sidering the early cups upon which Luellen based his claim to priority, the Assistant Commissioner reached the conclusion that they showed nothing more than the prior art, and therefore that Luellen must be restricted to his filing date. The Assistant Commissioner, however, further suggested that, even if it be assumed that Luellen did produce in 1907 or 1908 something patentably different from the prior art, the conclusions of the lower tribunals that he had secreted and suppressed the same until after the Claussen and Claus patent were correct.

Assuming, without deciding, that Luellen reduced the invention to practice in 1907 or early in 1908, we fully agree with the Patent Office tribunals that his rights became subordinated to those of the appellees, because of his deliberate concealment and suppression of the invention. Mason v. Hepburn, 13 App. D. C. 86; Matthes v. Burt, 24 App. D. C. 265; Howard v. Bowes, 31 App. D. C. 619; Dieckmann v. Brune, 37 App. D. C. 399. The evidence upon this point has been so fully reviewed by the Examiner of Interferences that further analysis is unnecessary.

It is insisted, however, in behalf of Luellen, that the testimony of one of his witnesses shows that Claussen and Claus derived the invention from a Mr. House, whose conception was subsequent to that of Luellen, and, arguing from that postulate, they contend that Claussen and Claus are not inventors at all, and hence have no standing in this proceeding. In Foster v. Antisdel, 14 App. D. C. 552, the same contention was made and rejected, the court observing that the interference proceeding "was instituted to determine, as between the parties to it, which of them is entitled to priority of the invention claimed,” and that evid. .ce that some other party than the parties to the pending proceeding is the real inventor is impertinent to the issue. This ruling has since been followed. Pope v. McKenzie, 38 App. D. C. 111. Lemp v. Randall, 33 App. D. C. 430, is not in conflict with these decisions. There it was contended that evidence of the alleged joint inventors, Randall and Bates, showed that they were not in fact such inventors, but that the invention was the sole production of Randall. In other words,

it was in effect contended that Randall and Bates had admitted that they were without standing in the proceeding by reason of the fact that they were not joint inventors. There was no attempt, as we pointed out, "to show that the right to the award of priority was in a third party, an alien to the proceeding, but that the senior parties to the proceeding were without standing, because it appeared that they were not joint inventors." The question for determination in the present case is which of the parties thereto is entitled to the award of priority, and the question whether a third party may subsequently defeat the successful party here is beside the issue and may not be raised.

Moreover, even if we should consider the evidence in reference to the House cup the result would be the same, since we fully agree with the Commissioner's ruling that that cup is not as near the issue here as were the cups of the prior art. The decision is affirmed.

Affirmed.

CRAIG v. PARISH.

PLEADING; BILLS OF PARTICULAR; ASSUMPSIT.

1. In complying with an order requiring the plaintiff to furnish a bill of particulars in an action based upon a contract by the defendant's testator to pay the plaintiff's intestate a specified percentage of his recovery on a government claim, "in return for pecuniary and other aid rendered to me," it is sufficient for the plaintiff to show that services were rendered and money advanced which formed a part of the consideration named in the contract, irrespective of the value of the services and the amount of the advances, as the contract was contingent and the parties fixed the value of the services, including the pecuniary aid rendered, at the percentage mentioned. (Mr. Chief Justice Shepard dissenting.)

2. The plaintiff is not required to state or disclose his evidence, such as letters and memoranda, in his bill of particulars.

3. Where the defense to an action based upon a contract by the defendant's testator to pay to the plaintiff's intestate a percentage of

the recovery on a government claim, in return for pecuniary and other aid rendered, is that the services were rendered and the advances made to aid in the prosecution of the claim by the plaintiff's intestate at a time when he was in government employ, the plaintiff cannot be required to set out in his bill of particulars facts negativing such defense.

4. The action of assumpsit is equitable in its character, furnishing a remedy highly favored by the courts, and a liberal rule will be applied in the matter of requiring particulars of demand, especially where both parties to the promise sued on are dead.

In general, a bill of particulars is sufficient if information of the nature of the plaintiff's claim is given with sufficient certainty so that the defendant will not be misled or deceived on the trial.

6. Quare, whether defects in a bill of particulars can be urged by the defendant after he has pleaded to the merits, or after the cause has been remanded by the appellate court for retrial, and not for dismissal, for failure to file an additional bill of particulars.

No. 2706. Submitted December 10, 1914. Decided April 19, 1915.

HEARING on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia in favor of the defendant, entered after the failure of the plaintiff to comply with two orders requiring an amended bill of particulars to be filed. Reversed.

The COURT in the opinion stated the facts as follows:

Annie F. Craig, administratrix of the estate of Samuel Ramsey, brought this action against Emily E. Parish, executrix of the will of J. W. Parish, to recover an amount equal to 5 per cent of a certain claim allowed by the United States government to J. W. Parish for ice furnished in the year 1863.

It is alleged that Parish, on October 9, 1900, agreed to pay Ramsey, in consideration of pecuniary and other aid rendered to Parish, an amount equal to 5 per cent of the gross sum that should ultimately be awarded on said ice claim. In May, 1909, the government awarded Parish the sum of $181,358.95, and the amount claimed is 5 per cent of the award, or $9,067.94. The declaration also contains the usual common counts for work

done and materials furnished and for money had and received. For particulars of demand, plaintiff stated the sum equal to 5 per cent of the Parish award, $9,067.94, with interest from June 15, 1909, and by amendment of the particulars of demand, among other things, set up the following contract:

To Whom It May Concern:

October 9th, 1900.

In return for pecuniary and other aid rendered to me, I promise to pay to Samuel Ramsey, of Washington city, District of Columbia, his heirs and assigns, an amount equal to 5 per cent of the gross amount ultimately allowed by the United States on my claim now pending in Congress, which is based upon a contract for furnishing ice to the army in the year eighteen hundred and sixty-three (1863).

Witnesses:

J. H. McGowan,
Arthur N. Marr.

J. W. Parish.

Defendant pleaded non assumpsit, statute of limitations, and usury. The case went to trial, resulting in a verdict for plaintiff in the full amount claimed. On motion, the court vacated the verdict, and ordered a new trial. A second trial was had, which resulted in another verdict for the full amount. From the judgment thereon, defendant appealed to this court, where the judgment was reversed. Parish v. Craig, 40 App. D. C.

138.

When the cause was remanded for a third trial, the court, in response to a motion of the defendant, ordered plaintiff to file an additional bill of particulars. Plaintiff complied with the order, but was confronted shortly by a similar motion and order, to which he responded by filing the following:

"Now comes the plaintiff and presents this bill of particulars in compliance with the order of court made herein, and asks that the same be taken as the amended bill of particulars in this cause, and be attached to the declaration as such in place of

Vol. XLIII.-29.

the particulars of demand and additional bill of particulars hitherto filed.

"The plaintiff's bill of particulars is as follows:

"(1) The sum claimed by the plaintiff is as follows:
"1909.

"June 15. To a sum equivalent to 5 per cent of
$181,358.95, being the gross amount allowed
upon the J. W. Parish claim against the United
States, due according to the agreement of Oc-
tober 9, 1900, hereinbefore set forth...

"Interest, from June 15, 1909.

.$9,067.94

"(2) A true and exact copy of the contract in writing, referred to in plaintiff's declaration and attached to her declaration, as follows:

"To Whom It May Concern:

"October 9th, 1900.

"In return for pecuniary and other aid rendered to me, I promise to pay Samuel Ramsey, of Washington city, District of Columbia, his heirs and assigns, an amount equal to 5 per cent of the gross amount ultimately allowed by the United States. on my claim now pending in Congress, which is based upon a contract for furnishing ice to the army in the year eighteen hundred and sixty-three (1863).

"Witnesses:

"J. H. McGowan,
"Arthur N. Marr.

"J. W. Parish.

"(3) That the promise in writing set forth in the preceding paragraph hereof was made by said J. W. Parish in consideration of $1,080 in cash advanced to Parish by Ramsey in the year 1900, on or about the following dates:

"September 29, 1900, $180.

"October 26, 1900, $900.

"And as a further consideration plaintiff says that Ramsey performed for Parish certain estimates of the amount due to Parish from the United States under the Parish ice contract,