and the judges of the police court of said District, immediately after the passage hereof, and shall there-after furnish and deliver one copy of each volume of the reports of said opinions that shall thereafter be published immediately after the 1227issue thereof to each of said justices and judges, and the copies so received by each of them shall, in ease of his death, resignation, or removal from office, be delivered to his successor.
And there is hereby Appropriation.appropriated, out of any moneys in the Treasury not otherwise appropriated, such sums as may be necessary to pay the said reporter therefor at the rate of not exceeding five dollars per volume; and such appropriations shall be deemed permanent and annual appropriations, and one-half thereof shall be paid out of the revenues of the District of Columbia. Sec. 230. Writs.—The said court of appeals shall have power to Writs.issue all necessary and proper remedial prerogative writs in aid of its appellate jurisdiction.
Sec. 231. Marshal to execute orders.—The marshal of the Marshal to execute orders.United States for the District of Columbia shall execute the orders and processes of the court of appeals in the same manner as he executes those of the supreme court of the District. Sec. 232. Half of salaries paid by District of Columbia.—One-half Half of justices’ salaries paid by District of Columbia.of the amounts paid on account of salaries of the justices of the court of appeals shall be paid from the revenues of the District of Columbia.
Subchapter Five. THE SUPREME COURT OF THE UNITED STATES.The Supreme Court of the United States. Sec. 233. Any final judgment or decree of the court of appeals may Appeal, etc., to from court of appeals.be reexamined and affirmed, reversed, or modified by the Supreme Court of the United States, upon writ of error or appeal, in all cases in which the matter in dispute, exclusive of costs, shall exceed the sum of five thousand dollars, in the same manner and under the same regulations as existed in cases of writs of error on judgments or appeals from decrees rendered in the supreme court of the District of Columbia on February ninth, eighteen hundred and ninety-three, and also in eases, without regard to the sum or value of the matter in dispute, wherein is involved the validity of any patent or copyright, or in which is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States.
Sec. 234. In any case heretofore made final in the court of appeals it shall be competent for the Supreme Court of the United States to require, by certiorari or otherwise, any such case to be certified to said Supreme Court for its review and determination, with the same power and authority in the ease as if it had been carried by appeal or writ of error to said Supreme Court. Chapter Two. ABATEMENT.Abatement. Sec. 235. Right of action to survive.—On the death of any person What rights of action survive.in whose favor or against whom a right of action may have accrued for any cause except an injury to the person or to the reputation, said right of action shall survive in favor of or against the legal representatives of the deceased; but no right of action for an injury to the per-son, except as provided in chapter forty-five of this code, or to the reputation, shall so survive.
Sec. 236. Death, effect of.—No action at common law shall abate Death, effect of.by the death of either or any of the parties thereto if the right of action would survive as aforesaid; but upon the death of any defendant the action shall continue pending, and the heir, devisee, executor, administrator, or other person interested in the place of the deceased 1228Summons to heirs, etc., of defendant to appear, etc.defendant, as the case may require, may appear to such action. And in case the proper person to defend such action shall not appear to the same during the term of the court in which such death may be suggested, the plaintiff may cause a summons to be issued, directed to the proper person to defend such action, to be served on such person, if found in the District of Columbia and legally suable therein, requiring him to appear thereto on or before the twentieth day, exclusive of Sundays and legal holidays, occurring after the service thereof, and show cause why such action should not be prosecuted to judgment; and if it shall appear to the court that such summons has been duly served, and the person so summoned shall not appear as thereby required, then the court may cause the appearance of such person to bo entered, and there shall be the same proceedings in said action as if said person had voluntarily appeared: and all the proceedings had before the death of the defendant shall be considered as proceedings in the action, and such further proceedings shall be had to bring the New parties to be made within one year.cause fairly to trial as the court may deem proper.
If the proper representative of a deceased defendant be not made a party to the action within one year from the death of said defendant, the action shall abate as to such defendant: *Provided, however*, That where the representative of the deceased is an executor or administrator the plaintiff shall have six months after the issuance of letters testamentary or of administration within which to make such representative a party: Substitution of publication for summons.*And provided further*, That in ease the summons above provided for shall be returned “Not to be found,” publication may be substituted therefor in all cases in which proceeding by publication is authorized by this code.
Sec. 237. Summons to executor, etc., of plaintiff.Summons to executor, and so forth.—If the plaintiff in any such action shall die before judgment is given, the heir, devisee, executor, administrator, or other proper person to prosecute such action may appear and prosecute the same: and if such person does not appear to prosecute such action during the term of said court in which the death may be suggested, the defendant may cause a summons to be issued, directed to the proper person to prosecute such action, requiring him to appear and prosecute the same on or before the twentieth day, exclusive of Sundays and legal holidays, occurring after service of the Abatement of action on nonappearance, etc.same; and if it shall appear to the court that such summons has been duly served, and the party summoned shall fail to appear in obedience thereto to prosecute the action, or if said party be not found in the District of Columbia and shall not appear to prosecute such action by the fourth day of the second term of the court after the term at which the death is suggested, the action shall abate; but if the proper person to prosecute such action shall appear therein, either voluntarily or after being summoned as aforesaid, before said suit shall so abate, all proceedings in the action had before the death of the plaintiff shall be considered as proceedings in the cause, and such other proceedings shall be had to bring the cause fairly to trial as the court may deem proper.
Sec. 238. Death of new party.Death of new party.—In all cases where a new party has been made to any action under the provisions aforesaid, and the new party so made shall die before judgment, or if an executor or administrator shall be removed from his office, the proper person to prosecute or defend such action in the place of the party so dying or removed may be made a party thereto by the same proceeding herein authorized on the death of the original plaintiff or defendant.
Sec. 239. Pleadings.Pleadings.—Any new party to any action may use and rely upon any pleadings put in by his predecessor in such action, or shall have the same right to amend the pleadings or proceedings in such action as if he had been an original party thereto. 1229 Sec. 240. Costs.—In all cases where a new party is made to an action Costs before new party is made to be taxed, etc.the costs which accrued before such new party was made shall be taxed as part of the costs in such action, and the judgment rendered shall be the same as if the action had been originally commenced between the persons who are parties to such action: *Provided*, That no defendant *Proviso.*—limit. defendant, etc.who is made a new party to such action shall be burdened with debts, damages, or costs beyond the amount of property or assets descended or come to his hands from the deceased.
Sec. 241. Joint parties.—In case of the death of one of several Joint parties.joint defendants to an action, where the right of action will survive as aforesaid, the same proceedings shall be had to make the proper representative of the deceased a party to the action as in the case of a sole defendant. Sec. 242. Appeals from justices of the peace.—An appeal from Appeals from justices of the peace.a judgment rendered by any justice of the peace shall be deemed an action within the meaning of the aforegoing provisions.
Sec. 243. Equity suits.—No suit in equity shall abate by the death Equity suits.of any of the parties in cases where the rights involved in the suit survive. Sec. 244. Death of party to equity suit.—If any of the parties to Death of party to equity suit.a suit in equity, whether complainant or defendant, shall die after the filing of the bill or petition, it shall not be necessary to file a bill of revivor: but any of the surviving parties may file a suggestion of such death, setting forth when the death occurred, and who is the legal representative of such deceased party, and how he is the representative, whether by devise, descent, or otherwise.
Sec. 245. Subpcaena to representatives.—Upon such a suggestion Subpoena to representatives.a subpoena shall issue for the legal representative of the deceased party, commanding him to appear and be made a party to such suit, it such representative reside within the District of Columbia; and if such representative is a nonresident, then such notice shall be given instead of the subpoena as is herein elsewhere provided for nonresident defendants. Sec. 246. Death after decree for account, and so forth.—If Death after decree for account, etc.any defendant shall die after a decree for an account, sale, or partition, or after such other proceedings shall have been had after appearance as would have warranted the passing of such a decree, or if such deceased defendant shall have answered, confessing the facts stated in the bill, or shall have set up no defense to the relief therein prayed, the court may, in its discretion, order the cause to be proceeded in as if no death had occurred, or may order a bill of revivor or a supplemental bill to be filed, and the proper representative of such deceased defendant to be made a party, as may seem best calculated to advance the purposes of justice: *Provided*, That the heir or other proper representative *Proviso.*Appearances before final decree, etc.of such deceased defendant, at any time before final decree, may appear and be made a party on such reasonable terms as the court may direct: and such new party may file an answer to the original bill, subject to such terms as the court may impose, in which he may insist on such defenses, and none other, as might have been made to a bill of revivor or supplemental bill in the nature of a bill of revivor filed against him.
Sec. 247. Marriage of party.—No suit at law or in equity shall Marriage of party.abate by the marriage of any of the parties; but on application of any of the parties the court may, on such terms and notice as it shall deem proper, allow and order any amendment in the pleadings and the making of any new or additional parties that such marriage may render necessary or proper. Sec. 248. Death after final decree.—If any of the parties to a Death after final decree.suit die after final decree, the court may order execution of such decree as if no death had occurred, or the court may order a subpoena scire 1230facias to be issued, or a bill of revivor to be filed against the proper representatives of such deceased party, or pass such other order or direct such other proceedings as may seem best calculated to advance *Proviso.*Appearance before execution.the purposes of justice: *Provided*, That the heir or other proper representative may appear at any time before execution of said decree and be admitted as a party to the suit, on such terms as the court may prescribe, and such further proceeding may be had as may be appropriate to the merits of the cause.
Sec. 249. Failure to appear.Failure to appear.—If any representative of a deceased party shall fail to appear, after being summoned, within the time therein limited, or shall fail to appear after notice by publication, the court may order the appearance of such representative to be entered, to have the same effect as if such representative had appeared in person and been made a party. Sec. 250. Evasion of service of process.Evasion of service of process.—In all cases where any representative of a deceased party to a suit shall evade any process issued against him. or shall leave the District before any such process can be served on him. he may be proceeded against as a nonresident defendant, Sec. 251.
Bill of revivor.Bill of revivor.—A bill of revivor or supplemental bill in the nature of a bill of revivor may be filed, instead of a suggestion of the death of a party, and notice thereof shall be given to the defendant, by subpæna or the service of a copy of such bill, if he be found within the District, as the court may direct; or. if the party be a nonresident or secrete himself or evade the service of the summons, or if his residence be unknown, then notice by publication may be given as against nonresident defendants.
Chapter Three. Absence for seven years.ABSENCE FOB SEVEN YEARS. Sec. 252. Presumption of death.Presumption of death.—If any person shall leave his domicile without any known intention of changing the same, and shall not return or be heard from for seven years from the time of his so leaving, he shall be presumed to be dead, in any case wherein his death shall come in question, unless proof be made that he was alive within that time. Sec. 253. Person found living.Person found living.—If the person so presumed to be dead be found to have been living, any person injured by such presumption shall be restored to the rights of which he shall have been deprived by reason of such presumption.
Chapter Four. Account.ACCOUNT. Sec. 254. Auditor’s report.Auditor’s report and exceptions.—In actions at common law grounded upon an account, or in which it may be necessary to examine and determine upon accounts between the parties, the court, in its discretion, at any stage of the cause, may order the accounts and dealings between the parties to be audited and stated by the auditor of the court or by a special auditor to be appointed by the court for the purpose; in which case, if a jury shall have been sworn, they shall be discharged.
The course of proceedings before the auditor shall be the same as in cases in equity referred to him. When his audit is completed the auditor shall tile his report and account in the clerk's office and give notice thereof to the parties or their attorneys, and at the expiration of thirty days after said notice judgment may be entered, on 1231motion of either party, in accordance with said report and account, unless exceptions are tiled thereto for errors in law or fact therein.
The party excepting thereto shall point out particularly the item or —exceptions to.items in such report and account excepted to, and state the grounds of such exception, and annex to his exceptions a certificate of counsel that, in his opinion, the matters of law therein stated are well founded in law, and an affidavit of such party that the exceptions are not tiled for delay, and that the allegations of fact in said exceptions are true, and a copy of said exceptions shall be served on the opposite party or his attorney.
Sec. 255. Trial of exceptions.—When such exceptions are filed, —trial of exceptions.the court shall enter the cause on the trial calendar of the term in which they are filed in its proper place, and the issues made by said exceptions shall be tried and determined in the same manner as other issues of law or fact made by the pleadings in an action at common law. and any part of such report and account not so excepted to shall be adjudged to be conclusive between the parties on such trial.
Sec. 256. Directions to jury.—If, in the opinion of the court, —directions to jury as to part of issues, etc.such issues are so numerous as to create confusion the court may, in its discretion, direct evidence to be received and considered by the jury as to a part of said issues, and direct the jury to retire and conclude as to the same before hearing the evidence as to the other issues, and this to repeat as often as may be necessary, the final conclusion of the jury as to all the issues to be announced as their verdict: or may submit the different issues to the same jury at different times fortheir separate verdicts thereon, or submit such issues to different juries; or may pursue such other course as the rules of the court may prescribe to facilitate the determination of such issues.
Sec. 257. Frivolous exceptions.—If only general, immaterial, or Frivolous exceptions.frivolous exceptions are made or they are filed without the certificate of counsel and affidavit of exceptant, required as aforesaid, they may be overruled by the court or a justice at chambers, on notice and motion, and judgment entered as if no exceptions had been filed. Sec. 258. Judgment.—Upon the conclusion of such trial or trials Judgment.the court shall enter judgment upon the auditor’s report as affirmed or corrected by the findings of the jury.
Chapter Five. ADMINISTRATION.Administration. Subchapter One. EXECUTORS, ADMINISTRATORS, AND COLLECTORS.Executors, administrators, and collectors. Sec. 259. Estate to be administered.—On the death of any person Estate to be administered.domiciled in the District of Columbia leaving real or personal estate, or both, therein, all his personal estate and so much of his real estate as shall be necessary in addition thereto for the payment of his debts shall be the subject of administration under authority and direction of the probate court.
Sec. 260. Lien of creditors.—On the death of any person not Administration of real estate of nonresident to pay claims of resident creditors.domiciled in the District of Columbia at the time of his death so much of his real estate in the District of Columbia as may be necessary for the payment and discharge of just claims against him of creditors and persons domiciled in the District of Columbia shall also be the subject of administration under authority and direction of the probate court, irrespective of the personal estate of such decedent: *Provided*, The *Proviso*.—time for prosecuting claims.prosecution of such claims is begun in said court within one year after the death of such decedent. 1232Sec. 261.
Competency of executors, etc.Competency of executors, and so forth.—No letters testamentary or of administration shall be granted to a person convicted of an infamous offense, or to an idiot or lunatic, or person non compos mentis, or one under eighteen years of age, or to an alien; and all questions as to the disqualification on any of said grounds of any person claiming to be entitled to letters testamentary or of administration shall be determined by the probate court, after such notice to the said persons as the court may direct.
Sec. 262. Letters testamentary.Letters testamentary.—When any will or codicil respecting either real or personal property shall have been authenticated and admitted to probate, letters testamentary thereon shall be issued to the executor named therein, if he is legally competent and will *Provisos.*Bond of executor.accept the trust: *Provided*, That he shall first execute a bond to the United States, with security to be approved by the court, in such penalty as the court may require, with a condition that he will administer according to law and to the will of the testator all his goods, chattels, rights, and credits, and the proceeds of all his real estate that may be sold for the payment of his debts or legacies which shall at any time come to the possession of the executor or to the possession of any other person for him, and in all other respects faithfully perform the —oath.trusts reposed in him: *And provided further*, That said executor shall take and subscribe and tile an oath that he will well and truly administer the estate of the deceased according to law and will give a just account of his administration when thereto lawfully called: *Provided*, —corporations not included.That the above conditions as to bond and oath shall not apply to corporations authorized to act as executors.
Sec. 263. Where testator requests that executor be relieved from giving bond.—penalty of.Bond, when not required.—Whenever a testator shall, by last will and testament, request that his executor be not required to give bond for the performance of his duty, in such case the bond required of the executor shall be in such penalty as the court may consider sufficient to secure the payment of the debts due by the *Provisos.*—limit of penalty.testator: *Provided, however*, That the penalty of such bond shall not exceed double the value of the personal estate; and when less than this sum it may be increased, or an additional bond may be required, whenever it shall be made to appear to the court that the bond as given is insufficient to secure the payment of the debts of the —increase where assets in danger, etc.testator: *And provided further*, That whenever any creditor, distributee, or legatee entitled to take under the will shall make it appear to the court that any executor who has given such bond only as is herein provided for is wasting the assets of the estate, or that the assets are in danger of being lost, wasted, or misappropriated, then the said executor may be removed or required to give additional bond with security in a penalty sufficient to secure the interests of all the creditors, distributees, and legatees entitled to take said estate, and on his failure to give bond as required his letters may be revoked; and upon such revocation the same results shall ensue as hereinafter provided in section two hundred and ninety-six.
Sec. 264. Bond of executor who is residuary legatee, etc.Executor residuary legatee.—If the executor is the residuary legatee of the personal estate of the testator, or provided the residuary legatee of full age shall notify his consent to the court, he may, instead of the bond prescribed as aforesaid, give bond with security approved by the court, and in a penalty prescribed by the court, conditioned to pay all the debts and just claims against the testator, and all damages which shall be recovered against him as executor, and all legacies bequeathed by the will, in which case he shall not be required to file any inventory or render any account.
And if such bond be given by the executor, he shall be answerable for the full amount of all debts, claims, and damages that may be recovered against him as executor as if he were sued in his own right, and any legatee may recover the full amount of his legacy in a suit on the 1233executor’s bond or in equity, and the giving of the bond shall be considered an assent to the legacy: *Provided*, That the surety or sureties *Proviso.*—liability of sureties.in said bond shall not be liable for a greater amount than the penalty thereof.
Sec. 265. Joint executor.—When two or more persons are appointed Joint executor.executors, the court may take a separate bond with security from each of them or a joint bond with security from all of them together. Sec. 266. Letters of administration cum testamento annexo.—Letters of administration cum testamento annexo.If there be only one executor named in the will, and he shall have been present at the probate of the will, and shall not within twenty days thereafter file a bond and qualify as executor by taking the oath aforesaid, letters of administration with the will annexed may be granted as if no executor had been named.
Sec. 267. Absent executor.—If said executor shall not have been Absent executor.present at the probate of the will, but shall be within the District, a summons may be issued to him, either at the instance of any person interested or ex officio by the register of wills, requiring him to appear and file his bond as required by law within twenty days after service of said summons; and if he be not found in said District, notice shall be given to him by publication to appear within thirty days after the first publication of said notice, and on his failure to appear and give his bond and qualify by taking the prescribed oath, as aforesaid, administration may be granted as if no executor had been named in the will.
Sec. 268. Summons to each of several executors.—If there be Summons to each of several executors.more than one executor named in a will, there may be the same proceeding with respect to each of them as if he were the sole executor, and any circumstances under which letters of administration may be granted on failure of a sole-named executor shall authorize the granting of letters testamentary to one or more of the executors on failure of one or more of the others; and any circumstances under which letters of administration may be granted on failure of a sole-named executor shall authorize the granting of such letters of administration on failure of all the executors named to appear and qualify as aforesaid.
Sec. 269. Renunciation.—If any executor named in a will shall file Renunciation.or transmit to the probate court an attested renunciation of his executorship, there shall be the same proceeding with respect to granting letters testamentary or of administration as if the party so renouncing had not been named in the will. Sec. 270. Executor disqualified.—If any person named as executor Executor disqualified.be disqualified from serving, letters testamentary or of administration may be granted as if he had not been named as executor.
Sec. 271. No power to act without letters.—In case letters No power to act without letters.testamentary shall be granted to one or more of the executors named in a will on failure of the rest, no executor not named in said letters shall in any manner interfere with the administration; and if letters of administration with the will annexed shall be granted, no executor named in the will shall in any manner interfere with the administration; and no executor named in a will shall, before letters testamentary are granted to him, have any power to dispose of any part of the estate of the deceased or to interfere therewith, further than is necessary to collect and preserve the same.
Sec. 272. Form.—The following shall be the form of letters testamentary Form of letters.to be issued under the seal of the probate term of the supreme court of the District of Columbia: District of Columbia, to wit: The United States of America. To all persons to whom these presents shall come, greeting: Know ye that the last will and testament of _ _ _ _ _, of _ _ _ _ _, deceased, hath, in due form of law, been exhibited, proved, and recorded in the office of the register of wills of the District of Colum-1234bia, a copy of which is to these presents annexed, and administration of all the goods, chattels, and credits of the deceased is hereby granted and committed unto _ _ _ _ _ , the executor by said will appointed.
Witness (A B) the chief justice of the supreme court of the District of Columbia, this _ _ _ _ _ day of _ _ _ _ _ Test: C D, Register of Wills. Sec. 273. Letters of administration.Letters of administration.—On the death of any person leaving real or personal estate in the District, letters of administration on his estate may be granted, on the application of any person interested, on proof, satisfactory to the probate court, that the decedent died intestate. Sec. 274. Bond.Bond.—Every administrator, except corporations authorized to act as administrators, shall, before entering on his duties, file in the probate court his bond to the United States, with security approved by the court, in such penalty as the court shall direct, with condition to administer according to law all the money, goods, chattels, rights, and credits of the deceased; and when the court shall have ordered the sale of the decedents real estate, he shall give a like bond conditioned to administer the proceeds of the real estate that may be sold for the payment of the decedent's debts which shall come into his possession, or to the possession of any other person for him, and —oathin all other respects perform the trust reposed in him. and shall also take and subscribe an oath similar to that prescribed for executors.
Sec. 275. Special bond of administrator entitled to residue of estate.Special bond.—If the person appointed as administrator shall be entitled to the residue of the estate after the payment of the debts, he may, instead of the bond herein provided for. execute a bond, with security approved by the court, in such penalty as the court may consider sufficient, conditioned for the payment of all the debts and claims against the deceased, and all damages which shall be recovered against him as administrator, in which ease he shall not be required to return any inventory or account; and in such case the administrator shall be personally answerable for all debts, claims, and damages that may be recovered against him, in like manner as the executor who *Proviso*.—sureties liability.gives a similar bond: *Provided*, That the surety or sureties in said bond shall not be liable for a greater amount than the penalty thereof.
Sec. 276. Persons entitled.Persons entitled.—If the intestate leave a widow and a child or children, administration, subject to the discretion of the court, shall be granted either to the widow or child, or one or more of the children, qualified to act as administrator, and further subject to the discretion of the court as follows: Sec. 277. If there be a widow and no child the widow shall be preferred, and next to the widow or children a grandchild shall be preferred. Sec. 278.
If there be neither widow, nor child, nor grandchild to act, the father shall be preferred; and if there be no father the mother shall be preferred. Sec. 279. If there be neither widow, nor child, nor grandchild, nor father, nor mother to act, brothers and sisters shall be preferred. Sec. 280. If there be neither widow, nor child, nor grandchild, nor father, nor mother, nor brother, nor sister, the next of kin shall be preferred. Sec. 281. Males shall be preferred to females in equal degree.
Sec. 282. Relations of the whole blood shall be preferred to those of the half blood in equal degree, and relations of the half blood shall be preferred to relations of the whole blood in a remoter degree. Sec. 283. Relations descending shall be preferred to relations ascending, in the collateral line; that is to say, for example, a nephew shall be preferred to an uncle. Sec. 284. None shall be preferred in the ascending line beyond a father or mother, or in the descending line below a grandchild. 1235 Sec. 285.
A feme sole shall be preferred to a married woman in equal degree. Sec. 286. Relations on the part of the father shall be preferred to those on the part of the mother, in equal degree. Sec. 287. If any person described in the foregoing sections should —incompetence of above to serve.be incompetent to serve, then administration shall be granted as if such person were not living. Sec. 288. If there be no relations, or those entitled decline or refuse Administration by creditor, etc.to appear and apply for administration, on proper summons or notice, administration may be granted to the largest creditor applying for the same; and if creditors neglect to apply, it may be granted at the discretion of the court.
Sec. 289. Notice or application.—Upon any application for letters Notice of application.of administration, such notice thereof shall be given, by publication or otherwise, as the rules of the court may require; but it shall not be necessary to notify any collateral relatives more remote than brothers and sisters of the intestate. Sec. 290. Will proved after letters granted.—If administration Will proved after letters granted.be granted, and a will disposing of the estate of the deceased shall afterwards be proved, according to law, and letters testamentary shall have issued thereon, the same shall be considered a revocation of the letters of administration.
But all acts done by the administrator according to law, before any actual or implied revocation of his letters, shall be valid and effectual, and the executor obtaining letters shall be authorized to prosecute any actions at law or in equity commenced by the administrator and obtain judgment in his own name, and likewise to defend any suit commenced against the administrator; and said executor shall have the benefit of all judgments obtained by the administrator and be bound by all judgments obtained against him to the extent of assets received by said executor, unless said judgments were obtained by fraud.
And it shall be the duty of said administrator to account for and deliver to the executor without delay all goods, chattels, and personal estate and proceeds of any realty sold in bis possession, belonging to the deceased, in default of which his bond may be put in suit by the executor or administrator cum testamento annexo. Sec. 291. Declining administration.—If any person entitled to Declining administration.administration shall, in writing, decline the same, the court shall proceed as if such person were not entitled.
Sec. 292. Resignation.—If any person, after having accepted the Resignation of executor, etc.office of executor or administrator, shall desire to retire from and resign the same, he may tile his petition to that effect, accompanied by a full and particular account, under oath, of his receipts and disbursements, if any. and the court shall thereupon direct such notice as it may think proper to be given of said application, and. if no cause be shown to the contrary, may release and discharge him from his office and pass such order as to costs and commissions and impose such terms in other respects as the nature of the ease may require: *Provided*, *Proviso*.That such executor or administrator shall not, by said discharge, be —liability after release for past acts.released from any liability for past acts, defaults, or omissions of duty.
Sec. 293. Form.—The form of letters of administration shall be as Form.follows: District of Columbia, to wit: The United States of America. To all persons to whom these presents shall come, greeting: Know ye that administration of the goods, chattels, and credits of _ _ _ _ _ , late of _ _ _ _ _, deceased, is hereby granted and committed unto _ _ _ _ _, of _ _ _ _ _ Witness (A B) the chief justice of the supreme court of the District of Columbia. Test: C D, Register of Wills. 1236 Sec. 294.
Bond of persons over 18 years of age, etc., binding.Persons over eighteen years of age.—In case letters testamentary or of administration shall be granted to any person above eighteen but under twenty-one years of age, the bond executed by him for the faithful performance of his duties shall be as binding as if he were of full age. Sec. 295. Application for letters.Application for letters.—Whenever any person shall apply to the probate court for letters testamentary or of administration, he shall set forth, under oath, as fully as possible, all the personal and real estate left by the decedent and the amount of his debts as far as can be ascertained; and the penalty of the bond required of him, except in the cases provided for in section two hundred and sixty-three, two hundred and sixty-four, and two hundred and seventy- five aforesaid, shall be sufficient to secure the proper application of all the personal estate of the testator or intestate; and when it shall become necessary to sell the real estate of the decedent, in part or in whole, the executor or administrator shall give such additional bond, with approved security, as shall be directed by the court, to secure the proper application of the proceeds arising from such sale or sales.
And whenever an executor is empowered by the will to make sale of the real estate of the testator, for any purpose, he shall account for said proceeds in said court. Sec. 296. Additional bond.Additional bond.—Whenever the probate court shall be satisfied that the bond already given by an executor or administrator is insufficient, the said executor or administrator may be required to file an additional bond, and on his failure to do so his letters may be revoked. And upon the revocation of letters testamentary or of administration under this provision, the executor or administrator whose letters are so revoked shall forthwith deliver to any substituted executor or administrator all the assets of his testator or intestate in his possession or under his control.
Sec. 297. Bonds to be recorded, etc.Actions on bonds.—Every bond executed by an executor or administrator shall be recorded in the office of the register of wills; —copy of, to be furnished.and any person conceiving himself to be interested in the administration of the estate shall be entitled to have or demand a copy of such bond, under the hand and seal of the register of wills, on which an —actions on.action may be maintained, in the name of the United States, for the use of the party interested, and judgment may be recovered in such action for the damage actually sustained.
And an administrator appointed in the place of an executor or administrator who has resigned, been removed, or whose letters have been revoked, may in like manner maintain an action against the executor or former administrator and his sureties, on his administration bond, for all loss and damage to the estate resulting from this breach of duty. No creditor shall be entitled to maintain an action on a testamentary or administration bond for any claim against a testator or intestate until an action has been commenced against the executor or administrator of the deceased and a summons issued therein has been returned “Not to be found,” or a writ of fieri facias or of attachment, issued on a judgment against such executor or administrator, has been returned “nulla bona,” or until such apparent insolvency of the executor or administrator or insufficiency of his effects as in the judgment of the court before which such action may be tried shall show the said creditor to be without remedy except by such action on the executor’s or administrator’s bond.
Sec. 298. Death, etc., of executor named.Death, and so forth, of executor named.—In case any will admitted to probate shall not appoint an executor, or the executor therein appointed shall have died or renounced the executorship, or —to whom administration granted.shall be incompetent to serve, administration shall be granted with the will annexed to the person who would have been entitled to *Proviso.*administration in case of the intestacy of the deceased testator: *Provided, how-*1237*ever*, That if there be a residuary legatee named in such will, he shall —persons preferred.be preferred to all, except a widow.
And the condition of the bond —bond and oath of appointee.of the administrator so appointed and the oath to be taken by him and his duties and liabilities shall be the same if he had been appointed executor in the will and had received letters testatmentary. Sec. 299. Letters pe bonis non.—If an executor or administrator Letters debonis non,shall die before the administration of the estate is completed, letters of administration de bonis non or de bonis non cum testamen to an nexo, as the case may require, shall be granted, in the discretion of the court, giving preference, however, to the person who would be entitled in the order hereinbefore given, if he shall actually apply for the same; and the form of the letters shall be the same as in the case of an original —form.administration, except that it shall be confined to the property of the deceased not already administered, and the authority shall be to administer all property herein described as assets and not distributed and delivered or retained by the executor or former administrators, under the court’s direction.
Sec. 300. Executor of executor.—In no case shall the executor Executor of executor.of an executor, as such, be entitled to administration de bonis non on the estate of the first deceased. Sec. 301. Orders against representative of deceased.—On Orders against representative of deceased.the application of an administrator de bonis non the court may order the executor or the administrator of a deceased executor or administrator to deliver over to him all the personal property that was in the hands of the said deceased executor or administrator, as such, and also all the money, bonds, notes, accounts, and evidences of debt which the said deceased executor or administrator may have taken, received, and had at the time of his death, including the proceeds of sale of either personal or real estate made by said deceased executor or administrator, which shall be deemed unadministered assets.
Sec. 302. On the failure of said executor or administrator to comply —failure of said executor or administrator to comply.with said order by a day named, the court may enforce its order by attachment against such executor or administrator, and may direct the bond of the deceased executor or administrator, or that of the executor or administrator so failing, or both, to be put in suit for the use of the administrator de bonis non. Sec. 303. The executor or administrator of the deceased executor —return of list of bonds, etc.or administrator shall return, on oath, to the court, on or before the day named as aforesaid, a list of the bonds, notes, accounts, and money aforesaid, and shall be entitled to retain out of the money such com-mission as the court shall allow, not exceeding ten per centum on the principal inventory, and the personal estate and money turned over by him shall be assets in the hands of the administrator de bonis non, to be accounted for by him as such.
Sec. 304. Letters ad colligendum.—Letters ad colligendum may Letters ad colligendum.be granted to one or more persons in case of a contest in relation to a will, or the absence of the executor from the District, or his delay in qualifying, or for other sufficient cause, and the form of such letters shall be as follows: To all persons to whom these presents shall come, greeting: Know ye that, whereas _ _ _ _ _,of _ _ _ _ _, deceased, had, as —form.is said, at his decease, personal property within the District of Columbia, administration whereof can not immediately be granted, but which, if speedy care be not taken, may be lost, destroyed, or diminished, to the end that the same may be preserved for those who may appear to have a legal right or interest therein, we do hereby request and authorize _ _ _ _ _, of _ _ _ _ _, to secure and collect said property, wheresoever the same may be. in said District, whether the same be goods, chattels, debts, or credits, and to make a true inventory 1238thereof and exhibit the same with all convenient speed, with an account of his collections, into the office of the register of wills.
Witness (A B) the chief justice of the supreme court of the District of Columbia. Test: C D, Register of Wills. Sec. 305. Bond of collector.Every collector, except corporations authorized to act as such, before letters shall be issued to him. shall execute a bond to the United States, in a penalty and with security to be approved by said court, with the following condition: “The condition of the above obligation is such that if the above bounden _ _ _ _ _ shall well and honestly discharge the office of collector of the goods, chattels, and personal estate of _ _ _ _ _, deceased, in the District of Columbia, and shall make or cause to be made a true and perfect inventory or inventories of such of said goods, chattels, personal estate, and debts as shall come to his possession or knowledge and make return of the same to the probate court of the District, and shall also deliver to the person or persons who shall be authorized by the court to receive them such of said goods, chattels, personal estate, and debts as shall come to his possession, except such as shall be allowed for by said court, then the said obligation shall be void; it shall otherwise be in full force and virtue at law.
” And he shall also take and subscribe the following oath: “I, _ _ _ _ _, do swear that I will well and truly discharge the office of collector of the goods, chattels, and personal estate of _ _ _ _ _, deceased, according to the tenor of the letters granted me by the probate court of the District of Columbia and the directions of law, to the best of my knowledge, so help me God.” Sec. 306. duties of collector.Duties of collector.—The collector shall collect the goods, chattels, and personal estate of the deceased, including the debts due him. and cause the same to be appraised and return an inventory thereof, as an administrator is required to do, and may, under the authority of the court, sell perishable articles and bring suits for debts or other property, as an administrator may do, and shall account for the money recovered.
Said collector may be allowed a commission on the property and debts actually collected, and afterwards delivered to the executor or administrator, not exceeding three per centum, and said collector may be authorized and directed by the court to discharge, pendente lite, all or any of the duties of an administrator, including the payment of debts. Sec. 307. When powers to cease.When powers to cease.—On the granting of letters testamentary or of administration the power of any such collector shall cease, and it shall be his duty to deliver, on demand, all the property and money of the decedent in his hands, except as before excepted, to the person obtaining such letters, and the executor or administrator may be permitted to prosecute any suit commenced by said collector as if the same had been begun by said executor or administrator.
Sec. 308. Refusal to deliver property.If the said collector shall neglect or ref use to deliver over the property and estate to the executor or administrator, the court may, by citation and attachment, compel him to do so, and the executor or administrator may also proceed, by civil action, to recover the value of the assets from him and his sureties by action on his bond. Such collector shall not be liable to an action by any creditor of the deceased. Subchapter Two. Inventory.INVENTORY.
Sec. 309. Inventory to be made.Inventory to be made.—Every executor, administrator, or collector shall, within three months after his appointment, or such longer time as the court may allow, make and return, upon oath, into court a true inventory of all the goods, chattels, moneys, and credits 1239of the deceased which are by law to be administered and which shall have come to his possession or knowledge; and if the court shall think fit it may also order him to include in the inventory all the real estate of the deceased: *Provided*, That this section shall not apply to the cases provided for in sections two hundred and sixty-four and two hundred and seventy-five of this code.
Sec. 310. Appraisers.—On the granting of letters testamentary orAppraisers. of administration, except in the aforesaid excepted cases, a warrant shall issue to two suitable persons not interested in the estate, to appraise the estate of the deceased, known to them or shown to them by the executor or administrator, and they shall severally take and—oath. subscribe an oath well and truly, without partiality or prejudice, to value the goods, chattels, and personal estate and real estate (if so directed) or the deceased, as far as the same shall come to their knowledge, to the best of their skill and judgment.
Sec. 311. On the death, refusal, or neglect of any appraiser to act—refusal to act. another person may be appointed in his stead. Sec. 312. Notice.—It shall be the duty of the executor, administrator,Notice. or collector and of the appraisers to give notice to the persons immediately interested in the administration, or at least two of them, if they are numerous, of the time and place, of making said appraisement, and thereupon they shall proceed at said time and place to value said property and estate, setting down each article or item separately, with the value thereof, in dollars and cents, and when such appraisement shall have been completed they shall certify the same under their hands and seals, and the same shall be returned with the inventory.
Sec. 313. Contents of inventory.—The inventory shall containContents of inventory. a particular statement of all bonds, mortgages, notes, and other securities for the payment of moneys belonging to the deceased, and of all other debts and accounts due him, which are known to the executor, administrator, or collector, who shall designate those debts which he considers sperate and those which he considers desperate, and also an account of all moneys belonging to the deceased which shall come to his hands.
And whenever, after an inventory has been returned, assets not therein included shall come to the knowledge of the executor, administrator. or collector an additional inventory and appraisement shall be promptly prepared and filed in the manner aforesaid. Sec. 314. Exceptions.—There shall be excepted from the inventoryExceptions from inventory. the wearing apparel of the deceased, family pictures, the family Bible, and schoolbooks used in the family, and provisions for the support of the family on hand at the time, of decedent’s death.
But if said decedent shall have been the head of a family, or a householder, the property exempt under chapter twenty-seven, as therein stated, shall so continue exempt from all claims against said decedent, and shall be distributed by the court to such members of the family or household as in the judgment of the court the necessity and exigencies of the particular ease may require. Sec. 315. Collector’s inventory.—In case an inventory shall beCollector’s Inventory. returned by a collector, duly appointed, the executor or administrator thereafter administering shall, within three months after his appointment, either return a new inventory in place of the collector’s inventory or an acknowledgment in writing that he has received from the collector the articles contained in the first inventory, and consents to be answerable for the same, as if said inventory had been made out by him as administrator, unless it shall appear that he has been prevented from making such return by the improper detention of the personal estate of the deceased by the collector.
Sec. 316. Executor, and so forth, neglecting.—If there beExecutor, etc., neglecting. more than one executor or administrator, any one or more of them, on the neglect of the rest, may, if authorized by the court, return an inventory. 1240 Subchapter Three. Assets.ASSETS. Sec. 317. What are assets. What are assets.—Leases for years, estates for the life of another person or other persons, and all goods, wares, merchandise, utensils, furniture, things annexed to the freehold which may be removed without prejudice thereto, the growing crop on the land ol the deceased, and every other species of personal property, not including the clothing of the widow and minor children of the deceased and personal ornaments suitable to their station, shall bo included in the inventory, and, together with the proceeds of any real estate sold for the payment of debts, shall be considered assets to be administered by an executor or administrator.
Sec. 318. Debtor appointed executor.—discharge of debt in will, construction of, as against creditors. Debtor appointed executor.—The discharge or bequest, in a will, of any debt or demand of a testator against any executor named in a will, or against any other person, shall not be valid as against the creditors of the deceased, but shall be construed only as a specific bequest of such debt or demand, and the amount thereof shall be included in the inventory of the effects of the deceased and be asset; for the payment of his debts, if necessary for that purpose, and, if not so necessary, shall be paid in the same manner and proportion as other specific legacies.
Sec. 319. —naming of persons as executor not to discharge testator’s claim, etc. The naming of any person as executor in a will shall nolt operate as a discharge or bequest of any just claim which the testator had against such executor; but such claim shall be included among the credits and effects of the deceased in the inventory, and the executor shall be liable for the same, as for so much money in his hands, at the time such debt or demand becomes due; and he shall apply and dis-tribute the same, in the payment of debts and legacies and among the next of kin, as part of the personal estate of the deceased.
Sec. 320. —executor’s failure to give in such claim. On the failure of the executor to give in such claim in the list of debts due the deceased, any person interested in the administration may allege the same by petition to said probate court, and the said court, with consent of the parties, may decide on the same, or it may be referred by the parties, with the court’s approval; or at the instance of either party the court may direct an issue to be tried by a jury; and if said claim shall in any of such proceedings be decided to be a just claim of the decedent against the executor, said executor shall be charged with the amount thereof as aforesaid.
Sec. 321. Debt due by administrator. Debt due by administrator.—In like manner it shall be the duty of every administrator to give in a claim against himself, and on his giving it, or failure so to do, there shall be the same proceeding as above described with regard to an executor. Subchapter Four. Sales.SALES. Sec. 322. Sales of personal estate. Sales of personal estate.—In case any executor or administrator shall not have money sufficient to discharge the just debts of and claims against the decedent, the probate court shall, on his application, made after the return of an inventory, direct a sale of the personal property therein contained, or of such part as the court may think proper, and in such manner and on such terms as the court may direct.
The court shall have power to direct a sale as aforesaid, if deemed by the court advantageous to the persons interested in the administration, on the application of any of the said persons. Sec. 323. Order for sale. Order for sale.—No executor or administrator shall sell any property of his decedent without an order of the probate court 1241 authorizing such sale; and any such sale made without a previous order authorizing it shall be void and pass no title to the purchaser. If any executor or administrator shall sell, pledge, or dispose of any property without such previous order, his letters may be revoked and an administrator appointed, whose duty it shall be immediately to recover possession of said property, and such removed executor or administrator may be proceeded against by attachment; but where there are two or more executors or administrators, and a sale, pledge, or disposition of property has been made without the consent or all, the revocation shall only extend to the person or persons so offending, and the remaining executors or administrators shall have power to discharge the duties of their office and institute proceedings for the recovery of the property and attachment as aforesaid.
Sec. 324. The preceding section shall not be construed to apply to—scope of section limited. any case where an executor shall be authorized by will of his testator to make sale of any property. Sec. 325. Power of sale to executor.—In all cases in which aPower of sale to executor. testator has directed his real estate to be sold for the payment of his debts or legacies, the executor may sell and convey the same, and shall account for the proceeds thereof to the probate court in the same manner that he is bound to account for the proceeds of personal estate: but such sale shall not be valid unless ratified by said court after notice given by publication according to the practice in equitv.
In case the—refusal to act. executor shall refuse or decline to act, or shall die without executing the power vested in him, it shall be lawful for the court, on the application of any person interested, to appoint an administrator de bonis non with the will annexed to execute such power in the same manner in which the executor appointed by the will might have done. Sec. 326. Survivor of several trustees.—In all cases where twoSurvivor of several trustees may act. or more trustees shall be appointed by last will to execute a trust, or shall be empowered to sell, dispose of. or convey lands or other property devised to them jointly, upon the death of any one or more of them the survivor or survivors shall be held authorized to execute such trust or power; and if any one of such trustees shall in writing, signed by him and attested by a witness, relinquish or disclaim said trust or refuse to act under said will, and shall deliver such writing to the probate court of the District for record, the right of such trustee to act shall cease, and the remaining trustee or trustees appointed by said will shall be authorized to execute the trusts of said will and make all sales and execute all conveyances and other acts necessary for that purpose.
Subchapter Five. SUITS.Suits. Sec. 327. Suits by and against executors, and so forth.—Suits by and against executors, etc.Executors and administrators shall have full power and authority to commence and prosecute and personal action at law or in equity which the testator or intestate might have commenced and prosecuted, except actions for slander and for injuries to the person: and they shall also be liable to be sued in the supreme court of said District in any action at law or in equity, except as aforesaid, which might have been maintained against the deceased; and they shall be entitled to or answerable—costs. for costs in the same manner as the deceased would have been, and shall be allowed for the same in their accounts, unless it shall appear that there were not probable grounds for instituting or defending the suits in which judgments or decrees shall have been given against them. 1242 Sec. 328.
Judgments against executors, etc. Judgments against executors, and so forth.—If the verdict of the jury in any suit against an executor or administrator be against such executor or administrator, or if he shall be willing to con-fess judgment, and the debt or damages which the deceased (if he or she were alive) ought to pay be ascertained by verdict, or confession, or otherwise, the court shall thereupon assess the sum which the executor or administrator ought to pay. regard being had to the amount of assets in his hands and the debts due to other persons; and if it shall appear to the court that there are assets to discharge all just claims against the deceased, the judgment shall be for the whole debt or damages found by the jury, or confessed, or otherwise ascertained, and —insufficient assets, etc.costs; and if it shall appear to the court that there are not assets to discharge all such just claims, the judgment shall be for such sum only as bears a just proportion to the amount of the debt or damages and costs, regard being had to the amount of all the just claims and of the assets—that is to say, as the amount of all the said claims shall be to the assets, so shall the amount of the said debt or damages and costs be to the sum required, for which judgment is to be given.
Judgment not to be passed until time for filing account has expired.And in no case shall the court proceed to assess as aforesaid and to pass such judgment against an executor or administrator until the time limited by law or by the court for the executor or administrator *Proviso.*Executor’s oath of insufficient assets, etc.to pass his account shall have expired: *Provided,* That the said executor or administrator shall make oath (or affirmation, as the ease may require) that he hath not assets to discharge all such just claims; and the account settled by the probate court, in which the debt or damages sued for ought to be stated, shall be evidence to show the amount of assets and claims: and the court shall have power, when the real debt or damages are ascertained, to refer the matter to an auditor to ascertain the sum for which judgment shall be given; and in case the judgment shall be for a sum inferior to the real debt or damage and costs, it shall go on and say “that the plaintiff be entitled to such further sum as the court shall hereafter assess on discovery of further assets in the hands of the defendant;” and the court, at any time afterwards, when applied to by the plaintiff, on three days’ notice to the defendant or his attorney, may assess and give judgment for such further proportionable sum as the plaintiff shall appear entitled to, regard being had as aforesaid to the amount of the debt and other claims; and on any judgment passed as aforesaid a fieri facias may issue against the defendant, and either his own goods or the goods of the deceased may be thereupon taken and sold, and it shall be the duty of the executor or administrator to discharge said judgment or put it on a footing with other just claims, and on failure his administration bond may be put in suit by the plaintiff.
Sec. 329. Foreign executors, etc., may act in the District.Foreign executors and administrators.—It shall be lawful for any person or persons to whom letters testamentary or of administration have been granted by the proper authority in any of the United States or the Territories thereof to maintain any suit or action and to prosecute and recover any claim in the District in the same manner as if the letters testamentary or of administration had been granted to such person or persons by the proper authority in the said District; and the letters testamentary or of administration, or a copy thereof certified under the seal of the authority granting the same, snail be sufficient evidence to prove the granting thereof, and that the person or persons, as the case may be, hath or have *Proviso.*—bond of, etc.administration: *Provided, nevertheless,* That the probate court of the District shall have the power, upon the petition of anyone interested, to require from such person or persons the security required by law in like cases from a resident administrator or executor, or the said court may grant auxiliary or ancillary letters, as the case may require, to the same or other persons. 1243 Subchapter Six.
DEBTS.Debts. Sec. 330. Debts to be proved.—No executor or administratorRules for proving. shall discharge any claim against his decedent (otherwise than at his own risk) unless the same be first passed by the probate court, or unless the said claim shall be proved according to the following rules: Sec. 331. Vouchers.—The voucher or proof of a judgment or decreeVoucher of judgment of decree. shall be a short copy thereof under seal, attested by the clerk of the court where it was obtained, who shall certify that the said judgment or decree hath not been satisfied.
There shall likewise be a certificate of some person authorized to administeran oath, indorsed on or annexed to a statement of the debt due on such judgment or decree, that the creditor or his agent since the death of the deceased hath taken before him the following oath, to wit: “That the creditor hath not received any part of the sum for which the judgment or decree was passed except such part (if any) as is credited:” and if the creditor on the judgment or decree be an assignee of the person who obtained it, the oath shall go on and say further, “and that to the best of his knowledge or belief no other person hath received any parcel of the said sum except such part (if any) as is credited.” and an assignee shall also produce the assignment under the hand of the assignor; and if there, be more than one assignment, each assignment shall be produced under the hand of the party assigning.
Sec. 332. In case of a specialty, bond, note, check, or protested billVoucher of bond, note, etc. of exchange, the vouchers shall be the instrument of writing itself, or a proved copy in case it he lost, with a certificate of the oath made as aforesaid since the death and indorsed on or annexed to the instrument, or a statement of the claim “that no part of the money intended to be secured by such instrument hath been received or any security or satisfaction given for the same except what (if any) is credited.
” Sec. 333. If the creditor in such instrument be an assignee, there—where creditor an assignee. shall be the same oath of the creditor or agent, according to the best of his knowledge and belief, with respect to any payments prior to the time of the assignment. Sec. 334. In case of a bill of exchange or other commercial paper,Voucher of bill of exchange, etc. the protest or other things which would be required (if the deceased were alive) shall be necessary to justify an executor or administrator in making payment or distribution.
Sec. 335. If the claim be for rent, there shall be produced the lease—claim for rent. itself, or the deposition of some credible witness or witnesses, or an acknowledgment in writing of the deceased, establishing the contract and the time which hath elapsed during which rent was chargeable, and a statement of the sum due for such rent, with an oath of the creditor or agent indorsed thereon “that no part of the sum due for said rent or any security or satisfaction for the same hath been received except what (if any) is credited.
” The proof of a claim for rent in arrear, so as to render the same a—proof of. preferred claim, shall be the proofs and vouchers for rent aforesaid, and proof that the claim is such that an attachment therefor might be levied on said deceased’s goods and chattels in the hands of the administrator, but the preference given for rent is not to impair the landlord’s right of attachment if be thinks proper to exercise it. Sec. 336. The vouchers or proofs of any claim on open account shall—vouchers or open account. be a certificate of an oath taken by the creditor or agent since the death, indorsed on or annexed to the account, that the account as stated is just and true, and that he, the creditor, or any one for him. hath not received any part of the money stated to be due or any security or satisfaction for the same except what (if any) is credited. 1244 Sec. 337.
Deposition to prove claims taken out of the District.When an affidavit or deposition to prove claims shall have been taken out of the District, the same shall be good if taken and certified as aforesaid by a notary public, or by some person there authorized to administer an oath, and certified to be such under the seal of the clerk of any court of record, or by any officer having official cognizance of the fact, and the said oath shall be as available as if taken before an officer authorized to administer an oath within this District.
Sec. 338. Where creditor an executor, etc.If the creditor be an executor or an administrator the claim shall not be received, although vouched and approved as aforesaid, unless he make oath, to be certified as aforesaid, “that it does not appear from any book or writing of his decedent that any part of the said claim hath been discharged except what (if any) is credited, and that to the best of the deponent’s knowledge and belief no part of the said claim hath been discharged and no security or satisfaction given for the same except what (if any) is credited.
” Sec. 339. Claims of executors, etc.Claims of executors, and so forth.—In no case shall an executor or administrator be allowed to retain for his own claim against the decedent, unless the same be passed by the probate court, and every such claim shall stand on an equal footing with other claims of the same nature. Sec. 340. —no allowance in accounts of except on proof, etc.No executor or administrator shall be allowed in his account for any claim discharged by him, unless he produce the claim passed by the probate court, or proven as herein directed.
Sec. 341. Plea of limitations.Plea of limitations.—It shall not be considered as the duty of an executor or administrator to avail himself of the act of limitations to bar what he supposes to be a just claim, but the same shall be left to his honesty and discretion. Sec. 342. Claims may be disputed.Claims may be disputed.—No executor or administrator shall be. obliged to discharge any claim of which vouchers and proofs shall be exhibited as aforesaid, but may reject and at law dispute the same in case he shall have reason to believe that the deceased never owed the debt, or had discharged the same, or a part thereof, or had a claim in bar.
Sec. 343. Passing of claims not conclusive.Passing of claims not conclusive.—In no case shall the order made by the probate court that an account or claim will pass when paid be deemed of validity to establish such claim or account; but in case the executor or administrator thinks tit to contest the same such account or claim shall derive no validity from the order aforesaid, but shall be proved in the same manner as if no such order had been made. Sec. 344. Payment of claims.Payment of claims.—An executor or. administrator shall, within thirteen months from the date of his letters, or within such further time, not exceeding four months longer, as shall be allowed by the probate court on his making oath that he has reason to apprehend that the personal estate and assets which are or shall be in his hands will be insufficient to discharge the just debts of and claims against the deceased, discharge all such claims known to him or pay each claimant his just proportion of the money then in his hands (retaining as herein directed); it shall likewise be his duty once in every term of six months after the first distribution to make a distribution of the money which hath since come to his hands until he shall have fully administered, and on failure his administration bond may be put in suit.
Sec. 345. Notice of time and place of distribution.Notice of distribution.—In all cases where an executor or administrator is to make payment or distribution among the creditors of his decedent, he may give notice three successive weeks previously in some convenient newspaper of the time and place for making —failure of creditor to attend.it; and in case the creditor shall not attend in person or by agent or attorney to receive the amount or proportionable part of his claim, all 1245 interest on such claim or proportionable part shall cease from that time: *Provided,* That the executor or administrator shall at any time*Proviso*.—subsequent payment to. thereafter on demand pay the said claims, or a proportionable part, to the party, his agent, or attorney duly authorized; and whenever the executor or administrator shall proceed to make an additional paymentAdditional dividends, etc. or dividend he may advertise as aforesaid, and interest shall stop as aforesaid; and if at the time for the making of any additional dividend a just claim, established as hereinbefore directed, shall be exhibited, the creditor shall be entitled to such sum as will place him on an equal footing with those who have already received a dividend.
Sec. 346. Retaining for claims.—It shall be the duty of an executorRetaining for claim not exhibited. or administrator to pay all just claims against his decedent exhibited to him, or a just proportionable part thereof, according to the assets; and if any claim be known to him (although the same be not exhibited) he shall retain the same, or a just proportionable part, for the benefit of the creditor: *Provided,* That if any executor or administrator shall*Proviso.*—notice to creditor. have actual knowledge of a claim which has not been exhibited or passed he shall give notice in writing to the creditor, requiring the claim to be either exhibited or passed, as herein provided, within thirty days if such creditor be a resident and within ninety days if he be a nonresident of said District, and after the expiration of such period, and after the expiration of the period for distribution provided by section three hundred and forty-four hereof, the executor or administrator shall not be required to retain any part of the estate for the benefit of such creditor, unless in the meantime such claim shall have been so exhibited or passed.
Sec. 347. And if any action shall be commenced against an executorRetaining for judgment larger than executor thinks due. or administrator for the recovery of a larger debt or damages than he shall think due so that the same can not be ascertained before verdict, the executor or administrator shall be allowed to retain such sum to meet the said debt or damages as the probate court shall allow, and if more than enough be allowed, the party shall afterwards account for it, but nothing shall be retained on account of such further debt or damages where the court shall be satisfied that there will be money sufficient coming in after such dividend to meet the said damages, or a just proportion thereof, regard being had to other claims.
Sec. 348. If a claim be exhibited against an executor or administrator—for claims which he thinks disputable, etc. which he shall think it his duty to dispute or reject, he may retain in his hands assets proportioned to the amount of the claim, which assets shall be liable to other claims, or to be delivered up or distributed in case the claim be not established; and if on any claims exhibited and disputed as aforesaid the creditor or claimant shall not, within nine months after such dispute or rejection, commence a suit for recovery the creditor shall be forever barred; and the executor or administrator may plead this section in bar, together with the general issue or other plea proper to bring the merits of the cause to trial; and on any dividend to be made nine months after such dispute or rejection and failure to bring suit the executor or administrator may proceed to pay or distribute as if he had not knowledge or notice of such claim or as if it did not exist; but if the claim be put in suit within the nine months it may be ascertained by verdict or otherwise, and the court shall proceed as herein directed, regard being had to the rules herein laid down as to the notice to be given by the executor or administrator and distribution or payment be made after such notice.
Sec. 349. Claims made after distribution.—In case all the assetsClaims made after distribution. have been paid away, delivered, or distributed as herein directed, and a claim shall afterwards be exhibited of which the executor or administrator hath not knowledge or notice by the exhibition of the claim legally authenticated, as herein required, he shall not be answerableExecutor not answerable, etc. for the same; and if he be sued for any claim and shall make it appear 1246 to the court in which suit is brought that he hath so paid away, delivered, or distributed, and the plaintiff can not prove that the defendant had notice as aforesaid before such payment, delivery, or distribution, the court shall not proceed to give judgment (although the amount of the claim against the deceased may be ascertained) until the plaintiff shall be able to show further assets coming into the defendant’s hands, but if the plaintiff shall prove notice, as aforesaid, of the said claim against the defendant, judgment may be immediately given for such sum as the plaintiff ought to have received at the dividend, and fieri facias may issue and have effect, and further judgment may be given on coming in of further assets.
Sec. 350. Notice to creditors to rile claims. Notice to creditors to file claims.—No executor or administrator who shall, after the lapse of one year after the date of his letters, have paid away assets to the discharge of just claims shall be answerable for any claim of which he had no knowledge or notice by an exhibition of the claim legally authenticated: *Provided,* That at least six months before he shall make distribution he shall have caused to be inserted in so many newspapers as the probate court may direct an advertisement as follows, or fully to the following effect, namely:
“This is to give notice that the subscriber, of _ _ _, hath obtained from the probate court of the District of Columbia letters testamentary (or of administration) on the personal estate of_ _ _, late of_ _ _ deceased. All persons having claims against the deceased are hereby warned to exhibit the same, with the vouchers thereof legally authenticated, to the subscriber on or before the _ _ _ day of_ _ _ next; they may otherwise by law be excluded from all benefit of said estate.
“Given under my hand this of _ _ _” Sec. 351. —report and proof of notice.Report and proof of notice.—The executor or administrator may report to the court, with an affidavit of the proof thereof annexed, the fact of having given such notice, and the court, on being satisfied that their order has been complied with and the said notice has been given, shall indorse on said report their certificate that it has been proven to their satisfaction that said notice hath been given as therein reported, and shall order said report and certificate to be recorded among the records of the court.
Sec. 352. —weight of, as evidence.The said report and certificates shall be prima facie evidence, in all cases whatever, of the giving of such notice as therein stated. Sec. 353. —of copy.A copy of said report, certificate, and order, under the seal of the register of wills, shall be legal and competent evidence. Sec. 354. Docket of claims.Docket of claims.—The register of wills shall enter in a suitable book, to be provided by him for that purpose, all claims against a decedent as they are regularly passed by the probate court, giving the date of the passage, the name of the creditor, the character of such claim, whether on note or open account, bond, bill, obligation, —entry to be notice to executor.judgment, or other evidence of debt, and the amount thereof, and the entry of a claim upon such docket shall be taken as notice to the executor or administrator of its existence.
Sec. 355. —not evidence of justice of debt. etc.The claim thus entered shall not afford any evidence as to the justice or correctness of any debt therein entered whenever the same shall be controverted by an executor or administrator in any suit instituted for the recovery of such debt; nor shall the same be construed to take any debt out of the operation of a plea of limitations. Sec. 356. Priorities.Priorities.—In paving the debts of a decedent, after the payment of funeral expenses according to the condition and circumstances of the deceased, not exceeding six hundred dollars, an executor or administrator shall observe the following rides:
Claims for rent in arrear against deceased persons, for which an attachment might be levied by law. shall have preference. Judgments and decrees of courts 1247 in the District of Columbia shall next be wholly discharged. After such claims for rent, judgments, and decrees shall be satisfied, all other just claims shall be on an equal footing without priority or preference. If there be not sufficient to discharge all such judgments and decrees, a proportionate dividend shall be made between the judgment and decree creditors.
Sec. 357. No claims to be noticed unless legally authenticated.No claims to be noticed unless legally authenticated.—No executor or administrator shall be bound to discharge any claim against his decedent unless the same shall be exhibited to him. legally authenticated, or unless such claim shall have been passed by the probate court and entered by the register of wills upon his docket. Sec. 358. Meeting of creditors.—Any executor or administratorMeeting of creditors. shall be entitled to appoint a meeting of creditors on some day by the court approved, and passage of claims, payment, or distribution may be, there made under the court’s direction and control.
Sec. 359. Distribution of residue.—Whenever it shall appear byDistribution of residue. the first or other account of an executor or administrator that all the claims against, or debts of the decedent which have been known by or notified to him have been discharged or allowed for in his account, it shall be his duty to deliver up and distribute the surplus or residue of the personal estate not disposed of by any will, as hereinafter directed: *Provided,* That his power and duty with respect to future*Proviso.*Executor’s powers as to future assets to continue, etc. assets shall not cease; and after such delivery be shall not be liable for any debts afterwards notified to him. provided he shall have advertised as hereinbefore directed, unless assets shall afterwards come into his hands which shall be answerable for such debts.
Sec. 360. Suits on bonds against heirs.—No creditor by a bondSuits on bonds against heirs. which purports to bind the heirs of the obligor shall be entitled to sue the heirs at common law in respect of assets descended to them, but debts by specialty and by simple contract, without distinction, shall be payable primarily out of the personal estate, and. if that be insufficient, shall be payable equally and without preference out of the proceeds of the real estate. Subchapter Seven.
ACCOUNTS.Accounts. Sec. 361. First account within twelve months.—Every executorFirst account with in twelve months. and administrator shall render to the probate court within the period of twelve months from the date of his letters the first account of his administration. Sec. 362. Subsequent accounts.—If the first account shall notSubsequent ac-counts. show the estate which was on hand to be fully administered, another account shall be returned within six months thereafter, and within every term of six months thereafter an account shall be returned until the estate shall appear to be fully administered; and whenever a discovery or receipt of assets shall take place after rendering an account another account shall be rendered within six months thereafter; but an administrator shall not be obliged to render accounts when it appears to the court that the estate has been fully administered, except as to debts which the court shall deem desperate.
Sec. 363. Failure to account.—If an executor or administratorFailure to account. shall fail to return an account, as before directed, within the time limited by law, or within such further time as the probate court shall allow, not exceeding six months, his letters, on application of any person interested, may be revoked, and administration may be granted at the discretion of the court; and the administrator to whom letters may be granted shall be entitled to put the delinquent’s bond in suit, and to recover such damages thereon as the jury may find; and in assessing 1248 such damage the jury shall allow such sum as will be equal to six per centum per annum on the amount of the inventory or inventories from the time of the return or returns to the time of the verdict over and beyond the damages for such loss or injury as the estate may have sustained by the delinquent’s conduct.
Sec. 364. Assets to be charged.Assets to be charged.—In such account shall be stated, on one side, the assets which have come to his hands, according to the inventory or inventories returned to the court or received and appraised as herein directed, after the inventory or inventories returned, and the sales made under the court’s direction—that is to say, the inventory or inventories are to show the articles of the estate, and the sales the amount of their value, where they have been sold, and for articles so sold he shall be charged the price according to the return; and if any articles have been sold for credit and not yet paid for they shall be accounted for in a subsequent account, and all moneys received for debts due the decedent shall be included in said account.
Sec. 365. Disbursements and allowances.Disbursements and allowances.—On the other side shall be stated the disbursements by him made, namely: First. Funeral expenses, to be allowed at the discretion of the court, according to the condition and circumstances of the deceased, not exceeding six hundred dollars. Second. The debts of the deceased proved or passed as herein directed, and paid or retained. Third. The allowance for things lost, or which have perished without the party’s fault, which allowance shall be according to the appraisement.
Fourth. His commissions, which shall be at the discretion of the court, not under one per centum nor exceeding ten per centum on the amount of the inventory or inventories, excluding what is lost or perished. Fifth. His allowance for costs, attorneys’ fees, and extraordinary expenses which the court may think proper to allow. Sec. 366. Bequests to executors.Bequests to executors.—If anything be bequeathed to an executor by way of compensation, no allowance of commission shall be made unless the said compensation shall appear to the court to be insufficient; and if so, it shall be reckoned in the commission to be allowed by the court.
Sec. 367. Return to court of list of debts.List of debts.—Every executor or administrator may within one year after the date of his letters, return to the probate court a list of the debts due from his decedent which may be made known to him, stating the principal and the time at which interest is to commence on each respective debt, to which list of debts shall be annexed the oath of the administrator that the same is a correct list of the debts due from his decedent so far as the said debts have come to his knowledge; and every six months thereafter until the estate may be finally settled a similar return may be made of such debts as shall come to the knowledge of the executor or administrator within that period, which list of debts shall be recorded by the register of wills, and a copy thereof, certified under the hand of the register of wills and the seal of his office, shall be prima facie evidence of the amount of debts due by the decedent in any court where the administrator alleges that he has not assets sufficient to discharge the claim in controversy or any part thereof.
Sec. 368. —weight as evidence.Such lists shall not afford any evidence of the justice or correctness of any claim therein when controverted by the executor or administrator in any suit instituted for the recovery of such debt, nor shall the same be construed to take any debt out of the operation of any plea of limitation. Sec. 369. Court may decree investment of funds.Investment of funds-Whenever, under the provisions of a will, it shall be necessary for an executor or an administrator cum testamento annexo to retain in his hands the personal estate or any part thereof after all just claims are discharged, as where money or some other thing is directed to be paid at a distant period or upon a contin1249gency, the probate court shall have the power, on the application of such executor or administrator or of a party interested, to decree or give directions in relation thereto: and it shall be the duty of said executor or administrator to apply to the said probate court, and the said court shall have full power to decree or direct what part of the personal estate shall be retained or appropriated for the purpose and in what manner it shall be disposed of and the legacy or benefit intended by the will shall be secured to the person to be entitled at a future period or contingency, and how the necessary part of the personal estate to be appropriated for the purpose shall be prevented from lying dead or being unproductive, and how it shall be applied, agreeably to the intent of the will or the construction of law, in case the contingency shall not take place.
Sec. 370. Executor of deceased executor, and so forth.—TheAccount of executor of deceased executor. executor or administrator of a deceased executor or administrator who shall die before an account of his administration hath been rendered shall render an account showing the amount of the assets received and the payments made by his decedent, and the account shall, if found by the court to be correct, be admitted to record as other administration accounts. Sec. 371. Accounts of deceased executrix, and so forth.—The—of deceased executrix, etc. husband of an executrix or administratrix who shall die before a final account of her administration shall have been settled shall render such account, if required by the court, showing thereby the amount of money and property received and of payments and disbursements made by such executrix or administratrix, or that may have been received or paid by him. and not before accounted for with the court; and the account so rendered shall, if found by the court to be correct, be admit-ted to record as other administration accounts in cases where the executrix or administratrix rendered them in person; and in case of refusal of the husband to render such account, the court may proceed against him by attachment, and may commit him until he shall render such account.
Sec. 372. Lost property.—The probate court shall have power toAllowance to executor for lost property. make allowance to any executor, administrator, or collector for property of the decedent which hath perished or been lost without the fault of the party: and no profit shall be made and no loss sustained—decrease, etc., of estate. by an executor or administrator in the increase or decrease of the estate under his management; but he shall return an inventory and account for such increase, and may be allowed for such decrease on the settlement of the final or other account.
Subchapter Eight. DISTRIBUTION TO NEXT OF KIN AND LEGATEES.Distribution of surplus to next of kin and legatees. Sec. 373. Parties entitled.—When the debts of an intestate,Parties entitled. exhibited and proved or notified and not barred, shall have been discharged or settled, or allowed to be retained for as herein directed, the administrator shall proceed to make distribution of the surplus as follows: Sec. 374. If the intestate leave a widow and no child, parent, grandchild,—widow’s share. brother, or sister, or the child of a brother or sister of the said intestate, the said widow shall be entitled to the whole.
Sec. 375. If there be a widow and a child or children, or a descend-ant or descendants from a child, the widow shall have one-third only. Sec. 376. If there be a widow and no child or descendants of the intestate, but the said intestate shall leave a father or mother, or brother or sister, or child of a brother or sister, the widow shall have one-half. 1250 Sec. 377. —exclusive of widow’s share.The surplus, exclusive of the widow’s share, or the whole surplus (if there be no widow), shall go as follows:
Sec. 378. If there be children and no other descendants, the surplus shall be divided equally among them. Sec. 379. If there be a child or children and a child or children of a deceased child, the child or children of such deceased child shall take such share as his, her, or their deceased parent would, if living, be entitled to. and every other descendant or descendants in existence at the death of the intestate shall stand in the place of his. her, or their *Provisos.*—advances to child, etc.deceased ancestor: *Provided,* That if any child or descendant shall have been advanced by the intestate, by settlement or portion, the same shall be reckoned in the surplus, and. if it be equal or superior to a share, such child or descendant shall be excluded, but the widow shall have no advantage by bringing such advancement into reckoning: *And provided further,* That, if any child or descendant shall have received from the intestate any real estate by way of advancement, which shall not be equalized under the provisions of section nine hundred and fifty- nine of this code, the value of any such advancement shall be treated —maintenance not deemed advancement.as personality for the purposes of this section: but maintenance or education or money or realty, given without a view to a portion or settlement in life, shall not be deemed advancement: and in all cases those in equal degree claiming in the place of an ancestor shall take equal shares.
Sec. 380. Order of distribution.If there be a father and no child or descendant, the father shall have the whole: and if there be a mother and no father, child, or descendant, the mother shall have the whole. Sec. 381. If there be a brother or sister, or child or descendant of a brother or sister, and no child, descendant, or father or mother of the intestate, the said brother, sister, or child or descendant of a brother or sister shall have the whole. Sec. 382. Every brother and sister of the intestate shall be entitled to an equal share, and the child or children, or descendants of a brother or sister of the intestate, shall stand in the place of their deceased parents, respectively.
Sec. 383. After children, descendants, father, mother, brothers, and sisters of the deceased and their descendants, all collateral relations in equal degree shall take, and no representation among such collaterals shall be allowed: and there shall be no distinction between the whole and half blood. Sec. 384. If there be no collaterals, a grandfather may take, and if there be two grandfathers they shall take alike; and a grandmother, in ease of the death of her husband, the grandfather, shall take as he might have done.
Sec. 385. Death before distribution.If any person entitled to distribution shall die before the same shall be made, his or her share shall go to his or her representatives. Sec. 386. Posthumous children.Posthumous children of intestates shall take in the same manner as if they had been born before the decease of the intestate, but no other posthumous relation shall be considered as entitled to distribution in his or her own right. Sec. 387. Illegitimate children.The illegitimate child or children of any female and the issue of any such illegitimate child or children shall be capable to take from their mother, or from each other, or from the descendants of each other, in like manner as if born in lawful wedlock.
When an illegitimate child or children shall die leaving no descendants, or brothers or sisters, or the descendants of such brothers or sisters, then and in that case the mother of such illegitimate child or children, if living, shall be entitled as next of kin, and if the mother be dead the next of kin of the mother shall take in like manner as if such illegitimate child or children had been born in lawful wedlock. 1251 Sec. 388. If there be no widow or relations of the intestate withinEscheat. the fifth degree, which shall be reckoned by counting down from the common ancestor to the more remote, the whole surplus shall belong to the District of Columbia, to be disbursed by the Commissioners of the District for the benefit of the poor.
Sec. 389. Distribution of specific property.—In case the surplusDistribution of specific property. remaining in the administrator’s hands after payment of all just debts exhibited and proved or notified and not barred, or after retaining for the same, shall consist of specific property or articles mentioned in the inventory or inventories, the administrator, if he can not satisfy the parties, may apply to the court to make distribution, and the court may appoint a day for making distribution and by summons call on the said parties to appear; and the said court may. at the appointed time, proceed to distribute.
But if a majority in point of value shall neglect to appear, or appearing shall object to the distribution of the articles, or if the court shall deem a sale of the said articles or any part of them more advantageous, a sale shall be directed accordingly, and the rules herein laid down relative to a sale by order of the said court shall be observed. Sec. 390. Whenever a distribution of specific articles is to be made—by two disinterested persons. the probate court may appoint two disinterested persons, not in any way related to the parties concerned, to make such distribution among the persons entitled as to them shall seem meet and proper; or if, in—sale. their opinion, upon a view of such articles, no distribution among the persons entitled could be by them made which would operate equally, but a sale thereof would be more advantageous to such persons, they shall return to the probate court their opinion in writing, and the court shall thereupon order a sale of such articles, upon reasonable notice, and cause the proceeds of such sale to be equally distributed among the parties entitled.
Sec. 391. Partial distribution.—When any person entitled, afterPartial distribution. payment of debts, shall be in want of subsistence or greatly straitened in his circumstances, and shall apply to the probate court by petition, and satisfy the court that he is in want of subsistence or greatly straitened in circumstances, and that it probably will not require more than one-half of the assets to discharge the debts, the court may direct the administrator to deliver to the petitioner any part of what the court shall suppose will be his distributive share, or any part of a legacy or bequest in money not exceeding one-third part, the said petitioner giving bond, with security approved by the court, to the administrator for returning the same or an equivalent, with interest, whenever so directed by the court; and the court shall have power to determine in a summary way on any such petition, after summons against such administrator duly returned “summoned” or “non est.
” Sec. 392. Specific bequests.—And the court, in like manner, onSpecific bequests. any petition by a person in such circumstances to whom a specific legacy or bequest has been made, being satisfied that the assets, exclusive of all specific legacies, will not be nearly exhausted by debts, may direct the executor or administrator with the will annexed to deliver to the petitioner the said specific legacy or bequest on his giving bond as aforesaid. Sec. 393. Bequest to female.—Where a bequest of personal propertyBequest to female. or money is made to a female and directed by the will to be paid on her attaining to full, mature, or to a lawful age, such female shall be entitled to receive and demand such personal property or money on her arriving at the age of eighteen years or being married.
Sec. 394. Meeting of legatees or next of kin.—Any administratorMeeting of legatees or next of kin. shall be entitled to appoint a meeting of persons entitled to distributive shares or legacies or a residue, on some day by the court approved, and payment or distribution may be there made under the court’s direction and control. 1252 Chapter Six. Adoption of children.ADOPTION OF CHILDREN. Sec. 395. —petition.Jurisdiction is hereby conferred on any judge of the supreme court of the District of Columbia to hear and determine any petition that may be presented by a person or a husband and wife resid mg in the District of Columbia, praying the privilege of adopting any minor child as his or her or their own child, and making such minor —order, etc.child an heir at law.
If the judge shall find, upon the hearing of such petition, that the petitioner is a proper person to have custody of such child, and that the parent or parents or guardian of such child have given their permission for such adoption, he shall enter an order upon the records of the court legalizing such adoption and making such child an heir at law of such petitioner, the same as if such child was born to such petitioner. If the child has no parent or guardian the judge shall appoint a guardian ad litem.
Chapter Seven. Aliens.ALIENS. Sec. 396. Right to hold real estate.Real estate.—It shall be unlawful for any person not a citizen of the United States or who has not lawfully declared his intention to become such citizen, or for any corporation not created by or under the laws of the United States or of some State or Territory of the United States, to hereafter acquire and own real estate, or any interest therein, in the District of Columbia, except such as may be acquired *Proviso.*—where secured by treaty.by inheritance: *Provided,* That the prohibition of this section shall not apply to eases in which the right to hold and dispose of lands in the United States is secured by existing treaties to the citizens or subjects of foreign countries, which rights, so far as they exist by force of any such treaties, shall continue to exist so long as such treaties are in force, and no longer, and shall not apply to the ownership of foreign legations or the ownership of residences by representatives of foreign governments or attaches thereof.
Sec. 397. Corporations.Corporations.—No corporation or association of which more than twenty per centum of the stock is or may be owned by any person or persons, corporation or corporations, association or associations not citizens of the United States shall hereafter acquire or own any real estate hereafter acquired in the District of Columbia. Sec. 398. Forfeiture.Forfeiture.—All property acquired or held or owned in violation of the provisions of this chapter shall be forfeited to the United States, and it shall be the duty of the United States attorney for the District to enforce every such forfeiture by bill in equity or other proper process.
And in every such suit or proceeding that may be commenced to enforce the provisions of this chapter it shall be the duty of the court to determine the very right of the matter, without regard to matters of form, joinder of parties, multifariousness, or other matters not affecting the substantial rights either of the United States or of the other parties concerned. Chapter Eight. Amendments.AMENDMENTS. Sec. 399. Proceedings.Proceedings.—In all actions at law the court shall have power to order and allow amendments to be made in all proceedings whatsoever, so as to have the merits of the controversy fairly tried, before the jury retire to make up their verdict, in cases of jury trial, 1253and at any time before judgment is entered in cases of issues of law or fact tried by the court.
Sec. 400. Continuance.—No such amendment shall entitle eitherContinuance. party, as of course, to a postponement of the trial or to a continuance of the ease to the next term of the court: hut the court shall allow a postponement or continuance in case the ends of justice require it, and upon such terms as the court shall deem proper. If such amendment is ordered and a postponement or continuance is allowed after the jury have been sworn the jury shall be discharged. Sec. 401.
Costs.—In all cases of amendment such costs shall beCosts. allowed the party against whom the amendment is made as the court may determine. Chapter Nine. APPRENTICES.Apprentices. Sec. 402. By whom bound.—A minor child may be bound as anBy whom bound. apprentice by his guardian; or, if none, by his father; or. if neither father nor guardian, by his mother, with the consent, entered of record, of the probate court, or without such consent if the minor, being fourteen years of age, agree in writing to be so bound: or by the probate court as hereinafter provided.
Sec. 403. Term.—The utmost term of any apprenticeship shall beTerm. until the apprentice attains the age of twenty-one if a boy, or eighteen years if a girl. Sec. 404. Contract.—The writing by which such minor is boundContract. as apprentice shall specify his age and what art, trade, or business he is to be taught The master shall be bound to teach the same, and also to teach him reading, writing, and common arithmetic, and to sup- ply him with suitable clothing and maintenance, and pay such amount, if any. as may be agreed upon for his services and expressed in the contract.
The writing by which any minor is bound shall be tiled in the office of the register of wills, and until it be so filed the master shall not be entitled to the services of said apprentice. Sec. 405. Complaints.—The probate court, during the term of anyComplaints. apprenticeship, may hear complaint of the apprentice, indentured child, or anyone in his behalf, against the master or person to whom indentured, for undeserved or excessive correction, want of instruction, insufficient allowance of food, clothing, or lodging, or nonpayment of what was agreed to be paid; or the complaint of the master or person to whom indentured against the apprentice or indentured child for desertion or other misconduct: and. after reasonable notice of the complaint to the party against whom it is made, may determine the matter in a summary way and discharge either party from the contract of apprenticeship, or make such order as the case may require.
Sec. 406. Removal of apprentice.—No master of an apprenticeRemoval of apprentice. shall send or carry his apprentice out of the District, except in the case of mariners; and the said probate court, on being credibly informed that any master designs so to remove his apprentice, may require him to give bond conditioned against such removal, and on his refusal so to do may discharge the apprentice. Sec. 407. Assignments.—The contract of apprenticeship, with theAssignments. approbation of said court, may be assigned by the master, or, after his death, by his personal representatives, on such terms as the court may prescribe.
Sec. 408. Concealment.—If any person shall conceal, harbor, orConcealment. facilitate the running away of an apprentice, he shall be liable to an action therefor by the master, either in the said supreme court or 1254before any justice of the peace, according to the amount of damages claimed. Sec. 409. Form of contract.Form of contract.—The form of the contract of apprenticeship shall be the following, or to the same effect: This indenture witnesseth, that it is mutually agreed between _ _ _ _ _ and _ _ _ _ _ that_ _ _ _ _, a minor, aged _ _ _ _ _ years shall be taken and held as an apprentice for the term of _ _ _ _ _ years, by the said _ _ _ _ _; and the said _ _ _ _ _ contracts and covenants with the said _ _ _ _ _ to faithfully and carefully instruct the said _ _ _ _ _ in all the handicraft of a _ _ _ _ _ (And the said _ _ _ _ _ further contracts and covenants that the said minor shall be allowed, as compensation for his services, at the rate of _ _ _ _ _ ).
Witness our hands and seals this _ _ _ _ _ day of _ _ _ _ _ ______ ______. [Seal.] ______ ______. [Seal.] Acknowledged before me, a notary public (or justice of the peace), this _ _ _ _ _ day of _ _ _ _ _ A B, Notary Public. Sec. 410. To whom money to be paid.To whom money to be paid.—The money which the master is to pay shall be paid to the father or other party contracting with the master, or to the minor, in whole or in part, as said probate court may direct. Sec. 411. Jurisdiction of probate court.Jurisdiction of probate court.—The probate court may bind out as an apprentice, or indenture to any proper person, any orphan child, any child abandoned by its parents or guardian, any child of habitually drunken, vicious, or unfit parents, when any such child as aforesaid shall not be in the care or custody of some person who is providing for its comfortable maintenance and education, and also any child habitually begging on the streets or from door to door, and any child kept in vicious or immoral associations.
The terms of such apprenticeship or of such indenture shall be such in each case as the court may deem proper, having in view the future interests and welfare of the child. Chapter Ten. Arbitration and award.ARBITRATION AND AWARD. Sec. 412. —in what cases.In what cases.—By consent of the attorneys or solicitors on both sides, manifested by written stipulation, any common-law or admiralty or equity cause pending in the supreme court of the District of Columbia, except suits for divorce or nullity of marriage, or suits wherein the defendant to be affected by the result is an infant, idiot, or lunatic, may be referred for trial, upon the issues of law and fact therein involved, by an order of court, to some referee consented to by the parties or their counsel and named in the order.
Sec. 413. Oath of referee.Oath of referee.—The referee, before proceeding to hear the cause, shall be sworn faithfully and fairly to try the issues and determine the questions referred to him. as the case may require, and to make a just and true award thereof. —time for hearing.He shall thereupon fix a time for the hearing of said cause and notify all parties thereof. Sec. 414. Powere of referee.Powers.—He shall have power to administer oaths, to cause subpaenas and subpoenas duces tecum to be issued to witnesses and to compel their attendance by attachment, and to punish a witness by line and imprisonment for contempt of court, for nonattendance, or refusal to be sworn, or to testify, He shall have the same power to adjourn from time to time, and to preserve order in the trial or hearing before him, and to punish any violation thereof, as a court in regular session. 1255 Sec. 415.
Depositions.—In suits in equity the referee shall haveDepositions. power to take depositions in cases where they are now taken before an examiner in chancery, and in all suits shall receive and consider all depositions and other evidence in like manner as where the trial or hearing is by the court. He may allow amendments to process or pleadings, pass interlocutory orders, award costs, and hear and deter-mine all questions arising in the cause, with like effect as if done by order of the court.
Sec. 416. Award, when to be filed.—Within sixty days afterAward, when to be filed. the reference is made, unless a longer time is agreed upon by both parties or allowed by the court, the referee, shall tile with the clerk a written award and give notice thereof to each party interested; other-wise either party may notify the adverse party, or his attorney or solicitor, that he elects to end the reference, and the cause shall proceed as if no reference had been made. Sec. 417.
Form of award.—The final award of the referee shallForm of award. state separately the facts found by him and his conclusions of law, and direct the judgment or decree to be entered thereupon, including a determination as to costs, and in common-law cases the finding as to the facts shall have the effect of a verdict of a jury. Sec. 418. Setting aside.—On motion filed within twenty days afterSetting aside. notice of the filing of the award to the parties or their attorneys, the court may set aside his award because of corruption or misconduct of the referee, or because he exceeded his powers or so imperfectly executed them that a final award was not made, or may modify his award in case of an evident miscalculation of figures, or if it relates to matter not submitted, or is imperfect in form.
Sec. 410. Judgment.—Judgment or decree, if no such motion isJudgment. made, or it is overruled, or the award is only modified as aforesaid, shall thereupon be entered by the clerk as in the award directed, and shall stand as the. judgment of the court. Sec. 420. Appeals in equity causes.—An appeal may be taken toAppeals in equity causes. the court of appeals from such final decree in equity causes in like manner as from decrees rendered by the court. Sec. 421. Exceptions.—Upon the trial of issues of fact in an actionExceptions. at law exceptions may be taken to the rulings of the referee upon the admissibility of evidence or upon questions of law arising during the hearing; and a refusal to make a finding upon a question of fact, upon sufficient evidence in law to sustain it. or making a finding of tact without sufficient evidence in law to sustain it. shall be deemed such a ruling upon a question of law.
Sec. 422. Such exceptions must be taken at the time the rulings—to be in writing, etc. excepted to are made, and must be reduced to writing by the exceptant, or they may be noted on the minutes of the referee and afterwards stated in a bill of exceptions, which shall be settled in the same manner as where the trial is by a jury, as directed by the rules of court, the referee exercising the same power therein as the trial justice in case of a jury trial. Sec. 423. Appeals in common-law cases.—An appeal may be takenAppeals in common law cases. to the court of appeals from a final judgment in a common-law case, entered upon the award of the referee, in the same manner and with like effect as from a judgment rendered by the court on the verdict of a jury.
Sec. 424. Record.—The exceptions taken as aforesaid shall constituteRecord. a part of the record upon which an appeal from the judgment shall be heard. It shall not be necessary, however, to take exceptions to the conclusions of law appearing upon the face of the referee’s award; but any error therein shall be considered on appeal as if presented in a formal bill of exceptions. Sec. 425. Failure of referee to act.—In case of the disabilityFailure of referee to act. of the referee, or his failure or refusal to proceed with the reference, 1256or his misconduct, the court which passed the order of reference may rescind the same.
Sec. 426. Fees.Fees.—The fees of the referee may be fixed by rule of court or agreement of the parties, and taxed as part of the costs of the cause. Sec. 427. Several referees.Several referees.—The reference may be to more per-sons than one, provided they be an odd number of persons, in which case all must meet together and hear all the allegations and proofs of the parties; but a majority may determine all questions submitted to or arising before them. Sec. 428. Death of party.Death of party.—If the death of either party shall happen pending the trial or hearing of a cause before a referee, the reference shall be at an end.
If such death shall occur after the cause is submitted to the referee for final judgment or decree, the referee shall return his award, and thereupon the representative of such decedent may appear, or be required by the adverse party to appear, as provided in chapter two, and the cause thereupon be proceeded with as if such death had not occurred. Sec. 429. Death of referee.Death of referee.—If any referee shall die before making his award, the court shall, upon the consent of the parties or their counsel, appoint a referee, who shall have the same power to act as if originally appointed by mutual consent of the parties.
Sec. 430. Common-law references.Common-law references.—Nothing herein contained shall prevent the court from referring a cause to an arbitrator, subject to the ratification of his award by the court, according to the course of the common law and the former practice of the court. Chapter Eleven. Assignment of choses in action.ASSIGNMENT OF CHOSES IN ACTION. Sec. 431. Judgments.Judgments.—A judgment or money decree may be assigned in writing, and upon the assignment thereof being filed in the clerk’s office the assignee may maintain an action or sue out a scire facias or execution on said judgment in his own name, as the original plaintiff might have done.
Sec. 432. Bonds.Bonds.—Any bond or obligation under seal for the payment of money may be assigned under the name and seal of the obligee therein named, and the assignee may maintain an action thereon in his own name. Sec. 433. Nonnegotiable contracts.Nonnegotiable contracts.—All nonnegotiable written agreements for, the payment of money, including nonnegotiable bills of exchange and promissory notes, or for the delivery of personal property, all open accounts, debts, and demands of a liquidated character. except claims against the United States or the salaries of public officers, may be assigned in writing, so as to vest in the assignee a right to sue for the same in his own name.
Sec. 434. General assignments.General assignments.—In case of a general assignment which shall include choses in action, it shall not be necessary to execute a separate assignment of each chose in action, but the assignee shall be entitled, by virtue of the general assignment, to sue in his own name on the several choses in action included therein. Chapter twelve. Assignment of insolvent debtors.ASSIGNMENT OF INSOLVENT DEBTORS. Sec. 435. Inventory.Inventory.—In all cases of voluntary assignments here-after made in the District of Columbia for the benefit of creditors, the debtor shall annex to such assignment an inventory, under oath or affirmation, of his estate, real and personal, according to the best of 1257his knowledge, and also a list of his creditors, their respective residences and places of business, if known, and the amounts of their respective demands; but such inventory shall not be conclusive as to the amount of the debtor’s estate, and such assignment shall vest in the assignee the title to any other property, except what is legally exempt, belonging to the debtor at the time of making the assignment and comprehended within the general terms of the same.
Sec. 436. The assignee in every such assignment shall be a residentAssignee’s residence, etc.; assignment to be acknowledged. of the District of Columbia, his assent shall appear in writing in or at the end of, or indorsed on the assignment, and the assignment shall be invalid unless duly acknowledged and recorded within live days after its execution in the land records of the said District. The trust created by such assignment shall be executed under the supervision and control of the supreme court of the District of Columbia.
Sec. 437. Bond of assignee.—Immediately upon the filing of suchBond of assignee. assignment for record it shall be the duty of the assignee to execute and tile in the clerk’s office of the supreme court of the District his bond to the United States, in an amount and with security to be approved by the justice holding the equity court, conditioned for the faithful performance of his duties according to law. and said court may from time to time require said assignee, or any trustee appointed in his place, to give additional security whenever the interests of the creditors demand the same.
Sec. 438. Appointment by court.—If the assignee named in anyRemoval, etc., of assignee and appointment of trustee by court. such assignment shall fail or refuse to comply with any of the requirements aforesaid, the justice holding the equity court may. on the application of the assignor or any creditor interested in such assignment, remove said assignee and appoint a trustee in his place to execute the trusts created by said assignment, who shall give bond as the court may require.
And said court shall have power to accept the resignation of any assignee or trustee, and in case of his resignation, death, or removal from the District to appoint a trustee in his place. The court shall also have power, for cause shown, on the application of any surety, creditor, or other person interested, to remove any assignee or trustee and appoint a trustee in his place, and to make and enforce all orders necessary to put the newly appointed trustee in possession of all property, moneys, books, papers, and other effects covered by the assignment.
And in case of the death of any assignee or trustee the court may require his executor or administrator to settle the account of said assignee or trustee and to deliver over to his successor all property and other effects belonging to the trust, in default of which said successor may bring suit upon the bond of said deceased assignee or trustee. Sec. 439. Duties of assignee.—It shall be the duty of the assigneeDuties of assignee. or trustee, after giving bond as aforesaid, to collect and take into his possession all the property and effects covered by the assignment, and to that end he may bring suit in his own name to recover debts due or property belonging to the assignor and embraced in the assignment.
And the court may require the assignor to be examined under oath touching his said property, and may pass all orders necessary to prevent any fraudulent transfer of or change in the property of the assignor. The said assignee or trustee shall return inventories of the assets coming to his hands and, under the direction of the court, sell and dispose of the same, and his conveyance of any property of the assignor, real or personal, shall transfer the entire title of the assignor therein to any purchaser.
When the assets have been converted into money the said assignee or trustee shall settle his accounts and make distribution among the creditors, under the direction of the court, according to the usual course of proceeding in equity in creditor’s suits. 1258 Sec. 440. Preferences to be void.Preferences to be void.—Every provision in any voluntary assignment hereafter made for the payment of one debt or liability in preference to another shall be void, and all debts and liabilities within the provisions of the assignment shall be paid pro rata from the *Proviso.*—liens, etc., existing before assignment unaffected.assets: *Provided*, That nothing herein contained shall be held to affect the priority of liens and incumbrances created bona tide and existing before the execution of such assignment.
Sec. 441. Creditors to be equal.Creditors to be equal.—Any proceeding instituted under this law by one or more creditors shall be deemed to be for the equal benefit of all creditors, but the court may make such allowance to the creditor or creditors instituting the same, out of the fund to be distributed. for expenses, including counsel fees, as may be just and equitable. Sec. 442. Fraudulent assignments.Fraudulent assignments.—Nothing herein contained shall prevent any creditor otherwise entitled from attacking any assignment as made to hinder, delay, or defraud the creditors of the assignor, and whenever any such assignment shall appear to the court to have been made with such intent, the court may enjoin any proceeding thereunder, and upon finally decreeing the same to be void may appoint a trustee with power to take possession of all the effects of the debtor and may pass and enforce all orders necessary to put him in possession of the same, and said trustee shall qualify in the same manner and per-form the same duties as the trustee provided for in the aforegoing sections.
Sec. 443. Notices to creditors.Notices to creditors.—In all eases of assignment the court shall require the trustee or trustees, whether named in the assignment or appointed by the court, in pursuance of the sections aforesaid, to give notice as the court may think proper to all the creditors of the assignor to produce and prove their respective claims against the assignor before the auditor of the court, to the end that they may be fairly adjudicated and the said creditors may share equally the assets of the insolvent assignor, subject, however, to any legal priorities created by valid incumbrances antedating the assignment.
Sec. 444. Exempt property not to be included.Exempt property not to be included.—No assignment for the benefit of creditors shall be construed to include or cover any property exempt from levy or sale on execution unless the exemption is expressly waived; and the court may direct the manner in which exempt property may be ascertained and set aside before any sale by the trustee or trustees. Chapter thirteen. Attachments.ATTACHMENTS. Sec. 445. Filing of affidavit in causes.Causes.—In any action at law in the supreme court of the District for the recovery of specific personal property, or a debt, or damages for the breach of a contract, expressed or implied, if the plaintiff, his agent or attorney, either at the commencement of the action or pending the same, shall file an affidavit, supported by the —contents of.testimony of one or more witnesses, showing the grounds of his claim and setting forth that the plaintiff has a just right to recover what is claimed in his declaration, and where the action is to recover specific personal property stating the nature and, according to affiant’s belief, the value of such property and the probable amount of damages to which the plaintiff is entitled for the detention thereof, and where the action is to recover a debt stating the amount thereof, and where the action is to recover damages for the breach of a contract setting out, specifically and in detail, the breach complained of and the actual damage resulting therefrom, and also stating either, first, that the defendant is a foreign corporation or is not a resident of the District, or has been absent therefrom for at least six months, and has estate or debts owing to said defendant in said District; or, second, that the defend1259ant evades die service of ordinary process by concealing himself or temporarily withdrawing himself from the District; or, third, that he has removed or is about to remove some or all of his property from the District, so as to defeat just demands against him; or, fourth, that he has assigned, conveyed, disposed of. or secreted, or is about to assign, convey, dispose of, or secrete his property with intent to hinder, delay, or defraud his creditors; or, fifth, that the defendant fraudulently contracted the debt or incurred the obligation respecting which the action is brought, the clerk shall issue a writ of attachment and—issue of writ. garnishment, to be levied upon so much of the lands, tenements, goods, chattels, and credits of the defendant as may be necessary to satisfy the claim of the plaintiff: *Provided,* That the plaintiff shall first file in*Proviso.*—plaintiff to file bond the clerk’s office a bond, executed by himself or bis agent, with security to be approved by the clerk, in twice the amount of his claim, conditioned to make good to the defendant all costs and damages which he may sustain by reason of the wrongful suing out of the attachment.
Sec. 446. Service.—Every such writ shall require the marshal toService of notice. serve a notice on the defendant, if he be found in the District, and on any person in whose possession any property or credits of the defendant may be attached, to appear in said court on or before the twentieth day, exclusive of Sundays and legal holidays, after service of such notice, and show cause, if any there be. why the property so attached should not be condemned and execution thereof had; and the marshal’s return shall show the fact of such service.
If the defendant is returnedNotice by publication. “Not to be found.” such notice shall be given by publication to the following effect, namely: And every such order shall be published at least once a week for three successive weeks or oftener, or for such further time and in such manner as may be ordered by the court. Sec. 447. Interrogatories.—In all cases of attachment the plaintiffInterrogatories. may exhibit interrogatories in writing in such form as may be allowed by the. rules or special order of the court, to be served on any garnishee, concerning any property of the defendant in his possession or charge, or any indebtedness of his to the defendant at the time of the service of the attachment, or between the time of such service and the filing of his answers to said interrogatories; and the garnishee shall file his answers under oath to such interrogatories within ten days after service of the same upon him.
In addition to the answers to written interrogatories required of him. the garnishee may, on motion, be required to appear in court and be examined orally under oath touching any property or credits of the defendant in his hands. Sec. 448. Additional attachments.—Upon the application of theAdditional attachments. plaintiff, his agent, or attorney, other attachments founded on the original affidavits may be issued from time to time, to be directed, executed, and returned in the same manner as the original, and with 1260 out further publication, against a nonresident or absent defendant, and without additional bond, unless required by the court.
Sec. 449. Sufficiency of bond.Sufficiency of bond.—In case the defendant or any other person interested in the proceedings is not satisfied with the sufficiency of the surety or sureties or with the amount of the penalty named in the bond aforesaid, he may apply to the court for an order requiring the plaintiff to give an additional bond in such sum and with such security as may be approved by the court: and in case of the plaintiff’s failure to comply with any such order the court may order the attachment to be quashed and any property attached or its proceeds to be returned to the defendant or otherwise disposed of, as to the court may seem proper.
Sec. 450. Action for debts not due.Debts not due. A creditor may maintain an action and have an attachment against his debtor’s property and credits, as aforesaid. where his debt is not yet due and payable, provided the plaintiff, —filing, etc., of affidavit.his agent, or attorney shall file in the clerk’s office, at the commencement of the action, an affidavit, supported by the testimony of one or more witnesses, as to the amount and justice of the claim and the time when it will be payable, and also setting forth that the defendant has removed or is removing or intends to remove a material part of his property from the District with the intent or to the effect of defeating just claims against him should only the ordinary process of law be used to obtain judgment against him, and shall also comply with the condition as to tiling a bond prescribed by section four hundred and forty-five aforesaid.
The plaintiff in such case shall not have judgment before his claim becomes due: and in case the attachment is quashed the action shall be dismissed, but without prejudice to a future action. Sec. 451. Traversing affidavits.Traversing affidavits.—If the defendant in any case shall file affidavits traversing the affidavits filed by the plaintiff the court shall determine whether the facts set forth in the plaintiff’s affidavits as ground for issuing the attachment are true, and whether there was just ground for issuing the attachment: and if. in the opinion of the court, the proofs do not sustain the affidavit of the plaintiff', his agent, or attorney the court shall quash the writ of attachment; and this issue may be tried by the court or a judge at chambers after three days notice.
The said issue may be tried as well upon oral testimony as upon affidavits, and, if the the court shall deem it expedient, a jury may be impaneled to try the issue. Sec. 452. On what levied.On what levied.—The attachment may be levied on the lands and tenements, whether leasehold or freehold, and personal chattels of the defendant not exempt by law. whether in the defendant’s or a third person’s possession, and whether said defendant’s title to said property be legal or equitable, and upon his credits in the hands of a third person, whether due and payable or not. and upon his undivided interest in a partnership business.
Every attachment shall be a lien on the property attached from the date of its delivery to the marshal, and if different persons obtain attachments against the same defendant the priorities of the liens of said attachments shall be according to the dates when they were so delivered to the marshal. Sec. 453. How levied on lands.How levied.—The attachment shall be sufficiently levied on the lands and tenements of the defendant by said property being mentioned and described in an indorsement on said attachment, made by the officer to whom it is delivered for service, to the following effect, namely:
Levied on the following estate of the defendant, A B, to wit: (Here describe) this_ _ _ _ _day of_ _ _ _ _ C D, Marshal. And by service of a copy of said attachment, with said indorsement, and the notice required by section four hundred and forty-six aforesaid on the person, if any, in possession of said property. 1261 Sec. 454. The attachment shall be levied upon personal chattels by—on personal chattels. the officer taking the same into his possession and custody, unless the—unless defendant shall give bond. defendant shall give to the officer his undertaking, to be filed in the cause, with sufficient security, to the following effect, namely:—form of.
Or unless the person in whose possession the property is attached—or person in whose possession the property is attached. shall give to the officer, to be filed in the cause, an undertaking in the following form or to the same effect, namely:—form of. And in either of said eases the attachment shall be sufficiently levied by the taking of the undertaking, as above provided for; and in the latter case the recital of the undertaking shall contain a sufficient description of the property and its value, which value shall be ascertained by an appraisement to be made under direction of the officer and returned with the writ.
Sec. 455. Releases.—Either the defendant or the person in whoseReleases.—bond required. possession the property was may obtain a release of the same from the attachment, after it has been taken into the custody of the marshal and the writ has been returned, by giving the undertaking required of him as aforesaid, with security to be approved by the court. The plaintiff may except to the sufficiency of any undertaking—exception to sufficiency of, etc. accepted as aforesaid by the marshal and, if the exceptions be sustained, the court shall rule the marshal to file a new undertaking, with sufficient surety, by a day to be named, in default of which he shall be liable to the plaintiff, on his official bond, for any loss sustained by the plaintiff through such default.
If the property attached be delivered to the defendant upon his executing an undertaking as aforesaid, and judgment in the action shall 1262be rendered in favor of the plaintiff, it shall be a joint judgment against both the defendant and his surety or sureties in said under-taking for the appraised value of the property. Sec. 456. Levy on credits in hands of garnishee, etc.The attachment shall be levied on credits of the defendant, in the hands of a garnishee, by serving the latter with a copy of the writ of attachment and of the interrogatories accompanying the same, and a notice that any property or credits of the defendant in his hands are seized by virtue of the attachment, besides the notice required by section four hundred and forty-six aforesaid: and the undivided interest of the defendant in a partnership business shall be levied on by a similar service on the defendant’s partner or partners.
Sec. 457. —on debts owing to defendant on judgment, etc.The attachment may be levied upon debts owing by any person to the defendant upon judgment or decree by a similar service upon such party as in the preceding section directed; hut execution may issue for the enforcement of such judgment or decree, notwithstanding the attachment, provided that the money collected upon the same be required to be paid into court to abide the event of the proceedings in attachment and applied as the court may direct. —on property in hands of marshal, etc.It may also be levied upon money or property of the defendant in the hands of the marshal or coroner, and shall bind the same from the time of service, and shall be a legal excuse to the officer for not paying or delivering the same, as he would otherwise be bound to do.
Sec. 458. Sale of property.—The court may make all orders necessary for the preservation of the property attached during the pendency of the suit; and if the property be perishable, or for other reasons a sale of the same shall appear expedient, the court may order that the same be sold and its proceeds paid into court and held subject to its order on the final decision of the case. Receiver.And if it shall seem expedient, the court may appoint a receiver to take possession of the property, who shall give bond for the due performance of his duties, and under the direction of the court, shall have the same powers and perform the same duties as a receiver appointed according to the practice in equity.
Sec. 459. Pleas by garnishee.Pleas by garnishee.—A garnishee in any attachment may plead any plea or pleas which the defendant might or could plead if he had appeared to the suit. Sec. 460. Who may defend.Who may defend.—Any defendant, any garnishee, any party to a forthcoming undertaking, or the officer who might be adjudged liable to the plaintiff by reason of such undertaking being adjudged insufficient, or any stranger to the suit who may make claim, as hereinafter provided, to the property attached, may plead to the attachment; and such pleas shall be considered as raising an issue with-out replication, and any issue of fact thereby made may be tried by the court or by a jury impaneled for the purpose, if either party desires it.
Sec. 461. Traverse of answers of garnishee.Traverse of answers of garnishee.—If any garnishee shall answer to interrogatories that he has no property or credits of the defendant, or less than the amount of the plaintiff’s claim, the plaintiff may traverse such answer as to the existence or amount of such property or credits, and the issue thereby made may be tried as provided in the preceding section ; and in all such eases where judgment shall be entered for the garnishee the plaintiff shall be adjudged to pay to the garnishee, in addition to the taxed costs, a reasonable counsel fee.
And if such issue be found for the plaintiff, judgment shall be rendered as if possession of the property or credits had been confessed by the garnishee. Sec. 462. Claimants.Claimants.—Any person may file his petition in the cause, under oath, at any time before the final disposition of the property attached or its proceeds, except where it is real estate, setting forth a claim thereto or an interest in or lien upon the same, acquired before 1263 the levy of the attachment; and the court, without other pleading, shall inquire into the claim, and. if either party shall request it impanel a jury for the purpose, who shall be sworn to try the question involved as an issue between the claimant as plaintiff, and the parties to the suit as defendants, and the court may make all such orders as may be necessary to protect any rights of the petitioner.
Sec. 463. Judgments.—If the defendant in the action has beenJudgments. served with process, final judgment shall not be rendered against the garnishee until the action against the defendant is determined. If in such action judgment is rendered for the defendant, the garnishee shall be discharged and shall recover his costs, and the property attached or its proceeds shall be restored to the garnishee or to the defendant, as the case may require. Sec. 464. If in such action judgment is rendered in favor of theWhere plaintiff entitled to judgment of condemnation. plaintiff against the defendant, and it shall appear that the plaintiff is entitled to a judgment of condemnation of the property attached, the court shall proceed to enter such judgment in the attachment as in the following sections directed.
Sec. 465. If the action be to replevy specific personal property—action to replevy specific personal property, etc. and the same has not been replevied, other property may be attached in said action to recover damages and costs, and if the same be adjudged, the proceedings shall be the same as herein provided in other cases of money claims. Sec. 466. If, in any form of action, specific property has been—where specific property has been attached and remains under the control of court, etc. attached and remains under the control of court, judgment of condemnation of the same shall be entered, and so much thereof as may be necessary to satisfy the demand of the plaintiff shall be sold under fieri facias: or if the said property shall have been sold under interlocutory order of the court, the proceeds, or so much thereof as may be necessary. shall be applied to the plaintiff’s claim by order of the court.
If the property attached be an undivided interest in a partnership—where property attached be an undivided interest in a partnership business. business, judgment of condemnation thereof shall be entered and the same shall be sold in the same manner as last aforesaid. Sec. 467. If a garnishee shall have admitted credits in his hands, in—admitted credits in hands of garnishee, etc. answer to interrogatories served upon him, or the same shall have been found upon an issue made as aforesaid, judgment shall be entered against him for the amount of credits admitted or found as aforesaid, not exceeding the plaintiff’s claim, less a reasonable attorney’s fee to be fixed by the court, and costs, and execution had thereon: but it said credits shall not be immediately due and payable, execution shall be stayed until the same shall become due: and if the garnishee shall have failed to answer the interrogatories served on him or to appear and show cause why a judgment of condemnation should not be entered, judgment shall be entered against him for the whole amount of the plaintiff’s claim, and costs, and execution had thereon.
Sec. 468. If the property attached has been delivered to or retainedProperty retained, etc., by garnishee, judgment on executing bond. etc. by a garnishee, upon his executing an undertaking as provided in section four hundred and fifty-four, judgment of condemnation of said property shall be rendered, as provided in section four hundred and sixty-six, and judgment shall also be entered that the plaintiff recover from the garnishee and his surety or sureties the value of said property, not exceeding the plaintiff’s claim, said judgment to be entered satisfied if said property be forthcoming and delivered to the marshal, undiminished in value, within ten days after said judgment; otherwise, execution thereof to be had against said garnishee and his surety or sureties; and if said properly shall be so delivered to the marshal the same shall be sold by him under fieri facias to satisfy said judgment of condemnation.
Sec. 469. Judgment to protect garnishee.—Any judgment ofJudgment to protect garnishee. condemnation against a garnishee, and execution thereon, or payment 1264by such garnishee in obedience to the judgment or any order of the court, shall be a sufficient plea in bar in any action brought against him by the defendant in the suit in which the attachment is issued, for or concerning the property or credits so condemned. Sec. 470. Fraudulent assignments. Fraudulent assignments.— If the ground upon which an attachment is applied for be that the defendant has assigned, conveyed, or disposed of his property with intent to hinder, delay, or —attachment of property assigned in hands of garnishee, etc.defraud his creditors, the attachment may be levied upon the property alleged to be so assigned or conveyed in the hands of the alleged fraudulent assignee or transferee, as a garnishee.
Sec. 471. —rights of said garnishee. etc. The said garnishee may have the same benefit of section four hundred and fiftvone aforesaid as the defendant in the action; and if the court shall be of opinion, upon the hearing of the affidavits filed, that the attachment ought not to have issued or to have been levied on the property claimed by said garnishee, the said attachment may be quashed as to the said garnishee and the said levy set aside. Sec. 472. —pleas of, etc. If the said levy shall not be so set aside, the said garnishee may plead that he was a bona tide purchaser from the defendant for value without notice of any fraud on the part of said defendant, and such plea shall be held to make an issue, without any further pleading in reply thereto: and said issue may be tried as directed in section four hundred and sixty aforesaid.
Sec. 473. —judgment for. If said issue is found in favor of the said garnishee, judgment shall be rendered in his favor for his costs and a reasonable counsel fee. If said issue be found against such garnishee, but judgment in the action is rendered in favor of the defendant, the said attachment shall be dissolved, and said garnishee shall recover his costs. Sec. 474. —against. If the said issue is found against said garnishee and judgment in the action is rendered in favor of the plaintiff against the defendant, or the defendant, not being found, has failed to appear in obedience to the order of publication against him. if it shall appear upon the verdict of a jury that the claim of the plaintiff against said defendant is well founded, a judgment of condemnation of the property attached shall be rendered, as directed in section four hundred and sixty-four aforesaid.
Sec. 475. Trial of issues. Trial of issues.— All issues raised by pleas to the attachment, in any ease, may be tried at the same time as the issues raised by the pleadings in the action, or separately, as the convenience of the court may require. Sec. 476. Act not to prevent bill of equity. This Act not to prevent bill in equity.— Nothing herein contained shall be construed as depriving a judgment creditor of the right to tile a bill in equity to enforce his judgment against an equitable interest in real or personal estate of the judgment defendant, or to have a conveyance of the real or personal estate by said defend- ant. made with intent to hinder, delay, and defraud his creditors, set aside.
Sec. 477. Attachment dockets. Attachment dockets.— The clerk of said court shall keep an attachment docket, in which, as well as in the regular docket, shall be entered all attachments levied upon real estate, with a description, in brief, of the real estate so levied upon; and said attachments shall be indexed in the names of the defendant and of any person in whose possession said property may have been levied upon. Chapter Fourteen. BONDS AND UNDERTAKINGS. Sec. 478. Bonds.
Bonds.— A bond, when required or referred to, in the provisions of this code, shall be understood to signify an obligation in a certain sum or penalty, subject to a condition, on breach of which it is to become absolute and to be enforceable by action. 1265 Sec. 479. Undertakings.— An undertaking shall be understood to Undertakings.signify an agreement entered into by a party to a suit or proceeding, with or without sureties, upon which a judgment or decree may be rendered in the same suit or proceeding against said party and his sureties, if any, the said party and sureties submitting themselves to the jurisdiction of the court for that purpose.
Sec. 480. Actions on bonds.— A bond in a penal sum, containing Actions on bonds.a condition that it shall be void on the payment of a certain sum of money, or the performance of an act, or of certain duties, shall have the same effect for the purpose of maintaining an action upon it as if it contained a covenant to pay the money or perform the. act or the duties specified in the condition. But the damages to be recovered for a breach, or successive breaches, of the condition, as against the sure-ties therein, shall not exceed the penalty of the bond.
Sec. 481. Bond to United States by officers.— Whenever a bond Bond to United States by officers.is executed to the United States by any fiduciary or public officer, conditioned for the performance of certain duties, in the performance of which private persons are interested, any such persons, aggrieved by a breach of such condition, shall be entitled to maintain an action thereon in his own name against the obligor and his sureties to recover damages for the injury suffered by him in consequence of such breach; and it shall be the duty of the custodian of such bond to furnish a certified copy thereof to said party for the purpose aforesaid on payment of the legal fees therefor.
Sec. 482. Bonds of trustees.— If any person appointed by order Bonds of trustees.or decree of the court to the office of trustee or to any other fiduciary office shall give bond, with surety or sureties, for the due performance of his duties, he shall not be allowed to discharge said bond by receipts, releases, or acquittances from himself, as attorney for parties interested, to himself as such trustee or other fiduciary; but the funds or estate for the due application whereof he is responsible shall be considered as remaining in his hands, and said bond shall continue in force, as against both principal and sureties until said funds or estate shall be fully accounted for and paid over or delivered to the parties interested therein, or their attorney, other than said trustee or other fiduciary duly authorized to receive the same.
Chapter Fifteen. CONDEMNATION OF LAND FOR PUBLIC USE.Condemnation of land for public use. Sec. 483. Land for United States and District of Columbia. Land for United States and District of Columbia.— Whenever land in the District is needed for the use of the United States, or by the Commissioners of the District, for sites of schoolhouses, fire or police stations, or for a right of way for sewers, or for any other municipal use authorized by Congress, and the same can not be acquired by purchase from the owners thereof at a price satisfactory to the officers of the Government authorized to negotiate for the same, application may be made to the supreme court of the District by petition in the name of the United States or of said Commissioners, as the case may be, for the condemnation of said land or said right of way and the ascertainment of its value.
Sec. 484. Petition, what to show.— Such petition shall contain a Petition, what to show.particular description of the property selected, with the names of the owners thereof and their residences, so far as the same may be ascertained, together with a plan of the land to be taken. Sec. 485. Citation to owners.— The said court, holding a district Citation to owners.court of the United States, shall thereupon cite all the owners and other persons interested to appear in said court, at a time to be fixed by the court, to answer said petition; and if it shall appear to the court that there are any owners or other persons interested who are 1266under disability, the court shall give public notice of the time at which it will proceed with the matter of condemnation: and at such time, if it shall appear that there are any persons under disability who have appeared or who have not appeared, the court shall appoint a guardian ad litem for each such person, and shall thereupon proceed to appoint three capable and disinterested commissioners to appraise the value of the respective interests of all persons concerned in such lands, under such regulations as to notice and hearing as shall seem meet.
Sec. 486. Condemnation and payment. Condemnation and payment.— Such commissioners shall thereupon, after being duly sworn for the proper performance of their duties, examine the premises and hear the persons in interest, who may appear before them, and return their appraisement of the value of the interests of all persons, respectively, in such land; and when such report, or the verdict of the jury hereinafter provided for, shall be continued by the court, the President of the United States, in cases of condemnation for the use of the United States, shall, if he thinks the public interest requires it. cause payment to be made out of the money appropriated by Congress therefor to the respective persons entitled, according to the judgment of the court: and in ease any of such persons are under disability or can not be found, or neglect to receive the payment, the money to be paid to any of them shall be deposited in the Treasury to their credit, unless there be some person lawfully authorized to receive the same under the direction of the court; and when such payments are so made, or the amounts belonging to persons to whom payment shall not be made are so deposited, the said lands shall be deemed to be condemned and taken by the United States for the public use.
Sec. 487. Jury. Jury.— If any of the parties interested, or the guardian ad litem appointed for any such person who may be under a disability, shall be dissatisfied with the appraisement of the commissioners, the marshal shall be directed to summon a jury of seven disinterested men. not related to anyone interested, to meet and view the premises, giving the parties interested at least six days’ notice of the time and place of meeting. Sec. 488. —oath of. Benefits.— The marshal shall summon the jury and administer an oath to them that they will, without favor or partiality to any-one, to the best of their judgment, decide what damage each owner will sustain by reason of the taking of his land for any of the objects Benefits.aforesaid.
In making their decision, the jury shall take into consideration, whenever a part only is taken, the benefit to the remainder of the tract, and shall give their verdict accordingly. Sec. 489. Verdict. The jury having been upon the premises and. after hearing the parties, having assessed the damages, shall make out a written verdict, to be signed by them, or a majority of them and attested by the marshal, who shall return the same to the court, where it shall be recorded. The verdict of the jury may be excepted to by any party interested, and may be set aside by the court for good reasons, and a new jury directed to be summoned.
Sec. 490. Payment. If the finding of the commissioners to appraise should not be objected to by the parties interested, and, in cases of condemnation for the use of the District, the Commissioners of the District are satisfied therewith, or if the verdict of the jury is confirmed by the court and is satisfactory to the Commissioners of the District the said Commissioners shall pay the amount awarded by the jury out of the appropriation made therefor, or deposit the same in the same manner as directed in section four hundred and eighty-six, aforesaid, and there-upon the land condemned shall become and be the property of the District.
Sec. 491. Optional with Commissioners to accept verdict, etc. It shall be optional with the Commissioners to abide by the verdict of the jury and occupy the land appraised by them, or abandon the same, without being liable to damage therefor. 1267 Chapter Sixteen CONVEYANCING.Conveyancing. Subchapter One. ABSOLUTE DEEDS OF REAL PROPERTY.Absolute deeds of real property. Sec. 492. Estates.— No estate of inheritance, or for life, or for a Estates.longer term than one year, in any real property, corporeal or incorporeal, in the.
District of Columbia, or any declaration or limitation of uses in the same, for any of the estates mentioned, shall be created or take effect, except by deed signed and sealed by the grantor, lessor, or declarant, and acknowledged in the manner herein provided. Sec. 493. Acknowledgment.— Such acknowledgment may be made Acknowledgment.in the District of Columbia before any judge of any of the courts of said District, the clerk of the supreme court of the District, or any justice of the peace or notary public, or the recorder of deeds of said District, and the certificate of the officer taking the acknowledgment shall be to the following effect:
I, A B, a justice of the peace (or other officer authorized) in and for the District of Columbia, do hereby certify that C D, party to a certain deed bearing date on the _ _ _ _ day of _ _ _ _ _ _ _ _ , and hereto annexed, personally appeared before me in said District, the said C D being personally well known to me as (or proved by the oath of credible witnesses to be) the person who executed the said deed, and acknowledged the same to be his act and deed. Given under my hand and seal this _ _ _ _ day of _ _ _ _ _ _ _ _ _ _ _ _ _ A B. [Seal.] Sec. 494.
Release of dower.— If the wife of the party executing Release of dower.said deed, being not less than eighteen years of age, shall desire to release her right of dower in the property conveyed, she shall unite in the deed with her husband and sign, seal, and acknowledge the same in the same manner as her husband, and the officer taking her acknowledgment shall add to the above form of certificate a further certificate to the following effect, namely: And at the same time personally appeared before me, in said District, E F, the wife of said C D, personally well known to me (or proved by the oath of credible witnesses) to be such, and acknowledged the same to be her act and deed.
Such wife, however, may release, her right of dower by her separate deed, when the releasee claims or derives title from, by. through, or under her husband. Sec. 495. Acknowledgment out of District.— When any deed or Acknowledgment out of District but within the United States.contract under seal relating to land is to be acknowledged out of the District of Columbia, but within the United States, the acknowledgment may be made before any judge of a court of record and of law, or any chancellor of a State, any judge or justice of the Supreme, circuit, or Territorial courts of the United States, any justice of the peace or notary public: *Provided*, That the certificate of acknowledgment *Provisos.*Certificate of acknowledgment.aforesaid, made by any officer of a State or Territory, shall be accompanied by a certificate of the register, clerk, or other public officer haying official cognizance of the fact that the officer taking said acknowledgment was in fact the officer he professed to be: *Provided, further*, —what sufficient certificate.That a certificate by any such register, clerk, or other public officer, in the form prescribed by the laws of the State or Territory in which such certificate is made or customarily used therein, shall be a sufficient certificate for the purposes of this section. 1268 Sec. 496.
Acknowledgment in a foreign country.[R. S., sec. 1674, p. 293](/us/rs/s1674/p293). Deeds made in a foreign country may be acknowledged before any judge, or notary public, or before any secretary of legation or vice-consul-general of the United States, or consular officer of the United States as such consular officer is described in section sixteen hundred and seventy-four of the Revised Statutes of the United States; and when the acknowledgment is made before any other officer than a secretary of legation or consular officer of the United States the official character of the person taking the acknowledgment shall be certified in the manner prescribed in the last preceding section.
Sec. 497. Deeds of corporations. Deeds of corporations.— The deed of a corporation shall be executed by having the seal of the corporation attached and being signed with the name of the corporation, by its president or chief officer, and shall be acknowledged as the deed of the corporation by an attorney appointed for that purpose, by a power of attorney embodied in the deed or by one separate therefrom, under the corporate seal, to be annexed to and recorded with the deed. Sec. 498.
Acknowledgment by attorney. Acknowledgment by attorney.— No deeds of conveyance of either real or personal estate by individuals shall be executed or acknowledged by attorney. Sec. 499. When deeds to take effect. When deeds to take effect.— Any deed conveying real property in the District, or interest therein, or declaring or limiting any use or trust thereof, executed and acknowledged and certified as aforesaid and delivered to the person in whose favor the same is executed, shall be held to take effect and pass the title in the property conveyed to said person from the date of the acknowledgment, provided the same be recorded within three months from said date, except that as to creditors and subsequent bona fide purchasers and mortgagees without notice of said deed, and others interested in said property. it shall only take effect from the time of its delivery to the recorder of deeds to be recorded.
Sec. 500. When two or more deeds of the same property are made to bona tide purchasers for value without notice, the deed or deeds which are first recorded according to law shall be preferred. Sec. 501. Bonds and con-tracts. Bonds and contracts.— Any title bond or other written contract in relation to land may be acknowledged, certified, and recorded in the same manner as deeds for the conveyance of land, and the record thereof shall be notice to ail creditors and subsequent purchasers of the existence of such bond or contract.
Sec. 502. Interpretation. Interpretation.— No words of inheritance shall be necessary in a deed or will to create a fee simple estate: but every conveyance or devise of real estate shall be construed and held to pass a fee simple estate or other entire estate of the grantor or testator, unless a contrary intention shall appear by express terms or be necessarily implied therein. Sec. 503. Construction of words, phrases, etc. The word “grant,” the phrase “bargain and sell.” or any other words purporting to transfer the whole estate shall be construed to pass the whole estate and interest of the grantor in the property described, unless there be limitations or reservations showing a different intent.
Sec. 504. In any deed or will of real or personal estate in the District of Columbia, hereafter executed, the words “die without issue,” or the words “die without leaving issue,” or the words “have no issue,” or other words which may import either a want or failure of issue of any person in his lifetime, or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of such per-son, and not an indefinite failure of his issue, unless a contrary intention shall appear in the instrument.
Sec. 505. When, in a deed conveying real estate, the words “the said _ _ _ _ _ _ _ _ covenants” are used, such words shall have the same effect as if the covenant was expressed to be by the covenantor, for 1269himself, his heirs, devisees, and personal representatives, and shall be Construction of word, phrases, etc.— Continued.deemed to be with the grantee or lessee, his heirs, devisees, personal representatives, and assigns. Sec. 506. A covenant by the grantor, in a deed conveying real estate, —covenants.“that he will warrant generally the property hereby conveyed.” or a grant of real estate in which the granting words are followed by the words “with general warranty,” shall have the same effect as if the grantor had covenanted that he, his heirs, devisees, and personal representatives will warrant and defend the said property unto the grantee, his. heirs, devisees, personal representatives, and assigns against the claims and demands of all persons whomsoever.
Sec. 507. A covenant by a grantor, in a deed conveying real estate, “that he will warrant specially the property hereby conveyed,” or a grant of real estate in which the granting words are followed by the words “with special warranty,” shall have the same effect as if the grantor had covenanted that he, his heirs, devisees, and personal representatives will forever warrant and defend the said property unto the grantee, his heirs, devisees, personal representatives, and assigns against the claims and demands of the grantor and all persons claiming or to claim by, through, or under him.
Sec. 508. A covenant by the grantor, in a deed of land, “that the said grantee shall quietly enjoy said land,” shall have the same effect as if he had covenanted that the said grantee, his heirs and assigns, shall, at any and all times hereafter, peaceably and quietly enter upon, have, hold, and enjoy the land conveyed by the deed or intended to be so conveyed, with all the rights, privileges, and appurtenances thereunto belonging, and to receive the rents and profits thereof, to and for his and their use and benefit, without any eviction, interruption, suit, claim, or demand whatsoever by the said grantor, his heirs or assigns, or any other person or persons whatever.
Sec. 509. A covenant by a grantor, in a deed of land, “that he has done no act to incumber said land,” shall be construed to have the same effect as if he had covenanted that he had not done or executed or knowingly suffered any act, deed, or thing whereby the land and premises conveyed, or intended so to be, or any part thereof, are or will be charged, affected, or incumbered in title, estate, or otherwise. Sec. 510. A covenant by a grantor, in a deed of land, “that he will execute such further assurances of said land as may be requisite,” shall have the same effect as if he had covenanted that he, his heirs or devisees, will, at any time, upon any reasonable request, at the charge of the grantee, his heirs or assigns, do, execute, or cause to be done and executed, all such further acts, deeds, and things, for the better, more perfectly and absolutely conveying and assuring the lands and premises conveyed unto the grantee, his heirs and assigns, as intended to be conveyed, as by the grantee, his heirs or assigns, or his or their counsel learned in the law, shall be reasonably devised, advised, or required.
Sec. 511. Implied covenants.— No covenant shall be implied in any Implied covenants..conveyance of real estate, whether such conveyance contains special covenants or not. Sec. 512. What estates may be conveyed by deed.— Any interest What estates may be conveyed by deed.in or claim to real estate, whether entitling to present or future possession and enjoyment, and whether vested or contingent, may be disposed of by deed or will, and any estate which would be good at common law, as an executory devise, may be created by deed.
Sec. 513. Conveyance of land held adversely.— Any person Conveyance of land held adversely.claiming title to land may convey his interest in the same, notwithstanding there may be an adverse possession thereof. Sec. 514. Absence of acknowledgment.— No deed or conveyance Absence of acknowledgment.of squares or lots of public land in the city of Washington, made in pursuance of law prior to March third, eighteen hundred and sixty-1270three, by the commissioner of public buildings or any other authorized officer, shall be deemed invalid in law for the want of an acknowledgment by the commissioner or other authorized officer before such judicial officers, as deeds of real property made between individuals are required by law to be acknowledged.
Sec. 515. Deeds recorded prior to code, defectively acknowledged, declared valid. Defective acknowledgments.— All deeds and acknowledgments recorded in the land records of the District prior to the adoption of this code of any of the following designated classes shall, in favor of parties in actual possession, claiming under and through such deeds, be deemed and held and are declared to be of the same effect an I validity to pass the fee simple or other estate intended to be conveyed, and bar dower in the real estate therein mentioned, as if such deeds had in all respects been executed, acknowledged, proved, certified, and recorded according to law, namely:
First. —classes designated. All deeds which have been executed and acknowledged by married women, their husbands having signed and sealed the same, for conveying any real estate, or interest therein, situated in the District; Second. All acknowledgments of deeds 'which have been made by married women, whether they have executed the deed or not, for the purpose of releasing their claims to dower in the lands described therein, situated in the District, in which acknowledgments the form prescribed by law has not been followed;
Third. All deeds which have been executed and acknowledged by an attorney in fact duly appointed for conveying real estate situated in the District; Fourth. All deeds executed and acknowledged, or only acknowledged by such attorney in fact, for conveying real estate situated in the District, as to which the acknowledgment was made before officers different from those before whom proof of the power of attorney was made, and as to which the power of attorney was proved before only one justice of the peace;
Fifth. All deeds for the purpose of conveying land situated in the District, acknowledged out of the District, before a judge of a United States court, or before two aidermen of a city, or the chief magistrate of a city, or before a notary public; Sixth. All deeds for the purpose of conveying land situated in the District, acknowledged by an attorney in fact, duly appointed, or by an officer of a corporation, duly authorized, who has acknowledged the same to be his act and deed, instead of the act and deed of the grantor or of the corporation; and Seventh.
All deeds for the purpose of conveying land situated in the District to which there is not annexed a legal certificate as to the official character of the officer or officers taking the acknowledgment. Sec. 516. Acknowledgments by married women. Acknowledgments by married women.— In all cases mentioned in the preceding section the certificate of acknowledgment by a married woman must show that the acknowledgment was made “apart” or “privily” from her husband, or use some other term importing that her acknowledgment was made out of his presence, and also that she acknowledged or declared that she willingly executed or that she willingly acknowledged the deed, or that the same was her voluntary act, or to that effect.
Sec. 517. Dower. Dower.— Any acknowledgment made by a married woman of any deed executed by her husband, and recorded as mentioned in section five hundred and fifteen, shall be good and effectual to bar all claim on her part to dower in the lands described therein, situated in the District, although she shall not have executed the same. Sec. 518. Power of attorney by married woman. Power of attorney by married woman.— hen the power of attorney mentioned in section five hundred and fifteen is executed by a married woman, the same shall be effectual and sufficient if there is such an acknowledgment of the same as would be sufficient, 1271under the provisions of this chapter, to pass her estate and interest therein were she a party executing the deed of conveyance.
Sec. 519. Record of deed as evidence.— The record and copy Record of deed as evidence.thereof of any deed recorded, as mentioned in section five hundred and fifteen, shall be evidence thereof, in the same manner and shall have the same effect as if such deed had been originally executed, acknowledged. and recorded according to law. Sec. 520. The acts of Congress approved May thirty-first, eighteen Acknowledgments in compliance with
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