Volume 11 — Appeals, District of Columbia

Hearing on an appeal by the complainants from a decree dismissing a bill in a suit seeking to have a trust declared upon certain real estate. The facts are sufficiently stated in the opinion.

Hearing oil an appeal by a garnishee from a judgment of condemnation, in proceedings by way of attachment or garnishment issued by way of execution in a suit in equity.

Hearing on an appeal by the plaintiff from a judgment on verdict for the defendant in an action to recover damages for death by wrongful act.

<p>Hearing on an appeal by the United States from a judgment sustaining a demurrer to a declaration in an action upon a bond.</p> <p>The Court in its opinion stated the case as follows;</p> <p>The United States have appealed from a judgment of the Supreme Court of the District of Columbia rendered against them in an action upon a bond. The declaration, to which a demurrer was sustained, sets out the following facts, substantially :</p> <p>1. Defendant, James W. Pumphrey, together with William L. Taylor and Augustus Davis, Jr., on August 21,1894, signed, sealed and delivered the bond, wherein they acknowledged themselves to be indebted to the plaintiffs in the sum of $5,000.</p> <p>2. The condition of the bond was the faithful-performance of certain contracts made by said William L. Taylor, with tlie consent and express approval of the Commissioner of Indian Affairs, with certain Indians, male and female, named in the bond as follows: Eagle Voice, Black Hawk, At the Straight, Running Bear, Blue Bird, Cyrus Stone, Holy Bird, Case Knife, Clement Whirlwind Soldier, Duck, Mrs. Black Hawk (Red Woman), Columbia Crazy Cat, Jumper, Emma Blue Bird, and Arrow Side.</p> <p>3. These Indians belonged to the Rosebud Agency, South Dakota, and were engaged to accompany said Taylor and form a part of a “ Wild West Show ” which he proposed to exhibit throughout the country.</p> <p>4. The contracts are set out in the declaration, and appear to have been formally executed by the parties respectively and approved by the Indian agent.</p> <p>5. In consideration of the services of the said Indians, said Taylor agreed to pay them a monthly salary from the date of departure from the agency until return thereto; the payment for the last month to be paid after the return of the Indians to the agency, and in the presence of the Indian agent. He further agreed to provide them with proper food and raiment, and to discharge all traveling and needful incidental expenses during the said time; to protect them from immoral influences and surroundings; to provide all medical attendance and medicine; to do all things requisite and proper for their health, comfort and welfare, and to return them to the agency within the time specified by the Department of the Interior without charge or cost to them or to the United States.</p> <p>6. The said contracts and bond having been approved by the Commissioner, the said Indians departed from the agency August 21, 1894, and remained away, in the performance of their obligations, until April, 1895.</p> <p>7. The said Taylor did not perform his contract as stipulated. He failed and refused to pay the salaries contracted for and to discharge their traveling and needful incidental expenses, and to furnish them proper raiment.</p> <p>He further failed to provide them with the necessary means to return to their said agency, and the United States were compelled to return them and to pay all the cost of their transportation from Louisville, Kentucky, to said agency.</p> <p>8. The sums due the said Indians for wages and damages amount to $2,800, and the amount expended for them by the United States as aforesaid was $434; and of these recovery is prayed.</p>

<p>Hearing on an appeal from an order quashing a writ of certiorari issued to a justice of the peace.</p>

<p>Hearing on a motion to dismiss an appeal from a judgment awarding a writ of mandamus.</p>

Hearing on an appeal by the defendant from a decree in a suit to establish complainant’s right to a fund in the hands of the Secretary of State, and to enjoin the defendant from receiving the same. The facts are sufficiently stated in the opinion.

<p>Hearing on a motion by the appellee to dismiss the appeal upon the groundvthat the transcript of record was not filed within the time prescribed by Rule XIV of this court.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on appeal by the defendant from an injunction pendente lite.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is an appeal from an interlocutory order of the Supreme Court of the District of Columbia, awarding a temporary injunction pending the suit to restrain an alleged nuisance.</p> <p>In the year 1891 a foreign corporation, known as the Baltimore United Oil Company, procured permission from the municipal authorities of the District of Columbia to erect a warehouse, stable, two tanks for oil, a small office building, and a boiler house, on the square of ground in the city of Washington designated as square north of square 697, a rather sparsely settled region in the southeastern part of the city, and thereupon proceeded to erect the specified buildings—not, it seems, without some protest from the complainant John G. Oeser and others, then already residents of square 697, immediately south of the company’s square. In 1892, the Baltimore United Oil Company transferred its rights to the appellant, the Standard Oil Company, which thereupon proceeded to erect another oil tank upon the premises of larger dimensions than those authorized and constructed in 1891, and which has continued ever since that time to use all these oil tanks for the storage of oil, alleged to be of an inflammable and combustible character, and the premises generally for the transaction of its business. It is alleged that, by reason of the danger from explosion, the danger from fire, the offensive odors emitted, and the depreciation thereby of the property of the appellees and others in the neighborhood, the business of the company constitutes a nuisance which should be restrained by injunction^ especially in view of the fact that there were in the immediate neighborhood a brick kiln and the roundhouse of the Baltimore and Potomac Railroad Company, by which the danger from fire was greatly aggravated.</p> <p>In January of the present year, 1897, the appellant company procured from the municipal authorities of the District of Columbia, against the protest of the appellees and other owners of adjacent property, a permit to construct another and yet larger oil tank, which the appellees allege will greatly aggravate the original nuisance and seriously impair their rights; and the company was proceeding with the construction thereof, when it was arrested in its progress by the institution of the present suit, which was commenced by a bill in equity filed by the appellees to restrain the construction of the newly authorized tank, and likewise to restrain the company from the further use of the other tanks and the boiler for the storing of oil therein or the delivery of oil therefrom. Affidavits were filed with the bill in support of its allegations, and a rule to show cause was thereupon issued, and served upon the defendant company.</p> <p>The company filed an answer, or what purports to be an answer—for its execution seems to have been exceedingly defective—and also numerous affidavits, denying that its operations were in any manner a nuisance calling for the intervention of a court of equity.</p> <p>The court, however, upon the bill and answer and affidavits, and the rule to show cause, made an order for an injunction to last until the final hearing of the cause, by which, in the first place, the company was enjoined and restrained from the further proceeding with the construction of its proposed new tank, and from using it for the storage of oils, and in the second place, the company was enjoined and forbidden, from and after June 1,1897, from using any of the previously existing tanks, storehouses, or other buildings in the square, for the storage of oils or for the delivery of oils therefrom for removal from the premises. From this order the company has appealed.</p>

Hearing on an appeal by the defendants from a judgment under the 73d Rule of the Supreme Court of the District of Columbia. The facts are sufficiently stated in the opinion.

<p>Mandamus.</p> <p>A judgment dismissing a petition for a writ of mandamus to the Commissioner of Patents, affirmed; following Bernardin v. Seymour, 10 App. D. C. 296.</p>

<p>Hearing on an appeal by the plaintiff from a judgment on a verdict directed by the court in an action to recover penalties for the alleged infringement of a copyright.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by the defendant from the judgment on verdict in favor of the plaintiff in an action to recover damages for personal injury.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This action was brought to recover for personal injuries received by the plaintiff, Leonidas W. Grant, occasioned, as alleged, by the negligence of the agents and servants of the defendant, the Washington and Georgetown Railroad Company, a street railway company in the city of Washington.</p> <p>The facts of the case, as they are stated, appear to be these: On the 19th of January, 1895, the plaintiff took a Fourteenth street car at Third street and Pennsylvania avenue, northwest, on his way to the Navy Department, where he was employed ; that a Mr. Hall, also employed in the same department, and himself were the only passengers on the car at the time of the accident; that, after turning into Fifteenth street from Pennsjdvania avenue, the car stopped, then started again, and began to slow up as it approached the transfer station at G street; that, upon its so slowing up, both the plaintiff and Hall arose from their seats, and Hall passed out of the front end of the car; and the plaintiff through the rear end out to the platform ; that plaintiff stepped on that part of the platform next to the step that led down from it, and stood there waiting until the car came to a stop, when he stepped to the ground ; that the car stopped on Fifteenth street, just south of G street, opposite the Riggs House, at what he supposed was the regular stopping place, and that he waited on the platform until it stopped, holding, according to his recollection, the rail on the body of the.car; that, just as he made the step, he felt himself jerked, and remembered nothing more until he found himself crawling about on the ground; that every time he would get up, he would fall again, until a young man came to his assistance and carried him into the Riggs House, from which he was taken home in a carriage. His injuries are described as being very severe, and his loss considerable. The plaintiff further testified, on cross-examination, that he supposed the place where the car stopped to be the regular stopping place, because he saw the flagman, the transfer station, and the general surroundings; that his recollection of the manner in which the accident occurred is indistinct, such indistinctness of recollection beginning at the point of stepping from the platform ; that he got down on the step just about the time the car stopped; that the conductor -was standing right near him upon the rear platform, when he came out upon it; and when he stepped from the platform to the step, the car was slowing up, and he stood ready to step off' when it stopped ; that he supposed the jerk took place after he got on the street, and while he had hold of the handle-holt; that, just as he stepped to the pavement, he felt the jerk forward and fell; that the car jerked him just as he stepped down; that ho did not think it was necessary to notify the conductor that he was going to get off; that he supposed it was the regular stopping place, and when the car stopped he got off, as he always did, without notifying the conductor; that the conductor was standing there on the platform as the plaintiff descended the steps. This is the full and particular account of the occurrence as given by the plaintiff himself. There were other witnesses who testified on his behalf, and whose testimony tended to corroborate his account of the accident. The evidence on the part of the defendant, given by the conductor, the gripman, and the station agent, was in striking conflict with that of the plaintiff in many particulars. It was testified by one of the witnesses for the plaintiff that the car stopped on the south side of G street, in front of the Higgs House, on this occasion, because, as the car approached G street, there was an express wagon passing on that sireet, just in front of the car; and by another witness for the plaintiff, it wTas proved that the train stopped in front of the Higgs House on that occasion, because another and preceding train of the defendant had stopped and was standing in frontof the transfer station on the north side of G street.</p> <p>The witnesses for the defendant proved that the car producing the accident made no stop in front of the Riggs House, but passed it at the regular rate of speed; that there was no train ahead of the train on which the accident is supposed to have occurred, stopping at the transfer station, and that no express wagon crossed in front - of the car as it approached G street. The conductor testified that after turning into Fifteenth street, the man who had come out of the grip car back into the coach came out on the rear platform and stood alongside of him; that he watched him closely until after the train passed F street, and, as the man said nothing about wanting to get off, he paid no further attention to him; that as the train neared G street his (the conductor’s) attention was directed to the adjoining track, and when the train stopped at the transfer station he looked around, missed the man who had been standing alongside of him, and saw him standing up in the street, in front of the Riggs House, brushing his clothing. The transfer agent of the defendant testified that the regular stopping place for passengers on trains bound north on Fifteenth street was at the transfer station north of G street; and that passengers who got off in front of the Riggs House would not be entitled to transfers; though both he and the conductor proved that if a preceding train occupied the tracks at the transfer station on the north side of G street, the succeeding train coming up would stop in front of the Riggs House; and if a passenger got off while the train was so stopped, he would be entitled to a transfer; and further, that if the grip car and two trailers -were stopping at the regular stopping place, the rear end of the coach -would extend to the north building line of G street; that it does not frequently happen that trains stop below G street, because another train is at the regular stopping place; that this does happen when a forward car has been detained in some way; and that very often a wagon crosses the track and detains the cars.</p> <p>Upon the whole evidence, both parties asked instructions to the j ury; and all the prayers propounded by the plaintiff and several of those on the part of the defendant were granted, while several of the prayers offered by the defendant were refused, and among the latter was one that asked the jury to be instructed that there was no evidence tending to prove negligence on the part of the defendant, as alleged, and, therefore, the plaintiff was not entitled to recover. The defendant excepted to the granting of the plaintiff’s prayers, and to the refusal to grant those of the defendant which were rejected; and the defendant also excepted to certain parts of the general charge of the court to the jury.</p> <p>The errors assigned by the appellant, on the exceptions taken, are reduced to three, to wit:</p> <p>1st. That the court erred in refusing to instruct the jury that there was no proof of negligence on the part of the defendant to entitle the plaintiff to recover.</p> <p>2d. In refusing to instruct the jury that, as matter of law, the conductor on the car was entitled to notice of the desire of the plaintiff to get off the car in front of the Riggs House, if that place was found not to be the regular stopping place for passengers to get off.</p> <p>3d. In refusing to instruct the jury that the plaintiff’s right to recover was limited to the allegations of his declaration.</p>

Hearing on an appeal by the complainant from a decree dismissing a bill of complaint in a suit for the foreclosure of a deed of trust and for partition.

Hearing on an appeal by the plaintiffs from a judgment on verdict in an action on a promissory note. The Court in its opinion stated the case as follows: The appellants, Bushrod Robinson, William L. Chery and Eugene F. Robinson, as plaintiffs, brought this suit in the Supreme Court of the District of Columbia May 12, 1896, upon a note made by the defendant, Henry B. Parker, July 15, 1892, and payable to the order of Robinson, Chery and Robinson.

<p>Hearing on an appeal by the defendant from a judgment on demurrer to a plea of coverture in an action on several promissory notes.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by the complainants from a decree dismissing a bill in equity for an accounting.</p> <p>The Court in its opinion stated the case as follows:</p> <p>The appellants, Josephine A. Patten, Mary E. Patten, Edythe A. Patten and Helen Patten, were, during the earlier months of the year 1889, the owners, as tenants in common, of a four-fifths interest in a certain piece of real estate on F street, in the city of Washington. Their married sister, Mrs. Augusta Glover, with whom and with whose husband their relations at the time were not entirely friendly, was the owner of the remaining one-fifth interest in the property. The property had been derived to them from their deceased mother; and deeming it desirable that they should hold it all, the complainants wished to purchase the Glover interest. For the reason intimated, however, they did not wish to communicate directly with the Glovers in regard to it, nor did they even wish it to be known by them that they (the appellants) desired the property. It seems to have been supposed that the Glovers would not sell at all to the complainants, although they might be induced to dispose of the property to other persons. The appellants communicated with their attorney,'Mr. Henry E. Davis, on the subject, and Mr. Davis communicated with the appellee, Brainard H. Warner.</p> <p>The appellee was in the business of dealing in.real estate as a member of the firm of B. H. Warner & Co., and was ■also at that time the president of the Columbia National Bank. That bank held a note given by Mrs. Glover and indorsed by her husband, originally for $5,000 and after-wards curtailed to $3,500, which the appellee had been instrumental in causing the bank to take. There was a question raised as to the validity of that nóte—mainly, it would seem, on the ground that the maker of it was a married woman, and it was very doubtful whether it had been executed with reference to her separate estate, and also probably because it was not secured by any conveyance of property. How the knowledge of the existence of that note camó to the complainants is not entirely clear from the record before us; nor, perhaps, is it important. It seems, however, that they communicated that fact to their attorney, and that Mr. Davis thereupon sought to make it the instrumentality by which he might acquire for his clients the interest in the P street property which they desired to purchase.</p> <p>Mrs. Glover, in conjunction with some of the complainants, her sisters, had been appointed administratrix of the personal estate of her mother. In order to procure the necessary administration bond, she had executed a deed of trust by way of mortgage of her interest in the estate derived from h.er mother,- the penalty being in a very large amount. Prom this deed of trust, whether - by accident or design does not appear, her interest in the F street property had been omitted. Mr. Davis suggested to the appellee Warner that he might to some extent secure the note in question by procuring a deed of trust from the Glovers upon the F street property. The suggestion was eagerly accepted. Mr. Davis procured from the land records of the District a description of the property, for which service he received compensation from Warner, and the latter, after much effort, procured the execution by the Glovers, in New York, on September 19, 1889, of the desired deed of trust upon the F street property. The deed purported to secure a promissory note for §5,000, to which figure the loan had been again advanced, or was agreed to be advanced, as a consideration for the execution of the deed. There is some discrepancy in the record, which probably is not important, with regard to the date of this new note. The deed of trust recites it as being the 19th of September, 1889, the same as the date of the deed, while the records of the bank would show it to have been September 23, 1889. It was payable six months after date.</p> <p>Thus far there is no dispute about the facts, or, at all events, they are satisfactorily proved. But the subsequent transactions and the previous circumstances that led up to them are in controversy, and it is difficult, if not impossible, to reconcile the conflicting statements of the parties, and the testimony adduced by them in support of those statements.</p> <p>The claim of the complainants, as stated in their bill filed in this cause, is, “that at or about the time of the said advice or information given by said Davis to said Warner, the said Davis informed said Warner that he, said Warner, could, in return for the assistance and advice then given him, secure for the complainants, the said interest of the said Augusta P. Glover in said real estate; and that if he would so do these complainants would purchase the same and would assume and pay the incumbrance which Mrs. Glover should place thereon to secure the indebtedness aforesaid; . . . that at said time the said Davis cautioned the said Warner not to disclose to Mrs. Glover or her husband that these complainants were the real purchasers of said property, as, if the said Glovers should become aware of the fact that these complainants desired to purchase the said interest in said property, they, the said Glovers, would refuse to sell the same;” and “that thereupon the said Warner assented to said proposition, and undertook and agreed with the said Davis to negotiate with the said Glovers and purchase from them the interest of the said Glovers in the said real estate for the benefit of these complainants.”</p> <p>The appellee, on the other hand, denied that he was in any manner employed as an agent in the business for the appellants, or that there was any such proposition made to him by Mr. Davis or assented to by him; and he averred that he purchased the Glover interest for himself and with his own money, knowing full well, however, that the complainants would purchase from him.</p> <p>At all events, negotiations were opened between the appellee and the Glovers for the purchase by the former of the F street lot, or the Glover interest in it. It is claimed by the appellants that the appellee broached .the matter to Mr. Glover in pursuance of his understanding with Mr. Davis. Mr. Warner intimates, although he is not certain of it, that Mr. Glover broached the matter to him. Presumably, the negotiation, however initiated, was not commenced until after the execution of the deed of trust to secure the note for $5,000; that is, after September 19,1889. The result of the negotiations was that, on November 16,1889, an agreement for the purchase of the Glover interest in the F street property was entered into between Warner and the Glovers, and a check of B. H. Warner & Co. for $500,'with a memorandum upon it that it was a deposit for the purchase of part of lot 13, in square 290, which' was the F street property, was drawn to the order of Mrs. Glover, and apparently sent to her in New York, where it was deposited in hank for collection. It was paid in Washington on November 21,1889.</p> <p>A. check of B. H. Warner for $2,000, dated on November 22, 1889, and paid in Washington on November 26, 1889, and a check of B. H: Warner for $3,500, dated on November 23, 1889, and paid in Washington on November 30, 1889, wrere similarly drawn to the order of Mrs. Glover and deposited by her in New York for collection. On November 30, 1889, the Glover note in the Columbia National Bank for $5,000, with the accrued interest amounting to $50, was paid by check of B. H. Warner for $5,050. Subsequently, two other checks, testified by the appellee to have been given on the same account, one for $200, dated January 25,1890, and paid in Washington on February 3,1890, aud the other for $44.79, dated February 26, 1890, and paid in Washington on March 17, 1890, were drawn by him to the order of Mrs. Glover, and transmitted to New York.</p> <p>The sum total of these payments is $11,294.79, and this sum the appellee testifies in this cause to have paid to Mrs. Glover on account of his purchase. But whether this sum wras the sum agreed upon in the negotiations, or how it wras reached if it was so agreed upon, or why it was divided into the several checks that have been recited, the record does not show, and there is no attempt to explain. It may be inferred that the agreed amount of the purchase money, subject to the deed of trust, was $6,000; for that is the amount of the several checks that were delivered at or about the time, the smaller checks ($200 aud $44.79) having evidently been given for some subsequent adjustment of the matter or for some subsequent consideration.</p> <p>On November 16, 1889, which seems to have been the day on which the agreement was made, as w7ould appear from the memorandum on the check for $500 already mentioned, the Glovers executed and acknowledged in Washington the deed of conveyance of their interest in the F street property to the appellee, Warner. But it is doubtful whether the deed was then delivered. The inference would rather be that it was not then delivered to the appellee, or that if it was then delivered, it was not to be recorded until'the later day; and.it was not in fact recorded until November 23, 1889, when the check for $3,500, completing the sum of $6,000 for the interest, was delivered or transmitted by the appellee Warner to Mrs. Glover. This deed recites a merely nominal consideration of ten dollars.</p> <p>Very soon after the execution of the deed of conveyance by the Glovers to Warner, and very probably either on the day of the actual execution of the deed or on the day of it's delivery to him, if those days were different, as they seem to have been, Warner communicated with Davis by telephone; and there were various communications between them on subsequent days. They differ greatly in their testimony as to the purport of these communications; and especially as to the purport of the first communication by telephone. One feature of it, at least, is beyond question ; and that is, that Mr. Warner then informed Mr. Davis that he (Warner) had procured the deed, or the title to the property in question, and was prepared to transfer it for $13,000. Mr. Davis testifies that he understood the purport of the communication to be that Mr. Warner had taken the property from the Glovers for $13,000, and was ready to transfer it to the appellants upon the payment or repayment to him. of that amount. Mr. Warner’s testimony is to the effect that, having secured the title for himself, he was now ready to deal with the purchaser whom Mr. Davis had stated he would produce or procure for him.</p> <p>Mr. Davis thereupon procured the sum of $13,000 from his clients by means of a promissory note negotiated for them by him with Diggs & Go.; paid that sum to Warner, and received from Warner a deed of conveyance to the appellants, and a deed of release of the deed of trust to secure the $5,000. This transaction must have occurred, according to the testimony of Mr. Davis, on November 30, 1889; for, although the deed from Warner to the appellants bears date and was executed on the previous day, November 29, the execution of the deed of release was on November 30, and Mr. Davis states that both deeds were delivered to him at the time that he paid the $13,000. Mr. Warner admits, however, that he drew upon this sum of $13,000 in order to pay the Glover note of $5,000.</p> <p>The deeds were delivered for record and duly recorded, and the transaction was presumed to be at an end. Very soon afterwards, however, during the winter immediately following of 1889-90, the complainants in some way learned, or at all events heard some rumor, to the effect that they had paid more to Warner than he had paid to the Glovers; and there were reports that came to the ears of Warner that he had taken undue advantage of the appellants in the transaction. The affair culminated in a stormy scene at the office of Messrs. Shellabarger & Wilson, where Mr. Shellabarger, Mr. Glover, Mr. Davis and Mr. Warner met in order to probe the matter and to ascertain the source of the rumors. The meeting broke up without satisfactory result. But either at the meeting or in coming away from it—for they differ as to the time, although they agree as to the fact—Mr. Warner stated to Mr. Davis that he (Warner) had undoubtedly made a profit by the transaction, as he considered that he had a right to do. And Mr. Warner claims, and there is testimony tending to show, that he had at least on one previous occasion made a similar statement to Mr. Davis.</p> <p>Here the matter seems to have rested, so far as the record shows, until September of 1893, when one of the complainants, Miss Josephine Patten, meeting her sister, Mrs. Glover, in New York, was informed by her that Mr. Warner had paid her, not $13,000, but only about $9,000 for the interest which he had purchased from her. And the complainants claim that this was the first positive information which they had, or by reasonable diligence could have had, of the true facts of the case. The next step was to file the bill of complaint in this suit, on June 2, 1894, for discovery and an account, and the recovery from Warner of the difference between the amount paid by him to the Glovers and the sum of $13,000. The defendant Warner denied all the equity of the bill.</p> <p>After replication filed and testimony taken, the cause came on for hearing; and thereon the court below dismissed the bill. From the decree of dismissal the complainants have appealed to this court.</p>

Hearing on an appeal by the intervenors in an attachment proceeding from a judgment dismissing a petition of intervention.

<p>Patents; Appellate Practice; Patentable Novelty.</p> <p>1. When all the tribunals of the Patent Office have decided adversely to an applicant for a patent, the concurrent decision will not be reversed except in a very clear case.</p> <p>2. The record in a case appealed from the Commissioner of Patents upon his refusal to grant a patent for an alleged improvement in the construction of needle cylinders for knitting machines, examined and held insufficient to show that the appellant’s device showed patentable novelty, although apparently a substantial and useful improvement.</p>

<p>Hearing on an appeal by the relator from a judgment on a verdict upon a petition for a writ of mandamus.</p> <p>Statement of the Case.</p> <p>This was an application for a mandamus by the appellant, Agustín de Yturbide, as relator, against the Metropolitan Club of the City of Washington, to compel the club to reinstate the relator to membership of the club, from which he had been expelled.</p> <p>To the rule to show cause the appellee answered, and the answer was traversed by the relator, and issue was joined. The case was tried before a jury, as provided by the statute, and a verdict was rendered in favor of the respondent. A bill of exception was taken to certain rulings of the court made in the course of the trial, and the case is brought here for review of those rulings.</p> <p>At the trial the following prayers for instruction to the jury were offered in behalf of the relator, all of which were refused, and exception duly noted:</p> <p>1. If the jury believe from the evidence that there was no specification of charges in the summons to the board sent to the relator on April 23d, 1896, their verdict should be for the relator.</p> <p>2. If the jury believe from the evidence that the relator did not have a full, fair, and impartial hearing before the board of governors at the meeting before which he appeared, then their verdict should be for the relator.</p> <p>3. If the jury believe from the evidence that the relator was forced to leave the board room on April 25th, 1896, before he had finished his justification or defense, then their verdict should be for the relator.</p> <p>4. If the jury believe from the evidence that the hearing of the relator before the board of governors on the 25th day of April, 1896, was not held by the board with all the solemnity of a trial, then their verdict should be for the relator.</p> <p>5. If the hearing of the relator before the board of governors on the 25th day of April was not held by the board with all the formality of a trial, then their verdict should be for the relator.</p> <p>6. If the jury believe from the evidence that the relator, owing to the lack of specifications in his summons to the board, was not afforded sufficient opportunity at the hearing to defend himself fully and fairly, by summoning witnesses or otherwise, then their verdict should be for the relator.</p> <p>7. If the jury believe from the evidence that the relator was led to believe by the board of governors at the hearing that he would be summoned again before the board to complete his defense, but was not so summoned by them and had no further opportunity to defend himself, then their verdict should be for the relator.</p> <p>8. If the jury believe from the evidence that the relator, at the hearing of the board on April 25th, asked to be confronted with his accusers, and that such request was refused by the board, then their verdict should be for the relator.</p> <p>9. If the jury believe from the evidence that the relator was also charged with conduct on previous occasions bringing great discredit on the club, as set out by the resolutions of April 25th, and if the jury believe from the evidence that the relator had no opportunity to defend himself against such charges, then their verdict should be for the relator.</p> <p>10. If the jury believe from the evidence that the relator was not summoned before the meeting of May 2d, at which meeting he was expelled, and was not present at said meeting or notified of the same, then their verdict should be for the relator.</p> <p>The further material facts are stated in the opinion of the court.—Reporter.</p>

<p>Hearing on an appeal by the defendant from a judgment on verdict in an action of ejectment.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal by the defendant from a judgment on verdict in an action to recover damages for death by alleged wrongful act. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the complainants from a decree dismissing a bill in a suit in equby to have a conveyance of an interest in certain real estate declared void as having been made to hinder, delay and defraud creditors. The facts are sufficiently stated in the opinion.

<p>• Hearing on an appeal from a decision of the Commissioner of Patents in an interference proceeding between an applicant and a prior patentee.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on appeals from decisions of the Commissioner of Patents in interference proceedings.</p> <p>The Court in its opinion stated the case as follows:'</p> <p>These appeals are from decisions of the Commissioner of Patents, and they present questions of interference, adjudged to exist between applications for patents for line-casting machines; two of the applications having been filed by Ottmar Mergenthaler, the senior party, and one by Wilbur S. Scudder, the junior party, as the alleged inventors. The interferences, while separately declared, are closely related to each other, and have, in all stages of the proceeding, been treated as one case. We shall so treat them on these appeals.</p> <p>These interference cases are numbered, respectively, 16,233 and 16,270; and the two separate applications by Mergenthaler stand numbered 375,632, and 391,702, the first of which was filed December 23, 1890, and the second May 5, 1891; and the one application by Scudder was filed September 14, 1892, and is No. 445,900.</p> <p>The issues, as framed by the Patent Office, on the first of the applications of Mergenthaler, as senior party, with the subsequent application of Scudder, are in two counts, and are as follows: „</p> <p>“ 1. The combination in a line-casting machine having suitable operating mechanism, of a series of matrices constructed to be assembled side by side in different orders to form the impression line, each matrix having several different characters less in number than the assortment used in the machine, the characters being independently usable.</p> <p>“2. In a line-casting machine, the combination of a series of matrices each bearing several distinct characters, and mechanism for selecting and conducting the matrices to a place of assemblage or alignment, and adjusting the matrices endwise individually in order to bring their selected characters, one on each matrix, into a common line.”</p> <p>And the issues framed on the second of the applications of Mergenthaler, with the subsequent application of Scudder, are in three counts, and are as follows :</p> <p>“ 1. The combination in a line-casting machine having suitable operating mechanism, of a series of matrices, each having several different characters less in number than the assortment used in the machine, the characters being independently usable, and a distributing mechanism by which the matrices are returned to their place of storage through a path different from that pursued in the course of composition.</p> <p>“ 2. In combination with the matrices each having a series of characters at different points in its length, and a composing mechanism for assembling said matrices with their selected characters in line, a bed or support for the line having a rib or guide to engage the matrices and prevent them from shifting endwise in relation to each other after they are assembled, and means for shifting said composed line along said rib or guide to the required point.</p> <p>“3. The combination with a series of matrix bars each having type on its edge, of a magazine having a chamber for and adapted to contain a plurality of each species of the series, means for separately delivering either species of matrix bar, a series of stops corresponding with the character on the matrices, and finger-keys, and connected mechanism whereby any desired stop can be projected into the path of any one of the released matrix bars.”</p> <p>On neither issue did Mergenthaler introduce any testimony to prove priority of invention, but rested on the dates of filing his applications, namely, December 23, 1890, and May 5, 1891. But Scudder introduced evidence to support the claim made in Iris preliminary application, and, upon the evidence introduced by him, he contends that he has successfully shown conception and disclosure to others of the subject matters of the several issues of interference as far back as February, 1889, and that he made drawings of his alleged invention, in February and November, 1889; and thus he claims to have established prioritjf of invention.</p> <p>In No. 16,233, the first case of interference, the examiner ■of interferences decided both issues in favor of Scudder; and in No. 16,270, the second case, he decided the first issue in favor of Mergenthaler, and the second and third issues in favor of Scudder; and he accordingly awarded judgment of priority of invention in favor of Mergenthaler ■on the first count in No. 16,270, and in favor of Scudder on all the other issues in both cases of interference.</p> <p>On appeal to the board of examiners-in-chief, that tribunal decided all the issues of interference, in both cases, in favor of Mergenthaler, thereby reversing the judgment of the examiner of interferences, so far as the latter had decided in favor of Scudder, and held that Mergenthaler was entitled to priority of invention upon all the issues of interference in both cases. That ruling was appealed from, and the cases were taken before the Commissioner of Patents in person, and the latter reversed in toto the decision of the examiners-in-chief, and awarded priority in favor of Scudder upon all the issues; and it is from that decision that these appeals are taken to this court.</p>

Hearing on an appeal from a decision of the Comrnissioner of Patents in an interference proceeding between rival applicants for a patent for improvements in car couplers.

Hearing on an appeal by the plaintiffs from a judgment on a verdict directed by the court in an action to recover damages for personal injuries. Held: owned, or operated within said State in conformity with the provisions of the general law of the State.” I was the general solicitor of the Newport News and Mississippi Valley Company.

<p>Hearing on an appeal by a defendant indicted and convicted of violating the game laws.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by the petitioner from an .order «quashing a writ of certiorari to a justice of the peace.</p> <p>The Court in its opinion stated the case as follows :</p> <p>This is an appeal from an order of the Supreme Court of the District of Columbia, quashing a writ of certiorari issued from that court to a justice of the peace to procure the' vacating of a judgment which he had entered pursuant to the verdict of a jury.</p> <p>Suit was instituted before Charles F. Scott, a justice of the peace, by the appellee, John C. Hennings, to recover damages to the amount of three hundred dollars for alleged personal injuries claimed to have been sustained by him through the negligence of the appellants. The injuries were stated to have occurred in the course of the construction of a building belonging to the appellant, the Capital Traction Company, in consequence of a defective scaffold, the other appellant, Frank N. Carver, being the contractor for the construction of the building. On the day specified in the summons served upon them, both of the appellants, who were jointly made defendants in the suit, appeared before the justice, and procured the removal of the cause, in .accordance with the provisions of the statute authorizing such removal, to another justice, who was Lewis I. O’Neal, the appellee.</p> <p>It is alleged by the appellants that on the removal of the «cause to O’Neal, they requested that justice to require the plaintiff in the cause to render to them a bill of particulars, and that he refused the request. They also say that thereupon the. plaintiff requested a trial by jury, and' that the justice, before any issue joined between the parties, caused a writ of venire to be issued for the summoning of a jury. The cause was'continued for eight days. In the meantime writs of subpoena for the attendance of witnesses were issued at the instance3of both parties; and on the day assigned for the trial, both parties appeared by counsel, announced themselves ready, and the jury being sworn, proceeded to examine and cross-examine witnesses.</p> <p>The question was raised at the trial, whether the Traction Company was liable, inasmuch as it was claimed that the other defendant, Carver, was an independent contractor, and that he only, if any one, was liable. It appears that there was testimony on both sides of the question.</p> <p>Instructions to the jury were requested by both parties; but it is not agreed between them what instructions were actually given. The appellants allege, in their petition subsequently filed for the writ of certiorari, that the justice “stated to the jury that the subject was so complicated and involved such intricate propositions of law that he would not instruct them at all upon that branch of the case, but would submit the question of law to the jury to decide;” and that the appellants objected or excepted to this course. But the justice in his return to the writ states “that being of the opinion that the authorities read by Mr. Birney (who was attorney for the plaintiff) wore binding and covered the case, he told the jury that the law was as stated by the Supreme Court of the United States in the case they heard read by Mr. Birney, and that he would submit the facts to them without further instruction.” And he adds that he did not state to the jury that he would submit the law to them, and that he did not do so.</p> <p>The jury rendered a verdict for the plaintiff for the sum of $200 and costs, upon which the justice entered judgment.</p> <p>Before the issue of any execution upon the judgment, the defendants in the cause filed their petition in the Supreme Court of the District of Columbia, for a writ of certiorari to require the justice to vacate the judgment, on account of the alleged irregularities that had occurred in the cause, and on account of the alleged unconstitutionality of the statute of February 19, 1895, under which he had proceeded in the cause. . The jhstice of the peace made return to the writ. And from the petition and return the facts here stated appear. g</p> <p>Upon motion, the writ was quashed; and from the order quashing it the present appeal has been prosecuted by the petilioners.</p>

Hearing on an appeal by the defendants from a decree in favor of the complainants in a suit for the construction of a deed and for a partition of certain real estate. The Court in its opinion stated the case as follows: The question in this case is whether a certain deed oí' conveyance therein set forth is to be construed as creating a joint tenancy or a tenancy in common between certain grantees therein named.

Hearing oh an appeal by the complainants from a decree dismissing a bill for an accounting.

<p>Hearing on an appeal by the defendant from a judgment under the 73d rule of the Supreme Court of the District of Columbia, for want of a sufficient affidavit of ■defence.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by the defendant from that part of a decree in a divorce suit, rélating to the custody of a ’ child of the parties.</p>

Hearing on an appeal by the defendant from a judgment on verdict in an action to recover damages for personal injuries. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the District of Columbia from a judgment on verdict in an action of trespass quxre clausum fregit. The facts are sufficiently stated in the opinion.

<p>Hearing on an appeal from an interlocutory order (leave to appeal having been specially allowed) sustaining a demurrer to a plea of res judicata in an action of ejectment.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is an appeal from an interlocutory order of the Supreme Court of the District, in an action of ejectment, allowed by order of this court under the authority conferred by Section 7 of the act establishing the Court of Appeals and defining its jurisdiction.</p> <p>The appellee, Mary E. Sweeny, as plaintiff below, brought the suit to recover certain parcels of land in the city of Washington, claiming title thereto as heir-at-law of Michael Crane, deceased. '</p> <p>The defendants, R. Ross Perry and The National Safe Deposit, Savings and Trust Company of the District of Columbia, entered a special plea in bar alleging the following in substance: That Michael Crane died leaving a will, duly executed, wherein, a'fter appointing defendants his executors, he devised to them, in fee simple, the lands sued for. That, the will was by them regularly offered for probate in the Supreme Court holding a special term for Orphans’ Court business. That plaintiff filed a caveat therein denying the execution of the said will, and charging that the testator was of unsound mind, and had been unduly influenced, and so forth. That plaintiff then prayed the said court to direct issues, embodying the said grounds of contest, to be sent to the special term holding the sessions of the Circuit Court for trial by a jury. That the issues were so transmitted, and the trial had thereof resulted in a verdict, upon each one, in favor of the defendants, which having been duly certified to the special term holding the Orphans’ Court, that court entered a decree admitting the will to probate in solemn form. That said decree remains in full force, and is conclusive of the validity of the will and the title of defendants thereunder.</p> <p>To this plea the court sustained the plaintiff’s demurrer; .and the appeal is from that order.</p>

<p>LIearing on an appeal by the plaintiffs from a judgment on a verdict directed by the court in an action on a policy of insurance.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This action was brought upon a policy of life insurance, issued by the defendant, the Knights Templars and Masons’ Life Indemnity Company, to Frank Schwarz, on the 13th of June, 1892, for $5,000. Schwarz, the holder of the policy, was found dead on the morning of the 30th of December, 1892; and up to the time of his death he had paid all the assessments called for, amounting to the sum of $19.50. The wife of the deceased was the original beneficiary in the policy of insurance, but the assured, on the 15th of October, 1892, procured the policy to be transferred to his personal representatives, but for what reason does not appear. The present action is brought by the executors ■of the deceased, and the recovery was for the $19.50 only, the amount of the assessments paid.</p> <p>The defence to the action was that the deceased, Schwarz, ■came to his death by self-destruction or suicide, and therefore, under a condition of the policy, the plaintiffs were not «entitled to recover more than the $19.50.</p> <p>Among the conditions or stipulations contained in the policy is the following:</p> <p>“In case of the self-destruction of the holder of this policy, whether voluntary or involuntary, sane or insane, this policy shall become null and void and the widow or heirs or beneficiaries of said member shall have no claim for benefits on this company. Provided that in the case of ■such self-destruction or suicide of the holder of this policy, then this company will pay to his widow or heirs or devisees only such an amount on this policy as the member shall have paid to this company on this policy in assessments on the same, without interest. Upon violation of any of- the foregoing conditions this policy shall be null and void, without action on the part of the company or notice to the insured or beneficiary, and all payments made hereon and all accrued surplus or profits shall be forfeited to the company, except as above provided.”</p> <p>There is no controversy whatever in regard to the facts of ■the case, the question being whether the facts shown clearly proved that the assured committed suicide. The plaintiffs, upon the proof of death of the assured, and the policy held by him, and that he had paid all assessments called for by the defendant, rested their case. And the defendant then gave evidence of the facts and circumstances that tended to show how the assured came to his death. These facts and circumstances are very clearly and concisely stated in the bill of exception, and we shall repeat them as there stated:</p> <p>“Thereupon the defendant, to maintain the issues on its part joined, gave evidence tending to prove that the dead body of the insured, Frank Schwarz, was found by a police officer of the city of Washington on its back, feet being toward the east, in the early morning of December 30, 1892, rigid and the clothing covered with frost, in an open field just beyond the boundary of the city of Washington, District of Columbia; that on the left hand there was a kid glove, which hand held in its grasp the fellow glove, and that the right hand was ungloved; that a revolver, from which one shot had been fired, lay upon the ground about two feet from the right hand; that his watch and chain, pocket-book, and other valuable articles were found undisturbed upon the body of the deceased; that a pistol shot had penetrated his left breast just above the heart, which caused his death; that the body was clothed in underclothes; a suit of ordinary outer clothing, and an overcoat; that there was no sign of scorching or burning on the clothing; that there were no marks of footprints on the ground near or nearby the body which would indicate that there had been a struggle or altercation. The body was taken to the morgue in the city of Washington by the police of said city, and it was admitted by the plaintiffs to be the body of Frank Schwarz. Further, it was admitted by the stipulation of the parties that the deceased, on the 29th day of December, 1892, was indebted to the Anheuser-Busch Brewing Company in the several sums mentioned in a proof of debt filed by said company in the office of the register of wills of this district; that said proof showed that the deceased at various times from February, 1892, to December 31, 1892, had collected as agent of said company various sums on accounts and notes of that company for which he had not accounted, and which amounted in the aggregate, with interest, at the time of his death to the suxn of $2,843.93.</p> <p>“Further, the defendant gave evidence from the policy that on the 15th day of October, 1892, the deceased had transfex’red the policy in question from his wife, who was the original beneficiary thei'eof, to his personal representative. Further’, the defendant gave in evidence a letter which it was admitted in the stipulation Schwarz on December 29, 1892, wrote, signed and transmitted to Robert T. Heiston, one of the plaintiffs, a copy of which letter is as follows:</p> <p>“Dec. 29, 1892.</p> <p>“ My Dear Robert: When this reaches you your friend will be among the great army of the other world. I find that I cannot exist any more. Your check to-moi’row and some other obligations ax’e all piling up, and I cannot meet them. There are also some other matters which must be adjusted and which I ask that you arrange as best you can. As to Anheuser-Busch matter-, Vinton can give you information about them. I know there is enough property, etc., here to cover my obligations, and were I as good a borrower as I am or have been a lender things might go different. Bob, dear fellow, do for me what I would have done for you, and when some one says an unkind word I know you will say a kind one instead. ' All the papers herewith are arranged so that you can use them with effect towards liquidating my indebtedness to you, which I assui’e you is my sole object. Have me buried quickly and quietly and forget me afterwards. I have imposed the disagreeable task upon you and Br. Somerville to act as my executors. Good-bye. “ Frank.</p> <p>“ Let Walter sell the horses and you use the money to settle up matters.”</p> <p>It was further admitted that said Hieston received the letter just recited, together with other papers, through the mail, on the morning of December 30, 1892 ; and thereupon the evidence was closed, and no further or other evidence was offered b3r either side.</p> <p>Upon the foregoing evidence the court, at the instance of the defendant, instructed the jury that their verdict should be for the defendant, in respect to the plea or defence of suicide of the assured, but, by the terms of the policy, the plaintiffs were entitled to recover $19.50, without interest, that being the amount of the assessments paid by the assured.</p>

Hearing on an appeal by a plaintiff in attacbment from a judgment entered upon a verdict directed by the court in favor of a garnishee. The Court in its opinion stated the case as follows: This is an appeal from a judgment rendered as issues arising out of a writ of garnishment.

Hearing on an appeal by the complainant from a decree dismissing a bill for specific performance. The Court in its opinion stated the case as follows: This is a suit in equity to enforce specific performance of an alleged contract for the conveyance of certain real estate in the city of Washington.

<p>Hearing on an appeal by the defendants from a judgment on verdict in an action of assumpsit by a real estate broker to recover commissions.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is an action in assumpsit instituted by the appellee, Charles H. Pickling, a real estate broker, to recover a balance alleged to be due to him for money advanced and services rendered in and about making sales and finding purchasers for certain parcels of land in a place known as “Cooke Parle,” in that part of the city of Washington formerly known as Georgetown. The declaration, filed on May 5, 1896, alleges that this property was owned by a syndicate or association consisting of the appellants, who, acting by and through the appellant Samuel Ross, as their manager, and the appellant Charles C. Duncanson as their treasurer, employed the appellee as their agent to make such sales and to find such purchasers. The pleas interposed by the defendants, the appellants here, were non assumpsit, payment, and the statute of limitations.</p> <p>At the trial the plaintiff gave evidence tending to show that, in the year 1891, he had been employed by the Cooke Park syndicate, through Ross and Duncanson, to sell lands in the Park; that he was to have entire charge of making sales, and was to receive a commission of five per centum on the amount of sales for his. compensation ; that the terms of sale were to be either all cash, or one-fourth cash and the residue on time specified ; or in the event of a purchaser agreeing to build upon the land, only a bond and deed of trust were required, without any cash, the syndicate agreeing to furnish the cash under the deed of trust for the purpose of the building; that, in the latter event, a sale with building privileges, as it was commonly called by the parties, the purchasers were to submit to the plaintiff plans and specifications for the proposed building, and a bond to be prepared by a title company, with the names of the bondsmen or sureties thereon, conditioned that the purchaser would perform the contract; that these papers were thereupon to be submitted to the appellant Ross, and, if they were approved by him, the transaction would be closed.</p> <p>The evidence on his behalf further tended to show that he sold a large number of lots for one-fourth cash and the residue in instalments; and that there were two sales, with the building privileges so-called, one of eighteen lots to a Mr. Simmons, and one of ten lots to C. J. and J. H. Hand-back. These transactions, or some of them, extended over the period between September 14,1892, and March 16,1893'. At least, that is the period covered by such portion of them as is referred to in the plaintiff’s bill of particulars filed with his declaration, in the shape of an itemized statement of account between himself and the defendants, which he testified to contain a correct statement of such account.</p> <p>With reference to the statute of limitations, the testimony in the case, and the gist of the controversy, it seems to be proper to divide this statement of account into two, or perhaps three, parts. The first of these parts would end with March 16, 1893, on which day a payment of $300.50, if the figures are correct, was made to the plaintiff by Duncanson, treasurer, on general account, which item is the last credit to the defendants in the account, and which apparently then left due to the plaintiff the sum of $136.98.</p> <p>The second part of the account includes two items of charge by the plaintiff against the defendants, aggregating $25 under dates of March 20, 1893, and April 1, 1893. These two parts of the account beyond question accrued more than three years before the institution of the suit, and .are therefore barred by the statute of limitations, unless the whole account can be considered as one account with the element of mutuality running through it all, so as to make the running of the statute to begin from the date of the last item. Otherwise than by the interposition of the bar of the statute the items of these two parts do not seem to be controverted between the parties.</p> <p>The main controversy is over what we designate as the third part of the account, containing three items of charge by the plaintiff against the defendants, under dates of April 1, April 17 and May 9, 1.893, which refer to two transactions that are claimed to have extended themselves and to have been consummated within the period of limitations. These transactions, so far as they are elucidated by the testimony in the record, were these.</p> <p>On September 14, 1892, the plaintiff sold, or contracted to sell, lot 116 in the Park to his brother, Jeremiah Pickling; and received from him a deposit of $100, the terms of the contract to be complied with within ninety days. This sale was approved on September 17, 1892," by Ross. On April 9, 1893, Jeremiah Pickling, who seems to have been merely an intermediary, and who was not the only one, it seems, interposed merely to get options and show briskness in sales, assigned his purchase to one Ballantine; and on May 9, 1893, the sale was closed with Ballantine by the syndicate. The question with regard to this is, whether the plaintiff was entitled to his commissions on the nominal and unconsummated sale of September 14, 1892, in which event it is claimed that the statute of limitations would apply, or whether his commissions really became due on the consummated sale to Ballantine on May 9,1893, which would bring them within the period of limitation.</p> <p>The second transaction is of an alleged sale by the plaintiff to the Handbacks of lots 57 to 63, both inclusive, with the building privileges; and most of the controversy has expended itself upon this transaction. In reference to it the plaintiff’s testimony tended to show that, on November 20, 1892, the plaintiff, in pursuance of his employment by the defendants, as their agent, made a contract, approved by the defendant Ross, to sell to a second syndicate or association, known as Cooke Park Syndicate No. 2, of which the plaintiff himself was a member, seventeen lots, in the Park, in which were included the seven lots, Nos. 57 to ■63, both inclusive, here in question; that this second syndicate, like Jeremiah Fickling in the other case, was only a party interposed for the purpose of making a real sale ; that it was authorized by the contract to sell or resell the seventeen lots specified, with building privileges, within six months thereafter; that, upon such sale or resale, the defendants were to receive a certain amount specified in the contract, and syndicate No. 2 was to receive the difference between that amount and the price which the new and real purchasers would pay; that thereupon ten of the seventeen lots were sold, with the building privileges, to the Hand-backs, already mentioned; that, in making the sale, the plaintiff acted for syndicate No. 2, and in the completion of the contracts for the defendants (syndicate No. 1); that the contract with the Handbacks was approved by the defendant Ross; that, in pursuance of it, the Handbacks entered upon its execution, and built houses on the ten lots; that, during the progress of such construction, the plaintiff, on April 1, 1893, made another similar contract of sale, with building privileges, with the Handbacks for the other seven lots, Nos. 57 to 63, both inclusive, those here in controversy; that, in this part of the transaction, he acted, as in the preceding part, both for syndicate No. 2 and syndicate No. 1; that he submitted the contract of sale, and subsequently .also the names of the bondsmen and the plans and specifications, to the defendant Ross; that Ross verbally approved them all; that thereupon he had the usual papers prepared by the title company; and that, on May 13, 1893, he took these papers to the defendant Duncanson, and not finding him in his office, left the papers there for him. Thus far there seems to be no great variance between the testimony of the plaintiff and that of the defendants. But at this point the variance begins.</p> <p>The plaintiff further proceeded to testify that, in December of 1892, the defendants gave directions to the plaintiff, through Mr. Duncanson, to sell no more lots with the building privileges, but that those seven lots, Nos. 57 to 63, were specially exempted from this withdrawal; that, on May 14, 1893, and repeatedly thereafter, the plaintiff had interviews with Duncanson about the closing of the transaction; that some time in July of 1893 the defendant Duncanson refused to execute the contract with the Handbacks, on the ground that the defendants did not at the time have money to advance for building purposes; and that the Handbacks were then, and had always been, ready, able and willing to execute the contract, on their part, and were desirous to do so.</p> <p>On the other hand, the testimony on behalf of the defendants tended to show that the withdrawal of lots from sale, with building privileges, in December, 1892, was without any reservation of the lots here in controversy; and that Duncansou’s refusal to complete the contract with the Hand-backs was not for want of funds for building purposes, but because the time for closing the sale had expired. This statement is controverted by the plaintiff.</p> <p>The defendants also offered to show at the trial, by the defendant Ross testifying as a witness, that the Handbacks were financially embarrassed, and were in fact insolvent at the time; and that he (Ross) for that reason would not have approved of a sole of these lots to them, with building privileges, even if the arrangement continued for selling with building privileges. But the trial court excluded this testimony; and the exclusion is assigned as error.</p> <p>Instructions to the jury, seven in number, were requested on behalf of the defendants; and three assignments of error are here made upon the rulings of the trial court in regard to them. Two of these have reference to the application of the statute of limitations; and one to the terms of the contract made by the plaintiff with the Handbacks on April 1, 1893.</p> <p>The verdict and judgment having been for the plaintiff for the whole amount claimed by him ($687.09), the defendants have brought the cause here by appeal.</p>

<p>In error, to tlie Police Court of the District of Columbia.</p> <p>The facts are sufficiently in the opinion.</p>

<p>In error to the Police Court of the District of Columbia.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>The original bill charged that the said Marmion had received, as the complainant’s trustee, all her estate, consisting of her distributive share in the estate of her mother and the proceeds of sale of her interest in certain real estate in the city of Washington, and that he had failed to give her any satisfactory account of the investments thereof or of the profits therefrom, but that on the 2d day of May, 1887, he executed a deed of trust to Joseph G. McClellan conveying lot three (3) and a part of lot four (4), in square one hundred and twenty-six (126), in the city of Washington, known as premises 1719 I street, in which it is recited that he then held in trust for the sole use and benefit of the complainant the sum of thirty-eight thousand dollars in three per cent. United States Government bonds, to secure the return whereof said deed was given, and delivered said deed to complainant together with a note bearing the same date made by the said Marmion to her order for sixty-seven hundred dollars, payable one year after date with interest at three per centum per annum, with the request that she should not record said deed, but that she would keep the transaction secret, with which request she complied for a time, until she learned that on the 4th day of December, 1888, there wras recorded in the Land Records of the said District a deed of trust from said Marmion for the same property, to William W. Boarman, trustee, to secure George C. Boarman the sum of thirty-eight thousand dollars, whereupon, on the 10th day of December, 1888, she caused the said deed of trust to the said- McClellan to be recorded in the said Land Records, and the bill alleged that the deed of trust to Boarman was without consideration and void, and prayed that said Marmion should be required to account for said moneys, that the amount justly due from him to her should be ascertained, and that the deed of trust to McClellan should be declared a security for the payment thereof, and that the deed of trust to Boarman should be declared void as to her.</p> <p>Having answered the original bill, the said Marmion filed his cross-bill in the cause against the said Walker and Joseph G. McClellan, trustee, alleging that at the time of the execution of the deed of trust by him to said McClellan for the apparent purpose of securing the said Walker, he was not indebted to her in any sum, but that upon a proper settlement of the accounts between them, she would have been indebted to him; that the said deed of trust had been recorded in violation of an understanding between him and Miss Walker at the time it was delivered to her, and prayed that the accounts between them should be settled, and the said deed of trust should be cancelled and delivered up.</p> <p>William W. Boarman, trustee, and George C. Boarman,. answered the original bill admitting that the supposed Indebtedness apparently secured by the deed of trust to W. W. Boarman, was fictitious, the said Geo. C. Boarman answering that he knew nothing of the deed or note therein mentioned, and did not know of their existence until several days after the deed w7as recorded, and that he had advanced said Marmion no money, and claimed no right or benefit under said deed.</p> <p>After the revival of the case by agreement in the name of John McClellan, executor of Elizabeth A. Walker, he filed an answer denying the allegations of the cross-bill which were inconsistent with the allegations of the original bill. Issue was joined upon the several answers, and evidence was taken by both the principal parties litigant.</p> <p>That the said Marmion, on the 1st day of July, 1880, married Caroline W. McClellan, a niece of the said Elizabeth A. AValker, and granddaughter of one Caroline H. Walker, the said Elizabeth being a daughter of the last named; that at the time of said marriage the three ladies mentioned lived together, and had for some time prior thereto, in house No. 1722 I street in this city; that the said Caroline H. AValker died on the 5th day of July, 1880, and the defendant and wife in the latter part of that month visited Capon Springs, and the said Elizabeth A. AValker accompanied them as their guest, and in September following she went to live with them in the residence No. 1722 I street, of which she wrns the owner of an undivided one-fourth interest, and Mrs. Marmion of an undivided one-twelfth interest, the remaining two-thirds being owned by the other heirs of AVm. Me. AValker; that the said Elizabeth A. AValker continued to reside with said Marmion and live in his family from that time until about December, 1888, upon what terms or particular arrangement does not satisfactorily appear, and is not material to the decision of this case; that she was infirm and quite an invalid when she commenced to live with Marmion and gradually and continually grew more infirm; that the said Marmion, who is a physician, claims to have treated her professionally during all this time; that in February, 1881, the said Marmion received from her $5,000, being her distributive share of her mother’s estate, to invest and manage for her, the greater part of which he did invest in United States Government bonds and deposited the residue to her credit in bank, the bonds being registered in his name and remaining in his possession; that in June, 1881, the said Marmion being informed by John McClellan, the agent of the owners of 1722 I street, except Mrs. Marmion and Miss Walker, that.Calderon Carlisle had offered to purchase the two-thirds interest in the property at the rate of $9,000 for the whole, immediately offered to give $100 more, which offer being reported by McClellan to Mr. Carlisle, the latter immediately offered $9,200, which McClellan accepted without further consultation with Marmion, and on the 21st day of June, 1881, a conveyance was made to Mrs. Carlisle of the two-thirds interest represented by McClellan, at the rate of $9,200 for the whole; that on the 22d day of June, 1881, Marmion wrote Carlisle as follows:</p> <p>“Mr. Carlisle.</p> <p>“Dear Sir: I understand from Jack that he has sold you the two-thirds interest in this house which he represented. Miss Walker tells me that Jack said ‘you would,’ he thought, ‘sell your interest to me.’ If such be the case, I should like to purchase it, and my only reason for writing at this time is that I want to build at once. Will you kindly let me know your price, provided you are willing to sell ?</p> <p>“Very respect., W. V. Marmion. •</p> <p>That on the 25th day of June, 1881, the said Marmion and his wife conveyed to the said Elizabeth A. Walker the one-twelfth interest of Mrs. Marmion in said real estate, the consideration recited in the deed being $766.66, and on the same day Miss Walker conveyed the interest thus vested in her and her own one-fourth interest in said real estate to said Marmion, the consideration mentioned in said last-mentioned conveyance being $3,066.66, which was at the rate of $9,200 for the whole property, and $2,300 for the interest of Miss Walker, but in fact no money passed between the parties to said conveyance at the time thereof; that some time subsequently the said Marmion invested the greater part of the amount of $2,300 in'United States bonds, registered in his own name and retained in his possession, and deposited the balance of the $2,300 to the credit of Miss Walker with her bankers; that on the 6th day of September, 1881, Marmion conveyed to Mrs. Carlisle the one-third interest in 1722 I street vested in him by virtue of the deed of Miss Walker to him for the consideration of $4,366, which was at the rate of $13,098 for the whole property and $3,274.50 for the one-fourth interest of Miss Walker; that the bonds purchased by Marmion "with the $5,000 and $2,300 were of several issues and bore interest at different rates, the investment being changed from time to time to other issues, as some of the bonds were called in by the Covernment, until finally all of the investment was in 3 per centum bonds, and the face value thereof was $6,700, and some timein the year 1885 (the exactdate does not appear in the evidence) Marmion gave Miss Walker his note for $6,700; that he collected the interest on these bonds from the Government, it being paid by checks to his order, and paid it over to Miss Walker by his own check to her order, or to bearer deposited in her bank account; that these last mentioned 3 per centum bonds were called in from time to time, the last being called in in 1887 or 1888, but when so called in no part of the principal was paid to Miss Walker, but Marmion continued to pay her the interest, and on the 2d day of May, 1887, he gave her his note in the following language:</p> <p>“No. four. W. V. Marmion.</p> <p>“Due--.</p> <p>And on the same day he executed a deed of trust to Joseph G. McClellan, reciting therein that he held in trust for the sole use and benefit of the said Elizabeth A. Walker the sum of thirty-eight thousand dollars in three per centum United States Government bonds, and that to secure to her the return of said bonds and the payment of the interest thereon quarterly he had executed his four promissory notes, two for the sum of ten thousand dollars each, one for eleven thousand three hundred dollars, and one for six thousand seven hundred dollars, each bearing interest at the rate of three per centum per annum payable quarterly, and conveying to said trustee to secure the payment of said notes the real estate known as 1719 I street in the city of Washington, and delivered said note for $6,700 and the deed of trust to her, but did not deliver to her the other notes, with the request that said deed bo not recorded.</p> <p>“ William Y. Marmion has held under his name, but in trust for me, six thousand and seven hundred dollars in U. S. 3 per cent, bonds for the past six years, upon which the interest has been duly paid by him. In May, 1888, he gave me his note at twelve months for six thousand and seven hundred dollars to secure the payment to me of this, trust fund. Up to this date the said William V. Marmion has, at various times, paid me sums upon said note, which in the aggregate amount to fourteen hundred dollars, the receipt whereof is hereby duly acknowledged, and I hereby declare that this trust fund as aforesaid, less fourteen hundred dollars which have been paid upon it as above mentioned, is the sole and only indebtedness of the said William V. Marmion to me; or, in other words, that at this date that he owes me a balance of five thousand three hundred dollars; and I hereby for value received, extend the time for the payment of said balance upon note from May 2d* 1888, to November 2d, 1889.</p> <p>“(Signed) E. A. Walker. [Seal.]</p> <p>In the latter part of the year 1888 differences arose between Marmion and Miss Walker, and she left his house, and on the 4th day of December a deed of trust on premises 1719 I street from Marmion to W. W. Boarman, trustee, to secure Geo. C. Boarman $38,000, was recorded, and on the 10th day of December, 1888, Miss Walker caused the deed of trust to McClellan to be recorded.</p> <p>On the 2d day of April, 1895, after a hearing upon the pleadings and evidence, the court below decreed the deed of trust from Marmion to Boarman to be void, and that said Marmion was trustee for said Walker, and referred the case to the auditor with instructions to state the account of the said trustee in relation to the funds “of said Walker which had come to his hands, and in said accounting to charge said trustee with the sum of $3,274.50, the amount received by him from Mrs. Carlisle for the interest of said Walker in the real estate known as 1722 I street, instead of $2,300, for which sum Marmion claimed be had purchased the interest of Miss Walker.</p> <p>In stating the account the auditor treated the giving of the note in 1885, and the renewal thereof on the 2d day of May, 1887, and the giving of the deed of trust to secure it on the same day, and the preparation by him and taking from Miss Walker of the paper of the 27th of January, 1888, stating the amount still due on said note and extending the time for payment of the balance, as the equivalent of an account stated, and allowed Marmion credit for $1,400 recited in that paper as having been paid by him, and $1,700 in addition, which he had paid on that note afLer that date, and the sum of $450 for nine month’s board of Miss Walker and maid after January 27,1888, and rejected all of the demand of Marmion for board prior to that date, and all of his claim for medical attention and services. The auditor also charged Marmion in said account with $974.50, the difference between what he received from Miss Walker’s interest in the house Ho. 1722 I street and the $2,300, with interest thereon from the 7th day of July, 1881.</p>

<p>Hearing oil an appeal from an order quashing a writ of certiorari.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by the United States from an order quashing a writ of certiorari.</p> <p>The Court in its opinion stated the ease as follows:</p> <p>This is an appeal by the United States from an order of the Supremo Court of the District of Columbia quashing a writ of certiorari.</p> <p>The petition for the writ, which was filed on October 5, 1897, recites that one Beckett, on September 3, 1897, in the Police Court of the District of Columbia, was convicted of the crime of larceny, and was sentenced by that court to pay a fine of $15 and in default of the payment of such fine to be imprisoned in jail for sixty days; that Beckett did not pay the fine and was committed to jail, and has not been in jail for sixty days; that the defendant, Samuel C. Mills, attempts to exercise the office of a United States Commissioner under supposed authority of an appointment by the Supreme Court of the District of Columbia; that among other duties which he attempts to perform is the discharge of poor convicts under Sections 1042 and 5296 of the Devised Statutes of the United States; that, on October 4,1897, Beckett made application to the respondent in conformity with said sections of the Devised Statutes, and the respondent was about to hear the said application and to act thereon as though he (Mills) was a United States Commissioner duly authorized, and as though Beckett came within the said sections of the Devised Statutes; and the petition thereupon avers that the respondent has no lawful authority to act as such commissioner, he not having been appointed such by lawful authority; that he had no jurisdiction in the premises, as Beckett had been imprisoned by lawful authority for a specified time, and is not detained merely for the nonpayment of a. fine; that the sentence of Beckett was imposed by a court,, whose fines, imprisonments and sentences do not come within the sections of the Revised Statutes aforesaid; and that the acts and the attempted acts of the respondent are null and void, and that he had no authority to order Beckett’s production before him, or to permit him to file his application, or to proceed to a hearing upon the same.</p> <p>The respondent Mills made return to the writ; and the-return shows the facts stated in the petition to be true, leaving the questions of law raised by it to be determined by the-court.</p> <p>Upon the return,- motion was made to quash the writ, and the motion prevailed. The court made an order to quash the writ, and to remand the papers to the commissioner (the-respondent), who was directed to proceed in the matter according to law. .</p> <p>From this order the United States have appealed to this court.</p>

<p>Constitutional Law ; Police Powers ; Gift Enterprises.</p> <p>1. Congress has the same police powers in the District of Columbia as the State legislatures have within their several jurisdictions.</p> <p>2. It is only where a statute purporting to exercise police powers has no real or substantial relation to the protection of the public health, safety, peace and morals, or is a palpable invasion of the rights secured by the fundamental law, that the courts will declare it void.</p> <p>3. An enterprise by which a trading stamp company distributes among merchant subscribers so-called trading stamps for distribution to customers according to the amounts of their purchases, which stamps when collected in sufficient numbers entitle the holders to premiums supplied by the company, is within the meaning of the act of Congress of February 17, 1873 (R. S. D. O., Secs. 1176 and 1177), prohibiting gift enterprises in the District of Columbia.</p>

Hearing on an appeal by the District of Columbia from a judgment on verdict in an action to recover damages for personal injuries. The facts are sufficiently stated in the opinion.

Hearing on ail appeal by the defendants from a judgment on verdict in an action to recover damages for personal injuries. The facts are sufficiently stated in the opinion:

<p>Hearing on an appeal by the respondents to an intervening petition in an equity cause, from an order vacating a previous order.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Application for a tvrit of mandamus to compel the lower court to enter judgment on the mandate of this court.</p>

Hearing on an appeal by the defendant from a decree establishing a trust and ordering payment of a sum of money in execution thereof. The Court in its opinion stated the case as follows: This is an appeal from a decree establishing a trust and ordering payment of the sum of $1,000, with interest, from July 1, 1883, in execution thereof. The complainant, Walter Gwynn, who attained his majority August 21, 1891, filed the bill against his aunt, Mary Gwynn, February 23, 1894.

<p>Hearing on an appeal from the Commissioner of Patents in an interference proceeding.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an apppeal from a decision of the Commissioner of Patents refusing an application for a patent.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal from a decision of the Commissioner of Patents in an interference proceeding.</p> <p>The facts are sufficiently stated in the opinion.</p>