Volume 18 — Appeals, District of Columbia

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

Hearing on an appeal from a decree of the Supreme Court of the District of Columbia in a proceeding by way of interpleader to determine the rights of respective claimants of a fund belonging to the estate of a decedent. The Court in its opinion stated the case as follows: This case began with a bill of interpleader filed by the administrators, with the will annexed, of the estate of Sophia Rhodes, deceased.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia upon a verdict directed by the court in an action to recover damages for bi’each of a contract of carriage. The facts are sufficiently stated in the opinion.

- Hearing on an appeal by the complainant from a decree of the Supreme Court of tlie District of Columbia dismissing a bill in equity for the cancellation and surrender of a contract, promissory note and deed of trust.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia upon the verdict of a jury directed by the court in an action of ejectment.

Hearing oil an appeal by the complainant from a decree of the Supreme Court of the District of Columbia, dismissing a bill in equity for a divorce. The facts are sufficiently stated in the opinion of the court:

Hearing ou au appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, entered upon the verdict of a jury upon a plea of set-off after a motion by the plaintiff for leave to take a nonsuit had been denied. The acts are sufficiently stated in the opinion of the court.

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

<p>Hearing on an appeal by the defendant (specially allowed) from an interlocutory judgment of the Supreme Court of the District of Columbia sustaining a demurrer by the plaintiffs to defendant’s pleas to a declaration in an action of ejectment.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This case comes before us on a special appeal allowed from an interlocutory judgment in an action of ejectment.</p> <p>• The suit was begun by the appellees as heirs-at-law of Thomas M. Wilkes, deceased, against Kate S. Wilkes, to recover the possession of certain land in the city of Washington.</p> <p>The declaration alleges that Thomas M. Wilkes was seized in fee of said lands and died intestate on December 11, 1898, whereupon the title thereto, with the right of immediate possession, devolved upon the plaintiffs, and that the defendant entered and ejected them, etc.</p> <p>Defendant filed a number of pleas, from which it appears: That she was the wife of said Thomas M. Wilkes and resided with him upon the premises in controversy at the time of his decease, the same having long been the family home. That on May 6, 1897, she joined with said Thomas M. Wilkes in the execution of a deed of trust, “ for the purpose of carrying into full effect the uses and trusts hereinafter declared and in consideration of $5 paid,” and so forth, conveying the premises to McLeran and Mather to have and to hold, and so forth, "unto and to the use of” the said trustees, “ as joint tenants, their heirs and assigns in and for the uses and trusts following, and to and for no other use, intent or purpose.”</p> <p>These are: 1. To secure the payment of a note of even date for $1,300 made by said Wilkes and payable to the order of William E. H. Merritt five years after date, with interest, at 5 per cent, per annum, payable semi-annually, together with any expenses, attorney’s fees, etc., arising in respect of the trust. 2. “ Until any sale and conveyance as hereinafter provided for, to permit said Wilkes, his heirs and assigns, to possess and enjoy said described premises and to receive the issues and profits thereof;" and upon full payment, etc., to release said premises. 3. Upon default made in payment of said note or any installment of interest, and so forth, to sell the premises at public auction and convey the same to the purchaser at such sale, and so forth.</p> <p>The said Thomas M. Wilkes thereafter had but a chancery trust in, and equity of, redemption of said premises. That defendant, having been in possession of the premises with her said husband, as their only property and home, at and before his decease, remained therein. That she has since been appointed administratrix of his estate. That, as widow, she had the possession of the premises, after his decease, under her right of quarantine and dower. And that, as administratrix, the chancery trust of ° said Wilkes, under the deed of trust aforesaid, devolved upon and became vested in defendant as administratrix aforesaid.</p> <p>Plaintiffs demurred to the several pleas, the substance of which has been stated, and were sustained. It is from this judgment that the appeal was prayed and allowed.</p>

<p>Hearing on an appeal by tbe complainant (specially allowed) from an interlocutory order of tbe Supreme Court of tbe District of Columbia granting leave to a defendant in an equity suit to amend its answer and take additional testimony in support thereof, after a former interlocutory decree in favor of tbe complainant for an accounting bad been affirmed by tbis court and tbe cause remanded for tbe taking of tbe account decreed.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This cause was formerly before us on a special appeal allowed to the defendant in the court below, the present appellee, the Eclipse Bicycle Company, from a decree of the Supreme Court of the District of Columbia, by which it had been adjudged that the complainant in the cause, the present appellant, was entitled to an accounting from the defendant for royalties on certain patented devices manufactured by it, and by which also the cause was referred, to the auditor of the court for the statement of such account, a decree which this court affirmed. The Eclipse Bicycle Company v. Farrow, 16 App. D. C. 468. After the cause had been remanded, and when it was before the auditor 'for the accounting which had been decreed, the defendant company filed a- motion, through new counsel, for leave to amend its answer,and to reopen the cause by taking additional testimony in support of its answer; and in aid of this motion it filed several affidavits, with numerous exhibits attached. The general purport of the motion and the affidavits wasi that there had been fraudulent concealment on the part of the complainant, and that the defendant, during the whole course of the litigation, had been under a misapprehension as to the nature of the complainant’s claim against it. An answer to the motion, likewise supported by affidavit, was filed by the complainant. The court allowed the motion and entered an order granting leave, as prayed, to amend the answer, and to take further testimony.</p> <p>Erom this order the complainant has prayed and has been allowed a special appeal to this court.</p> <p>[The further material facts will be found stated in the opinion •— Deportee.]</p>

Hearing on an appeal by the relator from an order of tbe Supreme Court of tbe District of Columbia dismissing a petition for a writ of mandamus to compel tbe Commission- ■ers of the District of Columbia to execute and deliver to the petitioner a deed of property purchased at a tax sale.

Hearing oil an appeal from a decision of tbe Commissioner of Patents in an interference case. Tbe. facts are sufficiently stated in tbe opinion.

Hearing on an appeal from a decision of tbe Commissioner of Patents, in an interference case. Tbe facts are sufficiently stated in tbe opinion.

<p>Hearing on an appeal from a decision of tbe Commissioner of Patents in an interference case.</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 in a suit in equity to determine the rights of the parties to a fund for 'which both' held an assignment. The facts are sufficiently stated in the opinion.

Hearing on an appeal by tbe respondent from an order of tbe Supreme Court of tbe District of Columbia in an habeas corpus proceeding awarding tbe custody of a child to tbe petitioner. Tbe facts are sufficiently stated in tbe opinion.

Heading on an appeal by tbe defendant in an indictment for murder from a judgment of tbe Supreme Court of tb'e District of Columbia entered upon a verdict of guilty as indicted. Tbe facts are sufficiently stated in tbe opinion of tbe court.

Hearing on an appeal from a decision of tbe Commissioner of Patents in an interference case. Tbe facts are sufficiently stated in tbe opinion.

Hearing on an appeal from a decision of the Commissioner of Patents, in an interference case. 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, sustaining a demurrer to and dismissing a bill in equity to vacate a deed of certain real estate, upon the ground of laches.

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

<p>Hearing oil an appeal by tlie complainants from a decree of the Supreme Court of the District of Columbia, dismissing a bill in equity for an injunction.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This suit was begun, by the appellants J. Forrest Manning and Harry E. Eupprecht, trading as J. Forrest Manning & Co., in the Supreme Court of the District of Columbia to compel the Chesapeake and Potomac Telephone Company to continue to furnish them the ordinary service of the Washington telephone exchange upon payment of the annual rate prescribed in the act of Congress of June 30, 1898. This regulation of rates is contained in a proviso added to an item of the general appropriation bill of that date, .and reads as follows:</p> <p>“Provided, that from and after the passage of this act it shall be unlawful' for any person or any telephone company doing business in the District of Columbia to charge or receive more than $50 per annum for the use of a telephone on a separate wire; $4-0 for each telephone, there being not more than two on a wire; $30 for each telephone, there being not more than three on a wire, and $25 for each telephone, there being four or more on the same wire.” 30 Stat.. 537, 538.</p> <p>The Chesapeake and Potomac Telephone Company, then,, as now, owned and operated the only telephone plant in the District of Columbia.</p> <p>On July 1, 1897, plaintiffs, entered into a contract with the defendant, whereby the latter agreed to furnish them its improved appliances, with special metallic circuit, for use in their business offices, and for which they promised tO' pay the sum of $125 per annum, quarterly, in advance, and $10 additional per annum for an extra desk cabinet equipment. By special provision the contract was declared to continue from year to year, subject to termination by either-party, after the first year, upon ten days’ notice.</p> <p>Npon the passage of the aforesaid act plaintiffs gave notice of termination of the contract, and then, ten days later,, notified defendant that they would retain the telephone equipment at the rate of $50 per annum, as provided bylaw. They also tendered payment in advance at said rate. Defendant declined to accept payment at said rate on the ground that the same was less than the cost of service, but offered to continue at the former contract rate, or else to remove its telephone equipment from plaintiffs’ office and discontinue their service. Alleging these facts, and renewing the tender of payment of the statutory rate, plaintiffs’ bill prayed that defendant be enjoined from removing their telephone appliances, and from refusing or neglecting, when requested, to furnish them the usual telephone connections and service.</p> <p>The defendant’s answer averred that its service could not be maintained at the rate fixed by the act of Congress without actual loss, and denied the power of Congress to compel it to furnish the same for less than cost, because the effect would be the confiscation of its property. The temporary injunction prayed for was granted August 4, 1898. About fifty like suits were filed by other subscribers. These were practically consolidated with this suit, in which alone testimony has been taken, and made to abide its result.</p> <p>A great volume of- testimony was taken by the parties, and the cause came on to be heard February 5, 1900. The result was a final decree dismissing the bill, from which this appeal has been duly prosecuted.</p> <p>The first public use of the telephone in the pity of Washington was begun by Geo. C. Maynard late in the year 1878, under a contract with Gardiner G. Hubbard, trustee, for the agency and use therein of the inventions of Alexander Graham Bell. Maynard was made exclusive agent for the rental of the Bell telephones and call bells which were to be supplied to him. He was to erect lines, use diligence to bring the telephones into use and for compensation to receive a percentage of the rentals of instruments. A subsequent agreement ratifying the foregoing and extending it to certain' other inventions controlled by the Western Hnion Telegraph Company was made with Maynard by the National Bell Telephone Company, which had in the meantime become the assignee of the Bell patents and others. About December 1, 1879, Maynard conveyed his plant, rights, etc., to the National Capital Telephone Company, a corporation ereated under the laws of West Virginia.</p> <p>March 31, 1883, this company entered into a contract with the American Bell Telephone Company for the use of its telephones upon an agreed division of the proceeds of their rentals to subscribers.</p> <p>Shortly after this the Chesapeake and Potomac Telephone Company was incorporated by the laws of the State of New York for the purpose of acquiring the property and consolidating the business of the National Capital Telephone Company, operating in the District, and of the Telephone Exchange Company, a corporation of West Virginia,’ then operating in Maryland. The capital stock of the Chesa.peafce and Potomac Telephone Company was fixed at $2,650,000.</p> <p>On July 30, 1883, the National Capital Telephone Company, in consideration of $750,000 of the capital stock of the Chesapeake and Potomac Telephone Company, transferred to the latter all of its plant, property and rights of every description.</p> <p>At the same time the Chesapeake and Potomac Telephone Company acquired all the rights, property, etc., of the Telephone Exchange Company in Maryland. The consideration was the delivery of $1,900,000 of the capital stock of the assignee. By the terms of the agreement of transfer $630,000 of this stock was to be delivered to the National Bell Telephone Company and $1,270,000 to the Telephone Exchange Company. Of this last $100,000 was to be passed to trustees for the use of the Chesapeake and Potomac Telephone Company, and subsequently $62,600 thereof was assigned to the National Bell Company aforesaid and $37,100 sold in the market for the sum of $21,516.67.</p> <p>■The actual value of the visible property received by the Chesapeake and Potomac Telephone Company under these conveyances was the following: Erom the National Capital Telephone Company, cash, bills receivable and supplies, $77,331.93; plant valued at $91,130.21. Total, $168,-165.11.</p> <p>Erom the Telephone Exchange Company, cash, bills receivable and supplies, $15,015.21. Plant valued at $300,-000. Total, $315,015.21.</p> <p>The difference between the face value of the stock — $750,000 — delivered to the National Capital Company and the actual value of the property received — $168,165.11 — is represented solely by the valuation of the franchises of the latter company at $581,531.60.</p> <p>The difference between the face value of the stock — $1,900,000 — delivered to the Telephone Exchange Company and the actual value of the property received therefrom — $315,015.21 — is represented solely by the franchises of the latter company, estimated, $1,551,951.76.</p> <p>The Chesapeake and Potomac Telephone Company, after taking over the property and franchises of the other corporations, began to carry on the business in the District of Columbia, throughout Maryland and a small part of West Virginia. In' conducting this business it has charged 10 per cent, of its general office expenses against the plant operated in the District, where its general office is kept. Since 1891 it has issued and sold $500,000 of 6 per cent, bonds, two-fifths of which are also charged against the District plant.</p> <p>Congress has passed no act incorporating the defendant, or giving it license to carry on its business in the District of Columbia.</p> <p>The only recognition that it claims is to be found in certain items and clauses of appropriation bills, beginning with that of July, 1888. In that act it was provided, after an appropriation for telephone service, that the Commissioners of the District might authorize the wires of any “ existing telegraph, telephone or electric light company now operating in the District of Columbia,” to be laid under the streets, alleys, etc., “ whenever in their judgment the public interest may require the exercise of such authority — such privileges as may be granted hereunder to be revocable at the will of Congress without compensation.” 25 Stat. 323, 321.</p> <p>An item continuing this authority for another term of Congress under the same condition was contained in the act of March 2, 1889. Idem, 804.</p> <p>The act of August 7, 1894, authorized the erection and use of telephone poles in the public alleys, but the privilege was made subject to revocation at the will of Congress without compensation. 28 Stat. 256.</p> <p>The act of March 3, 1897, provided that hereafter no wire shall be strung on any alley pole at a height of less than fifty feet from the ground at the point of attachment to said pole; and it was declared that nothing herein contained shall authorize the erection of any additional pole upon any street, avenue or reservation.</p> <p>The usual condition of revocation at will without compensation was again added. 29 Stat. 678.</p> <p>Appropriation bills subsequent to ‘that containing the clause regulating charges merely appropriate money to pay defendant’s accounts for services rendered. 30 Stat. 117; Idem, 126.</p>

Hearing on an appeal by an administrator from an order of tbe Supreme Court of tbe District of Columbia bolding a special term for Orphans’ Court business, allowing a former-executor counsel fees and costs incurred by him in unsuccessfully defending a.will to which a caveat bad been filed- Tbe Court in its opinion stated tbe case as follows; This is an appeal from an order of tbe Supreme Court of tbe District bolding a special term for Orphans’ Court business in a case in…

Hearing on au appeal by the relator from a judgment of the Supreme Court of the District of Columbia dismissing a petition for the writ of mandamus. The Court in its opinion stated the case as follows: This appeal is from a judgment of the Supreme Court of the District dismissing a petition for a writ of mandamus.

Hearing on an appeal (specially allowed) by one of several defendants from an interlocutory order of the Supreme Court of the District of Columbia overruling the demurrer of such defendant to a bill in equity for an injunction, the appointment of a receiver, and the enforcement of an equitable lien upon a fund in the Treasury of the United States claimed by said defendant.

<p>Hearing on an appeal (specially allowed) by tbe defendant from an order of the Supreme Oourt of the District of Oolumbia directing the clerk to pay to tbe plaintiff,.in satisfaction of his judgment, money deposited by the attorney of tbe defendant in lieu of an appeal bond, as security, for tbe costs of a former appeal.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This cause was begun in the court of a justice of the peace. It has heretofore been before this court on appeal from a judgment of the Supreme Court of the District, wherein, in a trial de novo after removal by appeal from the justice’s court, it was alleged that a new item was added to the demand which had not been included in the bill of particulars filed in the justice’s court. We then held that, in a cause removed from a justice of the peace by appeal, it was not within the jurisdiction of the Supreme Court of the District to allow new items of indebtedness to be introduced on the trial de novo in that court; but that, as the record before us failed to show that the item alleged to have been added to the demand had actually entered into the judgment rendered, which was only for the sum of $10 and much less than the sum total of the original account, it did not appear that the court had, in fact, transcended its jurisdiction. The appeal was accordingly dismissed. Mitchell v. Evans, 17 App. D. C. 233.</p> <p>In order to prosecute that appeal, the attorney of John Mitchell deposited $50 with the clerk of the Supreme Court, in lieu of an appeal bond, as permitted by law. The deposit was expressly made to operate as security for the cost of appeal, and not as a supersedeas. All the costs, to secure which the deposit was made, have been paid without drawing upon the deposit fund.</p> <p>On return of the mandate to the Supreme Court, the appellee, W. Warrington Evans, plaintiff in judgment, moved therein for an order directing the clerk to pay the money over in satisfaction of the judgment and costs accrued in that court. Appellant interposed a counter-motion for an order of payment of the fund to his attorney, who had made the deposit. This was accompanied by affidavits of both Mitchell and the attorney to the effect, that the money belonged to the attorney who had deposited the same to obtain the appeal for his client; that it had not been lent to the client; and that he had no pecuniary interest, direct or indirect, in it. The facts alleged in the affidavits were not denied. The attorney claiming the fund filed the motion of the appellant and appeared therefor on the-hearing. He did not ask leave to intervene, or to file an independent motion on his own behalf. The court overruled the latter motion and granted the former. From this order the appellant applied for a special appeal to this court, whicli was allowed. The appellee moved to dismiss the appeal, and the cause has been heard on that motion and on the-merits.</p>

Hearing on an appeal by tbe plaintiffs, husband and wife, from a judgment of tbe Supreme Court of tbe District of Columbia entered upon the verdict of a jury directed by tbe court in an action to recover damages for personal injuries to tbe female plaintiff.

Hearing on an appeal by a defendant indicted, convicted and sentenced in the Supreme Court of the District of Columbia of the crime of petit larceny as a second offense.

<p>Hearing on an appeal by tbe United States, from an order of tbe Supreme Court of tbe District of Columbia, in a habeas corpus proceeding, discharging tbe petitioner from custody of tbe warden of tbe jail.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing ou an appeal (specially allowed) by the complainant from an order of the Supreme Court of the District of Columbia dissolving a temporary restraining order granted at the instance of -the complainant in a suit in equity to enjoin execution on a judgment against him. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, entered upon the verdict of a jury directed by the court, in an action upon a promissory note.

<p>Hearing on an appeal by tbe plaintiff from a judgment-of the Supreme Court of the District of Columbia upon the verdict of a jury directed by the court in an action of covetnant.</p> <p>The Court in its opinion states the case as follows:</p> <p>This was an action of covenant instituted in the Supreme Court of this District by the appellants, Jesse C. and William Thomas Love, against the appellee, Samuel H. Stidham, and James W. Jones; the said Jones not having been served with process, the action proceeded to trial against the said Stidham alone, and who is the sole appellee in this appeal.</p> <p>It appears that Stidham and Jones, prior to the 31st day of March, 1896, were engaged in the retail grocery business, at No. 1800 Fourteenth street, northwest, in the city of Washington, District of Columbia, in which business they sold at retail, groceries, provisions, butter, cheese, eggs, poultry, and other articles usually kept in a retail grocery store, and that they conducted said business under the firm name and style of S. H. Stidham & Co. That on the 31st day of March, 1896, they sold out their store to the appellants, with the entire stock of goods on hand, also two horses, wagons, harness and fixtures, together with 'the good-will of the said business, at and for the sum of $3,300. The contract was duly executed under the hands and seals of the parties, and -the premises were duly delivered to the appellants under and in accordance with the terms of the contract, on the day that the contract was executed. By the contract it was provided, that the party of the first part, that is to say, Stidham and Jones, “ shall not enter into the retail grocery business for the period of five years, within one mile of the store building located as herein set forth, and that the said party of the first part hereby assumes all responsibility for the payment of all debts incurred in said business up to and including March 31, A. D. 1896.”</p> <p>There are five counts in .the declaration, but they state the cause "of action with but slight variation,— the breaches assigned being substantially the same in all the counts. The breach in the last count is substantially as follows:— That, the defendants, Stidham and Jones, in open violation of their said covenant, did, on the 20th of April, 1896, enter into the retail grocery business, to wit, the business of selling at retail, groceries, provisions, butter, cheese, eggs, poultry, meats, vegetables, fruits, marketing, and other articles usually kept .and sold in retail grocery stores, within/ one mile of the store building located as aforesaid, at and in the premises No. 1508 S street, northwest, in the city of "Washington, D. C., and at and in and about a certain stall or stand in a certain market house, known as “ Riggs Market,”' situate on P street, northwest, between Fourteenth and Fifteenth streets, in said city, and have or has been so-engaged therein thence continually to the present time, whereby a large number, to wit, one hundred persons, who prior to said last-mentioned date were customers of the-plaintiffs, having become so by reason of -the said purchase by the plaintiffs from the defendants, and who as such customers had been theretofore accustomed to purchase from-- and deal at the said store of the plaintiffs so- purchased by them as aforesaid, large quantities of groceries, provisions, butter, eggs, poultry, meats, vegetables, fruits,, marketing, and other articles usually kept -and sold in retail, grocery stores in said city, have, instead of making such purchases of the plaintiffs, at the store purchased of the defendants, purchased said -articles of the defendants at -the. place or stall in the market aforesaid, in which place or places of business the defendants carried on the retail grocery business, -and the business of selling at retail, groceries, provisions, butter, cheese, eggs, poultry, meats, vegetables, fruits, etc., articles usually kept and sold in retail grocery stores in said city, since the time aforesaid, whereby the business and trade of tire plaintiffs at the said store, have since the said date, been greatly injured and diminished, and by reason of such breach of said covenant, the-plaintiffs have lost a large amount of trade, many customers,. and large profits, and the property so purchased and paid for 'by them, and especially said good-will, have been rendered -of little value in their hands, and they have thus suffered damage in the sum of $10,000, for which they bring suit.</p> <p>To the declaration the defendant Stidham pleaded several pleas, the defendant Jones not appearing. The pleas are as follows:</p> <p>1. That he, said Stidham, did not jointly with his co-defendant Jones, nor did he individually or severally, covenant, promise, or agree, in manner and form as the plaintiffs have alleged.</p> <p>2. That the defendant Stidham did not, with defendant Jones, nor did he individually or severally, at any time since the 31st day of March, 1896, enter into the retail grocery 'business within one mile of premises No. 1800 Fourteenth •street, northwest, in said city of Washington, in manner •and form as alleged.</p> <p>3. That he did not with said Jones, nor did he individually or severally, on the 20th of April, 1896, or at any time since the 31st day of March, 1896, enter into the business -of selling at retail butter, eggs or poultry, being a branch of the retail grocery business, and being also a branch or portion of the business which the defendants had sold to the plaintiffs, and in which the defendants had been engaged prior to the 31st day of March, 1896, etc., as alleged in the third count of the plaintiff’s declaration, in manner and form as alleged.</p> <p>4. That the defendant Stidham did not with said Jones, nor did he individually or severally, on the 20th of. April, 1896, or at any time since the 31st day of March, 1896, enter into the business of selling at retail butter, eggs, poultry, cheese, meats, vegetables, marketing or provisions, being a branch of the business -which the defendants sold to the plaintiffs, in manner and form as alleged in the fourth count of the plaintiffs’ declaration.</p> <p>5. The fifth plea is of former judgment recovered in favor of the defendant Stidham, in an action on the covenant sued on in this case; bnt there was no evidence offered, so far as the present record discloses, in support of that plea, and it must, therefore, be treated as wholly immaterial upon this appeal.</p> <p>Issue was joined upon all the pleas; and upon the trial it was shown in proof, that the defendant Stidham, after the sale of the store and good-will of the business at No. 1800 Fourteenth street, northwest, carried on a business of selling butter, eggs, poultry, and cheese, and that such business was carried on and conducted by said Stidham at stand No. 8 “ Riggs Market; ” and that the plaintiffs lost a considerable-number of their customers by reason of said defendant carrying on said business. The plaintiffs gave in evidence two business cards of the defendant Stidham. The first of which is as follows: “ .S. H. Stidham, dealer in finest grades of Elgin butter, and strictly fresh eggs. Residence: 1508 S Street, N. W. Stand: No. 8, Riggs Market.”</p> <p>The second card is as follows: “ S. H. Stidham, poultry dealer. Dressed poultry a specialty. Residence: 1508 S-Street, N. W. Stand: No. 8 Riggs- Market.”</p> <p>The plaintiffs offered evidence further to prove, that at the time of the sale of the store and good-will of the business to-them the defendant had about seventy-five regular customers who dealt with the plaintiffs for a time after the sale; that very soon thereafter the plaintiffs’ said customers began to drop off, and that the majority of said former customers of Stidham & Co. quit dealing with the plaintiffs from time to time, off and on; that the witness knew and could name about thirty-nine regular customers of said Stidham & Oo. who dealt wholly with the plaintiffs for a time after the-sale, but who entirely stopped dealing with the plaintiffs; that the business comprised dry groceries and green groceries, including butter, eggs, cheese, and poultry. That Stidham, after the sale to the plaintiffs, sold butter, eggs, and poultry from his wagon to certain customers named; that witness saw him at several places delivering goods from his wagon and that he had butter, eggs, cheese, and poultry in it. That the distance of the “ Riggs Market ” from the plaintiffs’ store is three squares, and that of No. 1508 S street, northwest, is one and a half squares'.</p> <p>The witness, on cross-examination, testified that he never knew the defendant Jones to engage in business after the sale to the plaintiffs; that the customers who left the plaintiffs discontinued all purchases from them; that he had never known Stidham to sell sugar, coffee, meats, or any other articles than butter, eggs, cheese and poultry, after the sale of the store and good-will to the plaintiffs.</p> <p>Upon the evidence offered by the plaintiffs, the defendant moved the court to instruct the jury to return a verdict for the defendant, and that instruction was given and the verdict returned for the defendant accordingly. The judgment was entered thereon and the plaintiffs have appealed.</p>

<p>Hearing on an appeal by tbe complainant from a decree of tbe Supreme Court of tbe District of Columbia, sustaining a demurrer to and dismissing a bill in equity to set off a claim ex contractu against a judgment obtained by tbe defendant against tbe complainant on a claim ex delicto.</p> <p>Tbe Court in its opinion stated tbe case as follows:</p> <p>This is an appeal from a decree of tbe Supreme Court of tbe District of Columbia dismissing a bill of complaint filed for tbe purpose of procuring a set-off.</p> <p>On April 9, 1897, tbe appellee, Tbaddeus Alsop, as plaintiff in a suit at common law in tbe Supreme Court of tbe District, recovered judgment for tbe sum of $150 against tbe appellant, Kunigunda Eedarwiseb, wbo is bis motberin-law, on account of an assault and batterv committed upon him by the appellant and two other persons. At the time •of the rendition of this judgment, there was pending in the same court another suit at common law instituted by the appellant as plaintiff against the appellee as defendant to recover the sum of $366.67 on account of various matters of contract. This latter suit was instituted after the appellee’s suit against the appellant. Being the first to prosecute his suit to judgment, the appellee, it seems, threatened to issue execution. Thereiipon the appellant instituted the present proceeding by filing her bill in equity to enjoin the appellee from proceeding.</p> <p>In this bill, after the statement of the counterclaims of the parties, their nature and condition, the appellant alleged her own solvency and the possession of ample estate out of which the appellee’s judgment could be satisfied, and on the other hand the utter insolvency of the appellee, • and that he had no property, real or personal, from which any judgment against him could be satisfied. And the prayer of the bill was that the complainant’s claim should be decreed to be a set-off against the defendant’s judgment; that the judgment should be decreed to be satisfied; that the defendant should be enjoined from executing it; that an accounting should be had; that the complainant should have a decree for any balance that might be found due to her, and for general relief.</p> <p>Upon this bill there was a temporary restraining order issued. Subsequently the appellee filed his answer, and there was joinder of issue.</p> <p>At this stage of the proceedings, the attorneys of the appellee intervened with a petition that they had a lien on the appellee’s judgment for their fees, amounting to $95, which was superior to the appellant’s equity, and asking that the appellant should be required to pay this amount, on penalty of the dissolution of the restraining order in the event of nonpayment. Their claim seems to have been allowed; for they received and receipted for the money, which was paid to them by the appellant.</p> <p>Both the appellant’s suit at law against the appellee and this present proceeding in equity seem then to have been permitted to slumber for some time.</p> <p>By a stipulation filed in this cause it appears that the suit at law was commenced on March 31, 1897; that the appellee filed twelve pleas thereto, including plea of the general issue and the statute of limitations; that to the plea of the statute of limitations there was a replication of a new promise; that ultimately, on May 1, 1897, issues were joined; that on May 4, 1897, the cause was duly calendared for trial; that on December 21, 1898, the cause was sent to the “ stet ” .docket of the court under a rule which provided for such action when a cause remained on the trial calendar for several successive terms without being actually brought to trial; and that, having remained on the “ stet ” docket for upwards of a certain specified period of time without any action looking towards a disposition of it, it was, on February 3, 1900,. at the instance of the defendant, the appellee here, dismissed in the clerk’s office, by the clerk, acting under authority of a rule so authorizing him to do, but which was done without any notice to the plaintiff in the suit.</p> <p>It was not, however, until several months afterwards, on November 2, 1900, that any further action was taken by either party, so far as the record before us shows. On this last-mentioned day a stipulation was filed, entered into by the parties through their respective attorneys or solicitors, whereby it was agreed that the appellee should withdraw his answer and interpose a general demurrer to the bill; that the proceedings in the law cause to its conclusion, as above narrated, should be considered by the court as facts in the case; and that, if the demurrer should be overruled, the complainant should have final decree, as prayed; but that, if the demurrer should be sustained, the bill should be dismissed.</p> <p>Upon the bill of complaint, the demurrer thereto and this stipulation, the cause was heard. The court below sustained the demurrer, and dismissed the bill; and from the decree of dismissal the present appeal has been prosecuted.</p>

Hearing on. an appeal by tbe complainant from a decree of tbe Supreme Court of tbe District of Columbia dismissing a bill of complaint for a divorce on tbe ground of desertion, filed by a busband. Tbe facts are sufficiently stated in tbe opinion.

Hearing on an appeal from an order of the .Supreme Court of the District of Columbia, overruling a motion to quash a writ of certiorari to a justice of the peace, and vacating a judgment of the justice and a writ of execution issued thereon, and remanding the cause to the justice with directions to proceed therein according to law.

<p>Hearing on an appeal by a defendant indicted for murder from a judgment of tbe Supreme Court of the District of Columbia entered upon the verdict of a jury finding him guilty of the crime of manslaughter.</p> <p>The Court in its opinion stated the case as follows:</p> <p>The appellant, James Lanckton, was indicted on May 11, 1900, for the murder of one Betty L. Wren in the District of Columbia. On November 17, 1900, he was convicted of manslaughter, and was subsequently sentenced to imprisonment in the penitentiary for eight years, after motions in arrest of judgment and for new trial had been overruled.</p> <p>The evidence on behalf of the Government tended to show the following facts: Bettie L. Wren was a clerk in the office of a pension attorney and was about fifty-four years of age. She occupied a bouse in the Oity of Washington, No. 634 E street, southwest. Lanckton was about sixty-six years of age, and first met Mrs. Wren in the office where she was employed, He shortly afterwards went to live in her house by her invitation, and apparently without charge. He claimed to have become engaged to be married to her. He was sometimes intoxicated, and then used abusive language to her, and threatened to kill her and another man who occupied a room in the house. On the night of the 12th of March Mrs. Wren called in a policeman and complained that Lanckton had struck her. He was intoxicated. She, at first, wanted him taken away, but finally consented to his remaining. March 14th she kept her bed, complaining of pain and weakness. She sent for a servant to nurse her, to whom she said, in Lanckton’s presence and hearing, and without his denial, that he had struck her. The left side of her face was swollen and one eye closed. March 17th, a physician was called in. He found her in a semi-comatose state. The pupil of one eye was dilated; the other contracted. The left eye was blackened and had an abrasion upon it. She said in the presence of Lanckton that he had struck her a blow. He was drunk, and the physician compelled him to leave the house. She was removed to the Columbian Hospital, in the city of Washington, on March 19th, and died there March 29, 1900. An autopsy made by the deputy coroner, a competent surgeon, disclosed a large and fresh blood clot within the left side of the skull, and an exceedingly small one at or in the base of the brain at the back of the head. Other organs of deceased were in apparently healthy condition. The opinion formed was, that the blood clots were the result of a blow received upon the left side of the head; or might have been caused by falling and striking the head upon the floor.</p> <p>An aged, crippled and practically deaf and dumb sister of the deceased was examined by the Government, and was the only witness who saw the assault. She testified by síots, and these were interpreted by a servant who was familiar with them and could communicate with her.</p> <p>Before she was permitted to be introduced as a witness, the justice presiding caused her to be carefully examined by Doctor Gallaudet, of the Institute for the Deaf and Dumb, who pronounced her competent to testify, and the servant competent to interpret her signs. The court was satisfied from her signs that she comprehended the nature of an oath. No objection was offered to her competency, or to that of the interpreter. Her testimony was very brief, indicating that she saw Lanckton strike her sister on the head with his hand or fist.</p> <p>Lanckton, testifying on his own behalf, denied striking the deceased. He attributed her injury to a fall that she had received. He said that she had been complaining of weakness, and asked him to assist her to rise from her bed and sit upon a stool by its side.</p> <p>Whilst seated upon the stool, she fell to the floor, striking her head, and was unconscious for a time. He also denied that she had charged him with striking her. He said he had been drinking heavily before and after the 12th of March, and that he was intoxicated when ordered by the physician to leave the premises.</p> <p>Medical experts, on behalf of the accused, testified that the formation of the blood clots might have been, and most probably had heen, caused by a diseased state of the blood vessels of the brain.</p> <p>They had not seen the deceased, either before or after death, and formed their opinions on the general evidence and the statement of the depiuty coroner of the details of the autopsy. They thought his opinion unreliable because he had not made an examination of the brain and the blood with a microscope.</p> <p>On cross-examination of the defendant it appeared that he had spent the bulk of his life in a circus as an exhibitor of feats of strength.</p> <p>The defendant was duly arraigned and pleaded not guilty, but was, subsequently, permitted to withdraw the plea and file the following motion to quash the indictment:</p> <p>“ 1. Said indictment purports to have' been found and returned by a grand jury into tbe Supreme Court of tbe District of Columbia, holding a criminal term, known as the April term, A. D. 1900, and there is no record in said court showing that the same, holding a criminal court for the April term, 1900, was ever organized as required by law.</p> <p>“ 2. There is nothing in the record showing that on the first day or any other day of the April term, 1900, of said court there was present, at the time of any organization thereof, any officer other than the presiding judge.</p> <p>“ 3. That part of the record of the April term, 1900, of said court purporting to show the proceedings before the Supreme Court of the District of Columbia, holding a criminal court, division No. 1, for the trial of crimes and offenses arising within the District of Columbia, does not state or show that there was any clerk of said court or deputy clerk of said court or any United States marshal or deputy United States marshal for said District present, nor' does the record of said court show who of the members constituting said court were present, or who went to constitute the court, nor does it show where the said court was held.</p> <p>“ é. There is nothing in the record of the Supreme Court of the District of Columbia for the April term, 1900, which shows that said court was held at the place fixed and designated by law for the holding of said court.</p> <p>“ 5. The record does not show that there was at the April term, 1900, of the Supreme Court of the District of Columbia a grand jury, duly and legally organized, with authority to discharge the legal duties incumbent upon a grand jury in and for said District, for the April term, 1900, of said court.</p> <p>“ 6. The record does not show that the said indictment was found and returned into court by a legally constituted grand jury.</p> <p>“ 7. The record does not show the place where the court was sitting at the time which said indictment purports that it was returned into corirt, nor does it show what officers of the law then constituted said court.</p> <p>“ 8. There is in the minutes purporting to be the minutes of division 1 of the Supreme Court of the District of Columbia for the April term for the trial of crimes and offenses arising within said District, at the April term of the court for the year 1900, that which purports to be an organization of the grand jury, wherein it is stated ‘ William EL II. Cissel is appointed by the court as foreman of the grand jury/ and the indictment in this case is marked ‘ A true bill. W. EL H. Cissel, foreman.’ Said indictment is not marked ‘ A true bill. William H. H. Cissel, foreman.’</p> <p>“ 9. There is nothing in the record which shows that said indictment was found with the concurrence of at least twelve grand jurors, nor that it was returned into court in the presence of at least twelve grand jurors.</p> <p>“ 10. There is no record of said court showing that the grand jury ever found or returned into court any valid legal indictment against said defendant.</p> <p>“ 11. There is not made or stated in said indictment, as by law is required to be, the estate or degree or mystery of the said defendant, nor of the town or hamlet or place or county of which he was and in which he was conversant at the time of the alleged finding of said bill of indictment, to wit, May 11, 1900.</p> <p>“ 12. It is not stated or averred in said indictment that the said James Lanckton was of or conversant or residing in the county of Washington, District of Columbia, on May 11, 1900, the time at which said indictment was filed in said court.</p> <p>“ 13. It is not shown or stated in said indictment that the grand jurors comprising the grand jury for said term of said court were in or of the county of Washington, in the District of Columbia.</p> <p>“ IE. There is nothing in the record of said court, nor in said indictment, which shows that the grand jurors who it is alleged found said indictment and returned it into court were legal or competent grand jurors, either of the county of Washington or the District of Columbia.</p> <p>“ 15. It is alleged in said indictment that the said James Lanckton, on March 12, 1900, at the District aforesaid, and in a certain house there situate, did feloniously, willfully, and with malice aforethought make an assault upon one Betty L. Wren. The said indictment is insufficient in that it does not more particularly locate and describe the said certain house, and said statement in said indictment is vague, indefinite, and insufficient in law.”</p> <p>This motion is incorporated in the bill of exceptions, which shows that it was overruled and that exception was reserved. The records of the court relating to the empanneling of the grand jury and the return of the indictment are not set out in the bill of exceptions. The printed record prepared under the rules of this court shows that the indictment was filed in open court May 11, 1900. It contains the usual recital of presentation by the grand jurors of the District of Columbia, and sets out the offense of murder in two counts. The assault is charged as of the 12th of March, 1900, and the death as its result on March 29th, in the District of Columbia, without further specification of place.</p> <p>The indorsement on the back of the indictment shows number and title of case, names of the witnesses and concludes as follows: “A true bill” (signed) “W. II. H. Cissel, foreman.”</p> <p>After the motion was overruled, the defendant was not rearraigned, but entered a plea of “ not guilty ” and the trial proceeded. After verdict, a motion in arrest of judgment was filed, founded on the objections set out in the motion to quash, which was also overruled, with exceptions reserved. Motion for new trial was then filed and overruled.</p> <p>[The further material facts will be found stated in the opinion.— Reporter.]</p>

<p>Hearing on an appeal (specially allowed) by one of several defendants from an interlocutory judgment of the Supreme 'Oourt of the District of Columbia, sustaining a demurrer to' a plea puis darrein continuance, in an action on an «executor’s bond against the principal and sureties.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is a suit on an executor’s bond givein in the orphans’ court branch of the Supreme Court of the District by John Taylor, as executor of James Taylor, 'deceased, with the appellant, Thomas Blagden, and' George W. White as sureties, conditioned for the faithful performance of his duties by said executor. The suit was instituted in the name of the United States, to which the bond was executed, as plaintiff, for the use of four infant children, suing by their guardians, against the executor and his two sureties. The declaration, after stating the execution of the bond, and its condition, and making proferí thereof, proceeded to allege as the breach of the condition the failure of the executor to pay to the infant plaintiffs the sum of $466.99, shown by his second and final account of his executorship, duly approved and passed by the court, to be due to each one of the said infant plaintiffs as his or her distributive share of the estate of the aforesaid James Taylor, deceased, or the sum of $1,867.99 in all, subject to some credits aggregating $286.90. It alleged the bond to have been executed by Taylor, as principal, and by Blagden and White, as sureties; but it did not in express terms state whether it was a joint, or a joint and several, or a several bond.</p> <p>Whether the defendant White was served with process, does not appear from the record. Taylor and Blagden were served with process. Blagden pleaded, and Taylor made default; and judgment final by default was rendered against the latter. Thereupon Blagden filed a plea puis darrein continuance to the effect that the judgment against Taylor operated as a release of himself from liability on the bond; and he filed as part of his plea a copy of the bond, from which it appeared that this latter was in terms a joint and several bond.</p> <p>The plea was demurred to by the plaintiff, and the demurrer was sustained; and from the order sustaining the demurrer the defendant Blagden has been allowed a special appeal to this court.</p>

Hearing on an appeal by the complainant from a deorea of the Supreme Court of the District of Columbia dismissing a bill in equity for an injunction and to remove an alleged cloud upon the title of certain real estate. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the plaintiffs from a judgment of the Supreme Court of the District of Columbia entered upon the verdict of a jury in an action to recover damages for an alleged wrongful discharge of water on the plaintiffs’ land from an artificial ditch draining the defendant’s railroad tracks. The facts are sufficiently stated' in the opinion.

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

Hearing oil an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia, entered upon a verdict directed by tbe court in an action of covenant. Tbe Court in its opinion stated tbe case as follows: This is an action upon a contract under seal to recover tbe sum of $3,888.10 on account of time lost and extra expenses incurred through delay caused the plaintiff in the performance of his undertaking.

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

Hearing ou an appeal by the United States marshal from an order of the Supreme Court of the District of Columbia, discharging the petitioner in habeas corpus proceedings from custody.

<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 tbe complainant from a decree of tbe Supreme Court of tbe District of Columbia dismissing a bill in equity to enjoin proceedings at law.</p> <p>Tbe Court in its opinion stated tbe case as follows:</p> <p>This is a suit in equity instituted in tbe Supreme Court-of tbe District of Columbia by tbe Baltimore and Obio Kailroad Company, tbe appellant bere, as complainant, against tbe appellees, as trustees under tbe will of Catherine Bear-son, deceased, to enjoin certain proceedings at law begun by said trustees to recover tbe possession of lots- numbered 9, 10, 11 and 12, in Square 710, in tbe City of Washington, held by said railroad company, and over which tbe tracks of its Metropolitan branch are constructed.</p> <p>Catherine Pearson, who died prior to August 1, 1872, and who, at tbe time of her death, was tbe owner of tbe lots of ground mentioned, left a will whereby she, after some bequests not here important to be stated, devised all the rest and residue of her estate, which included the lots in question, to trustees therein named upon certain specified trusts. It is this portion of the will which enters into the present controversy; and it reads as follows:</p> <p>“ All the rest and residue of my estate, real and personal, wheresoever situated, I give and devise to Carlisle P. Patterson, William H. Philip and Walter S. Cox, or the survivors or survivor of them, to be by them held as trustees for the sole and separate use of my dear daughter Eliza Patterson during the term of her natural life, and so that the same shall not be liable for the debts or subject to the control, contracts or engagements of her present or any aftertalcen husband; to permit her by herself, or her special attorney appointed in writing to be signed by her, to receive the annual income and profits of the same for her own sole and separate use, her receipt or that of her attorney so appointed as aforesaid alone to be an acquittance to the person or persons charged with the payment of such income or any part of the same and to the extent only therein expressed to have been paid; and if she pleases to occupy, possess, and use for her own account, accommodation, and convenience and that of her family any part of the property, real and personal, so held for her separate use and benefit, she shall be allowed to do so; and if at any time the said Eliza Patterson shall, in writing to be signed by her in the presence of and to be attested by a subscribing witness, desire the said Carlisle P. Patterson, William H. Philip, and Walter S. Cox, or the survivors and survivor of them, to sell any part of the estate, real and personal, held by them for her separate use, for the purpose of changing the investment thereof, it shall be lawful for the said named trustees, or the survivors and survivor of them, to sell the same for such purpose, and to transfer and convey the absolute estate in fee therein, to the purchaser thereof; and. to invest the same in such manner as the said Eliza W. Patterson may require; and such new investment shall be held by the said trustees for the same use, trusts and purposes and with the same powers and authority of sale and reinvestment as is herein declared of and concerning the original trust subject and separate estate.</p> <p>“ And after the death of the said Eliza W. Patterson the said named trustees and their successors shall hold the said trust subject and separate estate, original and subsequently acquired by sale and reinvestment, for the use and benefit of any child or children of the said Eliza W. Patterson, and the issue of any child or children of the said Eliza who may die leaving issue in the lifetime of said Eliza, and such issue shall take the share or portion of the said estate which their parent or parents would have taken had they survived the said Eliza. And if the said Eliza W. Patterson shall die without leaving a child or children, or issue of any child or children, living at the time of her death, the said trustees and their successors shall hold the said trust subject and separate estate for my right heirs. And if it shall happen that either of the said trustees shall die, or become incapable of acting, or shall refuse to act in the execution of said trusts, then and in every such case, the continuing trustees or trustee shall from time to time nominate some other person or persons, to be approved by the said Eliza W. Patterson, to be trustee or trustees in the place and stead of the person or persons so dying or becoming incapable or refusing to act, and shall convey and settle the said trust subject and separate estate in such manner that the same shall be legally vested in such continuing trustees or trustee, and such person or persons so named and appointed to that office for the same use, trusts and purposes and with the same power and authority of administration, sale and reinvestment, as is hereinbefore declared of and concerning the said trust subject and estate, and the said new trustee or trustees shall have the same power to act in the premises in conjunction with the continuing trustees or trustee and as survivors of them, as if they had been originally named trustee or trustees in the premises in this my last will and testament.”</p> <p>This will purports to have been executed on December 4, 1862. Of the trustees named in it Carlisle P. Patterson was the husband of the beneficiary, Eliza W. Patterson, who yet survives. He has departed this life, as has also his co-trustee, William H. Philip; and the third trustee, the Hon. Walter ,S. Cox, late one of the justices of the Supreme Court of the District, has resigned and been discharged from the trust. In their places the appellees, Francis Winslow, a son-in-law of Mrs. Eliza W. Patterson; Augustus Jay, a grandson of .the testatrix Catherine Pearson, and the American Security and Trust Company, a body corporate in this District, have from time to time been appointed; and they now hold the trust estate mentioned under the will of Catherine Pearson.</p> <p>By an act of Congress of July 25, 1866 (14 Stat. 250), the Baltimore and Ohio Railroad Company had been authorized to extend the Metropolitan branch of its road into the District of Columbia, with the same rights as it held in Maryland, including the right to acquire property by purchase or condemnation for the construction and use of the road; and subsequent statutes empowered it to extend said branch into the city of Washington over a specified route. This route comprised the lots of ground hereinbefore mentioned. While the railroad company was engaged in the construction and completion of this work, instead of acquiring the lots in question by condemnation, it entered into a lease with the trustees under Mrs. Pearson’s will, who were then the original trustees named by the testatrix, whereby the trustees leased the lots to the railroad company for a term of five years from and after August 1, 1812, on the payment of the yearly rental of $755.55 in each and every year, with the privilege to the railroad company to purchase the property at any time during the term for the sum of $12,592, and to receive a good and sufficient deed thereof; and with the further privilege that, at or before the expiration of the term, on the request of the railroad company, the trustees would renew the lease, with the same agreements and privileges, for another term of five years, or until such time as they would be prepared to convey the premises with perfect title in fee-simple; and also with the further provision that, in the event of the omission of the railroad company to make a request for the renewal of the lease at or before the expiration of the term, the trustees were required to notify the company of such expiration, and to request it to exercise its election to renew the lease, and the privilege of renewal should continue for three months after such notice.</p> <p>There seems to have been no formal renewal of this lease at the time of its expiration in 1877; at least no renewal is disclosed by the record. But on February 1, 1883, another lease to the railroad company for a term of five years from and after August 1, 1883, was executed by the then existing trustees, Walter S. Cox, Augustus Jay and Francis Winslow, with whom the beneficiary, Mrs. Eliza W. Patterson, herself also joined in the execution of the instrument, wherein there was no reference to any previous lease, but the rent reserved was the same as in the lease of 1872, that is, $755.55 a year, as were also the privileges for purchase at $12,592, and for further renewal.</p> <p>Again on January 30, 1888, another lease, identical with the last in every respect except the dates, and except also, that Mrs. Patterson herself did not execute it as a party, was executed by the same trustees and the railroad company for a term of five years from and after August 1, 1887.</p> <p>On October 17, 1892, a new lease, identical in terms with the previous one and purporting to be made by the same' trustees, for a further term of five years from and after August 1, 1892, was executed and delivered to the railroad company by Francis Winslow alone, as trustee. It would seem that Mr. Justice Cox had then withdrawn from the trust and no successor to him had been appointed, and that the other trustee, Jay, was absent in Europe, where he had become domiciled; so that Winslow at this time, although himself often absent from the District of Columbia and from the United States, remained the only active trustee.</p> <p>No other formal lease seems to have been executed. But on August 4,1897, three days after the expiration of the last mentioned, the railroad company notified the trustees of its desire for a renewal for a further term of five years. To this request Mr. Justice Cox replied that he was no longer trustee, and that Jay was absent in Europe; and he referred the company to Winslow as the acting trustee. Winslow, in eourse of time, answered the request in the following terms in a comm unication to one of the attorneys for the company:-</p> <p>“ My understanding is that originally the railroad company, wishing to purchase the property, could not do so on account of some deficiency ifi the title. The immediate use of the property being necessary, a lease was made, but in such form as would compel the transfer of the lots at the price agreed whenever a clear title could be given. Pending the transfer, the railroad company was to pay 6 per cent, on the deferred payment. The renewal of the lease has always been made under the same reciprocal conditions and obligations, and I do not feel authorized to change them; but I suggest, as we are now able to furnish a satisfactory title, the present is a suitable time to transfer the property. I inclose a more formal notice in reply to a letter received from the railroad authorities.”</p> <p>The more formal notice referred to was in the following terms:</p> <p>“In reply_to your letter in relation to the renewal of the lease of the lots in Square 710 in this city, I beg to say that we are now prepared to convey the property with a perfect title, and prefer executing such conveyance to renewal of the lease.”</p> <p>This was on September 27, 1897. During the whole period from the beginning of the first lease in 1872 it seems that checks for the rent as it became due were drawn by the railroad company to the order of the trustees and were indorsed by the trustees, or by one of them in the name of all, to Mrs. Eliza W. Patterson, who was entitled to receive the money under Mrs. Pearson’s will. Frequently Mrs. Patterson was in communication with the officers of the railroad company with reference to these checks, and how they were to be drawn, and where they were to be sent. These communications continued as late as February 5, 1898,-on which day she requested some modification of a check that had been sent to her on account of the absence both of Jay and Win-slow, the trustees, from the United States; and she continued to receive the rent, which seems to have been paid semi-annually, up to August 1, 1898.</p> <p>On August 12, 1898, a check was sent to Winslow, trustee, by the company, for $311.11, apparently for the semiannual rent due and payable on August 1, 1898. This check was received by Winslow, but not cashed; and on inquiry by the company in regard to it in January of 1899, Win-slow wrote, under date of January 31, 1899, the following letter to the company’s treasurer:</p> <p>“I am in receipt of your letter of January 20th in relation to the voucher for rent for the premises in Washington. The voucher was received, but pending advice of counsel no action was taken in regard to it. I am advised that the company are and for some time have been only tenants at sufferance; and I have notified Mr. McCubbin (land agent of the company) of that fact, and invited a proposition from the company. . Pending a more definite arrangement than now exists, I do not feel justified in accepting payments without the company’s full understanding of my position, and have therefore suspended action on the voucher.”</p> <p>Further correspondence ensued between Winslow and the land agent of the company, of which the result was that the company first requested a new lease and finally tendered itself ready and willing to pay the purchase money, the sum of $12,592, specified in the agreements heretofore mentioned, upon the execution and delivery to it of a proper deed; and that Winslow declined both propositions, with this statement: “We prefer to sell the property rather than lease it, but neither in case of sale or lease could we be governed by conditions or prices existing some twenty-five years ago.” It appeared that the property had become appreciated in value, the testimony in the record being that it is now worth upwards of $30,000.</p> <p>There were further negotiations continued until about the end of February, 1900, without definite result or special bearing upon the controversy as ij; now stands before ns; and they need not, therefore, be here stated.</p> <p>Finally the controversy culminated in legal proceedings. On March 8, 1900, in pursuance of a previous notice to quit, the appellees here, as the existing trustees, instituted proceedings before a justice of the peace to dispossess the company and to recover possession of the property. The company, not desiring to have two trials, permitted judgment to be entered by the justice by default, and forthwith appealed from such judgment to the Supreme Court of the District of Columbia, wherein the cause is yet pending. Subsequently, and while the said proceeding was so pending, the company instituted the present suit by filing its bill in equity to restrain the said proceeding at law, and also another suit which had been instituted to recover for use and occupation; and also to have a conveyance of the property at the price and according to the terms of the lease of August 1, 1872, and the several subsequent renewals thereof; and, if necessary, for a further renewal lease for five years from August 1, 1897; and also for general relief.</p> <p>There was a temporary restraining order issued, which was afterwards continued to the final hearing. Thereupon answer was filed, and testimony was taken. At the final hearing, the court below dissolved the injunction and dismissed the bill of complaint; and from the decree the present appeal has been prosecuted.</p>

Hearing on an appeal by the Commissioners of the District of Columbia, from an order of tbe Supreme Court of tbe District of Columbia overruling a motion to vacate a temporary restraining order and continuing tbe same until final bearing, and also on a motion by tbe appellee to dismiss tbe appeal. Tbe facts are sufficiently stated in the opinion.

Hearing on an appeal by tbe defendant from a judgment of conviction of tbeft of tbe Supreme Court of tbe District of Columbia; and sentence tbereon, upon the verdict of a jury in tbe trial of an indictment for tbeft and embezzlement, Tbe Court in its opinion stated tbe case as follows: Tbe appellant, George E. Davis, was indicted in tbe Suprenie Court of tbe District for the tbeft of $1,000 from tbe Southern Express Company, lias been tried and convicted, and appeals from…

<p>Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia, entered upon tbe verdict of a jury in an action to recover damages for breach of a contract concerning land and tbe use and occupation of it.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is a suit at common law wherein the appellee, Florence McDevitt, recovered damages in the Supreme Court of the District for the breach of a contract which had been -entered into between herself and the appellant, The Eckington and Soldiers’ Home Kailway Company.</p> <p>The appellee owned and resided upon a tract of land, comprising upwards of twenty acres, situated on the east side of Lincoln avenue, in this District, about three-quarters of a mile northward of the northeastern boundary of the city of Washington, but within the lines of the proposed extension of certain streets- of the city. The appellant, a city and suburban railway company organized under acts of Congress of the United States for this District, owned and operated a street railroad, constructed along Third street northeast as far as T street northeast, or rather such T street as extended or proposed to be extended, and which from the point of intersection of these two streets was constructed and operated eastward along the line of T street, away from the land of the appellee. It was desired by the railway company to extend its road to the northwestward over the land of the appellee so as to reach the gates of three cemeteries which bordered upon Lincoln avenue; and accordingly, on April 4, 1889, an agreement was- made between the appellant and the appellee, whereby the appellee contracted to convey to the appellant, and its successors and assigns forever, a right of way sixty feet in width through her land following the line of the proposed extension of Second street -east and V street north to the east line of Lincoln avenue, and to execute and deliver to the appellant her promissory note for the sum of $500, payable, with interest, on or before five years thereafter; and the appellant on its part contracted, as the condition of the grant, that it would complete the extension of its tracks on the lines indicated on or-before October 1, 1889; that it would establish certain grades on the lines of street within the appellee’s land which it was-to occupy, and that after the extension should be completed and opened for traffic it should run a car thereon to Lincoln avenue at least once in thirty minutes between the hours of 7:30 a. m. and 6 p. m., and at least once an hour thereafter to 9 p. m., and one car at 11 p. m.</p> <p>This contract was executed under seal by the appellee and her husband, of whom the latter has since deceased; and it. was executed by the railway company by its president, but without any seal.</p> <p>The appellee in due time executed and delivered to the appellant the deed of conveyance provided for in the contract and the promissory note for $500 stipulated to be made. The deed, which bore date on December 27, 1889, contained the covenant for the running of cars which was agreed on in the contract to be done by the railway company.</p> <p>The railway company on its part constructed the branch road so proposed to be constructed over the right of way so conveyed, and continued to maintain and operate the same until the early part of the year 1893, when it ceased to run any car on this branch road after 6 o’clock p. m. Thereupon, on June 26, 1893, the appellee filed a bill in equity to enforce specific performance of the contract of April 4, 1889, so that the cars should be run at the specified hours. The appellee filed an answer to the bill, wherein it admitted the execution of the contract and the grant of the right of way in pursuance of it, but sought to excuse its failure to carry out its part of the contract by the running of cars on the ground that this branch road was unprofitable. It alleged also, apparently as matter of defense, that the appellee’s land was cut into two parts by the extension of the road, and was for that reason rendered less valuable for subdivision into building lots. It objected also, that the appellant’s obligation under the contract was such a continuing one as could not well be the object of specific performance in equity, and that there was ample remedy for the complainant at law.</p> <p>On July 9, 1894, this bill of complaint was dismissed, without prejudice to the right of the complainant to resort to such remedy at law as she might be advised.</p> <p>In June or July of 1893, almost immediately after the institution of the suit in equity which has been mentioned, the appellant wholly ceased to run any cars on this branch line; and soon after the dismissal of the suit the attorney of the appellant notified the attorney of the appellee that the company would not perforin the contract. The appellant was then notified by the appellee to remove its tracks from her land, and that she would bring suit for damages. Accordingly, on August 8, 1894, the present suit ivas instituted.</p> <p>The declaration contained two counts, the first of which was founded upon the express contract of April 4, 1889, and the second of which also was founded upon express contract, but not stated to be in writing. Both alleged performance of the contract by the plaintiff, here the appellee, and the breach of it by the defendant company by its failure to run its cars as stipulated. The defendant company pleaded to the declaration as a whole that it had not promised as alleged; that the value of the plaintiff’s land had not been diminished, and that the plaintiff had evicted the defendant and thereby prevented the running of the cars and extinguished the right of action. To these pleas there were replications filed, and finally joinders of issue; and-the cause went to trial.</p> <p>At the trial the execution of the contract of April 4, 1889, full compliance with it by the plaintiff, except as to payment of the promissory note for $500, and breach of the contract by the defendant, were fully and conclusively proved and were not sought to be controverted on behalf of the defendant. Various objections were interposed by the defendant to the introduction of testimony, all of them without merit, and all of them covered by repeated and long-established adjudications which it would serve no good purpose to cite. Among the objections were that the contract of April 4, 1889, did not hear the corporate seal of the company, and that there was no proof of any charter provisions authorizing the construction by the company of the tracks in question. To the introduction in evidence of the proceedings in equity, to which reference has been made, and which were introduced as evidence of admissions on the part of the railYoad company, objection was made on tbe ground that tbe bill had been dismissed without prejudice. A paper was offered in evidence on the part of the plaintiff showing a subdivision of the land in accordance with which she had sold lots in it, and of which sales she stated the several prices paid; and to this paper objection was made because it was not recorded among the land records of the District.</p> <p>The only real question in the case for determination by the jury was that of the amount of damages to be awarded for the conceded breach of the contract. In elucidation of this question witnesses were introduced who had purchased some lots of the land from the plaintiff, and the testimony was also introduced of persons acquainted with the value of this and adjacent property. This testimony was directed to show the difference between the value of the property, with the railroad in operation according to the contract between the appellant and the appellee and the value thereof after the operation of the railroad had ceased. Similar testimony was introduced on behalf of the defendant to show that part at least of the alleged depreciation was due to the financial panic of 1893, and the consequent stagnation in the matter of the sale of real estate for several years thereafter.</p> <p>Instructions on the measure of damages were requested on behalf of the plaintiff, which were given. Nine special instructions on behalf of the defendant, which were refused by the court, were to the effect that the plaintiff was not entitled to recover at all, or at most only nominal damages.</p> <p>The jury returned a verdict for the plaintiff in the sum of $15,000.</p> <p>Motions for a new trial and in arrest of judgment were made on behalf of the defendant. The former it is not for us to consider. The motion in arrest of judgment was based on the ground that the two counts of the declaration stated different causes of action, and that the verdict being general did not indicate upon which count it was based; and also that it did not appear that the promissory note for $500 herein-before mentioned had ever been paid, or that tender of pay* ment had ever been made. At the same time application was made on behalf of the plaintiff for amendment of the verdict so as to show that it was based upon the first count of the declaration; and the second count was withdrawn. The plaintiff’s application was allowed; the second count of' the declaration was withdrawn; the verdict was amended so that it should purport to be based on the first count; and the defendant’s motions for a new trial and in arrest of judgment were denied.</p> <p>Thereupon judgment was rendered in favor of the plaintiff for the amount of the verdict, the sum of $15,000; and from this judgment the defendant has appealed.</p>

<p>Hearing on an appeal, by the defendant, from a judgment of the .Supreme Court of the District of Columbia entered upon the verdict of a jury in an action to recover damages for the alleged unlawful seizure and detention by the defendant, the United States marshal for the District of Columbia, of a stock of goods.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an application to this court for the allowance of a special appeal from an order of the Supreme Court of the District of Columbia refusing to grant a'preliminary injunction in a suit in equity by Lone Wolf and other Indians of the Kiowa, Comanche and Apache tribes to enjoin the respondents, Ethan Allen Hitchcock, Secretary of the Interior, William A. Jones, Commissioner of Indian Affairs, and Binger Hermann, Commissioner of the General Land Office, from opening to…

Hearing on several separate appeals taken from a decree of tbe Supreme Court of tbe District of Columbia, ratifying and confirming a report of tbe auditor of that court, distributing certain funds in regard to which there were conflicting claims for priority of allowance. Tbe Court in its opinion stated the case as follows: Tbe record before us presents four appeals, numbered, respectively, 1081, 1082, 1083, and 1084, as they stand upon tbe calendar of this court.

<p>Appellate Practice; Time for Filins Transcript of Record; Rules of Court.</p> <p>1. Under Rule XV of this court requiring an appellant to file a transcript of the record in this court within forty days from the time of the appeal entered and perfected in the court below, unless such time be extended by that court, the forty days, in case of an appeal by the District of Columbia, begins to run from the day that the appeal is entered and not from the day of the approval of the appeal bond as in ordinary eases, as the District of Columbia is not required under the law to give an appeal bond for costs or to stay execution.</p> <p>2. An order of the lower court extending the time within which to file a transcript of the record on appeal to this court, passed after the expiration of the forty days within which such transcript must be filed under Rule XV of this court, is erroneous, and an appeal docketed in this court under such circumstances will be dismissed.</p> <p>3. Where an order of the court below extending the time for the filing of the transcript in this court in the case of an appeal by the District of Columbia was not applied for and obtained until after the expiration of the forty days within which a transcript of the record must be filed in this court, such failure will not be excused by the fact that it was due to an oversight on the part of an assistant to the attorney for the appellant, who had been directed to procure such order within the prescribed time, but had neglected to do so, and such an appeal will be dismissed.</p> <p>4. The rules of this court regulating the matter of appeals and the preparation of the same for hearing have the force of law and are binding upon the court and suitors and those who represent suitors, and cannot be dispensed with by the court to meet the apparent hardship of any particular ease, in the absence of fraud.</p> <p>5. An appellee, to defeat an appeal, would not be allowed to set up a rule of this court requiring a transcript of the record on appeal to be filed in this court within a prescribed time, where the filing of. the transcript within such time was prevented by the fraud or contrivance of the opposite party, or by the contumacy of the clerk, without any want of diligence on the part of the appellant.</p>

<p>Hearing on an appeal by tbe respondents, tbe Commissioners and the building inspector of tbe District of Columbia, from a judgment of tbe Supreme Court of tlie District of Columbia, directing a peremptory writ of mandamus to-issue to them requiring them to grant a permit to tbe relator to erect certain dwelling-houses on land owned by bim.</p> <p>Tbe Court in its opinion stated tlie case as follows:</p> <p>Tbis is an appeal from a judgment of tbe Supreme Court of tbe District of Columbia ordering a peremptory writ of mandamus to issue to the Commissioners, and to John [B. Brady, building inspector of the District, compelling the grant of permission to the relator, Frederick J. Miller, to build upon certain lots in the city of Washington according to a plan presented by him.</p> <p>The petition filed by the United States on the relation of Frederick J. Miller alleges the following facts:</p> <p>1. Delator is a citizen of the United States, residing in the District, and since October 4, 1900, has been the owner in fee-simple of certain land in the city of Washington, known as part of original lot 1 in square numbered 950. The said part of lot has a front of thirty-two feet on Tenth street, and a depth of forty-six feet and four inches; and is unimproved.</p> <p>2. Delator proposed to erect on said land two two-story and basement brick dwellings with six rooms each; each house was planned to front sixteen feet on Tenth street and extend back thirty-six feet, thus covering the entire frontage and leaving an open space in the rear of ten feet and four inches, which is wider than that required by the building regulations of the District Commissioners.</p> <p>3. The plans and specifications for said houses were prepared by an architect and conformed, in respect of materials, safety, etc., to the requirements of the said building regulations and the suggestions of the inspector.</p> <p>4. Application was then formally made to said inspector as required for the necessary permission to commence building; but this was refused, “ not because of any want of conformity of said plans and specifications to the building regulations in the matter of materials, workmanship', and provisions for the safety of the public, and the health of the persons who might inhabit said houses when completed, but because said land was not subdivided as required by the provisions of the building regulations, relating thereto.”</p> <p>5. Section 34 of the building regulations declares that “no dwelling-house less than sixteen feet wide shall be erected; provided, however, that any existing lot that is not less than twelve feet wide, and which is a part of a duly recorded subdivision, may have a dwelling erected thereon the full width of the lot. Blocks of two or more dwelling-houses shall not be erected until the land upon which they are to be erected has been subdivided, so that each house shall have a separate lot, unless special permit be granted in each case by the Commissioners.”</p> <p>A fee is provided for each “ permit,” and a penalty for failing to obtain the same before building.</p> <p>6. Pursuant to authority of an act of Congress, the Commissioners had also promulgated rules regulating the subdivision and record of subdivisions of lots. Under these, plats were to be certified and filed in a certain manner, and section 6 of the same, provides that lots may only be subdivided into lots not less than sixteen feet wide and fifty feet deep. Certain exceptions are permitted, which are not material here.</p> <p>A Belator applied to the District surveyor, with tender of fees, etc., as required, to make and certify a plat for record dividing his sublot of thirty-two feet by forty-six feet and four inches, into two lots each with sixteen feet frontage on Tenth street.</p> <p>This was refused, and upon application to the Commissioners they declined to order the same done.</p> <p>8. The Commissioners refuse to allow the building permit, “ because the said proposed lots are not of the required depth of fifty feet,.and for no other reason.”</p> <p>9. “ Belator further avers that the depth of fifty feet required for each lot, before a permit to erect a building shall under any circumstances be granted, is not necessary to health and safety in the construction of dwellings, but is an arbitrary and unnecessary requirement.” And further, that prior to the promulgation of the regulations, many such buildings had been erected and are “ still standing and occupied, and are safe and healthful habitations.”</p> <p>10. Averring tender of the lawful fees, and renewing the offer to pay the same, the prayer is for a judgment commanding the issue of said permit, etc.</p> <p>The return of the Commissioners to the preliminary order to show cause, (1) admits the substantial allegations of the petition, and bases their refusal upon the provisions of the acts of Congress relating to buildings and to subdivisions of lots, and the regulations made in accordance therewith.</p> <p>(2) They admit that so long as the adjacent lots remain unimproved, the proposed houses “ may be safe and healthy for the inmates thereof,” but aver that in their judgment, when the adjacent lots are improved, the buildings proposed by relator “ may become unhealthy and the public health and safety thereby become endangered.”</p> <p>And they further say that “ while they admit that the health of the inmates will be substantially provided for, so far as said houses themselves are concerned, and so long as the adjacent land remains unimproved, they say that, in their opinion, when the adjacent property is improved, as they aver it is likely to be, the relator’s houses, in combination with such adjacent improvements, are likely to produce a situation injurious to the public health and safety.”</p> <p>They also admit “ that the exact depth of fifty feet for each lot is not essential under all circumstances to the public^ health and safety, but aver that some limitation of the depth of lots upon which buildings may be erected is essential to such health and safety; and that in the exercise of their best discretion, which they are advised has been committed to them by the law, they determined that fifty feet is the smallest depth that should be permitted for such purposes.”</p> <p>(3) They further allege that if the buildings be permitted, it will be possible for owners of lots to form irregular combinations, facing in different directions, thus requiring undue extension of water and sewer service, etc. A sketch is attached showing a possible combination of buildings of irregular size, limiting the air and light in rear of each house to the space left by the particular owner. It is not claimed, however, that the buildings proposed by the relator will require any undue extension of water and sewer service, etc.</p> <p>(4) The relator moved the grant of the peremptory writ, notwithstanding the answer to the rule, and the same was sustained and final judgment entered. [From that judgment the respondents appealed.— Reporter.]</p>

Hearing on an appeal by one of several defendants from , an interlocutory order of tbe Supreme Court of the District of Columbia, granting a temporary restraining order.

Hearing on an appeal (specially allowed) from an order of the Supreme Court of the District of Columbia requiring the defendant, the District of Columbia, in an action to recover damages for personal injuries, to allow the plaintiff or her attorneys to inspect certain public documents or records in its possession.

<p>Hearing on an appeal (specially allowed) by tbe plaintiff from an order of tbe Supreme Court of tbe District of Columbia, overruling a motion for judgment under tbe seventy-tbird rule of that court, for want of a sufficient affidavit of defense, in an action of assumpsit.</p> <p>■Tbe Court in its opinion stated tbe case as follows:</p> <p>This is an appeal by tbe Consumers’ Brewing Company, plaintiff below, from an order denying a motion for judgment under Rule 73 of tbe 'Supreme Court of tbe District of Columbia.</p> <p>Plaintiff sued tbe appellee, Edwin Tobin, upon a promissory note executed June 19, 1900, for $1,021.44, admitting a credit tbereon of $329.51, and also for tbe sum of $35.05 ffor merchandise sold and delivered; tlie aggregate amounting to $774.02. An affidavit, in substantial compliance with the requirements of Kule 73, was filed with the declaration.</p> <p>Defendant’s plea to the counts of the declaration was the general issue.</p> <p>To prevent judgment under the rule, defendant filed an ■affidavit admitting the execution and delivery of the note, but denying liability thereon. He admits the account for .goods sold, but claims a credit thereon of $15.75, stating the items thereof with particularity, and their former allowance by the plaintiff as just and correct.</p> <p>The ground of defense to the note is thus stated: “ The same was procured by the fraudirlent misrepresentations and imposition of one Edward L. Jordan, at and before the time of the execution thereof, the said Jordan being at said time the president of the plaintiff company; that shortly before the execution of said note the said Jordan informed affiant that the chattels, fixtures, and other personal property then in a certain hotel, known as the “ Exchange and Ballard Hotel,” were for sale, and advised and urged affiant to purchase the same and engage in business in said place; that this affiant was totally unacquainted with the value of the •said stand as a business place, and was also unacquainted with the city of Alexandria, Virginia, where said hotel is located, but relied upon the aforesaid representations of the said Jordan, who informed affiant that said place was a good business stand; that the said Consumers’ Brewing Company had shortly before said time bought in at auction the said goods and chattels for the sum of six hundred ($600) dollars at a sale by one James Catón, as trustee under a chattel mortgage or deed of trust securing the said plaintiff company; that, acting upon the aforesaid advice and representations of the said Jordan,- affiant agreed to purchase said chattels and fixtures and personal property, and took a bill of sale therefor, executing a note payable to Abe King, the secretary and treasurer of the plaintiff company and a nominal party to the transaction, who after-wards indorsed the same over to the plaintiff company; that affiant entered into the possession of the said hotel and commenced the conduct of said business; that said business was unprofitable from the staid, and affiant abandoned the active management thereof and sold the stock in trade therein to one Edwin Dean, who agreed to pay affiant the sum of five and tVv ($5.11) dollars monthly as rent for said goods and chattels, said sum being the amount of interest due monthly on said promissory note; that, as aforesaid, affiant admits, the nonpayment of said note, and affiant further admits that demand for payment ivas made at the bank where same was. made payable; that sale of the chattels for which said note-was executed and on which said note was secured, as set out in the affidavit of the plaintiff, was made, and the sum of three hundred and fifty ($350) dollars was received for said chattels, but the trustees under said chattel trust, who were ihe then president and the then attorney of the said plaintiff company, never rendered this affiant any account; that affiant expended large sums of money in attempting to conduct said business and lost a considerable sum by reason of the venture; that but for the aforesaid representations and suggestions of the said Jordan affiant would not have purchased said goods, chattels, and personal property, and affiant here charges that said chattels were not worth the sum of ten hundred and twenty-one and tj¡^ ($1,0-21.44) dollars, the amount of said note, nor was the said business a profitable ■one, and the said Jordan well knew the same, but, notwithstanding, fraudulently persuaded this affiant to execute the said note; that this affiant is informed and believes, and so charges, that the object of the said Jordan in inducing him to purchase said place was to secure the payment of a debt due said company by the former owner of said chattels and occupant of said hotel; that the said company is not an innocent holder of said note, but, as aforesaid, the said payee, King, is an officer of said company and a nominal party to said transaction, and the said Jordan was at the time of the execution of the said note the president of said company.”</p> <p>The plaintiff moved for judgment notwithstanding the affidavit, on the ground of its insufficiency, and from the order refusing the same, has perfected his appeal under leave obtained therefor.</p>

<p>Hearing oel an appeal by one of several defendants from an order of tbe Supreme Court of tbe District of Columbia, requiring tbe defendants to interplead as to tbeir claims to a fund in controversy and continuing a restraining order previously granted, enjoining tbe defendants from proceeding at law.</p> <p>Tbe Court, in its opinion, stated tbe case as follows;</p> <p>Tbis is an appeal [by one of several defendants] from an order or decree of tbe Supreme Court of tbe District of Columbia in a suit in equity, instituted by tbe appellee, The Metropolitan Club, as complainant, whereby tbe other parties, George E. Tralles, Frederick Grünewald, William D. Edson, Joseph S. McCulloch, John W. Lynn, and Frank Tubbins, were required to interplead between themselves as to their right to certain money held by the complainant and originally contracted to be paid by it to the appellee Grünewald, and were enjoined from proceeding at law against the complainant on account of such money.</p> <p>The Metropolitan Club, a body corporate in the District of Columbia, was, on or about December 31, 1900, indebted to Grünewald, as the surviving partner of W. M. Moreland and Company, in the sum of $285.53, for goods sold and delivered to it by said Grünewald. The latter became financially involved. On December 31, 1900, the appellee John W. Lynn obtained judgment against him before a justice of the peace for $96.64. On the same day, December 31, 1900, the appellees Edson and McCulloch, trading as Edson Brothers, obtained judgment against Grünewald before the same justice of the peace for the sum of $240.79. Subsequently, on January 9, 1901, attachments by way of execution were laid in both of these suits on the money in the hands of the Metropolitan Club. The club, on January 16, 1901, made answer to each writ of attachment. The answer was identical in both cases, and was in the following terms:</p> <p>“ On or about January 1, 1901, the Metropolitan Club became indebted to the defendant (Grünewald) in the sum of $285.53. On or about January 2, 1901, the said club received from the defendant an order authorizing Frank Tub-bins to collect the said indebtedness. On or about January 7, 1901, the said club received from G. E. Tralles a notice that the said defendant had assigned to him the said indebtedness of the said club. The said indebtedness has not been paid; but the said club stands ready to pay the same to the party who is entitled to receive it.”</p> <p>As stated in this answer, the defendant Frank Tubbins had, on January 2, 1901, received from Grünewald an order on the Metropolitan Club to pay to him (Tubbins) the amount of the indebtedness of the club to Grünewald. Apparently, however, this was only to secure to Tubbins the sum of $49 due to him by Grünewald, which, it seems to be conceded by all the parties, should be first paid to him out of the fund in controversy. No one seems to contest his claim or its priority, although the nature of it is not disclosed by the record.</p> <p>As also stated in the answer of the club to the writs of attachment, the appellant Tralles, on January 1, 1901, addressed a notice to the club that Grünewald had assigned the indebtedness to him; and the .club in due time acknowledged receipt of the notice. This assignment appears to have been for the benefit of creditors, but not of all the creditors,— for Lynn, Edson Brothers, and Tubbins were not named in it; and it appears not to have been anywhere recorded, nor did it convey all of Grunewald’s property.</p> <p>Issue was joined by Lynn in his suit against Grünewald on the answer of the club to the writ of attachment. Tralles at this point intervened, and became a party to the suit. The matter came on before the justice of the peace on February 5, 1901; and the justice on the same day rendered judgment of condemnation against the club and in favor of Lynn; and Tralles appealed. The judgment was for $96.64.</p> <p>At the same time, or immediately afterwards, the justice of the peace rendered a judgment of condemnation against the club and in favor of Edson Brothers for as much of the indebtedness of the club to Grünewald as might be left after the satisfaction of the judgment in favor of Lynn and the payment of $49 to Tubbins. Tralles had not intervened in this Edson suit as he had in the Lynn suit. It is alleged by the club that Tralles had due notice that this suit, as well as that of Lynn, would come on for hearing on February 5, 1901, on the writ of attachment and the answer thereto of the plaintiff. This Tralles does not deny: he only denies that he had any notice of a joinder of issue therein; and he admits that there was an agreement between counsel that whatever judgment was entered in the one ease should be entered in the other.</p> <p>On January 31, 1901, Tralles brought suit in the name of Grünewald for Ms use against the Metropolitan Club before another justice of the peace for the whole stun of $285.53, due from the club to Grünewald; upon which judgment was rendered in favor of the club, and Tralles appealed.</p> <p>On May 21, 1901, there was filed in the Supreme Court of the District a stipulation or agreement of the parties in both of the cases so appealed — the attachment proceedings in the Lynn case, wherein Tralles had appealed, and the suit instituted in the name of Grünewald to the use of Tralles- — -wherein the facts heretofore stated and not controverted were set forth; and trial was had in the two cases -upon such agreed statement of facts. Judgment in both was rendered in favor of Tralles, in the first to the effect that the attacMnent proceeding should be quashed, and in the second to the effect that Tralles should recover from the club the sum of $236.53, and that the club should pay $49 to Tubhins. This- judgment was rendered on June 7, 1901.</p> <p>Immediately thereafter the club filed the present bill of interpleader, and on June 26, 1901, an amended bill of interpleader, in which the foregoing facts were stated, and upon which', after answer by Tralles and by Edson and Mc-Culloch insisting upon their rights under their respective judgments against the club, there was, on July 15, 1901, an order or decree rendered requiring the - defendants to inter-plead between themselves and continuing the preliminary injunction that had been granted to the final hearing of the cause, the complainant having paid the money into court.</p> <p>From this order Tralles alone has appealed.</p>

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia under tbe seventy-tbird rule of that court, for want of a sufficient affidavit of defense, in an action upon a promissory note.