Alexandria gazette. [volume] (Alexandria, D.C.) 1834-1974, 1879-01-25
TIE .9RLfIY'GTG.1' CAsE.

prssiIiug, resumed tic consideration Of tie
Arlington case iiis morning. The counsel Wero
all present, as hera:o!t r, named, aad the atten.
dance outside The bar was as large as On the
previous days.
After scmc little delay, cluscd by waiting for
counsel,
Judge Wiiloughby said that they wished it
understood that the advertisement of sale,
which had been Introduced 10 evidence was in
fer ell purposes AID not cotfned to a special
0lc.
NIajor Page agreed. Major Page also SUBJ
mitted that the will of G. w. 2. Gusts could
not be found ADD was lest.
The fact was admitted, subject 10 defendants
objections.
The couose on both sides then read the in-
structons which they proposed to offer.
The plaintiffs Instructions were IS follows:
/. If the jury believe from tho evidence that
P. r. Feudall, for and on behalf of the owner
of the property in controversy, prior to the sale
,hereo! by the tex commissioners, on the
ll.h day ct January, 1864. offered TO pay The
amount chsrgeablc ou said property under the
SC; Of Congress, entitled ''ao act for the collcc
ton of drec! taxes in insurfecionary dis
tricts, within the United States, and for other
purposes" approved juno lib, 1862. AID The
gets ameodatory thereof; ard that said offer
vas refused by said commissioners because it
was cot made By the oTncr in person, then said
sale was unauthorized AID conferred DO title
upou the purchaser, and they must find for the
plaintiff, ifthey believe from the evidence tbs:
but for said s,lo he has coed title 10 such PROF.
crty.
9. If The jury believe from the evidence that
- n |
established aod announced, aud uniformly fol-
lowed O general rule, under which they refused
to receive CD property which had been adVertis'
cd for sa!e from any one but the owner, or
psr!y 10 Interest, 10 person, the amount charge.
st!e upon said property, by virtue CT the said
acts Of Congress. then said lu|c dispensed With
the necessity OF tender, God 10 abseGco CT
proof to the contrary, the law prcsumes that
said amount would have been paid, and the
court insttuc's the jury that upon such state
of facts the sale Of the property 10 controversy
made ou the said lllh day Of January. 1864.
vas unauthorized aud conferred 90 title upon
tho purchaser. aud they must hod for The plain
tiff II they believe, from the evidence, that but
for said sale lie has good title to said property
The defendants Instructions were:-
|. Any rule OF practice of tho commissioners
not to receive taxes from any one but the OVID
er or ogucrs OF the lands 10 person did not alb
solve the OWccr CT 0wucrs It tue land in con
trovarsy from psyug or cff:riog 10 pay, either
In person or By en- agent, the amount OF the
taxes fsel ,hcraoa by the commissioners, with.
10 the time prescribed ly Law 10 cr3ec 70 dis
charge the land from tax.
.. The certificate Of sale produced BY the
Defendants is prims fsca evidence OF the ISLE
and the statements thereto contained are to be
taken A. true except as 10 those which may be
shown 10 be untrue by the evidence produced
10 this cause.
.. Aug rule or practice cfthe tax c)mBissioT-
crs no: to receive tayesiIom any one but the own
or or owrcrs OF the lands charged with the taxes,
IL person cannot be regarded a. material to tho
merits of this case, unlcss tho jury shall believe
from the evidence that i: vas in Consequence
of such rule or practice hat the taxes on the
property in controversy were not paid or teDd.
cred prior 10 tho sale aud within sixty days at
Ter TIC amount o! the sane had been fixed By
the Commissioners.
i. Tie certificate of sale Introduced by the
Defendants is evidence Of the regularity and
validity ui the sale. and as snch evidence can be
IF .cied only by establishing tho fact that the
10 controversy Vas not subleC:to taxes
or that tho taxes thereon had been paid pre-
vious to the sale, or that The property had
been redeemed according TO law.
Judge Wiilouehby thought this the proper
time 10 submit tho objections as to the occupancy
by the United States, as heretofore decided by
the Court. He therefore submitted iGstruc-
lions 10 favor of the defendants Oh that ground
both generally and separately fer tho cemetery,
Fort Wkipp!c and the Freedmen 3 VllIage. The
principal point in these Instructions was as to
e lngo nInrf
claimed that they held only by authority OF the
OF tho Z. S. TIC Court would rccolIcct that it
had decided heretofore that this was a statutory
been further held that this suit could &c sns-
tanned without Invading the sovereign rights of
the United States, AID was substantially witt
Of right. lie read from q Tucker, page ITO,
edition of 1887.
The court reminded the counsel that be had
decided that this was neither purely writ OF
right nor OF q .ctment, but nearer the former.
1t was not stated that this was writ ct right
but that idea was, on the contrary, eombatted
by the court. This action would be more 30
curstely described as substitute Tor the writ
of right.
Judge Wiougbby wished 10 get at the sub
stance and pot the form. The real question
was one of right of property and the defendants
claimed no such rights. 1t seemed to him alb
surd to sue these parties when the United States
was really the defendant.
The Court cited the case of Moigs ct ais. Va.
McClupg.
Judge Willoushby said bis point Yves 20!
rsiss d in that case.
twas then suggested that time be allowed
cyups i to ccnsult over the Instructions.
Also that tho Court would wish time to con.
slider The psp:rs offered and that the jury might
be adjourned over until Monday.
The Court said be ought probably to take
timo to consider the instructions, however ready
be might bo to decide upon them.
The second set of instIu ,tions las to the w.:
S. btins the real oceupants) were then overruled
aui the Court toak recess, after adJournlDg
he jary over until Monday morning.
The Court reassembled at 100 p. 10:
The couoscl for the plaintiff submitted lr-
s,rucions substantially as stated in the morning
Maar Page said that as the defendants sec
oud instruction was 10 tho words OF the statute