Volume 47 — Appeals, District of Columbia

Hearing on an appeal by tbe caveators from an order of the Supreme Court of the District of Columbia, sitting as a probate court, admitting a will to probate after a contest over its validity. The facts are stated in the opinion.

<p>Hearing on a certification by the Police Court of the District of Columbia of a proceeding against a milk dealer for bringing milk into the District of Columbia without a permit from the health officer of the District of Columbia, to determine whether the prosecution should he by the District' of Columbia or by the United States.</p> <p>The Court iu the opinion stated the facts as follows:</p> <p>A complaint was filed in the police'court of tlie, District of Columbia charging that defendant, AYilliam A. Simpson, “did bring into the District of Columbia for sale, milk without a permit from the health officer of said District so to do,” in violation of the provisions of tlie Act of Congress of March 2, 1895 (28 Stat. at L. 709, chap. 164).</p> <p>Defendant demurred to the information on the ground, as stated, “that there is no law making the allegations in the information an offense in the District of Columbia.” On motion of the corporation counsel the case was duly certified to this court to determine whether the cause “should be prosecuted in the name of the District of Columbia for violation of sec. 2 of the Act of Congress approved March 2, 1895, or in the name of the United States under sec. 2 or sec. 7 of the Act of Congress approved. -Tune 30, 1906, and known as the Pure Food Law.”</p> <p>Weigand v. District of Columbia, 22 App. D. C. 569, brought, up a conflict between the Act of 1S95 and the Act of 1898. Tin; court held that sec. 13 of the former act, providing for the analysis of milk in the presence of witnesses, was impliedly repealed by secs. 4, 6, 7, and 8 of the latter act. Also that sec. 7 of the Act of 1895 was repealed by the Act of 1898, changing the marketable standard of milk.</p> <p>District of Columbia, v. Burns, 32 App. D. 0. 203, was an appeal from the police court, after there had been a finding of not g’.dfiv in that court, where there lmd boon a ruling that the Act of 1898, fixing a standard of not less than 3| per cent of butter fat in marketable milk, was repealed by tlie Act of 1906. This court refused to disturb the judgment of the police court, because there had been a finding of not guilty in that court, and, without deciding, suggested that tlie Act of 1898 had not been repealed in the respect referred to. This view of the law seems to be confirmed by a recent decision of the Suprume Court of the United ¡States in Ilwlchinson Ice Cream Co. v. Iowa, decided December 4, 193 6, No. 3, Advanced Sheets p. 28, where the law of the State fixing the standard of butter fat to be contained in ice cream was sustained.</p> <p>District of Columbia v. Gobum, 35 App. D. C. page 325, involved the question of process butter. In this case it was held that provisions of the Act of 1808 wore repealed by those of 1906, where there was inconsistency between the two.</p> <p>Dade v. United States, 40 App. D. C. 94, sustained a prosecution under the Act of 1906, where milk contained bacteria of the colon group, and was shown to bo filthy, decomposed, and adulterated.</p> <p>In Savage v. Jones, 225 XT. S. 501, the court sustained the statute of the State of Indiana, requiring Savage to register a preparation for domestic animals known as “international stock food,” under the claim that it was a prepared or patent medicine within the meaning of the revenue laws.</p> <p>In Sligh v. Kirhu'ood, 237 XT. S. 52, 62, the court uphold the statute of Florida forbidding the shipment of grains and citrus fruits.</p> <p>In Armour v. North Dakota, 240 XT. S. 510, a State law requiring lard to be put up in pails of certain net, pounds weight was upheld as not repugnant to the Act of 1906.</p> <p>In Hutchinson Ice Cream Co. v. Iowa, supra, the State law fixing the standard of pure food for ice cream was sustained.</p> <p>Standard-Stock Food Co. v. IXright, 225 IT. S. 540, involved the statute of Iowa, providing for the inspection of concentrated foodstuffs and fees prior to being placed upon the market. See also United States v. Rinchina, District Court for the 3d District of Arizona, October 21, 1911, N. J. No. 1450.</p> <p>The decision of other Federal courts and of the Attorney General was to the same effect.</p> <p>United States v. Rinchini, supra, held that there could be no prosecution under the Act of 1906 for selling ice cream containing less than 15 per cent of .butter fat, there being no law or regulation in the United States providing a standard for ic« cream. Savage v. Scored, 171 Fed. 566, involved the statute of Kentucky, calling for the disclosure of the ingredients of stock food.</p> <p>In 26 Ops. Atty. Gen. 166, Charles J. Bonaparte, then Attorney General, rendered an opinion, February 23, 1907, in which he ruled that the Act of Alarch 2, 1897, relating to the inspection of tea, was not in conflict with the Pure Food Law of 1906.</p> <p>Iii 26 Ops. Ally. Gen. 311, decided July 7, 1907, the Attorney General held that the Drugs and Medicine Act of 1848 was not inconsistent with the Act of 1906.</p> <p>In 30 Ops. Atty. Gen. 164, decided May 24, 1913, by I. 0. McReynolds, ilion Attorney General, it was held that the Meat Inspection Law of June 30, 1906, was not inconsistent with the Food and Drugs Act passed on the same day. This ruling bears an important analogy to the case at bar, as the Meat Inspection Act pi’ovided for the inspection of meat before being put upon the market as the Act of 1895 seeks to protect the source of milk supply before that article is brought into the District.</p> <p>Boston v. Shaw, 1 Mot. 130 : “When a new power, and also the means of executing it, are given by statute, that power can be executed in no other way.”</p> <p>Elder v. Bemis, 2 Met. 599: “And for the violation of the prohibition in the statute, the plaintiff is entitled only to the statute remedy.”</p> <p>Ward, v. Severance, 7 Cal. 126: “Where a new right is introduced by statute, the party complaining of its violation is confined to the statutory remedy, so far as the courts of common law are concerned.”</p> <p>Iillis v. Paige, 1 Pick. 43: “It is a well-settled rule that when any statute is revised or one act framed from another, some parts being omitted, the pads omitted are not revived by construction, but are to be considered annulled.”</p> <p>Nichols v. Squire, 5 Pick. 168 : “And where the legislature imposes a second penalty for an offense, whether smaller or larger than the former one, a party cannot bo allowed to sue on one or the other at his option.”</p> <p>French v. Spencer, 21 How. 228, 16 L. ed. 97: “And then, what, is the rule ? One that cannot be departed from without assuming on the part of judicial tribunals legislative power. It is, that where the legislature makes a plain provision without exception, the courts can make none.”</p> <p>United States v. Tynan, 11 Wall. 153.</p> <p>“But if the two are repugnant in any of their provisions, the latter act, without any repealing’ clause, operates to the extent of the repugnancy as a repeal of the first; and even where two acts are not in express terms repugnant, yet if the latter act covers the whole subject of the first and embraces new provisions, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act.”</p> <p>Gallan v. District of Columbia, 16 App. 31. C. 275: “'While repeal bv implication is not favored, where the latter enactment covers the whole subject-matter of the previous law and is plainly intended to prescribe the only rule Avhich shall govern, repeal by implication is just as effective as express repeal.”</p> <p>Fulton y. District of Columbia 2 App. D. C. 431: “When a later act covers the Avhole subject of a former one, especially AA-hen the later act contains neAV proA'isions, the later act Avill be construed to repeal the former.”</p> <p>United States ex rel. Bride v. Macfarland, IS App. 1). C. 120:. “Where the later of two acts, though not in express terms repugnant, covers the whole subject of the first and embrace's new provisions, plainly shoAving that it Avas intended as a substitute for the first, it Avill operate as a repeal of that act.” Newman y. United Slates, 41 Wash. L. Hep. 734: “A statute relating to the same subject-matter and intended as a substitute for it, if valid, has the effect of repealing the former act.” District of Columbia v. Coburn, 35 App. D. C. 324: “While repeals by implication are not favored, AAdiere there is a clear repugnancy betAveen the later and earlier statutes, they cannot subsist together; and so, held, that the provision of the Act of J une 30, 1906, 30 Stat. at L. 768, relative to the sale of adulterated or process butter, supersedes the proAdsion of the Act of February 17, 1898, relating to the same subject.”</p>

<p>Ewinr; Statute of Frauds; Specific Performance; Landlord and Tenant; Notice; Velndob and Purchaser.</p> <p>1. AVlóle the Statute of Frauds is equally binding upon courts of equity and courts of law, its requirements will lie relaxed in equity where to enforce the statute will make it an instrument of fraud.</p> <p>2. A parol contract concerning land will be specifically enforced, notwithstanding its invalidity under the Statute of Frauds, where the party seeking its enforcement has been induced to alter his position on the faith of the contract to such an extent that it would be a fraud on the part of the other party to set up its invalidity, and where the acts of part performance have been clearly such as to show they are referable to the parol contract.</p> <p>3. Where on reliance upon a parol agreement for a lease for more than one year, and a lease embodying such agreement, but executed not by the lessor but by his attorney, the tenant entered into possession of the demised premises and expended large sums of money, equity, at the suit of the tenant, will enforce the agreement, notwithstanding the invalidity of the lease under see. 492, 3). C. Godo (31 Stat. at L. 1267, chap. 854), providing that no estate for a longer period than one year may “be created or take effect except by deed signed and sealed” by the lessor; see. 498, that no deed may be executed by an attorney; and see. 3116 (31 Stat. at L. 1367, chap. 854) that every estate in laud for a greater term than one year attempted to be created by parol or otherwise than by deed shall be an estate by sufferance.</p> <p>4. A purchaser of land with notice of a prior equity superior to the rights of his grantor takes his place, and is bound to do that which in equity his grantor ivas bound to do; and specific performance will be decreed against such a purchaser in the same manner and to the same extent as it would have been decreed against his grantor.</p>

TIkartng on an appeal by the caveator from an order of the Supreme Court of the District of Columbia, sitting as a probate court, admitting a will to probate after a contest over its validity. The Court in the opinion stated the facts as follows: Sarah. E. Moore died leaving what purports to be her will. George Moore, one of the heirs at law and next of kin of the decedent, filed a caveat against the will. Three questions were formed for submission to a jury.

Hearing on an appeal from an order of the Supreme Court of the District of Columbia, sitting as a probate court, requiring executors to pay a legatee his distributive share of the estate.

<p>IIkaiuno ou an appeal from a decree of tlie Supreme Court of the District of Columbia, construing a will.</p> <p>Tlie Court in tlie opinion stated the facts as follows:</p> <p>This is a special appeal from a ruling in the supreme court of the .District that, under the will and codicil of Eliza I). Ilerrell, late of the District of Columbia, appellant, George X. Ilerrell, is entitled to the income of a one-sixth part of the real estate for life, the remainder to vest in his issue in the event that he shall die leaving issue, otherwise the remainder to pass to the appellees, Henry W. Ilerrell and Annie E. Ward.</p> <p>So far as applicable, the will and codicil, dated November 29, 3 901, and February 21, 3 908, respectively read as follows:</p> <p>“1 give, devise, and bequeath all the real estate of which I may die seised and possessed to my daughter, Annie E.-Ward; my son, Henry W. Ilerrell, and my grandson, George A. ilerrell, in fee simple, in the proportion of three sixths to my daughter, Annie E. Ward; two sixths to my son, Henry W. Ilerrell; and one sixth to my grandson, George Ar. Ilerrell; provided that if my grandson should die. without issue, then I devise and bequeath the share, of my estate which would otherwise go to him to my daughter, Annie E. Ward, and my son, Henry W. Ilerrell, their and each of their heirs and assigns:</p> <p>‘‘Whereas, by my said last will and testament, I devised all my real estate to my daughter, Annie E. -Ward; my son, Henry AY. Ilerrell; and my grandson, George N. Ilerrell, — in fee simple, in the proportions of three sixths to my daughter, two sixths to my son. and one sixth to my grandson. YIv grandson, having left the District of Columbia, and his whereabouts being unknown to me, it is my will that the aforesaid devise to him. lapse and become null and void, in tlie event of liis death before me; or in case he should die before my estate is settled. In all other respects, I confina my said last will.”</p>

<p>Hearing oh an appeal by two of tliree defendants from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover damages for personal injuries alleged to have been caused by tbe negligence of the defendants.</p> <p>The facts are stated in the opinion.</p> <p>Ahern v. Melvin, 21 Pa. Super. Ct. 462; Baltimore & O. R. Co. v. Savinylon, 71 Md. 599, 18 Atl. 971; Dailey, Personal Injuries, 2d ed. § 795; Bard v. Yohn, 26 Pa. 482; Barnes v. Snowden, 119 Pa. 53, 12 Atl. 804; Benedict v. Potts, 88 Md. 52, 40 Atl. 1067; Boston v. Goon, 175 Mass. 283, 56 N. E. 287; Brookville v. Arthurs, 130 Pa. 501, 18 Atl. 1076; Brown v. Peterson, 25 App. I). C. 359; G. & O. R. Co. v. Sparrows, 98 Va. 630, 37 S. E. 302; Capital Traction Co. v. Yawl or, 37 App. D. C. 29; Cohen v. Ilenry Siegel Co. — Mass. —, 107 N. E. 912; Collins v. Jonesville, lllWis. 348, 87 N. W. 241; Crane y. Morris, 6 Pet. 598, 8 L. ed. 514; Dicey, Parties, 230, 233, 234, 432; District of Columbia v. Brewer, 7 App. D. O. 113; Douglass v. Mitchell, 35 Pa. 443; Dutton v, Lansdowne, 198 Pa. 563, 48 Atl. 494; Houston R. Co. v. Boone, — Tex. —, 131 S. W. 616; Howes v. District of Columbia, 2 App. D. C. 188; Re RivMn, 216 Eed. 218; Jacqmtte v. Capital Traction Co. 34 App. D. C. 41; Johnson v. Brady, — Ind. —-, 109 N. E. 230; Kelly y. Doody, 116 N. Y. 275; Kelly y. Jackson, .6 Pet. 622, 8 L. ed. 523; Kennedy v. Philadelphia, 220 Pa. 273, 69 Atl. 748; Louisville & N. R. Co. v. Eves, 1 Ind. App. 224, 27 N. E. 580; Louisville & N. R. Co. v. Victory, 104 Xy. 509, 47 S. W. 440; Laugh orne v. Richmond R. Co. 01 Va. 369; Lohr y. Phillipsboro, 156 Pa. 246, 27 Atl. 133; .Looney v. Mel. 11. Co. 200 U. S. 480, 50 L. ed. 564; McCormick Harvesting Mach. Co. y. Gabrís, 130 111. App. 624; Mc-Donough v. James Reilly Repair & Supply Go. 93 N. Y. Sapp. 222; McGrath y. St. Tjowis Transit Co. 197 Mo. 97, 94 S. W. 872; McTaggert v. Maine C. Ii. Co. — Me. —, 60 Atl. 1027; Metropolitan 11.'Co. y. Moore, 121 U: S. 569; Miller y. Highland Ditch Co. 87 Cal. 430, 22 Am. St. Pep. 254; Mooney v. Edison Electric Illuminating Co. 185 Mass. 547, 70 N. E. 933; Moshevvel v. District of Columbia, 191 TI. S. 170; Mulch ey y. Methodist Religious Soc. 125 Mass. 487; N. ,c6 W. R. Co. y. Cromer, 99 Va. 763, 40 S. E. 54; N. é W. R. Co. v. Johnson, 103 Va. 787; Navigation Co: v. Richards, 57 Pa. 142, 98 Am. Dec. 211; Parsons v. Winched, 5 Cusli. 592, 52 Am. Dec. 745; Parrott v. Wells, F. •& Co. 15 Wall. 524, 21 L. ed. 20G; Prest-O-Lite Co. v. Sheet, — Ind. —, 106 N. E. 865; Railroad Go. v. Loche, 112 Ind. 404, 2 Am. St. Hep. 193; Railway Go. v. Ilenrice, 92 Pa. 431; Ridley v. Knox, 138 Mass. 83; Robb v. Gonnelsville, 137 Pa. 42, 20 Atl. 564; Seavey v. Langhan, 98 Me. 517, 57 Atl. 796; Smith v. Lawrence, 98 Me. 92, 56 Atl. 455; Sorenson v. Menosha Paper Go. 56 Wis. 338, 14 N. W. 446; Sowell v. Champion, 6'Ad. & El. 415; State v. Standard Oil Go. — Md. —, 96 Atl. 202; Stras-Imrger v. Vogel, 103 Md. 85, 63 Atl. 202; Sullivan v. Capital Traction Go. 34 App. D. O. 358; Swart v. District of Columbia, 17 App. D. C. 407; Washington Gaslight Go. v. Poore, 3 App. D. C. 127; Weaver v. Baltimore & O. R. Co. 3 App. D. C. 436; Whart. Neg. 421; Yarnell v. Kansas City R. Go. 113 Mo. 570; 30 Cyc. 125, 126.</p>

Hearing oh an appeal liv the defendant from a judgment of the Supreme Court of the 'District of Columbia, on verdict, in an action on a contract to pay a percentage of the gross amount recovered on a claim against the United States. The facts are stated in the opinion.

Hearing on an appeal by the plaintiffs from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action against the District of Columbia to recover damages for alleged personal injuries. The facts are stated in the opinion. Augusta v. Tharpe, 113 Ga. 153; Buchanan v. Duluth, 40 Minn. 402; Blodgett v. Royalton, 17 Yt. 40; Bouvier’s Diet. Plan; Burke v. District of Columbia, 42 App. D. C. 438-441 ; Barnes v. District of Columbia, 01 IT.

<p>Hkarixo on an appeal by two defendants from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action of replevin.</p> <p>The Court in tbe opinion stated the facts as follows:</p> <p>This appeal [by John Gill & Sons, a corporation, and W. G'. Cornell Company, a corporation] is from a judgment in tlie supremo court of the District for the appellee, the ICahl-IIolt Company, a corporation, plaintiff below, sustaining its claim of title, under an unrecorded conditional sale agreement, to certain material furnished by it to a subcontractor.</p> <p>The appellant W. G. Cornell Company was the general contractor to furnish and install heating and ventilating systems and the plumbing and electric lighting for the new Washington city postoffice. About February 3, 1912, Samuel O. Bevans entered into a subcontract with the Cornell Company to do the sheet metal work in connection with the heating and ventilating. This subcontract provided that in certain named contingencies the contractor should be at liberty to terminate the employment of the subcontractor “and to enter upon the premises and take possession, for the purpose of completing the work under this contract, of all materials, tools, and appliances thereon. . .</p> <p>The appellee, the Kahl-IIolt Company, of Baltimore, Maryland, verbally agreed to furnish Bevans with the necessary material for use in performing his subcontract; but this material was to remain the property of appellee until erected in the building, and was to be paid for as fast as Bevans was paid for the amount of work done, “all material which might be left on the job” to be returned at the expense of the appellee. In-short, as the jury found, the sale was conditional.</p> <p>Subsequently, on May 8, 1912, Bevans made application to the Maryland Casualty Company for a bond to guarantee performance of his contract with the Cornell Company. The application provided that, in consideration of the execution of the bond, should Bevans fail to complete the work covered by the bond or in the event of any default on his part, he assigned, transferred, and conveyed to the casualty company, as of the date of the application, all his right, title, and interest in and to all the tools, plant, and equipment, and material of every nature and description that he might then or thereafter have upon said work or in or about the site thereof.</p> <p>About five carloads of galvanized sheet iron were shipped by the Kahl-IIolt Company to Bevans, and the last lot shipped in October of 1913 was not paid for and is involved here.</p> <p>In November of 1913 a dispute arose between Bevans and tbe Cornell Company, which finally resulted, in the discontinuance of work by Bevans. Thereupon the Cornell Company directed its foreman to seize, all material which Bevans had upon the site of the work. Appellee, the Ivahl-IIolt Company, asserted its right to the material which it had shipped to Bevans and which he had “left on the job.” The Cornell Company' thereupon informed the "Maryland Casualty Company of the situation, and was authorized by that company to seize this; material for it and in its name, wliich the Cornell Company did. Immediately thereafter this suit was brought, which resulted in a verdict for the material or its value, $911.20, with i merest.</p> <p>lit the first assignment of error it is alleged that the court erred “in refusing to grant the motion of the defendant to direct a verdict in favor of the defendants.” The contentions put forward under this assignment are that the Casualty Company was in the relation of a bona fide purchaser with respect to the material replevined, and lienee that its authorization to the Cornell Company put the latter company' in lawful possession of the material; that the Cornell Company, hv the terms of its contract with Bevans and by the evidence, was in the relation of a bona fide purchaser for value with respect to such material, and hence that its title was superior to that of the appellee.</p> <p>The charge of the court-, to which no exception was taken, submitted to tbe jury the question as to the character of the sale by appellee to Bevans, and by the verdict it is settled that the sale was a conditional one. The court further properly submitted to the jury' the question whether the Cornell Company “advanced money to Bevans not due him, hut advanced it, on the strength of his apparent ownership of this property,” and that question likewise was determined against this appellant. The only question which we may consider under this assignment, therefore, is whether the rights of the Casualty Company' and the Cornell Company', as assignees of Bevans, were superior to those of his conditional vendor, the appellee. Appellants' contention that they' are is based upon sec. 541 of our Code, which provides that an unrecorded conditional hill of sale shall not bo valid as against third persons "'acquiring title to said property from said purchaser without, notice of the terms of said sale.”</p> <p>Arbuncle v. Kirkpalrick, 98 Tenn. 221; Benjamin, Sales, Rule 23, p. 80; Chamber v. Greemoood, 68 N. Ii. 274; Clow v. Woods, 5 Serg. & R. 286; Concord Land & Water Power Co. v. Clough, 70 N. II. 627; De La Vergne Mach Co. v. Karrick; Hervey v. Ii. I. Loc. Co. 93 IJ. S. 664; Huntsman v. Nichols, 116 Mass. 521; Re .Robineau, 118 Fed. 473 ; Logan v. Monroe, 20’Me. 257; 1 Mackey, 34; Marsh v. Pier, 4 Rawle, 273; Marlin v. Mathiot, 14 Serg. & R. 214; M. R. 8. é D. Co. v. R. Co. 91’Wis. 447, 65 N. W. 176; Robb v. Glerson, 10 Serg. & R. 419; Rose v. Story, 1 Pa. 190; Root v. French, 13 Mend. 570.; Ryans v. Harper, 167 Mo. 342; Ryle v. Knole.s Loom Works, 87 Fed. 980; Thomp. Trials, § 989; Migmore, Ev. p. 3529; Wood v. U. D. F. & G. Co. 143 Fed. 424. ‘</p> <p>' Bcuum v. Knabe & Co. 33 App. T). C. 240; De, La Vergne, Mach. Co. v. Karrick, 43 Wash. L. Rep. 290; Fosdick v. Schall, 99 U. S. 235; Johnsons. Tribby, 27 App. D. C. 281; Security Invest. Co. v. Garrett, 3 App. D. O. 69; United States v. New Orleans R. Co. 12 Wall. 362; Wood v. United States Fidelity & G. Co. 143 Fed. 424; Woolley v. Geneva Wagon Co. 59 N. Í. B. 278.</p>

<p>RcnooT.s; Board of iOwrcATicnsr.</p> <p>1. The Board of education of the District of Columbia has no power to appoint a teacher to an eighth grade school'and under such appointment require her to pen-form the services of a high school teacher of a given grade; and if she performs such services she is entitled to recover from the District of Columbia the difference between the salary paid her as an eighth grade teacher and the salary due her as a high school teacher, together with longevity pay due her as a high school teacher. (Construing acts of Congress of June 20, 1906, 34 Stat. at L. 316, ehap. 3446, aiul March 3, 1909, 35 Stat. at L. GSS, chap. 250; and citing District of Columbia v. Martin, 34 App. D. C. 265.)</p> <p>2. The board of education of the District of Columbia has power to employ from time to time a sufficient number of teachers in the public schools to keep the schools in operation, provided the teachers possess the qualifications and are classified as required by statute; and the board is not prohibited, as are the commissioners of the District, from creating obligations in excess of existing appropriations. (Construing acts of Congress of June 8, 1906, 34 Stat. at L. 219, chap. 3054, and March 4, 1909, 35 Stat. at L. 907, ehap. 298; and citing Myers v. District of Columbia, 25 App. D. C. 132, and United Slates ex rel. Kalle v. Hoover, 31 App. D. C. 311.)</p>

Hearing on an appeal by the defendant from a judgment of the Supremo Court of the District of Columbia, on verdict, in an action of libel. The Court in the opinion stated the facts as follows: This is an action for libel.

Hearing- on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia, holding an equity court, in a suit by a wife for separate maintenance of herself and child. The Court in the opinion stated the facts as follows: Isabel C. Lasier brought action under the statute against her husband for separate maintenance for herself and their minor child.

Hearing on an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia, on a verdict directed by tbe court, in an action to recover money deposited under a contract for tbe purchase of real estate.

TTearinu on an appeal by the defendant from decrees of the Supreme Court of the 'District, of Columbia granting the relief asked in a suit in equity to enforce a mechanic's lien. The facts arc stated in the opinion.

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

<p>Hjeaiuxu on a motion to dismiss an appeal.</p> <p>Tbe 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, sitting as an equity court, denying a motion to dismiss a bill of complaint in a suit to establish a lien upon a fund in the Treasury of the United States, and, the defendants declining to plead, granting the relief prayed for.

Hearing on an appeal by the plaintiffs and some of tbe. defendants from an order of tbe Supreme Court of tbe District of Columbia, sitting as an equity court, denying certain prayers of a petition in a partition proceeding. Tbe facts are stated in the opinion.

Hearing on an appeal by tbe relator from a judgment of tbe Supremo Court of tbe District of Columbia overruling a demurrer to an answer to a rule to show cause issued'on petition for a writ of mandamus, and tbe relator electing not to further jilead, discharging tbe rule and dismissing tbe petition.

ITuauing on an appeal by the exceptants from an order of the Supreme Court of the District of Columbia sitting as a probate court, overruling exceptions to a report of a Special l\ 1 aster. The CoxntT in the opinion stated the facts as follows: The appellants, Amy X. Mayo, John L. Girdler, and ITclen Girdler, claim under the following clause of a will: “Seventh.

Hearing on an appeal from a judgment of the Supreme Court of the District of Columbia, dismissing a petition for a writ of mandamus after tbe court bad refused to issue a rule to -show cause.

Hearing on an. appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, on a verdict directed by the court, in an action to recover a sum of money retained as a fee by the plaintiff’s former attorney. The facts are stated in the opinion,.

ITkari.xg on an appeal l>v the plaintiff from a judgment of ibe ¡Supreme Court of tbe District of Columbia in an action to recover tbe purchase price of machinery sold by tbe plaintiff to the defendant. Tbe facts are stated in tbe opinion.

<p>Evidence; Carriers; Negligence; Trial; Instructions to Jury; Charge to. Jury; Aiteal an» Error.</p> <p>1. In an action to recover damages for personal injuries to the plaintiff while a passenger of the defendant, a street railway company, by having his hand struck by a trolley pole located a few inches from the car as he made a gesture, which carried his hand through the car window which was open, evidence of similar accidents caused by other poles located in proximity to the one in question is admissible for the purpose of showing that the company had notice that its poles were so near its passing cars as to endanger the safety of passengers.</p> <p>2. Where in an action for damages for personal injuries against a street railway company by one who was a passenger of the defendant when injured, the declaration in another action is admitted for the sole purpose of showing notice to the defendant of the dangerous proximity of trolley poles to its passing cars, the entire record in that action is not admissible on the offer of the defendant for the purpose of showing that there was a verdict for the defendant.</p> <p>3. Whether iron bars, 3 inches apart, guarding the open windows of an electric railway car, give a. warning to a passenger to keep all portions of his body within the ear, and, if they do, whether the warning is sufficient, are questions of fact, and not questions of law, in an action against the railway company by one, who, while a passenger, made a gesture and in doing so extended his hand through a window opening so guarded and was injured by being struck by a trolley pole. (Distinguishing Chapman v. Capital Traction Co. 37 App. D. C. 479.)</p> <p>4. Common carriers of passengers are bound to exercise extraordinary vigilance for the purpose of protecting their passengers against injury resulting from defects in ways and instrumentalities used by them.</p> <p>5. Where in a personal injury action against an electric railway company, one of the issues is as to whether the company was negligent in maintaining its trolley poles so near passing e,ars as to endanger the safety of passengers in the ears, evidence is admissible regarding the swaying of the cars as they pass the poles.</p> <p>6. The fact that its trolley poles were located with the approval of the municipal authorities, does not relieve a street railway company of the charge of negligence, in an action to recover for personal injury to the plaintiff whose hand was injured by reason of the close proximity of one of the poles to the ear in which he was a passenger.</p> <p>7. It is not error for the trial court to fail to instruct the jury in a personal injury action upon the subject of the burden of proof as to negligence and contributory negligence, where no prayer for instruction on the subject, correct in point of law and applicable to the facts, is asked. 8. It is not error for the trial court to refuse a prayer for instruction asked by the defendant in an action against a street railway company in which the plaintiff' claims he was injured by his hand coming in contact with one of the defendant’s trolley poles while he was a passenger in a car of the defendant and while, he was sitting near an open window, to the effect that in order to find for the plaintiff the jury must find that the pole "unnecessarily and negligently imperiled the safety of passengers.”</p> <p>9. It is not ilie duty of the trial court to remodel a prayer for instruction.</p> <p>10. A charge to the jury to the effect that the jury must not presume, but must determine from the evidence, that the defendant was negligent, in order to lind against him, is equivalent to a refused prayer for instruction asked by the defendant to the effect that no presumption of negligence on the part of the defendant arises in the case from the mere, happening of the accident.</p> <p>11. A prayer for instruction partly erroneous is properly refused.</p> <p>12. In an action against a street railway company for injuries received by the plaintiff who, while a passenger on one of the defendant’s ears, extended his arm through the bars which guarded an open window and" received an injury to his hand, which was struck by a trolley pole, a charge to the jury which, after reciting that the plaintiff testified he had almost involuntarily thrown his hand outward, and that the conductor had testified that the plaintiff told him he had put his hand out of the window' to call the attention of his companion to some work he had previously done in that vicinity, stated that whichever way the jury might find the fact to be, they would have to consider Hie question whether what the plaintiff did was the act of a reasonably careful and prudent man in the circumstances, cannot be properly construed, as giving the jury to understand that the plaintiff would not he chargeable with negligence unless ho knowingly and intentionally protruded his hand beyond the window bars.</p>

<p>ITkarjng on an appeal by the defendants from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover damages for breach of a contract of sale.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This suit was brought by the Billings-Chapin Company to recover a balance of account claimed to be due for paints and painters’ supplies sold and delivered to defendants, Robert Rowdier, Adolph Rowdier, and Louis L. Rowdier, a partnership, doing business in the name of Robert Rowdier & Sons. A statement of account is filed with the declaration, showing the account to have been with Rowdier & Sons.</p> <p>Defendants, together with their pleas of nil debit and non assumpsit, filed a notice of recoupment, in Avliich it Avas alleged that defendants Avere only guarantors for a partnership known as the Washington Hardware & .Paint Company, consisting of .Louis L. BoAvdler and one Hopper, who is not a party to this action; that plaintiff Avell Iciicav the materials Avere purchased for resale by the Washington IlardAvare & Paint Company; that certain of flie goods purchased by plaintiff were totally defective and other goods were of inferior quality, and that, by reason of the defective and imperfect material furnished by plaintiff, the, Washington HardAvare & Paint Company suffered damage;, generally and specially, by the refusal of one Nicho!Is to use the paint on twenty houses about to bo constructed by him and by the loss of other trade and custom, amounting to more than $1,500. The notice further stated that, Rowdier & Sons being merely guarantors, their obligation is no greater than that of the Washington Hardware & Paint Company, and they are therefore in position to avail themselves of any defense to which the principal might be entitled.</p> <p>Accumulator Go. v. Dubuque R. Go. 27 H. S. App. 364; Armour v. Qundersheimer, — App. D. 0. —; Benjamin, Sales, §§ 045, 661; Benolhen v. Guthrie, 111 Wis. 554; Brown v. Edging ton, 2 M. & G-. 279; Bryant v, Crosby, 40 Me. 9; Dowagic Go. v. Gibson, 73 Iowa, 525 ; Blerich v. Reid, 54 Kan. 579 ; Endsley at. Johns, 120 111. 469; English v. Spokane Go. 15 U. S. App. 218; Flynn v. IJation, 43 How. Pr. 333; Gottfried Brewing Co. v. Scarkowshi, 79 111. App. 583; Henshaw v. Robbins, 9 Met. 83; Johnson v. Sproull, 50 Mo. App.-121; Kellogg Bridge Go. v. Hamilton, 110 U. S. 108; Landsberger v. Magnetic Tel. Co. 52 Barb. 530; La Porte Improv. Co. v. Brock. 99 Iowa, 489; McClung v. Kelley, -21 Iowa, 508; McLennan v. Ohmen, 75 Cal. 558; Merrillat v. Plummer, 111 Iowa, 043; Omaha & Go. y. Fay, 37 Neb. 68; Rice v. Galbrealii, 119 Ala. 424;- Smith v. Hightower., 76 Ga. 629; Stanton v. Jerome, 54 N. Y. 480; Strand v. Griffith, 97 Fed. 854; Swain v. Schreffelin, 134 App. Div. 471, 12 N. Y. Supp. 155.</p>

Hearing on an appeal by the plaintiff from a decree of the Supremo Court of tbe District of Columbia dismissing a Dill in equity to enjoin the Secretary of tbe Interior from approving and delivering certain mineral leases to Indian lands. The facts are stated in the opinion. Addyston Co. y. United Stales, 175 F. S. 211; Anchor v. Howe, 50 Fed. 866; Angel! v. Angell, 28 it. 1. 592; A tty. (Jen. v. Broten. 1 Swan, 265; Ally. Gen. v. Heelis, 2 Sim. k Stu. 67; Ally.

Hearing on an appeal from a judgment of tlie Supreme Court of the District of Columbia, on a directed verdict by tlie court, in an action of ejectment. The'Court in the opinion stated tlie facts as follows: The appellant, Mary Johnson Henderson, plaintiff below, brought her action to recover possession of an undivided one-third interest in certain land located in this city.

<p>IFkarinc on an appeal from a decree of the Supreme Court of the .District of Columbia, sitting as an equity court, dismissing a bill for partition.</p> <p>Tbe facts are stated in the opinion.</p>

<p>Patents; Interference; Disclosure.</p> <p>1. In an interference involving the invention of means for operating a single sleeve valve in a four-cycle internal combustion engine, the disclosure by one of the parties in the provisional specification of an application filed by him in Great Britain was held to disclose the elements of the invention as described in one of the counts of the issue, sufficient to enable one skilled in the art to understand their construction and mode of operation.</p> <p>2. Where an interference involves an improvement in a well-developed art, and it is convincingly established that one of the parties is the prior inventor of the broad subject-matter of the improvement, the more specific counts of the issue should be interpreted in the light of the general disclosure.</p> <p>3. Where, in an interference involving the invention of means for operating a single-sleeve valve in a four-cycle internal combustion engine, the question was as to whether one of tlm parties had disclosed in the provisional specification of his British application the invention as described in one of the counts of the issue, and it appeared that in such provisional specification he stated that the sleeve “is slightly longer than the full length of the cylinder, the extra length projecting beyond the lower or outer end of the cylinder itself, where it is provided with a pin, projecting from and jointed to its outer circumference, which pin is engaged by a crank disc, or the like,” while in his application in interference ho described the crank pin as having “its projecting outer end hinged to the ears aforesaid on the lower end of the sleeve,” it was held, reversing a decision of the Commissioner to the effect that the pin on the cylinder in addition to tbe crank pin was not described in the British specification, that the word "jointed” in that specification necessarily meant a hinge joint, and, giving it that meaning, disclosure was made of the hinge pin which connected the crank pin to the valve sleeve.</p>

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

Nearing on an appeal from a derision of tlic Commissioner of Patents in a proceeding in opposition to the registration of a trademark. The facts are stated in the opinion:

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

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

Hkaring on an appeal from a decision of the Commissioner of Patents dismissing an opposition to the registration of a word as a trademark. The facts are stated in the opinion.

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

<p>Deeds; Delivery; Burden of Proof; Acknowledgment; Equitable Conversion; Wills; Construction.</p> <p>1. The burden of showing that a deed in the possession of the grantee at the time of his death was never actually delivered to him is upon the grantor. (Citing Garusi v. Smary, 6 App. D. C. 330; and Walker v. Warner, 31 App. D. C. 76.)</p> <p>2. Where a deed sufficient to vest a title is delivered to the grantee, the intent of the parties thereto must be determined by reference to ' the deed itself, as in such case the law raises the presumption of an intent to pass the title in accordance with its terms, and not otherwise. (Citing ’Newmam v. Baker, 10 App. D. C. 1S7; Bieber v. Gmis, 24 App. D. C. 517; and Walker v. Warner, supra.)</p> <p>3. The verity of a notary’s certificate to a deed cannot be impeached by the unsupported and equivocal testimony of the grantor to the effect that she had never seen the notary until a date later than the date in the certificate; since to overcome Die presumption arising from such a certificate, there must be proof of gross concurrent mistake or fraud, through strong and disinterested evidence. (Following Ford v. Ford, 27 App. D. C. 401.)</p> <p>4. Queers, whether an acknowledgment is necessary as between the parties to a deed. (Citing Fitzgerald v. Wynne, 1 App. D. C. 107; DuVvny v. Morse, 39 App. D. C. 523; and Staples v. Warren, 4G App. D. C. 363.)</p> <p>5. A contract for the sale of land effects an equitable conversion of the land into personalty; and, if the vendor dies before giving a deed to the vendee, his right to the unpaid purchase mor.ev passes to his personal representative. (Following Griffith v. Stewart, 31 App. D. C. 29.)</p> <p>6. Where a testator gave to his wife a certain sum, to be paid in cash to her, or, if she preferred, she might select an equal amount of his securities based on their face value, such bequest to take precedence and priority over, and to be paid and satisfied before, any of the subsequent bequests; one of which gave to the testator’s business associate certain stock wortli considerably more than par, it was held that llic widow could not take the stock so specifically bequeathed., for the reason that to permit her to do so would defeat the evident intention of the testator. (Mr. Chief Justice ¡Smyth. dissenting.)</p>

<p>Note. — On application of doctrine of last clear chance in case of imputed negligence, seo note in 26 L.R.A.(N.S.) 309.</p> <p>For authorities passing on the question as to whether one is guilty of contributory negligence, as a matter of law, in walking with due care upon a street railway track laid in a public street, see note in 9 L.R.A. (N'.S.) 244.</p> <p>The question of duty to look and listen before crossing- tracks of an electric road is discussed in notes in'15 Ij.R.A. (Nr.S.) 254, and 23 L.R.A. (N'.H.) 1224.</p>

<p>Hearing- on an appeal from a decision of tlie Commissioner of Patents in an interference ease.</p> <p>The facts arc stated in the opinion.</p>

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

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

<p>Hkaring 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>

<p>Trademarks; Registration; Abandonment; Assignment; Prior Use.</p> <p>1.Registration of a trademark establishes prima facie ownership in the registrant, and places the burden of proof on one claiming prior use.</p> <p>2.Use of a word as a trademark cannot he predicated upon an assignment of the mark by the former member of a dissolved copartnership, who on dissolution of the firm did not continue its business. Under such circumstances the mark becomes abandoned and subject to appropriation by anyone.</p> <p>3.In determining prior use of a mark, it is immaterial whether in its use it was printed or written on the goods, or on the container in which the goods were sold, so long as the mark conveyed to the purchaser knowledge of the origin or source of manufacture of the goods to which it was applied.</p>

<p>Hearing on a petition to reinstate an appeal which was dismissed because not taken within the time prescribed by the rudes-</p>

Hearing on an appeal from a decree of the Supremo (hurt of the District of Columbia, directing the sale of mortgaged property subject to an unrecorded lease.

Hearing on an appeal by the defendant from a decree of tbe Supreme Court of the District of Columbia against a retired partner of a defaulting copartnership. Tbe Court in tlie opinion stated the facts as follows: On May 2, 1913, tlie appellant, William A. Mearns, was a member of tbe partnership of Lewis Johnson & Company, this city, and continued to be until May 13, 1914-, when he withdrew therefrom, the continuing members taking the assets and assuming the liabilities.

Hearing on an appeal from a decree in the Supreme Court of the District of Columbia, sitting as an equity court, dismissing a bill to set aside an exchange of real estate. The Court in the opinion stated the facts as follows: This appeal is from a decree in the supreme court of the District dismissing a bill to set aside an exchange of real estate.

<p>ILkarino cm an appeal from a judgment of the Supreme Court of the District of Columbia denying a petition for the writ of habeas eoi*pus.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>An information ivas filed in the juvenile court of the District of Columbia charging appellant, William Posey, with the crime of nonsupport of his three minor children under the age of sixteen years, alleged in the information to be “domiciled in the District of Columbia.” Upon a plea of not guilty, he was tried, convicted, and sentenced to serve six months at hard labor in the Washington Asylum and Jail, to which lie was duly committed.</p> <p>Appellant then sued out a writ of habeas cor]ms in tbe Supreme Court of the District of Columbia to test the legality of his imprisonment, on the ground that the said children had at all times resided in the state of Virginia, and were not at the time the charge was made, or at any time theretofore or thereafter, domiciled in the District of Columbia, and that the juvenile court was, therefore, without jurisdiction in the premises. On hearing in the court below, the petition was denied, and, from the order, this appeal was taken.</p> <p>15 Am. & Eng. Enc. Law, 2d ed. 201, 202; 26 Am. & Eng. Enc. Law, 2d ed. 670; Bandy v. Ilehn, 10 Wvo. 167; Barbour v. 'Harris, 135 U. S. 356; Billingsley v. State, 3 Tex. App. 686; Ex parte Boilman, 4 Crunch, 75; Gallan v. Wilson, 127 U. S. 540; Be Clarke, 12 Gush. 320; Be Camion, 15 Pa. Co. Ct. 312; Be Coy, 127 U. S. 731; 21 Cyc. 326; Desty’s Eed. Proc. 6th ed. pp. 23, 24; Ex parle Dries, 3 App. D. C. 436; Elliott v. United States, 23 App. D. C. 457; 4 Enc. PI. & Pr. 32, 50, ct seq.; Fox v. Ilicks, 81 Minn. 197; Ex parte Frederick, 149 U. 'S. 70-; Be Harris, 68 Yt. 243; Be Haskell, 52 Eed. 795; Hendley v. Clark, 8 App. D. C. 171; Hickey v. Stewart, 3 Ilow. 762; Hunt v. Hunt, 94 Ga. 257; Be Jugiro, 140 II. S. 291; Justice v. Slate, 17 Ind. 56; Kellary. Davis (Neb.) 95 Y. IV. 1028; Kohly. Lohlback, 160 II. S. 293; McClaughry v. Doming, 186 U. S. 69 ; Be McKnight, 52 Eed. 299 ; Martin v. Com. 1 Mass. 347; Be Marsh, McArth. & M. 32; People ex ret. Campbell v. Dewey, 23 Mise. 267, 50 N. Y. Snpp. 1013; People v. Du Bell, 1 Idaho, 44; People y. O'Neal, 47 Cal. 109; Be Beynolds, 20 Eed. Cas. 11, 721; Bice y. State, 3 Kan. 141; Ex parle Siebold, 100 II. S. 37; Slearly's Appeal, 3 Grant, (Ms. 270; Smith v.- Clausmeier, 130 Ind. 115; Smith v. Territory, 104 Ariz. 95 ; Slate v. Herndon, 107 N. C. 934; State v. Ward, 8 N. J. L. 120; Be Taylor, 13 Fed. Cas. No. 13,774; Tenney v. Taylor, 1 App. I). C. 223; Ex parle Titus Hays, 25 Fla. 279; Ex liarte Tom Tong, 108 II. S. 556; Van Hoffman, 4 Ucdf. 2-14; Wood y. District of Columbia, 0 Mackey, 142.</p>

IIkartnc! upon an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia in an action on a promissory note. The Court in the opinion stated the facts as follows: ' Richard S. Wolfe was sued by Charles T. Murphy, guardian of Raymond F. G’lieen, a minor, upon a promissory note under seal, which was secured by a mortgage on real estate given by him to one Johnson.

Hearing oil an appeal from a judgment of tbe Supreme Court of the District of Columbia, under the 73d rule for want of a sufficient affidavit of defense, in an action on a promissory note. The Court in the opinion stated the facts as follows: Appeal from a- judgment under the 73d rule for the plaintiff, appellee here.

Hearing on an appeal from a judgment of the Supreme Court of the District of Columbia, under the 73d rule for want of a sufficient affidavit of defense, in an action on a promissory note. The facts are stated in the opinion.

<p>Heaeíng on an appeal by tlie plaintiff from a judgment of the Supreme Court in an action on a contract.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>The appellant, J. Carey 'King, and appellee, Fred B. Rhodes, were, respectively, plaintiff and defendant in the court below, and will in this opinion be so referred to.</p> <p>As the result of certain amendments and additions to the pleadings, the parties went to trial on a declaration containing three counts, in the first two of which the plaintiff sought to recover a balance of $1,250, with interest from November 23, 1912, alleged to be due and payable to him by the defendant on a written contract, or “order,”'as it is called in the declaration. The third count is based upon certain of the money and other counts in indebi talus assumpsit, and claims from the defendant a like sum as in the first and second counts, “according to the particulars of demand hereto annexed.” The annexed particulars of demand consist of a copy of the “order” substantially alleged in slightly different form in the first two counts of the declaration. The plaintiff alleged a full performance by him of the contract whereby there became due and payable to him by the defendant the amount stipulated in the contract, $2,050, of which $800 was paid, leaving the balance of $3,250, with interest, upon which the action was brought.</p> <p>The contract or “order” is in the words and figures following :</p> <p>Washington, 1). C., Oct. 29, 1913.</p> <p>Mr. Fred B. Rhodes will pay to the order of J. Carey King, for millwork, to complete those fifteen two-story dwellings on Church St. between lYtli and 18th Sts., N. W., now recorded in the name of Thos. R. Riley, the sum of two thousand fifty dollars * * $2,050.</p> <p>Partial payments to be made as materials are delivered, as follows:</p> <p>All sash ............................$ 1(57.50</p> <p>Blinds for 9 houses, at $15 each......... 135.00</p> <p>Doors & Transoms, 15 houses, at $38 each. . 570.00</p> <p>Ash Trim & Jambs, 15 houses, at $22 each. 330.00</p> <p>T. Pine Trim, Shelving, Dressers & Porch Kail, 15 Houses, at $30 each.......... 450.00</p> <p>15 Houses, Stairwork, at $20.50 each. .. . 397.50</p> <p>'. $2,050.00</p> <p>Charge same against me.</p> <p>(Signed) Frank L. Dyer.</p> <p>Above order accepted.</p> <p>(Signed) Fred B. Rhodes.</p> <p>Oct. 29, 1912.</p> <p>Eight pleas were filed by the defendant, but it is cleár from the record that the case was tried and disposed of on the issue's presented by the fourth and fifth pleas, which set up a renunciation and repudiation by the defendant of his contract with the plaintiff after the latter had delivered, under the contract, goods to the value of $300.</p> <p>Three errors are assigned as follows:</p> <p>“1. The court erred in directing a verdict for the defendant.</p> <p>“2. The court erred in refusing to permit the plaintiff to show the value of the material already delivered at the timo of the notification by the defendant to discontinue the delivery under the order of Frank L. Dyer.</p> <p>“3. The court erred in holding that the defendant could revoke, or repudiate, his acceptance of the said order.”</p>

Hkarino on an appeal by the defendant from a judgment of tlie Supreme Court of the .District of Columbia in an action. to recover elevator inspection fees paid under protest.

Hearing upon an appeal bj1- tbc plaintiff from a decree of tbe Supreme Court in an action to set aside an absolute deed to real estate. The Court in the opinion stated the facts as follows: Mrs. Talla II. Ingersoll gave to Mr. Cadwell Tyler a deed of trust upon real estate as security for the payment of her note in the sum of $1,100.

Hearing on an appeal from an order of the Supreme Court of the District of Columbia denying a writ of mandamus to compel the Secretary of the Interior to restore the petitioner to office. The Court in the opinion stated the facts as follows: Relator William F. Arant was appointed superintendent of Crater Lake National Park June 25, 1903. On June 1, 1913, the Secretary of the Interior of the United States requested relator to resign.

ITraiung on an appeal from a decree of tlie Supreme Court of the District of Columbia construing a will. The Court in the opinion stated tlie facts as follows: Appeal from a decree in tlie Supreme Court of the District of Columbia, construing tlie will of William Henry Barrett, late of the District, under the petition of the Union Trust Company as executor. The material portions of the will are as follows: “Item 1.

Hearing on an appeal from an order of the Supreme Court of the District of Columbia, dismissing a petition for a writ of mandamus to compel -the Commissi oners of the District of Columbia to publish a certain regulation.

IIkarixct on an appeal from a decree of the Supreme Com-t of 1he District of Columbia, dismissing a bill in equity to set aside an exchange of real estate. The facts are stated in the opinion.

Hearing on an appeal from a decree of the Supreme Court of the District of Columbia denying a petition to intervene in a cause heretofore considered by this court. The Court in the opinion stated the facts as follows: Appellants, Modern Workmen of the World,, and Modern Workmen of the World Society, filed a petition for leave to intervene as defendants in a cause heretofore considered by this court. Masters v. Hartmann, 45 App. D. C. 253.

<p>Party Wall; Right to Build; Estoppel.</p> <p>1. A landowner is not csloppod by liis failure to object to a party wall, where, during his absence from home, he received a letter from the architect of his neighbor stating that an addition to the latter’s residence would extend to the party line, and asking consent to the • extension • beyond it of the moldings and cornice, declaring that, in case of refusal, his neighbor had the right to build the wall of the addition centered on the party line, and he promptly wrote back liis refusal, and had no knowledge of the construction of the parly wall until his return home, when the wall was nearly finished.</p> <p>2. As the mutual benefit of the parties is the test of the right to build a wall upon a neighbor’s land under authority of a regulation by the President of the United States, adopted in pursuance of a condition in the deeds of both parties that the conveyances are subject to such building regulations .as ilie President may make for common convenience, safety, and order, a party wall may not be erected against tlie will of tlie adjoining owner, where he has already made important permanent improvements suitable to his property and the neighborhood, and the wall, if constructed, would not only materially destroy the enjoyment of his property in its present condition, but would also involve a radical change in the structure of his improvements, and cause him a large expense without any corresponding benefits. Citing Bmool v. Hcyl, 34 App. D. G. 480; Robinson v. Hillman, 30 App. B. ('. 570.)</p> <p>3. Equity has power to grant a mandatory injunction to compel the removal of a party wall, consi meted in violation of the rights and against the known opposition of the adjoining owner, so far as it encroaches upon his land. (Citing Weeks v. Heurich, 40 App. D. C. 40, Ann. Cas. 1914A, 972.)</p>

<p>Judgment or Court or Claims; Appropriation to Pay; Claimants; Suit Against United States; Jurisdiction; General Appearance.</p> <p>1. Wliere money lias been appropriated by Congress to satisfy a finding of the court of claims, the officials of the Treasury Department are charged with the ministerial duty of making payment upon demand of the person in whose favor the appropriation has been made, and may be compelled to make payment by mandamus, or a court of equity, with jurisdiction to appoint a receiver of llie fund and control its disposition, may compel its delivery through a mandatory writ of injunction. (Citing Sanborn v. R a jswe.lt, 18 App. D. ('. 245; Roberts v. Consentí, 24 App. 1). C. 551 ; Jones v. Rutherford, 2lj App. D. C. 114; and Rrtjtm v. Curtis, 2‘i App. D. C. 00.)</p> <p>2. A suit in equity by tlie administrator of an attorney, to establish a lien for attorney’s fees upon a fund in the Treasury of the United States appropriated by Congress to pay a judgment of the court of claims in favor of the attorney’s client, to enjoin the Treasurer and the Secretary of the Treasury from paying such fund to the client, and to have a receiver of the fund appointed, is not a suit against the United States, within the rule that the government cannot be sued except by its consent.</p> <p>3. The Secretary of the Treasury and the Treasurer of the United States joined with the claimant as defendants in an action to establish an attorney’s lien upon a fund appropriated by Congress to pay a judgment of the court of claims cannot object to the jurisdiction of the supreme court on the ground that debts due from the United States have no situs in the District of Columbia, where the claimant of the fund, a nonresident of the District, voluntarily appeared and answered without objection to the jurisdiction of the court.</p>

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

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

<p>Trademarks; Similarity; Opposition.</p> <p>S. A person may not register a trademark similar to one already in use by another engaged in a business of the same general nature, where the likely effect will be to lead to confusion concerning the goods themselves or their origin. (Citing Wayne County Preserving Go. v. Burt Olney Canning Go. 32 App. D. C. 279; Phoenix Paint & Varnish Go. v. John T. Lewis d Bros. Co. 32 xVpp. D. C. ¿85; Kwwt-Keilh, Shoe Co. v. International Shoe Go. 45 App. 15. C. 545; Goodrich Drug Go. v. Cassada Mlg. Co. 46 App. T>. C. .140.)</p> <p>2. The word “Orchestrola” is not registerable as a trademark as applied to phonographs, upon the opposition of a prior registrant of the word “Orehestrelle,” who had applied the word to manually and automatically operated organs, which he had widely sold and advertised, and who thereafter engaged in the manufacture and sale of phonographs.</p>

Hearing on an appeal from a decision of the Commissioner of Patents in an interference proceeding awarding priority to the senior party. The facts are stated in the opinion.

<p>Trademarks; Descriptive Words.</p> <p>Tlie words “Higb-EAicioncy” as a trademark for safety relief válves are more descriptive than suggestive, and hence are not registrable.</p>

Hearing on an appeal from a decision of the Commissioner of Patents in an interference case, awarding priority to the junior party. The facts are stated in the opinion.

<p>Note. — On effect of divorce in one state or county upon right of action for alimony in another, see notes in 59 L.R.A. ISO, and 34 L.R.A. (N.S.) 1106.</p>

IIbaring on an appeal from a judgment of the Supreme Court of the .District of Columbia, on verdict, in an action on a contract.

Hearing on an appeal from a judgment of the Police Court of the District of Columbia, convicting the defendants of the crime of unlawful assembly.

Hearing on an appeal from a judgment of the Police Court of the District of Columbia, convicting the defendants of the • crime of unlawful assembly. The facts are staled in the opinion.

<p>This appeal is governed by the decision of the Court in Hunter v. District of Columbia, ante, 406.</p>

Hearing on an appeal from a judgment of the Police Court of the District of Columbia, quashing an information. ■ The Court in the opinion stated-the facts as follows: This cause was brought here on writ of error to the police court of the District of Columbia to review the action of the magistrate in quashing an information against George D. Horning, defendant in error.

Hearing on an appeal from a decision of the Commissioner of Patents in an interference proceeding awarding priority to tlie senior party. The facts are stated in the opinion.

<p>Patents; Interference; Laches.</p> <p>•1. The decision of the court in Ron-wtrco v. Sloan, 4» App. P. O. 207, that, in analogy to the time allowed by the statute for amendments to applications (Rev. Stat. sec. 4804, Comp. Stat. 1010, see. 0408), a failure for more than one year to make a divisional application amounted to laches and barred its allowance, was not obiter dictum, although the delay in that case was thirty-six months; and this court adhered to its ruling in that case, with the modification, however, that the period should be one year unless the applicant should satisfy the Commissioner that the delay was unavoidable. (Citing J.otz v. Kenney, 31 App. IX C. 205.)</p> <p>2. While the jurisdiction of this court in an interference case is confined to a determination of the question of priority of invention, it has a right, in arriving at a conclusion upon that question, to consider and determine the question of laches on the part of one of the parties in filing a divisional application.</p> <p>3. Priority in an interference proceeding is the ultimate question for determination; hut before it can be reáched it may be, and usually is, necessary to decide one or more incidental or ancillary questions. (Citing Milton v. Kingsley, 7 App. D. 0. 531; Stevens v. Seller, 11 App. 1). C. 245; Paul v. Johnson, 23 App. D. C. 187; Wichers V. McKee, 29 App. IX C. 4; Metthes y. Burt, 24 App. D. C. 205; Yates r. JIuson, 8 App. D. C. 93; Sherwood v. Drewson, 29 App. D. C. 161; Huebel v. Bernard, 15 App. I). 0. 510; Podlesah v. Molnnemey, 26 App. IX C. 309; and Wickers v. McKee, 29 App. D. C. 4.)</p> <p>4. The dispute in an interference case is in respect to which one of the parties is entitled to an award of priority invention (following Foster v. Antisdel, 14 App. D. C. 552 and Prindle v. Brown, 24 App. D. C. 114) ; and neither party will be allowed to show that the other was not entitled to a patent for the invention, either because it was not patentable, or his right to a patent was barred by the statute of public use, or for any other reason.</p>

<p>PatuxtS; Xxtekfubexce; Dieigexce.</p> <p>While work on an independent device does not constitute diligence, it does not necessarily follow that because one applicant has completed his invention within a given time the other will be charged with a lack of diligence if he exceeded that time in perfecting his embodiment of the invention, especially where his embodiment is more complicated than that of the other party.</p>

.Hearing on an appeal from a decision of the Commissioner of Patents canceling a registered trademark. The facts arc: stated in the opinion.

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

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

<p>Patents; Jsticbfurence; Evidence; Witnesses.</p> <p>1. In an interference where there is a unanimity of decision in the Patent Office, the burden is heavily upon the appellant to establish error.</p> <p>2. In weighing evidence, the Court cannot discredit witnesses whose credibility is in no way impeached and whose testimony is reasonable and free from suspicion.</p>

<p>Patents; Interference; Appear and Error.</p> <p>In 'an interference, the question whether a prior application of one of the parties constituted an anticipation of the invention of the issue cannot be raised in this court. (Citing SMmgluff v. Sweet, '45 App. D. C. 302.)</p>

Hearing on an appeal from a decision of the Commissioner of Patents allowing certain narrow claims, but rejecting broad claims. The facts are stated in the opinion.

Hearing- on an appeal from a judgment of tlie Supreme Court of the District of Columbia dismissing a petition for a writ of mandamus to compel the Commissioner of Patents to vacate certain proceedings in the Patent Office in connection with a redeclared interference.

<p>Telephone Contract; Termination; Unla-wtul Kate.</p> <p>One who continues to accept telephone service after duo notice of the termination of his existing contract with the telephone company because the contract rates are unlawful, although declaring that he will pay only the contract rates, must pay the lawful rates for such service irrespective of the terms of the contract. (Citing Heiskell v. Chesapeake é P. Teleph. Co. 45 App. D. C. 13S.)</p>

<p>Afpkai,; Motion to Dis.urss; Agency,: Employment of Subagent.</p> <p>1. Ac appeal from a judgment of dismissal which was not taken within twenty days thereafter, as required by rule 10, cannot be sustained because of the subsequent correction of the journal entry of the judgment cm the plaintiff’s motion, in order to show that the judgment of dismissal had been entered on a motion for instructed verdict instead oí a motion to dismiss, where there was no attempt made at that time to take an appeal.</p> <p>2. An agentas promise that i£ he got a commission for the sale of a pro]) erty he would give half of it to a subagent does not entitle the lattei to recover where the agent received no commission, and it does not appear that he was entitled to one but had refused to claim it.</p> <p>3. An agent employed to sell real estate has no power to bind his principal by the employment of a subagent.</p> <p>4. An agency comprehending more than ministerial acts, which is confidential and entitles the principal to the benefit of the agent’s knowledge and advice, cannot be delegated by the agent without the prineipal’s consent. ((.Lihig Fox v. Cohen, 34 App'. D. C. 389; Bry an-v. Aberi, 3 App. D. C. USO.)</p>

IT making on an appeal from a judgment of tlie Supreme Court of the .District of Columbia in an action on a contract for advertising. The Court in the opinion stated the facts as follows: The appellant, Corporate Organization & Audit Company, as assignee of Washington ITerald Company, sned F. M. Hodges upon a contract for advertising in the Washington Herald.

IIeabtno on an appeal from a judgment of the Supreme Court on directed verdict for the defendant, in an action for damages for personal injuries.

<p>Hearing on an appeal 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 promissory note.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>Appeal from a summary judgment under the 73d rule for the plaintiff, Harry A. Grant, appellee here, in the supreme court of the District.</p> <p>Plaintiff declared upon a promissory note for $493.59 which had been signed by the defendant, S. Dana Lincoln, payable to the Standard Lime & Stone Company, and indorsed after maturity to the plaintiff. In the second count of the declaration it is alleged that this note was a renewal of a note given as the result of an accounting between the original payee and the defendant.</p> <p>The defendant pleaded the general issue and set-off. In his affidavit of defense he alleges “that the plaintiff acquired the note sued upon several months after maturity, and with knowledge that it had been dishonored at maturity.” Defendant “further avers that the note sued upon was procured by the payee, the Standard Lime & Stone Company, by fraud in its very inception, and that the consideration therefor has wholly failed in that the said payee refused to allow the said credit of $301.17 * * *, and for the further reason that when the said note was procured of the affiant by the payee, the said Standard Lime & Stone Company, wrongfully and fraudulently concealed and withheld from the affiant an accounting of sales of its crushed or broken stone made directly to persons in the District of Columbia, upon which commissions were due this affiant, hereinafter referred to, which accounting it was. in duty bound to render on the occasion of an adjustment of tlie respective accounts of the said payee aud this affiant, and which knowledge was exclusively in the possession of the said Standard Lime & Stone Company, its agents or representatives.”</p> <p>It is further alleged that there was an agreement between the Standard Lime & Stone Company and the defendant under which the defendant was to represent the company as sales agent in the District of Columbia, and that the company agreed to allow the defendant “a commission or profit of 5 cents per ton on each and every ton of crushed or broken stone sold by it to all persons in the District of Columbia, whether or not the sale was made through this affiant or made by the Standard Lime & Stone Company directly to purchasers;” that defendant duly complied with the terms of that agreement; that since the execution and delivery of the note in suit “affiant for the first time leoarned that sales of crushed or broken stone in large quantities had been made by the Standard Lime & Stone Company” to certain named purchasers, “for which no accounting or report was ever made to this affiant by the Standard Lime & Stone Company, contrary to and in violation of its agreement, on which sales there are commissions due affiant from the Standard Lime & Stone Company of $1371.85,” etc.</p> <p>American Seeding Mach. Co. v. Slocum, 108 N. Y. Supp. 1042; Armstrong v. INoble, 55 Yt. 428; Bank v. 0oídles, 180 N. Y. 34(5; Bariev v. Little, (5 Met. 10; Bissel v. Currad), 69 111. 20; Chandler v. Drew, 6 N. If. 4(59; Codington v. Bank, 40 App. I). C. 409; Collins v. Gilbert, 94 IT. S. 753; Cover v. Mgers. 75 Md. 446; Crosby v. Buchanan, 23 Wall. 420; 1 Dan. Nog'. Inst. (Stli ed. secs. 775, 815; Davis v. Miller, 14 Gratt. 1; Downing v. Gibson, 53 Towa, 517; Dresser v. Ii. R. Co. 93 IT. S. 92: Durant v. Murdock, 3 App. D. C. 114; Dobbins v. Collins, 2(5 App. D. C. 1(51; Emerson v. Burns, 114 .Mass. 348; Eversóle v. Maud, 50 .Md. 95; Fisher v. Iceland, 4 Cush. 156; Fowler x. Bran!ley, 14 Pot. 318; Gleason v. Moen, 2 Dyer, 642; Harrisburg Trust Co. v. Shufeldb, 87 Ned. 669; Hawkins v. Shoup, 2 Indv842; Hasten v. Van Senden, 43 App. I). ('. 161; Ilunlelh v. Leahy, 146 Mo. 418; Re Hill, 187 Ned. 214; Jennings v. Carlucci, 87 A". Y. Supp. 475; Kilcrease v. While, 6 Nla. 45; King x. Doane, 139 TI. S. 166; La Dm x. Firsl Kat. Bank, cited in 31 Minn. 33; Leavitt x. Peabody, 62 N. II. 185; Lytle x. Lansing, 147 U. S. 68; McKay v. Hall, 39 L.R.A. 658; McPherrin x.'Little, 44 L.R.A. 395; Murray v. Larduer, 2 AY all. 110; Rea v. Missouri, 17 AATall. 532; Renwick x. Williams, 2 Md. 356; Simpson x. Hall, 47 Conn. 417; Smith x. Sac County, 11 AATall. 139; Stewart x. Lansing, 104 TJ. S. 505 ; Stewart x. Wyoming Ranch Co. 128 U. S. 383; Story, Promissory Notes, sec. 178; Strauss x. Ilensey, 7 App. D. 0. 289; Thompson x. Sioux Falls Kat. Bank, 150 U. S. 231; Totten x. Buey, 57 Md. 446; Tyler v. Savage, 143 U. S. 79; United States v. West, 8 App. D. C. 59.</p> <p>Nirst Proposition.</p> <p>AVhether or not, according to defendant’s own affidavit, the note in suit was an account stated.</p> <p>An account rendered, and not objected to within a reasonable time, is to he regarded as admitted by the party charged to be prima facie correct, and may not be impeached save for fraud, error, or mistake. Riley v. Mattingly, 42 App. 1). C. 294; Cordon x. Frazer, 13 App. D. 0. 382; IlcPherson■ x. Harding, 40 App. I). O. 407; Talcoli v. Chew', 27 Ned. 273; Rehill x. McTugve, 314 Pa. 94, 60 Am. Rep. 341, 7 All. 224; Shipman v. Bank of Slate. 126 N. Y. 318, 12 L.R.A. 791, 22 Am. St. Rep. 821, 27 N. N. 373 ; Louisville Bkg. Co. x. ,1 slier, 112 Ky. 138, 99 Am. St. Rep. 283, 65 S. AV. 133; Wiggins v. Burkham, 10 A\Tall. 129, 39 L. ed. 319, 1 Sup. Ct. Rep. 178.</p> <p>Second Proposition.</p> <p>Are any of the facts set up in the plea of set-off such as come within the rule 1 lmt they are equities which a maker can set up against a person who is not a holder for value (</p> <p>Kirghl y.- IF. T. Walker Brick Co. 23 App. I). C. 519: Simmans v. Jaselli. 38 App. I). C. 250; National Bank v. Texas, 20 Wall. 72; Drexlerx. Smith, 30 Fed. 755; Wolf v. American Trusl <T Sav. Bank, 214 Fed. 761; McSherry v. Brooks, 46 Md. 118; Walker v. Wilson, 79 Tex. 188.</p> <p>Third Proposition.</p> <p>Can set-off be placed by a maker of note, where that note has been transferred to a third party?</p> <p>Simpson v. Hall, 47 Conn. 417; Kilcrease v. While, 6 Fla. 45; Wilkins v. Jeffries, 30 Ga. 153; Whitaker v. Kuhn. 52 Iowa, 315; Hankins v. Shoup, 2 Ind. 342; E versóle v. J/a.r'¡ceZ/, 50 Md. 95; Ham fell v. Leahy, 146 Mo. 418; Kelley v. Stead, 136 Mo. 430; Cutler v. Cutler, 77 Mo. 388; Barnes v. McMuller, 78 Mo. 260; Leavitt v. Peabody, 62 N. IL 185; Long v. Bhairn, 75 Pa. 128; Armstrong v. Noble, 55 Yt. 428; Paris v. Miller, 14 Graft. 1; Pavis v. Noble, 38 W. Ya. 66; Haley v. Cong don, 56 Yt. 65; Harrisburg Trust Co. v. Shufeldl, 87 Fed. 670.</p>

<p>Noth. -On admissibility in evidence of former plea of guilty subsequently ■withdrawn, see note in E.U.A.1916E, 040.</p>

Hearing on an appeal by the defendant from an order of tbe Supreme Court of the District of Columbia in a Chinese deportation case.

Hearing on an appeal from a decree of the Supreme Court of the District of Columbia dismissing a hill in equity.

<p>Hjcarinc on appeals by tbe defendants from a decree and an order of tbe Supreme Court of the District of Columbia. Affirmed as to one defendant, and reversed as to the other defendants.</p> <p>' The Court in ilie opinion stated the facts as follows:</p> <p>Appellee, Richmond Park Improvement Company, hereinafter, for convenience, referral to as the improvement company, filed a hill in equity in the supreme court of the District of Columbia on April 28, 1916, naming as defendants C. R. Plight; Charles A. Valentine; G. Pitts Raleigh and Charles PI. Buck, trustees; Harry E. Ivarr; Maryland Title Company, a corporation; the New Amsterdam Casualty-Company, a corporation; James E. Edmunds and S. V. Kemp, trustees. Erom a decree in favor of the improvement company, defendant llight alone appeals.</p> <p>In the second caso here involved, Bonis Conradis; AYalter G. Eisinger, surviving partner of Frank J. Eisinger, and AAhilfer G. Eisinger, trading as Eisinger Bros.; AV Stokes Hammons, trading as “the Shade Shop/5 a corporation; Artistic Lighting Shop, a corporation; the AAT. E. Thompson Company, a corporation; and Indiana Flooring Company, a corporation,— petitioned the court below to he allowed to intervene as defendants. The petition was granted, and the interveners filed an answer which, on motion of the improvement company, was stricken out by the court. Erom this order the intervening defendants, with the exception of the Artistic Lighting Shop and the Indiana Flooring Company, have appealed.</p> <p>The appeals can he consolidated and disposed of in a single opinion.</p> <p>It is averred in the bill that tlie improvement company, a corporation organized under the laws of the. State of Virginia, owned a large amount of real ('state in the District of Columbia, which it had “subdivided into blocks and lots, with streets laid off and constructed through the same for the purpose of selling said lots — -many hundred in number — for high-class residential purposes, pursuant to a general scheme for the upbuilding of the subdivision. * * In order to secure the construction of twelve desirable detached residences costing not less than $5,000 each on twelve, of the lots,” the improvement company gave to ITiglit a written contract, hv the terms of which Higlit was given the option of purchasing the lots.</p> <p>The contract, after stating certain conditions respecting the improvement of the streets, water, sewerage, etc., which are not here important, provided that “the said C. B. Night is to have the right to place on each lot or lots a building loan to be secured by a first deed of trust on said property in amount, not to exceed four fifths of the cost of the contemplated improvements. The plans and specifications of said improvements to be satisfactory to the said Nichmond Park Improvement Company, Inc., or its duly authorized representative. Said lots to be paid for by said O. B. Night at the rate of 35 cents per square foot. Payment to be made in the promissory notes of a so-called 'straw man’ to the order of said Nichmond Park Improvement Company, luc., at two years, G per cent interest from date; the said notes to be secured by second deeds of trust on said lots, subsequent only to said building loans. It is distinctly .understood that there is no personal obligation on the part of the sáid C. B. Night for the payment of said notes secured by second deeds of trust. , As the houses are completed and sold, the above-mentioned second trusts given for purchase money on the lots are to be be exchanged with said C. B. Night for whatever the cash payment amounts to over one thousand dollars ($1,000) in cash, and the balance in the alternate first, third, fifth, seventh, etc., monthly notes of the purchaser likewise secured by second deed of trust on said lots, subsequently only to said building loan. Should the cash payment he $1,000 or less, them no cash is to pass for the release of the first above-mentioned second trusts, and same to ho exchanged for equal amount of buyers’ alternate notes as described above.”</p> <p>It is averred that Night exercised the option to purchase; furnished the improvemont company with blue prints and specifications for the houses which he proposed to build; and sent it a letter, dated .November 8, 1915, in which lie stated that “the cost of the improvements as contemplated and covered by blue prints and specifications will be over five thousand dollars ($5,000) per house.”</p> <p>It is further averred that “in order that plaintiff might be assured that the proposed dwelling oil each of said lots would cost not less than $5,000, * * * plaintiff, before the delivery of its deed conveying said twelve lots, * * * did * * * demand that said defendant I light should, as a part of Ins contract with plaintiff, expressly and specifically state and agree in writing that each dwelling to be erected on each of said lots would cost not less than $5,000, and that said defendant C. B. blight * * * wrote plaintiff as follows: 'At the suggestion of your attorney, Mr. Kemp, I hog herewith to advise you that as a part of my contract with you, I will build or have built on the twmlve lots numbered GO to'80 in square 2063 twelve detached dwellings after plans and specifications already submitted and approved by you; namely, four each of the three types A, B, and C, and to cost not less than $5,000 each.7 ”</p> <p>Subsequent to this letter, which was dated November 15th, the improvement company, through its president, wrote to Night, under date of November 19, 1915, as follows: “I have your favor of the 18th instant inclosing me a copy of the specifications for the new houses at Thirty-fifth and Hodman streets. We will leave the matter of the specifications to you, as wc are very much pleased with the houses- you have already built, and we have no doubt that we will he equally pleased with those you arc now about to build. If tbe plans and specifications are satisfactory to you, and tbe bouses will cost at least $5,000 each, ‘they will be satisfactory to us.”</p> <p>The bill then recites, in substance, that the lots were deeded to Valentine, the straw man; that under the first trust blight in a circuitous manner, not hero material, through Valentine and wife and defendants Iialeigh and Buck,, as trustees, and defendant Karr, secured from defendant Maryland Title Company a loan of $4,000 on each of the twelve lots. The title company required as a condition of making the loan “that the said dwellings when completed should he free of all mechanics’ liens thereon, and demanded * * that they he- protected by the bond of a surety company conditioned upon the completion of the said dwellings free of all such lions. The said defendant Now Amsterdam Casualty Company agreed to write such a bond conditioned upon the completion of the said houses free of all such liens, provided * '* "" the whole amount of the said $48,000 [be] paid to it, the said defendant, the New Amsterdam Casualty Company, in order that it might he assured that the whole of said building loan might he available for the bills of labor and materialmen in constructing said dwellings.”</p> <p>It is also averred that at the same time Valentine and wife executed a second deed of trust to defendants Edmunds and Kemp, trustees, in the sum of $20,842.50, represented by twelve notes to secure plaintiff improvement company for the purchase price of the lots, and that “as part of the same transaction” Valentine and wife by deed “conveyed the said lots to the defendant C. .13, flight.”</p> <p>it is also averred that, when a large part, of the money had been disbursed by the casualty company, and ten of the, houses had been almost completed and the erection of the two remaining houses had been just started, plaintiff improvement company “learned for the first time that the said dwellings which were being erected were of such construction that when completed they would cost- far less than $5.000 each, and that it would have practically no security for the purchase price of the said lots. * * As soon as information of this character</p> <p>was received by plaintiff, it caused an examination and investigation to be made as to the cost of the said houses by competent persons, and plaintiff has boon advised and informed by such persons that each of said houses when completed will cost far less than $5,000; that no one of said houses when completed will cost as much as $4,000, but that they will each cost about $-‘>,550; and that it will have practically no security, if any at all, for the purchase price of the land upon which the said houses are being erected, this being the indebtedness represented by the said notes secured by the said second deed of trust. Plaintiff avers that such information is true, and that said houses completed will have cost only, to wit, $4,550. * * * That said defendant O. 1>. flight, at the time he entered into said contract * * and at the time he wrote the said letters * * aiu] ,lt a]| times since, had no intention whatever to build -on said premises houses of the value of $5,000; but that while he was making such promises and assurances to plaintiff without incurring any personal liability himself on the notes,” I light at all times intended to construct houses costing less than $4,000, and to appropriate for Ins own use the difference between the actual cost of the dwellings and the $4,000 building loan.</p> <p>Fraud is averred at length, in that Ilight entered into the contract knowing that the houses would cost much less than $4,000 each; that it was his intention to permit the first trust to.be foreclosed after he had appropriated to his own use the difference between the cost of the houses and the amount of the loan; that at the time of submitting the plans and specifications he fraudulently represented that the houses would cost $5,000 each; that lie knew at the time of submitting the plans and specifications that the houses would cost not to exceed $3,550 each; that by constructing such houses he is knowingly committing a fraud upon plaintiff improvement company; that by reason of the fraudulent representations thus made plaintiff improvement company was induced to enter into said contract and part with the title to its lots, and that Ilight had knowledge of these facts when he fraudulently procured the delivery of the deed from the improvement company.</p> <p>The improvement company prayed that the title company and the casualty company be enjoined from paying the balance, of said loan to Ilight, “and that the balance of said loan be paid into the hands of a receiver to be appointed herein, and be applied under the direction of this court in such manner as to protect the plaintiff, as far as possible, against loss from the fraudulent notes of the defendant Ilight in the premises;” that Ilight be enjoined from prosecuting the construction of the houses; that he be made to discover and give complete information as to the cost of the houses; that necessary and proper accounts be taken; that Ilight be restrained from renting the houses; “that a personal decree be entered herein against the defendant C. B. Ilight in favor of the, plaintiff for such damages as the plaintiff has or may sustain by reason of the premises,” and for such other relief as to the court may seem proper.</p> <p>Plight moved to dismiss the hill on the following grounds: Because it fails to set forth fads sufficient to constitute a cause of action; because the contract was beyond the power of the improvement company 1o make, is therefore nllm i:irps, against public policy, void, and unenforceable; because there is an adeqnato remedy at law; and because, the bill fails, to show any equities in favor of the improvement company.</p> <p>Adler r. Fenton, 65 II. S. 407; Aid’s Appeal, 129 Pa. 49; Amide v. Filis, 53 W. Va. 421; Andrus y. St. Louis Go. 130 U. S. 643; Bank y. Coqidllard, 6 Ind. 232; Bement v. National Harrow Co. 186 II. S. 70; Boston Blower Co. y. Carman Jjumber Co. 94 Ara. 94; Boonsville Nat. Bank v. Blakey, 166 Ind. 427; Brauer v. Laughlin, 235 111. 265; Bradford v. Jjong, 4 .Bibb. 225; Brent v. Gay, 149 Ky. 616; Bryan y. Cowatt, 21 Ala. 92; Buzard y. Houston, 119 II. S. 347; Capen v. Jjeach, 182 Mass. 175; Central Transp. Co. y. Bidiman Car Co. 139 II. S. 24; Clark v. Smith, 90 App. Div. 477; Clark r. Spears, 7 Black! 96; Collier v. Collier, — N. J, Eq. — 33 Atl. 193; Crowell y. Young, 4 Ind. Terr. 36; Cooper v. Armstrong, 3 G. Green, 120; Castelliv. Trahum, 77 App. Div. 472; Continental Wall Co. v. Yoigld, 212 II. S. 227; C-ooper Mfg. Co. v. Ferguson, 113 II. S. 728 — 733; Curriden v. Middleton, 232 II. S. 635; Dakin y. Union.P. It. Co. 5 Fed. 665 ; Davis v. Janway, L.B..A. 19161), 722, 155 Pae. 241; Davis v. Silverton, 47 Or. 171; Denny v. McCown, 34 Or. 47; Dodd v. Home Mut. Ins. Co. 22 Or. 3; Ellison v. Adams Exp. Co. 245 111. 415; Embrey y. Jemison, 131 II. S. 336; Carnage v. Harris, 79 Me. 531; Gallick v. Engelhardt, 36 Miss. 269; Clover v. Farr, 23 S. C. 480; Gibbs y. Gas. Go. 130 II. S. 396; Groo v. Norman & Bóbinson, 42 App. I). C. 387; Hall v. Coppell, 74 II. S. 542; Hall v. Corcoran, 307 Mass. 251; Hildebrant v. Savage, 4 AYash. 524; Johnson v. Ilulings, 103 Pa. 498; Lewis v. Yale, 4 Fla. 418; Love y. Morrill, 19 Or. 545; McDonald v. Areiü York, 58 App. Div. 73; McMullen y. Hoffman, 174 II S. 638; 'Mansfield Y. Bank of Monett, 74 Mo. App. 200; Miller v. Ammon, 145 II. S. 421; Mitchell v. McDowell, 105 1J. S. 718; Multnomah County y. Portland Cracker Co. 49 Or. 345; 0 seamy an y. Winchester Arms Go. 103 LI S. 267; Par/r v. (17 y Theatre Co. 215 N. AI 322; Park v. Minneapolis B. Co. 114 Wis. 347; Pond v. Lockwood, S Ala. 009; Printup y. Mitch all, IV Ga. 55S; Pullman Palace Car v. Central Tramp. Co. 171 U. S. 139; Reinicker v. Smith, 2 Harr. & J. 421; Robertson v. Hogshead, 3 Leigh, 067; Robinson y. Brooks, 31 Wash. 60; Root v. Railway Co. 1.05 U. S. 190; Rogers v. Durant, 106 H. S. 644; Russel’s Appeal, 1 Walker (Pa.) 131; Russell y. Clark, 7 Oranch, 69; Rosenheimer v. Standard Gaslight Co. 39 App. Div. 482; Sager x, Brown, 7 Ind. Terr. 675; Scott v. Billgerry, 40 Miss. 119; Scott v. Nealy, 140 U. S. 106; Stemmer v. Scottish Ins. Co. 33 Or. 65; Slaughter v. Gerson, 80 IT. S. 379; Slidell v. Prichard, 5 Rob. (La.) 101; Smiyihe v. Evans, 209 111. 376; Southern Development Co. v. Sylvia, 125 TJ. S. 24-7; Schroeder v. Ennis. 5 N. Y. S. R. 881; Slaughter v. Nash, 1 Litt. (Ky.) 322; Sims v. McEwen, 27 Ala. 184; Sinclair y. Filch, 3 E. D. Smith, 677; Swan Co. v. Frank, 142 H. S. 603; Teal v. Walker, 111 U. S. 242; Thomas v. Railway, 101 TT. S. 71; Thomas v. Railroad Co. 73 TJ. S. 134; Toledo, etc., R. Go. v. St. L. & Q. R: Co. 208 111. 621; Townsend v. Vtmderwerker, 9 Mackey, 197; Transportation Co. v. Pullman Go. 139 TT. S. 24; United States v. Biller Root Go. 200 H. S. 451; Union Stock Go. v. Nashville Packing Go. 140 Fed. 701; Van Raalt v. Schneck, 159 Fed. 248; Vendóme Turkish Bath Go. v. Sche.itler, 2 Wash. 457; Weyer v. Beach, 79 N. Y. 409; Woodstock Co. v. Extension, 129 U. S. 643 — 661; Zerinque v. Tex., etc., R. Co. 34 Fed. 239; D. C. Code, sec. 605.</p> <p>Anglo.-Amer. Asso. v. Campbell, 13 App. D. C. 581; Beach, Foreign Corp. see. 113; Bernent & Sons v. Harrow Go. 186 TJ. S. 70; Blodgett v. L. Zinc Co. 120 Fed. 893; Bouvier’s Law Diet. Rawle’s 3d Rev. Ultra Vires; Cent. Trans. Co. v. Pullman Car Co. 139 U. S. 24; Chicago, ele., R. Go. v. R. Go. 47 íed. 15; Gont. Wall Paper Co. v. Voight, 212 U. S. 227; Cooper Mfg. Co. v. Ferguson, 113 U. S. 728; Gowell v. Colorado Springs Co. 100 U. S. 55; Cumberland Gas Go. v. IF. Va. & M. Gas Go. 188 Fed. 585; Deringer v. Deringer, 5 Iloust. (Del.) 410: Embrey v. Jewison, 131 IJ. S. 336; Fayette Land Co. v. L. t(- X. R. Co. í)3 Va. 274; Fletcher v. Fletcher, 43 App. D. C. 180; Frills v. Fulmer, 132 IT. S. 282; Gatewood v. New River C. A- C. Co. 239 Fed. 65; Gibbs v. Gas Co. 130 IT. 8. 396; Gladman v!. Stoddarl, 4-2 App. 13. 0. 346; Godfrey v. Roessle, 5 App. D. C. 299; Gold-Min. Go. v. Nat. Bank, 96 IT. S. 640; Groo v. Norman & Robinson, 42 App. D. 0. 387; Hally. Coppell, 74 IT. S. 542; Hagerstown Mfg. Go. y. Needy, 91 Aid. 430; Hanover Nat. Bank y. Bank, 109 Fed. 421; Hickory F. 0. Co. v. Buffalo: ele., ¡I. Go. 32 Fed. 22; Flight v. Rich. Park Impror. Co. 45 App. I). C. 583; Highi v. McCoy, Orig. .Dock. No. 475, — App. 13. 0. —; Flight, cO Co. v. Rich. Park Impror. Co. Orig. Dock. No. 470, — App. D. (1 —; Ilines y. Hines, 43 App. D. O. 280; Iowa L. G. M. Co. v. U. S. F. £ G. Co. 146 Fed. 437; Jones v. Van Loren, 130 IT. S. 684; Kerfoot y. Farmers & M. Nat. Bank, 218 IT. S. 281 ; Logan (■. Nat. Bank v. Townsend, 139 U. S. 67; Lyon v. Russell, 41 App. D. C. 554; McMullen v. Hoffman, 174 IT. S. 638; Mannington y. Hocking Valley R. Co. 183 Fed. 133; Miller v. ■Ammon, 145 U. 8. 421; National Bank v. Whitney, 103 IT. 8. 99; Oregon R. & Nav. Co. v. Dumas, 181 Fed. 781; Oscanyan v. Winchester R. Arms Co. 103 IT. S. 261; Palmer Window G. Co., Re, 103 Fed. 982; Pangborn v. Westlake, 36 Iowa, 546; Printing Co. v. Sampson, L. E. 19 Eq. Cas. 462; Pullman P. Car Co. y. Central Tramp. Co. 171 IJ. S. 139; Reorganized Church, etc.., v. Church of O. 60 Eed. 937; Rozer x. May, 43 App. I). C. 103; Runyon, v. Coster, 14 Pet. 122; Story, Contr. “Public Policy;” 1 Story, Eq. ,Tiu\ (13 ed.), chap. 5, pp. 265, 309, 310; Teal v. Walker, 111 IJ. S. 242; Thomas y. Railway Co. 101 IT. S. 71; Trust & Bkg. Co. v. Willis, 6 App. D. C. 375; Union Nat. Bank v. Mallhews, 98 IT. S. 621; United States v. Freight Asso. 166 U. S. 290; Willis v. Trust & Bkg. Co. 169 U. S. 295; Woodstock Co. v. Extension Co. Í29 II. S. 643.</p> <p>Abehnan v. Booth, 21 How. 506 ; Ayres v. United Stales, 42 Ct. Cl. 385; Baker v. Baldwin. 187 IT. -S. Gl; Baldwin v. Keith; 13 Okla. 624, 75 Pae. 1124; Barden v. Bailroad Co. 154 [T. S. 288, 327; Bartlett v. Lockwood, 160 U. S. 357; Beals v. Cone, 188 U. S. 184; Bert well v. llames, 10 Okla. 469, 63 Pac. 702; Bette y. Amoneti, 4 ia. Ann. 363 ; Burke v. Po. Pac. P. C'o, 234 U. S. 669; California Po*uder Works v. Davis, 151 I:. S. 389; Carr v. Fife, 156 U. S. 494; Deffebach v. Hawke, 115 U. S. 392; Delamar’s Nevada Gold Min. Co. v. Nesbit, 177 U. S. 523; Diamond Coal & Coke Co. v. Üniled States, 233 U. S. 236; Dredge v. Forsythe, 67 U. S. 563; Ferry v. Street, 4 Utah, 521; Florida C. & P. B. Co. v. Bell, 176 TT. S. 321; Forbes v. Driscoll, 4 Dak. 336; French v. Fyan, 93 U. S. 169 — 172; Fulton y. McAffee, 16 Pet. 149; Gibson v. Choteau, 13 Wall. 92; Gordony. Caldcleugh, 3 Cranch, 268; Gwillem v. Donnalen, 115 U. S. 45; Hamblin v. Western Land Co. 147 U. S. 531; Harrington v. Wilson, 10 S. D. 606-608; Hawley y. Diver, 178 IT. S.476; Heath v. Wallace, 138 U. S. 573-585; Jameson v. James, — Cal. —, 100 Pac. 700; Johnson v. Towsley, 13 Wall. 73-83; Kerns y. Lee, 142 Fed. 995; Kerr v. Snowden, — Cal. App. —, 140 Pac. 704; King v. McAndrews, — C. C. A. —, 111 Fed. 860; Knight v. Association, 142 U. S. 161-212; Lee v. Johnson, 116 U. S. 48, 49; Logan v. Davis, 233 IT. S. 613 ; Lyle v. Patterson, — O. C. A. —, 176 Fed. 909; McClung y. Silliman, 6 Wheat. 598; Mclntire v. Foot?, 7 Cranch, 504; Marquez v. Frisbee, 101 U. S. 476; Menard v. -Ispasm, 5 Pet. 505; Michigan Land & Lumber Co. v. Bust, 168 D. S. 589, 592, 593; Minter v. Crommelin, 18 How. 87— 89; Missouri v. Andriano, 138 U. S. 496; Montgomery v. Hernandez, 12 Wheat. 129; Noble v. Bailroad Co. 147 IT. S. 174; Paine v. Foster, 9 Okla. 213, 53 Pac. 159, 9 Okla. 257, 59 Pac. 252; People v. McKelvey, 19 Colo. App. 131, 74 Pac. 533; Pierson v. Loveland, — Idaho, —, 102 Pac. 340; Qidnby v. Conion, 104 U. S. 26; Beddall v. Bryan, 24 .IIow. 420; Beaming Co. v. Kemp, 104 U. S. 636, 645 — 647; By an v. Thomas, 4 Wall. 603; Sanford y. King, 19 S. D. 334r-347; Shepley v. Cowan, 91 U. S. 330; Shoshone Min. Co. y. BvM&r, 177 U. S. 505; Sparks v. Pierce, 115 F. S. 408 ; Steele v. Smelting Go. 106 U. S. 447, 451; Steicarl y. McHenry, 159 U. S. 643; Strader v. Baldwin, 9 How. 261; United States v. 0. & C. B. Co. 186 Fed. 861; United States v. Selvurz, 102 IT. S. 378-401; VantongerenY. lleffernan, 5 Dak. 180 — 182; Waters-Pierce Oil Co. v. Texas, 212 IT. S. 97; Wes/ y. Edward .Rutledge Timber Co. 210 Fed. 189; Whitehill v. Victoria Land £ Cattle Go. — - N. AL —, 139 Pae. 184; Williams v. Xorris, 12 Wheat. 117.</p> <p>Anglo.-Ámer. Asso. v. Campbell, 13 App. D. C. 581; Bispinun, Eq. Jur. secs. 200, 201, 214, 215, 218; Bohn Mfg. Co. v. Kouniz, 30 Neb. 719; Curriden-Y. Middleton, 232 IT. S. 633; 1 Daniel, Ch. Pr. 555; Henderson v. Connelly, 123 111. 98; Hoagland v. Lowe, 39 Neb. 397; Ilight v. Rich. PL Impr. Co. 45 App. D. C. 583; Ins. Co. v. Bailey, 13 Wall. 616; Moroney’s Appeal, 24 Pa. 373; Patríele Land Co. v. Leavenworth, 42 Neb. 715; Richardson v. Belt, 13 Ajjp, I). C. 197; Rogers v. Cent. Ij. & T. Co. 49 Neb. 676; Tyler v. Moses, 13 App. I). C. 428; United Slates Fid. £ O. Co. v. United Stales £ M. Tr. Co. 234 Fed. 238; United Slates Trust Co. y. Blundon, 42 App. D. C. 500.</p>

<p>TLkaiunu on an appeal by the plaintiff from an order of the Supreme Court of the District of Columbia, dismissing an appeal from the Municipal Court of the District of Columbia.</p> <p>The facts are stated in the opinion.</p>

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia in a criminal prosecution for maintaining a bawdyhouse. The facts are stated in the opinion.

IIeaeixo on an appeal by the plaintiff from a decree of the Supreme Court of the District of Columbia dismissing a bill to enjoin the commissioners of the District of Columbia from asserting tax liens on real estate. .

<p>• Hearing on- an appeal by tbe defendant from a judgment of tlie; Supreme Court of the District of Columbia.</p> <p>The Court in flic opinion stated tbe facts as follows:</p> <p>This is an appeal from a judgment for tbe. plaintiffs, Fred Y. Murphy and Walter B. Olmsted, copartners under the firm name of Murphy & Olmsted, appellees here, in an action to recoven- tbe> sum of $2,,">00, loss credits aggregating $102.25, for preparing drawings for a proposed Lincoln Memorial in Meridian Hill park, in the' District of Columbia.</p> <p>The evidence for the plaintiffs tended to show that the work was done at the request of Mrs. Mary Foote Henderson, the defendant, under circumstances warranting the inference that she would pay for the same.</p>

<p>Warehouse Lien; Possession; .Bin. in Equity; Remedy at Law; Hf.h.evin; Concurrent Remedies.</p> <p>1. A bill by a warehouseman claiming a lion on goods cannot be maintained for an injunction against a replevin suit between other parties, since there is an adequate remedy at law by intervention in the replevin case.</p> <p>2. Xlie loss of a lien on goods by loss of possession precludes a suit to foreclose the lien until plaintiff has regained possession.</p> <p>3. The right to a bill in equity to enforce a warehouseman's lien cannot be claimed under sec. 35 of the Law of Warehouse Receipts applicable to the District of Columbia (3(i Stat. at L. 3Ü1. chap. 107; Code 1911, p. 419), which provides that the statute remedy does not preclude any other remedies, where the plaintiff did not proceed by bill in equity in the first instance but elected to proceed otherwise, and, after losing possession of the goods through a replevin suit between other parties, filad a bill to restrain that proceeding.</p>

Hearing on an appeal from an order of the Supreme Court of the 'District of Columbia denying' a motion by the plaintiff to amend his bill in equity to conform to a declaration at law. • The Court in the opinion stated the facts as follows: The District of Columbia brought action in equity against the Washington Terminal Company to have a lien declared upon certain property for taxes, and to enforce the lien.

Hearing ou an appeal from a decree of tlie Supreme Court of the District of Columbia dismissing a bill to enjoin tlie Secretary of tlie Interior from cancelation of a homestead entry. The facts are stated in the opinion. Defendants are without jurisdiction to cancel appellant’s homestead entry.

<p>Patents; Interference; Reduction to Practice; Tests.</p> <p>1. In an interference the uncorroborated testimony of the junior party of a reduction to practice of the invention of the issue is insufficient to overcome the prior filing date of his adversary. (Following Sharer v. McHenry, 19 App. D. C. 158; Petrie v. He Schvximiiz, 19 App. D. C. 386; and Flora, v. Powrie, 23 App. D. C. 195.)</p> <p>2. Successful actual reduction to practice generally requires a test under actual working conditions. (Following Sherwood v. Drewson, 29 App. D. C. 161; and ~Wich-ers v. McKee, 20 App. D. C. 4.)</p> <p>3. Where all the tribunals of the Patent Office concur upon a question of fact, this court will not disturb the finding except for palpable error. (Citing Lindmarh v. Hodyhinson, 31 App. D. C. 612; Murphy v. Meissner, 24 App. D. C. 260; Stone v. Pupin, 19 App. D. 0. 396; and Podlesah v. Molnnerney, 26 App. D. C. 399.)</p>

PIeartng on an appeal from a decision of the Commissioner of Patents refusing to reinstate an abandoned application. The facts are. stated in the opinion.

Hearing on an appeal from a decision of tbe Commissioner of Patents in an interference proceeding. Tbe Court in tbe opinion stated tbe facts as follows: This is an appeal from the decision of tbe Commissioner of Patents in an interference proceeding. Appellant William E. Ficklen, tbe senior party, filed his application August 21, 1909, on which be obtained a patent June 2, 1914. Appellee Robert 1).

<p>Patents; Interference; Prior Art; Ai’peai, and Error.</p> <p>1. In an interference involving the viglit of one of the parties to make the claims of the issue, where the question presented is complicated and highly technical, concurring decisions of the Patent Office will not be disturbed unless manifest error has been committed. (Following Lindnuork v. Rodgkinson, 31 App. D. C. 612; Murphy v. Me,issuer, 24 App. 1). G. 260; Stone v. Pupin, 19 App. I). C'. 396; and Podlesa-k v. Mclnnemey, 26 App. D. C. 399.)</p> <p>2. In an interference where the claims read on both parties, it is not error for the Patent Office to refuse to consider the prior art when interpreting the claims of the issue.</p> <p>3. In an interference, it was held that the action of the Commissioner of Patents, on the suggestion of one of the parties, in modifying his ruling so as to . conform to the holdings of ihe lower tribunals without first granting a rehearing, did not constitute reversible error.</p>

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