Volume 46 — Appeals, District of Columbia

Hearing on an appeal by the petitioner from an order of the Supreme Court of the District of Columbia dismissing a petition for the vacation of a judgment in a proceeding to condemn land for the purpose of establishing a building line.

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

<p>PATENTS; INTERFERENCE; JOINT INVENTORS; REDUCTION TO PRACTICE.</p> <p>1. Allegation by joint inventors in an interference of conception at a given date is not supported by evidence of conception by one of them as of that date.</p> <p>2, Where, in an interference involving an invention relating to steam blowers for cleaning soot from inclined tubes of water-tube boilers, the evidence showed that one of the parties, before the date of conception by his rivals, built a device embodying the invention and successfully tested it, it was held, that such test was a reduction to practice and that he was entitled to an award of priority.</p> <p>Note,—On right to protection against use by rival of similar design, shell, or pattern not protected by patent, see notes in 19 L.R.A. (N.S.) 209 and 37 L.R.A. (N.S.) 259.</p>

<p>PATENTS; INTERFERENCE; REDUCTION TO PRACTICE.</p> <p>In an interference involving an invention relating to a pipe-drawing apparatus, whore the senior party relied on his filing date for reduction to practice and the evidence showed that the junior party prior to that date had built and successfully operated a device embodying the issue, it was held that the junior party was entitled to an award of priority, although it appeared that after such reduction to practice he had conceived an auxiliary hold-down device for which he was allowed claims, which, however, were not included in the interference. (Citing Celts v. Crosier, 32 App. D. C. 324, and Kirby v. Clements, 44 App. D. C. 12.)</p>

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

Hearing on appeals by the petitioners .from orders of the Supreme Court of the District of Columbia discharging writs, of babeas corpus and remanding the petitioners to the custody of the United States marshal.

<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 lease.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>S. Walter Woodward as plaintiff below sued the defendant, Nejib Hekimian, to recover upon a lease for two monthly instalments of rent of $333.33 eacb. The plaintiff, Woodward, made an affidavit under the 73d Rule that defendant is justly indebted to him for the rent of premises in the Woodward Building, city of Washington, for the months of January and February, 1916, rent amounting to $666.66, which is due and unpaid, exclusive of all set-offs and just grounds of defense. As further particulars of demand, plaintiff filed the following lease, made the 29th day of October, 1915, by and between Brainard W. Parker, “attorney for S, Walter Woodward* party of the first part,” and Nejib Hekimian, party of the second part, whereby the party of the first part, in consideration of the covenants mentioned and rent reserved, has leased and does hereby lease unto the said party of the second part premises described as storeroom No. 1418 H street, N. W., on the first or grade floor, and space in the cellar immediately under said storeroom in the building known as the Woodward Office Building, to be used as a rug emporium and for no other purpose whatsoever, for the term of one year, commencing for the same on the first day • of October, 1915, and terminal ing on the last day of September, 1916, said party of the second part paying as rent therefor the sum of $333.33 on the first day of each and every month during said term at the office of the said party of the first part. Then follow tw'enty-three clauses of covenants by the party of the second part, relating to the payment of the rent, keeping the premises in order, and their occupation, providing against alterations, additions, or improvements.</p> <p>This lease "was executed by Brainard W. Parker, seal, and Nejib Hekimian, seal.</p> <p>An additional memorandum was made on the 29th day of October, 1915, by and betwmen Hekimian and Parker, as attorney for Woodward, the ownei', which witnesses that Tor and in consideration of the letting by Brainard W. Parker, “attorney for S. Walter Woodward,” of the grade floor room known as 1418 IT street, N. W., in tho Woodward Building, and the agreement by the owner of the said building, through his attorney, to furnish to said Hekimian necessary electric current for lighting said leased premises, the said Hekimian does hereby- agree with the said Parker to pay monthly the bill rendered by the said Parker for the electric current furnished, according to the reading of the individual meter installed by the owner for this purpose. It was specially agreed that this agreement shall be considered by the parties hereto as forming a part of the lease aforesaid, and as changing and modifying said lease only in regard to the electric clause.</p> <p>• There are other provisions of the said lease, relating to the payment of rent and the surrender of the premises, notice of removal and leave to vacate by giving notice, etc.</p> <p>As further supplement to the said lease, the party of the first part agrees to provide steam heat from the 15th of October to the 15th of April each year.</p> <p>Defendant demurred to the declaration of the plaintiff, assigning for grounds thereof that assumpsit cannot be maintained on a sealed instrument, and a person not a party to a sealed instrument cannot maintain an action thereon at law. This demurrer was overruled. Defendant filed pleas then: (1) That he did not promise as alleged; (2) that he is not indebted as alleged; (3) that the written instrument sued on was executed and delivered by the defendant upon the express understanding, agreement, and condition that the same was not to be effective until the performance by' Brainard W. Parker, the attorney for the plaintiff, and who is so described in the instrument sued upon, of a certain parol antecedent agreement therefor entered into between this defendant and the said Parker, claiming to act as aforesaid, by the terms of which said agreement the said Parker, claiming to act as attorney as aforesaid, undertook and promised to install in the premises mentioned in the declaration toilet facilities in the basement thereof, or, by cutting an opening in the rear wall of the premises, to give the defendant access to the general toilet facilities afforded all the tenants of the building of which said premises mentioned in the declaration form a part; and by the further terms of which said parol agreement, and as an inducement to this defendant to sign the instrument sued on, which was not signed until long after the beginning of the term attempted thereby to be created, and then only after continued solicitation by said Parker, it was understood and agreed that said instrument should not be regarded as effective or binding upon either party thereto until the completion of the installation of said toilet facilities, or access to the genera L accommodations of the building; and the defendant says that no toilet facilities or accommodations, nor any access to any toilet facilities or accommodations have been furnished in accordance with said parol agreement, and this he is ready to verify.</p> <p>These pleas were accompanied by an affidavit of defense, in which the defendant alleged that said contract never became effective because it was executed and delivered on a condition precedent winch was never performed, as appears-by the statements of the third plea filed herewith, which third plea is-hereby expressly referred to and made a part hereof.</p> <p>The court sustained the motion of plaintiff for judgment, and entered judgment in his favor against the defendant for the sum of $666.66, with interest on $333.33 thereof from the first day of January, 1916, and on $333.33 thereof from the first day of February, 1916, being- the money payable by said defendant to plaintiff by reason of the premises, together with the costs of suit, to be taxed by the clerk, with execution therefor.</p> <p>From this judgment defendant appealed.</p>

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

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

<p>Nearing 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 two decisions of the Commissioner of Patents, one sustaining an opposition to the registration of a mark as a trademark, and the other canceling the registration of a mark as a trademark.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an opposition proceeding brought by appellee, President Suspender Company, to the registration by appellant, Hugh G. Macwilliam, of the trademark “President” for suspenders, on an application filed June 26, 1914. Appellee company also filed a petition for the cancelation of a registration of said mark to Macwilliam under date of May 16, 1899. By consent, the two cases have been heard together. The Examiner of Interferences sustained the opposition, and recommended the cancelation of the 1899 registration. These decisions were affirmed by the Commissioner of Patents, from which this appeal was taken.</p> <p>It appears that a patent for a certain style of suspender was granted to appellant on August 16, 1898. Appellant was at that time engaged in manufacturing the patented suspenders, and had adopted and used as a trademark .thereon the word “President,” printed across a red, white, and blue banner. The mark has always been used in connection with this emblem. On October 1, 1898, appellant by written agreement gave an exclusive license to the C. A. Edgarton Manufacturing Company, which subsequently became the appellee company, to manufacture and sell suspenders containing his patented improvements. The license contract carried with it all orders for suspenders then on hand and all stock, machinery, and material which the licensor had, and contained a provision whereby the “said party of the first part agrees to, and he does hereby, turn over and transfer to the party of the second part, the good will of his present business of manufacturing and selling said suspenders within the United States, and all orders he now has or may hereafter take within the United States for the said suspender.” Under the terms of the contract the license was to continue during the life of the patent, unless sooner terminated under conditions which we need not consider, since the contract was not terminated.</p> <p>The sole question here is whether the license and good will of the business carried the trademark with it. It was more than six months' after the license was granted and appellant had suspended the business of manufacturing and selling “President” suspenders that he procured in the Patent Office, at the request of appellee’s predecessor, the registration of the mark. At no time during the life of the patent did appellant manufacture suspenders, or use the mark in controversy. On the other hand, appellee continued during that period to manufacture the patented article and use the mark. It spent $750,000 in advertising the goods manufactured, sold between thirty and forty million pairs of the suspenders, and paid appellant about $500,000 in royalties. The patent expired on August 16, 1916, and appellant again resumed the business of manufacturing “President” suspenders, and again resumed the use of the mark: hence this action.</p>

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

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

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

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

<p>Trademarks; Descriptive Words; Prior Use as a Tradename; Disclaimer.</p> <p>Where, upon an opposition being made to the registration as a trademark ot a mark consisting of a fanciful geometrical figure between the words “Kingwalt’s” and “Linoleum,” on the ground of prior use of the word “linoleum” as a tradename by the opposer, the applicant amended his application by disclaiming the two words apart from the geometrical figure, it was held, reversing a decision of the Commissioner dismissing the opposition, that the words were not registrable under the Trademark Act, one being the name of an individual and the other descriptive of the goods with which it is used, or the character of such goods; that the opposer had a sufficient interest to justify his opposition; that the effect of granting the application, notwithstanding the disclaimer of the applicant, would bo to give him all the benefits of registration, as the mark which would go out to the public would contain the prohibited words; and that the applicant should have been required to omit the objectionable matter from his mark. (Citing Natural Food Vo. v. Williams, 30 App. D. C. 348; Johnson v. Brandan, 32 App. D. C. 348; Electro Steel Co. v. Idndenberg Steel Co. 43 App. 13. C. 270; and Fishbeek Soap Co. v. Kleeno Mfg. Co. 44 App. D. C. 6.)</p>

<p>Trademarks.</p> <p>These appeals are governed by the decision of the court in Nairn Linoleum Co. v. Ringwalt Linoleum Works, ante, 64.</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>I Leaking 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 Secretary of the Interior to reissue a patent to certain lands.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>Delator, the Southern Pacific .Railroad Company, appealed from a judgment of the supreme court of the District of Columbia denying a writ of mandamus to compel Franklin iv. Lane, the Secretary of the Interior, and Olay Tallman, Commissioner of the General Land Office, to reissue a patent to certain indemnity lands to which it became entitled under the provisions of the Act of Congress of July 27, 1806 (II Stat. at L. 292, chap. 278), entitled, “An Act Granting Lands to Aid in the Construction of a Railroad and Telegraph Line from the States of Missouri and Arkansas to the Pacific Coast.”</p> <p>Section 3 of the act provides: “’That there be, and hereby is, granted to the Atlantic and Pacific Railroad Company, its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores, over the route of said line of railway and its branches, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt, through the Territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any State, and whenever, on the line thereof, the United States have full title, not reserved, sold, granted, or otherwise appropriated, a ml free from pre-emption or other claims or rights, at the time the line of said road is designated by a plat thereof, filed in the office of the Commissioner of the General Land Office; and whenever, prior to said time, any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or pre-empted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the Secretary of the Interior, in alternate sections, and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections, and not including the reserved numbers.”</p> <p>Under the authority conferred by this act, relator company selected a large tract of land embraced within the indemnity limits, which selection was duly approved by the Secretary of the Interior and clear-listed for patent to relator. A patent was issued therefor, which contained the following reservation: “And there is reserved from the lands hereby granted, a right of way thereon for ditches or canals constructed by the authority of the United States.” Relator is seeking to compel the reissue of the patent with this restriction eliminated.</p>

IT making on an appeal in a suit in equity for the foreclosure of a chattel deed of trust from a decree directing receivers, theretofore appointed, to deliver certain personal property to the appellee, an interveuor, which was claimed by it, and also by the appellant, the landlord of the defendant.

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

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action for malicious prosecution, false arrest and imprisonment, and breach of defendant’s duty as a common carrier to the plaintiff as a passenger.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia sustaining motions to dismiss a bill in equity to establish a lien against a treasury warrant.

<p>Contracts; Specific Performance.</p> <p>Where' an aged colored man, who was being cared for by his grandniece, upon her indicating her intention to leave him, stated that if she did so she would get nothing, but if she would stay he was willing to sign a statement from which she would see she would get something, and thereupon one of his two sisters wrote a paper to the effect that at his death he wanted his house and $800 to go to his grandniece, which paper he signed and his sisters witnessed, it was held that the grandniece was entitled to the specific performance of the agreement, after the death of her granduncle, she having remained with him, but that she was not entitled, in addition to the house and money mentioned, to compensation for her services from the date of the paper to the time of his death. (Citing Whitney v. Hay, 15 App. D. C. 164, s. c. 181 U. S. 77.)</p>

Hearing on an appeal,by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action by a physician to recover for professional services rendered. The Court in the opinion stated the facts as follows: Appeal from a judgment in the supreme court of the District in an action by the appellee, James A. Gannon, a physician and surgeon, for professional services rendered an employee of the appellant, the Pittsburg Construction Company.

Hearing on an appeal by one of two defendants from a decree of the Supreme Court of the District of Columbia, in a suit by an executor for the construction of a will. The Court in the opinion stated the facts as follows: Tbis is an appeal from a decree in the supreme court of the District of Columbia.

<p>Hearing on an appeal from a decision of the Commissioner of Patents rejecting claims of a reissue application for a patent.</p> <p>The facts are stated in the opinion.</p>

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

Heading on an appeal from a decision of the Commissioner of Patents denying a petition for the cancelation of a registered trademark. The facts are stated in the opinion.

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

Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia adjudging bim in contempt of court for failure to obey an order requiring bim to'make'payments to be applied for the support of bis infant child, and increasing the amount named in sucb order.

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

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

Hearing oh an appeal by a trustee from'au order of the Supreme Court of the District of Columbia, sitting as an equity court, directing him to pay claims of creditors against the estate.

<p>Hearing on an appeal by a trustee from an order of the Supreme Court of the District- of Columbia, sitting as an equity court, directing him to pay a claim against the trust estate.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>The original bill in this case was filed by R. W. & J. R. Henderson, Inc., against Bose Heeling Hutchins to enforce a mechanics’ lien for certain work done in repairing premises belonging to defendant in the city of Washington. The amount claimed is $720.75.</p> <p>The defendant answered, denying any request of plaintiff by her to perform work or labor for her personally or on her account and that she personally promised to pay for any work that was done upon her premises. She further says that in 1911, and for many years prior thereto, the said premises were the domicil of the late Stilson Hutchins, who was a man of large means; that as the wife of said Stilson Hutchins, and acting solely as his wife and agent, and in relation to the necessaries for his household, for which he alone was liable, a running account with the plaintiff was opened and granted solely upon the credit of said Stilson Hutchins, which account covered a great many items relating to Stilson Hutchins’ household, including the items embraced in this suit, as is shown by an itemized bill of the plaintiff. She further says that at the time the work referred to was done by the plaintiff it had no account on its books, and never has had any in the name of Hose Keeling Hutchins, nor was it requested by defendant to give her credit-in relation to her sole and separate estate, nor did it intend at the time the bill was contracted to look to her individually, or to any property that she might have, for the payment of said work, but said work was done solely on the credit of Stilson Hutchins, deceased.</p> <p>She admits that she is the owner of the premises, but denies that the same are subject to a lien, and denies that she, acting in her own capacity or in her own behalf, in any way or manner ever made any agreement in relation to said work.</p> <p>¡She further says that on the 30th clay of April, 1911, plaintiff probated this claim as a claim against the estate of Stilson Hutchins, and in prosecuting it as such filed a petition in the probate court on the 32th day of June, 1914, asking that the collector of said estate be ordered to pay the said claim, or that it be authorized by the probate court to sue the collector of said estate in an action at law to recover the amount of said claim, and the probate court authorized such suit against the estate of Stilson Hutchins, and such suit was brought by plaintiff, which alleged in its declaration that the claim sought to be recovered was in fact an obligation of the estate of Stilson Hutch-ins, and by reason of that fact the plaintiff is estopped from further prosecuting the claim set forth in this bill against her, and also avers that the plaintiff is guilty of laches.</p> <p>This suit was consolidated with that of Dante against Hutch-ins and others, the subject of which was the administration of the trust estate. The auditor reported therein October 5, 1915, that this claim of Henderson Company had been referred to him. His report recites that a mechanics’ lien was filed against the real property of Mrs. Hutchins for $691.75, and that as to the other portion of the claim, for repairs to furniture, amounting to $148.65, suit had been entered against Mrs. Hutchins in the municipal court. The entire claim, amounting to $840. 40, was proven in the probate court against the estate of Mr. Hutchins. Both of these claims fall within the classes presented in' the former reference and reported on favorably by the auditor for reasons given in his report of January 12, 1912.</p> <p>Dante filed exceptions to the auditor’s réport allowing the claim of Henderson Company as a proper charge against Stilson Hutchins or the estate of Stilson Hutchins, held by said Dante as trustee, and upon other grounds.</p> <p>December 3, 1915, Hose Keeling Hutchins was permitted to intervene in the matter of the claim of R. W. & J. R. Henderson, Inc., against the estate of Stilson Hutchins, in which she reiterated the averments of her former answer, that the articles furnished and Avork done Avere for the use and benefit of the household of Stilson Hutchins, for AA'hich he was personally responsible, and the credit was given to him alone, and she prays that the trustee may be directed to pay the said claim.</p> <p>This was answered by Dante, and on February 29, 1916, the court entered a decree against Rose Keeling Hutchins and the surety on her undertaking, which had been filed to release the lien sought to be enforced by the bill, for the sum of $720.75, with interest from November 9, 1911. It further decreed that the exceptions of William J. Dante, trustee, to the report of the auditor allowing the claim of R. W. & J. R. Henderson, Inc., for $840.40 against the estate of Stilson Hutchins, deceased, be overruled, and the report of the auditor is hereby confirmed, and a decree is granted to said.R. W. & J. R. Henderson, Inc., against the said William J. Dante, trustee, in the sum of $840.40, with interest at 6 per cent from the 9th day of November, 1911, AA'hich sum the said William J. Dante, trustee, is authorized and directed to pay. It is further ordered, adjudged, and decreed that the said Rose Keeling Hutchins be, and she is hereby, subrogated to the rights of the said R. W. & J. R. Henderson, Inc., against the said William J. Dante, trustee, for any money she may pay, or AA'hich may be paid for her, under the decree in equity No. 31,408. And it is further ordered that both causes shall be held open for such further proceedings as may be proper in the matter of said claim of R. W. & J. R. Henderson, Inc., and the subrogation of Rose Keeling Hutchins.</p> <p>From this decree Dante has appealed.</p>

<p>Physicians and Surgeons; Board of Medical Supervisors; Revocation of Licenses; Penalties and Forfeitures; Limitation of Actions; Moral Turpitude.</p> <p>1. The provision of Die Act of Congress of June 3, 1896 (29 Stat. at L. 198, chap. 313), which permits the Board of Medical Supervisors of this District, after a hearing, to revoke the license of a physician who has been convicted of a crime involving moral turpitude, is valid and constitutional. (Citing Czarra v. Medical Supers. 25 App. D. C. 443.)</p> <p>2. The action of the Board of Medical Supervisors of this District in revoking the license of a physician is not invalidated' by the fact that the complaint against him was not formulated by the board, but was filed with the board by the executive committee of the Medical Society of the District. (Construing Act of Congress of June 3, 1896 (29 Stat. at L. 198, chap. 313.)</p> <p>Note.—For authorities discussing the question of license to engage in a profession or occupation as creating a vested right to continue in same, see note in 8 L.R.A. (N.S.) 1272.</p> <p>As to grounds for revocation of physician’s license, see note in 8 L.R.A. (N.S.) 585.</p> <p>3. The revocation of a license to practise medicine is in the nature of a remedial measure for the protection of the public, and is not a penalty or forfeiture.</p> <p>4. The Statute of Limitations only runs from the final act or determination of the action which is invoked as a bar to subsequent proceedings, such as the entry of a final judgment upon the mandate of an appellate court in such action.</p> <p>5. The provision of the Act of Congress of June 3, 1896 (29 Stat. at L. 198, chap. 313), that the Board of Medical Supervisors may issue a new license without examination to a physician whose license it has revoked, at any time within two years after revocation, does not bar a proceeding before the board to revoke the license of a physician who had been convicted of a crime involving moral turpitude, where the proceeding before the board was instituted more than two years after affirmance of such conviction; nor is such a proceeding barred by sec. 1265, D. C. Code (31 Stat. at L. 1389, chap. 854) providing that actions to enforce a statutory penalty or forfeiture can only be maintained within one year after the cause of action accrues; or by the fact that more than three years elapsed between the date of the physician’s conviction in the trial court and the date of the commencement of the proceeding against him before the Board of Medical Supervisors.</p> <p>6. ’ The violation of sec. 211 of the Penal Code (35 Stat. at L. 1129, chap, 321, Comp. Stat. 1916, sec. 10,381) by the sending through the mails of a letter giving information as to where and by whom, and by what means, an abortion may be performed and procured, is a crime involving moral turpitude, within the meaning of the Act of Congress of June 3, 1896 (29 Stat. at L. 198, chap. 313) permitting the Board of Medical Supervisors of this District to revoke the license of a physician who has been convicted of such a crime, and it is immaterial whether the commission of such a crime is a felony or a misdemeanor.</p>

Hearing on an appeal from a decision of. the Commissioner of Patents rejecting claims of a divisional application for a patent. Held: was called for by the issue, and was what Curtiss was aiming to accomplish on the lake at Iiammondsport. Speaking of the object sought by Curtiss, this court said: “To determine whether this test was a reduction to practice of the invention for which Curtiss is now seeking a patent, it is important to consider his application.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia on an agreed statement of facts in an action to recover the value of materials used in the construction of bouses on land of the defendant.

<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 divorce.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>Tbis is an appeal from a decree dismissing a bill for divorce.</p> <p>The bill was filed April 17, 1916, by Giustino Scogna, alleging that be and defendant were married on the 22d day of February, 1905, in Philadelphia, Pennsylvania; that they established homes in Baltimore and other points in Maryland for several years, then returned to Philadelphia, remaining six months, returning to Maryland, and thence removing to the District of Columbia on July 11th, year not given; four children were born of the marriage.</p> <p>The sixth paragraph alleges that defendant in the latter part of May, 1914, was under police observation here as to her sanity, but was permitted to leave the District on June 1, 1914, and return to the home of her father in Philadelphia; that by said act the defendant intended to, and did desert, petitioner; and she has not since shared the petitioner’s bed and board of her own volition, or at all. She took with her two children, Jerome and Lucy. After remaining with her father a while she went to Heading, Pennsylvania; then she went to Chicago, Illinois, where she attracted the attention of the police authorities, and she was adjudged insane. Not being chargeable to Chicago as a legal resident, she was permitted to leave there and returned to the home of petitioner’s mother, where she has since resided.</p> <p>Plaintiff still believes defendant to be of unsound mind and of insufficient responsibility to bo intrusted with the caio of the children. That defendant has on several occasions deserted petitioner and the children, and threatened his life with a revolver.</p> <p>He prays for the custody of the children and for a decree of divorce a mensa et thoro.</p> <p>Defendant answered the bill April 25, 1916, alleging that during the spring of 1914, and following the birth of her last child and as a result of puerperal fever contracted during her childbirth, she became temporarily afflicted in mind as well as body. She says that she was permitted to leave the District June 1, 1914, and that her husband escorted her to the railroad station, purchased her ticket, and gave her a small sum of money with which to go to her father in Philadelphia, under the belief that a sojourn there might improve her health. That so far from said act on her part having been a desertion of the petitioner, the said trip was taken at the instance and request of the plaintiff.</p> <p>Defendant says that her removal from Philadelphia to Heading was necessitated by threats emanating from the plaintiff that he would have her confined in an insane asylum.</p> <p>She admits that she went to Chicago, Illinois, and that she was there cared for in the psychopathic ward of a public institution, where she was to he cared for until she recovered from her illness, but that she was returned by the authorities to Washington, to the psychopathic ward of one of the hospitals in Washington, of which she was legally a resident. That upon return to plaintiff's home he refused to receive her, but left lier there with his mother, who had been keeping house for him during defendant’s absence.</p> <p>She says she is now of sound mind, able to care for her children, and avers that the question of her mental soundness is immaterial to the duty of the petitioner to support her and her children.</p> <p>She denies that she has deserted the petitioner and the children, or threatened his life.</p> <p>She prays an order of maintenance.</p> <p>May 8, 1916, plaintiff moved the court to pass an order adjudicating the rightful custody of the children mentioned m the' bill; and as incident thereto that appropriate issues may be framed for trial by jury concerning the present mental condition of defendant. lie accompanied this with an affidavit that the latter part of May, 1914, defendant was under police observation here as to her mentality, but was permitted to leave the District on June 1, 1914; that an inquiry into her mental condition was thereafter held in Philadelphia, Pennsylvania, and the authorities there permitted her to leave; and that after-wards she went to Chicago and was there committed for insanity to the State Hospital, and she was permitted to leave Chicago because of nonresidence there, and came to Washington, where she has since resided with plaintiff’s mother; that affiant provided support for the maintenance of defendant and the children by paying the same to his mother; that they lack for nothing ; that she is irresponsible in money matters, and is unfit to be legally accountable for the care of the children.</p> <p>On May 9, 1916, the defendant moved to dismiss the petition and to award her counsel a reasonable fee for defending- the suit.</p> <p>May 12, the court heard the motion to dismiss and sustained the same, with leave to plaintiff to amend within ten days.</p> <p>May 15,. plaintiff amended by inserting in paragraph six thereof after the word “permitted” the words “by the police authorities of the District of Columbia.”</p> <p>May 16, defendant moved to dismiss the amended bill.</p> <p>May 23, plaintiff moved the court to appoint a guardian ad litem, for defendant; and says that she. was adjudged insane in Chicago, Illinois, and committed. March 4, 1915, to the Chicago State Hospital to be treated for insanity; and was permitted to leave said hospital solely because she was a nonresident there.</p> <p>June 2, the court heard the motion to dismiss and ordered that the amended bill be dismissed at plaintiff’s cost.</p> <p>From this decree plaintiff has appealed.</p> <p>He assigns for error, among other things, entertaining the motion of May 9, 1916, by a person incompetent to make the same; entertaining the motion of May 16, 1916, by a person incompetent to make the same; and error in entertaining the motions after answer filed; and because the motion of May '9 and May 16 were inconsistent with the motion of May 5; because the court erred in refusing to act on motion of May 8, 1916, and in the conditional dismissal of the bill of May 12, 1916, and in the absolute dismissal of the bill of June 2, 1916; in totally' dismissing the bill, when any prayer thereof could have been granted, and dismissing the bill without hearing evidence, when it had been calendared for final hearing, and in dismissing the bill, if amendment thereof would cure any formal defects,</p>

<p>Reai, Estate Agents; Commissions.</p> <p>An owner of property has the right to employ more than one broker to sell his property; to reserve the right to sell himself, and to pay such broker as shall close the sale with a customer; but, notwithstanding this, if a broker finds a customer with whom the owner closes the deal, and is the real procurer of the sale, he is entitled to his commissions. (Following Bryan v. Abert, 3 App. D. C. 180; Block v. Ryan, 4 App. D. C. 283; Moore v. Breuningor, 34 App. D. C. 86; and Shinn v. Evans, 37 App. D. C. 304.)</p> <p>Note.—The question as to when real estate broker is.considered as the procuring cause of the sale or exchange affected is discussed in notes in 44 L.R.A. 321; 23 L.R.A.(N.S.) 164; and 27 L.R.A. (N.S.) 195.</p>

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

3 Tearing on an appeal by the plaintiff from an order of the Supreme Court of the District of Columbia granting motions by the defendants to a bill in equity to vacate the service of process upon them in the cause.

<p>Patents; Interference; Arpeáis.</p> <p>1. The question of patentability will not be considered by this court in an interference proceeding. (Citing Hisey v. Peters, 6 App. D. C. 68, and Sobey v. Holsclaw, 28 App. D. C. 65.)</p> <p>2. Appeals lie to this court from the Commissioner of Patents in only two classes of cases,—where an applicant for a patent or re-issue of a patent has had his claims twice rejected, and where there has been a final judgment of priority in favor of one of the parties to an interference. (Following Re Fuller, 32 App. D. C. 222.)</p> <p>3. In an interference between Elsom, Bonner, and Golde, the last named was the first to file his application, Bonner next, and Elsom last, with an alleged conception subsequent to the filing dates of both adversaries. In response to a direction by the Examiner of Interferences to Elsom to show cause why a judgment of priority should not' be entered against him on the record, he moved to dissolve on the ground that the claims in issue were unpatentable, and he also challenged the right of Bonner to make claim 1. The motions were denied and judgment of priority was entered against Elsom on the record, which judgment was affirmed by the Board of Examiners in. Chief, whose judgment was affirmed by the Commissioner. On appeal by Elsom this court held, affirming the judgment of the Commissioner, that as Elsom did not question the right of Golde to priority there could be no award of priority in his favor, and that his motions did not therefore relate to priority, but to the propriety of the declaration of interference, and did not come within rule 130 of the Patent Office.</p> <p>4. Refusal of the Board of Examiners in Chief of the Patent Office in an interference proceeding, under rule 126 of that Office, to recommend to the Commissioner a reconsideration of the question of patent-ability, and refusal of the Commissioner to exercise supervisory authority, will not be reviewed by this court on an appeal in the interference. (Following Sobey v. Holsclaw, supra.)</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>

Petition for the writ of mandamus to compel a justice of the Supreme Court of the. District of Columbia to sign a proposed bill of exceptions.

Hearing on appeals by the plaintiff from judgments of the Supreme Court of the District of Columbia in four actions to recover damages for breach of an alleged contract of employment.

<p>1 [earing on an appeal by the plaintiff from a decree of the Supreme Court of the District of Columbia dismissing a bill in equity to enjoin payment by the Secretary of the Treasury and the Secretary of Agriculture of the purchase price óf a tract of land purchased by the Federal government, and to establish tiie right of the plaintiff to one fifth of such purchase price.</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 dismissing a bill in equity filed by appellant, John E. Roller, to restrain payment by defendants William G. McAdoo, Secretary of the Treasury, and David F. Houston, Secretary of Agriculture, of the purchase price of certain lands in Virginia and West Virginia conveyed by defendant Murray to the Dnited States, and to be decreed a one-fiftb interest in said fund.</p> <p>It appears as part of the history of tbis case that appellant, Roller, hereafter referred to as plaintiff, contracted in 1873 with one Emily Hollingsworth to recover for her the title to 52,757 acres of mountain land lying in the counties of Augusta and Rockingham, Virginia, and the county of Pendleton, West Virginia, known as the “Hollingsworth survey,” which land bad been sold for taxes during the Civil War. Plaintiff was to receive as compensation for bis services one fifth of the proceeds of all lands recovered, be to pay all expenses of litigation incurred in Virginia. In pursuance of tbis agreement, plaintiff proceeded with the work, and succeeded in recovering the lands.</p> <p>It is averred in the bill “that by deed dated the 31st day of May, 1875, Emily Hollingsworth of the city of Philadelphia sold to plaintiff and signed, acknowledged, and delivered, to plaintiff a deed conveying to him a one-fiftb interest in a tract of 10,075 acres lying in the county of Pendleton in the state of West Virginia, being a part of that part of the grant to Levy Hollingsworth for 52,757 acres of land, known as the Hollingsworth survey, lying partly in the county of Augusta and partly in the county of Rockingham in the state of Virginia, and partly in the county of Pendleton in the state of West Virginia, which lies on the western side of the top of the Great Shenandoah Mountains in the said county of Pendleton, the exact boundaries of which your plaintiff is not able to give without an actual survey of the same, but said tract being well known and thoroughly marked and identified by well-established lines and corners. Tbis deed remained in the possession of your plaintiff until the 10th day of November, 1876, when be returned the same at the request of the said Emily Hollingsworth to R. C. McMurtrie, a lawyer of the city of Philadelphia, then representing her, for the purpose of allowing her to sell the entire properly, including the interest of the plaintiff, to the Royal Land Company of Virginia, and that said deed was retained by the said Emily Hollingsworth and her attorney and by her delivered to the said Mary H. Murray as hereinafter shown, and was never afterwards returned to the plaintiff. The effect of which proceedings was to leave the plaintiff vested with an undivided one-fifth interest in the tract of 10,075 acres aforesaid.” It also appears that shortly prior to the time this deed was returned to Hollingsworth, plaintiff executed a deed to her for the land in question for the express purpose of enabling her to enter into the contract of sale with the Royal Land Company.</p> <p>It is also averred in the bill that, on November 10, 1876, Hollingsworth contracted to sell to the Royal Land Company of Virginia all of said tract of 52,757 acres, “excepting therefrom certain lands theretofore conveyed by her to Joseph R. Loose, J. A. Loewcnbach, and John E. Roller, aggregating 9,388 acres,” for the sum of $70,000, of which $52,000 was to be paid to Hollingsworth and $18,000 to plaintiff, $13,000 of which represented plaintiff’s one-fifth interest and $5,000 additional payment for services rendered by plaintiff to the'Royal Land Company. Hollingsworth executed a deed contemporaneously with the contract, which was left with McMurtrie, to be delivered to the company when it complied with its agreement. Various attempts were made to carry out the contract with the Royal Land Company, hut without success; and on June 10, 1881, the Atlantic & Ohio Railroad Company entered into a contract to purchase the lands at the same price named in the contract with the Royal Land Company, the latter contract being rescinded and abandoned. The railroad company failed to carry out its contract, though attempts were made by parties undertaking to assume the obligations of the company, among which was a sale by defendant Murray to one George A. Wheelock, to which reference will hereafter be made.</p> <p>It is further' averred that, on April 1, 1889, Hollingsworth, in consideration of love and affection, conveyed the balance of said tract of land, amounting to 43,000 acres, more or less, to defendant Murray, who had full knowledge of plaintiff’s interest therein, with an agreement on her part “to carry out the contracts between the said Emily Hollingsworth and the plaintiff,- she having full notice and knowledge of the rights and interests of the plaintiff in the premises.”</p> <p>Plaintiff’s bill is based upon the theory that, by reason of the contracts between Hollingsworth and the Eoyal Land Company and between her and the Atlantic & Ohio Eailroad Company, defendant Murray became seized of the remaining 43,000 acres of said tract to the use of plaintiff as the beneficial owner of one-fifth thereof, asserting also his title to one-fifth interest in the 10,075-acre tract by virtue of his' conveyance from Hollingsworth. The prayer, in brief, is that plaintiff be decreed to be entitled to receive such portion of the purchase price of said lands now in the possession of defendants McAdoo -and Houston as will represent a fair value of his one-fifth interest therein.</p> <p>Defendant McAdoo answered, disclaiming any interest in or control over said fund; and defendant Houston answered at some length, setting out defenses totally immaterial to the government or, its agents, but averring- that he had in his possession the fund in question, which would be retained awaiting the final disposition of the' cause. Defendant Murray moved to discharge!-the rule and dismiss the bill, on the grounds that the alleged .cause of action grows out of champertous agreements; that the alleged, claim of plaintiff is res judicata; that it is barred ¡by. the Statute of Limitations, and that the bill is without equity..</p> <p>From the decree sustaining the motion to dismiss this appeal was taken. ' -</p> <p>It-appears that the matters and things here advanced as basis for recovery, including the effect of the recitals in the contracts between Emily Hollingsworth and the Eoyal Land Compány and .the Atlantic & Ohio Eailroad Company, were, with one exception, fully considered and finally adjudicated-by the Yirginia court of appeals on November 21, 1907, in the case of Roller v. Murray, 107 Va. 527, 59 S. E. 421. That suit was based upon the original contract with Hollingsworth, as confirmed by Hie recitals in the contracts between Hollingsworth and the Royal Land Company and the Atlantic & Ohio Railroad Company. These agreements were set out in the bill and rt'lied upon as basis for relief as confirming the original contract. The court stated plaintiff’s cause of action as follows: “The bills assert, as the gravamen of the plaintiff’s case, an equitable right to one fifth of the purchase price arising on the sale of the Hollingsworth lands by Mrs. Murray to Geo. A. Wheelock (apparently relying on an equitable assignment, though without so naming the equity claimed), and to the benefit of the security of the deed of trust given by Wheelock upon the laud to secure the purchase money; notice to Wheelock of the plaintiff’s rights being alleged, and the prayer of all the bills being that these rights he established by the court, and that the Wheelock deed of trust be enforced for plaintiff’s benefit, notwithstanding the subsequent release of that deed and of Wheelock by the act of Mrs. Murray.” The court in an elaborate opinion held the contract for services between plaintiff and Hollingsworth champertous and illegal, and entered a decree dismissing the hill without prejudice, however, to the right of plaintiff to bring suit for compensation for his services on a quantum meruit. Thereafter, such a suit was brought in Virginia (Roller v. Murray, 112 Va. 780, 38 L.R.A.(N.S.) 1202, 72 S. E. 665, Ann. Cas. 1913B, 1088), wherein it was held that, inasmuch as the original contract was not only void, but illegal, for champerty, the action of quantum meruit could not be maintained.</p> <p>Thereafter, plaintiff brought a suit in the county of Pendleton, West Virginia, which stated substantially the same cause of action as was stated in the first suit in Virginia. The action, as in Virginia, was to enforce an equitable right to one fifth of the purchase price arising from the sale to Wheelock. It may here be suggested .that, Wheelock defaulted, and the land reverted to Murray. The supreme court of appeals of West Virginia, on October 22, 1912, in the case of Roller v. Murray, 71 W. Va. 161, L.R.A.1915F, 984, 76 S. E. 172, Ann. Cas. 1914B, 1139, affirmed the decree of the lower court dismissing plaintiff’s bill, upon the ground that it was required to accord full faitb and credit to the judgment of the Virginia court. “Being res judicata in Virginia, it must be so in West Virginia, because the Virginia decision must have the same faitb and credit in all other States that it is entitled to in that State.”</p>

<p>Hearing ou an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia sustaining a demurrer to an amended declaration in an action for malicious prosecution, and, the plaintiff electing not to amend further, dismissing the action.</p> <p>The facts axe stated in the opinion.</p>

Hearing on an appeal by the plaintiff, the District of Columbia, from a decree of the Supreme Court of the District of Columbia sustaining a motion to dismiss, and dismissing, a bill in equity to compel the defendant to pay taxes on certain land occupied by it, but owned by the United States.

Hearing on an appeal by the plaintiffs from a decree of the Supreme Court of the District of Columbia entered on a mandate of tbis court on a former appeal. The facts are stated in the opinion.

<p>Appeal and Error.</p> <p>A judgment in an action to 'recover for goods sold and delivered, affirmed on the ground that the issue was one of fact and was properly sub- ' mitted to the jury, whose verdict was supported by the evidence.</p>

Hearing oh an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia in an action to recover for the alleged negligent killing of the plaintiff’s intestate, there having been a verdict for the plaintiff, subject to the opinion of the court on the question of the defendant’s liability, and after verdict the court having granted a motion by the defendant for judgment in its favor on the question of law reserved.

Hearing on appeals by the defendants from decrees of the Supreme Court of the District of Columbia overruling motions to dismiss and, the defendants electing not to plead over, dismissing bills in equity to subject equitable interests in land, and shares of corporate stock, to the satisfaction of decrees for the payment of money. The Court in the opinion stated the facts as follows: Tiloso are appeals from decrees of the supremo court of the District.

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

<p>Patents; Interference.</p> <p>A decision of the Commissioner of Patents awarding priority to the senior party in an interference proceeding involving the invention of a method of producing fuel vapor from oils, such as kerosene and crude petroleum, adapted for use in internal combustion engines, was affirmed.</p>

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

<p>Patents; Interference; Diligence.</p> <p>1. A ruling of the Patent Office in an interference proceeding that the filing by one of the parlies of an application in a foreign country, disclosing the invention ot the issue, constituted a constructive reduction to practice, accepted for the purpose of the decision of an appeal from an award of priority in his favor, although challenged by the other party.</p> <p>2. In an interference relating to an improvement in hand-actuated alarm devices or mechanical horns, an award of priority by the Commissioner of Patents in favor of the senior party, who filed an application in Trance November 7, 1910, and in this country' November 7, 1911, and who took no testimony, but relied -upon his filing dates, was reversad and priority awarded the junior party, who filed an application November 24, 1912, which was a division of an application filed June 12, 1912, where it appeared that the junior party made a drawing which disclosed the invention of the issue in May, 1909; commenced the construction of a horn embodying the invention early in 1910, which he completed in May of that year; tested and successfully operated the horn, together-with an electrically operated horn, early in July, 1910; endeavored to interest a party in the manufacture of the horn of the issue, which he could not manufacture himself because of financial reverses; filed his application shortly after obtaining money to exploit his electrically driven horn-; and there was no evidence to show that he had concealed or abandoned his invention, or had been induced to file his application because of any activity on the part of the senior party. (Citing Stanbon v. Howe, 34 App. D. C. 418; Gaisman v. Gillette, 36 App. D. C. 440; Hubbard v. Berg, 40 App. D. C. 577; Hopkins v. Peters, 41 App. D. C. 302; Stewart v. Thomas, 42 App. D. C. 222; Piermann v. Chisholm, 44 App. D. C. 460; Manly v. Janney, 45 App. D. C. 516.)</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>Trademarks; Similarity.</p> <p>1. Where it is apparent that an attempt has been made by the applicant for tho registration of a trademark to simulate the well-known trademark of another, appropriated to goods of the same descriptive properties, the two marks will not, in an opposition proceeding, be examined as with a microscope to detect minute differences, but will be viewed as a whole, as the general public would view them. The points of similarity are more important than the points of difference.</p> <p>2. Nonregisterable matter should not be included in a mark the registration of which is applied for as a trademark, as the registered mark should go out to the public in its original form, or it Is deceptive, and protects no one. (Following Nairn Linoleum Co. v. Ringwalt Linoleum Works, ante, 64.)</p> <p>3. In opposition proceedings to the registration of two marks as trademarks for sticky fly paper, the mark of the opposer, whose business liad been established more than -thirty years, and who at an early date adopted the mark, consisted of the word “Tanglefoot,” and a fanciful design, the distinguishing feature of which was an oval so positioned that on each sheet of paper there was one complete oval and two half sections at either end thereof, and surrounding the complete oval and forming a rectangle were four fanciful circles, and representations of flies were used upon the product. One of the marks of the applicant consisted of a fanciful design, the principal figure of which was of about the same shape as that used by the opposer and arranged in exactly the same way; namely, in one complete oval in the center and two half sections at either end, with four flies substituted for the four circles of the opposer. The other mark of the applicant consisted of a rectangular figure upon which were two flies and the word “Sticky” in quotation marks, with a panel extending across the four middle letters; but the applicant filed a disclaimer as to the word “Sticky.” It was held, reversing decisions of the Commissioner dismissing the oppositions, that as to the applicant’s first mark, it was so similar to the opposer’s as to be likely to cause confusion in trade, and it -was apparent that applicant had made an attempt to put on the market a fly paper closely resembling that of the opposin'; and that as to the applicant’s second mark, the word “Sticky” and tho flies must be eliminated, and when so eliminated, the balance of the mark would be registerable. (Citing Fishbeck Soap Co. v. Kleeno Mfg. Co. 44 App. D. C. 6; and Nairn Linoleum Co. v. Ringwalt Linoleum Works, supra.)</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>

IIkartng on an appeal by the plaintiff, from a judgment of the Supreme Court of the District of Columbia, directed by the court, in an action for breach of a contract of employment. The Court in the opinion stated the facts as follows: This is an action for the breach of a contract for employment.

<p>Trademarks ; Similarity.</p> <p>The words ''‘Home Pride,” as applied to coffee and teas, is so similar to “Home” and “Home Brand,” registered as trademarks and applied to the same goods, as to be likely to cause confusion in trade, and are therefore not registerable as a trademark over an opposition by the registrant of the other marks. (Following Peter Schoenhofen Brewing Co. v. Maltine Co. 30 App. D. C. 340; Lang v. Green River Distilling Co. 33 App. D. C. 506; Barthels Mfg. Co. v. United Lace & Braid Mfg. Co. 43 App. D. C. 200; Nafziger v. Schulze Baking Co. ante, 292.)</p>

<p>Bills and Notes; Banking; Replevin.</p> <p>An action of replevin lies against a bank to recover possession of overdue promissory notes received by it from a private, banking firm to secure the payment of an overdraft by the firm, where it appears that the notes evidenced a debt secured by deed of trust on property owned by the plaintiff and her sister; that the debt had been paid on maturity of the notes by the plaintiff, who had then left the notes with the banking firm for safe-keeping and receipt from her sister semiannually of one half of the interest, and the notes were used by tile firm to pay its overdraft without the plaintiff’s authority.</p> <p>Note.—On right to maintain an action of detinue or replevin to recover possession of a promissory note, see note in 3 L.R.A. (N.S.) 338.</p>

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

Hearing on an appeal by the defendants from a decree of the Supreme Court of the District of Columbia appointing a receiver pendente lite for a corporation. The Court in the opinion stated the facts as follows: This is a minority stockholders’ hill in the supreme court of the District, and the appeal is from a decree in that court appointing a receiver pendente lite. The hearing was npon bill and answer, the answer being under oath.

<p>Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action of covenant.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from a judgment for the defendant,- appellee here, in the supreme court of the District in an action for breach of covenant.</p> <p>The parties, William P. and Mary Cronan, while husband and wife and living separate and apart, entered into a written contract by the terms of which, in consideration of being relieved of all obligations to the plaintiff and of all her claims against his estate, the defendant agreed to pay and secure to her during her life the sum of $150 per month and to assume and pay a certain note for $7,000 secured by mortgage upon real estate belonging to her. The action was brought for breach of covenant to pay the note for $7,000. Accompanying the declaration was an affidavit under the 73 d rule and a copy Cf the contract sued upon.</p> <p>The defendant interposed four pleas: First, non est factum; second, that the consideration for the contract is not good and valuable, but illegal and void; third, that the contract is void because made by the defendant in consideration of the plaintiff agreeing to institute a suit for divorce, the prosecution of which the defendant agreed to facilitate by making no substantial defense thereto, and that the terms of said illegal agreement were carried out; that the contract is void because when made the parties were married and a suit for divorce pending, which suit it had been agreed plaintiff was to prosecute and defendant was not to defend, all the terms and provision of said contract being substituted for alimony which might be awarded the plaintiff, with the understanding that the contract would be secretly and unlawfully withheld from the court. Plaintiff joined issue upon all of the pleas. Trial was had before a jury, which resulted in a verdict and judgment for the defendant.</p> <p>The signing of the contract and the breach alleged in the declaration were admitted at the trial. It was further admitted that the defendant continued to pay the $150 per month until shortly before the suit was instituted. The evidence for the defendant then was introduced. • '</p> <p>The defendant is a lieutenant commander in the United States Navy, was born in 1879, and graduated from the Naval Academy in 1898. He married the plaintiff in New York on June 20, 1907, while he was stationed at that place. He soon was ordered to sea and made a trip around the world, his wife, of course, remaining behind, where she was indifferently provided for by him. In April, 1908, he wrote her from California, in part as follows: “I am forced to tell you the truth. It is better that you forget me absolutely. I am sorry that I can send you no money, but I have none and am in debt myself. Upon arrival in San Francisco I shall take steps to secure a divorce for us, for the present state of affairs holds no happiness for either of us and would eventually mean disaster.” He saw an attorney in San Francisco, who, however, informed him that he had no grounds for a divorce, but that his wife might have. This attorney, who also maintained an office in Now York, subsequently saw the plaintiff in the interests of the defendant, but she was unwilling to institute a divorce. Later, in May or June of 1909, the defendant, according to his own testimony, interviewed the plaintiff, who “chided him for having-written the letter which he did write from California and implored him to resume their former relations, and was most affectionate in her manner. * * * She said she did love him and she would not give him up, and that she would not get a divorce.” He further stated that he told her his father was worth over half a million dollars and was dying; that he was one of four heirs; that he would be in a position to make a liberal settlement upon her; that “after witness told her of his father’s wealth and that he was about to die, her manner changed completely, and from imploring and entreating witness to stay with her she became very angry and indignant and said she- was through with him, that that was no way to be treated, that she would get a divorce, and witness could go as far as he liked.” The evidence for the defendant further tended to show that the plaintiff, at the defendant’s suggestion, subsequently went to California, and, on January 14, 1910, filed a complaint for divorce on the ground of desertion; that the defendant went to San Francisco for the sole purpose of having service made upon him;-that he paid plaintiff’s expenses from New York to San Francisco, her expenses while there, and all costs and expenses im^plved in the suit, including attorneys’ fees. In other words, defendant’s evidence tended to prove that his endeavors to have his wife'proceed against him for divorce finally were successful, and that the contract in suit was entered into upon that understanding and condition.</p> <p>The plaintiff’s evidence tended to show that, owing to the defendant’s conduct, she finally determined to obtain a divorce. She testified that “she understood thoroughly that she could sue him for divorce or desertion or maintenance and get alimony, that she could keep him as her husband or not, as she saw fit, and unless he made a proper settlement she was going to do what she saw fit.”</p>

<p>Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action for breach of contract.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This appeal is from a judgment in the supreme court of the District upon a verdict for the appellee, Mahlon A. Winter, defendant below.</p> <p>The suit was based upon the following agreement:</p> <p>Agreement.</p> <p>This agreement entered into this 11th day of J anuary, A. d. 1909, in duplicate, between Mahlon A. Winter, of Washington, District of Columbia, party of the first part, and William Henry White and Noel W.- Barksdale, of Washington, District of Columbia, as attorneys for Erminie L. Winter of Lynchbury, Virginia, parties of the second part, witnesseth; that</p> <p>Whereas, the said Mahlon A. Winter and Erminie L. Winter were divorced by a decree in Equity Cause No. 24,919 in the supreme court of the District of Columbia, passed J anuary 14, 1905, and concerning which a difference has arisen and exists between them; and</p> <p>Whereas, the parties hereto have reached an amicable adjustment in settlement and compromise of their matters of difference, they now agree .as follows: .</p> <p>1. The said Mahlon A. Winter, for the support of Erminie L. Winter, will pay unto said William Henry White and Noel W. Barksdale, or the survivor of them, for and on her behalf, the sum of sixty dollars ($60), and a like sum of sixty dollars ($60) on the first day of February, 1909, and the sums of sixty dollars ($60) on the first day of each and every month thereafter during the lifetime of the said Erminie L. Winter, or until her remarriage, to the payment of which sums the said Mahlon A. Winter binds himself, his heirs, executors, administrators, and assigns.</p> <p>2. The said William Henry White and Noel W. Barksdale, as such attorneys, agree that so long as said sums are promptly paid, no action shall be taken in the premises by the said Erminie L. Winter or her counsel against the said Mahlon A. Winter, looking either to disturbing said decree or seeking any additional sums for her maintenance or support, and they agree that at the signing hereof the mother of said Erminie L. Winter, Mary E. Tanner, and her friend, Mrs. Anna C. Pollok, shall in writing concur in and approve the terms hereof.</p> <p>In witness whereof, the parties have hereunto set their hands and seals this 11th day of January, a. d. 1909.</p> <p>M. A. Winter. (Seal)</p> <p>Wm. Henry White, (Seal)</p> <p>Attorney for Erminie L. Winter.</p> <p>Noel W. Barksdale, (Seal)</p> <p>Attorney for Erminie L. Winter.</p> <p>Witness:</p> <p>G. W. Paris.</p> <p>The facts which we deem material are substantially as follows: The appellee, Mahlon A. Winter, and Erminie L. Winter were married in November, 1891, and lived together until 1904, when appellee filed a petition for divorce in the supreme court of the .District, alleging infidelity and naming his own son by a former marriage', born January 14, 1888, as corespondent. No defense was made to this suit, and in January, 1905, a divorce was granted. Thereafter, in December of 1908, counsel for Mrs. Winter notified appellee in writing that they had been advised that the decree was procured while Mrs. Winter was insane, and that they therefore had prepared and proposed to file a, bill to set aside the decree. They further suggested that appellee have his counsel call to see them about the matter.' The result was a series of interviews between counsel. In addition to this, appellee and his counsel went to Lynchburg, Virginia, where his former wife then lived in straitened and necessitous circumstances, and made an independent investigation.</p> <p>The bill of complaint to which counsel for appellant referred in his communication to appellee was exhibited to counsel for appellee during the course of the negotiations and its contents made known to him. In the bill it was alleged that at the time of the filing of said petition for divorce Mahlon A. Winter and Erminie L. Winter were living in the city of Washington; that Courtney P. Winter, the son of Mahlon A. Winter above referred to was living with them, and that Ida R. Creel was housekeeper; that on the date the divorce suit was filed Mrs. Winter and Courtney P. Winter, the corespondent, were duly served with process, and on September 30, 1904, said corespondent appeared in court, when a guardian ad litem was appointed to answer for him; that an answer thereafter was filed on his behalf; that some time between the 21st and the 2Gth of September, 1904, appellee directed said Erminie L. Winter, who then was living with him at his residence in this city, to call an attorney at his office by telephone and request said attorney to represent her in said divorce case; that she did call said attorney and, through fear of appellee and under his direction, she informed said attorney that she did not wish to make any defense to said suit; that she neither answered the bill •nor introduced any testimony in said cause; that thereafter two depositions on behalf of the complainant were filed, one being the deposition of the petitioner and the other of Ida R. Creel. Upon hearing, the court recommitted the cause for the taking of further testimony, whereupon the'deposition of Courtney P. Winter was taken and filed, and thereafter the decree of divorce was passed.</p> <p>The bill further averred that the allegations of infidelity in said petition for divorce and the testimony in support thereof were false and known to be false by the parties testifying; that the said petition for divorce was filed by said Mahlon A. Winter as part of a prearrangement and understanding between him and, his housekeeper that a divorce should be .procured and that thereafter they should be married; that they did go through a form of marriage ceremony in the spring of 1905, after the granting of said divorce. It was further averred that said Erminie L. Winter had been of unsound mind since 1896, and that this was well-known to the said Mahlon A. Winter, Ida R. Creel, and Courtney P. Winter; that “the said parties purposely, knowingly, wilfully, and fraudulently imposed upon this court as well as upon the attorney in said suit, by failing to impart the information of said facts to the counsel in the cause and to the court;” that the attorney for the said Erminie L. Winter had not seen her before he called upon her upon the occasion above mentioned; that he then saw her for less than twenty minutes, and did not see her afterwards, and did not learn of her condition until after the decree was passed. It was prayed that the divorce decree be set aside. The proposed bill was signed and sworn to by Mary E. Tanner, mother and next friend of Mrs. Winter.</p> <p>The negotiations before mentioned resulted in the contract involved, and appellee promptly made the payments called for therein until January, 1911, when he discontinued them on the ground that the signing of the contract by him was induced by duress, and that was the question submitted to and determined by the jury.</p>

Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia sustaining a motion by the plaintiff to strike out the defendant’s answer to a bill to set aside a transfer by a bankrupt as a preference, and granting the relief asked. The Court in the opinion stated the facts as follows: Tbis appeal is from a decree in the supreme court of the District sustaining a motion to strike out the answer of the defendant, Orren Gf.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia dismissing a bill in equity for an injunction against the Secretary of the Interior. The facts are stated in the opinion.

Hrc.vieixo on an appeal from a decree of the Supreme Court of the District of Columbia dismissing a bill in equity to enjoin the Secretary of the Interior from rejecting and canceling a list of indemnity railroad lands selected by the plaintiff!

<p>Patents; Interference; Seduction to Practice.</p> <p>1. All limitations appealing in the counts of an interference will be regarded as material to the invention covered by such counts. (Citing Wilson v. Ellis, 42 App. D. C. 552.)</p> <p>2. Where the issues of an interference involving the invention of an electric motor for starting internal combustion engines provided with means whereby transmission gearing between the motor and engine was automatically brought into mesh when the motor was started and automatically brought out of mesh upon the engine taking up its own cycle of operations, called for an armature movable with respect to the field and normally displaced and the return of the armature to its normal disjdacement, it was held that the construction by one of the parties of a device having no sliding or axially movable armature did not disclose the invention of the issue and constitute reduction to practice.</p>

<p>Hearing on an appeal from a decision of the Commissioner of Patents dismissing an opposition to the registration of a trademark.</p> <p>Tlie Court in the opinion stated the facts as follows:</p> <p>Tlie Ramey Company, on February 20, 1915, applied for the registration of the word “Simplex” as a trademark for electric vacuum cleaners, which was opposed by the Simplex Electric Heating Company. The Ramey Company alleged the use of the word since August 1, 1913, upon electric vacuum cleaners. The Simplex Electric Heating Company alleged in its notice of opposition the use of the word “Simplex” long prior thereto; that the proposed registration by the Ramey Company so nearly resembles that of the opposer as to he likely to cause, confusion in the mind of the public and to deceive purchasers; that the mark of the Simplex Electric Healing Company is appropriated to merchandise of the same descriptive properties; that the said trademark is not registerable to the said Ramey Company because of the fact that the Simplex Company and its predecessors in business have been manufacturing’ and selling continuously in this country various articles and devices, including a line of articles and devices for the equipment of houses, apartments, hotels, and other places where housekeeping is carried on, and including the various articles set forth in the recited registrations, and including various kinds of electrically operated portable devices, and including baking ovens, barbers’ urns, bar urns, steam and hot wafer boilers, bookbinders’ heaters, branding irons, cereal cookers, chafing-dish spoons, forks, and trays therefor, coffee turn, cooking utensils of various kinds, dining-room sets, egg boilers, ranges, frying pans, branding irons, domestic irons, drag irons, fluting irons, household irons, laundry irons, puff irons, kitchen utensils, laundry machines and equipments of various kinds, percolators, stands for irons, tea-ball pots, tureens, water cups, water-heating devices, and many other articles and devices for household and other purposes, and various other merchandise of the same descriptive properties as set forth in the application of the said Ramey Company, all of which have been manufactured and sold by the Simplex Electric Heating Company or its predecessors in business for a period extending long prior to August 1, 1913, and long prior to any date of adoption and nse of the said trademark by the Ramey Company, and all of which have been marketed by the Simplex- Electric Heating Company, with the word “Simplex,” or a trademark including as its leading and characteristic feature the word “Simplex,” as the trademark of the said Simplex Electric Heating Company -or its predecessors in business; and the said marks have been so used by the Sim.plex Electric Heating Company continuously during the said period in commerce between the several states of the Hnited States; that the Simplex Electric Heating Company now manufactures and sells about seven hundred of such articles and devices, and intends, as its business warrants and the demands of the trade require, to continue to add to and increase the said line of articles and devices bearing the said trademark “Simplex,” as it has done from time to time in the past; that the Simplex Electric Heating Company by reason of its long-continued business, extending back continuously to July, 1902, and extending back of that date and carried on by its predecessors in business, Simplex Electrical Company, to January, 1898, by reason of the high quality, material, and workmanship employed in the articles and devices manufactured and sold by it, by reason of the wide distribution of its articles and devices throughout the Hnited States, by reason of the wide variety of these .articles and devices, and the large number thereof having to do with housekeeping, and being sold to and used by those engaged in the care of houses, hotels, and other places where housekeeping is carried on, by reason of the adoption and continuous use of the said trademark “Simplex” by it and its predecessors in business on the aforesaid articles and devices, has indicated to the trade and to those purchasing and using articles and devices of this general character and kind that articles and devices bearing this trademark “Simplex” originated exclusively with the Simplex Electric Heating Company and were the product of its business, and that as other lines, particularly of electrically operated devices, have been added in accordance with the demands of the trade they have at once been recognized by the purchasing public as the product -of the Simplex Electric Heating Company because of the established and well-known custom of said company to increase and develop its line of products; that the registration of the said trademark and its use by the Ramey Company upon electrical vacuum cleaners and sweepers has caused, and will be likely to cause, confusion or mistake in the mind of the public, or to deceive purchasers, because applied to and sought to be applied to merchandise of the same descriptive properties as that upon which the said mark has long been used as a trademark by the Simplex Electric Heating Company; that the Simplex Electric Heating Company would be damaged by registration of said mark, and that said mark cannot lawfully be claimed as a trademark by the said Ramey Company, because it consists merely in the name of a corporation; to wit, that of this opponent and of its predecessor in business, not written, printed, impressed, or woven in some particular or distinctive manner, or in association with a portrait; that the opponent was incorporated and received its corporate name under the laws of the state of Massachusetts in the year 1902, long prior to any date of adoption of the said mark alleged by the said Ramey Company; that the predecessor in business of this opponent, the Simplex Electrical Company, was incorporated and received its corporate name under the laws of the state of 'Massachusetts long prior to the year 1902, and in that year for valuable consideration sold and set over to (his opponent the going business which this opponent has been carrying on, and the good will pertaining thereto.</p> <p>The Simplex Electric Heating Company was incorporated in 1902. There had been a prior company, called the Simplex Electrical Company, and the new company was organized by purchase of the old company to take over that particular business. The treasurer of each company has been the same continuously. The business of the Simplex Electric Heating Company was started when the American Electric Heating Company accumulated some two or three hundred patents relating to electric heating devices and started in to manufacture, about 1896. The concern was not successful and the business was taken over in 1898 by the Simplex Electrical Company and carried on under a department called the “heating department.” Under this administration the business was considerably developed, and extended to such an extent that in 1902 the Simplex Electric Heating Company was incorporated, and continued the business from that point to the present time. During that thirteen years 'the company has manufactured and sold many thousand electrically heated devices, its market being the whole of the United States, and also foreign countries. All of the goods sold have borne the trademark “Simplex,” which was either cast in the iron forming the casing, or in the name plate, which was fastened on in a prominent place. Testimony tended to show that the nature of the business is such that it is necessary to develo]) new articles and extend the line practically continuously, and also that vacuum cleaners are of the same class of goods; that probably 60 per cent of the Simplex Company’s manufactures are of the so-called lamp socket devices, articles which may be connected to an ordinary lamp socket from which to obtain the electric current which makes them operative; and as the so-called Simplex Electric Vacuum Cleaner is operated from a lamp socket, this is in a direct line of development by the opponent ; that other electrical companies have already proceeded to the manufacture of electric vacuum cleaners. The goods are sold by jobbers and dealers for use in households. They have been advertised for years, at an expense of about $200,000 per year, in the foreign trade journals and magazines, until the Simplex Electric Heating Company has become known throughout the United States to purchasers of electrical devices.</p> <p>It was shown that in one instance a purchaser had inquired about the Simplex Electric Vacuum Cleaner, which he supposed was manufactured by that company. He had seen the article displayed for sale with the name “Simplex,” and supposed it was manufactured by the Simplex Company, and he wanted to arrange for a commission for the sale of some of the cleaners.' Another customer of the opposer, of Syracuse, New York, sent a money order for four carbon brushes, regular electric cleaner, and one bag for special “A” cleaner. The order was sent under the supposition that the Simplex Company manufactured the Simplex Electric Vacuum Cleaner.</p> <p>Other testimony tended to show cases of confusion on the part of the purchasers, who supposed the Simplex electric cleaner was manufactured by the Simplex Company, asking for prices, catalogues, etc.; and also that one vacuum cleaner had been forwarded to the opposer for repair, believing it was the manufacturer.</p> <p>There was also proof tending to show that electrical dealers handled electric heating devices and vacuum cleaners as substantially the same line of goods.</p> <p>Proof also tended to show that vacuum cleaners are considered as belonging to the same class of household goods as electric heating devices operated by lamp sockets.</p>

<p>Patents; Interference; Dieioence.</p> <p>2. Where in an interference it appears that prior to the filing of the application of one of the parties, he and another had filed a joint application for a patent for the same invention, while the facts will be closely scrutinized (citing Hewlett v. Steinberger, 40 App. D. C. 287), if it appears that the filing of such joint application was an inadvertence, due to a lack of knowledge of patent law, it will not be fatal to his rights.</p> <p>2. There is no arbitrary rule by which diligence may be measured; in other words, the circumstances of each case must control, (following Woods v. Poor, 29 App. D. C. 397.)</p> <p>S. In an interference involving the invention of a machine designed to strip the waste yarn remaining on bobbins, after their discharge from the looms, the evidence showed that the junior party, a poor and uneducated man, at the time of the entry of the senior party into the field, had made and disclosed the invention and Was then industriously endeavoring to protect his rights by filing an application; that instead of waiting upon two parties from whom he was endeavoring to obtain money to file liis application, he communicated with a patent attorney and endeavored to induce the mechanical instructor of the high school in his town to make drawings, and within a period of three or four months he succeeded in interesting another party in his invention and lost no time thereafter; it was held that he was not lacking in diligence, and a decision of Ihe Commissioner awarding him priority was affirmed.</p>

Hearing on an appeal from a decree of the Supreme Court of the District of Columbia dismissing a bill in equity by an Indian pueblo of Arizona against the Secretary of the Interior and the Commissioner of the General Land Office to enjoin them from opening its lands to sale, entry, and settlement as public lands of the United States.

<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 to enjoin the Secretary of the Interior from canceling a list of indemnity lands attempted to be selected by the plaintiff, a land grant railroad.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This suit was brought by appellant, Northern Pacific Railway Company, in the supreme court of the District of Columbia, to restrain the Secretary of the Interior from canceling a list of indemnity railroad lands attempted to be selected by plaintiff company under its grant by Act of Congress of July 2, 1864 (13 Stat. at L. 365, chap. 217) and the joint resolution of May 33, 1870 (16 Stat. at L. 378). From a decree dismissing the bill, the case comes here on appeal.</p> <p>As was usual in the railroad land grant acts, the grant was of the odd-numbered sections within the primary or place limits, with an additional indemnity grant to meet the losses sustained by reason of prior settlement or otherwise within the place limits. The railroad company constructed the road as required by the act, and applied for survey in order that it might make its indemnity selections. The survey was not made, and, in the meantime, the indemnity lands were rapidly being taken up by settlers.</p> <p>By Act of Congress of March 3, 1887 (21 Stat. at L-. 556, chap. 376, Comp. Stat. 1916, § 1895) the Secretary of the Interior was authorized and directed to immediately “adjust, in accordance with the decisions of the Supreme Court,'each of the railroad land grants made by Congress to aid in the construction of railroads and heretofore unadjusted.” The act conferred broad power upon the Secretary to adjust and settle conflicting claims growing out of the settlement of these lands by settlers and their sale by the railroad companies. It provided nothing, however, with respect to completing surveys of unsurveyed lands.</p> <p>Under this act statements in adjustment of plaintiff company’s grant in the States and Territories traversed by its constructed line were prepared by the Commissioner of the General Land Oflice, and, on May 26, 1906, forwarded to the Secretary of the Interior. From this statement it appeared that there was then a large and growing deficiency in the grant, and that it would require more land than remained undisposed of in the indemnity limits to meet the deficiency caused by settlement or otherwise in the primary or place limits.</p> <p>The railroad company, realizing the situation, and still being unable to procure a survey of the lands by the government, filed blanket selections including all of the odd-numbered sections within the indemnity limits at that date subject to selection, to be shown by the public survey when made. These lists wore received by the local land office and certified to the General Land Office, where they still remain on file. A plat of the survey of the township in which the lands here in controversy are situated was filed in the local land office on February 3, 1914, whereupon plaintiff company promptly filed therein a selection list of said land, conceded to be regular and in every respect in compliance with law. AVhen the list reached the General Land Office, the Commissioner, on November 19, 1914, held it for cancelation, for the reason that the lands were embraced within the executive order of March 2, 1907 (34 Stat. at L. 8309) creating the Priest River Forest Reserve. Appeal was taken to the Secretary of the Interior, who sustained the Commissioner ; hence this action.</p>

<p>Hearing oh an appeal by the relator from a judgment of the Supreme Court of the District of Columbia discharging a rule to show canse and dismissing a petition for the writ of mandamus to compel the Secretary of the Interior to issue patents for coal lands in Alaska.</p> <p>The facts are stated in the opinion.</p>

<p>Patents; Interference; Diligence.</p> <p>A party to an interference who was the first to conceive and disclose the invention, which was an improved mechanism for opening and closing the -work-holding clamps of buttonhole sewing machines, was held lacking in diligence where the evidence showed that in the year prior to the conception and disclosure of the other party he conceived and disclosed the subject-matter .of the issue and his draftsman embodied the disclosure in a sketch; that he then built and sold to his employer a machine which, however, did not contain any clamping mechanism; that thereafter he constructed another machine containing a clamp-closing mechanism, but patentably different from the clamp-closing mechanism of the issue; that at the request of his employer he constructed a third machine in accordance with the sketch theretofore made by his draftsman; that he w'as doing nothing to embody his early disclosure in practical form for a period of more than seven months after his adversary entered the field; and that he did not install the device of the issue in the second machine he made because he considered the mechanism he did install in it was more likely to meet the requirements of his employer, as evidenced by the fact that he subsequently applied for a patent on the clamp-closing mechanism of that machine.</p>

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

<p>Patents ; Patentability.</p> <p>An application for a patent for an improvement in receiving wireless signals, consisting of reducing the electrical oscillations by establishing a local circuit at the receiving station which produces oscillations of a different frequency from that produced at the signaling- station, was held anticipated by a patent for a similar improvement, one of the claims of which read: “In a high frequency signaling- system the combination at the receiving station of two fixed coils, one operatively connected to antenna and the other operatively connected to a frequency determining- element of slightly different frequency, a ring arranged in the fields of said coils, and an indicating mechanism controlled by said ring.”</p>

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

Hearing on an appeal by the defendants from a decree of the Supreme Court of the District of Columbia awarding a money recovery against them in a suit to enforce a mechanics’ lien, the land sought to be subjected to the lien having been sold under a deed of trust.

Hearing on an appeal by the plaintiffs from a decree of the Supreme Court of the District of Columbia dismissing a bill in equity to enjoin the Secretary of the Interior from interfering with the boundaries, by resurvey, of a Mexican land grant which had been patented.'to a predecessor in title of the plaintiff.

Hearing- on an appeal by the plaintiff from a judgment, on verdict, in an action against two defendants for personal injuries. The facts are stated in the opinion.

Hearing on an appeal by the caveatee from an order ,of the Supreme Court of the District of Columbia, sitting as a probate court, refusing to admit to probate and record a paper writing offered as a will.

Hearing on an appeal by an intervener from a decree of the Supreme Court of the District of Columbia, sitting as an equity court, construing wills and directing the partition of certain real estate devised by the testators and accountings in respect of funds arising in the administration of the estates.

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

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

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

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

<p>Trademarks; Opfohkr’s Ixtere.st; Corporate Names; Disclaimer.</p> <p>1. In a trademark proceeding in which the appl icant, the Kellogg Toasted Corn Flake Company, sought to register the word “Kellogg,” as applied to cereal breakfast foods, and the opposers, the Kellogg Food Company and John H. Kellogg, in their notice of opposition, stated, among other things, that the name for thirty years had been identified with the products of opposers, including breakfast foods, and set forth a sales agreement made about ten years before by which John H. Kellogg sold to the applicant’s predecessor the exclusive right to manufacture and sell “toasted corn flakes” and “toasted corn flake biscuits,” but did not part with the right to use the name in connection with any other cereal foods; and in a motion to dismiss the oppositions there was contained an averment indicating that the applicant understood that the right to register an essential part of the corporate name of one of the opposers was being challenged,—it was held, reversing a decision of the Commissioner sustaining the motion to dismiss, (1) that there was a suflicieni averment of interest on the part of the opposers (following Natural Food Co. v. Williams, 30 App. D. C. 348, and Electro Steel Co. v. Lindenberg Steel Co. 43 App. D. C. 270) ; and (2) the applicants had no right to the registration of the corporate name. (Distinguishing Rockwood Pottery Co. v. A. Wilhelm Co. 43 App. D. C. 1.)</p> <p>2. Where, upon opposition being made to the registration as a. trademark of the words “Kellogg’s Toasted Rice Bubbles” on the ground of prior use, the applicant filed a disclaimer to the first three words “apart from the mark shown in the drawing,” and the interest of the opposer in the proceeding was shown, it was held that the opposition should be sustained. (Following Nairn Linoleum Co. v. Ringwalt Linoleum Works, ante, 64, and O. & W. Thum Co. V. Dickinson, ante, 306.)</p>

<p>ITbaring on an appeal from a decision of the Commissioner of Patents rejecting claims of an application for a patent.</p> <p>The facts are stated in the opinion.</p>

<p>Husband and Wife; Dowéb; Estoppel; Contracts.’</p> <p>1. An agreement of separation between husband and wife, made and performable in another jurisdiction, and set up. as a defense to a suit in this jurisdiction by the wife to establish her right as widow in his estate, is governed by the law of the jurisdiction where made.</p> <p>2. A separation agreement between husband and wife will be enforced against the wife by the laws of New Jersey only when, after a cautious examination of all the circumstances under which it was made; it appears to be fair to the wife and supported by some equity in favor of the husband or those claiming under him.</p> <p>3. In a suit by a widow seeking to establish her interest as such in her deceased husband’s estate, where the evidence showed that the husband about fifty years before his death, having deserted his wife for another woman after his enlistment in the army, entered into a separation agreement with her by which, in consideration of her promise not to disturb him, he promised .to pay her $35 a month while he was ill the army, and help educate their three children; that he soon discontinued payment» and thereafter contributed nothing to the support of his family and education of his children; that after leading the army he came to this District, where, after living with another woman until her death, he successively went through ceremonial marriages with two other women; and that in dying he left a will making no provision for his wife from whom he was never divorced,—it was held that even if the separation agreement was to he interpreted as being a release by her of her right of dower in his estate, it was so unfair to her that it would not he enforceable; but that it was not so construed, but was merely intended to affect their relations during his life; and that she was not estopped by her failure to follow him to this jurisdiction and demand support, from claiming the right to participate, in his estate after his death. (Citing Bowen v. Howenstein, 39 App. D. C. 587, Ann. Cas. 191315, .1179, and Cronan v. Cronan, ante, 343.) Mr. Justice McCoy, of the Supreme Coiirt of the District, concurring.</p>

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

<p>Patents; Patentability; Related Asm</p> <p>1. Where a distinct advance has been made by an applicant for a patent in a given art, and the question of patentability is close, it will be resolved in favor of the applicant, especially where Ms claims are specific. (Following Re Eastwood, 33 App. D. C. 291.)</p> <p>2. Where an application for an improvement in spring hinges was rejected on a reference to a patent on a furniture caster, it was held that the arts were not related, and that the fact that the patent was ten years old when the hinge application was filed was evidence of the lack of adaptability to the hinge art of the construction shown in the patent.</p> <p>3. The idea of providing a ball race in the ears of an antifriction hinge, held to be invention, and hot mere mechanical improvement.</p>

<p>Appeal and Error; Estoppel; Negotiable Instruments; Corporations; Principal and Agent; Banks and Banking.</p> <p>1. Where one of the parties disclaimed at the trial below any intention of attacking the good faith of the other party, claiming that the question of good faith was immaterial to the issue, he is estopped on an appeal to claim that such other party acted in bad faith and conspired with others to deprive him of his property.</p> <p>2. Where a bank, as a condition of cashing for the general manager of a corporation a treasury warrant payable to the corporation, and indorsed by its general manager under a power of attorney by the vice president to indorse and collect it, requires a third person to indorse the warrant, the latter, under see. 1333, D-. C. Code (31 Stat. at L. 1399, chap. 854) becomes an accommodation indorser, and is subrogated to the rights of the bank if the bank on demand of the maker redeems the warrant, and he on demand of the bank makes good to it the amount; and it is immaterial that the general manager on cashing'the warrant deposits with the bank a portion of the proceeds to his individual credit..</p> <p>3. It would seem that the general manager of a corporation, who is its active business head, and who, with his wife, the vice president, and the president, controls all of the capital stock, has implied authority to indorse and cash a negotiable instrument payable to the corporation, which is received by him at a place distant from the home of the corporation, and as a result, of the assertion by him there, in behalf of the corporation of a claim, where, with the knowledge and acquiescence of all concerned, he went to such place unprovided with corporate funds to pay his expenses, for the purpose of collecting the claim.</p> <p>4. A power of attorney by the vice president of a corporation, to its general manager and active business head, given after the death of the president, and before his successor had been elected, to indorse, collect, receive, and receipt for a, treasury warrant payable to the corporation, and to take all lawful ways and means for its collection, is binding on the corporation, where the president and'vice president have authority by the by-laws to sign bonds, deeds, and con, tracts, although the vice president is the wife of the general manager, and although a particular bank at the home of the corporation has been made the depository of the corporate funds, and the ■ president is required to sign cheeks drawn on such funds, and the -treasurer is required to indorse for deposit and collection all negotiable instruments payable to the corporation, where the warrant was delivered to the general manager in this District as a result of the assertion by him here, in behalf of the corporation, of a claim against the government, and he had come lierp from the distant home of the corporation to collect the claim with the knowledge and acquiescence of all interested in the corporation, without corporate funds to pay his expenses, and where the treasurer, although such in name, performed no duties as such; and it is not the duty of a bank here which cashes the check for the general manager, in his execution of such power of attorney, to supervise the disposition by Mm of the proceeds.</p>

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

The Court in the opinion stated the facts as follows: This case comes hero on writ of error to the police court of the District of Columbia, and really involves the action of the Commissioners of the District in revoking the license of the plaintiff in error to conduct a private hospital.