Volume 24 — Appeals, District of Columbia

<p>HeabiNg oh an appeal by tbe complainant from a decree of the Supreme Court of tbe District of Columbia dismissing a bill in equity to charge certain real estate with an equitable lien or resulting trust in favor of tbe complainant.</p> <p>The Couet in tbe opinion stated tbe ease as follows:</p> <p>Maria Long, tbe appellant in this cause, filed ber bill of complaint in tbe supreme court of tbe District on September 24, 1902, to charge certain real estate in tbe city of Washington with a trust or lien in ber favor, and to enforce such trust or lien. She alleged in ber bill that, on or about June 27, a. d. 1877, she bad been induced by ber son, Samuel Wills, now deceased, to pay $400 on account of the purchase of a bouse and lot in this city, being tbe real estate referred to, upon tbe promise and agreement of said Wills with tbe complainant that she was to own and possess a proportionate part of said real estate for ber own exclusive use and benefit, together with tbe freedom of tbe premises for and during ber natural life; that this sum of $400 contributed by her was tbe first money paid on account of tbe purchase; and that thereupon ber son, Samuel Wills, delivered to ber the possession of a room in said premises, which she continued to use and occupy, with tbe freedom of tbe premises, until May, 1895, when she was induced to leave tbe place by alleged false representations on tbe part of tbe appellee, Shedrich D. Brow. She alleged also that during ber occupation she bad paid taxes, both general and special, for tbe property, tbe amount of which, however, is not stated and does not appear.</p> <p>It is alleged, further, that tbe title to tbe property was taken by Samuel Wills, not in bis_ ow name, but in tbe name of hi» wife, Mary M. Wills, who never at any time contributed any money on account of tbe purchase; and that Samuel Wills, from bis earnings as an employee of tbe War Department, contributed tbe remainder of tbe purchase money, tbe amount of which is not stated, and seems probably to have been $2,300.</p> <p>Mary M. Wills died intestate before ber husband, leaving surviving ber two children, one of whom died at tbe age of twelve years without issue, and tbe other, Beatrice Wills, survived and married tbe appellee, Shedrich D. Brow. Samuel Wills, son of tbe complainant and purchaser of tbe property, survived and lived on tbe premises with bis wife and children and bis mother until April 12, 1892, when be died intestate. Beatrice AVillsy who married Shedrich D. Brown, and in whom was the legal title to the premises, died in 1895, leaving her husband surviving her and one infant child, who died in the following year, 1896. The title, that was in this child, thereupon devolved upon the appellee, Elsie A. Scott, the sister of the purchaser, Samuel Wills, subject to a tenancy by the curtesy in Shedrich D. Brown; and this last is now in the possession of the property, and has evicted the complainant therefrom.</p> <p>The bill of complaint proceeds to allege that Brown is an intelligent young man; that the complainant is an ignorant and illiterate woman, now about one hundred years of age; that Brown, having first ingratiated himself into the favor of the complainant, subsequently induced her to remove from the premises on the promise to pay her $5 a month during her life; that he paid her this sum for one month, and never paid her any more during the eighty-six months following before the filing of the bill of complaint, for which he was indebted to her in the sum of $430. And, as already intimated, the bill prayed for the establishment of a trust or lien in her favor as against Elsie A. Scott, her daughter, in whom is the legal title to the property, subject to the life tenancy of Shedrich D. Brown, and against this latter as the person in possession and entitled by his curtesy to such possession. These two, Elsie A. Scott and Shedrich D. Brown, were the defendants to the bill.</p> <p>Elsie A. Scott neither appeared nor answered. Appearance was entered for Brown, but he never answered. Decrees pro confesso were taken in due time against both. Subsequently an order was entered making these decrees absolute. This was on December 2, 1902. The record before us shows that there was then testimony taken in January of 1893; but there is nothing to show by what order, or upon what authority, it was taken. We are informed orally, however, that the court below required some testimony to be taken in support of the bill of complaint before it would malm any final decree. In this testimony the allegations of the bill are substantially proved. In fact, the principal witness on behalf of the complainant is the defendant and appellee, Elsie A. Scott, her daughter, who proved the payment of tbe $400 and other payments also by her mother, and who seems to be willing that her mother should have the relief prayed for by her. It is shown, also, that, at the time of the taking of the testimony, the property was worth about $3,000; but there is no satisfactory testimony as to the amount paid by Samuel Wills at the time of his purchase in 1877, unless we accept as such a statement by one of the witnesses; apparently an entirely disinterested person, to the effect that about the time of the purchase Samuel Wills came to him to borrow some money from him, and stated to him that he had bought a house on Madison street, on which the property in controversy is located, for twenty-three hundred dollars ($2,300).</p> <p>At the final hearing the court below dismissed the bill of complaint on May 4, 1903; and the complainant has brought the cause to this court by appeal.</p>

<p>HEARING on a motion by the appellants to dismiss a special appeal.</p> <p>Tbe facts are sufficiently stated in the opinion.</p>

HeaeiNG on a petition to this Court for the writ of mandamus to a justice of the Supreme Court of the District of Columbia, to compel him to hear and determine a cause appealed to that Court from a justice of the peace.

<p>HbakiNG on an appeal by the respondents from an order of the Supreme Court of the District of Columbia in a habeas corpus proceeding, discharging a minor from enlistment in the marine corps upon the application of his father.</p> <p>(On February 25, 1904, tbe appellee moved in tbis court to affirm tbe judgment of the court below, or to dismiss tbe appeal, and a brief was filed by Mr. Lambert and Mr. Baker in support of tbe motion. Tbe grounds of the motion were: (1) That tbe record showed there was an issue of fact in tbe court below which was tried upon evidence admitted by tbe appellants, and that no exception or objection was taken to tbe ruling of tbe court thereon; and (2) that tbe record failed to set out any point of law that was submitted to the court below for its decision, nor did it show that any exception was taken to tbe ruling of tbe court on tbe facts of tbe case. A brief in opposition to tbe motion was filed by Mr. Beach and Mr. Adkins on behalf of tbe appellants. Tbe motion was denied by tbe court on March 10, 1904, no opinion being filed.)</p> <p>Tbe Couet in tbe opinion stated tbe case as follows:</p> <p>This appeal is from an order of the supreme court of tbe District of Columbia directing a discharge on habeas corpus of Harry B. Harris, an alleged minor, from an enlistment in the marine corps of tbe Hnited States, upon tbe application of bis father, George F. Harris.</p> <p>The petition for tbe writ of habeas corpus was filed on December 9, 1903, and by tbe petition it is alleged that on or about tbe 2Tth day of July, 1903, without the knowledge or consent of tbe father, Harry F. Harris, the minor son of tbe petitioner, enlisted in the marine corps of tbe United States at tbe marine barracks, in tbe city of Washington, District of Columbia, and that said Harry F. Harris was, at tbe time of filing said petition, in tbe care and custody of tbe officers of the United States at said barracks ; that tbe petitioner never relinquished bis claim and right as father of bis said minor son, and is entitled to tbe legal care and custody of him until he arrives at the age of 21 years, — his then age being about 19 years; that the petitioner, tbe father, bad demanded tbe release of bis son, tbe said Harry F. Harris, from tbe custody of tbe persons who were then detaining him, but that said officers claimed tbe right to detain him by reason of tbe fact that be bad enlisted in tbe marine corps for tbe period of four years. Tbe petitioner then avers that bis said minor son had no authority to enlist in said marine corps without bis consent, and that be bad no right to deprive tbe petitioner of tbe care and custody of bis person, and therefore tbe petitioner is entitled to have bis said minor son released and discharged from said enlistment.</p> <p>Tbe writ was issued as prayed, and a return made thereto, in which tbe respondents Brigadier General George E. Elliott, commandant United States marine corps, and Major Randolph Dicldns, commanding officer marine barracks, say that they bold tbe said Harry E. Harris by tbe authority of tbe United States as a private in tbe marine corps; that be enlisted at Washington city, District of Columbia, for the term of four years from tbe date of said enlistment, and that at the time of bis enlistment be, tbe said Harry E. Harris, did solemnly swear that he was 21 years and 6 months of age; and that, if tbe allegation in regard to bis age made by his father be true, and tbe enlistment by him was unlawful, be has fraudulently received pay and allowance from the United States, and has committed tbe crime of fraudulently enlisting and fraudulently receiving pay and allowance, in violation of the provision of the statute in such cases provided. With tbe return were filed two exhibits, one showing that on December 10, 1903, charges were preferred against tbe said Harry E. Harris for swearing that be was, at tbe date of bis enlistment, 21 years and 6 months of age; and tbe other, showing tbe affidavit made by said party at tbe time of bis enlistment, stating bis age, and declaring bis desire to enlist in tbe marine corps for tbe term of four years. And, by tbe articles of enlistment, it was declared and agreed as follows:</p> <p>“I, Harry Ered Harris, born in the United States, State of Maryland, county of Montgomery, etc., aged twenty-one years, and by occupation a plunger, do hereby acknowledge to have voluntarily enlisted, this 27th day of July, 1903, as a private in tbe United States Marine Corps, U. S. Navy, for tbe period of four years, unless sooner discharged by competent authority,” etc.</p> <p>To tbe return of tbe respondents to tbe writ a replication was entered, and a stipulation of counsel was filed, whereby it was agreed that the son of the petitioner was, at the time of bis enlistment, living at borne with his father, and had not been emancipated by him, and that the arrest mentioned in the return did not occur until after the writ of habeas corpus had been served upon the respondents.</p> <p>On the case thus presented, the court below, by its order of December 22, 1903, discharged the party from the enlistment, and from this order the United States attorney for this District, by the direction of the Secretary of the Navy, and the Attorney General of the United States, prayed an appeal to this court, for and on behalf of the respondents to the writ.</p>

<p>IN ERROR to the Police Court of the District of Columbia.</p> <p>The Couet in the opinion stated the ease as follows:</p> <p>It is understood that this is a-test case to determine the question which has been raised as to the validity of an act of Congress entitled “An Act to Provide for the Removal of Snow and Ice from the Sidewalks of the District of Columbia, and for Other Purposes,” approved February 10, 1904 (33 Stat. at L. 12, chap. 156), for the violation of which, consisting in the failure to remove snow and ice from the sidewalks in front of lots 62 and 63, in square 555, in this city, the appellant was adjudged to be guilty by the police court. The act in question is as follows:</p> <p>“Be it enacted, * * * [etc.], That it shall be the duty of every tenant or occupant of any lot or lots of ground -within the fire limits of the District of Columbia, improved by a house or building adjacent to any improved sidewalk, within the first four hours of daylight after the ceasing of any fall of snow, to cause said snow to be removed from the paved sidewalk adjacent to such lot or lots to the extent in length to which said lot or lots abut thereon and to the extent in breadth of not less than 6 feet, and, if such improved sidewalk be not of such width, then to the extent of the width thereof; and, in the event any snow that may have fallen shall, before its removal, become so hardened by freezing or otherwise that it cannot be removed without great difficulty, or if at any time ice shall have formed on any such improved sidewalk by the freezing of rain, hail, melted snow, or in any other manner, it shall be the duty of such tenant or occupant, within the first four hours of daylight thereafter, to sprinkle, or cause such snow or ice, to the extent aforesaid, to be sprinkled, with sand, sawdust, or other such substance. And for any violation of the provisions of this section such tenant or occupant shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of $5 and costs, or by imprisonment in the workhouse of the District of Columbia not exceeding five days, and by an additional fine of $5 and costs, or by additional imprisonment in the workhouse of the District of Columbia, not exceeding five days for each additional twenty-four hours aftei the expiration of the time hereinbefore provided that such tenant or occupant shall suffer or permit such snow or ice to remain without being sprinkled or removed as hereinbefore provided.</p> <p>“Sec. 2. That it shall be the duty of the commissioners of the District of Columbia, as soon as practicable after the ceasing of any fall of snow, or after the accumulation of ice, on the paved sidewalks of the District of Columbia in front of and adjacent to public buildings, public squares, and public reservations in the said District owned or leased by said District, to cause such snow or ice to be removed, and also to cause the same to be removed from all cross walks of improved streets and places of intersection of alleys with improved sidewalks; but, in the event of inability to remove such accumulation of snow or ice by reason of the hardening thereof, it shall be their duty, as soon as practicable, to cause such paved sidewalks, cross walks, and places of intersection of alleys with improved sidewalks to be sprinkled with sand, sawdust, or other such material.</p> <p>“Sec. 3. That it shall be the duty of the owner or owners of every vacant or unimproved lot within the fire limits of the District of Columbia fronting or abutting upon a paved sidewalk, within the first four hours of daylight after the ceasing of any fall of snow, as set forth in § 1 hereof, to cause such snow to be removed from the paved sidewalk in front of such lot or lots in the same manner, and to the same extent, and subject to the same penalty, as provided in said section; and in the event any snow that may have fallen shall, before its removal, become so hardened by freezing or otherwise that it cannot be removed without great difficulty, or if at any time ice shall have formed on any such sidewalk by the freezing of rain, hail, melted snow, or in any other manner, it shall be the duty of such owner or owners, within the first four hours of daylight thereafter, to sprinkle, or cause such frozen snow or ice, to the extent aforesaid, to be sprinkled, with sand or sawdust, or other such substance; and for failure to do so such owner or owners shall be subject to the same penalty provided in § 1 of this act.</p> <p>“Sec. 4. That in the event of the failure of any such owner or owners of any vacant or unimproved lot to cause the removal of sticb snow or ice, or to sprinkle tbe same as hereinbefore provided, it shall be the duty of the commissioners of the District of Columbia, as soon as practicable after the expiration of the time herein provided for the removal or sprinkling thereof, to cause the snow or ice in front of such lot to be removed, or to cause the same to be sprinkled as hereinbefore directed to be done by such owner or owners; and upon each and every such removal or sprinkling by them they shall assess the sum of $1 against each such lot, and where any such lot has a frontage in excess of 25 feet an additional sum of $1 for each additional frontage of 25 feet or fractional part thereof; which said assessment shall be a lien on such lot when entered of record on the tax records of the District of Columbia, and to continue until paid, and shall be added to the general tax annually levied on such lot, and shall be collected in the same manner and as part of such general tax: Provided, however, that £uch removal or sprinkling by the commissioners of the District of Columbia, and assessment therefor, shall not relieve the owner or occupant from the penalty herein-before provided for failure to remove or sprinkle such snow or ice.</p> <p>“Sec. 5. That it shall be the duty of every owner of any unimproved or nontenanted improved lot or lots, and of the tenant or occupant of any improved lot or lots of ground in the District of Columbia, within three days after notice to do so by the commissioners, to cause to be cleaned off and removed all dirt, sand, gravel, or other refuse matter that may fall, wash, or be placed upon any paved sidewalk adjacent to such lot or lots in the District of Columbia, subject to the same penalty provided in § 1 of this act.</p> <p>“Sec. 6. That in the event of failure on the part of any owner, tenant, or occupant of any improved or unimproved lot or lots of ground in the District of Columbia to comply with the provisions of the preceding section of this act within five days after the notice hereinbefore provided, it shall be the duty of the commissioners of the District to cause the removal of such accumulation of dirt, sand, gravel, or other refuse matter; and upon any and every such removal by them they shall make an assessment on account thereof at the same rates and under the same provisions named in § 4 of this act.</p> <p>“Sec. 7. That, to enable the commissioners of the District of Columbia to comply with the provisions of §§ 4 and 6 of this act, the sum of $5,000 is hereby appropriated, one half out of the revenues of the District of Columbia and one half out of any money in the Treasury of the United States not otherwise appropriated: Provided, however, that all assessments collected under the provisions of this act shall he deposited in the Treasury of the United States to the credit of the appropriation herein made, and shall form a continuous fund for the purpose of complying with the provisions of said §§ 4 and 6.</p> <p>“Sec. 8. That all prosecutions under this act shall be in the police court of the District of Columbia, in the name of said District, and by its attorney or one of -his assistants.</p> <p>“Sec. 9. That the act of Congress approved March 2d, 1897, entitled, 'An Act for the Pemoval of Snow and Ice from the Sidewalks, Cross Walks, and Gutters in the District of Columbia,’ be, and the same is hereby, repealed.”</p> <p>1. The law is a legal éxereise of the police power; it does not create an illegal method of taxation, and it does not take private property for public use. Com. v. Goddard, Thacker, Or. Cas. 420; Olinton v. Welsh, 166 Mass. 133; Appeal of Goddard, 16 Pick. 504; Carthage v. Frederick, 122 N. T. 268; Flynn v. Ganton, 40 Md. 312; State v. Mahon (Conn.) 55 Atl. 591; Lincoln v. Janesch, 63 Neh. 707. Contra: Gridley v. Blooming-ton, 88 Ill. 554; Chicago v. O'Brien, 111 Ill. 532; New Hampshire v, Jackman, 42 L. P. A. 438.</p> <p>2. The police power is not subject to any definite limitations, but is coextensive with the necessities of the case and the safeguard of the public interests. Camfield v. United States, 167 IJ. S. 518.</p> <p>3. The law is plain that adjacent lot owners can be legally assessed for the construction and repair of sidewalks and curbing in front of their property. Willard v. Presbury, 14 Wall. 676; Bowman v. Boss, 167 IJ. S. 548; Wilson v. Lambert, 168 IJ. S. 611. It has been repeatedly held, also, that owners may be assessed for sprinkling and sweeping the streets and sidewalks. Beinken v. Fuehring, 130 Ind. 382; Beaumont v. Wilkesbarre, 142 Pa. 198; Washington v. Nashville, 31 Tenn. 177; Lumsden v. Cross, 10 Wis. 282. Owners may be required to build and repair sidewalks, and, on default, the work may be done by the city and the cost assessed to them. Bonsall v. Lebanon, 19 Ohio, 418 ; Paxson v. Sweet, 6 Humph. 368; Washington v. Nashville, 31 Tenn. 177.</p> <p>4. Laws requiring property owners to remove ice and snow from the sidewalks do not free the municipality from liability where any such existed. 15 Am. & Eng. Enc. Law, 448, note 3, and cases cited. Nor do such laws render the owner liable for accidents caused by reason of his failure to observe the law. 15 Am. & Eng. Enc. Law, 451, note 5, and cases cited.</p>

HEARING on an appeal by tbe defendant from a decree of tbe Supreme Court of tbe District of Columbia in a suit in equity by tbe administrator of a deceased partner against tbe surviving partner for a partnership accounting.

Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia dismissing a bill for the establishment of a title to real estate, and for an injunction.

<p>Hearing on. an appeal from a decree of the Supreme Court of the District of Columbia in a suit in equity.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by the plaintiff from a judgment of tbe Supreme Court of the District of Columbia entered upon a verdict directed by the court in an action ag'ainst three defendants to recover damages for personal injuries.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This action was brought by the appellant against the appellees, being the District of Columbia, James K. Murphy, and the Anacostia & Potomac Biver Bailroad Company, to recover damages suffered by the plaintiff, occasioned, as it is alleged, by the joint or concurrent negligence of the defendants. The injury to the plaintiff is alleged to have been caused by an obstruction erected or placed on one of the streets of the city of Washington, over which the railroad defendant was operating its cars for the carriage of passengers for hire; and the obstruction causing the injury is alleged to have been erected or caused, or authorized to he erected, by the District of Columbia, and James E. Murphy, a contractor under the said District of Columbia, for the construction of a certain tunnel or sewer along and under certain streets of the city of Washington.</p> <p>The declaration contains two counts, and sets out with particularity the acts and doings of the defendants, and their relation to each other, and their respective duties and obligations to the public traveling on the railroad over said streets of the city-.</p> <p>It is alleged that the District of Columbia, a municipal corporation, having imposed upon it by law the duty and obligation of keeping and maintaining in good and safe condition and repair the streets and highways of the city of Washington, among others, Canal street, South Capitol street, and E street south, in said city, contracted with the defendant, James E. Murphy, for the excavation and construction of a certain public sewer along and under certain of said streets of said city, among others, to wit, Canal street, South Capitol street, and E street south, and that such sewer was in course of construction, at the time of the happening of the injury complained of, under said contract; and that the defendant the Anacostia & Potomac Eiver Railroad Company, as owner, was operating said railroad over and upon said streets, and as public carrier of passengers was bouná to take and carry all passengers safely and without unnecessary exposure to danger, including the plaintiff. And it is further alleged that, on the 4th day of March, 1901, the plaintiff, while a passenger on the car of the defendant railroad company, going west on E street south, at or near its intersection with Canal street, through the carelessness and negligence of the said defendant, its servants or employees, in the management and operation of its cars, and the unsafe condition of its roadway, by reason of certain obstructions therein, was jerked from, pulled or knocked off, or thrown from, the said car; and that he, the said plaintiff, was then and there precipitated into and down a deep excavation then and there being made, or caused to be made, by the defendants the said District of Columbia and the said James K. Murphy, and which said obstruction was allowed and permitted to remain in said dangerous and unsafe position in said street and in near proximity to the tracks of said railroad, and without safe and proper guards or barriers against accidents to passengers on said street cars while passing the same; and that, by being so jerked from or knocked off saidnar, the plaintiff was greatly injured. That the injury to the plaintiff was caused by the concurrent negligence and want of care of the said defendants; that the said District of Columbia, and the said J ames K. Murphy, the contractor, in placing and permitting to be constructed, and to remain, the said dangerous and unsafe obstruction, post, or fence, in the public street, to the peril and great danger of the passengers on said cars passing along said street, thereby contributed to causing the injury to the plaintiff; and of which said causes producing the injury the defendants had notice. This is but the substance of what is alleged.</p> <p>The defendants pleaded severally the general issue plea of not guilty, and the case was tried before court and jury.</p> <p>The plaintiff produced evidence on his part in support of the allegations contained in the declaration; but the defendants offered no evidence whatever, but rested the case upon the evidence offered by the plaintiff. They thereupon severally offered prayers to the court that the jury be instructed that there was no sufficient evidence upon which a verdict could be found for the plaintiff, and these prayers were granted by the court, and a verdict for the defendants was rendered accordingly. To this ruling the plaintiff excepted, and has brought the casé to this court on appeal.</p> <p>1. While the appellant may not have been guilty of contributory negligence as matter of law in riding on the running board of the car, he took all the risks incident to that exposed position, including the risk of coming into contact with a lawful obstruction in the public highway, which would not have interfered with him had he been inside the car. Harbison v. R. Co. 9 App. D. C. 60.</p> <p>2. Whatever may be said as to the presumption of negligence against the railroad company, upon which the appellant claimed to be a passenger, and which, it may be claimed, owed to the appellant a high degree of care, no such presumption can arise against Murphy, who was a stranger to the plaintiff, and who owed him no duty arising out of the contract of carriage or any other contract. Washington Gaslight Co. v. Echloff, 4 App. D. C. 174. There is no proof of negligence on the part of the defendant Murphy. Ashton v. District of Columbia, 14 App. D. C. 577.</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 plaintiff from a judgment of the Supreme Court of the District of Columbia, entered upon the verdict of a jury directed by the court in an action to recover damages for personal injuries.</p> <p>The Court in the opinion stated the case as follows':</p> <p>The appellant, Jane O’Dwyer, sued as plaintiff in the supreme court of the District of Columbia to recover damages for personal injuries sustained by her through falling on the sidewalk on Seventh street, between O and P streets northwest, in consequence of slipping on some green vegetable matter claimed to have been on the sidewalk through the negligence of the appellees, the Northern Market Company and the District of Columbia, defendants in the court below. The market company owns and conducts a building for market purposes on the northwest corner of Seventh and 0 streets northwest in this city, and its building extends northward some distance on Seventh street. It is a private corporation organized under the laws of this District. Besides its market building proper, it owns all the adjacent property on Seventh street between O and P streets, except two pieces, and a store, which was part of this property, and in front of which the accident occurred which caused the appellant’s injury, it rented to a Mrs. Cohen, who kept there a secondhand clothing and jewelry store.</p> <p>The mornings of Mondays, Wednesdays, and Fridays, and the afternoons of Saturdays, were market days; and on these 2uarket days for many years country dealers and hucksters were in the habit of occupying about 3 feet or more of the sidewalk on the west side of Seventh street in front of the market building and adjacent thereto with their baskets, trays, and other receptacles, and displaying there for sale their green produce, fruits, and other articles. The stands, barrels, and trays, when not in use, were kept by the market company on a piece of ground adjoining the company’s building and owned by it. On market days the hucksters and country dealers lined the sidewalk on the west side of Seventh street all the way from O to P street, except in front of the two pieces of property which were not owned by the market company, and such was the condition on the day on which the appellant met with her accident. The market master was accustomed to collect toll of some kind from these hucksters and dealers according to the amount of space which they occupied, although it is stated that they had no formal permit from the company to occupy the sidewalks, and that the company had no permit from the District of Columbia to occupy them.</p> <p>In the lease from the market company to Mrs. Cohen, in front of whose premises the appellant’s accident occurred, there was this provision:</p> <p>“It is understood and agreed that country traders and teams will be allowed to occupy the space in front of said store to the curb for displaying and selling goods, and that the clerk of the market will be allowed to collect for same and see that the space is cleaned up after the persons and teams have left.”</p> <p>It is testified that a bright mulatto man, on the day of the accident to the appellant, had his stand on the sidewalk immediately in front of Mrs. Cohen’s store; that he dealt in potatoes, apples, onions, and such like things; that the sidewalk there was literally covered with refuse vegetable matter; that the whole sidewalk for a long distance was so covered; that it was in a filthy condition during the summer of 1901, during which, on August 26, the accident to the appellant occurred; and that the appellant slipped on a piece of such refuse vegetable matter and was injured.</p> <p>At the trial the facts substantially as here stated were developed by the- testimony on behalf of the plaintiff. The defendants offered no testimony, and each severally moved for direction of a verdict in its favor on the ground that the plaintiff had made out no cause of action against either of them. The motion was allowed, and there was verdict for the defendants, and thereupon judgment, from which the plaintiff has appealed.</p> <p>1. The owner of property abutting upon sidewalks or streets has no more control over the same, and no greater rights in regard thereto, than any other citizen of the United States. Mat-tingly v. District of Columbia, 97 U. S. 687; Gibbons v. District of Columbia, 116 U. S. 404; Railroad Co. v. District of Columbia, 132 U. S. 1; District of Columbia v. Woodbury, 136 U. S. 450. The right of control of the District of Columbia over the streets and sidewalks carries with it the obligation to keep those streets and sidewalks free from obstruction. Barnes v. District of Columbia, 91 U. S. 540.</p> <p>2. A passenger who, leaving a train, walks along a station platform on which other passengers are walking ahead of him, and falls by stepping on a banana skin and is injured, cannot recover from the railroad company, if it does not appear how long the banana skin had been there, or how it got there. Goddard v. R. Go. 176 Mass. 52. See also 21 Am. & Eng. Enc. Law, 2d ed. p. 720; District of Columbia v. Boswell, 6 App. D. O. 402.</p> <p>3. The occupier, and not the landlord, is bound, as between himself and the public, so far to keep the buildings and other structures abutting upon highways in repair that said highways may be safe for the use of travelers thereon; and such occupier is prima facie liable to third persons for damages arising from any defect. Lowell v. Spaulding, 4 Cush. 277; Oakham v. Holbrook, 11 Cush. 299; Rich v. Basterfield, 4 C. B. 783; Mullen v. Morrill, 126 Mass. 545; Kirby v. Market Asso. 14 Gray, 249; Stewart v. Putnam, 127 Mass. 406.</p> <p>4. The appellant did not have the right to presume that the sidewalk was in a safe condition, because, according to her story, she had knowledge that it was not kept in proper condition, and she was therefore guilty of contributory negligence. Dant v. District of Columbiaj 3 MacArth. 270; Cooley, Torts, 674; R. Co. v. Gullettj 15 Ind. 487; Indianapolis v. Deane, 101 Mass. 455.</p> <p>1. It is not uncommon for a market to be held in a public street, and it has long been recognized that such use of a street may be lawful. Atty. Gen. v. Cambridge, L. 37. 6 H. L. 303; Nightingale, Petitioner, 11 Pick. 168; Henkel v. Detroit, 49 Mich. 249; Hoffman v. Schultz, 31 How. Pr. 385. Where a place had been used as a market to which persons resorted to expose articles for sale, it was held to be a sufficient answer to an indictment for a nuisance that the same had been enjoyed as a market place for more than twenty years. Rex v. Smith, 4 Esp. 109. In Black v. Cleveland (Ohio) 3 West. L. Month., it was held that a municipal corporation is not liable to an individual for damages sustained by him in driving along a street appropriated to market uses occasioned by the street being obstructed by market teams, wagons, and marketmen.</p> <p>2. The sole question respecting the District of Columbia is whether it is liable for failure to exercise its police power. The public demanded certain uses of this street for market purposes, and, as shown by the record, the administrative officers of the District government have refrained from interfering by the exercise of police power. The enforcement of the laws, whether general or municipal, seems generally to be regarded as a public, governmental function, the municipality not being liable for the acts of its officers in furtherance of such object, though they may act negligently, or under void judgments or ordinances. 20 Am. & Eng. Enc. Law, 2d ed. p. 1195. The general rule is that a municipal corporation is not liable in damages for a failure to enact ordinances with reference to subjects within its jurisdiction, or failure to enforce ordinances after their enactment. 20 Am. & Eng. Enc. Law, 2d ed. p. 1198. See also District of Columbia v. Monroe, McArth. & M. 348.</p>

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia entered upon a verdict directed by the court in an action for damages for breach of contract.

Hearing on an appeal by tbe relator from a judgment of tbe Supreme Court of tbe District of Columbia dismissing' a petition for tbe writ of mandamus to tbe Secretary of War.

Hearing on an appeal (specially allowed) by the plaintiff from an order of the Supreme Court of the District of Columbia, sustaining a demurrer to a declaration consisting of two counts, in an action to recover damages for personal injuries.

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

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

Heading on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia entered upon a verdict directed by tbe court in an action upon a fidelity insurance bond. Tbe Court in tbe opinion stated tbe case as follows: Tbis is an appeal from a judgment, entered for tbe defendant, tbe United States Fidelity & Guaranty Company, upon a verdict returned by direction of tbe court, in an action upon a fidelity insurance bond.

<p>Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia upon a verdict directed by tbe court in an action of ejectment.</p> <p>The Court in the opinion stated tbe case as follows:</p> <p>This is an action of ejectment brought by tbe appellee, William A. Evans, against William J. Howard, to recover possession of lot 8 of R. B. Clark’s subdivision of square 594 in the city of Washington.</p> <p>It was agreed that both parties claimed title from a common source, namely, Bolden Evans, deceased, the plaintiff as heir at law and tbe defendant as executor.</p> <p>Tbe plaintiff testified as follows in support of bis claim of heirship:</p> <p>“That he was a brother of Bolden Evans; that he is about 70 years of age; and that he was bom near Richmond, Virginia, and that he now lives at Swansboro, which is situated near Richmond, — within a few miles; that Bolden Evans lived in Washington, D. C., at 224 L street S. W., that witness knew the house. and had visited his brother frequently; that Bolden Evans had lived in that house for a great many years, and that witness had visited him there at intervals of a year or two, once a year, and sometimes twice a year, stopping at the house with him; that Bolden had educated one of witness’s daughters and one of his sons; that they went to Washington and lived at his house and attended school there for about 2 years; that witness occasionally received letters from Bolden Evans, in which he was addressed as ‘brother;’ that he and Bolden were sons of the same parents; that they were born in Virginia, before the Civil War; that witness remembers his parents well; that they were both slaves; that his mother belonged to one master and his father to another; that they lived together as man and wife,'and recognized each other as such, and were so regarded by other slaves and people in the neighborhood; that his father was permitted by his owner to live with his mother, and his mother permitted by her owner to live with his father; that they were man and wife for great many years; that his mother bore 8 children to his father; that Bolden Evans was one of these and was 8 years older than witness; that all the children were born on the property of the owner of his mother, and continued to live there together and were raised by her; that they were all recognized by their father as being his children; that witness’s mother and father were also the mother and father of Bolden Evans; that she never had another husband and never lived or cohabited with another man; that his father had no other wife than witness’s mother, and he never lived or cohabited with any other woman than witness’s mother; that they were regarded as husband and wife in the community in which they lived; that witness’s mother died years before the war; that before the war his father was sold into slavery and taken to Texas, and that witness afterward learned that he died there; that he died before the war; that 3 of the children died when babies, and that the other 3, 1 older and the other 2 younger than witness were sold as slaves before the war and were taken South, he does not know where; that they were unmarried and had no children when they were taken from Richmond; and for more than 40 years witness has never heard from or concerning them; that he never knew or heard of their marrying or having any children; that he has continuously resided in the neighborhood where he and his brothers and sisters were born and raised; that he never knew of his brother Bolden Evans, or anyone else, ever having heard of these children or of their marrying; that witness frequently visited his brother Bolden; that he visited him last in the fall preceding his death and stayed several days in Washington, living at Bolden Evans’s house and sleeping in the same bed with him; that Bolden Evans introduced him to a number of his friends as his brother; that Bolden never had any children; that he had been married, but that his wife was dead and left no children; that Bolden lived in one house and rented the other.</p> <p>“On cross-examination: Born a good while before the war; was about 30 years old when war broke out; that he was a slave; that his father and mother had 8 children in all; that 3 died young and 3 others were carried down South; that since then he has never heard of or from them; does not know whether they married or not; denied that he had trouble with his brother when he visited him in Richmond; admitted that his brother slept in his shop while visiting him; he was a shoemaker by occupation; brother owned no other real estate at the time of his death, except the house and lot where he lived, and the one in the rear, as far as witness knows; that when his father went South to Texas he was too old a man to have more children.</p> <p>“Redirect: That 3 children died in infancy; that the other 3 who went down South were not married and had no children at that time; that he has not heard of them for more than 40 years.”</p> <p>Other witnesses were introduced to corroborate the foregoing, and their evidence tended to show that Bolden Evans always recognized plaintiff “as his brother and his only living relative,” and that 2 of the latter’s children lived with him about 2 years and attended school in Washington. It was shown that Bolden Evans owned two lots in square 594 numbered, respectively, 8 and 32, and had caused their lines to be established by an official survey in August, 1891; that lot 8 fronted on L street and was occupied by a brick house iu which he lived; that lot 32 fronted Clark street, and was occupied by a frame house which he leased to a tenant; that the fences were separate, and that the lots were separated by a public alley 4 feet wide.</p> <p>It was also shown that Bolden Evans died February 22, 1901, leaving neither widow nor issue, and the defendant, as his executor, at once entered into possession of both lots, and has collected. the rents therefrom since that time.</p> <p>Defendant then read in evidence the will of Bolden Evans as follows:</p> <p>The last will and statement of me Bolden Evans being of sound and disposing mind and wishing to arrange all of my do earthly affairs in view of death I order and direct that Rev. executor William J. Howard, shall be [administrator]* of this my last will and statement and that he shall see that each of my lodges in represented at my funeral and that they pay their share of the funeral expenses. And that my funeral take place in Zion Baptist church.</p> <p>I also direct that all of my just debts shall be paid and that in square 594 sublot 32 all of my real estate shall be sold and divided between my three lodges in three equal shares, Japa y3 Lodge of Masons No. 5 Rising, y¡ Sun Lodge No. 1365 G. H. O. of O. F. of Oddfellows; Knights of Jerusalem y> vno 7 St. Thomas Bro. Lillies side.</p> <p>I order and direct all of my household goods and furniture shall be equally divided between Martha Ann Fantroy, Mary Westroy, and Wiley Westroy in view of there kindness to me in my sickness. I also direct that my real estate be not sold for one year after my death and that the proceeds shall go to the erection of a suitable monument over me and my beloved wife in Hormonia Cemetry and that George W. Morgan shall be my undertaker.</p> <p>his</p> <p>BOLDEN x EVANS.</p> <p>mark</p> <p>It was then proved that the better house has -been rented for $8.50 per month, and the other for $7; that testator was a member of three orders, or lodges, named in the will.</p> <p>The testimony having been closed, the defendant requested the court to give the following instructions'to the jury:</p> <p>“1. The jury are instructed, as matter of law, that no sufficient proof of the marriage of plaintiffs father and mother has been produced or offered in evidence, and that their verdict must be for the defendant.</p> <p>“2. The jury are instructed, as matter of law, that by plaintiff’s own testimony it is left uncertain whether there are not other heirs at law of the said decedent, Bolden Evans, and, if others, how many; he is therefore not entitled to recover in this suit, and their verdict must be for the defendant.</p> <p>“3. The jury are instructed that by the terms of the will of said decedent, Bolden Evans, the title to the real estate in litigation passed under said will, and the plaintiff is not entitled to recover.”</p> <p>These were refused, and the court, at the request of the plaintiff, directed a verdict for the plaintiff. From the judgment rendered thereon the defendant has appealed.</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 by the United States from an order of the Supreme Court of the District of Columbia granting a motion to quash an indictment under the provisions of § 939, D. C. Code. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the United States from an order of the Supreme Court of the District of Columbia quashing an indictment under § 939, D. C. Code. The facts are sufficiently stated in the opinion.

<p>Hearing on an appeal by tbe United States from an order of tbe Supreme Court of tbe District of Columbia quashing an indictment under § 939, D. C. Code.</p> <p>Tbe facts are sufficiently stated in tbe opinion.</p>

<p>Hearing on an appeal by tbe complainant from a decree of tbe Supreme Court of tbe District of Columbia dismissing tbe petition in a suit to annul a marriage on tbe ground of fraud.</p> <p>(Before tbe bearing on tbe merits Mr. Kenyon, wbo bad. been appointed by tbe court below under § 982, D. C. Code, to enter an appearance for tbe defendant and actively defend tbe cause, moved in this court for leave to file a typewritten brief, on tbe ground that tbe defendant below and appellee bere refused to contest tbe case and there was no money available to pay for printing tbe brief. Tbis motion was denied by tbe Court, and tbe appeal was beard with no brief having been filed on behalf of tbe appellee.)</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 upon the verdict of the jury directed by the court iu an action for an alleged libel. The Court in the opinion stated the case as follows: This is an action for an alleged libel, brought by Charles A. De Arnaud against Fred. O. Ainsworth. The judgment below was for the defendant, and the plaintiff has appealed.

Hearing on several separate appeals from decrees of the Supreme Court of the District of Columbia in suits in equity for the construction of will. The Court in the opinion stated the case as follows: The bill in this case was filed for the purpose of obtaining a judicial constnietion of the last will and testament of the late Ethelbert Carroll Morgan, deceased.

<p>Hearing on a motion by the complainant to dismiss or affirm a decree of the Supreme Court of the District of Columbia in a judgment creditor’s suit.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on. an appeal from an order of tbe Supreme Court of the District of Columbia, sitting as a Court of Probate, grant ing joint administration upon the estate of a decedent.</p> <p>The facts are sufficiently stated in the opinion.</p>

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

<p>Hearing on an appeal (specially allowed) from an order of the Supreme Court of the District of Columbia overruling a motion to vacate a return of personal service upon a nonresident, attempted to be made a party to the action.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This is a special appeal that has been allowed from an interlocutory order.</p> <p>On July 1, 1903, Jacob H. Lichliter, as executor of Thomas Wilson, deceased, began this action in the supreme court of the District of Columbia against the Supreme Council, Royal Templars of Temperance, a corporation organized under the laws of the State of New York, and engaged in the business of insuring the lives of its members, to recover upon a beneficiary certificate, of the apparent value of $2,000, that had been issued to one James E. Dexter on March 27, 1897. It is alleged that in the said certificate the beneficiary directed that, in case of his decease, the amount promised therein should be paid to his wife, Emily E. Dexter; that on April 30, 1900, he assigned the said certificate to Thomas Wilson by instrument in writing; that on June 5, 1900, the said Emily E. Dexter, in writing, also assigned the same to said Wilson, and that said James E. Dexter died on June 17, 1902. Other allegations show the death of Thomas Wilson, the probate of his will, the issue of letters testamentary to the plaintiff, and the necessary facts to show the liability of the defendant.</p> <p>On June 20, 1903, the defendant filed a plea and petition, as it is entitled, admitting indebtedness upon said certificate in the sum of $1,713.20, and alleging that Benjamin E. Dexter makes claim to the proceeds without collusion with defendant. ' Defendant prayed leave to deposit the sum admitted to be due in the registry of the court, and that an order be issued requiring said Benjamin F. Dexter to appear and maintain or relinquish his claim, and that in case of failure to appear his claim be declared barred.</p> <p>The petition fails to state the residence of said Benjamin E. Dexter.</p> <p>This action was taken under the authority of § 1531 of the District Code, which reads as follows:</p> <p>“Upon affidavit by the defendant, in an action upon contract or for the recovery of personal property, that a third party, without collusion with him, has or makes claim to the subject of the action, and that he, the defendant, is ready to pay or dispose of the same as the court may direct, the court may make an order for the safe keeping, or for the payment or deposit in court, of the subject of the action, or the delivery thereof to such person as it may direct, and also an order requiring such third party to appear in a reasonable time, and maintain or relinquish his claim against the defendant; and if said third party, having been served with a copy of the order by the marshal, fail to appear, the court may declare him barred of all claim in respect to the subject of the action against the defendant therein; but if he appear he shall be allowed to make himself defendant in the action in lieu of the original defendant, who shall be discharged from all liability to either of the other parties in respect to the subject of the action on his compliance with the order of the court for the payment, deposit, or delivery thereof.”</p> <p>On July 20, 1903, an order was made directing the deposit of the money as prayed, and commanding Benjamin E. Dexter to appear on or before December 21, and maintain or relinquish his claim as provided in the foregoing section of the Code. A copy of this order was returned November 19 with an indorsement showing personal service upon Benjamin E. Dexter in the State of New York, which was signed by James B. Bostwick, deputy United States marshal for the southern district of New York, with affidavit of the fact of service. On December 16, 1903, counsel for Benjamin E. Dexter filed a special appearance for the single purpose of the motion embodied therein to vacate and set aside the return aforesaid, on the ground that the order had not been personally served in the District of Columbia by the marshal thereof, as required by the Code, and was therefore of no legal effect. The motion expressly declared that the respondent “does not accept service herein, nor does he waive due service of process upon him.” On January 15, 1904, counsel for respondent filed an affidavit of W. H. Yan Steenburgh, an attorney residing in New York, which recites that as attorney for Benjamin E. Dexter, a resident of New York, he commenced an action on June 15, 1903, against the defendant in the county of Erie, New York, to recover the amount due under said certificate, to which defendant made an answer, and which cause is upon the calendar of the court for hearing. The affidavit refers to a certified copy of the pleadings in said cause, attached thereto, from which it appears that plaintiff resides in the State of New York, and that defendant is a corporation created under the laws of that State, and has its principal office in the city of Buffalo therein. The proceedings show that the action is upon the same certificate sued on in this case, and that the plaintiff claims as assignee of Emily E. Dexter under date of June 18, 1902. The affidavit also sets out § 820 of the New York Code of Civil Procedure, which has the same general object as § 1531 of the District Code before quoted.</p> <p>On February 12, 1904, the court overruled the said motion, with leave to respondent to plead within 10 days. From this order the special appeal has been allowed.</p> <p>The filing and reliance by the appellant-claimant upon the affidavit setting forth the facts and merits of his claim and case and the pendency of a suit brought by him for the same cause of action, as he claims, constituted a voluntary general appearance in the case. Savings & Loan Co. v. Pendleton, 14 App. D. C. 388; Railway Co. v. McBride, 141 U. S. 127; Wabash W. R. Co. v. Brow, 164 U. S. 278; Henderson v. Carbondale Co. 140 IT. S. 40; 2 Enc. PI. & Pr. p. 636; Works, Courts & Jurisdiction, pp. 227, 228, 231; Kaw Valley L. Ins. Co. v. Limke, 40 Kan. 144; Burdette v. Corgan, 26 Kan. 104; Grantier v. Rosecrance, 21 Wis. 491; Sugg v. Thornton, 132 IT. S. 529; Evans v. lies, 7 Ohio St. 234; Kinkade v. Meyers, 17 Or. 470; Green v.Gi-een, 42 Kan. 654; Aldersonv. White, 32 Wis. 308; 3 Cyc. Law & Proc. pp. 504, 511, 515, 516; Tower v. Moore, 52 Mo. 118; Abbott v. Semple, 25 111. 92; Heard v. Patton, 27 La. Ann. 542; Grizzard v. Brown, 2 Tex. Civ. App. 584; Mahaney v. Penman, 11 N. Y. Sup. Ot. 603; Re Macaulay, 27 Hun, 577; New Orleans v. Walker, 23 La. Ann. 803; Scarlett v. Hicks, 13 Fla. 314; Omaha Nat. Bank v. Farmers Nat. Bank, 45 Neb. 29.</p>

<p>Hearing on an appeal by the accused from a judgment of conviction of the Supreme Court of - the District of Columbia, entered upon the verdict of a jury in a criminal prosecution for assault with intent to kill.</p> <p>The facts are sufficiently stated in the opinion.</p>

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

Hearing on an appeal (specially allowed) by tbe plaintiff from an order of tbe Supreme Court of tbe District of Columbia denying a motion for judgment under tbe 73d Hule of that court. The Court in the opinion stated the facts as follows: This is a special appeal, taken from the refusal of the court below to enter a judgment for the plaintiff, Arthur N. Meloy, executor of Isabella N. Nourse, under the 73d rule of that court.

The facts, in brief, as disclosed by the bills of exceptions, are these, — ■ and there seems to be no controversy in regard to them: The plaintiff in error keeps or kept a tavern. On Sunday, August 7, 1904, about 9 o’clock in the evening, when the plaintiff in error had gone out, as he says, to take a walk, according to his custom, two members of the metropolitan police force entered by a side door a room to the rear of the barroom, used as a family dining room.

Hearing on an appeal by tbe respondent from a decision of tbe Board of Medical Supervisors of tbe District of Columbia, revoking the license of the respondent to practise medicine in the District of Columbia, on the ground of his alleged unprofessional and dishonorable conduct.

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

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

HbaeiNg on an appeal by tbe applicant from a decision of tbe Commissioner of Patents rejecting certain claims in an application for a patent. Tbe facts are sufficiently stated in tbe opinion.

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

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

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

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

<p>Hearing on motions by tbe appellees in two appeals from tbe Commissioner of Patents in interference cases, to dismiss the appeals on the ground that they were not taken within the time prescribed by the rules of this court.</p> <p>The facts are sufficiently stated in the opinion.</p>

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

<p>Hearing on an application by tbe accused in a criminal prosecution for tbe allowance of a special appeal to tbis court from an interlocutory order of tbe Supreme Court of tbe District of Columbia.</p> <p>Tbe facts are sufficiently stated in tbe opinion.</p>

The facts are sufficiently stated in the opinion. 1. The act (D. O. Code, § 901), being a penal one, is to be strictly construed, and all doubts resolved in favor of the defendant. Parry v. Croydon, 109 E. C. L. 568; 23 Am. & Eng. Enc. Law, p. 375; Bolles v. Outing Co. 175 U. S. 262; United States v. Harris, 177 U. S. 305. All parts of a statute should be considered together, and not one part by itself. Endlich, Interpretation of Statutes, p. 35; 23 Am. & Eng. Enc.

Hearing or an appeal by tbe defendants from a judgment of conviction of the Supreme Court of the District of Columbia sitting as a criminal court, entered upon the verdict of a jury finding them guilty on an indictment for conspiracy to defraud the United States.

<p>In Error to tbe Police Court of tbe District of Columbia.</p> <p>Tbe Court in tbe opinion stated tbe case as follows:</p> <p>Information was filed in tbe police court of tbe District-against tbe plaintiff in error, James Taylor, wherein be was charged with the unlawful occupation of a certain space of tbe sidewalk on the south side of B street northwest, between Seventh and Ninth streets, in this city, and offering for sale thereon certain farm and garden produce, without having such space assigned to him for that purpose, in violation of the police regulations of the District. To this information there was first a demurrer, and then a motion to quash interposed by the defendant, and both were overruled. Then the case came on for trial, apparently by the court without a jury, and the defendant was adjudged guilty and sentenced to pay a fine of $10. From the judgment against him he has brought his cause here in pursuance of exceptions noted at the trial.</p> <p>The bill of exceptions is most commendably brief, and in view of the importance of the questions sought to be raised, we trans-scribe it here in full:</p> <p>“At the trial of this cause, the District of Columbia, to maintain the issues on its part joined, offered and gave evidence tending to show that, on the day named in the information and on the south side of B street north, between Seventh and Ninth streets west, in the city of Washington, and District of Columbia, the defendant occupied a space on the south sidewalk of said B street 6 feet in width and 5 feet in depth from the curb, with trays, boxes, and barrels containing country produce which he offered for sale, and that the defendant had no permit from the market master of the wholesale market of the said city of Washington to occupy the said space and offer for sale the said produce.</p> <p>“And there the District of Columbia rested.</p> <p>“And, thereupon, to maintain the issues upon his part joined, the defendant offered and gave evidence tending to show that, for a period of from twenty-five to thirty years prior to the time of the trial, the said south side óf B street north had been continuously occupied by farmers, gardeners, and hucksters for the sale of vegetables and other country produce, whether of their own raising or not, and that the said south side of B street during the said time had been continuously used by such persons as a market for the sale of such articles.</p> <p>“And there the defendant rested.</p> <p>“And, thereupon, the said defendant, by his counsel, moved the court to discharge the defendant as not guilty of the charge laid in the information, upon the following grounds:</p> <p>“1. That the supposed regulation under which the said information was filed was void as being without authority of law, arbitrary, unreasonable, vague, and uncertain.</p> <p>“2. That the evidence failed to show that the certain space which, as alleged, the defendant occupied, and from which, as alleged, he offered for sale the articles aforesaid, was within 15 feet from the south front of the Center market as described and defined in the joint resolution No. 16, of the second session of the 54th Congress of the United States, approved February 20, 1897.</p> <p>“3. That the evidence failed to show that at the time of the offense alleged in the information the articles alleged to have been offered for sale were or were not of his own raising.</p> <p>“4. That the evidence failed to sustain the allegations and charge of the information.</p> <p>“5. That upon the whole evidence the defendant was not guilty of the charge alleged in the information; but the judge presiding overruled the said motion; to which action of the court the defendant, by his counsel, then and there excepted, etc.”</p>

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

Hearing on an appeal by the defendant from a judgment of conviction of the Supreme Court of the District of Columbia, sitting as a criminal court, after a verdict had been rendered finding him guilty of grand larceny. The Court in the opinion stated the case as follows: The appellant, Burt Nordlinger, was charged in an indictment, having two counts, with the commission of the offense of grand larceny.

Hearing oil au appeal by a guardian from an order of tbe Supreme Court of the District of Columbia, sitting as a probate court, stating her account and directing her to pay over to her successor a specified sum of money. The facts are sufficiently stated in the opinion.

<p>Hearing on an appeal by tbe accused in a homicide case from a judgment of conviction of tbe Supreme Court of tbe District of Columbia, sitting as a criminal court, on tbe verdict of a jury finding bim guilty of murder in tbe first degree.</p> <p>Tbe Court in tbe opinion stated tbe case as follows:</p> <p>Tbe appellant in tbis case, Augustus L. Sbaffer, was indicted on tbe 3d day of November, 1903, for tbe wilful and premeditated murder of bis divorced wife, Catharine Sbaffer, on tbe 22d day of August, 1903, on one of tbe public streets of tbe city of Washington. Tbe accused was arraigned and pleaded not guilty, and, upon trial by jury, be was found guilty of murder in the first degree as indicted. Many exceptions were taken by tbe accused in tbe course of trial; and upon sentence that be be banged, be has taken tbis appeal.</p> <p>Tbe crime as charged in tbe indictment is, that tbe accused feloniously, purposely, and of bis deliberate and premeditated malice, did, on tbe day named, assault tbe said Catharine Sbaffer, and then and there with a razor inflicted in and upon tbe right side of tbe neck of her, the said Catharine Sbaffer, one mortal wound of tbe length of 7 inches and of tbe depth of % of an inch, of which said mortal wound the said Catharine then and there instantly died.</p> <p>On the trial, the government proved the homicide as charged, to have been committed on the 22d day of August, 1903. There was no question made as to the commission of the crime by the accused; that was conceded. The accused and the deceased were married in the year 1891, and were divorced upon the application of the wife oh the 16th day of April, 1901. By the decree of divorce, the custody of their son, William* was given to the father, and the custody of their daughter to the mother, the deceased. For two or three weeks immediately prior to the homicide the accused had been seen loitering in the neighborhood of the corner of the street which was about half a square from the home of the deceased; and on several occasions during that period had accosted deceased in the street and attempted to induce her to grant interviews with him, which she refused to do. On one of these occasions, after the deceased had refused him an interview, the accused boarded a street car upon which the deceased was riding and rode for some distance thereon while she was on the car. On other occasions, he was seen frequently following her from place to place. On the Sunday night immediately preceding the homicide, he had followed her home, saying, as she entered the house, “God damn you, Kate, wait.” Three days before the homicide, the accused had called at about 11 o’clock in the evening, at the house where the deceased lived, and made an unsuccessful effort to see her, after which he loitered in front of the house until about 1 o’clock in the morning. The homicide was committed at or near the southwest corner of Fourth street and Massachusetts avenue, between the hours of 8 and 9 o’clock in the evening. The accused approached the deceased, and said to her, “Kate, it is my time and my chance now.” He then seized her with one hand, and cut her throat with a razor. Immediately afterwards, when asked by a bystander, who had approached, why he had done such an act, his reply was that the woman was his wife, and that she had done him dirty, and that he ought to have done this years before, adding an opprobrious epithet. To another bystander he said, “Go down to her house and tell her people.” And to another person, as he was being taken to the station house, he said: “It is done now, and there is no use talking about it; you see that I am not worried.” There was evidence tending to prove that prior to the homicide the accused wore no beard; that he wore no beard when a photograph was taken of him at the police station, but that, during the trial, he wore a full beard. There was also given in evidence to the jury the contents of a letter purporting to have been written by the accused to the deceased, about a month prior to the homicide. The letter was written from Beltsville, Maryland, and purported to be in answer to one written by the deceased to her son, Willie, who was with his father at Beltsville. In that letter, purporting to have been written by the accused, the writer said:</p> <p>I will be home about the 4th of August, and if you do not see me I will fix you in a way you do not like. I do not intend those damned Ivey girls to make a fool of me. Tou will see where you land. Tours, Gus. S.</p> <p>The original of this letter was shown to have been lost, and there was considerable contest over the effort on the part of the government to prove the handwriting of the accused, in order to establish the genuineness of the letter. Proof, however, was admitted of the handwriting as being that of the accused, and the contents of the letter were allowed to be given in evidence.</p> <p>At the conclusion of the evidence for the prosecution in chief, the accused offered evidence to support his defense. As we have said, there was no denial of the fact of the commission of the homicide by the accused. His defense was that of insanity at the time of the commission of the act. He offered and gave evidence tending to show that he was by nature easily excitable to passion; that when under the influence of passion he was liable to become incapable of controlling himself; would lose all power to control himself; was liable to do anything, and was a practical maniac; also, that he was addicted to drink, and when under the influence of excessive drink was similarly liable to lose possession of bis senses, and to act in a manner indicating want of control of bis will and other faculties; that at the time of the homicide under inquiry, he was greatly intoxicated; and further, that at the time of the said homicide he was of unsound mind and insane.</p> <p>By a number of witnesses, according to the statement in the bill of exceptions, the accused gave evidence tending to show that said witnesses had known and associated with the accused for various longer and shorter periods of time; in some instances beginning with his boyhood, and continuing down to the time of the trial; that, in general, his conduct was strange and unusual, and in his boyhood he was called by his companions “Looney "Shaffer;” and, in his boyhood, and afterwards, was called by some who knew him, “Qrazy Gus;” that some of the witnesses had worked and lived in the same house with him before and up to within a short time of the homicide, and that said witnesses observed a number of actions which they characterized as “queer,” “peculiar,” “eccentric,” some of said actions consisting, as they thought, of crazy talk; that he would excitedly wave his arms, seemed to have a grievance for which no foundation appeared ; would burst into tears, look in a blank way; would get so rattled that he did not know what he was doing; would repeat orders and give conflicting orders to those employed under him; did odd and unnecessary and inexplicable things in the conduct of his business; had a peculiar look or stare; was at times morose and sullen, and at other times exceedingly violent; talked very disconnectedly at times; had hallucinations as to people following him; and had such hallucinations the night before the homicide; he became wild when he talked about the deceased; and did other acts indicating a peculiar and weak nature; all which several matters and things were narrated to the jury; and that, from the observation and knowledge of the same, the said witnesses testified that they had formed and entertained an opinion that the accused was of unsound mind, and irresponsible for his acts. But some of the witnesses who testified for the accused, testified that they did not consider, and never had considered, the accused insane.</p> <p>The prosecution, in rebuttal, offered and gave in evidence by witnesses who testified, that they had known the accused for long periods, and that they never had considered him other than of sound mind; that for six or seven years he was foreman in charge of the delivery station of the Blue Line fast freight, and had charge of the delivery of about 15 carloads of freight per day; and had authority to employ and discharge men, and that there were from 15 to 25 men under his charge. Other witnesses testified that for about two years preceding the homicide the accused was employed in the Government Printing Office, in a position requiring a considerable degree of intelligence, and tbat he did his work intelligently, faithfully, and well.</p>

<p>Hearing on an appeal by tbe petitioners, collectors of the estate of a decedent, from an order of the Supreme Court of the District of Columbia, sitting as a court of probate, dismissing, for want of jurisdiction, a petition for the discovery of alleged concealed assets of such estate.</p> <p>The Court in the opinion stated the case as follows:</p> <p>On March 25, 1904, two creditors of Albert Daggett, deceased, filed separate petitions in the probate court, alleging his death intestate on December 19, 1903, in the State of Maine, and that he was a resident of the District of Columbia and left personal property therein. They set out their indebtedness, and alleged that the next of kin of intestate had taken possession of a large part of said property and were disposing of it for their own use. They prayed for the grant of letters of administration, and, pending the same, for the appointment of collectors. Rule to show cause was served on Alexander S. Daggett, son of intestate. The widow, Julia E. Daggett, was not to be found.</p> <p>On March 31, 1904, an order was entered appointing Mason N. Richardson and William M. Offley collectors. Said collectors then filed their petition in said court, alleging the death of said intestate and their appointment as aforesaid. They further alleged that they believed that intestate, at the time of his death, owned a large amount of personal property, then in the District of Columbia, consisting of pictures, vases, art curios, ceramics, and furniture. That the said widow and next of kin, or persons acting for them, took possession of all of said property “in an effort and for the purpose of concealing the same, and preventing the same from being administered as assets of the estate of said decedent, and for the purpose of defrauding creditors.”</p> <p>That they had offered a large part of said property for sale at the auction rooms of C. Gr. Sloan, in the city of Washington, and that part had been sold and the proceeds paid over to them. That said O. Gr. Sloan has some of it in his possession, and is about to offer the same for sale under the instructions of the said next of kin. That they are advised and so believing aver that the said widow and son, Alexander S. Daggett, have consigned other of said property to said Sloan for sale as aforesaid in the name of Julia Tremere, the mother of the said widow. That said Alexander S. Daggett is also offering for sale at a certain store in said city a large amount of said property, alleging the same to be the property of said Julia Tremere, also for the purpose of concealing the fact that it constitutes assets of said estate. That, if said property is permitted to remain in the possession of said parties, great loss will result to the creditors of said estate, because said parties intend to use the proceeds for their personal benefit. They prayed that the parties be required to answer the several allegations of the petition under oath, and to disclose the articles of property by them taken possession of, etc.; and that an order be passed referring the same to the auditor of the court for the purpose of taking testimony, and reporting his findings as to the actual ownership of said property. An order was entered upon this petition requiring the parties to make disclosure as prayed.</p> <p>Albert S. Daggett answered the petition under oath, denying that the intestate had any personal property in the District of Columbia at the time of his death. He alleged, also, that all of the personal estate owned by intestate was situated in the State of Maine, where he lived at the time of his death, and had there been duly administered upon. That no property belonging to intestate had been taken possession of by himself or Julia E. Daggett, as alleged. That no one of them had sold, or offered for sale, any property of the intestate. That all of the property sold, or offered for sale, belonged to Julia E. Daggett, II. Bruce Wood, or Julia Tremere. A list is then given of the articles consigned for sale to said Sloan, and of each article held by respondent for sale in the store aforesaid. It is finally alleged that each and every article described is the property of the persons aforesaid, and held by and for them as such. The answer of Sloan disclosed the articles that had been sent to him for sale and stated the disposition of the proceeds of such as had been sold by him. His list corresponded with that of Albert S. Daggett’s answer aforesaid.</p> <p>The court thereupon refused to refer the petition and answers io the auditor, but dismissed it for want of jurisdiction. From this order the collectors have appealed.</p> <p>The respondents’ answer made a full disclosure of the matters inquired of in the petition, denied the ownership by the intestate of the property described, and set up an adverse claim thereto on behalf of certain other persons for whom he held the possession.</p> <p>1. Full enforcement of the statute (Sec. 122, D. O. Code) would not be unconstitutional, as depriving persons of due process of law and trial by jury, and would not result in imprisonment for debt as trial by jury in the probate court is provided for by the Code, and the imprisonment possible would be, not for debt, but for misappropriation of others effects and refusal to surrender the same. The jury provided would be a constitutional jury, — that is, a jury of twelve men presided over by a judge of a competent court of record with all necessary powers as to bills of exception and appeals. Capital Trac. B. Co. v. Hof, 171 H. S. 1.</p> <p>2. The probate court may assume jurisdiction where the allegation (denied by the answer) is concealment of assets by means of a colorable assertion of title, and where on the face of the record it is apparent that the title claimed to part of the effects is void for want of right in an insolvent to make gifts to his wife before paying his debts. The mere assertion of a claim of title to property does not oust the probate court of jurisdiction to try an allegation specifically made of concealment of assets. Wade v. Pritchard, 69 111. 269. See also Martin y. Martin, 170 111. 18; Re Slingerland, 36 Hun, 575; Re Ourrie, 25 Hun, 321; Martin v. Clapp, 99 Mass. 470; Bright v. Releer, 68 N. W. 326; Levy v. Sup. Court, 105 Oal. 600; Gordon v. Bans, 97 Mo. 587; Hoehn v. Struttman, 71 Mo. App. 399; Cain y. Warford, 3 Md. 454; Waring y. Rdmonds, 11 Md. 425; Taylor v. Brusup, 27 Md. 219; Cannon y. Cook, 32 Md. 482; Abbott y. Golibart, 39 Md. 55; Hignutt y. Cranor, 62 Md. 217; Gibson y. Cook, 256 — 259; Daugherty y. Daugherty, 82 Md. 231.</p>

Hearing on an appeal by tbe defendants from an order of tbe Supreme Court of tbe District of Columbia, overruling a demurrer to a bill of review, vacating the decree sought to be reviewed, with leave to the defendants to the original bill to plead, answer, or demur thereto within a prescribed time.

The Court in the opinion stated the case as follows: The plaintiff in error, John Barnes, was convicted in the police court of the violation, of a regulation established by the commissioners of the District, and has been granted a writ of error.

<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 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 the Commissioner of Patents in an interference case. The facts are sufficiently stated in the opinion.

<p>Appeal Bonds; Mandamus; Becorder of Deeds; Certificates of Incorporation; Corporate Trustees.</p> <p>1. No bond for costs is necessary where a supersedeas bond has been given.</p> <p>2. While it may be convenient and proper to entitle a petition for mandamus in the name of the United States on the relation of the petitioner, it is not ground for a dismissal of the petition that it has not been so entitled. If necessary such a formality may be supplied by amendment.</p> <p>3. While 'the recorder of deeds for this District is a ministerial officer without jurisdiction to pass upon the validity of an instrument of writing presented to him for record, he is not wholly without discretion to determine whether a given instrument shall be admitted to record. He has the right to exercise discretion in the premises, but not judicial discretion; and whether his action in a given case falls within the scope of authority vested in him is to be determined by the court according to the principles of law applicable to the facts.</p> <p>4. While the writ of mandamus may now be regarded as a writ of right, there is a sound discretion in the court, even though the relator may technically be entitled to it, to refuse to grant it when its issuance would not promote the substantial ends of justice, or when it would prove unavailing or without beneficial results to the relator.</p> <p>5. Even though a paper presented to the recorder of deeds for record appears on its face to be one entitled to be recorded, and the recorder of deeds has exceeded his authority in refusing to record it, the court will not, by mandamus, compel him to record it, if it appears upon a consideration of the contents of the paper th&t it is invalid under the law.</p> <p>6. Under subchap. 4, D. G. Code, providing for the organization of corporations in this District, a company cannot be incorporated to do all the classes of business for which corporations may be formed under that subchapter, but can be incorporated only to engage in one such business or enterprise.</p> <p>7. The provision of sec. 633, D. C. Code, providing that a company incorporated for one class of business may, upon compliance with certain conditions, extend its business to any other business au■thorized by the general incorporation law, means the extension of business by the taking in of something cognate to the business to engage in which the company was originally incorporated.</p> <p>8. A certificate of incorporation under the general incorporation law of this District, of a company, one object of which is stated to be “to perform contracts for maintaining and operating railways” is in antagonism to that provision of the law which excludes the operation of railroads from the category of classes of business for which incorporation may be granted, although the certificate also says, “except that the company shall not operate any railroad, engage in the business of a railroad, or do anything in the premises prohibited to incorporations of this character.” There is no distinction between a “railroad” and a “railway;” and the previous clause of the certificate, and the exception, are inconsistent with each other; and such a certificate is not entitled to be recorded.</p> <p>9. While, after a certificate of incorporation has been filed and the company has gone into operation, the inclusion in the certificate of powers not permitted may be regarded as surplusage, the inclusion of such powers in a certificate not yet filed will be held to be sufficient to justify the recording officer in refusing to accept it for record.</p> <p>10. Under sec. 608, D. C. Code, part of the general incorporation law of tliis District, all of the trustees of a proposed corporation must be stockholders as well for the first year as for subsequent years; and the incorporators must be regarded as stockholders of the company in the first instance, and as the only stockholders, and the trustees are to be selected from their number; and a certificate contravenes the law which names five trustees to manage the affairs of the corporation, two of whom fail to sign the certificate of incorporation, and are apparently strangers to the proposed organization.</p>

<p>Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia upon the verdict of a jury directed by the court in an action to recover damages for the death of the plaintiff’s intestate.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This is a suit at common law instituted in the supreme court of the District of Columbia, under the statute to recover compensation for death resulting from alleged negligence of the defendants.</p> <p>The appellee, the Metropolitan Railroad Company, is, or at the time of the accident here complained of, which was July 28, 1901, was a company owning and operating an electric railroad in the city of Washington, having its western terminus at the intersection of Prospect avenue and 36th street northwest, where it connected with the line of a company then known as the Washington & Great Falls Electric Railway Company, and now known as the Washington Railway & Electric Company, which line ran westward from its connection with the Metropolitan railroad to or towards the Great Falls of the Potomac river in Maryland. The cars on the Metropolitan railroad were and are propelled by an underground system of electricity; those on the Washington & Great Falls railway were and yet are propelled by what is known as the trolley or overhead electric system. Cars were run from one line to the other under an agreement believed to have been authorized or sanctioned by law; and, when cars were so transferred, the change was effected by an arrangement of machinery in pits, designated as “plow pits,” constructed under the railroad tracks, which, however, required the services of a pitman, as he was called, for its adjustment to the cars as they passed over it.</p> <p>The plow pit for the transfer of cars from the underground system of the Metropolitan railroad to the overhead system of the Great Falls railway was constructed in Prospect avenue a little distance.west of the junction of the two roads, and therefore wholly on the line of the Great'Falls railway; and it extended underground under both tracks and the space between the tracks, so that the pitman descending into it from the street could pass from one side to the other and adjust the machinery under a car on either track to change from one system to the other.</p> <p>On the afternoon of July 28, 1901, James F. Looney was the pitman at this point. A car belonging to the Metropolitan ltailroad Company came down 36th street on the Metropolitan railroad, rounded the curve at the junction of 36th street and Prospect avenue, ran upon the tracks of the Great Falls railway and stood over the plow-pit that has been mentioned, stopping there for the purpose of having the machinery adjusted to transfer it to the overhead system and to enable it to run west to Cabin John Bridge on tíre Great Falls road. As the car was rounding the curve at the junction, Looney descended into the plow-pit through the trapdoor in the south or east-bound track. Soon after the car stopped over the pit a groan was heard in the pit; the car was moved westward from over it on a descending grade over which it was passed for some little distance by the mere force of gravity, and the dead body of Looney was taken from the pit. He had been instantly killed by contact with the electric wires.</p> <p>Thus far there is no dispute between the parties. The controversy arises over the manner in which the deceased received the electric shock which killed him, and whether either of the defendant companies, or both of them, are responsible for having caused his death through the negligence of their employees. The question is whether there was such negligence, or whether the death was the result of mere accident or mistake on the part of Looney himself, and, if there was negligence, whether the doctrine of the law in regard to fellow servants does not apply, inasmuch as it is claimed on behalf of the appellees that the pitman and the conductor of the car, who is chargeable with the negligence, if any there was, were both at the time of the accident employees of the Great Falls company. In this connection the contention on behalf of the appellant is that the deceased at the time was an employee of the Great Falls company, and the conductor and motorman of the car were employees of the Metropolitan Railroad Company, and that therefore the doctrine in regard to fellow servants does not apply.</p> <p>At the trial the only testimony taken was on behalf of the plaintiff, and there are no bills of exception based upon the exclusion or admission of any testimony. At its conclusion the defendants moved the court to direct a verdict in their favor, which was accordingly done. It does not appear in the record upon what ground the motion was based, or upon what ground it was allowed; but counsel for the appellees state in their brief, and it seems to be admitted in the brief for the appellant, that two grounds were assigned for the motion, namely: (1) That the deceased and the conductor charged with the negligence were fellow servants of the same company, and therefore that the plaintiff could not recover; and (2) that the testimony failed to establish any negligence on the part of the conductor; and that the court below made no ruling on the second ground, but sustained the motion on the first ground.</p> <p>Verdict and judgment were rendered for the defendants, from which the plaintiff has appealed.</p>

Hearing on an appeal by tbe defendant from a judgment of the Supreme Court of the District of Columbia in an action on a bond. The Court in the opinion stated the case as follows: This case is before the court on appeal from, a final' judgment of the court below in a suit at law. The appellee, Charles Gans, filed a declaration in covenant against the appellant, Samuel Bieber, for the recovery «of $2,-000, together with interest thereon from April 2, 1903, and costs of suit.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia upon a verdict directed by the court iff an action to recover damages for personal injuries.

<p>Hearing on an appeal by tbe plaintiffs from a judgment of tbe Supreme Court of tbe District of Columbia upon a verdict directed by tbe court in an action to recover damages for personal injuries.</p> <p>Tbe Court in tbe opinion stated tbe case as follows:</p> <p>Tbe appellants, Frank A. Howell and bis wife, Maggie A. Howell, brought tbis action against Ferdinand T. Schneider and Jane Schneider, individually, and as executors of tbe estate of Louis H. Schneider, deceased, and against David Moore, and William A. Hill, partners, under the name of Moore & Hill, to recover damages for serious injuries sustained by said Maggie A. Howell through tbe fall of a water box or flush tank in the closet of a bouse occupied by tbe plaintiffs as lessees of tbe defendants.</p> <p>Tbe declaration alleged tbe lease of tbe bouse from tbe defendants, Ferdinand T. and Jane Schneider, acting through their agents, Moore & Hill, for a term beginning July 1, 1900; that defendants agreed with plaintiffs to have the house put in thorough repair and in safe and habitable condition before the latter should remove to it, and it thereby became their duty to use reasonable care and skill in putting the same in safe and habitable condition, and to make all necessary inspections to ascertain what work and skill would be necessary to accomplish that end; that part of the rent was paid in advance, and plaintiffs, believing, from the assurances of defendants, that the house had been properly repaired and put in safe condition, took possession of the same and removed thereto with their family on July 9, 1900; that on July 18, 1900, the said Maggie A. Howell, being then a healthy, strong woman of thirty-eight years of age, was in the bath room, when, without fault or negligence on her part, the water box or flush tank, by reason of the negligent and unskilful manner in which it had been fastened and supported, fell upon her and injured her seriously.</p> <p>The death of Jane Schneider pending the suit was suggested.</p> <p>The first witness for the plaintiffs, Maggie A. Howell, testified as follows:</p> <p>That she is the wife of Frank A. Howell, and that in June, 1900, she saw the sign, “For rent, by Moore & Hill,” in the window of the house 806 Eleventh street northwest, and that between the 10th and 18th of the same month, as agent for her husband, she called on the firm and had a talk with Mr. Moore in regard to the house, and was informed that the present tenants would vacate on the 18th, and that on that date she went through the house with her husband, while the Milhollands were moving out; and that on the same day, after they had gone through the house, she again went, as agent for her husband, to the office of Moore & Hill, and told Mr. Hill they would rent the house if it was put in thorough repair, and that he said he would consult the owner and let her know; that she went to Moore & Hill’s office again on the 19th, and was informed by Mr. Moore that the house had been rented to another party; that on the 20th she again called at their office, and Mr. Moore informed her that the party who had rented the house had decided not to take it; that Mr. Moore then gave her the key, and she went through the house alone, and observed that it needed painting and papering and was in a very bad condition, which Mr. Moore admitted; that she returned the key to Mr. Moore the same day, and told him she would take the house if it was put in thorough repair, and that he told her the house would be put in thorough repair, and asked her to make a deposit of $10, which she did; that nothing was said at this interview by Mr. Moore as to having seen the owner, — he simply said that the house would be put in thorough repair; that no lease was signed until after they moved into the house; that she did not want the house until the 5th of July, as her time was not up until then at the house they were then occupying, but Mr. Moore said the rent must commence on the 1st of July; that she had another interview with Mr. Moore just prior to the 1st of July, and he told her that the house would not be ready for her on the 1st because the repairs had not been finished; that she told him she had made all arrangements to move, and would be very much inconvenienced unless she could get the house on the 1st of the month, but he said she could not have it; that she then asked to have one room on the 1st for a tenant who was to move in with them, and he said he would ask the owner and let her know; that Mr. Schneider was present at this interview, and was standing on the outside of the railing very close to her, Mr. Moore standing on the inside of the railing; that Mr. Schneider was not talking to anyone at the time, and took no part in the conversation between herself and Mr. Moore; that she did not know him at the time; that he was present when the statement was made by Mr. Moore that the repairs were not finished; that she did not receive permission to move this tenant into the room or to occupy any portion of the house until the repairs were completed; that on Friday, July 6th, she saw Mr. Moore, and he told her the repairs were now finished, and they could move in any time, and she tóld him they would move in Monday, and he said very well; that they did move in on Monday, the 9th; that nobody at all was working there when they moved in, and the repairs were apparently completed; that no work at all was done on the house after they moved in, inside or outside, except a small place in the basement repaired by a carpenter; that on July 18, in the forenoon, while on her knees wiping up the bath room floor, the flush tank fell and struck her on the back; that the water was pouring out of the flush tank, and she thought the house would be flooded, and she managed to get down to the basement, where two men were fixing the range, holloing while she was going down stairs to turn off the water; that she fainted when she got to the basement, and was afterwards placed on a chair by the two men and carried upstairs; that she again lost consciousness, and when she came to, Drs. Heinicke and Maehinek were working over her; that she was confined to her room and the hall for three months, and was constantly on her bed and couch during this time; that her entire left side was paralyzed, her arm was dislocated, and her spine injured, and she was helpless during that time, that she was confined to the house for twenty-two months and during this time was in constant pain, night and day; that before the accident her health was perfect, but she has never been free from nervousness or pain since, and has been under the care of physicians since; that before the accident she was in the millinery business and also attended to her household duties, but has been entirely unable to work ever since the accident; that the paralytic condition has not disappeared; that her eyesight before the accident was perfect, but now is very much impaired, and she is compelled to wear glasses; that her left arm has not been any use to her since the accident; that it has a numb feeling all the time, and she cannot use it to work or to do anything; that the two Merricks, two ladies, and a Mr. Smith moved into the house with them, and occupied rooms in the house up to the time of the accident, all using the bath room; that she never noticed any defective condition of the flush tank prior to the accident; that the bath room is very small and very dark, having but one window, opening on an areaway between that and the adjoining house; that the wall of the next house is close to the window, and extends further back than their house, making the bath room very dark; that the areaway is closed in front and no light can get in from the front; that the window of the bath room is directly opposite the door, and the flush tank is in a dark corner of the room, near to, but above, the window; that the bath room was painted a dark brown, making it darker than it otherwise would have been; that the flush tank was also painted brown, but of a shade lighter than the walls; that she had used the bath room frequently prior to the accident, but had never observed anything wrong; that the walls and the window casings and sills in the bath room had been painted, but she did not know whether the flush tank had been j>ainted or not; that one day during the week they moved into the house Mr. Schneider came to the house and said he wanted to examine the repairs, and that he went all through the house; that he went to the bath-room door and looked in.</p> <p>On cross-examination the witness gave evidence tending to prove that in the first interview with Moore & Hill, with reference to repairs, she did not specify certain repairs which she desired made; that on the 20th of June she called and requested Mr. Moore to have the hall papered, the back porch repaired, and the house painted and cleaned out; that they still live in the house where the accident occurred; that Mr. Moore was the first person she spoke to about the repairs, and he told her he would consult the owner and see if the repairs would be made; that she did not ask that the kitchen be painted, or that the front doorstep be fixed, or that two lights of glass be put in, or that the papering in the dining room be patched or repaired; that after they moved in she asked to have some new sash cords put in the parlor window, and asked that some spigots and gas jets be repaired; that she never asked to have four panes of glass put in the kitchen windows, but these were all right when they moved in; that she did not ask to have a pane of glass put in the front of the cellar door, or a pane put in the third-floor-front room, or to have a brace put under the front steps; that after they moved in she reported to Moore & Hill that the kitchen range would not draw; that she was at the house several times between the 18th of June and the time they moved in, and saw papering and painting of woodwork being done, but saw no carpenters there and saw no work being done on the outside of the house; that she told Mr. Moore the house was very much in need of papering and painting, and he asked her what rooms she wanted papered, and she told him she would like to have the parlors papered and the halls and some of the rooms upstairs and the dining room downstairs; that he told her the owner would not paper the hall and the parlors, too, — that he would paper the parlors, but not the hall; and she said, “Well, the hall is in a very bad condition, and if he won’t do both I would prefer having the hall papered;” that the house generally did not need papering, — that there were several rooms in good condition; that she cannot recall any other specific thing she asked to have done other than those mentioned, — that she asked to have the house put in thorough repair; that five persons besides herself and husband and their two children moved into the house with them and remained until after the accident; that there was no other bath room or closet in the house, but there was .a closet in the yard for the use of the servant; that everything was clean and in very nice condition when they moved in; that all the persons in the house used this bath room; that all the waste water, etc., from the rooms was poured into the closet; that there were nine persons, including two children aged respectively thirteen and seventeen, in the house who used the closet; that she had used the bath room the day of the accident; that on the morning of the day they moved she called at the office of Moore and Hill, and asked for the key, and was told the paper hanger was at the house and had the key; that the paper hanger had the house open, and she got the key from him; that he told her he would be through in a short while; that she never had any conversation at all with Mr. Schneider in regard to the house; that Mr. Schneider took no part in the conversation between herself and Mr. Moore the morning she inquired about one of the rooms; that he couldn’t help hearing the conversation, — he was close enough to hear it; that the conversation that morning was confined to a request to let one tenant move in; that Mr. Schneider called alone one day during the week they moved in, and said he wanted to go through the house to see the repairs; that he did not say he was the owner; that she recognized him as being the same gentleman she had seen in Moore & Hill’s office, and thought he was Mr. Hill; that she did not go through the house with him; that she saw him at the bafh-room door; that he went into another room, and spoke of some- boards that had been put up to form a clothes closet, and was very much displeased about that; that she had no conversation with him, and did not ask him to have anything done or make any complaint to him as to the condition of the house; that she observed nothing wrong with the house at any time before the accident; that she cannot say whether the things asked to be done after they moved in were requested before or after Mr. Schneider’s visit; that his attention was not at any time called to the condition of the flush tank, and that so far as she knew it was all right up to the time of the accident; that it seemed all right to her; that it was worked by pulling a chain.</p> <p>On redirect examination the witness gave evidence tending to prove that in the conversation with Mr. Moore in regard to repairs she did not undertake to specify all the things that would have to be done to put the house in thorough repair; that he said it would be put in thorough repair; that she called his attention to the painting and papering.</p> <p>Frank A. Howell, a witness next called on behalf of the plaintiff, gave evidence tending to prove that he is the husband of the female plaintiff, and is employed in the department of justice; that they saw the sign, “For rent, by Moore & Hill,” in the house No. 806 Eleventh street northwest, and that some time in June, 1900, he and his wife made an examination of the house, and found that the paper was soiled and dirty, the porch was in a dilapidated condition, all the wood work needed painting, and the house was in bad repair generally; that after examining the house he authorized his wife to see Moore & Hill and rent the house if they would put it in thorough repair; that he assisted in moving in in the afternoon of July 9, 1900, and that no repair work was then going on in the house, and there were no workmen at all there; that everything appeared to be in good repair when they moved in, and that he saw nothing wrong; that the two Herricks, .C. O. Smith, Hiss HcAuliffe, and Hiss Hurphy moved into the house with them; that there is no other bath room or closet in the house but the one on the second floor, but there is a closet in the yard for the use of the servant; that the walls of the bath room are of plaster and had been painted a very dark brown, and the woodwork of the bath room had also been painted, but did not think the flush tank had been; that the flush tank is a cherry color, much lighter than the color of the walls; that the bath room is very small and dark, containing one window situated opposite the door; that this window opens upon an area way between their house and the adjoining one; that the wall of the adjoining house is of red brick, and is 5 or G feet from their wall; that the adjoining house runs up one story higher than theirs, and extends 6 or 8 feet farther back; that the area way upon which the window faces is closed in the front by their house; that the flush tank is in one corner of the room above the highest point of the window; that he got home just before 12 o’clock, July 18, 1900, and found Hrs. Howell unconscious and Drs. Hachinek and Heinecke working over her; that after she had become quiet he examined the bath room and then locked it and reported the matter to the plumber’s office; that the flush tank was detached from the wall but was still attached to a large lead pipe, which was bent over, and the tank was suspended by this pipe about 6 to 10 inches from the floor; that this pipe was still attached to the wall just below the wainscoting ; that the flush tank was fastened to three boards against the wall, — a long upright board and two wings at the top; that the center board or flush board ran down flush with the wall, and was let into the wainscoting below, and at the top on each side of this flush board are two other boards, forming a sort of wings, making it wide enough to hold the flush tank, and on these three, boards the flush tank was fastened; that across the top of the flush tank was nailed a narrow strip which was also nailed to the boards to hold them together; that these boards were all loose from the wall, and fell with the flush tank to the floor, and were still fastened to the tank; that the flush tank was about 2 or 2% feet long, about 12 or 15 inches high, and extended at right angles from the wall about 1% feet; that in the wall behind where the flush board had been, and about midway between the flush tank and wainscoting, he discovered a wooden plug about % of an inch in circumference, driven in between the bricks of the wall; that there had been driven through the board into this plug three smooth wire nails, about 3^/2 inches long, splitting the plug all to pieces; under the right wing board, still in the wall, was another wooden plug about % of an inch in circumference driven in between the bricks, into which wire nails of the same sizé had been driven, and which was all split; that under the left wing board he found a hole, and afterwards found a paper plug under the bath tub, which he fitted into this hole; that he picked this paper plug up and fitted it into the wall, and then placed the board against the wall just as it was before it fell; that this paper plug was even with the wall, and was only partly behind the wing board; that part of it was outside and had been painted over, and part was covered by the ■wing board; that there was no wooden plug at all in this space, and this paper plug was the only fastening to that side of the tank; that a nail had been driven into the paper plug, which had pulled out and was still in the wing board; that this was all he found to hold the box to the wall; that there were no hooks to hold the tank to the wall and no brackets under it; that the boards were about 1 inch thick; that the bath room remained in the same condition two or three days; that he received two or three postal cards from Moore & Hill, -which he had searched for, but cannot find; that the first contained a request that Mrs. Howell should call to see them with reference to 806 Eleventh ■street; that the next was a notice that we would not be able to get the house by the 1st of July, as the repairs would not be completed in that time; that the next was that the owner would not allow us to occupy any part of the premises until they were thoroughly repaired and inspected; that these cards were all signed by Moore & Hill, and were all received before they moved into the house; that, Mrs. Howell’s health was perfect before tbe accident,-but she has been able to do very little work since; that she was confined to her bed two or three months after tbe accident and did not go out of tbe house for a long time, — over a year; that she never wore glasses before tbe accident, but has worn them since; that she never used to suffer from nervousness, but is very nervous now.</p> <p>On cross-examination the witness gave evidence tending to prove that there were three boards connected with the flush tank, — one center piece and two side pieces; that be thinks tbe center piece went to tbe top of tbe tank, and that tbe whole thing was together when he saw it; that there was no board across tbe bottom of tbe tank for it to rest on, and that nothing supported tbe tank but its connection with tbe center board; that be never saw tbe paper plug before tbe accident; that there were no cleats over tbe top of the back part of the tank board, and fastened to tbe wall; that if there were any be did not see them; that he examined very carefully, and the side board and tank board and tank were all together when he first saw them; that it never occurred to him before tbe accident to examine to sen bow tbe tank was supported, because in the last bouse be had lived in he often bad to fix tbe valve, and would pull himself up by tbe edge of tbe tank, and be naturally supposed they were all made alike; that he never pulled himself up by the edge of this tank before tbe accident; that opposite tbe closet is a stationary washstand in the corner, and along this wall there was a looking glass and gas jet, and neither of these was broken; that tbe bath tub, closet, and tank could be seen when one entered the room; that witness had used the bath room constantly, and noticed nothing wrong about it; that everybody in the bouse used it; that he bad not noticed anything wrong with the flush tank; that both pipes were still attached to tbe centerboard when he first saw it, and that there were nails driven through this board about tbe middle; that he thinks the small pipe only was connected with the centerboard by little cleats, and does not think tbe larger pipe was connected with the centerboard; that he went to the bouse with bis wife to look at it before it was repaired, and that he went there the morning before they moved and looked through it, and apparently everything was satisfactory ; that after they moved in he discovered that he could not raise the parlor window, and immediately sent for a carpenter to raise it; that the back porch had been primed before they moved in, and a few days after they moved in a painter came and painted it; thát he made no request about painting the porch; that a day or two after they moved in he noticed there was a brace off the front iron steps, which he reported two or three times; that he made no other request for repairs that he knows of; that when anything occurred in the house that needed repairs, he reported it to Moore & Hill, and they had it done; that on Sunday after they moved in they discovered that the kitchen range would not draw, and he reported it to Moore & Hill and they had it fixed; that he thinks they asked Mr. Moore to put a glass door in the dining room, but they did not do it; that he signed the lease for 806 Eleventh street about a week after they moved in; that as to arrangement of walls, area in rear, and darkness of bath room, the house when they moved in it was constructed the same as when he first inspected it; that when he first looked at the house it needed thorough repair; that the back porch was in a dilapidated condition; that the paint was all dirty and dingy, and the woodwork and the halls were all dirty; that the hall, as well as some of the rooms, was very much soiled, that others were in good repair, but all needed painting; that there was a hole in the floor in the basement hall; that the back porch was repaired and the papering and painting done, and the floor in the basement repaired; that he doesn’t know of any other defect that was noticed that was not repaired; that when they moved in everything was satisfactory to all appearances; that when he examined the house before moving in he looked at the tub and saw that it was a nice-looking one, and the seat and box looked new; that he had no objection to it, — had nothing to say about it at all.</p> <p>On redirect examination the witness gave evidence tending to prove that the kitchen range was not in process of repair when they moved in; that after they moved in they discovered it would not draw, and reported it, and it was attended to.</p> <p>Charles C. Wood testified that he was employed by Jesse Mann to work in painting the house from June 28 to July 6, 1900; that he returned on July 18 to paint the back porch and reglaze the front sash; that he used the closet on the 28th or 29th of June, and in flushing the tank a few drops of water fell on his head; that he examined the tank and found that it projected from the wall at the top from % inch to 1 inch, but the bottom was flush with the wall; that the bath room is small, has but one window, and is poorly lighted; that he called the attention of Miles and Winkleman to the tank, who were also in the employ of Mann, the contracting painter; that they had nothing to do but the painting; that witness varnished the window of the bath room two or three days after; that he did not mention the dangerous condition to anyone else; that Mr. Schneider came to the house occasionally while the work was going on; that looking right at the flush tank one could not detect the defect, but sighting with the wall from the bath tub one could see the plugs distinctly as they had drawn out from the wall; that the plugs were partially drawn; that in thé holes in which the plugs had been driven the plaster had broken and enlarged the holes, which caused the plugs to work loose. Charles H. Winkleman corroborated Wood as to the condition, and said that he had been in the bath room before, but did not notice the condition of the tank until his attention had been called to it.</p> <p>George H. Miles, another painter, agreed with Wood as to the condition, and said that, if it had not been called to his attention, he would not have seen it, but that he could see it distinctly after his attention had been called;''that the bath room was a dark one. John H. Milholland testified that he had occupied the house from the spring of 1898 to the 18th of June, 1900; that there was first an old-fashioned box closet with a knob to raise; that he made complaint of the closet and the owner put in a new one and a new bath tub in the fall of 1898; that the room was then painted; that he made complaint that the closet did not flush properly, and Mr. Schneider said he would lose his tenant before he would go to more expense; that he did not leave because of this refusal; that he did not do anything with the tank, and did not insert the paper plug.</p> <p>Bichard A. O’Brien, a witness for plaintiff, an assistant inspector of plumbing, explained the most approved mode of supporting tanks by brackets or hooks. He explained the dangers of plug construction, although it is in use to a great extent, and is safe if carefully done, but there is no way to tell whether it has been carefully done. He said that if two thirds of the plugs in this instance had been split it would indicate that the workmen had been careless in fastening the board to the wall, and if all the nails had pulled out of the plugs it would indicate that proper nails had not been used.</p> <p>Charles H. Ball, a former inspector of plumbing for the District of Columbia, said that he examined the water box soon after the accident; that it had fallen and rested on the closet fixture; that the board supports were detached from the wall; that the bent flush pipe was of lead; that the tank held 3 or 4 gallons of water, and, with the water, would weigh 250 pounds; that the board to which it had been attached on the wall had been secured by two or three nails, the hold of which in the wall would be about % of an inch; that the tank was intended to clasp by a hook over the top of this board, and would hold as long as the board remained fastened; that at each end of the board a plug had been driven in a joint between bricks in the wall, about 2 inches wide and % inch thick; that one plug was badly bruised by careless hammering, so that it did not hold the nails well, and the other was split; that the nails driven into these plugs were in groups, — one group of three, one of two •each, and two single nails; that the contact with the plugs was not secure, some of them being near the edges; that in his opinion the work was unskilful and showed a lack of proper care; that it was impossible to say what would have been shown by a proper inspection before the tank fell, but usually some evidence showing that it was parting from the wall would be noticeable by careful inspection; that if the upper part of the board had separated 1 or 2 inches from the wall it would have indicated a suspicious condition; that if workmanship were originally sound you might assume that it would continue in a safe position.</p> <p>On cross-examination, he said that a very usual way of fastening a tank was to drive plugs in the wall and nail the boards or cistern or brackets thereto; that it is customary to drive at least two or three good nails into such a plug; that the heads of the nails in this instance were not visible; that they had been “puttied” over so that without a careful search it would not have been possible to detect where the nails were before the tank fell; that he does not believe that after the work had been completed the fact that the nails were not properly secured in the plugs could have been noted in an ordinary inspection; that the work of securing the boards is practically concealed; that there were no brackets under the tank, but these are frequently omitted when the tank is fastened to a board as this one was.</p> <p>Frank G. Iiowell, a witness next called on behalf of the plaintiff, gave evidence tending to prove that he is a son of the plaintiffs and that he assisted them in moving in July 9, 1900, and that there was no work then going on in the house; that three or four days after they moved in Mr. Ferdinand Schneider came to the house and said he wanted to look at the repairs; that the witness showed him through, and that he went all through the house except the basement, — into all the rooms; that he went to the bath-room door and looked in for a minute or so; that he seemed to make some objection to a temporary clothes closet Mr. Howell had constructed, but doesn’t remember what he said; that he used the bath room, and never detected anything wrong before the accident.</p> <p>The testimony of physicians, and others, tended to show serious injuries sustained by Mrs. Howell.' Hpon this evidence the court, on motion of the defendants, instructed the jury to' return a verdict in their favor, and from the judgment thereon the plaintiffs have appealed.</p>

<p>Hearing on an appeal by tbe defendant, tbe Treasurer of the United States, from an order overruling a demurrer to a bill of complaint, and appointing a receiver in a suit in equity to establish an equitable lien upon a fund in the Treasury of the United States.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This is a suit in equity begun by Charles F. Consaul and Ida M. Moyers, administrators of the estate of Gilbert Moyers, against Ellis H. Eoberts, as Treasurer of the United States, and one John Holland, who resides in the State of California.</p> <p>The bill alleges that on June 25, 1886, one Pleasant W. Bar-bee, as administrator de bonis non of James Campbell, deceased, employed Gilbert Moyers as his attorney to prosecute a claim against the United States, and executed and delivered to him tbe following obligation:</p> <p>Know all men by these presents, that I, Pleasant W. Bar-bee, as administrator de bonis non of the estate of James Campbell, deceased, have employed Gilbert Moyers, of Washington, D. C., as my attorney, to prosecute this claim against the United States govermnent, and, in consideration of his professional services and expenses incurred by him in the prosecution of said claim, I agree to allow him the fee of 50 per cent of the amount which may be collected thereon; and said fee is hereby made a lien on any draft that may be issued in payment of said claim.</p> <p>Witness my hand and seal this 25th day of June, 1886.</p> <p>P. W. Barbee.</p> <p>Witnessed by L. C. Culson.</p> <p>It is further alleged that Moyers prosecuted said claim in the court of claims, which held that Campbell came within the terms of the act permitting recovery in such cases, but that the bulk of the property, the taking of which was the subject-matter of the suit, had been taken after his death, and that his next of kin were the proper parties to maintain the suit; that Moyers informed the latter of this decision, and they thereupon authorized him to appear for them and prosecute the claims on their behalf; that Moyers then prepared a petition on behalf of John Holland, who was a grandson of said Campbell, and sent it to him for execution; that said Holland executed and returned the same, authorizing Moyers to prosecute the suit on his behalf, and agreeing to the same terms and conditions as in the contract made with Barbee, administrator, before set out; that in the suit so prosecuted the court of claims awarded the sum of $403 to said Holland on April 10, 1899; that on May 27, 1902, Congress appropriated the sum of $403, out of any money in the Treasury, to be paid to said John Holland in satisfaction of said award; that the said Holland failed during the life of said Moyers, whose services had procured the establishment of the claim, to execute a power to him to receive said money from the Treasury, and since his death has refused to empower the administrators aforesaid to receive the same, and has not paid the fee due to said Moyers; that said Holland has not only refused to j>ay said fee, but is endeavoring to obtain possession of the draft for said appropriation, with the intent to defraud the plaintiffs as administrators; that said Holland has no other property of any kind -within the jurisdiction of the court, and, unless restrained, will procure the transmission of the draft to a place beyond the jurisdiction of the court.</p> <p>The prayers were that Holland be restrained from receiving the draft, and Eoberts, as Treasurer, from delivering the same to him; that a receiver be appointed to receive said draft and to collect the money thereon to be held subject to the further order of the court; and for a decree against Holland for $201.50 with costs of suit, to be established as a' lien upon said fund and paid out of the same, etc. *</p> <p>No service of process has been had upon Holland, and he has made no appearance. Defendant Roberts, having been served with process, appeared and entered a demurrer to the bill. Subsequently, by way of return to the rule to show cause, he objected to the jurisdiction of the court because of his relation to the fund as an officer of the United States, merely, in the discharge of an official duty, and set up the invalidity of the contract as an assignment of a claim against the United States.</p> <p>The demurrer was overruled, and an order was entered appointing one Christopher N. Wilson receiver, and directing him to demand and receive of defendant Roberts, as Treasurer of the United States, the sum of $201.50 out of the $403 appropriated for the defendant John Holland.</p> <p>From this decree the defendant Roberts has. appealed.</p> <p>1. While an officer of the United States may, in regard to purely ministerial duties, be restrained by injunction or compelled by mandamus, yet these remedies may be invoked only when, in the one case (injunction), a plain official duty is threatened to be violated and some person will sustain personal injury thereby, for which adequate compensation cannot be had at law, and, in the second case (mandamus), where an officer refuses, to the injury of some person, to perform a plain official duty. Roberts v. Bradfield, 12 App. D. C. 453, 458; Brad-field v. Roberts, 175 U. S. 291, affirming last cited case; Noble v. Union River Log. R. Go. 147 U. S. 165, 172; Board Liquidation v. McGornb, 92 U. S. 531, 541. The defendant Roberts, as Treasurer of the United States, has neither threatened to violate nor refused to perform a plain official duty.</p> <p>2. Furthermore, this suit, being one to restrain the United States from paying one of its debts, is substantially a suit against the United States, and the United States is a necessary party. Stanley v. Schwalby, 147 U. S. 508, 512. See also Ee Ayers, 123 U. S. 443; The Siren, 7 Wall. 152, 154. But the United States cannot be sued without its consent. This doctrine is indisputable. See cases last above cited, and also United States v. Clarke, 8 Pet. 436, 444.</p> <p>3. No injunction can be issued by the courts of the United States against officers of a State to restrain or control the use of property already in the possession of the State or money in its treasury when the suit is commenced; or to compel the State to perform its obligations; or where the State has otherwise such an interest in the subject of the suit as to be a necessary party. And the same rule applies to officers of the United States. Bellcnap v. Schild, 161 U. S. 10. See also Minnesota v. Hitchcock, 185 U. S. 373; International Postal Supply Co. v. Bruce, 194 U. S. 601, 606; United States v. Guthrie, 17 How. 284; Be Ayers, 123 U. S. 443, 489, 502, 506, 507. The court below is, therefore, without jurisdiction or power to compjel the defendant Eoberts, as Treasurer, to pay over money of the United States. It is true the.order of the court below appointing the receiver does not, in so many words, command the Treasurer to pay the money to the receiver; but should the Treasurer refuse to pay out the money on demand of the receiver the nest step would necessarily.be a motion for an order compelling him to pay it. The Code of the District of Columbia provides, in sec. 113, for the enforcement of final decrees, and sec. 114 provides that “all interlocutory orders may be enforced by such process as might be had Upon a final judgment or decree to the like effect.” Now if the court below has no power to make an order compelling the Treasurer to pay out the money,— and it is submitted that it has been clearly shown that it has no such power, — then its action in appointing a receiver is abortive. The power to compel payment and the power to appoint a receiver necessarily stand or fall together.</p> <p>4. Passing now to the defendant Holland, how has the court below obtained jurisdiction of him ? It is alleged in the bill of complaint that he is a resident of the State of California. The record discloses the fact that all the process issued by the court below was returned not found as to him, and fails to disclose any attempt on the part of the complainants to secure service of process by publication, as provided by secs. 105 and 106 of the Code of the District of Columbia, even could service be secured in such manner on the ground that he has property located within the District of Columbia and within the jurisdiction of the court, which question will be discussed later. A final decree in equity, or an interlocutory decree, which, in a great measure, decides the merits of the cause, cannot be pronounced until all the parties to the bill, and all the parties in interest, are before the court. Conn v. Penn, 5 Wheat. 424; Marshall v. Beverly, 5 Wheat. 313; Traders’ Nat. Bank v. Campbell, 14 Wall 81.</p> <p>5. The court below has no jurisdiction of the-subject-matter of the suit. This fund has no separate entity as distinguished from the general funds of the United States, which are in the custody of the Treasurer and his assistants, not only in the Treasury in Washington, but in the various subtreasuries throughout the country, and cannot be segregated from this general fund except by regular proceedings governed by law, namely, by a warrant issued by the Secretary of the Treasury authorizing its separation and withdrawal from the general fund. This money is not set aside into a specific fund, but is to be paid out of the general fund of moneys belonging to the United States. See Wyman r. Halstead, 109 U. S. 654; Buchanan v. Alexander, 4 How. 19, 20. See also The Siren, cited above. If there is any property of the defendant Holland within the District of Columbia and the jurisdiction of the court below, it consists of a debt due by the United States to said Holland. But it is well settled that debts due from the United States have no locality .at the seat of government. Vaughan v. Northup, 15 Pet. 1. See also Mackey v. Coxe, 18 How. 100, 105; Wyman v. Halstead, 109 U. S. 654, 656, 658; United States v. Borcherling, 185 U. S. 223, 233.</p> <p>6. If this claim or debt is property of the defendant Holland located in the District of Columbia, still it is not within the jurisdiction of the court below, for the bill prays for and the court granted what amounts to an equitable attachment of funds in the hands of the United States, or of a debt due from the United States. A debt due by the United States or by a State or municipal government cannot be reached by attachment or garnishment. Drake, Attachm. §§ 492-515; Buchanan v. Alexander, 4 How. 19, 20.</p> <p>Y. There is no equity in the bill of the complainants because it seeks to enforce a void assignment. Section 34YY, U. S. Rev. Stat, provides that “all transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or of any part or share thereof, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof. Such transfers, assignments, and powers of attorney must recite the warrant for payment, and must be acknowledged by the person making them, before an officer having authority to take acknowledgments of deeds, and shall be certified by the officer; and it must appear by the certificate that the officer, at the time of the acknowledgment, read and fully explained the transfer, assignment, or warrant of attorney to the person acknowledging the same.” This law has been sustained in a long line of cases, and a very clear distinction has been drawn between voluntary assignments made by individuals and transfers of title by operation of law. It prohibits assignments by individuals, but does not apply to the passing of claims to heirs, devisees, assignees in bankruptcy, copartners, and so forth. Erwin v. United States, 9Y U. S. 392, 39Y; Spofford v. Eirk, 9Y U. S. 484; Goodman v. Niblach, 102 U. S. 556, 560; Hobbs v. McLean, 11Y U. S. 56Y; Butler v. Goreley, 146 U. S. 303, 311-313; ILager v. Swagne, 149 TJ. S. 242; Ball v. Halsell, 161 U. S. 12; Howes v. United States, 24 Ct. Cl. 110; Owens v. Wilkinson, 20 App. D. C. 51. The contract set forth in the bill of complaint is, if a contract at all, merely a personal agreement between Holland and Moyers, and did not give Moyers a lien upon the claim of the defendant Holland. Tñst v. Child, 21 Wall: 441, 441. If Moyers had not such a lien, the bill is without equity, and must be dismissed. Spofford v. Kirk, 91 IT. S. 484, 481. Furthermore, if the contract did give Moyers a lien upon the claim of Holland against the United States, it could operate only as an equitable assignment of a portion of the claim, and if it is an equitable assignment it is absolutely void under sec. 3411, U. S. Eev. Stat. Spofford v. Kirk, 91 U. S. 488.</p> <p>8. There is no equity in the bill because it seeks, by virtue of a decree in equity, to create a lien in the nature of an assignment by operation of law; in other words, it seeks the aid of a court of equity to breathe life and validity into a void assignment. ;</p>

Hearing on an appeal by a collector of a decedent’s estate from an order of the Supreme Oourt of the District of Columbia sitting as a probate court, removing her as collector. (In this case an application was made to this court for the allowance of a special appeal from the order of the lower court in question.

<p>Statutory Construction; Personal Tax Law; Claim Agent.</p> <p>1. All statutes imposing restrictions upon business or tbe common occupations of tbe people, or levying a tax upon them, are to be construed strictly. (Following Washington Electric VeMcle Transp. Go. v. District of Columbia, 19 App. D. C. 462.)</p> <p>2. That portion of paragraph 46 of see. 7 of tbe act of Congress of July 1, 1902, providing for the payment of personal taxes in this District, which imposes a personal tax of $25 a year on “claim agents,” is void for uncertainty, there being no definition in the act of a claim agent, and the words having no fixed or reasonably certain popular signification.</p> <p>3. Where a personal tax law imposes a tax on a certain occupation without defining it, it is doubtful whether the court, in construing it, can look to old and repealed tax laws which define such occupation to ascertain the legislative meaning.</p>

Hearing on an appeal by the defendants from a decree of the Supreme Court of the District of Columbia in a suit to recover a trust fund alleged to be in the hands of the defendants as executors of the deceased trustee. The Court in the opinion stated the case as follows: This is a suit to recover a trust fund.

<p>Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia upon a 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>• This is an action to recover damages for personal injuries sustained by the plaintiff, Frank 13. Swart, through the negligent acts of the servants and agents of the defendant, Joseph S. Justh. The declaration is in the ordinary form, and issue was joined on defendant’s plea of not guilty.</p> <p>The evidence is recited as follows in the bill of exceptions:</p> <p>“Be it remembered, that on the trial of this cause the plaintiff, in order to maintain the issues on his part joined, gave proof tending to show that the defendant on the 15 th day of March a. d. 1902, and for some time prior thereto, was the owner of premises known as 1805 Fourteenth street, northwest, in the city of Washington, in the District of Columbia; that prior to said 15th day of March the defendant had leased the same to Barnet H. Swart, and that the said Barnet H. Swart was on the said last-mentioned day, and for some time prior thereto, occupying the same under the said lease, and conducting thereon the flour and feed business; that upon said premises and in the rear thereof there was a stable opening into an alley, which said stable abutted upon said alley; that said Barnet H. Swart used said stable for the accommodation of his horses and wagon, and that his agents and servants were accustomed to pass to and fro, in and upon said alley, for the purpose of gaining access and depea-ting from said stable; that the plaintiff on the said 15th day of March, and prior thereto, was employed by the said Barnet H. Swart as manager and solicitor of aforesaid business, and in the performance of his duties as such he was compelled to be in and upon said premises and in and upon said alley in proximity to said stable; that prior to said 15 th day of .March, complaint was made to the said defendant of the condition of the roof of said premises, and he was requested to repair the same, and that a few days prior to the said 15th day of March the defendant sent a certain Charles A. Leaman to said premises to repair said roof; that on the said 15th day of March, said roof having been repaired by said Leaman, the defendant appeared upon said premises with the said Leaman and with a certain Mr. Limpert, and requested permission to go upon the roof of said premises where said repairing had been done, which permission was given to him by William Bay, an agent of the said Barnet H. Swart; that the defendant accompanied by the — Leaman and Limpert went upon the said roof and directed them to remove certain debris lying upon said roof, consisting, among other things, of a number of heavy boards about 6 feet long and 4 feet wide, covered with tin and weighing about 500 pounds, which had been created in the repair of said roof and left thereon ; that later in the said day the said Leaman and Limpert by way of removing said boards and tin shoved the same from said roof down upon the plaintiff, who in the proper performance of his duties as manager for the said Barnet H. Swart was then in and upon said alley; that the plaintiff was not aware of the presence of the said Leaman and Limpert upon said roof, and that the said Leaman and Limpert gave no warning before shoving said board and tin from said roof, and that the said Leaman and Limpert could have seen the plaintiff before they shoved said tin and boards from said roof had they looked; that the plaintiff’s foot was fractured by the said tin and boards striking him as aforesaid and his head lacerated and other damage done him. The defendant offered evidence tending to show that he contracted with the said Leaman for putting a skylight on said roof at a cost of $6, and that prior to the said 15th day of March lie had settled with the said Leaman, who had completed his contract with him; that thereafter on the morning of the 15th Lea-man came to the defendant and said to him, ‘I would like to have that material on the roof that was left there,’ and the defendant said to him: ‘You may;’ that thereafter the said Lea-man, together with the said Limpert, by way of removing said debris, threw the same from the roof; that the defendant did not accompany them thereon, and gave no directions at any time as to the removal of said debris, and did not know that the accident had happened until several days thereafter; that said debris weighed about 50 pounds and was removed in a one-horse dayton wagon. This was the substance of all the evidence offered.”</p> <p>No special instructions were asked by either party, and this evidence was submitted to the jury upon a charge, to which the plaintiff excepted specially. A verdict having been returned for the defendant, the plaintiff has appealed from the judgment entered thereon.</p>