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Sec. 19; 10 D. C.

as aforesaid, to the plaintiff, or his attorney, within two

days thereafter. R. S. D. C., 821. Sec. 1559. DAMAGES.-Whether the defendant plead

and the issue thereon joined is found against him, or his plea is held bad on demurrer, or he makes 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 the 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.

Sec. 1560. JUDGMENT FOR DEFENDANT.-If the issue be App., 17; R. 8. D. c., 822.

found for the defendant, or the plaintiff 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, 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. R. S. D. C., 823. Sec. '1581. 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 to return the things. R. 8. D. C., 824. Sec. 1562. JUDGMENT FOR PLAINTIFF.—The judgment

in such cases shall be that the plaintiff recover against the defendant the value of the goods as found and the damages so assessed, to be discharged by the return of the things, within ten days after the judgment, with damages for detention, which the jury shall also assess.

CHAPTER LIII.

SET-OFF.

Sec. 1563. WHAT CAN BE SET-OFF.—Mutual debts and Fitzgerald

Wiley, 22 D. C. claims under contract between the parties to a common- App., 337; Hey. law action, or between any of the several defendants and the 22 L. R. 792;MS: plaintiff, or between one party and the testator or intes-Guire v. Gerstley, tate of the other, or between the testators or intestates 3 D. C. App., 114 of both parties, may be set off against each other by plea 18 D:C: App:: 76 in bar, whether said debts or claims be of the same or a 23 DD App, different nature or degree, and whether the claims be for 519: 18 D.C. App: liquidated debts or unliquidated damages for breach of 170 recoupment, contract; and if either debt be in the form of the penalty How 61 11 of a bond the exact sum to be set off shall be stated in the S.6301; 8 D.C. App.; plea.

59: 5 App., 524; 17 Sec. 1564. FORM OF PLEA.

App. 86.
-The plea of set-off may be

R. S. D. C.,811. as follows: That the plaintiff, at the commencement of the suit, was, and still is, indebted to the defendant in the sum of

dollars, for that, and so forth, as appears by the particulars of said indebtedness hereunto annexed; and defendant is willing that the same may be set off against the plaintiff's demand.

Sec. 1565. SET-OFF AN ACTION BY DEFENDANT.—A defendant who files a plea of set-off, founded on a claim against the plaintiff, shall be deemed to have brought an action at the time of filing such plea against the plaintiff for the matters mentioned in the plea; but it shall not be necessary that the amount of the claim so sought to be set off shall be such that the court would have jurisdiction of an original action to recover the same; and the plaintiff shall not thereafter be allowed to dismiss his suit without the consent of the defendant, but the defendant Ib., sec. 1503; shall be entitled to a trial of and judgment upon his D. C. App., 76. claim, but the same shall be open to the same defenses to which it would be open in an action brought by him thereon; and on the trial of an issue on said plea of set-off judgment shall be rendered for the balance found due, whether to the plaintiff or to the defendant, with costs: Provided, That nothing herein contained shall be construed to enlarge the jurisdiction of justices of the peace so as to authorize any judgment by any such justice in excess of three hundred dollars. Sec. 1566. EFFECT OF ASSIGNMENT.—When cross de- „Counterclaim,

22 D. C. App., mands have existed between persons under such circum- 329. stances that if one had brought an action against the

1 Damages for the wrongful suing out of an injunction can not be made the basis for & plea of set off. Wash. Brewery Co. v. Cosgrove, 34 L. R., 68.

Gerstley 26 D. C.

other a counterclaim or set-off could have been pleaded, neither can be deprived of the benefit thereof by an assignment by the other; but in an action by the assignee of any nonnegotiable debt the defendant may set off any indebtedness to him of the assignor, existing before notice of the assignment, as well as any indebtedness to him of the plaintiff.

Sec. 1567. SET-OFF AS TO PART.-If the defendant's plea of set-off covers or applies to only part of the plaintiff's demand judgment may be forthwith rendered for the part not controverted and the costs accrued until the filing of the plea, and the case shall be proceeded with for the residue as if the part for which judgment was

rendered had not been included therein. McGuire 0. Sec. 1568. ACTION AGAINST PRINCIPAL AND SURETIES. App., 193.

In an action against principal and sureties an indebtedness of the plaintiff to the principal may be set off as if he were the sole defendant, and in such case, if the indebtedness so set off shall exceed the plaintiff's demand, the judgment for the excess shall be in favor of the defendant, who is sued as principal.

Sec. 1569. ACTION BY TRUSTEE.-If the plaintiff is trustee for another, or has no actual interest in the contract on which the action is founded, a demand against the plaintiff shall not be pleaded by way of set-off, but a demand against the person whom he represents or for

whose benefit the action is brought may be pleaded Hey man Sec. 1570. ACTION BY OR AGAINST EXECUTOR, AND SO Thomas, 32 L. R.,

FORTH.-In an action against an executor or administrator, in his representative capacity, the defendant may plead, by way of set-off, a demand belonging to the decedent where he would have been entitled to rely upon the same in an action against him; and in an action brought by an executor or administrator, in his representative capacity, a demand against the decedent, belonging at the time of his death to the defendant, may be pleaded by way of set-off, as if the action had been brought by the decedent in his lifetime.

Sec. 1571. SETTING OFF JUDGMENTS. Where recipApp. 318; R. Š. rocal claims between different parties have passed into

judgments the court may, on motion, in its discretion, order that the judgments shall be set off against each other and satisfaction of both be entered to the amount of the smaller claim.

0.

792.

Fedarwisch Alsop, 18 D. C.

D. C., 813.

CHAPTER LIV.

SURETIES.

Sec. 1572. COUNTER SECURITY.—When the surety, or

Secs. 128, 164. his personal representatives, of any officer, commissioner, receiver, or trustee appointed under a decree of court and required to give bond shall apprehend himself to be in danger of suffering from the suretyship and shall petition the court to be relieved from the suretyship, or that the court shall require said officer, commissioner, receiver, or trustee to give counter security, the court may, on reasonable notice to the trustee or other officer, require him to give counter security or to give a new bond in the same manner as if none had been given by him, and on his failure so to do by a day named may remove him from his office or trust and appoint a new trustee or other officer in his stead to complete the duties of his office or trust, and may thereupon order him to deliver over to his successor all the trust property, including moneys, books, papers, bonds, notes, and evidences of debt, and may compel compliance with said order by attachment.

Sec. 1573. JUDGMENTS AGAINST.-Where any person kesec. Willoughshall recover a judgment or money decree against the by, 21 D. C. App., principal debtor and a surety or indorser, and the judgment shall be satisfied by the surety or indorser, the latter shall be entitled to have the judgment or money decree entered by the clerk to his use and to have execution in his own name against the principal, and where any judgment or money decree shall be rendered against several sureties and one of them shall satisfy the whole debt, the said surety shall be entitled to have the judgment or decree entered to his use, as aforesaid, and to have execution against each of the other sureties in the judgment or decree for a proportionate part of the debt so paid by him; and on the motion of said surety so paying the entire debt and notice to the other sureties the court may determine for what amount execution shall issue against each of the other sureties.

379

Sec. 1508; Man.

314.

CHAPTER LV.

SURVEYOR,

R. S. D. C. 472. Sec. 1574. OFFICE.—The office of the surveyor of the

District shall be the legal office of record of the plats and subdivisions of all private property in the District of Columbia and of all property belonging to the District of Columbia. And the copies of all records of the division of squares and lots made between the public and the original proprietors and all plats, papers, books, maps, and records now in the office of the surveyor shall remain therein.-Act of June 30, 1902 (32 Stat., Part I, p. 544).

(Repealed.) [Sec. 1574. OFFICE.—The office of the surveyor of the District shall be the legal office of record of the plats of all private property, in the District of Columbia, and authenticated copies of all records of the division of squares and lots made between the public and the original proprietors

or otherwise authorized by law shall be kept in said office.] R. S. D. C., 473.

Sec. 1575. TRANSCRIPTS.—All transcripts from such records certified by the surveyor shall be prima facie evidence thereof.

28 Stat., 698.

Ib.

(Repealed-32 Stat., Part I, p. 544.)

[Sec. 1576. RECORDS.-The records of the surveyor of the District of Columbia shall be a part of the United States property under the jurisdiction of the Commissioners of the District of Columbia.]

Sec. 1577. SALARY.—The surveyor of the District of Columbia shall receive a salary of three thousand dollars per annum in lieu of fees, and shall be appointed by the Commissioners of the District of Columbia for a term of four years, unless sooner removed for cause, and shall be under the direction and control of the said Commissioners.

Sec. 1578. BOND.—The surveyor shall give bond to the United States in the penalty of twenty thousand dollars, with security, to be approved by the Commissioners, conditioned for the faithful discharge of the duties of his office, and shall take and subscribe an oath or affirmation before the Commissioners that he will faithfully and impartially discharge the duties of his office, which bond and oath shall be deposited with the Commissioners of the District of Columbia.

Sec. 1579. ASSISTANT SURVEYOR.—The Commissioners of the District of Columbia, on the recommendation of the surveyor, are hereby authorized to appoint one assistant surveyor, at a salary of one thousand eight hundred dol

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