Volume 25 — Appeals, District of Columbia

Hearing on an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia upon a verdict directed by tbe Court in an action to recover damages for personal injuries. The 'Court in the opinion stated the case as follows: .

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia upon tbe verdict of a jury in an action for breach of contract to repurchase certain shares of stock. The facts are sufficiently stated in tbe opinion.

<p>Patents; Amendments of Application; Claims.</p> <p>1. An applicant for a patent in his endeavor to protect his invention may amend his specification and claims, so long as he keeps within the requirements of the statutes and rules of the Patent Office; but he cannot be permitted at any time to introduce new matter into his application, and obtain therefor a date as of the date of his original application.</p> <p>2. Where an applicant’s ball-retaining ring is a simple invention, there is no warrant for introducing ambiguous terms, thereby failing to clearly and correctly describe it.</p> <p>3. Where the applicant for a patent originally disclosed standards springing from both edges of an annular base, and according to the original disclosure both were necessary, it was held that an amendment claiming a base having standards springing from one edge only involved new matter; and where the original case disclosed the top pieces of the standards with straight sides, it was held that an amendment stating that those top pieces were sector shaped or flaring also involved new matter.</p> <p>4. An applicant’s claims to a ball-bearing ring are properly rejected by the Commissioner of Patents, where they do not correctly describe his invention, but include new matter borrowed from a patent granted to another party.</p>

<p>Patents; Interferences; Priority; Burden of Proof; Originality of Invention.</p> <p>1. In an interference proceeding between a patentee and an applicant, the subject-matter of which was an invention in the construction of baking-ovens, it was held, affirming a decision of the Commissioner of Patents, that the applicant was the first inventor of the construction covered by certain of the counts of the issue, and that the patentee was the first inventor of the construction covered by the other counts.</p> <p>2. Where, in an interference case, it appeared that the applicant filed his application after the issue of a patent to his opponent and copied the claims of the patent for the purpose of forcing an interference, it was held that the burden was on the applicant to prove his case beyond a reasonable doubt.</p> <p>3. In an interference case between an applicant and a patentee, where the applicant proves that he made patterns embodying certain counts of the issue before any date proved by the patentee, and the patentee asserts they were made from disclosures by him, but this is denied by the applicant, the burden is on the patentee to prove the disclosure, and if he fails to sustain it the applicant will be entitled to an award of priority of invention on those counts.</p>

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

Hearing on an appeal by tbe defendant from a judgment of the Supreme Court of the District of Columbia on a verdict directed by the court in an action upon a foreign judgment.

Hearing on an appeal from an order of the Supreme Court of the District of Columbia sitting as the Probate Court, appointing a child of a decedent coadministratrix of the estate with the widow. The Court in the opinion stated the case as follows: This cause is here for the second time. It was formerly before us (24 App.

<p>Equity; Interpeeadeb; Amendment; Privity,</p> <p>1. The fact that one of tro claimants of the proceeds of a life insurance policy has brought suit against the insurance company on the policy in another jurisdiction will not prevent the maintenance of a bill of interpleader subsequently filed by the company in this jurisdiction against both claimants, where both are personally within this jurisdiction and subject to personal service of process. 2. On an appeal from a decree of interpleader by one of two defendants, the fact that the court below in its opinion referred to the answer of the defendant not appealing is not reversible error, where there is sufficient in the bill and the answer of the defendant appealing to warrant the decree.</p> <p>3. The allegations of a bill of interpleader by an insurance company are sufficient in themselves to sustain the bill, where they show that two persons have preferred claims against the company; that the claims are for the same thing; and that the company has no beneficial interest in the thing claimed; and that it cannot determine without hazard to itself to which of the defendants the thing belongs.</p> <p>4. The entry of a decree of interpleader immediately after an amendment of the bill, which amendment went only to the extent of increasing the amount that the complainant offered to pay into the registry of the court, and without waiting for the filing by one of the defendants of an answer to the bill as amended, is not reversible error, where such defendant was in no way prejudiced.</p> <p>5. Qucere, — whether in order to sustain a bill of interpleader it is requisite that the thing or debt to determine the title to which the bill is filed is based upon claims thereto derived or proceeding from a common source.</p> <p>6. It cannot be said that there is no privity between the defendants to a bill of interpleader by an insurance company, and that the bill is therefore not maintainable, where the claims of both defendants are founded upon a policy issued hy the complainant, the proceeds of which both of the defendants claim.</p>

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

Hearing oil an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia upon a verdict directed by tbe court in an action upon a policy of accident insurance. The Court in the opinion stated the case as follows: This action was brought hy Alice M. Patterson against the Ocean Accident & Guarantee Corporation, Limited, of London, England, upon a contract of accident insurance made with Henry E. Patterson.

<p>Landlord and Tenant; Notice to Quit; Waiver; Appellate Practice; Bond in Landlord and Tenant Proceedings; Execution, Suspension of.</p> <p>1. A thirty days’ notice to quit is not void because it fails to specify the day of the termination of the tenancy, where it is dated and served the full thirty days before the end of the term. (Construing Code, see. 1219.)</p> <p>2. The receipt by a landlord, after notice to quit, of rent for a new term or part thereof, amounts to a waiver of his right to demand possession under that notice; but receipt of rent for the current month pending a notice to quit does not have that effect.</p> <p>3. Where a tenant is unsuccessful on his appeal to the Supreme Court of the District of Columbia from a judgment of a justice of the peace in favor of his landlord for possession, the judgment on the appeal against the tenant and his surety, under sec. 1233, D. C. Code, should be for intervening damages to the property and compensation for the use and occupation thereof, and not for the rent stipulated in the expired contract.</p> <p>4. But a judgment in such a case will not be arrested because the verdict, instead of being for intervening damages and compensation for the use and occupation of the property, is for a specified sum of money, “intervening rent and damages,” where there is -nothing to show that the form of the verdict was called to the attention of the court below. It will be presumed on appeal that, if it had been, it would have been amended.</p> <p>5. Where a bill of exceptions recites that a tenancy expired cm November 25, such recital will be taken as true, although it is suggested by counsel in argument that the tenancy actually expired on November 24, as shown by the lease, which had been misrecited in the bill of exceptions.</p> <p>6. It is too late to raise the question for the first time in this court, that, a suit brought to this court on appeal was prematurely instituted, where that fact was not called to the attention of the lower court in any way.</p> <p>7. A motion to quash a writ of restitution on the ground that it could. not lawfully issue during the time allowed for perfecting an appeal to this court is properly overruled, where the writ was issued and executed three days after the rendition of the judgment, but the appeal was not perfected by giving a supersedeas bond. The mere entry of a notice of appeal will not stay execution, although the lower court, may, perhaps, in its discretion, and for good cause shown, suspend execution for a reasonable time after judgment. (Construing see. 1074, D. C. Code.)</p>

<p>Patents; Interference; Diligence; Tests; Experimental Devices.</p> <p>1. Where, in an interference case, it appears that for at least a year after conception and disclosure, during which time a rival entered the field, the only effort of one of the parties towards completing his invention consisted in more or less desultory talk about his invention, indecisive efforts to get it adopted by a corporation, and in a leisurely manner making drawings of the device; and where it is shown that it would have cost but little to have actually reduced the invention to practice and to have made proper tests, and that he was free to take up this work if he so desired, and he had ample means to have at least filed an application, and was not aroused to activity until his rival’s device was shown to him, — it was held that he was not in the exercise of reasonable diligence.</p> <p>2. The same act or set of acts may or may not constitute a reduction to practice, modified, as they may be, by the special circumstances of the particular case.</p> <p>3. In determining whether a device constitutes a reduction to practice, its size is not necessarily controlling, nor is mechanical perfection, or that there are “possibilites of greater excellence in shape, location, arrangement, material, or adjustment,” — essential; but it is essential that the device should show that the work of the inventor is finished physically as well as mentally, and nothing left for the inventive genius of the public.</p> <p>4. It is not necessary, in order to constitute reduction to practice, that actual tests of the invention be made in OTder to complete the inventive act (following Mason v. Hepburn, 13 App. D. C. 86); but the device ' relied on must, however, if it has not been worked, clearly be capable of work, and not have been a mere experiment.</p> <p>5. Where it appears in an interference proceeding that both parties subjected their inventions to tests, it will be deemed that it is in effect admitted by both parties that the device belongs to that class of inventions which requires actual use or thorough tests to demonstrate its practicability.</p> <p>>6. Where an invention undoubtedly belongs to that class which requires either actual use or thorough tests to determine its practicability, there can be no actual reduction to practice until one or the other thing takes place and is proven.</p> <p>7. Where it appears that an invention is a radical departure from previous-methods, in order to establish the fact of reduction to practice thorough tests are necessary.</p> <p>8. Where the invention in controversy in an interference case is a friction-spring, and it appears from the testimony of one of the parties that-the device embodying the invention was first put in a vise and subjected to pressure, but there are no facts appearing of record which show what the pressure was, nor are any facts stated which enable-the court to determine whether the inventor’s conclusion is justified, that the result of the test was satisfactory, the fact of reduction to-practice by such party is not proved.</p> <p>9. Where it appeared in an interference case that a friction-spring was tested in a vise under a steam hammer, and broken under the last-test, and no measurements were taken to show the tensile strength of the spring, or the pressure to which it was subjected, and no facts appear of record upon which the court can conclude that the device was adapted to perform the work for which it was built, — it was held that, the device was a mere experimental one, and not a reduction to practice.</p> <p>10. In an interference case involving the invention of improvements in. friction-springs, where it appeared that the appellant was the first to conceive, disclose, and make an experimental device embodying the invention of the issue, which device was tested experimentally, but that-he was the last to reduce the invention to practice, and he failed to exercise ordinary diligence in connecting his earlier conception with his later reduction, it was held that he failed to overcome the presumption that his rival was the first inventor, arising out of his being the earliest to apply for a patent; and the decision of the Commissioner of Patents was affirmed.</p>

Hearing on a motion by the appellees to dismiss an appeal from a judgment of tbe Supreme Court of the. District of Columbia dismissing a petition by an intervening claimant of goods seized under execution. The facts are sufficiently stated in the opinion.

Hearing on a petition by John-W. Morris to this court for tbe writ of prohibition to the Police Court of the District of Columbia, commanding it to cease the prosecution of the petitioner for the alleged violation of a municipal regulation.

<p>Patents; Interference; Reduction to Practice.</p> <p>I. In an interference case involving an improvement in voting-machines, proof of conception in November, 1894, by one of the parties, whose application was filed February 27, 1897, and construction by him, about the middle of the following month, of a full-sized machine publicly operated in the early part of the following February, shows a high degree of diligence on his part; for, having made an actual reduction to practice, it was not incumbent upon him, either to preserve his rights or demonstrate his entire good faith, that he should file an application earlier than required by the statute then in force relating to that subject.</p> <p>2. Where all three tribunals of the Patent Office have agreed in their findings of fact, this court will not disturb those findings except under very unusual circumstances.</p> <p>3. A device which merely illustrates the mode of mechanical construction and operation of the conceived idea, and which may be said to be an embodiment of the invention in visible form, is not necessarily a reduction to practice; for, though the device is operative as a mechanical movement, there is no certainty that it will perform its function when put to use under full conditions of practical use. (Following Gallagher v. Hien, ante, 77.)</p> <p>4. Where an exhibit embodies an invention and is operative as a mechanical movement, yet various parts of the structure, which are the essence of a practical working machine, are so crude and even certain of derangement that no one would seriously consider building machines in accordance with the exhibit without further experiments, such a device is not a reduction to practice.</p> <p>5. Where in an interference case the evidence was not convincing that the device under consideration, a voting machine, was capable of being used for practical purposes, and an examination of the device, in connection with the consideration of the facts of the record, including testimony to the effect that it was used in the election of directors of a certain corporation, warranted the conclusion that it was essentially an experimental device and never passed beyond that stage, it was held that such a device was not a reduction to practice.</p> <p>■6. In an interference case, where the question is one of alleged reduction to practice, the proofs tending to establish that fact must be considered as a whole, and the attendant circumstances must he horne in mind; and the action of the inventor with respect to the exhibited device, prior to the necessity for its use in the interference proceeding, his failure to construct other machines, or promptly file an application, and the fact that the application when filed disclosed different features from those in the exhibit,- — all will tend to the conclusion that the device was not a reduction to practice, but simply an experimental device.</p> <p>7. The question of whether a too rigid rule as to what constitutes a reduction to practice may not have been heretofore laid down, suggested hut not considered, there being nothing in the facts of the case under consideration to call for any re-examination of the questions of law involved in the decision of what constitutes a reduction to practice.</p>

<p>Occupation Tax; Building and Other Contractors; Involuntary Payment of Tax;</p> <p>1. A wood and coal dealer who in the course of his business contracts to furnish wood and coal in large quantities to the general and municipal governments is not required to pay an occupation tax under par. 46, sec. 7, of the act of Congress of July 1, 1902, imposing an annual tax of $25 upon “building and other contractors,” the term “other contractors” being too vague to be enforced. (Following Lockwood v. District of Columbia, 24 App. D. C. 569.)</p> <p>2. Payment, under protest, of an occupation tax after arrest but before trial in the police court, is not a voluntary one, and may be recovered back if unwarranted, when such payment was made to escape the mortification and publicity of trial, and where the penalty might exceed the amount of the tax, and the right of appeal from the police court is not absolute.</p>

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia upon a verdict directed by the court in an action to recover damages for personal injuries. The Court in the opinion stated the case as follows: This is an action to recover damages for personal injuries sustained by Ida I. Rockwell while a passenger on the cars of defendant, November 15, 1898. The declaration was filed May 23,. 1900.

Hearing on an appeal from an order of the Supreme Court; of the District of Columbia, granting a motion of the respondent' to dismiss a petition for the writ of certiorari, quashing the* writ, and dismissing the petition. The Court in the opinion stated the case as follows: This is a proceeding in certiorari in the supreme court of the District of Columbia to bring up the record of certain assessments and a tax sale thereunder, and for a cancelation of the tax sale.

<p>Hearing on an appeal by the relator from an order of the Supreme Court of the District of Columbia, dismissing a petition for the writ of mandamus.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This is an appeal from an order dismissing a petition for a writ of mandamus filed on behalf of the relator, Juan Rodriguez, against John 1VI. Bowyer and others, constituting the Board of Labor Employment at the United States Navy Yard in the city of Washington.</p> <p>It appears from the petition and return and an agreed statement of facts that petitioner was born in Porto Rico on December 6,1884; that he remained therein until after the ratification of the treaty of Paris and the passage of the Eoraker act, and became and is a “citizen of Porto Rico.” He came to the District of Columbia, and on February 16, 1904, made application to the Board of Labor Employment for admission to examination and registration under the regulation providing that no person shall be given employment as a mechanic or laborer until he registers. Among other qualifications required by the Tegulation is one that the applicant shall be a citizen of the United States. It is unnecessary to state the other qualifications relating to capacity and so forth, for it is admitted that the board found that they were possessed by. the petitioner, and denied registration on the sole ground that the petitioner, though a citizen of Porto Rico and owing allegiance as such to the United States, was not, under the Constitution and laws of the United States, a citizen of the latter.</p>

<p>Hearing on an appeal (specially allowed) by tlie defendants from an order of the Supreme Court of the District of Columbia, overruling a demurrer to a bill in equity seeking to avoid a trust created by a will, to recover certain real estate, and for an account and recovery of tbe revenues thereof.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This is a special appeal allowed by order of this court from an order overruling appellant’s demurrer to a bill in equity.</p> <p>The bill filed by appellees, Brooke P. Taylor, Nannie M. McCormick, and Rosalie McCormick, as heirs at law of Levin M. Powell, deceased, seeks to avoid a trust created by the will of said Powell, and to recover certain real estate in the City of Washington, and to have an account and recovery of the revenues thereof.</p> <p>It is alleged that said Levin M. Powell, an admiral on the-retired list of the United States Navy, died January 15, 1885, leaving a will that had been executed October 27, 1884. The-paragraph of the will which creates the trust reads as follows:</p> <p>“Item: — Fifth, it being my wish and desire to make some-contribution to the Navy of the United States, of which I have-been for so many years, I hope, a worthy member, and so in a. measure to pay off the debt I feel I owe the honorable profession I have pursued through a long lifetime, and to that end to establish in the Columbian University in the District of Columbia, in a manner most conducive for that purpose, a means for the education of such young men as may be willing-to profit therefrom in the branches of education best fitted to. prepare them for officers of the line in the Navy of the United States, or for the places of mates or captains in the merchant marine service of the United States, I do hereby give, devise,, and bequeath to the said Columbian, University and its successors all those certain pieces or parcels of ground situate and. lying in said city of Washington, and known and distinguished on the plats of said city as lot lettered 0, and the east five feet from front to rear of lot D, of Samuel D. King’s subdivision of' lots numbered one (1), two (2), three (3), thirty-two (32), and thirty-three (33), in square numbered one hundred and twenty-six (126), duly recorded in the surveyor’s office of said city,, beginning for the said parcel at a point on I street north,, distant seventy-eight (78) feet west from the corner of I and 17th street, and running thence north parallel with 17th street one hundred and five (105) feet to a fifteen-foot alley; thence west with said alley thirty-five (35) feet; thence south one hundred and five (105) feet to the north line of said I street; thence east with said I street thirty-five (35) feet to the point of beginning, together with all and singular the improvements,, rights, privileges, and appurtenances to the same belonging, in trust for the purposes following, and for no other purpose whatever, — that is, in trust to create an endowment to be known as the Admiral Powell endowment, and with that view to take the said property, and the same to rent from year to year or to lease for a term 'of years as to the trustees and overseers of said university shall seem best; and the rents, issues, and profits arising therefrom, after first paying out of the same the taxes, insurance, repairs, and other expenses, to devote as far as, the same will go, under such regulations as to the said trustees and overseers may seem best, to the free education of sucli young men as may desire to take advantage of the said endowment by way of their preparation for entrance into the Naval Academy at Annapolis, Maryland, or such as may fit them to' become mates or masters in the merchant marine service of the United States, such preparation to be confined in the case of each young man so embracing the advantages of the said endowment to one year, and to include principally the studies following, — that is to say, arithmetic, geometry, trigonometry, and astronomy, with the use of astronomical instruments, the construction of.charts, and the application of this knowledge to hydrographical survey by latitude and longitude, and if possible such study as will give to such young men a knowledge of scientific voyages of discovery, and other matters relating to war and commerce on the high seas; and it is further my desire that this endowment shall, if possible, embrace in its benefits, such apprentices as, having filled their time in the great steam manufactory establishments of the country, may apply for appointment from civil life in the steam engineer department of the United States Navy, to such I would like to have a year’s, education afforded under such regulations as the president and faculty of the university may think proper; and should it at ■any time for any reason be impossible to carry into effect tbe trusts, provisions, and conditions having relation to and herein imposed upon this bequest by me made for the creation of the -endowment described on the part of the said Columbian University, or should it be made manifest at any time that the said trust is not being administered in accordance with my wishes and desires, and in conformity with the conditions specified, then, and in such case it is my will and desire that the said endowment shall be placed in other hands, and to that end, and upon the happening of the contingency mentioned, I do hereby .give, devise, and bequeath the said property to the Johns Hopkins University of Baltimore, in the State of Maryland, and its successors, to be taken and held by the said university or the officers thereof proper for that purpose, upon the trusts and for the purposes hereinbefore particularly set forth in the bequest of said property to the Columbian University, in such manner that the purposes of the said endowment as by me indicated may be fully carried into effect.”</p> <p>The bill then proceeds to charge:</p> <p>“VIII. That acting upon its supposed right under said devise, the said defendant, the Columbian University, some time in the year 1885, took possession of said premises and real ■estate upon the trust set forth in said will, and has had and retained absolute possession of the same ever since as it does now, having had the same rented to various tenants during said time.</p> <p>“IX. That said defendant, the Columbian University, issues •and has for more than sixteen years issued a catalogue, publishing its classes, the names of all its students, its instructors and ■officers, and the many and various schools of education it maintains; that this catalogue is widely circulated throughout the United States; that among other things it has from time to time, ■during the past sixteen years, advertised The Powell scholarships;’ that such advertisement was contained in the said catalogue for the scholastic years of 1900 and 1901, as will more particularly appear by reference to pages 94 and 95 of .said catalogue, which is herewith filed as Exhibit No. 3, and "which it is prayed may be taken and considered as a part hereof. That substantially the same advertisement ■ has been inserted in said catalogue issued from time to time for the past sixteen years; that, notwithstanding the said wide circulation ■of said advertisements, the said defendant, complainants are informed, believe, and therefore charge, has been wholly unable to execute said trust.</p> <p>“X. That the complainants are advised and therefore charge and allege that said devise is so indefinite and the trust intended to have been created thereunder so uncertain as to its objects and subjects that it was impossible of execution by said defendant, the- Columbian University, or by the said defendant, the Johns Hopkins University, has in no wise been executed by either of them in any respect whatsoever, and that it is now and ever will be impossible of execution by either of them.</p> <p>“XI. That the complainants are advised and therefore charge and allege that by reason of the indefiniteness of the purposes of said intended trust, and the hopeless uncertainty of the possible beneficiaries, ‘who may desire to take advantage of said endowment,’ the said devise and the trust sought to have been created thereunder is wholly void and of none effect.</p> <p>“XII. That complainants are advised and therefore charge that the defendants are without authority to carry said trust into execution.”</p> <p>The prayers, are that the paragraph of the will before set forth be decreed to be void; that the trust be declared void, and the title to the premises be declared to be in the complainants; that the Columbian University be required to render a full account of the rents and profits of the said premises, and to pay •over the sum ascertained to be due; that all necessary orders and references may be made, and for such other and further relief as the nature of the case may require.</p>

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, sustaining a demurrer to an amended declaration in an action against the District of Columbia to recover for services alleged to have been performed, the plaintiff having elected not to amend his declaration.

Hearing on an appeal by the complainants from a decree of the Supreme Court of the District of Columbia dismissing a bill by creditors of an insolvent corporation to enforce against numerous defendants alleged unpaid subscriptions to the capital stock of the corporation.

<p>Tbespass; Nuisance; Statute of Limitations.</p> <p>Where, in an action of trespass, it appears that there were three distinct acts of trespass by the defendant, resulting from blasting operations conducted in the proximity of plaintiff’s dwelling house, and resulting in injury to his house on two occasions, and an injury to his wife on the other occasion, and that two of such acts of trespass are barred by the statute of limitations, including that which resulted in his wife’s injury, the case will not be regarded as one of a continuing nuisance, but one of three distinct trespasses upon his property; and the plaintiff will be entitled only to damages for the injuries resulting from the act of trespass not barred by the statute; and testimony as to his wife’s injuries will not be admitted.</p>

<p>Hearing on an appeal by tbe complainant from a decree of tbe Supreme Court of the District of Columbia sustaining a demurrer to and dismissing a bill in equity to enjoin the revocation by the Postmaster General and Third Assistant Postmaster General of a certificate admitting a publication of the complainant to the mails as second-class matter.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This is an appeal from a decree in equity of the supreme court of the District of Columbia dismissing the bill of complaint filed by the appellant seeking to enjoin the appellees, the Postmaster General and the Third Assistant Postmaster General, the defendants below, from revoking or canceling an existing certificate of entry entitling the appellant to mail at the pound rate as second-class matter its publication, “The Student at Home.” The case was heard on bill and answer.</p> <p>The appellant, the Columbian Correspondence College, is an educational organization incorporated under the general incorporation act of the State of West Virginia, and has its principal office or place of business in the city of Washington. It is a joint-stock company having a capital of $60,000, divided into shares of $10 each, and with the privilege of increasing its capital stock to the sum of $100,000. Its method of instruction is what has become known as the correspondence method, which its name sufficiently defines. It has several thousand students enrolled as members of its various classes in law, normal, civil service, bookkeeping and stenography, and literature and journalism. The publication is sent to such persons as have made written application to the corporation for its catalogues and for information regarding the scope and work of the corporation, and to such persons as, having made such formal application, have not, on receipt of the first number of the paper mailed to them, enrolled themselves as students. The publication was originally admitted to the mails at the rate fixed by law for second-class matter July 31, 1899, and on the occasion of its change from a semi-monthly to a monthly publication it was again submitted for admission as second-class matter July 18, 1900, and duly admitted. The bill alleges, and the answer does not deny, that it is the intention of the Postmaster General to revoke or cancel the certificate of entry upon the ground that the appellant is not a “regularly incorporated institution of learning” within the meaning of the act of July 16, 1894.</p>

Hearing on an appeal by tbe defendant from a judgment of the Supreme Court of the District of Columbia entered upon, the verdict of a jury in an action for malicious prosecution. The Court in the opinion stated the case as follows: This appeal is from a judgment entered upon the verdict of a jury in favor of the appellee, John C. Johnson, the plaintiff' below, for the sum of $2,500, with interest thereon from June 14, 1904, and for costs.

Hearing on an appeal by tbe complainants from a decree of tbe Supreme Court of the District of Columbia dismissing a bill in equity for an injunction. The Court in the opinion stated the case as follows: This is an appeal from a decree sustaining a demurrer to and dismissing a bill for injunction.

<p>In error to the Police Court of the District of Columbia.</p> <p>The facts are sufficiently stated in the opinion of the Court.</p>

<p>Hearing on separate appeals by the defendants from a decree of the Supreme Court of the District of Columbia in a suit to enjoin a landlord and tenant proceeding and to have a tax deed declared null and void.</p> <p>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 tbe verdict of a jury in favor of tbe claimant in a proceeding by attachment and garnishment. The Court in the opinion stated the case as follows: This is an appeal from a judgment rendered in favor of the claimant in a proceeding by attachment and garnishment.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia on the verdict of a jury in favor of the claimant in a proceeding by attachment and garnishment.

<p>Equity Pleading; Statutes; Statutory Construction; Indians; Tribal Property; Injunction.</p> <p>1. While a demurrer to a bill in equity admits all facts set forth in the bill which are well and sufficiently pleaded, allegations of the bill as to the construction of statutes or documentary exhibits to the bill are not admitted by the demurrer to be correctly alleged, but are matter of law for the determination of the court.</p> <p>2. Where an act of Congress, is attacked as unconstitutional, and it is sought to enjoin the executive officers of the government from administering it, every possible presumption is in favor of the validity of the statute, and this continues until the contrary is shown beyond a rational doubt.</p> <p>3. The Indians are wards of the nation, and the authority to deal with lands set aside for them is vested in Congress. In whatever way such lands may be dealt with by Congress, so long, certainly, as the proceeds derived from them are set aside for the Indian beneficiaries, it is not open for the courts to interfere with congressional action, even though it may be thought that some other disposition of the lands would be more beneficial.</p> <p>4. A decree sustaining a demurrer to and dismissing a bill in equity by the chief of a tribe of Indians against the Secretary of the Interior to declare unconstitutional and void, and to enjoin the Secretary from carrying out, certain provisions of the act of Congress of June 27, 1902, creating a forestry reserve and restricting the cutting of timber upon such reserve in alleged contravention of the rights of the Indians' under the act of Congress of January 14, 1889, — affirmed on the ground that the former act only dealt with the method of treating the lands, which, together with all avails therefrom, remain the property of the Indians, and that the power of Congress to deal with the tribal property was political and administrative.</p>

<p>Hearing oil an appeal by tbe defendants from a decree of the Supreme Court of the District of Columbia in a suit in equity to cancel a bond and deed of trust given to a building association to secure a loan, and for a personal decree against the defendants.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This is a controversy between a so-called building association and one known as a “borrowing stockholder.”</p> <p>A number of persons, whose names are not given, combined in this District to form a voluntary unincorporated association known and designated as the Eastern Building & Loan Association, with the nine appellants, James W. Whelpley and others, first above mentioned, as its directors, the purpose of which was, according to the usual programme of building associations, and according to the specification in the first article of its bylaws, “to receive from and to loan to stockholders its funds, subject to the by-laws.”</p> <p>On March 13, 1893, one George W. Montgomery, an employee in the office of the appellee Boss, and conceded to have been acting as an agent for the latter in the transaction, borrowed from the association the sum of $2,200, having for the purpose become a stockholder to the extent of eleven shares of stock, for which he subscribed, and which were issued to him at the time. It would appear that the money was put up at auction, and that Montgomery became the highest bidder therefor by an offer to.pay a premium of 70 cents on each sum of $100, or on each share of stock, which practically amounted to the same thing. For the repayment of the amount he executed and delivered to the association a bond under seal, conditioned for the payment in each month of $2.70 on each share of stock held by him, and all fines and forfeitures that might be incurred by him under the “constitution” of the association, until “full settlement should be made, as provided in such constitution ;” and to secure this bond he gave a deed of trust by way of mortgage on real estate standing in his name, although really owned by the appellee Boss, and which real estate adjoined the city of Washington. The payment of $2.70 to be made monthly is stated to be $1 for principal, $1 for interest, and 7 0 cents as premium, and the whole payment to be made by the appellee on his eleven shares of stock was $29.70, which he continued to pay from the first Wednesday of March, 1893, to and including the first Wednesday of July, 1903, a period of 125 months, during which the whole amount paid by him would seem to have amounted to the sum of $3,712.50.</p> <p>What is called the “constitution” of the association would seem to have been no more than a series of by-laws, and which in fact are designated as by-laws, of which thirty-six are enumerated in the record. These provide for the mode of operation of the association, which is not too clearly set forth; for very much is left to inference, possibly because the mode of operation of such'association was generally well known. So far as we are informed by the record the principal features, so far as they concern the present case, "were these:</p> <p>The members of the association were designated as stockholders, and it would seem that anyone could at anytime become a stockholder, either for the purpose of borrowing money from it, or for the purpose of investing his money at a profit; and it does not appear that there was any limitation upon the amount of stock which one might acquire, further than the amount for which he desired to pay, if he was an investor, or than the amount which he desired to borrow, if he proposed to become a borrower. The theory appears to have been that the so-called stock, when subscribed for, — for no stock in the ordinary sense of the term seems to have been ever issued, — repre-'' sented the measure of the payments which the stockholders desired to make for their investment; that, if they desired merely to invest, they paid into the association at the rate of $1 a month for each share, and no other payment was required of them, except for fines and penalties, if any they should incur, and that they were required to pay only until by such payments and by the profits of the association from loans and from fines and penalties the stock should become of the full value of $200 a share, when the money was to be divided and the association dissolved. Or, rather, the organization was planned to be of indefinite duration by the issue, if we may so call it, of successive series of stock, of which’ each series constituted an organization in itself, independent of every other series, although the same persons might hold stock in the different series or in all the series. Each series was to be closed and dissolved when the stock in it became of the full value of $200 a share, and the limit of stock in each series was the amount that should be subscribed for within six months.</p> <p>The association seems to have been organized in the year 1889, and in the year 1903, when these proceedings were instituted, there had been twenty-six series of stock issued. Of these Boss, through his agent Montgomery, was in the 9th, and at the time of the institution of the suit Montgomery was the only stockholder and his stock the only stock outstanding in that series. All the other stockholders had been settled with. At least, the answer of the defendants avers that all the “nonborrowing” stockholders in that series, as well as in several other series, had “been paid off in full.”</p> <p>Section 17 of the by-laws provided that each stockholder should pay into the association $1 each month for each share of stock held by him during the continuance of the series to which his stock belonged. And, as we have stated, this was all the payment that was required of investing or nonborrowing stockholders, other than possible fines and penalties.</p> <p>Section 30 provided that stockholders might withdraw at any time, after giving one month’s notice, and, if there was money in the treasury available for the purpose, should receive what is called the withdrawal value of their stock, which was the aggregate amount of the periodical payments made by them, and 60 per cent of the profit on each share of stock in the series, as reported in the last previous semiannual statement.</p> <p>Section 33 provided that when every share of stock in a series should have reached the full value of $200, or whenever loans to the full value of every share of stock should have been made, each stockholder should receive the sum of $200 in money for each share of stock held by him; or, in case a loan should have been granted to him, the bond and mortgage should be satisfied or released, and the series should be dissolved.</p> <p>Three sections provided specifically in regard to loans. They were sections 19, 20, and 26.</p> <p>Section 19 provided that, when there was more than $200 in the treasury not subject to withdrawal, the board of directors should offer it at public auction to the highest bidder; who either was then or should thereupon become a stockholder in order to be entitled to receive the same, and who should have subscribed for one share of stock for each sum of $200 required.</p> <p>Section 20 provided that the borrower, in addtion to the sum of $1 a month required to be paid by all stockholders on each share of stock, should pay, also, 6 per cent per annum interest on the amount of the loan, being $1 a month on each share of stock or sum of $200, and also the rate of premium on each share per month for priority of loan.</p> <p>Section 26 provided that borrowing stockholders might repay their loans, and either continue their stock in the association, or receive the withdrawal value thereof if they desired to withdraw it, in which event it should revert to the association.</p> <p>Under these circumstances the appellee Boss on October 21, 1903, filed his bill in equity in the supreme court of the District against the board of directors of the association, Montgomery, and the trustees under the deed of trust given to secure the loan, and in it, after stating the loan and the execution of the bond and deed of trust, he alleged that, by a just accounting, he had overpaid his indebtedness on the loan by the sum of $867.86; that the transaction was usurious; that Montgomery acted in it as his (Boss’s) agent; that the property belonged to the complainant and Montgomery had no beneficial interest in it; that he (the complainant) had demanded from the association a release of the deed of trust, which was refused unless a further sum, claimed to be due under the loan, was paid; and that the association threatened to order a sale of the property for failure to pay the further dues demanded. And he prayed for a repayment of the amount claimed by him to have been overpaid, for a cancelation of the bond, and a release of the deed of trust.</p> <p>The board of directors of the association and the two trustees under the deed of trust joined in one answer, in which they admitted the transaction between Montgomery and the association, but averred that it was not a loan, but an advance upon his stock; and that payments for two or three years more would be required to make his stock equal to $200 a share, and to entitle him to a release of the deed of trust. In the answer there is also this averment, which is deemed to be important, and which therefore we transcribe in full:</p> <p>“These defendants say that, while the word loan’ is used in the by-laws, the transaction hereinbefore referred to was really an advance on the said several shares of stock to the full value thereof, and the said association was organized and the said transaction had on the faith of the long-settled law in this District, as determined by the highest courts thereof, that such transactions were fully legitimate and authorized by law. Said association consists of and has always consisted of, from time to time, a large and shifting number of stockholders or members. It has now reached its 26th series, and the first sis series and the 8th, 10th, 11th, and 12th series have been paid off and settled in full, and all the nonborrowing stockholders in the 7th, 9th, and 13th to 19th series, inclusive, have been paid off in full; and all this while the said Montgomery was a member; and the amount received from him as interest and premium went into and was computed as part of the profits and value of the shares of stock in each of said series. Those series were settled by reason of the accumulation of funds for which no bids were made, and which the association was therefore unable to loan or advance to stockholders, and the said Montgomery and the plaintiff were well aware of this condition of affairs and of these retirements of stock so made, so that they are es-topped to claim any refund for any overpayment, whatever may be their rights as to a refusal to make further payments.”</p> <p>Montgomery answered, substantially admitting all the allegations of the complainant’s bill, and consequently his own agency for Ross in the transaction and Ross’s ownership of the property.</p> <p>Instead of testimony a stipulation was entered into between the parties and filed in the cause, whereby it was agreed that certain facts should be taken as proved, and that the cause should be heard on the bill and answers and this stipulation so far as it modified the pleadings. The facts stated in the stipulation, which included as an exhibit annexed to it a copy of the constitution or by-laws of the association, were substantially those which have heretofore been mentioned. They included also the statement that neither the complainant nor Montgomery had any other connection with the association, or held any stock therein, other than the transaction which has been set forth. Included in the stipulation also was the fact that semiannual statements had always been issued showing the value of the stock in the 9th series, and that in the statement of July 31, 1901, the value was shown to he $129.33 for each share.</p> <p>The court rendered a decree, whereby the complainant was adjudged to recover the sum of $867.86 from the nine defendants, who constituted the board of directors; and it was ordered that the stock issued to Montgomery and the bond given by him should be canceled, and that the deed of trust should be released by the trustees. From this decree all the defendants, except Montgomery, have appealed.</p>

Hearing on an appeal by the complainant from a decree of the Supreme Court of tbe District of Columbia, sustaining a demurrer to and dismissing a bill in equity to enjoin the payment of money appropriated by acts of Congress.

Hearing oh an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia in an action of ejectment in wbicb a jury trial bad been waived.

<p>Municipal Corporations; Sidewalks; Parking; Negligence.</p> <p>1. The sidewalks of the city of Washington, which are wholly subject to the control of the municipal authorities, extend from the curb line bounding the carriageway of the street to the building line of the houses; and the fact that a portion of these sidewalks is withdrawn from public travel and set apart as parking does not change or diminish in any manner the control of the municipal authorities over them.</p> <p>2. The District of Columbia as a municipality is liable for the condition of a water plug in a walk leading from the sidewalk through a parking to the front door of a dwelling house; and in a suit against the District by a woman injured by catching her foot against such a plug, which projected several inches above the walk, it is error for the trial court to direct a verdict for the defendant, in the absence of testimony showing negligence on her part.</p>

<p>Patents; Interference; Divisional Application; Reduction to Practice.</p> <p>1. Where, in an interference case, it appeared that the senior party filed his application May 28, 1903, as a division of an application filed by him October 28, 1902, and he took no testimony, he was restricted to the latter date; and where the junior party filed his application August 10, 1903, it was held the burden was on him to prove priority of invention by a preponderance of the evidence.</p> <p>2. Where the testimony submitted in an interference case is not only lacking in form, but is wanting in substance, and, though the record may give the impression that essential facts may have been provable, they were not brought out, the case must be decided on the proofs adduced, as the court is not authorized ter supply the missing links in the evidence and base its decision on facts only thought to exist, but not disclosed. Under such circumstances the party whose testimony is deficient must be left to any other remedy the law may give him in another forum.</p> <p>3. Where, in an interference ease, exhibits are offered in evidence on which to predicate a reduction to practice, and they are lacking in one or more elements of the issue, the necessary elements in them cannot be supplied by this court unless warrant for such finding is found in the record.</p> <p>4. Evidence of reduction to practice must embrace all the elements of the issue, leaving nothing to inference merely. (Following Blackford v. Wilder, 21 App. D. C. 1.)</p> <p>5. Although in a proper case the Commissioner of Patents may take judicial notice of the records of his office, an application filed in February, 1902, for a patent, by one of the parties to a subsequent interference involving another invention, cannot warrant a finding in such interference that what was disclosed in such application in the preceding September was then in the possession of the applicant; especially when the application was not offered in evidence in any way. (Distinguishing Cain v. Park, 14 App. D. G. 42.)</p>

Hearing on an appeal by tbe defendants from a decree of the Supreme Court of the District of Columbia in a suit in equity to determine the respective rights of the parties claiming to be the duly elected officers of the Knights of Labor, for, an injunction, etc. The Court in the opinion stated the ease as follows: This is a suit in equity begun by Simon Burns and five associates, claiming to be the general officers of the Knights of Labor, a corporation organized under an…

<p>Highways; Sidewalks; Municipal Regulations; Snow and Ice, Removal of, from Sidewalks.</p> <p>1. The police regulation promulgated by the commissioners of this District February 8, 1905, requiring the removal by individual citizens of snow and ice from the sidewalks of the city of Washington, within the fire limits, and providing a penalty for failing to do so, is null and void, not having been authorized by Congress.</p> <p>2. Under the act of Congress of January 26, 1887, 24 Stat. at L. 368, chap. 48, and the joint resolution of Congress of February 26, 1892, 27 Stat. at L. 394, the commissioners of the District of Columbia have the power to make police regulations only, and not to impose duties upon citizens, such as the removing of snow and ice from'the sidewalks.</p> <p>3. Congress having reserved to itself, not only the power to legislate generally for the District of Columbia, but also the power to enact municipal ordinances for the District, such as are within the ordinary scope of the authority of incorporated municipalities, and having delegated to the commissioners of the District, who are not the municipality, but only its executive agents, the power to make police regulations, such as are usually and commonly known by that designation, it is not to be inferred from the fact that various municipalities have made valid regulations providing for the removal by individual citizens of snow and ice from their sidewalks, that a similar power exists in the commissioners of the District of Columbia to make such regulations.</p> <p>4. The procurement by the commissioners of this District (which may be inferred from the well-known usage of the committees of Congress in that regard) of legislation by Congress providing for the removal by citizens of snow and ice from the sidewalks of the city of Washington; and legislation by Congress which has been judicially declared void upon the same subject, — coupled with the fact that no express authority has been given the commissioners to make such regulation, is sufficient to charge the commissioners with knowledge of their incapacity to enact such legislation under the guise of police regulation, and to show that Congress reserved the subject for legislation by itself.</p> <p>5. The duty is upon the District of Columbia itself to cause the removal of snow and ice from the sidewalks of the city of Washington, as it is its duty to remove any other obstructions; and it is not competent for the commissioners by police regulation to remove that burden from themselves as agents of the municipality, and impose it upon individual citizens.</p>

<p>Trial; Street Railways; Negligence; Contributory Negligence; Charge to the Jury.</p> <p>1. An objection by the defendant, a railway company, in an action at law, that the trial court directed a verdict for its codefendant, a municipality, leaving the railway company the sole defendant, even if available under any circumstances, cannot properly be raised on an assignment of error that the trial court refused a prayer instructing the jury to find for the defendant, where the record does not show that the question was raised in any way before the trial court. (Following Washington Gaslight Co. v. Lansden, 9 App. D. C. 508, and Norman v. United States, 20 App. D. C. 494.)</p> <p>2. Where a street car passenger.is injured by reason of the protrusion of his arm out of the side of the car, the question of whether he was guilty of contributory negligence is not one of law for the court, but of fact for the jury.</p> <p>3. It is gross negligence for a street railway company to use cars which in passing each other are not more than 3 inches apart, and doubly negligent for it to run such ears with the panels taken out, and with the running rail placed where the passengers would naturally rest their arms; and, at the least, it is the duty of the company under such circumstances to see that one of the cars comes to a full stop and the other passes it very slowly.</p> <p>4. Where a passenger in a street railway car, whose arm rested on the running rail and protruded beyond the side of the car, was struck by a passing car and killed, it was held that the trial court properly refused an instruction asked by the railway company, that if the deceased changed his position after the front of the car had passed him without striking him, and that by reason of such change of position he was struck by the car, the verdict should be for the defendant, — especially where the testimony showed that before the deceased was struck there was much shouting and ringing of gongs, sufficient to account for a natural shifting by him of his position.</p> <p>5. And an instruction asked by the defendant in such a ease was also properly refused, when to the effect that if the jury found that the deceased had been in the habit of passing over the defendant’s road at the place of the accident, that would justify an inference that he had knowledge of the space between the cars, — especially where the evidence showed that, although cars of a similar construction had been in use for from six to twelve months, there was nothing to show how often the deceased had been a passenger, or from which it could be inferred that he had knowledge of the space between the ears.</p> <p>6. A charge to the jury should be taken as a whole, and, when fair, an appellate court will not sustain an objection based upon a sentence in it which, taken by itself, may not express in happiest terms a proposition which is correct.</p> <p>7. Where a passenger in an open street railway car was killed by a passing car, his arm resting at the time on the running rail and projecting beyond the side of the ear, and it appeared that the space between the passing ears was about 3 inches wide, it was held that a statement in the charge of the trial court was not erroneous which said: “The whole question seems to come to the jury to determine whether or not, under the form of the car that was used, here, with the width of the track that was used here, with the style of open ear built as it was, and with this rail in the position it was, there was anything this company ought to have done as a prudent and reasonable person to prevent the happening of an accident of this kind.”</p> <p>8. And it was not error for the trial court, in such a case, to say in its charge to the jury that “although the plaintiff’s intestate may have been clearly at fault and negligent in putting his arm out, or his head, or whatever it was, yet if the defendant did not take such precautions as a prudent and reasonable person ought to take to prevent such an accident, I think the defendant would be liable,” — 'Where the court had already granted a prayer for the defendant which told the jury that if the plaintiff’s intestate was guilty of contributory negligence the plaintiff could not recover, although the defendant was found guilty of negligence.</p> <p>9. Where, in such a case, the testimony shows that the motorman of the approaching car which struck the deceased saw the deceased and warned him to take his arm off the rail, it was not erroneous for the trial court to charge the jury in effect that, even if the deceased was guilty of negligence, if the defendant’s servants saw him in a position of apparent danger, it was their duty notwithstanding his negligence to do all they could to prevent the accident, and if they tailed to do so the defendant was liable.</p>

<p>Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia upon tbe verdict of a jury in an action by an infant to recover damages for personal injuries.</p> <p>The Court in tbe opinion stated tbe case as follows:</p> <p>This is an appeal from a judgment in an action for personal injuries.</p> <p>Plaintiff, Charles Erickson Severe, then a child of seven years, lived with his father, William B. Severe, near tbe line of tbe double track electric railway, between Biverdale and Washington, operated by defendant as receiver of tbe City & Suburban Bailway Company.</p> <p>Plaintiff’s father and mother bad gone on a short visit to Cape May, and were expected to reach home by way of tbe electric railway from Washington, on Sunday, August 31, 1902, about 2 o’clock in tbe afternoon. Erickson Severe, tbe plaintiff, bad two brothers, Edward and Baymond, of tbe age of nine and five years respectively. About 1:30 o’clock tbe three boys went to the customary stopping place of tbe cars, when passengers desired to get on or off, which was indicated by signs upon poles erected near tbe tracks.</p> <p>There was no street or public highway crossed by tbe railway at tbe point, but, under agreement with tbe donor of tbe right of way, the defendant had constructed and maintained a board crossing on both tracks, which in the evidence was spoken of as a platform. Persons often crossed on foot to reach the fields and waters on the other side. The evidence tended to show that the boys went there to meet their parents upon their expected arrival.</p> <p>The eldest boy, Edward, testified that they stayed about an hour together waiting near the track, sitting for a time near a small power house situated near the railway. That he left his brothers standing on the platform and went to the house for a drink of water, intending to return and wait for his parents. On his return Raymond met him at the gate, saying Erickson’s foot was caught at the track. That he ran down and saw his brother had his foot caught between the rail and the boards of the crossing; saw a car coming down the track at the same time from 50 to 60 feet away. That he was on the boards and waved his hat and called to the motorman to stop. That the ear did not stop until after it struck his brother.</p> <p>Plaintiff corroborated his brother’s evidence in regard to their coming to the tracks, and his brother’s return to the house for water. He said that, after Edward left, Raymond’s foot got caught between the rail and board. That he did not notice what Raymond had been doing just before this. That he went to Raymond and loosed his foot, and just as he was going back his own foot caught as he was crossing over. Witness could not pull his foot out, and Raymond went to tell Edward. Raymond and Edward met at the gate and came running back. His back was to the car when he heard it coming. Tie turned his head and saw it coming. He waved his hand. Edward was waving his hat up and down, and calling to the motorman. Raymond was behind Edward, and waving also. The car was close on him when he saw it first. He saw the motorman when he tried to stop, but he was struck and dragged 2 or 3 yards. His left foot was the one caught. Other evidence showed that the plaintiff’s leg was badly mangled; that he was carried in the car to Washington, and that his leg was amputated at the hospital.</p> <p>A passenger on the car testified that the car stopped with a sudden jolt, and that at the time two little boys were on the bank jumping up and down and hallooing. Another passenger testified for defendant, that his attention was attracted by the repeated ringing of the bell, and looking out he saw a boy on one of the tracks waving his hand. Did not see the plaintiff. The next thing that occurred was a jolt as the car was brought to a stop. The motorman was putting on the brakes as hard as he could. Could not tell how far the car went from tne first time that he saw the boy mentioned.</p> <p>The motorman, testifying for defendant, said that he saw the boy on the track about 300 or 400 feet away. That three boys were on the track, running and jumping backwards and forwards across the tracks. That about 150 feet away he sounded his gong. That two of the boys got back on the bank and one stayed on the track. That he rang the gong repeatedly. That he was about 35 or 40 feet away when he saw that the boy was not going to get off the track. That he applied the brakes with all his power and reversed the power, stopping the car as quickly as he could. That when he stopped and got off he found the boy about the center of the car. That he had often .seen the same boy and others standing on the track, and that as the car got almost to him he would jump off, clap his hands, and laugh. That he did not see either of the two boys on the bank wave their hands. Plaintiff did not wave to him, and had his face towards him when he struck. That he saw his foot was hung when he was about 30 or 35 feet from him. That the car was between 36 and 38 feet in length, and was running about 8 or 9 miles per hour. Another motorman testified that he had frequently observed boys, plaintiff among them, playing on the crossing and jumping off the tracks ahead of the cars. A witness living near by testified to the same effect. There was testimony tending to show that the boards of the crossing fitted closely to the outside rail. On the inside there was a space of from 2 5/8 inches to 2 11/16 inches between the edge of the board and the tip of the rail, in which the flange of the wheel ran. The rail was the ordinary T rail. The board was square-edged, and under the top of the rail the space widened. The shoe which the plaintiff wore at the time was produced, and the heel showed that it had been caught in this space.</p> <p>Defendant introduced several witnesses, among them the contractor who laid the crossing and others familiar with such construction, whose evidence tended to show that it was customary upon railways generally to leave a space of from 2% to 2l/o inches for the entry and play of the flange of the wheel on the. inside of each rail. One of these, a general contractor for such, work, said that on steam railways the width is usually from 2^ to 2% inches, because the wheels have a little more tread; that the space is left because if a stone should get in the space the flange would press it down, preventing derailment; that the stone ballast will work out and leave the space deeper, and that work has to be kept up in repair, and sometimes the board must, be taken up to fill the low place. If not attended to the road will work out of surface. That in all the crossings on defendant’s road the spaces were made from 2 inches to 2% inches in width. Another of these, having testified that the usual space-left on railways was from 2 to 2 % inches, said that the flange of the rail level was % of an inch thick and tapered to practically nothing. He further said that in the city streets a special guard, and grooved rail is laid.</p> <p>Plaintiff, in rebuttal, offered evidence tending to show that-at two other crossings on defendant’s line the space left between the board and the rail was much narrower than the one in question, there being just width enough for the wheel flange, and no more. Also that there was no filling of earth or gravel between the board and rail at the time, and that the hoard was 2 inches thick, and that subsequently the defendant had filled it. in, but the filling would wash out from time to time.</p> <p>The plaintiff and his elder brother denied that they had been in the'habit of playing on the tracks and jumping off, as claimed by defendant’s witnesses. The younger boy, Raymond, was offered as a witness, but the court pronounced him incompetent after examining him for the purpose.</p> <p>The jury returned a verdict for the plaintiff for $15,000. The court also required them to return answers to the following ■special issues:</p> <p>“1. Was the defendant guilty of negligence in the improper ■construction or maintenance of the crossing?</p> <p>“2. Was the defendant guilty of negligence in the improper management of the car?</p> <p>“3. Did the motorman do all in his power to stop the car as •soon as he saw the plaintiff’s foot was caught in the space between the rail and plank?” They answered “Yes” to the first two of these, and disagreed as to the third. “Thereupon,” as recited in the record, “counsel for the plaintiff consent that the jury may answer said third interrogative in the affirmative, but ■said jury was discharged from further considering said interrogatory.”</p>

Hearing oh an appeal by tbe defendants from a decree of tbe Supreme Court of tbe District of Columbia sustaining a bill of review and vacating in part a former decree.

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

<p>Patents; Eejection oe Claims; New Matter; Anticipation; Duplication oe Parts.</p> <p>1. A claim to a printing-press is unpatentable, where it amounts to a mere duplication of what is shown in the prior art and involves the production of no new result save, perhaps, greater convenience.</p> <p>2. While amendment of claims and the introduction of new claims are freely allowed, provided they are disclosed and there is proper basis for them in the original specifications or drawings, yet no such amendment or addition will be allowed when it involves new matter not so disclosed in the original application, as intervening rights of other parties may have accrued which may be affected by it (following Bechman v. Wood, 15 App. D. C. 484) ; but an applicant advancing such claims is not precluded from presenting them in a new and distinct application, if he so desires.</p> <p>3. Qucere, — whether this court has the power to review the action of the Patent Office in refusing to allow certain new claims of an applicant, on the ground that they contain new matter not disclosed by the original application, or whether such action is not rather to be regarded as the exercise of the power to allow or refuse an amendment, which is not the subject of review by this court.</p> <p>4. The claims of an applicant copied from a patent granted to another upon a printing-press were held to have no proper foundation in the application as filed, and to constitute new matter injected by amendment.</p> <p>5. Where a claim inserted by amendment includes new matter not originally disclosed, it was held that if the change from the original was an obvious one which would occur to anyone, it was not patentable, and if it was not obvious it involved new matter.</p>

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

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

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

<p>Patents ; Interference.</p> <p>Thibodeau v. Hildreth, ante, 320, applied and followed.</p>

<p>Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia upon a verdict directed by the Court in an action to recover compensation for services.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This is a suit at common law instituted in the supreme court of the District of Columbia by the appellant, William H. Boogher, as plaintiff to recover compensation for “special services” alleged to have been rendered by the plaintiff to the defendants, as “genealogist, examiner, and conveyancer, rendered in looking up, investigating, identifying, and locating the real estate belonging to the estate of Abraham Young, briefing the titles thereof, and in tracing, locating, and establishing the heirs of said Ahraham Young, ascertaining their names, residences, degree of relationship, their respective interests, rights, etc., in and to said estate, and in the procuring of the necessary information to prepare the same, and in the preparation of deeds and contracts between the said heirs and the said trustees or defendants, or those preceding them, of great value to and made use of by said defendants; said services being rendered from, to wit, November 1, 1888, to 1892,— $2,500”- — as stated in the particulars of demand annexed to the plaintiff’s declaration, which itself is in the common counts.</p> <p>The same subject-matter of controversy was before us on a former occasion, in an equity suit instituted in the supremo court of the District by the appellant here, as complainant, against the appellees here and one other person, John L. Weaver, as defendant, to charge a certain trust fund for the payment of these same services. Boogher v. Roach, 12 App. D. C. 477. There the bill of complaint was dismissed by the court below, and this court affirmed the decree of dismissal. In the opinion then rendered by this court it was said: “Whilst the acceptance of these services might have entitled him [Boogher] to an action of assumpsit against Roach, and even against Denver and Walter, we entirely agree with the learned justice who presided at the hearing, that his claim therefor cannot be made a charge against the trust estate or fund.”</p> <p>Acting upon what he assumed to be the intimation contained in this clause of the opinion, the appellant forthwith instituted the present suit at common law against Roach and Walter, General Denver having been dead for some time before. Roach and Walter severed in their pleadings; but their pleas, however, are substantially the same. They are the general issue, the statute of limitations, and former adjudication (in the equity suit mentioned), upon which the parties went to trial. At the trial it seems that the plaintiff alone offered testimony. That testimony, in the main, was substantially tbe same that was adduced in the equity suit, and which was set forth at some length in the opinion of this court in 12 App. D. C. 477. It need not therefore be here repeated. In addition to that, however, there was •some additional testimony as to the value of the plaintiffs services, which certainly involved very great labor and research, and must have been exceedingly useful to those who availed themselves of them.</p> <p>The bill of exceptions taken in the case thereupon showed the following proceedings:</p> <p>“The plaintiff to further maintain the issue joined upon his part offered to introduce in evidence before the jury the record in the chancery cause No. 21,842 in the name of Franklin H. Mackey et al. v. John H. Walter et al., to show that in the management of the estate the defendant Walter and those who are acting with him would receive 50 per cent of said estate, and so much of the record as showed that the said John II. Walter as surviving trustee of Gen. J. W. Denver and John II. TValter, trustees in the original deed of trust, realized upon a large part •of the real estate belonging to the heirs of said estates, and had received various amounts, which the complainant offered to prove by the record in said chancery cause and in other chancery causes relating to the subject-matter, and to which proffer the defendants objected on the ground that said testimony was irxelevant and immaterial, and also upon the ground of the former adjudication pleaded in this case; and the court refused to admit this testimony to be introduced before the jury; and the plaintiff by his counsel excepted to this action of the court.</p> <p>“Thereupon both the defendants moved the court to instruct the jury to find a verdict for the defendants upon the testimony introduced by the plaintiff, upon the ground that the statute of limitations applied thereto and constitutes a bar to the plaintiff’s right of action, which motion the court sustained, and thereupon the plaintiff excepted to this action of the court, and the jury thereupon rendered their verdict in favor of the defendant.”</p> <p>A motion for a new trial was made and overruled, and judgment was entered for the defendants; from which the plaintiff' has appealed.</p>

Hearing oil an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia upon a verdict directed by the Court in an action of debt originally brought, before a justice of the peace. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the complainant from a decree of the Supreme ‘Court of the District of Columbia sustaining a demurrer to and dismissing a bill for the specific performance of a contract for the sale of land. The Court in the opinion stated the case as follows: This is an appeal from a decree dismissing a bill for specific performance, upon a demurrer thereto.

<p>Hearing on an appeal by tbe complainant from a decree of the Supreme Court of the District of Columbia in a suit in equity for an accounting by an executor and for other purposes.</p> <p>Tbe Court in tbe opinion stated tbe case as follows:</p> <p>This is an appeal from a decree of tbe supreme court of tbe District of Columbia sitting in equity.</p> <p>One Robert McMurdy, a resident of tbe District, died herein on March 17, 1892, leaving a will, which was duly admitted to probate, whereby he devised property, both real and personal. Subsequently to the execution of the will, he made a codicil to it, which purported to change one clause or item of the will, and to substitute another disposition in the place of it. He left a widow surviving him, who was his wife by a second marriage, Helen Becker McMurdy; and two children by a former marriage, the appellant, Agnes E. Marfield, a widow, and the appellee, Robert H. McMurdy. The son, Robert II. McMurdy, and the widow, Helen Becker McMurdy, were constituted executors of the will; but the widow afterwards renounced the executorship, and Robert H. McMurdy alone qualified as executor, and yet remains in the execution of the trust.</p> <p>In the will, after some provision for two grandchildren, who were the children of a deceased son, and after the bequest of a legacy of $6,000 to his daughter, the appellant, the testator makes this provision, which comes up for construction in the present case:</p> <p>“Item 5. I give to my son, Robert IT. McMurdy, of Chicago, Illinois, out of the income of my estate, the sum of $600 annually during the time that he acts as executor of this will, in full compensation for his services as such executor.”</p> <p>Item 6 of the will contained a devise of his residence near Talcoma, in this District, together with some adjacent lots, to his wife for her natural life or until remarriage, with some provision for its management and a certain disposition of it after the termination of the estate so limited to the wife. It is this clause of the will that was revoked by the codicil, which substituted in the place of it the following:</p> <p>“Item 6. I devise & bequeath to my wife, Helen Becker Mc-Murdy, the undisturbed use of my present residence in Takoma, D. C., to maintain, together with the lot on which said residence now stands, at her own expense, including taxes & assessments on said real estate, so long as she shall remain unmarried and during her natural life, unless she remarries before the end thereof. This devise does not include any part of the adjoining lot, of which the south 7 feet were reserved in the former will. Said property may be sold by my executors at the request of my said wife, and the proceeds thereof (less $3,000) invested & the income therefrom paid to her annually during her natural life unless she remarries; in which case her interest in said property shall' cease.</p> <p>“As the mortgage of three thousand has been canceled by funds from the general estate, I direct, when the property is sold, that $3,000 of the purchase money shall be invested for the benefit of the heirs of my estate.</p> <p>“In case my property on 14 St. in the city is not sold before my death & in the opinion of my executors it is desirable; after using the interest on my Dayton property to pay all taxes, the balance, except $1,500, shall be distributed equally between my wife & my two children & the other $1,500 shall be invested as a part of the principal of my estate. This is to apply to all the Dayton notes as they fall due.”</p> <p>Item 8 of the will was as follows :</p> <p>“Item 8. After the payment of the necessary expenses of administration, care and expenses of property, taxes, executor’s salary, and other expenses connected with the execution of this will and its several provisions, the income of my estate, real and personal, I devise and bequeath to said Agnes Marfield and Robert H. McMurdy, my children aforesaid, their heirs and assigns, and to said Helen Becker McMurdy, my said wife, in equal parts, one third part thereof to each, to be paid annually.”</p> <p>Item 9 devised the remainder of the estate, after the death or remarriage of his wife, to his two children, Agnes Marfield and Robert H. McMurdy. Item 10 provided that the devise and bequest to his wife should be in lieu of dower; and item 11 provided that his executors should have full power to convey and exchange his estate and reinvest the proceeds; and it named his son, Robert II. McMurdy, and his wife, Helen Becker Mc-Murdy, as the executors of the will, without bond or liability to account in any manner. In the event of the death of Robert H. McMurdy before the testator, the daughter was appointed coexecutor with the wife.</p> <p>These are all the parts of the will and codicil that are deemed pertinent to the issues in the present case. It should be added, perhaps, that it would appear that the testator had legal assistance in drawing the will, but that the codicil was his Own unaided effort. It should also be added, as appears in the proceedings in the present case, that the testator owned some unimproved lots, known as the Columbian University lots, and mentioned in the codicil as the “property on Fourteenth street, in this city,” and which, it seems, was valued at one time at about $30,000 or $40,000; and that he had also owned some unimproved lots in Dayton, Ohio, which he had sold and upon which he had taken a mortgage and mortgage notes amounting to about $15,000. These are the “Dayton property” and “Dayton notes” referred to in the codicil. It appears that it was impossible for a long time to sell the Fourteenth street lots, and that 'they were finally sold for about $28,000, of which part was reserved on mortgage; and also that, on account of the insolvency of the purchaser of the Dayton lots, the executor found himself constrained to take back that property and to surrender "the purchasers’ notes to him.</p> <p>On May 6, 1901, the present proceedings were commenced by dhe appellant, Agnes E. Marfield, as complainant, in the supreme court of the District, by filing her bill in equity against Robert H. McMurdy, the widow, Helen Becker McMurdy, and John H. McMurdy, a legatee under the will, but who is not •concerned with the proceedings as they now stand. In this bill there were some’charges of misfeasance and malfeasance on the part of the executor Robert TI. McMurdy, which met with an ■emphatic denial from the latter, and all of which have been withdrawn or abandoned; and the prayer of the bill was for an ■accounting by the executor, for his removal as executor and "trustee, for the removal of Helen Becker McMurdy from the trust, and for the appointment of the Washington Loan & Trust Company in their place and stead, to sell all the property of the estate in the District of Columbia and to divide the proceeds between the appellant and the appellee “upon their giving to •the said Helen Becker McMurdy or to this court (the supreme court of the District) satisfactory assurances of the payment annually to said Helen Becker McMurdy during her natural life, or until she remarry, of a sqm equal to one third of the annual interest at a reasonable rate accruing upon the amount ■so paid to said complainant and defendant Bobert H. McMurdy from the proceeds of sale of said property.”</p> <p>There was no request for any construction of the will or codicil, and no suggestion that either of them needed construcdion.</p> <p>Helen Becker McMurdy did not answer the bill, and permitted it to go by default; and she subsequently renounced the "trust both of executrix and of trustee. She is not a party to this appeal.</p> <p>Bobert H. McMurdy answered vigorously, denied all malfeasance and misfeasance, and gave a full and elaborate account •of his trust.</p> <p>Thereupon, on January 25, 1902, a consent decree was rendered, wherein it was adjudged and decreed that all objections and exceptions to the action of Bobert H. McMurdy as trustee be overraled; that the Washington Loan & Trust Company be appointed cotrustee with him in the place of Helen Becker Mc-Murdy ; that, as soon as it could well be done without sacrifice, the trastees should sell the so-called Columbian University lots, •on Fourteenth street, and all the other property of the testator in the District of Columbia, under the approval of the court; and that they should hold the proceeds subject to the further order of the court. And there was this further order included in the decree: “It is further ordered that the question of compensation to the said Bobert H. McMurdy under the provisions ■of said will, and the rights of the legatees under the said will "to the proceeds of said real estate, are hereby reserved by the coiirt to be passed upon when there shall be funds arising from the sales aforesaid in the hands of the trustees.”</p> <p>There was then an accounting before the auditor by Bobert H. McMurdy, and his account was accepted and approved by all parties, and ratified by the court. It covered the period •down to January 25, 1902, and showed a balance in his hands at that date of $607.74, which he turned over to himself and his associate as the existing trustees. The order of ratification reserved to the complainant the right to contest his claim to compensation as executor and trustee.</p> <p>The next proceeding that appears in the present record is; the stipulation entered into on May 12, 1904, and filed in the cause on October 27, 1904, which was executed by Robert H. McMurdy in person, and by the solicitor for the complainant and the solicitor for the Washington Loan & Trust Company, and wherein it was agreed that the questions reserved by the decree of January 25, 1902, should now be submitted to the court for its determination upon the record and certain conceded facts. These facts were the following:</p> <p>1. That the Columbian University lots had been sold for $28,710, out of which, after payment of sundry expenses, there remained in the hands of the trustees between $1,000 and $1,500 in cash, and promissory notes amounting to $19,647.-47, drawing 5 per cent interest payable semiannually.</p> <p>2. That the annual charges upon the estate in the hands of the trustees, without reference to the compensation claimed by Robert H. McMurdy, are less than the amount of the income of the estate.</p> <p>3. That no compensation had been received by Robert H. McMurdy beyond the sum of $694.15 found- by the auditor’s report.</p> <p>And in the stipulation the questions reserved for determination by the court are specifically formulated in these terms:</p> <p>(1) Whether, under the provisions of said will, said Robert E. McMurdy is entitled to any, and, if any, what compensation over and above the sum of $694.15 already received by him, as shown by said auditor’s report, and from what fund or funds the same shall be payable.</p> <p>(2) Whether it is the duty of the trustees, or within their power, to divide the proceeds now in their hands of the sale of the University Park property in the District of Columbia, between the said Robert S. McMurdy and Agnes E. Marfield.</p> <p>Thereupon the court rendered the following decree: “Said questions haying now been presented to the court upon said stipulation and the papers therein referred to, and counsel for the respective parties having been heard, and said second question having been treated in argument as if it embraced Helen Becker McMurdy as one of the proposed distributees, which counsel for the complainant insist was the intention of the stipulation, and the court having duly considered the matter, it is this 8th day of November, 1904, adjudged, ordered, and decreed :</p> <p>“1. That the said Robert H. McMurdy is entitled to compensation under the provisions of the will of said Robert McMurdy, deceased, at the rate of $600 per annum, payable out of the income of said estate until the final distribution of the said estate, or until breach or determination of the trust reposed in him.</p> <p>“2. That there be paid to said Robert H. McMurdy out of any excess of income now or hereafter arising or existing over the annual charges upon said estate other than said compensation and arrearages, so much as may be necessary and so far as the same will extend to pay:</p> <p>“(a) All arrearages of said compensation now existing or hereafter arising.</p> <p>“(b) Said compensation at the rate of $600 per annum until the final distribution of the said estate, or until the breach or determination of his trust.</p> <p>“3. That, after the payment of such arrearages and annual compensation, the balance of the income, if any, from time to time arising, be disposed of according to the provisions of the will of said Robert McMurdy, deceased.</p> <p>“4. It is further adjudged, ordered, and decreed that it is not the duty of the executors or trustees of the will of Robert McMurdy, deceased, under any of the provisions of said will or of the codicil thereto, nor have the said executors or trustees any power or authority thereunder, to divide the proceeds, now in their hands, of the sale of the University Park property in the District of Columbia, between Robert H. McMurdy and Agnes R. Marfield, or to make any distribution whatever of the proceeds of said sale, or of any other part of the corpus of said estate now beiüg or hereafter coming into their hands, among the beneficiaries named in said will and codicil, until the death or remarriage of Helen Becker McMurdy, widow of said testator.</p> <p>“This decree is made without any prejudice to any questions which may hereafter arise touching the commissions of the Washington Loan & Trust Company as executor or trustee under said will.”</p> <p>From this decree the complainant has appealed to this court</p>

<p>Equity; Alimony; Costs.</p> <p>1. A court of equity has the power to award alimony pendente lite and counsel fees to a wife without passing upon the merits of the case, where she is without separate means and the husband is able to support her.</p> <p>2. An order in a suit by a wife for maintenance and support, granting her alimony penitente lite at the rate of $25 a month and a counsel fee of $50; and an order allowing her $75 counsel fee for defending an appeal from the former order, affirmed as not an abuse of the lower ' court’s discretion under the circumstances, the court below still having jurisdiction over the cause.</p>

Nearing on an appeal by tlie plaintiff from a judgment of the Supreme Court of the District of Columbia on a verdict directed by the Court for the claimant of property seized under a writ of execution. The Court in the opinion stated the case as follows: This is an appeal from a judgment of the supreme court of’ the District, in a suit which originated before a justice of the; peace, and it is a pertinent illustration of the inexpediency of the law which allows such appeals.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia upon a verdict directed by the court in an action originally brought before a justice of the peace. The Court in the opinion stated the case as follows: This is an appeal from a judgment in favor of the defendant-appellee, the Postal Telegraph & Cable Co. entered upon a verdict of the jury found by direction of the court.

<p>Agency; Municipal Corporations; Constructive Notice; Proximate Cause; Negligence.</p> <p>1. An act of Congress charging the commissioners of the District of Columbia with the duty of approving and supervising the construction of a street railway incorporated under the act, creates no liability upon the District of Columbia as a municipality, and the commissioners in discharging their duty under the statute will act as agents or representatives, not of the municipality, but of Congress. (Following McGraw v. District of Columbia, 3 App. D. C. 408, 25 L. R. A. 691.)</p> <p>2. In a doubtful case where negligence is charged against a municipality, a recovery ought not to he allowed, hut it is only where there is a plain and obvious neglect of duty on the part of the municipal agents that liability can arise. (Following District of Columbia v. Moulton, 15 App. D. C. 374.)</p> <p>3. Where a passenger on a street railway car of the Great Falls & Tennallytown Railway Company, whose elbow was struck by a passing ear was thereby thrown to the ground and killed, and an action was brought by his administratrix against the District of Columbia, in which it was charged that the District was liable on the ground that the commissioners of the District were charged by the acts of Congress of August 10, 1888, and March 24, 1890 incorporating and amending the charter of that company, with the duty of approving and supervising the construction of the company’s tracks, and the testimony showed that the accident resulted from the large size of the cars and the closeness of the tracks, — it was held that (1) the commissioners were guilty of no neglect of duty in permitting the use of the large cars, as the act conferred upon them no control thereover; and that (2) there being no proof of any previous accident by reason of the proximity of the tracks or the size of the cars, there was no constructive notice to them of any probable danger at the point where the accident occurred; and (3) that the proximate cause of the accident was not the closeness of the track or the size of the ears, as it could have been avoided had the railway company exercised ordinary care in the movement of its cars at that point; it being its duty to bring one of the cars to a full stop or to slow it down while the other passed.</p>

<p>Hearing on an appeal from a decision of tbe Commissioner of Patents rejecting an application for a patent on tbe ground that tbe invention was “on sale” for more than two years before tbe application was filed.</p> <p>The Court in tbe opinion stated tbe case as follows:</p> <p>Prom tbe refusal of tbe Commissioner of Patents to grant bim a patent for an improvement in refining-engines for paper-pulp the appellant, Melvin A. Mills, has taken this appeal. The refusal is based upon a finding that the invention was “on sale” for more than two years before the application was filed.</p> <p>The record discloses that the appellant filed this application April 23, 1901, and, at the same time, filed an affidavit in conformity with rule 94 of the rules of practice of the Patent Office, accompanied by a written request that the application be placed in interference with a patent issued November 27, 1900, to Charles E. Torrance, No. 662,746. The affidavit, and the oath to the application, purport tq have been executed March 23, 1901. In due time the interference was declared, proofs taken, and a hearing had before the Examiner of Interferences, who rendered a decision of priority in favor of this applicant. An appeal was thereupon taken by Torrance to the Examiners-in-Chief, who, without deciding the question of priority, directed the attention of the Commissioner of Patents, under office rule 126, to facts asserted to amount to a statutory bar against the grant of a patent to Mills, the alleged statutory bar arising out of the invention having been on sale for more than two years before the application was filed. Thereupon the Commissioner directed an investigation of the issue of public use, as well as sale, and testimony was duly taken. At the completion of the testimony, the case was remanded to the primary examiner to consider the evidence in the public-use proceedings, and if he found that the invention had been in public use or on sale for more than two years prior to the filing of the application, to reject the claims. The examiner finding that the statutory bar of public use or sale had not, in his opinion, been proven, the interference proceedings were resumed, and the Examiners-in-Chief awarded priority to Mills, thus affirming the decision of the Examiner of Interferences. From this decision awarding priority to Mills, an appeal to the Commissioner was taken by Torrance. After a hearing upon the question of priority the Commissioner, without deciding that question, held that the evidence disclosed a public sale of the invention, constituting a statutory bar to the grant of a patent to Mills, and thereupon dissolved the interference. The proceedings became ex parte, and formal, from that time, the primary examiner and the Examiners-in-Chief, in turn, refusing a patent to Mills, based upon the statutory bar found by the Commissioner to exist. A fro forma appeal was taken to the Commissioner, and from his refusal to grant the patent this appeal was taken. It appears that not only the claims in interference, but all other claims, were rejected; but in view of the position that we take, it is unnecessary to examine, with care, any of the claims, nor to consider any of the assigned errors, for the correction of which the appeal has been taken, save the one based upon the finding that the testimony shows that the invention covered by the claims of the Mills application had been on public sale for more than two years prior to the filing of the application in the sense contemplated by section 4886 of the Revised Statutes, IJ. S. Comp. Stat. 1901, p. 3382.</p> <p>The invention claimed is an improvement in the driving end of a Jordan pulp-refining engine for paper making. The statutory bar of public sale relates to one engine which did not go into public use until September, 1899, some nineteen months prior to the filing date of the application. The facts in reference to this engine so far as they are material to the issue may be summarized as follows:</p> <p>The appellant, Mills, at the times of making his invention and the construction of the engine, was manager of the Emerson Manufacturing Company, which was engaged in making and selling paper-mill machinery, including thereunder Jordan engines. He was not financially able to build a Jordan engine, embodying his invention, nor to put one in operation. He tried in several ways to get one built, but he was naturally dependent upon his employer to incorporate his invention in one of their Jordan engines. The Emerson company would not do this until an order was secured for one of the improved machines. The Nashua River Paper Company gave such an order the latter part of December, 1898, and the Emerson company accepted the order with the understanding that Mills was not to have any royalty or profit from any engine sold by his employer to the Nashua company. The order was also given and accepted upon the understanding that, should the new engine prove defective in any way, the Emerson company would furnish the Nashua company with one of the regular style, and allow them the difference in price which they were to pay for the engine should it prove all right. The engine was considered an experimental one, and the sale was conditional upon the improvements being of value and working all right, and all defects were to be made right. No proper test of paper-mill machinery can be had without putting it into actual use. Work was commenced on the engine, and it was completed and sent to the railroad freighthouse April 17, 1899. It does not appear when it was received by the Nashua company, but in the ordinary course it appears it would arrive in from four to six days. No other engine was sold until after the first one was tested in September, 1899, and no efforts in that direction were made. A catalogue bearing the date of March, 1899, which is admitted to illustrate and refer to the invention in controversy, is in evidence, but at this time no engine had been built, and after the order for one was received no efforts were made to obtain other orders based upon the issue of the catalogue. The sale was made for the purpose of securing a fair test of the invention. A shop test was made before it was shipped, and while doubtless such a test may be sufficient to show a reduction to practice, especially in view of favorable results being obtained by a later actual test under the conditions of ordinary use for which a machine is intended, it does not necessarily remove a machine from the domain of experiment so as to constitute a conditional sale a public sale under section 4886, IT. S. Comp. Stat. 1901, p. 3382. While the engine was at the works of the Nashua company, and before it was put into use, the inventor sent several times to learn if it was in use and with what result, and also went himself for that purpose. Changes were made in the engine, but they were not material ones. We think the evidence establishes the facts above set forth, and that the only question to be considered is whether a machine made and sold under such conditions more than two years prior to filing an application for a patent is the sale contemplated by section 4886 of the Revised Statutes.</p>

<p>Coughlin v. District of Columbia, ante, 251, applied and followed.</p>

Hearing on a petition to tbis Court by tbe appellant in a divorce proceeding to require tbe respondent, tbe husband, to provide funds for tbe prosecution of an appeal granting a divorce.

<p>Master and Servant; Defective Appliances; Negligence; Contributory Negligence; Assumption of Risk.</p> <p>1. While it is the duty of an employer to provide suitable and reasonably safe machinery and appliances for the use of his employees, and this duty cannot be avoided by intrusting its performance to some other employee, there is no guaranty by the employer that the machinery and appliances are absolutely safe (following Washington Asphalt Block & Tile Co. v. Mackey, 15 App. D. C. 410) ; and where an employee is injured while working with machinery or appliances provided by his employer, the fact of the accident raises no presumption of neglect of duty on the part of the employer.</p> <p>2. Where an employee undertakes and continues the use of defective and unsafe appliances, either with actual notice of such defect, or where the same is open to ordinary observation in the usual course of its. use, he must be deemed to have accepted the risk of all danger reasonably to be apprehended from such use, and cannot recover of his employer. (Following Hayzel v. Columbia R. Co. 19 App. D. C. 359.)</p> <p>3. Where a woman employed by a laundryman had her finger crushed while using a mangle furnished for her use, the injury resulting from the improper adjustment of the finger-guard on the mangle, and in an action by her against her employer it appeared that she was twenty-two years of age; had had two years’ experience in operating mangles-in other laundries before entering the defendant’s service, which mangles, however, had been equipped with properly adjusted finger-guards; and had operated the defendant’s mangle for two months, during which time the adjustment of the finger-guard was plainly visible, — it was held that the trial court properly directed a verdict, for the defendant.</p>

Hearing on an appeal by tbe respondent from an order of the Supreme Court of tbe District of Columbia adjudging bim guilty of contempt of court for an alleged attempt to corruptly influence a juryman in a pending cause, after a. rule bad been laid upon bim to show cause why be should not be adjudged in contempt of court therefor.

Hearing on an appeal (specially allowed) by the defendant from an order of the Supreme Court of the District of Columbia sustaining a demurrer to a plea to a declaration on a foreign judgment. Held: in substance, that the suit, :as it then stood, could not be maintained. 22 App. D. C. 48Y. That suit seems to have been thereupon abandoned, and the ■present proceedings were instituted wherein very different .questions are raised.

<p>In error, to the Police Court of the District of Columbia.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Finad Judgments and Decrees; Condemnation Proceedings.</p> <p>1. A court has the power, after the expiration of one or more terms ak which a judgment or decree has been entered, to open or vacate it if such judgment or decree be void.</p> <p>2. An order in a condemnation proceeding under the act of Congress of March 3, 1899, sec. 6, and D. C. Rev. Stat. chap. 11, confirming the verdict of a jury of seven, is void where the owner of property embraced in the verdict has filed exceptions thereto, as the latter statute provides that, if any owner shall be dissatisfied with the verdict of the jury of seven, a second jury of twelve shall be summoned, whose award shall be conclusive (following Brown v. Macfarland, 19 App. D. C. 525, and Todd v. Macfarland, 20 App. D. C. 176); and, being void, such an order may be set aside, so far as one erf the exceptants is concerned, although the term of court at which it was made has expired.</p>

<p>Physicians; Licenses, Revocation of; Professions, Practice of; Unprofessional Conduct; Statutes, Construction of; Police Power.</p> <p>1. Where the license of a practising physician is revoked by the board of medical supervisors of this District for the alleged violation of the act of Congress of June 3, 1896, 29 Stat. at L. 198, chap. 313, regulating the practice of medicine and surgery in this District, based upon causes arising subsequent to the act, and not for the violation of any regulations made by tbe board, it cannot properly be claimed in his defense that he was convicted under an ex post facto law.</p> <p>2. Where a decision of the board of medical supervisors of this District, revoking the license of a physician, is reversed by this court on the ground of the insufficiency of the complaint, there is nothing to prevent the filing of a new and effective complaint against him based upon the same acts. Under such circumstances, whether the proceeding be considered a criminal one or not, his first conviction cannot be said to be a final one, and therefore a defense, on the second trial, of former jeopardy, cannot avail him.</p> <p>3. Congress has the power to regulate the practice of medicine and surgery in this District, and had the power to prescribe the reasonable qualifications required of practitioners by the act of Congress of June 3, 1896, 29 Stat. at L. 198, chap. 313, as well as to create, as it did by that act, a special tribunal, and invest it with the power to revoke the licenses of practitioners for sufficient cause; and sufficient cause exists in the employment of fraud or deception in passing the examinations required, in chronic inebriety, the practice of criminal abortion, or in case of conviction involving'moral turpitude, as declared in that act.</p> <p>4. The conviction of a physician of distributing obscene and indecent printed matter in this District is a sufficient ground for the revocation of his license by the board of medical supervisors, under the authority granted that board by the act of Congress of June 3, 1896, 29 Stat. at L. 198, chap. 313, regulating the practice of medicine and surgery in this District.</p> <p>5. In defining a punishable offense, words may properly be used by the legislature, which have a settled meaning, or which indicate offenses well known to and defined by the common law, reasonable certainty being all that is required; and liberal effect is always to be given to the legislative intent, when possible; but where the legislature declares an offense in words of no determinate signification, or its language is so general and indefinite that it may embrace not only acts commonly recognized as reprehensible, but also others which it is unreasonable to presume were intended to be made criminal, the statute will be declared void for uncertainty. (Following Stoutenburgh v. Frazier, 16 App. D. C. 229, 48 L. R. A. 220.)</p> <p>6. “Unprofessional or dishonorable conduct” is not defined by the common law, and the words have no common or generally accepted signification; and what conduct may be of either kind is-a matter of opinion only.</p> <p>7. The test to determine whether a statute defining an offense is void for uncertainty is whether the language may apply not only to a particular act about which there can be little or no difference of opinion, but equally to other acts about which there may be radical differences, thereby devolving upon the court the exercise of arbitrary power of discriminating between the several classes of acts.</p> <p>8. The police power of every State warrants the requirement of the possession of all reasonable qualifications by those who seek to engage in the public practice of medicine, and, incidentally, the extension of a wide discretion to those agencies charged with the duty of inquiry and determination; but the exercise of the same wide discretion cannot be extended to a case where, when one has been regularly admitted, the revocation of his license is sought under another and independent provision of the same statute.</p> <p>9. The right to practise a profession, when regularly obtained by compliance with the law, becomes a valuable privilege or right in the nature of property, and is safeguarded by the principles that apply in the protection of property lawfully acquired, and these are of the same general nature, though not in all particulars, as those which safeguard one prosecuted for the commission of a minor offense.</p> <p>10. So much of the act of Congress of June 3, 1896, 29 Stat. at L. 198, chap. 313, as authorizes the board of medical supervisors in this District to revoke the license of a medical practitioner. upon conviction of “unprofessional or dishonorable conduct,” independently of other offenses for which a license may be revoked, is void for uncertainty; it being a matter of opinion whether any given act constitutes such conduct; and an order of the board is void which revokes the license of a physician on a complaint charging him with such conduct in that he circulated obscene matter.</p>

Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia dismissing a bill in equity to enforce a trust against certain real estate. The facts are sufficiently stated in the opinion.

Hearing on an appeal by tbe respondent, a justice of tbe peace, from an order of tbe Supreme Court of tbe District of Columbia directing tbe issue of tbe writ of mandamus to compel tbe approval of an appeal bond. Tbe facts are sufficiently stated in tbe opinion.

<p>Hearing on an appeal by tbe plaintiffs from a judgment of the Supreme Court of the District of Columbia upon a verdict directed by the court in an action against the members of a voluntary association sued as copartners.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This is an appeal by the appellants, John C. Norwood and Thomas H. Wright, executors of Charles F. Murray, who were the plaintiffs below, from a judgment in favor of the appellees, John E. Francis and Anna M. Johnson, entered in pursuance of a verdict found under the instructions of the court. Charles F. Murray, in November, 1901, deposited $2,880 in the Capital Savings Bank. This bank, organized in the District of Columbia in 1888, was an unincorporated joint stock company, carrying on its business under written articles of agreement signed by its stockholders. It failed in November, 1902, and receivers of its assets were appointed January, 1903. The suit was brought originally against several of its alleged stockholders, and included among the number were these appellees. As the defenses interposed on behalf of the appellees are different, they will be separately considered.</p> <p>1. In October, 1892, the appellee, John A. Francis, purchased five shares of the bank stock. On November 1, 1898, he sent to the company the following notice of withdrawal:</p> <p>Nov. 1st, 1898.</p> <p>To the Directors and Stockholders Capital Savings Bank.</p> <p>Gentlemen: Permit me to hereby notify you of my withdrawal as a stockholder from the Capital Savings Bank.</p> <p>You will please forward to me, at your earliest convenience, the amount which my five shares of stock are worth at this date.</p> <p>Regretting the circumstances that compel me to withdraw, I am, Respectfully yours,</p> <p>John R. Francis.</p> <p>Article 12 of the articles of association, providing for withdrawals, is as follows:</p> <p>“Any member of the company may withdraw therefrom, by giving thirty (30) days’ notice, and settlement shall be made with him in the manner hereinafter provided for. But the company reserves the right to postpone the payment of what may be due him from the company for ninety days after the date of filing of such notice of withdrawal.”</p> <p>Receiving no reply to his letter in April or May, 1899, he sold his stock to one Tyson, and demanded that the board of directors transfer the shares to Tyson. Obtaining no satisfaction, on October 9, 1899, he sent the following letter:</p> <p>Washington, D. C., Oct. 9, 1899.</p> <p>To the Board of Directors and Stockholders of the Capital Savings Bank.</p> <p>Gentlemen: Some months have passed since I made an application for the transfer of my stock to Mr. Henry O. Tyson, to whom it was sold. Up to the present time I have received neither anything definite as to your action in the matter, or the return of certificates to Mr. Tyson or myself.</p> <p>I again apply hereby for a properly certified transfer of stock and a return of certificates.</p> <p>Yours respectfully,</p> <p>John R. Francis.</p> <p>A few days later he addressed a communication to the directors and stockholders of the bank, stating that he declined the appointment to a directorship in the bank, as he was not a stockholder, and requested that his name be canceled from the list of officers. At the same time he again called attention to his desire for a proper transfer of his stock, and stated that it was the third time that he. had made such application. He never was an officer or director of the bank, nor in any way took part in its management, nor ever attended any of the meetings of the stockholders or directors, and received no dividends on his stock after November 1, 1898, and had no deposit account with it.</p> <p>There is no evidence to show that Murray, when he made the deposit to recover which this suit is brought, had any knowledge that Francis was or ever had been connected in any way with the bank, although the record shows that an offer was made to show that at a trial of a case in the supreme court of the District of Columbia, in 1895, the articles of agreement of the bank, and the names of the signers, including that of Francis, were read in evidence. This evidence, as stated, was for the purpose of showing that it was generally known in the city of Washington at that time that Francis was a member of the company. The testimony was ruled out by the presiding judge, and properly so, we think. The trial occurred six years' before Murray made his deposit, and three years before Francis withdrew as a member of the association.</p>

<p>Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia on tbe verdict of a jury in an action to recover damages for an alleged assault and battery.</p> <p>Tbe Court in tbe opinion stated tbe case as follows:</p> <p>Tbe declaration in tbis case was filed by tbe appellee, Eebecca E. Perlie, as plaintiff, on October 13, 1902, to recover damages for injuries received from an assault and battery committed by tbe defendant, Jerome Hubbard, on October 1, 1902.</p> <p>After a statement of tbe facts constituting tbe assault, tbe declaration alleged tbat, by reason of tbe wounds and injuries so received, plaintiff “became and was sick, disordered, and shocked as to ber nervous system, and so remained and continued for a long space of time, — to wit, for tbe space of tbe number of days intervening between tbe inflicting of said blows and committing of tbe said assault, until tbe filing of tbis declaration, — during all of wbicb time tbe said plaintiff suffered and underwent great pain wbicb still continues to exist, and which caused said plaintiff to pay and expend money in and about endeavoring to be cured of the wounds, bruises, sickness, soreness, lameness, and disorder, and nervous affection, aforesaid, occasioned by the assault aforesaid, to the great damage and injury of the said plaintiff. Wherefore the said plaintiff claims that she is injured and has sustained damages to the amount of $10,000, which she claims, besides costs.”</p> <p>The evidence on behalf of the plaintiff tended to show: That she had occupied the house of the defendant, as a tenant, for one year ending September 1, 1902. That her niece lived with her, and defendant remained in the house, occupying a room reserved for that purpose in the lease. That prior to September the defendant married the said niece, and thereafter notified plaintiff to vacate the house. That she did so, leaving part of her furniture to be called for when wanted. That on October 1, she went to the house with a wagon to remove said furniture. That she was admitted to the house, and defendant’s wife met her in the parlor. That the latter telephoned to defendant to come home. That she undertook to take a table from a room upstairs, when defendant’s wife seized it to prevent its removal. That defendant came in unobserved by plaintiff, and seized her and “slammed her against the sharp edge of the door.” That she became unconscious, but did not fall, and said to defendant, “you have taken the law in your own hands.” That defendant replied: “Damn the law, I will break your neck downstairs.” That he then slammed her against the other side of the door. That she remembered nothing thereafter until she went into the street. That she re-entered the house and fell in a rocking chair, and defendant brought her a glass of water. That defendant said, “Let this blow overto which she replied, “This is the biggest mistake of your life.” That she returned home, —suffered intensely; and was confined to her bed for thirteen days. That she had suffered constantly since and had had surgical treatment. That she had her back cauterized for the ailment resulting from the injury. Defendant objected to this as an expression of opinion, and excepted w'hen overruled.</p> <p>Dr. Morgan testified for plaintiff that he had been called within twenty-four hours; and saw bruises on plaintiff’s right and left arm and on her right leg, above the knee. She complained of feeling sore, and of pains down her back and through the whole body. She was in a highly nervous, excitable state. The fee for his treatment and trouble would be about $250. In cross-examination, he said the bruises had every appearance of having been made within twenty-four hours. That plaintiff had subsequently called upon him and telephoned him often, and made herself a nuisance. That his estimate of fee would be chiefly for the annoyance given him, and not for actual treatment. That he had once treated plaintiff for bruises some five years before, but these had no connection with those treated in October, 1902. Objection was made to the evidence of charge for services, on the ground that it included those rendered after the declaration had been filed. This was overruled, and exceptions noted.</p> <p>Dr. Kuffin testified to having been consulted by plaintiff some four or five months before the trial; found nothing the matter with her chest. There was a place on her collar bone, and there may have been a fracture there ten or twenty years before. She had a rapid pulse and was more or less nervous. Had been so ever since he had known her. He made no statement of any charge for services. Objection was also made to his testimony.</p> <p>Dr. J. Ford Thompson, called by the plaintiff, testified that he had known her for years. That some years ago, prior to the assault, he had operated upon her for á tumor just below the knee joint. That she had consulted him some two months since for a painful spine. That he cauterized her, producing some ulcers.' That her general condition did not appear to be bad. That in his opinion injury to the spine might have followed if she had been seized by a powerful man and thrown against the door-jam; but that such a condition would not always follow. That she had been under the treatment of a young physician who occupied the house. That he supposed his bill would be about $100, “if she is able to pay it.” A like objection to this evidence was also made and overruled, with exceptions reserved.</p> <p>Defendant’s testimony tended to show that there had been considerable trouble with the plaintiff, and defendant had requested her to stay away from his house. That he had told her, when she got ready to move her furniture he would help her, but did not want her to come when he was not there. That defendant was telephoned for, went to the house, and found plaintiff there. That plaintiff was abusing his wife. That he told plaintiff to leave or he would call a policeman. That he said, “You must go out of the house; you cannot have this business around here.” That in saying so, he put his hand on her arm. That she said: “You have put your hands on me; you have taken the law in your hands.” That he said, “I will call an officer;” when she said: “I guess it is not necessary; I guess I will go.” That she then went downstairs. That defendant went down and saw some chairs being loaded in a wagon. That he said, “Those chairs do not belong to you;” and took one and started to put it in the hall, when she took hold of it and said he could not have it. That she went away, but returned in a short time, and said she wanted to talk the matter over, and was excited and nervous and wanted some whisky. That there was no whisky, but defendant gave her some stomach bitters with a little water, which she drank. That she remained awhile talking, asked defendant’s wife to forgive her, and then went away. That he did not use any violence; did not push her against the door. That he told her this thing could not go on and took hold of her arm without violence; was provoked and excited, but did not grip her arm. That he took her by the arm because she was trying to pull the table away from his wife at the time.</p> <p>Defendant’s wife testified to the abusive language of plaintiff, and to her message to her husband to come to the house because of it. She corroborated defendant’s testimony as to the occurrences after his arrival.</p> <p>Several witnesses were called, who corroborated defendant in some substantial particulars, and several others impeached plaintiff’s reputation for veracity.</p> <p>Defendant asked fourteen special instructions to the jury, all of which were denied. The court then charged the jury generally, and they returned a verdict for plaintiff for $600. Erom the judgment thereon defendant has appealed.</p>

Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia dismissing a bill for divorce. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia on a verdict directed by tbe court in a case… Held: wbo was tbe plaintiff before bim. Upon appeal by tbe defendant, John T. Walker, to tbe supreme court of tbe District, and a new trial bad therein before the court with a jury, tbe court directed a verdict in favor of tbe defendant, and judgment was entered thereon, from which tbe plaintiff has appealed to tbis court.

<p>Hearing oh an appeal by the complainant from a decree of tbe Supreme Court of the District of Columbia in a suit in equity for the construction of a will.</p> <p>The Court in the opinion stated the ease as follows:</p> <p>This is an appeal taken from a decree entered in the court below in favor of the appellees, Diehard H. Brown and Cora L. Peters, who were the defendants below. The question involved in the suit was as to the proper construction and interpretation of a will executed by Henry P. Montgomery, deceased, a brother of the complainant, Winfield Scott Montgomery. Should the will be construed according to the contention of the complainant, specific relief is asked relative to certain notes and securities.</p> <p>The record discloses that Henry P. Montgomery, a resident of the District of Columbia, died April 26, 1899, leaving a will dated December 1, 1898. The will devised to Emma V. Montgomery, his wife, all his real estate during her life, with power to mortgage should her circumstances become such as to justify it. Certain specific bequests were made, one of which was re-voted by a codicil, which codicil also contained a bequest of certain other personal property. In addition thereto, the will contained two clauses, which are the ones to be construed. They are as follows:</p> <p>“I also- bequeath to my wife, Emma Y. Montgomery, my life insurance and all other property, not otherwise disposed of by this will. * * *</p> <p>“At the death of my wife, Emma Y. Montgomery, all my property — real, personal, and mixed — shall revert to my brother, Winfield Scott Montgomery, and his heirs forever.”</p> <p>Emma Y. Montgomery and Winfield Scott Montgomery were appointed executors, the will was probated in June, 1899, and the executors qualified. They collected the life insurance money, amounting to $5,000, which was taken by Emma Y. Montgomery, who deposited $4,800 of the amount, in her name, in certain Washington trust companies. Emma Y. Montgomery died October 26, 1902, intestate, leaving as her heirs at law and next of kin, the defendants, her brother and sister. Richard H. Brown, one of the appellees, was appointed administrator of the estate of Emma Y. Montgomery, in December, 1902. The inventory and appraisal of her personal estate, as filed, disclosed that such estate amounted to about $1,000. Among the items were three notes amounting in the aggregate to $4,500, secured by deeds of trust, which are the notes asserted to have been bought with the life insurance money. It appears that the appellant, while Richard II. Brown’s petition for appointment as administrator of the estate of Mrs. Montgomery was pending, filed an intervening petition asserting that these notes were purchased with the life insurance money and that they, as well as all other personal property which Mrs. Montgomery received under the will of her husband, passed at her death to this appellant.</p>

Hearing on an appeal by tbe defendant from a decree of tbe Supreme Court of the District of Columbia in a suit to vacate a deed as having been fraudulently obtained.

Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia dismissing a bill for an injunction against the Secretary of the Treasury.

Hearing on an appeal by tbe defendant from a decree of tbe Supreme Court of tbe District of Columbia in a suit in equity to construe a will.

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

<p>Patents; Intebfebence.</p> <p>Jones v. Cooke, ante, 524, applied and followed.</p>

Hearing on an appeal from a decision of tbe Commissioner of Patents rejecting tbe claims of an applicant for a patent Tbe facts are sufficiently stated in tbe opinion.

Hearing on an appeal by tbe defendants from a decree of the Supreme Court of the District of Columbia enforcing the specific performance of a parol contract relating to land. The Court in the opinion stated the case as follows: This is an appeal from a decree of the supreme court of the District enforcing specific performance of a parol contract relating to land.

<p>Hearing- on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia upon a verdict of guilty, in a prosecution of a former letter carrier for the embezzlement of a letter.</p> <p>The Court in the opinion stated the case as follows:</p> <p>The appellant, J. Harry Byram, Jr., was a mail carrier employed in the postoffice of the city of Washington on or before November 19,1902. He appeals from a conviction and sentence under an indictment which charged him, in three counts, with: (1) On that date unlawfully detaining and opening ' a letter that came into his possession for carriage and delivery; (2) with secreting, embezzling, and destroying the same letter; (3) with stealing a certain one dollar bill enclosed therein.</p> <p>The bill of exceptions reserved on the trial reads as follows:</p> <p>“Be it remembered that on the trial of this cause, the United States, to maintain the issue joined on the plea of not guilty of the defendant, offered evidence tending to prove that the defendant was a letter carrier of the United States, delivering mail in the District of Columbia, and that the letter described in the indictment was written by an employee of the Postoffice Department, in the Postoffice Department building in Washington, in the presence of a fellow employee, and was addressed to Col. O. C. Sabin, in Washington, D. 0., and was signe'd with a fictitious name, and that the letter was dated at Hutchinson, Kentucky, and placed with a marked dollar in an envelope stamped and addressed to Col. O. O. Sabin, in Washington, D. C., and that said letter was then postmarked Hutchinson, Kentucky, and was by the said employee, who had prepared it, delivered to the superintendent of delivery in the city postoffice at AVashington, D. 0., and by the latter given to the foreman of carriers employed in the postoffice at Washington D. 0., and by the latter placed in one of the distributing boxes regularly used by carriers in the ordinary course of the delivery of United States mail, and so used by the defendant for the distribution of mail to be delivered by him, from which box the defendant was seen to take the letter as if to deliver the same; that said letter was not written by the person purporting to have signed the same, nor written in Hutchinson, Kentucky, nor sent by mail from there, and was postmarked as received in Washington, D. 0., November 19, 1902, though it was not so received from Hutchinson, Kentucky; that said letter was not received by Colonel Sabin, to whom it was addressed, but was destroyed by the defendant and the marked dollar placed therein by said agent was, in the city of Washington, taken by the defendant from said letter while in his custody; that said letter was not deposited in Kentucky in the usual way for delivery in said city of Washington, and thereupon the government rested its case.</p> <p>“Whereupon the defendant asked the court to instruct the jury that under these circumstances the said paper purporting to be a letter was not such a letter contemplated under sections 5467 and 5468, U. S. Oomp. Stat. 1901, pp. 3691, 3692, of the Revised Statutes of the United States — intended to be conveyed by mail, and that the jury should acquit; which request was denied and the defendant then and there excepted.”</p>

<p>Hearing on an appeal by the accused from a judgment of conviction of the Supreme Court of the District of Columbia in a prosecution for embezzlement.</p> <p>Tbe facts are sufficiently stated in tbe opinion.</p>

Hearing on an appeal by the accused from a judgment of conviction for criminal libel, and sentence of the Supreme Court of the District of Columbia, The Court in the opinion stated the facts as follows: The appellant, Albert M. Raymond, was indicted and convicted in the supreme court of the District for the publication of a criminal libel against certain officials of the District government, including one of the commissioners, the chief of police, and the building inspector;…

The Court in the opinion stated tbe case as follows: The appellee, Bushrod T. Garrison, was arraigned in the police court of the District for refusing to furnish to an inspect- or of the health department a sample of milk, in which article he was a dealer, sufficient for the purpose of analysis, in alleged violation of the act of Congress of February 17, 1898, 30 Stat. at L. 246, chap. 25, enacted for the prevention of adulteration of drugs or articles of food.

<p>Hearing on an appeal by complainants and certain of tbe defendants (wbo severed from tbeir codefendants) from a decree of the Supreme Court of the District of Columbia, overruling exceptions to and confirming a report of the auditor in a suit for partition, in which the property had been sold by consent of the parties, and the proceeds held to await the final determination of the cause.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This suit was begun by a bill filed by Amelia C. Travers and her husband, Charles E. Travers, whose assignee she is, for the partition of certain real estate in the District of Columbia formerly belonging to Nicholas Travers, who died testate in January, 1849. The defendants are heirs at law or claimants under certain devisees of the said Nicholas Travers. The property has been sold by order of the court, all parties consenting thereto, and the distribution of the proceeds of the sale awaits the final determination of the interests of the several claimants thereof.</p> <p>Nicholas Travers devised a large estate in unequal proportions to his four sons and three daughters, — Elias, Nicholas, Joseph, James, Mary, Elizabeth, and Sidney Virginia. The greater portion was devised among the sons named in two classes of devises. In those of the first class he used the words “in fee simple.” In the second class these words are omitted; The distinction made between the two is expressly recognized and referred to in the following general provision: “With regard to the several estates hereinbefore devised to my several sons, it is hereby declared to be my will, and I do order and direct, as a general provision, that if any of my sons should die without leaving a wife, or a child, or children living at his death, then his estate herein devised to him, saving and excepting those portions thereof expressly granted and so named to be ‘in fee simple,’ and which they can sell and dispose of as they think fit, shall go, and be invested in fee, to my surviving sons, and the child or children of such as may be dead, such child or children representing the share of the father; but, if either of my sons shall, at his death, leave a wife, either with or without a child or children, such wife shall be entitled to her dower rights and privileges.” The property involved in this controversy is the real estate (and now the proceeds thereof), coming within the limitations of the foregoing general provisión, that was devised to Joseph Travers and James Travers. Joseph Travers died intestate in September, 1882, leaving a widow since deceased, but no child or children, or descendants of such. His heirs at law were his brothers Elias and James and his three sisters before mentioned. James Travers died in October, 1883, leaving a will devising his real estate in the District of Columbia to his surviving brothers and sisters, and all property elsewhere to his wife. Whether he was ever lawfully married to the person named in the will as his wife is one of the questions to be determined.</p> <p>Elias Travers died intestate on April 29, 1887, and his heirs at law are his children, Charles E. Travers and the defendants John H. Travers, Joseph Travers, James W. Travers, Sidney Travers, and Hate M. M. Owens. These last claim the entire interest in the real estate devised to Joseph and James Travers that comes within the limitations of the provision of the will of Nicholas Travers before quoted. The auditor, to whom the settlement of the account of sales and the settlement of the interests of the parties had been referred, found against this contention. He found, also, that James Travers had been married to the wife named in his will, who survived him.</p> <p>His report was confirmed, and a decree entered for the distribution of the proceeds of the sale in accordance therewith, from which this appeal has been prosecuted by the heirs of Elias Travers.</p> <p>[The further material facts will be found stated in the opinion.]</p>

<p>Accounting; Auditor’s Report; Exceptions; Lobbying; Services; Laches.</p> <p>1. Where a contract between an attorney and the administrator of C., from whom he received valuable papers in a number of French spoliation claims, provided that the administrator was to receive 25 per cent of the fees realized, after deducting certain expenses, including “office rent,” it was held, on an accounting between the parties, that a charge of $35.96 out of $45 a month, office rent, paid by the attorney, against such contract, was not unreasonable, it appearing that the attorney’s office was maintained almost exclusively for the prosecution of claims of that character.</p> <p>2. The findings of a master or auditor, concurred in by the court below, are to be taken as presumptively correct, and will be permitted to stand, unless some obvious error has intervened in the application of the law or the principles of the decree under which he acts, or some important mistake has been made in the evidence, which has been clearly pointed out and made manifest. (Following Richardson v. Van Auken, 5 App. D. C. 209.)</p> <p>3. Exceptions to the allowance by the auditor in an accounting, of items of office expenses aggregating specified sums, covering specified dates, upon the ground that, on the evidence before him, he should have disallowed such items, are too general to be considered on appeal. (Following Richardson v. Van Auken, 5 App. D. C. 209.)</p> <p>4. Where a contract between an attorney prosecuting certain claims and another provided for the allowance to the attorney of “clerk hire,” and for compensation to assistant attorneys before distribution of the fees realized, an allowance by the auditor to the attorney’s estate, of $65 a month each for two clerks, and $100 a month to an associate attorney, for services covering a period of years, was held not to be unreasonable, in the absence of countervailing proof.</p> <p>5. In an accounting between the estate of an attorney and another, involving the distribution of fees realized in the prosecution of government claims, allowances to the attorney’s estate for the professional services of several persons, alleged to have been rendered in collecting the fees, were held to be improper, where it appeared that the services were of the kind known as “lobbying services.” (Following Owens v. Wilkinson, 20 App. D. C. 51.)</p> <p>6. Where an item allowed by the auditor in an accounting is not on its face unreasonable, it is incumbent upon the party objecting to show the impropriety of its allowance.</p> <p>7. The claim that the complainant is guilty of laches, and that the defendant is entitled to the benefit of the statute of limitations (made in argument only), is untenable, in a suit against an attorney’s estate for an account of fees realized in the prosecution of government claims, where but two appropriations were made to pay the claims, one in 1893 and the other in 1899, and the defendant alleges that the expenses incurred in the prosecution of the claims up to 1893 exceeded the appropriation then made, and the suit, after the failure of negotiations for a settlement, was filed within two years after the last appropriation.</p>

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