Volume 14 — Appeals, District of Columbia

Hearing on an appeal by exceptants from an order of the Supreme Court of the District of Columbia, holding a special term for Orphans’ Court business, approving and passing a final account of an executrix. The facts are sufficiently stated in the opinion.

ÍIeaking on an appeal by the complainant from a decree of the Supreme Court of the District of Columbiá sustaining a demurrer to, and dismissing a bill in equity for the cancellation of certain bonds and for an injunction. The facts are sufficiently stated in the opinion.

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 Gommissioner'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 in an interference proceeding. The facts are sufficiently stated in the opinion.

<p>Bona Fide Purchasers; Equity; Compensation to Evicted Occupant for Improvements.</p> <p>1. One who buys real property without examination of the land records which plainly show the infirmity of the title which he is buying, and that the true title is outstanding in some one else, can not be regarded as a bona fide purchaser in good faith as against the lawful owner.</p> <p>2. When an occupant of land in good faith has been evicted in ejectment at the suit of the lawful owner, and there has been no claim by the latter for mesne profits, the evicted occupant can not maintain a bill in equity against the lawful owner to' recover compensation for improvements made during such occupancy, and enforce the same as an equitable lien against the property, where there has been no fraud or negligence on the part of the lawful owner whereby the occupant was lured into making the improvements.</p>

<p>Hearing on an appeal by the defendant (specially allowed) from a decree of the Supreme Court of the District of Columbia, overruling a demurrer to a bill for an injunction, etc.</p> <p>The Court in its opinion stated the case as follows:</p> <p>The appeal in this case is from an order overruling a demurrer to the appellee’s bill, and was allowed November 8, 1898, upon the special grounds set forth in the petition therefor.*</p> <p>The bill alleges that all the parties, complainants and defendants, are citizens of the United States and residents of the District of Columbia.</p> <p>The substantial facts alleged in the bill are these:</p> <p>On April 24,1896, defendant, John B. Scott, then engaged in business in said District, made an assignment for the benefit of his creditors to the defendant, Horatio Browning, assignee. Said Browning was then a partner with one Middleton, who is also a defendant, under the name of Browning & Middleton.</p> <p>The said deed of assignment conveyed to said Browning, assignee, “all and singular the real estate, goods, chattels, merchandise, effects, stocks, promissory notes, debts, claims, demands, and property” of the said Scott, excepting legal exemptions, and declared the same to be fully described in Schedule A thereto annexed.</p> <p>Schedule A gives a list of certain property not necessary to be mentioned here, and contains the following recital: “Estate for life of said party of the first part in twenty-five acres of land in Montgomery County, State of Maryland, particularly described in deed recorded in Liber J. A., No. 11, folio 241 et seq., of the Land Records of said county.”</p> <p>The deed referred to was made by John D. Coughlan to said Scott. Scott was the owner in fee simple of said land, and on October 17, 1888, conveyed it to Coughlan. Coughlan on the n,ext day re-conveyed the same to Scott, his heirs and assigns, to the use of Scott, his heirs and assigns, upon the following trusts:</p> <p>“In trust for the said John B. Scott during his life to re-, tain possession of said parcel of land and premises, without impeachment for waste, and receive the rents, issues and profits thereof for his own use and benefit, and from and after his death to hold said parcel of land and premises unless the same sbAll be disposed of as hereinafter authorized for the use and benefit of Mary Elizabeth Scott and Margaret Adelia Scott, daughters of said John B. Scott, their heirs and assigns- forever, as tenants in common; and upon this further trust, that said John B. Scott shall have full power and authority to lease or sell said parcel of land or any part thereof from time to time and convey the same in fee simple absolute or by way of mortgage, deed of trust or otherwise, and upon such terms and for such conditions as said John B. Scott may deem fit, and without obligation on the part of the purchaser to see- to the application of the purchase money or the person lending the money to see to the application thereof, and to devise and to dispose of said parcel of land and premises by last will and testament executed according to law.”</p> <p>The deed of assignment was regularly executed by Scott and Browning, as assignee, and each and all of the defendants had actual and constructive notice of the same, and elected to accept its provisions by attending creditors’ meetings called by the assignee. All of the defendants, as well as the complainants, were creditors of said Scott. The instrument was recorded by the assignee in the District of Columbia May 10, 1896, and in Montgomery County, Maryland, on June 3, 1896.</p> <p>Before the record in Montgomery County, one of the-defendants, Thomas T. Keane, filed actions of debt in the circuit court of said county against Scott, and sued out attachments that were levied upon the said lands.</p> <p>After the date of the record the other defendants, including Browning and Middleton, brought their separate actions of debt in the Circuit Court of Montgomery Count}*-, Maryland, against Scott, and caused attachments to be levied on said land also.</p> <p>Keane obtained judgments of condemnation on November 11, 1896, which were followed in March, 1897, by similar judgments in favor of the other attaching creditors aforesaid.</p> <p>The assignee, Browning, filed another suit in his own name in December, 1897, with an attachnoent in which judgment of condemnation was entered January 17, 1898._</p> <p>On December 22, 1896, Keane, upon his judgments aforesaid, filed a bill in equity in the Circuit Court of Montgomery County,' Maryland, against said , Scott, and his. daughters, Mary Elizabeth and Margaret Adelia Scott, and said John D. Coughlan, to set aside said conveyances on the ground that they had been made without consideration and for the purpose of hindering, delaying and defrauding creditors, and so forth.</p> <p>A decree was passed in said suit July 16,1897, annulling the said deeds in so far as they might affect the rights and. claims of said Keane as creditor, and this decree was affirmed by the Court of Appeals of Maryland on June 28,1898.</p> <p>On July 23, 1898, Keane filed the mandate of the Court of Appeals, and procured a writ of fieri facias to issue to the sheriff of said county upon his judgment of condemnation. The sheriff has advertised the land, which is worth about $15,000, for sale on August 27,1898, which, if proceeded with, will cause the sacrifice thereof for an inadequate price. It is also alleged:</p> <p>“That it was the intention of said Scott, well known to said Browning, to convey, as he states in his deed of assignment, all his property except legal exceptions, and the use of the term ‘ estate for. life ’ in reference to the Maryland land was an attempt to describe all the interest which he had therein, and had he known that the courts would hold that the deed under which he held was constructively fraudulent in its limitations and vested in -him the fee sim-' pie he would have so listed in his schedule. The proper construction that should be given the granting clause and schedule together is that all title which said Scott had in said land passed by the deed of assignment, and in any event, as plaintiffs are advised, believe, and therefore allege,the grantor being a resident of the District of Columbia and the deed of assignment having been made in said District, it vested in the assignee all property of said Scott, wherever situated, irrespective of the schedule, at least so far as concerns citizens or residents of said District; that it was the duty of said assignee to at once take possession of said Maryland farm, as well as all other property, which he failed and neglected to fio, but instead thereof attempted and undertook, as hereinafter stated, to ignore said deed of assignment so far as related to said farm and to convert same, in part at least, to his own use.”</p> <p>Other allegations of acts of Browning inconsistent with his duty and obligation as trustee, are also made, and the prayers for relief, omitting the first as merely formal, are:</p> <p>“Two. That the defendant Browning be required with his answer to exhibit an account of the assets that came to his hands and of the manner in which he has disposed of same.</p> <p>“ Three. That the defendant Scott, in his answer, disclose the location and character of any property not mentioned in the schedule, but owned by him at date of the assignment.</p> <p>“ Four. That said Browning be removed as assignee and a trustee appointed in his stead to execute said trust, and said Browning required to turn over to him any balance or assets in his hands.</p> <p>“Five. That said Scott be required, if need be, to execute to said new trustee a deed more specifically conveying the fee simple title to said Maryland land.</p> <p>“Six. That the attaching creditors be restrained, pending this action, from in any manner proceeding to enforce their said attachments on judgments of condemnation against said Maryland land, and from doing any. act .or thing to hinder, delay, or interfere with the control or management of the estate abroad for the equal benefit of all said Scott’s creditors, a,nd from in any way seeking to secure to themselves any greater benefit or interest out of said estate and effects than shall represent their “pro rata” share under said assignment, and that on final hearing such injunction be made perpetual.</p> <p>“Seven. Or, if this can not be done, that the attaching creditors be directed to bring into court any moneys realized from said land, and that the same be treated as assets passing by said deed of assignment, and distributed among the creditors as therein directed.</p> <p>“Eight. For a reference then to the auditor for proof of claims and for the taking and stating an account with the assignee, Browning.</p> <p>“Nine. And for such other and further relief as to the court may seem right and proper.”</p> <p>A restraining order was granted August 25, 1898, returnable on August 29. ■ •</p> <p>This was modified on August 26, 1898 “so that it shall not interfere with the right of the defendant, Thomas T.' Keane, to allow or cause the sale advertised under the writ of fieri facias to proceed.”</p> <p>Defendants joined in a demurrer to the bill, which was overruled on November 1, 1898, and the temporary injunction, granted and modified as aforesaid, was continued in force until the final hearing.</p> <p>It was stated on the argument, and accepted as a fact in the case, that the sale was made under execution as advertised, and that the land brought the sum of $8,500.'</p> <p>It appears, by inference from the omission of an allegation in the bill relating thereto, and by practical concession on the argument, that no bond was filed by the assignee in the State of Maryland as required by statute in the case of assignments for the benefit of creditors. Code of Maryland, Art. 16, Sec. 205.</p>

Hearing on appeals and cross-appeal from a decree of the Supreme Court of the District of Columbia in a suit to enforce a mechanic’s lien. The Court in its opinion stated the case as follows: These are cross-appeals from the same decree.

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>Hearing ou 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> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia sustaining a demurrer to and dismissing a bill against a foreign corporation doing business in the District for an injunction, accounting, etc. The Court in its opinion stated the case as follows: The bill in this case was filed by the appellant, Edward Clark, of the District of Columbia, against the Mutual Reserve Fund Life Association, a corporation created under the laws…

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

<p>Hearing on an appeal by one of several defendants from a decree of the Supreme Court of the District of Columbia directing the sale of certain real estate in a suit to enforce mechanics’ liens.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is an appeal from a decree in equity whereby a sale was decreed of certain real estate for the satisfaction of mechanics’ liens filed against it.</p> <p>The original complainants in the suit were the appellees, John T. Campbell and Theodore H. Burditt, who were partners dealing in lumber, and who as such partners furnished lumber to the value of $970.25 to a firm of W. F. Kerby & Brother, builders and contractors, for use in certain houses which the said builders -had engaged to construct for the appellant, Mrs. Marion Emack. The contractors, who had become financially embarrassed, abandoned the work before its completion; and two other persons, Charles It. Munroe and William D. Campbell, who were sureties on a bond given by the contractors for the faithful performance of their contract, undertook to finish the work; and the work was finished by them, although not within the time limited for it by the contract. But disputes arose, and the complainants and others filed notices of liens under the Mechanics’ Lien Law. Subsequently, the complainants instituted the present suit in equity to enforce their lien; and they included as defendants to their suit Mrs. Marion Emack, the owner of the property, the other persons, who had filed notices of lien, and the trustees and benenficiary under a certain deed of trust that had been given upon the property wherewith to raise the money needed for the building of the houses.</p> <p>After answers by some, although apparently not by all the defendants, testimony was taken ; and the proceedings resulted in a- preliminary decree establishing the respective liens of the parties and referring the cause to the auditor of the court to state an account, and thereafter, upon the auditor’s report, in a final decree adjudging certain sums to be due to certain lien holders, and decreeing a sale of the property in the event that Marion Emack should not pay these several sums within a certain specified time. From this decree the present appeal has been prosecuted.</p> <p>In the. record before us the answers of the trustees and beneficiary under the deed of trust which have been mentioned are not given; and it is not stated what action was taken by the court in regard to their interest. But they do not seem to have appealed, and we are informed in the brief of the counsel for the appellant that their rights are not affected by the decree, inasmuch as the deed of trust was executed and recorded before any of the liens attached which are sought to be enforced.</p> <p>Some of the parties holding claims or claiming to have liens have been settled with; and the controversy, so far as the present appeal is concerned, is narrowed down to four lien claimants and the statement of ■ the account as between them and Mrs. Emack. The claimants yet interested are the original complainants, Campbell and Burditt, James T. Summers, Henry W. Eno, and the Capitol Hill Brick Company ; and in the assignment of errors made on behalf of the appellant, among the questions raised are: (1) Whether the several notices of lien filed by them are sufficient under the law; and, (2) Whether, under the pleadings in the cause, there could be any affirmative relief in favor -of the three, parties last mentioned or any award whatever in their favor, as they were merely defendants in the suit and had filed no cross-bill or taken any other affirmative action. Two of the three, however, answered, and in their answers fully stated their claims.</p>

<p>Hearing on an appeal and cross-appeal by the defendant and complainant, from a decree of the Supreme Court of the District of Columbia, in a suit in equity to have the will of a married woman declared inoperative as to certain real estate, etc.</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 from a decision of the Commissioner of Patents in an interference proceeding. The facts are sufficiently stated in the opinion.

<p>Patents; Interference; Reduction to Practice; Conception; Amendment.</p> <p>1. He is to be regarded as the true inventor who first reduces to practice an idea or device from a mere abstraction to a concrete form, in the absence of proof that he has only elaborated the ideas of others, or of proof that there has been prior conception of the invention by another, with a showing of due diligence in reducing it to practice.</p> <p>2. Reduction to practice by one person would not avail him as against ■ another, if he merely obeyed instructions of such other person ■ and gave effect to the conceptions of the latter; but upon him who would overcome the presumption that the person who first reduced to practice was the first to conceive, the burden rests of doing so by satisfactory evidence ; and where there is oath against oath, the presumption remains unimpaired.</p> <p>3. Testimony adduced by a party to an interference proceeding to prove a disclosure prior to the date of disclosure alleged in his preliminary statement is inadmissible and will be disregarded, where no amendment of such statement has been allowed.</p>

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

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia upon the verdict of a jury, in an action to recover damages for a personal injury. The facts are sufficiently stated in the opinion.

<p>Hearing on a motion by the appellant to dispense with the printing of part of the record.</p>

<p>Hearing on an appeal and a cross-appeal from a decree of the Supreme Court District of Columbia in a suit to foreclose a mortgage of certain real estate, for the appointment of a receiver, and for an accounting.</p> <p>The Court in its opinion stated the case as follows:</p> <p>These are cross-appeals; the first by the Eastern Trust and Banking Company, and the second by the American Ice Company, and William G. Johnson, assignee of the latter company, from a decree passed on the bill filed by the first named appellant, for the purpose of foreclosure by sale of certain mortgaged premises, situate in the city of Washington, and for the appointment of a receiver, and also for an account of rents and profits, and for certain insurance money received by the defendant William G. Johnson, as the assignee of the defendant Ice Company.</p> <p>Both of the corporations concerned are corporations of the State of Maine, and the mortgage was made in that State, and was made to embrace and operate upon certain real estate situated in the County of Penobscot, State of Maine, and also certain real estate situate in the city of Washington, District of Columbia. The mortgage or deed of trust was made by the American Ice Company to the Eastern Trust and Banking Company, to secure the payment of certain bonds, amounting in the aggregate to $40,000, payable in several instalments of $5,000 each, in from three to ten years from the 1st of December, 1889. The bonds were all made payable to the complainant, the Trust Company, or bearer, and were by it, in accordance with the authority given, sold and delivered to various persons, for full value before maturity.</p> <p>The property embraced in this mortgage or deed of trust, made on the 2d of December, 1889, to secure the bonds so issued, consisted of certain real estate in the county of Pe.nobscot, Maine, improved by ice houses, and the engines, machinery and appliances usually employed in harvesting ice. in that State; and also of certain real estate, that it claimed to own in the city of Washington, District of Columbia, located opposite Square No. 270 of said city, and being entirely within the limits of the bed of the Potomac river. This latter mentioned property was improved by wharf and ice houses used for storing and distributing the ice gathered in the State of Maine, and shipped to this District for sale. The mortgage or deed of trust contained the provision usually found in deeds of the kind, that the grantor therein should retain possession of the premises conveyed until default in the payment of the principal or interest of said indebtedness, or in the maintenance of insurance, or the payment of taxes upon said real estate. It was further provided, that if default should be made by the American Ice Company in the payment of the skid bonds or any of them, as they became due and payable, and such default should continue for ninety days, then the whole amount of principal and interest thereon remaining unpaid, should be deemed immediately due and payable, and it should be lawful for the trustee, the complainant, to enter and take possession of said property for the purpose of sale.</p> <p>The sale of the property as directed by the mortgage or deed of trust was required to be made at public auction in the city of Bangor, upon such terms as to credit, partial credit, and security for payment,-as the grantee in the deed might think proper or expedient, having first given public notice of the time and place of the sale or sales, by advertisement printed not less than once a week for four successive weeks in one or more newspapers printed and published in the city of Bangor and also in the city of Washington. It also provided that the trustee should have the right' to adjourn the' sale or sales from time to time, in its discretion, giving reasonable notice of such adjournments, etc.,and after such adjournment to make the sale at the time and place designated by the notice of adjournment, and that no other notice should be required. The trustee was authorized to convey to the purchaser the premises sold, and to apply the proceeds of sale, first, to defray the expenses of sale, together with its just and lawful charges for services and expenses, including reasonable allowance for attorney and counsel fees, and also all advances and expenses reasonably incurred by the trustee in operating, maintaining, or managing the property or business of the Ice Company while in possession thereof, and all payments made by the trustee for taxes, assessments, insurance, and other proper charges upon said property; and the balance of such proceeds to be paid over ratably to and amongst the parties holding the bonds and coupons, etc. And, further, that the bondholders, or any number of them, or any person in their behalf, should have the right to purchase at any such sale made as aforesaid.</p> <p>.The mortgage or deed of trust contains a specific covenant, that the American Ice Company, the mortgagor, would and 'should pay'all taxes and assessments, etc., and would and should keep said mortgaged property at all times insured in such insurance companies as might be approved by the trustee, in such amounts as should reasonably protect all the insurable property, payable, in case of loss, to the trustee as its interest might appear. “In case of loss the insurance money may be applied by the trustee toward the renewal of, or addition to, the property destroyed or injured, or, at the option of the trustee, the money may either be retained and invested in such securities as it approves, as a sinking fund for the redemption of the bonds when due, or be applied to the payment of the principal of such of the bonds as may be at the time due and unpaid,” etc.</p> <p>The first instalment of the bonds secured by the mortgage fell due in December, 1892, and was paid, together with the interest then accrued and due upon all of the bonds. The next instalment became due in December, 1893, but was not paid at maturity, nor was the interest paid. Before this default, but after the American Ice Company had become,insolvent, that is to say, on the 13th of October, 1893, the Ice Company made a general assignment of all its property and effects to the defendant, William G. Johnson, for the benefit of all its creditors. This assignment was accepted by Johnson, and by virtue thereof he leased the property of the Ice Company, located in the city of Washington, being the property embraced in the mortgage or deed of trust, to Edward M. Willis, on the 29th of January, 1894, for one year, for a rental of $130’ per month. The rent accruing until the property was burnt down was received by the assignee Johnson, who still holds the same subject to the final decree in this case. All the improvements upon the property were destroyed by fire on the 11th of February, 1896.</p> <p>After the default in payment in principal and interest, and upon request of the requisite number of the bondholders, the mortgaged property, as well that located in the city of Washington as that located in Penobscot County, in the State of Maine, was advertised to be sold at public auction in the city of Bangor, on the 9th of May, 1894, and in the advertisement it was stated that the terms and conditions of sale would be announced by said trustee at the time and place of sale. The terms were announced, but no sufficient bid being received at that offer, the sale was postponed to the 8th of June, of the same year, to take place at the place where the .first offer was made. Notice of this postponement appears to have been duly given. In accordance with the notice of postponement, the property was offered a second time, but no adequate bid was received, and the sale was again postponed to the 8th of September, 1894, upon due notice thereof given. At 'this last postponed offer of the 'property, it appears, bids were received for both parcels of property, that located in Maine, and that located in the city of Washington, and that both properties were bid in by a committee representing the bondholders. The property in Maine was struck off to such committee, as the highest and best bidders, at and for the sum of $14,500; and that the Washington property was struck off to the same bidders at and for the sum of $14,000; but that the sale of the latter property has never been perfected, and has been abandoned by the committee, and consequently it still remains in the trustee under the deed of trust, undisposed of, and liable to sale for the benefit of the bondholders. There was no conveyance made by the trustee company to the committee of bondholders as purchasers of the Maine property, and the same was held by the trustee, and was rented out, and the rents received by it, until March, 1897, when the property was sold to the Consolidated Companies of New York, for the sum of $16,500; and the committee of bondholders and the Trust Company”joined in the conveyance to make title. The rents and profits of the property, in the meantime received by the Trust Company, have been accounted for. And the proceeds of the sale made to the Consolidated Companies, together with the rent received, after deducting what are claimed as proper expenses, disbursements, and commissions for administration, have been distributed to the bonds pro rata, paying 39 per cent, of the face of the bonds, leaving 61 per cent, still due and owing, besides interest. This is according to the statement of the complainant, the Trust Company, the correctness of which, however, is in several respects controverted by the defendants.</p> <p>Some time after the general assignment of the Ice Company to the defendant Johnson, the latter as assignee took out several policies of insurance on what he claims as his own interest, as such assignee, in the property located in Washington, to the amount of $3,000. The improvements on the property, as we have already stated, were totally destroyed by fire, in February, 1896. The insurance money has been paid over to Johnson as assignee, who was at the time of the insurance, and for some time thereafter had been, in the.possession of the property. The premiums on the policies of insurance were paid out of the assets of the Americán Ice Company. The money received on the policies is held by the assignee Johnson, to abide the final determination of this case.</p> <p>The bill of complaint, after setting out at length and in great detail the alleged facts of the case, prayed: (1) For the appointment of a receiver to take charge of the property in this District; (2) That the defendant Johnson, as assignee of the Ice Company, be required to account to the complainant, the Trust Company, for the rents, income and profits derived from the property in this District from the time of notice served and demand made for the possession of the property, and his refusal of such demand, to the time of accounting; (3) That said Johnson as assignee be required to pay into the registry of the court, to abide the final decree in the case, tiie money received from the insurance companies on the policies of insurance obtained by him on the property-in this District, which was destroyed by fire, and that the complainant be decreed to be entitled to a lien or equitable right to such insurance money for the better security of the said bonded indebtedness; (4) That a decree of foreclosure by sale be passed, and that the property be sold for the payment of the balance of the mortgage debt; and for general relief.</p> <p>The defendants, the American Ice Company, and Johnson, the assignee, by their answers, whilst admitting, most of the facts alleged by’ the complainants, strongly controvert the right of the complainant to fhe relief sought by it. They deny the right to have a receiver appointed, and to any account for rents received, or for the insurance money received by Johnson, the assignee; and they deny the right to a decree for sale or foreclosure of the premises situate in the city of Washington until an account be regularly taken of the money received for sale and rent of the property situate in the State of Maine. They also question the validity of the sale of the property situated in Maine.</p> <p>The court below, by its decree, denied all the relief prayed for by the complainant, except the right of foreclosure and sale of the mortgaged premises, for the payment of a balance due of the bonded indebtedness of $21,350, with interest thereon from the 2d day of December, 1892, as ascertained and declared by the decree, without the statement of any preliminary account; and a decree of sale was passed, and trustees to make the sale were appointed. From this decree both parties have appealed.</p>

<p>Hearing on an appeal by the exceptants from an order of the Supreme Court of the District of Columbia holding a special term for orphans’ court business, approving the final account of an administrator c. t. a., and directing distribution of the estate.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is an appeal from an order of the Supreme Court of the District, holding a special term for orphans’ court business, passing and approving the final account of Edwin A. Mclntire, administrator of the estate of David Mclntire, deceased, and directing distribution in accordance therewith.</p> <p>David Mclntire died April 1, 1884, in the District of Columbia, leaving a will making certain bequests, but naming no executor.</p> <p>The clauses of that will, that have any relation to the matters in controversy, are the following:</p> <p>“ This my last will and testament.</p> <p>“I David Mclntire. tin-plate worker, of this city [of] do will, bequeath, or devise, to my nephews, and nieces, that is to say, from July the first. 1st eighteen hundred and fifty-four, 1854</p> <p>“To the opening of. or reading of this, paper, one thousand three hundred and fifty dollars and sixty-four cents ($1,350.64) is to be calculated at six 6 per cent, interest</p> <p>“ That amount whatever it may be is to be given to each •of my Brother Edwin’s children. The remainder if any, is to be equally divided between my Brothers Edwin and Charles children.”</p> <p>The brother Charles referred to in the foregoing, was living at the time of the testator’s death. He had one child, Charlés Mclntire, Jr., who is the appellant in this proceeding. The brother Edwin died before the testator, leaving five children, namely, Edwin A,, Martha, Adaline, Emma T. Mclntire and Elizabeth Test.</p> <p>A petition for probate of the will, was filed by Martha Mclntire, and probate was had' April 12, 1884. On the same day, at the request of his sisters, Edwin A. Mclntire was appointed administrator with the will annexed, and gave a bond in the sum of $8,000, with two of his sisters as sureties.</p> <p>The inventory returned by the administrator, January 26, 1885, showed an estate in cash and securities amounting to $47,987.20. A controversy arose between Charles Mclntire, Jr., and Edwin A. Mclntire in respect of the sum of $10,000 ' cash alleged to have been received by the latter and omitted from the inventory, which was settled by an order made February 19, 1885, the administrator and all the legatees expressly consenting thereto.</p> <p>This decree provides:</p> <p>1. That Edwin A. Mclntire shall act as administrator of said David Mclntire, but without any allowance for commission or o'ther charge for his services as such administrator.</p> <p>2. After reciting the controversy, that the same be referred • to the arbitationof Campbell G. Berryman, James M. Johnston and James G. Payne or any two of them, with direction to hear all the proofs and make a decision and return the same into court; “ and if the said decision shall find that the said Edwin A. Mclntire has received or ought to account for the said sum of $10,000, thereupon it is ordered that the entire share of the said Edwin A. Mclntire, as legatee and distributee in the whole estate of said David Mclntire, or so much thereof as may be necessary, shall be retained, appropriated, and applied by this court to the payment to the said estate of said sum of $10,000, and interest thereon from the time when the same was found by said arbitrators to have been received by him, or from which he was accountable to said estate for the same; and if the said share should be found insufficient to pay the said sum of $10,000 in full, and any interest thereon, as aforesaid, then the said Edwin A. Mclntire shall forthwith pay into this court, in cash, the additional sum necessary to make up any such deficiency.</p> <p>“3. And it is further ordered that if for any reason it shall appear to this court that the said share of the said Edwin A. Mclntire, as distributee and legatee of the said estate, may not be applicable to the payment of said sum of $10,000 and interest, as aforesaid, in whole, as above mentioned, or that for any reason the said indebtedness to be found, as aforesaid, can not be set off against his said share in said estate, then it is ordered that the said Edwin A. Mclntire shall thereupon at once pay the said sum of $10,000 and interest thereon, as aforesaid, into this court.</p> <p>“ 4. It is further ordered that the said assets of the said estate shall remain under the control of this court until the final settlement of the said estate, and that any other or further assets of said estate that may be discovered shall be paid over to this court.”</p> <p>On February 25, 1885, the said Edwin A. Mclntire presented a communication in writing to the said arbitrators agreeing and requesting them to return an award against him showing that he had received the said sum of $10,000 April 18, 1884.</p> <p>He presented therewith the several receipts of Emma T., Martha, and Adaline Mclntire, and Elizabeth Test, for the sum of $2,500 each, on account of their shares in the estate. The arbitrators made a formal report, declaring that Edwin A. Mclntire, as administrator of David Mclntire, on April 18, 1884, received the sum of $10,000 in addition to the stocks, bonds and cash returned by him; and that he ought to account as administrator for the said sum in accordance with the order of reference aforesaid. This report of final award was, by order duly entered with the consent of all the parties, confirmed April 25, 1885.</p> <p>In June, 1885, Charles Mclntire, brother of the testator, filed a petition to set aside the order probating the will, and for issues to be transmitted to the circuit court for trial by jury. After considerable delay, these issues were tried and resulted in a judgment sustaining the will. This was appealed first to the General Term and thence to the Supreme Court of the United States, where, it was affirmed April 13, 1896. See McIntire v. McIntire, 162 U. S. 383.</p> <p>Whilst the cash and securities of the estate remained in the possession of the register of wills in accordance with the order before referred to, and on March 5, 1886, the court ordered the register to pay S. S. Henkle the sum of $500, to be charged to the distributive shares of Edwin A. Mclntire and his sisters aforesaid. The petition for this order was signed by each of them and represented that they had employed General Henkle as their counsel to represent them in sustaining said will.</p> <p>On August 13, 1886, by consent of all parties, an order was made directing the register of wills to deliver all- of the cash and securities of the estate to the solicitors of the parties respectively — S. S. Henkle and James M. Johnston— to be held by them, subject to the order of the court until the final settlement of all litigation. .</p> <p>On December 2, 1892, James M. Johnston by consent retired and Calderon Carlisle was appointed to succeed him.</p> <p>On July 22, 1893, upon a petition of Edwin A., Sarah, Martha and Emma T. Mclntire, and Elizabeth Test, representing that S. S. Henkle had been retained by them to defend the will in the contest begun by Chas. Mclntire, senior, an order was entered requiring the custodians of the funds of the estate to pay to said S. S. Henkle the sum of $5,000 on account of counsel fees in said litigation.</p> <p>This order recited that the said sum “be charged against the interest of the said Edwin A., Sarah, Martha, and Emma T. Mclntire, and Elizabeth Test, in said estate, without prejudice, however, to the right of the said named legatees or the administrator c. t. a. to apply to this court at the termination of the litigation touching the validity of the will of the said David Mclntire, to have said allowance charged against the estate of the said testator.”</p> <p>S. S: Henkle dying on May 21, 1895, was succeeded by Enoch Totten, by order duly made July 3, 1895.</p> <p>On application similar to those made on behalf of S. S. Henkle, orders were made for the payment to Enoch Totten of fees on the same account as follows: July 12, 1895, $500; January 28, 1896, $1,000; and on June 1, 1896, $5,000. The orders for these payments followed the form above quoted in the order to pay $5,000 to S. S. Henkle.</p> <p>On July 26, 1896, Carlisle and Totten returned into court a complete account of their administration, in which the foregoing disbursements on account of fees, and others on account of costs, were credited. This was passed by the court by order duly entered, and they were allowed a commission of 5 per cent, on the cash coming into their hands and 5 per cent, on the cash value of the stocks and securities held by them. During their, administration they had made certain investments of the cash received as dividends upon the stocks and securities, by direction of the court.</p> <p>On July 7, 1897, Edwin A. Mclntire upon leave granted by the court, gave a new bond as administrator in the sum of $100,000, and the assets of the estate were ordered to be delivered to him.</p> <p>On August 2, 1897, the said administrator filed his final account and scheme for distribution of the estate among the legatees, to which exceptions were filed by the appellant.</p> <p>All of the exceptions were overruled and the account approved and distribution ordered; and from that order this appeal has been prosecuted. By agreement a partial distribution was had, leaving, however, funds sufficient to meet any change that might be made in the event the exceptions should be sustained on appeal.</p>

Hearing on an appeal by the plaintiff from an order of the Supreme Court of the District of Columbia arresting a judgment in an action on a promissory note.

Hearing on a petition for a writ of mandamus to compel an associate justice of the Supreme Court of the District of Columbia to approve an appeal bond, and an answer by the respondent to a rule to show cause why the writ should not issue.

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

<p>Hearing oh a petition by a defendant in a justice of the peace suit for a writ of certiorari to a justice of the Supreme Court of, the District, to which court the suit had been re.moved by appeal, and in which judgment had been entered against the petitioner, to have certified and returned to this court all the papers and pleadings in the cause.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal by complainants from a decree of the Supreme Court of the District of Columbia, entered in accordance with the mandate of this court, dissolving an injunction and dismissing the bill of complaint. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the accused from a judgment of conviction and sentence by the Supreme Court of the District of Columbia on the verdict of a jury in a prosecution for larceny. The facts are sufficiently stated in the opinion.

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

<p>Heaeing on an appeal by the relator from an order of the Supreme Court of the District of Columbia, dismissing a</p> <p>petition for a writ of mandamus against the assessor of the District of Columbia.</p> <p>The facts are sufficiently stated in the opinion.</p>

The Court in its' opinion stated the case as follows: This is an appeal from the judgment of the Police Court of the District of Columbia, rendered in a proceeding instituted for the purpose of testing the validity of an ordinance or regulation made by the Commissioners of the District with reference to a certain hack or cab stand adjacent to the station of the Baltimore and Potomac Railroad Company in this city. The station is situated at the corner of Sixth and B streets.

Hearing on an appeal from an order of the Supreme Court of the District of Columbia, holding a special term for Orphans’ Court business admitting a last will and testament to probate and granting letters testamentary thereon.

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

<p>Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia, dismissing a creditors’ bill.</p> <p>The Court in its opinion stated the case as follows :</p> <p>The appellant, George E. Davis, as the plaintiff in proceedings instituted before a justice of the peace, recovered judgment against the appellee, James E. Nalley, the defendant in those proceedings, for the sum of $21.41 and costs. On this judgment he caused a writ of execution to be issued and placed in the hands of a constable. This was on September 25, 1897. The constable, claiming to have levied on a piece of real estate belonging to Nalley, advertised it for sale; but, at the instance of the appellant, the sale was abandoned, on the ground, it is said, that the description of the property in the advertisement was defective; and the writ of execution was returned unsatisfied on October 4, 1897, with the endorsement on it by the constable: “No personal property found whereon to levy.” On October 5, 1897, the judgment was recorded in the office of the clerk of the Supreme Court of the District; and on the same day a writ of fieri facias was issued thereon, which, also on the same day, by direction of the counsel for the plaintiff in the proceedings, was returned “nulla bona.”</p> <p>On October 2, 1898, there was executed and recorded a deed of conveyance from the appellee, James E. Nalley, to the appellee, Marian A. Harper, whereby the former conveyed to the latter two pieces of real estate in the District, one designated as Lot 93, in a subdivision of a tract known as Long Meadows, which was subject to a deed of trust recorded on June 11, 1896, to secure a sum of $1,000; and the other designated as part of Lot 46, of another subdivision of the same tract óf Long Meadows, in which the title of the parties was an unencumbered fee simple. This latter piece of land was a small stable lot, forming a parallelogram nineteen feet by ten feet, lying to the rear of the other, but separated from it by an alley about ten feet wide. And it was the property proposed to be sold by the constable under' the writ of execution before referred to, although the description in the advertisement gave it an erroneous or impossible location.</p> <p>Thereupon the appellant, as complainant, filed a, bill in equity to vacate this deed as- being null and void as against him, on the ground apparently that the defendants, Harper and Nalley, and also the defendant Evans, as the alleged attorney and agent of the other two parties and who had prepared the deed of conveyance, had conspired to defraud the complainant and to prevent the complainant from realizing the fruits of his judgment. And the prayer of his bill was that the deed from Nalley to Harper should be decreed to be void as against the complainant; or, in the alternative, that the judgment should be declared to be a lien on the property next after the deed of trust of June 11, 1896, but superior to the deed of conveyance from Nalley to Mrs. Harper. And there was also the prayer for general relief. In this bill of complaint the two lots mentioned in the deed were set forth and sought to be reached; but the stablé Lot 46, instead of being correctly described as in the deed, was described with the erroneous or impossible description contained in the constable’s advertisement of sale.</p> <p>.The answers of the three defendants to the bill were all substantially to the same effect. In them the ownership and conveyance by Nalley of any such Lot 46 as was described in the bill was denied; as was also any purpose to defraud the complainant or to prevent him from realizing the amount of his claim. It was averred in them that the deed had been executed for a valuable consideration and in pursuance of negotiations that had been pending for two months. It was admitted that Evans acted as the agent of Mrs. Harper in the transaction; but it was denied that he was in any manner the agent or attorney of Nalley. And Evans in his answer admits that he had knowledge of the complainant’s claim against Nalley, and had seen the advertisement of sale; and he adds that, not regarding that there was any lien upon the property other than the deed of trust for $1,000 which has been mentioned,-he advised Mrs. Harper that she could safely make the purchase.</p> <p>• Whether there were any replications filed to these answers, does not appear from the record before us. There was testimony taken, however, apparently very voluminous; but that testimony was all omitted from the transcript of record-brought to this court by the express direction of the appellant.</p> <p>The court below dismissed the bill. As we are advised by the opinion of the justice who presided at the hearing, and which opinion has been incorporated into the transcript of record, the decree of dismissal was based mainly upon the total failure of the evidence to show any fraud, collusion, or bad faith on the part of the defendants. It appears, also, that, rather than continue this litigation, Mrs. Harper had offered -to pay the complainant $30 or $35 in satisfaction of his claim, which seems to be more than the amount of the claim; but that the offer was refused.</p> <p>There was a petition for a rehearing, which was denied; and this petition has been incorporated into the transcript of record; but it has no place before this court, and we can take no cognizance of it.</p> <p>From the decree of dismissal the complainant has appealed to this court.</p>

<p>Hearing on a motion to dismiss an appeal from a decision of the Commissioner of Patents.</p>

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

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

<p>' Hearing on a motion to dismiss or affirm an order of the orphans’ court approving and passing the final account of an executrix.</p>

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on the verdict of a jury, in an action of ejectment.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia on verdict in an action against the District of Columbia for trespass on the land of the plaintiffs and the removal of gravel therefrom.

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

<p>Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia on a verdict directed by the court in an action for malicious prosecution.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is an action for malicious prosecution, and the appellant, Israel Spitzer, who was plaintiff in the court below, has appealed from a judgment entered upon a verdict for the defendant, Samuel Friedlander, that was returned pur- . suant to the direction of the court.</p> <p>It appears from the evidence, that the defendant, Samuel Friedlander, had been engaged in the sale of clothing and “ furnishings,” in a shop on Seventh street, in the city of Washington, for some years prior to January 18, 1896. Plaintiff, Israel Spitzer, had been in defendant’s service for more than a year, as cashier. He was not quite twenty-one years of age on January 18, 1896, was unmarried and lived with his parents. There were three regular salesmen in the house. Defendant was generally about the house during business hours. He frequently sold goods, and occasionally plaintiff assisted, but his regular duties were those of a cashier. Sales, with few exceptiops, were made for cash. Each of the regular salesmen was provided with a sales book with pages numbered from one to one hundred, inclusive. Each page contained two printed forms that were alike, showing blanks for entry of dates and names of salesmen, and a descriptive list of the articles on sale. It was the duty of the salesman, on completing a sale, to enter on both blanks his name, the article sold, the cost mark and the price obtained. One of these, called the slip, was then torn from the page and delivered at the cashier’s desk with the money; the other, called the stub, remained in the book and was kept by the salesman until the last page was used/ Cash paid out for expenses was noted by the cashier. It was the latter’s duty and custom, at the close of each day, to make up a daily sheet. This sheet showed the item, cost mark and price of sale as returned by each salesman, in a separate column, with another column showing the cash paid put in expenses. Defendant generally looked over the sheet with plaintiff. They did not compare the slips with the stubs, and sometimes when there was more cash than the slips called for, defendant would explain it by a sale made by himself, and a balance would be made in that way. Plaintiff enjoyed the complete confidence of the defendant until January 15, 1896, and there had never been any disturbance of their friendly relations. On the night of January 18, 1896, the defendant made a complaint in the police court against the plaintiff, charging him with the embezzlement of thirteen dollars on the 6th day of the same month, and caused his immediate arrest upon a warrant from that court.</p> <p>On January 21,1896, a similar complaint was made charging plaintiff with the embezzlement of $240.65 on or about January 18. ■</p> <p>On January 29,1896, plaintiff was held to bail by the police court in the sum of $1,000 to await the action of- the grand jury on the first complaint, and his personal recognizance in the same sum was taken on the second. On March 26, 1896, the grand jury presented, an indictment against plaintiff, charging him with embezzlement. This indictment contained six counts charging specific acts on November 30, December 5, and December 17,1895, and on January 6, and January 15, 1896. The presentment was made on the evidence of defendant, Samuel Friedlander, and Herman Wolf.</p> <p>Plaintiff was tried and acquitted April 28,1896. Prior to the prosecution he possessed a good reputation for integrity and business capacity. This suit was begun May 25, 1896, and the judgment appealed from was rendered April 22,1898.</p>

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

Hearing on an appeal by tbe complainants from a decree of the Supreme Court of the District of Columbia overruling exceptions to and ratifying a report of the auditor assessing damages on an injunction undertaking, and dissolving an injunction, ordering a distribution of a fund in the hands of receivers, and dismissing a bill of complaint. The facts are sufficiently stated in the opinion.