Volume 26 — Appeals, District of Columbia

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

<p>Trial; Motion to Direct a Verdict; Deed-of-Trust Notes; Trustees; Agency; Ratification.</p> <p>1. A motion by the plaintiff at the close of all the evidence to direct a verdict in his favor is in the nature of a demurrer to the defendant’s evidence, and on its hearing the evidence on behalf of the defendant, with all fair and reasonable inferences to be deduced from it, must be taken as true.</p> <p>2. Where, in a suit on a deed-of-trust note against an indorser for a deficit remaining after the sale of the real estate upon which the note was secured, it appears that immediately after the sale an agreement was made between one of the holders of the note, who were also trustees under the deed of trust, and the indorser, that, if the latter would procure a purchaser of the property (which had been bid in by the trustees themselves) for a sum sufficient to pay the principal and interest of the note and costs, the note would be surrendered to the indorser, and that the indorser procured such a purchaser, who entered into a contract of purchase with the trustee, and consummated the contract,—it is error for the trial court to direct a verdict for the plaintiffs.</p> <p>3. While, when the administration of a trust is vested in several trustees, they must all co-operate in the exercise of the powers of their office, and cannot act separately or independently of each other, one trustee may act as agent of his cotrustees, and there may be ratification of the act of one trustee by his cotrustees.</p> <p>4. Where one of two deed-of-trust trustees, who had bid in the real estate at a sale under the trust, upon default in the payment of the note secured, agreed with an indorser of the note that, if he would procure a purchaser of the property for a sum sufficient to pay the note, with interest and costs, it would be surrendered, and the indorser procured such a purchaser, a sale to the latter by both trustees is a ratification by both of the agreement between the one and the indorser, who is thereupon discharged of his obligation on the note.</p>

<p>Departmental Practice; Statutory Construction; Patents; Patent PRACTICE; APPEALS; INTERLOCUTORY RULINGS; MANDAMUS.</p> <p>1. While if a departmental practice is contrary to law, it is not made lawful by the practice of a department for a long period of time, yet Rue regard should be given to a practice which admittedly has prevailed for more than twenty-five years, in proceedings of a judicial nature, even should there be a reasonable doubt in the mind of the court as to the proper construction to be placed upon a statute.</p> <p>2. In construing a statute relating to appeals in patent cases, the terms of the statute should receive a reasonable interpretation, and be so construed as to avoid multiplying litigation or producing unnecessary delay and expense to the parties concerned, and to prevent, as far as possible, embarrassment and hindrance to the proceedings in the Patent Office (following Westing house v. Duncan, 2 App. D. C. 131) ; and this applies equally to appeals in the Patent Office in interlocutory proceedings in interferences.</p> <p>3. It would seem that it might, in many cases of interference, be quite difficult to decide the question of priority, where the evidence shows that the device disclosed in the application is not operative. Other ancillary questions have been reviewed by this court when they have properly come before it on appeals from final judgments awarding priority of invention. (Following Stevens v. Seher, 11 App. D. 0. 245.)</p> <p>4. Mandamus will not lie by a party to an interference proceeding, to compel the Commissioners of Patents to direct the Examiners-in-Chief of the Patent Office to reinstate and take jurisdiction of an appeal taken by the relator from a ruling of the primary examiner denying his motion to dissolve an interference which had been declared between his unexpired patent and a pending application.</p> <p>5. A motion to dissolve an interference in the Patent Office before the final hearing of the question of priority, and before the case is ready for such hearing, is an interlocutory proceeding, and is not appealable to this court unless made so by statute or rule of court; and neither sees. 482, 4904, or 4909, U. S. Rev. Stat.(U. S. Comp. Stat. 1901, pp. 272, 3389, 3390) nor any rule of the Patent Office, gives the right of appeal to the Examiners-in-Chief from decisions made by the principal examiner on the hearing of a motion to dissolve, holding that the party has the right to make the claim which is the issue of the interferences.</p> <p>6. Where the statute gives the right of appeal in interferences from decisions of any officer of original jurisdiction, it means final decisions, and the right to such an appeal should be clear; and, if there be any doubt as to the construction of any statute claimed to confer the right, such doubt must be resolved in favor of a long-established practice of the Patent Office to the contrary.</p> <p>7. A party to an interference is not deprived of any statutory right to an appeal by reason of the rules of the Patent Office not providing for an appeal from the decision of an examiner that a party has a right to make the interfering claim.</p> <p>8. Whatever right a party to an interference has to contest the right of his adversary to make the interfering claim, such right, if denied, is reviewable, if at all, upon the final decision of the question of priority, and such right of appeal as he has to have that question decided is to be construed on the hearing of the statutory appeals allowed from the decisions of the question of priority by the Examiner of Interferences.</p>

Searing on an appeal by an applicant for a patent from a decision of the Commissioner of Patents rejecting his application. The facts are sufficiently stated in the opinion.

<p>Officers; Municipalities; Nuisances; Statutory Construction; Public Printer; Smoke Law.</p> <p>1. A public official charged Avith the commission of a public nuisance which the legislative poiver of the State has endeavored to prohibit cannot protect himself by a claim that in the performance of the act he represents the State.</p> <p>2. A municipality, even in the performance of its governmental functions, is not entitled to perpetrate a nuisance (following Roth v. District of Oolumbia, 16 App. D. C. 323) ; and the same rule will apply still more strongly to the executive officers of the government, whose duty it is to execute and obey the laws, and not to violate them.</p> <p>3. All laws are presumed to be consistent with each other until the contrary is shown; and, therefore, it is no excuse to a public official, to secure him immunity for the violation of one law, that he is obeying another. He must obey both.</p> <p>4. The Public Printer, as the custodian of the Government Printing Office, may lawfully be convicted of a violation of the act of Congress of February 2, 1899 (30 Stat. at L., 812, chap. 79) declaring the emission of dense or thick black or gray smoke from any smokestack or chimney in the District of Columbia, other than the chimneys of private residences, to be a public nuisance, and making “the owner, agent, lessee, or occupant, of any building of any description,” from the smokestack or chimney of which any such smoke shall issue, liable to the penalty of the act, and providing “that no discrimination shall be made against any method or device which may be used for the prevention of smoke, and which accomplishes the purpose of this act;” and it is no defense that the accused made estimates to Congress for the use of soft coal in the building under his charge, and that Congress approved them, and made an appropriation of money for the conduct of his office in accordance with them. It is not the use of soft coal that causes the public nuisance, but the use of it in an improper way-and without proper appliances. (Chief Justice Shepard dissenting. )</p> <p>£. Nor, in such a prosecution, would it be a defense that Congress has not furnished the accused with proper appliances wherewith to devest the use of soft coal of its resultant nuisance of smoke, where it does not appear that, during those years the smoke law has been in operation, he made any effort to procure an appropriation from Congress for such appliances. (Chief Justice Shepard dissenting.)</p> <p>■6.; In such a ease, Congress not being in session at the time of the decision, so that the appellant could not make the necessary application to it for relief, the Court suggested, in its opinion, that the municipal authorities would do well to exercise a discretion in the matter of further prosecutions at the time.</p>

<p>Rute in Sheluey’s Case; Wnxs; Remainders; Testamentary Intent.</p> <p>1. The rule in Shelley’s Case defined. (Following Sims v. Georgetown College, 1 App. D. 0. 72.)</p> <p>2. Where real estate is required by a will to be converted into money, it will be regarded as if it were money at the time of the testator’s death.</p> <p>3. Qucere, Whether the rule in Shelley’s Case is equally applicable to personal property as to real estate.</p> <p>4. In order that two estates attempted .to be created shall coalesce under the rule in Shelley’s Case, they must be of the same quality,— that is, both must be legal or both equitable; and, if one be equitable and the other legal, the rule will not apply. (Following Sims v. Georgetown College, supra.)</p> <p>5. A remainder is a vested one where a present interest, although to be enjoyed in the future, passes under the will to a certain and definite person; and estates will be held to vest at the earliest possible period, unless there be a clear manifestation of the intention of the testator to the contrary.</p> <p>6. A trust estate is not to continue beyond the period required by the purposes of the trust.</p> <p>7. When a trust relating to personalty has been created, and all the purposes of the trust have ceased, or are at an end, the absolute estate is in the person entitled to the last use, unless there is an apparent intention to the contrary.</p> <p>8. Where a testator, by his will, directs his executors to sell the residue of his real estate when his youngest surviving child reaches the age of twenty-one years, and to divide the proceeds among his heirs, share and share alike, excepting the share of one son, which is to be held in trust and invested and the income paid to him, and, after his death, the principal to be paid to his heirs, and the son has an infant daughter, the son does not take an absolute estate, but is entitled to the income thereof during his life, with remainder to his daughter; and, the life estate being equitable, and the remainder legal, there can be no merger of the two estates, under the rule in Shelley’s Case.</p> <p>9. While the testator’s intention will be enough, especially in case of real estate, to exclude the application of the rule in Shelley’s Case where the technical language used is directly within its application, still, if there be explanatory and qualifying expressions from which it appears that the import of the technical language is contrary to the clear and plain intent of the testator, the former must yield, and the latter must prevail. The rule is one of property, and not of construction.</p> <p>10. When the word “heirs” is used in gifts of personalty, it should primarily be held to refer to those who would be entitled to take under the statute of distribution, such as children or next of kin.</p>

<p>Hearing on an appeal by the defendants from an order of the Supreme Court of the District of Columbia adjudging them guilty of contempt of court for violating a temporary restraining order.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on a motion by the appellee to dismiss or affirm a decision of the Commissioner of Patents; and on a motion by the appellant to postpone the hearing on appellee’s motion until a succeeding term. Motion to postpone denied; motion to dismiss appeal denied; and motion to affirm granted. The facts are sufficiently stated in the opinion.

The Court in the opinion stated the facts as follows: The appellant, Albert Fields, was arraigned in the police court of the District upon an information against him wherein he was charged with being “a vagrant, an idle and disorderly person, a person of evil life and fame, a person without visible means of support, a person repeatedly in and about the streets, avenues, alleys, roads, and highways, to wit, C street northwest,” in alleged violation of the act of Congress of…

<p>Hearing on an appeal by the accused from a judgment of the' Supreme Court of the District of Columbia in which he was found guilty by the verdict of a jury in a trial for grand, larceny.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This is an appeal from a judgment and sentence under am indictment for grand larceny. The indictment charged the felonious taking and conversion of a trunk and certain wearing-apparel and jewelry of the value of about $1,000, the property of one Lillian B. Anthony, on December 24, 1904.</p> <p>The evidence on behalf of the government tended to show the-following facts: That defendant, on said day, applied to the proper officer of the Southern Railway Company, in the city of Washington, for a pass to the city of Memphis, representing-himself to have been a former locomotive engineer on one of the lines of said railway. That he gave his name as John Riley and received the said pass in that name. That he was about-the station several times during the day between noon and 6' o’clock n. m. That he presented his pass and obtained a check thereon for two trunks to Memphis. He then said that he was; the oldest engineer on the road. That later he requested checks for two other trunks, stating that the same belonged to his wife ■who was sick and in the waiting room. That in fact he had no wife in the District of Columbia. That he presented no cheeks ■or receipts for the trunks, and none were then attached thereto. That he was questioned closely and identified the trunks to the ¡satisfaction of the .baggage checker. That checks were given hini to Memphis for the said trunks. That one of these was the trunk identified by Mrs Anthony as her property.</p> <p>On cross-examination the witness said that defendant was .about the station several hours posing as an employee of the railway company; that he did not notice his actions particularly, .and did not form an opinion that he was drunk. He was then asked if he had not recently told certain persons, at a named time and place, that the defendant was drunk when he obtained ■•the checks. Upon objection by the government, the witness was not permitted to answer.</p> <p>Another witness for the government said that he was in charge •of the station baggage room at the Pennsylvania station, and -saw defendant around the room several times on that afternoon; that defendant was boisterous and profane, and he ordered him to leave; that he ejected him because of his conduct when he refused to go; that defendant returned later; was boisterous and used indecent language, whereupon witness went to the comer .and “reported facts” to a police officer who removed defendant from the room. On cross-examination he was asked what '“facts” he reported to the officer, but, the government objecting, .answer was not permitted. Then he was asked to state the •condition of defendant with respect to his sobriety as indicated by his actions and language. Witness replied that he formed the opinion that defendant was a nuisance, and that while he had been drinking did not think him drunk. He was then asked if he had not recently told certain persons, at a time .and place, designated, that defendant was very drunk, and further, if he had not said that defendant was boisterous and using indecent language “in a way that none but a drunken man would.” He was further asked if he had not said, at the time that Mrs. Anthony complained of the loss of her trunk, that he had checked the trunk because he thought he was doing a favor for an old railroad man who was “so drunk that he did not know anything.” Objection was made to the witness answering each of these questions, and the court, in sustaining the same, said “What difference does it make if he was drunk ?” Two officers of the police force of the city of Dallas, Texas, and a member of the detective force of the city of Washington gave evidence-tending to show that defendant had the trunk, identified as belonging to Mrs. Anthony, in Dallas, Texas, where he was arrested; that he tried to sell the seal-skin coat described in the-indictment; that he claimed that the said trunk and its contents-were the property of his wife, and that he had been instructed by her to deliver certain articles to her sister, who resided in Dallas, but that, failing to- locate the said sister, he had tried to-sell some of the said articles. George A. Anthony, the husband of the owner of the trunk, identified the same as produced by the witnesses aforesaid, and testified that the same and the articles therein described in the indictment were the property' of Lillian B. Anthony.</p> <p>Defendant introduced as a witness one Ball, who was an employee in the baggage room at the time named, and asked him v. “What was defendant’s condition at that time, drunk or sober ?” Witness was not permitted to answer, the court again stating that “it makes no difference if he was drunk.”</p> <p>Defendant, on his own behalf, testified that he came to Washington from Portsmouth, Virginia, December 24, 1904; that nearly thirty-five years ago he had been employed on the Southern Railway as machinist and engineer; that he applied for a pass, to W. T. Lawton in the railway offices, in the name of John Ryan; that Lawton called to a clerk to issue the same;, that it was written, signed by Lawton, and delivered to the defendant ; that when about to leave the office he noticed that the-name written was Riley; that he mentioned the error to Lawton,, who said he did not vrant the trouble of canceling the pass, and told him to sign the name on the back as written; that while in the office he fell in with a number of engineers who were getting-passes for the Christmas holidays, and, walking down Pennsylvania avenue, they stopped at several saloons; that he first drank. beer but changed to whisky; that, not finding his trunks at the station, he went across the street and stopped in a saloon; that when his trunks arrived he treated the drayman and his assistant; that he continued to drink and missed his overcoat; that he went to the baggage room to look for it and remembered having been put out; that he remembered having trunks checked,, but not the number; that he did not know what train he left on, but some of his companions put him on board; that he had not drunk before for nearly twenty years; that he did not remember what became of his overcoat; had never found it; that he did not know how many checks he had and paid no attention to them until he got to Memphis; that he was very sick and stopped at Greens-borough and Salisbury, and spent a day and night in Memphis,, arriving in Dallas on Friday before New Years; that he did not see the trunks in Memphis but exchanged cheeks there; that on arrival at Dallas he gave his checks to a drayman, and on the next day found four trunks in his room at the hotel; that he found that one of his keys would open one of the strange trunks; that he did not know the owner, and, believing he was far away from the owner, gave no consideration to the matter of returning the trunk; that he was “broke,” having but $2 left, and was trying to get to Los Angeles where he had been promised work; that he had not then succeeded in obtaining railway passes, and decided to try and dispose of some of the articles in the trunk to raise money to go west; that he admits he did wrong', but did not sell anything, and only made an offer to one person; that on Tuesday morning he obtained a pass to El Faso, and, being then offered $30 for the seal-skin coat, said he would not take $1,000 for it now; that he was arrested on the same day; “that he lied to the officers about the trunk and his actions in Dallas.”</p> <p>On cross-examination he said that he did not know what the four checks were for; that he paid $1 to have his baggage transferred in Memphis, exchanging checks for checks. The bill of exceptions records that he contradicted himself several times as regards putting- the trunks in the baggage car at Washington, and as to several occurrences on the way. He said that he did .not remember when he last saw his wife, and that she had not been with him in Washington. The defendant was asked if he .had not called upon Dr. Stafford, rector of St. Patrick’s Church, Washington, on the morning of December 24, 1904. ' Objection being overruled, he said he did not remember having called upon Dr. Stafford, and said he had not been to any church that morning. He was then asked if he did not present to Dr. Stafford a letter purporting to have been signed by Archbishop Byan, stating in effect that defendant was his brother, and asking financial assistance for him. Objection having been made and again overruled, he said that he did not remember going to see Dr. Stafford, “but, in answer to further questions, admitted having a letter such as described, and admitted that the same was not genuine, and that he was not a relative of Archbishop ■Byan.” To each and every one of the questions on this point the defendant objected on the ground that “the matter was absolutely irrelevant and had no bearing upon the case, was immaterial to the issue, and conld only tend to prejudice the defendant.”</p> <p>Exceptions were duly reserved in all instances where objections had been made and overruled.</p> <p>In rebuttal, the government introduced W. T. Lawson, who testified that he issued the pass to the defendant in the name of ■John Biley, and denied that defendant had called his attention to any error in the name. On behalf of the defendant two special requests for instructions to the jury wore denied. These were, substantially, that, if the jury have a reasonable donbt as to whether defendant was too drunk when he checked the trunk to entertain a specific intent to steal the same, they must find Mm not guilty.</p>

<p>Hearing on an appeal by tbe libellant from a decree of tbe Supreme Court of tbe District of Columbia sitting as a United States District Court in an admiralty proceeding to recover for-salvage services.</p> <p>Tbe facts are sufficiently stated in tbe opinion.</p>

Hearing- on an appeal by tbe complainants from a decree of the Supreme Court of tbe District of Columbia dismissing a bill in equity in a suit to vacate certain deeds of real estate. Tbe Court in the.opinion stated tbe facts as follows: This is a proceeding in equity to vacate two deeds, one a ■deed of trust by way of mortgage, and the other a deed of conveyance in fee simple, on the ground of alleged mental in■capacity on tbe part of the principal grantor in tbe two deeds.

Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia sustaining a demurrer of one of two defendants and dismissing a bill in equity for an injunction and for other relief.

<p>Trademarks; Appeals; Amendments; Pending Applications.</p> <p>1. Were a party whose application for a trademark under the trademark act of Congress of March 3, 1881, was rejected, sought, more than two years afterwards, to amend his application under sections 14 and 24 of the act of Congress of February 20, 1905, so as to bring it under the provisions of the new law, but the Commissioner, on appeal from the Examiner of Trademarks, while in form dismissing the appeal on the ground that relief should be sought by petition, and not by appeal, nevertheless took jurisdiction, and held that the application was not pending within the meaning of the act of 1905, it was he' l, on an appeal from his decision to this court, that he had virtually refused registration, and that his decision was appealable.</p> <p>2. In the absence of any clear intent on the part of the legislature to give a special meaning to a word contained in a statute, the ordinary meaning should be given to it.</p> <p>3. An application for registration of a trademark filed under the trademark act of Congress of March 3, 1881, and which stood at the date when the new trademark act of February 20, 1905, wTent into effect, rejected by the Commissioner of Patents upon an appeal duly taken to him,—the decision of the Commissioner having been made more than two years before,—is not a “pending” application within the meaning of that section of the latter act providing that, under certain circumstances “pending,” applications might be proceeded with under its provisions.</p>

<p>In error to the Police Court of the District of Columbia.</p> <p>The Court in the opinion stated the case as follows:</p> <p>An information presented in the police court charged the plaintiff in error, Harry G. Wilson, with engaging in the business of a contractor in the District of Columbia, “to wit, the business of a contracting bricklayer in constructing buildings, and other structures,” without first having obtained a license so to do, and paying the license tax therefor, etc.</p> <p>The case was submitted to the court upon the following agreed statement of facts:</p> <p>“The defendant, Harry G. Wilson, is a bricklayer by trade; that his business is to make contracts with builders and general contractors to lay part, or all, of the bricks required in any work undertaken by a builder or general contractor, either at a stated amount per thousand, or for a stated price as to the entire number of bricks to be laid; that the defendant makes no contracts with the owner of the work, but always contracts with the builder or general contractor of the owner; that the defendant maintains no regular force of bricklayers, but employs one or more bricklayers to help him as the number of the bricks to be laid may require; that, in the prosecution of the work of laying the bricks, the defendant and those employed by him are at all times subject to the direction, and under the control, of the builder or general contractor.”</p> <p>A judgment of conviction was rendered, followed by fine, and a writ of error has been regularly allowed.</p>

. Hearing on an appeal (specially allowed) from a decree pro confesso of the Supreme Court.of the District of Columbia against a nonresident defendant, after service upon him by publication, which order he had previously moved to vacate on the ground that the court was without jurisdiction to make it.

<p>Hearing on a motion by tbe appellee to strike a bill of exceptions from the record and to affirm the judgment of the lower court.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by defendant from a judgment and sentence of conviction of the Supreme Court of the District of Columbia holding a criminal court, entered upon a verdict finding the defendant guilty of perjury.</p> <p>The Court in the opinion stated the case as follows:</p> <p>The appellant, Stephen U. G. Johnson, has been adjudged guilty in the supreme court of the District of the crime of perjury, and sentenced to imprisonment in jail-for the period of eleven months and twenty-nine days.</p> <p>The indictment charged that, desiring an appointment as letter carrier in the postoffice of the city of Washington, the said Johnson, as required by law and the regulations of the Civil Service Commission, made an application to said commission for examination and entry upon the list of persons eligible for appointment to said position; that upon the form of application so required he wrote his answers to certain questions propounded therein, and subscribed the same, and made oath of the truth of his said answers before one Joseph R. Dague, a notary public for the District of Columbia; that a material fact to be disclosed in said application was whether the applicant had ever been employed in the civil service of the government of the United States, and separated therefrom, and if so, whether he had resigned or been discharged therefrom; that to the questions whether the applicant had been separated from the government civil service, and whether he had resigned or had been discharged, he answered “No;” that said statement was knowingly and wilfully false, because the applicant had, in fact, been in the government civil service, and had been separated therefrom through discharge. A demurrer to the indictment was overruled and the case was tried before a jury resulting in a verdict of guilty. The defendant then filed a motion in arrest of judgment on the following grounds:</p> <p>1. That the indictment does not charge an offense under the laws of the United States. 2. That the indictment charges violation of a pretended rule of the Civil Service Commission, and not a law of the United States. 3. That there is no rule of the Civil Service Commission, promulgated by the President of the United States, which required the defendant to answer the particular questions set out in the indictment. This motion was overruled, and from the judgment entered on the verdict, and imposing sentence, the defendant has prosecuted this appeal.</p>

<p>Police Regulations; Discharge or Firearms.</p> <p>1. Section 5 of the police regulations of this District, prohibiting the discharge of firearms in the District without a special permit therefor from the superintendent of police, is not invalid as an attempt to delegate legislative powers to the superintendent, but is a reasonable exercise of the right of municipal authorities to delegate their administrative function to regulate and prohibit, such acts, to the municipal agent whose particular duty it is to look after the public safety.</p> <p>2. That the discretion committed to the superintendent of police by section 5 of the police regulations of this District, in respect to granting permits to discharge firearms in the District under .certain conditions, may be arbitrarily exercised, does not render the regulation unreasonable and therefore invalid. (Following Barnes v. District of Columbia, 24 App. D. C. 459.)</p>

Hearing on an appeal by tbe United States from an order of tbe Supreme Court of tbe District of Columbia sustaining a motion to arrest a judgment upon a verdict in a prosecution for tbe alleged violation of section 5479, U. S. Eev. Stat. Tbe facts are sufficiently stated in tbe opinion.

<p>Hearing on an appeal by tbe petitioners from a judgment of the Supreme Court of the District of Columbia dismissing a petition for the writ of certiorari.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by the petitioner from a judgment of the Supreme Court of the District of Columbia dismissing a petition for a writ of certiorari.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal (specially allowed) by a garnishee from an order of the Supreme Court of the District of Columbia, at law, requiring it to answer certain interrogatories.

Hearing on an appeal by the defendant from a judgment of tbe Supreme Court of the District of Columbia entered under the 73d rule of that court for want of a sufficient affidavit of defense. The Court in the opinion stated the case as follows: This is an appeal from a judgment entered in. an action of assumpsit under the 73 d rule of the supreme court of the District of Columbia.

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

<p>Hearing on an appeal by tbe defendant from a judgment of the Supreme Court of the District of Columbia upon a verdict of a jury, in an. action against a fraternal benefit association upon a benefit certificate issued by it.</p> <p>The Court in the opinion stated the case as follows:</p> <p>This appeal is by the defendant, the Supreme Commandery of the United Order of the Golden Cross of the World from a verdict against it by a jury in a suit at law on a benefit certificate issued by it to Joseph Trainor, a member of Halcyon Commandery, a local lodge of the appellant, made payable on its face to Catharine W. Trainor, his wife, and now claimed by the appellees, Hichard and Alfred D. Bernard, as his executors, who are also the assignees of the executor and of the next of kin of Catharine W. Trainor.</p> <p>One of the objects of the order, as disclosed by the record, was to establish a benefit fund from which an agreed sum was to be paid on the death of a beneficiary member of the order who had complied with all the lawful requirements, to the beneficiary’s family, or to be disposed of as such beneficiary might direct. The certificate was issued in January, 1890, and all of the monthly assessments were paid by the beneficiary down to the one due November 1,1902, which was payable within thirty days thereafter. Trainor, failing to make this payment, became disconnected from the order, but with the right to reinstatement within thirty days after such disconnection by the simple payment of the assessment and such fine as the commandery might by by-laws provide. Before such payment, and on December 2, 1902, Trainor died. His executors, on December 19, 1902, tendered the proper officer the sum of $6.60, the amount due for the November and December assessments, but appellant’s officer refused to receive the same.</p> <p>The record further discloses that Trainor’s wife, the beneficiary named in the original certificate, died some time prior to the 13th day of November, 1900, and that Trainor surrendered the benefit certificate and directed that a new certificate be issued to him, naming as beneficiary his late wife’s brother, J. Marion Duncan, who was stated to be the executor of his last will and testament. The appellant neglected or refused to comply with Trainor’s request, and no change was made in the certificate. It appears, however, that Trainor, in February, 1901, duly executed a will, which was, after his death, duly admitted to probate, wherein he named the appellees as his executors. Trainor also left a letter of instructions to his executors directing them what disposition to make of the proceeds of the benefit certificate in question. The executor of his wife’s will duly assigned any right that he might have as such executor in the said benefit certificate, and an assignment of a like interest was made by the next of kin of said deceased wife in and to the proceeds of, said benefit certificate.</p> <p>To the amended declaration a demurrer was filed, and, being overruled, exception was noted and six pleas interposed, to which issue was joined.</p> <p>Upon the trial of the case, the facts above set forth were shown, and, in addition thereto, it appeared from the testimony of James S. Sharpe, who testified that he was a member of Halcyon Commandery, of Washington, D. C., and the United Order of the Golden Cross, that one W. S. Stetson was the keeper of records of Halcyon Commandery at the time of Joseph Trainor’s death, and that he was then dead. He identified the signature of Stetson on the benefit certificate; also on the reverse side in the alleged application for change of beneficiary, and a letter dated December 19, 1902, written to the plaintiffs.</p> <p>It also appeared from his testimony that Trainor frequently failed to pay his assessments until after he was disconnected, and that he never made formal application for reinstatement or passed a medical examination, these not being required by the by-laws, but he was reinstated by simply paying the assessment. At the close of the testimony, the court submitted the case to the jury, having refused defendant’s prayers and granted those submitted by plaintiffs. The jury returned a verdict for the amount of the certificate less the November and December assessments.</p>

Hearing- on an appeal by the defendants from a judgment of the Supreme Court of the District of Columbia upon the verdict of a jury in an action against a husband and his wife. Reversed. The Court in the opinion stated the case as follows: This is an action of assumpsit begun by James W. Martin against Henry H. Rheam and his wife, Julia A. Rheam, to recover the sum of $355 for work done and materials furnished in the erection of a house for the defendants.

Hearing on an appeal by the defendants from a judgment of the Supreme Court of the District of Columbia entered on a demurrer to defendants’ plea, in an action on a bond.

<p>Hearing on appeal by one of several defendants from a judgment of the Supreme Court of the District of Columbia entered upon demurrer to the defendants’ pleas, appellant having elected to stand thereon.</p> <p>The facts are sufficiently stated in opinion.</p>

<p>Wills; Devises and Bequests; Foreign Corporations; Comity; Equity; Conversion.</p> <p>1. A bequest of $5,000 for the erection of a monument over the grave of the husband of the testatrix in a designated cemetery will not be declared void merely because the amount of the bequest is greater than is ordinarily expended for such purpose by those in the same station of life as the testatrix.</p> <p>2. At common law, bequests for the care of burial lots are void as creating perpetuities, such uses not being charitable.</p> <p>3. While the laws of the testator’s domicil govern as to the formal requisites essential to the validity of his will, the capacity of the testator, the construction of the instrument, and the validity of its particular bequests depend, unless expressly prohibited by the law of the testator’s domicil, upon the law of the domicil of the legatee.</p> <p>4. The rule of comity permitting foreign corporations to acquire and hold lands by devise is now generally recognized, provided their charters permit them to do so, and no prohibition is found in the laws or public policy of the domestic state.</p> <p>5. An express direction in a will that the testator’s real estate shall be sold on the death of life tenants, and the income of the proceeds used for a given purpose, operates to convert the property into personalty from the death of the testator.</p> <p>6. Where a testatrix, domiciled in this District, devised real estate situated here to a New York cemetery company in trust for her brother and sister during their lives, provided they kept tbe property in repair and- paid the taxes, and at their death, or upon their failure to comply with the condition named, the property was to be sold and the proceeds invested in securities, the income therefrom to be used to keep a cemetery lot in New York in good order; and the New York law, like the law of this District (D. C. Code, sec. 669 [31 Stat. at L. 1295, chap. 854] ), provided that corporations incorporated under its laws might take and hold real estate and personal property, and use the income thereof for the care of cemetery lots, monuments, etc.,—it was held that such trust was valid, upon the principle of comity, which in such cases should be more broadly recognized in this District than elsewhere.</p> <p>7. In a suit involving the validity of a devise of real estate in this District, in trust to a foreign cemetery association, the questions whether the association had power, under its charter, to act as trustee in this District for property located here, and had power to convert the real estate into personalty, were not considered, for the reason that equity would not allow the trust to fail for want of a trustee, but could, if necessary, appoint a trustee to carry it into effect.</p>

Hearing on an appeal by tbe complainant from a decree of tbe Supreme Court of tbe District of Columbia, dismissing a bill in equity to subject an equitable interest of tbe defendant in certain land to tbe satisfaction of a judgment. The facts are sufficiently stated in tbe opinion.

Motion by the appellee for payment of her counsel fees and expenses of printing brief in a divorce proceeding. The facts are sufficiently stated in the opinion.

<p>Hearing on an appeal'by the defendant from a. judgment of the Supreme Court of the District of Columbia entered under the 73d rule of that court for insufficiency of an affidavit of defense.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Appellate Practice; Divorce; Allowance op Counsel Fees, etc., Pending Appeal.</p> <p>1. Pending an appeal by a wife in a divorce proceeding, and after the transcript of the record on appeal has been filed, this eourt has power to order the husband, the appellant, to pay a sum of money to enable the wife to pay counsel fees on her appeal. (See also Morgan v. MorgaM, 25 App. D. C. 389; and Bernsdorff v. Bernsdorff, ante, 228.)</p> <p>2. The power of the appellate eourt to order the husband to pay the wife counsel fees on appeal will not be exercised unless the application for the order is supported by proof tending to show that the applicant is in a destitute or needy condition, and that there exists a good reason why the relief could not be obtained in the trial eourt.</p> <p>3. In a divorce proceeding praying for a legal separation, where the husband, who was ordered to pay alimony pendente lite and counsel fees, was adjudged in contempt for the nonpayment thereof, from which order .he appealed, an application by the wife to this court, after the transcript of the record has been filed, to compel the payment of a sum of money to enable her to pay counsel fees on her appeal, supported by an affidavit that she was ip a destitute condition, and that the appellant was in receipt of a salary of $100 per month, was held to state sufficient reasons for the granting of such application.</p>

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

Hearing on motions and counter motions by tbe appellant and the appellee in an appeal from a judgment of conviction .and sentence of tbe Supreme Court of tbe District of Columbia, in a proceeding for criminal libel. ¡The facts are sufficiently stated in tbe opinion.

<p>Libel; Damages; Evidence; Mental Suffering; Charge to Juey.</p> <p>1. Mental suffering shown to be the natural and direct result of defamatory words spoken, or published in writing, or printed, constitutes an element of recoverable damages.</p> <p>2. A newspaper publication is actionable per se where it contains charges tending to bring another into contempt, ridicule, or disgrace, whether it amounts to a charge of a criminal offense or not (following Washington Gaslight Go. v. Lansden, 9 App. D. C. 508) ; and where it does not appear that such statements or charges are true, or have been justifiably made, malice must be presumed (following Bailey v. Holland, 7 App. D. G. 184).</p> <p>3. Where published words are libelous per se, the person libeled is entitled to recover general damages for injury to his feelings and the mental suffering endured as a natural result of the publication. (Following Norfolk é W. S. B. Go. v. Davis, 12 App. D. C. 306.)</p> <p>4. A charge to the jury in a libel ease, which permitted the jury, in assessing the damages sustained by the plaintiff, to include such as she may have sustained in her occupation and calling as a laundress, was not' erroneous, although the evidence did not show that the plaintiff lost her employment, or had been deprived of her wages to any specified amount, where she testified that she was not able to work as before, and that she had to obtain help in her work on account of her weakened condition.</p> <p>5. In.an action for libel, testimony of the plaintiff to the effect that she had no parents living is admissible in order that the jury may be put into a situation to consider whether the plaintiff’s mental suffering might not have been more poignant as well as certain in view of her being a single woman without parents to sustain and comfort her when charged with disgraceful conduct.</p> <p>6. Testimony in a libel suit that the plaintiff was dependent upon her own exertions is admissible, when offered not for the purpose of showing poverty in order to ask for increased damages, but as relevant to the charge that impaired capacity to labor was an item of the actual damages resulting from the injury, and also as tending to show that reasonable apprehension of loss of employment might have contributed in some degree to the mental suffering.</p> <p>7. Quasre, Whether in a libel suit the poverty as well as the social condition of the plaintiff may be proved, on the ground that the injurious consequences of the libel may readily be greater in some conditions than in others.</p> <p>8. A party to a suit who fears that certain evidence of his adversary, admitted for a specific purpose only, may he considered by the jury for another purpose, ought to ask a special instruction to that effect.</p>

<p>Hearing on a motion by the appellee to dismiss an appeal for failure to issue or serve a citation.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal by one of several defendants froin the judgment of the Supreme Court of the District^w Columbia upon a verdict of a jury in an action against such defendants as members of a voluntary association conducting a banking business, to recover the amount of a deposit by the plaintiff in such association.

Hearing on an appeal by the defendants from a judgment of the Supreme Court of the District of Columbia upon a verdict of a jury in an action for an'alleged unlawful levy upon property owned by the plaintiff.

<p>Wills; Life Tenancy in Money; Executors and Administrators.</p> <p>Where there is a bequest of money to a tenant for life, with remainder over, the principal should not be paid to the tenant for life, unless the language of the will shows with reasonable certainty that the testator intended it should be delivered into his possession. It is the duty of the executor to invest the money, and pay the interest, only, to the life tenant, preserving the principal for the remainder-men.</p>

<p>Hearing on an appeal by tbe relator from a judgment of the Supreme Court of the District of Columbia dismissing his petition for a writ of mandamus against the Secretary of the Interior.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from an order of the supreme court of the District of Columbia, denying a writ of mandamus to require the Secretary of the Interior to approve the selection by the relator, Willis C. West, of 160 acres of land in the Witchita reservation, in the territory of Oklahoma, under an act of Congress of March 2, 1895. The case was heard in the court below on issue joined on a plea interposed by the relator, the appellant here, to the answer of the appellee, the Secretary of the Interior, to the petition of the relator.</p> <p>It appears that on August 5, 1901, the relator, claiming to be an adopted member of the Wichita Indian tribe, filed his petition in the supreme court of the District of Columbia, and rule to show cause followed.</p> <p>In response, a demurrer to the petition was interposed, which, by an order entered August 27, 1901, was sustained, the rule to show cause was discharged, and the petition dismissed. Upon appeal that order was reversed by this court, and the cause remanded “for further proceeding’s therein according to law.”</p> <p>The defendant below filed his answer to the petition, wherein, among other things, after reciting the duty laid upon him, as Secretary of the Interior, in the premises, he averred that, being without knowledge of relator’s status at the time of his application for allotment, defendant, as such Secretary, examined and considered relator’s application and all the evidence and proofs presented to him to support it, including all the matters now set forth in the petition, together with such other evidence and proofs bearing thereon as were embodied in the public records and files of the Indian Bureau and Department of the Interior, and that, upon full consideration thereof, the defendant, as Secretary of the Interior, did, on the 3d day of July, 1901, reach and announce a conclusion and decision that relator was not, by nativity or adoption, a member of the Witchita and affiliated bands of Indians, and for that reason was not entitled to an allotment, and thereupon denied relator’s application.</p> <p>The relator filed motion for the issuance of the peremptory writ, and later a demurrer, which were successively overruled.</p> <p>Belator thereafter filed his several pleas (four in number) to which defendant demurred, the demurrer being overruled as to the first plea and sustained as to the others; and on the first plea, as follows, issue was joined: “The relator says that the defend-</p> <p>ant, as Secretary of the Interior, did not, by the decision alleged in the answer to have been made by him on July 3, 1901, decide that the relator was not by nativity or adoption a member of the Wichita or affiliated band of Indians, and for that reason deny him the said allotment.”</p> <p>Upon this issue the cause was tried by the court, to maintain which issue, on his part, relator offered in evidence a duly certified copy of the Secretary’s said decision of July 3, 1901, and defendant, on his part, offered in evidence official exemplifications of the correspondence, decisions, regulations, etc., alleged to be the ones referred to in his answer, as well as of the decision, of July 3, 1901. To all save the last mentioned of defendant’s evidence relator objected, and saved his exceptions to their admission.</p> <p>Upon all the evidence the court found generally for the defendant, and specially that he did reach and announce a conclusion and decision that relator was not, by nativity or adoption, a member of the Wichita and affiliated bands of Indians, therefore not entitled to an allotment, and thereupon denied relator’s application for allotment, and that the defendant, as Secretary of the Interior, disapproved relator’s application for membership by adoption in the Wichita Indian tribe. Relator’s prayer for the issuance of the peremptory writ was denied, the rule to show cause discharged, and the petition dismissed.</p>

Hearing on an appeal by the petitioners from an order of tbe Supreme Court of tbe District of Columbia dismissing a petition for tbe writ of mandamus. Tbe Court in tbe opinion stated tbe facts as follows: This is an appeal from a judgment dismissing a petition for mandamus filed against Henry C. Payne, as Postmaster General of tbe United States, by tbe mayor of, and by certain citizens residing in, tbe town of Las Yegas, New Mexico.

Hearing on an appeal by tbe defendant from a judgment of conviction of arson by tbe Supreme Court of tbe District of Columbia, and upon a motion for rebearing. Tbe facts are sufficiently stated in tbe opinion.

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

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

Hearing on an appeal by the applicant from, a decision of the Commissioner of Patents refusing to allow certain claims in an application for a patent. The facts are sufficiently stated in the opinion.

Hearing on an appeal by tbe applicant from a decision of the Commissioner of Patents refusing to allow certain claims in an application for a patent. The facts are sufficiently stated in the opinion.

<p>Patents; Designs; Rules of Patent Office; Rule in Cases of Doubt as to Patentability; Slight Peculiarities in Design; Identity of Design; Design Act Construed.</p> <p>1. In an application for a design patent for a font of type it is sufficient to furnish the conventional drawing accepted for years by the Patent Office, and it is not necessary, under the Patent Office rules relating to designs, to show or describe the type themselves.</p> <p>2. If there is a serious doubt as to patentability, that doubt should be resolved in favor of the applicant, for, if his claim be denied, he has nothing with which he can go into court and attempt to enforce a lawful monopoly; but, in reversing the concurrent decisions of the Patent Office, there should be conviction beyond a reasonable doubt that, in the absence of anything outside of the record, the patent granted on the application would be held to be a valid one.</p> <p>3. Where the peculiarities of an applicant’s design do not rise to the dignity of invention the design is not patentable, although the peculiarities are such as to prevent the design from being regarded in the trade as a substitute for a design already patented.</p> <p>4. The novelty of a design is to be determined by the comparative appearance of the designs to the eyes of average observers, and not to the eyes of experts.</p> <p>5. In order to decide that a design is unpatentable, it is not necessary to find that it infringes an earlier one, for, to entitle an applicant to the benefit of the design act, there must be an exercise of the inventive faculty.</p> <p>6. In a font of type, the addition of an old waved outline to common forms of letters does not amount to invention.</p> <p>7. The patentability of- a design does not depend on its esthetic value. The design act, as construed by the courts, intends that the patent-ability of a design shall be determined by its appeal to the eyes of the-ordinary man, and not to the eyes of a jury of artists.</p>

<p>'Patents; Interference; Abandonment op Invention; Reduction to Practice.</p> <p>1. An applicant in interference must prove priority beyond a reasonable doubt.</p> <p>2. An inventor who has reduced his invention to practice is entitled to a period of two years in which to put the same in public use and on sale, without a forfeiture of his right to receive a patent, based upon an application filed by another before the statutory bar has arisen. Neither forfeiture nor abandonment within that period can be presumed, but must be proved. (Following McBerty v. Cook, 16 App. H. C. 133; distinguishing Mason v. Hepburn, 13 App. D. 0. 86; Warner V. Smith, 13 App. D. 0. 111.)</p> <p>3. The diligence required of an inventor is diligence rather in the reduction of his invention to practice, than in application to the Patent Office, or in manufacturing his device for public use. (Following Oliver v. Felbel, 20 App. D. C. 255.)</p> <p>4. In the case of simple devices, it is not essential that actual tests of the invention be made in order to constitute a reduction to practice.</p> <p>5. A device for protecting low-tension circuits, such as telegraph, telephone, and fire-alarm, from injurious effects of unduly strong currents such as those carried by power and lighting circuits, belongs rather to the class of simple devices considered in Mason v. Hepburn, supra, and in Roe v. Hanson, 19 App. D. 0. 559, than to the devices disclosed in Macdonald v. Edison, 21 App. D. C. 527.</p> <p>6. 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. (Following Gallagher v. Hien, 25 App. D. C. 77.)</p> <p>7. In order to reduce to practice a device for protecting low-tension telephone circuits from the injurious effects of unduly strong currents, it is sufficient to operate the device with currents such as would prevail in telephone circuits if the latter became crossed with wires carrying more current than is safe; and it is not necessary actually to operate it in a telephone circuit.</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 from a decision of the Commissioner of Patents in an interference case. The facts are sufficiently stated in the opinion.

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

<p>Patents; Lack of Invention.</p> <p>In view of the state of the art relating to combined funnels and valves, and in view of a former patent which shows a reversible funnel in combination with a valve, the using the neck of a funnel as part of a plug valve to be opened by turning the funnel involves nothing more than the work of a skilled mechanic, and does not amount to invention.</p>

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

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

Hearing on an appeal by tbe defendant from a judgment and sentence of the Supreme Court of the District of Columbia upon a verdict finding him guilty of murder in the first degree. 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.

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 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 rejecting an application for a patent. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the defendant from a judgment of conviction by the Supreme Court of the District of Columbia in a prosecution for perjury. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the defendant from a judgment of conviction by the Supreme Court of the District of Columbia in a prosecution for receiving embezzled property. The Court in the opinion stated the facts as follows: The appellant, Samuel G-assenheimer, was indicted and found guilty of the crime of receiving embezzled goods, knowing them to have been embezzled.

Hearing on an appeal (specially allowed by tbe defendant from an order of tbe Supreme Court of tbe District of Columbia sustaining a demurrer to bis plea of tbe statute of limitations, in an action on a foreign judgment. Tbe. facts are sufficiently stated in tbe opinion.

Hearing on an appeal by tbe defendant from a judgment of conviction of the Supreme Court of tbe District of Columbia in a prosecution for being concerned as agent of a policy lottery. Tbe facts are sufficiently stated in tbe opinion.

Hearing on an appeal by tbe petitioner from an order of tbe Supreme Court of the District of Columbia dismissing bis petition for tbe writ of mandamus. Tbe facts are sufficiently stated in tbe opinion.

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia in an action for personal injuries. Tbe facts are sufficiently stated in tbe opinion.

Hearing on an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia in favor of tbe defendant in an action for personal injuries. Tbe Court in tbe opinion stated tbe facts as follows: Tbis action was brought by James H. Clements, by bis father as next friend, against the Potomac Electric Power Company; for personal injuries sustained September 11, 1902.

Hearing on an appeal by tlie plaintiff from a judgment of the Supreme Court of the District of Columbia in favor of the defendant, a verdict for the defendant having been directed by the court, in an action for personal injuries. The Court in the opinion stated the facts as follows: This action was brought by Wilson McD.

Hearing on an appeal by the exceptants from a decree of the 'Supreme Court of the District of Columbia overruling their exceptions to, and confirming, a report of the auditor. 'The facts aTe sufficiently stated in the opinion.

Hearing on an appeal by tbe defendant from a decree of tbe Supreme Court of the District of Columbia, in a suit by a wife against her husband for maintenance and support, and on a motion by the appellee for an allowance for attorney’s fees.

Hearing on an appeal by tbe accused in a homicide case, from a judgment of the Supreme Court of the District of Columbia, upon the verdict of jury finding him guilty of murder in the first degree. The facts are sufficiently stated in the opinion.

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

The Court in the opinion stated the facts as follows: An information in the police court charged that Samuel Gassenheimer, on August 24, 1905, in the District of Columbia, on Pennsylvania avenue northwest, being the owner of a certain licensed hack, did then and there, and on divers other dates since the date aforesaid, cause the same to occupy a stand, while unemployed, other than one designated by the commissioners of the District as a public hack stand.

Hearing on a special appeal from an order of the Supreme Court of the District of Columbia denying a motion to vacate an order for the service of a subpoena.

Hearing oh an appeal by the defendant from a decree of the Supreme Court of the District of Columbia in a suit for partition; and on a motion by the appellee to recall the mandate and for leave to file an additional transcript. The facts are sufficiently stated in the opinion.

Hearing on an appeal (specially allowed) by the United States from an order of the Supreme Court of the District of Columbia sustaining a demurrer to a declaration in a suit by the United States to recover a penalty for the violation of the act of Congress of March 2, 1893, as amended.

Hearing on an appeal by tbe defendants from a judgment of conviction of the Supreme Court of tbe District of Columbia in a prosecution under U. S. Rev. Stat. sec. 5440, for conspiracy to commit an offense against tbe United States. Tbe facts are sufficiently stated in tbe opinion.