« EdellinenJatka »
4 July 1864.
Ibid. 25. Damages.
22 Feb. 1867
109. The power claimed and exercised, as of common right, by every landlord, of seizing, by his own authority, the personal chattels of his tenant for rent arrear, is Right of distress hereby abolished; and instead of it, the landlord shall have a tacit lien upon such of
the tenant's personal chattels, upon the premises, as are subject to execution for debt, to commence with the tenancy, and continue for three months after the rent is due, and until the termination of any action for such rent brought within said three months. And this lien may be enforced :
I. By attachment, to be issued upon affidavit that the rent is due and unpaid; or if not due, that the defendant is about to remove or sell all or some of said chattels : or, II. By judgment against the tenant and execution, to be levied on said chattels or any of them, in whosesoever hands they may be found: or,
III. By action against any purchaser of any of said chattels, with notice of the lien, in which action the plaintiff may have judgment for the value of the chattels purchased by the defendant, but not exceeding the rent arrear and damages.
110. The declaration in replevin shall be in the following or equivalent form: "The plaintiff sues the defendant for (wrongfully taking and detaining), (unjustly detaining) his said plaintiff's goods and chattels, to wit: (describe them) of the value of $—. And the plaintiff claims that the same be taken from the defendant and delivered to him; or if they are eloigned, that he may have judgment of their said value, and all mesne profits and damages, which he estimates at $-, besides costs." And at the time of filing the declaration, the plaintiff, his agent or attorney, shall file an affidavit, sworn to before the clerk, stating
I. That, according to affiant's information and belief, the plaintiff is entitled to recover possession of the chattels proposed to be replevied, being the same described in the declaration :
14 Stat. 404.
22 Feb. 1867 13. 14 Stat. 404. Declaration in replevin.
Ibid. 14. Practice in replevin.
Ibid. 15. Appearance. Ibid. 16. Damages.
appeal by a defendant, he shall, in addition to the bail required in other cases, recognise in a reasonable sum to the complainant, to be fixed by said justice, with sufficient sureties, conditioned to pay all intervening damages to the leased property, resulting from waste, and intervening rent for the premises; and such appeals shall be tried in the same manner, and further proceedings had therein, according to the practice in appeals in other cases in said court.
107. On the trial of said suit in the supreme court of the district, if the jury find for complainant, they shall assess the damages and intervening rent; and in case of default the same shall be assessed by the court.
108. The fees of the justice issuing the process and hearing the issue, and making up the record and certifying the same, and the officer for serving the process, shall be those allowed in civil causes.
II. That the defendant has seized and detains, or detains the same:
III. That said chattels were not subject to such seizure or detention, and were not taken upon any writ of replevin. And he shall, at the same time, enter into an undertaking with surety, approved by the clerk, to abide by and perform the judgment of the court in the premises.
111. If the officer's return of the writ of replevin be, that he has served the defendant with copies of the declaration, notice to plead 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 same, and damages for detention; or he may renew the writ, in order to get possession of the goods and chattels themselves. 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 court may order that the defendant appear to the action by some fixed day; and of this order the plaintiff shall cause notice to be given, by publication in some newspaper of the district, at least three times, the first of which shall be at least twenty days before the day fixed for the defendant's appearance; and if the defendant fail to appear, the court may proceed as in case of default after personal service.
112. If the defendant appear, he may plead not guilty, in which case all special matters of defence may be given in evidence; or he may plead specially.
113. Whether the defendant plead, and the issue thereon joined is found against him; or his plea is held bad on demurrer; or he make default after personal service, or after publication; the plaintiff's damages shall be ascertained by the jury trying the issue, where one is joined, or by a jury of inquest, where there is no issue of fact; and those damages shall be the full value of the goods, if eloigned by the defendant, including, in every case, the loss sustained by the plaintiff by reason of the detention; and judgment shall pass for the plaintiff accordingly.
114. If the issue be found for the defendant, or the plaintiff dismiss or fail to prose- 22 Feb. 1867 cute his suit, the judgment shall be that the goods, if delivered to the plaintiff, be Judgment. returned to the defendant with damages, or on failure, that the defendant recover against the plaintiff and his surety the damages by him sustained, to be assessed by the jury trying the issue; or, where the plaintiff dismisses or fails to prosecute his suit, by the jury of inquest.
115. If the defendant has eloigned the things sued for, the court may instruct the jury, if they find for the plaintiff, to assess such damages as may compel the defendant Damages and to return the things; and the judgment shall be that the plaintiff recover against the judgment where defendant the value of the goods as found, to be discharged by the return of the things, eloigned. with damages for detention, which the jury shall also assess.
XII. GUARDIANS AND COMMITTEES.
ians and cor
116. It shall be lawful for any person, appointed the committee of a lunatic, or the guardian of a minor or lunatic, by the proper authority in any state or territory of the United States, to institute and prosecute to final judgment any suit or action in the Powers of guard courts of the District of Columbia, as he might have done if his authority as such mittees appointguardian or committee had been derived from the proper tribunals of said district; and ed in states and such committee or guardian may in the same manner collect and receive any sum of money due to such lunatic or minor, and may by deed, duly executed, release and convey to any party entitled to the same, whether by purchase or otherwise, any lands or estates situated in the District of Columbia, the property of such lunatic or minor, or to or upon which such lunatic or minor may have a claim or mortgage, in the same manner as he might have done if his authority had been derived from the tribunals of said district: Provided, That such committee or guardian, before making any conveyance of real estate, or release of claim or mortgage thereon, shall file in the orphans' court of said district the official certificate of the judge of the court from which such committee or guardian derived his appointment, that he has given a sufficient bond to account to the minor or lunatic for all sums of money received by virtue of the authority conferred by this act.
Ibid. ? 2.
117. All payments heretofore made within the District of Columbia to the committee or guardian of a lunatic, or the guardian of a minor, duly appointed at the domicil of Former paythe lunatic or minor out of the District of Columbia, in the United States, shall be ments to be good and sufficient: Provided, That said guardian or committee shall file in the orphans' court in said district, the official certificate of the judge of the court from which such committee or guardian derived his appointment, that he has given sufficient bond to account to the minor or lunatic for all payments so made: And provided further, That in all cases the evidence of the appointment and authority of such committee or guardian, shall be first recorded in the office of the orphans' court of said district.
XIII. LIMITED PARTNERSHIP.
14 Stat. 435.
118. Limited partnerships for the transaction of any mercantile, mechanical or 2 March 1867 § 1. manufacturing business within the District of Columbia may be formed by two or more persons, upon the terms, with the rights and powers, and subject to the conditions Limited partnerand liabilities herein prescribed.
8 Mar. 1864 ? 1.
13 Stat. 18.
119. Such partnership may consist of one or more persons, who shall be called general partners, and who shall be jointly and severally responsible as general General and spepartners are by law; and of one or more persons, who shall contribute in actual cash cial partners. payments (a) a specific sum as capital to the common stock, who shall be called special partners, and who shall not be liable for the debts of the partnership beyond the fund so contributed by him or them to the capital; but the number of special partners shall in no partnership exceed six.
120. Persons desirous of forming such partnerships shall make and severally sign a certificate, which shall contain the name or firm under which such partnership is to Certificate to be be conducted; the general nature of the business intended to be transacted; the names signed. of all the general and special partners interested therein, distinguishing which are general and which are special partners, and their respective places of residence; the amount of capital which each special partner shall have contributed to the common stock; the period at which the partnership is to commence, and the period at which it is to terminate.
(a) The capital contributed by the special partner, must be in actual cash; it cannot be a stock of goods. Richardson v. Hogg, 38 Penn. St. 153. It may be made, however, in the checks of third
121. The certificate shall be acknowledged by the several persons signing the same, Ibid. § 4. before a notary public or a judge of any court in the District of Columbia; and such To be acknow acknowledgments shall be made and certified in the same manner as the acknow- corded.
ledged and re
persons, if they represented cash, and the amount actually went into the firm business. Hogg v. Orgill, 34 Penn. St. 344.
2 March 1867. ledgments of deeds of land, and when so acknowledged and certified, shall be filed in the office of the clerk of the supreme court of the District of Columbia, and shall be recorded by him at large in a book kept for that purpose, open to public inspection.
Ibid. 25. 122. At the time of filing the original certificate, with the evidence of the acknowAffidavit of gene- ledgment thereof, as before directed, an affidavit of one or more of the general partners ral partners.
shall also be filed therewith, in the same office, stating that the sums specified in the certificate to have been contributed by each of the special partners to the common stock, have been actually and in good faith paid in cash.(a)
123. No such partnership shall be deemed to have been formed until a certificate shall have been made, acknowledged, filed and recorded, nor until an affidavit shall have been made and filed as above directed; and if any false statement (not the result of accident or mistake) shall be made in such certificate or affidavit, all the persons interested in such partnership shall be liable for all the engagements thereof as general partners.
Ibid. 26. Partnership, when to be formed.
124. The partners shall publish the terms of the partnership,(b) when registered, Terms to be pub- three times a week for at least four weeks, immediately after such registry, in two newspapers to be designated by the clerk of the court in which such registry shall be made, the first publication to appear within one week after the registry, and if such Penalty for omis publication be not made, the partnership shall be deemed general. The affidavits of the publication of such notice by the editors or publishers of the newspapers in which Affidavit of pub- the same shall have been published, shall be filed with the clerk directing the same,
and shall be prima facie evidence of the facts therein contained; the affidavit of any one editor or publisher of each newspaper being sufficient.
125. Every renewal or continuance of such partnership beyond the time originally fixed for its duration, (c) shall be certified, acknowledged and recorded, and an affidavit of a general partner be made and filed, and notice be given in the manner herein required for its original formation; and every such partnership which shall be otherwise renewed and continued shall be deemed a general partnership.(d)
Ibid. 28. Partnerships to be renewed in the same manner.
Every alteration of terms to be a
127. The business of the partnership may be conducted under the name of any one or more of the general partners, and with or without the addition of the word Co. or How suits to be company, as the parties may determine; and in any action or suit to be brought on brought.
126. Every alteration which shall be made in the names of the partners, in the nature of the business, (e) or in the capital or shares thereof, or in any other matter specified in the original certificate, shall be deemed a dissolution of the partnership; and every such partnership which shall in any manner be carried on after any such alteration shall have been made, shall be deemed a general partnership, unless renewed as a special partnership, under the provisions of the last preceding section.
any contract or engagement of the partnership, or to enforce any liability of the same, the general partner or partners whose name or names shall be used in said firm or business shall be the only necessary defendants; and any judgment or decree recovered against said defendant or defendants shall have the same legal effect and operation, and execution thereon shall be enforced and have like effect against the partnership assets, as if the judgment or decree had been recovered against the general partners. 128. If the name of any special partner shall be used in the firm with his privity, he shall be deemed a general partner, and the general partners only shall transact the partners to incur business; (g) and if a special partner shall interfere, contrary to this provision, he shall
Ibid. 11. When special general liability.
be deemed a general partner, but he may, from time to time, examine into the state and progress of the partnership concerns and advise as to their management.
129. No part of the sum which any special partner shall have contributed to the capital stock shall be withdrawn by him, or paid or transferred to him in the shape of
Ibid. § 12.
(a) Where evidence is given to show, prima facie, that the special partner did not pay in the amount specified in the affidavit, such affidavit is not even primâ facie rebutting evidence. Madison Bank v. Gould, 5 Hill 309.
(b) A mistake in the publication stating that $5000 had been put in instead of $2000, renders the special partners general. Smith v. Argall, 6 Hill 479. But where in an action to charge special partners as endorsees, it appeared that the published notice stated that the partnership would commence 16 November 1837, whereas the certificate filed stated 16 October 1837, it was held, that unless the error of the publication was designed to deceive, or the endorsement made before 16 November 1837, the special partners were not liable. Madison Bank v. Gould, 5 Hill 309. So, a mistake in the publication of the names of the part ners-as Argale for Argall-will not vitiate it; whether or not the mistake tended to mislead, should be left to the jury. Bowen v. Argall, 24 Wend. 496.
(c) No formal notice of the dissolution of the firm, at the end of the prescribed period, is necessary. Haggerty v. Taylor, 10 Paige 261.
(d) Where a third person enters the firm as a general partner,
the special partnership is dissolved; and if there be a renewal,
(g) Negotiating the purchase of real estate for the firm will not render the special partner liable as a general one. Madison Bank v. Gould, 5 Hill 309. And he may wind up the affairs of the firm, on a dissolution. Lawson v. Wilmer, 3 Phila. 122. But if it be stipulated in the articles that the son of the special partner shall keep the books and have a general superintendency over the business, at a salary, and that the general partners shall sign no note or check without the son's knowledge and approval, it will render the partnership a general one. Richardson v. Hogg, 38 Penn. St. 153.
dividends, profits or otherwise, (a) during the continuance of the partnership, but any 2 March 1867. partner may annually receive lawful interest on the sum so contributed by him, if the Special partners payment of such interest shall not reduce the original amount of such capital; and if, not to withdraw after payment of such interest, any profits shall remain to be divided, he may also re- May receive ceive his portion of such profits.
130. If it shall appear that, by the payment of interest or profits to any special Ibid. 13. partner, the original capital has been reduced, the partner receiving the same shall be Capital not to be bound to restore the amount necessary to make good his share of capital, with interest, impaired. on being notified thereof.
131. Every sale, assignment or transfer of any property or effects of such partner- Ibid. 14. ship, or of any general partner, made by such partnership or general partner, when Transfers in coninsolvent or in contemplation of insolvency, or after or in contemplation of the in- templation of insolvency of any general partner, with the intent of giving a preference to any creditor void. of such partnership or insolvent partner, and every judgment confessed, lien created or security given by such partnership or general partner, under the like circumstances and with the like intent, shall be void as against the creditors of such partnership.(b)
solvency to be
132. Every special partner who shall violate any of the provisions of the last two sections, or who shall concur in or assent to any such violation by the partnership or by any individual partner, shall be liable as a general partner.
133. In case of the insolvency or bankruptcy of the partnership, no special partner shall, under any circumstances, be allowed to claim as a creditor, until the claims of all the other creditors of the partnership shall be satisfied.(c)
134. All suits respecting the business of the partnership shall be brought by and against the general partners only, except in those cases in which provision is hereinbe- Suits respecting fore made that special partners shall be deemed general partners, and special partner- the firm business. ships general partnerships, when all persons so becoming general partners may be joined with those originally general partners, in any suit brought against such partnerships, and except also the case provided for in section number ten.
135. If, in any case or suit brought against general and special partners, and at the trial of the cause, it shall appear that the special partners or any of them are not liable Judgment. to the writ of the plaintiff, (d) the court may proceed to judgment or decree against the partners who may appear to be liable, in the same manner as if such partners were the only parties defendant to the writ, excepting that the partners who may be deemed not liable shall recover their legal costs against the plaintiffs; and if creditors shall have recovered a judgment or obtained a decree against general partners only, and shall afterwards discover that special partners or some one or more of them have become liable as general partners, he may bring a new suit against such special partner or partners; and in such suit the judgment recovered as aforesaid shall be primâ facie evidence of the amount due by the partnership, and the partnership debt shall not be merged in any judgment or decree recovered or obtained against any partner or partners, as against any other partner or partners.
136. No dissolution of such partnership by act of the partners shall take place previous to the time specified in the certificate of its formation, or in the certificate of its renewal, unless in consequence of the death of one of the partners, or insolvency of the partnership, or of one of the general partners, nor until a notice of such dissolution shall have been filed and recorded in the clerk's office in which the original certificate was recorded, and published once a week for four weeks in two newspapers, to be designated by the clerk of the supreme court of the District of Columbia, which publication may be proved by affidavit and recorded as hereinbefore prescribed for the publication of the certificate for the formation of such partnership.(e)
137. The general partners shall be liable to account to each other and to the special partners, for the management of the concern, both in law and equity.
interest and profits.
(a) The purchase of real estate for the benefit of the firm, the title to which is taken in the names of all the partners, with the knowledge of the special partner, is a virtual withdrawal by him of part of his capital. Madison Bank v. Gould, 5 Hill 309.
(b) An assignment to a trustee for the benefit of creditors, after the firm has become insolvent, or in contemplation of insolvency, is void as against the creditors of the firm, if any preference be given to one creditor or class of creditors over another, or if it provide for the payment of a debt to the special partner rateably to the other creditors of the firm, or before all the general creditors are satisfied in full for their debts. Mills v. Argall, 6 Paige 577. But a voluntary assignee of a limited partnership cannot avoid an assignment made contrary to the provisions of the act; he represents only the assignees, not the
How such partnership may be
138. The proceeding to enforce any lien shall be by bill or petition in equity, and the 22 Feb. 1867 10. decree, besides subjecting the thing upon which the lien has attached to the satisfaction
14 Stat. 404.
creditors. Bullitt v. Chartered Fund, 26 Penn. St. 108.
(c) Dunning's Appeal, 44 Penn. St. 150. A judgment confessed by one partner to another, to secure the amount of the capital stock advanced by such partner, who had agreed to enter into a special partnership, but became a general partner, by reason of non-compliance with the requisitions of the act, is valid against a separate creditor of the partner who confessed the judgment. Purdy v. Lacock, 6 Penn. Št. 490. (d) McKnight v. Ratcliffe, 44 Penn. St. 156. (e) Where a limited partnership is dissolved by agreement of parties, before the period fixed by the original certificate, it continues, as to persons dealing with the firm, without actual notice, until the notice required by the act has been filed, recorded and published. Beers v. Reynolds, 11 N. Y. 97.
22 February 1867. of the plaintiff's demand against the defendant, shall adjudge that the plaintiff recover his demand against the defendant, and that he may have execution thereof as at law.
Proceedings to enforce liens.
XV. MECHANICS' LIENS.
139. Any person who shall hereafter, by virtue of any contract with the owner of any building, or with the agent of such owner, perform any labor upon, or furnish Debts contracted any materials, engine or machinery, for the construction or repairing of such building, repairing a build- shall, upon filing the notice prescribed in section second of this act, have a lien upon
for erecting or
ing to be a lien.
such building and the lot of ground upon which the same is situated, for such labor done, or materials, engine or machinery furnished, when the amount shall exceed twenty dollars.
2 Feb. 1859 1.
11 Stat. 376.
140. Any person wishing to avail himself of this act, whether his claim be due or Notice to be filed not, shall file in the office of the clerk of the circuit court for the District of Columbia,
in the circuit
Such notices to be recorded.
Ibid. § 3. Within what
141. Such lien shall cease to exist at the expiration of one year after the completion of the building or repairs, unless before that time, an action to enforce the same shall period suit to be have been commenced in the said circuit court, by the person having such lien, against
the owner with whom or with whose agent the contract was made; unless such claim be not due at the expiration of one year after such completion, in which case the action shall be commenced within three months after the same shall have become due.
Ibid. 4. Form of complaint.
Ibid. 25. Service of pro
at any time after the commencement of the said building, and within three months after the completion of such building or repairs, a notice of his intention to hold a lien upon the property declared by this act liable to such lien, for the amount due or to become due to him, specifically setting forth the amount claimed; upon his failure to do so, the lien shall be lost. The clerk aforesaid shall file and record such notice in a book provided for that purpose.
Ibid. 7. Precedence.
Ibid. 28. What curtilage
to be embraced in the lien.
144. The proceedings in an action to enforce such lien shall be the same as in other Proceedings and actions, except as otherwise provided in this act; and if judgment be rendered for the plaintiff, he may have execution issued against the premises, and thereupon the marshal shall proceed as upon other executions upon real property.
145. The liens created in pursuance of the provisions of this act shall have precedence over all other liens or encumbrances, which attached upon the premises subsequent to the time at which said notice was given. If, upon a sale of the premises on execution, Apportionment. the proceeds be insufficient to pay all such liens, the court shall order them to be paid Other property in proportion to the amount, respectively, due to each. And any other property of the to be liable. defendant, not exempt from execution, may be sold to satisfy such execution.
146. If the building be on any land lying outside the corporate limits of Washington city and Georgetown, the land upon which the same is erecte together with the space around the same, not exceeding five hundred square feet, clear of the building, shall also be subject to the said lien, if the said land, at the time of the erection or repair of such building, shall have been the property of the person contracting for the erection or repair of the same; if the building be in Washington city or Georgetown, the ground on which the same is erected, and a space of ground equal to the front of the building, and extending to the depth of the lot or lots on which it is erected, shall also be bound by the said lien, subject to the foregoing proviso.
147. All or any number of persons, having liens on the same building, pursuant to the provisions of this act, may join in one action; but their claims shall be stated disditors may join tinctly as in a separate action, and the judgment shall show the amounts to which they
in one action. Actions may be consolidated.
are respectively entitled. If several such actions be brought by different claimants, and be pending at the same time, the court may order them to be consolidated.
142. The complaint of the plaintiff shall contain a brief statement of the contract on which the claim is founded, the amount due thereon, the time when the notice was filed with the clerk, the time when the building was completed, if it be completed, with a description of the premises, and any other material facts; and shall pray that the premises may be sold and the proceeds of the sale applied to the discharge of the lien.
143. The summons shall be served as in other cases, or, instead of service by publication, it may be made by delivering a copy thereof to the person in possession of the premises. If the defendant shall have sold or disposed of the premises before the service of the summons, the court shall direct notice of the proceedings to be served on the purchaser, or his agent for the premises, who may thereupon, if he desire it, be made a party defendant in the action.
148. Whenever any person having a lien, by virtue of the provisions of this act, shall Satisfaction to be have received satisfaction for his claim, and the cost of his proceedings thereon, he shall, upon the request of any person interested, and upon the payment or tender of the costs of entering satisfaction, within six days after such payment or tender, enter satisfaction
entered, in case
of payment, &c.