Volume 28 — Appeals, District of Columbia

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. Tbe facts are sufficiently stated in tbe opinion.

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

<p>HeauiNG- 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>

Isr ERboe to tbe Police Court of tbe District of Columbia. Tbe Court iu tbe opinion stated tbe facts as follows: This is a writ of error to tbe police court of tbe District of Columbia to review a judgment of that court finding the plaintiff in error, Harry Nelson, guilty upon an information filed against him charging him with a violation of sec. 866 of the District Code [31 Stat. at L. 1331, chap. 854].

HEARING on 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.

HEARING on an appeal by the claimants from a decree of the 'Supreme Court of the District of Columbia denying a claim to ■a part of a fund in the hands of a receiver. The facts are fully stated in the opinion.

HEARING on an appeal from a portion of a decree of the Supreme Court of the District of Columbia making distribution of a fund in the hands of a receiver appointed by the court. The facts are sufficiently stated in the opinion.

HbaRIwg 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 a suggestion by one of tbe appellees of a diminution of tbe record, and a motion for tbe writ of certiorari t'o complete tbe same. Tbe facts are sufficiently stated in tbe opinion.

<p>HEARING- on a motion by one of several appellees to dismiss an appeal.</p>

HEARING on two appeals by the petitioners from orders of the Supreme Court of the District of Columbia dismissing their petitions for the writ of mandamus. The Court in the opinion stated the facts as follows: This question comes before us upon two petitions for mandamus.

HeaeiNG on an appeal by tbe petitioners from a judgment of tbe Supreme Court of tbe District of Columbia confirming a verdict of a jury appointed to assess damages for land condemned for a sewer, and a motion to dismiss tbe appeal. Tbe facts will be found fully stated in the opinion.

HEARING on 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>IÍEARIN& on an appeal from a decree of tbe Supreme Court of tbe District of Columbia sitting as a Probate Court, overruling exception to a report of tbe auditor.</p> <p>Tbe Coukt in the opinion stated the facts as follows:</p> <p>In this appeal, which is from a decree of tbe supreme court of tbe District of Columbia overruling exceptions to tbe auditor’s report and granting letters of administration to tbe appel-lee, we have presented for our determination the question of the domicil, at tbe time of his death, of one James A. Thorn.</p> <p>It appears that letters of administration were first issued to Charles E. Thorn, one of the appellants, upon the sworn petition of said Thorn, reciting the death of James A. Thorn, at the city of Washington, District of Columbia, June 16, 1905, then of full age, a citizen of the United States, and a resident of said District; that he left surviving him as his next of kin and heirs at law his mother, the appellee, a sister, and two brothers, all save the petitioner being residents of the said District; that he died intestate, unmarried, and without any adopted child, and that he left no real estate, but left certain personal property, consisting of an interest in the estate of Columbus W. Thorn, valued at about $10,000. • The other next of kin and heirs at law waived service of citation, and requested that letters be issued to the petitioner, and such letters were duly issued to him June 20, 1905. The appellee, Sarah A. Thorn, filed, on October 9, 1905, a petition setting forth, in substance, the recitals contained in the prior petition of Charles E. Thorn, save as to the value of the interest of James A. Thorn in his father’s estate, which she places at about $19,000. She further averred that she was induced by Charles E. Thorn to consent to the petition filed by him (upon which letters were issued June 20, 1905), by reason of his representation that, under the laws of the District of Columbia, the brothers and sister of the decedent were entitled to the estate; that she had relied upon such representations because Charles E. Thorn was a member of the bar of the District of Columbia; and, having learned that she, as the mother of the decedent, was entitled to the estate, and had a primary right of administration, she asked that letters of administration issued to Charles E. Thorn be revoked, and that letters be granted to her. Upon this petition, an order to show cause why the relief prayed should not be granted was issued. Thereupon Charles E. Thorn answered the petition and the rule to show cause, admitting the allegations of the petition, other than those relating to the residence of the decedent, and that he had deceived his mother as to her rights in and to the estate of the decedent. The answer further set out that he had inadvertently stated the residence of his brother to be the District of Columbia in the petition upon which letters were issued to him. In conclusion he asked that’, as his mother appeared to be dissatisfied with his acting as administrator, the court should accept his resignation as administrator, protesting, however, against the grant of letters to his mother, upon the ground that the domicil of the decedent was in the State of New Jersey.</p> <p>His resignation was accepted; and, the cause coming on to be heard on the petition and answer, an order was made referring it to the auditor of the supreme court of the District of Columbia to determine the domicil of the deceased.</p> <p>These appellants then filed a petition setting forth that they were the brothers and sister of the decedent, and stating that they desired to enter of record their objection to the administration of his estate by the supreme court of the District of Columbia, for tlie. reason that the court had no jurisdiction of the estate, as the domicil of the decedent at the time of his death was in the town of Westfield, in the State of New Jersey. To this petition Sarah A. Thorn demurred, whereupon the petitioners moved the court to refer their petition to the auditor of the court, so that it might be considered on the reference theretofore made by the court. The petition being considered by the court, an order was made referriug it to the auditor and overruling the demurrer filed thereto.</p> <p>The auditor, upon due notice, proceeded with the reference, and considerable testimony was taken by him. This testimony was returned by the auditor with his report made to the court, and as a part thereof. The finding of the auditor was that the • domicil of the decedent at the time of his death was in the District of Columbia. Exceptions were filed by the appellants to the report of the auditor, which, so far as may be necessary, will be hereafter referred to. The cause then came on, and was heard by the court upon the auditor’s report, and the exceptions filed thereto, with the result that, after hearing counsel for all of the parties, the exceptions were overruled, and the report of the auditor was ratified and confirmed. By the same decree letters of administration were ordered to be granted to the appel-lee upon her giving a bond, and on February 23, 1906, letters were duly issued to her.</p>

<p>HeaeiNG on an appeal by property owners from a judgment of the Supreme Court of the District of Columbia, sitting as a District Court of the United States, in a proceeding by a railroad company to condemn land for railroad purposes, and on a motion to dismiss the appeal.</p> <p>The facts are sufficiently stated in the opinion,</p>

HeaeiNg 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 the alienation of the affections of the plaintiff’s husband and for criminal conversation. The Couet in the opinion stated the facts as follows: This is an action for damages for the alienation of the affections of plaintiff’s husband, and for criminal.conversation.

HbaeiNg on an appeal from an order of the Supreme Court of tbe District of Columbia, granting a motion to suspend a writ of certiorari theretofore issued, and dismissing the original and amended petitions for the writ. The facts are sufficiently stated in the opinion.

<p>HeauiNg on a motion by tbe appellee to dismiss an appeal.</p>

<p>HeaeiNg on a motion by the appellee in an interference case, on an appeal from a decision of the Commissioner of Patents, to strike out certain parts of the transcript of the record.</p>

HEARING on an appeal by tbe defendant in a prosecution for murder, from a judgment of conviction of murder in the first degree by the Supreme Court of the District of Columbia. The Court in the opinion stated the facts as follows: The appellant, Charles E. Grant, was tried under an indictment charging him with the premeditated murder of one Eva Barnes on December 16, 1905, convicted of murder in the first degree, and sentenced to death on April 21, 1906.

HbariNG on an appeal by the respondent, the District of Columbia, from a judgment of the- Supreme Court of the District of Columbia quashing a tax assessment upon a writ of certiorari. The Court in the opinion stated the facts as follows: This is an appeal from the supreme court of the District of Columbia, and involves the construction of the act of March 1, 1899 (30 Stat. atL. 923, chap. 323). The question was before the court below on certiorari.

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

HeaeiNg on an appeal by the complainants from a decree of the Supreme Court of the District of Columbia, dismissing a bill of review which sought the review of a decree in a suit for the cancelation of a deed of land alleged to have been procured by undue influence, upon the grounds of error appearing in the decree and for new matter arising subsequent thereto. The Coubt in the opinion stated the facts as follows: This is an appeal from a decree dismissing a bill of review.

HeariNG on an appeal by one of tbe defendants to a bill of interpleader from a decree of tbe Supreme Court of the District of Columbia, adjudging the other defendants to be entitled to a fund in the possession of the complaint.

HeahiNG on an appeal by the defendant from a judgment on verdict of the Supreme Court of the District of Columbia, in an action of assumpsit.

<p>HeaeiNG on an appeal by an intervening petitioner from a ■decree of the Supreme Court of the District of Columbia, dismissing his petition.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from a decree dismissing a petition for intervention in a cause in equity depending in the supreme court of the District of Columbia. The original bill in that cause was filed January 2, 1906, by Norton M. Little against the Washington Steel Cut Cereal Company and the International Trust Company, of Maryland. Therein it was alleged that the Cereal Company is a corporation organized under the laws of the State of Delaware, and having its only office in the District of Columbia, where it is engaged in the manufacture of cereals and cereal foods. Defendant trust company is a corporation of Maryland, with its principal office in the city of Baltimore, and is sued as trustee. That the cereal company was organized in the year 1902, with a capital stock of $200,000,. divided into shares of the par value of $10 each, of which there has been issued about $145,000. That on the 1st day of July, 1902, the cereal company issued bonds to the amount of $50,000, bearing interest at 5 per cent per annum, securing the same by deed of trust upon all the property of said corporation, in which instrument the said trust company is named as trustee. That about $29,000 par value of said bonds have been sold and are outstanding, bearing interest. That complainant is the holder and owner of 365 shares of the capital stock of the cereal company, and owner of $2,100 par value of bonds, and is a creditor of said company to the amount of $74.99, for which he has no security. That defendant cereal company is insolvent, some of its promissory notes have matured, and it has been obliged to borrow large sums of money from time to time in the conduct of its business. That it has available but a few hundred dollars in cash, and some unfinished stock in the mills, and its real estate; but that the interest on its bonds outstanding, amounting to about $750, was due January 1, 1906, and it is-without funds to pay the same. That it is threatened with suits at law and with attachment against its property and is liable to have all its available assets seized and wasted, if it does not prevent one creditor from obtaining advantage over others. That the real estate of the defendant consists of its plant and land, machinery and a building, which is fully described, and is entirely insufficient to pay the amount of its bonded indebtedness, which, including the amount of the bonds issued as aforesaid, will amount to about $40,000. That the bonds of said company not sold have been hypothecated for money borrowed, and the defendant company is threatened with a sale of same at auction to pay said security. That if said sale be had, defendant cannot •conduct its business, and there will be competition among its ■creditors to seize its assets, unless a receiver is appointed to take •charge of and preserve the same for the benefit of all creditors. The prayer was for the appointment of a receiver to preserve the property, and for general relief. On the same day the defendant cereal company entered its appearance and filed an answer to the bill, admitting the allegations of the same in general, it •also admitted that it Avas unable to meet its obligations and provide material for manufacture, and is therefore advised that it . is proper that it consent to the appointment of a receiver to take charge of its assets, that the same may be safely preserved and paid to those lawfully entitled thereto. The same day the court entered an order appointing' Wharton E. Lester and Douglass S. Mackall receivers of the property of the defendant cereal ■company, requiring them to enter into a bond in the sum of $10,-000 for the faithful discharge of their duties. On January 4 the receivers made a report to the court in which appears a schedule of the value of the real estate, personal property, and ■choses in action of the defendant company, which they appraised at the sum of $6,751.72. The liabilities of the company were stated to be: Capital stock issued, $155,580; bonds issued, $29,200; accrued interest on same, $750; promissory notes for which the remaining bonds of the company are held as collateral security, $4,127.58; taxes due District of Columbia, $41.89, and to the State of DelaAvare, $100; unsecured debts, $1,-766.05, — making a total liability, aside from the capital stock, of $35,235.52. They further reported that the said company had many customers, and had built up a considerable -trade, wherefore the receivers deemed it best that the plant be sold as soon as possible, in order that the trade and custom of the company may not be entirely lost to any possible purchaser. They further represented that the plant can probably be sold free from said trust, only with the consent of the International Trust Company, but that, as, under the terms of the deed of trust, the trust company can only take possession sixty days after default in payment of interest on the said bonds, and as the trust can be administered for the benefit of the stockholders more economically in this court than by said company, it would be to the advantage of all parties that the entire matter should be settled in this court. They further represented that, in estimating the value of the plant, they had taken into consideration the fact that practically the same plant was once sold at auction by order of this court for the sum of $5,000. On January 8 the International Trust Company filed an answer that the interests of the cereal company and its stockholders, bondholders, and creditors will be best subserved by an immediate foreclosure and sale, under the terms of said deed of trust, by virtue of a decree passed by the court. On the same day the said trust company filed a petition alleging the default of the cereal company in payment of its taxes and interest upon bonds. It also alleged that on the 6th day of January, 1906, at a meeting of the board of directors of the cereal company, a resolution was passed requesting the petitioner to apply for an order of foreclosure and sale of the assets of said cereal company, and that your petitioner is satisfied, unless immediate action is taken to dispose of the assets of the cereal company, great loss will be entailed upon all of the creditors thereof, by reason of the fact that the trade which has been built up by said company will be utterly lost if any delay ensues in disposing of its assets; and that it is not practicable for the receivers to attempt to carry on the business aforesaid, because of their inability to raise the necessary funds for the purpose; that, under the terms of the trust deed, your petitioner is authorized to enforce and foreclose the trust, and for that reason to apply to this court for a decree of foreclosure and sale of the same. The prayer of the bill was that all parties interested be cited to show cause why the prayer of this petition should not be granted, and that a decree of foreclosure and sale of all the property enumerated in the report of the receivers, be passed.</p> <p>The trust, made an exhibit to the petition, is in the usual form to secure the isoiie of bonds for the sum of $50,000, and providing for the retention of possession by the mortgagor until after default. In case of default in the payment of any instalment of interest, continuing for sixty days, tbe trustee shall, upon the request of one fourth of the holders of the bonds, and the furnishing of indemnity by these, take possession of the property, or may apply to a court of competent jurisdiction for the appointment of a receiver to take possession of the same.</p> <p>Exclusive right of action for the protection of the bondholders is vested in the trustee. The trustee is authorized to sell the property in case of default at public sale, after advertising the same for eight successive weeks in a daily publication in Washington and in Baltimore. The action of the trustee is made subject to the power of the majority of the holders of bonds in respect of enforcement of the trust. It was made to appear also that on January 8, 1906, the cereal company, by resolution of its directors, waived the provisions of the trust providing for the lapse of sixty days after default, before action to foreclose, and requested an immediate application to the court for a decree of foreclosure and sale after such advertisement as the court might direct. On the same day an order was passed by the court empowering the trust company to foreclose the trust and sell the property after advertisement of ten days, and to make title to the purchasers. On January 17, 1906, a majority of the bondholders, representing $32,500 in amount, requested the trust company to declare the principal of the bonds to be due, as authorized in the trust deed, which was accordingly done. On January 26, 1906, the trust company reported the sale of the land, plant, and personal property named in the trust deed, in accordance with the order of the court, for the gross sum of $5,757. The report of sale concluded with a prayer for an order confirming the sale and directing the trust company and the receivers to unite in a conveyance to the purchaser, one Norman M. Little. On the same day the court passed the said order, and referred the case to the auditor to state the accounts of the trustee, etc.</p> <p>On February 5, 1906, Mary A. Parsons, the appellant, filed a petition of intervention in said cause, in which she alleged that she is the owner of $6,600 of the bonds of the said cereal company. That the sale reported by said trustee is for a totally inadequate price, it appearing from statements attached that tlie said property is worth a far greater sum, namely, from $28,000 to $38,000. That, through her attorney, the petitioner made an effort to have the bondholders get together for their mutual protection, and appointed a meeting of the same, but only four bondholders attended the same. That your petitioner believes that between Norman M. Little, the purchaser of the property for the inadequate price of $4,900, and the bondholders signing the request of the trust company of Maryland to- declare the bonds due, there is an agreement that his purchase shall inure to their benefit and to the injury of petitioner and the owners of $11,400 worth of bonds, who, as well'as the petitioner, failed to sign said request. That the cereal company and the trust company have voluntarily entered their appearance in this court, and have waived the thirty days allowed them by the rule of court so to do, as well as the thirty additional days in which to answer; and that the confirmation of the sale at this term of the court at which the' decree was signed, without an order nisi, is improvident and contrary to- the practice recognized in equity in confirmation of sales.' ■ Petitioner prayed that the decree affirming the said sale be vacated, and that if any confirmation of the sale be entered at this term, it be nisi, and that the minority bondholders be given an opportunity to be heard before final confirmation. This petition was not sworn to. It was' accompanied, however, by what purported to be copies of two affidavits, the one made by Allen W. Mallery on February 2, 1905, and the other by Thomas Gordon on the 2d day of February, 1905, in a former proceeding against the cereal company for the appointment of receivers. The affidavit of the said Mallery represented the property and assets of said company as worth at that time about the sum of $25,615; and that of said Gordon estimated tire same at the value of about $38,000.</p> <p>On the same day the petition was heard, and dismissed, with costs. From that decree this appeal has been taken. •</p> <p>1. This is not a sale under the deed of trust, for it was not in accordance with its term's. The sale was made, if at all, by virtue of the decree of January 8, 1906, authorizing and empowering the appellee, the International Trust Company, of Maryland to foreclose. If the sale was made by virtue of this decree, there was no power in the court to ratify and confirm this sale except nisi, in accordance with the practice and custom of equity. Alex. Md. Chancery Practice, 146; Anderson v. Foullee, 2 Harr. & G. 357.</p> <p>2. The consent of all parties was not before the court, for the trust company did not pretend to have been requested to declare the principal of the bonds due by more than $32,500 in amount. In fact, they were only lawfully requested by $11,000 worth of bonds to make such declaration. This was not sufficient. Farmers’ Loan & T. Go. v. New York & N. B. Go. 44 N. E. 1051.</p> <p>3. The cestui que trust of the appellee, the International Trust Company, of Maryland, the petitioner, Mary A. Parsons, having been injured by the sale, adopted the proper course to secure her redress by filing her petition asking for a vacation of the order ratifying and confirming the sale, and praying for an opportunity to show that the price was inadequate and the sale was for the benefit of a portion of the bondholders. Edwards v. Maupin, 18 D. C. 39; Kenaday v. Edwards, 134 TJ. S. 124; Anderson v. Foulke, 2 Harr. & G. 357.</p> <p>4. If this court should by its mandate direct the vacation of the order ratifying and confirming the sale, it would be competent to show not only that the price was inadequate and the sale for the benefit of a portion of the bondholders, but also that the appellee, the International Trust Company, of Maryland, was not a necessary or proper party to the bill of Norton M. Little simply praying for the appointment of a receiver. Clark v. Bradley Go. 6 App-. H. O. 442; Beach, Receivers, sec. 131; Baker v. The Adm. of Backus, 32 Ill. 96; Kneeland v. American Loan Go. 136 H. S. 100 ; Glyde v. B. & D. B. Go. 56 Fed., 541.</p> <p>5. This was not a suit in foreclosure and could not be made so by the voluntary intervention of the appellee trust company. The decree authorizing and empowering the said trust company to foreclose under the deed of trust, and then changing the terms of the deed of trust, was improvidently allowed, and such a decree could only be passed in a case in foreclosure in which the appellee trust company was a party complainant. Kmeland v. American Loan Qo. 136 IJ. S. 100; 0., S. & Q. B. B. Co. v. Sloan> 31 Ohio St. 8; People ex rel. Port Huron & Qratiol B. Co. v. Judge of St. Clair Circuit, 31 Mich. 457; Jones, Corporate Bonds & Mortgages, sec. 428.</p>

<p>HEARING on an appeal by one of several defendants, who had been granted the right to intervene from a decree of the Supreme Court of the District of Columbia sotting aside a release of a deed of trust, etc.; on an appeal (specially granted) by the same defendant from an order requiring it, as an inter-vener, to pay one half of the costs at that time incurred; and on motions by the appellee to dismiss both appeals.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>No. 1671 is an appeal from a decree of the supreme court of the District of Columbia setting aside a release of a deed of trust to appellant’s predecessor in title, and foreclosing the trust, and ordering a sale of the property.</p> <p>No. 1674 is a special appeal from the order of the supreme uourt of the District imposing upon appellant, as intervening petitioner below, at the time of granting its petition to intervene, the payment of one half of the costs at that time incurred.</p> <p>The facts are these:</p> <p>On or about January 6, 1898, Miss Louisa D. Lovett, the adopted daughter and amanuensis of Charlotte Bostwick, of Philadelphia, trustee under the will of Emma L. Breese, deceased, sent $8,000 on the account of Mrs. Bostwick, as trustee, to E. Welsh Ashford, “Financial Agent,” real estate and loan broker, with offices at No. 1410 G street, N. W., Washington, D. C. That there had already been some correspondence between Mrs. Bostwick, as trustee as aforesaid, and Ashford, is apparent from the fact that the $8,000 was actually sent him in the communication of January 6. This money, according to Ashford’s letter of acknowledgment dated January 11, 1898, was to be invested by him for Mrs. Bostwick, as trustee. At about this time Loring Chappel, a builder of Washington, D. C., applied to William K. Ellis, a local real estate and loan broker, for a loan. Ellis, not having any clients who then desired to loan money, applied to Ashford, who agreed to make the loan. Thereupon, on January 7, 1898, Oella and Loring Chappel, her husband, executed a deed of trust, in which the said E. Welsh Ashford and the said William K. Ellis were named as trustees, to secure the payment of four promissory notes, among which was one in the sum of $2,000, and one in the sum of $400, secured on lot 64 in Oella Chappel’s subdivision of lots in square 911, as per plat recorded in liber 21, folio 69, of the records of the office of the surveyor of the District of Columbia. Each of these two notes was payable to the order of Edward E. Biggs, a mere accommodation indorser, three years after date, with interest at 6 per cent semiannually, interest and principal being payable at 1J¡.10 G. Street, N. WAshford’s office. On January 10, 1898, the day the loan to the Chappels was consummated, Biggs indorsed the note in controversy to Charlotte BostAvick, trustee under the will of Emma L. Breese, deceased, without recourse to him. On the following day, January 11, 1898, Ashford inclosed this note, with two others, the three aggregating the $8,000 previously sent him for investment, to Miss Lovett for Charlotte BostAvick, trustee. On July 13, 1898, the Chappels comeyed lot 64, subject to the encumbrance of $2,400 represented by the $2,000 note in suit and the $400 note to which reference has been made, to Bela N. Seymour, in whose name the equitable title to lot 64 stood when the notes for $2,000 and $400 respectively became due, on January 7, 1901. Charlotte Bostwick, the original trustee, died on May 6, 1899, and on January 23, 1900, Bobert S. Bright, an attorney of Philadelphia, was appointed to succeed her as trustee. Bright had previously represented Mrs. Bostwick as attorney in fact in connection Avith her duties as trustee. It appears that he also represented other estates, either in the capacity of attorney or as trustee, and that prior to January, 1898, and during the period covered in this controversy, he had several conversations with Ashford, either in Washington or in Philadelphia, and frequently corresponded with him in reference to this transaction and others. On January 2, 1900, in a letter to Ashford, Bright said: “X also received your check for $13.50, the int. on Oolver note until December Y, 1900. I also note what you say about the Smith-Arnott note for $1Y50 which you still retain. I trust there .will not be much more delay about this.” On June 29, 1900, Bright wrote to Ashford, and in the letter said: “When the Driver note is paid off you can reinvest the principal in any good safe loan paying good interest.” On October 9, 1900, Bright wrote Ashford, acknowledging receipt of a “check for $5,600.83 being principal of two notes of Charles B. Pickford for $2,Y00 each, with interest to September 14th, 1900.” On December 22,. 1900, Bright again wrote Ashford about the Colver and Smith-Arnott notes, saying: “What about the. Col-,ver and Smith-Arnott notes which you have had now for some months for adjustment?” On January 2, 1901, five days prior to the maturity of the note in suit, Ashford wrote Bright, and inclosed “certified check for $1,840.40 to pay note of Alice A. Smith and Oath. A. Arnott, $1Y50, with interest at 6 per cent from February 23, 1900, to January 2, 1901.” Ashford in this letter further says: "I believe there is in your custody a note of Oella and Loring Ghappel, $2,000, secured by deed of trust on lot 64, square 911, maturing January Y. Will you Tcindly register this note and accompanying papers as it will be paid at maturityOn the following day, January 3, 1901, four days before the maturity of the note in controversy, Bright wrote Ashford as follows: “Dear sir: Tour letter with check to pay Smith-Arnott note and interest to date ($1,840.40) was received. * * * I also inclose herewith the Oella and Lor-ing Ghappel note for $2,000, which, I am sorry, is to be paid off as yon write. Interest is paid on this note to July Y, 1900, making six months interest due July* Yth, 1901 (1901). I have no title papers with this note. Most of the notes which I hold have title papers, but some have not and this is one of those which has not. I hope the $2,400 and $2,100 notes will not be paid off. I shall be glad to extend the enclosed Chappel note at 5 per cent, as it is held in an estate in which the rate of interest does not make so much difference, provided the security is good.” On January 4, 1901, Ashford acknowledged the receipt of the $2,000 Chappel note as follows: “I have your favor of January 3d, wth $2,000 note of Oella and Loring Chap-pel, secured on snblot 64, square 911, this city, for -payment and remittance."</p> <p>On January 14, 1901, Bright wrote Ashford about certain other loans, and in the letter said: “Is the $2,000 Chap-pel note sent you on January 3rd to be paid off or extended ? I hope it can be extended, as stated in my letter of January 3 to you. You now have received three Chappel notes from me, one for $2,000, one for $2,100, and one for $2,400.” On January 5, 1901, Bela N. Seymour, the grantee as aforesaid of the Chappels, handed Ashford a certified check for $2,060, which represented the principal and interest to January 7, 1901, of the Chappel loan. Ashford, as we have seen, then had this note in his possession, with full authority from Bright, the trustee, either to receive payment thereon or to extend it. On January 7, 1901, the day the note became due, the check was paid, and the record shows that Seymour had already paid the $400 note. Seymour being dead and Ashford having absconded, our knowledge of the facts surrounding these payments must be gained from other sources and circumstances. It appears, however, that Ashford, fully authorized to accept payment on the note, appeared with a notary at the office of his cotrustee under the deed of trust, Mr. Ellis, for the purpose of executing a release, and exhibited to Mr. Ellis two notes, one for $2,000 and one for $400; that Mr. Ellis, whom the record shows to be an exceptionally particular man, and to have been familiar with the signature of the Chappels, carefully examined both notes, and observed that each was marked “Paid and Canceled.” Mr. Ellis thereupon joined Ashford in the release set aside by the court below.</p> <p>No question is made, aside from the fraud alleged to have been practised by Ashford, as to the legal sufficiency of this release. The $400 note, marked as above stated, was found •among Mr. Seymour’s papers after bis death. What became of the $2,000 note is not known.</p> <p>On January 15, 1901, Ashford transmitted to Bright the note in controversy, with an indorsement thereon extending the time of payment to January 7, 1903, with interest at 5 per cent semiannually.</p> <p>On November 4, 1902, Bela N. Seymour conveyed said lot 64 to Edward Parsons Seymour, who in turn, on October 1, 1903, conveyed the property to the Fifth Congregational Church of Washington, D. C., the appellant herein, both deeds being of record.</p> <p>The appellee, Robert S. Bright, the petitioner below, filed his original bill on February 18, 1903, against Oella Chappel, Boring Chappel, E. Welsh Ashford, William K. Ellis, Edward E. Riggs, Bela N. Seymour, and Edward Parsons Seymour, to foreclose the trust and for a sufficient decree against the Chap-pels. On April 18, 1905, leave was granted to amend the original bill by adding a prayer to cancel the release, and the amended bill was filed April 27, 1905. On April 19, a stipulation was entered into between counsel for the complainant and counsel for Edward Parsons Seymour and counsel for the Chappels and for Mr. Ellis, that the testimony already taken might stand as the testimony under the amended bill.</p> <p>On May 31, 1905, the court having announced its opinion in favor of appellee, the appellant, the Fifth Congregational Church of Washington, D. C., filed a petition for leave to intervene, alleging, among other things, the conveyance to it of October 1, 1903; that shortly after receiving this deed of conveyance it had applied, through its counsel, to the solicitor for the complainant requesting him to consent to the passage of an order making the church a defendant in the cause “subject to all equities and defenses which might exist against its grantor, the said Edward Parsons Seymour, but said request was denied that the church was advised and believed it to be doubtful whether an appeal would be prosecuted by the defendant of record, the said Edward Parsons Seymour, from the decree which was about to be entered against him. On July 13, 1905, before a final decree was entered, the petition of the church for leave to intervene was granted, and it was ordered that the church pay one half the costs then incurred. A special appeal was perfected and allowed from so much of the order of the court as related to the payment of costs by the church. The decree, on the merits, referred the cause to the auditor to ascertain the amount due on said note under the deed of trust, and the order confirming the auditor’s report was filed February 21, 1906.</p> <p>On August 4, 1905, the intervener asked leave to sever from its codefendants on the ground that they had declined to appeal, and on the same day the order granting the request was made.</p> <p>1. Ashford was not the agent of the appellee, Robert S. Bright, trustee. Mr. Bright testifies that he was not, and is corroborated by Louisa D. Lovett. Ashford always wrote of himself as the vendor of notes, and received through Ellis part of the commission paid by the Chappels for the loan.</p> <p>The letter of December 12, 1902, shows that the appellee, Bright, dealt with Ashford in the belief he represented the borrowers for Avhom he secured loans.</p> <p>The case relied upon to sustain appellant’s contention that the sending of the note to Ashford by Bright constituted the former, the complainant’s agent declares that if the money is taken to the bank mentioned as the place of payment, and there deposited by the obligor, the bank is the agent of the obligor and not of the obligee. Ward v. Smith, 7 Wall. 451.</p> <p>Ashford a vas certainly the agent of Seymour in securing the release. If Seymour had been a careful business man, and had taken up the note, as he should have done, he could have secured the release himself, but he secured the services of Ashford to get the release. The testimony and exhibits show that Ashford held himself out to Bright as a vendor of secured notes, and die complainant treated bim as such, and, in the face of the complainant’s positive denial, Ashford cannot be constituted his agent by inference. Mechem, Agency, p. 80; McGoldrich v. Willits, 52 N. Y. 612; White v. Davidson, 8 Md. 169; Fisher v. Shiller Lodge, 50 Iowa, 462; Bank v. Free, 67 Iowa, 12.</p> <p>But the complainant, Bright, is a trustee appointed by the Pennsylvania court, and as such cannot appoint an agent without the consent of the Pennsylvania court. Delegatus non po-test delegwri. Berger v. Duff, 4 Johns. Ch. 369; The California, 1 Sawy. 603. Mechem, Agency, p. 189.</p> <p>When Seymour secured the services of Ashford to get the release, he constituted Ashford, Seymour’s agent. He, then, cannot be the agent of the other side. Ins. Go. v. Eldridge, 102 TJ. S. 547; Mechem, Agency, p. 67; Copeland v. Mercantile Ins. Go. 6 Pick. 204; Raisin v. Clark, 41 Md. 158; Conn. General L. Ins. Co. v. Eldridge, 102 U. S. 547. Seymour failed to take up the note, as was the duty of a careful business man, and therefore should be the one to suffer the loss. Mc-Golrich v. Willits, 52 N. Y. 612.</p> <p>The appellee, Bright, was guilty of no conduct which enabled Ashford to commit the fraud. He had a right to presume that if the note was to be paid it would have to be surrendered, and the payor would demand its delivery. Seymour, on the other hand, did not demand the note, but demanded the release, and he gave Ashford the money on the 5th of January, 1901, with which to pay a note due on the 7th of January, 1901, instead of paying the note himself. Smith, Manual of Equity, 69; Ca-rusi v. Savory, 6 App. D. C. 344; Adsetts v. Hives, 33 Beav. 57.</p> <p>2. If appellee is entitled to foreclosure, a fraudulent release is no bar to a decree for foreclosure. Lilly v. Quick, 1 Green, O. E. 97; Banta v. Freeland, 2 McCarter, 103; Harrison v. N. J. R. R. & T. Co. 4 E. E. Green, 488; Ely v. Ely, 20 N. J. Eq. 43; Higman v. Stewart, 38 Mich. 513; Burnett v. Lyford. 93 Cal. 114.</p>

HeariNG on an appeal by tbe plaintiff from a judgment on verdict of tbe Supreme Court of tbe District of Columbia, in an action of assumpsit.

HEARING on an appeal bj tbe defendant from a judgment of the Supreme Court of the District of Columbia, for want of a sufficient affidavit of defense, in an action on a promissory note. The Court in the opinion stated the facts as follows: Appeal from judgment of the supreme court of the District of Columbia.

<p>HeabiNg on an appeal by the United States from a judgment of the Supreme Court of the District of Columbia, sustaining a demurrer to an indictment for murder.</p> <p>The Coubt in the opinion stated the facts as follows:</p> <p>This is an appeal by the United States from a judgment sustaining a demurrer to an indictment for murder.</p> <p>By way of inducement to the presentment, the indictment charged the defendants, Charles K. Evans and Harry J. O’Donnell, with robbing one Maurice J. Halloran of certain articles of property, and attempting to rob him of others, on February 1, 1901; and then proceeded to charge that on said date, in perpetrating and attempting to perpetrate the said offense of robbery, the defendants “feloniously, wilfully, purposely, and of their malice aforethought” did make an assault upon the said Halloran; and with a certain piece of wood held in the hands of said Charles B. Evans, “feloniously, wilfully, and of their malice aforethought,” did strike and wound the said Halloran upon the head, inflicting a mortal wound from the effects of which he died on February 14, 1906. The final presentment was that the defendants, “him, the said Maurice J. Halloran, in the manner and form aforesaid, feloniously, wilfully, purposely, and of their malice aforethought, did kill and murder; against the form of the statute in such case made and provided,” etc.</p> <p>The indictment is founded on section 798 of the Code [31 Stat. at L. 1321, chap. 854], which defines murder in the first degree as follows: “Whoever, being of sound memory and discretion, purposely, and either of deliberate and premeditated malice or by means of poison, or in perpetrating or in attempting to perpetrate any offense punishable by imprisonment in the penitentiary, kills another, is guilty of murder in the first degree.”</p> <p>Section 810 of the Code [31 Stat. at L. 1322, chap. 854] provides that one convicted of the offense of robbery “shall suffer imprisonment for not less than six months nor more than fifteen years.” It will be observed that the place of imprisonment is not designated. Section 934 [31 Stat. at L. 1341, chap. 854], however, provides that where one is sentenced to imprisonment for a term not exceeding six months the imprisonment shall be in either the workhouse or the jail; if the time be longer than six months and not longer than one year it shall be in the jail; but if longer than one year the imprisonment shall be in the penitentiary.</p>

<p>Criminal Law: Murder; Indictments; Moot Questions on Appeal; Pleading.</p> <p>1. Queers, whether an indictment under D. C. Code, sec. 798 (31 Stat. at L. 1321, chap. 854), defining murder in the first degree, which omits the word “purposely,” in charging the killing while perpetrating another crime, is sufficient.</p> <p>2. This court does not feel called upon to-decide moot questions.</p> <p>3. It is a safe rule, in criminal pleading, to follow the language of the statute, where there is any uncertainty in respect of its meaning.</p>

HEARING- on an appeal by tbe complainant and the sureties on an injunction undertaking given by him, from a decree of the Supreme Court of the District of Columbia, ratifying and confirming a report of the auditor, ascertaining and fixing the amount of damages sustained by the defendant for wrongfully suing out of the injunction.

HeaeiNG on the question of tbe jurisdiction of the Supreme Court of the District of Columbia, sitting as an equity court, to entertain a bill for an injunction and to pass a decree perpetuating a preliminary injunction against acts of continued trespass on land in Maryland; which question was raised by this court when am appeal by the defendants from such decree was reached for hearing.

<p>HEARING on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia, in a landlord and tenant proceeding to recover possession of leased premises.</p> <p>Tbe Court in tbe opinion stated tbe facts as follows:</p> <p>Tbis action was begun by Edward N. Richards in tbe justice court under section 20 of tbe Code, to recover tbe possession of a bouse in tbe city of Washington, known as No. 1332 Gr St., N. W., from Jacob Heroes, lessee, under tbe claim that tenant’s lease had ceased and determined. Tbe case was removed on appeal to tbe supreme court of tbe District, where judgment was rendered for tbe plaintiff.</p> <p>Tbe case was submitted upon tbe following agreed facts: On Eebruary 24, 1904, M. L. Johns and S. Louise Campbell, whose title has since been acquired by tbe plaintiff, entered into an agreement with Jacob Keroes whereby they leased him the said premises for a term of five years, upon a monthly rental of $10. The lessee covenanted, among other thing's: “That all repairs shall be paid for by him, and that he will surrender the same at the expiration of his tenancy in good order, ordinary wear and tear and damage by act of God or public enemy excepted.” There was an agreement for forfeiture of the lease and re-entry by the lessors upon the failure of the lessee to perform any of the covenants.</p> <p>There had always existed beneath the building a terra cotta sewer pipe, through which the sewage from said premises was conveyed to the main public sewer. The drain was constructed at a time when the building regulations permitted terra cotta piping. For some years prior to the execution of the lease, this piping, as the result of wear and tear caused by time and usage, had become very defective, and it was in this condition when the lease was executed and the lessee entered into possession. It was in the same condition when removed that it had been when the lease was executed. Plaintiff caused inspection of the plumbing said building to be made by the building inspector, who condemned the terra cotta sewer, and ordered that iron pipe be substituted, as called for by the then existing building regulations. Plaintiff called upon defendant to make this improvement, which he refused to do. Plaintiff thereupon had the work done with iron pipe, and presented the bill to affiant, who refused to pay upon the grounds, first, that the work done was an improvement, and not a repair; second, that his covenant to repair was to keep the house in the repair in which he found it, and, as the defect was present when he leased the house, he was not charged by his covenant with the duty of correcting it; third, that, as the defect was the result only of ordinary wear, he was not chargeable under his covenant to repair.</p> <p>About July 13, 1905, plaintiff reported to the inspector of plumbing that water was draining from some source into the cellar of premises No. 1330, occupied by plaintiff, and asked an investigation. This was made, and the inspector reported the drain as defective. July 15, 1905, notice was given to plaintiff by tbe inspector to make tbe necessary repairs and changes. Plaintiff, upon refusal of defendant to bave tbe work done, procured tbe same to be done by licensed plumbers, wbo found that the terra cotta sewer was cracked, broken, and disconnected. Tbe inspector notified tbe plaintiff that tbe terra cotta pipe could not remain or be used as a sewer, and ordered that it be replaced with cast-iron pipe, which was done. Tbe bill therefor, amounting to $121.60, was presented to defendant, wbo declined payment, as heretofore stated. September 29, 1905, plaintiff gave notice to defendant of tbe determination of bis tenancy, and ordered him to surrender tbe premises at tbe expiration of seven days from tbe day of service.</p> <p>1. Tbe tenant was not liable for cost of substituted material required by revised building regulations under covenant to pay for repairs. 18 Am. & Eng. Enc. Law, 2d. ed. p. 251; Lyon v. Creenhow, 8 Times L. R. 457; Cordes v. Miller, 39 Mich. 58J, 33 Am. Rep. 430; Ardesso Oil Co. v. Richardson, 63 Pa. 162.</p> <p>2. Tbe defect being existent at tbe time of tbe demise, the covenant to pay for repairs generally did not embrace it. IS Am. & Eng. Enc. Law, 2d. ed. p. 251; Middlehawff v. Smith, 1 Md. 329; Wood, Land. & T. ¶¶ 798, 800, 802; and Archibald, Land. & T. 176.</p>

<p>HEARING oil an appeal by the defendant from a judgment on verdict of the Supreme Court of the District of Columbia in an action for breach of a contract for the purchase and sale of grain.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>Appeal from the supreme court of the District of Columbia. This was an action brought by appellee, Emil W. Wagner, a Chicago grain broker, against appellant, Patrick T. Moran, for breach of the following contract made with appellee’s agents in the city of Washington, and confirmed by appellee in Chicago:</p> <p>Confirmation Sale.</p> <p>Chicago, Oct. 5, ’04.</p> <p>P. T. Moran,</p> <p>Washington, D. C.</p> <p>Dear Sir:—</p> <p>Deferring to wire from W. F. Brooks I hereby confirm sal© to you today.</p> <p>Cars sold 18.</p> <p>Quantity 1,400 to 1,500 bu. to car.</p> <p>Grade 2 oats.</p> <p>Price 35 for Nov. shipment.</p> <p>Destination %e. bu. more for each succeeding month.</p> <p>Via — -.</p> <p>To be shipped 2 cars per month from Nov.</p> <p>To be shipped as requested during month.</p> <p>W. F. Brooks & Co.,</p> <p>Agt’s for Wagner.</p> <p>P. T. Moran,</p> <p>E. W. Wagner.</p> <p>The amended declaration contained three counts.</p> <p>The first count was for $570, representing the difference in price of the oats for eight carloads not delivered, and resold at a less price than the price named in the contract. The second count was for $93.30, for the loss on one carload of oats containing 1,500 bushels shipped from Chicago April 5, 1905, and declined by defendant. The third count was the common count in assumpsit, for $663.30.</p> <p>At the trial the court directed the jury to return a verdict for plaintiff upon the first count, to which ruling defendant excepted.</p> <p>Upon the second count the court instructed the jury, in part, as follows:</p> <p>“Now, the question in controversy is the quality of the oats in that car. If this contract was made with reference to the grading of the oats by the Illinois system of inspection, both parties would be bound by it. If a mistake was made, they would have to make claim against that department. That depends upon whether this contract was made with respect to such custom. If it was, that inspection certificate would be binding so far as this car was concerned. It is not contemplated that these oats would have be perfectly clean. They might not be such oats as a retail dealer would give to his customers, and there is evidence that one dealer cleans all of his oats. If they were not up to No. 2 grade, and were not bought with an understanding that the inspector’s certificate should be binding on both parties, you must determine what kind of oats they were. If you find they were not up to this grade, that they were No. 3, or contained more dirt than they ought to have, then the defendant is entitled to that, and you should leave out of your verdict the amount claimed in the second count.”</p> <p>The defendant requested, among others, the following instructions :</p> <p>“If the jury find from the evidence that the oats in car No. 8097, shipped by the plaintiff to the defendant under their contract in evidence, were not No. 2 oats, but were of an inferior grade or quality, the defendant had a right to reject said oats and rescind said contract, and their verdict must be for the defendant.</p> <p>“If the jury find from the evidence that the oats in ear No. 8097 shipped by the plaintiff to the defendant under their contract in evidence were not No. 2 oats, but were an inferior grade or quality, the defendant had a right to reject said oats and rescind said contract, if he acted promptly and in good faith.”</p> <p>These instructions were denied, and exceptions duly noted.</p> <p>The jury, under the court’s instructions, returned a verdict for plaintiff upon the first count, and found for the defendant upon the second count.</p> <p>The November, December, January, and February shipments were received and paid for by appellant, as was the first carload of the March shipments. The February shipments and the first March shipment had sight drafts attached, and were paid for before examination. Complaint was subsequently made as to the quality of these shipments, and a small rebate allowed appellant. The second March shipment, car No. 8097, reached Kosslyn, Virginia, April 19, 1905, and appellant at once caused an examination to be made of the oats contained in this car, to determine their quality. Independent examinations were made by his employees, who carried samples to him, by an inspector, and an assistant inspector of the Washington Grain Exchange, an incorporated body of grain dealers, and by other grain dealers of Washington, all of whom testified at the trial that the oats were not No. 2 oats in that they contained an excessive amount of dirt. The appellant, after satisfying himself that the oats in this car were not what the contract demanded, despatched the following, letter to appellee on the day following the arrival of the car at Kosslyn:</p> <p>•Office of P. T. Moran, Wholesale Dealer in Flour, Grain, and Feed, 3259-3261 M. Street, Northwest.</p> <p>Phone 105 West. Washington, D. C.</p> <p>April 20, 1905.</p> <p>E. W. Wagner, Esq.</p> <p>Gentlemen:—</p> <p>I regret very much that I will be compelled to carieel balance of oat contract, owing to the dirty condition of all the goods you have been shipping, there is a car on track this a. m., which is not any better than the previous cars, which I complained of. I can furnish you sworn statements, if you require them, from a number of my customers, who refuse to get any more oats from me because of the dirty condition of the goods I furnished them which you shipped me. I know you will understand I tried to be fair with you, and gave you every opportunity to furnish me clean oats, but I cannot continue to let all my customers get away from me.</p> <p>Yours truly,</p> <p>P. T. Moran.</p> <p>To tbis letter appellee replied and suggested that the appellant reconsider his decision not to accept further shipments, but appellee received no response to his letter.</p>

HeaeiNg on an appeal by tbe defendant from an order of tbe Supreme Court of tbe District of Columbia dismissing bis petition for tbe writ of babeas corpus, discharging tbe writ, and remanding bim to tbe custody of tbe United States marshal.

HbabiNG on an appeal by the defendant from a judgment on verdict of the Supreme Court of the District of Columbia in an action on a contract of reinsurance, a demurrer to the declaration having been previously overruled.

<p>Public Lands; Mandamus.</p> <p>The administration of any particular grant of public land is wholly and absolutely within the jurisdiction of the Commissioner of the General Land Office, under the supervision of the Secretary of the Interior, in the absence of any specific provision to the contrary.</p> <p>The writ of mandamus will not lie to control the exercise of the judgment and discretion vested in the Secretary of the Interior, in the matter of delivering to the relator a certificate for entry and location upon the public lands, where, in refusing to deliver the same, he construes statutes which, the relator claims, give him the right to locate any unlocated part of an original grant of 640 acres, as having given to the original grantee only the land claimed and actually settled upon by him, not to exceed 640 acres, and under which the claim was fully satisfied when the settler located upon the land he selected, although it was of less quantity than 640 acres.</p>

<p>Amendments; Pleas in Abatement; Objections and Exceptions; Appeals. .</p> <p>1. Qucere, whether D. C. Code, see. 399 (31 Stat. at L. 1252, chap. 854), relating to amendment of pleadings, modifies the rule of the common law, that the finding in favor of the plaintiff, of an issue of fact raised by a plea in abatement, entitles the plaintiff to a judgment on the merits.</p> <p>2. An objection will not afterwards avail the party making it, unless it it states the grounds upon which it is based, and points out clearly the errors complained of, in order that the court may be given an opportunity to correct them.</p> <p>3. Where, after an issue made by a plea in abatement is found in favor of the plaintiff, leave is granted to the defendant to plead to the merits in twenty-four hours, upon payment of all costs, “to which the plaintiff notes an exception” and thereupon pleas in bar are filed, issue is joined thereon, and there is a verdict and judgment for the defendant, and the plaintiff appeals, — an assignment of error to the effect that the court erred in not entering a judgment in appellant’s favor, and assessing damages after the finding of the issue upon the plea in abatement in his favor, cannot be sustained, as the exception is too general, there being nothing to show whether it was to the substance of the ruling, or to the time given within which to plead over, or to the terms imposed.</p>

HeabiNG on au appeal by the caveators from an order of the Supreme Court of the District of Columbia sitting as a court of probate, admitting a will to probate, after the trial of issues on a caveat. The Court in the opinion stated the facts as follows: This is an appeal from a judgment admitting to probate the will of Loraine Lipphard, who died December 9, 1903.

HeasiNg 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.

<p>HbaeiNg on an appeal by tbe plaintiff from a judgment on .a verdict of tbe Supreme Court of the District of Columbia, in an action to recover damages from a street railway company for the alleged unlawful ejection of tbe plaintiff from a car of the defendant.</p> <p>Tbe Court in the opinion stated tbe facts as follows:</p> <p>This is a suit instituted by the appellant, Frederick Short-sleeves, against the appellee, the Capital Traction Company. The declaration, which is in trespass, charges that the appellant was unlawfully ejected from one of the appellee’s cars on June 17, 1905, by the conductor of the car, who refused to accept a valid transfer which the appellant' had received from the conductor of a Pennsylvania avenue car, to the F and G street branch of the appellee. -The appellee filed two pleas, the general issue and a plea in confession and avoidance, alleging that appellant was ejected from an F and G street car because he boarded it at Fifteenth street and Pennsylvania avenue, and presented for his fare a transfer from the Pennsylvania avenue line, which was not good at that point, and which was good to transfer ajipellee from the Pennsylvania avenue line at the point of change to the line punched, and the point of change was ,Seventeenth street at Pennsylvania avenue, Northwest; and the conductor refused to receive such transfer, and demanded the appellant’s fare, which the latter refused to pay; whereupon the conductor, using no more force than was necessary, removed the appellee from the car. Upon the first plea issue was joined, to the second a replication de injuria was filed, and upon it issue was joined.</p> <p>After trial the verdict of the jury was for the appellee, and from judgment rendered thereon the appellant took this appeal.</p> <p>The appellee’s Pennsylvania avenue line starts at the Navy Yard, goes along Eighth street, Southeast, to Pennsylvania avenue, and then follows this avenue to Georgetown, where it runs along M street to Thirty-sixth street. The appellee’s line called the F and G street line, starts from the eastern end of Pennsylvania avenue and goes along the avenue to Seventeenth street, Northwest; thence along Seventeenth street to G street; along G street to Twenty-fifth; along Twenty-fifth street to Pennsylvania avenue; and thence runs on that line to Thirty-sixth street. Going westward from Eighth street, Southeast, the two lines use the same tracks on Pennsylvania avenue as far as Seventeenth street, Northwest, and this avenue, and from Twenty-fifth street and the same avenue to the end of the route.</p> <p>To persons wishing to transfer from a Pennsylvania avenue car a green transfer is given, ivhich states on its face that it is “good for transfer of one passenger from Pennsylvania avenue line at point of change to the line punched, and until time canceled in margin. Subject to the rules of the company.”</p> <p>On June 17, 1905, appellant was a passenger traveling westward from the Navy Yard, on a Pennsylvania avenue car. About Twelfth street, the conductor gave him a green transfer for the P and G street line, which was punched on the line in the transfer reading, “To Seventeenth street at Pa. avenue.” He left the car at Fifteenth street and the avenue, and boarded an P and G street car, which happened to be the next car going westward. Where Fifteenth street and New York and Pennsylvania avenues meet is the proper transfer point from cars running west on Pennsylvania avenue to the Fourteenth street line, and vice versa, and Seventeenth street is the proper transfer point to an F and G street car for one going westward on a Pennsylvania avenue car; and, as we have said, the green transfer received by the appellant was punched on the line reading, “To Seventeenth street at Pa. avenue.”</p> <p>The facts stated are undisputed. The appellant and the conductor differ as to what followed. According to the appellant, the conductor did not ask him for his fare until the F and G street car, whereon he was riding, reached Seventeenth street. He then proffered the green transfer, and he was told by the conductor that it was not good, and that he would have to pay a fare or be put off. Some argument between them consumed time, and the car had run from Seventeenth into G street before the appellant was ejected by the conductor. While the appellant was on the car he told the conductor he had money and tickets. According to the conductor, he asked the appellant for his fare just as the car was turning the curve at Fifteenth street and New York avenue, opposite Kiggs bank, and the car was a two-minute run distant from the Seventeenth street transfer station. Appellant proffered the green transfer, and the conductor told him it was not good at that junction, and that he would have to pay a fare or get off. He refused to do either, and the conduct- or continued talking with him, trying to get his fare, all the way to Seventeenth street. When finally be refused to pay or .get off, the conductor pulled the bell to stop when the car got -down on Seventeenth street. It stopped around the corner on G street, opposite the Mills building, and the motorman went back to the appellant, who, saying he wanted to see what was right, got off. The conductor did not get the transfer from the appellant, and didn’t look to see how it was punched, as it was a Pennsylvania avenue transfer. He ejected the appellant because he had not paid his fare from Fifteenth to Seventeenth street. Nnder the court’s instructions, the verdict was for the appellee, as we have said.</p> <p>1. Ambiguous clauses in contracts are construed most strongly against the party using them. That portion of the transfer ticket delivered to the appellant, which reads, “To Seventeenth ■street,” may reasonably be construed to mean “To the F and G •street line,” or to “A car going along Seventeenth street and G street;” and the words, “At Pennsylvania avenue” may reasonably be construed to mean “anywhere on Pennsylvania avenue.” So that a reasonable construction of the transfer ticket would be, ■“To the F and G street line anywhere on Pennsylvania avenue.” Lawson, Oontr. sec. 389. Construction most favorable to passenger preferred in determining meaning of ticket. Baldwin, Am. Eailway Law, p. 291. Construction liberal in favor of public if issued in pursuance of a special corporate duty. Indiana B. ‘Go. v. Hoffman (Ind. App.) 69 N. E. 402.</p> <p>2. The appellant was not presumed to know or required to understand the many words, figures, symbols, spaces and abbreviations on the transfer ticket. Brie B. B. Co. v. Winter, 143 U. S. 69; Scofield v. Pennsylvania Co. 112 Fed. 856; Hufford v. B. Co. 64 Mich. 631, 31 N. W. 544; Ellsworth v. C. B. & Q. B. Co. (Iowa) 63 N. W. 581; Lawshe v. Tacoma B. & Power Co. YO Pac. 118; Indianapolis St. B. Co. v. Wilson, 66 N. E. 951; B. Go. v. Bather, 21 S. W. 951; Dagnall v. Southern B. Go. 48 S. E. 97; O’Bowrke v. Citizens B. Go. 52 S. W. 872; Trice v. G. & O. B. Go. 21 S. E. 1022; Amback v. N. Y. Gent. B. Go. 42 Am. Bep. 293.</p> <p>3. By-laws are void that are unreasonable and oppressive and contrary to the laws of the land and general public policy. Wood’s Eield Law of Corporations, secs. 263, 268, and cases cited; Potter, Corporations, sec. 28. The appellant was provided by the appellee with a proper transfer ticket, the validity of which is admitted by appellee, and “was good,” and similar to transfers accepted from other passengers in payment of fare for the ride from the Seventeenth street junction and transfer point with Pennsylvania avenue over the F and G street line, and was evidence of the contract entered into between the appellant and appellee. The appellant was upon the proper car and within the time limit. A by-law impairing the obligations of contracts is void. Angelí & A. Corporations, sec. 333, and cases cited; Potter, Corporations, sec. 82. A by-law cannot be enforced by avoiding any bond or covenant made in contravention of it, or by disfranchising the offender. Angelí & A. Corporations, sec. 362, and cases cited; Potter, Coporations, secs. 81, 82. The general mode of enforcing the penalty of a by-law is by bringing an action of debt or assumpsit to recover it. An-gelí & A. Corporations, sec. 363, and eases cited; Potter, Corporations, see. 82.</p> <p>4. The contract (evidenced by the transfer ticket) could not be avoided by the appellee,-after starting the car from the junction and transfer point at Seventeenth street on Pennsylvania avenue going over the E and G street line, by reason of the fact that the appellant had not paid the additional fare demanded of him by appellee for the ride from Fifteenth to Seventeenth streets on Pennsylvania avenue, which was at the time of ejection of appellant a past and completed transaction. When ejected the appellant was entitled to ride on his transfer ticket, which in any event was good from the transfer point at Seventeenth street on Pennsylvania avenue. “At most, the appellant was a debtor to the appellee for the amount of his fare, and that debt could be enforced against him by the same remedies which any creditor bas against Ms debtor.” Lynch v. Metropolitan Elev. R. Go. 90 N. T. 77; Elliott, Railways, p. 2508 (4).</p> <p>5. Tbe contract to carry tbe appellant over tbe E and G street line cannot be infringed or impaired by any rule of tbe appellee, or by any mistake or default of its servants. In any case tbe appellee should have ejected appellant between Fifteenth and Seventeenth streets, where it claims appellant was not entitled to ride on his transfer ticket. Com. v. Potver (Mass.) 41 Am. Dec. 475, 66 N. E. 960. Tbe appellee, by its failure to eject the appellant between Fifteenth and Seventeenth streets on Pennsylvania avenue, waived its alleged right to eject him anywhere, since the appellant had a valid transfer ticket over the F and G- street line, acknowledged by appellee to be good from the Seventeenth street transfer point over the latter line. 29 Am. & Eng. Ene. Law, p. 1105 (2) and cases cited; Pence v. Langdon, 99 IT. S. 578; Nellis, Street Surface Railways, 432, 441. The' appellee admits that the ejectment of appellant was not because he did not have a valid transfer ticket for the ride he was taking when ejected, but claims and admits that the appellant was ejected because he had not paid his fare for the ride taken from Fifteenth to Seventeenth streets on Pennsylvania avenue. Ap-pellee cannot violate its contract, evidenced by the transfer ticket. O’Rourlee v. R. Go. 52 S. W. 872; Lawshe v. Tacoma R. Go. 70 Pac. 118; Erie R. R. v. Winter, 143 U. S. 75; Frederick v. M. H. & O. R. Go. 37 Mich. 342.</p> <p>1. There is no pretense in the testimony that appellant was given a transfer other than he asked for, or that he was told the transfer point was other than that punched or indicated on the transfer. Had such been the case, he would yet have been unable for that reason to maintain an action of trespass for ejection, under the decisions of this court. Baggett v. B. & O. R. R. Go. 3 App. D. 0. 522; Orowley v. B. B. Go. 185 Mass. 279; Brown v. B. B. Go. (Mich. 1903) 96 N. W. 925; Garrison v. B. B. Go. 97 Md. 347; Schaun v. B. B. Go. 97 Md. 563; B. B. Go. v. Stocksdale, 83 Md. 245; Kiley v. B. B. Go. 189 Ill. 384; Hancock v. B. B. Co. (Efy. 1905) 85 S. W. 210; Parish v. B. B. Go. 90 N. T. S. 1000; B. B. Co. v. Hardesty, 94 Md. 666; Torton v. B. B. Co. 54 Wis. 234; Petrie v. B. B. Go. 42 N. J. L. 449; Percy v. B. B. Go. 58 Mo. App. 75 ; Poulin v. B. B. Co. 52 Fed. 198; Bradshaw v. B. B. Co. 135 Mass. 407.</p> <p>2. A passenger can be properly ejected from a car for nonpayment of past fare though tendering fare from place of ejection. Pennington v. B. B. Go. 62 Md. 95; Manning v. B. B. Go. (Ala.) 16 L.K.A. 55; Swan v. B. B. Go. 132 Mass. 116; Stone v. B. B. Go. 47 Iowa, 82; B. B. Co. v. Adams, 60 Ill. App. 571. No authorities to a contrary effect have been found by counsel. Even if any court had held that a person after being' expelled had a right to continue upon the same car by getting on afresh, and making a new contract by tendering a valid fare or transfer, yet the appellant in the present case made no effort to re-enter the car. It should also be remembered that the appellant while on the car told the conductor that he had both money and tickets.</p> <p>3. The fact that appellant never changed anywhere else than at Fifteenth and Gr Streets does not prove a custom. It is not even attempted to be shown that any F and Gr street line conductor ever took from him a Pennsylvania avenue transfer before the car got to Seventeenth street, or knew that he go on the car before the proper transfer junction was reached. Even had this been shown, the question and answer would still have been incompetent without proving a waiver of the conditions of the transfer by the proper officers of the company. Hill v. B. B. Go. 63 N. Y. 101, 104; Johnson v. B. B. Go. 46 N. H. 213, 222. The fact that invalid tickets or transfers had been accepted by other conductors, even if shown, would have no probative force. Hill v. B. B. Co. 63 N. Y. 101, 104; Brown v. B. B. Go. (Mich. 1903) 96 N. W. 925; Schaun v. B. B. Go. 97 Md. 563; B. B. Go. v. Hardesty, 94 Md. 666. Custom must be uniform, certain, definite, and known, or so notorious that it would have been known to any person of reasonable prudence who dealt with its subject with the exercise of ordinary care. B. B. Co. v. Lindeman, 143 Fed. (Circuit Court App. 8th Circuit), 946 (advance sheets), quoting several IJ. S. Supreme Court and other cases.</p>

<p>HEARING on a petition for the writ of mandamus to one of the justices of the Supreme Court of the District of Columbia requiring him to show cause why the writ should not issue, and his return to the rule issued on such petition.</p> <p>The facts are stated in the opinion.</p>

HEARING on an appeal by the complainants from a decree of the Supreme Court of the District of Columbia overruling exceptions to a report of the auditor distributing the proceeds of the real estate of an intestate. The Court in the opinion stated the facts as follows: In this District, Fannie L. Berry, a widow, died in August,. 1904, seised in fee of an estate by purchase in several parcels-of real estate.

HEARING ón 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 possession of leased premises.

<p>HEARING on an appeal from an order of tbe Supreme Court •of the District of Columbia holding a Probate Court, overruling •exceptions to and confirming a report of the auditor.</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 holding a probate court, overruling exceptions to and confirming the auditor’s report.</p> <p>Priscilla E. Payne, widow, died July 25, 1904. She was •survived by five children, and left the following will:</p> <p>Washington, D. C., Sept. 6, 1894.</p> <p>Know all men by these presents that I Priscilla E. Payne of Washington District of Columbia being of sound and disposing mind and memory do make publish and declare this instrument to be my last will and testament I give, devise, and bequest all my real property described as follows lot “39, square 55,” situated on Dumbarton Avenue West Washington “and lot” 79 square 72, situated on Dumbarton Avenue West Washington;” this property to be sold one year after my death and the proceeds to be divided equally between my children “John E. Payne,” “Lorraine E. Holder” “ Harry S. Payne,” “Walter W. Payne,” “Lily May Payne.”</p> <p>I hereby appoint my son, John E. Payne, Executor of this will without bond.</p> <p>In witness whereof I hereunto set my hand and seal this Sixth •day of September, a. d. 1894.</p> <p>Priscilla E. Payne.</p> <p>In October, 1898, the son Walter having previously expressed an intention to go away, his mother, to enable him to purchase a half interest in a hotel at Upper Marlboro, Maryland, and thereby remain comparatively near her, borrowed from the American Security & Trust Co. $1,100, giving as security a deed of trust on part of her District real estate. The proceeds of this loan, amounting to $1,031.30, she turned over to Walter, taking from him no evidence Avhatever of indebtedness. With this money he in fact purchased a half interest in said hotel. In June, 1902, Mrs. Payne borrowed from the Washington Six Per Cent Permanent Building Association the sum of $1,800, giving the same security as before. Out of this second loan she liquidated her indebtedness to the American Security & Trust Company, and turned over to Walter the balance, $539.15, for use in his business. She took no security or evidence of indebtedness from him for this amount. She subsequently borrowed further sums from the First Co-operative Building Association of Georgetown, and turned over to Wal- ' ter, without evidence of indebtedness, the proceeds of these loans, aggregating $645.</p> <p>After her death her will was duly admitted to probate and record, and letters testamentary issued to John E. Payne on September 6, 1904. Gn March 21, 1905, the executor filed “an inventory of money and debts due to deceased,” wherein he stated that W. W. Payne was indebted to the estate in the sum of $2,588.75.</p> <p>On November 26, 1904, four months after the death of his mother, Walter W. Payne executed to J. Barton Miller, appellant, in consideration of $10, a deed of his right, title, and interest in and to one undivided fifth of all the real, personal, and mixed estate of which the said Priscilla B. Payne died seised and possessed.</p> <p>In accordance with the direction of the will, the real estate was sold, the heirs, however, executing the deeds, Miller signing for Walter. The proceeds of the first sale were retained by the executor, and, some contention having arisen as to the rights of Miller, the proceeds of the second sale were placed in the hands of Mr. Jesse H. Wilson and Mr. Smith Thompson, Jr., as trustees, to be held until Miller’s rights should be determined. On November 13, 1905, the court referred the matter to the auditor for the purpose of stating the account of the executor, and of making distribution pf the estate to the parties entitled thereto, and in so doing to hear evidence on behalf of the interested parties. Testimony was taken, and the auditor filed his report on March 31, 1906. In this report, after setting forth the facts surrounding the procurement by Mrs. Payne of the above sums of money for Walter, the auditor said:</p> <p>“These several deliveries of money by the testatrix to the said Walter W. Payne were made several years after the making of her will, and the proof taken in this reference clearly establishes her intention that these deliveries were intended as advancements on account of his share in the estate, and to be adjusted in such manner as to equalize the distributive portions of all the devisees. It is further established that Walter was informed of that intention and condition by the testatrix, and after her death the making of the said advancements was admitted by him. * * * Upon the conditions appearing in tire proof and in the records of the case, I feel bound to find that J. Barton Miller, in accepting a conveyance of the interest of Walter W. Payne, took it charged with advancements made by the testatrix, and I have stated the distribution in this account accordingly.”</p> <p>1. The will does not operate a conversion. Ciarle v. Hamilton, 8 Mackey, 428. But even if the will did effect an equitable conversion, it is clearly within the power of the beneficiaries to reconvert, and this they did; for, instead of allowing the executor to sell, they themselves sold. Craig v. Leslie, 3 Wheat. 563. Iteconversion is that imaginary process by which a prior constructive conversion is annulled and the converted property restored, in contemplation of equity, to its original state. I A. & E., p. 480.</p> <p>2. There was no advancement, either of realty or personalty, because the doctrine of advancement can only be invoked in cases of intestacy. This is settled by eases to be cited, must be so on principle, was so prior to the Code, and is so affirmatively provided in sees. 379 and 959. 1 A. & E. 761, Stewart v. Pat-■tison, 8 Grill, 46.</p> <p>3. There was no ademption. Sec. 1630 of the Code is unfortunately inaccurate in speaking of a satisfaction of a legacy because tbe term ex vi termini imports an obligation on tbe part of a testator of which be can only relieve bimself with tbe assent •of tbe other party, so that tbe statutory provision would be void if construed according to its letter. What is really sought to be accomplished by sec. 1630 is to apply tbe well-known doctrine of ademption to all legatees, where competent proof shows such was tbe intention of tbe testator. Here a question arises whether, this will having been published before the Code went into operation, its interpretation can be controlled by it. We insist that it cannot be, but assuming it can be, we have not in this case the essential elements of an ademption. Ademption by portions occurs when a testator, standing in loco parentis, makes a gift to his legatee of a certain and substantial amount, substantially identical in kind with a prior bequest, without direction in the testament. 1 A. & E. 613. The expression in loco parentis ought really to be m loco patris, because the doctrine is never applied except where the testator owed a legal duty to provide for the legatee. A mother is not within the rule. 1 Am. & Eng. p. 615. Bennett v. Bennett, L. R. 10 Oh. Div. 474. In this case the competent proof is clear that there was no gift. If it shows anything, it shows loans. The device is uncertain, being of a residue. Davis v. Whitaker, 38 Ark. 449; Roper, Legacies, 377. It is not ejusdem generis. We must test this ■question of identity by what the testatrix knew. She did not foresee that technical lawyers would talk about conversion in respect of her will. She understood that she had devised an interest in the real estate to her son Walter, and so she had, for a ■devise of the proceeds of land is a devise of the land. Clark v. Hamilton, supra. If she loaned her son any money, she understood thereby that he became her debtor, but there is no proof that she loaned him money. There is no proof that she adeemed, not only for lack of all the requisites, but because there is no •competent proof of any intention to advance. Her alleged loose declarations made long after the acts are not competent. Harley v. Harley, 57 Md. 340. This case is conclusive, and if Graves v. Spedden, which will he quoted contra were in point, which it is not, Harley v. Harley overrules it, and is in every respect a better-reasoned case. These declarations are also inadmissible, being rank hearsay. Counsel for the executor, feeling the force of this, practically concede that they must contend and establish that, if Walter was indebted to his mother when she died, that debt was a prior lien upon his interest under her will and paramount to a conveyance by him, and they attempt to base this contention upon the law of set-off. Set-off relates to mutual debts, it is true, but the fact of the existence of a debt from plaintiff to defendant was no defense to an action by the plaintiff prior to the statutes of set-off, and could not be availed of as a defense since such statutes, unless pleaded. United States v. Ford, 6 Wall. 488; 25 A. & E. 489. It appears in this case that the first intimation of any claim of an indebtedness from Walter was when the executor filed his inventory of debts, which was in March, 1905. By that paper the representatives of these objectors, acting for them, elected to treat these claims as loans, and cannot now be heard to claim otherwise. P. W. and B. B. B. v. Howard, 13 How. 337; Davis v. Wahe-lee, 156 U. S. 680.</p> <p>4. When one purchases from a devisee, he is only bound to ascertain whether the personalty is sufficient to pay the debts of the testator. He is not bound to inquire whether the devisee is indebted to the estate or has received advancements. Gibson v. McGormiclc, 10 Gill & J. 65. This is peculiarly true in this case. The executor waited nearly a year before he disclosed on the record any purpose to assert any claim against Walter. He might have sued him, and ought to have done so, if he thought he could prove his case, which the attempted proof shows he could not have done. He encouraged Miller to permit payment of proceeds of sale into the executor’s hands and into certain trustee’s hands, and gave no hint of his purpose, and he and the others for whom he acts, having thus lulled Miller into security and led him to change irrevocably his status and part with the potent weapon of record, title by deed, now spring these inconsistent claims of ademption and set-off, and attempt to deprive him of his rights as a bona fide purchaser for value, without notice. This course of conduct does not meet with favor in an equity court. See Danger field v. Williams, 26 App. X). C. 508.</p>

<p>HeaeiNg 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>

• HeaeiNG on an appeal from a decision of the Commissioner •of Patents in a trademark case. The facts are sufficiently stated in the opinion.

HeaeiNg on an appeal from a decision of the Commissioner of Patents rejecting certain claims in an application for tire reissue of a patent. Tbe facts are sufficiently stated in the opinion.

<p>HEARING on an appeal from a decision of the Commissioner of Patents in an interference proceeding.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an interference proceeding between rival applicants for the invention of an improved gas engine, the issue in which has been defined in twenty-two counts, as follows:</p> <p>“1. A plurality of compressing chambers and separate explosion chambers, free connected piston heads in the explosion chambers, and means for supplying explosive charges from the compressing to the explosion chambers, and firing the same to propel said piston heads reciprocally in both directions.</p> <p>“2. A plurality of compressing and explosion chambers, free piston heads therein, positively connected for mutual reciprocation, means for supplying explosive charges to the compressing chamber, transferring the charge to the explosion chamber, and firing the same therein to propel the piston heads reciprocally in both directions.</p> <p>“3. A plurality of explosion chambers each having inlet and exhaust ports, free piston heads in said chambers positively connected for mutual reciprocation to open and close said ports, and to supply explosive charges to said chambers through said inlet ports, means for firing said charges, and a free power transmitting element actuated by the piston heads.</p> <p>“4. Separate charge compressing and explosion chambers in pairs, free piston heads, one for each pair, means positively connecting the piston heads for mutual reciprocation, a free power transmitting element connected with the piston head, and means for causing the compression and explosion of a charge by and against each piston head at each complete reciprocation.</p> <p>“5. The combination with separate charge compressing and explosion chambers arranged in pairs, of free piston heads, one for each pair, means positively connecting said piston heads, and means for causing the compression and explosion of a charge by and against each piston bead at each complete reciprocation.</p> <p>“6. In an explosion engine, a body provided with separate charge compressing and explosion chambers, a free piston between said chambers, and a free power transmitting element connected with the piston.</p> <p>“7. A body having separate charge compressing and explosion chambers in pairs, .supply ports, each connecting a compression chamber with an explosion chamber, an inlet for each compression chamber and an exhaust port for each explosion chamber; free piston heads for said pairs respectively, positively connected for mutual reciprocation, each closing the supply and exhaust ports of its explosion chamber during compression and explosion; means for causing explosions for propelling the pis-. ton heads respectively, and a free power transmitting element connected with the piston head.</p> <p>“8. A body provided with a plurality of separate charge compressing chambers and explosive chamber respectively, free piston heads therein, positively connected for mutual recipro-cations, and free power transmitting element connected with the piston heads.</p> <p>“9. A body provided with a plurality of aligned separate ■ charge compressing chambers and explosion chambers respectively, axially aligned free piston heads in said chambers, positively connected for mutual reciprocation, and a free power transmitting element connected with the piston heads and arranged in axial alignment with the chambers.</p> <p>“10. A body provided with a plurality of aligned separate-charge compressing chambers and explosion chambers respectively and a bearing.; free piston heads in the chambers, an axially movable element in the bearing, and means for positively connecting the element with the piston heads.</p> <p>“11. Separate charge compressing and explosion chambers,, piston heads therefor, positively connected for mutual reciprocation and having variable termination of stroke at both ends; means for supplying explosive charges to said explosion chambers through said compression chambers, and means for firing the charges in each explosion chamber when the piston head therefor is within the zone of its stroke termination.</p> <p>“12. A plurality of axially aligned close-ended separate charge compressing and explosion chambers in pairs, a free piston head for each pair, a connector positively connected with said piston heads, and a free power transmitting element connected with the connector.</p> <p>“13. Explosion chambers, means for supplying unignited explosive charges of gas or vapor to and firing the same in said chambers, free piston heads in said chambers rigidly connected for mutual reciprocation, a free power transmitting element connected with said piston heads, and a guide for said clement.</p> <p>“14. A casing, a cylinder, a piston therein, a second cylinder, a piston therein, a piston rod connecting said pistons, means for holding a tool connected to said piston rod, means to cause an explosion of gases against first one and then another of said pistons to reciprocate the same, said cylinders being connected to said casing, said casing being slidably mounted in a frame, and means to slide said casing along said frame.</p> <p>“15. A plurality of cylinders, each of said cylinders containing a piston, said pistons being connected, means for connecting a drill or other tool to said pistons, means for causing an explosion of gases against first one of said pistons and then against another of said pistons to reciprocate the same, a casing, said cylinders heing mounted in said casing, a frame, said casing being slidably mounted in said frame, and means to move said casing along said frame.</p> <p>“16. A plurality of cylinders, each of said cylinders containing a piston, said pistons being connected, means for connecting a drill or other tool to said pistons, means for causing an explosion of gases against first one of said pistons and then against another of said pistons, means for cushioning said pistons throughout the length of their stroke, a easing, said cylinders being mounted in said casing, a frame, said casing being slidably mounted in said frame, and means to move said casing along said frame.</p> <p>“17. Two pistons connected by a piston rod and arranged in their respective cylinders, means for connecting a drill or tool to said piston rod, means to cause an electric spark and explode a gas alternately against each piston at the end of each stroke, a casing, said cylinders being mounted in said casing, a frame, said casing being slidably mounted in said frame, and means to move said casing along said frame.</p> <p>“18. A plurality of oppositely arranged cylinders, a piston in each cylinder, said pistons being connected, a charge receiving chamber in each cylinder, each piston sliding in one of said charge receiving chambers, an explosion chamber opposite each charge receiving chamber, but separated therefrom by a piston, means for causing an electric spark alternately in each explosion chamber to explode a gas therein to propel the adjacent piston, a casing, said cylinders being mounted in said easing, a frame, said casing being slidably mounted in said frame, and means to move said casing along said frame.</p> <p>“19. A rear compression internal combustion motor having a double acting unignited charge compressing free piston, and a free power transmitting element connected therewith.</p> <p>“20. A motor having a self-balanced piston situated between chambers for confined compressed explosive charges of gas or vapor, and power transmitting means connected with such piston.</p> <p>“21. Explosion chambers, means for supplying unignited explosive charges of gas or vapor to and firing the same in said chambers, free piston heads in said chambers positively connected for mutual reciprocation, an axially moving free power transmitting element connected with said piston heads and a guide for said element.</p> <p>“22. Explosion chambers, means for supplying unignited explosive charges of gas or vapor to and firing the same in said chambers, free piston heads to said chambers rigidily connected for mutual reciprocation, a free power transmitting element connecting with said piston heads, and a guide for said element.”</p> <p>The interfering applications bear the following filing dates: Otho C. Duryea and Morris Cl White, March 27, 1902; John Y. Nice, .April 16, 1903. It appears, however, that Rice had filed his original application for the invention on June 8, 1895,. of which this is a division; and this having been regarded as a. continuation of the former, he was considered the senior party.. Dor the reason that the preliminary statement of Duryea and White had failed to overcome the prima facie case of Rice made* by the filing of said two applications, the Primary Examiner-cited them to show cause on or before October 10, 1904, why a decision against them should not be rendered on the record., They did not amend their statement, and in reply to the rule-to show cause filed a motion to dissolve the interference on the following grounds: 1. That no interference in fact exists: 2. That there has heen irregularity in declaring the interference : 3. That Rice has no right to make the claims in issue: 4. That the structure disclosed by Rice is inoperative. It was also moved that Rice be declared the junior party and the burden of proof shifted to him.</p> <p>This motion was referred [by the Examiner of Interferences] to the Primary Examiner-, Avho overruled it on all points in an. elaborate decision. An appeal therefrom was taken to the Examiners-in-Cliief, who dismissed the same on the ground that they had no jurisdiction thereof. This action of the Examiners-in-Ohief was in turn affirmed on appeal to the Commissioner.</p> <p>They then renewed their motion to shift the burden of proof,, before the Examiner of Interferences, who denied the same, and on the same day, July 8, 1905, awarded priority to Rice, no-attempt having been made by Duryea and White to amend their preliminary statement. Appeal from this decision was taken to the Examiners-in-Chief, who affirmed it, holding that Rice-was entitled to the filing date of his original application, and was therefore the senior party. Under authority conferred by rule 126 they examined a,number of affidavits presented by Duryea and White, and one by Rice, relating to the operativeness of Rice’s device; and, coming to the conclusion that it was not operative, they called the attention of the Commissioner to-tbe fact, as provided in said rule. Pending appeal to tbe Commissioner from tbeir decision affirming tbe award of priority to Pice, the latter referred the question of operativeness back to the Primary Examiner for re-examination and decision. The latter, with a number of expert affidavits before him, reviewed the alleged grounds of inoperativeness at length, and again decided that the device was an operative one. Duryea and White then petitioned the Commissioner to refer the case to the Examiners-in-Chief for rehearing, and were denied. The Commissioner then affirmed the decision of the Examiners-in-Chief awarding priority to Pice. Erom that decision this appeal was taken.</p>

<p>HEARING on an appeal from a decision of tbe Commissioner of Patents in an interference proceeding.</p> <p>Tbe Court in tbe opinion stated tbe facts as follows:</p> <p>Tbe subject-matter of invention in this case is an improvement in brushes used for polishing shoes. William A. Geen, tbe appellee, bolds a patent for tbe invention issued October 4, 1904, upon an application filed December 3, 1903. John Adam Kreag, tbe appellant, filed an application making the same claims on November 25, 1904. An interference was declared between tbe two, with issue defined as follows:</p> <p>1. In a brush, a back, a felt pad, and a pad cover having free side edges and constituting a brushing surface, said pad being compressed near its ends by fastening devices, and the parts between the fasteners of the pad and the proximate ends of the brush still further compressed by the cover fastened to the said ends.</p> <p>2. In -a brush, a back, a felt pad, and a pad cover constituting a brushing surface, said pad having fluted edges whereby said edges are made more compressible.</p> <p>3. In a brush, a back, a plurality of felt pads, and a pad cover constituting a brushing surface, said pads having fluted edges whereby said edges are made more compressible.</p> <p>4. In a brush, a wooden back having the overhanging end extensions, a plurality of felt pads tacked to the back near its ends, a pad cover consisting of a strip of animal skin with its natural covering, said pads being narrower than the back and narrower than the strip and having fluted edges, and fastening-devices securing the strip to the back under the extensions, said natural covering of the strip of skin extending outside of the back, both at its side and ends.</p> <p>The Examiner of Interferences decided in favor of Geen, and was reversed by the Examiners-in-Chief, who awarded priority to Kreag. This decision was in turn reversed on appeal to the Commissioner, from whose decision awarding priority to Geen this appeal has been taken by Kreag.</p>

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

IIeaRING on an appeal from a decision of tbe Commissioner of Patents rejecting an application for registration of a trademark. Tbe facts are sufficiently stated in tbe opinion.

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

<p>TRADEMARKS; PLEADING.</p> <p>1. Two trademarks are substantially the same if the resemblance would deceive an ordinary purchaser giving such attention as he usually gives in making a purchase, and would cause him to purchase one article, mistaking it for the other. (Following Gaines v. Carlton Importation Go. 27 App. D. C. 571, and Buchanan-Anderson-Nelson Go. v. Breen <£ Kennedy, 27 App. D. C. 573.)</p> <p>2. 'Whether two words claimed as trademarks bear such close resemblance as will mislead and deceive the purchasing public may be determined on a demurrer to an opposition to an application for registration of one of the words.</p> <p>3. The word “Zodenta,” for use on a dentifrice, does not go closely resemble the word “Sozodont,” similarly used, as to be apt to deceive purchasers.</p>

HbaeiNG on an appeal from a decision of the Commissioner of Patents rejecting a claim in the application for a patent. The Court in the opinion stated the facts as follows: This is an appeal [by Harold M. Duncan, Charles H. Pritch-ard, and Charles P. Macaulay] from a decision of the Commissioner of Patents refusing the 36th claim for a patent for improvement in type-casting machines. The claim reads as follows: “36.

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

<p>HbariNG on an appeal from a decision of tbe Commissioner of Patents in a trademark interference proceeding.</p> <p>The Couet in the opinion stated the facts as follows :</p> <p>Hearing’ on an appeal from a decision of the Commissioner of Patents in a trademark interference case.</p> <p>The issue is the word “Pose” as a trademark for shoes. The Pose Shoe Manufacturing Company, of Rochester, New York, the senior party, and appellant here, registered this mark July 21, 1905, and the application of A. A. Rosenbush & Company, the appellee, was filed July 22, 1905. An interference was duly declared, testimony in the form of depositions taken by both parties, and priority of adoption and use awarded appeL lant by the Examiner of Interferences. From this decision an appeal was taken to the Commissioner of Patents, who reversed the decision of the Examiner of Interferences, and awarded priority of adoption and use to appellee. The decision of the Commissioner is here challenged.</p> <p>A. A. Rosenbush, a partner in the,firm of A. A. Rosenbush & Company, of Boston, Massachusetts, about August 1, 1894, formed a partnership at Chicago, Illinois, with Samuel Goldsmith and Jerome M. Levie, under the firm name of Goldsmith, Rosenbush, & Levie, and engaged in the wholesale boot and shoe business in Chicago. Rosenbush testified that the firm first used the word “Rose” as a trademark “in the spring of 1895,” and that the word was thereafter continuously used “to the spring of ’98.” In November, 1898, Rosenbush purchased the stock, fixtures, and goodwill of the firm, and removed to Boston. Shortly thereafter he opened a place of business in Boston, and continued the use of the word “Bose” as a trademark down to the time when he sought its registry. His testimony as to the use of the word as a trademark in Boston is corroborated by other witnesses, and we find no difficulty on that point. The deposition of his former partner, Levie, was taken in Chicago, and he was asked “whether or not Goldsmith, Bosenbush, & Levie used any trademarks upon the shoes sold by them?” He answered: “Some.” He was then asked what trademarks they used, and to this he replied: “Well, we used the name ‘Waddell/ used the name ‘Bose/ and several others.” He was asked when the firm first used the name “Bose” as a trademark, and he answered: “Can’t tell exactly — haven’t any data to go by. It was between 1894 and 1898.” When asked if he could tell whether it was nearer 1894 than 1898, he said: “Well, yes, it was about a year or a year and a half after we 'started in business.” On cross-examination he was asked: “About how many other trademarks did you use besides the words ‘Bose’ and ‘Waddell’?” and replied: “Not over half a dozen, they changed from time to time. The merchandise would not market, and we would have to change them.”</p> <p>In the above application for registry of A. A. Bosenbush & Company, the truth of the statements therein being sworn to by A. A. Bosenbush, it is stated that “the trademark has been continuously used in our business since the year 1891.”</p> <p>In the application of the appellant it is stated that “this trademark has been continuously used in business by said corporation and in the business of M. J. Whitman Company, from whom title is derived, since the 1st day of March, 1900.” Charles A. Booker, the secretary and treasurer of the Bose Shoe Manufacturing Company, was asked why he did not give an earlier date, and replied as follows: “I simply gave 1900 from my personal knowledge, without any investigation or inquiry among my predecessors, as to the first use of the word ‘Bose.’ If I had been asked by my attorney to give an earlier date, I certainly could have done so.” He further testified that the original company was known as S. Baubert & Siebert, and that this company was succeeded by Siebert, Whitman, & Bartold, who were in turn succeeded by Siebert, Whitman, & Company, and they in turn by M. J. Whitman Company, the immediate predecessor of the Bose Shoe Manufacturing Company. Mr. Booker was asked whether the trademark “Bose” was used on shoes sold by the predecessors of his company, and answered that shoes bearing that trademark were manufactured and sold by Siebert, Whitman, & Bartold, Siebert, Whitman, & Company, M. J. Whitman Company, and the Bose Shoe Manufacturing Company, and that Siebert, Whitman, & Bartold manufactured and sold the “Bose” shoe prior to 1899, when the firm changed to Siebert, Whitman, & Company.</p> <p>John A. Levis, a paper-box manufacturer, of Bochester, testified that he had been making boxes and printing cartons bearing the word “Bose” for the Bose Shoe Manufacturing Company and its predecessors since 1896, when the firm name was Siebert, Whitman, & Bartold. Mr. Levis identified three cartons bearing the word “Bose” as having been printed by him for Siebert, Whitman, & Bartold.</p> <p>Philip H. Leckinger, of Bochester, a salesman in the retail shoe store of his father, who had been a retail shoe dealer for forty-five years, testified that his father had bought shoes from Baubert & Siebert and all their successors down to the Bose Shoe Manufacturing Company, and that the trademark “Bose” was associated with these shoes.</p> <p>Prank J. Nissen, of Port Clinton, Ohio, succeeded his father in 1901 in the retail boot and shoe business at that place. Mr. Nissen testified that he first bought shoes from the predecessors of the appellant when he started to manage his father’s business in 1892, and that he had since continuously bought the “Bose” shoe. Mr. Nissen did not definitely state when the trademark “Bose” was first used on the shoes he purchased from the various predecessors of the appellant. He did, however, produce two shoes so marked, which were bought in 1900, and he testified that these were not the earliest shoes so marked which he had purchased.</p> <p>Ferdinand Bartold testified tbat he was employed by Baubert & Siebert for five or six years prior to 1894; that in 1894 he became a member of the firm of Siebert, Whitman, & Bartold, which firm continued in business for about four years and a half, when it was succeeded by Siebert, Whitman, & Company, in whose employ and its successors, the M. J. Whitman Company and the Bose Shoe Manufacturing Company, he continued; and that each of these firms manufactured and sold shoes under the name “Bose.” He testified further:</p> <p>Q. By what name were the shoes manufactured by these various concerns known, and particularly Siebert, Whitman, & Bartold?</p> <p>A. The name “Bose.”</p> <p>Q. Was the name used on the shoes ?</p> <p>A. Yes, sir.</p> <p>Q. I hand you Exhibits “B” and “0,” and ask you if the marks you find on those shoes are practically the same as originally used?</p> <p>A. Yes, sir.</p> <p>Q. Since your first connection with the “Bose” shoe, has the “Bose” shoe, to your personal knowledge, been continuously manufactured and sold by the Bose Shoe Company and their predecessors ?</p> <p>A. Yes, sir.</p> <p>William J. Muckle, president of the Bose Shoe Manufacturing Company, testified that his knowledge of the company and its predecessors extended over a period of about eighteen years; that he was in the factory, saw the shoes made, and knew that they were manufactured and sold as the “Bose” shoe. He further testified that each of these companies had used the trademark “Bose” exclusively; and that over 90 per cent of the output of the factory contained that word as a trademark.</p> <p>A Mr. Prusick, of Philadelphia, testified to buying the “Bose” shoe from these companies since April or May, 1898, but his testimony is not material here.</p> <p>Both Mr. Booker and Mr. Muckle testified that the appellant and its predecessors bad built -up an extensive interstate and foreign business.</p>

<p>HeaeiNg 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>

HeabiNG on au appeal by the complainants from a decree of tbe Supreme Court of the District of Columbia dismissing a bill in equity in so far as it sought the caucelatiou of a deed, and referring the cause to the auditor for an accounting.

HeaeiNG or an appeal by the defendants from a judgment on verdict of the Supreme Court of the District of Columbia in an action of libel. The Court in the opinion stated the facts as follows: This is an appeal from a judgment for $8,500 recovered by the plaintiff in an action for libel. The declaration of the plaintiff, Henry M. Talbott, is in three counts.

<p>Patents; Interference; Patentability.</p> <p>Where a party to an interference ease is admittedly not entitled to an award' of priority of invention, for the reason that in his preliminary statement he fails to allege conception prior to the filing date of his adversary, he will not he heard, on an appeal from an adverse decision of the Commissioner, to question the patentability of the invention of the issue. (Distinguishing Podlesak v. Melnnerney, 26 App. D. C. 399,. and following Hisey v. Peters, 6 App. D. C. 68, and Sobey v. Holselawr Ante, 65.)</p>

<p>HEARING on an appeal from an order of the Supreme Court of the District of Columbia disbarring the appellant from membership of the bar of the attorneys and counselors of that court, and directing that his name be stricken from the roll of attorneys and counselors thereof.</p> <p>Statement oe the Case.</p> <p>On November 24, 1905, there was filed in the court below a report of the committee on grievances of the Bar Association of the District of Columbia charging John H. Adriaans with misconduct in his office of attorney, and with unprofessional conduct involving moral turpitude. The report, containing three spcifications of misconduct, was printed in the record on this appeal.</p> <p>On November 21, 1905, a rule was issued by the court below setting out the fact that the committee on grievances appointed by the court had filed charges accusing the appellant “of misconduct as an attorney, and with unprofessional conduct involving moral turpitude,” and commanding the appellant to show cause on or before January 5, 1906, why he should not be disbarred.</p> <p>On January 4, 1906, the appellant filed his answer to the rule to show cause.</p> <p>In his .sworn answer the appellant, not waiving the benefit of the statute of limitations, specifically denied having prac-tised any fraud or misrepresentation, or that the decree passed ^consistent with his integrity, and explained the transaction and the equity suit out of which the charges grew. Subsequently, on January 24 and 30, 1806, hearings were had before the court in general term, at which the appellant appeared in proper person and argued his case in his own behalf.</p> <p>On February 5, 1906, the appellant, by counsel, filed a motion for a rehearing upon the ground that he had expected to be represented by counsel, and that his former counsel had disappointed him. This motion was supported by the affidavit of the appellant and of his former counsel, but was overruled on February 6, 1906.</p> <p>On February 14, 1906, the court met, and, after an oral opinion delivered through the chief justice, entered an order disbarring the appellant, Mr. Justice Wright dissenting.</p> <p>On February 24, 1906, the appellant filed a petition for a rehearing which was denied.</p> <p>On February 26, 1906, the appellant, by his counsel, moved the court to amend and amplify its order of disbarment “by including therein a finding or findings of fact under the several specifications of the charges filed herein, and the findings of the court whether the respondent be guilty or innocent respecting the charges contained in each specification, or in what manner each specification has heen disposed of by the court.” This motion was overruled on March 10, 1906.</p> <p>On February 14, 1906, the appellant noted an appeal from the order of disbarment. During the course of the proceedings he reserved a number of exceptions to the rulings of the court.</p> <p>The further material facts will he found stated in the opinion of the Court.</p> <p>1.The five justices below, who united in the opinion of the court after a careful and painstaking examination of all the papers before them, which was warranted by the gravity of the matter under consideration, were clearly justified in reaching the decision, from the evidence furnished by the records of their own court, that the question of fraud upon the ignorant and illiterate Fry was involved in the equity cause, and that by the judgment of their own court that issue had been determined adversely to the respondent Adriaans; and it is submitted that this court would be justified in reversing the opinion of the court below on the question of fact only in the event that the law of the case had been grievously misapplied.</p> <p>If trial tribunals and appellate courts are loath to disturb the findings of juries on questions of fact, is not the determination of such questions of fact by judges sitting to hear both the law and the facts of almost controlling force when based on the records of the court so sitting? The pleadings, testimony, and all the proceedings in the equity cause were offered in evidence without objection, and were undoubtedly competent in so far as they bore on the issue heard and decided in that cause. And it is respectfully submitted that the determination of the court below that the decree in that cause was final in its nature, and conclusive as to the question of the proof of the fraud charged in the bill, is a correct one, and their further determination, that the issue of fraud in the equity cause cannot now be collaterally impeached in this proceeding, is also correct</p> <p>2. It would seem that the remedy, if the respondent has any, is by mandamus to compel the restoration of his name to the roll of attorneys; not by appeal. Ex parte Bradley, 7 Wall. 364; State v. Kirie, 12 Fla. 278; State v. Maxwell, 19 Fla. 31; Ex parte Wall, 107 U. S. 265; Be Adriaans, 17 App. D. C. 39; Bradley v. Fisher, 13 Wall. 335; Ex parte Bradley, 7 Wall. 364.</p> <p>3. The issue in all the eases is not a question of punishment of the individuals, but the protection of the public from imposition. Re 0-, 73 Wis. 602; Oases already oited; Re Wool36 Micb. 299.</p>

HEARING on an appeal from a decision of the Commissioner of Patents rejecting certain claims in'the application for a patent. The facts are sufficiently stated in the opinion.

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

<p>HeaeiNG on au appeal from a decisioB of the CommissioBer of Pateats íb aB iaterfereBce case.</p> <p>The facts are suificieatlj stated íb the opiaioa.</p>

<p>HEARING on an appeal by tbe relator from aR order of tbe Supreme Court of tbe District of Columbia dismissing a petition for tbe writ of mandamus against the Commissioners of tbe District of Columbia.</p> <p>Tbe Court in tbe opinion stated tbe facts as follows:</p> <p>This is an appeal by tbe relator, Joseph E. Daly, from the judgment dismissing a petition for a writ of mandamus against tbe Commissioners of the District of Columbia, Henry B. E. Macfarland, Henry L. West and John Biddle.</p> <p>The following are tbe material allegations in appellant’s petition: That be is a citizen of tbe United States and a resident of tbe District of Coumbia; that “in accordance with the Acts of Congress approved April 23, 1892, Chapter 53, March 3, 1893, Chapter 199, and June 18, 1898, Chapter 467, the said Commissioners on May 3, 1900, duly granted and issued to the relator, a. license ta.practice.the búmñess of plumbing and gas-fitting' as a master plumber and gas-fitter from the 1st day of April, 1900, to the 1st day of April, 1905, and upon the expiration of said license, to wit, on the 21st day of April, 1905, the said Commissioners in accordance with said Acts of Congress duly granted and issued to the relator another license to practice said business as master plumber and gas-fitter from the 1st day of April, 1905, to the 1st day of April, 1910 ;’r that “prior to the issuance of said licenses the relator upon his application was duly examined by the plumbing board and said board reported the said examination to the said Commissioners who were satisfied from said report that the relator was a fit person to engage in said business as master plumber and gas-fitter. The relator also, as such master plumber and gas-fitter, gave bond which was accepted by said Commissioners and has ever complied with the laws and regulations in force in'said District;” that on August 28, 1905, the relator received a letter from the Commissioners directing attention to certain specified defects in the plumbing work installed by the relator in premises No. 501 B street, N. E., and notifying relator to reply to the charges in writing within five days, otherwise his license would be revoked. “without further, consideration; ” that said relator on September 1, 1905, replied in writing to said charges; that the Commissioners on October 10, 1905, made an order revoking relaidPsTicense^withbut any triaT or proper consideration' of the facts of the matter, but- irregularly, hastily and arbitrarily and contrary to law and in disregard of the rights of the relator;” that the Commissioners were without power under the law to revoke said license; that relator there-i after made an application in writing requesting the Commissioners to revoke said order of October 10, 1905, and to reinstate him as such licensed master plumber and gas-fitter, which they declined to do. “Wherefore the petitioner prays:” “That the writ of mandamus issue requiring the said Commissioners to vacate and cancel the said order made by them on October 10, 1905; also to reinstate or relicense the relator as a master plumber and gas-fitter in said District.”</p> <p>In the answer of the Commissioners to this petition, it is admitted that the license revoked on October 10, 1905, was duly issued to petitioner; that “petitioner was duly examined by the Plumbing Board and found to be qualified to engage in said business, and that he gave bond for the faithful performance of his duties.” The answer further sets forth that the license of the petitioner was on June 6, 1903, revoked upon similar complaints, and after hearing, on April 13, 1904, restored “on condition that his license as a master plumber be-" again revoked for’the first violation on his part of the plumbing regulations in the future;” that complaints other than the one referred to in said notice of August 28, 1905, bad been received by the Commissioners; that relator’s license was revoked on October 10, 1905, “the. said petitioner not having satisfactorily answered the charge of defective plumbing at No. 501 B street, northeast;’’ that subsequently relator filed a petition for a rehearing which was granted, briefs filed, and oral hearing given before the full Board of Commissioners on January 10, 1906; that “after full and careful consideration” the Commissioners •declined to reverse their original action. Attached to this answer is the correspondence with Miss Mary B. Ewing, the owner of premises No. 501 B street, N. E., mentioned in said notice of August 28, 1905, also letter from other complainants mentioned in said answer, and the report of the Inspector of Plumbing upon the work about which complaints had been made.</p> <p>The relator thereupon filed a motion to strike out all these exhibits as being “impertinent, immaterial, irrelevant, scandalous,” and demurred to so much of the answer as was not included in said motion to strike. The court denied this motion, and overruled the demurrer. A replication was thereupon filed by the relator, to which the Commissioners demurred; whereupon the court sustained the demurrer, and relator electing to stand upon his replication, dismissed the petition.</p> <p>• 1. The power to make plumbing regulations is not only conferred by Congress, but this Court has upheld them. Kerr v. Boss, 5 App. D. C. 249. See also I). O. v. Ball, 22 App. D. C. 543; Czarra v. Board, etc., 25 App. D. C. 448.</p> <p>2. The power to revoke such a license under proper regulations undoubtedly exists. Ereund, Pol. Power, p. 575, note 26.</p> <p>The fact that Congress has prescribed a punishment in the statute by way of a criminal offense is no argument against the-power of the Commissioners to revoke the petitioner’s license. This provision of the statute does remove from the province of the Commissioners any power to prescribe the penalty in a criminal action; but this is not a criminal action. It is quite a different thing. It is not a question whether this man shall be punished for careless or incompetent work, but whether he shall be permitted to continue in his business as a master plumber and to perform such incompetent work. The statute-in express terms gives the Commissioners power to pass regulations upon this subject, and to regulate the practice of plumbing. It is entirely silent upon the question of how or when the license of plumbers may be suspended or revoked. That is loft open as a matter of regulation, and necessarily so. The Commissioners have prescribed in great detail how plumbing work shall be conducted, and have added that a violation of the regulations will subject a plumber to a revocation of his license. When a plumber accepts a license with these regulations in force,-he accepts the conditions attached to them, and his license is subject to revocation for failure to observe the regulations. See Wiggins v. Chicago, 68 Ill. 3 72; Schwuschow■ x. Chicago, 68 Ill. 444; Grand Rapids v. Braudy, 105 Mich. 670; Hutchins v. Durham, 118' N. C. 457; 5 Cooley’s Const. Lim-5th ed. p. 745; Harper v. Mayor, 94 Gta. 801; Grand Rapids v. Braudy, 105 Mich. .670; Child v. Bemus, 17 E. I. 230.</p> <p>3. Mandamus is not the proper remedy in any event. If the Commissioners have acted without jurisdiction, their proceedings so showing, then they might be quashed by certiorari. But they have acted, and mandamus cannot control their discretion and compel them to act in a certain way. Mandamus will not lie to control the discretion of municipal officers. High, Extr. Legal Bern. Section 325. The writ of mandamus will not lie to control the action of any officer or body invested with discretionary or quasi judicial powers. Redfield v. Windom, 19 D C. 54; Downing v. Ross, 1 App. D. C. 251; Ross v. Goodfellow, 7 App. I). C. 1, 9, 10; West v. Hitchcocle, 19 App. D. C. 333, ■337, 342; Holloway v. Whitely, 4 Wall. 522; Deehan v, Johnson, 141 Mass. 23; Negley v. Sturgis, 44 Midi. 1.</p> <p>4. Congress must be assumed to have sanctioned sections twelve and thirteen of the Plumbing Regulations by the passage of the act of June 18, 1898. In addition to congressional acquiescence these regulations have been acted on since the 15th ■of February, 1893, and such action is a contemporaneous, official construction of the meaning of the original and subse •quent acts of Congress. New York, etc., B. Oo. v. Interstate Commerce Commission (decided February 19, 1906, adv. -sheets No. 8, pp. 272 and 281) ; Boss v. Goodfellow-, 7 App. D. C. 8.</p> <p>5. If the plumbing regulations are not in conflict with the .acts of Congress there can be no objection to the exercise of a poiver in a manner adding consistent conditions to the prosecution of the business of plumbing. Generally speaking, State laws and municipal regulations on the same subject, not inconsistent Avith each other, may be enforced. See 21 Am. & Eng. Ene. Law, p. 955; United States v. Wells, 2 Cranch, C. 0. 45; McLaughlin v. Stephens, 2 Cranch, C. C. 148; Ex parte Hong Bhen, 98 Cal. 681; Hewlett v. Camp, 115 Ala. 499; Holt v. Birmingham, 111 Ala. 369; Foster v. Commissioners, 102 Cal. 483; Mclnerney v. Denver, 17 Colo. 302; State v. Welch, 36 •Conn. 215; State v. Flint, 63 Conn. 248.</p>

HbaeiNG ou an appeal by the relator from an order of the Supreme Court of the District of Columbia dismissing a petition for a writ of mandamus to the Postmaster General directing him to admit a certain publication to the mails as seeond-■class mail matter. ■ The Ooukt in the opinion stated the facts as follows: This is an action of mandamus [by Sigmund Reinach, Agent] to compel the admission to the United States mail, as mailable matter of the second class at the rate of…

HeaeiNG cm an appeal by the petitioner, a husband, from a decree of the Supreme Court of the District of Columbia dismissing a petition for divorce. The facts are sufficiently stated in the opinion.

<p>HeakiNG on an appeal by the plaintiff from a judgment sustaining a demurrer to a declaration and dismissing the suit.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>The plaintiff, Theodosia Bell, brought this action against the Central National Bank to recover damages for personal injuries received in falling on the stairway of a building owned and controlled by the defendant.</p> <p>A demurrer to this declaration having been sustained, the question before us is whether its averments, which must be taken as true, make out a cause of action against the. defendant.</p> <p>The substantial facts alleged are these: The defendant was, on February 3, 1905, the owner of a five-story stone building on Pennsylvania avenue, in the city of Washington, numbered 631. The ground floor was occupied by the defendant in carrying on its banking business. It leased the rooms of the upper floors to various tenants for business purposes. Defendant also owned and controlled the corresponding floors in the adjoining building, numbered 629. The entrance to the upper floors of both buildings was through the building known as No. 631. From thence stone steps led to a platform near to each floor, at right angles to which, and connecting therewith, were two other steps constructed through an opening in the east wall of building No. 631, which afforded entrance to the corresponding floors of building No. 629. Tbe defendant, having ownership and control of the said stairways and entrances, and leasing rooms to persons doing business with the public, thereby invited all persons having business with its said tenants to enter said buildings by means of the stairs, steps, platforms, and openings aforesaid, and was charged with the duty of erecting and maintaining them with due care. The neglect of this duty is alleged in this, that the defendant “negligently and improperly constructed the said steps and platform, or caused or permitted them to be constructed and maintained in such manner that the said two steps constructed from the said platform through the cut or aperture in the said wall and communicating with the adjoining building, No. 629 Pennsylvania avenue, were not of equal or uniform height or ‘rise,’ the lower step immediately connecting with the said platform then and there being '2 inches greater in height or ‘rise’ than the next above adjoining step; and the said defendant carelessly, negligently, and improperly put and placed and left remaining, or caused or permitted to be put and placed and left so resting, on the said stone platform, at the point where the base of the step connects with the said platform, a certain marble slab 2 inches in height or 'rise’ and 13 inches in width, and at a place on the said platform then and there imperfectly lighted, and without any sufficient light to enable persons to observe the peculiar, unusual, wrongful, imperfect, defective, and dangerous condition of the said step and marble slab resting on the said stone platform, whilst walking upon and over the same, and without any notice, or warning, or precaution of any kind,” etc.</p> <p>To render the description of the platform and steps more specific, it was agreed, on the argument, that the stone platform, wholly within building No. 631, was about 8 feet by 30 feet; that the steps of the main stairway have the ordinary “rise” of about 7 inches; that two steps of this “rise” were not sufficient to reach the plane of the opening on the floor of No. 629; that both steps having been given this “rise,” the space between the bottom step and the platform was supplied by the marble slab, which was 2 inches thick and extended like another step, having about the same width; that the steps there were in good repair, the defect, if any, being in their construction as described.</p> <p>The plaintiff, on the date aforesaid, visited the office room of one of defendant’s tenants, on the second floor of building No. 629, for the purpose of having some business attended to by him as a notary public. Having transacted her business, she undertook to leave the building by the stairway aforesaid. While conducting herself with proper care, and walking prudently and moderately down the steps connecting with the platform as aforesaid, “the plaintiff stepped with her left foot upon the said unsafe and dangerous marble slab, without any notice or knowledge of the presence of the said marble slab resting upon the said platform, or of the unsafe and dangerous condition of the said step or stone platform, — caused by the said marble slab resting upon it, through the carelessness, negligence, and improper conduct of the defendant as in manner and form aforesaid; and the heel of the plaintiff’s left shoe treading upon the edge of the said marble slab, in the defendant’s said building, the said plaintiff’s said foot was tilted over and downwards,” throwing the plaintiff upon the said platform with great force. By reason of the said fall the plaintiff’s foot and ankle were seriously sprained, her knee cap broken, and divers other serious injuries received. The allegations of damages are in the ordinary form, and are laid in the sum of $20,000. A second count of the declaration sets out substantially the same facts as regards the negligence of the defendant, the conduct of the plaintiff, and the manner in which she received her injuries.</p>

<p>HEARING on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia sustaining a demurrer to and dismissing a bill for injunction against the-Secretary of the Interior.</p> <p>The Couet in the opinion stated the facts as follows:</p> <p>The appellant, the Irrigation Land & Improvement Company, as the owner of certain lands situated on the Colorado’ river, in the county of Yuma, in the territory of Arizona, and irrigation rights and franchises acquired in connection therewith, brought this suit to enjoin the defendant, as Secretary of' the Interior, from performing certain acts in execution of the-irrigation act of Congress, approved June II, 1902; namely,, the erection of a great dam in the river aforesaid, and the construction of certain other works as ditches, levees, etc., in the-course of which defendant’s agents and subordinate officers have trespassed, and are continuing to trespass, upon the complainant’s land and easements, destroying its works and irrigation system, depriving it of its customers, and thereby working it irreparable injury and damage.</p> <p>The bill charges the following facts substantially:</p> <p>Complainant is a corporation organized under the laws of' Arizona, having an authorized capital of $1,000,000. Its objects and purposes are to build and maintain headgates,. ditches, and reservoirs for the storage of water to be taken from the Colorado river and its tributaries, for the purpose of irrigation of arid lands contiguous to the Colorado river, in the’ Yuma valley, in Yuma county, in said territory. That through appropriation under the laws of the United States and of the-territory of Arizona, and by purchase from others, complainant has acquired water rights, rights of way, and sites for canals,, reservoirs, etc., and has been for more than five years the owner and in possession of the land occupied by its said canals, reservoirs, etc., and of the right to take an ample quantity of water from the Colorado river for all of the purposes of its irrigating system, and that its rights thereto-have become vested. That by said appropriation and purchase complainant is entitled to have diverted from the Colorado river, in the county of Yuma, in said territory, more than 1,000,000 inches of water, miner’s measure. Complainant also has lawfully designated location ■of strips of land for its irrigation canals and ditches in said valley, and is the owner in fee simple of 160 acres of land, on which some of its said works are located. The several grantors of complainant had, prior to the time of transfer to it, partially developed an irrigation system, and at the time of said transfer there were over 13 miles of irrigation canals in operation, supplying and irrigating considerable areas of land in said Yuma valley. That since obtaining title, complainant has carried on and developed the said irrigation canals, and constructed new canals, laterals, dams, flumes, and aqueducts in the Yuma valley, and has completely covered a large part of said valley by the same. That during the years 1900, 1901, 1902, and 1903, it issued to landowners, and prospective landowners of said valley water rights for the irrigation of about 14,000 acres of land, said water rights being a contract entered into with water users, whereby complainant bound itself to furnish water to the persons receiving said water rights, and during the said years, and since, it has irrigated lands in the said valley to the extent of more than 5,000 acres, completely supplying owners thereof with water for the purpose of irrigating their said lands. That, at the time complainant corporation was organized, there were 50,000 acres of arid and irrigable lands below the point of diversion of the water of the Colorado river used by complainant, and easily reached by gravity therefrom, and that its appropriations and purchases of water were made and its said canal system designed and constructed with the object and intent of irrigating said entire body of lands. That it was financially able to carry out the said enterprise, and has expended in and about the development of this system the sum of about $360,000; and its irrigation system is now of the reasonable value of $500,000. That complainant, under and in pursuance of the laws of the United States, filed in the general land office of Arizona territory its plats and maps, as required by said laws, fully setting out its entire system of canals, flitches, reservoirs, etc., as constructed and maintained by it; and said map and plat was duly and regularly approved by the Secretary of tbe Interior. That complainant, during the years aforesaid, has been in the actual use and possession of all the-canals, ditches, reservoirs, etc., therein described, and was and is flowing water over and through the same to the boundary line between the United States and the Republic of Mexico, and that the United States government has at all times fully and completely recognized the rights of complainant. That, having complied with the laws of the United States and of the territory of Arizona, complainant is proceeding, as rapidly as the needs of the country require, to extend and perfect its system, and will in the near future, unless interfered with by the matters and things in this bill alleged, extend and perfect its said system, so as to cover and furnish water to the entire body of land lying beneath its canals, to wit, the 50,000 acres aforesaid. That the defendant is Secretary of the Interior of the United States, and, as such, has under him a large number of agents and minor officers subject to his direction and control, and who execute his will in matters committed to him by law for execution. That on August 20, 1903, Edmund T. Perkins, one of said agents, by direction of defendant, made, pursuant to the laws of the territory of Arizona, an appropriation of 100,000 cubic feet per second of the waters of the Colorado river, in the name and for the benefit of the United States, for purpose of irrigation, the said waters to be diverted from tire said river at a point on the left bank, about 22 miles above Yuma, and to be used on arid lands in the said Yuma valley; and on July 8, 1905, J. B. Lippincott, another of defendant’s said agents, by his direction, made, pursuant to the said laws, another and further appropriation of the waters of the Colorado river, in the name and for the benefit of the United States, under which claim of appropriation was made of all the unappropriated waters of the Colorado river, both surface and underflow, which said water is to be used for irrigation and other purposes in and upon lands situated in Yuma county, from which the United States intends to construct and maintain a canal and system of canals, extending from the point of diversion on the west bank of the river to the boundary line of the Republic of Mexico. That the lands described in the last of the above-mentioned appropriations are the same lands lying below the points of diversion named in the water-rights locations belonging to complainant, and that all of such lands are capable of being irrigated by its system when the same shall be extended and completed in accordance with its plans and intentions; and more than 20,000 acres of said land lie below its main canals as already completed, and are capable of now being irrigated therefrom; and more than 5,000 acres of the same are now being irrigated therefrom. That the lands described in the last-mentioned notice of appropriation are the only lands capable of being irrigated by water taken from the Colorado river at the points of diversion mentioned in either of said notices of appropriation. That said appropriations of water were made pursuant to a purpose and intention on the part of defendant to build and operate, in the name and at the expense of the United States, an irrigation sj^stem which should compete with that belonging to complainant in the furnishing of waters to the owners and prospective owners of the land mentioned in the said last-described notice of appropriation. That, pursuant to said purpose, the agents of defendant, by his direction, have entered upon and carried on during the last three years an active campaign to induce the water users and prospective water users in the Yuma valley, all of whom settled in the said valley as the result of the enterprise of your orator, and most of whom have taken and paid for the right to receive water from your orator’s system, to sign an agreement to take water exclusively from the government system; and that many of said water users who had intended to patronize complainant’s system, and had purchased the right to receive water from it, have, to its great damage and injury, been induced by the representation of defendant’s agents to ,sign agreements to take water exclusively from the government. That, pursuant to his said purpose and intention, the defendant has caused planse to be drawn for an irrigation system to water the said lands in the Yuma valley, which plans include dams in the Colorado river, reservoirs for tbe storage of water, beadgates to take water from tbe said river at tbe point of diversion, and main canals, ditobes, and laterals for distribution of tbe water over said lands, and is now causing said system to be built and constructed with money drawn from the Treasury of tbe United States. That one of tbe dams across tbe Colorado river, now being so built and constructed, is situated in tbe said river above tbe point where your orator diverts and has tbe right to divert its water from tbe said river. That said dam is intended and will have tbe effect of creating a settling basin for sediment carried by tbe waters of tbe said river, and is provided with sluice gates, which, when- open at stated times and the sediment washed out from tbe same into tbe channels of tbe river, will cause tbe scouring of tbe said river and reduce it below the intakes of tbe canals of complainant; and tbe said waters, when allowed to flow through the sluice gates, will carry an enormous excess of sediment which will flow into the beadgates and canals of complainant, and cause them to fill up and to become unserviceable except at a ruinous expense. Tbe said dam is a necessary part of tbe system designed by tbe defendant, and tbe same cannot be successfully carried on without it; and tbe building of said dam, and its maintenance and operation, will destroy complainant’s entire irrigating system, and constitute a taking of its property within tbe meaning of tbe Constitution of tbe United States. That the plans now being carried out provide for a main canal on higher ground than the canals of complainant, entirely encircling and enclosing tbe latter, from which main canal it is proposed to extend subsidiary canals and laterals to tbe lower ground now occupied by complainant’s canals and laterals. That tbe subsidiary canals and laterals will cut and destroy tbe canals and laterals of complainant. That tbe waste water from the system of defendant will have no place to flow except through tbe canals and laterals of complainant, and said waste water, not being subject to tbe control of complainant, will interfere with its system and practically render tbe same valueless. That tbe defendant’s plans aforesaid provide for a levee to be built along the east bank of tbe Colorado river, at points above and below where complainant takes its water from said river, and where alone it has the right to take said water, said levee being intended both as protection against overflow in periods of high Avater, and as a structure to carry an aqueduct or canal. Said levee is a necessary part of said system, and defendant by his agents is now causing the same to be constructed, and said work is now reaching the neighborhood of the headgate of complainant’s principal canal, which is constructed on land owned by complainant in fee simple; and if said head-gate be built Avith openings or gaps at the headgates maintained by complainant, the effect Avill be to concentrate the force of the volume of the Avaters at periods of high Avater at said head-gates, and the force of the same will be such as to render it impossible to maintain the headgates except at a ruinous expense. That the defendant, through his agents and servants, has entered by force and violence, and against complainant’s express will and command, the land OAvned by complainant in foe simple, on Avhich the headgates of its principal canal is located, and is now proceeding to build the said levee thereon. That complainant has heretofore built a levee about 3 miles long on the east bank of the river above its first intake, at great expense, for the. purpose of protecting its OAvn system and works, to Avhich leAree it has title from the OAA'ners of the land on which it stands, and complainant alleges that the defendant, his agents and servants, have taken possession of said levee Avith force and violence, and are proceeding to utilize the same as a part of the leA^ee being built by the defendant. That all these acts haAJ-e been done and are being done Avithout any authority or tender of compensation to complainant, and are arbitrary and XAnlaAvful and violative of the provisions of the Federal Constitution intended to secure the rights of person and property, and they have been done by the defendant under color of and by virtue of the poAA^er of his official position. That it is the purpose and intention of the defendant, his agents and servants, to maintain possession of complainant’s property, and to take possession of still other parts not yet entered upon, and to build the said levee over and across the same, and prevent complainant from obtaining any water from the Colorado river for its irrigating system. That, if the said irrigation system of defendant be built as designed and intended, it will introduce competition between that system and complainant’s, which will be injurious and detrimental, if not ruinous, to complainant. That the defendant is constructing and causing the same to be constructed in the name of the United States, with the money of the United States, but without the authority of any valid law, and said action is an infringement of complainant’s property rights, and should be enjoined and restrained. That the defendant has offered to complainant the sum of $45,000 for all of its property and rights in said irrigation system, which sum is less than one eighth of its actual cost, and less than one eleventh of its actual value. That the act of Congress approved Tune IT, 1902, under which defendant is engaged in the operations aforesaid, is unconstitutional and void. That complainant is powerless to resist the illegal and oppressive action and threatened action of defendant and his agents, which said action has damaged complainant, by the depreciation of its property and diminution of its revenues, more than $50,000, and is inflicting continuous and increasing damage as the scheme and plans of the defendant and his agents are developed and carried into effect; and when fully developed and carried into effect the said scheme and plans will have destroyed complainant’s property and rendered it bankrupt; and that it has no remedy at law for the injury inflicted on it, or, if any remedy, the same will be partial, inadequate, and incomplete, and the interposition of a court of equity is essential to prevent irreparable injury and a multiplicity of suits.</p> <p>The prayers of the bill are for an injunction to restrain the defendant, his agents and servants, from further prosecuting and completing said irrigating system, and from doing any act or thing in connection with the plans for an irrigation system now under construction which will have the effect of interfering with, destroying, or in any wise impairing the irrigating system, or any part thereof, now maintained by complainant; and that they be perpetually enjoined and restrained from con-tiiming to trespass -on tlie lands and property of complainant, or from committing other and further trespass on any other of the lands and property of complainant. Also, that an account be taken of the injury and damage done to complainant up to the present time by reason of the illegal acts of the defendant, his agents and servants, as alleged, and that a decree be rendered therefor.</p> <p>The defendant entered a demurrer, the first ground of which is that it appears from the averments that the matters complained of are not within the jurisdiction of the supreme court of the District of Columbia, but are cognizable only by the court of the first judicial district of the territory of Arizona, held in and for the county of Yuma.</p> <p>The cause was submitted on this ground of demurrer, which was sustained, and the bill dismissed.</p> <p>From that decree this appeal has been taken.</p> <p>1. When the bill of complaint is considered properly, it will be seen that there is no ground, from any point of view, for the contention that the action must be brought in Arizona. The case is not in any sense local. It is not an action for trespass, pure and simple, like that-in Northern Indiana P. Co. v. Michigan G. B. Go. 15 ITow. 232. The wrongs alleged against the defendant are acts conceived and directed here in the District of Columbia, and the relief sought is against further action in this jurisdiction. The result of the defendant’s wrongful action, moreover*, even when that action has affected and set in motion his agents out in Arizona, is not the commission of trespass against the complainant, except in the single instance of the building of the levees on complainant’s land. It is, on the contrary, to cause the doing of things which, while they indirectly affect complainant to its injury, do not touch any physical property belonging to it. A cursory reading of the bill of complaint will show this to be true.</p> <p>In view of the character of the case made in the bill, we submit that it is governed by Phelps v. McDonald, 99 U. S. 298, and other similar cases, rather than the single case in 15 Howard, relied on so strongly by defendant. It is to be noted that the case in 15 Howard stands single and alone, and that, in a sense, what is said on the question involved here, is dictum. Nevertheless, as applied to a bill alleging nothing but a trespass or nuisance, we do not question its correctness. Such a bill would undoubtedly make a case local in character. But where there are other elements, — such, for instance, as the official character of the defendant, and the doing of the wrongful acts under color of an invalid law and contrary to the constitutional rights of the plaintiff, and especially where the injurious acts affect the plaintiff indirectly, and do not necessarily touch his actual physical property, — the action is not local in character, and may be brought wherever the defendant may be found. See Massie v. Waits, 6 Cranch, 148; Watlcins v. Holman, 16 Pet. 25; Hart v. Sansom, 110 H. S. 155; Oole v. Cunningham,, 133 H. S. 107; Carpenter v. Strange, 141 H. S. 106; Briggs v. French, 1 Sumn. 504; Lyman v. Lyman, 2 Paine, 11; Tardy v. Morgan, 3 McLean, 358; Montgomery v. United States, 36 Ped. 4; Miller v. Lux v. Riclcey, 127 Fed. 573.</p> <p>2. The present action is not a suit against the Hnited States. Davis v. Gray, 9 Wall. 220; Hagard v. Southern, 117 H. S. 52; Lie Ayers, 123 H. S. 485; Pennoyer,v. McConnaughy, 140 H. S. 1; Tyndall v. Wesley, 167 H. S. 204; Scranton v. Wheeler, 117 H. S. 140.</p>

The Court in the opinion stated the facts as follows: In the police court the information in this case charged Stephen H. Nash with carrying and conveying certain garbage in a vehicle through the streets of this city, Nash not being the city contractor, contrary to the garbage regulations of this District.