ment roll. The section has no bearing upon the case where a demurrer is sustained." In the case at bar, the demurrer was sustained, and plaintiff, by joining issue on the plea of limitations, abandoned her amended replication, and is not now in position to ask this court to rule upon the demurrer. This disposes of the appeal. The judgment is affirmed, with costs. In re KLAUSMEYER. (Court of Appeals of District of Columbia. Submitted November 11, 1925. Decided December 7, 1925.) No. 1770. Patents 17-Elevating mechanism, having nut formed to present a transverse section of its threaded bore to permit examination to determine wear, held to involve invention. Elevating mechanism, consisting of member adapted to be moved against opposition and a nut secured to said member, and formed to present to view a transverse section of its threaded bore to permit examination to determine extent of wear on threads, held to involve invention rather than mere exercise of mechanical skill. Appeal from Decision of Commissioner of Patents. Application by David C. Klausmeyer for patent. From a decision of the Commissioner of Patents, denying application, applicant appeals. Reversed, and claims. awarded. A. F. Nathan, of New York City, for appellant. T. A. Hostetler, of Washington, D. C., for Commissioner of Patents. Before MARTIN, Chief Justice, ROBB, Associate Justice, and SMITH, Judge of the United States Court of Customs Appeals. ROBB, Associate Justice. Appeal from a decision of the Patent Office, refusing the claims, 15 in number, of an application for patent. There is needless multiplication of claims. Claims 1, 2, 5, and 7 fully cover the device, and of those we here reproduce claim 5: "5. A safety construction for elevating mechanism consisting of a member adapted to be moved against opposition; a nut secured to said member and formed to present to view a transverse section of a portion of its threaded bore; and a screw adapted to cooperate with said nut to shift said member." In a modern radial drill, the drill spindle is mounted on a heavy arm projecting horizontally from the vertical post. The functioning of the drill is accomplished by moving this heavy arm up and down on the post, through the agency of the large screw-engaging nut which is affixed to the arm, so that the rotation causes the nut to travel up and down through the full length of the screw. It is apparent that the wear on the threads of this nut is much greater than the wear on the threads of the post. As this arm is very heavy, sometimes weighing as much as a ton, when the threads of the nut become sufficiently worn, there is danger that they will be stripped and permit the arm to fall. The nut being embedded, there was no way in which its threads might be inspected, except by dismantling the lifting screw. This danger and difficulty applicant sought to overcome. He solved the problem by drilling a hole through the arm and wall of the nut, so that the hole approximately centers on threads of the nut, thus exposing them to view. This is quite well illustrated in Figure No. 3, here reproduced: 10 F.(2d) 655 G. W. Saywell, of Cleveland, Ohio, for appellee. Before MARTIN, Chief Justice, ROBB, Associate Justice, and SMITH, Judge of the United States Court of Customs Appeals. ROBB, Associate Justice. Appeal from tion, was intended "to provide automatic E. T. Brandenburg, J. F. Brandenburg, lubrication without the employment of wick- and Lee B. Kemon, all of Washington, D. C., ing or other material." The hole he pro- for appellant. vided was for that purpose, and that alone. In our judgment, it entirely fails to solve the problem with which applicant was confronted. A hole drilled toward the center of the screw would permit lubrication, but not inspection of threads of the nut. Had the Metzger patent been at all suggestive of appellant's device, it is strange that skilled mechanics should have overlooked it for more than 30 years. Applicant has done more than merely drill a hole in the nut. He conceived the idea of drilling such a hole as to permit inspection of threads of the nut, and this, in our view, involved more than the exercise of mere mechanical skill. As an alternative, applicant suggests the cutting away of a portion of one end of the nut, so that its threads may be visible and certain of the claims cover this alternative structure. The decision is reversed, and claims 1, 2, 5, and 7 are awarded the applicant. a decision of an Assistant Commissioner of Patents in a trade-mark opposition proceeding, in which the decision of the Examiner of Interferences was reversed and the opposition dismissed. The opposer, appellant here, and its predecessor, long prior to the adoption in 1921 by the applicant, appellee here, of the trade-mark "Pappoose" for use on salt, had built up a very extensive business under the same mark in connection with the sale of various condiments, including pepper sauce, table sauce, mustard, tomato catsup, cayenne pepper, whole and ground pepper, and the like. The Examiner of Interferences found that salt belongs to that class known generally as condiments; that "it is merely one of a group including pepper, mustard, and spices, which are used for seasoning food." With that postulate, his decision, of course, was against the right of registration by the newcomer. The decisions of this court, upon which he relied, fully sustain his ruling. See Walter Baker & Co. v. Harrison, 32 App. D. C. 272; Simplex Elec. H. Co. v. Gold Car H. & L. Co., 43 App. D. C. 28; AngloAmerican I. L. Co. v. Gen. Elec. Co., 43 App. D. C. 385; Fishbeck Soap Co. v. Kleeno Mfg. Co., 44 App. D. C. 6; Canton Culvert & Silo Co. v. Consol. Car-Heat. Co., 44 App. D. C. 491; Gutta-Percha & Rubber Mfg. Co. v. Ajax Mfg. Co., 48 App. D. C. 230; Macy & Co. v. N. Y. Grocery Co., 50 App. D. C. 105, 267 F. 749; Cal. Pkg. Corp. v. Price-Booker Mfg. Co., 52 App. D. C. 259, 285 F. 993; Cal. Pkg. Corp. v. Halferty, 54 App. D. C. 88, 295 F. 229. The wide reputation established by the opposer furnishes the only apparent excuse for the adoption of this mark by the applicant. Decision reversed. Reversed. In re LOBDELL. (Court of Appeals of District of Columbia. Submitted November 13, 1925. Decided December 7, 1925. Petition for Rehearing Denied December 24, 1925.) No. 1771. Patents 21-Substitution of wooden spokes for those of other material in steering wheel not patentable invention. Substitution of wooden spokes for those of other material in steering wheel for motor vehicles held not to involve invention. Appeal from Commissioner of Patents. In the matter of the application of Edward J. Lobdell for a patent. From a decision of the Commissioner of Patents, denying application, applicant appeals. Affirmed. C. S. Grindle and J. A. Watson, both of Washington, D. C., for appellant. the substitution of wooden spokes, in view of the teachings of the prior art, did not involve invention. The decision is affirmed. Affirmed. LOOSE-WILES BISCUIT CO. v.,JOHNSON EDUCATOR FOOD CO. (Court of Appeals of District of Columbia, submitted November 13, 1925. Decided December 7, 1925. Motion for Rehearing Denied December 19, 1925.) No. 1773. Trade-marks and trade-names and unfair competition 43-"Cookieland" held not descrip. tive, within meaning of Trade-mark Act. "Cookieland" held not descriptive, within meaning of Trade-mark Act (Comp. St. 9485 et seq.), so as to prevent its registration as trade-mark for cookies and biscuits. Appeal from Commissioner of Patents. T. A. Hostetler, of Washington, D. C., Food Company for registration of trade for Commissioner of Patents. Before MARTIN, Chief Justice, ROBB, Associate Justice, and SMITH, Judge of the United States Court of Customs Appeals. ROBB, Associate Justice. Appeal from a decision of the Patent Office refusing claims for a patent on an automobile steering wheel. Claim 1, of the several claims, is sufficiently illustrative, and is here reproduced: "1. A steering wheel for motor vehicles comprising a metal hub having a plurality of sockets arranged in substantially the same plane, a wooden rim rounded in cross-section throughout and adapted to be gripped at any point transversely by the hand of the operator, and wooden spokes having their inner ends mounted in said sockets of the hub and their outer ends rigidly secured to said rim." Appellant has substituted for the spokes of the prior art wooden spokes, and, while his wheel undoubtedly is superior in some respects to the wheels of the prior art, we are constrained to agree with the Assistant Commissioner that the advantages claimed for this wheel are inherent and universally known to reside in the material employed, and that mark, opposed by the Loose-Wiles Biscuit Company. From a decision of the Commissioner of Patents, granting registration, opposer appeals. Affirmed. I. U. Townsend, Jr., of Boston, Mass., A. D. Adams, of Washington, D. C., and F. L. Emery, of Boston, Mass., for appellant. Henry Calver, of Washington, D. C., for appellee. Before MARTIN, Chief Justice, ROBB, Associate Justice, and SMITH, Judge of the United States Court of Customs Appeals. ROBB, Associate Justice. Appeal from concurrent decisions of the Patent Office dismissing appellant's opposition to the registration by appellee of the word "Cookieland" as a trade-mark for cookies, crackers, cakes, and biscuits. Appellant does not use this mark as a trade-mark, but bases its opposition upon the contention that the word is descriptive. We agree with the Patent Office that "Cookieland" is not descriptive, within the meaning of the Trade-mark Act (33 Stat. 724 [Comp. St. § 9485 et seq.]), and hence that it is registrable to the appellee. Decision affirmed. Affirmed. 10 F.(2d) 657 UNITED STATES v. MOTLOW et al. (Before Mr. Justice Butler, of the Supreme Court, Sitting as Circuit Justice in the Circuit Court of Appeals for the Seventh Circuit. February, 1926.) 1. Bail 47-Where writ has been issued and citation served in criminal case, Circuit Justice, who is member of Circuit Court of Appeals reviewing case, is authorized to fix and allow bail. Where the writ has been issued and citation has been served in a criminal case, the Circuit Justice, who is a member of the Circuit Court of Appeals to which the case is taken for review, is authorized to fix and allow bail. 2. Bail 47. Power to grant bail is attended by duty to hear applications therefor. 3. Ball ~52 — Eighth Amendment, providing that excessive bail shall not be required, safe guards right to bail, at least before trial, and is intended to prevent dénial of bail by fixing amount thereof unreasonably high. The provision of the Eighth Amendment that "excessive bail shall not be required" safeguards the right to give bail, at least before trial. The purpose is to prevent the practical denial of bail, by fixing the amount so unreasonably high that it cannot be given. 4. Bail 44-Persons convicted of conspiracy to violate National Prohibition Act held en titled to bail pending review (Circuit Court of Appeals rule 32; National Prohibition Act [Comp. St. Ann. Supp. 1923, § 101384 et seq.]; Judicial Code, §§ 119-122 [Comp. St. §§ 1111-1114]; Rev. St. §§ 1007, 1014, 1015, 1016 [Comp. St. §§ 1666, 1674, 1679, 1680]; Const. Amend. 8; Act Feb. 13, 1925, § 8, subd. "c" [Comp. St. Supp. 1925, § 1126b]; Ordinance July 13, 1787, art. 2 [Comp. St. 1918, p. 6]). Persons convicted of conspiracy to violate National Prohibition Act (Comp. St. Ann. Supp. 1923, § 101384 et seq.). who petitioned for writs of error on very day that sentences were imposed, though, under Act Feb. 13, 1925, § 8, subd. "c" (Comp. St. Supp. 1925, § 1126b), they had three months therefor, and in application for bail stated that their assignments of error were made in good faith on assurance of counsel that they were well founded, held entitled to bail pending determination of Circuit Court of Appeals, in view of Circuit Court of Appeals rule 32, Judicial Code, 88 119-122 (Comp. St. §§ 1111-1114), Rev. St. $$ 1007, 1014, 1015, 1016 (Comp. St. §§ 1666, 1674, 1679, 1680), Const. Amend, 8, and Ordinance July 13, 1787, art. 2 (Comp. St. 1918, p. 6). 5. Bail 42-Appeals may be discouraged by right exercise of discretion as to bail, and proper exercise of discretion is never arbitrary, fanciful, or capricious, but is governed by reason and law applicable to cases under consideration. Judges may do much to discourage appeals taken on frivolous grounds, merely for delay, by appropriate exercise of their discretion within established lines in granting or withholding 10 F. (2d)-42 bail, as suggested by the Conference of Senior Circuit Judges held in June, 1925. But the proper exercise of judicial discretion is never arbitrary, fanciful, or capricious; it is deliberate, and governed by reason and the law applicable to the cases under consideration. 6. Bail 44. Applicants for bail pending review of conviction are not required to show that they are entitled to a reversal. 7. Bail 49-Refusal of bail, after conviction by trial judge and two circuit judges, should be considered but not allowed to control on subsequent application. Refusal of bail, after conviction by trial judge and by two circuit judges, on further application should be thoughtfully considered but not allowed to control a just exercise of discretion in determining application. One Motlow and thirty-eight others were charged with conspiracy to violate the NaAfter conviction, tional Prohibition Act. Harry Levin and nine others petition for bail pending review of said conviction. Writs of error to take the case to the Circuit Court of Appeals for the Seventh Circuit have been allowed. Bail granted. T. J. Rowe, Henry Rowe, William Baer, and Charles A. Houts, all of St. Louis, Mo., Thomas Pogue, of Cincinnati, Ohio, Moses B. Lairy, of Indianapolis, Ind., A. Julius Frieberg, of Cincinnati, Ohio, and Levi Cooke, of Washington, D. C., for petition ers. Albert Ward, U. S. Atty., of Peru, Ind., and Howard T. Jones and Mahlon D. Kiefer, Sp. Asst. Attys. Gen., for the United States. BUTLER, Circuit Justice. In the matter of the petitions of Harry Levin and nine other defendants to be admitted to bail. February 3, 1926, there was presented to me, as Circuit Justice of the Seventh circuit, the petitions for Harry Levin, Morris Multin, Michael Whalen, Daniel O'Neil, Robert E. Walker, John Connors, Anthony Foley, Edward J. O'Hare, George R. Landon, and William Lucking, to be admitted to bail. Their respective attorneys, T. J. Rowe, Esq., Henry Rowe, Esq., William Baer, Esq., Charles A. Houts, Esq., Thomas Pogue, Esq., Moses B. Lairy, Esq., A. Julius Frieberg, Esq., and Levi Cooke, Esq., appeared in support of the petition. Notice having been given, Albert Ward, Esq., United States attorney for the district of Indiana, and Howard T.. Jones, and Mahlon D. Kiefer, Esq., special assistants to the Attorney General, appeared in opposition. October 31, 1925, in the United States District Court for the District of Indiana, an indictment was returned against thirtynine persons, including the petitioners. It charged that the defendants conspired with each other and with divers other persons, whose names were unknown, to violate the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 101384 et seq.) and particularly section 3 of title 2 thereof (section 101382aa, Comp. St. Ann. Supp. 1923). Overt acts were alleged to have been committed in Ohio, Indiana, and Missouri. On the return of the indictment, petitioners appeared and were admitted to bail. The trial commenced on December 14, 1925, and ended on the 18th day of that month. Petitioners were found guilty. After the verdict, they were allowed to remain at large on bail until December 30, 1925. On that day, they made motions for a new trial and in arrest of judgment. The motions were denied, and they were sentenced to the penitentiary at Leavenworth, and to pay fines, as follows: Terms of Imprisonment. Fine. 2 years................ $5,000 2 years................ Name Edward J. O'Hare..... 5,000 5,000 .. 2 years.......... 15 months.......... 500 1,000 1,000 1,500 500 ...15 months.. ...15 months..... 15 months.. 1 year and 1 day.. 1 year and 1 day.. 2,500 William Lucking............ 1 year and 1 day.. 2,500 On the same day, in order to take the case to the Circuit Court of Appeals for review, petitioners filed assignments of errors and petitions for writs of error. The writs were allowed, and citations were issued and served. Thereupon, petitioners applied to the District Court for bail pending a determination of the case in the Circuit Court of Appeals. The application was denied. In execution of the judgment, petitioners were committed to the penitentiary, and, pursuant to the sentences imposed, they are now there imprisoned. Petitioners insist that, by the proceedings after the verdict, the judgments were superseded, and that, as a matter of legal right, each of them was entitled to an order of supersedeas and also entitled to be admitted to bail. They state that their assignments of errors are made in good faith and upon assurance of counsel that they are well founded in law. Applicants challenge the jurisdiction of the trial court, the competency of certain witnesses called by the government, the admissibility of some evidence introduced against them, and a part of the court's charge to the jury; and, in behalf of Landon and Lucking, it is earnestly claimed that, as a matter of law, the evidence was not sufficient to justify or sustain a verdict against them. Petitioners represent that they are proceeding with diligence to secure an early review of the case, and they say that they did not delay the trial; that, being on bail, they attended the trial as required, and made no attempt to escape or to evade any order of the court after conviction; that each of them has a fixed place of abode, and has been engaged in business in St. Louis; that none of them has ever been a fugitive from justice; and that each is able to give a bond in such reasonable amount as may be required. They aver, on information and belief, that it will require approximately a year to obtain decision in the Circuit Court of Appeals, and that, if bail is denied, the petitioner O'Hare, sentenced for one year and a day-deducting the allowance for good behavior-will have served his term before his writ of error can be determined, that the petitioners under sentence of 15 months will have served substantially all their time, and that those under sentence of 2 years will have served two-thirds of their sentences before such determination. At the hearing, February 3, on this application, oral objections were made on behalf of the United States; and the United States attorney stated that, after denial of bail by the District Court, the petitioners on the next day, December 31, 1925, applied to the Circuit Court of Appeals to be admitted to bail, and that the application was denied. Time not to exceed 10 days was granted to enable him to present a copy of the record and papers in that court, together with a transcript of the minutes, if any were taken, of the hearing there had. On February 13, the United States attorneys presented written objections, in substance, as follows: (1) The granting of bail is addressed to the discretion of the trial judge; (2) the application for bail was denied by the trial judge and later by two Circuit Judges; (3) the petitioners have not shown that the District Judge or Circuit Judges abused their discretion; (4) in the absence of a transcript or bill of exceptions, the discretion of the District Judge and Circuit Judges cannot be reviewed; (5) after conviction, every presumption is against the defendants, and decisions of the District Court upon discretionary matters should not be interfered with; (6) the enforcement of the criminal law demands that bail pending appeal should be denied, where it is apparent to the trial court that conviction is proper, and appeal is prosecuted, not with the |