Britton's debt. It charges that he permited Alfred M. Britton to do a perfectly lawful act, namely: to withdraw his own funds from the the association and transfer them to another bank.

192, 193; 212-217 What we have said in the case just decided, disposes of this question.

We answer it in the negative. True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S.

PAUL AND CHICAGO RAILWAY COMPANY, Plff. in Err.,

v.

SAMUEL MCLEAN.

(See S. C., Reporter's ed., 212-217.)

We, therefore, answer the first, third and fourth questions submitted to us by the Judges of the Circuit Court in the negative.

True copy. Test:

removal.

UNITED STATES, Piff.,

v.

JAMES H. BRITTON ET AL.
(See S. C., Reporter's ed., 192, 193.)
Indictment against bank president.

1. An indictment which charges a conspiracy between the president and a director of the same national bank to misapply its funds, by the purchase therewith of the shares of the association, does not Sufficiently state an offense under sections 5209 and 5440 of the Revised Statutes.

2. U.S. v. Britton, ante, followed. [No. 411.]

Argued Mar. 15, 16, 1883. Decided Apr. 2,1883. Na certificate of division in opinion between the Judges of the Circuit Court of the United States for the Eastern District of Missouri. The history and facts of the case appear in the opinion of the court, and in the related cases of U. S. v. Britton, ante, 520, 698, 703.

Mr. Wm A. Maury, Asst. Atty-Gen., for

plaintiff.

Messrs. Geo. H. Shields, Chester H. Krum, S. T. Glover, J. R. Shepley and J. B. Henderson, for defendants.

Mr. Justice Woods delivered the opinion of the court:

In this case the indictment contained two Counts. They charged a conspiracy between James H. Britton and Barton Bates, the first being president and a director, and the latter a director of the same banking association, to misapply its funds by the purchase therewith of the shares of the association. The first count described the offense which defendants conspired to commit substantially as it is set forth in count seventy-seven, and the second count described the offense as the same is set forth in count ninety-seven in the case just decided [ante, 520].

The Judges of the Circuit Court were divided in opinion upon the question whether the counts sufficiently stated an offense under sections 5209 and 5440 of the Revised Statutes, and the same has been duly certified to us for our opinion.

be disturbed unless it clearly appears that the discretion with which the court is invested has been improperly exercised.

1. If, upon the first removal, the Federal Court declines to proceed and remands the cause because of the failure to file the copy of the record within due time, the same party is not entitled, under existing laws, to file in the State Court a second petition for removal upon the same ground.

[No. 174.]

Submitted Mar. 14, 1883. Decided Apr. 2, 1883. 'N ERROR to the Circuit Court of the United States for the Southern District of New

IN

York.

The history and facts of the case appear in the opinion of the court.

Messrs. C. W. Bangs and F. L. Stetson, for plaintiff in error:

We assume that only such parts of the decision of the court below are open to review as are adverse to the contention of the plaintiff in error, and have been assigned as error.

Rule No. 21, U. S. Supreme Court, sec. 3 (XX., 905); Clark v. Killian, 103 U. S., 766 (XXVI., 607); The Enterprise, 2 Curt., 317.

The first remand was improperly ordered. The proceedings for removal were properly completed by the filing of the record as and when

it was filed, and the case was thereby removed.

It has been repeatedly held that when a sufficient case has been made for removal in a State Court, its jurisdiction ends, and no order of the State Court for the removal is necessary.

Hatch v. R. R. Co., 6 Blatchf., 105; Fisk v. R. R. Co., 8 Blatchf., 243; Removal Cases, 100 U. S., 475 (XXV., 600); Kern v. Huidekoper, 103 U. S., 490 (XXVI.,356); R. R. Co. v. Koontz, 104 U. S., 5 (XXVI., 643).

The failure to file the record in the Circuit

Court on the first day of the Term was sufficiently excused.

It was an unintentional oversight, which was rectified as soon as discovered.

It was within the cases of Kidder v. Featteau,

3 Fed. Rep., 616; Meyer v. Construction Co., 100 U. S., 457 (XXV., 593); R. R. Co. v. Koontz (supra).

Mr. D. M. Porter, for defendant in error: The cause on the first removal was properly remanded, because the Railroad Company did not comply with the statute nor with the terms of

its bond.

*Head notes by Mr. Justice HARLAN.

this court. But since the question, whether the cause should be remanded for failure to file the necessary copy in due time, is one of law and fact, its determination to remand, for such a reason, should not be disturbed unless it clearly appears that the discretion with which the court is invested has been improperly exercised.

We perceive no ground whatever to question the correctness of the order of May 28, 1879, or to conclude that there was any abuse by the court of its discretion. The only reason given for the failure to file the transcript within proper time was inadvertence upon the part of counsel; in other words, the filing was overlooked. It is scarcely necessary to say that this did not constitute a sufficient legal reason for not complying with the statute. At any rate, the refusal of the court to accept it as satisfactory cannot be deemed erroneous.

But it is contended that the order of December 27, 1879, remanding the cause, was erroneous, because the copy, upon the second petition for removal, was filed in the Federal Court within due time, after that petition, with the accompanying bond, was presented in the State Court. Assuming that the second petition for removal was filed before or at the Term at which the cause could have been tried in the State Court, we are of opinion that a party is not entitled, under existing laws, to file a second petition for the removal upon the same grounds, where, upon the first removal by the same party, the Federal Court declined to proceed and remanded the suit, because of his failure to file the required copy within the time fixed by the statute. When the Circuit Court first remanded the cause, the order to that effect not being superseded, the State Court was re-invested with jurisdiction, which could not be defeated by another removal upon the same grounds and by the same party. A different construction of the statute, it can be readily seen, might work injurious delays in the preparation and trial of

causes.

Judgment affirmed.

True copy. Test:

for three years. In a suit on coupons of the bonds by a bona fide holder for value; held, that the courts should acquiesce in the determination by the qualified voters and the local authorities that the proposed road was near the township, and hold that there was legislative authority for issuing the [No. 197.]

bonds.

Argued Mar. 20, 21, 1888. Decided Apr. 2, 1883.

N ERROR to the Circuit Court of the United States for the Western District of Missouri. This action was brought in the court below, by the plaintiff in error, to enforce the payment of certain interest coupons on bonds issued by by the defendant.

The trial of the case was by the court, a jury having been waived, and resulted in a judgment for the defendant, on a special finding of facts. Whereupon, the plaintiff sued out this writ of error.

A sufficient statement of the facts of the case appears in the opinion of the court. Messrs. John B. Henderson, H. C. Ering and Jos. Shippen, for plaintiff in error:

The plaintiff in error insists that the judgment of the lower court is erroneous, for the reasons: first, that the line of the railroad is sufficiently near to the township to comply with the provisions of said Act; second, that whether the road be far from or near to the township, is a question exclusively for the consideration of the people of the township and the county authorities, and their decision is final in the premises; and third, the recital in the bonds that they were issued under the Act of March 23, 1868, operates as an estoppel against the township, and makes them valid in the hands of an innocent holder for value.

Von Hostrup v. Madison, 1 Wall., 296 (68 U. S., XVII., 539); Meyer v. Muscatine, 1 Wall., 384 (68 U. S., XVII., 564).

In Knox Co. v. Aspinwall, 21 How., 539 (62 U. S., XVI.,208), it is said: "The bonds on their face import a compliance with the law under which they were issued and the purchaser was not bound to look further for evidence of a compliance with the condition of the

See, also, Woods v. Lawrence Co., 1 Black, 386 (66 U. S., XVII., 122); Von Hostrup v. Madison (supra); Coloma v. Eaves, 92 U. S., 490

V.

LAFAYETTE COUNTY.

(See S. C., Reporter's ed., 208-212.) Municipal bonds-legislative authority for. Under an Act of the Legislature of Missouri, county courts of counties were authorized to subscribe, in behalf of townships in their respective counties, to the capital stock of any railroad company within that State, building or proposing to build a railroad into, through, or near such township, and to issue bonds in the name of the county in payment of such subscription. There was a vote of a township in favor of issuing bonds in aid of a particular railroad company. The subscription was made and the bonds issued, reciting that they were authorized by a vote of the people, and were issued under and pursuant to an order of the county court by authority of the Act. When the vote was taken and the bonds issued, the company did not propose to build a road into or through the township, but it was proposing to build one from a point nine miles distant from the township to a farther distance. Interest on the bonds was paid *Head note by Mr. Justice HARLAN.

The judgment is reversed, with directions to enter judgment for plaintiff. True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S. Cited-112 U. S., 165.

The special finding of facts presents a single question, viz.: whether there was legislative authority for this issue of bonds. Its decision depends upon the construction to be given to that part of the before mentioned Act which invests county courts in Missouri with power to subscribe in behalf of townships, in their respective counties, to the capital stock of any railroad company within that State, building or proposing to build a railroad into, through, or near such township, etc.

When these bonds were voted by the township, as well as when they were issued, the St. Louis and St. Joseph Railroad Company did not propose to build a road into or through Lexington Township, but it was proposing to build the road which its charter authorized it to construct and operate, to wit: from Richmond, in Ray County, by the way of Plattsburg, to St. Joseph, in Buchanan County, Richmond is nine miles distant from Lexington Township The contention of the defendant in error is, that a road so far away was not, within the provisions of the statute, near to the township.

The word "near" is relative in its signification. What would be near in one locality would not be in another. Each case must be governed by its special circumstances. The main inquiry was, whether a railroad, when constructed, would be near enough to contribute to the convenience or advance the business interests of the particular township involved. It cannot be said, as matter of law, that this road was not near enough to Lexington Township to bring about such results. That was a question which the people of that township and the county court of the County were qualified and, within reasonable limits, authorized to settle for themselves. Their action in favor of a subscription was supplemented by payment of interest for three years. Under these circumstances, as between the township and a bona fide holder for value, as the plaintiff is conceded to be, the courts should acquiesce in the determination, by the qualified voters and the local authorities, that the road in question was near to Lexington Township. If there was error, in this determination, it is not so plain as to justify the courts in disturbing the practical construction put upon the statute, at the time the bonds were voted and issued, by those immediately interested in executing its provisions.

Von Hostrup, v. Madison, 1 Wall.. 291 [68 U. S., XVII., 538]; Meyer v. Muscatine, lb., 391 [68 U. S., XVII., 566].

MANHATTAN MEDICINE COMPANY, Appt.,

D.

(See S. C., Reporter's ed., 218-227.) Trade-mark-transfer of use of-fraudulent use of-false trade-mark.

1. The object of the trade-mark being to indicate, by its meaning or association, the origin or ownership of the article, when a right to its use is transfacturer or by operation of law, the fact of its ferred to others, either by act of the original manutransfer should be stated in connection with its

use.

cle showing that it is manufactured in a particular 2. To put forth a trade-mark attached to an artiplace, by a person whose manufacture there had acquired a great reputation, when, in fact, it is place, is a fraud upon the public which no court manufactured by a different person at a different of equity will countenance.

3. An exclusive privilege, for deceiving the pubsentations, is not one that a court of equity will aid lic by means of a trade-mark, containing misrepre or sanction.

[No. 66.]

Argued Mar. 7, 1883. Decided Apr. 2, 1883.

States for the District of Maine.

PPEAL from the Circuit Court of the United

The history and facts of the case appear in the opinion of the court.

Messrs. Geo. F. Edmunds, Philo Chase, Thorndike Saunders and R. D. Mussey, for appellant:

The Atwood Label was a trade-mark right, entitled to protection, and assignable.

McLean v. Fleming, 96 U. S., 245 (XXIV., 828); Kidd v. Johnson, 100 U. S., 617 (XXV., 769); Hall v. Barrows, 4 DeG. J. & S., 150; 8. C., 33 L. J. Ch., 204; 8. C., 10 Jur. (N. S.), 55; Fulton v. Sellers, 4 Brews., 42; Field v. Lewis, Seton, Decrees in Equity, 4th ed., 237.

The record shows an express assignment; but such proof is not necessary, because a transfer and succession of business of an article carries with it its trade-mark, by implication.

Shipwright v. Clements, 19 W. R., 599; Congress & E. Spring Co. v. High Rock Spring Co., 45 N. Y., 291.

The law will not allow one man to sell his goods as those of another, by the use of similar labels.

Cases cited above; also, Perry v. Truefitt, 6 Beav., 66; Craft v. Day, 7 Beav., 84; Taylor v. Carpenter, 11 Paige, 292; Mfg. Co. v. Spear, 2 Sandf. S. C., 599: Coffeen v. Brunton, 5 McL., 256; Taylor v. Taylor, 2 Eq. Rep., 290; 23 Eng. L. & E., 281; Farina v. Silverlock, 2 Jur. (N. S.), 1008; White Lead Co. v. Masury, 25 Barb., 416; Edelston v. Edelston, 9 Jur. (N. S.), 479; Boardman v. Meriden Brit. Co., 35 Conn., 402; Colman v. Crump, 70 N. Y., 573.

strain the unauthorized use of a trade-mark. See note NOTE.-When an injunction will be granted to reto McLean v. Fleming, 96 U, S., XXIV., &8.

The court will enjoin any imitation calculated to deceive ordinary purchasers. Crawshay v. Thompson, 4 Man. & G., 385; Davis v. Kendall, 2 R I., 566; Holmes v. Holmes, 37 Conn., 278; Wotherspoon v. Currie, 22 Law T. (N. S.), 260; Hookham v. Pottage, 26 L. T. (N. $.), 755

it has been ever since sold "By the name, and in the manner, and with the trade-marks, label and description substantially the same as aforesaid;" that the complainant is the exclusive owner of the formula and recipe for making the medicine, and of the right of using the said name or designation, together with the trademarks, labels and good will of the business of making and selling the same; that large sales of the medicine under that name and designation are made, amounting annually to twelve thousand bottles; that the defendants are man

This is a suit in equity, to restrain the defendants from using an alleged trade-mark of the complainant, upon certain medicines prepared by them, and to compel an accounting for the profits made from its use in their sale of the medicines; also, the payment of damages for their infringement of the complainant's rights.

The complainant, a Corporation formed under the laws of New York, manufactures in that State, medicines designated as "Atwood's Vegetable Physical Jaundice Bitters;" and claims as its trade-mark this designation, with the accompanying labels. Whatever right it possesses it derives by various mesne assignments from one Moses Atwood, of Georgetown, Massachusetts. The bill alleges that the complainant is and for a long time previous to the grievances complained of was the manufacturer and vendor of the medicine mentioned; that it is put up and sold in glass bottles with twelve panel-shaped sides, on five of which in raised words and letters "Atwood's Genuine Physical Jaundice Bitters, Georgetown, Mass.," are blown in the glass, each bottle containing about a pint, with a light yellow printed label pasted on the outside designating the many virtues of the medicine, and the manner in which it is to be taken; and stating that it is manufactured by Moses Atwood, Georgetown, Mass., and sold by his agents throughout the United States.

The bill also alleges that the bottles thus filled and labeled are put up in half-dozen packages with the same label on each package; that the medicine was first invented and put up for sale about twenty-five years ago by one Dr. Moses Atwood, formerly of Georgetown, Massachusetts, by whom, and his assigns and successors,

other places within the United States, unknown to the complainant, an imitation of the medicine, with the same designation and labels, and put up in similar bottles, with the same, or nearly the same, words raised on their sides, in fraud of the rights of the complainant and to its serious injury; that this imitation article is calculated and was intended to deceive purchasers, and to mislead them to use it instead of the genuine article manufactured by the complainant, and has had and does have that effect. The bill, therefore, prays for an injunc tion to restrain the defendants from affixing or applying the words "Atwood's Vegetable Physical Jaundice Bitters," or either of them, or any imitation thereof, to any medicine sold by them, or to place them on any bottles in which it is put up; and, also, from using any labels in imitation of those of the complainant. It also prays for an accounting of profits and for damages.

Among the defenses interposed are these: that Moses Atwood never claimed any trademark of the words used in connection with the medicine manufactured and sold by him; and assuming that he had claimed the words used as a trade-mark, and that the right to use them had been transferred to the assignors of the complainant, it was forfeited by the misrepresentation as to the manufacture of the medicine on the labels accompanying it, a misrepresentation continued by the complainant.

In the view we take of the case, it will not be necessary to consider the first defense mentioned, nor the second, so far as to determine whether the right to use the words mentioned as a trade-mark was forfeited absolutely by the assignor's misrepresentations as to the manufacture of the article. It is sufficient for the disposition of the case, that the misrepresentation has been continued by the complainant. A court of equity will extend no aid to sustain a claim to a trade-mark of an article, which is put forth with a misrepresentation to the public as to the manufacturer of the article, and as to the place where it is manufactured, both of which particulars were originally circumstances to guide the purchaser of the medicine.

66

It is admitted that whatever value the medicine possesses was given to it by its original manufacturer, Moses Atwood. He lived in Georgetown, Massachusetts. He manufactured the medicine there. He sold it with the designation that it was his preparation, Atwood's Vegetable Physical Jaundice Bitters," and was manufactured there by him. As the medicine was tried and proved to be useful, it was sought for under that designation, and that purchasers might not be misled, it was always accompanied with a label, showing by whom and