MUNICIPAL CORPORATIONS. See Negligence.

1. The District of Columbia, notwithstanding its non-representative
form of government, is liable to an individual for any accident
resulting from its failure to keep the streets and highways in such
a condition as will render them safe for public use (following
Barnes' case, 91 U. S., 540). But this liability is no greater and
no less than that of any municipal corporation which receives its
grant of power from the sovereign. Clark v. The District, 79.

2. The District is not required to keep the streets clear of the millions
of tons of snow falling upon them during the winter; such an un-
dertaking would be incapable of performance, but if it have
actual notice of the dangerous condition of any particular place,
from the accumulation of snow and ice, and neglect to remedy it,
it becomes liable for consequent injuries. Id.

3. It had been alternately snowing and raining for several days prior
to the day when the plaintiff slipped and fell by reason of the
accumulated snow and ice upon the street crossing. The streets,
in consequence of the protracted storm, were all in a perilous
condition for travel, but there was no proof that the District had
any more notice of the unsafe condition of the street at the point
where the accident occurred than at any other point; or any other
notice than such as arises from the well known result to the
streets everywhere of a severe and protracted snow storm.
Held, That this was not such notice as would render the District lia-
ble. Id.

4. A corporate seal is not necessary to the validity of the contract of
a municipal corporation. The District v. Johnston, 120.

5. By an act of Congress (May 15, 1820), the corporation of Washing-
ton was given express power to "erect, repair and regulate pub-
lic 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 de-
fendants, that if the latter would erect a wharf at their own ex-
pense, 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 dol-
lars, 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. ld.
6. 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. Id.

MUNICIPAL CORPORATIONS (continued).

7. A municipality is not liable for damage to private property, occa-
sioned by the accumulation of water within a square left below
grade in making a public improvement. Herring v. District, 572.
8. In the process of public improvements, a municipality so raised the
grade of certain streets as to leave the enclosed square below the
new grade thus established, and turned a natural stream into a
sewer in such a way as to leave the old channel exposed within
the limits of the square. The owner of property within the
square did not conform his premises to the new grade.
Held, That the municipality was not liable for damage to such prop-
erty occasioned by the accumulation of water within the square,
notwithstanding one of the streets crossed the old channel, and
the raising the grade of that street destroyed a former culvert
through which the stream had flowed. Id.

NEGLIGENCE. See Municipal Corporations, 1, 2, 3.

The District authorities had covered a well located on the public high-
way in which was placed a pump for the use of the public,
with a wooden platform, and upon this was laid a brick pave-
ment even with the level of the sidewalk. Plaintiff had fre-
quently used the pump, and there was nothing to lead one to sus-
pect any danger or defect about it. On the day in question, while
in the act of using the pump, the pavement over the platform
suddenly gave way, precipitating plaintiff to the bottom of the
well. It was in evidence that the District authorities had not for
nine years made any examination or repair of the platform. By
the court below it was held that express notice must be brought
home to the District of the defect in the covering of the well; but
it was-

Held, on appeal, that the District was bound to know that the plat-
form was of perishable material, and to watch over it and keep it
in repair; that having left it without examination for nine years,
until it became a man trap, with the assurance to the public of
security, there was such delinquency as rendered the District lia-
ble in damages. Sherwood v. The District, 276.

NEW TRIAL, MOTION FOR. See Pleading and Practice, 13.
NUISANCES. See Board of Health, 12, and Pleading and Practice, 14.

ORPHANS' COURT. See Executors and Administrators.

PATENT LAW.

1. The decision of the Commissioner of Patents on the right of an ap-
plicant to receive a patent, is an act of executive discretion, and
cannot be interfered with by mandamus. U. S., ex rel. Hoe, v.

Butterworth, 229.

2. So, too, after the decision has been made and communicated to the
applicant, and at any time before the issue of the patent for the

PATENT LAW (continued).

signature of the Secretary of the Interior, it is within the Commis-
sioner's discretion to reconsider his decision and to make a con-
trary one.

Id.

3. But if he does not, then his executive discretion being exhausted in
deciding that the applicant is entitled to a patent, there remains
but the ministerial duty to issue it; and to compel the perform-
ance of this act, in case of refusal, mandamus is the proper
remedy. Id.

4. An appeal from the decision of the Commissioner of Patents upon
the right of an applicant to receive a patent, lies directly from him
to this court in General Term, and not to the Secretary of the
Interior; the latter has not appellate or revisory power over the
decision of the Commissioner upon that question. Id.

5. In legal effect the action of an applicant or his attorney is the same.
In re Hatchman, 288.

6. Where one of the claims in an original application was rejected upon
reference to certain patents, and the applicant, by his attorney,
orders the same to be erased, and thus obtains and accepts a patent
for the residue of his claims, there has been no inadvertence, acci-
dent or mistake within the meaning of the patent law, and the
patentee is not entitled to a reissue covering the claim before
erased. ld.

7. The purchase of a product does not constitute the purchaser an
infringer of the patent for the machine or process by which it is
produced. Brown v. The District, 502.

8. The advantages claimed under patent No. 94,062, issued August 24,
1869, for the paving block therein described, are purely fanciful,
and the block has no patentable novelty. Id.

9. Patent No. 101,590, also for paving block, is likewise void under
either of the two constructions which the claim is susceptible of.
Construed as a claim for a new arrangement of paving blocks of a
known shape without reference to their material, it was antici-
pated by the English patent granted Lindsay in June, 1825. Con-
strued as a claim for the application of a known arrangement to a
new material, it would not be a patentable novelty. Id.
PLEADING AND PRACTICE. See Appeals; Autrefois Acquit; Bill
of Exceptions; Patent Law, 4; Referee; Rehearing; Seventy-Third
Rule; Slander.

1. A justice having no previous connection with a case, except to grant,
at Special Term, a preliminary injunction, on ex parte affidavits, is
not thereby disqualified to sit upon the final hearing of the case in
General Term. Walter v. Ward, 65.

2. A suit may be maintained in the name of the United States, for the
use of several legatees, against the principal and sureties on an
executor's bond; it is not necessary that a separate suit should be
brought to the use of each party interested. U. S., use of Alex-
ander, v. Ritchie, 162.

PLEADING AND PRACTICE (continued).

3. In a suit upon a bond, where the bond is filed as a public record, it
is unnecessary to make profert of it in the declaration. Id.
4. The neglect to make profert is a matter of form and not of sub-
stance, and cannot be taken advantage of on general demurrer. Id.
5. This court will not listen to any mere matters of form on demurrer ;
they were at common law subject to special demurrer, and by the
rules of this court all special demurrers are virtually abolished.
Id.

6. A declaration which states the facts necessary to be stated to make
a case, is not demurrable because it contains matters of evidence;
the latter is merely surplusage. Id.

7. A fi. fa. cannot issue on a judgment of this court after twelve years
have elapsed since the last proceeding taken to enforce the judg-
ment. Thompson v. Beveridge, 170.

8. T., who was tenant pur autre vie, leased to G.; pending the lease,
cestui que vie dies; T. continues collecting the rent, receipting
therefor as agent for the heirs."

Held, That T. could not maintain an action in his own name for rent
accruing after the death of cestui que vie. Tyler v. Gilmore, 189.
9. Where the declaration consists of the common counts, with a bill of
particulars annexed, no recovery can be had for services not
included among the items of charges contained in the bill of par-
ticulars. The latter defines the application of the common counts,
and is a part of the pleading under our system. It apprises the
defendant what it is the plaintiff expects to recover on, and if the
bill contains no such item, no recovery can be had, even if the
services were in fact rendered. Fague v. Corcoran, 199.

10. But the court may, on a new trial being granted, allow an amend-
ment of the bill of particulars, so as to include such a charge. Id.
11. It is in the discretion of the court to refuse all instructions prayed

for by either party, and to state the law in its own language.
Carpenter v. Railroad Co., 225.

12. On exceptions for error in a part of the charge to the jury, the
court will look at the whole charge, and if it see that in the very
next paragraph an apparent error is corrected, the exception will
not be sustained.

Id.

13. The German Evangelical Concordia Church were dispossessed of
property under a decree and writ of assistance of this court. An
appeal was taken to the Supreme Court of the United States, where
the decree was reversed. The mandate directed to this court
described the appellants as the German Lutheran Evangelical
Concordia Church, and under this title they applied to this court
for a writ of restitution to restore them the possession.
Held, That the record showed no such party to the suit, and that the
writ must be refused; but it seems that if the petitioner had shown
itself to be the successor to the German Evangelical Concordia

PLEADING AND PRACTICE (continued).

Church, the writ would have issued.
haus, 261.

Concordia Church v. Ebbing-

14. Where a party makes a motion for a new trial within four days
after the rendition of the verdict, he is entitled to have his motion
passed upon by the court, and if, in the meantime, judgment has
been entered, it remains subject to be set aside if a new trial be
granted. So, too, with the motion in arrest of judgment if made
in proper time. The fact that no suspending undertaking or bond
is given, cannot affect the right to have those motions passed upon
by the court. The giving of this suspending bond is not a con-
dition precedent to the motion. The party takes only the risk of
an execution being issued and a levy and sale made in the mean-
time. But if the motion for a new trial and the motion in arrest
of judgment have been heard, and pending these motions, no levy
has been made, then, if the party appeal and give his appeal bond,
all further proceedings under the execution are stayed. Hetzel v.
Railroad Co., 338.

15. An information charging that the defendant "did then and there
commit, create and maintain a nuisance injurious to health, con-
sisting of crushing, grinding and burning of shells, whereby
noisome stenches and noxious gases arise and are generated,"
charges a nuisance at common law. The District v. The Gas Light
Company, 343.

16. When an inferior court is proceeding beyond or without its juris-
diction, the writ of certiorari is the proper remedy, but not for
mere matters of form and procedure; and it seems that the writ
ought never to issue where there is a right of appeal, unless the
jurisdiction is called in question, or unless some specific reason
is shown why the writ should issue, as that a party has lost his
right of appeal through mistake, or inadvertence or the like. Id.
17. An objection that the information contains the signature of the
prosecuting attorney in printed type, instead of the same being
written, is one which relates merely to a matter of form and pro-
cedure, which is amendable. Id.

POLICE COURT. See Board of Health, 1.

1. Inasmuch as the jurisdiction of the police court to convict an ac-
cused of an offence against the criminal laws of the United States,
without a trial by jury, has been acquiesced in for nearly four-
teen years, this court declines, at this, the first time that the juris-
diction has been formally assailed, to enter upon the examination
of the question, but passes the prisoner on to the Supreme Court
of the United States, if he should think proper to appeal to that tri-
bunal. At the same time, it is intimated that, if the police court
were just entering on its existence, this court would feel bound
to consider the question, and would do so, perhaps, with some
prepossession against the jurisdiction. In re George Fry, 135.