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posed would not, as the Supreme Court adjudged, bar the creditor from a civil action to recover any sum which he might prove to be due in excess of the judgment rendered in the present case.

“In other words," says the learned counsel, "imprisonment will satisfy (and there fore discharge) the judgment here rendered, leaving another and wholly civil action open to the complainants to recover any additional sum arising out of the same cause of action.” This possibility is said to be so wholly unjust that it ought not to be permitted to exist in any country subject to American jurisdiction. But we fail to appreciate the weight of this argument. We see no reason why the court may not, for the purpose of the criminal proceedings, find the amount wrongfully converted by the defendant for the purpose of fixing the sentence in this case, leaving the firm defrauded to recover in a civil action any sum or sums in excess of that amount which may be found due and remain unpaid to them. We are unable to perceive in this action such violation of the fundamental principles of justice as required the dismissal of the criminal action, leaving the parties complaining to the remedies of a civil suit.

We find no error in the judgment of the court below, and the same is affirmed.


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No. 157. Argued April 12, 13, 1910.—Decided May 16, 1910.

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Under the act of February 9, 1893, c. 74, 98, 27 Stat. 436, appeals

from and writs of error to the Court of Appeals of the District of Columbia are governed by $ 705, Rev. Stat., as to procedure, and by 88 997 and 1012, Rev. Stat., as to filing the transcript and assign

ment of error as from a Circuit Court. Rule 35 refers in terms only to writs of error and appeals under $ 5

of the Court of Appeals Act of March 3, 1891, but by Rule 21, it is in effect extended to every writ of error and appeal; and, although errors may not be assigned on a writ of error to the Court of Appeals of the District of Columbia, the court is not under obligation to dismiss the writ in case the assignment of errors is not filed as required by $8 997 and 1012, Rev. Stat., having by its rules reserved

the option to notice plain error whether assigned or not. In this case the court exercises the option reserved under Rules 35

and 21 to examine the record to ascertain if there are errors not assigned as required by 88 997, 1012, Rev. Stat., but so plain as to

demand correction. Under the complete jurisdiction which the United States exercises

over the District of Columbia it is within the power of Congress to arbitrarily fix a minimum amount to be assessed for benefits on property within the assessment district of a street opening proceeding, and so held as to act of June 6, 1900, c. 810, 31 Stat. 663,

as to the opening of extension of Eleventh Street. Where Congress passes an act superseding a former act in regard to

condemnation proceedings and providing for a reassessment of benefits, the reassessment is a continuance of the proceeding under the former act and not a new procceding; and the assessment for

1 Original Docket Title: Columbia Heights Realty Company v. Henry B. F. Macfarland and others, Commissioners of the District of Columbia.

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benefits is not barred by the statute of limitations if the proceeding

was commenced in time under the original act. Objections to qualifications of jurors and their examination and oath

in condemnation proceedings must be taken at the time. That counsel was not present when they were accepted and sworn does

not invalidate the impaneling of the jury if the statute does not so

provide. On condemnation proceedings where the statute directs the court to

follow the procedure prescribed for other proceedings, the court will properly vary the oath so as to relate to the property involved, and not to the property in the other proceedings; and if the bill of exceptions does not show that the essential matters were omitted from the oath, the presumption is that the statutory oath was complied with as far as applicable to the proceeding in which it was

administered. Where a verdict of damages and benefits is set aside as to benefits

and a reassessment ordered, the remainder of the verdict as to damages alone does not stand as res judicata that the property is damaged and there are no benefits that can be assessed under a subse

quent act as to procedure for reassessment of benefits. Where doubt as to meaning of one part of the charge is eliminated by

other parts of the charge, there is no reversible error. Where the jury in a condemnation proceeding exercises its own judg

ment derived from personal knowledge from viewing the premises and from expert opinion evidence not taken in presence of the court, the power of the court to review the award is limited to plain errors of law, misconduct or grave error of fact indicating partiality or corruption, and the court is not required to review all the evidence taken before the jury in order to determine whether the award is unreasonable or unjust where no specific wrong or injustice is pointed

out. Where the evidence in a condemnation proceeding is not before this

court and there is no agreed statement of facts this court cannot determine that the trial court erred in holding the award of the jury made on viewing the premises and expert evidence not so unreason

able or unjust as to require a new trial before another jury. 31 App. D. C. 112, affirmed.

The facts are stated in the opinion.

Mr. Leo Simmons and Mr. Arthur A. Birney for plaintiff in error.

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Mr. James Francis Smith, with whom Mr. Edward H. Thomas was on the brief, for defendants in error.

MR. JUSTICE LURTON delivered the opinion of the court.

In 1899, the then Commissioners for the District of Columbia filed a petition in the Supreme Court of the District for the condemnation of land necessary for the extension of Eleventh street northwest. In due course the statutory jury of seven filed an award of damages and of benefits. The verdict was confirmed so far as it awarded damages for the property, but was disaffirmed and vacated as to the amount of benefits. The award so far as it assessed the damages was accepted and the money has long since been paid; but from the order setting aside or vacating the assessment of benefits the Commissioners appealed to the Court of Appeals of the District, where that order was reversed and the proceeding remanded to the lower court with direction to vacate the order setting aside the amount of benefits, “and for such further proceedings in the case according to law as may be just and right.” The Supreme Court of the District on March 4, 1904, in obedience to the mandate of the Court of Appeals, set aside its former order vacating the assessment of benefits hy the jury, and thereupon heard the matter upon exceptions of the defendants to the award, and upon the motion of the petitioners for a confirmation

a of the award of benefits. Whereupon an order was made denying confirmation, and ordering that "in case the petitioners desire to proceed further in the premises, they shall within a reasonable time make application to this court for directions to the marshal to summon a jury of twelve, as provided by law.” From this order refusing confirmation the petitioners prayed an appeal, but did not perfect same. The next step in the case was taken on June 17, 1904, when the land owners moved the court

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to dismiss the proceeding, assigning as reason therefor that "the law under which such proceeding must be had has been repealed,” and, second, "for failure of petitioners to proceed as required by the order of this court of March 4, 1904." Upon this motion the court, on June 17, 1904, made an order in these words:

“Upon consideration of the proceedings herein and the motion filed by Abner Greenleaf and others on June 17th, A. D. 1904, it is by the court, this 17th day of June, A. D. 1904, ordered: That the petitioners in the above-entitled cause, within sixty days from the date hereof proceed in the matter of the reassessment of benefits herein, in accordance with the terms and provisions of the act of Con,gress approved June 6, 1900, entitled 'An Act for the Extension of Columbia Road east of Thirteenth Street, and for other purposes.'

Thereupon the then Commissioners, in continuance of the old proceeding under the act of March 3, 1899, c. 430, 30 Stat. at Large, page 1343, filed an amended and supplementary proceeding according to the terms of the later act of June 6, 1900, c. 810, 31 Stat. at Large, page 668, in which, after setting out all of the proceedings under the pending petition, they prayed for a reassessment of benefits against abutting and adjacent owners whose lands had not been assessed for benefits as required both under the former and latter acts of Congress in respect to the extension of Eleventh street northwest. Under this amended petition a jury of seven was impaneled, who returned an assessment of benefits against the plaintiffs. This, after exceptions had been overruled, was confirmed. A writ of error was taken by the plaintiffs in error to the Court of Appeals for the District of Columbia, where the judgment of the Supreme Court was affirmed. Thereupon this writ of error was sued out.

This protracted litigation is now before us, unaccompanied by an assignment of errors.

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