tin's patent; these being the claims remaining subject to the interference proceeding after the rulings upon the motion to dissolve. In reference to the issues thus made up, a considerable volume of testimony was taken in behalf of the respective parties, bearing upon the question of priority of invention.

The entire evidence has been very carefully examined by all three of the tribunals of the Patent Office the examiner of interferences, the examiners-in-chief, and the assistant Commissioner and they all came to the same conclusion, that is, that Johnson and Fry were entitled to priority of invention; and in that conclusion we fully concur. The evidence is conflicting, and very unsatisfactory. The onus of proof being upon Austin, we do not see how any other rational conclusion could have been arrived at than that reached by the tribunals of the Patent Office. Upon the subject of alleged disclosure of invention, a subject to which a large portion of the evidence is directed, the evidence on the part of Austin is anything but satisfactory; indeed, its reliability is exceedingly questionable. It is unnecessary to repeat the evidence in detail, as it could serve no useful purpose. But as a fair review of and comment upon the evidence, we cannot do better than to incorporate herein the following extract from the opinion of the assistant Commissioner, which deals with the most salient facts of the case:

"The testimony taken on the question of priority in this case is conflicting and very unsatisfactory. Johnson and Fry do not allege a conception of the invention until April 1, 1895, and Austin has introduced his own testimony and the testimony of two witnesses, Licht and Keeney, to the effect that a model introduced in evidence as Exhibit 3 was made prior to February 12, 1895. This model itself does not embody everything included in the issue, since it includes merely a single turn-table and not the combination of the several turntables which are necessary to a complete crossing or the means for operating all of those turn-tables together. It is true that this model would furnish a good basis for an oral disclosure of the entire device which Austin claims to have had in mind,

Opinion of the Court.

[18 App. but the witnesses in his behalf fail to testify to any such complete disclosure. Their testimony as to the existence of even the model itself is far from satisfactory. They do not describe the construction disclosed to them, but merely say, after seeing Exhibit 3, that it is a device which they saw prior to February 12, 1895. Being apparently unable to describe the construction and operation of the device disclosed to them, it would seem that their identification of Exhibit 3 is based merely upon its appearance. They admit, however, that Austin made other crossings, and that they saw them, and there is no very satisfactory explanation how they are able to identify this particular model as one made prior to February 12, 1895. The model itself has several different dates written thereon, but it is admitted that they were placed there at different times, and that no one of them was written there at the time indicated by it.

"Even if this evidence is accepted as proving a conception of the invention by Austin at the time stated, he did not thereafter exercise diligence in the matter until after Johnson and Fry had entered the field, and he was the last to reduce to practice. There is no proof that he did anything further with the invention until after John and Fry had constructively reduced it to practice by filing their application. He does state that he commenced castings for a full-sized crossing in July, 1895, but he is not corroborated by any witnesses, and the witness Winslow, called by Johnson, and Fry, states that he made the models for the castings referred to, and that they did not involve the invention here in controversy. Winslow is a prejudiced witness, and, therefore, his testimony is not entitled to much weight; but neither is the uncorroborated testimony of the inventor himself. It is also attempted by this witness to discredit the testimony of Austin and his witnesses in regard to a disclosure of the invention as early as February, 1895, but the substance of his testimony is merely that he was employed by Austin in the same works with the other witnesses and did not hear anything about the invention at that time. His testimony, therefore, has very little force. "Johnson and Fry have introduced testimony to the effect

that they disclosed the invention to others at least as early as the 1st of June, 1895. They have introduced three exhibits, photographs Nos. 1 and 2 and model No. 1, as illustrating the invention which they disclosed to others at that time. The photographs show everything embodied in the issue, but they were not made in June, 1895, and are introduced merely as an illustration of the thing which was disclosed at that time by other means. Model No. 1 is said to have been made in May, 1895, but, like Austin's Exhibit 3, it embodies merely a single turn-table and not the entire device in issue. The witness Lloyd states that Johnson and Fry showed him models like those illustrated in the photographs in May, 1895. A. E. Johnson states that model No. 1 was made about the first of June, and Parks corroborates him in this. Yeter states that he saw model No. 1 in May, 1895. The testimony of the witnesses as to the disclosure to them is not very full and satisfactory, but when taken in connection with the testimony of Johnson and Fry themselves it must be held to establish a conception by them as early as the 1st of June, 1895. This evidence is better than that produced on behalf of Austin, since the witnesses do give some description of the construction' disclosed to them aside from referring to the exhibits, and, therefore, if the evidence for Austin is held to establish his conception in February, that for Johnson and Fry must be given as much weight in establishing their conception in June. This conception by Johnson and Fry in June was prior to the time when Austin claims to have commenced work on castings embodying the invention, and, therefore, it is immaterial whether or not he did make those castings, since he was doing nothing when Johnson and Fry entered the field. It is not claimed that Austin was unable to reduce the invention to practice, either actually by making the device or constructively by filing an application for a patent, at any time he desired, and, therefore, his action in laying aside the invention until after Johnson and Fry had entered the field shows a lack of diligence on his part. He filed other applications covering inventions on the same line in the meantime.

"There has been much testimony introduced in regard to

an alleged disclosure of the invention to Austin by Johnson and Fry in June, 1895. It is alleged that Austin made a trip at that time to Veedersburg, where Johnson and Fry's works were located, and that the invention was then disclosed to him; but this Austin denies. Several witnesses testify positively to this disclosure, and others testify to the fact that Austin was in Veedersburg at that time."

But however this fact may be, the testimony is in direct conflict in regard to it, and it is not deemed of any such material importance as to require of this court a judgment as to the truth or falsity of the allegation.

We affirm the decision of the acting Commissioner, and direct this decision and the proceeding in the cause to be certified to the Commissioner of Patents as directed by the statute.

WILKES v. WILKES.

EJECTMENT; DOWER.

1. Whether the heirs-at-law of a deceased mortgagor, who had remained in possession of the mortgage premises under an express covenant, or by apparent sufference of the mortgagee, can maintain ejectment against a stranger having no claim under either the mortgage or the mortgagee, quære.

2. Where no dower has been assigned to the widow of a deceased grantor in a deed of trust, which conveyed the premises described therein to trustees to secure the payment of the deed of trust indebtedness, with the right in the grantor to remain in possession until default in the payment of the debt, and she occupies the premises as a home, her husband having left no other estate, his heirs-at-law cannot maintain an action of ejectment against her to recover possession of such premises; especially where the widow is also the administratrix of her deceased husband and, as such, the holder of the term of years created by the covenant in the deed of trust allowing him to remain in possession until default in payment of the deed of trust debt, the technical effect of which covenant, operating by way of redemise, was to create a legal estate for years in the grantor. No. 1044. Submitted March 7, 1901. Decided April 2, 1901.

HEARING on an appeal by the defendant (specially al

D. C.]

Statement of the Case.

lowed) from an interlocutory judgment of the Supreme Court of the District of Columbia sustaining a demurrer by the plaintiffs to defendant's pleas to a declaration in an action of ejectment. Reversed.

The COURT in its opinion stated the case as follows:

This case comes before us on a special appeal allowed from an interlocutory judgment in an action of ejectment. The suit was begun by the appellees as heirs-at-law of Thomas M. Wilkes, deceased, against Kate S. Wilkes, to recover the possession of certain land in the city of Washington.

The declaration alleges that Thomas M. Wilkes was seized in fee of said lands and died intestate on December 11, 1898, whereupon the title thereto, with the right of immediate possession, devolved upon the plaintiffs, and that the defendant entered and ejected them, etc.

Defendant filed a number of pleas, from which it appears: That she was the wife of said Thomas M. Wilkes and resided with him upon the premises in controversy at the time of his decease, the same having long been the family home. That on May 6, 1897, she joined with said Thomas M. Wilkes in the execution of a deed of trust, "for the purpose of carrying into full effect the uses and trusts hereinafter declared and in consideration of $5 paid," and so forth, conveying the premises to McLeran and Flather to have and to hold, and so forth, "unto and to the use of" the said trustees, "as joint tenants, their heirs and assigns in and for the uses and trusts following, and to and for no other use, intent or purpose."

These are: 1. To secure the payment of a note of even date for $4,300 made by said Wilkes and payable to the order of William E. H. Merritt five years after date, with interest, at 5 per cent. per annum, payable semi-annually, together with any expenses, attorney's fees, etc., arising in respect of the trust. 2. "Until any sale and conveyance as