Volume 296 — Federal Reporter

Suit in equity by Thomas R. Jones against Benjamin Kowaloff, trading as B. Kowaloff & Co. From a final decree dismissing the complaint on the ground of noninfringement of the claims of plaintiff’s patent, No. 860,097, issued July 16, 1907, plaintiff appeals.

<p>1. Trade-marks and trade-names and unfair competition <§=60 — Similarity of labels held insufficient to constitute infringement of trade-mark.</p> <p>Where labels on plaintiff’s and defendant’s tobacco were slightly similar in color of background and in the use of the words “Bed Leaf,” but plaintiff’s label bore the impress of its registered trade-mark and had a large square of double red lines, in which was a brown emblem of a leaf crossed by a twist of tobacco,, while defendant’s contained a square of single black lines with a picture of one of its officials, held, that there was not sufficient similarity to constitute infringement of plaintiff’s trade-mark.</p> <p>2. Trade-marks and trade-names and unfair competition <@=l — How exclusive use of symbol of trade-mark acquired.</p> <p>To acquire the right to the exclusive use of a name, device, or symbol as a trade-mark, it must have been primarily adopted for tbe purpose of identifying the origin or ownership of the article to which it is attached, or point distinctively, either by. itself or by association, to tbe origin, manufacture, or ownership,, of the article on which >it is stamped.</p> <p>3. Trade-marks and trade-names and unfair competition <§=3(l), 9 — Words may by use acquire secondary meaning, and become entitled to protection as trade-mark.</p> <p>The name of a locality, a generic name, or a name merely descriptive of an article of trade, its qualities, ingredients, or characteristics, cannot be protected as a legal trade-mark; but words which are not in themselves a valid trade-mark may, by association with goods of a particular manufacturer, acquire a secondary significance, denoting a product of the manufacturer, and thus be employed as a trade-mark, and as such be entitled to protection.</p> <p>4. Trade-marks and trade-names and unfair competition <§=3(5) — Name “Red Leaf,” applied to tobacco, held not entitled to protection as trade-mark.</p> <p>The words “Bed Leaf,” though not the name of a species of tobacco, represent a grade or quality especially desirable for smoking and chewing purposes, and do not, by themselves or by association with the rest of the trade-mark, point distinctively to the origin or ownership of a 'brand of tobacco, and cannot be protected as a trade-mark.</p> <p>5. Trade-marks and trade-names and unfair competition <§=93(3) — Evidence held insufficient to sustain charge of unfair competition.</p> <p>In a suit to restrain imitation of labels and wrappers on tobacco, evidence held insufficient to sustain the charge of unfair competition.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the American Brake Shoe & Foundry Company and the St. Louis Car Company against the Pittsburgh Railways Company. On petition of' defendant for discharge of receivers and return of its property.</p>

<p>In Equitjh Suit by G. H. Fenstemacher against the Pennsylvania Railroad Company and others. On motion to dismiss.</p>

<p>In Equity. Bill by C. H. Fenstemacher against the Pennsylvania Railroad Company and others. On motions under equity rule 29e</p>

<p>S. Bankruptcy @=5413(3) — Affidavit annexed to objections to discharge held insufficient. /</p> <p>An affidavit annexed to objections to discharge of bankrupt, made by W. S. C. for O. W., objecting creditor, was insufficient, where W. S. C. was a stranger to the record, and not an attorney at lavs?, and it did not appear by the affidavit that he had a right to represent O. W., or had knowledge or means of knowledge relative to the objections.</p> <p>a. Bankruptcy @=3413(3) — Attorney at lav/ or in fact may attest objections to discharge only when exceptional circumstances stated.</p> <p>An attorney at law or in fact may attest objections to a discharge of the bankrupt only under exceptional circumstances, and those circumstances should be set forth in the affidavit.</p> <p><®rs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Habeas corpus <@=II3(I) — That wrong method of review was sought held insufficient to deny relief.</p> <p>That a review of a habeas corpus proceeding was sought by a writ of error, instead of by an appeal, the proper method, held of insufficient moment to deny relief, where otherwise it should be granted, in view of Act Sept. 6, 1916. x</p> <p>2. Criminal law <©=977(3) — Postponing sentencing within District Court’s discretion.</p> <p>Postponing the sentencing of one pleading guilty to a charge of violating the National Prohibition Act (Comp. St.. Ann. Supp. 1923, § 1013SVi et seq.), to the next term of court held within District Court’s discretion, if what was done was otherwise free from objection.</p> <p>3. Criminal law <©=977(3), 1001 — District Courts’ powers as to extension of rendition of judgments and execution of sentences.</p> <p>While the District Courts are without power to extend the rendition of their judgments and the execution of their sentences with the view of paroling or pardoning accused, they may do so where it becomes inci- ' dentally necessary in the administration of justice.</p> <p>4. Criminal law <©=977(3) — After rendition of judgment on first count court cannot render judgment on second count.</p> <p>The District Court, after the rendition of its judgment under the first count of the information, has no power to render a second judgment at a later term against the accused under the second count of the same indictment, notwithstanding that a continuance was had to a later date . with the view of considering the action to be taken under the second count.</p> <p><g=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Criminal law <§=>977(3) — Postponing sentencing to later day of same term within court's discretion.</p> <p>Postponing the sentencing of one pleading guilty to a charge of violating the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138% et seq.) to a later day of the term at which the plea of guilty was entered held within District Court’s discretion, if what was done was otherwise free from objection.</p> <p>2. Criminal law <§=>977(3) — After rendition of judgment on first count, court cannot render judgment on second count.</p> <p>The District Court, after the rendition of its judgment under the first count of the information, has no power to render a second judgment against the accused at a later term under the second count of the same indictment.</p> <p><§=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Trial <§= 139(1)— Directed verdict for defendant proper only whero plaintiff, as matter of law, not entitled to verdict.</p> <p>A peremptory instruction to return verdict for defendant is proper only where, admitting the truth of the evidence for plaintiff, as a matter of law, plaintiff could not have a verdict. f</p> <p>2. Master and servant <§=>286(13) — Negligence held for jury on evidence as to derailing of lever car.</p> <p>In an action for injuries to an employee caused by the derailing of a lever car on which he was going to work, evidence that the car was derailed because of a bent axle held sufficient to warrant denying defendant’s motion for a peremptory instruction.</p> <p>3. Negligence <§=>130(1) — Evidence of conditions after accident admissible.</p> <p>Evidence of conditions subsequent to the accident, as bearing upon its cause, is admissible where the condition has not changed; but the evidence should relate to a time so close to the accident that it is apparent that the condition has not changed.</p> <p>4. Master and servant <§=270 (6) — Evidence of conditions after accident held ad. missible to show cause.</p> <p>In an employee’s action for injuries caused by the derailing of a lever car on which he was going to work, testimony that when witness saw the car in employer’s custody two days after the accident it had a bent axle held properly admitted to show the cause of the accident; there being nothing to suggest any change in its condition since the accident.</p> <p>(g^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Bankruptcy <©==>407(1 > — Judgment based on bankrupt’s negligence held no bar to his discharge.</p> <p>Under Bankruptcy Act, § 14 (Comp. St. § 9598), judgment against bankrupt, based on injuries caused by bis negligent operation of an automobile, does not bar bankrupt’s discharge.</p> <p>2. Bankruptcy <®=407(l) — Effect of discharge not in issue on application for discharge.</p> <p>The right of a bankrupt to discharge under Bankruptcy Act, § 14 (Comp. St. § 9598), and its effect under section 17 (Comp. St. § 9601), are -wholly distinct propositions, and the latter question cannot properly arise or be considered in determining the right to discharge, but should be determined when it is interposed as a defense to the enforcement of a claim.</p> <p>@=For other oases see same topic & KEY-NUMBER in -all Key-Numbered Digests & Indexes-</p>

<p>1. United States <§=>135 — United States indispensable party to suit to recover property transferred to it.</p> <p>The United States is an indispensable party to minority stockholders' suit to recover corporate property which had been transferred to it.</p> <p>2. United States <§=>125 — Cannot ¡se sued without its consent.</p> <p>Without its consent the United States cannot he sued by minority stockholders to recover corporate property transferred to it.</p> <p>3. Equity <§=>362 — Bill dismissed where indispensable party cannot be brought in.</p> <p>Where the real party in interest, an indispensable party, cannot be brought before the court, the bill must be dismissed.</p> <p>«gz^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p>

<p>1. Collision <§=82(2) — Ferryboat held in fault for collision in fog with lighter moored at end of pier.</p> <p>A ferryboat, making her regular trip across Delaware ^ river from Camden to Philadelphia in a dense fog, came into collision with a lighter moored at the end of a pier discharging cargo, with such force that but for the presence of the lighter she would have struck the_ pier. She had proceeded at half speed, or four miles an hour, until within about 150 feet from the pier end, and her reversal was then too late to prevent the collision. She also knew that the lighter had been at the end of the pier for some days and had not completed discharging. Held, that her speed under the circumstances was negligent and in violation of Inland Rules, arts. 16 and'29 (Comp. St. §§ 7889 and 7903), and that she was in fault for the collision.</p> <p>2. Collision <§=9 — Mot unlawful for lighter to lie at end of pier in Philadelphia.</p> <p>The custom of the Port of Philadelphia for small vessels to lie at the ends of the piers on some of which bitts are provided for mooring is not in violation of rule 20 of the Harbor Rules and Regulations for the Port of Philadelphia, providing that vessels lying in berths in positions where they extend beyond the line of the pier do so at their own risk and may be held responsible for any damage that may be caused by tbeir projection into the stream, which applies to vessels lying inside the dock.</p> <p>3. Collision <§=71 (3) — Position of lighter at end of pier held not a contributory fault to collision.</p> <p>That a lighter, when she was struck by a moving vessel, was lying at - the end of a pier discharging, where she did not extend near the sides of the pier so as to obstruct entrance to the ships, held not a fault contributing to the collision.</p> <p>4. Collision <§=8I — -Vessel lying at end of pier not required to sound fog signals.'</p> <p>A single small vessel, moored at the end of. a pier, where she did not obstruct entrance to the ships, held not required to give sound signals during a fog.</p> <p>g-,Pnr other cases see same topic & KEY-NUMBER In all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by William E. Murphy, receiver of the Carlsbad Eight & Power Company, against Cesarino A. Kerr.</p>

<p>International law <§=>10 — Courts cannot entertain unofficial suggestions on behalf of foreign government, which has severed diplomatic relations with the United States.</p> <p>When a foreign country has severed diplomatic relations with the United States, the intercourse thereafter to be carried on between the governments should be conducted exclusively through the State Department, in view of Rev. St. § 202 (Comp. St. § 300), and a court, which has arrested a vessel of such foreign government, cannot entertain unofficial suggestions made on behalf of such government by the recognized representative of another foreign power in charge of such government’s affairs in this country.</p> <p>©=>For other cases see same topic & KEY-NUMBER in all Key-Ndmbered Digests & Indexes</p>

<p>In Admiralty. Libel by Campbell & Stuart, Inc., against the steamship Gul Djemal, her engines, boilers, etc.</p>

<p>Habeas Corpus. Petition, for writ in behalf of Szejndla Gorelick and children.</p>

<p>In Error to the District Court of the United States for the Northern District of Alabama; William J. Grubb, Judge.</p> <p>Action by W. W. Logan, doing business as the Merl Lumber Company, against the Big Sandy Lumber Company. Judgment for defendant, and plaintiff brings error.</p>

At Law. Actions by Harry J. Makiver, administrator pendente l'ite of the estate of Oscar W. R. Rosier, deceased, against the Missouri State Life Insurance Company, and against the Equitable Life Assurance Society of the United States. On motions by defendants for new trial.

<p>1. Patents <§=>328 — 968,576, claims 3, 4, 5, for improvement in open vacuum cash carrier system, held not infringed.</p> <p>Libby patent No. 968,576, claims 3, 4, 5, for improvement in valve-closing mechanism in open vacuum cash carrier system, held not infringed.</p> <p>2. Patents <©=>328 — 968,576, claims I and 2, for valve mechanism of open vacuum cash carrier system, held valid and infringed.</p> <p>Libby patent No. 968,576, claims 1 and 2, for valve mechanism in open vacuum cash carrier systems preventing the needless suction of air when tube is not in use, held valid and infringed.</p> <p>^r»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Banks and banking <§= 148(1) — Drawee of cheek or draft charged with know!» edge of drawer’s signature.</p> <p>As a general rule a bank upon which a check is drawn is charged with knowledge of the drawer’s signature, and must bear any loss resulting from failure to detect a forgery until after payment has been made.</p> <p>2. Banks and banking <§=>174 — Bank receiving check for collection not held to high degree of care as to genuineness.</p> <p>A bank receiving a check for collection is not held to the same degree of care to ascertain its genuineness as one which discounts and pays the check in the first instance before it has been forwarded to the drawee.</p> <p>3. Banks and banking <§=174 — Collecting bank held not liable to drawee of forged checks.</p> <p>Checks purporting to .be drawn on plaintiffs, a banking firm, in New York, by a Mexican correspondent, were accepted for collection by defendant bank in Texas on indorsement of the supposed payee, indorsed by it for collection, and forwarded to its New York correspondent, and were paid by plaintiffs on presentation. Defendant paid out no money on the checks until advised of this .payment by plaintiffs, after which it paid over the proceeds. Held that, in the absence of proof of negligence by defendant, it was not liable to plaintiffs on their claim that the checks were forgeries.</p> <p>4. Banks and banking <§=174- — Following genera! custom among banks tends to negative negligence of collecting bank.</p> <p>While a negligent custom is not a defense, following a general custom among banks near the Mexican border to accept for collection checks or New York exchange payable to strangers upon their identification by Mexican passports is presumably the exercise of due care.</p> <p><©ss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>I.Shipping @=»I32(1) — Libel held not iaased on stale claim.</p> <p>Where a cargo was damaged during a voyage from December, 1915, to April, 1916, and from June, 1916, until March, 1917, owner of the cargo made repeated attempts by correspondence with agents of vessel to settle the claim, and in June, 1917, the vessel was sold, and after that date owner had difficulty in locating it, held, that a libel filed in June, 1917, was not based on a stale claim.</p> <p><§r=>For other cases see same topic & KEY-NUMBEK in ail Key-Numbered Digests & Indexes</p> <p>2. Shipping <@=>132(4) — Owner has burden of proving seaworthiness of ship and’ that cargo was damaged by perils of sea.</p> <p>Burden is on owner to prove seaworthiness of a vessel, and that the damage to the cargo yras occasioned by perils of the sea, for which owner is not responsible.</p> <p>3. Shipping <@=>132(4) — Owner held not to sustain burden of proving ship was sea- . worthy.</p> <p>Owner held not to sustain the burden of proving that a ship whose cargo was damaged by sea water was seaworthy.</p> <p>^spFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Criminal law <S=>407(I) — Admission of statement of third person in presence of defendant held error.</p> <p>Admission of testimony of a witness to a statement of a third person in the presence of defendant held error, in the absence of evidence tending to show that defendant acquiesced in the statement, and particularly where the same witness testified that defendant denied its truth.</p> <p><©c»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by Hunt, Helm, Ferris & Co. against George A. Elbert and another.</p>

<p>In Admiralty. Libel by the Williams Steamship Company, Inc., against the McLeod Lumber Company. On exceptions to amended libel.</p> <p>An amended libel in personam is filed, alleging execution of a contract to transport 300,000 feet of lumber from Tacoma to New York City, to be loaded about June 2, 1923, and another contract to transport 121,000 feet of lumber from Tacoma to Portsmouth, Va., to be loaded about June 5th, both shipments to go on the same vessel. The contracts were executed April 9 and April 22, 1923, respectively. On or about May 30th, following, libelant advised respondent orally that the vessel would begin loading about June 12th, and no objection was made. On June 8th, following, libelant notified respondent that the vessel would load about June 18th, whereupon respondent advised libelant that, on account of the vessel’s failure to be ready to load at the time stated in the contract, respondent declined to use the space provided. The value of the space is sought to he recovered.</p>

<p>1. Constitutional law <§=>210, 252 — Corporations entitled to protection of due process and equal protection clauses.</p> <p>Though civil, religious, and educational corporations are not possessed of the rights of citizens under privileges and immunities clause of Const. Amend. 14, they cannot be deprived of their property without due process of law nor be denied the equal protection of the laws.</p> <p>2. Injunction <@=>16 — Violation of constitutional right enjoined, in absence of plain, speedy, and adequate remedy at law.</p> <p>Equity has jurisdiction to give relief against the violation or infringement of a constitutional right, privilege, or immunity, threatened or active, to the detriment or injury of a complainant, unless such party has a plain, speedy, and' adequate remedy at law.</p> <p>3. Injunction <@=>85(2) — State officers enjoined from enforcing state law contra- ' vening federal Constitution.</p> <p>Equity may, in proper cases, restrain state officers, clothed with authority for enforcing the laws, from the threatened enforcement of a state law which contravenes the federal Constitution, wherever it is essential in order .effectually to protect property rights and the rights of persons against injuries otherwise irremediable.</p> <p>4. Constitutional law <§=>42 — Complainant may insist that others on whom he is dependent for support and sustenance shall not be deprived of constitutional rights.</p> <p>A party, insisting that constitutional guaranties for his benefit are being violated, may also insist as an element of infringement of such guaranties, that others on whom he is dependent for support and sustenance of his lawful busiuess, shall not be deprived of their constitutional rights, privileges, and immunities.</p> <p><@zs>For other cases see same topic & KEY-NUMBER in all Key-Numhered Digests & Indexes</p> <p>5. Constitutional law @=3255, 274, 278(1) — State statute requiring children to attend public schools held violative of due process clause.</p> <p>Or. L. § 5259, as amended by Laws 1923, p. 9, requiring children between 8 and 16 years of age to attend public schools, held denial of the right of parochial and private schools to operate, and of the right of parents and guardians to send their children and wards to such schools as they may desire, contravening due process clause.</p> <p>6. Injunction @=>85(2) — Enforcement of unconstitutional act enjoined before act takes effect.</p> <p>Enforcement of Or. L. § 5259, as amended by Laws 1923, p. 9, requiring children of certain ages to attend public schools, void because violative of Const. Amend. 14, will be enjoined, though act will not take effect until more than two years in the future.</p> <p>7. Equity @=>46 — Rule as to “adequacy of remedy at lav/” to deprive equity of jurisdiction stated.</p> <p>The remedy at law, to deprive equity of jurisdiction, must not only be plain, speedy, and adequate, but must be as adequate, complete, practical, and efficient to meet the ends of justice as the remedy in equity.</p> <p>[Ed. Note. — For- other definitions, see Words and Phrases, First and Second Series, Adequate Remedy.]</p> <p>8. Constitutional law @=>67 — May amplify remedies and apply rules for advancement of justice.</p> <p>Courts may amplify remedies and apply rules and general principles for the advancement of substantial justice.</p> <p>9. injunction ©=>l —In use of writ, court must exercise sound and legal discretion.</p> <p>The court, in the use of the writ of injunction, must exercise a sound and legal discretion, regulated by analogy, and what would be manifestly just, in view of all the existing conditions.</p> <p>18. injunction @=>85(2)-=Party affected by unconstitutional act need not wait until step is taken affecting him injuriously before obtaining preventive relief.</p> <p>A party affected by an unconstitutional act need not wait until some step is taken under the act that would affect him injuriously, since one does not have to wait the consummation of threatened injury to obtain preventive relief.</p> <p>11. Schools and school districts @=3! 60 — Statute requiring children to attend publio schools held not a valid exercise of police power.</p> <p>Or. L. § 5259, as amended by Laws 1923, p. 9, requiring children of certain ages to attend public schools, held not valid as an exercise of the police power of the state.</p> <p>12. Constitutional lav/ @=381 — In exercise of police power, state may enact iav/s relating to safety, health, moráis, and general welfare of public.</p> <p>• The State in its sovereign capacity may, in the exercise of police powers, enact laws relating to the safety, health, morals, and general welfare of the public.</p> <p>13. Constitutional law @=>81 — Limitation to state’s exercise of police power stated.</p> <p>The state cannot exercise its police powers arbitrarily and despotically, nor unless there exists a reasonable relation between the character of the legislation and the policy to be subserved.</p> <p>¡4. Constitutional >law @=>45, 70(3) — Rule as to court’s review of acts enacted by state Legislature in exercise of police power stated.</p> <p>The state Legislature is not the final judge of limitations of the police power, but its enactment will be set aside when found to be an unwarranted, arbitrary interference with the constitutional right to carry on a lawful business or occupation, and to use and enjoy property; but the courts may not interfere merely because they differ from the Legislature in its views of public policy, o.r propriety -of the legislation in question, unless the act is unmistakably and palpably in excess of legislative power.</p> <p>@=eFor other oases see same topic &. KEY -NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Libel by Stewart Carnal & Co., Limited, against the schooner Rosalie Hull.</p>