Volume 44 — Appeals, District of Columbia

.Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia in a suit in equity to enforce mechanics’ liens.

<p>Trademarks; Goods ojt the Same Descriptive Properties; Disclaimer; Firm Name as Trademark. ,</p> <p>1..Within the meaning of the trademark act of Congress, powder used in washing various materials or articles, and adapted for use íd cleansing and polishing articles made of metal, is of the same descriptive property as metal polish, so that the use of the word “Kleeno” as part of a trademark, used by a company manufacturing the latter product, will infringe the rights of a company manufacturing the former product, and which has previously registered the word as a trademark therefor. (Citing American Stove Go. v. Detroit Stove Works, 31 App. D. C. 304; Walter Baker <& Go. v. Harrison, 32 App. D. C. 272, and Anglo-American Inca/ndeseent Light Go. v. General Hleetric Go. (43 App. D. C. 385.)</p> <p>2. The disclaimer by the applicant for the registration as a trademark, of a mark, part of which consisted of the word “Kleeno,” of that word, after an opposition has been filed, will not of itself justify the .dismissal of the opposition, as the practice of permitting a disclaimer under such circumstances would result in confusion, and' deprive the owner of a mark of the protection to which he is entitled. (Citing Carmel Wine Co. v. California Winery, 38 App. D. C. 1.)</p> <p>Note. — For cases passing upon the right to use trademark on articles other than those to which it is applied by the owner, see notes to Virginia Baking Co. v. Southern Biscuit Works, 30 L.R.A. (N.S.) 167, and Atlas Mfg. Co. v. Smith 47 L.R.A. (N.S.) 1003.</p> <p>3. Whether the firm name of manufacturers may be registered as part of their trademark depends upon how it is applied. (Citing Wm. A. Rogers v. IrúermAional Silver Go. 34 App. D. C. 410.)</p>

<p>Hearing on an appeal from a decision of tbe Commissioner of Patents in an interference proceeding.</p> <p>Tbe Court in tbe opinion stated tbe facts as follows:</p> <p>Tbis appeal is from tbe decision of tbe Commissioner of Patents in an interference proceeding awarding priority of invention to appellee, Charles V. Warren, for a lubricator for elevator guides.</p> <p>Tbe issue is in six counts, tbe first and fifth of which sufficiently illustrate tbe invention. They read as follows:</p> <p>“1. Tbe combination of an oil can having a nose, a cylinder adapted to reciprocate within said nose, said cylinder having an enlarged end, a spiral spring arranged between tbe end of tbe nose and tbe enlarged end of tbe cylinder.”</p> <p>“5. In a lubricator for elevator guides, a lubricant cup adapted to be secured to tbe elevator, an extensible member secured to the cup and having a wick therein one end of which extends into the cup, and means for causing the other end of the wick to engage the elevator guide rail regardless of the distance between the lubricant cup and the said rail.”</p>

Hearing on an appeal from a decision of the Commissioner of Patents in an interference proceeding. The Court in the opinion stated the facts as follows: This is an appeal from a decision of an Assistant Commissioner of Patents in an interference proceeding, awarding priority of invention to the appellee, George Clements. The invention relates to a vacuum cleaner and will be sufficiently understood by a reading of the two claims here reproduced : “1.

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

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

Hearing on an appeal by the executor of the will of one of two defendants, and also by the other defendant, from a decree of the Supreme Court of the District of Columbia in a suit for an accounting against a firm of real estate agents.

Hearing on an appeal from a decision of the Commissioner of Patents sustaining a motion to dismiss and dismissing an opposition to an application for the registration of a trademark. The Court in the opinion stated the facts as follows: Áppellánt, Hose O’Neill Wilson, filed in the Patent Office a notice of opposition to the application of William Hecht for the registration of the word “Kewpie” as a trademark for children’s suits.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action against a real estate agent to recover alleged secret profits made, and a commission received by the agent in a real estate transaction.

<p>Pleading; Bill of Particulars; Real Estate Agents; Witnesses.</p> <p>1. A plaintiff is limited in his claim and restricted in his proof by his particulars of demand. (Following American Security é Trust Go. v. Kaveney, 39 App. D. C. 223, and Golumbus v. Sheehy, 43 App. D. C. 462.)</p> <p>2. In an action by a real estate agent against his principal to recover commissions on the sale of real estate, where it appears that the sale was made through another agent, and there is no evidence that such other agent was acting for the plaintiff or that the defendant authorized his employment by the plaintiff, the trial court errs in refusing to direct a verdict for the defendant for the reason that the plaintiff was not the procuring cause of the sale.</p> <p>3. The statement of a witness that a firm were his agents in a given transaction is the statement of a mere conclusion of law.</p> <p>Note. — When a real estate broker is considered as the procuring cause of sale is discussed in note in 44 L.R.A. 321.</p>

<p>Sales; Election' of Remedies; Equity.</p> <p>The vender in a conditional sale or instalment contract, by the terms of which the property in the goods sold is reserved by the vender until the purchase price is paid, is not, in ease of default by the vendee, limited to an election either to sue at law for the balance due or to retake the goods, retaining the amount paid as forfeited; but may maintain a bill in equity to subject the goods to the satisfaction of his equitable lien created by the contract, and for a money decree against the vendee for any deficiency if the amount realized from the sale of the goods fails to liquidate the balance due.</p> <p>Note. — The rights of vender in a conditional sale on default hy vendee are set forth in note in 32 L.R.A. 455.</p>

Hearing on an appeal by the defendant from an interlocutory order of-the Supreme Court of the District of Columbia vacating a judgment dismissing an action and reinstating the cause. The Court in the opinion stated the facts as follows: This is an appeal allowed by the court from an interlocutory order vacating the judgment of dismissal of a case and reinstating the same.

Hearing on an appeal by the respondent, the Juvenile Court of the District of Columbia, from a judgment of the Supreme' Court of the District of Columbia in a certiorari proceeding .setting aside-a judgment of the former court. The Court in the opinion stated the facts as follows: This is an appeal by the juvenile court of the District of Columbia from a judgment in the supreme court of the District in a certiorari proceeding setting aside a judgment of the juvenile court.

Hearing on an appeal by tbe respondent, tbe Secretary of tbe Interior, from a judgment of tbe Supreme Court of tbe District of Columbia, gTanting a peremptory writ of mandamus to compel bim to issue a patent for land to a deceased Indian.

Hearing on an appeal, specially allowed, by the defendant from an order of the Supreme Court of the District of Columbia denying a motion to vacate a prior order granting the plaintiff permission to file an action without the payment of costs.

Hearing on an appeal by the caveator from a judgment of the Supreme Court of the District of Columbia dismissing his caveat to a will. The Court in the opinion stated the facts as follows: Appeal from a decree in the supreme court of the District dismissing appellant’s caveat to thp will of Abram P. Far don, whose death occurred in this District on June 13, 1913.

The Court iu the opinion stated the facts as follows: This case is here on writ of error to the police court of the District of Columbia.

Hearing on an appeal by tbe relator from a judgment of tbe Supreme Court of tbe District of Columbia quashing a writ of certiorari. Tbe Court in tbe opinion stated the facts as follows: This is an appeal from a judgment of tbe supreme court of tbe District quashing a writ of certiorari and dismissing the same. The petition of I. Q. II.

Hearing on an appeal by a trustee, specially allowed, from an order of tbe Supreme Court of tbe District of Columbia, denying bis petition tbat be be permitted to curtail a promissory note secured by a deed of trust upon part of tbe trust property., Tbe Court in tbe opinion stated tbe facts as follows: Tbis is a special appeal from a decree in tbe supreme court of tbe District denying tbe petition of tbe appellant, William J. Dante, tbat be be authorized to curtail a deed of…

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

'Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia for possession of leased premises in a landlord and tenant proceeding, entered on a motion for judgment for want of a sufficient affidavit of defense. Tbe Court in tbe opinion stated tbe facts as follows: This suit was originally brought in tbe municipal court of tbe District of Columbia to recover possession of certain real estate.

Hearing on an appeal by tbe defendants from a judgment of tbe Supreme Court of tbe District of Columbia upon a verdict for tbe plaintiffs directed by tbe court, in an action to recover money paid by tbe plaintiffs during infancy.

Hearing on an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia on a verdict directed by tbe court in an action upon a written contract.

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia in an action on a contract, tbe judgment having been entered on motion of tbe plaintiff for want of a sufficient affidavit of defense.

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia, on verdict, in an action upon a written contract. The Court in tbe opinion stated the facts as follows: This appeal is from a judgment for the appellee Gardiner & Dent, a corporation, in tbe supreme court of tbe District for $1,500 on a written contract entered into between the parties. Appellee is a corporation engaged in tbe real estate business.

<p>This case is governed by the decision of the court in the case of Moebs v. Gardiner <& Dent, amte, 112.</p>

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

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia, on verdict, in an action to recover damages for the death of tbe plaintiff’s intestate, alleged to have been caused by tbe defendant’s negligence.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover damages for alleged personal injuries. The Court in the opinion stated the facts as follows: Sarah E. Pierce brought her action against the District of Columbia for damages caused by falling in a manhole in the sidewalk in K street, Northwest, city of Washington, and recovered a judgment for $1,500, from which this appeal is taken.

Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia, sitting as an equity court, in a suit for an accounting and for the enforcement of a settlement agreement between the parties.

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

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover the purchase price of goods sold. The Court in the opinion stated the facts as follows: Appellee, White Oak Coal Company, a Corporation, plaintiff below, sued defendant, Joseph Swift, on the common counts to recover the purchase price of three carloads of coal delivered about December 10, 1911.

Hearing on an appeal by tbe respondent from a decree of the Supreme Court of the District of Columbia, condemning a number of cases of so-called lithia water for misbranding in violation of the pure food act of Congress of June 30, 1906.

<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 by a real estate broker to recover commission on the sale of real estate owned by the defendant.</p>

<p>Contracts; Public Policy; Equity; Criminal Law; Parties in Pari Delicto.</p> <p>1. A promise to dismiss a pending criminal prosecution is against public policy and void, and therefore equity will enjoin the execution of a judgment rendered on a confession of judgment executed by the judgment debtor in consideration of the dismissal of a pending criminal prosecution against her brother.</p> <p>2. The old distinction between felonies and misdemeanors at the common law.is practically impossible of definition. What is denounced as an infamous crime is practically a felony in its consequence, although it may be called a misdemeanor by statute.</p> <p>3. Confinement in the penitentiary is the test of an infamous crime.</p> <p>4. A misdemeanor punishable by confinement in the state’s prison is not within the comprehension of sec. 1024, Purdon’s Digest of the Laws of Pennsylvania, which permits a magistrate in his discretion to discharge an accused indicted for an assault and battery, or other misdemeanor, to the injury and damage of the party complaining, and not charged to have been done with the intent to commit a felony, or not being an infamous crime and for which there also shall be a remedy by action, if the party complaining shall appear and acknowledge to have received satisfaction for such injury and damage.</p> <p>Note. — On what is an infamous crime, see note in 17 L.R.A. 764.</p> <p>On effect of agreement to stifle prosecution upon contract to pay existing indebtedness or the value of property or money feloniously obtained, see note in 16 L.R.A. (N.S.) 971.</p> <p>5. One seeking relief in equity against an agreement executed in consideration of the dismissal of a criminal prosecution cannot be said to be in pari delicto with the party against whom the relief is sought, where the agreement is executory, and is also void as against public policy.</p>

Hearing on an appeal by tbe defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover damages for alleged personal injuries. The Court in the opinion stated the facts as follows: Appeal from a verdict and judgment for the plaintiff, Mack Wadley, appellee here, in the supreme court of the District in an action for personal injuries.

Hearing on an appeal by the plaintiff from a decree of the Supreme Court of the District of Columbia, sitting as a court of equity, dismissing a bill to quiet the title of the plaintiff to the unused portion of a certain land-scrip certificate in the custody of the Secretary of the Interior.

<p>Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia, on verdict, in an action on promissory notes against an indorser.</p> <p>Tbe Court in tbe opinion stated tbe facts as follows:</p> <p>The Higgin Manufacturing Company sued Galen E. Green as indorser of certain notes given by bis son, Cuvier Green, amounting to seven hundred and fifty-six dollars and eighteen cents ($756.18), with interest from February 1, 1909, which notes had been presented for payment, protested, and notice given. Tbe declaration set out the notes, notice, and protest, and also contained the common money counts.</p> <p>The defendant pleaded limitations, nonassumpsit, and that the indorsement was procured under duress by threats of a criminal prosecution of his son, Cuvier Green, for embezzlement, and to stifle the prosecution therefor.</p> <p>Plaintiff’s evidence tended to show that Cuvier Green was sales agent for plaintiff in Kansas City, Missouri, and became indebted to plaintiff in about $956.18. Cuvier Green wrote plaintiff that„he was willing to pay $100 in cash and give notes for $100 each,- payable in six months, and saying that he had written to his’ father, Galen E. Green, to indorse the notes, his father having in his hands certain property of Cuvier Green. The notes were executed by Cuvier Green, mailed to Galen E. Green, who indorsed and returned them, and they were mailed to plaintiff. The first note was paid. Galen E. Green wrote that he had property in his hands left by Cuvier Green’s mother, and that his part would be ample to pay the debt.</p> <p>Plaintiff’s witness testified that there had been no threat to prosecute Cuvier Green criminally; .the notes were presented to the maker, and notice of nonpayment given to Galen E. Green.</p> <p>The notes were read in evidence.</p> <p>The certificate of the notary public, showing presentment, demand, and protest, was offered, but excluded by the court because a certificate of a notary public outside of the District of Columbia was no proof of the facts. See D. C. Code, sec. 1422 [31 Stat. at L. 1407, chap. 854].</p> <p>Plaintiff then offe'red evidence tending to show waiver of notice and promise to pay by the indorser. This was objected to on the ground that as there was no averment in the special counts as to notice, they could not be relied on to support a verdict against an indorser. The court overruled the objection, and the defendant excepted.</p> <p>Defendant offered Cuvier Green as a witness and asked him the following question, “At the time of writing the letter inclosing the notes to your father for indorsement, what, if any, knowledge ,had you concerning the intention of the company towards you, that knowledge being derived from any statement made to you by any officer of the company concerning criminal prosecution?” Plaintiff objected.</p> <p>The court sustained the obj ection and the defendant excepted.</p> <p>lie was asked by plaintiffs counsel, “What motive induced you to execute those notes ?” He replied, “Some letters that I had received on several occasions from them 'that gave me to understand that if I didn’t they would prosecute.”</p> <p>At the close of the testimony defendant prayed the court to instruct the jury that there was not sufficient evidence in the case to justify a verdict in favor of the plaintiff and their verdict should be for the defendant.</p> <p>This was refused and an exception taken.</p> <p>Thereupon the court charged the jury as follows:</p> <p>“If the jury find from a fair balance of the evidence that the defendant, Galen E. Green, with full knowledge that ho was not liable, after maturity, on the notes as indorser, by reason of plaintiff’s failure to comply with the statutory provisions, acknowledged, either in any letter offered in evidence or verbally, to the plaintiff or its agents a continued liability, or promised to pay said notes, then the jury are instructed that their verdict should be in favor of the plaintiff.”</p> <p>Exception was taken to this by the defendant on the ground that there being no proof to support the averment of the special counts as to notice, those counts would not support a verdict, and that because the common counts cannot be relied on to support a verdict against an indorser the instruction was erroneous.</p> <p>The jury found for the plaintiff for the amount of the notes.</p>

<p>Hearing oil an appeal by tbe plaintiff from a decree of tbe Supreme Court of tbe District of Columbia, sitting as' an equity court, dismissing- a bill for an injunction.</p> <p>Tbe Court in tbe opinion stated tbe facts as follows:</p> <p>Appellant, Harry Friedling, plaintiff below, instituted a suit against appellee Louis Freedman, otherwise known as Louis Fridman in tbe supreme court of tbe District of Columbia to recover damages for tbe alienation of tbe affections of bis wife. Tbe suit is still pending, awaiting trial. Plaintiff, thereafter, filed tbe present bill in equity to enjoin defendant from disposing of bis real estate to defeat recovery on tbe prospective judgment. It is averred in tbe bill as follows: “Plaintiff is informed and believes that tbe said defendant is justly apprehensive that in said action at law a large recovery of damages may be bad, and is also, as plaintiff is informed and believes, anxious to convey away or otherwise secrete and dispose of bis aforesaid real estate in order to defeat plaintiff’s recovery in said action.” A motion to dismiss tbe bill was sustained, and from tbe decree of dismissal this appeal was taken.</p>

Hearing on an appeal from a decision of the Commissioner of Patents, granting an application for the cancelation of a registered trademark. The Court in the opinion stated the facts as follows: This is an appeal [by the Standard Brewery Company of Baltimore City] from a final decision of the Patent Office sustaining appellee’s application for the cancelation of appellant’s registered trademark “Bismarlc” for beer.

Hearing on an appeal from a decisiqn of the Commissioner of Patents in an interference proceeding. The Court in the opinion- stated the facts as follows: This is an interference proceeding relating to a calculating machine, the issue of which is contained in the following- three counts: -1.

<p>Patents; Interference; Reduction to Practice.</p> <p>In an interference involving an improvement in typewriters, and in which the issues called for a combination with the type carriers and the stops carried thereby, of key operated parts for moving the stops, a decision of the Commissioner of Patents was affirmed which, in finding that the senior party had reduced to practice before the filing date of his adversary, held that the successful operation of the part of the machine covered by the issues was included in and would be inferred from the reduction to practice of the actuating devices set forth in the issue of a prior interference in which the senior party was awarded priority. (Citing Hopkins v. Peters, 41 App. D. C. 302.)</p>

<p>Trademarks; Eobmer Adjudications.</p> <p>A decision of the Patent Office, not appealed from, in a trademark interference case, that neither of the parties is entitled to registration, is final and conclusive of every question that was or might have been presented and determined in the case (citing Blaehforel v. Wilder, 28 App. D. C. 535; United States esc rel. Newcomb Motor Oo. v. Moore, 30 App. D. C. 464, and lie Herbst, 32 App. D. C. 269) ; and a party to that proceeding cannot obtain registration on another application on the ground that this court in another case subsequently decided found that the decision in that case was erroneous.</p> <p>Note. — On effect in collateral proceeding of decision of patent office on issue of interference, see note in 24 L.R.A. (N.S.) 948.</p>

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

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

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

Motion to dismiss an appeal from a decision of the Commissioner of Patents in an interference proceeding. The facts are stated in the opinion.

Hearing on an appeal by the defendant from a judgment for the plaintiff, entered for want of a sufficient affidavit of defense in an action on a contract. The Court in the opinion stated the facts as follows: This appeal involves an order of the supreme court of the District striking out appellant’s plea in abatement, in which it is alleged that service of summons in the action was procured to be served upon him within this jurisdiction by trick, device, and fraud.

Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia, sitting as an equity court, establishing a resulting trust in certain real estate in favor of the plaintiff. The Court in the opinion stated the facts as follows: Appellee, Antonio Ciffo, filed a bill in equity praying that a resulting trust be declared' in his favor against appellant, Marie Ciffo, in certain real estate situate in this District.

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 for the alleged negligent killing of the plaintiff’s intestate.

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

<p>Patents; Interference; Notaries Public; Oaths; Beduction to Practice; Abuse of Discretion.</p> <p>1. A decision of the Commissioner of Patents in an interference proceeding, granting priority to the senior party, after a refusal to dissolve the interference on motion of the junior party, upon the ground that the senior party's application was void for the reason that the oath accompanying it was taken before a notary public in Illinois who was an attorney in the case, — was affirmed, notwithstanding sec. 558 D. C. Code (34 Stat. at L. 622, chap. 3616), providing that no notary shall be authorized to administer oaths in any matter in which he is employed as an attorney, or in which he may be in any way interested, before any of the Departments, and notwithstanding six years elapsed between the filing of the senior party’s application and his supplying a valid oath to said application, where it appeared that the Patent Office when the application was filed was acting in accordance with an opinion of the Assistant Attorney General for the Interior Department, who had held that such provision of the Code only applied to attorneys of the District of Columbia; that thereafter this court and the Attorney General held otherwise; whereupon the senior party was required to supply a valid oath, which he did promptly. Under such circumstances the senior party’s date of reduction to practice dates not from the date of the filing of the valid oath, but from the date of the original filing of his application. (Citing Hall’s Safe Go. v. Herring-Hall-Marvin Safe Go. 31 App. D. C. 498.)</p> <p>2. This court will not interfere with or attempt to control the discretion of the Commissioner of Patents when exercised in matters of practice, unless abuse thereof is made clearly to appear.</p>

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

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

<p>Patents; Interference; Diligence.</p> <p>Where in an interference involving the invention, in a party-line telephone system, of means for selectively ringing any one of the subscribers upon the line after the calling subscriber’s line has been automatically connected therewith, it appeared that the junior party actually reduced to practice the broad invention called for by the first two counts of the issue, which counts dominated the invention called for by the other counts, and prepared, but did not file, an application disclosing all of the counts of the issue until about four months before the senior party filed his application, it was held, in awarding priority to the junior party on all of the counts of the issue, that the obvious reason for his delay in filing his application was in order that he might test his invention, and that he was not lacking in diligence.</p>

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

The Court in the opinion stated the facts as follows: This is a review, on writ of error, of the judgment of the police court of the District of Columbia sustaining a demurrer to an information charging “that Nathaniel Wilson, President of the Metropolitan Club, * * * at No. 1100 H Street, Northwest, Washington, D. C., did conduct a barroom and sell intoxicating liquor under tbe supposed authority of a license from tbe excise board of tbe District of Columbia, issued on…

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia, on verdict, in an action to recover damages, for alleged personal injuries. Tbe Court in the opinion stated tbe facts as follows: This is an appéal from a judgment rendered in favor of William E. Crutchley against the National Fire Proofing Company for injuries received while in tbe defendant’s employ.

Hearing on an appeal from a decree of tbe Supreme Court of tbe District of Columbia, dismissing a bill in equity for an injunction. Tbe Court in tbe opinion stated tbe facts as follows: Tbe plaintiff, Josepbus Wells, filed tbis bill against Daniel C. Eoper as Eirst Assistant Postmaster General of tbe United States to obtain an injunction against a threatened breach of contract between plaintiff and the United States for certain postofiice equipments.

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 tbe amount of a judgment paid by tbe plaintiff.

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

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

Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia, granting the relief prayed for in a suit to establish a debt and to declare an absolute deed to be a chattel mortgage.

Hearing on an appeal by tbe petitioner from a judgment of tbe Supreme Court of tbe District of Columbia, dismissing a petition for tbe writ of mandamus to compel tbe Secretary of the Interior to issue the petitioner a patent for public land. The facts are stated in the opinion.

Hearing on an appeal by the defendant from a judgment of. the Supreme Court of the District of Columbia, on verdict, in an action to recover damages for the death of the plaintiff’s intestate alleged to have been caused by the wrongful act of the defendant. The facts are stated in the opinion.

Hearing on an appeal by tbe plaintiff from a judgment of tbe Supreme Court of the District of Columbia sustaining a demurrer to the declaration in an action to recover damages for injury to an automobile.

Hearing on appeal by the defendants from a decree of the Supreme Court of the District of Columbia, directing the specific performance of a contract for the exchange of two parcels of real estate.

Hearing oh an appeal by the plaintiff from a decree of the Supreme Court of the District of Columbia dismissing a bill of complaint against the Commissioner of Patents to enjoin him from issuing a patent to a third person.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover damages for alleged personal injuries. The facts are stated in the opinion.

<p>Equity; Injunction.</p> <p>A court of equity will not, at tbe instance of tbe defendant in an action at law, enjoin the execution of a judgment against him in that action, from which judgment he took an appeal, which he after-wards abandoned, on the ground that error was committed in the exclusion of evidence on the trial of such action.</p> <p>Note. — As to general equitable jurisdiction to enjoin judgments, see note in 32 L.E.A. 321.</p>

<p>Equity; Costs; Appealable Oeders.</p> <p>1. Where a court of equity, having jurisdiction over the subject-matter of a suit and the parties, dismisses the bill of complaint because the plaintiff has failed to make out a case calling for equitable relief, it has jurisdiction to award costs against the unsuccessful party.</p> <p>2. The action of the lower court in directing by its order the retaxation of costs on motion of the unsuccessful party, to the extent of disallowing mileage taxed in favor of the two defendants, and overruling the motion in all other particulars, will not be reviewed by this court on an appeal from such order, because the matter of costs was within the sound discretion of the court, and also because the proper course of the unsuccessful party to obtain a review by the lower court of the action of the clerk in taxing costs, and to secure a retaxation thereof, was by a rule to show cause, specifying with particularity the objections to the manner in which the costs had been taxed. (Eoliowing Washington & G. R. Co. v. American Gan- Co. 5 App. D. C. 524, and Williams v. Getz, 17 App. D. C. 388.)</p>

Hearing on an appeal by tbe defendant from a judgment of the Supreme Court of the District of Columbia on verdict in an action to recover damages for an alleged breach of a promise to marry. The Court in the opinion stated the facts as follows: Appeal from a judgment after verdict for the plaintiff, John S. Kinney, appellee here, in the sum of $30,000 in an action for breach of promise. The declaration is in two counts.

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia, on verdict, in an action to recover damages for personal injuries. Tbe Court in tbe opinion stated the facts as follows: This action was brought by tbe plaintiff, William H. Plummer, against tbe West Disinfecting Company for damages, with a declaration in six counts. These were reduced to two counts by an amendment.

<p>Hearing on an appeal from a decree of tbe Supreme Court of the District of Columbia ratifying and confirming tbe report of tbe auditor in a suit for tbe foreclosure of a deed of trust.</p> <p>The facts are stated in the opinion. •</p>

<p>Trusts and Trustees; Contracts; Equity; Discovery and Accounting</p> <p>1. The relation of a sales agent of automobiles and accessories to the manufacturer of them is of a fiduciary character, where the agent receives the automobiles and accessories from the manufacturer under a contract whereby the title to them remains in the manufacturer, and agrees to account for the net proceeds of all sales made by him.</p> <p>2. Equity has jurisdiction to entertain a bill for discovery and accounting by the assignee of a manufacturer of automobiles against a dealer who received from the manufacturer automobiles and accessories under a contract whereby the title to the cars and accessories remained in the manufacturer, and the dealer agreed to account for the net proceeds of sale, where the defendant had notice of and acquiesced in the assignment, secreted or disposed of, and refused to disclose the whereabouts of, ears shipped to him, and refused to make any account for cars and accessories sold by him, and where the complainant has no means, except through discovery by the defendant, of ascertaining the whereabouts of the automobiles, or how many were sold, or what amount of the proceeds of sale the defendant received. (Citing George V. Ford, 36 App. D. C. 315.)</p> <p>Note. — On automobile distribution contracts, see note in L.R.A.1915B, 109.</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 of replevin. The Court in the opirion stated the facts as follows: This is an action of replevin begun by Gerber & Company against T. Oliver Probey to recover the possession of seventeen automobiles valued at $17,000. An undertaking having been filed by the plaintiff, the marshal executed the writ by seizing the described property.

Hearing on an appeal (specially allowed) by the defendants from an order of the Supreme Court of the District of Columbia sitting as an equity court, restraining them pendente lite from selling in Maryland, under a mortgage executed in that State, the real estate covered by the mortgage. The facts are stated in the opinion.

<p>Trusts and Trustees; Equity; Restraining Orders; Deeds of Trusts.</p> <p>L The same degree of good faith is required of trustees under a deed of trust of real estate to secure a debt, as is required of other fiduciaries.</p> <p>2. Where trustees under a deed of trust were restrained pendente lite from taking possession of the real estate sold by them under the deed of trust, on charges by the owner in possession that the purchaser at the sale had bought the property in the interest of the trustees, and that the property had been sold for less than one half of its real value, and the trustees failed to deny that they were interested in the sale, and made only an equivocal denial of the charge as to the inadequacy of the sale price, this court on an appeal by them affirmed the restraining order.</p>

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of the District of Columbia for want of an affidavit of defense in an action on a promissory note. Tbe Court in tbe opinion stated tbe facts as follows: Tbis is an appeal from judgment rendered on motion under tbe 73d rule of tbe supreme court of tbe District of Columbia.

Hearing on an appeal by the plaintiff from an order and judgment of the Supreme Court of the District of Columbia granting motions by the defendants in an action to recover damages for personal injuries, vacating the returns of the marshal of the process and summons issued on the filing of the declaration to compel the appearance of the defendants, and dismissing the action. The facts are stated in the opinion.

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

<p>Patents; Patentability; Seasonable Doubt.</p> <p>While a patent may not be withheld because of delay authorized by statute, an applicant who has prolonged the prosecution of his application for a period of years so great as to indicate a design to delay final action upon it, knowing that the device covered by the application has gone into public use, is not entitled to demand more than is strictly due him, and under such circumstances the Commissioner of Patents is justified in reversing the ordinary rule by resolving any reasonable doubt against the applicant as to the patentability of his invention.</p>

<p>Patents ; Res Judicata.</p> <p>The Commissioner of Patenta properly rejects an application for a patent by the assignee of a manufacturer, where, in a prior interference to which the inventor was a party and the same invention was involved, priority was awarded his adversary, and another interference, subsequent to the first and to which the assignee was a party, was dissolved on the ground that the decision in the prior interference was res judicata in favor of the successful party in the first interference. (Citing Toumsend v. Copeland, 37 App. D. C. 325; and New Depa/rtu/re Mfg. Co. v. Robinson, 39 App. D. C. 504.)</p>

<p>Patents; Interference; Burden of Proof; Reduction to Practice.</p> <p>1. Unanimous decision by the experts of the Patent Office that one of the parties to an interference lias no right to make the claims of the issue will be accepted by this court as conclusive, where there is no palpable error. (Citing Kitbourn v. Eirner, 29 App. D. C. 54, and Lindmarle v. Eodgkimson, 31 App. D. C. 612.)</p> <p>2. The burden is upon the junior party to an interference to establish a date of conception prior to that of his adversary, and either reduction to practice, or diligence in reducing to practice, prior to the filing date of his adversary.</p> <p>3. In an interference involving the invention of an improved roofing comprising a sheet of fibrous material impregnated and coated with a waterproof material of varying thickness in various fields, testimony showing that one of the parties completed a piece of roofing by hand, and nailed it upon a fence near his office, where it could be seen by the public, and where it remained for more than a year, was held insufficient to show reduction to practice.</p> <p>4. Ordinarily the unanimous decisions of the Patent Office tribunals on questions of fact will be accepted by this court, and the party attacking them must make out a plain case of error.</p> <p>5. Reduction to practice is shown by one of the parties to an interference who conceived the invention and filed his application prior to the conception and filing date of his adversary, where the invention is an improved roofing comprising a sheet of fibrous material impregnated and coated with a waterproof material varied in thickness in various fields, and where his evidence is to the effect that he disclosed his conception to several of his skilled employees, set them to work carrying it out; that they used two or three different kinds of paint, one of them using an asphalt base paint which amalgamated with the paint on the felt paper that was used, arranged the same in a design to imitate shingles; that the roofing so made was put upon a roof and was used for experiments, and remained there nearly a year demonstrating its lasting qualities.</p>

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

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

<p>Patents; Interference; Reduction to Practice.</p> <p>1. In an interference involving the invention of an electric distribution system, priority was awarded the junior party, where it appeared that an apparatus constructed by him which embraced the entire system of distribution involved was given a complete and satisfactory test, and so reduced to practice prior to the filing date of the senior party.</p> <p>2. Where in an interference involving the invention of an electric distribution system, none of the counts referred to a car-lighting system, but the junior party constructed and tested an apparatus designed for use in the service of ca.r lighting, and some question was made as to the sufficiency of the test respecting the ear-lighting feature on account of the lack of an automatic pole changer, which became necessary only in case the generator should be reversed when needed by a reverse operation of the car, it was held that it was not necessary, in order to test a current and voltage regulator, that the generator be reversed, although conditions in practice might arise where a reversal would occur often enough to make this important, and that the standard of the test required to show reduction to practice should not be greater than the counts of the interference called for.</p>

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

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

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

<p>Patents; Interference.</p> <p>This case is governed by the decision of the Court in Coe v. Brown, ante, 455.</p>

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

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

<p>Patents; Interference; Concealment; Invention.</p> <p>In an interference involving an improvement in railway torpedoes, priority of invention was awarded the senior party on a review of the evidence which showed that he, alone and without capital, had sueessfully placed liis invention on the market and had applied for his patent within a few months after conception, while the junior party, who had conceived the invention and made a device embodying it several years before, had suppressed and concealed it for five years for business reasons, although backed by a company having ample capital and engaged in the business of manufacturing and selling railway torpedoes, and was led to file his application only by what the senior party had done. (Following Mason v. Hepburn, 13 App. D. C. 86; Dieelcmarm v. Bruñe, 37 App. D. C. 399; and Broten v. Campbell, 41 App. D. C. 499.)</p>

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

Hearing on cross appeals from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover damages for the sinking of the surface of a public street caused by the construction of a tunnel thereunder.

Hearing on an appeal by the plaintiff from a judgment of tbe Supreme Court of the District of Columbia -which reversed a judgment of the Municipal Court in a landlord and tenant proceeding.

<p>Trademarks; Prior Use.</p> <p>1. The owner of a trademark will not be hampered or embarrassed in the legitimate extension of the business by the registration of the mark to another. (Following Re Braadlcmd, 37 App. D. C. 602; 2V. Wolf & Sons v. Lord & Taylor, 41 App. D. C. 514; Simplex Electric Heating Co. y. Gold Gar Heating £ Lighting Co. 43 App. D. C. 28; Fishbech Soap Co. v. Kleeno Mfg. Co. ante, 6.)</p> <p>2. Registration of the word “Nokoro,” as a trademark for electrical resistances, electrical apparatus, etc., should be denied upon the opposition of one who has made prior use of the word “No-Co-Ro,” as a trademark in connection with sheet metal, which is adapted to be used for electrical resistances.</p>

<p>Trademarks; Prior Use.</p> <p>In a trademark interference involving the use of the word “Pathfinder,” as applied to coffee, a decision of the Commissioner of Patents was affirmed, where the evidence showed that the applicant had adopted the word four years before the other party had registered it, and had continually used it since in intrastate and interstate commerce.</p>

Hearing on cross appeals from a decision of the Commissioner of Patents granting priority to one of the parties on certain of the counts, and to the other party on other counts of the issue. The facts are stated in the opinion.

<p>Patents; Interference; Burden of Proof; Reduction to Practice; Diligence.</p> <p>1. The fact that one of the parties to an interference has a patent gives him no advantage in an interference over the other party, where the patent was issued while the application of the other party was pending; but where the latter was the last to file, the burden of proof is upon him.</p> <p>2. In an interference proceeding the making and operation in a foreign Country by one of the parties, of a device embodying the invention of. the issue, which he conceived in this country, will not constitute an actual reduction to practice. (Following DeKwndo v. Armstrong, 37 App. D. C. 314.)</p> <p>3. Diligence in a particular case depends upon special facts and circumstances attending it.</p> <p>4. In an interference involving improvement in automatic telephone apparatus, lack of diligence is not shown on the part of the senior party (whose adversary conceived, filed and reduced to practice in December, 1906) where the evidence is to the effect that the senior party conceived and disclosed the invention in this country in 1904, went to France in the spring of 1905 to carry out a contract between his employer and the French government, and there established a shop and manufactured the device and put it into successful operation in connection with a French telephone system; returned to the United States early in November, 1905, and on the 18th of that month wrote to a patent attorney, who had been the attorney for a company which held the right to his inventions, to take up the matter of applying for a patent; found that this attorney had been superseded by another, with whom he took up the matter in January, 1906; and where it appears that from that time until April, 1906, when the application was filed, the attorney was working on it and ■ other applications of the same party; and there is nothing to show that he concealed the invention or intended to abandon it.</p>

<p>Hearing on an appeal by the defendant from a judgment of conviction of the Supreme Court of the District of Columbia, on an indictment for an assault with- an intent to commit, rape.</p> <p>The facts are stated in the opinion.</p>

<p>Hearing on an appeal by the plaintiffs from a decree of the Supreme Court of the District of Columbia dismissing a bill in equity for an injunction.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from a decree in the supreme court of the District dismissing appellants’ bill. We here reproduce the carefully prepared opinion of the learned trial justice:</p> <p>“This is a motion to dismiss the second amended bill on various grounds, but the only one necessary to be considered is that it does not state facts sufficient to constitute a cause of action.</p> <p>“The plaintiffs sue on behalf of themselves and other members of the Loyal Orange Institution of the United States of America, a fraternal order, the government of which it is alleged is by its constitution and general laws vested in a supreme grand lodge and certain other lodges, which grand lodge is the highest body of .such order, and ‘its highest governing judicatory in the United States,’ and that the order ‘holds allegiance tq the Grand Orange Council of the World.’ It is claimed that the defendant, who was formerly supreme grand secretary, was expelled from the order, and that he was succeeded in such office by the plaintiff Lemmon; that the defendant ‘has allied himself with a rebellious faction of said supreme grand lodge composed of members who have been suspended and expelled from said order, which faction has endeavored to institute itself into a supreme grand lodge, but that such action has not received the recognition of any of the governing bodies of said order, and has no standing, rights, or authority under the constitution or laws of the order, nothwithstanding the fact that said action is without authority or right, the officers of said spurious lodge composed of said rebellious faction wrongfully proclaim said spurious lodge to be a supreme grand lodge much to the prejudice and injury of the lodges and members of the aforesaid order.’ Th,e dispute then is in effect between two sets of persons claiming to be the regular and only® creditable representatives of this order.</p> <p>“It must be assumed that neither order is engaged in business for a profit. Such being the case, the principles upon which a court of equity acts or refuses to act have been established for this District,' and a statement of them will be found in Most Worshipful Grand Lodge, F. & A. M. v. Grimshaw, 34 App. D. C. 383, in which case the court said at page 385: ‘The principle upon which courts of equity proceed in restraining the simulation of names is not that there is property acquired by one party in the name, but to prevent fraud and deception in the dealing with the party charged with the simulation of a name used by another in a similar business or manufacture. Original La Tosca Social Club v. La Tosca Social Club, 23 App. D.-C. 96, 104. Courts of equity do not exercise jurisdiction to inquire into and adjudicate the right of different associations for charitable or religious objects to hold themselves out to be the regular and only accredited representatives of some particular order or religious system. There must be some pecuniary injury resulting from the use of a name that may have been adopted by another, to warrant inquiry and justify relief. The injury must not be fanciful or sentimental, but real. It must be substantial and such as a court of equity, upon principles of justice, will interpose to prevent Original La Tosca Social Club v. La Tosca Social Club, supra, p. 105.’ There is no allegation in the bill to the'effect that any person has dealt with the defendant and his faction under the mistaken assumption that he was dealing with the plaintiff's and their faction, nor is there any allegation of an actual pecuniary loss to the plaintiff’s faction unless it is to be found in the following allegation in the bill; namely, ‘that the said defendant, although not a member of said institution, is pretending to be and is assuming without authority to act as the supreme grand secretary of the Loyal Orange Institution of the United States of America, and is proclaiming himself as such, and is endeavoring to usurp the powers and authority of said office without authority or right, and has been and now is receiving moneys belonging to said institution which should be paid to the aforesaid George T. Lemmon as the proper incumbent of aforesaid office and the proper custodian of said funds.’ In view of the allegations in the bill to the effect that the defendant is a member of a spurious supreme grand lodge, the statements so quoted cannot be taken as the equivalent of an allegation that he, under a pretense that he is the supreme grand secretary of the lodge under the control of the plaintiff’s faction, is receiving money, but must be construed to mean that he is receiving money as supreme grand secretary of the so-called spurious lodge. If the pleader meant otherwise under the circumstances he should have stated so definitely, and to repeat, as it is not claimed that any of those paying the money believe that they are paying it into the lodge controlled by the plaintiff’s faction, the allegations in regard to such receipt do not show a pecuniary injury to the plaintiffs and those associated with them in the sense intended by the court of appeals in Most Worshipful Grand Lodge, F. & A. M. v. Grimshaw, supra.</p> <p>“Another allegation in the bill is that the plaintiff Lemmon as supreme grand secretary is ‘entitled to receive on behalf of said orders all records, books, and other property in the possession of the defendant belonging to said order/ but that the defendant has refused to turn the same over although a demand for them has been made. Assuming that such allegation sufficiently states that the defendant has records and books in his possession, it is not a sufficient ground for equitable relief. From all that appear the books and records may be of no particular value; the plaintiff and his associates may have copies of them and they may be of practically no importance. The absence of any description of the books is noticeable as is also the vagueness of the words ‘other property.’</p> <p>“Another paragraph of the bill is in part as follows: ‘That said order of the Loyal Orange Institution of the United States of America provides and maintains at Hatboro, Pennsylvania, a permanent home known as the Orange Home for the care and support of its indigent and needy members, orphan children of those who have been members, and others * * *; that the management of the said home is vested in a board of fifteen directors; that the first board of directors was appointed by the plaintiff Lemmon when he was supreme grand master, and since that time the directors of said home have been elected by the supreme grand lodge of which the plaintiffs are officers; that said home since its institution has been controlled and governed by the aforesaid directors and no others; that said home is supported and maintained by assessments and contributions made by the lodges and individual members of the order; that by the constitution and laws of said order the said assessments and contributions are to be paid to the supreme grand secretary of the order.’ The bill then states that the defendant has received assessments and contributions tO' said home which has failed to turn over to ‘the proper authorities of said order,’ and is now withholding or causing such contributions to be withheld so that they are not being received by the home; and, further, that the aforesaid order levies an assessment against each member thereof of $1 per annum for the support of said home, but that the home or said order has not received anything from the alleged spurious grand lodge, nor from the defendant, nor from anyone associated with him, towards its maintenance and support since August 25, 1914. The plaintiff demands discovery of the amount so received, alleging that they are entitled on behalf of themselves and other members of the order to an accounting.</p> <p>“These allegations, if they amount to anything, are equivalent ' to a statement that the defendant is trustee, not for the plaintiffs nor tbe lodge of which they claim to be members, but for the Orange Home. There is no statement in the bill from which it can be inferred that the home belongs to the supreme grand lodge, but it appears rather that it is under the management of a board of directors, who, so far as the bill shows, may or may not be members of any supreme grand lodge; but, however that may be, so far as the bill shows the Orange Home is a separate and distinct enterprise, and if anyone is entitled to demand of the defendant the payment of money alleged to have been collected by him it is the board of directors who are so entitled.</p> <p>“The bill alleges that the grand lodge has a constitution and by-laws, a copy of which, however, was not filed with the bill, and so far as the material allegations of the bill are concerned, with one possible exception, the pleader has contented himself with stating his conclusions as to the powers of various officials and as to the legality of their election ; likewise, as to the legality of the action leading to the alleged expulsion of the defendant from the supreme grand lodge. It is stated that the defendant was at one time supreme grand secretary, but the length of the term for which he was elected is not stated. It may be that such term extended beyond the date of the election of his alleged successor; consequently, the bill should state verbatim, or in substance, the provisions of the constitution and by-laws that control not only the question of his removal, but the election of a successor.</p> <p>“It would prolong this decision unnecessarily to point out numerous other respects in which the allegations in the bill are insufficient as statements of fact upon which to base relief, and it is not necessary to pass upon the other grounds of the motion to dismiss.”</p> <p>(Signed) Walter I. McGoy, Justice.</p>

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action of assumpsit. The Court in the opinion stated the facts as follows: This is an appeal from a judgment entered upon a verdict in favor of James O. Gorrell, the plaintiff below, appellee here, against Samuel A. Drury, the defendant below, as executor of the estate of Amelia J. Lyle, deceased, appellant here, in an action of general assumpsit.

Hearing on an appeal by tbe defendants from a decree of the Supreme Court of the District of Columbia, enjoining the Excise Board from granting liquor licenses to its co-defendants. The facts are stated in the opinion.

Motion by tbe appellant for an order compelling tbe appellee to pay appellant alimony pending tbe appeal, and also a sum sufficient to pay counsel fee and cost of printing brief in tbis court.

<p>Hearing on an appeal by t-be plaintiff from a decree of the Supreme Court of tbe District of Columbia, sitting as an equity court, in a suit for an accounting and for a decree compelling the defendant trustees under a will to pay interest on a legacy from the date of the death of the testator.</p> <p>The facts are stated in the opinion.</p>

Hearing on appeals by two of three defendants from a decree of the Supreme Court of the District of Columbia granting the relief prayed for in a bill in the nature of a bill of inter-pleader and restraining the prosecution in an action at law.

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

<p>Equity; Decebes and Orders; Husband and Wife; Divorce; Assignments.</p> <p>1. A judgment, though interlocutory with relation to the final disposition of the suit, may be treated as final, and as possessing all of the elements of a final judgment, if it settles the dispute of the parties as to the particular matters in issue in the interlocutory proceedings, and leaves nothing further for consideration.</p> <p>2. An order in a divorce suit, made before a final decree, awarding the wife as against the husband a specific sum of money for alimony pendente Ute in arrears, is a final, and not an interlocutory order, even though the final decree dismisses the wife’s bill and grants the husband an absolute divorce on his cross bill; and the husband is liable on such order after the passage of the final decree. (Following Lesh v. Lesh, 21 App. D. C. 475; distinguishing Walter v. Walter, 15 App. D. C. 333, and construing secs. 975 and 1104 D. C. Code, 31 Stat. at L. 1346, 1362, chap. 854.) Chief Justice Shepard dissenting.</p> <p>3. Where in a divorce suit, .before final decree, an order is made awarding the wife as against the husband a specific sum on account of the fee of the examiner in chancery, after the making of which order the examiner files the testimony, and thereafter a final decree is passed dismissing the wife’s bill, and granting the husband an absolute divorce on his cross bill, and awarding the husband costs of suit as against the co-respondent named in the cross bill, the order is a final adjudication of the husband’s liability for the examiner’s fee, with the fight on the part of the husband under the final decree to recover over against the co-respondent. (Chief Justice Shepard dissenting.)</p> <p>4. An order in a divorce suit, awarding the wife as against the husband a specific sum for alimony pendente lite in arrears, is assignable by her, although an order directing the payment of such alimony in the future would not be. (Citing D. C. Code, sec. 431, 31 Stat. at L. 1256, chap. 854.)</p>

<p>Equity; Deeds; Mortgages; Accounting; Usury.</p> <p>1. Where a conveyance absolute on its face is made merely for the purpose of securing a loan or contemporaneous debt, a court of equity will disregard the mere form of the instrument, and will look to the intent of the parties. (Following Brown v. Sight, 33 App. D. C. 260.)</p> <p>2. Where the owner of a lot, after selling it on small monthly payments, makes a loan to the purchaser for the purpose of building a house on the lot, and thereafter advances an additional sum in order to complete the house, taking an absolute deed from the purchaser and giving him a rental agreement, and, two days after the last ■ transaction, credits on a passbook which he had issued to the purchaser a payment on account of the original purchase price of the lot, and thereafter delivers a statement of account to the purchaser in which he charges the latter with the last amount advanced as a loan and shows the balance due on the lot and on both loans, the deed will be held to be a mortgage; and in case of a sale of the property by the grantee he will be required to account to the grantor for the proceeds of salé; and on the accounting the grantee will not be permitted to dispute the correctness of such statement of account.</p> <p>3. Where the seller of a suburban lot advances to the purchaser $400 for the purpose of building a house on the lot, and takes from him a promissory note for $475, claiming that the difference of $75 was for the expense of making the loan, superintending the building, and seeing that proper materials were furnished and the house properly constructed, for the protection of the loan, it was held that on an accounting between the parties the $75 should be taken as usury charged by the seller.</p> <p>Note. — On parol evidence that a written instrument which on its face imports a complete transfer of a legal or equitable estate or interest in property was intended to operate as a mortgage, see note in L.R.A.1916B, 18.</p>