Volume 34 — Appeals, District of Columbia

<p>Hearing on an appeal by one of two defendants indicted and tried for tbe crime of larceny in the Supreme Court of the District of Columbia from judgment of conviction entered upon a verdict of guilty.</p> <p>The Court in the opinion stated the fácis as follows:</p> <p>This is an appeal by John Jackson from a conviction in. the supreine court of the District under, an indictment chargingdum and >one Warren-Rolls with-larceny 'from the; United. States. The trial resulted in the conviction of each defendant, but Rolls prosecuted no appeal. -</p> <p>Edward .Hayden, the captain of an oyster boat, .testified on behalf of the'-government that, bn the' 13th of November, 1908, while his boat was docked at the Eleventh street wharf in the District of Columbia, the-defendant.Rolls, whom he had known for some time, solicited him to buy some paint; that later Rolls and the defendant ‘Jackson came aboard bringing one keg of white lead paint, one keg of red lead paint, and' some cans of paint, the' same being wrapped, in. burlap sacks, and the witness paid $5 for the lot; that subsequently Officer Osterman took possession of said. property. The witness identified the sacks exhibited as the ones in which the paint was wrapped when he purchased it. * Whereupon these sacks were offered' in evidence/ One- of .the sacks bore no.lettering; the other bore in black letters the following; “U. S, Army, Depot of N. Y.” The testimony of this witness was corroborated by the testimony of two other-witnesses.</p> <p>Lieutenant- Philip Matthews, of the Quartermaster’s-Department, U. S. Army, stationed at Fort Washington, testified that, on the 11th day of February, 1908, he received. an invoice numbered 402, from Major Kimball, U. S. Army, N, Y. Depot, df one keg of red lead paint, one keg of white: lead paint,- and several cans of paint; “that, after the delivery- of- the- lead and paint invoiced as above stated, he saw' the lead and paint so invoiced in the warehouse at Fort Washington,” and that subsequently-they were missing.-frona said .warehouse. The witness further testified- that the defendants were employed on the government tug Cushing, used for traffic between the -District of Columbia and Fort Washington. Thereupon there was exhibited to the witness the kegs of lead and the cans of paint sold by defendants to said Hayden, and witness was asked whether he was able to identify these kegs and cans as. the same which he saw in the warehouse at Fort Washington. Over the objection and exception of the defendants, the witness answered that he could not identify the cans of paint or the unlettered keg of lead, hut could identify the lettered keg of lead. The government then offered the kegs and cans of paint in evidence. The defendants’ counsel was permitted to cross-examine the witness before the question was passed upon by the court. The witness stated that he could only identify the lettered keg by the correspondence of a number on said keg with a number on the bill of lading; that he had not placed the number on the keg, and did not know who did. The defendants thereupon objected to the introduction of said lead and paint in evidence, for the reason that the same had not been proved to he the property of the United States, and further, that the lettering upon the keg was hearsay, and should not he admitted as so marked further than to identify the property as being the same found in the possession of the witness Hayden. The objection was overruled, and the keg and cans, with the lettering and number aforesaid, were submitted to the jury without limitation. One keg bore the number 402 stamped in the wood and in black paint the words, “Major Kimball, U. S. Army Quartermaster, Depot of New York.” “Counsel for the defendant thereupon withdrew objection to the unlettered keg of lead and to the cans of paint and burlap bags, for the purpose of commenting upon the dissimilarity of condition as to marking and numbering between same and the lettered keg.” Witness was then asked by counsel for the government to state to whom the kegs and cans belonged. Upon objection by the defendants, counsel for the government stated that the witness was offered as an expert, he being an army officer familiar with government property and the manner of marking same. Over the objection and exception of the defendants the witness then stated that the lettered keg belonged to the United States, but that he could not identify the other keg and the cans of paint.</p> <p>The. defendant Nolls, on behalf of the defendants, testified to the effect that the lead' and cans- of paint in evidence were purchased by the defendant Jackson “from two young men,” in the presence of the witness, for $3, and that, at Jackson’s request, the witness undertook to sell, and did sell, the lead and paint to said Iiayden for $5. The witness identified the burlap sacks in evidence as the ones in which the lead and cans of paint were wrapped when delivered to Hayden.</p>

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

Hearing on a motion by the appellees to dismiss an appeal. The Court.in the opinion stated' the .fácts. as follows: ' This is an appeal from an order, of the supreme court of the District, sitting as a probate court, confirming the verdict of.a jury that Rachael A. Richardson, claiming to be Rachael A. Brown, was not lawfully married to John A. Brown, deceased. • The facts, so far as they are applicable to the motion to dismiss filed by appellees, are as follows: Brown died…

Hearing on an appeal by tbe United States (specially allowed) from an order of the Supreme Court of the. District of Columbia, overruling a motion to quash a writ of certiorari issued by that court to the Juvenile Court of the' District of Columbia. The Court in the opinion stated the facts’ as follows: .

<p>Hearing oil an appeal by the respondent to a petition for the writ of habeas corpus, from an order of the Supreme Court of the District of Columbia discharging the relator.</p>

<p>Appeals; Citation; Waives.</p> <p>1. Qucere,—whether the rule of court requiring the issuance and service upon the successful party of a citation on an appeal to this court applies to an interlocutory order from which an appeal has been specially allowed by this court, as well as to final judgments and decrees.</p> <p>2. The acceptance of service by the appellee of the designation by the appellant of the parts of the record to be included in the transcript of the record on appeal is a waiver by the appellee of citation. (Following Leonard v. Rodda, 5 App. D. C. 256, and Dowling v. Buclcey, 26 App. D. C. 266.)</p>

Hearing on an appeal (specially allowed) from an order of the Supreme Court of the District of Columbia sitting as a probate court vacating a previous order of the court approving the final account of an executrix, and requiring her to give an additional bond.

<p>Patents; Applications; Parties; Due Process of Law; Injunctions; Former Adjudication; Appeals.</p> <p>1. Whether an applicant for a patent has assigned his interest in his invention or not, the application must be prosecuted in his own name.</p> <p>2. The question whether the assignees of an inventor whose applications are pending in the Patent Office are proper parties to a bill for an injunction against the Commissioner of Patents, filed by him and them, will not be considered by this court if not presented to the court below.</p> <p>3. The Commissioner of Patents has power to institute an investigation into the conduct of his office with a view to the efficiency of the service and the eradication of corrupt practices if such are found to exist; and the manner in which such investigation shall be conducted and testimony elicited is within his discretion, and that discretion is not subject to the control of the court.</p> <p>4. Where, in an investigation instituted by the Commissioner of Patents as to the conduct of his office, the rights and interests of an applicant for a patent are involved, due proees of law, so far as he is concerned, is observed if he is given copies of the charges made, and notice is given him that testimony will be taken, and he is given an opportunity to hear and cross-examine witnesses to be introduced, and to offer any testimony in his own behalf. '</p> <p>5. Upon the institution by the Commissioner of Patents of proceedings to investigate charges against an applicant for a patent and others, involving alleged corrupt practices in the Patent Office, it is not to be presumed that the charges will be sustained and the ultimate rights of the applicant affected injuriously, and an injunction based upon such a presumption is, at least, premature.</p> <p>6. The power to enjoin the action of an executive officer or a subordinate tribunal in a given case rests upon the same foundation as that to compel action by mandamus; and the writ of mandamus will not be used to perform the office of a writ of error, nor will' it lie where there is another plain and adequate remedy for the injury done. (Following Moore v. United States ex rel. Lindmarh, 33 App. D. C. 597.)</p> <p>7. Whether authorized to do so by rule 31 of the Patent Office or not, the Commissioner of Patents has the power, either in an ex parte proceeding or in an interference case, to inquire and determine whether an application for a patent has been altered or substituted without authority by the attorney for the applicant with the applicant’s connivance or consent, or by anyone else, because, if altered or substituted, the application will not be the one contemplated by the statute as the foundation of a patent.</p> <p>. 8. The acquittal of an applicant for a patent indicted with other persons for having conspired to fraudulently alter and change applications for patents is not a bar to an investigation in the Patent Office by the Commissioner of Patents as to whether the applications had been so altered and changed.</p> <p>9. Quaere,—whether an appeal to this court will lie from an order of the Commissioner of Patents striking an application for a patent from the files of the Patent Office on the ground that it has been fraudulently altered by the attorney for the applicant with the applicant’s connivance and consent.</p> <p>10. The courts are invested with no power to interfere with or to supervise the practice of the Patent Office. It is only in cases where a hearing is refused a party, or the Commissioner refuses to perform a plain duty, or where he undertakes to do an unwarranted act, or where there is no other adequate remedy, that the courts are authorized to interfere by mandamus or injunction.</p> <p>11. An appeal to the Supreme Court of the United States from this court will not lie, and an application for the allowance of such an appeal will be denied by this court, where its decree reverses a decree of the supreme court of the District of Columbia, enjoining the Commissioner of Patents from striking certain applications for patents from the files of his office, and proceeding with an investigation as to whether the applications had been fraudulently altered or changed.</p>

<p>Pleading; Common Cabriebs; Railroads; Negligence; Res Ipsa Loquitur.</p> <p>1. In a declaration against a common carrier for injuries to the plaintiff while a passenger, it is sufficient to charge in general terms that the plaintiff was injured while boarding car as a passenger, as a result of the defendant’s negligence, but, if specific acts of negligence are alleged, they must be proved.</p> <p>2. One who, while attempting to cross in front of a street car at rest and receiving passengers in a city street, for the purpose of entering it, trips on the fender and is injured, cannot be said to have been a passenger at the time, and, not being a passenger, the company is bound to use reasonable care only to prevent injuring him.</p> <p>3. Pedestrians are charged with knowledge of the fact that every street car or train in the District of Columbia is equipped in front with a suspended fender, to be operated by the motorman when the moving car comes in contact with persons or obstacles on the track, and a street railway company is not liable for injuries received by a pedestrian who, in daylight, trips over a properly constructed suspended fender of a standing car, while attempting to cross in front of the car.</p> <p>4. Before the rule of res ipsa loquitur can be applied, a condition must be found existing which presupposes negligence on the part of the person sought to be charged.</p> <p>5. Companies operating public utilities are entitled to the same protection at the hands of the courts as the law affords individuals.</p>

Hearing on an appeal by tbe complainants from a decree of tbe Supreme Court of the District of Columbia dismissing a bill in equity to enforce mechanics’ liens.

The Court in the opinion stated the facts as follows: This suit was begun by George W. Bowles, surviving husband of Catherine Bowles, deceased,, against George Ockstadt, sole heir at law of said Catherine, to compel the execution of a title to certain lands in the city of Washington, or else to establish a lien thereon. It appears from the admitted allegations of the bill that George W. Bowles married Catherine Ockstadt June 29th, 1892.

<p>Hearing oh an appeal by tbe respondent, the Secretary of the Interior, from an order of the Supreme Court of the District of Columbia, directing the issuance of the writ of mandamus.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal by the Secretary of the Interior from an order of the supreme court of the District, directing the issuanee of a writ of mandamus commanding the Secretary “to restore the names of the relators to the freedmen rolls of members or citizens of the Cherokee Tribe or Nation, to erase from said rolls the statements placed thereon derogatory to relators’ rights in said Cherokee Tribe or Nation, and to recognize relators as enrolled freedmen members of said tribe or nation.” The relators, Lillie Lowe, Ransom Lowe, Bertha Lowe, Evalina Lowe, Mary Robbins, Albert Rogers, and Dollie Jones, heirs at law of Sherman Jones, deceased, under a stipulation or agreement with the respondent, brought their action collectively instead of individually, to save a multiplicity of suits. While the cause was pending Secretary G-arfield retired, and his successor was made party respondent in his stead.</p> <p>The relators claim to be Cherokee freedmen by blood and by descent from former recognized slaves of the Cherokees, prior to and at the commencement of the Civil War, except that Dollie Jones claims to he the heir at law of Sherman Jones, deceased, who, it is claimed, was a descendant of the former Cherokee freedman. They aver that prior to November 16th, 1904, the Secretary of the Interior confirmed a decision by the Commission to the Eive Civilized Tribes, holding that relators, except William J. Lowe and James H. Lowe, designated in the petition as “new horns,” were entitled to enrolment as freedmen citizens of said Cherokee Tribe or Nation; that after a full and careful inquiry into the rights of relators and the record in the case, the names of relators, except said William J. and James H. Lowe, were, prior to November 16th, 1904, duly and regularly ordered placed on the final roll of freedmen citizens of said Cherokee Tribe or Nation; that thereafter the final roll of freedmen citizens of said Nation containing the names of relators, as such citizens, was duly and regularly approved by the lawful incumbent of the office of Secretary of the Interior, and the names of relators were duly entered, and placed on the regularly authenticated and approved final rolls of freedmen citizens of said Nation; that, prior to the time when the names of relators were struck from said final rolls, of said freedmen citizens of said Nation, the relators, except said William J. and-James H. Lowe, duly and regularly selected an allotment of 110 acres each of average allotable lands of the Cherokee Nation, and, after the names of relators had been duly and regularly placed on the final approved rolls of'freedmen citizens of the Cherokee Nation allotment, certificates were duly and regularly issued to relators for the lands so selected by them by the Commission to the Five Civilized Tribes, and are now held by them as conclusive evidence of their right to the lands so selected by them, and described in the allotment certificates aforesaid; that after the issuance to relators of said allotment certificates the Secretary of the Interior arbitrarily and illegally undertook to deprive relators of the rights vested in them by law, and without lawful right or power so to do struck, or attempted to strike, their names from said approved final rolls of Cherokee freedmen.</p> <p>The relators also aver that their ancestors, as a matter of fact, returned to and were within the Cherokee Nation on and prior to February 11th, 1867, and further aver that they were not required to have so returned by any treaty or other law, their ancestors having been Cherokee slaves at the outbreak of the Civil War; that the cancelation of the names of relators was thus illegally and arbitrarily ordered, because of an erroneous construction of the law.</p> <p>To this petition the Secretary responded, admitting that relators were descended from former Cherokee slaves, but denying that they or any of them were citizens or member of said Cherokee Nation. The answer also admitted “that on November 16th, 1901,. the Acting Secretary of the Interior approved a partial list of freedmen members of the Cherokee Nation, which contained the names of Mary Robbins, Sherman Jones, Albert Rogers, Lillie Lowe, Ransom Lowe, Evalina ,Lowe, and Bertha Lowe, said persons having been adjudged by the Commission to the Five Civilized Tribes, upon applications duly made by them or on their behalf, to be entitled to be enrolled as freedmen members of the Cherokee Nation, said commission having found upon the hearing had upon such applications that the principal applicant, Mary- -Robbins, through whom the others claimed to be entitled to be enrolled, was the slave of a Cherokee citizen at the commencement of the Rebellion, but returned to the Cherokee Nation within the time specified in the decree of the court of claims rendered on January 27, 1896, in the case of Whit’mire v. Gherohee Nation, 31 Ct. Cl. 140, for the return of freedmen to said Nation.”</p> <p>The answer further admitted that thereafter, and within the time fixed by the act of Congress of April 26th, 1906 (34 Stat. at L. 137, chap. 1876), for the completion of the rolls of the Five Civilized Tribes, his predecessor disapproved' the enrolment of said citizens, and struck their names from said partial list. It was also admitted that after said approval, by the Acting Secretary of the Interior, of said partial list containing the above names of relators, allotment certificates were issued to them, for lands selected by them as their allotments, but the answer averred that thereafter said allotment certificates were canceled, and other persons allowed to file on certain of said lands, and that no patents were ever issued or recorded for said lands; that after said approval, by the Acting Secretary of the Interior, of said partial list of freedmen members of the Cherokee Nation, and on June 30th, 1905, said commission rendered its decision upon the application for the enrolment as Cherokee freedmen of one James Rogers, who was shown by the evidence submitted to be a son of Mary Robbins, or Mary Rogers, whose enrolment had been approved as aforesaid; that the right of said James Rogers to be enrolled depended upon whether his mother, Mary Robbins, or Mary Rogers, had returned to the Cherokee Nation within the time specified by the decree of the court of claims rendered February 3d, 1906; that said commission found that said Mary Robbins, or Mary Rogers, did not return to and establish her residence in said nation within . the time specified in said decree and, therefore, denied the application; that subsequently, on July 19th, 1906, the Secretary of the Interior, by the Assistant Secretary, set aside said decision of -said commission denying the application of said James Rogers and directed a rehearing therein, and in the same order directed the Commissioner to the Five Civilized Tribes to rehear and readjudicate the application for enrolment, of the relators, and to consolidate all said applications on said rehearing and readjudication; that thereafter, and within the time fixed by law for the completion of the rolls of said Five Civilized Tribes, a rehearing of said consolidated applications was had, after due notice to all the parties concerned, at which rehearing they appeared either in person or by counsel, or both, and that upon said hearing the Commission to the Five Civilized Tribes rendered a decision dated December 3d, 1906, holding that the evidence submitted showed that the principal applicant, Mary Robbins, “was the slave of a Cherokee citizen at the commencement of the War of the Rebellion; that during the progress of said Rebellion she left the Cherokee Nation and did not return thereto and establish an absolute bona fide residence in the Cherokee Nation within the time specified in the decree of the court of claims rendered January 27, 1896, in the case of Whitmire v. Cherokee Nation, 31 Ct. 01. 140, as provided by par. 2 of sec. 3 of the act of Congress, approved April 26th, 1906 (34 Stat. at L. 137, chap. 1876), for the return of freedmen to said Nation. Said commissioner further found that the evidence showed that all the other applicants were descendants of said Mary Robbins, born since 1866, and neither claimed nor possessed any fights to enrolment as Cherokee freedmen other than as such descendants, and that, excepting the Kern-Clifton roll, none of the applicants could be identified on any roll of the Cherokee Nation in the possession of his office;” that said commissioner adjudged said applicants not entitled to enrolment as Cherokee freedmen, and severally denied their applications; that thereafter on March 4th, 1907, the Acting Secretary of the Interior confirmed said decision, and thereby canceled the names of said persons from said partial lists, approved as aforesaid; that in reopening and readjudicating said eases the Secretary proceeded in accordance with a long-established and well-recognized practice of the Department, extending from July, 1902, until the close of March 4th, 1907. The answer further states that William J. Lowe and James H. Lowe, who claim to be entitled to enrolment as “new borns” under the act of Congress of April 26th, 1906 (84' Stat. at L. 137, chap. Í876), were never enrolled, bnt that their applications were severally denied.</p> <p>To this answer a demurrer was filed, which was sustained by the court, and, the respondent electing to stand upon his demurrer, the writ of mandamus Was ordered to issue.</p>

<p>Contracts; Equitable Liens; Attorney and Client.</p> <p>1. While an agreement to pay a certain percentage of a fund may, under some circumstances, be deemed equivalent to a promise to pay out of the fund, and so create an equitable lien upon the fund in favor of the promisee, it -will not be so construed if the situation of the parties and the attendant circumstances show that it was not the intention of the parties that the fund itself should be looked to for security.</p> <p>2. Where a legatee under a will, being advised that an attack upon its validity was threatened, employed an attorney to represent her in the matter until a final settlement thereof should be effected, and agreed to pay him a contingent fee of “15 per cent of the sum of money and a sum equal to 15 per cent of the market value of any other property received by her under distribution or compromise,” and there was no contest over the will, the attorney claiming that he had averted 'one, and the legatee received her distributive share of the estate as provided for by the will, it was held that the attorney was not entitled to an equitable lien upon such distributive share, but that the agreement merely fixed 15 per cent as the measure of his client’s personal liability for the recovery of which he had an adequate remedy at law. (Distinguishing Willoughby v. MaoJcall, 1 App. D. C. 411; Hutchinson v. Worthington, 7 App. D. 0. 548; Sanborn v. Maxwell, 18 App. D. C. 245, and Arnold v. Carter; 19 App. D. C. 259.)</p>

Hearing on an .appeal from a judgment of the Supreme Court of the District of Columbia, entered upon a verdict of the jury, in. an action to recover a commission as real estate broker. 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, sustaining a motion to strike out an amended declaration, the plaintiff electing to stand' on. her amended declaration. The Court in the opinion stated the facts as follows: This case comes here on appeal from a judgment in favor of appellee, Orrin G. Staples, in the supreme court of the District, on a motion to strike out appellant’s amended declaration.

<p>Special Appeals; Equity; Injunction.</p> <p>1. A special appeal was allowed by this court from an interlocutory order in equity enjoining the prosecution of ejectment suits and framing issues for trial by jury, where it appeared that the trial of the issues would result in vexatious delay and costs, to no purpose if it should afterwards be determined, on an appeal from a final decree, that the equity court had no jurisdiction to determine the question between the contesting claimants.</p> <p>2. A court of equity has no jurisdiction,' under the guise of an ejectment bill, to determine the question of legal title.</p> <p>3. While a court of equity has the power to provide for the care and preservation of property pending the trial of actions of ejectment by rival claimants to recover possession of it, after so doing it.has no jurisdiction, at the instance of a party in possession who disclaims title, and who, without objection, has paid into court the rents and profits received ■ by him, and has been discharged from further accountability therefor, to enjoin the further prosecution of the ejectment suits and frame issues for trial by jury to determine the question of legal title as between the rival claimants; but under such circumstances the court will retain the cause until the ejectment suits are settled. (Citing Roller v. Clarice, 19 App. D. C. 539, s. c. 199 U. S. 541, 50 L. ed. 300, 26 Sup. Ct. Rep. 141.)</p>

Hearing on an appeal by tbe complainant from a decree of tbe Supreme Court of the District of Columbia, dismissing a bill in equity to compel the Commissioner of Patents to issue.a patent containing certain claims. The facts are stated in the opinion.

Hearing on an appeal* by tbe defendants, the Commissioners of the District of Columbia, from a decree of the Supreme Court of the District of Columbia enjoining a tax sale of land assessed for special improvements. The Court in the opinion stated the facts as follows: This is an appeal by the commissioners of the District of Columbia from an order of the supreme court of the District enjoining a sale of land under a lien for special assessments!

Hearing on an appeal by tbe defendants from a decree of tbe Supreme Court of-the. District of Columbia establishing the right of complainant to an interest in counsel fees provided for in an appropriation by Congress to pay Indians for certain lands taken by the United States; directing the receivers in the case to satisfy such interest out of .the funds in; their hands, and, in event of deficiency, awarding a personal decree therefor against'the defendants.

<p>Patents; Pkocess.</p> <p>An application for a patent for a process of producing ammonia by passing air and steam over peat maintained at varying temperatures is not novel.</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 tbe Commissioner of Patents sustaining an opposition to tbe registration of a trademark. Tbe facts are stated in tbe opinion.

<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>Pleading; Actions; Appeals.</p> <p>Where, in an action against the proprietor of a bathing beach to recover for injuries received by the plaintiff by reason of his stepping, while bathing, upon the splintered end of a submerged stake, the declaration alleged a contract by the defendant that "the beach was'safe, and its breach,, but it also showed that' defendant owed, and committed the breach of, a duty to the plaintiff independent of the contract, and a plea of not guilty was interposed,, and the evidence on the trial supported the declaration as one in tort,—a judgment on a verdict for the plaintiff will not be disturbed on appeal by the defendant on the theory that the action was ex contractu, and not in tort.</p>

<p>Patents; Interference; Claims and Specifications; Drawings; Conception and Disclosure.</p> <p>1. Where the Commissioner of Patents awards priority as to certain claims to one of the parties to an interference and to the other party as to other claims, and one of them appeals, this court will assume that there was a patentable difference between the two groups of claims.</p> <p>2. Where, in an interference involving an improvement in an automatic locking device for hose couplings, the senior party stated in his specifications that to provide the upper side of his locking pin with a “short inclined face” would permit automatic coupling of the device, it was held, reversing a decision of the Commissioner of Patents that the disclosure did not justify the claims, that the failure to state the angle of inclination was immaterial, as it would appear to any one skilled in the art that the specifications and drawings would immediately suggest an automatic coupler.</p> <p>■ 3, Failure by one of the parties to an interference to make the claims of the issue until the filing of his adversary’s application cannot affect his rights, where his specifications and drawings disclose the invention. (Following Lote v. Kenney, 31 App. D. 0. 205.) He is entitled to every use to which his invention is susceptible although such use be known or unknown to him.</p> <p>4. An applicant’s specifications and drawings must be construed in the light of the prior art.</p> <p>5. Patent Office drawings are not working drawings. Their object is to aid in conveying to one skilled in the art the idea of the inventor.</p> <p>6. Where, in an interference involving an improvement in a locking device for hose couplings, the Commissioner awarded priority to the senior party as to certain claims and to the junior party as to other claims, and the senior party appealed, it was held, on a review of the evidence, which showed among other things that the junior party who claimed to have conceived the invention prior to the date when he saw the senior party’s device at a public exhibit of allied devices, that his testimony was vague and indefinite as to the date of his conception, and also that the evidence showed that he had done practically nothing for about two years towards reducing the invention to practice, while the senior party was diligent, and that the senior party was therefore entitled to an award of priority.</p>

<p>Patents; Patentability; Interference; Conception and Disclosure.</p> <p>1. Although the various parts of a railroad car, such as the roof, the doors, the floor, the side construction, the draft rigging, etc., are related and co-operative to a certain extent, they are susceptible of improvement separately, and such improvements in these parts may constitute independent inventions and be patented accordingly.</p> <p>2. Where an inventor employs another to embody his conception in a drawing or in practical form, he is entitled to any improvement thereon due to the mechanical skill of the employee (following Milton v. Kingsley, 7 App. D. C. 531; Huebel v. Bernard, 15 App. D. C. 510; Hedge, v. Cromwell, 19 App. D. C. 192; Gallagher v. Hastings, 21 App. D. C. 88; Flather v. Weber, 21 App. D. C. 179; Sendelbach v. Gillette, 22 /up. D. C. 168; Kreag v. Geen, 28 App. D. C. 437; Larkin v. Richardson, 28 App. D. C. 471; Robinson v. McCormick, 29 App. D. C. 98, 10 A. & E. Ann. Cas. 548; and Braunstein v. Holmes, 30 App. D. C. 328) ; but, if the employee goes further than mechanical skill enables him to do and makes an actual invention, he is entitled to its benefit. (Following Robinson v. McCormick, supra.)</p> <p>3. It is not invention to conceive the idea that a metal railway car is a thing to be desired; but there must be conception of the means by which the desired result can be obtained.</p> <p>4. Where, in an interference involving improvements in steel car structure, it appears that the senior party, to whom was issued a patent containing forty-eight claims covering various parts of the ear construction before the junior party applied for a patent, had been a draftsman and inspector of car construction in the employ of a railroad company of which the junior party was superintendent of motive power and machinery; that the senior party had been called upon to prepare, and did prepare, drawings for improvements in steel railway freight cars from the plans and crude sketches of the junior party; that, after the issuance of the patent, the junior party filed his application, and was put in interference with the senior party, and was thereafter awarded priority as to thirty-one of the forty-eight claims, and appealed from the decision awarding priority to the junior party as to the remaining claims; and where it also appeared that the seventeen claims covered specific details of construction of various parts of the car which were not shown in the drawings upon which the senior party had been engaged, or shown to have been communicated or disclosed to him by the junior party, it was held that the senior party was entitled to an award of priority as to such seventeen claims.</p>

<p>Patents; Intebfebence; Diligence.</p> <p>1. A race of diligence between rival inventors cannot be judged by a mere computation of time. A period of time that might constitute due diligence in one case may, in another case, be inexcusable. The circumstances of each case must determine this question.</p> <p>2. Quwre, whether delay in the filing of his application by one of the parties to an interference, caused by the act of the assignee of the other party, will estop the latter from claiming lack of diligence against his rival.</p> <p>3. Where a party to an interference, although the first to conceive, was inactive at the date of the other party’s disclosure, and his inactivity continued until after his rival filed his application, and his excuse for delay covers a time subsequent to the filing of such application, he will be held to be lacking in diligence.</p>

<p>Patents; Interference; Reduction to Practice; Appeals.</p> <p>1. Where the junior party in interference did not reduce to practice before the filing date of the senior party, he must prove conception prior to that date, and diligence in reducing to practice at and subsequent to the time the senior party entered the field.</p> <p>2. Where the record, on appeal in an interference case, does not contain the testimony, but only the assignments of error and the decisions of the Patent Office tribunals, it will be assumed that the decision of the Commissioner was correct, and it will be affirmed.</p>

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

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

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

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

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

Hearing oil an appeal from a decision of the Commissioner of Patents rejecting certain claims in an application for a patent. The facts are stated in the opinion. Mr. Webster B. Buclcman for the Commissioner of Patents.

<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 a petition to this court for a writ of mandamus to compel one of the judges of the Police Court of the District of Columbia to settle a bill of exceptions. • The facts are stated in the opinion.

Hearing on an appeal from a decision of the Commissioner of Patents in an interference ease.

<p>Patents;.. Amendments; Affidavits; Interference.</p> <p>1. The rule that amendments -which enlarge the scope of the original application will be regarded with jealousy and disfavor does not apply to amendments made before the rights of others have intervened. (Following Phillips v, Sensenioh, 31 App. D. C. 159.)</p> <p>. statement by an applicant, in a supplemental oath accompanying an amendment of his application, that he conceived the subject-matter of the amendment prior to the filing of his original application, affords prima facie proof oí its truth, which must be overcome by affidavits to the contrary by one who questions its truth.</p> <p>3. The sufficiency of the supplemental oath of an applicant, accompanying an amendment to his application, is a question for the determination of the officials of the Patent Office.</p> <p>4. Where, in an interference, it appears that the junior party showed prior conception and disclosure of the interference in certain earlier applications, he will not be held wanting in diligence because' he waited fifteen months after the senior party entered the field before filing his application, when he was awaiting the final ruling of the Patent Office on his earlier applications to determine the advisability of filing a separate application; nor will the fact that he waited nine months before amending one of such applications show that he was not prosecuting it with diligence.</p>

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

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

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

<p>Appeal;. Writs op Error; Police Court.</p> <p>A writ of error to the police court was refused by this court, where it appeared from the bill of exceptions that, after conviction and sentence, the accused, instead of filing a motion in arrest of judgment, moved to quash the information against him, and also that the jurisdictional questions intended to be raised could be directly and effectively raised on a petition to one of the justices of the supreme court of the District for the writ of habeas corpus, and brought to this court on appeal if the writ should be denied.</p>

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, on a verdict directed by the court in an action to recover damages for malicious prosecution. The facts are stated in the opinion.

Hearing on an appeal by the accused from a judgment of conviction of the Supreme Court of the District of Columbia upon a verdict of the jury in a prosecution for embezzlement. The Court in the opinion stated the facts as follows: The appellant, William Rohde, appeals from a conviction under an indictment charging him with the offense of embezzlement. The indictment is in two counts, the first of which was abandoned on the trial.

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

Hearing on an appeal by tbe defendant from a judgment of the Supreme Court of the District of Columbia, upon an agreed statement of facts, in an action of assumpsit. The facts are stated in the opinion.

Hearing on an appeal by the defendants, the Commissioners of tbe District of Columbia, from a decree’ of the Supreme Court of the District of Columbia, sitting as an equity court, in a suit to reform a contract.

Hearing of an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia, on a special verdict, in an action upon a promissory note. Tbe Court in tbe opinion stated tbe facts as follows: This is an appeal from a judgment for tbe defendant, Rufus E. Andros, appellee here.

Hearing on an appeal from a judgment of the Supreme Court of the District of Columbia, sitting as a court of equity, sustaining a demurrer to and dismissing a cross bill in certain equity causes consolidated for hearing.

Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia, sitting as an equity court, dismissing a bill to establish the right of the complainant to a fund in the hands of certain of the defendants, executors of a decedent’s estate, and to vacate as fraudulent a transfer of an assignment of the claim. The facts are stated in the opinion.

Hearing oil an. appeal by tbe defendant from a judgment of the Supreme Court of the District of Columbia, upon verdict, in an action to recover damages for alleged personal injuries. The Court in the opinion stated the facts as follows: This is an action to recover damages for a personal injury to the plaintiff, Gértrude T. Hill, a passenger on defendant’s electric car, sustained in alighting from said car.

<p>Hearing on an appeal by the complainants from a decree of the Supreme Court of the District of Columbia dismissing a bill in equity for the partition by sale of certain real estate.</p> <p>The facts are stated in the opinion. .</p>

<p>Pleading; Amendment; Statute of Limitations; Trial; Direction of Verdict; Master and Servant; Negligence; Instruction to Jury; Judgments, Correction of.</p> <p>1. A count added by way of amendment to a declaration in an action for personal injuries does not state a new and independent cause of action, where it is based upon the same right of recovery as that stated in the declaration as originally filed, but states the cause of action more explicitly.</p> <p>2. A plaintiff’s right of recovery will not be defeated by a too technical construction of an amended declaration. (Following District of Columbia v. Frazer, 21 App. D. C. 154 and Beasley v. Baltimore & P. R. Co. 27 App. D. C. 595, 6 L.R.A.(N.S.) 1048.)</p> <p>3. An objection that there has been no replication to, or joinder of issue upon,- a plea of the statute of limitations to a count added to. a declaration by amendment, is waived by the defendant’s proceeding to trial upon that count, submitting prayers upon it, and treating it as though issue had been joined upon it; and such an irregularity is also cured by verdict and judgment.</p> <p>4. An assignment of error based upon the overruling of a motion, at the close of all of the evidence, to direct a verdict in favor of the defendant, merely goes to the sufficiency of the evidence to support the verdict, and does not raise all questions that might have been raised by the defendant by appropriate motions during the progress of the trial.</p> <p>5. In an action against a master for the death of his servant, which was tried in the lower court on the theory that the superintendent of the master was a' vice principal, and the trial court so charged the jury without objection by the defendant, the defendant is estopped to contend, under an assignment of error that the court erred in overruling a motion to direct a verdict in his favor, that the evidence showed that the superintendent was a fellow servant of the . master.</p> <p>6. Where the trial court grants a special instruction to the jury asked by one of the parties, submitting a question raised on the trial to the jury, such party is estopped to claim ■ on appeal that there was no evidence to warrant its submission.</p> <p>7. In an action against a master for the death of his servant, the negligence of a fellow servant contributing to the injury will not prevent a recovery if the negligence of the master had a share in producing it (Following District of Columbia v. Dempsey, 13 App. D. C. 533.)</p> <p>8. An engineer in the employ of a building contractor, and whose duty it is to operate an engine used in hoisting stones to be set in a building under course of construction, has the right to assume that he will be subjected to no unnecessary dangers and that the requirements of the specifications of the building contract will be followed by his employer, in so far, at least, as such requirements are reasonable and conducive to his safety.</p> <p>9. Where, ii? the construction. of a building, the building contract required the use of dowels in setting pieces of stone coping, and it was the practice to do so, but on one occasion, by direction of the superintendent of the building, such a stone was set in cement without being doweled, and'it was dislodged by the negligence of one of the workmen, and fell, killing the hoisting engineer, who was in the employ of .the. contractor, it was held in an action against the contractor for the death.of the engineer, that the result of the failure to dowel the stone could reasonably have been anticipated, and that, the negligence of the’ master having concurred with that of the fellow servant in causing; the death of the intestate, the master was liable.</p> <p>10. Where an action originally against two joint feasors was discontinued as to one by amendment of the declaration, but the clerk of the lower court erroneously entered a judgment on verdict against both, the judgment was modified so as not to include the defendant as to whom the action had been discontinued, and, as modified, affirmed.</p>

Hearing on an appeal by the complainant, and certain of the defendants 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 deed in trust.

<p>Hearing on an appeal from a decision of the Commissioner of Patents refusing to register a trademark.</p>

<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 personal injuries.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This action was brought in the supreme court of the District of Columbia by the appellant, Michael Sullivan, plaintiff below, for damages for personal injuries sustained by him through the alleged negligence of the appellee, the Capital Traction Company. For convenience, the appellant will be referred to as plaintiff and the appellee as defendant.</p> <p>The declaration alleges that on the day of the accident, the 9th day of January, 1907, the defendant was the owner of and operating a line of electric street railway cars in the city of Washington as a common carrier of passengers for hire; that, as such common carrier, it was its duty to run its cars on its line of railway in a prudent and careful manner so as to avoid injury and damage to passengers being conveyed thereon; that, on the above date, the plaintiff stepped upon and stood on the front platform of the rear car of a train composed of a motor car and trailer operated by defendant, and shortly afterwards paid the usual fare to the conductor of said train, and thus became a passenger on the car of defendant, and entitled, as such, to be safely carried to his destination; and that, while riding on the front platform of said rear car, the defendant, through its servants, ran the train forward and down the steep grade on B street, southwest, approaching First street, southwest, at such a dangerous and illegal speed as to strike the curve at the corner of said streets with great and unusual force, and thus, although plaintiff was holding on to the railing on the car, caused plaintiff to be thrown through the passageway between the cars, under the trucks and wheels thereof, where he sustained the injuries complained of. The declaration charges further that the injuries were caused by the negligence and lack of care by the defendant and its servants, without any negligence or want of reasonable care on the part of the plaintiff. To this declaration the plea of general issue was filed by the defendant. On trial, the jury rendered a verdict for the defendant. From the judgment thereon, the case comes here on appeal on the following assignments of error:</p> <p>“1. In refusing to grant plaintiff’s prayer as follows: “The jury are instructed that it is not, as matter of law, negligence ip itself for a passenger upon a street car to ride on the platform thereof, even though there be unoccupied seats inside the car, and if in the present case they find from the evidence that the plaintiff Avas riding upon the platform of the car from which he was throAvn, and that his being thrown from said car was the immediate result of the negligence of the agents of the defendant in driving said car down the steep grade on B street, approaching First, southwest, at an unduly high rate of speed and striking the curve with more than usual force, the plaintiff is entitled to recover, unless they further find from the evidence that the plaintiff did not exercise due, ordinary care, and thus was guilty of negligence which contributed to the production of the injury.</p> <p>“2. In refusing to grant plaintiff’s prayer number two, as follows:</p> <p>“The jury are further instructed that while, under the police regulations in force in this District, it is unlawful for an electric car to attain a speed greater than 12 miles an hour within the city limits, or a speed greater than 6 miles an hour at street crossings, yet it does not necessarily follow that such cars are allowed by said police regulations to maintain such a rate of speed under all circumstances, regardless of conditions or dangers that may arise requiring a slowing down to a less rate of speed. The rate of speed thus prescribed is the maximum rate not to be exceeded at any time; but such speed should be reduced whenever circumstances arise requiring, or the situation or condition of the tracks require, a lesser rate of speed to conduce to the safety of the passengers on said car, whether seated within or standing on the platform thereof with the express or implied consent of the defendant; and if, in this case, the agents of defendant drove said car on which plaintiff was standing down said steep grade and around said curve at First and B streets, southwest, at a rate of speed exceeding 6 miles an hour, or at a greater rate of speed than was consistent with the safety of the passengers on said car, whether seated within or standing on the platform thereof as aforesaid, by reason whereof the plaintiff was thrown from said car and injured thereby, he is entitled to recover, unless the jury further find from the evidence that the plaintiff contributed to the injury by a lack of -due, ordinary care while standing upon said platform at the time said injury occurred.</p> <p>■ “3. In refusing to grant plaintiff’s prayer numbér. three, as follows:</p> <p>• “The jury are further instructed that while, by a rule of the defendant corporation, it is not allowed to attain a speed greater than 4 miles an hour while rounding curves, yet it does not necessarily follow that such cars are allowed by said rule of defendant corporation to maintain such rate of speed under all circumstances, regardless of conditions or dangers that may arise requiring a slowing down to a less rate of speed. The rate of speed thus prescribed is the maximum rate not to be exceeded at any time; but such speed should be reduced whenever circumstances arise requiring, or the situation or condition of the tracks require, a lesser rate of speed to conduce to the safety of the passengers on said car, whether seated within or standing on the platform thereof with the express or implied consent of the defendant; and if, in this case, the agents of defendant drove said car in which plaintiff was standing down said steep grade and around said curve at First and B streets, southwest, at a rate of speed exceeding 4 miles an hour, or a greater rate of speed than was consistent with the safety of the passengers on said car, whether seated within or standing on the platform thereof as aforesaid, by reason whereof the plaintiff was thrown from said car and injured thereby, he is entitled to recover, unless the jury find from the evidence that the plaintiff contributed to the injury by a lack of due, ordinary care while standing upon said platform at the time said injury occurred.</p> <p>“4. In granting the following instruction offered by the defendant :</p> <p>“ ‘The jury are instructed as matter of law that in the case at bar no presumption of negligence on the part of the defendant arises from the happening to the plaintiff of the accident in question; the burden of proof is on the plaintiff to prove such negligence by a preponderance of the evidence/</p> <p>' “5. To the following portion of the court’s charge:</p> <p>“ ‘I want to say to you, in the first place, as a matter, of law, that the mere fact, of the happening of the accident in this case does not imply negligence on the part of the defendant, and therefore the burden of proof is upon the plaintiff to establish, by a preponderance of the evidence, that his injury was the direct result of the negligence of the defendant.’</p> <p>“6. To the following portion of the court’s charge:</p> <p>“‘The plaintiff can only recover when he has satisfied you by a preponderance of the evidence that his injuries were' the result.of the negligence of the defendant company, and that, even if you should find the defendant company was negligent in the manner in which it was operating its train at the time and at the point of the accident, yet if the plaintiff himself was negligent and his negligence contributed to his injuries, then he is not entitled to recover, notwithstanding the negligence of the defendant; or, if the accident was sustained because they were mutually negligent, he cannot recover/</p> <p>“7. In refusing the plaintiff the privilege of cross-examining the second vice president and general manager of the defendant company as to the attitude of said company towards a sign or warning, testified to by said witness as being displayed on the car in question in the following language, ‘Dangerous to Ride on the Platform.’</p> <p>“8. In refusing the plaintiff the privilege of cross-examining said witness as to the said sign or warning, with a view to ascertaining the practice on the part of the passengers of riding on the platforms of the cars of the defendant notwithstanding said warning.</p> <p>“9. In refusing the plaintiff the privilege of cross-examining the second vice president and general manager of the defendant company, said cross-examination being for the purpose of ascertaining what steps, if any, were taken by the defendant to compel obedience on the part of the passengers to a sign or warning, testified to by said witness on his examination-in-chief, as being displayed on the car in question, in the following language, ‘Dangerous to Ride on the Platform.’</p> <p>“10. In admitting as independent evidence a memoranda made by Frank C. Crowe, the claim agent of the defendant, who testified that said memoranda was read over to the plaintiff at the time the statement was made by the latter, and taken down by the witness.</p> <p>“11. In refusing plaintiff’s counsel permission to read in his argument to the jury certain extracts from the opinion of this court in the case of Capital Traction Co. v. Brown, 29 App. D. C. 473, 12 L.R.A.(N.S.) 831, 10 A. & E. Ann. Cas. 813, said extracts being set forth in full on page 29 of the record.”</p>

<p>Evidence; Testimony of Surviving Party to a Contract.</p> <p>1. Where one of the parties to a contract for the division of attorneys’ fees is dead, and, in an action by his executor against the surviving party, the sons of the decedent testified that, at an interview between the parties to the contract, the defendant stated she had earned certain fees and would remit to the other party his share of ■ them, it is competent for the defendant to testify that she made no such statement (construing D. C. Code, see. 1064, 31 Stat. at L. 1357, chap, 854, prohibiting the surviving party to a contract to testify as to any transaction with or declaration or admission of the deceased party ih an action on the contract by the executor of the deceased party against the surviving party.)</p> <p>2. D. C. Code, sec. 1064, should not be extended to prevent the living party to a contract from testifying to the truth or falsity of mere extraneous facts which have been testified to by other witnesses, not involving declarations or admissions of the deceased party.</p>

Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia dismissing a bill in equity for an injunction and sustaining a cross bill by the appellees asking for the same relief. The facts are stated in the opinion.

Hearing on an appeal by the complainant from a decree of the Supreme Court of -the District of Columbia sustaining a demurrer to and dismissing a bill of complaint to establish-a resulting trust.

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of the District of Columbia in an action to recover money deposited witb a real-estate broker under a contract of sale. Tbe Court in tbe opinion stated' tbe facts as follows: Tbe appellees, Jeaneatte Coben and Lillie Coben, brought action in tbe justice’s court to recover of appellant, Edward K. Eox, a real-estate broker, tbe sum of $100, received by tbe latter under an uncompleted contract of sale.

<p>Hearing on an appeal (specially allowed) "by the plaintiff, from an order of the Supreme Court of the District of Columbia vacating a prior order, summoning the executrix of the deceased judgment defendant to appear and defend. Affirmed.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is a special appeal from an order of the supreme court of the District vacating a prior order of summons of that court to appellee, Emily E. Parish, executrix under the will of Joseph W. Parish, deceased, to appear and make herself defendant in an action supposed to have been pending in said court in which appellants, Henry-E. Dutton, John G. Nichols,' Harvey G. Robinson, and Walter G. Robinson, trading as H.'E. Dutton & Company, were plaintiffs, and Joseph W. Parish, deceased, defendant, and to quash the summons, alias, and return.</p> <p>On April 4th, 1889, appellants, as plaintiffs in an action of assumpsit against said Joseph W. Parish, recovered judgment for $3,500, with interest. On September 24th, 1892, no fieri facias having issued, a writ of "scii'e facias to revive said judgment was taken. This writ was returned scire feci on October 1st, 1892,' and on the same day a writ of fieri facias was issued, which, by direction of plaintiff’s attorney, was returned nulla bona. No fiat was ever .entered in the scire facias proceeding, and nothing further was done, so far as the record discloses,- until June 11th, 1909, when plaintiffs suggested the .death of said Parish and appellee’s appointment and qualification as his executrix, and obtained an order “that a summons issue to said executrix to appear and make herself defendant in this action in place and stead of said decedent.” In this order of summons it is stated:</p> <p>“Whereas, the said Joseph W. Parish, late of the District - of Columbia, was summoned to be and appear in' this court to answer the writ of scire facias issued herein, service of this writ was had upon said decedent;</p> <p>“And Whereas, the said Joseph W. Parish is since deceased, as appears by the suggestion of the plaintiffs;</p> <p>“Therefore, you are hereby summoned to be and appear before the said court on or before the twentieth day, exclusive of Sundays and legal holidays, occurring after the day of the service of this writ on you, and show cause why the suit aforesaid should not be prosecuted to judgment on said writ of scire facias.”</p> <p>Service of an alias summons [issued July 6, 1909] was made upon appellee on October 9th, 1909, and, in due course, on October 18th, 1909, appellee entered a special appearance, and moved the court to vacate and set aside said order of summons upon the following grounds:</p> <p>“First. TJpon the cause of action in said Cause No. 27,030 at law, viz., a promissory note made by J. W. Parish to the order bf one John H. Doyle, bearing date April 18th, 1885,.for $3,500, action was brought and on April 4th, 1889, judgment rendered against said J. W. Parish for $3,500, with interest from April 18th, 1885, and that said judgment had ceased to be obligatory upon said J. W. Parish in his lifetime, and never has been and is not now a debt which the said Emily E. Parish, executrix, could be compelled to satisfy.</p> <p>“Second. That said cause No. 27,030 at law, having long since died, cannot now be revived by a summons to the executrix of said Parish to appear and make herself defendant therein.</p> <p>“Third. That the only way in which a judgment can be revived is by scire facias.</p> <p>“Fourth. That the time within which the judgment .could be revived has long since expired.</p> <p>“Fifth. That although on September 24th, 1892 (no fieri facias having ever issued on said judgment), the plaintiff caused to issue the writ of scire facias, which on October the 1st, 1892, was returned scire feci; and, although on the same day (in the absence of any appearance or plea thereto by the defendant, Parish) plaintiff caused the plea of fieri facias to issue, returned on the same day by the plaintiff’s order, nulla bona, no fiat was entered thereon within a year and a day, and none ever has been entered. Whereupon at the expiration of a year and a day from the issuance of the writ, the proceeding in scire facias was discontinued, and, after that date, was no longer a pending litigation.</p> <p>“Sixth. The executrix, Emily E. Parish, cannot be summoned to appear and defend an action long since dead, beyond the power of recall, and which had so died in the lifetime of her testator, against whom it had been filed.”</p> <p>This motion was granted and appellants excepted. Thereupon the court, upon motion of appellee, and over the exception of appellants, quashed said summons of July 6th, 1909, the alias summons upon which service was made, and the return thereon. This special appeal brings into review the action of the court in granting said motions of appellee.</p>

Hearing on an appeal by tbe complainants from a decree of the Supreme Court of the District of Columbia, sitting as a court of equity, dismissing a creditors’ bill. The Court in the opinion stated the facts as follows: This is an appeal from a decree dismissing a. creditors’ bill filed by the appellants, Charles H. Merillat and Mason N. Richardson, trustees, in the supreme court of the District, on June 30th, 1906.

Hearing on an appeal from a decision of tbe Commissioner of Patents sustaining tbe opposition to tbe registration of a trade; mark. Tbe facts are stated in tbe opinion,

<p>A trademark applied to silver-plated ware, consisting of the words “Wm. A. Rogers A. I.” followed by a horseshoe inclosing the letter “R,” is not so deceptively similar to the mark “Wm. Rogers, Mfg. Co.” and “Wm. Rogers & Son,” as to justify the Commissioner of Patents in rejecting an application for its registration, where it appears that both parties are entitled to use the word “Rogers.”</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 in an interference case. The facts are stated in the opinion. Mr. A. D. Salinger and Mr. Horace A. Dodge for the appellee Eurber.

<p>This case is governed by the decision of the Court in Stanbon v. Rowe, ante, 418.</p>

<p>This case is governed by the decision of the Court in Stanbon v. Howe, ante, 418.</p>

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

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

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

Hearing on appeals from decisions of the Commissioner of Patents, one in a trademark interference case, and the other sustaining an opposition to registration of a trademark. The facts are stated in the opinion.

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

<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>

■ The Coubt 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. An information filed in - the-.police-court by the corporation counsel charged Carry Nation with wilfully breaking and destroying “certain bottles containing intoxicating liquors, the property of . the Washington Terminal Company,” in violation of the act of Congress approved July 29, 1892, and amended April 21, 1906.

<p>Appeals; Appeal Bonds.</p> <p>1. Where two defendants appeal from a judgment and the appeal bond is executed by one of them only and his surety, the appeal will not be dismissed.</p> <p>2. The execution of a judgment appealed from is not superseded by the giving of an appeal bond reciting that the principal and surety shall “answer all damages and costs,”- where the lower court fixed the amount of the appeal bond for costs at $100, and the bond given is in that penalty,' it being apparent that the insertion of the word “damages” in the bond is a clerical error.</p>

Hearing on an appeal by the defendants from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action on promissory notes, and on a motion by the appellee to dismiss the appeal. 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 negligent injury to personal property. ■' The facts are stated in the opinion.

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

.Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia, enjoining the maintenance of a party wall and requiring the removal of the same. The facts are stated in the opinion.

<p>Trademarks; Similarity.</p> <p>1. A mark consisting of the word “Eogers” preceded by a wreath inclosing the letter “R,” and followed by the same combination with the numerals “1881,” and applied to silverware, is deceptively similar to a mark previously used by another, consisting of the word “Rogers” preceded and followed by an anchor, and applied to a similar class of goods, and is therefore not entitled to registration as a trademark, although both parties are entitled to use the word “Rogers.” (Mr. Chief Justice Shepard dissenting.)</p> <p>2. Where the reason of one of the parties to a -trademark interference proceeding for adopting the mark claimed to be deceptively similar to the mark of the other party is not above suspicion, that fact should be given weight, if a doubt exists. Mr. Chief Justice Shepard dissenting. (Eollowing American Stove Co. v. Detroit Stove Works, 31 App. D. C. 304; Walter Baker & Co. v. Harrison, 32 App. D. C. 272; Wayne County Preserving Co. v. Burt Olney Canning Co. 32 App D. C. 279, and Phmnix Paint tf Tarnish Co. v. John T Lewis & Bros. Co. 32 App. Di C. 285.)</p>

<p>Hearing on on 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 in an interference case. .</p> <p>The facts are stated in the opinion.</p>

<p>Appeals; Assignment op Ebhob; Trial; Judgment; Mandamus; Pensions.</p> <p>1. An assignment of error which presents a question not submitted to the court below is not entitled to consideration.</p> <p>2. The trial court has the power, during the term at which it is entered, to vacate an order sustaining a demurrer to an answer to a petition for the writ of mandamus, and directing the writ to issue, where the respondent has noted, but has not perfected, an appeal from the order.</p> <p>3. Mandamus is not a writ of right, and will issue only in the exercise of the sound discretion of the court. It will not issue where no right is shown to exist, or to perpetrate a fraud. (Eollowing Oar-field v. United States, 31 App. D. C. 332.)</p> <p>4. Mandamus will not issue to compel the Commissioner of Pensions to pay the relator a widow’s pension under a special act of Congress; where the relator, by her pleadings, admits charges by the respondent that her deceased husband procured the passage of the act by fraud, and that he was not wounded, as he claimed, while in the service of the United States. (Following Garfield v. United States, 31 App.'D. C. 332.)</p>

<p>Hearing on an appeal by one of several defendants from a decree of the Supreme Court of the District of Columbia, sitting as an equity court, establishing a lien upon certain funds.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from a decree of the equity court rendered on hearing, on bill and answer.</p> <p>The bill was filed by the appellees, Richard D. Gwydir, J. W. Edwards, and Wendell Hall, against Charles H. Treat, as Treasurer of thé United States, Hugh H. Gordon, and Benjamin. Miller, administrator of the estate of Levi Maish, deceased.</p> <p>The following facts substantially are alleged: That the Indians of the Colville Indian Reservation in the State of Washington were on May 9th, 1881, possessed of certain lands in said State, and entered into an agreement with the United States whereby they ceded to the latter one half of their said reservation on a promise of compensation in the sum of $1,500,-000, which the United States failed to pay. On May 12th, 1894, said Indians entered into a contract with Levi Maish and Hugh H. Gordon, partners practising law in the city of Washington, whereby the said Maish & Gordon undertook to prosecute the said claim against the United States for a fee of 15 per cent of the amount that might be recovered. Said contract was presented to the Secretary of the Interior, who, after reducing the amount to 10 per cent, approved the same. Complainants were the agents of Maish & Gordon in procuring the execution of said contract by the said Indians, and on June 15th, 1894, entered into a contract with them for compensation for their said services. Said contract reads as follows:</p> <p>Richard D. Gwydir, J. W. Edwards, and Wendell Hall, of the first part, and Levi Maish and Hugh H. Gordon, of the second part.</p> <p>Whereas, R. D. Gwydir, J. W. Edwards, and Wendell Hall have heretofore, at our instance, request, and upon our agreement to compensate them therefor, rendered services to Levi Maish and Hugh H. Gordon, the undersigned, in attending to the signing and execution of a contract between said Maish & Gordon and the Indians resident on the Colville Reservation in the State of Washington, by which contract said Maish & Gordon are made the sole attorneys of said Indians, to prosecute their claim against the United States for the sum of one million five hundred thousand dollars (1,500,000), which is claimed to be due said Indians under the treaty and agreement entered into between the United States and the said Indians on the 9 th day of May, 1891.</p> <p>We do hereby agree, in consideration1 bf said services, to pay to said parties out of the fee to be paid us for the collection of said claim, when the same may or shall be recovered thirty thousand dollars ($30,000), ten thousand dollars to each of said parties, Gwydir, Edwards, and Hall.</p> <p>Provided that we recover the total amount of said claim,- and are ourselves paid a fee of fifteen per cent upon the entire claim of one million five hundred thousand dollars ($1,500,-000). It is, however, distinctly understood and agreed that in case we do not collect the full amount of said claim of one million five hundred thousand dollars (1,500,000), or in case the commission paid us as attorneys for said Indians is reduced below fifteen per cent, then the amount paid to the said Edwards, Gwydir, and Hall shall be reduced in the same proportion. In other words we agree to pay said Gwydir, Edwards, and Hall jointly in a fee amounting in the aggregate to six forty-fifths (6/45) of the fee or commission actually paid us. This six forty-fifths (6/45) part of the fee to be divided equally between the said Gwydir, Edwards, and Hall.</p> <p>Witness our hands and seals this 15th day of June a. d. 1894.</p> <p>(Signed.) E. D. Gwydir. (Seal)</p> <p>J. W. Edwards. (Seal)</p> <p>Wendell Hall. (Seal)</p> <p>Levi Maish. (Seal)</p> <p>Hugh H. Gordon. (Seal)</p> <p>That long thereafter, July 21st, 1906, the Congress of the United States appropriated the said sum of $1,500,000 in payment of said claim, but in said act invested the court of claims with- jurisdiction to fix the amount of the compensation of the attorneys engaged in the prosecution of said claims, authorizing said court, in determining said compensation, to consider all contracts or agreements entered into by said Indians with attorneys who have represented them. About February 26th, 1899, Levi Maish died, and Benjamin Miller was thereafter appointed administrator of his estate. On May 28th, 1908, the' court of claims, under the authority of the act of Congress aforesaid, awarded to Maish & Gordon the sum of $20,000 in full for their compensation for services rendered said Indians, dividing the same into sums, namely, $14,000 to Gordon, and $6,000 to Miller as administrator of Maish. That, by the terms of the contract aforesaid, complainants are entitled to an equitable lien upon said sum to the extent of two fifteenths thereof. That Gordon and Miller have refused to recognize said demand, and are about to' collect said $20,000 from the Treasurer of the United States, and will do so unless the same be restrained.</p> <p>The prayers are for an injunction to restrain said payment; for the appointment of a receiver to collect and hold the said fund; and for a decree for complainants’ part of the same, namely, six forty-fifths, or two fifteenths of the same.</p> <p>The injunction was granted, and, later, receivers were appointed, into whose hands the fund passed. The joint answer of Gordon and Miller, after the denying the allegation of partnership, admits the allegations of the bill relating to the contracts set out therein, the appropriation of the money, and the reference to, and judgment of, the court of claims. They allege that the award of the court of claims was not to Gordon & Maish as partners, but to each as individuals for services rendered. They further say that the contract with complainants was based on the contract between the Indians and Gordon & Maish, which contract by its terms expired on July 25th, 1904. That two years after the expiration of said Indian contract, the appropriation act was passed, conferring jurisdiction on the court of claims to determine the amount of compensation to be paid attorneys who had performed services for the Indians, and to enter judgment for the same. That, pursuant to said act, defendants and complainants appeared in said court and presented their respective claims. Complainants presented and relied upon their contract aforesaid, and defendants presented and relied upon their contract with the Indians. That said court made its award to defendants entirely irrespective of said contract, and upon the principle of quantum meruit solely, holding that such was the purpose of the act submitting the matter to its judgment. Said awards were made for the individual services of Gordon & Maish, the latter up to the time of his death. That the said act afforded the only means for the determination of any claims by any persons whatsoever, and the decision of said court is final and conclusive. In conclusion it is alleged that the claim of complainants is based upon the successful prosecution of the contract with the Indians, and the same expired without the recovery of anything thereunder, and has never been revived, wherefore defendants are not liable under the contract with complainants.</p> <p>The court decreed a recovery in favor of complainants against the defendants jointly for the sum of $2,666.67, and ordered the same paid by the receivers, but also ordered the payment to Miller of $6,000, less the receivers’ commissions.</p> <p>The remainder of the money due Gordon was left in the hands of the receivers to answer the other claims preferred against him. Gordon also has appealed after severance from his codefendant.</p> <p>We have said that the cause was submitted on bill and answer, because, while the decree recites a hearing on pleadings and proofs, no testimony appears to have been taken.</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, sustaining a demurrer to and dismissing a bill for the removal of cloud from title, and for a partition. ,The Court in the opinion stated the facts as follows: This is an appeal from a decree dismissing a bill for the removal of cloud from title, and for partition between tenants in common.

Hearing on an appeal by the defendant, the Postmaster General, from a decree of the Supreme Court of the District of Columbia enjoining him from revoking an order admitting a publication to transmission through the mails at second class rates of postage.

Hearing on an appeal by the defendant, the Postmaster General, from a decree of the Supreme Court of the District of Columbia enjoining him from revoking an order admitting a publication to transmission through the mails at second-class rates of postage.

Hearing on an appeal by tbe complainant from a decree of tbe Supreme Court of tbe District of Columbia dismissing a bill for divorce. The facts are stated in tbe opinion.

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, dismissing a bill of complaint to establish an interest in a certain fund.

Hearing on an appeal from an order of the Supreme Court, of the District of Columbia sustaining a demurrer to an amended petition in a proceeding for an award of damages for the condemnation of certain buildings. The facts are stated in the opinion.

<p>Appeals; Executors and Administrators.</p> <p>1. It is a condition precedent to the right of appeal to this court, that the appellant show that he is directly aggrieved by the order appealed from.</p> <p>2. An appeal does not lie by an executor from an order made in an equity cause sustaining an exception to a report of the auditor allowing the .claim of an attorney for a fee for professional services in acting for the executor in a contest over the validity of the will, under an order of the probate court authorizing the executor to employ counsel, ' for the reason that the executor, as such, has no interest in the claim and therefore no right of appeal.</p>

<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 tbe bill of complaint to establish an interest in a certain fund.</p> <p>Tbe Court in tbe opinion stated tbe facts as follows:</p> <p>This is another of tbe suits growing out of tbe Maish and Gordon contract with tbe Indians of tbe Colville Reservation, and tbe award of the court of claims of fees due attorneys for services performed for said Indians, by authority of act of .Congress of June 21st, 1906 (34 Stat. at L. 325, chap. 3504).</p> <p>Tbe court of claims found that tbe total value of services rendered to tbe Indians was $60,000, and they divided tbe same among several attorneys, making tbe following awards: Benjamin Miller, administrator of Maish, $6,000; Hugh H. Gordon, $14,000; Marion Butler, $20,000; Josiab Yale, $10,000; Daniel B. Henderson, $5,000; Heber J. May, $3,000; and Frederick C. Robertson, $2,000.</p> <p>Tbe bill of Indian Protective Association, a corporation organized under tbe laws of Delaware, making Gordon and Miller defendants, set out tbe original contract between Maish and Gordon and tbe Indians, tbe appropriation act of Congress directing the court of claims to ascertain the actual value of the services rendered by the several attorneys claiming to have represented the Indians, and the judgment of the court of claims, before mentioned. It then alleged that in January, 1901, the said Gordon, for himself and as surviving partner of Maish and Gordon, entered into a contract with Daniel B. Henderson, who held it for complainant, and Heber J. May, whereby he employed them to assist him in the prosecution of the claim of the Indians, agreeing to pay them 25 per cent of the-fee contemplated in the Maish and Gordon contract with the Indians, with the additional sum of $10,000; the same to be paid out of any appropriation which may be made for the payment of the Indian claim. That on January 23d, 1901, said Henderson and May assigned one third of the fee contracted for by them as aforesaid to Richard 0. Adams. That afterwards, on September 3d, 1901, said May assigned his remaining interest in said fee to Adams, obligating himself to continue to perform the services that he had undertaken. That on September 4th, 1901, said Adams assigned all of his right, title, and interest therein to the Indian Protective Association. The payment of the awards of the court of claims to Gordon and Miller was enjoined, and the said fund was after-wards delivered to receivers, who hold the same pending the litigation respecting its distribution.</p> <p>The bill claims that complainant is entitled to one fourth of the entire sum of $30,000, the aggregate award to Gordon, Miller, Henderson, May, and Robertson, making $1,500, and also to the $10,000, under the contract aforesaid, which may be credited by the $5,000 awarded to Henderson and May, leaving a balance due by Gordon and Miller of $9,500.</p> <p>• The answers do not deny the incorporation of the complainant, but allege that the charter had been annulled and declared -void by proclamation of the governor of Delaware in accordance with law on January 21, 1908, which was some months before the filing of its bill. They deny the assignment by Henderson to Adams, and allege that he assigned all of his interest to Butler and Vale.' They further allege that no award was made on the contract of Maish and Gordon wfith the Indians, but that the same was made to all of the attorneys, irrespective of contract, and on a quantum meruit basis, as provided by the act of Congress, and that thereunder the award of $5,000 was .made to Henderson, and $3,000 to May. It is alleged that all further claims are concluded by said award and judgment of the court of claims. The bill was dismissed, and complainant has prosecuted this appeal.</p>

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia on verdict in an action to recover damages for the alleged negligent killing of the plaintiff’s intestate.

Hearing on an appeal from a decree of the Supreme Court of the District of Columbia, sitting as a court of equity,- by tbe complainant in a bill for tbe establishment of tbe assignment of a life insurance policy, who was also one of several defendants to a cross bill seeking to vacate such assignment, and for tbe distribution of tbe proceeds of the policy.

<p>This case is governed by the decision of the court in Waters v. Kopp, ante, 575.</p>

<p>Hearing on an appeal from a decree of the Supreme Court of tbe District' of Columbia confirming the report of the auditor in a proceeding to enforce a former decree of the Court and to establish a certain interest in the proceeds of the sale of real estate.</p> <p>The facts are stated in the opinion.</p>

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

The Court in the opinion stated the facts as follows: This case was brought here by the United States from the police court of the District of Columbia for the review of a judgment quashing an information charging the appellee, the Capital Traction Company, with operating its street cars within the District in violation of sec. 16 of the act of Congress approved May 23, 1908 (35 Stat. at L. 246, chap. 190), which provides: “Sec. 16.

<p>This case is governed by the decision of the court in United States v. Capital Traction Co. ante, 592.</p>

Hearing on an appeal by tbe petitioner from a judgment of tbe Supreme Court of tbe District of Columbia, overruling its motion for judgment on a return of the respondent to its petition for the writ of certiorari for the cancelation of a tax assessment. The facts are stated in the opinion.