Volume 33 — Appeals, District of Columbia

<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 tbe Commissioner of Patents in a trademark interference case. The facts are stated in the opinion.

Hearing on an appeal by one of several defendants from a decree of tbe Supreme Court of the District of Columbia, directing such defendant to specifically perform a contract made by her for the sale of land.

<p>Hearing on an appeal by tbe accused from a judgment of conviction of the Supreme Court of the District of Columbia in the trial of an indictment for maintaining a place for the purpose of gaming, and with setting up and keeping a gaming device.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal [by Percy Wade] , from a conviction under an indictment charging a violation of the laws to prevent gaming. The indictment is in two counts. The first is substantially set out in appellant’s brief as follows:</p> <p>“The first count of the indictment, upon which conviction was had, charges that the appellant and said Hedges did set up and keep, in the District of Columbia, a place for the purpose of gaming, between August 20, 1906, and August 20, 1907; that is, an office in the Ouray building, in said District, and for such purpose of gaming did engage in and conduct a pretended brokerage business under the name of Wade & Hedges, for the making of contracts between them and other persons for the pretended buying on commission for such other persons, as brokers, of shares of the stocks of railroads and other corporations at prices to be agreed upon between them, being the market prices of such shares of stock on the New York Stock Exchange at the time of such transactions, as such prices were reported by telegraph to said Wade & Hedges, with no intention on the part of said Wade & Hedges and the pretended buyers in such transactions to deliver the property so dealt in, or that the same shall be paid for and received, but with the understanding on the part of both that such transactions should be merely betting and wagering contracts upon the fluctuations in the market prices of the shares of stock so contracted for, and, under such bets and wagers, in case there was a rise, such buyers should win, and in case there was such fall said Wade & Hedges should win, and that the sums to be paid by the one party to the other in the settlement of such bets and wagers should be the difference between the prices of the property, as fixed by such pretended contracts of purchase, and the market prices thereof at the time of such settlement. Said count then sets up the reverse of the above transaction, wherein the customers are the pretended sellers of stocks, and said Wade & Hedges the pretended buyers thereof, with, a like absence of intention on the part of both to deliver, and with the intention on the part of both to settle on differences. And further charges that, for such purpose of gaming by means of said pretended business, said Wade & Hedges maintained at said place and office a blackboard and telegraph instrument, called a ticker, from and through which ticker were received the market prices of shares of stock dealt in and recorded on said blackboard and exhibited to their said customers.”</p> <p>The second count charges the defendants with setting up and keeping a game, device, aand contrivance for gaming known as a bucket shop, the nature of which is charged as in the first count. A severance was granted and Wade only was tried. The jury returned a verdict of guilty under the first count. Defendant then moved in arrest of judgment on the ground that the indictment charged no offense under the laws of the District. This was overruled, and the single assignment of error is founded thereon.</p>

<p>Hearing on an appeal by the defendants from a decree of the Supreme Court of the District of Columbia, dismissing a bill in equity to recover the value of certain corporate stock.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from a final decree of the supreme court of the District of Columbia, dismissing appellants’ bill of complaint in an action brought to recover the value of certain preferred stock held by the complainants, John Schickler, Frederick W. Dieste, Michael J. Fennel, Patrick R. Carr, Charles E. Marlow, Michael J. Farrington, Agnes O. Brandes, and Agnes C. Brandes, Executrix of Henry Brandes, deceased, in the defendant corporation. It appears that the Washington Brewery Company, limited, referred to in the bill of complaint as the old company, was a corporation organized in 1889 under the British companies act, with capital stock of 135,000 pounds sterling, divided into 6,000 8 per cent cumulative shares of 10 pounds sterling each, and 7,500 shares of common stock of the same par value per share.</p> <p>With the proceeds of the sale of this stock, the old company caused to be organized under the laws of the State of New York the Washington Brewery Company, a corporation with a capital stock of $200,000, all of which was placed in the hands of certain trustees, to be used for the sole use and benefit of the English company. The New York company then purchased, on behalf of the English company, a brewery plant located in the city of Washington, District of Columbia, from one Albert Carey, paying therefor the sum of $705,000, part being paid in cash and the balance by notes secured by deeds of trust upon the property.</p> <p>In September, 1897, the English company caused to be organized under the laws of the State of Virginia another corporation of the same name, with a capital stock of $200,000, which was likewise placed in the hands of trustees for the sole use and benefit of the English company. At the same time, the New York company transferred, without consideration, to the Virginia company, all the property located in the city of Washington, which company from that time conducted the said brewery for the use and benefit of the English company, the New York company being abandoned.</p> <p>About the 16th day of May, 1904, all of the complainants, as stockholders in the English company, received from the secretary of said company a circular letter bearing the postmark of London, England, and the date of May 7, 1904. This letter set forth a scheme which the directors of the English company deemed necessary for a reorganization of the company. This scheme was as follows:</p> <p>“1. A new company shall be incorporated under the companies acts, 1862 to 1900, with a capital of £80,000, divided into 80,000 shares of £1 each, to be called ‘The Washington Brewery Company, Limited,’ or some other suitable title.</p> <p>“2. The object of the new company shall include the acquisition of the existing company’s undertaking and properties.</p> <p>“3. The existing company shall transfer its undertaking and properties to the new company in consideration of 71,420 shares of the new company, credited with 15s. per share as paid up thereon .</p> <p>“4. Each preference shareholder in the existing company shall have the right, within a period of fourteen days next after the posting to him by the liquidator of a notice requiring him to apply for the same (with power for the liquidator in special cases to extend such period), to claim an allotment of ten such shares in the new company, credited' as aforesaid in respect of each £10 share in the existing company held by him. And each ordinary shareholder in the existing company shall have the right to claim an allotment of two such shares in the new company, credited as aforesaid in respect of each one £10 share in the existing company held by him.</p> <p>“5. The unpaid amount of 5s. in respect of such shares in the new company shall be payable as to Is. per share on application, Is. on allotment, and the balance in calls not exceeding Is. per share, to be made in such manner th*at no call shall be payable at an interval of less than two calendar months after the due date for payment of the last preceding call, but the allottee may elect to pay up such calls in one payment in advance at any time.</p> <p>“6. The reconstruction shall be carried out under sec. 161 of the companies acts, 1862, and accordingly the existing company shall be placed in voluntary liquidation.”</p> <p>With this letter was also the following notice of a special meeting of the stockholders of the corporation, to be held in the city of London:</p> <p>The Washington Brewery Company, Limited,</p> <p>16 Victoria Street,</p> <p>Westminster, S. W.</p> <p>Notice is hereby given that an extraordinary general meeting of the company will be held at Winchester House, Old Broad street, in the city of London, on the 16th day of May, 1904, at 12: 45 o’clock in the afternoon, for the purpose of considering, and, if thought fit, passing the resolutions following, namely:</p> <p>1. “That it is desirable to reconstruct the company, and accordingly that the company be wound up voluntarily, and that Thomas Toten Willcox, of 16 Victoria street, in the city of Westminster, be and be is hereby appointed liquidator for the purposes of such winding up, at a remuneration of 50 guineas.”</p> <p>2. “That the said liquidator be and he is hereby authorized to consent to the registration.of a new company, to be named ‘The Washington Brewery Company, Limited.’ ”</p> <p>3. “That the draft agreement submitted to this meeting and expressed to be made between this company and its liquidator of the one part, and the Washington Brewery Company, limited, of the other part, and, for the purpose of identification, initialed by the chairman, be and the same is hereby approved, and that the said liquidator be and he is hereby authorized, pursuant to sec. 161 of the companies act, 1862,' to enter into an agreement with such new company when incorporated, in the terms of the said draft, and to carry the same into effect, with such, if any, modifications as he thinks expedient.”</p> <p>Should the above resolutions be passed by the requisite majority, they will be submitted for confirmation as special resolutions to a second extraordinary general meeting, which will be subsequently convened.</p> <p>Dated this 7th day of May, 1904.</p> <p>By order of the board.</p> <p>T. T'oten Willcox, secretary.</p> <p>The resolutions contained in the notice were submitted to the shareholders at the special meeting on the 16th of May, 1904, and were adopted. On the 20th of May following, a second notice was sent out to the shareholders of a meeting to be held on the 31st day of May for the purpose of submitting for confirmation the resolutions theretofore adopted. The scheme of reorganization was to be carried out under secs. 161 and 162 of the companies act of 1862, which are as follows:</p> <p>“Where any company is proposed to be or is in the course of being wound up altogether voluntarily, and the whole or a portion of its business or property is proposed to be transferred or sold to another company, the liquidators of the first-mentioned company may, with the sanction of a special resolution of the company by whom they were appointed, conferring either a general authority on the liquidators, or an authority in respect of any particular arrangement, receive in compensation for such transfer or sale shares, policies, or other like interests in such other company, for the purpose of distribution amongst the members of the company being wound up, or may enter into any other arrangement whereby the members of the company being wound up may, in lieu of receiving cash,. shares, policies, or other like interests, or in addition thereto, participate in the profits of or receive any other benefit from the purchasing com- « pany; and any sale made or arrangement entered into by the liquidators in pursuance of this section shall be binding on the members of the company being wound up; subject to this proviso, that if any memfier of the company being wound up who has not voted in favor of the special resolution passed by the company of which he is a member at either of the meetings held for passing the same expresses his dissent from any such special resolution in writing, addressed to the liquidators or one of them, and left at the registered office of the company not later than seven days after the date of the meeting at which such special resolution was passed, such dissentient member may require the liquidators to do one of the following things as the liquidators may prefer, that is to say: either to abstain from carrying such resolution into effect, or to purchase the interest held by such dissentient member at a price to be determined in manner hereinafter mentioned, such purchase money to be paid before the company is dissolved, and to be raised by the liquidators in such manner as may be determined by special resolution. No special resolution shall be deemed invalid for the purposes of this section by reason that it is passed antecedently to or concurrently with any resolution for winding up the company, or for appointing liquidators; but, if an order be made within a year for winding up the company, by or subject to the supervision of the court, such resolution shall not be of any validity unless it is sanctioned by the court.</p> <p>“The price to be paid for the purchase of the interest of any dissentient member may be determined by agreement; but, if the parties dispute about the same, such dispute shall be settled by arbitration; and for the purposes of such arbitration the provisions of the companies clauses consolidation act, 1845, with respect to the settlement of disputes by arbitration, shall be incorporated with this act; and in the construction of such provisions this act shall be deemed to be the special act, and ‘the company’ shall mean the company that is being wound up, and any appointment by the said incorporated provisions directed to be made under the hand of the secretary or any two of the directors may be made under the hand of the liquidator, if only one, or any two or more of the liquidators, if more than one.”</p> <p>Complainants allege in their bill that the notice mailed to them under date of May 7, 1904, of the first special meeting of the stockholders was not received by them until the 16th day of the same month, the very day that the meeting- was held, and that the notice of the second special meeting called for the 31st day of May, which was mailed to them on the 20th of May, was not received by them until on or about the date of the meeting. It is further alleged that these notices came too late to enable them to avail themselves of the right to vote and right to dissent, as provided for in sec. 161 of the companies act; and, by reason of insufficient notice, they allege that they stand in the same position and have the same rights as though they had been “dissentient” shareholders. Being in this position, they contend they are creditors of the corporation, and entitled to all the rights provided for in the companies act requiring the liquidators “either to abstain from carrying such resolutions into effect, or to purchase the interest held by such dissentient member at a price to be determined in manner hereinafter men-| tioned.”</p> <p>On the 15th of June following, the liquidator sent to the complainants a notice to the effect that shares of the new company had been allotted to them, and also a formal subscription, together with the following notice:</p> <p>To American Shareholders:</p> <p>In order to give yOu sufficient time to apply for your shares in the new company. I have arranged with the directors to extend your time for sending in claims to the 11th July, 1904.</p> <p>T. Toten Willcox, liquidator.</p> <p>Later, on the 29th of July, 1904, a further circular was sent, informing the appellants that “a final opportunity would be afforded them to take the shares allotted, this notice further extending the time for subscriptions until August 10, 1904. The final account of the liquidator, closing up the affairs of the old English corporation, was rendered September 13, 1905. This cause was heard on bill and answer, and from the decree dismissing the bill, the case comes here on appeal.</p>

Hearing or an appeal by the complainant from a decree of the Supreme Court of the District of Columbia in a suit for the dissolution of a partnership and for an accounting. The Court in the opinion stated the facts as follows: The appellant, Joseph Yan Fleet, filed-this bill to obtain the dissolution of a partnership, and for an account and settlement.

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

<p>Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia upon a verdict directed by the Court, in an action for the alleged breach of a contract of sale.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal by the plaintiff, Lino F. Rondinella, from a judgment of the supreme court of the District of Columbia upon a verdict for the defendant, the Southern Railway Company, in an action in assumpsit to recover the price of an electric photographic printing machine. It appears that, in response to a request from the engineer of defendant company at Knoxville, Tennessee, for a catalogue of plaintiff’s machines, plaintiff sent a circular containing,/ among other things, the following statement:</p> <p>“Lamps and Motor are furnished for 110-volt circuit, unless otherwise ordered.</p> <p>“Prices include packing and delivery f. o. b. at Philadelphia.</p> <p>“Machines shipped on thirty days’ trial to responsible parties, or can be shown in operation at Philadelphia or elsewhere.</p> <p>“Prices on special sizes, or on partial equipment only, will be furnished by L. F. Rondinella, M. E.”</p> <p>With this circular was sent a supplement containing a revised price list, in which machine No. 42, with four Oooper-Hewitt vapor lamps, was quoted at $425. On the strength of the representations set forth in these circulars, the defendant sent the following order:</p> <p>Knoxville, Tenn., May 1, 1906.</p> <p>Mr. L. F. Rondinella, Mechanical Engineer,</p> <p>728 Stephen Girard Building,</p> <p>Philadelphia, Pa.</p> <p>Dear Sir:—</p> <p>Will you kindly send me, as quickly as possible, sale to be made subject to approval, your electric blue printing machine, which you show on your revised price list as outfit No. 42, with 4 Oooper-Hewitt vapor lamps. If the same proves satisfactory, I will send you voucher to cover cost.</p> <p>Please ship by freight via Washington, D. 0., and Southern Railway.</p> <p>In sending me bill, please have it made in duplicate.</p> <p>Please advise me when you will make shipment, so I can arrange for the proper current connection.</p> <p>Tours truly,</p> <p>W. B. Crenshaw,</p> <p>Principal Ass’t Engr.</p> <p>To this letter, plaintiff replied as follows:</p> <p>Philadelphia, Pa.,- May 3, 1906.</p> <p>Mr. W. B. Crenshaw, Prin. Ass’t Engr. Southern Railway Co., Knoxville, Tenn.</p> <p>Dear Sir:—</p> <p>I have your valued favor of the 1st inst. ordering a No. 42 Star photo-printing outfit with 4 tube Oooper-Hewitt lighting equipment, to be paid for within thirty days after its receipt, or to be returned undamaged before the expiration of that time if it is not as represented. I do not usually promise shipment in less than one month, but we now have most parts in stock ready for assembling and test, and I therefore expect to ship the outfit to you before the 21st inst. Please inform me what is the normal voltage of your D. C. electric supply, with its maximum variations.</p> <p>Tours very truly,</p> <p>L. P. Rondinella.</p> <p>In response, defendant wrote the following letter:</p> <p>Knoxville, Tenn., May 7, 1906.</p> <p>Mr. L. P. Rondinella, Mechanical Engineer,</p> <p>728 Stephen Girard Bldg.,</p> <p>Philadelphia, Pa.</p> <p>Dear Sir:—</p> <p>Referring to your letter of the 3d relative to the voltage for the machine ordered, the local electric office say that their direct current is normally 500 volts with a variation of 10 per cent either way. They, however, recommend a 110-volt alternating current Cooper-Hewitt lamp, of which they say they are operating a number successfully. I give you this information for what it is worth. They are installing new apparatus in their power plant, so they will soon be able to cut down the 10 per cent variation.</p> <p>If there is anything further, please advise .me.</p> <p>Tours truly,</p> <p>W. B. Crenshaw,</p> <p>Principal Ass’t Engr.</p> <p>To this, plaintiff replied:</p> <p>Philadelphia, Pa., May 9, 1906.</p> <p>Mr. W. B. Crenshaw, Prin. Ass’t Engr. Southern Ry., Knoxville, Tenn.</p> <p>Dear Sir:—</p> <p>The information in yours of the 7th inst. just received may necessitate a 'rapid change’ in the electric equipment I am preparing for your Star photo-printing machine which is to operate from a direct current supply oí 110 volts in accordance with the statements in my circular, a marked copy of which I send herewith. At the bottom of p. 2 notice that 'lamps and motor are furnished for 110 or 220 volts, direct current, and under the Revised Price List notice that they 'are furnished for 110 volts circuit, unless otherwise ordered.’ Your order of May 1st did not state otherwise, so the Cooper-Hewitt lamps that are to be shipped to you direct from New York and the motor will be of that voltage unless your reply (which please make immediately) advises me that you cannot supply that kind of current. I do not know of a suitable motor to operate on 500 volts direct current, and only the short Cooper-Hewitt tubes have been adapted to alternating current, but, if necessary, I can make you a special equipment of 4 Cooper-Hewitt lamps in series to operate from a 500 volt L>. C. supply and a motor to operate from a different 110 volt A. C. supply. Indeed, I shipped last week an outfit with such an equipment to Watertown, N. Y., but the total cost is $5 greater, and the machine itself (whose value without motor is $225) is the only part that is regular stock and returnable. Will you therefore please reply at once with explicit statement as to which arrangement you want, and, if you desire the motor for alternating current, specify whether it has 60 or 125 phases.</p> <p>.Very truly yours,</p> <p>L. F. Rondinella.</p> <p>Defendant answered this letter as follows:</p> <p>Knoxville, Tenn., May 12, 1906.</p> <p>Mr. L. F. Rondinella, Mechanical Engineer,</p> <p>728 Stephen Girard Bldg.,</p> <p>Philadelphia, Pa,</p> <p>Dear Sir:—</p> <p>I have your letter of the 9th relative to making changes in the outfit ordered for this office. As you suggest, I think it would be best to arrange for tbe 4 Cooper-Hewitt lamps in series, and to use a 110-volt alternating current supply for the motor. I have called on the local electric light company, and they state that their alternating current is 110 volts, 60 cycle, single phase. I think the equipment to which you refer as having been furnished the Watertown, N. Y., party would be about what we would want.</p> <p>Yours truly,</p> <p>W. B. Crenshaw,</p> <p>Principal Ass’t Engr.</p> <p>Shortly thereafter, plaintiff notified defendant of the shipment of the machine, through the following letter:</p> <p>Philadelphia,. Pa., May 22, 190.6.</p> <p>Mr. W. B. Crenshaw, Prin. Ass’t Engr., Southern By. Co.</p> <p>EMoxville, Tenn.</p> <p>Dear Sir:—</p> <p>On May 10th the Cooper-Hewitt Company shipped you four lamp tubes, on May 19th I shipped three cases containing the machine support, the tube framework, and the electric resistances and ballasts for the tubes; and this morning I shipped the last case containing the Star photo-printing machine to complete the No. 42 special outfit, in accordance with your order of May 1st and 12th. If your operator closely follows the typewritten instructions that I send herewith, he should have no trouble in setting up the outfit and in operating the lamps and the machine. After he has become familiar with its use, I shall be glad to know yoúr opinion of it.</p> <p>Very truly yours,</p> <p>L. E. Bondinella.</p> <p>The following bill was also sent:</p> <p>728 Stephen Girard Building, Philadelphia, May 22, 1906.</p> <p>Mr. W. B. Crenshaw, Prin. Ass’t Engr., Southern By. Co., Knoxville, Tenn., to L. E. Bondinella, Dr.</p> <p>For your order May 1, as modified May 12, 1906, 1 No. 42 C-Star photo-printing outfit, with special electric equipment.......................... $430</p> <p>The above correspondence, together with the circulars, embraces the contract here sued upon.</p> <p>The record discloses a long correspondence between the parties relative to parts of the machine which reached defendant in a broken condition, and a portion of the machine which the plaintiff had failed, through the negligence of his clerk, to ship in the first instance. From the correspondence, it appears that all parts of the machine were not in the hands of the defendant, in condition to assemble, until July 10th. On that date, defendant made a test of the machine, the result of which is indicated in a letter to plaintiff as follows:</p> <p>Knoxville, Tenn., July 10, 1906.</p> <p>Mr. L. F. Bondinella, M. E.,</p> <p>728 Stephen Girard Bldg.,</p> <p>Philadelphia, Pa.</p> <p>Dear Sir:—</p> <p>We have just received from the Cooper-Hewitt people the tube to replace the imperfect one relative to which we wrote them, copy of which was sent you. After this tube was placed in position we endeavored to light up the machine in accordance with directions and succeeded in doing so, the light appearing in all four tubes. The lamps burned for a period of, about twenty seconds and went out. We looked the machine over thoroughly to determine a cause for this and found in one of the ballast lamps that the film had fused and in a second ballast lamp the filament had begun to melt, forming small lumps or balls on the filament. The electrician whom we employed to set up the electrical part of the machine stated that it was no doubt due to the fact that there was not sufficient resistance. Thinking that this might be a correct assumption, it occurred to me that, in sending the set of resistances to take the place of those that were lost, the factory sent a set such as you use when •using the regular type of machine, which would not be suitable for operating an outfit like the one furnished us, which has the four lamps in series. I examined the resistances and found them marked 110 volts. As you know, the voltage we are obliged to use is 500 volts.</p> <p>I wish you would advise me as soon as possible what ought to be done. I do not think that any of the electrical people in this city are familiar enough with the apparatus to render a positive opinion as to what is really wrong.</p> <p>Yours truly,</p> <p>W. B. Crenshaw,</p> <p>Principal Ass’t Engr.</p> <p>After a long series of correspondence, not material to this inquiry, defendant wrote plaintiff as follows:</p> <p>Knoxville, Tenn., August 1, 1906.</p> <p>Mr. L. E. Rondinella, M. E., Philadelphia, Pa.</p> <p>Dear Sir:—</p> <p>I hand you herewith communication from Cooper-Hewitt people with diagram for the wiring of their lamps in connection with your blue print machine. I also hand you copy of your pencil drawing which was attached to instructions for installing and operating your blue print machine with their lamps. It is now over two months since the blue print machine was received. We have reported defects to you from, time to time, and there seems to be no prospect of getting the machine in shape. Please say if you desire me to box up the machine and return it to you, or whether you will take some steps to put it in working order.</p> <p>Tours truly,</p> <p>W. B. Crenshaw,</p> <p>Prin. Ass’t Engr.</p> <p>To this, plaintiff replied on August 4th, in' part, as follows:</p> <p>“While I regret sincerely the unusual number of accidents which has delayed the operation of your blue printing outfit, a review of our correspondence will show that I have given prompt attention to all your complaints; and a moment’s thought should convince you that I, too, am anxious to make the machine operative, not only that you may be satisfied, but for the more selfish reason that I may have it accepted and paid for as soon as possible. I am surprised, therefore, at your questions as to whether I 'will take some steps to put it in working order,’ to which you already have sufficient answer. If you wish to send back the returnable part of the outfit, let me know and I will send directions for shipping it to my store room; but, if I were you, having waited so long, I should put it in operation before reaching such a decision.”</p> <p>After another series of letters which passed between the parties, defendant wrote plaintiff, on November 10th, in part as follows:</p> <p>“Mr. B[ays, representing the Cooper-Hewitt Co., at your request, called upon us some time ago to determine if possible, the cause of all our trouble. As a precautionary measure, he had shipped an extra tube so that, in the event he found the trouble to be with the tubes, he would have this extra tube on hand. This extra tube, unfortunately, was of another type, and he was unable to see the machine in operation. He made a careful examination and told us that electrical connection and adjustments were properly made, from what we told him of the action of the machine while in operation, and thought we would have no further trouble. In the meantime, we ordered, as a protection against delay due to any imperfections in the tubes, a couple of tubes and two ballasts from the Cooper-Hewitt Company. After these had arrived and we had gotten the machine started again, several defects in the machine developed which we feel are sufficient to show we are justified in sáying that the machine does not fill the bill.</p> <p>“Under the circumstances, we do not feel that the machine meets our requirements, and I have, therefore, had it carefully packed, and am returning it to you to-day, all charges prepaid.”</p> <p>The deposition of plaintiff, which appears in the record, follows closely the correspondence as above outlined. Plaintiff admitted the return of the machine; and, on cross-examination, admitted that he did not personally supervise the shipment of the machine or know the condition it was in when it was loaded at Philadelphia. Upon this state of facts, plaintiff rested his case, and the court, on motion of counsel for defendant, directed the jury to return a verdict for the defendant. Prom the judgment rendered thereon, plaintiff prosecutes this appeal.</p>

<p>Municipal Corporations; Police Regulations; Statutes; Street Cars.</p> <p>1. Section 10, article 10, police regulations, District of Columbia, providing that no person shall propel a “horseless vehicle” so as to collide with persons or other vehicles, and that the operator of such vehicles shall make way for pedestrians at street crossings, does not apply to street cars, as other sections of the same act distinguish street cars from all other vehicles, and deal with them as a separate class, and one of them expressly provides that street cars shall have the right of way except as to hospital ambulances and certain other vehicles named.</p> <p>2. Qucere, — Where sec. 10, art. 10, police regulations, District of Columbia, is in conflict with the statute incorporating the Capital Traction Company of the District of Columbia, or has been repealed by the act of Congress of May 23, 1908, conferring certain jurisdiction over street railroads in the District of Columbia upon the Interstate Commerce Commission.</p>

Hearing on an appeal by the defendants from an order of the Supreme Court of the District of Columbia granting an injunction pendente lite in a suit to enjoin them from prosecuting a boycott. The facts are stated in the opinion.

Appeal by the defendants from a decree of the Supreme Court of the District of Columbia, overruling exceptions to a report of the Auditor of that court, in a suit for a partnership accounting.

<p>Hearing on an appeal by tbe defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover damages for alleged false representations.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>By this appeal appellant, G. Lloyd Magruder, seeks a reversal of a judgment entered against him for $3,000 and interest.</p> <p>The declaration is in two counts; the gravamen of the first count being that the defendant wilfully misrepresented the condition of the Standard Dairy & Ice Company, a corporation of which he was the president. The gravamen of the second connt is that the appellant was bound to know the condition of said company, and, although not actually possessing such knowledge, recklessly and negligently represented that he did. Each count states that appellee relied upon the representations of appellant, and was thereby induced to purchase thirty shares of the company’s stock for $3,000, which was lost by the subsequent insolvency of the company.</p> <p>In about 1903 the American Butterine Company, a corporation, was formed and engaged in the butterine and ice business. Appellant was president of the company. Under date of January 21, 1905, appellant in substance reported to the company that the butterine business, which was the company’s main business, had been unprofitable, and that the ice business had been profitable; that there had been a net loss of over $15,000; and that the board of directors had voted to discontinue the manufacture of butterine and to increase the capacity of the ice-making part of the company’s plant. The report closes with a statement that, inasmuch as the receipts from the ice business would be $4,500 per annum less than the fixed charges and expenses, some further enlargement of the business of the company would be essential “in order to eventually place our property on a financially paying basis.” Therefore it was decided to embark in the dairy and ice business, and the name of the company was changed to the Standard Dairy & Ice Company. About April 1, 1905, the ice plant was enlarged and the Ashbum Farm Dairy was purchased. There was some evidence that this dairy had yielded quite a large profit the preceding year. The new business of the company, however, was no more successful than the butterine business had been. No profits were ever realized, and, in a comparatively short time, the company became financially embarrassed and was forced into bankruptcy.</p> <p>The appellee, during the period covered by these acts, was a clerk in the Bureau of American Republics, and had a wife and son. The son had studied steam engineering and was desirous of obtaining employment. In some way Mrs. Montgomery, wife of appellee, learned that, there was a possibility of securing the position of assistant engineer for the Standard Dairy & Ice Company, and consulted appellant about the matter. As the result of this conversation appellee testified that early in April, 1905, “he went to see the defendant in order to try to get a position for his son;” that the defendant stated the Standard Dairy & Ice Company was a new company, organized in the District of Columbia to sell milk, ice, and dairy products; that it was a fine business and was already on a paying basis and was earning 20 per cent; that in about two years it would earn about 50 per cent; that Mr. Shafer’s dairy (the Ashburn Farm Dairy) had been purchased, and that Mr. Shafer would be the manager of the milk department of the company; that the defendant urged plaintiff to invest in the stock of the company; and that plaintiff told defendant he could not then decide about investing money in the company. Over the objection and exception of the defendant, plaintiff was permitted to testify that he also told defendant that the money he had for investment had come to him in a way that he did not want to lose it; “that $2,000 of this money was borrowed money, and that a mortgage had been put on our house to raise it, and that I wanted to be very careful about investing it, because I wanted to have the money on hand when the mortgage fell due;” that the defendant assured him the investment was perfectly safe; that the plaintiff telegraphed for his son, who subsequently was given employment by the company; and that in consequence of what the defendant had told him the plaintiff purchased thirty shares of the company’s stock, for which he gave the defendant $3,000, which was wholly lost.</p> <p>During his testimony the plaintiff was permitted to state, over the objection and exception of the defendant, that the $3,000 with which he purchased this stock was all he had.</p> <p>The defendant denied making misleading or false statements to the plaintiff, and offered in evidence several letters which he had received from the plaintiff, and to which further allusion will be hereinafter made.</p>

<p>Hearing on an appeal by tbe defendants from a decree of tbe Supreme Court of tbe District of Columbia, sitting as an Equity Court, in a suit for tbe specific performance of an agreement relating to land.</p> <p>Tbe Court in tbe opinion stated tbe facts as follows:</p> <p>Tbis is a bill for tbe specific performance of a contract entered into on June 18, 1889, by John A. Louden and bis wife, Ellen, witb Epbraim Nasb. Tbe suit-is between tbe beirs of tbe original parties, tbe parties themselves having died prior to tbe filing of tbe bill on January 12, 1898.</p> <p>At tbe time tbe original contract was entered into Louden and bis wife were tbe owners of a parcel of land in Anaeostia, District of Columbia, upon which there was a building containing stores and a large ball. Upon tbis property there were two deeds of trust, tbe first to secure a debt of $1,000, and tbe second to secure tbe payment of forty-four promissory notes dated February 8, 1889. These notes were payable monthly, witb tbe exception of two months in each year, and were given in settlement of an indebtedness of $750, each note being for tbe sum of $20 excepting tbe last, which was for $12.65. As drawn, they included interest to maturity. Three papers were concurrently executed between tbe parties on said June 18, 1889; (1) a deed of conveyance reciting a consideration of $800, and given subject to existing encumbrances, from Louden and wife to Nash; (2) the above-mentioned agreement, reciting the conveyance to Nash, and stating that, “in consideration of the sum of one dollar, lawful money in hand paid by the parties of the second part to the party of the first part, the receipt whereof is hereby acknowledged, the party of the first part hereby agrees to reeonvey said real estate to said parties of the second part, their heirs and assigns, so soon as the revenues shall pay the monthly notes secured by second deed of trust on said property, first having paid out of said revenues, income, or rent taxes, insurance, reasonable repairs, interest on the one-thousand-dollar note secured hy the first deed of trust on said real estate, and all other proper and lawful expenses in and about the management of said property, said notes secured by said second deed of trust to be paid in order in which they come;” (3) rent agreement under which Nash let said premises ■ to Louden at a fixed monthly rental.</p> <p>For some reason Louden declined to carry out his part of the arrangement, and also refused to surrrender possession of the-property. Thereupon Nash instituted an action for the possession of the premises, hosed upon Ms agreement with Louden, and on December 2, 1889, secured possession. Soon after entering into said agreement with Louden, Nash acquired the second trust notes, and subsequently he also acquired the $1,000 trust note. After entering into possession of the property, he allowed the second trust notes then held by him to become overdue and in default, and on May 22, 1890, he procured the property to be sold by the trustees under this second deed of trust, and purchased it himself. Thereafter he treated the property as his own, and disregarded entirely his contract with Louden.</p> <p>Ellen F. Louden died October 1, 1890, and John A Louden died November 20, 1895. Ephraim Nash died February 26, 1894. Since the death of Nash his widow, Jane Nash, and his children, who are the other appellants, have been in continuous possession of the property in question, and have treated the same as their property.</p> <p>On the 24th of February, 1905, the court below entered a decree adjudging the complainants to be entitled to specific performance of said agreement of June 18, 1889, and referring the matter to the auditor to state an account. In the auditor’s report, he says: “The case presents some difficulty owing to the fact that it distinctly appears that no account of the dealings of Nash with this property in his lifetime or of his widow and heirs after his death was ever rendered to the Loudens or their successors in interest, nor does it appear that any account was kept of either the rents received or expenditures actually made for or on account of the property.”</p> <p>After carefully considering the testimony in the case, the - auditor finds that Nash and his wife and heirs, at the close of the year 1896, “had received net rents sufficient to pay the second trust notes in full, all the interest which had accrued on the note secured by the first trust, and had a balance of $81.88 of rents in hands.”</p> <p>The final decree, entered June 24, 1908, adjudged that the complainants have title to said property free and discharged of any claims and demands of the defendants or any of them, and that the defendants forthwith surrender possession of said premises to said complainants, and pay to the complainants $98.13, and account for rents from the 29th of February, 1908.</p>

Hearing on an appeal by the defendants from a decree of the Supreme Court of the District of Columbia, vacating an alleged fraudulent conveyance, the cause having been heard on bill and answers.

Hearing on an appeal by the plaintiff from an order of the Supreme Court of the District of Columbia, vacating and quashing an attempted service of process upon the defendant in an action upon an arbitration award. The Court in the opinion stated the facts as follows: This action was begun by the Ferguson Contracting Company to recover the sum of $96,270.99 with interest, on an award of arbitrators.

<p>Hearing on an appeal by a garnisb.ee from a judgment of tbe Supreme Court of tbe District of Columbia.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from a judgment of the supreme court of the District of Columbia against appellant, The International Seal Company, as garnishee of the Grant Manufacturing Company, the principal defendant, against whom judgment by default had been previously entered.</p> <p>The appellant corporation was served with interrogatories to be answered under oath. Within the time in which it was required to answer there was filed in the case, in its behalf, the following:</p> <p>Interrogatories.</p> <p>1st. Are you now, or were you at the time of garnishment, indebted to the defendant: if so, how, and what amount ?</p> <p>Answer. No.</p> <p>2d. Have you now, or had you, at the time of service of the notice, or have you had at any time between the date of service and the time of answering, any goods, chattels, or credits of the defendant ?</p> <p>Answer. No.</p> <p>3. Have you any contract with the defendant for the payment by you to it of any money for purchase money or for royalty ? If so, produce and file a copy thereof with your answer hereto.</p> <p>No. I am the secretary and treasurer of the International Seal Company.</p> <p>Horace Gabel,</p> <p>Sec’y and Treas.</p> <p>This affidavit was duly subscribed and sworn to before a notary public.</p> <p>Thereafter plaintiff, Louis Beyer, Jr., appellee here, moved the court for judgment of condemnation against the appellant as garnishee, which motion was granted by the court on the ground of the insufficiency of the “affidavit of defense.” Thereafter a motion was made in behalf of the appellant as garnishee to set aside the judgment against it. Hpon consideration of this motion. it was overruled, and an appeal was thereupon entered from said judgment of condemnation.</p>

<p>Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia, sitting as an equity court, in a suit for the construction of a will.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from a decree of the supreme court of the Ditsrict of Columbia in equity. The appellee, Betty G. Bayne, complainant below, filed her bill against the appellant, American Security & Trust Company, a corporation, seeking a construction of the will of William H. Payne, deceased, and especially the eighth clause thereof, for the determination of the rights of the complainant in respect to the income on certain bonds held in trust by the appellant, defendant below, for her use, and requesting that the defendant be instructed and directed to pay over to complainant the whole income received by it upon said bonds, as well as the whole income which may hereafter be received from the same source.</p> <p>It appears that complainant is one of the beneficiaries under the eighth clause of the last will and testament of William H. Payne, deceased, which provision in the will is as follows:</p> <p>“8th. In wills and codicils heretofore made I have separated the share of my son Arthur from the shares of the rest of my children for reasons adequate aand satisfactory to me. The reasons still continue and I now bequeath to my son Arthur Morson Payne the sum of twenty-six thousand dollars ($26,000) for and during the joint lives of himself and his wife, Betty; and if my son Arthur survive his said wife, then upon her death to him absolutely; and if his said wife survive him, then upon his death I give and bequeath the said legacy to the company now having an office on G street between Fourteenth and Fifteenth streets N. W., in the city of Washington, and known as “American Security & Trust Company,” in and upon the following trusts and none other; that is to say, in trust to invest, reinvest, and keep invested and pay over the income to my said daughter-in-law Bettie for the full term of her natural life, and my said beloved and honored daughter-in-law is hereby empowered to bequeath said legacy to such of my children or grandchildren as she may elect; and in case she does not exercise this power, then from and after her death the said legacy shall go to and be distributed among my own heirs; I should say my own next of kin.”</p> <p>After the death of the testator, a question arose as to whether the executor should pay over to Arthur Morson Payne the said legacy of $26,000, or should retain the same during the joint lives of Arthur Morson Payne and his wife, paying to the husband only the income derived therefrom. This question was taken into the supreme court of the District, and it was there held that the legacy should be turned over to Arthur Morson Payne. On appeal to this court (26 App. D. C. 283, 6 A. & E. Ann. Gas. 784) the finding of the lower court was reversed, and the executor was directed to pay the proceeds of said legacy to Arthur Morson Payne during the joint lives of him and his wife.</p> <p>On March 13, 1906, the executor petitioned the probate court for directions as to the investment of the legacy, and, upon hearing, the court entered the following decree: “This cause coming on to be heard on the petition of Leigh Robinson, executor of William H. Payne, deceased, this day filed, the letter of Charles O. Glover, as to the value of the Virginia Midland bonds, retained for the purpose of this legacy, and the letter of Arthur Morson Payne, of March 10, 1906, in relation thereto, and the questions presented thereby having been fully con- . sidered by the court, it is, this 13th day of March, a. d., 1906, adjudged, ordered, and decreed that the said Leigh Robinson, executor, be and is hereby authorized and directed to retain as of March 1, 1906, either twenty-three of said bonds, subject to repayment to the estate of $105, or twenty-two of said bonds, leaving a surplus to be invested under the order of the court; and in either case applying to the purpose of the legacy the coupons for interest annexed to said bonds, and payable on the said 1st of March, 1906.”</p> <p>At the time this order was made, the executor had in his possession twenty-three of the bonds of the Virginia Midland Railway, worth at that time on the market 113%. He also had two or more five-hundred-dollar 6 per cent bonds of the Charlottesville & Rapidan Railroad, of the market value of 101. Said bonds had been owned by the testator in his lifetime, and came into the hands of the executor as part of his estate. Pursuant to the above order of court, the executor retained as part of said legacy of $26,000, twenty-two of the said Virginia Midland Railway Company’s bonds, of a total market value of $24,970, and two of said Charlottesville & Rapidan Railway Company’s bonds, of an aggregate value of $1,010, the remaining $20 of said legacy, together with $3.40, added by Arthur Morson Payne out of his income, being invested in a bond of the Washington Gaslight Company.</p> <p>On November 5, 1906, the executor returned into court a detailed statement of the setting aside of said railway bonds at their market value as a part of said legacy, and the account was, pursuant to the orders made by the probate court of January 26, 1906, and March 13, 1906, in execution of said mandate of the court of appeals, duly passed and approved. This account also showed the executor’s payment to Arthur Morson Payne of the whole proceeds of the interest on said bonds. It further appears that the executor continued to collect said interest and pay over the whole of it to Arthur Morson Payne until the date of his death, October 9, 1907. On January 27, 1908, the executor’s action in this regard was duly approved by the probate court’s passing and approving his final report and account, in which such payments were set out, and directing that the legacy be turned over to the American Security & Trust Company, named as trustee in the eighth clause of the will.</p> <p>The trust company refused to receive the bonds from the executor except upon condition that it be authorized and empowered to deduct from the income accruing to the beneficiary the amount of the difference between the par value of the bonds and the value placed on the same by the probate court at the time they were set aside for the purposes of the trust, such deductions to be added to the principal of the fund. The executor petitioned the probate court to require said trust company to receipt for the fund as then invested and free from the right to make such deductions. On December 23, 1901, the probate court ordered said trust company to receipt specifically for the trust set aside as then invested, but referred to the equity court any questions as to the administration of the trust. The executor accordingly turned over the bonds of the trust company, which has since refused to pay appellee the whole interest on said bonds, but insisted on making deductions in accordance with its proposal to the executor.</p> <p>The court below, in its decree in the present proceeding, directed the defendant company “to turn over to complainant, Betty Gr. Payne, or her solicitor of record in this cause, the several amounts over and above its reasonable commission for collection, which it has deducted from the proceeds of coupons for interest on the two (2) bonds of the Charlottesville & Bapidan Bailway Company and the twenty-two (22) bonds of the Virginia Midland Bailway Company held by said American Security & Trust Company as such trustee, and that henceforth said company, as such trustee, shall collect the coupons for interest on each of said bonds when and as said coupons respectively fall due, and shall thereupon at once turn over to said Betty Gr. Payne, or her assigns, the full proceeds of each coupon, deducting only its legitimate commissions for collecting; that whether the said American Security & Trust Company, as such trustee, retain said bonds until maturity, or whether it sell said bonds, or whether it sell part and retain part, the amount which it may receive as the proceeds thereof shall, after deducting any accrued interest, be deemed to be the principal which, by order of the probate court, made December 23, 1907, was directed to be delivered to said American Security Trust Company by the executor of the last will and testament of William H. Payne, deceased; and that, upon any investment or reinvestment thereof by said American Security & Trust Company, the full income thereon shall be paid to complainant, less only the legitimate commission of the trustee for collecting.” From this decree the defendant company comes here on appeal.</p>

Hearing on an appeal by the complainant from a decree of tbe Supreme Court of the District of Columbia, sustaining a demurrer to and dismissing a bill in equity for the construction of a will. The facts are stated in the opinion.

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 replevin. The Court in the opinion stated the facts as follows: This is a suit in replevin, originally brought by appellee, Sadie L. Hooker, before a justice of the peace, to recover possession of eight promissory notes for the sum of $33.3d each.

<p>Appeal by tbe relators from a judgment of tbe Supreme Court of the District of Columbia sustaining a demurrer to and dismissing a petition for the writ of mandamus.</p>

The Court in the opinion stated the facts as follows: This case is before us on a writ of error granted to review a judgment of the police court.

<p>Ex parte petition by a disbarred attorney for reinstatement as a member of the bar of this court.</p>

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, overruling his exceptions to the auditor’s report and confirming the same, in a suit to require the surrender of a bond for cancelation and the execution of a release of a deed of trust.

<p>Patents; Former Adjudication; Trademarks.</p> <p>1. The doctrine of res judicata applies to proceedings in the Patent Office in the same manner as in the courts. (Following Blackford v. Wilder, 28 App. D. C. 535; Horine v. Wende, 29 App. D. C. 415; Re Edison, 30 App. D. C. 321; United States ex rel. Newcomb Motor Co. v. Moore, 30 App. D. C. 464; and Carroll v. Hallwood, 31 App. D. C. 165.)</p> <p>2. The plea of former adjudication to an opposition to an application for registration of a trademark is properly sustained by the Commissioner of Patents, where, in a previous interference proceeding between the opposer and applicant, decided in favor of the applicant, one of the questions raised in the opposition was determined, and the other question could have been determined, although it was not actually presented. (Citing Bluthenthal v. Bigbie, 30 App. D. C. 118, and following Schuster Co. v. Muller, 28 App. D. C. 409, and Levy v. Uri, 31 App. D. C. 441.)</p>

Hearing on an appeal by the relators from a judgment of the Supreme Court of the District of Columbia overruling a demurrer to the return of a petition for the writ of mandamus, and, the relators electing to stand on the demurrer, dismissing the petition.

<p>Patents; Interference; Diligence; Reduction to Practice.</p> <p>1. The question of diligence is one depending upon the facts of each case. What is reasonable time in one case may, under the circumstances, be unreasonable in another. Much latitude will be granted an inventor who has been delayed by reason of circumstances over which he has no control, but no leniency should be extended him where the delay is caused by his negligence or for a manifest ulterior purpose.</p> <p>2. Where, in an interference proceeding involving a cutter head for wood-planing machines, it appeared that the party who first conceived the invention delayed reducing it to practice by filing an application for fifteen months after his rival came into the field, during which time the latter, within sixty days, constructed a machine and successfully operated it, and that the sole object of the former party in delaying filing of his application was to enable him to secure a patent upon an earlier application for a similar device of which the invention of the issue was an improvement, there is lack of diligence on his part, and the other party is entitled to an award of priority.</p> <p>3. In an interference involving a cutter head for wood-planing machines, it was held that not only was the completion of drawings of the device and their disclosure to others not a reduction to practice, but that, in view of the hard usage to which the device would be subjected in actual practice, even the construction of the device, in the absence of a test as to its ability to perform the functions claimed for it, would not constitute a reduction to practice.</p>

Hearing on an appeal from a decision of the Commissioner of Patents rejecting an application to register a mark as a trademark. The Court in the opinion stated the facts as follows: This appeal brings into review the decision of the Commissioner of Patents refusing to register the words “Our Worth” as a trademark for hatchets, axes, saws, pocket knives, razors,, scissors, chisels, adzes, planes, and drawing knives.

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

Hearing on an appeal by the complainant and the surety on his bond, in a suit in equity for an injunction from a decree of the Supreme Court of the District of Columbia awarding damages against him and the surety upon an undertaking given to obtain a restraining order.

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

Hearing on an appeal by the claimant of goods seized under a writ of replevin, from a judgment of the Supreme Court of the District of Columbia, directing a verdict for the plaintiff and against the claimant. The Court in the opinion stated the facts as follows: This case began in the justice’s court. The appellee, the Wm. Knabe & Co. Manufacturing Company, obtained a writ of replevin against one Charles R. Johnson for the recovery of a piano.

<p>Hearing on an appeal by tbe defendants from a decree of tbe Supreme Court of tbe District of Columbia, sitting as a court of equity, in a suit to remove cloud from title.</p> <p>Tbe Court in tbe opinion stated tbe facts as follows:</p> <p>Tbis suit was begun by Henry P. Sanders against tbe appellants, Alexander D. Johnson, Elise Tbomas Berry, Louise Y. B. Duvall, Imogene Berry Tubman, et al., wbo are tbe descendants of three of tbe daughters of Washington Berry, deceased, to remove cloud from title to certain parcels of land in the District of Columbia, parts of a tract called Metropolis View, of which the said Washington Berry was seised and possessed at the time of his death, in 1856. Complainant avers that he is seised as of fee of said parcels of land, which were conveyed to him by deed from Lydia A. Edmonds, December 15, 1905, that said Metropolis View tract, containing about 410 acres of land, was owned and occupied by Washington Berry as a home at the time of his death, in 1856. That complainant derives his title to the said parcels through certain conveyances of record and under and through certain proceedings and decrees had and passed by the supreme court of the District of Columbia in equity cause No. 500, begun September, 1865, wherein Anna Maria Middleton and other persons named wer¿ defendants, the said defendants comprising the children of said Washington Berry. It was alleged in the bill in that cause that, at the time of his death, said Washington Berry had five daughters and three sons living, and was survived by his widow, Eliza Thomas Berry. That by will made in 1852, the said Washington Berry devised the said Metropolis View tract, which was his homestead, to his said widow for life, and provided that said estate should be kept and reserved as a home for his daughters so long as they should remain single and unmarried, and after the death of his said widow he devised the said estate to his daughters being single and unmarried, and, on the death or marriage of the last of them, directed that said estate should be sold by his executors, and proceeds of the sale distributed among his daughters living at his death, and their children and descendants per stripes. That Eliza Thomas Berry and Washington L. Berry were appointed executors of said will. The said Eliza Thomas Berry assumed the office of executrix and Washington L. Berry declined. That, at the death of testator, all of his said daughters were unmarried except Anna Maria, who was intermarried with John A. Middleton. That the rest of said daughters had, except said Eliza Thomas, who remained single, married, and that all of the said children and heirs at law of testator had attained the age of twenty-one years, except Rosalie Eugenia,' who was then eighteen years of age. That the said estate of Metropolis View was not capable of advantageous partition among the said daughters, and, if so capable, partition could not be made, owing to the nonage of said Rosalie Eugenia, and that the sale of said real estate would be to the interest and advantage of said infant as well as of the other devisees thereof. That the said Eliza Thomas, the only one of said devisees unmarried, was willing to relinquish her right to the possession and enjoyment of said estate whilst unmarried, and to assent to the sale thereof and the equal division of the proceeds of sale irrespective of such right of possession and enjoyment. That during the late war the said estate had been mainly in the occupation of soldiers, by whom much injury had been done thereto, and the rents and profits had not been sufficient to pay taxes and make repairs. That the vault reserved by said will had been destroyed, so that it was necessary to remove the bodies therein deposited, and that, in consequence of said destruction, all of the aforesaid heirs at law were willing that said burial ground should be sold with the residue of said estate, and that the proceeds of said burial ground should be equally distributed among all of said heirs at law. That the purchase and maintenance of said estate by said sons of said testator, or some of them, was impracticable for want of means, and that the retention of said burial ground and vault after the residue of said estate had passed into other hands, would not be in accordance with the intention of the testator. Complainant alleges that all of the defendants to said equity cause No. 500 appeared and answered said bill, consenting to the relief prayed for therein, the said Rosalie Eugenia by a guardian ad litem,, appointed in her presence and with her consent by the court. That the said Eliza T. Berry, in and by her answer, stated that she was willing to relinquish, and thereby did relinquish, upon the sale of the estate in the bill mentioned, her right to the possession and enjoyment thereof whilst unmarried, and consented to the distribution of proceeds of sale as prayed by said bill. That said equity cause No. 500 was thereupon referred to the auditor of the court on the 19th of September, 1865, with direction to take testimony and report the same to the court, and also whether the sale of the real estate in the bill mentioned would be to the interest of the infant defendant in said cause. The said auditor took depositions, and, on September 27, 1865, submitted a report wherein he stated that Washington Berry had died in 1856, seised of the property consisting of a large mansion and 410 acres of land, haying by his will of the 28th of July, 1852, given the same, as well as portions of his personal property, to his wife for life for the education and support of their five daughters, the same to be kept as a home for them as long as they or either of them should remain unmarried, and, on the death or marriage of the last, his wife being dead, he directed the said estate to be sold and the proceeds divided among his said daughters, reserving the family burial ground to his heirs, and urging some of his sons to purchase the homestead, that it might be kept in the family. He further reported that the widow of said testator had, shortly after his death, discontinued her residence at the said homestead, and removed with her family to the city of Washington, and had since died; that all of said daughters had married except said Eliza T., who had not resided at said homestead since her mother left it, and had offered to give up her right of occupation so as to advance the period of sale directed by the testator. That said witnesses had described the property as being an unfit residence for the unmarried daughter, and the land as being generally poor and unproductive as a farm, and that the buildings and fences had become much out of order and repair, and that it would be to the interest of all the parties that it be sold and in parcels, and that all the devisees desired a sale, and that none of the testator’s sons was in a condition to become a purchaser; that it was a fit case for sale. That, thereupon, the court passed a decree directing that the said land, with appurtenances, be sold, and appointed John A. Middleton and Thomas W. Berry trustees to make such sale, and authorized them, in their-discretion, to divide into parcels the said real estate, and sell the same so divided, instead of as a whole, and, on the final ratification of such sales and the payment of the purchase money, to convey to the purchaser or purchasers in fee simple the property to him or her or them sold. That the trustees appointed by said decree divided said land into lots numbered from 1 to 36, inclusive, and made sale of certain, of them at public auction to John McGuire in October, 1865, and subsequently, in 1868, upon the petition of Mary E. L. Johnson and Eosalie E. Berry, two of the defendants, stating that they had families and children to support and were in need of money which would come to them in case of a sale of said real estate, the court ordered the said trustees to sell the residue of said estate, and said trustees thereafter sold at public sale the remaining lots in said subdivision, the sales aggregating over $100,000, all of which was subsequently ratified on, to wit, October 12, 1868, and the trustees authorized to convey said lots to the respective purchasers thereof. The names of the purchasers are then given. Among these appear sales to Eliza T. Berry, John A. Middleton, Eosalie E. Berry, A. Louise Berry, and Mary E. Johnson, all parties to said proceeding. That said deeds were duly recorded between the years 1866 and 1877, and that, in the interval between this and the filing of this bill, the said Metropolis View was divided into hundreds of separate parcels or holdings with different owners, and is now so held. That all of said titles have been passed and approved without a question of doubt by all lawyers and title companies engaged in examining and passing titles; that through said conveyances the complainant derived title to the parcels of land described in this bill, and he and those under whom he claims have, for thirty-five years or more, been in exclusive and continuous possession and control of the same, paying all taxes and assessments, and relying upon the validity of their title, acquired bona fide for a valuable consideration, without notice or suspicion of the hostile or adverse claim now set up by the defendants.</p> <p>The bill further avers that, on the 1st day of August, 1906, the defendants herein, naming them, filed suit in the supreme court of the District of Columbia against certain other of the defendants herein, averring in substance, among other things, that, in the year 1856, Washington Berry, grandfather of all the parties to said cause, departed this life seised and possessed of the tract of land known as Metropolis View; that he left surviving him as his sole heirs at law three sons and five daughters, naming the same; that he left a will containing the following clause:</p> <p>“Item 5. It is my will and desire that my said homestead shall be kept and continued as the home and residence of my daughters so long as they shall remain single and unmarried. I therefore first after the death of my wife will and devise the said estate to my said daughters being single and unmarried and to the survivor and survivors of them so long as they shall be and remain single and unmarried, and on the death or marriage of the last of them I direct that the said estate shall be sold by my executors and the proceeds thereof be distributed among my daughters living at my death, and their children and descendants (per stirpes), and I hereby reserve to my heirs the family vault and burial ground embracing half an acre of ground around and having the said vault as a center and on such sale as aforesaid by my said executors I earnestly enjoin it on my sons or some of their sons to purchase the said homestead that it may be kept in the family.”</p> <p>A copy of said entire will is made an exhibit to the bill.</p> <p>In the two first items of said will testator devised to each of his two sons in fee certain lands described therein, each being upon condition that the devisee shall execute deeds to his said daughters of certain lands devised to them by their grandfather. Item 3. devises another tract of land to his other son in fee. Another item is to the effect that, although in the devise hereinbefore made to the three sons the testator used words of inheritance, yet he expressly annexed to the estates so given to them this limitation, that, if either of them shall die without leaving lawful issue, the estate of each one, or both, if more than one, shall go to the survivor or survivors, his and their heirs.- Item 4 gives the Metropolis View estate to his widow for life and also certain stocks and all rents and money on hand or which may be due on bonds, bills, or notes, subject, nevertheless, the whole and every part of the said bequest to my said wife in the first place to the proper and comfortable support and maintenance and education, according to their condition and prospects, of my five daughters (naming them) so long as they and each of them remain single and unmarried, and upon their marriage and birth of issue of each and every one of them respectively to pay and deliver to such one or more so married and having issue her just, full, and equal one sixth part of the personal estate so as aforesaid given to my said wife.</p> <p>Item 5, heretofore copied, then follows.</p> <p>Item 6 directs that the executors shall divide and distribute all the rest and remainder of the personal estate among the testator’s children at his death, and the descendants of such as may have died during his life to take a parent’s part.</p> <p>Item 1 provides for revoking every devise and bequest made to any one of his devisees or legatees who shall institute any action to set aside the will. Eliza T. Berry, wife, and W. L. Berry, son, were appointed executors. The will is dated July 28, 1852.</p> <p>The said bill last referred to further averred that Eliza T. Berry, widow, died in 1864; that all of testator’s daughters married, except Eliza T. Berry, who never married, and died in March, 1903. Said bill then set out in detail the relationship of the parties to said cause to the said Washington Berry, showing complainants therein to be children of the daughters, other than Eliza T. Berry, of the said testator, and alleged that if the legal title to said property was vested in either the decedent, Eliza T. Berry, or the decedent, Washington L. Berry, said title is now vested in the parties to said cause, or some of them. The bill further alleged that, under the terms of the will of testator, upon the death of Eliza T. Berry, the daughter of testator, the entire equitable interest in said real estate vested in fee simple in the complainants to said bill; that by court proceedings in the case of Middleton v. Berry, No. 500, heretofore referred to, said Middleton and another were appointed to sell said land, and through deeds executed by them, said land was attempted to be sold and conveyed to various persons, and all of said land is now held.by persons claiming adversely to complainants. That when said bill was filed and said sales were made by said trustees, the complainants Alexander D. Johnson, Elise Thomas Berry, John H. Berry, Leila T. Berry, Albert L. Berry, and John A. Middleton were in existence; that they were all minors and none of them were made parties to said suit, or in any wise represented therein. Complainants therefore averred that their rights and interests in said lands were not affected by the proceedings in said case or by the said sales, and they prayed for process and general relief, that a trustee might be appointed in place of said Eliza T. Berry and Washington L. Berry, named as executors in said will, and that the legal title vested in the parties to said last-mentioned suit, or any of them, be transferred to such trustee, to be appointed by decree of this court. The complainant in the present bill avers further, that, on the 20th of February, 1907, a decree was passed in said equity cause No. 26,464, appointing the defendants Thomas W. B. Middleton and Eugene Benton Berry trustees under the last will and testament of Washington Berry; that, since the passing of said decree, no further proceedings have been had in said cause or by said trustees, to enforce any claim or demand they may have against this .complainant by virtue of the said will and of said decree. That, upon the proper interpretation thereof, and the interpretation declared in said equity cause No. 500, and by virtue of the proceedings had therein and the conveyance made thereunder, a good and indefeasible title in fee simple to said real estate passed to and became vested in the purchaser from the said trustees, John A. Middleton and Thomas W. Berry, and that said title passed, by mesne conveyances, and is now vested in the complainant to this suit. That complainant has also acquired and has a good and indefeasible title to said real estate by adverse possession; that no claim or demand has been made upon him or those under whom he claims in regard to his title to said real estate until the said equity suit No. 26,464 was brought by the said defendants hereto, and which is now pending in this court. That said claim, if it existed, was unknown to complainant. That the claims and averments contained therein create a cloud upon complainant’s title, and the menace of future litigation of such a public and notorious character that, although the same does not create a lis pendens as to complainant, it effectually prevents him from disposing of his property, either by sale or by encumbrance, and prevents examiners of titles from passing his title without mention of said pending cause. That the value of the land described in the bill is over $5,000. Complainant further avers that he is advised that the construction given by the court in said equity cause No. 500 as to the effect of said will of Washington Berry to vest in his daughters living at his death the absolute interest in the proceeds of sale, and the right to have advanced the time for sale and distribution, the prior purposes and trusts having been accomplished, and the construction given to wills containing similar provisions, by said court and others, establish beyond question the validity of the titles derived through the aforesaid equity cause No. 500.</p> <p>The prayer is that complainant’s title be declared complete and perfect, and that the defendants, each of them, may be perpetually enjoined from asserting any title, by sale or otherwise, or making any claim to or demand against said real estate, or any part thereof, as against said complainant, his heirs or assigns, and especially that the trustees aforesaid be restrained and enjoined from further proceedings, either in law or equity, or in any other manner, and from further asserting or claiming any right, title, or interest in and to the real estate described in complainant’s bill.</p> <p>As exhibits to said bill are filed the conveyance under which complainant claims, a transcript of the record in said equity cause No. 500, heretofore referred to, showing the order and decree therein, and the will of Washington Berry.</p> <p>The answer to said bill admits the general facts alleged in the complainant’s bill in regard to the will of Washington Berry, the names, ages, and conditions of his several children, and the proceedings set out in said bill. The answer further says that certain of the defendants were living at the time of the filing of the bill in said cause No. 500, and others have been born since, but avers that these defendants are advised that since none of them who were bom before said equity proceeding No. 500 were made parties thereto, and since these defendants, born and unborn at that time, were not in any wise represented in said equity cause No. 500, neither the decree made therein nor any sale made in pursuance thereof is of any effect against these defendants or any of them. They aver that, upon the proper interpretation of the will of Washington Berry, they are the legal or equitable owners in fee of the real estate described in the bill, and that the proceeding in said equity cause and the conveyance made by the trustees therein did not and do not in any wise affect the said title and ownership of defendants in said land. They admit the possession of complainant of the land, but they say that same was not adverse to them until May, 1903, because, while they had a legal or equitable interest in fee simple in said land, they had no right of entry until May, 1903, when said Eliza Thomas Berry, last survivor of the daughters of Washington Berry, died, never having been married. They admit that they did not themselves assert any interest or title in or to any part of said land until after the death of said Eliza Thomas Berry. They admit that they have a claim and have asserted and intend to assert, that they are the legal or equitable owners in fee of the land described in the bill of complainant, as well as of the whole of said Metropolis’ View tract. They admit that their claim is a cloud upon the title of complainant (if the complainant have any such title, which is denied), and that the complainant is thereby prevented from disposing of the property by sale or by encumbrance. They admit that the value of the land described in the bill is over $5,000. They aver that the only reason the trustees appointed in said equity cause No. 26,464 did not proceed at once to sell said tract called Metropolis View was that several of the persons claiming parts of the same adversely to defendants were, and for a long time continued to be, engaged in negotiation looking to the bringing of a test suit or suits to decide once and for all, and with as little expense and delay as possible, the proper construction of that paragraph of the will of Washington Berry under which these defendants claim title. Being so advised, they deny that the effect of said will was to vest in the daughters of Washington Berry the absolute interest in the proceeds of the sale of Metropolis View, and deny that said daughters or any of them had the right to have advanced the time for selling and distributing the proceeds under the terms of the will of Washington Berry.</p> <p>After replication filed, testimony was taken. Complainant introduced the transcript of the records of the different equity suits described in the bill and of the proceedings therein, together with orders confirming the sales made by the trustees. He introduced testimony, also, of several officers of title insurance companies in the District of Columbia, who testified that they had passed the titles to the said property on the ground that, under the construction of the will, Item 5 vested an absolute title in the daughters of said Washington Berry, and that the proceedings advancing the sale were regular and binding.</p> <p>Defendants introduced proof identifying the various defendants in the hill as descendants of the daughters of Washington Berry, all of whom are parties to the suit.</p> <p>Before decree- rendered, the complainant Henry P. Sanders died, leaving a last will and testament, appointing the Washington Loan & Trust Company executor and trustee, and, upon petition of said company, it was made a party complainant in place of said Henry P. Sanders, deceased, with right to prosecute said cause to final hearing and decree.</p> <p>On hearing, the court granted the prayer of the bill ordering a perpetual injunction against the defendants, or any of them, from asserting any title, claim, or demand against the said land. Prom that decree this appeal has been taken.</p>

<p>Hearing on an appeal from a decree of the Supreme Court of the District of Columbia, sitting as an equity court, directing an executrix and trustee to pay over to the complainant a fund in their hands with accretions.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from the supreme court of the District, directing the defendant, Alida Catherine Brown, one of the appellants here, as executrix of the defendant trustee, John Marshall Brown, to pay over to the complainant, Clarence B. Hight, or to his solicitor, $2,352.37, with its accretions. -Under the will of Mrs. Sally Carroll, deceased, her executors, of whom John Marshall Brown alone qualified, were directed to hold in trust $10,000, the income to be paid to her son, Charles H. Carroll, and at his death $3,000 was directed to be paid to Carroll Mercer, a grandson of the testatrix, and the remaining $7,000 was directed to he paid to another grandson, John Francis Mercer. The legacy abated to the sum of $7,841.24, owing to the insufficiency of the assets of the estate. The annuitant, Charles H. Carroll, died on or about January 14, 1906, and the proportionate share of said Carroll Mercer of said bequest, which was payable upon the death of the annuitant, was the sum of $2,352.37, the amount directed to be paid the complainant by the decree from which this' appeal is prosecuted.</p> <p>Upon the filing of the bill the defendant, John Marshall Brown, made answer under oath, and subsequently an answer under oath was filed by said Carroll Mercer, leave of court to intervene having been obtained. Thereupon testimony was taken, and the cause heard upon the bill, answers, and testimony.</p> <p>Mercer, at the time of the transaction out of which this suit grew, was a wreck of his former self. Formerly he had been surrounded by everything that wealth and social distinction could secure, but his habits wrought a complete change in his situation and left him alone and practically penniless. His condition was such that the only work he was able to secure was in a real estate office at a salary of $7 a week, where his duties consisted of directing envelopes to friends of his prosperous days. Even this position he was unable long to hold, so complete was his downfall: While he was holding this position, and in such a condition mentally and physically that several reputable witnesses testified he was absolutely incapable of transacting business, he applied to one Baker to secure him a loan on his expectancy in said bequest. Thereupon on October 10, 1905, at Baker’s suggestion, he addressed a communication to F. D. McKenney, Esq., who represented the executor in the District of Columbia, asking for information concerning the age, condition of health, and residence of said annuitant, Charles H. Carroll, and also as to the amount he, Mercer, would receive at the time of said Carroll’s death. On the same day Mr. McKenney wrote him that, at the death of his uncle, Mr. Charles H. Carroll, $2,352.24 would become his own, but that he had no information as to the whereabouts of Mr. Carroll, nor “as to his age nor present condition of health.” Baker, having had several business transactions with the complainant, Hight, says he approached him with a view of selling him Mercer’s interest in said bequest. The evidence is not clear as to the length of time covered by the negotiations with complainant, but it does appear from both complainant’s and Baker’s testimony, that just prior to November 11, 1905, Baker was given $100 by complainant and directed “to go ahead and make the deal” with Mercer; that thereupon on said November 11th Baker gave Mercer $75 out of the $100 and secured his signature to the following paper:</p> <p>November 11, 1905.</p> <p>For value received I assign all my right, title, and interest in the estate of the late Sally S. Carroll, the said interest consisting of a three sevenths interest in a certain deed of trust given on the property known as 1801 E Street Northwest, Washington, District of Columbia, the said deed of trust having been given by Hon. M. W. Fuller and Mary E. Fuller, his wife, to secure the payment of $7,841.24. My interest in the above deed of trust, amounting to three sevenths of the above amount, I assign to C. B. Hight in consideration of the payment of $75 in hand this day paid me by his authorized agent, N. H. Baker. The said C. B. Hight agrees to deed to whomsoever I may designate a deed for a certain lot located on Baynor avenue, Baltimore, Maryland, and also agrees to loan me in addition to the sum received from N. H. Baker a further amount of $425, the said five hundred dollars to be secured to the C. B. Hight by a first deed of trust on the Baynor avenue lot.</p> <p>It is understood that the said interest that I am here selling is sold subject to a life estate in the said trust given by M. W. Fuller and wife. The said life interest being held by my uncle, Charles Carroll, who was born in the year 1839.</p> <p>In witness to the above I set my hand and seal.</p> <p>Witness: Carroll Mercer. (Seal.)</p> <p>N. H. Baker.</p> <p>Baker, who is complainant’s witness, swears he submitted this paper to complainant, who thereupon in substance stated that Baker had misunderstood him; that he was unwilling to advance more than $275 in the deal; and that he preferred to lose what he had already put in rather than advance more than that sum. Thereupon Baker procured Mercer to execute the following papers:</p> <p>This agreement, made this 16th day of November in the year one thousand nine hundred and five by and between Carroll Mercer of the city of Washington, District of Columbia, party of the first part, and Clarence B. Hight, of the same place, party of the second part:</p> <p>Whereas, the said Hight has this day loaned to the said Mercer the sum of two hundred and seventy-five dollars ($275) the receipt of which the said Mercer hereby acknowledges.</p> <p>Now, therefore, the said Hight hereby agrees, upon repayment of the said sum of two hundred and seventy-five dollars ($275) with interest at the rate of 6 per cent from date to the time of said repayment, provided same shall occur within the period of twelve months from the date hereof, and in that event only, to deed to the said Mercer in fee simple and without encumbrance of any sort,</p> <p>The lot of ground situate, lying, and being in Baltimore city, State of Maryland, and described as follows: (Here follows a description of the premises)</p> <p>-x *■***•*■ *•</p> <p>Witness, the hand and seals of the parties hereto, this day and year first above written.</p> <p>Carroll Mercer. (Seal.)</p> <p>Test: Clarence B. Hight. (Seal.)</p> <p>Nathan H. Baker.</p> <p>I, Carroll Mercer, of the city of Washington, District of Columbia, being one of the legatees named in the last will and testament of my grandmother, Sally S. Carroll, whose will is duly recorded in the office of the register of wills in said District, do hereby, for good and valuable consideration, the receipt whereof at and before the signing and delivery of these presents is hereby acknowledged, sell, assign, transfer, and assign to Clarence B. Hight, of said city and District, all of my right, title, and interest in and to the legacy bequeathed to me by the said Sally S. Carroll by her said last will and testament.</p> <p>In testimony whereof I have hereunto set my hand and affixed my seal this 16th day of November, A. D. 1905.</p> <p>Carroll Mercer. (Seal.)</p> <p>Witness:</p> <p>P. J. Walshe.</p> <p>(This assignment was duly acknowledged before a Notary Public.)</p> <p>Complainant and Mercer never met, Baker acting as the intermediary. Complainant’s testimony is to the effect that, when he was approached by Baker, he offered to exchange the Baltimore property for Mercer’s interest in said bequest, and to loan something on said Baltimore lot, and that such was the arrangement evidenced by the papers that were finally executed. The appellants, on the other hand, contend that the transaction constituted nothing more than a loan from complainant to Mercer in the sum of $275, which was to be repaid with interest on or about December 16, 1906.</p>

Hearing on an appeal from a decision of the Commissioner of Patents declining to register the mark of either party to a trademark interference. The facts are stated in the opinion.

In Eeeoe to the Police Court of the District of Columbia. The Court in the opinion stated the facts as follows: This ease comes here on writ of error from the police court of the District of Columbia. The plaintiff in error, Horace M. Cake, was convicted of the crime of unlawfully selling intoxicating liquor on Sunday.

<p>Hearing on an appeal by tbe complainant from a decree of tbe Supreme Court of tbe District of Columbia, sitting as an equity court, dismissing a bill for specific performance.</p> <p>Tbe Court in tbe opinion stated tbe facts as follows:</p> <p>Tbis is an appeal from a decree of tbe supreme court of tbe District of Columbia dismissing a bill in equity filed by appellant, George W. Grice, complainant below, against appellee, David Jones, defendant, to compel specific performance of tbe following contract:</p> <p>Tbis agreement entered into by and between David Jones, principal devisee and one of tbe beirs at law of George Grice (deceased), and George W. Grice, one of tbe grandcbildren of tbe said George Grice.</p> <p>Witnesseth: Tbat whereas tbe said George Grice has died seised of a certain piece of real estate, to wit 12% ft. front, on Wilson st., adjoining tbe east 12% ft. by tbe full depth thereof of lot No. 3, in block No. 20 in Howard University subdivision, of tbe farm formerly owned by John A. Smith, and lying in tbe District of Columbia, as the same is recorded in tbe surveyor’s office of said District in book marked (District No. 1) at pages 66 and 67.</p> <p>And whereas, by tbe last will and testament of tbe said George Grice, said David Jones is made the principal devisee and is named as executor.</p> <p>Tbat tbe said David Jones has renounced bis right to act as said executor, and consented tbat Thomas Walker, Esq., being made executor C. T. A.</p> <p>And whereas the said George W. Grice desires to purchase from said David Jones such right, title, and interest which he, tbe said Jones, may be found seised of, after said will has been duly probated and tbe right to sell bis interest shall have accrued, then tbe said George W. Grice agrees to purchase, and the said David Jones agrees to sell, bis right, title, and interest in and to the property above described for the agreed sum of $375, which sum is to be paid to the said David Jones without deduction of any kind, or liability on the part of said Jones for any debt, taxes, or other charge’ for which said property may be liable, upon the presentation by the said Jones to the said Grice of a deed conveying said interest. Twenty days’ grace are allowed to said Grice from the date above named.</p> <p>That, in order to secure the said Jones in the carrying out of this contract, the said Grice, party to this agreement, shall deposit the sum of $50 as earnest money at the signing of these presents, and it shall be counted as part of the said purchase money upon final settlement.</p> <p>But, if default is made by said Grice after the conditions herein described are complied with, the said $50 shall be forfeited to the said David Jones.</p> <p>. “In witness hereof the parties to this contract have hereunto set their hands and affixed their seals, this 4th day of May, 1908.</p> <p>David Jones (Seal.)</p> <p>Geo. W. Grice. (Seal.)</p> <p>Witnesseth:</p> <p>S. J. Block.</p> <p>Thomas Walker. ■</p> <p>I acknowledge the receipt of the above-named $50, to be held in escrow.</p> <p>S. J. Block.</p> <p>It appears that, on the execution of this agreement, the complainant deposited the sum of $50, as therein provided, leaving a balance due thereon of $325. The will of George Grice was duly admitted to probate August 5, 1908. During the interval between the making of the agreement and the admission of the will to probate, both complainant and defendant advanced certain sums in payment of interests claimed by the heirs and in settlement of claims against the estate of George Grice. These matters, however, are not material to the consideration of this appeal.</p> <p>Shortly after the admission of the will to probaate, defendant, by his actions, displayed a disposition to repudiate his contract. Hence, complainant, on August 11, 1908, tendered to defendant the sum of $298.50, the balance claimed by complainant to be due under the agreement, and demanded of defendant that he execute a deed for the property in question, in compliance with the terms of the agreement.. The tender was refused by defendant on the ground that, unless complainant paid one of the heirs, Arthur Grice, who was present when the tender was made, $100, he would not sign the deed, stating that he wanted to see Arthur Grice satisfied.</p> <p>It is contended by complainant that, at various times during the period intervening between the signing of the agreement and the time of making the tender, he had advanced to defendant small sums of money, amounting to a total sum of $26.50. This sum, deducted from $325, the balance due on the contract, left $298.50, the amount tendered.</p> <p>In the trial of the case below, the correctness of this account was denied by defendant; and upon this point the decision of the court seemed to turn. The court, in decreeing a dismissal of the bill because of the insufficiency of the tender, said: “There is no such evidence as would justify the court in finding that the $26.50 was paid to Jones on account of the $375, or even that that distinct amount was ever paid to him at all. It seems apparent from Ex, 4, in its present condition, that the entries were all made at the same time. The bill must be dismissed for want of a sufficient tender.”</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 denying an application for a patent. The facts are stated in the opinion.

Hearing on an appeal by tbe respondent from an order of the Supreme Court of the District of Columbia sustaining a demurrer by the petitioner for the writ of mandamus, to the return of the respondent to a rule to show cause why the writ should not issue, and directing the issuance of the writ.

<p>Hearing on an appeal by a property owner from a judgment of the Supreme Court of the District of Columbia, sitting as a District Court, overruling his exceptions in a proceeding to condemn land for street extension purposes, and confirming an award of a jury as to damages and benefits.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from the judgment of the supreme court of the District of Columbia, sitting as a district court, overruling the exceptions of appellant, John B. Henderson, and confirming the award of the jury as to damages and benefits caused by the extension of Harvard street.</p> <p>The proceeding was instituted under “An Act for the- Extension of Harvard Street, Columbia Heights, District of Columbia,” approved January 22, 1907 (34 Stat. at L. 856, chap. 389). The act is in three sections and reads as follows:</p> <p>“Be it enacted by the Senate and House of Bepresentatives of the United States of America in Congress assembled, That, under and in accordance with the provisions of sections four hundred and ninety-one a to four hundred and ninety-one n, both inclusive, of subchapter one of chapter fifteen of the Code of Law for the District of Columbia, within sixty days after the passage of this act the Commissioners of the District of Columbia be, and they are hereby, authorized and directed to institute in the supreme court of the District of .Columbia a proceeding in rem to condemn the land that may be necessary for the extension of Harvard street, Columbia Heights, in a straight line, with a width of sixty feet, more or less, to Sixteenth street northwest, upon such lines as the commissioners of the District of Columbia may deem most advantageous to the abutting property.</p> <p>“Sec. 2. That assessments shall be made by the jury as benefits, as contemplated in section four hundred and ninety-one g of the subchapter of the Code hereinbefore referred to: Provided, That the total amount found to be due and awarded as damages, plus the cost and expenses of the proceedings, shall be assessed by the said jury as benefits.</p> <p>“Sec. 3. That the sum of three hundred dollars, or so much thereof as may be necessary, is hereby appropriated, out of the revenues of the District of Columbia, to provide the necessary funds for the cost and expenses of the condemnation proceedings taken pursuant hereto, to be repaid to the District of Columbia from the assessment for benefits when the same are collected, and a sufficient sum to pay the amounts of all judgments and awards is hereby appropriated out of the revenues of the District of Columbia.”</p> <p>Section 491 g of the Code [34 Stat. at L. 152, chap. 2070] provides:</p> <p>“That * * * such amount shall he assessed by the jury as benefits, and to the extent of such benefits against the lots, pieces, or parcels of land on each side of the street, avenue, road, or highway to be opened, extended, widened, or straightened, and against any and all other lots, pieces, or parcels of land which the jury may find will be benefited by the opening, extension, widening, or straightening; * * * and, in determining the amounts to be assessed against said lots, pieces, or parcels of land, the jury shall take into consideration the respective situations, and topographical conditions of said lots, pieces, or parcels of land, and the benefits and advantages they may severally receive from the opening, extension, widening, or straightening of the street, avenue, road, or highway.”</p> <p>All the proceedings taken were in conformity with the requirements of the act.</p> <p>The court instructed the jury:</p> <p>(1) To find the present fair market value of the property to be taken or condemned.</p> <p>(2) As to the weight to be given to the opinion of witnesses.</p> <p>(3) “After ascertaining the amount of damages to be awarded the owners of the property taken, they shall then proceed to assess and apportion the full amount of such damages and the costs of these proceedings upon any property situated in the District of Columbia, which they find will be especially benefited by the opening and extension of said street, provided they find actual benefits to that amount. General benefits accruing to the community at large, and not specially to any piece of property, shall not be assessed.”</p> <p>(4) Benefits are of two classes: special benefits are those appreciably enhancing the value of the particular tract or tracts of land affected by the proposed public work; general benefits are advantages of a general character derived by the section of the city at large, and include such benefits as affect the whole neighborhood by increasing the facility of transportion, attracting population, and the like; that only special benefits are to be considered.</p> <p>(5) “The jury are instructed that it is not incumbent upon them to assess benefits arbitrarily, but they should only assess benefits where they honestly believe property will be benefited specially by this improvement.”</p> <p>A general exception was noted to'the charge. The appellant also filed an exception to the refusal of the court to charge:</p> <p>“In order to find special benefits in this case to any property, you must first find that those benefits are direct, certain, and proximate, and not such as are indirect, contingent, speculative, and remote.”</p> <p>The jury returned a verdict awarding the sum of $21,820.21 for all the property taken, and assessed the full amount, plus the cost of the proceedings, as benefits upon the property which it found to be specially benefited by the opening of said street.</p> <p>The following exceptions and objections were filed by appellant to the confirmation of the verdict:</p> <p>“1. The act of Congress under which this proceeding is instituted provides that the just compensation to be paid to this defendant shall be computed and assessed by five commissioners, improperly denominated a jury, instead of by a jury of twelve good and lawful men, duly qualified, impaneled, and accepted, as required by the Constitution of the United States; and said act is therefore unconstitutional and void.</p> <p>“2. Said act further provides, or assumes to provide, that the lands of this defendant, herein named, and other lands of this defendant, shall be assessed for benefits accruing to him by reason of the opening of said street, and that ‘the total amount found to be due and awarded as damages, plus the cost and expenses of the proceedings, shall be assessed by the said jury as benefits.’ And this defendant therefore says that said act is in form and intent a legislative deprivation of his property and rights without due process of law, and contrary to and unauthorized by the Constitution of the United States.</p> <p>“3. And "this defendant further says that the taking of his property for public use, as proposed in this proceeding, is in violation of the 5th Amendment of the Constitution of the United States in that it is proposed in said proceeding to take and condemn to public use the lands of this defendant without that full and just money compensation contemplated and required by the said Constitution; but, in lieu of such just compensation, the compensation to be paid to this defendant, and other defendants herein, has been assessed against himself and others similarly situated, upon other and separate and distinct lots and lands belonging to them, thereby seeking to discharge a legal obligation of the debtor by money first collected, extorted, and abstracted from the creditor without that due process of law required by the Constitution of the United States.”</p>

<p>Hearing on an appeal by a property owner from a judgment of the supreme court of the District of Columbia, sitting as a district court, overruling his exceptions in a proceeding to condemn land for street extension purposes, and confirming the award of the jury as to damages and benefits.</p> <p>The facts are stated in the opinion.</p>

Hearing on. an appeal by tbe complainant from a decree of the supreme court of the District of Columbia, sitting as an equity court, dismissing a bill in equity for discovery and an accounting. The facts are stated in the opinion.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover damages for alleged personal injuries. The Court in the opinion stated the facts as follows: This is an appeal from a verdict and judgment in the sum of $300 for personal injuries sustained by appellee, H. Diwer, plaintiff below, as the result, as he claims, of the negligence of appellant, the Capital Traction Company, defendant below.

<p>Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia, sitting as an equity court, sustaining a demurrer to and dismissing a bill for an injunction against the Secretary of War.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>The Philadelphia Company filed its bill in the supreme court of the District of Columbia against Wm. H. Taft, then Secretary of War, to obtain an injunction. The bill alleges that complainant is the owner in fee of a tract of land known as Brunot’s island, in the Ohio river, within the county of Allegheny, in the State of Pennsylvania, and within the city limits of the city of Pittsburgh in the said county. That said island was originally granted to Robert Elliot and Eli Williams by the Commonwealth of Pennsylvania, March 13, 1790, the patent containing no description of said island by courses and distances; that the title to the same subsequently passed from Elliot and Williams by various conveyances, and finally became vested in complainant, and is now, including the land submerged or covered by water hereinafter mentioned, in the possession and occupancy of complainant. That on April 16, 1858, an act of the legislature of the State of Pennsylvania was passed to establish high and low water lines in the Allegheny, Monongahela, and Ohio rivers, in the vicinity of Pittsburgh. Hnder said act commissioners were appointed to determine the boundary lines of land along the shores of said rivers and islands within the same. Said commissioners, in accordance with said law, located the lines of ordinary high and low water marks on said shore, in-eluding said Brunot’s island, which said findings were duly approved by a court, as required in said act. That, by virtue of said proceedings, the right of the owners of Brunot’s island to any accretions beyond the lines established by said commissioners was taken away, and, at the same time, said line being the permanent boundary of said island, its owners were no longer subject to any loss or diminution of land by reason of the same being submerged through the avulsion of floods or freshets or through gradual erosion; that is to say, the imperceptible washing away of the shore. That, by virtue of said proceedings and subsequent conveyances hereinbefore referred to, complainant became the owner of said island, including any submerged part thereof, according to the plat of said commissioners, which is made an exhibit to the bill. That subsequently to the establishment in 1865 by said commissioners of the line of high-water mark, a considerable amount of the soil of the shore of said Brunot’s island on the so-called back channel, within the said high-water mark, was washed away from time to time by heavy floods and freshets, so that a large part of the-upland of the island, that is, the land above high-water mark, became and was overflowed and slightly submerged by water, but said land was. not submerged to an extent sufficient to permit of navigation of any kind thereover. That some years ago the United States government, in the interest of navigation, and in order to increase the depth of water in the harbor of Pittsburgh, caused a dam to be constructed across the Ohio river a short distance below said Brunot’s island, known as the Davis island dam. The effect of this dam was to decidedly increase the depth of the water in the channel back of Brunot’s island, and-to cause the water of the river to flow higher upon the land of complainant, and to submerge same to a far greater extent, and in fact to make said water, which submerged complainant’s land, navigable at certain times and for certain purposes, which water was not' navigable before the construction of said dam. That, on or about January 29, 1895, Daniel S. Lamont, then Secretary of War of the United States, claiming to act by authority of an act of Congress approved September 19, 1890, fixed and established a harbor line along the shores of said Brunot’s island, as shown upon the map constituting an exhibit hereto. That the said Secretary, being informed of and knowing the fact, that the said shore of Brunot’s island had been washed away by floods and freshets, and the land partly submerged, as hereinbefore set forth, and claiming to have the right so to do, established said harbor line over and across complainant’s land, in so far as said line runs within the commissioners’ high-water line, and laid out said harbor line with appropriate monuments to indicate the course thereof. That, although said submerged land was generally covered by water, it was not ordinarily navigable water, and does not and has never constituted, nor does it now constitute, a part of the public navigable waters of the United States, and that no authority was conferred or intended to be conferred by said act of Congress upon the Secretary of War to regulate or interfere with the use of said land by the establishment of harbor lines for or upon the same; and to enforce the observance, as hereinafter shown, the said defendant has acted and is acting in excess of and beyond any authority conferred iipon him by said act. That even if said water which submerged the said land of complainant was in fact part of the public navigable waters of the United States, which had flowed upon the land of complainant, and submerged it without being rendered thus navigable by the construction of said dam as the proximate cause thereof, as hereinbefore set forth, the Secretary of War had no right to run said line over said land, and thereby deprive the complainant of the use and enjoyment thereof. That complainant is advised and so states, that it now has, as at all times it has had, the right to repair the damage caused by said floods and freshets, and the backing up and overflowing of said land, and to reclaim said submerged part, as it might need the same, by expelling the water therefrom and filling thereon or by piering and wharfing, keeping at all times within the limits of the part that had been torn away by the violence of the waters. That on February 23, 1907, Hon. Wm. H. Taft, Secretary of War, claiming to have authority so to do by virtue of see. 11 of the act of Congress approved March 3, 1899, which is in the exact language of the 12th section of the aforesaid act of 1890, and notwithstanding the opposition and protest of complainant, undertook to, and did, approve and sanction a change in the establishment of the harbor line of 1895 along the back channel of the Ohio river at Brunot’s island, hereinabove referred to as having been fixed by Secretary Lamont. That it appears from the report of the United States engineer in charge, who advised the change in the harbor line of 1895, that conditions of high and low water had not changed since 1895, but that as at a portion of said shore the 1895 harbor line ran several hundred feet outside high-water mark as it then existed, it seemed advisable to change* said harbor line so as to coincide with the actual high-water mark. A certified copy of said report, with the order of the Secretary of War, dated February 23, 1907, confirming and approving the same, and establishing said harbor line of 1907, is made an exhibit to the bill. That recently, in order to facilitate the delivery of coal for the operation of a power house for the manufacture of electricity, constructed on said island, complainant desired to reclaim and use a part of it which had been covered and partly submerged by water, by establishing a coal wharf at a point on the back channel of the Ohio river on Brunot’s island, where both the harbor line of 1895 and the harbor line of 1907 run some distance landward of the said state commissioners’ high-water line. That, according to the plans for said wharf, the same will extend out over complainant’s land, but crossing both of said harbor lines, to the said commissioners’ high-water line. That while complainant was engaged in perfecting said plans, the defendant, through his representative, the engineer ofiicer of the United States- Army at Pittsburgh, declared to complainant that it had no right to build upon its said land across either of the said harbor lines, and notwithstanding the fact that said harbor lines ran over, and do run over, complainant’s land above the high-water line as established by the said State commissioners, the said defendant, through his said agent and representative, refused to allow complainant to reclaim its land or to build its wharf upon its land outside of the harbor line of 1907, and threatened that, if it undertook to do so, he would prevent it, and cause complainant to be prosecuted, and its employees to be prosecuted and fined by the authorities of the Federal government for violation of the acts of Congress approved September 19, 1890, and March 3, 1899, hereinbefore referred to; said action being taken by the said defendant upon the pretended authority of the said acts of Congress; and complainant believes and charges that it will be subject to criminal prosecution in each and every attempt on its part to reclaim and use any and all parts of the island which hitherto have been torn away by the violent and unusual action of the water. That even if the Secretary of War had authority to lawfully fix and establish said harbor lines of 1895, as fixed and established by him, in virtue of said act of Congress approved September 19, 1890, yet, in doing so, he exhausted the power and authority to establish a harbor line at that place contained in said act, and said act confers no power or authority whatever upon the Secretary of War to change said harbor line of 1895, and establish the new harbor line of 1907, but the pretended establishment of the harbor line of 1907 is absolutely unauthorized and without warrant of law. Complainant further avers that because of the severe penalties prescribed by said act of Congress for the construction or erection of any buildings, wharves, or piers outside of any harbor line established by the Secretary of War, and by reason of the aforesaid threats of the defendant to cause complainant and its servants and agents to be prosecuted and subjected to said penalties and punishments in the event of complainant carrying out its said plan to reclaim said submerged land by placing upon it the structures aforesaid, and the belief of complainant that defendant will do so, complainant is prevented from making any use of its said property, and complainant is advised and so charges that said action on the part of said defendant in establishing said harbor lines, and in threatening to prosecute complainant, and preventing complainant from using its said property, constitutes a taking of said property without just compensation, in violation of the rights of complainant, or as secured by the 5th Amendment to the Constitution of the United States, and that any endeavor on the part of complainant, so long as said harbor line remains unmodified and in effect, will subject complainant to a multiplicity of criminal prosecutions, and it is advised and says that the said harbor line, under the circumstances and by reason of the facts aforesaid, has become and is a cloud upon complainant’s title. That, owing to the establishment of said harbor lines, and owing to the actions of the Secretary of War, his representatives and agents, in preventing complainant from using and enjoying his said land outside of said harbor line, said land, by the sanction of the said action of the Secretary of War, will from now on be used by the public, seeking to navigate the water which has submerged same, unless relief be afforded complainant by this court; and that thereby complainant will, in the course of time, suffer irreparable damage by the creation in the public of prescriptive rights thereto. That the land outside of said harbor line of 1907, belonging'-to complainant, and of the use and benefit of which complainant has been deprived and is being deprived by the action of the defendant, as aforesaid, is in excess of 12 acres in extent, and is of a value of more than $5,000 per acre. That complainant is without any adequate or complete "remedy at law, and the interposition of a court of equity is required for its protection in the premises.</p> <p>The prayers of the bill are: That the harbor line established in 1895, in so far as the same encroaches upon the land of complainant inside of high-water mark, as established by the State commissioners, be declared null and void, and the action of the Secretary of War be annulled and canceled; (2) that the harbor line established by defendant in the year 1907, in so far as it encroaches upon the land of defendant, as the boundaries of the same were fixed by said State commissioners, be adjudged and declared to be null and void, and the order of the defendant, ratifying and approving the same, be adjudged and decreed to be null and void; (3) that, by injunction on final decree, the defendant, all of his agents, attorneys, servants, and representatives, be perpetually enjoined and restrained from instituting, or causing to be instituted, any criminal proceedings against complainant or its agents or servants, because of its reclamation and occupation of said land or the building thereon, or from otherwise interfering with complainant’s use and occupation of said land.</p> <p>Section 11 of the act approved March 3, 1899, provides that “where it is made manifest to the Secretary of War that the establishment of harbor lines is essential to the preservation and protection of harbors, he may, and is hereby authorized to, cause such lines to be established beyond which no piers, wharyes, bulkheads, or other works shall be extended. * * *</p> <p>“Sec. 12. That every person and every corporation that shall violate any of the provisions of secs. 9, 10, and 11 of this act, or any rule or regulation made by the Secretary of War in pursuance of the provisions of the said sec. 14, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding twenty-five hundred dollars, nor less than five hundred dollars, or by imprisonment (in the case of a natural person) not exceeding one year, or by both such punishments, in the discretion of the court.” [30 Stat. at L. 1151, chap. 425, U. S. Comp. Stat. 1901, p. 3541.]</p> <p>The defendant entered a demurrer to the bill, setting up the following grounds: 1. The proceeding is virtually a suit against the United States. 2. This court has no jurisdiction to restrain the enforcement of a penalty for violation of, law. 3. This court has no jurisdiction to restrain the defendant from instituting criminal proceedings against complainant. 4. This court has no jurisdiction to declare or define harbor lines or boundary lines of land outside the District of Columbia and in the State of Pennsylvania. 5. There is no jurisdiction in this court to pass any decree removing cloud upon an alleged title of complainant in realty in the State of Pennsylvania, nor to accomplish the same by declaring the harbor lines referred to in the bill null and void.</p> <p>Before action upon this demurrer, Secretary Taft resigned the office of Secretary of War, and Luke E. Wright was appointed in his stead, and was substituted for him as a defendant in the case. Thereafter, the court sustained the demurrer of the defendant, and ordered the bill dismissed. From that decree complainant appealed. Pending appeal, the said Luke E. Wright vacated the office of Secretary of War, and J. M. Dickinson, his successor, has been substituted as a party in his stead.</p>

<p>Hearing on an appeal by the United States from a judgment of the Supreme Court of the District of Columbia, sustaining a demurrer to the declaration, in an action to recover money alleged to have been paid under a mistake, the plaintiff having elected to stand on the demurrer.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>The United States brought this action against Charles F. Mason to recover the sum of $150.</p> <p>The declaration, in four counts, averred that on September 1, 1889, the defendant, then assistant surgeon in the Army of the United States, presented a claim against the plaintiffs for the sum of $150, the same being the alleged value of a horse lost by him on April 15, 1899, while in the military service in Wyoming, and without fault or negligence on his part. That on June 26, 1897, the Auditor of the War Department settled and allowed the said claim, and certified it to the proper division of the Treasury Department for payment. That the Secretary of the Treasury issued a warrant for said sum to the defendant, on February 3, 1897, who thereupon received payment of the same on the same day. That within a year from the date of said settlement, to wit, on May 28, 1897, the Comptroller of the Treasury, of his own motion, revised,the said settlement, deciding that the loss of said horse was not due to any exigency of the military service, and did not occur therein, and that it was not without the fault or negligence of the claimant. That thereupon said Comptroller disallowed the claim and so certified to the Auditor. That on May 25, 1898, the Auditor restated said account, and certified an indebtedness by defendant to the plaintiffs to the amount aforesaid. That thereby the defendant became indebted, etc., but has refused to pay the same. Subsequent counts aver that the payment to defendant was made by mistake, for the reason that the loan did not come within the provisions of the law under which it had been settled and paid, and further, that the said horse was not worth the said sum. Also, that, as a matter of fact, the said horse had been used by defendant, its owner, and then intrusted to a private soldier to be returned to the stable, and that it was not the duty of said soldier to do the same; that the said horse became frightened, broke away from said soldier, and was killed; and that said horse was not worth more than $100. That, as matter of law, the said horse was not lost in the military service, and without fault or negligence of the defendant, but the said defendant was guilty of negligence in intrusting said horse to said soldier; and that the Auditor was mistaken when he found the value of the horse to be $150, and mistaken in law when he found the said horse was lost in the military service, and without fault or negligence on the part of the defendant.</p> <p>Defendant’s demurrer to this declaration was sustained, and the plaintiffs having declined to further amend, judgment was entered for defendant. From this the United States have appealed.</p>

<p>Appeal from a decision of the Supreme Court of the District of Columbia, sitting as a court of equity, in a suit for the construction of a will. '</p>

Hearing oel an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia, on a verdict directed by tbe court, in an action of replevin. Tbe Court in tbe opinion stated tbe facts as follows: Tbis is a suit in replevin for tbe recovery of a typewriter. Appellee company, plaintiff below, in September, 1907, sent on trial tbe machine in question to one A. E. Small, in tbe city of Boston, Massachusetts.

<p>Hearing on an appeal by a property owner from a judgment of the Supreme Court of tbe District of Columbia, sitting as a District Court, in a proceeding to condemn land for street extension purposes, upon an agreed statement of facts.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal by the plaintiff, Edward A. Eay, from a judgment for the defendant, the District of Columbia, rendered in the supreme court of the District, holding a circuit court, upon an agreed statement of facts.</p> <p>The plaintiff owned lot 14, in block 8, on Washington Heights, said lot having a width of 50 feet and a depth of 100 feet. On July 12, 1905, the District of Columbia, pursuant to an act of Congress of February 23, 1905, filed its petition in district court cause No. 668, for the condemnation of the south 16 feet and the east 8 feet of said lot for a public alley, and proceedings were had therein, resulting in an award of $1,872 to the plaintiff as compensation or damages for the land taken; and the jury assessed $920 against the remainder of plaintiff’s said lot as benefits. This verdict of the jury was confirmed by the court September 20, 1906, and on October 27, 1906, the District authorities deducted said assessment of $920 from'said award or damages of $1,872, and paid the plaintiff the difference of $950, which he accepted. On July 24, 1906, the District, pursuant to an act of Congress of June 29,1906, filed its petition in district court cause No. 686, for the condemnation, inter alia, of the remainder of plaintiff’s said lot for the purpose of the extension of Kalerama road. Notice of that proceeding was not given the plaintiff until March 18, 1907, and when he accepted the said $950 on October 27, 1906, he did not know of the pendency of cause No. 686, nor of the aforesaid act of June 29, 1906. Subsequent to October 27, 1906, proceedings were had in said cause No. 686, resulting in an award to the plaintiff of $3,597.20 as damages for the remainder of said lot. The petition in that proceeding, as amended, set forth that the District had acquired part of said lot for the purpose of opening an alley, and referred to an annexed “map or plan showing the land to be taken,” which we here reproduce:</p> <p>Defendant’s Exhibit “G.”</p> <p> </p> <p>This map or plan, was, of course, before the jury during the proceedings. In the hearing in that cause plaintiff requested the court to allow him to. offer in evidence before the jury the proceedings in cause No. 668, in so far as they concerned plaintiff’s lot, “and to instruct the jury that it should add to the compensation to be awarded plaintiff in that cause for his said remainder of said lot the said $920 deducted by the defendant as aforesaid, which request was objected to by defendant and refused by the court.” No appeal was taken from the order of the court confirming the verdict in said cause No. 686. Subsequently plaintiff filed a petition in cause No. 668, to vacate said assessment of $920 made therein. This petition was denied, and no appeal was prosecuted therefrom. Thereupon plaintiff instituted this suit.</p>

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

Hearing oh an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia, on a verdict directed by tbe court, in an action to recover a balance claimed to be due for money deposited with tbe defendant. Tbe facts are stated in tbe opinion.

Hearing on an appeal by tbe complainant from a decree of the Supreme Court of the District of Columbia, sitting as an equity court, dismissing a bill for the construction of a will. The Court in the opinion stated the facts as follows: This is an appeal by Theodore Albert Mayer, appellant, from the order of the supreme court of the District, dismissing appellant’s bill of complaint.

<p>Equity; Divorce; Adultery.</p> <p>1. The rule that when a litigant comes into a court of equity he must come with clean hands refers only to the matter to be litigated, and no other.</p> <p>2. A man who marries a woman while she is an inmate of a house of prostitution, and thereafter lives with her for a short time in the same house, but who afterwards procures and offers her a home in a respectable place of abode, which offer she refuses, is entitled to a divorce on the ground of her subsequent adultery, where there is nothing to show that he connived at it, or has been guilty of a similar offense since he offered to live with her and condone the past.</p>

<p>Hearing on. a motion to dismiss an appeal.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This was a special appeal that was granted on application, from an interlocutory order, entered on motion in a pending action at law in which the appellees were plaintiffs and the Secretary of the Interior defendant.</p> <p>The appellees have moved to dismiss the appeal on the ground that the appellants, Charles J. Happier and Charles H. Merillat, were not parties to the action in which the order was entered, and are not, therefore, entitled to appeal therefrom. They have, in addition, moved to dismiss or affirm, because there is no bill of exceptions in the record, and, therefore, nothing on which to base a review of the order.</p> <p>It appears, generally, in the record that appellants,- as attorneys for one Goldsby, had previously brought an action for him against the Secretary of the Interior, praying a writ of mandamus to compel him to vacate an order striking Goldsby’s name from the approved roll of the members of the Chickasaw Nation. A judgment was obtained, granting the writ, which was affirmed by this court November 29, 1907. Garfield v. United States, 30 App. D. C. 177. On further appeal to the Supreme Court of the United States, the judgment was again affirmed on November 30, 1908. 211 U. 6. 249, 53 L. ed. 168, 29 Sup. Ct. Hep. 62. Many other names of Indian claimants had been stricken from the rolls at the same time with Goldsby’s, and for the same cause. The decision in his case determined the question of their right to restoration.</p> <p>On December 11, 1907, appellants filed the action in this ease on behalf of sixty of those claimants against the Secretary, to compel their restoration to the rolls also. The appellees, Jim Andy Sumpter, Scott Sumpter, and Jacob D. Sumpter, were among the plaintiffs. While the Goldsby Case was depending on the last appeal, June 13, 1908, a stipulation was filed in said cause by which the parties agreed that it should abide the final result of Goldsby’s Case. Pursuant to said agreement, on January 8, 1909, judgment was entered directing the restoration to the rolls of each of the plaintiffs, save and except Jim Andy and Scott Sumpter. Prior to this time, on December 19, 1908, one William W. Wright, as attorney for said Jim Andy and Scott Sumpter, and for Jacob D. Sumpter, had filed separate petitions for mandamus to compel their restoration, which actions were still depending. The reason for not entering judgment for said Jim Andy and Scott Sumpter in the general action was to give said Wright an opportunity to file a motion in the case. On January 11, 1909, said Wright, on their behalf, filed a motion to withdraw their names from said general action. The motion alleged that appellants and their associate, James K. Jones, since deceased, had no authority to represent said Sumpters; that said Wright was their only authorized attorney; and that, if plaintiffs were not permitted to withdraw from said cause, appellants would have judgments entered for them therein and render them liable for fees in said cause. The motion was supported by an affidavit of said Wright, to which was attached a contract dated January 29, 1908, with Wilbourne and Dickinson, attorneys, authorizing action in the name of said Jim Andy and Scott Sumpter, and agreeing upon a fee of $500 therefor. This was executed by Jacob O. Good, as guardian of said parties, who were represented as minors. Another, dated January 20, 1908, was attached, between the parties and Howe and Wright. This was signed for the minors by their father, Jacob D. Sumpter, who.executed the same on his own behalf also.</p> <p>On January 11, 1909, Wright filed another motion in the name of Jacob D. Sumpter, asking to have the judgment in his favor vacated, alleging substantially the same grounds as set up in the first motion. This was also supported by an affidavit of Wright. Another affidavit was made by Jacob O. Good, as guardian of Jim Andy and Scott Sumpter, alleging that he had retained Wright to represent his said wards, and had not authorized appellants to do so.</p> <p>In answer to these motions, appellants filed the following affidavits: First, one by Chilion Eiley, an attorney of Duncan, Oklahoma, to the effect that he had been retained by Jacob D. Sumpter to represent him, and that he had retained appellants as his assistant counsel. Attached to this was a copy of a contract employing said Eiley, dated August 14, 1901. This was signed for Jacob Sumpter, by John Sumpter, who, as stated in the affidavit, was the father and agent of Jacob. Second, the affidavit of one of the appellants, in which he stated that they had been employed by Eiley under said contract, and had filed the action in accordance therewith; that the petition had been forwarded to Eiley, and had been verified by one of the Sumpters ; that, by reason of the decision in the Goldsby Case, which had been prosecuted by the appellants, nothing remained to be done, as the Secretary was now willing to restore each person to the rolls. Third, an affidavit by Charles M. Feckheimer, an attorney of Chickasha, Oklahoma, to the effect that, in June, 1901, Jacob Good, as guardian of Jim Andy and Scott Sumpter, had employed affiant to secure their restoration to the rolls, and that he had associated appellants with him for that purpose, said Good being informed of that fact. Fourth, another affidavit by one of the appellants, giving a history of the proceedings and facts tending to show that the question had been settled in the Goldsby Case before Wright took any action whatever, and also alleging authority and good faith in the proceedings taken by appellants. This affidavit concluded as follows: “Deponent is willing, under proper proceedings, that these matters may be investigated and the truth thereof determined.” We are informed, on the argument of the motion, that no investigation was had by the court, as requested, and that the matter was determined on the affidavits. No bill of exceptions was taken, however, and the record only shows the orders of the court, made on each motion which was granted. Jim Andy and Scott Sumpter were granted leave to withdraw their names from the case, in order that their right may be adjudicated in the separate actions begun for them by Wright. The judgment in favor of Jacob D. Sumpter was vacated. The court, it seems, did not undertake to pass upon the question of priority of contracts, or the right of appellants to bring the action, but simply recognized the right of the parties to control the litigation, and substitute other attorneys for the appellants. It is from these orders that the appeal was allowed.</p>

Hearing on an appeal from an order of the Supreme Court of the District of Columbia, dismissing a petition for the writ of mandamus. The Court in the opinion stated the facts as follows: This is an appeal from an order of the supreme court of the District of Columbia, refusing to issue a writ of mandamus to the excise board of the District, directing the granting of appellant’s application for a barroom license. The ease was heard on petition and answer.

Hearing on an appeal by the plaintiffs from a judgment of the Supreme Court of the District of Columbia, on a verdict directed by the court in an action of replevin. The Court in the opinion stated the facts as follows: Several plaintiffs, copartners, under the name of Oostikyan & Company, brought this action of replevin against Moses N. and Nejib Hekimian, trading as M. N. Hekimian & Company, and Charles Gr. Sloan, trading as Charles Gr.

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

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

Hearing on an appeal from a decision of the Commissioner of Patents rejecting two of four claims in an application for a patent. The Court in the opinion stated the facts as follows: Aurin M. Chase filed an application for an improvement in a tempering process, having four claims. Claims one and two read as follows: “1.

<p>Patents; Interference; Amendments; Former Adjudication; Reduction to Practice.</p> <p>1. Where, after allowance of an application, and before the expiration of the six months thereafter within which the applicants have the right to pay the final fee, they are permitted to amend their application, as allowed, by inserting a claim upon which a patent to another party has been issued, and thereupon an interference is declared between the application as amended and the patent, and no motion is made by the patentee to dissolve the interference, — on an appeal by him from a decision awarding priority to the other parties, the question whether the amendment should have been allowed and the interference declared is not properly before this court for review (following Cutler v. Leonard, 31 App. D. C. 297); and the court, on such an appeal, will consider the claim in issue as properly relating back to the date of the filing of the appellees’ original application, and that date as the date of their constructive reduction to practice.</p> <p>2. If an amended application embodies anything new that was not in the original application, or materially differs or varies from the original application, it cannot be sustained and made to relate back to the latter. The law does not permit such an enlargement of the original specifications as will interfere with the right of inventors who have entered the field or filed applications in the meantime.</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>

<p>Patents; Interference; Forfeiture; Abandonment; Presumptions; 'Reduction to Practice.</p> <p>1. While, in the ease of a renewal application, the intention of the party in allowing his former application to be forfeited may, under see. 4897, Rev. Stat. U. S. Comp. Stat. 1901, p. 3386, be inquired into for the purpose of determining the question of abandonment, such inquiry must be directed to the abandonment of the invention claimed in the original application, and not to some other invention that may be described incidentally therein, and subsequently made the subject of a new application by the same party, and brought into interference. (Distinguishing Mason v. Hepburn, 13 App. D. C. 86; Warner v. Smith, 13 App. D. C. Ill; Cain v. Park, 14 App. D. C. 42; Christensen v. Noyes, 15 App. D. C. 94; Re Mower, 15 App. D. C. 144; and Cutler v. Leonard, 31 App. D. C. 297.)</p> <p>2. It is a reasonable presumption, especially when corroborated by other evidence, that a party skilled in the manufacture of a product to the making-of which his invention relates, before he filed an application for a process, made experiments to ascertain whether the desired results could be obtained.</p> <p>3. The failure of one of the parties to an interference, relating to an apparatus for manufacturing rubber shoes, to produce the original cast-iron mold, which did not form a part of the invention, upon which he made the first experiment with the invention of the issue, is immaterial, where he produces a steel mold which the evidence shows was an exact reproduction of the iron mold; and the evidence also shows that the latter was- discarded because the steel mold produced a more finished product; and it is also immaterial whether he made tests by the use of a wooden last or an aluminum tree, where they form no part of the invention, and their use produced not a better article, from the standpoint of utility, but a smoother and better-finished product, as the applicant had a right to improve the method of using his device, as long as its practical utility was demonstrated before the adoption of the improved method.</p> <p>4. Where, in an interference proceeding, any abandonment of the invention by one of the parties must, under the evidence, be based upon his acts before the other party came into the field, such abandonment will inure to the benefit of the public, and not to such other party.</p> <p>5. An applicant for a process invention does not thereby abandon his right to thereafter claim a patent for the apparatus he discloses, especially where he states, in his application for the process, that such apparatus forms no part of the process. .</p> <p>6. Caution in sufficiently testing the utility of an invention and establishing the value of a discovery before rushing into the Patent Office is to be commended rather than condemned.</p> <p>7. Abandonment is never presumed, but, on the contrary, the presumption is against it; and the burden is on the one charging it to establish it by clear and convincing proof (following Computing Scale Co. v. Automatic Scale Co. 26 App. D. C. 238, 204 U. S. 609, 51 L. ed. 645, 27 Sup. Ct. Rep. 307); and where the law raises a presumption of abandonment, it may be rebutted by showing acts assertive of the inventor’s right and of his intention, by experiment, to improve and perfect his discovery.</p> <p>8. Where an inventor applies for and receives a patent which discloses another unpatented invention, not claimed, it is presumed not to be novel and is dedicated to the public by the patentee (following Re Millett, 18 App. D. C. 186) ; but this presumption is rebutted if the patentee has another application pending in the Patent Office, claiming it.</p> <p>9. If the original inventor has, by his action, forfeited his right to a patent, the invention will be deemed to have been dedicated to the public, and no one subsequently claiming to be the inventor can acquire a property right in the invention.</p> <p>10. Abandonment and dedication to the public use by one of the parties to an interference involving an apparatus for the manufacture of rubber shoes is not shown, where it appears that he made experimental tests of the product of his invention by having boots made with it worn by the men in the employ of the company with which he was connected, testing them in connection with boots then being manufactured, continued his experiments for two years, and filed an application for the process, followed by an application for the apparatus.</p>

Hearing on an appeal by tbe relator from a judgment of the Supreme Court of the District of Columbia, overruling his demurrer to an answer to a iule to show cause why the writ of mandamus should not be issued.

Hearing on an appeal by certain defendants in a suit for tbe foreclosure of a deed of trust, from a decree of tbe Supreme Court of the District of Columbia, sitting as an equity court, denying them the right to have part of the land covered by the deed of trust released from the operation thereof.

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

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

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

<p>Rehearing denied October 22, 1909.</p> <p>Hearing upon, appeals by three applicants for registration of a trademark, who had been placed in interference, from a decision of the Commissioner of Patents, refusing registration of the marks of all of them.</p> <p>The facts are stated in the opinion.</p>

<p>Hearing on an appeal by the defendants from an order of the Supreme Court of the District of Columbia, adjudging them guilty of contempt of court for violation of a previous restraining order of that court, and sentencing them to imprisonment; and also on a motion by the appellee to dismiss such appeal.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This cause was appealed from a decree of the supreme court of the District of Columbia adjudging appellants, Samuel Gompers, Frank Morrison, and John Mitchell, guilty of contempt of court. For convenience, appellants will be referred to hereafter as defendants, and appellee, The Buck’s Stove & Range Company, as complainant.</p> <p>On the 19th day of August, 1907, a bill of complaint was' filed by the complainant corporation in the supreme court of the District of Columbia, praying for an order of injunction restraining certain parties, among whom were these defendants, from conducting a boycott against the business of complainant. On the 18th day of December, 1907, the temporary restraining order set forth in the petition herein, was entered.</p> <p>The bond required by the court to be filed to indemnify the defendants against any damage they might sustain by reason of the order was filed by complainant on the 23d day of December, 1907. The temporary restraining order, therefore, did not become effective until that date. Thereafter, evidence was taken by the respective parties, and, on hearing, the court, on March 23, 1908, entered a decree making the temporary injunction perpetual as to the original defendants.</p> <p>From the final decree making the temporary injunction perpetual, an appeal was taken to this court. No supersedeas bond was given nor any action taken by the defendants to stay the judgment. On hearing, this court (-33 App. D. C. 83) modified the decree to read as follows:</p> <p>“This cause came on to be heard on the transcript of the record from the supreme court of the District of Columbia, and was argued by counsel.</p> <p>“On consideration whereof, it is now here ordered, adjudged, and decreed by this court that the decree of the said supreme court in this cause be, and the same is hereby, modified and affirmed as follows: It is adjudged, ordered, and decreed that the defendants, Samuel Gompers, Frank Morrison, John B. Lennon, James Duncan, John Mitchell, James O’Connell, Max Morris, Denis A. Hayes, Daniel J. Keefe, William D. Huber, Joseph F. Valentine, Rodney L. Thixton, Clinton O. Buckingham, Herman C. Poppe, Arthur J. Williams, .Samuel R. Cooper, and Edward L. Hickman, individually and as representatives of the American Federation of Labor, their and each of their agents, servants, and confederates, be, and they hereby are, perpetually restrained and enjoined from conspiring or combining to boycott the business or product of complainant, and from threatening or declaring any boycott against said business or product, and from abetting, aiding, or assisting in any such boycott, and from directly or indirectly threatening, coercing, or intimidating any person or persons whomsoever, from buying, selling or otherwise dealing in complainant’s product, and from printing the complainant, its business or product, in the ‘We Don’t Patronize’ or ‘Unfair’ list of defendants in furtherance of any boycott against complainant’s business or product, and from referring, either in print or otherwise, to complainant, its business or product, as in said ‘We Don’t Patronize’ or ‘Unfair’ list in furtherance of any such boycott.”</p> <p>This 'cause arose out of the alleged disobedience by these defendants of the decree of the court below. On July 20, 1908, complainant filed a petition in the original cause in equity, charging the defendants Samuel Gompers, Frank Morrison, and John Mitchell with wilful and premeditated violations of hoth the temporary and perpetual injunctions, and with a total disregard of the same, and, in so doing, they are charged with acting in gross and -wilful contempt, of tbe authority of the court. The petition in full appears in the margin.*</p> <p>On the same day the petition in the present case was filed, a citation was issued requiring the defendants, on or before the 8th day of September, 1908, to appear and show cause why they should not be adjudged in contempt of the order and decree of the court. Within the time allowed, the defendants appeared and answered separately, substantially admitting tbe facts alleged in the petition in so far as they directly applied to them individually or collectively; but each specifically denying any intention to disregard or treat with contempt the decrees of the court. As we shall later observe, the answers, in the state of this record, become of little importance in the disposition of this appeal.</p> <p>A voluminous amount of evidence was taken by the respective parties. On hearing, the court entered the following decree :</p> <p>“Now come the parties, by their attorneys, and the respondents, Samuel Gompers, Frank Morrison, and John Mitchell, in their proper persons, and this cause having been submitted to the court on, to wit, the 17th day of November, a. d. 1908, upon the petition of the complainant for a rule upon the respondents Samuel Gompers, Frank Morrison, and John Mitchell, to show canse wby tbey should not be adjudged in contempt, the answers of tbe said respondents, and the testimony taken thereunder, and after full argument by the solicitors of the parties, respectively, and the same having been duly considered by the court, it now finds the fact to be that, on or about the 24th day of January, 1908, while the injunction pendente lite, of December 18, 1907, was, and was by them known to be, in force, tbe said respondents published and caused to be widely disseminated a paper signed by them, and which they caused to be accompanied by another paper, therein referred to as an editorial from the February, 1908, Federationist, which papers, in violation of the express mandates of the said injunction, made reference to the fact that a boycott had been declared against the complainant, its business and its product, and that organized labor had asked its friends to use their influence and purchasing power in aid thereof, alleged that the said injunction was an invasion of the liberty of the press and of free speech, and declared that it could not ‘compel union men or their friends to buy the Buck’s stoves and ranges,’ and that ‘for this reason, the injunction will fail to bolster up the business of this firm, which it claims is so swiftly declining;’ that, on or about the 25th day of January, 1908, tbe respondent John Mitcbell, in like violation of tbe said boycott, combined with sundry persons, acting in aid of and in conjunction with bimself and others of tbe defendants, in calling attention to tbe said boycott, and in giving notice that anyone of tbe 300,000 members of tbe United Mine Workers of America wbo should purchase a stove of tbe complainant’s manufacture should be fined therefor and expelled from tbe said organization if tbe fine were not paid; that in April, 1908, when tbe permanent injunction of March 23d, 1908, was, and was by them known to be, in full force, the respondents Samuel Gompers and Frank Morrison, in violation thereof, published in the. said American Federationist, and widely disseminated, a letter, signed by them and addressed to the numerous state branches and central bodies of the defendant the American Federation of Labor, requesting them to Fear in mind that an injunction issued by a court in no way compels labor or labor’s friends to buy tbe product of the Van Cleave Buck’s Stove & Range Company of St. Louis. Fellow workers, be true and helpful to yourselves and to each other. Remember that united effort in the cause of right and justice must triumph;’ and the court further finds as a fact that the respondents Samuel Gompers, Frank Morrison, and John Mitcbell are guilty of the several acts charged in paragraphs 17 and 26 of the complainant’s petition, that the said respondents Gompers and Morrison are guilty of the several acts charged in the 16th. and 20th paragraphs of the said petition, that the respondent Morrison is guilty of the acts charged in the 25th paragraph of the said petition, and that the respondent Gompers is guilty of the several acts charged in the 19th, 21st, 22d, and 23d paragraphs thereof.</p> <p>“And, the court being fully advised in the premises, it is by it, this 23d day of December, a. d. 1908, considered that the said respondents Samuel Gompers, Frank Morrison, and John Mitchell are guilty of contempt in their said disobedience of tbe plain mandates of tbe said injunctions; and it is, therefore, ordered and adjudged that the said respondent Frank Morrison be confined and imprisoned in the United States jail in the District of Columbia, for and during a period of six months; that the said respondent John Mitchell be confined and imprisoned in the said jail for and during a period of nine months; and that the respondent Samuel Gompers be confined and imprisoned in tbe said jail for and during a period of twelve months; said imprisonment as to each of said respondents to take effect from and including the date of the arrival of said respective respondents at said jail.”</p> <p>From this judgment the case comes here on appeal.</p> <p> On the motion to dismiss. </p> <p>It is not to be denied that where an order punishing a contempt of a court’s decree, judgment, or order is inflicted on a person not a party to the suit in which the alleged violated decree or judgment was entered, or where the contempt proceedings have for their primary object punishment for violations of valid decrees or judgments, there are decisions of Federal courts which require that a review of the order inflicting the punishment must be through the instrumentality of a bill of exceptions, an agreed case, or the like, as in the case of a review of a judgment entered in an action at law. But the authority of these decisions has no application to a case like that presented in the proceeding at bar. This appears, from the language of the court in Bessette v. Oonhey Go. 194 U. S. 324, quoting with approval the language of Judge Sanborn, of the court of appeals for the eighth circuit, in Be Nevitt, 117 Ned. 448.</p> <p>The distinction drawn between the different hinds of contempt proceedings in these cases is determinative of the motion to dismiss. The order punishing, for contempt in this case was essentially remedial in its character. It was made to enforce obedience to tbe injunction, wbicb was the prime object- of the bill of complaint filed by the petitioner, and the proceedings leading to the order inflicting the punishment were initiated by the petitioner and original complainant, it complaining, in substance, that the relief it had sought and which had been granted to it was being rendered of no avail to it by reason of tbe alleged wilful violations of tbe injunction order and decree by tbe appellants. It appealed to tbe equity court, wbicb bad passed tbe injunction order and decree, to give effect to tbem by compelling, tbrougb tbe coercive process of contempt proceedings, obedience to tbe order and decree. If tbis be tbe true character of the contempt proceedings, they were merely a part of the relief sought in an equity cause, and the order and judgment inflicting the punishment for contempt being final, it will be reviewed in this court, as any other final decree in equity, by an appeal taken in the ordinary way, and this means bringing up the whole record upon which the decree or order appealed from is based, which, in this case, is the petition for the rule to show cause why an attachment for contempt should not issue, and for general relief, the answers thereto, the evidence taken by the petitioner in support of the allegations of its petition, the opinion of the court, and its order and decree thereon. It requires no bill of exceptions, agreed case, or the equivalent.</p> <p>The petitioner, in its motion to dismiss, realizes that it must make it appear that the contempt proceeding is a common-law proceeding, and that therefore the order or decree of the court below adjudging the appellants in contempt is reviewable by writ of error only, and not by appeal, this being the first stated cause of its motion to dismiss, although later in the petitioner’s' brief it is said that “it is, of course, not contended that an actual writ of error is necessary to bring a law cause from the lower court to this court for review.” We bave endeavored to show that this is a mistaken application of the rule in certain classes of contempt proceedings, which are treated as proceedings at common law, and, if we have succeeded in doing this, it seems to us that it settles the question raised by the motion, and the same must be overruled.</p> <p>It may be contended by tbe appellee that, in order to give to a contempt proceeding the remedial character which we insist characterizes the present contempt proceedings, it must appear that the court below imposed a fine, payable in whole or in part to the complainant and petitioner, as in the nature of damages for injuries suffered by it by reason of the alleged violations of the injunction order and decree. While some of the cases cited by the petitioner are cases in which fine, and not imprisonment, was the punishment inflicted, that fact by no means justifies the contention that may be urged by the petitioner in this connection. The supreme court of the District cannot, in punishing for contempt, impose both a fine and imprisonment (Moss v. United States, 23 App. D. C. 475). It may do either, and in this case it may well he assumed that the court below determined that the most effective way for administering relief to the complainant and petitioner was by imprisoning the appellants rather than by finding them. However this may be, it is not the form of punishment inflicted for contempt that determines whether it is exercised for remedial purposes and in the interest of the party complaining of the violations of the orders or decrees of the court, or for purely punitive purposes. It is to be determined by looting at the nature and purpose of the suit in which a decree, judgment, or order alleged to Have been violated is entered, and tbe purpose and object of tbe proceedings wbicb called into exercise tbe contempt process of tbe court, and, tested in tbis manner, we repeat tbat it is plain that, in tbis case, tbe exercise of tbe contempt process was exclusively remedial and in tbe interest alone of tbe petitioner, tbe appellee.</p> <p>It should not be lost sight of tbat most of tbe decisions relied on by tbe petitioner in support of its motion are decisions based upon the statutes and practice which regulates the jurisdiction of the various Federal courts in reviewing cases coming up from the United States district and circuit courts to the appellate tribunals. The jurisdiction of this court, as a reviewing tribunal, does not depend upon nor is it derived from those statutes and that practice, but from the act of Congress creating this court and its rules promulgated under tbe authority of the creating statute. Looking at that statute and the acts of Congress amendatory thereof, and the rules of this court, it will be seen that a writ of error is the mode of securing a review by this court only of the judgments of the police and juvenile courts; that, in all other eases, a review is accomplished by an appeal, and the mode of prosecuting the appeal depends in turn upon what court below the case comes from, whether an equity court or a common-law court. If the latter, then there must be a bill of exceptions or such equivalent of that as is recognized by well-established practice; but not so in the case of appeals from the equity court which bring up for review the whole record, and this tribunal in such cases reviews both the facts and the law. There is no rule of this court that prescribes the method of prosecuting an appeal from the equity court from an order or decree adjudging a person in contempt, and the precedents that are available have been observed in tbe present appeal. We find two such precedents among tbe reported decisions of tbis court. They are Drew v. Hogan, 26 App. D. C. 55; Lane v. Lane, 27 App. D. C. 171.</p> <p>Among tbe cases reviewed in tbe Bessette Case was that of New Orleans v. New York Mail S. S. Co. 20 Wall. 387. Tbe mayor of New Orleans bad been adjudged in contempt for something be bad done before becoming a party to tbe action, and in tbis, as in many of tbe cases cited by tbe appellees on tbe motion to dismiss, tbe judgment in contempt against him was treated as a specific criminal offense. In fact, in tbe principal case, Bessette, whose action was treated as a contempt and who was compelled to resort to a writ of error, was not a party to tbe original action, and otherwise not within tbe original remedial jurisdiction of tbe court, and, being outside it, bis action was regarded as criminal.</p> <p>To tbe contrary, in tbe case of Hayes v. Fischer, 102 U. S. 95, cited by Mr. Justice Brewer, an interlocutory injunction having been granted and tbe defendant fined for contempt for violation thereof, tbe fine to be paid to tbe plaintiff in reimbursement, Mr. Justice Waite said: “Tbis order, if part of tbe proceedings in tbe suit, was interlocutory only. If tbe proceeding below, being for contempt, was independent of and separate from tbe original suit, it cannot be re-examined here, either by writ of error or appeal.” (Tbe law relative to appeals has since been changed.)</p> <p>In Warden v. Searls, 121 U. S. 14, defendants, having been adjudged guilty of contempt for violating tbe order óf tbe court, and being parties to tbe action, and further charged with tbe costs of tbe contempt proceeding, and tbe court finding that tbe decree in favor of plaintiff was erroneous, dismissed tbe appeal and set aside tbe order imposing tbe fines, treating such order as interlocutory and pertaining to tbe main cause.</p> <p>O’Neal v. United States, 190 U. S. 36, was that of an assault upon a trustee in bankruptcy, and tbe judgment was found to be a judgment in a criminal case, over which tbe Supreme Court liad no jurisdiction. This is so clearly distinguishable from the present case it will not require discussion.</p> <p>Referring to the matter of the petitioner of the Christensen Engineering Company for writ of mandamus, 194 U. S. 458, wherein the Supreme Court, through Mr. Justice Fuller, pointed out clearly that, in the Bessette and New Orleans v. New York Mail S. S. Co. Cases the acts were committed by one not then a party to the suit, and were purely of a criminal nature, whereas the opposite was the case in Hayes v. Fischer and Warden v. 8 earls.</p> <p>In Continental Gin Co. v. Murray Co. 162 Fed. 873, the plaintiffs in error, who were not parties to the injunction, but had knowledge of it, were adjudged in contempt, ordered to pay a fine to the United States, a sum to the complainants as counsel fee, and the costs of the proceeding; and in that case Mr. Justice Moody objected to its hearing because, although a writ of error was sued out, “there was no finding of facts, nothing in the nature of a special verdict, no request for a ruling upon the facts, nor upon any question of law, and no bill of exceptions.” For the reasons that we have pointed out, this case is no precedent for the case at bar.</p> <p>In the case at bar we have to bear in mind that the parties charged with contempt are among those against whom the original remedial relief was sought, and the contempt proceedings are therefore in the line of the original action.</p> <p>When one bears in mind that, in point of fact, the errors are upon the face of the record, we alleging substantially no errors that do not clearly appear upon the face of the pleadings and the decree of the court, the decree adjudging the appellants in contempt for having committed the acts alleged in the petition (paragraph 26 of the petition, said by the court to constitute the basis of its judgment, reincorporating all allegations of the petition), and these being the clear basis of its action, we submit that, even were this a law case, this court has before it everything that could be given by the most ample bill of exceptions. Clear and decisive propositions of law are placed before us by the action of the court below itself.</p> <p> On the Merits. </p> <p>1. The court erred in condemning the respondents to terms of imprisonment of twelve, nine, and six months, each and every of such terms of imprisonment being so excessive as to constitute want of due exercise of judicial discretion.</p> <p>In all the history of contempt proceedings, so far as disclosed by the reports and within the knowledge of appellants’ counsel, no case exists where, for offenses in the slightest comparable with those alleged to have been committed by the appellants, such an extraordinary punishment has been meted out. In our view, the whole purpose and intent upon which the court acts in injunction and contempt proceedings has been lost sight of, and the equity court has undertaken to act as might have been permitted to a judge and jury when an examination had been made under all the protection given a defendant by the rules pertaining to criminal law. See the language used by Mr. Justice Taft in Thomas v. Cincinnati, 62 Fed. 823.</p> <p>The heaviest sentences ever imposed within our knowledge for contempt were inflicted by Judge Taft upon Phelan in the case last referred to, and by Judge Woods in the Debts Case (64 Fed. 724), six months being the term of imprisonment inflicted.</p> <p>Next in length of time is that of four months to Orr, in United States v. Kane, 23 Fed. 748, in which a large number of strikers had assumed to stop the operations of a railroad in the hands of receivers; tried to prevent the engineers from running out the trains, and to prevent the train men from working, the particular respondent having indulged in threats of a grave character. Others concerned in the same affair were given, by Judge Brewer, thirty and ten days in jail.</p> <p>The only other case of which we have knowledge in which as severe punishment has been given by Federal courts is that of Secor v. T., P. & W. R. R. Co. Fed. Cas. No. 12,605, wherein Drummond, circuit judge, sentenced to jail for four months the leader of a mob which had taken possession of and prevented the running of trains, belonging to a railroad at the time in the hands of a receiver.</p> <p>Other Federal cases have usually provided for imprisonment from ten to thirty days.</p> <p>Of great weight in determining the character of the punishment inflicted in this case, as to whether within the bounds of just legal discretion or not, are the legislative expressions of opinion as contained in the statutes of many of the states of the Union, in no one of which are the courts allowed to imprison for contempt for a term exceeding six months, and in some in which they are not allowed to go heyond five or ten days.</p> <p>Thus, in Florida fines for contempt may not exceed ten days or imprisonment thirty days (Ex parte Edwards, 11 Fla. 174).</p> <p>In Louisiana, fines are limited to $50 and imprisonment to ten days (State v. Keene, 11 La. 596.)</p> <p>In New York, fines may not exceed $250 and imprisonment not in excess of six months (King v. Barnes, 113 N. Y. 476).</p> <p>In North Carolina, the punishment is a fine not exceeding $250, or imprisonment not exceeding thirty days (Re Patterson, 99 N. C. 418.)</p> <p>In Ohio, punishment may not be more than a fine not exceeding $500 and imprisonment not exceeding ten days (Myers v. State, 46 Ohio St. 473).</p> <p>In Tennessee, fines are limited to $50 and imprisonment must not exceed ten days (State v. Rust, 2 Tenn. Ch. 181).</p> <p>In Michigan, fines may not exceed $250, nor imprisonment thirty days (Sloman v. Reilly, 95 Mich. 264).</p> <p>In Georgia, by sec. 242, subparagraph 5, punishment is limited to twenty days’ imprisonment.</p> <p>In California, by the practice act, secs. 488, 489, punishment may not exceed $500 and imprisonment not exceeding five days (Galland v. Galland, 44 Cal. 475).</p> <p>In Texas, in 1889, before justice of the peace, punishment may not exceed $25, or the imprisonment one day (Ex parte Robertson, 27 Texas App. 628).</p> <p>In Wisconsin, by the Revised Statutes of 1858, chapter 149, sec. 25, not more than six months’ imprisonment is permitted (Be Pierce, 44 Wis. 411).</p> <p>In North Carolina, Re Patterson, 99 N. C. 418, the court, finding punishment excessive, reversed the case.</p> <p>In De Beukalaer v. People, 25 Ill. App. 460, the court, holding that a fine of $500 and imprisonment for thirty days for removing birthmark on a child was an unusual and immoderate punishment, the conviction was reversed and the cause remanded.</p> <p>2. The court erred in finding that the defendants Gompers and Morrison were, in any degree, responsible for contempt because of the fact, as found, that they had rushed the publication and circulation of the Federationist of January, 1908, before the approval of the injunction bond.</p> <p>No punishment can be had for the contempt of an ineffective order, neither, can an order be made to operate retroactively. The first of these suggestions, as well as the second, is borne out by the language of Drew v. Hogan, 26 App. D. C. 61, the case of Lamon v. McKee, 18 D. C. 447, also showing that there could be no contempt where the decree was without authority for want of jurisdiction, and, as was held in the first-cited of these cases, no preliminary injunction order could be made without the prior filing of a bond, such requirement being jurisdictional.</p> <p>3. The court erred in finding that the letter of November 26, 1907, had any connection with the alleged subsequent violations of the injunction.</p> <p>There is no scintilla of evidence in the entire record connecting this publication with any boycott, legal or illegal, of the Buck’s Stove & Bange Company’s products occurring after the injunction became effective. It is left only to the imagination to find a connection, as to which no proof exists, and a conviction of an offense quasi-criminal in its nature may assuredly not be sustained in any such manner.</p> <p>4. The court erred in finding that the various speeches, communications, books, etc.-, made and published by the several defendants before the injunction became effective, had any connection with the alleged violations of the injunction.</p> <p>5. The court erred in finding that any sentiment expressed by any of the defendants prior to the date of the injunction, and in opposition to an injunction which, as it appears from the decision of the court of appeals, the court below had no right to pass, could afford a foundation for assuming prior intent to disobey any lawful process of the court.</p> <p>6. The court erred in finding that the defendants were guilty of contempt in the circulation of bound copies of the Federationist for 1907, of occasional copies of the Federationist of January, 1908, and. of the proceedings of the Convention of November, 1907, none of the same having been circulated for the purpose of furthering any alleged boycott.</p> <p>7. The court erred in finding that' the defendants violated the injunction hy the issuance of the “Urgent Appeal” of January 21, 1908, and of the editorial in connection therewith, the same having been proper and necessary steps in their own defense, and not in furtherance of any boycott.</p> <p>There is nothing in either the editorial or in the appeal itself calling for a boycott of any kind, except it be that a refusal of intercourse on the part of respondents and their friends with the complainant in this case constitutes such boycott as a court shall take within its cognizance, and no appeal for or suggestion of any other kind of boycott or procedure is at any time made.</p> <p>8. The court erred in finding that, in the various editorials, editorial notes, and comments published by the defendant Samuel Gompers, and circulated by the defendant Frank Morrison, there was any intent other than free discussion and interpretation of the action of the court below, and in finding that they were violations of the injunction.</p> <p>9. The court erred in finding any intent on the part of the defendant John Mitchell to violate the injunction in presiding over a meeting of the United Mine Workers of America, or in anything alleged against him in paragraph 18 of the petition.</p> <p>10. The court erred in finding the defendant Gompers guilty of contempt in having referred to the Buck’s Stove & [Range Company and the boycott upon its products in speeches made after the date of the filing of the petition in contempt.</p> <p>11. The court erred in adjudging contempt as to the void part of decrees, such, void part prohibiting freedom of speech and of the press whether for an illegal purpose or not.</p> <p>12. The court erred in finding that, after the date of the decree or injunction signed by Judge Gould, any of the defendants had taken any step whatever in the prosecution of the illegal boycott.</p> <p>13. The court erred in enforcing an injunction void in that it forbade freedom of speech and of the press by forbidding the fair discussion of the terms and meaning of the injunction itself.</p> <p>The court of appeals has already decided that the decrees of Justices Gould and Clabaugh were erroneous, and that, in addition to material elisions, such parts as remain should be qualified by the use of the words “in furtherance of any boycott.”</p> <p>The old decrees enjoined the respondents “from printing, issuing, publishing, or distributing through the mails or in any other manner any copies or copy of the American Federationist or any other printed or written newspaper, magazine, circular, letter, or other document or instrument whatsoever which shall contain or in any manner refer to the name of the complainant, to its business or its product, in the 'We Don’t Patronize’ or the 'Unfair’ list of the defendants, or any of them, their agents, servants, attorneys, confederates, or other person or persons acting in aid of or in conjunction with them, or which contains any reference to the complainant, its business or product, in connection with the term 'Unfair’ or with the 'We Don’t Patronize’ list, or with any other phrase, word, or words of similar import, and from publishing or otherwise circulating, whether in writing or orally, any statement or notice of any kind or character whatsoever, calling attention to the complainant’s customers or of dealers or tradesmen or the public to any boycott against the complainant, its business or its product, or that the same are or were or have been declared to be 'Unfair,’ or that it should not be purchased or dealt in or handled by any dealer, tradesman, or other person whomsoever by the public or any representation or statement of like effect or import for the purpose of or tending to any injury to or interference with the complainant’s business, or with the free and unrestricted sale of its product, or the coercion or inducing any dealer, person, firm, or corporation, or the public not to purchase, use, buy, trade in, deal in, or have in possession, stoves, ranges, heating apparatus, or products of the complainant,” etc.</p> <p>"We are justified by the opinions filed in the main case in submitting that in this order, so far as quoted, without the limitation prescribed by the court of appeals, there were mingled valid and invalid elements, for the most part, in fact, invalid, but, in so far as they tended to be valid, so bound up with the invalid as to render them incapable of disentanglement, and that, therefore, so much of the order as is quoted, as well as other parts of it, was void; that no punishment for contempt could be predicated upon it, and that the respondents, being condemned solely for violation of this part of the order, must be discharged.</p> <p>It clearly appears from the opinion of Mr. Justice Robb that the order of the court below, in so far as it went beyond an injunction against an illegal boycott and against steps in furtherance of such boycott, was too broad.</p> <p>That the grounds of its illegality were to be found in its violation of constitutional rights belonging to the respondents is more largely demonstrated by the opinion of Mr. Justice Van Or s del.</p> <p>We are brought, then, to the position that the decrees below in respect of publications or utterances — it is only with regard to them that the respondents have been held guilty — -were in excess of the jurisdiction of the court, in that they violated constitutional rights, — those of freedom of speech and of the press.</p> <p>A decree may be attacked collaterally as void when the court acts without jurisdiction over the person or of the subject-matter, or is without jurisdiction to make the particular order. The inquiry of Mr. Justice Shepard in the case of Tolmcm v. Leonard, 6 App. D. C. 232 — “Had that court any jurisdiction in the premises at all ? If so, did it clearly exceed that jurisdiction in the way complained of ?” — must arise whenever the validity of any decree is called into question collaterally or directly. In the case referred to, the question arose collaterally on an application for habeas corpus. In tbe present case, it arises collaterally, tbe respondents challenging tbe validity of the decrees below when an attempt is made to give them efficacy.</p> <p>Tbe Supreme Court of tbe United States has many times said that tbe court below must have authority not only over tbe persons and tbe subject-matter, but to pass tbe particular decree rendered by it. This was tbe case, for instance, in Ex parte Robinson, 19 Wall. 505, where tbe sentence for contempt disbarring an attorney from practice was held void and be was restored to tbe rolls by a mandamus.</p> <p>So, in Ex parte Rowland, 14 Otto, 604, it was said that “if tbe command of tbe writ against tbe commissioners was what tbe circuit court has construed it to be, it was in excess of tbe jurisdiction of tbe court, and consequently void. If tbe command of tbe writ was in excess of jurisdiction, so necessarily were tbe proceedings in contempt in not obeying. We are led, therefore, to tbe conclusion that tbe order of tbe court under which tbe marshal bolds tbe petitioners in custody was a nullity, and that a writ of habeas corpus should issue as prayed for unless tbe parties are willing that an order of discharge shall be entered without further proceedings.” •</p> <p>In Re Mills, 135 U. S. 263, tbe court said: “Tbe court below was without jurisdiction to pass any such sentences, and the orders directing tbe sentences of imprisonment to be executed in a penitentiary are void.”</p> <p>This is not a case of mere error, but one in which tbe court has transcended its powers.</p> <p>In Re Fish, 113 U. S. 113, tbe court bad jurisdiction of the person and subject-matter, but made an order in excess of authority in directing an examination prior to trial, as provided by tbe New York State statutes, but against tbe United States Uevised Statutes. Tbe petitioner was, on habeas corpus, ordered to be discharged.</p> <p>In Be Ayres, 123 IJ. S. 443, the case of Ex parte Bowland was recited approvingly to the effect that, “if the command was, in whole or in part, beyond the power of the court, the writ, or so much as was in excess of jurisdiction, was void, and the court had no right in law to punish for any contempt of its unauthorized requirements.”</p> <p>Such has been the rule adopted by the Supreme Court in many other cases, as, for instance, the cases of Ex parte Lange, 18 Wall. 163; Ex parte Parks, 93 IT. S. 18; Ex parte Siebotd, 100 U. S. 371; Ex parte Virginia, 100 U. S. 339; Be Sawyer, 124 U. S. 200; Elliott v. Pearsol, 1 Pet. 328.</p> <p>Among the State or Pederal cases enunciating the same doctrine are People v. O’Neil, 47 Cal. 109; Lester v. People, 150 111. 408 (holding an order void and refusing contempt predicated upon it because in violation of a constitutional provision) ; Walton v. Develing, 61 111. 201; Dodd v. Una, 40 N. J. Eq. 672; Ex parte Gardner, 22 Nev. 280; Ex parte O’Brien, 127 Mo. 477 (in which the court said that “a court may have authority to hear and determine a case, but its determination or judgment must be within the confines of the law, and such power does not authorize it, simply because it has jurisdiction to render some judgment in the cause, to trample down the prisoner’s fundamental and constitutional rights by pronouncing a sentence unauthorized by law”) ; Stale ex rel. v. Theard, 48 La. Ann. 1448; State v. District Court, 21 Mont. 155, 69 Am. St. Eep. 645 (holding specifically that “a party cannot be guilty of contempt of court for disobeying an order which the court had no authority of law to make”) ; Lewis v. Peck, 154 Eed. 273; State ex rel. v. Wea/r, 33 L.E.A. 341; Forrest v. Price, 52 N. J. Eq. 16; American Lighting Go. v. Public Service Gorp. 134 Eed. 129; Koehler v. Dobberpuhl, 56 Wis. 497.</p> <p>The court of appeals, having demonstrated that the order of the court below in certain aspects was erroneous, and, furthermore, void, in that it violated the constitutional rights of the respondents, and the foregoing authorities having demonstrated that there can be no contempt involved in the disobedience of a void order, it remains only to see if the void part of the decree, as affects matters under discussion, can be so disentangled from the valid part of the decree affecting the same subject that the respondents can be held in contempt for a violation of its terms; for we fully recognize the rule that where a statute or an order is in some respects void, as, for instance, unconstitutional, yet, nevertheless, a person may be held responsible for its violation, provided the invalid portion may be disentangled and excluded from the valid, and the person charged has,-such disentanglement and exclusion having taken place, been guilty of its violation. In the present case any publication whatsoever involving the use of the name of the complainant or its products in connection with the “We Don’t Patronize” list was, without qualification,' declared unlawful. Had the qualification been contained in the decree it might have been that, as to publications “in furtherance of a boycott,” the respondents could have been held in contempt; but where, before the constitutional protection can be removed, there must be used certain nonexisting qualifying words, can the respondents be charged with contempt? We respectfully and earnestly insist that they cannot.</p> <p>The respondents are enjoined from printing, etc., any copies of the Federationist or any other printed or written newspaper containing or referring to the name of the complainant, its business or product, and from declaring that the same have been deemed unfair, or from making any other representation or statement of like effect or import for the purpose of or tending to injure or interfering with the complainant’s business, or with the free or unrestricted sale of its product, or inducing any dealer, person, firm, or corporation not to purchase, etc., ranges, etc., the product of the complainant. They have referred to the complainant’s name as having been on the unfair list, although they have not published such list since the injunction order became effective, and it may have been that the effect of such publication was to “induce persons from dealing with the complainant ;” but, as the court of appeals has said through its several judges, they had a constitutional right to induce any of their friends or sympathizers not to so deal with the complainant, such step not being taken in pursuance of a boycott. They have announced that they would not themselves buy such stoves, and that no court could compel them to make such purchase; and for the use of this language Mr. Justice Wright has sentenced them to jail for excessive periods, although the court of appeals, speaking by Mr. Justice Robb, has said: “We have no power to compel the defendants to purchase complainant’s stoves.” When they have made this announcement they have not accompanied it by “threats of boycott or other manner of intimidation against complainant’s patrons or those handling or wishing to purchase its product” (Justice Robb’s opinion).</p> <p>The court below has construed a temperate appeal for financial assistance to prosecute an appeal as a contempt of the order of the court below. Could a constitutional right have possibly been treated with less respect ? But was not Mr. Justice Wright, in finding contempt in the making of such appeal, justified by the text of the orders of his associate? Are not, therefore, orders so disregardful of constitutional rights of necessity absolutely void whenever invoked ?</p> <p>14. The court erred in finding that the respondents Gompers and Morrison were guilty of the several acts charged in the 16th and 20th paragraphs of the petition; that the defendants Samuel Gompers, Frank Morrison, and John Mitchell were guilty of the several acts charged in paragraphs 1Y and 26= of the petition; that the respondent Morrison was guilty of acts charged in the 25th paragraph of the petition; and that the respondent Gompers was guilty of the several acts charged in the 19th, 21st, 22d, and 23d paragraphs thereof.</p> <p>15. The court erred in finding that the respondents, Samuel Gompers, Frank Morrison, and John Mitchell, .were guilty of contempt.</p> <p>16. The court erred in adjudging that the several respondents should be imprisoned in jail for the terms specified in its decree.</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 an order of the Supreme Court of the District of Columbia, dismissing a petition for the writ of habeas corpus. The Court in the opinion stated the facts as follows: This is an appeal from an order of one of the justices of the supreme court of the District of Columbia, dismissing a petition for a writ of habeas corpus.

Hearing or an appeal by- tbe respondent, tbe Commissioner of Patents, from an order of tbe Supreme Court of tbe District of Columbia, directing tbe issuance of tbe writ of mandamus to bim, commanding bim to vacate a decision rendered by bim in an interference proceeding.