Volume 22 — Appeals, District of Columbia

<p>Hearing on a petition by tbe appellees for the writ of certiorari to the Supreme Court of the District of Columbia, to certify to this court certain proceedings had in that court after the docketing of an appeal in this court, having for their object the correction of the bill of exceptions, included in the record filed in this court.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>We have here presented an application for a writ of certiorari to idle Supreme Court of this District requiring that court to certify to this court an order of the court below allowing certain amendments and alterations in the bill of exceptions embraced in the transcript of the record transmitted to and filed in this court on appeal in the above-entitled cause; the said appeal standing on the calendar of this court for hearing.</p> <p>It appears that the cause was tried in the court below in March, 1902, and during the trial several exceptions were taken and noted by the plaintiffs to rulings of the court, but no formal exceptions were prepared during the trial, nor during the term of the court at which the trial took place. The verdict and judgment being for the defendants, the plaintiffs procured more than one extension of time for preparing and having signed the bill of exceptions. There seams to have been some misunderstanding among counsel as to what should and what should not be incorporated in the bill of exceptions. However, after several conferences among counsel and with the justice before whom the trial was had, the bill of exceptions was supposed to be settled to the satisfaction of all concerned, and was signed by the justice and placed on file. This Appears to have been on July 17, 1902. The transcript of the record was made out and sent up to this court, and was filed here on August 4, 1902, and the appeal was docketed to the October term of this court, 1902, though the record was not printed until some time after the commencement of the term. The cause has been continued from term to term until the present April term of this court, and the appellants’ counsel have prepared and filed their printed brief for argument.</p> <p>It is alleged that it was not until a copy of the brief was furnished to counsel for the appellees that certain wrong insertions of fact had been made in the bill of exceptions, and that certain omissions of fact therefrom had occurred, were discovered by counsel for appellees, and that such insertions and! omissions may be material to the determination of the appeal:: That such insertions and omissions had been made, as alleged, without the knowledge or consent of counsel for appellees, and they at once applied to counsel for appellants to have the proper corrections made in the exception, but this application was declined; the counsel for the appellants insisting that the bill of exceptions was correct as it stood, and as it appeared in the transcript on file in this court. Whereupon the counsel for the appellees, on the 10th day of March, 1903, filed in the court below a motion to correct the bill of exceptions, in respect to the particulars in which it appeared, as alleged, to be erroneous and contrary to the truth as originally settled and set forth in the bill of exceptions, with the consent of counsel of both sides. This application was supported by affidavits of counsel for the appellees. But there was a counter-affidavit filed by one of the counsel for appellants; and the power and jurisdiction of the court to amend or change in any respect the bill of exceptions as it then appeared and as it had been transmitted to this court, was denied in most unqualified terms by counsel for the appellants. The court, however, notwithstanding the objection, heard argument of both sides as to Hie matters of fact and the alleged errors in the bill of exceptions, and upon consideration, aided by the affidavits filed, found certain facts in respect to which the existing bill of exceptions was incorrect, and contained matters that had not been offered in evidence, and had omitted matter that should have been incorporated therein. But the judge did not sign a new or amended bill of exception, but simply incorporated his findings in the form of an order, which he declared should have effect and relation to July 11, 1902, the time of signing the original bill of exceptions, though in fact the order was made on the 3d day of April, 1903. An opinion of the chief justice was filed and made a part of the order, showing the ground upon which the order was founded.</p> <p>By this order it is directed that the said original bill of exceptions should be and was corrected in certain particulars mentioned; the order stating the particulars and how the exception should be altered and amended. To this order and the findings therein the appellants objected, and excepted.</p> <p>In his opinion, made part of the order, the learned chief justice says: “ It is somewhat difficult, indeed, for me to remember each distinct item of proof, and what was said and done in relation to each particular exception that was taken by the parties in the case. There are a great many exceptions taken in the case by each of the parties, but by looking over these papers, and looking over the testimony, to some extent at any rate, and by the affidavits and statements 'by the attorneys in the case, in regard to what did happen in reference to the particular matters involved in this motion, I have had my recollection refreshed and revived to a considerable extent. My own recollection accords with the recollection and with the claim uf counsel for the defendants on one point in particular, and that is what is called the photograph copy of the certificate, J. D. V. No. 1, together with the will, J. D. V. No. 2 to which it was attached,” etc.</p> <p>In another part of his opinion he says: “ I am influenced in the action which I propose to take in regard to the matter before me in order that the Court of Appeals may itself have the matter as nearly as possible before it, and let it determine as to the question of law and as to questions of fact, as to what the proof here may show is the proper thing to be done. That is so far as it would relate to an allowance of an amendment of the bill of exceptions. I do not wish to be understood as having undertaken to determine any question relating to the charge of bad faith on the part of counsel for the plaintiffs. I think the omission and insertion of the matter complained of were due to inadvertence or oversight, and not to design. I suppose the Court of Appeals should not undertake to say whether an amended bill of exceptions contained the truth or not — or, at least, it did not contain the truth. I suppose it would presume it did, provided it was legally incorporated.”</p> <p>After obtaining the order of the 3d of April, 1903, authorizing the amendment, the appellees applied to this court to issue a writ of certiorari to the court below, requiring the order of that court, and the proceedings upon which it was founded, to be certified to this court, as part of the original record, a transcript of which is on file in this court. To this application the appellants have answered, and strongly object to the same, and deny the power and jurisdiction of this court to entertain the application.</p> <p>The case of Churchill v. Hill, 59 Ark. 54, is almost identical with the case at bar, and there the court held that a judge, after the expiration of the term, had authority to correct a bill of exceptions so as to identify certain papers therein mentioned. In United States v. Breitling, 20 How. 253, the Supreme Court of the Hnited States said, in permitting a bill of exceptions to be signed after a term, that the rules of court were made for justice and not for injustice. In Hunnicut v. Peyton, 102 H. S. 333, the court held that the bill of exceptions could be signed out of the term after the writ of error had gone to the appellate court. In Michigan Ins. Co. v. Eldred, 143 H. S. 293, while denying in that case the right to grant the bill of exceptions, the Supreme Court said that under extraordinary circumstances an amendment could be made, and that the bill of exceptions could either be altered, amended or signed after the term where the circumstances warranted such action. See also The Ore & Iron Co., Petitioner, 128 U. S. 544; Davis v. Patrick, 122 TJ. S. 138; 3 Encyc. Plead. & Prac., p. 501; Lefferts v. The State, 49 N. J. L. 28; Harris v. Tomlinson, 130 Ind. 426; Morgan v. Hays, 91 Ind. 133; Marley v. Homaday, 69 Ind. 106; Hannah v. Dorrell, 13 Ind. 465.</p>

Hearing on an appeal from a judgment of the Supreme Court of the District of Columbia, upon a verdict, in an action of ejectment. The Court in the opinion stated the case as follows: This is a suit in ejectment to determine the title to a piece of real estate in the city of Washington, known as lot numbered 23, in Davidson’s subdivision of lots in square numbered 166, which in the year 1887 and prior thereto was the property of one William Thomson.

Heading on an appeal by tbe caveator from an order of the Supreme Court of the District of Columbia, sitting as a probate court, confirming a previous order of the court admitting a will to probate as a valid will of personalty, and admitting it to probate as a valid will of real estate.

<p>Mandamus; Patents; Appeal from Primary Examiner; Division of Claims; Process and Apparatus; Definitions of; Patent Practice, Rules of; Commissioner op Patents, Powers of.</p> <p>1. On a petition for mandamus against the Commissioner of Patents to-compel him to direct the primary examiner to answer and forward the petitioner’s appeal to the examiners-in-chief, in order that the latter may review his action, it is incumbent upon the petitioner to show clearly and affirmatively that he had a right to appeal, and that he is-entitled to the writ to enforce that right.</p> <p>2. Where the primary examiner requires a division, under rule 41 of the-Patent Office, of the process claims and the apparatus claims in an application for a patent, refusing to act upon the merits of the application until the division is made, an appeal from his action to the-examiners-in-ehief does not lie, but his action may be reviewed on a petition to the Commissioner under rule 45; and the Commissioner’s, action on such a petition, as it does not involve the merits and final rejection of the claims, is final, and not reviewable by this court. Mandamus will not, therefore, lie to compel the Commissioner, under-such circumstances, to direct the primary examiner to answer and forward the applicant’s appeal to the examiners-in-chief; construing- §§ 481, 482, 4309 and 4910, U. S. Rev. Stat. (U. S. Comp. Stat. 1901, pp. 271, 272, 3390, 3391) and rules 41, 42, 45, 133, and 134 of the-Patent Office.</p> <p>3. A process, within the meaning of the patent law, is the mode of treatment of certain materials to produce a certain result, and consists of an act or series of acts performed upon the subject-matter to be transformed and reduced to a different state of things; while a machine or apparatus is a combination of mechanical elements, which may or may-not be useful in performing the acts which constitute the process.</p> <p>4. The rules of practice of the Patent Office, when not inconsistent with the statutes relating to the patent system, have the force and effect of law in all matters to which they relate, and are not to be declared, invalid upon any strained or doubtful construction.</p> <p>5. The Commissioner of Patents in all matters involving the validity and patentability of claims and priority of invention exercises only an appellate jurisdiction; but in matters of practice and procedure, not involving the merits and final rejection of claims, he acts in his supervisory capacity as head of the Patent Office, and his action is final, and not reviewable on appeal.</p>

<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>The plaintiff in error, Robinson Lappin, was convicted in the police court of the District upon an information charging him with engaging in the business of a general broker without having first paid the license tax imposed by the act of Congress approved July 1, 1902 [23 Stat at L. 621, p. 1352], and has been granted a writ of error. ^</p> <p>The tax which the plaintiff in error failed to pay is provided for in par. 15, § 6, of the act aforesaid, which reads as follows:</p> <p>“Par. 15. General brokers shall pay a tax of $250 per annum. Every person, firm, company, or association not incorporated (except insurance and real-estate brokers acting as such) that solicits business from the general public by advertisement or otherwise, and that purchases, sells, or negotiates for others securities, shares, stocks, bonds, exchange, bullion, coin, money, bank notes, or promissory notes, or that deals in futures on market quotations of prices or values on merchandise, shares, stocks, bonds, or other securities, or accepts margins on prices or values of said shares, stocks, bonds, merchandise, or securities, shall be deemed a general broker: Provided, that the Washington Stock Exchange, through its president or treasurer, shall pay to the collector of taxes of the District of Columbia a sum equal to $500 per annum in lieu of tax on the members thereof for business done on said exchange; Provided further, that any broker who is a member of a regularly organized stock exchange located outside of the District of Columbia, and transacting a brokerage business therein, shall pay a sum equal to $100 per annum to the collector of taxes of the District of Columbia: And he it further provided, that if any person or firm shall have paid the tax in this section provided for banks and bankers, such person or firm shall not again be taxed as a broker or brokers.”</p> <p>A demurrer to the information having been overruled, the defendant pleaded not guilty, and the case was submitted to the court upon the following agreed statement of facts:</p> <p>* ^The defendant, Nobinson Lappin, was some time prior to the 1st day of July, a. d. 1902, and from said 1st day of July down to the time of the filing of the information herein, and since the filing thereof to the date hereof, was and still is engaged at his place of business on the comer of Seventh and E streets northwest, in the city of Washington, District of Columbia, in conducting the business of a general broker, in that he solicited business from the general public by advertisement and otherwise to purchase, sell, and negotiate for it securities, shares, stocks, and bonds, and dealt in futures on market quotations on prices or values on merchandise, shares, stocks, and bonds afid other securities, and accepted margins on prices or values of said shares, stocks, bonds, merchandise, and securities. The said defendant is not a member of a regularly organized stock exchange located outside of the District of Columbia, and has not been such a member at any time since said 1st day of July. Subsequent to said 1st day of July demand was made upon said defendant by the assessor of tbe District of Columbia for tbe payment of a tax of $250 for a license to conduct his said business as a general broker in said District for one year from and after tbe 1st day of July, a. d. 1902, which tbe said defendant refused to pay, and the said assessor refused to issue said license without said payment of $250.</p> <p>“Tbat Allison C. Jenkins and Elmer E. Simpson, trading and doing business as general brokers at No. 1229 E street northwest, in said city and District, under tbe firm name and style of Jenkins & Simpson, on tbe 15th day of September, a. d. 1902, paid tbe collector of taxes of tbe District of Columbia $100, and were granted a license by tbe assessor of said District to conduct tbe business of general brokers in said District for one year from tbe 1st day of July a. d. 1902. Tbe business of tbe said Jenkins & Simpson was and is tbe same in all respects as tbat above described as conducted by tbe defendant, Robinson Lappin, tbe said Jenkins & Simpson being, however, at tbe time of tbe issuance to them of their said license, members of a regularly organized stock exchange outside of the District of Columbia, to wit, tbe Denver Stock Exchange of tbe city of Denver, State of Colorado.</p> <p>“Counsel for tbe District of Columbia objecting to tbe relevancy and materiality of tbe facts set forth in tbe last preceding paragraph.”</p> <p>1. There is no distinction of class made by the act of July 1, 1902, and tbe tax must therefore be uniform. Curry v. District of Columbia, 14 App. D. C. 441; Railway v. Ellis, 165 IT. S. 150; Cotting v. Stock Yards Co. 183 IT. S. 79; Yot Sang, 75 Eed. 983; Yick Wo v. Hopkins, 118 IT. S. 356; State v. Hinman, 65 N. H. 103; State v. Pennoyer, 65 N. H. 113; Fechheimer v. Louisville, 84 Ky. 306, 21 Am. & Eng. Enc. Law, 2d ed. p. 804, and cases cited. See also State v. Moore (N. C.) 22 L. R. A. 472; State v. Schoenig, 72 Minn. 528; State v. Ash-brook, 154 Mo. 375; State v. Endom, 23 La. Ann. 663; New Orleans v. Insurance Co. 23 La. Ann. 449; St. Louis v. Speigel, 75 Mo. 145 ; Com. v. Snyder, 182 Pa. 630; State v. Morgan, 50 N. J. L. 389; Judson, Tan. 1903, pp. 561, 595, 599.</p> <p>2. Even assuming that the act of Congress approved J uly 1, 1902, attempts a division, into different classes, of the general broker and the broker who is a member of some regularly organized stock exchange outside of the District of Columbia, yet such classification here attempted makes a distinction between persons engaged in the same business and under the same conditions, and is not only arbitrary, but unreasonable and unjust, and violates the equality clause of the 14th Amendment to the Federal Constitution. Gotting v. Kansas Gity Stock Yards, 183 U. S. 79 ; E. Co. v. Ellis, 165 U. S. 159; State v. Ashbrook, 154 Mo. 376.</p> <p>1. There is a distinction of class between a general broker as defined in the act-of Congress of July 1, 1902, and a broker who is a member of a regular stock exchange. A state may classify property for the purpose of taxation. Connolly v. Union Sewer Pipe Co. 184 D. S. 563.</p> <p>2. Congress has exclusive legislation over the District of Columbia. Capital Traction Co. v. Hof, 174 D. S. 5; Mattingly v. District of Columbia, 97 U. S. 687. Congress has the power to discriminate in taxation in the District of Columbia. It may exempt all property employed for manufacturing purposes (Welch v. Cook, 97 IT. S. 541) and church property, and “may, at its discretion, exempt certain classes of property from taxation, or may tax them at a lower rate.” Gibbons v. District of Columbia, 116 IT. S. 404. The power of Congress to legislate for the District of Columbia includes the power to provide for the assessment on abutting lands and lands benefited, arbitrarily, one half or more of the damage for and in respect of land condemned for the opening of the streets. Such power is to be referred, not to the right of eminent domain, but bo the right of taxation. Wight v. Davidson, 181 IT. S. 371, and cases cited. The law reports in this jurisdiction contain instances (Justh v. Holliday, 2 Mackey, 346; Tully v. Morgan, 21 D. C. 88) of the evils of gambling on margins through alleged stock brokers. Gurley v. MacLennan, 17 App. D. C. 182.</p> <p>3. It is not claimed in this case, and it nowhere appears from the agreed statement of facts, that the plaintiff in error was connected in any way with any stock exchange. It is not necessary to claim that he is one of that class so well known in this District, conducting what is commonly known as a “bucket shop,” wherein all of the parties gamble on the rise and fall of stocks by means of quotations furnished by a detached wire unconnected with any stock exchange or any member of a stock exchange.</p> <p>It is sufficient, we submit, to know, that such places existed in the District of Columbia when the act in question was passed, and now exist therein. Besides, a member of the Washington Stock Exchange or other regularly organized stock exchange, it is fair to presume, has some financial standing, and is amenable to discipline for violation of its rules, or expulsion for grave business delinquencies. Surely a membership of a regularly organized stock exchange is of itself a reasonable distinction above “curbstone” and “bucket shop” brokerage. Regulation of the latter business can be justified and distinguished on grounds of public policy, and is within the police power. The purpose to protect the community is sufficient justification. Fulton v. District of Columbia, 2 App. D. 0. 431 — 436.</p> <p>4. The imposition of a tax of $250 per annum on general brokers who are not members of a regularly organized stock exchange, and of $100 per annum on brokers who are members of such an exchange, constitutes a reasonable classification for purposes of taxation. Curry v.' District of Columbia, 14 App. D. 0. 423, and Hazel v. District of Columbia, 16 App D. C. 283, do not involve the authority of Congress under the 14th Amendment; but, if they do, the latter case is authority to show that a distinction is not arbitrary or unjust which divides the same business into two classes; the one respecting the cab service of a railroad corporation, and the other respecting the same service by individuals engaged in the same business. The 14th Amendment was not intended to compel the State to adopt an iron rule of equal taxation (Bell’s Gap B. Go. v. Pennsylvania, 134 IT. S. 233), or “cast-iron rule” (Florida G. & P. It. Co. v. Reynolds, 183 IT. S. 471). Thus, it is the right of the States to exempt certain corporations (Merchants’ & M. Nat. Bank v. Pennsylvania, 167 IT. S. 461), to tax inheritances in accordance with the degrees of relationship (Magounv. Illinois Trust & Sav. Go. 170 IT. S. 283), to tax business in accordance with the amount thereof (Qlark v. Titusville, 184 IT. S. 329), and to restrict the locality in which a business may be conducted (Barbier v. Gonnolly, 113 IT. S. 27). Kequiring a license for elevators and warehouses on a railroad right of way or depot does not deny to the proprietors the equal protection of the laws because a license is not required for elevators and warehouses differently located, public policy being a sufficient justification. Cargüí Go. v. State, 180 IT. S. 452. See also Capital Gity Dairy Go. v. State, 183 IT. S. 238; Missouri v. Lewis, 101 U. S. 22; Brown v. New Jersey, 175 U. S. 177. That a distinction respecting personal character and qualifications for business would not infringe the constitutional requirement was recognized in Yick Wo v. Hopkins, 118 IT. S. 356. See also American Sugar Ref. Go. v. Louisiana, 179 U. S. 89; Williams v. Fears, 179 IT. S. 270; People v. Roberts, 171 IT. S. 658; Merchants’ & M. Nat. Bank v. Pennsylvania, 167 IT. S. 463; Gotting v. Kansas Gity Stock Yards, 183 IT. S. 79, was a case not at all concerned with the subject of taxation. There the act of the State of Kansas regulating charges in public stock yards applied only to the defendant corporation, and to no other companies or corporations engaged in like business, and therefore has no application to the present case. The difficulty in drawing the line between reasonable and unreasonable classification is illustrated by two cases, neither of which arose under any taxing law, but both were occasioned by a dispute about taxable costs. The first case mentioned is that of R. Co. v. Filis, 165 IT. S. 159. In so far as these cases may be applicable to the present discussion, the latter case (Atchison, T. & S. F. R. Go. v. Matthews, 174 IT. S. 96), is favorable to our contention.</p> <p>5. The 14th Amendment to the Federal Constitution is not applicable. The Supreme Court of the United States has held that the jurisdiction of Congress in matters of taxation in the District of Columbia is not controlled by the provisions of this amendment. Wight v. Davidson, 181 U. S. 384. The first ten Amendments to the Federal Constitution contain no restrictions •on the powers of the State, but were intended to operate solely on the Federal government. Brown v. New Jersey, 175 U. S. 172; ÁSlaughter Souse Cases, 16 Wall. 36. Prior to 1868 there was no guaranty in the Federal Constitution of the equal protection •of the laws as against state action. The provisions of the 14th Amendment are addressed in its prohibitions to the States. Unless, therefore, as it seems to us, the District of Columbia, for the purpose of taxation by Congress, can be considered to be a State, the statute here questioned is not unconstitutional. The District of Columbia has been held to be a State for some purposes, but for other purposes it has been declared not to be a State. Two of the illustrations are found in the following cases: According to the definitions of writers on general law, the District of Columbia, being a separate political community, is a State. De Ceofroy v. Biggs, 133 U. S. 258. But the District of Columbia is not a State within the meaning of the provision giving courts of the United States cognizance of controversies between citizens of different States. Sooe v. Jamisson, 166 U. S. 395.</p>

Hearing on an appeal by tbe plaintifE from a judgment of the Supreme Court of the District of Columbia, quashing a writ of ca. sa. and discharging the defendant from custody in a proceeding brought by a creditor under §§ 794, 795 D. C. Rev. Stat. charging the defendant with fraudulently conveying his property with intent to hinder or delay the recovery or payment of his debts.

Hearing on an appeal by the complainant, specially allowed, from an order of the Supreme Court of the District of Columbia dissolving a temporary injunction and discharging a rule to show cause why a permanent injunction should not be granted, in a suit in equity to restrain the erection of an addition to a dwelling house on a lot adjoining that of the complainant. ■ The Court in the opinion stated the case as follows: A special appeal has been allowed in this case from an…

Hearing on an appeal by the petitioners from an order of the Supreme Court of the District of Columbia, sitting as a court of probate, dismissing a petition to vacate an order granting letters of administration.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia on the verdict of a jury in an action to recover damages for the negligent killing of the plaintiff’s intestate.

The Court in the opinion stated the case as follows: The plaintiff in error, Patrick Mann, was prosecuted and convicted in the police court of the District of Columbia, on an information, whereby he was charged with transporting a dead horse through the streets of the city of Washington, and across the Long bridge over the Potomac river to a place in the State of Virginia, near the Potomac river, about 2 miles south of said Long bridge, in alleged violation of one of the…

Hearing on an appeal by tbe petitioner from an order of tbe Supreme Court of tbe District of Columbia discharging a rule on tbe Secretary… Held: was the fact that although it is possible to serve the writ here upon a person having power to produce the body of the prisoner, yet it is only upon the immediate custodian of the body that the writ may be properly served. Such a construction of the law would involve us in the absurdity to which we have heretofore called attention.

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

<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 tbe opinion.</p>

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court, District of Columbia, upon a verdict directed by the court at the close of all of the testimony, in an action against a street railway company to recover damages for personal injuries.

Hearing on a motion to dismiss an appeal from an order overruling a motion to vacate an order of publication against a nonresident defendant, and from a decree pro confesso against such defendant for failure to answer a bill in equity. The Court in the opinion stated the case as follows: This case has been heard upon the motion of the appellee to dismiss the appeal because the orders appealed from are interlocutory, and no special appeal therefrom has been allowed.

<p>Hearing on an appeal by tbe defendant from a judgment of'</p> <p>the Supreme Court oí the District of Columbia upon a verdict of a jury in an action against a street railway company to recover damages for personal injuries.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from a judgment of the Supreme Court of the District of Columbia rendered in a suit entered in that court by the appellee, Edward A. Pliek, against the appellant, the Metropolitan Railroad Company, to recover for injuries sustained by the appellee, as the result of a collision between a wagon driven by the appellee and one of the cars of the appellant company.</p> <p>On October 17, 1900, the day of the accident, the appellee was driving a team of horses attached to a wagon filled with sand, on Thirty-fifth street, in this city, in a northerly direction from N to O street, and intended to go northward on Thirty-fifth street beyond 0. On Thirty-fifth street, between O street and Prospect avenue, which is south of N street, there is a single line of streetcar track of the appellant company, whereon the cars, entering from Prospect avenue, are run northwardly to O street, where they turn to run eastwardly on O street. The grade of the street rises very considerably from N to O street, and at the turn of the railroad track at the intersection of O and Thirty-fifth streets, the rails make a somewhat steep incline. To surmount the grade here it seems to be necessary to apply considerable force to the cars, and it seems, also, that, in order to avoid the incline, wagons and other vehicles prefer to take the west side of the street, where there is a space of between 18 and°20 feet of roadway between the car track and the curbstone on the west side of the street.</p> <p>The appellee had come from N street into Thirty-fifth and turned northward on his way, driving on the east side of the track, until he reached the middle of the block, when, in order to avoid the incline at the corner, he crossed the track and proceeded up on the west side of it. Just as he reached the intersection of O and Thirty-fifth streets, his wagon was struck by the rear end of one of the appellant’s cars, which had come up behind him on Thirty-fifth street and was at that moment turning into O street, and he was thrown from the wagon and was injured, and the wagon was somewhat damaged. For this injury and damage he instituted the present suit.</p> <p>At the trial there was testimony on behalf of the appellee to the effect that he was familiar with the locality and with the kind of cars run there by the appellant; that there was nothing to obstruct his view of an approaching car if he had looked backwards; that he had looked before he crossed the track from east to west side and saw no. car; that he did not afterwards look back; that at the time of the accident there were no other wagons or vehicles .in the neighborhood; that it was the rear end of the car which struck appellee’s wagon, and that this rear end, in curving, projects, as does the front end, 3% or 4 feet beyond the rails. There was also testimony on his behalf to the effect that no bell was rung or signal given by the motorman of the car to notify the appellee; and that the car had “to go at some rate of speed to make the turn, because the turn is a rather short one.” One witness testified, over objection by the appellant, that the car was rulming, according to his judgment, about 13 or 14 miles an hour.</p> <p>The testimony on behalf of the appellant tended to show that the motorman of the car saw the appellee’s wagon when the car was at N street and the appellee was in the act of crossing the track about midway between N and O streets; that,- as the motorman approached the appellee’s wagon, the -wagon was about 3 or 4 feet from the track; that the car was going not more than 3 miles an hour; that he thought that, as the front end of his car had passed the appellee’s wagon in safety, the rear end would do so also; that he had twice sounded his gong, and that the appellee had paid attention to the gong because he had looked around.</p> <p>Upon this testimony the defendant company moved the court to direct a verdict in its favor, which the court refused; and the case was submitted to the jury under instructions, whereupon the jury returned a verdict for the plaintiff in the sum of *2,200, upon which there was judgment. From this judgment, in pursuance of exceptions duly reserved, the defendant company has appealed to this court.</p> <p>[The trial court granted the following prayers for instruction on behalf of the plaintiff over the objection of the defendant, and the latter excepted:</p> <p>“1. If the jury find from a preponderance of the- evidence that the car of the defendant which struck the plaintiff’s wagon was so constructed that in rounding the curve in the defendant’s track at the place described in the declaration its rear end would project over the track and thereby increase the danger from the car to persons lawfully using the roadway adjacent to the track, and that the defendant’s servant driving the car knew, or in the ' exercise of reasonable care would have known, such to be the case, the jury is instructed that, in operating the car in rounding the curve, the defendant’s servant should have used a degree of care commensurate with such increase of danger, and that if necessary to avoid the same the said servant would have had to use a greater degree of care than if the car had been so constructed that in rounding the curve its rear end would not have projected over the track as aforesaid, then and in that event, it was the duty of the said servant to have used such greater degree of care: Provided, however, that the said servant was not obliged to use greater care than a reasonably prudent man should in the situation have used in operating around the said Curve a car of the sort which the jury shall find from the evidence struck the plaintiff’s wagon.</p> <p>“2. If the jury find from the evidence that on the occasion mentioned in the declaration, the plaintiff, before driving across the defendant’s track, had looked to see whether a car of the defendant was approaching, and found that none was, and thereupon decided to cross the track, and in so doing exercised the judgment and care of a reasonably prudent man under the circumstances, and, further, that after having crossed the track the plaintiff was continuing his journey as a reasonably prudent man would have done, and that while he was so crossing the track and after he had done so, or either, the motorman in charge of the defendant’s car which struck the plaintiff’s wagon saw the plaintiff in the act of so crossing the track or continuing his journey in time to have seasonably warned the plaintiff of the approach of the car, and to have slowed up or stopped the same in time to have prevented it striking the plaintiff’s wagon, or either, and did not exercise ordinary prudence and warn the plaintiff or slow up or stop the car, but ran the same upon and against the plaintiff’s wagon and damaged the same and injured the plaintiff, the plaintiff is entitled to recover in this action.</p> <p>“8. If the jury find from the evidence that before the defendant’s car struck the plaintiff’s wagon the defendant’s motorman saw the wagon and realized the situation in which it was and yet attempted to pass it in the belief that the car would not strike it, the jury is instructed that such belief on the part of the motorman is no defense to this action, unless the jury shall further find from the evidence that the plaintiff and the motorman made a common mistake of judgment in supposing the said wagon to be in a position of safety in respect of its liability to be struck by the car; but in determining whether the plaintiff supposed his wagon to be in such position of safety, the jury should consider what, if any, evidence there is in the case that the plaintiff exercised any judgment or formed any opinion in that regard.</p> <p>“é. If the jury shall find from the evidence that after the plaintiff had crossed the defendant’s track and was continuing his journey, the defendant’s motorman sounded his gong as a warning of danger to the plaintiff, the jury is instructed that the mere fact of the motorman so having sounded his gong is not of itself sufficient to disentitle the plaintiff to recover in this action, but, in order to disentitle the plaintiff to recover on that account, the jury should further find from the evidence that the plaintiff heard or should have heard the said gong and was, in addition, guilty of some negligence in not heeding the warning thereby conveyed; and the jury is'further instructed that even though the motorman in fact sounded his gong as a warning to the plaintiff if he yet saw that the plaintiff did not heed the same he was not justified in taking the risk of passing the plaintiff’s wagon in safety, if a person of ordinary prudence would have regarded it as perilous to do so.</p> <p>Given as modified, modification being showm in italics.</p> <p>“5. If the jury find for the plaintiff it should award him such damages as will fairly but fully compensate him for the physical and mental suffering occasioned by such injuries, if any, as the jury may find him to have sustained as a consequence of the accident complained of in the declaration and in the particulars mentioned therein, and for his loss of time from his business and in his capacity therefor, and the expenses which he necessarily and properly incurred in connection therewith, and in having his wagon repaired, and for medical services, as well as for any permanent injury which the jury may find him to have sustained either in any of his faculties or in his capacity to work at his calling.”</p> <p>Thereafter at the defendant’s request the court granted the following prayers:</p> <p>“2. The ground on which the plaintiff claims to recover against the defendant is negligence on the part of its employees in managing the ear at the time of the accident to plaintiff, and to entitle him to a verdict the burden is upon him to prove by a clear preponderance of the evidence that the accident was occasioned by the negligence of one or more of the employees of the defendant in the management of the car. There is no presumption or inference of negligence on the part of the defendant, arising from the happening of the accident, but it must be provpd by other evidence to the satisfaction of the jury, and if this has not been done the verdict should be for the defendant.</p> <p>“3. The jury are instructed that there is no evidence in this ease from which they could find negligence on the part of the defendant merely because of the kind, construction, or character of the car, or its size, length/or width, or the distance it protruded over the track when going around the curve in question, or in the locality or construction of the tracks or the curve.”</p> <p>“11. If the jury should find that the plaintiff, after crossing the tracks, continued his journey north on the west side of Thirty-fifth street so near the tracks that a passing car would strike him, then he was guilty of negligence contributing to the accident, and the jury should find for the defendant, unless they further find that as the car approached the plaintiff the motorman discovered him in a dangerous position in time to have avoided the accident by the use of ordinary care. And if they find that the motorman sounded the gong in time to enable the plaintiff to do so he had the right to assume that he would leave the tracks so that the car would pass in safety, unless the motorman discovered that he would not do so in time to have avoided the accident by the use of reasonable diligence and care.</p> <p>“12. If the plaintiff knew, or by the use of ordinary care would have known, that the car projected out over the rail more in passing around said curve than it did on a straight track, it was his duty in passing the curve to be more cautious there than elsewhere to keep a safe distance from it.</p> <p>“13. If the jury find for the plaintiff they should allow him only such damages as •'will fairly compensate him for the physical suffering, and mental suffering consequent thereon, occasioned by his injuries, his loss of time from his work or business, and the expenses which he necessarily incurred in repairing his wagon, and for medical attention. And they are further instructed that there is no evidence of permanent injuries, except as to his hearing in one ear, and they shall not allow him anything for that unless they find that he is permanently deaf wholly or partially in his left ear and that it was caused by the accident in question, and the allowance of damages, if any, on this account, should be only in proportion to the degree of deafness, if any.”</p> <p>The court refused to grant the following prayers requested on behalf of the defendant, to the refusal to grant each of which the defendant noted an exception:</p> <p>“6. The jury are instructed that at the place where the accident happened the defendant had a right of way over that part of streets occupied by its tracks, and a place on each side thereof covered by the car, including that part of the street over which the end of the car passed in rounding the curve, superior to that of the plaintiff; and if the jury find that after the plaintiff knew or by the use of reasonable caution would have known that the car was approaching, he had a reasonable time to have moved away from the track far enough to have been in a place of safety by the time the car arrived where he was; and if they further find that when the ear approached the plaintiff’s wagon it was so far from the track that a reasonably prudent man, situated as the motorman then was, might have believed that the car would pass the wagon in safety, and that the said motorman did so believe, then they should find for the defendant.”</p> <p>“7. If the jury find that after the plaintiff crossed the track he continued up 35th street on the west side thereof, so near the track, either below or opposite any part of the curve, as to be struck by the passing car after he had had a reasonable time within which to have reached a place of safety; and if they further find that when the car approached the plaintiff’s wagon it was so far from the track that a reasonably prudent man, situated as the motorman then was, might have believed that the car would have passed the wagon in safety, and that the said motorman did so believe, then they should find for the defendant.”</p> <p>“10. It was the duty of the plaintiff to expect and reasonably look for the approach of a car, not only while he was crossing but after he had crossed the track, and while he was near enough to it to be struck by a passing car, and if the jury find that he failed to do so, then he was guilty of negligence, and if they further find that such negligence caused or contributed to cause the accident, and if they shall also find that when the car approached the plaintiff’s wagon, it ivas so far from the track that a reasonably prudent man, situated as the motorman was, might have believed that the car would pass the wagon in safety, and that the said motorman did so believe, then they should find for the defendant.”</p> <p>“14. The jury are instructed that there is no evidence in this case from which they can find that the car of the defendant company was running at a greater rate of speed than the law allows.”</p> <p>The court granted the folio-wing substitute for the defendant’s sixth, seventh, eighth, and ninth prayers over the objection of the defendant, and exception was reserved:</p> <p>“The jury is instructed that, at the place where the accident to the plaintiff happened, the defendant had a right of way over the part of the street which was occupied by its track, and the space on each side thereof covered by its car, including that part of the street over which the end of the car passed in rounding the curve, and that such right of way was superior to the right of the plaintiff in using the said parts of the street, in the sense and to the extent, how-ever, only that the plaintiff might not unreasonably obstruct the said parts of the street in their use by the defendant and that in going upon or crossing the said parts of the street it was the duty of the plaintiff only to exercise the care of a reasonably prudent man to see to it that he was not so obstructing the said parts of the street, or exposing himself to danger from the defendant’s cars, and, further, upon demand or due warning by the defendant or its servants, to remove from the said parts of the streets wdth reasonable promptness; but even though the plaintiff may have been unreasonably obstructing the said parts of the street or delaying in his passage upon and over the same, such fact of itself would not excuse the defendant’s servant in so negligently operating the' defendant’s car as to cause a collision of it with the plaintiff’s wagon.”</p> <p>The defendant also excepted to the refusal of the court to grant each of the following prayers as requested, and to each of the rulings of the court in granting them as modified. (Modifications are italicized.)</p> <p>“4. If the jury shall find from the evidence that the plaintiff was guilty of negligence contributing to the accident, they -will find for the defendant, although they should find from the evidence that the defendant was also guilty of negligence. Provided, that although the plaintiff may have negligently put himself in a -place of danger, the defendant will yet be liable if the jury shall find further from the evidence that after the plaintiff had so put himself in such place of danger the motorman saw such to be the case and that the plaintiff was not aware of the immediate peril of Ms position, and the defendant’s servant did not then use such means as the evidence may show were within his control to prevent the accident, in that case your verdict should be for the plaintiff.</p> <p>Given as modified.”</p> <p>“5. If the jury find from the evidence that the plaintiff after crossing the tracks continued near enough to them to be struck by a passing car, after he had had time to reach a place of safety, such fact may be taken into consideration by the jury in determining the question. of whether the plaintiff was guilty of negligence contributing to the accident, together with all other evidence and circumstances reflecting on that question.</p> <p>Given as modified.”</p> <p>The foregoing prayer was requested with the following words in place of those italicized: “this would raise a presumption that he was guilty of negligence contributing to the accident.”</p> <p>“8. It was the duty of the plaintiff to have expected and to have looked for the approach of a car, not only while he was crossing but after he had crossed the track, and his failure to do so was negligence, and if it caused or contributed to cause the accident he cannot recover. Except in the instance the court has advised you of in def’t’s prayer number four.</p> <p>Given as modified.”</p> <p>“9. If the jury find that after the plaintiff crossed the track he continued up Thirty-fifth street, on the west side thereof, so near the track, either below* or opposite any part of the curve as to be struck by the passing ear, after he had had a reasonable time within which to reach a place of safety, then the verdict should be for the defendant. Except as in the instance mentioned in defendant’s instruction number four (4).</p> <p>“15. The jury are instructed that they cannot find the defendant guilty of any negligence in this case because the motorman of the car failed to sound his gong, if they should find the facts so to be from the evidence, but such a fact may be considered by the jury in determining the question of negligence.</p> <p>And thereupon the court charged the jury as follows:</p> <p>The Court: “Gentlemen of the jury: The plaintiff, Edward A. Blick, brings his action' against the Metropolitan Bailroad Company, which he avers to be a body corporate, and to be the owner of a certain street railway, the tracks of which are laid down upon and extending along a certain street in the city of Washington known as Thirty-fifth street, northwest, and certain other public streets that are named here in the declaration through which the railway also runs.</p> <p>“It is not necessary for me to mention all of the streets mentioned in the declaration. You have heard them repeated during the progress of the trial several times, and you will take the declaration with you, from which you can learn on your retirement, if you wish to know, where the line of railway extends outside of the locality where this alleged accident, for which this suit was brought, occurred.”</p> <p>(The court thereupon read the declaration.)</p> <p>“To this the defendant has pleaded ‘Not guilty.’</p> <p>“The plaintiff having brought his suit, and having made these allegations in his declaration as to the claim which he makes against the defendant of negligence in the running of the ear, by reason of which negligence he claims an accident occurred— a collision between his wagon and the car — resulting in great injury and loss to him of his property, and of health, and suffering, as he claims, it becomes necessary for him to assume the burden in the trial of the case of proving, by a preponderance of the evidence, the substantial averments of the declaration. He must prove that the defendant was negligent, by a preponderance of the evidence, and he must satisfy your minds that the defendant was negligent in the respects and in the manner set forth in his declaration. There is one thing of which you shall be satisfied, that the plaintiff has, by a preponderance of all the evidence in the case, established the fact of negligence on the part of the defendant, while he has averred that he was in the exercise of due care. In order to avoid the consequences of the negligence which may be so proven to your satisfaction by a preponderance of the evidence, the defendant must show, also by a preponderance of the evidence, that the plaintiff was also negligeni in respect to exercising proper and reasonable care on his own part for his own safety, and to prevent such accident or injury to himself. The plaintiff is not to be presumed to have been negligent. If the defendant, having been proved to have— negligent, by a preponderance of the evidence, seeks to avoid the consequences of that negligence, it is for him to show that the plaintiff was also negligent, and that his negligence contributed directly to the accident and injury which he received. If the jury, having found the defendant to be guilty of negligence, by a preponderance of the evidence, also find from all the evidence that the plaintiff has been negligent in a respect which contributed to the injury of which he complains, in that case, the defendant should be adjudged by you to be not guilty, and your verdict should be for the defendant; notwithstanding the fact that the defendant may have been shown, in your judgment, by a preponderance of the evidence, to have been itself guilty of negligence.</p> <p>“If on your investigation on your retirement you shall find from an examination of all the evidence, and from a careful consideration of it, that the plaintiff has failed to establish by a preponderance of the evidence that the defendant was guilty of negligence, you need go no further, but will find your verdict for the defendant. But, as I have already indicated to you, if you shall find on the contrary, by a preponderance of the evidence, that the defendant was guilty of negligence, it will be necessary for you to inquire further, whether the plaintiff was guilty of negligence also; and in making that inquiry, you will consider all the evidence in the case. If you find that the plaintiff, as well as the defendant, was guilty of negligence, then your verdict should be for the defendant, because the law will not apportion damages where you find that both parties to a suit of this character are culpable and guilty of negligence mutually, with respect to the safety of themselves and with respect to the safety of the other party. The law will not undertake to say: Tart of these damages must be paid by the defendant, and a further part by the plaintiff, because he is also guilty,’ but will say that, both parties being culpable, neither shall recover from the other.</p> <p>“There is, however, a question in this case which requires a. Avord of explanation, perhaps, from the court; and it is a question to which the prayers offered by counsel for the respective-parties relate — or one of them at any rate — and that is: That if you shall find that the defendant Avas guilty of negligence, by a preponderance of the evidence, and shall also be satisfied by a. preponderance of the evidence that the plaintiff was not free-from negligence, and Avas, in fact, negligent Avith regard to his. OAvn safety; yet if you shall find from the evidence in the case-that the plaintiff was in a condition there of peril, where he was. liable to receive an injury, and shall find that he was actually ignorant of that fact, and that before the accident or collision the defendant’s servant saw the perilous condition in which the-plaintiff was; and if you shall find that it was Avithin the power of the defendant’s servant Avhen he discovered the plaintiff’s, perilous condition to have prevented the accident or injury to-the plaintiff, either by giving him a warning or by stopping his. car, if that should be necessary, and the defendant’s servant failed to do this, your verdict will be for the plaintiff. In other Avords, if you find that the plaintiff was in actual peril or apparent peril, and find that the defendant’s servant might have,, either by a warning or by stopping his car or by other means,, have prevented the collision and injury to the plaintiff, notwithstanding that you may believe that the plaintiff was guilty of some negligence in reference to looking out for danger, or in not first assuring himself that he was in a safe position with reference to the tracks of the railroad, and the cars running upon them.</p> <p>“A nmnber of prayers have been submitted to the court for-instruction to the jury, some of which will receive the approval of the court. So far as they go they may be given to you as. the law which is to govern you in your deliberations on retirement, in considering your verdict.</p> <p>“I may say to you now, for fear that I may forget it later, that every question of fact involved in this trial is for the jury to determine, applying the rules of law in relation to your duty and the manner of execution of your duty, as the court may direct you. But so far as the determination of questions of fact is concerned, that is a matter which is strictly within your province. The court has no right to determine any question of fact, nor to direct you as to how you shall find in reference to any question of fact, except to say to you that the law requires you to determine every question of fact by a preponderance of the evidence as in your judgment may seem proper.</p> <p>“The first prayer of the plaintiff is as follows, and is given to you as the law:” .</p> <p>The court then read plaintiff’s prayers numbered 1 and 2, saying:</p> <p>“I would add to prayer number 2, the following:</p> <p>“ ‘If you also find that the plaintiff had no knowledge that the ear was coming upon or against him until the car actually came in collision with his wagon.’ ”</p> <p>The court then read plaintiff’s prayers Nos. 3 and 4, as modified.</p> <p>The court then read defendant’s prayers Nos. 2 and 3, and No. 4 and No. 5 and No. 8, as modified, adding:</p> <p>“That refers to the prayer which I read a moment ago, in which it was stated that if the defendant’s servant saw the plaintiff was in a perilous condition, and that the plaintiff was not aware of that fact, and that the defendant’s servant failed to use all the means within his control and power to prevent the accident, either by stopping his ear or by warning given to the plaintiff to get out of the way, the defendant would be liable for negligence in not stopping his car or taking some steps by which to prevent the accident. In such a case as that the defendant would be liable.”</p> <p>The court then read defendant’s prayers Nos. 9, 11, 12, and 13, and plaintiff’s prayer No. o.</p> <p>Counsel for defendant: “If the court please, there are one or two things to which I wish to call attention. Your honor-instructed the jury, correctly as I understand it, that the burden is upon the defendant to prove contributory negligence of the plaintiff; but in that connection I would, like your honor to say to the jury that in determining that question they have the right to consider not only the evidence that was put in by the defendant, but that they have the right to consider the plaintiff’s own evidence upon that point.”</p> <p>The Court : “Did I not say so ?”</p> <p>Counsel for defendant: “I think not.”</p> <p>Counsel for plaintiff: “Consider it as said.”</p> <p>The Court : “I meant to be so understood. The instruction of the court is this: That you must be satisfied that the plaintiff is guilty of contributory negligence by the examination and consideration of all the evidence, as well that given by the plaintiff as that given by the defendant.”</p> <p>Counsel for defendant: “There is one other point. I am not certain whether your honor intended to charge the jury in this way or not. You did not use this exact language, but your language created the impression in my mind that your charge was to the effect that if the plaintiff was in actual peril, the defendant would be liable if the motorman ran into him, whether a reasonably prudent man would have done it or not. Whether you intended to be so understood or not, I am not quite certain.” The Court: “In giving the instruction which I gave as a qualication of number 4 of your prayers, I intended to give it in this way: That if the plaintiff was in actual peril, and was himself in ignorance of that peril, and the defendant’s servant discovered that he was in peril in time so that he could, by the exercise of the means within his control, have prevented it, then he would be guilty of negligence, if he did not do it.”</p> <p>Counsel for defendant: “With that qualification I think it is correct.”</p> <p>Counsel for defendant then reserved a separate exception to the granting by the court of each of the prayers granted on behalf of the plaintiff, and a separate exception to the refusal to grant each of those on the part of the defendant which were rejected; and an exception also to the giving of those in the modified form that the court did not reject, but modified; and, also, to such portions of the charge as are in conflict with the prayers that I asked for, but which.were rejected. — Reporter.]</p> <p>1. It was error, in the first place, for the court to receive the testimony of appellee’s witness on the subject of the speed of the car under consideration; in the second place, to refuse to strike it out after it became apparent,, on the witness’ cross examination, that he could by no possibility know the speed at which the car was traveling, and, in the third place, to refuse to instruct the jury, as requested by the defendant’s prayer, that there was no evidence in the case from which they could find that the car was running at a greater rate of speed than the law allows. Muster v. Bwy. Co. 61 Wis. 325; Hoppee v. By. Co. 61 Wis. 365; Tully v. Railroad, 134 Mass. 502.</p> <p>2. The evidence was insufficient to submit to the jury upon the ground of the defendant’s negligence, and it clearly showed the plaintiff to have been guilty of contributory negligence.</p> <p>The duties of one driving upon the track of a street railway company are greater than when merely driving along a highway where there are no street railway tracks. Though the railroad company has not an exclusive right of way, it has a “paramount” or “superior” right of way which others must respect, and it is their duty to look out for the approach of a car, and turn out so as not to impede the progress of the cars, which are run for the general benefit of the public. Failure to do this is negligence on the part of the driver of a vehicle which will defeat his recovery, unless the motorman was guilty of wanton recklessness, or, after he saw the position of the vehicle, failed to use reasonable care to avoid the collision. Warner v. Bailway Co. 141 Pa. St. 615; McKelvey v. Twenty-third Street By. 26 Supp. 711; Wilderbrand v. Eighth Ave. B. B. 3 Bosw. 314; Barker v. R. B. 4 Daly, 274; Adolph v. Central Park, etc. B. B. Go. 76 N. Y. 530-5; Hot Springs Street Railway Co. v. Johnson, 3 Am. Neg. E. 323 (Ark. 1897) ; C. W. D. B. W. Co. v. Brek, 69 111. 388; Regan v. 8th Ave. B. R. 15 N. Y. 380-2; Fenton v. 2d Ave. 126 N. Y. 627; Ehriman v. E. R. City Passenger Co. 24 Atl. 596, 17 L. E. A. 448. While the doctrine of “stop, look, and listen,” which is applied to steam railroad crossings, has not been applied with full force to one about to cross the tracks of a street railway, yet, by analogy, it is, to a certain extent, applied by tbe courts. Ehriman v. E.H. City Passenger Co. 17 L. ft. A. 448; Beerman v. Union By. 52 Atl. 1090 (It. I.) ; Traction Co. v. Lusby, 12 P. 0. App. 295. It was not sufficient, as a matter of law, for the plaintiff to look for an approaching car when he was 100 or 150 feet from the place of the accident, but he should still have looked, or used his senses, while driving near the track, and this, from his own testimony, he failed to do. See Hurdle v. Railroad, 8 P. C. App. 120; Harten v. Railroad, 18 P. C. App. 260; Barrett v. Railway, 30 W. L. It. 549; McCee v. Railway Co. 102 Mich. 107 — 112; Wood v. Detroit R. R. 52 Mich. 402, 50 Am. E. 259; Hurley v. West End 8t. Ry. Co. 180 Mass. 370; Thomas v. Passenger Railway, 132 Pa. 504; Warner v. Railway Co. 141 Pa. St. 615; Robe v. 3d, Ave. R. R. 31 N. Y. S. 797, 10 Mise. 740. To the same effect are the decisions in Winter v. Railway, 28 N. Y. Supp. 695; Wilderbrandv. Sth Ave. R. R. 3 Bosw. 314; Barker v. Railroad, 4 Paly, 274. It being the duty of the plaintiff to use his senses — as laid down by the foregoing list of authorities —to discover the approach of a car, his failure to do so, when there is a car approaching, will render him liable for the consequences, the same as though he had used his senses, and had actually seen the car approach. It was held in the cases of Fitz v. Detroit Ry. Co. 62 N. W. 1007, and in Winch v. 3d Ave. Ry. 33 N. Y. S. E. 615, that where the plaintiff, driving on a car track, in turning to cross the track, because of the delay caused thereby, is struck by a car in the rear, which he had not observed, he is guilty of contributory negligence. In the following cases it was held contributory negligence, as a matter of law, for one to attempt to cross a short distance in front of an approaching car. Hurdle v. Railroad Co. 8 App. P. O. 120; Harten v. Brighbwood, Ry. 18 App. P. C. 260; Barrett v. Columbia Ry. 30 W. L. E. 549; Reiss v. Met. By. Co. 58 N. Y. Supp. 1024; Clauncy v. Troy L. Ry. 88 Hun, 496; Lefowiz v. Met. 8t. Ry. 56 N. Y. Supp. 215; Smith v. Electric Traction Qo. IS7 Pa. 110. In the last case the plaintiff was held guilty of contributory negligence where he drove in front of a slowly approaching car, thinking the car would be stopped. See also Beltan v. Baxter, 54 N. Y. 245 — 7; Petri v. Sd Ave. 63 N. Y. Supp. 315.</p> <p>The accident was due wholly to the inattention of the plaintiff, without reasonable excuse therefor, in not keeping far enough away from the track not to be struck by a passing car, when he knew one was liable to pass any moment, and would have heard it had he been listening, even if a gong had not been sounded. Winter v. Crosstown Street Railway, 28 N. Y. Supp. 695; Wilierbrand v. Eighth Ave. 3 Bosw. 314; Barker v. Bail-road, 4 Daly, 274.</p> <p>The negligence, complained of in the declaration, is not sustained by the evidence. It is not negligence to fail to sound a gong, as the case of Barrett v. Columbia B. B. Co. 30 W. L. B. 549, and the line of cases following Bailroad Co. v. Houston, 95 TJ. S. 702, all hold, and it is not proved by the evidence that the motorman failed to do so.</p> <p>If the motorman was negligent in running the rear end of his car into the rear wheel of the defendant’s wagon, thinking that he had space enough to pass without collision, the plaintiff was equally negligent and equally mistaken, if, in fact, he used his senses at all, in that belief.</p> <p>It makes no difference whether the wagon was still or moving. The superior right of way of the railroad company at this point made it the duty of the plaintiff to observe how far he was from the track, and to use his judgment in keeping far enough from it not to be hit. If the plaintiff was justified in taking this risk, and assuming that he was in a safe position, the motorman was equally justified in that assumption. The defendant company can not be held liable, as a matter of law, where there is mutual mistake of the plaintiff and the defendant’s servants. Spaulding v. Jarvis, 32 Hun, 621; McKelvey v. Twenty-third St. By. 26 N. Y. Supp. 711; Patton v. Phila. Traction Co. 132 Pa. St. 76; Atlantic Coast El. By. v. Bennard, 6 Am. Neg. B. 125 — 8; West Chicago St. By. v. Booker, 3 Am. Neg. B. 532.</p> <p>In the following cases it has been held negligence, as a matter of law, on the part of the plaintiff, where he was struck by the side of a car, and injured; though these cases are not where a car was rounding the curve, yet the principle is the same, for the plaintiff himself testified that he knew the cars swung out in rounding the curve, and he should have been held to a greater degree of care on account of that knowledge, commensurate with the increased danger. Suydarn v. Railroad Co. 41 Barb. 375; McQuade v. Met. 81. Ry. 39 N. Y. Supp. 335; Widmer v. West End St. Ry. Co. (Mass.) 32 N. E. 899; Goordow v. Louisville El. Ry. 44 S. W. 972; Nein v. La Crosse City Ry. 92 Fed. 85; South Chicago City Ry. v. Kinnare, 96 111. App. 21.</p> <p>3. It was error to give the plaintiff’s prayer numbered two, and to modify defendant’s prayers four and five. R. & D. R. R. v. Didzonut, 1 App. D. 0. 482; Cullen v. B. & 0. R. R. 8 App. D. C. 69.</p> <p>4. The court erred in refusing to grant the prayer requested by the defendant marked six (6). The first part of the prayer is directly in line with the following decisions: Adolph v. Central Parle R. R. 76 N. Y. 530-5; Hot Springs Ry. Co. v. Johnson (Ark.) 3 Am. Neg. R. 323; Hegan v. 8th Ave. R. R. 15 N. Y. 380; Warner v. Ry. Co. 141 Pa. St. 615; McKelvey v. 23d Si. Ry. 26 N. Y. Supp. 711; Ehriman v. E. H. C. P. Co. 17 L. R. A. 448. The second part of the prayer is in accord with the following decisions: Barrett v. Columbia Railroad, 30 W. L. R. 549; Harten v. R. R. Co. 18 App. D. C. 260; Hurdle v. R. R. 8 App. I). 0. 120; C. W. D. R. W. Co. v. Bret, 69 Iff. 388; McGee v. Railway Co. 102 Mich. 107 — 115; Wood v. Detroit Railroad, 52 Mich. 402; Carson v. F. L. P. & R. Co. 146 Pa. St. 219; Hurley v. West End Railway Co. 180 Mass. 370; Thomas v. Passenger Railway, 132 Pa. St. 504; Warner v. Ry. Co. 141 Pa. St. 615; Bennett v. Detroit, etc., Railway, 7 Am. Neg. R. 633. The third part of the prayer is in accord with the following decisions: Winter v. Railway, 28 N. Y. Supp. 695; Spalding v. Jarvis, 32 Ilun, 621; McKelvey v. 23d St. 26 N. Y. Supp. 711; Patton v. Phila. Traction Co. 132 Pa. St. 76; Atlantic Coast El. Railway v. Rennard, 6 Am. Neg. R. 125; West Chicago St. ’Railway v. Boelcer, 3 Am. Neg. E. 532; Wilderbrand v. 8th Ave. 3 Bosw. 314; Barker v. R. R. 4 Daly, 274.</p> <p>5. The action of the trial court in refusing to grant the fourth prayer of the defendant, and granting it as modified, taken with the refusal to grant the defendant’s prayers marked six and seven, was, in effect, instructing the jury that the railroad company was an insurer of the safety of travelers along its tracks. Pendleton St. R. R. v. Stallman, 22 Ohio St. 1-22; Wright v. 3d Ave. R. R. 5 N. Y. Supp. 707; Moroney v. Brooklyn City Ry. 30 N. Y. St. 911; North Chicago Electric Ry. Co. v. Denser, 190 111. 67.</p>

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

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

Hearing on an appeal by tbe defendants from an order of tbe Supreme Court of tbe District of Columbia overruling a demurrer to a bill in equity for an accounting and for tbe appointment of a receiver, after tbe issuance of a rule to sbow cause on tbe defendants why such relief should not be granted, tbe defendants having failed to make a return to such rule except by such demurrer.

<p>Heajsing on an appeal by the Postmaster-General from a decree of the Supreme Court of the District of Columbia in a suit in equity to enjoin him from refusing to admit the complainant’s publications to the mails as second-class mail matter, granting the injunction prayed for.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This is an appeal from a decree of the Supreme Court of the District, declaring that the complainants, Henry 0. Houghton, Trustee, George H. Mifflin, J. Murray Kay, Lucy H. Valentine, Henry O. Houghton, Oscar K. Houghton, and Albert P. Houghton, under the partnership name of Houghton, Mifflin & Company, are entitled to have their publications, entitled “Riverside Literature Series,” received and transmitted through the mails as matter of tbe second class, and perpetually restraining tbe defendant, tbe Postmaster-General, from enforcing and continuing tbe cancelation of tbe certificate of entry formerly issued to complainants, and from refusing to receive and transmit tbe said publication through tbe mails as mailable matter of the second class.</p> <p>Tbe cause was submitted upon bill, answer, and exhibits, and tbe final decree from which this appeal has been prosecuted was entered March 10, 1903.</p> <p>The bill alleges: That complainants, under tbe partnership name of Houghton,Mifflin & Company, were, on March 17, 1886, and have ever since been, engaged in tbe business of printers and publishers of books and periodicals of tbe Riverside Press in Cambridge, Massachusetts, having their office of publication at 4 Park Row, Boston, which said office was and is well known. That since said date they have been publishing a series of periodical publications known and described as “Riverside Literature Series,” each of which has been regularly issued at stated intervals, as frequently as four times a year, has borne date of issue, has been numbered consecutively, and has been issued from the known office of publication aforesaid. That each and every one of these publications has been formed of printed paper sheets, without board, cloth, leather, or other substantial binding such as distinguish printed books for preservation from periodical publications. That each and every one has been devoted to literature, has had a legitimate list of subscribers, and has not been designed primarily for advertising purposes, or for free circulation, or for circulation at nominal rates, and in respect of publication and issue has complied with all the requirements of the laws relating to mailable matter of the second class.</p> <p>That of these publications already issued, Nos. 1 — 18 were issued weekly to July, 1886; Nos. 19-42, monthly to April, 1889 ; Nos. 43 — 62, quarterly to April, 1894; Nos. 63 — 116, semi-monthly to May, 1897; Nos. 117-143, monthly to May, 1900; Nos. 144 — 151, quarterly to April, 1902. That from March 17, 1886, to the date of filing this bill these publications have been recognized, entered, and admitted by the successive Postmasters-General of the United States as mailable matter of the second class, and have been conveyed at the rates for such matter prescribed under certificates to that effect, the last of which bears date September 15, 1900. (The certificate is attached and is of the regular form of certificate adopted by the Postoffice Department for second-class mail privileges, concluding with these words: “Valid while the character of the publication remains unchanged, or until revoked.”) That on April 4,1902, complainants were served with notice to show cause why their publications aforesaid should not be denied second-class rates of postage, on the ground that they have the characteristics of books, upon a hearing set for April 22.</p> <p>That evidence and argument were submitted at the hearing given on the date aforesaid on behalf of the continuation of the said mailing privilege; that on May 5 complainants were served with notice in writing to the effect that the certificate of admission before mentioned had been canceled, and that thereafter it would be unlawful to print the usual statement of entry as second-class matter, and, further, that their publications when offered for mailing thereafter would have to be prepaid at third-class rates; that subsequently the order of cancelation and denial of second-class privilege was stayed until May 31; that this cancelation and refusal are unlawful, and the exclusion of the aforesaid publications will cause complainants great pecuniary loss and damage both in the advanced rates demanded and in the necessary reorganization of their business for the distribution of the same, which, during the past year, amounted to about 500,-000 copies.</p> <p>That complainants are liable, under existing contracts, to supply upward of 2,000,000 copies of these publications at a price based upon the postage rates chargeable upon them as matter of the second-class. That the action of the Postmaster-General in excluding their publications is a reversal of an unbroken practice of 16 years, and is the destruction of a property right exceeding $5,000 in value. And that complainants are without adequate remedy at law, because if any remedy could be afforded at law it would necessitate a multiplicity of suits.</p> <p>Tie answer of the Postmaster-General, reserving exceptions to-the authority of tbe court to review the exercise of discretion by liim in the matter of investigating and determining the character of the complainant’s publications and the rates of • postage-chargeable thereon, admits the formal allegations of the bill, but. denies that the said “Riverside Literature Series” is a periodical publication within the meaning of the law, and avers that the-several numbers of the same have all the characteristics of, and are, books, and as such are not mailable at second-class rates. The-answer then proceeds to describe the character of the publication as follows:</p> <p>“That said publications have not the characteristics of said', second class of mail matter in that they have no true relation or connection one with another so as to constitute them a periodical within the intent of the law, but each publication, issue, or so-called number is in truth a separate reprint, unaltered and unabridged, of what previously has been published confessedly as= a book or as a part of a book; and defendant further avers that, the complainants have been in the practice, whenever the reprint was of greater volume than usual, of calling such a publication! a double, triple, quadruple, or quintuple number, as the magnitude of the publication might require, and of charging therefor twice, thrice, four, or five times the usual price, as the case-might be.</p> <p>“And the defendant further avers that the said several reprints follow one another quarterly, without order or system, in such manner as to form a wholly disconnected and varied succession of distinct pieces of reading matter in biography, poetry, essays, literary and descriptive, natural history, and mythology; and that the only connection between the successive reprints consists in the mere fact that over the title of the publication or particular reprint are printed the words ‘Riverside Literature Series,’ and that the said reprints are numbered successively;, and the defendant further avers that the complainants .have been in the practice of printing, under the said style of the ‘Riverside Literature Series,’ so-called extra numbers, designated not by numbers, but by letters of the alphabet, which said extra numbers are of tbe same kind and nature and in all respects similar to the periodically published numbers or issues which are numbered successively; all of which will appear by an examination of the copies of such publications filed with the said bill and with this answer as a part hereof (marked Exhibits A, B, C, D, E, and E), as well as by an inspection of the titles of the different numbers as the same are printed upon the cover of each of said copies.</p> <p>“And in further denial of the allegation that said several reprints published ymder the style of the ‘Riverside Literature Series’ constitute a periodical publication within the meaning of the act of kfarch 3, 18'79, the defendant says that the said reprints are sold by the complainants as separate publications complete in themselves, and are designed and used as text-books for the study of literature, and the same are likewise sold at a reduced rate for 10 or more copies of the same publication, and also at a further reduced rate for 100 or more copies of the same publication, and the same publications bound in linen covers, without other or further change, are confessedly sold as books; all of which facts will more at large appear by reference to the printed announcement, catalogue, or advertisement of said series issued by the complainants and annexed to this answer, marked Exhibits G and II, and prayed to be read as a part hereof.”</p> <p>The answer further avers that the revocation of the certificate of admission to the mails was based, not upon any regulation of the Department, but on the sole ground that the publication aforesaid was not admissible to the mails as matter of the second class, because it was not such as defined in the statute making classification of mail matter.</p> <p>Among the exhibits are the following numbers of the “Riverside Literature Series”: Eirst. A complete republication of Henry Esmond, with thick paper cover and linen back. Above the title, with name of author and publishers, appear the words “Riverside Literature Series” in large letters. Near the top of the cover appears the following: “Issued monthly. September to June, No. 140 (Quintuple Number). February 7,1900.” Near the bottom appears list of prices: “Single numbers, 15 cents; double numbers, 30 cents; triple numbers, 45 cents, quadruple numbers, 50 cents; quintuple numbers, 60 cents.” Second. Three Outdoor Papers, by T. W. Higginson, No. 141. Third. Sesame and Lilies, by John Buskin, No. 142. Fourth. Plutarch's Alexander the Great, done into English by Sir Thomas North, No. 143. Fifth. The Bootes of Legends, by Horace E. Scudder, No. 144. All of these, save in title, date, and number, bear the same imprint as Henry Esmond. Other exhibits consist of catalogues of the publishing company, giving titles, prices, etc. Prefatory notes in these announce the purpose of the publishers “to issue in inexpensive form for school use the most interesting and instructive masterpieces of the greatest writers of England and America,” and also inform the public that while each number has been issued in paper covers, many single numbers and many combinations of numbers have been bound in linen covers in response to. a demand for a larger amount of material in a single volume with a more permanent binding. The price list gives the cost of the paper numbers and also the bound volumes. Bound volumes sent at purchaser’s cost; paper backs are postpaid. Many other publications of this series and by other publishers w'ere, by consent of parties, exhibited on the hearing.</p> <p>The sections of the postal laws which have bearing, direct or indirect, upon the subject-matter of the controversy are the following :</p> <p>“Sec. 1. That mailable matter shall be divided into four classes:</p> <p>“First. Written matter.</p> <p>“Second. Periodical publications.</p> <p>“Third. Miscellaneous printed matter.</p> <p>“Fourth. Merchandise.”</p> <p>“Sec. 10. That mailable matter of the second class shall embrace all newspapers and other periodical publications which are issued at stated intervals, and as frequently as four times a year, and are within the conditions named in sections 12 and 14.”</p> <p>“Sec. 12. That matter of the second class may be examined at the office of mailing, and if found to contain matter which is subject to a higher rate of postage such matter shall be charged with postage at the rate to which the inclosed matter is subject;</p> <p>“Provided, That nothing herein contained shall be so construed as to prohibit the insertion in periodicals of advertisements attached permanently to the same.”</p> <p>“Sec. 14. That the conditions upon which a publication shall be admitted to the second class are as follows:</p> <p>“First. It must regularly be issued at stated intervals, as frequently as four times a year, and bear a date of issue and be numbered consecutively.</p> <p>“Second. It must be issued from a known office of publication.</p> <p>“Third. It must be formed of printed paper sheets, without board, cloth, leather, or other substantial binding, such as distinguished printed books for preservation from periodical publications.</p> <p>“Fourth. It must be originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or some special industry, and having a legitimate list of subscribers: Provided, however, That nothing herein contained shall be so construed as to admit to the second-class rate regular publications designed primarily for advertising purposes, or for free circulation, or for circulation at nominal rates.”</p> <p>“Sec. 15. That foreign newspapers and other periodicals of the same general character as those admitted to the second class in the United States may, under the direction of the Postmaster-General, on application of the publishers thereof or their agents, be transmitted through the mails at the same rates as if published in the United States.</p> <p>ü if. if if 'X* if ü if if if</p> <p>“Sec. 17. That mail matter of the third class shall embrace books, transient newspapers and periodicals, circulars, and other matter wholly in print (not included in section 12), proof sheets,corrected proof sheets, and manuscript copy accompanying the same, and postage shall be paid at the rate of 1 cent for each 2 ounces or fractional part thereof and shall fully be prepaid .by postage stamps affixed to said matter.</p> <p>“Printed matter other than books received in the mails from foreign countries under the provisions of postal treaties or conventions shall be free of customs duty, and books which are admitted to the international mails exchanged under the provisions of the Universal Postal Union Convention may, when subject to customs duty, be delivered to addresses in the United States under such regulations for the collection of duties as may be agreed upon by the Secretary of the Treasury and the Postmaster-General.”</p> <p>Section 20 puts in the fourth class all matter not embraced in the first, second, and third classes, with certain limitations upon its character, weight, etc.</p> <p>“Sec. 25. That publications of the second class, one copy to each actual subscriber residing in the county where the same are printed, in whole or in part, and published, shall go free through the mails; but the same shall not be delivered at letter-carrier offices, or distributed by carriers, unless postage is paid thereon at the rate prescribed in section thirteen [6] of this act: Provided, That the rate of postage on newspapers, excepting weeklies, and periodicals not exceeding two ounces in weight, when the same are deposited in a letter-carrier office for delivery by its carriers, shall be uniform at 1 cent each.”</p> <p>1. The doctrine of res adjudícala is not confined to the final judgments of courts, but extends to those of every tribunal, whether boards, commissioners, or departments, charged with the power and duty of hearing and determining matters submitted for their decision. Johnson v. Tousley, 13 Wall. 72; Belcher v. Linn, 24 How. 508; Brown v. Jackson, 7 Wheat. 218; Sanford v. Sanford, 139 U. S. 642. And if tbe Postmaster-General acted in a judicial rather than in a ministerial capacity in determining on May 5, 1902, that these publications did not fall within second-class matter, entitled to pound-rate privileges, then he must have acted in like capacity on September 15, 1900, when he decided that they were in the second-class privileges, and it was not competent for him, any more than it would be for a court, to reverse and annul his previous final judgment. If he is judicial for one purpose he is judicial for all in the same.matter.</p> <p>2. Where Congress has defined and prescribed the characteristics of second-class matter, it is not competent for the Postmaster-General, by his rules and regulations, to repeal, modify in any respect or to any extent the effect of the act of Congress. Act of Congress of March 3,1819, chap. 180, §§ 10,12, and 14; Act of Congress of March 3, 1885 (23 St., 385). Congress not having empowered the Postmaster-General to act judicially as to this classification of mail matter, and the matter to be ascertained in this case having been already ascertained and acted upon by the Department for many years, the duties and powers of the Postmaster-General in 1902 were plainly ministerial, and not judicial; and it is difficult to understand how, when the conditions remained as they had been for many years, he could reverse the conclusion so long settled. See Teal v. Felton, 12 How. 291, 292.</p> <p>3. A long-established, uniform construction by an executive department should not be disregarded where persons have contracted with the government upon the faith of such construction. United States v. Graham, 110 U. S. 219. Prom the 17th of March, 1886, to 5th of May, 1902, a period of sixteen years, the complainants here sent these publications through the mails, after first obtaining a certificate from the Post-office Department that it had been “determined by the Third Assistant Postmaster General to be a publication entitled to admission into the mails at the pound rate of postage, and entry of it as such is accordingly made upon the books of this office.” On the faith of this determination they had made contracts with their subscribers throughout the United States, on terms wbicb were calculated and fixed on tbe “pound rate of postage.” They bad, during this period, largely increased the volume of their publications; had extended the field of their operations and multiplied their contracts, and to that extent had greatly enlarged their obligations. These are yet in binding force and operation, and must be met and fulfilled by them. The question is thus presented here: Has the present Postmaster-General the lawful power and right, by a different and novel construction of the act, to deprive complainants of the right, so acquired, and entail upon them the vast pecuniary loss, which must be consequent upon this capricious change of the law. See United States v. Alabama R. R. Qo. 142 U. S. 621; Teal v. Felton, 12 Iiow. 139. The contract is of the simplest character. The United States say in effect to every citizen: If and when the prescribed rate of postage is paid we will carry and deliver your mail matter for you. The United States thus assumed a contractual obligation, for the breach of which they are answerable in damages, or from the wilful, threatened breach of which they may be restrained by injunction. Inter prise Asstn. v. Zumstein, 37 U. S. Appeals, 71; Moore v. Robins, 96 U. S. 530, 535; Noble v. Union River Logging Railroad, 147 U. S. 170; United States v. Slone, 2 Wallace, 535. The courts will never intervene in cases that are pending in the Departments, awaiting the exercise of their administrative functions, but where those functions have been fully and finally exercised, and rights have been adjudged, then are those Departments functus officio as to such cases, and further remedy must be sought in the courts of equity. Johnson v. Towsley, 13 Wallace, 86.</p>

<p>Heaiiing on an appeal by the Postmaster-General from a decree of the Supreme Court of the District of Columbia awarding an injunction restraining him from excluding a publication of the complainant from entry and transportation in the mails at second elass rates.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia upon tbe verdict of a jury in an action of covenant upon a building contract. The Court in the opinion stated the ease as follows: This case has been in this court on a former appeal taken by the present appellant, Primo Fontano, who was the plaintiff in the court helow. Fontano v. Bobbins, 18 App. D. 0. 402.

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

<p>Hearing on an appeal by the respondent, the Commissioner of Patents, from a judgment of the Supreme Court of the District of Columbia ordering the writ of mandamus to issue against the respondent, directing him to register a label in the Patent Office.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal by the respondents, the Secretary of the Interior and the Commissioner of Indian Affairs, from an order of the Supreme Court of the District of Columbia directing the. writ of mandamus to issue to the respondents.

Hearing on an appeal by the complainant and an intervener from a decree of the Supreme Court of the District of Columbia sustaining a demurrer to, and dismissing, a bill in equity to enjoin the… Held: as will hereafter he shown, and a case can hardly be imagined where the necessity of the doctrine is greater than here.

Hearing on an appeal by the defendants from the judgment of the Supreme Court of the District of Columbia upon the verdict of the jury in an action to recover damages for personal injuries. Held: if unexplained, to indicate the antecedent or coincident existence of negligence as the proximate cause of the injury complained of, and there are instances where the doctrine of res ipsa loquitur is applied.

<p>Hearing on an appeal by tbe defendants from a judgment of tbe Supreme Court of the District of Columbia upon tbe verdict of tbe jury in an action by an administrator to recover damages for tbe alleged negligent killing of bis intestate, an infant.</p>

<p>in error to the Police Court of the District of Columbia.</p> <p>The Court in the opinion stated the ease as follows:</p> <p>The plaintiff in error was prosecuted in the police court of the District upon an information filed on behalf of the District, and by its assistant counsel, charging him with a violation of a municipal ordinance or police regulation which prohibited the propulsion of horseless carriages on the streets of the city of Washington beyond a certain specified rate of speed, under a penalty of not less than $1 and not more than $40 for each offense. He demanded a jury trial as a matter of right, and was refused; and he excepted to the ruling of the court in that regard. The court then proceeded to try the case without a jury,, found the plaintiff in error guilty, and adjudged him to pay a fine of $25, and, in default of payment, to be committed to the workhouse for sixty days. He has been allowed to remove his. case to this court by writ of error.</p> <p>The Code of law of this District provides as follows in regard to prosecutions in the police court:—</p> <p>“Sec. 44. That prosecutions in the police court shall be on information by the proper prosecuting officer. In all prosecutions within the jurisdiction of said court in which, according to the Constitution of the United States, the accused would be entitled to a jury trial, the trial shall be by jury, unless the accused shall in open court expressly waive such trial by jury and request to be tried by the judge, in which case the trial shall be by such judge, and the judgment and sentence shall have the-same force and effect in all respects as if the same had been entered and pronounced upon the verdict of a jury.</p> <p>“In all cases where the accused would not by force of the' Constitution of the United States be entitled to a trial by jury, the trial shall be by the court without a jury, unless in such of said last-named eases wherein the fine or penalty may be $50 or more, or imprisonment as punishment for the offense may b& thirty days or more, the accused shall demand a trial by jury, in which case the trial shall be by jury. In all cases where the said court shall impose a fine, it may, in default of the payment of the fine imposed, commit the defendant for such a term as the court thinks right and proper, not to exceed one year.”</p> <p>The contention of the plaintiff in error is that he was entitled to a trial by jury, — first, on the ground that the offense charged is one which, at common law, would have entitled him to a trial by jury, as well as under the Code itself by a proper construction of its provisions; and secondly, that the provision of the Code which has .been cited is null and void in so far as it prohibits trial by jury in cases where the fine may be as high as $40, and the imprisonment, whether for nonpayment of the fine or otherwise, may be for a period of one year.,</p> <p>1. The offense charged in the information is one which, at common law, would entitle the party to a trial by jury. Not that we contend that there was, at common law, any specific violation of an ordinance like the present one, but there was an offense similar to the one charged in the information for which the party charged could be indicted. At common law driving a carriage through a populous and crowded street in the city at such a rate of speed, or in such a manner, as to endanger the safety of the inhabitants is an indictable offense, and amounts to a breach of the peace, and a constable is authorized, without warrant, to arrest the party. United States v. Hart, 1 Pet. C. C. 390. The offense charged in the information comes within that class of offenses which, at common law, were indictable, and therefore, under the decision of Callan v. Wilson, 121 U. S. 540, entitles the party to a jury trial.</p> <p>2. The offense charged in the information is one which can be punished by an imprisonment for more than thirty days, and therefore, the accused had a right to demand a trial by jury, and the contention on the part of the District of Columbia that the said offense is, in the first place, one not triable by jury at common law, and, in the second place, one where the punishment by fine is not more than $50, or by imprisonment, as punishment for the offense, not more than thirty days, cannot be sustained. In Be Bolfs, 30 Kan. 758.</p> <p>3. The act of Congress gives the court' authority to impose an alternative punishment and one is just as much a punishment as another; and it seems to be unreasonable to say to a person that you can be placed in jail without a jury trial for any period not to exceed a year, not because you have committed any offense, but because you are unable to pay your fine. The question of this alternative sentence, and the effect thereof, were fully considered by this court in the case of United States v. Mills, 11 App. D. C. page 500, where this court held that the alternative sentence was punishment for the crime, and not merely incarceration for the nonpayment of the fine; and, therefore, a person so sentenced could not be released under the poor convicts act. If that be the law, then the party is incarcerated as a punishment for the crime; if not, if he were only detained by reason of the fact that he did not pay the fine, then he could be released after thirty days’ imprisonment. If the contention of the District is correct, we could have two persons, one sentenced, say for a period of forty days as a punishment for the crime, entitled to a jury trial, and another sentenced to a period of eleven months on account of the nonpayment of a fine, not entitled to a jury trial, both serving at the same time; and the only advantage one would have over the other would be that in case the fine was paid he could be released. It is insisted that such a statement shows the absurdity of the contention of the District, and that the true meaning of the act of Congress, if it be constitutional, is that, where an offense is punishable with a fine of not less than $50 or imprisonment not exceeding thirty days, the party is not entitled to a jury trial; but whenever, as a punishment for the offense, the judge of the police court has authority to incarcerate a person convicted before him for a period of more than thirty days, that person is entitled to a jury trial; and it is not a question of wbat tbe judge does in a certain case, but it is a question of what tbe judge may do under tbe law under wbicb tbe defendant is prosecuted, tbat determines whether or not the defendant is entitled to a jury trial.</p> <p>4. The act of Congress is utterly null and void and of no effect in tbat it fails to define tbe offenses wbicb are triable by -jury, and it is unconstitutional, null, and void when it attempts to give a court a right to try a ca.se arbitrarily where there would be inflicted on tbe defendant a fine in any amount up to $50, and a sentence can be imposed on tbe defendant of any period up to thirty days; tbat where such a sentence can be imposed on the defendant, tbat tbe offense is of such dignity tbat tbe Constitution of the United States gives to tbe party charged a right to be tried by a jury. .Art. 7, Amendments to Constitution-Parsons v. Bedford, 3 Pet. 434.</p>

Hearing on an appeal (specially allowed) by one of several defendants to a cross bill, from an order of the Supreme Court of the District of Columbia overruling his demurrer to the cross bill.

Hearing on an appeal (specially allowed) by the defendant from orders of the Supreme Court of the District of Columbia, overruling a plea and a demurrer to a bill in equity filed by the next friend of a lunatic to annul a marriage alleged to have been contracted during his lunacy.

<p>Divorce; Habitual Drunkenness; Costs.</p> <p>1. A decree of the lower court dismissing a bill for divorce (filed before the District of Columbia Code went into effect).by a wife upon the ground of the habitual drunkenness of her husband, affirmed, for the reason that the testimony, although showing occasional instances of intoxication on the part of the husband, and sometimes protracted intoxication, within three years of the filing of the bill, failed- to establish the state of habitual drunkenness required by a statute allowing a divorce “for habitual drunkenness for a period of three, years of the party complained of.” 2. The costs of this court on such appeal were ordered to be taxed against the appellee, the husband.</p>

<p>Hearing! cm am appeal by tbe defendants from a decree of tbe Supreme Court of tbe District of Columbia in a suit to determine the ownership of funds on deposit with tbe Treasurer of tbe United States.</p> <p>Tbe facts are sufficiently stated in tbe opinion.</p>

Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia in a suit to have an equitable lien declared against certain real estate for the value of improvements placed thereon by the complainant.

Hearing on an appeal by tbe complainants from a decree of Lhe Supreme Court of the District of Columbia in a suit to construe a last will and testament. The Court in the opinion stated the case as follows: This bill was filed by William H. and .Tames B. McCaffrey to obtain a construction of the will of Hugh McCafErey, deceased.

<p>Hearing on an appeal by the defendant from a judgment and sentence of the Supreme Court of the District of Columbia upon the verdict of a jury finding him guilty of murder in the first degree.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>1. The Code, in defining the crime of murder in the first degree, sets out, as one of the essential elements, that the person committing it must be of sound memory and discretion. Therefore, an omission to allege this ingredient of the offense is fatal.</p> <p>There is no common-law jurisdiction of crimes in the courts of tire United States. Such is the express holding of the United States Supreme Court. United States v. Eaton, 144 U. S. 677, and cases cited. So that every criminal offense is wholly statutory; and all the authorities agree that, in regard to statutory crimes, all indictments must state all the facts and circumstances which constitute the definition of the offense in the act; and every ingredient of which the offense is composed must be set forth with clearness and certainty; so that the omission of any fact or circumstance necessary to constitute the offense, in an indictment for murder, is necessarily fatal. United States v. Cruilcshanks, 92 U. S. 542; State- v. Yevrill, 54 Me. 408; Commonwealth v. Terry, 114 Mass. 263; Foster v. State, 74 Tenn. 213. And no omission in setting forth all the ingredients of an offense can be supplied by evidence or innuendo. The charge must be made directly, and not inferentially or by way of recital. State v. Henderson, 1 Eicb. L. (S. C.) 179; Pettibone v. United States, 148 U. S. 195. And where a statute inflicts a penalty upon persons of a certain description only, an indictment must aver all the facts necessary to show that the defendant was a person of that description at the time of committing the act. United States v. McCormick, 1 Cranch C. C. 593; State v. Sloan, 67 N. C. 357. See also Foster v. People, 8 Mich 431; State v. Wright, 52 Ind. 307; United States v. Dickey, 1 Morris, 412. Inasmuch as the crime of- murder is, by the Code, divided into three degrees, the indictment must clearly define which degree a defendant is to be tried for, so as to afford him requisite notice thereof.</p> <p>2. A necessary ingredient in the crime of murder in the first degree is premeditation. Of this premeditation the evidence adduced in this case shows no trace. Under the Code of this District, as well as elsewhere, proof of the fact of killing does not raise a presumption of premeditation such as makes the offense murder in the first degree, and the use of a deadly weapon only raises a presumption of malice, and not of premeditation and design. Where the killing has been proved, on a trial for murder, the presumption is that it was done without premeditation, and is murder in the second degree; and, unless this presumption is annulled by the evidence, the jury must acquit the defendant of murder in the first degree. • Stokes v. People, 53 N. Y. 164; State of North Carolina v. Gosnell, 74 Fed. 734; State v. A din, 7 Ohio Dec. 25. Beyond the bare fact of killing, there is no evidence in this case to show premeditation, or to show the motive with which the defendant went to the home of his wife on the fatal evening of the tragedy. If it is a rational act rationally done, it is strong evidence of a strong mind; if it is an irrational act, or done in an irrational manner, it is regarded as evidence of insanity. Anderson v. State, 43 Conn. 672.</p> <p>3. The court below had no right whatever to arrest the argument of counsel to interject an instruction to the jury that “no evidence had been offered even tending to show that the defendant was insane.” What the facts in evidence tended to prove and the weight and sufficiency thereof belonged exclusively to the jury to determine; and counsel had a right to draw the inference of a want of sound memory and discretion from the evidence adduced by the prosecution; that is, to show that the facts in evidence, when considered together, justified that inference. United States v. Davis, 160 U. S. 469.</p> <p>4. The court erred in refusing the prayers of the defendant for instructions to the jury [for prayers, see footnote on p. 404, Reporter] . Prayer No. 3 was declined because the court declared that there was no evidence of good character; whereas, the testimony of James II. Bradford was directly on that point. The correctness of tire prayer in law is amply shown by the authorities : People v. Ashe, 44 Cal. 288; United States v. Gunnell, 5 Mackey, 196; Kistler v. State, 54 Ind. 400; People v. Van Dam, 107 Mich. 425; Stewart v. State, 22 Ohio St. 477; People v. Pollock, 51 Hun (N. Y.) 613. Prayer No. 4 was also summarily dismissed for a like reason. Its correctness in law is likewise well settled. Baker v. State, N. J. Law, 45 ; State v. Northrup, 48 la. 583; Hanney v. Commonwealth, 116 Pa. St. 322; Heine v. Commonwealth, 91 Pa. St. 145. Prayer No. 6, as a definition of insanity, was refused. It is sustained by authority, however. Waters v. Insurance Co. 2 Fed. Rep. 894; Seamen s, etc., v. Hopper, 33 N. Y. 619; Riggs v. Society, 95 N. Y. 503. Prayer No. 8 merely affirms that all the ingredients of a crime must be proved. This the court negatived, although we submit whether it is not strictly correct in law and applicable to the case as herein is previously shown. Prayer No. 9 was declined, although the most solemn confession of one accused of murder in the first degree, even made in open court, is not received, — that is, such a person is not permitted to plead, guilty. To refuse this prayer was manifestly error, although, it is true, there is no actual confession in this case of a premeditated murder, and the source of the so-called confession is, of necessity, very suspicious. Prayer No. 12 surely ought to have been granted, containing, as it does, an elementary principle of law strictly applicable. .</p> <p>5. The record shows the absence of defendant during important proceedings in his case. An accused person is entitled, as a privilege which he himself cannot waive, to be present at every stage of the proceedings against him. The record herein notes his presence in arraignment, in the hearing on the motion to quash the indictment, and the trial; also in proceedings on motion for arrest of judgment and new trial, and on sentence and appeal; but the proceedings on the motion to vacate the judgment occurred wholly in his absence, which was error, such proceedings being of vital interest.</p> <p>6. The court erred in refusing to vacate the judgment on the ground of newly discovered evidence. It is a universal rule of law that a discovery of important evidence justifies and requires a new trial, either in a civil or criminal cause, and especially in a case where the loss of life or liberty is involved. And, in addition to this, there is a special rule of the supreme court of the District, namely, rule 79, page 30, of the rules, requiring this.</p>

<p>Hearing on motions to recall mandates of this court, and to tax costs against the appellees, the Commissioners of the District of Columbia.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal by the relator from an order of the supreme court of the District of Columbia dismissing a petition for the writ of mandamus against the Secretary of War, the Adjutant General, and certain officers of the United States Army.

Hearing on an appeal by the defendants from a decree of the Supreme Court of the District of Columbia in a suit in equity for an injunction to restrain… Held: at the time of the institution of this suit, by Mrs. Alice S. Hill, Charles M. Carter, and, as collateral security, by the First National Bank of Gaithérs- ■ burg. At the time of the making of these two mortgages or deeds of trust the lots embraced therein were entirely bare, without any improvements thereon whatever.

<p>Hearing on an appeal (specially allowed) by one of several defendants from an order of the Supreme Court of the District of Columbia overruling his motion to quash an attachment laid against his property in this District- upon the ground of his non-residence.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>1. The appeal presents several very interesting questions, arising mainly upon the construction of recent legislation, and which it is very important should be correctly settled as prompt ly as possible. The first question obviously is, whether, where an action is brought before a justice of the peace against four persons, three of whom are served with process, and one of whom, being a nonresident, is not served and does not appear, and where the three persons served afterwards file a petition for a writ of certiorari on the ground of concurrent jurisdiction, in which the defendant not served does not unite, the effect of the issuance of the writ would be to remove the case from the justice of the peace as against the defendant who has taken no part in procuring such removal. It would seem that the statement of this proposition is to answer it, because it is respectfully submitted that it would violate every known principle of proper judicial procedure to contend that a person not served, who does not appear, and who takes no part in an application for removal, is in anywise affected by such .removal. If it be true that the case before the justice of the peace has never been removed in so far as Bradford, the appellant, is concerned, then it follows that no writ of attachment could validly issue against his property in the supreme court of the District of Columbia for at least two reasons: (1) Because a justice of the peace has no power, under the provisions of the Code, to issue a writ of attachment which is to be levied on real estate; and (2) because the case not being in the supreme court of the District of Columbia as against Bradford, the filing in that court of affidavits and bond for attachment was wholly inoperative and ineffectual to confer any jurisdiction upon that court to issue a writ of attachment.</p> <p>2. "Without admitting the removal, but insisting that the case remains before the justice of the peace, it is further submitted that, if it could be held that the proceeding had been removed as against Bradford, nevertheless the proceeding, when removed, remains a proceeding before a justice of the peace, subject to all the limitations of the jurisdiction of such justice, as will appear by the language of the Code; and justices of the peace are without authority to issue writs of attachment to be levied on real property.</p> <p>This is apparent from the provisions of § 29, D. C. Code, which provides for docketing judgments of justices of the peace in the supreme court of the District of Columbia, and § 1081, which provides that executions issued by justices of the peace shall not be levied on real estate.</p> <p>3. Even if the foregoing contentions were incorrect, the attachment should have been quashed, because the bond, by its terms, runs to Bradford only, when the settled doctrine is that the bonds should run to all the defendants. Drake on Attachments, § 124; Hadley v. Byars, 58 Ala. 139.</p> <p>1. The writ of certiorari removed the entire record from the justice of the peace, leaving nothing there to be prosecuted. After a certiorari is allowed all subsequent proceedings before the justice of the peace are void. 4 Enc. PI. & Pr. pp. 205, 207, 208; Swing v. Thompson, 43 Pa. St. 372. There remained, then, nothing before the justice of the peace on which he might have proceeded against Bradford or any other defendant. There was but one record, and that was taken from him. It is immaterial that Bradford did not join in the petition for certiorari; for that writ may be obtained by any party to a proceeding, or even by one who is directly and immediately interested, though not a party. Bath Bridge Go. v. Magown, 8 Me. 292; People v. Andrews, 52 N. T. 445; Wilson v. Bartholomew, 45 Mich. 41; Thompson v. School District No. 6, 25 Mich. 483; 4 Enc. PL & Pr. pp. 167, 168. If improperly issued, the remedy is by motion to quash the certiorari, and this course was open to Mr. Bradford, but was not taken.</p> <p>2. The record having been removed into the supreme court for trial on its merits, it became an action at law, pending in that court, for the recovery of a debt, as much as if the original writ had been sued out in that court; and the plaintiff had the right to an attachment against the nonresident Bradford upon complying with the requirements of § 445, Code D. C. It would seem absurd that the supreme court, having jurisdiction to attach laud, should not exercise that jurisdiction in a cause wholly within its control, because a justice of the peace may attach only personalty.</p>

Hearing on an appeal (specially allowed) by the caveators from an order of the Supreme Court of the District of Columbia, sitting as a court of probate authorizing an executor to employ counsel, and directing payment to them of a retaining fee out of the estate. The Court in the opinion stated the case as follows: This cause comes before us on a special appeal allowed by this court from an oider of the probate branch of the supreme court of the District of Columbia.

The plaintiff in error, Virgil At the trial, after the proof of the foregoing facts, which were not, it seems, and are not here, controverted, the plaintiff in error, defendant in the court below,… Held: an unlawful use of the street; Com. v. Mill-man, 13 S. & 17. 403. Millman was a constable who' levied upon certain goods, and held a sale of them in the street under a statute requiring him to make a public sale.

<p>Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia granted on motion of the plaintiff under the 73d rule of that court for want of a</p> <p>sufficient affidavit of defense.</p> <p>The Court in the opinion stated the case as follows:</p> <p>The Pennsylvania Iron Works Company, stated to be a corporation, but under what State or by what law does not appear, instituted suit in the supreme court of the District against the appellant John H. Pinney, as defendant, to recover from him the sum of $561.25, the amount of a promissory note executed by him to a corporation in Chicago, under the laws of the State of Illinois, known as the Siemans & Halske Electric Company, and alleged in the declaration to have been indorsed by this latter company to the plaintiff, to have been duly presented for payment, and to have been dishonored, and yet to remain due and unpaid. The declaration, while stating that the note had been indorsed by the Siemans & Halske Electric Company to the plaintiff, does not in terms show that the note was in fact a negotiable note. The allegation is that the defendant “promised to pay to the Siemans & Halske Electric Company” the amount mentioned; but it fails to state that the note was payable to the order of said company so as to make it negotiable. Annexed to the declaration, however, as “particulars of demand,” was a copy of the note which showed on its face that the note was a promise to pay to the order of the Siemans & Halske Electric Company, and that it was therefore beyond question a negotiable instrument. Indorsed on the note was the indorsement in blank of the “Siemans & Halske Electric Company,” by its treasurer, William H. Black.</p> <p>Annexed to the declaration was an affidavit intended to serve as the foundation for a summary judgment under the 73d rule of the supreme court of the District. In this affidavit it is averred that the plaintiff corporation is a duly incorporated company; that it is the owner of the stock of the Siemans & Halske Electric Company; that the note in suit was a renewal of a previous note given by the defendant to the electric company for materials and work furnished by it to the defendant; that, in order to have this original note discounted in bank, the plaintiff company had guaranteed the payment of it and of all renewals thereof; that the renewal note was, like the original, discounted by a Chicago bank; that it was not paid when due; that it was thereupon taken up by the plaintiff company in accordance with its guaranty; and that it has not been paid.</p> <p>The defendant demurred to the declaration, and assigned various grounds for demurrer. The demurrer was overruled, and the defendant was required to plead. He pleaded the general issue and the statute of limitations, the latter of which was plainly improper and inapplicable; but he filed no affidavit in support of his pleas to controvert the averments of the plaintiff’s affidavit. Thereupon there was motion for judgment on behalf of the plaintiff under the 73d rule for want of such affidavit, and judgment was accordingly entered, from which the defendant has appealed,</p> <p>The 73d rule imposes a duty upon the plaintiff, as well as upon the defendant. It exacts nothing unreasonable from the plaintiff. The plaintiff should have a clear conception of its rights, and should “set out distinctly its cause of action,” when it files its suit. Gerrmdller v. Eoertsch, 2 App. D. C. 310. The plaintiff’s affidavit falls far short of the rule. It fails to support the declaration on the note. The plaintiff declares upon the note as indorsee, while in the affidavit it alleges that it guaranteed the payment of said note to the Chicago National Bank, as an accommodation to the payee, for the purpose of enabling said payee to discount said note at said bank, and that said payee was a corporation, and that the plaintiff at that time owned the stock of the payee corporation, and that when said note fell due and was not paid the same was taken up by the plaintiff in accordance with its said guaranty.</p> <p>2. The court below entered judgment for the plaintiff without requiring it to produce the note sued upon, or even a verified copy thereof. The plaintiff has never produced the note sued upon nor offered any excuse for the nonproduction of the same, and absolutely no proof was offered that it is the owner of said note, nor that said note was in its possession then or at any other time; nor has said note ever been filed with the clerk of the court. It is submitted that without such proof the court could not enter judgment for the plaintiff. Bebree v. Dorr, 9 Wheaton, 564.</p> <p>3. The plaintiff does not make the note described in the declaration nor particulars of demand a part of his affidavit. It is therefore no part of the plaintiff’s proof. It is submitted that the plaintiff must be in actual possession of the note, and must produce the note sued upon at the trial, or time of entering the judgment, in order to entitle it to the presumption that it is the holder and owner of said note. Collins v. Gilbert, 94 U. S. 760; Bmith v. Braine, 16 Ad. & E. (N. S.) 250; Bell v. Bidwell, 13 Mees. & W. 73; Bheehy v. Mandeville, 7 Cranch, 205.</p> <p>4. The note described in the declaration is not a negotiable note, the words “to the order of” being omitted, while in its affidavit it describes the note as “payable to the order of the said Siemans & Halske Company.” There is a material variance between the description of the note sued upon in the declaration and the note described in the affidavit and particulars of demands. Bheehy v. Mandeville, 7 Cranch, 215; Bebree v. Dorr, 9 Wheaton, 558.</p> <p>5. The plaintiff has not shown that the note sued upon bears the genuine signature of the defendant, which is an essential requirement to recover judgment; nor that it has not been paid for taking up said note prior to instituting said suit; nor that it is the owner of said note; nor that said note was presented at maturity, at the place of payment. Covington v. Comstock, 14 Peter, 43.</p> <p>6. The plaintiff avers that it has taken up or paid said note at maturity. It has, therefore, no right of action on the paper itself, but must sue in assumpsit for money due and received. United States v. Bank, 2 Mackey, 298. The note described in the declaration being non-negotiable, and the plaintiff having taken it up after maturity, as it avers in its affidavit, as a guarantor, and it not appearing in the declaration, or affidavit, or particulars of demand that said note was assigned in writing, it is submitted that it must sue upon it, if at all, in the name of the payee, the original assignor.</p>

<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>The plaintiff in error, Edwin Tobin, was the keeper of a licensed barroom in the city of Washington, and was convicted ini the police court upon an information charging him with failing to have his barroom closed on April 5, 1903, the same being Sunday. It appears from the bill of exceptions that Tobin occupied two adjoining houses, in one of -which, No. 450 Louisiana avenue, he had his barroom. The adjoining house he occupied with his family. In the front basement of this house he had but recently erected a billiard table. From this room communication was had with the barroom by a flight of four or five steps and a door. Bach of the billiard room was a small room or hall, and back of that the kitchen used by Tobin. About 9 a. m. on the Sunday mentioned the witness for the prosecution, a policeman, looked through the front windows of the barroom— there being neither blinds nor screens — and saw no person inside. He then entered the second building by the hallway, and finding an open door leading into the small room, between the kitchen and billiard room, passed through to the kitchen. Mrs. Tobin was there and told him that Tobin was in bed. He next entered the billiard room and there saw two men, Peter and J. L. Chaconas, who were standing by the billiard table. The door at the head of the flight of stairs was open. About the same time Tobin came from the saloon room with a bottle of beer in his hand. Beplying to witness’ question, Tobin said he had gotten the beer to drink himself. He stated that he did not know the men were in the billiard room when he got it; that they were not present by his invitation or consent, and had not asked for drink. Tupen this the prosecution rested.</p> <p>The defendant demurred to the sufficiency of the evidence and excepted when overruled. Tobin then testified on his own behalf substantially that he kept the gas burning in his saloon at night, as required by law; that about 9 a. m. on the day charged he came down and went through the billiard room into the barroom to turn out the light and get a bottle of beer for his own use; that there was no person in either room; he had invited no one and expected no one; that neither the barroom nor billiard room was open to the public, and, in fact, had not been opened a.t all by any outside doorway, but only by the doorways connecting them with his kitchen and living rooms; that while he was turning out the lights in the barroom the Chaconas must have come in through the back hall, as they were standing in the billiard room when he came to the steps; that he had not gotten the beer for them or for any one but himself; that the policeman was also present; that the Chaconas were vegetable dealers, who delivered his weekly supplies of vegetables, and stated- that they had called for payment. The two Chaconas — Greeks, who spoke English badly — testified that they had been accustomed to supply vegetables to Tobin from week to week, and that they usually went to his house on Sunday to. collect the week’s account, because they had more time on that day; that they entered by the hall and went to the kitchen; that Mrs. Tobin told them that she did not think Tobin had come down from his bedroom, as she had not seen him; that they waited in the kitchen for ten or fifteen minutes; that seeing the new billiard table .in the front room they went to examine it; that no one invited them to enter; that they did not know Tobin had come down stairs until they saw him coining from the barroom with the bottle of beer in his hand; that they had not asked for beer and did not enter the billiard room for the purpose of getting drinks of any kind; that about the same time the policeman came in.</p> <p>Both these witnesses denied that they had told the policeman that they had come for the weekly order for vegetables, and had gotten it. In rebuttal two policemen stated that one or both of the Chaconas had said that they had come for an order and obtained it. Upon the conclusion a motion to discharge the defendant because of the insufficiency of the evidence was made and overruled, with exception again properly noted. The court then found the defendant guilty and sentenced him to pay a fine of $50. Erom that judgment the writ of error was granted.</p> <p>1. The testimony was undoubtedly sufficient to support a conviction. It will be observed that the defendant and his two witnesses, Chaconas brothers, two Greeks, who spoke English very imperfectly, were discredited. The court did not believe themj and, doubtless, the court was influenced in some measure by their demeanor upon the tvitness stand.</p> <p>In such a case as the one at bar it is sufficient to prove “a course of conduct tending to show” that the accused violated the law in the manner alleged in the information. Lauer v. D. 0. 11 App. D. C. 453. A tippling-house must be closed on the Sabbath day, and if the owner keep it open but for a moment, it is a violation of the statutes. Mouses v. State, 78 Ga. 110; Williams v. State, 100 Ga. 511. And the purpose of its being open is not material. Though the purpose may have been a perfectly innocent and harmless one, that does not lessen the criminality of the act. Klug v. State, 77 Ga. 734; People v. Waldvogel, 49 Mich. 337; People v. Blake, 52 Mich. 566; People v. Talbert, 120 Mich. 480; Hannan v. Dist. of Col. 12 App. D. O. 265.</p> <p>2. It was not incumbent upon the District to prove a sale of liquor on Sunday, to procure a conviction, if the barroom was open within the intendment of the law. While the statute prohibits the sale of intoxicants on Sunday, the keeping open of a place where liquors are sold is an entirely distinct and independent offense. If a liquor-dealer keeps his place of business open on Sunday and then and there sells liquor, he is guilty of two separate and distinct offenses, and may be punished for both. fjehman v. District of Columbia, 19 App. D. C. 217; Sullivan v. District of Columbia, 20 App. D. C. 29; Lauer v. District of Columbia, 11 App. D. C. 453.</p>

Hearing on an appeal (specially allowed) by the defendant from an order of the Supreme Court of the District of Columbia granting a motion to amend a declaration by striking out the name of the nominal plaintiff and substituting that of the administrator of his estate.

HeaRiko on an appeal by tbe plaintiff from a judgment of the Supreme Court of tbe District-of Columbia upon a verdict of a jury directed by tbe court in an action to recover damages for personal injuries.

<p>HbaRIng on cross appeals from a judgment of tbe Supreme ‘Court of the District of Columbia, on the verdict of a jury, in an .action by the United States on the bond of former official.</p> <p>The Court in the opinion stated the case as follows:</p> <p>These are cross-appeals in the same case. On a former appeal, when the case was before us (Ewing v. United States, 3 App. D. C. 353), we reversed a judgment that had then been rendered “in favor of the United States and against the defendants for the whole amount claimed, and directed a new trial. That new trial has now been had; and the jury has rendered the same ver>dict as on the former trial for the whole amount claimed, $9,-•303.70, with interest thereon from January 8, 1889, the day of ■the institution of the suit; and upon this verdict judgment has Ibeen rendered by the court in favor of the United States, not precisely in accordance with the verdict, but for the sum of -810,000, which was the amount of the penalty of the bond upon which the suit was instituted.</p> <p>From this judgment both parties have appealed — the United 'States on account of the remission of the interest, which would make the recovery more than the penalty of the bond; and the ■defendants for alleged errors in the rulings of the trial court at •the trial.</p> <p>The facts in the case differ in some particulars from those “which were testified to at the former trial, as stated in the report fin 3 App. D. O. 353; but the differences do not materially alter the situation of the parties. The facts are in substance these, ;.as far as it seems to be necessary to state them here:</p> <p>On October 23, 1882, the defendant, James M. Ewing, was appointed disbursing agent or disbursing clerk of the Department of Justiee, and as such was required to give bond for the faithful performance of his duties. This bond he gave, under date of November 3, 1882, in the penal sum of $10,000, with Nathan Groff, Jr., and Charles hi. B. Harris as sureties, and thereupon entered upon the performance of his duties and continued therein until May 1, 1888, or thereabouts. On April 30, 1888, the Attorney-General of the United States, in consequence, it would seem, of the failure of Ewing to render a satisfactory account of his trust, instructed two employees of the Department, Frank Strong and J. W. Nightingale, to proceed on the following day, which was May 1, 1888, — we quote the language of the instruction, which was in writing, over the signature of the Attorney-General, — “to take charge of the books, papers, safe, and key of General Ewing, disbursing clerk, and with him make an examination in full of his books and accounts from the beginning of his official term as such disbursing officer, and count the money on hand and examine all vouchers and make a complete statement of his account, showing exactly how he stands in his dealings and transactions in connection with that office;” and to report the result of their investigation to him (the Attorney-General) at as early a day as practicable.</p> <p>The investigation thus ordered, it would seem, was caused by the rejection or questioning of Ewing’s accounts by the Comptroller of the Treasury, and a claim by that officer that he had not accounted for a sum of $9,740.70, afterwards diminished by the recovery of some additional vouchers to the sum of $9,303.70, the amount claimed in the present proceedings to be due from him. In regard to what immediately followed this order of the Attorney-General, the testimony of Ewing, who was a witness at the trial on his own behalf, is not in accord with that of Strong, who testified on behalf of the United States. Nightingale, it may be remarked, who was a witness for the United States at the first trial, died before this second trial. As the occurrences at this time give the ground to the defense upon which its position most earnestly urged is based, it seems to be necessary to give a somewhat detailed statement of them from the record.</p> <p>Ewing testified as follows:</p> <p>“That on the 8th day of May, 1S88, at about 4 o’clock in the afternoon, which was the usual time for the department to close, said Nightingale and Strong came into the office of witness in the department, there being no person in the office at the time except himself; that they walked in between him and the safe, which was open, and informed him that by order of the Attorney-General they had called to take possession of that place, and that the least he said the better, and to get right out; that he went out at once, leaving the safe unlocked and wide open; that it was a combination safe and nobody had the combination except himself; that if it had been locked no one could have opened it except himself, except by force; that a day or two after this occurred witness called at the department to see the Attorney-General, Mr. Garland, but found that he was sick, and that Mr. Jenks was acting as the Attorney-General in his place; that he asked Mr. Jenks for the check stubs that were in the safe, together with some personal memoranda; that Mr. Jenks positively declined to give them to him; that he wanted to check up the stubs to see if any mistakes had been made — to see if there was any truth in the discrepancy they claimed; that he could not get the stubs and had never seen the checks since, and that he had never seen the safe since Nightingale and Strong took possession of it, as above stated, and had not had any opportunity to examine its contents. Being asked how much cash there was in his safe at the time it was so taken possession of, witness said that he had not had a chance to balance it up that day; that he had no doubt there was at least between $6,000 and $7,000 cash in the safe at that time, and that there was always that amount there in the safe in cash to be ready for every emergency.”</p> <p>He further testified that there were vouchers in the safe at the same time for various sums of money which he had advanced to employees of the department on account of salaries and expenses, which would be delivered by him to such employees at the time of the monthly or other settlement; and that he could not give even an approximate estimate of the amount of these vouchers. And he further testified that he was positive that it was on the 8th day of May, 1888, that Strong and Nightingale took possession of his office safe; and that they did not at that time read to him any letter of the Attorney-General.</p> <p>As already stated, Nightingale was dead at the time of the second trial; but Strong was living and testified therein, and his story differs very materiallyfrom that of the defendant Ewing. He stated that, on the afternoon of the day of the order given to him and Nightingale by the Attorney-General, which was April 30, 1888, he and Nightingale called upon Ewing and showed or read to him the order of the Attorney-General; that on the next day (May 1, 1888), he and Nightingale made their examination; that on this last-mentioned day Nightingale asked Ewing for the combination of his safe, and that Ewing handed him a card with the numbers on it, and with that Nightingale opened the safe; that Nightingale acted as spokesman mostly; that Ewing also gave the key to the inside box qf the safe; that after giving the combination Ewing left the office; that he (Strong) and Nightingale then proceeded to read the vouchers and count the money; that there was about $32 in cash in the safe, and vouchers or receipts from clerks and other employees to whom small amounts of money had been advanced, amounting in the aggregate to about $1,667 — the precise amount seems to have been $1,668.51; that these vouchers or receipts were delivered to the persons who had given them when their salaries or accounts were settled in full; that Ewing was nearly every day during this period of examination in a room on an upper floor of the department going over .his accounts with Nightingale; and that he was not denied access to the safe, but could have had such access, if he had so desired.</p> <p>It appears that thereafter for a considerable time the effort went on both in the Department of Justice and by the accounting officers of the Treasury to settle Ewing’s accounts; that he (Ewing) was in frequent communication with the officers of both departments for that purpose, and that, so far as the record before us shows, he was afforded every reasonable facility for the adjustment of the matter. Finally, however, the account was stated by the accounting officers of the Treasury between him and the United States; and the account showed him to be in default to the United States to the amount of $9,303.70. On his failure to make good this amount the present suit was instituted by the United States against him and the two sureties on his bond on January 8, 1889.</p> <p>Trial was had, which resulted in a verdict and judgment for the United States for the whole amount claimed, with interest. For the reason stated in 3 App. D. C. 353, this judgment on appeal was reversed by this court and a new trial ordered. This new trial has now been had, but only as between the United States on the one side, and Ewing and one surety, Nathan Goff, Jr., on the other side. The other surety, Harris, had died before this second trial, and there was a discontinuance of the suit as to him. The result of the suit is another verdict for the United States against both of the defendants for the whole amount claimed, $9,303.70, with interest thereon from January 8, 1889, the date of the institution of the suit.</p> <p>Motions for a new trial and in arrest of judgment were filed on behalf of the defendants; and on behalf of the United States there was a motion to enter judgment in accordance with the verdict. All these motions were overruled; and judgment was, entered for the sum of $10,000, the amount of the penalty of the bond, and without interest.</p> <p>From this judgment the defendant Goff appealed. No appeal was entered of record for the defendant Ewing; and there was no summons and severance as to him on the part of Goff. Consequently there was a motion made in this court to dismiss the appeal of Goff. There was also a counter motion on the part of Goff, in which Ewing joined, for leave to amend the appeal by joining Ewing therein. Upon a showing by Goff and Ewing that the appeal of Ewing had been taken in open court, although, not noted and not entered of record with or by the clerk, through an oversight of Ewing’s attorney, the appeal was allowed to be amended so as to include both Goff and Ewing therein, and the motion of the United States to dismiss the appeal was denied.</p> <p>The United States themselves appealed from so much of the judgment as refused to allow interest on the demand in excess of the penalty of the bond.</p> <p>[On the trial the plaintiff requested the court to give to the jury the following instruction:—</p> <p>“According to the tenor of the bond offered in evidence, the defendant, James M. Ewing, and his sureties, the defendant Nathan Goff, Jr. and Charles M. B. Harris, now deceased, became liable thereon to the plaintiff if the said Ewing did not faithfully keep safely, and disburse and pay out according to law, all sums of public money placed or coming into his hands from time to time; and the jury are instructed that the Treasury transcript offered in evidence by the plaintiff, until the same is overcome by proof, shows the balance of public money which was placed or came into the hands of said Ewing which he has failed to disburse and pay out according to law; and, in the absence of evidence to the contrary, that is the amount due by him to the plaintiff; and for that amount he and the said Goff are liable in this action, and the plaintiff is entitled to the verdict of the jury against the said defendants, James M. Ewing and Nathan Goff, Jr. for $9,303.70, the amount of said balance, with interest thereon from the 8th day of January, 1889.”</p> <p>The court refused to grant the instruction as prayed, and granted it after adding to it the following proviso:</p> <p>“Provided, however, if you shall further find that the defendant Ewing left in the safe when the same was taken in charge by the plaintiff’s agents, as mentioned in evidence, cash and vouchers for which credit has not been given by the plaintiff in its said accounts, then you shall allow the said defendants for such sum or sums inclusive of any vouchers as you shall find from the evidence were in said safe at the time the same was so taken in charge by the plaintiff’s agents; but the burden of proof is upon the-defendants in this cause to show by a fair preponderance of the evidence that said defendant Ewing has not been allowed in said accounts the amounts so claimed by him to have been in said safe at the time the same was taken in charge by the said plaintiff’s agents.”</p> <p>Counsel for the defendants objected to the prayer as asked and objected to the proviso, and also objected to the granting of the prayer as modified by the proviso, but the court overruled all the objections and gave to the jury the instruction as modified, to which ruling and action of the court the defendants duly excepted.</p> <p>Thereupon counsel for the defendants requested the court to give to the jury each of the following six instructions:—</p> <p>“1. The jury are instructed that in order to entitle the plaintiff to a verdict in this case, it is incumbent upon the plaintiff to satisfy the jury by a fair preponderance of the evidence that the defendant, James M. Ewing, as disbursing officer of the Department of Justice, received by authority of his assignment to duty as such disbursing officer divers large sums of the public moneys, amounting in the aggregate to the sum of one million dollars.</p> <p>“2. The jury are instructed that the burden of proof is upon the plaintiff to satisfy the jury by a fair preponderance of the evidence that the amount claimed in the declaration in this case, or some definite part thereof, was due from the defendant Ewing to the plaintiff when the declaration in this case was filed on the 8th day of January, 1889.</p> <p>“3. The jury are instructed that even if the evidence in this case satisfies them that at the time this action was instituted there was a sum of money due from the defendant Ewing to the United States, but does not show with reasonable certainty what that amount was, their verdict should be for the defendants.</p> <p>“4. The jury are instructed' that the transcript which has been admitted in evidence is only prima facie evidence of the indebtedness of the defendant Ewing to the United States which it purports to establish, and if upon the whole evidence the plaintiff has not established by a fair preponderance of the evidence that said indebtedness, or some definite part thereof, actually existed at the time this action was brought, their verdict should be for the defendants.</p> <p>“5. The jury are instructed that if they find from the evietence that the defendant Ewing was removed from his position as disbursing officer by the Attorney-General on or about the-8th day of May, 1888; that at the same time, by direction of the Attorney-General, officers of the Department of Justice-took possession of the office of said defendant Ewing and of the-safe in said office in the Department of Justice and the contents-of said safe in said department; that among such contents so-taken possession of were money held by said Ewing, as such disbursing officer, and vouchers representing proper disbursements, by said Ewing of cash which, as disbursing officer, he had theretofore had in such safe; that the contents of the safe were thereupon removed by such officers in the absence of said Ewing and without affording him any opportunity to be present; then the-jury are further instructed that it is incumbent upon the plaintiff' in this case to satisfy the jury by a fair preponderance of the evidence that the defendant Ewing in the settlement of his accounts-by the accounting officers of the Treasury Department received, credit for all such money remaining in said safe when said Ewing was so removed and for the amounts represented by such vouchers; and unless the jury are satisfied by a fair preponderance erf the evidence that such credit has been given, their verdict. should be for the defendants.</p> <p>“6. The jury are instructed that the entry in the transcriptin evidence relating to the alleged deposit to the credit of the-: defendant Ewing as disbursing officer by a person named Nightingale is not competent evidence for the consideration of the-jury as-to the amount that was so deposited by said Nightingale,, or as to the amount of money that was in the safe of the defendant Ewing when it was taken possession of by officers of the Department of Justice, at the time of his removal.”</p> <p>The court granted the second of said instructions, but refused’, to give to the jury the others, numbered respectively 1, 3, 4, 5,. and 6. To the refusal of the court to grant each of said instructions numbered 1, 3, 4, 5, and 6 separate and several exceptions were taken by the defendants. — Reporter.]</p> <p>1. The transcript was not competent evidence because ifc shows on its face that it is not a complete but a fragmentary statement of Ewing’s account. TJ. 8. v. Walter Jones, 8 Peters, 375, cited with approval by the Supreme Court of the United States in Hoyt v. TJ. 8. 10 How. 133; Bruce v. TJ. 8. 17 How. 437; TJ. 8. v. Gaussen, 19 Wall. 198; U. 8. v. Pinson, 102 U. S. 548; Moses v. TJ. 8. 166 U. S. 571-598. Erom these cases it will be seen that the Supreme Court of the United States, ever since the case of TJ. 8. v. Jones, 8 Peters, 375, has consistently held that the “transcript from the books and proceedings of'the Treasury Department” referred to in the statutes governing this subject means a statement of the whole account.</p> <p>In a suit between individuals on an open account, no one would think of offering in evidence a part of the account and suppressing the rest. It must be supposed that Congress intended that the transcript which was to be made evidence was a complete and not a partial statement — not complete in the sense •of setting out every detail of the money transactions involved, but in the sense of including them all in some form.</p> <p>That this transcript presents only parts of Ewing’s transactions as disbursing officer there can be no doubt. The appropriations for the Department of Justice for the fiscal years ending from July 30, 1883, to July 30, 1889, covering the entire period of Ewing’s service as disbursing clerk, will be found in 22 Stat. 253, 254, 268, 334, 335, 336, 562, 586, 629, 630, 631; 23 Stat. 192, 193, 248, 249, 256, 261, 424, 466, 510, 511; 24 Stat. 207, 208, 251, 254, 273, 540, 541, 630, 631; 25 Stat. 14, 15, 28, 56, 57, 160, 293, 294, 543, 544.</p> <p>In each year, of course, there is an appropriation for the salaries of the Attorney-General and his subordinates and clerks; yet the only reference in Exhibits A, C, and D to this appropriation is the first item in each of them: “Salaries Départment of Justice, 1886, «$212.38.”</p> <p>Comparatively few of the numerous appropriations for any of the fiscal years in question figure in these exhibits at all. Thus for the year 1883 (which means the fiscal year ending June 30, 1883) but four appropriations are referred to — repairs to courthouse, Washington, D. C., $6.72 (a credit item) ; constructing elevator and repairing and furnishing building, Department of Justice, 1883 to 1884, $6.03; support of convicts, 1883, $616.99; support of prisoners, United States courts, 1883, $1,116.54; miscellaneous expenses, 1883, $3,605.30.</p> <p>This appropriation for miscellaneous expenses figures in only three years — 1882, 1883, and 1884. As the fiscal year 1882 ended on June 30, 1882, more than four months before Ewing became disbursing officer, it is not apparent why an appropriation for that year should enter in this account at all, and the transcript gives no explanation.</p> <p>The appropriation which figures most frequently in these exhibits is that for contingent expenses for Department of Justice, items relating to which for the fiscal years 1884, 1885, 1886, 1887, and 1888 will be found in Exhibit A. Why the fiscal year 1883 is omitted is not explained. Exhibit A contains seventeen separate items relating to this appropriation for contingent expenses, Department of Justice, while each of the Exhibits C and D contains only four such items. Yet the heading of each of these exhibits is the same — “Balance on account of James M. Ewing, late disbursing clerk, Department of Justice, as shown by the book of the register of the Treasurer this date.” Exhibits A and C have the same date, September 1, 1888, while Exhibit D is dated April 12, 1893.</p> <p>Without pursuing this matter further, it is indisputable that these statements do not contain one item in ten, and perhaps not one item in a hundred, of Ewing’s accounts as disbursing clerk. The replication of the United States, in which for the first time was set forth the alleged breach of the condition of the bond in suit, charges that E-wing during his term of office received from the government “divers large sums of the public moneys, amounting in the aggregate to one million dollars of said moneys.” It is for the alleged balance due on account of these transactions involving a million dollars that the government seeks to recover $9,303.70. These exhibits, even when taking into consideration that they set forth only alleged balances due, account for but a small proportion of the whole amount of money which Ewing received, and necessarily there are omitted also hundreds of credit items. Indeed, in the making up of this transcript the accounting officers have not pretended to furnish a complete statement of Ewing’s accounts. They have segregated here and there particular appropriations for particular years, as to most of which they show that he is debtor to the government and as to a few of them they show that he is a creditor. Where the balance would be if the omitted items on each side of the account were set forth, it is impossible to say. The case squarely presents the question whether in the trial of cases of this kind the transcript which the government always relies upon shall be made up in accordance with the obvious meaning of the statute governing the subject, and with the repeated decisions of the Supreme Court of the United States, or shall conform only to the view which the accounting officers seek to establish for the convenience of themselves and their clerks.</p> <p>2. The transcript was inadmissible, because on its face it appears to be made up in part of items which could not be within the personal knowledge of the accounting officers, and which did not relate to the ordinary transactions of the Treasury Department. U. 8. v. Buford, 3 Peters, 12-28; Hoyt v. U. 8. 10 Howard, 109-132.</p> <p>3. The Treasury transcript was inadmissible because it is unintelligible. Ewing v. U. 8. 3 App. D. C. 353; U. 8. v. Gaussen, 19 Wall. 198.</p> <p>4. Even if such a transcript was technically competent evidence, the jury could not properly be compelled to find a verdict based upon it, even in the absence of evidence to meet it. Both in the instruction requested by counsel for the United States as modified by the court, and in the general charge to the jury, the jury were told that this transcript entitled the plaintiff to a verdict in the sum of $9,303.70, with interest, unless its effect was overcome by evidence submitted on behalf of the defendants.</p> <p>Everything that has been urged above against the admissibility of this transcript is now reiterated in support of the second and third assignments of error. The decisions of the Supreme Court of the United States, relied upon by counsel for the United States to sustain the ruling of the trial court in this ease now under consideration, hold only that where the transcript contains a full statement of the officer’s account and is properly made up it makes out a prima facie case for the government. There is no case which holds that putting in evidence such a garbled and confused set of statements as compose the transcript offered in this case fulfils the requirement of § 886 and requires the court to “grant judgment” upon it.</p> <p>5. The transcript was not competent evidence as to the amount of money that was in the safe of the defendant Ewing when he was removed, or even as to the amount of money that Nightingale deposited in the Treasury. The only evidence in the case as to the cash that was left in the safe when Ewing was-turned out of his office was his own statement that' there was always between $6,000 and $7,000 in cash in the safe, and that of the government’s witness Strong on the same subject, which, it was claimed tended to show “that the cash and collected touchers” amounted to $1,667. Strong’s evidence on this subject, however, was rendered valueless, beeaúse, on cross-examination, he admitted that it was Nightingale who counted the money. Nightingale died in 1897. No statement or report signed by him was offered in evidence or produced, yet the court, refused to instruct the jury that the mere entry of a memorandum on the transcript indicating, but not plainly stating, that Nightingale had deposited to the credit of Ewing on the 16tb day of June, 1888, the sum of $1,668.51 was not competent evidence against the defendants as to the amount of money that was in the safe when Nightingale took possession of it.</p> <p>If testimony had been offered tending to show that Nightingale had told the accounting officers that he found in the safe-only a certain amount of money, or even if he had written them a letter to that effect, evidence of such a statement or the writing of such a letter would clearly be incompetent as hearsay.; yet the trial court has ruled in this case that the fact that Nightingale deposited a certain sum of money to the credit of Ewing: is competent evidence that that was the amount of money he found in the safe.</p> <p>6. The court below held that on the testimony in the case it; •was for the jury to say whether in the Treasury transcript Ewing was given credit for all the cash and vouchers which were in the safe when he was turned out of his office. The only question that arose in this part of the case was as to whether it was incumbent upon the defendants to satisfy the jury by a fair preponderance of the evidence that credit had heen given Ewing in the transcript for all the cash and vouchers which he left in the safe, or whether it was upon the government to satisfy the jury that full credit in that regard had been given Ewing in his accounts. On this point the court ruled against the defendants.</p> <p>The question presented by these assignments of error is substantially this: A principal employs an agent and places in the hands of the agent money of the principal, which the agent is authorized and required to expend from time to time in the performance of the duties of the agency. Without notice or warning, the principal, through another representative carrying out his instructions, removes the agent and takes possession of the office, papers, vouchers, and cash of the agency. The agent is ordered out of the office, and no opportunity is afforded him to ascertain what money, papers, or vouchers have so passed from his custody into the hands of his principal. The principal sues the agent, alleging that he had received money in excess of what he had properly expended, and that while some vouchers and some cash had been taken possession of by the representative of the principal when the agent was removed and ejected, that did not make up the entire deficiency. The agent denies the indebtedness and the case comes to trial. It then appears that the person who counted the cash is dead, and the principal has no evidence on that subject, except that a month after the removal of the agent the deceased witness had paid over a certain amount to the principal to be applied to the credit of the agent. It appears further that a list of the agent’s vouchers had been made by the deceased witness at the time they were taken possession of, but that the list and all the agent’s checks and check stubs and other papers had been lost by the principal between the time he had caused them to be taken possession of and the date of the trial. The agent testifies that all the money which he did not expend in the performance of his duties was represented by cash and vouchers in his safe when the principal took charge of it, but that ho cannot remember how much of it was in cash or how much of it was in vouchers, or what the vouchers were.</p> <p>We respectfully submit that a mere statement of the case leads irresistibly to the conclusion that under such circumstances it would be the duty of the principal to show in the first instance that he has given his agent credit for the money and vouchers that he caused to be taken from him, and that if, by reason of the death of a witness and the loss of papers by the principal, it has become impossible to show what that amount was, the principal must bear the loss and not the agent.</p> <p>On this subject counsel for the United States at the trial relied upon a series of cases in the Supreme Court which were reviewed and affirmed in a case decided by that court at its last term— Smythe v. U. S. 188 ü. S. 156. Those cases hold that a disbursing officer of the government is liable for funds of which he has been deprived by theft, or robbery, or fire, without any fault on his part, and that in general he is liable for money or property received by him in his official capacity, unless he has been deprived of it by the act of God or a public enemy. But manifestly these decisions do not touch the question which is involved in the present case. They all relate to a loss sustained by the officer through the acts of third persons. Here the money which was unaccounted for was money which was taken from the officer by the government itself. It was the Attorney-General who detailed Ewing to act as disbursing officer, and it was the Attorney-General who removed him. In doing this he was acting for and in behalf of the President. Williams v. U. S. 1 How. 298; Wilcox v. Jackson, 13 Pet. 513; Iiegler v. Faulkner, 153 U. S. 117.</p> <p>A few days after Ewing’s enforced resignation his successor was appointed and took possession of the same room and of the same safe which Ewing as disbursing officer had occupied and used. There was no proof and no offer of evidence showing what, if any, part of the assets in Ewing’s safe went into the 'i ands of his successor.</p> <p>The ruling of the trial court as to the effect of the transcript and the burden of proof had the effect of requiring Ewing’s surety to do what was impossible, while at the same time they enabled the United States, by losing or keeping back evidence, to obtain a verdict without making any showing at all to the jury on the real point in controversy.</p> <p>7. The court below erred in giving the jury the absolute instruction that if they found for the plaintiff they should allow it interest from the 8th day of January, 1889 — the date of the filing of the declaration in the ease. There can be no question that by the common law in cases of this class interest was not to be allowed by the jury as a matter of right, but at the most might be included in their verdict in their discretion. De Havilland v. Bowerbank, 1 Camp. 50; Page v. Newman, 9 B. & 0. 378; Poster v. Weston, 6 Bing. 709. It seems to have been the law in Maryland always that interest could not be claimed as a matter of right, unless there was an express promise to pay it or a course of business between the parties from which such a promise must be implied, and that, at most, the allowance of interest was discretionary with the jury. Richardson v. State, 2 Gill, 439; Karthaus v. Owings, 2 G. & J. 430; Newson v. Douglass, 7 H. & J. 417; Baltimore City, &c. R. Co. v. Sewell, 37 Md. 443 ; Curtis v. Gibney, 59 Md. 131 — 156; Kirk v. Grant, 67 Md. 418. That this was the law of Maryland, and that by virtue of § 1 of the act of Congress of February 27,1801, 2 Stat. 103, it became the law of the District of Columbia, is expressly stated by the Supreme Court of the United States in W. & G. R. Co. v. Harmon, 147 U. S. 571 — 585.</p> <p>There is little to be found on this point in the law reports of this District, for the reason doubtless that the law on the subject was settled from the beginuing, and there was no occasion for judicial determination in regard to it. See, however, Killingly v. Taylor, 1 Cr. C. C. (1802); Hartman v. Ruby, 16 App. D. C. 45-56; Manogue v. Kearney, 19 App. D. O. 448, in which, it would seem the Maryland rule is followed. If Ave are to look at the decisions of the courts in this country elsewhere than in Maryland and the District of Columbia as to the law bearing upon the subject of the allowance of interest, wo find an extraordinary variety of conclusions. See 16 A. and Eng. Ency. of Law (2d ed.), page 992; White v. Miller, 78 N. Y. 393, 394-400. Other leading eases which hold that even in actions based on contract where the payment of interest is not a part of the contract, if allowed at all, it is allowed only at the discretion of the jury, are the following: Shipman v. State, 44 Wisconsin, 458 — 462; Schamberg v. A.uxier, 101 Ky. 294; Henderson v. Machine Shops, 86 Ky. 675; Coburn v. Goodall, 72 Oal. 498-509; Smith v. Ydie, 60 N. Y. 106-111; ■Flake v. Carson, 33 111. 518; Close v. Fields, 13 Tex. 623; Tyson v. Sander-son, 45 Ala. 364 — 369; Newell v. Griswold, 6 Johns, 45.</p> <p>8. As to the appeal of the United States involving the question whether in any event the judgment on a penal bond in this District can exceed the penalty of the bond, there is no question at this date that by the common law of England, in a suit on a penal bond the obligors cannot be required to pay more than the-penalty of-the bond. Chronologically arranged, the English decisions so holding are as follows: Davis v. Curtis, 1 Chan. Cas. 226 (1674) ; Jevon v. Bush, 1 Vernon, 342 (1685) ; Stewart v. Rumbdll, 2 Vernon, 509 (1705) ; Bromley v. Goodere, 1 Atk. 75 (1743) ; Grosvenor v. Cook, 1 Dickens, 305 (1757); Gibson v. Egerton, 1 Dickens, 408 (1769) ; Knight v. McLean, 1 Dickens, 516 (1775) ; Tew v. Earl of Winierton, 3 Brown Chancery, 489 (1792), per Lord Thurlow; Wilde v. Clark-son, 6 T. B. 303 (1794), per Lord Kenyon; Clarke v. Seton, 6 Vesey, Jr. 411-414 (1801) ; Hefford v. Alger, 1 Taunt. 218-220 (1808), per Lord Mansfield; Dandridge v. Corden, 3 O. & P. 12 (1827), per Lord Tenterden; Hughes v. Wynne, 1 Mylne & Keen, 21-25 (1832) ; Walters v. Meredith, 3 Y. &. C. 264 (1838). See also Wilmer v. Harris, 5 II. & J. 1; State v. Way-, man, 2 Gr. & J. 254-278-279; Ing v.-State, 8 Md. 287-293-295; Maulsby v. Tdbler; 41 Md. 236; Qott v. Stake, 44 Md. 337; Mayor of Baltimore v. Williams, 6 Md. 235 — 238—265; Koontz v. Nabb, 16 Md. 549-555; Ckeemoood v. Greenwood, 28 Md. 369; see also Cathcart v. Robinson, 5 Peters, 280; Farrar v. United States, 5 Peters, 375-385; Lawrence v. United -States, 2 McLean, 581; Bank v. Magill, 1 Paine, 661 — 669 ; United States v. Cutter, 2 Curtis, 617 — 629. Fraser v. Little, 13 Mich. 195, will be found a very strong opinion in favor of the rule limiting judgments against sureties on penal bonds to the amount of the penalty, and prohibiting the allowance of interest when such an .•allowance will result in a judgment greater than the penalty. .Another instructive case to the same effect is Freeman v. People, ■Sé 111. 153, 154. Other leading cases adopting the same rule are .Bonsall v. Taylor, 1 McCord, 503; Farrar v. Christy’s Adm’rs. 3é Mo. 474; Showles v. Freeman, 81 Mo. 540, 544; Iihea v. Mc-■Corkle, 11 Heisk. 415, and Tyson v. Sanderson, 45 Alabama, 364 — 369; Backus v. Ins. Co. 4 Ohio, Decisions, reprint, 518. See also Clark v. Bush, 3 Cowen, 151 — 158; Lyon v. Clark, 8 N. Y. 148 — 153; Brainard v. Jones, 18 N. Y. 35 — 36—37; Beers v. .Shannon, 73 N. Y. 302; Polhemus Printing Company v. Hallenbeck, 46 App. Div. 563; Sachs v. American Surety Company, 72 App. Div. 60 — 66.</p> <p>The result is that after many years of conflicting decisions the legislature of New York has brought the law of that State back -to the precise point where we find that it had already been established in the Federal courts by the decisions of the Supreme Court in the case of Farrar v. United States, 5 Peters, 373 — 385, .and in Ives v. Merchants National Bank,. 12 Howard, 159.</p> <p>There is an apparent conflict of authority as to the right •of the obligee in a penal bond to recover interest beyond the penalty. The text books state the doctrine to be that interest in •certain cases may be recovered against the surety in excess of the penalty of the bond. The weight of authority in the United States, as well as the reason therefor, sustains the doctrine that "there may be such recovery. 2 Greenlf. Evid. § 263, and cases cited; Murfree on Official Bonds, par. 689; Throop on Public Cfficers, § 294; 16th Am. and Eng. Enc. of Law (2d ed.), 1009. The list of cases cited in the last book by no means exhausts the authorities. The only ease from a Federal court there mentioned is Arnold v. U. 8. 9 Or. 104. The additional Federal cases are: U. 8. v. Arnold, 1st Gall. 360; U. 8. v. Gurney, 4th Or. 333; U. 8. v. Hills, 4th Cliff, 618; Bank of U. 8. v. McGill, 1st Paine 661, (affirmed, 12th Wheat. 514); Blewiii v. Cable By. Co. 51 Fed. Pep. 625 — 628; U. 8. v. Meeker, 26 Fed. Cases, 1234; Peril v. Wallace, 2 Dali. 252 (1 Co-op. 370). A valuable discussion of the question whether the liability of the surety is limited to the amount of the penalty of the bond is found in a note to Griffith, v. Bundle (55 Lawyers’ Deports, Annotated, 381), where the matter is treated historically, and an attempt is made to classify the conflicting cases. The annotator states (382) that the early rule, however, still followed to some extent in England, has very little support in this country, and the practice in most jurisdictions has been done away with of talcing a judgment in form for the penalty and issuing execution for actual damages.</p> <p>The reasons for the modern rule allowing interest are shown from the authorities cited (384, et seq.) to be that the interest is recoverable as damages for the detention of the debt, the whole amount of the penalty being then a debt demandable of the sureties; that the penalty of the bond covers the misconduct of the principal, while the interest allowed on the penalty is for 1he misconduct of the sureties for the delay in payment; that if the obligee gets the amount of the penalty when it is due he gets all the contract provides, but if he gets it later he gets less than the contract provides; interest should therefore be added for the detention to make it equivalent at the date of the breach so that, in effect, the damages do not exceed the penalty.</p> <p>The modern rule is applied to appeal bonds (388), citing Ives v. Merchants Bank, 12 How. 159; to guardians’ bonds. (392), treasurers’, collectors’, and paymasters’ bonds (393). The conclusion reached by the annotator after an extended review of the authorities (395) is that the doctrine is.“steadily gaining ground that the surety is liable for interest in excess of the penalty in his bond if the damages exceed it, where he has delayed payment after receiving notice of default. * * * Many cases have been found with relation to nearly every one of the different classes of bonds in which interest has been allowed, and it may be safe to assume that the rule of allowance will be, if it is not already, the prevailing rnle.”</p> <p>A surety is bound to the full extent of his express contract and the legal effect of it. It is submitted that the cases limiting recovery to the amount of the penalty deny the legal effect of the contract; for the penalty is recoverable by the express contract of the parties, and the damages, estimated at the lawful interest on the penalty, are the legal effect of the contract. No question is ever made as to the allowance of costs when the judgment equals the penalty, but it is quite as illogical under the circumstances to deny interest as it would be to deny costs. In principle they stand on the same basis.</p> <p>Upon a careful consideration of the Federal cases it will be seen that there is in them no real conflict upon the subject of the extent of liability. See United States v. Arnold, 1 Gall. 360, affirmed in tho Supreme Court in Arnold v. U. S. 9th Cr. 304; U. S. v. Gurney, 4 Cr. 333; Bank of U. S. v. McGill et al. 3 Paine, 663, affirmed in 12 Wheat. 514; Blewett v. Cable By. Co. 51 Fed. Rep. 625; U, S. v. Meeker, 26 Fed. Cases, 1234; Bechtel v. U. S. 101 U. S. 191; U. S. v. Curtis, 100 U. S. 119; U■ S. v. Denvir, 106 U. S. 536; U. S. v. Knowles, 106 U. S. 531; The Wana, 95 U. S. 612; Ives v. Merchants Bank, 12 How. 164; District of Columbia v. Bailroad Company, 8 App. D. C. 316.</p> <p>But in addition to these authorities, the Supreme Court in its latest utterance on the subject explicitly declares that the provision of § 3624, United States Revised Statutes (1 Stat. 512), that interest is chargeable on any unpaid balance due from an officer accountable for public moneys — “is mandatory, and the sureties on the bond must be held to have signed it in view of the requirement as to the date from which the interest should be computed.” Smythe v. U. S. 188 U. S. 156.</p>

<p>Hearing on an appeal by the purchaser at a court trustees’ sale from an order of the Supreme Court, District of Columbia, directing a resale of the property.</p> <p>The Court in the opinion stated the case as follows:</p> <p>The sole question in this case is whether the court below committed reviewable error in refusing to ratify the sale of the property, reported to the court by the trustees, as having been struck off to the appellant as the highest bidder at an auction sale, made under decree of court %</p> <p>The sale of certain real estate was made by trustees, Alexander Wolf and Joseph B. Bailey, at public auction, under a decree of a court of equity. The sale was duly reported to the court by the trustees as having been made- to the appellant, Carl Auerbach, at and for the price of $1,350, he being the highest bidder at the auction for the property. The appellant complied with the terms of sale, by making the required deposit; and the trustees in their report, of sale stated, and made affidavit to the fact, that the sale was in all respects fairly made. There was an order of ratification nisi passed and published; but before final ratification was had, the trustees made a second report to the court, stating that since the sale made to the appellant and reported to the court, they had been offered by other responsible parties a very much larger price for the property, to wit, the sum of $2,250, and for the good faith of which a deposit had been made; and they prayed that the bid made and reported as that of the appellant should be rejected by the court, and the property be ordered to re-sale.</p> <p>Upon this latter report, a rale was made upon the appellant to show cause against the report of the trustees, and he answered the rule, and insisted upon and prayed that the sale as reported to him, should be confirmed. The court, however, upon consideration of all the circumstances of the case, rejected the offer of the appellant, and ordered the deposit made by him to be returned to him by the trustees, and that the property should be re-advertised for sale, upon the terms and conditions prescribed by the decree of sale of the property as originally passed.</p> <p>1. The proposition is the plain question of whether or not a bona fide sale at public auction can be or should be vacated merely because some person comes in afterwards and offers an advanced price for such property. The difference between the selling price and the highest hona fide offer is just $900.25, and the appellees successfully contended in the court below that this was sufficient to vacate the sale. This contention is against the rulings of this court and the Supreme Court of the United States and the courts of the State of Maryland. Hunt v. Whitehead, 19 App. I). C. 116; Graffan v. Burgess, 111 U. S. 180; Snyder v. Young, 161 U. S., p. 334; Byers v. Surgei, 19 How. 303.</p> <p>2. The doctrine that mere inadequacy of price in a chancery sale, where the sale has been made comformably to the powers and directions specified in the decree, is not of itself sufficient ground for vacating the sale, has been so frequently announced by the judicial tribunals that a special reference to authorities to sustain it is deemed almost unnecessary. A sale thus made will not be set aside, or its ratification refused for inadequacy of price, unless the court believe that such inadequacy was the result of fraud, surprise, mistake, or unfairness in' the sale. Oohen v. Wagner, 6 Gill, 179; Johnson v. Dorsey, 7 Gill, 204; Warfield v. Boss, 38 lid. 85; Dircks v. Logsdon, 59 Md. 173; Condon v. Maynard, 71 Md. 601; Smith v. Blade, 115 U. S. 308 ; Fowler v. Taylor, 19 D. C. 456.</p> <p>An examination of the authorities shows that sales are not disturbed, unless the bid therefor is so grossly inadequate as to create a presumption of misconduct or fraud on the part of the receivers, or persons conducting the sale. In other words, it might be said that a judicial sale is never vacated except for fraud, but that in some few cases fraud in the parties making the sale has been presumed from the grossly inadequate price for which the property was sold.</p> <p>As stated in this case, no one accuses the receivers or any person with any fraud or misconduct, and that if this court should affirm this decree, they would have to say that this record shows that the receivers were guilty of constructive fraud when they accepted the bid of the appellant.</p> <p>1. It has been established for a long time that in chancery sales the court is the vendor, and that the bidder takes the chance of acceptance and final ratification, and that until the final ratification there is no sale and no interest in the proposed purchaser. Rorer on Judicial Sales, secs. 10, 124, 126; Williamson v. Berry, 8 Howard, 495; Griffith v. Fowler, 18 Yt. 394; Brewer v. Herbert, 30 Md. 300; All the cases hold that - the plain duty of the Court-is to see that the best results are reached in respect of the parties to the cause, and that wherever it appears that- their rights will be injured the court is justified in refusing to ratify the sale, as has been said in some of the cases. It is far better that an intending purchaser should lose a chance to make a good bargain than that the parties who owned the property should be forced to submit to a sale much less than the real value.</p> <p>2. This case affords an opportunity to settle a very important question, namely, whether'the action of the court below in a case like this is not so far a matter of judicial discretion that no order made in the exercise of that discretion is appealable, unless the action of the court below amounts clearly to an abuse of discretion, which is, manifestly, not this case. See Griffith v. Fowler, supra; Rowland v. Munch, 15 App. 403; Dula v. 8eagle, 98 N. C. 460; Hughes & Go. v. Hamilton et at., 19 W. Ya. 399.</p>

Hearing on an appeal by the use plaintiff in an action by tbe District of Columbia to the use.of another on the bond of the inspector of plumbing of the District, from a judgment of the Supreme Court of the District of Columbia., after a demurrer to the declaration had been sustained and the use plaintiff had elected not to amend.

The Court in the opinion stated the case as follows: This case is brought here on writ of error to the police court of this District.

<p>Hearing on an appeal by tbe defendant from a judgment of the Supreme Court of the District of Columbia on the verdict of a jury in an action to recover the instalments of the purchase price alleged to be due on a contract of purchase.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This action was begun in the name of the Hawley Down Draft Company, for the use of Vick, Whiting & Co., lessees, etc., against the Purity Ice Company, to recover the sum of $500, being the amount of certain instalments due upon the following contract:</p> <p>“Baltimore, Feb. 11th, 1901.</p> <p>“Purity Ice Company,</p> <p>“Washington, D. C.</p> <p>“Gentlemen: We propose to furnish you two Hawley down draft furnaces and attach same to Campbell & Zell boilers of about 215 H. P. each. We to furnish suitable front (lower part) grate bars and all necessary pipes and fittings, also all special tile necessary to make the furnace part complete. For the sum of twenty-five hundred dollars $2,500.00.</p> <p>“Terms two hundred dollars on the completion of our work, and the balance to be paid in monthly instalments 10 per cent of coal bill each; payable not' later than the 5th of each month.</p> <p>“We agree to furnish free of cost for a term of two years any part of water grate or water connections.</p> <p>“Furnace to remain our property until accepted and paid for by purchaser.</p> <p>“No provision hereof can be waived or varied, except in writing and signed by us.</p> <p>“The Hawley Down-Draet Furnace Co. op Maryland.</p> <p>“Vick, Whiting & Co. Lessees.</p> <p>“Henry Vick, Manager.</p> <p>“Accepted.</p> <p>“Purity Ice Company,</p> <p>By J. E. McGaw, Mgr.</p> <p>“We accept conditions of above proposition and agree to make settlement accordingly.</p> <p>“The completion of the boilers not to be delayed by the attachment of furnaces.”</p> <p>Issue was joined upon the defendant’s plea of non assumpsit.</p> <p>One of the use plaintiffs, Henry Vick, testified that his co-partnership were the lessees, for Maryland and the District of Columbia, of the patent rights of the nominal plaintiff, and that he submitted the proposition which became a contract by the acceptance of defendant, the figures $150 therein having been erased and the words “10 per cent of coal bill” inserted in their stead. He further testified to the installation of the plant, as described; also that the defendant’s monthly coal bills averaged $1,000, and that nothing had been paid on the contract.</p> <p>The bill of exceptions then recites the following proceedings relating to the defense:</p> <p>Thereupon the cross-examination of the witness was begun and counsel for the defendant stated that he proposed to ask questions of the witness to elicit what negotiations and representations had been made by him before the execution of the agreement, to which counsel for the plaintiff objected on the ground that the evidence sought to be introduced was not admissible because the written agreement set forth in the declaration embodied the whole contract of the parties, that evidence of antecedent negotiations or representations should not be given for the purpose of altering or varying the written agreement, that such evidence was inadmissible under the pleadings,- and that it could not in any event be obtained on cross-examination. Counsel for plaintiff admitted that he had actual notice of the defenses.</p> <p>Whereupon the court- suggested that all testimony of this nature be taken subject to exception on the part of the plaintiff with the right to the plaintiff at the proper stage of the proceedings to move to strike out all such testimony. The court further saying, by way of explanation: “It is very common practice, all this testimony now goes in subject to exception. If finally the court finds it is not proper, then on motion to strike out it is as if it had never been spoken and defendant’s counsel can except to the ruling. If, on the other hand, the court holds it is proper testimony to go to the jury, then the plaintiff’s counsel can except to all that character of testimony, thus both sides get the benefit of the ruling.”</p> <p>Thereupon and under the arrangement above stated the witness testified on cross-examination as follows:</p> <p>“The reason for the change, to ‘10 per cent of coal bill’ was so Purity Ice Company would not be out. I assumed that there would be at least a saving of $150 on coal a month and estimated the percentage at 10 per cent.”</p> <p>~‘Q. You understand the difference between estimating and guaranteeing, do you not, Mr. Vick ?</p> <p>“A. I did not guarantee anything in that contract.</p> <p>“Q. I asked you if you knew the difference between estimating and guaranteeing ?</p> <p>“A. Very plainly.</p> <p>“Q. I want to get a complete answer whether you made a guarantee or an estimate.—</p> <p>“A. If I made a guarantee it would be in the contract.</p> <p>“Q. It would have been in the contract?</p> <p>“A. Yes. We made various kinds of contracts, one guaranteeing and one not. I knew when to stop.</p> <p>“I recognize the paper handed me as a circular issued by the Hawley Down Draft Furnace Company and know its contents thoroughly. I did not draw McGaw’s attention to the guarantee on page 11 of this circular which I handed him.</p> <p>“I said to Mr. Lee Hutchins at various times when I was drawing his attention to the furnaces that, instead of paying coal merchants what he had been in the habit of paying, to pay me for a limited period of time the saving that the furnaces would make to him.</p> <p>“'The old condition was four old return cylinder boilers in one boiler house, rated at about 100 horse power. McGaw had then no intention of building new boiler house or new boiler or new stack or anything else. I told him I was willing to put one furnace on one boiler and make a comparative test. If my furnace did not show a saving I was to take the furnace out and put his boiler back in the condition it was in before and he was nothing out. If it did, he was to pay me a percentage of the coal bill saved. When they got ready to put in the new boiler plant it necessitated a larger plant, doing away with two boilers, briefly, and the consequence was I could not tell what his coal consumption would be under the new instalment and referred him to the Bureau of Engraving, the Star building, the Post building, and the IT street pumping station, where they pumped the water and weighed the coal and had an accurate re-suit of the water pumped and the coal burned. I told them to refer to the records on file and they would be able to see the results and if the furnaces then was satisfactory to them I would put them in. I had him satisfy himself on the boilers here with like conditions and like boilers. I accepted the contract and hurried the work along as fast as possible and the furnace is in and working to-day. The furnaces will do everything that was expected of them, while not guaranteed. I could not guarantee them because I did not know the conditions that would follow after installation. With new machinery and new boilers and everything it would be a piece of folly for me to make any guaranty based on uncertainty. I wrote a letter after the installation on April 29th, asking for the first $200 due on the work, and in reply received a letter signed by Mr. Lee Hutchins calling my attention to the fact that I had guaranteed a whole lot of things and if I did not fulfil my guaranty he would not pay the bill. I then came over to Washington and met McGaw and we talked for fully an hour, and I said that I was under no obligation and no guaranty to make any tests, but, in order to set McGaw right before his people, I was willing to make a test. He said, ‘I went down there the other day just as they were reading the letter and they jumped all over me, finding fault with the contract I signed.’ I said, ‘In order to set you right before your people I am willing to go to the expense of $100 or $125 to make a test of the boiler,’ showing that the boiler was developing the horse power I told him they would get after visiting the plant. I also told him if he would assist my men I would come over there and put in tanks and get all ready; and for making the test I engaged a man at $50 a day to come over from Philadelphia and make the test, not because I was under any obligation to do it, but in order that he might, make himself right before his people. I brought this gentleman over from Philadelphia and made all arrangements to make the test. Then McGaw wanted it made in a certain way, and I said, ‘There are certain rules of the Society of Mechanical Engineers to be followed in running these tests. This man is a member of the Society of Mechanical Engineers and these people have rules, and if you want that Yol. XXII — 37 test made that way I will run it, but if I am not permitted to run' the test according to these rules,’ I said, 'we will call the test off.’ He consulted with the engineer, Mr. Thompson, very carefully, and Mr. Thompson and he decided that he was all ready. We got already to start the test, and when we got ready McGaw came back from his breakfast and said, 'Now, are you . going to run this test half water through the heater and half through the tank?’ I says, 'We are going to run it all through the tanks so Ave will know to an ounce every pound of water that is evaporated and every pound of coal that is burned.’ And he said, 'That won’t be satisfactory to me.’ And I said, 'If it is not satisfactory to you, I am through.’ There was a whole lot of pipe in connection v?ith the pumps. The water was pumped from the heater or pumped through the heater. It was' taken from the main and pumped to the heater and through the heater into the boiler and those pipes passed down underneath the ground and the elbows and valves and various other connections were buried out of sight and in order that we would have no air and no leak, — the valves might leak and let the water pass off Avhich might othexuvise shoAv evaporation; and it was in the interest of accuracy that these pipes were carried above the ground so we would see there was no leakage and no water leak out that did not go through the pumps and none leak out that would be Avasted. And if Ave run that test as he wanted it would show a larger evaporation than it otherwise would have, and it would ■ show the boiler doing more work than it actually did. I wanted to use this method for its accuracy; I gathered up my tools and got my helpers together and walked off, and the next thing was I notified them that they would have either to pay or put it in court.”</p> <p>Whereupon the plaintiff rested. It was understood and agreed between counsel on both sides and the court that the arrangement made during the cross-examination of the witness Vick should apply to the testimony of the witnesses for the defendant, and that all the testimony touching conversations or negotiations between plaintiff and defendant antecedent to the agreement of February 11, 1901, or concerning negotiations as to capacity of furnaces either as to saving of fuel, consumption of smoke, as to tests or catalogues, or any other subject connected with said furnaces, should be understood to be objected to by plaintiff and with the right to plaintifE to move at the close of the case to strike all such testimony out.</p> <p>And thereupon the defendant to prove the issues joined on its behalf produced Lee Hutchins, who being duly sworn testified as follows:</p> <p>“I am the treasurer of the Purity Ice Company. I had a conversation with Yick in regard to improved furnaces which would consume smoke and save coal the first time I met him in the middle of January, 1901, which was just after the smoke law was passed. Yick told me that he would install the Hawley down draft furnaces in place of the furnaces furnished in the new boilers. We were about to complete a plant with larger boilers and Yick told me that his furnace would consume the smoke and save 15 per cent of fuel that we had before used to produce the same power and we could pay him the saving, the first payment to be taken in the shape of boiler fronts, and grates thrown out of service or displaced by his. I was in a burry and told Mr. Yick and McGaw who had authority to make contracts for the Purity Ice Company, to talk it over and see me again, which they did some weeks after. I told him that we incurred a pretty heavy bill for the plant, and he again stated that this would be no extra drain on the resources because we only paid as we saved, and we paid him instead of paying the coal bill that we would have to pay anyway.”</p> <p>Whereupon witness was asked: “Did you visit any plants equipped with this down-draft furnace ?”</p> <p>“A. Only one; the Centre market, — yes, I did; the H street pumping station after the contract was made.</p> <p>“Q. Pefore that?</p> <p>“A. No, sir. Mr. Yick and I went down to the Centre market power house.</p> <p>“Q. Did you make any examination of it?</p> <p>‘‘A. I Avatched it for about half an hour or three quarters.</p> <p>And witness further went on to say: “I told him that we were going to put in new Campbell & Zell boilers, and we could not see llow we could estimate a saving because we never used those boilers. We had used and were going to tear out, in order to put in this very machinery, three or four old boilers. I suggested 3 pounds per horse power per hour as a fair estimate, that is, for the consumption of those boilers with the ordinary grates; no special devices or anything of the kind.</p> <p>“Q. By grates, you mean furnaces ?</p> <p>“A. Furnaces; that is part of the grate. He said we could take that as a basis of comparison and he would guarantee a saving of 15 per cent on that basis, and would prove it by a test; and that if it was not satisfactory he would take the boilers out and restore the old furnaces and grates and boiler fronts; because he takes out half the boiler front to put his device in.</p> <p>“Q. I want to be certain about this, — as to the time when this conversation took place in reference to the test.</p> <p>“A. At the time the test was to take place ?</p> <p>“Q. The time of the statement as to the test?</p> <p>“A. It took place at the second interview I had with Mr. Vick. It took place about the 10th of February, 1901. The Hawley down draft furnace makes no difference as to our coal bill, that is, compared to the consumption under the old tubular boilers. The new boilers had an automatic feed which the old boilers did not have, and which is supposed to be a saving by regulating and keeping a uniform heat of water in the boiler.</p> <p>On cross-examination witness said, “I took the old boilers out about the middle of January or the 1st of February, 1901, and I am still using those two furnaces.”</p> <p>On redirect examination the witness testified: “Mr. Vick and his attorney called to see me in July, 1901, and demanded payment, which I refused. They left the office together, and the attorney returned in less than a minute or two and asked whether I considered that I had accepted the boilers. I declined to answer that question, and he said, ‘Well, we consider that you haven’t accepted them and we shall remove them,’ and I said ‘‘All right.’ ”</p> <p>Whereupon the defendant to prove the issues joined on its behalf produced J. E. McGaw, who, being duly sworn, testified as follows:</p> <p>“I am the president and general manager of the Purity Ice Company, and installed the plant there in 1895. The first time I ever saw Mr. Vick was in the first half of January, 1901, when he came into the office and introduced himself and said he wanted to talk with me in regard to a furnace. lie pulled out a catalogue and said that he understood that we were going to add new machinery to our furnace and he wanted to install his furnaces.”</p> <p>Whereupon the defendant offered in evidence the catalogue identified by the witness, and upon the objection of the plaintiff’s counsel, the court refused to admit the same, to which ruling the defendant by its counsel then and there duly excepted, and the court noted the exception upon its miautes.</p> <p>Thereupon in connection with the foregoing testimony and matters the witness further testified:</p> <p>“It would save fuel and increase the efficiency of the boiler at least 25 per cent. We then had in four return tubular boilers that we were working our plant with at that time; and I told him I was going to take those out and put in one or two boilers. Well, he says, H can install this furnace under these boilers and increase the efficiency of the plant at least 25 per cent and make the coal saving from 12 to 15 per cent. If I don’t do this I am willing to take these furnaces out from under your boilers and install the old grates, and put your new boilers in the same condition that they would be if we had not installed our furnaces.’</p> <p>“I told him I had just made a contract for $53,000 worth of machinery, with the De La Verne Ice Machine Refrigerating Company, and if he would come around in a year’s timé, I would be glad to talk with him and might feel like spending some more money for machinery, but at this time I did not care to talk about it because I did not care to go deeper into expense, and Vick said, ‘‘This is just the point I want to talk with you on. You say you want to manufacture ice as cheaply as anyone else; and by putting in these furnaces under your boilers that you are going to install, the Campbell & Zell water tube boilers, I can save you at least from 12 to 15 per cent of the coal bill which you pay to me instead of the coal man/ The next time I saw him, a few days later, he told me the price of his furnace was $2,500 for the two; and he said, ‘in a year or so you will pay for these machines by the saving of 12 to 15 per cent in the coal bill, and you will never miss it/ He said, ‘The money you are paying out to coal men you will pay to me, and at the expiration of a year or so you will have this device already paid for, and won’t miss it/ The third time he came he brought a boiler man with him named Barr and introduced him to me to sell me boilers. I told Mr. Barr that we had contracted for boilers and we did not wish any, and Mr. Vick began on me about the Hawley down draft furnace. The next time I saw him was at Hutchins’s office, and we talked about the Hawley down draft furnace in a general way. Later in the evening Vick came up to the office after dark, and said, ‘Well, Mr. Hutchins and I were down at the Centre market, and he seemed to like the furnaces very well, and everything is arranged for you to now sign the order,’ — the contract for the furnaces — he had it with him. I said, ‘You understand, Mr. Vick, I don’t want to put anything into this because I am afraid it will delay the installation of the machinery.’ I was under contract with the De La Verne Company to give them a new engine room, and I was taking the old boilers out of the old boiler room and making an engine room of it, and I was under contract to give the De La Verne Company the old boiler room for an engine room on March 6th. And I said, ‘You understand this very clearly, that I cannot afford to be delayed, but, if Mr. Hutchins says to me to sign this contract, why, I will do it, but the proviso must be put in here that I shall not be delayed.’ And we were delayed about ten days, or perhaps two weeks. And I insisted upon him putting it in at that time. Later after the furnaces were in and Mr. Vick asked for the remittance of $200, I told him he must make the test which he promised, and he said, ‘Suppose I make this test and it does not turn out satisfactory, -will you pass these furnaces V I said to him, ‘Emphatically, I will not.’ And he said, ‘Why you'have had the use of them for two months.’ And I said, ‘That does not make any difference; I haven’t accepted them and I will not accept them until the test is made. Now, you don’t want to act the boy. If you are sure you have got a good thing, why, make the test and demonstrate that you have, and I will see you get the money,’ and he said, ‘I will make the test.’ And I said, ‘Well, that is like a man.’ And he said, ‘We have to get a couple of barrels, I will be up there to-morrow.’ I think he said to-morrow. He did come, and he prepared to make the test under the ordinary circumstances, — under the conditions that we were then running. We were taking water and running it through the heater and comparatively heating it before we put it into the boilers, and he arranged to make the test under those conditions. I furnished him the barrels and the pipes that were necessary to connect the barrels to the hot-water heater also to the feed-water pump, and the barrels were measured and weighed and a stamp made on everything. The bed of the furnaces were cemented and cleaned out. A man crawled all around there and cleaned out the furnaces and cemented them all around the side so as to prevent air from getting in the furnace so as to make a genuine test. I thought he was sincere and I thought he would make a genuine test. He got through sometime between 7 and 9 o’clock and said, ‘Everything is ready for the test to-morrow morning except the scales. You haven’t the scales in the pit-’ I said, ‘It is all right; I will have them by 7 o’clock, and that will be all right.’ We both parted agreeably and he went off. Next morning I got at the plant about 4 o’clock, and before 7 I had the scales down in the pit, and the boxes in it to weigh the coal and Mr. Vick came. I usually came back about 8 o’clock— from 8 to 8:30, and he had an expert with him and he then raised the question about making this test ordinarily, — that is, in the ordinary way he prepared to make it the day before. He said that there might be some leak in the pipes that was not in the other pipe, that it was a little more fair to him the other way than it was this way. ' He wanted to make it that way, and he wanted to make it with the cold-water test. And I objected to that. Now, I said, ‘I am willing to meet you half way in this thing because I am as anxious for a good result as you are. I don’t object to paying for this furnace if it is an economy, and if you are willing to run six hours with the hot-water test and six hours with the cold-water test, I am with you, and we will go ahead and make it.’ It was positively understood that would be done. I then went off to breakfast and when I got back they were all sitting around in the engine room. I said, ‘What is the matter ?’ and Mr. Vick said, ‘I am going to make this test with cold water.’ I said, ‘Won’t you make it half one way and half the other?’ And he said, ‘No, we are going to make it altogether with cold water,’ And I said, ‘I don’t agree to that.’ He had on his overalls and jumpers too,— I think he had on jumpers; and he pulled them off and said, ‘I will wipe my hands of the whole business.’ And he went off. My objection to his making the test the way he wanted to make it was that he was to save us from 12 to 15 per cent of coal. I wanted the actual saving in coal, and I wanted a test made under the conditions that we were then running the boilers, and expected to run them under in the future at all times. And he being more of an engineer than I was, when he put it into figures, say so many pounds of cold water evaporated by so many pounds of coal, say so many of this to one of the other, I could not refute it, — I could not deny it. But when he burned so many pounds of coal to evaporate so many pounds of water running under the conditions that we were then running under, I would know whether I was saving money or not saving money. It was a matter of calculation. It was a fact what vas being done. We evaporated so many pounds of water with so many pounds of coal. If it had to be calculated, then he might confuse me in figures. The furnace consumed smoke in this regard, if you let the furnace or boilers do about two-thirds of their capacity or about two-thirds of what they really ought to do, you would see very little smoke, but if you forced those boilers to their capacity, not saying 25 per cent over their capacity, but even up to that capacity, there would be as much smoke as there would be from the other furnace we have in there now that is not equipped with the Hawley down draft furnace. This is, running the boiler on two-thirds duty.”</p> <p>“Vick turned to the page of the circular where the guaranty was written, ani pointing to one of the lines with his finger, he said, ‘This is what we guarantee.’ (And the witness indicated the following paragraph in the circular which was in words and figures as follows:</p> <p>“The Hawley down draft furnace can be attached to any type of water tube, tubular or flue boilers, and is offered to steam users with the folio-wing guaranties:</p> <p>“1. To consume 95 per cent of the smoke under all conditions, regardless of quality of soft coal burned.</p> <p>“2. Will burn 30 to 40 lbs. of coal per hour per foot of grate surface, with good economy.</p> <p>“3. Will evaporate 10 per cent more water per pound of coal than can he done by any other system.</p> <p>“4. Will increase the capacity of the boilers 50 per cent with perfect safety and good economy of coal.</p> <p>“5. Will furnish uniform temperature of more than 2,500 degrees Fahrenheit to every part of heating surface.</p> <p>“6. Will cost less for repairs than any other furnace or stoker.”)</p> <p>Thereupon, the defendant, in order to show what the furnaces of the plaintiff were and the other guaranties made by the plaintiff in its said circular, and hecanse of the testimony heretofore set forth, offered the entire circular in evidence, the whole of said circular having been previously submitted to the court, and which said circular besides other descriptions on other pages contained on page 11, the following guaranties:</p> <p> “We Guarantee </p> <p>“To prevent 95 per cent of the smoke, burning any grade bituminous coal.</p> <p>“It will increase the capacity of the boilers from 25 to 50 per cent.</p> <p>“Tt will save from 10 to 40 per cent in the cost of fuel.</p> <p>“Should our furnaces fail to do as guaranteed, we agree to remove them and replace the former setting at our expense.”</p> <p>On the same page over the reproduction of a Hawley down draft grade, are the words:</p> <p>“All our furnaces are sold upon positive stated guaranties of economy, increased capacity, and smokelessness, and attached to boilers at our expense.”</p> <p>To the admission of which circular the plaintiff objected and the court sustained the objection, to which the defendant by its counsel then and there excepted, and the court noted said exception upon its minutes.</p> <p>Thereupon, in connection with the foregoing testimony and matters, the witness on cross-examination further testified that the Hawley down draft furnaces were still being used by the defendant.</p> <p>Thereupon, in connection with the foregoing testimony and matters, the defendant to maintain the issues joined on its behalf produced George C. Thompson, who testified:</p> <p>“I am and have been in the employ of the Purity Ice Company as engineer for the past eight years. I am familiar with the old plant which consumed 8 tons and 10 cwt. of coal in twenty-four hours. It takes less coal to run a 200-horse-power boiler than it does to run a 100-horse-power boiler, both having the same amount of work to do. It took nine tons of coal to run the machinery with the new boilers having the Hawley draft furnaces attached, although on the new boilers we had an automatic feed which is supposed to save 10 per cent of coal, and which device was not on the old boilers. The capacity of the plant beginning in August, 1901, was enlarged, but up to that time was the same as it had been for the seven yearsand thereupon the. defendant rested. The foregoing is all the testimony offered in the case on trial.</p> <p>Whereupon the plaintiff, by its counsel, moved the court to strike out all the testimony of all the witnesses in the case, whether on direct or cross-examination, touching conversations or negotiations between the plaintiff and defendant antecedent to the agreement of February 11, 1901, given in evidence in this case, also all testimony concerning representations as to capacity of furnaces, either as to saving of fuel, consumption of smoke, or on any other subject connected with said furnaces; as to conversations, agreements, or arrangements as to tests between the plaintiff and defendant, also the catalogue offered in evidence by the defendant so far as it was admitted in evidence; and the court granted the motion; to which the defendant by its counsel then and there duly excepted, and the court noted said exception upon its minutes.</p> <p>The court then instructed the jury that the evidence on behalf of defendant constituted no defense to the action. Verdict for plaintiff for $500 was followed by judgment, from which defendant has appealed.</p> <p>1. The circular or catalogue of the Hawley Down Draft Furnace Company, appellee, should have been admitted in evidence to identify the subject-matter with reference to which the parties were treating. Parol testimony is always admissible in the construction of contracts, to define the nature and qualities of the subject-matter, the situation and the relations of the parties, and all the surrounding circumstances. Greenleaf, Evidence, §§ 288, 289 ; Bradley v. Washington, etc., Steam Packet Co. 13 Pet. 89; U. S. v. Peck, 102 TT. S. 64; Fire Ins. Asso. v. Wickham, 141 IT. S. 564; Stoops v. Smith, 100 Mass. 63; Bice v. Forsyth, 41 Md. 389 ; See also the note to Donley v. Tindall (32 Texas, 43) in 5 Am. Pep. 241; and for a more specific ease particularly applicable to the case at bar, see Phelps v. Whit-taker, 37 Mich. 72.</p> <p>2. The excluded evidence was admissible to explain the ambiguities existing in the writing, and the explanation necessarily shows that the real contract between the parties was much wider _ than the writing. The authorities are legion that parol evidence is admissible to explain such an ambiguity. The law is most clearly set forth in Bice v. Forsyth, 41 Md. 389. See, especially, Warfield v. Booth, 33 Md. 63, which, while not a case of warranty of quality, bears on the case at bar, both as to facts ■and pleading. See also McCann v. Preston, 79 Md. 223.</p> <p>3. The evidence stricken out was admissible because it tended to show the breach of an independent express collateral agreement about which the written instrument is silent. This court has adopted the principle that evidence is admissible to show any collateral parol agreement which does not interfere with the “terms of the written contract, though it may relate to the same subject-matter.” Main v. Aukam, 12 App. D. 0. 389. The English authorities are Stephen’s Dig. of Evidence, art. 90; lAndley v. Lacey, 17 0. B. (N. S.) 578; Jeffrey v. Walton, 1 Starkie, 267 (2 E. C. L. 108) ; Allen v. Pink, 4 Mees. & W. 140, a case of written contract with express warranty resting in parol. The Maryland authorities are McCreary v. McCreary, 5 Gr. & J. 147, 157; Basshor v, Forbes, 36 Md. 154; Fustrng v. Sullivan, 41 Md. 162, where the court discusses the principle and reviews the Maryland cases. In Seitz v. Refrigerating Co. 141 U. S. which we shall discuss hereafter, at page 517 the Supreme Court has adopted the same doctrine. In the case of Phelps v. Whittaker, 37 Mich. 72, the court admitted evidence of oral representations made by the agent of the manufacturer prior to the giving of a written order which contained no reference to the representations which had been relied upon; and especially to be noted is the admission of a printed circular containing “guaranties,” shown to the defendant at the time of the sale and upon the strength of which he claimed to have given the order. Chapin v. Dobson, 78 N. T. 74, is a much-cited case on the subject of parol warranties. Here the writing in evidence was similar to this, but the verbal warranty was much more indefinite. The seller merely agreed “that the machines should be so made that they would do the defendant’s work satisfactorily,” and the court sustained the admission of the evidence. The case of the Bed Wing Manufacturing Co. v. Moe, 62 Wis. 240, is another in which the facts are similar. Representations were made that the machine was of 4 H. P. The writing was quite as broad as the writing here. The court excluded the parol evidence, but the case was reversed on appeal on this ground, the court saying that “the warranty and representations of capacity of the engine were cause and inducement of the written contract, and that thereby the contract was procured.” See also Neat v. Flint, 88 Maine, 72; Greenewalt v. Kohne, 85 Pa. 369 ; Ayer v. Bell Mfg. Co. 147 Mass. 46. It may he contended in this court, as it was below, that the expressions of Vick are mere expressions of opinion or puffing, and not warranties. He has thought by leaving express warranties out of the written contract, to escape the effect of his representations; but, whether he intended such representations as warranties or not, the test is whether he was asserting facts, or merely an opinion or judgment upon matter about which he, as vendor, had no special knowledge. In the former case there is a warranty; in the latter, not. And this intention is a question of fact for the jury. See Benjamin, Sales, ¶¶ 613, 614; Shippen v. Bowen, 122 U. S. 575; Columbian Iron Works v; Douglas, 84 Md. 44; Osgood v. Lewis, 2 H. & G. 495; Crenshaw v. Slye, 52 Md. 140; Beals v. Olmstead, 24 Vt. 114; McClintock v. Emick, 87 Ivy. 167; Ormsby v. Budd, 72 Iowa, 80; Drew v. Ellison, 60 Vt. 401; Powell v. Chiltick, 89 Iowa, 513 ; Enger v. Dawley, 62 Vt. 165; Schouler, Personal Property, § 329.</p> <p>4. Even if there was no express warranty, the evidence was admissible to show the purpose for which the device was sold, and as showing a breach of an implied warranty of its fitness for that particular purpose. Hice v. Forsyth, 41 Md. 389; Brown v. Edginton, 2 Mann. & G. (40 E. O. L. 601) 279.</p> <p>5. The evidence was admissible to show the agreement on the part of the appellee to perform a test without which the contract sued on was not to become operative. Pym v. Campbell, 6 El. & Bl. 370; Wallis v. Littell, 11 C. B. (N. S.) 369; Burke v. Dulaney, 153 H. S. 228; Juilliard v. Chaffee, 92 N. Y. 529; Donaldson v. Uhlfelder, 31 Wash. Law Hep. 428; Reynolds v. Robinson, 110 N. Y. 654; McCann v. Preston, 79 Md. 223; Engel v. Scott & H. Lumber Co. (Minn.) 61 N. W. 825; Potter v. Phenix Ins. Co. 63 Eed. Hep. 382.</p> <p>6. The defenses were available under the pleadings. Stephen, Pleading, pp. 175, 176; 1 Chitty, Pleading, pp. 414, 415; Perry, Pleading, pp. 247, 248; Poe, Pleading, §§ 607, 609; Dushane v. Benedict, 120 U. S. 630; Groff v. Hansel, 33 Md. 161; Weaver v. Schriver, 79 Md. 543; Bell v. Sheridan, 21 D. C. 370.</p> <p>1. Parol evidence of a prior or collateral warranty is not admissible to vary the terms of a written contract where such contract expresses the full intent of the parties. Where a writing merely amounts to a memorandum of sales, or a receipt, then, this being merely a parol contract, parol evidence of a warranty would, of course, be admissible. Seitz v. Brewers’ Refrigerating Co. 141 U. S. 510; DeWitt v. Berry, 134 IT. S. 306; Van Winkle v. Crowell, 146 TJ. S; 42; Rogers v. Garland, 19 D. 0. 24; Cassard v. McGlannan, 88 Md. 173; Tiedeman, Sales, § 196.</p> <p>2. Nor is an agreement of warranty subsequent to the written contract binding except upon a new consideration. This, being a separate and independent agreement, sustained by a separarate consideration, could, of course, be shown by parol evidence, even though the original contract is in writing. The test, which it is shown appellee agreed after the installation of the furnaces to make merely for the accommodation of appellant’s manager, was, of course, not a warranty; and in any event it was subsequent to the contract, and no new consideration passed. Tiedeman, Sales, § 196.</p> <p>3. There is nothing whatever in the evidence that discloses in the least any fraud on the part of the appellee; and appellant cannot bring in a warranty under the guise of fraud. Seitz v. Brewers’ Refrigerating Co. 141 U. S. 510.' A statement, in order to amount in law to a false representation, must be in regard to some existing fact, and not in regard to something that will or may happen in the future. This is mere matter of opinion. Sawyer v. Priclcett, 86 U. S. 146; Robertson v. Paries, 76 Md. 118. But while a deliberate false statement as to the capacity of boilers, or of the saving qualities of a furnace, or such a statement as the party making the same could by reason of his expert knowledge readily ascertain is false, might constitute fraud, yet no such false statements were made by the appellee, nor any statement made which Mr. Vick, by reason of his expert knowledge, could have ascertained was false. Van Stone v. Stillwell cfi Pierce Mfg. Co. 142 TJ. S. 128.</p>

<p>Hearing on a motion by the appellee to dismiss an appeal from an order of the Supreme Court of the District of Columbia dismissing an appeal from a justice of the peace.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>1. The judgment of the justice of the peace was merely a judgment quashing an attachment before judgment. Before the enactment of the Code no appeal from Such action was ever heard, of. Too manifestly for argument, § 30 of the Code contemplates a-final judgment for or against one of the parties in respect of the matter in controversy, and has no application to any interlocutory.or intermediate proceeding. Section 33 gives to any person other than the defendant the privilege of claiming right of property in any articles seized, whether on execution or other process issued by a justice of the peace, and the right to the defendant to claim that any property so seized is exempt from execution, and to each the right of trial of such claim before the justice; and § 35 provides for an appeal from the action of the justice in either such ease. Hut it is in such case only that any appeal is provided from any action of a justice of the peace, except his final”judgment or order.</p> <p>2. The act creating this court, § 7, provides for an appeal thereto by “any party aggrieved by any final order, judgment, ‘or decree of the supreme court of the District of Columbia, or of any justice thereof;” saving,-of course, the right of appeal, in the discretion of this court, upon proper showing. The action of the supreme court of the District of Columbia in this cause was not final, for the double reason, first, that it was only the dismissal of an appeal; and, second, an order returning the cause to th'e justice of the peace before whom it was instituted with directions to proceed therein according to law.</p> <p>Counsel taking the appeal to this court relied in the court below on § 226 of the Code. Two provisions of this section are supposed to give the right of appeal contended for, namely, first, that “any party aggrieved by any final order, judgment, or decree of the supreme court of the District of Columbia, or of any justice thereof, including ”any final order or judgment in any case heard on appeal from a justice of the peace, .may appeal therefrom to the said'court of appeals;” and second, “appeals shall be allowed to said court of appeals from all .interlocutory orders of the supreme court of the District of Columbia, or by any justice thereof, whereby possession of property is changed or affected, such as orders for the appointment of receivers, granting injunctions, dissolving writs of attachment, and the like.”</p> <p>As to the first of these provisions, it requires no argument to show that it has no application in the premises, for the plain reason that, as aforesaid, by its very terms, the order appealed from is not a final order. _</p> <p>Nor has the second provision referred to any application to the case, as the order complained of did not itself dissolve the attachment originally sued out, but merely in effect held that the action of a justice of the peace dissolving an attachment issued by him is not appealable.</p> <p>1. The court below acted upon the case as if it were an ordinary attachment for debt before judgment, and made no distinction between such an attachment and one levied to enforce the landlord’s tacit lien for rent against the tenant’s goods upon the premises, as provided by § 1229 of the Code. In either ease, above mentioned, an appeal will lie,for § 30 of the Code specifically provides for an appeal from a final order. Section 226 of the Code gives the right to appeal to this court, upon an order of the supreme court of the District of Columbia, dissolving an attachment of any kind, and undoubtedly it was the intention of the framers of the Code, when they used the words “or other final order” in § 30, to provide for just such a case as the one at bar; for, if an order dissolving an attachment, and releasing goods which have been seized and taken under execution, is not final, I cannot see. what kind of an order, other than a final judgment disposing of the whole case, can be considered final. The order dissolving the attachment in this case was not only a final order, but a final judgment (1 Am, & Eng. Enc. Law, 1st ed. pp. 931, 932) ; for, if the plaintiff was not entitled to enforce his lien by attachment, as provided in § 1230 of the Code, that was the end of the case, in so far as his lien for rent was concerned. If the narrow construction placed upon § 30 of the Code by the court below is correct, it means that Congress, while giving litigants the right to appeal to this court from an order of the supreme court of the District of Columbia, dissolving an attachment, did not mean to do so in a similar ease before a justice of the peace. In other words, the knowledge of the justice of the peace, in the opinion of the framers of the Code, was more to be relied upon, in such a matter, than the justices of a court of record. While through mistake or inadvertence such a law may exist, yet it seems to ihe to place such construction on the laws in question would be clearly in contravention of the statute, f 2. However, it is not necessary for this court to pass upon the question as to whether or not an appeal will lie from an order of a justice of the peace, dissolving an attachment, for debt, «before judgment; for an attachment to enforce a lien for rent is clearly distinguished therefrom. “Statutory liens without possession have the same virtue that existed in common-law liens accompanied by possession.” Fowler v. Rapley, 15 Wall. 328. In an-ordinary attachment for debt there must be a judgment against the defendant before he proceeds to subject the property to execution. Drake, Attachment, §§ 221-, 228. Sections 1229 and 1230 of the Code are identical with the statute that was in force before the Code. Abert’s Compiled Stat. § 316. By § 1230 the lien may be enforced in three ways: First, by attachment before judgment; second, by judgment and execution; third, by action against purchaser of chattels. The suit was not begun to obtain a personal j udgment. The form of the writ in this case is that which has been used in this district for years, and by that it appears that no judgment other than condemnation of the property is contemplated. In an ordinary attachment the dissolution discharges the lien obtained by the levy; in such a case as this its effect is to destroy the lien created by statute. Fowler v. Raply, 15 Wall. 328; Drake, Attachment, § 411.</p> <p>3. The following cases show that the order dissolving the attachment was an appealable order: Williams v. Hutchinson, 26 Fla. 514; Jeffrey v. Coleman, 20 Fla. 538; U. 8. v. Killman, 3 McA. 76; Danforih v. Cross, 4 Iowa; 230; Kurtz v. Dun, 36 Ark. 648; Hectman v. Sharp, 8 McA. 90; Cross v. Goldsmith, 4 Mackey, 126; Richmond v. Cake, í D. C. App. 447; Stroheim v. Deimel, 77 Fed.' Eep. 802; Baker v. Lehman, Wright, Ohio, 522; Ware v. Richardson, 3 Md. 505. The mode of procedure in this case is sustained by the United States Supreme Court in Fowler v. Rapley, 15 Wall. 328, and Beal v. White, 94 U. S. 382. Because only a part of the rent was due was no ground for dissolving the attachment. Jean v. Spurrier, 35 Md. 110; Dawson v. Bain, 2 Gill & J. 53, 1 Gill, 373; Gross v. Goldsmith, 4 Mackey II. C. 126. Final order defined. In Re Rose, 80 Cal. 170. See also Higgins v. Grace, 59 Md. 365, see p. 374.</p>