time, that a special statute applicable to a particular case shall govern that, although a later general rule which might have included all cases has been passed. Now, this court has a law of its own as to appeals. By section 772, R. S. D. C., any order pronounced at any special term of this court, may be reviewed here on appeal without reference to the amount involved, if it affects the merits of the case, and is not a mere interlocutory order. It was argued that the case means the case of the bankrupt. But a case of bankruptcy contains a great many cases, that are involved in and become a part of the case of the bankrupt estate, and an order passed in reference to any of them, would be appealable if affecting the merits. The order, however, complained of in this petition seems especially to be an order which affects the merits of the whole matter. It affects the merits of the bankrupt's settlement, and consequently the case of all the plaintiffs. We think it is quite clear that an appeal could have been sustained from this order, since it affects the quantity of assets of the bankrupt, and that, therefore, under the ruling in Smith vs. Mason, we are not at liberty to pass upon it.

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Of course we say nothing about the merits of the order. We are not at liberty to do so upon a motion to dismiss a petition for want of jurisdiction. We only decide that we cannot take supervision in a case which could have been appealed. For these reasons the petition is dismissed.

DISTRICT OF COLUMBIA VS. J. H. & E. K. JOHNSON.

LAW. No. 19,485.

Decided March 3, 1884.

The CHIEF JUSTICE and Justices Cox and JAMES sitting.

1. A corporate seal is not necessary to the validity of the contract of a municipal corporation.

*

2. By an act of Congress (May 15, 1820), the corporation of Washington was given express power to "erect, repair and regulate public wharves, and to regulate the manner of erecting, and the rates of wharfage at private wharves." Under this power, instead of appropriating money to be expended in the construction of a wharf, the corporation contracted with the defendants, that if the latter would erect a wharf at their own expense, and deliver it up at the end of ten years, the corporation would allow them the use of the wharf for ten years, upon the further consideration of the annual payment of a thousand dollars, reserving the right on the part of the corporation to take possession of the wharf upon paying the cost, or a proportional part of the cost, with reference to the time of occupancy by the defendants.

Held, A legitimate exercise of the power to erect wharves.

3. The chief engineer of the army has no power to issue a license to erect wharves in the District of Columbia; whatever power the commissioners of the Federal city, to some of whose powers he succeeded, may have had in that respect, expired when Congress assumed legislative jurisdiction over the District.

4. In an action to recover rent of a wharf, plaintiff, the District of Columbia, offered, without objection or subsequent contradiction on the part of the defendants, evidence showing that defendants had admitted holding the premises in question under a lease from the District, and had paid the District rent therefor under said lease.

Held, That the court was warranted in assuming that the defendants held the property under this lease.

5. Where a party enters into possession under a lease, he is estopped from questioning the right of his lessor.

6. It is error to leave to the jury the question whether anything of value was given to or conferred upon defendants by plaintiffs for payment of which suit is brought, as that leaves to the jury a question of law, i. e., value in its legal sense.

7. Limitations may be pleaded to a parol contract to pay rent, when the contract consists of an ordinance of a municipal corporation, for leasing, assented to by the proposed lessee.

THE CASE is stated in the opinion.

RIDDLE & MILLER for plaintiff.

HINE and BIRNEY for defendants.

Mr. Justice Cox delivered the opinion of the court.

This action was brought to recover rent alleged to be due from the defendants, as tenants, under a lease heretofore executed to them by the corporation of Washington. The circumstances of the letting, as the evidence on the part of the plaintiff tended to show, were as follows:

On the 7th of December, 1867, the corporation of Washington passed an act in the following terms, in part, to wit: "That permission be and hereby is granted to J. H. Johnson and E. K. Johnson to construct at their own expense,. and without any cost to the corporation, by reason of any expenditure or liability that may be incurred by them on account thereof, a wharf on the Potomac, at a point to be selected between 12th street west and 13th street west, and to erect thereon such buildings as may be necessary for the work and storage that may be required by the fishing busi

ness.

Then follows a proviso which it is unnecessary to recite. Section 2d of said act is as follows:

"That in consideration of the making of the wharf and erection of the buildings above contemplated and provided for, and as a full remuneration for the labor and expenses there by incurred, and for the further consideration of the payment to this corporation of an annual rent of one thous and dollars, the same to be paid quarter-yearly, in sums of two hundred and fifty dollars each, the said J. H. and E. K. Johnson, their heirs and assignees, shall have the full and entire use of the said wharf and its appurtenances, from the time of its completion until the expiration of ten years from the date of the passage of this act."

Then another proviso.

Section 3. "That at the expiration of a period of ten years immediately following the passage of this act, or at any previous time, when the occupant or occupants of the said wharf shall refuse or neglect to keep it in good order or repair, or to comply with the police laws of this corporation, the privilege of occupying or using the said wharf, the prop

erty to which it is attached, or any of the appurtenances of the said wharf, as conferred in the second section of this act, shall immediately cease and terminate, and the entire property, of which the conditional use and enjoyment is thereby granted, together with the wharf hereby authorized, and all improvements thereon or connected there with, shall revert to and become the property of this corporation, free from any charge or claim whatsoever on the part of the said J. H. and E. K. Johnson, their heirs or assignees, for or in consideration of the erection of the wharf, or of any rent paid therefor, or of any improvements therein or connected therewith, which they shall have made while enjoying its use and occupancy under the provisions of this act."

The act further provided: "That if the corporation shall, before the expiration of the aforesaid ten years, wish to take into its possession, for public use, the said wharf and appurtenances it shall have the right to do so by paying to the said J. H. and E. K. Johnson, their heirs and assignees, a proportional part of the money expended by them in constructing and improving the said wharf, in proportion to the length of time their occupancy may bear to the whole amount."

An additional section (4) enacts: "That this act shall not take effect until the said J. H. and E. K. Johnson shall have entered into an obligation with the mayor, binding themselves and their heirs and assignees, in the sum of six thousand dollars, to a faithful fulfilment of all the requirements of this act, and that at the end of the term herein named, they will relinquish and convey to this corporation the said wharf and all its appurtenances, free of any cost or charge therefor or on account thereof."

On the 22d of January, 1868, the corporation passed an additional ordinance providing:

"That so soon as the wharf authorized to be erected on the Potomac river, between 12th and 13th streets west, as per act of December 7th, 1867, shall have been completed, and such buildings erected thereon as may be necessary for the work and storage required by the fishing business, the

said wharf shall be, and is hereby established as a fish wharf and dock, and may be used as such by the proprietors thereof, or their assignees, so long as they shall continue to occupy said wharf under, and comply with, the terms and condi tions of the above-mentioned act."

On the 7th day of February following, the defendants, together with Charles B. Church, as security, executed the bond required by the fourth section of the act, which referred to the act, and contained a condition that they "shall faithfully, diligently and honestly execute, perform and fullfil all and singular the requirements of an act passed and approved December the 7th, 1867."

The evidence further tended to prove that the defendants went into, or continued in, possession of the wharf under these acts of the corporation of Washington, and paid rent for a period of one year and three-quarters, amounting to seventeen hundred and fifty dollars, and after that date they refused to pay more rent, and this suit is brought to recover the rent that accrued from the date at which they ceased paying, to the date of this suit.

At the trial, the plaintiff objected to the admission of various matters of evidence offered on the part of the defense, and their exceptions to the admission of that evidence come here upon a motion for a new trial, and we proceed to examine the defenses set up in the case.

It may be proper to notice a preliminary position that was taken in the argument here by the counsel for the defendants. It is said that, upon the very face of the record, it will be observed, that the contract relied upon by the plaintiff is void, and that it is useless to send the case back for a new trial. It is undoubtedly true, that the court will not reverse a judgment below and order a new trial upon the ground of instructions adverse to the plaintiff, if it can be seen from the record that the plaintiff has no case and cannot make one if he has a new trial. How is it in the present case ? It is urged here that the so-called lease is void, because it is not a lease under the seal of the corporation, and several authorities have been cited in support of that position.