Volume 32 — Appeals, District of Columbia

Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia sitting as a court of equity, sustaining a demurrer to and dismissing a bill for an injunction. The Court in the opinion stated the facts as follows: This appeal brings into review a decree of the supreme court of the District dismissing appellant’s bill of complaint. Appellant, Fried.

<p>Appeal and Ebrob; Patents.</p> <p>This court has no original jurisdiction to direct and supervise the administration of the affairs of the Patent Office; and therefore cannot, in an interference case, after it has reversed an award of priority by the Commissioner, following the granting by him of a motion for judgment on the record, instruct the Commissioner, on the petition of the appellee, to allow him to proceed with the taking of testimony in order to establish his right to priority over the other party.</p>

<p>Hearing on a motion by tbe appellee to strike ont a bill of exceptions from tbe transcript of the record and to affirm the judgment appealed from.</p> <p>The facts are stated in the opinion.</p>

Hearing on an appeal (specially allowed) By the complainant from an order of the Supreme Court of the District of Columbia, sitting as a court of equity, referring the cause to the auditor over the objection of the complainant. The Court in the opinion stated the facts as follows: This is a special appeal that has been allowed from an order of the equity court referring the cause to the auditor, over the objection of the petitioner, Alice Tyler Easter.

Hearing on an appeal (specially allowed) by tbe respondent, tbe Secretary of tbe Treasury, from an order of tbe Supreme Court of tbe District of Columbia, overruling his motion to deny tbe writ of mandamus, to discharge tbe rule laid on him to show cause why tbe writ should not issue and to dismiss tbe petition for the writ, such motion having- been made after an answer was filed to tbe petition for tbe writ and a demurrer to tbe answer bad been overruled and tbe answer…

<p>Appeal and Erbob; Bills of Exceptions; Municipal Corporations; Negligence and Contributory Negligence; Streets and Sidewalks.</p> <p>1. An appeal will not be dismissed where the trial judge to whom was submitted the bill of exceptions within the time prescribed by the rule failed to sign it until after the expiration of such time, but then signed it nunc pro tunc.</p> <p>2. A pedestrian on a sidewalk who, stopping to note the progress of the construction of new houses, steps a little to one side, or backwards, and falls into an unguarded excavation occupying about one third of the width of the sidewalk and about 8 feet deep, made for the purpose of making sewer connections with the houses, is not, as a matter of law, guilty of such contributory negligence as will defeat his action against the municipality, the building contractors, and owners of the houses to recover damages for his injuries.</p> <p>3. Where a pedestrian on a public sidewalk falls into an excavation in the sidewalk, made for the purpose of making sewer connections with houses in course of construction, both the owners of the houses and the contractor doing the work are liable for the resulting damages, if the excavation was unguarded, and the permit issued to the contractor, and of which the owner had notice, required that the excavation should be suitably guarded.</p> <p>4. Where the municipality issued a permit to a building contractor to make an excavation in the sidewalk for the purpose of connecting houses in course of construction with a public sewer, it is chargeable with knowledge of the prosecution of the work, and the duty to supervise it; but where such excavation was fully completed, about four hours before a pedestrian using the sidewalk fell into the hole, then unguarded, and was injured, and up to within a few minutes of that time a laborer who had assisted in digging the hole remained near it, the municipality cannot be said to have had constructive notice of the unguarded condition of the hole, and, in the absence of actual knowledge of its condition, is not liable to the party injured.</p>

<p>Hearing on an appeal by the defendants from a judgment of the Supreme Court of the District of Columbia on verdict in an action of assumpsit.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This action was brought by George Henderson against Joseph T. Terry and J. Trank Terry to recover the sum of $1,400 on account of services rendered by him in superintending the construction of a house for them, and money expended for them therein. The house was alleged to have cost $20,000, and the ■claim was for 10 per cent thereof, less a credit allowed of $600 for the services of the architect. Defendants denied making a promise as alleged, and any indebtedness on account of the said services.</p> <p>Plaintiff’s evidence tended to show that he superintended the construction of the building at the request of defendants. That it cost $20,000 and the construction consumed about six months. That he visited the building every day, and sometimes two or ■three times a day. That he was usually there when the men commenced work, about 7:30 in the morning. That he got the payroll from the foreman, and paid the workmen with money furnished by defendants. That he procured releases of all claims for work and materials, of which there had been about twenty. That he arranged a difficulty about a party wall, paying an attorney engaged $100 of his own money. That his services were worth 10 per cent of the cost of the building, but as the architect had a contract for $600, he had allowed the same as credit on his claim.</p> <p>Upon cross-examination he said that during the whole period he had been a clerk for R. E. Bradley, a real-estate agent, and was paid a salary for conducting his rental business. That he usually gave the hours from 9 a. m. until 5 p. m. to Bradley’s service. Plaintiff was asked what salary he was paid by Bradley for his services. His counsel objected, without stating any ground of objection, nor did the defendants indicate the purpose •of the evidence in reserving an exception to the refusal of the court to permit witness to answer. That he had no technical knowledge of building or architecture, and had never before superintended an entire building, but had considerable to do with repairs to buildings. That defendants were trustees for a number of buildings, the rents of which Bradley collected for them. Part of the expenditures on the building was paid out of these rents and charged in accounts rendered; the remainder furnished by defendants on request. The foreman was paid $1 per day extra, but not as superintendent. The architect visited the building, but how often plaintiff did not know. That all material was ordered through witness on request of the foreman. That about $400 monthly passed through Bradley’s hands as rents collected for defendants.</p> <p>Nicholas T. Haller, an architect, testified that 10 per cent was ■the usual and fair compensation for superintendence, and that a superintendent need not be experienced in building, or remain practically all the time upon the building, but needed only to understand the plans and specifications; and that part of his duty would be to order materials.</p> <p>Defendants’ evidence tended to show that plaintiff had not been employed to superintend the construction of the building. That there was no usage or custom to pay building superintendents a commission, but by the day only. That the plaintiff did not exercise any authority over the building. That overlooking of the carpenters was done by the foreman, and the work of superintendence by the architect, Avho visited the premises daily, and sometimes twice a day.</p> <p>Defendants called Joseph Nichardson, who qualified as an expert builder, who said that the usual compensation of building superintendents is $6 per day. He was asked: (1) “What are the qualifications of a man in that work entitled to $6 per day?” (2) “To earn $6 per day, or to be entitled to that in the building trade, how much time should the superintendent spend on the building?” (3) (after having testified that the-duties of a superintendent are to see that the work is properly carried on and plans and specifications adhered to) “To do-that properly, how much time of the superintendent would be-necessary ?” (4) What, in your opinion, would be the reasonable compensation of a man as superintendent of a building, who-should spend half an hour to an hour a day on the building ?” These questions were objected to, no ground thereof being-stated; nor did the defendants state Avhat they expected the answers to be. The witness was not permitted to answer, and. defendants excepted. Thomas T. Holden, also called by defendants, testified to long experience as a superintendent of building construction; that as a rule superintendents are paid by the day, at a rate of $5 per day for buildings of the kind in question ; that they do no manual labor, but direct the mechanics as-to how work should be done. He was then asked: (1) “What qualifications are necessary for such superintendents?” (2) “Assuming that a man, in superintending as you have indicated, was not required, on account of the job not being a very large job, to give his whole time to'the superintendence, but only to-■come in the mornings for a short time, and then again in the evening for a short time, and not always in the evening, and oc■casionally at some time during the day, but did not stay-there all the time, — would he be entitled to the full pay of a superintendent, $5 a day ?”</p> <p>Plaintiff objected to each question as before, and the same were sustained, with exceptions noted.</p> <p>The defendants excepted to the following special instruction given to the jury at plaintiff’s request: “If you believe the defendants requested the plaintiff to do the-work referred to in the evidence, then the burden of proof is upon the defendants to show that the plaintiff agreed to do such work without being paid therefor.”</p> <p>No exception was taken to any other part of the charge. The jury returned a verdict for plaintiff for $900; and from the judgment thereon defendants have appealed.</p>

Hearing on an appeal by the petitioners from an order of the Supreme Court of the District of Columbia overruling their demurrer to the answer of the respondents to a petition for the writ of mandamus, and, the petitioners having elected to stand on their demurrer, discharging the rule on the respondents to show cause why the petition should not be granted and dismissing the petition.

Hearing on an appeal by tbe petitioner from an order of the Supreme Court of the District of Columbia dismissing a petition for the writ of mandamus against the commissioners of the District of Columbia, and discharging the rule which had been laid upon them to show cause why the writ should not be issued.

<p>The decision in this ease is governed by United States ex rel. Columbia-Heights Realty co. v. Macfarland, ante, S3.</p>

<p>Hearing oh au appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia in an action for a breach of contract, the plaintiff’s demurrer to one of the pleas of the defendant having been overruled by the court and the plaintiff having elected to stand on his demurrer.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This action was begun by Lucien D. Winston against the Arlington Fire Insurance Company for the District of Columbia, on December 12, 1907. The declaration alleged that on and before June 8, 1901, plaintiff was the owner of a certain house in the city of Washington, that was then damaged by fire. That said house was then under insurance by the defendant against loss by fire. That by the terms of said contract of insurance the defendant had the right to pay the amount, of the ascertained loss, or, at its option, to repair, rebuild, or replace the said house within a reasonable time after said fire. That in pursuance of said contract, and in consideration thereof, the defendant elected and undertook to repair and reconstruct said house, including the replacing of a metal roof thereon, which had been damaged by fire, with one of like kind and quality. That, disregarding its obligation, undertaking, and duty, it failed to repair and replace said roof with another of like quality, but replaced and reconstructed the same with material of an unlike, insufficient, and inferior quality. That by reason thereof the said roof became more and more defective and insufficient, until, to wit, April 1, 1907, when it became necessary, to render said building inhabitable, to put an entirely new roof thereon. That defendant, though requested so to do, failed and refused, and plaintiff was compelled to put on the new roof, at a cost of $382.50; wherefore he has sustained damages to the amount of $500.</p> <p>The defendant entered three pleas to the declaration: (1) That the defendant never undertook and-promised as alleged ;. (2) that the cause of action did not accrue within three years next before bringing suit; (3) That in the said contract of insurance it was stipulated that no suit or action on said contract shall be sustainable in any court of law or equity, unless commenced within twelve months next after the fire doing damage to the property insured; and that the plaintiff did not bring his action within twelve months next after said fire; wherefor he is barred and forever estopped from bringing this action.</p> <p>Plaintiff demurred to the third plea. The demurrer was-overruled, and, plaintiff electing to stand upon his demurrer, judgment was rendered for the defendant. This appeal is prosecuted therefrom.</p>

Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia dismissing a bill in equity to set aside an alleged fraudulent assignment.

Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia sustaining a demurrer to and dismissing a bill in equity to construe a will.

<p>Eminent Domain; Municipal Cobpobations ; Statutes.</p> <p>1. Statutes providing for the condemnation of private property for public use must be construed strictly, and, if doubts exist as to the authority to proceed under such a statute, such doubts must be resolved in favor of the property owner.</p> <p>2. When the power to condemn property for public use is conferred by statute upon municipal officers, it is within their power to determine when a public improvement is necessary, and, so long as they do not exceed or abuse such power, the courts are powerless to inquire into the motives which actuate them, or the propriety of the contemplated improvement.</p> <p>3. The punctuation of a statute may be resorted to in its interpretation, although it affords an uncertain standard by which to do so.</p> <p>4. In sec. 483, D. C. Code (31 Stat. at L. 1265, chap. 854), providing for the condemnation of land in this District when it is needed for the “use of the United States, or by the commissioners of the District for sites of schoolliouses, fire or police stations, or for a right of way for sewers, or for any other municipal use authorized by Congress,” the words “authorized by Congress” limit only the words preceding them in the same phrase, “or for any other municipal purpose,” and have no reference to the preceding phrases; so that the commissioners have the right to institute and prosecute proceedings to condemn land for sewer purposes without express direction of Congress to do so.</p> <p>5. It would seem that see. 483, D. C. Code, which provides for the institution and prosecution by the commissioners of this District of proceedings to condemn land for sewer and other purposes, is intended to relate, so far as sewers are concerned, to trunk sewers, as surface sewers under other "laws are required to be constructed in streets and alleys where no condemnation of land for the right of way is necessary.</p> <p>6. Where land is sought to be condemned for sewer purposes by proceedings instituted by the commissioners of the District of Columbia under see. 483, D. C. Code, the fact that no appropriation has been made by Congress to pay for the land sought to be condemned at the timé of the institution of the proceedings, is immaterial. (Construing D. C. Code, secs. 483, 486, and 491.)</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 of trespass.

Heaking on an appeal by tbe plaintiff from a judgment of the Supreme Court of the District of Columbia, on an agreed statement of facts, in an action against the District of Columbia to recover damages.

<p>Municipal Corporations; Police Requlations; Animals.</p> <p>1. The regulation of the keeping and running at large of dogs in a city being peculiarly within the scope of the police power of the municipality, the exercise of authority on the subject by the commissioners of the District of Columbia by police regulations will not be questioned unless clearly inconsistent with the expressed will of Congress.</p> <p>2. Art. 7, police regulations of the District of Columbia, providing for the punishment of any owner or custodian of an unmuzzled dog, who allows it to go at large when the commissioners have, by proclamation, required all dogs running at large to be muzzled, — promulgated under the authority of-the act of Congress of January 26, 1887 (24 Stat. at L. 368, chap. 49), empowering the commissioners to regulate the keeping and running at large of dogs in the District of Columbia, — is not inconsistent with the act of Congress of June 19, 1878 (20 Stat. at L. 173, chap. 322, U. S. Comp. Stat. 1901, p. 397), authorizing the commissioners to make such proclamation, and providing for the impounding of unmuzzled dogs allowed to go at large during the period covered by the proclamation; and is a reasonable and valid police regulation.</p>

<p>Hearing on an appeal by the respondent, the Secretary of the Interior, from an order of the Supreme Court of the District of Columbia, sustaining a demurrer to his answer to a petition for the writ of mandamus, and directing the issuance of the writ to compel him to vacate an order disbarring the relators from practice as attorneys before his department and to restore them to the roll of attorneys; and also upon motions by the relators to dismiss the appeal, and also to dismiss certain other appeals by the respondent which had been specially allowed by this court, on the ground that the appellant had failed to give an appeal bond.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal by James R. Garfield, Secretary of the Interior, from an order directing a writ of mandamus to him to vacate an order made by him as Secretary of the Interior on May 1, 1908, disbarring Eugene E. Stevens, Thomas R. Harney, and the firm of Milo B. Stevens & Company, and to restore them to practice before the Department of the Interior, its bureaus and offices.</p> <p>The petition against the respondent, Garfield, alleges that he was, on April 13, 1907, and has been continually since, Secretary of the Interior for the United States.</p> <p>That, on November 23, 1896, one Milo B. Stevens and Eugene E. Stevens were partners under the firm name of Milo B. Stevens & Company, practising before the Department of the Interior and the several bureaus thereof, having been duly admitted thereto. That Milo B. Stevens died November 23, 1896, and, on December 2, 1896, the relators, Eugene E. Stevens, Thomas R. Harney, Martha G. Harney, then Martha G. Stevens, widow of Milo B. Stevens, and Evelyn Stevens, by her guardian, Martha G. Stevens, now Harney, became, and have continually since been, copartners under the said firm name of Milo B. Stevens & Company, and practitioners before said department.</p> <p>That neither Martha G. Harney, nor Evelyn Stevens, has been formally admitted to practice before said department, but Eugene E. Stevens and Thomas R. Harney were duly and formally admitted to practice, and, with the knowledge of respondent, they, with their copartners aforesaid, have been engaged in said practice as constitutent members of the firm of Milo B. Stevens & Company.</p> <p>That, on April 13, 1907, relators Eugene E. Stevens and Thomas R. Harney were served with a citation charging them, under the name of Milo B. Stevens & Company, with improper, unprofessional, and illegal conduct, in connection with certain claims for military bounty land.</p> <p>That said parties were orally heard before the respondent, and filed a statement in reply to said charges. That afterwards respondent, upon the consideration of these so-called answer, testimony, and argument, promulgated an order, on May 1, 1908, disbarring said relators and the firm of Milo B. Stevens & Company from practice before said department. That thereafter relators made an application for reconsideration of said action, which was denied. That, in their answer, relators relied in part defense upon an alleged practice of purchase, by practitioners before said department, of land warrants from their clients, long well known to and suffered and permitted by said department without objection or condemnation, which has become and was known as “a kind of common-law custom or usage in the transaction of such business, and in the practice in such class of cases.”</p> <p>That, nevertheless, upon an ex parte investigation and report of certain subordinate officials of said department, and without opportunity to relators to participate in such investigation, or to support, by the production of witnesses, their allegations in the premises, the respondent decided the contention of the relators in that behalf adversely to them, and in part rested his conclusion and decision upon the pretended adjudication that such practices did not' exist and had not existed; whereby relators were deprived of due process of law, and of the opportunity to make good their defense.</p> <p>That relators have, through much advertising and labor, built up a lucrative business and practice before the said department, and have more than 42,000 claims for pensions and more than 250 for patents, pending in said department, the fees in which have been partly and in some cases fully earned; and the order disbarring them will utterly destroy their said business.</p> <p>That neither Martha G. Harney, nor Evelyn Stevens, was cited to answer said charges, nor was offered an opportunity to be confronted with the witnesses produced in support thereof, and were not within the jurisdiction of the respondent.</p> <p>That relators have no right of appeal or writ of error from the action of the respondent, and no relief save through the writ of mandamus. The citation, answer thereto, and brief in support of relator’s contention before the respondent are made exhibits to the petition, and will be referred to later.</p> <p>The amended answer of the respondent alleges the following facts substantially.</p> <p>Eule 5 of the regulations prescribed by the Secretary of the Interior, under authority of the act of July 4, 1884, in regard-to admissions to practice, requires that in the case of a firm the names of the individuals composing the same must be given, and a certificate and oath as to each member of the firm will be required; and, under this rule, it has been the practice to decline to recognize a firm unless each member thereof has been admitted to practice and is in good standing.</p> <p>After the death of Milo B. Stevens in 1896, and upon motion of Eugene B. Stevens as sole surviving member of said firm of Milo B. Stevens & Company, and upon the statement of Eugene E. Stevens and Thomas E. Harney that they had formed a copartnership, they were permitted to practice before the department under the firm name of Milo B. Steven’s & Company, on June 24, 1891, upon the condition precedent that they should procure from the legal representatives of the late Milo B. Stevens a statement that no objection is had to the use of the said firm name of the new firm; further, that said Stevens and Harney shall not take into partnership any new persons to practice under said firm name; and, further, that the said Stevens and Harney shall file a joint statement duly authenticated, accepting the terms aforesaid.</p> <p>The said parties filed the affidavit of the widow of Milo B. Stevens as required, and accepted the terms of said admission to practice.</p> <p>That said Martha G. Stevens, widow of Milo B. Stevens, became the wife of Thomas R. Harney, October 19, 1898, and Evelyn Stevens is the daughter of said Milo B. Stevens. Neither of them has been admitted to practice before the department, as individuals or members of the firm of Milo B. Stevens & Company, nor was disbarred by said order of May 1, 1908, and therefore has no status to join in the petition for mandamus. The said parties never had been admitted to practice, and the department officials had no knowledge that they were members of said firm of Milo B. Stevens & Company, as admitted to practice.</p> <p>The alleged averment that the practice of attorneys to purchase land warrants of their clients was known to and acquiesced in by the department officials is denied. That said claim is not a legal defense to the charges made, and was not so considered by respondent. The investigation of these charges of knowledge and so forth by officials of the department was made by the respondent to inform himself regarding the same, but not by way of meeting any defense founded thereon, as the sufficiency of the averment as a defense was not recognized.</p> <p>It is not true that, upon such investigation, the respondent decided the said contention against relators, for, in reaching his final decision, he did not consider the said facts, as in his opinion the defense, if true, had no merit. There was therefore no denial of due process of law in the premises.</p> <p>The relators were charged in detail in the citation with specific acts of misconduct, and given thirty days to answer the same. The answer thereto admitted the doing of the acts charged, but denied that, by reason thereof, they were guilty of any offense. They submitted certain evidence in their behalf, which consisted, among other things, of receipts procured from their clients for the sums of money they had been charged with improperly procuring from them, showing payments made to them of said profits after the institution of the proceedings against relators. These receipts show payments, after the instifcution of the disbarment proceedings, of sums of money varying from 50 to 600 per cent more than the amounts they had originally paid to their clients. This difference they had retained for their own profit, and the defense founded on said receipts was that they had made restitution. On this record, it was not necessary to produce any witnesses to prove the facts which the relators admitted in their answers and in the evidence offered in support thereof. It became solely a question whether, on the admitted facts, the charges were sustained, and whether the relators had violated the provisions of the act of July 4, 1884, and the laws, rules, and regulations of the department governing the practice of attorneys practising before the same. Relators were permitted to make all the arguments desired, and appeared in person and by attorney at the hearing. Relators were not denied the right to be confronted with witnesses, or to refute the testimony with witnesses. The fact is that no witnesses were produced because relators admitted the facts stated in the citation. There was no testimony offered to be refuted, and relators did offer all the testimony they desired in answer to said charges.</p> <p>Respondent admits that, before the issuance of citation, and before any charges were made, the Commissioner of Pensions had caused an investigation to be made concerning improper practices in the department, which had no particular relation to these relators; and, in the course of this investigation, it was shown, by depositions taken, that certain attorneys were trafficking with their clients by procuring assignments of their land warrants at grossly inadequate priees, and selling the same at their market value, thereby reaping a large profit. This investigation was made only for the purpose of informing the Commissioner of Pensions as to the conditions obtaining in his bureau, and at the time of the same or during its continuance it was not and could not be known whether the relators or any other persons would be charged with any offense as the result thereof, or that the investigation would disclose sufficient ground to charge them with any offense. After the investigation was concluded, it was concluded by the Commissioner that there was reasonable ground to charge the relators with improper practices, and he then issued his citation in which were embodied the specific acts which the relators were called upon to answer. This citation became the basis of the proceedings and was the only accusation made. TJp to this time relators were under no legal charge which they were compelled to answer, and, under the circumstances, no notice was given to them of the taking of the deposition.</p> <p>When they were charged by the issue of the citation they made their response admitting the purchase by them of warrants as alleged, but denying any wrongful intent, and their liability under said charges, and the jurisdiction of the Secretary to entertain the same.</p> <p>That all the time demanded was given respondents to be heard, and after hearing them the Commissioner made a report to respondent recommending the disbarment of relators.</p> <p>Thereafter respondent granted them a full hearing in person and by counsel. While objections were made that the depositions upon which the citation was based were taken without opportunity to the relators to cross-examine the witnesses, the real contention was that the acts charged and admitted did not fall within the law, and the jurisdiction of respondent to make the same the basis of disbarment; and that, even if respondent should decide that the offenses charged and admitted were of sufficient gravity to disbar relators, they had made restitution to their clients of the sum of $6,841.95 by repaying moneys improperly obtained from twenty-two of them, and for that reason clemency should be shown. In support of this, the following extract is quoted from the brief of counsel, filed with respondent: “Tried by every standard, they have not been guilty of any conduct meriting the action recommended. On the contrary, by their frank acknowledgment of the inadvertence which led them into their position, and their prompt and full reparation of that inadvertence, they not only have removed all just grounds of criticism, but also have, indeed, qualified themselves to extort commendation, and to repel the condemnation and humiliation sought to be visited upon them.” The, proceedings are set out in exhibits, which include the correspondence, applications, etc., relating to the admission of the relators to practice as alleged in the answer.</p> <p>One of the exhibits is the report of the Commissioner of Pensions containing the depositions, etc., taken in his preliminary investigation.</p> <p>The following extract is taken from the concluding portion of the answer: “He denies that the so-called testimony ‘relied upon in support of the charges is and was in direct disregard of the settled rules of evidence/ because, as above set forth, it was not claimed that witnesses testified orally in support of said charges. The citation set out with great particularity the facts which the relators were called upon to answer, and specifically set out and referred to the facts deemed important in the charge, and also set out certain documentary evidence in the form of letters and extracts from letters written by the relators to their clients, which letters and extracts from letters had been procured through the taking of the depositions as aforesaid before the issuing of the citation. The citation also referred, specifically, to the original warrants bearing the indorsements of the clients of the relators and of the said relators themselves, which were on file in the public records of the department. The answer of the relators did not deny the dealing by them in the warrants, as charged, although it raised the question as to the legal import of their acts in the premises, and denied any guilty intent or knowledge in the performance of such acts. In their original response, the relators set forth a copy of a letter written by them to one of their clients, and, in reply to the suggestion of the Commissioner that they should submit such evidence as they might possess and might desire to offer in support of the allegations of their response, the relators submitted certain exhibits in the form of memoranda made from their files, an exhibit showing the amounts received and refunded by them in each ease, and certain letters passing between themselves and certain of their clients, including a letter sent to each of their clients to whom they made refundment; and certain affidavits, six in number. It is accordingly denied that the substantiation of the charges in the citation was made in violation of the settled rules of evidence.”</p> <p>The charge, filed as an exhibit to both petition and answer, and dated April 13, 1907, was directed to and served upon the relators Eugene B. Stevens and Thomas B. Harney doing business under the firm name of Milo B. Stevens & Company, with notice to show cause, on or before thirty days after service, why they should not be recommended to the Secretary for disbarment. The general charge is: “As such attorneys, you, and each •of you, are hereby charged with improper, unprofessional, and illegal conduct in connection with each claim for military bounty land jointly filed by you and mentioned in this letter, in resorting to the methods and in committing the specific -offenses set forth below.” The specific charges related to claims in the names of fourteen persons in succession, and charge the purchase of the land warrant of the respective clients at less than its market value, through failure to inform them of its actual value, and misleading them as to the same. The charges are accompanied by letters of Milo B. Stevens & Company to the client relating to the purchase, etc. These are too long for insertion in full, and some of them only will be stated here chiefly as summarized in the answer of relators thereto, with their reply to the same. One charge relates to Pygall’s case, in which the following extract from a letter of relators to Pygall on December 16, 1904, is quoted: “It is going to be very difficult to obtain a duplicate of the bounty-land warrant that was issued to your mother and five children, because it is going to be difficult for you to furnish the required evidence. However, we have concluded to try the case if the surviving heirs at law will agree to sell the warrant to us for $100 cash, provided we secure it. If the surviving heirs will agree to the above, we will make no charge for our services in prosecuting the case, and we will pay for the advertisements that will have to be inserted in the newspapers concerning the loss of the warrant. We will be put to considerable expense in the matter, and, besides, we will have to take all the chances of success.” It is charged that they well knew that the duplicate warrants, if issued, could be sold for not less than $480, and made no statement as to actual value, but attempted to enter into a champertous and illegal contract to pay the expenses incident to the prosecution of the claim, and to absorb over three fourths of the value of the warrant if issued. “Any written or oral contract which you may have entered into to that end is wholly void and in violation of see. 2436, Rev. Stat., U. S. Comp. Stat. 1901, p. 1498.” Notice was given that the claim had been allowed by the department and forwarded to the claimant.</p> <p>The answer returned to this was:</p> <p>(1) It was not possible to know, and parties did not know, what would be the value of the warrant when issued.</p> <p>(2) The claimant was not informed of the actual value of the warrant because the same was not known. Relators did not profess to fix any value on the warrant, unless the offer to purchase at a set price be construed into such an attempt, and did not attempt to mislead the claimant as to any sources of information accessible as to the value of the warrant, or say anything- inviting reliance upon the offer to the exclusion of any inquiries they might see fit to make. It was further said, as regards a champertous and illegal contract: “We do not admit that our letter is justly capable of any such construction. We were not undertaking to induce the claimants to divide the produce or fruit of our services, which is essential to champerty, but we frankly admit that we were endeavoring to buy, in advance, the subject of the claim, and this, we submit, we might lawfully do-against the whole world, except the claimants whose privilege it was in the end to refuse to carry the bargain into effect. This consideration is involved in the third allegation to which we pass:</p> <p>“(3) That any written or oral contract which we may have entered into in the premises may have been void under sec. 2436, U. S. Rev. Stat., may be admitted, but that it was in violation of that section is respectfully denied, for the reason that that section does not forbid such agreements; it only makes them void; and it has been so frequently adjudged that the invalidity of such and similar agreements is available only to the claimant, who may, or may not, insist upon such invalidity, that it seems necessary only to add that, as all persons are equally presumed to know the law, the claimants must be presumed to know that, at the end of our labors and the rendition of our services in the premises, it remained for them, and them only, to recognize or to repudiate any supposed obligation on their part in the premises.”</p> <p>It was then added that the facts in the case were most complicated, and the services involved many and great difficulties. That, on December 5, 1906, Pygall wrote that he had received the warrant, and offered to send the same for $100; but hearing, on inquiry at the department, that an order had been issued directing warrants to be delivered to none other than the claimants, and that it did not look with favor upon the practice of attorneys buying warrants from their clients, they wrote to Pygall on December 12, 1906. This letter explained the attitude of the department, and asked him to dispose of the warrant and remit their fee of $10.</p> <p>The charge in the Graves case was that, on October 5, 1903, relators filed application for a duplicate military warrant for the party living in Jackson county, Tennessee. Duplicate issued April 27, 1904, and was delivered to relators May 19, 1904. During May, 1904, they induced the client to assign said warrant to them for $100, and on July 30, 1904, the warrant was sold through William J. Johnson to Abram Matthews for $364.90. The answer to this was as follows: “It is true that we made the application stated and received an assignment of the said warrant for the sum of $100. We have no knowledge as to the allegation that the said Johnson sold the warrant for the sum mentioned, except on information and belief, and, in selling the said warrant, the said Johnson was not acting for us in the transaction.”</p> <p>The Monaghan-case charge was that relators prosecuted the claim to successful issue for Margaret Monaghan, widow, and had been certified a fee of $25 under fee agreement filed. Said warrant was issued July 7, 1905, and delivered to relators on July 24. On August 7,1905, they induced said client to assign said warrant to one of them, Thomas R. Harney, for the sum of $200, and said warrant was sold to W. R. Abbott by R. A. Fennell, of Washington, District of Columbia, for $720. The answer was as follows: “It is true that the warrant in this case was purchased by us for $200, but we had no relation whatever to the sale thereof to Abbott by Fennell.”</p> <p>The McKean-case charge was that respondents filed this claim for a land warrant on March 8, 1905, for claimant, a resident of Guadaloupe county, Texas, and, during the pendency of the claim, entered into an agreement by which the warrant, if issued, was to be assigned to them for $75. The warrant was issued December 1, 1905, and delivered on February 7, 1906, to them, they having certified a fee of $10 for services rendered in prosecution of the claim. The warrant was assigned to said Thomas E. Harney, one of the relators, in consideration of $75, and was, on February 21, 1906, sold by them for $240. The answer to this was: “These allegations are true, except that we waived our fee of. $10 and made no attempt to collect the same.</p> <p>In the Eeddick case the charge was that the respondents filed the claim for Sallie B. Eeddick, of Los Angeles, California, for warrant which was issued August 28, 1905, and delivered to relators on September 11, 1905. That, on September 16, 1905, they induced her to assign the warrant to Thomas E. Harney, .and said warrant was sold to W. E. Abbott by E. A. Fennell, September 19, 1905, for $720. To this they answered: “This warrant was purchased by us for $200; we received no fee; and there were some expenses incident to the purchase of the warrant. We had no relation to the alleged sale to Abbott_by Fennell, and the same was not made on our account.”</p> <p>In the Shirkey case the admission was that the warrant was delivered to them September 30, 1904; they induced Shirkey to assign the same to them for $150 on March 23, 1905, and resold the same on April 25, 1905, for $540. That they received no fee in the case, and paid other counsel for services in connection therewith.</p> <p>Additional cases to those specifically stated were five in number. The charge gave the names, and dates of issue of warrants, and charged that the several clients were induced to assign their warrants to their attorneys for the smallest sums possible, and that the respondents then resold the same at the highest prices obtainable in violation of sees. 3 and 4 of the act of July 4, 1884, and in violation of professional duty to said clients. To this they answered as follows: “We admit that we purchased the warrants in these cases, but, in each instance, for a sum agreed to by the claimants, and we admit that we sold the warrants at the best prices which we could obtain; but we deny that, in so doing, we violated any of the provisions of secs. 3 and 4 of the act of July 4, 1884.</p> <p>“These sections of the act mentioned prohibit the demanding or receiving of compensation for services in procuring land warrants, otherwise than in accordance with the provisions of the sections. In no instance did we demand or receive any compensation for our services in excess of that fixed by the law; in every instance we bargained for the purchase of the warrants, and none of the claimants in these, or any of the other cases, could possibly have understood otherwise. We admit that our agreements were of the nature contemplated by sec. 2436 IT. S. Kev. Stat.; but, as hereinbefore stated, that section does not prohibit such agreements, but merely renders them void to the extent and in the sense that it was the privilege of the claimants at any time to repudiate the agreements; and we were powerless to enforce them against'the claimants should they set up their invalidity. To what extent our action in the premises may be deemed reprehensible, or the severe punishment threatened us be justifiable, we consider hereinafter.”</p> <p>The conclusion of the answer is in the nature of an argument in respect of legal obligations to clients, the character of said warrants and difficulty of obtaining anything for them, etc. The following is the paragraph in relation to the knowledge of and acquiescence of the department in such practices: “When we entered the field of procuring these warrants, we found an established practice, of many years’ standing, as we believe, of attorneys dealing in warrants of their own procurement, which practice we had reason to believe, and believed, was with the full knowledge of the bureau, and which not only was not the subject of any rule, but which, also, had not been made the subject of any criticism by the bureau, according to either our knowledge or surmise. Moreover, throughout our transactions in the premises, we had a representative in daily contact with the bureau, and no intimation, direct or indirect, was ever made do either such representative or ourselves, of any suspicion of impropriety in the prevalent practice. As already stated, in the fall of 1906, we first learned of the discountenance by the bureau of the practice, and immediately abandoned it, as is-evidenced by our action in the Pygall case, above stated.”</p> <p>The answer also contained the following:</p> <p>“2. It is not true that, at the time of filing the articles of agreement in any case, it was not our intention to collect a legal fee for our services, but to obtain, indirectly, greater compensation than is provided by law. It was our original and honest intention to live up to our agreements of employment, if our clients did not change our relation from that of attorney to that of intending purchaser. Had our proposition to purchase in any case been declined, we would have lived up to both the letter and the spirit of our contract of employment, and gone on with our work as attorneys to the end. The suggestion that we were taking advantage of the lack of knowledge of our clients in such matters is met by what is hereinbefore said in reply to-the immediately preceding charge and otherwise hereinbefore in relation to the provisions of secs. 3 and 4 of the act of 1884; so-much so that we hardly deem it necessary to add that it is not charged or intimated, and it is not true, that we have been guilty of the only thing in respect of which reprobation may be visited upon an attorney dealing with his client in respect of the purchase of the subject of his services, namely, the taking-advantage of the client by either misleading him by affirmative statements, or throwing him off his guard by concealing from him, or turning him away from, available sources of information to which he might resort to his advantage.</p> <p>“3. We submit that the charge that, in filing our articles of agreement, we intended to, and did, for the time being, deceive the bureau, is wholly untenable. The only thing which it was the province of the bureau to require, or which it was interested in knowing in the premises, was whether, in appearing as attorneys for applicants, we had the right so to do and were in a position to make good our undertaking in the-premises. How the ultimate disposition of the warrant, after being legally procured, could be any affair of the bureau, and how, in the premises, the bureau could be deceived, we respectfully protest our inability to appreciate.”</p> <p>On June 1, 1908, relators filed an additional answer in response to the suggestion of the Commissioner that they submit evidence in support of their answer before made.</p> <p>This answer makes substantially the same defense, and is accompanied by affidavits relating to the practice of the firm, and the knowledge of the department of the practices of attorneys, and acquiescence therein. The additional allegation is that relators have returned to each of their clients the profit made by the purchase and sale of their warrants. The following account called “exhibit refundment” was filed, with the receipts of the parties for the money returned in each case. This shows the name of the client, amount paid for warrant, amount sold for, fee paid or deducted, and balance refunded, as follows:</p> <p> </p> <p>The relators demurred to the answer of respondent. This was sustained July 3, 1908, and on July 6,1908, judgment was. entered sustaining the petition and granting its prayer for the writ. From this the respondent gave notice of appeal.</p> <p>The subsequent proceedings relating to this appeal, which form the subject of two special appeals allowed by the court, necessitate a further statement.</p> <p>The appeal was sought to be prosecuted under secs. 1000 and 1001, Rev. Stat. as an appeal brought up by the United States,, and by direction of a department of the government, without bond. The respondent had been represented in the trial by the United States District Attorney under direction of the Attorney General, and by the Assistant Attorney General for the Department of the Interior; and the appeal was by the direction both of the Department of Justice and that of the Interior.</p> <p>Upon motion of the petitioners, the court directed an appeal bond to act as a supersedeas to be filed by the respondent in the sum of $50,000. To this the respondent entered an exception.. Afterwards, the counsel aforesaid filed a notice to the clerk that the appeal prayed and taken was by direction of the Attorney General and by the Secretary of the Interior, and “is to be treated in all respects as a United States case.”</p> <p>The respondent then applied for a special appeal from the order requiring the supersedeas bond of $50,000.</p> <p>The court of appeals has three terms during the year. The first term begins on the first Tuesday of October; the second the first Tuesday after the first day of January; and the third on the first Tuesday of April in each year. The cases for submission are generally disposed of at the April term, about the middle of June, when it has been the practice of the court to keep the term open by adjournment from day to day until the commencement of the October term, so that necessary orders, may be entered during the interval as occasion may require.</p> <p>On the day that this special appeal was applied for, each member of the court was absent from the District of Columbia. The chief justice was in Clark county, Virginia, Mr. Justice Robb in Falmouth, Massachusetts, and Mr. Justice Van Orsdel was traveling in Nebraska.</p> <p>The application was submitted to the’ chief justice on July 10, and an order indorsed thereon and signed by him, allowing-the appeal. It was then sent to Mr. Justice Eobb, to whom the chief justice wrote explaining his action and ashing him, if he approved, to sign the order. This he did, and the same was returned to the clerk of the court of appeals, who filed and entered the same as directed. When certified to the trial court, it was ordered that the special appeal be granted as a supersedeas upon the appellant’s giving bond in the sum of $50,000: Exception was taken to this order, and another special appeal therefrom was prayed on July 11, and was allowed in the same manner as the former, with further order directing that the writ of mandamus be stayed without supersedeas bond.</p> <p>It does not appear from the record when and by whom the original answer to the petition was made. When the amended answer was filed, June 23, 1908, the Secretary of the Interior was absent from the District of Columbia on public business, and the same purporting to be in his name and for him was sworn to by Frank Pierce, First Assistant Secretary of the Interior and then acting as Secretary. The Secretary was absent during the proceedings aforesaid, and it seems that, when the writ was ordered to James E. Garfield, Secretary, it was directed to be served on the acting secretary aforesaid.</p> <p>It may be added that it has been the practice of the justices of the court of appeals, for a number of years, to allow special appeals and make formal orders as in this case, during the summer recess, and the power has never before been questioned.</p> <p>Motions have been filed by the appellees to vacate the orders-allowing the special appeals, and to dismiss the same, and also-the regular appeal taken from the final order in the cause.</p> <p>The grounds assigned are:</p> <p>1. The allowance of appeal is void because not made in the District and as a court, but by two members of the court apart from each other.</p> <p>2. If the orders are not void, they are not such special appeals as are within the meaning of sec. 1 of the act of February 9, 1893, giving jurisdiction to grant special appeals from interlocutory orders.</p> <p>3. Even if the orders of allowance are not void, and are ■such as may be made under said act, so much of the order as attempted to stay the writ of mandamus is void for the following reasons: (1) It was beyond the power of the court to stay the execution of the writ in view of the court’s own rules, and the general rules of appellate practice, and also under sec. 1282, D. O. Code [31 Stat. at L. 1282, chap. 854]. (2) Because the effect of the action of the court was to reverse an order of the lower court whose action can only be reviewed on an appeal regularly taken from the order of the lower court. (3) Because, on July 17, 1905, the writ of mandamus had been executed and there was no proceeding to' supersede. (4) The appeal in the main case must be dismissed because the appellant has not given bond as required by the order of the lower court and the rules of the court of appeals.</p>

Hearing on an appeal by tbe respondent, tbe Secretary of tbe Interior, from an order of tbe Supreme Court of tbe District of Columbia sustaining a demurrer to tbe answer to a petition for tbe writ of mandamus, and directing tbe issuance of tbe writ to compel tbe respondent, to vacate an order disbarring tbe petitioner from practice before tbe Department of tbe Interior; and also on motions by tbe appellee to dismiss tbe appeal and to dismiss certain special appeals taken by…

Hearing on appeals by tbe respondent, the Secretary of the Interior, from orders of the Supreme Court of the District of Columbia, sustaining demurrers to his answers to three petitions for the writ of mandamus, and directing the issuance ■of the writ to compel him to vacate orders disbarring the relators from practice as attorneys before his Department, and to restore them to the roll of attorneys; and also upon motions by the. relators to dismiss the appeals, and also to…

<p>Hearing on an appeal by tbe plaintiff from a judgment of the Supreme Court of tbe District of Columbia, on a verdict directed by the court, in an action upon a policy of life insurance.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>Plaintiff, Mary C. Eodier, as administratrix of the estate of Jeremiah K. Dee, deceased, brought this action to recover upon an insurance policy upon the life of said Dee. The defense rested principally upon two propositions:</p> <p>(1) That, as the amount due upon the policy was expressly made payable to Mary K. Dee, mother of deceased, she alone can sue upon it; and</p> <p>(2) That false statements were made in the application for the policy which relieve defendant from all liability.</p> <p>At the close of plaintiff’s evidence, verdict for defendant was directed, and this appeal ensued.</p> <p>On March 23, 1901, Jeremiah K. Dee made written application to defendant for insurance on his life. This application, among other things, contained the following:</p> <p>Pull name of person to whom, if living, policy is to be payable at death of the insured. * * * It is hereby jointly agreed, by myself and all parties in interest, or who may become interested in any policy which may be issued under this application, as follows: 1. That the statements and representations contained in the foregoing application, together with those made to the medical examiner by the person above named on whose life insurance is applied for, shall be the basis of the contract between me and the said company; that I hereby warrant the same to be full, complete, and true, whether written by my own hand or not. * * *</p> <p>' Signature of beneficiary, Mary Kearney Dee (may be signed by the applicant) per J. K. D. (initials of applicant).</p> <p>Signature of applicant, Jeremiah K. Dee. * * * I hereby declare that I am the party described in the accompanying application signed by me, and that I have given true answers to all the above questions put to me by the medical examiner, which questions and answers are considered as an essential part of the application, and as forming with it the basis of the proposed contract of insurance. Signature of person examined. Jerry K. Dee.</p> <p>The policy was issued by defendant April 10, 1901. In the policy the defendant “in consideration of the application for this policy, which is hereby made a part of this contract, promises to pay at its home office, in the city of Kichmond, Virginia, to Mary K. Dee, mother of insured; or, in event of her prior death, to the insured’s executors, administrators, or assigns, one thousand dollars, within sixty days after acceptance,” etc. Insured died October 10, 1901, having paid all premiums theretofore due upon said policy. The beneficiary, Mary K. Dee, was living at the time of the trial.</p> <p>The plaintiff, in making out her case, offered in evidence the policy without the application. Thereupon defendant objected to the admission of the former without the latter, as it appeared upon the face of the policy that the application was a part of the contract sued upon. Plaintiff contended the application was not admissible because a copy of it was not attached to the policy as required by sec. 657 of the Code [31 Stat. at L. 1294, chap. 854], The court sustained defendant’s objection, and plaintiff noted an exception to the ruling. Instead, however, of standing upon her exception, as she should have done, plaintiff, as appears from the record, thereupon “called upon the defendant’s attorneys for the production of said application referred to in the above-mentioned policy, and of said declarations or statements made to the medical examiner, which constituted a part of said application, and the defendant’s attorneys produced the same, and the plaintiff then and there offered the same in evidence together with said policy,” and they were admitted in evidence subject to objections by defendant, not necessary to be here repeated.</p>

<p>Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia, dismissing a bill in equity to enjoin the commissioners of the District of Columbia from selling complainant’s land under a special assessment for benefits, and to vacate the assessment.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from a decree dismissing the bill of appellant, Arthur Briscoe, to enjoin the sale of a lot of land in the city of Washington under a special assessment for benefits in improving a street, and to vacate said assessment.</p> <p>The cause was submitted upon bill, answer, and an agreed statement of facts.</p> <p>The necessary facts are as follows: Plaintiff was, on and before March 8, 1899, the owner of lot 15 in block 7, of the subdivision known as Bloomingdale. On that day Henry B. P. Maefarland, Henry L. West, and Jay J. Morrow, commissioners of the District, began a proceeding in the district court for the condemnation of the land necessary to the extension of Rhode Island avenue, under authority of an act .of Congress approved February 10, 1899. The act provided that one half" of the amount awarded as damages for the land condemned shall be assessed against certain lands to be benefited thereby,, lying on each side of said avenue, between certain-named streets,, and other designated squares and lots, including plaintiff’s lot. These assessments, when confirmed by the court, were declared a lien on the lands severally assessed, to be paid in five equal instalments, and collected as special improvements are collected,, under other laws, — that is to say, by sale by the collector of taxes. A jury of seven was empaneled to assess the damages and benefits. The verdict returned assessed $1,000 against plaintiff’s lot. Plaintiff was not personally cited to appear. The notice given was by publication to all property owners, as provided by law. A rule was issued to all parties whose lands had .been assessed, to show cause why the verdict should not be confirmed. Plaintiff appeared and filed objections to the award as unconstitutional, unjust, etc. The court overruled the objections and confirmed the verdict. Plaintiff appealed therefrom to the court of appeals, but subsequently dismissed the same. The collector advertised the lot for sale for the entire amount of the assessment, interest, and costs of advertising. In the meantime, Congress corrected the ambiguity in the law as to collection in five equal instalments, requiring the same to be collected in five equal annual instalments. An order restraining the sale was issued on the filing of the bill, April 14, 1902. The defendant answered the bill, and no further proceedings were had until July 6, 1907, when, after hearing upon bill, answer, and agreed statement of facts, the restraining order was discharged, •and the bill dismissed.</p>

Hearing on an appeal by tbe complainant from a decree of tbe Supreme Court of tbe District of Columbia, dismissing a bill in equity to enjoin tbe commissioners of tbe District of Columbia from selling complainant’s land under a special assessment for benefits, and to vacate tbe assessment.

Hearing on an appeal by the 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 the alleged negligent killing of the plaintiff’s intestate. The facts are stated in the opinion.

<p>Appeal and Ebbob; Appeal Bonds; Wills; Tbial; Pbocess; NonbesiDENTS.</p> <p>1. An appeal will not be dismissed on motion of the appellee, on the ground' that the appeal bond is dated prior to the date of the decree appealed from, where the record shows that, subsequent to the date of the-decree, appellee’s attorneys indorsed on the bond which had been theretofore filed, “This bond is satisfactory to be reapproved,” and the court thereupon accepted and approved the bond.</p> <p>2. The proceedings under the caveat to a will, including the final order admitting the will to probate after the trial by jury of issues framed to test its validity, will not be declared void at the instance of thecaveator, who participated in the proceedings, on the ground that there was no publication against unknown heirs until after the verdict sustaining the will. (Citing Dugan v. Northcutt, 7 App. D. C. 351, and Re Dalgren, 30 App. D. C. 588.)</p>

<p>Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia, granting á motion by the defendants to dismiss an original and amended bills of complaint, and dismissing the same without prejudice.</p> <p>The facts are stated in the opinion.</p>

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 against the sureties on a fidelity bond.

<p>Appeal and Ebbob; Cbiminal Law; Food and Dbugs; Statutes.</p> <p>1. This Court has no power to review, on writ of error to the police court of this District, a judgment of that court of not guilty, — no jury trial having been demanded by the accused, — in a prosecution for violation of the act of Congress of February 17, 1898 (30 Stat. at L. 246, chap. 25), relating to the sale of adulterated food. (Contruing see: 935, D. C. Code, 31 Stat. at L. 1341, chap. 854, and following United States v. Evans, 30 App. D. C. 58.)</p> <p>2. Qucere, whether the local pure food and drugs act of Congress of February 17, 1898 (30 Stat. at L. 246, chap. 25), has been repealed in its entirety by the national pure food and drugs act of June 30, 1906 (34 Stat. at L. 768, chap. 3915, U. S. Comp. Stat. Supp. 1907, p. 928).</p>

Hearing or an appeal by the defendants from a decree of the Supreme Court of the District of Columbia granting the relief sought in a suit in equity to establish the complainant’s title to certain… Held: notorious, exclusive, and adverse possession until his death, in. 1878, since which date plaintiff has maintained the same.

Hearing on an appeal by the petitioners, the Commissioners of the District of Columbia, from a decree of the Supreme Court of the District of Columbia sitting as a District Court, granting a motion to dismiss, and dismissing, a petition to condemn certain lands alleged to be necessary for street-extension purposes.

<p>Patents; Interference; Reduction to Practice; Arandonment.</p> <p>1. Where in an interference ease it appears that a patent was issued to one of the parties before the application of the other party was filed, the burden of proof is heavily upon the latter.</p> <p>2. A contention made by one of the parties to an interference, that, as a record was not kept of a test of the electrical device which is the subject-matter of the interference, which test is relied upon by the other party as showing prior reduction to practice, it is not likely that the test was satisfactory, is not entitled to the consideration it would otherwise receive, where the evidence of the test is clear and satisfactory.</p> <p>3. An admission by one of the parties to an interference, made at a hearing before the Examiner of Interferences, that the making and testing, by his adversary, of a device embodying the invention of the issue, on a specified date, constituted a reduction to practice, binds the party making the admission, on an appeal by him.</p> <p>4. Where the testimony in an interference case shows that the reduction to practice by the junior party was earlier than the earliest date claimed by the senior party, the junior party, even though he filed his application after the issuance of a patent to the senior party, is entitled to an award of priority, unless it affirmatively appears that he abandoned the invention, or secreted it and brought it to life only after the senior party had given it to the public.</p>

Hearing on appeals from a decision of tbe Commissioner of Patents rejecting certain claims in two reissue applications, and dissolving certain interference which had been declared.. The Court in the opinion stated the facts as follows: While separately docketed, these cases were heard together in the Patent Office as involving substantially the same questions.

<p>Appeal and Ebrob; Evidence; Ejectment; Common Source op Title; Estoppel; Deeds.</p> <p>1. Where a deed, offered in evidence by defendant in ejectment, is excluded on motion of the plaintiff, the latter cannot, on an appeal by him, rely upon it.</p> <p>2. If both parties to an action of ejectment claim under a common source of title, both are estopped from disputing title in that source, and, therefore, neither will' be heard to set up an outstanding title paramount to the common source, unless he can connect himself with it.</p> <p>3. Where the plaintiff in ejectment establishes and relies upon a common source of title, he opens his title as derived from that source to any attack which the defendants may find available.</p> <p>4. The plaintiff in ejectment cannot successfully support his title to the land in controversy by a deed from a trustee under a deed of trust securing a debt and reserving to the grantor the right of possession until default in payment of the debt, where no such default is shown. (Following Wilkes v. Wilkes, 18 App. D. C. 90, and Smith v. Sullivan, 20 App. D. C. 553.)</p> <p>5. The plaintiff in ejectment cannot recover when his title is derived from a tax deed which shows on its face that it was based upon a sale for taxes made in the names of certain parties, who the plaintiff’s own „ evidence shows were not owners of the land when the sale was made. (Following Kann v. King, 25 App. D. C. 182.)</p> <p>6. A deed by court trustees of the north half of a lot vests no title in the grantee, where, by the decree appointing them, they were authorized to sell the south half.</p>

Hearing on an appeal by the respondent, the Commissioner of Patents, from an order of the Supreme Court of the District of Columbia directing the issuance of the writ of mandamus to compel him to grant the relator permission to inspect and obtain copies of certain applications for letters patent.

Hearing on an appeal from a decision of the Commissioner of Patents rejecting certain claims in an application for a patent. The Court in the opinion stated the facts as follows: This is an appeal by Thomas M. Gardner from a decision of the Commissioner of Patents rejecting seven claims in an application for a patent.

<p>Patents; Interference; Reduction to Practice; Claims and Specifications.</p> <p>1. Where a party to an interference caused secret tests to be made of his adversary’s device with the aid of an expert who had previously testified that, in his opinion it would not operate, and claims that such tests showed that the device was inoperative, testimony tending to show the result of such tests is not incompetent, although the devices constructed for the purpose of making them were dismantled without an opportunity to his adversary to make other tests with them; but the burden is on him to show with great certainty that, in making the tests, all of the requirements of the description of the device contained in his adversary’s application were conformed to, and all steps necessary to be taken to obtain fair and correct results were taken in good faith and with great care.</p> <p>5. While the applicant for a patent is required to point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery, his specifications are not addressed to the public generally, but to those skilled in the art; and it is unnecessary for him to describe that which is common and well known.</p> <p>3. Where, in an interference involving the improvement in reverberatory furnaces, the question was whether the application of the senior party, who was the first to conceive and first to make application, disclosed an operative device, and the junior party, in attempting to discharge the burden which was on him of showing that it was inoperative, offered evidence to show that he had constructed a furnace with the improvements as described by the senior party, and the evidence of experts and others who tested the furnace, to show that the device was inoperative; but it appeared that such tests were secret, and that one of the parties assisting in making them was an expert who had previously testified that the device, in his opinion, was inoperative; and it also appeared that the furnace was dismantled without an opportunity to the senior party to make other tests with it, — it was held by this court, on a review of the evidence- and reversing the decision of the Commissioner of Patents, that the evidence of the junior party was not of sufficient weight and certainty to overcome the burden upon him.</p>

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

Hearing on an appeal by one of the parties to a trademark interference proceeding from a decision of the Commissioner of Patents refusing to register a word as a trademark for whisky» The facts are stated in the opinion.

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

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

<p>Trademarks ; Similarity of Marks.</p> <p>1. No person engaging in trade can legally adopt a trademark so resembling that of another when applied to the same class of goods as will mislead a purchaser buying with ordinary caution.</p> <p>2. Where a doubt exists as to whether a mark which it is sought to have registered as a trademark is so similar to a mark already registered as to be likely to cause confusion, the doubt will be resolved in favor of the prior registrant and user in good faith.</p> <p>3. A trademark applied to canned fruits and vegetables, and consisting of the picture of a full-length figure of a colonial military officer, accompanied by the words “Col. Willett,” held not to be registerable because of its similarity to a registered trademark consisting of a bust portrait of General Anthony AVayne in a colonial military uniform, and applied to the same kind of goods.</p>

<p>Hearing on an appeal by the opposer from a decision of the ■Commissioner of Patents dismissing a notice of opposition to an .application for the registration of a trademark, and registering such trademark.</p> <p>The facts are stated in the opinion.</p>

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

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

<p>Hearing on an appeal by the respondents from an order of tbe Supreme Court of the District of Columbia, sitting as a District Court, confirming an award of the jury in a condemnation proceeding.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal [by John C. Fay and Eva M. Fay] from an order of the supreme court of the District of Columbia confirming the verdict of a jury summoned to assess damages and benefits occasioned by the condemnation of land for an alley in block 32, Columbia Heights, in the city of Washington. On July 28, 1906, Henry B. F. Macfarland, Henry L. West, and Jay J. Morrow, commissioners of the District of Columbia, filed a petition in the supreme court for the purpose of acquiring certain land described therein for the extension and continuation of the alley in question. The petition, among other things, alleged that the commissioners deemed that the public interests required the opening and extension 'of the alley, and that the owners of more than one half of the real estate in said block had petitioned for the extension of said alley. Accordingly, an order was made directing the marshal to summon a jury to assess damages and benefits, and notice thereof was given to the property owners, as required by law. On April 15, 1907, before the jury was sworn, the appellants filed a motion to quash the proceedings, joining issue upon the jurisdictional allegations of the petition. . The court overruled said motion, and proceeded to select and qualify a jury. On April 30, 1907, a hearing was had in court before the jury, when evidence was adduced in support of the allegations of the petition. At the conclusion of the hearing, appellants moved the court to withdraw the proceedings from the consideration of the jury because of defects apparent upon the face of the record. The court overruled the motion, and received the verdict of the jury. On J une 19, 1907, the appellants filed objections and exceptions to the verdict of the jury, with a motion to vacate the verdict, based upon the following specific grounds:</p> <p>“1. That the assessment of benefits against said lots in said verdict is excessive.</p> <p>“2. That the awards of damages against said lots are inadequate.</p> <p>“3. That the verdict of said jury is contrary to the evidence.</p> <p>“é. That the verdict of said jury, is against the weight of the evidence.</p> <p>“5. Because, under the proceedings and proof in this cause,, this court has no jurisdiction to enter its judgment confirming said verdict.</p> <p>“6. Because the act of Congress under which these proceedings are had is unconstitutional in that it permits the jurors to assess in their verdict their own fees for services as jurors against the property alleged to be benefited or damaged.</p> <p>“1. For other good and sufficient reasons to be hereinafter assigned.”</p> <p>On hearing, the objections and exceptions were overruled, and the verdict of'the jury was ratified and confirmed by the court. From this order the appellants have appealed to this court.</p>

<p>Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia for one of several defendants in an action for the alleged negligent killing of plaintiff’s intestate, a demurrer by such defendant to the declaration having been previously sustained and the plaintiff having elected to stand upon his declaration.</p> <p>The Court in the opinion stated the facts as follows :</p> <p>This is an appeal from a judgment rendered in an action brought by appellant, William Gr. Cleveland, plaintiff below, as administrator of the estate of Melvin L. Cleveland, deceased, for damages sustained by the drowning of plaintiff’s intestate in the Potomac river. The action was brought against the appellee, ■George IT. Harries, brigadier general, commanding the National Guard of the District of Columbia, William E. Bloe, navigating officer, and Frank S. Durston, ensign, respectively, of the Naval Battalion of the District National Guard. The deceased was an ■enlisted man in the Naval Battalion, and the accident occurred while he was on duty as a member of the crew on a vessel on the Potomac river. The act of Congress relating to the organization of the militia of the District of Columbia, among other things, provides:</p> <p>“Sec. 19. That all officers shall be commissioned by the President of the United States. In time of peace, or when not in the service of the United States, they shall previously be ■elected or nominated as hereafter provided. No person commissioned as an officer shall assume such rank, or enter upon the duties of the office to which he may be commissioned, until he has accepted such commission and taken such oath or affirmation as may be prescribed.</p> <p>“Sec. 20. That the staff officers of a regiment or battalion shall be nominated by the permanent commander thereof.</p> <p>“Sec. 21. That field officers of regiments or battalions shall be nominated by the commanding general. Captains and lieutenants of companies shall be elected by the written votes of the enlisted men of the respective companies.</p> <p>“Sec. 22. That elections of officers shall be ordered and held under such regulations as may be prescribed by the commanding general.</p> <p>“Sec. 23. That every person accepting an election or nomination as an officer shall appear before an examining board to be appointed by the commanding general, which board shall examine said officer as to his military and other qualifications. If any officer shall fail to appear before the board of examination within thirty days after being notified, or shall fail to pass a satisfactory examination, the fact shall be certified by the board to the commanding general, who shall thereupon declare the election or nomination of such officer null and void. If, in the opinion of the board, such officer is competent, and otherwise qualified, they shall certify the fact to the commanding, general, who shall thereupon recommend him to the president for a commission.” [25 Stat. at L. 775, chap. 328.]</p> <p>It is also provided by an act of Congress approved August 3, 1894, “that the Secretary of the Navy be, and is hereby, authorized and empowered'to loan temporarily to any State, upon the written application of the governor thereof, a vessel of the Navy,, to be selected from such vessels as are not suitable or required for general service, together with such of her apparel, charts,, books, and instruments of navigation as he may deem proper said vessel to be used only by the regularly organized naval militia of the State for the purposes of drill and instruction.”' [28 Stat. at L. 219, chap. 192, U. S. Comp. Stat. 1901, p. 1055.]</p> <p>It is alleged in the declaration filed below that the defendants. Bloe and Durston were recommended by appellee for appointment in violation of the provisions of the above statute, in that they had not been elected as therein required, nor had a military examining board certified to their qualifications for the positions to which they were appointed by the President. It is then alleged that appellee ordered the U. S. S. Oneida, a steam yacht loaned by the Navy Department of the United States to the-Naval Battalion of the District of Columbia, under the .provisions of the act above quoted, to be taken on a cruise down the-Potomac river; that he, knowing that defendants Bloe and. Durston were not competent to take charge of said vessel,, ordered and directed Bloe to act in the capacity of master or-commander of the vessel and Durston to act in the capacity of first officer. It is further alleged “that the defendant Harries,, purely for his own personal gratification and pleasure, personally ordered, directed, ánd commanded to be taken or towed along-with the said U. S. S. Oneida, on the cruise aforesaid, at the-time aforesaid, a small speed launch, the property of the Naval Battalion of the National Guard of the District of Columbia.”' It is then charged that it was the duty of appellee to see that the launch was sufficiently staunch and so constructed and so. attached as to be safely towed behind the said vessel.</p> <p>The declaration then alleges at considerable length, and in. great detail, that, owing to the defective manner in which the launch was attached to the vessel and the careless and negligent-manner in which the vessel was handled, the accident here in question resulted. The deceased, it is alleged, had been ordered by Bloe and Durston to go on board the launch for the purpose of steering it, and was so engaged, in obedience to orders, when the accident happened. In one count of the declaration, appellee is charged with taking the vessel on a practice cruise down the Potomac river, and, in another count, with having-ordered the trip for his own gratification and pleasure. In the court below, appellee and Durston demurred to the declaration,, and the court sustained the demurrer as to appellee and overruled it as to Durston. Plaintiff elected to stand upon his declaration, and judgment was entered accordingly. The case-comes here as to appellee Harries alone.</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 on certain promissory notes. The Court in the opinion stated the facts as follows: This is an action in assumpsit brought by appellant, the Catholic University of America, a corporation, plaintiff below, against appellee, John F. Waggaman, the defendant, to recover the sum of $78,308.94, with interest.

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

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

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

Hearing ou an appeal from a decision of the Commissioner of Patents in an interference case. The Court in the opinion stated the facts as follows: This is an interference proceeding having the following issue: “1. In a machine for applying covering material to eyelets, means for bending tbe covering material over tbe edge of the flange of an eyelet, combined with means for forcing said bent-over material under the edge of the flange. “2.

Hearing on an appeal from a decision of the. Commissioner of Patents rejecting certain claims of an application for a patent.

<p>Patents; Anticipation; Patentability.</p> <p>In a pitless wagon-scale, the substitution of commercially rolled channels having separable brackets, that is, brackets fastened by bolts, for the cast-iron channels with integral cast brackets of a previously granted patent, does not involve patentable invention, although the change enhances the utility of the device.</p>

<p>Hearing on an appeal from a decision of the Commissioner of Patents sustaining a demurrer to an opposition to registration of a trademark.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from the decision of the Commissioner of Patents sustaining a demurrer to an opposition to the registration of a trademark.</p> <p>On May 22, 1907, Adam Brandau filed an application for the registration of a trademark used on molder’s shoes manufactured of leather and asbestos. The description and the drawing filed with this application show the picture of an ass, above which, in a curved line, appear the words, “A Brandau’s” in large printed letters. In a straight line, across the figure of the ass, appears the word “Asbestos,” in large printed letters, and in smaller letters, immediately under the same, appears the word “Fireproof.” Below the figure appear the words, in a curved line and in large printed letters, “Molder’s Shoes.”</p> <p>The application was passed for allowance after the required publication, and on August 19, 1907, Charles W. Johnson filed an opposition thereto. In this he alleges the use of the word “asbestos” as a tradename applied to boots and shoes of heat-resisting fireproof qualities, since early in 1903; and the registration of the tradename “Asbestos Shoe” under the laws of many of the States. That his shoe has been known from the first a« fh.o “Asbestos Shoe.” That these shoes have been designed especially for tbe molder’s trade, and are well known to the trade as the “Molder’s Original Asbestos Shoe.” That the applicant, .Brandan, well knew of opponent’s sole and exclusive use of the word “asbestos” as a tradename applied to boots and shoes, and used this word as a part of the trademark for which he has made application for registration for the purpose of securing trade already established by opponent among molders for his “Asbestos Shoe.” He further says that, having a large and constantly increasing trade in the several States in which his trademark has been registered, if applicant is allowed to register his trademark containing the word “asbestos” his use thereof would greatly damage opponent’s business. The applicant demurred to this statement of opposition on the following-grounds: (1) It appears by the opponent’s showing that he is not entitled to the relief,prayed; (2) it appears by said opposition that opponent alleges that if applicant is permitted to use-the word “asbestos,” or “Asbestos Shoes“By what authority has the opponent the exclusive right to use the word ‘asbestos,’ or the words ‘Asbestos Shoe?’ The word ‘asbestos’ is a common, word, as is also the word ‘shoe.’ The word ‘asbestos’ alone, as applied in this case, is descriptive, and if not descriptive it is deceptive, and if either descriptive or deceptive is not register-able subject-matter for .trademark registration in the United States Patent Office.” (3) That applicant does not claim the word “asbestos,” or the words “Asbestos Shoe” to be the essential feature of his trademark, and the Commissioner has no right to determine which feature is the essential one of applicant’s mark.</p> <p>The Examiner expressed the opinion that the word “asbestos” as used by the applicant is descriptive, because he describes his goods as made of leather and asbestos. That as the opponent does not state the material of which his shoe is made, the word as employed by him is, if not descriptive, deceptive. That as the word “asbestos” is the only matter in common between the parties, and cannot be exclusively appropriated by either, but may be used by anyone, it is not seen how the opposer can be damaged by the registration of the applicant’s mark “which contains this word as an element.” He expressed the further opinion that “asbestos” is not the essential feature of the applicant’s mark. “There is other matter in the mark which is far more striking that the word ‘asbestos,’ and the fact that the applicant happens to use this descriptive term in conjunction with other matter does not render the mark as an entirety unregisterable.” He then sustained the demurrer, and adjudged the applicant entitled to registration.</p> <p>On appeal to the Commissioner this decision was affirmed. The Commissioner discussed the question at greater length, but took substantially the same ground as the Examiner. After quoting some of the provisions of the statute, he said:</p> <p>“By virtue of this provision of the statute, registration of a trademark is permitted where the controlling and distinguishing feature of the mark is an arbitrary symbol, although such symbol may be accompanied by accessories which in themselves are not registerable. This being the case, it follows that, although the opposer may show that he has used the word ‘asbestos’ since 1903, which is prior to the alleged date of adoption of the applicant’s mark, in connection with goods of the same descriptive properties as those sold by the applicant, such use would not prevent the registration by the latter of a mark which includes the word “asbestos” merely as a descriptive and subordinate feature, since any manufacturer of asbestos goods has the right to describe his goods by that term, and the inclusion of this-word by the applicant in his trademark would not cause legal damage to the opposer.”</p> <p>*****•»**«■</p> <p>“The second ground of the notice of opposition raises a question of unfair competition, which it is well settled will not be considered in any opposition proceeding.</p> <p>“It is also urged by the opposer that, the applicant having admitted by his demurrer that the word “asbestos’ is descriptive, registration of the mark should be refused. This is not one of the grounds of opposition, and the question is not, therefore, before me, but it may be noted that the applicant is not seeking to regist the word ‘asbestos’ alone. Upon the contrary, the word 'asbestos’ as disclosed in the applicant’s mark is merely an accessory, and not the controlling feature of the mark.”</p>

Hearing on an appeal from a decision of the Commissioner of Patents denying an application for registration of a trademark. The Court in the opinion stated the facts as follows: This appeal is from the denial of registration to the words “Mountain Dew” as a trademark for whisky. The application of Charles Dennehy & Company, a corporation, filed June 15, 1905, alleged the use of the words as a trademark for whisky in commerce among the States continuously since the year 1882.

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

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

<p>Patents; Counsel; Practice; Interference; Reduction to Practice; Originality.</p> <p>1. The practice of counsel in patent cases in filling the record with immaterial, irrelevant, and useless matter, reprobated by the Court as entailing useless expense upon their clients and needless labor upon the tribunals of the Patent Office and upon this court. Objections should be stated in few words, and unnecessary repetition of testimony avoided.</p> <p>2. In an interference ease involving the invention of a four-party-line indicating key for telephone switch boards, it was held, on a review of the evidence, that a sample key made by the junior party contained the indicating feature of the issue, which was the essence of the invention, and that the making of the key constituted a reduction of practice, for the reason that the operativeness of the device would be apparent to anyone skilled in the art.</p> <p>3. In an interference case in which the real parties in interest were rival telephone-supply companies, the assignees of the junior and senior parties, involving the invention of a four-party-line indicating key for telephone switch boards, where it appeared, among other things, that the junior party, about four or five years before he filed his appliea-’ tion, devised a key embodying the invention of the issue, and exhibited it to the engineers of his then employer, an electric company; that the senior party was in charge of the laboratory of the company, interested in such devices and in a position to have seen the one in question, and testified he saw it, and disclaimed to have invented it; that the senior party’s application, assigned to his employer on the day it was made, did not originally contain the claim of the issue, but that claim was subsequently inserted by his assignee without his knowledge, — it was held that the junior, and not the senior, party was the original inventor.</p>

Hearing on an appeal from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover damages for alleged personal injuries. The Court in the opinion stated the facts as follows: This case in all its essential details was here fourteen years ago (District of Columbia v. Brewer, 7 App. D. C. 113), and it was then held that the plaintiff, Harrison G. Brewer, appellee here, had no right of action because of his contributory negligence.

Hearing on an appeal from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action of assumpsit. The Court in the opinion stated the facts as follows: The plaintiff, William F. Andrews, appellee here, brought this suit against the defendant, the Haller Wall Paper Company, for the sum of $122.20 alleged to be due on a verbal contract entered into with the defendant to paper and repair certain rooms in the Raleigh hotel in this city.

<p>. Hearing on an appeal by tbe complainant from a decree of tbe Supreme Court of the District of Columbia, sustaining a demurrer to a bill in equity to enjoin the Secretary of the Interior and the Commissioner of the General Land Office from issuing patents for certain public lands, discharging a rule to show cause why a temporary restraining order should not be granted, and dismissing the bill. '</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from a decree in a suit brought in the supreme court of the District of Columbia wherein the appellant, Gus II. Beaulieu, complainant below, sought to enjoin James B. Garfield, the Secretary of the Interior, and Fred Dennett, the Commissioner of the General Land Office, from issuing patents to the State of Minnesota to certain lands under the swamp and overflow land act of March 12, 1860.</p> <p>The bill alleges that the appellant is a mixed-blood Chippewa Indian and a member of the band, or consolidation of bands, commonly known as “the Chippewa Indians in the State of Minnesota,” and that he brings this suit in his own right and in behalf of other members of said bands jointly interested with him in this action; that the Chippewa Indians are equitable owners of large tracts of land in the State of Minnesota secured to them by the terms of the treaties of August 19, 1825, February 22, 1855, March 11, 1863, May 7, 1864, and March 19, 1867, and confirmed to them by the acts of Congress approved January 14, 1889, and the acts amendatory thereof approved August 19, 1890, and June 27, 1902; that, under the acts of January 14, 1889, and those amendatory thereof, the lands are held in trust by the United States for the beneficial use of said Indians, and that the title to said lands is claimed by said Indians to have been uninterruptedly in them from time immemorial. It is alieged that the Secretary of the Interior has already approved for patent certain lists of the lands so owned by said Indians, and threatens to direct the Commissioner of the General Land Office to issue patents to the State therefor; “that the said threatened action is without warrant in law, is in violation of the rights of this plaintiff and the other said Indians, guaranteed to them under the said treaties, agreements, and acts of Congress, and is subversive of the trust created as aforesaid for the said Chippewa Indians;” that, if the threatened action is carried into effect, the complainant and his associates will be deprived of upwards of 100,000 acres of land without due process of law; that the threatened injury is imminent and its effect irremedial, and that plaintiff and his associates have no adequate remedy at law or other process of jurisdiction which may be invoked for the protection of their property rights.</p> <p>Defendants demurred to the bill, first, on the ground that the suit is, in effect, a suit against the United States; second, that it does not appear there is any right, title, or interest in complainant to any lands with respect to which relief is sought; third, that the court is without jurisdiction to interfere with these defendants as officers of the United States in their decision as to the distribution of the lands mentioned, so long as the legal title to the lands remains in the United States; fourth, that the defendants are sued in their official capacity with regard to matters entirely removed from the province of the courts, and the court is, therefore, without jurisdiction to control their discretion or judgment in the premises; and, fifth, that it is sought to enjoin the defendants from turning over certain lands to the State of Minnesota, and to prevent the State of Minnesota from acquiring said lands, and that the State would be affected by any decree entered herein, and is, therefore, a proper party to this action.</p> <p>In response to the rule to show cause, the defendants answered, admitting that complainant is a mixed-blood Chippewa Indian and a member of the consolidated bands referred to in the various acts of Congress providing for the relief and civilization of the Chippewa Indians in Minnesota; but they deny the right of the complainant to exhibit his bill against the defendants, pointing out that he has failed to designate what particular lands are threatened to be turned over improperly to the State, and they deny that the Chippewa Indians are the equitable owners or have any title whatever to all of the said lands in the State of Minnesota claimed to be secured to them by successive treaties.</p> <p>The answer further alleges that the lands referred to in the bill of complaint were originally part of the country occupied by the several bands of Chippewa Indians in the northern part of the territory now embraced in the State of Minnesota, and that a treaty was concluded with these Indians February 22, 1855, by which the Indians ceded all their right and title to a large body of the lands formerly occupied by them, including such lands as would be affected by the decree prayed iu this suit. It is alleged that, under the act of Congress of March 12, 1860, extending the provisions of the swamp land act of September 28, 1850, to the State of Minnesota, the lands here in question became vested in the State of Minnesota and the identification of the particular lands granted as swamp and overflow lands was left to the determination of the Secretary of the Interior. It is further alleged that the Secretary of the Interior, in determining the lands granted by the act of March 12, 1860, has threatened no action which is without warrant of law, or which is in violation of the rights of complainant or other of said Chippewa bands of Indians; and defendants deny that any action has been commenced by them which would deprive the complainant and his associates of any lands to which they are legally entitled.</p> <p>It is further alleged “that the whole matter of selecting the lands which are swampy in character and which may be disposed of in conformity with the swamp-land-grant act of March 12, 1860, and the selection of such lands as may be disposed of and the proceeds thereof devoted to the benefit of the said Chippewa bands, are matters placed by law within the province of the Secretary of the Interior, and are to be decided by his sound discretion, and involve the necessity of his consideration and judgment; and with the exercise of this discretion and judgment this court has no jurisdiction to interfere.” The cause was heard in the court below upon bill and answer and the demurrer of defendants. The court entered a decree discharging the rule to show cause, sustaining the demurrer and dismissing the bill. From this decree, the case comes here on appeal.</p>

<p>Hearing on an appeal by the defendant from an order of the Supreme Court of the District of Columbia overruling a motion to vacate a judgment in an action which originated in a Justice of the Peace Court.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This suit was originally brought in a justice’s court, where, after several continuences, a default judgment was entered for the plaintiff, Harry Darling. On motion of the defendant, Alice Hallowell, the justice reopened the case, and, after further continuances, again entered a default judgment for plaintiff. Prom this judgment the defendant, appellant here, noted an appeal to the supreme court of the District.</p> <p>The record discloses that. the appeal bond was approved March 2, 1908. On March 16, 1908, the defendant having failed to prosecute her appeal, the plaintiff, appellee here, made deposit for costs, and moved for affirmance of judgment under rule 97 of the common-law rules of the supreme court of the District, which motion was granted by that court. Subsequently, on March 19, 1908, defendant filed a motion to vacate the judgment on the ground that said judgment was obtained by (1) deceit, (2) irregularity, (3) surprise, (4 and 5) that the judgment inadvertently disposed of defendant’s claim of set-off, and (6) for other reasons appearing in the proceedings and on the face of the record. The court, upon consideration of this motion, overruled the same, and the defendant thereupon noted, an appeal from such ruling.</p>

Hearing on an appeal by tbe complainant from a decree of tbe Supreme Court of tbe District of Columbia, sustaining a demurrer to a bill in equity for an injunction, discharging a rule to show cause why a temporary restraining order should not be granted and dismissing tbe bill of complaint.

Hearing on appeals by tbe defendants in two actions of ejectment wliich were consolidated, from a judgment for the-plaintiff upon an agreed statement of facts, a trial by jury having been waived. Held: intervened in said causes, and was, by order of the court, made a party defendant therein. The defendants pleaded the general issue, to which there was a replication, and the cases were consolidated and heard by the court,, without a jury, on an agreed statement of facts.

<p>Patents; Specifications and Claims; Reissue; Interference; Former Adjudication; Collateral Attack.</p> <p>1. To warrant new and broader claims in a reissue, such claims must not be merely suggested or indicated by the original specifications, drawings, or models; but it must further appear from the patent, that they constitute parts of the invention which were intended to be covered by the patent. (Distinguishing Re Briede, 27 App. D. O. 298.)</p> <p>2. An award of priority in an interference proceeding is not res judicata of the subject-matter of a subsequent interference between the same parties, when the later interference was declared between a reissue application of the party so awarded priority and a patent granted the other party, and in such second interference it has been decided that the reissue claims were not warranted by the drawings and specifications of the original patent.</p> <p>3. An applicant for a reissue is not barred from stating in his reissue claims new functions of his invention because such functions were not set forth in his original application, where all of the elements of the invention were shown in his original drawings. (Following Re Briede, supra.)</p> <p>4. A .judgment obtained by fraud or duress must be attacked in a direct proceeding, and not collaterally.</p>

<p>Patents; Interference; Appeal and Error.</p> <p>Where the record in an interference case shows that, a year after the-declaration of the interference, judgment of priority was awarded by the Examiner of Interference to the senior party because of the failure of the junior party, after due notice, to file a preliminary statement, and there is nothing in the record to show that an injustice was thereby done to the junior party, a decision of the Commissioner of Patents awarding priority to the senior party will be affirmed. (Following Hallowell v. Darling, ante, 405.)</p>

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

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action for breach of a contract of sale.

<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 Court in tbe opinion stated tbe facts as follows:</p> <p>Tbis action was begun by tbe appellee, Mary Lukens, to recover damages of tbe Washington, Alexandria, & Mt. Vernon Railway Company for injuries sustained by ber, as tbe result of a collision of cars.</p> <p>Tbe declaration is in two counts. Tbe first count alleges that plaintiff entered tbe car as a passenger at Mount Vernon station, to be carried to Alexandria on March 11, 1905. That, about 1 mile from Mount Vernon, tbe car in which she was seated collided through tbe negligent operation of tbe same with another car that bad been negligently left standing on tbe single track. That plaintiff was thrown violently against tbe seats of tbe car and tbe floor, and received certain bruises and hurts from which she suffered great bodily pain for a long time thereafter, to ber damage in the sum of $5,000.</p> <p>The second count repeats the allegations of the first in respect of entry as a passenger and the collision of the cars through negligence, and then alleges that the defendant negligently failed to furnish plaintiff transportation to her destination for a period of more than three hours after said collision. That the-place of the accident was remote from any proper shelter or protection from the weather, which was then cold, and during the said period, before further means of transportation was provided, plaintiff, through failure of defendant to furnish any protection from the weather, was exposed to the cold. That, as a consequence of such exposure, plaintiff then and there contracted a severe cold and disease of the throat and lungs which resulted in the loss of her voice. That, through the same cause, she became sick and has so remained and will continue to remain in the future, and has suffered and will continue to suffer great pain. That, as a result, she has lost her occupation as a schoolteacher, and 'the sum of $400 which she would have derived therefrom. That she has been forced to expend a large sum of money, to wit $700, in and about endeavoring to be cured of her sickness. Damages are laid at $5,000.</p> <p>Defendant demurred to the second count, and pleaded not guilty, and contributory negligence on the part of the plaintiff' to the first one. This demurrer was overruled, and, reserving an exception thereto, a like plea was entered to the second count.</p> <p>The testimony tended to show that plaintiff left her home about 2 miles from Mount Vernon and arrived there about 7:30 in the morning of the 11th of March, 1905. The temperature was a little below freezing point. She rode in a covered wagon, the front of which only was open. There was no draft, and she was well wrapped in blankets. She remained in the Mount Vernon station about half an hour before the car left, which was-8 o’clock. It is about 8 miles from Mount Vernon to Alexandria. About three quarters of a mile from the station the car at high speed ran violently into another which had been left on the track at a curve. The glass of the cab, where the motorman stood, was shattered and the platform broken; rattan cushions were hurled from the seats. Plaintiff was thrown from her seat to the floor upon her knees, and the back of the seat in front struck her across the chest. The rattan seat on which she had been sitting flew' up and hit her in the back. There were some milk cans in the car which overturned and milk ran down the floor. There was a considerable embankment at the place of •collision. There were four other passengers, all men. One of these had driven the wagon from plaintiffs home. Plaintiff was frightened and left the car with the other passengers. Neither she nor they again entered the car, and she was not asked to do so by any of defendant’s employees. The ear was being used in an attempt to get the other back on the rails. Plaintiff stood outside on the ground for about three hours, before she was taken to Alexandria in the wrecking car which came out to the place in about three quarters of an hour after the accident. The frozen ground soon began to thaw7, and plaintiff’s feet became very cold and her body chilled. The nearest house was Mount Vernon station. All of the passengers remained outside until the car took them on. Plaintiff was in good health at the time. Had been engaged in teaching school for eight years, and had a good voice. She contracted a severe cold from which she lost her voice and was only able to whisper. She made an effort to teach the next week, but was unable to do so, and had to give up her employment which ran until May, and her salary was $42 per month. Plaintiff was treated by physicians for laryngitis, and during May and June was treated by an eminent specialist in Washington, who advised her to go for treatment to Saranac lake. She remained there about fifteen months. In about six months she began to regain her voice, but it has never regained its original strength. She expended several hundred dollars in sanatoriums and medical charges.</p> <p>Three physicians were called who had treated plaintiff after the accident. Her complaint developed into laryngial tuberculosis. These expressed the opinion that the probability was that she contracted laryngitis from the cold and standing on the wet ground. They testified also that laryngitis can be a primary cause of tuberculosis.</p> <p>Defendant introduced testimony tending to show that the wrecking car was telephoned for speedily/ and came out in about forty minutes. That plaintiff could have been reasonably protected by re-entering it, and was invited to do so. That it took about forty or fifty minutes to put the car on the track.. That the detention was not over one hour and three quarters. That it was about five minutes walk back to Mount Vernon station, which was around the curve and out of sight.</p> <p>Dr. Eichardson, who had treated plaintiff and recommended her going to Saranac, testified for defendant. He treated her for laryngial tuberculosis in April, 1905. That this disease is a secondary condition, and it is almost impossible to say how far the primary condition would have advanced before the secondary condition appeared during the progress of the disease; probably a month or more. Tuberculosis is an infectious disease supposed to be due to the action of the bacillus of tuberculosis. If exposure were to give rise to inflammation in the pulmonary or other tissues, it might be a remote producing cause, but would not be a direct or proximate cause. The witness then expressed the opinion that plaintiff having stood upon the ground near Mount Vernon two or three hours with the sun shining and the temperature varying from 30 to 40 degrees, the exposure would not have directly brought about the physical condition which he observed in April. On cross-examination he said that the exposure could produce hoarseness and trouble with the throat, but not the tubercular condition. On redirect examination he said that in his opinion the tubercular condition existed prior to March 11, 1905.</p> <p>Another physician testified that he had never known larynigial tuberculosis to develop in a few hours following-exposure to cold weather. Cold, fresh air is the recognized treatment of tuberculosis. It is the treatment at Saranac, where the patients are kept out doors in a temperature 30 degrees below zero. That a person out between six and seven in the morning would be more liable to cold in a short time than for a longer period later in the day when the sun is up. That driving is more dangerous than walking or standing around, because of the draught created. On cross-examination he said: The most important thing is to keep patients of the kind indicated out of draughts and dampness. They are wrapped up.</p> <p>In rebuttal, plaintiff introduced one of the passengers who was with her all of the time, and said that none of defendant’s employees asked plaintiff to get in the car.</p> <p>Upon the conclusion of the evidence, the defendant moved the court to direct a verdict on the second count, which was refused. The defendant then requested the five following instructions:</p> <p>“4. The jury are instructed'that an act is not to be deemed the natural and proximate cause of an injury unless the injury was such a consequence of the act as, under the surrounding circumstances of the case, might and ought to have been foreseen and anticipated by an ordinarily reasonable and prudent man as reasonably likely to flow from the act.”</p> <p>“9. The jury are instructed that the defendant is only liable for the natural, proximate, and probable consequence of its act, neglect, or default; and that it is not liable for any indirect, or remote, or unexpected consequence resulting therefrom.</p> <p>“10. In this case, plaintiff, in her second count, charges that, upon the occasion in question, she contracted a 'severe cold and disease of the throat and lungs, which said cold and disease of the throat and lungs resulted in loss of voice;’ and that the same was caused by the negligence of defendant. In order to recover herein, plaintiff must establish by a preponderance of the evidence that she sustained and suffered those injuries as the natural and proximate result of such negligence of defendant; that is to say, that the injury was one that could or should reasonably have been foreseen or anticipated by the defendant upon the occasion in question, and that there must have been no-other culpable, efficient, and self-operating cause or agency intervening between the negligence of defendant and the injury to-plaintiff. If, from the whole evidence, the jury shall find that the injuries sustained by plaintiff were not the natural and proximate result of any negligence of defendant, as just defined; or if they shall find that such injuries to plaintiff were occasioned, or directly contributed to, by her in any degree, by her failure' to exercise aud use ordinary and reasonable care and prudence for her own safety upon the occasion in question, — in either such event the verdict of the jury must be for the defendant.</p> <p>“10%. The jury are instructed that, upon the occasion in question, plaintiff was bound to exercise and use ordinary and reasonable care and prudence in conducting herself after the certain collision referred to in this case, which delayed her transportation to the city of Alexandida; and, if they believe from all the evidence that the injury and damage claimed to have been sustained by plaintiff are the result, either in whole or in part, of want of ordinary and reasonable care on her part, in failing to avail herself of such means of shelter and protection from the weather as were then and there at hand, or which were nearby, provided you find that there were such means of shelter and protection from the weather either immediately at hand or near by, then and in such event, plaintiff cannot recover.”</p> <p>“13. The jury are instructed that, in the event they shall find that plaintiff is entitled to recover herein, no allowance can be made to plaintiff for consumption or tuberculosis of the throat and lungs, or either, in the event the jury shall find that plaintiff did in fact contract such disease; nor for any loss of time or expense incurred by plaintiff in endeavoring to be cured of such disease; since that disease, as has been testified to by physicians, does not necessarily, reasonably, and naturally follow from mere exposure to cold.”</p> <p>The court refused those numbered 4, 10, and 13. He gave No. 9, after striking out the word “unexpected” following the word “remote” in the last line.</p> <p>That numbered 10% was given after striking out the words "“or near by,” which followed the words “at hand” in both the tenth and the last line. Exceptions were taken to the action of the court on each instruction.</p> <p>The following extracts from the general charge bear on the issue raised on the second count of the declaration and the evidence relating thereto:</p> <p>“In the event that you should find the defendant to have been guilty of negligence on the occasion complained of, it is nevertheless incumbent on the plaintiff to establish by such preponderance of the evidence that she was in fact injured and damages as the direct, natural, and proximate result of the negligence of the defendant, and in the manner complained of in the declaration, as well as the extent of any such injury and damage, because the defendant is only liable for the natural, proximate, .and probable consequence of its act, neglect, or default, and it is not liable for any indirect or remote consequence resulting therefrom.</p> <p>*•***•***■»</p> <p>“The plaintiff charges in the second count of her declaration that, upon the occasion in question, she contracted a severe cold and disease of the throat and lungs, which cold and disease of the throat and lungs resulted in loss of voice, etc., and that the same was caused by the negligence of the defendant. In order to recover in this suit under this count, the plaintiff must establish by a preponderance of the evidence that she sustained and suffered these injuries as the natural and proximate result of such negligence of the defendant, and that there must have been no other culpable, efficient, and self-operating cause or agency intervening between the negligence of the defendant and the injury to the plaintiff. If from the whole evidence you should find that the injuries sustained by the plaintiff were not the natural and proximate result of such negligence of the defendant, or you shall find that such injuries to the plaintiff were occasioned, or directly contributed to, by her in any degree/ or by her failure to exercise and use ordinary and reasonable care and prudence for her own safety upon the occasion in question, in either of such event the verdict shall'be for the defendant. Or, again, if you are unable to determine whether the injuries complained of by the plaintiff in the second count were caused by the negligence of the defendant, whether the same were occasioned, or in any degree directly contributed to, by the negligence of the plaintiff, or whether the same were caused in some other manner, or upon some other occasion, than that alleged in the declaration, in such event the verdict of the jury must be for the defendant.</p> <p>********</p> <p>“If you find from a preponderance of the evidence that the physical condition from which the plaintiff was suffering in May, following the collision, — that is, at the time she was examined by Dr. Charles W. Kichardson and directed to go to Saranac in the Adirondacks for treatment, — was the direct, efficient, and proximate result of exposure to the cold and inclement weather to which the plaintiff was subjected at the time of the accident, and was not the result of any other efficient, self-operating cause intervening between the negligence of the defendant and the injury to the plaintiff; and if you further find that such exposure Avas caused by the negligence of the defendant in failing to provide her reasonable, prompt, and proper means of transportation to her destination, or reasonable, proper, and suitable protection against such exposure during her detention at the place 'of collision Avhile waiting for the car, or other proper means of transportation to her said destination, and that the exposure of the plaintiff to the weather was not caused by her failure to exercise reasonable and proper care and diligence to avoid such exposure, — then it will be your duty to find that the plaintiff’s physical condition was the direct, efficient, and proximate result of the defendant’s negligence; and, in that view of the case, your verdict should be for the plaintiff under both counts.”</p> <p>The jury returned a verdict for the plaintiff for $100 on-the first count and $2,000 on the second.</p> <p>Defendant filed a motion in arrest of judgment on the second count, on the grounds, first, that the second count- set up no cause of action, and, second, that the damages thereunder are such as are not legally chargeable to defendant.</p> <p>This and a motion for new trial were denied, and judgment entered upon the verdict.</p>

<p>'Custom and Usage; Certificates op Stocks; Torts; Trover; Brokers.</p> <p>1. The general custom or usage existing in the District of Columbia whereby the holders of certificates of stock assigned in blank are regarded by bankers, brokers, and others dealing in stock certificates as the owner, for the purpose pf selling and pledging such certificates, is one that rather follows the established law than sets up a new and independent rule governing such transactions.</p> <p>U. While certificates of stock assigned in blank by the owner are not negotiable instruments in a strictly legal sense, they so approximate them that the ordinary rules of agency and estoppel which apply to the case of chattels are applied to them with great liberality in behalf of bona fide purchasers for value.</p> <p>3. The provision on a certificate of stock, that the shares it represents shall be transferable only on the books of the corporation by the registered owner or by his attorney upon the surrender of the certificate, is intended for the convenience and security of the corporation alone.</p> <p>4. Where'the named owner of a stock certificate executes a transfer thereof in blank, and delivers it to a broker or agent for certain limited purposes, and the broker or agent, in violation of his duty and obligation to the depositor, delivers it to another person without notice and for valuable consideration, the purchaser takes a good title; but where such a certfiicate has been stolen from the owner without culpable negligence on his part, an innocent purchaser from the thief or his assignee takes no title.</p> <p>5. Where a. loss has occurred through the wrongful act of a third person, and must be borne by one of two innocent persons, the one who by his negligence or inadvertence has placed it in the power of the third person to perpetrate the wrong must suffer the loss. (Following Carusi v. Savary, 6 App. D. C. 330; Fifth Cong. Church v. Bright, 28 App. D. C. 229; and Central Nat. Bank v. National Metropolitan Bank, 31 App. D. C. 391, 17 L.R.A.(N.S.) 520).</p> <p>6. Where an employee of a trust company, one of whose duties is to deliver stock certificates deposited with the trust company by borrowers as collateral security for their loans, fraudulently procures such certificates, which had been assigned in blank by the owner, from an officer of the company on the false representation that the borrower desires to pay his loan, and sells them through a stockbroker, who believes him to be the owner thereof, and converts the proceeds to his own use, the title to the certificates passes to a bona fide purchaser for value from the broker, — especially where, by general usage and custom, possession of such certificate is recognized as evidence of ownership' and authority to sell.</p> <p>7. Where the sale through a stockbroker of certificates of stock assigned in blank and placed in his hands for sale, by an employee of a trust company who had fraudulently obtained possession of them from officers thereof, passes title to a bona fide purchaser for value, the broker will be afforded equal protection, and is not liable in trover to the trust company for the alleged conversion of the certificates.</p>

Hearing on an appeal by tbe plaintiff from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action for malicious prosecution. The Court in the opinion stated the facts as follows: This is a suit brought by appellee, James L. Hudson, also known as James Hudson, plaintiff below, to recover damages against the appellant, Thomas H. Pickford, for malicious prosecution.

Hearing on appeals from two judgments of the Supreme Court of the District of Columbia, on verdict, the causes having been consolidated for trial, in actions on a stock subscription agreement. Held: the president stated that the demand of the trust company that the first payment should be called and made. Pursuant to adjournment another meeting was held on October 27, the minutes of which recite: Alexandria, Va., October 27, 1906.

<p>Pensions; Firemen; Statutes.</p> <p>1. Under the acts of Congress of February 25, 1885 (23 Stat. at L. 317, chap. 145), and June 11, 1896 (29 Stat. at L. 405, chap. 419), requiring the commissioners of the District of Columbia to deduct $1 each month from the pay of each fireman for the creation of a relief fund from which a pension shall be paid firemen so permanently disabled from injuries or disease contracted in the line of duty as to be discharged from the service therefor, a fireman discharged for such a cause, and pensioned, does not acquire a vested property right to his pension which cannot be devested by a subsequent act of Congress.</p> <p>2. The requirement of the act of Congress of May 26, 1908 (— Stat. at L. —), that police and fire department pensioners of the District shall, within thirty days after the passage of the act, and every two years thereafter, undergo a medical examination, upon the result of which the commissioners shall determine whether the pension being paid in each case shall continue in whole or in part, is a reasonable one, and, on such a pensioner’s failure to submit to such an examination when notified to do so, the commissioners have the right to discontinue his pension.</p> <p>3. A notice by the commissioners to a fire department pensioner to appear before the board of police and fire surgeons on a specified date and hour, and submit to the examination provided for by the act of May 26, 1908, is a sufficient notice, and the commissioners are justified in discontinuing the pension of such a pensioner on his failure to appear before the board, without notifying him further to appear and show cause why an order should not be made discontinuing the payment of his pension; it not being within the power of such a pensioner to defeat the operation of the statute by refusing to appear before the medical board.</p>

<p>Trademarks.</p> <p>1. Registration of the word “Nextobeer,” as a trademark for a malt beverage containing 2 per cent alcohol is properly refused by the Commissioner of Patents on the ground that the mark is descriptive of the character or .quality of the goods upon which it is used.</p> <p>2. By the trademark act it is intended to limit the selection of marks for . registration to mere arbitrary words or designs, the value of which will consist alone in their becoming fixed in the public mind through continued use on the goods of the owner, and not to permit marks to be registered which are such as will in themselves enhance the sale or value of the article to which they are applied.</p>

Hearing on an appeal by the United States from an order of the Supreme Court of the District of Columbia admitting an applicant for naturalization to citizenship. The Court in the opinion stated the facts as follows: This is an appeal from a judgment of the supreme court o± the District of Columbia admitting the appellee, Thomas Daly, to citizenship.

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

<p>Appeal and Ebbob; Discretion; Motion to Dismiss Appeal; Amendment.</p> <p>Where the clerk of the lower court by mistake issues a citation on an appeal by two parties in the name of one only, and at the suggestion of appellant’s counsel, but without leave of the court and without notice to opposing counsel, amends the citation by inserting in it the name of the other appellant, it is within the discretion of this court to determine whether the appeal shall be dismissed. (Following Slater v. Hamacher, 15 App. D. C. 294, and distinguishing Taylor v. Leesnitzer, 31 App. D. C. 92.) And under such circumstances the appeal will not be dismissed, but the amendment by the clerk, although made without authority, will be adopted as if made in this court.</p>

<p>Hearing on an appeal by tbe complainant from a decree of tbe Supreme Court of tbe District of Columbia, bolding an equity court, dismissing a bill for specific performance.</p> <p>Tbe facts are stated in tbe opinion.</p>

Hearing on an appeal from a decree of the Supreme. Court of the District of Columbia sitting as a court of equity, canceling a deed of trust note, directing a release of the deed of trust securing the same, and establishing a lien upon certain real estate. The Court in the opinion stated the facts as follows: Francis M. Cox filed this bill against John W. Babson, Thomas R. Martin, Lee R. Martin, Guy H. Johnson, Joseph D. Sullivan, and George W. Evans.

Hearing on an appeal by the defendant from a judgment of tbe Supreme Court of the District of Columbia on verdict in an action to recover damages for personal injuries. The Court in the opinion stated the facts as follows: Clarence M. Cooper brought this action against the City & Suburban Railway to recover damages for injuries received through the negligence of the defendant, and recovered a judgment for $320, from which the defendant has appealed.

<p>Appeal and Error; Motion to Dismiss Appeal; Parties; Eminent-Domain.</p> <p>1. On an appeal by the municipal authorities from an order confirming an award of the jury in a proceeding to condemn land for street-extension purposes, although the record failed to show that any notice of appeal was given in open court, or that a citation on appeal was issued, this court, while directing attention to the fact that the court,, by reason of such omission, might decline to entertain jurisdiction, did so, in the absence of a motion to dismiss on that ground.</p> <p>2. A motion to dismiss an appeal, made by one of several appellees in a proceeding to condemn land, was granted on the ground that such appellee must have been included in the appeal by inadvertence, as there was nothing to show that there had been any assessment of benefits or damages on account of property owned by her.</p> <p>3. Where the commissioners of the District of Columbia, after confirmation. of an award of damages in favor of property owners and an assessment of benefits against lands of other property owners, in a proceeding to condemn land for street-extension purposes, pay the amount awarded as damages, collect the benefits assessed, and take-possession of the condemned land, they have no right of appeal from the order of confirmation; and such an appeal will be dismissed on motion by the property owners, supported by affidavits showing that the judgment has been so executed. (Construing sec. 491m, D. C. Code, 34 Stat. at L. 153, chap. 2070, and citing Winslow v. Baltimore & O. R. Co. 28 App. D. C. 126, 208 U. S. 59, 52 L. ed. 388, 28 Sup. Ct. Rep. 190.)</p>

<p>Hearing on an ex parte petition for a rehearing.</p>

Hearing on an appeal by tbe defendant from a decree of tbe Supreme Court of tbe District of Columbia sitting as a court of equity, in a suit to set aside alleged fraudulent transfers. Tbe Court in tbe opinion stated tbe facts as follows: Tbis is an appeal from a decree sustaining a creditors’ bill to set aside a conveyance as made to hinder, delay, and defraud creditors.

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

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

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

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

<p>Patents; Interference; Burden of proof.</p> <p>1. The fact that the application of one of the parties to an interference was not filed until after the grant of a patent to the other party imposes upon him a heavy burden of proof.</p> <p>2. In an interference involving an improvement in time-recording devices whereby impressions on the records produced are printed in different colored inks, where the evidence of the junior party in support of his contention that a machine constructed by a time-recording company constituted his reduction to practice merely showed that while manager of a foundry company he had suggested to a representative of the former company that a- two-colored ribbon device similar to that employed in adding and typewriting machines be adapted to a time indicator, and had furnished him a two-colored typewriting or adding-machine ribbon to facilitate the delivery to him of a time recorder with the two-color ribbon feature, and it appeared that the junior party made no claim to the invention until instigated to do so by the time-recording company more than a year after the construction of the machine, and that he assigned his rights to that company, it was held that the senior parties, to whom a patent had been issued before the junior party’s application had been filed, were entitled to an award of priority. (Following Mergenthaler v. Scudder, 11 App. D. C. 264, and Burson v. Vogel, 29 App. D. C. 388.)</p>

<p>Hearing on an appeal from a decision of the Commissioner of Patents rejecting certain claims in an application for a patent.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>Daniel B. Luten filed this application April 1, 1907, for a patent for new and useful improvements in bridges or arches of concrete or other analogous materials. Beginning his description, he says: “This invention relates to girder bridges, and to arch bridges which are made of concrete or other suitable' materials, and to methods of erecting the same, and has for its. general object to provide an improved structure of the class referred to which shall combine a maximum of strength and efficiency with increased economy of construction, compared with similar bridges at present in use. The improvements to which my invention is directed pertain more directly to the spandrels, copings, and railings of such bridges, and to methods of so erecting structures as will produce an efficient and satisfactory superstructure.”</p> <p>Twenty-five claims are made and embody the methods of construction. The claims read as follows:</p> <p>“That improvement in the art of building an arch comprising first placing the footings with upper surface upwardly inclined away from the span, then laying a pavement between the footings, then erecting centers on the pavement, then erecting the arch of plastic material on the centers, then erecting part of the spandrel or superstructure approximately to the copings, then adding the earth filling, pavement, or other loading, then erecting the forms for railing, coping, or other spandrel, then permitting the arch to harden, then releasing the centering supports, then allowing the arch to settle, then completing the spandrel, coping, or railing, and subsequently removing the centering.</p> <p>“2. That improvement in the art of building an arch or girder comprising placing the foundations of the arch or girder, then laying a pavement between the foundations, then erecting temporary supports on the pavement, then erecting the arch or girder on the temporary supports, then erecting part of the spandrel or superstructure, then loading the structure, then erecting forms for railing or coping, then releasing the temporary supports, then allowing the arch or girder to settle, then adding to the spandrel or superstructure, and subsequently removing the centering.</p> <p>“3. That improvement in the art of building an arch or girder of hardening plastic comprising placing the foundations, then laying a pavement between the foundations, then erecting temporary supports on the pavement, then erecting the arch or girder on the temporary supports, then erecting part of the spandrel or superstructure, then adding part of the fixed loading, then erecting railing falsework, then releasing the temporary supports allowing the arch or girder to settle, then adding to spandrel, railing, or superstructure, and subsequently removing the centering.</p> <p>“4. That improvement in the art of building an arch or girder comprising placing foundations for temporary supports, erecting temporary supports upon the foundations, then erecting an arch or girder on the temporary supports, then erecting the lower part of the spandrel or superstructure, then adding fixed loading, then erecting railing falsework, then releasing the temporary supports to allow settlement, then adding to spandrel, railing, or superstructure, and subsequently removing the temporary supports.</p> <p>“5. That improvement in the art of building an arch or girder of hardening plastic comprising laying foundations of plastic for temporary supports, erecting temporary supports upon the foundation, then erecting an arch or girder on the supports, then erecting part of the spandrel or superstructure on the arch or girder, then adding other fixed loading, then erecting falsework for coping or railing, then lowering the temporary supports, then adding spandrel, coping, or railing of plastic material, and subsequently removing all falsework.</p> <p>“6. That improvement in the art of building an arch or girder comprising erecting centers, then erecting an arch or girder on the centers, then erecting part of the spandrel or superstructure, then adding other loading, then erecting falseAvork for coping or railing, then lowering the centers, then adding to spandrel, coping, or railing, and subsequently removing the centers and forms.”</p> <p>“8. That improvement in the art of building an arch or girder comprising erecting the arch or girder on temporary supports, together Avith part of the spandrel or superstructure, then adding to the load on the arch or girder, then erecting false-work for railing or coping, then manipulating the temporary ■supports so as to subject the arch or girder to stress without permitting excessive distortion, then adding to spandrel, coping, •or railing.</p> <p>“9. That improvement in the art of building an arch or girder of hardening plastic comprising erecting the. arch or girder on temporary supports, together with part of the spandrel or superstructure, then adding to the load on the arch ■or girder, then erecting forms for railing or coping, then manipulating the temporary supports so as to subject the arch or .girder to stress without permitting excessive distortion, then adding plastic material for spandrel, coping, pr railing.</p> <p>“10. That improvement in the art of building an arch or girder comprising erecting the arch or girder on temporary supports, together with part of the spandrel or superstructure, then adding roadway filling, then erecting railing falsework, then lowering the temporary supports, and subsequently completing spandrel, coping, or railing.</p> <p>“11. That improvement in the art of building an arch or girder of hardening plastic comprising erecting the arch or girder on centers together with part of the spandrel or superstructure, then building up the roadway, then erecting forms for coping or-railing, then striking the centers, and subsequently completing the spandrel, coping, or railing with plastic material.</p> <p>“12. That improvement in the art of building an arch or girder comprising erecting the arch or girder on temporary •supports, then erecting part of the spandrel or superstructure, then adding other loading, then lowering the temporary supports, and subsequently adding coping or railing.</p> <p>“13. That improvement in the art of building an arch or girder of hardening plastic comprising erecting the arch or girder on temporary supports, then adding part of the spandrel or superstructure, then increasing the loading, then lowering the temporary supports, and subsequently completing spandrel, ■coping, or railing.</p> <p>“14. That improvement in the art of building an arch or .girder comprising erecting the arch or girder together with part of the spandrel or superstructure on centers, then lowering the centers, and subsequently adding coping or railing.</p> <p>“15. That improvement in the art of building an arch or girder of hardening plastic comprising erecting the arch or girder and part of the spandrel or superstructure approximately to the coping, on temporary supports, then lowering the supports, and subsequently adding coping and railing.</p> <p>“16. That improvement in the art of building an arch or girder of concrete comprising erecting the arch or girder together with part of the. spandrel or superstructure, then manipulating the supports of the arch or girder to permit settlement, and subsequently completing the spandrel, coping, or railing.</p> <p>“17. That improvement in the art of construction comprising erecting a supporting structure of concrete together with part of the supported superstructure integral therewith, then subjecting - the supporting structure to its principal loading stresses, and subsequently completing the superstructure.</p> <p>“18. That improvement in the art of building an arch or girder of concrete comprising erecting the arch or girder together with part of the integral superstructure supported thereby, and completing the superstructure after the arch or girder is subjected to its principal loading stresses.</p> <p>“19. That improvement in the art of construction comprising erecting a supporting structure of concrete together with part of the supported superstructure integral therewith, then subjecting the supporting structure to stresses induced by diminution of external support, and subsequently completing the superstructure.</p> <p>“20. That improvement in the art of building an arch or girder bridge of concrete comprising erecting the arch or girder together with part of the integral superstructure supported thereby, and completing the superstructure after the arch or girder is subjected to stresses induced by diminution of external support.</p> <p>“21. That improvement in the art of building an arch or girder bridge of concrete comprising erecting the arch or girder, then erecting part of the integral superstructure supportecL thereby, then applying additional loading, and subsequently adding to the superstructure after the arch or girder is subjectecL to its principal internal stresses. •</p> <p>“22. That improvement in the art of building an arch or girder bridge of concrete comprising erecting the arch or girder together with part of its integral superstructure, then applying granular loading, and subsequently completing the superstructure after the arch or girder is subjected to stress. .</p> <p>“23. That improvement in the art of building an arch or girder bridge of concrete comprising erecting the arch or girder together with part of its integral superstructure, then applying, the other loading, then erecting forms for completing of superstructure, and subsequently placing the concrete for superstructure after the arch or girder is subjected to its principal stresses.</p> <p>“24. That improvement in the art of building a concrete-bridge comprising erecting the bridge together with integral loading, and subsequently completing the integral loading after the bridge has assumed its principal stresses.</p> <p>“25. That improvement in the art of building a concrete bridge comprising laying a pavement, erecting centers upon, the pavement, then erecting the bridge and spandrel approximately to the coping, then adding earth loading, then creating forms for coping and railing, then manipulating the centers to-cause the bridge to assume its principal stresses, then completing coping and railing, and. subsequently removing centers and forms.”</p> <p>Applicant states that the generally recognized method of constructing arched bridges consists in erecting centerings,- and then erecting the arch ring, the spandrel walls, coping, railings,, and filling complete before the removal of the centerings, so-that the practically finished structure, including the roadway proper, is supported upon the centering or falsework until the concrete or mortar has properly set. By this process, the entire structure, upon the removal of the centering, is at once subjected to all of its settlement stresses, from which cracks inevitably result, with sagging of the coping and railing immediately above the crown.</p> <p>By applicant’s method, piers or abutments are first erected. Centering is then erected between these, the arch ring is produced, and the lower portions of the spandrels are erected while the centering is still in place. The extension of the spandrel walls upwardly is not definitely stated. The centering is then withdrawn so that the arch is subjected to its settlement stresses. The sagging at any point through this settling may then be compensated before the coping is added, thus ■enabling it to remain true.</p> <p>The Primary Examiner rejected all of the claims made on references to the following publications: Engineering News, Yol. 50, p. 427 (description of the Big Muddy river bridge) ; Idem. Yol. 28, p. 49 (description of Goir Noir bridge construction) ; Transaction of the American Society of Civil Engineers, vol. 17, pp. 210, 212. He said: “It is a matter of common knowledge among mechanics of the building trades that if superstructure is begun upon a foundation that has not had time to settle, the walls of the superstructure will be likely to crack. This is, of course, because tensional stresses are set up in the superstructure. This principle is all that is included in the alleged ‘method’ disclosed in this application. The application is a mere attempt to obtain a patent for the application of this principle to the building of a bridge, and it is thought, even without references, that a valid patent could not be issued therefor. It is the custom among engineers when building a succession of arches to provide timber for centering for only part of the arches when the exigencies of the construction will allow, construct the arch rings for part ■of the arches, remove the centers, and use the same timber for ■other arches. This is shown in the reference to the building of the Big Muddy river bridge. The railroad now building from southern Florida to Key West is an example of the case where many arches in succession are to be built, in some cases extending over 2 or 3 miles.” The Primary Examiner attached no importance to the suggestion that the application is limited to concrete construction alone. He said: “It is not seen to make the slightest difference, in. contemplating a ‘method,’ of what material the arch is made. The settlement of a brick arch after the building of superstructure will introduce tensile strains-as will the settlement of a concrete arch. This is graphically illustrated by the effect of this decentering, as described by Major Medley, 1863.” (This refers to one of the publications cited).</p> <p>The Examiners-in-Chief, to whom applicant appealed, took a different view. They said: “None of the references cited, by the Examiner discloses the idea' of erecting the footings, the arch or girder and a part of the superstructure of spandrel of a concrete bridge, allowing the parts to settle by loosening or releasing the falsework of the bridge so that the structure assumes the principal stresses, and then completing the superstructure. The object of this method of construction is to prevent the settlement stresses from cracking the superstructure of the completed bridge. * * * The Examiner refers to a number of publications as anticipating appellant’s improvement, but these citations, while revealing the idea of allowing a bridge structure to settle under load before the spandrels are added, do not describe the partial completion of the spandrels of a concrete bridge, the subsequent settling of this partially completed structure, and the final completion of the spandrels.” They, however, reversed the Examiner’s decision as to the last six claims only, twenty to twenty-five inclusive. Their view was that the appellant’s invention is confined specifically to bridges of entire concrete construction, and that the first nineteen claims, not being so limited, were not allowable, under the application. Some of those claims it will be observed, fail to specify that any part of the structure is made of concrete or plastic material, while others limit the plastic material .construction to certain parts only, of the bridge structure.. For this reason they affirmed the denial of claims one to nineteen, inclusive.</p> <p>The Commissioner approved the reasoning of the Examiners-in-Chief, and affirmed their decision.</p>