Volume 20 — Appeals, District of Columbia

<p>Hearing on an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia, entered upon the verdict of a jury in an action upon a promissory note.</p> <p>statement oe pacts.</p> <p>Tbe action was brought below against tbe appellees, Charles C. Bryan, Zenas C. Bobbins, Henry O. Towles, and against one Gilbert B. Towles. The declaration was filed November 24, 1899, and was based on a promissory note for $1,000, executed by Gilbert B. Towles and the appellee Bryan, as joint and several makers, dated July 26, 1899, payable to the order of the appellee Robbins, and indorsed by him and by the appellee Henry O. Towles, and after him by Gilbert B. Towles.</p> <p>It consisted of three counts, in the first of which the defendants were declared against as makers and indorsers of the note; and in the second of which,they were declared against -as joint makers, with the usual allegations as to the indorsement having been made for the purpose of giving additional credit; the last count being the common counts, with a bill of particulars, consisting of a copy of the note and protest. Gilbert B. Towles did not appear, and a judgment by default was taken against him. The other defendants, the appellees here, pleaded the general issue. On the trial, a verdict was peremptorily directed by the court in favor of the appellees Bryan and Robbins, and the cause was submitted to the jury as to the appellee Henry O. Towles. The jury found in favor of Henry O. Towles. A motion for a new trial having been overruled, judgment was rendered on the verdict in favor of all of the appellees, and from that judgment this appeal was taken.</p> <p>The further material facts will be found stated in the opinion of the court.</p> <p>1. On whom was the burden of proof, is, perhaps, a complex question, which may involve another question, as to whether the court or jury should determine it. The record presents several phases as to this. First, the court inspected the note and said it would not pass muster. Then it heard evidence exonerating the holder, and said it was enough, and allowed it to go to the jury. Then it went back to its original position and took it away from the jury.</p> <p>We contend that the court had no power to pass on this question at all. In 1 Shep. Touchstone, 69, some hundred years ago, the author says, after reciting the various kinds of alterations: “ In these cases the matter was anciently used to be tried by the judges upon the view of the deed; but it is now used to be tried by jurors, whether the erasure or other alterations were before the delivery of the deed or not.” See also Ravisies v. Alston, 5 Ala. 301; Steel v. Spencer, 1 Pet. 552. The question of the date of an alteration, its character, and by whose authority made, is one pre-eminently of fact; and whether the burden be on the one party or the other, it cannot peremptorily be disposed of by the court. Taylor v. Mosely, 6 Car. & Payne, 273; Bishop v. Chambers, 1 Moo. & Mai. 116; Little v. Herndon, 10 Wall. 21. That there is a conflict of authorities on the question as to the burden of proof cannot be gainsaid; but the more numerous and better reasoned are to the effect, either that the presumption is that the alteration was made before execution, or that there is no presumption either way. Farmers’ Loan & Trust Co. v. Olson, 92 Iowa, 771; Hagan v. Merchants Bankers’ Ins. Co., 46 N. W. Pep. 1114; Yakima Nat. Bank v. Knipe, 6 Wash. 348. That in case of apparent alteration of instrument no presumption arises against the paper, but the burden is on the defendant to prove or explain the alleged alteration, is also held by the following additional authorities: Prevost v. Cratz, 6 Wheat.</p> <p>; Hanrick v. Patrick, 119 TJ. S. 172; Wickes v. Caulk, 5 II. & J. 71; Bank v. Sears, 4 Gray, 95; Cooch v. Bryant, 1 Shepl. 386; Crabtree v. Clark, 7 Shepl. 337; Milliken v. Martin, 66 111. 13; Stayner v. Joyce, 120. Ind. 99; Doe v. Catamore, 16 Q. B. 745; Wilson v. Ilayes, 40 Minn. 531; FranMin v. Baker, 48 Ohio St. 296; Newman v. King, 54 Ohio St. 273; Bailey v. Taylor, 11 Conn. 531; Wolferman v. Bell, 6 Wash. 84; Kleeb v. Baird, 40 Pac. Pep. 739; Neil v. Case, 35 Kan. 510; Beaman v. Russell, 20 Yt. 205; S. C., 49 Am. Dec. 175. And in the case of Trowell v. Castle, 1 Keble, 21 (1661), it was held that an interlineation, without anything appearing against it, will be presumed to be at the time of the making of the deed and not after.</p> <p>2. It would seem from the above citations that the burden would be on the makers and not on the holders; but the appellant is not compelled to rely on that; another and less favorable rule may be applied and still he was entitled to go to the jury. It is stated in 2 Am. & Eng. Encyc. of Law (2d ed.), p. 274, as follows: “ The view best supported by reason, and the one to which the authorities seem tending, is that the mere fact of an interlineation or erasure appearing in an instrument does not per se raise any presumption either for or against the validity of the writing; but that the question when, by whom, and with what intent an alteration was made, is one of fact to be submitted to the jury upon the whole evidence;” and then the text goes on to say that while there may be a measure of duty incumbent on the party offering the instrument, he, in general, makes out a prima facie case by proof of the signature “ since that is prima facie evidence that the whole instrument is the act of the party signing;” and that then the other party may introduce proof to rebut this prima facie case, and throw back the burden of accounting for the alteration. Conceding, for argument’s sake, that the text states the rule too broadly when it holds proof of the signature to be sufficient, and that something more was necessary to make out a prima facie case, the appellant proved all that could be required of him under any reasonable known rule. Miller v. Stark, 148 Pa. St. 164; Stough v. Ogden, 68 N. W. Rep. 516 (Neb. 1896). The Supreme Court decisions relied on by the counsel for appellees in the court below, and which will doubtless be offered again here, do not conflict with this rule; one is based upon a proposition stated by that court that it might be that the alteration was made by the holder and, therefore, he must explain it to that extent; and the others are only to the effect that an instruction to the jury as to the signers being released by alteration made after the signatures released them was proper. See upon this general subject, Bank v. Wilson, 5 App. D. C. 12; Peugh v. Mitchell, 3 App. D. C. 125.</p> <p>3. Admitting that there was more necessary than the mere proof of the execution of the note and the fact that it had not been altered since its receipt by the holder,, on the evidence heard, there was enough to go to the jury upon the question as to whether the appellees had signed or indorsed the note in its existing condition or had authorized its issue in that condition.</p> <p>4. There was such a course of dealing between Gilbert Towles and the appellees as made them responsible for any note with their signatures which he issued. It appears, as before stated, that they were jointly interested in the Gettysburg venture; and that Gilbert Towles was, in a certain .sense, their representative; or in other words, that he had, through their consent, the management of financial affairs; that the appellees Bryan and Towles had on several occasions ratified altered notes; and that Bobbins had left blank notes with him, etc. In Rankin v. Blackwell, 2 Johns. 198, testimony was admitted to prove that other notes of the same transaction had been altered. That an unauthorized act must be disavowed immediately is stated in Chitty on Contracts, p. 202, n. 2; 2 Kent Comm. 616; Yianna v. Barclay, 3 Cow. 281; Kloch v. RicMmeyer, 13 Johns. 367; Thomas v. Morris, 8 Cow. 60; Bell v. Cunningham, 3 Pet. 69; Delafield v. State of Illinois, 26 Wend. 192; Veazie v. Williams, 8 How7. 134. Authority to fill blanks implies an authority to alter the written wrords. Bank v. Elwood, 9 Wall. 544. Proof that defendant had paid other forged bills is proof of ratification and meets the defense of forgery. Barber v. Cingell, 3 Esp. 69. Proof that the agent had subscribed the name of the defendant in many instances is proof of authority, without showing that principal knew of it. Neal v. Ewing, 1 Esp. 61; 1 Dan. on Neg. Inst. 290, 359 ; Prescott v. Flinn, 9 Bing. 89; Hammond v. Varian, 54 N. Y. 398; Beal v. Thatcher, 5 Esp. 194; Gibson v. Hunter, 2 H. Blackst. 287.</p> <p>5. The propriety of admitting in evidence the confession of Gilbert B. Towles was objected to and was clearly res ínter alios acta. Conceding that same statement of his could he admitted, it was not competent even to prove by him had he been put on the stand, that he had altered any notes other than the one sued on. Thompson v. Mosely, 5 Car. & P. 571.</p> <p>1. It appears from an inspection of the note in suit that it has been altered in the following respects: First, in the date; second, in the figures in the upper left-hand corner indicating the amount of the note, some of the figures originally there having been erased and a nought introduced after the original “100;” third, the word “ three ” before the word “ months ” has been written over a space in which originally something else appeared; fourth, the word “ we ” in the promise to pay has been written over a space where the word “I” originally appeared; fifth, the words “jointly and severally ” have been inserted; sixth, the amount as written out in the body of the note has been tampei’ed with; seventh, the-signatures have' been tampered with. All these and other apparent changes were pointed out by the court and by witnesses during the'trial of the case below. See Rec., pp. 9, 10, 15, 16, 41. Of course these are material alterations, and would avoid the note as against any party whu had executed same before the alterations were made, and who had not assented thereto. Wood v. Steele, 6 Wall. 80'; 30 Stat. L. 797.</p> <p>2. This being the condition of the note sued upon, and the record disclosing no direct proof as to the time when, person by whom, nor circumstances under which, these alterations were made on this particular note, the burden of proof is upon the party suing upon the note to' explain them. 1 Greenl. on Ev., Sec. 564; Peugh v. Mitchell, 3 App.. D. C. 321; 2 Encyc. of law (2d ed.), 272 et seq.; 2 Jones, on Ev. *578, *579; 1 Smith’s Lead. Cas. 1307-1316; Hills v. Barnes, 11 N. H. 395; Paine v. Edsell, 19 Pa. St-179; Harris v. Bank of Jacksonville, 1 Am. St. Rep. 209;. Hill v. Gooley, 46 Pa. St. 261; Priest v. Whitacre, 78 Va-151; Byles on Bills, 259, and Sharswood’s note; 2 Taylor on Ev., Sec. 1819; Knight v. Clement, 8 Ad. & El. 218. The cases cited in appellant’s brief upon this subject, relating to alterations in deeds and kindred contracts, not accompanied by any circumstances of suspicion, do not at all bear upon the present controversy. That in the case of negotiable instruments the doctrine that the burden of proving the circumstances attending the alteration is upon the plaintiff who is the holder of the paper, is confirmed by the statements in 2 Dan. on Neg. Inst., Secs. 1417-1421», and the cases there cited. The two cases decided by this court and cited in appellant’s brief, viz.: Bank v. Wilson, 5 App. D. C. 12, and Peugh v. Mitchell, 3 App. D. C. 321, do not at all conflict with this rule. See also Nagle’s Estate, 134 Pa. St. 31 (1890) ; United States v. Linn, 1 How. Ill, and Smith v. United States, 2 Wall. 219.</p> <p>2. It is competent for the court to inspect the note, in the first place, to ascertain whether there were alterations upon it, and scrutinize it closely. 1 Greenl. onEv., Sec. 564 (16th ed.) ; 2 Encyc. of Law (2d ed.), 273; Nagle’s Estate, 134 Pa. St. 31; Heffner v. Wenrich, 32 Pa. St. 423; Smith v. United States, 2 Wall. 219.</p> <p>3. The court was clearly right in instructing the jury that such alterations existed, more especially as proof to that effect had been submitted by the plaintiff, and there was no evidence to the contrary, and, indeed, the evidence on both sides was in perfect accord in the direction of showing conclusively that such alterations existed. Tillou v. Insurance Co., 7 Barb. 564; Clark v. Eckstein, 22 Pa. St. 508.</p> <p>4. On several different occasions plaintiff’s counsel endeavored to introduce testimony with reference to notes not connected with the one in suit, in order to show either that such notes had been executed by some of the defendants or that they had acknowledged the same to be just obligations. It is difficult to perceive under what theory of the law such evidence was admissible. As opposed to its admissibility, see Harris v. Bank of Jacksonville, 1 Am. St. Hep. 201, 206, 207; Cohen v. Teller, 93 Pa. St. 127; Whiteford v. Munroe, 17 Md. 149; Walters v. Munroe, 17 Md. 150; Woodruff v. Munroe, 33 Md. 146: Starr v. Yourtee, 17 Md. 341.</p> <p>5. Many of the authorities hold that there can. be no such thing, even in a civil action, as a ratification of a forgery. McHugh v. County of Schuylkill, 67 Pa. St. 391; Shisler v. Vandike, 92 Pa. St. 447; Brook v. Hook, L. B., 6 Exch. 88. If the evidence in the case at bar which was sought to be introduced had been of statements made by these defendants or transactions with them, brought directly to the attention of the plaintiff and upon the strength of which the plaintiff was led to believe, prior to the time when he took the note, that it was good, then it is conceded that the evidence would have been admissible as tending, not to ratify a forgery, but to show that no forgery had ever been committed. Under such circumstances, even if the note had been originally fraudulently altered, there might be said to have been a new promise with the holder, based upon a new consideration, viz., the purchase by the holder of the paper. But the only evidence in this case which was excluded and which was offered under this head, was of entirely independent and collateral transactions, not shown to have been brought to the attention of the plaintiff at all. It surely cannot be contended that any of these defendants would be estopped by reason of anything which was endeavored to be shown by the plaintiff by means of the evidence which was excluded. Had this evidence consisted of actual promises to pay the very paper in controversy the party promising would not be estopped thereby. Mere promises do not constitute an estoppel. Barry v. Kirkland, 40 L. B. A. 471; 36 L. B. A. 539 note, and cases cited; Warren v. Kant, 79 Ky. 1. See also Bennecke v. Connecticut Mut. Life Ins. Co., 105 U. S. 355; Combs v. Scott, 12 Allen, 493; Tucker v. Moreland, 10 Pet. 75, 76; Western Nab. Bank v. Armstrong, 152 U. S. 346; Sullivan v. Klynn, 20 D. O. 401; Brandt on Suretys. & Guar., Sec. 333 et seq.; Bell v. Shields, 19 N. J. L. 93; Cravens v. Gillilan, 63 Mo. 28; Whiteford v. Munroe, 17 Md. 149; Walters v. Munroe, 17 Md. 150; Woodruff v. Munroe, 33 Md. 146; Starry. Yourtee, 17 Md. 341.</p> <p>6. The record shows that the bottles of Collins’ Ink Eradicatin', introduced in evidence, had been found on the desk of the very man who subsequently stated that he had raised the notes, and the custody of those bottles was accounted for during every moment from the time when (hey were taken from Gilbert Towles’ desk down to the time they were put in evidence in the trial. What objection there could be to this testimony is not apparent and is not stated in the recoi'd. The same criticism may be made as to the condition of the record with regard to nearly all of the appellant’s exceptions. Such an assignment of error may be properly disregarded. District of Columbia v. Woodbury, 136 IT. S. 450; Prindle v. Campbell, 18 D. O. 598; Washington Gas Light Co. v. Poore. 3 App. ID. C. 127; Hazleton v. Le Due, 10 App. D. C. 379.</p> <p>7. Witnesses were asked to testify in rebuttal whether they saw blank notes indorsed by Mr. Robbins in Gilbert Towles’ possession. The plaintiff had unquestionably made this a part of his case in chief, and nothing had been asked by the defendants of any of their witnesses with regard to blank notes. The only allusion to blank notes made during the examination of defendants’ witnesses was made by counsel for plaintiff on the cross-examination of the defendant Robbins and of the witness Joseph J. Darlington. It is a cardinal rule of evidence that counsel is not permitted to ask witnesses collateral and immaterial questions on cross-examination for the purpose of subsequently contradicting them in rebuttal. This would tend to multiply the issues enormously. 1 Greenl. on Ev. (14th ed.), Secs. 52, 449; Spencerly v. De Willett, 7 East, 108.</p> <p>8. If it should seem to the court that some of the testimony might be admissible if proffered at the right time, its exclusion, when offered, is not reversible error, even if this court, had it been the nisi prius tribunal, would have admitted it. The order in which the testimony is to be presented is a discretionary matter with the trial court. Lanqdon v. Dvans, 3 Mack. 1; Lansburgh v. Wimsatt, 7 App. D. C. 271.</p> <p>This applies to all of the testimony offered tending to show that Mr. Eobbins had indorsed blank notes and left them with Gilbert B. Towles; also, to the alleged meeting of the directors of the Gettysburg Hotel and Springs Company in June, 1899; to the testimony offered in rebuttal, which, it was claimed, might have shown that the proceeds of the note in suit went to the benefit of the Gettysburg Hotel and Springs Company. It clearly applies to the testimony offered by the witness Smith that he saw Gilbert Towles alter notes in the presence of these defendants, which was distinctly within their proffer while taking their testimony in chief.</p> <p>The appellees contend that the exclusion of any testimony whatever, pertinent or otherwise, which might have been given by the witness Smith could hardly have injured the appellant. Judgment will not be reversed where it appears that the errors complained of could not have injured the appellant. Hughes v. Heyman, 4 App. D. C. 444; Posey v. Hanson, 10 App. D. C. 496.</p> <p>9. Counsel for the appellees do not contend that the confession of Gilbert Towles as to having committed the •forgeries is competent evidence to prove the fact of the forgeries, nor that it would have been admissible at all had not plaintiff’s counsel, against the protest and warning of defendants’ counsel, fairly forced them to put the confession in evidence. The testimony as to the confession of Gilbert Towles was brought out, not by the defendants, but by the plaintiff himself.</p> <p>10. No other instruction than one to return a verdict for Eobbins and Bryan could have been given as to these defendants. Whether or not the burden of proof shifted from beginning to end of the trial, the law is plain that the burden does rest upon the plaintiff to explain the manifest alterations. Of course if any evidence had been introduced tending to show that the alterations had been made prior to the defendants’ names being placed upon the paper, such evidence should have gone to the jury. But with regard to these defendants, there was not a line of evidence from beginning to end of the case which could in any manner tend to show any snch condition of things or in the slightest degree explain the suspicions appearance of the paper. The plaintiff, having failed to carry his burden, has nothing to complain of in the action of the court in that particular. The court is not bound to submit a question to the jury unless there is evidence upon which they may properly find a verdict. Bank of United States v. Corcoran, 2 Pet. 121; Danzig v. Saks, 20 D. O. 177; Howes v. District of Columr bia, 2 App. D. C. 188; Prigg v. Lansburgh, 5 App. D. O. 30.</p> <p>12. It is extremely doubtful whether the case should have been permitted to go to the jury even as to the defendant Henry O. Towles, in view of the decisions above referred to on the subject of ratification. The only way in which the ease as to the defendant Henry O. Towles differed from that as against the other defendants was, that as to him there was testimony to the effect that after the note matured it had been presented to him, and that he said “the note was all right, and that he was making arrangements to pay it.” But this was before Henry O. Towles had any suspicion that the note had been altered. If the doctrine announced by ■the Court of Appeals of Maryland in the two cases above cited of Woodruff v. Munroe, 33 Md. 146, and Starr v. Yourtee, 17 Md. 341, is correct (and it is respectfully submitted that it is) then this evidence should not have been admitted at all, and being inadmissible and incompetent to hold this defendant, there was no more reason for submitting it to the jury as to him than as to the other defendants. In any event, the plaintiff cannot complain of its submission to the jury as against him, and the authorities heretofore cited from the Supreme Court of the United States conclusively show that the prayers granted on his behalf correctly stated the law.</p>

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 for all of several defendants in an. action on a promissory note. The facts are sufficiently stated in the opinion.

Tbe Court iu tbe opinion stated tbe case as follows: Tbis case comes bere on a writ of error, to reverse a judgment on tbe verdict of a jury in tbe police court of tbe District, rendered on an information against tbe appellant Cornelius Sullivan; wbicb charged tbat tbe defendant, being tbe beeper of a licensed bar-room or place where intoxicating liquors are sold, on tbe 23d of June, 1901, at a place therein described, did fail to have bis bar-room or place of business…

<p>Hearing on an appeal by tbe complainant from a decree of tbe Supreme Court of tbe District of Columbia dismissing a petition for divorce.</p> <p>Tbe facts are sufficiently stated in tbe opinion.</p>

<p>Hearing on an appeal by tbe complainant from a decree of the Supreme Court of the District of Columbia dismissing-a petition for divorce on the grounds of cruel treatment and desertion.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia in an action upon a policy of fire insurance, a demurrer to a plea having been overruled and the plaintiff having elected to stand on her demurrer. The Court in the opinion stated the case as follows: This action was begun by appellant Martha I. Hunt, as plaintiff, to recover upon a policy of fire insurance covering certain household furniture and other personal property.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia in an action by an attorney to recover compensation for professional services rendered the defendant’s decedent in the prosecution of a claim against the United States.

<p>Hearing on an appeal by the defendant from a judgment ■of the Supreme Court of the District of Columbia, entered upon a verdict for the plaintiff, directed by the court in an ■action of ejectment.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing oil an appeal by the defendants from a decree of the Supreme Court of the District of Columbia in a suit in equity to determine the right of the complainants to certain funds in the hands of the Treasurer of the United States.

■Hearing on an appeal by tbe complainant from a decree of the Supreme Court of the District of Columbia dismissing a bill‘for divorce on the ground of cruelty. The Court in tlie opinion made the following statement: This is a suit for divorce from the bond of matrimony, or in the alternative, from bed and board, on the ground of cruelty endangering the health of the appellant, Nora B. Wertz, who was the plaintiff in the court below.

Hearing on an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia for tbe defendant in an action of deceit, a demurrer to tbe declaration having been sustained and tbe plaintiff having elected not to amend. The Court in the opinion stated the case as follows: This is an appeal from a judgment sustaining a demurrer to and dismissing a declaration in an action of deceit.

<p>Hearing on an appeal by the complainants and defendants in a suit for partition, from a decree of the Supreme Court of tbe District of Columbia, releasing a purchaser at a sale made by the trustees from compliance with his bid.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This is an appeal from a decree releasing a purchaser at a judicial sale from compliance with his bid, because of the doubtful nature of the title to be conveyed.</p> <p>On October 11, 1901, the Supreme Court of the District, sitting in the special equity term, decreed the sale of the premises herein involved for partition among the devisees of Drank T. McCaffrey, namely, William H. McCaffrey, James B. McCaffrey and Lizzie C. Manogue.</p> <p>Henry D. Woodard, Orrin B. Hallam and Edwin Forrest were appointed trastees to sell at public sale and make title to the purchaser thereat. The proceedings were regular throughout, and at the sale in accordance therewith, the appellee Diehard M. Little made a bid of $9,100 which, being the highest, was accepted, and he deposited with the trustees the sum of $200 pending the completion of the title.</p> <p>Before confirmation, the said Little filed a petition in the cause asking release from his offer of purchase and the rer turn of his deposit. He alleged that the title was defective, and had been so declared by the Columbia Title Company, which had been employed by him to examine and report upon the same.</p> <p>The question of title arose on the construction of the will of Hugh McCaffrey, deceased, which devised the lot of land to the said Francis T, McCaffrey.</p> <p>The trustees answered the petition and insisted'upon performance.</p> <p>They recited, first, the will of said Hugh McCaffrey, the important items of which read as follows:</p> <p>“ I give and bequeath to my daughter Mary A. Quigley house number 301 at southwest comer of 11th and 0 streets southeast, being in lot number 5, in square 970, with the store and dwelling, stock and fixtures, and lot on which it stands, also houses numbers 13 and 15 6th street southeast with lots on which they stand, being parts of lots 19 and 20 in square number 841, also any money in bank to my account at the time of my death, also any money, due to me, also any building association stock. She is to pay funeral expenses and any other legal debts I may owe, also to care for my lot in Mount Olivet cemetery.</p> <p>“I give and bequeath to my son, James B. McCaffrey, house number six hundred and two (602) East Capitol street and lot on which it stands, being in lot number ten (10) in square number eight hundred and sixty-eight (868).</p> <p>“ To my son, William H. McCaffrey, I give and bequeath house 604 East Capitol street, being in lot number ten (10), in square number eight hundred and sixty-eight (868) and lot on which it stands.</p> <p>“ To my daughter, Lizzie Manogue, I give and bequeath house number fourteen hundred and twenty-three (1423) Corcoran street N. W., and lot on which it stands, being lot number fifty-four (54) in square number two hundred and eight (208).</p> <p>“ 2. To my son, Francis T. McCaffrey, I give and bequeath house five hundred and nineteen (519) East Capitol street, and lot on which it stands, being part of lot number twenty (20) in square eight hundred and forty-one (841), also my horse and buggy.</p> <p>“And to my grandson, Frank Foley, I give and bequeath house number one hundred and twenty-one (121) Eleventh street, S. E., being in lot number fourteen (14), square number nine hundred and sixty-eight (968), and lot on which it stands.</p> <p>“ To my grandson Joseph Quigley, I give and bequeath my watch and chain.”</p> <p>This will was made April 30, 1896, and was followed soon thereafter by the death of the testator. It contains no residuary devise or bequest.</p> <p>The next recital is as follows:</p> <p>“ 3. That said Hugh McCaffrey left surviving him the following heirs at law, namely, his children, James B. Mc-Caffrey, William H. McCaffrey, Francis T. McCaffrey, Lizzie Manogue, and Mary A. Quigley, and Frank Foley, a son of a deceased daughter, Catharine Foley; that all of said children are living, except the said Mary A. Quigley and Francis T. McCaffrey; that said grandson, Frank Foley, is still living and is an infant under the age of 21 years;' that said Mary A. Quigley died July 16th, 1897, leaving surviving her a husband, Edward Quigley, who is living, and four children, namely, Catherine L. Quigley, Margaret Quigley, Mary Quigley, and Joseph Quigley, all of whom are living, and the last named two of whom are infants under the age of 21 years; that said Francis T. McCaffrey died October 20, 1898, testate and unmarried; that the last will and testament of said Francis T. McCaffrey, which has been duly admitted to probate and record as a will of real and personal estate, devised his entire estate, after the payment of his debts, to his two brothers, the said William H. Mc-Caffrey and James B. McCaffrey, and to his said sister, the said Lizzie C. Manogue; that the said last-named testator left as his heirs at law and next of kin, besides his brother and sister,'the said William H. McCaffrey, James B. Mc-Caffrey, and Lizzie O. Manogue, the said children of his deceased sister, Mary A. Quigley, namely, Catherine L. Quigley, Margaret Quigley, Mary Quigley, and Joseph Quigley, the two last named of whom are infants under the age of 21 years, and the said Frank Foley, an infant as aforesaid, who is the son of a deceased sister, Catherine Foley.”</p> <p>XJpon the pleadings and exhibits, the latter including the report of the Columbia Title Company, the court granted the prayer of the petitioner and directed the return of the deposit. From this decree the appeal has been prosecuted.</p> <p>That Mrs. Quigley took a fee simple cannot be doubted for a moment. It has been long established that a condition or direction imposed on a devisee enlarges a devise without words of limitation to an estate in fee simple. The ground upon which this rule of construction has been established, is that, unless the devisee were to take a fee, he might in the event be a loser by the devise, since he might die before be had reimbursed himself the amount of the charge; and it applies, therefore, to every case in which a loss is possible. 3 Powell on Devises, by Jarman, p. 379; Lithgur v. Kavenagh, 9 Mass. 161; Farrar v. Ayres, 5 Pick. 404. And it is also established that where from the fact of such condition in one of several devises, it is manifest the testator intended to pass a fee in such devise, the fact that in the others he has-used similar terms (although without attaching conditions), will, in the absence of words of contrary import, establish a like intent in those, other devises, and the beneficiaries will take in fee. The precise point was passed upon in Gook et al. y. Holmes, 11 Mass. 529 (decided in 1814); Butler v. Butler, 2 Mackey, 96, 104.</p>

<p>Hearing on an appeal by tbe defendants from a judgment ■of tbe Supreme Court of tbe District of Columbia entered upon tbe verdict of a jury in an action for false arrest and imprisonment.</p> <p>Tbe Court in tbe opinion stated tbe case as follows:</p> <p>Tbis is a suit for false arrest and imprisonment, in wbicb tbe appellee, George H. Anthony, as plaintiff, has recovered a verdict and judgment in the Supreme Court of tbe District ■of Columbia for tbe sum of $5,340.</p> <p>The appellee was employed by the Adams Express Company as a helper on a wagon for the delivery of its goods in and about an office of tbe company at tbe Sixth Street Station of tbe Baltimore and Potomac Bailroad Company in tbis city. In tbe month of October, 1899, some pearls were ■stolen from this office, where one of tbe appellants, James E. Waters,'was a clerk in charge; and in January of 1900, the appellee was arrested by one of the detective members of tbe Metropolitan police force of the District upon, suspicion of having committed the robbery. He was taken first to the police headquarters and then to one of the police stations, and was detained there for two days under circumstances of considerable indignity. He was then discharged from custody without trial, and without any formal charge lodged against him. There had been no warrant issued for his arrest, apparently no formal complaint made against him by any one; and there was no subsequent prosecution directed against him. It seems to be conceded that he was wholly innocent of complicity in the robbery. Thereupon he instituted this suit to recover damages for the injury done to him, and was successful in prosecuting it to judgment in the court below against all the defendants named in the declaration, except one, as to whom he entered a discontinuance at the end of the trial before the jury.</p> <p>There were five defendants named in the declaration,— James E. Waters, who, as already stated, was a clerk for the Adams Express Company in charge of the office of the company at the Sixth Street Railroad Station, and who was immediately responsible for the safe-keeping of the packages among which was that containing the stolen pearls; Oliver-B. George, the general agent of the Adams Express Company in this District; and Levi C. Weir, Henry Sanford, and Clarence A. Seward, who, doing business as partners, constitute what is known as the Adams Express Company, which is not a body corporate, but only a partnership. Weir, Sanford, and Seward are understood to be, or to have been, nonresidents of the District of Columbia; but appearance, was voluntarily entered for all of them in this suit.</p> <p>On the trial, at the end of the testimony, the suit was discontinued by the plaintiff as to the defendant Oliver.B. George, the local agent of Adams Express Company, “ on the ground,” as stated in the record, “ that there was no evidence-connecting him with the plaintiff’s arrest;” and accordingly a verdict was recorded in his favor. On behalf of each-and all of the other defendants instructions were requested to be given, to the jury, which the court refused, to the effect that there was no sufficient evidence to warrant a verdict against them or any of them. An instruction requested by the plaintiff was given, and another instruction requested on. behalf of the defendants was rejected. It is unnecessary to state either one of them at this time.</p> <p>The case was submitted to the jury, and a verdict was, rendered against each and all the defendants, other than George; whereupon judgment was entered, from which these-defendants have appealed.</p> <p>Some eleven days after the entry of the judgment, a suggestion of the death of Clarence A. Seward, one of the defendants, was made upon the record; and it was agreed that the cause should proceed without him. It was not made to. appear when he had died; but it is understood that the death occurred long before the entry of judgment and long before-the tidal took place.</p> <p>At the request of the appellee, the trial court instructed the jury as follows:</p> <p>“The jury is instructed that it is the duty of the defendants,. The Adams Express Company, as a common carrier of goods safely to carry and deliver to the consignees thereof goods, intrusted to the said company for carriage, and in case of the loss of any such goods before delivery, to use all reasonable diligence and to take all proper steps looking to the recovery of such lost goods, in order that they may be duly delivered to the consignees thereof; and the duties of the said company as thus defined and prescribed are to be met and discharged by the proper officers and agents of the company when the same should or can be met and discharged by-such officers and agents in the due course of their employTnent. Accordingly, if the jury find from the evidence that •at the time of the grievances complained of in the declaration, the defendant Waters was an agent or clerk of the said company having charge of the receipt of goods being transported ■and handled by the said company at a railroad station in the ■city of Washington, and the delivery of such goods to the ■consignees thereof; that a package of goods while in the care •of the said company and received by it for transportation and ■delivery, was lost or stolen from the said railroad station; that the said Waters, with a view to recovering the said package of goods so lost or stolen, directed or authorized a police officer to arrest the plaintiff on the charge of having ■stolen the said package of goods; that the plaintiff was thereupon arrested and imprisoned, and was not guilty of stealing the said package of goods, and was thereafter discharged as being so not guilty, the plaintiff is entitled to recover in this action against the defendant Waters and the said company such damages as the jury may find from the evidence will fairly compensate the plaintiff for the deprivation of his liberty, the indignity of his arrest and the circumstances ■attending the same, the injury to his feelings, and the mental suffering and distress which he may have been caused and suffered by him in the premises to the time of the trial.”</p> <p>As is evident, this instruction carefully avoids the possibility of holding the company liable for any action by Waters having for its object the punishment of the appellee as the supposed person guilty of the larceny of the lost articles, and places the company’s liability upon the ground that what Waters did was in the course of his employment by the company for the purpose of discharging its obligations to the public as a common carrier of goods for hire of the special class of such carriers known as express companies.</p> <p>The duty of an express company and of its servants in respect of recovering stolen packages is well exemplified in the following case, which fully justifies the instruction under consideration. American Express Go. v. Patterson> 73 Ind. 430. And that the conduct of Waters in causing the appellee’s arrest was clearly in the course of his employment is established by the following cases, among others: Allen v. L. & 8. W. E. Go., L. R., 6 Q. B. 65; Edwards v. L. & N. W. E. Go., L. R., 5 C. P. 445; Garter v. Howe Machine Go., 51 Md. 290; Garrison v. Duenclcel, 50 Mo. 104; Evansville, etc., Go. v. McKee, 99 Ind. 519; Chicago, etc., Go. v. Flex-man, 103 111. 546; Lynch v. Metropolitan E. Co., 90 N. Y. 77; Fide v. Eailway Go., 68 Wis. 469; Goff v. Great Northern Ey. Go., 3 El. & El. 672; Eicord v. G. P. EE. Go., 15 Nev. 167; Krulevitz v. Eastern E. Go., 143 Mass. 228; Eichengreen v. L. & N. EE. Go., 96 Tenn. 229; Palmeri v. Manhattan E. Go., 132 N. Y. 261; Staples v. Schmid, 18 R. I. 224. The following case is to the point that express direction to make an arrest is not necessary, bnt that it is a question of fact for the jury whether, under the circumstances attending the arrest, the servant caused it: Burle v. Eowley, 179 Pa. St. 539.</p>

<p>Printing or Record on Appeal.</p> <p>Where a decree was entered by the lower court in strict accordance with a decision of this court in the same case on a former appeal, and an appeal taken from such decree, a motion by . the parties to dispense with the printing of the record and affirm the decree, was granted and the decree affirmed.</p>

Hearing on an appeal by tbe defendants from a judgment of the Supreme Court of tbe District of Columbia entered upon the verdict of tbe jury in an action by an administratrix to recover damages for the alleged negligent killing of her-decedent.

<p>In error to the police court of the District of Columbia.</p> <p>The Court in the opinion stated the case as follows:</p> <p>Two informations in the police court charged Thomas Bradley, as the occupant of a building, with two distinct violations of the act of Congress of February 2, 1899, prohibiting the emission of a certain character of smoke from the chimneys of such buildings. The informations were tried together, and the defendant was convicted under b;oth and sentenced to pay a fine of twenty dollars for each offense.</p> <p>The bill of exceptions reserved on the trial and on which the writ of error was applied for and granted, recites the following offer of evidence on behalf of the defendant which was rejected:</p> <p>Defendant proposed to testify that he was “ the real estate officer of the Washington Loan and Trust Company, a ten-story office building requiring the use of boilers and furnaces and the building from which the said smoke was said to have been emitted, and had been such officer for a period of about three years; that he had charge of the furnaces and operating of said building and was thoroughly acquainted therewith; that he had given the subject of the abatement of smoke examination and was qualified to speak from his experience in reference to said matter; and further the defendant offered to prove by this witness and other witnesses that there was no known device, machine, or method to be used either in connection with hard, soft, or mixed coals or other materials, which would cause combustion without emitting any smoke whatever, and that it is physically impossible to comply with the terms of the act of Congress which declares that the emission of dense or thick black or gray smoke or cinders from any smokestack or chimney used in connection with any stationary engine, steam boiler or furnace of any description within the District of Columbia is a public nuisance.”</p>

<p>Hearing on appeals by several exceptants from an order of the Supreme Court of the District of Columbia, sitting as a District Court, overruling exceptions to and confirming a verdict and award of the jury in condemnation proceedings for the extension and widening of certain streets in the of Washington.</p> <p>The Court in the opinion stated the case as follows:</p> <p>The proceeding for the extension of Sherman avenue was instituted by the Commissioners of the District of Columbia under and by virtue of the act of Congress of March 3, 1899 (30 Stat. 1380), entitled “An Act for the extension of Pennsylvania Avenue, Southeast, and for other purposes.” The act provides for the opening, extending, and widening of several streets and avenues of the city of Washington.</p> <p>By the fifth section of that act, after conferring authority upon the Commissioners of the District to institute proceedings for the condemnation of lands for extending and widening Sherman avenue, it is declared and provided, “ That of the amount found due and awarded for damages for and in respect of the land condemned under this act for the extension and widening of said Sherman avenue, not less than one-half thereof shall be assessed by said jury in said proceedings against those pieces or parcels of ground abutting on both sides of Sherman avenue, and the extension thereof as herein provided, to a distance of 300 feet from the building lines on the east and west sides of Sherman avenue as widened and extended: Provided, that no assessment shall be made against those pieces or parcels of ground out of which land has already been dedicated to the District of Columbia for the purpose of widening .Sherman avenue as herein provided for.”</p> <p>The act provides by its ninth section, that the proceedings for the condemnation of the lands as provided for shall be under and according to the provisions of chapter 11 of the [Revised Statutes of the United States relating to. the District of Columbia, which provides for the condemnation of lands in said District for public highways. The proceeding was taken in accordance with the provisions of chapter 11 of the [Revised Statutes, and a jury of seven were summoned and sworn, and after full examination and consideration of the premises, they returned their verdict into court, whereby damages were awarded to the several owners of land taken for the widening and extending of said avenue, and also assessments for benefits to owners along the line of the improvement were made and returned as part of the verdict. Of a large number of owners whose property was affected, by reason either of the award of damages or the assessment of benefits, only a few excepted to the verdict; and among those who did except were the three appellants in the cases now before us. All the exceptions taken to the verdict returned by the jury were overruled, and the verdict, as well in respect of the damages awarded, as in respect of the assessments for benefits made, was in all.things finally ratified and confirmed. It is from that order that Thomas H. G. Todd, Mary F. Isaminger, and Caroline Mytinger have taken their several appeals to this court.</p>

Hearing on an appeal-by tbe complainants from a decree of the Supreme Court of tbe District of Columbia dismissing a bill in equity to reform a deed of conveyance of real estate on tbe ground of fraud, or to rescind a contract of sale of tbe land embraced therein.

<p>[The further material facts will be found stated in the opinion.— Reporter.]</p>

<p>Hearing on an appeal by the petitioner from an order of the Supreme Court of the District of Columbia, dismissing a petition for a writ of habeas corpus, and remanding the petitioner to the custody of the marshal, and also on a motion by the respondent, the appellee here, to dismiss the appeal.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This is an appeal from the Supreme Court of the District in a habeas corpus case.</p> <p>On May 2, 1901, a corporation of the State of Maryland, designated as “ The Bokel-Gwynn-McKenney Company,” of the city of Baltimore, instituted a suit before a justice of the peace in this District to recover from the appellant, John F. Costello, an indebtedness of $100.53, with interest thereon from February 28, 1900. It does not appear from the.record before us that the company gave any security for costs, as required by section 1002 of the Devised Statutes of the United States relating to the District of Columbia, which provides that “ nonresidents of the District of Columbia shall not commence suit before any justice of the peace without first giving security for costs;” and it seems to be conceded that no such security was in fact given. In answer to the summons served upon him, the appellant, John F. Costello, appeared before the justice, and twice requested and secured a continuance of his case; but failing to appear on the. day finally set for the trial, he had judgment rendered against him for the amount of the plaintiff’s claim.</p> <p>Execution was issued on this judgment, and was returned unsatisfied. Then, on June 19, 1901, the plaintiff caused a certified copy of the judgment to be filed in the Supreme Court of the District, as authorized by law; and on the same day there was a writ of fieri facias issued thereon, which two days afterwards, on June 21, 1901, was returned iznsatisfied.</p> <p>Thereupon, proceeding under sections 794 and 795 of the Devised Statutes of the United States relating to the District of Columbia, which provided for the arrest and detention of debtors fraudulently conveying away their property, the plaintiff company, on the same last mentioned day, June 21, 1901, caused an affidavit of Albert H. Wilson, who describes himself in it as the treasurer and agent of the company, to be filed in the cause in the Supreme Court of the District, in which affidavit it was stated, after the recital of the institution of the suit, the rendition of judgment, and the filing of the latter in the Supreme Court of the District, “ that after the institution of said suit and before the obtaining of said judgment, the defendant, John F. Costello, conveyed away, lessened, and disposed of his propeify, rights, and credits, as the plaintiff believes and affiant avers, with intent thereby to hinder or delay the recovery of its debt; that at the time of the institution of said suit the said John F. Costello was the owner in his own right of an undivided' one-fifth interest in part of lots nineteen and twenty, in square numbered 455 * * *; that said John F. Costello conveyed all of his interest and estate in the said property, which was of great value, to one Jeremiah A. Costello, his brother, who had full knowledge and notice of said suit, the consideration named in the said deed being ten dollars; that no consideration was paid for the said property, but the said conveyance was executed and delivered by the defendant, John F. Costello, for the purpose of hindering or delaying the recovery or payment of the debts of the said John F. Costello, including the debt due to and the judgment held by the plaintiff herein; and that by reason of the matters and things aforesaid the defendant has rendered himself and now is wholly insolvent, and has no property, assets, or means out of which the said judgment can be satisfied.”;.</p> <p>Upon this affidavit and the plaintiff’s order filed in the cause the clerk of the Supreme Court of the District issued a writ of capias ad satisfaciendum, addressed to the marshal and directing him to arrest and hold the defendant, John F. Costello, to satisfy the plaintiff’s judgment. Thereupon Costello sued out the writ of habeas corpus, filing his petition therefor not in the suit in which he was arrested, but as an independent proceeding. The marshal had already arrested Costello under the writ of capias ad satisfaciendum; and to the writ of habeas corpus he made return of the proceedings under which the appellant was held. On June 22, 1901, pending a hearing, Costello was enlarged on bail. No hearing seems to have been had on the writ of habeas corpus until January 22, 1902. At all events, no decision was rendered until this last mentioned day, when the court below made an order dismissing the petition, and remanding Costello to the custody of the marshal.</p> <p>From this order an appeal was forthwith taken to this court, and perfected; and at the same time the appellant was admitted to bail, pending the determination of his appeal in this court.</p> <p>1. The defendant never pleaded to the merits of tbe case; he never waived the positive condition that the plaintiff should not commence his suit without first giving security for costs; he never consented to the noncompliance of the nonresident plaintiff with the condition precedent prescribed by the statute for the benefit and protection of defendants. The entry on the record is as follows: “ Defendant did not appear.” The general doctrine that when a party does not appear he waives nothing is well settled. 2 Eneye. PL & Pr., p. 601. See also Clark v. Van Vracken, 20 Barb. (N. Y.) 278; Holgate v. Broome, 8 Minn. 243; Whitney Co. v. Pettit, 34 Mo. App. 536. Nor does a failure to appear waive any question of jurisdiction. Commissioner Talladega v. Thompson, 18 Ala. 694; Larocque v. Harvey, 57 Hun (N. Y), 366; Tiffany v. Gilbert, 4 Barb. (N. Y.) 320; Williams v. Wheeler, 28 Barb. (N. Y.) 669. Failure of the defendant to appear on the day of continuance is the same as if he fails to appear at the return. Vought v. Soper, 73 Pa. St. 49. As to right to here inquire into the jurisdiction of the magistrate’s court, see Elliott v. The Lessee of Pier sol, 1 Pet. 329; Ex parte Crenshaw, 15 Pet. 119; Lessee v. Stuart, 3 How. 750; Hams v. Hardeman, 14 How. 334; Thompson v. Whitman, 18 Wall. 457; Hynes v. Hoover, 20 How. 65, 80; Fahry v. Motu, 67 Md. 250; Mclntire v. Robinson, 81 Me. 583; Gallatin v. Cunningham, 8 Cow. (N. Y.) 361; Henning v. Corwin, 11 Wend. (N. T.) 647; Anderson v. Binford, 58 Tenn. 310; Jones v. Ritter, 56 Ala. 270; Ex parte Mirande, 73 Cal. 365; Ex parte Kearney, 55 Cal. 212; Miller v. Schneider, 6 Ind. 1.</p> <p>2. By section 1640 of the code it is apparent that the only acts of Congress in force in the District of Columbia since January 1, 1902, when the code went into effect, are general statutes of the United States not locally inapplicable to the District of Columbia, and general statutes of the United States by their terms applicable to the District of Columbia as well as elsewhere. So it is plain that the act of 1844, applying solely to the District of Columbia, under which this arrest was made, was repealed when the code went into effect, for that is plainly the effect of section 1, chapter 1, and section 1636 of the code. It may be argued by the appellee that s'ection 1638 of the code saves his case which was begun before January 1,- 1902, when the code went into effect; but the proviso of that section expressly applies the provisions of the code to pending as well as future suits as regards the method of practice and procedure to be followed, where the substantial rights of par-. ties are not involved. The plaintiff (appellee) in this case, under the rules of practice and procedure then in force; established his “ substantial rights ” and procured a judgment in June, 1901, against the defendant (appellant). After January 1, 1902, when the code went into effect, he invokes the practice and procedure already repealed in a way that can have no bearing on his “ substantial rights,” which he has long before had adjudicated in a justice’s court. He procures a capias ad satisfaciendum, and attempts to collect Ms judgment through a method of practice and procedure (as distinguished from jurisprudence) wMch has been repealed. The act upon which the ca. sa. issued is repealed before the time arrives for the defendant in custody to demand that issues be framed in accordance with such repealed statute. The circuit judge cannot impanel a jury to try such issues because the law providing for such a jury is repealed. The substantial rights of the plaintiff are in no way affected by the change in the method of practice and procedure introduced by the code, for he has not only his remedy by bill in equity, which, if his affidavit is true, is a plain one, but he has two ways pointed out by the code (sections 470' and 1120) in which to follow and get execution on the defendant’s property. The code has supplanted the barbarous means of trying to collect a judgment by putting the debtor in jail, by methods more intelligent, more humane, more far-reaching, and more effective. The defendant being in custody of the law under the provisions of a statute which provides for the framing of issues that cannot be framed, and the impaneling of a jury that cannot be impaneled because the statute is repealed, there is nothing for the marshal to do but release him. The Supreme Court of the United States in South Carolina v. Cailliard, 101 U. S. 438, held that no proceedings can be carried on under a law that has ceased to exist and that “ all such suits must stop where the repeal finds them. If full relief has not been granted before the repeal went into effect it cannot be after.” See also Yeaton v. United States, 5 Cranch, 282; " La Irresistible " 7 Wheat. 551.</p> <p>In the light of the above decisions it is hard to see how the plaintiff (appellee) could maintain the ca. sa. method of collecting his alleged judgment even if the proviso applying the code method of practice and procedure to pending suits had not been inserted. Apart from any question of repeal by the code the act of 1844, providing imprisonment for debt for alleged fraudulent disposal of property, had become obsolete. In the fifty-eight years that have elapsed since its passage, there is not a single reported case of its ever being enforced or of any person being imprisoned under it. There is only one reported case of any attempt to enforce it (4th Mackey, 259), and that failed.</p> <p>3. If the said act was in force the affidavit on which the ca.. sa. was issued does not comply therewith.</p> <p>Statutes which provide for the arrest of defendants in civil actions, being in derogation of personal liberty, are strictly construed. Spice v. Stemruck, 14 Ohio St. 213; Mason v. Hutchins, 20 Me. 78. And plaintiffs must comply strictly with such statutory provisions. Grotan v. Frizzell, 20 111. 291; Tuttle v. Wilson, 24 111. 553. It will be seen that the statute requires the affidavit upon which the ca., sa. is to issue to be made by the plaintiff. In the case of a corporation, affidavit must be made by officer expressly authorized by corporation to make it. Dodge v. N. W. Packet Go., 13 Minn. 458.</p> <p>No authority is shown on the face of the affidavit for Albert H. Wilson to make such an affidavit. Wilson expressly distinguishes between himself and the plaintiff where he says in his affidavit that “ the plaintiff believes and affiant avers.” Where the statute requires the affidavit of the plaintiff, no other affidavit than the plaintiff’s will authorize the attachment. Fx parte Hartley, 5 Ark. 32; Encyc. PL & Pr., Vol. 3, p. 8; Pool v. Webster, 3 Mete. (Ky.) 278; Mantz v. Hendley, 2 Hen. & M. (Va.) 308. The affidavit here states that “ the plaintiff believes.” It is well established that affidavits in attachment, based on information and belief, are insufficient. Meckler v. Caldwell, 1 Cranch C. C. 372; Wright v. Cogswell, 1 McLean (H. S. C. C.), 471. The Supreme Court of the District of Columbia, in the case of Newman v. Hexier, MacA. & Mackey, 95, held that an affidavit in attachment, based upon information and belief, is insufficient. See also 18 Wend. 611.</p> <p>1. It is submitted in support of the motion to dismiss this appeal, that, in view of the following authorities and in the absence of a statute allowing an appeal to this court from an order dismissing a petition for a writ of habeas corpus, the appeal taken herein should be dismissed. Cross v. Burke, 146 TT. S. 82; In re Schneider, 148 TT. S. 157; In re Chapman, 156 TT. S. 211; In re Heath, 144 TT. S. 92; Cross v. United States, 145 TT. S. 571; Ex parte Dries, 3 App. D. C. 165; Petition of Samuel S. Goston, 23 Md. 271; Goston v. Goston, 25 Md. 500; State v. Boyle, 25 Md. 509; Bell v. State, 4 Gill, 304; Goston v. Goston, 23 Md. 271; The Mayor, etc. v. Howard, 80 Md. 244; 9 Encyc. Pl. & Pr. 1070, citing authorities; Ex parte Kaine, 3 Blatchf. (TT. S.) 1; 12 O. O. A. 145; 15 Am. & Eng. Encyc. of Law (2d ed.), 211; Chesapeake & Ohio Ganal Go. y. Union Bank of Georgetown, 8 Pet. 259.</p> <p>2. Upon the dismissal of appellant’s petition in the court below, he gave bond pending the appeal to. this court. He is not, therefore, now restrained of his liberty. 9 Encyc. Pl. & Pr. 1084; Wallace v. Prott, 4 Mack. 259.</p>

Hearing on. appeals by three exceptants from an order of the Supreme Court of the District of Columbia, sitting as a District Court, overruling their exceptions to a verdict or award of a jury of condemnation under the act of Congress of June 6, 1900, providing for the extension of Sixteenth street in the city of Washington and for the widening of Columbia road, and for other purposes.

Hearing on an appeal by tbe defendant, wbo was convicted and sentenced by the Supreme Court of the District of Columbia, upon two indictments for violation of section 5480 of the Devised Statutes of the United States. The facts are sufficiently stated in the opinion. 1. The record shows that the Government elected to try the defendant upon the second and third counts of indictment No. 22,871.

<p>Hearing- or an appeal by tbe defendants from an order of the Supreme Court of tbe District of Columbia granting a preliminary injunction, in a suit in equity to remove a cloud on title to a patent, and for discovery.</p> <p>Tbe Court in tbe opinion stated tbe case as follows :</p> <p>This is an appeal from an interlocutory order of tbe Supreme Court of tbe District of Columbia awarding a preliminary injunction.</p> <p>Tbe appellee, James M. Miller, as complainant, filed his bill in equity in tbe Supreme Court of tbe District against tbe appellants, tbe Columbia National Sand Dredging Company, and Philip Mauro, its president, Henry Wells, its treasurer, and Gustavus A. Bonnet, its secretary, as defendants, and alleged in it that, on January 1, 1889, be bad received letters patent of tbe United States, numbered 395,624, for improvements in sand-dredging and screening apparatus; that, on May 29, 1889, tbe Columbia National Sand Dredging Company bad been organized and incorporated under tbe laws of tbe State of Virginia; that, on June 27, 1889, tbe complainant bad assigned to this company all bis right, title, and interest in and to said letters patent, in consideration of tbe transfer to him of 400 shares of tbe capital stock of said company, 200 shares of which stock were afterwards surrendered by tbe complainant to tbe company; that soon thereafter tbe company became engaged, and yet continues engaged, in the work of dredging sand, gravel, and other materials in tbe Potomac river and selling tbe same for building and construction purposes; that the complainant at different times from June, 1889, to June, 1895, acted as manager, secretary, and treasurer of said company; but that in June, 1895, he severed his connection therewith; and that from and after October 28, 1895, he ceased to be a stockholder in the company, and has now no connection whatever therewith.</p> <p>He alleged further that, on October 13, 1900, he applied for, and on January 8, 1901, he received from the United States other letters patent, being No. 665,835, for improvements in sand-washing apparatus; and that he, one B. E. Doan, and others, then became engaged in the formation of a company or corporation for the purchase of said last mentioned letters patent and operating thereunder in the construction and working of sand-dredging machines equipped with said sand-washing apparatus upon the Potomac river and other bodies of water adjacent to cities, and for the supply of sand and other material for building and other construction purposes in the District of Columbia and elsewhere. He alleged that public notice had been given of the intention to form such corporation; and that a number of persons were ready to enter into the enterprise and to provide the money for the purpose, when, on August 29, 1901, the aforesaid E. E. Doan received from the president of the Columbia National Sand Dredging Company a letter of which the following is a copy:</p> <p>“ Washington, D. C., Aug. 29, 1901.</p> <p>B. E. Doan, Esq.:</p> <p>Dear Sir. My attention has been directed to a circular which you are distributing inviting the public to invest in a proposed sand company. While not concerned for those who may be induced to put their money into your enterprise, I feel called upon to note certain statements appearing in that circular regarding the operations and alleged profits of the Columbia National Sand Dredging Co., for which statements you have assumed responsibility before the public.</p> <p>Possibly you are not aware that these statements are incorrect and misleading, but you must be aware that they are wholly unauthorized by this company. I think it fair to give you this notice, assuming that you would not knowingly circulate misinformation. In view of your use without permission or attempt at verification, of alleged extracts from reports of our manager, I have felt constrained to caution the public against accepting them.</p> <p>Captain Miller is better informed than yourself regarding the history of the Columbia Company and a truthful statement from him of what he knows thereof would not induce any sane person to invest in the proposed new enterprise.</p> <p>There is a legal and ethical point involved growing out of Captain Miller’s past connection with and obligations to the Columbia Company which will, if deemed of sufficient importance, receive attention in due time.</p> <p>Tours very truly,</p> <p>(Signed) Philip Mauro, President Columbia National Sand Dredging Co.”</p> <p>It was alleged further that, about six weeks afterwards, on October 14, 1901, the attorney for the complainant, James M. Miller, and also for Dora P. Miller, addressed a letter to the Columbia National Sand Dredging Company asking an explanation of the foregoing communication. This letter was in the following terms:</p> <p>“ Washington, D. C., October 14, 1901.</p> <p>Columbia National Sand Dredging Company, care of H. Wells, general manager, Washington, D. C.</p> <p>Gentlemen: As the attorney for Dora P. Miller, the holder of five shares of your capital stock, I have to request that you inform me as early as it is practicable what, if any, agreement there is in existence between J ames M. Miller, of this city, and the Columbia National Sand Dredging Company with relation to any patents secured or to be secured by him subsequent to his patent No. 395,624.</p> <p>I attach to this communication a copy of the instrument by which Dora P. Miller authorizes me to act in the matter.</p> <p>As the attorney for J ames M. Miller,-1 have, to request an explanation of the following language used in a communication addressed to R. E. Doan, Esq., under date of Aug. 29, 1901, and signed by Philip Mauro, president Columbia National Sand Dredging Co.:</p> <p>‘ There is a legal and ethical point involved growing out of Captain Miller’s past connection with and obligation to the Columbia Company and which will, if deemed of sufficient importance, receive attention in due time.’</p> <p>The explanation desired is what, if any, agreement there is in existence between James M. Miller and the Columbia National Sand Dredging Company with relation to any patents secured, or to be secured, by him subsequent to his patent No. 395,624. Respectfully,</p> <p>(Signed) Wm. Henry White.”</p> <p>It is alleged that to this letter an answer was received under date of October 21, 1901, which was in the following terms:</p> <p>“ Washington, D. C., Oct. 21, 1901.</p> <p>Wm. Henry White, Esq.,</p> <p>Columbian Building, City.</p> <p>Dear Sir: Tour letter of Oct. 14, to the Columbia National Sand Dredging Co. has been considered by the directors and referred, to me for reply. The directors do not consider that a holder of five shares of the company’s stock has any right to demand information for the benefit of a hostile enterprise. The Columbia Company will choose its own time for presenting its claim in respect to Mr. Miller’s recent patent for sand-dredging machinery, and meanwhile does not deem it expedient to discuss the subject in detail. I may say, however, since you are already aware of it, that Mr. Miller caused the Columbia Company to be organized for the purpose of acquiring all the inventions present and future in this line, as its charter shows, and that this was one of the inducements offered to myself and others to purchase the stock of that company.</p> <p>Tours very truly,</p> <p>(Signed) Philip Mauro.”</p> <p>Further allegation of the bill of complaint is, that the claims of the defendant corporation are purposely stated in vague and indefinite terms, so as to prevent the complainant from showing their invalidity; that they are without foundation in fact; that the complainant was not one of the incorporators of the defendant company, and did not cause it to be organized for the purpose of acquiring any inventions of his subsequent to the patent No. 395,624:; that the complainant did not induce any person to take stock in the defendant corporation by representations that it would have any interest in such subsequent inventions; that the .new corporation now proposed to be formed to operate under the' complainant’s subsequent patent No. 665,835, is to become an active competitor of the defendant company, which now has a monopoly of the business; and that the claims of said defendant company, although unfounded in law or in equity, were intended, and did have the effect, to cast a cloud upon the complainant’s title to his patent No. 665,835, and to prevent his organization of a company to operate thereunder, and to deter others from investing their money therein.</p> <p>And the prayer of the bill of complaint was for a discovery of the claims of the defendant company; that such claims should be decreed to be void; and that the defendants should be enjoined from setting up the same and from all interference with the complainant in the free use and enjoyment of his aforesaid patent No. 665,835.</p> <p>This bill was sworn to by the complainant. The defendants interposed a demurrer to it, on the ground that it is nowhere averred in the bill that the defendants or any of them claim to have any right, title, or interest in letters patent No. 665,835.</p> <p>The demurrer was overruled and time was given to the defendants to answer; and a preliminary injunction was ordered to issue restraining the defendants as prayed in the bill. From this order or decree the defendants have appealed to this court.</p> <p>The rule applicable to cases of this sort is that equity will interpose only where the pretended title, which it is alleged constitutes a cloud, or the proceeding which is apprehended will create a cloud, is apparently valid on its face, and the party in possession will be compelled to resort to extrinsic evidence to show the invalidity of the pretended title and to defend his own. To constitute a cloud some color of title must be shown in the defendant. Accordingly, a petition praying that the defendants create a cloud upon title, and then that that cloud be removed at a subsequent stage of the same suit, is bad on demurrer. Dunklin County v. Clark, 51 Mo. 50; Lehman v. Roberts, 86 N. Y. 232; Scott v. Onderdonk, 14 N. Y. 9; 67 Am. Dee. 106. A bill which recites a pretended title in the respondent and asks relief on the ground of an apprehended injury cannot be maintained. Torrents. Booming Co., 22 Mich. 354; Cox v. Clift, 2 N. Y. 118; Farnham v. Campbell, 34 N. Y. 480; Ormsby v. O ti-man, 85 Fed. Rep'. 492; Ube Coal & Coke Go. v. Schofield, 92 Fed. Rep. 269; Taylor v. Fish, 94 Fed. Rep. 242.</p>

<p>Hearing on an appeal from a decision of the Commissioner of Patents in an interference case.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This is an appeal from the decision of the Commissioner of Patents in an interference case, wherein the subject-matter of controversy is an alleged improvement in type-writing machines, described in the following one issue in the cause:</p> <p>“ In a type-writing machine, the combination with type-operating mechanism and a power-driven carriage, of a tabulating mechanism including a series of denomination-keys and a series of independently-movable stops connected thereto, and also including an independent release-key for the carriage, the construction and arrangement being such that any key may be operated to set its corresponding stop, and such that said release-key may then be operated to enable the carriage to move rapidly to the point determined by the setting of said stop.”</p> <p>The alleged invention consists in the separation of the release-key from the denomination-keys of the tabulating mechanism, a separation which the appellant claims to be a step backward in the art, and which, notwithstanding that he accepted the issue as formulated in the Patent Office, he now seeks to have regarded as wanting in patentable novelty, but which the appellee claims to have the effect of removing certain tendencies in previously-existing mechanism to superinduce mistakes on the part of the operator.</p> <p>The appellant, Thomas Oliver, filed his application for patent on July 17, 1899, and is the senior applicant. In his preliminary statement he alleged that he had conceived the invention, disclosed the same, and made drawings of it, during the period between April 7 and Hay 7, 1899; that he had constructed a full-sized operative machine embodying the invention between May 1 and June 1, 1899; and that since June 1, 1899, large numbers of such machines had been manufactured and sold.</p> <p>The appellee, Jacob Felbel, filed his application for patent on December 18, 1899, which was five months later than the application of his opponent. In his preliminary statement he alleged that he had conceived the invention in issue, made sketches and drawings of it, and began the construction of full-sized working drawings, on or about May 20, 1898; that he showed these drawings, and explained the invention to others about May 25, 1898; that the construction of a full-sized machine, embodying the invention, was immediately commenced and was completed on or about July 20, 1898; and that this machine' was immediately and repeatedly thereafter successfully operated.</p> <p>Testimony was taken which showed that the allegations of the parties were substantially correct, and that Felbel had anticipated his rival. Whereupon all the tribunals of the Patent Office concurred in awarding judgment of priority of invention in favor of Felbel, and Oliver has appealed.</p> <p>It appears from the record that the claim of the issue was the second of 73, afterward enlarged to 83 claims, contained in Felbel’s application; that it was not originally claimed by Oliver; but that it was suggested to the latter by the Patent Office in accordance with its practice, in view of Felbel’s application then pending. The suggestion was accepted by Oliver; and this claim was added by him as an amendment to his original specification, with the distinct understanding that thereby he would be placed in interference with a rival claimant. Notwithstanding this, after the interference had been declared, Oliver repeatedly moved for its dissolution, on the ground that there was no interference in fact between the devices of the two parties, and that the issue., when properly construed, according to his construction of it, applied specifically to Felbel’s device, but did not cover his own. And when his motions for a dissolution of the interference had been overruled, he urged that the claim of the issue was old, and was therefore wanting in patentable novelty.</p> <p>None of these contentions received any favor from the examiner of interferences. But the board of examiners-in-chief, while affirming the decision of the examiner of interferences and awarding judgment of priority to Belbel, were of opinion that the claim was not patentable, and called the attention of the Commissioner to the fact. The Commissioner expressed no opinion as to the patentability of the claim, but stated that this could be considered by the primary examiner when the case should go back to him after the determination of the interference; and he affirmed the award of priority to Belbel.</p>

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, upon the verdict of a jury, in an action by an insurance company, to the… Held: in effect, that the agreement between the company and the agents was such that no formal assignment was necessary. In the case at bar there was a formal assignment, and therefore this question cannot be properly raised. Certainly, however, the appellant is in nowise interested in this matter.

Hearing on an appeal by tie United States marshal, the respondent in habeas corpus proceedings, from an order of tie Supreme Court of tie District of Columbia' discharging tie petitioner from custody. Held: did not provide for such a case as his. It was construed that the statute authorized the arrest and removal of an offender for trial, but not for sentence after trial had and conviction by the verdict of a jury.

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

<p>Same counsel as in next preceding case reported.</p>

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

Hearing on a motion by the Commissioner of Patents to dismiss an appeal from a decision rendered by him for want of jurisdiction in this court to entertain the appeal. The facts are sufficiently stated in the opinion.

<p>I shall prepare a decree dismissing the cross-bill and directing a sale and partition. — ■ Reporter.]</p>

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

<p>Smoke Law; Evidence; Admissions; Statutory Construction; “ Building.”</p> <p>1. In a prosecution under the act of Congress of February 2, 1899, known as the “ smoke law ” where the defendant, the superintendent of an electric lighting company, is charged with a violation of the law in his personal capacity as agent and occupant of certain premises, his admissions to an inspector of the municipality are admissible in evidence to incriminate him personally, although they might not be admissible against the company of which he is the agent.</p> <p>2. In such a prosecution, the refusal of the trial court to permit the defendant, on cross-examination of the engineer of the company, to ask the witness how he got his supply of coal for running the machinery, is not error, although the purpose of the defendant was to show that he had nothing to do with the purchase and supply of the coal for consumption in the furnaces; the defendant as the occupant of the building from the smokestack of which the prohibited smoke was emitted, although acting as the agent of another and although the coal may have been purchased or furnished by another, being liable for a violation of the act.</p> <p>3. It is not error in such a prosecution, for the trial court to exclude . testimony offered by the defendant tending to show that the smoke emitted could not, under any circumstances, have occasioned material injury, inconvenience, or discomfort to the public; following Moses v. United States, 16 App. D. C. 441; nor that the emission of the prohibited smoke could not be prevented without shutting down the furnaces and ceasing the operation of the plant; following Bradley v. District of Columbia, ante, p. 169.</p> <p>4. Under the act of Congress of February 2, 1899, known as the “ smoke law ”, the word “ building ” includes all contiguous structures occupied and used in the prosecution of one general business use or purpose; and where an information charging a violation of that act is against the defendant as the occupant of a building situated at the premises of a certain corporation in a certain square, and the testimony shows that while the defendant, the agent of such corporation, personally occupies as an office one only of several such contiguous buildings, he manages and controls the entire plant, his occupancy will be deemed to extend* within the meaning of the act, to all of such contiguous buildings; and he will be liable for an offense committed ini any of them.</p>

<p>In error to the police court of tbe District of Columbia.</p> <p>Tbe facts are sufficiently stated in tbe opinion.</p>

<p>Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia, upon tbe verdict of a jury finding bim guilty under an indictment for housebreaking.</p> <p>Tbe Court in tbe opinion stated tbe case as follows:</p> <p>Tbe appellant, Robert West, was indicted in the Supreme Court of tbe District of Columbia for housebreaking, with intent to steal, and was convicted and sentenced to tbe penitentiary for five years. On tbe trial testimony was introduced by tbe prosecution of a confession made by bim to tbe police officer who arrested bim; and tbe propriety of tbe admission of this confession in evidence is tbe only question in tbe case. The testimony of tbe officer in regard to it, as stated in tbe record, is in tbe following words:</p> <p>“ I am a member of the Metropolitan police force. On tbe 16th of January, 1902, about 2:30 p. m., I was sent to the drug store at the N. W. corner of 7th and M streets, N. W., and arrested the prisoner. I took him to the station house and into the witness room, and he told me various things, which on investigation I found were not true. I took him in there again about 6 p. m., and he was all right, but would not talk much. I again brought him in about II p. m., and, without making any promises of favor, nor any threats, nor holding out any inducements to him, he made a confession to me.” On examination, the officer testified as follows: “I said — ‘ You have been telling me a pack of lies; now you had better tell the truth.’ ”</p> <p>“ Defendant by his counsel then objected to the admission of the alleged confession, for the reason that a confession made under such circumstances and in reply to such expression was deemed involuntary in law. Objection was overruled and an exception noted.</p> <p>“ The officer then said the defendant confessed as follows: ‘I got in the house with a shoe-buttoner. I intended to steal anything I could get. I make a business of housebreaking. I have been at it for three or four years.’</p> <p>“ Sergeant Sprinkle was also called on the part of the Government and corroborated the testimony of officer Fortenary (the officer who had made the arrest) regarding the circumstances surrounding the making of said confession, and also said: ‘I heard officer Fortenary say to defendant: ‘You had better tell the truth.” It was then about 11:30 p. m. The prisoner was coatless and shoeless at the time.”</p> <p>The record goes on to state as follows: “Defendant’s counsel objected to the above testimony on the same grounds as before stated, but it was admitted over hi's objection and an exception to the ruling noted.</p> <p>“ The defendant then took the stand as a witness on his own behalf and denied wholly the alleged confession as testified to by said officers.</p> <p>“ The corirt in its charge to the jury, among other instructions given, instructed them to consider the relations of the parties, the conversation between the officers and defendant, and the time and place when the alleged confession took place, and it was for them to decide whether or not, under all the circumstances surrounding its making, it was a voluntary confession. If they considered it as involuntary, then they should disregard it; but if they found that it was made voluntarily, then it should be taken into consideration when they rendered their verdict.</p> <p>“ Exception was taken to the above instruction on the ground that it was a matter for the court to decide whether said confession was voluntary or involuntary.”</p> <p>After the verdict a motion for a new trial was filed on the ground of alleged misconduct on the part of one of the jurymen; but the motion was overruled.</p> <p>Appeal from the judgment was thereupon taken to this court. i</p> <p>3. A confession made in answer to the expression, “ You had better tell the truth,” under the circumstances of this case is deemed involuntary. Biscoe v. State, 67 kid. 6; Davis v. United States, 18 App. D. C. 468 ; Bram v. United States, 168 U. S. 532.</p> <p>2. It is for the court and not the jury to decide whether or not a confession is voluntary or involuntary. Greenl. on Ev., Yol. 1, Sec. 219; Am. & Eng. Encyc. of Law (2d ed.), Yol. 6, p. 554; Bram v. United States, 168 II. S. 532.</p> <p>3. Conversations between a juror and an attorney during the trial is sufficient misconduct to warrant the court in granting a new trial. Martin v. Moreloch, 32 111. 485; M. & O. BB. Co. v. Davis, 130 111. 146; Carlyle Canning Co. v. B. & O. S. W. By. Co., 77 111. App. 396; Blaine v. Cambers, 1 Serg. & E. (Pa.) 169; State v. Hascall, 6 N. H. 363; Bunn v. Croul, 10 Johns. (N. Y.) 239; Edney v. Baum, 44 Neb. 294; State v. Springer, 34 Gra. 379; Veneman v. McCurtain, 33 Neb. 643; Love v. State, 65 Tenn. 154; Hutchins v. State, 140 Ind. 79; Ysagere v. State, 58 S. W. Rep. 1005; Darter v. State, 39 Tex. Cr. Rep. 47.</p> <p>1. The granting or refusal of a motion for a new; trial is always addressed to the discretion of the court, and cannot be reviewed by an appellate court. Addington v. United States, 165 U. S. 185 ; Smith v. Mississippi, 162 U. S. 592; Blitz v. United States, 153 U. S. 308, 312; Price v. United States, 14 App. D. C. 391, 401.</p> <p>2. The confession was voluntary, and, therefore, admissible. The circumstances were very different from those in the case cited in appellant’s brief. In Biscoe v. State, 67 Md. 6, the expression used by the officer to the accused was “ that it would be better for him to tell the truth and have no more trouble about it.” In Bram v. United States, 168 U. S. 532, the court laid great stress upon the fact that Bram "was stripped of his clothing by the police officer” (p. 561), and that the officer had said to Bram, “ If you had an accomplice you should say so, and not have the blame of this horrible crime upon your own shoulders ” (p. 564). The statement made by the officer to the appellant here amounts to no more than advice to tell the truth, and does not hold out the slightest hope or suggest the slightest fear to1 the appellant. We think a careful examination of the cases will show that where the confession was excluded it will be found that the statement made to the prisoner was, “ It will be better for you to tell the truth,” or its equivalent, which is very different from the statement here., 1 Greenl. on Ev. (16th ed.) Sec. 220, and note 8; King v. State, 40 Ala. 314, 321; Aarons. State, 37 Ala. 106; Commonwealths. Mitchell, 117 Mass. 431; Commonwealth v. Smith, 119 Mass. 305; State v. Staley, 14 Minn. 111.</p> <p>3. The trial court, however, avoided any possibility of error by leaving it to the jury, under appropriate instructions, to say whether under all the circumstances the confession was voluntary. See Hardy v. United States, 3 App. D. C. 35, 47; Wilson v. United States, 162 U. S. 613, at 624; Davis v. United States, 18 App. D. C. 468, 490'.</p>

<p>Hearing on a motion by tbe appellee to dismiss an appeal from a judgment of the Supreme Court of tbe District of Columbia in a cause tried in that court upon an appeal from a justice of tbe peace.</p> <p>Tbe facts are sufficiently stated in tbe opinion.</p> <p>It may be that tbe provisions of section 226 are irreconcilable with a previous section of tbe code, namely, Sec. 82, but tbe rule of construction is well settled that in such cases tbe “ last words stand, and others which cannot stand with them go to tbe ground.” Packer v. Bailroad Oo., 19 Pa. St. 211; Brown v. Gounty Commissioners, 21 Pa. St. 42; State ex rel. Attorney-General v. Heidorn, 74 Mo. 410; Ex parte Bay & Defoe, 45 Ala. 15; Bacon’s Abr., tit. Statutes D; Endlicb on Interp. of Stat., Secs. 182, 183; District of Columbia v. Hutton, 143 IT. S. 18; United States v. Tyner, 11 Wall. 88.</p>

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia in an action upon a policy of insurance, a demurrer to each of tbe several pleas of tbe defendant to tbe declaration having been sustained, and tbe defendant having elected to stand by its pleas.

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia, upon a motion of tbe plaintiff for judgment under tbe Seventy-tbird Rule of tbat court for want of a sufficient affidavit of defense, in an action on a building contractor’s bond. Tbe facts are sufficiently stated tbe opinion.

<p>Hearing on an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia upon a verdict directed by tbe court in an action to recover damages for personal injuries. v</p> <p>Tbe Oour.t in tbe opinion stated tbe case as follows:</p> <p>Tbis appeal is from tbe .Supreme Court of tbe District of Columbia, taken by tbe plaintiff below, James Barrett, from a judgment entered for tbe defendant, tbe present appellee. Tbe action was one for personal injuries to tbe plaintiff, alleged to bave been caused by tbe negligence of tbe defendant.</p> <p>Tbe defendant company owns and operates an -electric street railway in tbe city of Washington, and at tbe time of tbe accident or occurrence of tbe injury sued for, it maintained and operated a double track of railway on H street, northeast, in tbis -city, on tbe northerly of which tracks tbe cars run in a westerly direction, and on tbe south tracks in the reverse or easterly direction. Tbe question in tbe case is as to tbe sufficiency -of tbe evidence on tbe part of tbe plaintiff to sustain tbe alleged right of recovery.</p> <p>Tbe plaintiff, testifying for himself, says, that be is an engineer, and that on July 9, 1900, between 6 and 7 o’clock, p. m., be was riding borne on bis bicycle, which be bad ridden for about two years, and that be was coming down the Bladensburg ro-ad at a moderate speed, and just before reaching the corner of tbe Bladensburg road and TI street be noticed a car to tbe east of him, and not quite to Fifteenth street when be first saw it' coming -along tbe north- or westbound track of tbe defendant’s- railway. That when be turned tbe corner be beaded bis wheel so as to cross over tbe street Car tracks and go on out Maryland avenue borne. Fie saw tbe west-bound car coming out, and be slowed up to let tbe car go by. Tbe car, as he got close to it, also slowed up, but did not stop. Tbe conductor gave tbe signal and it started off. He bad to go a short distance alongside of tbe car. By tbis time be was going very slow -and merely balancing bis wheel. He rode along west with tbe car a short distance, until it passed far enough for him to go behind and cross tbe other tracks. He started to cross and to go home out Maryland avenue when the east-bound car came along without any warning whatever, and struck his bicycle. He says there were no signals by bell or gong given prior to his being struck by the car. As he crossed the track the east-bound car struck him so quick that he did not have time to save himself; but as the car ran into his bicycle he grabbed the short chain which holds the fender to the car; and that he swung on to it, and it dragged him some distance,— he judged about ten or fifteen feet. His knee was thrown against the running board of the car and his hold was broken, and he fell to the ground between the two car tracks. The car passed on and then stopped. Several persons rushed to his assistance, and helped him up; he thinks he was eight or ten feet behind the car when it stopped. His bicycle was in the fender of the car; the car was a long, yellow, open summer car. He was taken to a hospital, and thence to his home, where he was confined to the house for about three months. In reply to a question as to how fast he was going while he was being dragged along, he said that the car was going ten miles an hour or so, when it struck his wheel, he should judge;— that it was on him before.he could save himself. He says he generally crossed the track here (indicating where Maryland avenue meets H street) ; but as the car was coming he crossed further up to the west; and when asked what he saw as he turned from the Bladensburg road into H street, towards Maryland avenue, coming up H street, going east, and if there was anything there, he replied that he looked, but did not see any car coming.</p> <p>On cross-examination, the plaintiff testified that his eyesight was good. That concerning the plaintiff riding alongside the west-bound car, he says that by the time he reached the west-bound track the west-bound car slowed up and moved very slow for about six or eight feet, and the conductor then signaled to go ahead, and as the car went by him, he started across and the east-bound car struck him.</p> <p>He was then asked whether, before he crossed the eastbound track he looked to see if the car was approaching on that track, and he replied that he did; and when asked where he was when he looked, he replied that it was as he came around Holland’s corner, Bladensburg road, and H street; that he looked up H street, looking west, to see if an eastbound car was coming, and he did not see any. He was asked whether there were any vehicles on the street to obstruct his view, and he replied that there were none, nor anything else, to his knowledge. He says that there were very few vehicles on H street at the time, and that his view was unobstructed when he looked west.</p> <p>He testified that if a signal had been given he would have had time to step off his bicycle; he was going at that rate of speed. He says that he crossed at that point twice a day coming from and going to his work; that he is perfectly familiar with the locality; that the street is straight, and that there is no curve in it towards the west.</p> <p>In the course of further crossrexamination the plaintiff testified as to the actual occurrence of the accident, 'as follows : “ When the fore part of your wheel was on the south track — that is, the south rail of the west-bound track, and before you left that point to cross the track — did you look to see if the car was coming east ?</p> <p>“A. Tes; but it was too late. The car was on me. I passed behind the- other car, and the car came right up on me.</p> <p>“ Q. So that, as I understand it, between the time you left this point, where you had an unobstructed view of the eastbound track, and the time you were struck, you did not look to see if the car was coming?</p> <p>“A. As I was crossing the track I couldn’t look because the other car was going west and headed me off.</p> <p>“ Q. How far was that west-bound car from you ?</p> <p>“A. As the car passed me I came right behind it with my wheel to cross over to Maryland avenue.</p> <p>“ Q. When you passed from behind the west-bound car could you not have seen it in time to have alighted ?</p> <p>“A. No, sir.</p> <p>“ Q. Did you look ?</p> <p>“A. I did, but it was so close on me that I didn’t have time to alight.” He further says that “ the front wheel of his bicycle was just over the rail; his body was not over the nearest east-bound rail when he was struck.”</p> <p>There were several other witnesses examined for the plaintiff, but, in their testimony, they added nothing in the way of material facts, to the facts proved by the plaintiff himself. There were police regulations put in evidence, by which it was shown, that, at the time of the accident, the rate of speed allowed for street cars was fifteen miles per hour in the country, twelve in the city, and six at street crossings; and also requiring cars to stop, when necessary, on the far side of the streets.</p> <p>1. A judge at the close of plaintiff’s case never should direct a verdict for defendant on the ground of contributory negligence of plaintiff where there are, viewed in the most favorable light for the plaintiff, facts from which, with all reasonable inferences, the negligence of the defendant and the freedom from negligence of the plaintiff, may be inferred. It is for the jury to say whether they ought to be inferred. It is only where the evidence of contributory negligence is so clear that the judge would set aside any number of verdicts rendered contrary to his views that he would be justified in not permitting the jury to pass on the negligence of the respective parties. Crue v. Caldwell, 52 N. J. L. 215; Met. B. Co. v. Jackson, L. B., 3 App. Oas. 193; Gardner v. Michigan Cent., 150 IT. S. 349-361.</p> <p>2. Where the evidence shows the exercise of some care on the part of plaintiff and that he was not reckless or indifferent to danger, it is for the jury to say whether under all the circumstances of the case he exercised that amount of care which an ordinarily prudent person would have exercised. The judge instructs on the kind of care required under the law, and the jury decides whether under the facts the requisite amount and degree of care has been exercised. Cases heretofore cited, and Bohler v. Owens, 60 Ga. 188 ; Chaffee v. Boston & L. B. Co., 104 Mass. 108; Railroad Co. v. Golway, 6 App. D. O. 143; Railroad Co. v. Webster, 6 App. D. O. 19Y; Railroad Co. v. Hammett, 13 App. D. C. 3Y0; Railroad Co. v. Stout, 1Y Wall. 65Y.</p> <p>3. Oases axe but few in which a court can say as matter of law that contributory negligence exists. Those are where circumstances are such that the standard of duty is fixed and defined by law and is the same under all the circumstances ; or where the facts are undisputed, and but one reasonable inference can be drawn from them. W. & G. R. Co. v. Grant, 11 App. D. O. 10Y; Railroad Co. v. Snashall, 3 App. D. O. 420.</p> <p>4. In considering the conduct of the plaintiff all the circumstances of the case should be taken into consideration, .and due heed and weight given to the negligence of the defehdant by reason -of which the plaintiff may have been induced to believe it was safe for him to adopt a particular course. The duty of avoiding a collision should not be too exclusively imposed on plaintiff, and the defendant entirely relieved from responsibility by ignoring the acts or omissions on its part. If in the light of all the circumstances there is room for reasonable men to differ as to the existence of contributory negligence the question is for the jury. Railroad Co. v. Hunter, 6 App. D. O. 28Y. The effect of the cars standing or moving ahead of Barrett and shutting off his view and the failure of the east-bound car to sound any warning (p. 11) was for the jury to consider in'passing on the plaintiff’s act in imperiling himself. Railroad Co. v. Webster, 6 App. D. C. 19Y.</p> <p>5. It is negligence to run cars at street crossings at a rate of speed in excess of police regulations. Railroad Co. v. Golway, 6 App. D. C. 143; Gratrot v. Mo. Pac. R. Co., 116 Mo. 450; M. K. & T. v. Reynolds, 26 S. W. Rep. 8Y9.. To fail to keep a vigilant lookout at such crossings and especially when passing another car thereabouts for travelers, and to have the car under control at such crossings. Shearman & Redfield on Neg., vol. 2, pp. 869-8Y2; Consol. Ry. Co. v. Scott, 58 N. J.; Watson v. Minn. St. Ry., 53 Minn. 551. And to omit, when one car is passing another at a street crossing on close parallel tracks, to sound the bell or gong or give warning to persons whose views may be obstructed by the car going from him that there is an oncoming ear on the reverse track. Shearman & Ttedfield on Neg.; Driscoll, Admx. v. Market St. Ry., 97 Oal. 553; Omaha St. Ry. Co. v. Bohneisen, 58 N. W. Rep. 535. Aa electric railway must increase its vigilance proportionately with the increased dangers arising from the increase in its motive power. Cook v. Balto. Trac. Co., 80 Md. 553.</p> <p>6. Street railways, unlike steam railways, have no paramount right to the use of the streets. Railway Co. v. Hunter, 6 App. D. C. 287; Cooke v. Balto. Trac. Co., 80 Md. 553.</p> <p>In Pennsylvania, it is held street railways have a paramount right to the use of the streets, and a verdict directed for defendant might he upheld possibly in that State, but to concede this doctrine does not apply in this jurisdiction and to direct a verdict against plaintiff in a case like Barrett’s would be to say one thing and hold and rule another. Ordinary care in crossing their tracks is all that is required of travelers. The doctrine, stop, look, and listen is not applicable as a hard and fast rule to populous city streets over which electric railways run their cars. It is not negligence per se not to look hoth ways. Travelers have a right to rely to an extent on the usual signals, and those the company should give, for their safety. Shea v. Railway Co., 50 Minn. 397; Hall v. Railway Co., 1 Utah, 250-; Lynam v. Railway Co., 114 Mass. 83; Newark Ry. Co. v. Block, 26 Vroom, 605; Rooks v. Houston R. Co., 10 N. T. App. Div. 88; Railway Co. v. Bushy, 12 App. D. C. 295; Watson v. Minn. St. Ry., 53 Minn. 551; Omaha St. Ry. v. Bohneisen, 40-Neb. 37; Sanchez v. Railway Co., 3 Tex. Civ. App. 89.</p> <p>7. Even as to steam railways it ,is not requisite that travelers at the very moment of going on the tracks shall look to see if a car is -approaching where they have looked shortly before and received reasonable assurance no car was within a distance from which danger might be apprehended. Especially is this so where the car gives no warning of its ■approach. Ghaffee v. Boston L. By. Go., 104 Mass. 108'; Wright v. G. N. & T. By., 94 Ky. 114; Dublin & G. By. Go. v. Slattery, 3 App. Oas. 1155; Henavie v. N,'Y. Gent. By. Go., 9 Am. Neg. Eep. 345.</p> <p>8. The fact that the plaintiff is able to say positively no bell or warning sound was given or he would have heard it, is evidence he was listening (especially where all the testimony of other witnesses corroborates the statement no warning sound whatever was given), and would have heard had one been sounded where he was in position to hear. Henavie v. N. Y. Gent. By. Go., 9' Am. Neg. Eep. 345-349.</p> <p>9. The fact of the accident and that plaintiff was hit by a car on the opposite track after passing behind a car on the near track, does not, of itself, show he was guilty of contributory negligence. Ordinary care was all that was required of him, not such highest care as would make accidents impossible. It is not negligence per se to pass behind a car at a street crossing and proceed to cross the tracks where no warning is given of the onrush of a car on the opposite track. Consol. By. Go. v. Scott, 58 N. J. L. 682, and' cases cited, Dennis v. N. J. C. By. Go., 45 Atl. Eep. 807; Schwarzbaum v. Third Ave. By. Go., 54 N. Y. App. Div. 164 (See note to case 9 Am. Neg. Eep. 145) ;Henavie v. N. Y. Gent. By. Go., 9 Am. Neg. Eep. 345-349; Driscoll, Admx. v. Market St. By., 97 Cal. 553; Gits. By. Go. v. Ford, 9 Am. Neg. Eep. 376; Snell v. Bailway Co., 54 Ohio St. 203-208; Shea v. Bailway Go., 50 Minn. 395 ; Hall v. Bailway Go., 1 Utah, 250; Sanchez v. Bailway Co., 3 Tex. Civ. App. 89.</p> <p>10. Where plaintiff testifies that he did look and saw no ear approaching, the fact that he was hit by a car on the opposite track coming from the direction whence he claimed to have looked, does not show that he did not in fact look when there is evidence that there was a temporary obstruction which might have hidden the approaching car from view, or blanketed it as it were. The question whether plaintiff should have foreseen the possibility of one or more outgoing or standing cars shutting off the view of an oncoming ear was a question for the jury. (In fact as matter of law he was not required to look both ways.) See cases cited above under paragraph number 9 and Tesch v. Mil. Elec. By. Co., 9 Am. Neg. Hep. 389; Cin. St. By. Co. v. Whit-comb, 66 Fed. Hep. 915; Watson v. Minn. St. By., 53 Minn. 551.</p> <p>11. The class of cases holding that notwithstanding plaintiff’s claim he did look, the court will not permit the jury so to find, are cases where it is clear if plaintiff had looked he must have seen. In other words the court will not permit a plaintiff to take his case to the jury by a mere assertion that he looked when it is impossible he could have looked and not seen. That is not this case. Freeman v. Bailway Co., 174 IJ. S. 379; Harten v. Bailway Co., 18 App. D. C. 260.</p> <p>12. To say that plaintiff’s failure to see a car when he did look, is, as an indication of negligence, equivalent to a failure to see it when he did not look, is to ignore the self-evident difference between an affirmative attempt to avoid an injury and a reckless indifference to the happening of one. Coolce v. Consol. Tract. Co., 80 Md. 557; Chaffee v. Boston & L. By. Co., 104 Mass. 108.</p>

<p>Hearing ou a motion by the appellee to dismiss an appeal from the judgment of the Supreme Court of the District of Columbia in a cause appealed to that court from a justice of the peace.</p>

Hearing on an appeal by tbe respondent from an order of the Supreme Court of the- District of Columbia directing a writ of certiorari to issue to bring up for review and correction the records of an- ecclesiastical tribunal.

Hearing on an appeal from an order of the Supreme Court sitting as a District Court of the United States, overruling exceptions to an award of a jury in a proceeding to condemn land and finally ratifying and confirming the same.

<p>Hearing on an appeal by tbe complainant from a decree of tbe Supreme Court of tbe District of Columbia dismissing a petition for divorce on tbe ground of desertion.</p> <p>The Court in the opinion stated the case as follows:</p> <p>Tbis is a suit for divorce from the bond of matrimony instituted in the Supreme Court of the District of Columbia on December 24, A. D. 1901, by the appellant, Pinkie M. Dabney, as petitioner against the appellee, John N. Dabney, as defendant or respondent, on the ground of alleged willful desertion and abandonment of the petitioner by the defendant, continued for the period of two years and upwards before the time of the institution of the suit. It seems to have been one' of a great number of similar suits instituted in the court below in the last month or two of the year 1901, in anticipation of the new code of Law for the District of Columbia, approved March 3, 1901, but which was to go intp effect from and after the first day of January, 1902, according to its own provisions, and by which thereafter adultery was to constitute the only cause for divorce from the bond of matrimony in this District.</p> <p>The appellant’s petition was pending on December 31, 1901. On March 14, 1902, a demurrer was filed to it on behalf of the defendant, here the appellee, on the ground that the court had no jurisdiction of the case, the point being that, by the repeal of the old law and the substitution of the provisions of the code in its place, the court, from and after January 1, 1902, lost jurisdiction to decree a divorce from the bond of matrimony on the ground of desertion and abandonment, notwithstanding certain reservations in the code itself with regard to suits then pending. These reservations are contained in section 1638 of the code, and are in the following terms:</p> <p>“ Sec. 1638. The repeal by the preceding section of any statute, in whole or in part, shall not affect any act done, or any right accruing or accrued, or any suit or proceeding had or commenced in any civil cause before such repeal, but all rights and liabilities under the statutes or parts thereof so repealed shall continue and-may be enforced in the same manner as if such repeal had not been made: Provided, That the provisions of this code relating to procedure or practice, and not affecting the substantial rights of parties, shall apply to pending suits or proceedings, civil or criminal.”</p> <p>It seems to have been conceded in the court below, as it is conceded in this court, that, without the saving clause of section 1638 of the code, the court would have been without authority from and after January 1, 1902, to grant a divorce from the bond of matrimony on the appellant’s petition ; and the question raised was, whether the reservation in regard to “ civil causes ” instituted before the code went into effect- included suits for divorce from the bond of matrimony on the ground of desertion. The court below, upon the demurrer, held that the reservation did not include such a proceeding for divorce as the one under consideration; and accordingly sustained the demurrer and dismissed the petition. The order of dismissal was entered on April 11, 1902; and the petitioner immediately appealed from it to this court.</p> <p>Afterwards, and while this appeal was pending here, the Congress, by an act approved June 30, 1902, amended the code in numerous details, and among other things provided “ that all petitions for divorce pending on the 31st day of December, 1901, may be proceeded with and disposed of under the provisions of the statutes in force on said date.”</p> <p>In this condition of the record and of the legislation of Congress, we are now called upon to consider the appeal.</p> <p>1. Although the divorce law, as it existed prior to January 1, 1902, the time when the code became operative, has been repealed, yet it is submitted that the jurisdiction of the court to grant a decree of absolute divorce upon the ground of desertion in a suit begun before January 1, 1902, is saved by section 1638 of the code, construed in connection •with section 1641 thereof. A saving clause restricts a repealing act and saves rights and pending proceedings from the annihilation which would result from unrestricted repeal. Such statutes are sometimes in the nature of general saving clauses and though, of course, not binding upon a subsequent legislature, yet courts, in construing the repealing act, will adhere to them, unless a contrary intent of the legislature plainly appears. Am. & Eng. Enoyc. of Law (1st ed.), Yol. 23, pp. 437, 438, and cases cited thereunder; Insheep v. Insheep, 5 Iowa, 204; Kemmish v. Ball, 30 Eed. Rep. 759; United States v. Kohnstamm, 5 Blatchf. 222; Beatty v. People, 6 Oolo. 538; Cochran v. Taylor, 13 Ohio St. 382; Dobbins v. First Nat. Banh, 112 111. 553. Such a saving clause is found in section 1638 of the code, and its effect is to preserve from the effect of repeal all such rights and pending proceedings as are included within its terms.</p> <p>2. Numerous authorities hold that a proceeding for divorce is a civil cause or action. A divorce suit has been held to be within the meaning of statutes conferring certain jurisdiction in all civil actions or cases. Filis v. Hatfield, 20 Ind. 101; Herron v. Herron, 16 Ind. 129; Powell v. Powell, 104 Ind. 18; Evans v. Evans, 105 Ind. 204; Child v. Smith, 19 Wis. 558; Hurt v. Hurt, 2 Lea, 176; Clarh v. Clarh, 10 N. H. 380'; Humphrey v. Humphrey, 7 Conn. 116; Delliber v. Delliber, 9 Conn. 233; Head v. Head, 2 Kelly, 191; Prather v. Prather, 26 Kan. 273.</p> <p>3. In this country no courts have had divorce jurisdiction except by statute. In those States, where the distinction between law and equity has not been abolished, divorce has been and is a matter of equity cognizance, as is the case in the District of Columbia. Sections 732 and 736 of the Revised Statutes of the District of Columbia; Secs. 85 and 963 of the code of the District of Columbia.; Bayly v. Bayly, 2 Md. Ch. 326; Stebbins v. Anthony, 5 Colo. 348; Bose v. Bose, 4 Eng. (Ark.) 507; Perry v. Perry, 2 Paige (No Y.), 501; Fulton v. Fulton, 36 Miss. 517; Sharon v. Sharon, 67 Cal. 185; Latham v. Latham, 30 Gratt. 307; Biclvmond v. Bichmond, 10 Yerg. (Tenn.) 342. In construing the term " civil action ” as found in certain acts of Congress, tbe Federal courts have uniformly held that it was used in contradistinction to criminal actions. United States v. Ten Thousand Cigars, 1 Woolw. 123; Bison v. Cribbs, 1 Dill. 181; Creen v. United States, 9 Wall. 655; Livingston v. Story, 9 Pet. 632.</p> <p>4. The learned justice of the court below in his opinion laid great stress upon the fact that a suit for divorce is a special statutory proceeding and sui generis in its nature, and that consequently it could not be considered as a civil cause within the terms of section 1638 of the code. In support of this doctrine, certain special proceedings cited in said opinion, which were held not to be civil causes. An examination of these cases* however, will show that some of the proceedings thus cited are not judicial proceedings at all. They are Cordon v. The State of Kansas, 4 Kan. 421; Williamson v. Lane, 52 Tex. 335; Siueet v. Sherman, 21 Vt. 23 (Contra, Mann v. People, 35 111. 467; Maloney v. People, 38 111. 62; Allison v. People, 45 111. 37; Walker v. State, 6 Blackf. 1) ; Williamsport v. State, 90 Pa. St. 498; Withers v. State, 36 Ala. 252; Garner v. Cordon, 41 Ind. 92 (Contra, Ex parte Tom Tong, 108 IT. S. 556) ; Convers v. Grand Bapids & Ind. BB. Co., 18 Mich. 459 (Contra., Kohl v. United States, 91 N. S. 367; Searl v. School District No. £, 124 U. S. 197; Boom Co. v. Patterson, 98 U. S. 403; Pacific BB. Bemoval Cases, 115 B. S. 1; Colorado Midland By. Co. v. Jones, 29 Fed. Rep. 193; Mineral Bange BB. Co. v. Detroit, etc., Copper Co., 25 Fed. Rep. 515; Warren v. Wisconsin Valley BB. Co., 6 Biss. 425); Powell v. Powell, 104 Ind. 18; Bailroad Co. v. Death, 9 Ind. 558; Turnpike Co. v. Burket, 26 Ind. 52 (Contra, Powell v. Powell, supra). The entire question as to the nature of a suit for divorce has been admirably summed up by Bishop in his work on Marriage and Divorce, Vol. II, Sec. 234.</p> <p>An examination of the two District of Columbia cases of Burdette v. Burdette, 2 Mack. 469, and Bergheimer v. Bergheimer, 17 App. D. C. 381, cited by the court below, will show that they do not conflict with the contention of the appellant.</p> <p>In the opinion of the court below, reliance is placed upon the ease of Lucas v. Lucas, 3 Gray (Mass.), 136, to support the view that divorce is not a civil cause. It was held in that case, it is true, that a divorce proceeding was not a civil action within the meaning of a statute authorizing a bill of review in any civil action. But the decision of the court in that case was based solely upon the ground that the application for a review of a decree of divorce was a novel one in the practice of the State and that it would be against public policy to grant it, owing to the dangers to which it would give rise, as where innocent parties had remarried on the strength of the decree. The case of Clark v. United States, 19 App. D. O. 295, cited in the opinion of the court below, has no application to the question involved in the case at bar. As this was a cmminal case, under no hypothesis could section 1638 of the code be construed as continuing in force the old law concerning the selection and qualification of jurors in criminal cases. It is respectfully submitted that the learned justice of the court below has misapprehended the principles concerning saving clauses as laid down in Endlich on Statutes, See. 201; Black on Interpretation of Laws, 278, 279, and in the cases of Youett v. Simons, L. R, 10th Chan. Div. 518, and Alton Wood’s Case, 1 Coke, 47a, all of which are relied upon in the opinion. Section 1638 of the code is not an instance of a saving clause repugnant to or inconsistent with the body of the statute, within the meaning of these authorities. The very purpose of a saving clause is to exempt pending suits or proceedings from repeal, and in serving this purpose it cannot be regarded as repugnant to the body of the statute. In this respect, section 1638 of the code is the same as all other saving clauses. The fact that Congress repealed the divorce law contained in section 738 of.the Revised Statutes of the District of Columbia did not prevent it from preserving pending divorce suits by a saving clause, and such a saving clause is found in section 1638 of the code, which is not inconsistent with the intention of Congress as declared in section 966 of the code. The code is but a single act of Congress, notwithstanding the fact that its provisions are numerous and extensive. Although many of the old laws, including the former divorce law, are repealed by implication in the various sections of the code wherein new laws are substituted for the old, yet they are also expressly repealed by section 1636, which is a general repealing clause applicable -to the entire code. So, section 1638 is a general saving clause, embracing within its terms all civil causes, whereas section 1641 is a saving clause in respect to criminal cases. These are the only saving clauses in the code, and it was the intention of Congress that they should cover all cases. Therefore, in view of the broad and sweeping provisions of section 1638, Congress deemed it entirely unnecessary to make any special provisions elsewhere in the code as to the preservation of pending divorce suits, the jurisdiction of the court in these cases being plainly and sufficiently saved by the aforesaid section 1638.</p> <p>1. A law after it is repealed is, as regards its operative effect, considered as if it had never existed, except as to matters and transactions passed and closed. Sutherland on Stat. Con., Sec. 162; Am. & Eng. Eneyc. of Law, Vol. 23, pp. 500-502; Bank of Hamilton v. Dudley, 2 Pet. 492; Ex parte McCordle, 7 Wall. 506, at p. 514. If a law conferring jurisdiction is repealed without any reservation as to pending cases, all such cases fall with the law. Railroad Co. v. Grant, 98 IT. S. 398, at p. 402; Gurnee v. Patrick Co., 137 IT. S. 141; .Morey v. Lockhart, 123 IT. S. 56; Grant v. Grant, 12 S. C. 29; Wilson v. Nebraska, 123 IT. S. 286.</p> <p>2. It would seem that the only question presented in this case is a very narrow one, and that, if the words ‘‘ civil cause ” as used in section 1638 of the code include divorce suits, then the decree from which this appeal is taken should be reversed; and, if not, it should be affirmed. It is a well-settled doctrine that saving clauses should be construed strictly. United States v. Dickinson, 15 Pet. 141, see p. 165; Bank v. Peters, 144 U. S. 570. A divorce suit is not a civil cause, but is a proceeding sui generis. 5 Am. & Eng. Encyc. of Law, 751, and cases cited; Burdette v. Burdette, 2 Mack. 469; Bergheimer v. Bergheimer, 17 App. D. C. 381. If, however, the language “ civil cause ” be held to be sufficient to include divorce suits, the decree from which is taken this appeal should not be reversed; for there can be no doubt Congress intended that after this code went into effect no divorce should, be possible except upon the ' charge and proof of adultery. It is a canon of interpretation that the legislative purpose is to be borne in mind and that language susceptible of more than one interpretation or construction is to receive that which will bring it into- harmony with such legislative purpose, rather than that which will tend to defeat it. 23 Am. & Eng. Encyc. of Law, 319; Sedgwick on Statutes, 359. This is illustrated by two decisions of this court touching the construction of section 7 of the act creating it. Section 7 of that act provides that: “Any party aggrieved by any final order, judgment or decree of the Supreme Court of the District of Columbia or any justice thereof may appeal therefrom to the Court of Appeals hereby created,” but every one seemed to acquiesce in construing this provision to exclude the United States, although within the words any party, from appealing in a criminal case, although criminal case is within the words any case, and such construction of this section has had legislative sanction in the code which provides that in certain cases the United States may appeal. Notwithstanding the scope of the language of said section, this court has decided in Bx parte Redmond, 3 App. D. O. 317, that there can be no appeal to this court from the judgment of the Supreme Court of the District of Columbia in cases coming into it on appeal from a justice of the peace, although the words any final judgment must include same.</p> <p>If this court is of the opinion that a divorce suit is within the language “ civil, cause,” as used in section 1683 of the code, appellee contends that it is not within the legislative purpose, and by reasoning like that in Ex parte Redmond, 3 App. D. C. 317, and in the Bergheimer Case, 17 App. D. O. 381, it would seem that this court ought to reach the conclusion that the decree from which this appeal is taken should be affirmed.</p>

<p>Hearing on an -appeal by the petitioner from an order of the Supreme Court of the District of Columbia holding a Probate Court, dismissing a petition for the probate of a paper writing as a last will and testament.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This is an appeal from an order of the Supreme Court of the District of Columbia sitting in special term for Orphans’ Court business, whereby probate was refused to a paper writing of a testamentary nature and costs were awarded against the proponent thereof.</p> <p>The facts of the case, as they appear from the record, are these. One Caroline Holley, formerly a resident of Bloomingburgh, in the State of New York, but since the year 1883 a resident of the District of Columbia and employed here in the Treasury Department of the United States, died in this city on or about the 17 th day of December, A. D. 1901, being then about the age of 70 years. After her death there was found among her papers a document of a testamentary nature, wholly in her own handwriting, and bearing date on August 31, 1901, and which in her own peculiar terms and somewhat incorrect spelling and language is as follows:</p> <p>“ Washington, D. C. Aug. 31" /001</p> <p>“ I am going on a Journey and may, not ever return. And if I do not, this is my last request. The Mortgage on the King House, w-ich is in the possession of Mr H H Brown to'go to the Methodist Church at Bloomingburgh All the rest of My propercZay both real and personal to My adopted Son L. B. Eaton of the life Saving Service, Treasury Department Washington D. O. All I have is my one hard earnings and and I propose to leave it to whome I please.</p> <p>(Signed) Caroline Holley.”</p> <p>It appears that on September 1, A. D. 1901, the said Caroline Holley took a journey to the Buffalo Exposition, which is presumed to be the journey referred to in the paper; that she went through Canada, came back through the Adirondacks, and then returned to Washington, where she resumed her occupation as a clerk in the Treasury Department, and died in this city, as already stated, on December 17, 1901.</p> <p>There was no executor named in the alleged will; and L. B. Eaton, the appellant and the residuary legatee and devisee named therein, thereupon filed the paper in the office of the register of wills for this District, and also filed a petition for its admission to probate as a will merely of personal property, it being apparent that in the absence of attesting witnesses it could not be sustained as a will of real estate. In the appellant’s petition it is averred that the decedent left personal property of the value of about $5,500, and an indefinite interest in some land in this city; that there was no other paper of a testamentary nature found among her effects; and that, during the last two or three months of her life, she often spoke of having made her will, that it was among her papers, and that it showed how she wanted her property to go. It is alleged further that she had repeatedly stated during the last two or three years of her life that it was her intention to leave whatever property she possessed at the time of her death to the petitioner La Fayette B. Eaton and the Methodist Church at Bloomingburgh, in the State of New York, where, it is alleged, her body, after her death, was taken for burial.</p> <p>The next of kin of the deceased appear to. have been some cousins. Ten of them are mentioned in the appellant’s petition to whom citations were issued. Two of these, the appellees here, filed caveats to the probate of the alleged will. Besides the usual grounds of fraud, undue influence, misrepresentation, and irregularity in the execution of the alleged will, and the further ground that Caroline Holley was not at the time of her death or at any time a resident of the District of Columbia, it was objected by the caveators that, as the alleged will was conditioned for its validity upon the happening of .an event which never took place, namely, her failure to return from her then projected journey, the paper never went into effect as a will. There is no opinion of the learned justice who heard the cause in the court below to be found in the record before us; but it seems to be conceded on both sides that his decision was based on this last-mentioned objection, which he sustained. The decree rendered by him recites that the cause was heard “ on the petition and amended petition of La Fayette B. Eaton, the caveat thereto (presumably meaning the caveat to the alleged will), the answer to said amended petition by Harrison H. Brown, one of the next of kin of said Caroline Holley, the stipulation of counsel filed in said cause (which was to the effect that the paper writing in question was in the handwriting of the deceased, and that it had been signed by her on August 31, 19'0T, .and that on the 1st of September, 1901, she had gone on the journey mentioned, and had thereafter returned to Washington and resumed her usual occupation, dying there, as stated, on December 17, 1901) and the other papers (which however do not appear in the record before us) ; and it refused probate and record to the paper writing in question, and dismissed the petition, with costs.”</p> <p>From this decree or decretal order the petitioner la Fayette B. Eaton has appealed.</p> <p>1. The paper writing offered for probate is one which the decedent left as embodying her “last request” and is not one which she intended should be operative only on condition that she did not return from her Buffalo trip. The courts are slow to regard a testator as having hung his will upon a condition unless his intention to do so is plainly and unequivocally manifest. See Finley v. King’s Lessee, 3 Pet. 377; Bradford v. Bradford, 4 Ky. L. Rep. 947, cited in Inkefield v. Inkefield, 82 Ey. 595-; French v. French, 14 W. Va. 459; In re George Thorne, 4 Sw. & Tr. 36; In re. Dobson, L. R., 1 P. & D. 88; Ex parte Lindsay, 2 Bradf. (N. Y.) 204; Skipwith v. Cabell, 19 Gratt. 758; Cody v. Conly, 27 Gratt. 313; Thompson v. Connor, 3 Bradf. (N. Y.) 366; Schouler on Wills (Ed. 1900), Sec. 290, p. 297.</p> <p>2. Costs .should not have been adjudged against the petitioner. Tuohy v. Hanlon, 18 App. D. O. 225.</p> <p>1. The paper writing offered for probate is clearly and plainly absolutely conditional on its face and cannot be contradicted, added to, altered, or explained by parol testimony. Cases and authorities which have held similar documents absolutely conditional are: Parsons v. Lanoe, 1 Ves. Sr. 190, and Ambler, 557; Sinclair v. Hone, 6 Ves: Jr. 607; Goods of Winn, 2 Sw. & Tr. 47; Roberts v. Roberts, 8 Tur. N. S. 220; Goods of John Porter, L. R., 2 P. & D. 22; Goods of Robinson, L. R., 2 P. & D. 171; Lindsay v. Lindsay, L. R., 2 P. & D. 449; Goods of Ward, 4 Hagg. 179 ; Todd’s Will, 2 W. & 8. (Pa.) 145; Morrow’s Appeal, 116 Pa. St. 440; Wagner v. McDonald,, 2 Har. & J. 346; Maxwell v. Maxwell, 2 Mete. (Ky.) 101; Daugherty v. Daugherty, 4 Mete. (Ky.) 25; Massie v. Griffith, 2 Mete. (Ky.) 364; Robnett et al. v. Ashloclc, 49 Mo. 171; Magee v. McNeill, 41 Miss. 17; Bradford y. Bradford, 4 Ky. L. Rep. 947; Lilsefield v. Lilcefield, 82 Ky. 590; French y. French, 14 W. Va. 459; In re George Thome, 4 Sw. & Tr. 36; Dobson’s Gase, L. R., 1 P. & D. 88; Ex parte Lmdsay, 2 Bradf. Sur. (N. T.) 204; Slcipwith y. Cabell, 19 Gratt. 758; Gody v. Oonly, 27 Gratt. 313 ; Thompson v. Gonnor, 3 Bradf. 366; Abert’s Compiled Statutes, p. 562, Sec. 28 (29 Car. II, chap. 3, .Sec. 22) ; Nelleher v. Neman, 60 Md. 440; 1 Jarman (R. & T.’s ed.), 33; Jar-man on Wills, Vol. 1, p. 400; Stevens v. Vancleve, 4 Wash. C. O. (N. .S.) 264; Schouler on Wills (Ed. 1900), Sec. 290, p. 297.</p> <p>2. It is too late for the appellant to raise the question of costs now. This case is different from that of Tuohy v. Hanlon, 18 App. I). C. 225, for the reason that in that case the will was in due form with nothing on its face to show that it was not a will, while here, as a matter of law, this paper is not a will and the appellant is presumed to know it.</p>

Hearing on an appeal (specially allowed) by one of two joint defendants from an order of the Supreme Court of the District of Columbia overruling a demurrer to a declaration in an action to recover damages for personal injuries. The Court in the opinion stated tbe case as follows: This action was brought by tbe appellee, Harrison Crook, to recover for personal in j tines alleged to bave been caused by tbe negligence of Tbe City and Suburban Railway Company of Washington.

The Court in the opinion stated the case as follows: This case is brought into this court by writ of error to the police court of the District of Columbia. The facts are few and not controverted. The defendants were prosecuted for and convicted in the police court of an alleged violation of the liquor license law of the District, and were sentenced on the conviction under the law, whereupon they sued out a writ of error from this court.

<p>In error to the police court of the District of Columbia.</p> <p>The Court in the opinion stated the case as follows:</p> <p>Plaintiff in error, Gerald Dupont, was convicted in the police court upon an information charging the violation of the regulations relating to the removal and disposition of garbage.</p> <p>The District appropriation act of Congress of June 6, 1900, after appropriating a large sum of money for the collection and disposition of garbage, refuse, ashes and so forth, contained certain provisions prescribing the duties of the Commissioners in respect to the subject of the expenditure. (1) They were authorized to enter into a contract for the collection and disposition of garbage, miscellaneous refuse, ashes, night soil and dead animals, under such regulations and specifications as they may establish, for a period not exceeding five years. (2) They were directed to fix collection districts, and provide for collections therein respectively, daily, tri-weeldy and semi-weekly as might be required. (3) All garbage shall be disposed of through a reduction or consumption process, so as to entail no damage or claim against the District, and subject to the sanitary inspection and approval of the Commissioners. (4) All contracts shall expressly provide that no garbage, or other vegetable or animal matter shall be dumped into the Potomac river, or any other waters, or fed to animals or exposed to the elements upon lands. (5) Authorizing temporary contracts pending the erection of the necessary plant for collection and reduction or consumption. (6) Authorizing the making of all regulations necessary for the collection and disposal of the specified refuse, and the enactment of such penalties as may in the judgment of the Commissioners be necessary to secure their enforcement.</p> <p>On October 11, 1900, the Commissioners entered into a contract for the execution of the law with the Washington Fertilizer Company for five years from December 1, 1900, without charge to householders for the service. The contractor established the necessary plant for the disposition of the collected garbage, the location and construction of which were approved by the Commissioners.</p> <p>Elaborate regulations were adopted and promulgated by the Commissioners, the parts of which relevant to the issues in this case are as follows:</p> <p>“ Section 1. The word ‘ garbage,’ wherever it occurs in these regulations, shall be held to mean the refuse of animal and vegetable foodstuffs; and the words / dead animal,’ wherever they occur in these regulations, shall be held to mean any dead animal not killed for food. Section 2. Occupants of dwelling-houses, proprietors of hoarding-houses, commission warehouses, hotels, restaurants and other places where garbage is accumulated, and owners or occupants of apartment or tenement houses, shall provide for the use of such premises a sufficient number of receptacles to contain all garbage which may accumulate on said premises during the usual interval between the collections of garbage therefrom, and shall keep such receptacles at all times in good repair. Each such receptacle shall be made of metal, water-tight, provided with a tight cover with a handle, and shall be so constructed that the contents can be removed therefrom easily and without delay. No person, without a permit from the superintendent of street cleaning, shall use for the reception of garbage any receptacle having a capacity of less than three nor more than ten gallons, nor more than one receptacle containing less than ten gallons. Section 3. Occupants of any dwelling-house, apartment or tenement house, and each proprietor of any boarding-house, commission warehouse, hotel, restaurant, and other place where garbage is accumulated, shall cause 'all garbage from his or her premises to be put into the receptacle provided for that purpose. Each person aforesaid shall cause such receptacle to be kept covered at all times, and to be placed and to remain, between the hours of Y o’clock, a. m., and 6 o’clock, p. m., of each day on which the collection is made from his or her premises, in such position as to be easily accessible to the garbage collector, or as may be designated by the superintendent of street cleaning. No person shall place or cause to be placed in any garbage receptacle any substance other than garbage. * * *</p> <p>“ Section 8. It shall be unlawful for any person to deposit, throw or place any garbage, dead animal, fish or refuse, animal or vegetable matter in any avenue, alley, street, or other public place in the District of Columbia, or into the Potomac river or any other waters in the said District; nor shall any person place such materials upon any private property, whether owned by such person or not, unless the same shall be inclosed in proper vessels, as provided in section 2; nor shall any person feed any such materials in the District of Columbia to any cows or other animals used for food, or transport, or cause or permit such materials to be transported beyond the said District for the purpose of feeding the same to animals. Section 9. It is hereby made the duty of the contractor with the District of Columbia for the collection and removal of garbage and dead animals to collect and remove, in accordance with the regulations and contract of the said District, all garbage, dead animals, fish and refuse animals and vegetable matter found within the District, to some place to be designated or approved by the Commissioners of the District, and to dispose of the same through a reduction or consumption process, subject to the sanitary inspection and approval of said Commissioners; and each cart or other vehicle used for the purpose of removing garbage shall have the word ‘ garbage/ and the number of the wagon in large white letters on a black ground, plainly painted or attached to each side of the wagon bed, which shall be of metal, water-tight, and provided with tight-fitting covers, and be approved by the superintendent of street cleaning. All dead animals shall be removed to the place of disposal in covered wagons or other vehicles or conveyances as nearly air-tight as possible, to be approved by the superintendent of street cleaning. And it shall be unlawful for any person to use for the removal of garbage or dead animals any cart, wagon, vehicle or other conveyance not so approved. No other person or party except the District contractor, his, their, or its agents, shall carry, convey or transport through the streets, alleys, or public places of the said District, any garbage, dead animals, fish, or refuse animals or vegetable matter; and it shall he unlawful for any person to interfere in any manner with the collection and disposal of such materials or dead animals by the District contractor, his, their, or its agents or employees. Provided, that the owner of any dead animal, if the same shall have died upon private premises, may remove the same, or cause it to be removed within four hours after it shall have died, otherwise such removal shall he within one hour thereafter, to a place or places to be approved by the Commissioners of said District, whence it shall be taken and disposed of by the reduction process, subject to the sanitary inspection of the said Commissioners. All garbage, dead animals, night soil, miscellaneous refuse and ashes must be within the digesting tanks, or within the furnace, or otherwise in process of actual disposal, not later than 6 o’clock, a. m., on the day following their receipt by the contractor or other person for such disposal.”</p> <p>It is further provided that all garbage and other refuse shall be completely reduced, etc., within forty-eight hours.</p> <p>The agreed statement of facts shows that the plaintiff in error, Gerald Dupont, had purchased of O. G. Staples, the proprietor of the Diggs and National Hotels, all garbage accumulating at said hotels for one year, beginning January 1,1902, contracting to pay therefor the sum of $300. That on May 3, 1902, he collected, several cans of said garbage from said hotels and was hauling the same through the streets of Washington, intending to take it to his farm in Maryland. That his intention was to feed it in part to hogs and to use it in part as a fertilizer for his land. That it was not intended to be disposed of by the reduction or consumption process as indicated in the police regulations of the Commissioners. That he had no permit for hauling the said garbage, but that the same was contained in water-tight metal cans of more than five gallons capacity, properly covered, and of the kind and character prescribed by the regulations to be kept by householders for the reception of garbage. That the garbage which he was removing when arrested was worth to him the sum of five dollars.</p> <p>Based on the foregoing facts, the defendant on the trial requested several instructions to the jury, in substance, that the regulations were arbitrary .and unreasonable, and deprived him of his property without just compensation or due process of law. These were refused, and the defendant was convicted and sentenced to pay a fine of thirty dollars.</p> <p>1. The effect of the garbage regulation under consideration is to deprive owners of garbage of their property without compensation. Cooley Const. Lim. (5th ed.), 248; Rendering Co. v. Behr77 Mo. 91; Underwood v. Green, 42 N. T. 140; Campbell v. District of Columbia, 19 App. D. C. 131; Kussel v. City of Erie, 8 Pa. Dist. 105 ; State v. Mott, 61 Md. 297.</p> <p>2. The police regulation in question has no substantial relation to the subject of public health. Mugler v. Kansas, 123 TJ. S. 623 ; Lawton v. Steele, 152 IT. S. 133; Moses v. United States, 16 App. D. O. 428.</p> <p>3. Municipal ordinances placing restrictions on the conduct of business or the use of property must, in order to be valid, specify the rules and conditions to be observed in such conduct or business or the use of such property, and must not admit of the exercise of any arbitrary discrimination by the municipal authorities as between citizens who will comply. Yick Wo v. Hopkins, 118 TJ. S. 356; Barthel v. City of New Orleans, 24 Fed. Rep. 563.</p> <p>4. The clause in the District appropriation bill authorizing the Commissioners to provide for the removal of garbage contemplates only s-uch garbage as is abandoned by the owners. In re Lowe, 54 Kan. 757; Weil v. Bicord, 24 N. J. Eq. 169.</p> <p>The act of June 6, 1900, is valid as a proper exercise of the police power. Moses v. United States, 16 App. D. O. 428; Campbell v. District of Columbia, 19 App. D. C. 131; Slaughter-House Cases, 16 Wall. 36; Deems v. The City of Baltimore, 80 Md. 173; Board of Police Commissioners v. Wagner (Md.), 48 Atl. Rep. 455; Mugler v. Kansas, 123 TJ. S. 623; Walker v. Jameson, 144 Ind. 691; Train v. Boston Disinfecting Co., 144 Mass. 524; Tiedman on Mun. Corp., par. 120; Vandine, Petitioner, 6 Pick. 187; Lawton v. Steele, 152 TJ. S. 133; Smiley v. McDonald (Neb.), 27 L. R. A. 540, and note; Louisville v. Wible, 84 Ky. 290; State of Connecticut v. Orr, 68 Conn. 101; 34 L. R. A. 279; City of Grand Bapids v. De Vries, 123 Mich. 570; Gibbons v. Ogden, 9 Wheat. 1; Chicago, Burlington, etc., BB. Co. v. Chicago, 166 TJ. S. 255; New Orleans Gas Co. v. Louisiana Light Co., 115 TJ. S. 650; Leisy v. Hardin, 135 TJ. S. 128; Ouray v. Carson, 59 Pac. Rep.; Alpers v. San Francisco, 32 Fed. Rep.; State v. Payssan, 47 La. Ann. 1030; Ex parte Casinello, 62 Cal. 538'; Green v. Savannah, 6 Ga. 1; Cronin v. The People, 82 N. T. 318; Taunton v. Taylor, 116 Mass. 254; Ashbrook v. Com., 1 Bush, 139; Fertilizer Co. v. Hyde Park, 97 TJ. S. 659.</p>

<p>Motion by tbe defendant in error, tbe District of Columbia, to dismiss a writ of error to tbe police court of tbe District of Columbia.</p> <p>Tbe facts are sufficiently stated in tbe opinion.</p> <p>Mr. George B. Hamilton, Mr. Michael J. Golbert, and Mr. John J. Hamilton, opposed, cited Underwood v. Hos-sack, 40 111. 98; 9 Col. 358; People v. Judge, 20 Micb. 220; Jones v. Wilson, 103 N. C. 13; Harritee et al. v. Pofflein, 73 Md. 322 ; 38 Md. 468; 3 Encyc. of PL & Pr. 474, 484; 2 Encyc. of Pl. & Pr. 345; Bield v. Gellerson, 80 Me. 270; Wetmore y. Wetmore, 51 N. T. St. Pep. 275.</p>

Hearing on an .appeal by the defendant in an indictment for murder who was found guilty by the jury without capital punishment and sentenced by the Supreme Court of the District of Columbia to the penitentiary for life. The facts are sufficiently stated in the opinion. Mr. Ashley M. Gould, United States Attorney for the District of Columbia, and Mr. Jesse G. Adkins, Assistant, for the United States.

Hearing on an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia on tbe verdict of a jury, in an action to recover damages for personal injuries. Tbe Court in tbe opinion stated tbe case as follows: Tbis action was begun by John D. Boering and bis wife, Mearlin G. Boering, to recover damages for injuries sustained by tbe latter whilst riding as a passenger upon tbe railway owned and operated by tbe Chesapeake Beach Railway Company.

<p>Hearing on an appeal by tbe defendant from a decree of tbe .Supreme Court of the District of Columbia in a suit in equity against a building association to enjoin a sale under a mortgage and to compel a release of such mortgage.</p> <p>The Court in the opinion stated the case as follows:</p> <p>On September 1, 1898, the appellees, Bertha L. Fiske and Joseph H. Fiske, her husband, .residents of this city, although in a certain paper in this cause describing themselves as residents of the village of Sligo, in Montgomery county, in the State of Maryland, in which Bertha L. Fiske was the owner, or had contracted to become the purchaser, of a tract of land, evidently as preliminary to the procurement of a loan of money on the said tract, although the transaction is sought in some measure to be disguised, applied for membership in the appellant company, The Washington National Building and Loan Association, a body corporate, which, notwithstanding its name, had been incorporated under the laws of the State of Virginia, but which had its main office and transacted its business in this city. The application was allowed. The loan sought to be secured was the sum of $3,000. Thirty shares of the stock of the association, intended to be of the par value of $100 a share at maturity, or $3,000 in all, but upon which nothing was paid at the time, were allotted to them; and forthwith they reassigned the same to the association, nominally as security for the proposed loan, and also as security for the same executed and delivered to the association a mortgage upon the land in Montgomery county, Maryland, which was duly recorded in said county.</p> <p>The condition of this mortgage was substantially the usual one in such cases,— that the mortgage should be void if the mortgagors paid to the association in each and every month the sum of thirty cents on each share of stock as dues, the sum of fifty cents on each share as interest, and the sum of fifty cents on each share as premium, the monthly premium, however, being diminishable at the rate of ten per cent each successive year; and if the mortgagor should pay all taxes and assessments on the mortgaged property; should obey all the regulations and by-laws of the association; should pay fines and penalties that should be assessed against them; and should keep the buildings insured; otherwise that the mortgage should remain in full force and effect. It was covenanted in it that payments were to be made as provided until such time as the shares of stock should become fully matured, that is, become of the par value of $100 a share, but not for a longer period than 144 months from the date of the stock; and that, in the event that the stock should fail to mature on or before the expiration of such 144 months, then interest at the rate of six per cent on the original amount of the loan should continue to be paid monthly until the stock should mature, when all payments should cease and the mortgage should be canceled. Provision for sale of the property was made in the event of any default on the part of the mortgagors.</p> <p>The by-laws of the association provided for the withdrawal or cancellation of stock upon due notice and the payment of the loan, or advance, as it is there called. Article VII, Sec. 6, of the by-laws, which contains the schedule of allowances to be made for such stock on withdrawal, provides what may be called a sliding scale of values. The result of it is — for it is not necessary to state it here in detail — that, upon withdrawal of stock, which means withdrawal from the association and settlement of accounts with it, the so-called member is to be charged with the amount of the loan to him, and he is to be credited with the value of his stock according to the schedule.</p> <p>On February 26, 1901, the appellees made their last payment to the association under their contract; and there seems to have been no default up to that time. At or about the same date they gave the required notice of sixty days of their intention to withdraw.; and on or about May 5, 1901, tendered to the secretary of the association the sum of $2,177.50, which they assumed to be the amount then due from them to the association. This the secretary declined to receive and claimed that the sum due was $2,928.50, which was $151 more than the appellees admitted. This, therefore, is the amount in controversy.</p> <p>Thereupon, there having been apparently some expression of purpose on the part of the association to foreclose the mortgage, the appellees instituted the present proceedings by filing their bill in equity in the Supreme Court of the Distinct for an accounting and to restrain the threatened sale, and for a release of the mortgage upon payment by the complainants of the amount to be found due. After answer by the association, the court, apparently with the consent of parties, referred the cause to the auditor to take testimony and state the account between the parties. The order of reference was entered on November 11, 1901; and the auditor seems to have taken up the case quite promptly, for all the hearings appear to have been had in the months of November and December of 1901, although his report was not filed until January 13, 1902. In his report he found the amount due from the appellees to the association to be, on May 5, 1901, the date of the tender made by the appellees, as above stated, the sum of $2,161.73, which was $12.77 less than the amount of the tender.</p> <p>Thereupon exceptions were filed to the report by the association ; and at the same time a notice was made to refer the cause back to tbe auditor, based ou tbe ground tbat tbe new code of law, wbicb bad come into effect on and after January 1, 1902, bad made important changes in the law relating to building associations, inasmuch as it legalized their arrangements for tbe taking of premiums, previously regarded as constituting usury.</p> <p>Tbe court refused tbe motion to refer tbe cause back to tbe auditor, overruled tbe exceptions, confirmed the report, and entered a decree substantially in accord with tbe prayer of tbe bill of complaint, conditioned upon tbe payment by tbe complainants to tbe defendant association within twenty days thereafter of tbe sum found due by tbe auditor. From this decree tbe association has appealed to this court.</p>

<p>Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia upon a verdict of a jury in an action to recover damages for personal injuries.</p> <p>The facts are sufficiently set forth in the opinion.</p>

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia, entered upon a verdict for tbe plaintiff, directed by tbe court in an. action upon a certificate of membership in a mutual insurance company.

Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia dismissing a petition for divorce. There was no appearance for the appellee.

<p>Hearing on a motion by the appellees to dismiss an appeal.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia- upon the verdict of a jury in an action to recover damages for personal injuries.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>1. The following authorities show that it was error to submit this case to the jury: Pleasants v. Pant, 22 Wall. 116; The Commissioners, etc. v. Clark, 94 TJ. S. 278; Bandall v. The B. & O. BB. Co., 109 IT. S. 478; B. & O. BB. Co. v. St., use, etc., 71 Md. 590'; Duvall v. B. & O. BB. Co., 73 Md. 513; P. W. & B. BB. Co. v. Burkhardt, 83 Md. 516; Patton v. Texas & Pac. BB. Co., 179 IT. S. 658.</p> <p>2. Where there is some evidence on behalf of the plaintiff which might sustain a verdict if it was uncontradicted, yet where the rebuttal is overwhelming, so that it may be said that taking all the evidence together the vei’dict would be unsupported by the evidence, it is the duty of the court to direct a verdict. Met. By. Co. v. ■ Moore, 121 H. S. 569; Powers v. N. Y. C. & II. BB. Co., 60 Hun, 19, affirmed in 128 N. T. 659, and authorities therein cited.</p>

Hearing on an appeal by the defendants from a judgment of the Supreme Court of the District of Columbia upon the verdict of a jury in an action in ejectment. The facts are sufficiently stated in the opinion.

Hearing on an appeal by a defendant indicted, tried, and ■convicted of tbe crime of rape in tbe Supreme Court of the District of Columbia. The facts are sufficiently stated in the opinion.

<p>In error to the police court of the District of Columbia..</p> <p>The Court in the opinion stated the case as follows:</p> <p>This cause comes here from the police court of the District upon writ of error, and involves the validity of one of the police regulations of the District.</p> <p>Section 3 of the act of Congress of January, 26, 1887, entitled “An act to authorize the Commissioners of the District of Columbia to make police regulations for the government of said District ” (24 Stat. 368), provides that the Commissioners of the District shall have power to make-regulations “ to locate the places where licensed vendors on streets and public places shall stand, and change them as often as the public interests require, and to make all the necessary regulations governing their conduct upon the streets in relation to such business.” And section 10 of the same act provides that the commissioners shall also have power “ to regulate the movements of vehicles on the public streets and avenues for the preservation of order and protection of life and limb.”</p> <p>Under this authority so conferred upon them the Commissioners in 1899 promulgated the following regulation:</p> <p>“No licensed vendor shall occupy a stand upon or in any of the places mentioned in Section 1 of Article VIII (of the Police [Regulations), except on duly designated places, nor shall any such vendor ply his trade or solicit custom upon or in any such places between the hours of ten o’clock, p. m., and seven o’clock, a. m., nor at any time to the interference with traffic; nor shall he in any such places as aforesaid, except on duly designated places, stand for a longer period than may be necessary to make a sale, nor to the annoyance of residents of the District or passers-by.”</p> <p>This regulation stood for about three years, after which, in the present year 1902, it was superseded by that which is now in force, and which is in the following terms:</p> <p>“No licensed vendor shall occupy a stand upon or in any of the places hereinafter mentioned in Section 1 of Article VIII (of the Police Regulations), except upon duly designated places, for a longer period than may be necessary to make a sale after having been approached or stopped for that purpose; nor shall any such vendor ply his trade or solicit custom upon or in any such places between the hours of ten •o’clock, p. m., and seven o'clock, a. m., nor at any time so as to interfere with traffic, nor to the annoyance of residents dr passers-by.”</p> <p>The appellant was charged in the police court with a violation of this regulation, in that, on June 21, 1902, being a licensed vendor, he stopped his push-cart on Pennsylvania avenue for a longer period than was necessary to make a sale, not having been approached and stopped for the purpose, and thereby hindered and delayed the passage of other vehicles. The testimony in support of the charge, as taken from the bill of exceptions, is to the effect — “ that the defendant, who is a licensed vendor, stopped with his push-cart of bananas on the south side of Pennsylvania avenue, near’ the curb line, between Seventh street and Louisiana avenue, on June 21, 1902, for a longer period than was necessary to make a sale, not having been approached or stopped for that purpose, although he made- several sales before moving on; that there was no obstruction of the free passage of said avenue other than the fact of the push-cart stopping longer than was necessary to make a sale, and that the push-cart did not hinder and delay the passage of other vehicles beyond the fact that it ■stopped near the curb longer than necessary to malee a sale, ■as there was ample room to pass the said cart on said avenue”’</p> <p>Whether this was all the testimony in the case does not appear from the record; the bill of exceptions does not purport so to state, and counsel for the appellee avail themselves, •of this omission so far as to urge that, in the absence of such a statement, the bill of exceptions does not show reversible error.</p> <p>Eonr instructions were asked on behalf of the defendant in the cause: (1) That the defendant was not guilty of the charge; (2) That so much of the regulation as provided that no licensed vendor should stop upon any street or avenue of the city of Washington for a longer period than should be necessary to make a sale, after having been approached or stopped for that purpose, should be held to be unreasonable, unjust, unconstitutional, null and void, and, therefore, the defendant should be acquitted; (3) That the mere stopping by the defendant with his push-cart on Pennsylvania avenue northwest, for a longer period than was necessary to make a sale, without any testimony tending to show that his act of stopping obstructed the street or hindered the passage of vehicles thereon, would not render him guilty of the charge against him; (4) That the mere stopping of the defendant with his push-cart on Pennsylvania avenue, although not •approached or stopped for the purpose of making a sale, without any testimony tending to show that his act of stopping did actually obstruct the passage of the avenue, would not render him guilty, and he should, therefore, be acquitted.</p> <p>These instructions were rejected, and the defendant was found guilty and sentenced to pay a fine of ten dollars. Prom this judgment he has appealed.</p> <p>It may be added that, prior to the trial and before the defendant interposed the plea of “ not guilty,” a motion was filed on his behalf to quash the information against him, based upon the alleged invalidity of the police regulation in question. This motion to quash was overruled. This it is unnecessary for us to notice, since the same questions are raised by the instructions requested at the trial and refused.</p>

<p>Hearing on an appeal by tbe petitioner from an order of the Supreme Court of the District of Columbia refusing to lay a rule upon the Secretary of State to show cause why a writ of mandamus should not issue, and dismissing a petition therefor.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing or an appeal by tbe respondent, tbe Postmaster-General of tbe United States, from an order of tbe Supreme Court of tbe District of Columbia directing a peremptory writ of mandamus to issue to compel bim to receive and transmit in tbe mails a certain publication as second-class mail matter.

Hearing on an appeal by the respondent from an order of the Supreme Court of the District of Columbia, directing the issue of a writ of mandamus.

<p>Hearing on an appeal by tbe relator from an order of tbe Supreme Court of the District of Columbia, dismissing a petition for tbe writ of mandamus to compel tbe Postmaster-General to admit a certain periodical publication to tbe mails as second-class mail matter.</p> <p>Tbe Court in tbe opinion stated tbe case as follows:</p> <p>In tbis case, as in tbe two just preceding, tbe question is that of the right of tbe relator to have a periodical publication issued by it practically as an advertisement of its business received and transmitted in tbe mail as second-class mail matter. Tbe circumstances, however, and tbe conditions here are very different from those of tbe preceding cases, and tbe statute law bearing on tbe case is somewhat different.</p> <p>By an act passed on July 16, 1894, Congress enacted,</p> <p>“ That from and after tbe passage of tbis act all periodical publications issued from a known place of publication at stated intervals and as frequently as four times a year by or under tbe auspices of a benevolent or fraternal society or order organized under tbe lodge system and having a bona fide membership of not less than one thousand persons, or by a regularly incorporated institution of learning, or by or under tbe auspices of a trades union, and all publications of strictly professional, literary, historical, or scientific societies, including tbe bulletins issued by State boards of health, shall be admitted to tbe mails as second-class matter and tbe postage thereon shall be tbe same as on other second-class, matter, and no more: Provided, further, That such matter shall be originated and published to further the objects and purposes of such society, order, trades union, or institution of learning, and shall be formed of printed paper sheets without board, cloth, leather, or other substantial binding, such as distinguish printed books for preservation from periodical publications” (28 Stat. 105).</p> <p>The relator, the Chicago Business College, is an educational organization, incorporated under the general incorporation act of the State of Illinois by certificate of incorporation, and has its school in the city of Chicago. It is a joint-stock company, composed of three persons, with an authorized capital stock of ten thousand dollars, divided into one hundred shares of the par value of one hundred dollars each, of which one of the corporators holds fifty shares, another forty-nine shares, and the third one share; and its purpose is to conduct a “business college,” where the various branches of an ordinary common-school education are taught. It publishes a weekly publication, designated by the name of “ Business Education,” which is an advertising medium for the relator’s business, intended to attract students by setting forth the advantages of the relator’s methods of instruction. Claiming to be a “ regularly incorporated institution of learning,” the relator seeks to have this publication transmitted through the mails as second-class mail matter under the acts of Congress of March 3, 1879, and July 16, 1891, by the latter of which it is claimed that such transmission is authorized.</p> <p>About December 10, 1897, the relator made application to the Post-Office Department for the admission and transmission of the publication as second-class mail matter; and the application was allowed, and a certificate to that effect was. issued to the relator. This certificate was revoked and canceled on August 22, 1901. On December 6, 1901, the relator again made application to the Department for the admission of the publication into the mails as second-class matter; and on January 10, 1902, it received formal notice from the Department that after due consideration the application had been refused, on the ground that the relator was not a regularly incorporated institution of learning within the meaning of the act of July 16, 1894.</p> <p>Thereupon, on April 1, 1902, it instituted the present proceedings by filing its petition in the Supreme Court of the District of Columbia for a writ of mandamus to require the Postmaster-General to receive the publication in question as second-class mail matter. To the rule to show cause served on him, the Postmaster-General made return, in substance to the effect that the duty was imposed upon him by law to determine whether the relator’s publication was such as was entitled to be received into the mails as second-class matter; that he had exercised his judgment and discretion in such determination; and that, in his opinion, the relator was not a regularly incorporated institution of learning in the sense of the act of Congress, and for that reason the publication had not been admitted into the mails as second-class matter. Hearing was had on the petition and answer and a stipulation of counsel as to some few facts, one of them being “ that the relator is a corporation regularly incorporated as an institution of learning, under the laws of the State of Illinois ”; and the court below, holding that the relator was not, in the contemplation of the law, a duly incorporated institution of learning, that the Postmaster-General was correct in his interpretation of the law to that effect, and that even if he were wrong the court would not undertake to supervise his decision, discharged the rule to show cause, denied the writ of mandamus, and dismissed the petition.</p> <p>Prom the order of the court thereon rendered the relator has caused this appeal to be brought to this court.</p> <p>1. Por a good definition of the word “ institution ” and for an authority carrying out the theory that Congress meant by the words “ a regularly incorporated institution of leaming ” institutions of a permanent character in contradistinction to a temporary enterprise, see Indianapolis v. Sturdevant, 24 Ind. 391-395; Humphries v. Little Sisters of the Poor, 27 Ohio St. 201.</p> <p>2. The main branch of this case turns upon the interpretation of the words “ a regularly incorporated institution of learning,” and it is contended in behalf of appellant that these words, having a known definition and being plain in their meaning, no room is left for construction by the court, but the ordinary, literal meaning must prevail. The construction placed upon the act of July 16, 1894, by the respondents and the learned judge of the Supreme Court of the District of Columbia is a forced one, ignoring the plain, general acceptation of the words used, and through such forced construction makes an exception to the positive terms of that general statute, contrary to the well-settled rules of law and the weight of authority. Shreve v. Gheesman, 69 Fed. Eep. 785, 789; Madden v. Lancaster Gounty, 65 Fed. Eep. 188, 195; Bennett v. Worthington, 24 Ark. 487, 494. The language in the act under consideration is plain and unambiguous, and consequently Congress must be presumed t5 have intended what is literally expressed by the language used and no exception can be read into the act, not clearly expressed, and the construction placed upon the language by the learned judge of the court below cannot be permitted. Maillard v. Lawrence, 16 How. 251, 261; Lalce Co. Gomrs. v. Rollins, 130 H. S. 662, 665, 666, 667; Knox Go. v. Morton, 68 Fed. Eep. 787-789; Shreve v. Gheesman, 69 Fed. Eep. 785, 789; St. Paul M. & M. Ry. Go. v. Sage, 71 Fed. Eep. 40-47; Barter Asphalt Go. v. City of Denver, 72 Fed. Eep. 336-345; McMaster v. N. 7. Life Ins. Go., 99 Fed. Eep. 856-868; Arthur v. Taney, 96 H. S. 108, 110; Glover v. TJ. S., 164 H. S. 294-297; Smythe v. Pishe, 23 Wall. 374-382; Madden v. Lancaster Go., 65 Fed. Eep. 388-195.</p> <p>3. Tt is not claimed by respondents that any change has occurred in the incorporation of appellant or in the character of its publication, or that any features of the same differ in any regard since the granting of the first certificate of entry on December 10, 1897. Upon that day the department construed the act of July 16, 1894, as including within its terms the publication of appellant, and on August 22, 1897, by a subsequent construction of the act (the construction contended for by appellees here), the department has by forced construction reversed its prior contemporaneous construction and has arbitrarily and without reason and in violation of the law, denied to appellant the privilege granted by the act and has excluded its publication as second-class mail matter. This was wrong. TJ. 8. v. Alabama, G. S. BR. Go., 142 U. S. 615, 621; U. 8. v. Railway Co., 37 Fed. Rep. 551-556. The meaning of the language of the act being plain and unambiguous, the prior contemporaneous construction of the same by the Post-Office Department will have weight with this court in arriving at the intent of Congress. Edwards’ Lessee v. Darby, 12 Wheat. 206, 210; TJ. 8. v. State Bank of North Carolina, 6 Pet. 29, 39; Peabody v. Stark, 16 Wall. 240, 243; TJ. 8. v. Moore, 95 U. S. 760, 763; TJ. 8. v. Pugh, 99 U. S. 265, 269; Brown v. TJ. 8., 113 U. S. 568, 571; TJ. 8. v. Hill, 120 U. S. 169, 180; Robertson v. Downing, 127 U. S. 607, 613; TJ. 8. v. Philbrick, 120 U. S. 52, 59; Germania Iron Co. v. James, 89 Fed. Rep. 811, 817; 8t. Paul M. & M. Ry. v. Phelps, 137 U. S, 528, 533.</p> <p>4. The respondents should be estopped from asserting that the prior construction of the act of Congress of July 16, 1894, admitting the publication of appellant, was erroneous. Having once entered the publication as second-class mail matter, and permitted appellant to “ invest its money ” and “ build property rights upon the faith of their action.” State of Indiana v. Milk, 11 Fed. Rep. 389-397, and cases cited; Cohn v. Barnes, 5 Fed. Rep. 326-334; Hough v. Buchanan, 27 Fed. Rep. 328; Pengra v. Mum, 29 Fed. Rep. 830-836; Rogers L. M. W. v. Am. E. Co., 164 U. S. 559; Michigan L. & L. Co. v. Rust, 168 U. S. 589; TJ. 8. v. McLaughlin, SO Fed. Rep. 147-162; Clark v. TJ. 8., 95 U. S. 539, 544; Branson v. Wirth, 17 Wall. 32, 42; TJ. 8. v. M., K. & T. Ry. Co., 37 Fed. Rep. 68, 71. The ruling of the Post-Office Department, admitting the publication of appellant for nearly four (4) years, had become of necessity a kind of “ common law,” and should not be lightly set aside. TJ. 8. v. McDaniel, 7 Pet. 1, 15.</p> <p>5. The certificate was issued and revoked, and its reissue,' a purely ministerial act, is sought to be compelled by the writ of mandamus. No claim has been made or will be made by appellees that the character of the organization of appellant or its publication has changed since the issuance of the certificate of entry in 1897; in fact, it is admitted that appellant “ is a corporation, regularly incorporated as an institution of learning under the laws of the State of Illinois,” and it is competent for this court to inquire into the reasons why appellees refuse to perform their ministerial duty and issue the certificate of entry, and if it is found that their refusal is an exercise of arbitrary power or that the reasons assigned are capricious, without foundation in law or contrary to law, the court may then, by the writ of mandamus, compel such performance. TJ. 8. ex rel. West v. Hitchcock, 30 Wash. L. Pep. 186 (March 20, 1902) ; Roberts v. U. 8., 176 U. S. 221, 231. Courts do not countenance the exercise of arbitrary power by executive officers, and where contemporaneous construction of a statute is given by the executive department of Government and acted on for a number of years, courts will look with disfavor upon any sudden change whereby parties who have contracted with the Government upon the faith of such construction may be prejudiced. TJ. 8. v. Alabama, 142 U. S. 615, 621.</p> <p>6. The court below had the power to issue the writ of mandamus as prayed. Marbury v. Madison, 1 Cranch, 137, 164, 166, 171; Kendall v. TJ. 8., 12 Pet. 524, 610, 612; Roberts v. U. 8., 176 U. S'. 221, 230, 231; TJ. 8. ex rel. West v. Hitchcock, 30 Wash. L. Pep. 186 (March 20, 1902).</p>