Volume 12 — Appeals, District of Columbia

Hearing on an appeal by the defendant surety from a judgment on verdict, in an action on an appeal bond. The Court in its opinion stated the case as follows: This is an action to recover damages upon an appeal bond given in the appeal case of La Tourette v. Fletcher, 6 App. D. O. 324. That was a suit in equity begun originally by Fletcher, a judgment creditor of La Tourette, against the latter, and one Celestia A. Smith, and Thos.

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

<p>Destruction op Public Property; Aqueduct Bridge, Injury to; Malice, Presumption of.</p> <p>1. In an information presented in the Police Court by the District of Columbia charging the defendant with violating the act of Congress of July 29, 1892, for the preservation of the public peace and protection of public property in the District, by tearing up of the foot-walk of Aqueduct bridge, it is not necessary to allege that the act was done without the consent of the District Commissioners.</p> <p>2. Under the District of Columbia appropriation act of Congress of March 3,1893, all of the bridges of the District, except the Aqueduct bridge across Rock Creek, are under the control of the Commissioners of the District, and the Secretary of War has no right to grant permission to a street railway company to lay tracks on the Aqueduct bridge across the Potomac river.</p> <p>3. The fact that a person charged with a violation of the act of Congress of July 29, 1892, by tearing up a foot-walk of the Aqueduct bridge, acted in obedience to the orders of the street railway company employing him, and under a belief that such employer had a license to use the bridge for railway purposes, is no defence.</p>

<p>Hearing on an appeal by the defendants from a decree in a suit by simple contract creditors to have certain confessions of judgment declared a voluntary assignment with preferences.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is an appeal from a decree sustaining a creditors’ bill filed by simple contract creditors, and declaring certain confessions of judgment made by the debtor to constitute a voluntary assignment for the benefit of all creditors. The bill was filed by Dodge Bros, for themselves and such other creditors as might intervene, against Abraham Strasburger, the debtor, and Rich & Co., Steinem Bros., Cohen-Adler Shoe Co., and the Morrow Shoe Co., with whom were joined Daniel M. Ransdell, the marshal of the District.</p> <p>It was alleged that the defendant Strasburger was insolvent on the 5th day of July, 1893, and indebted to sundry persons in the sum of about $35,000. That he contracted much of said indebtedness with intent to defraud, and has secreted some goods and sold others at less than cost. That on said date he conspired with the several defendants, claiming to be creditors, to give them certain preferences, and to defraud plaintiffs and other creditors. That instead' of making a formal assignment, “ knowing that if he executed such a formal assignment he could not give preference to one creditor over another,” he conspired with his codefendants to accomplish their preference by confessing judgments in their favor. That in. so doing he confessed judgment as follows, on July 5, 1893 : Steinem Bros. $1,000? Rich & Co., $3,306.50; Cohen-Adler Shoe Co., $4,769.61-That on the same day writs of fieri facias were issued upon said judgments with the knowledge and consent of said Strasburger, and were by the said Ransdell, marshal as aforesaid, levied on all of the visible goods, property and assets of said Strasburger, consisting of his stock in trade, in two stores kept by him in the city of Washington. That said assets have been appraised as of the value of $11,700 by said marshal, and have been advertised for sale by him under said writs. That the Morrow Shoe Co., defendant? filed suit against said Strasburger nn July 10, 1893, and issued an attachment therein, which was given to the said marshal for execution upon the goods in his hands. That the said confessions of judgment “are in effect and reality a voluntary assignment by said Strasburger for the benefit of his creditors, and should be so construed and declared,’’ and said preferences should be declared void and the property distributed pro rata among all creditors, etc.</p> <p>The prayers were: (1) That the marshal be restrained from selling the goods; (2) That a receiver be appointed; (3) That the proceedings be decreed to constitute a voluntary assignment for the benefit of all creditors; (4) That the judgments so confessed be declared void, and the plaintiffs therein enjoined from further proceedings at law; (5) That the Morrow Shoe Co. be enjoined from further proceedings in attachment, and that the same be set aside.</p> <p>The several defendants answered under oath, denying the allegations of fraud, collusion, and so forth, in the bill, and giving a history of the indebtedness of Strasburger to them, which was alleged also to be just, due, etc.</p> <p>Receivers were appointed pendente lite, and the property passed into their hands, and was sold for $11,443.93. After deducting expenses, charges, etc., there remained $7,152.40 to be applied to the claims of creditors under order of the court.</p> <p>June 18, 1896, reference was made to the auditor to ascertain the names of creditors and the sums due each by Strasburger, and in his report appear the debts due the defendants upon which the judgments were confessed.</p> <p>March 23, 1897, a final decree was entered declaring the proceedings in the several suits in which judgments were confessed and the goods seized to constitute a voluntary assignment for the benefit of all creditors, and ordering the distribution of the fund aforesaid pro rata among the creditors as shown in the auditor’s report.</p>

Hearing on an appeal by the plaintiffs from a judgment on verdict in an action of ejectment. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the defendant from a judgment under the 73d Rule, for want of a sufficient affidavit, of defense, in an action on promissory notes. The facts are sufficiently stated in the opinion.

<p>Hearing on two appeals from an order of the Orphans’ Court directing partial distribution of an intestate’s estate.</p> <p>The Court in its opinion stated the case as follows:</p> <p>The record before us presents two appeals, both from the order of the court below of the 30th of June, 189(7, directing distribution of part of the personal estate of the late Judge Advocate General, Joseph Holt, deceased. Joseph Holt died in this District, intestate, in the year 1894. He left no widow, child, parent, grandchild, brother or sister surviving him; but he left nephews and nieces, children of deceased brothers and sisters, and one grandnephew, the child of a deceased nephew. The questions of claim of distribution as among some of these parties are conflicting, as presented and prayed for by their separate petitions.</p> <p>Joseph Holt, the intestate, had two brothers and one sister, who died in his lifetime, leaving issue. His brother Thomas Ilolt, left a son, Washington Holt, who survived the intestate, and is still living. His sister, Mrs. Elizabeth Sterett, left two children, William G. Sterett and Margaret Bowmer, who are still living; and his brother Robert Holt, left John W. Holt, Robert S. Holt, Thomas Holt, James J. Holt, Joseph I. Holt, Lockie Iglehart and Sarah Holt, his children, and of these Joseph I. Holt died in the lifetime of the intestate, leaving a son Joseph H. Holt, a minor, the grandnephew of the intestate Joseph Holt, sen.</p> <p>Upon the application of the surviving children of the brother, Robert Holt, deceased, distribution of the part of the personal estate ready for distribution was asked to be made among the surviving nephews and nieces of the intestate, per capita, and not per stirpes; and there being but two other nephews and one niece standing in the same relation to the intestate, the interest of the petitioners, nephews and nieces, the issue of one brother, would be considerably increased by a per capita distribution, instead of a distribution per stirpes, by the reduction of the distributions that would be made to the one nephew, the only child of one brother, and the nephew and niece, the children of the sister of the intestate, according to a per stirpes distribution.</p> <p>The grandnephew, Joseph H. Holt, by his guardian, also made application for a distribution by -which he might be allowed to participate, and ho claims that the estate for distribution ought to be divided into ten parts, and distributed, one-tenth to each of said surviving nephews and nieces of the intestate, and that the petitioner ought to be allowed to stand in the place of his father, Joseph I. Holt, deceased, and take one-tenth part of the fund. But if not so, then he claims that the estate ought to be divided into three parts, one to each of said stocks, the two brothers and one sister; and of the one-third part allotted to the children of Robert Holt, a deceased brother of the intestate, one-seventh thereof ought to be distributed to the petitioner, who is entitled to stand in the place of his father, Joseph I. Holt, deceased. in respect to such distribution. The son of Thomas Holt, deceased, and the two children of Mrs. Sterett, contend for distribution per stirpes; but, of course, they have no interest in, and take no part in resisting the claim and contention of the grandnephew, Joseph H. Holt, if that claim be confined to the one-seventh of the one-third of the fund for distribution.</p> <p>The case'below, presented on the two petitions, was heard by Mr. Justice Hagner, and, in a very clear and able opinion, he held that the sum then for distribution, should be distributed per stirpes; one-third to the child of Thomas Holt, a deceased brother of the intestate; one-third to the children of Mrs. Sterett, the deceased sister of the intestate, and the remaining third to the surviving sons and daughters of Robert Holt, a deceased brother of the intestate; and that Joseph H. Holt, the grandnephew of the intestate, and minor son of Joseph I. Holt, deceased, was not entitled to share in the distribution in any manner; and a decree was made accordingly. And it is from that decree that the two separate appeals have been taken; the one by the surviving children of Robert Holt, deceased, and the other by or for his grandson Joseph H. Holt, son of Joseph I. Holt, deceased.</p>

<p>Hearing on an appeal by the relator from a judgment dismissing a petition for a writ of mandamus.</p> <p>The Court in its opinion stated the case as follows:</p> <p>The relator, Henry Sheehy, applied to the excise board of the District of Columbia, to whose jurisdiction the subject-matter is committed by law, for a license to carry on the wholesale liquor business at No. 2038 Eleventh street, northwest, in the city of Washington, and being refused, he instituted the present proceedings by filing his petition for a writ of mandamus to require the excise board further to act upon his application. The refusal of the board, as it appears, to grant the license or to act further upon the application, was based upon a construction of the law applicable to the case different from that claimed by the relator to be the true construction.</p> <p>An act of Congress of February 28, 1891 (26 Stat. 797), entitled “An act to prevent the granting of liquor licenses within one mile of the Soldiers’ Home,” in the District of Columbia, and which has the merit of being one of the shortest statutes in the records of Congress, being contained within four lines, provides “that on and after the passage of this act no license for the sale of intoxicating liquors at anyplace within one mile of the Soldiers’ Home property in the District of Columbia shall be granted.” The place of business of the relator, No. 2038 Eleventh street, northwest, in the city of Washington, at which he proposed to carry on the wholesale liquor business, and for which he desired the the proposed license, is greatly within one mile of the Soldiers’ Homo property, if the measurement be made in a straight line on a level plane from the outside walls of the inclosure, as the Board of Excise has held it should be made; but it is beyond the one mile limit from the Home, if the measurement is to be made, as contended by the relator, between the nearest entrance to each place by the shortest avenue of travel between the two places. And it will be still further beyond the limit, if, as further contended by the relator, the initial point of measurement should be taken at the Soldiers’ Horne buildings, and not at the gate of the inclosure. The substantial question in the case, therefore, is as to the proper method of measurement.</p> <p>The members of the Excise Board made return to the rule served upon them in pursuance oí the petition fried by the relator; and upon the petition and return, and argument thereon by counsel, the court below refused the writ of mandamus and dismissed the relator’s petition. From that action the relator has prosecuted the present appeal.</p>

Hearing oel an appeal by a judgment defendant from an order overruling a motion to quash a writ of execution. The Court,' in its opinion, stated the case as follows : The appellant, Brainard H. Warner, on October 28, 1895, was sued before a justice of the peace of the District of Columbia, as guarantor of the interest upon a promissory note for $5,000.

Hearing on an appeal by the petitioners from an order of the Orphans’ Court dismissing a petition for the distribution of the personal estate of a decedent. The Court in its opinion stated the case as follows: This is an appeal from a decree of the Supreme Court of the District, holding a session for Orphans’ Court business, in the course of the administration of the estate of Alexander M. Kenaday, deceased.

<p>Hearing on an appeal by the defendant from an order overruling a motion to vacate a judgment alleged to have been entered upon a void verdict.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing oil appeals by the complainants from decrees dismissing two bills of complaint in suits to vacate deeds of real estate alleged to have been procured by fraud.</p> <p>The Court in its opinion stated the case as follows:</p> <p>These two cases, although argued together and proper to bo considered together, have no necessary connection with each other. They depend, however, substantially upon the same conditions and circumstances; it was agreed that the testimony taken in the one should be used in the other; and while there are some features of difference in the two cases, which will be noted hereafter, it is proper that we should consider them together. Even the two bills of complaint contain substantially the same allegations. The purpose of both suits is to vacate certain deeds of conveyance claimed to have been made by a person mentally incapable of making them and under undue influence practiced by the grantees in the deeds, and to a certain extent by collusion with each other.</p> <p>On September 21, 1893, there was placed on record among the land records of the District of Columbia, a paper purporting to be a deed of conveyance from one Alice Moran to tlie appellee, James D. Daly, under date of August 26, 1893, whereby there was conveyed by the former to the latter lot of ground numbered eleven, in square numbered forty-two, in that part of the city of Washington formerly known as Georgetown, together with the house thereon and all the furniture and household effects contained therein, for the alleged consideration of $2,500. Four days afterwards, on September 25, 1893, there was placed on record another paper purporting to be a deed of conveyance from the same Alice Moran to the appellee, James Sullivan, and purporting to have been executed on the same day, September 25, 1893, whereby there was conveyed by Alice Moran to Sullivan, for the alleged consideration of $7,000, lot of ground designated as part of lot numbered fifteen, in square numbered five hundred and thirty-four, in the city of Washington, being the north 28 feet of the lot by a depth of 145 feet, with the improvements thereon, which, it seems, comprised a store or a place of business then under good rent.</p> <p>It was claimed by the appellants, who are the grandchildren of said Alice Moran, that she was at the time an aged and very infirm person, and wholly incapable, mentally and physically, of executing a valid deed or contract; and accordingly the two bills were filed which are the basis of these proceedings. The bills were filed originally in her name by one of the present appellants, Michael V. Moran, as her next friend. But during the pendency of the proceedings, after the testimony wras completed, as it would seem, but before the causes came on for hearing in the court below, Alice Moran died; and the causes were revived by bills of revivor in the names of the appellants as her heirs at law.</p> <p>It appears from the record that Alice Moran, a woman upwards of seventy-eight years of age at the time of the alleged execution of the deeds in question, and who had been a widow upwards of forty years, had resided for upwards of thirty years of that time and carried on the grocery and liquor business, whereby she had acquired some moans, at No. 2805 M (or Bridge) street, in Georgetown, which is the same property purported to have been conveyed to the appellee Daly, by the deed above mentioned, of August 26, 1893; and she continued to reside there and nominally to carry on the business until the time of her death, which occurred on February 15, 1896. She had four children, two of whom had died many years before her without issue. One, a daughter Rosetta, who died in 1873, had intermarried with the appellee, James D. Daly, and had by him one child who survived her only a few months. The fourth child, a son, was the father of the appellants. lie died in 1872; and the appellants, therefore, are now the only heirs at law of the deceased, Alice Moran.</p> <p>Since the death of his wife Rosetta, the appellee Daly continued to reside in the house with his mother-in-law, as a member of her family, and so continued until her death. The grandchildren had made their home with their mother in the immediate neighborhood, or had acquired homes for themselves. The only other inmates of Mrs. Alice Moran’s house were one or two domestics, and occasionally, as it would seem, one or two boarders.</p> <p>In this condition of things the two bills in equity now before us wTere filed in the name of Mrs. Alice Moran, by one of her grandsons as her next friend, it being assumed that she was mentally incompetent to act for herself without some guardian or next friend. Both bills, as already intimated, set forth substantially the same facts, the gist of which was that Alice Moran, through physical and mental imbecility, was incapable of making a valid deed or contract at the time at which the deeds in question purport to have been made, and that both deeds were procured by undue influence exercised upon her by the appellee Daly; and the bill against Sullivan further alleged that the conveyance to him had been procured by collusion and conspiracy on his part with Daly.</p> <p>The defendants, Daly and Sullivan, denied the substantial allegations against them; and a large amount of testimony was taken. As already stated, after the conclusion of the testimony and before final hearing, Alice Moran died on February 15, 1896; and both suits were revived in the names of her grandchildren as her heirs at law. A paper purporting to be her last will and testament and to have been executed on March 25, 1893, was offered for probate, and after some contest over it in the Orphans’ Court, was admitted to probate. This will devises the property described in the Sullivan deed to her daughter-in-law, Margaret Moran, in trust for the appellants, the grandchildren of the testatrix. In the Georgetown property, that mentioned in the Daly deed and wherein the testatrix resided, the will gave a life estate to Daly, and devised the remainder in the same way as the previously mentioned property. It gave Daly also the stock in trade and the business of the testatrix, the furniture and household effects in the house for his life, with remainder to such of her grandchildren as should survive him, and also all the rest and residue of her estate, which would seem to have included another piece of real estate in Georgetown; and it appointed one of her nephews and a friend to be her executors. This will was introduced into the present case by the appellee Daly as an exhibit to his answer to the bill of revivor; but it makes no further figure in the case; and it does not appear what the estate was that was left by the deceased Alice Moran.</p> <p>Upon the hearing the court below dismissed both bills of complaint; and from the decree of dismissal the complainants have appealed.</p>

Hearing on an appeal by the defendants from a judgment on verdict in an action on a contract. The facts are sufficiently stated in the opinion.

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.

<p>Hearing on an appeal by the defendant from a judgment. under the Seventy-third Rule for want of a sufficient affidavit of defence in an action on a promissory note.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by the plaintiff from a judgment oil a verdict directed by tlio court in an action on a promissory note.</p> <p>The Court in its opinion stated the case as follows:</p> <p>In this case, the action was brought on the 19th day of February, 1897, by the appellant, Temperance P. Reed, against Samuel H. Wells and the appellee, Michael V. Tierney, to recover the balance due on a promissory note drawn by Samuel H. Wells, payable to the order of Tierney, and by the latter endorsed to the plaintiff.</p> <p>The declaration counts upon the note, and then alleges that when the note became due and payable according to its tenor and effect, at the request of the defendants the plaintiff agreed to extend the time of payment until the 16th day of March, 1894, the terms of the said note to remain otherwise unqualified and in full force; and in consideration of such extension the defendant Tierney endorsed on said note that “demand, protest, and notice of protest, waived.” That, at the expiration of the time for which payment was extended, the note was presented for payment and was dishonored. Credits were endorsed, showing a balance due of $886.86.</p> <p>The common money counts were added. And the defendant Tierney interposed several pleas, to wit: That he never was indebted as alleged; that the plaintiff’s cause of action against him did not accrue within three years prior to the institution of this action. And further, that after the maturity of the note sued on, to wit, on or about March 16, 1894, the plaintiff, for a valid and binding consideration, to wit, the payment' of interest in advance of the time it was payable by the said Wells to the plaintiff, agreed with Wells to extend the time of the payment of said note until six months from March 16, 1894, and that such extension was without the knowledge, consent, authority or direction of the defendant Tierney, and this he is ready to verify, etc.</p> <p>Issue was joined upon these pleas, and the action was discontinued as to Wells.</p> <p>The facts of the case, as disclosed by the bill of .exception, ' are few, and are without conflict or dispute. The note, with its endorsements thereon, is set out in the bill of exception. It is dated March 16, 1892, and was originally for the sum of $2,874.77, payable one year after date, with interest thereon until paid, at six per cent, per annum, payable semiannually, and was made payable at the banking house of Riggs & Co., Washington, D. C. The note was secured by a deed of trust on certain real estate in the city of Washington. About two months after the date of the note, Tierney, the payee, sold and endorsed the note, for its face value, to the plaintiff. At the maturity of the note, Wells, the maker, desired an extension of time for payment, and applied to the parties concerned to grant such extension. The extension was accordingly granted, by the following endorsement in writing made upon the face of the note:</p> <p>“The time of payment of this note is extended to 16th of March, 1894, with interest, payable semi-annually, at six per cent, per annum. Said note and the deed of trust securing the same are to remain otherwise unqualified and in full force,” and which endorsement was signed by" Tierney, the payee and endorser; by Wells, the maker, and by Reed, the endorsee and present plaintiff. And at the same time, Tierney, the endorser, endorsed upon the note the following: “Demand, protest, and notice of protest, waived;” and this endorsement wTas signed by Tierney.</p> <p>Upon the undisputed facts, the court, upon motion of the defendant, being of opinion that there was no sufficient consideration shown to support the agreement for the extension of time for payment of the note, instructed the jury that the plaintiff was not entitled to recover, and that their verdict should be for the defendant. This instruction we must suppose to have been given in reference to the plea of the statute of limitation; there being no evidence offered in support of the plea of the six months’ alleged extension from the 16 th of March, 1894. To the instruction given the plaintiff excepted.</p>

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

Hearing on an appeal from an order of the court below dismissing an appeal to this court after appeal had been perfected. The facts are sufficiently stated in the opinion.,

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

<p>Hearing on an appeal by an intervening party to a suit in equity overruling his exceptions to and ratifying and confirming a report of the auditor.</p> <p>The Court in its opinion stated the case as follows':</p> <p>On May 23, 189G, one Edward K.. Walton, being the owner of lots 7 and 8, in block 36, in a subdivision of land in the District of Columbia, known as Columbia Heights, executed and delivered a deed of trust thereon to George E. Emmons and Lewis J. Davis to secure to Charles W. Simpson the payment, three years thereafter, of the sum of $27,000, with interest at the rate of six per centum per annum, witli which sum it was proposed and agreed between the parties to the transaction that six dwelling houses should be constructed upon the lots. It was part of the agreement that the houses should be completed for this sum, and that the lender of the money should be guaranteed by the borrower against mechanics’ liens. On the same day, May 23, 1896, the present appellee, the American Bonding and Trust Company, became the surety of Walton the builder,.and executed a bond to secure the lender of the money against mechanics’ liens and to insure the completion of the buildings; and Walton at the same time executed a bond of indemnity to the company to secure it against loss on account of its suretyship.</p> <p>Walton proceeded with the erection of the houses; and among those who furnished materials to him was the appellant, Tilomas W. Smith, who supplied lumber for use in the buildings to the value of $1,611.57. It is claimed also that Smith advanced to Walton, to enable him to go on with the houses, the sum of $358.43. For these two sums aggregating $2,000, Walton, on September 19, 1896, executed and delivered to Smith an assignment and transfer of the sum of $2,000 on account of the loan which he had negotiated, payable when the six houses should be “trimmed out,” and directed Emmons & Go. to pay the same on the surrender of the 'assignment to them. It seems that Simpson, the party who had made the loan, was a member of the-firm of Emmons & Co.</p> <p>Some days afterwards Smith presented the order for payment. Thereupon a question arose as to whether the buildings had yet been “trimmed out,” and, therefore, whether the contingency had arisen upon which Smith would have become entitled to payment under the terms of the order. On the same day, it seems, several mechanics’ liens were filed against the property; and the result was that the order was not paid.</p> <p>A severe storm on September 29, 1896, caused considerable damage to the buildings; and Walton had become financially embarrassed, and'seems to have become unable to complete them. Thereupon the appellee, the American Bonding and Trust Co., made demand upon him to turn over the property to it for completion, and, upon his refusal, instituted the present suit; the prayer of which was for the appointment of a receiver to take charge of the property during the pendency of the suit, for an injunction against Walton, and that the property should be turned over to the complainant company for completion. Upon the coming in of Walton’s answer to the bill of complaint, receivers were appointed with the consent of the parties in accordance with the prayer of the bill; and.by the order appointing them they were authorized and directed to receive all moneys coming to Walton on account of the buildings, therein including the residue of the loan of $27,000, and with the same to complete the buildings, and the remainder of the money, if any there should be in their hands, to turn into court.</p> <p>The receivers thereupon collected from Emmons and Co. the sum of $4,331.28, which was the unexpended balance of the loan of $27,000. This was on November 5 1896. And it is understood that they have employed this sum, as required by the order of their appointment, in the completion of the buildings.</p> <p>On November 4, 1896, the appellant Smith, filed his petition for leave to intervene in the cause ; and there was an order made by the court on the same day allowing the intervention and making him a defendant to the suit. Then, on November 21, 1896, he filed in the cause another petition for a rule on the receivers to show cause why they should not pay to him the sum of $1,641.57 out of the amount collected by them from Emmons and Co., to the extent of which sum he claimed Walton’s assignment to him of $2,000 “to be a valid equitable assignment of the money in the hands of said receivers.” The receivers made answer denying the right of the petitioner in the premises. Thereupon, on November 25, 1896, on motion of the counsel for petitioner, there was an order of reference to the auditor made by the court, “ with directions to take testimony and report on the question whether the six dwelling houses mentioned in the petition of the said Smith were trimmed out at the time that the receivers herein collected the sum of $4,331.28 from George E. Emmons & Co., said report to be returned as soon as practicable.”</p> <p>The auditor executed the order of reference, took testimony, which he returned with his report, and found that at the time the receivers collected the sum of $4,331.28 from George E. Emmons & Co., the houses had not been trimmed out.</p> <p>To the report of the auditor two exceptions were filed on behalf of Smith, one of them of a general character, to the ■effect that he should have found that at the time indicated the houses had been trimmed out; and the other substantially to the effect that the auditor should have found that the houses had been trimmed, out substantially, notwithstanding that some work had not been done which, beyond question, falls under the designation of “trimming out.”</p> <p>While the report and the exceptions thereto were pending undisposed of, the receivers being desirous to complete the buildings, it was agreed between all the parties in interest that they might do so and use the fund in their hands for the purpose, upon the execution of an indemnifying bond by the appellee company to the appellant Smith. And this was done.</p> <p>Subsequently, on March 2, 1897, the report and the exceptions thereto came on for hearing in the court below; and the exceptions were overruled, and the auditor’s report was ratified and confirmed. From the order of ratification Smith has appealed to this court.</p>

Hearing on an appeal and a cross-appeal from a decree in a suit for infringement of a patent.

Hearing on an appeal by the defendant in an action of debt from a judgment rendered after an order had been made overruling his motion to quash an attachment and sustaining a demurrer to his plea to the declaration. The Court in its opinion stated the case as follows: This is an appeal-from a judgment in an action of debt accompanied with proceedings in attachment.

<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 facte are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by the plaintiff 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 is a suit upon a policy of insurance against fire. At the trial in the court below, upon the conclusion of the testimony on behalf of the plaintiff, the court, upon the motion of the defendant, peremptorily instructed the jury to render a verdict for the defendant, which was done. From the' judgment thereupon entered the plaintiff has appealed.</p> <p>In this condition of the record there is no controversy as to the facts. The statement of the case is to be adduced from the testimony of the plaintiff and her witnesses ; and this testimony shows the following condition of things:</p> <p>On February 21, 1896, the plaintiff, Nina Dumas, was the occupant of a dwelling house, No. 1430 C street, in the city of Washington, and had in it furniture stated to be of the value of about $4,000. Of this furniture she was the absolute owner of about one-half, which she stated she had purchased in New York. A part of the residue, amounting in value to about $950, which had been purchased from a firm of Craig & Harding, in Washington, was encumbered by a deed of trust or chattel mortgage given to secure that firm in the sum of $671, which was part of the purchase money. Another part of this residue, amounting to about $600 in value, she had purchased from a firm or company designated as the Julius Lansburgh Furniture and Carpet Company, upon what is known as the instalment plan, whereby the vendor company remained the owner of the property until full payment was made for it. And still a third part, consisting of a piano of the value of $275, had merely been rented by the plaintiff and was not owned by her.</p> <p>Being thus in possession of this furniture, on the day specified she sought the agent of the defendant company at his office, for the purpose of effecting an insurance against fire upon it in the sum of $3,000. She did not find the agent at the time, but subsequently on the same day the agent came to her house, and agreed, in consideration of a premium of $8, to let her have a policy of insurance for $2,500. He declined to examine the furniture, but accepted the plaintiff's estimate as to its value. No questions were asked and no representations were made in regard to the ownership of the furniture. Later in the day an employee of the company called at her house, received from her the premium of $8, and thereupon delivered to her the policy of insurance.</p> <p>This policy contained the following conditions, which are material to the issues in the present case:</p> <p>“ This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in- the property be not truly stated therein ; or incase of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof whether before or after a loss.</p> <p>“This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if . . . the interest of the insured be other than unconditional and sole ownership; . . . or if the subject of insurance be personal property and be or become incumbered by a chattel mortgage; or if, with the knowledge of the insured, foreclosure proceedings be commenced, or notice given of sale of any property covered by this policy by virtue of any mortgage or deed of trust . .</p> <p>On February 27, 1896, six days after the issue of the policy, the plaintiff went to New York, leaving her house in charge of a servant, who, after closing it at night, left it and went to her own home. On the night of March 1, or the morning of March 2, 1896, during the absence of the plaintiff in New York, fire broke out in the house under some circumstances of suspicion, and the insured furniture was destroyed or greatly injured. The plaintiff thereupon returned to Washington and employed one David J. Tavenner, who was or had been the salesman of Craig & Harding in making the sale to her of so much of the furniture as she had purchased from them, to appraise the amount of her loss: He did so; and she verified the appraisement. To the appraisement was annexed an affidavit executed by her, but prepared by the adjuster of the defendant company, in which she swore that she was the sole and absolute owner of all the articles enumerated in the schedule of the appraisement, and that they were not incumbered in any way. This affidavit she states that she executed without reading it.</p> <p>On March 5, 1896, she signed and verified another paper entitled “proof of loss,” presented to her by the adjuster of the company for execution. In this paper she stated that the property described therein, which was the property claimed to have been destroyed, belonged to her, and that no other person had any interest therein.</p> <p>On the evening of March 6,1896, after some negotiations with the agents of the defendant company, the plaintiff, together with Tavernier, already mentioned, who seems to have been with her as her friend, was placed under arrest by private detectives, at whose suggestion does not appear, and taken to the station house. There she was kept until the evening of the next day, and was visited in the meantime by the agents of the company, who offered to procure her release and to give her $50 if she would surrender her policy, execute a release to the company of all claims against it, and leave the city. To this she agreed. She executed the desired release, and received from the agents of the company the sum of $44.50 and a ticket to New York, with an intimation that if she returned to Washington she would be “pinched,” whatever that expression means. She was put on a train to New York, but she did not go there. She returned to Washington, and on July 6, 1896, instituted the present suit.</p> <p>Her declaration contains a special count and the common counts. In the former the policy of insurance is set forth and a breach of it by the defendant alleged. The defendant pleaded the general issue, the release above mentioned, and other pleas specifically to the effect that the plaintiff was not the absolute and unconditional owner of the property insured ; that to portions of it she had no title, and that other portions were covered by chattel mortgage, all in violation, of the conditions of the policy of insurance.</p> <p>At the frial the facts hereinbefore mentioned, with other facts and details not deemed necessary here to be stated, were adduced by the plaintiff and her witnesses, and, as already stated, at the conclusion of the testimony on her behalf, the court directed a verdict for the defendant. The grounds of that direction, as set forth in the motion made for the purpose on behalf of the defendant, were four, namely :</p> <p>1st. Because the plaintiff had avoided her policy of insurance by declaring in her affidavit of March 5, 1896, that she was the absolute owner .of all articles enumerated therein, and that the same were not encumbered in- any way.</p> <p>2d. Because part of the furniture was encumbered by a chattel mortgage.</p> <p>3d. Because she had no title to any of the goods claimed to have been purchased from the Julius Lansburgh Company.</p> <p>4th. Because the piano did not belong to her.</p>

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

Hearing on an appeal by one of two defendants from a judgment on verdict, in an action by a husband to recover damages for loss sustained by him for injuries to bis wife.

<p>Hearing on an appeal by the defendant from a decree granting the prayers of a bill to redeem a certificate of stock.</p> <p>The facts are sufficiently stated in the opinion.</p>

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

Hearing on an appeal by the defendant from a judgment on verdict in a suit for libel. Statement of the Case. This is an action for libel brought by Samuel B. Davis against the Norfolk and Washington, D. C., Steamboat Company. The alleged libel is contained in a letter written by John Callahan, the general superintendent of the defendant company, in reply to a letter from K. C. Murray.

Hearing oil an appeal in an interference ease from a decision of the Commissioner of Patents. The|facts are sufficiently stated in the opinion.

<p>Hearing on an appeal by tlie defendant from a judgment on verdict in an action on two promissory notes.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is a suit in assumpsit, instituted in the Supreme Court of the District of Columbia, on December 19, 1896, by the appellee, Martha M. Read, against one John C. Hurst, as maker, and the two appellants, Jacob P. Clark and the Palisades of the Potomac Land Improvement Company, as endorsers, of two certain promissory notes, one for $7,500, and the other for $3,000, both bearing date on April 1, 1891, and both payable on or before April 1, 1895, with interest thereon until paid at the rate of six per centum per annum, payable semi-annually, and both of which were secured by deeds of trust on certain real estate in the District of Columbia. They were drawn to the order of the appellant company, and were transferred to the plaintiff by that Company in due course of business by the the endorsement of the company, which purported to have been made by J. P. Clark, as its vice-president, and E. B. Cottrell, as its secretary, and which was followed by the endorsement of J. P. Clark in his individual capacity. Attached to what purported to be the endorsement of the company was its corporate seal.</p> <p>The notes came into the hands of Mrs. Read, the appellee, through S. T. G. Morsell, who acted as her agent in -procuring investments for her; and the interest continued to be paid regularly upon them. Under date of November 5, 1894, Hurst, the maker of the notes and the owner of the property on which they were secured, addressed a letter to Morsell, in which he stated that he was negotiating a sale of the property, and requested Morsell to procure for him an extension of the 'notes for two years at the same rate of interest. Morsell sent the letter to Mrs. Read, and she endorsed on the back of it a statement to the effect that she was willing to extend the mortgage for three years from maturity at the same rate of interest, and that she did extend it. The request of Hurst, as will be noticed, was for an extension for two years, while the offer of Mrs. Read was for an extension for three years. Whether their minds met upon the question, and there was a definite agreement between them for an extension for either one or the other of tlie two specified terms, is one of the contested questions of fact in tlie case.</p> <p>The interest continued to be paid until October 4, 1895; but the security seems in the meantime to have become depreciated in value.</p> <p>On April 5, 1895, at the maturity of the notes, they were presented to the maker for payment, and were not paid; and notice of their dishoner was on the same day given to Clark and Cottrell, as tlie vice-president and secretary respectively of the appellant company, and to Clark individually. Subsequently, the notes remaining unpaid, the present suit was instituted.</p> <p>Judgment seems to have been rendered against the maker of the notes, whether by default or after trial does not appear from the record before us. The two endorsers, the appellants here, pleaded the general issue, and their release from liability by the plaintiff by virtue of the alleged extension granted to the maker.</p> <p>At the trial, the plaintiff having proved the execution of the notes in question and the endorsements, as above stated, and also the protest thereof, offered the notes in evidence, and they were received over the objection of the defendants, who claimed that there was no sufficient proof of the endorsement by the company, and no sufficient proof of the protest and notice; and also, that the endorsement of the company, being under seal, the notes were thereby converted into specialties, and were therefore inadmissible under a declaration in assumpsit. To the ruling of the court thereon exception was taken by the defendants, and upon that exception three of the six assignments of error are based.</p> <p>To maintain the theory of the discharge of the defendants from liability by the alleged extension of time given by the plaintiff to the maker of the notes, the defendants offered in evidence the letter from the maker to Morsell, which has been mentioned, and the endorsement thereon of the appellee, both of which, under objection by the plaintiff were refused by the court. The defendants also offered to show that, after the maturity of the notes, the plaintiff had received interest thereon accruing after such maturity, which offer, under similar objection, was also excluded by the court; and this forms the basis of two of the assignments of error. Some other testimony offered by the defendants was also excluded; but, although exception was duly reserved to the ruling of the court thereon, that ruling is not assigned as error, and it need not therefore be here considered. It would seem to be unimportant in the determination of the main issues of the case.</p> <p>Upon the conclusion of the testimony, the defendants requested the court to instruct the jury to return a verdict in their favor; which the court declined to do. The court then proceeded to instruct the jury in substantial accord with its rulings upon the admission of testimony; and to this also exception was reserved by the defendants. The refusal of the trial court peremptorily to direct a verdict for the defendants forms the basis of one of the assignments of error.</p> <p>Verdict and judgment having been in favor of the plaintiff, the defendants have brought the cause here by appeal.</p>

<p>Hearing on an appeal by two of several defendants from a decree in a suit for an injunction against the marshal of the District of Columbia and others.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is an appeal from a decree enjoining the Marshal of the District of Columbia from retaining in his custody certain goods and chattels, and enjoining him and the appellants, Frank Hume and Timothy D. Daly, from further proceedings against the same by virtue of executions that had been levied thereon under judgments against Caleb W. Spofford.</p> <p>The property consisted of the furniture in the hotel known as the Riggs house, and belonged to Spofford, the lessee of said house. The house was first leased to Spofford by Geo. W. Riggs, the owner, on December 1, 1877, for the term of five years, upon an annual rental of $30,000, payable in quarterly instalments. On the same day Spofford borrowed $50,000 of George W. Riggs to purchase furniture and fittings for said house. On December 10, 1877, he conveyed all of said property, then in the house and such as might be added from time to time, to Thomas J. Fisher and Charles C. Glover, trustees, to secure the payment of the rent stipulated in said lease, and the $50,000 loan aforesaid, which was represented by five notes for $10,000 each, payable two, three, four, five and six years after date, respectively, with seven per cent, interest per annum. The trustees were empowered to sell the property in case of default in payment.</p> <p>The trust deed contained a covenant also on the part of Spofford to keep the property insured for the sum of $50,000, while in force, with assignment thereof to said trustees as further security. This insurance was taken out and properly assigned, and was regularly continued during that and the succeeding lease; and at the time this controversy arose the surviving trustee, Glover, held policies therefor amounting to $35,000. The instrument was regularly recorded.</p> <p>George W. Riggs died before the expiration of the lease aforesaid, and the ownership of the house passed to his heirs.</p> <p>Spofford held over after the expiration of his lease until March 1, 1883, on which date E. Francis Riggs, one of the heirs aforesaid, and acting for all, leased the house to Spofford for another term of five years at a rental of $20,000 per annum, payable quarterly. Spofford held after this lease expired without any further agreement. In May, 1888, he paid the last of the notes secured by the trust deed. He was always in default in the payment of rent; but all that was due under the first lease was paid before the expiration of the second.</p> <p>In 1888 he owed $11,000 upon the second lease; this increased to $14,000 on June 1, 1889, and he then gave two notes for this balance. On October 9, 1890, he notified the lessor in writing that he would pay all arrears by May 1, 1891, and on that day surrender possession of the house. His indebtedness increased, and in April, 1891, he owed $35,000 for rent, including the two notes aforesaid.</p> <p>Riggs and Spofford entered into negotiations, and Riggs announced his intention, in case of no arrangement, to bring suit on April 15th, so as to be able to obtain judgment at the ensuing May rules. The result was that on April 14 Spofford executed and delivered the following instrument:</p> <p>“Being now indebted in the sum of thirty-two thousand dollars, unto E. Erancis Riggs, agent, on account of rent due to him as my landlord for the use and occupation of the Riggs house, up to the 1st day of March, 1891, and also for rent accruing from said date up to the present time at the rate of $20,000 per annum, and the said E. Francis Riggs, agent, pressing for a settlement, in consideration of the premises and to accomplish an amicable settlement between us, I hereby direct Charles C. Glover, trustee in a certain deed of trust, by survivorship, upon the personal property in said Riggs house, through Charles C. Duncanson, auctioneer, to sell, at public auction, at said Riggs house, all the personal property therein, commencing as early !as practicable in the month of May next, and from the proceeds of such sale, to pay and satisfy unto the said E. Francis Riggs, agent, all the rent which, up to the time of the commencement of such sale may by me be due to him on account of the use and occupation by me of said Riggs house, after first paying the expenses of and connected with such sale, and to pay over unto me the balance, if any, of such proceeds.</p> <p>“ Provided, nevertheless, that I shall have, and I hereby expressly reserve, the right, upon payment of all my indebtedness then existing for rent for said Riggs house, unto the said E. Francis Riggs, agent, at any time before the said sale, to have and enjoy in my own right, and free from any lien, trust or encumbrance, my original and full title to all my personal property in and upon the said Biggs House. , “In order to obviate expense and unnecessary publicity, the said sale, if made by said surviving trustee, through said Duncanson, I desire to have advertised in my own name. But no commissions are to be allowed to said trustee.”</p> <p>When this paper was submitted to Spofford it did not contain the last paragraph that now appears therein.</p> <p>Counsel for Biggs claimed at that time that the original trust deed referred to therein was in force as security for all arrears of rent. Before signing, Spofford consulted counsel, who expressed the opinion that the trust deed did not have the operation claimed; and this information was conveyed to Biggs’ counsel. The latter stated that if the continuing obligation of that instrument was denied, he would proceed to enforce his legal rights.</p> <p>Spofford disclaimed any objection to signing, on that ground, but expressed his desire to avoid the payment of the trustees’ commissions as provided therein. One of the trustees, Fisher, had died, and as Glover, the survivor, was the partner and friend of Biggs, the matter of commission was regarded as of no consequence, and the last paragraph aforesaid was then added. Spofford then signed, but did not acknowledge the same so that the instrument could be recorded.</p> <p>Biggs, it appears, was not then aware of Spofford’s indebtedness to others. The appellant, Frank Hume, had for several years sold groceries to Spofford on credit, and kept a running account with him therefor. The other appellant, Timothy D. Daly, was a dealer in butter, eggs, etc., and had supplied Spofford therewith for years, upon credit, from month to month. In addition, he had advanced money to Spofford, lending him at one time $2,500 to help him pay off the last note of the $50,000 loan aforesaid.</p> <p>Neither Hume nor Daly knew of the existence of the paper of April 14, 1891, until May 2. They believed, and it seems had the right to believe, that the furniture of Spofford was unencumbered, until this last date.</p> <p>Between April 14 and May 2 Hume’s credit sales to Spofford amounted to $126.28. Daly’s sales during the .same period are not accurately given, but were probably between $200 and $500.</p> <p>About the last of April the hotel furniture was advertised in the claily papers for sale at public auction by Duncanson Bros., auctioneers. The advertisement contained no reference to the trust deed or the paper of April 14, or to the purposes of the sale.</p> <p>On May 2 Hume and Daly learned of the advertisement and made inquiries of Spofford. In the course of interviews with Spofford and his counsel and counsel for Biggs, they were informed of the instrument of April 14, and the circumstances of its execution. Immediately after, on the same day, each filed suit against Spofford, who appeared in court and confessed judgments, one for Hume in the sum of $1,941.38, and one for Daly in the sum of $5,949.43. Executions were at once issued and levied, on the property in controversy. Spofford had no other property subject to execution and was wholly insolvent.</p> <p>May 9, 1891, the bill was filed by E. Francis Biggs against all the necessary parties, and a temporary injunction was obtained. By agreement the property was permitted to be sold by the trustee, for the benefit of Biggs, who executed a bond in lieu thereof.</p> <p>On final hearing the injunction was perpetuated, and from that decree the appeal has been taken.</p>

<p>Hearing on a motion by the appellants to vacate an order dismissing an appeal.</p>

Hearing on an appeal by tbe defendant from a judgment on verdict in an action of assumpsit. Tbe Court in its opinion stated tbe case as follows: Tbis case bas been in this court on a former appeal [4 App. D. O. 51), and tbe judgment was then reversed for error found to exist in the admission of certain evidence offered by the plaintiff, Frederick G. Aukam.

<p>Hearing on an appeal by the complainant from a decree dismissing a bill to set aside a deed of trust sale and certain deeds of conveyance.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by the defendant from a judgment under the Seventy-third Rule for want of a sufficient affidavit of defence.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal by the complainant from a decree sustaining a demurrer to and dismissing a bill for want of necessary parties. The facts are sufficiently stated in the opinion.

Hearing on three appeals by the owners of a vessel, libeled for money advanced and supplies furnished, from decrees declaring liens against the vessel in favor of the libelants. The facts are sufficiently stated in the opinion.

<p>Hearing on an appeal by a defendant executrix from an order of reference to the auditor after a verdict for'the plaintiff.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by the defendant from a decree overruling a demurrer to and granting the prayers of a bill to enjoin the Treasurer of the United States from paying any money to a hospital undejr a contract between it and the Commissioners of the DistricjUof Columbia.</p> <p>The Court in its opinion stated the ca.se as follows:</p> <p>There is an appeal by Ellis H. Roberts, the Treasurer of the United States, from a decree enjoining him from paying any money of the United States or the District of Columbia to the Providence- Hospital under a contract made there-, with by the Commissioners of the District of Columbia.</p> <p>The bill was filed by Joseph Bradfield, a citizen of the United States and a resident of the District of Columbia, “ in the interest of himself and all other citizens of the United States similarly situated.”</p> <p>The contract, payments under which are sought to be enjoined, is made an exhibit to the bill, and reads as follows :</p> <p>Articles of agreement entered into this sixteenth day of August, in the year of our Lord, one thousand eight hundred and ninety-seven, by and between the Commissioners of the District of Columbia and the directors of Providence hospital, a body corporate in said District, whereby it° is agreed on the part of the Commissioners of the District of Columbia—</p> <p>That they will erect on the grounds of said hospital an isolating building or ward for the treatment of minor contagious diseases, said building or ward to be erected without expense to said hospital, except such as it may elect, but to be paid out of an appropriation for that purpose contained in the District appropriation bill, approved March 3, 1897, on plans to be furnished by the said Commissioners, and approved by the health officer of the District of Columbia, and that when the said building or ward is fully completed, it shall be turned over to the officers of Providence hospital, subject to the following provisions:</p> <p>First. That two-thirds of the entire capacity of said isolating building or ward shall be reserved for the use of such poor patients as shall be sent there by the Commissioners of the District from time to time through the proper officers. For each such patient, said Commissioners and their successors in office are to pay at the rate of two hundred and fifty dollars ($250) per annum, for such a time as such patient may be in the hospital, subject to annual appropriations by Congress.</p> <p>Second. That persons able to pay for treatment may make such arrangements for entering the said building or ward as shall bo determined by those in charge thereof, and such persons will pay to said Providence hospital reasonable compensation for such treatment, to be fixed by the hospital authorities, but such persons shall have the privilege of selecting their own physicians and nurses, and in case physicians and nurses are selected other than those assigned by the hospital, it shall be at the expense of the patient making the request.</p> <p>And said Providence hospital agrees to always maintain a neutral zone of forty (40) feet around said isolating building or ward and grounds connected therewith to which patients of said ward have access.</p> <p>As witness the signatures and seals of John W. Ross, John B. Wight, and Edward Burr, acting, Commissioners of the District of Columbia, and the corporate seal of the said The Directors of Providence Hospital and the signature of president thereof, this sixteenth day of August, A. D. 1897.</p> <p>(Signed) John W. Ross, [seal.]</p> <p>(Signed) John B. Wight, [seal.]</p> <p>(Signed) Edw. Burr, Acting, [seal.]</p> <p> Commissioners of the District of Columbia. </p> <p>Witness as to the Commissioners :</p> <p>William Tindall.</p> <p>.(Signed) Sister Beatrice, [seal.]</p> <p> President Providence Hospital. </p> <p>Witness as to Sister Beatrice:</p> <p>W. C. Woodward.</p> <p>Having set out the contract, the grounds of the relief prayed for are thus alleged in the bill:</p> <p>“ 4. That, the said Providence hospital is a private eleemosynary corporation, and that to the best of complainant’s knowledge and belief it is composed of members of a monastic order or sisterhood of the Roman Catholic Church and is conducted under the auspices of said church; that the title to its property is vested in the ‘Sisters of Charity of Emmettsburg, Maryland;’ that it was incorporated by a special act of Congress approved April 8, 1864, whereby, in addition to the usual powers of bodies corporate and politic, it was invested specially with ‘full power and all the rights of opening and keeping a hospital in the city of Washington for the care of such sick and invalid persons as may place themselves under the treatment and care of said corporation.</p> <p>“ 5. That in view of the sectarian character of said Providence hospital and the specific and limited object of its creation, the said contract between the same and the Surgeon General of the Army and also the said agreement between the same and the Commissioners of the District of Columbia are unauthorized by law and, moreover, involve a principle and a precedent for the appropriation of the funds of the United States for the use and support of religious societies contrary to the article of the Constitution which declares that Congress shall make no law respecting a religious establishment, and also a precedent for giving to religious societies a legal agency in carrying into effect a public and civil duty which would, if once established, speedily obliterate the essential distinction between civil and religious functions.</p> <p>“6. That the complainant.and all other citizens and taxpayers of the United States are injured by reason of the said contract and the said agreement, in virtue whereof the public funds are being used and pledged for the advancement and support of a private and sectarian corporation, and that they will suffer irreparable damage if the same are allowed to be carried into effect by means of payments made through or by the said defendant out of the Treasury of the United States, contrary to the Constitution and declared policy of the Government.”</p> <p>The defendant demurred generally to the bill, and the case was submitted thereon, resulting in the grant of the injunction as prayed.</p>

Hearing on an appeal by the complainant from a decree dismissing a bill in equity to charge a trust fund with payment of advances and for services claimed to have been rendered. The facts are sufficiently stated in the opinion.

Hearing on an appeal by tbe relator from a judgment dismissing a petition for a writ of mandamus. ■The Court, in its opinion, stated the case as follows: This is an application by the appellant here, John Wedderburn, as relator, for a writ of mandamus to require the Secretary of the Interior to give him a hearing in respect of certain proceedings instituted against him for his exclusion from practice before that Department.

<p>Hearing on an appeal from a decision of the Commissioner of Patents, rejecting an application for reissue of 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.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal from a decision of the Commissioner of Patents rejecting an application for a patent. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the complainants from a decree 'dismissing a bill to enforce a mechanic’s lien. ' The Court in its opinion stated the case as follows: This is a suit in equity instituted to enforce a claim of mechanics’ lien against certain real estate in the District of Columbia.

<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>

<p>Hearing on an appeal from a decision of the Commissioner of Patents refusing a rehearing in reissue proceedings.</p> <p>The facts are sufficiently stated in the opinion.</p>

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

Hearing on an appeal by the relators from an order dismissing a petition for a writ of mandamus to the excise boai'd of the District of Columbia to require the issuance of a barroom license.

<p>Hearing oh an appeal by the caveatees from a judgment of file Orphans’ Court refusing probate to an alleged will, entered upon the verdict of a jury upon issues certified from that court for trial.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is an appeal from a j udgment of the Supreme Court of the District of Columbia, holding sessions for Orphans’ Court business, refusing probate of an instrument offered therefor as the last will of Joseph Holt, deceased.</p> <p>The said Joseph Holt, who had been a distinguished lawyer and was generally regarded as an accomplished speaker and writer, was born in the State of Kentucky, in 1807. He came to Washington in 1859 to accept the position of Postmaster General in the cabinet of President Buchanan. Later he became Secretary of War in the same cabinet, and remained until the inauguration of President Lincoln. In 1864 he was appointed Judge Advocate General of the Army of the United States, from which he retired in 1875. He continued to reside in Washington after his retirement. He had been twice married, but had no children. His first wife, Mary Harrison, who died in 1846, ■was the first cousin of Elizabeth Hynes, one of the legatees of the will offered for probate. In 1850 he married Miss Wickliffe, who died in 1860. She, it appears, was the cousin of the mother of Josephine Holt Throckmorton, the other legatee named in said will. The latter was also the goddaughter of deceased.</p> <p>He had several brothers and sisters, all of whom predeceased him, leaving children who are the appellees herein. One of these, a citizen of Texas, had been living in the city of Washington for several years before his uncle’s decease! others lived in Kentucky, Indiana and Mississippi.</p> <p>Judge Holt lived alone, attended by several servants, who had been some years in his employ. Immediately after his death, the nephew living in Washington, William G. Sterett, went to the house with his wife, and, on the next day, was joined by another nephew, Washington Holt, who lived in Kentucky.</p> <p>Pursuant to directions given them by deceased shortly before his death (as they testified), the servants delivered his private keys to Washington Holt. Search was made by Holt and Sterett among the papers of deceased in the house for a will. They testify that no will was found, and that the only thing of a testamentary nature discovered was an unsigned memorandum of a bequest of “-dollars” to the Washington Humane Society. This had no date, but must have been made after February 13, 1885, as that is recited therein as the date of the act of Congress incorporating said society.</p> <p>It appears that deceased had preserved his papers and letters with great apparent care. They were found in packages carefully endorsed, and there was testimony tending to show that in his last years, when his sight was impaired, he could direct his servants where to find a package that he wanted. Memorandum books were found showing careful entries of trips taken and expenses paid, and one contained entries of daily expenditures.</p> <p>After or during this search for a will, the nephews say that they caused to be burned in the yard, by one of the servants, some old letters to deceased from Washington Holt and his family; and some old newspapers and circulars were burned in the fireplace in one of the rooms of the house.</p> <p>Some days later, at the request of Washington Holt, the Register of Wills searched the house carefully, but found no 'will. An employee of the Register’s office made a search also without success. He saw the evidence of the burning of papers in the fireplace and yard, and suggested the sealing of all papers, which was done.</p> <p>Deceased had a box in the vault in the National Safe Deposit Company of Washington, in which some papers were kept. The trust officer of that company examined these, and found a will bearing date April 9, 1848, and a memorandum on a rough piece of paper as follows:</p> <p>“Humane Society, $1,500.</p> <p>“Children’s Hospital, 4,000.</p> <p>“Lodging House, 1,500.</p> <p>“Emergency Hospital and Dispensary, 1,500.</p> <p>“Associated Charities, 1,500.”</p> <p>No will having been found, on August 17, 1894, Washington Holt, William G. Sterett and John Holt filed a petition for letters of administration, which resulted in the appointment of the National Safe Deposit, Savings and Trust Company, of the city of Washington, as administrator.</p> <p>The paper offered for probate in this case as the last will of Joseph Holt made its appearance in the following manner:</p> <p>It was received by the Register of Wills in the morning mail delivery, August 26, 1895, enclosed in an ordinary envelope of “official” size, together with a piece of pasteboard. There was no other enclosure, and nothing to indicate the source from which the document came. The address — “To the Register of Wills, D. C.” — was in large irregular letters, after the form of print, made with pen and ink.</p> <p>The postmarks on the package indicated that'it had been deposited in one of the many mail boxes situated in the northwest quarter of the city of Washington, and had been delivered at the general postoffice 6 p. m., August 25, 1895.</p> <p>The paper, when received, showed signs of mutilation by burning and tearing; the place where the seal would appear, if affixed as indicated ill the recital of the next to the last line, was roughly torn away. It purports to have been “signed and sealed” on February 7, 1873. There is no attestation clause before the signature of the three witnesses, Ellen B. E. Sherman, U. S. Grant and W. T. Sherman. These follow the name of the testator, with a slight interval between his and the first of them. Ellen B. E. Sherman was the wife of W. T. Sherman, who was then General Commanding the Army of the United States, and U. S. Grant was then President.</p> <p>The paper was tom nearly, if not entirely, across the page between the signature of the testator and that of the first witness. There was testimony tending to show that the separation was complete; but the weight of the evidence tended to show that it was not entirely separated at one end. A photo-lithographic copy of this will, as it then appeared, is found in the record, which fairly represents its appearance and condition, save in respect of the severance of the paper and the mutilation where the seal is supposed to have been. It is here reproduced. [See insert opposite.]</p> <p>No testimony was produced during the trial tending to shed any light upon the mysterious appearance of this will. All the parties disclaimed any knowledge of its existence until the news of its receipt- by the Begister of Wills had been published.</p> <p>The executor, Luke Devlin, filed his petition to probate the instrument as the last will of the deceased, and for letters testamentary on September 20, 1895. The appellees, as next of kin, filed their caveat October 18, 1895, and answer thereto was filed December 2 by Luke Devlin, the executor, and Misses Elizabeth Hynes and Josephine Holt Throckmorton, the two legatees named in the said will.</p> <p>On March 20, 1896, the following issues were made up in the Orphan’s Court and 'transmitted to the special term holding the Circuit Court for trial by jury:</p> <p> </p> <p>“1. Was the paper-writing bearing date the seventh day of February, A. I). 1873, which was filed in this court on the 26th day of August, A. D. 1895, executed by the said Joseph Holt as his last will and testament?</p> <p>“2. Was the execution of said paper-writing procured by fraud exercised and practiced upon said Joseph Holt by any person or persons?</p> <p>“3. Was the execution of said paper-writing procured by the undue influence of any person or persons?</p> <p>“4. If the said paper-writing was executed by the said Joseph Holt as his last will and testament, has the same been revoked by said testator?”</p> <p>The proponents, or caveatees, proved the death of the subscribing witnesses, and then offered testimony tending to establish the genuineness of their signatures as well as that of the testator. Senator John Sherman testified to the genuineness of the signature of his brother, General Sherman ; Col. Frederick Ü. Grant to that of his father, President Grant: and P. Tecumseh Sherman to that of his mother, Mrs. Ellen B. E. Sherman. The latter also testified that Mrs. Sherman usually wrote her name, “Ellen Ewing Sherman;” but that it was her habit to sign legal papers “ Ellen B. E. Sherman,” as it appears on said will. Henry B. Burnett gave his opinion that the body of the will and the signature of the testator were written by Judge Holt.’ The will was then read to the jury. Miss Hynes and Miss Throckmorton each testified that she had not heard of the said will until after its appearance in the office of the Register of Wills. The executor, Luke Devlin, was then examined, and testified as follows:</p> <p>“ That the said paper-writing was never in his possession, and that he first saw it in the office of the Register of Wills on the day it had been received there.” On cross-examination the said Devlin testified that “he knew the said Joseph Holt well since 1862, having been a copyist and messenger at that time in the office of the Judge Advocate General when said Holt succeeded to that office; that he continued to be employed in said office until 1876, when the said Holt retired .therefrom; that he had little communication with him in relation to office matters; that he visited him once or twice at his house; that he was in the habit of meeting him socially at the residence of Mrs. Throckmorton, sr., the grandmother of Miss Josephine H. Throckmorton, from 1865 to 1878; that he had not seen Mrs. Throckmorton, sr., more than four or five times during a period of more than ten years preceding the receipt of the will at the register’s office, and on learning of the existence of the will he had to consult the city directory to ascertain where she then . lived; that on the day the will reached the Kegister of Wills he received a telephone message from the register, went to his office, and saw the will for the first time; then called on Mrs. Throckmorton, sr., and on the same day he telegraphed Miss Josephine H. Throckmorton of the finding of the will, having first learned the address of her father upon inquiry at the War Department; that he called on several occasions in later years at said Holt’s house and was informed by the colored servants that he was out or that he was engaged, and asked witness to call again, the last of these visits being about April 9, 1894, shortly before his death; that he met said Holt outside on several occasions, the last of which was about two years before his death, and conversed with him.”</p> <p>Caveatees then announced that their prima facie case was closed. Counsel for the caveators objected that it was incumbent upon the caveatees to introduce all the testimony essential to the establishment of the will before they shouid be called upon to reply. The court ruled that because of the fact that there was no attesting clause to the will, it was proper and necessary for the caveatees to offer all the evidence they proposed to offer upon the subject of the genuineness of the signature of Joseph. Holt. Caveatees acquiesced in this ruling as within the discretion of the court, and offered a number of witnesses, who testified to familiarity with the handwriting of the testator, and expressed the opinion that he wrote the body of the will and the signature thereto.</p> <p>Caveators introduced a number of witnesses, also familiar with testator’s handwriting, who testified that in their opinions the will and signature of the testator were not genuine.</p> <p>One witness, who had been a clerk in the War Department for thirty years, expressed the opinion that the signatures of President Grant and General Sherman were not genuine.</p> <p>Three experts in handwriting expressed the opinion that the signature of Mrs. Sherman was not written by her. These were contradicted by an equal number of experts on behalf of the caveatees. A great many genuine letters and documents written by deceased were read in evidence and exhibited to the jury. Among these was his own will, dated April 9, 1848, and one written by him for Miss Hynes about January 1, 1886.</p> <p>Testimony -was offered by the caveators of declarations made by testator, after the date of the said will, tending to show his feelings, sentiments and conduct in relation to his next of kin and to the father and grandmother of Miss Throckmorton, as well as his intentions in respect of the disposition of his estate. This evidence was all objected to by the caveatees, and exceptions were taken to its admission. Caveatees also introduced evidence tending to show intimate and affectionate relations between the testator and Misses Hynes and Throckmorton, the legatees. He had made regular gifts of money to the former for years, and in 1884 gave her $10,000 in 6 per cent, bonds of the District of Columbia.</p> <p>No evidence having been introduced in support of the second and third issues, relating to the procurement of the execution of the will by fraud and undue influence, the court instructed the jury to return the answer “no” to each.</p> <p>The jury returned a verdict answering “no” to the inquiry whether the will was executed by Joseph Holt.</p> <p>To the fourth question, whether Joseph Holt had revoked the said will, if in fact executed, the jury answered “no, because it was not executed.”</p> <p>The findings of the jury were duly certified to the Orphans’ Court, and in accordance therewith, on July 10, 1896, the order was made denying probate.</p>

<p>Hearing on an appeal by the defendant from a judgment on a verdict directed by the court in an action for libel.</p> <p>The Court in its opinion stated the case as follows:</p> <p>The appellant, Theodore Iiuysman, as plaintiff, on April 26, 1886, filed in the Supreme Court of the District of Columbia, his declaration at common law against the appellee, The Evening Star Newspaper Company, as defendant, a corporation in the District, for an alleged libel published by it in the Evening Star newspaper. There was no summons issued under the declaration, no service of any process upon the defendant, and, of course, no return of service. In fact, nothing whatever appears to have been done beyond the mere filing of the declaration, which itself was after-wards taken out of the office of the clerk of the court by the attorney who filed it, as was then allowed to be done upon his giving his receipt therefor; and this attorney subsequently died without having returned the declaration to the clerk’s office, and the declaration itself was never thereafter found.</p> <p>The plaintiff, who had become an inmate of the Soldiers’ Home, it is said, did not know of his attorney’s death until several years after that event, and supposed that his case was proceeding in the regular course. He then employed new counsel, petitioned the court through such counsel for leave to file a substitutive declaration, which was granted,— all of which was done ex parte, apparently, without any notice to the defendant or any knowledge by it of the proceeding. And on July 11, 1895, upwards of nine years after the filing of the original delaration, the substitutive declaration was filed, which is conceded by the courtesy of the counsel for the defendant to state substantially the same cause of action as the original declaration.</p> <p>Summons was duly issued and served under this substitutive declaration, and the defendant appeared and pleaded the general issue and the statute of limitations. At the trial the court instructed the jury to render a verdict for the defendant, on the ground that the action was barred by the statute of limitations, to which ruling the plaintiff duly excepted. From the judgment rendered upon the verdict, the plaintiff has appealed to this court.</p>

Hearing on an appeal by the defendant from a judgment on verdict in an action to recover damages for personal injuries.