Volume 45 — Appeals, District of Columbia

Hearing on an appeal from a judgment of the Supreme Court of the District of Columbia overruling a demurrer to the return of a writ of habeas corpus, and denying a motion to discharge the petitioner.

<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 sustaining an opposition to the registration of a trademark.</p> <p>. The facts are stated in the opinion.</p>

<p>Patents; Interference; Diligence; Originality; Patentability.</p> <p>1. In an interference, in which one of the parties was shown to have conceived. and disclosed the invention about two months before the filing date of his adversary, which constituted reduction to practice of certain of the counts, it was held, affirming the decision of the Commissioner, on a cpnsideration of the evidence, that as to these counts the former party was lacking in diligence, and that therefore the latter was entitled to an award of priority.</p> <p>2. Where one of the counts in an interference called for “a piling element comprising a pile composed of concrete having a grouting groove in one face, and having embedded in one face a metallic strain-resisting member to engage an adjacent element,” and one of the parties, who was unskilled in the art, testified that the other party, who was skilled in the art, had in an interview suggested a further improvement whereby a larger opening in the concrete should be left for the insertion of a jet pipe to facilitate grouting, and had also admitted in a letter that he was working up the invention in conjunction with the other party, it was held that the latter party, and not the former, was the originator of the invention, and entitled to an award of priority.</p> <p>3. In an interference, this court must assume that each count is patentably different from every other count.</p>

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

<p>Hearing on an appeal by the defendant from a judgment of conviction of the Supreme Court of the District of Columbia in a prosecution for embezzlement.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from a judgment in the supreme court of the District, convicting defendant, Creed M. Fulton, of embezzlement, the sentence of the court being three years in the penitentiary.</p> <p>The indictment was in four counts, the first and third charging embezzlement, the second and fourth, which were abandoned, larceny after trust. In the first count defendant was charged, with the embezzlement of $659.21 of the money and property of the prosecuting witness, Frederick M. Smith, which had come into the possession and under the care of defendant as agent, attorney, clerk, and servant of Smith. The third count charged the embezzlement of the same sum of money of the property of said Smith and sixteen other persons named, all heirs at law and next of kin of one Hiram B. Smith, deceased.</p> <p>By plea in abatement defendant raised the question whether the grand jury which found the indictment against him was a legally constituted body, the contention being that because the jury commission, composed of the clerk of the supreme court of the District, the United States marshal, and the collector of taxes for the District, did not take an .oath of office as such ■ commissioners, their acts were void.</p> <p>Before discussing the evidence in detail it may be well to state, in a general way, the theory of the prosecution and that of the defense. On behalf of the government it was contended that the above sum of money came into defendant’s hands as attorney, and that he wrongfully converted it to his own use; in other words, that he embezzled it. Defendant freely admitted that he received the money and that he appropriated it to his own use, but contended that the appropriation was under an agreement or understanding with the prosecuting witness, whose authority in the premises was unquestioned, ■ and hence that there was no conversion, wrongful or otherwise.</p> <p>We come now to the facts material here. There was pending in the.supreme court of the Distinct an equity cause, in which interests of the heirs of the said Hiram B. Smith, deceased, were involved. These heirs lived in the West, and one of them, the complaining witness, who resided at Donnelly, Minnesota, acted for all. Smith, called by the government, testified that on July 12, 1913, he came to Washington and engaged Clayton E. Emig, Esquire, and defendant to represent the heirs of the Hiram R. Smith estate in said equity cause. The witness identified certain letters which defendant had written him concerning the settlement of the case, including one dated November 18, 1913, containing a statement of moneys received by defendant, and the expression of an intent to remit upon receipt of releases from said heirs. The witness further testified that he received no remittance, and that finally, about June 14th or loth, 1914, he came to Washington concerning the matter, and saw defendant, who said he would be able to pay within a day or two. Witness was in Washington two weeks, and saw defendant half a dozen times during that period. On July 1st, the day witness left the city, defendant gave him $90 in cash and two checks for the balance, which upon presentation at the bank in Donnelly were returned protested. Thereupon witness turned the matter over to the county attorney at Morris, Minnesota.</p> <p>On cross-examination the witness said that, when he employed defendant, witness explained to him that he represented his brothers and sisters and all of the grandchildren of Hiram R. Smith; that upon that occasion he was in Washington about four days, during which time “he became very familiar and close to Mr. Fulton; that he and Mr. Fulton became very friendly; that he was in Mr. Fulton’s office every day; that on Sunday he was in Mr. Fulton’s office practically all day;” that when the matter had been settled defendant wrote witness about the settlement; that defendant had never denied owing witness the money. Witness admitted signing a letter dated December 7, 1914, and addressed to the district attorney for the District of Columbia, and reading as follows:</p> <p>Dear Sir:</p> <p>There is one or two matters that I fear I did not make clear in the matter concerning Mr. Fulton’s settlement with me which I wish to make clear to you.</p> <p>The first is the $100, I sent Mr. Fulton for cost of appeal is fully accounted for by him in the statement of our settlement and there is no irregularity whatever about that.</p> <p>The second is I agreed and permitted Mr. Fulton to keep and use the money as a temporary loan. And I feel this should be made clear before you go any further in the matter; hence I address you this note. While I was here last summer Mr. Fulton went all over the matter with me and in anticipation of paying the loan he gave me checks he expecting at that time to be able to take care of them, paying to me part of the money. As I was not given a chance to fully explain this when I was talking to your Mr. Given, this morning, I feel that I should write these facts otherwise a great injustice might be done Mr. Fulton as well as an irreparable injury. If necessary, I would be glad to- have you lay this matter before the grand jury in order 'that!they may understand how the matter is.</p> <p>I may hdd that Mr. Fulton has made settlement with me and there is nothing more to the transaction. I called to see Mr. Fulton this afternoon late and found him ready to settle and in fact in the ¿ct of sending remittance of'the balance due on the temporary loan.</p> <p>According to the Statement of the witness he went before the grand jury on Monday, December 5, 1911, and thereafter on the same day, and of his own volition, went to see defendant at his office. He went again on the morning of the Yth in response to a telephone call from defendant, who prepared the above letter and a duplicate original, and requested witness to sign both and hand the original to the district attorney. Witness then testified that he told defendant he would sign the original and hand it to Mr. Laskey, (the district attorney) ; that he did not do so, but, on the contrary, destroyed it. Later in his testimony he denied that he had told defendant that he would see the district attorney and hand him the original of said letter, or that he would mail it to him. He -admitted that he subsequently saw both the district attorney and an assistant, but denied telling either of them about the letter. He did admit telling defendant about this interview with the district attorney and his assistant, and admitted telling defendant that the district attorney had said “that it (the Case) had gone before the grand jury, and he could make no change in it.”</p> <p>At another point in his testimony this witness denied tolling defendant, subsequently to signing the letter, that he had been to see the district attorney. Witness further denied that he had a demand note for the balance due. Whereupon the court, of its own motion, struck out the evidence regarding the note. Defendant’s counsel excepted, stating that “the object of this inquiry in reference to the note was to show that defendant gave to the witness said note covering the amount referred to as evidencing the debt.” It further appeared that such a note was given the witness on the day he appeared before the grand jury, Smith testifying that some time later he mailed it to defendant with the statement “that the only thing he (witness’s attorney) will consider is money in this matter, so I ask you to forward the money to Mr. Cherry as soon as possible.” In another letter bearing the same date, namely, December 11, 1914, Smith according to his testimony wrote defendant that on his way home he had stopped off at Morris, Minnesota, and had a talk with his attorney, “about that we talked over in the office the day I left, and he told me he didn’t think it would be good policy to take the steps you outlined in that letter.” The letter continues: “I am very sorry I cannot help you out in that way, as you know it would put me in bad with the district attorney, and I am liable to get into trouble myself. Mr. Cherry told me to tell you that if you would send him the money to cover everything concerned in this matter, he would then take the matter up with the district attorney, Mr. Laskey, and do all in his power to help you out.”</p> <p>The witness further stated, on cross-examination, that as near as he could remember he had turned over to the district attorney all letters written him by defendant, “but he would not be certain; that there might be a letter or two somewhere that he did not get together; that he brought all the correspondence he could find; that he did not know whether he had lost any of the correspondence or not, as he never marked it down or kept any record of it.” Thereupon witness was shown a carbon copy of a letter addressed to him at Donnelly, Minnesota, dated November 4, 1913, purporting to have been written by the defendant, and the witness “stated that he had not received a letter of that kind.” Witness further denied that he had ever given defendant permission to use the money, or that- defendant' had ever asked for that privilege.</p> <p>Defendant testified that upon Smith’s first visit to Washington, when he employed defendant, he asked Smith “if, in the event he was successful in getting hold of the fund, he would be willing to perpait witness to use the same for a short time, as he (witness) needed money by reason of the fact that he had lost considerable money,” etc.; that “in response to such a request, Smith agreed to let witness have the use of said money for a short time if he was successful in recovering it.” He further testified that on November 4, 1913, he dictated a letter to his then clerk and stenographer, a Mr. Bennett, a carbon copy of which letter witness identified; that the letter, in accordance with the usual custom, was written out, signed by the witness, and turned over to the clerk for mailing. It was to this letter that the complaining witness referred when he stated “that he had not received a letter of that kind.” Upon objection being interposed to the receipt of the carbon copy of the letter in evidence, Mr. Bennett was called, .and testified that he now is a law student in Georgetown University, but that he was in the employ of defendant from May of 1913 to the middle of January, 1914. Upon being shown said carbon copy he testified that defendant dictated the letter to him, and that he took it down in shorthand; that he then wrote out the letter, which defendant signed, and that witness mailed the letter to .Frederick M. Smith; that the address of the original was shown in the carbon copy. Witness stated positively, on cross-examination, “that he remembered writing the letter and remembered its contents.” He admitted that he had no recollection of mailing that particular letter, “other than that Mr. Fulton signed all letters upon their being written, and witness immediately stamped, put them in envelopes, and sent them off.” On redirect examination witness stated that there were a number of peculiar features about this particular case that tended to make a person remember it; that all letters were mailed by him; that immediately upon their being signed and stamped “he took them right out to the chute and mailed them on the sixth floor of the Colorado Building; the chute was around by the elevator shaft; that he always mailed the letters, and none of them ever stayed around there even for a short time; that the original letter had the letter heading of Mr. Fulton thereon, his office address, and so had tho envelope; that the letter never came back to the knowledge of the witness,” whose duty it was to open and glance over the mail in the morning. Over the objection and exception of the defendant, the copy of the letter was excluded. It reads as follows:</p> <p>Mr. Frederick M. Smith,</p> <p>Donnelly, Minn.</p> <p>Dear Sir:</p> <p>As everything between Mr. Wheatley and myself will be closed within the next few days, I am writing to say that if you have not changed your mind about letting me have the use of the money for a short time, as we talked when you were here, I shall be glad to use it, say for not over sixty days. Hnless you write to the contrary, by the 16th instant, I will take it that you are still willing for me to use the money for a while, which I will do, and again assure you of my very great appreciation of your kindness in this matter, for it will be of great relief to me at this time, as I am needing a little help financially to meet some pressing obligations.</p> <p>As soon as the matter is closed, I will prepare statement of account and forward to you so you see just how the whole s matter stands.</p> <p>Again thanking yon for your very great kindness in this particular, I am,</p> <p>¿Very respectfully,</p> <p>Defendant was then recalled to the stand, and gave his ver sion of how the letter of December 7, 1914, to the district attorney came to be written. He stated that Smith came to his office voluntarily, defendant not even knowing that he was in the city; that Smith repeated the substance of what he had stated to the district attorney and to the grand jury, whereupon defendant asked him whether he had explained that “it was a loan.” Upon receiving a negative reply, he asked Smith why he had omitted this explanation; that Smith replied that he had not been asked the question. Whereupon defendant asked him why, knowing the- circumstances, he did not voluntarily make the statement, to which Smith replied that he did not think of it; that defendant then asked him if he would write the district attorney the facts, whereupon Smith answered that he would be glad to do so; that the letter was then written by defendant; that Smith signed the original as well as the copy; 'that notwithstanding that Smith at this time said he was about to leave town, he appeared at defendant’s office the next morning .and again in the evening; that during the interview of the morning the note was given Smith, and that it had never, been returned. Neither had defendant received either of the letters of December 11th. During the interview of the afternoon Smith stated that he had explained the matter contained in the letter of December 7th to an assistant district attorney, and asked him to drop the prosecution; that the assistant expressed a willingness to do so, when the district attorney came along and stated that it had gone so far that he couldn’t drop it. Defendant was asked whether he had any intent fraudulently to convert this money to his own use, and replied: “None whatever. As I stated at that time, I believed I had the right to use it by reason of - my understanding with Mr. Smith.”</p> <p>During the cross-examination of defendant the witness again was shown the carbon copy of said letter of November 4th, and, notwithstanding that it had been excluded when offered as evidence for defendant, it was introduced in evidence by the government.</p> <p>Thereupon Mr. Bennett was recalled to the stand by the defense, and testified that he remembered the conversation between Smith and defendant in reference to the loan in July, 1913; that Smith mentioned the fact that some of the money was to go to minors, who could not get it until they became of age; that witness understood defendant was to pay interest if he used the money; that witness’s attention was never called to this conversation; that he mentioned it to defendant when defendant asked him about this matter some six weeks previously ; “that he then mentioned to Mr. Eulton the fact that he had overheard the conversation between Mr. Smith and him, and that during the conversation he had overheard that part of it.”</p>

<p>Mandamus; Indian Lands; Secretary or the Interior; Discretion; Regulations.</p> <p>1. Mandamus will not lie to prevent an anticipated injury.</p> <p>2. A petition for the writ of mandamus is prematurely filed and will be dismissed where it is sought to compel the Secretary of the Interior to approve or disapprove an oil and gas lease of Indian lands made by the petitioner, and the Secretary answers, and it is not denied, that the lease in the ordinary course has not reached him for action, and he is unable to state whether he will approve or disapprove it; and it is immaterial that it is conceded by the Secretary that such lease, if made, would give the lessee a greater acreage than is permitted by an existing regulation restricting the acreage of such lands to be held by any one lessee.</p> <p>3. The discretionary power of the Secretary of the Interior to make regulations concerning oil and gas leases of Indian lands implies the power and discretion on his part to change or wholly abrogate such regulations.</p> <p>4. Qucere, whether a regulation made by the Secretary of the Interior is valid that provides that “no person, firm, or corporation will be allowed to lease within the territory occupied by the Five Civilized Tribes, for the purpose of producing oil or gas, more than 4,800 acres of land in the aggregate.</p>

<p>Insane Persons; Indigency; Statutes; Government Hospital fob the Insane; Statute of Limitations.</p> <p>1. To be indigent does not mean that a person must be a pauper, and, within the meaning of the statute relating to the commitment of the insane to the Government' Hospital for the Insane, an insane person with insufficient estate to pay for his maintenance in the hospital, after providing for those who could claim his support, is indigent.</p> <p>2. Whether an insane person is indigent within the meaning of the statute relating to the commitment of such persons to the Government Hospital for the Insane is a question of lact. If such a person has $300 in bank and certain life insurance policies having a surrender value, and has no one dependent upon him, he is not indigent.</p> <p>3. So much of chap. 4, U. S. Rev. Stat. (secs. 4838-4858) as relates to the commitment of the indigent insane of the District of Columbia to the Government Hospital for the Insane, has been superseded by the act of Congress of February 23, 1905 (33 Stat. at L. 740, chap. 738), and secs. 115a, 115b, 115c, 115d, and 115e, D. C. Code (32 Stat. at L. 524, chap. 1329). (Citing Mackey v. Peters, 22 App. D. C. 341, and Baker v. District of Columbia, 39 App. D. C. 42.)</p> <p>4. An action lies by the District of Columbia against the committee of an insane person with homicidal tendencies, who has been committed as such to the Government Hospital for the Insane, to recover from his estate in the hands of his committee the amount expended by the District for costs and maintenance in his behalf,' both prior and subsequent to the date of the appointment of the committee.</p> <p>5. The statute of limitations does not apply to an action by the District of Columbia against the committee of an insane person who has been committed to the Government Hospital for the'Insane, to recover .for costs advanced and expenses incurred in the maintenance of the insane person, as the statute giving such right of action is inconsistent therewith. (Following Baker v. District of Columbia, 39 App. D. C. 42.)</p> <p>6. Under see. 115b, D. C. Code (32 Stat. at L. 524, chap. 1329), the supreme court of the District of Columbia, in. a suit by the District against tlie committee of an insane person to recover from Ms estate money expended by the District of Columbia in the maintenance of the insane person in the Government Hospital for the Insane, has the discretionary power to order a certain portion of the estate to be invested and the interest thereon used to pay premiums on outstanding life insurance policies on the life of such insane person.</p>

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia in an action to recover taxes alleged to have been paid under duress, tbe court having overruled a demurrer to tbe declaration and tbe defendant having elected to stand on its demurrer.

Hearing on 'an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia in an action to recover taxes alleged to have been paid under duress, the court having overruled a demurrer to the declaration and the defendant having elected to stand on its demurrer.

<p>Indians; “Current Expense;” Appropriation Acts oe Congress; Injunction ; Statutory Construction.</p> <p>J. The proceeds from the sale of land ceded to the United States by the Chippewa Indians, placed in the Treasury of the United States to their credit as a permanent fund under the provisions of the act of Congress of January 14, 1889 (25 Stat. at L. 642, chap. 24), is a trust fund held by the United States for those Indians.</p> <p>2. “Current expense,” within the meaning of acts of Congress appropriating money for current and contingent expenses of bureaus of the government, means regular and ordinary expenses, and not expenses of a special, unusual, or extraordinary character.</p> <p>3. Under Joint Resolution of Congress of March 4, 1915 (38 Stat. at L. 1228), continuing and making available during the fiscal year 1916, for fulfilling treaty stipulations with various Indian tribes, all appropriations for current and contingent expenses of the Bureau of Indian Affairs remaining unprovided for on June 30, 1915, to the same extent and under the same conditions as were provided for on account of the fiscal year 1915 in the Indian appropriation act for that year, the executive officers of the government having control of the trust fund created by the United States for the Chippewa Indians under the act of Congress of January 14, 1889 (25 Stat. at L. 642, chap. 24), providing that Congress may appropriate from time to time from the principal of such fund a portion of it for the purpose of promoting civilization and self-support among said Indians, have no right to expend from such trust fund for such purposes the same amount as was appropriated for that purpose for the fiscal year 1915, as the appropriation for that purpose for 1915 was a special one; and an injunction at the suit of the Indians will be granted to prevent such expenditure.</p> <p>4. In construing a statute, its title will be considered only when the words of the statute are doubtful or ambiguous.</p>

<p>Hearing on an appeal by the plaintiff from a judgment dismissing an action to recover the balance due on four promissory notes secured by deed of trust, the court having sustained a demurrer to the declaration and the plaintiff having elected to stand upon its declaration.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal by the American Security & Trust Company from a judgment sustaining a demurrer to its declaration in an action to recover the sum of $2,975.73, with interest, being the balance due on four notes for $5,000 each.</p> <p>The plaintiff elected to stand upon its declaration.</p> <p>The facts are these: The plaintiff conveyed to one Henry C. Cryer on July 12, 1912, certain premises in the city of Washington known as the Hood Building, part of the consideration of which consisted of four notes for $5,000 each. On the same day Cryer executed a trust deed conveying the said premises as security for the payment of said notes. October 2, 1912, Cryer conveyed the premises to Clarence F. Norment, who took the conveyance subject to the trust, but without assuming the payment of the same. October 21, 1912, Norment conveyed the premises to Ferrero, who accepted the deed providing that the grantee assumed the payment of the notes as described. That by the terms of the trust deed the entire principal of all the notes became due upon failure of the maker to pay any instalment of interest. An instalment of interest having become due after the sale to Ferrero, the American Security & Trust Company elected to declare the notes due, and the property was advertised in accordance with the terms of the trust and sold for the sum of $18,000, which, after deducting the expenses of the sale, was applied to the payment of said notes, leaving a balance due on the last note of $2,975.73.</p> <p>It was agreed that Norment did not assume payment of the notes secured by said trust deed when he took the conveyance of said property.</p>

<p>Motion by the appellee to dismiss appeals.</p> <p>The facts are stated iu the opinion.</p>

Hearing on an appeal by tbe plaintiff from a judgment of the Supreme Court of the District of Columbia quashing writs of attachment in an action to recover damages for alleged breach of a contract of employment.

<p>Criminal Law; Embezzlement; Criminal Intent; Guardian and Ward; Evidence.</p> <p>1. Embezzlement, which is a creature of statute, not being an offense at common law, is, generally speaking, a fraudulent conversion of another’s personal property by one to whom it has been intrusted, with the intention of depriving the owner thereof. (Citing Masters v. United States, 42 App. D. C. 350, Ann. Cas. 1916A, 1243, and Fulton v. United States, ante, 27).</p> <p>2. Evil intent, that is intent to defraud, is an essential element of the crime of embezzlement, as defined by sec. 841, D. C. Code (31 Stat. at L. 1326, chap. 854) providing that if any fiduciary, including a guardian, shall fraudulently convert property in his possession to his own use, he shall, in addition to forfeiting commissions, be deemed guilty of embezzlement.</p> <p>3. The mere fact that a guardian has mingled the money of his ward with his own money does not afford a sufficient basis for the presumption of evil intent in a prosecution of him for embezzlement under sec. 841, D. C. Code. For any loss so resulting he and the surety on his bond are liable civilly. (Citing Mades v. Miller, 2 App. D. C. 455).</p> <p>Note. — -Evidence of other crimes in prosecution for embezzlement, see note in 62 L.R.A. 226, 264.</p> <p>On the question of intent, or offer, to return or actual return of property as affecting, charge of embezzlement, see note in 52 L.R.A. (N.S.) 1013.</p> <p>4. Intent to defraud on the part of a guardian charged with embezzlement of his ward’s money may be shown by circumstances surrounding the ease. Evidence is admissible of the financial condition of the guardian at or immediately prior to the alleged offense, and of his failure to account for or turn over funds in his hands, but evidence of other similar offenses is inadmissible unless there is some connection between the acts shown and the one with which the accused is charged. (Citing Cassenheimer v. United States, 26 App. D. C. 432.)</p> <p>5. In a prosecution of a guardian for embezzlement, where the prosecution has shown the deposit of the ward’s money in the individual bank account of the accused and its withdrawal by him for his own use, it is error to exclude evidence offered by the accused of subsequent payment by the accused to his ward although not made from the same bank account, and the filing and approval of his account as guardian, and the fact that when such account was filed he had the proper balance on deposit, as such evidence is material upon the question of criminal intent.</p> <p>6. In a prosecution of a guardian for embezzlement, it is error to permit the prosecution in cross-examining the accused to interrogate him concerning estates of which he had long previously been guardian or trustee.</p>

<p>Hearing on an appeal by the plaintiff from a decree of tbe Supreme Court of the District of Columbia dismissing a bill of complaint to have declared void an attempted execution by a testatrix of a power of appointment conferred upon her by the will of her mother.</p> <p>The facts are stated in the opinion.</p>

Hearing on an appeal by the plaintiff from a decree of the Supreme Court of the District of Columbia dismissing a bill in equity for a mandatory injunction to compel the defendant, a telephone company, to supply the plaintiff with telephone service at a rate named in contract between the parties.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the United States, entered for want of a sufficient affidavit of defense, in an action to recover the balance due on the purchase price of certain goods.

<p>Municipal Corporations; Streets and Sidewalks; Negligence.</p> <p>1. While a pedestrian using a public street may not assume that between crossings the street is as smooth and safe as at crossings, he has a right to assume that it is reasonably safe for the use for which it primarily was intended. (Cited District of Columbia v. Boswell, 6 App. D. C. 402.)</p> <p>2. It is not contributory negligence as a matter of law for a pedestrian to cross a street at a point which is not a regular crossing, and in an action for damages for personal injuries against a municipality by a woman who was injured while so doing, the injury being caused by her stepping into a depression in the street about 3 inches deep, 18 inches long, and 8 or 10 inches wide, by the side of a ventilating trap, where the plaintiff testified she was not looking down when she stepped into the depression, but there was evidence that other persons had repeatedly passed at the same place without observing it, — it is a question for the jury whether the plaintiff was guilty of contributory negligence. (Citing Burke v. District of Columbia, 42 App. D. C. 438.)</p> <p>Note. — As to right of pedestrian to assume good condition of street, see notes in 23 L.R.A.(N.S.) 621, and 48 L.R.A.(N.S.) 630.</p> <p>And as to contributory negligence in leaving traveled track, see notes in 21 L.R.A. (N.S.) 621, and 48 L.R.A.(N.S.) 639.</p>

<p>Evidence;. Witnesses; Patents; Interference; Reduction to Practice; Diligence.</p> <p>1. The entire deposition of a witness will not be discredited because of slight ' '• inconsistencies, if the testimony of the witness, taken as a whole and in conjunction with the other evidence in the case, can he so reconciled as to establish its truth in respect of the governing facts upon which the case must turn. There is such a thing as a witness testifying as to the happening of events after a lapse of time with so great accuracy as to beget suspicion. Immaterial inaccuracies aire sometimes strong evidence of candor.</p> <p>2. In an interference, the first party to reduce to practice is prima facie the inventor (following Paul v. Johnson, 23 App. D. C. 187), and therefore the last party to reduce to practice may overcome the other party only by proving that he was the first to conceive and that he was exercising due diligence when the other party entered the field. (Following Furman v. Dean, 24 App. D. C. 277.)</p> <p>3. Where both parties to an interference reduced to practice at the same time, the one first to conceive the invention must be regarded as the first inventor, irrespective of the question of diligence, as there is no junior or senior party, as it cannot be said that .the one first to conceive is junior for the mere purpose of establishing lack of diligence on the part of the other.</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 appeals from decisions of the Commissioner of Patents, in interference proceedings.</p> <p>The facts are stated in the opinion.</p>

<p>Hearing on an appeal by the plaintiff from a decree of the Supreme Court of the District of Columbia dismissing a bill in equity for an injunction and the appointment of a receiver.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>Appeal from a decree in the supreme court of the District denying appellant’s right to a percentage retained by the United. States under a contract in which appellant, National Surety Company, was the surety.</p> <p>On November 14, 1905, Orman & Crook, of Denver, Colorado, agreed with the United States to construct a dam and appurtenances and 1 7-| miles of canal near Belle Fourche, South Dakota. The work was in three schedules, the estimated contract price (the actual cost being based upon quantity of materials furnished and work done), at the unit price agreed upon, was as follows: Schedule No. 1, $879,164; schedule No. 2, $70,129.75; schedule No. 3, $54,005.50, aggregating $1,003-299.25. The bond of the contractors was in the sum of $120,-000, with the National Surety Company, appellant here, as surety. The contract provided for the deduction of 20 per cent from the estimated value of the work done by the contractors, until the retained percentage had reached $40,000 under schedule No. 1 and $5,000 each under schedules Nos. 2 and 3. While this retained percentage, under the strict letter of the contract, was to become the absolute property of the United States in the event of a default by the contractor, there is no dispute that it was to be held merely as additional security and indemnity. See Quinn v. United States, 99 U. S. 30, 25 L. ed. 269. The contract further gave the government, through the Secretary of the Interior, the right upon proper notice for cause to suspend the operation of the contract, and take possession of all machinery, tools, and materials on the work, and use the same to complete the work, or to employ other parties to carry the contract to completion and charge the excess cost to the contractors and their sureties.</p> <p>In January 16, 1908, Orman & Crook went into voluntary bankruptcy, and their contract was suspended by the Secretary of the Interior, under the provision above mentioned. They then had received $310,111.91, leaving an unearned balance in the hands of the government estimated at $693,187.34, plus $45,000 retained percentages, schedule No. 3 having been completed and holdbacks released. In addition to these two sums, the government held $7,050, which had been assessed as penalties for delay. Recognizing its liability, the Surety company immediately endeavored to find a contractor who would complete the work, and on April 2, 1908, entered into a conditional contract with Hayes- Bros. Company and Peters, Wisconsin parties, under which those parties agreed with the surety company that they would complete the work for the unearned part of the contract price under the Orman & Crook contract, the $45,000 held back, the $7,050 penalty, and $14,050 to be paid by the surety company. The surety company agreed to assign all warrants, and to pay to the contractors all money received from the United States within five days after warrants or payments were received by the surety company, and, in addition, to pay in instalments at times stated the $14,050. The contract further provided that the surety company should not be liable to the contractors for any sum greater than the $14,050. It was further provided, however’, that should the United States fail to enter into contract with the surety company on or before April 10, 1908, for the completion of the work and for the payment of the $45,000 held back, the contract under consideration should “immediately cease and become null and void.”</p> <p>Thereupon the surety company took up the matter with the proper officials of the government, and on April 8th, following, entered into a contract with the government, through the Secretary of the Interior, agreeing to complete the work under the Orman & Crook contract, the government undertaking to pay for the work to be .done as provided in the original contract, and, upon the completion of the work, to pay to the surety company the percentage theretofore retained; that is to say, the $45,000.</p> <p>The work then was prosecuted to completion by the second contractors, and the question arose whether the balance of this retained percentage belonged to the trustee in bankruptcy of Orman & Crook or to the surety company. The surety company finally filed its bill, praying for an injunction and the appointment of a receiver. The learned trial justice found from the evidence “that the moneys to be paid to Hayes Bros. Company and Peters * * * represented the best, that is, the lowest price for which the plaintiff company (the surety company) was able to secure the completion of the work left uncompleted by Orman & Crook, and that it exhibited diligence and good faith towards Orman & Crook and their trustee in bankruptcy, the defendant Dayton, in securing this price for the completion of the work.” The court, however, being of the opinion that the United States had no right, power, or authority to undertake to pay this retained percentage to the surety company unless it appeared that it had actually expended the amount in the completion of the work, or had become liable to any other person to pay the same, and, finding that it had not become so liable, ruled that this percentage belonged to the trustee in bankruptcy of Orman & Crook.</p>

<p>Hearing on an appeal by the respondent, the Commissioner of Patents, from a judgment of the Supreme Court of the District of Columbia granting a writ of mandamus to compel the respondent to declare or direct an interference between the application of the petitioner for a patent and the application of an undisclosed applicant.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This appeal is from a judgment of the supreme court of the District of Columbia awarding appellee, the Eowler Car Company, petitioner below, a writ of mandamus commanding appellant,- Thomas Ewing, the Commissioner of Patents, to declare, or direct to be declared, an interference between petitioner’s application for a patent and the application of an undisclosed applicant for a patent for a similar invention.</p> <p>It appears that on November 18, 1915, the Commissioner wrote a letter to petitioner’s attorney stating that there was another application pending in the Patent Office, containing substantially the same invention as that, defined in seven claims set out in full in the letter. After setting out the claims, the letter contained the following request: “In order to determine whether it is necessary to declare an interference, you are requested to obtain a statement from Fowler, setting forth when he conceived the invention defined in the above-quoted claims, when he disclosed it to others, and when he reduced it to practice. This statement will not be made a part of the record and will be returned to you.”</p> <p>Shortly thereafter, on November 23, 1915, petitioner’s attorney wrote the Commissioner, inclosing .the following communication from petitioner: “In response to your request I beg to say that I conceived the subject-matter of the claim quoted in your letter on or about April 16, 1915, disclosed the same to others, and made drawings on or about the same date, and have not reduced the invention to practice by constructing any full-sized devices’.”</p> <p>On the same date, petitioner, through his attorney, filed an amendment to his application, inserting the claims suggested in the Commissioner’s letter, with the following statement: “It is thought that these claims appear in a copending application, and they are inserted at this time with the request that, if such claims do appear in a copending application, an interference be declared.” On December 10, 1915, the Commissioner replied to petitioner’s attorney, as follows: “The dates of invention claimed by Eowler are subsequent by several months to the filing date of the application of the other party. The other party’s case will be passed to issue as soon as possible, and when patented will be cited as a reference against such claims in Fowler’s application as it may be found to anticipate.”</p> <p>The Commissioner’s return to the rule to show cause is based upon the ground that petitioner’s date of conception is several months subsequent to the date on which the other application was filed, and that this finding justifies the Commissioner in refusing to declare an interference.</p>

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia entered for want of a sufficient affidavit of defense. The Court in the opinion stated the facts as follows: This is an appeal from a judgment for the plaintiff, Herman W. Van Senden, appellee here, in the supreme court of the District under the Y3d rule.

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

<p>Patents; Interference; Right to Make Claims; Laches; Estoppel.</p> <p>1. Where the construction of one of the parties to an interference involving ,, an improvement in pay as you enter cars, calls for no division of the space inside of the door into separate entrance and exit passages, all persons entering the gate being expected to pass through a single exit entrance, and the portion of the platform intended as an entrance passage not being obstructed by any door but open at all times to passengers, his claims cannot be read upon the issue of an interference which calls for a passenger ear provided with a door and with means arranged inside the door to divide the space inside the door into separate entrance and exit passages; the “space inside the door” meaning space controlled by the door to which access must be obtained through the door.</p> <p>2. Failure on the part of one of the parties to an interference for three years after the grant of a patent to his adversary to make the claims of the issue, which he then copies from the latter’s patent, estops him from making such claims {Be Fritts, post, 211) ; especially where he fails also to comply with rule 48 of the Patent Office, requiring an applicant when he presents a claim for matter alleged to have been originally shown and described, but not embraced in the statement of invention or claims as originally presented, to file a supplemental oath.</p>

<p>Patents; Patentability; Laches.</p> <p>1. Whore the invention disclosed in an application for a patent is such as to justify certain claims being made, but the applicant does not make them at the time but waits until patents subsequently granted em-' bracing such claims have expired and then presents the claims, they will be rejected on the ground of his laches. While an applicant may be legally justified in permitting his application to remain in the Patent Office for so long a time, he must specifically and seasonably assert his claims after the issuance of patents to others in order that interferences may be declared and the issue of priority .determined. (Citing Bechman v. Wood, 15 App. D. C. 484, and Brown v. Campbell, 41 App. D. C. 499.)</p> <p>2. When the element of diligence or good faith in an applicant for a patent is lacking, there is no valid reason for such a construction of the patent laws as would effect an extension of the limited monopoly granted upon prescribed conditions which include those very elements.</p>

Hearing on an appeal by tbe defendant from a judgment of tbe Supreme Court of tbe District of Columbia, entered for want of sufficient affidavit of defense in an action oh a promissory note.

Hearing on an appeal by tbe plaintiff from a judgment, on tbe pleadings and affidavits of tbe parties, in an action to recover premiums paid on policies of insurance.

<p>Motion to strike the statement of evidence from the record on appeal.</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, sitting as an equity court, in a suit for divorce. The -facts are stated in the opinion.

Report of the Grievance Committee of the Bar concerning alleged misconduct of an attorney of this court, and his answer thereto. The facts are stated in the opinion.

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

<p>Corporations; Officers; Life Insurance; Parties; Equity; Receivers; Trusts and Trustees.</p> <p>1. Officers of an insurance company who come into the possession of the assets of the company, which had been transferred to it by another company whose business and assets it had acquired, have no right to retain, without authority, such assets in their possession as self-constituted trustees for the policy holders of the company which had transferred them, and are responsible for such assets to a receiver of the company to which they had been transferred; and if they have sold any of them are liable for their actual value; nor have such officers, where they refuse to attend directors meetings, any right to acquire new offices for the company and to charge it with rent for the same.</p> <p>2. ' Policy holders of an insurance company which had transferred its assets to another insurance company, who had acquiesced in such transfer and accepted the liability of that company and paid premiums to it, are not necessary parties to á suit in equity for the appointment of a receiver for the company to which such assets had been transferred.</p> <p>3. Capital stock of an insurance company issued to certain of its officers, who gave no consideration for it, cannot be made the basis of any claim in a receivership proceeding affecting the company,</p> <p>4. Where disagreement of the members of the board of directors of a corporation, who are equally divided in number, results in a suspension of the business of the company, leaving nobody to manage its affairs or conserve its assets, a receiver will be appointed to take possession of its property and manage its affairs under the supervision of the court.</p> <p>5. In a receivership proceeding involving an insurance company which had taken over the assets of another company and assumed its obligations, the assets, including those received from the transferring company, will be conserved and used for the benefit of its policy holders and the policy holders of the transferring company who have accepted the liability of the other company.</p>

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia entered for want of a sufficient affidavit of defense in an action on a policy of life insurance.

Hearing on an appeal by the plaintiff from an order of the Supreme Court of the District of Columbia in a divorce suit awarding alimony to the defendant. The Court in the opinion stated the facts as follows: This is an appeal from an order awarding alimony to the defendant, Effie L. Dunnington, in a suit for divorce brought by Clyde C. Dunnington.

<p>Partition; Cotenancy; Appeal and Error; Amendment..</p> <p>1. Mere acquiescence by one tenant in common in upkeep and improvements . by his eotenant, who has complete possession of the common property, is not sufficient to establish partition in pais, without proof of some agreement between the parties to that end.</p> <p>2. A suit to enforce a partition in pais cannot, on appeal, be converted into a suit for partition, as between tenants in common, and a decree in such a suit for the plaintiff not supported by the evidence will be reversed and the cause remanded with directions to vacate the decree and permit the plaintiffs to amend, if so advised.</p>

<p>Landlord and Tenant; Renewal or Lease; Equity; Appeal and Error.</p> <p>1. Where a tenant under a lease giving him the privilege of renewal, in a suit by him against his landlord to compel the renewal, testified that upon the expiration of the lease he indicated to the defendant that he would want a renewal, but the defendant denied such testimony, plaintiff cannot be said to have sustained the burden of proof which was upon him.</p> <p>2. A tenant under a lease which gives him the right of renewal, but who before the expiration of the lease fails to assert his right to renew, becomes a tenant by sufferance (construing sec. 1034, D. C. Code, 31 Stat. at L. 1353, chap. 854 and following Morse v. Brainerd, 42 App. D. C. 448); but if the tenant seasonably demands a renewal, equity will compel the landlord to renew, as equity regards as done that which should be done.</p> <p>3. Where the trial court has not ruled, but will be required to rule, upon a question raised by a motion for a rehearing in this court, this court will not assume that the ruling of that court will be adverse to the moving party.</p> <p>Note. — As to • effect of tenant’s holding over after expiration of lease with option for renewal without formally exercising option, see note in 29 L.R.A. (N.S.) 175.</p> <p>*jSTote. — Tlie decree appealed from also referred the cause to the auditor to ascertain and report what damage, if any, had been sustained, by the defendant because of the wrongful suing out of an injunction pendente lite by the plaintiffs, whereby the defendant was restrained from suing in the municipal court for the possession of the premises. — Reporter.</p>

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

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

<p>Patents; Interference; Diligence.</p> <p>1. Failure by tbe senior party to an interference, for five months after making disclosure to make drawings for the use of his attorney in preparing an application, does not show such want of diligence as to entitle the junior party to an award of priority, where the invention is of an intricate nature and minute detail is of its essence, and where during that time he made tentative drawings, had no one who could by any possibility assist him in the preparation and development of the invention, and only turned over his papers to his patent attorney when he considered his idea definite enough to form the basis for an application for a patent, and the completed drawings delivered to his attorney show that much time was necessarily spent in perfecting the details of the invention and that such consumption of time was fruitful of results.</p> <p>2. While the mental attitude of a party to an interference will not generally be considered on the question of diligence, there may be circumstances which will constitute an exception to the rule.</p>

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

<p>Hearing on an appeal from a decision of the Commissioner of Patents registering a mark as a trademark over an opposition.</p> <p>The facts are stated in the opinion.</p>

<p>Patents; Intereebence; Construction oe Claims; Right to Make Claims.</p> <p>1. In an interference, a claim should be given the broadest interpretation which it will reasonably support, and limitations will not be read into it to meet the exigencies of a particular situation (following Miel v. Young, 29 App. D. C. 481; Geltz v. Crozier, 32 App. D. C. 324; Western Electric Co. v. Martin, 39 App. D. C. 147; and Leonard v. Horton, 40 App. D. C. 22); but where the difference in the invention clearly appears, the claims should be given a reasonable interpretation, consistent with the specification in which they originated, to the end that the real inventor may be given the award of priority.</p> <p>•2. Where one of the parties to an interference copied the claims of his adversary which were made the issues of an interference then declared, and they called for a car end composed of three sections, two of which were duplicates and the third, an intermediate section, forming a connection between the duplicate sections, and his specifications and drawings called for and showed a car end compo’sed of seven sections, the top and bottom ones being different in shape and conformation, while the intermediate ones were alike, it was held that he was not entitled to make the claims of the issue, and that the other party was entitled to an award of priority.</p>

<p>Hearing on an appeal by the plaintiffs from a decree of the Supreme Court of the District of Columbia, sitting as an equity court, in a suit for the construction of a will.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>Mary O. Metzger died in this District on April 21, 1912, leaving' her husband, Millard Metzger, and two sisters, Ella S. Todd and Lulu A. Burton, and Elorence C. Dinwiddie and Marion L. Dinwiddie, daughters of a deceased sister, as her heirs at law and next of kin. She left a will, which provided, after some immaterial bequests, as follows: “To my husband, Millard Metzger, I give the rents and revenues derived from the property known as 208 Tenth street, N. W., square 350 s — lot 13, in the city of Washington, District of Columbia. I direct my executors to sell any of my estate, both real and personal, that to them may seem best, — and to invest and reinvest, and to keep tbe same invested at all times. The property known as 925 Massachusetts avenue, N. W. square 370 lot 3, in the city of Washington, District of Columbia, I wish set aside from my other estate, and direct my executors to purchase from Florence C. Dinwiddie and Marion L. Dinwiddie their one-half interest, the other one-half interest already belonging to me, and to donate the same to some charity, in memory of my parents,- Oliver P. and Cecilia J. Donn, and to be known as the Donn Memorial, and the balance or remainder of the revenues derived from my estate, both real and personal (after paying the bequests aforesaid mentioned), are to be applied to the maintenance of the Donn Memorial, and at the death of my husband, Millard Metzger, all of my estate, both real and personal, shall go to the maintenance of the Donn Memorial, — not having fully determined the character of the charity, to which I give my estate in memory of my parents Oliver P. and Cecilia J. Donn, — should I not do so during my lifetime, — I leave the selection to my husband, Millard Metzger, and Marion L. Dinwiddie, the executors of this my last will and testament, and no bond shall be required of them.”</p> <p>The husband, Millard Metzger, qualified as executor, Marion L. Dinwiddie renouncing her right to act. " The testatrix having failed during her lifetime to determine the character of the charity intended to be founded by her, the power of appointment devolved upon her husband. He likewise failed to determine the charity by deed, will, or otherwise. As directed in the will, the executor purchased the one-half interest in the Massachusetts avenue property.</p> <p>A bill in equity was filed in the supreme court of the District of Columbia by Florence C. Dinwiddie and Marion L. Dinwiddie against the executors of the estate of Millard Metzger, and named as additional defendants all persons entitled to make claim against said estate' as heirs or next of kin either of Mary O. Metzger or of her husband. It was conceded by counsel, and so held by the court, that since the husband, as trustee or donee of the power of appointment under the will, failed to carry out the express directions of the testatrix, and the objects of the trust being uncertain and indefinite, a court of equity is without power to carry into effect such a charitable trust. It was therefore decreed that, -except as to the minor bequests not here involved and the devise of the rents and revenues derived fi:om sublot 13, in square 350, known as 208 Tenth street, Northwest, held, to be only a life estate, Mary C. Metzger “is to be regarded and held as having died intestate, leaving her real estate to descend to her heirs, and her personal property to devolve by operation of law upon Millard Metzger, her husband, who survived her.” The court also decreed that the one-half interest in the Massachusetts avenue property purchased by Millard Metzger as directed in the will “is to be regarded as a part of the personal estate of the said Mary C. Metzger, and as having devolved by operation of law upon her said husband, Millard Metzger.” It was also decreed that the rents and profits from the real estate in the hands of the executors of Millard Metzger, amounting to $1,358.90, be paid to the heirs and next of kin of Mary C. Metzger.</p> <p>In other words, the court held that Mary O. Metzger died intestate, and that the real estate of which she died seised vested in appellants as her heirs at law and next of kin, and that her personal estate, including the one-half interest in the Massachusetts avenue property, descended to her husband. This holding is made to accord with section 1160, D. C. Code [31 Stat. at L. 1315, chap. 851], which provides that “on the death of any married woman owning real or personal estate and intestate thereof, her said estate shall be administered on as if she had been unmarried, and in the appointment of her administrator her husband shall be entitled to be preferred. After payment of her debts, her said personal estate shall be the property of her husband.”</p> <p>From the decree, the heirs at law and next of kin of Mary O. Metzger — Florence C. Dinwiddie and Marion L. Dinwiddie, plaintiffs below, and Ella S. Todd and Lulu A. Burton, two of the defendants below — have appealed.</p>

<p>Hearing on an appeal by tbe defendant from a judgment of the Supreme Court of the District of Columbia in an action by a real estate broker to recover his commission on a sale of real estate.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This suit was brought in the supreme court of the District of Columbia by appellee Johnson, a real estate broker doing business in this District, to recover from defendant Lloyd an agreed commission of 5 per cent on the sale price of certain real estate located in the State of Maryland and sold for defendant through the agency of plaintiff. From a judgment in favor of plaintiff, defendant has appealed.</p> <p>The sole defense is that plaintiff was doing business without a license, and his contract for a commission, therefore, is void and cannot be enforced. Section 7, 32 Stat. at L. 622, chap. 1352, relating to the general subject of “license taxes,” in this District, among other things, provides:</p> <p>“Sec. 7. That no person shall engage in or carry on any business, trade, profession, or calling in the District of Columbia for which a license tax is imposed by the terms of this section without having first obtained a license so to do. * * *</p> <p>“Par. 15. That real estate brokers or agents shall pay a license tax of $50 per annum. Every person who sells, or offers for sale, as the agent for others, real estate, wherever located, -x- * * shall be regarded as a real estate broker or agent, •x- -x- * k</p> <p>“Par. 47. That any person violating any of the provisions of this section shall, on conviction thereof in the police court of the District of Columbia, be punished by a fine of not more than $500 for each offense, and in default of -payment by imprisonment not exceeding thirty days, in the discretion of the court, except as otherwise provided in this section.”</p>

Hearing on an appeal by receivers from a decree of the Supreme Court of the District of Columbia, sitting' as an equity court, dismissing their petition to establish the liability of stockholders in a corporation for their unpaid subscriptions to stock. The Court in the opinion stated the facts as follows: Appeal from a decree in the supreme court of the District dismissing appellant’s bill.

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

<p>Patents; Interference; Risht to Make Claims.</p> <p>1. In an interference involving the question of whether one of the parties is entitled to make the claims of the issue, the Commissioner of Patents properly refuses to permit such party to take testimony as to what those skilled, in the art would understand from a study of his original application and disclosure, it being the duty of the tribunals of the Patent Office to determine for themselves what the application discloses; and where such party has copied the claims of the issue from his adversary’s patent, the burden of proof is upon him to clearly show that the important feature of the issue can be reasonably read into his application and disclosure.</p> <p>2. Where the counts of the issue in an interference call for a car end composed of two sections, or a plurality of joined sections of sheet metal, provided with stiffening ribs or corrugations which coalesce at the junction of the sections, the sections having connecting flanges extending from the protuberant sides of the corrugations, the corrugated ribs must so coalesce with the flanges that the channels formed in pressing the corrugations into the metal must be continuous across the end of the car, irrespective of the joints formed at the connections of the sections where the flanges are riveted together; and where the question in such an interference is whether one of the parties has the right to make the claims of the issue, and in .the claims of his original application is no statement to the effect that the ribs are continuous or that they coalesce at the flanges where the sections are riveted together, but he states that the ribs terminate at the flanges, and he makes no point of the two vertical ribs adding particular strength to the car end, mentioning them only as supports for a portion of the load of the roof, and depending chiefly- upon the horizontal ribs and the method of connecting the sheets at the flanges to withstand the stress to which a car end is usually subjected, and apparently treating the sections as separate entities and the ribs as terminating at the flanges, but so arranged that when the sections are riveted together the ribs will be in alignment, to grant him the claims of the issue would be to give him something not disclosed in his drawings and which could only be read into his specifications and claims by a forced construction, and his adversary is entitled to an award of priority.</p>

<p>Hearing on appeal from decision of the Commissioner of Patents registering a trademark over an opposition.</p> <p>The facts are stated in the opinion.</p>

Hearing on an appeal by the respondents from a judgment of tbe Supreme Court of the District of Columbia sustaining a demurrer to an answer to a petition for the writ of mandamus .and granting the writ. The Court in the .opinion stated the facts as follows: The relator, Gladys Aline Strong Hellmann, filed a petition against Henry P. Blair, Ernest H. Daniel, John B. Earner, Susie Boot Bhodes et al., composing the board of education of the District of Columbia. .

<p>Patents; Interference; Reduction to Practice.</p> <p>1. Where both parties to an interference reduce to practice on the samt day, the party first to conceive is entitled to priority. (Following McParland v. Beall, ante, 162.)</p> <p>2. Where the count of an issue in an interference embraces several elements, concerning only one of which there is a contest between the. parties, nevertheless the whole issue must be considered in determining the question of reduction to practice.</p> <p>3. Where an invention is designed to perform a definite purpose, a construction embodying it must be capable, when operated, of performing that purpose. If tests are necessary to demonstrate such capability, then tests must be made, and1 the tests so made must result in the expected performance. (Following Sydeman v. Thoma, 32 App. D. C. 362.)</p> <p>4. In an interference relating to hydroaeroplanes, in which the contest was as to whether one of the parties reduced to practice by a test of his device made on a certain day, and he claimed that the count of the issue called for a machine capable of skimming over the surface of the water at a great speed without capacity to rise from the water and fly, and also that the only reason his machine did not rise from the water in such test was that its engine was not sufficiently powerful, it was held, on a consideration of the language of the count and of such party’s introduction to his specification, in which he claimed that his invention related to improvements in heavier than air flying machines, and had reference particularly to a machine adapted to alight on the water and rise therefrom by its own power,, although some of its features were applicable to ordinary heavier than air machines, and to his drawings, which disclosed a flying machine, and also to magazine publications in which he told of experiments made after sueli test, which culminated, he claimed, in success at a subsequent test, — that the issue called for a machine capable of rising from and alighting upon the water, and that what such party-claimed to be a reduction to practice, amounted to no more than a crude experiment with an inoperative device. (Mr. Justice Robb dissenting.)</p>

<p>Patents; Patentability; Anticipation.</p> <p>1. A new combination of old elements amounts to invention where it produces a new and useful result, although each old element may-have been suggestive of the use which could be made of it in the new.</p> <p>2. Where the question of patentability is close, the doubt should be resolved in favor of the applicant. (Following Re Eastwood, 33 App. D. C. 291.)</p> <p>3. Claims in an application for a patent for a building wall constructed of hollow blocks provided with longitudinal hollow spaces or voids were held not to be anticipated by patents for various forms of building blocks, by means of none of which could a wall of any desired width be constructed, where the voids and webs would be in perfect alinement, as disclosed in the applicant’s invention.</p>

<p>Hearing on an appeal by tbe accused from a judgment of conviction of murder in tbe second degree of tbe Supreme Court of tbe District of Columbia in a prosecution for murder.</p> <p>Tbe facts are stated in tbe opinion.</p>

The Court in the opinion stated the facts as follows: This is a writ of error to the police court, wherein the defendant, Athol li. Ellis, plaintiff in error here, was convicted under an information charging him with indecent exposure. The testimony of the prosecuting witness tended to show that the offense occurred one forenoon in an apartment house, where she was employed by a tenant.

Hearing on an appeal by tbe relators from a judgment of the Supreme Court of the District of Columbia, dismissing a petition for a writ of mandamus to compel the Secretary of the Interior to issue a patent for coal lands of the relators.

Hearing on an appeal by tbe respondent, tbe assessor of tbe District of Columbia, from a judgment of tbe Supreme Court of tbe District o.f Columbia directing tbe issuance of a writ of mandamus to compel bim to issue a license to tbe relator.

<p>Hearing on an appeal by the defendants, the Secretary of the Interior, and Commissioner of the General Land Office, from a decree of the Supreme Court of the District of Columbia, enjoining them from proceeding to determine the character of land covered by unpatented mining claims in which the complainant claimed an interest.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from a decree of the supreme court of the District restraining the Secretary of the Interior, Franklin X. Lane, the Commissioner of the General Land Office, Clay Tallman, their successors in office, and all persons claiming to act under their authority, from proceeding to determine the character of land covered by six unpatented mining claims in the Grand Canyon, in the State of Arizona, in which appellee, Ralph II. Cameron, asserts an interest.</p> <p>In his hill appellee sets forth the pendency in the Land Office of six certain proceedings in which the United States is plaintiff and he one of the defendants, involving the several lode and placer mining claims enumerated in his bill; that these locations are unpatented claims held by him and his associates under the mineral laws of the United States; that each year they have done at least $100 worth of work “which tended to develop the mineral contents of said claims;” that the jurisdiction of the Department has not been invoked in any way for the purpose of claiming the fee-simple title to the land embraced in the claims, or for any other purpose; that by reason of the location of such mining claims the locators obtained by operation of law vested a right and property in the claims and the lands embraced within their boundaries, giving to the holders of such claims “the right of possession” to all such land; “that such title is a complete and independent legal title, separate from, unattached to, and independent of, any title held by the United States in or to said ground * * * ; that the attempt of the defendants in this case to proceed with the said contests is an unlawful, unauthorized, and unrighteous effort to interfere with the vested, legal, complete, entire, and perfect right, title, interest, and property of this plaintiff and his co-owners, and tends to cloud and does cloud the title of plaintiff and his co-owners; and the actions of the defendants herein complained of constitute an attempt to deprive the plaintiff and his co-owners of their property without due process of law * * * ; that the plaintiff and his co-owners are satisfied and content with the vested title, right, estate, and property which they have already acquired from the United States of America; that plaintiff and his co-owners do not wish, and may never desire, to acquire the- said described title so remaining in the United States of America.” It is further set forth that upon the institution of said proceedings in the local land office at Phoenix, Arizona, due notice having been given locators, pleas to the jurisdiction were filed and overruled.</p> <p>Appellants interposed a motion to dismiss the hill; the several grounds of the motion being, first, want of equity; second, the legal title to the land in question still being in the United States, all questions as to the status of said land are cognizable in the Land Department, and as it appears from the bill that there now is pending before that Department a proceeding to ascertain the status of the land involved and the existence and validity of the claim of interest therein asserted by the plaintiff, the bill should be dismissed; third, that the exercise of judgment and discretion by' the Department is not reviewable by any court, either of law or equity; and, fourth, that even if appellants have no jurisdiction and if said proceedings are void, as averred in the bill, the action of appellee is premature. Appellants electing to stand upon their motion to dismiss, the court entered the decree above mentioned' and this appeal' folfowed.</p>

Hearing on an appeal by the relator from a judgment of the Supreme Court of the District of Columbia dismissing a petition for the writ of mandamus to compel the commissioners of the District of… Held: however, that where the disease was not contracted, but merely aggravated, in the line of duty, relator was not entitled, under the provisions of the aforegoing act of Congress, to a pension.

Hearing o-n an appeal by tbe plaintiff from a decree of tbe Supreme Court of tbe District of Columbia in favor of tbe defendants in a suit in equity to enjoin tbe sale of certain real estate under deeds of trust and for an accounting. Tbe facts are stated in tbe opinion.

Hearing on an appeal by the plaintiff from an order of the Supreme Court of the District of Columbia quashing the service of process upon the defendant and dismissing the cause for want of jurisdiction.

<p>Hearing on an appeal (specially allowed) from an order of the Supreme Court of the District of Columbia overruling a motion to dismiss a bill in equity for the construction of a will and to remove an alleged cloud on title created by the conveyance in fee of real estate by one of the devisees, who, it was alleged, took only a life estate in such real estate under the will.</p> <p> .Reversed. </p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is a special appeal [by Thomas P. Brown] from a decree in the supreme court of the District overruling a motion to dismiss appellee’s bill.</p> <p>According to the averments of the bill, Adolphus Gr. Wells died in the District of Columbia in 1901, leaving as heirs ai laio and next of kin a brother, Christopher C. Wells, of Dos Moines, Iowa, since deceased; a niece, Cecilia Ilurxthal, of Chicago, Illinois; the appellee, Cassius L. Wells, son of said Christopher C. Wells; Carrie Ilurxthal Archibald, a great-niece, daughter of said Cecilia Ilurxthal; and Virginia Archibald, a great-great-niece, the daughter of said Carrie Ilurxthal Archibald.</p> <p>In clause 1 of his will the decedent directed the payment of his debts. By clause 2 he bequeathed to his nephew Cassius L. Wells, the appellee herein, $1,000, and, by clause 3, $500 was left to his brother, said Christopher C. Wells. Clause 4 reads as follows:</p> <p>“I devise and bequeath to my niece Cecilia Ilurxthal of Chicago, Illinois, the rents and profits of my two houses No. 489 and 491 on G street S. W. Washington, D. C., during her natural life, and hereby nominate and appoint William B. Yoder, of the city of Washington, D. 0., as trustee to take possession and full charge of said property, rent the same, collect the rents, make all necessary repairs as in his judgment may be deemed best, pay all taxes and other lawful expenses, and remit the balance of rent, less 10 per cent commission on the gross amount, to said Cecilia Hurxthal.”</p> <p>By clause 5 the testator bequeathed to his great-niece, Carrie Hurxthal Archibald, $2,000, and, by clause 6, $400 to his great-great-niece, Virginia Archibald. By clause '7 he directed the cancelation of all evidence of indebtedness from his friend, Mr. Washington O. Berry. Clause 8 directed that he be buried in Bock Creek Cemetery, and provided for the erection of a monument at a cost of $1,000. Clause 9 reads as follows:</p> <p>“After the foregoing shall have been fully carried out and settled, I devise and bequeath the residue of my estate, real, personal, or mixed wherever the same may be found, and which I may die seised of, unto my niece Cecelia Hurxthal of Chicago, Illinois, named as the beneficiary in item 4 hereof.”</p> <p>After the payment of the legacies and other charges there remained more than $5,000 in personalty to pass under the residuary clause. The bill as originally filed alleged that in addition to the personal property the decedent died seised of the two parcels of real estate mentioned in clause 4 of the will, “and none other.” Later the bill was amended by striking out the words, “and none other.”</p> <p>• The bill alleges that at the time of executing his will testator was seventy-eight years of age, and that it was made during his last illness; that he was a man without legal experience and without familiarity with the meaning and effect of legal phrases in the creation of estates by will or otherwise; that he relied upon the advice of Charles T. Yoder, who drafted the will and who was named as executor thereof ;• that Mr. Yoder was equally unfamiliar with the technical meaning and effect of legal phrases in the creation of estates by will or otherwise; that it was the intention of the testator to die intestate as to the reversion after the termination of the life estate created by the 4th item of the will, and that he had so- stated his intention at the time of its execution, being advised by Mr. Yoder that such was the effect of the language used; that all the beneficiaries under the will had acquiesced in such construction until a long time after the death of testator.</p> <p>The conveyance of the fee in said parcels of real estate by Cecilia Hurxthal and William B. Yoder, trustee, to John Fitzmorris, and by Mr. Fitzmorris to appellant Thomas B. Brown, is set forth. It is- alleged that these conveyances constitute a cloud on appellee’s title to the reversionary interest in said real estate- as one of the heirs of the testator. It is prayed that the deeds to Fitzmorris and appellant be declared to vest nothing more than an interest or estate for the life of Cecilia Hurxthal, and that the will be construed accordingly. A motion to dismiss was filed, which having been overruled this special appeal was granted.</p>

Hearing on an appeal from a decree of the Supreme Court of the District of Columbia dismissing an amended bill in equity to establish a lien upon a fund in the custody of the defendant, the Secretary of the Treasury. ■ The facts are stated in the opinion.

Hearing on an appeal by tbe defendant from an order of the Supreme Court of the District of Columbia awarding alimony pendente lite to the plaintiff in a suit for divorce. The Court in the opinion stated the facts as follows: This is an appeal from a decree awarding temporary alimony in a suit for divorce. Plaintiff, Jeanette M. Jacobi, filed suit for divorce November 1, 1915.

<p>Hearing on an appeal by tbe defendants from a decree of tbe •Supreme Court of tbe District of Columbia declaring tbe title of tbe defendants to certain real estate to be subject to a perpetual easement for alley purposes in tbe plaintiff. •</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 declaring the title of appellants, Edward O. Scaggs and Marion E. Scaggs, in a certain strip of land to be subject to a perpetual easement for alley purposes in appellee, James B. Gallagher, appellee.</p> <p>From the evidence in support of the bill the following facts appear: On and prior to July 1, 1883, the title to block 7 in Todd & Brown’s subdivision in the District of Columbia was vested in Algernon li. McChesney and Henry Bakersmith, as trustees for the Enterprise Building Company, an unincorporated association, with power to sell and convey at their discretion. This block fronts on Georgia avenue, formerly Seventh Street road, extending to Sherman avenue, its southern boundary being Irving street, once known as Wallach street. For the purpose of sale the block was divided into parcels, lot 1 being divided into three parcels and marked respectively “Gallagher,” “Westermeyer,” and “Scaggs,” on the following diagram taken from the records:</p> <p> </p> <p>It will be observed that the Gallagher and Westermeyer parcels front on Georgia avenue, and that in the rear is an alley 10 feet wide and extending from the north line of Irving street, to the north line of lot 1.</p> <p>The first parcel transferred was that marked “Gallagher,” which was conveyed June 13, 1883, to John W. Payne. In the deed the parcel is described as being bounded on the west by an alley, and with the parcel was conveyed “all the improvements, ways, easements, privileges, rights, appurtenances, and hereditaments to the same belonging or in anywise appertaining.” By deed dated September 6, 1883, this parcel was conveyed to the appellee Gallagher, the description in the deed being the same as in the deed from the trustees to the grantor. Thereupon, Gallagher built a dwelling house on the front of his lot and in the rear erected a shed having a door or gate opening'into said alleyway.</p> <p>Thereafter, on November 4, 1886, the title to the Scaggs parcel was conveyed to the appellant Edward O. Scaggs, and a dwelling was erected thereon by him, the proof showing that “Scaggs and his wife always fully recognized the existence of said strip of land as a private alleyway * * * for the benefit of the three parts of said lot 1, into which it had been subdivided and sold.” Neither Scaggs nor his wife ever claimed or asserted any right or interest in this alley other than as owners in common with the appellee and the owner of the Westermeyer parcel, until after August, 1914, a period of approximately twenty-eight years.</p> <p>Bakersmith, one of the trustees, having left the jurisdiction (it does not appear whether or not he still is living), the other trustee, MeChesney, was annoyed by being sent bills for taxes on this alley. In 1910 Mr. MeChesney wrote the District authorities that the trustees had offered “to donate this property to the District of Columbia for an alley, for which purpose it was originally left years ago,” but it appeared they had not accepted it; that so far as he was concerned he had nothing whatever to do with it. Mr. MeChesney testified that in the month of August, 1914, Mr. and Mrs. Scaggs represented to him that Mr. Gallagher had bought the alley for taxes (which was not the fact), and intended to close it, and to prevent such closing they requested him, MeChesney, to give them a deed therefor; that they referred to the strip as an alley, and that he finally executed a conveyance to them as joint tenants in fee without consideration and with the understanding that “it was meant to be used and conveyed for no other purpose than that of an alleyway.” There was further testimony tending to show that during all the years subsequent • to the sale of the three parcels before mentioned this alley was well defined, that it was used in common by the owners of the different parcels, and that it was reasonably necessary to the enjoyment of the Gallagher lot.</p> <p>Appellants contented themselves with offering in evidence their deed to the “Scaggs” parcel and the deed of August 19, 1914, to said alley strip. All the foregoing deeds had been duly recorded.</p>

<p>Hearing on an appeal by the defendant from an order of the Supreme Court of the District of Columbia granting the wife separate support and maintenance in a suit by her for that purpose.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>Ethel Bruce Marschalk filed her bill May 5, 1914, against Andrew E. Marschalk, alleging abandonment by defendant, and praying for an order for maintenance.</p> <p>Defendant answered the bill, denying ill treatment of the plaintiff, and alleges that he has always been willing to provide for her, and that plaintiff had refused to grant him the rights of a husband, and that being together became intolerable; that they entered into an agreement for a separation.</p> <p>The testimony of the plaintiff tended to show cruel treatmew't by the defendant, and his abandonment of her, and that she in willing to receive him back in the house in Lexington place, where their home was established.</p> <p>In August, .1913, the parties signed an agreement by which the defendant promised to pay plaintiff thirty ($30) dollars per month for her support. Other testimony was offered tending to show that in January, 1915, plaintiff expressed a desire to meet defendant and conduct a reconciliation; at the timé of the marriage plaintiff and defendant purchased the house in Lexington place; that plaintiff paid out of her separate funds the one thousand ($1,000) dollars cash payment thereon, and she and defendant entered into an agreement for the monthly payment of thirty-five dollars and fifty cents ($35.50) until the house should be paid for. They made their home in said house until the defendant’s departure, but plaintiff still lives there. Defendant testified that he had refused to live in the Lexington place house because of plaintiff’s relations with the neighbors, and on account of his wife’s conduct. That he requested her to move, and that he wrote her, saying that he had leased a house at 129 Sixth Street Southeast, and inclosed her a copy of the lease; that the lease is still in force, and he had offered plaintiff a home there with him and was anxious for her to take up' her residence there with him, leaving the present home and attempting to sell or rent it.</p> <p>Upon this evidence the court delivered an opinion stating his belief that the troubles of the parties might be easily reconciled, and that they might live together harmoniously. He entered an order requiring defendant to pay plaintiff forty ($40) dollars per month for her support, and from this he has.appealed.</p>

<p>Divorce; Condonation.</p> <p>1. A decree dismissing a bill by the husband for a divorce for alleged adultery by his wife was affirmed on the ground that the charge had not been sustained.</p> <p>2. Where a husband condoned an offense by his wife which would have been ground for divorce, upon condition that she would obey him and be a good and faithful wife to him and perform her household duties, and the subsequent failure of the wife to fulfil such conditions was as much his fault as hers, it was held in a suit by him for divorce that he could not invoke the rule as to revival of condoned offenses.</p>

Hearing on an appeal by the defendants from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover damages for breach of a contract of employment.

<p>Wills.</p> <p>1. In the construction of a will, the court will place itself as fully as possible in the situation of the person whose language it is to interpret, and, guided by the light thus thrown upon the testamentary scheme, it may find itself justified in departing from a strict construction of the testator’s language, without allowing conjectural interpretation to usurp the place of judicial exposition.</p> <p>2: The court’s interpretation 'of a will will not be controlled by the statement in the bill filed by the executors for its construction, as to the ■ interpretation desired by one of the parties interested, especially where such interpretation would be at variance with the claim of such party in her answer to the bill, and it also appears that many parties interested are before the court only in the person of the executors.</p> <p>3. By his will dated June 26, 1913, a testator bequeathed to his wife “600 shares of the stock of the Standard Oil Co. of New Jersey and a pro rata (600/983383) of the stocks of all the companies formerly subsidiaries of the Standard Oil Co. of New Jersey of which I am the owner at the time of my death,” and also to her in trust for her son by a former husband “200 shares of the stock of the Standard Oil Co. of New Jersey and a pro rata (200/983383) of the stocks of all the companies formerly subsidiary to the Standard Oil Co. of New Jersey of which I am the owner of stocks at the time of my death.” At the date of his death his family consisted of his wife, her son by a former husband, a married son by a former wife, and a grandson. His estate of several million dollars included 2,478 shares of the capital stock of the Standard Oil Co. of New Jersey, of which there had been issued and were outstanding 983,383 shares, and certain shares of the capital stock of former subsidiary companies. Several years previously, that company, which had held all of the stock in most of such subsidiary companies and some of the stock in others, had, as a result of legal proceedings, distributed such stock pro rata among its own stockholders, and thereafter from time to time the subsidiary companies had increased their capital stock and either distributed such increase among their stockholders in the form of stock dividends, or sold it to them at par in proportion to their holdings. The testator in each case of such increase acquired such part of the additional stock, either in the form of stock dividends, or by purchase at par, as his holdings entitled him to. Prior to the execution of his will the testator had sold his shares in one of the subsidiary companies and thereafter he sold certain fractional shares in another company. Except for these sales, he maintained at all times, and until his death, his ownership of 2478/983383 of the total issue of shares in the subsidiary companies. In a suit by the executors for the construction of the will, it was held, that the words “of all the companies formerly subsidiaries of the Standard Oil Co. of New Jersey,” as used-in the will, were merely words of description and identification, and not words of limitation, and that the widow of the testator and his stepson were entitled to the same fixed proportions — 600/983383 in the case of the widow and 200/983383 in the case of the stepson — of the shares of stock in the subsidiary companies of which the testator died possessed, as he gave them in the shares of the Standard Oil Company of New Jersey.</p>

<p>Executors and Administrators; Assignments; Life Insurance; Public Policy; Affidavits.</p> <p>1. At common law an executor or administrator had absolute power of disposal over all personal property coming into his hands, including ehoses in action, and sales by him protected purchasers, except where fraud appeared; and statutes providing for the granting of decrees of court as to sales are generally construed to be for the protection of the executor or administrator, and not as a limitation of his power.</p> <p>2. Section 323, D. O. Code (31 Stat. at L. 1240, chap. 854), providing that no executor or administrator shall sell any property of his decedent without first procuring an order of the probate court, and that any sale made without such an order shall be void and pass no title to the purchaser, does not affect the validity of an assignment made in New Jersey to the insured of a policy of insurance by the administrator there of the beneficiary, so as to prevent such assignment being set up as a defense to an action brought here by the New Jersey administrator against the insurance company after the death of the insured.</p> <p>3. Where an affidavit of defense is made in good faith and makes out a prima facie defense, a summary judgment for the plaintiff will not . be granted. (Citing Codington v. Standard Bank, 40 App. D. C. 411.)</p>

<p>Equity; Wills; Actions; Cloud on Title.</p> <p>1. Equity will not assume jurisdiction to construe wills except as an incident of its general jurisdiction over trusts; and heirs at law and devisees who claim a mere legal estate will not be allowed to come into a court of equity for the sole purpose of obtaining a construction of a will, but must assert their title by legal action, or, if in possession, await an attack by hostile claimants. (Following Jordan v. O’Brien, 33 App. D. C. 189.)</p> <p>2. A bill in equity by the heir at law of a decedent against .the grantees named in certain deeds, to remove the cloud from title alleged to have been created by the deeds which were executed by the decedent before his death, but not delivered by their custodian until thereafter, is not only prematurely brought, but shows no such interest in the property involved as will entitle the plaintiff to maintain the suit, where it appears that whether the grantees in the deeds will take the property under the will of the testator will depend upon a construction of the will, and the will has not been admitted to probate.</p> <p>Note. — On equity jurisdiction of bills for the construction of wills oí real property passing only legal estates, see note in 15 L.R.A. (N.S.) 599.</p>

Hearing on an appeal by tbe defendant from a judgment of the Supreme Court of the District of Columbia in an action by an administratrix to recover damages for the death of her intestate.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia for the plaintiffs, on verdict, in a case appealed to that court from the Municipal Court. 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 sitting as an equity court requiring the defendant to pay to codefendants a specified sum as liquidated damages, and requiring the trustee to reconvey land to such defendants.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This appeal is from a decree of the supreme court of the District of Columbia in an equity cause instituted by the Washington Loan & Trust Company, trustee under a deed to it executed pursuant to a contract between appellant, Arthur E. Handle, and the owners of the land thereby conveyed in trust.. The owners are known as the Scaggs heirs, and will hereafter be referred to as such.</p> <p>It appears that in 1909 the Scaggs heirs, owners of certain lands in the District of Columbia, entered into a contract with appellant, whereby he was to have the sole, right for a period of five years to subdivide said land into lots, blocks, and squares, including streets, avenues and alleys, and to sell the same at not less than 6 cents per square foot. The subdivisions were to be approved by William C. Woodward and Oscar Luckett before they were to be filed for record. The contract provided that “all streets, avenues, .alleys,, and lots in any and every subdivision .shall conform to the plan, marked, ‘Suggested subdivision of Seaggs tract, Henning, District of Columbia, August 10, 1907/ copies of which are in the possession of both parties.” All expense of platting, advertising, developing, and selling the land, and the compensation of the trust company for acting as trustee, were to be borne by appellant. Appellant was to receive for his services all of the proceeds in excess of 5 cents per square foot derived from the sale of the lands sold during the first two and one-half years, and all over 6 cents per square foot for the remaining two and one-half years.</p> <p>Appellant further agreed to effect sales of the land, as follows : Not less than 10 per cent of the entire area by the end of the first year; not less than 30 per cent by the end of the second year; not less than 50 per cent by the end of the third year; not less than 75 per cent by the end of the fourth year, and all of the .remaining land at the end of the fifth year. The only penalty provided by the contract for failure of appellant to comply with its terms was its termination as to unsold lands.</p> <p>In January, 1911, the trust company filed its bill in equity against the contracting parties, averring the failure of appellant to perform his contract, and praying for a construction of the contract and deed, and a definition of the rights, duties, and powers of the parties. The Seaggs heirs answered that appellant was in default, and that the contract had been forfeited; while appellant answered, charging the owners with default due to defendant T.uckett’s refusal to approve the subdivision plat, so it could be recorded.</p> <p>A large amount of evidence was taken, but before trial a compromise agreement, dated March 30, 1912, was entered into by the parties. The preamble recited the purpose of the new agreement to be to settle and compromise the differences respecting the construction of the former contract. The original contract was continued in force subject to numerous modifications contained in the new contract. The dates of the old contract for performance of its conditions by appellant were carried forward to conform to the date of the second agreement.</p> <p>The evidence discloses that prior to the new agreement appellant had a plat of subdivision, of 30 acres of the Scaggs land prepared by the surveyor of the District of Columbia. This subdivision adjoined the land of one Matthew Cook. The adjoining tracts were so situated that it seemed advisable to have Cook dedicate Thirty-fourth street through his land for the mutual benefit of all of the parties concerned.</p> <p>The provisions of the new contract material to this appeal are that the Scaggs heirs shall “cause to be approved by William C. Woodward, Oscar Luckett, and Charles H. Merillat the plat heretofore prepared by the surveyor of the District of Columbia of 30 acres, more or less, of the Scaggs tract and filed in said equity cause as ‘exhibit W. J. L. No. 3; and will deposit the plat thus approved with the Washington Loan & Trust Com'pany, or some other depository mutually agreed upon by the parties of the first part, and the party of the second part, in escrow, on condition that it may be recorded in the office of the surveyor of the District of Columbia by said trust company, or other depository, as the official subdivision of the land coincidentally and not otherwise, with the recording of the dedication of Thirty-fourth street, as laid down in the official street extension plan, through the Cook tract from the Benning road to the Scaggs tract, aforesaid, the width of Thirty-fourth street to be the same as' to both the Cook and the 30-acre Scaggs Tracts.”</p> <p>. The contract further provided that appellant should furnish either a surety company’s bond in the sum of $6,000, or first mortgage securities aggregating $7,500, “as collateral security for the faithful performance of the agreement aforesaid of June 10, 1909, and of this agreement during any one of the first four years; said collateral security, whether a bond or first mortgage securities, to be conditioned that in the event of the default on the part of the party of the second part not caused by any act or default in violation of the terms of these agreements on the part of the parties of the first part or said William C. Woodward, Oscar Luckett, or Charles H. Merillat, said collateral security shall immediately become and be the property of the parties of the first part to the amount of $6,000 net over and above all costs and charges, which amount shall be liquidated damages, and not a penalty. And it is understood and agreed that the collections of said liquidated damages for which said collateral security is herein provided shall immediately be enforceable in said equity cause now pending in court.”</p> <p>A further provision of the contract retained the equity cause open for the entering of a decree forfeiting the security to the owners should the appellant “make default in carrying out the terms and provisions provided to be done during any one of the first four years of the life of said original agreement as modified and supplemented by this agreement.”</p> <p>In October, 1912, the trust company filed a supplemental bill in the original cause, in which it averred that appellant “has refused, neglected, and does still refuse and neglect, to comply with the terms of said agreement of compromise, so far as the same is binding upon him,” and prayed that appellant be required “to specifically perform the terms of the agreement of March 30th, 1912.”</p> <p>Appellant answered, denying that he had failed to perform his contract, but averred 'that on March 30, 1912, he obtained the Cook plat from Cook and deposited it in escrow with the Continental Trust Company, to be recorded coincidentally with the Scaggs plat; that Luckett was notified of the deposit of the Cook plat; that the plat remained on deposit until July 6, 1912, when Cook withdrew it, and “that since the filing of the supplemental bill herein, on the 24th day of October, 1912, this defendant again secured from Cook the said plat and returned it to the Continental Trust Company under the same escrow conditions.”</p> <p>The Scaggs heirs answered, and later filed a cross bill, in which appellant was charged with violating his contract in failing to give the security of $6,000 and in not procuring the dedication of Thirty-fourth street through the Cook land. They prayed that appellant be decreed to pay them $6,000, with interest, and be required in addition to procure and make dedication of Thirty-fourth street, or, in default, to pay the damages to be assessed by the court, and that the trust company be decreed to reconvey the land.</p> <p>On hearing, the decree appealed from was entered, requiring appellant to pay the $6,000, as liquidated damages, and directing the trust company to reconvey the land.</p>

<p>Patents; Patentability; Interference; Abandoned Experiment; Reduction to Practice; Conception.</p> <p>1. There is nothing patentable in having two sides of a steel ingot substantially parallel and the other sides tapering, unless some useful object is to be attained. Mere facility in handling will not constitute such an object, as any mechanic would know that it would be easier to handle and work an ingot having parallel sides than one whose sides are tapered.</p> <p>2. Where one of the parties to an interference involving an invention of a method of casting steel ingots so as to prevent “piping” or the formation of hollow spaces in the center of the metal caused by the more rapid cooling of the outer than the inner metal, the result being accomplished by making two of the sides of the ingot and mold approximately straight and parallel and the other sides relatively tapered, produced a mold and a few ingots before the date of the reduction to practice by his adversary, which had the characteristics of the invention of the issue, but used the mold with the big end down, or exactly opposite to the teachings of his specifications; and thereafter scrapped and destroyed the mold ánd the ingots made from it, it was held that the production of the ingots was not only nothing more than an abandoned experiment, but that the making of such mold and ingots failed to show that such party then had a conception of the invention.</p> <p>3. In an interference proceeding, in order to determine whether one of the parties had a conception of the invention of the issue, it is proper to refer to his specifications to ascertain what advantages he claims for the construction described and how the invention is practised. (Citing Andrews v. Nilson, 27 App. D. C. 451.)</p>

<p>Patents; Interference; Reduction to Practice.</p> <p>In an interference involving an invention relating to controlling apparatus for hydraulic variable speed gear devices or power-driven mechanism, where the question was as to whether one of the parties, prior to the construction and reduction to practice of his adversary, had constructed and successfully operated a full-sized device embodying the issue which he claimed to be an actual reduction to practice, and such party introduced his device in evidence, and also introduced evidence, which was not disputed, tending to show that the tests he had made of it had demonstrated its utility for any purpose • to which such an apparatus could be applied; and the prima facie case thus made out was not rebutted by the other party by the calling of a witness who had knowledge of the tests and the circumstances under which they were made, or by an actual test of the apparatus which was in evidence,— it was held that the party claiming actual reduction to practice was entitled to an award of priority. (Citing Stanbon v. Howe, 34 App. D. C. 418; and Smith v. Kihlgren, 43 App. D. C. 193.)</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 rejecting certain claims in an application for a patent.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>Appeal from a decision of the Patent Office rejecting claims 1, 3 to 9 inclusive, 11, 13, 16 to 21 inclusive, 23, 25, and 21 an application for patent. Claims 1 and 13 sufficiently illustrate the claims involved and are here reproduced:</p> <p>“1. In an apparatus for removing nongaseous particles from the products of combustion from boilers, a boiler, a stack, and a chamber of relatively very large proportion as compared with said boiler and said stack through which said products of combustion from said boiler pass and expand before entering said stack, whereby the velocity of said products of combustion is reduced sufficiently to effect a deposition of nongaseous particles carried thereby.”</p> <p>“13. In an apparatus for removing nongaseous particles from the products of combustion from boilers, a boiler, a stack, and a chamber of nonheat-conducting material of relatively very large proportions as compared with said boiler and said stack through which said products of combustion from said boiler pass and expand before entering said stack, whereby the velocity of said products of combustion is reduced sufficiently to effect a deposition of nongaseous particles carried thereby.”</p> <p>The object of the invention is the removal of soot and other nongaseous substances from the products of combustion from boilers without materially decreasing the draft. In his specification appellant, Thomas Grieve, sets forth that it is his intent to accomplish the desired result “without the use of deflecting plates, walls, water sprays, or other obstructions which will decrease materially the draft in the stack by their interference with the flow of said products of combustion;” that it also is his intent to avoid such loss of heat from such products of combustion as will increase their specific gravity and lessen the normal draft in the stack. He further states that it was well known that swiftly moving currents of fluid or air will carry heavy substances which will be dropped if the velocity of the current slackens. He also concedes to be old the idea of providing a very small space in boilers between the fire and the boiler, to prevent ashes and coals from entering and clogging the boiler flues, but insists that such spaces are purposely small in order not to interfere with the draft. It likewise is conceded to be old to provide chambers in metallurgic furnaces to recover mineral from the gases, but it is pointed out that the question of draft is not considered in the construction of such chambers; that, on the contrary, they are cooling chambers to cause the mineral to deposit, which would destroy entirely any draft in the stack. The specification continues: “It never has been considered possible, however, to lessen the rate of flow in the products 'of combustion from boilers sufficiently to remove all the lighter particles from the products of combustion without destroying the draft necessary to be maintained. I dicovered I could do this by the use of a chamber of exceedingly large proportions and affording space for expansion in all directions. I also discovered that I could increase the effectiveness of the deposit without interference with the draft by changing the direction of flow of the expanded gases. The preservation of the heat of the gases is a material aid in maintaining the necessary draft in the stack, which I have facilitated by constructing the chamber of nonheat-conducting material.”</p> <p>Among the references cited by the Examiner was a patent to Worm, No. 1,092,551, issued April 7, 1914, on an application filed May 24, 1912, covering a cement-manufacturing apparatus. Thereupon appellant filed affidavits, under rule 75 of the Patent Office, which enables an applicant to avoid a patent by making oath to facts showing a conception of the invention in this country before the filing of the application on which a domestic patent was granted, or before the date of a foreign patent, or before the date of a printed publication, that he neither knows nor believes that the invention has been in public use or on sale in this country or patented or described in a printed publication in this or a foreign country- for more than two years prior to his application; and that he never abandoned his invention.</p> <p>In appellant’s affidavit he stated that before the filing date of the Worm application he made oral disclosure of one embodiment of his invention, which involved an existing battery of boilers and stack, and comprised the interposition of a large chamber between the two of such dimensions as to reduce the velocity in the chamber of the products of combustion from the boilers sufficient to effect the deposition of nongaseous particles carried thereby, without lessening appreciably the draft in the stack; that, in addition to this, the chamber was so constructed as to conserve the heat of the gases therein.</p> <p>In the supporting affidavit of Mr. E. L. Antisell, mechanical engineer and assistant superintendent of the Raritan Copper Works, Perth Amboy, New Jersey, it was stated that, for “the past four or five years” (that is, from 1910 or 1911, the date of the affidavit being April, 1915), his company had experienced considerable difficulty owing to the deposit of soot and dust from its smokestacks, and that it had been in constant receipt of complaints from the inhabitants of Perth Amboy; that various expedients had been tried as the result of an investigation of other plants and other methods. We now quote from the affidavit: “All the various devices used and investigated not only failed to prevent the deposit, but seriously impaired the draft of the stack to which they were applied. On or about March 12, 1914, we installed a Grieve Dust Collector on one of our stacks, the deposit from which was so bad that the workmen were obliged to turn up their collars when passing it vicinity. This stack is 175 feet high, about 12 feet in diameter, and receives the products of combustion from a boiler of about 2,500 horse power. The Grieve Dust Collector installed comprises a chamber of hollow, tile about 38 feet square, with the stack approximately at its center. The products of combustion enter the chamber at one end, pass down each side of the chamber, and enter the stack through an opening in the stack on the opposite side of the stack from the opening into the chamber. We take out of the chamber 4 or 5 tons daily of deposit, which we burn again by mixing with a certain proportion of soft coal. The draft of the stack is not impaired, and the various tests show a high degree of efficiency. * * * The complaints have ceased, and the Grieve Dust Collector has been so successful that plans now are being made to apply a similar device to a 200-foot stack connected to a boiler having 4,000 boiler horse power.”</p> <p>The affidavit further stated that previous to May 24, 1912, appellant disclosed to affiant “one embodiment of his invention which contemplated the placing of a chamber between a battery of boilers and their stack, of such dimension as to reduce in said chamber the velocity of the products of combustion from said boilers sufficiently to produce a deposition of nongaseous particles therein;” that the chamber was to be constructed in such a manner as to conserve the heat of the gases passing there-through.</p> <p>The Examiner did not regard these affidavits as sufficiently explicit. Thereupon appellant filed a supplemental affidavit in which he stated that in the year 1912 he conducted many experiments in order to test his invention, and that previous to May 24, 1912, he endeavored to have, the said Baritan Copper Works install an apparatus embodying his invention, but was unable to get them to do so until they had unsuccessfully tried other devices; that he reduced his invention to practice as soon as he could. The Examiner, however, still refused to accept the affidavits, and the Examiners in Chief, without discussion, rejected them. On appeal to the Assistant Commissioner, he did not deem it necessary to pass upon the sufficiency of these affidavits, but observed that they “did not state whether the construction suggested by applicant was the same as that shown in his application or, if not, what the construction was.”</p> <p>In addition to the claims allowed by the lower tribunals, the Assistant Commissioner allowed claim 2, which we here reproduce: “2. In an apparatus for removing nongaseous particles from the products of combustion from boilers, a boiler, a stack, and a chamber surrounding said stack of relatively very large proportion as compared with said boiler and said stack, through which said products of combustion from said boiler pass and expand before entering said stack, whereby the velocity of said products of combustion is reduced sufficiently to effect a deposition of nongaseous particles carried thereby.”</p> <p>The reasons stated for the allowance of this claim were the statements in the specification to the effect that it is very important that the draft be not lessened, that the chamber walls be constructed of nonheat-conducting materials, and that the placing of the chamber around the stack tends to prevent the cooling of the gases. The Assistant Commissioner said: “It is not believed that the references suggest such a construction. In the fume arresters there is sometimes a cooling effect which would interfere with the normal draft, and in the construction shown in the British patent the settling chamber does not surround the stack, and, moreover, the separation of the solid particles is caused by centrifugal force.”</p>

Hearing on. an appeal by tbe defendant from a judgment, of the Supreme Court of the District of Columbia on an appeal from the Municipal Court in an action by a landlord against his tenant for rent. The Court in the opinion stated the facts as follows: Appellee, Horace H. Westcott, plaintiff below, sued out ■ a writ of attachment against appellant Ella Harding in the municipal court of the District of Columbia to recover the sum of $50 for rent alleged to be due and unpaid.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia entered for want of a sufficient affidavit of defense in an action by a depositor of a banking firm against one of the partners to recover the balance due her. The Court in the opinion stated the facts as follows: Lewis Johnson & Company was a partnership engaged in the banking business in this District. The plaintiff, Julia Wheeler Harris, was one of its depositors.

<p>Patents; Interference; Appeal and Error; Motion to Dissolve; Jurisdiction.</p> <p>1. The right of appeal from decisions of the Commissioner of Patents to this court and the procedure by which such appeals may be perfected are purely statutory, and must be strictly followed.</p> <p>2. The jurisdiction of this court to entertain appeals from the Commissioner of Patents is limited to two classes of decisions; namely, a final rejection of an application for a patent, and the final award of priority to one of the parties in an interference ease. (Citing Re Fullagar, 32 App. D. C. 222, and Cosper v. Gold, 34 App. D. C. 194.)</p> <p>3. If in an interference a motion to dissolve is denied by the Commissioner of Patents, the soundness of his ruling is a question ancillary to the final judgment of priority, and may be considered on an appeal from the final award of priority (citing Podlesak v. McInnerney, 26 App. D. C. 399), but if the motion is sustained, the interference is ended and no cause of action survives or exists upon which an award of priority can be based.</p> <p>4. After an interference has been declared, the Commissioner has the right, on a motion to dissolve, to terminate it, and no appeal lies from his decision in so doing.</p> <p>5. Where in an interference, before any trial, the Commissioner grants a motion to dissolve the interference on the ground of the inoperativeness of the device disclosed by one of the parties, but on the motion of that party, and in order to permit an appeal, changes his order into one awarding priority to the other party, an appeal from such order will be dismissed for want of jurisdiction in the Commissioner to make it. (Distinguishing Cosper v. Gold, supra, and Cosper v. Gold, 36 App. D. C. 302.)</p>

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

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

<p>Patents; Applications; Amendments.</p> <p>1. A pending application may not be amended by the insertion of new matter not embraced in the original disclosure, with a view of having it relate back to the original filing date. (Following Re Dilg, 25 App. D. C. 9; Re Scott, 25 App. D. C. 307; and Re Mraz, 36 App. D. C. 435.)</p> <p>2. Where an applicant for a patent for a push button for electric automobile horns, which will enable the operator to give low or loud signals at will by simply varying the pressure upon the button, seeks by way of amendment to bring into his application certain claims having nothing to do with the production of signals of varying intensity, but relating wholly to the production of a single signal by a tilting motion of the button, and it is not apparent that the tilting action is inherent in the structure as originally disclosed, or that those skilled in the art would, in making the article from such disclosure, naturally so construct it that it would have the capability claimed for it in the new claims, — the amendment will not be allowed.</p>

<p>Hearing on an appeal by tbe petitioner from a judgment of tbe Supreme Court of tbe District of Columbia denying a petition for tbe writ of babeas corpus.</p> <p>Tbe Court in tbe opinion stated tbe facts as follows;</p> <p>Appellant, Lewis H. Webster, filed a petition in tbe supreme court of tbe District of Columbia for a writ of babeas corpus, alleging bis unlawful detention by appellee, Maurice Splain, Hnited States marshal for tbis District, upon a warrant issued on a requisition made by tbe governor of tbe state of Illinois. From tbe judgment denying tbe writ and remanding him to tbe custody of tbe marshal, tbis appeal was taken.</p> <p>The affidavit filed in tbe municipal court of tbe city of Chicago upon which tbe original warrant for appellant’s arrest was issued, reads as follows; .</p> <p>State of Illinois, 1 City of Chicago. jSS’</p> <p>Frank G. Clark, of Í60 W. Jackson Boul. street, Chicago, 111., complains to Arnold Heap one of tbe judges of tbe municipal court- óf Chicago, and being duly sworn and examined on oath, states that L. H. Webster did on tbe lYth day of December, a. d. 1915, at tbe city of Chicago in the county aforesaid, unlawfully and feloniously obtain from Frank G. Clark, tbis complainant, 350 140-pound -sacks of flour of tbe value of eleven-hundred-and ninety and-no /100 ($1,190) dollars, tbe personal goods, chattels, and property of the said Frank G. Clark, by means and by use of the confidence game, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the people of the State of Illinois.</p> <p>This complainant further says that he has just and reasonable grounds to believe and does believe that said L. II. Webster committed said offence.</p> <p>Wherefore, the said Frank G. Clark prays a warrant may issue against the said L. II. Webster according to law.</p> <p>Frank G. Clark.</p> <p>Subscribed and sworn to before me this 30th day of December, a. d. 1915.</p> <p>Arnold Heap,</p> <p>Judge of the Municipal Court of Chicago.</p> <p>I have examined the within complaint and the complainant and am satisfied that there is probable cause for filing the same. Leave is hereby granted to file it, and it is ordered that a warrant issue against the accused.</p> <p>Bail fixed at $3,000.</p> <p>Arnold Heap,</p> <p>Judge of the Municipal Court of Chicago.</p> <p>It is conceded that the requisition papers are regular and in the usual form, but it is urged that appellant is not charged with the commission of a crime under the laws of the State of Illinois. The statute of Illinois upon which the complaint is based (secs. 98 and 99, chap. 38, Hurd’s Bev. Stat. 1915, 1916) provides as follows:</p> <p>“98. Confidence Game. — Every person who shall obtain, or attempt to obtain, from any other person or persons, any money or property, by means or by use of any false or bogus checks, or by any other means, instrument or device, commonly called the confidence game, shall be imprisoned in the penitentiary not less than one year nor more than ten years.</p> <p>“99. Confidence Game; Indictment. — In every indictment under the preceding section, it shall be deemed and held a sufficient description of the offence, to charge that the accused did, on, etc., unlawfully and feloniously obtain, or attempt to obtain (as the case may be), from A B (here insert the name of the person defrauded or attempted to be defrauded), his money (or property, in case it be not money), by means and by usé of the confidence game.”</p>

Hearing ou an appeal from an order of tbe Supreme Court of tbe District of Columbia, sitting as a probate court, granting a petition for tbe revocation of letters of -administration and tbe grant of letters to tbe petitioner. Tbe Court in tbe opinion stated tbe facts as follows: Abbie A. Emery died intestate in tbe District of Columbia July 26, 1915. Application for letters of administration were applied for by one of ber sons, Fred A. Emery.

Hearing on an appeal (specially allowed) from an order of the Supreme Court of the District of Columbia denying % motion by the defendant for an order of discontinuance of an action ex contractu. The Court in the opinion stated the facts as follows: This is a special appeal from, an interlocutory order in the supreme court of the District denying appellant’s motion that suit be discontinued.

Motion to dismiss a special appeal from an order of tbe Supreme Court of tbe District of Columbia denying a motion to dismiss a bill in equity. The Court in tbe opinion stated tbe facts as follows: This is a special appeal, allowed October 7, 1916, from a decree denying a motion to dismiss a bill in'equity.

<p>Equity; Stocks and Stockbrokers; Bona Fide Purchasers; Principal and Agent.</p> <p>1. A customer having a marginal account with stockbrokers, in order to secure the release of certain of his securities, deposited with them other securities and afterwards made a cash payment on his loan. The market value of such other securities and the cash paid move than equaled the market value of the securities to be released. Between the date of such deposit and the date of the cash payment, the brokers received from another customer, with an order to sell and reinvest the proceeds, securities of the same kind as those to be released to the first customer, the certificates being indorsed in blank; and on receiving the cash payment from the latter customer delivered to him the securities so obtained from the second customer. Shortly afterwards the brokers were adjudged bankrupts. In a suit by the second customer to recover his securities from the first customer, it was held that the first customer was a bona fide purchaser for value of the securities, and entitled to them as against the second customer.</p> <p>2. Where a bank lends money to a customer, and, in carrying out his-instructions, uses the proceeds of the loan to take up securities which the customer has on deposit with stockbrokers to secure a marginal account, the agency of the bank is limited to receiving the securities and making the payment to the brokers; and knowledge by the bank of the insolvency of the brokers is not imputable to the customer.</p>

Hearing on an appeal by the plaintiff from a decree of the Supreme Court of the District of Columbia dismissing a bill in equity for an injunction and to remove an alleged cloud on title.