Volume 9 — Appeals, District of Columbia

Hearing on an appeal by plaintiff from a judgment on verdict in an action of covenant. The Court in its opinion stated the case as follows : This is the second appeal in this case. In the opinion rendered upon the former appeal, reported in 5 App. D. C. 114, the principal facts are stated, and therefore need not here be repeated.

<p>Hearing on an appeal by the plaintiff from a judgment in an action to recover damages for personal injuries, a verdict for the defendant having been directed by the court.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by the plaintiff from a judgment on a verdict directed by the court in an action to recover damages for a personal injury.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal by the plaintiff from a judgment on a verdict directed by the court 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 decree in a suit to rescind a conveyance of certain real estate. The facts are sufficiently stated in the opinion.

<p>Hearing on an appeal by the defendant from a judgment on a verdict directed by the court in an action of ejectment.</p> <p>The facts are sufficiently stated in the opinion. ,</p>

<p>Hearing on an appeal by plaintiff from a judgment on a verdict directed by the court in an action to recover damages for personal injuries.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal by the plaintiff from a judgment on a verdict directed by the court in an action for damages for breach of a contract under seal. The Court in its opinion stated the case as follows: This is an action on a contract, for an alleged breach thereof, entered into between the plaintiff, James F. Manning, a contractor for stonework and a builder of monuments, and the defendant, Henry J. Ellicott, a sculptor and designer of memorial statues.

<p>Hearing on an appeal by the complainants from a decree sustaining demurrers to and dismissing a bill in equity.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Chattels, Lease op with Reservation op Title ; Replevin ; Assignment Pending Suit ; Demand ; Tender ; Failure to Return Notes ; Practice ; Evidence.</p> <p>1. Under an agreement for the lease of certain chattels, with a reservation of title until the payment in full of the rent, and a provision for a sale for a nominal consideration upon full payment of such rent, no title passes prior to the performance of the conditions of the agreement; and upon the default of the lessee in payment of rent as stipulated the lessor may maintain replevin to recover possession.</p> <p>2. And where, subsequent to such default, the lessor executes a written transfer of the said chattels to a third party, the transferee may maintain replevin; and at the trial of such action, evidence tending to show that the transfer was colorable only and intended merely to enable the transferee to maintain the action, will not be admissible on behalf of the defendant.</p> <p>3. The right of a plaintiff in replevin to recover in the action is not affected by his assignment, pending the suit, of his interest in the property the subject of suit and of the right to prosecute the cause in his name.</p> <p>4. That the title of the assignee under an assignment passing the legal title to the interest of the assignor in chattels the subject of a lease is, as between the parties to the assignment, subject to a trust in favor of the assignor, will not defeat the right of the assignee to maintain replevin to recover possession of the chattels.</p> <p>6. The failure to make a technical tender of storage charges will not render a demand upon a warehouseman for the delivery of property in his possession ineffectual as preliminary to an action of replevin, where the demand was refused by the warehouseman upon other and distinct grounds.</p> <p>6. Actual demand upon a .party in possession of chattels under a lease by the terms of which title is reserved in the lessor until full payment of the rent, with the right in the lessor to retake possession on default in payment, is not necessary as preliminary to maintaining replevin when the lessee secretes himself, or leaves the jurisdiction, or asserts an adverse title to the property.</p> <p>7. The failure of the lessor of chattels under a lease providing for the payment of rent in instalments to return notes for the amount of the instalments given by the lessee though not required by the lease, will not prevent the lessor from maintaining replevin upon default by the lessee in the payment of rent; but any claim of the lessee growing out of such notes or any disposition made of them is an equitable one strictly.</p> <p>8. The action of replevin is substantially ex delicto, and the verdict may be against one and in favor of another defendant.</p> <p>9. Where goods taken under a writ of replevin are redelivered to the defendant upon a forthcoming bond, the judgment for the plaintiff would be for the goods and damages for their detention, and the remedy would be upon the bond in the event of its breach; and in such case, it is not necessary, in the replevin action, that the separate value of each piece of goods shall be shown.</p>

Hearing on an appeal by the petitioner from a judgment dismissing her petition for a writ of habeas corpus. The Court in its opinion stated the ease as follows: This appeal is from a judgment discharging a writ of habeas corpus that had been issued on a petition filed by Mary Kemble Slack against Lewis Perrine and Harriet Ad die Slack Perrine to recover the possession of her two infant children, Mary Juliet Gerard and Katharine Addie Slack.

Hearing on an appeal (specially allowed) from an interlocutory order striking out a plea of res judicata to a bill for an injunction. The facts are sufficiently stated in the opinion.

Hearing on an appeal by complainants from a decree sustaining a demurrer to and dismissing a bill for an injunction. Tbe Court in its opinion stated the case as follows: This is an appeal from a decree sustaining a demurrer to and dismissing appellant’s bill for an injunction against Hoke Smith, the Secretary of the Interior, and Silas W. Lamoreux, the Commissioner of the General Land Office.

Hearing on an appeal from a decision of the Commissioner of Patents in an interference proceeding involving the question of priority of invention for an improvement in the process of manufacturing hollow glassware. The facts are sufficiently stated in the opinion.

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

Hearing on an appeal from a judgment in condemnation proceedings instituted under the Act of Congress of March 2, 1893 (27 Stat. 332), providing for a permanent system of highways in the District of Columbia outside of the cities of Washington and Georgetown.

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

<p>Hearing on an appeal from a judgment in condemnation proceedings instituted under the act of Congress of March 2, 1893 (27 Stat. 332), providing for a permanent system of highways in the District of Columbia outside of the cities of Washington and Georgetown.</p>

Hearing on an appeal by petitioner from a judgment discharging a writ of habeas corpus sued out by a Chinese person ordered to be deported from the country; and by the United States from an order admitting the petitioner to bail pending the appeal. The Court in its opinion stated the case as follows : Both of the foregoing appeals were taken in the same case.

Hearing- on an appeal from orders of the court below-holding a special term for Orphans’ Court business in a proceeding for the settlement of the accounts of a guardian. The Court in is opinion stated the case as follows: These appeals are taken from two separate orders passed by the Supreme Court of the District of Columbia holding a special term for Orphans’ Court business.

<p>Hearing on appeals by tbe District of Columbia from judgments on verdicts directed by the court in prosecutions for alleged violations of a municipal ordinance.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by the plaintiff from a judgment on a verdict directed by the court in an action of replevin.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is an action of replevin brought by the appellant, The Cumberland Hydraulic Cement and Manufacturing Company, in the Supreme Court of the District to recover of defendant, Joseph M. Wheatley, 1,350 barrels of cement. Ten hundred and thirty-eight barrels were found by the marshal and seized under the writ. At the close of the plaintiff’s evidence, the court instructed the jury to return a verdict for the defendant; and from the judgment thereon plaintiff has appealed.</p> <p>It appears from the evidence offered by the plaintiff that it is a corporation engaged in the manufacture of cement at Cumberland, Maryland, and has its principal office in the city of New York, where its president, M. S. Ackerman, resides. On October 9, 1894, the plaintiff wrote the defendant accepting an offer made by him for the purchase of 5,000 barrels of cement, to be shipped at the rate of three carloads daily.</p> <p>The letter of acceptance contained this clause:</p> <p>“ We , will consign shipments to J. M. Wheatley, Washington, D. C., and will make shipments of such cement as will pass the District specifications—terms of sale cash at thirty days—and trust your arrangements will be such as to give us prompt settlement.”</p> <p>An option of 1,000 additional barrels was also included. By January 26, 1895, the plaintiff had delivered under the order more than 5,000 barrels, and defendant was indebted on account thereof more than $2,000. A large quantity of the cement had been condemned or rejected by the District authorities, and had been so reported, from time to time, by the defendant.</p> <p>Plaintiff’s president, Ackerman, came to Washington at that time to have a settlement. Defendant told him he could not make a settlement, but would turn the cement back to the plaintiff, which was agreed to. There were then 1,100 barrels in the warehouse of one Hewitt, where they had been stored by the defendant. Defendant promised to write an order for the cement, and a few days later wrote several letters to the plaintiff on the subject. In the first, dated January 29, 1895, he said : “I have in storage here, subject to your order and for sale for your account, the following cars cement. [Here follows a description of same as amounting to 1,100 barrels.] . . . The conditions of such sale are to be that the wood cement is to net you 72 cents per bbl. f. o. b. Cumberland, and the bulk cement is to net you 50 cents per bbl. f. o. b. Cumberland.” Other parts of the letter referred to negotiations for sale to one Block. On January 31, and February 1, he wrote again to plaintiff, notifying it of the arrival of 250 barrels more, which he agreed to hold on same terms. On January 30, Ackerman acknowledged the receipt of the letter of the 29th, and called attention to the fact that the statement of 1,100 barrels was 250 short of expectation, and asked an explanation. This letter contains the following clause: “ The understanding is, that you sell this cement for our account for not less than 72c. in wood and 50c. in bulk to us at the works. If you sell it to Mr. Block, cash must accompany the order; and if you sell it to any outside party other than the Government, let us know first. I note that you say that whether Block gives a voluntary order to the clerk, check for $1,013 will be made payable to ourselves; or if to you, you will endorse it to us. I trust that this will be a sure and speedy settlement of the whole affair.” On February 7, 1895, plaintiff gave the defendant an order in writing to deliver the cement to J. H. McGill as per list of 1,350 barrels, and added therein: “ When you have delivered the cement and can show a receipt for same, we will credit your account for the same.” This order was presented and delivery refused. Ackerman then came to Washington to see the defendant, who again refused to deliver the cement, whereupon the suit was instituted.</p> <p>The cross-examination of the said Ackerman contains the following: “ Did you not state to Mr. Wheatley at the time (referring to the conversation preceding the letter of January 29) that these goods were sold on 30 days’ credit and that you had to have some means of accounting to your firm for not insisting on payment ? ” Witness said : “ I would not be surprised if I said that.” In answer to the question, “ In order to account to your firm for not insisting upon payment at the expiration of 30 days, you wanted an order of the character you have here; was not that the purpose of the order ? ” He said, “ Partially so, you might say.” He was then asked, “Didn’t you so state to Mr. Wheatley in order to get the order from him ? ” and replied, “Yes; I told him I thought I could sell the cement, hut when the time came to sell it I did not want to make any dicker about it.” Witness then produced a statement of account with defendant, dated March 30, 1895, showing items of cement delivered from September 29,1894, to December 21, 1894, and amounting, at the prices stated, to $3,533.68. Three credits were entered to defendant as follows: “January 14, 1895. By cash, $550; January 28.. By note, C. C. C. Co., $213.68; March 30. By cash, $300.” Plaintiff also read in evidence an agreement duly signed by the defendant and approved by counsel, the second clause of which is as follows: “ That the cement mentioned in said letters and in this cause came over the Baltimore and Ohio Railroad, and was delivered to me, and is the same cement in controversy.” He also read the following affidavit of defendant, filed in the cause March 13, 1895; “Joseph M. Wheatley, being duly sworn, deposes and says that he is the defendant in the above-entitled cause; that he had and has a contract with plaintiff to purchase from said plaintiff and it to sell to him fifteen thousand barrels of its cement, more or less; that in pursuance of that contract it has sold to him about nine thousand barrels; that this cement, now in controversy and replevied in this action, was not in accordance with the contract and was rejected by the city and by this affiant stored in Walter F. Hewitt’s warehouse, where it still remains; that this cement mentioned in the declaration filed herein was consigned to this affiant, the freight paid by him, and this cement charged on the books of the plaintiff to him.” Some other evidence was offered tending to identify the cement found in the Hewitt warehouse and seized by the marshal, as shown by his return to the writ, and relating to certain warehouse charges claimed by said Hewitt. The cement seized was suffered to remain in the warehouse.</p>

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

Hearing on an appeal by defendant from a judgment on verdict in an action against a married woman on a contract having relation to her statutory separate estate. The facts are sufficiently stated in the opinion.

<p>Hearing on an appeal by plaintiff from a judgment on a verdict directed by the court in an action to recover damages for breach of contract; and by the defendant from a judgment on verdict in an'action on an award.</p> <p>The Court in its opinion stated the case as follows:</p> <p>These two cases have reference to the same subject-matter of controversy, and were consolidated for trial in the court below.</p> <p>On February 24, 1883, Davis W. Bailey instituted suit at common law in the Supreme Court of the District of Colum-' bia to recover damages from the District of Columbia, for the alleged violation by the latter of a contract between the District and himself, whereby he (Davis) had agreed to repair with asphalt the surface of certain streets in the city of Washington, and the District of Columbia had agreed to pay him for the same. The burden of his complaint was that, while he was proceeding with the work, he was prevented by the Commissioners of the District from completing it; and that they had refused to pay him his money, as required by the contract.</p> <p>The District of Columbia denied its liability, and contested the suit, during the pendency of which and before any trial of the issue between the parties, the plaintiff died, and his administratrix, his widow, was substituted as plaintiff in his place (January 14, 1885).</p> <p>No progress seems to have been made in the case until September 16,1891, when one of the attorneys for the plaintiff addressed a letter to the Commissioners of the District, in which, after having recited the substantial facts of the controversy, he added: “ I write to ask if you will appoint some good man as a referee or arbitrator to whom this case may be referred, with power to hear the evidence and make an award which shall be accepted, whether for or against us, as a final settlement of this long and much litigated case.” No immediate action seems to have been taken by the Commissioners on this letter; but there were frequent interviews between them and the attorney for the plaintiff, in which the suggestions of the letter were reiterated by the latter and the Commissioners were urged to name any person whom they pleased as referee, with the distinct understanding that his award should be final, as is claimed by the attorney. The Commissioners finally acceded to the suggestion; and under date of January 11, 1892, they made this order upon their records:</p> <p>“Office of the Commissioners of the District of Columbia. Washington, January 11, 1892.—Ordered, that J. J. Johnson is hereby appointed referee in the matter of the suit of Bailey, administratrix of Bailey, deceased, v. District of Columbia.—Official copy.—By order: W. Tindall, Secretary.”</p> <p>This order was communicated to the plaintiff’s attorney; and thereupon the parties by their respective attorneys, and with their witnesses, appeared before the referee, J. J. Johnson, Esq., who entered upon his duties as such, took testimony, and proceeded to make his award. In it he found that there was due from the District of Columbia to the plaintiff, on account of the contract which formed the basis of the suit, the sum of $10,519.20, which was composed of two items, one of $4,440.15 for the profit of the unexecuted balánce of the contract, and the other of $6,079.05 for an enlargement of the contract which required the resurfacing of a larger area of the streets than had originally been intended, for which a claim was made under an amended declaration filed with the consent of the attorneys of both parties. The report of the award the referee filed in court, or in the clerk’s office, entitling it in.the case, which he did without consultation with either party; and with the report were some papers containing fragmentary portions of the evidence taken before him, which he subsequently testified he had taken for his own guidance, and had hot reduced to the condition of formal deposition. The filing of the report was on July 18,1892.</p> <p>It should be noted that there was no order made by the court at any time, either before or after the action by the referee, referring the cause to him.</p> <p>On September 23, 1892, exceptions to the report of the referee were filed by the District of Columbia on the ground of excessive damages, insufficiency of evidence and errors of law, the attorney for the plaintiff waiving objection for lapse of time.</p> <p>Again the case rested until March 10, 1893, when the plaintiff, by a new attorney, moved for judgment on the award. But what further action, if any, was taken in the case, until the cause was consolidated for trial with another suit subsequently instituted, does not appear from the record before us.</p> <p>Proceeding upon the theory that the reference of the cause by the parties to Mr. Johnson was a submission to arbitration, and that the award was binding upon both parties as that of an arbitrator, and was not a mere reference under statute to aid the court in reaching a judgment, the plaintiff, on August 8, 1893, assuming that the first suit had been discontinued by the reference to arbitration, instituted a suit upon the award. To this the defendant pleaded that there was no award; that the alleged award was not under seal, and had never been delivered to the defendant; that there never was any agreement to submit to arbitration; that the former suit was yet pending, and that the defendant wTas never indebted and had never promised as alleged. When the cause was ready for trial, motion was made on behalf of the plaintiff for its consolidation with the previous cause “for trial at the same time and by the same jury,” and the motion was granted over the opposition of the attorney for the District, who, however, took no exception to the ruling, so far as the record discloses.</p> <p>At the trial the plaintiff proved and offered in evidence the letter hereinbefore mentioned, proposing the submission of the case to a referee, and the order of the Commissioners of the District appointing J. J. Johnson, Esq., as referee. She then adduced testimony in regard to various interviews, subsequent to the date of the letter, between her attorney and the Commissioners, tending to show that the agreement between the parties was for a final arbitration, and not merely for reference for report to be made to the court. Several objections were made to this oral testimony on behalf of the defendant on the ground that the agreement between the parties was in writing, and that its terms could not be varied by oral testimony. But these objections were overruled, and exception was duly noted.</p> <p>Then the plaintiff offered in evidence the report or award of the referee, which was admitted over the objection of the defendant. For this objection two grounds were assigned: 1st. That all the papers and evidence that appeared to have been attached to the report should have been offered with it, if it was offered at all; and, 2d. Because the referee was without authority to make an award. To the ruling of the court exception was reserved. This was the substance of the plaintiff’s evidence in chief. The defendant then introduced oral testimony tending to show that the reference to Mr. Johnson was not intended to be an arbitration; and also offered in evidence the record and proceedings in the first cause, the purpose being apparently to get in not only the referee’s report, but also all the papers that had been attached to it, or delivered to the clerk with it. Some confusion or misunderstanding seems to have resulted in this connection. There was a colloquy between counsel as to what was intended to be included in the offer, counsel for the defendant stating that he meant to offer “the record in the first case;” then again, “the declaration, pleas, and everything else;” and again, “the report of Mr. Johnson, the exceptions to the report, and the motions to confirm the report.” Strangely enough, the record before us does not show whether this record and proceedings, or whatever it was that was offered in evidence, was admitted by the court or refused. There is nothing to show the ruling of the court upon it. But as no exception appears on the record to have been taken by either party, it must be assumed that the action of the court in that regard was satisfactory to both_</p> <p>But in the course of the preparation of the bill of exceptions, a controversy arose before the judge as to whether the evidence, or what is called the evidence, alleged to have been attached to the referee’s report, was included in the offer. After stating the misunderstanding of counsel as to the matter, the justice who tried the case, says, in the bill of exceptions:</p> <p>“No part of the papers purporting to be evidence was in fact read in evidence to the jury, the case being submitted without argument. The presiding justice is of opinion that the evidence so called is not a part of the report and was not included in the offer; but in order that the District of Columbia may be able to present this question to the Court of Appeals, the evidence in question is appended hereto and marked ‘Exhibit A,’ and made part hereof.”</p> <p>There was testimony in rebuttal by the plaintiff, and both parties then presented prayers for instructions to the jury. The plaintiff requested one, which was granted, and the defendant five, two of which were granted and three refused.</p> <p>The plaintiff’s prayer was, in substance, that if, in fact, an arbitration was intended by the reference to Mr. Johnson, the jury should return a verdict for the plaintiff. To the granting of this the defendant excepted.</p> <p>Of the two prayers granted on behalf of the defendant, one was for a peremptory instruction to the jury to return a verdict for the defendant in the first case, on the ground apparently that there was nothing to support the declaration. Exception to this was noted by the plaintiff, for the avowed purpose merely of preserving her rights in that case in the event that she should not succeed in the second. And the second prayer granted on behalf of the defendant was the converse of the plaintiffs prayer, and was to the effect that, if the jury found that by the reference to Johnson only a reference for report to the court was intended, their verdict should be for the defendant. Of the three prayers refused, one contemplated a peremptory instruction to the jury to return a verdict for the defendant in the second case; another that the Commissioners had no authority to agree to an arbitration; and the third, that the plaintiff, as administratrix, had no authority to submit to an arbitration.</p> <p>It is presumed that exception was taken to the action of the court on these prayers, but it is one of the peculiarities of this very peculiar case, that what purports to be the bill of exception in this regard is without date and does not purport to have been signed by the trial justice or by any justice. And there would seem to be some reason to doubt whether the bills of exception or any of them were signed in due time; but no point is made in this regard by the appellee.</p> <p>The court proceeded to charge the jury of its own motion; and the charge is contained in full in the record—and there is what purports to be a bill of exceptions to some portions of it, specified to be “ such parts of said charge as are contained within brackets.” Yet the record shows no brackets, and there is nothing whatever to indicate the parts of the charge to which exception was taken.</p> <p>The jury rendered a verdict for the plaintiff for the amount claimed, being the sum of $10,519.20, as found in Mr. Johnson’s award, with interest thereon from July 18, 1892, the day on which the report was filed. And upon this there was judgment entered, from which the defendant has appealed to this court. The plaintiff, also, has appealed from the judgment entered in the first case, which was for the defendant.</p> <p>Errors, nine in number, are assigned by the defendant, as follows:</p> <p>1. In consolidating the two cases.</p> <p>2. In admitting oral testimony to show that the intention of the parties was to submit the case to arbitration, the agreement of the parties being in writing.</p> <p>3. In admitting in evidence the report of the referee, without including the papers and evidence attached thereto and filed therewith by the referee as part of his report.</p> <p>4. In excluding from the consideration of the jury the evidence attached to and forming part of the report of the referee.</p> <p>5. In holding that the report of the referee was admissible in evidence as an award.</p> <p>6. In granting the plaintiff’s first prayer.</p> <p>7. In refusing to direct a verdict for the defendant.</p> <p>8. In refusing to grant the defendant’s third prayer, that the Commissioners were without authority to agree to submit the matters in controversy to the final award of an arbitrator.</p> <p>9. In refusing to grant the defendant’s fifth prayer, that the plaintiff, as administratrix of her deceased husband, had no authority to agree to submit the claim to arbitration.</p>

<p>Hearing on an appeal by the petitioner from a decree dismissing a petition filed in a proceeding for foreclosure of a mortgage, for leave to participate in the proceeds of sale.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This suit had its origin in a bill for foreclosure filed by Caroline Eyster in the Supreme Court of the District, May 21, 1895.</p> <p>The bill was filed against Richard L. Cropley and Frances M. Jones, and alleged, substantially: (1) That complainant was the owner and holder of a note for $2,000 made by said Cropley on September 1,1873, payable to the order of said Frances M. Jones, and due two years after date, with interest, payable quarterly, at the rate of nine per cent, per annum. (2) That said note was endorsed and delivered by said Frances M. Jones to complainant for a full and valuable consideration. (3) That another note for $1,300- was executed at the same time by said Cropley and payable to said Frances M. Jones at eighteen months, with interest at six per cent, per annum. (4) That a conveyance in trust was, on the same day, executed by said Cropley and his wife to Frederick W. Jones, trustee, of certain described land in the city of Georgetown, to secure the said notes; and power of sale was therein conferred in case of default in the payment of the principal of the said notes or any instalment of interest on either of them, as the same matured. (5) That about October 12, 1881, complainant made an agreement in writing with said Cropley to reduce the interest on said note to seven per cent, per annum upon the express condition that he should pay, and keep duly paid, the taxes and insurance due and accruing due on said premises, as well as remit with promptness, and free of charge to her, the said quarterly interest payments. (6) That said Cropley paid interest until March 1, 1895, when he made default. (7) That upon inquiry complainant discovered that he had made default in the payment of taxes and that there was then a large sum due on account thereof, with penalties and costs, that were a charge upon the said land. (8) That she believes the $1,300 note had long since been paid by said Cropley. (9) That the trustee, Fred. W. Jones, died February 10, 1891, after having devised and bequeathed all of his estate to his wife, said Frances M. Jones. (10) The prayers of the bill are for an order of sale and the appointment of a substitute trustee for said Fred. W. Jones, deceased, and for general relief. (11) An amended bill was filed June 20, 1895, making the heirs at law of said Fred. W. Jones parties defendant.</p> <p>The answer of Frances M. Jones is formal and of no consequence in the case. Richard L. Cropley’s answer admitted the substantial allegations of the bill, and expressly averred that the $1,300 note had been paid by him during the lifetime of said Fred. W. Jones.</p> <p>On November 21, 1895, a decree was passed ordering the sale of the said premises as prayed, and appointing W. L. Cole and Charles H. Cragin trustees to make the same. Sale was duly made and the report thereof confirmed, January 3, 1896 ; and the auditor’s report for distribution of the proceeds, in which the $1,300 note was regarded as no longer in existence, was confirmed January 9, 1896.</p> <p>On January 11, 1896, the appellant, George W. Cropley, filed a petition in the case, in which he alleged: (1) That he was the holder of said $1,300 note, which had been endorsed to him for full value by said Fred. W. and Frances M. Jones, before maturity. (2) That said note, less certain part of the principal, and the interest to March 1,1879, was still due, with interest at the increased rate of ten per cent, per annum by agreement endorsed thereon. (3) After reciting the proceedings on complainant’s bill, as aforesaid, it is alleged that he was not aware of the same and knew nothing of the existence of such cause until January 10, 1896, when he saw in a newspaper that the sale had been made; whereupon he notified the said trustees not to pay over the proceeds of said sale before he could present his petition, &c. (4) He prayed that the auditor’s report be set aside and the matter again referred with instructions to allow petitioner .his due proportion of the proceeds of said sale.</p> <p>Complainant and the Farmers’ and Mechanics’ Bank answered the petition, denying the allegations thereof upon information and belief. It appears that there was a second mortgage on the said premises to secure a note due by said Cropley to the Farmers’ and Mechanics’ National Bank of Georgetown, and that said bank became the purchaser finder the foreclosure sale. ,The property sold for $2,700, which is not sufficient to pay both the debt due complainant Eyster and the said $1,300 note.</p> <p>Mrs. Eyster has been from the beginning a resident of Fairmont, West Virginia, and is about 78 years of age. It appears that prior to September 1, 1873, Fred. W. Jones owned the mortgaged premises, and that Mrs. Eyster held his two notes for $1,000 each, secured by mortgage thereon. He sold the property to Richard L. Cropley, and proposed to Mrs. Eyster to substitute his said notes with the $2,000 note aforesaid.</p> <p>After some correspondence, in which said Jones assured her that the property was the same and that the new note was secured by first mortgage as the old ones were, she agreed to receive the note, and then surrendered the old ones. She had no knowledge then of the $1,300 note. She testified that Jones sent her the trust deed sometime after-wards (witness could not state the time with any accuracy); and she had it examined by some competent person, who told her of the recital of the $1,300 note therein, and advised her to inquire into it. She wrote to Jones, and he replied in a letter, that has been lost, that the $1,300 note had been paid. She had never heard of it again until the filing of the intervenor’s petition. The Cropleys were brothers and lived in Georgetown, near each other, during the whole time covered by these transactions. Fred. W. Jones was a practicing lawyer in Georgetown, and died February 10, 1891.</p> <p>The $1,300 note was produced by George "W. Cropley, who said that he purchased it of Fred. W. Jones shortly after its date. It is endorsed by Frances M. and Fred. W. Jones. The following entries appear on the back of the note:</p> <p>“Rec’d on ac. within note, March 5th, 1875, $339.21. H. W. Barrett, cashier Georgetown Sav. (?) Bank. Int. paid to M’ch 1st, 1874, $39.00; int. paid to Sept. 1st, 1874, $39.00. Frances M. Jones, F. W. Jones. March 5th, 1875, I hereby agree to pay ten (10) per c’ts interest per annum on one thousand dollars’ balance. R. L. Cropley. April 29, rec’d one hundred dollars, being one year’s interest to March 1st, 1876. Jan. 30, int. paid to M’ch 1st, 1877, $100; int. paid to March 1st, 1878 ; int. paid to M’ch 1st, 1879.”</p> <p>It is conceded that the interest due March 1 and September 1, 1874, as endorsed above, was paid; that the payment of $339.21 was made March 5,1875, by which the principal was reduced to $1,000; and that R. L. Cropley on the same date signed the agreement to pay interest thereafter at the rate of ten per cent.</p> <p>The facts about which there is dispute relate to the possession and ownership of the note, at those dates, and to the later endorsements of interest payments from March, 1876, to March 1, 1879, and the payment of the principal, which will be considered later. The cashier of the Georgetown Savings Bank, whose memory was aided by the books of the bank and the endorsements, testified that the said note was in the possession of the said bank on March 4,1875, for collection on account of Fred. W. Jones; that it was endorsed on the back by him and Frances M. Jones, and that R. L. Cropley paid the said sum of $339.21 by check on that date, and the same was credited to the account of Fred. W. Jones. Witness was sure that George W. Cropley did not deposit the note. The note was not discounted by the bank, and the books show nothing of any other payment than the $339.21 aforesaid. The bank closed its business in February or March, 1877, and some of its books have been lost.</p> <p>The cause came on for hearing March 25,1896, and the' petition of George W. Cropley was dismissed, with costs. From that decree he has appealed.</p>

Hearing on an appeal by complainant from a decree dismissing a creditor’s bill to subject an equitable interest of defendant under a will to satisfaction of a judgment at law. The Court in its opinion stated the case as follows: The appellant, Charles C. Bryan, filed a creditor’s bill against the appellee, William May, to obtain satisfaction of a judgment, and appeals from a decree of dismissal upon a demurrer thereto.

Hearing on an appeal by the defendant from a j'udgment on verdict in a landlord and tenant proceeding removed from a justice of the peace upon a plea of title. The Court in its opinion stated the case as follows: This suit seems to have been commenced before a justice of the peace for the purpose of the recovery of possession of certain real estate in the District of Columbia, under the provisions of the Landlord and Tenant Act in force in this District.

<p>? Hearing on an appeal by the plaintiff from a judgment on special verdict in an action of ejectment.</p> <p>The Court, in its opinion, stated the case as follows:</p> <p>This is an action of ejectment brought by the appellant William H. Frey, in the Supreme Court of the District to recover possession of one-half of certain parcels of land. Judgment was rendered for the defendant, Martha E. Allen, on a special verdict, and plaintiff has appealed therefrom. The verdict was, in fact, prepared for the jury, and recites at length the pertinent facts of the case, thereby obviating the necessity of a bill of exceptions.</p> <p>From the recitals of the verdict it appears that the titles of the parties respectively have a common source in a deed from John W. Van Hook and his wife Emma, on February 2, 1867, to John A. Frey, “trustee, his heirs and assigns forever.” The habendum clause of the deed reads as follows:</p> <p>“ To have and to hold the said pieces or parcels of land and premises and appurtenances unto the said party of the second part, his heirs and assigns, upon the trusts, nevertheless, that is to say, in trust to hold the same for the sole use and benefit of Leona V. Frey, her heirs, free from the control of her present or any future husband, to collect the rents, issues, and profiits thereof, and the same to apply to the use of the said Leona V. Frey, and to such uses and upon such trusts as she in writing may direct.” The foregoing is followed by the ordinary covenant of warranty.</p> <p>The said Leona V. Frey was the wife of the trustee, John A. Frey.</p> <p>On March 18, 1868, said John A. Frey, as trustee, conveyed the said lands to Huey A. Clark and William A. Fenwick, trustees of the First Co-operative Building Association of the District of Columbia, to secure the payment of a note for $792, on the same day executed by said John A. Frey, in his own right, to Charles B. Church, treasurer of said association. The instrument is in the ordinary form of a trust deed with power of sale in default of payment of the note aforesaid. It contains this recital, after the statement of the indebtedness aforesaid: “And in order to secure the faithful performance of the condition in said sealed obligation in writing obligatory mentioned and stipulated to be performed by the said John A. Frey, the said party of the first part hereto hath been directed to execute these presents.”</p> <p>This conveyance was read from the records of deeds, and showed the following endorsement:</p> <p>“ Mr. John A. Frey, trustee:</p> <p>“ You are hereby directed to execute the above deed of trust in compliance with the terms of the deed of the 2d of January, A. D. 1867.</p> <p>“ Leona V. Frey.</p> <p>“ Witness: Deborah E. Whitmore.”</p> <p>The said John A. Frey having failed to pay the secured indebtedness, the trustees, Clark and Fenwick, in pursuance of the powers conferred on them, sold the lands to the creditor association, and on November 26,1869, conveyed them to Charles B. Church, trustee, for its benefit. October 26, 1880, Church, trustee, for a valuable consideration and at the request of the said association, conveyed the same to the same to the appellee, Martha E. Allen, who at once entered into possession.</p> <p>Leona Y. Frey died in the year 1870, leaving two children, John Frey and the appellant, William H. Frey. John A. Frey, trustee, the husband of Leona V. Frey, was alive at the time of the institution of the suit and of the trial.</p>

<p>Hearing on an appeal by the defendant from a decree in a proceeding in equity to quiet title to certain real estate.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is an appeal from the Supreme Court of the District of Columbia sitting as a court of equity, wherein the question in controversy is, whether the estate created in the appellee, Kunigunda Fedarwisch, by a certain deed set forth in the record, was a tenancy in common, a joint tenancy, or a tenancy by the entirety.</p> <p>A deed of conveyance executed on September 7,1869, and being in form an ordinary deed of bargain and sale, purported to convey certain real estate in the District of Columbia in fee simple to one Joseph Frank and his wife, Kunigunda Frank, now Kunigunda Fedarwisch, the appellee, as parties of the second part, and their heirs and assigns forever. Embodied in the deed were some independent reservations and covenants with respect to a road through a portion of the property conveyed, which reservations and covenants had no necessary connection with the grant of the estate, or with the character or quality of the estate that was granted. But in them the expression “ party of the first part” and “party of the second part” are several times used, when, in fact, there were two parties on each side, husband and wife in each case; and in one instance there is a provision that “ the said parties of the first and second part . . . will bear, share and share alike, the expense of keeping said road in good condition and repair.”</p> <p>Joseph Frank, the husband, died in 1876, leaving his wife, Kunigunda Frank, surviving him, and leaving a will rather peculiarly expressed, but from which it may properly be inferred that he devised and bequeathed all his estate to his wife as long as she remained single, and that, upon her remarriage, his children should become entitled, as though no will had been made. He also appointed his wife as the executrix of his will; and she became duly qualified as such, and administered the personal estate. But it does not appear from the record what real estate, other than that mentioned in the deed to which reference has been made, Joseph Frank owned at the time of his death, or at the time of making the will, which was in the same year.</p> <p>About three years after the death of Joseph Frank his widow, Kunigunda Frank, intermarried with one Lewis Fedarwisch, with whom she lived only a short time and from whom she was subsequently separated.</p> <p>Upon this remarriage of the appellee the children of the first marriage claimed that they had thereby become entitled, in pursuance of their father’s will, to their respective shares in the property. One of the children, Edward J. Frank, seems to have been specially active in the assertion of his claim; and the appellee settled with him, in 1895, by the payment to him of $600, in consideration of which he relinquished or conveyed to her his interest in the property. More recently the other children, and especially the appellant, Katharine Alsop, who had been married in the meantime to one Thaddeus Alsop, renewed the assertion of their claim.</p> <p>All of the children for a time have been, and some of them yet are, living upon the property with the appellee, who earns her living by raising vegetables and selling them. And the appellant, Katherine Alsop, seems to be living separately upon part of the property.</p> <p>The appellee filed her bill in equity to quiet her title to the whole estate, which she claims to own by right of survivorship, and to enjoin the children from setting up any title thereto. All the children, eight in number, seem to have been made parties to the suit as defendants; but whether they were served with process, or what defence, if any, they made, the record 'before us does not disclose. That record shows only an answer by Katherine Alsop individually, a replication to that answer, and a decree in favor of the plaintiff and in accordance with the prayer of her bill. It would appear from the decree that there was some testimony taken; but that testimony does not appear in the record, and it was probable unncessary that it should appear, inasmuch as the substantial questions before us sufficiently appear from the record as it stands.</p> <p>From the decree quieting the title in the plaintiff, Kunigunda Fedarwisch, the defendant, Katherine Alsop, has appealed to this court.</p>

Hearing on an appeal by defendant from a judgment on verdict in a prosecution for violation of act of Congress of August 2, 1886 (24 Stat. 249). The facts are sufficiently stated in the opinion.

Hearing on an appeal by the defendant from a judgment on verdict in an action for damages for personal injuries. Statement oe the Case. At the trial, the following instructions were granted at the request of the plaintiff, over the objection of the defendant, and exception duly noted : “ 1.

<p>Hearing on appeals from a decree in a suit in equity for the construction of a will.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal from a decision of the Commissioner of Patents.</p>

Hearing on an appeal by defendant from a judgment on a verdict directed by the court in an action to recover money paid as a deposit to be credited upon the purchase price of certain real estate.

Hearing on appeal by plaintiff from a judgment on demurrer to the declaration in an action on the case for damages for negligent transmission of a telegram, plaintiff having elected not to amend. The Court in its opinion stated the case as follows: This is an action on the case for damages for negligent transmission of a telegram.

<p>Hearing on an appeal from a decision of the Commissioner of Patents refusing an application for the reissue of letters patent for an ice-planing machine.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Heabing on an appeal by plaintiffs from a judgment on a verdict directed by the court in an action to recover commissions for the sale of real estate.</p> <p>The Cotjbt in its opinion stated the case as follows:</p> <p>The appellants, Thomas C. Daniel and Thomas Armat, trading as Daniel & Armat, who were plaintiffs below, brought this action to recover certain commissions on a sale of land. Upon the close of the evidence the court instructed the jury to return a verdict for the defendant, the Columbia Heights Land Company.</p> <p>There is no conflict in the evidence on the material points of the case, and the question for determination is the application of the law thereto.</p> <p>Defendant owned lots 10 and 11 in block 33 of Columbia Heights subdivision, and the same had been for sale for several years. Plaintiffs were agents to sell, and fearing that others might intervene in the matter and deprive them of their commission, procured from Sol Haas, the president of the defendant company, a promise that it would protect the plaintiffs “ against any agent going around and buying the lots or dealing directly with him, the president, by which plaintiffs might be cut out of their commissions.”</p> <p>Plaintiffs then advertised the property, and procured from the owner of an adjoining lot, No. 12, authority to sell it also, at $1.15 per foot instead of the former price of $1.25, so that they might offer it with defendant’s lots 10 and 11.</p> <p>Plaintiffs advertised property in Columbia Heights at $1.36 per foot, and between October and December, 1894, Barr & Sanner called to know what lots were being offered at that price. They were told of the lots and of the arrangement concerning lot 12, which brought the whole down to an average of $1.36 per foot.</p> <p>On January 17, 1895, plaintiffs learned from the record of a deed that day filed that the defendant had conveyed lots 10 and 11 to said Barr & Sanner. They telegraphed Haas, who was then away from the city, informing him that the sale had been made through their efforts, and that they would claim a commission. The purchase price had then been paid, and the commission paid to Myron M. Parker as agent of sale.</p> <p>The lots had been for sale since 1885, and said Parker had been agent therefor. His sign was on the property during the time. In October, 1894, Haas told plaintiffs that Parker felt that he had been treated unfairly by the defendant’s arrangement aforesaid, giving them authority to sell. He further told them that Parker had been paying taxes, looking after the water main and other assessments, and he thought it fair to give an agency to both parties, and whichever sold the property would be entitled to the commission. He read to them from a letter that he had prepared to said Parker, under date of October 27, 1894, the following extract :</p> <p>“ Referring to our conversation on Wednesday, I have concluded that the fairest thing to do and at the same time best serve the interests of the company I represent is to put our Columbia Heights property in the hands of both yourself and Messrs. Daniel & Armat, giving you both exactly the same prices, the commissions going to whoever sells the property.”</p> <p>Plaintiffs assented to the proposition, and the letter was sent to Parker. Having been informed that the sale had been made by Parker, a commission was paid him upon the execution of the deed and receipt of the money. Defendant had at the time no knowledge that plaintiffs had anything to do with the sale, or claimed a commission.</p> <p>Lester A. Barr, a member of the partnership of Barr & Sanner, purchasers, was called by the plaintiffs. He said that he and his partner owned and had built upon the adjoining lots 8 and 9 some two years before the purchase. That they wanted to buy 10 and 11 to continue their row of buildings, but that lot 12, by reason of an alley adjoining it, was “ the key to the rear of lots 10 and 11,” and they had made several efforts to buy it. That he knew that Parker was an agent for the sale of lots 10 and 11, because his sign was on them as was also that of one Liepold. That he had seen the advertisement of the plaintiffs offering the property at $1.36, and having never had the lots offered to them as cheap before, called in to see about it and to propose an exchange. That he made an offer of exchange of property for the whole, which was declined. The advertisement was in the Star, in which the plaintiffs did a great deal of advertising. In going by their office on F street, he saw the notice on the board and went in to inquire. His attention was attracted by the price of the offer only, and he went in to inquire what lots they meant and to offer an exchange of improved property. That it was not through plaintiffs their “ attention was originally called to lots 10 and 11, and it was not by reason of their advertisement they subsequently became the purchasers.” That “ we knew, of course, about the corner lot by Mr. M. M. Parker’s sign, which was on it long before Daniel & Armat put their sign there.”</p> <p>Witness further said that Barr & Sanner had no intention of buying for cash, for they could not, at that time, have done so. That, after making a loan, they determined to purchase the lots. That they made the purchase through B. H. Warner & Co., who represented them. The price paid was $1.40 per foot, and amounted to $31,000. That becoming the purchasers depended upon two things, one of which was accomplished January 2, 1895. A positive and only offer was made a week before. After negotiating a loan they made the offer. B. H. Warner & Co. arranged the purchase for them.</p> <p>Louis D. Wine, a member of B. H. Warner & Co., said that Barr & Sanner authorized them to buy the lots for cash as cheap as possible. That he knew they were for sale by both Parker and the plaintiffs. That he saw plaintiffs and made inquiry of them, and saw Parker also. That he made the trade with Parker and the sale was closed through him.</p> <p>Plaintiffs also testified that Mr. Wine called to see them and was shown a map of the lots. The whole matter was explained to him. He left, saying, “ It is a good thing. I will let you hear from me.” This was about a week or ten days after the call of Barr & Sanner.</p>

<p>Hearing on a motion to dismiss an appeal from a decision of the Commissioner of Patents.</p>

Hearing on an appeal from a decision of the Commissioner of Patents refusing a patent for an improvement in bale-ties. The facts are sufficiently stated in the opinion.

<p>Hearing on an appeal from a decision of the Commissioner of Patents in an interference proceeding to determine tbe ownership of an invention of an improvement for trimming axles.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by defendants from a judgment on verdict in an action for libel.</p> <p>The Court in its opinion stated the case as follows :</p> <p>This is an action for libel brought by Thomas G. Lansden, the appellee, against the Washington Gas Light Company, John E. McLean, its president, Charles B. Bailey, its secretary, William B. Orme, its assistant secretary, and John Leetch, its general superintendent. The declaration charges that the defendants did compose and publish, and did cause and procure to be composed and published, a certain libel, set out in the declaration, of and concerning the plaintiff, and of and concerning certain testimony by him given before a committee of Congress, in a certain newspaper or periodical called “ The Progressive Age,” printed in the city of New York.</p> <p>The defendants all pleaded not guilty, and issue was joined on that plea. The verdict and judgment were for the plaintiff against the Gas Company, Bailey and Leetch, but there does not appear to have been any verdict or finding for or against the other defendants. This appeal is brought by the defendants against whom verdict and judgment were rendered.</p> <p>The article alleged to be libellous is set out in extenso in the declaration, and also in the bill of exception. It is headed, “The acrobatic performances of Lansden.” It is not protended that any of the defendants actually composed the libel as published in' “ The Progressive Age,” but it is contended that some of the defendants, at least, furnished the data, and procured or conduced to the composition and publication of the article complained of as libellous; and though none of the defendants may have actually dictated the term’s of the article, yet, it is contended, if they procured or conduced to the writing and publication of the libel, they are responsible therefor. In such case the libel is to be considered as published by their authority.</p> <p>It appears that Lansden, the plaintiff, was in the employ of the defendant gas company as general superintendent of the gas works, from the 1st of November, 1886, until the 1st of June, 1893. He was by profession a gas engineer; his business being to construct and manufacture gas works and manufacture gas; and he had been engaged in that profession for about 30 years.</p> <p>In January, 1893, action was taken by the House of Representatives looking to the reduction of the price of gas supplied by the defendant company to the Government buildings in the District of Columbia, to seventy-five cents per one thousand feet, and the plaintiff, Lansden, then in the employ of the gas company, was called upon by the president of that company to make a written statement of what he could testify to, if called as a witness before the committee of the House. He furnished such statement in his own handwriting, though he testifies and shows that some of the data thus furnished were supplied from the books of the gas company, for which he was in no wise responsible, and for the correctness of which he expressly disclaimed knowledge or responsibility at the time of delivering the statement to the president of the company. This statement, being placed in the hands of the president of the company, was thereupon placed in the care and keeping of Bailey, the Secretary, to be preserved for future use. The plaintiff, however, was not called upon as a witness at that session of Congress; and, in the meantime, that is, on the 1st of June, 1893, the plaintiff left the employment of the gas company, and was succeeded in the office of general superintendent of the company by John Leetch, one of the defendants. At the next session of Congress, that is, in 1894, an investigation was directed in respect of the reduction of the price of gas to one dollar, instead of one dollar and twenty-five cents per thousand feet, the then existing price. Before the committee of that session of Congress, the plaintiff appeared and gave testimony, and which, apparently, was in conflict with and contradictory of the estimates made and set forth in the preceding statement made and delivered to the president of the company in 1893.</p> <p>In the trial of this case, the plaintiff testified that he prepared a memorandum, at the request of the president of the company, in 1893, in the form of questions and answers, except that, as originally submitted to the president, the memorandum contained nothing as to the cost of gas; that the president said to him, “You say nothing here about the cost of gas,” and he told Mr. McLean that the cost of gas must come from him, the president, or from the secretary; that he was thereupon furnished with a statement, putting the cost of gas in the holder at 48.38 cents per thousand, and the cost of distribution at 40.09 cents per thousand; that the plaintiff said to McLean at the time, “ It cannot be possible that your gas costs that much,” to which he, McLean, replied that they were entitled to charge interest on their investment, and that the plaintiff then wrote in those figures, stating at the time, “It does not make any difference to me. If the committee ask me, I will give these as your figures.” The plaintiff further testified that the items of cost could only come from the books, which were kept at the office of the secretary of the company; that the plaintiff could approximate the cost of gas in the holder from knowing the amount of coal that was used, and the cost of labor, but that there were many items entering into its manufacture which. were not purchased by the plaintiff, and the cost of which was not furnished to him; that he never knew the actual cost of the manufacture of gas, and could not know it unless he had had access to the books of the company; that he never saw the books, either during his employment with the defendant company, o,r afterwards; and that it would have been impossible for him, estimating merely as an expert, and without the books of the company, to have figured the cost down to the hundredth part of a cent, as was done in the figures inserted in the memorandum.</p> <p>The plaintiff further testified that he was not called as a witness on behalf of the defendant company in 1893, and gave no testimony before the committee that year. He states that the memorandum referred to was furnished for the private use of the defendant McLean, and was left with him for his own use. He further states that in February, 1894, an investigation was made by the Senate committee into the cost of the manufacture of gas, and the plaintiff, by invitation, appeared before that committee and testified that, in his opinion as an expert, gas could be put in the holder at from 30 to 32 cents per thousand feet, and could be distributed at from 20 to 22 cents per thousand feet. '</p> <p>After this testimony of the plaintiff had been given before the committee, and the same, or the substance thereof, published in the Washington City papers, there came a letter of inquiry from Mr. E. C. Brown, the publisher of “The Progressive Age,” a journal or periodical published in New York City, of considerable circulation, and devoted to the interest of gas, electricity, and water supply companies; and which letter of inquiry was dated at New York, February 12,1894, and was addressed to the Washington Gas Light Company, Washington, D. C. This letter was received by John Leetch, the general manager of the company. In the letter the writer says:</p> <p>“I have watched with great interest the continued reports of the proceedings against your company, as published in the local newspapers of your city, and I have been some- - what surprised at the character and extent of Mr. Lansden’s testimony. Was his statement correctly reported in the ‘ Washington Star ’ of the 3rd inst.? Newspapers all over the country are taking up his figures and using them to suit their own ends against home companies. Any information you would care to give us concerning the object of Mr. Lansden’s attack will be considered confidential as to source of information.</p> <p>(Signed) “E. C. Brown. ”</p> <p>In reply to this inquiry the defendant Leetch, as general manager of the defendant company, by letter dated Washington, D. C., February 13, 1894, acknowledged the receipt of Brown’s letter of the 12th of February, and says :</p> <p>“ As Mr. Lansden is no longer in the employ of the gas company,the motive was generally understood thatprompted his statement. As the newspapers in Washington gave a correct version of his statement, there is no doubt he said that gas could be furnished at the meter for 70 cents and to the consumer for $1.00 per 1,000 cubic feet. This price at the meter was exclusive of repairs, services, etc.</p> <p>“ Under a former resolution of Congress, bearing date of February, 1893, Mr. Lansden was called upon to answer certain questions bearing upon the reduction of the price of gas in Washington and made the following replies:</p> <p>“ ‘ Q,. What does gas cost to manufacture at your works?</p> <p>“‘A. It costs 48.38c. per thousand in the holder and 40.09c. per thousand for distribution.</p> <p>“ ‘ Q. Can yon in any way reduce the cost of gas in the manufacturing, so your company could sell for less to the consumer ?</p> <p>‘“A. I know of but one way that a small amount could be saved—that is, by reducing the salaries of our clerks and the price paid to our laborers. This we would not like to do.</p> <p>“ ‘ Q. How do the prices charged for lamps in Washington compare with other cities?</p> <p>“ ‘ A. They are as low as anywhere where the same amount of gas is burned to the lamp and the same number of hours lighted in the year, and when the company lights and eleans the lamps.’</p> <p>“ You will notice that he makes a difference of about 18-|-cents per 1,000 feet then as compared with his statement now, although he must know that the material used (coal) and labor is just the same now as then, except price of naphtha which is higher. You can try to reconcile the two statements.</p> <p>(Signed) “ John Leetch,</p> <p>“General Manager.”</p> <p>On the 14th of February, 1894, and again on the 19th of that month, Brown wrote to Leetch, addressing him as the general manager of the Washington Gas Light Company, requesting data as to the testimony of Lansden before the Congressional committee, with an avowed purpose of publishing and exposing its conflicting statements. In the first of these letters Brown, in referring to a previous- letter to Leetch, says:</p> <p>“Your statements, as contained therein, are exceedingly interesting, I can assure you. It would seem that the inference as to the occasion for the statement could only result from one cause.</p> <p>“ I would ask you, if you can do so without too much trouble to yourself, to give me categorically the questions propounded to Mr. Lansden and answered by him as reported in ‘ The Star ’ of the 3d inst. I should like to reproduce exactly the questions and his replies under the former resolution of Congress, February, 1893, and follow up with the same covering the present investigation. I will not ask you to hurry about this, for I cannot use the matter until our issue of the 1st of March, but then, I can assure you, I will take it up in' the proper way. Any other facts of interest that you can give me in this connection I shall appreciate.”</p> <p>In the second of these letters, that of February 19, 1894, Brown says:</p> <p>“I hope you are intending to give me questions propounded to and answered by Mr. Lansden during the present investigation similar to the manner in which you gave me the questions then answered by him under the former resolution, as appears in your letter of the 13th. I am wanting to treat this matter in the way it should be touched on, and I have in mind publishing Mr. Lansden’s testimony on this particular point side by side.”</p> <p>In reply to these two letters, asking for data to enable the publisher of “The Progressive Age” to prepare and publish the article complained of in the paper to be issued on the 1st of March, 1894, Leetch, on the 20th of February, 1894, writes to Brown, and says:</p> <p>“ This delay in reply was my inability to secure a copy of report of proceedings before investigating committee of Congress. Only about twenty copies have thus far been printed for use of committee. To-day I received a copy, which I herewith enclose for your use.</p> <p>(Signed) “John Leetch,</p> <p>“ Gen’l Manager.”</p> <p>As will be observed, the first of the letters from Brown, that of the 12th of February, 1894, was addressed to the Washington Gas Light Company and answered by Leetch as general manager of the company, and the subsequent letters from Brown were addressed to John Leetch as the general manager of the company. These letters, it appears, were all placed among the files of papers in the office of the company, in the keeping of the secretary; and it further appears that the replies to these letters of Brown were copied in the letter-book of the company kept by the secretary. There is nothing to indicate that Leetch, in furnishing the data to Brown, was acting merely on his own individual account and responsibility, irrespective of his character and position as general manager of the company, and for its benefit. On the contrary, it would clearly appear that he was acting in the interest of and for the company, in his character of general manager, and that such conduct was within the scope of his authority as such general manager of the affairs of the company. Indeed, there is nothing in the case that would even suggest that he had any mere personal interest or object to subserve in what he did, apart from the interest of the company. He was manifestly acting for the company, and as its officer and agent, and the jury have so found by their verdict.</p> <p>On the 1st of March, 1894, the libellous article complained of appeared in “The Progressive Age.” In that article various things are said in reference to the plaintiff Lansden, and among others it is stated, that “ a Congressional committee has been investigating the Washington Gas Light Company. Complaints were lodged by some of the patrons of the company with the committee on the District of Columbia, which has jurisdiction in all matters affecting affairs connected with the capital city, and Congress ordered an investigation. Many witnesses have been heard on both sides of the question, and among them appeared Mr. Thomas G. Lansden, who had filled the position of superintendent with this company for a period of seven years prior to his resignation, in June of last year. This gentleman did not come forward, as might have been expected, to render such help as he could to assist his former associates over their present difficulties and to say a good word in behalf of the company with which he had so long been identified and by which he had been most generously requited; on the contrary, Mr. Lansden has arrayed himself within the ranks of those who sought to tear down and lay waste the business- •and emoluments of his former employers. Moreover, by reason of the nature of his testimony, Mr. Lansden has caused a report of his statements to be circulated the length and breadth of the land, and the subject matter contained therein is well calculated to do the utmost harm to gas interests everywhere. Mr. Lansden’s statements, as made under oath before this investigating committee, have been telegraphed from one end of the country to the other, and newspapers in many of the principal cities throughout the United States have copied the statements which have appeared in all Washington papers during the progress of the investigation. To what extent is best shown when we say that more than a score of newspapers containing Mr. Lansden’s statements about the cost of making and distributing gas have come to our notice since his testimony was given, and the end is not yet. The figures of cost supplied by Mr. Lansden are startling, to say the least, and more than one gas company will, we apprehend, ere long, find itself confronted with his figures and compelled to battle hard in an effort to overcome the bad effects on the public mind.</p> <p>“ It is because of the general interest that is likely to suffer for Mr. Lansden’s indiscretion that we give heed to the matter, not through a desire to extend special favor to the Washington company; nor is it because of any ill-will entertained by us for Mr. Lansden. If the cause of the company is just, as we believe it to be, it will come out of the investigation a victor. The present investigation is not the first in which Mr. Lansden has appeared as a witness. Only a year ago a similar inquiry, emanating from the same quarter, was instituted against the Washington Gas Light Company. Then Mr. Lansden appeared as a witness in behalf of the company. He at that time occupied the position of superintendent with the company. His testimony then and that of this year are so sadly at variance that we should be remiss in our duty if we permitted the occasion to pass without directing attention to these differences. Moreover, we should be guilty of withholding from gas managers information which will be of material assistance to them in breaking the force and effect of Mr. Lansden’s recent statement.</p> <p>“ Under a former resolution of Congress bearing date of February, 1893, Mr. Lansden- was called upon to answer certain questions bearing upon the reduction of the price of gas at Washington. We herewith give the questions propounded to Mr. Lansden during the investigation of last year and his replies thereto. This we follow with the interrogatories put to him and his answers during the present investigation.”</p> <p>The writer then proceeds to set out, in totidem verbis, for the purpose of showing the variant and conflicting statements in the testimony of the plaintiff, the interrogatories and answers of 1893, being those furnished by the defendant Leetch in his letter of February 12,1894, to Brown, and the interrogatories of 1894, being those, as we may suppose, that were furnished by Leetch in his letter of February 20, 1894, enclosing copy of the report of the committee of Congress, to be used by Brown. .</p> <p>The writer of the libellous article then proceeds:</p> <p>“ From the foregoing extracts of this witness’ testimony only one of two conclusions can be arrived at, and we are too sensible of the reader’s powers of analysis and feel too keenly for the witness to heap coals of fire on the head of one who, it is only too evident, has allowed his sense of justice to be distorted by real or fancied grievances. The testimony given by Mr. Lansden in 1893 states in effect that there is no way open to his company by which it could reduce the cost of manufacturing gas. In 1894 he tells the committee that, taxes and repairs added—items not considered in the inquiry of the previous year—the cost of gas delivered to the consumer could be brought within 70 cents, or about 18J cents less per thousand than he quoted as the lowest manufacturing and distributing cost the year before ; and yet Mr. Lansden must know that the generating apparatus at the Washington works is the same as when he filled the position of superintendent; that the cost of all materials used, coal and labor, are just the same, save only naphtha, which is now higher in price than when he testified a year ago.</p> <p>“ Every man must be the custodian of his own conscience, and it is not for us to decide how Mr. Lansden will reconcile himself to his present unhappy position. If the gentleman has given up all thought of again associating himself with a gas enterprise, possibly he is indifferent to the effect of his predicament, but if he still entertains an idea of continuing his former calling he should lose no time in setting himself straight in the eyes of his former associates. In view of the testimony, we can readily believe this will prove a most difficult undertaking; but there is always two sides to a story, and possibly Mr. Lansden may have in reserve some evidence that will enable him to sustain his present position. If so, our columns are open to him for such purpose.”</p> <p>[The second and third instructions granted on behalf of the plaintiff, over the objection of defendants, and which are referred to in the opinion of the court, are as follows :</p> <p>“ 2. If the jury shall find from the evidence each and every of the several questions of fact set forth and submitted to them in the foregoing first instruction in favor of the plaintiff, and if they shall further believe from the evidence that the figures as to the cost of the manufacture and distribution of gas set forth in the paper which has been referred to as the answers of Lansden in 1893, as they appear in said answers, were furnished Mr. Lansden from the books of the company for the purpose of being inserted in said paper and were not figures produced or arrived at by him personally, as to the cost of either such manufacture or distribution; and if they further believe from the evidence that the defendant Charles B. Bailey well knew that said figures were so furnished said Lansden from the company’s books, and that they did not represent said Lansden’s own estimate or knowledge of the cost of either the manufacture or the distribution of gas, but that the said defendant, Bailey, nevertheless, on being shown by Mr. Leetch the letter of E. C. Brown of February 12, asking information in reference to the testimony given by Mr, Lansden in 1894, called the attention of said Leetch to the said so-called Lansden answers of 1893, and gave them to him for the purpose of enabling him to communicate them to said Brown as Lansden’s own statement in regard to the actual cost of such manufacture and distribution, and as tending to impeach his sworn testimony before the committee of Congress in 1894, and maliciously intended that the same should be communicated to said Brown for the purpose aforesaid, then the jury would be justified in finding for the plaintiff against the defendant Bailey as well as against the defendants Leetch and the Washington Gas Light Company.</p> <p>“ 3. If, under the testimony and the instructions of the court, your verdict shall be for the plaintiff as against any of the defendants, then it is your duty to award the plaintiff as against such defendants such damages as you believe from the evidence shall fully compensate him for the injuries, if any, suffered by him from the conduct of said defendants complained of in the declaration and which you shall find sustained by the proofs, in estimating which damages you may consider the language used in the publication complained of, in so far as you shall find from the evidence that said language was inspired by said defendants, the nature of the charges and imputations conveyed by said language, the vehicle used in giving publicity to the same, and the mental suffering, if any, which you find from the evidence has thereby been occasioned to the plaintiff.”—Reporter,.]</p>

Hearing on an appeal by the defendant from a judgment on verdict in an action for money had and received, to recover money paid under a mistake of fact. The facts are sufficiently stated in the opinion.

Hearing on an appeal by a defendant assignee in a suit by creditors from an order directing a writ of fi. fa. to issue upon application of complainants. The Court in its opinion stated the case as follows: The suit, in which the appeal now before us was taken, was instituted to vacate a deed of assignment made to the appellant, Samuel Bieber, by one Justus Hollander, one of the defendants in the cause. Hollander was engaged in the clothing business in the city of Washington.

<p>Hearing on a petition by complainant for the allowance of an appeal from an interlocutory order denying an injunction and discharging a rule and restraining order previously granted against the defendants.</p>

<p>Hearing on a motion to dismiss an appeal from a decision of the Commissioner of Patents in an interference proceeding.</p>