Volume 27 — Appeals, District of Columbia

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.

'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 from a decision of the Commissioner of Patents requiring an applicant to divide -a process and an apparatus claim. 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 from a decision of tbe 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 proceeding. 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.

<p>Hearing on an appeal from a decision of tbe Commissioner of Patents granting a motion to quash an opposition to the registration of a trademark.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing oh an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia in an action to recover damages for personal injuries.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal taken from a judgment of the supreme court of the District of Columbia, entered, by direction of the trial court at the close of the plaintiff’s evidence, in favor of the defendant.</p> <p>The appellant, Lawrence W. Sherwood, a machinist in the employ of a firm engaged in the elevator and machine business, was sent by his employers to the “Leamington fiats” to repair the elevator therein. This building was owned by appellee, Brainard H. Warner. Appellant took with him as assistants a helper and an apprentice boy. The elevator was so disabled that it was out of service, and they worked until evening, when they were ready to lift up the piston, which they considered had traveled too far down and was stuck in the rust and corrosion at the bottom of the cylinder. Not being able to move it, the apprentice was directed by appellant to get further help. He went out to a neighboring apartment house and brought back with him some men. The apprentice and three others pulled on the fall, with the result that the piston came up and appellant’s arm was caught between the sheave, or wheel, and the ropes. Appellant tried in various ways to release his arm. Failing to do so, the apprentice was sent by appellant to go down and get someone to put the pressure on. The witnesses differ as to whether any particular person was designated. He found the janitor, Conn, and the elevator boy in the basement. Conn and the apprentice went upstairs, the elevator being about one landing from the top floor. He told the janitor that he wanted the car run up to relieve appellant. Finally he went up above the elevator and leaned over and caught hold of the top of the car. The witness further says: “I wanted to help him by pulling up on the roof of the car, and told him to get in the car and run the car up the hole. * * * Mr. Conn got in the car and I laid down on the floor on my stomach and leaned over the well, and caught hold of the grill work in the car. I tried to surge it with my weight on it. Conn moved the wheel, and I said, Mump now.’ He jumped, but the car would not move after he had turned the wheel, and before I thought anything else the car went down the other way, and was pulled out of my hand and went down the hole. I went out in the hallway and saw Sherwood coming out with his arm torn off.”</p> <p>Appellant, who had been working in the elevator business for thirteen years, testified that he knew he was doing a dangerous thing when he got in the cylinder shaft, and that there was danger of his getting hurt, and that he took the risk. Conn, the janitor, testified that he was the superintendent of the building, and that he ran the elevator in the absence of the regular operator, although he was not instructed to do so. The testimony further discloses that the elevator could not be, and was not while-they were working on the repairs, operated for the carriage of passengers. There was no testimony offered that appellee was to furnish any help, or to have any control over the force engaged in making the repairs. It is not disputed that Conn was in the general employ of appellee. The testimony clearly discloses that the repairs were made under the direction of the appellant, and that everything done to release him was directed by him or by his fellow workman, the apprentice. The appellee is not shown to have had any personal knowledge of how the repairs were being made, nor of what Conn did in trying to release appellant.</p>

Heading on. an appeal by the complainant from a decree of the Supreme Court of the District of Columbia dismissing a bill to establish their right to a patent The facts are sufficiently stated in the opinion.

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

<p>Criminal Law; Cumulative Sentences; Police Court.</p> <p>1. A prisoner under an excessive sentence cannot be discharged on habeas corpus until he’has performed so much of the judgment, or served so much of the sentence, as it was within the power of the court to impose.</p> <p>2. The provision of section 934, D. C. Code [31 Stat. at L. 1341, chap. 854], relating to cumulative sentences, has no reference to a sentence to pay a pecuniary fine, followed by imprisonment in default of payment, but only to cases in which the punishment is to be imprisonment, j Citing United States v. Mills, 11 App. D. C. 506, and Bowles v. District of Columbia, 22 App. L. C. 328.)</p> <p>3. Sentences in criminal cases are not cumulative merely because imprisonment under the second is made to commence upon the termination of the imprisonment under the first, where the prisoner is convicted upon two separate informations, or indicted for different offenses.</p> <p>4. Where a jail prisoner was discharged on habeas corpus on the ground that the sentence under which he was imprisoned was void, and, pending an appeal by the warden of the jail, the sentence expired, this court dismissed the appeal, although holding that the lower court erred in its ruling. (Following United States v. Mills, 11 App. D. C. 510.)</p> <p>5. Qucere, Whether the police court, which has discretionary power to suspend judgment and statutory power to extend its term, has power to withhold sentence during a long and indefinite period extending beyond the term,</p> <p>6. Where no reason appears of record in a given case why the sentence of the police court was suspended, it will be presumed by this court that there was good cause therefor.</p> <p>7. Qucere, Whether there are limitations upon the right of the police court to suspend sentence beyond the current term or succeeding term and, if so, what such limitations are.</p>

<p>Criminal Law; Cumulative Sentences; Police Coubt.</p> <p>1. Successive sentences — that is, one to commence on the expiration of another for distinct offenses — are not cumulative sentences. (Following Harris v. Lang, ante, 84.)</p> <p>2. The expression “from day to day,” in section 50, D. C. Code [31 Stat. at L. 1198, chap. 854], providing that the police court shall hold a term on the first Monday of every month, and shall continue the same from day to day as long as may be necessary for the transaction of its business, suggests that it was not contemplated that the continued term would extend beyond the next term of the court; and it is doubtful whether the January term may be extended until November.</p> <p>3. The large powers of the court should not be used to legislate a different and. heavier penalty for criminal offenses than the law intended.</p> <p>4. The writ of habeas corpus cannot be made to serve as a writ of error or appeal to enable the appellate court to re-examine the judgment of the lower court; and, to warrant the discharge of a convicted prisoner upon the writ, the sentence upon which he is held must be, not merely erroneous, but absolutely void.</p> <p>5. The police court may suspend for the time being the execution of its judgment in a proper ease; and this court will make every reasonable presumption in favor of the propriety of its action. (Following Harris v. Lang, supra.)</p> <p>6. Where, on an appeal by the warden of the jail from an order of the lower court in a habeas corpus proceeding discharging the petitioners from jail on the ground that the sentences of the police court under which they were serving terms of imprisonment were void, this court reversed the lower court, and held that the petitioners had been discharged prematurely, and, it appearing that the terms of their imprisonment had not yet expired, the case was remanded for further proceedings. (Distinguishing Harris v. Lang, supra.).</p>

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

Hearing on an. appeal by tbe relator from an order of tbe Supreme Court of tbe District of Columbia overruling a demurrer by tbe petitioner to tbe answer of tbe respondent in a babeas corpus proceeding, and dismissing tbe petition.

<p>Patents; Interference; Priority; Disclosure; Diligence.</p> <p>1. When a party claims an invention, and also to have communicated the invention to another, who has applied mechanical work thereto, and put such invention into practice, claiming the same as his own, the communication, in order to be effectual, must be shown to have been full and clear as to all the essential elements of the invention, and such as was sufficient in itself to enable the party to whom the disclosure was made to give the invention practical form and effect without the exercise of invention on his part. (Following Sendelbaeh v. Gillette, 22 App. D. C. 174.)</p> <p>2. A junior applicant in interference, if he would prevail upon the ground that he disclosed the invention to his rival, who has received a patent, must prove such disclosure beyond a reasonable doubt.</p> <p>3. An inventor who was the first to conceive, but who, without adequate reason, delayed for a year to reduce to practice, and to file his application, which was not filed until six months after the issue of a patent to his rival, cannot be said to have exercised due diligence, and will not be awarded priority.</p>

<p>Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia in an action for personal injuries.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal by the plaintiffs from a judgment of the Supreme Court of the District of Columbia in an action ■of ejectment. The Court in the opinion stated the facts as follows: This is an action of ejectment brought by Thomas E. Young, on December 21, 1899, against the Norris Peters Company to recover an undivided third part of lot No. 34 in reservation B :in the city of Washington.

Hearing on an appeal by the complainants from a decree of the Supreme Court of the District of Columbia, construing a will. The Court in the opinion stated the facts as follows: The bill in this case was filed in the names of Katherine and Leicester B. Atkins, children and heirs at law of Kate Best Atkins, by their next friend, Joseph L. Atkins.

<p>Landowners; Dangerous Premises; Trespassers.</p> <p>1. There is no duty upon the part of a real-estate owner, upon whose land is an open and unfenced ¡pond, to keep his land safe for a trespasser, even when such trespasser is a boy ten years old.</p> <p>2. The primary duty to guard and protect a child against patent and unconcealed dangers devolves upon the parent, and not upon the owner of land upon which the child is trespassing.</p>

<p>Hearing on an appeal by the defendant from a judgment of tbe Supreme Court of the District of Columbia in an action of assumpsit</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal by the complainant from an order of the Supreme Court of the District of Columbia sustaining a demurrer to and dismissing a bill of review. The Court in the opinion stated the facts as follows: This appeal is taken from an order of the supreme court of the District of Columbia sustaining a demurrer to a bill of review and dismissing the same.

Hearing on an appeal by tbe defendant from an order of tbe Supreme Court of the District of Columbia adjudging him in contempt for refusing to obey an order for the payment of alimony.

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

Hearing on an appeal by tbe complainants from a decree of tbe Supreme Court of the District of Columbia dismissing their bill for an injunction, and on a motion for a rehearing.

Hearing on an appeal by the defendant from so much of a decree of the Supreme Court of the District of Columbia as denied a motion for a reference to ascertain damages. The Court in the opinion stated the facts as follows: This appeal is taken to review so much of a decree entered herein as denies appellant’s motion for a reference to ascertain the damages suffered by appellant, the Postmaster General, through the suing out of the injunction granted herein.

Hearing on an appeal by the defendant, the Postmaster General, from so much of a decree of the Supreme Court of the District of Columbia as denied a motion for a reference to ascertain damages.

<p>Ejectment: Adverse Possession; Statute of Limitations; Direction of Verdict by the Court.</p> <p>1. In an ejectment suit, where the defense is adverse possession for the statutory period, testimony offered by the plaintiff is inadmissible when to the effect that during such period the plaintiff, without knowledge of the defendant, secured a judgment for possession in a justice’s court, against the defendant’s tenant, who thereupon leased the premises from the plaintiff; but it does not appear that any rent was paid under such lease.</p> <p>2. Actual, exclusive, continuous, open, and adverse possession of land for the statutory period, by one claiming title, and by those under whom he claims, has the effect of creating in such claimant a good and sufficient title. (Following Reid v. Anderson, 13 App. D. C. 30.)</p> <p>3. Where, in an ejectment suit, the defendant meets the plaintiff’s prima facie case with a complete defense of adverse possession, which the plaintiff in no way contradicts, the trial court properly directs a verdict for the defendant.</p>

<p>Hearing on an appeal by the defendant from an order of the Supreme Court of the District of Columbia dismissing his appeal from a justice of the peace.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>It appears that heretofore the appellee, Thomas W. Buckley, brought suit before a justice of the peace to recover certain premises occupied by appellant, Albert Dowling, and located in the city of Washington, District of Columbia. Trial was bad and judgment rendered against appellant for possession and costs. From that judgment an appeal was noted to the supreme court of this District For the purpose of perfecting tbe appeal an undertaking, with one surety, was submitted to tbe justice, who approved and accepted it. Tbe record being transmitted to the supreme court, appellee moved that court to dismiss tbe appeal on tbe ground that tbe undertaking given on appeal was insufficient, and not in accordance with law because it was entered into by but one surety. The motion was granted, and an order entered dismissing tbe appeal, with costs, and tbe papers remanded to tbe justice of tbe peace who beard tbe case, with directions to proceed thereunder according to law. From that order this appeal was taken.</p> <p>Tbe sole question presented for our determination is whether tbe undertaking, thus entered into by this appellant and one surety, is a sufficient undertaking to sustain tbe appeal to tbe supreme court of tbe District of Columbia.</p>

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia in an action on a bond given to secure tbe performance of a contract. Tbe Court in the opinion stated tbe facts as follows: One William S. Jones, a builder, on January 24, 1900, entered into a contract with appellee, Hensey, to complete twenty-one partially constructed bouses for tbe stated consideration of $89,250.

Hearing on an appeal by the plaintiff from an order of tbe Supreme Court of the District of Columbia granting a motion to vacate the service of a summons.

<p>Patents; Interference; Bdeden of Proof; Concurrent Decisions of Patent-Office Tribunals; Invention as between Employee and Employee; Questions Open on Appeal.</p> <p>1. Tbe junior applicant in interference proceedings has the burden of proving priority of invention, and this burden is greatly increased when he has the concurrent decisions of the three tribunals of the Patent Office against him. (Following Swihart v. Mauldm, 19 App. D. C. 573.)</p> <p>2. Where the Commissioner of Patents concurs in and affirms the decision of the Examiners-in-Chief on matters of fact, this court will not reverse his decision, unless it clearly appears that it was clearly against the weight of evidence. It will not be reversed on any mere question of doubt whether it be correct or not. (Following Flora v. Powrie, 23 App. D. C. 202; Be Adams, 24 App. D. C. 277.)</p> <p>3. Where a person has discovered an improved principle in a machine, manufacture, or composition of matter, and employs other persons to assist him in carrying out that principle, and they, in the course of experiments arising from that employment, make valuable discoveries ancillary to the plan and preconceived design of the employer, such suggested improvements are in general to be regarded as the property of the person who discovered the original improved principle, and may be embodied in his patent as a part of his invention. (Following Milton v. Kingsley, 7 App. D. C. 531; Gedge v. Cromwell, 19 App. D. C. 192; Gallagher v. Eastings, 21 App. D. C. 88; Sendelbach v. Gillette, 22 App. D. C. 174.)</p> <p>4. The question of patentability is not ordinarily regarded as open on appeal to this court in an interference case, but is to be regarded as conclusively established by the Commissioner of Patents. The question in such cases is one of priority, and not of patentability. (Following Eisey v. Peters, 6 App. D. C. 68; Doyle v. McBoberts, 10 App. D. C. 445; Newton v. Woodward, 16 App. D. C. 568; Luger v. Browning, 21 App. D. C. 205; and Latham v. Armat, 17 App. D. C. 351.)</p>

<p>Promissory Notes; Bona Eide Holder for Value; Parol Evidence; Practice.</p> <p>1. Defenses available against the holder of a note are available against a receiver appointed under a decree of court to collect the note.</p> <p>2. The position of the holder of negotiable paper for value is a strong one, and he cannot be displaced by mere circumstances of suspicion, growing out of the unpopular business, or even the ill reputation, of his assignor. (Following Brewer v. Slater, 18 App. D. C. 56.)</p> <p>3. A party who takes negotiable paper before maturity for a valuable consideration, without knowledge of any defect of title, in good faith, can hold it against all the world. A suspicion that there is a defect of title in the holder, or a knowledge of circumstances that might excite such suspicion in the mind of a cautious person, or even gross negligence at the time, will not defeat the title of the purchaser. This result can be produced only by bad faith, which implies guilty knowledge or wilful ignorance, and the burden of proof lies on the assailant of the title.</p> <p>4. In the absence of fraud, accident, or mistake, the rule is the same in equity as at law, that parol evidence of an oral agreement alleged to have been made at the time of drawing, making, or indorsing a bill or note, cannot be permitted to vary, qualify, or contradict, or to add to or substract from, the absolute terms of the written contract.</p> <p>5. Fraud in obtaining a note given in payment for stock is not sufficiently proved where it appears that the payee promised to return the note under certain conditions, and never to use it as collateral security, except in a certain locality; both of which promises he failed to keep. In such a ease a bona fide holder for value may recover on the note against the maker. (Citing Green v. Stewart, 23 App. D. C. 570; Brown v. Petersen, 25 App. D. C. 359.)</p> <p>6. The grounds of exceptions taken to rulings of the trial court should be stated by counsel.</p>

Hearing on an appeal by the defendants from a decree of the Supreme Court of the District of Columbia in a suit in equity for the cancelation of certain deeds, etc. The Court in the opinion stated… Held: (2) That the conveyance of April, 1896, to William F. Holtzman, be and is hereby declared a security merely for whatever expenditures may have been made by him for complainant on account of the said lot.

Iyr error to the Police Court of the District of Columbia. The Court in the opinion stated the facts as follows: An information in the police court charges that Louis H. Johnson, of the District of Columbia, “being then and there a registered physician in charge of a certain person infected with a contagious disease, to wit, diphtheria, did fail and neglect to report the same to the health officer of the District of Columbia within twenty-four hours after becoming aware of…

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

<p>Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia granting reformation of a deed.</p> <p>The Court in the opinion stated the facts as follows :</p> <p>Edith A. Lane, as sole heir at law of Edmund J. Operand, filed this bill against Emma J. Overand, surviving wife of said Edmund J. Overand, to reform a deed, under which the latter claimed title to lot 8 in John Gr. Slater’s subdivision of lots in square 917, in the city of Washington, and to vest the title of one half thereof in the complainant. '</p> <p>It appears that in 1883 Edmund J. Overand married the defendant, who was then a widow, in the State of New York, where they then resided. Each had one child, a daughter, and no children were beta of the last marriage. Removing to Washington, where the husband obtained a position in the Bureau of Engraving upon a salary of about $125 per month, they concluded to purchase the lot in controversy, the same having a brick dwelling upon it. The price paid was $5,500, the bulk of which was in monthly instalments.</p> <p>There was some question between them as to how the title should be taken, and it was determined that it should be in the names of both, that is to say, one half to each. The conveyance was made to them, reciting their names and the consideration as paid by both, and the habendum- clause read thus: “To have and to hold the said land and premises and appurtenances unto and to. the only use of the parties of the second part, their heirs and assigns, forever.”</p> <p>While the strict legal effect of the terms of the deed, as the law then was in the District of Columbia, was to create a_ tenancy by the entirety in the husband and wife, it is quits' clear from the evidence that both of the grantees intended and understood it to vest the title in them as tenants in common. The mutual friend who advised them to make the purchase so understood the direction to- make the deed, though he also, erroneously, advised them that, being a homestead, the survivor would be entitled to the possession of the interest of the first one deceased, during his or her life. This friend had some knowledge of the law of a western and a southern State, wherein such rights exist in a family home, and wherein joint tenancy and tenancy by the entirety had long since been abolished.</p> <p>Nothing occurred to disturb this belief, and both evidently remained therein until the death of the husband, which occurred on August 5, 1903. Though the direct evidence is ample to sustain this conclusion, it is further attested by the fact that the husband was induced to sign a will some time before his death, wherein he undertook to give all of his property, real, personal, and mixed, to his wife, relying upon her to do what was right by his daughter, and providing that, if his wife should die without leaving a will, or having sold his real estate, then 'it was his desire that his undivided one-half interest in his real estate, and the whole of his personal estate, shall go to his daughter Edith. It appears that he had no other real estate than the interest which he supposed was vested in him by the deed aforesaid. Whether this will was formally executed was not attempted to be proved, but it went into the possession of the defendant, was produced by her, and no attempt has ever been made to probate it. The defendant died after the decree was rendered sustaining the bill and granting its prayer for relief, and Mae Marshall, her heir at law, was made a party in her stead, and has prosecuted this appeal.</p>

Hearing op. an appeal by the defendant from a decree of the Supreme Court of the District of Columbia annulling a conveyance.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia in a suit on a promissory note. The Court in the opinion stated the facts as follows : This case involves the application of the 73d rule of the supreme court of the District of Columbia, providing for the entry of summary judgment on motion in an action arising ea; contractu.

<p>Patents; Interference; Concurrent Decisions of Patent-Office Tribunals; Burden of Proof; Construction of Counts in Interference; Reduction to Practice.</p> <p>1. Where the Patent-Office tribunals have agreed in their conclusions in an interference case, an appellant in this court must make out a very clear case of error in order to secure a reversal (following Hisey v. Peters, 6 App. D. C. 68; Hsty v. Newton, 14 App. D. C. 50; Howard v. Hey, 18 App. D. C. 142; Ocumpangh v. Norton, 25 App. D. C. 90). The fact that these tribunals have reached their conclusions by different paths does not detract from the weight to be given to their decisions.</p> <p>2. A junior applicant in interference proceedings, who has filed his application with knowledge of the issue of a patent to the senior party, has a heavy burden to sustain in order to prove his case. (Following Nielson v. Bradshaw, 16 App. D. C. 92; Kelly v. Fynn, 16 App. D. C. 573.)</p> <p>3. A junior applicant in interference proceedings may establish his case by showing a reduction to practice prior to the filing of the application by Iris rival, or by a conception and disclosure anterior thereto, followed by due diligence in his efforts to perfect his invention prior to and at the time when his rival entered the field.</p> <p>4. Where the claims of the patent of the senior party to an interference are bodily incorporated into the junior party’s application after the issue of the patent, for the purpose of provoking the interference, the counts of the issue thus formed are to be construed in the light of the specifications of the senior party’s patent. (Following Oherney v. Clauss, 25 App. D. C. 15.)</p> <p>5. A reduction to practice is not sufficiently shown by proof of various experiments in search of a particular process, and an approximation to that process. (Following Appert v. Sehmerta, 13 App. D. C. 117.)</p>

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

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

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

Hearing on an appeal from a decision of the Commissioner of Patents refusing to register a trademark. 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 will be found stated in Shuman v. Beall, ante, 324</p>

<p>Criminal Law; Bribery of United States Officials; Indictments; Joinder of Counts.</p> <p>1. Section 5451, U. S. Rev. Stat. (U. S. Comp. Stat. 1901, p. 3680), relating to the bribery of United States officials, includes an attempt to induce an officer to do or omit any act in violation of his lawful duty, on any question, matter, or proceeding which may at any time be pending or which may by law be brought before him in his official capacity; and an indictment under that section, which alleges that during an investigation by special agents of the government, under orders of the Secretary of the Interior, of the alleged unlawful appropriation of the public lands by the defendant and another, the defendant paid money to certain officers of .the government to induce them to reveal the contents of the report of such special agents when it should come into) their hands, — is sufficient, without any allegation that the report at the time of such payment had come into the possession of such officers, or that it ever would do so; the investigation and report being pending matters when the alleged briberies were committed.</p> <p>2. One count of an indictment may properly refer to matter in a previous count, so as to avoid unnecessary repetition; and a charge in one count that the accused did an act under the circumstances and conditions set forth in a preceding count, “well knowing, all and singular, the premises set forth in that count,” is a sufficiently full and distinct reference to the matter contained in the first count to incorporate it in the second. (Following Lorenz v. United States, 24 App. D. C. 363.)</p> <p>3. Where an indictment for bribery of a government officer contains eight counts, the first seven of which allege the offer of money by the defendant to the same person, in the same official relation, to induce the same violation of official duty, in respect to the same matter; and the only variation is in the eighth count, which alleges the giving of money to another official under like conditions, — the counts are properly joined. (Construing sec. 1024, U. S. Eev. Stat., U. S. Comp. Stat. 1901, p. 720.)</p> <p>4. An indictment under sec. 5451, U. S. Eev. Stat., for bribery of government officials, examined, and held properly to state every element of the offense intended to be charged; to be sufficiently full to enable the defendant to prepare his defense or to plead a former acquittal or conviction in bar, and to be within the understanding of the average jury.</p> <p>5. Where an indictment under sec. 5451, U. S. Eev. Stat., for bribing government officials to disclose to the defendant the contents of an expected report by special agents investigating certain land frauds which the defendant and another were accused of perpetrating, alleged that it was the duty of such officials, under the circumstances recited, to keep the contents of such reports secret from those charged with such frauds, including the defendant, it was held that the recitals supplied a sufficient basis for the allegation of duty on the part of such officials, and that it was not necessary to show that they were under a statutory duty not to disclose the contents of such report. (Following Tyner v. United States, 23 App. D. C. 356.)</p> <p>6. Where matter in an indictment is capable of different meanings, that will be taken by the court which will support the proceedings, not that which would defeat them; and the language is to be construed in that sense in which the party framing the charge must be understood to have used it, if he intended his accusation to be consistent.</p>

Hearing on an appeal by the complainant from a decree of tbe Supreme Court of the District of Columbia dismissing a bill to set aside a sale under a deed of trust.

Hearing on an appeal (specially allowed) by two of several defendants from an order of the Supreme Court of the District of Columbia, overruling demurrers to an indictment for conspiracy to defraud the United States. The Court in the opinion stated the facts as follows: This is a special appeal allowed from an interlocutory order overruling demurrers to an indictment against Frederick A. Hyde, John A. Benson, Henry P. Dimond, and Joost H. Schneider.

<p>Hearing on an appeal by tbe plaintiff from a judgment of the Supreme Court of the District of Columbia upon the verdict of a jury in an action of trespass.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal from a decision of the Commissioner of Patents refusing to register a trademark.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal from a decision of the Commissioner of Patents refusing to register a trademark. The facts are sufficiently stated in the opinion.

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

<p>Hearing on an appeal by the plaintiffs from a judgment of the Supreme Court of the District of Columbia in an action of ejectment.</p> <p>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 upon the verdict of a jury directed by the court, in an action of ejectment.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia on a verdict directed by the court in an action to recover damages for personal injuries. The Court in the opinion- stated the facts as follows: Annie E. Scott, the appellant, the plaintiff below, sued the District of Columbia for its negligence, and for injuries suffered thereby.

Hearing on an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia, upon a verdict directed by the court, in an action upon a contract. ' Tbe facts are sufficiently stated in tbe opinion.

<p>Embezzlement; Indictment; Bilí, of Particulars; D. 0.- Code, Sec. 841, 30 Stat. at L. 1326, Chap. 854, Construed ; Construction of Statutes; Discretion of Trial Court; Motion to Return Papers to Files; Continuances; Ownership; Corporations, Proof of Existence; Estoppel; Biel of Exceptions; Instructions; Receivers; Presumption of Innocence; Remarks of Counsel; Sentence and Punishment.</p> <p>I. An indictment which, charges with precision and certainty that the defendant was appointed a receiver by order of court, that, by virtue of said appointment, he came into possession of a certain sum of money, and that on a certain date, in the District of Columbia, he unlawfully and fraudulently converted and appropriated the same to his own use, and did then and there embezzle the same, sets out with certainty all the necessary elements of the offense of embezzlement as described in D. C. Code, sec. 841 (30 Stat. at L. 1326, chap. 854).</p> <p>2. In an indictment for embezzlement under sec. 841, D. C. Code (30-Stat. at L. 1326, chap. 854), alleging that the defendant unlawfully- and fraudulently converted money to his own use, it is not necessary to allege the particular manner in which such conversion took place,, for the words “unlawfully and fraudulently converted” have a well-known signification) common as well as legal. (Following Gassenheimer v. United States, 26 App. D. C. 432.)</p> <p>3. Where an indictment is sufficiently certain in its terms, the question whether the district attorney shall be required to file a bill of particulars is a matter within the discretion of the trial court.</p> <p>4. See. 841, D. C. Code (30 Stat. at L. 1326, chap. 854), describing embezzlement by a receiver as the fraudulent conversion to his own use of. property which “may come” into his possession by virtue of' his employment, comprehends property in the hands of the receiver-before the passage of the act, but embezzled thereafter.</p> <p>5. Words like “may,” “must,” “shall,” etc., are constantly used in statutes without intending that they shall be taken literally, and in their construction the object evidently designed to be reached limits and controls the literal import of the terms and phrases employed.</p> <p>6. Statutes are to receive a sensible construction, such as will effect the legislative intent, and should be construed, if possible, so as to-avoid or reject an absurd conclusion.</p> <p>7. On an indictment for embezzlement, against a receiver, the action of the trial court in refusing to compel the district attorney to return to the clerk’s office the papers in the equity cause in which the defendant was appointed receiver is not an abuse of discretion, where it-appears that such papers are necessary to the preparation of the ease for prosecution, that access to the same has never been denied to the-defendant, and that the court announced that the defendant might-examine any or all of them.</p> <p>8. The action of the trial court upon an application for a continuance-is purely a matter of discretion, and not subject to review, unless, it be clearly shown that such discretion has been abused.</p> <p>9. On the trial of an indictment for embezzlement, against a receiver,, a motion for a continuance to procure the testimony of certain witnesses is properly refused, where it does not appear that the personal, appearance of the witnesses could not have been obtained, and where-the only effect of their testimony would be to contradict the decree in pursuance of which the defendant was appointed receiver.</p> <p>10. On the trial of an indictment against a receiver of an association for embezzlement of funds of the association, a motion for a continuance to procure the testimony of a witness is properly refused, where the-supporting affidavit alleges that such witness would testify that a. large part of the funds had come lawfully into the possession of defendant’s «¡receiver, and it appears that such funds were in the hands of the receivers jointly, and that no order of court had ever been made to pay them out.</p> <p>11. Semble, that it is only in extreme eases that a court will continue a ease indefinitely for the purpose of procuring evidence, even if such evidence is shown to be plainly competent and material.</p> <p>12. On the trial of an indictment for embezzlement, against the receiver of a corporation, the ownership by the corporation of the funds alleged to have been embezzled is sufficiently proved where it is shown that such funds are the proceeds of real estate, and that such real estate was owned by the corporation, and vested in the defendant as receiver by an order of court.</p> <p>13. Proof of the existence of a corporation may be made by the records of the register of deeds of .the District of Columbia, or by evidence tending to show that the corporation was de facto organized and acting as such.</p> <p>14. A corporation does not cease to exist through the discontinuance of its business, the failure to maintain its active organization, or by becoming hopelessly insolvent. (Following Brown v. Delafield & B. Cement Co. 1 App. D. C. 232, 236.)</p> <p>15. A person appointed by order of court as receiver of a corporation cannot question the de facto status of such corporation.</p> <p>16. An objection not appearing in the bill of exceptions will not be considered by the appellate court.</p> <p>17. A refusal by the trial court to consider a number of prayers submitted altogether is of no consequence, where such prayers are afterwards submitted separately, and either given or refused.</p> <p>18. Where a bill of exceptions contains no recital of the fact of the absence or presence of the jury, it is to be presumed that they were present.</p> <p>19. While a bill of exceptions purporting to contain a recital of evidence, apparently full in regular order of sequence, may, under the particular circumstances of a case, be sometimes accepted as a complete statement, in substance, of all of the evidence, a bill of exceptions cannot be so taken, where it is apparent from the charge of the court that: certain letters of the defendant were offered as tending to show an: acknowledgment of guilt, and the same are not recited or mentioned, in the bill of exceptions.</p> <p>20. The real custody of property in the hands of a receiver is in the court: of which he is a temporary officer by appointment. The receiver has no personal control of the money, and can only pay it out or invest it by the sanction of the court.</p> <p>21. A defendant in a criminal prosecution is entitled to a charge upon the presumption of innocence; but it is proper to refuse to charge that “the law presumes the defendant to be an honest, upright man of integrity and good character, and the jury are bound to assume him to be such a man in the consideration of the evidence,” where the de- . fendant has offered no proof of good character.</p> <p>22. Though invective by counsel is in bad taste, yet, if it is founded on the evidence in the ease on trial, and relates to the final conclusion which that evidence tends to establish, its permission by the court does not amount to reversible error.</p> <p>23. Where the court rebukes counsel for an improper remark, and orders him to withdraw it, and this is done, and no further action is asked of the court, the remark cannot be complained of on appeal. (Following Lorenz v. United States, 24 App. D. C. 337, 391.)</p> <p>24. While D. C. Code, sec. 841 (30 Stat. at L. 1326, chap. 854), declares a forfeiture of a receiver’s commissions and charges in eases of embezzlement of the funds in his possession, it is not a part of the punishment which the court, having jurisdiction of the offense, is authorized to impose, and it is properly omitted in entering the judgment upon the verdict and fixing the penalty. If effective, the question of the forfeiture is for the determination of the equity court having jurisdiction in the matter of the receivership when the accounts thereof come on for final settlement.</p> <p>25. Under Eev. Stat. secs. 5539 and 5546 (U. S. Comp. Stat. 1901, pp. 3720, 3723), an imprisonment, if for more than one year, may be in a State penitentiary, and when so imprisoned the convicted person is subject to the same discipline and treatment as those sentenced by the State court.</p> <p>26. Under D. C. Code, sec. 841 (30 Stat. at L. 1326, chap. 854), a sentence imposing imprisonment “at labor” is not warranted, and on appeal therefrom the judgment will be modified by striking out such words as “surplusage.” (Following Raymond v. United States, 25 App. D. C. 555, 562, 26 App. D. C. 250.)</p>

<p>Patents; Interference; Claims; Burden of Proof; Presumptions; Reduction to Practice.</p> <p>1. The junior party to an interference is not required to prove his case beyond a reasonable doubt, but need prove it only by a preponderance of the evidence, where his application was pending when a patent was granted to his adversary.</p> <p>2. The presumption is that an inventor intends to protect his invention broadly, and consequently the scope of a claim should not be restricted beyond the ordinary meaning of the words, save for the purpose of saving it; and, in reading the claim for the purpose of construing it, heed must not only be paid to the specification proper and to the drawings, but also to the other claims of the patent.</p> <p>3. Where a patent has been granted as filed, no prior art being cited, and the element in controversy in the interference is narrowly claimed in some of the claims and broadly in others; and where the application upon which the patent was issued was pending with the application with which it becomes involved in interference; and where no motion is made to avoid the interference by calling the attention of the Patent Office to the claimed fact that an element of the claim is limited to such element when made of a material having certain characteristics; and where the invention may be carried out by the use of the element with or without the limiting qualification, — the issue should be construed as it reads, and free from narrow encumbrances; and the senior party who has a patent may not be heard to ask that his claim be rewritten so that it may prevail in the interference.</p> <p>4. The same acts or sets of acts may, or may not, constitute reduction to practice, modified as they may be by the special circumstances of the particular case. (Following Gallagher v. Sien, 25 App. D. C. 77.)</p> <p>5, In an interference case, where there were tests of the device embodying the invention by men of experience in the particular art to which the invention related, at a place equipped with everything necessary to enable continued and complete tests to be made,- it was held that there had been a reduction to practice, in that the test showed the work of the invention to be complete, though the first device so made was not a commercial article.</p>

Hearing on an appeal by tbe United States from a judgment of tbe Supreme Court of tbe District of Columbia, upon tbe verdict of a jury, in an action upon tbe bond of a consul officer.

Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia sustaining a bill for divorce, dismissing a cross bill, and ordering the defendant to pay alimony. The facts are sufficiently stated in the opinion.

<p>Hearing on appeal by one of several defendants from a judgment of tbe Supreme' Court of the District of Columbia upon a verdict of a jury in an action of replevin.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia in a suit by the commissioners of the District for an injunction.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from an order enjoining the maintenance and use of a projection of a show window over the building line of East Capitol street, in the city of Washington.</p> <p>The bill of the appellees, Henry B. Macfarland, Henry L. West, and John Biddle, in their official capacity as commissioners of the District, alleged the following facts: That on March 15, 1905, the appellant, John R. Guerin, as owner of a certain frame building on East Capitol street, made application to the inspector of buildings for a permit to make repairs on the same, which repairs were represented as consisting of replacing weather boarding, window frames and sash, and wooden cornice. That the permit was issued for the purposes designated, subject expressly to the provisions of the building regulations, and contained express limitations in the following words: “No enlargement — no increase in the projection of cornice.” That defendant, instead of observing the terms of his application and the conditions of the permit issued in accordance therewith, proceeded to erect a show window in his said building, 7 feet and 10 inches wide, which, for said entire width, projected beyond the building line, and encroached upon the public parking of the said street to the extent of 3 feet. That when the inspector examined the work, on March 17, 1905, he discovered the unlawful encroachment, and at once demanded its removal. That, subsequently, written notice was given to the defendant to remove said obstruction, because it was in violation of section 19 of the building regulations of the District. That defendant refused to remove the said obstruction, and continues said unlawful encroachment, thereby creating a public nuisance. The prayer was for a rule to show cause why an order should not be granted removing said obstruction, and, upon hearing, for a decree to that end.</p> <p>The rule was issued, and in obedience thereto the defendant appeared and entered a demurrer to the bill. This was overruled. The defendant asked no leave to answer the bill, and, his appearance and demurrer being deemed equivalent to an answer to the rule, the order for the abatement of the nuisance was passed, directing the mandatory injunction to issue upon compliance by the complainants with equity rule 42.</p>

Heaeing on an appeal by tbe complainant from a decree of the Supreme Court of the District of Columbia, dismissing a bill in equity to establish a lien upon certain real estate. The Court in the opinion stated the facts as follows: The appellant, Louisa A. Crosby, by her amended bill in equity, filed January 16, 1906 (the original bill having been filed May 12, 1905), alleges that she employed John Bidout, attorney at law, to invest $1,500 for her.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia upon the verdict of a jury in an action of libel. The Court in the opinion stated the facts as follows: • This appeal is taken from a judgment rendered on a verdict in favor of the appellee, William L. Wells.

<p>Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia upon the verdict of a jury in an action in assumpsit.</p> <p>Tbe Court in tbe opinion stated tbe facts as follows:</p> <p>This is an appeal from a judgment for $25,000 rendered in an action of assumpsit.</p> <p>Tbe declaration of the plaintiff, William H. IVIilliken, alleged tbe following facts substantially: In April, 1902, tbe defendant, Napoleon B. Dotson, represented to plaintiff that he owned and controlled 124,000 acres of coal lands situated in Letcher and Harlan counties, in the State of Kentucky; that he had secured an agreement with the Southern Railway Company to construct a branch railway into said lands, and that he desired to secure a purchaser for either the whole or a considerable part of said lands, at and for the price of $20 per acre; that if plaintiff would find a purchaser at said price defendant would allow and pay him $2.50 for each acre for which he should find 0 purchaser; that, relying upon such representations and promise, plaintiff applied himself diligently to find a purchaser or purchasers, and, after much labor and the expenditure of much time and about $2,500 in money during the space of five months, procured and furnished a responsible purchaser, namely, the Tri-State Coal & Coke Company of Pittsburg, Pennsylvania, which was, on, to wit, September 15, 1902, ready, able, and willing to purchase 10,000 acres of said lands at $20 per acre in cash, subject only to the truth of defendant’s representations in respect of the construction of the railway into said lands; that it then transpired that the defendant’s said representations were untrue, and that there had been no agreement to construct said railway; that had it not been for the said representations plaintiff would not have undertaken to find a purchaser; that for the reason aforesaid, and without plaintiff’s fault, the said purchaser declined to proceed further in the matter of purchase. A second count stated the same facts substantially, and was followed by the ordinary common counts. Defendant filed several pleas, which were stricken out, and the case was submitted on his plea of non assumpsit.</p> <p>Plaintiff introduced evidence tending to show the following facts in support of his declaration: That- he heard of the proposed sale of defendant’s lands in April, 1902, and received a letter from defendant dated April 24, 1902, relating to the offer of sale, and suggesting a meeting, and containing the following paragraph: “We have arranged with R. R. companies to build-a branch into it and develop the lands.” A typewritten, unaddressed letter accompanied this, which, after describing the rich veins of coal in the lands, contained this statement: “We have an understanding with the railroads near the lands, by which they are to build a branch into the same for us as soon as we are ready to open up coal veins and put in coke plants.” A prospectus was inclosed also, which contained a lengthy description of the lands, the extent of the coal seams, and an extract from the official report of the State geologist, John R. Procter, showing that the coal of the particular region was of an excellent quality. It contained a statement of the nearest railway lines and that “the L. and N. and Southern railways have both offered to build into this property at once,” and the ■following: “The property having been made up by grouping together smaller tracts, it will be sold in any size tracts to suit purchasers, and can be laid off and sold in separate blocks, so as to render each block desirable and well located for coal and coke plants, or it will be sold together,” etc. That by appointment he met defendant in Washington on April 30, and told him he was familiar with the section and knew the land and its value, but that the important thing was the railway to get to market. That defendant said he had an arrangement with Spencer of the Southern Railway to build a road in there from Middleboro at ■once, and that the surveyors were in there locating a line from Middleboro to Harlan Court House, which is just at the edge of the land. That he then agreed with defendant to visit Pittsburg and secure purchasers for the property at $20 per acre, and ■defendant agreed to pay him $2.50 per acre for every acre that he could sell in such quantities as he could find purchasers for; plaintiff to pay his own expenses. That plaintiff would not have gone into the matter without the assurance as to the railway, because it was necessary to the utilization of the coal. That plaintiff at once went to Pittsburg and began negotiations with parties there. That the first question asked him by them was in regard to the contract for the railway construction; and upon plaintiff’s replying that he had not made the contract, but that defendant had represented to him that there was such an arrangement, Easter, of the Tri-State Coal & Coke Company, with whom he was dealing, insisted that plaintiff should have something in writing from defendant to that effect. That, communicating this fact to defendant, he received a letter from him, dated May 3, in which he referred to the general nature of the land, advantages, etc., but the only reference to the railway was in the following language: “This is property which will be developed by the building of the R. R. through it at once, which will increase the value of it several times over.” That the Pittsburg people were not satisfied, as they feared there were some conditions attached in regard to building the road, and insisted that plaintiff should state what conditions, if any, were attached. That on May 8 plaintiff, in carrying out this suggestion, sent the following telegram to the defendant, who was then in New York: “See Spencer and write me to-night how much development he will require before building road into property. Would two hundred coke ovens be sufficient to start with ?” That a letter of the same date in reply was received in due course of mail, which contained the following: “I have already discussed fully with Mr. Spencer the point with reference- to extent of development he would like to have on the property to commence with, and am glad to say that Mr. Spencer is willing to build the road into the property without placing any requirements on the property holders to put in certain sized plants, or any number of coke ovens. I have explained fully to Mr. Spencer our plans for the development of the land, and he is now ready to commence work on the road just as soon as we are ready for him to do so, and we can use our own judgment to the extent of the development we would put on the lands to commence with. Mr. Spencer has investigated the situation and knows the Southern and Louisville & Nashville Railroad can furnish a market for a vast amount of coal and coke from this field.” * * * That Easter seemed satisfied with this letter, which was shown to him, and agreed that he would take the matter up if plaintiff would procure samples of the coal and have it tested in Pittsburg to see if it would make good coke. That plaintiff went to Wise county, Virginia, where defendant lived, and with a friend, under the direction of a guide furnished by the defendant, rode over the mountains and spent a week inspecting the lands. That he returned to Pittsburg May 27 with samples of coal, the first analysis of which was not satisfactory; but a second was better. That Easter was pleased and proposed to go with plaintiff to see the lands in company with a mine expert. That correspondence passed between plaintiff and defendant at frequent intervals. One letter from defendant dated May 29, and relating to sending samples of coal, had this postscript: “I understand the Southern By. Co. has secured their right of way with exceptions of through one or two tracts from Middleboro to Harlan C. H. I hope, however, Mr. Spencer will call his men out and keep them out until we get our tracts rounded up as we have requested him to do. I presume your people will be in a position to give us a definite answer as soon as they have tested the coal. We have another proposition from a party wanting an interest down there, and would like to have your people conclude as soon as possible.” Another letter of defendant, dated June 12, expressed satisfaction with the result of the experiments with the coal, and said: “The engineers are now locating the line of the Southern into our property. It would not be necessary for me to accompany Mr. Easter to see Mr. Spencer, as Mr. Spencer’s plans are already fixed; he would not hesitate to say to Mr. Easter that he will build the road into that section at once.” In another of July 8, replying to a complaint of plaintiff that one Ingraham had offered the same lands for $15 per acre, and explaining the same by stating that the price had been raised by reason of the railway arrangement, he said: * * * “the B. B. is now located too near the property, and work will soon be vigorously pushed, and, of course, price will very soon be higher.” That a letter of July 9 contained the following: * * * “and if your parties get advantage of this low price they will have to act promptly, as B. B. will soon be built and the price will advance greatly. How much do your people want? Do they want the entire tract or do they want only part of it ? If you will let me know the exact number of acres they want to purchase, if they find the coal satisfactory upon further investigation, I will place you in a position to give them refusal of the property for sufficient time eo look it over and say whether or. not they want it * * * We are now having titles abstracted, surveys made, etc., and no long option will be given on the property. Appreciating the amount of work and expense you have been to in trying to handle the property, we will give your people time to look the property over and give me a definite answer as to whether or not they take it.” That the following option was proposed and executed by defendant, who knew that Easter was president of the Tri-State Coal & Coke Company and represented it in the transaction:</p> <p>Virginia Coke, & Steam Coal Co. hereby grants to T. J. Easter, of Pittsburg, Pennsylvania, an option to purchase 10,000 acres, of land in Harlan county, Ky., at the price of $20 per acre, at any time within sixty days from this date, in consideration of and on condition that the said T. J. Easter shall forthwith send an engineer to examine and report on said lands. Said examination to be completed and report made and said Virginia Coke & Steam Coal Company notified within thirty days from this date, and upon receipt of said report said T. J. Easter shall elect as to whether or not he will accept this option and purchase said property, and if on receipt of said report the said T. J. Easter notifies said Virginia Coke & Steam Coal Company of his decision to purchase the said lands within said thirty days, then the said purchase is to be completed, the money paid, and deed in fee to said land executed within sixty days from'this date.</p> <p>Witness the following signature on this 24th day of June. 1902:</p> <p>.Virginia Coke and Steam Coal Company.</p> <p>By N. B. Dotson, President.</p> <p>That the investigation made by experts -was satisfactory, and the Pittsburg parties agreed to take 10,000 acres at the price named. That plaintiff had no authority to execute a contrad for sale, and telegraphed defendant to come. That defendanl arrived in Pittsburg on September 3, 1902, and the parties all met in plaintiff’s room in hotel. That the Pittsburg people announced themselves ready to take 10,000 acres of the land but must Have assurances in regard to building the railroad. Defendant then said he had simply a verbal arrangement with Spencer, but that he could get a letter from Spencer saying that he would build a road through there at once, and also said that engineers were there locating the road, and there would be no question about it. That the purchasers announced that a letter from Spencer would be satisfactory. That defendant asked plaintiff to go to New York and see Spencer and get the letter. That he did so and found that Spencer had gone to Europe. That plaintiff told the purchasers the situation, and asked them to give him more time to get a letter from Spencer before abandoning the purchase. That, not having obtained •the letter from Spencer in the meantime, the purchasers, in the latter part of October, announced to plaintiff that they could ■not wait longer, and were making arrangements for other coal lands. The evidence of Samuel Spencer, in connection with correspondence between him and defendant, tended to show that there had been no agreement with defendant to build his railway into the lands. That the same was contemplated, and •preliminary surveys made, and so forth, but that all was based •upon satisfactory assurances of a sufficient amount of business, which had not been obtained.</p> <p>The testimony of Thomas J. Easter, called for plaintiff, tended to show that he was the president of the Tri-State Coal & Coke Company of Pittsburg, and represented it in negotiations with plaintiff for the purchase of coal lands in Harlan county, Kentucky. That he was not willing to invest in any property that could not be developed almost immediately. That plaintiff produced defendant’s letter of May 8, 1902, stating that he had completed arrangements with Mr. Spencer to construct a road into said lands without any particular assurances .ás to improvements that would be necessary. That after pro■curing the option Wilson and Koonts, representing the Coal & Coke Company, made a trip over the land. That in an interview with defendant in September, in Pittsburg, they informed him that they would take 10,000 acres at $20 per acre if he ■could show some tangible arrangement between himself and the .railway company to build the line. That defendant said he had Mr. Spencer’s assurance to build the road whether operations were begun at once or not, but not in writing, and that Mr. Spencer’s word was as good as a written contract. That defendant promised to effect a meeting between ourselves and the railway people, at which meeting he was sure a written agreement could be had. That nothing had since been heard as regards willingness to proceed with the railroad. That he did not buy the land for the reason that there was no arrangement for the construction of the railroad. That we failed to close at that meeting because defendant could not assure us that any railroad would be built, and therefore gave up the matter and purchased coal lands elsewhere. That they would not think of buying lands in that section without a railroad, and had refused to take up the matter seriously until shown the defendant’s letter of May. 8, 1902. That at an interview thereafter defendant stated there was no question about the railroad being built, that men were then working on the road while we were there, and had been taken off at the present time by an arrangement between him and Spencer to enable defendant to secure further options. That witness wrote a letter to Mr. Spencer on August 23, 1902, making inquiry about the railroad, which was replied to by W. W. Finley, second vice president of the Southern Railway Company, on August 29, 1902, in which he said: “The construction of a line in the territory mentioned by you is now under investigation and consideration, but no final conclusions have been reached. Conclusions in the matter would be greatly facilitated if we could be advised from time to time of actual developments which parties in control of the lands contiguous to such line would obligate themselves to undertake. I shall be pleased to hear from you further on the subject.” That the interview with Dotson, at Hotel Henry, was subsequent to the receipt of the letter from Finley. That witness had the letter,' but did not show it to Dotson. That while they had their own ideas that no railroad would be built, they had been given to understand by Milliken that a bona fide agreement existed between Dotson and Spencer, and Dotson at the meeting gave them to understand that such agreement did exist, though not in writing. That they refused to take the matter up on Dotson’s letter in October for the reason that they had purchased and begun operations in another field. That they abandoned the proposition to purchase some time after this meeting, and that the failure of Dotson to produce evidence of the agreement to construct the railway had everything to do with the decision not to purchase; that they decided at once after the meeting at Hotel Henry to abandon the idea of purchasing the land. W. W. Finley testified to the letters produced, and to a conference in New York on September 23 with Dotson and one Perin, who had negotiations to purchase; but did not remember that Milliken was present. That the matter of railway construction was then “drifting along.”</p> <p>In connection with plaintiff’s evidence was also read a letter to him, addressed to Pittsburg, on August 26, 1902, replying to his telegram relating to the offer of the parties, and containing the following: “Your telegram informing me that your parties have decided to take 10,000 acres positively, and possibly 20,000 acres, is received. I presume you will have heard from Mr. Spencer before this time, and you will be down at once to close the matter up.” This was posted at "Wise, Virginia, where defendant resided. The letter of plaintiff, following the telegram aforesaid, was dated August 25, at Pitts-burg, and contained this statement: “I have met Mr. Easter and they have decided to take the 10,000 acres of coal lands, on condition that Mr. Spencer will assure them as to the building of the railroad to Harlan C. H. They have written to Spencer, and stated what they proposed doing, and asked as to the railroad. So, if his answer confirms what you have represented on this point, they will close the purchase for 10,000 acres.” Then followed a complaint that Easter had letters from two other parties offering some of the lands at $12.50 and $15 per acre, and that some other parties had gotten the analysis that had been made for plaintiff, and warning him that no deal must be made with Easter and his people, the Tri-State Coal & Coke Co., at less than $20, and only through plaintiff, “unless you are willing to reduce the price on your own account ■without affecting me.” This paragraph then followed: “But this would be utterly unnecessary. They have made up their minds to buy the 10,000 acres at $20 if they cannot get it for less, if Mr. Spencer satisfies them he will build the road. If he does not, they do not want the land at any price.” There were other letters from plaintiff to defendant during September, 1902, tending to show that plaintiff was still trying to get some satisfactory statement from the officers of the Southern Baih way Company (Mr. Spencer being still in Europe) concerning the building of the railway. - Defendant testified that at the meeting with plaintiff in April, 1902, he authorized him to sell at $11.50 per acre, agreeing to give him all that he could get in excess of that sum. He also read in evidence the correspondence between him and Spencer in 1902 relating to the •railroad construction, that has been referred to in connection with Spencer’s testimony. It is lengthy, and does not show that Spencer had ever entered into the alleged agreement to build the railroad, but was giving the matter favorable consideration. He also testified that plaintiff saw one of Spencer’s letters of May 13, 1902, and that “Spencer did not say that the road would not be built; said he would consider it favorably.”</p> <p>Defendant also testified that' he went to Pittsburg in response to plaintiff’s telegram to come and close the deal. That he showed Easter a map of the location of the lands, and explained to them the terms on which the railroad would agree to build. That Easter suggested that defendant would better get a letter from Spencer — something in writing to bind him to construct the road; that they did not think they would go into the matter upon a simple statement from Spencer that he would build the road; and that defendant would have to get a letter from Spencer. That defendant thought if Easter would see Spencer and let him know just what he was willing to do in the way of the development of the property, Spencer would not object to giving him a letter of that kind. That they promised to do that, and said they would arrange to see Spencer, to have a conference to see what arrangements could be made. That at the time defendant gave Milliken a letter of introduction to Spencer to go and see what arrangements could be made. This letter, dated September 5, 1902, stated that plaintiff calls in the interest of the Pittsburg coal people, who want to join us in the development of some of the Harlan County coal lands, if they know that a railroad will be built into them in the near future. * * * He further testified that he had all of the Spencer correspondence with him, and showed it to Milliken, and, he thinks, to Easter also; and after that Easter said he would not go into the deal unless they got a written contract with Spencer. In regard to the option, he testified that plaintiff brought it to him at his home, and had put in a clause making .it conditional on the building of the road, and the defendant changed this.</p> <p>One Charles P. Perm testified for defendant concerning purchase made by people represented by him of 30,000 acres of the Harlan county lands in September, 1902, and that in interviews concerning the railway plaintiff was present with him and Finley, the vice president of the Southern Railway Company, and plaintiff then knew that no agreement had been made to build the railway. Several witnesses testified to declarations made to them by plaintiff when in Harlan county, and while he was inspecting the lands, that no railway had been promised to be built, etc.</p> <p>Plaintiff, in rebuttal, denied the statements made by defendant, by Perm, and by the last-named witnesses.</p>

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

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

Hearing on an appeal by an opponent of an application for registration of a trademark, from a decision of the Commissioner of Patents awarding-registration. The facts are sufficiently stated in the opinion.

<p>Hearing on an appeal by the caveator from an order of the Supreme Court of the District of Columbia sitting as a probate court, admitting to probate an alleged last will and testament, issues of fact having been found by the jury in favor of the caveatee.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal by Eugene F. Robinson, caveator below, from an order of the Supreme Court of the District of Columbia holding a probate court, admitting to probate and record in that court a paper writing, dated April 18, 1902, as the last will of James S. Eobinson.</p> <p>The questions to be decided here do not make it necessary to recapitulate all the evidence. The trial was had upon three issues. The first was as to the execution and attestation of the paper writing of April 18, 1902, as the last will of James S. Eobinson. The second was whether at the time of its execution said Eobinson was of sound and disposing mind and capable of executing a valid deed or contract; and the third was whether the execution of said paper was procured by fraud, misrepresentation, or artifice, or while said James S. Eobinson was under the undue influence of Snowden W. Eobinson, or A Ivirá Eobinson, or any other person or persons. Upon all the issues the verdict was for Andrew B. Duvall, executor, Snowden W. Eobinson, and others, caveatees, the appellees here.</p> <p>At the trial there was no dispute concerning the execution of the will, the matter involved in the first issue. At the close of the evidence the learned court below instructed the jury to find for the appellees upon the third issue, as to fraud and undue influence, and the jury found for the appellees upon the second issue, as to the capacity of James S. Eobinson to make such a will.</p> <p>James S. Eobinson executed this will April 18, 1902 when he was about seventy years of age. On the evening of August 4, 1902, he fell into an areaway in the rear of the home of his brother, Snowden Eobinson, at whose house he had lived during the last six weeks of his life. James S. Eobinson died a few hours after this accident. In early life he had been a bookbinder in the Government Printing Office, and had acquired considerable property. About twenty years before his death he ceased to be employed in the government service, and gave his attention to his property, worth about $50,000. He was a bachelor, fond of money, and busied himself about a number of small houses which he owned, and with the collection of his xents.</p> <p>The testator had a brother Snowden, who survived him; a brother Somerset, who died several years before the testator and without issue; a brother Bushrod, who died in December, 1901, leaving one son, Eugene E. Bobinson, the caveator ; a ■sister, Ellen Atz, who died about January, 1902; a sister, Mahala Duley, who died years before, leaving children who survived the testator, and also children of one of her deceased daughters; and another sister, Martha Collins, who had died before the testator, leaving children surviving.</p> <p>By his will of April 18, 1902, the testator left a legacy of $800 to the Mt. Vernon Methodist Episcopal Church, South; a legacy of $5 to his nephew, Eugene Bobinson, son of Bushrod Bobinson, deceased. The residue of his estate was given, one third to his brother, Snowden Bobinson; one third to the children of his deceased sister, Martha Collins; and one third to the children of his deceased sister, Mahala Duley,-the devises and bequests in each instance to the children of a deceased sister being to the children, their heirs and personal representatives, said children to take per stirpes, and not per capita. Andrew B. Duvall was appointed executor and trustee, with certain powers.</p> <p>On the part of the appellant the evidence tended to show that the' testator was a peculiar man, whose hahits were uncleanly ; that he had been very intemperate for the last ten years of his life; that he was penurious, suspicious, and forgetful. Some witnesses were of the opinion that his mind had been unsound during the last year of his life; others that the period of unsoundness included the last five years. Some said he was a very feeble-minded old man, and numbers were of the opinion that during the last year of his life he was incapable of making a valid deed or contract, and was very susceptible to influence if unduly exerted.</p> <p>On behalf of the appellees the testimony strongly tended to show the testator was of sound mind and a shrewd and capable man, not easily influenced; and much evidence was introduced to show that he was thrifty, that he attended to his own business, and that, although he had been a drinking man during the last year and a half of his life, very many witnesses familiar with his life testified either that he was always sober, or that he was rarely under the influence of liquor. The testimony of many intelligent witnesses was emphatic that the testator was a man of much intelligence and decided capacity for business, cautious in speech, that he was neat and cleanly in his attire, .and there was no trace of mental unsoundness.</p> <p>Mr. Michael J. Keane, a witness for the caveator, and an .attorney, testified that about April 1, 1902, the testator had asked Mr. Keane to write a will for him, at the same time naming the amounts he intended to leave to his kindred, and stating that he only intended to give $5 or $10 to Eugene Kobinson, the testator saying Eugene had been trying to get the better of Eim as to some property and he intended to cut him off. Mr. Keane prepared the paper. Mr. A. B. Duvall and Mr. Keane were the executors, with power to sell. The testator gave a small legacy to the Mt. Vernon Methodist Episcopal Church, South; and gave $18,000 to Snowden Kobinson; the same to the children of Mahala Duley, and the same to Martha Collins, per stirpes; the residue to be distributed in the same way. On April 15, the testator called on Mr. Keane, and asked for the sheets on which the will had been written, and said he would not execute the will at that time, because he might be doing Eugene an injustice, and thereupon testator destroyed the paper. Mr. Keane said testator was a shrewd business man, ■that he was very careful in his instructions concerning the will, and understood the effect of the will; and Mr. Keane never ■questioned the testator’s capacity to make a will, and had never seen the testator under the influence of liquor.</p> <p>Mr. Andrew B. Duvall testified that he had known the testador for twenty years, and frequently attended to legal matters for him; that the testator came to his office April 16, 1902, and said he wanted to make his will, that he wanted to leave his property to his kinsfolk excepting Eugene; he wanted to make a legacy to the Mt. Vernon Southern Methodist Church. The testator produced a typewritten draft of a will similar in purport to his oral expression of his purpose, and asked Mr. Duvall if it was necessary to leave something to an heir you want to disinherit. The draft of a will which testator produced had such a provision, and Mr. Duvall' said it was just as well to put such a provision into the will. Testator said his property consisted of real estate, and it was unencumbered, and suggested that it would be better that the property be held together by a trustee for several years in order to work otf the trusts and handle the property to advantage, and after discussing the matter, Mr. Duvall wrote into the ■ will he prepared the direction .that the executor and the trustee should hold the property for three years unless exigencies required its sale sooner. The testator told Mr. Duvall that one of his nieces, a child of his sister Mrs. Duley, had died leaving children, and he named them, and he wanted to know if the provision he had in the draft of a will he produced, and which Mr. Duvall embraced in the final will, was sufficient to cover that; and Mr. Duvall advised him that as it was phrased in the draft which Duvall had prepared, the will would provide for the children of that niece or any other niece or nephew who might die leaving children. The testator said his only purpose in making the will, except as to the legacy to the church, was to give the nominal legacy to Eugene, and that otherwise he wanted his property to go as it would go according to law. The draft the testator gave Mr. Duvall contained the name of Mr. Keane along with Mr. Duvall as executor and trustee, and the testator said that Keane was a young lawyer friend of his. Mr. Duvall called in George, his stenographer, to whom he dictated the will, and the testator read the typewritten copy, which testator said appeared to be right. Mr. Duvall gave instructions as to the execution of the will, and the testator paid Mr. Duvall his fee and took a receipt therefor. On April 18 testator returned to Mr. Duvall’s office, and said that he had concluded that two years was long enough for the duration of the trust, and Mr. Sinclair this time rewrote the paper. After it was finished, testator said he wanted to execute the will, and Mr. Duvall’s three assistants witnessed the will, and at -testator’s request Mr. Duvall put the will iu his safe and gave a receipt therefor.</p> <p>• In March of the same year testator had called upon Mr. Duvall. He appeared disturbed about a letter from Henry Stewart concerning the debts of his deceased sister, Mrs. Atz, and said he could not understand how this sister could have been indebted to his brother, Bushrod Robinson, to the amount of $3,800, as appeared by a note held by Stewart as executor of the estate of Bushrod Robinson, and said that he had told Stewart that there was something wrong about it, and unless Eugene Robinson, the son of Bushrod Robinson, fixed the matter satisfactorily, Eugene would be the loser by it. The testator called upon Mr. Duvall before and after the time of the execution of the will, and on every occasion he was sober. Once or twice Mr. Duvall had seen the testator a little under the influence of liquor, and on such occasions would defer the transaction of business; but Duvall had never seen the testator drunk, and testified that at all times the testator’s mind was sound, in the opinion of the witness. George, Sinclair, and Schuldt, the witnesses to the will, two of whom were acquainted with the testator, testified concerning the testator’s visits and the execution of the will, and also to his sobriety on that occasion, and to the soundness of his mind then and at all times, to the extent of their knowledge.</p>

<p>Easements;, Estoppel;, Gbants op Land.</p> <p>1. Where the owner of two adjoining lots, an architect, builds.a dwelling house on each, and so constructs the houses that the porch of one encroaches about 5 feet on the adjoining lot, while the bay window- of the other projects about 1 foot over the other lot, and conveys both .houses with their improvements, ways, easements, rights, privileges, and appurtenances to different parties, the purchaser of the lot over which the porch of the adjoining house projects cannot maintain a ■bill in equity against the other grantee for a mandatory injunction compelling the removal of the porch (following Frizzell v. Murphy, 19 App. D. C. 440), — especially where it appears that the removal of the porch would injure the appearance of- the property and inconvenience the owner.</p> <p>2. Where the owner of both the quasi-dominant and quasi-servient tenements conveys the former, retaining the latter, all such continuous and apparent quasi-easements as are reasonably necessary to the enjoyment of the property pass to the grantee, giving rise to an easement by implied grant. (Following Frizzell v. Murphy, sitpra.)</p> <p>3. A grantor cannot derogate from- his own grant, while a grantee may take the language of the deed most strongly in his favor. The law will imply an easement, in favor of the grantee more readily than it will in favor of a grantor.</p>

Hearing on an apppeal from a decree of the- Supreme Court of the District of Columbia dismissing a bill in equity seeking to compel the removal of an alleged obstruction on a public alley.

The Court in the opinion stated the facts as follows: Clarence G. Heylman was convicted in the police court on an information charging that he, “being then and there the owner and possessor of certain dogs, permitted said dogs to disturb the quiet and comfort of a certain person in ill health, as evidenced by the certificate of a licensed physician,” and has been granted a writ of error to review the judgment.

<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>Hearing on an appeal from a decision of the Commissioner •of Patents by opponents of an application for registration of a trademark.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal by the opponent of an application for registration of a trademark, from a decision of the Commissioner of Patents granting the application. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia in an action to recover a tax paid under protest.

<p>Habitual Drunkards; Decrees; Decrees Pro Confesso; Specific Performance.</p> <p>1. A decree finding one to be an habitual drunkard in a proceeding under D. C. Code see. I15f [32 Stat. at L. 524, chap. 1329], for that purpose, is conclusive as to the condition of the alleged drunkard on the date of its rendition, but is not so as of a date prior thereto, although tending to show that the helpless condition must have existed for some period of time.</p> <p>2. Where a plea to a bill in equity, upon testimony taken, has been found to be false, the proper practice, in ordinary cases, is to enter a decree upon the bill as if the same had been confessed. (Following Adriaans v. Lyon, 8 App. D. C. 532.)</p> <p>3. A decree pro confesso is not a decree as of course according to the prayer of the bill, nor merely as the complainant chooses to take it, but should be made by the court, according to what is proper to be decreed upon the statements of the bill, assumed to be true.</p> <p>4. A decree pro confesso admits the facts charged in the bill, but not the conclusions drawn therefrom, nor the conclusions of law. (Following Perkins v. Tyrer, 24 App. D. C. 447.)</p> <p>5. It does not necessarily follow, because a defendant to a bill for specific performance admits the facts alleged in the bill, that the complainant is entitled to a decree as prayed. The jurisdiction of equity in such ca3es is not compulsory, but is the subject of discretion.</p> <p>6. In general, specific relief will be granted when it is apparent, from a view of all the circumstances of the particular case, that it will sub-serve the ends of justice; and it will be withheld when, from a like view, it appears that it will produce hardship or injustice to either of the parties.</p> <p>7. Where a bill for specific performance by a vendee of land shows that, within twenty days from the date of the contract of sale, a petition was filed to have the vendor declared an habitual drunkard, and he was so declared less than twenty days thereafter, and that the committee of the drunkard had been offered $825 an acre for the land sold by the vendor to the complainant for $600 an acre, the bill will be demissed without prejudice to the right of the complainant to pursue his remedy at law, if so advised.</p>

<p>Evidence; Statute of Limitations; Trover; Carriers; Lien fob Freight Charges.</p> <p>1. In an action for damages caused by the unlawful detention of the plaintiff’s property shipped over the defendant’s railroad, it is proper to admit evidence showing the cause of delay, and that the defendant used due diligence.</p> <p>2. Where an action is brought within the period of the statute of limi- ’ tations, a count added after the expiration of such period is not subject to a plea of the statute, where such count is founded on the same wrong set forth in the original counts.</p> <p>3. Trover will lie for the value of property illegally withheld under an unlawful claim for freight charges, and a demand, tender, and refusal to deliver constitute prima facie evidence of a conversion.</p> <p>4. Even if a railroad company may withhold from the owner goods shipped over its road, for the purpose of ascertaining whether the bill of lading correctly states the amount due or whether a waybill in its possession sets forth the true amount, yet it can hold the goods only for a reasonable time.</p> <p>5. Where a carrier refuses to deliver goods to the owner until the amount due for freight is ascertained, it cannot be said, as a matter of law, that six days is so clearly a reasonable time that there is no room for submitting the question of due diligence to the jury.</p> <p>6. A railroad company receiving goods from a connecting line has a lien for the freight charges, but only to the extent of the contract price as set forth in the hill of lading; and, if it claims a lien for a larger sum, it does so at its own peril.</p>