Volume 42 — Appeals, District of Columbia

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, holding a criminal court, convicting him of larceny. The Court in the opinion stated the facts as follows: An indictment in eleven counts charged Warren E. Talbert, appellant, with the crimes of obtaining certain articles of jewelry by false representations and pretenses, and with larceny of the same.

<p>Attorney and Client; Contracts; Assignments; Liens.</p> <p>1. An attorney’s lien can be established under one of three conditions: First, where a distinct proportion or percentage of the fund recovered has been by agreement assigned or set aside for the payment of the fee of the attorney; second, where a judgment has been recovered by the attorney, or moneys are payable thereon, or there is a fund in court against which a ‘■‘’charging lien” may arise, and, third, where the attorney is rightfully in possession of money or papers belonging to his client subject to a “retaining” or “possessory” lien.</p> <p>2. An agreement whereby an attorney’s compensation for the prosecution of a claim against a decedent’s estate is to be a sum at least equal to one third of the recovery does not amount to such an assignment or setting aside of a distinct percentage of the fund as to render it subject to the enforcement of an attorney’s lien.</p> <p>3. A charging lien for an attorney’s fee can only be asserted against a judgment secured in the particular suit in which the services were rendered.</p> <p>4. The compromise of a suit upon a claim against a decedent’s estate, followed neither by judgment nor by payment of money into court, affords no occasion for the enforcement of an attorney’s lien. (Citing Parish v. MoGoioan, 39 App. D. C. 184.)</p> <p>5. The compromise of a suit upon a claim against a decedent’s estate does not entitle attorneys who were engaged to collect it by one who held a power of attorney from the claimant for its collection, to a lien upon a judgment directing the decedent’s executor to make payment to the claimant, rendered in an action by the claimant with which the lienors were not connected, to set aside the wrongful assignment by the holder of the power of attorney, of the compromised claim; nor can they enforce the lien against a part of the sum paid in pursuance of the judgment, which the attorney recovering the same deposited in a bank to the credit of himself and another.</p>

<p>Equity; Receivebs; Joint-Stock Associations; Limitation of Actions; Bills and Notes; Computation of Time; Stake Decisis; Promissory Notes.</p> <p>1. Jurisdiction of the subject-matter of a suit against a receiver for an insolvent joint-stock association who was appointed by the same court as that in which the suit was brought is not affected by the fact that the plaintiff did not obtain leave to sue; especially where, upon demurrer to the bill, the court entered a nunc pro tuno order giving leave to sue as of the date of the original bill.</p> <p>2. Equity may take jurisdiction of a suit to enjoin the receiver of an insolvent joint-stock association from distributing the assets of the stockholders, or applying them to other purposes than payment of the plaintiff’s debt, which is evidenced by a note given by the association under a provision in its constitution authorizing its directors to obtain loans and making them a first lien on the assets before distribution to stockholders.</p> <p>3. The day upon which a note fell due is to be excluded in computing the time allowed by see. 1265, D. C. Code [31 Slat, at L. 1389, chap. 854], providing that no action shall be brought upon such an obligation after three years from the time when the right to maintain any such action shall have accrued.</p> <p>4. Where in 1879 the then appellate court of this District laid down a rule for the computation of time in determining whether an action on a promissory note was barred by the statute of limitations, and that rule remained unquestioned until attacked in this court in 1914, this court held that it would be unjust to overrule it, even if the court were disposed to question its soundness.</p> <p>5. A joint-stock association’s note cannot be avoided upon the theory that it was executed without authority by its directors for money borrowed by them to redeem stock, where such redemption was one of the association’s express objects, and the directors, before being given express authority to do so, had borrowed money for such purpose, giving notes therefor and reporting the same at the annual meetings of members, who made no objection, and had, by an amendment to the association’s constitution, been given express power to make loans for that purpose before the execution of the note in suit, which was given in part to take up notes executed before the amendment.</p>

Hearing on an appeal by the plaintiff from a decree of the Supreme Court of the District of Columbia dismissing his bill for an injunction to restrain the defendants from taking any action in violation of his right to be nominated by the President as deputy paymaster general and from recommending that the President nominate any other than the plaintiff to such office.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover a balance alleged to be due for apples purchased from plaintiff. The Court in the opinion stated the facts as follows: This is a suit on a parol agreement for a balance alleged to be due from Golden & Company, appellant, defendant below, for apples purchased from plaintiff, Elijah B. White.

<p>Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia, holding an equity court, awarding a personal judgment against him in favor of a receiver.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>The Charles J. Cassidy Company filed a bill on December 5, 1912, against the Gettysburg Battle Picture Association, a corporation, alleging an indebtedness of the association to plaintiff, insolvency, etc., and asking that a receiver be appointed. The defendant, by resolution of its directors, acquiesced in the prayer for a receiver, and Homer T. Booth was duly appointed as receiver and directed to take immediate possession of all property of the defendant in the District of Columbia. On December 11, 1912, the receiver filed a petition in said court, alleging misappropriation of the funds of the defendant by certain officers of the corporation, the several amounts of the same, and asked for a rule on said parties, Chancey 0. Howard, Gurnon R. Scott, and Edward D. Turnure, to show cause why they should not deliver the same to the receiver.</p> <p>The parties were served with notice, and answered. The answers of Scott and Turnure need not be recited, as they have not appealed. Howard answered December 11, 1912, prefacing his answer by saying that he appeared specially for the purpose of answering the rule to show cause, and for that purpose only; not admitting or submitting to the jurisdiction of the court for any other purpose, and not admitting the validity of the appointment of the receiver. The answer then proceeds at length to deny the allegations of the petition, explaining the respondent’s connection with the defendant and the Auto Delivery Company. The answer concluded as follows: “Wherefore, the premises considered, your respondent prays that this cause may be referred to the auditor of this court in order that a thorough audit and accounting of the books of the said defendant company may be had and affairs of said company may be determined.” Reference to the auditor to ascertain and report “as to the disposition of the assets of the defendant corporation, and by whom and to whom the same were disposed of,” was made on the same day.</p> <p>January 18, 1913, the Cassidy Company filed a supplemental bill making Howard and the Auto Delivery Company parties defendant.</p> <p>It alleged misappropriation of the funds of defendant by Howard as treasurer of the same, delivery of part of the same to the Auto Delivery Company, over which he exercised exclu' sive control, and praying that he be made to account for and pay over the same to the receiver; for decree therefor, and for general relief.</p> <p>Howard answered this petition, February 11, 1913. The answer denied misappropriation of the funds, etc., and concluded : “Saving and excepting all benefits which he has raised as to the appointment of a receiver in this cause, and still maintaining that the said receiver has been improperly appointed, says that should the court determine that the receiver is properly appointed, upon advice of counsel he now stands ready to submit to a judgment against him for all moneys which were loaned and advanced to him for his own personal use in his personal capacity.” The report of the auditor was filed March 10, 1913, and shows that Howard was represented by counsel at the hearing. The report recites the history of the organization of the Gettysburg Battle Picture Association, its stock receipts, expenditures, etc. The schedules show the stock paid in, the expenses which were allowed, and the disposition of the surplus to Howard and other officers. No exceptions were filed to the report and it was confirmed by decree March 28, 1913. May 6, 1913, an order was entered requiring Howard and others to show cause why a decree should not be entered against them, respectively, for the Several amounts chargeable to them by the terms of said report. Howard answered the rule, reciting a special appearance for that purpose only; and “that he is advised and believes that the court has no power to grant any of the prayers of the plaintiff on which the said rule was issued, because your respondent is not a party to the original suit filed herein, and is not properly before the court. Your respondent has been made a party to a supplemental bill filed herein. Said supplemental bill prays for all of the relief that is attempted to be secured under the said rule and has never been disposed of although an answer has been filed thereto. And therefore your respondent is advised and believes that this rule is inoperative.</p> <p>“Wherefore your respondent prays that the said rule be hence dismissed.”</p> <p>May 20, 1913, a decree was entered against Howard for the sum of $5,688.77 as found to be due by him by the said report, to have effect as a judgment at law, from which he has appealed,</p>

Hearing on an appeal by tbe defendant from a decree of tbe Supreme Court of the District of Columbia declaring certain suretyship contracts null and void as to plaintiff and directing tbe return to her of certain shares of stock.

Hearing on an appeal by tbe defendants from a judgment of tbe Supreme Court of tbe District of Columbia convicting them of conspiracy. Tbe Court in tbe opinion stated tbe facts as follows: This is an appeal from a judgment after verdict in tbe supreme court of tbe District under an indictment charging the three defendants, James J. Fletcher, George Noble, and May King, appellants here, with tbe crime of conspiracy.

Hearing upon, motion by the appellee to dismiss or affirm. The Court in the opinion stated the facts as follows: The case has been submitted on motion to dismiss or affirm. The action is upon a promissory note for $350 executed December 30, 1910, and due eighteen months after date, with 6 per cent interest per annum. The declaration filed in the municipal court was supported by affidavit, to which no objection has been urged, is amply sufficient.

<p>Evidence; Custom; Negligence; Action; Parties; Trial; Exclusion of Witnesses from: Court Room.</p> <p>1. Evidence of the custom as to the length of time boilers were used without cleaning should be admitted in evidence in an action to recover for injuries to a servant by the explosion of one of them, upon the ground that it was defective, when offered by the defendant to meet the plaintiff’s testimony that there was no regular time for cleaning them, that they ran anywhere from two to three months without cleaning’, and that the plaintiff, although he had never known of an explosion in the defendant’s plant, had seen the boiler tubes so bad that they could not hold steam; and such evidence cannot be excluded upon the theory that since but one boiler was involved, and the parties stipulated as to the length of time it had been in use since cleaning, evidence as to the general custom was incompetent. (Mr. Justice Roeb dissenting.)</p> <p>2. In personal injury eases, this court has announced a strict rule in requiring the question of negligence to be submitted to the jury. (Citing Barstow v. Capital Traction Co, 29 App. D. C. 362; Capitat Traction Co. v. Divver, 33 App. D. C. 332; Capital Traction Co. v. Apple, 34 App. D. C. 559; and Capital Traction Co. v. Crump, 35 App. D. C. 169.)</p> <p>3. A representative of the District of Columbia who sits at the counsel table during the trial of an action to which the District is a party is a litigant in such a sense as to make him immune from exclusion from the court room, and therefore it is error to reject his testimony upon the ground that he remained in violation of an order excluding witnesses. (Mr. Justice Robb dissenting.)</p> <p>4. A witness who disobeys an order excluding witnesses from the court room, although subject to contempt proceedings, is not thereby disqualified from testifying except in extreme cases, and where it appears that no injustice will result from rejecting the testimony.</p> <p>5. Before rejecting the testimony of a witness who remained in the court room in violation of an order excluding witnesses, the court should inquire into the circumstances of such violation, and unless it appears that the witness acted by the advice or with the collusion of the party in whose favor he was to testify, his testimony should be received.</p>

<p>Quo Warranto; “Person Interested;” Motive; Statutes; Officers; Appointment; Executive Discretion; Removal.</p> <p>1. A citizen and taxpayer, as well as a claimant of the office,' is a “person interested” whom see. 1540, D. C. Code [31 Stat. at L. 1420, chap. 854], authorizes to apply, upon the refusal of the attorney general and the district attorney to act] for leave to have a writ of quo warranto issued against the usurper of an office, though see. 1539 authorizes the attorney general or district attorney to institute such a proceeding: upon the relation of “a third person,” since Congress must be deemed to have intended to use the words as generally construed in such acts; “third person” as meaning person interested, and “person interested” as not confined to persons interested in the office, and especially since an absence of intention to limit relators to claimants is shown by sec. 1541, providing that when the proceeding is against the usurper on the relation of a person claiming the same office, the relator must set forth the facts upon whi h he bases his claim. (Chief Justice Shepabd dissenting.)</p> <p>2. Interested persons on their own application, and not the attorney general and district attorney exclusively, are authorized to resort to quo warranto against the usurper of a public office as distinguished from .an office in a domestic corporation, by the provisions in the D. C. Code authorizing (see. 1538) the writ to be issued against the usurper of either of such offices, empowering (sec. 1539) the attorney general or district attorney to institute the proceedings on his own motion or upon the relation of a third person, and providing (see. 1540) that if the attorney general and district attorney refuse to act, a person interested may apply by verified petition, for leave to have the writ issued; and that if, in the opinion of the court, the reasons set forth in the petition are sufficient in law, the writ shall be allowed to be issued by any attorney in prescribed form.</p> <p>3. In determining the sufficiency of the reasons set forth in the petition under see. 1540, D. C. Code, authorizing the court to allow a quo warranto to be issued against the usurper of an office upon the application of a person interested, if in the opinion of the court the reasons set forth in the petition are sufficient in law, the court may inquire into the intent and motive of the party seeking the writ, as well as the sufficiency of the evidence offered by affidavit or otherwise, in support of the petition to establish probable cause for the allowance of the writ.</p> <p>4. An individual citizen may sue to enforce the performance of a public duty or to restrain the violation of the public right. (Citing Downing v. Ross, 1 App. D. C. 251.)</p> <p>5. Where a quo warranto is sought upon the relation of a claimant of an office against an alleged usurper, the proceeding is for the enforcement of a private right; but where it is sought for the enforcement of a public right, the people become the real party, and the relator is only required to show that he is interested as a citizen in having the law executed and enforced.</p> <p>6. The facts that all offices in the District of Columbia are appointive in the same- maimer as those of the attorney general and district attorney, and that no one can have such an interest in an appointive office as would entitle him to enforce the same, requires sec. 1540, D. C. Code, permitting a person interested to apply for a quo warranto against the usurper of a public office if the attorney general and district attorney refuse to institute the proceedings, to be construed to authorize an application by a citizen and taxpayer though he is not a claimant of the office.</p> <p>7. Where an executive officer of the government is vested with discretionary power in the execution of a law, the exercise of that discretion cannot be controlled by judicial process; and it is only where such an officer is charged by law with the perfox-mance of a ministerial act devoid of discretion, that the courts will intervene to command its performance or restrain its violation.</p> <p>8. The appointing power of the President rests in his discretion-, and his exercise thereof is not reviewable so long as it confox'ms to the limitations imposed by law.</p> <p>9. A legal and judicial, rather than a political and executive, question is involved in an inquiry as to whether a pei-son appointed commissioner of the District of Columbia was, for three years before his appointment, an actual resident of the district as required by the act of Congress of June 11, 1878 (20 Stat. at L. 103, chap. 180), which, in providing for the appointment of commissioners, does not impose xxpon the President and Senate the duty of determining from evidence taken, the qualifications of prospective appointees; and therefore no judicial invasion of the President’s general discretion in making appointments to office occurs when a court authorizes the issuance of a writ of quo warranto to challenge upon the ground of lack of residential qualifications, an incumbent’s right to the office.</p> <p>10. No improper limitation upon the President’s power to remove an officer whom he has appointed is imposed by permitting a citizen and taxpayer to institute a proceeding in quo warranto by which the right of an incumbent to hold the office of commissioner of the District of Columbia is sought to be challenged upon the ground that at the time of his appointment he had not' been a resident of the District for the time acquired by the act of Congress of June 11, 1878 (20 Stat. at L. 103, chap. 180), relating to the appointment of commissioners.</p>

Hearing on an appeal from a decision of the Commissioner of Patents in an interference case. The Court in the opinion stated the facts as follows: Appeal from the Commissioner of Patents in an interference proceeding involving a machine used in the manufacture of shoes. It operates on the hollow portion of the shoe for the purpose of taking up the fullness that exists between the heel seat and the ends of the welt. The following are the counts of the issue: “1.

Hearing on an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia upon a directed verdict in favor of defendant in an action brought to recover damages for the alleged negligent killing of plaintiff’s intestate. Affirmed.

<p>Deeds; Cancelation; Evidence; Sufficiency; Appeal and Error.</p> <p>1. A deed of real estate executed by a man ninety-seven years of age, while confined in a hospital, to his niece for life, with remainder to her daughter, in consideration of $10 and natural love and affection, will not be set aside upon the grantor’s testimony that he was told, and thought, that it was a will, where, inconsistently therewith he testifies that he never authorized anyone to draw either a deed or will, and it appears that a few days after the execution of the deed he executed a will confirming the deed, and liis physician testifies that he sent a lawyer to the grantor at the latter’s request, and the lawyer testifies that he, without avail, advised the grantor to make a will rather than a deed, and both the lawyer and the notary who took the acknowledgment testify that the deed was fully read and explained to the grantor before he executed it, and that he fully understood what he was doing, and stated that he made the conveyance in appreciation of his niece’s kindness to him.</p> <p>2. An appeal by the grantees in a deed from a decree setting aside the deed will not be dismissed merely because the appellants, instead of staying the decree by giving a supersedeas bond, reconveyed the land to the appellee, giving notice that the conveyance was made in compliance with the decree, and without prejudice to their rights on appeal, since the conveyance in such’circumstances was involuntary, and will become a nullity upon the reversal of the decree.</p>

<p>Hearing on an appeal by tbe plaintiff from a decree of tbe Supreme Court of the District of Columbia dismissing his bill filed to establish an equitable lien upon certain real estate of the bankrupt which had passed into the custody and control of his trustee in bankruptcy.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from a decree dismissing the bill of William Berl filed June 16, 1905, against H. Rozier Dulany, trustee of the estate of Thomas E. Waggaman, bankrupt.</p> <p>The bill alleges that plaintiff is the owner of two notes executed by Thomas E. Waggaman. The first is for $19,000, executed January 15, 1903, payable to plaintifE one year after date with interest at 6 per cent per annum, payable quarterly. The second is for $1,000, executed April 15, 1903, payable in one year with interest as aforesaid.</p> <p>That at the time of making the loans aforesaid, Thomas E. Waggaman was seised' and possessed of a tract of land in the District of Columbia known as the subdivided portion of Cleveland park, according to a plat recorded in the office of the District Surveyor.</p> <p>“That the aforesaid loans were made by the complainant to the said Waggaman, upon his express undertaking and agreement that they would be further secured by a deposit with him, said complainant, of twenty certain promissory notes of one Maggie E. Riley for $1,000 each, which should, in turn, be secured by a deed of trust upon the said tract of land, and. complainant, upon the faith and credit of said promise, and upon the full belief that said deed of trust had in fact been executed and placed of record, being at the time and over since a nonresident of the District of Columbia, and relying upon the good faith and promises of the said Waggaman, advanced to him the full sum of $20,000 as aforesaid. That in accordance with the terms of said agreement, the said twenty notes of said Maggie E. Riley were to be deposited with him as collateral security, nineteen for the said note of which Exhibit No. 1 is a copy, and one for the note of which Exhibit No. 2 is a copy, and the said twenty notes were in fact delivered to complainant by the said Waggaman as recited in said Exhibit No. 1 and Exhibit No. 2. Said twenty are for the sum of $1,000 each; bear date the 24th day of December, a. d. 1902, and are payable three years after date to the order of one Samuel E. Allen, Jr., with interest payable quarterly at the rate of 5 per cent per annum; are signed by said Maggie E. Riley and indorsed to complainant by said Samuel E. Allen, Jr. A true copy of one of said notes is hereto attached marked “Exhibit No. 3,” and is prayed to be read and considered as a part hereof. Each of the other nineteen of said notes is identical in form and terms with the one of which said Exhibit No. 3 is a copy.”</p> <p>That plaintiff is informed and believes that said deed of trust was actually prepared, but was not placed of record, and has been lost.</p> <p>That the facts and circumstances, the agreements and recitals in the said notes and the letters of Waggaman, constitute a lien upon all the interest of said Waggaman.</p> <p>The prayers are that a lien be declared and foreclosed upon all the interest of said WTaggaman in the land aforesaid, and that the same be sold for the satisfaction of plaintiff’s demand. The answer put the plaintiff upon proof of the allegations of his bill.</p> <p>The evidence shows that for many years Thomas E. Waggaman had been dealing in real estate. Tie was considered to be a man of large means, and for years enjoyed the confidence of the community. He was considered perfectly solvent until just prior to September 26, 1904, on wbicb date he was adjudged to be a bankrupt; and the defendant Rozier Dulany was appointed trustee of the bankrupt’s estate, into the possession of which he immediately entered.</p> <p>About the year 1890, to accommodate many persons desiring to invest money for savings account, Waggaman began to receive money from such persons in sums generally small. He set aside certain notes secured on real estate in what he called list No. 1. Investors were given notes signed by one of Waggaman’s clerks for sums deposited, said notes reciting that they were secured on list No. 1. Larger sums began to be received. When notes issued on list No. 1 equaled the amount of those in the list, other lists were made and the same plan pursued. These lists increased to thirty-seven in number.</p> <p>In January, 1895, the lists were consolidated into one, known thereafter as list No. 1. His supply of notes secured by mortgage was exhausted. He was engaged in developing suburban properties, among them, Cleveland park. As stated by his confidential clerk, who had charge of the listed notes and the issuing of the investment notes thereon: “He conceived the idea that his suburban properties were worth what he had paid for them plus whatever sums he had spent, at different times, in their development, and that a note of one of his clerks for the amount of such expenditures, having on it a marginal notation that it was secured on a particular piece of property, without a deed of trust, or its equivalent, was good security for list No. 1. Mr. Waggaman’s expenditures on account of these outside properties were very considerable, and he had to have more money than he had then invested in the several properties. His idea was that the properties, by reason of his spending money on them and the general improvement in country property, had increased in value. Then he had one or the other of his clerks draw a note to the order of H. P. Waggaman, procure his indorsement thereon, write on the margin that it was' secured on H. P. Waggaman’s personal note, and put that note in list No. 1 as the basis of security for notes issued against it. * * * Sometimes he would have a note of one of his clerks drawn for a large amount, largely in excess of what he had paid on account of a purchase, writing on the margin that it was secured on one or another of his outside properties, and put that in list No. 1, as a basis of security.” Every Monday morning the clerk made a statement on a pad showing Mr. Waggaman how the list stood, “that is, whether or not the notes in the list were equal to or exceeded notes of the clerks issued against it. When clerks’ notes outstanding exceeded notes in the list, Mr. Waggaman would direct witness to have one of his clerks sign another note or notes, in sums varying from ten to fifty thousand dollars, write on the margin on what particular piece of property it was secured, and put that in list No. 1 as collateral. Notes issued to lenders were always signed by one or the other of his clerks, and each note stated, after the lists were consolidated in 1895, that it was secured on list No. 1.”</p> <p>Ii. P. Waggaman was a man of no financial responsibility at all, and was indebted in a large amount to Thos. E. Waggaman.</p> <p>The clerks were without means; they received no part of the money for which the investment notes were executed to lenders. The money received went to Waggaman’s account in the bank, and he paid the quarterly interest on the notes with his personal check to the depositors. “When list No. 1 came into existence there were actually some deed of trust notes in it, but in course of time these were almost entirely eliminated, and it came to consist almost entirely of notes made by Mr. Waggaman’s clerks. * * * Such money as came to Waggaman’s office for investment during the last eight or ten years of his business life, and rvas not invested on list No. 1, was usually put on some of his property by deed of trust, but witness does not know what proportion of the money went that way.” Six notes placed in list No. 1 were shown. These were signed by clerks in the office, represented moneys spent in improvement or purchase of Cleveland park, and all noted on the margin as secured on Green Purchase, or Cleveland park.</p> <p>Cleveland park was purchased of Green, and the subdivided part thereof was covered by a mortgage to secure the purchase money. The trustee’s books show sales of this subdivision amounting to $128,325.79,—subtracting therefrom amounts paid in discharging the purchase money mortgage, taxes, etc., there remained $42,859.53.</p> <p>Plaintiff, Berl, was a brother-in-law of Thomas E. Waggaman, and resided in Delaware, where he was engaged in business as a manufacturer. He had lent money to Waggaman and in 1902 held his unsecured note for $13,000. When the loan was first made does not appear.' The correspondence relied on to establish the. equitable lien begins with an undated letter evidently written before December 23, 1902. This says: “I</p> <p>will be very glad to let you have the mortgage you speak of on Cleveland park, but do not know when I will be able to fix it, as the syndicate have to pass on it. Will try to hurry them up.”</p> <p>No trust deed was executed. The next letter reads as follows:</p> <p>Washington, D. C., Dec. 23, 1902.</p> <p>My Dear Berl,—</p> <p>I am preparing the papers for the trust I told you about on Cleveland park. Eor convenience, the notes are made for $1,000 cash, to the amount of $259,000. Before this trust of $259,000 is one for the purchose of the property, which will.be liquidated when 500,000 sq. feet of the tract have been sold; so I really regard the trust of $259,000 as a first trust. The amount that is put on the lots is 19f cents per sq. ft.; as the ground is selling for 35 and 40 cents, I consider it ample security. '</p> <p>The notes are made for three years; but as the property is sold I must take them up in order to release. I will make the following suggestion to you: That I will give you my personal note secured upon these, as collateral, for $1,000 each, to the amount that you desire. It is to bear 6 per cent interest, and I am to have the privilege, as I said before, of taking up the col-laterals as the ground is sold, and to replace them by others of the same amount, with the same security. Now, if this does not meet with your idea, let me know what you want.</p> <p>Very sincerely yours, Thomas E. Waggaman.</p> <p>Another letter of W. G. Waggaman to plaintiff, dated December 26, 1902, relates chiefly to stock in a gold mining company, but adds: “The trust on Cleveland park will be completed in a few days, so let Thomas E. know how much you want. As you may want to use your investment as collateral, I would suggest that you ask Thomas E. to give you only such notes as are secured on the subdivided portion of the park, but do not mention me as the suggestor.”</p> <p>On January 15, 1903, plaintiff loaned more money to Waggaman, amounting, with the former indebtedness, to $19,000. January 15, 1903, the note for $19,000 was mailed to plaintiff with a letter in which it was said: “The nineteen collateral notes are secured by the subdivided portion of Cleveland park.” The note inclosed reads as follows :</p> <p>Washington, D. C., January 15th, 1903.</p> <p>$19,000.xx.</p> <p>One year after date I promise to pay to the order of William Berl nineteen thousand xx/100 dollars for value received, with interest, payable quarterly at the rate of 6 per centum per annum until paid, principal and interest payable at the office of Thos. E. Waggaman, Washington, D. C.</p> <p>As collateral security, I have deposited with said William Berl nineteen notes of $1,000 each, and designated (A) ; dated December 24th, 1902, signed by Maggie F. Riley, and secured by subdivided portion of Cleveland park; and in case this note or any instalment of interest thereon shall not be paid at maturity, I hereby give the said William Berl or any person to whom this note and collateral may be transferred, full authority to sell the above-described collateral, or any part thereof, immediately on the maturity of said note, or at any time thereafter, at public or private sale, in his discretion, without advertising the same or giving me any notice, and after the payment of any cost or expense of such sale, to apply so much of the proceeds of said collateral to the payment of this note and interest as may be necessary, and the remainder of said proceeds of sale, if any, to account for to me. In case the proceeds of said sale shall not cover the principal and interest of this note, and the expenses of sale, I hold myself bound to pay any such deficiency to said William Berl, or -to any other person or persons to whom this note and collateral may be transferred.</p> <p>Thos. E. Waggaman.</p> <p>An account accompanied the note showing amount due Berl of $19,000, balanced by the note.</p> <p>The following is attached to the account:</p> <p>“Memo.—Nineteen notes secured by subdivided portion of Cleveland park are attached to the note for $19,000.”</p> <p>April 20, 1903, another note for $1,000 was sent to plaintiff, dated April 15, 1903, together with another of the $1,000 collateral notes, for which plaintiff remitted $1,000. These collateral notes were dated December 24, 1902, payable three years after date, for $1,00,0 each, to order of Samuel E. Allen, Jr., and signed by Maggie E. Biley; both clerks of Waggaman. They were indorsed by Allen to the order of William Berl. A letter of January 10, 1904, written to plaintiff by W. G. Waggaman, wishing to extend the $19,000 note, to April 15,—the maturity of the second note,—expresses the hope that the spring demand for land in Cleveland park will enable him, “if not.to pay the notes, to give you a trust for a given number of feet at 19f.”</p> <p>Another letter of January 18, 1904, states: “There.are 1,-200,000 sq. feet in the tract on which your notes are secured as a second trust; the first trust being about $61,000. He sees no reason why the first trust should not be paid with spring sales. “Then, should you want it, I can make up a trust for you which would be an individual first trust.” Another letter of July 21, 1904, from W. G. Waggaman, says: “Thos. E. told me a few days ago that he could not at present give you a first trust on Cleveland park. * * * Thos. E. is also trying to take up the first trust on Cleveland park, and will get a definite reply about it on August 1st. If the trust company which agreed to take up said trust does not back out, Thos. E. will leave out enough ground in the park for your trust.” Another from the same to the same of August 13, 1904, says: “Thos. E. told me last night that he had requested Sherman to leave out of the new tract on Cleveland park 70,000 sq. feet of ground, for which he would give you a deed. Such an area in nearly any part of the park will be ample security for the amount due. If I am asked to choose the ground you will come out all right”</p> <p>It does not appear that beyond the twenty $1,000 notes of Miss Kiley, received by plaintiff as collateral, any more were executed by her. It is certain that the proposed mortgage for $259,000, referred to in the aforesaid letter of December 23, 1902, was never executed. The trustee testified that the assets of the bankrupt’s estate would pay about 25 per cent of his general indebtedness. Part of the indebtedness consists of $195,327.92, received by Waggaman from investors between January 1, 1903, and July 22, 1904.</p>

Hearing on an appeal by the plaintiff from a decree of the Supreme Court of the District of Columbia dismissing her supplemental bill filed to set aside a certain bill of sale, and subject the proceeds thereof to the payment of alimony which had been awarded her in the original proceeding for a divorce. The Court in the opinion stated the facts as follows: The original bill in this case was filed by Blanche R. Sheckells, appellant, January 2,1912.

Hearing on an appeal (specially allowed) by tbe plaintiff from an order of tbe Supreme Court of tbe District of Columbia sustaining a'motion to quasb tbe service of process in an action to recover damages for a trespass, and a motion to dismiss sucb appeal.

<p>.Physicians and Surgeons; Malpractice; Evidence; Burden of Proof; Death Certificate; Hypothetical Questions; Custom and Usage; Death; Negligence; -Proximate Cause; Trial; Directed Verdict.</p> <p>1. A surgeon is bound to exercise such skill and care as are usually exercised by surgeons in good standing. (Citing Sweeney v. Erring, 35 App. D. C. 57, 43 L.K.A.fN.S.) 734.)</p> <p>2. The plaintiff in an action against a surgeon for malpractice alleged to have resulted in death must prove that the death was caused by the defendant’s failure to exercise due care. (Citing 75id.)</p> <p>3. A death certificate made by the coroner, who signed as attending physician, upon a blank required by the health department to be filled out and certified by the attending physician where an inquest is unnecessary, apparently for the mere purpose of giving statistical information, is not admissible in evidence to, show the cause of death, in an action against a surgeon for malpractice, where the coroner was not in attendance upon the patient, and did not perform the autopsy, and his information regarding the cause of death was derived from others, and where he was available, as a witness. (Citing National Union v. Thomas, 10 App. D. C. 277; Prigg v. Lanshurgh. 5 App. D. C. 30; and Snell v. United States, 16 App. D. C. 501.)</p> <p>4. A hypothetical question in an action against a surgeon for malpractice alleged to have resulted in death, propounded to surgeons testifying for the defendant, and involving the sufficiency of the defendant’s preliminary examination to determine whether the patient could be safely anesthetized, is not objectionable upon the ground that it does not refer to choking sensations from which the patient at times previously suffered while sleeping, and of which the defendant was seasonably informed, where such sensations were included in the cross-examination of at least two of the experts, and the uncontradieted evidence shows that a careful preliminary examination was made by the defendant.</p> <p>5. A hypothetical question relating to the presence of physicians during the administration of ether by a medical student, propounded to surgeons testifying as experts for a surgeon in an action against him for malpractice, held sufficiently to embody the evidence.</p> <p>6. Eeferenee to the condition of the valves of the heart need not be made in a hypothetical question in an action against a surgeon for malpractice, propounded to surgeons testifying for the defendant as experts, and involving the question whether a careful examination of the patient before anesthetization would have disclosed the heart weakness which an autopsy revealed, where the operating surgeon testified that the valves were not affected, and the plaintiff’s witnesses, although testifying that the valves were affected, did not describe the nature of the affection, and where the evidence showed that there were several ways in which they might have been affected, but that, to be discoverable by outward examination, the affection must be of a nature indicated by murmuring sounds, from which the patient’s heart was free.</p> <p>7. Whether evidence that it is the custom in a clinic in a distant state, to intrust to an advanced medical student of experience the administration of ether to a surgical patient, is admissible in an action for malpractice in pursuing the same course in the District of Columbia, where it is not shown that the same custom exists in the District,— quaere.</p> <p>8. Evidence that it is xhe custom in a clinic in a distant state, to intrust to an advanced medical student of experience the administration of ether to a surgical patient, is admissible in an action for malpractice in pursuing such a course in the District of Columbia, where there is evidence that the same custom prevails in the District.</p> <p>9. The refusal of a trial court to permit an expert witness in an action against a surgeon for- malpractice, to answer the question whether a surgeon would be in the exercise of due care if he intrusted to an advanced medical student of experience the administration of ether to a surgical patient, without making some provision for the presence of an experienced physician, is not error where the evidence in appellant’s behalf shows that at least two experienced hospital physicians were present generally during the administration; and it is immaterial whether they were provided by the defendant or not.</p> <p>10. The refusal of the trial court to permit an expert witness in an action against a surgeon for malpractice in the District of Columbia, to answer the question whether an advanced medical student of experience, if intrusted with the administration of ether in the absence of a duly licensed physician of the District, would be as likely to obtain successful results as a trained anesthetist, is not error where two competent hospital physicians, licensees of another state, saw the patient during the administration, and there is nothing to show that a District license would have added to their competency, and where another expert testified that the student would be competent if a graduated physician were in the room, and especially where the expert to whom the question was propounded had already given testimony which substantially answered the question.</p> <p>11. Testimony of an expert witness in the trial of an action against a surgeon for malpractice, that the administration of an anesthetic is not technically difficult, and that students are permitted to do it, and that it is only necessary to see that the student has witnessed a certain amount of anesthetic administered, and has obtained a technical training, and that, if he has also given an anesthetic, it is not necessary that the surgeon or a graduate physician stand by and watch over the patient, especially if the surgeon or a physician is in the room and able to give any assistance required,—is a substantial answer to the question subsequently propounded to him, whether an advanced medical student of experience, if intrusted with the administration of ether, would be as likely to obtain successful results as a trained anesthetist, and justifies the trial court in refusing to permit the witness to answer the same when propounded.</p> <p>Í2. The exclusion by the trial court in an action against a surgeon for malpractice, of the hypothetical question whether it would be reasonable care to permit a medical student to administer an anesthetic without the presence of a physician during the excitement period, is proper where the evidence shows that the house physician was present during most of the excitement period, and he has testified to examining the patient and finding nothing unusual, and the patient passed the excitement period safely, the administration continuing thereafter for about twenty-five minutes.</p> <p>13. An action for death alleged to have been- caused by negligence in the administration of an anesthetic may be maintained against a surgeon only where an action could have been maintained for negligent administration if death had not ensued.</p> <p>14. Apart from the doctrine of res ipsa loquitur, negligence can be imputed to no one from the mere happening of an accident.</p> <p>15-. Negligence cannot be imputed to a surgeon with reference to the administration of an anesthetic to a patient who died under its influence, unless it is established that the death was caused by the anesthetic.</p> <p>16. A verdict is properly directed for the defendant in an action against him for death alleged to have resulted from negligence in the administration of ether to a patient having a weak heart, where the testimony of all the expert witnesses does not indicate certainly that the death did result from ether, though many,—defendant among them, —testify that the ether may or may not have been the cause, and that they would not have administered ether to a patient if they knew that his heart was in the condition of the deceased’s, as disclosed by an autopsy.</p> <p>17. There is no evidence of negligence relative to the examination of a patient to determine whether anesthetization would be safe, which will preclude the direction of a verdict for the defendant in an action against him for death alleged to have been caused by the negligent administration of ether to a patient whose heart an autopsy showed to be affected with fatty degeneration and impaired valves, where the surgeon testifies that he twice examined the patient for the purpose, stating that he used all the means employed in such examinations, and mentioning some of them, and the anesthetist testifies that he too made an examination, and their testimony is not contradicted, and none of the experts testify that the examinations were lacking in any particular, and practically all of them agree that fatty degeneration cannot be detected in advance of an autopsy, and the single witness who testified that the valves were affected did not state the extent of the affection, or declare whether it was sufficient to be discoverable by an outward examination, and the experts on both sides testify that there are valvular affections which cannot be detected by such an examination.</p> <p>18. Directing an advanced medical student of experience to administer the ether will not be regarded as negligence which will disentitle a surgeon as defendant to a directed verdict in an action for death alleged to liave been caused by negligence relative to the administration of ether to a patient having an impaired heart, where there is no evidence tending to show that the same was negligence.</p> <p>19. Legal responsibility of one person to another cannot be predicated upon evidence from which the jury can draw an inference only by speculation, it being necessary that the evidence be positive to such a degree that the inference naturally arises.</p> <p>20. There is no evidence of want of the ordinary care required of an anesthetist, which will preclude the direction of a verdict for the defendant in an action against a surgeon for death alleged to have been caused by negligence in the administration of ether by the defendant’s agent, where the evidence introduced to show negligence is merely speculative, and especially where the experts testify that the amount of ether administered was very small, considering that the administration lasted twenty-five or thirty minutes, and the person who administered it, having been called as a witness by the plaintiff, testifies as to pulse tests and other observations taken by him, and states that the patient took the ether normally and comfortably, and all of the experts testify that the course adopted in administering the ether was an exercise of due care, and the defendant testifies that when he first saw the anesthetized patient he looked like any other patient under an anesthetic, until he was placed upon the operating table, when he began to show a cyanotic condition.</p>

<p>Hearing on an appeal by the defendant from a judgment of .the Supreme Court of the District of Columbia in plaintiff’s favor, for want of a sufficient affidavit of defense, in an action to recover the price of a computing scale alleged to have been sold by plaintiff to defendant.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>Appeal from a judgment for the plaintiff, .Moneyweight Seale Company, appellee here, in the supreme court of the District under the 73d rule.</p> <p>The declaration is in two counts. The first declares on a written order in which the defendant requested the plaintiff to send him, at his place of business in the District of Columbia, one computing scale, for which the defendant was to pay the sum of $120, $7.50 in cash with the order, and the balance of $112.50 in monthly instalments of $7.50 each. This count further sets forth that the provision as to instalment payments was evidenced by a note signed by the defendant and attached to said written order. Failure to pay any instalment when due entitled the plaintiff to recover all. The second count embraces the common counts in assumpsit. The affidavit of merit was made by one William F. Bowen, and recites that, as agent of the plaintiff, he received said order from the defendant, and that, as said agent, he waived the cash payment that should have accompanied the order, and accepted in lieu thereof defendant’s separate written promise to pay him, said agent, the amount of said payment.</p> <p>In his affidavit of defense defendant avers that “he never sent an order to William F. Bowen, the person making the affidavit attached to plaintiff’s declaration, as by said Bowen alleged;” that one Morris Kisseleff called at his place of business and urged him to buy a scale; that he stated to said Kisseleff that he did not care to buy a scale, because he contemplated selling his business; that thereupon “said Kisseleff requested that affiant permit him (Kisseleff) to send him (affiant) a scale on approval, that is to say, that if he changed his mind and did decide to keep the scale, he could do so,.but that if he sold his store or for any other reason decided that he didn’t care to keep the scale, he could return it;” that said Kisseleff “was very urgent and importuned the affiant- for permission to send him a scale on approval,” and that affiant finally consented that this might be done; that thereupon “said Kisseleff shoved a paper partly printed and partly written toward affiant, who can neither read nor write English, saying that that paper was the necessary authorization to send said scale on approval, and affiant, not having been made familiar with the contents of same, signed said paper supposing it to be what said Kisseleff represented it to be. Affiant emphatically denies that he ever knowingly signed the contract and notes referred to in plaintiff’s declaration, but that his signature thereto was procured by the misrepresentation and deceit of plaintiff’s agent;” that about two pr three days later affiant ascertained the contents of said paper and wrote plaintiff not to ship said scale; that when the scale was delivered lie declined to accept it and returned it to the plaintiff.</p>

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

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District.of Columbia sustaining a demurrer to the declaration in an action to recover damages for personal injuries, and, plaintiff electing not to amend, dismissing the action.

<p>Patents; Interference; Priority; Mandamus.</p> <p>1. An award of priority in interference does not necessarily entitle the party in whose favor it is made to a patent. (Following Sobey v. Bolselaw, 28 App. D. C. 65; Burson v. Vogel, 29 App. D. C. 388; Guemffet v. Wichtorsohn, 30 App. D. C. 432; and Norling v. Bayes, 37 App. D. C. 169.)</p> <p>2. Mandamus cannot be made to perform the function of an appeal or writ of error, .and it will not ordinarily be granted if there is another legal remedy, nor unless the duty sought to be enforced is clear and indisputable. (Citing Moore v. United States, 40 App. D. C. 591.)</p> <p>3. Mandamus will not issue to control the manner in which the Commissioner of Patents shall exercise his jurisdiction in proceedings before him, where an appeal to correct any errors therein committed will lie to this court. (Citing Billings v. Field, 36 App. D. C. 16.^)</p>

<p>Patents; Interference; Mandamus; Stare Decisis.</p> <p>1. The- Commissioner of Patents cannot, after denying the right of an assignee of a patent and future improvements to intervene in an interference proceeding between the assignor’s subsequent application involving improvements, and an application by a third person, bp compelled by mandamus to permit the intervention, even if his decision was wrong.</p> <p>2. Mandamus will not issue in favor of the assignee of a patent to compel the Commissioner of Patents to declare an interference between the patent and an application by a third person, since the determination of the existence of an interference is confided to the judgment and discretion of the Commissioner by sec. 4904, U. S. Rev. Stat. U. S. Comp. Stat. 1901, p. 3389, providing that whenever an application is made for a patent' which, in the opinion of the Commissioner, would interfere with a pending application or unexpired patent, ho shall give specified notice and direct the Primary Examiner to determine the question of priority; and that the Commissioner may issue a patent to the prior party unless the adverse party appeals; and especially since the relator after patent to the third person has a remedy for infringement, a special remedy under see. 4918, U. S, Rev. Stat. U. S. Comp. Stat. 1901, p. 3394, and possibly a right to reopen the case and prosecute an appeal from the Commissioner’s refusal to declare the interference.</p> <p>3. The writ of mandamus cannot be substituted for an appeal or writ of error.</p> <p>4. The issuance of mandamus to compel the Commissioner of Patents to permit the assignee of a patent and future improvements to intervene in an interference proceeding between a subsequent application by the assignor for improvements and an application by a third person, and to declare an interference between the assigned patent and the latter application, is not required by the fact that a United States district court has adjudged title to the assignor’s invention to be in the assignee, upon the theory that it is the Commissioner’s duty to give effect to that decision, since the Commissioner acts in such matters in a quasi judicial capacity.</p>

The Court in the opinion stated the facts as follows: This case is before us on a writ of error to the police court. Clinton 0. Smithson, plaintiff in error, was tried on an information charging him with erecting a frame shed within the fire limits, in violation of the building regulations.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia convicting him of obtaining money by false pretenses with intent to defraud. The Court in the opinion stated the facts as follows: The defendant, George P. Robinson, appellant here, was convicted in the supreme court of the District of the offense of obtaining money by false pretenses, “with intent to defraud” .

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia sustaining a demurrer to the declaration in an action to recover damages for injury to property alleged to have been caused by the negligence of the agents and employees of the defendant, and the plaintiff electing not to amend, dismissing the action.

Hearing on an appeal by the caveator from a decree of the Supreme Court of the District of Columbia dismissing a caveat to a will. The Court in the opinion stated the facts as follows: Diller B. Groff died in this District March 8, 1910. His will was admitted to probate and record May 17, 1910. By its terms he bequeathed to Rosa V. Groff $1,000, to Edna Groff $1,000, to Emory Groff $2,000, to Adam II.

Hearing on an appeal by the defendant from a judgment for the plaintiff in the Supreme Court of the District of Columbia under the 73 d rule, for want of a sufficient affidavit of defense. The Court in the opinion stated the facts as follows: Appeal from a judgment for the plaintiff under the 73d rule in the supreme court of the District.

Hearing on an appeal by tbe plaintiffs from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover the amount paid for a moving picture business.

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: Appeal from a decision of the Commissioner of Patents sustaining the opposition of Cluett, Peabody, & Company, appellee, to the registration to the appellant, Tim & Company, under the ten-year clause of the trademark act, of the word “Troy” as a trademark for men’s outer shirts and collars.

Hearing on an appeal from a decision of the Commissioner of Patents refusing a patent for an alleged improvement in ornamented articles. The facts are stated in the opinion.

Hearing on an appeal from a decision of the Commissioner of Patents refusing 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 a patent to John F. O’Connor, appellant, for a device for making refrigerator car doors air-tight._ It consists of a metal Z-shaped spring set in a recess in the edge of the door extending continuously around the door.

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: Appeal from a decision of the Commissioner of Patents in an interference proceeding in which priority of invention was awarded the appellee, George B. Thomas.

Motion to docket and dismiss an appeal from a decision of tbe Commissioner of Patents in an interference proceeding. Tbe facts are stated in tbe opinion.

Hearing on an appeal by tbe plaintiff from a decree of tbe Supreme Court of the District of Columbia refusing him a divorce. The Court in the opinion stated the facts as follows: Appellant, Clarence A. Bateman, filed a bill in the supreme court of the District of Columbia for divorce from appellee, Evangeline L. Bateman, hereafter called defendant, and for the custody of their two minor children.

Hearing on an appeal by the petitioners from an order of the Supreme Court of the District of Columbia discharging a writ of habeas corpus and remanding them to the custody of the marshal. The Court in the opinion stated the facts as follows: This is an appeal from an order discharging a writ of habeas corpus and remanding the petitioners, Franklin C. Goodale and Pearl V. Goodale, to the custody of Maurice Splain the marshal of the District of Columbia.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia' convicting him of manslaughter. The Court in the opinion stated the facts as follows: The appellant, John J. Patten, hereinafter designated as the defendant, was indicted with three others for murder in the first degree, was separately tried and convicted of manslaughter.

Hearing on an appeal by the defendants from a judgment of the Supreme Court of the District of Columbia, on verdict for plaintiff, in an action to recover possession of certain real estate.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action brought to recover damages for personal injuries. The Court in the opinion stated the facts as follows: This is an appeal from a judgment entered on a verdict directed to be returned for the defendants.

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia, on verdict, in an action for tbe recovery of a broker’s commission.

Hearing oh an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia on a verdict directed by the court, in an action on a public contractor’s bond. The Court in the opinion stated the facts as follows: Appellant, National Electrical Supply Company, contracted with one B. E. Smith, trading under the name of B. E. Smith Fireproof Construction Company, to install certain electrical work in the United States jail in the District of Columbia.

<p>Contracts; Consideration; Conflict of Laws.</p> <p>1. A materialman’s promise to refrain from prosecuting a lien against the premises improved is, when acted upon, a suffeient consideration for the owner’s promise to pay for the materials furnished to his contractor.</p> <p>2. An action instituted in the District of Columbia upon the promise of the owner of a building under construction to pay materialmen for material furnished to the principal contractor, is governed by sec. 1257, D. C. Code (31 Stat. at L. 1387, chap. 854), forbidding a judgment on such a promise when not in writing; especially where the promise was entered into and partly performed in the District of Columbia, and although both the owner’s contract with the contractor and the latter’s contract with the materialmen were to be performed in Maryland. (Citing Willard v. Wood, 1 App. D. C. 44.)</p>

<p>Deeds; Consideration; Evidence; Illegitimates; Beneficiaries.</p> <p>1. A deed of trust in which the beneficiaries are described as the grantor’s “wife and her children by him begotten” does not show on its face that its consideration was illicit intercourse so as to render it void, where, although she was not his lawful wife, such fact is not indicated by the deed, and the circumstances tend to show that she believed. ' herself to be his wife.</p> <p>2. Evidence is insufficient to establish that a deed unobjectionable on its. face was executed in consideration of illicit intercourse, unless it-shows that there was a mutual understanding to that effect between the parties.</p> <p>3. A deed made by a father for the benefit of his illegitimate children is based upon good and supporting consideration.</p> <p>4. A deed of trust executed by persons who have been living together’ as husband and wife and have children, and designating the beneficiaries as the “wife,” naming her, and her children begotten by him, is not rendered indefinite as to beneficiaries by reason of the facts that she was not his lawful wife, and that the husband had a lawful wife living who had borne him a child.</p>

Hearing on an appeal by tbe plaintiff from a judgment of the Supreme Court of the District of Columbia in favor of defendant on an agreed statement of'facts, in an action brought to enforce an assessment upon a stock subscription.

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 a broker’s commission. The Court in tbe opinion stated tbe facts as follows: This action was begun by Leonard W. Groomes, plaintiff, in tbe municipal court, to recover of defendant,. Mortimer DuPerow, tbe sum of $152.22 as commission due on tbe sale of a lot.

<p>Pleading; Affidavits; Accounts Stated; Reasonable Time.</p> <p>1. A plaintiff’s affidavit must be direct and unequivocal to warrant tbe enforcement of the 73d rule, which has the effect of depriving the defendant of a trial on the merits (citing 8t. Claw v. Conion, 12 App. D. C. 163) ; but an affidavit of defense filed thereunder is sufficient to prevent the entry of summary judgment, if, taken as a whole, it convinces the court that it was made in good faith, and presents substantial reasons why the rule should not be enforced. (Citing Codington v. Standard Bank, 40 App. D. C. 409.)</p> <p>2. An account rendered, and not objected to within a reasonable time, is to be regarded as admitted by the party charged, to be prima facie correct, and may not be impeached save for fraud, error, or mistake. Citing Cordon v. Frazer, 13 App. D. C. 382.)</p> <p>3. The question as to what constitutes a reasonable time during which an account rendered may be retained without objection before it becomes an account stated is one of law in the Eederal courts where the facts are clear.</p> <p>4. The retention of an account rendered for eight months without objection is unreasonable, and transforms it into an account stated.</p> <p>5. A debtor’s contention that his creditor’s bill is too high raises merely a question of measure of liability, which is not a defense after the bill has become an account stated.</p>

<p>Hearing on an appeal by tbe plaintiff from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action brought to recover damages for personal injuries.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>Action in tort brought by James C. Fountaine, appellant, in the supreme court of the District of Columbia to recover damages for personal injuries sustained while attempting to board a street car on defendant company’s line in this city. From a verdict in favor of the Washington Pailway & Electric Company, defendant, the case comes here on appeal.</p> <p>The only assignment of error entitled to consideration relates to certain evidence admitted on behalf of defendant for the purpose of impeachment. Plaintiff, in his testimony in chief, testified in substance that he stepped on the car in question, and reached around two passengers standing upon the platform to catch a brass bar on the rear end of the car adjacent to the steps and platform,' when the car gave a sudden jerk, throwing him to the street and injuring him. The defense was that plaintiff was injured while attempting to board a moving car.</p> <p>On direct examination, plaintiff testified that the car had stopped before he attempted to board it. On cross-examination, he testified as follows:</p> <p>Q. Is it not a fact that when the car approached M street, the place where it regularly stops, either for a fire stop or to take on passengers, that you attempted to board it before it t stopped ?</p> <p>A. No, sir; I did not need to do it. I had no need to do it, indeed. I was there in plenty of time, and before any ear came ■in sight.</p> <p>Q. Is not that the fact?</p> <p>A. No, sir; I didn’t attempt to board that car until it came to a standstill. Another thing, if it was not going to stop there, the law compels it to stop there, to my understanding. It is a fire stop, and the cars are bound to stop there, and I surely could have stepped on the car. I could have gotten part of the way on, if not all the way on. I did not get all the way, I wish I had.</p> <p>Q. Now, how certain are you that the car had come to a stop before you attempted to board it?</p> <p>A. I am very certain, because I was in my right mind and knew what I was doing. I had gotten on the car time and again, and surely wouldn’t get on a car going.</p> <p>Q. You never did get on a car while it was going ?</p> <p>A. I may have in my lifetime.</p> <p>Q. At that very point?</p> <p>A. I don’t remember getting on a car before it stopped.</p> <p>Q. Well, would you remember?</p> <p>A. Would I remember it?</p> <p>Q. Don’t you know that you frequently got on the car there before it stopped, and were warned by the conductor about it ?</p> <p>A. No, sir; I don’t remember anything of the kind.</p> <p>Q. Well, will you say it is not so?</p> <p>A. Yes, I said I don’t remember getting on a car there before it stopped, in my life. Now, I don’t get on cars before they stop.</p> <p>For the purpose of impeaching plaintiff, counsel for defendant placed a conductor on the stand who testified that he was present and saw plaintiff immediately after the accident, “and recognized him as a man who had often ridden on witness’s car, boarding it sometimes at M street, and sometimes at L street,” and who “further testified in response to questions of defendant’s counsel, and over the objection of plaintiff’s counsel, that plaintiff had repeatedly run for and jumped aboard the witness’s car while it was in motion, and that witness had cautioned him that it was a dangerous thing to do.”</p>

Hearing on an appeal by the petitioner from an order of the Supreme Court of the District of Columbia discharging his petition for the writ of habeas corpus. The Court in'the opinion stated the facts as follows: This is an appeal from an order of the supreme court of the District discharging a writ of habeas corpus.

Petition for writ of error to review a decision denying liability of the District of Columbia to damages for alleged negligence of employees of the health department.

<p>. Motions to recall mandate and for writ of mandamus to pay over funds under decree denying attorney’s lien thereon.</p>

<p>Officers; Oath of Office; Statutes; Construction; Removal of Officer; Notice and Hearing; Restoration; Mandamus.</p> <p>1. None but a de jure officer can in mandamus question irregularities in proceedings by which he was removed from office.</p> <p>2. An interpretation of a statute long acquiesced in, while not conclusive, should not be disturbed unless clearly wrong.</p> <p>3. The authority conferred by sec. 13 of the act of Congress of August 14, 1894 (28 Stat. at L. 282, chap. 287), upon the assessor of the District of Columbia, in the discharge of his duties devolved upon him, to “administer all necessary oaths and affirmations,” should be held to extend to the administration of the oath of office to assistant assessors, in view of the assessor’s exercise of such a prerogative without objection for nine years, and especially in view of the policy of Congress to permit principal officers to administer the oath of office to their assistants, and of the provision in see. 1758, U. S. Rev. Stat. U. S. Comp. Stat. 1901, p. 1202, that the oath of office of any appointed or elected officer under the United States government may be taken before any officer authorized by any law of the United States, or by the local law, to administer oaths in the state, territory, or district where such oaths may be administered.</p> <p>4. An appointment to take effect in two months when the office would become vacant does not fall within the requirement as to qualification in ten days, imposed by the act of Congress of August 14, 1894 (28 Stat. at L. 282, chap. 287), making the appointment of an assistant assessor of the District of Columbia void if the appointee does not qualify within ten days after receiving his appointment, or if he does not assume the duties of the office within fifteen days after qualifying; and qualification in such a case when the appointment takes effect is sufficient.</p> <p>5. An oath to support the Constitution of the United States and faithfully discharge the duties of the office is a sufficient compliance with the act of Congress of August 14, 1894 (28 Stat. at L. 282, chap. 287), requiring assistant assessors of the District of Columbia to take oath diligently, faithfully, and impartially to perforin the duties of their office.</p> <p>6. Notice and hearing are prerequisites to the removal by the commissioner of the District of Columbia of an assistant assessor of the District under the act of Congress of July 1, 1902 (32 Stat. at L. 617, chap. 1352), sec. 6 of which provides that assessors or assistant assessors shall not be removed except for inefficiency, neglect of duties, or malfeasance in office. (Distinguishing United states eso ret. Brown v. Lane, 40 App. D. C. 533.)</p> <p>7. The fact that the conduct of an official may have been the subject of inquiry in another tribunal does not relax the duty of the tribunal empowered to remove him, to accord him a hearing.</p> <p>8. Proceedings for the removal of a public officer are adversary or judicial in character, and if the organic law of the governmental entity is silent as to the mode of procedure, the substantial principles of common law as to proceedings affecting private rights must be observed.</p> <p>9. The requirement of notice and hearing of proceedings for the removal of an officer of the District of Columbia must be observed by the commissioners when seeking to effect a removal by reversing an acquittal of the incumbent by their predecessors, upon evidence taken on the hearing before the latter, and on a hearing as to the incumbent’s conduct, had before a congressional committee.1</p> <p>10. Mandamus is the proper and most adequate remedy in favor of a person illegally removed from public office without notice and hearing, since, the order of removal being void, the attempted appointment of a successor is a nullity.</p>

Hearing on an appeal by tbe Commissioner of Patents from a decree of the Supreme Court of the District of Columbia directing him to renew the registration of plaintiff’s trademark. The Court in the opinion stated' the facts as follows: .

Hearing odl an appeal by one of several defendants from a decree of the Supreme Court of the District of Columbia declaring certificates of tax sales for certain lots barred by laches, and enjoining the District Commissioners from issuing to defendant deeds to the lots under the certificates. The facts are stated in the opinion.

<p>Reai, Estate; Brokers; Inducing Cause; Commissions.</p> <p>1. While a broker who, authorized to make a sale of real estate, was the procuring cause of a sale by the owner, is entitled to commissions in the absence of bad faith on his part, even though the owner is ignorant of it at the time (citing Bryan v. Abort, 3 App. D. C. 180; and Simms v. Booth, ante, 263), it is also the rule that where the purchaser has negotiated with different authorized agents of the owner, the agent entitled to the commission, is he who first' brings to the owner a contract satisfactory to him, which he accepts, provided there has been no collusion between the agent and owner to defeat another agent who negotiated with the purchaser. (Citing Evans v. Shinn, 40 App. D. C. 557.)</p> <p>2. A broker who makes the second of two unsuccessful attempts to induce a person to buy real estate, suggesting the formation of a syndicate, is not the inducing cause so as to entitle him to commission, of a sale to a syndicate formed for the purchase of the land, which such person joins at the behest of persons who form it of their own initiative, in good faith, and without knowledge of the broker’s previous activities.</p>

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

Hearing on an appeal by the Commissioner of Patents in an interference proceeding. The Court in the opinion stated the facts as follows: This is an appeal from the decision of the Commissioner of Patents awarding priority to Andrew Smith of an invention of a draining culvert, in an interference proceeding’ between him and Julius H. Schlafly, appellant. The issue is in three counts, as follows: “1.

Hearing on an appeal from concurrent decisions of the Commissioner of Patents in an interference proceeding. The Court in the opinion stated the facts as follows: Appeal from concurrent decisions of the Patent Office in an interference proceeding in which priority of invention was awarded to John M. Busby, appellee here, upon the ground that the question involved was res judicata by reason of a final decision for the appellee in a former interference between the same parties.

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

Hearing on a motion by appellants for an extension of time witbin which to file a brief, and on a motion by the appellee to dismiss or affirm. The Court in the opinion stated the facts as follows: This is an appeal from a decree entered January 28, 1914, and an order denying a motion to vacate the same. The transcript has been printed. The time within which appellants’ brief should have been filed expired May 18th.

Hearing on an appeal by the defendants from a judgment of the- Supreme Court of the District of Columbia convicting them óf embezzlement.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, granted under the 73d rule of that court for want of a sufficient affidavit of defense, in an action ag’ainst the surety on the bond of a contractor with the District of Columbia for the erection of a public building in the District.

Appeal by the defendant from a judgment of the Supreme Court of the District of Columbia under the IjBd rule of that court, for want of a sufficient affidavit of defense in an action upon a bond.

Appeal by the defendant from a judgment of the Supreme Court of the District of Columbia under the 73d rule of that court, for want of a sufficient affidavit of defense in an action upon a bond.

Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia granting specific performance of a contract of sale of certain real estate. The facts are stated in the opinion.

<p>Hearing on an appeal by tbe defendants from a decree of the Supreme Court of the District of Columbia construing the will of John W. Thompson,' deceased.</p>

<p>Mandamus; Judgment; Appeal and Erbob.</p> <p>Mandamus is not the proper remedy to compel a justice of the supreme court of the District of Columbia to enter a final decree in a cause remanded thereto by this court, the appropriate remedy being by appeal.</p>

■ Hearing on a writ of error to the Juvenile Court of the District of Columbia to review a judgment convicting defendant of the crime of petit larceny. Tlie Court in the opinion stated the facts as follows: This case is before ns on writ of error to the juvenile court to review a judgment of that court convicting plaintiff in error, Allen B. Ledrick, a youth of thirteen years of age, and sentencing him to the custody of the board of children’s guardians during his minority.

' Hearing on an appeal by tbe defendant from a judgment for tbe plaintiff in tbe Supreme Court of tbe District of Columbia, under the 73 d rule, in an action to recover a commission alleged to be due plaintiff for negotiating an exchange of real estate between defendant and another.

Hearing on cross appeals from an order of the Supreme Court of the District of Columbia holding a Probate Court, directing one executor to pay to another executor a certain sum of money.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia discharging a writ of habeas corpus sued out by him, and remanding him to the custody of the United States marshal.

Hjeartng 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 to recover damages for the alleged negligent failure of defendant promptly to deliver a telegram.

Hearing on a special appeal by the defendant from an order of tbe Supreme Court of the District of Columbia denying a motion for restitution of property taken under an erroneous judgment. The Court in the opinion stated the facts as follows: This is a special appeal from an order of the supreme court of the District of Columbia denying a motion for restitution.

Hearing on writ of error to tbe Police Court of the District of Columbia holding defendant guilty of loaning money on security at more than 6 per cent interest.

<p>Criminal Law; Evidence of Other Crimes.</p> <p>1. Evidence is inadmissible in a criminal ease to show that under another name the accused previously committed another and distinct crime, where his identity is not in issue.</p> <p>2. Evidence that one charged with crime falsely denied having been arrested on another occasion is not admissible in evidence as tending to show consciousness of guilt of the crime charged.</p>

<p>Hearing on an appeal by the relators from a judgment of the Supreme Court of the District of Columbia dismissing their petition for a writ of mandamus to compel the respondent to condemn land for a street extension.</p> <p>The Court in the opinion stated tbe facts as follows:</p> <p>This appeal is from a judgment of the supreme court of the District of Columbia dismissing the petition of Oliver P. Newman, Frederick L. Siddons, and Chester Harding, the Commissioners of the District, relators, for a writ of mandamus to compel the City & Suburban Eailway Company to acquire and dedicate the land necessary for the extension of Ehode Island avenue to the District line.</p> <p>It appears that by act of Congress of August 1, 1892 (27 Stat. at L. 341, chap. 353), the Maryland & Washington Eailway Company was incorporated and authorized to construct a line of railway along Rhode Island avenue to its intersection with the northeast boundary line of the District of Columbia. Sec. 24 of the act provided: “That in the event that the company should not be able to come' to an agreement with the owner or owners of any land through which the said road may be located to pass,, proceedings for the condemnation for the use of the company of so much of said- land as may be required, not exceeding 50 feet in width, with necessary slopes, and 130 feet in width in the line of Rhode Island avenue extended, may be instituted in the usual way in the supreme court of the District of Columbia, under such rules and regulations as said court may prescribe for such purposes: Provided, That the extension of Rhode Island avenue herein authorized, whether acquired by condemnation or otherwise, shall be dedicated to the public use in the same manner and subject to the same regulations and control that apply to other streets and avenues in the District of Columbia occupied by street railways.”</p> <p>By act of Congress of March 2, 1895 (28 Stat. at L. 713, chap. 166), sec. 24 was amended.to read as follows: “That in the event that Rhode Island avenue shall not have been extended, and said company shall not be able to come to an agreement with the owner or owners of any land through which the said road may be located to pass for the purchase or dedication of so much land as may be necessary for the opening of Rhode Island avenue, then the said company may institute proceedings for the condemnation of so much land as may be required for the extension of the aforesaid avenue: Provided, That the strip of land so to be acquired by condemnation shall be 130 feet in width, and shall be located according to the .official plats for the extension of Rhode Island avenue: And provided further, That all the land within the lines of the proposed extension of Rhode Island avenue which shall be acquired by said Maryland & Washington Railway Company, either by purchase or by condemnation, shall, by appropriate conveyance, be dedicated, before tracks are laid therein, by said Maryland & Washington Railway Company, as an extension of Rhode Island avenue to the extent of the land so acquired.” Sec. 3 of the same act provided that the building of the railway should be commenced within six months, and completed within one year from the approval of the act.</p> <p>Under a subsequent act of Congress, the Maryland & Washington Railway Company was authorized to convey its property and franchises to the Eckington & Soldiers Home Railway. The Eckington Company acquired the property, and, by authority conferred by the act, changed its name to City & Suburban Railway Company of Washington, respondents in this action.</p> <p>By act of Congress of February 20, 1896 (29 Stat. at L. 11, chap. 27), the railway company was granted an extension of one year within which to complete its road. Sec. 6 of the act of Congress approved June 27, 1898 (30 Stat. at L. 490, chap. 499), placed the following limitation upon the power of the railroad company to institute condemnation proceedings: “That the power to institute condemnation proceedings conferred upon the Maryland & Washington Railway Company by sec. 24 of the joint resolution entitled 'A joint resolution to extend the charter of the Maryland and Washington Railway Company,’ approved August 23d, 1894, be, and the same is hereby, continued in force one year from the passage of this act.”</p>

ITraring- on an appeal (specially allowed) by the plaintiffs from an order of the Supreme Court of the District of Columbia denying a motion for judgment under the 73d rule in an action to recover for the breach of a lease. The Court in the opinion stated the facts as follows: This is an action in assumpsit to recover for the breach of a lease, and John O. F. Slayton and James A. Neal, plaintiffs, appeal* from an order denying judgment on a motion under the 73d rule.

Hearing on an appeal by tbe defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover money paid by plaintiff on an unexecuted contract for the purchase of certain real estate of the defendant.

<p>Criminal Law; Accomplice; “Betting.”</p> <p>Ohe who hets in violation of law may be convicted on the testimony of the person with whom he hets, as the latter is not his accomplice.</p>

Hearing on an appeal by the intervening petitioners from an order of the Supreme Court of the District of Columbia dismissing an intervening petition filed by them in a suit for an accounting and dissolution of a partnership. The Court in the opinion stated the facts as follows: This appeal is from an order of the supreme court of the District dismissing an intervening petition filed by George E. Sullivan and Walter 0. English, the appellants.

Hearing on an appeal by the plaintiff from a judgment of 'the Supreme Court of the District of Columbia on demurrer to a declaration filed to recover a certain amount claimed to be due plaintiff under a covenant in a lease. The Court in the opinion stated the facts as follows: This is an appeal from a judgment on demurrer to the declaration of Jacob Keroes, the appellant in the court below.

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

<p>Corporations; Telegraphs and Telephones; Agents; Pleading; Torts; Libel and Slander.</p> <p>1. While it is well settled that for acts done by the agents of a corporation, either ece contractu or in delicto, in the course of its business and of their employment, the corporation is responsible, as an individual is responsible under similar circumstances, it is equally well settled that, before a corporation can be held liable for the torts of its agents, the acts complained of must be performed, either directly within the course and scope of the agent’s employment, or while acting under the express direction of the corporation itself. It is not necessary that power be given the agent in writing, or by a vote of the corporation authorizing the act; but in the absence of such authority, there must be evidence of some facts from which the court may fairly and legitimately infer its existence'.</p> <p>2. An averment in a declaration in an action for slander against a corporation, that the alleged slanderous words were uttered by agents of the defendant, “acting within the scope of their authority” is the statement of a conclusion of law, and the declaration is demurrable if it contains no facts showing express authority on the part of the agents to utter the words, or from which it may be reasonably inferred they had such authority.</p> <p>3. Statements of a telephone operator refusing to call a delinquent subscriber, and of a lineman removing his phone in the presence of third persons, that such course was taken for nonpayment of dues, cannot be held within the scope of their authority, in the absence of an express showing to that effect, so as to render the company liable to the subscriber for the resulting damages.</p>

<p>Landlord and Tenant; Estate for Years; Holding Over.</p> <p>1. An estate for years at common law is not necessarily a tenancy for a certain number of years, but the expression is applied to any tenancy for a certain time, as for one or more years, or for a half or quarter of a year, its essential character being that it must be for a greater or less period of fixed duration.</p> <p>2. At common law a tenant for years became, by holding over, a tenant for an additional year, and so on from year to year at the pleasure of the parties.</p> <p>3. A holdover from a tenancy for years may terminate his tenancy before</p> <p>the end of a year by giving notice in accordance with sec. 1221, D. C. Code (31 Stat. at L. 1382, chap. 854), permitting a tenancy by sufferance to be terminated by thirty days’ notice, although his lease provided by holding over he would become a tenant from year to year, since sec. 1034 provides that holding over after a tenancy for years creates a tenancy by sufferance.</p>

Hearing on cross appeals from a judgment of the Supreme Court of the District of Columbia in favor of plaintiffs for a less sum than demanded in an action to recover an amount alleged to be due for breach of covenant in a lease; plaintiffs appealing from the amount of the judgment, and defendant appealing from the judgment in favor of plaintiffs.

Hearing on appeals by defendants in consolidated actions from a decree of the Supreme Court of the District of Columbia restraining defendants in No. 2728 from interfering with plaintiff in conducting baseball games in his park on Sunday and from a judgment directing defendant in No. 2729 to issue a license to plaintiff for such days of the week as he might request.

<p>Hearing on an appeal by tbe defendants from a decree of tbe Supreme Court of the District of Columbia overruling tbeii demurrer to a bill filed for the establishment of a lien for materials furnished and labor performed in the construction of a building by them.</p> <p>The Court in the opinion stated the facts as follows':'</p> <p>This is an appeal by Mahlon A. Winter, George W. Faris, and the Fidelity & Deposit Company of Maryland, defendants, from a decree of the supreme court of the District of Columbia entered upon a demurrer to a bill in equity. The bill was filed by the appellee corporation, ITazen-Latimer Company, as a subcontractor for a lien for materials furnished and labor performed in the construction of a building for appellants Winter and Faris. Defendant Piper was the contractor, and the Fidelity & Deposit Company of Maryland, his surety. The property in question was released by an undertaking under sec. 1255 of the Code [31 Stat. at L. 1387, chap. 854], with the owners Winter and Faris as principals, and the Fidelity & Deposit Company as surety. The bill sought a decree against the appellants for the amount of the claim, $1,016.</p> <p>The contract between the owners and Piper, the contractor, provided that the consideration should be paid in instalments as the work progressed, the first payment of $3,200 to be made when the first-floor joists were laid. Before this payment became due, the subcontractor, Plazen-Latimer Company, had performed the work here in question under its agreement with the contractor. When the first-floor joists were laid, the owners, without notice of the claim of the .subcontractor, paid the contractor the first payment of $3,200, after which the contractor absconded from the District without paying plaintiff, and has not returned.</p> <p>The material provisions of the bond are as follows: “If the said principal shall voluntarily' abandon said contract, or be lawfully compelled by the owner-to cease operation thereunder, by reason of his nonperformance of any of its terms or conditions, then the surety shall have the right, in its option, to assume the said contract and to sublet to complete the same, and if said contract shall be assumed by the surety, then as such contract is duly performed, any reserve, deferred payments, and all other moneys provided by said contract to be paid to the principal shall be paid to the surety at the times and under the same conditions as by the terms thereof, such moneys shall have been paid to the principal had the contract been duly jierformed by him; and if said owner shall complete or relet the said contract, then any forfeiture provided in said contract against the principal shall not be operative as against the surety, but all reserves, deferred payments, and all other moneys provided in said contract, which would have been paid to the principal had he completed the contract in accordance with its terms, shall be credited upon any claim the said owner may make upon said surety.”</p>

<p>Conflict of Laws; Life Insurance; Death; Presumption from Absence ; Statute.</p> <p>1. The laws of the District of Columbia govern a policy of life insurance issued therein by a fraternal insurance association doing business in the District, but organized under the laws of a State. (Following Metropolitan Jj. Ins. Co. v. Haielcins, 31 App. D. C. 493.)</p> <p>2. A law of a fraternal insurance association, providing that disappearance or long-continued absence of a member shall not be evidence of death before the end of the period of his life expectancy, namely, seventy years, is without effect so far as it contravenes sec. 252, D. C. Code (31 Stat. at L. 1230, chap. 854), creating a presumption of death from seven years’ absence. (Citing Metropolitan L. Ins. Co. v. Hawkins, supra.)</p>

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover the net- proceeds of certain shares of stock alleged to have been converted by the defendants.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia granting claimant’s petition for the delivery of certain attached property to him as the owner thereof. The Court in the opinion stated the facts as follows': Kingan & Company appellant, recovered a judgment on May 16, 1913, against J. Noble Hoover for the sum of $923.85. Execution issued thereon May 17, levied by the marshal upon twenty-eight tubs of lard valued at $205.80.

<p>Hearing on two appeals from a decree of the Supreme Court of the District of Columbia vacating the transfer of certain real estate made by an insolvent debtor within four months of the filing by him of a petition in bankruptcy.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>There are two appeals in this case from the same decree, which vacates the transfer of certain real estate made by an insolvent debtor, Clarendon Smith, within four months of the filing of liis petition in bankruptcy. The bill was filed by Lucas P. Loving, wbo bad been appointed trustee of tbe bankrupt’s estate. It alleged that on June 8, 1908, tbe said Smith was indebted to Golden & Company in the sum of $7,567.80, and on said date conveyed the house and lot, No. 912 “S” St. N. W., to Ernest H. Daniel for the sum of $8,000, subject to a registered mortgage of $3,000. That Daniel acted as agent for Golden & Company in the transaction, who furnished the money for the purchase and held the property for them. That said Smith immediately turned over to Golden & Company the sum of $7,567.80, received from Daniel in payment of an outstanding debt due by him to them. That at the time of the said conveyance and payment, the said Smith was insolvent, which Golden & Company well knew. . That the transaction was a scheme to secure a preference to Golden & Company over other creditors.</p> <p>The prayers for relief are that the conveyance to Daniel be declared void, and that he be required to reconvey the property to the plaintiff.</p> <p>2d. In case of the refusal of the relief first prayed, Golden & Company be ordered to pay to the plaintiff the sum of $7,567.80 paid them by the said Smith, with interest from June 8, 1908.</p> <p>The allegations of the bill were denied by Golden & Company and Daniel, and the case came on for hearing in the equity court on- the evidence then taken.' A decree was entered February 27, 1914, declaring void the conveyance to Daniel, and ordering him to reconvey the property to plaintiff by duly executed deed. The application of Golden & Company that, as a condition of the vacation of the conveyance, they be allowed to participate as general creditors to the full amount of their unpaid claim' in the distribution of the assets, was denied.-</p> <p>The prayer of the plaintiff for the recovery of the amount paid by Smith to Golden & Company was denied.</p> <p>Golden & Company appealed from the decree, and plaintiff, Loving, from so much of it as denied his prayer for the recovery of the amount received by the defendant as a preference of their debt through the sale of the property.</p> <p>The undisputed facts are that Clarendon Smith was in fact insolvent, at the time of the conveyance, June 8, 1908; for at that date, which was within four months of the filing of his petition in bankruptcy, the aggregate of his property at a fair valuation was insufficient to pay his debts, which is the present statutory definition of insolvency.</p> <p>Ho was engaged in two kinds of business. The first in which his chief indebtedness had accrued was the saLe of butter. He had no central place of business for said sales. He was accustomed to buy his stock from day to day and deliver the same to his customers on his route. As declared by himself it was “a mere route.” His stock was purchased from Golden & Company, to whom he was indebted to the sum of $7,567.80.</p> <p>ITis other business was the sale of feed at Fifth and “K” streets, which was conducted by his son with the aid of a bookkeeper. Smith had offered it for sale to a party who he thought would take it, paying the inventory price for stock and fixtures. This inventory made out by himself amounted to $2,946.69. His indebtedness at that time consisted of the account due Golden & Company of $7,567.80, and other unsecured debts aggregating about $5,576.54.</p> <p>Smith thought that if he could complete the sale of his house and lot and the feed business he would be able to pay all of his debts.</p> <p>He approached Golden & Company with a view to sell them his house and lot. They purchased at $8,000, cash, subject to the mortgage of $3,000, which, however, was not assumed.</p> <p>The conveyance was made June 8, 1908, to one Daniel, who was a stockholder of Golden & Company. Golden & Company deposited the money in bank to meet Daniel’s check. On the same day he delivered his check to Smith for $8,000, and received the deed. Smith then gave his check to Golden & Company for $7,567.80 and another for $106.85 to cover interest then due on the mortgage and taxes due on the property.</p> <p>Smith remained in possession of the property as a tenant of Daniel, who held it for Golden & Company. It is true that Smith testified that he did not know that he was insolvent at the time, and had no intention to prefer Golden & Company, and that the officers of Golden & Company testified that they had no intention of receiving a preference, and had- no reason to believe that Smith was insolvent and contemplated a preference. The property conveyed was nearly worth $11,000 at the time of the conveyance, and has since depreciated in value very considerably.</p> <p>Smith had been a customer of Golden & Company and its predecessor, and had frequently owed them more than on the above date. After the conveyance he continued to buy stock for cash “at his own request.” Smith owed at the time of payment $3,368.80 on open account. The remainder of the $7,567.80 consisted of notes not yet due, of which $1,000 had been discounted with a bank by Golden & Company.' These notes were not indorsed by anyone.</p> <p>The presiding justice, in an opinion reviewing the whole of the evidence, found that Smith made the conveyance with the intention to prefer, and that Golden & Company had reasonable cause to believe that Smith was insolvent.</p>

<p>Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, on verdict, for the defendant in an action to recover damages for personal injuries.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>Appellant, Annie L. Pearce, plaintiff below, brought an action in tort in the supreme court of the District of Columbia, to recover damages for personal injuries alleged to have been sustained while she was a passenger on one of defendant’s cars. The declaration was filed February 27, 1909, and amended, without objection by defendant, on February 26, 1912.</p> <p>The only error assigned by plaintiff necessary to be here considered relates to the following instruction given by the court on its own motion: “Now, a word about these injuries she is complaining of here. I call your attention to a fact that did not escape my attention at all, but none of the counsel said anything about it. This accident occurred over six years ago, the 4th of November, 1907. The original declaration was not filed until February 27, 1909, quite a long time after the accident, and in that declaration she says what her injuries were. The declaration reads: < 'The defendant started said car in motion, by reason whereof the plaintiff was then and there thrown violently to and upon the ground, whereby she sustained serious and permanent injuries to her head and shoulder, and was injured on her left hip and was seriously and permanently injured in and about her back.’ Those are the injuries described in her original declaration. The case came on for trial before in March, 1912, and, on February 26, she got leave to file an amendment to that declaration, in which she says: 'And was seriously and permanently injured in and about her left side, and sustained serious and permanent injuries to her left foot, and has suffered and still suffers and will continue to suffer derangement of the menstrual function.’ That is, four years and nearly four months after, the accident was the first time any question of that kind comes in the case. Then, there is this abnormal menstrual trouble, vicarious menstruation. Do you suppose if that was an injury she suffered in connection with that accident, she would not have told her counsel about it when she filed this declaration originally ? I am simply calling your attention to that fact, for you to consider whether that gives you any clue as to these injuries. It does not appear in the case for four years and nearly four months after the accident occurred. Do you suppose counsel such as she has here would have left that out if that had been the fact, and would she have kept that fact from her counsel when she was bringing to their attention the injuries which she had sustained? Of course, you are to consider that in connection with her testimony here and all the testimony in the case, as to whether or not she had suffered these injuries, and whether her testimony is entitled to be believed.”</p>

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia, on verdict, for tbe plaintiff, in an action to recover damages for injury to bis borse while in defendant’s care and custody.

Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia in favor of plaintiff in an equity suit to compel the surrender of a note pledged as collateral security and for an accounting for the payment thereof. ’ The Court in the opinion stated the facts as follows: This is a suit in equity begun by Fannie P. Blundon, administratrix of the estate of Joseph A. Blundon, deceased, against the United States Trust Company, appellant, and…

<p>Mandamus; Label; Registration.</p> <p>A decision by the Commissioner of Patents that a highway is not an article of manufacture for which a label may be registered under sec. 3 of the act of Congress of June 18, 1874 (18 Stat. at L. 79, chap. 301), cannot, even though erroneous, be reviewed by mandamus. (Citing Allen v. United States, 22 App. D. C. 271.)</p>

Hearing on an appeal by tbe defendants from a judgment of the Supreme Court of tbe District of Columbia convicting them of conspiracy. Tbe Court in tbe opinion stated tbe facts as follows: Tbis appeal is from a judgment upon a verdict in tbe Supreme Court of tbe District finding James J. Fletcher, George Noble, and May King, appellants guilty of conspiracy. Tbe judgment was entered in accordance with the mandate of tbis court. (Fletcher v. United States, ante, 53.)

.Hearing on an appeal by the relator from a judgment of the Supreme Court of the District of Columbia dismissing its petition for a writ of mandamus to compel the Interstate Commerce Commission to take jurisdiction and proceed on a complaint filed by relator before it.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia upon direction of a verdict for the defendant in an action of trespass quare clausum. The Court in the opinion stated the facts as follows':' This appeal is from a judgment in the supreme court of the District upon a directed verdict in favor of the defendant, Isaac B. Bursey, appellee, in an action of trespass quare clausum.

<p>Malicious Prosecution; Termination of Prosecution; Substitute Information.</p> <p>1. Before an action for malicious prosecution based upon a criminal proceeding can be sustained, it must appear that such proceeding has been terminated.</p> <p>2. No final termination of a criminal proceeding instituted by information, which will sustain an action of malicious prosecution, is effected by quashing the information on accused’s motion, with notice to him that a new information will be filed, where a new information filed on the same day and charging the same act is still pending, although no warrant was issued on the second information.</p> <p>3. The fact that a substitute information charges certain acts to have been done in violation of building regulations, whereas the original, which was quashed, charged that they were in violation of police regulations, does not, -where it is otherwise a continuation of the original proceedings, entitle the accused to maintain an action for malicious prosecution upon the theory that the proceeding under the original was terminated.</p>

<p>Hearing on separate appeals by the defendants from decrees of the Supreme Court of the District of Columbia vacating stock transfers to each defendant and ordering the surrender of the stock and vacating tho gifts of money and ordering its payment to the plaintiff.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>Two bills were filed by the Washington Loan & Trust Company as committee of Caroline L. Rixford, a lunatic, the first against George E. Little, appellant, and the Union Savings Bank, and the second against Callahan E. Keane, appellant, and the Union Savings Bank.</p> <p>The object of the bills was to cancel the transfer of twenty shares of the Union Savings Bank, ten each to Little and Keane respectively, made about December 31, 1812, and to recover of defendant Little the sum of $2,500, and from defendant Keane the sum of $2,700 given them by the said Caroline L. Rixford in November, 1912.</p> <p>The said Caroline L. Rixford was adjudged a lunatic in a proceeding had in the supreme court of the District of Columbia August 14, 1913, apd the Washington Loan & Trust Company appointed her committee. The bills were filed in the name of Caroline L. Rixford by the Washington Loan & Trust Company as her committee and next friend.</p> <p>It was alleged that she was of unsound mind at the time of making said transfers and gifts; that they were procured by the defendants, who knew of the condition of the donor, and through the exercise of persuasion, undue influence, etc.</p> <p>The defendants severally denied the lunacy of the donor and 'the exercise of undue influence, fraud, etc.</p> <p>The testimony tended to show that the said Caroline L. Rixford was suffering from senile dementia on the date of the adjudication, and the said condition existed for a period of about two years before. She was between eighty-five and eighty-nine, years of age. She owned an estate of about $40,000, and her securities were kept in the safety deposit vaults of the Union Savings Bank, of which Keane was custodian. He had a duplicate key to her box. He had occasionally advised her, and had once loaned her about $60 to pay her taxes. She was very friendly with him, and dined at his house every two weeks. Little was impecunious, and by his solicitation obtained from said Caroline L. Rixford permission to remove to her apartment iii the New Berne apartment house, where he kept a room for about four years. He performed various services for her, among others assisted in cooking and sweeping the apartment. He also collected rent for her during the time. He and Keane accompanied her to a law office on August 16, 1912, where she made a will appointing them her executors without bond. She bequeathed to them in trust for her nephew, Bradford R. Pease, $7,000, and to his son Edwin, $10,000, to be held for the latter until he became twenty-live years of age. After giving legacies to two sons of Little of $500 each, $100 to his daughter, and to Keane $3,000 and to his wife and daughter each $100, and some other persons, she bequeathed the residue of her estate to said Little and Keane.</p> <p>This will worked a revocation of a previous will made in October, 1909. She visited the office of the scrivener of the former will in July, 1911, and wanted a codicil made to that will, which the attorney declined to make because he thought she was in no mental condition to warrant it. She visited his office again on March 26, 1912, in company with Little, who said that she wanted to see him about a modification of her will, and that she did not understand that she had given so much to her nephew. The attorney took her into an inner office and questioned her. She said Little wanted her to change her will and give him a legacy of $5,000. He told her she was in no condition to make a will. She was nervous, and said she would be afraid to go back to the house with Little. Was afraid he would be ugly to her because of her not making this change, and insisted that he should make a codicil for her, giving Little something. The attorney then prepared for her a codicil to the will, giving Little $200. The amount was so small that he did not think it would do any harm.</p> <p>The testimony concerning the mental condition of the said Caroline L. Rixford at the time of transferring the stock and giving the $2,700 to Keane and the $2,500 to Little was in conflict.</p> <p>The learned trial justice who heard the witnesses was of the opinion that, as a matter of fact, the said Caroline L. Rixford was not of a sound mind on said dates and was incapable of attending to business. lie rendered decrees vacating the stock transfers to each defendant, and ordering the surrender of the stock, and also against each respectively, vacating the gifts of money and ordering its payment to the plaintiff.</p> <p>Each defendant took a separate appeal, and the said appeals were argued and submitted together.</p>

Hearing, on an appeal by tbe defendant from a judgment of the Supreme Court of the District of Columbia in favor of the plaintiff in an action to recover damages for personal injuries. The Court in the opinion stated the facts as follows': This is an appeal from a judgment for the plaintiff, Harry Himelright, in the supreme court of the District in an action against the defendant for personal injury.

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 the Commissioner of Patents in an interference proceeding. The usual questions arising in such cases relating to mechanism, conception, disclosure, and reduction to practice, are not involved in this appeal.

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

<p>Patents; Interference; Construction of Issues; Distinctiveness.</p> <p>1. High nitration nitrocellulose specified as an element in an application for a patent for a paint and varnish remover will not be held to embrace collodion, which is specified as an element in an earlier application of another party, so as to entitle him to an award upon counts in interference drawn upon the first-mentioned application, although the word “high” is relative, and collodion may under some conditions be brought within the term in which that word is used,—where such application, having first specified the term, and being therefore of great weight in its construction, states that the solubility of nitroeelluloses depends upon the nitration to which they have been subjected, high nitration giving difficulty soluble bodies and vice versa; and that when á varnish remover is to consist principally of a single alcohol or the mixture of the alcohols which are comparatively good solvents for the lower nitro compounds, it is desirable to use the slightly soluble nitration products so as produce the requisite viscosity with a relatively small amount of the nitro body; and that with the lesser solvents the more soluble lower nitrates of cellulose are more suitable.</p> <p>2. The equivalence of an alcoholic solvent specified in counts, as to which one party is the senior applicant, in an interference involving a paint and varnish remover, to a ketonic solvent, as an element of a composition covered by those counts, will not prevent an award in favor of the other party upon counts as to which he is the senior party, and which substitute high nitration niti’ocellulose which is soluble in ketone but insoluble in alcohol, for soluble nitrocellulose or cellulose radical, specified as the soluble body in the first-mentioned counts.</p>

<p>Patents; Interference; Priority; Patentability; Appeal and Error.</p> <p>1. The combination, as described in counts in interference, of benzol and wax as elements of a paint and varnish remover, was not disclosed in a prior application of one who is otherwise the junior party, specifying two compositions, one containing wax but no benzol, and the other containing benzol but no wax, especially where the tenor of the specifications shows an intent not to use them together.</p> <p>2. The question whether there is any patentable invention in adding benzol or wax respectively to a composition for a paint and varnish remover containing wax and no benzol, and one containing benzol and no wax, will not be considered on appeal to this court in an interference proceeding in which the question is one of priority, and not of patentability.</p>

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

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

<p>Patents; Interference; Conception; Evidence.</p> <p>A junior applicant cannot, in the absence of documentary or other tangible evidence of conception by him, be awarded priority upon his own testimony, when the same is not corroborated by clear and convincing evidence.</p>

Hearing on an appeal from a decision of tbe Commissioner of Patents in an interference proceeding. Tbe Court in tbe opinion stated the facts as follows: This is an appeal from tbe decision of the Commissioner of Patents in an interference proceeding awarding priority of invention to John E. Thropp, appellee.

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 ou 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 an Assistant Commissioner of Patents in an interference proceeding awarding priority of invention to Frank Engel, the appellee. The invention relates to storage-battery plates, and is set forth in four counts, as follows: “1.

Hearing on an appeal by tbe plaintiff from a decree of the Supreme Court of the District of Columbia dismissing his bill filed to recover contributions paid by him to the relief department of.the defendant railroad. The Court in the opinion stated the facts as follows: .

Hearing on an appeal by tbe respondent from a judgment of tbe Supreme Court of tbe District of Columbia confirming tbe verdict of a condemnation jury and returning an assessment against his land in a proceeding to establish a building line.

Hearing on an appeal from a decision of the Commissioner of Patents in an interference case.

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: Joseph E. Bissell, appellant, filed a reissue application on September 23, 1907, on a patent dated September 18, 1906, the application for which was filed March 21, 1906. Hermann Fottinger filed June 19, 1906. The invention is a power-transmitting machine in which liquid is employed as a transmitting medium.