We think, therefore, that there was error in the refusal of the court to grant the second instruction requested by the defendant; and for that error we are constrained to reverse the judgment and to remand the cause for a new trial. And it is so ordered.

On February 14, 1895, Mr. Lewis, for the appellee, filed a motion for a reargument of this cause, and, in default of a a rehearing being granted, for a modification of the judgment.

On March 5, 1895, Mr. Justice MORRIS delivered the opinion of the Court:

A petition for rehearing has been filed in this cause; and in default of a rehearing, for a modification of the judgment of this court.

We are unable to find in the reasons for a reargument assigned by the petitioner any good ground to review or revise our decision. But a modification of the judgment in the manner requested by the appellee is perfectly proper.

As appears from our opinion heretofore filed in the cause, the verdict of the jury and the instructions of the court, so far as they apply to the first count of the declaration, in our opinion, are entirely correct, and in accordance with our former decision, when the case was before us on demurrer. But the second count differs from the first in seeking the recovery, not of the difference of price alleged to have been fraudulently appropriated by the appellant, but merely of the commissions stated to have been improperly charged on account of the fraud. We have held that, without an amendment of the declaration, the limit of recovery upon this count cannot amount to more than the amount of the commissions charged. The verdict of the jury gave the appellee both the commissions and the difference of price. Fortunately the verdict was to a certain extent special. It not only specified the amount of recovery upon each count; it also specified, with reference to the second count, the amount of

the commissions and the amount of the difference of price in separate sums. And it therefore contains in itself the elements whereby, at the option of the plaintiff, it might be corrected. Ordinarily an appellate court cannot divide and segregate the verdict of a jury, and hold it good in part, and in part bad. But as the record before us shows that the ruling of the court below, which we have held to be erroneous as not warranted by the declaration, has reference exclusively to the second count of the declaration, and to the recovery under that count of the amount of difference of price alleged to have been fraudulently retained from the appellee, and as the record also shows the precise amount of the recovery by the plaintiff under that erroneous ruling, and as the appellee now offers to remit the amount so erroneously awarded to him, rather than amend his declaration so as to justify his recovery of that amount in another trial, it is plainly in the interests of justice that the remission should be allowed; and we think that, under the circumstances of this case, there can be no doubt as to the right of this court, under the law of its creation, to direct a modification of the judgment of the court below so as to give effect to this remission.

Upon the filing, therefore, of a remittitur by the appellee in this court of the sum of $770.89, which is the sum shown by the record to have been allowed by the jury under the second count of the declaration, as the difference between the price received by the appellant and that paid by him to the appellee, the judgment of the court below will be affirmed for $1,041.92, the residue of the amount of the verdict, with costs.

On March 11, 1895, Mr. Moulton and Mr. Farnsworth, on behalf of the appellant, filed a motion to retax the costs of the appeal.

Mr. Lewis and Mr. Berry, for the appellee, opposed the motion.

On March 20, 1895, Mr. Justice MORRIS delivered the opinion of the Court:

We first reversed the judgment in this case for error in the allowance of a recovery on the second count of the declaration of a greater sum than we thought was justified by the allegations of the declaration. Then, upon the motion of the appellee to be allowed to file a remittitur here of the amount which was shown by the special verdict of the jury to have been the result of such error and which was separable from the rest of the verdict, there being no other error in the cause, we affirmed the judgment, with costs, upon condition that the appellee would here file such remittitur. This having been done, the appellant now comes with a motion to be relieved from the costs of the appeal, and that the costs be retaxed.

The ground of the motion is that there was, in fact, error in the rulings of the court below which compelled the appellant to bring the cause to this court; and that, if the appellee had filed his remittitur in the court below the appellant would not or might not have brought the cause to this court for the correction of the error. Against this the appellee contends that the appellant claimed errors as to the whole judgment; that the appellee was substantially the prevailing party; and that the judgment having been affirmed, it should, as of course, carry costs with it.

There is plausibility in both claims. But without attempting to decide between them, we think that this is a cause in which, as it seems to us, justice can best be done by dividing the costs of the appeal equally between both parties. And it is so ordered.

5 Ct. App.-22

WOARMS v. HAMMOND.

EQUITY; EQUITABLE LIENS; TRUSTS AND TRUSTEES; DISCOVERY; CONTRACTS.

1. When by an agreement in writing one party agrees with another to give a deed of trust upon all of his real estate in the District of Columbia if certain of his promissory notes shall not be paid on maturity, such other party is entitled, upon default in the payment of the notes, to an equitable lien upon such real estate; and equity will in such a case supply a trustee to enforce the lien and fix the terms of sale of the property.

2. Although the bill to enforce such an agreement calls for discovery by the defendant of all of his real estate when the land records are open to complainant, and although it alleges that defendant neglected after default and upon demand to execute the deed of trust, instead of that he refused so to do, it will not for those reasons be held demurrable.

No. 414. Submitted January 21, 1895. Decided February 5, 1895.

HEARING upon an appeal by the complainant from a decree dismissing a bill for the enforcement of a contract. Reversed. The COURT in its opinion stated the case as follows:

This is a suit in equity in which the appellants, Albert L. Woarms, Louis J. Lesser, Martin S. Fechheimer and Sarah Hess, who were the complainants in the court below, seek the specific enforcement of a contract made by the appellee, William A. Hammond, to give a lien on real estate for the security of an existing indebtedness. The bill was dismissed by the court below upon demurrer, and from the decree of dismissal the complainants have prosecuted the present appeal.

From the bill of complaint, it appears that the complainants, who were vendors of artistic furniture and house decorations in the city of New York, under the firm name of D. S. Hess & Company, had furnished to the defendant a large amount of the materials in which they dealt; and

that on January 2, 1891, the defendant was indebted to them on that account in the sum of $16,084.08. For this sum he executed and delivered to them on that day his six several promissory notes, each for $2,680.68; and to secure the payment of the same assigned to the complainants a policy of insurance on his life, issued by the Connecticut Mutual Life Insurance Company, of Hartford, in the State of Connecticut. It was also agreed between the parties that, in the event of default in the payment of any two of said notes, if the complainants should so elect and request in writing within ten days after such default, the note or notes remaining unpaid should be secured by deed of trust upon all the real estate then belonging to the defendant within the District of Columbia, and the defendant covenanted to execute such a deed of trust.

On January 5, 1894, one of these notes remaining unpaid, both as to principal and interest, the defendant entered into another agreement in writing with the complainants, apparently of the same tenor as the preceding one. This agreement, which forms the basis of the present suit, is as follows:

"Whereas, under the agreement made and entered into by and between Dr. William A. Hammond, of Washington, D. C., of the first part, and D. S. Hess & Co., of New York, of the second part, dated January 2, 1891, the last note therein referred to, payable in thirty-six months from the date of said agreement, with interest, has not been paid; and whereas a request for an extension of time for such payment has been made by the said party of the first part; and whereas, in consideration of the premises and of the sum of one dollar by each party hereto to the other paid, the receipt whereof is hereby acknowledged, it is agreed by and between the said Dr. William A. Hammond, party of the first part, and D. S. Hess & Co., party of the second part, that another note made by the said party of the first part, payable to his own order four months from date hereof, for the sum of thirty-one hundred and seventy-one dollars, with interest