Volume 13 — Appeals, District of Columbia

Hearing on an appeal by the defendant from a judgment on verdict in an action on the case for an alleged deceit. The Court in its opinion stated the case as follows: This is an action on the case for alleged deceit, instituted-by the appellee, the National Capital Bank of Washington, the plaintiff below, against the appellant, Horatio Browning. The declaration contains three counts, varying the statement of the one and same cause of action.

<p>Hearing on an appeal by the complainant from a decree in a suit for the construction of a will.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is an appeal from a decree construing the will of the late Frederick Douglass, who died in the District of Columbia, February 20, 1895.</p> <p>The will was attested by two subscribing witnesses, and was duly probated in the Orphans’ Court. It reads as follows:</p> <p>“I, Frederick Douglass, of'Anacostia, District of Columbia, United States of America, being of sound disposing mind and memory, do make, publish and declare this to be my last will and testament: That is to say, in form and manner following: First, I give and bequeath to my dear devoted wife, Helen Douglass, my house and fifteen acres of land situated in Anacostia, D. C., with all outbuildings and appurtenances thereunto pertaining: Second, I give and bequeath to the said Helen Douglass, all my writings, books, papers, pictures, paintings, horses, carriages, harness, and each and every description of property in and about my house in Anacostia, except a certain portrait of myself, painted more than forty years ago by Mr. Hammond, of Florence, Massachusetts, which portrait I give and bequeath to my daughter, Rosetta D. Sprague: Third, I give and bequeath to the said Helen [Douglass ten thousand dollars in registered United States bonds, and ten thousand dollars in lawful money, the latter to be derived from my other property not mentioned in the foregoing: Fourth, I give and bequeath to my daughter, Rosetta D. Sprague, and to my three sons, Lewis, Frederick and Charles, the remainder of all property of which I shall be possessed at my death; that is to say, to each of them one equal share, which will amount to about fifteen thousand to each:</p> <p>“In witness whereof, I have set my hand and affixed my seal this thirtieth day of August, in the year one thousand eight hundred and eighty-six.</p> <p>“Fjred’k Douglass, [l. s.]”</p> <p>This will was written by the widow, Helen Douglass, from the dictation of the testator. At that time he was the owner of registered United States bonds of the face value of $10,000. Subsequently, these bonds were sold by the testator and their proceeds otherwise invested. The said Helen Douglass filed this bill against the children of the testator, praying for a construction of the third clause of said will, declaring the bequest to her of the “ ten'thousand dollars in registered United States bonds” to be a general and not a specific legacy; and for an order requiring the satisfaction thereof from the general assets of the estate, which were ample for all the purposes of the will and of administration.</p> <p>The court, construing the legacy to be specific, decreed “that said legacy was adeemed and destroyed by the sale of the said bonds; that in making distribution of the personal estate of said deceased the administrators, with the will annexed, shall ignore said legacy and make such distribution as if such legacy were not contained in said will.” The bill, so far as it prayed satisfaction of said legacy, was dismissed, with costs, to be paid out of the funds in the hands of the administrators; but the cause was retained for the purpose of completing the distribution of the personal estate under the direction of the ■ court.</p> <p>From that part of the decree construing the will and dismissing her bill, the complainant has appealed.</p>

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

Hearing on an appeal by the respondent from a judgment ordering a writ of mandamus to issue against the treasurer of the United States. The Court in its opinion stated the case as follows: This is an appeal from a judgment ordering a writ of mandamus to issue to the appellant, Ellis H. Roberts, as Treasurer of the United States and ex officio Commissioner of the Sinking Fund of the District of Columbia.

Hearing on an appeal by the plaintiff from a judgment on a verdict directed by the court in an action of trover.

<p>Hearing on an appeal by tbe complainants from a decree sustaining a demurrer to and dismissing a bill to establish a will and to perpetuate testimony.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is a suit in equity instituted in the Supreme Court of the District of Columbia, for the purpose of establishing a will and perpetuating testimony.</p> <p>It appears from the record before us that one Elizabeth C. Earhart, who died on March 7, 1897, in tbe city of New Orleans, in the State of Louisiana, which was her place of residence, left a last will and testament, executed in tbe city of Washington, in tbe District of Columbia, on September 29, 1890, and a codicil thereto, executed at the city of Ashe-ville, in tbe State of North Carolina, on August 22,1892 ; that the will and codicil were both executed in such manner as to convey real estate in the District of Columbia; that the testatrix, besides wearing apparel and other personal articles, stated to be of the value of not more than $100, died seized and possessed of an estate consisting both of real and personal property; that the personalty consisted of promissory notes to the amount of $3,000, executed in the city of Washington by residents thereof and secured upon real estate therein, and that the real estate consisted of a valuable lot of ground in the city of Washington, improved by a store and residence thereon. By the will two legacies were given, one of $1,000 to the appellee, Carter Earhart, a grandson of the testatrix, which was to be paid to him within twelve months after her decease, and another of $5,000 to her granddaughter, the defendant, Jessie Ross, which amount, as the legatee was an infant, it was prescribed should be invested by the executrices of the will as soon as practicable, and the interest applied to her education and accomplishment, and the principal to be paid to her when she became of age; and all the rest and residue of her estate, real, personal and mixed, was devised and bequeathed to the two youngest daughters of the testatrix, Ada G. Readman and Jessie E. Ross, who were also named as executrices of the will without bond. The codicil, executed at Asheville, enlarged the legacy to Jessie Ross from $5,000 to $10,000, but otherwise reaffirmed the will.</p> <p>Upon the death of the testatrix, the will and codicil were on May 11, 1897, filed in the office of the Register of Wills for the District of Columbia, and proceedings were instituted for their probate. A delay, however, was had at the request of counsel for one of the appellees, Mrs. Virginia B. Ferguson, who seems to be another daughter of Elizabeth C. Earhart, and who denied the validity of the will and codicil; and no further steps appear to have been taken for the purpose of such probate. But subsequently Virginia B. Ferguson and a son of the deceased, Ferdinand B. Earhart, instituted proceedings in the courts of the State of Louisiana for the grant of administration on the estate of the decedent as in case of intestacy; and these proceedings, which, according to the laws of that State, seem to have embraced alike the personal and the real estate, were pending at the time of the institution of this suit and at the time of the rendition of the decree therein, although we are advised by the brief of the counsel for the appellants that quite recently, on April 4, 1898, they have been terminated adversely to the contention of the parties who instituted them, by a decree of the Supreme Court of the State of Louisiana, which held, consistently with the universal rule in such matters, that the courts of the State of Louisiana were without jurisdiction to determine the validity of a will of real estate in the District of Columbia.</p> <p>Thereupon, on September 3, 1897, the appellants, Ada G. Readman and Jessie Earhart, as executrices under the will, and also as trustees, filed their bill in equity in this cause, in which, after statement of the foregoing facts, and admitting the probable invalidity of the-will as a will of personalty under the laws of the State of Louisiana, the place of domicil of the deceased, by which such invalidity was to be determined, they allege the validity of the instrument for the purpose of the conveyance of real estate, and ask the direction of the court as to the payment of the legacies mentioned, and whether and to what extent they were a lien or charge upon the real estate of the decedent. And the prayers of the bill, after the prayer for process, were that the testimony of the attesting witnesses to the will and codicil should be taken in perpetuum rei memoriam, that the will should be established as the last will and testament of Elizabeth C. Earhart, and for general relief. A copy of the will and codicil was filed with the bill of complaint.</p> <p>The defendants to the bill were the four children of Elizabeth C. Earhart (including the two complainants in their individual right), who were her heirs-at-law and next of kin, and her two grandchildren, legatees under the will. Only Virginia B. Ferguson appeared, and she filed a demurrer to. the bill. The demurrer was sustained by the court below, and the complainants preferring a dismissal of the bill without prejudice to leave to amend, the bill was accordingly dismissed, without prejudice. From the decree of dismissal the complainants have appealed to this court.</p>

<p>Hearing on an appeal (specially allowed) by the plaintiff in an action of replevin from an order suspending the execution of the writ.</p> <p>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. The facts are sufficiently stated in the opinion.

Hearing on an appeal from tbe decision of the Commissioner of Patents in an interference proceeding. 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.</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>

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 by a defendant indicted for and convicted of murder. STATEMENT OE THE CASE.

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

Hearing on an appeal by a defendant indicted for and convicted of murder. The facts are sufficiently stated in the opinion.

Hearing on an appeal (specially allowed) from an order referring the cause in which it was made, to the auditor to state an account between the parties.

Hearing on an appeal by tbe defendant from a decree granting the prayer of a bill to remove cloud from title. Tbe facts are sufficiently stated in tbe opinion.

<p>Hearing on an appeal by the defendant from a judgment under the Seventy-third Rule o'f the Supreme Court of the District of Columbia, for want of an affidavit of defense, in an action of assumpsit.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by the defendant from an order overruling a motion in arrest of judgment in an action to recover damages for personal injuries.</p> <p>• The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal by several defendants from a decree construing certain provisions of a last will and testament. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the complainants from a decree sustaining a demurrer to and dismissing a bill of inter-pleader. The Court in its opinion stated the case as follows: This is an appeal from a decree dismissing a bill of inter-pleader. The bill was filed by Joseph Richardson and James A. Burgess against the following defendants: Robert V. Belt and T. Percy Myers, administrators of the estate of Zeplianiah Jones, The Washington Brick Company, and James H. McGill.

<p>Hearing on an appeal by defendants from a decree dismissing a bill of interpleader.</p>

Hearing on an appeal by the defendants from a decree for the complainant in a suit to enforce an alleged lien under a writing obligatory against real estate in the hands of third persons.

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

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.

<p>Hearing on an appeal by the complainant from a decree sustaining a demurrer to and dismissing a bill to have a vendor’s lien declared and enforced against certain real estate.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by the defendants from a decree in a suit by the beneficiary named in a certificate of membership in a mutual benefit association, to have the deceased member reinstated as of the time of his death, and for payment to her of the amount of the benefit.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on a motion to dismiss an appeal by the respondent, a justice of the peace, from an order directing a mandamus to issue to compel him to consider the sufficiency of an undertaking on appeal.

<p>Hearing on a motion to dismiss an appeal from an order allowing an amendment to a declaration.</p>

<p>Hearing on an appeal by the plaintiff from an order dismissing his suit for failure to amend or pay costs, after leave granted to amend upon payment of costs of the term.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by the complainant from a decree sustaining a demurrer to and dismissing a creditor’s bill.</p> <p>The Court in its opinion stated the case as follows:</p> <p>The appellant, the Supplee Hardware Company, is a corporation of the State of West Virginia, doing business in Philadelphia, Pa., and appeals from a decree dismissing its bill, for want of jurisdiction in equity.</p> <p>The bill alleges that on January 20, 1897, the defendant, Louis L. Driggs, and one John Woerner, jr., were partners, ■doing business in the District of Columbia under the name of the Enterprise Cycle Company, and as such became indebted to the plaintiff in the sum of $592.63, for which they ■executed notes, with others, and in the further sum of $2,275.65 on account of goods consigned by plaintiff to them und sold on its account.</p> <p>Actions at law were' instituted in the District aforesaid on October 15,1897, on the said notes and account respectively. Process in said suits was duly issued, but could not be served upon the defendant Driggs, because prior to their institutioh the partnership had been dissolved, the assets disposed of, ■and said Driggs had removed to the State of New York, where he has continued to reside.</p> <p>It is further alleged that said John Woerner, jr., “is insolvent and has no property out of which a judgment could be made, and the defendant Driggs has no property here, in New York, or elsewhere subject to legal process, by way of attachment or otherwise, and to that extent is insolvent also; nor has he any property anywhere that can be reached by the aid of a court of equity, except an equitable interest in certain real estate lying and being in the District of Columbia and hereinafter described.”</p> <p>This is followed by a description of certain lands that had been conveyed to trustees by said Driggs, to secure certain indebtedness. The validity of these conveyances is not attacked, but the trustees and beneficiaries therein are called upon to disclose the several sums actually due, and sale of the equitable interest of said Driggs in the said lands is prayed for the satisfaction of complainant’s demands.</p> <p>Driggs appeared, without service of process, and entered a demurrer upon which the bill was dismissed.</p>

Hearing on an appeal by the complainant from an order sustaining a demurrer to and dismissing a bill for an injunction to restrain the Secretary of the Interior from disposing of certain lands in the State of Oregon, as part of the public-lands of the United States. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the plaintiff from a judgment on verdict in an action on a promissory note. The Court in its opinion stated the case as follows: This action was brought on the 12th of September, 1884, by William B. Bowie, since deceased, against the appellee,as endorser, to recover the balance due on a certain promissory note, made by Hall and Hume, and endorsed by the defendant.

<p>Hearing on an appeal by the plaintiff from a judgment on verdict in an action to recover damages for personal injuries.</p> <p>The Court in its opinion stated the case as follows:</p> <p>The appellant, Julia Houser, was a passenger on one of the appellee’s street cars, and was hurt in attempting to alight therefrom on the 4th day of July, 1894. She testified as follows concerning the cause of her injuries:</p> <p>“ When she approached the corner of Twenty-fourth Street she rang the car bell, and the car was stopped, and that as she was standing in the car, but near its side, and was about to step from the body of the car to the running-board, with an infant in her arms, while the car was stopped, the conductor jerked the bell, the car started, and that she was thereby thrown violently to the ground.”</p> <p>The bill of exceptions recites that:</p> <p>“ She further gave evidence tending to prove that at the time of the accident she was standing upon the step of the car, with the baby in her arms, while the car was stopped; that she did not have hold of the car, and that while she was in the act of alighting the car whirled her around and threw her, head northwards, on her back, and that she then had the baby in her arms.”</p> <p>John H. Thomas, a witness for the plaintiff, in the course of his evidence concerning her movements, said: “When I get off a car I catch hold of it this way (indicating); when women get off they don’t catch hold of anything; they just go straight off like that (indicating). She got off, and when he put the grip on the car gave a snatch and throwed her, head northwards.”</p> <p>Upon this evidence, with that showing the character of the injuries received, the plaintiff rested her case.</p> <p>Defendant introduced a number of witnesses, employees, and others, apparently passengers upon the same car, who gave evidence tending to show that “the car stopped at Twenty-fourth Street long enough to afford her (plaintiff) and other passengers a reasonable opportunity to alight; that the plaintiff, while the said train was stopped, did not attempt to alight or in any way give notice to the defendant’s agents in charge of said train that she wished to alight at that point, but that after the train had started, and while it was in motion and going, as some of the defendant’s witnesses testified, at or near half speed, and as others of them testified, while it was just starting, but was at each second acquiring -a constantly accelerated motion, the plaintiff, Julia Houser, arose, and, as some of the witnesses testified, walked to the edge of the car on the north side thereof, took hold of the post or pillar on her right side with her right hand, holding an infant child in her left hand, and then stepped to the running "board or to the ground, with her back toward the direction in which the car was moving, and in that position she attempted to step from the car while it was in motion, as aforesaid.”</p> <p>Some of the witnesses testified that the plaintiff was about the center of the car seat—an open car with running-board or step running its entire length—and others that she wras at or near the end next to the post to which the handlebar is attached. The conductor testified that after the car had started at Twenty-fourth Street the plaintiff “ raised her hand, kinder motioned like she wanted to get right off there, and I thought she would get off, and that’s why I gave the danger signal. She kinder moved herself along that way in the seat (indicating), and I thought she was going to get off, and I gave the danger signal to prevent it. ... I immediately gave the danger signal and turned to put on the /brakes. The train had just got under motion when this woman gave the signal to me that she wanted to get off. After I gave the danger signal and put on the brakes, the next thing I saw was this woman falling from the car.”</p> <p>Upon this evidence, submitted with a general charge, the jury found for the defendant.</p>

<p>Hearing on an appeal by the complainant from a decree dismissing a bill of review.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This cause comes to us on appeal from a decree of the Supreme Court of the District of Columbia; dismissing a bill of review.</p> <p>It appears from the record that, on May 25, 1877, the appellant, Belle Alexander, as complainant, instituted proceedings in the Supreme Court of the District of Columbia for a divorce from the bond of matrimony then subsisting between herself and the appellee, Thomson H. Alexander; and that such proceedings were thereafter had as resulted in a decree of that court adjudging that the marriage should be dissolved, and that alimony at the rate of fifty dollars a month should be allowed to the complainant. This decree was rendered on July 11, 1877. It contained this clause in reference to the alimony: “The allowance thus made being without prejudice to the right of the complainant to apply for the increase thereof after the said first day of January, 1878.” There was no reservation of right to the defendant to apply for a reduction of the alimony at any time.</p> <p>On February 15, 1878, it would appear that the alimony was in arrears and unpaid; and the complainant petitioned the court for an order to compel its payment. This order the court made.</p> <p>On May 19, 1878, the defendant petitioned for a suspension of the alimony; and on November 16, 1878, an order of the court was entered by consent for the suspension of payment until it should be shown to the satisfaction of the court that the defendant’s pecuniary circumstances had so far improved as to justify the resumption of payment.</p> <p>On March 10, 1885, the complainant petitioned for a renewal of the payment of the alimony, and that the amount should be increased to the sum of $200 a month; whereupon the defendant came in with an answer and a counter-petition praying for a revocation of so much of the original decree of July 11, 1877, as allowed alimony. Under these petitions testimony was taken, and there was finally an order or decree made merely denying the complainant’s petition. And apparently there was no action on the defendant’s application. Upon appeal taken by the complainant from this order to the general term of the court, the order was reversed, and a decree was rendered by the general term, on May 20, 1892, to the effect that the suspended alimony should be paid by the defendant at the rate of fifty dollars a month from and after April 15, 1890; and, beginning with the date of the decree, alimony thereafter at the rate of fifty dollars a month. The decree contained the following clause: “This decree is without prejudice to any right the said defendant may have in law to apply for a suspension or reduction of alimony for any causes that may arise after the date of this decree.”</p> <p>Availing himself of the benefit of this last clause, the defendant, on October 17,1892, petitioned the court to reduce the alimony from fifty dollars to twenty-five dollars a month, on the ground of his alleged inability to pay the former amount. After answer by the complainant, the court, on December 3, 1892, entered an order for the reduction as prayed. From this order no appeal was taken; and no further proceedings seem to have been had for about five years.</p> <p>On December 17, 1897, the defendant filed a petition stating that through misapprehension, resulting from apparent ignorance that there had been a reduction of the alimony at his own solicitation, he had overpaid the amount due the complainant to the extent of $650, and asking for a suspension of the alimony for two years and two months, which would serve to rectify the alleged mistake. There was then, on motion by the complainant, a rule issued on the defendant to show cause why he should not be required to pay arrears; and the complainant also filed a petition for an increase of the alimony. After answers to these several petitions, the whole matter was referred to the auditor of the court. That officer made a report, and there were exceptions to the report. Finally, on March 3, 1898, a decree was made adjudging that the defendant should pay to the complainant the alimony allowed by the order or decree of December 3, 1892, from the date of the last jpayment to March 20, 1898, at the rate of twenty-five dollars a month, and from and after the last-mentioned day, alimony at the rate of thirty dollars a month. The' defendant appealed' from the decree to this court; but how far the appeal has been prosecuted does not appear. The complainant, apparently, did not appeal.</p> <p>In this condition of things, the complainant, on April 7, 1898, filed the present bill of review, in which the foregoing facts are stated. The complaint of this bill is that all the orders and decrees passed in the cause subsequent to the original decree of July 11, 1877, which, in any way alter or affect such original decree, especially in as far as these orders of decrees reduce the alimony allowed by the original decree, are utterly null and void, on the ground, as claimed, that the original decree had become an absolute finality beyond the power of the court to change in any manner, except, upon the petition of the complainant, to increase the amount of the alimony. And it is charged especially that the last order or decree in the case, that of March 3, 1898, is erroneous in so far as it fails to conform to the original decree in the matter of alimony. The prayer of the bill is, that the decree of March 3,1898, be reviewed and canceled as to this matter of alimony, and that the decree of July 11, 1877, be renewed.</p> <p>The defendant, on. May 3, 1898, demurred to the bill of review on the general ground of want of equity; and, also, on June 1, 1898, by leave of the court had on that day, without waiving his demurrer, filed two pleas to the bill, which were to the effect that he had paid to the complainant, under the decree of March 3,1898, all the alimony which had become due and payable, both before and after the filing of the bill of review. The apparent purpose of these pleas was to show that the complainant had acquiesced in the decree of March 3, 1898; and that by such acquiescence he was now estopped from repudiating that decree.</p> <p>The complainant excepted to the pleas, and moved to strike them from the record; but the exceptions and the motion were both overruled on June 7, 1898. Then, on June 9, 1898, a final decree was entered, which is in the following terms:</p> <p>“ The above-entitled cause came on for hearing on the bill of review filed by the complainant and the demurrer of the defendant filed thereto, and also upon the pleas of the defendant filed thereto with leave of the court, and the same having been duly argued by counsel of the respective parties, and duly submitted to and considered by the court, it is, this 9th day of June, A. D 1898, adjudged, ordered and decreed that said bill of review be, and the same is hereby, dismissed with costs against said complainant, for which defendant have execution as at law.”</p> <p>From this decree, and also from the order overruling the exceptions to the pleas, and denying the motion to strike the pleas from the record, the complainant has now appealed to this court, and has presented six assignments of error, four of which have reference to the action taken by the court in regard to the defendant’s pleas, and two to the dismissal of the bill of review and the sustaining of the defendant’s demurrer thereto.</p>

Hearing on an appeal by the plaintiff from a judgment on verdict in an action upon a building contractor’s bond. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the defendant from a judgment under the Seventy-third Rule in an action on a promissory note. 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 personal injuries.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is an appeal from a judgment rendered in the Supreme Court of the District of Columbia in favor of the appellee, Charles M. Hammett, in pursuance of a verdict of a jury for the sum of $1,500 against the appellant, the Metropolitan Railroad Company, in a suit instituted by the appellee to recover damages for personal injuries sustained by him through the alleged negligence of the agents and employees of the appellant.</p> <p>On the evening of September 17, 1897, about 7 o’clock, one of the cars of the appellant, propelled by electricity, and with a trailer attached, going north on Ninth street west, in this city, struck, at the intersection of Ninth street west and P street north, a car of the Belt Line Railroad Company drawn by horses, which was going west on P street, and was in the charge of the appellee as driver. The Metropolitan motor car struck the Belt Line car about its center with so much force as to push the latter northward along the Metropolitan track about seventy feet, and to break the running-board and one of the uprights at the sides of the ■car ; and several of the passengers on the Belt Line car were injured, some of them quite seriously. Among those injured was the driver, the appellee, who was standing at his post on the front platform of his car when the collision occurred, and who was thrown into the street and thereby received the injuries of which he complained in this case.</p> <p>In regard to the circumstances of the accident there seems to have been at the trial no very material difference of statement. At all events, whatever difference there was is here of no consequence; since, for the purpose of the questions of law now raised, the account given by the appellee and his witnesses must be assumed to have been true. According to this statement, the appellee, who had previously been a driver- for the Metropolitan Railroad Company, apparently before the change of motive power then recently made, and who had been in the service of the Belt Line Company only a few days, the day of the accident being the first on which he had full charge of a car as driver, and the trip being his third trip for that day, was driving his car westward on P street about dusk of the evening of the day mentioned, and had reached nearly to Ninth street. As he arrived about the building line of Ninth street he heard a bell on a car which he supposed to be at the intersection of 0 and Ninth streets, 300 feet to the south of him, between which point and the intersection of P and Ninth streets there is a perceptible downward grade. As he came out even with the sidewalk or curbstone on Ninth street he looked to the southward and saw the Metropolitan car about one-third of the way, that is, 100 feet, as he testifies, north of 0 street, which would make it about 200 feet south of where he was. He then looked to the north and saw no car within sight in that direction. What he did then he states as follows:</p> <p>“There was no car in my way, so I continued right on. When I got up to the [Metropolitan] track, or when my horses’ heads were to the track, I looked back and saw the car coming, and it seemed to me it was getting very close, coming at a great rate of speed, and of course I struck my horse one lick with the whip and started across—continued right on across. When I got across—that is, my car half way—this car struck me; this is the last I know.”</p> <p>This testimony- was not greatly, if at all, modified upon cross-examination, and it was substantially corroborated by the plaintiff’s witnesses. On the other hand, the testimony-given by the defendant’s witnesses tended to show that the Metropolitan car was not running at an unusual rate of speed, and that the plaintiff had given some indication of an intention to stop his car, whereby the motorman of the Metropolitan car was induced to proceed on his way.</p> <p>Certain measurements were also introduced in evidence, as that the distance on Ninth street between the building line of 0 street and the building line of P street is 300 feet; that the distance at Ninth street from the east building line of P street to the curbstone is 17.10 feet; that the' distance from the building line just mentioned to the east rail of the Metropolitan track is 35.23 feet; that the distance from the curbstone to this east rail is 18.13 feet; that the distance from the building line to the west rail of the Metropolitan track is about forty feet; that the length of the Belt Line car was' about eighteen feet; that the distance from the horses’ heads to the dashboard was about nine or ten feet; and that therefore the whole distance from the horses’ heads to the end of the car was about twenty-eight feet. These measurements were introduced for the purpose of- showing that it was negligence on the part of the plaintiff, under the circumstances, to attempt to drive his horses and car across the Metropolitan track in front of defendant’s electric car approaching on that track.</p> <p>At the conclusion of the testimony instructions to the jury were requested by both parties; and to the rulings of the court thereon the defendant reserved exceptions, and these exceptions have been made the basis of assignments of error. But the only question raised before us in the brief and argument of counsel is as to the alleged contributory negligence of the plaintiff. The negligence of the defendant is practically conceded; but it is claimed that the plaintiff was guilty of contributory negligence, which caused or contributed to cause the accident, and that, therefore, he is not entitled to recover. And the contention further is, that his conduct was negligence in law, for which the court should have peremptorily directed a verdict in favor of the defendant. The instruction requested by the defendant, which is the basis of the assignment of error now relied upon by it, is as follows:</p> <p>“The jury are instructed that upon the whole evidence,, that offered on behalf of the plaintiff as well as that offered on behalf of the defendant, the plaintiff can not recover in this action, and their verdict must be for the defendant.”</p> <p>This instruction the court refused to give, and submitted to the jury upon the facts both the question of the negligence of the defendant and that of the alleged contributory negligence of the plaintiff, under instructions, of the substantial correctness of which no complaint is now made; and the jury returned a verdict for the plaintiff for the sum of $1,500, on which judgment was rendered in his favor. From this judgment the defendant has appealed.</p>

<p>[This case was taken by writ of error to the Supreme Court of the United States, and by that court affirmed on January 23, 1899. 172 U. S. 576.—Reporter.]</p>

Hearing on an appeal by the defendant from a judgment under the Seventy-third Rule in an action of assumpsit upon an account stated. The Court in its opinion stated the case as follows: This is an appeal from a judgment entered upon the motion of the plaintiff under Rule 73 of the Supreme Court of the District of Columbia. The action of assumpsit upon an account stated was brought in the name of Anne W. Frazer, to the use of C. H. H. Sherman, her assignee.

<p>Motions by the appellees in two appeals from the same decree to dismiss the appeals.</p>

Hearing on an appeal by tbe caveators from an order of the Orphans’ Court admitting a will to probate, after trial by jury of issues framed upon a caveat.

<p>Hearing on an appeal by the defendant from a decree in a suit to recover money paid for stock and stock options through alleged fraudulent representations.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal by the respondent from an order of the Orphans’ Court requiring money to be paid into court, upon the petition of a creditor of a decedent. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the caveators from an order admitting a will to probate after trial of issues certified for trial by jury. Tbe facts are sufficiently stated in tbe opinion.

<p>Hearing on an appeal by the United States, as intervenors, from a decree in a suit to establish an equitable lien upon an undivided one-half interest in the stock and fixtures of a drug store.</p> <p>The Court in its opinion stated the case as follows:</p> <p>The original bill in this case was filed April 13,1897, by John C. Groome against Wm. F. Rosborough and Frederick S. Coburn to establish an equitable lien upon an undivided half-interest in the stock and fixtures of a drug store known as the Mount Vernon Pharmacy.</p> <p>John C. Groome, then.sole owner, sold an interest of one-half to William F. Rosborough on March 26,1896, for the sum of $2,500, to be thereafter paid. For this sum Rosborough delivered a note for $1,000, due at twelve months, payable to the order of and endorsed by Wilkinson Call; and executed and delivered certain other notes, payable to the order of Groome, as follows: Two for $125 each, due respectively in six and twelve months; six for $150 each, due respectively in eighteen, twenty-four, thirty, thirty-six, forty-two and forty-eight months; two for $175 each, due respectively in fifty-four and sixty months. On the same day Groome and Rosborough executed articles of partnership to continue in force five years. These recite the terms of the sale aforesaid, and that “the stock, fixtures and business, jointly owned by them as aforesaid, and all profits therefrom and additions 'thereto, shall be the common stock and property of the partnership.” They further declare the undivided half-interest of Rosborough “subject to a vendor’s lien in favor of John C. Groome, to the extent of the unpaid portion of the stipulated purchase-money, should default be made in the payment of any of said promissory notes. Provided, however, that said vendor’s lien shall not be subject to enforcement unless and until six hundred dollars of said purchase-money shall be overdue and in default.”</p> <p>'It was further stipulated that Rosborough should give his entire time to the conduct of the business, whilst Groome was permitted to do so or not at his discretion. It was also stipulated “that the receipts from said business shall be first applied to the current expenses thereof, including rent, clerk hire and incidentals, payment of debt on soda fountain, and keeping up the stock of said business, and the payment of twelve dollars per week to the said Rosborough for his personal use, in consideration of his personal attention to said business.” The profits were to be divided equally, “provided, however, that said Rosborough’s share of said profits shall be applied to the payment of his indebtedness herein set forth until the same shall be fully paid and satisfied.”</p> <p>There was a further provision that in case of the death of one copartner, the value of his interest should be appraised in a manner provided, and paid to his representatives.</p> <p>The business was conducted by Rosborough under his agreement until about December 1,1896, and went on badly. Partnership debts had accumulated, and nothing had been paid on the indebtedness to Groome. About November 13, 1896, Rosborough and Coburn entered into correspondence with Groome, who was then living at Carlisle, Pa., looking to the purchase by Coburn of Groome’s interest, and a partnership between him and Rosborough. On November 30, 1896, Groome executed a contract of sale to Coburn and the same was executed by Coburn on December 4, 1896. This instrument recited a consideration of $1,331.56, payable as follows: $525 in notes of Coburn, one for $50 payable in sixty days, one for $50, payable in four months, and one for $425 payable fourteen months after date; the remainder in the assumption by Coburn of one-half of the partnership debts of Groome & Rosborough, the several items of which were recited.</p> <p>Coburn went into possession under this contract of sale, and a contemporaneous partnership agreement with Rosborough. On January 7, 1897, Rosborough sold out to Coburn. His notes to Groome and that endorsed by Call, which subsequently went to protest, remained wholly unpaid.</p> <p>' The foregoing facts alleged in the bill are admitted or stand undenied. The bill further alleges that, in connection with the said sale to Coburn, and his entry into partnership with Rosborough, “it was agreed between the parties that Rosborough should execute a deed of trust on his undivided one-half interest in the said business, including therein the stock in trade, fixtures, good will, etc., to secure the payment of the notes given by the said Rosborough;” that this was to be executed and delivered simultaneously with the contract of sale between Groome and Coburn; that by fraudulent representations Coburn secured the prior delivery of the said contract of sale; and that thereafter Ros.borough refused to execute the said deed of trust.</p> <p>Coburn and Rosborough made sworn answers to the bill denying the foregoing allegations, and averring that, in making the purchase from Groome, Coburn had expressly refused to permit the execution of the trust deed desired by Groome, and had entered into the contract with that understanding.</p> <p>On February 21, 1898, the United States, through the district attorney, filed a petition in intervention, alleging that, on August 31, 1897, they had recovered a judgment against defendant Coburn in the Supreme Court of the District of Columbia, for the sum of $4,200; that execution thereon had been levied upon the entire stock of goods in controversy; and they prayed to be admitted to contest the lien claimed by Groome. It appeared by stipulation in the cause that the stock so seized was sold by the marshal, upon the agreement of all parties, free from all liens; the proceeds to be paid into the registry of the court and there held to abide the result of the suit. The goods were sold by the marshal for the gross sum of $1,800.</p> <p>The learned justice who presided on the hearing being of the opinion that the agreement to execute the lien had been proved, entered a decree in favor of the complainant for one-half of the proceeds of the sale, less the sum of $82.08, or one-half the costs of the sale by the marshal. The United States obtained a severance and appealed from the decree.</p>

<p>Hearing on appeals from judgments upon verdicts in two actions of assumpsit, consolidated and tried together, the ap- . pellant being plaintiff in the court below in one action and defendant in the other.</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 for libel, and from an order overruling a motion in arrest of judgment. ' The Court in its opinion stated the case as follows: This is a suit for libel, in which upon trial in the Supreme Court of the District of Columbia, there was a verdict rendered for the plaintiff, Norma W. Jones, here the appellee, in the sum of. $3,000, and thereupon judgment from which the defendant, Walter H. Wills, has…

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.

<p>Bonds; Public Works; Act op August 13, 1894.</p> <p>L The act of Congress of August 3,1894 (28 Stat. 278), providing that • every contractor with the United States for the erection of any public building or work, shall execute a bond with sureties, conditioned upon the prompt payment of all persons supplying him with labor and material in the prosecution of the work provided for in his contract, is to be liberally construed in favor of those persons who furnish such labor and materials.</p> <p>2. The liability of the sureties on 'such bonds is to be governed by the same liberal rule of construction that applies in the assertion of ordinary mechanics’ liens, rather than by the rule which applies in the case of special private bonds and commercial guarantiés, which entitle sureties to have their obligations interpreted with great strictness.</p> <p>3. One who has furnished labor and material to a contractor for a public building who has given such a bond, is entitled to recover the balance due him in a suit on the bond against the contractor and his sureties, even though the plaintiff’s contract was with the contractor and a third person who was associated with the contractor in the doing of the work and who was jointly and severally liable with the contractor to the plaintiff, but who was not a party to the contract with the Government.</p>

<p>Hearing on an appeal by intervenors from an order overruling a motion to vacate or rescind a final order of distribution, in a suit in equity for the appointment of a receiver, for an injunction, etc.</p> <p>Tke facts are sufficiently stated in the opinion.</p>

Hearing on separate appeals by two defendants from a judgment on verdict in an action to recover damages for alleged personal injuries.

Hearing on an appeal by the complainant from a decree sustaining a demurrer to and dismissing a bill in equity to have a trust declared in complainants’ favor and'for a re-conveyance of certain real estate.

<p>Hearing on an appeal by the District of Columbia from a judgment on verdict in an action to recover damages for personal injuries.</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>

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

<p>Hearing on an appeal by the plaintiff in attachment from a judgment entered upon a verdict directed by the court.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by the defendant from a decree awarding a mandatory injunction.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal by the defendants from a decree in a suit to enforce mechanics’ liens. The Court in its opinion stated the case as follows: This suit to enforce a mechanics’ lien was begun on February 19, 1897.