Volume 39 — Appeals, District of Columbia

<p>Hearing on an appeal from a judgment of the Supreme Court of the District of Columbia, quashing the finding and sentence of the Police Trial Board of the District of Columbia, and the affirmance thereof on appeal by the Commissioners of the District of Columbia, whereby the appellee was removed</p> <p>from the police force..</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This appeal is from a judgment in the supreme court of the District in a certiorari proceeding quashing the finding and sentence of the police trial board of the District of Columbia, and the affirmance of said finding and sentence by the Commissioners of the District, by which finding and sentence the appellee, Creamer, was removed from the police force.</p> <p>On August 3, 1911, the major and superintendent of police filed four charges against Mr. Creamer, a private of the police force. These charges all grew out of the discovery of Creamer, while on duty, in a private garage, by a police sergeant, who asked Creamer'why he was there. To this question Creamer replied that he was there on police business, and when asked by the sergeant the nature of thát business he declined to. answer, saying that he would inform the trial board. Thereupon the sergeant called up the acting lieutenant in charge of the precinct, who immediately repaired to the place where the sergeant and Creamer then were. The lieutenant, after being informed of the circumstances under which Creamer had been discovered in the garage, asked him if it were true that he was in the place on police business. Upon being answered in the affirmative, the lieutenant asked the nature of the business, to which Creamer replied: “I will tell that to the trial board.” The lieutenant then reminded Creamer that, being “in charge of the precinct, it was his duty to tell me of any police business that had taken him to the place, and if he was there for any other reason, he did not have to make a statement.” Again Creamer declined to answer. After due notice a trial was had before the police board, at which Creamer appeared in person and by counsel. Witnesses were introduced for both the prosecution and defense. No objection was raised by Creamer, either as to the form or sufficiency of the complaint. The finding of the board was not guilty as to the first, second, and third charges, and guilty as to the fourth, with a sentence of dismissal. The fourth charge is as follows:</p> <p>“Charge IV. Failing to obey the orders of his superior officers, in violation of see. 142 of the manual governing the metropolitan police force.</p> <p>“Specification 1. That the private aforesaid, on the date and at or about the hour aforesaid, when directed by his superior officer, Sergeant T. E. Bean, to inform him as to the nature of his business in the premises aforesaid, did refuse to do so.</p> <p>“Specification 2. That the private aforesaid, on the date aforesaid and at or about the hour of 7:52 o’clock, n. m., when directed by his superior officer, Acting Lieutenant J. H. Lutton, to inform him as to the nature of his business in the premises aforesaid, did refuse to do so.”</p> <p>Thereupon an appeal was taken to the Commissioners and a hearing had before them, which resulted in an affirmance of the finding and sentence of the trial board.</p>

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

Hearing on appeals from judgments of tbe Supreme Court of tbe District of Columbia rendered against appellants for failure to file a sufficient affidavit of defense. Tbe Court in tbe opinion stated tbe facts as follows: These are separate appeals by defendants in tbe same action, from a judgment entered under common law rule 73 of tbe supreme court of tbe District.

Hearing on appeals from judgments of the Supreme Court of the District of Columbia rendered against appellants for failure to file a sufficient affidavit of defense. The facts are stated in Waters v. Pearson, ante, 10.

Hearing on an appeal by tbe defendant from a decree of tbe Supreme Court of the District of Columbia setting aside and vacating deeds of real estate. Tbe Court in tbe opinion stated tbe facts as follows: Tbis is an appeal from a decree in tbe supreme court of tbe District setting aside and vacating deeds of conveyance favorable to tbe appellant, tbe appellee, plaintiff below, being an heir at law of tbe deceased grantor.

Hearing on an appeal from a decree of the Supreme Court of the District of Columbia dismissing a bill for an accounting filed by the appellants.

<p>Hearing on an appeal from, the decision of the Supreme Court of the District of Columbia refusing a writ of mandamus to compel the Commissioner of Patents to set a date for final hearing and times for taking testimony on the question of priority in a dissolved interference proceeding.</p> <p>The facts are stated in the opinion.</p>

<p>Insane Persons; Statutes; Statute of Limitations.</p> <p>1. The provision of the act of February 23, 1905 (33 Stat. at L. 740, chap. 738, U. S. Comp. Stat. Supp. 1911, p. 1433), that if an insane person confined in the Government Hospital for the Insane has property, his committee shall reimburse the District of Columbia for moneys expended in earing for such insane person “up to the time of their appointment,” will not be given a retroactive effect, so as to entitle the District to recover sums expended prior to the date of such act in earing for an indigent lunatic who subsequently becomes entitled to the possession of an estate. (Mr. Chief Justice Siiepaed dissenting.)</p> <p>2. An act providing for the reimbursement of the District of Columbia, from the estates of lunatics confined in the Government Hospital for the Insane, of sums expended in their care and treatment, is inconsistent with, and prevents the bar of, the general statute of limitations, as against such a claim.</p>

Hearing on an appeal from a judgment entered by the Supreme Court of the District of Columbia on a verdict rendered by a jury against the appellants in an action to recover damages for the accidental killing of the appellee’s intestate. The Court in the opinion stated the facts as follows: On August 12, 1908, Coleman Brez was killed while riding as a passenger on a scenic railway at 'Chesapeake Beach, in Calvert county, Maryland.

Hearing on an appeal from a judgment of conviction of the Supreme Court of the District of Columbia in a criminal prosecution for embezzlement. The facts are stated in the opinion.

Hearing on appeal from decrees of tbe Supreme Court of the District of Columbia relating to the disposition of a fund on deposit in bank in control of the court. The Court in the opinion stated the facts as follows: These appeals all relate to the disposition that should be made of a certain fund on deposit in bank in control of the court.

<p>Deeds; Lute Tenants; Remainders; Rule in Shelley’s Case.</p> <p>1. Under a deed conveying a life estate to the children of the grantor, with remainders to their children as tenants in common in fee simple, the remainders vest in the ehild first born to one of the life tenants, as sole representative of a class, which, however, ia liable to be augmented by the birth of other children.</p> <p>2. A grantor who conveys premises to his children for life, with remainders to their children as tenants in common in fee simple, intends that the latter shall take directly from him as purchasers, and! not by devolution from their parents; and such intent will be given effect to the exclusion of the rule in Shelley’s Case. (Citing Vogt v. Vogt, 26 App. D. C. 46, and Vogt v. Graff, 33 App. D. C. 356.)</p>

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia sustaining a demurrer to the declaration in an action upon a bond.

Hearing on an appeal from a decision of the Commissioner of Patents denying an application for the cancelation of the registration of a trademark. The Court in the opinion stated the facts as follows: Deitsch Brothers appeal from a decision of the Commissioner of Patents denying an application for the cancelation of the registration of a trademark.

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

<p>Hearing oh 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>

<p>Patents; Interference; Diligence; Priority.</p> <p>One who delays filing an application for a patent covering an invention relating to the reforging of worn steel ear wheels, for nearly two years, during which time he was engaged in the construction of a large plant for the manufacture of car wheels, and had all the facilities at hand for speedily testing his invention, which did not require special or novel machinery to produce it, and was not of doubtful utility, does not show, as against one who meanwhile conceived the invention and filed the application, such diligence as entitles him to an award of priority.</p>

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

<p>Patents; Interference; Counts; Construction.</p> <p>Counts in issue in an interference proceeding, relating to a registering device for adding and listing numbers, do not call for a number of operative racks or actuators equal to the elements of each group of totalizers, where they describe “a plurality of totalizers, each comprising a series of denominational elements and a laterally extending rod on which all said elements are mounted in alignment, of a plurality of differentially movable totalizer operating racks also mounted in lateral alignment;” but a count does call for an equal number where it expressly specifies a plurality of such operating racks “equaling in number the denominational elements of any one of the totalizers.”</p>

<p>Patents; Automatic Telephone System; Construction oe Claims.</p> <p>While the issue in an interference case will not be strained to cover an invention to which it does not naturally apply, and in case of doubt or ambiguity, the issue will be read in the light of the specifications in which it first appeared, real, and not artificial, distinctions must be found in the involved applications.</p>

<p>Trademark; Abandonment.</p> <p>A concern which for five years wholly discontinued the use of a trademark employed to designate a brand of coffee, the sales of which had been for several years inconsequential, will be held to have discontinued the use of the trademark, with intent to abandon it, where it seeks to resume its 'use after a rival concern has established a good business under it. (Citing Mwthy v. Republic Metalware Oo. 35 App. D. C. 151.)</p>

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

Hearing on an appeal by tbe relator in a mandamus proceeding, from a judgment of tbe Supreme Court of tbe District of Columbia dismissing appellant’s petition for a writ of mandamus to compel appellees to issue a patent to the relator for certain public land.

Hearing on an appeal by legatees from a decree of tbe Supreme Court of the District of Columbia sitting as an equity court, construing a will, and holding legacies to be specific legacies and adeemed. The Court in the opinion stated the facts as follows: This is an appeal from a decree construing the will of Rosa G. Simms, deceased, and directing the distribution of her estate. Rosa Gr.

<p>Appeal and Ebrob; Bill oe Exceptions.</p> <p>1. The court may, of its own motion, decline to consider a bill of exceptions which palpably violates rule 5, ¶ 4, by unnecessarily including remarks of the court or of counsel, or by giving questions and answers, instead of condensing the evidence into narrative form, unless exceptional conditions render question and answer important to the elucidation of a particular circumstance. (Citing Capital Traction Co. v. Crump, 35 App. D. C. 174.)</p> <p>2. An appeal cannot be dismissed for want of a proper bill of exceptions, since it is a matter of right under the law, notwithstanding that it may be of no avail if the bill of exceptions be stricken out for want of compliance with the rule. (Following Raymond v. United States, 26 App. I>. C. 250-256.)</p> <p>3. Unnecessary parts of a bill of exceptions which do not embody exceptions reserved to rulings of the court on the admission or exclusion of evidence will be stricken out on motion, but if no such motion is made, the court will exercise its discretion when it comes to consider such portions of the bill as present the sufficiency of the evidence to warrant submission of the case to the jury.</p> <p>4. If one general bill of exceptions embodies not only special exceptions to rulings of the court on the introduction of evidence, but also to the direction of -a verdict, some of which exceptions may be properly presented and others not, the motion to strike out should point out the particular grounds of objection.</p>

<p>Wills; Evidence; Testamentary Capacity; Undue Influence; Questions fob Juey; Presumptions.</p> <p>1. The evidence is sufficient to take to the jury the question of the mental capacity of the testatrix to make a will, where four witnesses expressed the opinion that she was of unsound mind, and related the circumstances upon which their conclusions were based, and the conduct of the testatrix for almost three months prior to her death, as disclosed by the testimony of a number of witnesses, showed a marked change in her habits and bore the symptoms of insanity.</p> <p>2. It is competent for the court to submit to the jury all the. circumstances concerning the execution of a will, and when it appears that confidential relations existed between the testatrix and the principal beneficiary, it is for the jury to infer from all the evidence before it whether or not the execution of the will was the result of improper inducement or fraud.</p> <p>3. That the executor and residuary legatee, who was looking after the business affairs of the testatrix, was present when she produced a memorandum of the disposition she desired made of her property; knew that his brother, his wife, and he were the chief legatees, and, after suggesting that a will be drawn in legal'form, had one prepared, leaving out, on'the ground that it might give the impression of undue influence, a small bequest to the matron of the hospital where the testatrix was being cared for; and that he summoned witnesses and supervised the execution of the instrument,—raises a presumption of undue influence, and casts upon him the duty of rebutting it by showing that the will was made as the free and voluntary act of the testatrix.</p>

Hearing on an appeal by tbe relator from a judgment of tbe Supreme Court of the District of Columbia overruling his demurrer to an… Held: by the Secretary of the Interior, that a good and sufficient protest had been made and filed in the land department against said Cox entry within two years from the date of issuance of the receiver’s receipt upon said entry, and the said protest and proceeding thus initiated continued up to the time of the cancelation of the entry.”…

Hearing on an appeal by tbe relator from a judgment of tbe Supreme Court of the District of Columbia dismissing appellant’s petition for a writ of mandamus, to compel appellees, tbe Secretary of tbe Interior and tbe Commissioner of tbe General Land Office, to revoke tbe cancelation of tbe entry to certain public lands and to issue a patent tberefor. Tbe facts are stated in tbe opinion.

<p>Attorney and Client; Contracts; Liens; Equity; Compensation; Appeal and Error.</p> <p>1. The provision in a contract with an attorney, whereby he is to receive a percentage of the amount recovered upon a claim, will stand, although a further provision giving him a lien therefor is void under U. S. Rev. Stat. sec. 3477, U. S. Comp. Stat. 1901, p. 2320, forbidding the assignments of claims against the United States.</p> <p>2. A client may, at any stage of the proceedings, displace an attorney ■whose compensation is to be a percentage of the recovery, remaining liable to him for the reasonable value of services already rendered.</p> <p>S. The general lien in favor of an attorney employed, for a percentage of the recovery, to prosecute a claim against the United States, does not extend to a fund rendered available by a decree obtained by his successor in the case, who was employed after the former’s failure for two years to take further steps following the refusal of the Secretary of the Treasury to pay the claim in pursuance of an act of Congress procured by the first attorney, which referred the claim to the Secretary for examination and payment.</p> <p>4. That an executrix is insolvent, and intends to remove from the jurisdiction of the court a fund available for the payment of a claim against her testator by attorneys who have no lien, but who had a contract with the testator to pay them a percentage of the amount that might be recovered on a claim against the government, will not give equity jurisdiction to entertain a suit by the attorneys to enforce their demand, as they have an adequate remedy in the probate court, by motion, to require the executrix to give an adequate bond, as such, in default of which her letters will be revoked.</p> <p>5. One consenting to a final judgment or decree in a court having jurisdiction of the subject-matter will not be heard to complain of error therein on appeal or writ of error (following Gcmss v. Goldenberg, post, 606) ; and an interlocutory decree may also be binding and work an estoppel in eases where it is expressly made for a particular purpose and to procure some benefit.</p> <p>6. In a suit in equity to enforce a lien upon a fund, no more of the fund will be retained, subject to the process of the court pending the final determination of the cause, than is sufficient to satisfy the complainant’s alleged lien, and costs of suit.</p> <p>7. If the recitals of an interlocutory decree, consented to by the defendant, supplemented by his answer, amount to a waiver of the question of jurisdiction, such waiver will justify an appellate court, on an appeal from the final decree, in exercising its disci-etion in retaining the cause for hearing on its merits. (Following Tyler v. Moses, 13 App. D. C. 428.)</p> <p>8. The reasonable value of the services of an attorney superseded without cause in the prosecution of a claim is not measured by a provision in tlie contract of employment, whereby he was to receive a percentage of the amount recovered.</p> <p>8. An attorney employed to prosecute a claim for a percentage of the recovery, who is superseded after his delay for two years to take any further steps following the disallowance of the claim, in circumstánces indicating his disinclination to pursue it further, is not entitled to compensation for services rendered before his supersession.</p> <p>10. Testimony by the complainants’ attorneys, in a suit to enforce a contract for fees with a deceased client, as to statements made by the decedent during his lifetime, are inadmissible, under sec. 1064, D. C. Code (31 Stat. at L. 1357, chap. 854), while similar testimony by attorneys, who were associated with the complainant and under contract with them for participation in the fees is of doubtful competency.</p> <p>11. An appeal to the United States Supreme Court, from a decision of this court, denying the validity of an attorney’s contractual lien, will not be allowed upon the ground that the construction of sec. 3477, U. S. Rev. Stat. U. S. Comp. Stat. 1901, p. 2320, a law of the United States, has been drawn into question by the defendants, where a previous decision of that court has held such a lien void under that statute, for the reason that the construction of the statute cannot be drawn into question, as the question is no longer an open one.</p>

<p>Master and Servant; Peace of Work; Ladder; Contributory Negligence; Evidence.</p> <p>1. A ladder in a fixed position, winch the master undertakes to furnish and supervise for use by servants in the construction of a building, is not a tool, but a place of work, for the unsafe condition of which he cannot escape liability upon the ground that it was negligently adjusted by a fellow servant.</p> <p>2. A servant who, in attempting his first descent of a fixed ladder which he has ascended but once, steps upon a rung which affords an insecure foothold because of its proximity to a projection slightly below the landing, will not be held guilty of contributory negligence per se, where he testifies that he did not notice the condition, and other witnesses state that their knowledge of it was gained by slipping from the rung.</p> <p>3. A master may, in the absence of countervailing evidence, be found to have undertaken to furnish and supervise a ladder so as to render it a place of work, rather than a tool, where, being securely fastened in a building under construction, it remained in a fixed position for many weeks as the sole means by which his employees of all classes passed from floor to floor. ( Distinguishing Oollins v. John W. Danforth Oo. 36 App. D. 0. 598.)</p>

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia entered upon motion by the plaintiff for want of a sufficient affidavit of defense in an action to recover the purchase price of lumber. The facts are stated in the opinion.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover the reasonable value of services rendered by the plaintiff as physician and surgeon to defendant’s testator. The facts are stated in the opinion.

<p>Hearing on appeal by the defendants from a judgment of the Supreme Court for the District of Columbia granting an injunction to restrain interference by the defendants with the maintenance of-electric lamps in front of certain premises which «complainant had contracted to supply with light.</p> <p>The facts are stated in the opinion.</p>

<p>Principal and Agent; Corporations; Variance; Direction of Verdict.</p> <p>1. A party dealing with the agent of a corporation must at his peril ascertain what authority the agent possesses, and is not at liberty to charge the corporation by relying upon the assumption of authority.</p> <p>.2. In an action to recover commissions alleged to be due under a contract of employment, the court should direct a verdict for the defendant, where a fatal variance exists between the contract alleged and the contract proved. (Following Eamburg-Bremen Ins. Go. v. Lewis, 4 App. D. C. 66; District of Golumbia v. Donaldson, 38 App. D. C. 259.)</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 vesting the title to certain real estate in certain of the parties to the action.

Hearing on appeal by the plaintiffs from a decree of the Supreme Court of the District of Columbia dismissing a bill to enjoin the cancelation of a lease.

<p>Deed of Trust; Redemption; Parties; Demurrer.</p> <p>Persons claiming under one to whom property was sold under a deed of trust are necessary parties to suit brought by the grantor to redeem the property from a sale under a prior deed of trust, and the failure to make them parties renders the hill of complaint demurrable, notwithstanding an averment that the plaintiff has arranged with such ■persons to redeem the premises.</p>

Hearing on motion to vacate on order dismissing an appeal by complainant from a decree of tbe Supreme Court of tbe District of Columbia sustaining a demurrer to a bill of review and! dismissing tbe bill.

Hearing on. appeal by tbe plaintiffs from a decree of the Supreme Court of the District of Columbia dismissing a petition to enjoin the construction of a railroad bridge.

Hearing on an appeal by respondent from an order of the Supreme Court of the District of Columbia to pay to complainant, his client, money collected for her.

<p>Intoxicating Liquors; Excise Board; Parties; Intervention; Executors; License; Appeal.</p> <p>1. The excise board of the District of Columbia lias been charged by Congress with the general supervision and control of the sale of intoxicating liquors in the District, and is a proper party to intervene to obtain the vacation of an order made by the supreme court of the District, sitting as a probate court, authorizing and directing executors to continue a retail liquor business theretofore conducted by their testatrix after the board had rejected an application for the transfer of the license to one acting for the executors.</p> <p>2. A license to sell intoxicating liquors is a mere permit, personal to the licensee, and is not transferable unless the right is expressly conferred by statute; and then only upon compliance with the provisions of the statute relating to the transfer.</p> <p>.3. Where a licensee to sell intoxicating liquors has no right under the statute to transfer his license during his life, his legal representatives have no greater power to make such a transfer than he possessed.</p> <p>•4. Exclusive jurisdiction over the granting of licenses to sell intoxicating liquors in the District of Columbia having been conferred by Congress upon the excise board of the District by the act of March 3, 1893 (27 Stat. at L. 563, chap. 204), the supreme court of the District sitting as a probate court is without jurisdiction to issue an order authorizing and directing executors to continue a retail liquor business theretofore operated by their testatrix, where an application on behalf of the executors for a transfer of the license under which the business had been conducted had been previously rejected by the board. (Citing Bush v. District of Columbia, 1 App. D. C. 1, and Gassenheimer v. District of Columbia, 6 App. D. C. 108).</p> <p>.5. Where the probate court permitted the filing of an intervening petition seeking the vacation of a previous order made by it, considered the petition upon its merits and entered an order denying it, an appeal by the intervenors is properly taken from the order denying their petition and not from the previous order.</p>

Hearing on appeal by the defendant from a decree of tbe Supreme Court of the District of Columbia in favor of plaintiff in a suit for alleged infringement of a patent granted to Thomas A. Edison for a moving picture film. The facts are stated in the opinion.

Hearing on appeal by the plaintiffs from a decree of the Supreme Court of the District of Columbia dismissing a bill filéd to obtain possession of corporate stock held in trust by certain of the… Held: and. up to the present time no meeting in fact has been held.

ITkaring on. appeal by tbe defendant from a judgment of tbe Supreme Court of the District of Columbia on verdict'in an action to recover damages for personal injuries. The Court in the opinion stated the facts as follows: This is an appeal from a judgment in an action of damages for personal injuries.

<p>Insurance; Estoppel; Forfeiture; Direction of Verdict.</p> <p>1. Forfeitures which are the result of technical provisions in contracts of insurance, are not looked upon favorably by the courts (following National Benefit Asso. v. Mleie, 35 App. D. C. 294) especially in the-case of so-called industrial policies issued to illiterate persons.</p> <p>2. An insurance company which for seven months after a policy of life insurance had lapsed, according to its terms, by reason of the nonpayment of premiums for more than four weeks, continues, with full knowledge of that fact, to send its collector to solicit and receive payment of premiums, which he transmitted to the company, without insisting upon a certificate of health, which it was entitled to demand, is estopped from claiming a forfeiture. (Citing Union 8. L. I. & T. Co. v. Bond, 16 App. D. C. 579.)</p> <p>3. It is not error for the court in an action upon an insurance policy, to direct a verdict for the plaintiff on the ground that the company had estopped itself from claiming a forfeiture, instead of permitting the jury to determine whether the company had waived the forfeiture provisions, where the company demanded, collected, and retained premiums after, under the strict letter of the policy, it had lapsed, and accepted all arrearages and premiums subsequently accruing, without insisting upon a certificate of health, which it was entitled to demand—although it would possibly he better to permit the jury to determine whether upon the whole evidence the company had not waived the forfeiture provisions of the policy. (Citing Union Security L. Ins. <& T. Co. v. Bond, 16 App. D. C. 579, and National Benefit Asso. v. Bleie, 35 App. D. C. 294.)</p>

Hearing on appeal by the defendant from a judgment of the Supreme Court of the District of Columbia granting plaintiff’s motion for judgment non obstante veredicto in a certiorari proceeding to test the validity of a special assessment.

<p>Hearing on appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia on verdict in an action for money had and received.</p> <p>Tbe Court in tbe opinion stated tbe facts as follows:</p> <p>Appellee, Virginia B. Travers, executrix of tbe estate of Richard B. Travers, deceased, plaintiff below, sued defendant, J. Barton Miller, in tbe supreme court of tbe District of Columbia for money bad and received. Tbe declaration is in 'assumpsit and contains only tbe common counts. In tbe bill of particulars it was alleged that tbe money was furnished defendant for tbe purpose of paying .a note secured by a deed of trust on certain real estate in tbe city of Washington which plaintiff bad purchased through defendant, as agent.</p> <p>It appears that tbe defendant was at tbe time of this transaction president, secretary, and treasurer of tbe Miller-Shoemaker Real Estate Company, a corporation engaged in tbe real estate business in this District. Plaintiff entered into an .agreement with tbe corporation to purchase the property in question for the sum of $1,600, and paid $400 on account. He was informed by defendant, with whom all the transactions were conducted, that the property was encumbered by a deed of trust for $1,200. Subsequently, plaintiff went to defendant for the purpose of closing up the transaction, and paid defendant $1,200 by two checks made payable to the Miller-Shoemaker Company, on the agreement of defendant, as plaintiff testifies, that he would apply the money to the payment of the trust. Defendant deposited the money to the credit of the corporation, whose indorsement, placed there by defendant, appears upon the back of each of the checks. Defendant delivered to plaintiff a deed to the premises.</p> <p>Defendant admits receiving the money and delivering the deed, but testifies that he received the money for the corporation and deposited it to its credit; that there were three outstanding tax deeds upon the property, which took considerable time to acquire, and that he secured two of them; but before he received the third, the corporation became involved in litigation, which caused it to suspend business. The trust was not paid. This suit is for the recovery of a judgment for the amount paid defendant. A verdict was rendered in the court below for plaintiff for the full amount, together with interest. From the judgment thereon this cause comes here on appeal.</p>

<p>Motion to dismiss appeal for want of sufficient assignment ,o£ errors.</p>

<p>Hearing- on appeal by the defendant from a judgment of the Supreme Court of the District of Columbia entered on motion by the plaintiff for want of sufficient affidavit of defense in an action to recover possession of certain premises.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is a landlord and tenant proceeding begun in the municipal court of the District of Columbia; where a judgment was entered in favor of appellee, Thomas B. Love, plaintiff below. Appeal was taken by defendant Sylvanus A. Nicolopole,, appellant here, to the supreme court of the District. An affidavit of merit, as required by rule 19 of the court, was filed by plaintiff, to which defendant replied by an affidavit of defense. On motion of plaintiff, judgment was entered for plaintiff upon the insufficiency of 'defendant’s affidavit of defense. From the judgment, appeal was taken to this court.</p> <p>It appears that on October 1, 1910, plaintiff leased to defendant premises known as “the first-floor store” at 1427 Pennsylvania avenue, Northwest, in this city, for the term of three years. The lease contained the following provision: “The' parties hereto expressly agree that in the event the party of the-first part shall sell or convey the property hereby leased to a grantee who shall not be willing to allow the said party of the-second part to retain the premises hereby demised to the full end of the term hereby created, or shall tear down to rebuild the building in which the said premises hereby leased are, during the term of this lease, that he, the said party of the first part, shall give the party of the second part sixty days’ written notice to vacate, which notice shall be served by leaving a copy of the same' upon the said demised premises, and at the expiration of the-said sixty days this lease shall he at an end as fully as if made in express terms to expire at that time; and the said party of' the first part, his heirs, and assigns shall be entitled to the possession of said demised premises without any other or further demand or notice; and the party of the second part will promptly vacate and surrender the same; and the party of the second part shall pay the rent proportioned to the time of such surrender of the said premises.”</p> <p>More than a year after the execution of the lease, plaintiff leased the premises in question, lot number 5, in square number 225, in the city of Washington, improved by buildings: numbered 1423, 1425, and 1427 Pennsylvania avenue, Northwest, to Childs Company, a corporation of the State of New York. This agreement contained the following provision:. “That upon the commencement of the aforesaid term, the party of the second part will tear down the building upon the said premises, and rebuild the same by erecting a building of one or more stories at a cost of not less than twenty-five thousand dollars ($25,000); to be constructed and to look equally as well as the building at No. 36 West Thirty-fourth street, in the city of New York, without necessarily resembling the said building in general detail; and the said party of the second part will protect, save harmless, and keep indemnified, any and all loss,, cost, damage, and expense, mechanics’ liens, claims of materialmen, laborers, contractors, subcontractors, and any and all other claimants, including counsel fees, in any manner connected with, concerned in, or growing out of, the erection or construction of the building so to be erected as aforesaid, or the' rebuilding thereof as hereinafter provided.”</p> <p>Plaintiff’s affidavit, after setting forth the foregoing contracts, recites the giving of due notice to quit in accordance with the terms of the lease, and alleges that defendant’s tenancy and estate in the demised premises have been determined and have expired, and plaintiff is therefore entitled to judgment for-possession. Defendant in his affidavit admits the execution of the leases, but denies the right of plaintiff to possession, and sets, up a conversation between himself and plaintiff at the time of its. execution, as to the meaning of the clause in their lease under which it is sought to evict him, alleging “that there were only-two conditions upon which he could be required thereunder to-vacate said premises, which were in case there was a change of' title to some other owner who should be unwilling for him to remain on the premises, or in case the plaintiff himself should ■tear down to rebuild said building;” but that plaintiff assured Jiini “that he had no idea of tearing down the building to rebuild within the said three years, and that in case he should fear down to rebuild, upon the completion of the building on the premises, he would let defendant occupy such part thereof as anight be required for his business for the remainder of the full ■term. * * * Defendant says that he was led to believe, ■and now believes, from the said statements made by plaintiff ■concerning the provisions contained in said lease, that they relate solely and entirely to the owner of the premises, and do not relate to, and were not intended to be for, the advantage of ■any subsequent tenant or tenants of the owner,”</p>

<p>Appeal and Error; Municipal Court.</p> <p>1. The appeal, in case of the refusal of the supreme court of the District. of Columbia to set aside its affirmance of a judgment of the municipal court, should .be taken from the judgment of affirmance, and not from the refusal to set it aside. (Following Tubman v. B. <&■ O. R. Oo. 20 App. D. C. 541).</p> <p>2. A judgment on appeal adverse to the appellant, based upon his failure to perfect the appeal within the statutory period allowed after the' approval of the appeal bond, is not subject to attack by him upon' the ground that the clerk of the trial court failed promptly to file' the papers in the court of appeal and give him notice thereof as required by a statute designed to apprise him of the approval of" the bond, where his bond was approved as of course when it was. filed.</p> <p>3. Sundays and legal holidays are not to be counted in computing the ten< days within which the appellant is required to prosecute his appeal' from the municipal court, after the approval of the appeal bond.. (Construing secs. 75, 76, and 1389, Code D. C.)</p>

Hearing on appeal by the defendant from a decree of the Supreme Court of the District of Columbia fixing the value of property for the purpose of ascertaining the annual rental. The facts are stated in. the opinion.

Hearing on appeal by the defendant from a judgment of the Supreme Court of the District of Columbia on a verdict directed by the court in an action on a supersedeas bond in which the appellant was surety. The Court in the opinion stated the facts as follows: Appeal from a judgment, under the 73d rule, in the supreme court of the District in favor of the appellee, Security Trust Company, a corporation.

<p>Patents; Interference; Priority oe Invention; Originality.</p> <p>1. The inventor of an appliance, the dates of whose conception, reduction to practice, and application in the Patent Office are earlier than • those claimed by another, is entitled to an award of priority, especially where the latter is chargeable with lack of originality.</p> <p>2. As between two patent applicants presenting substantially the same device, lack of originality will defeat the one who obtained information concerning the other’s invention before doing any work upon the invention himself, acting for his employer to whom he assigned ■his application, and to whom the other had previously disclosed his invention, and contracted for its control upon a royalty basis.</p>

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

Hearing on a petition for a writ of mandamus to one of the justices of the Supreme Court of the District of Columbia to compel him to settle a bill of exceptions. The facts are stated in the opinion.

<p>Appeal and Error; Mandamus; Officers; Army and Navy.</p> <p>A. writ of error to the Supreme Court of the United States will not be-allowed to review a judgment of this court, refusing a naval officer a. mandamus to compel the Secretary of the Navy to place relator’s name upon the retired list with the rank of rear admiral, when suehofficer has been retired by order of the President with the grade of captain. (Following United States eco rel. Jones v. Fisher, 38 App.. D. C. 53.)</p>

Hearing- on an appeal by the defendant from a judgment of the supreme court of the District of Columbia in favor of the plaintiff in a landlord and tenant proceeding for the recovery of possession of certain described real estate in the city of Washington. The facts are stated in the opinion.

Hearing on an appeal by the United States, from an order ■of the Supreme Court of the District of Columbia sitting as a ■Criminal Court, vacating a judgment forfeiting a recognizance. The Court in the opinion stated the facts as follows: The United States appeal from an order vacating a judgment ■forfeiting a recognizance.

Hearing on an appeal by tbe United States, from an order of tbe Supreme Court, of tbe District of Columbia, sitting as a Criminal Court, vacating a judgment forfeiting a recognizance. Tbe facts are stated in tbe opinion.

Hearing ou an appeal by the petitioners from an order of the Supreme Court, of the District of Columbia, dismissing a petition for the condemnation of lands for the opening of an alley;, and of a motion to dismiss the appeal. The facts are stated in the opinion.

<p>Statutes; Intoxicating Liqtjoes; Infants; Forfeiture of License.</p> <p>1. Where a judgment of conviction of one found guilty in the police court of selling intoxicating liquor to a minor, imposed a fine and provided that in default of its payment the accused be imprisoned, the fact that the accused paid the fine before the settling of a bill of exceptions-taken by the prosecution for the purpose of reviewing the judgment on the ground that it should have included as part thereof the revocation of the license of the accused, will not entitle the defendant in error to a dismissal of the writ of error by this court; the acceptance of the fine by the proper officer of the police court in the discharge of his duty not working an estoppel upon the prosecution to question the form of the judgment entered.</p> <p>2. Statutes regulating the sale and dispensation of intoxicating liquors in this District will be given a liberal and reasonable construction in view of their remedial objects and purposes, so as to effect the same.. (Citing Lauer v. District of Columbia,, 11 App. D. C. 453, 457; District of Columbia v. Demit, 31 App. D. C. 326-331; United States ear, rel. Stevens v. Richards, 33 App. D. C. 410-417.)</p> <p>3. Statutes should receive a sensible construction, such as will effect the legislative intention, and, if possible, so as to avoid an unjust or an absurd conclusion. (Following Fields v. United States, 27 App. D. C. 433.)</p> <p>4. The act of Congress of April 28, 1904 (33 Stat. at L. 565, chap. 1815) enacted as an amendment to the law relating to taxation, making it unlawful for the licensee, owner, proprietor, or any employee of the licensee, owner, or proprietor, of any barroom or other establishment in the District of Columbia, in which intoxicating liquors of any kind are sold, to sell, give, or dispense in any manner intoxicating liquors of any kind to any person under the age of twenty-one years, and providing that any person knowingly violating Sts provisions “shall be amenable to a fine of $25, or imprisonment ior thirty days, or both, in the discretion of the court, and in addition to such penalty the license for the place in which such intoxicating liquors were sold to a minor shall be revoked,” requires that ’.the license of one found guilty of and fined by the police court for dispensing intoxicating liquors to a girl under the age of twenty-one years should be revoked as a part of the penalty for such offense, and the judgment of conviction should so provide. The object of the statute is to prevent the consumption of liquor by minors, and not merely its sale to them.</p> <p>On Application for a Rehearing.</p> <p>■5. Section 8 of rule 25 of this court, adopted May 25, 1897, provides that “upon the decision and filing of opinion in the cases brought into this court on writ of error from the police court or the juvenile court, the mandate of this court shall at once issue without delay;” and a mandate issued in strict accordance with this section, requiring the police court to declare the forfeiture of a liquor license as a part of the penalty for dispensing liquor to a minor, is not improvidently issued.</p> <p>6. Objection that a license ordered by this court to be revoked has already . expired comes too late on a motion in the nature of an application for a rehearing, when, at the time the case was argued and submitted, counsel for the defendant must have known of the alleged expiration, but failed to suggest it upon the record, or otherwise bring it to the attention of the court.</p> <p>7. Counsel for defendant, having allowed the court to remain in ignorance of the alleged expiration of a license until its opinion had been delivered, cannot, on a motion in the nature of an application for a rehearing, object that the decision was merely that of a moot question.</p>

Hearing on an appeal by tbe defendant from a judgment of tbe supreme court of tbe District of Columbia in an action on a policy of life insurance. Tbe Court in tbe opinion stated tbe facts as follows: Tbe Metropolitan Life Insurance Company, defendant below, appeals from a judgment in an action on a policy of life insurance.

' Hearing on an appeal by tbe complainant in a snit in equity for an injunction from a decree of tbe Supreme Court of tbe District of Columbia dismissing bis petition. The facts are stated in the opinion.

Hearing ou an appeal from a decision of the Commissioner of Patents, rejecting a series of product claims in 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 in an interference.</p> <p>The facts are stated in the opinion.</p>

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

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

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

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

<p>Patents; Designs; Invention; Patentability.</p> <p>1. No invention is involved in the mere substitution of parallel ribs or prisms for spiral ones in a shade or reflector design; and the result of such substitution is properly denied a design patent.</p> <p>2. A claim for a design patent in prism glass shades or reflectors, in no sense referring to the design of the shade or reflector, but referring to the manner in which the light is distributed, relates to the mechanical function of the shade or to the results attained, and not to its ornamentation; and mere result or mechanical function in a device of this sort is not patentable. (Distinguishing In Re Mygatt, 26 App. D. C. 366.)</p>

Hearing on two appeals from different parts of the same decision of the Commissioner of Patents in an interference. The facts are stated in the opinion.

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

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

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

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

<p>Patents; Interference; Similarity of Construction.</p> <p>'The expression “pivoted directly to the lazy-tongs” as used in claims for a filing device does not signify that the pivots must also be pivots of the lazy-tongs, but simply means that the pivot upon which one member turns is directly secured in the other member; and where in an interference this is as true of the senior party’s device as of the junior party’s, the senior party is properly allowed to make claims for his device containing the words quoted.</p>

<p>Patents; Interference; Priority.</p> <p>Testimony based upon an ambiguous entry in a notebook, discovered by the-senior party to an interference after the testimony of the junior party, whose application disclosed priority of conception, and' unsupported by other documentary or satisfactory evidence, was held not sufficient to establish priority of conception.</p>

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

Hearing on an appeal by tbe defendants from a judgment of tbe Supreme Court of the District of Columbia in an action for damages growing out of an alleged unlawful and malicious seizure and detention of personal property. The facts are stated in the opinion.

Hearing on appeal by libelees from a decree of the supreme Court of the District of Columbia condemning flour for violation of the pure food act. The Court in the opinion stated the facts as follows: This is an appeal from a decree in the supreme court of the District condemning 447 sacks of “Princess Flour” and 72 sacks of “Fancy Melba Patent” flour, under a libel filed by the United States through its attorney in and for the District of Columbia.

<p>Appeal and Error; Bill of Exceptions.</p> <p>On an appeal by the plaintiff whose motion for the direction of a verdict in his favor, based upon specific grounds, had been denied by the ftr\a\ wsuA, a \ñ\\ oft excepten» w\M\ «kmi aft, ftengftftv ftftia ftesftftmony of forty-three witnesses, where a brief narration of the testimony of four witnesses, together with a few lines preserving exceptions to rulings on the admission and exclusion of evidence, and certain correspondence, would have sufficed, was upon motion stricken from the record for nonobservance of the court rule requiring bills of exception to be so prepared as to contain only such statements of fact as are necessary to show the bearing of the rulings complained of upon the issues. (Citing Capital Traction Co. v. Crump, 35 App. D. C. 169.)</p>

<p>Hearing oil motion by the appellee to strike the bill of exceptions from the record on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia upon verdict in an action on a promissory note.</p> <p>The facts are stated in the opinion.</p>

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

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

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

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

<p>Patents; Interference; Similarity of Claims; Res Ad judicata.</p> <p>1. The issue in an interference, not requiring a “pivoted brake operating, member” in a coaster-brake device to be pivoted in any particular manner is readable upon all the applications of a prior interference, all of which disclose a brake operating member pivoted in one manner or another.</p> <p>2. Where the issue in a two-party interference reads upon the applications. of both parties, and also upon those of an earlier three-party interferenee to which they were both parties, and in which one of them was awarded priority of invention, the question of priority as between them is res adjudicata, even though the application of the-unsuccessful party is not the one presented in the former proceeding, since both are disclosed in the present issue; and the unsuccessful party having failed to advance in the prior interference the claim now made by him, which was disclosed in the prior applications, has es-topped himself from setting it up. (Citing Blackford v. Wilder, 28 App. D. C. 535, and In re Marconi, 38 App. D. C. 286.)</p> <p>3. While, under the practice of the Patent Office, a two-party interference is declared where there are claims not readable upon the application of a third party, that is a mere matter of procedure, since the' two interferences are concurrently considered upon a single record.</p>

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

<p>Municipal Corporations; Streets and Highways; Consequential Damages; Constitutional Law.</p> <p>1. A statute authorizing the municipal authorities to acquire land for an approach to a bridge imposes upon them no obligation to do so, which will avail an abutter who seeks damages resulting to his property from the raising of the grade of a street for the purpose.</p> <p>2. Whatever injury results to corner property from the fact that an inclined approach to a bridge has been constructed in one of the streets, leaving a public thoroughfare 16 feet wide between the approach and the property, and leaving the cross street undisturbed, is purely consequential, and therefore is not a taking for which compensation must be made under the 5th Amendment to the Federal Constitution. (Citing Richards v. Washington Terminal Oo. 37 App. D. C. 289.)</p>

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

Hearing on an appeal by the complainant from a decree of -the Supreme Court of the District of Columbia dismissing a bill in equity to set aside an alleged fraudulent conveyance. The facts are stated in the opinion.

Hearing on appeal by tbe plaintiff from a decree of the-Supreme Court of tbe District of Columbia, bolding an Equity-Court, dismissing a bill filed to set aside a deed. Tbe Court in tbe opinion stated tbe facts as follows: Appellant, H. Eozier Dulany, as trustee in bankruptcy of Tbomas E. Waggaman, filed a bill in equity in tbe supreme court of tbe District of. Columbia to set aside a deed dated July-19, 1898, executed by Waggaman and wife to one Daniel B...

<p>Appeal and Ebeoe; Record; Opinion; Costs.</p> <p>1. Whether a party has included in the transcript parts of a record which are unnecessary to the determination of the case is a question to be passed upon on the hearing of the case, rather than on motion to limit the transcript of record.</p> <p>2. Costs unnecessarily incurred by incorporating in the transcript parts of the record not essential to a determination of the case will be adjudged against the party bringing up the record.</p> <p>3. The opinion of the trial court is-not a part of the record of a case, and 1 should be incorporated in the transcript only when in conformity with rule 5, sec. 1, paragraph (f), it concerns “the judgment, decree, or order appealed from.”</p>

Hearing on an appeal by tbe relator from a judgment of tbe Supreme Court of tbe District of Columbia dismissing a petition for a writ of mandamus to compel respondent to grant a bearing upon relator’s application for tbe reinstatement of a homestead entry. Tbe Court in tbe opinion stated tbe facts as follows: Eelator, Editb Gr.

<p>Patents; Interference; Negligence; Priority.</p> <p>1. Tbe unanimous rulings of tbe experts of the Patent office in an interference proceeding, that a subframe designed for the removal of the engine from a motor vehicle is a subframe within the meaning of the issue, and that, although the specific purpose of the parties is somewhat different, their general idea of removing the motor is the same, will not be disturbed, unless error is clearly apparent.</p> <p>2. Poverty of a party to an interference will not excuse a delay of ten years in reducing his invention to practice, although this would have involved considerable expense, especially where it does not appear that he was unable to pay the cost of preparing and prosecuting an application, which he failed to do. (Following Wyman v. Donnelly, 21 App. D. C. 81.)</p> <p>3. The party to an interference who was the first to conceive but the last to reduce the invention to practice is not entitled to an award of priority, unless he was exercising diligence at the time the other party entered the field, and the fact that the latter was also negligent is immaterial. (Citing Pawl v. Johnson, 23 App. D. C. 187.)</p>

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

Hearing on an appeal from a decision of the Commissioner of Patents rejecting an application for a patent. 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 sustaining a demurrer to the declaration and dismissing an action for the recovery of money paid as taxes under duress and protest, The facts are stated in the opinion.

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia convicting him of procuring a certain promissory note and money by false pretenses. Tbe Court in tbe opinion stated tbe facts as follows: Robert H. Partridge appeals from a conviction and sentence to three years’ confinement in tbe penitentiary, under an indictment for procuring a certain promissory note and money by false pretenses. Tbe indictment is in two counts.

Hearing on an appeal by the caveator from a decree of the-Supreme Court of the District of Columbia sitting as a probate court confirming the probate of a will and dismissing a caveat.. The Court in the opinion stated the facts as follows: This is an appeal from a decree in the supreme court of the District, confirming the probate of the will of Rose Eraemer «and dismissing the caveat of Carrie Bowen, appellant.

Hearing on appeal by tbe plaintiff from a judgment of tbe 'Supreme Court of tbe District of Columbia upon a verdict •directed by tbe court in an action to recover damages for personal injuries. The Court in tbe opinion stated the facts as follows: Tbe appellant, Janet Ross, sued tbe appellee, Washington Railway & Electric Company, for damages for injuries received in crossing tracks where tbe street bad been torn up.

Hearing on a motion to dismiss an appeal from an order ■of the Supreme Court of the District of Columbia, refusing to vacate a judgment of the Municipal Court docketed under •sec. 29 of the Code. The facts are stated in the opinion.

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

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia convicting him of seduction and overruling his motion for new trial.