Volume 30 — Appeals, District of Columbia

Hearing on an appeal by the defendant from a judgment of conviction of the Supreme Court of the District of Columbia in the trial of an indictment for an alleged conspiracy to defraud the United States.

<p>Hearing on an appeal by the caveators from an order of the Supreme Court of the District of Columbia holding a probate' court, admitting a will to probate after the trial by jury of issues to test its validity.</p> <p>The facts are stated in the opinion.</p>

<p>Hearing on. an appeal by the relator in a mandamus proceeding from a decree of the Supreme Court of the District of Columbia discharging a rule to show cause and dismissing the petition for the writ.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is a petition for a writ of mandamus to compel Leslie M. Shaw, as Secretary of the Treasury, to issue a draft in favor of the petitioner for the sum of $181,358.95 in payment of a claim referred to him by act of Congress approved February 17, 1903. The petition was filed May 2, 1906, and return made thereto by Leslie M. Shaw. After appeal perfected.; Leslie M. Shaw resigned the office of Secretary of the Treasury, and George Bruce Cortelyou, as his successor in office, has been made a party in his stead.</p> <p>Petitioner, Emily E. Parish, is the duly qualified executrix of the will of Joseph W. Parish, who died April 7, 1905.</p> <p>The material facts concerning which there is no substantial disagreement are these: On March 5, 1863, J. W. Parish & Company (to whose right Joseph W. Parish succeeded) contracted with the United States to deliver to them all ice required to be used by their Medical Department during the remainder of that year. Deliveries were required to be made as required at Nashville for $25 per ton; at Cairo and Memphis for $20 per ton; and at St. Louis for $15 per ton. On March 25, 1863, the Department wrote the contractors that the ice contracted for must be delivered without delay as follows: At St. Louis 5,000 tons; at Cairo 5,000 tons; at Memphis 10,-000 tons; and at Nashville 10,000 tons. March 31, 1863, an instruction was sent the contractors, and received by them April 2, 1863, suspending the order until further instructions. At that date 12,768 tons had been delivered and paid for at the contract price. The order of suspension was never recalled. Under the authority of an act of .Congress approved May 31, 1872, Parish brought suit against the United States, in the court of claims, to enforce his- demand under said contract. The court of claims dismissed the suit. 12 Ct. Cl. 620. On appeal that judgment was reversed by the Supreme Court of the United States, and the case remanded, with direction to ascertain the damages sustained by the claimant. 100 U. S. 500, 25 L. ed. 763. The court of claims then rendered a judgment for the claimant for the sum of $10,444.91. 16 Ct. 01. 642. Claimant then petitioned Congress to satisfy as much of his claim as had not been allowed by the court of claims. Responding to a reference by a committee of the House of Representatives, the War Department, through the Surgeon General, reported that the whole of the undelivered ice, through the order of suspension, amounted to 17,232 tons, and that the same had been lost by the contractor. The report also stated that under the evidence before the court of claims, and additional evidence before the Department, Parish was entitled to be reimbursed, in addition to the judgment of the court of claims, in the sum of $58,341.95, for the loss he had sustained because of the nondelivery of the 17,232 tons of ice. After this report, on February 20, 1886, Congress passed an act directing the payment of said sum of $58,341.55 to Parish, in addition to said sum of $10,444.91, “being the balance of money laid out and expended by him in the purchase of 17,232 tons of ice, for the use and at the request of the government of the United States, which were not afterwards called for, but were wholly lost to said Parish.” 24 Stat. at L. 653, chap. 11. Parish again applied to Congress for relief, and on February 17, 1903, the following act was passed:</p> <p>“An Act to Refer the Claim of Joseph W. Parish to the Secretary of the Treasury for Examination and Payment of Any Balance Found Due.</p> <p>“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Secretary of the Treasury is hereby authorized and directed to make full and complete examination into the claim of Joseph W. Parish against the United States for balance alleged to be due him by virtue of a contract made by J. W. Parish & Company with Henry Johnson, a medical storekeeper, acting on behalf of the United States, which contract bears date March 5, 1863, and provides that said J. W. Parish & Company should furnish to the United States for the use of the Medical Department of the Army the whole amount of ice required to be consumed at Memphis and Nashville, Tennessee, St. Louis, Missouri, and Cairo, Illinois, during the remainder of the said year 1863; that the Secretary shall determine and ascertain the full amount which should have been paid said J. W. Parish & Company if the said contract had been carried out in full, without change or default made by either of the parties thereto, under the rule of the measure of damages laid down by the Supreme Court of the United States in the case of the United States against Behan (One hundred and tenth United States Reports, three hundred and thirty-eight), and in accordance with the evidence" in the case collected by the United States court of claims, and, after determining the full amount thus due said J. W. Parish & Company, under the said contract and rule of law aforesaid, to deduct therefrom all payments which have been made to said J. W. Parish & Company, or to said Joseph W. Parish, whether in pursuance of judgments of the court, or direct appropriation by Congress, or otherwise, stating what balance, if any, is due under the rule and evidence prescribed herein, and pay the said balance to said Joseph W. Parish, the present owner of said claim; and sufficient money to pay such balance is hereby appropriated out of any money in the Treasury which has not been otherwise appropriated.</p> <p>“Approved, February 17, 1903 [32 Stat. at L. 1612, chap. 559].”</p> <p>The bill resulting in the act aforesaid was accompanied by an elaborate committee report, which is made an exhibit to the petition. This report gives a history of the Parish claim and the litigation concerning it. The findings of fact by the court of claims are set out and commented on; and it is said that the decision reported in 100 U. S. 500, 25 L. ed. 763, is erroneous, because the court overlooked the ninth finding of the court of claims, regarding Parish’s readiness to deliver the remainder of the 30,000 tons of ice. The report, as a whole, is an argument in favor of Parish’s right to further and complete compensation, and is relied on by the appellant as showing the plain meaning of the act aforesaid, thereafter adopted. In the conclusion of the report, and referring to a former report, it is said:</p> <p>“In that report the committee state that the bill directs the Secretary of the Treasury to make an examination into the claim of said Parish for balance alleged to be due him under a contract with the United States, under the rule of damages prescribed by the Supreme Court of the United States in the case of the United States v. Behan.</p> <p>“The pending bill fixes the rule which was followed by the Supreme Court in a case quite similar as to facts. It is the opinion of your committee that the Secretary of the Treasury is the proper person to investigate this case, as provided for in the bill. The Department is in possession of all necessary data to make full investigation, as it has its own records and the full record of proceedings before the court of claims. This is a safe and orderly way to dispose of the matter at present.</p> <p>“If the United States owes the claimant, this fact will be disclosed, and he will be paid. If it does not owe him, that will also be brought to light, and in either event a final determination be reached.”</p> <p>“Congress having heretofore given only partial justice in this case, there is no question but it is authorized to do complete justice to the claimant, as this bill and the law contemplates.”</p> <p>The petition alleges that the matter was referred to the auditor of the War Department after the passage of the act aforesaid, who stated an account showing the entire contract price, and after deducting the various payments made to Parish, and the sum of $137,385.12 as “amount saved on now delivered ice,” showed a balance due Parish of $181,358.95, of which he was notified. And a report of the “law board” of the Department is alleged, showing the approval of this account as being in accord with the intention of Congress as expressed in the committee report and the act aforesaid. The petition alleges that this report of balance was authoritative, and all that remained for the respondent “was a purely ministerial act in obedience to and in execution of the clearly expressed will of the lawmaking power, so that the said act of February 17, 1903, from and after the report or statement of account of said auditor for the War Department, became and was mandatory upon the defendant.” The prayer is for a writ of mandamus requiring the respondent, as Secretary of the Treasury, to issue a draft to the petitioner for the said sum of $181,358.95, as found by the auditor. Some extracts from the evidence before the court of claims, and the Surgeon General thereafter, are given in the petition, but there is no transcript of the entire evidence in either the petition or the return thereto.</p> <p>The. return of the respondent admits the general facts before recited, but denies the conclusions therefrom. The material allegations of the return are the following:</p> <p>' “15. Answering the fifteenth paragraph, the defendant says that the said Parish was not able to deliver said iee as in said paragraph alleged, and that the defendant, after a full consideration of all the evidence in the court of claims on this question, has decided that the said Parish was not able to deliver the said ice as in this paragraph alleged.”</p> <p>“16. Defendant denies that the evidence collected in the court of claims showed the profits which would be due under the contract, or showed the cost of transporting the ice which was not delivered under said contract.”</p> <p>“17. Defendant denies that tire evidence in the court of claims shows that the transportation of ice at Lake Pepin and elsewhere was practicable. Defendant further says that, after a thorough consideration of all the evidence in the court of claims on this question, he decided that said transportation of ice from Lake Pepin was impracticable.</p> <p>“18. Defendant says, as will be hereafter more fully set forth, that defendant has determined and stated the full amount due said Parish in accordance with the evidence collected in the case in the court of claims, and under the rule for the measure of damages in the case of United States v. Behan. Defendant further admits that, as will be hereafter more fully set forth, defendant referred the case to the auditor for the War Department for the latter’s examination and advice thereon, and that the said auditor examined and stated the said account in the terms set forth in said paragraph. Defendant further says that on the 26th day of January, 1904, the said auditor revised his said statement, and found that nothing was due the said Parish on said claim.</p> <p>“19. Defendant admits the quotations in said paragraph are taken from a report made to said auditor for the War Department by a clerk in his office under the title of “Law Board,” which report was made by said clerk solely for the advice and assistance of said auditor in making his report to defendant.”</p> <p>“22. Defendant denies that every prerequisite for the payment of any money to Parish has been complied with.</p> <p>“Defendant further says that on the 31st day of May, 1904,. he decided that under the said act of Congress of February 17, 1903, there was no balance due to the said Parish, and therefore declined to pay any money to said Parish.</p> <p>“23. Further answering said rule to show cause and said petition, this defendant says:</p> <p>“That after the passage of the said act of Congress of February 11, 1903, and at the request of said Parish, defendant, as Secretary of the Treasury, took up for consideration the said claim of said Parish; that thereupon defendant requested his' subordinate, the auditor for the War Department, to examine and settle the said account, and to report to defendant his opinion and advice thereon; .that the said auditor examined the said account, and on the 11th day of August, 1903, stated the same as set forth in paragraph 18 of the petition, and on the same day transmitted his certificate of statement to defendant for his action; that on the 12th day of August, 1903, defendant referred said account to his subordinate, the Comptroller of the Treasury, for re-examination, and for his opinion and advice thereon; and that said Comptroller re-examined the said claim, and on the 21st day of January, 1904, advised defendant that in his opinion there was nothing due to said Parish under said act of February 11, 1903, and revised the said account; and that on the 26th day of January, 1904, pursuant to said revision of said Comptroller, said Auditor canceled the certificate theretofore made by him, and certified that there was nothing due said Parish on account of said claim; that defendant also referred the matter to the Solicitor of the Treasury, and requested the latter’s opinion and advice thereon; and on the 12th day of January, 1904, said Solicitor of the Treasury advised defendant that in his opinion there was nothing due to said Parish under said act of Congress on account of said claim. That thereafter, and pursuant to the authority and direction of said act of February 11, 1903, defendant, acting in his official capacity as Secretary of the Treasury, made a full and complete examination into the claim of Joseph W. Parish against the United States for balance alleged to be due him under the contract described in said act of Congress, and into the evidence in the case collected in the United States court of claims, and, after and upon such full and complete examination, and upon full and deliberate consideration thereof, and of the said opinions and advice so theretofore at his request given to him by his said subordinates and the said Solicitor of the Treasury as hereinbefore set forth, and in the exercise of the judgment and discretion conferred upon him by said act of Congress, did, on the 31st day of May, 1904, determine and ascertain the full amount which should have been paid said Parish if the said contract had been carried out in full, without change or default made by either of the parties thereto, under the rule of the measure of damages laid down by the Supreme Court in the said case of United States against Behan, and in accordance with the evidence in the case collected by the court of claims, and did deduct therefrom all payments which have been made to said Parish, and did determine and ascertain and state that, under the said rule and evidence, no balance is due to said Parish on account of said claim; a copy of said determination of this defendant is hereto attached marked ‘Exhibit A,’ and made a part hereof.”</p> <p>As an exhibit to the return is attached the decision of the respondent made May 31, 1904, denying the claim. This decision is embraced in five printed pages of the record, and contains a review of the entire case, and the reasons of the respondent for his conclusion.</p> <p>The petitioner demurred to the return. On February 13, 1907, the order of the court recites: “This cause came on to be heard upon the petition, the rule to show cause issued thereon, the answer of respondent, exhibits, and affidavits, and the demurrer to said answer,” and thereupon the denial of the prayer, the discharge of the rule to show cause, and the dismissal of the petition with costs. From this order the petitioner has appealed.</p>

Hearing on an appeal by tbe United States from a judgment •of tbe Supreme Court of tbe District of Columbia discharging the accused in a homicide case, after a verdict of acquittal. Tbe facts are stated in tbe opinion. 1. An appeal lies by tbe United States when tbe appeal is based upon tbe express authority of see. 935, D. C. Code. Tbe writ of error, by tbe Government would not exist, except where •especially authorized, in such cases it is wholly proper.

Hearing on an appeal by the defendants from a judgment of conviction by the Supreme Court of the District of Columbia, on a verdict of guilty, in a joint prosecution of the defendants for having committed an abortion.

<p>Hearing on an appeal by tbe plaintiff from an order of tbe Supreme Court of tbe District of Columbia granting a motion by tbe defendant in an action -at law to vacate an alias summons and discontinuing tbe cause.</p> <p>Tbe Court in tbe opinion stated tbe facts as follows:</p> <p>Tbe appellant, Ferdinand Hopp, filed a declaration in tbe supreme court of tbe District on April 3, 1906, against Tbomas H. Pickford, claiming damages for an unlawful arrest and malicious prosecution upon a charge of conspiracy. Tbe summons issued on tbe same day was returned by tbe marshal on April 30, 1906, “Not served because marshal’s fee not paid.” Alias summons was issued October 27, 1907, and returned on the 29th as regularly served. Pickford appeared specially, and moved tbe court to vacate tbe alias summons and discontinue tbe cause on tbe following grounds: (1.) That said summons was improvidently issued; (2.) because of tbe lack of diligence in prosecuting tbe action, which thereby worked its discontinuance. It appeared by affidavit of Pickford that be was a resident of tbe District, and was therein from April 3, 1906, continuously, to July 12. That be was absent on bis annual vacation from July 12 to August 28, and was thereafter in tbe District until served with summons. Plaintiff’s affidavit was to tbe effect that be bad deposited with bis then attorney tbe amount of costs requested, and assumed that bis case was being regularly prosecuted. That, when informed by bis present attorneys, whom be bad retained in another case, and requested to inquire into this, that summons bad not been served on account of failure to pay the marshal’s fee, he requested them to issue the alias writ, and advanced the fee for its service. That it has always been his purpose to bring the ease to trial with convenient speed. The motion was sustained, and the ease discontinued.</p>

<p>Appeals; Injunctions; Moot Questions; Officers.</p> <p>1. The mere prosecution of an appeal cannot operate as an injunction where none has been granted.</p> <p>2. A judicial tribunal is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions, or to declare principles of law which cannot affect the matter in issue before it. (Following United States ex rel. Cannon v. Georgetown College, 28 App. D. C. 91.)</p> <p>3. Where, pending an appeal from a decree dismissing a bill in equity by a school teacher against the members of the board of education, to enjoin them from claiming to be members of the board, and from undertaking to try the complainant on charges preferred against him, the defendants proceeded to try the complainant, found him guilty and removed him from office, this court will dismiss the appeal as involving merely a moot question. (Following United States ex rel. Gannon v. Georgetown College, supra.)</p> <p>4. The official acts of persons whose office exists under the law, and who are clothed with the insignia of the office, and exercise its powers and functions, are recognized as valid on grounds of public policy, and for the protection of those having official business to transact. (Following Crutchfield v. Hewett, 2 App. D. 0. 385.)</p>

<p>Patents; Evidence; Conception; Constructive Reduction to Practicet Burden of Proof; Res Judicata; Patent as Evidence.</p> <p>1. Tbe filing date of a party to an interference who takes no testimony stands for his date of conception and constructive reduction to practice.</p> <p>2. The burden of proving his case beyond a reasonable doubt is on a party to an interference whose application was not filed until after the grant of a patent to his adversary.</p> <p>3. The doctrine of res judicata does not apply so as to estop an applicant in interference from claiming against a previously granted patent of his adversary, where the record of the patent shows that the patentee had no right to make in his application the claims which are the issue of the interference.</p> <p>4. In an interference between an applicant, and a patentee whose original application did not disclose the invention of the issue, and. was not a proper foundation for amendments by which it was made to include such invention, the patent is not to be accepted as proof of the invention at the date of the application upon which it was granted, or evidence that the invention was made by the patentee at any time; and when the patentee relies upon his filing date, and takes no testimony, the applicant is entitled to an award of priority, if his application fully discloses the invention. (Citing MeKnight v. Pohle, 22 App. D. 0. 219.)</p>

Hearing on an appeal by tbe applicant from a decision of tbe Commissioner of Patents sustaining an opposition to an application for registration of a trademark, and denying registration. Tbe facts are stated in tbe opinion.

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

<p>Appeals; Patents; Intebeebenoe.</p> <p>1. Whether the application of one of the parties to an interference discloses the subject-matter of the interference, and therefore whether the interference is properly declared, is a question to be ordinarily determined by the Patent Office (following Ostergren v. Tripler, 17 App. D. C. 558, and Herman v. Pullman, 23 App. D. C. 264); but in extreme cases, where palpable error has been committed, the decision of the Commissioner holding identity of invention between the parties to the interference may be reversed (following Podlesak v. Mclnnerney, 26 App. D. C. 399).</p> <p>2. In an interference involving an improvement in carbureters for internal combustion engines, where the junior party took no testimony, and the question was whether the senior party, who had amended his specifications and filed new drawings after the filing date of his adversary, disclosed the invention of the issue by his original application, it was held, on a review of the record and proceedings, that the finding of the Patent Office in favor of the senior party was conclusive upon this court.</p>

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

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

<p>Hearing on an appeal by the defendants from a judgment on verdict of tbe Supreme Court of the District of Columbia in. two actions of ejectment consolidated for trial.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from a judgment rendered in two actions-of ejectment that were consolidated for trial in the supreme-court of the District of Columbia.</p> <p>The first action was begun on June 22, 1899, by Mary Ann McGee and a number of others against William M. Cherry and Pliny T. Moran, partners under the name and style of Cherry & Moran Company, to recover possession of an undivided two-thirds interest in the west half of lot No. 2 in square 408 in the city of Washington, together with the sum of $25,000 mesne profits, on account of use and occupation of the said premises. Mary J. Welch and others, claiming to be the real owners of the premises as lessors of Cherry & Moran Company,, were admitted as defendants on their motion June 25, 1900.</p> <p>The second action was begun by Mary A. Lynch, sole plaintiff, on December 16, 1899, to recover of the said Cherry & Moran Company an undivided one-third interest in the same premises, together with mesne profits in the sum of $25,000. Mary J. Welch and others appeared and were admitted as defendants for the same reasons as in the first action.</p> <p>On April 25, 1901, an order was entered in each cause placing it upon the stet calendar, on the ground stated that it had been upon the trial calendar for three terms, and was not ready for trial when reached on the call of the calender on that day. See O. L. Rule 39, Sup. Ot. D. 0. On March 8, 1902, plaintiffs in each case (represented by the same counsel) gave notice of intention to press for trial during the succeeding term (April) and to apply to the court to designate the time for trial. On April 1, 1902, the court ordered the cases set for trial at that term, to follow cause No. 318 on the trial calendar. On October 10, 1902, the following order was entered by the cleric in each: “This cause having remained upon the stet calendar for more than three terms, pursuant to rule of court, said suit is hereby dismissed at the costs of the plaintiffs.” This order was vacated by the court on October 20, 1902, on the ground that it had been inadvertently entered. On January 12, 1904, defendants moved the court to dismiss the cases for failure to prosecute the same under the provisions of rule 39. This motion was overruled March 25, 1904, and the cases ordered to the foot of the trial calendar for trial at the same term. On November 18, 1904, the cases were set for trial on December 12, 1904. The next action taken was on August 15, 1905, when defendants again moved to dismiss under rule 39. On same day plaintiffs gave notice of intention to press for trial at the next term. January 26, 1906, the court denied the motion to dismiss, and ordered the cases to the foot of the calendar for trial at that term. April 26, 1906, plaintiffs in the first case suggested the death of certain plaintiffs, testate and intestate, and the marriage of others, asking for the substitution of heirs at law, devisees, etc., as parties. On the same day the death of Mary A. Lynch, sole plaintiff in the second case, was suggested; and it was alleged that she died intestate, leaving a surviving husband, William T. lynch, and eight children, who were named; but the request was to admit only the husband as plaintiff, instead of his deceased wife; and this was granted. Defendants moved to continue on account of these suggestions of death and so forth, but were overruled. The court then ordered the cases consolidated, and the long postponed trial was begun, after another motion by defendants to dismiss had been overruled, with leave to the substituted plaintiff in the second case to file an amended declaration. This amended declaration was by William T. Lynch, as sole plaintiff. He alleged the necessary facts tending to show that upon the death of his wife, Mary A. Lynch, he became seized and possessed of the premises as tenant by the curtesy. He claimed thereby to recover possession and mesne profits in the sum of $45,000, for use and occupation since May 23, 1891. Defendants objected to this amended declaration being filed, because no heir, devisee, or personal representative of the said Mary A. Lynch was made a party plaintiff. On the same day the defendants also moved the court for a postponement, or continuance, and to dissolve the consolidation of the causes. All objections and the motion were overruled. Defendants then demurred to the amended declaration of William T. Lynch, substituted plaintiff, on the ground that he had no right to be substituted for, or to continue the action begun by, Mary A. Lynch. This demurrer was overruled.</p> <p>On May 4, 1906, the jury returned a verdict for all of the plaintiffs, and awarding damages for use and occupation. The finding in favor of William T. Lynch was an estate for life in the one-third interest sued for, and $3,600 damages. The interests recovered by the plaintiffs in the first ease (amounting in the aggregate to two thirds) were designated, and the damages apportioned among them amounted to $21,100. Motions for new trial and in arrest of judgment having been overruled, a general judgment was entered in accordance with the findings of the jury.</p> <p>The evidence showed that the title to the land in controversy was in one Nicholas Whelan on August 25, 1810. Nicholas Whelan had one child, Catherine Ann, who was born in 1812. He died intestate in 1815, on a farm near Colesville, in Montgomery county, Maryland. Catherine Ann Whelan lived with her mother on the said farm, the latter dying in 1836, and her mother’s brother was her guardian. She never married, and in 1867 was declared insane and a committee appointed of her person and estate. She died in 1891. The defendants, as heirs of the mother of Catherine Ann, entered into possession of the premises in controversy, and remained in undisputed possession until the commencement of this litigation, in 1899. The plaintiffs are the heirs at law of one John Patrick Whelan, who, they attempted to show, was the brother of the said Nicholas Whelan. Catherine Ann Whelan having died intestate, without having a brother or sister or descendants of a brother or sister, or a grandfather on the father’s part, the title to the land in controversy, if cast by descent, passed, by the terms of the statute, to the descendants of the grandfather on the father’s part, in equal degree equally.</p> <p>Plaintiffs introduced evidence tending to show that the plaintiffs in the first suit were all descendants of John Patrick Whelan, and that Mary A. Lynch, original plaintiff in the second suit, was a granddaughter of said John Patrick Whelan; that she died leaving eight children, and a husband, William T. Lynch, in whose name alone, as tenant by the curtesy, said second suit is now maintained.</p> <p>To prove the kinship of John Patrick Whelan, and Nicholas Whelan, the father of Catherine Ann, they relied chiefly on the depositions of three witnesses, taken de bene esse. These were Mary A. McGee, Mary A. Lynch, and Airy Ann Dover.</p> <p>Such of this evidence as tended to show who were the descendants of John Patrick Whelan is omitted as unnecessary. Mary Ann McGee testified that she was a granddaughter of John Patrick Whelan, and was bom in Rockville, Maryland, December 12, 1823. She knew John Patrick AVhelan, who died in 1830. He had a brother, Nicholas AVhelan, and a sister, Sarah Sweeny, who lived with John Patrick and died in 1828, leaving no descendants. Nicholas died in 1815. She never heard her grandfather say that Nicholas was his brother, but had heard her grandmother and Sarah Sweeny say that they were. She derived her knowledge that they were brothers from the statements of them and her uncles and aunts. That witness was abont twelve years old when she last saw Catherine Ann Whelan, who was eight or nine years older’. That witness’s Uncle Tom wanted to marry Catherine Ann, and there was a meeting at witness’s father’s house. They wanted to marry, but the priest would not marry them because they were first cousins. All parties were Catholics. Upon cross-examination she was unable to describe Catherine Ann. She did not know the name of John Patrick Whelan’s father; had never heard any of the family speak of it. She was nearly five years old when her grandmother and grandaunt Sarah Sweeny died, and remembered hearing them say that John Patrick and Nicholas were brothers. She further testified that Mrs. Welch, one of the defendants, came to see her in 1891, and inquired how near she was related to Catherine Ann. She told her that she was her second counsin, as their grandfathers were brothers. That Mrs. Welch said she knew they were kin, but did not know it was so near; and said, further, that she was not fighting for the city property because she knew that belonged to the Whelans, but that she was after the farm in Maryland. Several others of the plaintiffs testified to this interview and the statements attributed to Mrs. Welch. Witness further testified that she had heard from her family that John Patrick and Nicholas were stone masons, and had worked together in the capitol and Tiber creek work. That Nicholas clerked for John Patrick; he could read and write, but John Patrick could not, though he was a contractor. That there was some disagreement between John Patrick and Nicholas, in business, about some papers. She did not know if Nicholas owed him any money, but that he took all of his papers. She had heard her Aunt Margaret speak of it. John Patrick left no estate.</p> <p>Mary Ann Lynch testified that she was born March 22, 1841, in Montgomery county, Maryland, and was a granddaughter of John Patrick Whelan. She had heard her Aunt Margaret say that John Patrick and Nicholas were brothers, and that Catherine Ann’s property would fall to them after her death. She also heard her mother and her uncle say that they were brothers. She had heard them say that John Patrick was a stone mason and had been a contractor on the Tiber creek canal, and that Nicholas worked with him and kept the books. That Nicholas did not do right with the money, and that is why they expected it back at Catherine Ann’s death. Witness never saw Catherine Ann, and had no relations with her family.</p> <p>Defendants objected specially to the hearsay evidence as to the occupation of Nicholas Whalen and of his working with John Patrick, and the statements that he had gotten his money and papers.</p> <p>Airy Ann Dover, testifying by deposition in May, 1903, said she was then eighty-eight years old. She was bom a slave. Her father was Bill Scotland, a slave of John Patrick Whelan. She was sold, when between nine and ten years of age, to Kengla. That she stopped at John Patrick Whelan’s on her way to Kengla’s, and was there three times afterwards. She remembered him and his children, as she had been there often before her sale. She did not know Nicholas Whelan. She remembered seeing Catherine Ann Whelan at John Patrick’s house, and had played with her a whole day. She thought she was one of the family until she heard her say “Cousin Peggy” and “Cousin Tom.” Heard the children call each other cousin. Never heard John Patrick say anything about being related. He spoke Irish only. Catherine Ann was then about twelve or thirteen years old. She said that her father told her that “Massa Nick and Ol’ Massa” stuck the first pick in the canal to get out stone for building the pillars of the capitol. The court overruled objections to this last statement, on the ground that the objection was not noted in the deposition, and should have been made within ten days after the same was filed.</p> <p>Martha Whelan testified that she was fifty-nine years of age, and had heard her Aunt Peggy say that Nicholas and John Patrick had had business difficulties and became estranged, and that Nicholas and his wife were estranged for years. Objections to this were made and overruled.</p> <p>Upon the conclusion of the plaintiff’s evidence, defendants moved the court to direct a verdict on the ground that no sufficient testimony had been introduced upon which a verdict for plaintiffs could be founded, and because plaintiffs had failed to prove that Nicholas Whelan was the brother of John Patrick. This was overruled.</p> <p>Defendants offered in evidence a certified copy of a deed executed March 2, 1814, by Nicholas Whelan, conveying the premises and certain personal property to William Brent and John Davidson, reciting his desire to make over all of said property and convey and confirm the same to his “daughter Kitty Ann Whelan and the heirs of her body lawfully begotten forever, subject to the following stipulations and proviso, that is to say, that if and in case the said Nicholas Whelan shall at any future time or times hereafter wish and desire to sell, dispose of, or convey and confirm in fee simple and absolutely or otherwise the aforesaid property or any part or parcel thereof that then in such event it shall be lawful and he the said Nicholas Whelan shall — full power and absolute authority so to do and act and the said property or any part or parcel thereof to sell and convey and assure by deed or deeds of bargain and sale or otherwise as fully and effectually to all intents and purposes as if this present instrument of writing had never been made and executed, anything herein contained to the contrary notwithstanding.” The grant was then in trust for the sole interest and so forth of said Kitty Ann Whelan, to her use, benefit, etc., and the heirs of her body lawfully begotten forever, subject to the conditions and proviso before recited. There were no attesting witnesses, but the instrument was acknowledged before one of the judges of the circuit court of the District of Columbia and duly recorded. This was objected to as irrelevant and immaterial, and was excluded, with exception reserved.</p> <p>Defendants next offered to show by Mary J. Welch the pedigree of Catherine Ann Whelan on the maternal side, and stated that it was intended to show by further testimony that Catherine Ann never had any relatives by the name of Whelan, and, further, that Nicholas Whelan was a nephew of John Patrick Whelan, and that Catherine Ann acquired the property by purchase, and not by descent. The court sustained the plaintiffs’ objections to this evidence. This witness also denied the statements made by plaintiffs’ witnesses as to her declarations to Mrs. Welch, one of the plaintiffs.</p> <p>Defendants next offered in evidence a certified copy of the will, and probate thereof in Maryland, of Catherine Ann Whelan, purporting to have been made September 28, 1844, devising and bequeathing her entire estate to Thomas Connolly, who died before the testator. Plaintiffs objected, and defendants stated the purpose was to show by subsequent testimony that a caveat was filed to the probate of said will in Maryland, that there was long litigation, and that none of the plaintiffs or their ancestors came forward to assert their rights. The court sustained the objection on the ground that neither plaintiffs nor their ancestors were made parties to said litigation, [nor did it appear] that they knew of the same.</p> <p>Defendants then offered the proceedings in Maryland declaring Catherine Ann a lunatic and appointing a committee of her person and estate, in 1868; and proposed to show that none of the plaintiffs or their ancestors ever came forward to assert their rights therein; and also that witness never heard of any claim by the Whelans of relationship to said Catherine Ann. This was all excluded upon objection of plaintiffs to it as immaterial and irrelevant. Witness was also asked when she first heard of claims by the Whelans to any interest in the premises, but this was excluded on the same grounds. Defendants then offered copies of the proceedings of the probate court of Maryland relative to the administration of the estate of Nicholas Whelan, showing renunciation of the right to administer by his widow, and the appointment of Michael Connolly as administrator in her stead; the ground of relevancy being stated that the Whelans, if next of kin, would have the right to claim the appointment, and that they made no such claim. The court excluded this also as irrelevant.</p> <p>Edward P. Welch, husband of one of the defendants, was then introduced, and testified that Major England, a lawyer formerly living in Maryland, had been their counsel in a case in 1867. He produced the following paper which he testified was in the handwriting of said England:</p> <p>Margaret Whelan’s Statement.</p> <p>Mary A. McGee wife of Bernard McGee & John Whelan children of my brother Patrick deceased. (Washington)</p> <p>Nicholas & William Whelan & Sarah Holley wife of Wm. Holley (Poolesville) & (Dufief’s Mill Montgomery County) children of my brother Nicholas dec’d and John his son dec’d left children Mary, John & Martha, Francis and Charles and Sarah Poison (Tennessee).</p> <p>My father John P. Whelan was' brother to Kitty A. Whalen grandfather Patrick W. Her father was Nicholas W.</p> <p>My sister Mary Whelan deceased married John Tarman — she left children, Mary Lynch wife of Wm. S. Lynch — Joseph Tar-man (who lives with a man by name of Douglass in D. 0.)</p> <p>I have no brother or sister living.</p> <p>Plaintiffs objected to the memorandum as hearsay, and it was excluded.</p> <p>Certain parts of the charge to the jury were excepted to, but it is unnecessary to state them. Among other directions the jury were charged, in case they should find for the plaintiffs in respect of the title, to divide the damages among them in their proper proportion, and in so doing to limit the claim of William T. Lynch to the rental value of the premises from and after May 9, 1903, the date of the death of his wife, Mary A.</p> <p>The jury reported a general verdict for the plaintiffs without apportionment; whereupon the court, agreeing with a division, as calculated by the plaintiffs, directed the verdict to be amended and returned in accordance therewith. It is claimed that the verdict and judgment omitted from their recitals the names of several persons shown by the evidence to be heirs at law of certain deceased plaintiffs; and that, in consequence, recovery to which they were entitled accrued to the benefit of the other plaintiffs.</p> <p>Defendants excepted to these several proceedings, and moved to arrest the judgment on several grounds, as follows: That William T. Lynch was not a proper party to be substituted for the plaintiff Mary A, Lynch; that the verdict was rendered in one cause only, instead of separately in both; that the said causes had been improperly consolidated. The motion was overruled.</p> <p>The Lynch Case went to trial upon the amended declaration of the substituted plaintiff, over the objection only that that declaration should not have been received because of the nonjoinder or nonappearance of an heir, etc., of the deceased original plaintiff. There was no suggestion that the original action should be abated; and the motion made ore tenus after the trial had been entered upon, that the case be dismissed and the plaintiff nonsuited, was both meaningless and too late, seeing that the order of substitution had already been made without objection, and the substituted plaintiff given leave to file his amended decláration. ’ And, after the filing of the amended declaration the appellants first demurred and afterwards pleaded thereto, and went to trial thereon.</p> <p>The situation then presents in this connection, as the only question for consideration, not whether the original action should have abated and the surviving husband driven to his action de novo, but whether the surviving husband had the right to maintain an action in his own right as tenant by the curtesy; and that he had is beyond all doubt, as also is beyond all doubt the utter inability of the heirs at law of the original plaintiff to maintain any action during the lifetime of the surviving husband.</p> <p>The action of ejectment is a possessory action, and the plaintiff, to entitle himself to recover, must have the present right of possession; and whatever takes away this right of possession will deprive him of the remedy by ejectment. Cincinnati v. White, 6 Pet. 431, 441; Lansburgh v. I). C. 8 App. D. C. 10. The holder of an estate by the curtesy initiate has the right of possession during his life, and he may commence suit and recover possession in the same manner that other tenants for life recover possession of their estates. Jacobs v. Bice, 33 111. 370; Wilson v. Arentz, 70 N. C. 670. A husband having an estate by the curtesy, the wife’s grantee of her remainder cannot maintain ejectment during the lifetime of the husband, but after his death may. Shortall v. Hinclcley, 31 111. 219. When one holds land as tenant by the curtesy, those deriving title from his deceased wife cannot sue during his life. Beaume v. Chambers, 22 Mo. 36, 52; Miller v. Bledsoe, 51 Mo. 96; Bathbone v. Hamilton, 4 App. D. 0. 475; Frey v. Allen, 9 App. D. C. 400. A tenant by the curtesy of an undivided half interest in land is a proper party plaintiff in an action of ejectment to recover possession thereof. Moore v. Ivers, 83 Mo. 29. In all cases of substitution, the question is whether the party substituted is the one who has succeeded to the right of the original plaintiff which was the object of the suit, — in this case, possession. Shoemaher v. Huffnagle, 4 Watts & S. 436, 444. And even where a substitution has been erroneously made, it will not be ground for reversal if not prejudicial. Thus, if the personal representatives of a plaintiff in ejectment, who dies pending the suit, and not his heirs, are the proper persons to succeed him in that suit, yet, after the heirs have been made parties by order of the court, so long .as this order is not reversed or vacated, the heirs may recover if the personal representatives could, had they been made parties. Williams v. Savannah, etc., B. Co., 94 Ga. 540. And a verdict and judgment in an ejectment suit in favor of the plaintiff’s administrator, who was admitted to prosecute the case, will be amended on the appeal, the defendant not being prejudiced. Coolc v. Bertram, 86 Mich. 356.</p>

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

Hearing on an appeal by one of several defendants from a decree of the Supreme Court of the District of Columbia in a suit in equity for the dissolution of an alleged partnership and the sale of the partnership real estate, granting the relief prayed for. The facts are stated in the opinion.

Hearing on an appeal and cross appeal from a decree of the Supreme Court of the District of Columbia, sitting as an equity court, enjoining the application of a certain fund, and refusing to enjoin the application of another fund to a contract for the education of Indians. The facts are stated in the opinion.

Hearing on an appeal by the Secretary of the Interior from an order of the Supreme Court of the District of Columbia, sustaining a demurrer to the answer to the petition for a writ of mandamus, compelling the delivery of a patent of land.

Hearing on an appeal by the Secretary of the Interior from an order of the Supreme Court of the District of Columbia granting the writ of mandamus to compel him to restore the name of the relator to the approved.rolls of the members of the Chickasaw Nation. 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.

Hearing on an appeal by the Secretary of the Interior from an order of the Supreme Court of the District of Columbia granting the writ of mandamus to compel him to restore the name of the relator to the approved rolls of the Cherokee Nation.

Hearing on an appeal by tbe Secretary of the Interior from an order of the Supreme Court of the District of Columbia granting the writ of mandamus to compel him to restore the-name of the relator to the approved rolls of the Cherokee Nation.

Hearing on an appeal from a decree of the Supreme Court of the District of Columbia discharging a writ of habeas corpus. The facts are stated in the opinion written by Mr. Justice McComas', which follows.

<p>Patents; Interference; Reduction to Practice; Diligence; Principal. and Agent.</p> <p>1. Where the application of one of the parties to an interference is a. division of an earlier application filed before the filing date of his adversary, the burden of overcoming this earlier date is on the latter.</p> <p>2. The mere making of a model of a device will not amount to a reduction to practice of the invention embodied in it, where the model represents a device intended to be used as a part of a complicated machine, and the practical usefulness of which depends upon a test in that machine. (Following Hammond v. Bosch, 24 App. D. C. 469.)</p> <p>3. Attempts by an inventor to sell his invention relating to typewriters to a typewriter manufacturing company between the date of conception and the date of the filing of his application, about a year and a half afterwards, do not show such diligence as will entitle him to an award of prority over another who, during that time, conceived the invention, and, three months before the other assigned to the typewriter company, filed his application.</p> <p>4. Where a typewriter manufacturing company, after declining to purchase an invention and returning a model of the device to the invent- or, adapted the invention to one of its typewriters, and constructed a machine embodying it, and then purchased the invention, and procured an assignment of it, the company cannot be said to have been the agent of the inventor in reducing the invention to practice, so as to make such reduction enure to his benefit, in an interference between him and another inventor of the same device. (Following Hunter v. Stiheman, 13 App. D. C. 214, and Robinson v. McCormick, 29 App. D. C. 98, and distinguishing Shuman v. Beall, 27 App. D. 0. 324.)</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>Patents; Interference.</p> <p>1. In an. interference proceeding between an applicant and a patentee, where it appears that the patent was issued through inadvertence in the Patent Office while the application of the other party was pending, the fact of the issuance of the patent does not add to the burden of proof of the applicant.</p> <p>2. Where in an interference proceeding it appeared that the junior applicant, after his original application became abandoned through oversight of his solicitor, filed a new application with the same drawings and specifications, and the same claims, with the exception of one, which was changed to avoid an objection which had been raised in; the Patent Office; and that subsequently, a patent having been inadvertently issued to the senior party while the junior party’s second application was pending, the latter brought about an interference, and for that purpose inserted certain claims of the patent,— it was held that he, the junior party, was not estopped to embody the claims of the senior party’s patent. (Distinguishing Bechman v. Wood, 15 App. D. 0. 484, and following McBerty v. Goolc, 16 App. D. C. 133; Lager v. Browning, 21 App. D. C. 201; Furman v. Dean, 24 App. D. C. 277; and Beeberger v. Dodge, 24 App. D. 0. 476.)</p> <p>3. Wider range of cross-examination of a witness is allowable where he is a party to the proceeding than if he is not.</p> <p>4. Refusal to suppress or exclude the deposition of a party to an interference because he declined, upon the advice of counsel, to answer certain general questions on cross-examination, although the questions-should have been answered, will not be held to be reversible error, where the cross-examining counsel failed to point out the relevancy of the questions by stating what he expected to elicit, and the case is otherwise plainly made out.</p> <p>5. In giving his deposition, a witness who is a party to the proceeding may, under advice of counsel, refuse to answer questions on cross-examination clearly showing an intention to elicit information relating to his business and that of his assignee, not relevant to the questions at issue.</p> <p>6. Where J., the first to conceive an invention, does practically nothing between the date of his conception and the filing of his application, during which time L. conceives the invention and follows it diligently to actual reduction to practice in a satisfactory manner, more than four months before J. shows any activity, J. loses the benefit of his earlier conception through want of diligence in perfecting the invention, and L. is entitled to an award of priority.</p>

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

The Court in the opinion stated the facts as follows: The plaintiff in error, John Collins, has been granted a writ of error to review a judgment of the police court convicting him of putting electric wires in a house without first having obtained a permit therefor.

Hearing on an appeal by the accused from a judgment of conviction of the Supreme Court of the District of Columbia holding a criminal court, upon a verdict of guilty of murder in the first degree. The Court in the opinion stated the facts as follows: By indictment presented November 26, 1906, the appellant,' Joseph Paolucci, was charged with the murder of Elizabeth V. Dodge. His trial resulted in a verdict of guilty of murder in the first degree on March 8, 1907.

<p>Guardian and Ward; Pledge.</p> <p>In this District, a pledge by a guardian of the personal property of his ward, without an order of the court, is void; and a pledgee for value and without notice takes no title as against the ward or a subsequently appointed guardian. (Construing sec. 165, D. C. Code, 31 Stat. at L. 1217, chap. 854, prescribing the course to be followed in the sale of an infant’s estate; sec. 1135, D. C. Code, 31 Stat. at L. 1370, chap. 854, prohibiting the sale of an infant’s estate by the guardian without an order of the court, and sec. 4, probate rule 21 of the lower court, providing that a guardian shall not dispose of or encumber the ward’s estate without an order of the court.)</p>

<p>Foreign Executors and Administrators; Parties; Courts; Jurisdiction.</p> <p>1. An administrator or executor cannot sue or be sued in his representative character in any other jurisdiction than the one of his appointment, unless there is express statutory provision permitting such suit, by the legislative power of the jurisdiction in which the suit is sought to be maintained. (Following Plumb v. Bateman, 2 App. D. C. 156.)</p> <p>2. The right given to a foreign executor or administrator by sec. 329, D. C. Code, 31 Stat. at L. 1242, chap. 854, to bring suit in this District, does not imply that such an executor or administrator may be sued here.</p> <p>3. In a suit against the Secretary of the Treasury by the trustee in bankruptcy of a deceased plaintiff in a suit in the court of claims, to restrain the payment of a judgment of that court in favor of the administratrix of the decedent, such administratrix is a proper party. (Following Bryan v. Curtis, 26 App. D. C. 95.)</p> <p>4. The courts of this District will not take jurisdiction of a suit brought here by the foreign trustee in bankruptcy of a deceased plaintiff in a suit in the court of claims, against the Secretary of the Treasury and the foreign administratrix of the decedent, and determine whether the trustee or the administratrix is entitled to the proceeds of a judgment by that court, that being a question for the determination of the courts from which the parties derived their authority to act.</p>

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

Hearing on an appeal from a decree of the Supreme Court of the District of Columbia, holding an equity term, dismissing a bill in equity to enjoin the infringement of certain patents and for an accounting. The facts are stated in the opinion of Mr. Justice McComas, which follows.

<p>Hearing on an appeal from a decree of the Supreme Court of the District of Columbia, sitting as an equity court, sustaining a demurrer to a bill for an injunction against the superintendent of Insurance of the District of Columbia.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Contracts; Damages; Penalties; Release; Acceptance; Municipal Corporations.</p> <p>1. Parties to a contract may validly stipulate that a certain sum shall be-the damages which one shall forfeit to the other for failure to perform the conditions of the contract, — especially where the damages sustainable may be uncertain in amount, and not easily ascertainable.</p> <p>2. When an amount agreed upon in a contract as liquidated damages is out of all proportion to any actual damages that could possibly accrue, courts of equity may grant relief; but a court of law has no right to construe a contract contrary to the expressed intention of the parties, in order to make for them a better or more equitable contract.</p> <p>3. • Whether a sum agreed upon to be paid as damages for the failure to perform the conditions of a contract should be treated as liquidated damages or as a penalty is to be drawn from the subject-matter of the-agreement, the meaning and intent of the parties as expressed in the contract, and the terms used to express that intent; and in determining that intent courts will not be bound by the exact language of the contract. The contract may use the terms “forfeit” and “penalty,” and yet be construed to call for liquidated damages; and, likewise, the words “liquidated damages” used in a contract may be held to mean a penalty.</p> <p>4. In order to determine whether the amount stipulated in a contract to be forfeited for nonperformance should be construed as a penalty or liquidated damages, an examination should be made of the whole contract, the sum stipulated, the ease or difficulty of measuring the pecuniary loss that would be sustained by the breach, the subject-matter of the contract, and the proportion that the amount stipulated bears to the entire consideration.</p> <p>5. Where a contract between a ship-building company and a municipality for the construction of a fire boat provides that the company shall forfeit to the municipality $25 for each working day it shall be in default, “which sum of $25 per day is hereby agreed upon as fixed and liquidated damages” that the municipality “will suffer by reason of such default, and not by way of penalty,” the municipality is entitled to deduct from the balance due upon the contract price for the boat, $25 for every day the company is in default in delivering the boat, irrespective of the actual damages sustained, — especially where the company does not claim that the amount named as liquidated damages is out of proportion to the amount of the contract price, and no fraud or mistake or other facts are alleged calling for a reformation of the contract.</p> <p>6. A receipt given by the ehief engineer of the fire department of the District for a fire boat constructed for the District will not operate as a release of the builder of the boat from the obligations of its contract with the District for the construction of the boat, or as an acceptance of the boat by the District, in the absence of anything to show that the chief engineer was authorized to accept the boat for the District, or that his action was subsequently ratified by the municipal authorities,' — especially where the subsequent action of both parties to the contract negatives the idea that the receipt was intended to so operate.</p> <p>7. A municipal order accepting a fire boat constructed for the municipality, upon the express condition that the builder will “complete the work on the pumps and appurtenant machinery and substitute the required monitor nozzles, so as to meet fully the requirements of the specifications,” does not relieve the builder of liability under the contract for the building of the boat, for delay in completing the boat according to contract, where it appears that, before and after such conditional acceptance, efforts were made by the builder, with the assistance of the municipal agents, to put the machinery in proper order, and that that ■was not finally accomplished until nearly four months after the order was made.</p>

The Court in the opinion stated the facts as follows: This cause was brought here on writ of error to the police court of the District of Columbia. An information was filed therein, charging the defendant, Charles Kobinson, with the offense of working on Sunday. The statute under which the prosecution was sought to be maintained was an act of the Maryland legislative assembly of 1723, chap. 16, sec. 10, appearing in Abert’s Compiled Statutes, D. 0., p. 176.

Hearing on an appeal from an order of the Supreme Court of the District of Columbia granting a writ of mandamus to the excise board of the District of Columbia directing the issuance of a hotel barroom license. 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 granting a writ of mandamus to the excise board of the District requiring the issuance of a hotel barroom license.

<p>Trademarks; Abuse oe Discretion.</p> <p>There is no abuse of discretion on the part of the Commissioner of Patents in refusing to register the words “Chancellor Club” as a trademark for cocktails, upon the ground that the words would be confused in the mind of the purchasing public with the prior registered mark “Cluh Cocktails” for the same class of goods.</p>

<p>Patents; Reissues; Claims; Abandonment.</p> <p>1. Claims in an application for reissue are properly disallowed by the Patent Office, when the subject-matter of them is embraced in a subsequent and pending application by the same party, which is in interference, and the purpose of the applicant for reissue is apparently to gain an advantage over his opponent in the interference proceeding.</p> <p>2. Where to give the words of a claim in an application for a reissue tho meaning claimed for them by the applicant will require a strained and unnatural interpretation of the language used, or where such meaning, if given to the words, will refer to a new operation of the patented device, and so cover new matter, the claim is properly rejected.</p> <p>3. Claims of a reissue application which are identical with claims of the</p> <p>original application which were canceled by the applicant in response to official objection to the same are properly disallowed as having been abandoned. (Following Re Denton, 12 App. D. C. 504.)</p>

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

Hearing on an appeal by the respondent, the superintendent of insurance of the District of Columbia, from an order of the Supreme Court of the District of Columbia sustaining a demurrer to a return to a petition for the writ of mandamus to compel him to issue an insurance broker’s license to the relator,, and directing the issuance of the writ.

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

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

<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; Patentability; Anticipation.</p> <p>A process for covering a tennis or other playing ball, consisting of making a crocheted or knitted cover, and inserting the deflated ball through a slit in the cover, and closing the edges of the wrapper by making new meshes of the same material, or inflating the ball after the cover is so closed, is not patentable, having been anticipated. ></p>

<p>Equity Practice; Affidavits; Trademarks; Cancelation of Registered Trademarks.</p> <p>1. Affidavits not referred to in a petition, and filed after the filing of the petition, form no part thereof.</p> <p>2. The right of a party to file in the Patent Office a petition for the cancelation of a registered trademark, under the act of Congress of February 20, 1905, sec. 13 (33 Stat. at L. 724, U. S. Comp. Stat. Supp. 1907, p. 1008), is dependent upon a showing of interest; and his petition must contain a statement of fact on this jurisdictional question, sufficiently full to show that he has been injured by the registry of the mark he seeks to have canceled; and this fact must not be left to conjecture, but must affirmatively appear.</p> <p>3. In equity the proofs must be according to the allegations of the parties in the pleadings; and if the proofs go to matters not within the allegations, the court cannot judicially act upon them as a ground for its decision.</p> <p>4. An averment in a petition for the cancelation of the word “Tobasco,” which had been registered as a trademark, that the petitioner had used the word as a trademark, is not sufficient, for the reason that, unless the word had been used in the same business as that in which it had been used by the petitioner, no injury would have resulted to him and no right to file a petition for the cancelation of the word would have followed; and an additional averment in such a petition, that the registration of the word by the respondent has been “much to the prejudice, damage, and loss of your petitioner,” is also insufficient, when not supported by a statement of the facts.</p>

Hearing on an appeal from a decision of the Commissioner of Patents denying an application for registration of a trademark, opposition having been made thereto. The facts are stated in the opinion.

Hearing on an appeal from a decision of the Commissioner of Patents denying an application for registration of a trademark, opposition having been made thereto.

Hearing on an appeal from a decision of tbe Commissioner of Patents sustaining a notice of opposition to registration of a trademark. The facts are stated in the opinion.

<p>Hearing on an appeal by the defendant from a judgment of conviction of the Supreme Court of the District of Columbia rendered upon a verdict of a jury in a prosecution for procuring a miscarriage.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>The appellant, Edward Leon Thompson, alias Edward Leon, was charged by an indictment in three counts, substantially, with inserting an instrument of description unknown to the grand jury into the womb of one Sadie Volk, a pregnant woman, •on October 11, 1905, with the intent to cause her to give premature birth to the child with which she was then and there pregnant; the use of said instrument not being under the direction of a competent licensed practitioner of medicine, and not being necessary to preserve the life of said woman. The conclusion was that by the said means the said Edward Leon Thompson, alias Edward Leon, did then and there cause and •procure the miscarriage of the said Sadie Volk and the premature birth of the said child, etc.</p> <p>The defendant entered a plea in abatement to the indictment, .setting out the following grounds:</p> <p>“1. That the indictment in the above-entitled case is not •founded upon inquest had by the grand jury at the term ah which said indictment was filed in open court.</p> <p>“2. That the indictment is not predicated upon a formal presentment by the grand jury which returned the same to the court.</p> <p>“3. That upon the face of the record it appears that the proceedings of the grand jury in respect of the indictment are irregular, unlawful, and in violation of the constitutional rights of the defendant; and for these causes said indictment and the prosecution thereunder, it is respectfully submitted, ought to abate.”</p> <p>The United States demurred to this plea, assigning, among other grounds, that its allegations were repugnant to each other, and that they were uncertain and ambiguous, failing to specify the grounds of objection with the requisite certainty and precision. The demurrer was sustained, and the defendant excepted.</p> <p>. The United States produced the said Sadie Volk as a witness, who testified substantially as follows: Being pregnant, she went to the house of the defendant, whom she identified, and was shown into his office. She inquired of defendant, who was alone, if he operated. He said “Yes,” and that he would perform the operation. He then inquired how long she had been pregnant, and her answer was “three months.” He caused her to recline on a sofa in the office, lifted her clothes, and performed an operation on her. She could not see what he did. He operated about ten minutes. She paid him $15, and he told her if the operation did not have effect to return on the third day thereafter. She returned home. On the morning of the third day' she became ill and gave birth to the foetus, which remained in the room. About noon Dr. McKay came to see her, and she was removed to Columbia Hospital. The witness gave the location and number of the house where she saw defendant, and described the office and furniture and a brass sign plate on the door, reading “Dr. Leon.” No additional facts were developed on cross-examination. Dr. McKay was next introduced, and testified that he was called to see Sadie Volk on Sunday, and found her in her room, in bed, covered with clothes and soaked with blood. Found membrane projecting from her vagina which meant that a child had recently been brought forth. He examined into her condition. She told him that her baby was under the bed, and he found it there. She showed symptons of having absorbed some poison, and he had her conveyed to the hospital for treatment. The foetus was seven or eight inches long and without life in it. She was apparently a stout, robust woman, and he saw nothing to indicate the necessity of an operation to produce a miscarriage in order to save her life. The defendant objected to the statements of the patient and to the expression of the foregoing opinion by the witness. Both objections were overruled and exceptions noted. The witness was not ashed to state any declarations of the patient, other than such as indicated her condition at the time, and no statement as to the manner in which the miscarriage had been produced was asked for or given.</p> <p>The defendant examined the witness at length in regard to the declarations of the patient, not only on that occasion, but subsequently. This elicited the statement that she was afraid of death, and told him on the way to the hospital that Dr. Loon gave her medicine on Wednesday night, and told her that within forty-eight hours the child would come. On the succeeding day of the trial defendant moved the court to exclude all of the evidence of the witness because it was “hearsay” only. One of the surgical staff of Columbia Hospital testified that he treated the woman at the hospital. Could not tell whether her miscarriage resulted from violence or natural causes. Knew that the foetus was delivered permaturely. Saw nothing in the formation of the woman that would make ordinary childbirth dangerous to her health. She looked like a healthy woman. Another surgeon who had treated the woman while in the hospital said that she was suffering from an incomplete abortion or miscarriage. The foetus had been expelled and the placenta retained. He removed what remained in the uterus. There was nothing to indicate that an abortion was necessary to preserve her life and health, and he thought that she could have borne a full-term child without danger to life or health. Cross-examined, he said that there was nothing to indicate the means by which the abortion had been produced. The employer of the woman testified that she had cooked for his family from September, 1905, to the time of her illness. She was apparently in good health and performed her duties satisfactorily. A member of the detective force testified to visiting defendant’s house on October 16, 1903, and entering his office. With some difference as to the furniture, his statement as to situation, furnishings, and the sign of Dr. Leon corresponded with the description given by Sadie Volk in her testimony. He said that defendant, whom he saw there, had lived there from five to eight’ years. The defendant objected to this evidence, which was offered as tending to corroborate Sadie Volk, but the court ■overruled the same, and exception was taken.</p> <p>The United States having closed the case with this evidence, the defendant produced his wife, whose testimony tended to show that the defendant was not in his house on October 11, 1905; was not at home on Wednesday or Wednesday night. Defendant then offered himself as a witness, and denied having seen or operated upon Sadie Volk. Had never seen her before the trial. The defendant was cross-examined at length by the counsel for the United States, as to his practice, etc., and as to the reasons why his full name was not on his sign. He said it was a sign used by an uncle of that name whom he had succeeded. He admitted that he was not a licensed physician. He was then asked if he had ever been convicted of murder. He denied that he had ever been convicted of murder or manslaughter. He was then asked if he had ever been tried for either offense. The following then occurred:</p> <p>Q. Is it not true that you were convicted of murder, the charge being the killing of a woman by an abortion ?</p> <p>A. No sir.</p> <p>Q. That you were convicted, that- a new trial was granted you, and you were convicted of manslaughter and a new trial was given you, and you were convicted again Í</p> <p>A. No, sir; that is not true, not on the grounds you speak of.</p> <p>Q. Well, on any ground.</p> <p>A. I was tried for committing an abortion. The woman did not die.</p> <p>Q. The child died, though, and yon were convicted of murder, were you not?</p> <p>A. You mean by the jury ?</p> <p>Q. Yes.</p> <p>A. The first trial?</p> <p>Q. Yes.</p> <p>A. Yes sir.</p> <p>Q. Then you got a new trial and were convicted of manslaughter ?</p> <p>A. Yes.</p> <p>Q. And then that verdict was set aside.</p> <p>A. Yes, the case was nolle pressed.</p> <p>The Court (to the Prosecuting Attorney) And that is all there is to it ?</p> <p>U. S. Attorney. Yes, that is all.</p> <p>The defendant objected to each and every question so asked as to former trials, and at the conclusion moved the court to strike out all of the aforesaid testimony. The court overruled the objections and motion, defendant noting exceptions in each instance.</p> <p>The defendant asked special instructions to the jury to the effect that the witness Sadie Volk was, in law, an accomplice of the defendant, and that her evidence must be corroborated in order to convict.</p> <p>The general charge was not excepted to.</p> <p>The jury returned a verdict of guilty, and after overruling a motion for new trial the court sentenced the defendant to imprisonment for two years in the penitentiary.</p> <p>Mr. Daniel W. Baker, United States Attorney for the District of Columbia, and Mr. Stuart McNamara, Assistant, for the United States, appellee.</p>

<p>Hearing on a petition by tbe commissioners of tbe District of Columbia for tbe writ of prohibition to a gaslight company and to one of the associate justices of the Supreme Court of the District of Columbia, to prohibit that court from proceeding to act upon a petition of the company for the ascertainment by the court of the value of its plant, etc., as the basis for the increase of its capital stock, as provided for by the act of Congress of June 6, 1896, sec. 5</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This petition was filed December 11, 1907, by the commissioners of the District of Columbia, praying for a writ of prohibition to issue to the Washington Gaslight Company and to Mr. Justice Ashley M. Gould, of the supreme court of said District, prohibiting the said justice from entertaining the petition of the Washington Gaslight Company, presented under the provisions of an act of Congress approved June 6, 1896, for an ascertainment of the actual cash value of the plant, etc., as the basis for an increase of its capital stock.</p> <p>A rule to show cause why the writ shall not issue was served upon said company and said justice, to which they have made returns.</p> <p>From the petition and return the following facts appear:</p> <p>The Washington Gaslight Company was incorporated by special act of Congress on July 8, 1848, with an authorized capital of $50,000. This stock has been increased from time to time until it amounts to $2,600,000. On June 6, 1896, Congress passed an act concerning the sale of gas in the District of Columbia, the first four sections of which regulate the purity of the gas and the price to be charged therefor.</p> <p>Sec. 5 reads as follows:</p> <p>“That neither the Washington Gaslight Company nor the* Georgetown Gaslight Company shall hereafter issue any greater number of shares of stock than shall be equal to the actual cash value of said plants and necessary cost of the construction of future extensions or future enlargement of plants, which cash value and cost of extensions shall first be ascertained and authorized upon petition therefor to the supreme court of the District of Columbia, under such regulations as the chief justice and the justices thereof shall prescribe; also, if either of the said corporations shall desire hereafter to issue bonds upon their property, secured by mortgage or otherwise, upon petition therefor to said court, setting forth the necessity thereof and the-amount of stock issued and outstanding, it may and shall be lawful for said court, or the chief justice and justices thereof, as, the case may be, * * * to permit the issuance of such bonds and mortgage as desired: Provided, That the amount of stock and bonds issued shall not exceed the actual cash value of said plants and the cost of such extensions or enlargement of plants: And provided further, That the Washington Gaslight Company is hereby authorized to issue such additional amount of capital stock as will provide for the conversion into such stock of its outstanding certificates of indebtedness, which conversion of said certificates is hereby authorized to an amount not exceeding six hundred thousand dollars.” [29 Stat. at L. 252, chap. 335.]</p> <p>On June 10, 1907, the Georgetown Gaslight Company, the only other manufacturer of gas in the District of Columbia, filed its petition in the supreme court of the District, praying the ascertainment of the cash value of its plant and the necessary cost of construction of future extensions or enlargements of the same, under the provisions of said act.</p> <p>Upon the presentation of this petition the supreme court of the District prescribed the following rules of procedure in such cases:</p> <p>“Regulations prescribed by the chief justice and the associate justices of the supreme court of the District of Columbia for proceedings under sec. 5 of an act of Congress entitled ‘An Act relating to the Sale of Gas in the District of Columbia,’ approved June 6, 1896.</p> <p>“1. Petitions under the act of Congress entitled ‘An Act Relating to the Sale of Gas in the District of Columbia,’ approved June 6, 1896, shall be filed on the equity side of the supreme court of the District of Columbia.</p> <p>“2. Upon the filing of the said petition, one of the justices sitting on the equity side of the court shall fix a time for the initial hearing of the said petition; and thereupon the clerk of the court shall cause notice of the time and place of the said initial hearing and of the objects of the said petition to be published in two or more newspapers of general circulation in the District of Columbia once a week for three successive weeks prior to said hearing. He shall also cause a copy of the said petition, together with notice of the time and place of the said hearing, to be served upon at least one of the commissioners of the District of Columbia and upon the Attorney General or Solicitor General of the United States, all or any of whom shall be entitled to appear at said initial or any subsequent hearing, and to be represented by counsel, and to present such evidence upon the matter of the said petition as to them or any of them shall deem proper. Any one or more stockholders in every company filing said petition shall also be entitled to be heard in person or by attorney. :</p> <p>“3. At such initial meeting such justice shall determine the manner in which testimony in support of or against the matter of said petition shall be taken. Said justice may refer the matter of said petition to the auditor of this court, or to a special master, to take said testimony and to report the same, with his findings thereon, to said equity court; or said justice may take the said testimony in open court, or may cause the same to be taken by an examiner in chancery.</p> <p>“i. The final hearing of the said matter shall be had before any justice sitting upon the equity side of this court, after at least ten days’ notice to the attorneys who may have appeared in the said case under the foregoing regulations.</p> <p>“5. All proper costs and expenses (but not including counsel fees) incurred under these proceedings shall be paid by the petitioner, unless otherwise ordered by said justice.”</p> <p>November 5, 1907, the Washington Gaslight Company filed its petition under the act aforesaid, for the ascertainment of the actual cash value of its said plant and the cost of future extensions, or enlargement of the same. The day of hearing the petition was set for the 2d day of December, 1907, and notice was given by publication, as provided in the rules of procedure aforesaid, as well as to the Attorney General of the United States and the commissioners of the District of Columbia. The commissioners appeared by counsel and presented a motion to dismiss the petition on the following grounds:</p> <p>(a) That the act of Congress entitled “An Act Relating to the Sale of Gas in the District of Columbia,” approved June 6, 1896, under which said petition is filed, does not confer jurisdiction on the supreme court of the District of Columbia to grant any of the relief prayed for in and by said petition.</p> <p>(b) That the power proposed to be conferred on the supreme court of the District of Columbia in and by sec. 5 of said act is not judicial power within the meaning of art. 8, sec. 1, of the Constitution of the United States, and is therefore unconstitutional and cannot lawfully be exercised by the said supreme court of the District of Columbia.</p> <p>(c) That said sec. 5 of the said act intended to confer power on said supreme court,of the District of Columbia as a judicial function, and cannot therefore be construed as an authorization to the justices composing said court to exercise power thereunder in the character of commissioners or otherwise.</p> <p>(d) That said sec. 5 of said act attemtps to impose a nonjudicial function upon a court exercising the judicial power of the Constitution of the United States.</p> <p>(f) That the proceeding in and by said petition is not a “case” within the meaning of art. 3, sec. 2, of the Constitution of the United States.</p> <p>This motion was denied on December 7, 1907, and the court announced its intention to entertain the said petition and proceed thereunder, and appointed a day on or before which answer should be made thereto. No further proceedings appear to have been had, and the commissioners on December 11, 1907, filed this petition for a writ of prohibition. The Washington Gaslight Company, in answer to the rule to show cause, avers the constitutionality of the act of Congress aforesaid, and the jurisdiction of the supreme court of the District of Columbia thereunder to entertain its said petition, and prays that the petition for the writ of prohibition be dismissed.</p> <p>The formal return of Mr. Justice Gould admits the facts alleged in the petition, but denies the power of this court to issue the writ of prohibition, because it has no appellate jurisdiction in the premises, and avers that if it has such jurisdiction the remedy of petitioners is by appeal. It also affirms the constitutionality of the act of Congress and the jurisdiction of the supreme court of the District of Columbia thereunder.</p> <p>1. For nature and functions of the writ of prohibition, see Bl. Com. bk. 3, p. 112; Warner v. Sucherman (1615) 3 Bulst. 120; Shortt, Informations, Mandamus & Prohibitions, p. 427. The supreme court of the District of Columbia is the common-law court of original and general jurisdiction in that District. Kendall v. United States, 12 Pet. 524; United States v. Schurz, 102 U. S. 378, and it is the only tribunal in the District of Columbia having original jurisdiction to issue the prerogative writs. The court of appeals of the District of Columbia has no original jurisdiction. Its jurisdiction is appellate only. Sec. 220 and 226 D. 0. Code. If appellate jurisdiction exists, the remedy is clearly by appeal, and not by prohibition. If, on the other hand, it does not exist, then the court of appeals cannot issue the writ of prohibition in aid of a nonexistent appellate jurisdiction. For the way the writs of mandamus and prohibition aid the appellate jurisdiction, see Barbour Asphalt Paving Go. v. Morris, 132 Fed. 945. Only those writs can be in aid of the appellate jurisdiction which compel lower courts to take such action as will aid, or refrain from taking such action as will hinder, the particular case from reaching appellate court. Barbour Asphalt Paving Go. v. Morris, supra. The issuing of the writ of prohibition, as prayed in the case at bar, would prevent that case from ever reaching this court, even supposing appellate jurisdiction to exist. It would not aid, but would, on the contrary, destroy, appellate jurisdiction. An appellate court cannot create a cause for the exercise of its appellate jurisdiction. Barbour Asphalt Paving Go. v. Morris, supra. The appellate jurisdiction, must exist in the particular case. Ex parte Christy, 3 How. 292. The prerogative writs cannot be used as writs of error. Be Bice, 155 U. S. 396; Smith v. Whitney, 116 H. S. 167. Prohibition will not issue when there is an adequate remedy by writ of error or appeal. Be Iiuguley Mfg. Co. 184 H. S. 297, 46 L. ed. 549 Sup. Ct. Eep. 455. That no appeal or writ of error is provided by law in the given case is immaterial. Ex parte Christy, 3 How. 292; Ex parte Detroit Biver Ferry Co. 104 H. S. 519; Be Cooper, 143 IT. S. 495. Decisions of the supreme court of the United States in point are as follows: United States v. Peters, 3 Dali. 121; Ex parte Crane, 5 Pet. 190; Ex parte Christy, 3 How. 292; Ex parte Gordon, 1 Black, 503; Ex parte Yerger, 8 Wall. 97; Ex parte Graham, 10 Wall. 541; Ex parte Warmouth, 17 Wall. 64; Ex parte Easton, 95 U. S. 68; Ex parte Gordon, 104 U. S. 515; Chesapealce & O. B. Co. v. White, 111 U. S. 134; Smith v. Whitney, 116 U. S. 167; Be Cooper, 138 U. S. 404; Be Fassett, 142 U. S. 479; Be Cooper, 143 U. S. 472; Be Bice, 155 U. S. 396; Be Massachusetts, 197 U. S. 482; Ex parte Glaser, 198 U. S. 171; Fields v. United States, 205 U. S. 292; Ex parte Wisner, 203 U. S. 449. See also Taylor, Jurisdiction & Procedure of the U. S. Sup. Ct. p. 553, and an editorial note, which is really a complete treatise upon the subject, contained in Lawyers’ Beports, Annotated, book 51, pp. 33 to 112, both inclusive. Precedents in this court are Ex parte Dries, 3 App. D. C. p. 165; Defer v. Kimball, 7 App. D. O. 499; Church v. Fidelity & Deposit Co. 13 App. D. C. 264; Sullivan v. District of Columbia, 19 App. D. C. 210; United States ex rel. Morris v. Scott, 25 App. D. C. 88; United States ex rel. Holmead v. Barnard, 29 App. D. C. p. 431.</p> <p>It would seem from the foregoing decisions that the court of appeals of the District of Columbia has explicitly decided: First. That it is a court of appellate jurisdiction only.</p> <p>Second. That it cannot issue the prerogative writs as original writs.</p> <p>2. The act of Congress in question is constitutional. The constitutional assignment of all governmental functions to three different departments, — the legislative, the executive, and the judicial — is not absolute, exhaustive, or exclusive. Story, Const, secs. 518-554; Cooley, Const. Lim. p. 115; United States v. Cooper, 20 D. 0. 104, S. C. 147 U. S. 272. The duty imposed upon the supreme court of the District of Columbia by the act in question is judicial in nature. Chicago, M. & St. P. 11. Co. v. Tompkins, 176 IT. S. 167. Courts have an inherent power over artificial persons or corporations, which they have not over natural persons. The legislature may, for proper cause, repeal the charter of a corporation; but it is equally true that the court, on the institution of a proper suit, may enforce the forfeiture of a charter. 2 Clark & M. Corp. secs. 303, 304, 312; 2 Cook, Corp. secs. 628 et seq. The act of Congress in question is in conformity with much similar legislation on the part of Congress. Instances of such legislation are the following:</p> <p>(1) The act of Congress of June 10, 1896, “To Extend the Routes of the Eckington & Soldiers’ Home Railway Company and of the Belt Railway Company, of the District of Columbia, and for Other Purposes,” secs. 3 and 6. (2) The act of February 27, 1893, “To Amend the Charter of the Bright-wood Railway Company of the District of Columbia,” secs. 3 and 4. (3) The act of July 8, 1898, “To Incorporate the Washington & University Railroad Company of the District of Columbia,” sec. 20. (4) The act of July 29, 1892, “To Incorporate the Washington & Great Falls Electric Railway Company,” sec. 2. Under the terms of this act a petition was filed in the supreme court of the District of Columbia on May 28, 1895, No. 16,481. Equity. Upon consideration of this petition the court on the 29th day of May, 1895, ordered publication to be made, giving notice of the objects sought by the said petition, and on the 6th day of June, 1895, after the taking of testimony, passed an order fixing the value of the actual and necessary cost of the construction and equipment of the said railway, and allowing the company to increase its capital stock to the sum of $650,000, and further allowing the company to retire 500 shares of the stock of the nominal value of $100 a share, and to issue coupon bonds in lieu thereof. This order will be found in Equity Minutes 42, at page 346. (5) The act of June 3, 1896, “To Amend an Act Entitled ‘An Act to Incorporate the Washington & Great Ealls Electric Railway Company.’ ” It is of importance to note that by this act of June 3, 1896, Congress expressly referred to and confirmed the stock and bond issue allowed by the decree of the supreme court of the District of Columbia passed in the equity cause above cited, and that within a few days thereafter (June 6, 1898) the act in question here was passed. It is therefore apparent that the legislation called in question here was not spasmodic or ill considered, but was a part of a determined and preconcerted plan, deliberately adopted and repeatedly followed by Congress.</p> <p>Authorities and decisions confirming the judicial nature of the power hereby conferred, and of similar powers, are as follows': 1 Clark & M. Corp. pp. 115, 116; 10 Cyc. Law & Proc. p. 219; Ex parte Chadwell, 3 Baxt. 98; Mayor v. Shelton, 1 Head, 24; Franklin Bridge Co. v. Wood, 14 Ga. 80; Granr try Co. v. Richards, 95 Mo. 91; Kayser v. Bremen, 16 Mo. 91.</p> <p>Instances of assignments to courts by legislatures of special judicial functions, will be found in Re Canada Northern R. Co. v. International Bridge Co. 7 Eed. 653. McCrea v. Roberts, 89 Md. 238; Zanesville v. Zanesville Teleg. & Teleph. Co. 64 Ohio St. 67, 52 L.R.A. 150; State v. Circuit Court Judge, 52 N. J. L. 585, 1 L.R.A. 86; State v. Collins, 19 Ark. 587; Morton v. Woodford, 99 Ky. 367; Locke v. Speed, 62 Mich. 408;Somerset Co. v. Hunterdon Co. 52 N. J. L. 512; Re Mt. Morris, 41 Hun, 29; State v. George, 22 Or. 142; Kaufman Co. v. McGaughey, 11 Tex. Civ. App. 551; Edes v. Boardman, 58 N. H. 580. Other decisions in point might be cited, but these are sufficient. Naturally, in the multiplicity of decisions in this country, some may be found on the other side, but they are ill considered and have no inherent weight.</p> <p>Decisions of the Supreme Court of the United States in point are as follows: Ex parte Siebold, 100 U. S. 371 (followed in •:People v. Hoffman, 116 111. 603; Oregon v. George, 22 Or. 158) ; Interstate Commerce Commission v. Brimson, 154 U. S. 447; United States v. Duett, 172 U. S. 576; La Abra Silver Min. Co. v. United States, 175 U. S. 423.</p> <p>The foregoing cases would seem to be conclusive upon the constitutionality of the act of Congress in question here. Certainly, the duty imposed upon the court in the present case is more judicial than that imposed in any of the cases cited. See also Nishimura Ekinv. United States, 142 U. S. 651, 660; Fong Yue Ting v. United Stales, 149 U. S. 698; Garrison v. New York, 21 Wall. 196; United States v. Jones, 109 U. S. p. 513; Frelinghuysen v. Key, 110 U. S. 63; Field v. Clark, 143 U. S. 649. See also the following decision of this honorable court: Chan Gun v. United Stales, 9 App. D. C. 290. The proceeding in question is a cause within the meaning of the Constitution of the United States. Sec. 266, Taylor’s Jurisdiction and Procedure of the United States Supreme Court. All ex parte proceedings are “cases” although the traditional reus is not always distinctly present. Of course, the Federal courts, having no municipal jurisdiction, do not afford many precedents of the commonest exercises of judicial power in such cases. But the local tribunals are full of such proceedings as the following, all of which are more or less ex parte: The adjudication of lunacy; the appointment of guardians to the young, aged and, in many jurisdictions, to habitual drunkards; the change of name of a private person; probate proceedings; many other instances might be mentioned. In the Federal courts the most conspicuous examples of ex parte proceedings are: The proceedings upon the application for all extraordinary writs; proceedings for naturalization; proceedings for extradition; proceedings for deportation; proceedings for patents; and others not necessary to enumerate. See Ex parte Milligan, ■4 Wall. 2.</p> <p>The power of Congress to legislate for the District of Columbia is derived from art. 1, sec. 8, par. 17, of the Constitution of the United States. It is undoubtedly true, as was decided in the case of Roach v. Van Riswick, MacArth. & M. 171, that Congress is not a local legislature in reference to this District, but it legislates for the District in its character as a national legislature, and therefore cannot delegate to a local legislative assemblage power to pass acts such as in the States would be the proper subject of State legislation. See also, to this effect, Cohens v. Virginia, 6 Wheat. 264. Congress may, by virtue of this provision of the Constitution, legislate over the District of Columbia as any State legislature over its subordinate municipalities. Mattingly v. Distmct of Columbia, 97 U. S.-690. It can levy a direct tax on the District of Columbia by virtue of the article mentioned, even though the general language of the Constitution in regard to direct taxation is confined to the States. Loughborough v. Blake, 5 Wheat. 317.</p> <p>It therefore -follows that its power of appointing judicial officers in the District of Columbia, and the authority of those officers when appointed, are derived from art. 1, sec. 8, of the Constitution, and not from art. 3, sec. 1, which confers the general judicial power of the United States. See also, on this point, Shoemaker v. United States, 147 U. S. 298; Callan v. Wilson, 127 U. S. 540.</p> <p>Objection has been made to the constitutionality of the act, in that the gas company, after the court has determined the actual cash value of the plant and necessary cost of the construction of future extensions or enlargements, is not compelled to issue stock for such amount. While this may be admitted to be true, it is equally true that the important point in the case, and the point determined, is the cash value of the plant and extensions. This is a judicial determination which is absolutely final and binding, and which cannot be avoided by the corporation. The nearest analogy to this act in the respect at present under consideration is furnished by condemnation proceedings. Both the courts of this District and the Supreme Court of the United States have repeatedly decided that the constitutionality of condemnation acts is by no means impaired by the fact that the judicial ascertainment of the value of the lands to be taken imposes no binding duty on the sovereign, or the person or body to whom the duty of deciding the propriety of paying the amount is delegated, to take the lands at the ascertained value. See also secs. 486, 490 of the Code of Law for the District of Columbia; United States v. Jones, 109 TL S. 513; Shoemaker v. United States, 147 U. S. 282; United States v. Cooper, 20 D. C. 104; United States v. Gettysburg,■, etc. B. Co. 160 IT. S. 668; Bauman v. Boss, 167 D. S. 548. Perhaps as strong an analogy is to be found in the jurisdiction of this honorable court in appeals from decisions of the Commissioner of Patents.</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>

Hearing oil an appeal from a decision of the Commissioner of Patents sustaining a demurrer to an opposition to the registration of a trademark and refusing leave to amend. The facts are stated in the opinion.

<p>Patents; Interference; Foreign Patents; Statutes; Constitutional Law; Vested Eights; Obligations of Contracts; Policy of the Law.</p> <p>1. In an interference proceeding between foreign inventors, in which both parties rely upon the dates of the filing of their respective applications here and abroad, the fact that one of the parties was granted a patent while the application of his rival was pending in the Patent Office will give him no superior rights, but he will be regarded merely as an interfering applicant. (Following Paul v. Hess, 24 App. D. C. 462.)</p> <p>2. Under the act of Congress of March 3, 1903 (32 Stat. at L. 1225, chap. 1019, U. S. Comp. Stat. Supp. 1907, p. 1003), amending the act of March 3, 1897 (29 Stat. at L. 692, chap. 391, U. S. Comp. Stat. 1901, p. 3382), relating to the effect of foreign patents upon applications for patent for the same inventions in this country, an application relates back to the date of the filing of the foreign application, and gives the applicant priority of invention as of that date, while under the original act the applicant’s priority dated only from the filing of his application in the Patent Office here.</p> <p>3. In the absence of language in a statute clearly expressing an intention to the contrary, it will be construed as not having a retrospective operation.</p> <p>4. The act of Congress of March 3, 1903 (32 Stat. at L. 1225, chap. 1019, U. S. Comp. Stat. 1901, p. 1003), amending the act of March 3, 1897 (29 Stat. at L. 692, chap. 391, U. S. Comp. Stat. 1901, p. 3382), relating to the rights of foreign patentees who apply for patents on their inventions here, did not operate retrospectively; so that the rights of an applicant whose application was pending at the time of the passage of the last act are to be governed by the original, and not by the amendatory, act, and his priority of invention will relate only from the date of the filing of his application here, and not from the date of the filing of his foreign application.</p> <p>6.While letters patent, when issued, give the patentee a vested right in them, the mere filing of an application for a patent gives the applicant no such right which Congress has no power to affect by legislation.</p> <p>6. Proceedings requisite to the acquiring of a patent are analogous to the procedure in an action at law before final judgment, where the right is one conferred by statute and entirely dependent upon the legislative will; and in both instances they are mere matters of procedure that may be changed or abolished; and, unless the statute especially provides for the protection of pending cases, it will apply to such cases the same as to future cases arising under it.</p> <p>7. While a patent is a contract between the government and the patentee, the mere assertion of the right to a patent by the filing of an application does not constitute such a contract as will come properly within see. 10, art. 1, Constitution of the United States, declaring that no “State shall make any law impairing the obligations of contracts;” and such prohibition is one upon the States, and not upon Congress.</p> <p>8. The policy of the law belongs to the legislative, and not to the judicial, branch of the'government; and if a statute operates to create a hardship upon an individual, it is beyond the power of the courts to grant relief.</p>

<p>Hearing on an appeal from a decision of the Commissioner of Patents dismissing an opposition to registration of a trademark.</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 from an order of the Supreme Court of the District of Columbia, denying the probate of a will after the trial by jury of issues to determine its validity. The Court in the opinion stated the facts as follows: This is an appeal from an order denying the probate of the will of Charles ft. Morgan, who died in the District of Columbia October 24, 1905. The will was executed and attested by the requisite number of subscribing witnesses on February 23, 3905.

<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 denying an application for registration of a trademark.</p> <p>The facts are stated in the opinion.</p>

Hearing on an appeal by. tbe relator from a judgment of the Supreme Court of the District of Columbia dismissing a petition for a writ of mandamus against the Commissioner of Patents.

Hearing on two appeals from decisions of the Commissioner of Patents in interference proceedings. The facts are stated in the opinion.

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

Hearing on. an appeal from a decision of the Commissioner of Patents dismissing an opposition to the registration of a. trademark. The facts are stated in the opinion.

<p>Patents; Intebfeeence; Bueden of Peoof;</p> <p>1. The burden of the junior applicant in an interference proceeding is added to, where, before his application was filed, a patent was granted to his adversary.</p> <p>2. In an interference proceeding involving the invention of an improvement in wireless cluster-sockets used as parts of electrical fixtures, where it appeared that the junior party was the inventor and manufacturer of patented clusters, and sold them to a company manufacturing and selling electrical fixtures, of which the senior party was president, under an agreement to supply the company with his devices and improvements thereon; that competition with a later inventor caused diminution in the sales of such devices, and suggested the importance of improvements; that the senior party admitted that before his alleged conception and disclosure the junior party had shown him a device similar to the construction of the issue, but without its “interior construction,” and said that if he had shown him a device of precisely such construction he would have told him it was not practicable, — it was held that the junior party was entitled to an award of priority of invention.</p>

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

<p>Patents; Interference; Originality of Invention; Burden of Proof.</p> <p>1. In an interference proceeding, the fact that one of the parties has been granted a patent for the invention of the issue will give him no advantage over the other party, where the latter’s application was pending when the patent was granted.</p> <p>2. In an interference involving the invention of an improvement in combined beds and couches, between the general manager and the foreman of the upholstery department of a furniture factory, where it appears that although the manager realized the importance of improving the old style of the combined bed and couch, and may have had the idea of substituting therefor a swinging one, such as the on embodied in the invention of the issue, he failed to prove a conception of the means to accomplish the desired result, while the foreman assembled all of the parts and produced the first construction of the article in the factory, it was held, that the manager, upon whom was the burden of proof, as junior applicant, had not overcome the case in favor of the foreman, and that therefore the latter was entitled to an award of priority of invention.</p>

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia on a verdict in an action of assumpsit. Tbe facts are stated in tbe opinion.

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

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

<p>Contracts; Sales; Mistake; Prejudicial Nrrob.</p> <p>1. Before there can be a contract, the minds of the parties must meet honestly and fairly, without mistake or mutual misunderstanding upon all the essential points involved.</p> <p>2. If in a contract of sale the seller names a consideration that is out of all proportion to the value of the subject-matter, and the purchaser,, realizing that a mistake must have' been committed, takes advantage of it, and refuses to let the mistake be corrected when it is discovered, he cannot properly claim there is an enforceable contract.</p> <p>3. Where, upon receipt of a bill for goods, the purchaser discovers that in the negotiations for the purchase a mistake was made as to the selling price, and he refuses to .return the goods, he will be deemed to have accepted them at the price for which they were billed, and thereby a new and enforceable pontract will be created upon which lie-may be held liable.</p> <p>4. Where the evidence called for the direction of a verdict for the plaintiff, but the ease was submitted to the jury, who found for the plaintiff, the defendant has no right to complain of error in the trial court’s instructions to the jury.</p>

Hearing on. an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, for want of a sufficient affidavit of defense, in an action to recover the purchase price of books. The Court in the opinion stated the facts as follows: This action was begun by the appellees, George Barrie & Sons, to recover the sum of $1,540 for seventy-seven volumes of books sold to the appellant, Charles G. Patterson, at the price of $20 per volume.

Hearing on an appeal by the respondents in condemnation proceedings, from an order of the Supreme Court of the District of Columbia denying their motion to vacate an order confirming an award assessing damages and benefits. ■ The facts are stated in the opinion.

<p>Equity; Partnership; Accounting; Attorneys; Appears.</p> <p>1. In a partnership accounting between the representatives of the estates of deceased attorneys, where the administrators of one of the attorneys after his death, through another attorney, procured a power of attorney to themselves and him from a former client of the partnership and a new contingent fee contract, and prosecuted the case, the partnership is entitled to only so much of the fee received as was earned by the partnership up to the time of the death of the partner last deceased.</p> <p>2. Where an attorney prosecuting claims under a partnership agreement with another attorney, since deceased, who had the original powers of attorney from the claimants, procured new powers of attorney from the claimants in the names of his son-in-law and daughter, who were assisting him in the cases, and they prosecuted the cases in their names, and after his death collected the fees, the estate of the partner first deceased is entitled to one half of the fees so collected.</p> <p>.3. Ordinarily, it is within the discretion of the lower court to reopen a case and permit additional testimony to be taken; and error cannot be assigned on a refusal so to do, unless the circumstances indicate an abuse of that discretion.</p> <p>4. Parties prosecuting an appeal to this court are concluded as to matters determined on such appeal; and on the case going back to the lower court that court cannot properly allow such matters to be reheard.</p> <p>.5. In a partnership accounting between the estate of a deceased partner and the surviving partner, involving fees collected in the prosecution of cases in the court of claims, the share of the estate of the deceased partner in a fee in one of the partnership cases cannot properly be reduced by an arrangement made by the surviving partner with a local attorney whereby the local attorney’s original share of the fee was increased from 10 to 15 per cent for procuring a new fee agreement, in the name of the surviving partner, with the heirs of the claimant.</p> <p><3. Where an attorney, having claims for prosecution in the court of claims, turned over the cases to another attorney for prosecution, under an agreement to pay him one half of the fees collected; and the latter, after the death of the former, agreed to pay a local attorney one half of the fee in one of the cases, — the decedent’s estate is not bound by such agreement, but can only be charged with one half of the reasonable value of the services performed by the local attorney.</p> <p>7. An assignment of errors based upon an alleged excessive allowance to receivers will not be considered, where the record shows that the auditor reported on the account of the receivers and made them the allowance complained of, but does not contain the report, or anything by which this court can determine the nature and value of the services.</p> <p>8. An assignment of error based upon the action of the auditor in allowing interest to one of the parties in a partnership accounting on moneys collected by the other party will not be considered where no exception was reserved to his report on account of the allowance of the interest.</p> <p>9. A decree in an equity cause involving a partnership accounting, affirmed in all respects, except as to certain items, and reversed as to those items, and the cause remanded, with direction to restate the account to the date of the decree; one half of the costs of appeal to be paid by each party.</p>

<p>Hearing on an appeal by the defendants from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action of assumpsit.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an action at law instituted in the supreme court of the District of Columbia by appellee, Henry P. Morris, against Edwin 0. Clark and Eugene Davis, trading as Clark & Company, and the Mexican Mining & Exploration Company, a corporation. The declaration is in common counts, and the demand is for services rendered by appellee in securing subscriptions to the capital stock of the Mexican Mining & Exploration Company. The action is based upon an agreement in the form of a letter addressed to the plaintiff in February, 1903, sent by Clark <& Company, as follows: “We agree to employ you to solicit subscriptions to the stock of the Mexican Mining & Exploration Company, and will pay you a commission of 20 per cent on all subscriptions obtained by you, or through your influence.” Appellee admitted that he was only to be paid .commissions upon such subscriptions as were paid.</p> <p>The facts appearing in the record are to the effect that appellee agreed to the terms of said employment, and had confer•enees from time to time with appellant Davis, of Clark & Company, and with the officers and directors of the mining company. During his employment he procured subscriptions to said stock, at $2.50 per share, from one Cowen, of 5,000 shares, amounting to $12,500, together with some other smaller subscriptions. When Cowen subscribed, he stated to appellee that he would take 5,000 shares, and would endeavor to interest some of his friends in the stock, — among others, one Garrett. The appellee informed appellant Davis of his conversation with Cowen, and stated that he would attempt to secure an additional subscription from him, and also see him regarding the subscription to Garrett. Appellee, under the direction of Davis, continued his efforts with Cowen, and together they called upon Davis at the office of the mining company, in Washington. Davis directed appellee to return to Baltimore on the same train with Cowen, and talk further with him about the purchase of stock. Appellee returned to Baltimore, as directed, with Cowen, discussing with him the matter of an additional subscription, and also the best method of procuring the Garrett subscription. Appellee was preparing to go to see Garrett when Davis instructed him not to go until he should notify him. Later, appellee spoke to Davis regarding Garrett’s coming into the company, and Davis replied, “Not to 3vorry, that Mr. Cowen would see him at the eariest time convenient.” Appellee called upon Cowen to urge him to see Garrett, to which Cowen replied, “I will see him in a day or so.” Appellee was urging Davis almost daily to let him see Garrett, and, if possible, procure his subscription, but Davis still requested him to wait.</p> <p>Later, in the spring or summer of 1903, Cowen, who had become a director in the defendant company, and Garrett, visited the mines of the company, in Mexico. Considerable correspondence between appellee and Clark & Company and Davis appears in the record, showing that up to the time that Cowen and Garrett returned from Mexico, in the summer of 1903, Clark & Company and Davis were not only urging appellee to dispose of the stock of the company, but had induced appellee himself to invest in the stock of the company to the amount of $2,500. It further appears that, on the return of Cowen and Garrett from. Mexico, appellee inquired of Davis if they had subscribed, and was told that they had not. Appellee testified, which is not contradicted, that Davis-avoided meeting him from that time on, although before that time they were in almost daily communication; that shortly after the return of Garrett and Cowen from Mexico he learned that Garrett had subscribed for $12,500-worth of stock, and that Cowen had increased his holdings by-taking $6,500 additional stock. It is for the recovery of the commission on the sale of this stock that this suit was brought in the lower court.</p> <p>The record evidence of sales of stock to Cowen and Garrett, are disclosed by two receipts, which are as follows:</p> <p>June 10th, 1903.</p> <p>Deceived from Clark & Company Interim Certificate No. 151 of Mexican Mining and Exploration Company for 10,000 shares. *</p> <p>Baltimore.</p> <p>John K. Cowen.</p> <p>January 29, 1904.</p> <p>Deceived from Clark & Company, Interim Certificate No. 244 of The Mexican Mining & Exploration Company for 5,000 shares.</p> <p>Continental Building, Baltimore, Md. Dobert Garrett.</p> <p>The aforegoing facts were not controverted by any evidence offered on behalf of the appellants.</p>

Hearing on an appeal by tbe 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 is an action brought by Dominico Diaria against the Washington Southern Railway Company, a corporation engaged in the operation of a railway in the State of Virginia, to recover damages for personal injuries.

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 damages for the negligent use of a party wall.

<p>Hearing on a motion to dismiss an appeal.</p>

<p>Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, rendered on an agreed statement of facts, in an action to recover usurious interest alleged to have been paid.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This suit was brought in the supreme court of the District of Columbia by appellee, Eva Slocum, plaintiff below, to recover from appellant, O. P. M. Brown, the sum of $48.60, alleged usury paid by appellee to appellant. The case was submitted to the court below on an agreed statement of fact, which, among other things, sets out an application for a loan .signed and sworn to by appellee, the material part of which is as follows: “Miss Eva Slocum, single, hereby applies to Citizens Loan & Trust Co. for a loan of $183.60, to be repaid in twelve equal instalments, to be secured by a Deed of Trust upon certain personal property to be mentioned therein. I hereby agree to pay interest on said loan at the legal rate and to pay Citizens Loan & Trust Co. for services and expenses in investigating the application, in appraising the property, taking inventory of same, preparation of deed of trust, recording fees, and collecting payments, the sum of $48.60, the said sum to be deducted from' the loan.” Appellee also gave the following note:</p> <p>$183.60.</p> <p>No. 280. District of Columbia, October 31, 1905.</p> <p>For value received I promise to pay to the order of Citizens Loan & Trust Co. One Hundred eighty-three and 66/100 Dollars in the following manner, to wit:</p> <p>$15.30 January 4, 1906.</p> <p>$15.30 February 4, 1906.</p> <p>$15.30 March 4, 1906.</p> <p>$15.30 April 4, 1906.</p> <p>$15.30 May 4, 1906.</p> <p>$15.30 June 4, 1906.</p> <p>$15.30 July 4, 1906.</p> <p>$15.30 August 4, 1906.</p> <p>$15.30 September 4, 1906.</p> <p>$15.30 October 4, 1906.</p> <p>$15.30 November 4, 1906.</p> <p>$15.30 December 4, 1906.</p> <p>At any place designed by the holder hereof, with interest at the rate of six per'centum per annum after maturity until paid.</p> <p>Provided, That upon default in payment of any instalment when due the whole amount of this note then unpaid shall be and become immediately due and payable.</p> <p>Eva Slocum.</p> <p>It was also agreed that the $48.60 was deducted at the time the loan was made, which it was agreed was, “under the law in force in the District of Columbia, usury.” The payments were all made when due. Appellant then interposed a plea that the payment complained of as usurious by appellee was made more than one year before the institution of this suit, and is barred by the statute of limitations. Upon these facts judgment was rendered for plaintiff, from which this appeal is prosecuted.</p>

Hearing on an appeal by one of two defendants from a judgment of fiat of tbe Supreme Court of tbe District of Columbia, on a writ of sci. fa. to revive a judgment. The Court in the opinion stated the facts as follows: This is an appeal from a judgment of fiat entered in the supreme court of the District of Columbia against appellant, Henry K. Simpson, and in favor of appellee, William S. Min-nix.

Hearing on a petition for a writ of prohibition to a Justice of the Supreme Court of the District of Columbia, holding a probate term, and to parties to a proceeding in that court, to prohibit proceedings under an order framing an issue for trial by jury.

<p>Hearing on. an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, upon a verdict directed by the court in an action of ejectment.</p> <p>The facts are stated in the opinion.</p>