Volume 48 — Appeals, District of Columbia

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

Hearing on an appeal by tbe defendant from a judgment .of tbe Supreme Court of tbe District of Columbia in an action on insurance policies.

Hearing on an appeal from a decision of tbe Commissioner of Patents in an interference proceeding. The Court in tlie opinion stated tbe facts as follows:

Hearing on an appeal by the plaintiff from a decree of the Supreme Court of the District of Columbia in a suit to establish dower in an equitable estate. The Court' in the opinion stated the facts as follows; The appellant, Christine Waggaman, claims dower in a certain equitable estate of her late husband, Thomas E. Waggaman, in what is known as Woodley Park. This estate was acquired by him before their marriage, which was in 1891. .

The Court in the opinion stated the facts as follows: This cause is here on writ of error to the juvenile court of the District of Columbia to review a judgment adjudging plaintiff in error, James Hunter, hereafter, for convenience, referred to as defendant, guilty of contempt of court. James Hunter, Jr., son of defendant, was convicted in the juvenile court of disorderly conduct. Sentence.was suspended by the court, and he was placed upon probation.

Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia in an action to recover an interest in real estate. The Court in the opinion stated the facts as follows: This appeal involves the title to a piece of real estate of which Robert Earl was the owner in fee simple in 1866.

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

' Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia,' on directed verdict, in an action to recover compensation for nse of a party wall. . The Court in the opinion stated the facts as follows: Appellant, Genevieve K. Gish, brought suit in the municipal court of the District of Columbia to recover reasonable compensation for use of a party wall.

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

Hearing on an appeal by tbe plaintiff from a decree of tbe Supreme Court of the District of Columbia in a suit to determine the title to an insurance policy. The Court in the opinion stated the facts as follows: This is a suit in equity to determine the title to an insurance policy for $10,000 on the life of the appellant, Charles C. Higgins.

Hearing on an appeal by tbe defendants from a judgment of tbe Supreme Court of tbe District of Columbia in an action to recover funds embezzled by plaintiff’s employee.

Hearing on an appeal by the petitioner from a decree of the Supreme Court of the District of Columbia denying a petition by the trustee of an estate to purchase certain land. The Court in the opinion stated the facts as follows: William J. Dante, trustee, for many years past has had the control and management of the property belonging to the estate of Stilson Hutchins under a deed of trust executed by Hutchins and appellee, his wife, March 7, 1910.

Hearing on an appeal by the relator from a judgment of tbe Supreme Court of tbe District of Columbia denying a writ of mandamus to compel the Secretary of the Treasury to abrogate bis decision construing an act of Congress.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia dismissing the case. The facts are stated fm. the opinion. Barney y. Schmeider, 9 Wall. 248; Baylis v. Travellers Ins. Co. 113 U. S. 316; Bond, v. McNider, 3 Ired. (N. C.) 440; Caldwell v. Texas, 137 IT. S. 692; Capital Traction Co. v. Hof, 174 U. S. 1; Caslle v. Bullard, 23 How. 172; Coucjhran v. Bigelow, 164 IT.

Hearing on appeals by the plaintiffs from judgments of the Supreme Court of the District of Columbia, on verdipts in actions for damages for the death of plaintiffs’ intestates. The Court in the opinion stated the facts as follows: These suits were brought in the Supreme Court of the District of Columbia to recover damages for the alleged negligent killing of appellants,’ (Lula Boxley and Clara B. Masterson) intestates. The suits were consolidated and tried together.

<p>Hearing on an appeal by the plaintiff from a decree of tbe Supreme Court of tbe District of Columbia in a suit for accounting and recovery on a contract of employment.</p> <p>Tbe Court in tbe opinion stated tbe facts as follows;</p> <p>Plaintiff, John L. Newbold, filed a bill in equity in tbe su-, preme court of tbe District of Columbia against defendant corporation, Tbe Brennan Construction Company, seeking discovery, an accounting, the declaration of an equitable lien, and a decree for the amount found due from the defendant to plaintiff under a contract entered into between the parties on July 17, 1907. By the terms of the contract, briefly speaking, the plaintiff was employed by defendant corporation for the period cf ten years to devote his time and energies “to procuring contracts for the construction of residences and business buildings, including apartment houses, office buildings, hotels, warehouses, and opportunities for bidding upon same, solely and exclusively for the party of the first part (defendant corporation) ; also to the procuring of contracts and opportunities for bidding upon same, on any other structures which may be agreed upon by the board hereinafter mentioned,” which board was to be “composed of two (2) officers of the Brennan Construction Company, together with the party of the sécond part,” in consideration of which plaintiff was to be paid for his services “twenty-five per cent (25%) of all net profits which the said party of the first part shall make, earn, or realize, by, through, or from the execution of any contract, building construction, or undertaking of the class referred to in paragraph one (1) hereof, and whether the same shall have been actually procured by the party of the second part or otherwise. Payments to the party of the second part on account of such commissions shall be made as and when such net profits are realized by the party of the first part.” The contract was negotiated on behalf of the corporation by P. J. Brennan, its president, and Harold Davis, its vice president and general manager. It was executed by the company through Brennan in his official capacity, with the corporate seal attached.</p> <p>The accounting showed a balance in favor of plaintiff of $4,018.76. The court below found that the contract was entered into fairly and understandingly by the parties and carried out by plaintiff in the utmost good faith, but dismissed the bill on the sole ground that the officers of the corporation who negotiated and consummated this contract did not have authority to make it.</p> <p>The Contention that the Case is not one Cognizable in</p> <p>Equity.</p> <p>Plaintiff's bill is for discovery and accounting, for the establishment of an equitable lien, and for a decree in his favor for the amount found due on the accounting. It is hard to imagine a case more completely falling within the equitable jurisdiction. Only the defendant knew the facts, and the plaintiff was denied any accounting; and when he came into possession of a paper which indicated to him that there had been a profit on contracts comprehended by his arrangement with the defendant, he had no way of knowing whether there were any other transactions to be accounted for. Vermillion v. Phil. B. & W. R. Co. 42 App. D. C. 579, 586; Valdes v. Larrinaga, 233 U. S. 705; Barnes v. Alexander, 232 U. S. 117, 120.</p> <p>The Contention that the Contract is one of Partnership, and, therefore Ultra Vires the Corporate Powers of the Defendant.</p> <p>A contract of employment, for a loan, for the leasing of premises for business purposes, which provides for compensation to the employee, the lender, or the lessor, on the basis of a per■centage of profits made by the employer, borrower, or lessee, is not a partnership contract. Meehan v. Valentine, 145 U. S. 619.</p> <p>The Contention that the Contract is not one by which the Corporation could be bound, not being within the Scope of its Corporate Business.</p> <p>A company engaged in the general building construction business certainly has power to employ persons to promote the obtainment of contracts for that class of work. Ferguson Contracting Co. v. Coal & Coke R. Co. 33 App. D. C. 159; Sun Printing & Pub. Asso. v. Moore, 183 U. S. 642.</p> <p>The Contention that the Defendant cannot be held on the Contract because its President was not authorized to Enter into such a Contract for its Account.</p> <p>The learned trial court upheld this contention. Practically the entire management of the affairs of the defendant company was committed to and handled by Mr. P. J. Brennan, assisted by Mr. Iiarold Davis, the former being the president and the latter the vice president and general manager of the company, and both of these officials participated in the making of the contract in question. In the light of modern business methods, and the cognizance thereof progressively taken by courts of justice, the decree below was wrong. Sun Printing & Pub. Asso. v. Moore, supra; Martin v. Webb, 110 H. S. 7, Pollard v. Vinton, 105 IT. S. 7; Bussell v. Washington Sav. Bank, 23 App. D. C. 898; La Normandie Hotel Co. v. Security Trust Co. 38 App. I). C. 187; Crook v. National Trust Co. 32 App. D. C. 490; Buchiuald v. Hurst, 111 Md. 577; Patterson v. Robinson, 116 N. Y. 193; and Searchlight Horn Co. v. American Qraphophone Co. 240 Fed. 745.</p> <p>The burden of proving lack of authority, where that is a defense to a contract made by a corporation acting by such a general officer as the president, is upon the defendant, who asserts that lack of authority. Patterson v. Robinson, 116 N. Y. 193 ; McCaskill Co. v. United States, 216 H. S. 504; and Simmons v. Doran, 142 H. S. 417.</p> <p>Angel & A. Corp. § 272; Ansley Land Co. v. LI. Western Lumber Co. 152 Fed. 841; Beach v. Palisade Amusement Co. 86 N. J. L. 238; Bispham, Equity, p. 547; Calahan v. Holland-Cooke Co. 201 Fed. 607; Cathcart v. Robinson, 5 Pet. 264; Curriden v. Middleton, 37 App. D. C. 568; Dadb v. New York Central, 70 N. J. Eq. 489; Dravo v. Fabel, 132 U. S. 489; Elliott, Priv. Corp. 4th ed. § 529; Frederick v. Letleney. 214 Mass. 46; Huntington v. Saunders, 120 H. S. 78; Mallory v. Oil Works, 86 Tenn. 598; Manchester v. Stockton Works, 38 Fed. 378; Marble Co. v. Ripley, 10 Wall. 339 ; Meehan v. Valentine, 145 H. S. 619 ; 1 Morawetz, Corp. § 421; Patten v. Warner, 11 App. D. O. 149; Philip Carey Co. v. Thyson, 39 App. D. C. 233; Pierce v. First Nat. F. Ins. Co. W. L. B. p. 213; Thurston v. Bullowa, 42 App. D.-C. 18; United States v. Noe, 23 How. 312, 315; Western Nat. Banh v. Armstrong, 152 H. S. 346; Willard v. Tayloe, 8 Wall. 557.</p>

<p>Hearing on an appeal from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action for damages for personal injuries.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This appeal is from a judgment in favor of appellee, Joseph C. Catón, hereafter referred to as plaintiff, in the supreme court of the District of Columbia in a suit to recover damages for personal injuries sustained on one of the streets of the city of Washington.</p> <p>It appears that plaintiff was driving a team attached to a wagon at a rapid gait down a hill or steep grade on the street in question when one of the wheels caught in the railway tracks of defendant railway company, causing the wagon to stop with a sudden jerk, which threw plaintiff from the wagon to the street, causing the alleged injury. In constructing the railway tracks in question, there were inserted between the rails headers (designated in the declaration as “tie-rods”) used on heavy grades to prevent the surface clay and gravel from washing out from between the tracks. These headers are situated about 50 feet apart, and consist of pieces of track rail lighter in weight than the rails used in the tracks. They extend across the track at right angles to the rails, and are fastened to the tops of the ties. The ends of the header terminate about 3 or 3J^ inches from the rails, leaving sufficient space for the flanges of the ear wheels to pass between the rails and the ends of the header. The top of the header is about ^ inch below the level of the top of the rails, and is entirely beneath the surface of the street, except at the ends, where spaces are maintained for the free operation of the car wheels. It was in one of these spaces between one end of the header and the track rail that plaintiff’s wheel caught, causing the accident.</p> <p>After alleging the duty imposed upon the District to maintain its streets in safe condition, and the like duty of the railway company with respect to the construction and maintenance of its tracks, plaintiff specifically charges negligence, in that “while lawfully driving a certain wagon along, on, and over said Nichols avenue through no fault, negligence, or want of due care on his part, (he) was violently precipitated and thrown out of and from the said wagon by reason of one of the front wheels of said wagon getting, becoming, and being caught, locked, and fastened between a certain. large piece of iron, to wit, a tie-rod, and one of the rails of said track,' negligently, defectively, and improperly placed, maintained, and suffered and permitted by the said defendants, and each of them, their agents, servants, and employees, to remain for a long time, to wit, one year, between said tracks of the defendant the Washington Nailway & Electric Company, laid in said Nichols avenue, in said District, as aforesaid, which said piece of iron so negligently, defectively, and improperly placed, maintained, and suffered and permitted to remain between said tracks, as aforesaid, then and there constituted a dangerous obstruction and defect in said street, and rendered said street dangerous and unsafe.”</p> <p>Abbott v. Rwy. Co. 83 Mo. 278; Alcott v. Pub. Serv. Corp. 77 N. J. L. 110; Arick v. Fry, 8 App. D. C. 131 ■, Asphalt v. Mackey, 15 App. D. C. 410; Bannagan v. District of Columbia, 2 Mackey, 285; B. & O. R. Co. v. Miller, 37-App. D. C. 218; Bobbink v. R. Co. 75 N. J. L. 913; Bee v. Sultan Co. 47 Wash. 57; Bloomington v. Goodrich, 88 111. 558; Chapman v. Capital Traction Co. 37 App. D. C. 479; Cane v. Joliet, 103 111. App. 195; Chilty v. R. Co. 148 Mo. G4; Chicago v. Scholten, 75 111. 468; Campbell v. R. Co•. 139 Pa. 522; Dundas v. Lansing, 75 Mich. 499; District of Columbia v. Donaldson, 38 App. D. C. 259; District of Columbia v. Pierce, 44 App. D. C. 126; District of Columbia- v. Cray, 1 App. D. C. 500; Ilarbison v. District of Columbia, 9 App. D. C. 60; Haynes v. Trenton, 108 Mo. 123; Hagen v. Schleuter, 236 U. S. 467; Iletzel v. B. Co. 7 App. D. C. 524; Hoyt v. Danbury, 69 Conn. 341; Hesselback v. Si. Louis, 179 Mo. 505; Hayden v. N. Co. 76 Conn. 356; John-sons. District of Columbia, 118 IT. S. 19 ; Joyce v. B. Co. 21 N. S. 531; Smith v. St. Joseph, 42 Mo. App. 392; Kaiser v. B. Co. 131 Mich. 506; Kight v. B. Co. 21 D. C. App. 510; M’Killop v. B. Co. 53 Minn. 532; Miller v. B. Co. 186 Pa. 190; Morey v. St. Louis Co: 116 Mo. App. 12; Bedford v. Coggeshall, 19 H. I. 313; Boberts v. Tel. Co. 46 N. W. 800; Sibert v. B. Co. 188 Mo. 672; Thomp. Neg. 2d ed. sec. 1364;' Young v. Tar-mouth, 9 Gray, 386.</p> <p>Evidence of the general defective condition of the place described in the declaration is competent where the declaration charged that Nichols avenue between certain streets was defective and dangerous because of the presence of the space between the breakers and rails. District of Columbia v. Burlce, 45 W. L. K. 166. See also Campbell v. Kalamazoo, 80 Mich. 655, 660; Armstrong v. Aclcley, 71 Iowa, 80.</p> <p>Evidence of this character is admissible for the purpose of showing not only that the defendants had notice of the condition complained of, but that it was in fact a dangerous place. District of Columbia y. Armes, 107 IT. S. 519.</p> <p>It is not reversible error to allow testimony of facts admitted by the complaining party. Smith v. Seattle, 33 Wash. 481.</p> <p>This was not a public enterprise enuring to the benefit of the people generally. If the District had the power to prevent the placing of this dangerous device in the public street and failed to exercise that power, would it not be liable to anyone suffering injury therefrom? Can there be any doubt as to its power to prevent the installation of the device in question? District of Columbia v. Sullivan, 11 App, D. C. 533; Barnes v. District of Columbia, 91 U. S. 540; Finney v. District of Columbia, 47 App. D. C. 48.</p> <p>As to the liability of the railroad company, it would seem clear that they cannot excuse their negligence by implicating the District. Osgood v. Lynn B. B. Co. 130 Mass. 492; Houston B. Co. v. Bichart, — Tex. —, 27 S. W. 918; 36 Cye. 1502, and eases cited; Houston B. Co. v. Delesdernier, 84 Tex. 82; Bailroad Co. y. Dietz, 50 111. 210; Brown y. Metropolitan B. Co. 60 App. Div. 184, affirmed in 171 N. Y. 699 ; Delzell v. Ind. & C. B. Co. 32 Ind. 45; Montgomery By. Co. v. Smith, 146 Ala. 316, 328, 3 Dill. Mun. Corp. 5th ed. p. 2082; Griveaud v. St. L. B. Co. 33 Mo. App. 458.</p>

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.

Hearing on an appeal by tbe plaintiff from a judgment of tbe Supreme Court of the District of Columbia in an action by a husband to recover damages for tbe death of bis wife. Tbe facts are stated in tbe opinion.

<p>Contract; Indemnity; Scope oe; Public Policy; Ultra Vires; Evidence; Judgment Record; Termination oe Contract.</p> <p>1. A liability for injury caused by the negligence of a railway company to a person on the track who had been invited there to remove certain blocks placed by a company which had a contract right to use the tracks for the purpose of some experimental tests and demonstrations of an automatic mail exchange system is within the losses contemplated by the contract whereby an indemnity was given to the railway company for any loss which it should sustain by reason of being compelled to respond in damages for injuries to third persons which arise either directly or indirectly, or in any way arise or grow, out of the operations of the company making the experiments.</p> <p>2. It is not against public policy to indemnify a railway company against liability for injury caused by its own negligence to persons on the track by permission in the course of experimental tests of an automatic mail exchange system which were permitted by the railway company under such provision for indemnity.</p> <p>3. The presumption is that a contract of a corporation is not ultra vires in the absence of anything appearing to the contrary.</p> <p>4. Evidence included in the record of a judgment in a case which an indemnitor had been called upon to defend or settle, where he failed to do either, is admissible against him in a subsequent suit.</p> <p>5. A lease providing that it should terminate on a certain date upon the lessee’s “giving sixty days’ notice” is not terminated by its terms on the date specified if such notice was not given. (Distinguishing United States use of District of Golwnibia v. Bayly, 39 App. D. C. 105.)</p>

Hearing on an appeal from a decree of the Supreme Court of the District of Columbia in a suit to determine the title to a certain fund in the hands of a garnishee.

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

<p>Patents; Interference; Evidence; Burden of Proof.</p> <p>1. In an interference, tlie burden of proof is upon the junior party (citing Hunt v. McCaslin, 10 App. D. C. 527; and Smith v. Smith, 31 App. D. G. 518), and tlie burden is not sustained by his uncorroborated testimony (citing Malcom v. Richards, 47 App. D. 0. 582.)</p> <p>2. A disclosure of an invention to be sufficient must so describe the invention as to make its nature clear to persons competent to understand it. (Following Hastman v. Houston, 18 App. D. C. 135.)</p>

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

Hearing on an appeal from a decision of the Commissioner of Patents in an interference proceeding awarding priority of invention to the junior party. 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>

<p>Noth. — Authorities discussing the question as to what must be attached in order to satisfy requirement that “application” be attached to policy, are collated in a noto in 18 L.R.A. (N.S.) 1190.</p> <p>As to necessity of attaching application, or copy thereof, to policy, see notes in 63 L.R.Á. 867, and 23 L.R.A.(N.S.) 982.</p>

<p>Hearing on an appeal from a decree of the Supreme Court of the District of Columbia, sitting as an equity court, setting aside a settlement agreement and a release of a deed of trust on the ground of fraud, and giving judgment to plaintiff for balance due on certain promissory notes.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>Appellee, Helen M. Millegan, plaintiff below, filed a bill in equity in the supreme court of the District of Columbia praying that a certain settlement -agreement between her and defendant, Percy Metzger, and a release of a deed of trust from defendant to trustees named therein, be set aside because of the fraud of defendant, and for judgment for a balance alleged to be due plaintiff.</p> <p>It appears that defendant borrowed from plaintiff $2,950, which is evidenced by four promissory notes, two of which were secured by deeds of trust and two were unsecured. These loans were made between the years 1900 and 1905. Interest was paid on three of the notes to 1907 and 1908, but no interest was paid on the last note for $200, dated October 30, 1905. Plaintiff employed defendant as her attorney attend to some matters for her in Chicago, Illinois. Defendant made a trip to Chicago in January, 1906, remaining about ten days; but his efforts in behalf of plaintiff were fruitless, and his services were discontinued in July, 1906.</p> <p>Defendant being in default in interest and principal on all of the notes, plaintiff, on January 29, 1908, brought suit in the supreme court of the District of Columbia, to which defendant filed a plea of set-off for $3,500, claimed to be due for attorney’s fees and expenses. In January, 1909, while the suit was still pending, defendant went to the home of plaintiff, in Baltimore, Maryland, and procured from her an agreement for the dismissal of the suit, together with a release of all demands against him on account of said notes and trusts, the only consideration stated therein being defendant’s promise to release plaintiff from said claim for fees. He also procured an order directing the trustees in one of the trusts to release it, which was done.</p> <p>From a decree canceling the releases and awarding judgment for $1,719.87, with execution therefor, and appointing a receiver to sell the real property described in the decree, defendant has appealed.</p> <p>Adams v. Schiffer, 11 Colo. 15, 29; Andrews v. St. Louis Smelting Go. 130 H. S. 613; Anderson v. State, 104 Ind. 467, 492; Badger v. Badger, 2 Wall. 87; Baker v. Cummings, 169 H. S. 189, 206; Biays v. Roberts, 68 Md. 511; Brown v. Brown, 4-4 Iowa, 352; Barnes v. McMzirty, 29 Neb. 178; Calif. Sav. & Loan Society v. 'Harris, 111 Cal. 138; Campbell v. Campbell, 133 Cal. 37; Carson-Rand Co. v. Stern, 129 Mo. 381; Cobb v. Duke, 36 Miss. 60; Cook v. Moulton, 64 111. App. 430; Crutchfield v. Hewett, 2 App. D. C. 384; Dodge v. Freedmans Sav. & Trust Co. 106 TJ. S. 445, 446; Dili v. Young, 3 J. J. Marsb. 190; Ford v. Ford, 27 App. D. C. 401; Freedmans Sav. & Trust Co. v. Marl, 110 TJ. S. 710; Gresham y. Harcourt, 93 Tex. 159; Greentree y. Harcourt, 77 Kan. 154; Gray v. Suspension G. T. M. Go. 127 111. 199; Hancock y. Franklin Ins. Go. 114 Mass. 6; Ilartranft Estate, 153 Pa. 533y Higgins v. Grouse, 147 N. Y. 411; Hitz y. Jenks, 123 TJ. S. 297; How-land v. Blake, 97 TJ. S. 624; Humphrey y. Spencer, 36 W. Ya. 16; Hulbert y. Clark, 67 Hun, 560; Jackson y. Glijford, 5 App. D. C. 312; Jackson y. Sockett, 7 Wend. 102; Johnson v. She-bard, 35 Micb. 122; Levis y. Kengla, 8 App. D. 0. 239; Love y. Love, 65 Ala. 547; Lyon y. Bank, 12 Ala. 510; Market v. Plant, 1 So. 250; Marseilles y. Kenton, 17 Pa. 247; Mayse v. Gaddis, 2 App. D. 0. 20; McDaniel y. Parish, 4 App. D. C. 216; Myer y. Saul, 82 Md. 459; Mitchell y. Woodson, 37 Miss. 576; Met. Bank y. St. Louis Go. 149 H. S. 436, 448; Nat. Fertilizer Go. v. Bank, 196 Mass. 458; Omaha Bank y. Simeral, 61 Neb. 741; Patten y. Warner, 11 App. D. C. 162; Patrick v. Bank, 63 Neb. 202; Penobscot B. B. v. Mayo, 65 Me. 568; Piper v. Hoard, 107 N. Y. 71; Bicharás v. Mackall, 124 H. S. 183, 188; Bouse y. Southard, 39 Me. 404; SecuHty Inv. Go. y. Garrett, 3 App. X). 0. 76; Shickler y. Wash. Brew. Co. 33 App. D. 0. 45; Simpson v. Dalziel, 133 Cal. 499, 603; Slingerland v. Sherer, 46 Minn. 422; Sullivan v. B. B. 94 H. S. 806; Shurtleff y. Bedlon, 109 Me. 68; The Mich. Ins. Go. v. Brown, 11 Micb. 272; Tazwell’s Exr. v. Whittle’s Admr. 13 Gratt. 344; Thompson y. Cheesman, 25 Htab, 43, 52; Townsend v. VaAiderwerker, 20 App. D. 0. 209 ; Yan Hook y. Whit-lock, 7 Paige, 381; Van Ness v. Huyatt, 13 Pet. 294; Wash. L. & T. Go. y. Darling, 21 App. D. C. 140; Warner v. Jackson, 7 App. U. 0. 216; Willard v. Wo'od, 1 App. D. C. 59; Worthington v. Lee, 2 Bland, Cb. 673; Wood y. Carpenter, 101 H. S. 135, 143; Young y. Duvall, 109 TJ. S. 573, 577.</p> <p>Brown y. Buckley, 14 N. J. Eq. 458; Oondit v. Blackwell, 22 N. J. Eq. 485; Felton v. Le Breton, 92 Cal. 469; Harris 'v. Tremenheere, 15 Ves. Jr. 34; Mason v. Bing, 2 Abb. Pr. N. S. 322; Merryman v. Fnlen, 59 Md. 588; Michoud v. Girod, 4 IIow. 504; Morgan v. Minett, 6 Oh. Div. 638; Faison v. Young, 37 Iowa, 196; Prevosi v. Gratz, 16 Wheat. 482; Rogers v. Lee Mining Go. 9 Fed. 721; Rogers v. Marshall, 3 McCrary, 76; Whipler v. Barton, 63 N. II. 613; District of Columbia Code, Sec. 522; District of Columbia Code, Sec. 1617.</p>

<p>Hearing on an appeal from an order of the Supreme Court of the District of Columbia, holding a probate court, appointing a coadniinistrator to fill a vacancy caused by the death of one of two administrators of an estate.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>Under an order of the supreme court of the District of Columbia holding a probate court denying probate to the last will and testament of one Sarali Catherine Borrows, letters of administration were granted to Edmund Borrows Brig'gs, a first cousin of the deceased, and appellant, William Henry Dennis, who was not related to decedent, but who had represented her for a number of years as guardian ad liiem and as committee in lunacy for her person and estate.</p> <p>A petition was filed by certain of the heirs-at-law of the decedent, praying that the original administrators be displaced by the appointment of a trust company. While the petition was pending, the administrator Briggs died, leaving appellant Dennis as surviving administrator. On final hearing, appellee Eenning was appointed coadministrator with appellant to fill the vacancy caused by the death of Briggs. From the order appointing Denning and designating appellee Hamilton to defend a suit pending against the estate, this appeal was taken.</p> <p>“In England, by the Stat. 21 Hen. VIET. chap. 5, sec. 3, the ordinary is directed to grant administration ‘to the widow or the next of kin or to both’ at his discretion. Under that provision of the statute, it has been the uniform construction and practice of the ecclesiastical court and of the present probate court, to prefer a sole to a joint administration; and those courts have, as a general rule, refused to force a joint administration upon a party entitled to letters, against his oilier consent. 1 Wins, on Exrs. 341; Tie Browning’s Goods, 2 Swab. T. 634; Bell v. Timisivood, 2 Phill. 22; Dampier v. Colson, 2 Phill. 52; Re Goods of Newbold, L. li. 1 Prob. & Div. 285. As said by the court in the case of Bell v. Timisv'ood, just referred to, ‘the court never forces a joint administration, nfid for an obvious reason, — because it is necessary for the administrators to join in every act ; and there might be a complete contrariety of action, and it would be in the power of one of them to defeat the whole administration.’</p> <p>“In those States where statutes of a similar character to those in force in Maryland and the District of Columbia upon this subject exist, the same practice as that which prevails in England has been pursued. Coolc v. Carr, 19 Md. 1; Carpenter v. Jones, 44 Md. 625; McGooch v. McGooch, 4 Mass. 348; Gygers’s Estate, 65 Pa. 315; State v. Collier, 62 Mo. App. 38; Williams v. Williams, 24 App. D. C. 214.</p> <p>“Such a thing was never heard of as a court forcing upon a party entitled a joint administration against his consent.” Peters v. Public Administrator, 1 Bradf. 200; Newbold’s Goods, L. B. 1 Prob. & Div. 285.</p> <p>The multiplication of offices in a trust estate is not favored by the courts: “There is no such office or position known to the law as ‘attorney of an estate.’ When an attorney is employed to render services in procuring the admission of a will to probate, or in settling the estate, he acts as the attorney of the executor, and not of the estate, and for his services the executor is personally responsible. Every executor or administrator is chargeable in his account with the whole of the estate of the decedent which may come into his possession, and while in the settlement of his account he will be allowed all necessary expenses in the care, management, and settlement of the estate, including reasonable fees paid to attorneys for conducting the necessary proceedings or suits in court; still, such allowance can be made only to him, and not to the attorney; and if the attorney employed should be derelict in his duty, and should receive and misappropriate funds of the estate, the executor would be liable therefor to the legatees under the will. This being so, it would seem to be neither reasonable nor right to hold that the executor of a will must necessarily accept the services of an attorney selected by the testator. Our conclusion, therefore, is that the language employed by Mrs. Ogies' ‘I hereby select as the attorney of my estate John W. Mitchell, and direct nay executor to consult and employ him in all matters pertaining to the distribution of my estate aaad the requirements of this, my last will,’ — did not constitute a selectioaa which was binding on the executrix, but was simply an advisory provision which she could disregard if she chose to do so.” In re Ogies, 101 Cal. 381; Young v. Alexander, 16 La. 108; Foster y. Elsley, L. E. 19 Cb. Div. 518.</p> <p>The administrators considered the claim of Marie Murphy a just one, and, if properly established, one to be paid; but they frankly and fairly prayed the court for instructions and were within their rights in declining to plead the Statute of Limitations.</p> <p>"Plea of Limitations. * * It shall not be considered as the duty of an executor or administrator to avail himself of the act of limitations to bar what ho supposes to be a just claim, but the same shall be left to his honesty and discretion.” D. C. Code; sec. 341. ;</p> <p>The Code specifically sets forth the only methods by which letters of administration may be revoked, and nowhere provides for a partial revocation, such as was virtually attempted by the order of December 7, 1917.</p> <p>“It shall have full power and authority to take the proof of wills of either personal or real estate and admit the same to probate and record, and for cause to revoke the probate thereof; to grant and, for any of the causes hereinafter mentioned, to revoke letters testamentary, letters of administration, letters ad colligendum, and letters of guardianship, and to appoint a successor in the place of anyone whose letters have been revoked.” D. C. Code, sec. 119.</p> <p>Executors or administrators may be removed only upon sufficient and specified cause being shown. D. C. Code, secs. 123, 127. 263, and 296.</p> <p>“The right of administration is a valuable right, and those upon whom that right has been conferred by statute should not be deprived of it, except as the statute has provided.” Williams v. Williams, supra.</p> <p>The death of one coadministrator does not make a vacancy nor lessen the rights of the survivor.</p> <p>“At the common law, when letters of administration are granted to two or more persons, and one or more die, the survivors or survivor might exercise the power of all the original administrators.” 11 E. C. L. sec. 494.</p> <p>“On the decease of one of two executors or administrators, the trust is vested in the survivor, who then has a right to the possession and disbursement of the assets.” Beall v. Hilliary, 1 Md. 186; Wilson v. Snow, 228 U. S. 217.</p> <p>“Where the appointment of an administrator is left to the unconditional discretion of the judge, he will be controlled by this consideration in making the selection; but having made it, the appointee can be removed only upon proof of such facts as constitute a breach of the trust, in ascertaining which the judge may be aided by considering whether the conduct or acts complained of render the principal liable on his bond.” 1 Woerner, Am. Law of Administration, p. 574.</p> <p>■ The petition of Ellen E. Waters et al. praying for the re-' moval of William Henry Dennis and Edmund B. Briggs, and the appointment of a trust company as administrator d. b. n., was a renunciation of any right they or anyone claiming under or through them might have had to be appointed administrator d. b. n. Be Easton, 23 Wash. L. Eep. 789; Carpenter v. Jones, 44 Md. 625, 627; Stoclcdale v. Conway, 14 Md. 99; Cole v. Dial, 12 Tex. 100; Shropshire v. Withers, 5 J. J. Marsh. 210.</p> <p>At the common law, when letters of administration are granted to two or more persons, and one or more die, the survivors or survivor may exercise the power of all of the original administrators. Beall v. Hilliary, 1 Md. 186, 54 Am. Dec. 649.</p> <p>In the case of executors, a distinction is sometimes drawn between powers vested in coexecutors by their own names and powers conferred on them generally as executors. In the latter case the surviving coexecutors possess all of the powers of the original group of executors. Wilson v. Snow, 228 H. S. 217.</p> <p>“Such a thing was never heard of as a court forcing upon a ■party entitled a joint administration against his consent.” Peters v. Public Administrator, 1 Bradf. 207.</p> <p>“It is very evident from this that the court recognized the impropriety of attempting to create a joint administration against the protest of one of the parties thereto. The nature of tbe office forbids it. Joint administration necessarily involves joint liability, and no one can be compelled to assume such responsibility. Due regard to individual rights, as well as the interest of the estate, require that administration should not be committed to two or more persons unless they mutually agree to accept the trust. Nor does the decree in this case require joint administration. If it did, it would be manifestly wrong; but its effect is to create two separate, co-ordinate administrations on the same estate, and for that reason it is equally objectionable. Such a thing is unknown to our jurisprudence, even in theory; and in practice it would be entirely impracticable. Under the English statute, the ordinary may commit the administration to the widow and next of kin jointly, or he may grant to one exclusive administration of a particular portion of the residue; but no warrant for any such practice as that contemplated by the decree of the orphans’ court can be found in our statute.” Brubakers’ Appeal, 98 Pa. 21.</p> <p>The weight of authority clearly points to the fact that a joint administration is never forced, and is not the policy of the law; but the question in this jurisdiction has been effectively and definitely settled.</p> <p>“The court never forces a joint administration, and for an obvious reason; because it is necessary for the administrators to join in every act; and there might be a complete contrariety of action, and it would be in the power of one of them to defeat the whole administration.” Williams v. Williams, supra, and quoting Bell v. Timiswood, 2 Phill. 22.</p> <p>Carpenter v. Jones, 4-4 Md. 625; Crossan v. McCrary, 37 Iowa, 684; Cyc. 18-25; Guthrie v. Welch, 24 App. D. C. 568; Reed v. Howe, 13 Iowa, 50; Williams v. Williams, 24 App. D. C. 214; Williams v. Williams, 25 App. D. C. 32; Woerner, Am. Law of Administration, par. 171.</p>

Hearing on an appeal by tbe defendant from an order of the Supreme Court of the District of Columbia, sitting as an equity court, in a suit by a client to recover possession of certain books, etc., retained by its attorney.

<p>Hearing on an appeal from a judgment of the Supreme Court of tbe District of Columbia, denying a petition for mandamus to tbe Secretary of tbe Interior.</p> <p>Tbe Court in tbe opinion stated tbe facts as follows:</p> <p>Tbe appellants, Jennie Johnson, Mary F. Street, formerly Mary Fanny Johnson, Jennie B. Wallace, formerly Jennie Belle Johnson, et ah, claiming to be blood Indian members of the Creek tribe or nation of Indians in the State of Oklahoma, applied to the court below for a writ of mandamus directed to tbe Secretary of the Interior, and commanding him to place their names upon tbe approved rolls of tbe members of that nation, and to accord to them the status and rights belonging’ to such members. The application was denied, and they appeal.</p> <p>Cornelius v. Kessel, 128 H. S. 456; Davidson v. New Orleans, 96 IT. S. 397; Davis v. Florida Power Co. 64 Fla. 247; Delles v. Second, Nat. Bank, 75 Am. St. Rep. 875; Dreyfus v. 'Montgomery, 58 So. 731; Dental Examiners v. People, 123 111. 241; Fayerweather v. Bitch, 88 Fed. 713; Hitchcock v. Smith, 34 App. D. 0. 52; Be Hatch, 2 Jones & S. 89; Interstate Commerce Commission v. L. & N. R. Co. 227 II. S. 88; Iowa C. R. Co. v. Iowa, 160 II. S. 389; James v. Germania Iron Co. 107 Fed. 597; Knapp v. Alexander, 237 U. S. 162; Londoner v. Denver, 210 II. S. 373; Lewis v. Shaw, 57 Fed. 516; New York Indians, 174 II. S. 1; Opinions Attorney General (24 — 127); Orchard v. Alexander, 157 II. S. 381; Risdon v. Davenport, 57 N. W. 432; Sheldon v. Hayne, 261 111. 225; Simon y. Craft, 182 II. S. 427; Stark v. Starr, 6 Wall. 402; Stephens y. Cherokee Nation, 174 II. S. 446; Twining v. New Jersey, 211 II. S. 78; United Stales v. Billings, 190 Fed. 363; United States v. Detroit Lumber Co. 200 II. S. 321; United States ex ret. Garfield y. Goldsby, 211 II. S. 168; United Slates ex ret. Lowe y. Fisher, 223 II. S. 95; United States v. Wildcat (recently decided) ; Wallowa- Nat. Bank y. Riley, 54 Am. St. 795; Wright y. Gradlebaugh, 3 Nev. 310; Wynehamer v. People, 2 Park. Grim. Rep. 421; Wulzen v. Board of Supervisors, 101 Gal. 15; Zeigler v. South & North Ala. R. Co. 58 Ala. 594.</p>

<p>Mandamus; Commissioner of Patents; Costs.</p> <p>1. Mandamus will not lie to compel the Commissioner of Patents to set aside a judgment of priority of invention in an interference proceeding which is within the statutory jurisdiction of the Commissioner to hear and fully determine, and from which judgment there is adequate relief by way of appeal to this court.</p> <p>2. The Commissioner of Patents will be assessed, on his successful resistance of an appeal in a mandamus proceeding to compel him to set aside a judgment In an interference proceeding, with the costs attendant upon the making up and printing of such portions of the record as were made up of records from the Patent Office in the interference proceeding and the hearings upon the petitions to have the interference reopened, which were wholly unnecessary to a proper disposition of the appeal; since the judgment appealed from was entered upon the pleading's alone.</p>

<p>1st error to the Police Court of the District of Columbia.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>These are writs, of error to the police court, where the plaintiffs in error, William P. Ryan and Charles Lempkie, public hackmen, were separately convicted under information charging them, with stopping and loitering “while seeking employment” at a place other than that set apart as a public hack stand.</p> <p>The eviden.ee relied upon to sustain these convictions is substantially as follows: When arrested, plaintiffs in error were wearing public hack badges, and had stopped their respective automobiles close to the curb at the Willard Hotel in this city. Lempkie displayed on his car a “for hire” sign. How long each had been there does not appear.</p>

Hearing on an appeal from a. judgment of the; Supreme Court of the District of Columbia denying a petition for a writ of mandamus to compel the Secretary of the Treasury to pay over a certain fund to petitioner. The Court in the opinion stated the facts as follows: The appellant, John W. Le Crone, is the receiver of the Orinoco Company, Limited, having been appointed by a Minnesota court.

Hearing on an appeal from a decision of the Commissioner of Patents rejecting tlie claims of an application for a patent. Tlie Court in the opinion stated the facts as follows: The invention involved relates to the art of automatic telephony.

<p>Note. — Authorities discussing the question as to competency of jurors who have served in the same or similar case are collated in a note in 08 L.R.A. 871.</p>

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

Hearing on appeals from decisions of the Commissioner of Patents sustaining petitions for the cancelation of registered trademarks. The facts are stated in the opinion.

Hearing 011 appeals from a decision of the Commissioner of Patents in an interference proceeding. The Court in the opinion stated the facts as follows: These appeals by Frederick C. Main and Roy W. Sexton are from a decision of an Assistant Commissioner of Patents in an interference proceeding in which priority of invention was awarded David A. St. Clair. The invention is quite simple and embodies a filler form f-w hand embroidery.

<p>Hearing on an appeal from concurrent decisions of the Patent Office tribunals in an interference proceeding.</p> <p>The facts are stated in the opinion.</p>

Hearing on an appeal from a decision of tbe- Commissioner of Patents overruling an opposition to tbe registration of a trademark. Tbe facts are stated in tbe opinion.

<p>Patents; Interference; Lack of Diligence.</p> <p>In an interference proceeding involving a. drill bit for use in drilling wells, where it appeared that when the senior party entered the field the junior party had been inactive for some time and his renewed activity was caused by knowledge of his adversary’s successful exploitation of the device, concurrent decisions of the Patent Office awarding priority of invention to the senior party were affirmed.</p>

Hearing on an appeal from a decision of tbe Commissioner of Patents dismissing an opposition to tbe registration of a trademark.

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

Hearing on an appeal from a decision of the Commissioner of Patents dismissing an opposition to the registration of a trademark.

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

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

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

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

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

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

<p>Trademarks ; Similarity.</p> <p>A trademark consisting of tlie bust of a negro bolding a piece of watermelon under the chin, surmounted by the words “Good Enuf,” is not registrable over a prior mark consisting of the bust of a negro woman with a red bandana handkerchief around her neck, surmounted by the words “Aunt Jemima,” where both marks are used on goods of the same descriptive properties.</p>

<p>Patents; Interference; Joint Inventors; Reduction to Practice; Dieigence.</p> <p>1. In an. interference proceeding, the junior party has the burden of establishing his claims. (Following Nicoll v. Eoey, write, 245.)</p> <p>2. In an interference proceeding, the mere assertion of the junior party that his adversaries were not joint inventors because they failed to show when and where they conceived the invention is not sufficient to overcome the testimony of one of them that they were joint inventors, and of a fourth party to the effect that the invention was explained to him by both of such joint inventors. (Following Lemp v. Eamdall, 33 App. D. 0. 430.)</p> <p>3. In an interference involving the invention of a collapsible metal core composed of sections upon which a pneumatic tire may be molded, and containing two counts, both counts were construed as limited to a tapered ring, and it was accordingly held that the disclosure of one of the parties to his adversary of a structure which did not reveal such a ring was not a disclosure of the invention of the issue.</p>

Hearing on a motion to set aside an order of dismissal for failure of appellant to file brief within the time prescribed by ' an order extending tbe time for that purpose. Tbe Court in tbe opinion stated tbe facts as follows: Tbis is a motion to set aside an order of dismissal entered by tbis court because of tbe failure of tbe appellants, Simon Doyne and Samuel Naval, to file their-brief witbin tbe time prescribed by an order extending tbe time for that purpose.

Hearing on au appeal from an order of the Supreme Court of the District of Columbia, sitting as a probate court, disallowing au application by the executors named in a will for counsel fees and expenses incurred in defending the validity of the will where probate was denied.

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

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

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

Hearing on an appeal from a judgment of the Supreme Court of the District of Columbia, on verdict, in a criminal prosecution for murder. The Court in- the opinion stated the facts as follows: George Jackson, the appellant, was convicted of murder in the second degree and sentenced to tWenty-five years in the penitentiary.

<p>Public Lands; Secretary of Interior; Decision; Review by Mandamus; Another Adequate Remedy; Scandalous Matter; Striking from Records.</p> <p>1. Mandamus will not lie against tlie Secretary of tlie Interior to control him in discharging an official duty in the administration of the public lands which requires the exercise of his judgment and discretion, unless he acts outside of the law. . (Citing United States ex rel. lied River Lumber Go. v. Fisher, 39 App. D. C. 181; O’Brien v. Lane, 40 App. D. C. 493; Handel v. Lane, 45 App. D. C. 389; and United Stales ex rel. Ashley v. Roper, ante, 69.)</p> <p>2. The decision of the Secretary of the Interior that an act of Congress forbidding adverse appropriation of public land during a period within which a State had the exclusive right to select the land does not prohibit the filing by an individual of an application for entry during such period is not so clearly without basis in the law as to render such decision reviewable by writ of mandamus.</p> <p>3. The writ of mandamus can never be used as a substitute for a writ of error.</p> <p>4. A writ of mandamus to compel the Secretary of the Interior to approve the petitioner’s homestead application for public land by holding a prior application invalid will be denied, because the petitioner has another adequate remedy by a suit in equity to have the title, as soon as a patent is issued to the prior applicant, impressed with a trust in his favor. (Citing Moore v. United States, 33 App. D. C. 597; and Le Gronne v. MoAdoo, ante, 181.)</p> <p>5. A brief, upon a petition for mandamus to compel the Secretary of the Interior to approve the petitioner’s homestead application for public land, charging the Land Department with deciding cases under the pressure of a railroad’s influences, and a so-called answer, containing the same charge, to a motion to strike the brief on the ground that the charge is libelous and scandalous, will be stricken from the records, where there is no basis for the charge in the record.</p>

<p>Hearing on an appeal from an order of the Supreme Court of the District of Columbia, sitting as a probate court, dismissing a petition filed by the executors named in a will for counsel fees and costs incurred for propounding the will for probate, where probate was denied.</p> <p>Tbe Court in tbe opinion stated the facts as follows:</p> <p>This appeal is from decrees entered in the supreme court of the District of Columbia dismissing a petition tiled by appellants, Walter Stilson Hutchins and Charles L. Frailey, two of the executors named in what purported to be the last will and testament of Stilson Hutchins. In the petition they prayed for a proper and reasonable allowance to be made to them from the assets of the estate for counsel fees and costs incurred in propounding the will for probate, and in defending the will in a proceeding to have it set aside.</p> <p>A caveat filed by Lee Hutchins, a son of the testator, alleged that testator was not of sound and disposing mind, nor capable of executing a valid deed or contract at the time the paper writing was executed; that the execution thereof was procured by importunities, persuasions, misrepresentations, and undue influence practised upon testator which he was at the time too enfeebled in body and mind to resist; and that the execution of said paper writing was not the free and voluntary act of decedent.</p> <p>By order of court, the proponents were required to submit proof of the execution of the document in due form of law, which was done. The court then framed the issues for trial to a jury on the following grounds: (1) testamentary capacity; (2) undue influence; and (3) misrepresentations. By a further order of the court, Lee Hutchins, the caveator, was made plaintiff, and appellants, proponents, were made defendants. The jury returned a verdict in favor of plaintiff on the issue of testamentary capacity, and in favor of defendants on the issues of undue influence and misrepresentation.</p> <p>The court below, in dismissing appellants’ petition, decreed that “each party, caveator and caveatees, pay their own costs.” In support of the decree the trial justice, in his opinion, expressly held “that the section of the Code providing that costs might be awarded against tbe unsuccessful party indicated a legislative intention that costs might or might not be awarded against the unsuccessful party, in the discretion of the court; but that costs should not be awarded in favor of the unsuccessful party.” The court then stated that, even if it had the discretion to allow the expenses of the, caveatees, it would not do so, for the reason that “this litigation is a contest between two brothers, Lee Hutchins and Walter Hutchins; and as this case is situated I see no reason why each party should not pay his own expenses of this proceeding'.” The opinion, however, concludes with the statement that, “if it were possible for the court to allow the expenses of both sides of this litigation out of the estate, then a different question would be presented, and something might be said in favor of the view that the expenses of the caveatees and of the caveator as well ought to be allowed out of the body of the estate. But as I understand the law in this jurisdiction that could not be done. If it could be done, the question would arise whether or not that would be just to the widow and to the other heir of this estate.” The conclusion, therefore, reached by the trial justice, after theorizing as to what he would do if endowed with discretion to allow the costs, is that, under the law in this jurisdiction, no such power exists.</p> <p>(T) A person named as executor has not only the right, but it is his duty, to propound a will for probate and to defend it if attacked; • and the reasonable costs and expenses of the probate proceeding are chargeable to the estate of such decedent irrespective of the result of the will contest. Carman’s Will, — Iowa, —, 48 N. W. 985; Douglas v. Yost, 18 N. Y. Supp. 830; Dries’s Estate, Admn. No. 18,560; Olmstead’s Estate, 120 Cal. 440; Pritchard’s Estate, SO Wash. L. Rep. 9; Poulard’s Estate, 141 Mo. 642; Fillinger v. Conley, 163 Ind. 584; Glass v. Bamsey, 9 Gill. 457; Hamilton v. Shillington, 19 App. D. 0. 278; Hazard v. Engs, 14 R. I. 8; Henderson v. Simmons, 33 Ala. 299; Be Downie, 42 Wis. 66; Be Jademan, 26 Wis. 374; Kengla v. Randall, 22 Wis. 464; Lassiter v. Davis, 98 Tenn. 330; Mclntire v. Mclntire, 14 App. D. C. 350; Meeker y. Meeker, 74 Iowa, 352; Miller v. Gehr, 91 Md. 709; Perkins v. Perkins, 116 Iowa, 253; Phillips v. Phillips, 81 Ky. 328; Pingree v. Jones, 80 111. 177; 2 Redf. AVills, p. 112; 1 Schouler, AVills, §§ 1052, 1064; Shaw v. Camp, 56 111. App. 23; Tutohy v. Hanlon, 18 111. App. 228; Wills v. Sprog gins, 3 Gratt. 542;</p> <p>(2) The probate court has authority to make the allowance claimed herein, out of the assets of the estate, for costs, expenses, and counsel fees incurred in propounding and defending the paper writing purporting to be the will of decedent. Act of February 27, 1801 (2 Stat. at L. 103, 107); Act of June 21, 1870 (16 Stat. at L. 160, 161); Mclntire’s Estate, 5 Mackey, 299; Groff v. Miller, 20 App. D. O. 459; Iglehari v. Iglehari, 204 TI. S. 476, 484, 485; Maryland Act of 1798, chap. 101; I). C. Code, secs. 61, 62, 66, 68, 114, 116, 129, 143; United States v. Sampson, 19 App. D. C. 435;</p> <p>(3) Appellants are entitled to a reasonable allowance out of the assets of the estate of decedent for expenses and counsel fees incurred in connection with propounding the will and in defending it when attacked. Hamilton v. Shillington, supra; Tuohy y. Hanlon, supra.</p> <p>Allen v. Seaward, 86 Iowa, 718; Bowden v. Higgs, 9 Lea, 343; Compton v. Barnes, 4 Gill, 55; Cornwell y. Cornwell, 11 Humph. 484; Douglas v. Yost, 18 N. T. Supp. 830; Olmstead’s Estate, 120 Cal. 447; Soulard’s Estate, 141 Mo. 642; Fillinger r. Conley, 163 Ind. 584; Glass y. Ramsay, 9 Gill, 456; Gorton y. Perkins, 63 Aid. 589; Hamilton v. Shillington, 19 App. D. C. 268; Harrison v. Clark, 95 Aid. 308; Hazard v. Engs, 14 R. I. 5; Henderson v. Simmons, 33 Ala. 291; Re Downie, 42 AATs. 66; Re Carman, 48 N. AV. 985; Re Jack-man, 26 AVis. 364; Johns v. Hodges, 60 Md. 215; Kengla v. Randall, 22 App. H. 0. 463; Lassiter v. Travis, 98 Tenn. 330; Mclntire v. Mclntire, 14 App. I). C. 337; Meeker v. Meeker, 74 Iowa, 353 ; Miller v. Oehr, 91 Md. 709 ; Perkins v. Perkins, 116 Iowa, 352; Phillips v. Phillips, 81 Ky. 328; Pingree v. Jones, 80 111. 177; Shaw v. damp, 56 111. App. 23; Sirm-ott v. Kenaday, 14 App. D. C. 1; Townshend v. Brooke, 9 Gill, 20; Tuohy v. Hanlon, 18 App. D. O. 225; Wills v. Spraggins, 3 Gratt. 555.</p>

Hearing on an appeal from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover damages from a street railway for negligence. The Court in the opinion stated the facts as follows: This is an action to recover damages from the Auacostia & Potomac Railway Company for alleged negligence in the operation of one of its street cars. There was a verdict for the defendant.

Hearing on an appeal from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action of tort. The Court in the opinion stated the facts as follows: Appellant, Garnet McMahon, plaintiff below, brought suit against the appellee, Charles E. Matthew^ defendant below, to recover for injuries sustained by her in an accident which she claimed resulted from the negligence of the defendant. There ivas a verdict and judgment against her.

<p>Hearing on an appeal from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action on ■a sealed contract of separation between a husband and wife.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>Appellee, Eva C. Santmyer, hereafter referred to as plaintiff, sued defendant Edward L. Santmyer, on a sealed contract of separation entered into between the parties, husband and wife, on March 15, 1912. The contract, after reciting that the “parties are husband and wife, between whom irreconcilable difficulties have arisen,” in the third paragraph provides: “The party of the first part also shall pay to the party of the second part, for her further support and maintenance and for the support and maintenance of their minor child, the sum of twenty-five dollars ($25) per month, upon the first day of each and every month hereafter, while their said child is in regular attendance at school, and that from and after that time, the said party of the first part, instead of said sum of twenty-five dollars ($25), shall pay to the party of the second part the sum of fifteen dollars ($15) per month, for her further support and maintenance, payable as aforesaid, so long as both said parties of the first and second parts shall live. The first of said monthly payments to be made on the 1st day of April, 1912, and a proportionate amount for the current month of March to be paid forthwith. It is understood that the absence of said child from school on account of illness shall not excuse the party of the first part from making a full payment of twenty-five dollars ($25).”</p> <p>This suit was brought to recover the $15 per month for the months of August, September, and October, 1915. From a verdict and judgment in favor of plaintiff, defendant appeals.</p> <p>Audubon v. Shufeldt, 181 U. S. 577; Bailey v. Bailey, 127 N. 0. 474; Barrett v. Falley, 311 IT. S. 524; Bateman v. Ross, 1 Dow. 235; Behrley v. Behrley, 93 Ind. 255; Benyon v. Ben-yon, 24 Week. Pep. —; Bronson v. Brady, 28 App. D. 0. 250 ; Bulloch v. Bullock, 27 L. T. N. S. 247; Carr v. Carr, 22 Gratt. 168; Chapman v. Parsons, 66 W. Ya. 307; Clark v. Fosdick, 118 N. Y. 7; Charlesworth v. Holt, 43 L. J. Exch. N. S. 25; Demonet v. Burkart, 23 App. D. C. 323 ; Drummond, Re, 12 L. T. N. S. 172; Fletcher v. Fletcher, 2 Oox, 105; Grant v. Build, 30 L. T. N. S. 319; Harris v. Harris, 31 Gratt. 13; Jlitner’s Appeal, 54 Pa. 110; Howell v. Howell, 104 Cal. 45; Julier v. Julier, 62 Ohio St. 90; Kamp v. Kamp, 59 N. Y. 212; Kehr v. Smith, 20 Wall. 31; Krernelberg v. Krernelberg, 52 Ind. 553; McCarthy v. McCarthy, 20 App. 195; McCormick v. Hammer A ey, 1 App. 313; Mauds!ay v. Maudslay, L. K. 2 Proh. Div. 256; Muck enb erg v. 71 oiler, 29 Ind. 139; O'Connell v. Noonan, 1 App. D. C. 332; Feltit v. Pettit, 107 N. Y. 667; Roseberry v. Roseberry, 27 W. Ya. 760; Smith v. Gilmore, 7 App. D. O. 192; Sprague v. Sprague, 73 Minn. 474; St. John v. Si. John, 11 Yes. Jr. 536; Thompson v. Thompson, 218 IT. S. 611; Thompson v. Thompson, 31 App. D. 0. 551; Thompson v. Thompson, 226 TJ. S. 566; Thompson v. Thompson, 35 App. D. 0. 25; Thompson v. Howard, 31 Midi. 309; Yos v. Robb, 155 U. S. 13; Wailingsford v. Allen, 10 Pet. 583; Westmeath v. Salisbury, 5 Bligh. N. R. 339; Williams v. Baüy, L. P. 2 Eq. 731; Wood v. Wood, 59 Arle. 441; 1 Bl. Oom. p. 442; Clancy, H. & W. 414; 1 Chitty, Contr. 251; D. C. Code, secs. 1152-1155; Skelford, Mar. & Div. 629; Stewart, Mar. & Div. 191; 2 Story, Eq. Jnr. 1428.</p>

<p>Resulting Trust; Realty; Payment op Purchase Price by Another.</p> <p>1. Upon the purchase by one who is entitled, with his sister, under their father’s will, to the remainder after the termination of his mother’s life estate in all her deceased husband’s property, of real property with money furnished partly by him, partly by his mother, and partly by his father’s estate, and the conveyance of such property to him in fee, a resulting trust arises in favor of his mother and sister.</p> <p>2. A voluntary and absolute conveyance of real property by a son to his mother releases and extinguishes his vested remainderman’s interest in one half of the purchase money under his father’s will, and his right to reimbursement for money advanced by him toward the purchase price, where he makes no reservation of such interest and right, since no resulting trust arises in his favor as grantor in the deed.</p>

Hearing on an appeal by the defendant from a judgment of tlie Supreme Court of the District of Columbia, on verdict, in an action of trespass on the case in the nature of a common-law conspiracy.

Hearing on an appeal from a judgment of the Supreme Court of the District of Columbia, on verdict, in a criminal prosecution for murder. The facts are stated in the opinion.

<p>Variance; Waiver; Contributory Negligence; Question for Jury.</p> <p>1. One injured by collision with a street car can only recover on proof of the operation of the ear at a reekless speed, where that is the only negligence alleged in his declaration.</p> <p>2. An objection by the defendant, upon the ground of variance, to the admission of evidence by plaintiff on the issue of last clear chance under a declaration limiting defendant’s negligence to excessjye or reckless speed in the operation of its street car which struck plaintiff, is waived by its introduction of similar evidence, and its motion for a directed verdict upon the whole evidence, and its election, upon the denial thereof, to go to the jury upon its case as made.</p> <p>3. One driving upon street car tracks in front of an approaching car cannot be held to be guilty of contributory negligence as matter of law', where there is evidence to the effect that the ear W'as from 150 to 250 feet from the crossing and running at the rate of 30 ’ miles an hour, and that at such speed it could have been stopped in a distance of from 86 to 250 feet.</p>

<p>Hearing on an appeal from a decree in the Supreme Court of the District of Columbia, sitting as an equity court, in a suit to recover dues paid a voluntary relief department of defendant railroad companies.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>Appellee, Arthur Campbell, plaintiff below, brought suit in equity to recover from defendants, Philadelphia, Baltimore, & Washington Railroad Company, and Pennsylvania Railroad Company, a balance claimed to be due him from dues paid the Pennsylvania Railroad Voluntary Relief Department.</p> <p>It appears that a number of roads embraced in the Pennsylvania system, including defendants, formed, for the benefit of their employees, the voluntary relief department. Plaintiff was employed in 1891 by the Philadelphia, Wilmington, & Baltimore Railroad Company, and continued in the employ of that company and its successor, defendant Philadelphia, Baltimore, & Washington Railroad Company, until his discharge from the service November 23, 1913, except for a short period in 1900, and again in 1910, when he was in the employ of defendant Pennsylvania Railroad Company. He was admitted to membership in the relief department in 1900, after submitting his signed application, in which he agreed to be bound by the rules and regulations of the department. During the' time he was a member, and up to the date of his discharge, he contribute! to the relief fund $439.90, and during the same period he received in accident and sick benefits from the relief fund the sum of $83.60.</p> <p>This appeal is from a decree awarding judgment against the several defendants for the difference between the amount paid into the relief fund and the amount received by way of benefits, — $356.30,—together with interest and costs.</p>

Hearing on an appeal from a decree in tbe Supreme Court of the District of Columbia, sitting as an equity court, dismissing a bill for injunction to restrain the enforcement of a judgment at law. The facts are stated in the opinion.

Hearing on an appeal by the defendant from an order of the Supreme Court of the District of Columbia, sitting as an equity court, refusing permission to amend an answer and cross bill, and dismissing the answer and cross bill. The facts are stated in the opinion.

<p>Appeal; Moot Question.</p> <p>The question raised by an appeal from the judgment entered on a supersedeas bond, after the denial of a motion to stay the enforcement of the judgment in the original case pending appeal in a suit to enjoin the latter judgment, becomes a moot question upon the final disposition of the injunction suit, and the judgment on the bond will be affirmed.</p>

Hearing on an appeal by tbe plaintiff from a judgment of tbe Supreme Court of the District of Columbia, on verdict, in an action of negligence against a street railway. Tbe Court in tbe opinion stated the facts as follows: Rebecca Rappaport sued tbe Capital Traction Company because, as alleged, sbe sustained injuries through tbe company’s negligence in tbe operation of one of its street cars. Tbe jury found against ber, and sbe appeals, assigning four errors.

Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia, sitting as an equity court, denying the prayer of a cross bill and granting the plaintiff a divorce a mensa, et thoro. The facts are stated in the opinion.

<p>Variance; Requested Instructions Covered by Charge; Damages; Depreciation op Dollar.</p> <p>1. Proof that plaintiff’s abdominal contents were generally disarranged, the right kidney loose and out of place, the stomach below its proper position, and the intestines sagged, resulting from a neurasthenic condition and low vitality caused by the accident, is properly admitted, in an action for personal injuries, under a declaration that her abdomen was shocked, bruised, strained, wounded, and injured. '</p> <p>2. A requested instruction is properly refused, where it is covered by the charge to the jury.</p> <p>3. The jury, in estimating the damages for personal injuries, may take into consideration the fact that the value of a dollar has greatly depreciated since the accident.</p>

<p>Patents; Interference; Abandonment; Joint Inventors; Assignee.</p> <p>■ 1. Abandonment of the right to a patent must be affirmatively proved (following Oliver v. Felbel, 20 -App. D. C. 255; Lederer v. Walker, 39 App. D. C. 122; Hubbard v. Berg, 40 App. D. C. 577), but long delay, unexplained, may satisfy the rule (Following Re Mower, 15 App. D. C. 144.)</p> <p>2. In an interference involving a warp-tying machine, where the evidence showed that the junior party conceived the invention in 1900, and reduced it to practice in 1901 by the construction of a machine embodying the invention of the issue, which machine he kept in the factory with which he was connected, and which he exhibited from time to time, but which was not used commercially because one of its parts needed development in order that the machine might be used for handling fine as well as coarse yarns, it was held that his delay in filing an application until 1906 did not show concealment or abandonment. (Distinguishing Mason v. Eephurn, 13 App. D. O. 86, and lie Mower, supra.)</p> <p>3. In an interference involving a warp-uniting machine, where two joint inventors conceived the invention of the issue and disclosed it to a third inventor, who was working for and in behalf of the same common assignee on a warp-tying machine, a related invention, and such third inventor built a. machine in which he embodied the generic ideas of the joint inventors, it was held that such work inured to the benefit of the joint inventors, and that their invention was reduced to practice at the same time that his was.</p>

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

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

The Court in the opinion stated the facts as follows: This case is here in error to the police court of the District of Columbia. Plaintiff in error, George D. Horning, defendant below, was convicted of the crime of doing business as a pawnbroker in violation of the Act of Congress of February 4, 1918 (37 Stat. at L. 657, chap. 26). This is the second time this case has been before us.

<p>Hearing on an appeal by tbe defendants from a decree in tbe Supreme Court of tbe District of Columbia, sitting as an equity court, in an infringement suit.</p> <p>The Court in the opinion stated the facts as follows:</p> <p>This is an appeal from a decree in the supreme court of the District sustaining the validity of claims 7 and 10 of appellee’s, Thomas G. Mouat, patent (No. 937,686, granted October 19, 1909), holding these claims to be infringed by appellants, Hutchison. Vapor Heating Corporation and George H. Zellers, Trading as Zellers & Company, and ordering an injunction and accounting.</p> <p>The patent embraces a pressure-regulating device capable of maintaining substantially constant pressure and temperature of the heating fluid used in a low-pressure heating system. In the ordinary heating system, which constitutes the prior art in this case, the pressure varies from 5 to 10 pounds and runs as high as 20 or 25 pounds. This is called the high-pressure system. About the time Mouat, the appellee, entered the field, the low-pressure or vapor-heating system came into use. In this system, while the water is evaporated and conveyed in the form of steam to the radiators, it is carried at a pressure of only 2 to 7 or 8 ounces, instead of from 5 to 25 pounds, as in the high-pressure system. In the high-pressure system, the control of the fuel supply very easily may be effected by the ordinary pressure regulator, such as a diaphragm valve, in which the movable part of the diaphragm is raised or lowered as the pressure of the steam rises or falls. There is sufficient fluctuation in this system to insure the success of such a regu-' lator. For example, if a normal pressure of 5 pounds is to be carried in the system, a variation of 20 per cent or 1 pound, either above or below the normal, will operate the diaphragm. It is obvious, however, that in a vapor-lieating system, where the pressure varies from 2 ounces to not more than 7 or 8 ounces and the fluctuations are correspondingly small, the high-pressure regulator would be inoperative. Mouat’s device was intended to solve that problem by supplying a sensitive apparatus in which the level of the water in the boiler could be disregarded. The following diagram shows the essential features of the Mouat apparatus:</p> <p> </p> <p>“7. The combination with a boiler and means for heating the same, of means for maintaining substantially constant the pressure of steam generated thereby, said means comprising a receptacle, a pipe connecting said receptacle with the water space in the boiler, and extending above the bottom of said receptacle, a pipe connecting the upper portion of said recepfade with the steam space of the boiler and arranged to drain toward said receptacle, a movable supported receptacle communicating with the former receptacle, and connections between said receptacle and the means for heating said boiler.”</p> <p>“10. The combination, with a boiler and means for heating the same, of means for maintaining substantially constant the pressure of steam generated by said boiler, said means comprising a receptacle extending above the water line of the boiler, a pipe connecting said receptacle with the boiler and extending above the bottom of said receptacle, a pipe connecting said receptacle with the steam space of the boiler and arranged to drain toward said receptacle, a movably supported receptacle communicating with the former receptacle and arranged to drain into the former receptacle, and connections between the latter receptacle and the means for heating the boiler.”</p> <p>It will be noted that these are combination claims and the (dements of the combination easily may be identified in the diagram. Thus, “1” is the steam boiler, “6” the receptacle, “9” the pipe connecting said receptacle with the water space in the boiler and extending above the bottom of said receptacle. .Pipe “11” connects the upper portion of the receptacle “6” with the steam space of the boiler. “21” is the “movably supported receptacle .communicating with the former receptacle,” or “6.” It is essential to have a normal or fixed water level in receptacle “6,” regardless of the water level in the boiler. This is accomplished by having pipe “9” enter receptacle “6” above the bottom of that receptacle and also above the normal water level in the boiler, the result being that when the water in receptacle “6” reaches the level of pipe “9” it falls out by gravity into the boiler. Any variation in the water level of the boiler cannot affect the level in receptacle “6,” because there is the same pressure on the surface of the water in that receptacle, exerted through pipe “11,” as there is on the surface of the water in the boiler. Therefore, when steam has been generated in the boiler, whatever pressure is exerted must be communicated to receptacle “G,” in the manner described, and that pressure will force an amount of water through pipe “34” into movable receptacle “21” and thereby regulate the draft appliance or damper “2.”</p> <p>Steam necessarily is condensing in pipe “11,” and the water of condensation is forced or dropped into receptacle “6,” so that a constant level is maintained in that receptacle.</p> <p>Appellants’ apparatus -is illustrated by the following diagram :</p> <p> </p> <p>It readily will be seen that there is very little difference between the two devices. The top portion of appellants’ pipe “11” is horizontal, and it is contended that the pipe drains largely through receptacle “(3” and into pipe “9.” In appellants’ device the water of condensation from the radiators passes through receptacle “6.”</p>

<p>Note. — On liability of municipal corporation for injury from opening maintained sidewalk by abutting owner for occupant, see notes in 61 L.R.A. 593; 7 L.R.A.(N.S.) 424; 19 L.R.A.(N.S.) 507; 20 L.R.A. (N.S.) 513; and 43 L.R.A. (N.S.) 1116.</p>

Hearing on an appeal by tbe defendants from a decree in the Supreme Court of the District of Columbia, sitting as an equity court, in.a suit to enjon the erection of a store building.

Hjeartng on an appeal bv tlie defendant from a judgment of the Supreme Court of the District of Columbia, in an action of negligence. The Court in the opinion stated the facts as follows: Appellee, Curtis Clagett, plaintiff below, brought this action to recover damages for injuries received through the breaking of a seat in appellant’s (Tom Moore), moving picture theater. From a verdict and judgment in favor of plaintiff, defendant appeals.

<p>Variance; Landlord and Tenant; Notice to Quit; Waiver.</p> <p>1. The variance, in an action by a landlord for possession of the leased premises, between an averment in the declaration that the tenant held under a monthly tenancy and proof that he was a tenant by sufferance, is immaterial, where the notice to quit given would be sufficient in either case.</p> <p>2. The acceptance by the landlord of the tender by the tenant of the rent in arrears on the date of the hearing of an action for possession of the leased premises does not affect the landlord’s right to judgment for possession. (Citing Byrne v. Morrison, 25 App. D. C. 72.)</p> <p>3. The receipt of rent by a landlord, after notice to quit, amounts to a waiver of his right to demand possession under the notice. (Citing Byrne v. Morrison, supra.)</p>

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

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

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

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

<p>Patents; Intebeebence; Reissue; Claims.</p> <p>1. In a reissue application, an attempt to enlarge the scope of the application so as to appropriate an intervening invention will not be permitted. (Following Manly v. Williams, 37 App. B. C. 194.)</p> <p>2. In an interference proceeding, the claims will, if possible, be given an interpretation consistent with the specification in which they originated.</p> <p>3. In an interference involving an improved process of preparing desiccated milk powder, between a patentee, who was the junior party, and a prior applicant, who applied for a reissue and copied the claims in issue, which claims provided for separating the desiccated milk from the air and water vapor before condensation of the water vapor carried by the air occurs, it was held, upon a review of the record, that the senior party had no right to make the claims of the issue, in that his original specification failed to disclose a heated desiccating chamber wall to prevent condensation of the water vapor carried by tbe air, or that be appreciated that any advantage would result from such a construction.</p>

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

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

Hearing on an appeal by the defendant from a decree in the Supreme Court of the District of Columbia, sitting as an equity court, in a suit for divorce.

Hearing- on an appeal from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action for false imprisonment. Tbe Court in tbe opinion stated tbe facts as follows: Appeals from a verdict and judgment for the plaintiff, Jackson G. Parry, an infant, by bis next friend, Richard L. Parry, appellee here, in tbe sum of $3,000. A former judgment was reversed. Gwrroll v. Parry, 43 App. D. C. 363, Ann. Oas. 1916E, 971.

Hearing on an appeal from a judgment of tbe Supreme Court of tbe District of Columbia, on verdict, in a criminal prosecution for having obtained money by false pretenses. Tbe Court in tbe opinion stated tbe facts as follows: Appellant George S. Engle appeals from a conviction in tbe supreme court of tbe District of Columbia upon an indictment cbarging bim witli having obtained money by false pretenses from tbe complaining witnesses, John A. Nicol and Mary B. Nicol.

<p>Hearing on an appeal "from a judgment of the Supreme Court of the District of Columbia, on verdict, in. an action of debt on a written order.</p> <p>Tbe Court in tbe opinion stated tbe facts as follows:</p> <p>Appellant Walter G. Eisinger, defendant below, appealed from tbe judgment rendered against him upon the following order:</p> <p>Washington, D. C., Feb. 17, 1915.</p> <p>Mr. W. G. Eisinger, Agent for Harry Lambros and Louis Kanelopoulos:</p> <p>Kindly pay to the order of E. J. Murphy Company tbe sum of Four Hundred and Seventeen Dollars ($417), covering glass and glazing at No. 600 N. Capitol street and No. 3 “E” street N. W.</p> <p>James E. Blakeney.</p> <p>Accepted:</p> <p>W. G. Eisinger.</p> <p>Tbe president of tbe E. J. Murphy Company, appellee, testified that it had furnished tbe labor and material called for in tbe order; that it was the owner and bolder of tbe order, and that it had not been paid. Defendant admitted signing tbe acceptance. On this evidence, both parties moved for a directed verdict. Tbe court sustained plaintiff’s motion, and tbe verdict and judgment followed.</p> <p>Bank of N. A. v. Hooper, 66 Ana. Dee. 390; Daniel v. Olidden, 38 Wash. 76; De Forest v. United States, 11 App. D. C. 458; Evans v. Shoemaker, 2 App. D: 0. 62; Exchange Nat. Bank y. Tlvird Nat. Bank, 112 U. S. 276; Frankland v. Johnson, 147 111. 520; G-reenl. Ev.; Hypes v. Griffin; 89 111. 134; Koenigsberger v. Mining Go. 158 IT. S. 41; Lallerstedt y. Griffin, 29 Qa. 708; Meaehem, Law of Agency; Nupen y. Pearce, 235 Eed. 497; New York Electric B. Go. y. Fifth Nat. Bank, 135 IT. S. 432; Poiuers y. Briggs, 79 111. 493; Bandon v. Toby, 11 How. 493; Bobinson v. Kanawha Valley Bank, 58 Am. Rep. 829; 3 R. C. L. Bills & Notes; Scanlan y. Keith, 102 111. 634; Shaw y. Stone, 1 Cush. 228; Styles & C. Agency; Smith y. Morse, 9 Wall. 76; Thompson y. McKay, 41 Cal. 221; Turner y. Trail, 24 Okla. 129 ; Tuttle y. Bank, 187 Mass. 533 ; Wege v. Safe Cabinet Go. 249 Eed. 696; Beuttell y. Magone, 157 H. S. 154; Colo. v. Harrison, 228 Fed. 894; Illinois G. B. Go. y. Egan, 203 Eed. 939 ; Bunkle y. Burnham, 153 H. S. 216 ; Sena y. American Turguoise Co. 220 U. S. 497; Union P. B. Go. y. Harris, 63 Fed. 800; Western U. Teleg. Go. y. Thompson, 144 Fed. 583.</p>

Hearing on an appeal from a decree in the Supreme Court of the District of Columbia, dismissing a bill for discovery, accounting, and general relief. The Court in the opinion stated the facts as follows t This appeal is from, a decree in the supreme court of the District dismissing appellant’s (Edwin E. Overholt) hill for discovery, accounting, and general relief. The original hill was filed on April 30, 1906. Process was served on William B. Matthews, since deceased.

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 judgment of the Supreme Court of the District of Columbia, on verdict declaring invalid a last will and testament and denying probate thereof. The Court in the opinion stated the facts as follows: This appeal is from a verdict and judgment declaring invalid the last will and testament of Stilson Hutchins, and denying probate thereof. The will was executed October 26, 1910.

<p>Note. — For authorities passing on the question of necessity of making the false pretenses to the defrauded party or of intending to defraud a particular person, see note in L.R.A.1916D, 270</p>

Hearing on an appeal from a judgment of the Supreme Court of the District of Columbia directing the issue of a writ of mandamus commanding the issue and delivery of a patent to certain public lands.

XIicARTNot on an appeal from a judgment of the Supreme Court of the District of Columbia, sustaining a motion for judgment under the 73d rule. The facts are stated in the opinion.

Hearing on an appeal from a decree in the Supreme Court of the District of Columbia, sustaining exceptions to a special master’s report.

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

<p>Patents; Double Patenting.</p> <p>A decision of the Commissioner of Patents rejecting the claims of an application for a patent for a composition for furnace lining was affirmed in view of a prior patent issued to applicant.</p>

<p>Hearing on an appeal from the Commissioner of Patents holding an application abandoned.</p> <p>The facts are stated in the opinion.</p>

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

<p>Trademarks ; Registration.</p> <p>Á design applied to the surface of roofing material, and formed by horizontal and vertical lines embossed or indented into the material in such manner as to leave the entire surface corrugated in squares, is a mere structural feature of the goods, and is not registerable as a trademark. (Following Berg v. Loewenstein, 40 App. D. C. 277-)</p>

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

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

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

<p>Trademarks ; Opposition.</p> <p>The word “Agates” as a trademark for a liquid concrete hardening material was held not to be registerable, in view of the prior registration of the words “Agate” and “Agatene” as trademarks for varnishes, where it appeared that the goods of the applicant and the opposer could be put to the same use.</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 sustaining an opposition to the registration of a trademark. The facts are stated in the opinion.

Hearing on an appeal from a judgment of the Supreme Court of the District of Columbia sustaining a demurrer to a declaration in an action of deceit. The facts are stated in the opinion. The first count in the declaration sets out all the essential elements in an action for deceit. Browning v. Bank, 13 App. D. 0. 14; Magruder v. Montgomery, 33 App. D. C. 133; Tyssowski v. F. H. Smith & Go. 35 App. D. C. 403; Cooper v. Schlesinger, 111 IT.

<p>Hearing on an appeal from a decree in the Supreme Court of the District of Columbia, sitting as an equity court, dis~ missing a bill to establish an equitable lien.</p> <p>The facts are stated in the opinion.</p> <p>Moon y. Brown, 172 Mo. App. 516, 158 S. W. 79; Chapman v. Richey, 188 111. App. 551; Emaclc y. Rusheriberger, 8 App. D. C. 249; Anglo-American Sav. & L. Asso. v. Gampbell, 13 App. D. C. 581, 43 L.R.A. 622; and France V. Coleman, 29 App. D. C. 286.</p> <p>D. 0. Code, sec. 1257; Richardson v. Belt, 13 App. D. C. •197; Falmouth Nat. Bank y. Gape God Ship Oanal Go. 166 Mass. 550; Green v. McDonald, 75 Vt. 93; Hanks v. Rhoads, 128 111. 404; Green v. Langdon, 28 Mich. 221; Falner v. Wilson, 55 Ark. 77; Herbert v. Keck, 35 Neb. 508.</p>

<p>Attachment; Motion to Quash; Laches.</p> <p>A motion to quash an attachment must be made within a reasonable time after the return of the writ, and when made more than three years thereafter will be denied, where no reason for such delay is shown and a large amount of storage and other charges have meanwhile accumulated against the attached property.</p>

Hkaria'G on an appeal from a decree of the Supreme Court of the District of Columbia, sitting as an equity court, dismissing a hill to restrain the District of Columbia from collecting certain taxes.

Hearing on an appeal from a judgment of the Supreme Court of the District of Columbia, sustaining a motion for judgment under the 'iffd rule.