Volume 41 — Appeals, District of Columbia

Anveau by tbe plaintiffs from a decree of the Supreme Court of the District of Columbia, holding an equity court, sustain^ ing a demurrer to and dismissing a bill for an injInaction restraining the defendant from selling a patented product in alleged infringement of the rights of the assignees of the patentee.

<p>Criminal Law; Indictment; Joint Assault With One Weapon; Principals.</p> <p>1. Where each of the counts of an indictment against several defendants charges all of the defendants with assault with a single weapon, it is not defective for uncertainty as an indictment for a joint assault, merely because the respective counts charge different defendants with having held the -weapon.</p> <p>2. A count of an indictment, charging three named persons with committing an assault with a weapon in the hands of one of them, is not defective as charging a physical impossibility in respect of one who is not charged with having held the weapon, since, when persons act as principals, the act of each is the act of the others. (Citing sec. 908, Code, D. C. [31 Stat. at L. 1337, chap. 854].)</p>

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia dismissing his petition for a writ of mandamus to… Held: however, that, inasmuch as “neither the defendant in the suit nor his counsel had ever received any other or further notice of the application for the approval of any bond in this case until about 12 o’clock on Saturday, November 9, 1912,” there had not been a compliance with the rules of court as to such notice.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia convicting him of forgery.. The Court in the opinion stated the facts as follows: , Albert Dowling, appellant, defendant below, was charged in an indictment containing forty-two counts with forging and uttering twenty-one checks belonging to the firm óf Knott & Moler.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia convicting him of assault with intent to commit rape. The Court in the opinión stated the facts as follows: . This is an appeal from a judgment convicting appellant, William Monalokos, and sentencing him to imprisonment in the penitentiary, of an assault- with intent to ravish one Margaret A. Brown.

Hearing oil an appeal by the petitioner from an order of the Supreme Court of the District of Columbia overruling his demurrer to the answer of respondents the board of medical supervisors of the District of Columbia, to his petition for a writ of mandamus, and denying the writ, to compel the issuance by respondents of a certificate to enable him without examination to obtain a license to practise medicine.

Hearing oil an appeal by the respondents from an order of the Supreme Court of the District of Columbia awarding a writ of mandamus to compel them to pay relator his pension.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia convicting him of rape. The facts are stated in the opinion.

Hearing on an appeal by tbe respondents, tbe commissioners of the District of Columbia, from a judgment of the Supreme Court of the District of Columbia awarding a writ of mandamus compelling them to issue a pawnbrokers’ license to the relator.

Hearing on an appeal by the defendant from judgments of the Supreme Court of the District of Columbia, on consolidated indictments, convicting him of embezzlement and of taking away certain books with intent to injure and defraud another.

Hearing on an appeal by the plaintiff from a decree of the Supreme Court of the District of Columbia dismissing a bill to enjoin the payment of money in the hands of the Secretary of the Interior to the Mississippi Choctaw^.

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of the District of Columbia, on verdict, in an action for slander. Tbe Court in tbe opinion stated tbe facts as follows: This is an appeal from a judgment for the plaintiff, Antonio Di Marco, appellee here, in the supreme court of tbe District upon tbe verdict of tbe jury in an action for slander of plaintiff in relation to bis business.

Hearing on an appeal by tbe defendants from a judgment, on verdict, on tbe Supreme Court of tbe District of Columbia in an action brought to recover damages for breach of contract. Tbe Court in tbe opinion stated tbe fgets as follows: Plaza Hotel Company brought this action against John J. and Joseph K. Costinett, appellants, to recover damages for breach of contract; and recovered a judgment for tbe sum of $6,000.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia in favor of plaintiff in an action on a foreign judgment.

Hearing on an appeal by the defendants from a decree of the Supreme Court of the District of Columbia overruling their exceptions to the report of the auditor with respect to the proceeds of the sale of lands belonging to a decedent’s estate.

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia, on verdict, in an action to recover damages for personal injuries. Tbe Court in tbe opinion stated tbe facts as follows: Appeal from a judgment for tbe plaintiff, James M. Wood, appellee bere, in tbe supreme court of tbe District in an action for personal injuries alleged to have been caused by tbe defective and dangerous condition of a public alley. .

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia awarding the plaintiff damages for the encroachment of a foundation wall, but refusing to require the defendant to remove it from the plaintiff’s land.

Hearing on a motion of appellee to strike out a bill of exceptions or dismiss or affirm. The Court in the opinion stated the facts as .follows: The appellee, Susie A. Tyrrell, moves to strike out the paper purporting to he a bill of exceptions, and to dismiss or affirm. It appears that the judgment was rendered June 6, 1913. July 9, an order was entered extending the time to submit the hill of exceptions to August 20, 1913. The hill was prepared, and submitted on that day.

On error to the Police Court' of the District of Columbia to review a judgment quashing an information charging the defendant in error with violation of the act of Congress regulating street railways. The Court in the opinion stated the facts as follows: This ease comes up on a writ of error granted to review a judgment of the police court quashing an information against the Capital Traction Company.

Hearing on an appeal by the petitioner from a decree of the Supreme Court of the District of Columbia, holding a Prohate Court, dismissing her petition for partial distribution of the estate of her deceased husband.

Hearing oil an apjieal by the respondents from an order of tbe Supreme Court of the District of Columbia confirming tbe verdict of a jury in a proceeding instituted by petitioners for tbe condemnation of certain land for the establishment of a park. The Court in the opinion stated the facts as follows: This is an appeal by Martin Wiegand, Corbin Thompson, Philadelphia, Baltimore, & Washington Railroad Company, the Merchants’ Transfer & Storage Company, and Levi II.

Hearing on an appeal by the defendants, the Secretary of the Interior and the Commissioner of the General Land Office, from a decree of the Supreme Court of the District of Columbia enjoining them from proceeding in the matter of certain attempted entries under the public land laws. The Court in the opinion stated the facts as follows: This appeal is from a decree in the supreme court of the District enjoining Franklin II.

Hearing oh an appeal by tbe defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in favor of plaintiff in an action of trover for the alleged conversion of a picture. Tbe Court in the opinion stated tbe facts as follows: Tbe declaration of Nose Keeling Hutchins charged the defendant, V. G. Fischer Art Company, appellant, with tbe conversion of a Gainesborongb picture, alleging damages at $25,-000.

Hearing on an appeal by the defendant, the United States marshal for the District of Columbia, from a judgment of the Supreme Court of the District of Columbia entered upon verdiet of a jury in an action brought to recover damages for the loss of plaintiff’s boat while in defendant’s custody as marshal, alleged to have been caused by his negligence.

Tddaring on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia in an action upon a foreign judgment. The Court in the opinion stated the facts as follows: This is an action in debt upon a foreign judgment recovered against William W. Rogge, appellant, defendant below, on March ¡51, 1897, in the court of law and chancery of the city of Norfolk, State of Virginia.

<p>Evidence; Negligence; Release; Questions foe Jury; Failure to Call Witness.</p> <p>1. The trial court can properly withdraw a case from the consideration of the jury only when, conceding the truth of the testimony offered by the party having the burden of the issue, and giving effect to every legitimate inference that may be deduced therefrom, it is plain that the party has not made out a case sufficient in law to entitle him to a verdict. If fair-minded men might honestly draw different conclusions from the evidence, it must be submitted to the jury for consideration, under proper instructions as to the law governing the ease.</p> <p>2. A plaintiff in an action for personal injuries against whom a release is pleaded is entitled to have the case submitted to the jury on her testimony that, while alone and suffering pain and incapable of judging the extent of her injuries, the defendant’s claim agent gave her a sum of money, presented a paper which she was led to believe was not a release, and to which her mark was affixed, and that she does not remember touching the pen. (Referring to Chesapeake & O. R. Co. v. Howard, 14 App. D. C. 262; Rockwell v. Capital Traction Co., 25 App. D. 0. 98, 4 Ann. Cas. 648; Baltimore & 0. R. Co. v. Morgan, 35 App. I). C. 196; and Washington R. & Electric Co. v. McLean, 40 App. IX C. 465.)</p> <p>3. Any inference from the failure of a plaintiff in an action for personal injuries to call as a witness her daughter, whose name appears as that of a witness on a release alleged to have been signed by the plaintiff, is one for the jury to make, and not one for the court.</p>

<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 plaintiffs for want of a sufficient affidavit of defense, in an action to recover for rent alleged to be due and owing under a lease of premises occupied by defendant.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This appeal is from a judgment for George A. Didden and Mary G. Didden, appellees, plaintiffs below, in the supreme court of the District, under the 73d rule of that court.</p> <p>On the 27th of February, 1912, the defendant and plaintiff’s assignor signed a lease under which the defendant was to occupy certain premises in this city for the. term of five years, for the purpose of conducting and carrying on therein an automobile garage business. The lease contains the following: “And that at the end thereof (that is, at the termination of the lease) he (defendant) will peaceably and quietly deliver up the said premises in as good condition as the same are now, reasonable wear and tear thereof and damage by the elements excepted, it being understood and agreed that the party of the second part (defendant) is to make all necessary repairs to said premises .during the term aforesaid, and the party of the first part is to make repairs only to the roof of said premise's, party to the second part to' make all repairs to elevator, pump, and fixtures. And it is. further agreed that, in event the premises hereby demised be so injured by fire, the elements, or other casualty as to be rendered untenantable, rent, during the time said premises shall so remain unfit for occupancy, shall cease, but shall begin again as soon as said building is rebuilt or repaired, which rebuilding or repairing the said lessors agree to do with reasonable speed; if said premises shall, however, be totally destroyed by fire, the elements, or other casualty, then this lease shall cease and determine and all liability for rent hereunder shall cease upon payment of the rent to the day of the fire or other casualty.”</p> <p>In the affidavit of defense it is set forth that “on the 24th day of November, 1912, the elevator in the building on the aforesaid premises, wliicli had been erected and constructed prior to his occupancy, without fault, negligence, or carelessness on his (defendant’s) part, or on the part of his agents, but by reason of its improper construction, was wrecked and became entirely unfit for use, and that by reason of said casualty, said premises became untenantable,” etc. The defendant insists that the wrecking- of the elevator, as set forth in his affidavit of defense, constituted a casualty within the meaning of the terms of the lease, and hence that he was excused from paying rent until such time as the demised premises were made tonantable by the lessor's.</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 plaintiffs for want of a sufficient affidavit of defense, in an action to recover rent alleged to he due and owing under a lease of premises occupied by defendant.

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

Hearing on an appeal by tbe defendants from a judgment.of- . the Supreme Court of the District of Columbia on a verdict directed by the court in an action of ejectment. ■ The Court in the opinion stated the facts as follows: This is an appeal from a judgment in an action of ejectment.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action for conspiracy.

Hearing on an appeal from so much of a decree of the Supreme Court of the District of Columbia as dismissed appellant’s cross bill for a divorce. The facts are stated in the opinion.-

Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia sustaining a demurrer to a bill in equity to subject certain real estate held by defendant as trustee to the payment of a claim of the complainant. .

Hearing on an appeal by the plaintiffs from a decree of the Supreme Court of the District of Columbia sitting as a court of equity, in defendants’ favor in a suit to enforce a mechanics’ lien. The facts are stated in the opinion.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of- Columbia, on verdict, in an action upon an insurance policy issued, by defendant on plaintiff’s automobile.' ■.

Hearing on an appeal by the defendants from a judgment oE the Supreme Court of the District of Columbia, on verdict, in an action to recover damages for injuries resulting from plaintiff’s imprisonment by defendants in a cold storage room.

Hearing on an appeal by the defendant from a judgment of the District of Columbia entered upon motion of plaintiff for want of a sufficient affidavitj>f defense in a suit on a promissory note. The Court in its opinion stated the facts as follows: This is an appeal from a judgment in a suit upon a promissory note. Appellee, Howard W. Phillips, plaintiff below, filed an affidavit of merit with his declaration.

<p>"Pleading: Detinue: Stipulations and Amendments; Verdict.</p> <p>1. A declaration in detinue is not subject to tbe objection that it fails to allege detention, and does not demand the return of tbe chattels, where it was stipulated by the parties that it should be considered and defended as a declaration in detinue, and the plaintiff amended by claiming the return of the chattels or their value.</p> <p>2. A verdict- for a gross sum in detinue is not objectionable as failing to specify the chattels and the separate value of each, when rendered in pursuance of express stipulation of the parties.</p>

<p>Hearing on an appeal from a decision of the Commissioner of Patents in an interference proceeding.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from concurrent decisions of the tribunals of the Patent Office in an interference proceeding, awarding priority to Hermann Pottinger, the appellee. The invention relates to a fluid power transmission device, and the issue is expressed in five counts, but the first sufficiently illustrates the nature of the invention, and is here reproduced:</p> <p>“1. In a hydraulic power transmitting apparatus, the combination with a rotatable driving member, of a driven member adapted to rotate independently of said driven member, a casing inclosing said members and adapted to contain a liquid, a plurality of vanes on said driven member, the vanes on said driving member being adapted to direct liquid in a direction which has a radial component to the vanes of said driven member, and means for controlling the amount of liquid flowing to said driven member.”</p> <p>As originally declared, the interference involves an application of Hermann Fottinger filed January 26, 1910, and an application of Carlton E. Eadcliffe filed June 28, 1901. Pottinger filed a motion to shift the burden of proof, based upon an' alleged disclosure in an earlier application filed June 19, 1906, No. 322,395. The Examiner of Interferences ruled that this earlier application of Eottinger clearly disclosed the invention, and therefore granted the motion. In this decision he followed the decision of the Primary Examiner. As no testimony was taken by Radcliffe, he was required to show cause, under rule 119, why judgment on the record should not be rendered against him. Thereupon he tiled an answer, asserting that the counts of the issue were not patentable to either of the parties, in view of certain references, and that Eottinger was not entitled to the benefit of his earlier application. The Examiner of Interferences refused to consider the question of patentability, and held that Eottinger’s earlier application contained a full disclosure of the invention. Priority was therefore awarded Eottinger, and this,decision was later affirmed by the Examiners in Chief and then by the Commissioner in a well-considered opinion.</p>

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

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

<p>Trademarks; Res Judicata: Similarity.</p> <p>1. An adjudication of similarity on an opposed application for tbo registration of a. technical trademark is conclusive in subsequent proceedings to register the same mark under the ten-years’ clause of the trademark act.</p> <p>2. A final adjudication of similarity, upon which a plea- of res judicata may be predicated, occurs when the applicant’s demurrer alleging that the opposer’s mark is so dissimilar and distinctive on its face as to make confusion or deception impossible, is overruled, and the applicant subsequently obtains a default judgment awarding him priority in the adoption and use “of the trademark in issue.” (Citing Carter Medicine Co. v. Barclay, 36 App. D. C. 123.)</p> <p>3. Two marks, that of the applicant consisting of a rhombic- figure bearing the words, "Reuter’s Little Pills for the Liver,’’ and surrounded by other words, and that of the opposer consisting of a square figure bearing the words, “Carter’s Little Liver Pills,” around which are placed words of much the same import and in the same arrangement as those in tlie applicant’s mark, — would, if concurrently used, be likely to work such confusion and deception as to disentitle the applicant to the right of registration,, where the opposer is entitled to priority; and the fact that colors of the two marks are different does not affect the question, where no mention of color is made in the application.</p>

Hearing on an appeal from a decision of the Commissioner of Patents refusing an application for the registration of a trademark. The Court in the opinion stated the facts as follows: Dennis D. Barrett’s original application for registration of a trademark was accompanied with a label. The figure represented thereon is an ancient Gaelic symbol showing an outer and an inner circle surrounding a scroll-work design.

Hearing on an appeal by the 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.

<p>"PATENTS; MASTER AND SERVANT; IMPROVEMENTS.</p> <p>Ail employer who conceived-the-general plan of-an invention, and not the employee whom he engaged to perfeet it, is entitled to improvements ancillary to the preconceived plan, which the employee designed to realize the employer’s conception.</p>

Hearing on an appeal from a decision of the Commissioner of Patents reversing a decision of the Examiners in Chief in an interference proceeding.

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.

Hearing on an appeal from a decision of the Commissioner of Patents sustaining an opposition to the registration of a trademark. The Court in the opinion stated the facts as follows: This is an appeal from the Commissioner of Patents in a-trademark opposition in which Reed & Carnrick, appellees, seek to prevent the Waterbuiy Chemical Company, appellant, from registering the word “Pinozyme” as a trademark for.certain medicinal preparations.

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

Petition for a special appeal or certiorari from an interlocutory decision of the Commissioner of Patents. The facts are stated in the opinion.

Hearing on an appeal from a decision of the Commissioner of Patents denying registration of a trademark. The Court in the opinion stated the facts as follows: The Gorham Manufacturing Company appeals from the refusal of registration of a trademark for solid and sterling silverware.

Hearing on an appeal by the purchaser from an order of the Supreme Court of the District of Columbia setting aside an execution sale of certain real estate. The Court in the opinion stated the facts as follows: Appeal from an order of the supreme court of the District setting aside an execution sale of certain real estate of appellee, J ames B. Shamwell.

Hearing oh an appeal by tbe complainants from a decree of the Supreme Court of the District of Columbia dismissing a bill in equity to enjoin the sale of real estate under a deed of trust, and to cancel the promissory note secured thereby.

<p>Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia dismissing an action as to two of several defendants, all of whom had demurred to the declaration. '</p> <p>The Court in the opinion stated the facts as follows:</p> <p>Action in tort brought in the supreme court of the District of Columbia by .Martin Both, appellant, 1.o recover damages from the appellee hanks, The Mercantile Bank of Washington and The Union Savings Bank, and a number of individual defendants.</p> <p>Defendants demurred to the declaration, and the deimu'ror was sustained as to the hanks and overruled as to the other defendants. Judgment was entered in favor of the hanks, from which this appeal was taken.</p>

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

Hearing on an appeal from a decision of the Commissioner of Patents rejecting certain claims in an application for a patent. The Court in the opinion stated the facts as follows: This is an appeal from a decision of the Commissioner of Patents refusing to grant appellant, Horace H. Capron the following claims on an improvement in concrete mixers: “1.

Hearing on appeals from two decisions of the Commissioner of Patents in separate interference proceedings. The Court in the opinion stated the facts as follows: This is an appeal from two decisions of the Commissioner of Patents in separate interference proceedings embraced within a single record.

Hearing on an appeal from a decision of the Commissioner of Patents refusing a patent on two claims. Tlie Court in tlie opinion stated the facts as follows: Appeal from a decision of the Commissioner of Patents refusing a patent on two claims. Claim No. 1 is sufficient for our purposes here; “1.

Hearing on an appeal by tbe plaintiffs from a decree of the Supreme Court of the. District of Columbia sustaining a demurrer to a bill to enjoin defendant, the Secretary of the Interior, from allotting lands to freedmen Olierokees, and from distributing to them funds of which plaintiffs claimed to be the exclusive owners.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia on verdict for the plaintiff, in an action brought to recover damages caused by the publication of a libel.

<p>Hearing oil an appeal by tlie defendants from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover damages for an alleged wrongful levy upon personal property of plaintiff under a writ of attachment</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from a judgment in the supreme court of the District for the plaintiff, Jessie C. Lane, appellee here, in an action for trespass de bonis aspoHatis for an alleged wrongful levy by Auliclc Palmer, the marshal of the District, one of the defendants below, upon personal property of the beneficial plaintiff, under a writ of attachment before judgment, by one Chamberlaine, against plaintiff’s husband.</p> <p>There appears to be no dispute that the writ of attachment under which the marshal acted was regular in form. Armed with the writ, the marshal, by his deputy, who was accompanied by the plaintiff in the attachment proceeding, on September 13, 1909, went to the residence of the plaintiff herein and her husband, where was located the property to be levied upon, consist^ ing of pictures, paintings, and rugs. Mr. and Mrs. Lane (plaintiff herein and her husband), a Mr. LL W. Yan Senden, and another, were present. According to the evidence for the plaintiff the deputy was informed by Mr. and Mrs. Lane that the property belonged to Mrs. Lane, and that Mr. Yan Senden stated: “The pictures and rugs are the property of Mrs. Lane, and I have a bill of sale upon them, and if you take them, you take them at your peril.”. According to the evidence for the defendants, Mr. Yan Senden claimed that the property was his, and “that he was entitled thereto and to the possession thereof by virtue of the said bill of sale,” and that the deputy would take said property at the marshal’s peril. Thereupon the deputy announced that he must obey the instructions of his office, and proceeded to take down the pictures from the Avails, called in two appraisers, and had the rugs and pictures appraised, the rugs rolled up, and some of them taken out on the back porch.. It Avas then agreed by the plaintiff in the attachment proceedings, Mr. Ohamberlaine, and Mr. Lane, with the consent of the deputy, that the goods should not be removed from the premises that night, but should remain in the custody of Mr. Lane until the' following morning, when a Avatehman might be put in charge of them. The folloAving morning, September 11, 1909, a watchman was put in charge of said property by the marshal, and ho remained in charge thereof until the 18th of September, when the property was seized by the coroner of the District on a writ of replevin in a suit by Mr. Van Senden, and, on the 23d day of September, without having theretofore been removed from the premises, delivered to Mr. Van Senden, in whose possession the property has since remained.</p> <p>The bill of sale, which was duly recorded, to Mr. Van Senden, was in consideration of the payment by him to Mrs. Lane of $2,100. It recites that the property covered by it “will be delivered to said 3L W. Van Senden when he sends for same.” While it was in form an absolute bill of sale, according to the evidence it was in effect a chattel mortgage.</p> <p>There was no evidence of oppression or other aggravation on the part of the deputy in making the levy, nor is there any dispute as to the right of Mr. Van Senden to the attached property.</p> <p>One of the pleas hied by the defendants was the following: “5. After the seizure and taking by the defendant, Aulick Palmer, on, to wit, the 13th day of September, a. d. 1909, of the goods, chattels, and personal property in the declaration mentioned, the same was thereafter, under a writ of replevin duly issued at the suit of one Herman W. Van Senden against the defendant, Aulick Palmer, in the certain action at law No. 51,914 on the dockets of the supreme court of the District of Columbia, and on, to wit, the 18th day of September, a. n. 1909, taken from the custody and possession of tbe said defendant by the coroner of the District of Columbia, and since tbe said last-mentioned day and date none of tbe said goods, chattels, and personal property has been in the possession, custody, or control of the said defendant; wherefore, since the said last-mentioned day and date the said defendant has not deprived the said Jessie C. Lane of any part of the said goods, chattels, and personal property, or the possession thereof; ■ and this the defendants are ready to verify.” To this plea plaintiff interposed a demurrer averring: “1st. That the marshal, having taken the property from the possession, of the use plaintiff, cannot plead in defense thereto that someone else took the property from him, or the right of a third party to the goods. '2d. That said plea does not present a material issue.” The demurrer was sustained.</p> <p>Over the objection and exception of the defendants, the court, at the request of the plaintiff, instructed the jury that if they believed from the evidence that, at the time of the seizure of the goods mentioned in the declaration, such goods were in the possession of the plaintiff, their verdict must be for the plaintiff, unless they believed that the goods were actually owned by Mr. Lane.</p> <p>The defendants requested the court to charge the jury that if they believed from the testimony that, at the time of the attachment and prior to the actual levy of the same, Mr. Van Senden was present and claimed the property by virtue- of his bill of sale, such an act on his part constituted the taking possession by him of the property, so that it was not in the possession of the beneficial plaintiff, and hence that she could not recover. A further prayer, based upon said fifth plea, was requested by the defendants to the effect that if the jury should find t....c, after the levy upon the property by the marshal, the same was seized and taken from him by the coroner of the District upon a writ of replevin, and that thereafter the property was not in the custody and control of the said defendants, no damages should be awarded to the beneficial plaintiff after such seizure by the coroner. Each of these prayers was refused, and an exception noted. The jury returned a verdict for the plaintiff in the sum of $3,000.</p> <p>1. The attempted levy was upon the property, and against the right, of Van Senden, and not of the plaintiff, (a) Actual possession of the property by Van Senden was not necessary.</p> <p>The bill of sale was duly executed, acknowledged, and recorded,-and is, as between the parties thereto, and those having notice thereof, valid and effective to pass thé title, to the chattels. therein described, even though the vendor remain in possession thereof. Colbert v. Baetzer, 4 App. D. C. 416; Eastern Trust, etc. Co. v. Willis, 6 App. D. C. 383; Hume v. Biggs, 12 App. 1). C. 366; United States v. Groome, 13 App. D. C. 470.</p> <p>The recording of a chattel mortgage stands as notice to all the world of the existence of the lien thereby created as it stood when the mortgage was executed, and that the mortgagee would have the right to take possession thereunder; and when taken, the possession relates back to the time of the execmtion of the mortgage. Thompson v. Fairbanks, 196 U. S. 516, 521, 524.</p> <p>But whether duly recorded or not, notice of the bill of sale and the claim thereunder to the marshal was alone sufficient for the assertion of Van Senden’s right in the premises.</p> <p>A sheriff who sells property upon which there is a mortgage, and of which he has notice, is liable to the mortgagee for the value of the same. Gilbert v. National Cash Beg. Go. 67 111. .606; Stale v. White, 70 Mo. App. 1; Worthington v. Hanna, .23 Mich. 53; Hudlrnantel v. Vinton, 112 Mich. 47.</p> <p>It is sufficient if there be such a title as draws after it a constructive possession. Gauche v. Mayer, 27 111. 133.</p> <p>After demand by the owner upon a sheriff for property seized by him. under a writ against another, the sheriff is liable to the owner. Armstrong v. Bell, 102 By. 149.</p> <p>The "‘owner'" was a mortgagee living, not in the city where the levy wras made, but in another city, where the mortgage was recorded; and the notice held by the court sufficient to have arrested the levy was a simple verbal statement to the sheriff by the mortgagor of the fact of the mortgage.</p> <p>And it is not necessary to a mortgagee’s demand upon the sheriff to arrest a levy, or to his right thereafter to sue the sheriff, for a conversion, that the mortgagee be at the time entitled to possession. Wells v. Chapman, 59 Iowa, 658; Scaling v. Bank, 87 S. W. 715; Taylor v. Seymour, 6 Cal. 512; Killey v. Seamnell, 3 2 Cal. 73; Fuller Co. v. McDade, 313 Cal. 36; McGraw v. Bishop, 85 Micb. 72; Anderson v. Cook, 100 Mich. 623 ; Benton v. McCord, 96 Ga. 393; Snyder v. IHM, 32 By. 204.</p> <p>If, after notice of claim of a mortgagee -to a sheriff about to levy, the sheriff proceeds with the levy, the mortgagee may replevy the property seized. Coleman v. Reel, 75'Iowa, 304; Van Matter v. Lucas, 64 N. J. L..182.</p> <p>A sheriff making a seizure of property after he has been informed that the title is not in the debtor, but in some third person, is bound, with the seizing creditor, to indemnify such third person in damages. Aticinson v. Atkinson, 15 La. Ann. 491.</p> <p>A sheriff refusing to recognize a vendor’s right of stoppage in transitu, and thereafter selling the goods which are subject to that right, is answerable for their value to the vendor. Harris v. Tenney, 85 Tex. 254.</p> <p>It is immaterial whether the notice of claim be given to the officer before or after the writ is placed in his hands. Stuart v. Broivn, 60 Iowa, 275.</p> <p>If a sheriff takes the property of one to pay the debt of another, whether he has knowledge of defect of title or not, he is liable to the real owner; and if he sells the property, he is liable to the purchaser for a return of the purchase money, if the property is recovered by the owner. Harrison v. Shanks, 13 Hush, 620.</p> <p>(b) Assuming actual possession by Van Senden of the property in question to have been necessary at the time of the attempted levy, the circumstances constituted such possession, and made the levy one in effect upon his property and not upon that of the plaintiff. McLoud v. Wakefield, 70 Vt. 558; Smith v. Judge, 53 Mich. 560; Tannehill v. Tuttle, 3 Mich. 104; Williams v. Dobson, 28 Cal. 110; Dunlop v. Steele, 80 Ala. 424; See Udell y. Slocum, 56 111. App. 216 ; Merñtt v. Miller, 13 Vt. 416; Sloan v. Surety Co. 77 N. Y. Supp. 561; Smith v. Smalley, 46 N. Y. Supp. 277, and cases cited. See Beaman v. Bank, 35 Colo. 373.</p> <p>2. It may not be doubted that the defendants might properly assert and show the right of Van Senden in the pr< mises. The defendants were sued for the alleged wrongful taking of the property of the plaintiff. Any fact showing 'that thb property taken was not that of the plaintiff is good in defense of the action. Cresweü v. Smith, 61 S. 0. 575 ; Mansfield v. Sumner, 3 Met. 91.</p> <p>3. The defendants might properly rely upon the taking of the property by replevin from the marshal as absolving them from any subsequent liability in respect thereof. Phoenix Co. v. Arbuckle, 52 111. App. 33; Kreher v. Mason, 20 Mo. App. 29; Tun Mater v. Lucas, supra; Mansfield v. Sumner, supra; Woodward v. McDonald, 116 (la. 718; Tagert v. Hill, 1 N. C. 277 (Conference Reports, 161, 2d ed. 283); J. B. Sanarens & Co. v. True, 22 La. Ann. 183; Lowenberg v. Jeffries, 71 Fed. 385; Governor v. Gibson, 14 Ala. 326.</p> <p>1. There can be no longer any doubt that the sureties upon the bond of a United States marshal are liable, as well as tbe principal, upon his official bond, for taking the goods of one person under a writ commanding him to take those of another. Lammon v. Feusier, 111 U. S. 17; Buck v. Oolbath, 3 Wall. 231; Snively v. Fahnestock, 18 Md. 391.</p> <p>2. In cases of attachment before judgment, where the marshal (sheriff) takes goods and is sued for their illegal seizure, he must show, where the foundation of the attachment proceeding is the fraud of the defendant in that proceeding, that there was a debt due by the defendant in the attachment proceedings to the plaintiff therein, before he will he heard in defense of his seizure of the goods, and, if he has seized the goods claimed by the plaintiff in the case for damages against him, he will not be heard to say that the goods belong to a third party, or, in other words, to set up the jus tertii, unless all the proceedings in the attachment case, including the existence of the debt itself, are established by him to be regular. Damon v. Bryant, 2 Pick, 111; 25 Ene. p. 704, 2d ed.; Danville v. Mayhall, 128 Cal. 617; Sears v. Lyden, 49 Pae. 125; Pease v. Anderson, 44 111. 216; Mills v. Talbott, 63 Kan. 14; Homberger v. Brandenberg, 35 Minn.- 401; Howard v. Mander.field, 51 Minn. 337; Hines v. Chambers, 29 Minn. 7; Ford v. McMaster, 6 Mont. 240; Hakason y. Brodke, 36 Neb. 42; Winshell v. McKinzie, 35 Neb. 813; Keys v. Grannis, 3 Nev. 548; Van Etten v. Hurst, 6 Hill, 311; Noble v. Holmes, 5 Hill, 194; Darsen v. Acker, 23 Wend. 480; Smith v. Holt, 37 App. L)iv. 24; Bugbee v. Lorn-back, 88 Wis. 271; Bogert v. Phelps, 14 Wis. 8S; Lammon v. Feusier, 111 H. S. 17; United States y. Hine, 3 McArtli, 27; Wanamaker y. Bowes, 36 Md. 1.</p>

<p>Ahrest of Judgment; Pleading; Evidence; Lost Document, Proof of; Witnesses.</p> <p>1. The plaintiff is entitled, upon motion in arrest of judgment on a verdict in his favor, to every intendment of law that can be reasonably made; and every possible objection by the defendant will be presumed to have been made and overruled at the trial, (following Schwartz v. lieeseh, 2 App. D. 0. 440.)</p> <p>2. Unless a declaration fails in some form to state a cause of action (citing Chandler & T. Co. v. Korwood, 14 App. D. C. 357), defects and inaccuracies therein are not available in support of a motion in arrest of judgment rendered on a verdict in plaintiff’s favor, no demurrer having been interposed.</p> <p>3. An unsigned paper claimed to be a copy of a lost reggipt^ which was not executed in duplicate, is not admissible in evidence in favor of the author of the original, where it was not made with the knowledge and consent of the other party, it being only a self-serving memorandum made by the former.</p> <p>4. No necessity for refreshing a witness’s memory, which requires the admission of a purported copy of a lost instrument, which is incompetent as direct evidence, exists where the witness has a distinct recollection of the original, and states the substance thereof from an unrefreshed memory. (Citing Gurley v. MaeLennan, IT App. D. 0. 370)"TniírT)gffll¡rísí v. Atkinson, 31 App D. C. 1.)</p>

Hearing oil an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia convicting him of seduction.

IÍKARINÜ on an appeal by trustees from a decree of tbe Supreme Court of tlie District of Columbia, adjudging title to certain certificates in a real estate company, with tbe accrued dividends thereon, to he in the defendant. The Court in the opinion stated the facts as follows: This is an appeal from a decree in tlie supreme court of the District in favor of appellee.

<p>Hearing on an appeal (specially allowed) from an order of the Supreme Court of the District of Columbia, holding a probate court, granting a commission to take depositions of certain witnesses in foreign countries on oral examination.</p> <p>The Court in the opinion stated the facts as ¿follows:</p> <p>This is a special appeal allowed from an order of the supreme court of the District granting a commission to take depositions of certain witnesses in foreign countries.</p> <p>Appellees, Walter Stilson Hutchins, and Charles L. Fráiloy, as caveatees in a caveat filed by the appellant, Lee Hutchins, to the probate of the will of Stilson Hutchins, deceased, moved for a commission to take depositions of witnesses in said proceeding who reside in Great Britain and France, — the names of. the witnesses and the places of taking depositions' being set out. Over the objection of the caveator, the court entered an order for commissions to issue to take the depositions on oral examination. The objection of the caveator was that the court had no power to pass an order for the oral examination of witnesses residing beyond the sovereignty of the United States.</p> <p>The single question presented is whether the court has the power to issue a commission for the ora] examination of witnesses living in a foreign country? The contention of the caveator is that such examinations can he had only upon interrogatories and cross interrogatories in writing.</p> <p>1. There wns no eommon-law power to take depositions out of court. Bl. Bk. HI. pp. 381-385; 2 Tidd, Pr. 4th Am. ed. 3856, p. 830 ; Cox, Common Law Pr. p. 88.</p> <p>2. The statute does not authorize the taking of depositions orally of a wetness without the sovereignty of the United States. Kx parle Fisk, 313 U. S. 713; 2 Dan. Ch. PI. & Pr. Perkins ed. pp. 1084, 1085; The Argo, 2 Wheat. 287.</p> <p>1. The judiciary act provided for taking depositions of witnesses in foreign countries under a dedimus potestaiem, and the Federal courts frequently have ruled foreign depositions might be so taken, instead of by letters rogatory, the latter being merely resorted to in the last extremity. Stein v. Bowman, 13 Pel. 209 — 219; lluddicum v. Kirk, 3 Cranch, 293 — 297; Irving v. Sutton., 1 (‘ranch, C. C. 575; Prevail v. Bache, 5 ('‘ranch, C. C. 463; Nelson v. United Stales, Pet. C. 0. 235, Fed. Cas. No. 10,116; Winlhrop v. Union Ins. Go. 2 Wash. C. O. 7; Peters v. Prevost, 1 Paine, O. C. 64-67; Walsh v. Walsh, 3 Cranch, O. 0. 651.</p> <p>2. Common usage means the usage in force in 1874, when the Revised Statutes were adopted. Prior to that time by amendment to rule 67 the supreme court had by rule declared oral examination should be the rule, and examination by written interrogatories the exception. Since that time the Federal courts have repeatedly, over objection, directed that foreign depositions should be taken orally under a dedimus. United States v. Fifty Boxes of Lace, 92 Fed. 601; Bischofschein v. Baltzer, 10 Fed. 1; Cories Co. v. Tannhauser, 18 Fed. 667; Holliday v. Schultzeberge, 57 Fed. 660; Encyclopedia Britannica Co. v. Werner Co. 138 Fed. 461; Zych v. American Car Co. 127 Fed. 724; Hollander v. Baiz, 40 Fed. 659; Componía Ayucarera Cubana v. Ingraham, 180 Fed. 516; Maryland Trust Co. v. Kirby Lumber Co. 149 Fed. 443.</p> <p>3. The State courts have held foreign depositions should be taken orally, preferably by commission, that letters rogatory should be resorted to only in the last extremity, and that the commission could, if necessary, have witnesses sworn by local foreign officers. Lincoln v. Batelle, 6 Wend. 475; Anonymous, 59 N. Y. 313; Feme v. Public Administrator, 3 Bradf. 264; Farnsworth v. Pierce, 7 Vt. 83.</p>

<p>Hearing on an appeal by tbe defendant from a judgment of the Supreme Court of the District of Columbia on verdict, in an action on a bond.</p> <p>Tbe Court in the opinion stated the facts as follows:</p> <p>This is an appeal from a judgment in the supreme court of the District in favor of Mattie MeC. Hine and Robert E. Hine, appellees, plaintiffs below, the action being one in debt on a bond.</p> <p>The use plaintiffs are respectively the widow and surviving child of Robert B. Hine, who died in 1895. By his will the decedent devised to his widow for life, remainder to an only child, Robert E. Hine, in fee. In the event of the remarriage of the widow during the son’s lifetime, the will provides that she shall bo entitled to one half only of the income, the residue going to the son. If such remarriage should take place after the son’s death sin; would then be entitled to the whole income for lifeugnd, upon her decease, the property to be sold and distributed to certain lineal and collateral relations of the decedent. The will was duly admitted to probate. Among tbe parcels of real estate devised was a dwelling bouse at 1712 L. street, N. W., in this city.</p> <p>In March, 1899, Mrs. Hine filed a bill in equity, making her then infant son and those having contingent interests in the estate parties defendant, and praying that said house be sold for the advantage of all concerned. The decree was entered July 6, 1899, directing the sale of the property, and Thomas E. Waggaman was appointed trustee for that purpose, the decree requiring him to give a bond in the penalty of $18,000, conditioned for the faithful performance of his duties as such trustee. The bond was duly executed, with Daniel B. Clarke as surety. Mr. Waggaman sold the property for a net sum of $8,147.72, and the sale was ratified by a decree dated August 22, 1899. The money realized from this sale was not paid into court, hut remained in the hands of the trustee. In August, 1904, Waggaman became bankrupt, and the fund was wholly lost. Up to that time he had paid Mrs. Hine interest on said net proceeds at the rate of 5 per cent' per annum.</p> <p>In February, 1905, the infant remainderman, upon petition, obtained a rule against Waggaman to make discovery of the amount and disposition of the proceeds of said sale, and show cause why such proceeds should not be deposited in the registry of the court and subject to its further order. In his answer, under oath, Waggaman stated, in substance, that on August 31, 1899, he had rendered unto the life tenant, Mrs. Hine, a true account of the proceeds of said sale, and that on that day 'it had been agreed between Mrs. Hine and himself that he should retain the balance in his hands, and pay her interest thereon at the rate of 5 per cent per annum, payable quarterly, which interest he had paid down to May or August, 1901. To this answer no replication was filed. Some six months thereafter separate motions on behalf of the mother and son were interposed to compel Waggaman, “upon consideration of the answer” he had filed, to pay into the registry of the court said fund of $8,117.72, and on November 21, 1905, the court, “upon consideration of the said motions and of the said answer,” entered a decree for' such payment to be made, with legal interest, from-August 1, 1901.</p> <p>On March 5, 1906, this action of debt was brought in the court below, in the name of the United States for the use of Mrs. Hine and her then' infant son. ' In the declaration two distinct breaches by Waggaman are assigned, first, his failure to pay the said sum into the registry of the court agreeably to said decree for sale-passed in 1899, and, second, his failure to pay agreeably to said decree' of November 21, 1905. Clarke alone appeared to this action, and, to each of the breaches assigned and as to each of the beneficial plaintiffs, interposed pleas which alleged the nullity of the proceedings in which the bond had been given. As to Mrs. Hine an additional plea was interposed, averring thát after the proceeds of said sale had come into the hands and possession of ’Waggaman, Mrs. Hine, without the knowledge or consent of the surety, had agreed with Waggaman that he should retain in his possession and for his own purposes the' fund in question, under the arrangement previously set forth, and that, prior to his adjudication as a bankrupt, Waggaman had appropriated this fund to his own use. To the plea alleging ah arrangement with Waggaman for the retention of the fund plaintiffs replied, joining issue. To the other pleas they demurred.</p> <p>Mr. Clarke died in June, 1906, and his executors were made jiarties defendant in his stead. Judgment under the 73d rule was rendered against the executors in the court below, and on appeal to this court the judgment was reversed upon a ruling that the proceedings in which the bond was given and the bond itself were nullities. Morse v. United States, 29 App. D. C. 433. This rendered it unnecessary to consider the plea of release as to the interest of Mrs. Hine. The case went back, and judgment for defendants was entered upon the pleadings, which judgment was here affirmed as a matter of course. United Stales ex rel. Hine v. Morse, 31 App. D. C. 433. The case was then taken to the Supreme Court of the United States, where the judgment of affirmance Was reversed as to the demurrer, and the cause remanded to have determined the issue of fact as to said arrangement between Mrs. Hine and Waggaman. The court said: “So much of the plea as sought to defend the action, in whole or in part, in consequence of the alleged agreement between the principal in the bond and Mrs. Hine, without the consent of the surety, remains at issue undisposed of(Italics ours.) United States use of Mine v. Morse, 218 U S. 493, 512, 54 L. ed. 1123, 1.130, 31 Sup, Ct. Rep. 37, 21 Ann. Gas. 782.</p> <p>Tn the trial below, evidence was introduced that Mrs. Hine has not remarried ; that she was then forty-six years of age and in good health; that her son Robert was born in 1889 and was in good health. Other evidence was introduced as to the present worth of'Mrs. TIine’s life interest and the remainder interest of her son.' There was also evidence as to the alleged agreement lx tween Mrs. Iline and Waggaman. Certain proposed instructions were submitted by the plaintiff, all of which were refused. The court then instructed the jury concerning the alleged agreement between Mrs. Hine and Waggaman, telling them that if they should find that such an agreement was entered into, “that would end the question of her right of recovery.” Reference was then had to the will, and it was explained to the jury that the use plaintiffs “can recover in this proceeding only that amount of money which measures the current value of their •respective interests in the fund, and Avhen they do recover that it will be theirs for all the future, absolutely; each one can recover only the present value of his or her estate of this sum of $8,147.72.” The jury Avere instructed that after having determined the value of the two interests they should compute interest thereon from the first day of August, 1904.</p> <p>To the charge of the court a single exception Avas noted by the defendants, and that was confined to the right of the son to receiAi-e interest from the time of Waggaman’s default. The jury returned a verdict in favor of Mrs. Time for $3,055.38, with interest of $1,527.69, and in favor of the son for $5,092.-34, with interest of $2,546.17. Thereupon motion for a uoav trial was filed and overruled, and judgment entered upon the verdict.</p>

Hearing on an appeal by the plaintiffs from a decree of the Supreme Court of the District of Columbia sustaining a demurrer to a bill in equity to redeem certain real estate from a sale under a deed of trust.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action of ejectment. The Court in the opinion stated the facts as follows: This is an appeal from a judgment in an action of ejectment to recover possession of lot 21 in George Truesdell’s addition to Washington Heights, brought by plaintiff, Samuel II. McMillan, against defendant, Thomas J. D. Fuller, April 12, 1912.

Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia holding an equity term, setting aside and vacating a deed executed by plaintiff to defendant. The Court in the opinion stated the facts as follows: This is a suit brought to set pside a deed. The bill of the appellee, Thomas.

TIuaring on an appeal by the plaintiffs from judgments of the Supreme Court of the District of Columbia upon a verdict directed by the court in consolidated actions for libel. The Court in the opinion stated the facts as follows: Those are actions for libel, and are here on bill of exceptions from judgments upon a directed verdict for defendant, the Evening Star Newspaper Company, at the conclusion of plaintiffs’ testimony. The cases were consolidated for trial.

The Court in the opinion stated the facts as follows: This action arose in the police court of the District of Columbia upon a criminal information charging Bernard Reagan, plaintiff in error, hereafter referred to as defendant, with a violation of the provisions of the act of Congress approved February 4, 1913 (37 Stat. at L. 657, chap. 26), commonly known as the “Loan Shark Law.” The information is in three counts.

Hearing on an appeal by tbe defendants from a decree of tbe Supreme Court of tbe District of Columbia bolding an equity term, adjudging certain instruments null and void, enjoining the defendants from asserting any rights under them, and declaring each of the defendants to be trustees for the legal heirs of a decedent.

<p>Hearing on an appeal by the defendants from a judgment of tbe Supreme Court of the District of Columbia, on verdict, in an action on the bond of the United States Marshal.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>Appellee Sarah L. Ernestine King, filed a declaration in the supreme court of the District of Columbia against defendants Aulick Palmer, United States marshal for the District of Columbia, and the United States Fidelity & Guaranty Company. The action is for damages upon the bond of the marshal and his surety to recover for an alleged breach of a covenant of the bond, which provided that the marshal, by .himself and his deputies, shall faithfully perform all the duties of his office. The alleged breach grew out of the execution of a writ of replevin issued in a suit against one Allen S. King, husband of plaintiff, directed to the marshal, commanding him to seize a certain sewing machine, which, it afterwards developed, belonged to plaintiff.</p> <p>It appears that the writ was placed in the hands of two of the marshal’s deputies, who proceeded to the residence of plaintiff. One of the deputies rang the basement door bell, and plaintiff answered through an adjoining basement window, when the deputy stated that he had some legal papers for Mr. King, to which plaintiff replied that her husband was not at home, and suggested that the papers be left with her to deliver to him. She then opened the window, and the deputy started to climb through it. Plaintiff stood in front of the window, placed lien hands on the shoulders of the deputy, and vigorously resisted his efforts to get through the window. Ido forced his way through, and, in doing so, pushed plaintiff against a shelf, whereby she sustained the injuries of which she complains. The sewing machine was in the front basement room and in plain view of any one looking through the window.</p> <p>Defendants filed a demurrer to the declaration, which was overruled. Thereupon they pleaded performance of the conditions of the bond, upon which plea issue was joined. From a verdict and judgment in favor of plaintiff, defendants have prosecuted this appeal.</p> <p>1. The entry complained of as trespass was lawful, as there was no “breaking” of the house of the appellee. Lee v. Cansel, Cowp. pt. 1, p. 1; Nixon v. Freeman, 5 Hurlst. & N. 647, 653; Nash v. Lucas, L. R. 2 Q. R. 590; 8andón v. Jervis, 96 E. C. L. 935 ; Conner v. Sparks, 6 Mod. 173; Anonymous, 7 Mod. 8; White v. Wiltshire, 2 Rolle Rep. 138; Curtis v. Hubbard, 1 Hill, 336; Freeman, Executions, § 256; 4 Bl. Com. 226; 2 Russell, Crimes, 901; State v. Kennedy, 16 Mo. App. 287; Ray v. State, 66 Ala. 281; McGrath v. State, 25 Neb. 280; Timmons v. The State, 34 Ohio St. 426.</p> <p>2. Even though the entry be considered a forcible breaking, the deputy marshal was not guilty of a trespass, because in the execution of the writ of replevin there is, in the officer executing the writ, the right to break and forcibly enter. Semayne’s Case, 5 Coke, 91, 1 Smith, Lead. Cas. 114; Jones v. Herron, 12 Pa. Co. Ct. 183; Howe v. Oyer, 50 Hun, 559; Keith v. Johnson, 1 Dana, 605; He Graffenreid v. Mitchell, 3 McChord, 506; Morris, Replevin, p. 114; Wells, Replevin, § 287, p. 162.</p> <p>1. The sheriff has no authority to break and enter a dwelling house for the purpose of executing a writ of replevin even after demand and refusal. Kelley v. Schuyler, 20 H. I. 432, 44 L.K.A. 435; State ex rel. McPherson v. BecJcner, 132 Ind. 371; State v. Arm-field, 2 Hawks, 246, 11 Am. Dec. 762; Curtis v. Ihibbard, 4 Hill, 437; Hillman v. Edwards, 28 Tex. Civ. App.; Gusdorf v. Duncan, 94 kid. 160.</p> <p>2. An entrance sufficient to constitute a breaking in burglary will render the officer guilty of trespass. Curtis v. Hubbard, 1 Hill, 336, 40 Am. Dec. 292.</p>

Hearing on an appeal by the plaintiff from a decree of the Supreme Court of the District of Columbia dismissing its bill filed for the infringement of certain patents. The facts are stated in the opinion.

Hearing on an appeal by tbe defendant from an order of tbe Supreme Court of tbe District .of Columbia confirming á verdict for tbe condemnation of certain land for a street extension.

Hearing on an appeal by tbe defendants from a decree of tbe Supreme Court of the District of Columbia directing them to pay to plaintiff the amount of taxes retained out of an award for land taken for public improvement.

Hearing- oil an appeal by tbe plaintiff from a decree of tbe Supreme Court of tbe District -of Columbia sustaining a demurrer to a bill in equity to enjoin tbe defendant, tbe Secretary of Agriculture, from publishing a notice of a judgment of tbe police court of tbe District of Columbia, imposing a fine upon tbe plaintiff for an alleged violation of tbe pure food act. - • Tbe Court in the opinion stated the facts as follows: This is an appeal from a decree of the supreme…

Hear tng on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action of ejectment.' The Court in the opinion stated the facts as follows: This is an appeal from a judgment in an action of ejectment, begun by Mary S. Rawlett against Franklin P. Xash, appellant, to recover the possession of lot 5 in square 611, city of Washington. A former trial resulted in a judgment for defendant, which was reversed.

Hearing on an appeal by the defendant from a judgment of tbe Supreme Court of the District of Columbia, on verdict, in an action brought to recover damages for injuries resulting in the death of plaintiff’s intestate.

Hearing- on an appeal by tbe plaintiff from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover an amount alleged to be due as a commission for- procuring a purchaser for certain real estate belonging to defendant. The facts are stated in the opinion.

Hearing oh 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 appeal is from a decision of the Commissioner of Patents in an interference proceeding awarding priority of invention to the appellee, Willis L. Riley. It is one of two interferences involving closely related subject-matter. By stipulation the testimony taken in each, so far as material, is made applicable to the other.

<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>

Hearing on an appeal from a decision of tbe Commissioner of Patents in an interference proceeding. The Court in the opinion stated tbe facts as follows: This is an appeal from concurrent decisions of the Patent Office tribunals in an interference case in wbicb priority of invention was awarded the appellee, George W. Campbell. Tbe application of tbe appellant Alexander T. Brown was filed November 16, 1907; that of Campbell November 16, 1906.

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 is an appeal from a decision of the Commissioner of Patents awarding priority of invention to Prank B. Martin, appellee.

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

Hearing on an appeal from a decision of the Commissioner of Patents dismissing an opposition to the registration of a trademark. ‘ The Court in the opinion stated the facts as follows: This is a trademark opposition. Appellee, The Philip Carey Manufacturing Company, filed an application in the Patent Office for the registration of the word “Asbestone” as a trademark for hard asbesto boards. It alleges adoption and continuous use since June 1, 1912.

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

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

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 on an appeal from a decision of the Commissioner of Patents rejecting an application for a patent.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from a decision of the Commissioner of Patents rejecting an application for patent having the following claim:</p> <p>“An appliance for supplying oxygen and air to divers and others, comprising a plurality of gas cylinders, a hollow connection between the said cylinders, a curved neck integral with said connection adapted to lie adjacent to one side of the body of the user of the apparatus, and means at the outer end of said curved neck adapted to control the supply of gas to the said user of the apparatus.”</p> <p>The claim is for an improvement in appliances for supplying oxygen air to divers, miners, and others for use in irrespirable atmospheres, which comprises a pair of gas cylinders in connection with a breathing apparatus. The specifications and accompanying drawings show two cylinders, carried on the back of the wearer, containing oxygen, or a mixture of oxygen and air in a state of heavy compression. The cylinders open into a common pipe, fitted with a controlling valve and a reducing valve, from which the oxygen passes to the breathing appliance at the desired pressure. The pipe has a connection fitted with valve and pressure gauge on a flexible tube to indicate the pressure in the cylinders. Upon opening the controller valve the compressed oxygen will flow through the reducing valve to the breathing apparatus. Should the reducing valve become clogged the wearer may open another valve and procure a supply of oxygen by a by-pass provided for the purpose. The patentable novelty relied on consists in the curved neck integral with the cylinder connection adapted to lie adjacent to one side of the body of the user of the apparatus, which enables him to see and readily control the valves with one or both hands. It was contended by the applicants that “in various types of breathing appliances in use, the valves are out of sight and almost out of reach of the wearer, and in consequence are exceedingly awkward to control, and there is always the greatest risk that the man may turn on or off the wrong valve. By curving the neck, however, this difficulty is obviated; the valves are brought foi'ward within easy reach of the wearer, and he can actually see his valves and control them without the slightest risk.”</p> <p>This contention was considered by the tribunals of the Office; and there was filed an affidavit showing that the applicant’s appliance had been sold to a considerable number of mining companies in this country. The references upon which the claim was rejected are: Garforth patent, December 29, 1908; •Taubert patent, March 9, 1909; Davis, British patent, December 14, 1906, and Suess, French patent, September 7, 1904.</p> <p>These references are fairly described in the statement of the Primary Examiner as follows:</p> <p>“The patent to Jaubert shows an appliance supplying respirable gas mixtures, such as oxygen and air, comprising a plurality of gas cylinders having hollow connections between said cylinders, and having a pipe or neck communication with said conneetions and with means at the outer end of said pipe or neck adapted to control the supply of gas to the user of the apparatus.</p> <p>“Applicants have made the pipe or neck on their apparatus curved and of greater length than is shown by Jaubert. The extra length is nothing more than a difference of degree, and the curving of the neck amounts to nothing more than a difference in design, the purpose of which is for a more convenient use. Neither one of the above variations is deemed patentable over Jaubert.</p> <p>“Applicants further set forth the point that the pipe C, as illustrated, is made integral with the connection between the cylinders. This, also, is considered unpatentable. Making the parts shown in Jaubert integral would not in the least change the operation and the ultimate result of the device. Jaubert’s apparatus functions exactly as applicants’ device functions.</p> <p>“The French patent to Suess, however, shows an integral neck with the connection between the cylinders, (See Figure 1,) and — Figure 1 of said patent the neck is of great length and is also curved, therefore covering all the features of applicant’s device as far as the structure claimed is concerned.</p> <p>“Furthermore, in order to show the idea of curving a part of an apparatus, similar in nature to applicants’ device, so as to fit the contour side of a person’s body, the patent to Gar-forth was cited, in which is shown a pipe 11 curved in the same way for the same purpose as ápplicants have done with the neck G in their apparatus.</p> <p>“This patent also show's the operating valve at the front of the person, thereby meeting applicants’ contention set forth in their letter of May 18, 1911, quoted in part as follows:</p> <p>“ ‘In various types of breathing appliances in use, the valves are entirely out of sight and almost out of reach of the wearer, and in consequence are exceedingly awkward to control, and there is always the greatest risk that the man may turn on or off the wrong valve. By curving the neck, however, this difficulty is obviated; the valves are brought forward within easy reach of the wearer, and he can actually see his valves and control them without the slightest risk.’</p> <p>“The British patent to Davis stands in the same position as Jaubert’s patent, with the added element of a flexible gauge tube and a gauge to be used in the same manner as applicants’ gauge tube is utilized.”</p> <p>The Examiners in Chief' adopted this view in a brief statement.</p> <p>On final appeal the Commissioner said:</p> <p>“The appealed claim covers the arrangement of the elements of a breathing apparatus, including oxygen tanks, etc., in such a form as to be convenient to the wearer. The claim distinguishes from the apparatus illustrated in the patent to Jaubert only in specifying that the ‘neck,’ shown at C on applicants’ drawing and at X in Jaubert, is integral with the connection-between the cylinders and is curved.</p> <p>“The purpose of the curve is to make the pipe fit more closely to the body of the wearer in a convenient way, and to bring the control valve in a convenient position.</p> <p>“There is clearly nothing patentable in making the so-called ‘neck’ integral rather than separable, and such a connection is shown in the Erench patent to Suess.</p> <p>“I agree with the holding of the tribunals below that the mere shaping of the connections to a convenient form, or to such form as to enable the tank to be worn upon a particular portion of the body, does not amount to invention. There is no new or unexpected function flowing from the particular arrangement specified in the claim. It is regarded merely as a matter of design or choice, and, assuming its superiority, is considered to he the result of good judgment rather than invention.”</p>

. Hearing on an appeal by tbe exceptant from a decree of the Supreme Court of the District of Columbia, holding a probate court, approving the final account of an administratrix. The Court in the opinion stated the facts as follows: This is an appeal from a decree of the supreme court of the District holding a special term for probate business, approving the final account of Bridget Flaherty, administratrix of the estate of Michael Flaherty, deceased.

Hearing on an appeal by the plaintiff from a judgment of tbe Supreme Court of the District of Columbia, on verdict, in an action on a bond. The Court in the opinion stated the facts as follows':' This is an appeal from a judgment for the appellee, Southern Surety Company, in the supreme court of the District upon a second trial held pursuant to the mandate of this court following its opinion in 37 App.

IIeartng on an appeal by tbe defendant from a judgment of the Supreme Court of the District of Columbia convicting him of sending a letter through the mails containing forbidden information. The Court in the opinion stated the facts as follows: Appellant, Thomas J. Hemp, defendant below, was convicted of the crime of sending a letter through tbe mails in violation of section 211 of the United States Criminal Code [35 Stat. at L. 1129, ebap. 321, U. S. Comp. Stat.

Heaiíing on an appeal by the plaintiffs from a decree of the Supreme Court of the District of Columbia, sitting as a court of equity, in a suit to recover secret profits alleged to have been made by certain defendants in the formation of a syndicate for the purchase of land.

Hearing oil an appeal by the defendants from a decree of the Supreme Court of the District of Columbia directing the return to a receiver of certain personal property, part of the estale of an insolvent corporation.

Hearing on an appeal from a decision of the Commissioner of Patents in an, interference proceeding: Tbe Court in the opinion stated the facts as follows: This is an interference proceeding relating to priority of invention of an improvement in vegetable-paring machines. Henry Kobinson has a patent for the invention issued December 14, 1909, on an application filed November 12, 1908. Orson W. Breniaer filed April 9, 1910.

Hearing on appeals from decisions of tbe Commissioner of Patents in interference proceedings.

<p>Hearing on appeals from decisions of the Commissioner of Patents in interference proceedings.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>The foregoing interferences relate to improvements in gyratory structures or sifters primarily intended for flour sifters, and have been argued and considered together.</p> <p>The first is between Jesse Warrington, on an application filed February 11, 1907, on which a patent issued July 2, 1907; and George W. Combs on an application filed September 24, 1907. The issue is defined in the following ten counts';</p> <p>“1. In combination, a suspended body, a shaft arranged centrally therein, and weighted, to. produce a gyratory. movement, a pin set eccentrically to said shaft and extending downwardly and resting in a step bearing whereby the weight of said shaft and its weights are supported, a fixedly mounted driver surrounding the axis of rotation, and a bearing in which said driver is mounted adjacent to the step-bearing carrying the pin.</p> <p>“2. In combination, a suspended structure arranged to have a gyratory movement, a driver therefor, a shaft mounted therein, a pin set eccentric to said shaft, a step bearing for said pin carrying the weight thereof and of the shaft, said step bearing being free to move over the surface of the support on which it rests.</p> <p>“3. Tn coinbination, a suspended structure arranged to have a gyratory movement, a driver therefor, a shaft mounted in bearings engaging with said suspended structure, a pin set eccentric to said shaft, and a chamber adapted to contain a lubricant and which is larger than said pin into which the lower end of said pin enters and upon the bottom of which it is supported and adapted to move.</p> <p>“4. In combination, a suspended structure arranged to have a gyratory movement, a driver therefor, a shaft thereto, a pin whose axial line is different from that of the shaft but operatively connected therewith, and a support upon which said pin rests having a friction surface over which said pin may move, whereby said pin and the parts carried thereby are frictionally restrained and the weight thereof supported.</p> <p>“5. In combination, a suspended structure arranged to have a gyratory movement, a driver therefor, a shaft thereto, a pin whose axial line is different from that of the shaft hut operatively connected therewith, a support upon which said pin rests, having a friction surface over which said pin may move, and a bearing-block interposed between said pin and the surface of said support.</p> <p>“G. In combination, a suspended structure arranged to have a gyratory movement, a driver therefor, a shaft thereto, a pin whose axial line is different from that of the shaft hut operatively connected therewith, and a support upon which said pin rests-having a friction surface over which said pin may move, said surface being surrounded by a wall thus forming algo a lubricant chamber.</p> <p>“7. In combination, a suspended structure arranged to have a gyratory movement, a driver therefor, a shaft thereto, a pin sot eccentric to said shaft, and frictional means coacting with the eccentric pin for restraining abnormal throws of the suspended structure during gyration.</p> <p>“8. In combination, a suspended structure arranged to have a gyratory movement, a driver therefor, a shaft mounted in bearings engaging with said suspended structure, a pin whose axial line is different from that of the shaft but operatively connected therewith, and a frictional means supporting the weight ' of the pin and parts carried thereby and coacting with said pin for restraining abnormal throw of the structure during gyra1 tion.</p> <p>“9. In combination, a suspended structure, a fixedly mounted driver surrounding the axis of movement, a shaft in said structure, a pin whose axial line is different from that of the shaft but operatively connected therewith, a support upon Avhich said pin rests, and a frictional device coacting with said pin for restraining abnormal tliroAV of the structure during gyration.</p> <p>“10. The combination, in a gyratory sifter, of a sifter body, means Avhereby the same is'suspended, bearings arranged centrally of said body, an eccentrically Aveighted shaft mounted in said bearings, an eccentric pin on said shaft, a step-bearing supporting said pin and through it said Aveighted shaft, a fixedly mounted driver arranged adjacent thereto, and surrounding the axis of movement, and a yielding connection betAveen said driver and said shaft.”</p> <p>The Examiner of Interferences, holding that Combs had failed to overcome the heavy burden of proof imposed upon him by reason of the patent to Warrington, aAvarded priority to the latter in all the counts of the issue. He also found that Combs had shown no conception, prior to his filing date, of the use of unbalancing or eccentric weights for producing a gyratory movement as specified in counts 1 and 10.</p> <p>On appeal to the Examiners in Chief this decision was. affinned as to counts 1 and 10, and reversed as to counts 2 to 9, inclusive. Combs did not appeal from this decision. Warring-ton appealed and the decision was affirmed hv the Commissioner.</p> <p>The next interference declared between the application of Combs, of September 24, 1907, and that of Brantingham, filed January 28, 1907, contained an issue of six counts, as follows:</p> <p>“1. In combination, a suspended structure, suspending means therefor, a support independent of said structure, said support consisting of individually rigid elements, a laterally movable, vertically positioned shaft engaging said structure and said support, a weight connected to said shaft whereby it is given a tendency when in motion to cause the structure to travel in a gyratory path, a fixed hearing surrounding the axis of movement of said shaft, a driver engaging in said bearing, and yielding connections independent of the suspending means between said driver and said shaft whereby the latter may be driven from the former notwithstanding the difference between the axis of rotation of the driver and the axis of gyration of the latter.</p> <p>“2. In combination, a suspended body, a bearing member arranged centrally thereof, a weight mounted to produce a gyratory movement, a laterally movable rotatable stem engaging said bearing member, a step bearing for the stem whereby the weight of the stem and gyratory weight are supported, a fixedly mounted driver surrounding the axis of rotation of the stem, and a bearing in which said driver is mounted.</p> <p>“8. In combination, a suspended body, a bearing member arranged centrally thereof, a weight to produce a gyratory movement, a laterally movable rotatable stem engaging said bearing member, a step bearing for the stem whereby tbe weight of the stem and gyrator weight are supported, a driver having a central opening through which said stem extends but free of contact therewith, and a bearing in which said driver is mounted.</p> <p>“4-. In combination, a suspended structure arranged to have a gyratory movement, a stationary bearing, a driver mounted thereby, said driver having a central opening, laterally movable rotatable means including a shaft engaging the suspended structure, said rotatable means extending through the opening in the driver, and a step bearing for said rotatable means.</p> <p>“5. In combination, a suspended structure arranged to have a gyratory movement, a stationary bearing, a driver mounted thereby, said driver having a central opening, laterally movable rotatable means including a shaft for actuating the suspended structure, said rotatable means extending through the opening in the driver, and a step bearing for said rotatable means.</p> <p>“6. The combination, in a gyratory sifter of a sifted body, means whereby the same is suspended, a bearing member arranged centrally of said body, laterally movable rotatable means coacting with said bearing including an eccentric weight and a movable shaft, a step bearing supporting said rotatable means, and its eccentric weight, a fixedly mounted driver arranged adjacent thereto and surrounding the axis of movement of the rotatable means, and yielding connection between said driver and said rotatable means.”</p> <p>The Examiner of Interferences held that Combs, having failed to show any conception of the use of unbalancing or eccentric weights as defined in counts 1, 2, 3, and 6, most be restricted to his filing date both for conception and reduction to practice of the invention as defined in said counts. He found that as to counts 4 and 5 Combs conceived the invention as early as October 31, 1906, while Brantingham was given the date of December 8, 1906. But holding that Combs was not exercising diligence when Brantingham entered the field, he was overcome by the filing of the application of the latter, on January 28, 1907. Combs was denied actual reduction to practice as claimed by him. Priority was, therefore, awarded Brantingham on all of the counts.</p> <p>On appeal by Combs, the Examiners in Chief affirmed the decision in favor of Brantingham. Combs appealed to the Commissioner from the decision as to counts 4 and 5, who disagreed with the Examiners in Chief as to Brantingham’s reduction to practice of the invention of these counts in February, 1906, because they were mistaken in the view that the machine of that date embodied the issue of these counts. He held also that Combs had reduced to practice in October or November of 1906. Consequently he reversed the decision as to those counts.</p> <p>The last interference embraced the applications of Combs and Harrington, respectively, and that of Brantingham also, and the issue is in the following counts:</p> <p>“1. In combination, a suspended structure, suspending means therefor, a shaft mounted in said structure, a fixedly mounted driver surrounding the axis of movement, a support for said shaft independent of said structure and said driver, and a yielding connection independent of the suspending means between the suspended structure and the driver whereby said structure is permitted a gyratory movement in operation.</p> <p>“2. In combination, a suspended structure carrying a vertically positioned shaft, weights connected with said shaft whereby it is given a tendency when in motion to travel in a gyratorypath, a driver mounted in a fixed bearing adjacent to the end of said shaft and surrounding the axis of movement, a support for the shaft independent of the driver and yielding connections independent of the suspending means between said driver and said shaft whereby the latter may be driven from the former notwithstanding the difference between the axis of rotation of the driver and the axis of gyration of the latter.</p> <p>“3. In combination, a suspended body, suspending devices therefor, means for giving said body a gyratory movement, a stationary driver, a shaft to said suspended body, a support for said shaft independent of said driver, and a yielding connection between said driver and the shaft of said suspended body whereby they are engaged for coincident rotation but permitting a relative movement equal to the distance between the axis of rotation and the axis of gyration.”</p> <p>The argument of the Examiner of Interferences by which his conclusions in each case were chiefly controlled is made in this case. Harrington’s preliminary statement in each case is vague, and under it he was limited to his filing date for reduction to practice. His assignee, who conducted the proceedings, moved to amend, attributing the want of specification of dates to the mental condition of Warrington, whose memory, it was alleged, had become impaired by failing health in 1907. Testimony on the point was taken by both sides and is in conflict. The leave to amend was denied. Combs was denied his claim of reduction to practice through his machines, exhibits X, T, and Z. He was therefore limited to his filing date and postponed to both Warrington and Brantingham. Warrington’s limitation postponed him to Brantingham, who was awarded December 8, 1906, as his date of conception. Brantingham was denied actual reduction to practice as claimed, and confined to his filing date which, however, antedated Warrington by thirteen or fourteen days. Brantingham was, therefore, awarded, priority on all counts. The objection to Combs’ actual reduction to practice was based largely on the leading questions addressed to his witnesses. That many of the questions were objectionable there is no doubt; but Combs is not alone subject to this criticism; many such questions were asked by his opponents throughout the taking of testimony. Nor, as pointed out by the Examiners in Chief and the Commissioner, was he compelled to rely upon such testimony alone. The' Examiners in Chief held, on appeal, that Combs’ proofs did not show the practice of eccentric weights called for in count 2, and proceeded to discuss counts 1 and 3. They held that Combs had conceived the invention as early as the fall of 1903, and that he had actually reduced it to practice in the spring of 1906 in Exhibit X machine; and in October, 1906, in his Exhibit Z machine. They found also that some machines made after those exhibits had passed into commercial use in 1906, and early in 1907. They reversed the Examiner of Interferences as to the counts 1 and 3 and awarded priority to Combs. As to count 2, they affirmed. Combs took no appeal. Brantingham appealed to the Commissioner from the award of counts 1 and 3 to Combs. The Commissioner found that Brantingham’s sketches of July, 1903, latter part of 1904, and February, 1906, respectively, indicate in a general way all the main elements of a gyratory sifter, but fail to show the subject-matter of the counts, because they lack “a support for said shaft independent of said driver,” called for therein; and some other necessary elements. ITe also found that Combs was in possession of the invention of the issue in 1903 and 1904; that he built three full-sized machines embodying the invention during March, June, and October, 1906. These are Exhibits X, Y, and Z. He found, also, that X and Z were fully tested, and found satisfactory, and have passed into commercial use. lie, therefore, affirmed the decision appealed from.</p> <p>From each decision appeals have been prosecuted by Warrington and Brantingham.</p>

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

<p>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>

Hearing oh an appeal from a decision of the Commissioner of Patents in an interference proceeding.

<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 Court in the opinion stated the facts as follows:</p> <p>Appellant’s application for patent relates to improvements in liquid-measuring devices. Claims 1 and 2 of his application were allowed by the Primary Examiner, but the following were rejected on reference to a patent to one Williams, which holding was affirmed by the appellate tribunals of the Patent Office:</p> <p>“3. A measuring device for aerated liquids under high pressure, comprising a pair of cups, a vent pipe connecting said cups and provided with check valves at each end, so arranged and disposed that the vent pipe will be open only when said cups are being tilled or discharged, and means for filling one cup and discharging the other cup simultaneously, each cup being adapted to hold a predetermined quantity of aerated liquid under high pressure.</p> <p>“4-. In a liquid-measuring device for high-pressure liquids, a pair of cups, a vent pipe connected with said cups and provided with a check valve at each end, a float for each valve, free and unobstructed supply and discharge pipes connected to said cups and a four-way valve connected to said pipes so that by turning said valves, said cups may be alternately charged and discharged with an aerated liquid under high pressure.</p> <p>uu. In a liquid-measuring device adapted for high-pressure liquids, a pair of cups, a vent pipe connecting the upper portions of said cups, a valve in each cup for closing the communication with the vent pipe, a float connected with each valve and disposed within its cup and constructed to be actuated to close the valve by high pressure only, and means for filling one cup and automatically discharging the other cup simultaneously, the discharge being occasioned by the passage of gas under high pressure from one cup to the other.</p> <p>“(5. In a liquid-measuring device gdapted for high-pressure liquids/a pair of cups, a vent'pipe connecting the upper portions of said cups, a valve in each cup for closing the communication with the vent pipe, a float connected with each valve and disposed within its cup and constructed to be actuated to close the valve by high pressure only, means for filling one cup and automatically discharging the other cup simultaneously, the discharge being occasioned by the passage of gas under high pressure from one cup to the other.</p> <p>“7. In a measuring device 'for aerated liquids under high pressure, a pair of cups, a vent pipe connected with each of said cups, there being restricted communication between said cups and pipe, a valve stem in each communication, a valve carried by each stem adaptéd to seat at the top of the cup to close said communication, a hemispherical float of large capacity connected with each stem constructed to be actuated by high pressure only, and means for filling one cup and discharging the other cup simultaneously.</p> <p>“8. In a measuring device for aerated liquids under high pressure, a pair of cups provided with supply and discharge pipes, a vent pipe connected with each of said cups, there being restricted communication between said cups and pipe, a valve stem in each communication, a valve carried by each stem adapted to seat at the top of the cup to close said communication, a hemispherical float of large capacity connected with each stem constructed to be actuated by high pressure only, means for filling one cup and discharging the other cup simultaneously, the supply and discharge pipe for said cups being valveless.”</p>

<p>Trademarks; Constitutional Law; Retroactive Statute.</p> <p>1. The registration of trademarks is regulated entirely by statute, and creates no property rights which forbid either regulation or abolition by Congress.</p> <p>2. Section 13 of the act of Congress of February 20, 1905 (33 Stat. at L. 724, chap. 592, U. S. Comp. Stat. Supp. 1911, p. 1459), permitting the registration of a trademark to be challenged by a proceeding for cancelation,, is remedial, and Congress therefore had power to make it' apply to previous registrations.</p> <p>3. Section 13 of the act of Congress of February 20, 1905 (33 Stat. at L. 724, chap. 592, U. S-. Comp. Stat. Supp. 1911, p. 1459), permitting the registration of a trademark to be challenged by a proceeding for cancelation, applies to registrations allowed under previous acts.</p>

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia in an action brought to recover back money claimed to have been paid defendant by mistake. The Court in the opinion stated the facts as follows: Appeal from a judgment in the supreme court of the District for Fred Beall, the defendant, appellee here, in an action for the recovery of $799.20, with interest, claimed to have been paid the defendant by mistake.