Evening star. [volume] (Washington, D.C.) 1854-1972, 1909-02-02
FAILED TO PROVE RIGHT
Refusal to Be Examined Counted
Against Claim.
NEW TRIAL OF PICKFORD CASE
Judgment of Lower Court Reversed
on Two Assignments of Error
in Instructions.

of Appeals, which in an opinion by MI
Justice Van Orsdel today reversed the
action of Chief Justice Clabaugh of the
District Supreme Court and directed that
the writ of mandamus be discharged and
the petition of Mr.. Bieber be dismissed.
Bieber refused to appear for examina-
ton as to his physical condition when
summoned by the Commissioners under
an act of Congress authorizing them to
discontinue or reduce pensions when on
examination it was shown the pensioner
is not incapacitated.
A petition for mandamuS was filed by
Mr.. Bieber on the claim that he had a
vested right in the pension which the
Commissioners could not disturb. The
lower court granted the mandamus and
the Commissioners appealed.
The appellate court decides that the
contingency which gave Bieber d prop
erty right in the pension fund was one
continuing by the grace of Congress,
subject to be discontinued or termi-
mated at any time by Congress. His
rights in the premises, it is declared,
were not different or superior to those
of a pensioner under the general pen
sion laws of the United States. The
fund out of which the pension was paid,
says the court, was created by Congress
from the deductions from salaries and
from certain fines and licenses.
gress had created this fund by direct ap-
preparation. as it does the fund out of
Which military pensions are paid.
Requirement a Reasonable One.
''The requirement to appear for a medi-
cal examination" says Justice Van Ors-
del, was reasonable one. 1t was for
the protection Of the government. since
the pensions were only to be paid to po-
abilities incurred while in its service APP
peiee. by his failure to appear and sub
NIT to his examination when notified, or
to show cause why he failed to appear,
placed in the hands of the Commissioners
the power to reduce or discontinue further
payments of the pension.
There was no basis upon which they
could estimate reduction, and his fall
ure to appear was sufficient, after notice,
to create the presumption that his health
had been entirely restored. and that the
disabilities for which the pension was
originally granted no longer existed"
The notice to appear given Mr.. Bieber
was sufficient, concludes the court, and
it was not in his power to defeat the
operation of the law by refusing to ap-
pear before the medical board.
The right to recover for disease con-
tracted from exposure by the interruption
of passage of passenger on railway is
sustained by the Court of Appeals in an
Shepard. The court affirmed the judg-
ment for 81, 100 rendered by the lower
court in favor of Miss Mary Lukens
against the Washington, Alexandria and
Mount Vernon Railway Company.
Miss Lukens. March IL, 1905, was a
passenger on car of the defendant which
collided with another car near Mount
Vernon. and was kept at the point of
collision for nearly three house before
transportation was furnished her by the
defendant Alexandria
interval. she was exposed to the inclement
weather, and a severe illness resulted
The defense claimed that the accident
was not the proXimate cause Of the ILL
ness.
Naturalization Law Decision.
The first local decision under the new
naturalization law was rendered today by
the Court of Appeals in an opinion by
Mr.. Justice Van Orsdel. The court holds
that it Is necessary to make a witness
competent to testify in a naturalization
case that his name. as well as the appli-
cation of the woud-be citizen, be posted
in public place for ninety days prior
to the hearing. The object of the post
ing is to give the officers of the govern
ment an opportunity to inquire not only
into the right of the applicant to be ad
mitted to citizenship. but also into the
character and qualification of his wit
these prerequisites is void, the court de-
clareS.
Thomas DAILY applied for naturaliza-
ton and gave the names Of two witness
ses, one of whom. when examined.
showed no sufficient acquaintance with
DAILY. Another witness present. but
whose name had not been published,
was called and Justice Barnard per-
mitted the witness to testify and ad-
mitted Daily to citizenship. United
pa lx Cd and
order of naturalization is reversed by
the Court of Appeals.
Hibbs Decision Affirmed.
The appellate court, in an opinion by
Chief Justice Shepard. affirmed the action
Of the District Supreme Court in holding
in favor of William B. Hibbs in a suit
filed by the National Safe Deposit. Saw
ings and Trust Company to recover $4,000,
the value of certain shares of stock
wronSfully taken from the trust COM
pany and sold by the taker. through the
agency of the defendant Hibbs.
The court says that if the innocent pur-
chaser. under the circumstances Of the
case, would be protected in the title ac-
good reason why the equally innocent
agent should not be protected also. II
this purchaser is to be exempted from
liability then it seems reasonable and
just that the broker should be also.
The court today affirmed the judgment
of the lower court in the suit against
Harrison Crook by the International Trust
Company of Maryland to recover, as cred
itor Of the National Vaccine and Formal
dehyde Company, the amount Of the SUBJ
scriptionS of Dr. Crook to the stock of the
latter company, aggregating $500. DR..
Crook defended on the grounds. among
others, that when he signed the SubScrip
ton contracts it was agreed that he
would not be called upon to pay, and that
trust company to secure loan of $1,000
by the Vaccine Company without his
knowledge and consent. He further con-
tended that the first call necessary to fix
his liability under the contracts had not
been made until after the assignment.
The court held that. having given proxy
to another stockholder to represent him
at meetings of the Vaccine Company
when letters were sent to the trust COM
he was estopped from denying it.
New Trial Ordered.
In the case of Thomas II. Pickford, ap-
pellant, agt. James Hudson the Court of
Appeals today rendered an opinion. by
Mr.. Justice Van Orsdel. reversing the
judgment of the court below and remand
ing the case with instructions to grant a
new trial.
This was suit filed by Hudson against
Pickford to recover $4,000 damages for
alleged malicious prosecution on charge
of conspiracy to defraud Pickford of SILL
800. The jury rendered a verdict in favor
Of the plaintiff for 5000 damages.
From this judgment an appeal was
10 ,n AnnpaIS