Volume 23 — Appeals, District of Columbia

Hearing on appeal by the defendants from a judgment of the Supreme Court of the District of Columbia, in an action on a bond against the principal and surety.

Hearing on an appeal by tbe caveators from a decree of tbe .'Supreme Court of the District of Columbia holding a special term for probate business, admitting to probate and record a paper propounded as a last will and testament, after a trial by a jury of issues framed under a caveat to the will, on the trial •of which issues the court directed a verdict for the caveatees.

<p>Hearing on an appeal by the respondent, the superintendent of the Reform School for Girls of the District of Columbia, from a judgment of the Supreme Court of the District of Columbia, discharging the petitioner from the custody of the respondent.</p> <p>The Court in the opinion stated the case as follows:</p> <p>The appellant, Amy J. Rule, as superintendent of the Reform School for Girls of the District of Columbia, appeals from a judgment of the supreme court of the District discharging the appellee from her custody.</p> <p>The petition for the writ of habeas corpus was filed April 13, 1903, by Helen Geddes through Charles S. Peters as next friend, and alleged that petitioner was a citizen of the United States, resident in said District, and seventeen years of age; that on October 11, 1901, she was, without authority of law, incarcerated in the girls’ reform school; that no trial was given her, and no proper proceeding had in any competent tribunal to deprive her of her liberty and confine her in said school and house of correction; that she is restrained of her liberty without authority of law and in violation of her constitutional rights, notwithstanding that she and her father have demanded her release.</p> <p>The petition was sworn to by the next friend, who- also states that he is the son-in-law of petitioner’s father, and is about to remove to his house, and that petitioner desires to make her home with them, with the consent of her said father and affiant.</p> <p>The respondent made return to the writ admitting the custody of petitioner, and alleging that the same was under regular commitment under the law.</p> <p>The following proceedings appear in the exhibits made a part of said return:</p> <p>EXHIBIT “A.”</p> <p>Keform School for Girls of the District of Columbia.</p> <p>Charles W. Geddes, of the city of Washington, District of Columbia, states that he is the father of Helen Geddes, a minor of the age of fifteen years, born in Washington' April 19, 1886; that the said Helen Geddes is incorrigible, wholly beyond his control and management, and is a proper subject for the Keform School for Girls of the District of Columbia; and that it is his request and desire that the said Helen Geddes may be received into the said school according to the laws establishing and governing the same; that his wife, the mother of the said Helen Geddes, is no longer living. C. W. Geddes.</p> <p>Witness: W. W. Smith, 1317 E.</p> <p>Subscribed and sworn to before me on the ninth day of October, a. d. 1901.</p> <p>Witness my hand and the seal of the institution.</p> <p>Henry M. Hoyt,</p> <p>President of the Board of Trustees of the Keform School for Girls of the District of Columbia.</p> <p>EXHIBIT “B ”</p> <p>October 11, 1901.</p> <p>In relation to the application-of Charles W. Geddes for the admission of his daughter Helen to the Girls’ Keform School he makes the following additional statements under oath: That his daughter’s- deterioration is due to the influence of bad company; that she has become entirely incorrigible and that he is unable to control her; that she will not go to school, and although all possible efforts have been made by him and other members of his family, she continues to consort with immoral companions, male and female, and has begun to take to drink. That while she is not violent in her temper, she disregards and disobeys his parental orders and neglects and refuses to perform her household duties.</p> <p>EXHIBIT “0.”</p> <p>Extract from the president’s record of commitments, Beform School for Girls, D. C., page 5 :</p> <p>“October 9, 1901.</p> <p>“Charles W. Geddes, being duly sworn, makes application for the admission of his daughter Helen to the Girls’ Beform School. He states that he is a clerk in the Adjutant General’s Office in the War Department and lives at 310 E. Capitol street N. E.; that his said daughter, who is fifteen years old, has become entirely incorrigible and that he is unable to control her. Other statements made by him under oath are shown upon a memorandum signed by himself and on file with the papers.</p> <p>“Henry M. Hoyt, President.”</p> <p>“October 11, 1901.</p> <p>“Upon the aforesaid application, and upon sworn statements made to me and affidavits on file of Wm. W. Smith, and Officer O. T. Davis of the police force of the District, I have this day issued an order of committal of said Helen Geddes to the school.</p> <p>“Henry M. Hoyt, President.”</p> <p>EXHIBIT “D.”</p> <p>District or Columbia, )</p> <p>City of Washington, )</p> <p>O. T. Davis, a patrolman in the 9th precinct of the Washington police, being duly sworn, deposes and says that on or about September 1, 1901, when on his beat in the northeast part of the city, he met two young ladies somewhat intoxicated, and on his speaking to them they informed him that they were going to Chinatown with two young men, whereupon he said that they could not do that, and ho would take them home. Accordingly he did so, and while at first thej protested, they finally permitted him to take them home without resistance. Deponent further says that in the course of conversation he learned that the girls were sisters and that the younger one.was Helen Geddes, who volunteered the statements that since her mother’s death she had gotten into bad company and had gone to places where she drank, and that she knew this was wrong, and that she had done wrong in other ways. On arriving at their home, 310 East Capitol street N. E., their father was sitting in the yard, and thanked deponent for bringing his daughters home. Further deponent says not. O. T. Davis, M. P.</p> <p>Sworn and subscribed to before me this 11th day of October, 1901. Henry M. Hoyt,</p> <p>President Reform School for Girls, D. O.</p> <p>EXHIBIT “E.”</p> <p>District of Columbia, )</p> <p>City of Washington. )</p> <p> ss: </p> <p>William W. Smith, being duly sworn, deposes and says that he is a correspondent of the Baltimore Sun, living in Washington ; that he knows Charles W. Geddes and his daughter Helen; that wliile, in his opinion, the said Geddes has failed to guard and train his said daughter properly, and has himself subjected her to evil associations, the present situation and danger of the girl from moral deterioration is such that in order to- save her she should be subjected to the restraint and discipline which the Reform School for Girls offers. And deponent further says that in his judgment, notwithstanding the father’s failure to perform his duty, his application for the admission of his said daughter to the Reform School may properly be acted on and an order of commitment be issued. Wm. W. Smith.</p> <p>Witness: Isabelle G. Smith.</p> <p>Sworn and subscribed before me this 11th day of October, 1901. Henry M. Hoyt,</p> <p>President Reform School for Girls, D. C.</p> <p>EXHIBIT “E.”</p> <p>Reform School for Girls of the District of Columbia.</p> <p>Washington, October 11, 1901.</p> <p>To Miss A. J. Rule, Superintendent of the Reform School for Girls, D. C.: You are hereby directed to take into the Reform School for Girls of the District of Columbia, under the eighth section of “An Act Revising and Amending the Various Acts Establishing and Relating to the Reform School in the District of Columbia,” approved May 3, 1816 (U. S. 1 Rev. Stat. Supp. 103, chap. 90), which act is also applicable to the Reform School for Girls of the District of Columbia (U. S. 1 Rev. Stat. Súpp. 596, chap. 595), Helen Geddes, residing at 310 E. Capitol St. N. E., an incorrigible girl, and to detain her an inmate of said school according to the laws of the United States governing the same. Henr? M. Hott,</p> <p>President of the Board of Trustees of the Reform School for Girls of the District of Columbia.</p> <p>Sections 8 and 9 of the act of Eebruary 25, 1901 (31 Stat. at L. 809, ehap. 118), under which the foregoing proceedings were had, read as follows:</p> <p>“Section 8. That whenever any girl under the age of seventeen years shall be brought before any court of the District of Columbia, or any jndge of such court, and shall be convicted of any crime or misdemeanor punishable by fine or imprisonment other than imprisonment for life, such court or judge in lieu of sentencing her to imprisonment in the county jail or fining her, may commit her to the Reform School for Girls to remain until she shall arrive at the age of twenty-one years, unless sooner discharged by the board of trustees. And the judges of the criminal and police courts of the District of Columbia shall have power to commit to the Reform School for Girls, first, any girl under seventeen years of age who may be liable to punishment by imprisonment under any existing law of the District of Columbia, or any law that may be enacted and in force in said District; second, any girl under seventeen years of age, with the consent of her parent or guardian, against whom any charge of crime or misdemeanor shall have been made, upon proper cause shown to the satisfaction of the court; third, any girl under seventeen years of age, who is destitute of a suitable home and an adequate means of obtaining an honest living, or who is in danger of being brought up, or is brought up, to lead an idle or vicious life; fourth, any girl under seventeen years, who is incorrigible or habitually disregards the commands of her father and mother or guardian, who leads a vagrant life, or resorts to immoral places or practices, or neglects or refuses to perform labor suitable to her years and condition or to attend school. And the president of the board of trustees may also commit to the Reform School for Girls such girls as are mentioned in the foregoing third and fourth classes upon application or complaint, in writing, of a parent or guardian, or relative having charge of such girl, and upon such testimony in regard to the facts stated as shall be satisfactory to him, and for taking testimony in such cases he is hereby empowered to administer oaths.</p> <p>“Section 9. That every girl sent to the Reform School for Girls shall remain until she is twenty-one years of age, unless sooner discharged or bound as an. apprentice.”</p> <p>Petitioner demurred to the return as showing a commitment without due process of law. This was sustained, and judgment entered discharging the petitioner, from which this appeal has been prosecuted.</p>

<p>Hearing on an appeal by the petitioner from an order of the Supreme Court of the District of Columbia quashing a writ of certiorari.</p> <p>The Court in the opinion stated the case as follows:</p> <p>In this case proceedings were instituted before a justice of the peace, under § 20 of the Code of this District, by the appellee George W. E. Slater, as purchaser in a sale under a deed of trust or mortgage which had been foreclosed, to recover the possession of the property which he had purchased, against the appellant, Eliza Brown, who was the grantor or mortgagor in the deed, and who continued to hold possession after the sale and conveyance to the appellee. The appellant, upon being served with process from the justice of the peace, sought and procured a writ of certiorari from the supreme court of the District to remove the cause into that court on the ground of concurrent jurisdiction, under §§ 8 and 9 of the Code. This writ was subsequently quashed, on the ground, it is said, of alleged insufficiency of allegation as to the concurrence of jurisdiction; and an order was entered remanding the cause to the justice of the peace. A motion was made by the appellant to vacate this order, and the motion was overruled. Thereupon the appellant appealed to this court from the last-mentioned order, and the appeal was dismissed on the ground that the order was not appealable. The cause was then remanded by this court to the supreme court of the District for the purpose of being remanded to the justice of the peace to be proceeded with according to law, and it was accordingly sent back to the j ustice of the peace.</p> <p>Immediately a new writ of certiorari was sued out from the supreme court of the District on the same identical ground, that of concurrent jurisdiction; and a return was made thereto. A motion was made on behalf of the appellee to quash the writ, and it was quashed; and an order was entered remanding the cause to the justice of the peace. From this order the present appeal has been taken to this court.</p>

The Court in tbe opinion stated tbe case as follows: The plaintiff in error, Nathan A. Springer, was convicted in the police court under an information filed therein which charged that, on January 1, 1903, and divers other days thereafter, in the District of Columbia, he “did then and there practise medicine, and did then and there publicly profess to do so, without first having obtained” license so to do in the manner required by law.

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

<p>Hearing on an appeal from the 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 of the Court..</p>

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

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

<p>Hearing on an appeal by tbe complainant (specially allowed) from an order of tbe Supreme Court of tbe District of Columbia overruling a motion by tbe complainant that the cause be referred to an examiner to take testimony therein, the defendant having theretofore filed an answer to the petition denying the jurisdiction of the court to grant the relief prayed.</p> <p>The Court in the opinion stated the case as follows:</p> <p>Tin's case is here on special appeal allowed from an order of the court below refusing to the petitioner the right to take testimony in support of the allegations of her petition, upon the ground that the court was without jurisdiction to hear and determine the case presented by the petitioner who seeks a divorce a mensa et thoro from her husband.</p> <p>The petition is filed by a wife, the appellant, Amelia Maschaur, against her husband, the appellee, George W. Maschaur, for a divorce from bed and board of her husband, because of alleged cruelty of treatment by the husband. The husband answered the petition, and set up former adjudication of the cause alleged as to part of the time covered by the petition, and denied the allegation of cruel treatment as to the residue of the time embraced by the allegations of the petition; and he also denies that the court has jurisdiction to grant the relief prayed, because, as he alleges, there is no statute or law that gives the court jurisdiction in such case as that presented by the petitioner. And that appears to have been the opinion of the court below, and the application for an order to take testimony on behalf of the petitioner was accordingly refused; and from such refusal this appeal is taken.</p> <p>The sole question, therefore, on this appeal is, whether the court below committed error in refusing to allow testimony to be taken, and that question depends upon the construction of the provisions of the Code for this District, in relation to the subject of divorce; — the former law upon the subject having been changed by the adoption of the Code.</p>

<p>Hearing on an appeal (specially allowed) by the defendant from an order of the Supreme Court of the District of Columbia «enjoining, pendente lite, the use of a trade or business name.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This ease is brought here on special appeal allowed under § 7 of the act of Congress of February 9, 1893. The appeal is from an interlocutory order of the supreme court of this Disr trict, dated 23d day of July, 1903. By the order appealed from the appellant, the Original La Tosca Social Club, the defendant in the court below, was enjoined, until the final determination of the cause, from using or causing to be used, in any manner whatever, the name of “Original La Tosca Social Club,” or “La Tosca Social Club,” or any variation thereof; and the order further restrained and enjoined the defendant, its members, etc., from advertising, running, or causing to be run, any excursion or excursions, under the name of “Original La Tosca Social Club,” or “La Tosca Social Club,” — the complainant, the La Tosca Social Club, claiming that the assumption and us© of such name by the defendant is a violation of a right of a business or trade name acquired by the complainant. The corporate names of the respective corporations, plaintiff and defendant. are not identical, bnt it is claimed on the part of the complainant that there is such close similarity between them as, in connection with other facts, makes it liable to and which will produce confusion, and will enable the defendant to appropriate the business and patronage that would otherwise be enjoyed by the complainant.</p> <p>The case can be best understood from a statement of the facts as alleged in the bill and answer, — the order appealed from having been made upon bill, answer, and affidavits filed.</p> <p>The plaintiff, an incorporated club, filed its bill of complaint against the defendant, the present appellant, also an incorporated club, on the 11th day of June, 1903, in which bill it is alleged that about the year 1895, and for several years thereafter, a number of young men of this District, for purposes of mutual improvement and promotion of social intercourse^ formed and maintained an association which was called “La Tosca Social Club,” of which Andrew Peters, Samuel Taylor, and John W. Miller were members, and who are now officers of the complainant corporation; that said original association continued in existence from prior to January 1, 1897, down to the date of the plaintiff’s incorporation, viz., the 20th day of February, 1903.</p> <p>That shortly after the incorporation of the plaintiff the preexisting, unincorporated association, known as “La Tosca Social Club,” was discontinued. That prior to the incorporation of the complainant, the original unincorporated association or club consisted of twelve members, to wit, Elphonso Freeman, the present president of the defendant, and certain others named. That said original club derived some revenue from its business of teaching dancing and giving balls, and getting up excursions; and that about the 20th of February, 1903, it was deemed advisable by members of said club that the same should be incorporated, and that said club was incorporated by articles and' certificate signed and acknowledged by three members of the said club, the same being members above named, that is to say, Andrew Peters, Samuel Taylor, and Albert Johnson. That shortly after the incorporation of the plaintiff the unincorporated “La Tosca Social Club” was discontinued, and that the plaintiff corporation continued to carry on its affairs-, and that it had advertised an excursion to take place on Monday, Juno 22, 1903. That shortly after the incorporation of the plaintiff Elphonso Freeman and five others withdrew from said club, and severed their connection therewith, not having anything to do with the corporation; and that these seceding members, in fraud of the rights of the plaintiff corporation to the exclusive use of the name “La Tosca Social Club,” did, on or about the 20th day of March, 1903, form an association known as the “Original La Tosca Social Club,” the same being the defendant corporation, and that the certificate of incorporation was duly recorded. The plaintiff corporation then alleges that- the defendant club was incorporated for the purpose of fraudulently using the good name, good will, and well-earned reputation of the plaintiff corporation, in its said name, “La Tosca Social Club,” and for the purpose of deceiving and defrauding the public and patrons of the plaintiff into believing “that when they, the said patrons of complainant club and the public, attended the meetings, excursions, and balls given by the defendant club, that they were attending the dances, balls, and excursions of the complainant club; that said defendant ‘Original La Tosca Social Club’ was incorporated under the said name for the sole and only purpose of deceiving, defrauding, and falsely leading- the patrons of the complainant club into the belief that the defendant was in fact the successor of the said ‘La Tosca Social Club,’ which was organized in the year 1895, and had gained good repute and a business good will, worth many hundreds of dollars, by the good conduct of its members- at the excursions and balls given under the auspices of said club.”</p> <p>That by reason of these and other facts the complainant prays that the defendant club be enjoined, etc.</p> <p>A rule to show cause why an injunction should not be issued as prayed was entered, and the defendant appeared and filed its answer to the bill.</p> <p>The defendant, by its answer, in substance, denies every material allegation of the bill except the fact that the complainant was incorporated at the time stated in the bill; but which act of incorporation the answer avers was obtained by stealth and secret means, and without any knowledge or warning whatever being given to the other members of the unincorporated association, and that the first knowledge received of the existence of that corporation by the parties who constitute she present defendant corporation (all of whom are members of the original unincorporated club) was that they saw the notice of said incorporation in the newspapers; and at the next meeting of the club the attention of said three members was called to this fact, but the incorporators made no explanation other than to say that they had incorporated and meant to run the club as they pleased, and that if the other members wished to join they would be required to send in applications to be passed upon by the complainant club. Thereupon, the defendant, while- admitting the fact of its incorporation some time after the incorporation of the complainant club by three of the members of the original unincorporated association, utterly denies all fraud or intention to mislead or deceive anyone on its part, but charges fraud and deception on the part of the complainant. The bill calls for an answer under oath, and the answer was accordingly filed with the affidavit of the president of the defendant club attached.</p>

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

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

<p>Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, upon the verdict of a jury in an. action to recover damages for personal injuries.</p> <p>The Court in the opinion stated the case as follows:</p> <p>The appellee, George W. Patton, instituted suit in the supreme court of the District of Columbia as plaintiff against the appellee, the Chesapeake and Ohio Railway Company, as defendant, to recover for personal injuries sustained by him in a collision on the railroad of the defendant at Nuttallburg, in the State of West Virginia. It was alleged in the declaration that the plaintiff was on the train of the defendant company, on November 11, 1899, as a postal clerk in the service of the government of the United States, engaged in the transportation of the mail from Newport News, in the State of Virginia, to Covington, in the State of Kentucky; that through the gross negligence of the railway company and its employees, a collision occurred at the place above mentioned, Nuttallburg, in West Virginia, between the train and a freight car on the track of the defendant’s railway; and that, by the collision thus caused through the negligence of the defendant, the plaintiff was injured; and he claimed $10,000 as compensation for his injuries.</p> <p>The defendant company demurred to the declaration, on the-ground, as stated, that, the declaration being in trespass, the defendant was not liable as a common carrier to tbe plaintiff, inasmuch as the latter was not a passenger at the time of the alleged injury. This demurrer was overruled; the defendant excepted to the ruling, and upon its motion leave was granted to it to plead over. It did accordingly interpose two pleas as a defense to the suit The first of these was the general issue, “not guilty;” the second was to the effect that, inasmuch as the plaintiff was on the train as a postal clerk in the service of the United States, under a contract between the latter and the railway company, the company, as to him, was only required to use ordinary care and not the highest degree of care and skill.</p> <p>The plaintiff joined issue with the defendant on the first plea, and demurred to the second, on the ground that it tendered an immaterial issue, was argumentative, and amounted to the general issue. This demurrer was sustained, and the defendant again noted an exception to the ruling of the court.</p> <p>All these proceedings were had in the year 1901, between the 14th of February and the 15th of June of that year. The parties then went to trial upon the declaration and the plea of the general issue in the beginning of January, 1903, and upon the trial the jury rendered a verdict for the plaintiff in the sum of $3,000. A remitter of $1,500 of this amount was required by the trial court as a condition for the refusal of a motion for a new trial, to which the plaintiff acceded; and thereupon the motion for a new trial, and also a motion in arrest of judgment, which had been interposed, were both overruled, and judgment was entered on January 27, 1903, for the sum of $1,500. Appeal was noted in open court three days afterwards, and the penalty of the appeal bond was fixed. Subsequently, counsel for the defendant, on April 4, 1903, filed an abandonment of the motion in arrest of judgment.</p>

<p>Hearing on an appeal by tbe complainants from a decree of the Supreme Court of the District of Columbia in a suit to enjoin the erection of buildings upon certain land.</p> <p>Tbe Court in tbe opinion stated the case as follows:</p> <p>On May 28, 1860, Richard Pettit, being then' tbe owner of lot No. Ill, in Beatty and Hawkins’ addition to the city of Georgetown, now a part of tbe, city of Washington, which lot fronted 96 feet on the street now known as O street, conveyed the east half thereof, fronting 48 feet on O street and improved by a three-story brick dwelling house, to Eichard P. Jackson, a member of the bar of this District. The deed of conveyance contained this covenant:</p> <p>“The said parties of the first part (Eichard Pettit and his wife), for themselves; their heirs, executors, and administrators, by these presents covenant, promise, and agree to and with the party of the second part, his heirs and assigns, not to obstruct the windows lying and being in the west or gable-end walls of the said three-story brick house situated upon the said described premises, but that the said party of the second part,, his heirs and assigns, shall use and enjoy the said window lights in perpetuity forever, as they are now used and enjoyed, and that the said party of the second part, his heirs and assigns, shall and may at any time and at all times enter upon the lot lying west of the said three-story brick house for the purpose of repairing his windows, walls, or lightning rod belonging to the said building.”</p> <p>Eichard P. Jackson went to reside in the house, and continued to reside there until his death on August 14, 1891; and it has since that time continued to be the home of his family. His right and title have become vested in the appellants, — the legal title in Lewis Jackson, trustee, and the beneficial ownership in the other appellants.</p> <p>Subsequently to the conveyance to Jackson, Pettit conveyed to other parties the west half of the same lot No. Ill, which had on it a small frame structure about 20 feet in height, about 20 feet in width, and standing about 21 feet west from the west wall of the Jackson house and about 1 feet from the side street (Frederick, now 34th street) ; and his right and title to this west part of the lot have, by divers mesne conveyances, become vested in the appellee, Daniel E. Eli.</p> <p>The situation and condition of the whole property remained practically unchanged from the time of Jackson’s purchase, in 1860, down to April of 1900. In April of 1900 Eli commenced to remove the frame structure on his west half of the lot, and commenced the erection of several buildings thereon in such close proximity to the Jackson house that, if they were allowed to go on, the necessary result would have been to close the windows in the west wall of that house, to deprive its occupants of the light and air wdiich they received through those windows, and which were necessary for the proper enjoyment of the house, and to deprive them of their right under the covenant with Pettit to enter upon the west half of the lot for the purpose of repairing the windows, walls, and lightning rod belonging to said building. Thereupon the appellants filed their bill in equity in the supreme court of the District to enjoin the appellee, Eli, from erecting any buildings upon his west half other than as existed at the date of the deed from Pettit to Jackson, in 1860. This bill was filed on April 27, 1900.</p> <p>A restraining order was issued in accordance with the prayer of the bill, and it seems to have been followed in due time by an injunction pendente lite, the terms of which do not appear in the record before us. On September 3, 1902, Eli answered the bill, and in his answer admitted that at the time of the institution of the suit he was about to erect buildings on the west half of the lot that would have closed the windows of the complainants in the hnilding on the eást half of the lot and prevented the complainants and all other persons from entering upon the west half of the lot for the purpose of the repair of the windows, walls, and lightning rod of the complainants. He admitted also that, under the covenant between Pettit and Jackson, the owners of the east half of the lot were entitled to a reasonable use of so much of the west half as might be necessary for light and air, and for ingress tbereon for the purpose of repair, as provided in the covenant; bnt he claimed that it would be inequitable to require him to leave the -whole space between the Jackson house and the site of the old frame structure vacant and unoccupied; that this was not contemplated by the covenant and was not required for the beneficial enjoyment of the property of the complainants.</p> <p>Testimony was taken on both sides. That on behalf of the complainants was directed mainly toward showing the conditions that had existed from the year 1860 to the year 1900. The-substantial part of the testimony for the defendant was his own statement that he had no actual knowledge of tire covenant between Pettit and Jackson until he was advised of it by this suit, and the statements of two architects to the effect that a space of 3 feet and 6 inches, or even less, would be ample space for light and air between the buildings if they were erected on that lot.</p> <p>A decree was rendered to the effect: (1) That the injunction previously granted should be dissolved; (2) that the defendant, should recover from the complainants and their sureties on the injunction bond or undertaking such damages, if any, as were-occasioned by the wrongful suing out of the injunction; (3)' that the defendant should be perpetually enjoined from erecting on the west half of the lot any building at a distance less at any point than 3 feet and 6 inches from the Jackson house; (4) that the complainants should recover costs from the defendant.</p> <p>This decree, although in great- part apparently in favor of the complainants, was substantially in favor of the defendant; and. the complainants have accordingly appealed from it.</p>

Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia in a suit in equity to substitute a trustee under a deed of trust.

Hearing oh an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia in an action on a piomissory note tried by the court, trial by jury having been waived by the parties.

<p>Hearing on an appeal by the defendants from a decree of the Supreme Court of the District of Columbia in a statutory proceeding in equity to establish title by adverse possession to a certain tract of land.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This is a suit instituted on the equity side of the supreme court of the District of Columbia by the appellee, Elizabeth Thomas, as complainant, under § 111 of the Code and the general jurisdiction of a court of equity, to establish her title by adverse possession to a tract of land in the county of Washington,, in the District of Columbia, outside of the ancient municipal limits of the city of Washington.</p> <p>It appears from the record that, previously to February 8,. 1862, one Elizabeth Butler, an old colored woman, died in this. District seised and possessed of a considerable tract of land in the county of Washington, which included the tract in controversy in this suit, and leaving a will, which was filed in the office of the register of wills for the District, and duly admitted to probate on February 8, 1862, which was duly executed for the conveyance of real estate, and whereby she devised her property to her children and grandchildren in certain portions: First,, to her son George Butler she gave 6 acres of land in two adjoining tracts, each containing about 3 acres, upon one of which it seems, he had a house and resided at the time. Next, to the two children of a daughter Ellen, named Sarah and Elizabeth,, she gave a tract of 8 acres with a house upon it, in which Sarah resided at the time. In the third place, to the three children of a daughter Eliza, named George, Sarah Catherine, and Elizabeth, and of whom the last named is the appellee in this suit— the said Eliza herself, whose name by marriage was Proctor, presumably being dead at the time — she gave a tract of 8 acres, whereon was the dwelling house in which the testatrix resided, and in which Elizabeth Thomas or Elizabeth Proctor resided with her grandmother. Of these three children of Eliza Proctor, one, George Proctor, died about the year 1882, unmarried and Avithout children or issue; and one, the daughter Sarah Catherine, who became Sarah Diggs, died about the year 1887, leaving no children or issue surviving her. She had a husband; but whether he survived her or not does not appear, and it is immaterial, since it appears that he also died long before the institution of this suit. By these deaths of George Proctor and Sarah Diggs their interests under the xvill of their grandmother are presumed to have become vested in their surviving sister, Elizabeth Proctor, who became Elizabeth Thomas, the appellee in this case.</p> <p>In the fourth place, to the two children of a daughter Jane she gave all the rest and residue of the land oxvned by her in the county, after the reservation of a small lot for a family burial place; and, after some other devises and bequests not necessary to be here specified, she gave to her daughter Ellen and her son James Butler all her real estate in the city of Washington, where she seems also to have had some holdings.</p> <p>She then named Alfred Ray, Esquire, of this city, as the executor of her will, “to carry into effect the several devises and bequests” therein mentioned, according to the language of the will itself.</p> <p>As already stated, this xvill was admitted to probate on February 8, 1862. It contained no specific description by metes and bounds of any of the allotments, and no designation by which their limits could be accurately determined. But on December 20, 1877, the executor, Alfred Ray, assuming and purporting to act under the power supposed to be vested in him by the will, executed and delivered to the parties in interest deeds of conveyance by metes and bounds of their several portions of the estate. One of these deeds was to the heirs of George Butler, who had died about March, 1867. This deed was to Mary O. Shamwell, Harriet Jackson, Caroline Jones, and George Butler, Jr., as such heirs, conveyed 6 acres to them in accordance with the will, and described it substantially the same as the property here in controversy.</p> <p>A second deed, also purporting to convey 8 acres in accordance with the will, was executed by Ray to Elizabeth Thomas (the appellee here), George Proctor, and Sarah Catherine Diggs. This property adjoined that mentioned in the previous deed, to the east. And a third deed, conveying 8 acres to the west of the property in dispute, was executed by the executor to Sarah Matthews and Elizabeth Savoy, the children of Ellen, daughter of the testatrix, Elizabeth Butler.</p> <p>Eor the purpose of the execution of these deeds, Ray had caused a survey to be made. The purpose of the survey and the deeds evidently was to identify with certainty and by metes and bounds the several tracts which in the will had been granted loosely and without accurate identification. We may presume that these deeds were accepted by all the parties in interest. They seem to have made the record title complete in the several grantees.</p> <p>Elizabeth Thomas, the appellee here, and one of the three children of Eliza Proctor, who received what may be designated as tire eastern tract, with the dwelling thereon, in which she had resided with her grandmother, continued to occupy this tract of 8 acres, and has occupied it down to the present time, although it is understood to be without fencing or inclosure of any kind. Also under the mistaken impression that about 3 acres, constituting the eastern part of the middle tract, which had been allotted by the will and the executor’s deed to the heirs of George Butler, was part of her tract of 8 acres, she occupied this part also, has cultivated it, or part of it, from year to year in a fashion, and * has continued to hold it in that way from the year 1862 to the present time. This is the part of the property to which she now in these proceedings seeks to establish a title in herself by adverse possession. In one of the plats filed in the cause it is designated as lots 3 and 4, each containing about 1 acre and a half, lot 4 being the eastern half, and lot 3 the western part, of the disputed territory. The lots are partly cleared land and partly woodland. At the edge of the woodland and separating it from the cleared portion are remnants of rifle pits used during the Civil War.</p> <p>In her bill of complaint the appellee alleges that she is and has been in actual occupation and possession of these two lots 8 and 4 for thirty-eight years and upwards, describing them by metes and bounds, and she claims to have acquired a good title to them by adverse possession to the exclusion of all other persons, but that there are certain defects and irregularities constituting a cloud thereon and against which she claims to have her title established. These alleged defects and irregularities consist of a certain deed from Clarence E. Norment to the defendant, Edward D. Johnson, purporting to convey the land in dispute in fee simple, and a deed of trust thereon from Johnson to the defendants Swormstedt and Bradley, as trustees, to secure the payment of $2,500 to the defendant Bussell. Johnson, Swormstedt, and Bradley, and Bussell are made defendants to the bill, the prayer of which is that they be all enjoined from setting tip title, and that the title of the complainant be decreed to be complete and perfect.</p> <p>The defendants answered denying the occupation and adverse possession of the complainant, and, while not distinctly claiming the title to be in themselves, admitted the conveyance from Nor-men* and the subsequent deed of trust, and averred that the title in Norment had previously been pronounced to be good.</p> <p>Much testimony was taken. In the course of it the facts that have been stated were developed. It was also developed that the title of Norment was based upon three or four tax deeds, which, so far as this record shows, would appear to have been utterly worthless for the conveyance of title, and upon a quitclaim deed procured by Norment in the year 1897 from two of several heirs of George Butler, whereby they relinquished to him all their right and title in lots 3 and 4.</p> <p>It appears that at the time of the execution of this quitclaim deed to Clarence E. Norment, the legal title of record, so far as we can gather from the testimony in this case, was outstanding in Samuel Norment, who was the father of Clarence E. Norment, and in the heirs of Georg’e Butler; and the record does not disclose how the title of Samuel Norment became vested in Clarence F. Norment, if it did become vested in him. Samuel Norment seems to have become interested in the property in consequence of a judgment which he had obtained against the younger George Butler, a levy and sale thereunder by the United States marshal for this District, and a conveyance to him by the marshal. The interest of the younger George Butler thus vested in Samuel Norment, if the proceedings' were valid, was an undivided one-fourth interest in the middle tract, wherein, on the land records, he was a tenant in common with his three sisters, Mary C. Shamwell, Harriet Jackson, and Caroline Jones.</p> <p>In pursuance of a remarkably irregular and defective equity proceeding, designated as No-. 6818 on the equity docket of the supreme court of the District, which was initiated and consummated on the same day, June 7, 1879, deeds in the natureof deeds of partition and quitclaim were executed between Samuel Norment,' claiming to hold the title of the younger George Butler, Mary C. Shamwell, Caroline Jones, and the heirs of Harriet Jackson, who-, it seems, was herself dead at the time. These heirs were four in number, George W. Jackson, Clara P. Jackson, Margaret G. Ewell, and Alphonsus L. Jackson, children of Harriet Jackson, of whom the two last named appear to have been minors, and are stated to have been such in the equity suit No. 6818. In that suit one James H. Shamwell was appointed trustee to convey for them. Three deeds were then executed, all dated on June 12, 1879. One purported to convey lot No. 4 to Samuel Norment; another, to convey lot No 1 to Mary O. Sham-well; and a third, to convey lot No. 2 to Caroline Jones. There had been some anticipation of the equity suit in regard to lot No. 3; for by a deed dated May 29, 1879, that lot had been conveyed by some of the other parties to George W. Jackson and others.</p> <p>Thus, as far as we were advised by the proceedings in the case as shown in the record before the court at the time of the argument, the title would seem to have stood on the land records of the District at the time of the commencement of this suit-. But evidently the proceedings are incomplete in this regard. It is clear that they are so in one particular at least. Samuel Norment appears to have died in the year 1891; and it does not appear what became of his title. It seems probable that it became vested in Clarence F. Norment; but there is no sufficient proof of this in the record.</p> <p>Upon the pleadings and the testimony in the case a decree was rendered in accordance with the prayer of the bill of complaint. It was decreed that the complainant was vested with a fee-simple title to the premises in controversy by adverse possession, and the defendants were enjoined from setting up any_ claim of title against her.</p>

<p>Hearing on an appeal by the use plaintiff from a judgment df the Supreme Court of the District, of Columbia in an action on the bond of a contractor with the United States.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal by the use plaintiff from a judgment of the Supreme Court of the District of Columbia in an action on a bond, of a contractor with the United States.

Hearing- upon an appeal by the defendant from a summary judgment of tbe Supreme Court of tbe District of Columbia, for tbe plaintiff for want of a sufficient affidavit of defense in an action to recover upon a contract for professional services rendered the plaintiff’s testator.

<p>Hearing on an appeal by the complainants from a decree of the Supreme Court of the District of Columbia, dismissing a bill in equity to enjoin the prosecution of suits before a justice of the peace.</p> <p>The Court in the opinion stated the case as follows:</p> <p>The appellants, Waggaman and Coldenstroth, are residents of the District of Columbia, and formerly were engaged as partners in the retail shoe business in this city. The appellees, George E. Keith Company, which is a corporation under the laws of the State of Massachusetts, and Lewis A. Crossett, both of them manufacturers of shoes, or wholesale dealers in them, are residents of the State of Massachusetts. On April 20, 1900, the appellants resolved to go out of business. At that time they were indebted to the Keith Company for shoes in the sum of $541.80, and to Crossett also for shoes in the sum of $331.50; and they had in their place of business in this city a stock of shoes purchased from these two appellees and one Heywood of the cost value, it is said, of $810.60, and stated to be of the value of $945 at retail. All their debts seem to have been paid, except their liabilities to the two appellees and to their landlord for rent, the amount of which does not appear in the record.</p> <p>On the day specified, one George H. Leach, an agent for the Keith Company, had an interview with the appellants at their place of business in this city in reference to a settlement of their accounts with the Keith Company, and some agreement would seem to have been reached about the matter. The agreement was oral, and the terms of it are now in controversy between the parties. The appellants claim that it was to the effect that the appellee, the Keith Company, would take the stock of goods in full settlement of its own claim and that of Crossett, which latter it is claimed it undertook to pay; and that, if the Keith Company made a profit from the transaction, it should be entitled to retain it; but that, if it should sustain a loss, it should bear that loss as its own. On the other hand, the Keith Company claims that the agreement was that it would take back so much of the stock of shoes as it had itself sold to tire appellants, obtain for it the best price that it could, and credit the proceeds of sale on account of the indebtedness of the appellants to the company; that, while arrangements were being made for the transportation of the shoes to Massachusetts in accordance with the agreement, one Betz, an agent for another retail dealer in Washington, appeared upon the scene and offered to' take the stock at seventy (70) per cent of the invoice price; that the agent of the Keith Company accepted the proposal in the presence of one of the appellants; that at the same time it was agreed between Waggaman, Betz, and Leach, that Betz would take for his principal the residue of the stock, consisting of the goods which had been supplied to the appellants by the manufacturers, Crossett and Heywood, at the same figure, 70 per cent of the invoice price, provided Crossett consented; that this arrangement was consummated, and Betz took the whole stock for his principal.</p> <p>The Keith Company received from the purchaser, as it claims, $505.13 on its own account, leaving a balance due to it, or a loss on the transaction, as the case may be, of $36.67; and seems to have received the sum of $83.16 on account of Crossett, which it turned over to him, and which left unpaid of the claim of the latter the sum of $248.80. There is apparently some discrepancy in the record in regard to these figures; but it is of no consequence in the determination of the questions raised by the appeal.</p> <p>Demand seems to have been subsequently made by the Keith Company upon Waggaman, or upon Waggaman and Coldenstroth, for the payment of their balance of $36.67; and Waggaman, in a letter to the Keith Company under date of June 5, 1900, apparently without the knowledge and consent of his former partner, promised to pay it, as soon as they could get through the matter of the settlement of their rent with their landlord. This settlement with the landlord seems to have been effected; but the claim of tire Keith Company was not paid, nor was that of Crossett. Suit was then instituted before a justice of the peace by the Keith Company against the appellants as defendants on November 19, 1900, for the sum of $36.67; and another similar suit was instituted before the same justice by Crossett against the appellants on the same day for the sum of $248.84.</p> <p>These suits appear to have been permitted to lag in the court of tire justice. In the course of them the depositions of Crossett, Crossett’s manager, one Thayer, and Leach, the agent of the Keith Company, were taken for use in the trial. On October 30, 1901, while the suits were pending, the present proceedings were instituted by the tiling of a bill in equity by the appellants as complainants for an injunction against the prosecution of the suits before a justice of the peace, and for an adjustment by the court of equity of the matters in dispute. The bill of complaint of the appellants and the answers thereto of the appellees set forth their respective versions of the transaction, as hereinbefore stated. The answer of Crossett denies that he gave authority to any person to settle for him for any amount less than the full amount of his claim.</p> <p>By agreement between the counsel of the parties, the case was heard in the court below upon the bill and answers and accompanying affidavits and the depositions taken for use before the justice of the peace; and upon the hearing the bill of complaint was dismissed without prejudice to the right of the complainants to present their contentions in the actions at law pending before the justice of the peace, or that might thereafter be brought by the appellees against them.</p> <p>From the decree of dismissal the complainants have appealed to this court.</p>

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia upon the verdict of a jury, in an action to recover rent claimed to be due under a lease.

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

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

<p>Hearing- on an appeal by the defendant from a judgment of tlie Supreme Court of the District of Columbia on the verdict oí a jury in an action to recover damages for breach of an implied warranty.</p> <p>The Court in the opinion stated the case as follows:</p> <p>The proceedings in this cause were originally instituted before a justice of the peace. They were then removed, we presume by appeal, to the supreme court of the District of Columbia, where the cause was tried de novo by the court with a. jury,, and there was a verdict for the plaintiff, upon which judgment was entered.</p> <p>It appears that the appellee, E. S. Gundersheimer, who was the plaintiff in the court below, is engaged in business in this city as a baker, having a place of business on Second street and a stand in the Center Market, where he sells cakes and other products of his bakery; that for the purpose of baking he uses large quantities of eggs; that the appellant, Armour & Company, stated to be a corporation, and apparently a corporation of some other State doing business in this District, is engaged, among other enterprises, in the collection and freezing of eggs for preservation, for which it makes contracts of sale, with agreement for delivery during the winter months, when such eggs appear to be most in demand by the bakers, and that the appellee purchased from an agent of the appellant several cans of frozen eggs, under an implied warranty that they were sound and fit for the use of the appellee in his business, when in fact they were unsound and unfit for such use, and the appellee was injured in his business by the use of them.</p> <p>It seems that in May, 1901, an agent of the appellant sought the appellee, and offered to sell him eggs in cans for baking purposes to be delivered to him during the winter; that a contract was thereupon made between them; that this contract was evidenced by an order signed in duplicate by the appellee upon blank forms contained in an order book, presented by an agent of the appellant, one of the copies being retained by the appellee; that the contract was made upon the condition that the eggs should be of first-class quality, frozen eggs in cans; that the contract was to last for a year, and the eggs were to be delivered to the appellee at such times and in such quantities as the latter should require. Some time in or about the following winter— the precise time does not appear in the record, but it seems to be assumed to have been in December of 1901 — two cans of frozen •eggs were delivered by the appellant to the appellee at the place of business of the latter on Second street, where a foreman of the appellee was in charge, while the appellee himself was away attending to business at his stand in the Center Market. These eggs were not good; but they were used by the foreman in baking cakes during the day of their delivery. In the evening, when the appellee came home from the market, the foreman told him that the eggs were not in as good condition as the eggs which Jie had been previously using. The appellee says that he regarded the statement as a joke. líe did not test the eggs or the cakes into which they were made himself, for the reason, as he said, that his sense of smell had been impaired; and the cakes were thereafter sold in the market. They were so bad that many of them were returned, and the appellee lost some customers in consequence of the fact, and was injured in his business.</p> <p>Subsequently the appellee had other consignments of frozen eggs from the appellant, some of which were returned because they were bad, and Armour & Company received them back. The appellee was compelled to go into the market and purchase other eggs for his business. Besides Armour & Company there was. only one other person or firm dealing in frozen eggs in the District, and from that firm the appellee was unable to procure what he desired. He had to purchase fresh eggs from various persons, at enhanced prices. Thereupon he instituted the proceedings against the appellant, Armour & Company, which are now before us for review.</p> <p>His bill of particulars contains three items of claim: (1) The’ difference in the cost price between 50 cans frozen eggs at $4.25 per can and 10 cans of whites at $4.75 per can, which had been ordered from Armour & Company, and the price paid in open market for a quantity of case eggs bought, which difference is stated to have been $129.03; (2) the price of the cakes that hadi been spoiled, stated at $19.10; (3) damages from loss of customers stated to have been $150 — in all, $298.13. The case was. submitted to the jury under instructions from the court; and. the jury returned a verdict for the plaintiff in the sum of $237,. upon which judgment was entered. Upon exceptions by the de fendant to the rulings of the trial court on the instructions requested, he has brought- the case here by appeal.</p>

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

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

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

<p>Hearing on an appeal and a cross-appeal from a judgment of the Supreme Court of tbe District of Columbia in an action to recover damages from the District of Columbia for an alleged nuisance in the maintenance of a certain sewer and for a diversion of water.</p> <p>Tbe Court in tbe opinion stated the case as follows:</p> <p>This action was instituted in the court below by tbe plaintiffs, Cropley, Boteler, and Crampton, appellants in this court, against the District of Columbia, for an alleged nuisance in maintaining a certain sewer, and the diversion of water from a tail race, the original sewer, in the city of Georgetown, in said District.</p> <p>The declaration contains three counts. To this declaration the defendant pleaded the general issue plea of not guilty, and the statute of limitations.</p> <p>Upon trial, verdict and judgment were rendered for the defendant on the first and third counts of the declaration, and for the plaintiff for one cent damages on the second count of the declaration; and judgment was entered thereon; and, upon exception taken, appeals were taken by both parties to this court.</p> <p>By the first count of the declaration, it is alleged that the plaintiffs were lawfully seised and possessed of certain parts or parcels of land known and distinguished upon the public plats and plans of the former city of Georgetown, in the District of Columbia, as and being lots 27, 28, and part of lot 29, of what are called the “water lots,” the same being within the metes and bounds set forth in said first count, and which description is the same contained in a certain deed, given in evidence, made by the Commissioners of the District of Columbia to the plaintiffs, on the 12th day of January, 1885; that there was a wharf or dock built thereon by the plaintiffs, some time after the date of the deed just referred to, in order that access by water might be had; and that, upon said land, there was flowing a stream of water which could and would have been used as a source of water power; and that the defendant intending to injure the-plaintiffs, and to deprive them of the use of said premises, and particularly of said water power, on, etc., wrongfully and injuriously kept and maintained a certain public sewer, etc., and by means of said sewer, etc., unlawfully, etc., discharged into said stream, and over, upon and across said land and premises of the plaintiffs, large quantities of sewage, and whereby also large quantities of earth and sewage were deposited in the Potomac river immediately in front of, and adjacent to, plaintiffs’ said wharf, so as to injuriously interfere with access to said wharf and premises by water; and whereby also offensive gases emanating from said sewer were carried to, on, and over the plaintiffs’ said premises, to their great damage.</p> <p>By the second count of the declaration the premises are described as in the first count, and the wrongs alleged are: That at the time of committing the grievances by the defendant, complained of by the plaintiffs, there was flowing a stream of water, which, but for the committing of the wrongs by the defendant, could and would have been used as a source of water power of great force, to wit, of certain mentioned power and value, and had a great annual rental value, yet the defendant, well knowing the premises, but injuriously and wrongfully intending to deprive the plaintiffs of the use and benefit of their said water power, did, on, etc., unlawfully enter upon said land and premises of the plaintiffs, and wrongfully and injuriously, by means of a certain covered ditch or pipe constructed by the defendant, from a point near the northern line of said premises of the plaintiffs, and thence for a distance of, to wit, 25 feet, through the said land of the plaintiffs to the adjoining premises on the west, and thence to the Potomac river, diverted, and ever since that date has continued to so divert, all of said stream of water from said land and premises, etc., into and through said ditch or pipe constructed by the defendant to the Potomac river; in consequence whereof, said water power ever since the said 15th day of January, 1899, has been entirely taken away from the said land and premises of the plaintiffs,— whereby the plaintiffs have been deprived of any benefit, use, or enjoyment of or from a large portion of tbeir said land and premises, and from using or leasing tbe said water power, etc.; from all which effects of said wrongful acts of the defendant, the value of the annual rental of said land and premises has been greatly depreciated and rendered of no value, etc.</p> <p>The third count of the declaration states and describes the premises as in the first, and then alleges that thereon there was flowing a stream of water, which, but for the wrongs alleged, could and would have been used as a source of water power of great force and value, yet the defendant, well knowing the premises, but contriving and wrongfully intending to injure the plaintiffs, and to deprive them of the use, benefit, and enjoyment of said premises and appurtenances, and particularly of said water power, on the 23d day of November, 1896, and thenceforth to January 15, 1899, wrongfully and injuriously kept and maintained a certain public sewer, having an outlet at or near the northern line of said premises, and by means of said sewer the defendant continuously from, to wit, the 23d day of November, 1896, to the 15th day of January, 1899, wrongfully and injuriously discharged into said stream, and over and upon the land of the plaintiffs, large quantities of sewage, night-soil, and other filth, and theretofore wrongfully entered upon said land and premises of the plaintiffs, and wrongfully and injuriously, and by means of a certain covered ditch or pipe, constructed by the defendant, from a point near the northern line of said premises of the plaintiffs, and thence for a distance of 25 feet through the land of the plaintiffs to the adjoining premises on the west, and thence to the Potomac river, diverted, and ever since said last-mentioned date, has continued to divert, all of said stream of water from said land and premises of the plaintiffs, into and through said ditch or pipe to the Potomac river; in consequence of which said wrongful and injurious diversion of said stream the said water power was thereby entirely destroyed, etc., whereby, and. by reason of all such wrongful and injurious acts of defendant, lai*ge quantities of earth, sewage, filth, sand, and other solid material, were deposited in the Potomac river immediately in front of and adj a-cent to the plaintiffs’ wharf, between the 23d day of November, 1896, and the 15th day of January, 1899, so as to injuriously interfere with access to said wharf and premises by water; and whereby also, during said period, offensive and ill-smelling gases emanating from said sewer, and from the matter discharged therefrom, were carried to, on, and over the plaintiffs’ land and premises, whereby the plaintiffs from the time aforesaid were deprived of any benefit, use, or enjoyment of or from a large portion of their said land and premises, and from using or leasing the same with the water power thereon, etc., and thereby the land and premises of the plaintiffs were greatly depreciated and lessened in value.</p> <p>In support of the case as set forth in the several counts in the declaration, the plaintiffs read in evidence two acts of Congress, an original and amendatory act,— the first being an act approved March 3, 1881, and the second approved April 1, 1882. By § 3 of the last-mentioned or amendatory act, it is provided: “That the Commissioners of the District of Columbia he and they are hereby authorized and empowered to sell and convey, to the highest bidder, at public auction, the following-named property, belonging to the said District of Columbia, in Washington City: Lot 3, square 382, part of lot 3, square 490, and parts of lots 1 and 17 in square 372; and also the following-named property in the city of Georgetown, belonging to said District: Fish-Wharf, on square 6, part of lots 47, 48, and 49 in square 30, and part of lot 245 in square 99.”</p> <p>The plaintiffs also read in evidence § 12 of the act of Congress of 1805, amendatory of the charter of the city of Georgetown, -wherein it is declared and provided that said corporation should have power and authority to open, extend, and regulate streets within the limits of said town; and also “to make and keep in repair all necessary sewers and drains, and to pass regulations necessary for the preservation of the same.” There were also read in evidence certain ordinances, orders, and resolutions of the corporation, in respect to the sewer involved in this litigation, for the repair and preservation of the same.</p> <p>By § 95 of the Devised Statutes relating to the District of Columbia, it is provided that the charters of the cities of Washington and Georgetown, severally, shall he continued for certain designated purposes; and, by § 96 of those statutes, it is provided that “the District of Columbia is [and shall bej the successor of the corporations of Washington and Georgetown and all the property of said corporations and of the county of Washington [shall be and] is vested in the District of Columbia.”</p> <p>It appears that shortly after the passage of the act of Congress of April 1, 1882, authorizing the sale of lots and parts of lots of ground in Georgetown, there was sale made to the plaintiff's of lots 27, 28, and part of lot 29, of the “water lots” so called, the same being described in one parcel as follows, that is. to say:</p> <p>“Beginning at a point on the south side of Water street, at the northeast corner of said lot numbered 27, and running thence-westerly with the south line of Water street, 81 feet, 6 inches, to the northwest comer of said lot numbered 28; thence southerly with the west line of said last-mentioned lot, 56 .feet;, thence due west,' 22 feet and 6 inches; thence southerly by and with the west side of a tail race as now existing, 128 feet and 3. inches to the wharf line of the Potomac river, and continuing the same course onward to the middle of the channel of said river; thence by and with the middle of the channel, to a point which will be intersected by the east line of said lot numbered 27 protracted to said middle of the channel, and thence by and with said last-mentioned line reversed to the place of beginning, the same, as to the part between the said Water street and the-wharf line, being delineated upon a plat thereof, hereto annexed and made a part hereof, said property being formerly called and known as the ‘fish-wharf’ property, and extending from Water street to the channel of the Potomac river in said city of Georgetown in said District.” Together with all the improvements,, ways, waters, easements, privileges, appurtenances, etc., to the said lots belonging.</p> <p>At the time of the purchase of the property by the plaintiffs,, and for a long time before, they had been residents of the city of Georgetown, and must, therefore, be supposed to have known of tire existence and location of the main sewer of the town, and especially as a large part of the sewer in question was open. But before the sale of the property, according to the testimony of one of the plaintiffs, he made an examination of the premises, and he saw the tail race, and the water running therein to the Potomac river; and with the knowledge thus possessed the plaintiffs purchased the property. As matter of fact, for a long time before and after the sale to the plaintiffs, the principal sewer or drain of the city of Georgetown discharged its contents tlirongli that sewer or tail race into the Potomac river. This sewer, it appears, flowed underneath the Chesapeake & Ohio canal, located north of Water street, and passed under two mills, then under Water street, and thence into the tail race, emptying into the river. These two mills, situate north of Water street, were, at the time of the purchase of the property, and for more than twenty-two years prior thereto had been, supplied with water power from the Chesapeake & Ohio canal, by means of conduits or flumes, through which the water passed from the canal to the mill wheels. The sewer, which was open and passed under the mills as just stated, received the water from the first mill after it had left the flume and had served the purpose of the mill. The sewer, thus augmented by the water from the first mill, passed on down under the second mill, where it received the water of that mill in the same manner as it had received the water from the first mill; and thereafter the commingled waters of the two mills, together with the ordinary sewage of the town, flowed out through the sewer way or tail race into the river. Some years prior to 1898 another mill was erected south of Water street, known as Hill’s mill, and which also derived its supply of water from the canal, and that water was, by an agreement with the plaintiffs, conducted over the land of the plaintiffs and discharged into the sewer or tail race.</p> <p>It is shown by the evidence that, at the time of the purchase of the property by the plaintiffs, the sewage of a large part of Georgetown was conveyed to and was passed off into the river, by means of this sewer or tail race; but the drainage into this sewer was largely surface or open drainage, though some part of it was by covered underground drains. But as the city of Georgetowm increased in population, greater sewage capacity became necessary, and therefore two new sewers were laid, thus increasing from time to time the quantity of sewage flowing through the tail race; so that in the year 1898 and afterward the quantity of sewmge passing through the tail race was considerably more than it was at the time of the purchase of the property by the plaintiffs and prior thereto; and consequently, according to the evidence on behalf of the plaintiffs, during the three years immediately preceding the institution of this suit, which was on the 8th day of January, 1901, large quantities of offensive matter and substances such as are generally found in city sewers, were discharged into and through the tail race, and the quantities of such offensive matters and odors therefrom were particularly observable after heavy rains.</p> <p>It is also shown by the plaintiffs that, soon after they became owners of the land described in the deed, they erected a wharf along the river front of the property, though the precise location of this wharf is not shown by the evidence in the bill of exception. There is evidence, however, to show that in the early part of the year 1899, it was discovered that there was a large accumulation of the sewage matter discharged from the tail race, settled in front of the wharf, and thus lessening the depth of the water, so that vessels of more than 9 or 10 feet draft could not reach the wharf.</p> <p>It is also shown by the evidence that the course of the old original sewer north of Water street had been changed some time prior to January, 1899, so that, instead of running under the mills north of Water street as formerly, it was made to run around outside the mills, and parallel with its former course, down through Potomac street, and through an underground sewer way. This new course of the sewer, however, led into the tail race, and so far as the plaintiffs are concerned it does not affect them in any respect whatever.</p> <p>The evidence shows that the municipal authorities had also constructed upon the land immediately west of that of the plaintiffs (said land being owned by Mr. Cissel), an arched drain or sewer, connecting with the original sewer or tail race and leading to the Potomac river on the south and west of the said tail race or old sewer. These new constructions, and their relation to and connection with the old sewer, and to and with the tail race, are delineated on a diagram used at the argument, and the correctness of which has not been questioned.</p> <p>The plaintiffs also produced evidence to show that the water flowing from the tail race (being the water drawn from the Chesapeake & Ohio canal and discharged from the mills) before the diversion thereof by the sewer through Cissel’s land, and exclusive of the sewage flowing through it, was capable of furnishing water power as it passed through the tail race; that this water power would have enhanced the rental value of the property from $1,000 to $1,600 annually, but it was rendered entirely useless because of the sewage which would interfere with any wheel to be turned by the water; and that the rental value of the property was decreased because of the offensive odors arising from the sewage before its diversion as before described.</p> <p>But, as reflecting upon the question of the right of exclusive use and control by the municipal corporation, of the original sewer or tail race, from the south line of Water street to the Potomac river, it was shown in evidence that, shortly after the purchase of the property mentioned in the deed given in evidence by the plaintiffs, they, together with G. W. Cissel, the owner of tire western adjoining lot or half lot, 29, by letter dated 24th day of April, 1885, addressed to the Commissioners of the District of Columbia, said: “We, the undersigned, owners of lot 29 of the water lots situated on the south side of Water street, in Georgetown, or West Washington, D. O., propose improving said lots, which is impossible so long as the government sewer remains open on the property. We therefore request you to have the same covered to the point where it empties in the river, at as early date as possible, so that we can fill over and build on it. Yours, etc.” The response to this request was, that it could not be complied with at that time, because there was no appropriation available to enable the Commissioners to have the work done. But since that time there has been a covered sewer made, by which the contents of the old sewer or tail race have been given a different point of discharge.</p> <p>It is upon this state of facts that the plaintiffs have brought this suit, and claim to recover damages for an alleged nuisance supposed to have been committed by the District of Columbia, during the time the sewer flowed over their land, and by reason of which supposed nuisance they had been deprived of the use, as they allege, of the water flowing through the old sewer or tail race, to the injury and depreciation of their property; and also to recover damages for the diversion of the water flowing through the tail race or sewer, whereby they were deprived of the water from the time it was diverted as before stated.</p>

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

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

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

<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>These two causes were heard together. The question sought to be raised in them is the same; that is, whether the Willard Hotel Company, conducting the New Willard Hotel in this city, has the right to occupy the street in front of the hotel with its own vehicles in the business of the hotel and for the service of its guests, practically to the exclusion of other vehicles, although this question is not very distinctly raised by the pleadings in •either cause.</p> <p>Both causes come to us from the police court on writs of error. In the first of them information was filed in that court by the District of Columbia against the hotel company, as the proprietor of a certain one-horse vehicle, hired and used the same for the conveyance of passengers for hire, without having procured a license so to do and paying the license tax therefor, in alleged violation of the act of Congress of July 1, 1902 (32 Stat. at L. 590, chap. 1352). And in the second cause it was charged in the same court that the plaintiff in error, being the driver of a certain hotel vehicle, presumably tlie same vehicle that is mentioned in the information in the preceding case, unnecessarily obstructed the free passage of Fourteenth street northwest, apparently in the neighborhood of the New Willard Hotel and in front thereof, and hindered and delayed the passage of other vehicles, in violation of the police regulations of the District.</p> <p>Both causes appear to have been tried together in the police court; for the testimony is the same in both, and the bills of exceptions only differ in their reference to the two several enactments under which the prosecution was had. It is proper to quote in full from the record the testimony on behalf of the prosecution, which is exceedingly brief. It is as follows:</p> <p>Witness Lamb, who was an inspector employed by the District of Columbia, testified as follows: “On the 3d day of July, 1903, I approached the defendant William Clements, on the Fourteenth street side of the New Willard Hotel, standing near the entrance, and asked him the question, 'Who owns this vehicle ?’ He said the Willard Hotel Company under lease. I asked him if he was engaged in driving any persons, and he said, 'No.’ I asked him: 'Are you waiting for a job?’ He said: 'Yes, from hotel guests only.’ I asked him if he made a practice of standing there daily waiting for jobs, and he said, 'Yes, for hotel guests.’ I asked him if he knew that it was not a public hack stand, and he said that he did.”</p> <p>This testimony on behalf of the prosecution was supplemented by that offered on behalf of the hotel company, — the desire both of the District of Columbia and of the hotel company being, as already intimated, to test the question of the extent of the right of the hotel company to use the street in front of the hotel; and in this testimony these facts were developed:</p> <p>The hotel company is the proprietor of ten carriages and six cabs, which it leases annually from the keeper of a livery stable under an agreement to pay to him a certain percentage of the profits therefrom. The keeper of the livery stable is the owner of the horses and vehicles, which he houses in his own stables, and where he feeds the horses, hires and pays the drivers, and pays for the vehicles the license fee required by the District of Columbia, but has no further control over them than to send them to the hotel company at the order of the latter. The hotel company under its lease has the absolute control of the vehicles, which it keeps exclusively for the guests of the hotel. All charges for their use by the guests are entered upon the books of the hotel, and are collected by the hotel company, as are the charges for board and rooms, and are not collected either by the drivers or by the keeper of the livery stable. Not all the vehicles at any one time, but as many of them as are required for the business of the hotel, whether to respond to immediate demands of guests or to be in readiness for anticipated use, are kept on the street in front of the hotel.</p> <p>Upon the whole testimony, the police court, which sat without a jury, was requested on behalf of the defendants in both causes to discharge them on the ground that there had been no violation either of the act of Congress or of the police regulations of the District This the court declined to do; but on the contrary, adjudged both of the defendants to be guilty and imposed a fine in each case. Exceptions having been duly reserved, both causes have been brought here on writs of error.</p>

<p>Hearing on an appeal by tbe complainant from a decree of tbe Supreme Court of the District of Columbia in a suit in ¡equity to enforce a mechanics’ lien. ' '</p> <p>The Court in the opinion stated the case as follows:</p> <p>This cause was before us nearly five years ago, and is reported in 16 App. D. C. 293. The decision then was merely upon a question of procedure, and did not involve the merits of the case.</p> <p>The proceeding, which was instituted in the supreme court of the District, on January 18, 1895, by tbe Alfred Richards Brick Company, the appellant bere, as complainant, is a suit in equity to enforce a mechanics’ lien for bricks supplied by the complainant to tbe defendant, Charles V. Trott, for use in the construction of certain liouses on lots numbered from 135 to 142, both inclusive, in a subdivision of lots in square 555, in this city. It appears from the record that on April 2, 1893, the appellee, Trott, who seems then to have owned all these lots and who was apparently a builder and contractor and somewhat of a speculator, procured from the authorities of tbe District a permit to construct five two-story brick buildings on lots Nos. 135 to 139, both inclusive, fronting on a street designated as Kirby street; and that about three weeks afterward, on April 21, 1893, he procured another similar permit for the construction of three two-storv brick buildings on the lots Nos. 140 to 142, both inclusive, which fronted on a street designated as Morgan street, running at right angles to Kirby street. The five houses on Kirby street were the first begun and the first finished. They seem to have been completed on October 7 or October 8, 1893. The three houses on Morgan street were not finished until after January 27, 1894. The bricks, which constitute the subject-matter of lien, appear to have been supplied indiscriminately to both clusters of houses, without reference to any specific amount for use in either. The three houses on Morgan street, however, appear to have been as much as 50 per cent more valuable severally than the five houses on Kirby street, each of the latter being of the value of about $2,600, while each of the former is stated to have been of the value of about $4,000. The bricks, however, were all supplied during the period of about four months, from May 23, 1893, to September 27, 1893, and before the completion of the cluster of five houses on Kirby street. The two clusters were not continuous, although the rear of the lots on Morgan street adjoined lot 139 on Kirby street. In fact, they seem to have been separated by an alley.</p> <p>In the interval between the completion of the cluster of five buildings and the other cluster, Trott failed in business or became embarrassed, and another contractor assumed to finish the cluster of three houses on Morgan street.</p> <p>On September 7, 1893, when the cluster of five houses on Kirby street was approaching completion, Samuel E. Babbitt* one of the original defendants in this cause, but who has died since the institution of this suit and who has been succeeded in the cause by his legal representatives, and who was the master plasterer for all the plastering work in all the houses, received from Trott, for a consideration which is not questioned, a deed of conveyance of lot No. 135, with the building thereon, which was the farthest removed from the Morgan street houses and the farthest north of the cluster of five buildings on Kirby street.</p> <p>By two deeds, dated January 22, 1894, and January 31, 1894, respectively, Trott conveyed all the remaining seven lots with the buildings thereon, to one Charles H. Utermehle. All these conveyances, of course, were necessarily subject to any valid liens against the property by subcontractors and material-men.</p> <p>On January 23, 1894, the present appellant, the Alfred Richards Brick Company, filed its notice of mechanics’ lien against all eight of the lots, with the buildings thereon, for the value of the bricks supplied to all the buildings as one job for the sum of $1,717.97, under a contract with Trott. Under date of December 1, 1894, a credit of $1,503.22, which was seven eighths of the claim, was given upon it as having been paid by Utermehle in his purchase of the lots from No. 136 to No. 142, both inclusive, which left due upon the claim one eighth of it, or the sum of $214.75. The seven lots sold to Utermehle were thereupon released from the lien, and the present proceedings were instituted to enforce the balance ($214.75) against lot No. 135 in the hands of Samuel E. Rabbitt.</p> <p>In the course of the testimony in the case it was developed that on November 1, 1893, after the completion of the Kirby street houses, the brick company took from Trott his promissory note of that date, payable ninety days thereafter, for the sum of $2,715.84, which is conceded to include the sum of $1,717.97, claimed under the lien; and that this note was discounted in bank for the benefit of the brick company, but that Trott never paid it, and that it was subsequently taken up by the brick company. There was also testimony tending to show the amount of brick which went into the house on lot No. 135, from which a calculation has been made by the appellant to show that it was of the value of about $234, or something more than the amount actually claimed in these proceedings.</p> <p>The court below dismissed the bill of complaint, and from the decree of dismissal the complainant has appealed.</p>

Hearing on an appeal by the proponents from an order of the Supreme Court of the District of Columbia sitting as a probate court refusing to admit an unattested paper writing to probate.

<p>Hearing on a motion to dismiss an appeal.</p>

Hearing on an appeal by tbe defendant from an order of ibe Supreme Court of tbe District of Columbia overruling exceptions to and confirming a report of tbe Auditor and directing the defendant to pay to tbe complainant tbe amount found by tbe Auditor’s report to be due from him to her for arrears of alimony and for tbe support and maintenance of their child.

Hearing on appeals (specially allowed) from orders of the Supreme Court of the District of Columbia sitting as a criminal court overruling demurrers to two indictments for the crime of conspiracy under U. S. Rev. Stat. § 5440 (U. S. Comp. Stat. 1901, p. 3676).

<p>Municipal Regulations; Gasoline, Storage of; Delegation of Legislative Powers.</p> <p>1. The commissioners of the District of Columbia had the power under the authority of the act of Congress of January 26, 1887, to make and enforce a regulation requiring a license for the storage of gasoline in the city of Washington.</p> <p>2. That portion of § 3 of the regulations promulgated by the commissioners of the District of Columbia under the authority of the act of Congress of January 26, 1887, requiring every person storing gasoline in the city of Washington to take out a license, which requires every such application to be referred to the inspector of buildings and the chief engineer of the fire department for examination of the building described in the application, who shall transmit the application with their recommendation to the assessor of the District, who shall, if such officials so recommend, issue a license unless otherwise-ordered by the commissioners, is not void as an unauthorized delegation o-f the power conferred upon the commissioners; it not being a delegation of their authority to commit to the expert agents named a duty to ascertain and report information important to the exercise of their power to issue the license, the propriety of which issue must depend upon the character and surrounding of the building occupied.. The word “recommendation” in the regulation is used in the sense of report. (Distinguishing United States ex rel. Kerr v. Ross, 5 App.. D. C. 241.)</p>

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

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

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

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

Hearing on an appeal (specially allowed) by the defendants, from an order of the Supreme Court of the District of Columbia overruling their pleas to a petition for divorce and giving” them leave to answer.

<p>Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia dismissing a bill in equity to set aside alleged fraudulent- conveyances of land.</p> <p>The Court in the opinion stated the case as follows:</p> <p>The appellant, Edward White, began this suit in the supreme court of the District of Columbia, on August 10, 1901, to obtain a decree annulling two conveyances of land alleged to have been made by Augusta Patten Glover to her codefendants with intent to hinder, delay, and defraud the creditors of the grantor.</p> <p>By one of these deeds made February J, 1901, said Augusta Patten Glover conveyed to her sisters, Josephine A., Mary E., Edith A., and Helen Patten, her interest in all of the lands, wherever situated, of which their mother, Mrs. Anastasia Patten, had died seised and possessed. The grantor and grantees being the only heirs at law, the said interest so conveyed is one fifth. These lands are described in the bill by square and lot as situated in the city of Washington. By the second deed, made July 15, 1901, one lot, held by grantor under an independent title was conveyed to the defendant Shands.</p> <p>A decree dismissing the bill was passed March 30, 1901, and the appeal therefrom includes all of the defendants; but in so far as appellee Shands is concerned no reversal has been urged. Consideration, therefore, is confined to the deed made to the Misses Patten. The following facts, offered to establish complainant’s right as a creditor, appear in a transcript of the proceedings of the circuit court of the city of St. Louis, in the State of Missouri. On May 9, 1898, Edward White began suit in said court against Augusta Patten Glover to recover upon two promissory notes for the sum of $5,400 each, executed by her in New York, on February 12, 1895, to the order of John M. Glover; said notes were payable in one year, with interest from date at the rate of 6 per cent per annum, recite that they are a charge upon the separate estate of the maker, and were indorsed by said John M. Glover and delivered to said White for value. Process issued May 9, 1898, and the sheriff’s return thereon shows its execution in St. Louis, on May 14, 1898, “by leaving a copy of the writ and petition as furnished by the clerk, for Augusta Patten Glover, defendant herein, at his usual place of abode with a person of his family over the age of 15 years.”</p> <p>On May 20, 1898, an appearance was entered to the June term for the defendant by John M. Glover as her attorney. During the term an answer was filed in her name by the same attorney, which was amended March 13, 1899. May 23, 1899, a trial was had, resulting in a judgment for the plaintiff for the sum of $13,573.80 besides costs of suit. On June 12, this judgment was vacated and a new trial ordered because the trial court committed error in admitting testimony showing the law of New York relating to the contracts of married women without the same having been pleaded.</p> <p>On March 20, 1901, plaintiff filed an amended petition, ad-ting out the New York statute relied upon, of which personal service could not be had, because neither the defendant nor John M. Glover could be found in St. Louis. Pursuant to the rules of the court made under statutory authority, service was then made by posting a copy of petition and writ in the clerk’s office for a sufficient period. No subsequent appearance was made by any one for the defendant, and judgment was entered against her on May 22, 1901, for $14,870.60, besides costs of suit, with award of execution. No execution appears to have been issued.</p> <p>The attorney who brought the suit and directed the service of process by leaving a copy for the defendant at the West End Hotel, in St. Louis, testified to having seen the defendant about that time in St. Lonis with her husband, J ohn M. Glover. Other testimony was offered to show that the Glovers had made their home in the hotel named for some years before.</p> <p>Mrs. Augusta Patten Glover, who was called as a witness by the complainant, testified on cross-examination, that, she left St. Louis about the last day of April, or first of May, 1898, and had never returned; that John M. Glover was her husband, but not her attorney, and was not authorized to appear for or to represent her in any suit upon the notes held by White; that she had never heard of the institution of said suit or of any proceeding therein, and was unaware of the existence of any judgment until she was .told of the institution of an action upon the same in the District of Columbia. She further said that she had not seen- John M. Glover but once since her departure from St. Louis, and that was in December, 1898.</p> <p>It appears that on August 3, 1901, an action was begun against Augusta Patten Glover in the supreme court of the District of Columbia, upon the judgment aforesaid, on which original, alias, and pluries summons were issued and returned unserved because the defendant could not be found. Some days after this action was begun, and before the return of the original summons, the present bill was filed. It was also shown that Augusta Patten Glover has not resided in the District of Columbia since her marriage to John M. Glover in 1887, and that she now lives in the State of Rhode Island.</p> <p>The bill alleges that she has no property subject to execution in the District of Columbia, and that she is wholly insolvent. Her answer admits that she has no property in the District, but denies that she is insolvent. There is no proof that she has no property in Rhode Island where she now resides.</p>

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

Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia ratifying and confirming a report of the auditor in a suit in equity for an accounting. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the defendants from a summary judgment of the Supreme Court of the District of Columbia rendered under the 73d rule of that court, for want of a sufficient affidavit of defense in an action upon a written contract The Court in the opinion stated the case as follows: This is an appeal from a summary judgment rendered upon motion under rule 73 of the supreme court of the District of Columbia.

<p>Justice of the Peace, Undertakings on Appeal Prom; Amendments.</p> <p>1. An undertaking on an appeal from a justice of the peace to “satisfy and pay all intervening damages and costs arising on said appeal” is not a compliance with D. C. Code, §§ 30 and 31, providing tliat no appeal shall be allowed from a justice of the peace unless the appellant shall, within six days after the judgment, give an undertaking to “satisfy and pay any final judgment” that may be recovered in the upper court; and where such an undertaking is given the appeal is properly dismissed by the lower court.</p> <p>2. While, if an appeal bond or undertaking has been presented to the trial court in due time for approval and such approval is for any good reason postponed beyond the time limited for the giving of the bond or undertaking, the party should not thereby be deprived of his right of appeal, yet in the case of an appeal from a judgment of a justice of the peace, where the record although showing that, within the time limited for the filing of the undertaking, a notice was given, or is claimed to have been given, by the appellant, that he had filed “a motion and bond for appeal,” the docket entries of the justice contain no proof of the fact, but do show that thereafter and after the expiration of the time within which the undertaking might have been filed, an undertaking was filed and approved, — the appeal is properly dismissed by the lower court.</p> <p>3. Omission to file an undertaking on an appeal from a justice of the peace within six days from the entry of judgment as required by D. C. Code, §§ 30 and 31, is jurisdictional in its character, and may not be supplied by tlio appellate court, the statute not being directory, but mandatory. (Following United States ex rel. Mulvihill v. Clabaugh, 21 App. D. C. 440.)</p> <p>4. The allowance or refusal of an amendment by the trial court is within the discretion of that court, and is not subject to review on appeal; D. C. Code, § 399, providing that the courts “shall have power” to allow amendments upon such terms as seem best to them, not being mandatory, but simply reposing a reasonable discretion in them.</p>

<p>Declarations as Evidence; Gifts Causa Mortis; Ees Gestas; Witnesses, Competency of.</p> <p>1. Declarations made by a testator near enough to the time of the execution of his will to be regarded as part of the res gestee of its execution are admissible in evidence to show the state of his mind and his, intention in the disposal of his property.</p> <p>2. A gift causa mortis, one given in contemplation of impending death, is in the nature of a testamentary disposition, and is governed by the same rules of law that obtain in reference to wills; so that declarations of the donor about the time of making it or at the time it, is alleged to have been made are admissible if they constitute part of the res gestee and tend to show his intention or mental condition.</p> <p>3. Where in a suit in replevin by the representative of a decedent’s estate, involving the right to the possession of certain promissory notes alleged by the plaintiff to have passed under the will of his dededent, but claimed by the defendants, husband and wife, to have been givens to the wife by the testatrix the day before her death, the declaration of the testatrix made a few days before her death, to the effect that she had made her will and was perfectly satisfied with it, has been admitted in evidence, the will itself, as part of the declaration so made, is admissible in evidence to show her intent in regard to the disposition of her property and impliedly to disprove the theory of a gift causa mortis from the decedent to the female defendant.</p> <p>4. In such a case, the testimony of the female defendant as to conversations between the deceased and her husband, her codefendant, is inadmissible under D. C. Code, § 1064, providing that when one of the parties to a transaction has died the other party shall not be allowed to testify in regard to the transaction except under certain eonditions-</p>

Hearing on an appeal by tbe complainant from a decree of tbe Supreme Court of the District of Columbia dismissing a bill in equity to establish title by adverse possession to certain land. Tbe Court in the opinion stated tbe case as follows: This is an appeal from a decree of tbe supreme court of the District dismissing a bill in equity filed under the statute to establish title by adverse possession. The property in controversy is part of lot 9, in square 345, in this city.

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

<p>Hearing on a motion to dismiss an appeal.</p>

<p>Hearing on a motion by the appellee to dismiss or affirm a decree of the Supreme Court of the District of Columbia embodying a suggestion of diminution of the record, and a motion to strike out part of tbe same.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal by the petitioner from an order of the Supreme Court of the District of Columbia overruling a dermirrer to a return to a writ of habeas corpus, dismissing the petition for the writ, and remanding the petitioner to custody.

Hearing on an ex parte application by the appellant to be admitted to bail during the pendency of his appeal to this court from orders of the Supreme Court of the District of Columbia in a habeas corpus proceeding adjudging him in contempt of court and refusing to discharge him from custody.

<p>Hearing on two appeals, — one from an order of the Supreme-Court of the District of Columbia adjudging the appellant guilty of contempt of court, and the other from an order of that court overruling his demurrer to the return to a writ of habeascorpus and remanding him to prison.</p> <p>The Court in the opinion stated the case as follows:</p> <p>There are two appeals, relating to the same subject-matter, brought into this court by the appellant, from decisions of the supreme court of the District of Columbia, which were argued together as one case, and which will be considered and disposed of in one opinion.</p> <p>The first of these appeals was talcen from an order adjudging the appellant guilty of a contempt of court, and the other from an order of the court overruling a demurrer to the return of a writ of habeas corpus, and remanding the appellant to prison.</p> <p>The appellant was adjudged guilty of contempt upon proof that he had attempted to influence a jury impaneled in a murder; case, by addressing them, as they passed along the street in charge of an officer of the court, by declaring in their hearing, “Not guilty, gentlemen, not guilty,”- — the jury, at that time, having under consideration the question of the guilt or innocence of the party accused.</p> <p>Upon hearing and conviction of the appellant upon the charge of contempt, he was sentenced by the court to ten days’ imprisonment in the jail, and to pay a fine of $25 and $5 costs, and, in default, of payment of fine and costs, to stand further committed to said jail until those sums be paid. Upon warrant of commitment issued the appellant was accordingly taken to :and imprisoned in jail; and thereafter he paid the fine and costs, and then petitioned the supreme court of the District of Columbia for the writ of habeas corpus, upon the allegation that he was unlawfully imprisoned, and praying that he be discharged. The writ was issued, and return thereto made to the same justice by whom conviction and commitment wore made. Tn the return the cause of the detention of the appellant was stated, together with a copy of the warrant of commitment made part of the return.</p> <p>The appellant entered a demurrer to the return, upon the ground that there was no power or jurisdiction in the court to convict and sentence the appellant as for a contempt of court; or if there was jurisdiction to convict and sentence the appellant, there was an excess of jurisdiction exercised in the sentence imposed.</p> <p>There are two questions presented on these appeals necessary to be decided by this court: (1) Whether the supreme court of this district is a court of the United States within the meaning and contemplation of § 725 of the Revised Statutes of the United States, U. S. Comp. Stat. 1901, p. 588, and whether said section properly applies to said court as to all other courts of the United States; and if so, (2), whether there was an excess of authority exercised by the court below in imposing the sentence on the appellant, in view of said § 725, U. S. Comp. Stat. 1901, p. 583, such as rendered the sentence void in whole or in part.</p>

<p>Hearing oh an appeal by the complainants from a decree of the Supreme Court of the District of Columbia dismissing without prejudice a bill in equity in a suit for the specific performance of a sale of lands in New Mexico.</p> <p>The facts are sufficiently stated in the opinion.</p>

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

Hearing on an appeal by tbe defendant from a summary judgment of the Supreme Court of the District of Columbia under the 13 d rule of that court, for want of a sufficient affidavit of defense, in an action on a promissory note. The facts are sufficiently stated in the opinion.

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

<p>Hearing on appeal by the defendant from a judgment of the Supreme Court of the District of Columbia upon a verdict directed by the court in an action on the bond of an administrator.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This action was begun by the United States for the use of Kate L. Paynter against the American Bonding & Trust Company, the surety on an administrator’s bond.</p> <p>The declaration alleged that the use plaintiff is the indorsee of a note for $3,000, made by Franklin H. Mackey and Hierome O. Claughton,' jointly, to the order of Richard K. Paynter, on May 5, 1897, and payable two years thereafter.</p> <p>That said Claughton died intestate on August 20, 1897, and by order of the supreme court of the District of Columbia, holding sessions for orphans’ court business, Rodolphe Claughton was appointed administrator of his estate, on September 10, 1897, upon the approval of his bond in the sum of $14,000 executed by defendant, the American Bonding & Trust Company, as surety.</p> <p>That assets amounting to $9,918 came into the hands of said administrator, who filed no account of his administration until required to do so by order of court September 15, 1899, made on petition of said Kate L. Paynter.</p> <p>That said account, filed October 1, 1899, was referred to the auditor, who reported that sufficient funds had come into the administrator’s hands to pay a certain proportion of said note, namely, $2,901.60. That said report was duly confirmed, but that the administrator, who is insolvent, wasted the said assets.</p> <p>That the said supreme court, in a suit in equity begun by said Paynter against said Mackey and the said administrator and others, passed a decree, on November 11, 1900, reforming the said note and declaring it a joint and several note of the said makers, and decreeing recovery thereon of the said administrator. That execution was issued on said decree against said administrator and said Mackey, and returned unsatisfied.</p> <p>The defendant entered pleas to the effect that the estate had been properly administered; that it was solvent; that intestate never made the note; that the same was a joint note, and that the estate of liierome O. Claugliton was discharged of liability by his death; and that defendant was not a party to the suit in equity wherein the said note was reformed, and is not bound by the decree therein, etc.</p> <p>On the trial the plaintiff offered evidence tending to prove the facts alleged in the declaration. The auditor’s report was exhibited, showing the sum of $2,901.60 in the hands of the administrator, which plaintiff was entitled to have applied on her said note. The proceedings in the equity suit show a bill filed February 25, 1899, by Kate L. Paynter against Mackey, Kodolpbe Claughton in his own right and as administrator, and against certain other persons interested in certain real estate upon which a lien was claimed for the amount of said note. The note is described in the bill as tlie joint note of the makers, and there is no allegation of mistake in the same, and no special prayer for its correction. It is alleged that the note had been proved as a claim against the estate, but the administrator had failed and refused to pay it, and also that the personal estate was insufficient to discharge it. The prayers, aside from those relating to the real estate involved, are for a personal decree against Mackey for the debt, and that the real and personal estate of the intestate be subjected to its satisfaction. There was the usual prayer for general relief. The answers of the administrator and defendant Mackey substantially admit the allegations of this bill, denying only certain allegations of fraud therein. An interlocutory decree was entered May 29, 1900, ordering the sale of certain land described in the bill, unless defendants should in thirty days make payment of the amount of the note sued on. And it was provided that, in case of failure of the proceeds of sale to discharge the same, the complainant-might apply for such other order or decree as may he proper, etc.</p> <p>A supplemental bill was filed November 5, 1900, in which it was alleged that a prior lien upon the property would more than consume the value of the. said land, and that the trustees appointed to sell had failed to receive a bid for the same, and a further prayer was that an additional decree be passed holding Mackey and the estate of H. O. Claughton liable for the debt, etc.</p> <p>The final decree of November 14, 1900, reformed the note, making it read as the joint and several note of the makers, and awarded recovery thereon against both Mackey and the administrator for the same, besides costs of suit, for which execution was ordered against each. Execution was issued against them jointly on November 27, 1900, for $2,272.33, which was the amount remaining due after allowing a credit for a payment. By order of complainant’s solicitor this was returned, November 28, 1900, nulla bona.</p> <p>It was then further shown by the auditor’s final report, that had been adopted by the probate court, that the amount of $1,166.80 remained due plaintiff by the administrator, who had in the meantime removed to the State of New York.</p> <p>No evidence having been offered by the defendant, the jury were directed to return a verdict for the plaintiff for said .amount.</p> <p>Defendant excepted to this direction and has appealed from ‘the judgment rendered on the verdict so returned.</p>

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, after his demurrer to two of three pleas of the defendant to the declaration had been overruled, the plaintiff electing to stand by his demurrer.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of tbe District of Columbia, on a verdict directed by the court in an action to recover damages for personal injuries. The Court in tbe opinion stated tbe case as follows: Tbe appellant, Sarah Chunn, began tbis action August 3, 1901, to recover damages for personal injuries.

<p>Hearing oh an appeal by the defendants from a judgment of tbe Supreme Court of tbe District of Columbia, for want of a sufficient affidavit of defense, in an action on a contract.</p> <p>The Court in the opinion stated tbe case as follows:</p> <p>Tbe appellees, Augustus S. Worthington, R. Ross Perry, Sr., and Francis P. B. Sands, sued as plaintiffs in tbe supreme court of tbe District to recover a balance claimed to- be due to them from Franz J. and Mary W. Heiberger, tbe appellants, tbe defendants in tbe suit, for professional services rendered by tbe plaintiffs to tbe defendants in tbe matter of tbe contest of tbe will of John W. Nairn, tbe father of tbe appellant Mary W. Heiberger, with whom her husband, tbe other appellant, was joined in tbe suit. There was an express contract in writing between tbe parties providing for a sliding scale of compensation to tbe plaintiffs under various enumerated contingencies. Tbe clause which bears upon the present controversy is in these words:</p> <p>“It is further agreed that in tbe event of final success in tbe lower court a fee contingent upon such success is to be paid to said parties of tbe second part (tbe appellees) to be divided equally between them, of a sum equal to from 10 to 15 per cent of the market value of tbe interest of said Mary W. Heiberger in tbe estate of said John W. Nairn, deceased, upon tbe setting aside of said will.”</p> <p>The appellants were successful in the lower court, although as the result of a compromise, and the will was set aside; and in the compromise agreement the estate of John W. Nairn, for the purpose of its division between the parties in interest, was estimated as being of the value of $600,000, and 13% per cent of it, amounting on the same basis of valuation to $80,000, was assigned to belong to the appellant, Mary W. Heiberger, the largest portion of this, however, being to be held in trust for her until the happening of a certain contingency. The date of this compromise agreement does not appear in the record before us, but apparently within a few months afterwards, in June, of 1903, the appellants paid to the appellees, on account of the professional services rendered, the sum of $12,000. This was 15 per cent of $80,000, and the appellants claim that it was all to which the appellees were entitled, under their contract. The appellees, however, claimed, and yet claim, that the market value of the interest of Mary W. Heiberger in the estate of her father, as determined under the compromise, was not less than $90,000; that this was agreed upon in April, of 1903, between the appellants and the appellees as the market value of the interest, and that it was then also- agreed upon between the parties that the sum of $13,500, being 15 per cent of said sum of $90,000, was the proper amount to be paid by the appellants to the appellees under the contract between them. Demand for the balance, the sum of $1,500, being made upon the appellants, they refused to pay, and thereupon the appellees instituted the present suit to recover that balance.</p> <p>The appellees, with their declaration, filed an affidavit intended to be the basis of a summary judgment under the 73d rule of the supreme court of the District; and the appellants, in support of a plea of the general issue and a plea of set-off, filed a counter-affidavit, in which they averred that 10 per cent of $80,000, the minimum rate mentioned in the contract, and which would have amounted to $8,000, would have been a just and reasonable compensation for the services performed ; and they pleaded as a set-off the difference which they had paid between $8,000 and $12,750, in which latter amount they included a retaining fee of $750, which in the written contract is independent of the percentage stipulated to be paid in the event of success, as heretofore stated.</p> <p>Judgment was rendered for the plaintiffs under the 73d rule for $1,500, the amount claimed; and from this judgment the defendants have appealed.</p>

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia, upon a verdict for tbe plaintiff directed by tbe court, in an action on a promissory note. Tbe Court in tbe opinion stated tbe case as follows: Tbis is a suit at common law by David Stewart, tbe bolder of a promissory note, against Galen E. Green, tbe indorser thereof.

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 personal injuries. The facts are sufficiently stated in the opinion.

Hearing on an appeal from a judgment of the Supreme Court of the District of Columbia in an action to recover rent, tried on an agreed statement of facts. The facts are sufficiently stated in the opinion.

<p>Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on a verdict, in an action of ejectment.</p> <p>The Court in the opinion stated the ease as follows:</p> <p>The Washington, Potomac, & Chesapeake Railroad Company brought this action of ejectment against the Chesapeake Beach Railway Company to recover possession of a strip of land in the District of Columbia.</p> <p>Plaintiff’s evidence tended to show title as follows:</p> <p>(1) An act of the legislative assembly of Maryland, approved March 20,1868, incorporating the Southern Maryland Railroad Company, and an act of Congress, approved June 27, 1882, authorizing the corporation to extend a railroad into and within the District of Columbia.</p> <p>(2) Deeds made by a number of persons between June 20 .and December 12, 1884, conveying rights of way through the several parcels of land making up the entire strip as described in the declaration, to the Southern Maryland Railroad Company, its successors and assigns. Each deed recites a valuable consideration and appears to have been duly executed, acknowledged, and recorded.</p> <p>(3) A decree of the supreme court of the District of Columbia, passed September 1, 1885, in a suit by the Central Trust Company of New York against the Southern Maryland Railroad Company. This decree recites that on January 1, 1881, the said railroad company executed a conveyance to the said trust company in trust to secure certain bonds of its railway (as described) in Maryland and the District of Columbia, its extensions and appurtenances, with the equipments thereof, etc., “and also all rights of way and land occupied in connection with or for the construction,” etc., all “property, real and personal, nnd improvements of any kind and description, then or thereafter to be made, acquired,” etc., -which was also recorded in the District of Columbia. Said decree foreclosed the lien of said trust deed, and appointed Anthony M. Zane to make sale of the aforesaid property, franchises, etc.</p> <p>(4) Conveyance by Anthony M. Zane, in accordance with the requirements of the aforesaid decree and further decree ordering the conveyance to be made to Franklin E. Gregory of the rights of.way aforesaid and other property.</p> <p>(5) Certificate of incorporation, under the laws of Maryland, of the Washington & Potomac Railroad Company, under date of April 1, 1886, reciting the purchase by Gregory of the property of the Southern Maryland Railroad Company in Maryland and the District of Columbia under foreclosure, and the purpose of the new corporation to take over the property so foreclosed.</p> <p>(6) Deed by Franklin E. Gregory, April 1, 1886, to said Washington & Potomac Railroad Company.</p> <p>(7) A trust deed made by the Washington & Potomac Railroad Company to the Union Trust Company of Philadelphia, on April 1, 1886, wherein it “doth by these presents grant, bargain, sell, alien, assign, transfer, release, convey, and confirm,” to the said trustee, its successors and assigns, all of the property before described as belonging originally to the Southern Maryland Railroad Company, with power of sale under certain contingencies, to secure the payment of an issue of bonds. This was also recorded in the District of Columbia.</p> <p>(8) A certificate of incorporation under the laws of Maryland on July 24, 1901, of the Washington, Potomac, & Chesapeake Railway Company, organized for the purpose of taking over and operating the railway aforesaid.</p> <p>(9) A conveyance made July 25, 1901, by the Union Trust Company of Philadelphia, and other persons who had been concerned in the purchases aforesaid and in the last-mentioned incorporation, to the Washington, Potomac, & Chesapeake Railroad Company aforesaid. The following extracts from this conveyance are made necessary by the contentions of the appellant: “Whereas, by a decree of the circuit court of the United States for the district of Maryland, bearing date the 22d day of May, 1900, and passed in a case therein pending, wherein the said the Union Trust Company of Philadelphia, trustee, was complainant, and the Washington & Potomac Railroad Company was defendant, the above-named the Union Trust Company of Philadelphia, trustee, was appointed trustee with authority and power to sell the property in said proceedings mentioned, the same being the Washington & Potomac Railroad and its equipments and appurtenances, together with the franchises of the said Washington & Potomac Railroad Company, as by reference to the proceedings in said cause will more fully appear; and whereas, after having given bond, as required in said decree, and having complied with all the other requisites of said decree, and having given due notice of the time, place, and terms of sale by advertisements duly published, as in said decree provided, the said the Union Trust Company of Philadelphia, trustee, did on the 18th day of July, in the year 1900, at the town of Upper Marlboro, in Prince George’s county, Maryland, sell the property decreed to be sold by the decree in said cause, and hereinafter more fully described; * * , * and whereas, the said sale so made was duly reported to said circuit court of the United States for the district of Maryland, and was finally ratified and confirmed by the decretal order of said court bearing date the 8th of June, 1901.”</p> <p>Then reciting the final purchase by the plaintiff, the said trust company and others before referred to, it proceeds, “in consideration of the premises and of the sum of $10, the receipt whereof is hereby acknowledged, * * * do severally grant to the said Washington, Potomac, & Chesapeake Railroad Company, party hereto of the fourth part, all the railroad of the said Washington & Potomac Railroad Company, beginning at Point Lookout at the confluence of the Potomac river and the- Chesapeake bay, in St. Mary’s county, in the State of Maryland, and running thence through a part of St. Mary’s county, Charles county, and Prince George’s county, Maryland, to the city of Washington, in the District of Columbia, and its extensions and appurtenances, with the equipments thereof, consisting of all its personal property and effects of every kind, and also all the rights, liberties, privileges, immunities and franchises of the said Washington & Potomac Railroad Company, and also all the rights of way and land used in connection with or for the construction, use, and maintenance of said railroad, its extensions and branches, together with all the bridges, culverts, side tracks, depots, grounds, machine shops, buildings, and other structures, property, real and personal, and improvements of every kind and description acquired or erected on or connected with the said line of railroad, and all tolls, rents, and income belonging or due to said railroad company; to have and to hold the above-described property, rights, privileges, franchises, and appurtenances of every description to the said the Washington, Potomac, & Chesapeake Railroad Company, its successors and assigns ; and the said parties hereto of the second and third parts do hereby covenant that they will warrant specially the property hereby conveyed against encumbrances made by them, and none other; and the said parties of the first, second, and third parts hereby covenant that they will execute such further assurances as may be requisite.”</p> <p>The following is a substantial statement of the evidence of possession by the Southern Maryland Railroad Company and of the present possession of the defendant:</p> <p>Melville C. Hazen, for thirteen years employed in the engineering department of the District, testified that he knew the old Southern Maryland tracks near Burrville and Deanwood; had passed over them many times, and surveyed along the line. He made a plat for plaintiff on February 22, 1903, which was exhibited in evidence, and designates the strip in controversy. He said the plats accompanying the right of way deeds and the present plat are similar. The tracks used by defendant occupy the same ground that was occupied by the track of the Southern Maryland; they enter the property at the same point and leave it likewise. When the plat was made the roadbed, on the actual line of the roadbed of the Southern Maryland, was being used by the trains of defendant and had been for about three or four years. (The action was begun January 13, 1902.)</p> <p>Return Jonathan Meigs, 3d, testified that he had been a surveyor for twenty-five years. In 1879 or 1880 he was employed in laying out the right of way of the Southern Maryland Railroad Company, and was again employed therein in 1886. In 1898 he was employed by the defendant in engineering work upon the same right of way. The right of way of the Southern Maryland was 66 feet wide, and the defendant, uses this right of way to the District line. Upon the conclusion of this evidence the defendant moved the court to instruct the jury to return a verdict in its favor. This was denied and exception taken. Defendant introduced no evidence.</p> <p>Plaintiff then requested a charge, which was given, to the effect that if the Southern Maryland Railroad Company entered into said land at or about the time of the execution and delivery of the several deeds to it made, and exercised acts of dominion over the same, and that defendant entered upon said property and took possession thereof prior to the bringing of the action, the verdict should be for the plaintiff. The court further charged the jury that the only question was whether the Southern Maryland Company had possession under the said deeds, and that was a question to be determined upon their opinion of the testimony relating thereto</p> <p>Before the jury retired the defendant excepted to the charge: 1st. Because the plaintiff had not shown title in the grantors in the right of way deeds. 2d. Because it had failed to show continued possession of the lands from about the date of those deeds to the time of the alleged ouster by defendant. 3d. Because it had failed to show that either it or its immediate grantors had ever been in possession, or that any ouster of them had ever in fact occurred, éth. ’ Because the various counts of the declaration disclosed an outstanding record title to various parcels of the land in other than those under whom plaintiff claims. 5th. Blaintiff had failed to show that the legal title had in fact been vested in it by the deeds introduced.</p> <p>Verdict was returned for the plaintiff, and from the judgment thereon the defendant has appealed.</p>