and this suit-was not commenoed until December 11,1886; so that mOTe than two years had passed after thj:lsetax deedEi were made, and after a right of action to have theml'emoved.as clouds ul?pn the complainant's accrued to the complainant; and it cannot title, if they were cloqds, be allowed, I think, that this complainant shall be permitted to lie still, by him in his and let tax titles or other adverse titles to representative capacity accrue upon such property, and come into court, and seek relief by a bilUn equity after the, two years which the law allows hi)ll, have expired. The plea is therefore held to be a good defense to the cause of action set out in the bill.
(Oircuit Oourt. N: D. N61JJ York. April 1,188'1.1 ·
Ch$rges of irregular 'and illegal' conduct OntheP$rt of a circuit court commissioner,in conspiring with others to manufacture business for the purpose 'of extprting, fees from the government, such. as'institutingprosecutions,for frivolous offenses, procuring complaints to be made :with knowledge of the inadequacy of the proof, etc.· held not sustained by the' evidence adduced. in a proceeding looking to the removal of the commissioner from office.
The practice of encourltging prosecutions set On foot by "professional witnesses...· who spend a large portion of their time in ferreting out trivial and technical infractions of the revenue laws. Bolelyforthepurpose of obta.i:ning fees as witnesses, strongly condemned; the court intimating that its continu' ance will'be'deemed cause for removal.
SAHE-JUDICtAL AND ADHmISTRATIVE OFFICERS.
If it be necessary to employ spies and inforjDers to bring offenders to justice, it should be done by the administrative not the judicial officers of the government. '
An examiner of the department of justice in October, 1886, made, a, report charging William W,Gilbert, a oithe court, residing at Rochester, New York, with irregular and illegal conduct. 'rhis report, with the accompanying affidavits, was transmitted by the attorney to the court for such action as was deemed. ad visable. 'rhe court thereupon made an order, based upOll these ,papers, requiring the commissioner to show cause at the January term why he should not be removed from office. A partial hearing waathen had, and an adjournment was taken to enable the respondent to produce further evidence, and to give the United States attorney, who acted by request of the court, an opportunity to make a more extended examination of the contained in the rEjport. The matter came oufor final heariiig at the Maroh term, 1887. W. F. Cogwell, for respondent. D. N.Loclwood, U. S. Atty., opposed., andCoxE, JJ. ' Before W., . ... :
Jl'EDliaiii. 'REPOR:t£R. PER CURIAM. W ebave the report oftI1e:examiner with ihe accomt>ariying affidavits, and and other d?c;timentssubmitted by the respondent, 'and' have conclusion. that all, charges of conspiracy and of illegal a.nd' dishonest, conduct on the part of the respondent 'are ,unsupported by the, proof. The United States atto.1'ney in open court that, hi his opinion, the respondent had kept witbiri .the ,strict letter of1thelaw, and that, after a careful investigation; he could produce no proOfcbl'lnecting the respondent with any The attorney general, in, a comrnuniqaimmoral or corrupt tion tothe;iespondent, eXcUIIlatt!s: him from the charge of conspiring with others to manufacture business for the purpose ofextorting money from the government. record discloses some cases of hardship,-prosecutions for frivolous offenses which should never have been commenced; but the number, considering the amount of business transacted, is not large; 'and the suggestion that the respondent was instrumental in procuring the complaints to be made with a knowledge of the inadequacy of the proof"i!Mounded entirely upon conjecture. The respondent is a respectable citizen of Rochester, where he has sided since he ,left the army, at' close of the war of the Rebellion I and the reputation which he has built up through years of patient and painstakingent,leaVOl' ought not to assa.iled upon in ere'suspicion We arepleased,to)aythat we do not'find any charge affeCting his integrity sustained by the proof. The most serious criticism made against the administration 9,fhis office is, in our judgment, that he received the evi\vliospent a"largaportion of.their time in ferreting dence out trivial,aud technical infractions of the revenue laws for the sole purpose of obtaining, the fees of witnesses. In the great majority of revenue "professional wit'nesses" appear., cases presented to the That they 6mblll'ked in the business solely for the money they could make is not denied, and their names appear with painful 'regularity upon the r(ll1 of witnesses. It is true that this practice is not at all corifined be enforced if none to Rochester. , It is true that the revenue laws but the,Itlost members dtsociety can to the witness stand.' It, is true, that if 'prosecution of becomes lax the. in revenue many times the amount now expended in fees. All thisis true, and yetwe are9fthe opinion that thepracticeof tolerating the co-operation of thisclliSS Of informers, in the mannerstate,d, the a.dministration of justice in ,the is demoral,izing, and tends federal cotir.ts in.to disrepute. If'it benecessatyto employ spies andJI?-formers to offenders to justice, it illiould be done by officers.' " . " ,, ,.+.here ,is, rootp' Jor" difference()f opipion upon, tpis, subject, and we accept the the respondent that he thought it his duty'to"acfupon all caseidvhich heconsideted meri'torious,"no matter by whom presented, or how supported.'" ,Bpt; entertaihi.ngthe views we do upon this subject, we deem it proper t9 say that lie'reafter we shall regard it as a sufficient cause for ,removal if'a q(jmn,.lissioner abets or encourages the prosecution of violations of the inilirtlal revenue la'ws
set in motion by "professional witnesses." If theqt!icers of the revenue, or thj'llaw officers of the government, do not deem the cases of sufficient instit1,1te and, follow up prosecutions, commissioners, who are officers, ,and duty it is,to hear cases "\Vhen,they are should not, directly or indirectly, instigate or countenanpe others in bringing criminal proceedings. Much less should they permit such cases to' be brought by a class of men who Mtmerely from mercenary motives, and cannot bE} expected to exercisejudgment or good sense in discriminating betweenl'e;aland technical violations of the law. The orde;r to show cause is discharged.
,_ .. , ,
((JVrcuit Otwrrt. N.D,. Ohio, B. D. April
,_ I .'
_. ", .'
1,TltM>E:.MAIrK':'"WHAT IT :MAVCoVlllR.
of eh.ewing.gum canno.t Ob.tai1l8.trad.e.m.ark forth.etor!l1 . 9f in whic;:h the guxp. is maje. nor for ,the peculiar shape and , .ration of the boxes 1U which It ill put upon tlie market, nor for the particular manner in which the gum. is arranged in the boxell. ., " ., ' . . .,'. " of gum filed thllir declaration to fo\low,iP:g effe'ct: "Our trade-mark consists in the word' Bappots.'Thlll has 'genetallybeen arranged * * * in ornamental block letters, 'printed· in fli,nkj,gradually increasing in depth. of color from letter ' B' to inclined line. and in connection the word 'Tolu/Abov,a 'iigllt-l\.and part of the wotds '-Sappota Tolu ' III the word'AdaIils;' and beloW fthefuft-hand part are the words 'Chewing Gum;' but other forms .of, type JJJl!oY b,ellm.P.lo y e<l, or,itm. YJ?\l ,diff. ..._ I pr colOJ,"ed, 0.'r'the. ",ords ''f0lu,' ',Adams,' and' Che'Ymg Gum' may be omItted or changed at pleasure, wttho:ut altering the character of our trade-mark, the essential featttre,of,wJuch IS the,wora 'Bappota.'» Held, that the tradEl-mark , to the name adopted, with the form and color ,of the letters ul\ed.in the , 'label on the inllide of the lid of the paper box;, and thBt it (:ould not be'broadened; for the purposes of 'a suit for infringement, 80,as to eoverthe whole box, with .1'11 its ornaments and forms of putting up the gum; coJors,usedin such d.ecorationll. S. BAMm-:-NA1IES-INFRINGEMENT. 'fbe vending of a variety of chewing gum under the name of "Heisel'a Elas- . TOlU tic Tolu» is not an infringement of the trade-mark" Adams' CJ1ewin,g .Gum,» the similarity and resemblance between the two llamas not being such as to deceive a purchaser in buying the first for the second. .
' " , " ; I
In;Chancery. Oharla P. Jacobs, for complainants. E. SdWIYf8 and E. S.Blandin, for respondents.
WEJ,KEB, J. The complainants allege thataboutthe year1884, while in the city of New York, they commenced the preparadoing tion, ,manufacture; and sale ofa certain form of.chewinggumi and that which was wholly they inVented and composed therefor original with themselves,viz., "SappotaTo11,l," and describe, how they P1,lt up the gum, and the boxes in which with letters and .and ,borders upon, boxesj pictorial ornaments, with.