Imágenes de páginas

The plaintiff's trade-mark in its turn closely imitates in most particulars a much earlier and widely known trade-mark of Van Den Bergh & Co., of Antwerp. It is true that in the latter there is but one bell and that the title correspondingly is Ginebra de la Campana, but the intent to get the benefit of the Van Den Bergh device is too obvious to be doubted. We do not go into the particulars of the different registrations, etc., of this latter, beginning with a Spanish certificate of the Antwerp firm in 1873. For although the plaintiff elaborately argues that under the Spanish régime trade-mark rights could be acquired only by statutory registered grant; that Van Den Bergh & Co. never acquired any such rights in the Philippines; that if they did they lost them by failing to register or lapse of time; and that he was free to get a registered title as against any certaificate of their; those questions are immaterial in this case. With or without right the earlier trade-mark was in widespread use and well known, and the obvious intent and necessary effect of imitating it was to steal some of the good will attaching to it and to defraud the public. The courts below found the fraud and that both plaintiff's and defendant's marks were nothing more than variations upon the earlier mark. If there was any claim intended to be put forward on the ground of unfair competition, the prayers of the complaint and the plaintiff's testimony show that such claim depended fundamentally on the alleged infringement of trade-mark. Any matters of fact in dispute were sufficiently disposed of by the concurrent findings of the courts below.

Supreme Court of the United States.


Error to the Supreme Court of the Territory of Hawaii.

(226 U. S., 462.)

No. 109. Argued December 20, 1912. Decided January 6, 1913.

On a pure matter of form as to the parties in a suit coming here from a court of a Territory, and where the whole interest in a judgment sued upon was before that court, this court should not go behind the local practice.

A joint judgment ceases to be joint by the death of one of the parties. Where the joinder of an executor of a party whose interest has ceased is simply a mistake, it is not reversible error.

20 Hawaii, 138, affirmed.

Memorandum opinion by direction of the court. No. Holmes, J. Judgment affirmed.

This is a suit on a deficiency judgment rendered upon foreclosure of the mortgage that was under consideration in Kawananakoa v. Polyblank (205 U. S., 349). The judgment was in favor of Polyblank, trustee, and Cockett, sole beneficiary, against Kawananakoa and the plaintiff in error, Kalanianaole. Before the present suit was begun the trustee resigned, Smithies was duly appointed successor in the trust and the former trustee assigned the judgment to him. Smithies and his beneficiary then brought this action against the

plaintiff in error and the executor of Kawananakoa who had died. The executor demurred and had judgment. The plaintiff in error then answered, setting up the discharge of the executor and that the plaintiffs allowed the claim against the latter to be barred by time before bringing suit. The case was heard upon mutual admissions of the facts set up in the declaration and answer. In argument the plaintiff in error also objects that only the original judgment creditors could sue. Both objections were sufficiently answered in the court below. That as to the plaintiffs is pure matter of form, on which we should not go behind the local practice. The whole interest in the judgment was before the court. As to the second, the judgment was sued upon as a joint judgment, but it ceased to be joint by the death of one of the parties bound, as is the nature of joint obligations. Edsar v. Smart (T. Raym. 26; Y. B. 3 ed. 3, 11, pl. 37). (See 2 Vernon, 99.) The joinder of the executor was simply a mistake that did no harm. (See Bierce v. Hutchins, 205 U. S., 340, 347.)

Supreme Court of the United States.


In Error to the District Court of the United States for Porto Rico.

(226 U. S., 600.)

No. 8. Argued October 30, 1912.

Decided November 4, 1912.

Per Curiam: Judgment affirmed. Gonzales v. Buist (224 U. S., 126, 130; Humes v. United States, 170 U. S., 210, 212; Schlemmer ". Buffalo R. R. Co., 205 U. S., 1, 10; Improvement Co. v. Munson, 14 Wall., 442, 448).

Supreme Court of the United States.


Error to the District Court of the United States for Porto Rico. (227 U. S., 100.)

No. 280. Argued January 6, 7, 1913. Decided January 27, 1913.


Ordinarily the granting or refusing of a continuance is within the discretion of the trial court and will only be interfered with by this court in a clear case of abuse; but in this case the assertion of error based upon the refusal to continue has some foundation, and is not merely frivolous, so the motion to affirm is denied.

Section 953, Revised Statutes, confers authority on, and makes it the duty of. a judge of the Federal court to settle controversies concerning the bill of exceptions in a case tried before his successor who is, by reason of death or disability, unable to do so; and this applies to the judge of the District Court of the United States for Porto Rico.

While it is the duty of plaintiff in error to obtain the approval of the bill of exceptions by the judge who tried the case, or, in case of his death or disability, by his successor, there are circumstances under which delay will be excused, and a motion to dismiss under Rule 9 for failure to file the bill denied, so as to give the plaintiff in error reasonable opportunity to have the bill settled.

In this case, the trial judge having died and neither party having moved for a settlement of the bill by his successor, and there having heretofore been room for doubt as to whether section 953, Revised Statutes, governs this case, the motion to dismiss is denied, but without prejudice to renew if plaintiff in error does not within a reasonable time seek a settlement of the bill.

Where a transcript of record has been filed for purposes of a motion to dismiss for want of bill of exceptions, which is denied without prejudice, the bill when settled, or the reasons for failure to obtain its settlement, can be included in a supplementary transcript.

Opinion by White, Chief J. No dissenting opinion.
Motion to dismiss or affirm denied without prejudice.

In 1911 defendant in error moved under Rule 9 to docket and dismiss the writ of error for failure to file the record. Plaintiff in error opposed because a bill of exceptions was yet unsettled in the hands of the court below, and the motion was, on April 3, 1911, denied" without prejudice to a renewal of same if case is not docketed within a reasonable time after the bill of exceptions is settled." Shortly thereafter, on May 3, 1911, there was filed as a transcript a paper containing the pleadings and certain journal entries and other documents purporting to relate to proceedings had in the cause in the court below and to certain steps stated to have been taken concerning a bill of exceptions, there being, however, no such bill in the record. Putting out of view the statements made exhibiting the facts and circumstances which gave rise to the reserving of an exception and the preparations of a bill of exceptions and the effort to settle the same, and looking only at the pleadings and journal entries properly embraced in the record, the following is shown:

The suit on November 29, 1910, was tried, resulting in a failure of the jury to agree. On December 2, 1910, the case was set for retrial at 10 a. m. on the following day. When the case was called for trial defendant asked a postponement" on account of the short time at his disposal to prepare the defense in the case." On this request being denied an exception was taken and the counsel for the defendant withdrew. After the introduction of evidence for the plaintiff the jury, as instructed by the court, returned a verdict for the plaintiff, upon which judgment was entered. It is to this judgment that the writ of error is directed, it having been allowed by the trial judge shortly after the trial, a supersedeas bond having been also approved about the same time. The assignment of errors was based solely on error asserted to have been committed in refusing the request to continue the case. It appears also from the record that a bill of exceptions was tendered to the court for approval, which bill presumably contained a statement of the facts connected with the refusal of the continuance which were relied upon to sustain the assignment of error made on that subject.

The matter is again brought here on a motion to dismiss because there is nothing within the jurisdiction of this court to review, as there is no bill of exceptions, or to affirm, because of the wholly

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frivolous and unsubstantial character of the ground of error relied upon, that is, the failure of the court below to grant a continuance.

Supreme Court of the United States.


Error to the District Court of the United States for Porto Rico. (227 U. S., 145.)

No. 72. Submitted December 6, 1912. Decided January 27, 1913.


Where the plaintiffs in an action under the employers' liability act are the sole beneficiaries under the statute a general verdict in their favor. without instructions on this point, overcomes the objection of lack of capacity to sue. The employers' liability act extends to Porto Rico, as held in American Railroad Company v. Birch (224 U. S., 547), and now held that the safety appliance acts also extend to Porto Rico.

While Porto Rico has not for all purposes been fully incorporated into the United States. it is not foreign territory, nor are its citizens aliens. (Williams v. Gonzales, 192 U. S., 1.) Its organization is in most essentials that of a Territory. (Kopel v. Bingham, 211 U. S., 468.)

In view of the provisions of section 3 thereof effect can not be given to the employers' liability act of 1908 in Porto Rico unless the safety appliance acts referred to in section 3 are in force there also.

Under the employers' liability act of 1908 pecuniary damages only are recoverable, and these do not include loss of society or companionship of a son to a parent. (Michigan Central Railroad v. Vreeland, ante, p. 59.)

5 Porto Rico Fed. Rep., 401, 427, reversed.

Opinion by Lurton, J. No dissenting opinion.
Reversed and remanded for a new trial.

The facts involve the construction of the employers' liability act of 1908 before its amendment by the act of 1910, and the application of the act to Porto Rico.

This is an action under the employers' liability act of April 22, 1908, 35 Statutes at Large, 65, chapter 149, before its amendment by the act of April 5, 1910, 36 Stat., 291, chapter 143. The plaintiffs were the surviving parents of Pedro Didricksen, an employee of the American Railroad of Porto Rico, who died from an injury sustained while in its service.

Supreme Court of the United States.


Appeal from the District Court of the United States for Porto Rico. (227 U. S., 181.)

No. 129. Submitted January 21, 1913. Decided February 3, 1913.


Held that the instrument involved in this case was an actual contract for purchase and sale of the land described therein and not merely an option which expired at the time specified therein.

Accepting a lease of property described in a contract for sale thereof does not amount to an estoppel against enforcing the contract if the instrument recognizes an outstanding dispute and provides that rights on either side shall not be affected.

Opinion by Holmes, J. No dissenting opinion.
Decree affirmed.

The facts involve the construction of a contract for sale of real estate in Porto Rico.

This is a bill for the specific performance of a contract to sell land, made by the defendant Gutierrez. The defendant Robledo claims under a lease from the vendors made since the contract and found to have been taken with notice. The district court entered a decree for the plaintiff, and the defendants appealed. There is also a motion to dismiss on the ground that the principal appellants have accepted a part of the purchase money paid into court in pursuance of the decree, but we shall not deal with this, because we are of opinion that the decision was right, and therefore there is no need to consider whether the appellants are estopped by doing what they say they were compelled to do upon penalty of being held in contempt. The motion to dismiss did not go to the jurisdiction but raised another question on the merits.

Supreme Court of the United States.


Appeal from the Supreme Court of Porto Rico.
(227 U. S., 270.)

No. 145. Submitted January 24, 1913. Decided February 24, 1913.


The government of Porto Rico can not be sued without its consent. The government of Porto Rico, as established by the organic act, with some possible exceptions, comes within the general rule exempting a government sovereign in its attributes.

That government of Porto Rico, as established by the organic act of April 12, 1900, is a strong likeness of that established for Hawaii which has immunity from suit. (Kawananakoa v. Polyblank, 205 U. S., 349.)

The provision in scetion 7 of the organic act of Prto Rico that the People of Porto Rico shall have power to sue and be sued is not to be construed as destroying the grant of sovereignty given by the act itself.

Like words may have one significance in one context and a different significance in another.

In construing an organic act of a Territory, this court will consider that Congress intended to create a government conforming to the American system of divided powers-legislative, executive, and judicial-and did not intend to give to any one branch of that government power by which the government itself so created could be destroyed.

The words "to sue and be sued" as used in section 7 of the organic act of Porto Rico, when construed in connection with the grant of governmental powers therein contained, amount only to a recognition of a liability to be sued in case of consent duly given.

16 Porto Rico, 481, reversed.

Opinion by White, Chief J. No dissenting opinion.

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