Volume 35 — Appeals, District of Columbia

Hearing on an appeal by the defendants from a decree of the Supreme Court of the District of Columbia in a suit to enforce a mechanic’s lien.

Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia in a suit for maintenance. The Court in the opinion stated the facts as follows: This is an appeal from a decree of the supreme court of the District of Columbia against the appellant, Charles N. Thompson, in a suit for maintenance brought against him by the appellee, Jessie E. Thompson, his wife.

<p>Hearing on an appeal by the defendants from a decree of the Supreme Court of the District of Columbia granting the relief sought in a suit by a judgment creditor to vacate as fraudulent a transfer of an interest -in land by the judgment debtor.</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 District of Columbia, declaring null and void, as against appellee, Lyman Herdman, complainant below, three deeds conveying the interest of William W. Breneman, one of the appellants, in certain real estate constituting his only property, to his sister and coappellant, Mary De W. Breneman, on the ground that said deeds were executed to hinder, delay, or defraud appellee, a then existing creditor.</p> <p>In 1869 William Wilson, the grandfather of the defendants, died in this city, leaving a will, in which certain parcels of ground were devised to his executor to be held in trust for the benefit, during her lifetime, of Marion V. Breneman, testator’s daughter and defendants’ mother, and, upon the death of said beneficiary, “in trust for any child or children she may have at the time of her decease surviving her, until such child- or children respectively attain the age of twenty-one years, when the same shall be conveyed by my said executors, or the survivor of them, to such child or to such children, in equal proportions or shares, and his or their heirs; and if my said daughter leave no child, or if, leaving- a child or children, it or they die before attaining the- age of twenty-one years, unmarried and without leaving a child or children begotten in lawful wedlock, then at the' death of the last surviving child of my said daughter, under age and unmarried and without issue as aforesaid, the said property shall be conveyed by my said executors, or the survivor of them, in equal proportions or shares, to such of my other children as may be then living,” etc.</p> <p>During 1894 and 1895 the defendants lived with their mother as they had previously done. During that period the defendant, William W. Breneman, borrowed of the complainant sums aggregating more than $2,500. Breneman had borrowed, and was borrowing during that period, sums of money from other parties, and in September, 1895, was hard pressed by his creditors, and had no property save his interest in his grandfather’s estate. On the 28th of September, 1895, he executed a deed reciting a consideration of $10,000, “and divers other valuable and good considerations,” in which he conveyed his undivided one-half interest in said real estate named in said will, to his sister in fee simple. This deed was recorded on October 1st following. On September 17th, -1896, another deed, reciting the same consideration and conveying the same property, was executed by Breneman to his sister. This deed was followed by still another, dated November 1st, 1897. The second and third deeds were made to correct alleged errors in the first. At the time these deeds were executed, Breneman was more than twenty-one years of age.</p> <p>By deed dated May 22d, 1900, Marion Y. Breneman, Mary De W. Breneman, and William W. Breneman joined in a deed of trust upon said property, for the purpose of raising $60,000. The larger part of this sum was expended in the erection of an apartment house on the property. Mrs. Breneman died May 29th, 1908.</p> <p>In 1901 complainant brought suit against Breneman, and on January 7th, 1902, obtained a judgment by default for $2,536.79, with interest and costs. Execution issued thereon, and was returned nulla bona. Thereafter, on April 7th, 1902, complainant filed the petition herein, in which he averred that said conveyances were colorable only, and made for the sole purpose of defrauding the creditors of said Breneman and the complainant; that Mary De W. Breneman accepted the conveyances with knowledge of their purpose; and that there is a secret agreement between the grantor and the grantee inconsistent with the terms of said conveyance. The petition closed with the prayer that, subject to said deed of trust, the amount of complainant’s judgment be declared to be a lien on the said interest of William W. Breneman in said property, and' that, unless said judgment be satisfied on or before a day certain, said interest be sold.</p> <p>Although answer under oath was expressly waived, each of the defendants so answered. In his answer Breneman admits “that at the time said conveyances were made he was heavily indebted to the complainant; but this defendant avers that at said time by far his largest creditor was the said Mary De W. Breneman, to whom he was indebted in the sum of twelve thousand five hundred dollars ($12,500), which amount had either been loaned to this defendant, or paid out by the said Mary De W. Breneman in cash and on behalf and at the request of this defendant.” This answer continued to the effect that said conveyances were made upon a consideration in excess of the value of the property conveyed, in good faith, and without any intent of defrauding other creditors.</p> <p>The answer of Miss Breneman recites that said deeds were executed and delivered to her “for a good, full, valuable, and adequate consideration;” that at the time she had reason to believe that her brother had other debts, but had no knowledge “as to the amount or condition of the same;” “that at the time the first of said conveyances was made, the said William W. Breneman was largely indebted to her for cash loaned by her to him, for notes of his which she has indorsed and had been compelled to pay, and for other sums of money which she had expended for him at his request, said amounts aggregating the sum of $12,500.” The answer also “denies any knowledge of any attempt on the part of the said William W. Breneman to defraud his other creditors.”</p> <p>Issue was joined and testimony taken. The learned trial justice filed a careful and comprehensive opinion, in which he reached the conclusion “that the financial transactions of this family were all closely connected; and that all three were not only interested therein, but must have known abóut the same when the debts were created; and that the sister must be held to have had knowledge that would prevent her from accepting a deed from her brother of all his interest, such as a bona fide purchaser could have taken; and that therefore, in equity and good conscience, the said deed, and the two correction deeds following the deed of September 28th, 1895, ought to be set aside, and declared null and void as to the complainant.”</p>

Hearing on an appeal by the petitioner, the District of Columbia, in condemnation proceedings, from an order of the Supreme Court of the District, vacating an order by the petitioner dismissing the proceedings after verdict and before confirmation thereof, and overruling a motion by the petitioner to dismiss the proceeding, and finally ratifying and confirming the verdict.

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

Hearing on an appeal by tbe defendants from a decree of the Supreme Court of the District of Columbia, removing the cloud of a judgment lien from complainant’s title to land. The Court in the opinion stated the facts as follows: This is an appeal from a decree removing the cloud of a judgment lien from complainant’s title to a lot of land.

■ Hearing on an appeal by the plaintiff from a judgment of the Supreme. Court of the District of Columbia, on verdict, in an action for damages for alleged negligence.

Hearing on an appeal from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action for breach of contract. The Court in the opinion stated the facts as follows: This is an appeal from a judgment rendered in the supreme court of the District of Columbia against the appellant, William W. Danenhower, and in favor of appellee, Narcissa Hayes, for the sum of $250 for the breach of an alleged contract.

Hearing on an appeal by tbe complainants from a decree of tbe Supreme Court of tbe District of Columbia, dismissing a bill in equity to declare void a trust created by will. Tbe facts are stated in tbe opinion.

Hearing on an appeal by tbe defendant from a judgment of the Supreme Court of the District of Columbia, entered upon motion of the plaintiff after the striking out as frivolous of a demurrer of the defendant to the declaration.

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 damages against a jockey club and its stewards, by the holder of a ticket of admission, who was refused admission to the track of the jockey club. The facts are stated in the opinion.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, overruling a demurrer to a plea to a declaration, and the plaintiff electing not to amend, dismissing the action.

Hearing on an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia, upon a verdict directed by tbe court, in an action for damages for the death of tbe plaintiff’s intestate.

Hearing on. an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, dismissing an appeal to that court from the Municipal Court, upon the ground that the appeal bond was executed by one surety only. The facts are stated in the opinion.

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

Hearing on appeals in an interference proceeding from a decision of the Commissioner of Patents, finding for one of the parties as to certain of the issues and for the other party as to the other issues. The facts are stated in the opinion.

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

Hearing on an appeal by tbe complainant from a decree of tbe Supreme Court of the District of Columbia establishing a partnership and referring the cause to the Auditor to state an account between the parties, and continuing the cause to await such report. The Court in the opinion stated the facts as follows: This suit was begun by a bill filed by Abe King on March 24th, 1909, against Michael Harrington and Lorenzo A. Bailey, —the latter being sued formally as trustee.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia in an action to recover damages to personal property. The Court in the opinion stated the facts as follows: This is an appeal from a j'udgment of the supreme court of the District of Columbia awarding appellee, Julia Fitzgerald, plaintiff below, damages for injuries inflicted upon her property by the alleged negligence of the appellant, the Baltimore & Ohio Railroad Company.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, upon verdict, in an action for damages under the employers’ liability act of Congress of June 11, 1906, for the death of plaintiff’s intestate.

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

Hearing on an appeal from a decree of the Supreme Court of the District of Columbia in a suit in equity for the construction of a deed in trust.

<p>Hearing on an appeal by tbe defendant from a decree of tbe Supreme Court of tbe District of Columbia enjoining him from the further prosecution of an action of ejectment.</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 District of Columbia enjoining appellant, Joseph Parker Camp, from the further prosecution of an action of ejectment involving the title to original lot No. 20 in square No. 254 in the city of Washington, instituted by him against the late Caleb C. Willard, under whose last will appellees, Kate Willard Boyd, Henry K. Willard, and George E. Howe, devisees in trust under the last will of Caleb O. Willard, deceased, were named as trustees, and in that capacity herein appear.</p> <p>Said lot was sold by the United States commissioners to Samuel Blodgett, Jr., but no conveyance was made to him; hence he acquired only an equitable fee-simple interest. By a deed of trust dated January 28th, 1794, duly recorded, Blodgett conveyed said lot to Thomas Johnson, Jr., and Thomas Peter in trust to secure said United States commissioners from loss by reason of any default in the payment of prizes which might be drawn in a lottery then being conducted by said Blodgett, and called the “Hotel Lottery.” Subsequently, while said deed of trust was still in force, he demised this lot by the execution of three leases, each for a term of ninety-nine years, renewable forever, as follows: “On April 13th, 1801, the east 20 feet fronting on F Street to James Daugherty. On April 14th, 1801, the west 19 feet, 11£ inches, to Edward Frethey, and on April 28th, 1804, the middle 11 feet, 11 inches to Edward Fennell. In the Daugherty and Frethey leases an annual rental free of all taxes, etc., of $40 was stipulated, while the Fennell lease provided for an annual rental of $24. The Daugherty and Erethey leases contained a condition that upon payment by the lessee, his heirs or assigns, at any time or times during the continuance of that or any future demise, of the sum of $500 the grantor, his heirs or assigns, would execute a deed in fee simple of the demised premises to the lessee or his heirs or assigns. It was further agreed that any sum not less than one tenth of said $500 might be paid at any time, and that so much in proportion of the rent should be lessened. In both the Daugherty and Erethey leases the lessee covenanted to “erect and build a good and substantial dwelling house” on the demised premises, to be completed and tenanted during the course of the year. In the Eennell lease the lessee was entitled to a deed in fee simple upon the payment of $300.</p> <p>On October 9th, 1802, Robert S. Bickley instituted an equity suit in the then circuit court of the District of Columbia against Blodgett, Thomas Peter, surviving trustee under said deed of trust, Thomas Monroe, superintendent and agent of the affairs of the District of Columbia, and others, praying that the property of said Blodgett in the District of Columbia be sold to satisfy a judgment for the sum of $21,500 and costs, which Bickley had obtained in Pennsylvania, in a suit based upon the default of Blodgett in the payment of the prize to which Bickley was entitled as the holder of a ticket in said Hotel Lottery. This suit resulted in a decree dated October 4th, 1805, directing the payment of said judgment on or before a day certain, and that in default thereof the property of said Blodgett described in said decree, and including certain squares and lots, should be sold. It was further ordered and decreed that “certain ground rents reserved by the said defendant Blodgett by indenture made between the said Samuel Blodgett of the one part and Edward Frethey, one of the defendants aforesaid, of the other, part, bearing date on the 4th day of April, 1801, and certain other ground rents reserved by the said Samuel Blodgett by indenture made between the said Samuel Blodgett of the one part and James Daugherty, one of the said defendants, of the other part, bearing date on the 13th day of April, 1801, be also sold for tbe purposes aforesaid.” Blodgett failed to comply with the order of payment, and the trustee named in said decree advertised and sold all of said squares and lots; “also several certain ground rents reserved by said Blodgett.” The ground rent reserved .under the Daugherty lease was sold to one Henry Pratt for $360, and the ground rent under the Edward Erethey lease was sold to Robert Howe for $400. The deed in each instance conveyed all the right, title, and interest of said Blodgett in said ground rents.</p> <p>The proceeds of the sale under said decree of October 4th, 1805, failed to liquidate the judgment, and on May 28th, 1810, Bickley filed a supplemental bill praying the sale of certain other property, “lately discovered,” in satisfaction of said judgment. In this supplemental bill was included the ground rents reserved in the Fennell lease, “and the reversionary interest of said Blodgett therein, whatsoever the same may be.” The decree directed the sale of “all interests, claim, and right of said Blodgett of, in, and to said property.” A different solicitor appeared for the petitioner in the prosecution of this supplemental bill. It is not disputed that the sale 'of the Fennell ground rent conveyed to the grantee whatever interest Blodgett had in the land covered thereby.</p> <p>The purchaser of the Daugherty ground rent assigned his interest to said Bickley, to whom the trustee conveyed “all the right, title, and interest” of said Blodgett in said ground rent, along with the other property, by deed dated April 3d, 1807, Thomas Peter, surviving trustee under the Blodgett deed of trust, and Thomas Monroe, superintendent, etc., joining in the conveyance. Bickley, on May 1st, 1813, for a consideration of $400, conveyed said east 20 feet in fee simple to James Daugherty.' The granting clause contains the following: “All that part of lot number 20, in square number 254, in the city of Washington, fronting on E Street north, 20 feet, which said part of a lot and premises was heretofore, to wit on or about the 13th day of April in the year 1801, leased on the conditions herein mentioned, by a certain Samuel Blodgett to the said James Daugherty, and all the estate, interest, and claim of the said Samuel Blodgett in and to the said part of a, lot and premises, was afterwards sold and conveyed by Daniel C. Brent as trustee, under a decree of the said circuit court of the District of Columbia for the county of Washington, to the said Robert S. Bickley, which will fully appear, reference being had to the land records of the county of Washington, in the District of Columbia, together with the rights, privileges, and appurtenances thereto belonging or in anywise appertaining.” It thus appears that Daugherty, the leaseholder, became the owner of the ground rent.</p> <p>On January 15th, 1807, Brent and Peter conveyed to Robert F. Howe, the purchaser at said trustee’s sale, “all the right, title, and interest of, in, and to the said ground rent reserved by the said Samuel Blodgett by indenture made between him and the said Edward Frethey.” On July 18th, 1835, the leasehold and ground rent interests became merged.</p> <p>By mesne conveyances the title conveyed under said decrees, together with the leasehold interests, became vested in one Benjamin F. Isherwood, who, on May 4th, 1882, conveyed all of said lot in fee simple to Caleb C. Willard, complainant’s testator.</p> <p>The appellant, Camp, claims title to said lots by grant, from the heirs of Blodgett, of their supposed reversionary interest in said lot.</p> <p>The prayers for relief are in the alternative. “If the court shall be of the opinion that, under the mesne conveyances and proceedings hereinbefore set forth, the complainants have derived and are now vested with all the right, title, and interest which the said Samuel Blodgett had to the lot in question,” the court will grant a writ of injunction enjoining said defendant from the further prosecution of said ejectment cause. If, on the other hand, the court “should be of the opinion that the complainants did not derive under said mesne conveyances and proceedings hereinbefore set forth, and are not now possessed through the same, of all the right, title, and interest to the estate which the said Blodgett owned in said lot, and should further be of the opinion that the defendant is vested with the reversion in fee as assignee of the heirs of the said. Blodgett, then that the court will decree that the said defendant renew the said leases to the complainants for a period of ninty-nine years, renewable forever,” etc.</p> <p>To the bill of complaint the defendant filed a demurrer, contending therein that the bill does not set forth such a case as entitles complainants to the relief sought, that complainants have a complete remedy at law, and that the court is without jurisdiction in the premises.</p>

<p>Appeal and Error ; Bill op Exceptions ; Witnesses ; Street Railways ; Negligence; Instructions to Jury; Objections and Exceptions; Automobiles.</p> <p>1. Where the recital of the evidence in a bill of exceptions consisted in great part of questions to and answers by witnessses as stenographically reported at the trial, this court suggested that it was in violation of rule 5 of the court, and cited District of Columbia v. Frasier, 21 App. D. O. 154; but as no motion to strike out was made by the appellee, the appeal was entertained, with the statement, however, that the rule would thereafter be more strictly observed.</p> <p>2. That the trial court asked a witness if he had been drinking, and then allowed counsel to cross-examine the witness on the subject, will not be held to be prejudicial error, where the testimony of the witness had been contradictory and his statements confused, and in settling the bill of exceptions the trial court stated that when the court asked the question the court was of the opinion that the witness had not only been drinking, but was plainly intoxicated. (Distinguishing Ruppert v. Wolf, 4 App. D. C. 556.)</p> <p>3. A street railway company has a preferential, but not an exclusive, right to the use of the parts of a public street occupied by its tracks. (Following Capital Traction Co. v. Apple, 34 App. D. C. 559.)</p> <p>4. Though one may be in peril through his own negligence, another who perceives that peril is bound to exercise ordinary care to prevent doing him an injury. (Following Capital Traction Co. v. Dimer, 33 App. D. C. 332, and Capital Traction Co. v. Apple, supra.)</p> <p>5. It is not error for the trial court to refuse an instruction asked by the defendant, a street railway company, in a personal injury suit, to the effect that if its motorman wilfully ran down plaintiff’s automobile the plaintiff cannot recover, where the evidence does not indicate a wilful, intentional injury by the motorman.</p> <p>6. An objection by the defendant in a suit resulting from a collision between the defendant’s street railway ear and the plaintiff’s automobile, to an instruction asked by the plaintiff to the effect that the burden of proving plaintiff’s contributory negligence is upon the defendant, is not tenable when based not upon the ground that a plaintiff’s contributory negligence may appear from his own evidence, on which point the defendant asks no instruction, but upon the ground that the prayer fails to refer to the defendant’s claim of concurrent negligence on the part of the plaintiff, where the court in other instructions tells the jury that if they find that the act of the plaintiff caused the collision they should find for the defendant.</p> <p>7. While it is the duty of evéryone under ordinary circumstances to use his eyes and ears amid conditions of danger, the failure to look and listen before entering upon a street car track does not eonsti- . tute negligence as matter of law (following Capital Traction Co. v. Apple, supra) ; but negligence in this respect depends upon the circumstances of the particular case, and is for the determination of the jury. (Mr. Justice Van Orsdel dissenting.)</p> <p>8. It is not negligence in law for the driver of an automobile having a top or hood, to fail to look back or anticipate the approach from the rear of a street railway car, while driving his automobile on the railway tracks in a city street. While he is chargeable with a greater degree of care, under such circumstances, than ordinarily, he is not charged with the duty of keeping a lookout to the rear to the exclusion of his duty to look ahead. The duty to look ahead is paramount.</p> <p>9. It is not error for the trial court to refuse to direct a verdict for the defendant, a street railway company, in an action for damages by the owner of an automobile, who was injured and whose car was wrecked by its being run into from the rear by one of the defendant’s cars, where the plaintiff’s evidence showed that the motor car was being driven by the plaintiff on the defendant’s tracks in a city street, to avoid a coal wagon, that the plaintiff did not look behind at anytime, but depended on the sound of the gong of any approaching street car, and that the motorman of the colliding street car sounded his gong very shortly before the collision occurred.</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 personal injuries. The Court in the opinion stated the facts as follows: This suit was brought by the appellee, Helen Gould Morgan, in the .court below, to recover damages for personal injuries received while a 'passenger on the train of the appellant, the Baltimore & Ohio Railroad Company.

Hearing on an appeal by the defendants from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action against a carrier to recover damages for the loss of a shipment of goods.

<p>Certiorari; Postoffice; Officers.</p> <p>1. Certiorari lies to inferior courts and to special tribunals exercising judicial and quasi judicial functions, to bring their proceedings into the %uperior court, where they may be reviewed and quashed if it be made plainly to appear that such inferior court or special tribunal had no jurisdiction of the subject-matter, or had exceeded its juris-, diction, or had’deprived a party of a right, or imposed a burden upon him or his property without due process of law (following District of Columbia v. Burgdorf, 6 App. D. C. 465; Eendley v. Clark, 8 App. D. C. 165; Bradshaiv v. Earnshaw, 11 App. D. C. 495) ; and to that extent is in the nature of a writ of error; but it does not, like the latter, go to errors of judgment that may have been committed in the process of the exercise of an existent jurisdiction. (Following Eendley v. Clark, supra.)</p> <p>2. While the writ of certiorari has been used in this District to review proceedings of inferior courts and of special officers and boards acting in a quasi judicial capacity (citing Allman v. District of Columbia, 3 App. D. O. 8; Jones v. District-of Columbia, 3 App. D. C. 26; Keyser v. District of Columbia, 3 App. D. C. 31; Schaefer v. District of Golwnbia, 3 App. D. O. 33; District of Columbia v. Burgdorf, supra; District of Columbia v. Allen, 15 App. D. O. 70; and District of Columbia v. Brooke, 29 App. D. O. 563), quaere, whether the writ will lie to review a quasi judicial proceeding before the head of an executive department of the United States government. (Citing Reaves v. Ainsworth, 28 App. D. C. 157.)</p> <p>3. Assuming, without deciding, that certiorari will lie to review a quasi judicial proceeding before the head of an executive department of the United States government in a proper case, it will not lie on the application of a party to whom the Postmaster General has closed the mails, under secs. 3929 and 4041, U. S. Rev. Stat., U. S. Comp. Stat, 1901, pp. 2686, 2749, after a hearing and upon evidence satisfactory to him that applicant was using the mails to defraud; as he had jurisdiction to entertain the charge and to pass upon the evidence, and the correctness of his determination cannot be reviewed by certiorari.</p> <p>4. Secs. 3929 and 4041, U. S. Rev. Stat. permitting the Postmaster General to refuse the privileges of the mails to persons engaged in their fraudulent use, apply to two classes of cases: Eirst, to schemes for the distribution of money, etc., by lot, chance, or drawing of any kind; and, second, to all schemes or devices for obtaining money or property of any kind by means of false or fraudulent pretenses, representations, or promises.</p>

<p>Hearing on an appeal from a judgment of the Supreme Court of the District of Columbia discharging a rule tO' show cause why the writ of certiorari should not issue to review an order of the Postmaster General and dismissing a petition therefor.</p> <p>The facts are stated in the opinion.</p>

Hearing on an appeal by the plaintiff (specially allowed) from an interlocutory order of the Supreme Court of the District of Columbia overruling his demurrer to a special plea in bar to a declaration to recover damages for alleged personal injuries. The Court in the opinion stated the facts as follows: This is an appeal from a decision of the supreme court of the District of Columbia overruling appellant’s demurrer to a special plea in bar.

Hearing on an appeal by the relator from a judgment of the Supreme Court of the District of Columbia dismissing a petition for the writ of mandamus to compel the members of the Board of Medical Supervisors of the District of Columbia to grant the relator a license to practise medicine and surgery in. the District.

<p>In error to tbe Police Court of the District of Columbia.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>The defendant in error, William B. Kraft, was charged by information in the police court with engaging in a gift enterprise in violation of an act of Congress. He moved to quash the information on the following grounds: First, it does not set forth an offense against any law or regulation; second, so far as the act attempts to prohibit the acts charged, it is unconstitutional.</p> <p>The motion was sustained, and a writ of error applied for by the District of Columbia has been granted.</p> <p>The business in which Kraft was engaged is that of issuing and redeeming what are called “trading stamps,” in the same general manner described in the report of the case of Lansburgh v. District of Columbia, 11 App. D. O. 512, decided December 7th, 1897. Lansburgh, a retail merchant of the District, and Joseph A. Sperry, managing officer of a trading stamp company, a corporation of New York, were jointly charged with engaging in a gift enterprise, in violation of the same statute under which Kraft has been prosecuted. On August 23d, 1871, the then legislative assembly of the District made the following enactment:</p> <p>“The proprietors of gift enterprises shall pay one thousand dollars ($1,000) annually. Every person who shall sell or offer for sale any real estate, or article of merchandise of any description whatever, or any ticket of admission to any exhibition or performance, or other place of amusement, with the promise, expressed or implied, to give or bestow, or in any manner hold out the promise of gift or bestowal of, any article or thing, for and in consideration of the purchase by any person of an article or thing, whether the object shall be for individual gain, or for the benefit of any institution of whatever character, or for any purpose whatever, shall be regarded as a gift enterprise: Provided, that no such proprietor, in consequence of being thus taxed, shall be exempt from paying any other taxes imposed by law, and the license herein required shall be in addition thereto.”</p> <p>After less than two years of experience of license, Congress, on February 17th, 1873, repealed the license clause of the aforesaid enactment, and prohibited the business under a penalty. (17 Stat. at L. 464, chap. 148). Subsequently, said act was embodied in the Revised Statutes of the District of Columbia in secs. 1176 and 1177 thereof. These read as follows:</p> <p>“Sec. 1176. So much of the act of the legislative assembly of the District of Columbia entitled 'An Act Imposing a License, on Trades, Business, and Professions Practised or Carried on in the District of Columbia,’ approved August 23d, 1871, as authorizes gift enterprises therein, and licenses to be issued therefor, is disapproved and repealed, and hereafter it shall be unlawful for any person or persons to engage in said business in any manner, as defined in said act or otherwise.”</p> <p>“Sec. 1177. Every person who shall in any manner engage in any gift enterprise business in the District shall, on conviction thereof in the police court on information filed for and on behalf of the District, pay a fine not exceeding one thousand dollars ($1,000), or be imprisoned in the District jail not less than one nor more than six months, or both, in the discretion of the court.”</p> <p>In Lansburgh, v. District of Columbia, supra, it was held: 1. That this statute was within the police power of Congress, under its exclusive jurisdiction over the District of Columbia. 2. That it was not too broad in its scope of inclusion of prohibited acts to constitute a valid exercise of the power of Congress. 3. That the acts charged constituted engaging in the business of'a gift enterprise, within the meaning of secs. 1176 and 1177, D. O. Rev. Stat. In respect of this last conclusion, it was said (p. 530) : “Without the necessity of declaring that the acts proved in'this case constitute the conduct of a lottery or gift enterprise, as those words are commonly understood, or even of finding that the element of chance operates intentionally and distinctively in the scheme of the trading stamp company, we think, nevertheless, that they come within the prohibition of the statute, which, as before said, furnishes its own definition of ‘gift enterprise.’ Although one of the most shrewdly planned of the many devices to obtain something for nothing, and one entirely novel, it could hardly have come more clearly within the scope of the statute had it been well known and expressly in the contemplation of Congress at the time of the enactment.”</p> <p>The scheme denounced in that case was substantially this: The trading stamp company entered into a contract with a retail dealer in merchandise to print in the directory of their subscribers’ book the name, business, and address of the merchant; to distribute 100,000 copies of said book to the people of Washington, ■ and to explain the use of the same; the merchant to take from the company sufficient stamps to supply all demands. for the same, to issue one to the purchaser for each 10 cents’ worth purchased, and to display the sign, “We give trading stamps,” in a conspicuous place in his store. The merchant was to pay $5 per thousand for said stamps.</p> <p>Purchasers receiving stamps from the merchant were required to paste the same in places provided in said books. When 990 stamps had been received and entered in a book, the trading stamp company obligated itself to exchange therefor any one of a great variety of articles kept by it on exhibition in a store for the purpose. No articles were kept for sale, but only for exchange for tickets when presented in the manner and to the number aforesaid. No stamps were redeemed in cash, or in quantity less than 990.</p> <p>The first contention of Kraft is that his business is different from that described above, by reason of which differences he is not within the inclusion of the decision in that case.</p> <p>The differences alleged are these: (1) Kraft’s company is a co-operative association; (2) stamps are redeemable at the option of the purchasing member of the association, in cash at the rate of 10 cents for five; five bringing 1 cent.</p> <p>The agreed statement of facts shows that David Rothschild, Wallace J. Hill, and William B. Kraft obtained a charter in the State of Virginia, under the name of the Economy Co-operative Society, authorizing them to engage in said business. The authorized capital stock was $10,000, divided into 100 shares. The incorporators were named as directors for the first year, and Rothschild was made president, Hill, vice president, and Kraft, secretary and treasurer. These and one Berliner are the only stockholders of the corporation.</p> <p>The so-called co-operative feature was provided for in the by-laws of the corporation. A co-operative society was to be organized, the corporation officers to be officers thereof. Any person may become a member by paying annually in advance a fee of 25 cents. Members are entitled to receive a discount of a certain per cent on all cash purchases from merchants under contract with the corporation to purchase and distribute the discount vouchers. Members are entitled to exchange discount vouchers (stamps) for merchandise displayed at the corporation office on the basis of the actual cost price of such merchandise to the corporation. Membership fees shall be kept separate from other income of the corpoi*ation, and, on the first Monday of January of each year, a dividend shall be declared and paid to members from any surplus thereof that may remain after payment of expenses necessarily incidental .to the procurement of new members “and nothing more.” No part of the salaries of officers to be charged to this fund. The fund is to be charged only with commissions paid to agents for procuring new members. Members have no right to dividends received from the sale of vouchers (stamps) to merchants. These go to the stockholders of the corporation only.</p> <p>The contracting merchants receive the stamps or vouchers from the corporation at the rate of $3.50 per thousand. These are to be issued to members making purchases, who are required to produce their membership cards when demanded. Members only can have the stamps' redeemed. One stamp is to be given with each 10 cent purchase. Members are entitled to purchase the displayed articles with their stamps, or to have them redeemed in eash at the office of the corporation “in any quantity from five upward, in actual cash, and at their face value, viz., 2 mills each.” As regards the issue of stamp books, directories of contracting merchants, etc., the scheme is of the same general character as that described in the Lansburgh Case. The statement of facts further shows that the corporation has been engaged in business since July 10th, 1908. Between that date and October 1, 1909, — 8,095,000 discount vouchers, or stamps, have been sold to merchants at $3.50 per thousand. 344,000 have been redeemed in cash, and 5,372,000 in exchange for articles of merchandise on display at the corporation’s office. Counsel for Kraft stated on the argument that the charter and by-laws of the corporation had been written “with pen in one hand and the Lansburgh decision in the other,” so as to bring the scheme within lines declared therein not to be prohibited by the statute. The part of the opinion referred to reads as follows: “We do not feel called upon at this time to undertake a specification of the particular conditions in which the act under consideration might or might not apply to actual merchants in the ordinary course and practice of competitive business, or to determine just what character of inducements by way of gift or premium may and may not be held out to purchasers at the time, and as a part of their purchases. That it was not intended to apply to ordinary discounts for cash or in proportion to amounts of purchases, when made by the merchant himself to his customers, may be regarded as certain, and the exercise of such power would doubtless be denied if expressly attempted. Nor can it with reason be said to apply to bona fide co-operative associations and the like. It is possible, also, that it might not be operative in a case where the sale of a lawful article is accompanied by a gift of something specific and certain, not attended with any element of chance, and where the gift is not the real object of the sale, in an attempt to evade acts regrdating or prohibiting a particular traffic, as, for example, in the case of Lauer v. District of Columbia, 11 App. D. C. 453.”</p>

<p>Gift Enterprises ; Criminal Law.</p> <p>A trading stamp company which sells its stamps to merchants, whose names it prints in its directory of merchants, for $3.50 for 1,000, which stamps the merchants deliver to their customers, who have the right to redeem them of the company in articles of merchandise only when presented in'books containing 990 stamps, and also to redeem a single stamp for a pen, and ten or more for cash at the rate of $1 per 1,000, violates sees. 1176 and 1177, District of Columbia, Rev. Stat., making it a criminal offense to engage in the business of conducting a gift enterprise as defined in the act of the late legislative assembly of this District of August 23, 1871. Mr. Justice Van Orsdel dissenting. (Following Lansburgh v. District of Columbia, 11 App. D. O. 512, and District of Columbia v. Kraft, ante, 253.)</p>

Hearing on an appeal by tbe defendants from a judgment of the Supreme Court of the District of Columbia, for want of. a sufficient affidavit of defense in an action on a bond.

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

<p>Taxation; Certificate of Taxes; Reassessment.</p> <p>1. Where a tax certificate issued to a property owner by the’ tax assessor of this District fails to show an assessment against the property which stands upon the tax records, it is a bar to any action by the District for the recovery of the tax so assessed (27 Stat. at L. 37, chap. 74) ; but where it shows the cancelation of a special improvement tax previously assessed, and the property owner relies upon the cancelation to preclude a 'reassessment for the same special improvement, it does not operate as a bar to the recovery of the tax when so reassessed.</p> <p>2. Where city lots fronting on two streets are assessed for a water main laid in one of the streets, but before the tax is paid the assessment is canceled, and subsequently the lots are reassessed for the water main laid in the other street, in a sum not greater than the first assessment, such reassessment is valid, and it is immaterial if the water main in the latter street is not large enough to supply the lots with sufficient water to meet their requirements, as they can be supplied from the water main in the other street, and it is the duty of the municipality to supply the needs of the property after it has contributed its share to the installing of the water system. (Construing act of the late legislative assembly of this District, of June 23, 1873, Abert & L. Comp. Stat. 548, and referring to District of Columbia v. Burgdorf, 6 App. D. C. 465.)</p>

<p>Appeal and Error; Husband and Wife; Divorce.</p> <p>It will be assumed that the court below in making an order overruling a motion by the husband in a divorce suit,, supported by affidavits, to award him the custody of children, — the custody of whom had previously .been awarded to the wife in a decree dismissing her bill, — and to vacate an order of allowance to her for their support, considered not only the affidavits, but the entire record in the divorce proceedings, and where, on an appeal by the husband from the order denying his motion, the pleadings and testimony in the proceeding are omitted from the transcript on appeal, the order will be affirmed. (Following Lesh v. Lesh, 21 App. D. C. 475.)</p>

Hearing on an appeal by tbe plaintiffs from an order of the Supreme Court of the District of Columbia quashing a writ of attachment before judgment, and after the trial by jury, of the issue made by the defendant’s traverse of plaintiff’s affidavit in support of the writ. • 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'upon a policy of insurance. The Court in the opinion stated the facts as follows: This action was begun in the justice’s court by Pamelia Elzie to recover the sum of $50. What was the result in that court does not appear.

<p>Hearing on a petition for the writ of supersedeas to the Supreme Court of the District of Columbia.</p>

Hearing on an appeal by the respondent, the marshal of the United States for the District of Columbia, from an order sustaining a demurrer to his return to a petition for the writ of habeas corpus, and, the respondent refusing to plead over, discharging the petitioner from the custody of the respondent.

Hearing on an appeal by the plaintiff from a decree of the Supreme Court of the District of Columbia, sustaining a demurrer to and dismissing a bill in equity for an injunction to restrain the defendant from making and enforcing ordinances relating to the plaintiff’s business, and for other relief. The facts are stated in the opinion.

Hearing on an appeal (specially allowed) by tbe defendant from an order of tbe Supreme Court of tbe District of Columbia, sustaining a demurrer to pleas of tbe defendant to a declaration to recover damages for tbe death of the plaintiff’s intestate, and overruling tbe defendant’s demurrers to tbe plaintiff’s replication, . Tbe facts are stated in tbe opinion. 1. Appellee, as administrator, has no right to maintain this action. D. O. Code, secs. 1301, 1303.

<p>Statutes; Repeal; 'Food Adulteration.</p> <p>1. While repeals by implication are not favored, where there is a clear repugnancy between the later and the earlier statute, they cannot stand together. (Following Weigand v. District of Columbia, 22 App: D. C. 559.)</p> <p>2. Sec. 7.of.the general act. of Congress of June 30, 1906 (34 Stat. at L. 768, chap. 3915, U. S. Comp. Stat. Supp. 1909, p. 1187), defining when an article of food shall' be deemed to be adulterated within the meaning of the act, supersedes and repeals sec. 3 of the local act of Congress of February 17, 1898 (30 Stat. at L. 246, chap. 25), covering the same subject; and the appropriation in the District of Columbia appropriation act of May 18, 1910, to enforce the act of February 17, 1898, merely indicates the intention of Congress to repeal that act only to the extent that it was repugnant to the later act.</p>

<p>Municipal Corpobations; District op Columbia; Municipal Bun,dings; Contracts; Actions.</p> <p>I. The provision of the act of Congress of June 11, 1878 (20 Stat. at L. 102, chap. 180), creating the present form of government of the District of Columbia, limiting the power of the commissioners to make contracts binding the District to contracts involving $100 and under, unless such contracts are reduced to writing and recorded in a book kept for that purpose and signed by all of the commissioners, does not apply to a contract relating to a municipal matter, authorized by subsequent act of Congress to be made by a special agency created for the purpose. (Distinguishing United States em rel. Daly v. Maefarland, 28 App. D. C. 552.)</p> <p>2. A contract with a building contractor made by the Secretary of the Treasury and the District commissioners, as a municipal commission, under the act of Congress of June 6, 1902 (32 Stat. at L. 321, chap. 1036), as amended by act of March 3, 1903 (32 Stat. at L. 1206, chap. 1011), authorizing the Secretary to purchase land to be owned by the District, and the Secretary and the commissioners, acting jointly, to contract for the erection thereon of a municipal building, to be constructed under the supervision of an officer of the Federal government, to be appointed by the President, one half of the cost of the land and building, not to exceed $2,000,000, to be paid out of the revenues of the District, and the other half by the United States, — is binding upon the District as a municipality; and the District is liable in damages to the contractor, if it commits a breach of the contract by failing to furnish him with stone for the building as required by the contract within the time stipulated in it, even though the recovery of such damages may make the cost of the land and building exceed the sum appropriated. (Distinguishing McQraw v. District of Columbia, 3 App. D. C. 405, 25 L.R.A. 691.)</p> <p>3. When a municipal corporation has been held liable for damages resulting from the negligence or breach of contract by a third party, it has a remedy over against such party, unless it has concurred in the wrong, whether he has been notified to appear and defend, or not.</p>

The Court in the opinion stated the facts as follows: This is a writ of error to the police court of the District, of Columbia, and brings into review the regulation of the commissioners of the District, dated July 23d, 1908, as amended August 7th, 1908, requiring every person who commonly launders for pay, on the premises occupied by him or her, elotuing or sheets, pillowcases,, tablecloths, and other similar articles belonging to another person, to report that fact to the…

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

<p>Patents; Interference; Diligence.</p> <p>1. Whether the making of a model of a snap hook, so constructed that it may be attached to a chain without the necessity of welding the chain, constitutes reduction to practice, in view of the simplicity of the device (citing O’Connell v. Schmidt, 27 App. D. C. 77, and Burson v. Vogel, 29 App. D. C. 388), the invention is so simple that the construction of a model containing all the elements of the invention, will amount to a demonstration of utility.</p> <p>2. The party to an interference involving the invention of a snap hook of simple construction, who was the first to conceive, and who did not know, when he filed his application, that the other party liad entered the field, is not lacking in diligence, where he made a model demonstrating the utility of the invention, immediately had castings made for patterns, and, five months afterwards, made his first shipment, which, four months afterwards, was followed by the filing of his application, and where part of the time following the making of the eastings he was away from home, and at other times only delayed the exploitation of the invention because of press of other work, and there is nothing to show any want of good faith on his part.</p>

<p>Trademarks.</p> <p>While the word “Navy” would not be registerable as a trademark for use on goods which are manufactured especially for use by the Navy, as it would be descriptive, it is not descriptive as applied to candy, as candy, although used to a limited extent in the Navy and included in its supplies, is not an essential part of such supplies* Nor is the registration of the word, as so applied, against public policy, as it does not refer to the United States Navy specifically, and its proposed use does not suggest that the government has given its approval to the goods to which it is applied.</p>

<p>Trademarks; Former Adjudication.</p> <p>Registration of the words “Black Caps,” to be used on medicine labels, under the ten-year clause of the trademark aet of Congress of February 20, 1905, is properly refused on the application of the assignee of the appellee in Planten v. Canton Pharmacy Co. 33 App. D. C. 268, in which case this court found that the words were understood in the trade as equivalent to “Black Capsules,” and therefore to be descriptive.</p>

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

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

<p>Appeal and Erbob.</p> <p>Where, upon the reversal by this court of a decree of the lower court, dismissing a bill to vacate as fraudulent an assignment of a claim against a decedent’s estate, a decree was entered in conformity with this court’s mandate, from which decree the defendant appealed, a motion to dismiss the appeal was overruled, on the ground that, although he might have appealed to the Supreme Court of the United States from the first decree of this court, he had the option of waiting until a decree was entered below on the mandate, and then taking an appeal as a necessary step towards an appeal to the Supreme Court; and the decree below was affirmed.</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 favor of an intervening claimant in an attachment proceeding. The Court in the opinion stated the facts as follows: This cause came here on appeal from the judgment of the supreme court of the District of Columbia in an attachment proceeding.

Hearing on cross appeals by the complainant and the defendants from a decree of the Supreme Court of the District of Columbia, in a suit in equity by a corporation to recover secret profits made by its promoters and organizers in the sale by them of land to the corporation. The Court in the opinion stated the facts as follows: These are cross appeals from a decree of the supreme court of the District of Columbia.

<p>Master and Servant; Railroads; Negligence; Trial; Instructions to Jury.</p> <p>1. In an action against a railroad company by an engine cleaner employed for a month by the company in its roundhouse, to recover for personal injuries caused by the collapse of a part of the roundhouse during a storm, it is a question for the jury, whether the plaintiff knew, or was chargeable with knowledge, of the defective condition of the structure, which is admitted by the defendant, and assumed the risk incident to his employment therein, where the foreman of the defendant, who had been employed in. the building for several years, and other of the defendant’s witnesses, testify that there was no apparent defect in it; and there is no testimony to show that the plaintiff had actual knowledge of certain defects which the evidence shows to have existed, and the evidence is conflicting as to whether the storm was an unusual one.</p> <p>2. It is not error for the trial court to refuse a special instruction asked, where it substantially complies with the request in another instruction which correctly states the law.</p> <p>3. Refusal by the trial court in a personal injury case, to grant an instruction asked by the defendant, to the effect that the mere fact the plaintiff was injured does not entitle him to a verdict, and creates no presumption of negligence on the part of the defendant, is not error, where the court charges the jury that, to find for the plaintiff, they must affirmatively find negligence on the part of the defendant, which was the proximate cause of plaintiff’s injury.</p>

<p>Pleading; Appeal and Erbob; Bill of Exceptions; Vebdict; Reformation of; Interest.</p> <p>1. Partial payment may be proved under a plea of the general issue.</p> <p>2. In the absence of a bill of exceptions from the record on appeal in an action at law, the appellate court will assume that the verdict was in accordance with the evidence.</p> <p>3. A memorandum by the trial court contained in the record on appeal, showing why he granted a motion to enter a judgment on a verdict contrary to the finding of the jury, is not the equivalent of a bill of exceptions.</p> <p>3. Where, in an action on promissory notes, in which the defendant has filed pleas of the general issue and the statute of limitations, the jury returns a verdict for the amount of the notes, without interest, although the notes bear interest, the trial court has no right to reform the verdict so as to include interest, and direct the entry of a judgment on the verdict as reformed. (Construing D. C. Code, sec. 1184 [31 Stat. at L. 1378, chap. 854], providing that, in an action to recover a liquidated debt bearing interest, judgment for the plaintiff shall include interest.)</p>

Hearing on an appeal by the relator from a judgment of the Supreme Court overruling his demurrer to a return to a rule to show cause, issued on his petition for the writ of mandamus to compel the Secretary, of the Interior to permit him to make a soldier’s additional entry of public land, and as the relator elected to stand on his demurrer, discharging the rule and dismissing the petition.

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 the declaration in which contained a count in deceit and a count based upon an alleged breach of contract. The Court in the opinion stated the facts as follows: This is an appeal from a judgment of the supreme court • of the District of Columbia upon a directed verdict for the defendant, the F. H. Smith Company, appellee here.

<p>Patents;, Interference; Specifications and Claims; Amendments; Anticipation; Foreign Patents.</p> <p>1. In an interference involving an invention relating to a block system for electric railways, where both parties relied on earlier applications to show constructive reduction to practice, it was held that an amendment by the junior party, antedating the senior party’s earliest application, disclosed the invention of the issue, and' that a statement in such amendment, claimed by the senior party to limit the invention described in the application which it amended, did not have that effect. 2. Young v. Strubl'e, 34 App. D. C. 218, applied and followed.</p> <p>3. Prior applications of one of the parties to an interference, which are found to have disclosed the invention of the issue, cannot be said to have been anticipated by British patents granted him for the same invention described in such applications, where the applications in interference were filed within two years after the grant of the British patent. (Construing sec. 4886, Eev. Stat., U. S. Comp. Stat. 1901, p. 3382.)</p> <p>4. Where amendments are made to an application before another party has entered the field, the rule prohibiting the insertion of new matter by amendment will not be applied as strictly as where it is sought to enlarge the scope of an application to the prejudice of inventors whose rights have accrued between the date of filing and the date of amendment.</p>

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

<p>Patents; Interference; Constructive Reduction to Practice; Foreign Inventors; Foreign Laws.</p> <p>1. The theory underlying the doctrine of constructive reduction to practice is that the filing of a proper application constitutes a sufficient disclosure to enable one skilled in the art to practise the invention.</p> <p>2: A foreign inventor is entitled to the filing date of an abandoned application in his own country as the date of his constructive reduction to practice, where an application subsequently filed by him here for the same invention is placed in interference. (Construing par. 2, sec. 4887, Rev. Stat., as amended by U. S. Comp. Stat. Supp. 1909, p. 1271.)</p> <p>3. A finding by the Commissioner of Patents in an interference case that the Interior Department was duly advised that Germany had adhered to the international convention, to take effect May 1, 1903, is a sufficient showing that subsequent to that date Germany was affording citizens of the United States applying for patents there the privileges accorded citizens of foreign countries applying for patents here, under par. 2, s.ec. 4887, U. S. Rev. Stat.</p> <p>4. A finding by the Patent Office in an interference case, that the filing in Germany of an application for a patent in behalf of the inventor, but not in his name, is in accordance with German law, is supported by the uncontradieted testimony of the party in whose name the application was filed, that he was a member of a syndicate having title to the invention, and was authorized to file the application; that the inventor was the syndicate’s head engineer, and it was usual “to apply for all patents for inventions made by the engineers of our syndicate, in all countries, in my name, provided the law did not require the inventor himself to make the application,” especially where the German application shows that the applicant was not required to state that he was the inventor.</p>

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

<p>Appeal and Error; Trial; Mandamus.</p> <p>1. The improper admission of evidence in a trial by the court without a jury does not of itself constitute reversible error, as the improperly admitted evidence will be rejected by the appellate court, and the case decided as if it were not in the record.</p> <p>2. Impossibility of performance cannot be pleaded in defense of mandamus, where such performance was rendered impossible by the defendant’s own act.</p> <p>3. Where, pending a proceeding for mandamus against the Secretary of the Interior, to compel him to issue a patent for public lands to the relator, the Secretary issued a patent for the land to a third person, and then pleaded its issuance in a supplemental answer to the petition for the writ, and the trial court, on the hearing, which resulted in the dismissal of tbe petition, admitted in evidence the patent so issued, and excluded the relator’s evidence on the issues made by the petition and the original answer, the judgment of the trial court will not be reversed, although its action in admitting the patent in evidence and in excluding the relator’s evidence was erroneous, if the judgment appealed from can be sustained on the ground that the Secretary acted within his jurisdiction in refusing to deliver a patent to the relator, as prayed for in the petition.</p> <p>4. While, after the right to a patent for Indian lands, under the act of Congress of July 1, 1902 (32 Stat. at L. 716, chap. 1375), has become complete, the execution and delivery of the same are but mere ministerial acts of the officers charged with that duty, there is a jurisdiction in them to refuse to issue the patent if an allotment certificate has not been issued and delivered.</p> <p>5. Where the Secretary of the Interior in an allotment contest over Indian lands under the act of Congress of July 1, 1902 (32 Stat. at L. 716, chap. 1375), rendered a decision permitting one of the parties, an infant, to withdraw from the contest on the- payment to her by the other party of a certain sum of money, and caused a deed of the land involved to be prepared for delivery to the latter party, but thereafter, within the thirty days allowed for rehearings under the rules of practice of the Interior Department and before an allotment certificate had been issued, vacated his decision on representations that the settlement of the matter had not been for the best interests of the infant, and ordered a hearing of the contest on its merits, mandamus will not lie .at the instance of the party to whom the deed was to be given, to compel the Secretary to deliver it to him, as the Secretary acted within his lawful jurisdiction.</p> <p>6. The filing of a supplemental answer to a petition for the writ of mandamus does not operate as an abandonment by the respondent. of every contention in the case except the ones sought to be put in issue by such answer.</p>

<p>'Adverse Possession; Municipal Corporations.</p> <p>1. Occupation by the grantee in a deed, although by mistake, of land beyond the boundaries called for by his deed, vests in him an indefeasible title, if his possession has been actual, exclusive, open, notorious, and adverse for the statutory period. (Following Johnson v. Thomas, 23 App. D. C.. 150.)</p> <p>2. The District of Columbia acquires no title to land the title of which is vested in an occupant by adverse possession by the attempted dedication of the land as a public street by the holder of the record title. (Distinguishing District of Columbia v. Krause, 11 App. D. C. 398.)</p>

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

Hearing on an appeal by two of four persons indicted and tried for conspiracy under U. S. Kev. Stat. sec. 5440, from a judgment of conviction of tbe Supreme Court of the District of Columbia.

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

<p>Stbeet Railroads; Appeal and Error; Judicial Notice; Custom and Usage; Negligence; Instructions to Jury.</p> <p>1. Where, in a personal-injury ease, the evidence was conflicting as to whether the plaintiff remained on the platform of defendant’s street railway car from the time he boarded the car until he was thrown off when the car rounded a curve, as claimed by the defendant, or whether, as the plaintiff claimed, he left his seat and went on the platform just before the car reached the curve, with the intention of alighting from the ear shortly thereafter, and there was a verdict for the defendant, it will be assumed on an appeal by the plaintiff that the jury found the fact to be as claimed by the defendant.</p> <p>2. The court will take judicial notice of the custom of a street railway company not only to permit passengers to ride upon the platforms of its cars, but to permit its cars to become so crowded as to compel passengers to ride on the platforms. (Following Capital Traction Co. v. Brown, 29 App. D. C. 473, 12 L.R.A.(N.S.) 831, 10 A. & E. Ann. Cas. 813.)</p> <p>3. A street railway company cannot create and permit a custom of hauling passengers on the platforms of its cars, and escape liability for accidents occurring through the operation of its cars with relation to such passengers; nor- can it escape liability for such accidents by posting a notice on the cars that it is dangerous to ride on the platforms. (Following Capital Traction Co. v. Brown, supra.</p> <p>4. No presumption of negligence arises from the use by a passenger of the platform of a street railway ear, even though there are seats to be had inside, so long as such use is not forbidden by a rule kept in active operation.</p> <p>5. In a personal-injury action against a street railway company which permitted passengers to ride on the platforms of its cars, but in the cars of which were posted notices that it was dangerous to do so, by a passenger who, while riding on the platform of a car, was thrown therefrom as the car rounded a curve, while going at what was claimed to be an unusual speed, it is error for the trial court to instruct the jury that if they find there was a seat inside the car which the plaintiff might have occupied, the duty of the defendant to the plaintiff was performed if it ran its car around the curve at a rate of speed which was safe to seated passengers. It is a question for the jury, under such circumstances, whether the car was being run in the usual and customary manner. If so, the plaintiff assumed the risk of riding on the platform. (Citing Sullivan v. Capital Traction Co. 34 App. D. C. 358, and distinguishing Capital Traction Co. v. Brown, supra.)</p> <p>6. A special instruction to the jury is not to be considered as having been impliedly approved by the court for future eases, where this court, on appeal by the party at -whose instance the instruction was granted, and to whom it was highly favorable, affirmed the judgment in the case in which the instruction was given. (Citing Capital Traction Co. v. Brown, supra.)</p>

Hearing on an appeal by the accused from a judgment of conviction of the Supreme Court of the District of Columbia in a prosecution for forgery. The Court in the opinion stated the facts as follows: This is an appeal from a judgment of the supreme court of the District of Columbia in a criminal case. The appellant, Perri W. Frisby, defendant below, was indicted for the forgery of a certain paper writing in the form of an agreement, which was set forth in the indictment.

Hearing on an appeal by the relator from a judgment of the Supreme Court of the District of Columbia, discharging a rule to show cause why the writ of mandamus should not issue, and dismissing a petition therefor.

Hearing on an appeal by tbe relator from an order of the Supreme Court of the District of Columbia dismissing a petition for the writ of mandamus. The facts are stated in the opinion.

Hearing on an appeal by the defendant (specially allowed) from an order of the Supreme Court of the District of Columbia overruling a motion to vacate the service of summons upon a foreign corporation.. The Court in the opinion stated the facts as follows: This is a special • appeal from an order denying a motion to vacate the service of summons upon a foreign corporation.

Hearing on an appeal by the caveator from a judgment of the Supreme Court of the District of Columbia admitting a will to probate after the trial of issues framed to test its validity. The Court in the opinion stated-the facts as follows: This is a will case, and comes here from a judgment of the supreme court of the District of Columbia sustaining the will.

Hearing on an appeal by the relator from a judgment of the Supreme Court of. the District. of Columbia overruling a demurrer to the answer to a petition for the writ of mandamus, and, the petitioner electing to stand upon his demurrer, dismissing the petition.

<p>Appeal and Error; Criminal Law; Evidence; Confessions; Larceny; Stare Decisis ; Courts.</p> <p>1. Where in a criminal prosecution for larceny from a railroad company, a corporation, the question was not raised in the lower court whether the- accused could be legally convicted in the absence of proof by the prosecution of the incorporation of the company, that question will not be considered on an appeal by the accused from a judgment of conviction.</p> <p>2. A confession by one charged' with the commission of a crime will not be held to have been involuntary merely' because the accused was under arrest in a police station, surrounded by officers, when he made it. (Distinguishing Davis v. United States, 18 App. D. C. 468.)</p> <p>3. An indictment for larceny will not lie in this' District against one who stole goods in a State and brought them here. (Citing Davis v. United States, supra.)</p> <p>4. This court is not bound by a decision of the former circuit court of the District of Columbia, if convinced of its unsoundness in principle, and if it did not establish a rule of property.</p> <p>5. The courts of one country will not execute the penal laws of another; and this rule applies to the several States in their relations with each other and to the United States.</p>

<p>Eminent Domain; Notice of Publication; Assessment of Damages and Benefits; Constitutional Law.</p> <p>1. The legal requirements of a notice by publication in a proceeding under the act of Congress of June 21, 1906 (34 Stat. at L. 384, chap 3505), to condemn land for street improvements, is to be determined by see. 1608 of D. C. Code (33 Stat. at L. 733, chap. 734), and a clerical error in such a notice will not invalidate the proceeding, where the notice warns all persons having any interest in the proceeding to appear by a day certain, and specifically refers to the statute under which the proceeding is instituted.</p> <p>2. Sec. 1608j. D. C. Code,, providing that in the condemnation of land for alley and minor street improvements, the jury shall assess damages equal to the benefits, including the expenses of the proceeding, is constitutional.</p>

Hearing on an appeal by the plaintiffs from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action of ejectment.

Hearing on an appeal by tbe defendants from, a decree of tbe Supreme Court of the District of Columbia sitting as a court of equity, reforming a deed. The Court in the opinion stated the facts as follows: This is an appeal from a decree ordering the correction of a deed.

<p>Hearing on an appeal by tbe petitioner from an order of tbe Supreme Court of the District of Columbia dismissing a petition for the writ of certiorari to vacate an assessment of taxes.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal and Ebror; Street Railways; Negligence.</p> <p>1. A judgment in a personal injury action will not be reversed because a special instruction granted on behalf of the plaintiff was not sufficiently specific, where the eharge to the jury supplemented and made plain the point mentioned in the instruction.</p> <p>2. It is a question for the jury whether it was the duty of the conductor of a street railway ear, upon his stopping the car at a street corner to enable a passenger, a woman, to alight, to warn her of an excavacation near the track at that point, made in the course of the repair of the street, if under the circumstances he was not justified in assuming she had observed or would observe it; and it is immaterial whether the excavation was made by the municipality or the railway company.</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 to recover damages for personal injuries. .

Hearing on an appeal by certain interveners in an equity suit from a decree of the Supreme Court of the District of Columbia affirming a report of the auditor distributing assets in the hands of receivers. The Court in the opinion stated the facts as follows: The original bill in this case ivas filed by the appellee, Edward II.

<p>Appeal and Error; Bills of Exceptions; Trial; Estoppel; Master and Servant; Objections and Exceptions; Pleading; Nemgence.</p> <p>1. In view of the disregard by counsel of rule 5 of this court relating to the preparation of bills of exceptions, the court will hereafter take action upon its own motion in such cases. If counsel cannot agree upon a proper bill of exceptions, it is the duty of the lower court to adjust their differences, and settle the bill in conformity ■with the rules of this court.</p> <p>2. Where in a trial of an action at law the question is whether a given person was or was not a servant of the defendant, and there is no conflict of evidence upon the facts, the question is one of law for the court and not of fact for the jury.</p> <p>3.'Where a contractor for the erection of an office building, in contracting with a subcontractor to do the painting, agreed that the latter should have the use of the elevator in painting the elevator shaft, the contractor is estopped to say that he. did not have authority to agree to such use of the elevator.</p> <p>4. An elevator operator is the servant of a contractor for the erection of an office building, and the contractor is liable for his negligent operation of the elevator, whereby a painter employed by a subcontractor is injuréd while painting the elevator shaft, where the contractor agreed to furnish the subcontractor elevator, power, and operator for use in painting the shaft, when they were not otherwise in use, and where the subcontractor was to have no control over the elevator except the right to signal the operator when to start and stop the machine; and it is immaterial whether the amount paid by the subcontractor for such privilege was to be ultimately credited • ' to the owner of the building, or not. (Following Sonnemann v. Philadelphia, B. <£- W. B. Go. ante, 279),</p> <p>5.. An objection to a declaration on the ground that it contains no proper allegation of negligence cannot be based on a motion to direct a . verdict for the defendant, unless the motion points out such alleged defect. The trial court has no reason to assume that such a motion is based upon grounds other than those brought to its attention.</p> <p>6. A declaration in a personal injury case examined and held to sufficiently allege a breach of duty on the part of the defendant.</p> <p>7. What is a reasonable precaution under some circumstances may constitute negligence under other circumstances, and it is proper for the trial court to amend a special instruction to the effect that the plaintiff cannot recover if he placed himself in a dangerous position when he might have placed himself in a safe position, by directing attention to that fact.</p>