UNITED STATES ".ROUTE.
(Distriot '(}owrt,E. D. Mi88QU'I'i,.E.D·. December 20,1887.)
On indictment under Rev. St. U. S. § 5438. making it a criminal offense to make a claim upon the government fo,rthe payment of a demand known to be 'false,t1.ctitjous. or fraudulent. the· defendant WRscharged with attempting to obtail:\, P/l,Y and bounty by falsely_representing herself to be the widow of a soldier, killed. during thjl war. Held, that to warrant conviction it must appear that defendant Was not the widow of such soldier, and· that she made her demand knowing this to be the fact; but otherwise, if the claim, though groundless,and without merit, was made in good faith, and in the belief that she had 'been the wife of the soldier and was his widow. and entitled to the pay and bounty due him at his death. 2. MARlUAGE'"1'7B:lllTWJClIlN COLORED PERSONS-PROOF U. S. §I 5488. On indictment under Rev. St. U.S.. §I 5438, defendant was charge(l with falsely representing herself to be the widow of a,deceased c'olored soldier, in order to obtain from the the pay and bounty due him at his death. Held, that an agreement to become husband and wife; if immediatelyfollowed by cohabitation as such for. a considerable period, constitute.s 0. valid marnage in Missoud, and' that the validity of such marria£es, especially among colored people, is recognized by section 4705, Rev. St. U. S. ' "
CLAJMS AGAINST UNITED
Indictment for Preferring False, Fictitious, or FtaudulentClaim against the :GQvernment. Thoma8P. BashaW, U. S.Dist. Atty., for plaintiff. " J. M. J4qi.a and M.G. Reynolds, for defendant. . ,
(charging jury.) The indictment which youbave been is framed ,under a statute of the United States, which provides, in substance,that "every person who makes or causes to be made any claim upon or against the government oftheUnited States, * * * knowing such claim to be false, fictitious, or f\audulent, * * * shall be im,. prisoned at hard labor not less than one nor more than five years, or fined, not less than one thousand nor more than five thousand dollars." Rev.: St. U. S. § 5438. Underthetestimonyin the case, there is no doubt that the defendant made a demand or claim upon the government of the United States; such demand being for pay and bounty which she claimed to be due to her as the widow of a colored soldier by the name of Hiram Route, said to have been killed during the war, at Petersburg, Virginia. Nothing further need be said on that branch of the case. I accordingly your attention. at once to the important questions observe from the statute !Which Ihavel ' for your oonsideration. You in substance, .quoted, that the offense consists in makings claim 00' the governmentthlit is known to bemthcrJalBe, fictitious, or fraudulent. It is no offense unqer' the statute to, make ,a Clairri u pan the government for thepaymentofa demand that is or without merit, unles,S" the person who makes it understands at the time it is made that it is> a false" fictitious, or fraudulent demand, and therefore intends to defraud the government. In the present case, counsel for the gov.ernment contend that the defendant, Chaney Route, knew full well that she had never
UNITED STATES tI. ROUTE.
been·'the wife of Hiram Route, and c\:lnsequently was not his widow; nevertheless, that she falsely pretended to have once been his wife and to be his widow, and in that character claimed pay and bounty from the government that was due to Hiram Route at his death, to which, as she knew; she was not legally entitled. If the evidence in the case satisfies you beyond any reasonable doubt that such is the fact,-that is to say, if it satisfies you that she knew she had never been his wife, and was not his widow, and was not entitled to the pay and bounty in question, and that she made the claim in question, which has been produced, for pay and bounty,-then she is guilty as charged in the indictment, and you should so find. If she made a claim. on the government for pay and bounty as the widow of Hiram Route. knowing that she was not his widow. then the claim made was both false and' fraudulent within the meaning of the statute. The main question in this case which yoU must determine is whether the defendant was the widow of Hiram Route. If she was the wife of Hiram Route his life-time, and remained his wife until his death, then the government has no case, and you should acquit the defendant. the sUbject of the alleged marriage, I will say that in this state, 'Yhere theinamage is said to ,have taken place, and at the time it is alleged to have taken place, no ceremony was necessary, either before a minister or a civil magistrate, to constitute a valid marriage. If two persons of age to make contract mutually agreed to become ,husband -and wife atthe'tinie of the 8.Kreement, and not merely atsomefuture day, and thereafter cohabited together as husband and wife, such agreement andcohabitlttion constituted a valid martiage. ',Such is the law in the state of Missouri, and in many other states. Dgerv. Brannock, 66,:M(). 391-423. The rule, as last stated, is especially applicable to a marriage 'betwaen,:slaves,-such a, marriage asil!rinvolved in the present case. Any sort of ceremony gone through with by such people, such as" was -customary among slaves, if intended as a marriage and followed by cohabitation,Bhouldbe esteemed a valid marriage. By section 4705, Rev. St. U. S., congress has recognized the rule of law with reference to marriages ,as herein stated by declaring what proof shall be deemed necessary to the fact of marriage as between' colored people. So that, if you -believe from the evidence that the defendant and Hiram Route before his death mutually agreed to become husband and wife, and thereupon cohabited together as such for any considerable period of time, and that ehildren were bomof such alliance, then you should acquit the defendant. Furthermore, gentlemen, I will say that, although you may be of the opinion that no marriage between the parties has been shown that will satisfy the rule before stated; yet, if you believe that this defendant, (who seems to be an ignorant colored woman,) by reason of any cohabitation or alliance between her and Hiram Route, in good faithsupposed that she had been the wife of Hiram and was his widow, and was entitled to the pay anp ,bounty due to him at his death, then you ought to acquit her. A person is, of course l presumed to know the law,and is therefore presumed to know wHether a particular,act or series of acts a
valid marriage; but persons may make mistakes as to the law, and, in 8 case of this sort, if defendant did make a mistake as to the legal relation existing between herself and Hiram Route, and made the claim in question honestly, then the requisite criminal intent is wanting to support the offense laid in this indictment, and yOlt should acquit on that ground. You can take the case.
MOXIE NERVE FOOD Co. v. BEACH :et al. SAME v. TUTTLE et al. SAME V. FAIRBANKS et aL SAME v. SMITH, (two caees.) SAME V. CLARK 6t ale SAME V. HARLAN et al; SAME v. DUNN et al.
(Circuit Court, Mq88achu8eti8.
, On motiQn for a preliminary injunction to restrain defendants from an 1m, itation of plaintiff's labels, bottles, and wrappers, held, that where it. appears that the imitation of the. labels, ,bottles,. and wrappers, toget1;ler with the use of the word "Nerve Food." as used by plaintiff, was such an imitation as. to deceive the public as to the identity oithe contents of the bottles, an injunction should Issue.
In Equity. On motion for a preliminary injunction. George F. Richard8CYn,M.' F. Dickin8CYn, and H. R. Bailey, for complainants. . Cha1"les Robin8CYn, Jr., Rodney.Lund, A. E. Pillsbury. J.H. Lange, and H. F. Naphen, for defendants. COLT, J. The above cases were heard together on motions ,for II preliminary injunction. rfhe complainant manufactures and sells a beverage called "Moxie Nerve Food," and it seeks to these defendants from the use of its trade-mark and from an imitation of its labels, bottles, and wrappers. The registered trade-mark of complainant is .simply the word "Moxie.'? The complainant insists, however, that it is als() entitled to a trade-mark in the words "Nerve Food." It appears from the evidence that these words had been previously applied in several cases to medicinal compounds, but never before toa beverage. All of the defendants use the term "Nerve Food" on their labels. In cases Nos. 2,394,2,395, and 2,40lthe defendants call their article the "StandardNerve Food." In the other cases the defendants term it "Imperial," or "East India," or "Excelsior," or "Noxie Nerve Food." The evidence shows that these defendants sell their preparations for the genuine Moxie Nerve Food made by the complainant. In the labels, bottles,and wrap·pel'l' there is an evident attempt on the part of the defendants to imitate those used by the complainant. Some of the labels are closer imitations than others. In two cases the defendants go 80 far as to adopt the name "Noxie" in plaeeof"Moxie." In several cases Appollinaris bottles are used in place of the Moxie champagne bottles. But it does not seem to