Volume 21 — Appeals, District of Columbia

<p>Hearing on an appeal from a decision of the Commissioner of Patents in an interference case.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This is an interference case on appeal from the Commissioner of Patents involving priority of invention of an improvement in oil burners.</p> <p>The issue is defined in four counts, as follows:</p> <p>“ 1. In a burner the combination with a trough and perforated tubes situated thereabove and forming a combustion chamber, said trough having at its bottom a liquid-containing portion, and an enlarged upper vapor-receiving space, and a vertically disposed lighting member seated in the liquid-containing portion and extending upward between the walls of the enlarged vapor-receiving portion to form a vapor space at the side of the lighting member.</p> <p>“ 2. In a burner the combination of a trough and perforated tubes situated thereabove and forming a combustion chamber, a lighting member vertically disposed between the-upwardly disposed walls of the trough, said trough having a contracted lower portion in which the lighting member is seated, and a vapor space above the contracted portion at the side of the vertically disposed lighting member.</p> <p>“ 3. In a burner, the combination of a trough and perforated tubes situated thereabove and forming a combustion chamber, said trough being contracted at its lower portion, and a vertically disposed lighting member seated in said contracted portion and extending upward between the upwardly disposed walls and constituting a vapor space in the upper portion of the trough at the side of the said lighting member.</p> <p>“ 4. In a burner, the combination of a trough and perforated tubes situated thereabove and forming a combustion chamber, said trough being contracted at its lower portion and being provided with a wick seated in the contracted portion of the trough and extending upwardly between and distant from its upwardly disposed walls.”</p> <p>Appellee, William H. Wilder, is the senior party, having the date of April 19,1897, for his application, as against that of August 23, 1897, for his opponent’s, Atwell J. Blackford.</p> <p>It is apparent from the record, as conceded by counsel respectively, that the award of priority turns upon the effect that may be given to the evidence relating particularly to four of the many exhibits of the parties, as proofs of conception and reduction to practice of the invention of the controversy. These are exhibits A and D of Blackford, upon whom is the burden of proof, and exhibits E and D of Wilder. The evidence tends to show that Blackford’s exhibit A — now in the shape of a complete stove — was constructed early in 1895; that Wilder’s exhibit E was constructed in April, 1896; that Blackford’s exhibit D was constructed in November, 1896; and Wilder’s exhibit I) in January, 1897. The conclusions of the three tribunals of the Patent Office concerning the evidence relating to these exhibits are widely variant.</p> <p>The examiner of interferences held that Blackford’s exhibit A and Wilder’s exhibit E both embodied the invention of the issue, and were reductions of the same to practice — the former in February and the latter in April, 1896. In accordance with this he awarded priority to Blackford.</p> <p>The examiners-in-chief, on appeal, disagreed, the majority deciding in favor of Blackford. All of them agreed, however, in overruling the examiner of interferences in his conclusion as to Blackford’s exhibit A.</p> <p>The majority of the board made the following statement of the case as presented for decision: (pp. 281-282).</p> <p>“ These issues are very specific.’</p> <p>“ The records of the two applications prove by the refusals of claims made for the burner, bowl, or trough alone, and for the burner with any kind of combustion apparatus, and by other facts disclosed in them, that, as should be expected, every particular of each count of the issue is necessary to its patentability.</p> <p>“ The elements of each count include (1) a trough having a contracted lower portion and (2) a vertically extending lighting member seated in the lower contracted portion of the trough and extending upwardly between the walls of the trough.</p> <p>“ Counts 1, 2, and 3 require that there shall be a vapor space at the side of the lighting member, and count 4 calls for the wick (the lighting member of the other counts) extending upwardly between and distant from the upwardly disposed walls of the trough.</p> <p>“ This means that counts 1, 2, and 3 call for a vapor space at the side of the lighting member, and that count 4 calls for two vapor spaces, one on each side of the lighting member.</p> <p>“ There is a further and essential feature of each count which is expressed most clearly in count 1, but must be covered in all of the counts, namely, that the trough is an oil-containing trough. By this is meant one that maintains a body of oil in and the length of a trough if the trough be straight, or around the trough if the trough be annular, during the whole time when the burner is in full heating action.</p> <p>“ Furthermore, although not expressly put into either of the counts, each of which is broad enough in language to cover an apparatus in which the oil is lifted to the vaporizing point entirely by the capillary action of the wick — which from the record appears to be an unpatentable device — the issue must, by the tenor of both specifications and by the treatment of their action by the examiner and by the arguments of the applicants during the prosecution of their applications, be restricted to burners which evaporate the oil from its surface by the heat of the walls of the burner.</p> <p>“ Both of the specifications of the included applications set forth this action of the burner as its essential action, and no burner which does not have this action is within the invention of either application so far as expressed by these issues. Also the briefs for each party have the same statement of the mode of action of the burners of the issue.</p> <p>“ Wilder has priority of record at. the date of [the] filing of his application, of which the present application is a division. That date of record priority is April 19, 1897.</p> <p>“ The burden is on Blackford to put his date of invention back of that date.</p> <p>“ Blackford, in his preliminary statement, pleads conception in the latter part of the year 1895 and reduction to practice in the early part of the year 1896, and subsequent manufacture and sale.</p> <p>“ Blackford furnishes in evidence no sketches or drawings. He has his exhibits B, O, A, H, and D, made, as he testifies, in the order here arranged. Exhibit B is merely a trough, exhibit C is a burner and oil reservoir, exhibit A is a complete stove, exhibit H is a trough, and exhibit D is another complete stove.</p> <p>“ He also has exhibit G, which is a complete combustion chamber composed mainly of perforated tubes. It is the ‘ combustion tubes ’ of each count of the issue.</p> <p>“ It is testified to by Blackford as known before 1895 in use in other types of oil stoves. It is proved that a combustion chamber of this sort was used with exhibits 0 and A.</p> <p>“ Exhibit D has its own combustion chamber of the same general type.</p> <p>“ Blackford testifies that his exhibit B was made in 1895 and was never operated; that his exhibit C was made in January, 1896. Of exhibit 0, Blackford testifies that he considers it as ‘ the wick type of stoves ’ —i. a., that type in which a wick feeds the oil to its end where the vapor is developed and burned. In the present case the wick so operates as a lighting member, but thereafter the vapor is developed and rises from the surface of a body of oil.”</p> <p>Having agreed upon rejecting the claim founded on Blackford’s exhibit A, they then took up his exhibit D, which they found to have been constructed and successfully operated in November, 1896. This, they said, “is the only exhibit presented by either party as of date prior to his application, which impresses us at sight as having both the construction and operation of the present issue. With the specific issue and its specific mode of operation in mind, one is, at slight inspection of it, compelled to say: That is the issue, in structure and mode of operation.”</p> <p>This conclusion shifted the burden of proof to Wilder. His exhibit E was constructed in April, 1896. As produced it is incomplete. There is no vertically disposed lighting member shown, but the bowl or trough of the burner is adapted to hold oil and has the contracted lower portion required by the issue. Bearing in mind the specific narrowness of the issue the majority of the board regarded it necessary to show, in addition to the specific trough thereof, the existence and use of the vertically disposed lighting member or wick, seated in the contracted, liquid-containing portion of the trough and having a vapor space at its side above the contracted portion.</p> <p>After reviewing the testimony at length, they expressed a conclusion as follows:</p> <p>“ There is no proof concerning this exhibit E that indicates that Wilder had advanced any further in producing and using it than an idea of an apparatus for both feeding oil into a V-shaped burner and keeping it there and lighting it there by the old flat or round or other shaped piece of asbestos, just as was done in the round-bottom oil-gas vapor burner, the difference being that he proposed, after heating the bowl by the oil and the piece of asbestos, to keep oil in the bowl, while the old oil-gas stoves got the burner so hot and so fed the oil that the oil flashed into vapor when it struck the bowl. We cannot conclude that this experiment of exhibit E included the structure of this issue or one having its mode of operation.”</p> <p>They next took up exhibit D (of Wilder) and after expressing the opinion that it did not in fact contain'the invention of the issue, felt themselves constrained, by its connection with the specifications of patent to Wilder issued on the original application of which this is a division, to hold that it comes within the mode of operation of the present application. The earliest date accorded by them, however, to this construction was late in December, 1896, or early in January, 1897; hence, as it had been preceded, in their judgment, by Blackford’s construction of November, 1896, their decision was for him.</p> <p>Their opinion is of great length and reviews the important evidence in detail.</p> <p>The remaining examiner-in-chief expressed his dissent from the conclusion of his associates at considerable length also. Ilis conclusion was that Blackford’s exhibit D was not completed in tbe fall of 1896, and that it was not a reduction to practice of tbe invention of the issue. He found that Wilder bad a conception of the invention “ in the early part of 1896, and reduction to practice certainly as early as January, 1897,” as shown by bis exhibit E and tbe evidence relating to its construction. In order to reach this conclusion, be said:</p> <p>“ This issue is broader than it is stated to be by my associates, and it is satisfied by any liquid-bolding trough which is not filled by tbe wick at its upper portion, and which is restricted at its lower portion so as to limit tbe evaporative surface of the contained oil to approximately tbe requirements of combustion. It is immaterial whether the evaporation takes place from the surface of tbe oil or from the surface of tbe wick, or from both, as long as the surface which sustains the oil is duly limited in its area, and operates to expose to tbe beat of the flame only a relatively small surface of oil. An examination of tbe records of tbe applications of both parties shows that this is tbe breadth of tbe invention to which tbe interfering claims were intended to and do apply. Viewed in this light, said claims and tbe corresponding counts of tbe issue are distinctly applicable to Wilder’s exhibit E.”</p> <p>Tbe case next came before tbe Commissioner who reversed the examiners-in-chief and adjudged priority to Wilder.</p> <p>Tbe Commissioner inclined to tbe view that Blackford’s oxhifcit D was constructed “ in tbe fall of 1896,” and that the trough may have contained oil when in operation; but was not satisfied that its trial demonstrated tbe practicability of tbe invention necessary to a reduction to practice.</p> <p>Taking the same broad view of the issue that was taken by the dissenting examiner-in-chief, he concluded: “It is believed that the evidence in regard to the making of exhibit E shows more clearly a conception of this invention by Wilder than does the making of exhibit D by Blackford. If D is effective for Blackford, E must be held to be equally effective for Wilder. This being true, Wilder is the first to conceive and the first to reduce to practice.” On account of this conclusion he did not deem it necessary to determine the exact date of Wilder’s exhibit D.</p>

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

Hearing- on an appeal from a decision of tbe Commissioner of Patents in an interference case. The Court in the opinion stated the case as follows: This is an appeal from a decision of the Commissioner of Patents in an interference case wherein the subject-matter of controversy is an improvement in type-writing machines in the shape of a card-writing attachment, the several features of which are stated in the issue of interference in sixteen several counts, as follows: “ 1.

<p>Hearing on an appeal from a decision of tbe Commissioner of Patents in an interference case.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This is an appeal from the Commissioner of Patents in an interference case. The subject-matter of controversy is an improvement in singeing-machines used in connection with the manufacture of stockings; and it has been stated by the Patent Office in two counts, as follows:</p> <p>“1. In a stocking-singeing machine, burner-tubes arranged to direct their flames toward each other, a suitable former over which the stockings to be singed are stripped, whereby the threads or fibers thereof are stretched or spread apart, the means for bodily moving said former and surrounding stockings between the flames of the burner-tubes, substantially as described.</p> <p>“ 2. In a stocking-singeing machine, a pair of burner-tubes arranged to project jets of flame in opposite directions, a suitable former over which they are supported in a flat condition, and means for feeding said former and surrounding stocking through the jets of flame, whereby both sides of the stocking are singed at one operation.”</p> <p>The appellant, Robert Meyer, holds a patent for the invention which was issued to him on January 16, 1900, upon an application filed March 16, 1899. The application of Max Sarfert was filed on March 10, 1900, nearly two months after the issue of Meyer’s patent, with actual knowledge of the issue of that patent and with the avowed purpose of bringing on an interference.</p> <p>In his preliminary statement, Sarfert alleges conception of the invention in issue in July of 1897, and reduction to practice in March of 1898. Meyer alleges conception and disclosure in April of 1898, and reduction to practice in May of 1898.</p> <p>TJpon the testimony in the case all three of the tribunals of the Patent Office, notwithstanding the patent held by Meyer, held that Sarfert was entitled to judgment of priority of invention. In the board of examiners-in-chief, however, there was dissent. One of the members filed an elaborate opinion in which he reached the conclusion that Meyer was the prior inventor.</p> <p>From the decision of the Commissioner Meyer has appealed to this court</p>

<p>Hearing on an appeal from a decision of the Commissioner of Patents rejecting an application for a patent for an alleged process.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from a decision of the Commissioner of Patents, wherein, affirming the decisions of the lower tribunals of his office, he refused to allow a patent to the applicant Andrew C. Cunningham for the following claim:</p> <p>• “ The improvement in the art of coaling ships in the open water, herein described, the same consisting in making a flexible connection athwartships, or abeam, between the ship to be supplied and the ship from which the coal is to be taken at sufficient distance .apart to permit rolling and pitching of both ships without interference with each other, and creating sufficient lateral pressure between one of the ships and the surrounding water on the side toward the other ship to maintain them at such distance apart.”</p> <p>This claim is for an alleged process. It has been rejected, not because there is not invention in the device, but because, as it is held in the Patent Office, there is no true process here, but only the statement of the function of a machine or apparatus, for which a patent had already been allowed to the same applicant. The claim of the allowed application is this:</p> <p>“ The combination of a ship to be coaled, a collier or supply-ship, a flexible connection athwartships between said ships of sufficient length to permit both ships to roll and pitch without interference with each other, and means for creating a lateral pressure between one of the ships and the surrounding water on the side toward the other ship sufficient to maintain them at such distance apart.”</p> <p>This calls for an apparatus or means for effecting a certain purpose: the claim in the present case covers the method of effecting the purpose. The question is whether this latter is a true process, or merely the function of the mechanism already patented or allowed for patent. If it is a true process, it is entitled to be protected by patent; if it is merely the function of the apparatus previously allowed for patent, it is sufficiently covered by that allowance.</p>

The Court in the opinion stated the facts as follows: This case comes to us from the Patent Office. It is an interference case, wherein the subject-matter of controversy is a process of refrigerating and liquefying atmospheric air or other gases. The invention is stated in several counts or claims, as follows: “ 1.

Hearing on an appeal by tbe defendants from a decree of the Supreme Court of the District of Columbia in a suit in equity vacating a deed of trust upon certain real estate and enjoining a sale thereunder.

<p>In error in the police court of the District of Columbia.</p> <p>The Court in the opinion stated the case as follows:</p> <p>In this case a writ of error was allowed and directed to the police court of this District, to bring up for review the judgment of that court rendered against tbe defendant therein, Albert E. Beitzell, upon an information charging him with the violation of the 36th paragraph of section Y of the act of Congress of July 1, 1902, entitled “An act making appropriations to provide for the expenses of the government of the District of Columbia for the fiscal year ending June 30, 1903, and for other purposes.”</p> <p>The information charges that the defendant on the 1st day of July, 1902, and on divers other days and times between the first mentioned day and the 15th day of September, 1902, in the city of Washington, in the District of Columbia, did engage in the business of a brewer’s agent, to wit: the business of acting as agent for the Evans Ale Brewing1 Company, without first having obtained a license so to do and paying the license tax therefor, before engaging in said business, contrary to the act of Congress, etc.</p> <p>Tbe plea of not guilty was entered, and the case was tried before the judge upon an agreed statement of facts. ' As will be observed, the information does not allege that the Evans Ale Brewing Company was a business company located and doing business in the State of New York; hut such is shown to be the case by the agreed statement of facts.</p> <p>By the agreed statement of facts, it is shown that Beitzell, the defendant, “-was the local agent of O. H. Evans & Sons, brewers, whose brewery and offices are located at Hudson, Columbia County, New York, and who were licensed to do business in the State of New York. The Evans Company has no store, salesroom, warehouse, storage plant, or other place for selling their goods in the District of Columbia, and in fact keeps no goods whatever in stock in the District of Columbia. Beitzell has continued to be their agent since the passage of the act of Congress of July 1, 1902, but has never taken out a license as a brewer’s agent under the provisions of that act.</p> <p>“ The way in which Beitzell transacts the business of Evans & Sons is as follows: He calls upon the local liquor</p> <p>dealers, saloon men, etc., and solicits orders for Evans’ ales and porters. These orders when secured, he either forwards directly to the brewery in Hudson, New York, or else the orders are forwarded by the purchaser on cards furnished by the brewery and obtained from Beitzell by the purchaser. These orders are filled at the brewery in Hudson, New York, and the goods are billed directly from the brewery to the purchaser, in his name, and in a separate original package, and are delivered directly to the purchaser by the railroad company on their receipt in the District of Columbia. There is no breaking of bulk on the arrival of the goods in the District of Columbia, and the goods never come into the hands of Beitzell, and are never under his control.</p> <p>“ Sometimes Beitzell collects for the goods from the purchaser, while in other instances the purchaser remits directly to the brewery in Hudson, New York; this depending upon the option of the purchaser. Beitzell is paid for his services by a commission on the amount of the orders received and filled by the brewery. Beitzell has no place of business in the District of Columbia for the sale or storage of the goods of Evans & Sons, or any other brewing company. Evans & Sons are the only brewers represented by Beitzell in the District of Columbia.”</p> <p>Upon the reading of this agreed statement of facts in evidence, there being no other evidence offered, the defendant moved the court to rule that, as matter of law, the defendant was not guilty, because the act of Congress, under which the defendant was charged in the information, did not and could not apply to such a .state of facts as was therein set forth, without violating the Constitution of the United States, and therefore the defendant should be adjudged not guilty. But the court overruled the motion, and found the defendant guilty; and thereupon imposed a fine of five dollars upon him, and in default of payment thereof sentenced him to imprisonment for the term of fifteen days. It was to the refusal of the court to rule that the defendant, upon the agreed state of facts, was not guilty, that he took an exception, and obtained a writ of error to have the ruling reviewed by this court.</p>

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

Hearing on an appeal from a decision of the Commissioner of Patents in an interference case. The Court in the opinion stated the case as follows: This is- an appeal from the Patent Office, from a decision of the Commissioner of Patents, rendered in a matter of interference between the application of Robert B. Dashiell, filed May 27, 1898, and the patent issued to Vernon O. Tasker, February 22, 1898, on an application filed November 17, 1897.

Hearing on an appeal from a decision of tbe Commissioner of Patents in an interference case. The facts are sufficiently stated in the opinion.

<p>Hearing on an appeal from a decision of the Commissioner of Patents in an interference case.</p> <p>Tbe facts ¿re sufficiently stated in tbe opinion.</p>

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

Hearing on an appeal (specially allowed) from an order dissolving a temporary restraining order granted on a bill in equity to enjoin a sale under a chattel deed of trust.

Hearing on an appeal by the defendants from a judgment of the Supreme Court of the District of Columbia-upon the verdict of a jury in an action against insurance brokers to recover damages for negligently placing fire insurance.

<p>Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia upon the verdict of a jury in an action to recover damages for injury to deposits of building sand upon the bed of Rock Creek.</p> <p>The Court in the opinion stated the case as follows:</p> <p>The appellee, Evan Lyons, was the owner of a narrow tract of land in the District of Columbia adjacent to the city of Washington, wherein was included a part of the bed of Nock Creek about three-quarters of a mile in extent. A dam constructed across the creek formed a pond from which water was carried by a mill-race to a mill near the south end of the tract. In this pond a considerable amount of sand useful for building purposes had accumulated from year to year prior to the year 1888, from the sale of which the appellee derived considerable revenue.</p> <p>The appellee’s ownership extended only two or three feet beyond the west side of tbe creek. Adjoining and beyond him to the west and northwest and extending some distance above the dam and pond was a tract of land owned by John W. Thompson, hilly and irregular in its nature, and traversed by two ravines, which received drainage from the surrounding slopes and opened upon the creek. One of these ravines, and the larger of them, near to which was a disused quarry, opened upon the creek only a few yards above the dam. It ran back about one thousand feet from the creek, rvas of the average width of about four hundred and fifty feet and about sixty feet in depth at the middle of it, and had no regular flow of water in it beyond that from a small spring inclosed in a sunken barrel. The other ravine carried a small stream of water which flowed into the creek.</p> <p>In the year 1888 Mr. Thompson caused his land to be graded for use as building lots in view of the extension of th e city of Washington. The work of grading was commenced about the 20th of February in that year, and lasted about eight months. It is stated to have been done by an experienced contractor under the superintendence of skillful engineers. In the course of it loose earth amounting to about twelve hundred or fifteen hundred cubic yards was put into the ravine where the spring was, the spring being first inclosed and the water from it being carried by pipes to the face of the hill, whence it was discharged into the creek. The purpose was to fill the ravine and to bring it to a level with the adjacent land. Earth was also, deposited near the more northern ravine, but not in it.</p> <p>During the progress of the work light rains fell, which took up the loose earth in solution and carried it down into the creek, where it was deposited in large quantity as mud upon the.appellee’s sand beds, with the result that the sand beds were greatly injured and their usefulness to the appellee almost destroyed. The appellee thereupon instituted suit at common law in the Supreme Court of the District to recover damages for the injury.</p> <p>The original declaration which was filed on February 13, 1891, alleged negligence on the part of the defendant Thompson in the matter of the filling of the ravine. Upon this declaration an abortive trial seems to have been had. Subsequently, on December 1, 1898, by leave of the court, the declaration was amended by the addition of .a second count from which the allegation of negligence was omitted. To this second count there was a demurrer, which was overruled, and then there was the general issue pleaded to the whole declaration and to each count severally, and the parties went to trial.</p> <p>At the trial, after testimony had been adduced on both sides, the presiding justice, being- of opinion that the plaintiff could not recover, unless there was negligence shown on the part of the defendant, directed the jury to return a verdict for the defendant on the second count; but, being also of opinion that there was sufficient evidence to go to the jury upon the question of negligence on the part of the defendant, submitted the case to the jury upon the first count of the declaration. Before the trial, however, John W. Thompson had died; and the present appellant, the American Security and Trust Company, his executor, was substituted in his place.</p> <p>The jury returned a verdict in favor of the plaintiff, upon which there was judgment; and the defendant has appealed. The' ground of appeal is that there was no evidence in the case tending to show negligence on the part of Thompson;' and that, therefore, the jury should have been instructed, as prayed by the defendant, to return a verdict in favor of the defendant.</p>

<p>Hearing on an appeal by tbe defendants from a decree of the Supreme Court of the District of Columbia, in equity, charging a trust fund with the payment of an annuity.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This is an appeal from a decree charging the estate of Nancy Darling and Charles Tiernan Darling, held in trust for them by the Washington loan and Trust Company under the will of their mother, Susan Gay Beatrice Spranger, deceased, with the payment of the sum of $50 per month to the appellee, Flora Adams Darling, during her life.</p> <p>The following facts appear from the allegations and admissions of bill and answer:</p> <p>Joshua Pierce died in the District of Columbia in 1869, leaving a will wherein he devised and bequeathed to John B. Blake and Moses Kelly a large estate, in trust to pay over to one Joshua Pierce Klingle the issue and profits of the same during his life, and after the death of said Klingle to hold the same for the use and benefit of such of his children as might be then living, in fee and absolutely.</p> <p>Joshua Pierce Klingle died July 4, 1892, leaving but one child, Susan Gay Beatrice Klingle, who had become the wife of Edward Irving Darling on September 15, 1885. In February, 1889, Mrs. Darling began a suit against the trustees appointed by the will of Joshua Pierce, alleging breaches of trust and spoliation of the estate.</p> <p>In April, 1890, an injunction was granted against the payment of more than $100 per month to said Joshua Pierce Klingle until the said waste should be repaired. Moses Kelly resigned as trustee and O. O. Green was appointed in his stead. Immediately after the death of said Klingle, to wit, July 13, 1892, a decree was passed directing the conveyance of the entire estate remaining in the hands of the trustees to his daughter, Susan Gay Beatrice.</p> <p>Edward Irving Darling, who was the son of the appellee, died February 13, 1894. His widow married Dr. É. X. Spranger, March 6, 1895, and died in California, June 20, 1895. She left two infant children, Nancy and Charles Tiernan Darling.</p> <p>She left a will, of which Arthur A. Birney was made executor. This will was duly probated and letters issued thereon to the executor.</p> <p>She devised and bequeathed her estate to the Washington Loan and Trust Company, in trust, to collect and preserve the same, and pay certain sums for the support of her children aforesaid until they should attain the age of twenty-five years, at which time they shall come into the absolute possession.</p> <p>On May 20, 1898, the executor of the estate passed his final account and was discharged, after the transfer of the estate remaining in his hands to the trustee aforesaid.</p> <p>Tbe demand of complainant, whose bill was filed August 22,1900, is substantially this: In February, 1886, the complainant, at the request of her daughter-in-law, the said. -Susan Gay Beatrice Darling, began and for a long time there* after continued to investigate the management of the trust estate by the trustees _ under the will of Joshua Pierce, for the purpose of maintaining the proposed suit to prevent the waste of said estate. In so doing she acted as attorney in fact for said Susan Gay Beatrice and also spent considerable sums of money in the course of said investigation and the consequent litigation. Bor the performance of said services the said Susan Gay Beatrice Darling promised to pay her the sum of $10,000. On July 18, 1892, when said Susan Gay Beatrice Darling came into possession of her estate, she promised and agreed to pay to the complainant, Plora Adams Darling, the sum of $50 per month, during the life of the latter, in lieu of the $10,000 aforesaid, which promise and agreement complainant accepted as compensation for her said services. The first payment under said agreement was made at the time, and payments were continued until about three months before the death of the promisor.</p> <p>The answer of the defendant, founded necessarily on information obtained from others, denied the existence of any contract and the performance of any services, as alleged. It also charged that the demand had been presented to the executor, Bimey, and rejected by him in July, 1895; that no action had been brought against him to establish said claim, and that the complainant had lost any right that she might have had through her laches.</p> <p>On June 26, 1902, a decree .was rendered in favor of the ■complainant declaring the trust in her favor, as prayed, and directing the payment to her of said sum of $50 per month from June 22, 1902, during life, and also the sum of $3,320.50 in satisfaction of all monthly instalments accruing between June 22,1897, and June 22, 1902.</p>

Hearing on an appeal by one of several defendants (wha severed from bis codefendants) from an interlocutory order of tbe Supreme Court of tbe District of Columbia granting an injunction pendente lite in a suit in equity to be relieved from an attempted forfeiture of a lease, to enjoin proceedings to recover possession of tbe leased property, etc. Tbe Court in tbe opinion stated tbe case as follows: Tbis is an appeal from an interlocutory order of tbe Suprem'e Court of tbe…

Hearing on an appeal by tbe defendant, the District of .Columbia, from a judgment of the Supreme Court of the District of Columbia on tbe verdict of a jury in an action to recover damages for personal injuries. The facts are sufficiently stated in the opinion.

<p>Hearing on an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia on a verdict for tbe defendant directed by tbe court, in an action to recover damages for personal injuries.</p> <p>Tbe facts are sufficiently stated in tbe opinion.</p>

<p>Hearing on an appeal by tbe defendant from an order of tbe Supreme Court of the District of Columbia granting a preliminary injunction in a suit in equity to restrain an alleged infringement of a patent for a composition used for furniture polish. Reversed.</p> <p>The Court in the opinion stated the case as follows:</p> <p>The bill in this case was filed in the Supreme Court of the District by Philip Levi, on October 2, 1902, against the appellant, Fred Lane, to restrain the infringement of a patent.</p> <p>The bill alleges that complainant obtained a patent on February 18, 1902, from the United States for a composition described therein and known as “ The Ching Fow Piano and Furniture Polish,” in the manufacture and sale of which he has been engaged.</p> <p>That defendant, a former salesman in his employ, obtained a knowledge of the ingredients of the said polish, by means of fraud, before the issue of said patent, and has been making and selling the same under the name of “ The Corona Piano and Furniture Polish” in the District of Columbia and elsewhere. That he has had the composition sold by defendant subjected to analysis by a skillful chemist, whose affidavit, filed with the bill, shows that it is composed of the same ingredients as complainant’s polish, mixed in the same proportions, with the exception that kerosene or coal oil has been omitted. “ That the kerosene or coal oil is no essential part of his invention and the use of it in the composition has nothing to do with the quality of the compound as a polishing fluid. Its purpose is to thin the alkanet root that is used in a powdered form in order that its coloring material may quickly pass into the compound.” That this omission by defendant is either accidental or willful in order to make it appear that his polish differs from that of complainant. That he is advised and therefore avers that to change or omit the coloring does not amount to an invention, as the coal oil is only employed when coloring is used, and to omit it or substitute an equivalent would not affect the compound, or entitle the party making the change to a patent, or prevent its infringing complainant’s patent.</p> <p>That defendant has been selling his compound at a lower price than complainant’s, and has seriously, affected his sales, and is doing him irreparable damage, etc.</p> <p>Affidavits, referred to in the bill and made exhibits, tend to sustain the charges made of fraud practiced in obtaining knowledge of the ingredients and proportions thereof in complainant’s composition; that defendant boasted of having the same preparation, and of his sale of the same at a less price in competition with complainant.</p> <p>The patent is not described in the bill save by date and number and the statement that it was issued for the “ Ching Eow Piano and Furniture Polish;” nor is it filed as an exhibit.</p> <p>The defendant did not demur to the bill, but answered it at once under oath before the preliminary hearing.</p> <p>He admits the allegations of the first three paragraphs of the bill, one of which is that setting up the issue of the patent as above stated. He admits selling his own polish at a lower price, but denies the charge of obtaining knowledge of complainant’s composition through fraud.</p> <p>He avers that his composition is essentially different from complainant’s, and that it was not lack of knowledge which induced him not to use kerosene or paraffine oil in his composition, but knowledge of other and better ingredients than those which he says form the basis of complainant’s polish.</p> <p>Hpon the preliminary hearing on bill, affidavits, and answer an order was issued restraining the defendant until the final hearing from advertising, manufacturing, selling, or attempting to sell the composition of the complainant, or any imitation thereof, under the name of “ Corona Piano and Furniture Polish, or any other.”</p> <p>From this order defendant has taken an appeal as provided by the statute for such cases,</p>

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

Hearing.on an appeal from a decision of tbe Commissioner of Patents rejecting an application for a patent for an alleged improvement in a seam for sewed articles. Tbe facts are sufficiently stated in tbe opinion.

<p>Hearing on an appeal by tbe defendant from a judgment of the Supreme Court of the District of Columbia under the seventy-third rule of that court, for want of a sufficient affidavit of defense in an action against an indorser of a promissory note.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal from a decision of tbe Commissioner of Patents in an interference case, and a motion by tbe appellant therein to remand tbe proceeding to tbe Commissioner for a final determination of tbe question of patent-ability.</p> <p>Tbe facts are sufficiently stated in tbe opinion.</p>

Hearing on an appeal from a decision of tbe Commissioner of Patents in an interference case. Tbe facts are sufficiently stated in tbe opinion.

Hearing on an appeal from a decision of tbe Commissioner of Patents, rejecting an application for a patent for an alleged improvement in finger rings. Tbe facts are sufficiently stated in tbe opinion.

<p>Hearing on an appeal from a decision of tbe Commissioner of Patents in an interference case.</p> <p>Tbe facts are sufficiently stated in tbe opinion.</p>

<p>Hearing on an appeal by tbe complainants from a decree of tbe Supreme Court of the District of Columbia sustaining a demurrer to and dismissing a bill in equity to establish title to certain lands held adversely by tbe defendants.</p> <p>Tbe Court in tbe opinion stated tbe case as follows:</p> <p>This is a suit in equity by tbe heirs of Ann Bartlett, who died intestate in 1876, to establish title to certain lands held adversely by tbe defendants.</p> <p>Tbe bill contains tbe following allegations substantially:</p> <p>1. That on November 8, 1828, one William A. Bradley, as trustee for Thomas Mitchell, conveyed a tract of 46 acres of land, in tbe District of Columbia, to said Ann Bartlett.</p> <p>2. That said land was purchased at public sale by said Ann Bartlett for tbe sum of $2,450, which sum, tbe aforesaid deed recites, bad been secured “ to tbe approbation of tbe said Bradley.”</p> <p>3. That on November 8, 1828, Ann Bartlett and her bus-band, John L. Bartlett, conveyed said tract of land to' Weight-man and Riely, trustees, for the purpose of securing the payment of a note described as follows in said deed, which is made an exhibit to the bill:</p> <p>“ Whereas a note for the sum of twelve hundred dollars and dated the 4th day of November, 1828, drawn by George W. P. Custis and indorsed by the said John L. Bartlett at six months after date, is about to be discounted in the Bank of Washington, the proceeds of which it is intended shall be applied to the payment of the residue of the purchase money for a piece of land purchased by the said Ann Bartlett from William A. Bradley, trustee of Thomas Mitchell.” The deed contains the usual power of sale in case of default in the payment of the note.</p> <p>4. That complainants believe and aver that said note was discounted and the proceeds applied as stated, and that thereby the entire purchase money of the lot was paid; that the note before recited was paid by said Custis, and thereafter it became the duty of the trustees, Weightman and Riely, to reconvey the said land to said Ann Bartlett, notwithstanding there was no provision in the said conveyance requiring them so to do; that said conveyance has never been made by them, but on the contrary, the surviving trustee, Weightman, on November 3, 1869, conveyed the said land by way of release to the father of the defendants.</p> <p>5. That prior to July 1, 1830, issue had been born to said John L. and Ann Bartlett whereby the said John became seized of an estate by the curtesy in the said land.</p> <p>6. That on July 1, 1830, an agreement was executed by John L. Bartlett and Robert Isherwood for the conveyance of said land, wherein it is stipulated that in consideration of the sum of $1,550 to be paid by Isherwood the said Bartlett should, on or before the 1st of November thereafter, convey the said tract of land by a good and sufficient deed, to said Isherwood. Three hundred and fifty dollars were paid to Bartlett at that time, and $1,200 were to be paid upon the execution and delivery of the deed; it was further stipulated that Isherwood, his heirs and assigns might enter upon the land on November 1, thereafter, and should have the rents, issues, and profits of the same from said 1st day of July, 1830.</p> <p>7. That Isherwood took possession of the land under said contract and died in possession thereof on June 1, 1849, testate, leaving three children, one of whom married Alfred G. Haley, who continued in possession of the same.</p> <p>8. That by inheritance, devises in trust, and conveyances in partition, etc., the recital of which is not necessary, the parcels of said original tract of land, which are the sxxbject of controversy in this suit, passed to and vested in said Alfred G. Haley under title in fee-simple.</p> <p>9. That Alfred G. Haley was a lawyer on June 5, 1866, when conveyance was first made to him by John H. Mc-Outcheon, trustee for the three heirs of said Bobert Isherwood, and wTas well aware of the condition of the title to said lands, and that the debt secured by the conveyance to Weight-man and Biely, trustees, had long been discharged, without reconveyance by them to the said Ann Bartlett, who had become entitled thereto; that said John L. and Ann Bartlett were then nonresidents, having removed to Connecticut prior to 1840, and none of their descendants ever became residents of the District.</p> <p>10. Complainants aver that the said Haley, knowing the said John L. Bartlett could not recover the possession of the said parcel of land in his said contract with the said Isherwood described by reason of his having put the said Isherwood in the possession thereof as aforesaid, under the said contract, and by reason of the covenant of him, the said Bartlett, in the said contract contained, to procure the investment of the said Isherwood with a fee-simple title to the said land, and also believing that by reason of the long-possession by the said Isherwood and those claiming under him of the said land, under said contract, and the long absence of the said Ann Bartlett from the said District, that neither she nor her descendants would ever appear to claim the same, and further believing that it would be to the advantage of the said devisees and heirs of the said Bobert Isherwood in enabling them more readily to sell said land, and that it would strengthen the position of the said devisees and heirs of the said Isherwood and of said Haley in case of any attempt on the part of the said Ann Bartlett or her descendants to recover the same, did craftily and in derogation of the rights of her, the said Ann Bartlett, in the premises, induce and persuade the said Roger C. Weightman, who was the survivor of the said Riley, and who was then quite old, and who by reason of his advanced age was of feeble mind and body, to execute and deliver to the said Haley a deed bearing date November 3, 1869, and on the same day recorded in Liber T. and R. 18, at folio 400, of said land records, wherein and whereby the legal title in fee to said- land invested in him, the said Weightman, as surviving trustee under the said hereinbefore-mentioned deed of conveyance in trust,, dated November 28, 1828, from the said John L. and Ann Bartlett to the said Weightman and the said Riely, was transferred to and vested in the said Haley, and is now by descent vested in his two children and sole heirs-at-law.</p> <p>11. That Alfred Gr. Haley died in 1882, and John L. Bartlett died at Hammerton, New Jersey, May 24, 1884.</p> <p>12. “ That the said John L. Bartlett and Ann Bartlett, his wife, after removing from the said District as aforesaid, remained in said State of Connecticut until the year 1860, when they moved to Owego, in the State of New York, and that between the time of their removal from the said District and the said death of the said Ann Bartlett, in 1876, the said John L. Bartlett was absent from his home for long-periods of time, and visited the same infrequently; that he had no permanent employment and traveled from place to place, and that after the death of his said wife he went away and thereafter, during his lifetime, his whereabouts were unknown to the children or descendants of the said Ann Bartlett; that in the meantime, by reason of marriages, half-blood relationship, death of parents, infancy and other causes, the descendants of the said Ann Bartlett had become widely separated and were living at various places in the said United States, remote from each other, and the whereabouts of but few of them known to the others; that two children only of the said John L. and Ann. Bartlett, viz., the said Annie L. Peck and James L. Bartlett, survived their father, and that the said James L. Bartlett survived him for about one year; that the said Annie L. Peck learned of the death, of her father about one week after it took place, but the remaining descendants of the said Ann Bartlett did not learn of the same for several years thereafter, and as to those of them residing in Texas not until the year 1891, and that since learning of their rights in the premises the complainants have been diligent in their efforts through counsel learned in the law and agents and trustees to enforce the same.</p> <p>“ That prior to the said year 1891 Ezra J. Peck, the husband of the said Annie L. Peck, at her instance, was endeavoring, through correspondence and inquiry by mail, to ascertain the whereabouts of the other descendants of the said Ann L. Bartlett, and to obtain united action, on their part, in an effort to recover the real estate aforesaid, and that it was not until the said year 1891 communication was finally had between all the parties in interest, and such action became possible, and that thereupon counsel was employed for said purpose.</p> <p>“ That under the advice of such counsel certain deeds of conveyance were executed and delivered by complainants to said Ezra J. Peck and Leo Simmons and their heirs, whereby the title of the descendants of the said Ann Bartlett to said real estate was conveyed to the said Peck and Simmons, in trust, among other things, to institute and prosecute such suits and actions as might be necessary to recover said real estate, and to sell and dispose of the same for the benefit of said descendants ; that one of said deeds is dated October 20, 1891, and the other June 20, 1892, and that said deeds were recorded on October, 1892, in Liber ■ — , at folio ■--et seq., of the land records of said District; that in the said month of October, 1892, the said Peck and Simmons, as such trustees, instituted a suit in ejectment in the Supreme Court of said District to recover the said subdivision lots Nos. 10, 11, 12, 13, 23, and 24, in said block or square 10, and instituted another suit in ejectment against Christian Heurich, who held under said Haley, to recover other portions of said real estate; that upon the trial of the case last mentioned the court held the said last-mentioned deeds to be invalid and void and to pass no title, and there was verdict and judgment for said defendant; that this ruling upon appeal was affirmed by the Court of Appeals of said District and by the Supreme Court of the United States for reasons which will appear in the opinions of the said courts respectively, which are reported in 6 App. D. C. 273, and 167 U. S. 624.”</p> <p>13. “ That until they were informed by their counsel of the fact in 1894 none of the descendants of the said Ann Bartlett had knowledge of the said deed from said Weight-man, surviving trustee, to the said Haley, and they believe, and so believing aver, that the said Ann Bartlett was ignorant of the same in her lifetime; that said counsel gave it as their opinion, based upon the decisions of the Supreme Court of the United States in I)oe v. Gonsidine, 6 Wall. 458, and Young v. Bradley, 11 Otto, 782, that by the payment of the debt secured the title of the said Weightman and Biely under the said deed of trust became extinct, and that the legal title in said land revested in the said Ann Bartlett, and that the said deed from the said Weightman, as surviving trustee, to said Haley would be no bar to the maintenance of ejectment by the descendants of the said Ann Bartlett; that complainants, however, are now advised by said counsel that upon further consideration of the premises and upon consultation with other counsel who have also been recently employed by and on behalf of complainants that they are of the opinion that the said deed of trust to Weightman and Biely falls within the class of instruments adverted to in the opinion of the said Supreme Court of the said United States in the case of Lincoln v. French, 15 Otto, 614, and not within the class to which those belonged, which were considered by said court in the first-mentioned cases, and that under the decision in Lincoln v. French the legal title to said land continued in said trustees and in the survivor of them until it passed by the deed from the survivor of them, said Weightman to said Haley; that it was in said Haley at the time of his death and upon his death passed to the said defendants, Hardy I. Haley and Zoe Haley.”</p> <p>“And forasmuch as complainants cannot bring their action of ejectment against the said defendants for the recovery of the said above specifically enumerated lots because the naked legal title thereto is outstanding in the said defendants, under the circumstances above stated, and forasmuch as complainants have no remedy in the premises, save in this honorable court, they pray:”</p> <p>(1) That a decree be passed declaring that the lands described be held in trust for complainants; (2) that complainants be permitted to prosecute their action of ejectment, and defendants be restrained from setting up in defense the deed from Weightman to Haley, or that issues to try the title may be framed and sent to the court of law under the same restrictions; (3) that the amended bill be retained until such action of ejectment or issues may be tried, etc.; (4) that they may have general relief.</p> <p>The amended bill, from which the foregoing statement has been taken, was filed January 13, 1900. The record does not show the filing date of the original bill, for which it is a substitute.</p> <p>Defendants demurred to the bill on the following grounds:</p> <p>1. Because of laches apparent on the face of the bill.</p> <p>2. Because it appears that the right is barred by the statute of limitations.</p> <p>3. Because the remedy, if any, is at law.</p> <p>4. Because it appears that any title complainants may have had appears to have been conveyed to persons who are not parties to the suit.</p> <p>5. Because the prayers for relief are inconsistent with each other.</p> <p>The demurrer was sustained and the bill dismissed. From that decree the complainants have appealed.</p>

Hearing on an appeal by tbe plaintiff (specially’allowed) from an interlocutory order of the Supreme Court of tbe District of Columbia overruling bis motion for a judgment against tbe defendants for want of sufficient affidavits of defense, in an action on a promissory note against the maker and several indorsers of a promissory note.

In error, to the police court of the District of Columbia. The Court in the opinion stated the case as follows: This is a suit brought to this court by writ of error issued to the police court of the District of Columbia, the purpose of which apparently is to test the reasonableness and validity of a municipal ordinance or regulation made by the Commissioners of the District in regard to “ Pawnbrokers, junk-dealers, and persons engaged in the secondhand clothing business.”…

Hearing on an appeal by the petitioner from an order of the Supreme Court of the District of Columbia overruling a demurrer by the petitioner to the return of the respondent, the Secretary of the Interior, to a rule to show cause why the writ of mandamus should not issue to compel the respondent to approve the petitioner’s selection of certain public lands and to issue him a patent therefor, and, the petitioner electing to stand by his demurrer, discharging the rule and…

<p>In error to the police court- of the District of Columbia.</p> <p>The Court in the opinion stated the case as follows:</p> <p>Information was filed in the police court against the plaintiff in error, as the owner of a certain dog, for allowing it to be at large in the District, knowing it to be fierce and dangerous, to the danger and annoyance of the inhabitants of the District, in violation of the act of Congress of Tune 30, 1902. This act (32 Stat. 5él), which is an amendment of a previous act of June 19, 1878 (20 Stat. 173), provides as follows:</p> <p>“ That if any owner or possessor of a fierce or dangerous dog shall permit the same to go at large in the District of Columbia, knowing said dog to be fierce or dangerous, to the danger or annoyance of the inhabitants, he shall, upon conviction thereof, be punished by a fine not exceeding $20; and if such animal shall attack or bite any person, the owner or possessor thereof shall, on conviction, be punished by a fine not exceeding $50 ; and in addition to such punishment the court shall adjudge and order that such animal be forthwith delivered to the poundmaster, and such poundmaster is hereby authorized and directed to kill such animal so delivered to him.”</p> <p>Upon a plea of “ not guilty ” two trials were had, in both of which the defendant was found guilty. The verdict having been set. aside in the first trial and a new trial ordered, the second had the same result. The rulings in this second trial are now brought before this court on bill of exceptions and writ of error.</p> <p>[The further material facts will be found stated in the opinion — Reporter.]</p>

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia in an action on a foreign judgment. The Court in the opinion stated the case as follows: • Joseph P. Barber, trustee, as plaintiff below, recovered a judgment against Jacob P. Clark, in an action upon a judgment of the Common Pleas Division of the High Court of JUstice of Ontario, Canada, and the defendant has appealed.

Hearing on an appeal by tbe judgment defendant (altbongb not specially allowed) from an order of tbe Supreme Court of tbe District of Columbia, overruling a demurrer to a writ of scire facias on a judgment. Tbe facts are sufficiently stated in tbe opinion.

<p>Hearing or an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia, entered upon tbe verdict of a jury directed by tbe court, in an action against tbe District of Columbia to recover damages for personal injuries.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This is a suit at common law to recover against the District of Columbia for personal injuries sustained by the appellant, Lydia L. Domer, in consequence of an obstruction in the highway, for which the District is claimed to have been responsible.</p> <p>The suit was originally instituted by the appellant conjointly with her husband, Samuel Domer, a minister of the gospel in this city; but he departed this life during the progress of the cause. One John L. Waggaman, owner of the property adjacent to the street whereon the appellant’s accident occurred, and to whom it seems to be assumed the placing of the obstruction in the street was originally due, was joined in the suit as codefendant with the District; but at the trial the cause as to him was voluntarily dismissed by the plaintiff.</p> <p>The circumstances of the accident and injury to the plaintiff, for which the suit was instituted, are these: On the night of January 20, 1900, Mrs. Domer, accompanied by her husband, was walking along the sidewalk of H street northwest, near Tenth street, in this city, in front of an apartment house known as “ The Lincoln,” alleged to have been owned at the time by Waggaman, and was somewhat severely injured by violent contact with an iron gate which swung open over the sidewalk, extending outwards from an iron railing that inclosed a parking space adjacent to the building. It was the more western of two gates in the railing, one of which gave access to the main door of the building, and the other of which, the one which caused the accident, gave access to the kitchen, and was used for taking in supplies thereto. It appeared from the testimony in the case that the railing had been constructed under a permit for' the purpose issued by the proper authorities of the District of Columbia, which required that the gates should be made to open inwards toward the building, and not outwards over the sidewalk, and that in fact it had been so construed; but that, in course of time, for some reason, it became liable to get out of order, in consequence of the fact that the bolt and latch were insecure, and would swing outwards as well as inwards. It appeared from the testimony that it swung outwards quite frequently; that at various times before the accident to the appellant several persons had run against it and been more or less injured; and that, according to the testimony of one witness, most of these accidents happened in the daytime, and that the gate in question more frequently swung outwards than inwards, and in fact habitually stood over the sidewalk.</p> <p>At the close of the testimony the trial court, on the motion of counsel for the District, directed the jury to return a verdict in favor of the defendant, on the ground that there was no testimony to show that the District had any notice, actual or constructive, of the existence of the alleged obstruction. From the judgment thereupon rendered the plaintiff has appealed.</p>

<p>Hearing on an appeal by tbe complainants from a decree-of the Supreme Court of the District of Columbia dismissing a bill in equity to enjoin the prosecution of an action of ejectment and have the title to certain land declared to be-in them by adverse possession.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This is an appeal from the Supreme Court of the District of Columbia taken from a decree dismissing the bill filed by the complainants, the present appellants, against the appellee and others.</p> <p>It appears that on February 13, 1901, the appellee, Augustus Brown, instituted an action of ejectment in the Supreme Court of the District of Columbia against one William Gwin, to recover possession of a certain lot or parcel of ground situate in the city of Washington, known as lot No. 52, in Ann S. Parker’s subdivision of lots in square No. 140. That said action of ejectment was at issue and stood on the calendar awaiting its turn for trial, when the said Gwin, the defendant, died intestate. Whereupon the widow of the said deceased defendant, and his heirs-at-law were made parties defendants, and the case still stands on the calendar awaiting trial. In that condition of the case, the said widow and the heirs-at-law of the said original defendant exhibited their bill in equity in the Supreme Court of this District, on the 9 th day of April, 1902, against the appellee, the plaintiff in the action of ejectment, and against what is styled the unknown heirs, alienees, and devisees, of Augustus Brown, deceased, the father of the plaintiff in the action of ejectment; but without any allegation that there were any such unknown heirs, alienees, or devisees, in fact. On the contrary, they allege that, so far as they knew or could ascertain, the said Augustus Brown died intestate, and that there is no record of his having made a will or deed of the lot in controversy. That the complainants have made diligent search to find heirs, alienees, or devisees of said Augustus Brown, deceased, but they have been unable to ascertain the name or names of any party or parties other than the said Augustus Brown, the plaintiff in the action of ejectment, and who claims and pretends to be the sole descendant and heir-at-law of the said Augustus Brown, deceased.</p> <p>The complainants allege that the said William Gwin, the original defendant in the action of ejectment, died in the city of Washington, intestate, on the 24th day of November, 1901, seized in his own right, and in possession of, the lot or parcel of ground in controversy, and was entitled thereto in fee simple, having acquired the same by adverse possession; and the said William Gwin left surviving him his ■widow, Martha Gwin, and Mabel Marshall and Helen M. Gwin, his only children and heirs-at-law.</p> <p>It is also alleged, that on the 2d day of December, 1870, Augustus Brown, since deceased, the father of the plaintiff in the action of ejectment, being then seized and possessed of the lot here in controversy, by deed of .trust of that date conveyed said lot or piece of ground to Samuel Parker, trastee, to secure the payment of a certain promissory note; that thereafter, in May, 1871, the said Brown died intestate, in the city of Washington, leaving a widow, Julia Brown, but no issue then in esse. That when the said note became due which the said deed of trust was made to secure, the said Julia Brown, the widow, having no means with which to pay off and discharge said debt, sold the said lot or parcel of ground now in controversy, to the said William Gwin, for the amount of the debt, and $500 in addition, and the said Julia Brown thereupon made and executed a deed to the said Gwin for the lot or piece of ground on April 1, 1872; that by virtue of the said sale and conveyance the said Gwin entered into the possession of the said lot and premises, as owner thereof, on the said 1st day of April, 1872; and in February, 1878, he began to improve the same by the erection of a costly building thereon. That said Gwin continued to live in said dwelling-house so erected, up to the time of his death, and complainants have continued to reside therein up to the present time.</p> <p>It is further alleged, that subsequent to the death of said Augustus Brown, and the sale of the said lot and premises to the said William Gwin, but a few months before the execution and delivery of the said deed by Julia Brown for the said lot, the defendant Augustus Brown was born, on or about the 25th day of December, 1871, and he was on or about the 13th day of February, 1901, when the action of ejectment was instituted, 29 years of age, and was at the time of instituting such action over 22 years of age, and had attained such last-mentioned age more than seven years llien past, and is at the time of filing the bill 30 years of age.</p> <p>It is further alleged that said William Gwin and the complainants since his death, have been in the uninterrupted possession of the property in controversy for a period of more than twenty-five years, claiming the same adversely to said Augustus Brown, the defendant herein, and the said ■Julia Brown, and the heirs, alienees, and devisees, of the said Augustus and Julia Brown, deceased; and that said possession has been open, continuous, exclusive, and adverse to said defendants for more than twenty-five years, and for a period of more than five years after said Augustus Brown became of full age; and had been open, notorious, continuous, exclusive and adverse to said defendants for a period of more than twenty-five years next prior to the time of the institution of the said action of ejectment; and at the time of the institution of the said action, the plaintiff therein and defendant in this cause had been for more than two years of full age, and the complainants had acquired by adverse possession a fee-simple title in and to said lot and premises. That they are the owners of said property, by virtue of the adverse possession as aforesaid; but on account of the cloud cast upon the title of the said property, and especially ber cause of the institution of the said action of ejectment, their title is clouded, and their fee-simple title, although existing in fact, is not a title of record, and they are desirous of having the same made perfect and the cloud therefrom removed; and they are advised that they have no adequate remedy at law, and unless said action at law be restrained they will suffer irreparable injury; and they are therefore, by showing title by adverse possession, entitled to a decree declaring their title to be perfect by adverse possession, and to an injunction restraining all persons claiming adversely thereto. They therefore pray for process and for order of publication against the parties made defendants; for an injunction to restrain the action of ejectment, and for a decree declaring their title to the property by adverse possession.</p> <p>The defendant, Augustus Brown, the only person served with process, appeared and answered tbe bill. By bis answer he admits many of tbe facts alleged in tbe bill, but be denies that there were any unknown heirs, alienees or deviseesof bis father, Augustus Brown, deceased, and be avers that be was and is tbe only and sole heir-at-law of bis father. He admits the death of William Gwin, intestate, as stated in tbe bill, and that the complainants are tbe widow and heirs-at-law of said Gwin as alleged; but be denies that tbe said William Gwin was ever seized in bis own right of a good fee-simple title, by adverse possession, to the property in controversy. He avers that at tbe time tbe agreement for the-purchase of tbe said lot was made by William Gwin, with tbe defendant’s mother, Julia Brown, tbe defendant was then about three and a half months old; and that said Gwin well knew that be was tbe lawful heir of tbe said Augustus Brown, deceased, at the time of tbe said purchase. He also denies that said Gwin took possession of tbe lot of ground at tbe time stated in tbe bill, and avers that such possession began at a much later date. He also denies that be, tbe defendant, ever acquiesced in tbe possession of said Gwin, prior to tie bringing of bis said action of ejectment; but be states that be was absolutely without knowledge of tbe alleged sale of tbe lot by bis mother to tbe said Gwin, until about two months prior to tbe bringing of said action of ejectment. Tbe defendant also denies that said William Gwin and those claiming under him, have been in possession of tbe lot and premises for a period of twenty-five years prior to February 13, 1901; and be also denies tbe right of tbe complainants to file tbe bill to remove tbe alleged cloud from tbe title to tbe property, and be claims tbe same benefit from tbe objection thus taken as though be bad demurred to said bill.</p> <p>There was no replication filed, nor was there any testimony taken; but there was a stipulation entered into, whereby it was agreed that the complainants, and those under whom they claim, bad been in possession of.tbe property in controversy for a period of twenty-three years next prior to tbe institution of tbe action of ejectment by tbe ax>pellee, and that said possession was adverse to said appellee; and that tbe cause should be heard on. bill, answer, and stipulation. And the court below, upon hearing the case, passed a decree dismissing the bill, and the complainants have appealed.</p>

Hearing on an appeal by the defendants from a decree ■of tbe Supreme Court of the District of Columbia, granting the relief prayed for in a bill in equity to establish a lien upon or ownership of certain certificates of shares in real estate, pledged as collateral security.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, entered upon the verdict of a jury directed by the court, in an action of assumpsit on a policy of fire insurance. The Court in the opinion stated the case as follows: This is an action of assumpsit on a fire insurance policy begun May 2, 1895, by Chapin Brown, trustee in a trust deed that had been given by the insured to secure a debt.

<p>Hearing on an appeal by exceptants from a decree of the Supreme Court of tbe District of Columbia overruling exceptions to and confirming a report of tbe auditor in several consolidated equity causes.</p> <p>Statement ok Facts.</p> <p>For purposes of convenience, the following statement of facts relating to the claim of the appellant Mrs. Henry Anne Stuart, whose claim to priority over the other distributees was denied by the auditor, and who appealed from the order of the lower court, confirming the report, is here made. It is made up largely from the brief filed on her behalf and from the auditor’s report:</p> <p>Charles .Stuart, a certificate-holder of the endowment association and husband of his beneficiary, the appellant Mrs. Henry Anne Stuart, died on July 21, 1886, and after due proof of his death and due demand, the association having refused payment of the amount called for by his certificate, namely, $5,000, suit therefor was brought, which finally resulted, on June 21, 1894, in a verdict against the association for $5,000 and interest from September 29, 1887 (the date of bringing suit), besides costs. A motion for a new trial having been interposed, entry of judgment on the verdict was delayed until October 1, 1894, when judgment was entered. An appeal to this court was taken by the association, but was not perfected, and was duly dismissed on November 9, 1894, when a writ of fieri facias on the judgment was issued and the following day was returned nulla bona.</p> <p>In the meanwhile, between the date of the verdict and that of the judgment, namely, on August 9, 1894, a deed purporting to be that of the association and to convey its only holding of real estate to the Commercial Alliance Life-Insurance Company, was executed by “ Lawrence Gardner, president W. B. E. A.,” and by him acknowledged as the pretended attorney-in-fact of the association, created as such by the instrument itself; and this instrument was, on the following day, recorded among the land records of the District of Columbia.</p> <p>Thereupon, and on August 30, 1894, Ball and two others, claiming, not as stockholders, but as certificate-holders, of the endowment association, filed their bill in equity against the association, Gardner and the insurance company, with a Mew to having the assets of the association taken charge of, its business wound up “ in due course of administration,” and the equitable value of their claims upon the association ascertained and paid out of the assets of the association then existing and in the hands of any of the defendants; and to that end the bill prayed for (1) an accounting, (2) an injunction against the intermeddling pendente lite by the defendants with the business of the association, and (3) general relief. The bill did not seek a vacation of the above-mentioned deed or a cancellation of the agreement in accordance with which it was alleged to have been executed. No receiver was ever appointed in this cause. On October 6, 1894, the endowment association filed its bill against the insurance company, alleging fraud and want of consideration in the transaction between the two concerns, and praying for (1) the annulment of the transfer by the association to the company of its property and of the deed aforesaid, and a reconveyance of the property to the association, (2) an injunction pendente lite against the company, (3) a receiver to collect the rents and profits of the association’s real estate pendente lite, and (4) general relief. On this bill, and on November 6,-1894, receivers were appointed to take charge of the association’s property and to hold the same subject to the further order of the court, and an injunction against the company was granted.</p> <p>Thereupon, the appeal from her judgment having been dismissed on November 9, 1894, and her execution having been returned nulla bona on the following day, and the receivers having taken possession of the property of the association and the same being in charge of the court, Mrs. Stuart, on November 15, 1894, intervened in the suit between the association and the company.</p> <p>Thereafter, and on December 1, 1894, the Ball suit and that between the association and the company were, by order of court, consolidated.</p> <p>While the proceedings were at the stage thus indicated, namely, on January 17, 1895, an order, dated December 1, 1894, was filed in the suit between the association and the company, directing the receivers to sell all the property of the association in their hands, except books, papers, and documents, but not to convey any of the property until any sale or sales should have been duly reported to the court and by it finally ratified and confirmed. The main decree below and the report of the auditor show that this order was carried into effect, but no reports of the receivers are in the record as brought to this court on either appeal. The real estate appears to have brought $22,000.</p> <p>Upon consideration of all the proceedings and testimony in the four causes mentioned, the court below, on June 27, 1896, passed the decree heretofore affirmed by this court. That decree provided as follows: (1) That the deed of August 9, 1894, be set aside and held for naught; (2) That the net proceeds of the real estate described in the deed and sold be held liable only for the payment of claims under certificates of the association, in such shares and proportions as the court might determine upon receiving the auditor’s report; (3) That the causes be referred to the auditor to state the account of the receivers, and to report, after notice to all concerned, the claims under said certificates involved in the proceedings and such other similar claims as might be presented, and the several sums to which such claimants might be entitled; and (4) That the auditor also report as to such costs and counsel fees as might be a proper charge upon the fund in the hands of the receivers. Pursuant to the requirements of this decree, the auditor, by “ due notice by publication in daily newspapers and by postal notices and otherwise,” called upon “ all concerned ” to present their claims before him, and after hearing all claimants who presented themselves filed his report on July 31, 1900. The auditor felt himself bound by the terms of the decree to consider only the proceeds of the real estate, including rents collected by the receivers; he excluded from consideration the proceeds of sale of the personal property.</p> <p>As respects distribution to the certificate-holders, the auditor divided these into two classes: (A) what he called going certificate-holders, and (B) holders of death claims. In the former he included all living holders and all holders avIio died after August 30, 1894, the date of the filing of the Ball suit, and in the latter all beneficiaries of holders who died before that date, whether their claims had been put in judgment or not. The rate of distribution to the latter was a fraction under nine-tenths of 1 per cent, the number of claims presented by the former, nearly 1,000.</p> <p>In denying priority to the claim of Mrs. Henry Anne Stuart, the auditor in his report, after reciting the pleadings and stating that Mrs. Stuart did not claim in her petition that the real estate was subject to the lien of her judgment, said:</p> <p>“At this point it may be convenient to dispose of the claim that the petitioner is entitled to a lien by virtue of a by-law of the association. There are two by-laws which may be taken as those upon Avhich this claim of alleged lien is based, one providing that death claims shall be paid from the income as they become due and payable, and the other providing that the capital stock, together with the reserve fund, shall be held at all times liable for the security of the certificate-holders. In this connection it may be well to note the proAnsions of 'the contract of insurance or certificate of endowment, bearing in mind that the insured were divided into classes, and on the death of a member, if I may use that term, of a particular class, assessments Avere made upon all other holders of certificates in that class, while the beneficiary of the insured (deceased) was entitled to receive a specified amount named in the said certificate. The certificate or contract of insurance makes no mention of the by-laws referred to in this connection, but is neither more nor less than an agreement upon the part of the association to pay the sum specified in the certificate upon the acceptance of due notice and proofs of death, and a condition of undertaking on the part of the insured to pay the assessments specified in said certificate upon notice of the death of the person holding a certificate in the same class.</p> <p>“ Do these by-laws, however, create any other or greater lien than the general doctrine that the property of a corporation is answei’able to its creditors in preference to its stockholders? Do they create such a trust on the property or assets of the association that upon the death of Charles Stuart that property became affected with a lien to the extent of the certificate of insurance? Or was the corporation, by virtue of such a lien, prevented from disposing of its property unaffected by the lien? It is clear to me that.it was not the purpose of these by-laws, to create a trust or lien in the legal signification of the term or by way of preference, but rather to pledge its funds and property for the satisfaction of its creditors. The justice, determining this case in special term, states that in his opinion this by-law (referring to article 17) did not mean any more than the general principles of equity requiring that the property shall be so far liable all the time to the claims of creditors that it could not be disposed of to the benefit of stockholders. It may be observed here that in August, 1894, this association had no-reserve or surplus fund. Its real estate, which comprised practically all of its substantial assets, was the representative, in part at least, of its capital stock.</p> <p>“ I am quite clear in my conviction that neither the charter, by-laws, nor contract of insurance created such a trust as to vest the beneficiary with such a lien upon the corporate property as is now claimed by counsel.</p> <p>“ In this reference it is contended by counsel for the petitioner that she is entitled to have her claim paid in full by way of priority to all other claims for the reasons:</p> <p>“ First. That her judgment constituted a lien on the real-estate and the first lien, and therefore is entitled to priority in payment.</p> <p>“ Second. That being the first judgment creditor filing a judgment creditor’s bill, she obtained the first equitable levy on said real estate, and is, therefore, entitled to priority in payment.</p> <p>“ Third. That being the first death claimant, her claim became payable before that of any other creditor, and under the terms of her policy and the by-laws of the association she is entitled to priority of payment.</p> <p>“ Referring to the first reason assigned in support of the claim of priority, to-wit, that the judgment became a lien on the real estate at the time of its entry, it is asserted by counsel that the conveyance or deed by the association to the insurance company of August 9, 1894, was not the deed of the association, and therefore no title passed to the said company, but that the legal title at the date of the judgment remained in the association, whereby the judgment became a lien thereon.</p> <p>“ In the same line it is argued that, admitting the said deed to be the deed of the association, it is also ultra vires and void.</p> <p>“And further that, admitting it to be the deed of the association, it was in fraud of creditors, and therefore void.</p> <p>“ The complainant association was organized under the provisions of the Revised Statutes of the Distinct of Columbia, section 533 and folio, found on page 67 of the said Revised Statutes. Section 533 provides that “Any three or more persons who desire to form a company for the purpose of carrying on any kind of insurance business in the District may make, sign and acknowledge, etc., and file in the office of the recorder of deeds a certificate in writing in which shall be stated the corporate name of the company and the object for which it was formed, the term of its existence, the amount of capital stock and number of shares, the number of trustees who shall manage the concerns of the company for the first year and their names, etc.”</p> <p>“ Section 554 provides that ‘ after the filing of such certificate the persons signing and acknowledging- the same and their successors shall be a body politic and corporate and they and their successors shall by their corporate name, be capable of purchasing, holding, and conveying any real and personal estate whatever which may be necessary to enable the company to carry on its operations named in such certificate,’ but shall not mortgage such estate or give any lien thereon except in pursuance of a vote of the stockholders of the company.’</p> <p>“ Section 555 provides that the stock, property, and concerns of such company shall be managed by not less than three or more than nine trustees, who shall he stockholders, etc.</p> <p>“ Section 559 provides that the trustees shall have power to make by-laws prescribing the duties of officers and servants and for carrying on all kinds of business within the objects and purposes of the company.</p> <p>“ The alleged conveyance of the real estate described recites in the premises that it is an indenture made between the Washington Beneficial Endowment Association, of the first part, and the Commercial Alliance Insurance Company, of the second part, and after words of grant, description, etc., proceeds as follows, ‘And the said Washington Beneficial Endowment Association has constituted and appointed and by these presents does constitute and appoint Lawrence Gardner president of the said association its true and lawful attorney-in-fact irrevocable and for it and in its name to acknowledge and deliver these presents to the end that the same may be made a matter of record.’</p> <p>“ ‘ In testimony whereof the said party of the first part in accordance with an order of the stockholders, a certified copy of which is hereunto annexed, have caused these presents to be signed by Lawrence Gardner its president and its corporate seal to be hereto affixed.’</p> <p>“ The signature to this paper is ‘ Lawrence Gardner, president, W. B. E. A.’</p> <p>“ With this document and as a part of it there is a certificate by the secretary that at a special meeting of the stockholders after due notice at the office of the association August 9, 1894, a resolution was adopted directing the president to convey in fee-simple the title to the said real estate to the Commercial Alliance Insurance Company for such consideration as he might deem advisable, etc.</p> <p>“ The contention of counsel touching this conveyance is:</p> <p>“ First. That its execution is not in proper form to make it the deed of the corporation, that the name of the association should appear in the signature with the words ‘ By Lawrence Gardner, president.’</p> <p>“ Second. That a necessary prerequisite to the validity of the conveyance was the direction or authority of the trustees made in due form.</p> <p>“ Several authorities are cited by counsel in support of both propositions, from which it would appear that the execution of the deed was informal and imperfect. Whether that would deprive the conveyance of all validity, legal or equitable, may be a matter the determination of which is unnecessary if my view of other existing conditions be correct.</p> <p>“As to the second proposition, the requirement of law that the estate of the association should not be mortgaged or any lien given thereon except in pursuance of a vote of the stockholders is to be considered in connection with the fact that such a vote was given at a meeting at which all of the trustees were present or represented.</p> <p>“ The trustees are thus charged with full knowledge in advance of the proposed conveyance.</p> <p>“ I find in a comparatively recent cause in the Supreme Court of the United States, The Union Pacific By. Go. v. The Chicago, Bode Island & Pacific By. Go., 163 U. S. 564, a decision that the ratification of a contract of a corporation by a board of directors appears without any affirmative action on their part when the execution of the contract is entered upon with full knowledge of the directors. After the execution of this conveyance it was practically ratified by the trustees by the acceptance of part of the consideration received from the grantee in payment of the stock respectively held by them in the association, knowing as they did the source from which the fund was derived.</p> <p>“ But admitting that this conveyance was not authorized by the directors or trustees, and admitting further that a transfer of all the property of the association was beyond its power under the law and the charter, these facts become less material as I view the existing conditions at the time of the entry of the judgment.</p> <p>“ First. I am of the opinion that at the entry of the judgment the Beneficial Endowment Association was not an existing corporation; that it was dissolved by the transfer of all of its property, assets, and business, and by the fact that there was at that date neither stock of the association nor' stockholders. The assertion of the officers of the association that all of the capital stock was purchased by and transferred to the insurance company is not sufficiently established by the proof. It is denied by the parties who represented the company in the negotiations and agreements with the association, and .their version of the transaction is strengthened by the law of the company’s domicile prohibiting the acquirement or holding the stock of another corporation.</p> <p>“ The stock book of the association records the transfer to the insurance company on or about the 9th of June. As it was not accepted or taken by the company, it remained in possession of the association.</p> <p>“ Some of the certificates Vere not delivered to Gardner until later, but he seems to have had authority to dispose of the stock and he treated it accordingly, taking the money received from the insurance company and holding it not as funds of the association, but for payment to the stockholders for their stock. Eor that reason he deposited the money to his own credit in another bank than that in which the association kept its account, and checked it out to the several parties as they called for it.</p> <p>“ I am of the opinion that the stockholders parted with the ownership of the stock on the 9th of August, and, as the association could not hold it, the inevitable result was its immediate extinguishment.</p> <p>e: It follows as a necessary consequence that the corporation was dead. It could not exercise any corporate function. It could not sue or be sued. No process of any kind could be served upon it. All suits against it abated, and with them the suit of Mrs. Stuart.</p> <p>“ I am reminded that in these consolidated cases the association has been recognized by the courts as capable of suing and being sued.</p> <p>“ The want of such capacity by the civil death of the corporation was not made manifest to the court until the cases were submitted for adjudication. The condition was only developed, in the proof then presented. Then the court had in the combination of suits sufficient proper parties, complete pleadings and satisfactory proof to sustain its jurisdiction and decree.</p> <p>“Another reply to the claim of lien in behalf of this judgment is that the bill of Ball and others filed on the 30th of August, 1894, had the effect of a ' lis pendens1 and served to protect the property and assets from all interference either by judgment, decree, incumbrance, or otherwise, without the limits of that proceeding. I have already expressed my opinion as to the standing of the Ball bill on the question of jurisdiction; and, without discussing the question of the lis pendens in detail, I am of the opinion that the subsequent action of the court in taking possession of the property and assets of the association relates back to the filing of that bill and had the effect of a r Us pendens" in protecting the property and assets from interference.</p> <p>“ In view of the conditions I have related as existing at the date of the entry of the judgment, it seems, to me that the suit of Mrs. Stuart by reason of the civil death of the corporation prior to October 1, 1894, must be treated as having abated; but if we concede that the plaintiff was not prevented from prosecuting her suit to judgment, there still remains the inquiry whether she thereby acquired a lien upon this real estate. The ordinary lien of a judgment carries with it the right of execution, levy, and sale. Could the judgment plaintiff have exercised that right in this case ? I am of the opinion that she could not; and for some reason it would appear that the judgment plaintiff, although claiming that the legal title had not passed by deed to the insurance company,' wras satisfied that the property was not subject to the levy of an execution, for we find in the record of the law case a writ of -fieri facias issued on November 9th and returned by the marshal on the following day, f Nulla bona/ that return being made by the order of the plaintiff’s attorneys indorsed on the writ. Having pursued her remedy at law to that point, she abandoned it and selected another remedy.</p> <p>“And this recognition by her of the obstacles in the way of levy and sale under the execution is in accord with the averments and prayers of her petition, which distinctly recognizes the validity of the transfer to the Commercial Alliance Insurance Company, and counts upon the undertaking of the company to hold the property in trust for her claim and that of all other beneficiaries under endowment certificates having liens by virtue of the by-laws.</p> <p>“ For the purpose of this reference I must hold that neither the entry of the judgment nor the filing of the petition gave to Mrs. Stuart’s claim any priority in the distribution of the assets of the association.”</p> <p>Mrs. Stuart, and Mr. Gilbert, receiver of the Commercial Alliance Life Insurance Co., both filed exceptions to the auditor’s report, and, their exceptions having been overruled by the lower court and the report having been confirmed, appealed to this court.</p> <p>The further material facts will be found stated in the opinion.</p>

<p>Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of tbe District of Columbia on an agreed statement of facts in an action, appealed to that court from a justice of the peace, on a government contractor’s-bond.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This suit was begun in the justice’s court in the name of' the United States to the use of the Standard Oil Company to recover upon a contractor’s bond the sum of $63.08, for materials furnished to said, contractor in the performance of his contract. Judgment was recovered by the plaintiff for the amount claimed, but on appeal to the Supreme Court of the District, judgment was rendered for the defendant; and this appeal is therefrom. It appears from the agreed statement of facts on which the case was submitted below, that on September 7, 1899, a contract was entered into by the-United- States with A. M. Clegg, whereby the latter undertook to remove certain material from a part of the channel of the Potomac river by dredging; work to be commenced September 11, 1899, and completed before September 1, 1900.</p> <p>As required by law, Clegg gave a bond, with the defendant as surety to secure the performance of the contract, which bond contained the following recital: Said Clegg “ shall promptly make full payments to all persons supplying him labor or materials in the prosecution of the work provided for in said contract.” Clegg subsequently entered into copartnership with II. A. Dugan, under the style of M. A. Dugan & Co., and the said partnership carried on the work provided for in the contract from December 1 to December 23, 1899, when the same ceased and the dredge was removed. No more work having been done, the United States annulled the contract in June, 1900. Before the contract was signed, Clegg made application to the Standard Oil Company for a supply of lubricating oil to M. A. Dugan & Co., for use in operating their dredge for one year. A contract was made specifying quality, quantity, and prices, and pursuant thereto oil was delivered upon said dredge, on December 5 and 12, 1899, of the value of $63.08. Two-fifths of said oil was used in operating the dredge between December 5 and December' 23, when its operation ceased. The remainder was not returned and none was paid for.</p>

Hearing on an appeal by one of several caveatees of a paper-writing alleged to be a will of personal property, from an order of the Supreme Court of the District of Columbia, sitting as a probate court, denying probate of the same, after trial of issues submitted to a jury; and also on a motion by the appellee to dismiss the appeal on the ground that it was taken by one of several parties, jointly affected by the order appealed from, without summons and severance.

The prosecution was under the act of Congress of March 2, 1895 (28 Stat. 811).

<p>Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia enjoining the obstruction of a right of way in a suit in equity for that purpose.</p> <p>The Court in the opinion stated the case as follows:</p> <p>The controversy in this case, which seems to be an entirely amicable suit between the parties, is as to the meaning and extent of a grant of a right of way. A plat of the property affected by the grant, and of the property immediately joining it, is hereto appended for the better understanding of the matter.</p> <p>[[Image here]]</p> <p>From this plat it appears that original lot number fourteen (14) , in square numbered one hundred and fifty-eight (158), in the city of Washington, had a front of sixty-three (68) feet on Eighteenth street West, and extended back eastward as a rectangle a distance of 120 feet. North of it was a part of original lot fifteen (15) , in the same square, with a front of about forty-six feet on Eighteenth street, but with an irregular north boundary, which caused it to terminate in a sharp point at the northeast corner of lot 14. North of this part of lot 15 was an alley 10 feet wide, but of peculiar configuration, conforming to the northern boundary of part of lot 15. First, it extended some little distance straight eastward, then made a detour to the southeast, and extended to the easternmost point of lot 15 and the northeastern point of lot 14. The greater part of this alley had been dedicated to the public by Messrs. Dulaney and Whiting, who owned lot 16 to the eastward of lots 14 and 15; but the rear part of it, a rectangle 10 feet by 26.81 feet, had been, it seems, retained by them as a “private alley.” For the sake of brevity it has been designated in the proceedings as “ private alley,” while the front part has been designated as the public alley. Why the distinction between the two parts was made is not apparent from the record of the case before us.</p> <p>Neither from the public nor the private alley was there any access to lot 14, which was separated from the latter by the triangular apex of the intervening part of lot 15. But this triangular apex, or triangle, as it may be designated for brevity, to the extent of 10 feet westward from the eastern end or point of the lot, and with a line running thence northward to the private alley, was at some time segregated from the remainder of lot 15, and a right of way granted over it to the owner or owners of lot 14, for the ordinary use of an alley. It does not appear in the record when or by whom or how this right of way over this triangle was created. But it is assumed to have been duly vested in the owners of lot 14 when these latter executed the deeds of conveyance now to be mentioned.</p> <p>On June 10, 1895, two ladies, Mrs. Phelps and Mrs. Brown, who then owned lot 14, conveyed the same in two separate parcels, one being 21 feet front and the other 42 feet front, and each with the same depth of 120 feet, to Oalderon Carlisle and Bandall Hagner, as trustees, to sell the same and to dispose of the proceeds of sale in a certain specified manner. Why the lot was, for the purpose of this conveyance, divided into two separate parcels, 21 and 42 feet front, respectively, does not appear. The conveyance •also included the little triangle, which has been mentioned as ■segregated from lot 15, and a right of way over the “ private alley ” mentioned “ for the ordinary uses of an alley ” for the north parcel of lot 14. In connection with the south parcel of lot 14, the one which was 42 feet front by 120 feet, there was granted for the use of this parcel a perpetual right of way “ for the ordinary uses of an alley ” for this parcel over the “ private alley ” before mentioned. Strangely ■enough, although this “ private alley ” could be reached from lot 14 only by passing over the triangle of lot 15, no mention is made of this latter in connection with this southern parcel ns constituting part of the right of way. It seems to have been presumed by all parties as included in it, inasmuch as the fee simple title to the triangle was apparently vested in the grantors in this deed of trust to Carlisle and Hagner,, and became Vested in the latter by virtue of this deed.</p> <p>On February 17, 1896, Carlisle and Hagner, trustees, sold to Mrs. Eliza O. Siebert, the appellee, the south 35 feet of lot 14 by the depth of the lot, being somewhat less in width than the second parcel of the lot as conveyed to them by the previous deed of 1895 ; and the conveyance was “ with the free and uninterrupted right of way forever,” for the purpose of ingress, egress, and regress over the rear ten (10) feet by the full width of the north twenty-eight (28) feet front of -said original lot numbered fourteen (14), and also over the “ triangle ” and the “ private alley.” It is under this deed that the appellee claims in the present ease.</p> <p>Mrs. Brown, one of the grantors in the deed of 1895 to Carlisle and Hagner, trustees, seems to have again become the owner of the northern part of lot 14, being 28 feet front by 120 feet in depth, and being all that was not conveyed to Mrs. Siebert; for by deed of February 23, 1901, she conveyed this portion to the appellant Robert L. Preston in fee simple, “ subject to right of way over the rear ten (10) feet by full width,” as expressed in the deed. And it was stated in argument that since the initiation of this controversy the appellant had acquired the fee simple title to the triangle of lot 15.</p> <p>It appears that at the time of the conveyance of the southern part of lot 14 to the appellee, on February 17, 1896, the whole lot was vacant and unimproved by any building thereon; but the appellee soon thereafter erected a dwelling-house for herself on the portion purchased by her, and has continued since and yet continues to reside in it. The appellant also, soon after his purchase of the northern part, proceeded to erect there a residence for himself, which occupied the whole front of his lot. The two portions were then separated by a brick wall, which extended to the rear end of the lot. In the rear part of this wall is a gate, or door, stated to be about three feet wide, which gives ingress and egress to and from the appellee’s lot over the right of way established across the rear 10 feet of the appellant’s lot. Up to the time of the appellant’s purchase and his construction of his dwelling-house this rear portion was entirely free and unobstructed in any way; and there seems to have been nothing to distinguish it in any way from the triangle and the private alley north of it. The distinction thus far existed only on paper.</p> <p>But in September of 1902, soon after the erection of his house, in order, as he says, to protect his premises from intrusion, the appellant, against the protest of the appellee, erected two gates along the northern line of his lot, and between his lot and the triangle of lot 15, and extending also across the entire width of the 10 feet reserved for the appellee’s right of way. These gates are of solid wood, about six feet in height, and are fastened to pillars sunk in the ground, one at each end of the 10 feet space, and one, a small middle pillar, rising, as it would seem, only a few inches above the ground, but well within the right of way. One gate is about seven feet in width, is fastened on the inside by a large iron bolt, and is kept entirely closed all the time. The smaller gate is about three feet in width, and is also provided with a bolt to fasten it from the inside. But how long and at what times this gate is kept closed and fastened there is controversy between the parties. The appellee alleges that it is kept fastened at night, and sometimes in the daytime. This the appellant to some extent denies. The appellant has also sodded over the entire space, 10 feet by 28, reserved for the appellee’s right of way.</p> <p>The appellee alleges that, in order to have her supplies and fuel brought into the rear of her premises, and ashes, garbage, and like things removed therefrom, it is necessary for the persons who come for such purposes to come round to the front door of her residence and to give notice, that the gates may be opened from the inside. She claims that by the erection of the gates her free and unobstructed right of way, guaranteed to her by her deed, was obstructed. Having demanded their removal, and being met with a refusal, she instituted the present suit by the filing of a bill in equity to enjoin the appellant from maintaining them.</p> <p>With her bill of complaint she filed as exhibits copies of the deeds of conveyance which have been mentioned, and two affidavits, one that of her husband, who was her agent in the purchase of her property, and the other that of a real estate broker, who acted as agent for Carlisle and Hagner, trustees. The purport of these affidavits was merely to explain and emphasize the purpose of the appellee in procuring the light of way. Upon the coming in of the appellant’s answer, the cause was set down for hearing “ upon the bill, the answer, and the papers and proceedings in the cause.” After hearing a decree was rendered in accordance with the prayer of the bill of complaint, whereby the defendant was enjoined from erecting and maintaining the gates and fences in question, or any other gates and fences across or over the space reserved for the appellee’s right of way.</p> <p>From this decree the defendant has appealed.</p>

<p>Hearing on. an appeal by the defendants from a decree of the Supreme Court of the District of Columbia, sitting as a District Court of the United States, in an admiralty proceeding by seamen against a vessel for wages claimed to be due them.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This is a suit in admiralty instituted by the appellees, who are seamen, in the Supreme Court of the District of Columbia sitting as a district court of the United States, against the bark “ Shetland ” and George W. Heath, its master, both <of whom were found in the harbor of Georgetown, D. C., for alleged failure to pay certain wages and subsistence claimed by the appellees to be due to them.</p> <p>On January 29, 1902, the bark “ Shetland,” owned in Boston, Massachusetts, was in the harbor of Philadelphia under George W. Heath, its master, loading a cargo for the port of Spain in the Island of Trinidad, in the West Indies, and intending a return voyage to the port of Georgetown (or Washington), D. C. She had finished, or was about to finish loading at the time; and within a day or two, as it would seem, she dropped down the Delaware river to Wilmington, in the State of Delaware, whence she cleared, or “ partially cleared,” according to the captain’s words, whatever they may mean, on February 3, 1902. She was detained, however, at Wilmington, on account of the formation of ice in the Delaware river, until February 26, 1902, when she actually sailed on her voyage.</p> <p>On January 29, 1902, three of the appellees, and on January 30, 1902, the other two, signed shipping articles before the United States Shipping Commissioner in Philadelphia, or his deputy, to go on board the “ Shetland ” as seamen for the proposed voyage. The articles did not contain any statement of the time when they were to go on board, as the statutes of the United States require. The spaces where-such entries should have been made were left blank, and a copy of the articles so imperfectly made up was handed to the master of the vessel. He filled up the blanks at the time when he sailed with the date of sailing, February 26, 1902. At the end of the return voyage the appellees were discharged in the harbor of Washington, and the captain proceeded, or offered, to pay them in full from February 26, 1902, to the end of the voyage. The seamen declined to accept this as payment in full, and claimed to be entitled to wages and subsistence also from January 31, 1902, at which time, as they claimed, they were told that they would be required to be on board, to February 26, 1902, during all of which time they allege they were held in waiting.</p> <p>The question in issue, therefore, is whether the seamen were duly informed that they would be required to be on board on January 31, 1902, or whether the understanding was that their compensation would begin only on February 26, 1902, when they actually went on board and the bark was ready to sail on its voyage.</p> <p>No agreement having been reached between the seamen and the captain of the vessel, the former instituted the present proceedings by filing their libel in admiralty and causing the vessel to be seized. Subsequently the vessel was released on the filing of the usual bond. The master answered the libel denying the right of the libellants. Soon afterwards the owners of the vessel came in, and asked to be made and were made codefendants with the master. They answered the libel by adopting the answer of the master as their own. Testimony was then taken, and upon hearing the court below decreed in favor of the libellants. The defendants have appealed to this court.</p>

Hearing on an appeal by the defendants from a decree of the Supreme Court of the District of Columbia, overruling a demurrer to and granting the prayers of a bill in equity to construe a will.

<p>Appeal Practice; Appeal Bond, Approval op.</p> <p>While if an appeal bond be filed and submitted to the lower court within twenty days and the court holds the bond sub judiee beyond that time, the court may then approve it mine pro time, the court has no power to approve such a bond which, although filed before the expiration of the twenty days, is not submittéd to the court for approval until after the expiration of that period; construing Bule X of this court which provides that no appeal shall operate as a supersedeas unless within twenty days the appellant shall “ file in the clerk’s office ” of the lower court, “ a bond, with surety or sureties to be approved by one of the justices ” of that court.</p>

<p>Hearing od. an appeal by tbe petitioners from an order ■of tbe Supreme Court of tbe District of Columbia, sustaining a motion to quash a writ of certiorari to a justice of tbe peace, and quashing tbe writ.</p> <p>Tbe Court in tbe opinion stated tbe case as follows:</p> <p>Tbis is an appeal from an order of tbe Supreme Court ■of tbe District of Columbia quashing a writ of certiorari.</p> <p>Suit was instituted on July 16, 1902, before Robert H. Terrell, a justice of tbe peace, assigned to subdistrict No. 8, by tbe appellee, Baxter Morton, against tbe two appellants, Anderson and Cullen, jointly for an indebtedness of $250 claimed to be due from them to tbe appellee, with interest. ,On tbe same day, Anderson was served with summons. On July 21,1902, be appeared and asked for a continuance to July 31, 1902. On tbe same day Cullen entered an appearance also. On July 22, 1902, a plea to tbe jurisdiction was filed. On July 31, 1902, a second continuance was granted to August Y, 1902. On August Y, 1902, affidavits of defense were filed. On August Y, 1902, motions to quash writ (of summons) on plea to tbe jurisdiction previously filed were overruled. Thereupon issue was joined and trial bad; and judgment was rendered for the plaintiff for the amount claimed, with interest and costs. All this was on August 7, 1902.</p> <p>No appeal seems to have been taken; or, if taken, it does not appear in the record before us.</p> <p>On August 9, 1902, a petition was filed by the appellants in the Supreme Court of the District of Columbia for the-writ of certiorari to issue to the justice of the peace, requiring him to certify to the court the record of his proceedings in the premises. As stated in the petition, the writ was sought on three several grounds: (1) That Terrell had been illegally appointed to the office of justice of the peace; (2) that he was without jurisdiction in the case; (3) that, even if legally appointed, he exceeded his jurisdiction in rendering judgment. The petition was supported by an affidavit of the two petitioners, in which, in addition to these grounds for the writ, it was averred also that the petitioners resided’ at certain stated places in the District of Columbia, which, although not so stated either in the affidavit or petition, are admitted in open court by the counsel for the appellee not to-be within the subdistrict for which Terrell was assigned.</p> <p>The writ was issued, and return was made thereto by Terrell as justice of the peace, and in his return were stated the-proceedings before him, as hereinbefore mentioned. Thereupon a motion to quash the writ was made, and upon hearing this motion was allowed and the writ was quashed and the papers were returned to the justice of the peace for further-proceedings therein according to law.</p> <p>From the order quashing the writ the petitioners have appealed to this court.</p>

Hearing or an appeal by tbe petitioner from an order of tbe Supreme Court of tbe District of Columbia discharging a writ of habeas corpus. Tbe Court in tbe ojfinion stated tbe case as follows: Tbis is an appeal from a judgment discharging a writ of habeas corpus that bad been obtained to arrest tbe execution of a warrant for tbe extradition of the appellant.

Hearing on an appeal by tbe plaintiff from a judgment -of tbe Supreme Court of tbe District of Columbia, on tbe verdict of a jury directed by tbe court in an action against tbe District of Columbia to recover damages for personal injuries. . Tbe Court in tbe opinion stated tbe case as follows: Tbis is an appeal from tbe Supreme Court of tbe District of Columbia.

<p>Hearing on an appeal by tbe defendant from an order of be Supreme Court of tbe District of Columbia, sitting as m equity court, granting alimony- pendente lite and counsel fees, in a suit by a wife for maintenance; and also on a motion by tbe complainant, tbe appellee, to dismiss tbe appeal on tbe ground that tbe order appealed from was not an appeal-able order.</p> <p>Tbe Court in tbe opinion stated tbe case as follows:</p> <p>Tbis is a suit for maintenance, instituted in tbe Supreme Court of tbe District of Columbia by tbe appellee, Margaret A. Lesb, as complainant or petitioner against tbe appellant, William W. Lesb, ber busband, as defendant. In ber bill of complaint, or petition, sbe alleges in substance tbe marriage of tbe parties, desertion and abandonment of the petitioner by the defendant, failure on tbe part of tbe defendant to contribute anything to ber support, ber dependence on ber own earnings for such support, and that sbe is well advanced in years and infirm in health; and tbe prayer of tbe petition is that tbe defendant should be required by tbe decree of tbe court to pay to ber monthly a sum. reasonably sufficient for ber support; and also for general relief. Tbe appellant, as defendant, answered tbe petition; and while not denying its general allegations, made counter charges against ber of gross misconduct on ber part deemed by him to be sufficient to justify bis own course of conduct toward ber.</p> <p>Tbe petition was filed on December 11, 1901. In January of 1902 an application seems to have been made for alimony pendente lite and counsel fees, which at that time was denied by tbe court. Tbe appellant filed bis answer on February 5, 1902; and thereupon it seems that testimony was taken. On July 28, 1902, after such testimony had been taken and returned into court, and when, as we are advised, the cause liad been set down on the calendar of the court for hearing, the application was renewed for the allowance of alimony pendente lite, under the designation of “ due maintenance,” •and for a reasonable counsel fee; and the petitioner supported the application with her own affidavit, wherein she reiterated the substantial allegations of her petition in regard to her ■own want of means and the ability of the defendant to contribute to her support; and also alleged that the testimony taken and filed in the cause, to use the language of the affidavit, “ utterly refuted the false and defamatory answer of 'the defendant.” On August 2, 1902, the defendant filed a ■counter affidavit, wherein it was alleged that the petitioner did have means of her own sufficient for her support, and that the testimony filed in the cause did not show what the petitioner in her affidavit alleged that it did show.</p> <p>“ TJpon this application and affidavits and the answer of *the defendant and the accompanying affidavits,” according to the recital in the record, the court ordered that the defendant ■should pay to the petitioner the sum of $5 a week, until the further order of the court, and the sum of $30 for counsel fee.</p> <p>From this order the defendant has appealed.</p>

<p>Hearing on an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia in an action to recover rent.</p> <p>The Court in the opinion stated the case as follows:</p> <p>The appellant, Raymond S. Donaldson, sued the appellee, Benjamin F. Uhlf elder, in the court of a justice of the peace to recover $46, the same being for the rent of a dwelling for the month beginning February 20, 1902, according to the terms of a written lease. From an adverse judgment in that court the defendant appealed to the Supreme Court of the District, wherein judgment was rendered in his favor, and therefrom the plaintiff has prosecuted this appeal.</p> <p>The lease was executed by both parties on January 14, 1902. By it’s terms the appellant leased the premises to the appellee by the month for the sum of $46, payable monthly in advance beginning on January 20, 1902, the day on which possession was to be taken. It was stipulated that the lessee should give thirty days’ notice of his intention to terminate the lease and vacate the premises. There was no .covenant relating to repairs. The lessee paid the first month’s rent on January 20, 1902, and at once entered upon possession with his family. On the last' day of the month he removed from the premises without having given the thirty days’ notice of his intention so to do, and refused to pay the rental for the second month.</p> <p>Over the objection of the appellant, the appellee was permitted to introduce parol evidence tending to prove the following facts: That the lease, already signed by the appellant, was brought to his office on January 14 by the ap1 pellant’s clerk, who presented it for his signature. That he refused to sign unless the appellant would first promise to put the premises in good repair. That the clerk having no authority to make such promise, appellee called appellant by telephone and told him he would not sign the lease unless he would put the premises in repair. That appellant then and there made said promise, whereupon appellee signed his name to the contract and delivered it to the clerk who took it away. That he removed his family and effects to the premises on January 20, relying upon the promise aforesaid. That the house needed repairs badly; the heating apparatus was in bad order and failed to heat the bouse; tbe cellar floor bad been flooded, some of tbe rooms were damp from leakage, and the paper was wet and damaged. That some of bis lodgers left because of tbe condition of tbe rooms. That appellant, though requested, failed to make tbe promised repairs, and appellee removed at tbe end of tbe month.</p> <p>The jury were instructed, if they believed this evidence, to return a verdict for tbe defendant, otherwise to find for tbe plaintiff tbe amount claimed.</p>

Hearing on an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia upon tbe verdict of a jury directed by tbe court in an action to recover damages for personal injuries.

Hearing on an appeal from a decision of tbe Commissioner of Patents in an interference proceeding. Tbe facts are sufficiently stated in tbe opinion.

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

<p>Hearing on an appeal from a decision of tbe Commissioner of Patents in an interference case.</p> <p>Tbe facts are sufficiently stated in tbe opinion.</p>

Hearing on an appeal by two of several defendants from a judgment of tbe Supreme Court of tbe District of Columbia, on verdict, in an action on a promissory note. Held: for which he had given full value, upon which the names of all the same parties, except Bryan, appeared, and which had been surrendered to Gilbert B. Towles upon the delivery of the present note to the plaintiff.

Hearing on an appeal by the defendant from a jr dgment of the Supreme Court of the District of Columbia upon verdict, in an action to recover damages for personal injuries. The Court in the opinion stated the case as follows: This action was brought by the appellee Barbara Wills against the appellant Julius I. Atchison to recover damages for personal injuries sustained by what is alleged to have been the gross and wanton negligence of one of the employees of the appellant.

<p>Hearing on an appeal by the complainants from a decree of tbe Supreme Court of tbe District of Columbia, sustaining a demurrer to and dismissing a bill in equity to- enjoin tbe Secretary of tbe Interior, tbe Commissioner of Indian Affairs and others.</p> <p>Tbe Court in tbe opinion stated tbe case as follows:</p> <p>Tbis is an appeal from a decree of tbe Supreme Court of tbe District of Columbia sustaining a demurrer to, and dismissing a bill praying an injunction to restrain Ethan A. Hitchcock, tbe Secretary of tbe Interior, William A. Jones,. Commissioner of Indian Affairs, and J. George Wrigbt, Indian Inspector, and J. Blair Sboenfelt, Indian Agent, officers acting under tbeir authority, from seizing, and removing from lands in tbe Indian Territory occupied by tbe Chickasaw Indian Nation, certain cattle belonging to tbe complainants.</p> <p>As stated in the bill, tbe complainants, Edwin T. Morris, Edlar B. Blanton, William G. Maxwell, Phillip S. Wither-spoon, Isaac H. Harness, Thomas Peery, B. L. Glover, J. B. Spragins, O. M. Keyes, and Milton E. Ikard are all citizens of the United States, residing in Texas, Missouri and the Chickasaw Nation, and no one of them is a member of any of the Indian tribes. The case made by the bill is fairly stated in the brief of the appellants as follows:</p> <p>The bill alleges that each of the complainants is the owner of not less than five hundred head of cattle and horses, and some of them owning more than a thousand head each, all of which are located and grazing upon land in the Chickasaw Nation, which land is and has been held, used and claimed by individual Indians of said nation as their approximate shares upon allotment; that their said cattle are grazing upon said land under contract with said individual Indians, and upon terms satisfactory to such Indians; that most of their cattle and horses were bred and raised in said nation, and have aever been elsewhere; that many of them were acquired by the complainants by purchase from individual members of the Chickasaw Nation. Some of said cattle and horses have been introduced into the territory of said nation during the year 1902, and there are now more than one hundred thousand such cattle and horses located in the territory of said nation owned and held by citizens of the United States not members of said Chickasaw Nation, upon like terms and conditions as the cattle and horses of the complainants, and said cattle and horses exceed in value the sum of fifteen ($15) dollars per head. The bill further alleges that there is not now, and for four years there has not been any prblic domain in said nation, but practically all of the land therein has been and is now inclosed, claimed and occupied by individual members of said nation, as their approximate shares upon allotment, and over such lands so inclosed and held, the tribe or nation is and has been without jurisdiction or control. The bill further alleges the enactment on May 3, 1902, by the legislature of said Chickasaw Nation, of the act found on page 6 of the record, whereby said legislature sought to impose an annual tax of twenty-five cents per head upon all cattle and horses in said nation, not belonging to members thereof. That thereafter, and on June 3, 1902, the acting Secretary of the Interior, in aid of said statute, promulgated certain regulations, found on pages 6 and 7 of the record. That the tax thus sought to be imposed the complainants and other citizens of the United States have refused and still refuse to pay, because they believe the same to be illegal and unauthorized. The bill further alleges the belief of the complainants that said Chickasaw legislature had no power or authority to enact any such statute as that cited, and that the Secretary of the Interior had no power or authority to promulgate and enforce any such regulations as those cited, and that the statute and the regulations are, in the belief of the complainants, null and void, and cannot be invoked as a justification for the threatened seizure of the cattle and horses of said complainants and other citizens of the United States, as set forth in the bill of complaint. The bill further alleges that the enforcement of said statute and regulations would not only result in a multiplicity of suits and almost endless litigation, but would injure the said cattle and horses of the complainants and other citizens of the United States, deprive them of water and grass, and throw them upon the hands of their owners at a time when they have no means of caring for them or providing them with feed or pasture, thereby compelling the owners to dispose of said cattle and horses at a ruinous sacrifice, and at a time when they are not in a condition to be marketed, and when there is little or no demand therefor, whereby the complainants and other citizens of the United States would suffer irreparable loss and damage, for which they have no adequate remedy at law.</p> <p>The threatened action of the Secretary and his subordinates, complained of in the bill, arc founded on the following act of the legislature of the Chickasaw Nation, passed May 3,1902:</p> <p>“An act to prescribe privilege or permit taxes and defining the manner of their collection.</p> <p>“ Be it enacted by the legislature of the Chickasaw Nation:</p> <p>“ Section 1. That there shall be paid upon live stock owned or held by noncitizens within the limits of the Chickasaw nation, an annual privilege or permit tax as follows: On cattle, horses and mules, twenty-five cents per head; and on sheep and goats, five cents per head: Provided, that there shall be exempted from the provisions of this act, when owned and used by the head of a family, two cows and calves, and one team, consisting of two horses or two mules, or one horse and one mule; and the provisions of this act shall also apply to all live stock introduced into the Chickasaw nation since January 1, 1902, upon which the tribal taxes imposed by the laws of the Chickasaw nation have not been paid, with like force and effect as if such cattle had been owned and held within the limits of Chickasaw nation for one year prior to the passage and approval of this act.</p> <p>“ Sec. 2. That such privilege or permit taxes shall hereafter be payable to such person or persons, and collected under such rules and regulai'ons as may bo prescribed by the Secretary of the Interior.</p> <p>“ Sec. 3. That the expenses of collecting such privilege or permit taxes shall be deducted from the gross collections, and the balance paid quarterly into the treasury of the Chickasaw nation.</p> <p>“ Sec. 4. That such privilege of permit taxes shall be due and payable annually, upon demand, and if such taxes are not paid when demanded, the live stock upon which such taxes are due, shall be held to be in the Chickasaw nation without its consent, and unlawfully upon the lands of the Chickasaws, and the presence of such live stock, and owners or holders thereof, within the limits of said nation, shall be deemed detrimental to the peace and welfare of the Chickasaw Indians.</p> <p>“ Sec. 5. That all acts or parts of acts in conflict herewith, be and the same are, hereby repealed; and this act shall take effect from and after its approval by the President of the United States.”</p> <p>The foregoing enactment was submitted to, and approved by the President of the United States, on May 15, 1902, under the authority of section 29 of the act of Congress approved June 28, 1898, and commonly called the “ Curtis ” bill (30 Stat. 495), which is in the following language:</p> <p>“ It is further agreed that no act, ordinance or resolution of the council of either the Choctaw or Chickasaw tribes, in any manner affecting the land of the tribe, or of the individuals, after allotment, or the moneys or other property of the tribe or citizens thereof (except appropriations for the regular and necessary expenses of the government of the respective tribes), or the rights of any persons to employ any kind of labor; or the rights of any persons who have taken or may take the oath of allegiance to the United States, shall be of any validity until approved by the President of the United States. When such acts, ordinances, or resolutions passed by the councils of either of said tribes shall be approved by the governor thereof, then it shall be the duty of the national secretary of said tribe to forward them to the President of the United States, duly certified and sealed, who shall, within thirty days after their reception, approve or disapprove the same — said acts, ordinances, or resolutions, when so approved, shall be published in at least two newspapers having a bona fide circulation in the tribe to be affected thereby, and when disapproved shall be returned to the tribe enacting the same.</p> <p>“ It is further agreed, in view of the modification of legislative authority and judicial jurisdiction herein provided, and the necessity of the continuance of the tribal governments so modified, in order to carry out the requirements of this agreement, that the same shall continue for a period of eight years from the fourth day of March, eighteen hundred and ninety-eight.”</p> <p>On June 3, 1902, the Secretary of the Interior promulgated regulations looking to the collection of the permit tax aforesaid. . These require the tax to be paid on January 1, of each year, or prior to the introduction of the stock, with description of the number, brands, etc., of said stock under oath, and as to all stock then in the territory, within ten days after notice given. If taxes are not paid within this time all stock found within the limits of the Chickasaw nation will be considered as unlawfully there, and measures will be taken to remove them, together with their owners and holders, without further notice.</p>