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8 1. Marks and names subjects of ownership.

Although the word "sterling" is ordinarily descriptive of quality, and is
not popularly used in comection with ale, one who adopted it to identify
a particular manufacture of ale may be entitled to protection against its
use by another in such manner as to create confusion as to the origin or
identity of the two products.
-Worcester Brewing Corp. v. Rueter & Co., 157 Fed. 217...

84 C. C. A. 665
§ 2. Infringement and unfair competition.

Evidence considered, and held to establish the contention that the com-
plainant, which was the manufacturer and proprietor of a secret remedy
which it sold and used for the treatment and cure of the opium, liquor,
and tobacco habits, and which it claimed and represented to the public as
having as its chief and most valuable ingredient chloride of gold or
“double chloride of gold," was chargeable with fraudulent misrepresen-
tations, in that such remedy did not contain any gold or chloride of gold.
-Memphis Keeley Institute v. Leslie E. Keeley Co., 155 Fed. 961...

81 C. C. A. 112
That a complainant comes into a court of equity with unclean hands, in
that he is chargeable with fraudulent misrepresentations to the pulvic in
respect to the subject-matter of the suit, is not, strictly speaking, a de
fense, and need not be pleaded, but, upon such fact appearing, it will
be given effect by the court in the interest of the public by refusing to
grant relief to the complainant.
- Memphis Keeley Institute v. Leslie E. Keeley Co., 155 Fed. 964....

84 C. C. A. 112
The proprietor of a medicine or remedy made in accordance with a
secret formula, which knowingly makes false and fraudulent representa-
tions as to the ingredients of such remedy to the public through its ad-
vertisements and labels, cannot maintain a suit in equity to protect its
business of selling or administering such remedy from invasion and injury
by another.
-Memphis Keeley Institute v. Leslie E. Keeley Co., 155 Fed. 964....

84 C. 0. A. 112
The mere making and sale of repair parts for a well-known machine,
the patents on which have expired, by other than the patentee and maker
of the machine, which also makes and sells such repair parts, is not an
act of unfair trade, unless they are put out as the goods of the original
patentee, and especially where they are unmarked, while those made by
the patentee are marked with its name.

- Bender v. Enterprise Mfg. Co., 156 Fed. 641......84 C. C. A. 353
Complainants in a suit to restrain unfair competition although it may
be entitled to an injunction, held barred by its laches from the right to
an accounting for profits.
- Worcester Brewing Corp. v. Rueter & Co., 157 Fed. 217..

S4 C. C. A. 605
§ 3. Trade-marks and trade-names adjudicated.

"Sterling."—Worcester Brewing Corp. v. Rueter & Co., 665.


Treaties and statutes of the United States have always been practically
put in the same class, so far as judicial action is concerned, to the extent
that a later treaty has the same effect on a prior statute that a later
statute has, and may supersede it as a later statute may supersede a prior
treaty. Nor is there any practical distinction as between a statute and a

treaty with regard to its becoming presently effective without awaiting
further legislation which depends entirely upon its terms.
-United Shoe Machinery Co. v. Duplessis Shoe Machinery Co., 155
Fed. 842...

..84 C. C. A. 76


See “Logs and Logging."


See "Ejectment.”


See “New Trial”; “Witnesses."

Trial of actions by or against particular classes of persons.
See "Attorney and Client," $ 2.

Trial of particular civil actions or proceedings.
See “Negligence," $ 2.
For death caused by operation of railroad, see "Railroads,” $8 1, 2.
For personal injuries, see “Master and Servant," $ I.
For services of attorney, see "Attorney and Client," $ 2.

Trial of criminal prosecutions.
See “Criminal Law," $$ 10, 11; “Perjury," $ 2.

§ 1. Instructions to jury-Necessity and subject-matter.

Plaintiffs, claiming a lien thereon for wages under the statutes of Ver-
mont, and also a general indebtedness, attached certain logs and pulp
wood in the possession of a contractor, who had agreed to sell and de-
liver the same to defendants in New Hampshire, and had given them a
mortgage thereon. Pursuant to some agreement made between one of the
plaintiffs and one of the defendants, plaintiff's released the attachment,
and the property was delivered to defendants. Having obtained a judg-
ment against the contractor, plaintiffs demanded payment of the same
from defendants, and, being refused, brought suit in a federal court,
alleging that defendants had promised to pay such judgment when the
attachments were released. This was denied by defendants, who claim-
ed that their agreement was to account for the logs in case plaintiffs
established a lien thereon. The only witnesses upon the issue were the
two persons between whom the agreement was made, who contradicted
each other. Under the laws of Vermont, defendants would have had the
right to contest the validity of plaintiff's lien. Held, that such laws were
material as bearing upon the disputed question of fact as to the actual
agreement made, and that it was error for the court to refuse defendant's
request to present them to the jury in its charge.

-Burgess Sulphite Fibre Co. v. Drew, 1.57 Fed. 212..81 C. C. A. 600

§ 2. Construction and operation.

In an action by a servant against the master to recover for a personal
injury alleged to have been caused by a defective appliance furnished by
the defendant, expressions used by the court, in its charge, that, under
the circumstances, it was the duty of defendant to furnish and maintain
reasonably safe appliances, are not ground for reversiul, where the duty
of defendant was elsewhere explained as not being absolute, and where
at defendant's request the jury were specifically instructed at the close

of the charge that it was the duty of the defendant only to use reason-
able and ordinary care.
-Katahdin Pulp & Paper Co. v. Peltomaa, 156 Fed. 342.

84 C. C. A. 238
§ 3. Custody, conduct, and deliberations of jury.

A court has a wide discretion in the matter of charging the jury, and
may bring the jury in at any time and give them additional instructions,
whether requested or not; and where they ask for additional instructions
on a particular question it is not error for the court also to further in-
struct them on other issues.
- Charlton v. Kelly, 156 Fed. 433....

.84 C. C. A. 295

Trust deeds, see "Mortgages."
§ 1. Creation, existence, and validity-Constructive trusts.

One of defendants, on behalf of himself and his codefendants, who were
his partners in the freighting business in Alaska, entered into an agree-
ment with plaintiff by which the latter was to locate mining claims in
the name of some one of defendants, who were to record the locations
and pay the cost of recording, plaintiff to have a half interest in such
claims, and defendants together the other half interest. From that time
forward defendants as partners engaged in dealing in and working min-
ing claims. Plaintiff located certain claims, and delivered the location
notices to defendants, who did not, however, record the same, but, after
the time for recording them had expired, relocated the claims for their
joint benefit. Held, under the evidence, that defendants became partners
for mining purposes from the time of the agreement made with plaintiff,
and were all bound by such agreement; that their action in failing to
perfect plaintiff's locations, and in relocating the claims, was for the
fraudulent purpose of cheating plaintiff of his half interest; and that in
equity they held such interest as trustees, for his benefit.
-Cascaden v. Dunbar, 157 Fed. 62; Dunbar v. Cascaden, Id...

84 C. C. A. 566
§ 2. Establishment and enforcement of trust.

The rule that, where a bank has mingled trust money with its own
funds, money paid out from such fund for its own purposes will be pre
sumed to have been paid from its own money, and not from the trust
fund, is qualified by the further rule that, if the mingled fund is reduced
at any time below the amount of the trust fund, the latter must be regard-
ed as dissipated, except as to such balance, and suns subsequently added
from other sources cannot be treated as a part of the trust fund.
-Board of Com’rs of Crawford County, Ohio, v. Strawn, 157 Fed. 49

84. C. C. A. 553
Under the statutes of Ohio a county treasurer has no authority to de-
posit taxes collected as a general deposit in a bank, and the bank can
acquire no title to money so deposited as against the county, nor can an
estoppel arise from any act of its officers which will prevent its recovery
of such money from a receiver of the bank when it can be identified or
traced into other property where it has been mixed with funds of the
-Board of Com’rs of Crawford County, Ohio, v. Strawn, 157 Fed. 49

84 C. C. A, 533
The mere misapplication of a trust fund does not create a general lien
on the tort-feasor's estate, but, to entitle the owner to recover such fund
from a receiver of the trustee, it must be traced either in its original
form or into specific property which passed to the receiver.
-Board of Com’rs of Crawford County, Ohio, v. Strawn, 157 Fed. 49

84 C. C. A. 553
The cashier of a national bank in Ohio, at the time it went into the
hands of a receiver in insolvency, was a deputy county treasurer, and had
for some time previously been collecting taxes at the bank, which were
deposited in the bank to the credit of the treasurer, and mingled with
the bank's funds. Neither of such officers had any power under the law
to make such deposits nor to part with title to the money. Of the funds
of the bank with which such taxes were mingled, a certain amount, less
than the trust funds, remained on hand at all times, and there was a
still larger amount in the fund when the receiver was appointed. Held,
that the county was entitled to recover from the receiver, as a part of
the trust fund, so much of the cash taken possession of by the receiver
as equaled the lowest cash balance remaining in the bank at any time
while the taxes were being collected, together with the collections subse-
quently made, but that it could not recover the proceeds of commercial
paper acquired by the bank during such time and collected by the receiver,
without establishing by proof that the tax money, or the fund in which it
was mingled, in fact went into such paper.
-Board of Com’rs of Crawford County, Ohio, v. Strawn, 157 Fed. 49

84 C. O. A. 553


See "Trade Marks and Trade-Names," $ 2.


See “Customs Duties"; "Post Office.”
Courts, see “Courts," & 2; "Removal of Causes."
Judgment in state court as bar to suit in United States court, see "Judgment,”

$ 3.

See “Sales."
Requirements of statute of frauds, see "Frauds, Statute of," § 1.


Review on appeal or writ of error, see "Appeal and Error,” $ 8.


See “Master and Servant,” g 2.


See "Municipal Corporations."


of servant, see “Master and Servant,” 1.

See “Estoppel."
Of objections to proceedings in equity, see “Equity," $ 3.
of pleas in abatement in criminal prosecution, see "Criminal Law," $ 4.

Equity has jurisdiction of a suit to restrain waste by the cutting and
removal of valuable timber, and incidentally for an accounting for waste
already committed.
-Bell y. North American Coal & Coke Co., 155 Fed. 712..

84 C. C. A. 60

Public ways, see "Municipal Corporations," $ 1.

Construction and execution of trusts, see “Trusts."

See "Evidence.”
Perjury, see “Perjury."
Testimony of accomplices, see "Criminal Law," $ 9.
§ 1. Competency-Capacity and qualifications in general.

A clerk in the office of a district foreman of a telephone company is
not, from the fact of his position alone, qualified to testify as to the duties
of subforemen, who are under the orders of his chief, on an issue as to
whether the chief duty of such subforemen was superintendence, so as to
render the company liable to other employés for their negligence under
the Massachusetts employers' liability act (Rev. Laws, c. 106, $$ 71-79).
-New England Telephone & Telegraph Co. v. Butler, 156 Fed. 321

84 C. C. A. 217
$ 2. Confidential relations and privileged communications.

A letter written by an attorney to his client, advising him of the
terms of an injunction granted against him in a suit in which the attor-
ney is employed, is not a privileged communication, since it contains
nothing in the way of a confidential disclosure, and it is admissible in
evidence to show actual notice of the injunction by the client.
--Aaron v. United States, 155 Fed. 833..

....84 C. C. A. 67
$ 3. Credibility, impeachment, contradiction, and corroboration-In-

consistent statements by witness.
Statements made by a witness in a deposition taken in another action,
contradictory of his testimony given in the cause on trial, may be read
in such cause for the purpose of impeachment, regardless of their rele-
vaney to the issues on trial; and in such case the party introducing them
is not required to read the entire deposition.
-Charlton v. Kelly, 156 Fed. 433..

.84 C. C. A. 295


.84 C. C. A. 372
“Development."-Charlton v. Kelly. 1.50 Fed. 133.

"Creditor.”—Kabusch v. Hand, 156 Fed. 660.

81 C. C. A. 295
“Knowingly swears falsely.”-Holmgren v. United States, 130 Fed. 139.

SI C. C. A. 301
"Lottery."-Fitzsimmons v. United States, 1.36 Fed. 177......84 C. C. A. 287
"Offenses against the United States.”—Thomas v. United States 1.56 Fed. 897:
Tags:rt vSim. Id..

.S+ C. C. A. 177
“Other valuable deposits Webb v. American Asphaltum Min. Co., 157 Fed.

.81 C. C. A. 651

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