Volume 5 — Appeals, District of Columbia

<p>Seventy-Third Rule ; Affidavits.</p> <p>1. The plaintiff’s affidavit under the Seventy-third Rule of the Supreme Court of this District, allowing summary judgments in certain instances, is to be strictly construed, while the defendant’s affidavit of defense is to be liberally construed, following Lawrence v. Hammond, 4 App. D. C. 467.</p> <p>2. While such an affidavit of defense must allege facts which will constitute a substantial defense with reasonable distinctness and precision, the fact that the defense may appear to be unreasonable will not make it insufficient, following Vogeler v. Cropley, 2 App. D. C. 28, and Richmond v. Cake, 1 App. D. C. 447.</p> <p>3. An affidavit of defense construed and held to be sufficient.</p>

<p>Promissory Notes; Alterations by Erasure; Demand and Notice, Waiver op ; Indorsement.</p> <p>1. There is no presumption in law that the erasure of the printed words “and grace” on a promissory note payable “in one year with interest and grace,” was after indorsement. Nor is such an erasure a material alteration.</p> <p>2. In an action by a bank against the payee of a promissory note made payable to T. D. W. and containing on its back the printed words, “Liable without demand or notice,” under which were the signatures of W. E. H. and T. D. W., in the order given, it was held that the payee had waived demand and notice.</p> <p>3. When a stranger indorses his name on a promissory note before the payee, he must in the absence of proof be regarded either as a guarantor or as an original promissor, and as such is not like an indorser entitled to demand and notice.</p>

<p>Motion to amend decree by awarding costs, including cost of transcript of record furnished by Commissioner of Patents</p>

Hearing on an appeal from a decision of the Commissioner of Patents in a patent interference proceeding. The interference was declared February 9, 1892; proofs were taken and the case tried before the examiner of interferences, who decided in favor of Colhoun. From this decision an appeal was taken by Hodgson to the board of examiners in chief, who affirmed the examiner of interferences.

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

<p>Evidence ; False Arrest and Imprisonment ; Criminal Law ; Arrest; Practice.</p> <p>1. An entry in a police complaint book is not admissible in evidence in an action for false arrest, to show who the complainant was, in the absence of testimony showing that the entry was made in the presence or with the knowledge of the defendant.</p> <p>2. Qusere, whether an officer or citizen has the power to make an arrest, without warrant, for the offense of petty larceny or embezzlement.</p> <p>3. Mere information to an officer by a citizen, tending to show that an offense has been committed and that a person named may be suspected, is not sufficient, of itself, to warrant the inference that the informer or his agents participated in the alleged unlawful arrest and imprisonment of the accused by the officer.</p> <p>4. When the undisputed evidence is so conclusive that the trial court would be compelled to set aside a verdict returned in opposition to it, the court may direct a verdict.</p>

Hearing on appeals by the caveatee in a cause involving the validity of a will. The first appeal was taken from an order of the special term of the Supreme Court of the District of Columbia, sitting as a law court, returning issues which had been sent from the special term sitting as an Orphans’ Court. The second appeal was from a decree of the Orphans’ Court, entered upon the return of the issues with the findings of the jury thereon, revoking the probate of a will.

Hearing on an appeal by the defendant from a decree of sale in a partition suit. The Court in its opinion stated the case as follows: On May 5,1880, one Michael B. Harrington, by a deed in fee simple conveyed certain real estate in the city of Washington to Henry Reidy and Elizabeth Reidy, his wife, to have and to hold the same as tenants in common, and not as joint tenants.

<p>Appellate Practice ; Appealable Orders.</p> <p>An order dissolving a temporary restraining order is not appealable.</p>

<p>Practice ; Scire Facias ; Bill of Exceptions ; Rehearing ; Plea of Limitations; Amendment.</p> <p>1. In the trial of an issue on a plea of nul tiel record to a sci. fa. on judgment the record inspected makes no part of the proceedings of the case on trial; and the decision of the lower court can be reviewed only by means of a bill of exception, setting forth the record offered and the ruling thereon excepted to.</p> <p>2. And to make the ruling of the trial court on an issue raised by a plea of the Statute of Limitations to a sci. fa. reviewable, the ruling must be excepted to and a bill of exceptions made up.</p> <p>3. A rehearing will not be granted in this court and original papers ordered to be produced in order to perfect a defective record and enable the technical defense of limitations to be urged.</p> <p>4. The power of amendment is equally applicable, and to the same extent, in the case of a sci. fa. as in the case of an ordinary execution.</p>

. Heabing on a petition by a defendant under indictment for forgery and embezzlement for the allowance of an appeal, under the act of Congress of February 9, 1893, from an order overruling his demurrer to the indictment.

Hearing of an appeal and a cross appeal from a decree construing a will and directing distribution.

<p>Patents.</p> <p>An application for a patent for an improved process of reducing refractory oxides, held to have been properly rejected by the Patent Office, on the ground that the claims made had all been anticipated in a patent previously issued.</p>

<p>Patents ; Conception of Idea ; Reduction to Practice ; Burden of Proof.</p> <p>1. The person who first reduces an idea embodied in an invention to practical shape and form is to be regarded as the first and original inventor in contemplation of law, although the idea may have been previously entertained by others.</p> <p>2. Where the idea embodied in an invention is conceived by one person and communicated to another, who reduces it to practice, the party conceiving the idea is entitled to the benefit of his conception, and the reduction to practice by the party to whom the idea was communicated will inure to his benefit.</p> <p>3. But the burden of proving such communication is upon the party asserting it.</p>

Hearing on an appeal by the caveatees based on exceptions taken upon the trial of issues framed on the caveat of a will, and from an order of the Orphans’ Court refusing probate of the will on the verdict found. The facts are sufficiently stated in the opinion.

Hearing on an appeal by tbe plaintiff from a judgment in an action of covenant, a verdict for defendant having been directed by tbe court.

<p>Constitutional Law; Congressional Investigating Committees, Witnesses Before.</p> <p>1. Sec. 102, R. S. U. S., to enforce the attendance of witnesses before Congressional committees, is constitutional.</p> <p>2. The resolution of the United States Senate, of May 17, 1894, appointing a committee to investigate newspaper charges of bribery and corruption of Senators in connection with the sugar schedule of a then pending tariff bill, and to ascertain whether any Senator had been or was engaged in speculating in sugar stocks, embraced a matter properly and constitutionally within the cognizance and jurisdiction of the Senate.</p> <p>3. In the course of such an inquiry, questions propounded to a witness summoned to appear before the committee, as to whether the firm of stockbrokers, of which witness was a member, had bought or sold sugar stocks during a certain period for or in the interest of any Senator, or was carrying any such stocks for any Senator, were pertinent to the subject matter of the inquiry that the committee was charged to investigate.</p>

<p>Tariff ; Sugar Bounty.</p> <p>1. The repealing clause, paragraph 182, of the revenue act of Congress of August, 1894, (28 Stat. 521) expressly repealed those clauses of the revenue act of October 1, 1890, (26 Stat. 583) granting bounty to licensed sugar producers; and such repeal had reference not only to licenses to be granted producers thereafter, but also to licenses granted and existing at the date of the passage of the act of 1894.</p> <p>2. No contractural or vested rights to bounty were acquired by licensed sugar producers by a compliance with the requirements of the act of Congress of 1890, granting bounties under certain conditions, such as would entitle producers to compel a payment of such bounty by the United States.</p> <p>3. The provisions of the revenue act of Congress of October 1, 1890, granting bounty to sugar producers, were unconstitutional and void.</p>

Hearing on an appeal by the complainant from a decree dismissing a bill to establish a lien on certain real estate. The pacts sufficiently appear in the opinion.

Hearing on an appeal by the plaintiff from a judgment on a verdict directed for the defendant.

Hearing on an appeal by tbe defendant from a judgment in an action to recover damages for personal injuries.

Hearing on an appeal by the plaintiff from a judgment entered upon a verdict for the defendant, directed by the court, in an action of ejectment. The Court in its opinion stated the case as follows: This is a suit in ejectment to recover an undivided interest in part of lot No. 13, in square No. 818, in the city of Washington. One Benjamin Newton, who died on December 19, 1863, was the owner, in fee simple, of the whole of said lot No. 13 at the time of his death.

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

Hearing on an appeal by the plaintiff from a judgment in a proceeding by sci. fa. to revive a judgment. The Court in its opinion stated the case as follows : On June 1, 1878, Stephen V. Harper, the appellant, filed a declaration in the Supreme Court of the District against Samuel T. Brown and William Cunningham, trading as Brown & Cunningham, to recover the sum of $149.10, for services performed as pilot on a steam canal boat.

<p>Equity Pleading and Practice ; Auditor’s Report, Exceptions to ; Presumptions ; Trustees ; Evidence.</p> <p>1. General exceptions to an auditor’s report, as that the auditor in certain schedules failed to give credit to a decedent’s estate for all the money paid out by him during his lifetime, and that the auditor’s conclusions of fact are not justified by the testimony, are insufficient. Such exceptions must point out specifically the error or omission excepted to.</p> <p>2. The findings of an auditor or master, confirmed by the lower court, are to be taken as presumptively correct, and will be permitted to stand unless some obvious error has been committed.</p> <p>3. Persons in fiduciary relations to others must keep distinct and accurate accounts, and render them whenever legally demanded ; and the onus is on them to show how the estate has been administered and to what extent they are entitled to acquittance.</p> <p>4. If full and accurate accounts have not been kept by such persons, all presumptions are to be indulged adversely to them, and all obscurities and doubts are to be taken most strongly against them.</p> <p>5. In a proceeding in equity for an accounting against the estate of a deceased trustee, a letter written by him to the widow of one of his cestui que trusts, explaining and justifying his conduct, is inadmissible in evidence.</p>

<p>Promissory Notes ; Partnership ; Authority op one Partner to Bind Firm; Practice; Exceptions to Charge ; Appeal-able Orders.</p> <p>1. Prayers for instruction which submit to the determination of the ' jury the questions whether, and under what circumstances, the making and endorsing of a promissory note by one partner will bind his firm; whether, under the facts of the case, one partner is estopped to deny the authority of his copartner to endorse in the firm’s name, no definition of what constitutes an estoppel being given; and whether the firm is liable on notes endorsed by one partner in the firm’s name, are properly refused, as requiring the jury to determine questions of law.</p> <p>2. A general exception to a charge, which does not direct the attention of the court to the particular portions of it to which objection is made, raises no question for review on appeal.</p> <p>3. An order overruling a motion for a new trial is not appealable.</p>

Hearing on an appeal by the defendants from a judgment on verdict in an action for malicious arrest.

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

<p>Appeals in Habeas Corpus Proceedings ; Appellate Practice; Citation on Appeal; Appeal, Dismissal oe; Criminal Law; Rearrest; Term oe Imprisonment.</p> <p>1. An appeal from an order made upon the return to a writ of habeas „, corpus directed to the warden of the District jail, discharging a prisoner from custody, should be by the warden and not by the United States, as the United States cannot be made respondents in such a proceeding.</p> <p>2. But when the clerk of the lower court, in such a case, in the citation on the appeal, through error, recites that the appeal is by the United States, and upon the filing of the transcript of the record in this court, the clerk titles the cause and enters it upon the docket as the appeal of the United States, such error is not ground for the dismissal of the appeal.</p> <p>3. Where in such a case an appeal is taken in open court at the time the order is made, and the prisoner is rearrested and required to enter into a recognizance to answer to the appeal, and appears in this court by counsel at the beginning of the term, it would seem that a citation is unnecessary.</p> <p>4. While in such a case the appeal may be in the name of the warden, the United States are the real parties appellant, and under Sec. 1001, R. S. U. S., no appeal bond by him is necessary.</p> <p>6. When the transcript of a record on appeal has been filed in this court, an order of the lower court dismissing the appeal is a nullity.</p> <p>6. It is not necessary that the warden of the District jail should file with his return to a petition for a writ of habeas corpus, to compel him to discharge a prisoner from custody, the copy of the warrant under which the prisoner is held by him ; construing Sec. 1029, K. S. ü. S.</p> <p>7. If the warden of the jail, upon an order of the Supreme Court of the District, in a criminal case, releases a prisoner from custody, although he has at the time a warrant from the Police Court for the detention of the prisoner under a sentence in that court, his inadvertence in so releasing the prisoner will not prevent him from legally retaking him into custody.</p> <p>8. In such a case it is not necessary that the original warrant from the Police Court should be reissued before the warden can retake the prisoner.</p> <p>9. And in such a case, where the sentence of the Police Oourt is that the prisoner shall be imprisoned for sixty days, but does not specify when the term should begin or end, and the sixty days have expired during the appeal from the order in the habeas corpus proceedings, the term of the imprisonment will not expire until after sixty days of actual detention, and the term will begin after he is recommitted to the custody of the warden.</p>

<p>Orphans’ Court, Jurisdiction of ; Partial Distribution of Estates ; Wills ; Trustees ; Costs on Appeal.</p> <p>1. Where an estate is ready for final distribution by the executors, except for the pendency of an appeal, which appeal does not operate as a supersedeas, the Supreme Court of the District of Columbia, holding a special term for Orphan’s Court business, has jurisdiction under the Maryland Act of 1798, upon the petition of a legatee, to order such a partial distribution of the estate as will preserve the rights of all parties interested, whether the will be sustained or invalidated on the appeal.</p> <p>2. If a will expressly provides that the trustee of a legatee for life shall apply the rents, issues and profits of the trust fund to the legatee’s use, paying the same over to her, she is entitled-to the income from the time of the testator’s death; and a subsequent direction in the will to the trustee to pay over the principal and “all the accumulations,” upon the death of the legatee, to certain other persons, does not show a contrary intent.</p> <p>3. Where a trust fund consists in part of shares of stock in certain corporations, the increase in the capital stock of such corporations constitutes an accretion to the benefit of the fund and not a part of the dividends or income for the benefit of a life tenant.</p> <p>4. A decree of the Orphans’ Court directing the partial distribution of an estate, held, on appeal by the executors, to be too general and uncertain in certain of its terms to afford them adequate protection. ,</p> <p>5. Where a fund is given by a will to a trustee with directions to pay over its income to a legatee during her life, the Orphan’s Court has no jurisdiction over him as trustee, although he may also be an executor of the estate. Its only authority is to direct that the income be paid to the trustee, leaving his cestui que trust to hold him to account in equity.</p> <p>6. If the original record on an appeal brought up by the appellants is sufficiently full, the costs of a certiorari, including transcript fees and charge for printing same, will be taxed against the appellee, although the decree appealed from be reversed.</p>

Hearing on an appeal by one of two defendants from a decree in a suit for an injunction. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the plaintiff from a judgment upon an agreed statement of facts in a suit upon an acceptance of an order for material furnished in the construction of a dwelling house.

<p>Local Insurance Companies, Liabilities op Trustees op; Statutory Construction; Fraud; Evidence.</p> <p>1. Secs. 566 and 567, R. S. D. C., requiring insurance companies incorporated under the laws of the District to publish annually, within twenty days from the 1st of January, a report of their assets and liabilities, and making all of the trustees of any company liable for existing corporate debts for failure to fulfil such requirement, are penal in their nature and are to be strictly construed.</p> <p>2. The trustees liable under such sections are those who are in control of the affairs of the corporation at the time of the default made, and who have incurred the penalty by their neglect of duty.</p> <p>3. If such a trustee resign, as he may do even during the first year of the incorporation of the company, he is not liable for debts incurred by the subsequent default of the officiating trustees to make and file the report required by the statute.</p> <p>4. Fraud in the making and acceptance of the resignation of such a trustee is not to be presumed.</p> <p>5. The resignation of such a trustee may be proved by the oral testimony of witnesses, where the documentary evidence of such resignation is lost or is out of the jurisdiction and difficult if not impossible to trace.</p> <p>6. Semble. In a suit against such a trustee under the statute mentioned a judgment recovered by the plaintiff against the insurance company is inadmissible in evidence.</p>

<p>Pleading and Practice; Misconduct of Counsel; Prayers for Instruction; Allegations and Proof; Excessive Verdict; Remittitur; Costs.</p> <p>1. It is not error for the court below to allow counsel, in the presence of the jury, to read the opinion of this court on a former appeal of the same case, during an argument on the admissibility of evidence.</p> <p>2. When a prayer for instruction, although possibly erroneous, appears by the verdict not to have injured the party excepting to it, the granting of it by the trial court will not be held to be reversible error.</p> <p>3. Where the proof of damage exceeds the amount claimed in the declaration, the plaintiff’s recovery is limited to the amount claimed in his declaration, unless he amends.</p> <p>4. Allegations of general damages in a declaration will not be allowed to contravene allegations of special damages in the same pleading.</p> <p>5. A party recovering an excessive verdict under an erroneous instruction, allowed under the peculiar circumstances of the case to enter a remittitur of a portion of it; and costs of appeal equally divided between appellant and appellee.</p>

Hearing upon an appeal by the complainant from a decree dismissing a bill for the enforcement of a contract.

Hearing on an appeal by the defendants from a judgment on a sci. fa. to revive a judgment. The Court in its opinion stated the case as follows: This is a case of a scire facias to revive a judgment. The original judgment, according to the recitals in the writ of scire facias, was recovered against three defendants, William B. Todd, Edward M. Nourse, and Frank E. Middleton, on the 3d day of July, 1878.

<p>Equity Jurisdiction ; Trust and Trustees ; Ejectment.</p> <p>1. It is beyond the power of a court of equity in its decree in a partition suit, for purposes of convenience and by consent of the parties, however numerous, to vest the title of a portion of the real estate involved in strangers to the suit as trustees, with power to bring ejectment suits and enforce compromises ; and a title so acquired will not support an action of ejectment.</p> <p>2. There is nothing in the act of Congress of May 8,1876 (19 Stat. 213), which grants any such power to the Supreme Court of the District of Columbia holding an equity term.</p>

<p>Hearing on a motion to determine the scope of a former decree upon the subject of costs of appeal.</p>

Hearing on an appeal by the tern tenant of a judgment debtor from a judgment awarding execution in a proceeding by scire facias.

Hearing on an appeal by the complainant from a decree dismissing a bill to set aside a sale of real estate under a deed of trust. The Court in its opinion stated the case as follows: This is an appeal from a decree dismissing appellant’s bill to set aside a sale of two lots in the city of Washington, with improvements thereon, made under a certain trust deed.

<p>Hearing on an appeal by the United States from a judgment on a verdict directed for the defendant, in an action to recover money alleged to have been erroneously paid by a paymaster of the army on a salary account.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is an appeal by the United States from a judgment in an action brought by them to recover certain money paid by mistake to the defendant Eobert A. Phillips, as assignee of two monthly pay accounts of John J. Shaw, then a lieutenant in the United States Army.</p> <p>On January 5,1887, Eobert A. Phillips presented to Major W. F. Tueker, paymaster at Washington, D. 0., for payment, the account of the said Shaw, as lieutenant of the 6th Infantry, for $140 for salary due him for the month ending December 31, 1886. This account was made out in the customary way, duly certified and signed by Shaw and indorsed to Phillips. On February 5, Phillips presented a similar account for the month of January, 1887, duly certified, etc., and indorsed to him. These were paid by Major Tucker, as presented, and retained as vouchers. He was refused credit for them by the Treasury officials and on February 8 addressed a letter to Phillips demanding return of the money.</p> <p>June 11, 1887, the suit was instituted, and before trial, to wit, January, 1890, credit was allowed Major Tucker and his accounts passed. In December and January, and for a long time before, the Sixth Infantry had been stationed at Fort Douglas, in the Territory of Utah. Major Thaddeus H. Stanton was the paymaster of the troops at that post and usually made his payments by checks on a bank at Salt Lake City, which was a United States depository, in favor of the officers or the assignees of their pay accounts. The account of Shaw for December pay was presented to him on December 31, duly made out and certified and indorsed to T. R. Jones & Co., and was paid by check to said assignees. On January 31 the account for that month was presented in the same manner and paid to the same assignees. The vouchers were afterwards returned to the Treasury and credit was then allowed Major Stanton for the payments. Proof was made of the genuineness of Shaw’s indorsement of these accounts to T. R. Jones & Co., but none was offered to prove their signature as attached to the receipt and indorsed on the checks given in payment. These checks were returned to the Treasury by the Salt Lake bank in making its settlement for funds disbursed and were on file in the proper department thereof along with the receipted pay accounts. The court refused to permit the plaintiffs to offer these accounts and checks in evidence because of the failure to prove the signatures of said T. R. Jones & Co., assignees, and an exception was taken to this ruling.</p> <p>Major Stanton testified that Shaw had drawn his pay from him for years either in person or through his assignees; that he paid the accounts for December and January before anyone else, and that the payments had been passed in his accounts with the Treasury. The following articles of the Army Regulations were introduced in evidence:</p> <p>“1439. As far as practicable officers will draw their pay from paymasters assigned to pay the posts where they are stationed. When officers are absent therefrom paymasters will, before paying them, require proof of proper authority for such absence.”</p> <p>“ 1440. An officer shall not hypothecate or transfer a pay account not actually due. When due it may be transferred by indorsement, naming the party to whom it is transferred, and may be paid by the proper paymaster if he be satisfied of the genuineness of the officer’s signature, and if no stoppage or other disability as to pay prevents. The date of transfer, certified by the officer whose account it is, will appear in the indorsement. When an officer transfers his pay accounts he will immediately indicate the fact to the chief paymaster of the department in which he is serving through the paymaster who is expected to pay them. If the officer be on leave, or if his accounts are payable in Washington, the notification of transfer will be made to the paymaster-general.”</p> <p>“ 1491. Overpayments to an officer will be deducted on the first payment after notice of stoppage against him is received, even if the pay accounts have been assigned. The assignee takes the account subject to all risks of stoppage.”</p> <p>It seems that the pay accounts when made out must show where the officer is stationed, when and by whom last paid, and whether he is absent under orders. The accounts presented to and paid by Major Tucker recite that Lieut. Shaw had been away from his post since December 9, under Special Order No. 278, and it is agreed that he was so absent, and that the assignments made by him to Phillips of his pay accounts were made by him early in January and February, respectively. The contents of this Order 278 are not given in the record.</p> <p>Upon the closing of the testimony the court directed the jury to return a verdict for the defendant.</p>

<p>Principal Debtor and Sureties ; Bonds ; Contribution.</p> <p>Where a principal debtor furnishes one of his three sureties with an indemnity bond, and the fund created by the bond is subsequently applied to discharge the debt for which the principal debtor and all three of the sureties are liable, the surety so secured has no right of contribution against his co-sureties; and therefore an attempted assignment by him to the surety on the indemnity bond of his rights against his two co-sureties is a nullity.</p>

Hearing on an appeal by the plaintiff from a judgment on verdict in an action of ejectment. The Court in its opinion stated the case as follows: This is a suit in ejectment instituted in the Supreme Court of the District of Columbia on May 31, 1889, by the appellant, William F. Holtzman, as plaintiff, to recover from the appellees the possession of a lot of ground in the city of Washington, designated as lot 8, in square No. 941.

The opinion of Mr. Justice LIagner, of the Supreme Court of the District of Columbia, delivered January 23,1895, contains a sufficient… Held: in the absence of any statute, that a collector of customs was liable in an action to recover excess of duties paid to him under protest; and in Philadelphia v. The Collector, 5 Wall. 720, the city recovered for duties paid under protest in 1862, before the passage of the provision now constituting Section 3226 of the Revised…

<p>Practice; Motion in Arrest; Defects Cured by Verdict; Variance; Railways; Railway Crossings; Gates and Gatekeepers ; Negligence ; Contributory Negligence ; Passengers, Degree of Care of ; Excessive Verdict.</p> <p>1. Where a supposed defect in a declaration, sought to be taken advantage of by motion in arrest of judgment, proves to be but a defective statement of a good cause of action, and not the statement of an insufficient cause of action, the defect is cured by the verdict.</p> <p>2. Where in an action against two railway companies, one a street and the other a steam railway, by a passenger in a car of the street railway for injuries sustained at a point where the street railway line was crossed by the steam railway line, the declaration alleges negligence on the part of the servants of both defendants, it is not necessary to aver in the declaration that a gatekeeper, whose negligence in part contributed to the injury, was the servant of one of the defendants, or that such defendant was bound to maintain the gates at the crossing.</p> <p>3. If in such a declaration the plaintiff alleges that in the commotion and excitement caused among the passengers in the car in which she was riding, by an anticipated collision, she was pushed or shoved from her seat and thrown to the ground, evidence that she jumped off the car in her effort to avoid injury will not constitute a fatal variance.</p> <p>4. The letting down of gates at a railway crossing upon a street car when the car is immediately upon the crossing, with a locomotive train approaohing, is more than ordinary negligence on the part of the gatekeeper.</p> <p>5. The failure of the driver of a street railway car to observe proper precautions before attempting to cross a steam railway track is gross negligence.</p> <p>6. Where a person suffers an injury from the joint or concurrent negligence of two parties, and both are negligent in a manner which contributes to the injury, they are liable jointly and severally, and no mere comparative degree of care required, or comparative degree of culpability, will affect the liability of either of the defendants.</p> <p>7. A passenger in a public conveyance is not bound to use the highest conceivable prudence and caution in looking out for his or her own safety, but only reasonable prudence and caution; and an act done by the passenger in the presence of impending danger for the purpose of escaping therefrom may not under the circumstances constitute contributory negligence, although it may in fact have contributed to the production of the injury complained of.</p> <p>8. An instruction to the jury in a personal injury case that if they find for the plaintiff they should award such damages, within the limits of the sum claimed in the declaration, as will fairly and reasonably compensate the plaintiff for the injuries suffered, is not erroneous as suggestive of excessive damages, especially where the record shows the verdict to have been for §12,000, while the declaration claimed §30,000.</p>

<p>A decree of the court below, adjusting the rights of claimants to a fund of |18,000, affirmed.</p>

Hearing on two appeals (consolidated) from decisions of the Commissioner of Patents in interference proceedings. The pacts are sufficiently stated in the opinion.

Hearing on an appeal and cross-appeal from an order of the Supreme Court of the District of Columbia sitting as a District Court of the United States, confirming the report of the commissioners in condemnation proceedings; and an appeal by the District of Columbia from a decree in an equity suit granting a permanent injunction against further or other condemnation proceedings.

<p>Contracts, Time op Essence op ; Measure op Damages ; Speculative Profits ; Costs ; Appellate Practice.</p> <p>1. In a contract between a street railroad company which has been required by law to change its motive power from horses to cable, and a car manufacturing company, whereby the manufacturing company agrees to furnish a certain number of cars within a time prescribed, time is of the essence of the contract; and the manufacturing company is answerable in damages for a breach of the contract in failing to furnish the cars within the time agreed upon.</p> <p>2. In a suit on such a contract, evidence of the estimated probable receipts and profits of the railroad company, in the way of passenger fares, which would have been realized if the cars had been delivered in due time, is not admissible, such damages being too speculative and uncertain.</p> <p>3. The true measure of damages in such a case is the reasonable rental value of such cars from the time they should have been delivered to the time of the actual delivery, less the interest on the contract price during such time.</p> <p>4. In this District the successful party in a civil suit is entitled to have the traveling expenses of his non-resident witnesses, at the rate of five cents a mile, taxed in his costs, where it appears that the presence of such witnesses was necessary; construing the act of Congress of February 28, 1799 (1 Stat. 624); See. 848, R. S. U. S., and Sec. 880, R. S. D. C.</p> <p>5. Questions not raised on a trial and presented to the trial court for decision, will not generally be entertained on appeal; but where it is apparent upon the record that the case has been mistried, or tried upon some erroneous theory as to the rights of the parties and the amount recoverable, the judgment will be reversed and the case remanded for retrial.</p>

<p>Trusts and Trustees ; Power to Remove Trustees ; Public Policy ; Costs on Appeal.</p> <p>1. The grant of a power in a will to one of two trustees and the beneficiaries under trusts created thereby, to summarily remove the other trustee, is not against public policy; but its exercise is subject to review by a court of equity.</p> <p>2. The existence of bitter and uncompromising dissensions in such a case, between one of the trustees and the donees of the power, such as to preclude personal intercourse, is sufficient cause to justify the removal of such trustee by the donees ofthe power, especially when the trusts are active ones in which the judgment and discretion of both trustees are necessary for their proper execution.</p> <p>3. A court of equity will, under such circumstances, more readily sanction the removal of the trustee by the donees of the power, than it would grant an original application to remove a trustee for cause.</p> <p>4. An application by a trustee appellant for allowance of costs and counsel fees, when the decree appealed from was affirmed, denied.</p>