Shelly v. Wescott,

Hornblower v. G.

v.

McKay v. Bradley

38 L. R., 31; 38 L.

C. App., 473; 11

D. C. App., 373; 8

D. C. App., 298; 2

if by the laws of such State, Territory, or foreign country such action would there be barred and the judgment or decree be incapable of being otherwise enforced there [; and whether so barred or not, no action shall be brought in the District on any such judgment or decree rendered more than ten years before the commencement of such action].

Sec. 1268. ACTION BY THE UNITED STATES.-None of oregoing provisions [aforesaid of this chapter shall apply to any action in which the United States is the real and not merely the nominal plaintiff.

Sec. 1269. ABSENCE OF DEFENDANT.-If, when a cause of action accrues against a person who is a resident of the District of Columbia, he is out of the District or has absconded or concealed himself, the period limited for the bringing of the action shall not begin to run until he comes into the District or while he is so absconded or concealed; and if after the cause of action accrues he abscond or conceal himself, the time of such absence or concealment shall not be computed as any part of the period within which the action must be brought.

Sec. 1270. ACTION STAYED BY INJUNCTION.-Where the bringing of an action has been stayed by an injunction or other order of a court of justice, or by statutory prohibition, the time of such stay shall not be part of the time limited for the commencement of the action.

Catholic U. v. Sec. 1271. NEW PROMISE TO BE IN WRITING, AND SO Waggaman, 32 D. C. App., 307, 318; FORTH.-In actions of debt or upon the case grounded 23 D. C. App. 137 upon any simple contract, no acknowledgment or promIbid., Sec. 1267; ise by words only shall be deemed sufficient evidence of a W. University, 31 new or continuing contract whereby to take any case out Lincoln Bank of the operation of the statute of limitations or to deprive Buck, 30 L. R. 21; any party of the benefit thereof unless such acknowledg26 D.C. App., 449; ment or promise shall be made or contained by or in some R., 154; 12 D. C. writing to be signed by the party chargeable thereby: App., 165; 13. D. Provideu, That nothing herein contained shall alter or D. C. App., 442: 9 take away, or lessen the effect of any payment of any D. C. APP: 449; 3 principal or interest made by any person whatsoever: D. C. App., 395; 2 Provided, also, That in actions to be commenced against D. C. App., 226, 1 two or more joint contractors, or executors, or administrators, if it shall appear at the trial, or otherwise, that the plaintiff, though barred by the statute of limitations as to one or more of such joint contractors, or executors, or administrators, shall nevertheless be entitled to recover against any other or others of the defendants by virtue of a new acknowledgment or promise or otherwise, judgment may be given for the plaintiff as to such defendant or defendants against whom he shall recover. No indorsement or memorandum of any payment hereafter written or made upon any promissory note, bill of exchange, or other writing, by or on behalf of the party to whom such payment shall purport to be made, shall be deemed sufficient proof of such payment so as to take the case out of the operation of the statute of limitations.

D. C. App., 123.

No action shall be maintained whereby to charge any person upon any acknowledgment of, or promise to pay, any debt contracted during infancy made after full age, except for necessaries, unless such acknowledgment or promise shall be made by some writing signed by the party to be charged therewith: Provided, That nothing herein contained shall affect ratification by conduct. (32 Stat., Part I, p. 542.)

Sec. 1272. DIRECTIONS AS TO DEBTS IN A WILL.-No Sec. 94,325. provision in the will of a testator devising his real estate, or any part thereof, subject to the payment of his debts, or charging the same therewith, shall prevent the statute of limitations from operating against such debts, unless it plainly appears to be the testator's intention that it shall not so operate.

24 D. C. App., 487;

CHAPTER XLII.

MANDAMUS.

Secs.68,618,1547; Sec. 1273. How APPLIED FOR.-All applications for Bundy Dar- granting writs of mandamus shall be commenced by petiApp., 459. tion, verified by affidavit of the applicant, setting forth fully the ground of his application.

ling, 25 D. C.

Holzendorf v. Hay, 20 D. C. App., 578.

Sec. 1274. RULE ON DEFENDANT.-Upon the filing of such petition the court may lay a rule requiring the defendant therein named to show cause, within such time as the court may deem proper, why a writ of mandamus should not issue as prayed, a copy of which rule shall be served upon such defendant by a day to be therein limited. Sec. 1275. DEFENDANT'S ANSWER.-The defendant, by App., 346; Dan- the day named in such order, unless for cause shown the cey v. Clark, 38 L. court shall extend the time, shall file an answer to such petition, fully setting forth all the defenses upon which he intends to rely in resisting such application, which shall be verified by his affidavit.

West v. Hitchcock, 19 D. C.

R., 171.

31 D. C. App., 332;19 D. C. App.,

347.

Valley Paper Co. v. Smoot et

Sec. 1276. PLEADINGS AND FURTHER PROCEEDINGS.The petitioner may plead to or traverse all or any of the material averments set forth in said answer, and the defendant shall take issue or demur to said plea or traverse within five days thereafter unless for cause shown the court shall extend the time; and such further proceedings shall thereupon be had in the premises for the determination thereof as if the petitioner had brought an action for a false return.

Sec. 1277. TIME OF TRIAL OF ISSUE.—If issue shall be joined on such proceedings, the same shall stand for trial at as early a day as the court shall appoint.

Sec. 1278. TRIAL.-Such issues shall be tried by a jury if both parties in writing require it, otherwise they shall be heard and determined by the court; and in case a verdict shall be found for the petitioner, or if the court upon hearing determine for the petitioner, or judgment be given for him upon demurrer or for want of a plea, such petitioner shall thereupon recover his damages and costs as he might have done in an action for a false return, to be levied by execution, and a peremptory writ of mandamus shall be granted thereupon without delay against the defendant.

Sec. 1279. JUDGMENT FOR DEFENDANT.-If judgment shall be given for the defendant he shall recover his costs of suit, to be levied in the manner aforesaid.

Sec. 1280. DEFENDANT'S DEFAULT.-If the defendant al., 38 L. R., 171. shall neglect to file his answer to the petition by the day named in the order of the court, after being served with notice thereof, the said court shall thereupon proceed to

hear the said petition ex parte, within five days thereafter, and if it shall be of opinion that the facts and law of the case authorize the granting of a mandamus as prayed, it shall thereupon without delay order a peremptory mandamus to issue, and shall also adjudge to the petitioner his costs of suit.

Sec. 1281. If the court shall, upon such ex parte hear- Ib ing, be of opinion that the facts and law of the case do not authorize the granting of a mandamus, it shall dismiss such petition with costs.

109.

Sec. 1282. APPEAL. In case of an appeal by the de- 1032 D. C. App., fendant the court shall fix the penalty of the appeal bond necessary to be given to stay the execution or enforcement of the order appealed from.

Mackay v. Peters, 22 D.C.App.,

ch. 12, sec. 1.

CHAPTER XLIII.

MARRIAGE.

Sec. 1283. PROHIBITIONS. The following marriages 350; Md. act, 1777, are prohibited in the District of Columbia and shall be absolutely void ab initio, without being so decreed, and their nullity may be shown in any collateral proceedings, namely:

Ib., secs. 965,972, etc.

Ibid., Lenoir

v.

Lenoir, 24 D. C.,

First. The marriage of a man with his grandmother, grandfather's wife, wife's grandmother, father's sister, mother's sister, mother, stepmother, wife's mother, daughter, wife's daughter, son's wife, sister, son's daughter, daughter's daughter, son's son's wife, daughter's son's wife, wife's son's daughter, wife's daughter's daughter, brother's daughter, sister's daughter.

Second. The marriage of a woman with her grandfather, grandmother's husband, husband's grandfather, father's brother, mother's brother, father, stepfather, husband's father, son, husband's son, daughter's husband, brother, son's son, daughter's son, son's daughter's husband, daughter's daughter's husband, husband's son's son, husband's daughter's son, brother's son, sister's son. Third. The marriage of any persons either of whom has been previously married and whose previous marriage has not been terminated by death or a decree of divorce. Sec. 1284. MARRIAGE MAY BE DECREED TO BE VOID.Any of such marriages may also be declared to have been null and void by judicial decree.

Sec. 1285. WHEN VOID FROM DATE OF DECREE.-The following marriages in said District shall be illegal, and App. 160; Mackey shall be void from the time when their nullity shall be declared by decree, namely:

v. Peters, 22 D. Č. App., 341.

Ib., sec. 1283.

First. The marriage of an idiot or of a person adjudged to be a lunatic.

Second. Any marriage the consent to which of either party has been procured by force or fraud.

Third. Any marriage either of the parties to which shall be incapable, from physical causes, of entering into the married state.

Fourth. When either of the parties is under the age of consent, which is hereby declared to be sixteen years of age for males and fourteen for females. (32 Stat., Part I, p. 543.)

Sec. 1286. BY WHOM SUIT BROUGHT.-A proceeding to declare the nullity of a marraige may be instituted in the case of an infant under the age of consent by such infant, through a next friend, or by the parent or guar