Volume 40 — Appeals, District of Columbia

Hearing on an appeal by the plaintiff from an order of the Supreme Court of the District of Columbia quashing the service of the summons in an action brought to recover damages occasioned by alleged delay in the transportation of plaintiff from France to New York.

Hearing on an 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 a suit upon an agreement for a conditional sale of stock. The facts are stated in the opinion. 1. A corporation incorporated under the laws of the District of Columbia cannot make such a contract as the one sued upon. Clapp v. Peterson, 104 111. 30; 1 Beach, Priv.

Hearing on an appeal from a judgment of the Supreme Court of the District of Columbia confirming the verdict and assessment of a commission appointed to condemn for the use of the United States certain real estate belonging to the appellant.

<p>Patents; Interference; Reduction to Practice.</p> <p>1. The completion of a tripping mechanism forming part of a multicouple, multi-revolution printing machine, and its manipulation by hand,—which is the combination of co-ordinating elements for which a patent is sought,—does not amount to a reduction of the invention to practice, although such mechanism contains the new element in the patentable combination, where the object of the invention is control of the impression cylinders, that is, the function of the tripping device in the machine is to cause the impression cylinder to act in a predetermined manner, if, at the time of the test of the tripping mechanism, the rods connecting it with the cylinders were not on the machine, so that it could not be definitely determined whether the cylinder would trip in proper sequence.</p> <p>2. That a device consisting of a combination of elements designed to produce a desired result was perfected and ready for operation on a certain date does not constitute a reduction of the invention.to practice at that time, where it is not so simple in character as to demonstrate its usefulness without a test. (Following Sydenwm v. Thoma, 32 App. D. O. 362.)</p>

<p>Patents; Appeal and Ebbob; Intebfebence; Claims and Specifications.</p> <p>1. This court will not consider, at the instance of the appellee, and in support of the decision in an interference proceeding, the fact that the record does not contain the original application of the appellant, the date of which is merely recited in the patent issued thereon, where the question was not raised before the tribunals of the Patent Office, which had all the records before them.</p> <p>2. Where a drawing accompanying the specifications, but intended to be diagrammatic merely, is inconsistent with the intention expressed in the language of the claim, it will not be considered as part of the description in aid of the right to make the claim.</p> <p>3. Claims of one of the parties to an interference will not be so construed, at the instance of the other party, as to read into them limitations in order to exclude a device that is within their broad meaning.</p> <p>4. The inventor of a particular device who chooses to make claims broader than necessary to cover the same cannot ask, when thrown in interference with another inventor in the same general field, that they be limited to correspond with his own particular structure.</p> <p>5. The question of patentability is not involved in an interference.</p>

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.

Hearing on an appeal from a decision of the Commissioner of Patents, denying appellant’s petition that the Examiner be directed either to allow or reject his application for a design patent. The facts are stated in the opinion.

<p>Hearing oil an appeal from a decision of the Commissioner of Patents, sustaining a petition for the cancelation of a trademark registration.</p> <p>The facts are stated in the opinion.</p>

<p>Hearing on a motion to dismiss an appeal.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>Appellee, Maria F. Andrews, moves to dismiss the appeal on the ground that the transcript of the record was not filed in this court within the time required by its rules, which time had not been properly extended.</p> <p>The facts necessary to the determination of the motion are these: The action for damages was tried and resulted in a verdict for the defendant, upon which judgment was entered April 12, 1912. Notice of appeal was given and bond therefor filed in due time. The rule of the supreme court of the District allows thirty-eight days for the settlement of bills of exception, which time may be extended by order of court regularly made before the expiration of said time; and may be further extended in same manner.</p> <p>The record shows that on May 14, 1912, an order was entered extending the time for settling the bill of exceptions to June 15, 1912. June 14th this time was further extended to “June 29, 1912, Inc.;” and the time for filing transcript was extended “to July 20, Inc.” June 29, the time for each was extended to September 1, 1912, Inc.” September 1 was a Sunday, and September 2, (Monday) was a legal holiday. On September 3, 1912, an order was entered extending the time for settling the bill of exceptions and filing the transcript to October 1, 1912. These times were extended again on September 30 and November 27 to December 31, 1912. The bill was settled and the transcript filed before the last date.</p>

<p>Appeal and Error; Dismissal of Appeal; Parties; Appeal Bond.</p> <p>A general appeal prayed in open court mil not be dismissed on the ground that the petitioners for leave to intervene and to dismiss the appeal were not made parties to the appeal, since such an appeal brings up all adverse parties without citation; and if but one appellee is named as obligee in the appeal bond, an order will be made, if desired, requiring the appellant to file a new bond, to include all the appellees, although there would seem to be no necessity for so doing.</p>

<p>Hearing on an appeal by tbe complainant from a judgment of tbe Supreme Court of tbe District of Columbia, sitting as an equity court, dismissing a bill filed to restrain the defendants from establishing a public garage on a residence street.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>Appellant (Hiram B. Weeks), plaintiff below, filed a bill in the supreme court of the District of Columbia, seeking an injunction to restrain the several defendants (Christian Heurich and Augustus P. Coppes, trustees; the Commissioners of the District of Columbia, Cuno H. Rudolph, John A. Johnston, and W. V. Judson, a municipal corporation; Morris Hacker, inspector of buildings; the Terminal Taxicab Company, a corporation ; and the Davis Construction Company, a corporation; and William A. Richards, assessor of the District of Columbia), from establishing a public garage on a residence street in the city of Washington.</p> <p>The averments of the bill substantially are, that plaintiff is the owner of house No. 1918 N. street, northwest, which he occupies as a residence. Immediately around the corner, in the same block, on Twentieth street, defendants Heurich and Coppes, trustees, owned a certain building, No. 1229—1231 Twentieth street, fronting and opening on said street, at one time used as a brewery, but long since abandoned as such, and which was vacant and unoccupied at the time of plaintiff’s purchase and occupancy of his residence in 1909. The south line of plaintiff’s property is 30 feet from the north line of the brewery building. Prior to June 1, 1910, Heurich and Coppes, through their agents, agreed to sell the property to the Terminal Taxicab Company, provided a permit could be obtained from the city authorities to convert the building into a public garage and auto livery stable and repair shop. Being situated on a residence street, before the property could be converted into a public garage, under the ordinance in force, the consent of the owners of 75 percentum of the property within a radius of 200 feet of the proposed structure had to be procured.</p> <p>The consent of a sufficient number of property owners within the prescribed radius could not be obtained to authorize the issuance of the permit. On June 7, 1910, the vendor and vendee, through their agents, made application to the District Commissioners to change the regulation and reduce the requiréd percentage of consenting owners to 50 percentum. A hearing was set for June 17th (inadequate notice of which is alleged to have been given the property owners interested), which was attended by representatives of the vendor and vendee, the agents of the former stating that the reason for the desired change of the law was to enable them to consummate the proposed sale.</p> <p>It is also averred that on July 25, 1910, the agents of Heurich and Coppes applied to the building inspector of the District for a permit to conduct a garage, auto livery and machine shop on the premises in question as an alley garage, purporting to inclose the consent of sufficient property owners within the prescribed radius for this purpose, and asking the privilege of later furnishing the consent of an additional number sufficient to justify the granting of a permit for a residence street garage. On the following day a permit was issued to Heurich and Coppes to convert the building into a public alley garage, and a second permit “to install 5, 8, and 15 h. p. motors, machinery, and 50 h. p. boiler for auto repair on said property; also 2 lathes, 2 shapers, 2 grinders, 1 forge, 3 motors, all to comply with the regulations.” Shortly thereafter the deed was delivered by Heurich and Coppes, trustees, to the Terminal Taxicab Company.</p> <p>It is also averred that both before and after the meeting of June 17, 1910, plaintiff, through members of his family, occupying the residence with him, protested to the Commissioners and inspector of buildings of the District of Columbia against the issuance of any permit or permits whatever authorizing the establishment of said garage; but that “notwithstanding the protests thus made in complainant’s behalf, and in disregard of his rights, and in violation of law, the facts herein-</p> <p>of the 14th Amendment of the Constitution of the United States, and therefore no action of any kind could be founded upon its violation. Omaha Gas Co. v. Withnell, 78 Neb. 33, 8 L.R.A.(N.S.) 978, and cases in note therein; Laundry Ordinance Case, 7 Sawy. 526; Yicle Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220; Ex parte Sing Lee, 96 Cal. 354; St. Louis v. Bussell, 116 Mo. 248; St. Louis v. Howard, 119 Mo. 41; Til-ford v. Belknap, 126 Ky. 244; Dobbins v. Los Angeles, 195 U. S. 223; 2 Dill. Mun. Corp. § 695c. p. 1061 and note 1; United States v. Richards, 35 App. D. O. 540; Strasburger v. Commissioners, 5 Mackey, 389; McFarland v. Miller, 18 App. D. O. 554; Phillip v. Denver, 19 Colo. 179, 184.</p> <p>2.' A permit issued by the duly authorized authorities and once acted upon cannot be revoked. Buffalo v. Chadeayne, 7 N. Y. Supp. 501; Dainese v. Cooke (Dainese v. Public Worles), 91 U. S. 580, 23 L. ed. 251; Lowell v. Archambault, 189 Mass. 70, 1 L.R.A.(N.S.) 458; Hutchins v. Munn, 22 App. D. C. 88.</p> <p>3. The garage was not a nuisance per se. Stein v. Lyon, 91 App. Div. ‘593; Diocese of Trenton v. Toman, 70 Atl. 606, 611; Sherman v. Levingston, 128 N. Y. Supp. 581, 583, 585; Shivery v. Streeper, 24 Fla. 103; Bonaparte v. Denmead, 108 Md. 174, 69 Atl. 697; St. James Church v. Arlington, 36 Ala. 546; Albany Christian Church v. Wilbom, 112 Ky. 507; Flint v. Bussell, 5 Dill. 151, Fed. Cas. No. 4,876; Kaiser v. Lovett, 85 Ind. 240; Curtis v. Windslow, 38 Vt. 690; Hyden v. Terry, 32 Ky. L. Rep. 1198; Stilwell v. Buffalo Riding Academy, 4 N. Y. Supp. 414; Kirlcman v. Handy, 11 Humph. 406, 54 Am. Dec. 45; Harrison v. Brooks, 20 Ga. 537; Bounsaville v. Hohlheim, 68 Ga. 668.</p> <p>4. The erection of a building which will not of itself constitute a nuisance will not be enjoined because the use to which it is designed to be put would constitute a nuisance. Adams v. Michael, 38 Md. 123, 125; Dalton v. Cleveland, C. etc. B. Co. 144 Ind. 121; Duncan v. Hayes, 22 N. J. Eq. 25; Bouse & Smith v. Martin, 75 Ala. 510, 513, et seq.; Pfingst v. Senn, 94 Ky. 556, 560 et seq. 21 L.R.A. 569; Wood, Nuisances, §§ 789, 790; Windfall Mfg. Go. v. Patterson, 148 Ind. 414, 418, 37 L.R.A. 381.</p>

Hearing on an appeal by the complainant from a decree dismissing a bill of review.

Hearing on an appeal by tbe plaintiff from a decree dismissing a bill for injunction. The Court in tbe opinion stated tbe facts as follows: Appellant, Alexander McKenzie, appeals from a decree dismissing a bill for injunction brought by him against tbe Secretary of tbe Interior.

Hearing ou au appeal by the defendant from a decree of the Supreme Court of the District of Columbia sustaining the validity of certain letters patent. The facts are stated in the opinion.

HbaeiNG on a writ of error to tbe Police Court of the District of Columbia to review a judgment convicting defendant of violating the pure food act. The facts are stated in the opinion.

HbajriNG on an appeal by the petitioner from a decree of the Supreme Court of the District of Columbia sustaining a demurrer to a replication to a petition by one claiming to be the widow of a decedent and asking to be awarded as such her proper portion of his estate.

HEARING on an appeal by the defendants from a decree of the Supreme Court of the District of Columbia overruling demurrers to an amended bill of complaint in a suit for an accounting and for other relief.

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

Hearing oil an appeal by respondents from an order of tbe Supreme Court of tbe District of Columbia, confirming tbe verdict of a jury, awarding damages and assessing benefits in a condemnation proceeding. Tbe Court in tbe opinion stated tbe facts as follows: Tbis is an appeal from an order of tbe supreme court of tbe District of Columbia, confirming tbe verdict of tbe jury in a condemnation proceeding.

Hearing ou au appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action on a contract to pay a percentage of the gross amount recovered on a claim against the United States.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover damages for personal injuries.

Hearing on an appeal by tbe defendants from a judgment of fiat on a scire facias after direction of a verdict on issues joined. The Court in the opinion stated the facts as follows: Appeal from a judgment of fiat on a writ of scire facias. On November 7, 1892, one William G. Town (guardian of the estates of Bertha Y. Town, now Keppler, Jessie AA.

<p>Patents; Patentability; Condensation oe Steam; Anticipation.</p> <p>A process of condensing steam by passing it in a stream between cooling walls, dividing the stream of steam at frequent intervals by a cooling material, and deflecting the divided stream alternately against the cooling Avails and against the cooling material, Avas anticipated by tbe HoAvarth (British) patent of March 4, 1884, Avhich directly carried out the several steps of the process, and is not patentable, but amounts at best to a discovery of the underlying principle of an old device. (Citing Jiosell v. Allen, 16 App. D. C. 559; file -Groveling, 25 App. D. C. 530.)</p>

<p>Patents; Interference; Orioinality; Master and Servant; Presumptions; Burden of Proof.</p> <p>1. The presumption of inventorship in favor of an employer as against an employee will not attach, unless it is shown that the employee was engaged in perfecting the device under the general directions of the employer, or that at least, the broad idea of the invention was disclosed to the employee by the employer. (Citing Soley v. Sebbard, 5 App. D. C. 99.)</p> <p>2. In an interference proceeding involving the question of originality, the burden of proof rests on the junior applicant.</p>

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

Hearing on an appeal by tbe pláintiff from a judgment of tbe Supreme Court of tbe District of Columbia, on verdict, in an action to recover damages for personal injuries.

Hearing on an appeal by executors from an order of the Supreme Court of the District of Columbia sitting as a probate court, framing issues for trial by jury upon a caveat of a will. The facts are stated in the opinion.

Hearing on an appeal by tbe plaintiff from a decree of the Supreme Court of the District of Columbia dismissing her bill filed for the rescission of a conveyance of property.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover damages for personal injuries.

mine the operativeness of Hitchcock’s device in the following respect: “The shaft 8 extends from side to side of the machine Eig. 2. The grips, it is stated in lines 10, 11, page 7, are carried around the wheel 6, with the several sections (of glass) suspended therefrom.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, on verdict for the defendant, directed by the court, in an action to recover damages for breach of a contract for the purchase of certain land scrip.

Hearing on an appeal by tbe plaintiff from a judgment of the Supreme Court of the District of Columbia on a verdict for the defendants, directed by the court, in an action for damages for an alleged conspiracy. The Court in the opinion stated the facts as follows: This is an action on the case for conspiracy, and the appeal is from a directed verdict for the defendants, De Lancy Nieoll, George Gordon Battle, and Turner H. Wickersham, appellees here.

Hearing on an appeal by the surety on an attachment undertaking given to secure the release of the attached property, from an order of the lower court overruling a motion in arrest of judgment, and from a judgment on verdict against the principal on the undertaking and the surety, in an action to recover a balance upon an open account.

HeaeiNg on an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia upon a verdict for defendant directed by tbe court in an action on an accident and disability policy of insurance. Tbe facts are stated in tbe opinion.

HeaRINg oil an appeal by tbe exceptant from a judgment of the Supreme Court of the District' of Columbia confirming the award of a commission appointed to condemn certain real estate for the use of the United States. The facts are stated in the opinion.

HeabiNg- on an appeal by the petitioner, a widow, from a decree of the Supreme Court of the District of Columbia, holding an equity court, dismissing a petition for the payment of one third of the net income and rents from certain real estate in the possession of the appellee trustee, pending the trial of issues framed on a caveat to an alleged will.

<p>Patents; Interference; Alternative Operation.</p> <p>In an interference proceeding the issues of which recite.in combination a motor having a driving connection with a device for winding and paying out a flexible conductor of current to the propelling motor of a moving vehicle, and exerting upon such device a winding torque during the movement of the vehicle “in either direction,” the claim of the senior applicant will not be denied, merely because his device contemplates alternative operation, in that no winding torque is exerted while the vehicle is so moving so as to unwind the conductor, his motor, when energized, being capable of exercising a winding torque irrespective of the direction in which the vehicle moves.</p>

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

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

<p>Patents; Interference; Construction of Issues; Reduction to Practice.</p> <p>1. In a count in an interference proceeding, reciting “a lifting magnet having a central pole and outer pole, concentric with and surrounding said central pole and removable pole shoes on the bottom faces of both of said poles, the pole shoe on the outer pole being deeper than the shoe of the central pole, such that its end face is lower than the end face of the pole shoe on the central pole,”—the word “deeper” is to be taken as the equivalent of “thicker,” and not to be limited by the subsequent words, so as to make it synonjunous with “lower,” and thus make this portion of the count call merely for an outer pole shoe with its under face lower than that of the central pole shoe, especially where the specifications recite that the outer pole shoe is of such “dimensions” that its active face will be lower than that of the central pole shoe, and that the “depth” of the pole ring gives it strength in a vertical direction.</p> <p>2. A test will not in an interference proceeding be held to have constituted a reduction to practice unless it is made with a device which strictly conforms with the claims in issue, notwithstanding that in the test the device worked perfectly.</p> <p>3. A lifting magnet with concentric poles, which is represented by issues in interference as having an outer pole shoe thicker than the central pole shoe, will not be deemed to have been reduced to practice by a test made with a magnet whose central pole shoe was fg of an inch thicker than the outer pole shoe.</p> <p>4. It is not error for the Commissioner of Patents to deny the junior party’s claim of reduction to practice in an interference proceeding whose issues disclose a lifting magnet with concentric poles and an outer pole shoe thicker than the central pole shoe, where, although the drawings of the device upon which the claim of reduction to practice is based called for an outer pole shoe Jg of an inch thicker than the central pole shoe, there is no evidence that the device operated conformed strictly with the drawings, as a variation from the drawings of fg of an inch in the relative thickness of the pole shoes would be fatal.</p>

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

<p>Patents; Interference; Priority.</p> <p>1. Claims in an application for a patent should be given the broadest interpretation consistent with their terms (citing Lindmwh v. Hodghinson, 31 App. D. C. 612; Viele v. Oummings, 30 App. D. C. 455; Miel v. Young, 29 App. D. C. 481), so where the “corrugations” in the disc strain insulators for electric conductors of one of the parties to an interference, properly positioned, perform, and were intended to perform, substantially the same function of the so-called “flanges” and “collars” of the issue, the terms are to be taken as synonymous.</p> <p>2. Where the invention in issue in an interference was disclosed by the junior applicant therein to the senior applicant’s companion in a previous joint application covering the same invention, which has been abandoned, and neither the senior applicant nor his former companion has been called to testify that the disclosure was not communicated to him, the presumption is that it was, and the junior applicant is properly awarded priority of invention.</p>

<p>Hearing on an appeal by the respondents from three separate judgments of the Supreme Court of tbe District of Columbia convicting them of contempt of court and imposing a punishment.</p> <p>The Court in tbe opinion stated the facts as follows:</p> <p>This is an appeal from three separate judgments of the supreme court of the District of Columbia adjudging appellants, Samuel Gompers, John Mitchell, and Frank Morrison, respectively, guilty of contempt of court. The cases were tried together, and, by stipulation, brought here upon the same record. The appellants will be referred to hereafter as respondents.</p> <p>It appears that on the 19th day of August, 1907, a bill in equity was filed in the supreme court of the District of Columbia by the Buck’s Stove & Bange Company, a corporation, of St. Louis, Missouri, praying for an order of injunction to retrain the American Federation of Labor and certain persons, among whom were these respondents, from conducting a boycott against the business of said company. On the 18th day of December, 1907, a temporary restraining order, which is inserted in the margin, was entered by the court.*</p> <p>The indemnifying bond required by the court to be given by the complainant company was filed on December 23, 1907. The temporary order of injunction was made permanent as to tbe original defendants on March 23, 1908. From the order making the injunction perpetual, an appeal was taken to this court. No supersedeas bond was given, nor any action taken by defendants to stay the judgment. This court modified the decree of the court below. American Federation of Labor v. Buck's Stove & Range Co. 33 App. D. C. 83, 32 L.R.A.(N.S.) 748. On application of the appellant Federation of Labor, the mandate was stayed pending an appeal to the Supreme Court of the United States. Before the case came on for hearing in that court, the differences between the parties to the injunction proceeding were settled, and the appeal was finally dismissed. Inasmuch as the decree as modified by this court was never certified back to the supreme court of the District for entry, the original order of injunction remained in full force until the date of settlement, July 20, 1910.</p> <p>Contempt proceedings for tbe violation of the order of injunction were originally instituted against these respondents on July 20, 1908. From a judgment of conviction, appeal was taken to this court, where the judgment of the court below was affirmed. Gompers v. Buck’s Stove & Range Co. 33 App. D. C. 516. The case was taken to the supreme court, where the judgment was reversed, “and the case remanded with directions to reverse the judgment of the supreme court of the District of Columbia and remand the case to that court with direction that the contempt proceedings instituted by the Buck’s Stove & Range Company be dismissed, but without prejudice to the power and right of the supreme court of the District of Columbia to punish, by a proper proceeding, contempt, if any, committed against it.” 221 U. S. 418, 55 L. ed. 797, 34 L.R.A.(N.S) 874, 31 Sup. Ct. Rep. 492.</p> <p>On May 16, 1911, cognizance of the alleged contempt was again taken by tbe supreme court of tbe District of Columbia by tbe appointment of J. J. Darlington, Daniel Davenport, and James M. Beck, members of tbe bar of tbe supreme court of the District, to inquire whether reasonable cause existed to believe respondents guilty of contempt, and, if so, to prepare, file, present, and prosecute against them “charges of contempt of court, to tbe end that tbe authority of tbe court be established, vindicated, and sustained.” Tbe court subsequently added to this committee Clarence ft. Wilson, United States attorney for the District of Columbia. Tbe committee, on June 26, 1911, filed a separate sworn report as to each respondent, charging him with contempt of court.</p> <p>Respondent Gompers is accused of violating tbe temporary and perpetual orders of injunction in sixteen separate charges, the material part of which is printed in the margin.*</p> <p>Respondent Morrison is charged, as secretary of the American Federation of Labor, with receiving and having in his custody and circulating the reports of the Norfolk Convention; of joining with the other respondents in sending out the “Urgent Appeal,” with the editorial of Gompers thereto attached, and of circulating tbe American Federationist for the months of January, February, March, April, May, June, and September, 1908, containing the editorial and other matter relating to the Buck’s Stove & Range Company, as set forth in the various charges against the respondent Gompers.</p> <p>Respondent Mitchell, as vice president of the American Federation of Labor, is charged, with the other respondents, of publishing and circulating the “Urgent Appeal,” with the Gompers editorial; and of presiding over the annual convention of the United Mine Workers of America in January, 1908, when a resolution was introduced and adopted imposing a fine of $5 upon any member of tbe Union who should purchase the product of the Buck’s Stove & Range Company, and providing that, for failure to pay the fine, the member should be expelled from the Union. He is also charged with using the following lang'uage in a speech delivered before the annual convention of the United Mine Workers of America in January, 1909 : “The court says further that I presided as president of the United Mine Workers at a convention here in which a resolution was passed violating that injunction. There are no doubt in this convention hundreds of delegates wbo were here a year ago, who know that I had no knowledge that the resolution was to be introduced. They know I had nothing to do with its preparation, with its consideration, or its introduction. It came to us as all other resolutions did. As chairman, what was I to do ? I had, it is true, three alternatives. I might have resigned the presidency of the United Mine Workers of America; I might have been cowardly and called someone else to the chair, and let him accept the responsibility,—asked some one else to accept the responsibility of what I dared not do myself; or I might have accepted the last alternative. I might have stood up before you, and advocated the cause of a company which was having trouble with its employees. Does the man who respects me least imagine for a moment I would become the advocate and defender of a company that was at variance with its employees ? Would I stand here and fight the cause of a corporation that was trying to destroy the unions in its employment ? What could I-do? What could any self-respecting-man do? Would he not have done as I did ? It is true that, technically, I was guilty of violating the injunction when I presided over the meeting that adopted this resolution, but I am no more guilty than any other man who was present in the convention at th'at time. Indeed, I presume that before a jury I would be considered less guilty, because I did not vote for it, and everyone else did. I did not vote for it because I was presiding.”</p> <p>The respondents filed separate pleas, in which they pleaded not guilty, tbe bar of the statute of limitations, laches and unreasonable delay in the presentation of the charges. They were tided before five of the six judges of the supreme court of the District of Columbia, and were each found guilty of contempt of court, and sentenced to imprisonment in jail,—Gompers for one year; Mitcbel for nine months, and Morrison for six months. From the judgments, separate appeals have been prosecuted, but by stipulation in a single bill of exceptions.</p>

Hearing on an appeal by tbe plaintiff from a' decree of the Supreme Court of the District of Columbia, dismissing a bill in equity to cancel certain gifts and transfers of money and to declare a trust.

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia on a verdict for tbe plaintiff, directed by tbe court in an action on a promissory note. Tbe Court in tbe opinion stated tbe facts as follows: Tbis is an appeal from a directed verdict in tbe supreme court of tbe District in an action by tbe appellee, tbe Commercial National Bank, on a promissory note for $3,000, indorsed in blank by tbe appellant, John IT.

Hearing oil an appeal by the accused from a judgment of conviction of the Supreme Court of the District of Columbia, holding a criminal court, in a prosecution for murder. The Court in the opinion stated the facts as follows: Appellant, Tony Milano, was convicted in the supreme court of the District of Columbia of murder in the first degree.

<p>In Error to tbe Police Court of tbe District of Columbia to review a judgment convicting defendant of unlawfully selling intoxicating liquor.</p> <p>Tbe Court in tbe opinion stated tbe facts as follows:</p> <p>Writ of error to tbe police court to review a judgment convicting tbe plaintiff in error, Lewis Jefferson, of unlawfully selling intoxicating liquor in the District of Columbia, and imposing a fine of $250. Tbe facts were agreed upon and tbe stipulation recited that “tbe court should render judgment thereon.”</p> <p>Erom this statement it appears that tbe “Angler” is a steamboat engaged in carrying passengers between tbe city of Washington and a nearby excursion resort in Maryland, and a bar is kept thereon. On August 11, 1912, after backing out from the 7th street wharf, and while in tbe channel opposite the Sea Wall of Potomac park, intoxicating liquors were sold by tbe drink, by direction of plaintiff in error, who is tbe manager of said boat. Again, on the return trip, and while in the river between the city of Alexandria, Virginia, and the opposite shore of the District, such liquors were sold. It was also agreed that the owner of said boat had previously applied to the District excise board for a retail liquor license, which said board declined to grant, on the ground that it had no authority to do so under the excise law. Motion was made to dismiss upon the ground, first, that the act regulating the sale of liquors, etc. does not extend to boats operating in the Potomac river in interstate commerce; second, that the facts do not constitute an offense. Certain other objections relate to the form of the information.</p>

<p>Hearing on an appeal by tbe defendants from a judgment of tbe Supreme Court of tbe District of Columbia on verdict for tbe plaintiff in an action of ejectment.</p> <p>Tbe Court in tbe opinion stated tbe facts as follows:</p> <p>This is an appeal from a judgment in an action of ejectment brought by Charles Newburgh against tbe appellants, Mary S. Wilson and others, to recover the possession of parts of lots 15 and 16 in square 503, in the city of Washington.</p> <p>The lots in controversy were the property of Thomas Hitter, who died while in the possession thereof, intestate and without issue, in September, 1897, leaving a widow, Ann Catherine Hitter, who remained in possession until her death, March 3, 1906. Thomas Hitter is the common source of title. At the death of said widow, the property passed into the possession of defendant Mary S. Wilson, one of her heirs at law. Plaintiff’s evidence tended to show that the property had been leased to tenants, by an agent of Mrs. Hitter, from some time in 1904. July 23, 1906, he ceased to act as agent, and turned over the balance of rent in his hands, amounting to $50, to Mary S. Wilson. One Himmelright was the tenant. ITe testified that he paid the rent to the former agent, Davis, until Mrs. Wilson directed him to pay the rent to J. H. Adriaans. He paid the rent to Adriaans from July 3, 1906, until February 20, 1907, at which time Mrs. Wilson directed him to cease payments to Adriaans. He gave up the house later because “Adriaans, New-burgh, and others bothered him so much.” Alice C. Gray was then placed in possession by Mrs. Mary S. Wilson, and paid rent to her. She was “bothered so much that she got out.” Timothy J. Broderick succeeded Gray and pays rent to Mary S. Wilson. He was in possession at the time of trial. Plaintiff Newburgh has been to see him and claimed to be the owner. Plaintiff introduced evidence tending to show that the brother and sister of Thomas Hitter had died without issue, and that the grantors in the deed under which he claimed title were the only descendants of the father and mother of said Thomas Hitter. There were objections taken to certain of this evidence, and motions to exclude, which being overruled, exceptions were taken that will be noticed hereafter.</p> <p>Plaintiff then introduced a deed executed by the said heirs at law, December 5, 1906, conveying the said'premises to J. H. Adriaans in trust. This deed describes the property and recites the heirship of the grantors. The trusts are recited as follows:</p> <p>“First, to perfect the title to said property by acquiring adverse outstanding claims or encumbrances thereon. Second, to sell the same at private or public sale, as the interests of the parties of the first part shall be best subserved by either mode of transfer; and to convey same in fee simple, to the purchaser, who shall not be obliged to see to the application of the purchase money. Third, to pay from the proceeds of the sale any legitimate debts or claims on or against said property or the estate of said Thomas Eitter. Fourth, to reimburse the heirs of Ann Catherine Eitter for advances made by some of them to the party herein of the second part, for the purpose of perfecting the title to the herein-described property. Fifth, to reserve to the party of the second part as compensation for making said sale, a commission of 5 per centum of the amount of said sale. Sixth, to reserve to the party of the second part, as compensation for perfecting said title, removing clouds therefrom, or obstacles to the sale thereof, and for legal services rendered and to be rendered in the adjustment of the estate of said Thomas Eitter, deceased, a commission of 10 per centum on the amount of said sale. Seventh, to pay over the balance of said purchase money, derived from the said sale, to the parties of the first part, in equal shares as the sole surviving heirs at law of said Thomas Eitter, after making stdtable provision therefrom for reimbursing some of the heirs of said Ann Catherine Eitter for advances made by them for the benefit of the parties herein of the first part, to the party herein of the second part, for the purpose of perfecting the title to said property and to acquire adverse claims thereto.”</p> <p>This deed was recorded March 5, 1908. A deed was then offered, executed by Adriaans, trustee, February Id, 1908, .conveying the premises to Charles Newburgh; which deed had been recorded March 5, 1908. The defendant objected to the first deed being admitted in evidence because champertous and against public policy; and to the second deed because no title had been vested in Adriaans, as trustee, by the former deed. Both objections were overruled, and exceptions reserved. Plaintiff also read in evidence a lease of the premises for one year, executed by Mary S. Wilson and others, purporting to be the heirs at law of Ann Catherine Ritter, to H. Himmelright, dated February 20, 1907, and recorded February 26th.</p> <p>The case was submitted to the jury with a charge to which no exception was taken, and their verdict was for the plaintiff.</p>

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, sustaining a demurrer to his amended declaration in an action for alleged personal injury.

HeaeiNG on an appeal by tbe complainant from a decree in tbe Supreme Court of tbe District of Columbia sustaining a demurrer to, and dismissing, a bill in equity to enjoin a violation of restrictive covenants in a deed of land. Tbe Coubt in tbe opinion stated tbe facts as follows: Tbis is an appeal from a decree in tbe supreme court of tbe District sustaining tbe demurrer to appellants’ bill and dismissing tbe same.

<p>Accounts Stated; Impeachment of; Evidence; Partnership; Tenants in Common; Remittitur.</p> <p>1. The acceptance and acknowledgment of the balance as shown by an account submitted makes an account stated, from which the law implies a promise to pay.</p> <p>2. An account stated is pruna facie, correct, and cannot be impeached save for fraud, error, or mistake. (Citing Gordon v. Frazer, 13 App. D. C. 382-387.)</p> <p>3. Upon the acceptance and acknowledgment of the indebtedness stated in an account submitted, liability to pay at once arises, and a subsequent withdrawal of that acknowledgment is inoperative, unless supported by evidence tending to show fraud, error, or mistake; so that in an action on the account stated where there was no plea to that effect, and no evidence whatever was attempted to be introduced to show, such fraud, error, or mistake, evidence tending to show that the acceptance and approval of the indebtedness stated in the account submitted had been rescinded was properly excluded.</p> <p>4. Where the purchasers of land did not enter into a partnership for that purpose, nor use partnership funds in paying for it, and the adventure was single and special on joint account, involving the payment in equal proportions of designated sums of money, and there was a mere community of interest in the property, the purchasers were not partners, but tenants in common, against whom an action at law, by the executrix of one of them for disbursements made by him, upon an account stated, is maintainable. (Citing Starkweather v. Dyer, 30 App. D. C. 146-149.)</p> <p>5. Where on appeal in an action upon an account stated by the personal representative of one member of a land syndicate against the other members, it is discovered that a proportion of the indebtedness shown in the account is chargeable to the shares of the deceased member in the land of the syndicate, and verdict has been rendered and-judgment entered against the other members for the entire indebtedness, this court will allow a remittitur of the amount for which the shares of the deceased member is chargeable, and enter judgment, against the other members for their proportion of the debt only.</p>

<p>Pleading; Affidavits of Defense; Bills and Notes.</p> <p>1. The object of the 73d rule of the supreme court of the District of Columbia is to promote justice by preventing, so far as possible, fictitious defenses; it was never intended as a substitute for a trial, and if, therefore, the court, upon reading an affidavit of defense given thereunder, is convinced that it has been made in good faith, and a doubt exists as to the right of the plaintiff to recover, summary judgment ought not to be entered. (Citing Laiorence v. Hammond, 4-App. D. C. 467; St. Glair v. Oonlon, 12 App. D. C. 161; Patterson v. Barrie, 30 App. D. C. 531; Columbia, Launck-y Go. v. Ellis, 36 App. D. C. 583.)</p> <p>2. An affidavit of defense by the maker of a promissory note sued on by one claiming to have become the bona fide owner thereof for value before maturity, that alleges facts which, if sustained by proof, constitute a good defense as against the original payee of the note, and avers that until recently no interest has been demanded on the note by plaintiff, which has deferred suing thereon for three years; that “on information from reliable persons,” he believes that the note was not indorsed to plaintiff without notice of his defenses; that he is informed and believes that the note was obtained by plaintiff after maturity, and that the original payee has secured plaintiff against loss in the event of a failure to collect it; and that he expects to prove these averments at the trial by competent witnesses,—is sufficient under the 73d rule to show the good faith of defendant, and to entitle him to a jury trial.</p>

HEARING on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover damages for personal injuries. Tbe Couet in tbe opinion stated tbe facts as follows: Tbis is an appeal from a judgment in an action for damages for personal injuries. By reason of tbe defendant’s motion to direct a verdict, and tbe exception taken to tbe denial of tbe same, tbe evidence is set out at length in tbe bill of exceptions.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action on a contract for division of attorneys’ fees. The facts are stated in the opinion.

<p>Patents; Patentability; Process Claims; Prior Apparatus Patent.</p> <p>Where the claims of an applicant for a process and a prior patent to him for an apparatus disclose but one invention, but one patent can issue, and the invention covered by such prior patent for an apparatus is not made diiferent so as to be patentable as a process, by merely designating it such in claims which do not disclose another invention, but merely state in diiferent words the invention covered by the prior patent. (Citing Re Oreveling, 25 App. D. C. 530-535.) .</p>

<p>Criminal Law; Pleading; Rape; Constitutional Law.</p> <p>1. Where a statute permits the plea of guilty, and such plea is accepted and entered by the court in a criminal case, it is the highest kind of conviction of which the ease admits, and in that instance there is nothing left for the court but to enter judgment.</p> <p>2. Under Code D. C. sec. 808 (31 Stat. at L. 1322, chap. 854), providing that the punishment for rape shall be imprisonment for not less than five nor more than thirty years, except that in any case the jury may add to their verdict, if it bo guilty, the words, “with the death penalty,” in which case the punishment shall be death by hanging, and if the jury fail to agree as to the punishment, the verdict of guilty shall be received, and the punishment shall be imprisonment as above provided,—the court in a prosecution for that crime must have the verdict of the jury upon which to base its judgment, and is therefore without power to accept a plea of guilty.</p> <p>3. Code D. C. sec. 808, providing the punishment, and the manner of fixing the same, for rape in the District of Columbia, denies a defendant no constitutional right in so far as it deprives him of the right to plead guilty, as he is still accorded the constitutional safeguard of a trial by jury.</p>

Hearing on a motion to dismiss or affirm a judgment for the defendant of the Supreme Court of the District of Columbia, upon verdict, in an action upon a promissory'note, a motion by the appellee to strike the bill of exceptions from the record having theretofore been granted by this court. 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 verdict, in an action on a promissory note. The facts are stated in the opinion.

Hearing on an appeal by tbe accused from a judgment of tbe Supreme Court of tbe District of Columbia, convicting bim of murder. Tbe Court in tbe opinion stated tbe facts as follows: Tbe appellant, William H. Sabens alias Willie H. Sabens, was convicted in tbe supreme court of tbe District of murder in tbe first degree and sentenced to death.

<p>Decree; Res Judicata; Accounting; Trusts and Trustees; Estoppel.</p> <p>1. A decree of general accounting against the trustee of a testamentary trust is res judicata as to his right to reimbursement for expenditures and compensation for services, since such claims should have been submitted at the time of the general accounting. (Citing Gray v. District of Columbia, 1 App. D. O. 20.)</p> <p>2. The failure of the trustee of a testamentary trust against whom a decree of general accounting has been rendered, to appeal from a subsequent decree denying his petition for reimbursement for expenses and compensation for services, estops him from reopening either decree for the purpose of asserting such claim. (Following Sclviowrtz v. Costello, 11 App. D. O. 553.)</p>

Hearing on an appeal by the defendant from an order of tbe Supreme Court of the District of Columbia, dismissing his petition for an inquisition into his sanity. The Court in the opinion stated the facts as follows: Andrew Gonzales, appellant, was charged in an indictment with the murder of his wife on July 21, 1911, and brought to trial in July, 1912. His defense was insanity at the time of the commission of the crime.

Hearing on appeals (specially allowed) by tbe plaintiff and tbe defendant from an order of tbe Supreme Court of tbe District of Columbia, sustaining defendant’s demurrer to tbe first two counts, and overruling defendant’s demurrer to tbe third count of tbe declaration in an action brought to recover damages for breach of a building contract.

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia, on verdict, in an action brought to recover damages for personal injuries.

Hearing on an appeal by tbe plaintiff from a decree of tbe Supreme Court of tbe District of Columbia dismissing bis bill for specific performance of a contract to convey land.

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

<p>Trademarks; Descriptiveness; Amendment; Disclaims®.</p> <p>1. Registration of an alleged trademark for nonmetallic electric vehicle tires should be denied for deseriptiveness, when it consists in a perspective view of a clincher rim with a tire thereon, the word “Cushion” appearing across the end of a portion of the rim, and just below a perspective view of a portion of an automobile wheel passing over an obstruction so as to depress the tire.</p> <p>2. An applicant for the registration of a trademark which has been refused upon the ground of descriptiveness cannot, by an amendment disclaiming the descriptive features, obtain registration of a mark which he is not shown ever to have used, and which is merely a skeleton of the real mark.</p> <p>3. The representation of a rim of a wheel with a tire thereon is not, even though the tire be. disclaimed, registerable as a trademark, since no manufacturer should be prevented from representing to the public the manner in which his goods are used.</p>

Hearing on an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia sustaining a plea in abatement to tbe declaration in an action to recover damages for tbe alleged killing of tbe plaintiff’s intestate. Tbe facts are stated in tbe opinion.

Hearing on an appeal by tbe plaint iff from a decree of the-Supreme Court of tbe District of Columbia dismissing a bill in equity for an injunction against the Secretary of tbe Interior. Tbe facts are stated in tbe opinion.

Hearing on an appeal by tbe plaintiff from a decree of the Supreme Court of the District of Columbia dismissing a bill in equity for specific performance of a contract to purchase land. The Court in the opinion stated the facts as follows: Appellant, Charlotte Anita Whitney, filed a bill in equity [against Mahlon Groo] in the supreme court of the District of Columbia to compel the specific performance of a contract for the purchase of real estate.

<p>Hearing upon a certification of a judge of tbe police court under sec. 933, D. C. Code (31 Stat. at L. 1341, cbap. 854). of a question for determination by this court.</p> <p>The facts are stated in the opinion.</p>

<p>Hearing on an appeal by tbe complainant from a decree of the Supreme Court of the District of Columbia sitting in equity, sustaining a demurrer to and dismissing an amended bill filed to enjoin defendant from entering into any contracts carrying out certain awards, and canceling them.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal by the B. F. Cummins Company from a decree dismissing a bill against Albert S. Burleson, the Postmaster General, filed March 25, 1913, by the B. F. Cummins Company, a corporation of the State of Illinois. It alleges the following facts substantially: An act of Congress approved August 24, 1912, making appropriations for the Postoffice Department for the year ending June 30, 1913, appropriated money for the rental and purchase of canceling machines, cost of power, repairs, etc., and contained a proviso that no contract shall be made for any machine, including repairs, for more than $270 per annum, “and that all contracts shall be let after having advertised for bids, and shall be awarded on the basis of cheapness and efficiency.” By a later act, June 30, 1912, the Postmaster-General was authorized, at his discretion, to enter into contracts for a period of not exceeding four years. Bids were advertised for, and as a result several sealed proposals were submitted by bidders. These embraced bids for lots of ten, and for multiples, thereof up to the entire number proposed to be rented; the offers-decreasing in price per machine in proportion to the numbers-offered. Among these bids was one by the B. F. Cummins Company. After the opening of said bids, the then Postmaster General, Frank H. Hitchcock, appointed a committee consisting of two assistant Postmasters General, the chief postoffice inspector, and the postmaster of the city of New York, to examine and report upon the same. The tests conducted by them were-to be the sole criterion in determining the efficiency of the machines submitted. In accordance with the report of said committee, awards were made as follows:</p> <p>First Class—High Grade.</p> <p>Universal Stamping Machine Co.. . 200 machines at $220 ea.</p> <p>American Postal Machines Co..... 50 machines at 200 ea.</p> <p>International Postal Sup. Co., N. Y.. 207 machines at 270 ea.</p> <p>Second Class—Medium Grade.</p> <p>Universal Stamping Machine Co.. . 60 machines at $136 ea.</p> <p>American Postal Machines Co. Combination ................400 machines at 80 ea.</p> <p>Columbia Postal Supply Co.......305 machines at International Postal Supply Co. of 95 ea.</p> <p>New York, Model S...........105 machines at 150 ea.</p> <p>Third Class—Hand Power.</p> <p>American Postal Machines Co. No. 1 ......................400 machines at $62 ea.</p> <p>Columbia Postal Supply Co.......100 machines at 50 ea.</p> <p>International Postal Sup. Co. of New York, Model “L” H. P.....100 machines at 60 ea.</p> <p>American Postal Machines Co. No. 2 ...........•........... 50 machines at 54 ea.</p> <p>That the bids accepted were not accepted on the awards made on the basis of cheapness and efficiency. That complainant’s bids were cheaper, more economical, and more advantageous than those accepted, and there will be a loss on the same approximating $409,000 for the four years, and said amount will be unnecessarily expended. That, on a basis of cheapness and efficiency, the awarding of contracts to the other unsuccessful bidders would result in great saving to the United States. That “one of the machines for which an award was made in each class was cheaper than either of the other machines for which awards were made in that class, and said one machine was equally efficient as said other machines,” so that there will result a great loss to the United States.</p> <p>That the bidders to whom awards were made offered their machines at a rental on a basis of award for the entire number of machines in any one of the classes, much lower than on a basis for a less number, yet the Postmaster General arbitrarily accepted several bids, and made several awards in each of the classes, at higher prices and without any increase of efficiency; and if said awards are executed, there will result an unnecessary expenditure of public money. Other allegations are substantially the same in different forms.</p> <p>Plaintiff has attached as an exhibit to its bill the proceedings in the Postoffice Department, beginning with the advertisement and ending with the award. The report of the committee itemizes the bids made, and describes the tests made of the several machines of the respective bidders by expert machinists, and states as follows: “After having fully and carefully considered all the bids received for rentals for this class, the results of the tests, and the report of the mechanical experts, we are of the opinion that awards should be made as follows:” The report also states: “The total annual rental price of 1882 machines of these three classes now in the service is $278,794; the total annual rental price of 1977 machines of these three classes, as recommended by the committee, will be $244,275, a saving of $45,519 a year, with an increase of 95 in the number of machines and a substantial increase in the efficiency of all machines to be used. These recommendations are based upon considerations of cheapness and efficiency.”</p> <p>Having considered the foregoing report, Postmaster General Hitchcock, on February 21, 1913, awarded bids as recommended by the committee. A protest was made by the plaintiff to Albert S. Burleson, successor to Mr. Hitchcock, as Postmaster General, who replied that the matter had been closed by the former’s approval of the award.</p> <p>It is finally alleged that great and irreparable injury will result to plaintiff and other taxpayers of the United States if the moneys be expended as threatened, and if the canceling machines be not secured on the basis of cheapness and efficiency as required by law, etc. The special right of plaintiff to maintain the suit is contained in the 12th paragraph of the bill, as follows:</p> <p>“Twelfth. That complainant is a taxpayer of the United States and has paid and does regularly pay and will continue hereafter to pay to the United States an annual corporation tax based upon its income, under the act of Congress of August 5, 1909, and has paid and does pay and will continue hereafter to pay to the United States tariff taxes upon many articles by it imported into the United States, and also has paid and does pay and will hereafter continue to pay other taxes of the United States; and complainant further avers that there wil'1 be to it special damage and injury from the unnecessary and illegal expenditure by government officials of the moneys of the United States as threatened in the carrying out of said awards as above set out, which expenditures will render the taxes of the United States higher and a greater burden upon taxpayers of the United States than said taxes otherwise would be, and will increase the taxes of the complainant and other taxpayers of the United States.”</p> <p>The prayers are for a decree enjoining the defendant from entering into any contracts carrying out said awards, and canceling them. Defendant’s demurrer to the bill was sustained,, and the same dismissed.</p> <p>1. This court has jurisdiction over the executive officers of the general government and may issue injunctions against said officers, and taxpayers may maintain such suits to prevent illegal expenditures of public funds. Railroad v. Noble, 20 D. O. 555; Noble v. R. Co. 1 Ml U. S. 164; American Sch. Magnetic Healing v. McAnnulty, 187 U. S. 94; Roberts v. Valentine, 18 App. D. O. 38; Roberts v. Bradfield, 12 App. D. C. 453; Roberts v. United States, 176 U. S. 221; United States v. Lee, 106 U. S. 196; Cunningham v. Macon, &c. R. R. Co. 109 U. S. 446; Payne v. Railway Pub. Co. 20 App. D. C. 581; Downing v. Rossy.1 App. D. C. 251; Detroit Free Press v. State Auditors, Ml Mich. 135; Reagan v. Trust Co. 154 U. S. 362; Liquidation v. McComb, 92 U. S. 531; Crampton v. Zabrislcie, 101 U. S.. 601; State v. Baxter, 38 Ark. 462; Harney v. Railroad R. Go. 32 Ind. 244; Henry County v. Gillies, 138 Ind. 667; Rice v.. Smith, 9 Iowa, 571; Snyder v. Foster, 77 Iowa, 638; Peter v.. Prettyman, 62 Md. 566; Ackerman v. Trammel, 40 Neb. 95;, Normand v. Otoe County, 8 Neb. 18; Whitcomb v. Reed, 24 Neb. 50; Vaughn v. Comrs. 118 N. O. 636; Shinn v. Bd. of Fdu. 39 W. Va. 497; Times Pub. Co. v. Everett, 9 Wash. 518; Baltimore v. Keyser, 72 Md. 106; Colorado Pav. Co. v. Murphy,. 78 Fed. 28; New Orleans, M. & C. R. Co. v. Dwrm, 51 Ala. 128.</p> <p>2. A suitor wbo comes into court with an established right, as here in the character of a taxpayer, will not be denied his proper remedy because of some ulterior interest or motive which he may have in bringing the suit. Starin v. Mayor, 42 Hun, 551; Brookman v. Crestón, 79 Iowa, 592; Colman v. Collins, 40 Ga. 607, 8, 16, 17; Ramsey v. Gould, 57 Barb. 398; Mazet v. Pittsbury, 137 Pa. 548; Baltimore v. Keyser, 72 Md. 106; Lucas v. Engineering, etc. Co. 16 Hawaii, 80; Times Pub. Co. v. Everett, 9 Wash. 518, and Henry County v. Gillies, 138 Ind. 667.</p> <p>1. The appellant as a taxpayer has no status to entitle it for an injunction against an executive officer of the government in the performance of his official duty. Jones v. Reed, 3 Wash. 57; Dill. Mun. Corp. 4th ed. No. 915; High, Injunction, No. 1237; Adair v. Browning, 6 D. O. 243; Bradfield v. Roberts, 175 U. S. 291; Re Sawyer, 124 U. S. 200; Slate v. Thorson,. 33 L.R.A. 584, 9 S. Dak. 149; Syme v. Poole, 36 W. L. R. 18; State ex rel. Taylor v. Lord, 28 Or. 491; Miller v. Grandy, 13 Mich. 540; Grant v. Cook, 7 D. O. 165, 203; Harrison v. Black, 31 App. D. O. 417; Valley Paper Co. v. Donnelly, Public ■ Printer, Equity No. 29,461; Peeples v. Byrd, 98 Ga. 688; Roosevelt v. Draper, 23 N. Y. 318; Cicero Lumber Go. v. Cicero, 176 111. 9; Barrow v. Sycamore, 150 111. 588.</p> <p>2. The determination of the question of the best canceling-; -machines for the nse of the postoffice department, upon the basis of cheapness and efficiency, is vested in the Postmaster General, and his decision thereon is final and conclusive, and .should not be reviewed by the courts. Cleveland Fire Co. v. Metropolitan Fire Commissioners, 55 Barb. N. Y. 288, 292; Clapton v. Taylor, 49 Mo. App. 117—124; Interstate Product No. v. Philadelphia, 164 Pa. 477; Douglas v. Com. 108 Pa. 559; Maxwell v. Bastrot Mfg. Co. 77 Tex. 233; Missouri Drug i Co. v. Wyman, 129 Bed. 623; American School of Magnetic .Healing v. McArmulty, 187 U. S. 94; United States ex rel. .Riverside Oil Co. v. Hitchcock, 190 IT. S. 316—324; United , States ex rel. West v. Hitchcock, 26 App. D. C. 290; Northern . P. R. Co. v. Washington Territory, 142 IT. S. 492; Decatur v. .Paulding, 14 Pet. 513; Bates & Guild Co. v. Paine, 194 IT. S. 106; Enterprise Asso. v. Zumstein, 67 Bed. 1000.</p>

Hearing on an appeal from a decision of the Commissioner of Patents refusing application for the reissue of a patent. The facts are stated in the opinion. 1. Reissue applications are not required to be supported by a verified showing, and hence the insufficiency of a verified showing affords no ground for rejecting appellant’s reissue application. U. S. Rev. Stat. sec. 4916; Gold & Stock Tel. Go. v..

Hearing on an appeal by the complainants from a decree of the Supreme Court of the District of Columbia, dismissing a bill filed to set aside certain alleged fraudulent conveyances- The facts are stated in the opinion.

<p>■ Hearing on an appeal by the petitioner from a judgment of the Supreme Court of the District of Columbia, overruling a demurrer to a return to a petition for a writ of mandamus, and the petitioner electing to stand on his demurrer, discharging the rule to show cause, theretofore issued, and dismissing the petition.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>The appellant, Alpheus H. Brown, filed in the supreme court of the District a petition for a writ of mandamus to compel the Secretary of the Interior to revoke an order removing him and certain others from membership in the Osage Tribal Council, to recognize him and said others as members of said council, and to revoke an order directing an election in the Osage Nation to fill the vacancies caused by said removals. A rule issued, to which a return was made. Appellant thereupon demurred to the return, the demurrer was overruled, and, appellant electing to stand upon his demurrer, the rule was discharged, the petition dismissed, and the case brought here. Franklin K. Lane, the present Secretary of the Interior, has been substituted as defendant.</p> <p>The facts, as stated in the petition, are substantially as follows : Sec. 9 of “An Act For the Division of the Lands and Funds of the Osage Indians in Oklahoma Territory, and for Other Purposes,” approved June 28, 1906 (34 Stat. at L. 539, chap. 3572), provides for a biennial election of officers for the tribe as follows: “A .principal chief, an assistant principal chief, and eight members of the Osage Tribal Council, to succeed the officers elected in the year 1906 * * *; and the first election for said officers shall be held on the first Monday in June, 1908, in the manner to be prescribed by the Commissioner of Indian Affairs, and said officers shall be elected for •a period of two years, commencing on the first day of July following said election, and in case of vacancy in the office of principal chief, by death, resignation, or otherwise, the assistant principal chief shall succeed to said office, and all vacancies in the Osage Tribal Council shall be filled in a manner to be prescribed by the Osage Tribal Council, and the Secretary of the Interior is hereby authorized to remove from the council any member or members thereof for good cause, to be by him determined.” An election was held on the first Monday in June, 1912, in accordance with the provisions of said act, and the appellant was elected a member of the Tribal Council for a term of two years, beginning July 1, 1912, and the other offices mentioned in said see. 9 were also filled. During the month of July, 1912, the then Secretary of the Interior, without notice or hearing, passed an order removing appellant as a member of said council, and on January 2, 1913, without notice or hearing, an order was passed, which is inserted in the petition, removing each member of said council. In this order the Secretary said: “It is not necessary that I should assign the reasons for this action, but in order that these reasons may be known by all of the members of the Osage tribe and by all others interested, I state as the reason for my action that the Osage Tribal Council, as constituted prior to this order, has shown by the things it has done and the things it .has failed to do that it has been controlled by influences hostile to the best interests of the tribe, and the said council and each memher thereof has proven recreant to the duty owed to the tribe by the said council and its members. It has permitted outsiders (some of whom have financial interest in the matters involved) to influence its policies and its actions, contrary to the interests of the tribe, and in matters of the greatest importance to the tribe. It has refused to follow the expressed wishes of the majority of the adult male members of the tribe, that the bids made on the 11th day of November, 1912, for leases on the oil and gas deposits belonging to the tribe be accepted, and that leases be executed thereon. It has persisted in attempting to have these deposits leased on terms and in a manner definitely disapproved by the Secretary of the Interior, whose action in this matter has been sustained by the President of the United States after a hearing given to parties interested in securing such leases. It has failed to take any step to fill the vacancy in the office of principal chief, caused by the removal of Bacon Bind, or the vacancy in the office of assistant chief, caused by the removal of Henry Bedeagle, or the vacancy in the membership of the Tribal Council caused by the removal of Thomas West. It has even failed to provide any method of filing vacancies in the Tribal Council, and this failure compels me to take the necessary steps for this purpose.</p> <p>(Signed) Walter L. Fisher, Secretary”</p> <p>The answer of the Secretary admitted the removal of the appellant and other members of said council, denied the averments of the petition that they had demeaned themselves properly, and faithfully discharged their duties, and averred that they were removed as stated in the petition, and that they “were and have heen guilty of nonfeasance and malfeasance in the discharge of their duties as members of said council; and particularly in regard to certain oil and gas mining leases, improperly and wrongfully secured by a certain corporation known as tbe 'Uncle Sam Oil Company’ * * *; that relator, as well as the other members of said Osage Council so removed by him (the Secretary), were improper persons to be or remain members of said council,” etc. It is further averred in the answer that the Secretary, pursuant to the authority in him vested by the provisions of sec. 9 of said act of June 28, 1906, “determined that just and good cause existed for the removal of relator and the other members named in his (the Secretary’s) order, from membership in said Tribal Council, and did then and there rightly and lawfully remove him, the said relator, and them, the members mentioned in paragraph 1 of the petition, as members of said council.”</p>

<p>Negligence; Evidence; Instructions to Jury; Appeal and Error.</p> <p>1. The admission in an action for personal injuries alleged to have been caused by the use of an insufficient hinge upon a blind, of evidence offered ■ by the defendant, tending to show that the hinge was of standard make and in general use in certain years, is not error, where the plaintiff had shown that the building upon which the blind hung was erected in such years, and had called witnesses to testify that the hinge was deficient, dangerous, and not consistent with good construction, especially where the evidence complained of does not differ materially from other evidence previously intro-i duced by the defendant without objection.</p> <p>2. The admission of evidence offered by the defendant, tending to show the professional reputation of the architect and builder of a building which was alleged to have been constructed of insufficient materials, to the personal injury of plaintiff, is not prejudicial, where similar evidence had already been introduced without objection, and no motion was made to strike it out.</p> <p>3. Refusal to give a requested instruction is not error, where the charge to the jury substantially embodies the ideas contained in the instruction asked.</p> <p>4. Refusal of a special instruction asked by the plaintiff in an action against the owner of a building for personal injuries sustained because of alleged defective, construction, to the effect that the defendant could not avoid liability by reason of covenants on the part of the lessee in possession to repair and keep in repair the premises, is not error, where it is clearly apparent from the charge to the jury that the jury fully understood that they were to determine upon the evidence submitted whether the defendant had fulfilled her duty in the premises, and that if they were satisfied she had not, the plaintiff was entitled to recover, irrespective of the lease or the covenant therein.</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 against a sleeping car company and a railroad company to recover for the loss of money by alleged theft while the plaintiff was a passenger.

Hearing on an appeal by tbe defendants from a judgment of tbe Supreme Court of the District of Columbia, on verdict,, in an action by a real estate broker to recover a commission. Tbe Court in tbe opinion stated tbe facts as follows: This suit was brought in tbe supreme court of tbe District of Columbia by appellee, Hubert C. Shinn, to recover a commission alleged to be due from appellants, John O. Evans and A. Ward Evans, for tbe sale of certain real estate in this city..

<p>Hearing on an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia sustaining a ■demurrer to a declaration in libel, and dismissing tbe action.</p> <p>Tbe facts are stated in tbe opinion.</p>

<p>Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of the District of Columbia, on verdict, in an action brought to recover damages for personal injuries.</p> <p>Tbe Court in tbe opinion stated tbe facts as follows:</p> <p>Tbe District of Columbia, defendant below, appeals from a-judgment in tbe supreme court upon tbe verdict of a jury in an action for tbe recovery of damages for personal injuries sustained by tbe plaintiff, Elizabeth J. Harper, as tbe result of a fall while walking on tbe sidewalk under tbe H street, N. E.r railroad viaduct, on November 22, 1909.</p> <p>Tbe action was against both tbe District of Columbia and" tbe Washington Terminal Company, tbe declaration alleging’ that this viaduct was so carelessly and negligently constructed and maintained that “excrement, offal, slop, water, drainage,, moisture, and slime” seeped through tbe abutments thereof and" upon tbe street, so that said objectionable matter “formed a slippery and dangerous place on tbe said sidewalk, of which tbe defendants, and each of them, bad notice and knowledge.”’ Tbe duty of tbe District of Columbia to use reasonable care in maintaining said sidewalk in a reasonably safe condition is then alleged, and its breach of duty is set forth in part as follows : “Tbe defendant, tbe District of Columbia, obligated and ■charged by law as aforesaid, and with full knowledge of the negligence and carelessness of its codefendant aforesaid, on, to wit, the day and year last aforesaid, and for a long time prior •thereto, to wit, for four years, carelessly and negligently suffered and permitted the said excrement, offal, refuse, moisture, water, •and drainage aforesaid to be and remain upon the said side-walk, as aforesaid, so that the same became and was a menace to pedestrians,” etc.</p> <p>The evidence of the plaintiff tended to show that this viaduct is over 760 feet long, and on account of faulty construction of ■the abutments thereof, water that had filtered through the clay back of the abiitments, seeped through said abutments and onto the sidewalk, and formed a “gummy, slippery substance that covered the sidewalk.” The evidence further tended to show that this condition existed from the time said viaduct was constructed, in 1904, until some time in 1910, and there was evidence tending to show negligence on the part of the District in failing to remove this substance from the sidewalk ;■ that much ■.greater care was exercised in keeping the street free from said slippery substance than was practised in keeping the sidewalk free therefrom; that said walk was suffered to remain in a very dangerous condition. Plaintiff’s evidence further tended to show that she was exercising due care at the time of her injury.</p> <p>At the close of the plaintiff’s evidence the District moved for -a verdict, assigning as reasons that it had never approved the plans of the terminal company as to these walls; that it had done •all it could “with its appliances and means” to keep said sidewalk in a reasonably safe condition, and that it was the primary duty of the terminal company, as it caused the substance to be upon the sidewalk, to remove it. This motion was denied, but the motion of the terminal company for a directed verdict was ■granted. Upon what theory does not appear. The District then introduced evidence, and the case was submitted to the jury and a verdict returned for the plaintiff.</p> <p>1. The obstruction, if the condition amounted to such, was lawful, and municipality is not liable. Transportation Go. v. Chicago, 99 U. S. 635; Wolf v. District of Columbia, 21 App. D. C. 470; Howes v. District of Columbia, 2 App. D. C. 188; Swart v. District of Columbia., 17 App. D. C. 413.</p> <p>2. There was a distinct, efficient cause, over which the district had no control, and it is not liable. Swart v. District of Columbia, 17 App. D. C. 407; Rowell v. Lowell, 7 Cray, 100; Taylor v. Providence, 8 R. I. 352; McLoughlin v.. Philadelphia, 142 Pa. 80.</p> <p>3. The municipality is not liable for a mere slipperiness of the street. Chase v. Cleveland, 44 Ohio St. 515; Smith v. Bangor, 72 Me. 249; Jones, Neg. 6, 201; Dill. Mun. Corp. sec. 1697, citing many cases; Braburg v. Des Moines, 63 Iowa, 523; Borough v. Cline, 100 Pa. 119; Taylor v. Yonkers, 105 N. Y. '202; Mueller v. Milwaukee, 110 Wis. 623; Chamberlain r. Oshkosh, 84 Wis. 292; Harrington v. Buffalo, 121 N. Y. 147; Nason v. Boston, 14 Allen, 508; Cook v. Milwaukee, 27 Wis. 191.</p> <p>1. There is no difference in principle between a dangerohs •obstruction in the street resulting from a hole or excavation, and an equally dangerous obstruction resulting from matter thereon, which is liable to cause one to slip and to be injured. O’Dwyer v. Market Co. 24 App. D. C. 81; District of Columbia v. Woodbury, 136 IT. S. 463 ; Domer v. District of Columbia, 21 D. O. App. 284; Dotey v. District of Columbia, 25 App. D. O. 232; Pitman v. City, 141 App. Div. 670; Olson v. Worcester, 142 Mass. 536; Taylor v. Yonkers, 105 N. Y. 202; Frank v. Warsaw, 129 App. Div. 936, 198 N. Y. 463.</p> <p>2. The duty and consequent liability of the municipality to keep its streets and sidewalks in a reasonably safe condition extend to those cases where the obstruction or unsafe condition is brought about by persons other than the agents of the city.. Birmingham y. Taloe, 105 Ala. 170; Galesburg y. Higly, 61 111. 287; Elkhart y. Ritter, 66 Ind. 287; Bourget v. Cambridge, 159 Mass. 388; Mac Evoy v. Saulte Ste. Marie, 136 Misc. 172 ; Carrington y. St. Louis, 89 Mo. 208; Foy y. Winston, 126 N. C. 381; Koch y. Williamsport, 195 Pa. 488; McKnight v. Seattle, 39 Wash. 516; District of Columbia v. Sullivan, 11 App. D. O. 533-; Aiken v. Philadelphia, 43 W. N. C. 501; Hawks v„ Northampton, 116 Mass. 420.</p>

Hearing on an appeal from a decision of the Commissioner of Patents in an interference proceeding. The Court in the opinion stated the facts as follows: This in an appeal by Albert S. Hubbard, from the decision of the Commissioner of Patents in an interference proceeding awarding priority of invention to appellee, Ernst J. Berg, the senior party.

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

<p>Hearing on an appeal from an order of the Supreme Court of the District of Columbia denying a claim of dower in an award made in a condemnation proceeding.</p> <p>The Court in- the opinion stated the facts as follows:</p> <p>This is an appeal by Virginia Talty from an order denying a claim of dower in an award made in a condemnation proceeding.</p> <p>John E. Talty died January 25, 1892, leaving a widow,, Elizabeth R. Talty, and three children, Robert C., Albert W., and Richard C. R. Talty. John E. Talty left a will devising and bequeathing to his widow his entire estate for life, subject to some small charges, and providing: “At the death of my said wife my said estate shall be divided equally between my children, Robert C. Talty, Albert W. Talty, and Richard C. R. Talty, share and share alike.” Part of the estate consisted of parts of squares 634 and 685 in the city of Washington, proceedings to condemn which to public use were instituted on behalf of the United States in October, 1911. On the hearing before the commissioners appointed to appraise the value of the land, it was agreed by all parties at interest that the award should be made in one sum, leaving the matter of division between the parties claiming to the final determination of the court. The award in gross was $63,015. On motion to determine the interests of the several claimants, the following facts, in addition to those above stated, were agreed upon: The life tenant is alive. Albert W. Talty died intestate after 1902, leaving a widow, who still lives, but no child. Richard C. R. Talty died intestate December 25, 1908, leaving a widow, Virginia Talty, to whom he was married in 1906. He left no children. ' The widow survives and claims a dower interest in her husband’s interest in the land. She is between thirty-five and forty years of age, and the life tenant is between sixty-seven and seventy-two years of age. Upon hearing, the court entered an order denying that the widow, Virginia Talty, is entitled to dower in any portion of the award, and ordering payment of the same to said Elizabeth E. Talty and Eobert C. Talty by warrant drawn to their joint order.</p>

Hearing on an appeal by tbe respondents, the Commissioner of Patents, and one of the examiners of the Patent Office, from a judgment of the Supreme Court of the District of Columbia directing the issuance of the writ of mandamus commanding them to issue letters patent to the relator. The Court in the opinion stated the facts as follows: This is an appeal by E. B. Moore, the Commissioner of .Patents, and A. Gr.

Hearing on an appeal from a decision of the Commissioner of Patents in an interference case. The Court in the opinion stated the facts as follows: Appellant, Millard F. Field, appeals from the decision of the Commissioner of Patents awarding priority of invention to appellee, Howard D. Colman, for a warp-drawing machine. The counts of the interference are as follows: “1.