Volume 7 — Appeals, District of Columbia

Hearing on an appeal by the Commissioners of the District of Columbia from a judgment directing the issuance of a writ of mandamus to compel them to receive and admit to record the plat of a subdivision of certain lands. The facts are sufficiently stated in the opinion.

<p>Hearing upon an appeal by the defendant from a judgment on verdict in a prosecution for the crime of larceny.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by an executor from an order of the Supreme Court of the. District of Columbia holding a special term for Orphans’ Court business.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on appeal by a defendant convicted of murder and sentenced to death. The Court in its opinion stated the case as follows : The appellant, Thomas J. Taylor, was indicted in the Supreme Court of the District of Columbia for the murder, by shooting, of his wife, Nannie W. Taylor, about eight o’clock in the morning-of September 14, 1894, at their residence in the city of Washington.

Hearing on an appeal by the complainant from a decree sustaining a demurrer to and dismissing a bill for an injunction.

<p>Patents; Interference ; Divisional Application ; Burden of Proof ; Priority of Invention ; Reduction to Practice.</p> <p>1. There is no proper line of division between one application covering a specific device and implying certain adjuncts and another application by the same inventor for the combination of the device and the adjuncts, and one application should not go to patent while the other is in interference.</p> <p>2. When an application goes to patent upon a claim which is not a proper division of another application in interference, the patentee should derive no advantage in an interference by presumption from the fact of issue of the patent on divisional application ; but, coming in subsequently to the filing of his opponent’s claim, by claim of prior invention, he should bear the burden that such claim naturally imposes as between contending applicants in the production of proof as applied to both interferences.</p> <p>3. The filing of an allowable application for a patent constitutes a reduction to practice.</p> <p>4. An exhibit attached to the record in a patent interference case, which does not show the identical thing in issue, and which was manifestly designed and intended as a mere working model and nothing more, may be the evidence to lay the foundation of a claim to priority, but is not of itself sufficient evidence of reduction to practice of the alleged invention.</p> <p>5. A delay of six years, unexcused by sickness or poverty, held fatal to a claim of priority of invention depending upon connecting an earlier conception to a later reduction.</p>

<p>Hearing on an appeal by the plaintiff from a judgment on a verdict for defendant directed by the court, in an action to recover damages for the alleged negligent killing of plaintiff’s intestate.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is a suit by John W. Warner, administrator of Joseph W. Collis-, deceased, to recover damages for the alleged unlawful killing of the appellant’s intestate through the negligence of the agents and employees of the appellee. On the morning of June 22, 1893, Joseph W. Collis was struck and instantly killed on the track of the Baltimore and Ohio Railroad Company at a small station just north of the city of Washington known as University station, by the engine of an express train of that company coming from the northwest in the direction of Washington, while he was apparently engaged in an attempt to board another train of the same company, an accommodation train, standing or slowly moving upon the adjacent track and which was bound in the opposite direction. It appears that on the day before he had purchased what is known as a round-trip ticket, good for thirty days, by the coupon of which, found upon his person after his death, he was entitled to be conveyed from University station to a neighboring station north of it known as Forest Glen. At University station there is a double track running for about a mile or upwards in a straight direction nearly due north and south, and with an uninterrupted view of the road for that distance towards the north. The western track is used for trains moving towards Washington from the north and west, the eastern track for trains going north and west from Washington. On the west side of the road is the ticket office, with a platform around it more or less covered. On the east side is a smaller uncovered platform. About 1,600 feet to the north of the station is a post where it is usual to sound the whistles of engines coming south on the western track, so as to give timely notice of their approach at University station.</p> <p>About 9 o’clock of the morning of June 22, 1893, the accommodation train referred to had come out from Washington, and either had stopped or was about to stop at University station ; for the testimony is conflicting as to whether it had actually come to a stop; and it does not appear whether, when it did come to a stop, any passenger disembarked, or that there was any other person than the deceased to board the train. It is presumed that Collis desired to take the train in order to be conveyed to Forest Glen. He had been seen standing for some time on the western platform; and as the train which he seemed desirous to take came into the station, he started to cross a plank walk which connected the two platforms, presumably so as to enter the train from the eastern platform, from which most easy and convenient access was had to it. His way, however, seems to have been blocked by the incoming train before he could effect a crossing; and thereupon he deviated obliquely from the plank walk, going southward upon the western track and seemingly intending to gain access to the train from the western side, the purpose of the oblique movement apparently being to bring him into line with the platform or entrance landing of one of the cars of the train. An express train from the west was moving south at the time on the western track at the rate of about forty or fifty miles an hour. There is conflict of testimony as to whether the whistle of its engine had been sounded at the whistling post north of the station, which has been mentioned. Immediately, however, before Collis was struck, the engineer of the express train sounded the danger signal, consisting of two or three sharp, quick and shrill blasts from the whistle of the engine; but it is controverted whether this was done in time to be of any service. Collis was struck and killed while his foot was still on the easternmost rail of the western track.</p> <p>The only eye-witness of the transaction was a passenger in the accommodation train, although there were other witnesses introduced on behalf of the plaintiff to show that no whistle had been sounded at the whistling post.</p> <p>On behalf of the plaintiff evidence was also introduced of the existence of a rule of the railroad company to the effect that, whenever a train was standing at a station engaged in receiving or discharging passengers, no other train should attempt to pass the station until the former had commenced to move, or until its conductor had signalled that other trains might proceed. On behalf of the defendant it was testified that this rule had become obsolete and impracticable ; and it was argued that, even if it was in force, it was not applicable to the circumstances of this case, and that it did not appear that the deceased had any knowledge of its existence or had acted upon the faith of it. There was testimony also on behalf of the defendant to controvert the inference of negligence from its alleged failure to sound the whistle in due time ; but into the details of this testimony it is unnecessary here to enter.</p> <p>Upon the case as thus made the defendant moved for an instruction to the jury to return a verdict for the railroad company; and the instruction was given, and a verdict was rendered, upon which judgment was duly entered. To the ruling of the court exception was taken on behalf of the plaintiff; and the case is now here upon his appeal.</p>

Hearing on an appeal by the defendant from a judgmant on verdict in an action by an administrator to recover damages for the alleged negligent killing of his decedent. The Court in its opinion stated the case as follows: This is an appeal from a judgment in an action for damages for personal injuries.

Hearing on an appeal by the District of Columbia from a judgment on verdict in an action to recover damages for personal injuries. The Court in its opinion stated the case as follows: The appellee, Harrison G. Brewer, sued the appellant, the District of Columbia, in the court below to recover damages for an injury received by him through the defective condition of a sidewalk on Brown street, Mount Pleasant, in the city of Washington.

<p>Hearing on an appeal by the complainants from a decree dismissing a bill for partition, accounting, etc.</p> <p>The Court in its opinion stated the case as follows:</p> <p>The bill in this case was filed on the 10th of February, 1893, by the appellants, Fannie P. Williams, Mary H. Bell, Robert Ransom, Jr., James J. B. Ransom, Matt. W. Mc-Corkle, Henry H. Ransom, George G. Ransom and Seymour H. Ransom, against the appellees, John W. Paine, Estelle T. Paine, John Paine and Ogle Tayloe Paine. The bill, as amended, is framed with several aspects, and seeks to obtain relief in respect to several matters, and in various forms. The plaintiffs allege themselves to be entitled in fee, as heirs at law of Mrs. Mary Ransom, deceased, to one undivided sixth part of square No. 53, located in the city of Washington, District of Columbia, as tenants in common with the defendants, who own the other five-sixths of said square. Mrs. Ransom, under whom the plaintiffs claim, was the wife of General Robert Ransom, and died intestate, in North Carolina, February 7, 1881, her husband surviving her, but who has since died, and before the filing the bill in this case.</p> <p>It appears from the allegations of the bill and the proof,' that Mary Huntt, one of the three children left by Dr. Henry Huntt, who had died intestate, intermarried with • Robert Ransom, Jr. ; and that the three children, namely, Mary Huntt, afterwards Mary Ransom, Fannie Huntt, who intermarried with George Gibson, and George Gibson Huntt, inherited as heirs at law of their father, Dr. Henry Huntt, the one moiety or half of said square No. 53, and of certain other parcels of ground in the city of Washington — the same having been previously acquired and held in equal moieties or halves, as tenants in common, by the said Dr. Henry Huntt and the late Benjamin Ogle Tayloe; that, being so seized and possessed, after their marriage, Mary Ransom and her husband, Robert Ransom, then an officer in the army of the United States, and stationed at Carlisle, in the State of Pennsylvania, by their joint power of attorney, executed and acknowledged on the 23d of May, 1859, t° George Gibson Huntt, the co-owner and brother of Mrs. Ransom, authorized and empowered the said George Gibson Huntt to control, manage, bargain and sell, and in that event to convey, etc., all their right, title and interest in said property. George Gibson Huntt was also an officer in the army. About two years from the date of the power of attorney, the civil war broke out between the States, and Robert Ransom resigned his commission in the army of the United States, and accepted a commission in the Confederate States army, and afterwards attained the high rank of Major General in that army; and during the war his wife, the mother of the plaintiffs, remained in the South, within the Confederate lines. In the summer of 1864, and during the continuance of the war, Walter S. Cox, Esq., then a practicing attorney here in the city of Washington, a relative of the heirs of Dr. Huntt, and now one of the Associate Justices of the Supreme Court of the District of Columbia, was solicited, especially by Mrs. Gibson, to effect a sale of the interest of the Huntt heirs in the property mentioned and referred to in the power of attorney, including square No. 53, held as tenants in common, as before stated. Accordingly, Mr. Cox, through a real estate broker, did effect a sale of all the interest of all the parties claiming as heirs of Dr. Huntt, in the property so held as tenants in common, and which sale was made to Benjamin Ogle Tayloe, the co-tenant, at and for the sum of $2,500. Thereupon Mr. Cox rendered a statement to Mrs. Gibson, one of the parties in interest and a sister of Mrs. Ransom, as follows:</p> <p>Amount of purchase.....................$2,500 00</p> <p>Payment of taxes by Mr. Tayloe, amounting to. 199 27</p> <p>Leaving a balance of...................$2,300 73 to be divided into three parts, making the dividend to each of the three heirs the sum of $766.91. The whole amount of the purchase money, less the taxes deducted, was paid by Mr. Tayloe to Mr. Cox, and the latter paid over the same to Mrs. Gibson; and the share of Mrs. Ransom was paid over to her, Mrs. Ransom, by her sister, Mrs. Gibson. And on the 29th of November, 1864, George Gibson Huntt, by virtue of the power of attorney from Ransom and wife, before referred to, reciting the sale and payment of the purchase money, made and executed the deed to Tayloe, set forth in the record. Both the power of attorney and this deed to Tayloe were admitted to record together on the 14th of January, 1865.</p> <p>It also appears, both from allegations and proof, that Benjamin Ogle Tayloe died testate in 1868, leaving several children, among them a daughter, Julia Dickinson Tayloe, who had previously married John W. Paine, one of the defendants ; and that the testator by his will, and codicil thereto, devised his real estate, including square No. 53, to his three daughters in fee simple, as tenants in common; that afterwards, by deeds of partition, dated November 7, 1870, the real estate so devised in common was divided, and the devisees took their respective shares in severalty, and in this partition square No. 5 3 was allotted and conveyed to Mrs. Paine. Mrs. Paine died intestate in February, 1872, leaving surviving her her husband, John W. Paine, and as her only heirs at. law three infant children, defendants in this case. The property was vacant and wholly unimproved; and some time before the purchase of the interest of the Huntt heirs, as above stated, their interest in the property had been sold for taxes due the corporation of the city of Washington, and Tayloe had become the purchaser and taken a deed therefor; and from that time forward he continued to pay all taxes and public dues thereon ; and from the time of the partition of the real estate among the three daughters of the testator, John W. Paine, one of the defendants, continued to pay the taxes thereon, and to exercise exclusive ownership over the same, in right of his wife, and for himself and his children; and subsequently, at a cost of about $125,000, he erected twenty-two stone and brick dwelling houses on the square, from which he has been in the receipt of the rents.</p> <p>The bill, alleging the facts to which we have referred, and others less material, prays for the following relief:</p> <p>1st. That the deed or instrument purporting to be made by George Gibson Huntt, by virtue of the power of attorney made to him by Ransom and wife, be declared null and void,- as a cloud upon the title of the plaintiffs ;</p> <p>2d. That the right of the plaintiffs to a one-sixth part or interest in fee as tenants in common in said square No. 53 be established against all the said defendants by decree, as well the tenant for life, as the reversioners, heirs at law of Mrs. Paine, deceased;</p> <p>3d. That plaintiffs may have the said one-sixth part of square No. 53 set off to them in one undivided interest, if that be found practicable, and if not, that a sale of said square may be had under the direction of the court, and a distribution of the proceeds according to the interests of the parties entitled;</p> <p>4th. That John W. Paine, the surviving husband of Mrs. Paine, and one of the defendants, be required, under the direction of the court, to account to the plaintiffs for the rents and profits received by him from the said one-sixth part of said square No. 53, and that accounts thereof be taken; and,</p> <p>5th. That the plaintiffs may have all such further and other relief as the nature of the case may require.</p> <p>All grounds of relief as set forth in the bill are controverted by the answer of John W. Paine, the tenant for life; and the other defendants, by their answer, say that they are not in possession of said square, and have never been in possession of it; and that the property in controversy descended to them upon the death of their mother, subject to an estate for life by the curtesy vested in their father; and that they have no manner of interest or concern with the account of rents and profits prayed against the life tenant, and they therefore object to the bill as being multifarious. With respect to most of the facts alleged, they say they have no personal knowledge, and they therefore demand proof thereof.</p> <p>The court below dismissed the bill, and the plaintiffs have appealed.</p>

<p>Hearing on an appeal by two defendants indicted for and convicted of adultery.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by a defendant indicted for and convicted of adultery.</p>

Hearing on an appeal by the defendant from a judgment under the seventy-third rule in an action on a sealed instrument.

<p>Hearing on an appeal from a decree confirming a report of the auditor.</p> <p>The Court in its opinion stated the case as follows :</p> <p>Patrick B. Dunn was a wholesale dealer in liquors in the city of Washington. He died March 28, 1890, leaving a widow, Ann Dunn, and several children. By his will Ann Dunn and one of his sons, William H. Dunn, were made executors, and his entire estate was devised and bequeathed to his widow, Ann Dunn, for life, with the remainder to his children. The will contained the following clause: “ And it is my will and desire that my executors shall carry on the business in which I have been engaged for the benefit of my said wife and children until such time as my executors shall consider best to dispose of the same, when I au-' thorize them to convert said business and the stock, &c., connected therewith, into money, and dispose of the same according to the terms of the first item of this will.”</p> <p>The estate consisted of a small amount of personal and considerable real property- The executors continued the business for something more than a year, with disastrous consequences.</p> <p>This litigation began in a bill (No. 13,343) filed April 7, 1892, by the Gottschalk Company against the executors, the children and devisees of the testator, and the trustees of certain mortages upon portions of the real estate. The bill alleged indebtedness by the testator to the complainant in the sum of $5,928.72, on account of goods sold him on account of his business and due at the time of his decease, demand of the executors, refusal to pay, &c. It alleged that the personal estate in the hands of the executors was insufficient to pay the debts, and describing the real estate left by the testator, prayed that the same be subjected to the payment of the indebtedness. The bill was also for the benefit of such other creditors as might come in, and prayed for an account, for discovery as to the real estate of the testator, for the application of the personal estate, and for the sale of the real estate to cover the deficiency should the personal estate not be sufficient.</p> <p>May 9, 1892, the Live Oak Distillery Company filed a petition to intervene and for leave to file a cross-bill, which was granted. The petitioner alleged the recovery of a judgment against the executors, Ann and William H. Dunn, April 9, 1892, for the sum of $9,205.43, with issue of execution thereon and return nulla bona. The cross-bill, filed the same day, set out the indebtedness in full as contracted by the executors in carrying on the business under the will, the recovery of judgment, issue of execution, &c. It specially described certain real estate whereon the business was carried on as invested therein, and claimed a lien thereon subject to the lien of the creditors of the testator, and asked that such creditors be first required to exhaust the real estate of the testator not invested in said business. It further alleged that the interest of Ann Dunn and William H. Dunn in all of the real estate described in the bill of the Gottschallc Company was equitably subject to the demand of complainant, after the satisfaction of the claims of creditors of the testator, and that upon sale of the said real estate, other than that invested in the business, any surplus distributable to said Ann Dunn and William H. Dunn, should be applied to the satisfaction of complainant’s judgment aforesaid.</p> <p>The prayer was that the complainant be decreed to have a special lien on the lots invested in the business, subject only to the lien of the creditors of the testator; that the estate be marshaled and the general estate be subjected to the lien of the testator’s debts, before subjecting that invested in the business ; and that the life-estate of the widow, Ann Dunn, and the one-eighth interest of William H. Dunn as devisee, in all of the real estate be decreed subject to the complainant’s debt, and that their interest in any surplus arising from the sale of said real estate be applied thereto. A motion to strike out this cross-bill was made by the defendants, Ann and William H. Dunn, and overruled, whereupon they filed a demurrer thereto, which has never been acted upon.</p> <p>On October 20, 1892, the Gottschallc Company filed another original bill (No. 14,278) against the executors, devisees and the trustees named in their first bill, in which, after reciting the same general facts as in No. 13,393, they alleged that the executors aforesaid, while carrying on said business under the will, became indebted to complainant in the sum of $7,181.01, for which it recovered judgment against them on April 9, 1892, on which execution had been issued and returned nulla bona. The prayer was for an account of the incumbrances, &c., and for a decree for the sale of the interests of said Ann Dunn and William H. Dunn as devisees, in all the real estate, other than the premises used in the business, and its application to the complainant’s demand.</p> <p>On March 28, 1893, Mary A. Ashburn, one of the children and devisees of said Patrick B. Dunn, filed a bill against the executors, devisees and creditors of the testator, and against the creditors of Ann and William H. Dunn, including the appellant and appellee herein. This bill, at great length, set out the history of the business, the indebtedness of the testator and his executors on account of said business, the property of the testator and the claims against the same, and a history of the proceedings that had been instituted on account thereof, as they appear hereinabove. The bill also alleges mismanagement and misconduct on the part of the executors, the misapplication of the revenues of the real estate by the widow and life tenant, and the necessity, in the interest of creditors, secured and unsecured, and of the devisees, of having receivers appointed to take possession of, manage and sell the real estate. The bill prayed that the causes No. 13,343 and 14,278 be consolidated with her suit; that an account be taken of the acts and doings of the executors; and that distribution be had of the proceeds of the estate, after sale by the receivers, and a full accounting, &c.</p> <p>Answers to this bill were filed by the Gottschalk Com pany and the Live Oak Distillery Company, in which they reasserted their several claims as in their former proceedings hereinabove set forth in due order. October 30, 1893, on motion of the complainant, no one objecting, the other causes were consolidated with this one.</p> <p>Receivers were appointed to take charge of and sell the real estate described in the bill, keeping separate accounts of the sale of each item thereof. Sales were made and reported, whereupon the account and report of the receivers were referred to the auditor to state the account and report as to the distribution of the proceeds. The entire report of the auditor is not given in the record, as exception seems to have been taken to but one part thereof.</p> <p>It appears from the report that there remained from the proceeds of sale the sum of, $2,826,27 on account of the interests of the said Ann Dunn and William H. Dunn, which the auditor reported as covered by the lien of the cross-bill of the Live Oak Distillery Company to the exclusion of the Gottschalk Company. The latter filed exceptions to the report, claiming that the lien acquired by its independent bill (No. 14,278) was superior to that of the former. The exceptions were overruled, and a decree passed ordering the money paid to the Live Oak Distillery Company as reported by the auditor. It is from this decree that the appeal has been prosecuted, and the only parties before the court are the two rival claimants aforesaid of this fund, -which is insufficient to satisfy the demand of eithei;.</p>

<p>Hearing on an appeal by the defendants from a judgment under the seventy-third rule in an action upon a bond.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal by the defendant from a judgment on verdict in an action for libel.

Hearing on an appeal by the plaintiff from a judgment on verdict in an action of replevin. The Court in its opinion stated the case as follows; This is an action of replevin for the recovery of a piano.

<p>Equity Pleading and Practice; Mortgages; Husband and Wife; Reference to Auditor.</p> <p>1. Where deeds form a part of the recitals of an equity case, or are mere matters of inducement, it is sufficient to describe them substantially in the bill of complaint; but when not so described, or the case turns upon the construction to be given an instrument, the original or a copy should be filed as an exhibit; following Cammack v. Carpenter, 3 App. D. C. 219.</p> <p>2. But where deeds are not so attached to a bill of complaint as exhibits, but copies are subsequently and before hearing filed in the cause at the request of the lower court without objection by the defendant, such course, though irregular, will on appeal be regarded as equivalent to an amendment of the bill in that regard.</p> <p>3. The mortgagee in a mortgage of land in this District, with power of sale, cannot purchase at his own sale; but can maintain a bill to foreclose.</p> <p>4. Where an answer to a bill in equity is incomplete or evasive, it may be excepted to for that reason, but it cannot be ignored or treated as an admission of the allegations of the bill.</p> <p>5. Where a decree for complainant was passed on the pleadings in a suit against husband and wife to foreclose a mortgage of land alleged in the bill to be the separate estate of the wife, which allegation was denied in the answers, the decree was reversed and the cause remanded for further proceedings in order that the character of the wife’s estate might be fully presented by amendment or proof.</p> <p>6. When a mortgage of land lying partly in Maryland and partly in this District is sought to be foreclosed here so far as the land situate here is concerned, the proceeds of a foreclosure sale, if one has been had, of the Maryland land, will be ascertained and credited before foreclosure upon the land here. If no foreclosure has been had in Maryland then the mortgagee will be entitled to foreclosure for the whole amount of his debt upon the land here.</p> <p>7. In a proceeding to foreclose a mortgage the court may either on the hearing or by reference to the auditor ascertain the amount due thereon; and the reference to the auditor is a matter of discretion; following Insurance Co. v. Taylor, 1 App. D. C. 209.</p>

<p>Hearing on an appeal by the complainants from a decree dismissing a bill to set aside a deed.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal by a defendant indicted and convicted of forgery and uttering forged paper and for violation of Sec. 5421, R. S. U. S. The Court in its opinion stated the case as follows: The appellant, Henry W. Howgate, was indicted on April 1, 1895, in two several indictments, the one for forgery and the uttering of a forged paper, and the other for transmitting to an officer of the Treasury Department a certain false or forged certificate with intent to defraud the…

Hearing on an appeal by the defendant from a decree confirming a report of the auditor and directing distribution in a suit for partnership accounting. The facts are sufficiently stated in the opinion.

<p>Hearing on an appeal by the plaintiff from a judgment on verdict in an action of assumpsit.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal by the defendants from a judgment on verdict in an action of ejectment. The Court in its opinion stated the case as follows : This is the second time this case has been before us on appeal taken by the defendant, Aaron Bradshaw. On the first, the judgment was reversed, with some reluctance, because of a technical defect in the charge of the court.

Hearing on an appeal from a decree overruling exceptions to a report of the auditor and directing the distribution of a fund realized from a sale of real estate. The Court in its opinion stated the case as follows: The decision of this case depends upon the construction of a clause of the will of L. T. Follansbee, who died in this District, February n, 1893. The testator was a widower, and died childless.

Hearing on an appeal by the defendant from a judgment, under the 73d rule in action on the common counts, and on an appeal by the same party from an order overruling a motion to vacate such judgment.

<p>Hearing on an appeal by the defendant from a judgment on verdict in an action to recover damages for personal injuries.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is a suit for damages for personal injuries sustained by the appellee, John H. Wright, plaintiff in the court below, for whom there was a judgment in that court.</p> <p>On the evening of November 8, 1892, which was the day of the Presidential election in that year, a large crowd of persons was assembled on Pennsylvania avenue, in the city of Washington, in the neighborhood of Tenth and Eleventh streets, where were located the offices of two newspapers, the “ Washington Post ” and the “ Evening Star,” in front of which, upon sheets of canvas hung across portions ot these streets, bulletins were displayed by means of magic lanterns to give the result of the election, as the news came in by telegraph from the various parts of the country. Sometime after dark on that evening, and about six or seven o’clock, for the time is not very definitely fixed by the testimony, the plaintiff came out of a saloon on the west side of Tenth street, south of Pennsylvania avenue, and proceeded northward across the avenue to see the bulletins in front of the Post building on the corner of Tenth and D streets. As he arrived near the southernmost track of the railroad line on the avenue, he saw a train pass going towards the east; and then, according to his own statement, he stepped upon the track, and standing inside the rails, stopped to read the bulletins in front of him.</p> <p>According to the statement of some of the witnesses, he had not gone upon the track inside the rails, but was standing so near to it that he could be touched by a car passing upon the track. At all events, as he was standing upon the track or in dangerous proximity to it, he was struck and thrown down by another train of the cable cars, also going towards the east; and the wheels passed over one of his legs, severely injuring it and necessitating amputation.</p> <p>The crowd was quite large at the time and place of the accident. Some of the witnesses stated that it was so dense that it opened to let the trains pass, and immediately closed in again into a dense mass behind them. Others testified that it was more sparse towards the south side of the avenue.</p> <p>The claim of the plaintiff is that his injury was due to the negligence or carelessness of the defendant’s employees in moving their train with unnecessary and improper rapidity through the crowd, and in failing to give due notice of its approach by sounding the gong or giving some other warning. And'there was testimony introduced at the trial on behalf of the plaintiff to show.that no bell or gong was sounded, and that the train was moving rapidly — although it was not claimed or sought to be shown that it was moving more rapidly than was allowed or authorized by law and the regulations in force in relation to the speed of trains on street railroads. On behalf of the defendant it was sought to be shown by testimony at the trial that the train was not moving rapidly ; that the gong had been sounded all the way from Eleventh street to Tenth, and that all proper precautions had been taken to guard against accident. But the main defence was the alleged contributory negligence of the plaintiff himself.</p> <p>During the course of the trial in the court below, some exceptions were taken on behalf of the defendant to the action of the court in the allowance of some testimony on behalf of the plaintiff; but the exceptions are unimportant, and we do not understand that they are greatly, if at all, insisted upon by the appellant.</p> <p>At the close of the testimony, the counsel for the defendant submitted a motion for a peremptory instruction to the jury to return a verdict for the defendant, which motion was denied. A similar motion had been made at the close of the plaintiffs testimony, and refused ; and to such refusal of the court an exception had been taken. But, of course, this exception was abandoned by the action of the defendant in proceeding to offer testimony on its own behalf. Some remarks, however, which were made at that time by the presiding justice, in which he stated what he understood to be the grounds of the motion and his reasons for its refusal, were subsequently sought, at the conclusion of the trial, and after the final charge by the court to the jury and after all the instructions requested had been passed upon, to be made the subject of exception ; and exception to them was then and there noted. Whether this exception was taken in time and can be considered by us, it is not perhaps important for us to determine in this case.</p> <p>After the refusal of the defendant’s motion, made at the conclusion of all the testimony, for a peremptory instruction to the jury to return a verdict for the defendant, counsel for the defendant submitted seven specific prayers for instructions, three of which were given and four refused ; and exception was duly taken to the refusal. No instructions were requested on behalf of the plaintiff. But the court charged the jury of its own motion; and to eleven specified portions of the charge exceptions were duly reserved by the defendant.</p> <p>The verdict of the jury was for the plaintiff in the sum of $5,000; and from the judgment thereon the defendant has appealed.</p>

<p>Hearing on appeal by the defendant from a judgment on verdict in an action of assumpsit.</p> <p>The Court in its opinion stated the case as follows :</p> <p>This is an action of assumpsit brought upon 3. joint simple contract by John S. Belt, against George C. W. Magruder and Ellenore A. H. Magruder, husband and wife. The declaration contains two counts. By the first of these it is alleged that the wife was possessed oí certain real estate, situate in the District of Columbia, and they, the said defendants (husband and wife), “ to wit, on the 27th day of March, 1890, agreed with the plaintiff to pay him a commission of five per cent, upon the purchase price, if he, the said plaintiff, would find a purchaser or purchasers for said property, at the price and sum of seventy-five thousand dollars, the terms of sale to be part cash, and the balance payable at such time and in such manner as might be agreed upon between the defendant Ellenore (the wife) and the purchaser or purchasers; and the plaintiff says that, in consideration of the promises, and relying thereon, he did, before the bringing of this suit, find and procure a purchaser for said property, &c., and he further says that the defendants, though often requested so to do, have wholly failed and refused to pay him his commission for procuring the purchaser for said property.” The second count is for money payable by the defendants to the plaintiff, for work and labor done by the plaintiff for the defendants, at their request, in respect of the separate estate of the defendant Ellenore, the wife of the defendant George Magruder; and for money had and received by the defendants to the use of the plaintiff; and for money earned as commission by the plaintiff in finding a purchaser for certain real estate, being the separate estate of the defendant Ellenore, at the request of the defendants.</p> <p>The defendants pleaded jointly five pleas : ist. That they did not agree as alleged; 2nd. That they were not indebted as alleged; 3d. That the plaintiff did not render services as alleged; 4th. Set off to the extent of $1,500; and 5th.. Payment.</p> <p>To these pleas the plaintiff joined issue, and trial was had by jury ; and the finding was for the plaintiff as against one of the defendants only.</p> <p>The jury by their verdict found for the plaintiff as against the wife alone, and made no finding either for or against the other defendant, the husband. He was simply ignored and dropped out of the case by the verdict of the jury.</p> <p>There was a motion in arrest of judgment, for various reasons assigned, but that motion was overruled; and the court rendered judgment upon the verdict, whereby it was adjudged that the plaintiff recover against the defendant Ellenore Magruder the sum of $2,250, with interest, being the money payable by her to plaintiff by reason of the premises, together with costs, and that the plaintiff have execution thereof against the separate estate of the said defendant Ellenore.</p>

Hearing on an appeal by the plaintiff from a judgment for the defendants in the trial by the court of an issue raised by a plea of mil tiel record to a sci. fa. on a judgment.

Hearing on appeals from a decree adjusting the claims of lienors in a suit to enforce mechanics’ liens. The Court in its opinion stated the case as follows: These are several and separate appeals from a decree of the Supreme Court of the District of Columbia in a suit in equity instituted to enforce certain claims of mechanics’ liens.

<p>Hearing on an appeal by the defendant from a judgment on verdict in an action to recover damages for a breach ot a contract not to engage in a certain business within a prescribed territory.</p> <p>The Court in its opinion stated the case as follows :</p> <p>This is a suit at law instituted in the Supreme Court ot the District of Columbia to recover damages for an alleged breach of a contract, not to enter into a certain business within a certain radius in the city of Washington.</p> <p>On January 30, 1890, and for some years prior thereto, the appellant, Rufus K. Helphenstine, was engaged in the drug business, conducting a drug store for that purpose at the corner of Fourteenth street and Vermont avenue, known as “The Portland Drugstore.” On the day mentioned he sold the stock of goods in the store and the business to the appellees, William C. Downey and Frederick S. Smith, for the sum of $14,000, part in cash, and part in promissory notes secured by deed of trust upon the stock and fixtures in the store. There were four notes, due respectively in one, two, three and four years from the date of sale. In the contract and as part of the consideration for it, there was an agreement on the part of the appellant, that for the period of five years he would neither directly nor indirectly engage in the drug business in the city of Washington, D. C., within a radius of ten squares of the Portland drug store, without first obtaining the written consent of the appellees.</p> <p>In or about the month of December, 1891, a drug store was opened in the Cochran Hotel, on the corner of Fourteenth and K streets, which was within two blocks of the Portland drug store, under the sign of “ Helphenstine & Cluss,” without any indication as to the identity of the Helphenstine of the firm. Cluss, it seems, had been a clerk in the Portland store, in the service first of the appellant, and afterwards and up to about the time of the opening of the new store, in the service of the appellees, and a young man wholly without means. The appellant, it was conceded, was concerned in the opening of the new store ; but he claimed that the Helphenstine of the firm was his minor son, Edgar Helphenstine, then about nineteen years of age, and that his only interest was to set up the young men in business. He admitted that he lent them all the money required for the opening of the establishment; but stated that he took notes therefor and a deed of trust to secure them upon the stock and fixtures of the store.</p> <p>The appellees considered that the new store belonged to the appellant, and that he had established it for his own benefit, in violation of his express contract with the appellees. Thereupon, on April 13, 1892, they instituted the present suit to recover damages from him for such violation of the contract and for the loss of patronage claimed by them to have been occasioned by it.</p> <p>Their declaration contained four counts, in which their cause of action was set forth with some variation. In the first it was not alleged that the defendant’s engaging in the business in the new store was without the consent of the appellees ; and in the third and fourth counts there was an allegation of the loss of a large number of customers, stated under a videlicet to amount to one hundred. The pleas interposed by the defendant amounted to the general issue.</p> <p>At the trial there was testimony on the part of the plaintiffs to show that the defendant had solicited the lease of the premises, wherein the new store was established, for himself and in his own name; that he had directed the workmen in fixing up the place, had ordered the gas fixtures, directed the plumbing, given the directions for the purchase of the medicines, and practically selected the whole outfit of the establishment; that he assisted at the store and gave directions there in regard to sales ; that the books of the store were kept at his house; that his son had no means of his own; that there was no change in the management of the business or in the settlement of accounts in consequence of the death of Cluss, which occurred in October, 1894, &c., and there was also testimony tending to show loss of patronage to the Portland store by the use of the name of Helphenstine in the new establishment and the diversion to that establishment of some of the business of the Portland store. In this connection the names were specified of several persons, hotels and boarding-houses, former customers of the Portland store, whose dealings therewith had ceased or had been greatly diminished upon the opening of the new store in the Cochran Hotel.</p> <p>The defendant, in his testimony, conceded that he had advanced the money to establish and fit up the new store ; but stated that he took notes and a deed of trust therefor, which, however, had never been paid. And the purport of the evidence on his behalf was to show that his whole interest in the premises was his natural desire to set up his son and his young friend in business, and that his course of action was entirely in accordance with this theory.</p> <p>In the course of the testimony on behalf of the plaintiffs it was sought to be shown by the plaintiffs themselves, that, at the time of the sale of the Portland store to them by the appellant, the latter estimated the value of the stock in that store at $8,000 — the evident intention being thereby to show that the residue of the purchase price of $14,000, that is about $6,000, represented, according to the understanding and agreement of the parties, the value of the patronage or good will of the business, for the protection and assurance of which to the appellees the covenant of the appellant had been made that he would not again engage in the drug business under the limitation specified in the contract. To this testimony objection was made on the ground that no fraud had been charged in the matter of the price fixed as the consideration to be paid by the appellees. But the testimony was admitted; and exception was noted by the defendant. Upon two exceptions thus taken, two assignments of error, the first and second, are now based.</p> <p>At the conclusion of the whole testimony, there was a motion made by the defendant to direct a verdict in his favor. This was overruled; and upon the ruling of the court in that regard the appellant has based his third assignment of error.</p> <p>Counsel for the defendant then submitted nine prayers for instructions to the jury, of which four were given and five refused. Of the five that were refused, only two are here made the subject of assignment of error, and the others must, therefore, be regarded as having been abandoned. The two, which are brought here for consideration and upon which the fourth and fifth assignments of error are founded, are as follows :</p> <p>“ 8. Before the jury can assess damages on account of the loss of customers, they must be satisfied from the evidence what customers were lost, and that such loss was due to the violation of the contract by the defendant, and proximately, at least, the amount of loss sustained by the plaintiffs on that account.</p> <p>“ 9. If the jury find from the evidence that the plaintiffs have failed and refused to keep and perform their part of the contract with the defendant, in whole or in part, they are not entitled to recover in this action.”</p> <p>The court then charged the jury of his own motion; but no exception was taken to any part of the charge.</p> <p>The jury rendered a verdict for the plaintiffs in the sum of $5,000; and from the judgment thereon the defendant appealed.</p>

<p>Hearing on an appeal from an order of the Orphans’ Court adjudging the right of the appellee to have issues framed to determine the validity of a will, and framing and transmitting such issues for jury trial.</p> <p>The Court in its opinion stated the case as follows :</p> <p>On March 7, 1893, one Annie E. Northcutt, otherwise known as Estella Horton, and also, it seems, as Kate Davis, and by various other names that indicated an irregular and unfortunate life, but whose original name was Kate or Catherine McGrane, departed this life in the city of Washington, possessed of a considerable estate, both real and personal, and leaving what purported to be a last will and testament, dated on February 26, 1892, whereby she bequeathed her personalty to her sister, the appellant, Mira Dugan, and her daughters, residents of Brooklyn in the State of New York, and devised her real estate to the appellant, Joseph H. McCann, with whom the deceased seems to have lived in her later years ;■ and Mira Dugan and Joseph H. McCann were named as executors.</p> <p>Mrs. Dugan filed her petition in the Orphans’ Court branch of the Supreme Court of the District of Columbia, in which she prayed for the probate of the will, renounced the executorship and asked for letters of administration with the will annexed to be granted to Messrs. Joseph Shilling-ton and Edwin Forrest, members of the bar. In the petition the next of kin of the deceased were stated to be her two brothers, Lawrence McGrane, of Providence, in the State of Rhode Island, and John- McGrane, of Brooklyn, in the State of New York, her sister, the petitioner, and a half-sister, Margaret Kelly, residing in Ireland. McCann seems to have taken no active part in the proceedings either at this time or at any other time, so far as is shown by the record now before us.</p> <p>An order for publication in the usual form, notifying all persons in interest to appear and show cause against the probate, if any they had, was made by the justice of the Supreme Court of the District of Columbia then holding the special term of that court for Orphans’ Court business, which was directed to be published, and appears in fact to have been published for three successive weeks in_ “ The Washington Law Reporter.” Presumably in response to this notice, John McGrane, one of the brothers of the deceased and of Mrs. Dugan, appeared and filed a caveat to the will, and asked for issues thereon to be formulated and transmitted for trial by a jury. And about the same time, or soon afterwards, another document was deposited in the office of the Register of Wills for the District of Columbia, purporting to be a last will and testament executed by Kate Davis at Brooklyn, in the State of New York, on September 21, 1892, which was claimed to have been made by the same decedent under one of the numerous names which she bore. By this writing, which was attested only by two witnesses, the testatrix named in it purported to revoke all previous wills made by her, and to give two-thirds of her estate to her brother, Lawrence McGrane, and one-third to her brother, John McGrane. No executors are named in it, and there are some indications of incompleteness in the document.</p> <p>We infer that application was also made by some one for the probate of this will; and that notice of the application, by way of the usual order of publication, was directed to be given not only, however, in the “ Washington Law Reporter,” but also in a newspaper published in the city of New York. But this does not directly appear in the record now before us; nor ■ does it appear what further action, if any, was had with reference to this second alleged will and the application for its probate.</p> <p>In pursuance of the caveat to the will of February 26, 1892, filed by John McGrane, issues were formulated, seven in number, and transmitted to the Circuit Court branch of the Supreme Court of the District of Columbia for trial by a jury, the caveator, John McGrane, being made the plaintiff, and the caveatees, Joseph H. McCann and Mira Dugan, being made the defendants. When they came on for trial, it seems that the counsel for the caveator, McGrane, announced that he would offer evidence only under the seventh issue, which was whether the will of February 26, 1892, had been revoked; and in proof of revocation, he offered in evidence the Kate Davis will of September 21, 1892. The jury found in favor of the caveatees, thereby discrediting the alleged will of September 21, 1892. The seventh issue, therefore, was answered in the negative; and to the other issues, in the absence of all testimony, the presiding justice directed answers to be rendered in favor of the caveatees. The issues and the answers then were as follows:</p> <p>1st. Was the paper-writing purporting to be the last will and testament of Annie E. Northcutt, deceased, bearing date February 26, 1892, executed and attested in due form of law? Answer: Yes.</p> <p>2d. Were the contents of said paper-writing purporting to be the last will and testament of said Annie E. Northcutt, deceased, understood by or known to her at or before the alleged execution thereof? Answer: Yes.</p> <p>3d. Was the said Annie E. Northcutt, at the time of execution of said paper-writing, of sound and disposing mind, and capable of executing a valid deed or contract ? Answer: Yes.</p> <p>4th. Was the execution of said paper-writing procured by undue influence exercised and practiced upon said Annie E. Northcutt by Mira Dugan or by Joseph H. McCann, or by any other person or persons ? Answer : No.</p> <p>5th. Was the execution of said paper-writing procured by fraud exercised and practiced upon said Annie E. Northcutt by the persons mentioned in the fourth issue or by either of them ? Answer: No.</p> <p>6th. Was the execution of said paper-writing the free and voluntary act of said Annie E. Northcutt? Answer : Yes.</p> <p>7th. Was the said paper-writing, subsequent to its execution, altered or revoked by said Annie E. Northcutt, either in whole or in part; and if in part only, what part or parts were so by her altered or revoked ? Answer: Not revoked in any way or part whatsoever.</p> <p>These answers were certified to the Orphans’ Court on or about June 30, 1893. What action was then had upon them, if any, does not appear from the present record; nor does it appear that any order or judgment was ever entered upon them.</p> <p>The record next discloses to us a petition filed on August 25, 1893, by George H. Northcutt, the appellee in the proceedings now before us, wherein he alleged that he was the only child and sole heir at law of the deceased, Annie E. Nothcutt, and asked leave to file his caveat against the probate of the will of February 26, 1892, substantially upon the same grounds as had been alleged by John McGrane; and he prayed that issues thereon should be sent for trial by a jury. To this request objection was made on behalf of Mira Dugan and Joseph H. McCann, on the gi-ound that the same issues now requested had been already tried and determined by a jury upon the caveat of John McGrane.</p> <p>While the parties were contesting this point, it appears that in some way the question of the legitimacy of the petitioner Northcutt was raised, and that it was urged that on account of his alleged illegitimacy he was not entitled to have issues framed on his behalf in regard to the validity of the will. Thereupon, two issues upon this question of the legitimacy of the petitioner Northcutt were framed by the court and transmitted for trial by a jury. These issues were the following:</p> <p>1st. Is George H. Northcutt, the caveator herein, the son of the said Annie E. Northcutt, born in wedlock ?</p> <p>2d. If the said George H. Northcutt, the caveator, was the child of the said Annie E. Northcutt, born out of wedlock, did his father afterwards intermarry with the said Annie and did his said father acknowledge the said George H. Northcutt as his son ?</p> <p>It is the record of the trial of these two issuses that constitutes the greater part of the record before us ; and it is to the questions of law arising upon that trial that most of the arguments before us has been addressed.</p> <p>To the first issue the jury returned their answer, yes ; to the second, no; and thereby; if their verdict stands, established the legitimacy of the caveator, George H. Northcutt. These answers were certified to the Orphans’ Court about April 22, 1895.</p> <p>Next, we find that, on June 22, 1895, the justice then holding the Orphans’ Court made an order, wherein after reciting that the jury by their verdict had found that the said George H. Northcutt was the son of Annie E. Northcutt, born in wedlock, he adjudged that said Northcutt had the right to have issues sent from that court to ascertain the validity of the alleged will of February 26, 1892, and accordingly adjudged and ordered that six certain issues should be transmitted to the Circuit Court for trial by a jury. These issues were as" follows :</p> <p>1st. Was the aforesaid paper-writing purporting to be the last will and testament of Annie E. Northcutt executed and attested by her according to law ?</p> <p>2d. At the time of the alleged execution and acknowledgment of said paper-writing, if the same was so executed and attested, was said deceased of sound and disposing mind and capable of executing a valid deed or contract ?</p> <p>3d. If said paper-writing was so-executed by said Annie E. Northcutt, deceased, were its contents known to the deceased at the time of its alleged execution ?</p> <p>4th. Was the said paper-writing, if it was executed by the deceased, executed by her under undue influence arising from the importunities or other undue influence of Mira Dugan, Joseph McCann, or both of them, or some other person or persons ?</p> <p>5 th. Was said paper-writing, if executed by said Annie E. Northcutt, deceased, executed under threats, menace, compulsion or under duress imposed upon deceased by Joseph McCann, Mira Dugan, or either of them, or by any other person or persons, or while said Joseph McCann, Mira Dugan, or either of them, or some other person or persons held said deceased in confinement or otherwise restricted and restrained her of her liberty, and thereby compelled her to execute said paper-writing ?</p> <p>6th. Was the said paper-writing procured by the fraud, misrepresentation, or artifice of Joseph H. McCann or Mira Dugan, or either of them, or of any other person ?</p> <p>These issues, it will be noted, are substantially the same as those which had been transmitted on behalf of John Mc-Grane, with the exception that among the latter there was a seventh one on the question of revocation.</p> <p>From this order an appeal was taken on behalf of Mira Dugan and Joseph McCann; and it is this appeal that is now before us. We find no other appeal in the record.</p>

Hearing on an appeal by the defendant from a judgment on verdict in an action to recover damages for personal injuries. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the defendant from a judgment on verdict in an action against a carrier for hire to recover the value of horses killed in transportation. The facts are sufficiently stated in the opinion.

<p>Hearing on an appeal from a decree confirming a sale of lands of a lunatic and requiring appellant as purchaser to comply with the terms of sale.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by the defendant from a decree in a suit to enforce an agreement to charge the equitable separate estate of a married woman with a lien for professional services.</p> <p>The Court in its opinion stated the case as follows:</p> <p>The bill in this case was filed by the appellees, William A. Cook and Charles C. Cole, against the appellant, Anna J. Merchant, who was sued in her own right as a married woman owning real property, as her sole and separate estate, and upon an alleged contract made by her with the complainants in relation to such estate; and also against certain other defendants named in the bill. The object of the suit, as set forth in the bill, was to enforce a contract made by the defendant Anna J. Merchant, then and still a married woman, with the plaintiffs for professional services rendered as attorneys at law, in conducting a certain proceeding instituted for her, in respect of her separate property, to final and successful termination; and for which services, as the plaintiffs claim, they have a lien or charge upon the property, by an express oral agreement of the defendant Anna J. Merchant; and for the payment and discharge of 'which claim and lien the plaintiffs pray that the property be sold under decree of the court.</p> <p>The bill alleges that in November, 1867, there was made a deed of trust by Alexander R. Shepherd to Thomas M. Shepherd, trustee, for a certain parcel or sublot of ground, in square No. 342, in the city of Washington, for the sole use and benefit of the defendant, Anna J. Merchant, and which deed was duly recorded, and a copy whereof is made an exhibit with the bill. It is also alleged that the property conveyed by the deed just mentioned was and is subject to a deed of trust or mortgage, originally to secure the payment of $4,000, of which sum there is still due the sum of $3,500 for which a note is held by one or more of the defendants named in the bill.</p> <p>The bill also alleges and shows, that, in the year 1875, there were three other pieces or parcels of real estate, situate in the city of Washington, conveyed to the defendant, Anna J. Merchant, by certain persons named; but those deeds are not contained in the record before us, and it does not appear that they were made in trust, as in the case of the deed from Alex. R. Shepherd, first referred to.</p> <p>It is alleged in the bill, that, in October, 1881, the defendant, Anna J., and her husband, Silas Merchant, were, by the false and fraudulent representations of a certain John F. Cook, and his agents, constrained, under duress of threats of prosecution and imprisonment of Silas Merchant, the husband, to execute and deliver to Cook, deeds in fee-simple for the several parcels of real estate before mentioned, including that conveyed in trust by Alex. R. Shepherd; and that such deeds were placed upon record by Cook. It is then alleged, that the defendant, Anna J., with the knowledge and consent of her husband, and of the trustee named in the deed from Shepherd, employed the plaintiffs, “who were then lawyers, members of the bar of the District courts and of the Supreme Court of the United States, practicing therein as partners, to institute and prosecute the necessary suit or proceeding to have said deeds made by her and her husband, and her trustee, annulled and set aside, and to secure her in the possession, ownership, and enjoyment of said property; and at the time of such employment said Anna J. Merchant paid complainants a retainer of fifty dollars and no more, but then and there agreed and promised to pay them enough more in addition thereto to make a reasonable and fair compensation to complainants for their professional services in instituting and prosecuting such legal proceedings, and she then and there agreed that such compensation should be a charge tipon and paid out of her said separate estate, as soon as the prosecution of said legal proceedings resulted in annulling said deeds to Cook, so that money coidd be raised thereon by sale or mortgage of a pari thereof.” And it is further alleged, that, in pursuance of the agreement, proceedings were taken, and prosecuted to final decree, which decree was passed in November, 1892, declaring the deeds to Cook null and void. It is also alleged, that a reasonable compensation for the services rendered by the plaintiffs would be the sum of $2,500, less the $50 paid as retainer.</p> <p>It is prayed by the bill, among other things, that the premises considered, the court will decree a sale of said real estate, or so much thereof as may be necessary for the payment of plaintiffs’ demand, and the prior liens on said real estate, and out of the proceeds of sale, after payment of prior liens, that the plaintiffs’ demand may be paid and satisfied ; and for further relief.</p> <p>The deed of trust from Alex. R. Shepherd, dated in November, 1867, is a conveyance of the legal estate to Thomas M. Shepherd, trustee, his heirs and assigns forever, “ In trust nevertheless for the uses and purposes following, and for no other use, trust or purpose whatever, that is to say: In trust for the sole, separate, and exclusive use of Anna J. Merchant, free from all control and ownership by her present or any future husband, and free and clear of and from all liability for his or their debts, contracts, &c., to permit the said Anna J. Merchant to use and occupy the said parcel of ground and premises, and the rents, &c., to take, have and apply to and for her sole use and benefit. And upon this further' trust, the said piece or parcel of ground and premises, or any part thereof, to sell, dispose of and convey absolutely in fee-simple, or in trust by way of mortgage, to such person or persons, and for such uses and purposes as she, the said Anna J. Merchant, shall and may, at any time hereafter, request and direct in writing, witnessed by two witnesses, her present or any future coverture notwithstanding. And upon the further trust, that upon and after the decease of the said Anna J. Merchant, without having disposed of the said piece or parcel of ground, the said trustee to hold the same for the benefit of all the children of the said Anna J. Merchant who are now living, or who may be by her present husband upon her begotten, to be disposed of either absolutely, or in trust, as they or their legally appointed guardian may direct, he or they joining with said trustee in such conveyance. And upon this further trust, in the event of the death of the said Anna J. Merchant, and all of her said children, without having absolutely disposed of the said piece or parcel of ground, the said trustee shall convey the said piece or parcel of ground and premises, or so much thereof, and such interest therein, as may then remain undisposed of, unto Silas Merchant, his heirs or assigns, at his or their cost and expense.”</p> <p>The bill does not, nor does the proof, disclose .the fact, whether there be children of Mrs. Merchant living or not, nor has the husband been made a party to the bill.</p> <p>The defendant, now appellant, Anna J. Merchant, demurred to the bill in its entirety, but the court overruled the demurrer, and required the defendant “ to answer said bill, or answer and demur specially to such parts of said bill as she might be advised.”</p> <p>The defendant, Anna J., then demurred to so much of the bill as sought to charge and make liable to the claim of the plaintiffs the pieces of property that were conveyed to the defendant by deeds in 1875 ; and answered the bill so far as it sought to charge the property conveyed in trust for Mrs. Merchant, by the deed from Alex. R. Shepherd, of November, 1867. This demurrer to part of the bill was sustained by the court; and the order sustaining the demurrer and dismissing that part of the bill that related to the property that was conveyed to the defendant in 1875, had the effect of relegating or striking from the case all the property sought to be charged, except that which was conveyed in trust by the deed from Alex. R. Shepherd in 1867. This order, sustaining the demurrer and dismissing the bill in part, is not presented for review on this appeal; and it left remaining the question whether the property conveyed in trust by Shepherd, for the use and benefit of Mrs. Merchant, could, under the allegations and facts of the case, be made liable for the claim of the plaintiffs ?</p> <p>In the answer of the defendant, Mrs. Merchant, she utterly denies the making of the agreement or contract set forth in the bill; and she also denies that the property conveyed in trust for her sole and separate use is liable-for the claim set up by the plaintiffs. She also denies that, for the services rendered, the plaintiffs are entitled to claim the sum of $2,500. And, by an amendment of her answer, she pleads and relies specially upon the Statute of Frauds, 29 Charles 2, ch. 3, in force in this District.</p> <p>Testimony was taken, and it is very conflicting, upon the issue whether the contract was made as alleged in the bill. The plaintiffs swear positively to the terms of the contract as alleged; but, on the other hand, that testimony is explicitly denied by the defendant, and witnesses examined on her behalf. There can be no doubt, however, that valuable professional services were rendered the defendant by the plaintiffs, in rescuing her property from the operation of the fraudulent deeds to Cook. But, under the law, if the requisite formalities and ceremonies to make the contract binding as against the property of the defendant, were omitted or not conformed to, the court is powerless to furnish redress.</p> <p>To prove the contract as alleged, both the plaintiffs, C. C. Cole and Colonel Cook, were examined as witnesses. In the testimony of the former, he says : “ Mrs. Merchant always assured me that if we would press the case along and succeed in setting the deeds aside, and she felt we would, there would be no difficulty in our having a reasonable fee promptly on the favorable termination of the suit. I remember particularly on one occasion in her parlor on R street, in this city, I have forgotten the number of the house, having such a conversation with her, and that she said to me that she had some interests with her brother, Governor Shepherd, upon which she hoped to realize money before a great while, and if, and when she did, she would pay us something on account of the fee out of that, but that, if she did not get that, our fee was safe out of the property when the suit ended. I remember that particular conversation more distinctly than any other. I mean that she said we should be paid out of the property involved in the suit, if she was unable to pay us before the suit terminated. I remember also very distinctly a conversation with Mrs. Merchant at which Colonel Cook was present, in the office he and I then occupied in common at the corner of Sixth and D streets, in which she said substantially the same thing, only I don’t remember she referred to any interest she had with her brother at that time. In pursuance of that understanding, and on the faith of it, we prosecuted the suit to a successful termination.”</p> <p>The remainder of the testimony of this witness relates to the nature and value of the services rendered.</p> <p>The testimony of Colonel Cook, the other plaintiff, is of substantially the some import of that of Mr. Cole, though, perhaps, not so explicit or direct to the fact of an agreement to charge the separate estate of Mrs. Merchant. There is no claim or pretence that any contract that was ever made upon the subject was ever reduced to writing and signed by the party to be charged therewith. The entire understanding rested in mere oral conversations. And all the evidence offered on the part of the plaintiffs to establish the contract as alleged in the bill, has been, in emphatic terms, denied by the defendant and her husband in their testimony.</p>

Hearing on an appeal by the complainant from a decree sustaining a demurrer to and dismissing a bill against the District of Columbia and Commissioners of the District of Columbia to enjoin the sale of certain real estate for nonpayment of arrears of taxes with penalties and costs added.

Hearing on an appeal by the complainant from a decree dismissing a bill for an accounting and the cancellation of certain deeds as fraudulent.

<p>Hearing on an appeal by the complainants from a decree dismissing a bill for án accounting, and to set aside an alleged fraudulent conveyance of real estate.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is the second in a series of cases that were argued and submitted together with No. 465 — Mary C. Pryor v. Edwin A. McIntire and Martha McIntire, ante, p. 417.</p> <p>The original bill was filed February 7, 1891, by complainant, as the sole child and heir at law of Barbara Brown, who died, intestate, February 21, 1883. The defendants to the original bill were Edwin A. Mclntire, Emma Taylor and Richard Brouner. No service was had upon the last two and they are no longer parties to the case, for reasons hereafter made apparent.</p> <p>On the same day that Edwin A. Mclntire answered the bill, April 7, 1891, two deeds were filed for record. One, dated April 25, 1881, was a deed from Emma Taylor and Barbara Brown to Martha Mclntire, while the other, dated September 6,1884, was a deed from Emma Taylor to Martha Mclntire. Both deeds purported to convey lot 36 in L. Simmermacher’s subdivision of original lot 5 in square 1002, city of Washington, known as 1216 I street, N. E., which is the lot in controversy. Martha Mclntire was then made a party defendant by an amended bill.</p> <p>The bill alleges that said Barbara Brown executed a deed of trust on June 8, 1880, whereby she conveyed the premises to Edwin A. Mclntire in trust to secure a note for $500, payable to the order of Richard Brouner. That said Mclntire pretended to sell the premises in April, 1881, under said trust deed, and made a conveyance thereof to a fictitious person called Emma Taylor. That said pretended sale and conveyance and the subsequent conveyances were made and procured by said Edwin A. Mclntire for the purpose of defrauding the said Barbara Brown, who died in ignorance of the fraud perpetrated upon her. The bill prays that the said deeds be declared null and void, and that an account be taken of the amount that may be due upon the said note to Richard Brouner for the benefit of the owner thereof, and also of the rents and profits of said property received by the defendants. There is a prayer also for the execution of a release of said trust and for general relief.</p> <p>The answers denied the allegations of fraud, and charged regularity and good faith in the sale and conveyances thereunder, as well as knowledge, assent and ratification by deed of Barbara Brown.</p> <p>The bill was dismissed, along with No. 465, Pryor v. Mclntire, for the reasons therein given, and complainant has appealed.</p> <p>It appears that Barbara Brown was seized in fee of the • premises on June 8, 1880. On that day she borrowed $400, through Edwin A. Mclntire, and executed a note therefor, payable two years after date, to the order of Richard Brouner, with interest at 10 per cent, per annum, payable quarterly. She also conveyed the premises to Edwin A. Mclntire in trust to secure said note. The trust deed contained the usual provision for sale in case of default in the payment of instalments of interest.</p> <p>It is claimed by defendants that the money was furnished by Martha Mclntire, but that the note was taken in the name of Brouner, an employee of the office, in accordance with a custom of Mclntire and some other brokers, and assigned by him, “without recourse,” to Martha Mclntire. It is claimed that Barbara Brown did not pay the interest as stipulated, and that Martha Mclntire demanded a sale by the trustee. He says that he advertised the same as required in a newspaper and made the sale at auction on the premises ; that Emma Taylor bought the property for $400, and a deed was made to her April 1, 1881.</p> <p>Defendants claim that Emma Taylor assigned her bid to Martha Mclntire, and a deed is produced purporting to have been executed by Barbara Brown and Emma Taylor, jointly, to Martha Mclntire, on April 25, 1881, upon a consideration of $100. Another deed has been produced which bears date September 6, 1884, wherein Emma Taylor purports to convey the same property, along with some others, to Martha Mclntire upon a recited consideration of $ 1,800. These deeds were not filed for record until April 7, 1891, the day upon which defendant, Edwin A. Mclntire, filed his answer.</p>

<p>Hearing on an appeal by the complainant from a decree dismissing a bill for an accounting and the vacation of an alleged fraudulent sale and conveyance of real estate.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal by the complainants from a decree dismissing a bill for an accounting and for the setting aside of the sale and conveyance of certain real estate as fraudulent. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the complainant from a decree dismissing a bill for an accounting, etc. The facts are sufficiently stated in the opinion.

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

<p>Hearing on an appeal by the respondent from a judgment discharging the petitioner for a writ of habeas corpus from custody.</p> <p>The Court in its opinion stated the case as follows :</p> <p>This is an appeal from a judgment of the Supreme Court of the District of Columbia upon a writ of habeas corpus.</p> <p>The appellee, George A. Armes, is an officer of the army of the United States on the retired list,onwhichhewas placed, with the rank of captain, on September 15, 1883. On September 27, 1895, he addressed and caused to be delivered to Lieutenant-General John M. Schofield, then commanding the army of the United States, and at the same time acting as Secretary of War in the absence of Secretary Lamont, a letter of an offensive character, in which he called the attention of General Schofield, who was then about to be retired from active service, to various alleged persecutions by him of the writer, charging him with the manufacture of false testimony and various attempts to ruin and disgrace him (Armes), and demanding an apology before his retirement. The letter was delivered by Armes in person to a messenger in the War Department, who delivered it to General Schofield. The latter, as acting Secretary of War, deeming that a grave act of military insubordination and violation of military discipline had been committed in his presence, immediately ordered the arrest of Armes, and his confinement in close arrest at the Washington Barracks, which were under the command of the appellant, Colonel Hemy Whitney Closson, an officer of the United States Army. Armes was thereupon arrested, taken under guard from his residence in Washington, and confined in the barracks.</p> <p>On the next day, September, 28, 1895, a writ of habeas corpus was sued out before one of justices of the Supreme Court of the District of Columbia; and Colonel Closson immediately produced the prisoner in court. The justice before whom he was brought thereupon released Armes upon his own recognizance; and postponed the hearing of the case until October 5, 1895.</p> <p>Charges and specifications were preferred against Armes, the first charge being of “ conduct to the prejudice of good order and military discipline,” and the second of “ conduct unbecoming an officer and gentleman;” the specification under each charge being the writing of the letter to General Schofield, hereinbefore mentioned, and which was set forth verbatim. A copy of these charges and specifications was given to Colonel Closson for delivery to the appellee on October 2, 1895, before the amended return in this case was made, and this copy was duly forwarded to Armes. No further action, however, seems to have been taken by the military authorities.</p> <p>After argument, the justice of the Supreme Court of the District of Columbia before whom the hearing was had, discharged the appellee from custody ; and from the order of discharge this present appeal has been duly prosecuted.</p>

Hearing on an appeal by the plaintiff from a judgment on a verdict directed by the court in an action of trespass on the case.

Hearing on an appeal by the petitioners from a judgment denying an application for a writ of prohibition to one of the judges of the police court in the District of Columbia.

<p>Hearing on an appeal by the defendants from a judgment on a verdict in an action to recover damages for personal injuries.</p> <p>Statement of the Case.</p> <p>This was an action brought by Fannie K. Dashiell against the Washington and Georgetown Railroad Company and the Rock Creek Railway Company, to recover damages for injuries alleged to have been received in a collision of two trains of those companies at the intersection of Fourteenth and U streets, northwest, in the city of Washington, on April 16, 1893, while she was a passenger on the train of the former company. The evidence showed that the Rock Creek Railway Company, which operated a street railway line running east and west along U street, had prior to that date run no cars east of Fourteenth street, but on that date commenced to run trains as far east as Seventh street. The Washington and Georgetown Railroad Company operated a street railway line running north and south along Fourteenth street.</p> <p>At the trial, the following instructions were requested on behalf of the defendant, the Washington and Georgetown Railroad Company, but the court refused to grant the same, and the said defendant excepted:</p> <p>“3. If the jury shall be satisfied from the evidence that the cars of the defendant, The Rock Creek Railroad Company, had been running to and from 14th street from the west and had not been regularly crossing 14th street prior to that time [April 16, 1893], and that the gripman running the train of Washington and Georgetown Railroad Company had not been notified that said Rock Creek Company would, on that day, regularly run its cars east over 14th street at its intersection with U street, and if they shall be further satisfied from the evidence that just before the collision complained of the gripman of the Washington and Georgetown Railroad Company approached U street with his train going north and a car of the Rock Creek Railroad Company was east of and near to 14th street going west, and that a flagman or conductor of said Rock Creek Company was beckoning to the motorman of the motor car to prooceed across 14th street, and that he did so, and that the gripman of the Washington and Georgetown Railroad Company slacked the speed of his train to allow time enough for the said car to cross along U street over 14th street, and that said grip-man then started to cross U street in a reasonably careful manner, and that when he had got partially across his grip-car was struck by a car of the defendant, The Rock Creek Railroad Company going east and running at a rapid rate of speed, and that by such collision the plaintiff, who was on said grip-car, was injured, the verdict must be in favor of the defendant, the Washington and Georgetown Railroad Company.</p> <p>“4. If the jury shall find that the car of the Rock Creek Railway Company, in approaching 14th street and crossing the same, was propelled at a greater speed than 9 miles an hour, and but for the increase of speed over 9 miles an hour the collision would not have happened, then the company was negligent in law.”</p> <p>Exceptions was also noted by the said defendant to the following paragraphs of the charge of the court below :</p> <p>1. “ What is reasonable care and diligence must always be determined and is always determined, when determined properly, by the particular surroundings and circumstances attending each case; so that in this case you should be advised and should consider the evidence with that principle of law in view, that the danger there was of collision of trains passing upon each of these roads increased the care and diligence which should be exercised by the servants of each company in running its trains at this particular point, and the care and diligence with which they should look out for danger and by which they should avoid any accident or collision. It was the duty of the parties in charge of the cars of each of these defendants upon approaching that place to keep a sharp lookout for trains upon the other road, and not to attempt to cross until satisfied that they could do so in safety.”</p> <p>2. “ Now, it is said on behalf of the gripman of the Washington and Georgetown Railroad Company that he did not see the train approaching on the U-street road, the eastbound train, until it was too late for him to stop his car so as to avoid the collision and injury. Notwithstanding that, if you believe that to be true, if you believe that to be the fact, that he did not as a matter of fact see the U-street train approaching in time to stop and avoid the collision, it is for you to still determine whether there is anything that appears in the evidence to excuse him for not having seen the approaching train on U street — whether, if he had used his eyes and kept a lookout such as the law requires of him in approaching a place of that character, he might have seen the U-street train in time to have stopped his car. If he could have done so and did not use his eyes and keep a lookout for approaching trains he was guilty of negligence for which his company would be liable.”</p> <p>3. “ It is said that there was an intervening train passing down 14th street, south-bound, and that that may have intervened between the gripman and the U-street train coming from the west going east so as to prevent him from seeing the U-street train sooner than he did. As to that the evidence is not all one way. If that fact is at all material (and it may be well for you to determine it), you are to determine whether the south-bound tain had not passed and did not pass the north-bound train upon which the plaintiff was, long enough before the U-street train approached so that the U-street train could have been seen as soon as it emerged from behind the buildings at the corner of U street. The testimony shows you at what distance from the crossing a person upon the 14th-street cars could have seen the approaching of the U-street car. If that was such a distance from the U-street crossing as that, .under the circumstances, you believe the gripman could have stopped his car before reaching the U-street crossing so as to avoid the collision with the U-street car, then the gripman should have stopped his train if he saw the train coming. If he did not see the train coming as soon as he might have seen it, and if you find he might have seen it had he been diligent in looking out for an approaching train in time to avert the accident and did not do it, then the I4th-street company will be chargeable with negligence because of the want of proper and reasonable care on the part of its agent who was then running and managing this train.”</p> <p>4. “ And I may say one thing more before I leave the I4th-street car. If a south-bound train stopped after it passed the U-street crossing or was in such a situation on the west track of the I4th-street road as to obscure the view of the gripman to the approach of the U-street car so that he could not see whether a train was approaching or not, it would have been his duty, necessarily, if he could not cross in safety, to have stopped his train until he could have ascertained. That would not have been, under the circumstances, the exercise of any extraordinary care or diligence, but only reasonable care and diligence; and so as to the U-street road: The motorman upon that train, before he approached this crossing, should have known that he could cross in safety. Either he should have stopped to have an examination made or he should have such other assurance as reasonable conduct and reasonable rules would require of him under such circumstances in order that he might pass over this place in safety without injury to anybody.”</p> <p>The further material facts will be found stated in the opinion of the court.</p>

<p>Hearing on an appeal by the Secretary of the Treasury from an order directing the issue of a peremptory writ of mandamus requiring him to examine and consider certain accounts.</p> <p>The Court in its opinion stated the case as follows :</p> <p>This is a suit for a writ of mandamus to the Secretary of the Treasury of the United States to require him to examine and consider three several accounts for services claimed to have been rendered in certain internal revenue cases by the relator, Charles C. Waters, while acting as United States District Attorney for the eastern district of the State of Arkansas, which position he held from April 12, 1889, to March 27, 1893.</p> <p>In his petition for the writ, filed in the Supreme Court of the District of Columbia, on April 4, 1895, the relator states that, during the six months ending on June 30, 1890, the collector of internal revenue for his district, in pursuance of the duties imposed upon that officer by section 3164 of the Revised Statutes of the United States, had reported to him (the relator) certain alleged violations of the internal revenue laws of the United States by certain specified persons, forty-five in number, who had thereby subjected themselves to fines, penalties and forfeitures under the law ; that, acting under section 838 of the Revised Statutes, the relator, after inquiry and examination of the cases, had decided that the ends of public justice did not require that legal proceedings should be instituted against the persons named; that the relator so reported to the Commissioner of Internal Revenue, who concurred' in his decision ; that similar action had been taken with fifty-eight other cases reported by the collector to the relator during the six months ending December 31, 1890, and with thirty-two other cases reported during the six months ending June 30, 1891, with similar approval by the Commissioner of Internal Revenue; that, under section 771 of the Revised Statutes, it was the duty of the relator to prosecute in his district all persons charged with crimes and offences against the United States; that consequently the cases so as aforesaid reported to him came within the control and disposal of the court of the United States for the eastern district of Arkansas for final disposition ; and that, for the purpose of finally disposing of said cases, the relator, as district attorney, presented his three several accounts, aggregating $665, being a charge of $5 for each case, in open court, to the United States district judge, the Honorable John A. Williams, who, after reference of the accounts to the relator’s successor in office, and approval thereof by the latter, himself approved the accounts, and certified that the charges were reasonable and j ust. Claiming that, under the section 838 of the Revised Statutes which has been mentioned, he was entitled to the compensation so claimed for the services stated to have been rendered by him, the relator caused his accounts so approved to be presented to the Secretary of the Treasury for decision by the latter of the amount that should be paid to the relator for such services. To the request for payment the Secretaiy returned answer as follows :</p> <p>D. C.] Statement of the Case.</p> <p>“ In reply to your demand for payment of such sums as the Secretary shall deem to be just and reasonable, you are informed that these accounts are disallowed in conformity with the rulings of this Department begun by Secretary Bristow under the act of March 3, 1873 (7 Stat. 581), from which said section 838 was taken, followed by all his successors, and confirmed by Attorney-General Brewster March 2, 1855 (18 Opin. 126), and by Attorney-General Garland November 17, 1885 (Int. Rev. Record, vol. 31, 382), the disallowance in ‘ all such cases ’ being made chiefly on the ground that the jurisdiction of the Secretary of the Treasury, under said section 838, is based ‘ upon the certificate of the judge before whom such cases are tried or disposed ofit being held that if a case was not actually tried or disposed of before a judge — that is after having been brought before him by indictment or information — no judge could give the proper certificate. The certificates of Judge Williams presented with these accounts do not declare that the cases named therein were tried or disposed of by him, and it is obvious that he could not so certify in the face of Mr. Waters’ declaration that he decided, as authorized by said section 838, not to institute criminal proceedings.”</p> <p>Construing this answer of the Secretary as a refusal by the latter to decide what sum was a just and reasonable compensation to the relator for his services, upon the ground that he (the Secretary) had no jurisdiction so to decide, and that no judge could give a proper certificate upon cases not brought before him by indictment or information, the relator filed his petition in the court below for a writ of mandamus, as already stated, to require the Secretary to examine and consider the accounts of the relator and to determine, upon such examination and consideration thereof, what sum was a just and reasonable compensation for the services rendered.</p> <p>' A rule to show cause was issued. Subsequently the issue of the alternative writ and the return thereto were waived, and the case, after argument, was submitted to the court upon the foregoing facts as set forth in the relator’s petition. The court ordered and directed the peremptory writ of mandamus to issue in accordance with the prayer of the petition; and from this order an appeal has been taken on behalf of the Secretary of the Treasury.</p>

Hearing on an appeal by the plaintiff from a judgment on verdict in an action to recover damages for a nuisance. The facts are sufficiently stated in the opinion.

Hearing on an appeal from a decision of the Commissioner of Patents in an interference proceeding. The Court in its opinion stated the case as follows: This is an appeal from the decision of the Commissioner of Patents in an interference case. The issues of invention, on which the interference is based, are stated in the record to be the following: 1.

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

<p>Hearing on an appeal from a decree on a bill of inter-pleader to determine the rights of the parties to the proceeds of a judgment.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal by the plaintiff from a judgment sustaining a demurrer to a replication to a plea in abatement. The Court in its opinion stated the case as follows : This was an action of assumpsit brought by the appellant against the appellee. The declaration was filed March 22, 1889. The defendant below filed a plea in abatement May 7, 1889. The plaintiff below filed, on February 5, 1895, a replication, to which the defendant below demurred.