tI. THE TIVERTON.
dissolved, which is supposed to have the therapeutic effect attributed to the preparation. In describing this medicine, therefore, it was not essential to mention the base of the phosphate, for that is not important, but the substantially important description was given when it was stated to be a liquid acid phosphate. It seems to me, therefore. tbat in view of the statements contained in the original registration of the trade-mark and in patent No. 75,732, the complainant can hardly be heard to say that the words "acid phosphate" were then regarded as arbitrary and meaningless, and notns intentionally descriptive of what was considered to be the essential characterh;tics of the preparation. While a court of equity should regard with disfavor, and seek to remedy, invasions of proper tracie-marks, and to rebuke all unfair dealing by which the goodwill earned by one trader is unlawfully pirated by another, care must be exercised that protection is not granted to the appropriation of descriptive names in such manner that a perpetual monopoly is created in the article described. in favor of those who have no exclusive right to manufacture it. Canal Co. v. Clark, 13 Wall. 311. The counsel for defendants have also submitted an argument based upon the right, after a patent has expired, which anyone has, to use the name which the inventor has given to a new patented article, and by which it has become generally known. Complainant, however, insists that the defense is not raised by the answer, and that there is no testimony to show that complainant's preparation was made under the patent No. 75,272, granted to Horsford. 1 have not found it necessary to consider or pass upon this question, resting my decision upon the inherent objection to the words themselves, which prevents their lawful appropriation as a trade-mark. There being no deceptive similarity in defendants' labels and packages, and nothing complained of except the use of the words" acid phosphate." in my judgment, the bill must be dismissed.
DEVINE tI. THE
(DiBtrict Court, E. D. New York.
ADMIRALTY-I'RACTICE-TRIAL-NON-PRODUCTION OF EVIDENCE.
Claimant laying stress upon the presumption arising from the fact that the hatch·cover; which libelant asserted had broken under his weight, and which the proofs showed was in his possession, had not been produced on the trial, it was held, that the case should be kept lIpen. with liberty to libelant to producein court the hatch-cover in question. and with liberty to both sides to take further evidence regarding the same.
In ,A.dmiralty. Noah Tebbetts, for libelant.
lReported by Edward G. Benedict, Esq., of the New York bar.
Batlet, Stillman &: Hubbard, for claimant.
BENEDICT,J. On reading the briefs presented in this case, I observe that great stress is laid by the claimant upon the non-production by the libelant of the hatch-cover, which the libelant asserts broke under his weight, and which the proofs show to be in his custody, or under his control. If Diy recollection serves me, the production of the hatch-cover was tendered by the libelant at the trial; and it seems to me more conducive to justice to have it produced, instead of leaving the case to be decided upon the assertion of the libelant that the hatch-cover broke under his weight, on the one hand, and the presumption that if produced it would show the contrary, on the other. This cas.e is held open, with leave to the libelant to produce the hatch-cover in question, and with liberty to both sides to present any evidence same 88 they may be advised.
CoMPAGNIE GENERALE TRANSATLANTIQUE.·
District OO'U'ft, E. D. N6'IIJ York.
June 5; 1888.)
DEPOSITIONS-FOREIGN WITNESS-INTJIlBPRETJIlR-,DuTY OF STENOGRAPHEll.
Witnesses for respondent were being examined an interpreter, and, a difference arising as to the accuracy of the translation, respondent's .proctor announced that the answers would be written down as translated by him, and the stenographer, on being appealed to by libelant's proctor, an· nounced that he would do as respondent's vroctor directed. .Libelant's proc· tor thereupon withdrew, and the examinatIOn was completed in his absence. On motioll to sJ.lppress the depositions, held, that libelant's proctor was jus· tified in ",ithdrawing, the motiOn shOUld be granted, even though it appeared that the depositIOns were not eventually taken in the manner com· ,. . plained of by libelant's proctor.
In Admiralty. On motion to suppress depositions taken. Biddle &: Ward, for libelant. Coudert Br08., for respondent.
BENEDICT, J. This is a motion to suppress certain depositions. It is made on behalf of the libelant. There is a difficulty with the motion, arising out of the fact that the depo8'itions complained pi have not been filed, and that they are not mentioned with particularity. The depositions complained of were taken under these circumstances: Notice of taking of certain witnesses was given, and the proctors on both the sides attended, and the taking of the depositions commenced. The witnesses were unacquainted with the JJ;nglish language, and were examined through an interpreter. A difference seems to have arisen as to the accuracy of the translations made, and the proctor for the claimant an1 Reported
by Edward G. Benediot, Esq., of the New York bar·.