Volume 31 — Appeals, District of Columbia

<p>Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict,, in an action by a broker to recover commissions.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This action was begun in the justice’s court by Joseph R. Atkinson, a real-estate broker, to recover the sum of $240 claimed as commission on a sale of certain premises made by him for the defendant. On appeal from a judgment for plaintiff in-that court, judgment was rendered for plaintiff for said sum in the supreme court of the District.</p> <p>The bill of exceptions shows that the plaintiff testified to the-effect that he was a real-estate broker, and called on defendant August 31, 1905, in response to a letter from her regarding the sale of property. That defendant told him she wished to sell her dwelling house and would accept $6,000 therefor, and authorized him to sell the same for that sum. That he then and there made a pencil memorandum on the back of the letter. This memorandum was then offered in evidence, and admitted over the objection of the defendant, whose exception was noted. The memorandum is as follows: “1227 11 St. N. W.-</p> <p>10R- b- 2 story and basement, Lot x, Frame Stable, Rent $45,. Price $7,000, Stoves 4, Trust $4,000, 5%, Mrs. Lennan North,, Mr. Bache, South.” His testimony further tended to show that he procured an offer from Bache, who lived in the adjoining: house, of $7,000, and entered into a contract for the sale at. said price, with a deposit of $50. That he reported the sale to defendant, who refused to accept the price, and demanded more. That, on September 12, 1905, he informed her that he had an offer of $7,500. The next day he received a letter from defendant saying she had been offered $7,800 cash, but wanted $8,000. That he endeavored to induce Bache to offer $8,000, but was unable to do so; and she told him she would have to have $8,000 net. Bache then demanded return of his deposit, which was made. Subsequently defendant sold to Bache for $8,000 and conveyed the property.</p> <p>Defendant testified to the effect that she wrote plaintiff in August to call, and told him to receive offers .and submit the same to her, and she would let him know if she would accept. That she declined the offer of $7,000 when submitted to her. That she wrote plaintiff September 13, 1905, that she had an offer of $7,800, but wanted $8,000, adding that he might call if he thought necessary, also thanking him for his trouble. That she had known Bache for fourteen years. He lived next door, and she had, about one year before, talked with him about selling to him. That, when plaintiff reported the offer of $7,-000, he declined to disclose the name of the proposed purchaser. That defendant reported he could not get more than $7,500, and she insisted on $8,000. Later, she put the matter into the hands of her attorney, who sold to Bache for $8,000. Bache testified that, about September, 1904, defendant had told him she wanted to sell, and, in reply to his inquiry of value, she said the property was worth $10,000. To this he made no answer. That, after contracting with plaintiff for $7,000, and defendant’s refusal to accept, he demanded his $50 deposit, as he refused to pay $8,000. Later he heard that defendant’s attorney had the property in charge, and, after negotiations, agreed to pay $8,000. The attorney testified that he undertook the sale in October, 1905, knowing nothing of plaintiff’s negotiations with Bache, to whom, after about two weeks, he effected the sale for $8,000. He charged no commission.</p> <p>The court charged the jury that, if they believed from the evidence that defendant had authorized the plaintiff to sell the property for $6,000, and the plaintiff had secured a purchaser in the person of Bache who had agreed and was willing to pay $7,500 for the property, the plaintiff had earned his commission upon that amount and would be entitled to recover the same; and, further, that, if they believed from the evidence that defendant had simply authorized plaintiff to secure a purchaser of the property without fixing any price thereon, and the plaintiff had secured a purchaser at a price which she accepted and sold for, that defendant had performed his contract and earned his commissions thereon. Further, the court charged the jury that, according to defendant’s contention, the plaintiff would not be entitled to a verdict unless he had found a purchaser willing to pay $8,000 net for said property; and that the burden of proof was on the plaintiff.</p> <p>Defendant excepted to the first of these instructions on the ground that there was no testimony upon which to found such a contract; and to the second, because that there was no evidence that the defendant had ever insisted upon receiving $8,000 net for the property.</p>

Hearing oil an appeal by tbe complainants from a decree of tbe Supreme Court of tbe District of Columbia dismissing a bill of complaint to avoid a sale of real estate for default in paying an assessment for special benefits in condemnation proceedings.

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of the District of Columbia, in an action on promissory notes, for want of a sufficient affidavit of defense- The Court in the opinion stated the facts as follows: The plaintiff below, Honor a Curtin, executrix of Patrick Curtin, deceased, appellee here, declared upon thirteen promissory notes aggregating $586.74 and interest, and also upon the common counts in assumpsit.

<p>King v. Curtin (1) ante, 23, applied and followed.</p>

<p>Hearing on an appeal by tbe complainant from a decree of tbe Supreme Court of tbe District of Columbia vacating a former decree for the complainant and dismissing a bill for specific performance of a contract for tbe sale of land.</p> <p>Tbe Court in tbe opinion stated tbe facts as follows:</p> <p>This suit was brought in tbe supreme court of tbe District of Columbia by tbe appellant, Lewis A. Griffith, plaintiff below, as executor of tbe estate of one Alfred W. Ball, against tbe appellee, William W. Stewart, for tbe specific performance of a contract. It appears that in June, 1903, tbe appellee, referred to hereafter as defendant, entered into a contract to purchase tbe farm of Ball situated in Prince George county, Maryland. Tbe contract was executed on tbe part of Ball by plaintiff, Griffitb, who was acting under a power of attorney from Ball appointing Griffitb as bis agent for tbe purpose of negotiating tbe sale of said land. The contract provided that $500 should be paid in cash on tbe purchase price, and tbe balance of one half of tbe purchase price should be paid-on November 7, 1903. Tbe remaining one half of tbe purchase price was to be paid in five equal annual instalments, with interest thereon at 6 per cent per annum. Tbe contract provided that Ball should remain in possession until November 7, 1903, when a deed should be executed by him and delivered to defendant, and defendant should execute notes to be secured by a purchase mortgage on tbe land to Ball to secure the deferred payments. The $500 was paid on the signing of the contract, but defendant failed to make the payment due on November 7th.</p> <p>On November 5th, two days before payment under the contract became due, Ball died, leaving a will in which the plaintiff was named as executor, and, by its terms, vested with full and complete power over the entire estate of Ball, real, personal, and mixed. The will was duly presented for probate in the probate court of Prince George county, Maryland. The court ordered plaintiff to carry out this contract, and, in compliance with said order, plaintiff demanded performance of the same by defendant, which was refused. Upon such refusal, plaintiff executed a deed and tendered it to defendant, demanding a compliance with the terms of the contract. Defendant still refused’ to carry out the terms of the agreement. Plaintiff, as executor, then instituted this suit to compel defendant to specifically perform the conditions of the contract.</p> <p>At the conclusion of the trial, the court, on February 21, 1906, entered a decree in favor of plaintiff, in which the court held, among other things, that the agreement in complainant’s "bill, dated the 5th day of June, 1903, ought to be specifically performed and be carried into execution; and, in accordance with this finding, the court directed plaintiff to execute and deliver a deed to the defendant and the defendant to execute and deliver the notes and a mortgage, as provided for in the contract. On March 13, 1906, the court, upon a showing that defendant refused to comply with the terms of the decree, entered judgment .against the defendant for the amount of the purchase price then due, and appointed a trustee to receive the deed from plaintiff and execute the notes and mortgage called for in the decree to be executed by defendant.</p> <p>On March 20, 1906, counsel for defendant filed a motion to vacate the decree and for a new trial. This motion was allowed and a rehearing granted, upon which the court entered the following decree: “The decree heretofore entered in this cause having been vacated, new testimony taken, and a rehearing had, the court is of opinion that the heirs and devisees of Alfred W. Ball are indispensable parties, and that the deed tendered by the complainant was insufficient to pass the title, for which reasons alone the former decree was erroneous, and the bill must be dismissed. It is by the court this 2d day of July, 1906, adjudged, ordered, and decreed that the said bill be and the same is dismissed with costs to be taxed by the clerk.” From this decree plaintiff appealed to this court.</p>

Hearing on an appeal by tbe plaintiffs from a judgment of tbe Supreme Court of tbe District of Columbia, upon verdict, in an action of ejectment. Tbe Court in tbe opinion stated tbe facts as follows: In.tbis action of ejectment, brought by appellants, Leander and William L. Scott seek to recover each an undivided one-third interest for life, and Julian F. and C'orinne L. Scott together an undivided one-third interest in fee simple, in lots T and 8 in square 1107 in this city.

Hearing on an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia, on a verdict directed by tbe court, in an action of assumpsit. Tbe Court in tbe opinion stated tbe facts as follows: Tbis is an action of assumpsit instituted against appellee tbe Pabst Brewing Company, for tbe recovery of tbe sum of $2,000.

<p>Hearing on an appeal by the plaintiffs from a judgment of the Supreme Court of the District of Columbia on a verdict directed by the court in an action of assumpsit.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This suit was brought in the supreme court of the District of Columbia by the appellants Joseph C. Hornblower and James Kush Marshall, copartners in business under the firm name of Hornblower & Marshall, plaintiffs below, to recover from the appellee, the George Washington Hniversity, defendant, a balance of $1,605.64, with interest from July 1st, 1903, for services alleged to have been rendered in designing and superintending the construction of two buildings for the defendant corporation. Defendant pleaded non assumpsit, and the bar of the statute of limitations, and gave notice of recouping damages for neglect of duty to the full amount claimed in plaintiffs’ declaration. A jury was impaneled to try the case,, and, on completion of the opening statement of counsel for the plaintiffs, the court directed the jury to return a verdict for the defendant. From the judgment rendered thereon, plaintiffs have appealed to this court. They assign as error: “First,, that the court erred in refusing to let the plaintiffs go to the jury; second, in directing a verdict for the defendant.”</p> <p>It appears from the record that plaintiff’s action was brought on June 30, 1906. Counsel for plaintiffs made the following opening statement to the jury: “On the 1st of July, 1903, plaintiffs considered their services at an end, and sent in their bill, which was 5 per cent of the cost of the buildings. There-was a delay in the payment of their hill and some objection made, whereupon plaintiffs agreed to leave the matter of their-compensation to some fair-minded third person. The defendant doing nothing towards paying this bill, the plaintiffs finally informed them that, unless the bill was paid, they would be obliged to bring suit. In May, 1905, the plaintiffs drew up-the necessary papers, which later they filed in this suit. At that time, however, being reluctant to bring a suit and make public the fact that the defendants were not paying their bills,, the plaintiffs obtained from the defendants a promise that they would submit the subject-matter of the bill to arbitration. Chief Justice Nott, of the court of claims, was named as the person to act in the premises, but, upon applying to him, he declined to act as arbitrator. The parties then agreed upon Lewis J. Davis. Mr. Davis agreed to act, and the plaintiffs were ready to submit their side of the case to him. Mr. John Joy Edson,. one of the officials of the defendants, acted for them. Mr. Ed-son delayed, and so some time elapsed, until at length plaintiffs became satisfied that the agreement to arbitrate was not going to be carried into effect, — -at least, nothing was done iir that direction; and they thereupon filed their suit. The plaintiffs are now in a position where a third party can examine the-items of the hill, and this is just what they had been wanting-to accomplish. They will submit the question of what is due them to the verdict of a jury.” It was further admitted by counsel for plaintiffs that the contractors’ bills for the construction of these buildings were approved by the plaintiffs for payment on March 13, 18, and 21, 1903, respectively, and that the last contractor’s bill was paid on June 24, 1903. The court then asked counsel for plaintiffs upon what ground he expected to show that the bar of the statute of limitations did not apply, to which counsel replied:</p> <p>“First. Though the contract was oral, that Mr. Hornblower, in fact, did work of tjhis kind as late as May 4th, 1903; that, in the case of the law school building, formerly planned and supervised by the plaintiffs, they had waited a reasonable time after the building was completed before they considered their services at an end, and sent in their bill; that this was the custom of plaintiffs, although the plaintiffs were not prepared to prove that it was the universal custom of architects, but it was the custom of this firm.</p> <p>“Second. That the plaintiffs would prove the sending of a letter by the defendants, through their president, Dr. Needham, to plaintiffs as follows:</p> <p>“George Washington University. Washington, D. 0., December 22, 1905.</p> <p>“Dear Sir:—</p> <p>“I have your favor of the 21st instant and have referred it to Mr. Edson, to whom, as I told you, the matter of your claim was referred by the executive committee for adjustment.</p> <p>“Very truly yours, “Charles W. Needham.</p> <p>“Mr. Joseph C. Hornblower, Washington, D. C.</p> <p>“That this letter constituted a written acknowledgment by the defendants of the indebtedness and an implied promise that the defendant would pay what was found due upon the adjustment.</p> <p>“Third. Plaintiffs will show that Mr. Hornblower was waiting for Mr. Edson to go before Lewis J. Davis, and that a considerable time elapsed while the plaintiffs were expecting the defendants to act in accordance with their agreement to refer the subject-matter to the decision of Mr. Davis; that, as soon as plaintiffs were satisfied that the defendants would not carry out their agreement to submit to arbitration, they filed their suit.</p> <p>“Fourth. That, the defendants having given notice of recoupment, and having admitted at the trial that they intended to proceed in accordance with that notice, they (the defendants) are not entitled to rely upon the statute of limitations.”</p> <p>When this statement, in reply to the question of the court, was concluded, the record discloses: “The court asked counsel for plaintiff whether this statement was all of the case. Counsel replied, Wes, your honor;’ and so the fact was. Whereupon the court granted the motion of defendant and directed the jury to find a verdict for the defendant, which was accordingly done.”</p>

<p>Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, on verdict, in an. action of ejectment.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>The appellant, Mary Dod Walker, brought this action in the-supreme court of the District of Columbia, on November 4,. 1905, against the appellees, David Warner, Mary A. Stewart,. Thomas W. living, and Martina Irving, to recover the possession of lot 89 in Thomas and Perry’s subdivision of lots in. square 181, in the city of Washington, and the value of the use- and occupation of the same from and after March 1, 1904. Issue was joined on defendants’ plea of the general issue, not. guilty.</p> <p>Plaintiff claimed under a deed purporting to have been executed by Rebecca Thompson, under seal, on September 13, 1898. Upon a recited consideration of $1 paid to the grantor, the deed, conveyed the title to the lot aforesaid, to the plaintiff, Mary Dod. Walker. That the deed was signed, sealed, and delivered in his-presence was attested by the signature of Clarence F. Donohue. It bore a certificate of the said Donohue, as a notary public, under date of September 13, 1898, of the acknowledgment of execution by the grantor. It was indorsed as recorded by the recorder of deeds for the District of Columbia, on February 29, 1904.</p> <p>Clarence F. Donobue, called as a witness by plaintiff, testified as follows: That, in September, 1898, be was a notary public in and for the District of Columbia ;that, on the 13th day of September, 1898, at the request of the plaintiff, be called at her bouse, No. 202 A street, Northeast, Washington, District of' Columbia, to take an acknowledgment of a deed. There lay upon the table a deed purporting to be a deed in fee simple from Rebecca Thompson to the plaintiff, Mary Dod Walker, and testified that be took the acknowledgment of Rebecca Thompson,, whom be saw sign said deed. There were present at the time, the plaintiff, Rebecca Thompson, and himself. On cross-examination, the witness testified that, before taking the acknowledgment, be asked the grantor, Rebecca Thompson, whether she knew what the paper was, and she said she did; and she further stated that she wanted Mrs. Walker, the plaintiff, with whose family she bad long lived, to have the property and everything she bad. That, when be reached the bouse, be was shown into the parlor, and Rebecca was called by the plaintiff and came into the room from the kitchen. She was a colored woman whom witness judged to be between sixty-five and seventy years of age;, be bad never seen her before, nor has be ever seen her since. She was introduced to witness by the plaintiff. Witness did not read the deed to grantor, nor was it read to her in bis presence. No consideration passed from the plaintiff to the grantor in bis presence. Tbe deed was on the table when witness arrived at the house, and it remained there while be was present and was there when be left, there having been no manual delivery of it.</p> <p>Tbe said deed was thereupon shown to witness and be identified it as tbe one which bad been acknowledged before him.</p> <p>Plaintiff’s deposition on ber own behalf, taken in Florence,. Italy, stated the following facts: “In 1898, I resided with my-family and Bebecca Thompson at 202 A street, Southeast, Washington, District of Columbia. I was acquainted with Bebecca Thompson, deceased, from 1865 until the time of my coming over here in October, 1899. I think her death took place in 1905. My relations with her were of the closest character and practically all the time we were in the same house. My relations with her were always friendly and intimate. My family were always on intimate terms with her. I knew that Bebecca owned property. It was situated on O street, Northwest, near 16th street, in the city of Washington, District of Columbia. She acquired it, I think, in 1874. She paid, I think, $2,000 for it. She acquired the money from my father-in-law, Bobert J. Walker. The deed referred to (which was attached to the interrogatories and is the same deed which was offered in evidence at the trial and is hereinafter set forth) was in my possession until October, 1899. Previous to leaving America, I delivered it into the hands of my brother, S. Bayard Dod, because my brother had charge of my papers and business. I have never had possession of it since. I saw Bebecca Thompson last at the sisters on Capitol Hill in September, 1899. Bebecca could read and write, but with so much difficulty that she rarely did either. After parting with Bebecca I had many letters from her. I have never kept any of her letters. They were always written in someone’s else handwriting. It would then be impossible for me to give the dates of her letters, but she was in continuous correspondence with me until a few weeks before her death. The letters were of no importance, and in none of them did she ever refer to her property. Bebecca came into the family more than sixty years ago. She was given the money by my father-in-law, Bobert J. Walker, by which she became free. After so many years of affectionate intercourse she was more attached to us than to anyone else. Whatever money she had came to her from the Walkers.”</p> <p>The deposition of Alice D. Walker taken at the same time and place was then read in evidence, as follows: “My name is Alice D. Walker. I was born January 18th, 1870. I reside in Florence, Italy, with my mother, Mrs. Mary Dod Walker. Rebecca 'Thompson was a colored woman, lived in onr family at the time of my birth, and I do not remember the time that I did not know her. She continued to live with us when we moved from 5th street, Northwest, in Washington, District of Columbia, to No. 202 A street, Southeast, in that city. She remained in the family until her ill health made it necessary for her to leave us, in order that she might be eared for by the sisters. My relations with her and my family’s relations with her were most intimate and affectionate, and her position was more like a member of the family than a servant. I knew Rebecca owned a house on O street, Northwest, near 16th street, in the city of Washington, District of Columbia, and that the money with which she purchased it had been given her by the family. I have seen the deed which accompanies these interrogatories. I first saw the deed at No. 202 A street, Southeast, Washington, District of Columbia, September 13th, 1898, in the possession of Rebecca Thompson. I saw Rebecca Thompson sign and acknowledge the deed and place it in the hands of my mother. The deed remained in the hands of my mother until a few days before October 5th, 1899. My mother gave the deed into the keeping of my uncle, S. Bayard Dod, and, as far as I know, it has never been in her possession since that time. I saw Rebecca Thompson for the last time at the colored sisters on Capitol Hill in September, 1899. Rebecca Thompson could read and write, but with great difficulty. Rebecca Thompson did write to my mother continuously, and I always read her letters. As they were of no importance, they were always destroyed as soon as they were answered. I could not give the dates of her letters, but, so far as I can recollect, there was never any reference in' them to her property.”</p> <p>The answer to the thirteenth interrogatory propounded to this witness was excluded on objection of the defendants. No objection had been taken to this answer before the deposition was offered in evidence. The interrogatory and answer read as follows:</p> <p>Q. 13. “Do you know, or can you set forth, any other matter or thing, which may be of benefit or advantage to the parties at issue in this case, or either of them, or that may be material to the subject of tbis your examination, or tbe matters in question in this cause ? If yea; set forth tbe same fully and at length in your answer.</p> <p>A. In answer to this interrogatory, I would say that, even during the lifetime of her nearest relatives, her brother and bis family, Bebeeca used to often say that she wished my family to have her bouse on O street. She made a will some years ago leaving the bouse to my mother, for the reason that the money with which the property was purchased bad been obtained from our family; but, fearing there might be some trouble about that, she bad that will destroyed, and bad the deed drawn up conveying the property to my mother.”</p> <p>The deed before described was then read and received in evidence. S. Bayard Dod testified on behalf of plaintiff, by deposition, as follows: “My name is S. Bayard Dod, and my residence is South Orange, New Jersey, and I am president of the First National Bank of Hoboken. I am the brother of Mrs. Mary Dod Walker, the plaintiff in this suit. She is now in Florence, Italy, where she has been for six or seven years.” (Witness then identified the deed heretofore offered in evidence and hereinbefore set forth.) “The deed referred to was in my possession. When my sister left for Europe she banded me this deed with other papers to take care of for her. I retained possession of it until February, 1901, when I sent it to Rev. Mr. Clark, of Washington, District of Columbia.”</p> <p>On .cross-examination, the witness testified that “I sent the deed to Mr. Clark immediately after Bebeeca Thompson’s death, at my sister’s request. My sister was then in Europe. ' I beard of Bebeeca Thompson’s death from Mrs. Bobert J. Walker, the-wife of the brother of my sister’s husband. My instructions were not to place this deed on record until after Bebeeca Thompson’s death. During the time I held the deed, up to the time of Bebeeca Thompson’s death, I paid no taxes or insurance upon the property for my sister, nor did I collect the rents. During that time I was partly looking after my sister’s property in this country. I collected rents from a piece of property which she owns in Washington, District of Columbia. I know nothing about the deed in question except that my sister gave it to me with the request that I would record it as soon as I heard-of Rebecca Thompson’s death. I never examined the deed.”</p> <p>J. W. Clark, for plaintiff, testified as follows: “That he was the rector of St. James Episcopal Church, Washington, District of Columbia. That, a few days prior to February 29, 1904, the day of the recording of the deed aforesaid, as shown by the indorsement of the deed on the back thereof, he received the same from S. Bayard Dod, the brother of the plaintiff; that he, the witness, thereupon took the said deed to the office of the recorder of deeds in the District of Columbia, and there left it for record.</p> <p>Defendant Martina Irving was called by the plaintiff, and testified that she had occupied the premises as a tenant prior to 1898, and continuously since. That she paid rent to Rebecca Thompson at rate of $18 per month during her life, and after her death paid the same to defendant Warner. On cross-examination she said she had been in possession for about twenty years. That repairs had been paid out of the rent. Never paid any rent to Mrs. Walker. Never heard Rebecca Thompson say she no longer owned the property.</p> <p>Defendant Warner, called by plaintiff, testified to receipt of the rent since March 4, 1904, and that he made no claim to the premises other than as executor under the will of Rebecca Thompson.</p> <p>Plaintiff then offered to read the will of Rebecca Thompson for the sole purpose of showing that all the defendants claimed under Rebecca Thompson, who was the common source of title. The defendants objected to the will being read in evidence, but conceded the claim of common source; and the will was not read.</p> <p>On behalf of defendants, David Warner, one of defendants, testified as follows: That since 1895, at the request of Rebecca Thompson, he had collected the-rents, paid the taxes and the fire-insurance premiums on the property in question, and had turned over the balance of the rents to her until her death. Has since collected the rents and held them as her executor. Plaintiff has never made any demands upon him for the rents, and he had never collected any for her, nor paid any to her. Present tenants, the Irvings, have been in possession all the time he has had anything to do with the property. They had, on several occasions prior to Rebecca Thompson’s death, asked him to be allowed to make repairs, and, after asking Rebecca Thompson and getting her permission, he consented, and payments for snch repairs was deducted from the rent. Further testified that Mr. S. Bayard Dod had written to him on several occasions and requested him to forward the tax bills on certain property owned by Mrs. Walker in the southeastern section of the city, but that Mr. Dod had not on those occasions, nor at other times, requested him to get tax bills on the property in question.</p> <p>Upon the conclusion of this evidence, the plaintiff moved the court to direct a verdict for her, and excepted to the refusal of the court to so direct the jury.</p> <p>After charging the jury that plaintiff’s right to recover depended upon the execution and delivery to her of the deed by Rebecca Thompson, and that the delivery of a deed raises a presumption that it was with intent to pass title, the court proceeded to charge the jury to the effect that the question turned upon the intent of the grantor at the time of the delivery of the deed; and that this intent might be arrived at by the consideration of the conduct of the parties after the delivery of the deed, such as the failure to record the deed, and the actual possession and receipt of the revenues of the property by the grantor during her life. And that, if there was no intent to pass title at the time of the delivery of the deed, the plaintiff did not become the owner of the property. This charge will be recited hereafter. Plaintiff excepted to said charge, stating that, as the question left to the jury was whether Rebecca Thompson intended to deliver the deed as a title to the property and thereby to devest herself of the title, the only acts or conduct proper to be considered by the jury as tending to show such intent were the acts and conduct of Rebecca Thompson; and that it was error to instruct the jury that they might consider, as tending to show such intent, the acts or conduct of plaintiff after the delivery of the deed, such as her failure to record the deed, and permitting Rebecea Thompson to collect the rents, pay taxes, and make repairs.</p>

<p>Hearing on a motion to dismiss an appeal.</p> <p>The facts are stated in the opinion.</p>

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action for malicious prosecution, libel, and assault and battery.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, on a verdict directed by the court, in an action to recover damages for personal injuries.

<p>Objections and Exceptions; Appeals; Trial; Motion in Arrest; Criminal Law.</p> <p>1. An exception by tbe accused to tbe overruling of his motion to direct a verdict in his favor at the close of the prosecution’s case is waived by the introduction by him of evidence in his own behalf.</p> <p>2. Exceptions to portions of the trial court’s charge to the jury will not be considered where error is not assigned upon them.</p> <p>3. Where the record in a criminal case failed to show any action by the lower court on the defendant’s motion in arrest of judgment, but error was assigned by him and the case argued in this court as though the motion was overruled and exception reserved, the case was reviewed by this court as though such action was taken.</p> <p>4. After adverse verdict in a criminal prosecution, it is too late for the defendant, on a motion in arrest of judgment, to object to the validity of a count of the information on the ground that the defendant’s name was .omitted from a blank space provided in the printed form, where it appears that his name did appear elsewhere in the count, and it is clear the charge was against the defendant.</p> <p>5. Error in the admission of evidence does not afford proper ground for a motion in arrest of judgment.</p> <p>6. In cases of conviction of an infamous crime, the appellate court may sometimes inquire into the sufficiency of the evidence, and reverse a judgment of conviction on that ground; but it cannot pass upon its weight or credibility.</p> <p>7. The discretionary power which an appellate court has to review the question of the sufficiency of the evidence to justify a conviction in a criminal case, although the defendant failed to ask the trial court to direct a verdict of acquittal on that ground, will not be exercised except under extraordinary conditions; and not in a prosecution in the police court for making a bet on a horse race in which such conditions do not appeal.</p>

Hearing on an appeal by one of several property owners from an order of the Supreme Court of the District of Columbia confirming an award of a jury in condemnation proceedings.

Hearing on an appeal by property owners from a judgment of the Supreme Court of the District of Columbia, sitting as a District Court, confirming an award of a jury in condemnation proceedings, reassessing certain lands' for benefits resulting from the opening of a street. The facts are stated in the opinion.

<p>Easements; Abandonment; Injunction; Estopped.</p> <p>1. Mere neglect to enjoy an easement created by grant has no greater effect to extinguish the right of the grantee thereto, than to the freehold to which it is appurtenant.</p> <p>2. There is no way in which an easement created by grant can be extinguished by abandonment, — that is to say by nonuser, — unless there has been, in connection with acts inconsistent with the intent to use, sope acquiescence in its obstruction by another for a reasonable period aii least, or some representation that would work an estoppel.</p> <p>3. A bill in equity will not lie by a property owner whose house and lot adjoin an alley, to enjoin a neighbor from cutting a door in the wall of her house overlooking the alley, and for making use of the alley for ingress and egress, on the ground that, although the defendant had an easement by grant in the alley, she had abandoned it by nonuser, — especially where it appears that, when the complainant purchased her lot, she made no inquiry to ascertain if the defendant had really abandoned her right with no intention of exercising it in the future.</p>

<p>Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action by an administrator to recover damages for the death of bis decedent by reason of the alleged negligence of the defendant.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an action on the case, brought by appellant, William H. Conger, administrator of the estate of George Conger, deceased, in the supreme court of the District of Columbia to recover damages from the appellee, the Baltimore & Ohio Bail-road Company, for the death of his intestate, George Conger.</p> <p>It appears that, on the morning of June 25, 1906, the deceased, in company with one Welker, was crossing the tracks of the appellee on a highway crossing at Langdon, District of Columbia, when he was struck by the engine of a passing train belonging to appellee, and killed. On the morning in question Welker, who was a milk dealer, had engaged the services of the deceased to assist him in delivering milk. He used, for the purpose of delivering the milk, a single horse, attached to a covered wagon. At the time of the accident he was crossing the railroad tracks, and the deceased, a boy twelve years of age, was standing on the step at the rear end of the wagon. At the point where the road crossed the railroad there were four separate tracks, the outer tracks being sidings, and the two inside tracks constituting the main line of the road. Langdon is a station on the line of the Baltimore & Ohio Bailroad between Washington and Baltimore. There was a conflict in the evidence as to exactly what happened at the time, or just before, the accident occurred. Trains coming from Baltimore would pass this .point on the third track from the side toward which Welker was approaching. Welker testified that, as he approached the tracks, he stopped his horse and looked toward Baltimore and then toward Washington, and that he saw no train approaching. Seeing or hearing nothing, he started his horse on a walk across the tracks. When he had advanced to the second track, he discovered the approaching train but a short distance away, coming from the direction of Baltimore. He called to the boy to hold on, and struck his horse in an attempt to get out of the way. The train struck the rear end of the wagon, smashing the vehicle and killing the boy.</p> <p>There is evidence to the effect that the train was running at the rate of 60 miles an hour. The evidence also discloses that, approaching the crossing in a westerly direction, (the direction Welker was going,) there is a clump of trees and a bank, which hide appellee’s tracks and obstruct the view along the tracks, except for a short distance from the crossing. This obstruction continues until one approaching on the highway gets almost to the tracks, when the tracks, looking toward Baltimore, become visible for a distance of about % of a mile, where the road curves and emerges from a deep cut.</p> <p>Appellee had placed an electric bell at the crossing, which was so arranged that an approaching train, at a point a mile distant from the crossing, would operate a trip or spring that would start the bell ringing, and it would continue to ring until the train had passed. Welker testified that, when he approached the tracks, the bell was not ringing. In this he was corroborated by other witnesses. He also testified that the train did not whistle when it approached the crossing. Other witnesses, who were present, testified that they did not hear it whistle. Appellee attempted to establish that, at the time Welker approached the tracks, the electric bell was ringing, and that the train whistled at a sufficient distance from the crossing to give decedent notice of its approach. One Timberlake, a witness for the appellee, testified as follows: “I am agent for the B. & O. at Langdon, District of Columbia. I was at the station on the morning of June 25, 1906, at the time of the accident. I am block operator and agent. I received a report of this train as approaching from Alexandria junction, from the operator at that point. That is about 4 miles away from Langdon. I then watch for the approach of the train and when the engineer blows for the target I then pulled up the target lever which gives him a red, white, or green, whichever it may be. I gave him the clear signal, the white signal. The target is right in front of my window, but the semaphore is, of course, above the roof. The crossing is about 200 or 250 feet from the target and towards Baltimore. The engineer blew a long blast for the target, and I gave him a clear signal, and, after giving him the clear signal, he answered me by two short toots of the whistle. When the engine blew for the target he was five or six telegraph poles away. These poles are 15 feet apart. When he answered the target, why I would think he was about, — oh, he was only about one pole-length away from the crossing. When he blows for the target it only takes me a matter of a very short while to pull my lever, and as soon as he sees the paddle thrown down he answers. Those signals were given on this-morning. I saw this wagon when it was within 50 feet of the crossing. It came trotting up to the track, and I naturally supposed that he would stop before he crossed over, but, instead of that, he did not make any halt whatever. He trotted right up to the east-bound track, and, as the horse’s feet struck the east-bound track, it stopped trotting and went over walking; but in doing so he was crossing right in front of this train.”</p> <p>It will be observed that this witness fishes the distance of the train from the crossing, when the whistle blew first, at from 125 to 150 yards. On this point, he is corroborated by one Strider, the conductor in charge of the train, another witness for appellee, who testified as follows: “I was the conductor of the train that struck the wagon at Langdon on June 25, 1906. When we approached Langdon I was sitting in a dead-head parlor car which was coupled next to the engine. As we approached the crossing I heard the sound of a whistle in two different ways. He blowed for the road crossing, and he blowed for the target and answered it. As we passed the crossing, I saw this wagon lying on its side, and I jumped up and ran out to the rear end of the car and looked out. The engineer was then trying to stop. As soon as the train stopped I ran back, and found an officer and some men at the crossing. I found we had killed this little boy. When the signals were blown I supposed the train was 100 or 150 yards from the crossing; we had gotten around the curve and had just entered on the straight track in sight of the crossing. Don’t know how far the curve is from the crossing.”</p> <p>When appellant rested his case, counsel for appellee moved the court to instruct the jury to return a verdict for the appellee. This motion was denied. Appellee then introduced its evidence, and, when the evidence was all submitted, it renewed its motion, which was allowed by the court, and the jury accordingly returned a verdict for appellee. The court, in sustaining the motion of appellee, made the following statement: “It seems to me that there is no doubt about the question of fact that there was nothing the matter with this crossing bell, that it was not out of condition, — not ont of repair, — -and it rang on this occasion. I think that is as well established by the evidence as is the proposition that the whistle was blown, and that there cannot be any doubt about it; but, for the sake of the question, it may be conceded that there is a dispute upon the point of the ringing of the crossing bell which would entitle the plaintiff to go to the jury on that point, if the case turned on the finding as to that point. But I cannot bring- my mind to believe that the case stands upon that proposition. So in what I have to say in ruling in that regard it may be assumed that the crossing bell did not ring. I cannot conceive that the railroad company would be liable to the administrator of the child unless they had violated some duty they owed the child; in other words, unless they had been guilty of negligence towards the child, as distinguished from negligence towards Welker. It might well be that a railroad company is negligent concerning one individual and not negligent concerning another. If a railroad company puts a bell on a crossing and says to Welker: ‘Here, I will ring this bell every time you come across when a train is near,’ — it might be negligence not to do that when Welker came along; but it would not be negligence for the railroad company not to ring that particular crossing bell when a stranger came along who never saw that crossing, who did not know anything about the bell, and who had no reason to expect the existence of the bell. That is the case, so far as it concerns this child. There is no evidence in the case to show that he ever knew anything about the crossing, or ever went by the crossing before. So, with respect to the child, the duty the railroad company owed with regard to that crossing was to notify this child of the approach of the train. If they did that, they performed the duty that was upon them in respect to him, and that they did by blowing the whistle of the engine. Nobody can doubt that that whistle was blown, if they impartially determine the question. I am not at all disturbed, as I said several times, about the question whether the child was guilty of contributory negligence. That is a peculiar kind of a question. It never resolves itself into a question of law. It is always a question for the jury to say whether or not, under the circumstances of the case, the child exercised that degree of care and prudence that would and should be expected from a child of that age and intelligence and experience. So this ruling is based distinctly on the proposition that the child was not guilty of any contributory negligence, just as the ruling in the Barstow Case was. But, as I was saying, the ruling in the Barstow Case, to which counsel referred, tried in this court, was based entirely on the proposition that there was nothing in that case to show that the defendant was negligent there. That case went off upstairs on the proposition that was conceded down here, and that was that the child was not guilty of contributory negligence. So I want this record to show that it is taken for granted that this child was not guilty of contributory negligence, and that the ruling is based on the proposition that there is nothing which tends to show that the railroad company violated any duty it owed the child, or is guilty of any negligence respecting the child so that the administrator of the child has a right to recover against it. I cannot see any escape from that conclusion, gentlemen of the jury. You may return a verdict for the defendant.”</p> <p>From the judgment rendered, appellant prosecuted this appeal, with the following assignments of error:</p> <p>1. That the trial court erred in refusing to allow appellant to show the dangerous character of the crossing in question.</p> <p>2. That the trial court erred in refusing to allow appellant to show the happening of prior accidents at this public-road crossing.</p> <p>3. That the trial court erred in refusing to allow appellant to show that actual notice was directly given appellee of the electric signaling bell being out of order immediately before the Conger accident.</p> <p>4. That the trial court erred in refusing to allow appellant to show how generally defective and unreliable the electric signaling bell was as a means of warning a passer-by.</p> <p>5. That the trial court erred in directing a verdict for the defendant upon all the evidence.</p>

<p>Patents; Interference; Abandoned Experiment; Concealment.</p> <p>1. Where a machine for beating out shoe uppers, after being tested for a day at a shoe factory, was sent to a training school of a machinery company conducted by the assignee of the invention, where it was used for several weeks to beat out heel seats on shoes, and then thrown aside and not used for about three years, during which time a machine was experimented with designed to accomplish substantially the same results, and all the time a machine of the kind was urgently needed, it was held that what was done by the inventor and his assignee was in the nature of an abandoned experiment, and, in an interference proceeding, a later inventor was held entitled to an award of priority.</p> <p>2. Concealment and suppression of an invention by a senior party to an interference for a period of more than two years, during which time the junior party made the same invention and put the machine embodying it on the market, is sufficient to defeat the right of the senior party to an award of priority. (Following Matthes v. Burt, 24 App. D. C. 265.)</p>

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

<p>Patents; Claims and Specification; Interference; Amendment; Estoppel; Supplemental Oath; Appeals; Discretion.</p> <p>1. The drawing filed with an application for a patent as required by law, with the specifications, constitutes a part of the patent when issued.</p> <p>2. The language of the specifications of an original application for a patent and the drawings of the applicant, considered, and held, over f¡he objections of his opponent in an interference proceeding, to have so disclosed the invention of the issue as to have justified the Commissioner in allowing the applicant to amend.</p> <p>3. The question of whether a party to an interference was estopped to amend his application does not arise when the amendment was made before the other party filed his application. (Distinguishing McBerty v. Cook, 16 App. D. C. 133, and Luger v. Browning, 21 App. D. C. 201.)</p> <p>4. A supplemental or additional oath to an amended application is not. required where the amendment is within the scope of the original application. Such an oath need only be made where the applicant dies, and his administrator carries on the proceedings and amends the specifications by inserting new matter of which there has been no, previous suggestion.</p> <p>5. This court would not award priority to one of the parties to an interference because the other party was allowed to amend his application without a supplemental oath, even if such an oath were necessary; but, under circumstances, would reverse and remand the proceedings in order that such an oath might be made and the matter renewed.</p> <p>6. Where no substantial right of a party to an interference has been affected, this court will not undertake to review the exercise by the' Commissioner of Patents of the discretion imposed upon him of regulating the practice of the Patent Office. (Following Re Marshutz,. 13 App. D. C. 228, and Re Frasch, 20 App. D. C. 298.)</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 on a motion by the appellee to strike a bill of exceptions from the transcript of record and to affirm the judgment. The facts are stated in the opinion.

Hearing on an appeal by the plaintiffs from a judgment of the Supreme Court of the District of Columbia, on an agreed statement of facts, in an action on a contract for the payment of fees. The Court in the opinion stated the facts as follows: Appellants William W. Dudley and Louis T. Michener as plaintiffs below, sued to recover the sum of $10,000 and interest.

<p>Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia, on verdict, in an action on a policy of life insurance.</p> <p>Tbe Court in tbe opinion stated tbe facts as follows:</p> <p>This action was based upon a policy of insurance issued by appellant, the Prudential Insurance Company of America, a corporation, to Harriet Wassem5 by which appellant agreed to pay the appellee, Kathryn E. Lear, as beneficiary, $1,000 upon the death of the insured. The policy was issued June 2, 1906, and, by its terms, was to be incontestable after one year if all due premiums thereon bad been paid. It also contained a provision that, should the age of the insured be misstated, the amount payable under the policy should be adjusted in accordance with her correct age. The application, which was signed by tbe insured and attached to the policy, contained the following : “I hereby declare and warrant that I am in good health, and am and always have been of sober and temperate habits, that I have never had a serious illness or disease other than diseases incident to childhood, except as stated above, and there is no history of consumption or insanity in my family among parents, brothers, sisters, uncles, or aunts, except as stated above; and I further warrant that all the statements and answers to the above question are complete and true, and that the foregoing, together with these declarations, shall constitute the .application, and become a part of the application for insurance hereby applied for; and it is agreed that the policy herein applied for shall be accepted subject to the privileges and provisions therein contained, and said policy shall not take effect until the same shall be issued and delivered by the said company, and the first premium paid thereon in full, while my health is in the same condition as described in this application.”</p> <p>The defendant produced the physician who, a few days prior to the date of the issuance of the policy, examined Mrs. Wassem for the company. The witness testified that he then asked her questions concerning her health, and that she stated she was in good health and had not been “attended” by a physician, except about two years before an attack of malaria; that her answers were reduced to writing by him, and that she signed the paper containing them and the clause: “I hereby warrant that the answers to these questions are true, and agree that they shall form a part of the contract for insurance applied for.” The paper thereupon, without objection, was admitted in evidence. Witness further testified that, when he examined the insured, “she looked pretty fair,” but that, upon the next occasion when he saw her, — sometime about the middle of June,— she looked very feeble; that she was then “at her place of business at the National Museum.” On cross-examination, witness stated that when he examined the insured “she appeared in good health for one of her age.” She was then sixty-three.</p> <p>The defendant also called Dr. Edward B. Behrend, who testified that “he was first consulted by Mrs. Wassem on October 20, 1905, and that lie last saw her on August 29, 1906;” that lie saw her on an average of once a week until the last month, when he saw her more frequently. He was asked the question: “Was the patient in good health?” and answered: “No, sir.” Thereupon the witness was asked the following questions, all of which were excluded.</p> <p>“What was the nature of the ailment or disease with which she was suffering, if you know ?”</p> <p>“What was the nature of the disease which you found her suffering with, or the infirmity, on October 20th, when you went there ?”</p> <p>“Was she suffering during the time from October 20, 1905, to August 29, 1906, with the same trouble you found in October, 1905 ?”</p> <p>“Was the cause of her death the same trouble that you found on October 20, 1905 ?”</p> <p>Mattie Long, a trained nurse and a niece of the insured, was then called by the defendant, and testified that she cared for her aunt for about six weeks in November and December, 1905, and that her aunt then had pernicious anemia; “that she had been sick off and on for a year and a half prior to her death;” that witness had been a trained nurse since 1900. On cross-examination witness stated that her aunt had simple anemia in November and December, 1905.</p> <p>George S. Wainwright, appellant’s superintendent in the District of Columbia, testified that he visited Mrs. Wassem about the 15th of August, 1906, for the purpose of withdrawing the policy here in issue; that he informed her the company had received information to the effect that she had made misstatements as to the condition of her health at the time of making the application for insurance; that the insured gave him the name of her physician, and instructed him to see her physician and let her know what he said; that witness saw her physician, and, on August 23, 1906, again interviewed insured, who expressed a willingness to surrender her policy upon return of the amount of premium paid; that a search was made for the policy, but it could not be found; that the insured thereupon signed the following paper:</p> <p>Aug. 23, 1906.</p> <p>To the Prudential Insurance Co., Newark, N. J.</p> <p>Gentlemen:—</p> <p>I have learned that, in giving my answers to the application for insurance, I made some misstatements to the agent and examiner. Knowing this voids my policy, I am willing to accept a return of premium paid ($91.41) and return policy, relinquishing all claims under the same for myself and beneficiary, as soon as the policy which is now in the possession of my niece, who is out of the city, can be forwarded to me.</p> <p>(Signed) Insured, Harriet Wassem.</p> <p>Witness:</p> <p>Mrs. W. Avery.</p> <p>Witness:</p> <p>G. S. Wainwright.</p> <p>On cross-examination, witness testified that the insured, upon the occasion when she signed the release, was propped up in bed, but that she appeared conscious and seemed to know what she was about.</p> <p>Alva G. Avery, another niece of the insured, testified that she was present upon the occasion when her aunt signed the release, and read it over to her aunt, who voluntarily signed it.</p> <p>In rebuttal, plaintiff 'called Mary J. Hullins, another niece of the insured, who testified she was in the house on the 23d of August, 1906, when her aunt signed the release, and saw her aunt immediately afterwards, and that she was then prostrated and did not at first recognize witness, but presently asked who it was that had just left the room. Witness told her that it was Mr. Wainwright, and that her aunt asked “Who is he?” and witness told her. Whereupon insured asked witness what he wanted there, and witness told her that he had gotten her to sign a paper; that the insured stated that she did not sign any paper. Witness further testified that she had been sitting with her aunt every day, and that she had to be attended like a baby; that her illness commenced on July 28, 1906, and that she had worked up to that time; that she had kept boarders, had done her own work and the marketing, and her own washing, and had also worked at the museum; that her aunt was not ill in December, 1905; that she was then doing her work and also working at the museum a part of the time.</p> <p>Another niece, Martha D. Lear, who was in the house-the day the release was signed, gave testimony tending to corroborate the testimony of the last witness.</p> <p>Plaintiff also called Dr. J. R. Tubman in rebuttal, who testified “that simple amenia is a symptomatic disorder of the blood,” and is not a serious complaint; “that simple anemia follows most any disease; that the duration of pernicious anemia is from one to six months;” that, in his opinion, it would not have been possible for a person suffering from pernicious anemia on the 28th of May to work up to the 26th of July; that simple anemia is a very common disease, while pernicious anemia is a very rare disease.</p>

<p>Trademarks ; Rules of Patent Office.</p> <p>1. Where an applicant for registration of the words “Poplar Log,” or “Old Poplar Log,” as a trademark for whisky, has shown by his books and disinterested witnesses to have used them many years prior to their use by the opposer of his application, and to have originated the brand of whisky known by that name, selling it labeled or otherwise marked as such, quite extensively, his application is properly granted by the Commissioner.</p> <p>2. Rule 49 of the Patent Office requiring the question of whether there is interference in fact in a trademark case to be raised within a stated time before the Examiner of Interference, who in turn is directed to transmit the papers to the Examiners in Charge of Trademarks for his determination, was within the authority of the Commissioner of Patents to promulgate, and must be complied with; and this court will not entertain such a question at the instance of a defeated party in a trademark case, when he has not complied with the rule.</p>

Hearing on four appeals from decisions of the Commissioner of Patents in three separate interferences. The facts are stated in the opinion.

Hearing on an appeal from a decision of tbe Commissioner of Patents, rejecting three claims of an applicant for a patent. The facts are stated in the opinion.

<p>Patents; Interference; Rules of Patent Office; Claims; Conception; Amendment.</p> <p>1. In view of the rule of the Patent Office prohibiting a patent to issue for two separate inventions, where .the invention of the issue in an interference was disclosed in a prior application to one of the parties, but no specific claim was made therefor until after the issue of a patent to the other party, the claims cannot be inserted by amendment, but the applicant must file a new and divisional application, or abandon that part of his invention.</p> <p>2. Where the subject-matter of an invention is contained in the application for a patent, though not followed by a specific claim, the applicant may be allowed to amend by setting up a new claim to the invention, or a part thereof not before claimed, notwithstanding sec. 4888 U. S. Rev. Stat., U. S. Comp. Stat. 1901, p. 3383, which requires that the application shall not only contain a full description of the invention, but also claims for the same; and, where the conditions of the original application require division, instead of amendment merely, to secure a patent embracing the additional claims, the rule is the same (following Phillips v. Sensenich, ante, 159); and the new application will date back to the original one, securing to the applicant the benefit of a constructive reduction to practice as of that date. (Following Duryea v. Rice, 28 App. D. C. 423.)</p> <p>3. The failure of one of the parties to an interference to make a specific claim of the issue under his original application, or by division, until after the other party filed his application, will not preclude him from then making it by division, where the invention was disclosed, although not claimed, in the original application, and the making of the claim involved no material alteration in the specifications. (Distinguishing Bechman v. Wood, 15 App. D. C. 484, and following McBerty v. Cook, 16 App. D. C. 133; Luger v. Browning, 21 App. D. C. 201; and Furman v. Dean, 24 App. D. C. 277.)</p> <p>4. Testimony on behalf of one of the parties to an interference, the issue of which calls for a transparent device which temporarily arrests' the velocity of an air current in a dust sweeper, and enables the operator or observer to ascertain when the dust has been completely removed, — that he had invented and constructed a three-compartment box with removable glass sides, through which the collection of the dust therein could be observed, does not show conception of the invention of the issue, which requires not only a transparent device, but one of such size and construction that it will not permit deposit of any of the dust; otherwise it will not answer the required purposes.</p>

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

■Hearing on appeals by both parties from a decision of the Commissioner of Patents in an interference case, in which there were several issues, awarding priority to one of the parties as to certain of the issues and to other party as to the other issues. The facts are stated in the opinion.

Hearing oil an appeal from a decision of the Commissioner of Patents in a trademark interference case. Tbe facts are stated in tbe opinion.

<p>Bills of Exception; Rules of Court.</p> <p>1. It will be presumed, in the absence of anything showing to the contrary that a bill of exceptions was submitted on proper notice to opposing counsel, as required by rule 55 of the lower court.</p> <p>2. A bill of exceptions submitted to the trial justice within the time prescribed by the rule of court may be retained by the justice for a time necessary to enable him to determine its correctness, and his approval and settlement of it may then be entered nunc pro tune.</p> <p>3. Where the trial justice to whom was submitted a bill of exceptions within the period prescribed by rule of court signed it after the expiration of such period as of the date of signing it, instead of as of the date of its submission, it was held to have been a mere inadvertence; and a motion to dismiss the appeal on the ground that the bill was settled after the time within which it could be done under the rule was denied.</p>

<p>Garfield v. United States, 30 App. D. C. 177, applied and followed.</p>

Hearing oil an appeal by the respondent from an order of the Supreme Court of the District of Columbia directing the issuance of the writ of mandamus to the Secretary of the Interior commanding him to restore the names of the relators to the roll of members or citizenship of the Chickasaw Tribe or Nation

Hearing on an appeal by tbe respondent from an order of tbe Supreme Court of tbe District of Columbia directing tbe issuance of tbe writ of mandamus to tbe Secretary of tbe Interior commanding bim to restore tbe names of tbe relators to tbe roll of members or citizenship of tbe Chickasaw Tribe or Nation.

<p>Hearing on an appeal by the respondent from an order of the Supreme Court of the District of Columbia directing the issuance of the writ of mandamus to the Secretary of the Interior commanding him to restore the name of the relator to the rolls of members or citizenship of the Chickasaw Tribe or Nation.</p>

<p>PATENTS; INTEBFEBENCE; OBIGINALITY; PBESUMPTIONS; CONCEPTION AND Deduction to Pbactice.</p> <p>1. The burden of proof is upon the junior party to an interference, and his own testimony is not sufficient to establish conception and disclosure.</p> <p>2. Where the question in an interference is one of originality, and it appears that a model illustrating the invention of the issue was made by workmen under the directions of the senior party, the superintendent of a factory established with the means of the junior party, the junior party must overcome the presumption in favor of the senior party, by showing that the latter was merely carrying out instructions previously given to him.</p> <p>3. Where, in an interference involving the invention of an improvement in pulleys, the question was one of originality, a decision of the Commissioner of Patents was reversed, and priority awarded the senior party, although all of the tribunals of the Patent Office concurred in the award of priority to the junior party, where it appeared, among other things, that, while the junior party was a manufacturer of experience, he had no particular knowledge of pulley construction, while the senior party was a mechanic and former inventor of pulleys; that the senior party had previously made a- pulley with solid arms, which was one of the features of the invention in issue, although it did not contain all of its elements; that a factory for the manufacture of pulleys had been established with money furnished by the junior party, of which the senior party was superintendent; that the model of the pulley in question was made at the factory under the supervision of the senior party; that the junior party caused a third party to file an application for a patent for the invention, which application, upon its being put in interference with that of the senior party, was abandoned, and the explanation of the junior party as to why such application was filed was that he was ignorant of the law and supposed that the mechanic who constructed the device was the one entitled to the patent for his invention; and that the other facts reviewed tended to support the claim of the senior party that the pulley was made in the factory in question prior to the date of conception alleged by the junior party.</p>

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

<p>Patents; Interference; Evidence; Claims.</p> <p>1. The uncorroborated testimony of the junior party to an interference is insufficient to overcome the presumption attaching to the prior filing date of the senior party.</p> <p>2. A decision of the Commissioner of Patents in an interference, involving the invention of a toe calk for horseshoes, in which he held that “the terms of the claim, when given their ordinary meaning, clearly read upon the structure of both parties,” was affirmed.</p>

<p>Hearing on an appeal by the defendant from a judgment of tbe Supreme Court of the District of Columbia, on verdict, in an action against the District of Columbia, to recover damages alleged to have resulted from the change of the grade of a street and alley.</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 a patent. The facts are stated in the opinion.

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

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

<p>Hearing’ on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, on a verdict for nominal damages, in an action of libel.</p> <p>The facts are stated in the opinion.</p>

<p>Patents; Interference; Burden of Proof; Priority of Invention.</p> <p>1. The burden is on the junior party to an interference, to remove the presumption of prior invention that always attaches in favor of the senior party; and this presumption cannot be overcome by the uncorroborated evidence of the junior party.</p> <p>2. A decision of the Commissioner of Patents in favor of the senior party to an interference, involving the invention of an improvement in automatic pianos, was affirmed, upon a review of the evidence which showed, among other things, that the testimony of the junior party that he had made a sketch of the invention prior to a constructive reduction to practice by the senior party was uncorroborated; that the device made and exhibited by the junior party was only an illustrative model, and not an actual reduction to practice, and there was doubt whether it contained the mechanism called for by the issue; that the date of the construction of another device exhibited by him was not proven with sufficient clearness;, that the sale by him of a piano, claimed to embody the elements of the issue, was attempted to be established by the entries in a book, without calling upon the person keeping the book to identify the entries, nor was the construction of the piano sufficiently shown; that the construction of another piano, also claimed to embody the invention, and which it was attempted to show had been bought by the senior party’s assignee before the date of conception by the senior party, was not sufficiently established; and that á contention by the junior party that his application was made from a full-sized operative machine shipped to his attorneys, before the filing date of his adversary, was not supported by evidence that the attorneys received the machine, or that the applicant’s drawings were made from it.</p>

<p>Patents; Interference; Diligence.</p> <p>While every presumption will be resolved in favor of an inventor who delays filing his application until he has perfected his invention, a delay of ten years by a party after he has conceived his invention, during which time he was active in experimenting with other forms of inventions, took out several patents, and expended thousands of dollars in exploiting his inventions, constitutes such want of diligence as will preclude an award of priority to him, as against a rival who has in the meantime entered the field and filed an application.</p>

<p>Patents; Interference; Appeals; Division; Abandonment.</p> <p>1. A contention by a party to an interference, made for the first time in this court, that the other party’s application does not disclose the invention of the issue, comes too late, in view of rule 122 of the Patent Office.</p> <p>2. Where, before an interference was declared, a patent was granted to the junior party while a divisional application of the senior party was pending, the Patent Office properly imposed the burden of proof upon the junior party by notifying him that, inasmuch as his filing date was subsequent to that of the senior party, judgment would be given on the record against him, unless he should show cause why such action should not be taken. (Distinguishing Christensen v. Noyes, 15 App. D. C. 94.)</p> <p>3. The inadvertence of the Patent Office in granting s. patent to the applicant who filed last, without declaring an interference between his application and a divisional application of the party who filed first, and the action of the office in erroneously declining to declare an interference between the patent and the divisional application, will not constitute a bar to the renewal of such divisional application, and prevent an interference being then declared between the patent and the renewed application; and, if such renewed application is filed before the expiration of the two years within which renewal application may be filed under see. 4897, U. S. Rev. Stat., U. S. Comp. Stat. 1901, p. 3386, and there is no evidence of the intention of the applicant to abandon the invention, but, on the contrary, it appears that he has availed himself of the first opportunity to obtain an interference with the other party, it will not be held that his delay in renewing his application worked an abandonment of it. (Citing Cain v. Park, 14 App. D. C, 42, and Duryea v. Rice, 28 App. D. C. 423.)</p> <p>4. Quaere, whether it is within the power of the Commissioner of Patents, when he entertains a doubt as to whether there has been an abandonment, to require an explanation of the delay in filing a renewal application.</p>

<p>Trademarks; Reopening of Case; Abuse of Discretion.</p> <p>1. To permit one manufacturer to use upon his gas and gasolene stoves a mark upon which another manufacturer has built up a trade in coal and wood stoves would lead to mistakes and confuse purchasers; accordingly the registration of the word “Jewel,” as applied to gasolene stoves, will not be permitted where prior use by another company of the same word as applied to coal and wood stoves is shown.</p> <p>2. The reopening of a case for the introduction of newly discovered evidence is always a matter for the trial court, and in its discretion. (Following Richards v. Meissner, 24 App. D. C. 309.)</p> <p>3. There is no abuse of discretion on the part of the Commissioner of Patents in the overruling of a motion by a party to a trademark interference case, to reopen the case for the purpose of taking newly discovered evidence, where the motion was not made until after a finding adverse to such party had been made by the Examiner of Interferences, and the affidavits in support of the motion failed to show that the alleged newly discovered evidence could not have been discovered during the time fixed for taking testimony by the use of ordinary diligence.</p> <p>4. The practice of counsel in patent cases in asking leading and suggestive questions, noted, and adversely commented upon, and the statement made that, where timely objection is made on the record, the court will be disposed to apply the rule against such question, and entirely disregard such testimony.</p> <p>5. The testimony in a trademark interference case involving the right to register the word “Jewel,” as applied to stoves, reviewed, and a decision of the Commissioner of Patents affirmed, where it appeared that the appellee company had used the mark since 1874, since which time the company had given it wide publicity, its sales of stoves amounting to $2,000,000 a year, and that the word was known to the trade even better than the name of the company, while the claim of the appellant company that it had used the name on its stoves prior to that time was supported by two witnesses whose testimony was given in response to leading and improper questions, and failed to show with precision how many stoves were manufactured and when they were placed on the market, and where the books of the ap-' pellant were not produced; and where it also appeared that the appellant, prior to the controversy, disclaimed in the Patent Office the word “Jewel,” its president stating under oath that the words “Bay State” were and had been the trademark of the company since 1848.</p>

<p>Hearing on an appeal by the relator from an order of the Supreme Court of the District of Columbia dismissing her petition for mandamus.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>Appellant, Mary E. Nalle, relator below, filed her petition in the supreme court of the District of Columbia praying that a writ of mandamus issue to the respondents, William D. Hoover, Richard R. Horner, John E. Cook, William V. Cox, Barton W. Evermann, Justina R. Hill, Ellen Spencer Mussey, James F. Oyster, and Mary C. Terrell, requiring them to reinstate her to the position of a teacher in the public schools of the District. It appears that relator had, for many years prior to September, 1906, been a teacher in the public schools of the District of Columbia. The respondents constitute the board of education of the District, duly appointed as such under the provisions of an act of Congress approved June 20, 1906. At a meeting of the said board, held in September, 1906, respondents had under consideration the general qualifications of the teachers ’of the District. Upon the written recommendation of the superintendent of schools, the relator, at a meeting of the board held on September 14, 1906, was dismissed from the service as a teacher.</p> <p>Relator, in her petition, alleged, in substance, that she had been a teacher in the public schools of the District of Columbia since 1813; that she had been informed by the superintendent of schools, on September 13, 1906, that he had nominated her to the board for a position on the teaching force of the District, but that he was informed that the board would not indorse his recommendation. She alleged that, two days later, she was informed by the secretary of the board that “she had been dismissed from the public schools of the District of Columbia for the good of the service.” She further alleged that she requested the board to present her with a copy of the charges against her, and that she be given a hearing and an opportunity to refute the same; that, in answer thereto, she was notified that her request had been laid on the table. Relator then averred that the action of the hoard of education in dismissing her was null and void, and that the same was done contrary to the recommendation of the superintendent of schools, as provided for by sec. 2 of the act of Congress of June 20, 1906, and in direct violation of, and contrary to, the letter and spirit of sec. 10 of said act, and that, notwithstanding the action of said board, she is of right, and in law, a teacher in the public schools of the District of Columbia, and, as such, entitled to all the rights, dignities, privileges, and emoluments of that position.</p> <p>In answer to the petition, respondents alleged, in substance, that, at the time they assumed their duties as a board of education, they found a large number of teachers, including the relator, who had been employed by the previous board of education-; that respondents, acting as a board, began to provide the schools with teachers for the fiscal year ending June 30, 1907; that, in so doing, they continued in the service those of the teachers then employed who were competent and qualified to teach, but that, upon examination, the relator was found not sufficiently qualified in all respects to be. competent to continue in the service, “but was deficient in the necessary academic and pedagogic equipment of a competent teacher;” that, at a meeting of the board on September 14, 1906, when the said board was dealing with the appointment and continuance of the teachers, upon the recommendation of the superintendent, the relator was dismissed by the vote of the board; that no charge or accusation of any kind was filed with the respondents against the relator, and, accordingly, said relator was not dismissed because of any charge or any accusation against her; that the relator was never charged with an offense, or accused, so as to be put upon trial, or to be under investigation, within the meaning of see. 10 of the act of June 20, 1906.</p> <p>To this answer, the relator demurred. Upon hearing, the demurrer was overruled, and leave granted by the court to file a traverse to respondents’ answer. The traverse raised two issues of fact, as set forth in the brief of relator: “First, that the relator was dismissed solely because she was deficient in the necessary academic and -pedagogic equipment of a competent teacher; and, second, that there was not filed with the board any charge or accusation against relator, and she was not dismissed because of any accusation or charge filed against her.” Upon motion of respondents, the court struck out all of the several grounds of traverse that raised an issue as to whether any charges were filed against relator, and narrowed the submission of proof to the one question, — 'whether she was dismissed solely because, upon examination, she was found to be deficient in the necessary academic and pedagogic equipment of a competent teacher.</p> <p>Upon this issue, relator offered as a witness a member of the board of education, who testified that no examination was ever made by the board as to the qualifications of relator. 'Relator then exhibited and offered in evidence several letters from Dr. Chancellor, superintendent of schools, which, it was insisted, tended to show that there was no question.as to relator’s fitness for her position, in the sense of being in every way qualified, both mentally and physically, and that such questions were never discussed by the board in considering her case, and that her dismissal was not recommended by him upon that ground. Upon objection of respondents’ counsel, the court refused to consider said letters. Relator then called Dr. Chancellor as a witness, who testified that “he attended all meetings of the board of education in September, 1906, was present at the meeting held by the board of education September 14, 1906, when Miss Nalle was dismissed; recalled no discussion at that meeting of Miss Nalle’s qualifications, academic or pedagogic. He further testified that at a meeting a few days before the 14th, at which he remembers all of the members were present, her fitness for the public schools was discussed, — that they did not discuss this feature, -or that and the other, but they did discuss generally relator’s fitness for continuation in the service, and that he knows that it was the concensus of opinion, or, in other words, he understood that it was the opinion of the board, or of substantially the entire board, that she ought to be dismissed from the service because she was not qualified to continue as a teacher; and witness wholly understood that members of the board at that conference were talking as members of the board; whereupon he made his written recommendation that she be dismissed for the good of the service, and the board acted upon that.” Upon this evidence, relator rested her case. Counsel for respondents moved for judgment on the ground that the evidence showed that relator had been dismissed by authority of law, which motion was sustained and judgment entered by the court. From this judgment, relator prosecuted this appeal.</p>

Hearing on an appeal by the respondents, the Commissioners of the District of Columbia, from a judgment of the Supreme Court of the District of Columbia, directing the writ of mandamus to issue against them. Tbe facts are stated in tbe opinion.

<p>Statute; Physicians.</p> <p>1. In construing a statute, courts are not always confined to a literal reading of it, but may consider its objects and purposes, the acts with which it is dealing, and the condition of affairs which led to its enactment.</p> <p>2. While penal statutes are to be strictly construed, they will be interpreted according to the manifest import of the language employed and the evils sought to be overcome; and they will not be so construed as to defeat the obvious intent of the legislature.</p> <p>3. Under the act of Congress of February 1, 1907 (34 Stat. at L. 870, chap. 442), to regulate the practice of veterinary medicine in this District, and requiring anyone desiring to so practise to apply for a license, and providing that a record shall be kept by the board of examiners thereby created, showing whether a license has been issued as a result of any application to practise, and that no one shall practise, or hold himself out as practising, veterinary medicine without conspicuously displaying such a license in his office, — any person who engages in such practice without a license is guilty of a violation of the act, although the act itself does not in express terms prohibit such practice.</p>

<p>Pleading; Mandamus; Discretion; Indians.</p> <p>1. Facts alleged in an answer or return upon information and belief are sufficient to raise questions of law and fact; and, therefore, although allegations of fraud contained in the answer to a petition for the writ of mandamus are made upon information and belief, and the answer is so verified, a demurrer to the answer will be construed as an admission of the allegations of fraud, where the fraud is alleged with sufficient particularity.</p> <p>2. The writ of mandamus is not a writ of right, but will issue only in the exercise of the sound discretion of the court; and the relator will not be entitled to the writ if he does not come into court with clean hands, or where it is sought by the proceedings to perpetrate a fraud.</p> <p>3. Before the writ of mandamus will issue to compel the performance of an act, it must appear that the respondent has the power and authority to perform the act sought to be enforced.</p> <p>4. The court will restrain by injunction the performance of an unlawful act, or command by writ of mandamus the performance of a lawful act; but it will not restrain the performance of a lawful act, or command the performance of an unlawful act.</p> <p>5. An order of the lower court directing that the writ of mandamus to issue against the Secretary of the Interior commanding him to restore the relators to the rolls of citizenship of the Creek Nation, reversed, where the order was entered on a demurrer to the answer, and the answer on information and belief charged fraud on the part of the relators in procuring their enrolment, which enrolment was subsequently canceled by the striking of the relators’ names from the rolls.</p>

Hearing on an appeal by the respondent, tbe Secretary of tbe Interior, from an order of tbe Supreme Court of tbe District of Columbia directing that tbe writ of mandamus issue to bim commanding bim to deliver a patent of public land to tbe relator.

Hearing on an appeal by defendant from a judgment, on verdict, of the Supreme Court of the District of Columbia in an action for goods sold and delivered. Affirmed. The Court in the opinion stated the facts as follows: This case comes here on appeal from a judgment rendered in the supreme court of the District of Columbia against appellant, J. Paul Smith, defendant below, on the verdict of a jury in favor of appellee, Samuel Ross, trading as Barber & Ross, for $5,-586.07.

Hearing on an appeal by the caveatee from an order of the Supreme Court of the District of Columbia, denying the probate of a will after a 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 J. Howard Larcoinbe, who died December 12, 1906, leaving surviving him one daughter, Mrs. Mary Z. L. Higgins, as his only heir at law and next of kin.

<p>Hearing on an appeal by tbe defendant from a judgment, on verdict, of the Supreme Court of the District of Columbia in an action by real-estate brokers to recover their commissions on a sale of land.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>The appellees, Andrew D. Loffler and Thomas E. Jarrell, as plaintiffs below, brought this action against the appellant, Hugh Harten, to recover the sum of $300 for services rendered in obtaining a purchaser for certain real estate in the District of Columbia.</p> <p>The allegations were that defendant was the owner, on April 1, 1905, of certain land with improvements thereon, which he wished to sell. That he employed plaintiffs, who were real-estate brokers, to find a purchaser. That, on April 27, 1905, they found a purchaser, at the agreed price of $12,000, with whom the defendant entered into an agreement for the conveyance of said premises for said sum, which he afterwards refused to perform. That, in consideration of their services, defendant agreed with and promised plaintiffs to pay them the said sum of $300, which he has failed and refused to do. The declaration concluded with the common counts for money payable, for services rendered, etc.</p> <p>The defendant filed pleas denying the promise, and indebtedness as alleged, on which issue was joined. Judgment for plaintiffs was entered June 21, 1906.</p> <p>At that time an action brought by the purchaser for breach of the said contract against Harten was pending, and some questions involved therein were injected into this proceeding. So far as those are concerned, they were settled by the judgment for plaintiff therein, which was affirmed May 7, 1907. Harten v. Loffler, 29 App. D. C. 490.</p> <p>The testimony of the plaintiffs tended to show that a contract was entered into between Harten and Ernst Loffler, on April 27, 1905, whereby the former agreed, for a consideration of $12,-000, of which $250 were deposited, to convey to the latter the premises on Brightwood avenue and to transfer his license. He also agreed to use his efforts to secure signers for the transfer of said license to Loffler. It was this agreement which Harten refused to perform, and the breach of which was the subject-matter of the case above referred to.</p> <p>One of the plaintiffs, Andrew D. Loffler, after proving partnership with Jarrell in the real-estate business, testified substantially as follows: That, about February 22,1905, he went to see Harten and told him that he was in the real-estate business and had heard his place was for sale; told him he could probably find a purchaser. He said: “If I could get a purchaser for $12,000 he would sell. I knew that Ernst Loffler wanted to get a place on the Brightwood road; he had told me he wanted a place for a home and a barroom business. Told him he could get Harten’s place for $12,000, and he told me to offer Harten $11,000. So I offered Harten $11,000 which he refused. We finally came to an agreement that Loffler would take it for $12,-000. Saw Harten with reference to this sale between February 22 and April 27, 1905, about three times a week. I made him an offer for E. Loffler of $11,000. The purpose of my visits to him was to get the property for that price, and I kept on going to see him. When E. Loffler was satisfied to take the place, I told Harten I could get a buyer, and that included a commission of 3 per cent. He said, ‘That is too much,’ I said: ‘Will you be satisfied to give me $300?’ He said: ‘Yes, I will pay yon for all your trouble.’ ” Other testimony of the witness relating to the description of the property intended to be conveyed, it is unnecessary to recite for the reason that it is rendered irrelevant by the decision in Harten v. Loffler, supra.</p> <p>On cross-examination, he said that the reason he went out to see Harten was that lie bad beard bis place was for sale, and be knew that E. Loffler wanted to buy one on that road. “E. Loffler was one of those who told me the place was for sale. He came to me about two months-before I saw Harten, and said: ‘You are in the real-estate business; if you can get that place I will buy it through you.’ He spoke to me again before I went to see Harten. He said I should find out if Harten’s place was for sale and what be wanted for it. I said I would do it. He said be would buy it. I bad no talk with him about my commission. I could not charge the man that bought the property a commission; I never did. The man that sells the property generally pays the commission.” (This was objected to as not responsive to the question asked, and the same was asked to be stricken out. The refusal to do this was excepted to.) “When Harten asked me, on. my first visit, for whom I wanted the place, I said, ‘Never mind, I will tell you later on.’ The reason for this is that, if a man has a customer for a piece of real estate, I do not chink be would tell the man who the customer is; be would not need an agent then; be would sell it without an agent. Two or three weeks afterwards, I told him who the purchaser was, saying, ‘Now that you are satisfied to pay me my commission, I will take the man out and show him the property.’ That was the day before I took Loffler out. When Richards was writing the agreement and before it was signed I said be ought to put in it, ‘subject to 3 per cent commission,’ He said, ‘Never mind, that is all right.’ I do not think be said be bad nothing to do with the commission, but will not say positively that be did not say so. I told him $300 would be satisfactory, and be said: ‘All right; I will pay you for your trouble. My word is my bond.’ It is a fact that I went out there for the sole purpose of getting this business and this place for Ernst Loffler. He was the customer I bad for the place. Loffler told me to offer $11,-000 for it. I told Harten I bad an offer of $11,000 for it, and be said $12,000 was the lowest be would take for it. I did not tell him who made that offer. The necessity for so many visits to Harten was because I was trying to get it for $11,000. Mr. Loffler told me be would not want to pay more than that amount, and I was trying to get it for that. I told Harten I had an offer of $11,000 for it. He always refused that. I was interested both ways; I was trying to get it as cheap as I could for Mr. Loffler, and I was trying to get all I could for Mr. Harten.” He further testified that Harten offered him $100 to get him out of the trade. “He said, ‘Loffler, how can I get out of this ?’ I said, ‘The only way to get out is to turn the property over to Mr. Loffler. You are getting a fair price for it.’ He threw a check book down on the table and said: ‘You can get me out of it.’ I told him it would not be right; it would not be business. I spoke up for Mr. Loffler. I said he had his deposit up, and he had bought the place, and his place was sold in Georgetown and that put him out of the whole thing, and the man ought to have the place.”</p> <p>Ernst Loffler, called by the plaintiffs, testified to the purchase, attempt to perfect the same, etc. On cross-examination he said that he had spoken to Andrew Loffler about getting a little place in the country, and he came and said he had found a place, but did not tell him at first it was Harten’s. Was probably a month before the contract was signed that he had told witness it was Harten’s place. “He spoke to me about Harten’s place before I spoke to him about it. The first I heard about Harten wanting to sell was from Hood or Burkart. I then had a conversation with Bichards about it, and after that I went to Andy Loffler and sent him to negotiate with Harten about a month before the agreement was signed. I never had any conversation with Andy Loffler about Harten’s place before that time. Mr. Loffler told me about the property first. In my suit in this court against Harten, for breach of that agreement, I think I testified that, after Bichards told me Harten’s property was for sale, I went to Andrew Loffler and sent him to negotiate with Harten, and also testified that I told Harten that I wanted the business.”</p> <p>The testimony on behalf of Harten was chiefly directed to the limits of the property actually offered for sale, which was not described in the contract. In regard to the actual matter in controversy, he said that Andrew Loffler came to him and wanted to know if he would sell him the property for the same price he had offered it for to Burkart. Said he would if the engagement with Burkart failed. He said he was in the real-estate business, and was not buying for himself, but for a friend.. When asked the name of his friend, he said: “I will tell you later.” I said if it is for Ernst Loffler, I will not sell to him at any price. After the deal with Burkart was off, he called again, and was told he could have it for the price named, and when asked the name of his client, said: “I will tell you in due time.” About a month later he brought Ernst Loffler out. The first conversation about a commission was after Andrew Loffler had got part of the signers for a transfer of the license. He said: “Who is going to pay me my commission ?” That was after the contract was signed. I said: “Whoever employed you. I haven’a got anything to do with it. I am selling my place independent of everything. I have no lawyer and am selling it on my own responsibility.” He said: “Cannot you pay part ?” I said: “So far as commissions are concerned, I will pay nothing. You are not entitled to anything. You are buying the place for another party. If I came down and engaged you to sell my place, I would be entitled to pay commissions then.” He said: “Well, somebody will have to pay me.” I said: “Whoever employed you will have to pay you.” He also denied the statement of Andrew* Loffler that he had produced his check book and offered him $100 to get him out of the contract.</p> <p>The defendant asked the court to instruct the jury to return a verdict for him on the ground that the evidence showed that plaintiff was employed in the transaction by Ernst Loffler, and not by the defendant, as well as claiming commission upon a sale that was never made. This the court refused, and defend and excepted. The court thereafter charged the jury that whether defendant employed plaintiff to effect the sale was a question of fact for them to settle; that the burden was upon the plaintiffs to show that they were employed by Harten to sell the property, and that they sold the same pursuant to said employment; in other words, that the sale was effected by plaintiffs as the duly authorized agents of defendant, for the particular purpose of selling this property. And second to show that he had a contract for a commission of $300. The greater portion of the charge was directed to the controversy between the defendant and the purchaser as to the boundaries of the property contracted to be sold, about which the agreement was uncertain. In conclusion, he charged that, if the plaintiff was employed to sell the whole of defendant’s property, and he did sell it, the duty of the jury was to return a verdict for plaintiff for the full amount of $300. This charge was excepted to.</p>

<p>Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia, on verdict, in an action to recover damages for personal injuries.</p> <p>Tbe facts are stated in tbe opinion.</p>

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia on a verdict for the defendant, 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 appeal from a decision of the supreme court of the District directing a verdict for the defendant below, the Philadelphia, Baltimore, & Washington Railroad Company.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, on a verdict directed by the court, in an action against the last indorser of a check. The Court in the opinion stated the facts as follows: The declaration of the Central National Bank alleged that, on March 17, 1905, one Wharton E. Lester, by his check, directed plaintiff, as his banker, to pay to the order of Mrs. A. E. McKnight the sum of $1,949.75.

<p>Executors and Administrators; Garnishment.</p> <p>1. The only condition precedent to. the. making by the administrator of a distribution of the proceeds of the estate of his decedent is that the legal debts against the estate shall have first been paid; and he can legally distribute the assets without an order of the court directing such distribution.</p> <p>2. An administrator who has in his hands money resulting from a suit by him for damages against a railroad company for the alleged negligent killing of his w'ife may pay it over to himself, as the sole distributee, without obtaining an order of the probate court to do so; and, having done so, there are no funds in his hands, in fact or in contemplation of law, subject to attachment or garnishment on a judgment against him individually."</p>

<p>Landlord and Tenant; Mechanics’ Liens.</p> <p>A provision in a lease giving the lessee the right to make improvements in a leased building, and providing that, if made, their cost, not to exceed a certain sum, may be deducted from the rent, does not convert the lease into a building contract, so as to make the lessee the agent of the lessor and the property liable under the mechanics’ lien law, for work and material furnished the lessee and going into the improvement of the building made by him, although the value of property may be materially enhanced by such improvements. (Construing sees. 1 and 4 of the act of Congress of July 2, 1884 [23 Stat at L. 64, chap. 143], relating to mechanics’ liens, and citing Albaugh v. Litho-Marble Decorating Co. 14 App. D. C. 113.)</p>

Hearing on an appeal by the complainants from a decree of the Supreme Court of the District of Columbia sustaining a demurrer to and dismissing a bill for an injunction against the members of the Civil Service Commission of the United States. The facts are stated in the opinion.

Hearing on an appeal by tbe plaintiff from a judgment of tbe Supreme Court of the District of Columbia on a verdict directed by the court in an action 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, entered after a motion for judgment for want of sufficient affidavit of defense had been granted, in an action on a promissory note. The Court in the opinion stated the facts as follows: This action was brought by Garfield A Street against William A. Richards to recover the sum of $400 on a promissory note for that amount.

Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia granting the relief prayed for in a bill for the release of a deed of trust and for an accounting. The Court in the opinion stated the facts as follows: This is an appeal from a decree of the supreme court of the District of Columbia granting complainants, Carrie Pifer and John W. Pifer, appellees here, an accounting, and release from a bond and a deed of trust.

Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia granting the relief prayed for in a bill for the release of a deed of trust and for an accounting.

Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia granting the relief prayed for in a bill for the release of a deed of trust and for an accounting. '

Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia granting the relief prayed for in a bill for the release of a deed of trust and for an accounting.

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

Hearing on an appeal by one of several respondents to a petition for the assessment of benefits in condemnation proceedings, from an order of the Supreme Court of the District of Columbia, sitting as a District Court, confirming a verdict of the jury. The Court in the opinion stated the facts as follows: This cause arises from proceedings for the condemnation of land in the city of Washington for the purpose of extending Eleventh street, Northwest.

Hearing on an appeal by the defendants from a decree of the Supreme Court of the District of Columbia in a suit in equity by a trustee, seeking to be relieved of its trust, and asking for instructions of the court.

Hearing on an appeal, specially allowed, from an order of the Supreme Court of the District of Columbia overruling a motion to vacate a service of summons. The facts are stated in the opinion.

Hearing on an appeal, specially allowed, from an order of the Supreme Court of the District of Columbia sustaining a demurrer to certain counts of a declaration filed by the appellee to recover damages for personal injuries. The Court in the opinion stated the facts as follows: 1. The question involved in this appeal is the constitutionality of the act of Congress approved June 11, 1906, commonly known as the “employers’ liability act,” as applied to the District of Columbia.

Hearing on an appeal, specially allowed, from an order of the Supreme Court of the District of Columbia, overruling a demurrer to a declaration on a bond.

Hearing on an appeal by tbe defendants from a decree of the Supreme Court of the District of Columbia granting the relief prayed for in a judgment creditors’ bill. The facts are stated in the opinion.

Hearing on an appeal by the complainants from a decree of the Supreme Court of the District of Columbia in a suit in equity to enforce an equitable lien against lands.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, upon an agreed statement of facts, in an action on a policy of life insurance.

Hearing on an appeal from an order of the Commissioner of Patents sustaining a demurrer to and dismissing an opposition to an application for registration of a trademark. The Court in the opinion stated the facts as follows: -On February 14, 1906, the appellee, the Herring-Hall-Marvin Safe Company, filed an application for the registration of “Hall’s Standard Safe,” as its trademark, which was passed to publication.

Hearing on an appeal from an order of the Commissioner of Patents sustaining a demurrer to and dismissing an opposition to an application for registration of a trademark.

<p>Tbademabks.</p> <p>Re-registration of a trademark for lager beer, consisting of a six-pointed star with the letters “Gr. E.” inscribed in the center, originally registered June 9, 1896, is properly refused by the Commissioner of Patents, in view of the registration, September 5, 1893, by another party, of a trademark for lager beer, consisting of a six-pointed star surrounded by two circles, having inscribed between the inner and outer circles the words, “The Celebrated Star Lager Beer;” as the mark sought to be re-registered would tend to confuse the mind of the public with that of the registered mark of the other party. (Following Re Indian Portland Cement Co. 30 App. D. C. 463.)</p>

Hearing on an appeal from a decision of the Commissioner of Patents dismissing an opposition to an application for 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; Interference; Burden of Proof.</p> <p>1. The burden is on the junior applicant in interference to overcome the presumption of priority that attaches to the senior applicant from the fact of his earlier filing date.</p> <p>2. In an interference case involving the invention of a safety device for elevators, in which the junior party testified that he disclosed the invention of the issue to the senior party, and that, on the strength of the information so derived, the senior party, shortly after the alleged disclosure, filed his application; and the senior party contradicted such testimony, and testified that he disclosed the invention to the junior party, which resulted in the latter’s application; and neither party was directly corroborated, — this court held, affirming a decision of the Commissioner of Patents, that, in view of the testimony and the surrounding circumstances and the conduct of the parties, that as to the invention of the issue the senior party was not the original inventor, but derived his knowledge thereof from the junior party, who was entitled to an award of priority.</p> <p>3. Where one of the parties to an interference is shown to have fully completed his drawings for the Patent Office prior to the earliest date fixed by the other party, he is entitled to an award of priority.</p>

<p>Patents; Patentability.</p> <p>A decision of the Commissioner of Patents affirmed, which denied the application for a patent for a form of guarantee credit book which added to the arrangement of similar books for which former patents had been granted, other columns for the purpose of keeping an account of liquidated damages, or amounts which the depositors must pay the guarantor for failure to purchase a stipulated amount of merchandise, upon the ground that it involved no invention to add to the book the additional columns to accomplish such purpose.</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.

<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 certain of the claims in an application for a patent.</p> <p>The facts are stated in the opinion.</p>

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

The Court in the opinion stated the facts as follows: This case comes here on writ of error from a judgment of the police court of the District of Columbia.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia entered after the overruling of a demurrer to a plea to a declaration, in an action for assault and battery, the plaintiff having elected to stand on her demurrer. The facts are stated in the opinion.

<p>Hearing on an appeal by the petitioner from an order of the Supreme Court of the District of Columbia, dismissing his petition for the writ of habeas corpus.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from an order of the supreme court of the District of Columbia denying the petition of the appellant, John A. Benson, for a writ of habeas corpus. On February 17, 1904, the grand jury of the United States for the District of Columbia found an indictment against appellant and others, charging a violation of the provisions of sec. 5440 of the Revised Statutes of the United States. On the 20th of February, 1904, one William J. Byrnes made a complaint under oath before one Shields, a United States commissioner for the southern district of New York, charging that the petitioner was then in said district, and was the identical person named in the said indictment pending in the District .of Columbia, a copy of which indictment, together with a copy of the bench warrant of the supreme court of the District of Columbia issued thereon, were attached to the said complaint. On the same day, Shields issued a warrant for the arrest of appellant. The warrant was executed by the United States marshal for the said district, and the appellant was committed to the custody of the marshal until an examination could be bad before the commissioner.</p> <p>On June 7, 1904, the commissioner made an order committing the appellant for trial in the District of Columbia, and remanding him to the custody of the said marshal until a warrant for bis removal to the District of Columbia could be issued by the United States district judge for the southern' district of New York. On the same day, appellant filed a petition for a writ of habeas corpus in the circuit court of the United States for the southern district of New York. After alleging the circumstances relating to bis arrest and commitment, appellant claimed that be was illegally restrained and denied bis liberty upon “a written complaint of one William J. Byrnes, which sought to charge your petitioner, together with Frederick A. Hyde, and others, with a conspiracy to defraud the United States in violation of sec. 5440 of the United States Revised Statutes. That said complaint was made wholly upon information and belief, and the complainant’s belief was stated to be based upon a copy of an indictment against your petitioner, Frederick A. Hyde and others, said to have been found in the Supreme Court of the District of Columbia at a criminal term thereof, on the Pith day of February, 1904.” The petition further charged that the arrest and detention of appellant by order of the United States commissioner was without due process of law and in violation of the Constitution of the United States, in that the complaint, alleged indictment, and evidence, which constituted the sole authority for appellant’s arrest and commitment, charge no crime against the United States, and show no violation by appellant of the provisions of see. 5440 of the Revised Statutes, or any other statutes of the United States, but show affirmatively that no offense was committed by appellant upon which he could be tried in the District of Columbia. A writ of habeas corpus was allowed on the same day by the circuit court, and also a writ of certiorari directed to the United States commissioner to certify the record in the case before him to the said court. Return was made to each writ, and on the 28th of July, 1904, the said circuit court ordered the discharge of the petitioner because, in its judgment, it appeared that the appellant was illegally held, for the reason the record before it did not set forth facts tending to establish a conspiracy to commit an offense against the United States. The United States attempted to take an appeal from the order discharging the appellant, to the circuit court of appeals for the second circuit. The appeal, however, was dismissed for want of jurisdiction.</p> <p>No further attempt was made on the part of the officers of the United States to extradite the appellant. On May 26, 1905, the appellant, being found in the District of Columbia, was arrested upon another bench warrant issued under the same indictment. On April 6, 1908, his surety surrendered him in open court, and he was taken in custody by the appellee, Aulick Palmer, the United States marshal for the District of Columbia. Appellant then presented to the supreme court of the District of Columbia a petition for a writ of habeas corpus, claiming that his detention was based solely upon the indictment originally found against him, and that this indictment had been finally and conclusively adjudged by the circuit court of the United States for the southern district of New York, having jurisdiction as well of the person of'appellant as of the subject-matter of this proceeding before it, to state no crime against the United States; that the judgment of said court concluded the power of the courts of the District of Columhia to hold appellant under said indictment; that appellant was being held to answer an infamous crime upon an indictment which had been declared by a court of competent jurisdiction to be insufficient and invalid, and that he was not again subject to arrest on account of said indictment. Upon hearing, an order was entered in the supreme court of the District of Columbia denying the prayer of appellant. From that order the case comes here on appeal.</p>

<p>Patents; Interference; Conception and Disclosure.</p> <p>The evidence in an interference proceeding, relied on by the junior party to show conception and disclosure prior to the filing date of the senior party, held insufficient, where one of his witnesses as to disclosure, who frequently consulted him in reference to obscure points of his work, fixed the date of disclosure by the fact that he and the junior party were preparing for a dinner, but his testimony tended to establish that preparations for such a celebration were made, rather than that the alleged disclosures were made at that time; and the testimony as to when an exhibit of the junior party was actually made which disclosed the invention, and was delivered by him to a third party subsequent to the senior party’s filing date, was obscure and uncertain; and when the testimony of the junior party himself, who first fixed the date of his conception a few weeks prior to the filing of a certain document, and later fixed the time at about one week prior thereto, showed that he had no recollection of the time he conceived the invention, but could only estimate it.</p>

<p>Patents; Intebpekence; Diligence.</p> <p>In an interference proceeding involving an invention the purpose of which was to afford means of overcoming the negative electrode resistance of electric gas lamps, it was held that the senior party was entitled to an award of priority, as it appeared that, even if certain experiments made by the junior party from five to seven years before ho filed his application amounted to reduction to practice, the fact that he had delayed filing his application until after he had seen a successful exhibition of the invention by the other party, and the further fact that, during the interval between his alleged reduction to practice and his filing date, he obtained forty-two patents for other inventions, showed inexcusable lack of diligence. (Following Paul v. Mess, 24 App. D. C. 462; Seeherger v. Dodge, 24 App. D. C. 476.)</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; Evidence; Master and Servant.</p> <p>1. Where the evidence in an interference proceeding, involving an improvement in grain drills, showed that the junior party, who was the agent of a company manufacturing pressed steel articles, took from the senior party, who was the agent of a company manufacturing agricultural machinery, and who had expert knowledge of grain drills and knew what improvements in them were desirable, an order to make a sample drill; and such sample and several others were made by the former company for the latter company, until one was produced involving the invention of the issue; and the senior party testified that he imparted to the junior party not only the broad idea embraced in the invention, but suggested to him the various modifications and changes constituting the invention; while the junior party testified that the other party did nothing more than furnish him a sample of the old drill and requested him to duplicate it in other material, and that such modifications and changes were his own; and the evidence further showed that the junior party filed his application fifteen months after the issuance of the patent to the senior party and about eleven months after actual knowledge by him of such issuance, — it was held that the senior party was entitled to an award of priority.</p> <p>2. When one conceives the principle or plan of an invention, and employs another to perfect the details and realize his conception, though the latter may make valuable improvements therein, such improved results belong to the employer. (Following Kreag v. Geen, 28 App. D. C. 437.)</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; Diligence.</p> <p>1. Where it conclusively appears in an interference case that the party against whom the rule of diligence is sought to be enforced was im fact the prior inventor, the facts and circumstances surrounding him at the time of his alleged lack of diligence will be carefully considered before he will be deprived of the fruits of his discovery. (Following Woods v. Poor, 29 App. D. C. 397.)</p> <p>2. In an interference involving a fuse holder of an enclosed type, between original and independent inventors, the junior party, who was the first to conceive, was held not to be lacking in diligence, when the evidence showed that during the three years which preceded the filing of his application he conducted experiments in such fuses, everything that he did indicating a desire and intention on his part to give to the public the benefit of his discovery at the earliest practicable moment, and that the senior party did not enter the field until after the junior party had fully disclosed his invention to several witnesses, had demonstrated its entire practicability, and was fully aware of its value, and had made arrangements for tools with which to manufacture the different parts of fuses embodying his invention, and upon the completion of the tools, which was not long after the senior party entered the field, had actually constructed fuses fully embodying the issue, all of which was done without any knowledge on his part of the senior party or his invention.</p>

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

<p>Patents; Interference; Appeals; Claims.</p> <p>1. While, in awarding priority of invention in an interference proceeding, the right of one of the parties to make a claim may be considered as an ancillary question (following Podlesak v. McInnerney, 26 App. D. C. 405), where the three tribunals of the Patent Office have concurred in answering the question in the affirmative, this court will follow them unless a manifest error has been committed (following United States ex rel. Newcomb Motor Co. v. Moore, 30 App. D. C. 464), — especially in a case involving complicated construction, about which the experts of the Patent Office are less liable to err than this court.</p> <p>2. If an applicant desires the claims interpreted or limited otherwise than expressed by the plain and usual meaning of the words employed, he should draw his claims to embody the meaning intended.</p> <p>3. In an interference proceeding involving the invention of a device for governing the speed and power of compound steam turbines, in which one of the parties contended that his invention and that of the other party were different, and that, therefore, the latter had no right to make claims of the issue, it was held, following the concurrent decisions of all of the Patent Office tribunals adverse to such contention, and after reviewing the claims of both parties, that, giving the counts of the issue the interpretation to which they were fairly entitled, they applied to the structures of both parties.</p> <p>4. Where, in an interference proceeding, it appears that one of the parties conceived the invention prior to the date when the other party— a foreigner — introduced his invention into this country, and reduced to practice a year prior to such other party’s filing date here, he is entitled to an award of priority.</p>

<p>Patents; Interference; Reduction to Practice; Diligence,</p> <p>1. Where, in an interference proceeding involving an improvement in racks for supporting fire hose, the idea of a telescoping arm which would receive the links as the hose was pulled from the rack constituted the invention, and it appeared that the original device constructed by one of the parties was not provided with means for preventing such arm from being completely drawn out of its socket, and that an unusual or very sudden pull of the hose from the rack would disconnect the arm and defeat the real purpose of the invention; and to remedy this defect the inventor put a headless setscrew or pin in the arm to hold the latch permanently in place,— it was held that the set-screw was a mere mechanical addition to the device and obvious to anyone skilled in the art, and that its absence did not prevent the original test from constituting a reduction to practice.</p> <p>2. Lack of diligence is shown by the junior • party to an interference, where, for more than a year after he claims to have perfected the invention, he did. nothing towards asserting his rights, and then acted because the other party put his device embodying the invention on the market, and he fails to offer any valid reason or excuse for his delay.</p> <p>3. While an inventor is under no obligation to give the public the benefit of his discovery, by failing to do so he runs the risk that some other inventor may do so, and thus in the eyes of the law become the prior inventor, and as such entitled to a patent. (Following Mason v. Hepburn, 13 App. D. C. 86; Thomson v. Weston, 19 App. D. C. 373; Matthes v. Burt, 24 App. D. C. 265; Bliss v. McElroy, 29 App. D. C. 120; and Richards v. Burkholder, 29 App. D. C. 485.)</p>

Hearing on an appeal by the plaintiffs from a judgment of the Supreme Court of tbe District of Columbia, on verdict, in an action by attorneys to recover tbe value of professional services. Tbe facts are stated in tbe opinion.