Volume 29 — Appeals, District of Columbia

Hearing on an appeal from a decision of the Commissioner of Patents affirming an order of the Examiner of Trademarks dissolving an interference between applicants for registration of a trademark.

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

<p>Patents ; Interference.</p> <p>Wickers v. McKee, ante, 4, applied and followed.</p>

<p>Hearing on an appeal from a decision of the Commissioner of Patents in an interference proceeding.</p>

<p>PATENTS; INTERFERENCE.</p> <p>1. Quaere, whether if an applicant applies his process of printing to an electrotype plate, no mention being made by him of treating an engraved plate, his specification will support a claim for an engraved printing plate, reduced in thickness from the back and depressed from the front to correspond to the successive gradations of light and shade represented by the engraving on the face, on the ground that an electrotype is a duplicate of an original plate and therefore really an engraved printing plate.</p> <p>2. Wickers v. McKee, ante, 4, applied and followed.</p>

<p>Hearing on an appeal from a decision of the Commissioner-of Patents in an interference case.</p> <p>The facts will be found stated in Wickers v. Mc'Kee, ante, 4.</p>

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

Hearing on an appeal by the defendants from a judgment of the Supreme Court of the District of Columbia in an action of assumpsit, a jury trial having been waived.

Hearing on an appeal from a decision of the Commissioner of patents rejecting an application for the reissue of a patent. The Court in its opinion stated the facts as follows: This is an appeal from the decision of the Commissioner of Patents rejecting an application for the reissue of a patent. The applicant, Paul L. T. Heroult, is a citizen of the Republic of France, and a skilled metallurgist.

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

<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>Albert L. Johnson appeals from the decision of the Commissioner of Patents awarding priority to William Mueser of the invention of the following issue of interference:</p> <p>“1. A metal bar having substantially the same cross sectional area throughout its length, for use as a core to be imbedded in concrete, the surface of all the sides of which is provided with a large number of interruptions of its continuity, whereby it presents a substantially continuous but actually much'interrupted surface.</p> <p>“2. A compound bar or unit of construction consisting of a metal bar having substantially the same cross sectional area throughout its length, and the surface of all of its sides' provided with a large number of interruptions of its continuity, whereby it presents a substantially continuous but actually much interrupted surface, imbedded in an envelope of concrete.”</p> <p>William Mueser’s application was filed July 6, 1903; Johnson’s on February 19, 1904. The issue covers a part only of i the claims of Johnson. On November 2, 1904, Mueser filed a motion to dissolve the interference, on the grounds of no interference in fact, irregularity in declaration, and that Johnson had no right, under his application, to make the claims of the issue. Johnson also moved to dissolve on the ground of irregularity and want of patentability of the claims of the issue. The irregularity alleged was that the claims are obscure and vague. Want of patentable novelty was charged in that, first, the claims call for nothing more than the roughening of a plain bar; and, second, because anticipated by a number of patents named, including one issued to him September 19, 1899, No. 623,285.</p> <p>The interference was suspended pending consideration of these motions by the Primary Examiner, to whom they were referred for action. The Examiner overruled both motions. Mueser acquiesced in the decision. Johnson appealed both to the Examiners-in-Ohief, who refused to entertain the same for want of jurisdiction, under the Patent Office rules governing such procedure, and to the Commissioner. The latter affirmed the Primary Examiner in the following decision:</p> <p>“The Examiner held that there had been no such irregularity in the declaration of the interference as to preclude proper determination of the question of priority of invention.</p> <p>“It is contended by Johnson upon this appeal that there has been such irregularity in declaring the interference, for the reason that the claims corresponding to the issue are vague and indefinite.</p> <p>“Johnson urges that the phrase ‘a large number of interruptions/ as used in the claims, is indeterminate, and also that the phrase ‘whereby it presents a substantially continuous but actually much interrupted surface’ is contradictory in its nature. While it is true that there are a larger number of ‘interruptions’ provided on the surface of the sides of the metal bar disclosed by one of the parties than by the other, still it is thought that this phrase is sufficiently definite to cover the generic invention. While it is possible that more definite language could be used in defining the structure than the statement which has been adopted, it is believed that the phrase defines the character of the surface of the bar with sufficient clearness to enable the award of a proper judgment of priority of invention. At all events, the language objected to by Johnson does not render the claims so vague and indefinite as to warrant the dissolution of the interference.”</p> <p>The interference proceeding was resumed before the Examiner of Interferences, who, in a decision carefully reviewing the questions in controversy, awarded priority to Mueser. This decision was in turn affirmed by the Examiners-in-Ohief and the Commissioner.</p>

Hearing on an appeal from a decision of the Commissioner of Patents rejecting an application for a patent. The facts will be found stated in the opinion.

<p>Patents; Interference; Diligence.</p> <p>Failure for three years after conception, by the junior party to an interference, to reduce to practice the invention, — a very simple device, namely, a clamp for holding glass plates, — during which time the senior party entered the field and reduced to practice, is not excused by want of time and money, where it appears that during such period the junior party abandoned his calling as a salesman of plate glass, and engaged in another and different business, to start which he borrowed $3,000.</p>

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

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

<p>Patents; Master and Servant; Interference; Reduction to Practice.</p> <p>1. While an invent or who employs another to embody his conception in practical 'form is entitled to any improvement thereon due to the mechanical skill of the employee, if, in doing the work, the employee goes further than mechanical skill enables him to do, and makes an actual invention, he is entitled to the benefit of his invention. (Following Milton v. Kingsley, 7 App. D. C. 531; Buebel v. Bernard, 15-App. D. C. 510; Gedge v. Cromwell, 19 App. D. O. 192; Gallagher V. Hastings, 21 App. D. C. 88; Flather v. Weber, 21 App. D. C. 179; and SendeTbach v. Gillette, 22 App. D. C. 168.)</p> <p>2. To claim the benefit of his employee’s skill and achievement, it is not sufficient that an employer had in mind the desired result, and employed another to devise means for its accomplishment, but he must show that he had an idea of the means to accomplish the particular result, which he communicated to the employee in such detail as to enable the latter to embody the same in some practical form.</p> <p>3. Where, in an interference involving an indicator for duplicate sales slip files, between R. and MeC., in which the question was as to whether McC., reduced to practice prior to the filing date of R., it appeared that McC. had made a disclosure to one L., a fellow officer and stockholder in a manufacturing company; that L. thereupon constructed a device for which, with McC.’s knowledge and consent, he applied for a patent and was put in interference with R., which interference resulted in favor of the latter by reason of L.’s abandonment of the controversy on the ground that MeC. was the inventor of the broad issue of the interference; that it was conceded in the Patent Office that L.’s device was different in detail from that disclosed by McC. in his application, and that L. would be entitled to a patent for his structure, but the office found that it contained a reduction to practice of McC.’s invention, which inured to the latter’s benefit, in view of the relations between him and L., — it was held, on a review of testimony, that the construction of L. was more than a mechanical improvement of the idea communicated to him by McC.; that L. was the original inventor; and that the Commissioner of Patents erred in awarding priority to McC.</p> <p>4. The reduction to practice of an invention by an original inventor cannot be taken as a reduction to practice by another, merely because the ownership of the claims of both may afterwards become vested in the same person or persons. It is not enough to entitle an applicant to a patent that someone else, not his agent, has shown the practicability of the invention by reducing it to practice. (Following Hunter v. Stilceman, 13 App. D. C. 214, and distinguishing Wyman v. Donnelly, 21 App. D. C. 81.)</p>

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

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

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

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

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

<p>[The further material facts will be found stated in the opinion. — Reporter. ]</p>

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

<p>Patents;’ Interference; Reduction to Practice.</p> <p>1. Where the application of one of the parties to an interference was filed after the grant of a patent to his adversary, the burden of proof is on him to an unusual degree.</p> <p>2. In an interference proceeding between applicants and a patentee, tests of devices by the former embodying the invention of the issue, claimed: to have constituted reduction to practice, must be shown to have been successful beyond a reasonable doubt. (Following Guilbert v. Killinger, 13 App. D. G. 108; Nielson v. Bradshato, 16 App. D. G. 96; Kelly V. Fynn, 16 App. D. C. 577; Meyer v. Sarfert, 21 App. D. C. 28; and Dashiel v. Tasker, 21 App. D. C. 64.)</p> <p>3. Lack of diligence is shown by a party to an interference, where he took no steps to file his application for more than two years after a test which he claims was an actual reduction to practice, did not file his application until nine months thereafter, and then only after he had heard of a patent granted his adversary.</p>

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

<p>In error to the Juvenile Court of tbe District of Columbia (trial by jury having been waived) in a prosecution for failure to support and maintain a child of which the accused was alleged to be the father. '</p> <p>The facts are stated in the opinion.</p> <p>1. The act of March 3, 1901, punishes the neglect of a parent to provide food, clothing, and shelter for his child, whether the child be legitimate or not.</p> <p>The language of the act of March 3, 1901, in sec. 4, refers to any person who shall be the parent or guardian of a child, and in sec. 5 is directed against the father and mother of such child. This act was passed for the protection of all children, legitimate and illegitimate, and includes all parents, whether their children be legitimate or not. Macklin v. Taylor, Addison (Pa.) 212. “Parent” is a broader term than “father,” and may embrace “father” and “mother.” Lanznester v. State, 19 Tex. App. 320. The best interpretation of the word “father” in the District of Columbia is obtained by reference to the laws of the District. In the act of 1781, chap. 13, of Maryland, which was in force in this jurisdiction at one time, and which related particularly to bastards, the word “father” is used when speaking of the male parent of the bastard. See United States v. Collins, 1 Cranch, C. C. 592. The word “father” has been widely used in other jurisdictions to mean the same thing. Com. v. Shepherd, 6 Binn. 288; State v. Savin, 80 Iowa, 560; Daffies v. State, 7 Wis. 568; Glidden v. Nelson, 15 111. App. 297, 300; Simmons v. Bull, 21 Ala. 501; Marlett v. Wilson, 30 Ind. 242; State v. Phelps, 9 Md. 21, 27; Wilson v. Babb, 18 S. C. 59, 69.</p> <p>What is said here is sufficient to dispose of the objection to the information that it does'not show that the child was legitimate, for, if the act of 1901 includes illegitimate children, it is not necessary to show in an information whether the child is legitimate or illegitimate. The information follows closely the wording of..the act, and the act does not require that the allegation of legitimacy should be made.</p> <p>2. Evidence of the resemblance of a child to the putative father which was admitted by the trial court, has been held competent. Wright v. Hicks, 15 G-a. 160; Jones v. Jones, 45 Md. 144, 152; Scott v. Donovan, 153 Mass. 378; Finnegan v. Dugan, 14 Allen, 197; Gilmartin v. Ham, 38 N. H. 108; Grant v. State, 50 N. J. L. 490; State v. Woodruff, 67 N. O. 89; Grow v. Jordan, 49 Ohio St. 655.</p>

<p>Hearing on an appeal by the caveatees from a judgment of the Supreme Court of the District of Columbia sitting as a Probate Court, refusing to admit a will to probate after the trial of issues by jury.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from an order denying the probate of the will of Julia M. Adams, who died in the District of Columbia on June 24, 1905.</p> <p>The will was executed in proper form on February 11, 1905. After directing the payment of debts, if any, and expressing the desire to be buried in a lot in Bock Creek cemetery, which she owned jointly with her friends, Decatur and Jennie G. Morgan, the testatrix made the following bequests:</p> <p>1. To Jennie G. Morgan $200, for the purpose of erecting a stone to mark testatrix’s grave.</p> <p>2. To Jennie G. Morgan, watch, all jewelry, clothes, personal effects, and books.</p> <p>3. To Jennie G. Morgan $3,000 for her kindness and care; in event of her death before testatrix, to go to her husband Decatur Morgan.</p> <p>4.' To Decatur Morgan $1,000; and, in ease of his death before testatrix, to Jennie G. Morgan.</p> <p>5. To Epiphany Church, of Washington, $250 for its endowment fund.</p> <p>6. To Carrie M. Adams and Frank W. Adams each $10.</p> <p>7. All the rest and residue of the estate to her nephew, Charles H. Adams.</p> <p>Decatur Morgan was appointed executor.</p> <p>This will was offered for probate by Decatur Morgan on June 29, 1905. On August 7, 1905, Carrie M. and Charles IT. Adams filed a caveat, charging that the testatrix was not of sound mind, and therefore incapable of executing a valid will on February 11, 1905 ; that execution of the will was procured by undue influence exercised by the said Morgans; and that its execution was procured by fraud and coercion practised by the said Morgans.</p> <p>• The Morgans having answered denying the aforesaid charges, the following issues were framed in the special term holding sessions for probate business, and transmitted to another of the special terms for trial by jury:</p> <p>1st. Was the paper writing propounded as the last will and testament of Julia M. Adams, bearing date the 11th day of February, 1905, executed by her in due form of law?</p> <p>2d. Was the said Julia M. Adams, at the time of executing the said paper writing, of sound and disposing mind and capable of executing a valid deed or contract?</p> <p>3d. Was the execution of the said paper writing by said Julia M. Adams procured by the undue influence of said Decatur Morgan, or Jennie G. Morgan, or any other person or persons ?</p> <p>4th. Was the execution of the said paper writing by said Julia M. Adams procured by the fraud and coercion of the said Decatur Morgan, or Jennie G. Morgan, or any other person or persons ?</p> <p>By answering “yes” to the first and third issues, and “no” to the second and fourth, the jury found that the will was executed in due form; that the testatrix was not, at the time of its execution, of sound and disposing inind and capable of executing a valid will or contract; that execution bad been procured by the undue influence of the Morgans; and that execution was not procured by the fraud and coercion of the said Morgans.</p> <p>From the final order entered in accordance with said verdict, the Morgans have prosecuted this appeal.</p>

Hearing on an appeal by tbe plaintiff in an attachment suit from an order of the Supreme Court of the District of Columbia quashing the writ of attachment upon the petition of an intervener. The Court in the opinion stated the facts as follows: This is an appeal from an order of the supreme court of the District of Columbia quashing an attachment.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia upon a verdict directed by the court in an action to recover damages for personal injuries. The Court in the opinion stated the facts as follows: This is an action to recover damages for personal injuries,, brought by A. Guión Jennings against the Philadelphia, Baltimore, & Washington Railway Company.

<p>The further material facts will be found stated in the opinion. — Reporter.</p>

<p>Hearing on an appeal by the defendant from a judgment on verdict in an action against a carrier to recover damages for loss of a trunk.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from a judgment of the supreme court of the District of Columbia.</p> <p>The suit was brought by Alfred Edgar Adams, administrator of the estate of Effie Darling Adams, to recover damages sustained by reason of the nondelivery of a trunk containing various articles of wearing apparel, which the defendant, the Adams Express Company, a corporation, appellant here, accepted as a common carrier in Washington, District of Columbia, for delivery at Whitinsville, Massachusetts. The plaintiff’s intestate and daughter lived at Whitinsville, Massachusetts, and in No-’ vember, 1902, came to Washington on a visit. While in Washington she stopped at the Baltimore House. A friend, M. Grace Hive, was with her most of the time until her departure for home about January 2, 1903, and assisted her in packing her trunk. Miss Hive testified that the trunk was locked and strapped and that the key was taken by Miss Adams; that she accompanied Miss Adams to the depot; and that the trunk was left at the hotel, in the room Miss Adams had occupied. The witness further testified that on her return from the depot she “went to the office of the Adams Express Company, and told them to send for the trunk,” that she had “notified the hotel lady that she (the witness) would call for the trunk or have it sent for; that she thinks the trunk was sent by Mr. Nubel, but does not know; that witness did not send the trunk at all.” The plaintiff introduced as a witness one Cleveland Bandolph, who testified as follows: “I was driver for the express company, and got the trunk from the hotel. I do not think I asked the value; the receipt is in my handwriting, I put on Value not given;’ no one was there to know who the trunk was shipped from; two ladies showed me the trunk; no one was in the room with the trunk; more than likely I gave the receipt to one of the ladies; I think I delivered the trunk to the company’s branch office, 1425 E street.” On cross-examination witness said there was no one in the room when he got the trunk, and that he filled in the blanks in the receipt or bill of lading, which plaintiff produced and offered in evidence.</p> <p>The defendant introduced but one witness, who testified that plaintiff’s counsel had possession of the foregoing receipt or bill of lading prior to the bringing of this suit.</p> <p>The following appears in the record immediately after the synopsis of the testimony: “No evidence was offered by either party tending to show, that Mr. Nubel had been authorized to attend to the shipping of the trunk, nor that he was the agent of plaintiff’s intestate. There was no evidence tending to show that Nubel had delivered the trunk to the defendant.”</p> <p>The plaintiff in his declaration did not declare on the receipt or bill of lading, but brought suit against the defendant for the nondelivery of the trunk, as before stated. This receipt or bill of lading contains the following provision: “In consideration of the rate charged for carrying said property, which is regulated by the value thereof and is based upon a valuation not exceeding $50, unless a greater value is declared, the shipper agrees that the value of the said property is not more than $50, unless a greater value is stated herein, and that the company shall not be liable in any event for more than the value so stated, nor for more than $50 if no value is stated herein.”</p> <p>The defendant asked the court to instruct the jury that the plaintiff was not entitled to recover exceeding the sum of $50. This request was refused, and exception noted.</p> <p>The defendant then prayed the court to instruct the jury “that if they believed from the evidence that the plaintiff’s intestate authorized one Nubel to attend to shipping her trunk; that Nubel did so and accepted the shipping receipt given in evidence, then Nubel was her agent, and she was bound by the terms and conditions of the shipping receipt or bill of lading; and that the plaintiff was not entitled to recover exceeding the sum of $50.” The court refused this request on the ground that there was no evidence tending to show that Nubel was her agent. An exception was noted to this ruling.</p> <p>The defendant then asked the court to instruct the jury “that if they believed from the evidence that the plaintiff’s intestate authorized one Nubel to deliver her trunk to the defendant for transportation, and that Nubel did so, and accepted the shipping receipt given in evidence, and delivered said receipt to the plaintiff’s intestate, and that she retained the same without objection, then she was bound by its terms and conditions, and the plaintiff would not be entitled to recover exceeding $50.” This instruction was also refused by the court, and an exception duly noted.</p> <p>Thereupon the court instructed the jury, in part, as follows:</p> <p>“It is within the legitimate power of an express company to require in advance from its patrons information concerning the value of the shipment which has been given to the company for transportation, in order that the company may have knowledge when matter of special value is intrusted to their care, for the purpose of expending special care upon it. And so, when a patron approaches an express company for the purpose of securing transportation of an article, the company not only has the right to inquire as to the value of the article, but, if the owner declines to make a statement of the value, it has the right to say: ‘We will undertake this shipment only on condition that you agree that if this article is lost we shall not be liable exceeding $50.’ If that statement is really made by the agent of the company, and the owner hears it and assents, or if he says nothing, that is an agreement, an assent, and the shipper is bound by it. Or if, instead of verbal communication from the agent to the shipper, written mention is made upon the face of the company’s receipt and transmitted to the shipper as his receipt, so that before the acceptance of the article by the express company the shipper is in possession of the receipt, and thereby knowing the terms the company is making with him, then the bailment upon the part of the shipper of the shipment, and the having by him of the written receipt, is an agreement by him to reasonable terms in it, and he will be held by law. Now the receipt that has been introduced before you shows on its face that the carrier imposed this restriction limiting the value of the shipment. But there is no evidence to show that the shipper received this receipt, and no evidence that would justify you in finding that any contract, express or implied, was entered into between tbe shipper and the company. So you can eliminate this point from consideration altogether. The only question is, What is the reasonable value of the trunk and contents, — what was in the trunk and what was the fair and reasonable value of it?”</p> <p>To this instruction a general exception was noted by the defendant.</p> <p>1. The possession of a bill of lading by the shipper is prima facie evidence of assent to its terms and conditions. Cau v. Railroad Company, 194 TT. S. 427; King v. Woodbridge, 34 Yt. 571; Boorman v. American Exp. Co. 21 Wis. 154.</p> <p>2. Acceptance of the carrier’s receipt creates a contract between him and the shipper. Hutch. Carr. § 241.</p> <p>3. The delivery of contracts and other instruments may be presumed from their possession by the promisee. Nichols v. Alsop, 10 Conn. 268; Richardson v. Noble, 77 Me. 390; Jenson v. Chicago, &c., R. R. Co. 37 Minn. 383; Wood v. Chetwood, 44 N. J. Eq. 64; McNair v. Dodge, 7 Mo. 404; Scaif v. Bird, 39 Ark. 568; Saratoga Co. v. Leach, 37 Hun, 336; State v. Ingram, 5 Ind. 441; Spence v. Rutledge, 11 Ala. 590; Firemen’s Ins. Co. v. McMillan, 29 Ala. 147; Glenn v. Grover, 3 Md. 212; Bostwick v. Van Voorhiss, 91 N. Y. 353; Strough v. Wilder, 119 N. Y. 530; Kranchfelt v. Slattery, 33 N. Y. Supp. 27; Flour City Nat. Bank v. Grover, 34 N. Y. Supp. 497; Taylor v. Gay, 6 Blackf. 150; Holliday v. Lewis, 14 Hun, 478; Saratoga Bank v. Leach, 37 Hun, 478.</p> <p>4. The appellee’s act in producing the shipping receipt is an implied admission that it was delivered to his intestate. G-reenl. Ev. 16th ed. §§ 199, 204-208; Gaither v. Farmer’s Bank, 1 Pet. 37; Philadelphia R. R. v. Howard, 13 How. 307; Parish v. United States, 8 Wall. 489; Williams v. Congor, 125 U. S. 397'; Sturm v. Boker, 150. H. S. 812; Morgan v. R. R. 96 U. S. 720; Bigelow, Estoppel, 5th ed. pp. 684-693.</p>

Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia dismissing a bill in equity to enforce the decree of a foreign court awarding alimony. The Court in the opinion stated the facts as follows: The appellant, Lucy M. Davis, filed her bill in the supreme court of the District to recover the sum of $300 awarded her under a decree of the district court of Shawnee county in the State of Kansas.

Hearing on an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia, rendered upon au agreed statement of facts, in an action to recover money alleged to have been paid for taxes under protest. Tbe Court in tbe opinion stated tbe facts as follows: This is an action to recover money alleged to bave been unlawfully exacted by the District of Columbia as taxes due under the act of Congress approved July 1, 1902.

<p>Taxes; Statutes.</p> <p>1. American Security & Trust Co. v. District of Columbia, ante, 265 applied and followed.</p> <p>2. Where a trust company of this District prior to July 1, 1902, paid the whole of its yearly taxes for the calendar year beginning January I, 1902, according to - the tax rate established by sec. 16 of the act of Congress of October 1, 1890, namely, li per cent of its gross earnings for the preceding calendar year; and by the act approved July 1, 1902, such tax rate was increased to 6 per cent, based upon gross earnings for the preceding fiscal year, which ended June 30, 1902, — it was held that the tax payable by the company for the fiscal year beginning July 1, 1902, was 6 per cent of its gross earnings for the fiscal year ending June 30, 1902, subject to deduction of the amount paid by it at the lower rate under the former act. (Hollowing American Secur. & T. Co. v. District of Columbia, ante, 265.)</p> <p>3. Where it was claimed by one of the parties to an appeal from a judgment entered upon an agreed statement of facts for a sum certain, after such judgment was affirmed by this court, that, by mistake, the judgment was entered for double the amount actually recoverable under the law as so settled, but there was nothing in the record from which this court could determine the matter of mistake with certainty, this court modified its judgment of affirmance so as to show that the judgment appealed from was affirmed, with leave to the lower court to exercise its discretion in the matter of correcting any such mistake.</p>

<p>Hearing on an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia on a verdict directed by the court in an action to recover damages for personal injuries.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>On April 13, 1901, the appellant, Golden Brown, who was an infant, through her father, John S. R. Brown, as next friend, brought this action to recover damages for personal injuries sustained on February 9, 1900, through the alleged negligence of the defendant, the District of Columbia.</p> <p>The declaration is in several counts, but the gravamen of the action set out in each is substantially the same. It is stated in the following extract from one of them:</p> <p>“The plaintiff, Golden Brown, an infant of the age of eleven years, by John S. B. Brown, her next friend, sues the defendant, the District of Columbia, a municipal corporation duly incorporated by an act of Congress of the United States of America, for that the defendant, before and at the time of the hereinafter-mentioned wrongs and injuries suffered by the plaintiff, owned, possessed, controlled, used, occupied, kept, and maintained a certain fire engine house or building in the city of Washington, District of Columbia, of the height of, to wit, two stories, situate on the south side of M Street Northwest, between 32d and 33d streets, and known as Engine House No. 5, the second floor or story of which said building was reached by means of a stairway from the first floor thereof; and in the front room of the said house or building on the said second story thereof was a certain room in which the defendant made and kept, and maintained for a long time, to wit, five years, to wit, two circular holes, recesses, or openings in the said floor in the said room, each of the diameter of, to wit, 6 feet, without any guards or rails whatever around or about the same, or any other means whatever to protect those citizens and others, including the plaintiff, lawfully upon said second floor and in the said room, from great peril and injury from and by falling through the said holes, recesses, or openings to the ground or first floor beneath the same, to and of the distance of, to wit, 23 feet; and said holes, recesses, or openings were closed from beneath the same at the time hereinafter mentioned, by means of certain doors, commonly called trapdoors, so insecurely fastened and constructed that a slight weight or downward pressure thereon would cause the same to open towards the said ground or first floor, and the said doors when shut excluded the light from the entrance of each of the said holes or openings, so that their location was not easily but with difficulty discernible, and the closing of the said doors made the same holes, recesses, or openings far more dangerous to the plaintiff, the public, and others than they were when open; and for that on, to wit, the 9th day of February, a. d. 1900, the said doors to the said holes, recesses, or openings were in fact closed, and the said front windows of the said second-story front room were shaded and occupied by divers citizens in and upon the said premises, by reason of the invitation hereinafter set forth; and for that the defendant and the agents, employees, and servants of the defendant in charge of and at the said building, for a long period of time, to wit, five years, constantly, notoriously, and openly, and on, to wit, the 9th day of February, a. n. 1900, invited and permitted the members of the families of the firemen and others employed at or about the said building to come or go upon the said floor of the said front room of the said second story to there visit them; of all of which the defendant had due notice; and it became and was the duty of the defendant and of its servants, agents, and employees, in accordance with the said invitation and permission, to exercise due and reasonable care towards, and to protect from injury, the families of the said firemen and others so visiting the said room, against the said unguarded recesses, holes, or openings; and for that the plaintiff, on, to wit, the 9th day of February, a. d. 1900, was a member of the family of one of said firemen, and was lawfully in and upon the said premises and the said floor of the said second-story front room on a visit to her father, one of said firemen, pursuant to the said invitation and permission, and on, to wit, the said 9th day of February, a. d. 1900, the plaintiff, then an infant of tender years, of, to wit, eleven years of age, while on the said floor- and in the said room, and using due and reasonable care, and without any fault or negligence on her part, and without knowledge on her part that the said holes or openings were closed by mean? of the said trapdoors, but solely through the negligence and carelessness of the defendant and the agents, servants, and employees of the defendant in not pi’oviding any guards or rails or other protection around or about one of the said holes or circular openings, and in closing the said trapdoors thereto, was put in great peril of her life and limbs, and fell through one of the said holes, recesses, or openings to the ground or first floor beneath, a great distance, to wit, a distance of 23 feet, with great force and violence, and was severely frightened, hurt, wounded, bruised, and permanently injured.”</p> <p>Defendant’s demurrer to the declaration was overruled February 12, 1904, and it entered a plea of the general issue. The case was called for trial by jury on April 23, 1906, and the jury having been impaneled, the counsel for the plaintiff made the following statement of his case:</p> <p>“If your Honor please, and gentlemen of the jury, this is an action brought by Golden Brown, an infant, by John S. Brown, her father, for damages against the District of Columbia, and the plaintiff’s case is about as follows:</p> <p>“On the 9th day of February, 1900,- in the afternoon of that day, Golden Brown, being about nine or ten years old, went to the engine house in Georgetown, on M Street, between 32d and 33d streets, known as Engine House No. 5, for the purpose of viewing the funeral procession of General Lawton, which was to pass that engine house that afternoon. This engine house had two stories, and on the second story of the engine house it had been the custom of the families of the different firemen at this engine house to go whenever a parade or procession of any character was passing. Golden Brown is the daughter, as I say, of John Brown, who was employed at that time as a fireman. On that particular day Mr. Brown was off from his duties. He had been to his house, and had had his dinner, and went to the engine house, carrying two of his children there. Golden Brown, his little daughter, the plaintiff here, came home from school, and had her dinner and learned that her father, brother, and sister had gone to the engine house, and she went down there alone, and when she got to the engine house she went upstairs on the second floor or story, as she had on a number of occasions before done, and went into this room, where there were at least fifteen or twenty persons, or probably more, some of whom were members of the families of the firemen of that engine house, which faces on M Street, between 32d and 33d streets.</p> <p>“In the floor of the second story of this engine house there are openings made for the purpose of permitting the firemen to go down what they call the greasy pole. It is — more than an open hole, and the pole that runs down from the second floor to the first floor, which enables the men to slide down this pole to get on the engine and go out whenever a fire occurs. In each hole there is a trapdoor arrangement that opens downwards, but stands just like this (indicating), as the evidence will show, and whenever the slightest pressure or weight is put upon this trapdoor, it, of course, opens. The hole comes right up in the center of these two doors that open in a downward manner, and they open just like that (indicating) ; and on this occasion, for some unaccountable reason, these doors had been left open. For some time previously, say three or four months previous to the 9th day of February, 1900, there were guard rails around these holes, put there for the purpose of keeping persons on that floor from falling into the holes. Several months, certainly three or four, before this accident happened, the District had repaired the floor on the second floor of this building, putting in new flooring. For some reason, we do not know why, these guard rails, or the chain with the little rails, were taken down and never replaced, so that on the 9th day of February, 1900, these two circular holes or recesses were entirely unincolsed and entirely unprotected.</p> <p>“It had been the custom, as I say, for a great many years, for the members of the families of the firemen to go in and upon the premises there. No objection was ever raised to it. In fact, there was an invitation extended to them, as the evidence will show, either express or implied, to come and go on that floor of the house. Golden Brown had been there many times ■ before, and no objection was raised to her being there; and on this occasion she went there for the purpose of viewing this parade. As she went into the room on this afternoon, she saw her father over at the window, and as she walked over towards the window she fell into this recess or hole, this opening in the floor, down to the first floor of the building, a distance of 21 or 23 feet, I forget now which; either 21 or 23 feet. She was permanently hurt and injured, was unconscious for days, certainly four or five days, and suffered serious and permanent injuries, fractured her hip, and until this day one of her feet is shorter than the other, I think certainly an inch; and the evidence will show you that she walked on crutches for many months, had to stay away from school for a whole year, and suffered intense pain and agony.</p> <p>“I think this is about the substance of the evidence on behalf of the plaintiff.”</p> <p>The court, on his own motion, thereupon asked plaintiff’s attorneys if the claim to a right of recovery was based upon a statute. To which inquiry counsel for the plaintiff replied in the negative, and in reply to further inquiry then informed the court that the cause of action was based upon the theory that the District of Columbia, as the owner of the real estate and as the owner of the premises where the accident occurred, was liable upon the ground that the plaintiff was permitted, by express or implied invitation, to come and go upon the premises, and that the plaintiff was rightfully on the premises, and not a trespasser, and that it was the duty of the defendant to see to it that she did not go into danger. The plaintiff further offered to prove that the defendant had for a number of years prior to the accident in question, either by express or implied invitation, allowed the plaintiff as well as numerous other parties to go upon the premises. Thereupon the plaintiff requested and moved the court to allow her to introduce plaintiff’s evidence to prove all the allegations of the declaration, which said request was refused by the court, and objection and exception were duly taken by the plaintiff: said exception was noted on the minutes of the presiding justice.</p> <p>The court, stating his reasons therefor, directed the jury to return a verdict for the defendant. Execution of this direction was suspended for a time, and the following proceedings were had:</p> <p>“Mr. David: We note an exception to your Honor’s ruling. We also ask that we be allowed to introduce our proof in substantiation of the allegations of the declaration.</p> <p>“The Court: You do not claim to be able to prove any facts other than those stated to the jury in your opening ?</p> <p>“Mr. David: I think I stated substantially to the jury all the facts upon which we rely, but, furthermore, I desire also to state that Mr. Justice Barnard overruled a demurrer to this declaration.</p> <p>“The Court: I am not going to enter into any consideration of the question of whether a demurrer would be good or bad. I only want to know what you state you will prove as a matter of fact.</p> <p>“Mr. David: We expect to show that what we allege in the declaration is correct. I have already stated what the evidence on behalf of the plaintiff would show. I also state at this time that the record shows that Mr. Justice Barnard overruled the demurrer to the declaration.</p> <p>“Mr. Douglass: In order that there may be no misunderstanding of the extent of our proof here, we now offer to prove that this hole in the floor was an exposed one, one so located that it would be exceedingly dangerous to one going into this house, and that it had been the custom there for years past to allow the children, even of tender years—</p> <p>“The Court: That has already been stated.</p> <p>“Mr. Douglass: And we wish to offer to prove that.</p> <p>“The Court: Yes, it was a trapdoor or hole used by the firemen to enable them to get downstairs in a hurry in responding to an alarm.”</p> <p>The court then renewed the order to the jury, and verdict was returned in accordance therewith. From the judgment entered thereon the plaintiff has appealed.</p>

Hearing on an appeal by one of the several defendants from a decree of the Supreme Court of the District of Columbia in a suit to charge a fund in the hands of such defendant with a constructive trust in favor of the complainants. The Court in the opinion stated the facts as follows: The appellees, Joseph M. Coleman and William It.

The Court in the opinion stated the facts as follows: An information filed in the name of the District of Columbia, in the police court, charged Galen E. Green with maintaining a nuisance injurious to the public health, in that he failed to remove from a certain lot belonging to him, in the city of Washington, weeds more than 4 inches in height, in violation of the provisions of sec. 1 of an act of Congress approved March 1, 1899.

<p>Hearing on an appeal by tbe caveators from a judgment of tbe Supremo Court of tbe District of Columbia sitting as a probate court, admitting a will to probate after tbe trial of issues before a jury to determine its validity.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from an order admitting to probate a paper writing claimed to be the last will and testament of Hannah Jaeger, deceased, the paper being dated April 21, 1904, and attested by two witnesses. To the contents of the paper thus attested we later refer. Under the direction of the court upon the three issues submitted to it, the jury returned their verdict that Hannah Jaeger, at the time of the execution of the alleged will, was of sound and disposing mind and capable of executing a valid deed or contract, and that this paper writing was not secured by the undue influence of Frank Jaeger or any other person, and that it was the last will and testament of Hannah Jaeger, deceased. The court passed an order making Frank Jaeger, the caveatee, plaintiff, and Christina Kultz and Christina McGuigan, caveators, defendants; and at the trial the caveatee, as plaintiff, proved by Woodward and Boyer that the testatrix, Hannah Jaeger, executed this will on April 21, 1904. Boyer, a notary public, had written the will. The record fails to show the circumstances attending the execution of this paper. The brief of appellants’ counsel states the circumstances of the execution of the paper , and the value of the estate, which would be material if contained in the record. It appears that the jury and the trial judge had the benefit of information which we do not possess.</p> <p>On behalf of the caveators, Doctor Tiefenthaler testified that he attended Mrs. Jaeger about Tuesday, April 19, 1904, and on the following day he examined her and advised her to go to the hospital, whither she went on Friday or Saturday following. She was suffering from a pelvic abscess, causing acute pain in her side, from hemorrhages and fever. Her condition was serious; she was physically weak, with a temperature of one hundred and one or two degrees, and an operation was necessary. The Doctor said that the disease from which she suffered did not necessarily derange her mentally, and that her weakness was not so great that she was not probably mentally all right, and he noticed nothing mentally wrong about her. Five days after going to the hospital she underwent an operation, and died thereafter, on the same day. The court below admitted evidence showing that on November 14, 1903, Frank Jaeger, the husband of Hannah, was convicted of an assault upon his wife. Carl Jaeger, a brother of the caveatee, testified that Frank and Hannah Jaeger had been married about nine years, and that they had frequent quarrels; that once Frank broke up all the dishes and chased her out of the house. These quarrels occurred about two years and one year before her death. The witness was not permitted to repeat what Hannah Jaeger said to him tending to show that she was afraid of her husband, nor to repeat declarations made by her long before and just prior to her death, that she would not leave her husband one dollar. The court thereupon ruled that it would exclude from the jury all declarations of the deceased except such as were made at the time of the making of the will and such as were properly a part of the res gestee j also all declarations of the deceased that she was afraid of the plaintiff, or tending to show her estrangement from him, and also all of her declarations concerning her intentions toward the caveatee or the caveators. Carl Jaeger, continuing, testified that on the day the will was made, in the afternoon, his brother and he were walking down the street, and his brother told him that he was going to see Mr. Boyer to get him to draw the will, and the same evening Frank told him, “I am all right now, I have got it fixed up now. The old woman (meaning Mrs. Kultz, his wife’s mother) can fight all she pleases.” His brother added, “Don’t you say anything to anybody.” The witness said that the business conducted by the pair had belonged to Hannah Jaeger before she married Frank; that his brother was a baker and this was an umbrella business, and that the assault arose from a difference about the business; that his brother Frank wanted it conducted in his name and wanted the money proceeds in his name, and that Hannah refused to consent. Her money was in the Perpetual Building Association, in her own name. The witness said that Frank and Hannah lived with the witness on 11th Street about eight years ago. He further testified that Frank Jaeger owned a house at the time of tbe marriage, and that Hannah Jaeger paid off a mortgage thereon of about $700. Hannah Jaeger had conveyed all her property to Gustave Lalor, who afterwards conveyed it to Frank and Hannah Jaeger, jointly; and Frank Jaeger had told Carl that Hannah had conveyed the property to him for the sake of peace. Michael Newmyer, who lived next door to them for years, testified that he had heard Frank and Hannah frequently quarreling,- and that the quarrels continued up to the time of her last sickness.</p> <p>On the day the will was made, Frank had said he had not taken his wife to the hospital, as the doctor directed, because he did not have the will made and he could not get Mr. Boyer. He wanted the will made first, because after Hannah was out of the house Mrs. Kultz would go to the hospital and try to force a will on her.</p> <p>Christina McGuigan, the sister of Hannah, testified that, excepting during a few months after Hannah’s marriage, her mother and she maintained most cordial relations with Hannah up to the time of her death; that during the last three months -of Hannah’s life, Hannah stayed with her mother about two months at night, returning to her home in the day to attend to business, and that her mother had given this business to Hannah. Christina testified that five years before Hannah’s death the witness found her lying in the vestibule of her mother’s house, panting and sobbing, and that afterward, when the witness asked Frank about it, he had replied, “I do not know what I do; some of these times I will do something that I cannot undo.” Upon objection to this declaration, the court excluded it, and the caveators excepted. When, the year before the death of the testatrix, this witness noticed much tinware on the table, and a tomato can with coffee in it, the witness said, “Those things will poison you,” and Hannah had replied she could not help it; that Frank had smashed her last coffee can over her head, and she was afraid to buy another for fear it would go the same way and he would kill her; that he had smashed all the dishes, and she could only use tin. In the spring before her sister’s death, the witness testified that on one occasion she had found her sister had been locked in the house. Frank had told her that he wanted his wife to make a will giving him all, and exclude her mother; that he frequently threatened his wife, and Hannah was afraid of him.</p> <p>The court refused to permit this witness to prove statements of the deceased respecting the disposition of her property, and what she intended to do for the witness, and how much she feared her husband; and to these rulings the caveators excepted; and the witness was not permitted to show that Hannah took measures to secure a divorce, and desisted because of her fear of her husband; and to this ruling of the court the caveators also excepted.</p> <p>Hpon cross-examination this witness, testified that Hannah said to her, “Stina, I cannot do as I said, for he says if 1 leave him he will kill me and kill mamma.”</p> <p>Hpon objection, the court would not permit Samuel R. Turner to testify that at Mrs. Xultz’s house, in 1901, he had seen Hannah in tears and appearing to be intimidated by Frank, the court holding that this incident was too remote.</p> <p>Four other witnesses testified to quarrels between Frank and Hannah Jaeger. Mary Jaeger, the wife of Carl, testified that on the evening of the day the will was made Frank told her husband that he was all right now; that Hannah was fixed all right. She had made a will, and he was safe, and she could go to the hospital. The witness also testified to several quarrels and repeated instances of ill treatment of Hannah by Frank.</p> <p>Christina Kultz testified to the pleasant relations between her daughter Hannah and herself, and that frequently Hannah stayed all night at her mother’s house, and that she would go to her store during the day, and in the evening after business hours come back to her mother’s home; and that when Hannah was sick, on the day before the will was made, the witness had sent for the doctor; that the witness kept store for Frank while he went to get Boyer, and on Friday the witness took Hannah to the hospital; but the witness was not permitted to testify what her daughter had told her concerning the will, at the hospital, on Saturday following its execution on Wednesday. She also told of an early difference between herself on one side, and her daughter and her husband on the other, concerning rent due from them to her, and of a dispute over a piano, and of many times when Frank abused Hannah, who would come to the witness for protection, although she said that, for some months prior to the death of Hannah, Frank and the witness were on good terms. The defendants here closed their case, and the court thereupon directed the jury to return a verdict in favor of the caveatee upon all three issues, to which ruling the caveators excepted, and the jury returned their verdict in accordance with the court’s instruction.</p>

<p>Hearing on an appeal by tbe plaintiff from a judgment of the Supreme Court of the District of Columbia in an action by an administrator to recover damages for the death of his intestate resulting from the alleged negligent act of the defendant.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>George W. Moore, administrator of the intestate, James M. Moore, sued Robert T. Pywell to recover damages for the death of the intestate, caused by the alleged negligence of the defendant, who erroneously filled a prescription for the intestate, who took the medicine and died in consequence.</p> <p>At the trial the plaintiff’s evidence tended to prove that the attending physician gave to James M. Moore, then sick with typhoid fever at his home in Maryland, a prescription, one ingredient of which was 1% ounces of ecthol; that the brother of the intestate presented the prescription to the clerk at appellee’s drug store [in the District of Columbia], who submitted it to the appellee, and then filled the prescription, substituting ichthyol for ecthol; that when the prescription was compounded it was taken to the intestate’s home, and given to him according to the physician’s directions, and after he had taken two doses, on August 22, he died on August 26, 1904, and that his death was caused by the substitution of ichthyol for ecthol.</p> <p>At the conclusion of the plaintiff’s evidence, the appellee moved the court to direct a verdict in his favor on the ground that the evidence did not tend to show “an injury done and happening within the limits of the District of Columbia,” as alleged in the declaration, but in the State of Maryland; and that under the declaration the appellant’s cause of action, if he had one, was not given by secs. 1301 — 1303 of the District Code [31 Stat. at L. 1394, 1395, chap. 854], nor as declared upon, but by the Maryland statute, art. 67, Maryland Code.* The court announced'that under the pleadings and evidence, as the case then stood, it would direct a .verdict in favor of the appellee, and thereupon the appellant asked for time wherein to apply for leave to amend by referring in the declaration to the statutes of- both Maryland and the District of Columbia similar to Lord Campbell’s act. The court overruled the appellant’s motion, and gave leave to appellant to amend by declaring upon the Maryland statute alone. The appellant declined to accept such leave. It was stipulated that a juror should be withdrawn, with ■authority to the court to enter judgment in favor of the appellee if the court denied appellant’s motion to amend, such judgment to have the same effect and to preserve to the appellant the same rights as if the court had directed a verdict for the appellee and entered judgment thereon. And the appellant, upon exception to the court’s refusal to allow the proposed amendment, and to the court’s ruling equivalent to a direction to the jury to return a verdict for the appellee, brought this appeal.</p> <p>1. The contention of the appellant below, and here, is that under Code D. C. secs. 1303 — 3303, the injury is not something caused by the wrongful act, neglect, or default, as the act in terms provides, but the wrongful act, neglect, or default itself, and therefore that only such act, neglect, or default need be done or happen within the limits of the District of Columbia. V</p> <p>This would be to rewrite the act. Not only is such a construction inconsistent with the language of the act creating the cause of action, but it is equally inconsistent with the language of the proviso, namely: “That no action shall be maintained under this chapter in any case when the party injured by such wrongful act, neglect, or default has recovered damages therefor during the life of such party.” In both parts of the act, the injury is one thing, and its cause, namely, the wrongful act, neglect, or default, is another; and it is the former, the injury, which must be done or happen within the limits of the District of Columbia in order to give the action. The above is so obviously the plain meaning of the act as, perhaps, to render the consideration of authorities upon the question unnecessary. Resort to construction can be had only where the language is doubtful; “it is not allowable to interpret what has no need for interpretation.” U. S. v. Graham, 110 IT. S. 221. Resort to the authorities, however, leads to the same result. The cases cited in opposition, in so far- as they are applicable at all, are, without exception, cases in which the physical injury was inflicted in one State and the death occurred in another. No case is cited of an injury suffered in one State, resulting from some negligent act or omission in another State, which was held to give the plaintiff the right to maintain a special action, not authorized by the common law, under the statutes of the latter State.</p> <p>Where negligence, consisting in the failure to inspect machinery or appliances, occurs in one State, and an accident resulting therefrom, causing the death or injury, occurs in another, it is the law of the latter State which governs. R. R. Co. v. Becker, 67 Ark. 1; R. R. Co. v. Brown, 67 Ark. 295. See also Cameron v. V ander griff, 53 Ark. 381; The Plymouth, 3 Wall. 20, 33; R. R. Co. v. Doyle, 60 Miss. 977; Belt v. R. Co. 22 S. W. 1062.</p> <p>2. The authority offered in support of the proposition that in actions like the present the declaration's based, not upon the statute, but upon the tort, on the ground that the statute does not create the cause of action, but simply remo ves. an obstacle to recovery upon it, is some language used by Mr. Justice Brewer in announcing the opinion of the court in Stewart v. R. R. Co. 168 IT. S. 445, 448, quoted at pp. 4, 5 of appellant’s brief. But “general expressions in an opinion, which are not essential to the disposal of a case, are not permitted to control the judgment of other suits.” Harriman v. Northern Securities Co. 197 U. S. 244, 291. That the learned justice, in delivering the opinion in Stewart v. R. R. Co. intended no such corollary to be drawn, is obvious from the opinion itself, which holds, simply, that there are no such inconsistencies between the Maryland act and that in force in the District of Columbia as to preclude an action in the courts of the District upon the Maryland statute, and that therefore the plaintiff was entitled to maintain this action in the courts of the District “for the benefit of the persons designated in the statute of Maryland,” — a conclusion impossible if the holding of the court had been that the action was, as the appellant contends, not upon the statute, but upon the tort. And see to same effect Dennick v. R. R. Co. at p. 20. The Supreme Court has, in repeated instances, held in terms, that, in cases like the present, the cause of action is created by the statute, which decisions, so far from being intended to be overruled by Stewart v. R. R. Co., are cited with approval in it; namely, Texas & Pacific R. Co. v. Cox, 145 IT. S. 593, 605; Dennick v. R. R. Co. 103 IT. S. 11; Huntington v. Attrill, 146 U. S. 657; Northern Pac. R. R. Co. v. Babcock, 145 U. S. 190.</p> <p>3. But conceding that the cause of action was created by the Maryland act, could recovery be had under the declaration, which neither pleads that act, nor any facts or circumstances bringing the case within it? The negative of this proposition is, in effect, established by the principles and authorities already •cited. A recovery cannot be had upon a cause of action not ■stated in the declaration. Stewart v. R. R. Co. 6 App. D. C. 56.</p> <p>The proposition that Federal courts take cognizance of the statutes of all the States, and that it is unnecessary to plead matter of which judicial cognizance is taken within the limitations of the authorities cited, may be conceded for present purposes, none of them holding that, where the cause of action is a foreign statute, it may be omitted from the pleadings and left to judicial cognizance. R. R. Co. v. Evans, 121 Ga. 394; O’Reily v. R. R. Co. 16 B. I. 389. If, however, courts could take judicial cognizance of the statutes of a state creating the cause of action sued upon, without their being pleaded, this would not help the appellant in the present case. He would have to go further, and maintain that the courts will also take judicial cognizance of the facts, unpleaded, which, bring the case within those statutes, namely, in the case at bar, that the injury was done in Maryland, and that the death occurred there, neither of which facts is pleaded in the declaration. Union Pacific B. Co. v. Wyler, 158 IT. S. 255.</p> <p>4. The only remaining question in the case is whether there-is reversible error in the denial of the court below of the leave to amend sought. That such an application is to the sound discretion of the trial court, and that its exercise of that discretion will be interfered with only for manifest error, is familiar. B. B. Co. v. Snashall, 3 App. D. C. 420, 431.</p>

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

Hearing on an appeal by the defendants from a decree of the Supreme Court of the District of Columbia dismissing a bill in equity to establish title by adverse possession in the complainant to certain lands. The Court in the opinion stated the facts as follows: This is an appeal from a decree of the Supreme Court of the District of Columbia dismissing a bill of complaint filed by appellant, Robert B. Howison, as complainant, under see.

<p>Hearing on an appeal by the relator from a judgment of the Supreme Court of the District of Columbia dismissing a petition for a writ of mandamus to compel the Commissioners of the District of Columbia to issue him a building permit.</p> <p>The facts are stated in the opinion.</p>

<p>Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia dismissing a judgment creditors’ bill.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from a decree dismissing a creditors’ bill filed by the appellant, Agnes B. Collins, executrix of Joseph B. Collins, [against Charles Bidgeley McBlair, Florence M. McBlair, Watson J. Newton, trustee, and E. Southard Parker, trustee] to subject to sale the interest of Charles Bidgeley McBlair in certain lands, in satisfaction of two judgments.</p> <p>Newton and Parker are trustees in a deed in trust made April o, 1902, by said McBlair, to secure the sum of $1,500 to one Daniel Paul. No reason appears for making Florence McBlair, wife of defendant, a party. Defendant Charles B. McBlair answered averring that the judgments had become extinct before the filing of the bill. The trustees answered, setting out the trust, and alleging that it was a prior lien to any claimed by the complainant. Florence B. McBlair entered a demurrer to the bill, which was sustained before the dismissal of the bill as to her codefendants.</p> <p>From an agreed statement it appears that Charles B. McBlair is seised of an interest in the land as alleged in the deed. It is also agreed that two judgments were recovered by Joseph B. Collins against defendant-McBlair in the supreme court of the District of Columbia, on April 7, 1875, for $200 and $315 respectively. Executions issued there on September 27 were returned October 5, 1875, nulla bona. Scire facias issued April 4, 1887, was returned April 4, 1887, and fiat was entered thereon June 29, 1887. June 29, 1887, fieri facias issued and was returned nulla bona August 27, 1887. March 20, 1893, death of Joseph B. Collins was suggested, and Agnes B. Collins was made party plaintiff as his executor. May 13, 1899, scire facias issued and was returned May 13, 1899, scire feci. No appearance was made by defendant to the writ, but no action was taken thereon until October 23, 1903, when plaintiff appeared and obtained a fiat for the amount of each judgment, with interest at 10 per cent per annum from July 23, 1875. Fieri facias issued December 11, 1903, was returned the same day nulla bona. The bill was filed December 15, 1903.</p> <p>1. The issuing of the writs of scire facias on May 13, 1899, and their return on May 15, 1899, scire feci stopped the running of the statute of limitations (Diggs v. Fliason, 4 Church, C. C. 662; Willett v. Otterbach, 20 D. C. 324), and the statute must remain suspended during the progress of these proceedings, as in the case of an original action. For the reason that a scire facias to revive a dormant judgment is to all intents and purposes an “action at law” (Smyth v. Ripley, 33 Conn. 331), to which the defendant “may plead in the same manner as to an action founded upon an original writ” (Weaver v. Boggs, 38 Md. 264), and judgment upon a scire facias is a new judgment and has all the attributes of the original (Weaver v. Boggs, supra; Millihin v. Duvall, 7 Gill & J. 361). Hence the issuance of a writ of scire facias, and the return of the same into court as served, operates to suspend the running of the statute the same as in an original writ so returned. The fact that a fiat was not taken until October 23, 1903, can only raise a presumption of lack of “due diligence” on the part of this appellant in not taking it, upon the default of the defendant to appear and answer. And the “question of diligence is a question of fact to be shown to the court by proper proof.” Parsons v. Hills, 15 App. D. C. 551; Brown v. Co. of Buena Yisia, 95 H. S. 157; Moffet v. Peoria Water Co. 73 Sup. Ct. Bep. N. Y. 83 Him.</p> <p>2. It is a general rule that judgments of the courts which ha.ve jurisdiction of the subject-matter and of the persons of the parties to the litigation stand of binding force and effect until reversed, vacated, or set aside in a direct proceeding for that purpose, and cannot be collaterally attacked. 12 Ency. PI. & Pr. p. 196; Hung erf or d v. Sigerson, 20 How. 161; Grim v. Handley, 94 IJ. S. 653; Thompson v. Tolmie, 2 Pet. 163; McNitt v. Turner, 16 Wall. 366; Gragin v. Lovell, 109 IJ. S. 198; Hawley v. Mancius, 7 Johns. Ch. 182; Grignon v. Astor, 2 How. 338; Haw v. Ritchie, 136 H. S. 548; Broderick’s Will, 21 Wall. 503; Boherer v. Boy, 3 McArth. 145; Joes v. Finch, 28 Conn. -; Haws v. Hathaivay, 14 Mass. 233; Gaonette v. Young (N. H. 1892) 32 Atl. 157; Gassenheimer v. Beeson, 18 Tex. 754; Grant v. McKinney, 36 Tex. 62.</p> <p>3. The court did not err in granting said fiats. The defendant had been in default by not appearing or answering as commanded by the writs of scire facias served on him May 13, 1899, and plaintiff, by virtue of the rule of the supreme court of the District of Columbia, which has the force of statutory enactment, could take judgment by default “at any time after the day fixed for his appearance.” No. 61 Common Law Pules— Pules Supreme Ct. of D. C.</p>

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia on a verdict directed by the court in an action to recover damages for personal injuries. The Court in the opinion stated the facts as follows: This action was brought in the supreme court of the District by the appellant, Paul D. Barstow, an infant, through his father, Francis D. Barstow, as his next friend.

Hearing on cross-appeals from a decree of the Supreme Court of the District of Columbia in a suit for the establishment of a trust in alleged partnership property, for a partnership accounting, etc. The Court in the opinion stated the facts as follows: Both the complainant and the defendant in the same suit have-appealed from certain parts of the same decree.

<p>Hearing on an appeal by the applicant from a decision- of the Commissioner of Patents in a proceeding for the registration of a trademark.</p> <p>The facts are stated in the opinion.</p>

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

<p>Patents, Interference; Appeals; Diligence.</p> <p>1. There is no arbitrary rule or standard by which diligence may be measured, but each case must be considered and decided in the light of the circumstances of that case.</p> <p>2. Where, on an appeal, the facts are admitted and a mere question of law is involved, this court will not hesitate to reverse the judgment appealed from, if convinced that an erroneous conclusion was reached. (Following O’Connell v. Schmidt, 27 App. D. C. 77.)</p> <p>3. The law does not require that the one who first conceives a practical invention shall perfect it thereafter to such an extent that it is better than the invention of another who subsequently entered the field but only that the first to conceive shall be using reasonable diligence in endeavoring to protect and adapt his invention when such other enters the field.</p> <p>4. The law encourages such delay in applying for a patent as is required to test the thoroughness and utility of the supposed invention, and to prevent the Patent Office from being overloaded with applications for patent for crude and incomplete devices. (Following Griffin v. Swenson, 15 App. D. O. 135.)</p> <p>5. In an interference involving the invention of an improvement in roller side bearings for railway cars, where neither party actually reduced to practice, and the junior party coneededly was the first to conceive, diligence on the part of the latter, entitling him to an award of priority, is sufficiently shown where it appears that during the four months between conception and the filing of his application he made blackboard drawings of the device, which, owing to its nature, answered the same purpose as the making of a model; almost daily discussed with another, also skilled in such matters, the details of the construction shown, with a view to obviating certain objections urged; and embarked in business for himself with very little capital to do so. (Following Griffin v. Swenson, supra.)</p>

<p>Patents ; Interference.</p> <p>Woods v. Poor, ante, 397 applied and followed.</p>

<p>Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia on a verdict directed by the court in an action of ejectment.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>The appellees, Florence Y. B. Cadick, Einma J. Balster, John Balster, infant, by Florence Y. B. Cadick, next friend, and Charles Kohler. Balster, by Florence V. B. Cadick, his next friend, as plaintiffs, filed a declaration in ejectment against the appellant, Theodore Balster, to recover lot 4 in square 465 in the city of Washington.</p> <p>Appellees are the children of the appellant and his late wife, Johanna Balster. The lot was conveyed to Theodore Balster in 1881. On March 1, 1895, he conveyed the same to Louise M. Kohler, a sister of his wife. On the next day Louise M. Kohler conveyed to Johanna Balster. The consideration recited in the two last deeds is $10. Appellant and his said wife, with their younger children, occupied the premises until the death' óf the wife July .4, 1903. Appellant has since remained in possession of the premises. Johanna Balster died, leaving a-will, since duly probated, in which, after a, provision for the payment of all just debts, she bequeathed to the appellees “all my property of every kind, to be divided between them equally.” After further proof relating to the value of the occupation of the. premises, the plaintiffs rested. The defendant, through his counsel, stated that he relied alone upon his tenancy by the curtesy, and announced that he expected to prove- that the original purchase of the lot. was made with his own separate funds, no' contribution having béen made hy his said wife. That the nominal consideration in the deed to Louise M. Kohler was not paid, nor Avas any other consideration. That ’neither the nominal. consideration recited in the deed from her to Johanna Balster, nor any other consideration, was paid therefor. That the reason for the two conveyances was that appellant, on the eve of the execution of the conveyances, was ill and'believed his- death • imminent, and desired to pass the title to his wife without the expense of making á will and that of its subsequent probate. That the conveyance to, Louise M.: Kohler was as an intermediary between him and his said wife. That Johanna Balster- was seized of the premises during her life, and that appellees are the issue of his marriage with her. ■ ‘</p> <p>Upen this statement, the court, on motion of plaintiffs, directed a Arerdict in their favor. From the judgment entered thereon, defendant appealed. !</p>

Hearing on an appeal by tbe defendants from a decree of tbe Supreme Court of tbe District of Columbia in a suit in equity to set aside certain transfers of property and an agreement for dissolution of a partnership.

Hearing on an appeal from a decision of the Commissioner of Patents in an interference proceeding. The Court in the opinion stated the facts as follows: This is an interference proceeding involving priority of invention of a manifolding apparatus adapted to make, simultaneously, an original and two or three copies. The original is retained in a record book, while two of the copies, in the form of slips connected in pairs, are adapted to be removed.

On April 11, 1907, Mr. Leo Simmons and Mr. Samuel Maddox submitted to tbe Court an ex parte petition by tbe Hnited States, at tbe relation of Alice G. Holmead, for tbe writ of prohibition.

<p>Hearing on an appeal by 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 bond.</p> <p>The facts are stated in the opinion.</p> <p>1. No arrangement entered into between Mrs. Iiine and Waggaman -would release the trustee or his surety of responsibility to account for the funds coming into his hands under the decree of the court. Forrester v. State, 46 Md. 154, 162 — 164; Re Williams, 1 Md. Ch. 25; Hendrick v. Lindsay, 93 U. S. 143, 146 — 150; Adair v. Bremer, 74 N. T. 539; Cavender v. Cavender, 8 Fed. 641; Brooks v. Brooke, 38 Am. Dec. 310.</p> <p>2. Inasmuch as the present suit is being prosecuted by the United States of America, the obligee of the bond, against the obligor, Waggaman and the surety thereon, Clarke, to recover funds received by the obligor, Waggaman, under the decree of the equity court passed in 1899, it is quite clear that Waggaman is estopped and his surety Clarke is estopped from denying the jurisdiction of the court to enter the decree, no matter whether such decree is valid or invalid. Stephens v. Crawford, 1 Ga. 574, 44 Am. Dec. 680, 686; Kincannon v. Carroll, 30 Am. Dec. 391; Daniels v. Tearney, 102 U. S. 415; Ploughman v. Henderson, 59 Ala. 559; Moore v. Earle, 91 Cal. 632; Parker v. Campbell, 21 Tex. 763; Cutler v. Dickinson, 8 Pick. 386; Williamson & McAthur v. Woolfe, 37 Ala. 298; Norris v. State, 22 Ark. 524; Burnett, v. Henderson, 21 Tex. 588; Coons v. People, 76 111. 383; Bell v. People, 94 111. 230; Allen v. Magruder, 3 Oranch, O. O. 6; Mix v. People, 86 111. 329; High, Deceivers, 3d ed. § 124; Twin City Power Co. v. Barrett, 126 Fed. 302, 309.</p> <p>3. The decree oí sale cannot be collaterally questioned. McCormick v. Sullivant, 10 Wheat. 192; Skillem v. May, 6 Oranch, 267; Clary v. Hoagland, 6 Cal. 685; Tollman v. McCarty, 11 Wis. 401; Dugan v. Baltimore, 70 Md. 1; Ex parte Watkins, 3 Pet. 191, 203, 209; Ex parte Parks, 93 U. S. 20; Florentine v. Barton, 2 Wall. 216; Pulaski Co. v. Stuart, 28 Gratt. 879; Harvey v. Tyler, 2 Wall. 328, 342; Calpin v. Page, 18 Wall. 350; Thompson v. Tolmie, 2 Pet. 156; Grignon v. Astor, 2 How. 318; Vorhees v. Banlc of United States, 10 Pet. 447, 473, 477; Griffith v. Bogert, 18 How. 158, 164.</p> <p>4. The bond is a valid common-law obligation. A bond, although not good as a statutory bond because of a want of jurisdiction in the court in the matter, may be good as a common-law obligation. Dudley v. Bice, 1T9 Wis. 97, 95 N. W. 936; United States v. Tingey, 5 Pet. 115; United States v. Bradley, 10 Pet. 343; Twin Gity Power Go. v. Barrett, 126 Fed, 302 (C. C. A.) ; McVey v. Peddie (Neb.) 96 N. W. 166. A trustee receiving money from the sale of trust property must account for it,' regardless of the validity of the title by which the property was held. Griffith v. Godey, 113 H. S. 89. See also State ex rel. Dair v. Boudebush, 16 N. E. 636; McVey v. Peddie, 96 N.' W. 167, citing' Stevenson v. Morgan, 93 N. W. 180; United States v. Bradley, 10 Pet. '343, 360-365; Justices v. Smith, 2 J. J. Marsh. 418; Johnson v. Laseire, 2 Ld. Raym. 1459; United States v. Mason, 2 Bond, 183; Crawford v. Howard, 9 Gra. 314; United States v. Tingen, 5 Pet. 115; United States v. Pumphrey, 11 App. D. C. 44; United States v. Linn, 15 Pet, 290; United States v. Bradley, 10 Pet. 343; Tyler v. Hand, 7 How. 573; Howgate v. United States, 3 App. D. C. 277.</p> <p>5. The supreme court of the District having exercised jurisdiction over the subject-matter of the suit in which the bond was given, its determination of its own jurisdiction is, after this lapse of time, binding upon all persons before the court in thai case, including the trustee, Waggaman, and his surety, Clarke ; and defendants are now precluded from questioning the jurisdiction of the court to decree the sale, appoint the trustee, and require the bond. Florentine v. Barton, 2 Wall. 210, 216; Evers v. Watson, 156 H. S. 527, 533; State v. Waupacca Banlc, 20 Wis. 640. The test of jurisdiction is whether the court had power to enter upon the inquiry, not whether its conclusion was right or wrong. Lalce County v. Plait (O. C. A.) 79 Fed. 567; Brown, Jurisdiction, secs. 64-66.</p> <p>•' 6'. • The affidavit of defense does not deny the right of the plaintiff and'does .not state grounds of defense, which would, if true, be sufficient to defeat the plaintiff’s claim in whole or in part.</p>

<p>In error to the Police Court of the District of Columbia.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is a writ of error to the Police Court of the District of Columbia, wherein the plaintiff in error, the Penn Bridge Company, was convicted of violating the eight-hour law upon three separate informations substantially charging that the Penn Bridge Company was a contractor to erect in the District of Columbia a concrete bridge on 16th street, over Piney Branch creek. That the plaintiff in error was a contractor upon a public work of the District of Columbia was admitted. It was charged that, on the days mentioned in the three separate informations, the Penn Bridge Company unlawfully and intentionally required and permitted Oscar Shillingberg to work more than eight hours on each day. Upon the undisputed testimony the Penn Bridge Company, which had a contract with the District of Columbia to construct this public work, prosecuted it; and on the 21st, 22d, and 26th days of September, 1906, Shilling-berg, a carpenter, actually worked upon the bridge more than eight hours per day. It was further proved that Shillingberg worked more than eight hours per day on many other days, and that during the month of September in that year all the carpenters worked from 7 o’clock in the morning until half past 5 in the afternoon, except during a half-hour recess at noon.</p> <p>On behalf of the defendant, evidence was offered tending to show that the reason why Shillingberg and other carpenters worked more than eight hours a day was that during September the bridge company was engaged in the construction of the arch of the bridge; and that the specifications, which had been changed after the date of the contract, required the bridge company to put in a certain amount of concrete masonry within a time limited; and that it was not possible to do the work specified and required within a period of eight hours’ daily work, because if the work was stopped at the end of eight- hours the concrete would harden and might be cleft, causing cracks and ■perhaps disintegration of the:arch.- The work specified could not be completed in eight hours; and if the first gang of workmen had quit at the end of eight hours, the bridge company could not secure men who would work a few hours only each day. Meigs, the superintendent of the plaintiff in error, testified the work was done-under the direction of the engineers of the District, who knew that the contractor’s men-worked more than eight hours daily; the employees were paid by the hour, and only worked more than eight hours a day on account of what the contractor believed to be extraordinary emergencies. The- plaintiff in error offered to show that the first emergency arose when the engineers of the District changed the plans in respect to -the depth of the excavation to be made, and. that it was impossible to work men in shifts because of the scarcity of workmen.</p> <p>Upon the motion of counsel for the'defendant in error the court struck out all the evidence introduced, by the defendant to show that an extraordinary emergency existed which' required the employment of Shillingberg more than eight hours on-the three days named in the declaration.</p> <p>' 1. The statute passed upon in Atjcin v. Kansas, 191 U. S. 207, was known as the eight-hour law of Kansas bf 1891,■ and-is not in all respects similar to our statute, although it is more or less similar to it. In that case the Supreme Court of the United. States, speaking through Mr. Justice Harlan, upheld the constitutionality of such legislation. It is suggested, however, that three able members of the Supreme Court dissented from the decision of the majority, and that the same question is again before the Supreme Court of the United States for review, and that the action of this court should await the decision of the Supreme Court of the United States on this same question. It is urged that all that the Supreme Corut of the United States decided in that case was that a statute providing that eight hours should constitute a day’s work for all laborers employed by the state or by any of its municipalities, and making it unlawful for anyone thereafter contracting to do any public work to require or permit a laborer to work more than eight' hours in any one calendar day, is valid. We do not understand the .court in that case to say that it approved and upheld the legislation, which makes the violation of a civil contract a criminal offense. As was said by the Supreme Court of the United States in Robertson v. Baldwin, 165 U. S. 281, the breach of a contract for personal service has not, however, been recognized in1 this country as involving a liability to criminal punishment, except in the case of soldiers and sailors and possibly some others; nor would public opinion tolerate a statute to that effect. - 1</p> <p>The decisions against the validity of the legislation now under consideration are numerous, and the decisions on both sidésnof the question are practically all collected in volume 65 of the Lawyers’ Reports Annotated, at page 33, where the court-will find a full discussion of this subject, and practically all the cases gathered together. -■ :</p> <p>2. The police court was in error in refusing to permit the defendant to offer testimony tending to. show that the work in question was done under conditions which brought it' within the emergency clause contained in the statute. The defendant attempted to show that when the contract in question was made it could have done the work required of it by working its laborers and mechanics only eight hours per day. .The,engineers of.the District of Columbia discovered conditions which, to their mind, made it essential and necessary to deepen the excavation in some respects, and to change the work in others, so that the Penn Bridge Company found it impossible to go ahead with the work unless some of its employees worked more than eight hours per day. And they further attempted to show that this was a condition which they could not have anticipated at the time the contract was executed.</p> <p>We have been unable to find any Federal decisions on this feature of the case, as to what constitutes an extraordinary emergency, except the decision of a nisi prius judge in Massachusetts, which is not reported. See, however, People ex rel. TJsoy v. Waring, 52 N. T. App. Div. 36.</p>

Hearing on an appeal by the caveator from a judgment of tbe Supreme Court of the District of Columbia sitting as a probate court, admitting a will to probate after the trial by jury of issues framed to test its validity. The facts are stated in the opinion.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia upon a verdict of a jury in an action to recover damages for personal injuries. The Court in the opinion stated the facts as follows: This is an appeal from a judgment of the supreme court of the District.

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

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

Hearing on an appeal by tbe defendant from a judgment of the Supreme Court of the District of Columbia on verdict in an action for tbe alleged breach of a contract. The Court in tbe opinion stated tbe facts as follows: Tbe appellee, Ernest Loffler, sued tbe appellant, Hugh Harten, for breach of contract. Tbe appellant owned a parcel of land on Brightwood avenue, or 7th street road,. % mile north of Brightwood, in this District.

Hearing on an appeal by the defendants, the Commissioners of the District of Columbia and the Treasurer of the United States, from a decree of the Supreme Court of the District of Columbia in favor of the complainant in a suit in equity to establish its right to balances claimed to be due on certain contracts with the District of Columbia for paving streets. The Court in the opinion stated the facts as follows: Appeal from a decree of the supreme court of the District.

<p>Hearing on, an appeal from a decree of the Supreme Court of the District of Columbia, passed in a lunacy proceeding, discharging a rule to show cause and denying a petition filed by the alleged lunatic, and from a decree in the same proceeding confirming a report of the auditor, and authorizing the committee to make a final settlement in accordance therewith.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>It appears from the record in this case that on March 11, 1898, the District Commissioners filed a petition in the supreme court of the District, alleging that one William J. Logue, a resident of said District, was a lunatic of “homicidal and otherwise dangerous tendencies;” that the cause of lunacy is unknown ; that he is unfit to be at large, and, if permitted to remain at liberty, persons and property in said District and the public peace thereof will be endangered; and praying that a writ de lunático inquirendo may be issued. On the same day the justice presiding in said court ordered the writ to issue. On March 16, 1898, the marshal of the District issued a writ notifying the said Logue that a jury had been summoned to determine the issue of his lunacy, and to inquire into his ownership of property, and so forth, and directing him to appear on the same day if he saw proper so to do. This writ was returned on the same day served upon the party. Return was duly made to court by the marshal, reciting a verdict signed by thirteen jurors, showing that they had, on said 16th day of March, 1898, found the said Logue to be a lunatic, and that he had been such since March 8, 1898; that he had no lands or tenements, and neither wife nor children. March 24, 1898, the court passed an order confirming said verdict.</p> <p>On December 5, 1904, one George S. Wilson, secretary of the board of charities of the District, filed a petition in the equity court, alleging that said Logue was adjudged insane on March 24, 1898, and has been confined in the Government Hospital for the Insane since January 11, 1899; that he has been and is now supported by the District in said hospital as an indigent person; that no one has contributed or is contributing to his support, the cost thereof falling entirely upon the said District; that said Logue is entitled to a pension from the 'United States by reason of service in the Army, at the rate of $8 per month, which has not been collected since December 8, 1898, and he has no other property; that for the purpose of collecting this pension and applying the same to the necessary expenses of the lunatic it is necessary that a committee be appointed. The record shows no notice to the said Logue. On the same day, the court passed an order appointing Frederick A. Fenning committee, requiring him to execute a bond in the sum of $1,200 for the faithful performance of his trust, and authorizing him to pay to the Government Llospital for the Insane the sum of $5 per week for the maintenance of said lunatic, until the further order of court.</p> <p>On November 6, 1906, the first account of the committee was filed, showing receipts amounting to $581.32 from the collection of the arrears of the pension payable to said lunatic. The disbursements were shown to be $106.78, and representations were made as to certain other expenses. This account was referred to the auditor, who made report thereon showing a balance on hand to the credit of the lunatic of $420.54.</p> <p>December 6, 1905, a petition was filed by said Logue, in which he alleged that he is the person named in said cause as of unsound mind; that as such insane person he was committed to the Hospital for the Insane, as shown by the proceedings in said cause; that the committee, Fenning, filed an account showing certain money in his possession belonging to petitioner, which was referred to the auditor, whose report shows a balance due petitioner of $420.54; that on December 4, 1905, petitioner was discharged from said hospital and declared to be sane, and his status as a person of sound mind had been restored by order of court entered in a habeas corpus proceeding on December 6, 1905; that said Fenning has refused to pay over the balance due petitioner as aforesaid, and has disclosed the intention to hold the same subject to a claim made by the superintendent of said hospital; that petitioner is a pensioner at the rate of $8 per month, and that three months’' dues were payable at the pension agency in the District on December 4, which cannot be collected by petitioner because his pension certificate is in the hands of said superintendent; that-petitioner was discharged without any money and with scant clothing, and is in need; that for years he has been improperly held in said insane hospital while possessed of his reason; that the appointment of the committee was irregular, because without petitioner’s knowledge or consent, and without his presence in person or by attorney. The prayer is for an order to the committee to ■surrender the money in his hands, and his pension certificate. An exhibit attached to the petition is a copy of an order made by one of the justices of the supreme court of the District on December 4, 1904, reciting the sworn statement of the superintendent of the hospital that petitioner is of sound mind, and in accordance therewith discharging him from custody, and declaring him restored to his former legal status as a person of sound mind.</p> <p>Having been served with a rule to show cause, the committee filed an answer to this petition on December 15, 1905. It alleged that he had filed the account before mentioned, and that the auditor had reported thereon; that said account expressly excepted the item of maintenance in the hospital subsequent to December 31, 1904, no payment therefor having been made for the reason that he had no statement from the said superintendent of how much would be retained by him from the pension -of the petitioner collected by said superintendent; that he is now in receipt of said statement, showing the said amount and reciting that all pension money drawn by said superintendent will be surrendered upon the payment of his said account. An order is prayed, directing that upon' payment of the balance due said hospital, and upon receipt of the pension-money from said superintendent, his account be referred to the auditor for final statement. On the same day the court passed an order directing the committee to forthwith pay said Logue the sum of $200 from the- fund in his hands; and it was further ordered that the account be referred back to the auditor, together with all unsettled claims, for a final accounting. The committee’s additional report showed that the claim of the superintendent of the hospital amounted to $241.43. The $200 ordered to be paid to said Logue was delivered to him, and his receipt taken therefor. On February 21, 1906, the said Logue filed a motion praying the court to modify the order passed December 5, 1904, authorizing the payment by the committee of $5 per week for the maintenance of said lunatic in the said hospital, on the ground that the order was not in accordance with the act of Congress approved February 20, 1905, prescribing and limiting the charges of the said hospital against the money of pensioners. This motion was overruled March 2, 1906.</p> <p>The auditor made his report on the final account of March 21, 1906. Taking the former report as a basis, with the balance then declared, and interest, he found the balance to be $422.50. Charging against the same the $200 before ordered paid to Logue, and certain costs, the items of which were not challenged, he reported a balance of $202.79. The question then occurred whether the final account of the hospital be allowed at the rate of $5 per week, as formerly ordered by the court, or at the rate of $6.66 per month under certain regulations of the Secretary of the Interior relating to pensioners confined in the hospital. The auditor, being of the opinion that the order of the court governed, allowed the claim at the rate prescribed therein, amounting to $241.43. The allowance of this charge exhausted the balance aforesaid, and made a debit of $38.64 against the petitioner. There was nothing before the auditor showing the amount of pension money that had' been collected by the superintendent of the hospital, and which is to be accounted for by him in final settlement. In this connection it is to be remarked that a last report of the committee on September 20, 1906, shows that by crediting the account of the hospital with pension money in hand, the balance due the same was $157.43, which, if correct, shows a balance in the hands of the committee of $45.34 due to petitioner, and subject to such charges for costs and expenses as may be proper on final settlement.</p> <p>The said Logue, on April 24, 1906, filed a petition to show cause, against the committee. This petition is lengthy, and its allegations may be summarized as follows:</p> <p>At the time of his commitment to the Hospital for the Insane petitioner was suffering from overindulgence in alcoholic drinks, but was sound in mind and body, and was therefore illegally restrained of his liberty until discharged December 4, 1905. While so illegally restrained, the proceedings for the appointment of his committee were had without notice to or appearance by him, and, as he desired his pension money to accumulate until the restoration of his liberty, he would not have consented to said proceeding. The order was passed improvidently, and no guardian ad litem, was appointed to represent him. That the funds collected by the committee, as shown in his first account, were collected and disbursed at great expense, and said account is incorrect. Special exception is made to so much of the final report of the auditor as recognizes the claims of the hospital for any period after February 20, 1905, at the rate of $5 per week. The prayers of the petitioner were that the order of December 5, 1904, appointing said committee, be adjridged to-be null and void; that the committee be ordered to refund and pay over to petitioner such money from said fund as has not been disbursed by him with the authority and consent of petitioner; that all the accounts be referred to the auditor to state a just account; that in the event of the foregoing prayers being-refused, that so much of the order of December 5, 1904, as required the payment of $5 per week to the hospital be adjudged to have ceased and determined on February 20, 1905, under the provisions of the act of Congress approved that day, and the regulations thereunder fixing the payment by pensioners to the hospital, etc.</p> <p>The answer of the committee recited the facts as to the first account and audit, alleged fairness in all charges for disbursement, and prayed that the rule be discharged.</p> <p>On June 26, 1906, the court passed a decree discharging the said rule and denying the petition. On June 27, 1906, a final decree was passed approving the auditor’s final report, and authorizing the committee to make a final settlement in accordanee therewith. From these decrees the said Logue has prosecuted this appeal.</p>

<p>Hearing on an appeal from a judgment of the Supreme Court of the District of Columbia on a verdict directed by the Court in an action of assumpsit.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an action of assumpsit brought by the appellant, the Virginia-Carolina Lumber Company, against the appellees, Erank J. Eisinger and Walter G. Eisinger, trading as Eisinger Brothers, to recover the sum of $230.12, the price of a carload of lumber sold and delivered to them April 20, 1905. Defendants pleaded non assumpsit and a set-off in the sum of $157.85, of which $67.47 were for freight paid on said lumber at request of plaintiff. There is no conflict in the evidence, which consists, on all material points, of correspondence between the parties. The proof shows that plaintiff’s agent offered to sell the defendants certain lumber, • described as sheathing, at the rate of $14 per thousand feet, delivered in the city of Washington; freight payable by plaintiff. Defendants’ letter in reply dated April 6, 1905, acknowledged the offer of two or three cars of the designated lumber at said price, and after saying that this was the price they were paying “for good sound edge box D 1. S.,” and that they could get “the red heart and mill cull sheathing for $12.50,” added: “If what you have to offer is good sound regular edge box, we will try a car or two of it, but if it is the red heart and mill cull kind, we don’t want it. If this is all right and you conclude to ship us a car we would like it to come via B. & O. to N. Y. Ave. Yard.” Plaintiff replied to this on April 8, and, among other things of no importance, said: “In order to make a beginning with you, you might take a small carload as a trial, and if not satisfactory we could not expect to sell you more of the stock.” Plaintiff wrote again on the llth saying that it had not heard from defendants, and that it has a carload of sheathing on hand that it “would be glad to ship as a trial.” Defendants replied to this: “We understood that you would send us this one car as a trial. Let it come.” The car was shipped,' and, when received, defendants wrote immediately saying that the lumber would not do at all; that they had better lumber bought for red heart for $11.50; that the carload sent is by far the worst they have had for a long time; that they would, therefore, have to cancel the order for the other cars given upon condition that the first would prove satisfactory; and that if good sound edge box could be sent “all right, but we cannot úse anymore like sample unless you can make price $11.50.”- Later on the same day they wrote: “We find on further inspection that it is far worse than what we first thought, and will have to decline it altogether. We cannot use this kind of lumber at any price. We have hauled the car and have it piled in our yard subject to your order upon the payment of charges.” Plaintiff replied to these communications, regretting •that the stock was not satisfactory. After stating that like lumber had been sent to other parties who regarded it as worth the money, it stated that shipment of the other cars had been stopped by telegraph to the mill. On the next day plaintiff wrote again, saying that the matter would be taken up again in about a week on the return of the writer, and adding: “In the meantime we trust that you will look around and see if you can find a customer for the stock that will let us out of the same.” No further correspondence was had until August 4-, 1905, when plaintiff wrote to defendants, referring to the complaint, and saying: “No doubt in view of the unusual demand for lumber since this car was shipped you, you have been able to dispose of this stock. We would thank you to let us have check and freight bill in settlement.” August 26 defendants replied, referring to the former letter saying they would not take the lumber at any price, describing it as almost worthless, and proposing that they would accept it in discharge of the freight bill that had been paid, otherwise the plaintiff could pay charges and take it away. Plaintiff replied on August 30, stating that an agent would come in a few days to “arrange disposition for this stock,” and declining the offer to give the lumber in discharge of the freight bill. On September 16 plaintiff wrote again, saying that, as the stock was in defendants’ yard, plaintiff would have difficulty in interesting other parties. The letter contained the following: “We therefore write to ask you if you are in a position to make us a reasonable offer for this stock; if not, please advise what will be the cost of reloading-same and we will reship it to another point, of course refunding you the amount of freight which you have paid. We will, of course, very much prefer to dispose of the stock to you if we can do so on a reasonable basis.” Defendants replied on the 22d, saying that the lumber was practically worthless, but they would pay $5 per thousand for it, which would amount to $16.43 after deducting the freight bill. Plaintiff replied on the 23 d, expressing surprise at the tone of defendants’ letter, complaining of the unloading of the car, and saying it would refund freight provided defendants would load the lumber in a car; otherwise would insist upon settlement. Plaintiff wrote again on September 28, October 3, and October 13, 1905. These letters were not replied to, and add nothing that is of importance.</p> <p>Upon the conclusion of the evidence the court directed the jury to find a verdict for the defendants for the amount of the freight advanced by them, namely $67.4:7.</p>

Hearing on an appeal by tbe defendants from a judgment of the Supreme Court of the District of Columbia on a verdict directed by the court in an action on a promissory note.

Hearing on an appeal from a decree of tbe Supreme Court of tbe District of Columbia overruling exceptions to and confirming a report of tbe auditor in a suit to foreclose a mortgage.

<p>Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia in an action to recover damages.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from the supreme court of the District. The appellee, Laura H. Guerdrum, as plaintiff below, sued ,the defendant, James W. Slye, appellant here, for entering upon her premises known as lot 37, in block 1, in Mrs. Oregon L. Green’s subdivision of the tract of land called Chichester, in said District of Columbia, and cutting down and destroying a hedge. Plaintiff’s evidence showed that this hedge “was 18 inches within the party line, and wholly on plaintiff’s real estate.”</p> <p>At the close of plaintiff’s evidence the defendant moved the court to instruct the jury to render a verdict for him on the ground that the plaintiff had not proved actual or constructive possession of said property at the time of the commission of the trespass complained of. Upon the denial of said motion the defendant proceeded to introduce testimony in his own behalf. During the introduction of this testimony he offered a part of sec. 166 of the building regulations of the District, which was objected to by the plaintiff and excluded by the court. Said section, as offered, reads as follows:</p> <p>“All party fences shall be erected and kept in good repair by the proprietors of the ground on each side, at their joint expense: Provided, The ground on each side shall be inclosed, used, or occupied; and if any person whose duty it shall be to make or keep in good repair any fence or part of fence shall neglect or refuse to do so for five days after request being made by tbe other party interested or his agent, then it shall be lawful for the party so making request, as aforesaid, to make or repair the whole fence or part of the fence. The new fence must be a rough board fence with tight or close joints, unless otherwise agreed upon hy adjoining parties, and the repairs must be made of similar materials to those of which the fence is constructed.”</p> <p>No exceptions were taken to the instructions of the court to the jury, and the bill of exceptions does not purport to contain the substance of all the testimony.</p>

<p>Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia on verdict in an action to recover damages for injury to property.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>Appeal from a judgment of the supreme court of the District of Columbia, on a verdict for plaintiffs, Robert C. Cumberland and John Otis, trading as John Cumberland & Son, appellees here, for injuries to their boats and other property from petroleum residuum and coal tar, which they alleged defendant, the Brennan Construction Company, a corporation, appellant here, ■“wrongfully and injuriously permitted to escape into the Potomac river from certain property possessed and occupied by said defendant on the banks of said river.”</p> <p>The appellees at the time of the injury complained of were, and had theretofore been, engaged in the business of hiring, building, and storing boats, and their boathouse was located on the Potomac river, at the foot of P street, N. W. The appellant owns property situated on K street, N. W., in Georgetown, and extending from 31st street to the river, about four blocks above appellees’ boathouse. Appellant’s premises are located on a side hill which slopes quite abruptly towards the river. Upon these premises, and almost within 200 feet of the water’s edge, appellant maintained two large tanks with a capacity of 7,000 gallons each, and kept each constantly filled with petroleum residuum, “or asphalt oil,” which appellant there used in making asphalt for use on the streets of the District. This petroleum residuum contains some coal tar, and is a dense, black, adhesive, and oily substance. There was evidence that in 3904 a small quantity of this substance was observed upon the surface of the river in the vicinity of appellant’s premises, but that no particular damage then resulted. In 1905, however, the evidence shows beyond question that a large quantity of this substance found its way to the river from appellant’s premises, and expanded and extended to a point below the premises occupied by appellees, and remained upon the surface of the water a considerable period of time; and that in consequence appellees’ boats and other property were damaged. There was evidence that the “stuff was thick enough to hold a lump of coal,” and that, after it got upon the water, boats had to be cleaned every time they were used.</p> <p>Appellant admits that in January, 1905, about 1,500 gallons of this substance escaped from one of its tanks through a broken drip valve which was attached to the bottom of the tank for the purpose of drawing off any water that might by chance get into the tank, but contends that said valve was of approved make, and that no .negligence attached to the escape of oil on that occasion. Owing to the theory under which the ease was submitted to the jury, it is not necessary to inquire whether negligence attached to the escape of oil on this occasion. It is enough to say that the oil found its way to the surface of the^ river, and that the Brennan Company thereupon gathered up a considerable quantity of it, but permitted the larger part of it to remain. The plaintiff introduced testimony at the trial tending to show that some of the oil found upon the surface of the river came from a waste pipe which extended from the defendant’s premises to the water. We will not stop to specially consider this testimony, because the court in submitting the case to the jury made no distinction between the escape from this waste pipe and the escape of the 1,500 gallons in January. j</p> <p>At the close of all the evidence the defendant requested thé court to direct a verdict for the defendant. This request being refused, the defendant then requested the court to instruct the jury: _ _ ■ '</p> <p>_ _ First, that if they found that the oil escaped accidentally from the tank of the Brennan Company, without negligence on the part of said company, and thereafter seeped through the ground, and was discharged into the river, and thereafter found its way to plaintiffs’ place of business, plaintiffs could not recover, because the accidental escape of the oil was not the proximate cause of the accident; second, that, if the escape of oil from defendant’s premises was due to accidental or unknown causes, and was not due to any negligence or carelessness of the defendant, the plaintiffs could not recover.</p> <p>These instructions were refused, and the court thereupon instructed the jury that, if they found that the oil which was stored iii the tanks of the defendant company escaped and caused the injury, the plaintiffs might recover regardless of the cpiestion of negligence.</p> <p>3. The escape of oil from a tank on the premises of appellant was not the proximate cause of the appellees’ injury. Milwaukee Co. v. Kellogg, 94 IT. S. 475; 21 Am. & Eng. Enc. Law, 2d ed. p. 486; Hoag v. Railroad Co. 85 Pa. 293; R. R. Co. v. Kerr, 12 P. E. Smith, 353; Ryan v. R. R. Co. 35 N. Y. 210.</p> <p>2. Appellant is not liable as an insurer for the accidental escape of asphalt oil from its premises. The trial court not only refused to instruct the jury as prayed by the defendant, that if the escape of asphalt oil from the defendant’s premises was due to accidental or unknown causes, and was not due to any negligence or carelessness on thejpart of the defendant, then their verdict should be for the defendant, but the court of its ■own motion charged the jury that it made no difference whether tlie escape of oil was accidental or due to negligence or carelessness on the part of the defendant; the mere fact of escape, no matter what the cause, rendered the defendant liable. This was error. This statement of the law is substantially that of the leading English case on the point, Fletcher v. Rylands, L. R. 3 H. L. 330, where, it is believed, was first stated the doctrine of the liability of the landowner as an insurer against damage caused by the escape of a substance collected on his land. The rule of Fletcher v. Rylands and the court’s charge are at variance with fixed principles of the law of torts. Nitroglycerine Case, 15 Wall. 537; Shearm. & Redf. Neg. 5th ed. sec. 16; Richmond & D. Co. v. Elliott, 149 IT. S. 266; 21 Am. & Eng. Enc. Law, 2d ed. 699; Thomp. Neg. sec. 696; Losee v. Buchanan, 51 N. Y. 476; Brown v. Collins, 53 N. II. 446; Marshall v. Welwood, 38 N. J. L. 339; Penn Coal Co. v. Sanderson, 113 Pa. 126; Cumberland Phone Co. v. United Go. 42 Fed. 273; Vieth v. Hope Salt Co. 57 L.R.A. 410; Murphy v. Gillum, 73 Mo. App. 487; Huff v. Austin, 46 Ohio, 386; Cosuliclc v. S. O. Co. 122 N. Y. 118; Hverett v. Hydraulic Co. 23 Oal. 225; Texas Co. v. Barrett, 166 IT. S. 617; Hummell v. Seventh St. Co. 20 Or. 401; Davis v. Charleston (S. 0.) 51 S. E. 552; Young v. Bransford, 12 Lea, 232; Walker v. EL E. Co. 71 Iowa, 658; Boclcwood v. WEscm, 11 Cush. 221; 8 Harvard Law Rev. 224; Corle v. Blossom, 162 Mass. 330.</p>

Hearing on an appeal by the Commissioners of the District of Columbia from an order of the Supreme Court of the District of Columbia quashing a tax assessment in a certiorari proceeding. .

Hear,tng on. an appeal from a decree by the Supreme Court of the District of Columbia overruling exceptions to a report of the auditor, and directing the distribution of a fund in the hands of a receiver. The Court in the opinion stated the facts as follows: This is an appeal from a decree directing distribution of a fund in the hands of a receiver. The necessary facts involved are these : Samuel T. Cowardin, James F. Bradley, Sydney P. Olay, and!

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action against a bank to recover damages for tbe alleged wrongful dishonor of plaintiff’s checks. The facts are stated in the opinion. 1. The court erred in overruling the demurrer to the first count of plaintiff’s declaration.

Hearing on an appeal by tbe defendant from a judgment of the Supreme Court of the District-of Columbia, on verdict, in an action1 against an insuránce broker to recover damages for his alleged negligence. The facts are stated in the opinion.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover damages resulting from the maintenance of an alleged nuisance.