the United States moneys due the failing contractor under the con-
tract, cannot, when garnished by the plaintiff, successfully set off as
against the plaintiff a sum due him from the funds in his hands as
an attorney's fee under an agreement with the surety, and claims
made against him by subcontractors who look to the garnishee only
in event they fail to recover against the surety, and a claim made
in a pending action against the garnishee for breach of contract; but
under such circumstances the plaintiff is entitled to a judgment of
condemnation for the amount of his claim. Id.
3. Where a motion for a judgment of condemnation in a garnishment pro-
ceeding is denied as having been prematurely filed, leave of court to
file a second motion, when such motion is proper, is not necessary.
Id.
4. The fact that the court below took cognizance of a second motion for
condemnation in a garnishment proceeding, and gave judgment
thereon after it had denied a prior motion as having been prema-
turely made, implies regularity, in the absence of anything in the
record to the contrary, and the procedure will not be inquired into
on appeal. Id.
GOVERNMENT EMPLOYEES. See ARMY AND NAVY, 1; OFFICERS, 1.
The right to use the parking in front of a dwelling house, and a fence
surrounding the parking, passes to a purchaser of the house as an
appurtenance to the land purchased by him, and he may be liable to
a pedestrian injured by a gate in the fence being allowed to negli-
gently swing outward over the sidewalk. Allen v. Linquist, 538. -
HUSBAND AND WIFE. See DIVORCE.
ILLEGALITY. See CONTRACTS, 1-4; PARTNERSHIP, 1.
INCOME TAX. See TAXATION.
INDIANS. See CONTRACTS, 2; PARTNERSHIP, 1; PUBLIC LANDS, 3.
1. Under the act of Congress of June 25, 1910 (36 Stat. at L. 855, chap.
431, Comp. Stat. 1913, sec. 4226), authorizing the Secretary of the
Interior to ascertain the legal heirs of a deceased Indian allottee of
land who has died intestate, and providing that the Secretary's de-
cision "shall be final and conclusive," the Secretary has no right to
ignore the legal heirs, and decide in favor of a collateral heir or a
stranger in blood, as such a decision would be arbitrary and ca-
pricious; but the statute merely clothes the Secretary with jurisdic
tion to identify the legal heirs, and in so doing he is as much bound
by the laws of descent of the jurisdiction where the land is located
as would be any other tribunal. U. S. ex rel. Mickadiet v. Lane,
414.
2. Where, after the Secretary of the Interior in a controversy between the
adopted children of a deceased holder of trust patents under the act
of Congress of February 8, 1887 (24 Stat. at L. 388, chap. 119,
Comp. Stat. 1913, sec. 4195), and his natural heirs, found that the
adoption was legal, and that the adopted children were the legal
heirs of the decedent, the adopted children petitioned the Secretary,
under the provisions of the acts of Congress of May 8, 1906 (34 Stat.
at L. 182, chap. 2348), and June 25, 1910 (36 Stat. at L. 855, chap.
431, Comp. Stat. 1913, sec. 4226) to isssue them patents in fee simple
on the ground that they were competent to manage their own affairs;
whereupon one of the natural heirs protested against the issuance
of such patents, and also filed a motion for a review and reconsid-
eration of the Secretary's former decision, on the ground of newly
discovered evidence tending to show that the decree of adoption was
void for fraud, and the Secretary decided he had jurisdiction to
reconsider his former decision, and ordered the withholding of
payment of funds accrued or deposited to the credit of the adopted
children since the pendency of the motion for reconsideration; it
was held in a suit in equity by the adopted children against the
Secretary, that the natural heirs, claiming as they did under the
adoptive parent, were estopped to attack the decree of adoption which
he had procured; also that the Secretary was without jurisdiction
to reopen his first decision in the absence of any claim that it was
procured by fraud, as the act of Congress of June 25, 1910, giving
him the right to determine who were the legal heirs of the deceased
allottee, provided that his decision should be final and conclusive,
and as there was no statute or rule of the Department providing for
a rehearing of such cases; and that a court of equity had jurisdic-
tion to compel the Secretary to recognize and enforce his first deci-
sion, as the adopted children were the legal heirs of the allottee,
and, as such, equitable owners of the allotments, and a readjudica-
tion of the question of their heirship would involve them in unnec-
essary trouble and expense and cast a cloud upon their title. Id.
INFANTS. See CRIMINAL LAW, 3-6; JUDGMENT, 3.
See COVENANTS, 1; INDIANS, 2; PARTNERSHIP, 1; PUBLIC
LANDS, 3, 4; TAXATION.
The supreme court of the District of Columbia, sitting as an equity court,
has no jurisdiction to entertain a suit against former employees of
the plaintiff to enjoin them from divulging the secrets of the plain-
tiff's invention acquired by them while in his employ, and for which
he has filed an application for a patent, and from prosecuting an ap-
plication which they have filed for a patent for the same invention,
as the Commissioner of Patents is vested with full jurisdiction under
the patent law to determine in an interference proceeding the ques-
tions involved, namely, who were the real inventors of the invention
in question, and whether the defendants were the employees of the
plaintiff for the purpose of carrying out his instructions in regard to
the construction of the devices embodying the invention, and as an
appeal will lie to this court from the decision of the Commissioner
in such an interference. (Citing Re Frasch, 20 App. D. C. 298;
Moore v. Heany, 34 App. D. C. 31, and Billings v. Field, 36 App. D.
C. 16.) Burlingame v. Manchester, 288.
INSTRUCTIONS TO JURY. See CARRIERS, 3, 4, 6; DAMAGES, 2; EVI-
DENCE, 7; INSURANCE, 2-7; LIBEL AND SLANDER, 6, 7; NEGLIGENCE,
1, 2, 3; OBJECTIONS AND EXCEPTIONS, 1-5, 7; TRIAL, 3, 5, 7, 8.
1. A ruling of this court upon a former appeal (Mays v. New Amsterdam
Casualty Co. 40 App. D. C. 249) in an action on an accident and
disability insurance policy, that questions asked in a schedule in
the application were not intended to elicit information concerning a
rejection for life insurance, adhered to on this appeal. New Am-
sterdam Casualty Co. v. Mays, 84.
2. The truth of a representation, by an applicant for accident and disa-
bility insurance, that he had not received medical or surgical at-
tention during the preceding five years, except for a hand cut lasting
four weeks, held, under the evidence upon that point, in an action
on the policy, a question for the jury. (Following Mays v. New
Amsterdam Casualty Co. supra.) Id.
3. The question as to the truth of a representation, by an applicant for
accident and disability insurance, that he had not received medical
or surgical attention during the preceding five years, except for a
hand cut lasting four weeks, is submitted to the jury, in an action
on the policy, under proper instructions, as to the defendant, where
the court, at its request, charges the jury that if they should find
from the evidence that the insured made a false statement, or con-
cealed the true situation in respect of any matter stated in the
schedule of questions in the application, that was material to the
risk, their verdict must be for defendant, and that if they find from
the evidence that the insured had received medical or surgical at-
tention during the five years immediately preceding the date of the
policy, except for some slight indisposition or injury, such as a
hand cut lasting four weeks, the verdict must be for defendant. Id.
4. Death from blood poisoning which is solely the result of an injury is
"death from bodily injuries which, independently of all other causes,
are effected solely and exclusively by external, violent, and accidental
means," within the terms of an accident and disability insurance
policy so defining loss of life by accident. Id.
5. Blood poisoning not caused, or contributed to, by any disease or bodily
infirmity of an insured at the time of an injury, but resulting solely
from the accident, is not a contributory cause of his death therefrom,
within the meaning of a special indemnity clause in an accident and
disability policy which provided that, in case loss by accident is
caused or contributed to, wholly or partly, directly or indirectly,
by blood poisoning, the liability of the insurer shall be one half of
the amount of the ordinary accident indemnity specified for such
loss. Id.
6. It is for the jury, in an action on an accident and disability policy
after the death of the insured from blood poisoning following an in-
jury, to determine whether he was suffering, at the time of his injury,
from a disease which was a contributory cause of the blood poison-
ing, where the evidence is conflicting as to that question; and
therefore it is proper for the court to decline to charge that the
amount of the verdict cannot exceed one half the principal indemnity
of the policy, under a special indemnity clause limiting the insurer's
liability to that amount in case loss of life by accident is caused
or contributed to, wholly or partly, directly or indirectly, by blood
poisoning, since the blood poisoning, if solely the result of the
insured's injury, did not contribute to his death within the meaning
of such clause. Id.
7. The defendant cannot, in an action on an accident and disability policy
after the death of the insured from blood poisoning following an in-
jury, complain of the refusal to charge that the amount of the
verdict cannot exceed one half the principal indemnity of the policy,
under a special indemnity clause limiting the insurer's liability
to that amount in case loss of life by accident is caused or con-
tributed to, wholly or partly, directly or indirectly, by blood poison-
ing, where no exception is reserved to the court's charge in submit-
ting to the jury the question whether the blood poisoning was solely
the result of the accident, and the court instructs the jury, at de-
fendant's request. that if they find from the evidence that the in-
sured's death was caused or contributed to, wholly or partly, directly
or indirectly, by blood poisoning, their verdict, if for plaintiff, can-
not exceed one half the capital sum of the policy, with interest.
Id.
INTEREST. See ATTACHMENT, 1.
IRREPARABLE INJURY. See TAXATION.
JUDGES, EXTRA COMPENSATION OF. See COURTS, 4.
JUDGMENT. See APPEAL AND ERROR, 5; ATTACHMENT, 3; COURTS, 3; IN-
DIANS, 1, 2.
1. The entry on motion of the plaintiff of a judgment by the court below
for a part of the plaintiff's claim, admitted to be due by the defend
ant in his affidavit of defense, ends the controversy between the
parties, and precludes the plaintiff from prosecuting his suit for
the balance of his claim. Overland Motor Washington Co. v. Alex-
ander, 282.
2. At common law but one final judgment could be rendered in a single
cause of action between the same parties, and this rule is still fol-
lowed in the absence of any rule or statute to the contrary. Id.
3. A final judgment cannot be set aside by the court which rendered it,
after the close of the term at which it was rendered, because the
case has then passed beyond the control of the court. Board of
Children's Guardians v. Juvenile Court, 599.
4. After the expiration of the term of the juvenile court, during which the
court committed a child found guilty of larceny to the Board of
Children's Guardians, the court has no power to set aside the com
mitment and permit the child to return to its home on probation. Id.
JUDGMENT, MODIFICATION OF ON APPEAL. See APPEAL AND ERROB,
8.
JUDGMENT OF CONDEMNATION. See GARNISHMENT, 2-4.
JUDGMENT, VACATION OF. See JUDGMENT, 3, 4.
JURY, POLL OF. See CRIMINAL LAW, 6.
JUSTICES OF THE PEACE. See Courts, 4.
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