Volume 36 — Appeals, District of Columbia

<p>Hearing on an appeal by the defendants from a decree of the Supreme Court of the District of Columbia sitting as an equity court in a suit to terminate a trust created by a will.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This cause comes here on appeal from a decree of the supreme court of the District of Columbia in an action to terminate a trust created in the last will and testament, and a codicil thereto, of one Anna Smith Mallett, deceased. The material provisions of the will and codicil are as follows:</p> <p>“3. I give, bequeath, and devise to Jean Louisa, Anna Gertrude, and Eobert Philo Shelton, being the children of' my cousin John Consider Shelton, deceased, all of Bridgeport, Connecticut: the sum of seventy-five thousand dollars, being twenty-five thousand to each.”</p> <p>“10. I give, bequeath, and devise all the rest, residue, and remainder of my estate, real and personal, wheresoever and whatsoever, of which I may die possessed, to the aforesaid Jean Louisa, Anna Gertrude, .and E. Philo Shelton.”</p> <p>Codicil: “In addition to Frank B. King, whom I have appointed executor of this, my last will and testament, I wish to appoint Wm. TI. Saunders, of the firm of Wm. H. Saunders & Co., 1407 F. Street, Northwest, and George W. White, Paying Teller of the National Metropolitan Bank, cotrustees with the' said F. B. King, — to hold in trust the legacies devised to Jean Louisa, Anna Gertrude, and Eobert Philo Shelton, — said trusreeship to terminate when these legatees shall receive their portions of my estate.</p> <p>“Aud it is my further will that these legacies to the said Jean Louisa. Anna Gertrude, and Eobert Philo Shelton, shall be paid in full when the said Eobert Philo Shelton shall reach the age of twenty-five years.”</p> <p>It will be observed that these instruments, read together, provide that the appellants, as trustees, shall hold the legacies of each of the appellees until Eobert Philo Shelton, the youngest, shall attain the age of twenty-five years. It appears from the-bill that Eobert Philo Shelton was born January 12, 1896, and that only one of the appellees, Jean Louisa Shelton, is of age. One Mary L. Fairchild appears in the capacity of guardian for the two minor children. The trust, by the terms of the will,, has about ten and one-half years yet to run, at which time the eldest of the legatees, Jean Louisa Shelton, will be about thirty-live years old.</p> <p>The case came before the court below upon demurrer to the complaint. On hearing the court overruled the demurrer, and, the appellants electing to stand on the demurrer, the coui’t entered the following decree:</p> <p>“1st. That so much of the codicil of June 23, 1901, to the will of Anna Smith Mallett as postpones the payment of the legacies to the complainants severally until Robert Philo Shelton shall reach the age of twenty-five years is null and void, and it appearing that the complainant, Jean Louisa Shelton, has reached the age of twenty-two years, and is entitled to have paid over to her the bequests to her under said last will, it is, therefore, further ordered that Frank B. King, executor under the last will and testament of Anna Smith Mallett, deceased, be, and he is hereby, directed to forthwith pay over to the said Jean Louisa Shelton, or to her solicitors of record, one third part of the distributable assets of said estate now in the hands of said Frank B. King, exerator, in money, or if not in money, then in securities at their market value. And it is further ordered that said Frank B. King, as executor, turn over to the trustees in said codicil mentioned the remaining two thirds of the distributable assets of said estate, to be by them held in trust until such time as Anna Gertrude Shelton and Robert Philo Shelton shall respectively arrive at the age of twenty-one years, and upon the said Anna reaching the age of twenty-one years to pay over to her her interest in said estate, and upon the arrival of the said Robert at the age of twenty-one years to pay over to him his part of said estate.</p> <p>“And it is further ordered that the said trustees shall, from time to time, invest and reinvest, under order of this court, the legacies belonging to the said infants, the income from which shall be paid to the guardian of said infants at such time and in such amounts as this court, sitting as a probate court, may hereafter order.”</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 upon a policy of life insurance.

Hearing on an appeal by the respondent the acting Commissioner of Patents from a judgment of the Supreme Court of the, District of Columbia, directing the issuance of the writ of certiorari. Reversed.

<p>Evidence; Equity> Amendment; Deeds; Undue Influence; Fraud; Presumptions.</p> <p>1. While the testimony of physicians as to the mental incompetency of the grantor in a deed attacked by an heir at law of the grantor as having been procured by the exercise of undue influence may be relevant as showing a condition of mind of the grantor rendering the grantor susceptible of being influenced, if there is any evidence tending to support the charge of undue influence, it is irrevelant and immaterial in the absence of any such evidence.</p> <p>2. After the submission to the court below of the evidence in a suit in equity to set aside a deed as having been procured by the exercise of undue influence upon the grantor, it is proper for the court to refuse to allow the complainant to amend the bill of complaint so as to charge mental incapacity and so make it conform to the evi- - dence, as such an amendment would make a new case.</p> <p>3. It is not sufficient to support a charge that the execution of an instrument was procured by fraud, that the circumstances surrounding ' its execution were suspicious. The whole case must be strong enough to establish fraud. (Following McDaniel v. Parish, 4 App. D. C. 213.)</p> <p>4. In a suit by a grandson and one of the heirs at law of a deceased grant- or to set aside a deed in trust of real estate, made by a woman eighty-three years of age, to the defendants, to be sold and the proceeds paid to a missionary society, to be used by it in the erection of a memorial building to the grantor and her deceased husband, as having been procured by undue influence, the fact that the defendants, the grantees in and trustees under the deed were members of the same missionary society, does not show that such a confidential or fiduciary relation existed between them and the grantor as will raise the presumption that they exercised undue influence upon her; nor can such disposition of the property be properly said to have been an unnatural one, where it appears, among other things, that the property had been purchased with a portion of money received from the estate of the grantor’s deceased husband, who was, as she was, an active worker in missionary matters, and that since his death she had been living in this city, while her son and grandsons had been living in New York, and were in comfortable circumstances.</p>

<p>Hearing on. an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, in an action for libel, a demurrer of the plaintiff to a plea to the declaration having been overruled, and the plaintiff having elected to stand upon her demurrer.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is a suit brought by appellant, Mary E. Nalle,* in the supreme court of the District of Columbia, for the recovery of damages arising from the alleged publication of a libel by the appellees, James E. Oyster, William V. Cox, Mary C. Terrell, Justina 31. Hill, Ellen S. Mussey, and Barton W. Evermann. The action arises out of a former suit in the supreme court of the District, in which the appellant brought an action for a writ of mandamus to require the appellees, as the school board of the .District of Columbia, to reinstate her as a schoolteacher in the public schools. Eor convenience, the appellant and appellees, will be referred to as plaintiff and defendants in the relation they sustained in the present action, as well as in the former, in the court below.</p> <p>The amended declaration filed in the present case contained two counts; to the sufficiency of which counsel for defendants demurred. The demurrer was sustained as to the first count, and defendants were required to plead to the second count. No exception was taken by counsel for plaintiff to the ruling of the court in sustaining the demurrer to the first count. We can therefore confine ourselves to the allegations of the second count. Plaintiff, in the second count, alleges, in substance, that prior to September 14, 1906, she had been for many years a teacher in the public schools of the District of Columbia; that, without notice, defendants, acting as a board, dis* missed her from the rolls as a teacher, “assigning therefor that the same was done for the good of the service;” that therenpon plaintiff filed her petition in the supreme court, of the District of Columbia for a writ of mandamus to compel the board to reinstate her in her position as teacher; that the board, composed of the defendants, in order to prevent her from securing a writ, entered “into an unlawful agreement, combination, confederation, and conspiracy among themselves to ruin plaintiff, and to specifically prevent her from obtaining her proper redress as prayed for, and to which she was entitled in the mandamus proceeding aforesaid, and to cause it to be believed by the public in general that she was deficient in the necessary academic and pedagogic equipment of a competent teacher, and thereby prevent her from securing employment ■ as a school-teacher. In pursuance to their aforesaid plan and conspiracy to injure and ruin the plaintiff, the defendants maliciously and unjustly composed and published, and caused to be composed and published, and filed, and caused to be filed, in the clerk’s office of the supreme court of the District of Columbia, a certain paper purporting to be in their answer, and the answer of other members of the board of education, which contained certain false and scandalous and defamatory libel of and concerning plaintiff, and of and concerning her in an about her profession as a school-teacher, in the false and malicious and libelous words following: ‘These respondents (meaning the defendants and others composing the board of education of the District of Columbia) found on examination that the relator (meaning the plaintiff) was not sufficiently qualified in all respects to be competent to continue to teach during the ensuing year (meaning to continue to teach in the public schools of the District of Columbia for the school year of 1906-1907), but was deficient in the necessary academic and pedagogic equipment of a competent teacher. These respondents (meaning defendants and others composing the board of education of the District of Columbia) were therefore unable lawfully to continue the employment of the relator (meaning plaintiff).’ ”</p> <p>The declaration further alleges that the defendants, neither individually nor as a board, examined plaintiff as to her qualifications for a teacher, and that defendants knew at the time of filing the answer “that plaintiff was thoroughly proficient, Loth pedagogically and academically, and was so recognized by all who knew her, both in and out of the schools; and the defendants, and each of them, knew at the time of the composition and publication of the aforesaid false, scandalous, and defamatory libel tbat the facts therein alleged were absolutely false in fact, and done and intended to be done as and for a mere subterfuge, all of which was done in pursuance of their aforesaid unlawful agreement and design to annoy, disturb, binder, interfere with, oppress, and injure plaintiff in her aforesaid pursuit.” Then follows the allegation as to damage.</p> <p>For answer [plea] the defendants admit that plaintiff had been a teacher in the schools prior to September 14, .1906, and alleged that, under the authority vested in them as the hoard of education of the District of Columbia, plaintiff was dismissed from the service. They set up the proceedings had in the former action brought by'the plaintiff to secure a writ of mandamus to compel defendants to restore her to her position as a teacher, and allege that, “as respondents in said action of mandamus, filed an answer in the supreme court of the District of Columbia, in said suit, and in and by said answer, and upon a matter material, relevant, pertinent, and necessarily involved in said cause, and litigated therein between the said parties, set up the identical matters and writings complained of in the present suit, and thereupon set up in said answer and as a response to the allegations of said petition” the identical paragraph from the answer in the mandamus proceeding which is above set out in the declaration as composing the libel upon which this action is based. Defendants further allege tbe entry of a final judgment in tbeir favor in tbe mandamus proceeding, and jilead former adjudication.* A demurrer to the answer [plea] was interposed, which was overruled. The plaintiff elected to stand upon her demurrer, and judgment was entered for the defendants. From this order, the cause comes here on appeal.</p>

Hearing oh 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 of replevin. The Court in the opinion stated the facts as follows: This is a suit in replevin, filed in the supreme court of the District of Columbia by the appellant, W. W. Kimball Company, a corporation, to recover a piano from the appellee, Jacob B. Williams.

Hearing on an appeal by the defendant from an order of the Supreme Court of the District of Columbia, sitting as an equity court, vacating a previous order, and restoring the cause to the calendar. The facts are stated in the opinion.

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, after a hearing, to compel the School Board to admit the relator to a public school for white children.

Hearing on a writ of error to the Police Court of the District of Columbia in a prosecution for violating a police regulation relating to the keeping of fowls in the city. The facts are stated in the opinion.

Hearing on an appeal by tbe respondents from a decreé of the Supreme Court of the District of Columbia, in a habeas corpus proceeding brought by the appellee to obtain the custody of his infant son, awarding the custody of the child to a third person, not a party to that proceeding.- The Court in the -opinion stated the facts as follows: This is an appeal from a final judgment of the supreme court of the District of Columbia, awarding the custody of an infant son of the…

Hearing on án appeal by the defendant and the sureties on his appeal undertaking from a judgment of the Supreme Court of the District of Columbia, on verdict, in a landlord-and-tenant proceeding.

<p>Hearing oil an appeal from a decree of the Supreme Court of tbe District of Columbia, sitting in equity, dismissing a bill for the specific performance of a contract for the sale of certain real estate.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is a suit in equity, brought in the supreme court of the District of Columbia, to compel the specific performance of a contract for the sale of certain real estate situated in tbe city of Washington. The contract alleged to have been entered into between appellant, Jesse W. Rawlings, plaintiff below, and appellee, Lewis E. Collins, defendant, is shown by a written memorandum signed by the defendant on January 28, 1909, which is as follows:</p> <p>Frank T. Rawlings Company,</p> <p>Washington, D. C., Jan. 28th, 1909.</p> <p>$100. Received of Frank T. Rawlings Company, agent, a deposit of $100, to be applied as part payment in the purchase of sub-lot 33' in square 144, with improvements thereon, being premises No. 1824 E street, N. W., in the city of Washington, District of Columbia. The purchaser is required and agrees to make full settlement in accordance with the terms of this agreement within forty days from this date, and on default deposit will be forfeited.</p> <p>Price of property, $1,920.</p> <p>Terms of sale, all cash, clear of encumbrance.</p> <p>Good record title, or deposit returned.</p> <p>Interest on trust, rents, insurance, general and special taxes now due or pending to be adjusted to date of settlement.</p> <p>Examination of title, conveyancing, and recording at cost of purchaser.</p> <p>The forfeiture of deposit does not relieve the purchaser of the responsibility to comply with the terms of sale.</p> <p>This contract is made subject to the approval of the owner.</p> <p>Frank T. Rawlings Company, Agents,</p> <p>Per J. W. Rawlings, Vice Pres’t.</p> <p>Accepted by</p> <p>Frank T. Rawlings Company, Agt., Purchaser,</p> <p>Per J. W. Rawlings, Y. P.</p> <p>Approved,</p> <p>Lewis E. Collins, Owner.</p> <p>Subsequently, on .the 13th day of March, 1909, the plaintiff appeared before a notary public and acknowledged this instrument, and, on the same day, filed it for record in the office of the recorder of the District of Columbia.</p> <p>It appears that, after the agreement was made, and before the expiration of the forty days, the plaintiff made certain repairs on the property, alleged to have cost $48, and made an examination of title at a cost of $25. There was also an outstanding encumbrance against the property, amounting to $1,000, the release of which plaintiff undertook to secure. It is alleged by plaintiff that, owing to delays, this release was not secured until the 13th of March, 1909, — four days after the time had expired for the completion of the sale. It further appears that plaintiff, on or prior to the date fixed for closing the sale, sent a deed for the property to the defendant, which was executed and retained by him. On the day following, plaintiff secured certain data in relation to taxes, etc., from the defendant, notifying him that he would get up a statement, bring' down a check for the amount due defendant, and get the deed. On or about the 10th day of March, plaintiff went to defendant and tendered a check for the purchase money, offered at the same time to bring the amount in gold, or in any way which would make it more binding; but defendant refused under any conditions to accept it or deliver the deed, declaring I he sale off, and that he would forfeit to plaintiff the amount of the deposit and the value of the repairs made. On hearing, the court entered a decree dismissing the bill, and the case was brought here on appeal.</p>

<p>Husband and Wife; Estoppel; Evidence; Burden of Proof; Presumption of Death; Alimony; Appeal and Error.</p> <p>1. Where a husband, with knowledge of the facts, continues to live with his wife for many years, he is estopped to assert a right to an annulment of the marriage on the ground that one of her children, born prior to the marriage, is illegitimate.</p> <p>2. In a suit by a man to annul his marriage, upon the ground that, at the time of the marriage, the defendant had a prior husband living and undivorced, the burden of proof is upon the plaintiff to establish that the prior husband was living at the time of the marriage.</p> <p>3. While, in the absence of any evidence as to his whereabouts, the law, within seven years after his departure, will presume that a person is still alive, yet this presumption may be removed by credible evidence of his death, however slight.</p> <p>4. The presumption that a woman’s prior husband, absent less than seven years; was still living, is removed where she, called as a witness in a suit to annul a subsequent marriage, testifies that he was in failing health, being afflicted with tuberculosis, and that he decided to make a change of climate, in the hope of recovery, and accordingly obtained a position as traveling salesman in California; that he left her with the assurance that he intended to return, and that shortly afterwards she received a letter stating he had been taken with a hemorrhage on the train, and had died; failure to produce the letter being accounted for.</p> <p>i</p> <p>5. Where, in a suit by a husband against his wife, to annul their marriage, the court denies the relief sought, it has no jurisdiction to award permanent alimony to the wife. (Construing D. C. Code, sec. 975-978, 31 Stat. at L. 1346, chap. 854.)</p> <p>6. Where, on an appeal by the plaintiff from a decree dismissing a bill by a husband to annul a marriage, and granting permanent alimony to the wife, this court found that the court below was right in so far as it refused to annul the marriage, but erred in granting alimony, it affirmed the decree, and remanded the cause, with directions to strike from the decree the provision requiring the payment of alimony.</p>

Hearing on an appeal by the plaintiff, tbe Hnited States, from a judgment of the Supreme Court of tbe District of Columbia sustaining a demurrer to an amended declaration in an action on a bond.

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

<p>Patents; Novelty.</p> <p>While tlie effecting of a new combination of old elements so as to produce a new and useful result may constitute invention (following Re Eastwood, 33 App. D. C. 291), one who merely improves an element of an existing combination without making a new combination is not entitled to a combination patent. (Following Re McNeill, 20 App. D. C. 294.)</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>Patents; Interference; Disclosure.</p> <p>Where in an interference case involving the invention of an improvement in cutting and folding machines, the question was whether an earlier application of the senior parties contained a disclosure of the invention of the issue so as to entitle them to its filing date as the date of their conception and constructive reduction to practice, and it appeared that the drawings filed with the earlier application contained sufficient information to enable one skilled in the art to practise the invention, it was held that such application contained a sufficient disclosure. (Following Hopkins v. Newman, 30 App. D. C. 402.)</p>

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.

<p>Trademarks; Similarity or Names.</p> <p>1. The fact that an applicant for registration of a word as a trademark did not commence the use of the word until after the registration of a similar word by another applicant is a suggestive circumstance, and should receive consideration in the determination of the question of similarity between the two words. (Following Wm. A. Rogers v. International Silver Co. 34 App. D. C. 484.)</p> <p>2. Registration as a trademark of the word “Autola” is properly denied by the Commissioner of Patents, on the ground of its similarity to the word “Au-to-do,” already registered. (Citing Walter Baker & Co. v. Harrison, 32 App. D. C. 272, and Wayne County Preserving Co. v. Burt Olney Canning Co. 32 App. D. C. 279.)</p> <p>3. In an eso parte proceeding for the registration of a word as a trademark, in which the Commissioner denies the application, on the ground of the similarity of the word with a registered trademark, the applicant, on an appeal, is not in a position to raise the question that the word already registered was not the proper, subject for a technical trademark, and therefore its registration conferred no right on the registrant.</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 tbe Commissioner of Patents in an interference case.</p> <p>The facts are stated in the opinion.</p>

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

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

<p>Patents ; Interference.</p> <p>Where, in an interference proceeding, the sole issue is one of fact, this court will be slow to disturb the finding of the Commissioner of Patents, especially where the evidence appears to fully sustain his decision.</p>

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

Hearing on a motion to dismiss an appeal. The appellee, Rebecca Tates, moved to dismiss the appeal on the ground that the transcript of record did not contain all of the evidence which was submitted to the court below, and considered by it in passing the decree appealed from, — six depositions for the plaintiff and eight depositions for the defendant having been omitted from the transcript.

Hearing on an appeal from an order of the Supreme Court of the District of Columbia sitting as a probate court dismissing a petition to vacate the probate of a will and to grant letters, of administration to petitioners. The Court in the opinion stated the facts as follows: This is an appeal from an order dismissing a petition to vacate the probate of a will and grant of letters of administration.

Hearing on an appeal by the plaintiff from a judgment for the defendant of the Supreme Court of the District of Columbia in an. action, in which the declaration contained two counts, one in tort and the other ex contractu,, the plaintiff electing not to amend after a demurrer to each count ivas sustained.

Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia, sitting as an equity court, in a suit for the cancelation of a contract and to require defendant to reconvey to the plaintiffs an undivided interest in certain real estate and for an accounting.

Hearing on two appeals by the plaintiff from judgments of the Supreme Court of the District of Columbia upon verdicts directed by the court in actions for damages for the alleged dishonor of checks drawn by the plaintiff upon the defendant.

Blearing on an appeal from a decision of the Commissioner of Patents, dismissing an opposition to a petition to register a trademark. The facts are stated in the opinion.

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

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

Hearing on cross appeals by the plaintiff and the defendant in an action by the District of Columbia upon a statute, from a judgment of the Supreme Court of the District of Columbia, sustaining a demurrer to one of the counts of the declaration, and overruling it as to the second count.

<p>Courts; Justices op the Peace; Municipal Court; Attachment; Principal and Agent; Corporations; Bonds.</p> <p>1. The municipal court, under see. 2 of the D. C. Code (31 Stat. at L. 1190, chap. 854), is a part of the judicial system of the District.</p> <p>2. The act of Congress of February 19, 1895 (28 Stat. at L. 668, chap. 100), conferring upon justices of the peace authority “to hear, try, and determine all civil pleas and actions, including attachment and replevin,”- etc., was repealed by sec. 9, D. C. Code, providing that justices of the peace shall have jurisdiction in civil actions involving not more than $300, including all proceedings by attachment or replevin, the repeal of the act not being saved by sec. 1636 of the Code (31 Stat. at L. 1434, chap. 854), which saved “all acts and parts of acts relating to municipal affairs only.</p> <p>3. Under sec. 9, D. C. Code, the municipal court of the District of Columbia has authority to issue writs of attachment.</p> <p>4. Jurisdiction having been conferred by statute upon the municipal court of this District to issue writs of attachment, and the supreme court of the District having been authorized by statute to prescribe rules for the municipal court, the rules of the supreme court regulating the practice in the matter of the issuance of writs of attachment by the municipal court do not constitute legislation.</p> <p>5. A motion to quash a writ of attachment in a suit by a corporation, on the ground that there is nothing to show that the agent executing the attachment bond had authority to do so, is improperly granted, where the affidavit upon which the writ issued shows that the agent was credit clerk of the plaintiff, and immediately following the filing of the motion, the plaintiff filed a paper declaring that the agent had authority to execute, and ratifying his act in doing so.</p> <p>6. The • prosecution by a plaintiff corporation of a suit in which it has caused an attachment before judgment to be issued estops it from denying the authority of its agent who executed the attachment bond.</p> <p>7. The filing of a proper bond in an attachment suit is not jurisdictional, but the court acquires jurisdiction over the property seized by tlie-issuance and levy of the writ. If the defendant is not satisfied with the sufficiency of the surety on the bond, or the amount of its penalty, he has the right, under sec. 449, D. C. Code, 31 Stat. at L. 1260, chap. 854, to apply for an order requiring the plaintiff to give an additional bond, or, if the bond is defective, he may move to quash the writ.</p> <p>8. Where the court below granted a motion by the defendant to quash a writ of attachment, and overruled a motion then made by the plaintiff for leave to amend the attachment bond and affidavits, and, on an appeal by the plaintiff, it appeared that the court overruled the motion because of its opinion that the bond was defective, and this court found that the bond was sufficient, the question of whether the affidavits were sufficient was not decided by this court, but the judgment was reversed, and the cause remanded with leave to the plaintiff to amend the affidavits.</p>

<p>Hearing on an appeal by the defendant from an order of the Supreme Court of the District of Columbia overruling a motion to quash a writ of attachment.</p> <p>The facts are stated in the opinion.</p>

Hearing on an appeal by tbe plaintiff from a decree of tbe Supreme Court of the District of Columbia sustaining a demurrer to and dismissing a bill for an injunction. The Court in the opinion stated the facts as follows: This is an appeal from a decree sustaining a demurrer to and dismissing a bill for injunction. The bill filed by Levi If.

Hearing on an appeal hy the defendant from a judgment of the Supreme Court of the District of Columbia on verdict in an action on a promissory note.

Hearing on an appeal by the petitioner from an order of the Supreme Court of the District of Columbia, sitting as a District Court, sustaining* the demurrer to an amended petition for an award of compensation for the condemnation of unsanitary buildings, and, the petitioner electing not to amend, dismissing the petition.

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 of trover.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action of ejectment. 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, on demurrer to the declaration in an action for libel, the plaintiff electing not to amend. The Court in the opinion stated the facts as follows: This is an action for damages for libel, brought in the supreme court of the District of Columbia by appellant, John A. Chaloner, plaintiff below, against the appellee, the Washington Post Company.

<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 of ejectment.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an action of ejectment brought by appellant, Isaac S. Lyon, in the supreme court of the District of Columbia, to recover possession of an undivided one-half interest in the north half of lot 1, in square 834, in the city of Washington. It appears from the record that both parties claim to derive title from one William S. Walker, who died intestate in 1844, leaving as his only heirs at law four children, Thomas D. Walker, Mary E. Walker, William it. Walker, and Almea V. Davis. Plaintiff acquired in 1888 an undivided one-half interest in the entire lot, being the shares of Thomas D. Walker and Mary E. Walker, while the similar shares of the other two heirs were conveyed to other parties. These holdings existed in this manner until 1903, when, by a mutual exchange of deeds, plaintiff, as the owner of the moiety derived from Thomas D. Walker and Mary E.'Walker, relinquished all his interest in the south half of said lot, and Colbert, Ridout, and Simmons, trustees in a certain equity cause, conveyed the moiety derived from William R. Walker and Almea Y. Davis to the plaintiff. Subsequently, defendant, Isaac B. Bursey, took possession of the north half of said lot under a tax title.</p> <p>On November 16, 1905, plaintiff filed a suit to recover possession of the entire north half of the lot. The first trial resulted in a verdict for defendant. A new trial was granted. During the second trial, two separate and distinct interests were thought to be involved. One, plaintiff claimed to have acquired directly from Thomas D. Walker and Mary E. Walker, two of the heirs of the common source, and the other, from William E. Walker and Almea V. Davis, the other two heirs, through a number of transfers of different natures. Plaintiff then asked leave to file an amended declaration limiting his claim to an undivided one half of the north half of the lot, the interest derived 'directly from said heirs, which permission was granted by the court. The case was submitted to a jury, which returned a verdict for the plaintiff. An appeal was taken to this court, where the judgment was reversed and a new trial ordered. (30 App. D. C. 597.) On November 23, 1909, judgment was again entered for the plaintiff, from which no appeal was taken.</p> <p>On March 26, 1907, plaintiff filed the present suit to recover the remaining undivided one half of the north half of the lot, to which a plea of not guilty was filed. A trial was had on May 26, 1908, which resulted in a verdict for the plaintiff. An appeal was taken to this court, where the judgment was reversed and a new trial ordered. (32 App. D. C. 231.) On the second trial, under a peremptory instruction, a verdict was returned for the defendant. Erom the judgment entered thereon, this appeal was taken.</p>

<p>Hearing on an appeal by tbe defendants from a judgment of the Supreme Court of tbe District of Columbia, on verdict, in an action for damages for tbe obstruction of a right of way and for tbe destruction of an easement; and on a motion by tbe appellees for leave to file a remittitur as to tbe sum for which they were given judgment under tbe second count of tbe declaration, if, in tbe opinion of this court, error was committed with respect to tbe verdict and judgment under that count.</p> <p>Tbe Court in tbe opinion stated tbe facts as follows:</p> <p>This is an appeal [by Dora F. Eobinson and C. Barnwell Eobinson] from a judgment of the supreme court of tbe District, upon a verdict for tbe plaintiffs, Myra T. Hillman and Elizabeth Clement, tbe declaration being in two counts, one for damages occasioned by tbe permanent obstruction of an alleged right of way, and tbe other for damages flowing from the destruction of an alleged easement in tbe form of a sewer pipe leading from plaintiffs’ through defendants’ premises. Tbe verdict on tbe first count was for. $1,500, and on tbe second count, $500. A remittitur was filed reducing tbe verdict on-the second count to $416.64.</p> <p>In 1868, and for many years prior thereto, one Hugh- Gelston was tbe sole owner in fee simple of a parcel of land in Eeservation 11 in this city, rectangular in shape, with a width of 50 feet and a depth of 150 feet, bounded on tbe west by Third street, on the north by a paved public alley 14 feet wide, and on the east by a public alley 35 feet wide. In that year Gelston divided said tract into four parcels, one comprising the east 50 feet, now held by the defendants, and known as lot 36, the other three fronting on Third street, each 16 feet, 8 inches wide, with a depth of 100 feet, — the south lot known as No. 225, the middle as No. 227, and the north as No. 229. On July 20th, 1868, Gelston. leased the three Third street lots to Edward Wools for ninety-nine years, renewable forever, retaining the reversion. Wools, as lessee, thereupon constructed three houses on the three parcels, and on September 27th, 1869, assigned his leasehold interest in the middle parcel, No. 227, to Seth Hillman, through whom the plaintiffs claim. After the erection of the three Third street houses, Gelston erected four small houses on the east 50 feet of the lots fronting on the 35-foot alley. At the rear of these four houses he built a fence in which there were four gates, one to accommodate each house. These gates opened into a 4-foot private alley which had no existence prior to that date, and which was thereafter used by both the tenants of the four houses fronting on the 35-foot alley and by the occupants of the three houses on Third street, as an outlet to the 14-foot alley on the north. The situation will be better understood by reference to the plat on next page.</p> <p>Gelston died in 1874. At the time of his death he was the owner in fee of all of said tract, subject to the outstanding lease for ninety-nine years to two uf the Third street houses, including the plaintiffs’, the lease to the other Third street parcel having been reconveyed to him by Wools in 1870. Under Gelston’s will all his interest in this property passed to his three children, Edward TL, Victor d’L., and Rebecca Elsie, as tenants in common. Thereafter, by deed dated January 3d, 1876, Edward and Victor conveyed to Rebecca premises Nos. 225 and 227, being the southern and middle Third street premises, and she, by deed of the same date, conveyed to them all the remainder of said original parcel, which subsequently became vested in the widow of said Victor, Florence B. Gelston, who, by deed dated December 30th, 1898, conveyed to the defendant 11 rs. Robinson, in fee simple, the east 50 feet of said original tract, being said lot 36, “with the use of the</p> <p> </p> <p>alley located between the property now being described, and the property fronting on Third street, as now used ■ and enjoyed.” The deed from the Gelston brothers to their sister Rebecca, which, as above noted, included the reversion of plaintiffs’ premises, purports to convey the fee and all “privileges, easements, and appurtenances.”</p> <p>The evidence of the plaintiffs tended to prove that when Seth Hillman, in 1869, moved into said house No. 227, now occupied by the plaintiffs, it was a new house; that the three Third street houses were drained by sewer pipes running backward from each of said houses, and emptying into one terra cotta pipe at a point about 50 feet east of said Third street, and thence by said pipe to and through said lot 36 to the public sewer in said 35-foot alley; that this drainage continued unobstructed until cut off by the defendants in 1898. There was no evidence that Gelston, the then owner of defendants’ premises, had any knowledge of the laying of this sewer pipe there-through. It was admitted by Mrs. Hillman, on cross-examination, that said pipe was not visible until uncovered by the defendants, when the witness then saw it for the first time; that no repairs, to the knowledge of the witness, were ever made on said pipe.</p> <p>The testimony of the plaintiffs further tended to show that, upon the erection of said four houses by Gelston, about a year after Wools built the three houses on Third street, “a 4-foot strip” or alley between the houses on Third street and Gelston’s four houses, and running wholly outside of the west 100 feet of said original tract, that is to say, wholly within the east 50 feet thereof, and on the premises now held by the defendants, was laid out for the use and convenience of the occupants of all of said houses in reaching said 14-foot alley; that the closing of this private alley left plaintiffs no rear entrance to their premises; that when the defendants, in 1908, erected a building on their premises covering the whole lot, they removed said terra cotta sewer pipe. It further appeared that the defendants, claiming that said private alley was upon the rear of the three Third street lots, cut off about 4- feet of plaintiffs’ shed, and put the alley 4 feet west of where it then was.</p> <p>The testimony of the defendants tended to show that the first knowledge they had of said sewer pipe was obtained while excavating for the foundation of their building,, when they immediately notified one of the plaintiffs, and that they did not cut off the pipe until a month thereafter; that the pipe was about 6 feet beneath the surface, composed of 3-foot sections with open joints, without putty or cement; that during the construction of said building, a cave-in of the west bank between the defendants’ and plaintiffs’ premises exposed a brick walk which had been covered with dirt and ashes, and which was located just west of defendants’ west line. The bricks were of ancient make and laid “in herring-bone fashion,” and the walk was located wholly outside defendants’ premises. Other evidence to the same effect was introduced. It further appeared that there was a large public sewer in said 14-foot alley. There was no evidence, however, as to how long it had been there.</p> <p>At the close of all the evidence, the defendants moved the court for a directed verdict, which motion was denied and exception noted.</p> <p>The court, over the objection and exception of the defendants, granted the following prayer of the plaintiffs:</p> <p>“1. The jury are instructed that if they find from the evidence that at thé time of the partition deeds between the heirs and devisees of Hugh Gelston, the plaintiffs, or those under whom they claim, were and had been continuously using and enjoying the certain right of way mentioned in the declaration, and that said right of way was visibly established and was reasonably necessary for the enjoyment of said property, and that the use thereof was continued by the plaintiffs or those under whom they claim, until obstructed, and was never voluntarily abandoned, and that the defendants or either of them destroyed or obstructed the same, the plaintiffs are entitled to á verdict.”</p> <p>In his general charge to the jury, the court said: “The plaintiff claims, and claims only, — and it is only tipon that theory, if yon find that claim to be established by the evidence, that she can recover, — that at the time this entire tract was owned by a single owner, either that he built this sewer himself and established the alley himself, or somebody else did it with his approval and consent, and he, at the time, intended that the alley or sewer should become a thing which should permanently pertain to this house, No. 227 Third street.”</p>

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover damages for alleged personal injury. The Court in the opinion stated the facts as follows: This is an appeal from a judgment for defendant, the Capital Traction Company, in an action for personal injuries received by a passenger of the street railway company.

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia upon a verdict directed by tbe court in an action upon a sealed instrument.

<p>Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia, sitting as an equity court,-requiring him to pay alimony to the plaintiff and directing his commitment as for contempt in case of default.</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 ordering the appellant, Daniel Rhodes, to make payment of alimony to the appellee, Mary E. Rhodes, and ordering his commitment for contempt of court in case of default.</p> <p>The petition of Mary E. Rhodes, filed May 26, 1910, alleged the following facts in substance: That she is a resident of the District of Columbia temporarily residing in the state of Illinois, and that defendant is a resident of the District of Columbia. That on November 2d, 1903, the supreme court of the District ordered defendant Rhodes to pay her the sum of $50 per month as permanent alimony. That payments were made in obedience to said order to June 15th, 1901, and $35 per month thereafter to August 15th, 1909. That no payment has been made since said last date, and respondent has refused and still refuses to make any other payment in obedience to said order. That petitioner is in bad health and without means. That respondent is amply able to pay the sums decreed by said court, having a salary of $1,300 per annum, and receiving an annual pension of $144. A rule was prayed to issue to respondent to show cause why he should not be held in contempt for disobedience of said decree.</p> <p>In response to the rule respondent filed an answer, June 2d, 1910, alleging that he is a temporary resident of Maryland, but that his legal residence is in Fairfax county, State of Virginia, “'where he formerly lived with petitioner, where their child is buried, where he enjoys the election franchise,” etc. That petitioner has lived in Illinois about four years with her son, who is aged thirty-eight years, and two half sisters, That in May, 1902, petitioner abandoned the home of respondent for the third time, and went to Buckro Beach in the State of Virginia, where she contracted for the purchase of a house by means of money advanced to her by him from the sale of a house in the District of Columbia. That respondent had never lived with her since May, 1902, although he continued to provide for her support and that of her daughter, Grace B. Rhodes, now residing in Chicago, Illinois. That in the spring of 1903 petitioner was confined in the lunatic asylum in the District. That while on parole therefrom she brought suit against respondent for alimony. That respondent agreed to pay her $50 per month until the said daughter began to earn her own living, when he reduced the sum to $35 per month without objection by petitioner. That thereafter respondent brought suit against the petitioner for divorce in the circuit court of Fairfax county, Virginia, and at the September term thereof, 1909, a decree was entered in said cause which dissolved the marriage with petitioner, and of which she was notified. That believing this decree to be valid, he ceased to make any further payments to petitioner, and has since contracted another marriage. A copy of the decree of the circuit court of Fairfax county, Virginia, September term,' 1909, was made an exhibit to the answer. No replication was filed, and on June 9th, 1910, the decree appealed from was entered. This decree contains the following recital: “This cause came to be heard on the petition of the complainant, the rule to show cause why the defendant should not be adjudged in contempt for his refusal to obey the order of this court passed on the 2d day of November, 1903, and the answer of the defend- and thereto, and thereupon * * * .” The respondent filed</p> <p>his own answer, but on June 14th, 1910, acting through attorneys, he filed a motion for rehearing, alleging that the decree was rendered in his absence, and without hearing, he being of the impression that it was not necessary to be present in court after filing his answer. In support of this motion respondent made an affidavit, in which he alleges that he married petitioner in 1883, in the State of Colorado and resided there about one year. That they came to the District of Columbia in 1884 and resided there about four years. That in 1888 they purchased a home in Falls Church, Fairfax county, Virginia, and took up their residence there as a permanent home, and resided there until 1903, when he was compelled to sell his home. That he has continued from that time to retain his legal residence in said county and State. This motion was denied June llth, 1910.</p> <p>No evidence was taken in the cause; nor was their either demurrer or replication to the respondent’s answer to the rule to show cause.</p> <p>Upon the assumption that the pleadings in the suit for alimony and the decree thereon form a part of the record, they have been incorporated in the transcript. Briefly stated the bill filed September 10th, 1903, was for alimony; no separation was asked. It alleged that complaint and defendant were both residents of the District of Columbia, and had been since the year 1884. The other allegations were of want of means, sickness, etc., and the failure of defendant to provide for her support. The answer thereto alleged general grounds why the petition should be denied, but also alleged his willingness to make such a semimonthly allowance to complainant as his means would warrant. He made no denial of his residence in the District of Columbia. The following decree was entered thereon November 2, 1903:</p> <p>“This cause coming on to be heard upon the motion of the complainant to strike out the third ‘averment’ of the defendant’s answer, and upon the further motion for alimony pendente lite and counsel fees, and the defendant appearing in open court and consenting to the passage of a final order, it is by the court this the 2d day of November, a. n. 1903.</p> <p>“Ordered, adjudged, and decreed that the said third ‘averment’ in the defendant’s answer be striken out, and that the defendant shall pay to the complainant twenty-five dollars on the 15th of November and twenty-five dollars on the first and fifteenth of each month hereafter as permanent alimony, aajd further that the defendant shall pay to the counsel for the complainant as counsel fees the sum of forty dollars, ten dollars thereof payable on the Its of December, a. d. 1903, and the balance thereof payable in semimonthly instalments of $10 each thereafter.”</p>

<p>Contracts; Evidence; Release; Negligence; Master and Servant.</p> <p>1. General words in a release are to be limited and restrained by particular words in the recital.</p> <p>2. Death from injuries received by the engineer in charge of the engines of a city garage and power plant of an express company, from the falling of an alleged negligently constructed chimney built to carry off the gas from such engines, is not covered by a release given by the decedent upon entering such employment, reciting that he understood he might be required to render services for the company on and about transportation lines used by it for forwarding property, and assuming the risk of all accidents and injuries which he might sustain in the course of his employment, whether occasioned by negligence, and whether resulting in his death or otherwise.</p> <p>3. Where the engineer of an express company in charge of stationary gasoline engines installed and used by the company in its premises to charge its automobiles used for delivery purposes, was killed by the falling of a brick chimney forming a part of the plant and used to carry off the burnt gases from the engines, in an action by the administratrix of the deceased to recover damages for his death, it is error for the trial court in its instructions and charge % the jury to limit them to the consideration of the single question of whether the chimney was an unsafe device, and to refuse instructions asked by the defendant to the effect that it was not an insurer of the safety of the structure and of the deceased, and was liable only if it was negligent in the adoption of the design of the chimney, its construction, and in the use thereof. (Citing former appeal in same case, 32 App. D. C. 177.)</p> <p>4. An employer in experimenting with a new and untried device may be chargeable with negligence, but it does not follow as a conclusion of law that he is so chargeable.</p> <p>5. An employer, before adopting and installing a new and untried appliance, is required to select that which seems to be the safest and most suitable for his purpose, and to consult the best available known sources of information for reliable advice as to the wisdom of the proposed experiment. A failure to take these precautions, should the device selected prove defective and an accident occur from its use, will be regarded as proof of negligence.</p> <p>6. An employer who experiments with a new and untried device is required to exercise a much higher degree of care than if the device were in common use.</p> <p>7. Where an employee is advised of the unusual character of a structure, he is required to use a higher degree of skill and care than would devolve upon him in using a tried and tested device. ■</p> <p>8. Though the degree of care varies with the hazard of the employment, the duty at all times devolves upon the employer of selecting and installing the best and safest appliances commonly used in the line of work in which he is engaged, and of exercising that degree of care for the safety of his employees which ordinary prudence requires of those engaged in the same line of business.</p>

Hearing on an appeal by tbe defendant from a decree of the Supreme Court of the District of Columbia in a suit in equity to vacate the release of a deed of trust for fraud and for'the declaration of the deed of trust as a lien upon the real estate covered thereby.

Hearing on an appeal by one of several defendants (a severance Having been granted) from a decree of tbe Supreme Court of tbe District of Columbia enjoining tbe execution of a judgment in an action of libel.

<p>Hearing on separate appeals from decisions of the Commissioner of Patents in interference cases.</p> <p>The facts are stated in the opinion.</p>

<p>Fraudulent Transfers; Corporations; Trusts and Trustees; Equity; Cancelation of Instruments; Limitation.</p> <p>1. The purchase of an interest in a corporation is not voidable at the instance of the seller, merely because the purchaser at the time was manager and director of tbe corporation, and the seller was a director and stockholder.</p> <p>2. Where a director and active manager of a corporation, and owner of five sixths of its capital stock, desires to procure a contract from a fellow director who owns the remaining one sixth, and who has taken no active part in the management, and who relies upon the manager to keep him informed upon all matters relative to the operations and finances of the corporation, by which contract the manager is to be authorized to dispose of the stock of the other for a specified sum, payable partly in cash, partly in notes made or indorsed by the manager, and partly in the stock of another corporation, and is to be constituted attorney in fact to carry out the transaction, it would seem to be the moral and equitable duty of the manager, when dealing with the other, to disclose to him the material facts of the situation.</p> <p>3. Where a director and active manager of a corporation, and owner of five sixth's of its capital stock, alarms a fellow director who owns the remaining one sixth, by false statements of the financial condition of the corporation, with intent to induce him to part with his holdings at a grossly inadequate price, and procures from him a contract to sell for such price, payable partly in cash, partly in notes made or indorsed by the manager, and partly in the stock of a corporation organized by him for the purpose of acquiring the assets of the other corporation, and constituting the manager attorney in fact to carry out the transaction, and in consummating the contract, the manager secretly takes title to the stock himself, such facts shows such a case of fraud and deceit as to entitle the seller to relief against the buyer, aside from any question as to the relations between the parties at the time of the transaction.</p> <p>4. Although the subject-matter of a suit belongs in a general class over which courts of equity ordinarily take jurisdiction by virtue of the superiority of their remedies, that does not necessarily determine the question in a particular case, for notwithstanding the classification, the jurisdiction does not exist if it appear from the ease presented that a court of law is competent to take cognizance of it and afford a plain, adequate, and complete remedy. In every such case the defendant is entitled to his constitutional right of trial by jury.</p> <p>5. In order that the remedy at law shall be plain, adequate, and complete, it must be as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.</p> <p>6. In so far as one defrauded by another seeks to recover pecuniary damages for a deceit practised upon him, he is not entitled to relief in equity, for such damages can be assessed in an action of deceit at law.</p> <p>7. A prayer for cancelation on the ground of fraud, of an agreement authorizing the manager of a corporation to sell out the holdings of oné of its directors, will not give jurisdiction of the subject-matter to a court of equity, where the sale pursuant thereto has been completed, and the mere cancelation of the agreement will serve no useful purpose.</p> <p>8. A prayer that the defendant, who, by misrepresentations obtained authority to sell certain holdings of the plaintiff in a corporation, and secretly purchased them himself, be declared a trustee for plaintiff, will not furnish a ground of equitable jurisdiction, where there is no attempt to fasten a trust upon any particular piece of property into which the funds of plaintiff could be traced.</p> <p>8. Where the owner of five sixths of the capital stock of a corporation fraudulently procures a contract from the owner of the remaining one sixth, whereby the former is authorized to sell the stock of the latter for a specified price, payable partly in cash, partly in promissory notes made or indorsed by him, and partly in the stock of another corporation, and whereby he is constituted attorney in fact for the seller to carry out the sale, and he pays the money, gives the notes, and takes title to the stock himself, he is liable to the seller for al! profits made by him in the transaction, which profits can be recovered by the seller as damages in a suit in equity, if their ascertainment will involve the examination of corporate transactions of a complex nature, necessitating a wide range of evidence, for which a court of equity is peculiarly competent, and which duties a jury could not satisfactorily perform.</p> <p>10. Without regard to the analogy of the statute of limitations, a plaintiff asking a remedy in equity for fraud must exercise his right within a reasonable time after the discovery of the fraud. (Citing Pryor v. ilclntire, 7 App. D. C. 417.)</p> <p>11, Laches, to afford relief against actual fraud, must not only consist of delay, but a delay that has worked disadvantage to the opposing party. If there have been in the meantime no change of title, no great rise in the value of property involved, no loss of material evidence; in general, no intervention of substantial equities, it is not of controlling importance that a right shall have been pressed with promptness. Courts of equity will look with some indulgence upon mere delay from which no material injury has accrued.</p>

Hearing on an appeal by defendant sureties from a judgment of the Supreme Court of the District of Columbia on verdict in an action on a bond.

Hearing on an appeal by tbe defendant from a decree of tbe Supreme Court of tbe District of Columbia, sitting as a court of equity, in a suit by tbe surety on a bond to require tbe principal obligors to pay for certain material supplied for public work ■ Tbe Court in tbe opinion stated tbe facts as follows: Tbis is an appeal from a decree of tbe equity court requiring Pavarini and Wyne, a corporation, to pay tbe H. B. Smith Company tbe sum of $877.20.

<p>Trusts and Trustees; Vendor and Purchaser; Notice; Principal and Agent; Admission; Specific Performance; Decrees.</p> <p>1. After the execution of a contract to exchange real estate, each party holds his legal title as trustee for the other party. (Following Griffith v. Stewart, 31 App. D. C. 39, and Lenman v. Jones, 33 App. D. C. 7.)</p> <p>2. The equitable estate of the vendee in a contract to sell real estate will avail against any subsequent encumbrance or conveyance acquired from the vendor with notice.</p> <p>3. Judgment creditors of the vendor in a duly recorded contract for the sale of real estate have constructive notice of the contract, and judgment' liens acquired by them after such notice are void and clouds on title, which a court of equity may remove at the instance of the 'vendee.</p> <p>4. Where an agent makes a contract in his own name and under his own seal, his principal cannot maintain an action thereon.</p> <p>5. Where a contract discloses on its face the name of the principal as .one of the contracting parties, and his name is attached thereto by his duly authorized agent, it constitutes a valid contract enforceable by the principal, and it is, therefore, immaterial if the agency of the person negotiating the contract is undisclosed, or if the principal subsequently erases his own name, as signed by the agent, and signs his name himself, as the status of the parties remains unchanged.</p> <p>6. Where a fact is averred in a bill in equity, and is admitted in the answer, the admission is conclusive against the defendant, and evidence tending to dispute it will not be considered. (Following Alfred Richards Brick Co. v. Trott, 23 App. D. C. 284.)</p> <p>7. A decree of specific performance of a contract to exchange lands, which requires the plaintiff, as a condition of having specific performance, to furnish the defendant a good and marketable title of the property which he agreed to exchange with defendant, necessarily requires the plaintiff to clear the title of his own property from any equitable interest which any other person or persons may have therein.</p>

Hearing on an appeal by tbe plaintiff from a judgment of tbe Supreme Court of the District of Columbia, on demurrer to a declaration in an action of libel, the plaintiff declining to amend. The Court in the opinion stated the facts as follows: This is an action by Phil D. Poston against the Washington,. Alexandria, & Mount Vernon Railway Company, and Robert A. Chester, to recover damages for the publication of a libel.

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 an alleged nuisance. The Court in the opinion stated the facts as follows: The appellant, Academy of the Sacred Heart of Mary, plaintiff below, brought this action against the appellee, Philadelphia, Baltimore, & Washington Railroad Company, to recover damages resulting from an alleged nuisance.

Hearing on an appeal by the respondents from a judgment of the Supreme Court of the District of Columbia, sustaining a demurrer to an answer to a petition for the writ of mandamus.

<p>Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action for slander, assault, malicious prosecution, and false arrest and imprisonment.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal [by the United Cigar Stores Company, a corporation], from a judgment of the supreme court of the District in an action of slander, assault, malicious prosecution, and false arrest, growing out of a burglary which occurred in one of the defendant’s retail tobacco stores in this city, and in which $508 belonging to the defendant was taken. A general verdict for $2,500 was returned upon the counts alleging false arrest and slander, the other counts having been withdrawn from the consideration of the jury.</p> <p>The plaintiff, Charles S. Young, a cigar salesman of five and one-balf years’ experience, was twenty-five years of age and married at the time of bis alleged arrest. He had worked for the defendant for almost two years at various times, and in May or June of 1907 he was again employed by it, and stationed in its store at the corner of Fifteenth street and New York avenue, N. W., in this city. A Mr. Madison was then chief clerk and a Mr. Bouvier was manager and inspector for defendant’s stores in Washington. On Sunday, June 23d, 1907, Mr. Madison, Mr. Dempsey, another clerk, and the plaintiff were on duty in said Fifteenth street store. Owing to its being Sunday, all the clerks save the plaintiff left at 6 o’clock in the evening, and from that time until 11 o’clock, when he closed the store according to the usual custom, the plaintiff remained in charge. According to his testimony he then went to a lunch room, and after he had lunched, started home. When near home, noting a crowd of people in front of a house where some disturbance had occurred, he “spoke to two policemen on the beat,” reaching home at 20 minutes after 12, and retiring-almost immediately. In opening the store the next morning, in the due course of his duty, at a little before 7 o’clock, he observed that the time lock, which registers the time the door is opened, already had been turned. He turned the other lock and entered the store. Plaintiff then discovered that the safe had been opened, the strong box therein torn to pieces, and the money that it had contained taken. The safe had been opened by means of the combination. The plaintiff testified that at that time he did not know how much money had been in the safe, but afterwards learned through Mr. Bouvier that it amounted to about $508. Plaintiff immediately informed two police officers whom he found near the store of what had occurred, and they made a hasty inspection of the place, plaintiff assisting. The plaintiff then notified Mr. Madison, the chief clerk, and later Mr. Bouvier. Plaintiff continued to work until Friday, June 28th. He testified that on that day he opened the store as usual and worked until about 8 o’clock, when two men whom he recognized as detectives came into the store and said, “We want youthat he answered, “I think you are mistaken; you don’t want me;” that Mr. Bouvier then asked for his keys, which he surrendered: that when plaintiff hesitated about complying with the officers’ suggestion that he accompany them, they said, “Hurry up and get your hat and come on;” that he requested time to telephone his wife, to which request they answered, “You will have plenty of time to telephone your wife, you will have all day to talk to her in;” that plaintiff turned to see what Mr. Bouvier was going to do, when Detective Weeden “kind of pushed me out of the door, putting his hand on my shoulder;” that he then walked down New York avenue with one detective on either side of him, boarded a street car at Fourteenth street, and after he got on the car the detectives sat on either side of him; that he started to pay his own fare but that they said, “No, we will pay your fare;” that Detective Burlingame “looked at the conductor and smiled and the conductor looked back at him and winked his eye;” that plaintiff was not informed where they were going and did not know their destination; that they finally reached detective headquarters, where they were met by another man, who asked, “Have you got him ?” that he was first put into a room where people were walking in and out; that Detective Burlingame then said, “Wait and I will take you back here into a small room and get you out of the way, so everybody won’t see you;” that he was then taken into a very small room which, it subsequently developed, was a telephone room, about 10 by 12 feet; that there were two men in the room, whose identity was not known to him; that he then heard Mr. Steinecke, the superintendent of the sales department of the defendant company for all territory east of Chicago except New York city, say, “Let me go in and talk to him first;” that Steinecke seemed very much excited; that he came into the room where the plaintiff was, the two gentlemen remaining; that Steinecke then said to the plaintiff, “We have brought you down here, and if you will come here and sit down and tell me the truth about this thing, I will listen to you;” that thereupon plaintiff himself “got very mad and excited;” that during the conversation that ensued Steinecke said, “Don’t you know that the bonding company will hold you for this money, and that we don’t lose it?” That Steinecke also asked, “Young, didn’t you go back to the store at 1 o’clock?” that plaintiff replied, “No, sir, I did not. I was in bed at that time;” that Steinecke replied, “’We have a man who will say he saw you there at 5 minutes of 1;” that Steinecke then left the room for a few minutes and then returned, and in the course of the talk that ensued he said, “Do you realize that you will never be able to get a bond again in the United States ? * * * Young, the best thing you can do for yourself is to get that money and bring it back;” that the detectives then took him into another room in which was Captain Boardman, Detectives Burlingame and Weeden, Mr. Madison, and Mr. Steinecke, and that after being subjected to a cross-examination in which all save Madison participated, he was permitted to go; that he “guessed” he was at detective headquarters for about an hour, but that it seemed much longer; that Steinecke followed him out of Captain Boardman’s room, walked up to him, and said, “I want that button,” referring to the identification button used by the clerks in the store; that Steinecke then said, “Young, you can consider yourself discharged.” The plaintiff testified that aside from the effect the experience produced upon his nerves, he was greatly hampered thereby, and prevented from obtaining as remunerative employment as formerly. Witness further testified that there was usually more money in the store on Sunday nights than on any other night, because the receipts of both Saturday and Sunday were kept in the store, owing to the closing of the bank at noon on Saturday. He also testified under cross-examination that he thought the two men were in the small room while ' the conversation took place with Steinecke, but that he was “too excited to look to see who was in the room.”</p> <p>Plaintiff introduced the deposition de bene esse of Mr. Steineeke, who also testified for the defendant. From his deposition and testimony it appeared that his duties were to see that the stores were properly stocked and conducted; that he had authority to employ and discharge clerks, and exercised it when necessary, but not usually; that he arrived in Washington on June-27th, 1907, when the burglary was reported to him by the local inspector, Mr. Bouvier; that he made such an inspection as the regular course of his duties demanded; that he and Mr. Bouvier then met the detectives, probably at the defendant’s principal store on Pennsylvania avenue; that Steinecke then had a conversation with the detectives in reference to the burglary. He admitted that he “may have told them that I did not see who else could be responsible outside of Young; that he had the keys, closed up, and opened up, and so on;” that he m,ight have said, “It certainly looks like it is up to Young.” One of the detectives, according to Steinecke’s testimony, then said that the Captain (Boardman )would like to talk to Young some time the next day, and asked Steinecke “whether Young could be permitted to come down there;” that he informed him that Young could go at almost any time, and it was finally arranged to have one of the clerks who ordinarily came on at 9 or 10 o’clock in the morning come on an hour or two earlier the next morning to relieve Young. Steinecke admitted that he was at detective headquarters before Young reached there, but denied that he requested Young’s arrest, or that he was authorized to make such a request. He further testified “that he told the police officials that he had no authority to order arrests for his company, and that he could have no part in any arrest if one should be made.” He also denied using the specific language attributed to him hy Young during their interview at detective headquarters. He, however, admitted saying to Young “that a man who once is turned down by a bonding company, or detected in a dishonest act, cannot get bond anywhere in the United States.”</p> <p>Mr. Bouvier, who, as previously noted, was the local manager and inspector for the defendant, when called by the plaintiff, testified that, on the day following the burglary, he advised the company in New York of the occurrence by telegraph. To whom he telegraphed does not appear, except from his testimony on cross-examination, when called as a witness for the defendant. He then testified “that while he telegraphed to Mr. Steinecke, the superintendent, a report of the robbery on the day thereafter, Mr. Steinecke did not reach Washington until four or five days later;” and that upon the night of Mr. Steinecke’s arrival in Washington the witness “made a full oral report of the matter” to him.</p> <p>The testimony of the defendant tended to show that while the police officers were making the preliminary examination of the store after the notification by Young on the morning following the burglary, Young had stated to them “that as near as he could say there had been about $500 in the safe;” that their examination of the store upon that occasion showed that it was impossible for anyone to have entered it except by way of the door, and that whoever made such entry must have had a key.</p> <p>Upon the argument of the case at bar it was conceded that, according to the time lock, the store had been entered at 1 o’clock in the morning; that is to say, 1 o’clock Monday morning.</p> <p>Detective Weeden, who, with Detective Burlingame, made the alleged arrest, testified that upon the occasion of said alleged arrest, he and Detective Burlingame entered the store, and that he, addressing Young, said, “Young, we would like to have you go to headquarters,” and that Young, after inquiring when, said, “All right;” that when they got to headquarters Young was asked “to stay in the telephone room until the roll call was over.” The witness continued: “When the roll call was over, I went out and got Young, and took him into Captain Boardman’s office, and we questioned him.” The witness further testified that Young was willing to go to police headquarters, that no force was used in any way, and that Young remained at headquarters about thirty minutes, after which “he went out about his business.” The witness did not remember whether or not he conversed with Steinecke the night before Young was taken to headquarters, “but that, if he did have a talk with him (Steinecke), it was either at police headquarters or at the store at Fifteenth and New York avenue.” The witness denied that he had asked Steinecke’s permission to take Young to police headquarters. Detective Burlingame’s testi-' mony was substantially in accord with that of the proceeding witness, except that he admitted, under cross-examination, “that he probably had a conversation with him (Steinecke) before Young was brought to police headquarters.” He also admitted that he might have asked Steineeke’s permission to take Young to headquarters.</p> <p>The telephone operator at police headquarters, referred to by Young in his testimony, testified that the telephone room was probably 10 by 12 feet; “that he remembers two men sitting in his room in June, 1907, in connection with the investigation of the burglary at the United Cigar Stores store at Fifteenth street and New York avenue; that these two men were talking together in his room about this matter, but that he did not hear anything that was said by them, although they were talking to each other in an ordinary conversational tone;” that he should judge they were 6 or 8 feet from him during their conversation. The witness was not asked whether there were other persons in the room at the time mentioned. Neither did Steinecke testify that Robinson was the only person present besides himself and the plaintiff.</p> <p>Mr. Madison, the chief clerk of the defendant, testified that he returned to the store at 10 o’clock on the night of the burglary, when he found no one on duty but a little boy, “shortly after which Young came up from the cellar, seemingly very much excited, but explained that he had gone into the cellar for a glass of water.” Under cross-examination, witness stated that the water cooler was kept in the cellar, but that it was a violation of the rules of the company for a clerk to leave the store to go into the cellar or elsewhere when on duty alone.</p> <p>There was also testimony tending to show that the duties of the superintendent of the sales department of the defendant, that is, Steinecke’s duties, were not defined in writing.</p> <p>At the close of all the evidence, counsel for the defendant submitted a general motion for a directed verdict on the ground “that there was no evidence in the case legally sufficient to sustain a verdict for the plaintiff.” This motion was overruled and exception noted. Thereupon counsel for the defendant submitted nine instructions for the jury, five of which were granted and four refused. The court thereupon, of its own motion, instructed the jury, the charge covering every phase of the issues to be determined.</p> <p>Upon the question as to whether the plaintiff was falsely imprisoned, the court said in part: “If the circumstances of the occasion, the identity of the officers, and manner and nature of their address to the plaintiff, were such as to induce in the mind of a reasonable person the belief that they were forcibly about to remove him by physical power, if need be, if he did not go voluntarily, and if, under such circumstances, he yielded to go along, that would be imposition of such mental duress as would amount to false imprisonment. But if, under all the environment of circumstances that appealed to the mind of the plaintiff at the time, a reasonable man would not have apprehended that the police officers were about to force him to go to the station house if he refused, then, in such a situation of fact, there would not be the element of mental duress such as is necessary to amount to a false imprisonment, if there were compliance with the demand.” The jury were then told that “a police officer has the right to arrest without a warrant if he has reasonable grounds to believe that a felony has been committed, and if, in addition to that, he has reasonable grounds to think that the person whom he arrests is guilty of that felony.” Attention was then directed to the fact that admittedly a felony had been committed: “So in this case, if those officers had reasonable grounds to believe — -that is to say, if a man of reasonable prudence and caution, in their situation, knowing what they knew, hearing what they heard, would have believed that this plaintiff was guilty of stealing the money, then they would have the right to arrest him, even though he was not guilty. If they had the right to arrest him, and did arrest him, then, even though defendant occasioned the arrest, the defendant cannot be responsible, because, if the officers had the right to arrest him, and did arrest him, the imprisonment was lawful, and the motives which influenced anyone in procuring the officers to do what they had a right to do would not render that person responsible for damages to the person arrested.” It was then explained to the jury that even though they should find that an unlawful arrest had been made, “the defendant could not be responsible for that, unless it actually and affirmatively procured the officers to do the unlawful thing of arresting him, when they had no right to believe him guilty of the offense. Nut when I say ‘procured.’ the officers to do it, I mean procured in the sense of being the affirmative movers in the effort which resulted in the apprehension of the man by the officers. * * * Therefore you will have to decide, from all the circumstances appearing upon that point that will aid you in determining the question, if you find that one of the officers of the corporation procured the officers to arrest Young * * * whether -the corporation, by the nature and scope of the affairs to be transacted in Washington which it had committed to its particular manager or employee, committed such an authority to operate in Washington on its behalf as carried with it the authority and right on behalf of the corporation to institute criminal proceedings against dishonest employees, if you find that authority was so broadly vested, the corporation will be responsible for what the employee did in that regard. If you find that it was not so general as to commit to such officer that ■ authority to proceed in its behalf, then what he did in that respect would be his own individual, personal conduct, and would in no sense be obligatory upon the corporation or its stockholders.”</p> <p>As to the count in slander, the court said in part: “Now, this fourth count of the declaration claims that the defendant corporation, through its manager, falsely charged the plaintiff with the crime of larceny. Whether or not you find that the manager did charge the plaintiff with the crime of larceny, the liability of the defendant to respond to it would depend upon the same considerations that I have already given you; that is to say, whether the authority that manager was discharging in the city of Washington, which had been committed to his hands by the corporation, to discharge there, was so broad as to commit to him the right to speak on behalf of the corporation concerning the guilt or the innocence of its employees. If it did, it would be responsible for what he did. Otherwise, not.” The jury were then told: “But the mere speaking of the words, although you find them to have been slanderous, does not make or give rise to the technical action of slander, because, as I have already pointed out, the right to recover for slander depends upon whether or not one’s reputation has been affected. Inasmuch as one’s reputation cannot be affected unless a false report is put current, the false words must be spoken in the presence or hearing of a third person; not necessarily two, but they must have been said in the hearing of at least one person. Otherwise, they never have been made public, never have been put out, never have been launched forth, so as to have any effect whatever upon the reputation of the person complaining. That would cause you to determine from the evidence, if the words were spoken and were slanderous, whether, if defendant were responsible for them, they were spoken in the presence and hearing oí a third person. If they were, they would be slanderous. If they were not, an element essential to the maintenance of a cause of action for slander would be absent, and there would be no recovery.” This last instruction was in harmony with one of the defendant’s prayers which had been granted. At the close of the court’s charge, the defendant, through its counsel, noted the following exceptions: “I would like to ask an exception to so much of your Honor’s charge as says that mental domination may constitute a false imprisonment; and to so much of your Honor’s instructions as says that reasonable ground for suspicion after felony committed is a question of fact for the jury; and in respect to the fourth count, that the offense of slander can be made out without actual proof that the alleged slanderous words were heard by a third person; I say it was not proved here that any third person heard them.”</p>

<p>Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action, on bills of exchange.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from a judgment of the supreme court of iht District of Columbia in a suit brought by appellant, Johnson County Savings Bank, against the appellees, Mary C. Man-dell and Peter J. Mendell, doing business under the name of P. J. Mendell & Company. The case was tried by a jury, and a verdict rendered in favor of the Mendell Company, defendant.</p> <p>Tbo action is based upon four bills of exchange in the nature of drafts, payable in three, six, nine, and twelve months, respectively, after date. The instruments, except as to date of payment, are each in the following form:</p> <p>Lyon-Taylor Company.</p> <p>No. 4168. Iowa City, Iowa, Oct. 20, 1904.</p> <p>Three months after date, pay to the order of Lyon-Taylor Company, at Iowa City, Iowa, ninety-five and. 00/000 dollars, $95., Value received, and charge to account of</p> <p>Lyon-Taylor Company,</p> <p>Per E.</p> <p>To P. J. Mendell & Company, Washington, D. C., 1726-28 7 St. N. W.</p> <p>(Indorsement across face) “Accepted. P. J. Mendell & Company.”</p> <p>(Indorsement on back) “Dec. 8, 1904. Pay Johnson County Savings Bank, Iowa City, Iowa, or order. Lyon-Taylor Company. By N. H. Taylor.”</p> <p>These drafts were made to secure the payment of an alleged indebtedness arising upon the following contract:</p> <p>Terms on all purchases subsequent to this trial order are sold on sixty days net, or 2 per cent cash, ten days.</p> <p>Folio P.</p> <p>Lyon-Taylor Company.</p> <p>Not Incorporated.</p> <p>New York, San Francisco, St. Louis,</p> <p>19 Maiden Lane. 825-855 Market Street. Holland Building.</p> <p>Factory: Iowa City, Iowa.</p> <p>Gold Eings for the Babies.</p> <p>Lyon-Taylor Company, in consideration of the following order, agrees to give a gold ring to each baby under one year of age in the vicinity where purchaser’s store is located. The following are the conditions under which these rings are to be given away:</p> <p>1. An application must be made by the baby’s mother or guardian on the blank provided by the Lyon-Taylor Company, a copy of which is printed on the back of this order. This application must be filled out in full by said mother or guardian at purchaser’s store.</p> <p>2. The purchaser must mail the application within twelve months from date of shipment to the Lyon-Taylor Company, who will, on receipt of same, forward the ring to purchaser.</p> <p>3. The mother or guardian must call at purchaser’s store and get said ring, and sign a receipt provided by Lyon-Taylor Company, a copy of which is printed on the back of this order. The purchaser must countersign the said receipt, and mail it to the Lyon-Taylor Company. It is agreed that if purchaser at any time fails to comply with any of the provisions of this agreement, the Lyon-Taylor Company shall not be obliged to forward baby rings until said provisions have been complied with.</p> <p>Advertising. Lyon-Taylor Company agrees to furnish the advertisement on the back of this order, or one like it, in circular form, for use in the vicinity where purchaser is located, and for the purpose of advertising these goods, the purchaser agrees to send the Lyon-Taylor Company by mail, registered, between the 1st and 5th day of each month, on blanks furnished for that purpose, 100 different names each month for six months of bona fide residents of his community. To each of these people the Lyon-Taylor Company agrees to send by mail their Illustrated Monthly.</p> <p>Purchaser hereby waives right to claim failure of consideration, or goods not according to order or like samples, unless he has exhausted the terms of the warranty and exchange.</p> <p>Following is a list of goods and terms for our $380 order. Positively no goods on commission.</p> <p>Our Warranty. Any jewelry in this assortment, failing to wear satisfactorily, will be replaced by new articles free of charge if returned to us within five years from date of invoice.</p> <p>Exchange Plan. Any jewelry in this assortment, not selling readily, may be exchanged for new styles and patterns of any jewelry in our stock, provided same is returned to us for exchange within one year from date of purchase.</p> <p>Terms of Payment. 6 per cent discount, cash ten days, or can be paid one fourth of the amount in three months, one fourth in six months, one fourth in nine months, one fourth in twelve months, without interest, if acceptances are given within fifteen days from date of invoice.</p> <p>This trial order is composed of assorted patterns of articles listed below, made in sterling silver, rolled gold plate, gold front, gold filled and oxidized finish goods at prices ranging from lowest to highest price mentioned.</p> <p>' (A description of goods with price is here inserted.)</p> <p>Time is of the essence of this agreement. The purchaser agrees to send a quarterly report of all goods sold and remaining on hand unsold. This sale is made under inducements and representations herein expressed, and no others. On condition that' purchaser complies with the terms of this order at the time and manner herein stated, Lyon-Taylor Company guarantee, if the retail sales from the above assortment of jewelry in the undersigned merchant’s store do not equal the amount of purchase price ($380) by the expiration of twelve and one-half months from date of invoice, that the Lyon-Taylor Company will buy back for cash, at the original invoice prices, sufficient jewelry from the merchant to make up the deficiency, and remit for sale-by New York Exchange.</p> <p>Lyon-Taylor Company, Factory:</p> <p>Gentlemen:-—</p> <p>Please ship at your earliest convenience, the above order, upon the terms and conditions herein specified.</p> <p>Postoffice, Washington. Date 10/11/09.</p> <p>P. J. Mendell & Company, Name of purchaser.'</p> <p>I. M. Crane, Salesman.</p>

<p>Rules op the Patent Office; Patents; Interference; Diligencej Master and Servant.</p> <p>1. All rules of the Patent Office which are authorized by law have the force of law, and control procedure in that office.</p> <p>2. Under rule 122 of the Patent Office, parties to an interference who would question the right of an adversary to make the claims of the issue are required, if possible, to file their motion to dissolve not later than the thirtieth day after the statements of the parties have been received and approved. The rule further provides that such a motion be accompanied by a motion to transmit the question to the-primary examiner for initial determination. Rule 330 permits a party to allege the nonpatentability of the claims of his opponent at final hearing before the examiner of interferences, and upon. appeals from his decision only in the event that such party' has complied with the provisions of rule 122, “or shown good reason why such a motion was not presented and prosecuted.” These rules are reasonable and within the authority conferred upon the Commissioner.</p> <p>3. The determination of whether good reason exists for the failure of a party to an interference to file a motion to dissolve, as required by rules 122 and 130 of the Patent Office, rests largely in the discretion of the tribunals of the Patent Office; and unless there has been a gross abuse of such discretion, this court will not interfere..</p> <p><£. Conceding, arguendo, that ill health of counsel might, in some circumstances, excuse delay in filing a motion to dissolve an interference, counsel who are able to participate in the taking of testimony are, not so incapacitated as to be excused for such lack of diligence.</p> <p>S. The suggestion made by an employee who, as a part of his duties, made and tested a tire tool devised by his employer, that a roller be placed in the device to reduce the friction, held to be a change within the skill of the mechanic, and that it should inure to the benefit of the employer.</p>

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

<p>Hearing on an appeal from a decision of the Commissioner of Patents, declaring an application for a patent abandoned for lack of prosecution within the statutory period of two years.</p> <p>The facts are stated in the opinion.</p>

<p>Patents; Amendments; Rules of the Patent Office.</p> <p>1. Ah amendment of a rejected application for an improvement in preserving comestibles describing a composition consisting in part of an oxygenated solution, is properly rejected by the Commissioner of Patents as containing new matter not found in the original application, where it substitutes bone dust for such solution. (Following lie Dilg, 25 App. D. C. 9, and Re Scott, 25 App. D. G. 307.)</p> <p>2. A rule of the Patent Office, promulgated by lawful authority, and not in conflict with any provision of law, has the force of a statute.</p>

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

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

<p>Trademakics; Resemblance; Exclusive Use; Abandonment.</p> <p>1. Two trademarks are substantially the same in legal contemplation, if the resemblance is such as to deceive an ordinary purchaser giving such attention to the same as such a purchaser ordinarily gives, and to cause him to purchase one article, supposing it to be the other. (Following Gaines v. Carlton Importation Co. 27 App. D. C. 571; Buchanan-Anderson-Nelson Co. v. Breen & Kennedy, 27 App. D. C. 573, and Hall v. Ingram, 28 App. D. C. 454.)</p> <p>2. Three marks for cigars, “Optimates,” “Optimo,” and “La Optima, held to he so similar, not only in appearance, but in meaning and origin, that they must be considered as the same in law.</p> <p>3. A trademark which so nearly resembles another known mark, owned and so used by another as to be likely to cause confusion, will not be registered, and it is immaterial that the prior mark has never been registered, or that the applicant did not know of the existence or use of the prior mark.</p> <p>4. A junior user of a trademark in good faith, and without knowledge of its use by the prior owner, may, upon abandonment of the mark by the prior owner, acquire a property right in it; provided, at the time of such abandonment, the junior party is the exclusive user of the mark (following Mayer Fertilizer & Junk Co. v. Virginia-Carolina Chemical Co. 35 App. D. C. 425). But if two or more persons are using the mark at the time of abandonment, with or without knowledge of its prior use, neither will be prior to the other in point of time, since neither can, in any event, date priority of use beyond the time when the prior owner surrendered title by the act of abandonment.</p>

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

<p>A. LescJien c6 Sons Rope Company v. Broderielc A Basoom Rope Company, ante, p. 451, applied and followed.</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 for damages to personal property.

<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 statutory penalties.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This action was brought by appellant, District of Columbia, hereafter referred to as plaintiff, to recover from the defendant, The Washington Gas Light Company, a corporation, the sum of $2,900 as accrued penalties for failure to furnish gas of the illuminating power and purity required by law.</p> <p>The declaration alleges that the gas furnished by the defendant company was of less illuminating power than that required by law on nineteen days during the period from July 5th to October 9th, 1907, inclusive, and that there were defaults in purity on ten days between 'August 14th and October 9th, 1907, inclusive. Plaintiff claimed for these defaults the sum of $2,900 as accrued penalties. Defendant pleaded nil debit, and a special plea, alleging that the defaults could not have been prevented by the exercise of ordinary care. Issue was joined, and the cause was tried to a jury. After the' submission of all of the evidence, the court, on motion, directed a verdict for defendant From the judgment thereon this appeal was taken.</p>

<p>Hearing on an appeal by the plaintiff 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 specific performance of a contract to sell land.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is a suit for specific performance, begun by Cotter T. Bride against James C. Beeves and wife, on March 10th, 1910, of a contract to convey certain lands alleged to be situated in the city of Washington.</p> <p>The contract reads as follows:</p> <p>This agreement, made and entered into this 14th day of April, 1905, by and between James C. Beeves of the District of Columbia, party of the first part, and Cotter T. Bride, party of the second part. Mr. Beeves agrees as soon as he acquires a good title to square six hundred and four (604) and six hundred and five (605), to turn over to Cotter T. Bride his right, title, and interest in square six hundred and four (604) and square six hundred and five (605) upon the payment of three thousand dollars ($3,000), the same to be a good title and free of encumbrances. Beceived on the above sixty and 00/100 dollars ($60).</p> <p>James C. Beeves. (Seal.)</p> <p>Cotter T. Bride.</p> <p>Execution was acknowledged by both parties before a notary public on April 14th, 1905, and the contract was duly recorded in the District deed records on April 30th, 1907. In addition to the payment of the $60 recited, the receipt of $40 additional is indorsed on the instrument over the signature of Beeves.</p> <p>The bill alleges that on April 25th, 1907, a decree was passed in an equity suit begun by Beeves for the purpose, vesting in him a good fee-simple title to said lands. That in May and June, 1907, plaintiff offered to perform his obligation, and demanded a conveyance by Beeves, who, from time to time, insisted upon the payment of a greater price. That, depending such negotiations, on July 23, 1907, Beeves and wife conveyed said lands to W. Walton Edwards and William H. Shipley in trust, to secure a note of even date for $1,000, payable to one Jesse II. Powell; which conveyance has since been recorded.</p> <p>Thereafter, on November 26th, 1909, said Beeves and wife execfited a deed to Galen E. Green, conveying to him in fee square 604; and the same has since been recorded. Thereafter Green conveyed said square 604 to a Harry T. Light, on December 15th, 1909.</p> <p>That on December 10th, 1909, Beeves entered into a contract with said Green for the conveyance to him of square 605. That long after the record of the contract sued on, Beeves suffered certain judgments to be entered against him in the supreme court of the District as follows: September 9th, 1909, in favor of Lillie M. Shipley for $246.08; since entered of record to use of John Bidout; September 9, 1909, in favor of Mattie-B. Slater for $500; since entered of record to the use of William J. Kehoe; October 22, 1909, in favor of the Commercial National Bank for $170; since entered of record to the use of William J. Kehoe.</p> <p>That said Eeeves has permitted the taxes on said lands to go unpaid, and become an encumbrance thereon, the amounts of which should be deducted from the purchase price contracted to be paid by the plaintiff.</p> <p>Edwards and Shipley, trustees, and Jesse H. Powell, beneficiary in said trust deed; Light and Green as claimants of title; and Eidout and Kehoe, as judgment creditors .claiming liens, were all made parties defendant.</p> <p>As regards the said trustees and Powell, Light, and Green, the bill alleges that each of them, before the transactions with them and the conveyances, contracts, etc., under which they claim, had actual knowledge of the said contract, and of the registration of the same.</p> <p>The bill further alleges that when plaintiff heard of the said trust deed, he expostulated with Eeeves, and demanded that he remove the said cloud upon the title to the said lands, and perform his said contract. That, at times, Eeeves would agree to do so, but vacillated from one purpose to another, and kept postponing plaintiff, until, on November, 1909, he caused a letter to be written by said Edwards, as his attorney, in which plaintiff was informed that if he would furnish a statement of the moneys advanced by him, and in the payment of taxes, the same would be paid. The amount represented as $406.14 was declared disputed and vouchers therefor must be exhibited; and it was added that if no adjustment be made suit would be.begun against plaintiff.</p> <p>The bill further alleges that until the receipt of the letter aforesaid, plaintiff had been led to entertain a reasonable ex.pectation that Eeeves would perform his contract.</p> <p>Decree is prayed against Eeeves and wife for the execution of the conveyance, all encumbrances to be adjusted; tender of readiness to perform is alleged by plaintiff, and he offers to pay into court such a sum as may be found due by him upon the ascertainment of the remainder due. Decree is also prayed annulling the said trust-deed conveyance and contract, and the lien of said judgments, and declaring the same subordinate to the rights of plaintiff under his contract.</p> <p>Each defendant demurred, assigning as matters of law to be argued: 1. The bill is multifarious. 2. The contract does</p> <p>not sufficiently describe the property, and lacks the necessary mutuality. 3. No tender averred. 4. The contract sought to be enforced is not that described in the bill. 5. Laches.</p> <p>O. There is a plain and adequate remedy at law. Agnes Reeves assigned the additional ground: 7. She is not a party to the contract, and no relief can be had against her.</p> <p>The demurrer was sustained. Plaintiff prayed leave to amend as to Agnes Reeves, which was denied. Declining to amend in other respects, the bill was dismissed.</p>

Hearing on an appeal by the complaints from a decree of the Supreme Court of the District of Columbia, sitting as a court of equity, construing a will. The facts are stated in the opinion of the Court.:

Hearing on an appeal by the plaintiff from a decree of the Supreme Court of the District of Columbia, sitting as a court of equity, dismissing a bill to restrain the execution of a judgment at law. The facts are stated in the opinion,

<p>Evidence; Trial; Reversible Error; Slander and Libel; Objections and Exceptions; Appeal and Ebrob.</p> <p>1. The admission of evidence relating to a collateral matter, and introducing through the cross-examination of the defendant an issue not directly involved in the case, by means of which evidence the defendant’s integrity is impeached, is reversible and prejudicial error.</p> <p>2. Words that are not in themselves objectionable cannot be made so by innuendo, but must be aided by proper averment and colloquium.</p> <p>3. The innuendo in an action of libel cannot extend the sense of the alleged libelous words beyond their own natural meaning, unless something is put upon the record to which the words spoken may be referred, and by which they may be explained by the innuendo.</p> <p>4. In the declaration in an action of libel, it is the office of the inducement to narrate the extrinsic circumstances which, coupled with the language published, affects its construction and renders it actionable, where, standing alone, and not thus explained, the language would appear either not to concern the plaintiff, or, if concerning him, not to affect him injuriously.</p> <p>5. The colloquium in the declaration in an action of libel is a direct allegation that the language used was concerning the plaintiff, or referred to him and his affairs, or related to plaintiff and the facts alleged as inducement.</p> <p>6. No colloquium or averment of extraneous matter is necessary where the publication is libelous upon its face,. If, however, the words are not defamatory per se. the defamatory meaning must be set out in the inducement, and this meaning or application must appear by proper averment in the colloquium. Where the person alleged to have been defamed is alluded to in ambiguous terms, full and ex-plieit averment is essential to show the application of the language used. The extrinsic facts must be separately and distinctly alleged as traversable facts.</p> <p>7. If words are actionable per se, no innuendo is required in the declaration in an action for their publication; but, if the words used do not import libelous or slanderous defamation on their face, their meaning must be made to appear by innuendo.</p> <p>8. A newspaper publication by the candidate for a public office, calling attention to a conference held between his adversaries and the United States district attorney, to determine “what ammunition was needed to defeat” the candidate, asking where the money came from in the contest against the candidate, and ending, “How about the race track?” is not libelous per se of the district attorney; and in an action by him against the candidate for libel, where there is nothing in the declaration except in the innuendo to indicate that the words published had reference to the failure of the plaintiff to prosecute race-track gamblers, or to his illegally or corruptly obtaining money from them in consideration of the nonperformance of his official duty, the declaration is fatally defective, and it is error for the trial court to overrule a motion by the defendant to arrest a judgment in favor of the plaintiff.</p> <p>9. The testimony of the defendant in a libel suit, to explain the meaning he intended to convey by the words used in the alleged libelous publication, is admissible to determine whether the meaning ascribed to it by the innuendo in the declaration is correct.</p> <p>10. It is for the court to determine whether an alleged libelous publication is susceptible of the meaning ascribed to it by the innuendo, and for the jury to determine whether such meaning is truly ascribed to it.</p> <p>11. Where alleged libelous words are not libelous per se, it is error for the trial court to take from the jury the consideration of the meaning to be attached to such words; and under such circumstances, where the defendant has testified as to what he meant by the words, it is error for the trial court to withdraw from the jury the consideration of his testimony.</p> <p>12. Where alleged libelous words are ambiguous and susceptible of two meanings, one libelous and the other not, it is for the jury to decide in what sense they were actually used.</p> <p>13. It is not necessary for a party making a motion in arrest of judgment on the ground that the declaration fails to state a cause of action, to reserve an exception to the action of the trial court in overruling his motion. (Distinguishing Smith v. Ross, 31 App. D. C. 348.)</p> <p>14. The question of the validity of a judgment in which the declaration fails to state a cause of action may be raised in the first instance in the appellate court by writ of error, without demurrer, motion in arrest, or other proceeding below.</p>

<p>Hearing on an appeal by the plaintiff from a decree of the Supreme Court of the District of Columbia, dismissing a bill for injunction against the Secretary of the Interior.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>Appeal [by Fred C. Fisher] from a decree of the supreme court' of the District of Columbia, dismissing appellant’s bill to restrain the Secretary of the Interior from canceling the desert-land entry, under which appellant claims, until appellant is accorded a hearing upon the precise question determined by the Secretary, and forming the basis of his decision that said entry be canceled.</p> <p>The hearing before the trial court was upon bill, answer, and agreed statement of facts. The land in controversy is in the S. W. i of N. E. Í, the W. i of S. E. and the S. W. £ of sec. 2, and the N. E. ]: of S. W. of sec. 3, T. 31 N., R. 110 W., Evanston land district, Wyoming, and contains 320 acres. Several years prior to 1902, one lames Westfall settled upon this land, reclaimed part of it, and then deserted his family. In 1902 his son, Perry A. Westfall, made desert-land entry of part of said land, and on June 21st, 1903, assigned his interest to Cordelia Helen Fisher, wife of the complainant. On August 21st, 1903, William H. Allen, who had entered the residue of said tract, also assigned his interest to Mrs. Fisher. At the time of the taking of these assignments, Mrs. Fisher had exhausted her right under the desert-land act by entry of 320 acres. She, however, was advised by the register of the United States land office at Evanston, Wyoming, that notwithstanding she had exhausted her personal right in the premises, she could take another 320 acres by assignment. This advice was erroneous, but she acted upon it, and paid about $1,200 for the improvements and rights she was supposed to have acquired. The work of reclamation, begun by James Westfall, and continued by her assignors,, she supplemented by grubbing and irrigating the land, so that in 1905 about 200 tons of hay were cut thereon.</p> <p>Learning that the advice of the register as to her right to take this land was erroneous, and that she was disqualified to enter it, Mrs. Fisher, on July 15th, 1905, relinquished said land, and her entry was canceled. Thereafter, on July 17th, 1905, E. May Inkster, a cousin of Mrs. Eisher, and a member of the Eisher household, made oath before complainant, as United States Commissioner, to her declaration of intention to reclaim said land under the provisions of the desert-land laws. This declaration was in due form and accompanied by the required affidavits. Thereafter, on July 20th, 1905, the register and receiver of the United States land office in said Evanston issued their joint certificate in regular form, certifying that said entry woman had filed her declaration as aforesaid. Thereafter, on August 10th, 1905, Miss Inkster gave notice that on September 23d, 1905, she would make final proof of said land claim before complainant, as United States Commissioner, and on that day final proof was made, final charges paid, and on October 7th, 1905, the register of said land office executed a final certificate to said land. On December 28d, 1905, Miss Inkster conveyed this land to the complainant out of gratitude to him and Mrs. Fisher for providing her a home, and realizing, as Mr. Eisher subsequently stated in his testimony, that 1he Fishers “put the money up for all the improvements.”</p> <p>On May 17th, 1906, one William J. Alexander filed a contest affidavit at the United States land office at said Evanston, Wyoming, praying that said Inkster desert-land entry be canceled and forfeited to the United States, because “said land is not desert in character, and at the time of entry was, and had been for a number of years, thoroughly reclaimed, and was then producing a paying crop of hay.” Thereafter, on June 10th, 1907, after due notice to the parties, a hearing was had in said contest proceeding before the register and receiver of the land office at Evanston, Mr. and Mrs. Fisher being present and testifying. The decision was in favor of Mr. Eisher, and appeal was thereupon prosecuted to the Commissioner of the Ceneral Land Office, who, upon the testimony already in the case, reversed the decision of the local land officers, and in the course of his opinion said: “In her (Miss Inkster’s) declaration executed July 17th, 1905, before Fred C. Eisher, United States Commissioner, she swore inter alia, that said land has hitherto been unappropriated, unoccupied, and unsettled, because it has been impossible to cultivate it successfully on account of its dry and arid condition.</p> <p>“If the entrywoman did not know this to he false, the officer before whom she so declared knew it to be so, as he had been irrigating and cutting hay from the land, averaging more than a ton to the acre, for the two years preceding the entry of the land by Inkster. The evidence submitted leads to the inevitable conclusion that Inkster, the entrywoman, was in collusion with the Fishers, and that she made the entry with the intent to convey the title to them.</p> <p>“Without considering other questions presented in this appeal, it is sufficient to state that land that has been effectually reclaimed is not subject to desert-land entry. (Taylor v. Rogers, 14 Land Dec. 194.) The land embraced herein was unmistakably of that character when Inkster attempted to acquire title thereto hy entering same under the desert-land laws, and her attempt must fail.”</p> <p>An appeal was taken from the decision of the Commissioner, and the First Assistant Secretary of the Interior, in deciding that appeal, stated that the material facts in the case had been correctly recited in the decision of the Commissioner; that “with reference to the condition of the land, the testimony shows that it was practically reclaimed when Miss Inkster’s entry was made.” The Assistant Secretary then found that Miss Inkster’s “entry was made solely in the interest of Mrs. Fisher, who was not qualified to complete the entries of Westfall and Allen, and that it was used as a subterfuge to accomplish indirectly what could not be done directly.” He thereupon affirmed the decision of the Commissioner.</p> <p>Thereafter Miss Inkster filed a motion for review of the decision of the Assistant Secretary, assigning as one of the grounds for her motion that it was error on his part “to find fraud, conspiracy, or collusion between the entryman and others, as no-such charge was made in the contest, and that question was not put in issue by the contest.” This motion was overruled, the Assistant Secretary, in his opinion, saying: “It is evident that Mrs. Fisher will sustain great loss because of her inability to make available her rights under the assignments of West-fall and Allen, unless she can recover from her assignors. . The rights assigned to her by Westfall and Allen were valuable rights, for which a large consideration was paid, and there appears to be many equities in her favor by reason of her expenditure of money on the erroneous advice of the government officer, if the Department was not powerless to recognize in her any right under said assignment. But it cannot be seen how she can be affected by the cancelation of this entry, except upon the theory that her relinquishment of a valuable right without compensation, and the entry of Miss Inkster, were designed to accomplish indirectly what could not be accomplished under her assignment.</p> <p>“That is the view the Department took of the case, and it is immaterial whether it was charged in the contest or not. The government will investigate for itself every question, in order that no portion of the public lands shall be disposed of to a person not entitled to it.”</p> <p>Thereafter a motion for re-review, accompanied by affidavits, was filed. One of those affidavits was by the complainant, who therein stated “that had I been apprised of the fact that the contest was being prosecuted upon any ground of collusion and conspiracy with E. May Inkster, I could have completely disproved same.” Thereafter, on March 25th, 1909, said motion for re-review was denied.</p> <p>Thereafter, on June 24th, 1909, the Commissioner of Ihe General Land Office caused to be placed upon the proper tract book in his office the notation of cancelation of said desert-land entry, so made by Miss Inkster, and caused a like notation to be made upon the final certificate issued by the register, and receiver upon said entry, and on the same day said Commissioner wrote to the register and receiver of the local land office at Evanston, Wyoming, inclosing a copy of said decision of the Assistant Secretary of the Interior. The letter contained the following: “The entry is hereby canceled. You will allow contestant thirty days’ preference right of entry.” Thereafter, on June 28th, this suit was filed, and on the same day the Commissioner of the Land Office telegraphed the local officers at Evanston, Wyoming, countermanding the order to note cancelation of the Inkster entry, and directing the return of said letter of June 24th. This telegram reached the local officers before any action had been taken upon the Commissioner’s letter.</p> <p>After the refusal of the trial court to issue a restraining order pendente lite, and pending final decision in that court, appellees directed the local land officers in Wyoming to note cancelation of the Inkster entry, and permitted others to file homestead entries upon the land involved; in other words, between the filing of the bill and final hearing in the cause, the act sought to be prohibited was done. These facts were brought to the attention of the trial court by supplemental bill. Upon final hearing, however, the court contented itself with an order denyihg any relief, and dismissing the entire proceeding.</p>

Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia, sitting as an equity court, dismissing a bill for divorce so far as the charge of adultery was concerned, and granting a separation from bed and board. The Court in the opinion stated the facts as follows: This is a suit for divorce brought by appellee, Rebecca Yates, plaintiff below, against appellant, John C. Yates, Sr., on the grounds of adultery and cruelty.

Hearing upon four separate appeals from decisions of the Commissioner of Patents in interference cases. The facts are stated in the opinion.

<p>Trademark ; Similarity or Marks.</p> <p>The word “Kalodont” as applied to tooth paste, held not to 30 nearly resemble “Sozodont,” used as a trademark on similar preparations, as to be calculated to mislead and deceive purchasers. (Following Sail v. Ingram, 28 App. D. C. 454.)</p>

<p>Estoppel; Tbademabks.</p> <p>1. The mere failure by one party to assert his right by infringement suit against another party for a number of years, unattended by circumstances sufficient to raise an estoppel, will not necessarily bar his right to maintain such a suit. (Following Michigan Condensed Milk Co. v. Kenneweg Co. 30 App. D. C. 491.)</p> <p>2. In a trademark interference case the issue is not one merely of priority, as in a patent interference, but involves any issue that might be raised in an ex parte case. (Following Re Herbst, 32 App. D. C. 565.)</p> <p>3. If a mark has come to be so public and in such universal use that nobody can be deceived by the use of it, and can be induced from the use of it to believe that he is buying the goods of the original trader, the right of the original trader to the mark is lost.</p> <p>4. The representation of a star as a mark for beer has. become publici juris, so as to destroy the right of its registration as a trademark.</p>

<p>Patents ; Claims and Specifications.</p> <p>1. Quwre, whether, in view of the state of the art relating to rail joints, claims in an interference involving an improvement in such joints, which appeared originally in the junior party’s application, should be narrowly construed, when the question presented is whether the claims should be read upon the other party’s device.</p> <p>2. The subject-matter of two applications involving an improvement in rail joints, held not to materially differ, and a decision of the Commissioner of Patents overruling a motion for dissolution of the interference by the party who in his preliminary statement showed conception subsequent to the filing date of the other party, and awarding priority to the latter, affirmed.</p>

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

<p>Patents; Reduction to Practice; Master and Servant; Diligence.</p> <p>Where the junior party in interference conceived the invention three years before the senior party, but did not attempt to reduce to practice until he was assigned by their common employer to assist the senior party, who was engaged, in a rolling mill of the employer, in perfecting the invention which he in the meantime had conceived, it was held that what the junior party then did was not of his own motion, but through direction of tlie employer, and that he was lacking in diligence when the senior party entered the field.</p>

<p>Evidence; Notice; Neglisicnce; Equity; Mistake; Appeal and Error.</p> <p>1. A paper which expressly refers to another paper within the power of the party gives notice of the contents of such other paper.</p> <p>2. Whatever is notice enough to excite attention and put a party on liis guard and call for inquiry is notice of everything to which snch inquiry might have led. When a person has sufficient information to lead him to a fact, he is to be deemed conversant of it.</p> <p>3. Where a mistake is the result of a party’s carelessness and inattention, a court of equity will not grant him relief against its effect.</p> <p>4. A bank to which the receiver of an insolvent corporation presents his order of appointment containing the title and number of the cause in which he was appointed receiver, with a demand for the transfer to himself of the deposit of the corporation, has constructive notice of the contents of the bill of complaint in such cause; and if the bank, after two days’ delay for purposes of investigation, makes the transfer, it cannot thereafter recover from the receiver the money so transferred to him, on the ground that it was paid under mistake ■ of fact; especially where the facts upon which it relies are set forth in the bill in equity.</p> <p>5. An assignment of error presenting a moot question only will not be passed upon.</p>

Hearing on an appeal by the caveators from an order of the Supreme Court of the District of Columbia, sitting as a probate court, dismissing the caveat to a will, after the trial by jury of an issue formed therein. The Court in the opinion stated the facts as follows: This is a contest over the settlement of an estate. One Diller B. Groff, a resident of the District of Columbia, died March 8, 1910, leaving a last will and testament bearing date January 23, 1907.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action for alleged personal injury. ' The Court in the opinion stated the facts as follows: This is an appeal from a judgment recovered by Theodore A. Schubert, an employee of the Philadelphia, Baltimore, & Washington Railway Company, against said company in an action for personal injuries received.

<p>Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover damages for alleged personal injury.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from a judgment upon the verdict of a jury for the defendant, the Great Atlantic & Pacific Tea Company, a corporation, in an action for personal injuries alleged to have been sustained by the plaintiff, Annie A. Coberth, by reason of the negligence of the defendant in leaving open and unguarded a trapdoor in the back of its store, through which the plaintiff fell.</p> <p>The defendant corporation, on February 6th, 1909, was operating a retail store at Thirty-First and M streets, N. W., in- this city. It appears that the company gave its customers, with their purchases, tickets which the company subsequently received in exchange for china and crockery ware, a sort of premium arrangement. These premiums were kept in the back of the store, and customers were permitted to inspect them upon all days when the store was open, except Saturdays, when, owing to the increased trade and the congested condition resulting therefrom in that part of the store where the premiums were displayed, tickets were not exchanged. A notice to that effect was posted in the store. The back part of the store was separated from the main part by a flour counter, with a 3-foot opening therein. There was evidence that upon the occasion in question there were barrels about this opening, so that a space remained something less than 1 foot wide, through which ingress to the back of the .store could be made. Near the stand where these premiums were kept was a trapdoor large enough to admit a sugar barrel, and which was left open on the day of the accident.</p> <p>The evidence on behalf of the plaintiff was to the .effect that she went to the store on the evening of said day, made some purchases, received some tickets therewith, and then informed the clerk that she would like to exchange tickets that she had brought with her for dishes; that the clerk assented; that they went back to where the premiums were displayed; that she did not like the cup which the clerk showed her, and that, in attempting to reach for another, she fell through the trapdoor, which, of course, she had not seen; that she did not know that tickets were not redeemed on Saturdays, nor was she so informed. One witness testified in corroboration of plaintiff.</p> <p>The evidence on behalf of the defendant tended to show that the plaintiff was informed that tickets were not redeemed on Saturdays, and that, upon her insistence that she needed cups for Sunday, the clerk who waited upon her told her to stay where she was (in the main part of the store), and he would bring her what she wanted; that thereupon he brought out some cups and saucers, which did not suit her; that the clerk started to get more, and that, when plaintiff started to follow, he told her to stay where she was and he would bring them to her; “that he went on back, and that she followed him back; that he did irot see her; that he went behind the crockery stand to get some cups, and that is the last he knew of it until he found her down in the cellar.” The manager of the store testified that he also said to plaintiff: “Do not go back; he will bring them to you.” Two other witnesses, one not connected with the defendant in any way, testified to the same effect.</p> <p>Counsel for the plaintiff prayed the court to instruct the jury in substance that the plaintiff was justified in going into the back part of the store, unless the jury should find “from all the evidence in the case that she was instructed not to go back where the trapdoor was located. Then, in that event, it would be a question you would have to determine as a matter of fact whether the plaintiff used that degree of care and caution under all the circumstances of the case that a person of ordinary prudence and caution would have used under all the circumstances in the case.” This request the court refused, and exception was noted. The court charged the jury, as requested by the defendant, that if they believed “from the evidence that any of the agents or employees of the defendant warned or requested the plaintiff not to come upon that portion of the premises where the trapdoor in question was located, but that the plaintiff disregarded this warning or request, and of her own accord and without the knowledge of the defendant company or its agent, entered upon that portion of the premises where said trapdoor was located, and became injured in consequence by falling through said trapdoor, their verdict must be for the defendant.” The plaintiff noted an exception to this portion of the court’s charge.</p> <p>In the course of its general charge, the court told the jury that the duty of the defendant to provide the plaintiff a reasonably safe place in which to transact her business did not extend to that part of the store into which she was warned or requested not to go. The court continued: “Of course, if she went there and the defendant saw her there, then there would .be a duty arising which would be the reasonable exercise of caution on the part of the defendant to prevent the accident; but I ought to say, so far as my own view of the testimony is concerned, that I know of no evidence in this case which shows that the defendant company knew that she was there, so far as that phase of the case is concerned, unless you take the view of the plaintiff in this case that she was never prevented from going there. You are entitled to pass upon the evidence yourselves. The court may give you its views of the evidence; but it is not binding on you. You are entitled to believe or disbelieve any part of the evidence that you find in the case.” To this part of the charge the plaintiff also excepted.</p>

<p>Hearing on an appeal by the defendants from a judgment of the Supreme Court of the District of Columbia, on a verdict directed by the Court, in an action of ejectment.</p> <p>The Court in the opinion stated the facts as follows;</p> <p>This is an appeal from a judgment in an action of ejectment.</p> <p>The declaration of the plaintiffs, Myra T. Hillman and Elizabeth Clement, claimed possession of a strip of land, part of lots 12 and 13 in reservation 11 in the city of Washington, 4.81 feet wide and 16.67 feet long.</p> <p>Plaintiffs claimed title as devisees of Ann B. Hillman, “the assignee of the entire interest of Lizzie Clement, who was the assignee of the entire interest of Seth Hillman, who was the assignee of the entire interest of Edward Wools, to whom said property was leased by Hugh Gelston, on July 20th, 1868, for a period of ninety-nine years, renewable forever.” Defendants, Dora E. Robinson and O. Barnwell Robinson, entered a plea of not guilty. It appears that reservation 11 was originally divided into lots 12 and 13, fronting together, 50 feet on 3d street, and running back 150 feet to a public alley 35 feet wide. The two lots were further subdivided into three parcels 16 feet 8 inches wide, numbered 225, 227, and 229, running back 100 feet, leaving the eastern 50 feet in one parcel, which afterwards was designated as lot 36. The strip in controversy is part of a parcel, or lot 227. Dwelling houses occupy said lots 225, 227, and 229.</p> <p>Plaintiffs offered the following evidence of title: (1) A certificate of the commissioners appointed under an ordinance of the city of Washington, passed May 22, 1822, to the effect that at a public sale made July 9, 1822, Robert Keyworth had purchased lot 12, in reservation 11, upon certain conditions,, together with an assignment by Keyworth of his interest therein to Hugh Gelston! (2) A similar certificate to Keyworth on July 10, 1822, applied to lot 13, also assigned to Gelston. (3) A lease' from Hugh Gelston to Edward Wools, dated July 20th, 1868, for the term of ninety-nine years, with a covenant for renewal of said lease' forever, demising the western 100 feet of said lots 12 and 13, describing the same by their subdivisions. (4) Assignment of said lease by Wools to Seth Hillman, in consideration of $4,000, of said center lot 227, dated September 27, 1869. (5) Assignment of lease by Seth Hillman to Lizzie Clement of said lot 227, in consideration of $2,000, dated July 21, 1870. (6) Assignment of lease from Lizzie Clement to Ann B. Hillman, in consideration of $1,000, dated August 1, 1870. (7) Will of Ann B. Hillman, dated June 27th, 1909’. Elizabeth Clement and Myra T. Hillman were named executors. Item 1 gives all of her estate to said executors, “in trust to sell and convey in fee simple in their discretion.” Item 3 devises to her said- daughters, Elizabeth Clement and Myra Hillman,, the brick house known as No. 227- (“on the condition hereinafter provided”), together “with all the rest and residue of my estate, including my household and other personal effects of every kind and description wheresoever found, which I may be possessed of at my death, to have and to hold the same for their sole use and benefit, to be equally divided between them.” Item 4 gives $300 to her son Richard; and Item 5, $100 to her son Townshend. Item 6 provides that in order to provide a fund for the payment of the legacies aforesaid, the house No. 227 shall be sold at public or private sale within two years after testatrix’s decease. After paying said legacies, the proceeds of sale shall be equally divided between said daughters. Item 7 reads as follows: “It is my wish and desire, however, that my two daughters shall keep and occupy the said house as a place of residence as long as it may be convenient and agreeable for them to do so, and if my said daughters shall choose to pay to my two sons the legacies hereinbefore provided for out of their private funds (the receipt of which by my sons shall be considered as full settlement of all their claims against my said estate), then the sale as hereinbefore provided for need not be made until such time as my said daughters may elect, — the entire proceeds of which, when sale is so made, shall then be equally divided between my two daughters.” (Defendants objected to the introduction of said instruments, stating n.o ground of objection. Objections were overruled, and exception taken.)</p> <p>(8) Elizabeth Clement testified that she and Myra T. Hill-man were daughters of Ann B. Hillman, testatrix, who died November 13th, 1902. Witness was the stepdaughter of Seth Hillman. Ann B. Hillman lived in the house from 1869 until her death. Witness and sister have lived in it since 1869. The legacies to the two sons of Ann B. Hillman were paid by witness. C. Barnwell Bobinson, called by plaintiffs, testified that he built a house on lot 36, in 1908, the western wall of which extended 9 inches beyond his line. At the rear of the houses 225, 227, and 229 are wood sheds. Between those sheds and his western wall is a passageway 4 feet wide, which was left for exit from the rear of those houses to the alley on the north.</p> <p>Defendants introduced the following evidence: (1) That Florence B. Gelston, by virtue of the will of Hugh Gelston and conveyances, became the owner in fee of the parts of lots 12 and 13, known now as lot 36, and conveyed the same to Dora E. Bobinson by deed dated December 31, 1898. (2) Sections 1, 28, 55, 62, 63, and 74 of the building regulations of the District of Columbia relating to party walls. (3) A permit to Dora E. Bobinson to erect on lot 36, a four-story brick building, — height 60 feet. And evidence hy a district building inspector that the western wall was 9 inches over the division line, being one half of the width of the wall. An architect and engineer, Sunderland, testified that he made the plans and superintended the construction of the building, and that he had computed the value of that part of the wall extending over the line of lot 227. Upon objection of tbe plaintiffs, the court excluded the evidence of value. In connection therewith defendants read a notice served upon plaintiffs to' the effect that, in case of a verdict in favor of plaintiffs, defendants would claim the benefit of improvements placed by them upon the property in question.</p> <p>Upon conclusion of the evidence, the court, on motion of the plaintiffs, directed the jury to return a verdict for the plaintiffs. Upon this verdict a judgment was rendered, from which defendants have prosecuted this appeal.</p>

Hearing on ail appeal by the defendant from a judgment for want of a sufficient affidavit of defense of the Supreme Court of the District of Columbia, in an action by a landlord for possession of demised land.

Hearing on an appeal by tbe defendant from a decree of tbe Supreme Court of the District of Columbia, sitting as an equity court, vacating as fraudulent the assignment of an interest in a decedent’s estate. The facts are stated in the opinion.

<p>Police Regulations; Street Railways.</p> <p>A prosecution in the police court for violation of see. 17, art 12, Police Regulations, D. C., relating to headlights on street railway cars, will not lie, as such regulation was repealed and superseded by sec. 16 of the act of Congress of May 23, 1908 (35 Stat. at L. 246, chap. 190), giving the Interstate Commerce Commission the power to make regulations requiring such railroads to operate their cars with “proper and safe power, equipment, appliances, and service.”</p>

<p>Master and Servant; Negligence; Fellow Servants.</p> <p>1. Where it is a part of the duty of the servant to furnish the appliances necessary to successfully carry out his work, and the duty devolves upon the master of furnishing the material from which the appliances are to be constructed, if the master furnishes sufficient material of good quality, and the servant is injured through the negligent and defective construction of the appliances, in the absence. of the commission of some personal wrong by the master, negligence cannot be imputed to him, and he cannot be held liable for the injury.</p> <p>2. A master is liable for the negligence of his foreman, resulting in an injury to one of his servants, only when the foreman is performing duties which the master owes to his servant; in other matters the foreman, in his relation to the other servants, is not a vice principal, but a fellow servant.</p> <p>3. In an action by a steam fitter against his employer, for injuries received by the breaking of a plank across a scaffolding, on which plank the plaintiff was standing while passing pipes from one side of the corridor of a building to the other, the trial court properly directs a verdict for the defendant, where it appears that it was the duty of the steam fitters in the defendant’s employ to erect their own scaffolding from material furnished, by the defendant; that the scaf- . folding in question had been erected by a fellow servant of the plaintiff while the plaintiff was at work in another part of the building; that the foreman directed the plaintiff to use it in passing the pipes; and at the time there were other planks on the floor which might have been used by the plaintiff for strengthening the runway of the scaffold and making it safe.</p>