Motion for re

SEC. 1557. MOTION FOR RETURN.-On the taking possession of the goods and chattels by the marshal, by virtue of the writ of replevin, turn of property. the defendant may, on one day's notice to the plaintiff or his attorney, move for a return of the property to his possession; and the court may thereupon inquire into the circumstances and manner of the defendant's obtaining possession of such property, and if it shall seem just may order the property to be returned to the possession of the defendant, to abide the final judgment in the action, and may, in its discretion, require the defendant to enter into an undertaking, with surety or sureties, similar to that required of the plaintiff upon the commencement of the action, and in such case a judgment for the plaintiff shall be rendered against the surety or sureties, as well as against the defendant. If it shall appear that the possession of the property was forcibly or fraudulently obtained by the defendant, or that the possession, being first in the plaintiff, was procured or retained by the defendant without authority from the plaintiff, the court may refuse to order the return. The defendant may also, on similar notice, object to the sufficiency of the security in the undertaking, and the court may require additional security, in default of which the property shall be returned to the defendant, but the action may proceed as if the property had not been taken.

tion.

mo.

SEC. 1558. OFFICER'S DUTY.-If the defendant shall notify the officer Officer's duty. taking possession of the property, in writing, of his intention to make when notified of either of the motions aforesaid, it shall be the duty of the officer to impending retain possession of the property until said motion shall be disposed of, provided that the same shall be filed and notice given, as aforesaid, to the plaintiff, or his attorney, within two days thereafter.

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.

Damages.

-where defend

SEC. 1560. JUDGMENT FOR DEFENDANT.-If the issue be found for Judgment for de the defendant, or the plaintiff dismiss or fail to prosecute his suit, the fendant. 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. SEC. 1561. If the defendant has eloigned the things sued for the court may instruct the jury, if they find for the plaintiff, to assess such ant has eloigned things sued for. damages as may compel the defendant to return the things. SEC. 1562. JUDGMENT FOR PLAINTIFF. The judgment in such cases Judgment for shall be that the plaintiff recover against the defendant the value of plaintiff. 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 FIFTY-THREE.

SET-OFF.

SEC. 1563. WHAT CAN BE SET-OFF.-Mutual debts and claims under contract between the parties to a common-law action, or between one party and the testator or intestate of the other, or between the testators or intestates of both parties, may be set off against each other by plea in bar, whether said debts or claims be of the same or a different SUP R S VOL 2-117

Form of plea.

Set-off an action by defendant.

-jurisdiction of justices of the peace not larged.

en

Effect of assignment.

Set-off as to part.

Action against

ties.

nature or degree, and whether the claims be for liquidated debts or unliquidated damages for breach of contract; and if either debt be in the form of the penalty of a bond the exact sum to be set off shall be stated in the plea.

SEC. 1564. FORM OF PLEA.-The plea of set-off may be 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 shall be entitled to a trial of and judgment upon his 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 demands have existed between persons under such circumstances that if one had brought an action against the 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.

SEC. 1568. ACTION AGAINST PRINCIPAL AND SURETIES.—In an action principal and sure- 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.

Action by trustee.

etc.

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.

Action by or SEC. 1570. ACTION BY OR AGAINST EXECUTOR, AND SO FORTH.—In an against executor, 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 reciprocal 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.

CHAPTER FIFTY-FOUR.

SURETIES.

Setting off judg

ments.

SEC. 1572. COUNTER SECURITY.-When the surety, or his personal representatives, of any officer, commissioner, receiver, or trustee ity. 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.

Sureties.

Counter

secur

SEC. 1573. JUDGMENTS AGAINST.-Where any person shall recover Surety or indors. a judgment or money decree against the principal debtor and a surety ment against priner paying judgor indorser, and the judgment shall be satisfied by the surety or indorser, cipal and himself the latter shall be entitled to have the judgment or money decree entered to have recourse by the clerk to his use and to have execution in his own name against against principal. 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.

CHAPTER FIFTY-FIVE.

SURVEYOR.

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.

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

Surveyor.

Office to be office

of record of plats of all property, etc.

-transcripts from records.

Records District

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

Salary of sur

SEC. 1577. SALARY.-The surveyor of the District of Columbia shall receive a salary of three thousand dollars per annum in lieu of fees, veyor. 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

-bond.

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 impar tially 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 dollars per annum, and such employees as may in the judgment of the Commissioners of the District of Columbia be required for the surveyor's office and operation, at an aggregate expense of not exceeding ten thousand dollars in any one year.

SEC. 1580. SCALE OF PLATS.-The plats and squares and subdivisions of the city of Washington shall be drawn upon a uniform scale of not less than one inch to fifty feet, and shall show the lines of all subdivisions of the squares as the same existed at the date of the completion of each square.

SEC. 1581. SUBDIVISIONS.-Whenever the proprietor of any square or lot shall deem it necessary to subdivide the same into convenient building lots or portions for sale and occupancy and alleys for their accommodation, he may cause a plat to be made by the surveyor, on which shall be expressed the dimensions and length of all the lines of such portions as are necessary for defining and laying off the same on the ground, and may certify such subdivision under his hand and seal, in the presence of two or more credible witnesses, upon the same plat or on a paper or parchment attached thereto.

SEC. 1582. At the request of the proprietor the surveyor shall examine whether the lots or parcels into which any square or lot may be subdivided as provided in the preceding section agree in dimensions with the whole of the square or lot so intended to be subdivided, and whether the dimensions expressed on the plat of subdivision be the true dimensions of the parts so expressed; and if upon such examination he shall find the plat correct, he shall certify the same under his hand and seal, with such remarks as appear to him necessary, and shall record the plat as examined in a book to be kept by him for that

purpose.

SEC. 1583. REFERENCE TO SUBDIVISIONS. -When a subdivision of any square or lot shall be so certified, examined, and recorded, the purchaser of any part thereof or any person interested therein may refer to the plat and record for description in the same manner as to squares and lots divided between the Commissioners and original proprietors.

SEC. 1584. ALLEYS. The ways, alleys, or passages laid out or expressed on any plat of subdivision shall be and remain to the public or subject to the uses declared by the person making such subdivision at all times under the same police regulations as the alleys laid off by the Commissioners on division with the original proprietors.

SEC. 1585. DEFICIENCY IN NUMBER OF FEET.-Whenever the surveyor shall lay off any lot, or any parts into which a square or lot may be subdivided, as provided in this chapter, he shall measure the whole of that front of the square on which such lot or part lies, and if, on such admeasurement, the whole front of the square exceeds or falls short of the aggregate of the fronts of the lots on that side of the square, as the same are recorded, he shall apportion such excess or deficiency among the lots or pieces on that front agreeably to their respective dimensions.

SEC. 1586. PARTY WALLS. -Whenever, on such admeasurement, the wall of a house previously erected by any proprietor shall appear to stand on the adjoining lot of any other person in part less than seven

-when wall

on adjoining lot.

inches in width thereon, such wall shall be considered as standing altogether on the land of such proprietor, who shall pay to the owner deemed to stand of the lot on which the wall may stand a reasonable price for the ground so occupied, to be decided by arbitrators or a jury, as the parties interested may agree.

SEC. 1587. If the wall of any house already erected cover seven inches or more in width of the adjoining lot, it shall be deemed a party wall, according to the regulations for building in the District, and the ground so occupied more than seven inches in width shall be paid for as provided in the preceding section.

SEC. 1588. The surveyor shall ascertain and certify and put on record, at the request and expense of any person interested therein, the fact of the occupation of land by a party wall, as mentioned in the preceding section.

SEC. 1589. ADJUSTING LINES OF BUILDINGS.--It shall be the duty of the surveyor to attend, when requested, and examine the foundation or walls of any house to be erected, when the same shall be level with the street or surface of the ground, for the purpose of adjusting the line of the front of such building to the line of the street and correctly placing the party wall on the line of division between that and the adjoining lot; and his certificate of the fact shall be admitted as evidence and binding on the parties interested.

-when deemed

party wall.

-certificate of.

Adjusting lines

Order of survey

cuted.

SEC. 1590. ORDER OF SURVEY TO BE SPEEDILY EXECUTED.—The surveyor shall, as speedily as possible, execute any order of survey made to be speedily exeby any court or private individual of any lot or square within the city of Washington, or of any land within the District of Columbia outside of said city, and shall make due return of a true plat and certificate thereof.

Surveys for District.

SEC. 1591. SURVEYS FOR DISTRICT.-It shall be the duty of the surveyor to execute any surveying work for the District of Columbia without charge, on the order of the Commissioners; and all fees for surveys made by the surveyor or the assistant surveyor shall be paid over to the collector of taxes of the District of Columbia under regulations to be prescribed by the Commissioners of the District of Columbia, and be covered into the Treasury of the United States as other revenues of the District are now; and the field notes of the surveyor and his assistant shall be preserved and shall be a part of the etc. public property of the District of Columbia, and all records, plats, plans, and other papers or documents now existing, or hereafter made or secured by the office of the said surveyor, shall be delivered by each surveyor to his successor in office, and no plat or survey of land shall be recorded in the office of the surveyor of the District of Columbia except it be certified to as correct by the surveyor of said District.

-fees, etc.

-field

Assistant

notes,

SEC. 1592. ASSISTANT SURVEYOR'S DUTIES.-The assistant surveyor shall take the same oath his principal is required to take, and may, veyor's duties. during the continuance of his office, discharge and perform any of the official duties of his principal, and any default or misfeasance in, office by the assistant surveyor, or other assistant or helper of the surveyor, shall be deemed a breach of the official bond of his principal.

SEC. 1593. FEES.-The Commissioners of the District of Columbia are hereby authorized from time to time to prescribe a schedule of fees to be charged by the surveyor for his services, which schedule shall be printed and conspicuously displayed in the office of the

surveyor.

Whenever

sur

Fees of surveyor.

Subdivisions of

States

SEC. 1594. SUBDIVISIONS OF UNITED STATES SQUARES. the President shall deem it necessary to subdivide any square or lot United belonging to the United States within the city of Washington, not squares. reserved for public purposes, into convenient building lots or portions