which parties would not gladly pay two dollars and a half per acre for the right to cut it, provided it cannot be done on easier terms. But if as trespassers they can cut and destroy on larger tracts of land and only occasionally, when detected and prosecuted, criminally, secure immunity by paying two dollars and a half per acre for small portions of their depredations, they are not likely to trouble themselves much about consequences. On that hypothesis, on the general result, it would be much more profitable to unlawfully take than to buy the timber, even if it could be bought. Such a construction of the act of 1878 as is contended for by defendant, would hold out a large premium to trespassers to utterly denude the public lands of their most valuable timber. I do not think congress in the act of 1878 contemplated any such absurd consequences. I do not perceive that reversing the proceedings and indicting the party first, and beginning the civil action afterwards, would vary the rights of the parties. I am of the opinion that a payment in pursuance of section 5 of the act of 1878 does not discharge the party from liability other than that created by section 2461, Rev. St. and that the facts alleged in the third division of the answer, constitute no defense, and that that defense should be stricken out as irrelevant. It is so ordered.

STOUGHTON v. WOODARD et al.

(Circuit Court, W. D. Wisconsin. August 6, 1889.)

TRADE-MARKS-"COUGH CHERRIES."

"

The words "Cough Cherries, as applied to a confection, are not descriptive of the qualities of the article, but are sufficiently arbitrary and fanciful to be appropriated as a trade-mark.

In Equity. On bill for injunction.

Action by Dwight G. Stoughton against Marshall J. Woodard and others to restrain defendants from using complainant's trade-mark. Coltzhausen, Sylvester & Scheiber, for complainant.

Hall & Skinner, for defendants.

BUNN, J. This is an application by the complainant for a temporary injunction to restrain the defendants from using the complainant's trademark. The case stands upon the allegations of the complainant's bill. By said bill it appears that in September, 1886, the complainant, residing at Hartford, Conn., and engaged in the manufacture and sale of confections, adopted as a trade-mark, under the laws of Connecticut, the words "Cough Cherries" for a certain brand of confections made and sold by him; that he has continued such manufacture and sale, in connection with the use of such trade-mark, from 1886 to the present time; that he has expended large sums of money in advertising said confec tion, so that the goods sold under this designation have become widely

known to the trade; that no one had ever used the said words in connection with the manufacture and sale of confections before; that the goods so manufactured and sold by complainant under said trade-mark are of a form roughly approximating an oblate spheroid, of a reddish color, of a cherry flavor, and medicated for alleviating coughs and colds. It is further alleged, and the fact is not controverted, that the defendants have, since the 15th day of February, 1888, at Watertown, Wis., been engaged in making and selling, without complainant's leave, confections similar to those of complainant, put up in a similar manner, and labeled with the same words, "Cough Cherries."

The only question for the court to determine is whether the words adopted by the complainant can properly be used and appropriated as a trade-mark. And under the principles established by adjudged cases I think they may. The rule applicable to the case is perhaps laid down as well in Selchow v. Baker, 93 N. Y. 59, as in any adjudged case, as follows:

"That when a manufacturer has invented a new name, consisting either of a new word or words in common use, which he has applied for the first time to his own manufacture, or to an article manufactured for him, to distinguish it from those manufactured and sold by others, and the name thus adopted is not generic or descriptive of the article, its qualities, ingredients, or characteristics, but is arbitrary or fanciful, and is not used merely to denote the grade or quality, he is entitled to be protected in the use of that name."

In that case the complainant had manufactured and sold pictures of animals in sections arranged in such a manner that when put together in a certain way a picture of an animal would be presented. These pictures they had put up in boxes and labeled "Sliced Animals." The court held that the words were not simply descriptive of the articles sold, but were more or less arbitrary and fanciful. I think the same rule applies to this case. The words "Cough Cherries" are not properly merely descriptive of the qualities of the thing manufactured and sold, but are to a large extent arbitrary and fanciful, quite as much so as "Sliced Animals," applied to pictures of animals in parts or sections. If the label adopted had been "Cough Candy," "Cough Remedy," or "Cough Confection," or if the article sold had been cherries in fact, and labeled as these goods were, the case would come within the ordinary rule that, when the words adopted are simply descriptive of the qualities of the article sold, they will not be sustained as a trade-mark, on the principle that what is already the common property of everybody cannot be exclusively appropriated as the property of any individual. But the words "Cough Cherries," applied to a confection, are clearly distinguishable, in my judgment, from all the cases I have examined where the court has refused to sustain a trade-mark on the principle above stated. An injunction will issue as prayed.

UNITED STATES v. TOZER.

(Circuit Court, E. D. Missouri, N. D. September 30, 1889.)

1. CARRIERS-INTERSTATE COMMERCE ACT-CARRIAGE FOR SAME PERSON. A grocery company of Hannibal, Mo., ordered a broker in Chicago to ship two barrels of sugar to a customer in Hepler, Kan. This order was executed by shipping the sugar over the C., B. & Q. R. Co. A through bill of lading was taken in the name of the broker, with the customer indicated as consignee, which reserved to the C., B. & Q. Co. the right to forward the property from Hannibal, Mo., over the line of any connecting carrier. At the latter place the sugar was unloaded, placed in the warehouse of the Mo. Pac. Ry. Co., and thence loaded on its cars, and carried to Hepler, where the total freight charges, at the rate of 51 cents per hundred, were paid by the consignee. Of this rate 34 cents per hundred only were retained for the Mo. Pac. Ry. Co. The Mo. Pac. Ry. and the C.. B. & Q. Co. had a standing arrangement by which rates were fixed from Chicago to points on the Missouri Pacific's line, by adding an arbitrary sum-five cents-to the rate from Hannibal to such points. On the same day, the grocery company sold to the same customer one barrel of sugar, and shipped it over the Mo. Pacific's road from Hannibal to Hepler, and paid the freight charges in advance, which were at the rate of 46 cents per hundred. Held, that the two services were not rendered for one and the same party in such sense that there could be no undue discrimination, within the meaning of the interstate commerce act.

2. SAME-DISCRIMINATION IN RATES-SECTION 3.

Section 3 of the interstate commerce act, which declares it to be unlawful for a carrier to give "an undue or unreasonable preference" to any person, firm, corporation, or locality, or to subject any person, etc., to any undue or unreasonable prejudice or disadvantage "in any respect whatsoever," does not refer solely to facilities afforded to shippers, but applies also to discrimination

in rates.

8. SAME-ADJUSTMENT OF THROUGH RATES.

Congress did not intend to leave carriers the power to grant undue prefer ences, or to subject persons or places to undue disadvantages, by any devices, or by any adjustment of joint through rates with relation to local rates. When two carriers establish a joint through rate, the proportion thereof that one carrier receives for carriage of property between two points on its line may be compared with its local rates between the same points, for the purpose of establishing that an unreasonable preference has been given, or that a shipper has been subjected to an undue disadvantage.

4. SAME-PROVINCE OF JURY.

Whether the difference between such local rate and the proportion of a joint through rate is reasonable or unreasonable, is a question of fact for the jury.

Indictment for Violation of Interstate Commerce Act. On motion for new trial and in arrest of judgment.

George D. Reynolds, U. S. Atty., and Charles Claflin Allen, for plaintiff. Thomas J. Portis and Aldace F. Walker, for defendant.

THAYER, J. The defendant having been convicted on the second and third counts of the indictment, for violation of the third section of the interstate commerce act, forbidding unreasonable preferences, etc., (39 Fed. Rep. 369,) the case is again before the court, on a motion in arrest of judgment and for a new trial.

The first point demanding consideration is one made by defendant's counsel to the effect that no preference was given in the present case, and that no person or corporation was subjected to an undue disadvantage,

because the Hayward Grocery Company, the complainant, made both shipments in question,-that is to say, the one from Chicago to Hepler, Kan., and the one from Hannibal, Mo., to the same point. It is said that, inasmuch as both services were rendered for the same person, it cannot be said that any preference or discrimination within the meaning of the law was shown. Undoubtedly the point is well taken if the service in each instance was rendered for the same party. The facts, as developed by the testimony, are that the Hayward Grocery Company, in June, 1887, ordered Randall & Fowler to ship two barrels of sugar from Chicago, Ill., to John Viets, at Hepler, Kan., who appears to have been a customer of the grocery company. Randall & Fowler were merchandise brokers. They executed the order by buying and shipping the sugar over the Chicago, Burlington & Quincy Railroad, taking therefor a bill of lading in their own name as consignors. Under the head of "Marks and Consignees" was written "John Viets, Hepler, Kan.," and underneath that the following words appear where rates are usually specified: "From Chicago to Hepler-Tariff." Across the face of the bill of lading was stamped a notice to the effect that the Chicago, Burlington & Quincy Railroad Company expressly reserved the right to forward the property from the terminus of its own road by the road of any connecting carrier whom it might select. At Hannibal, Mo., it selected the Missouri Pacific Railway to complete the carriage to the point of destination. The sugar was there unloaded, placed in the warehouse of the Missouri Pacific Railway Company, and thence loaded into one of its cars on June 15, 1887, and carried forward by the latter company to Hepler. The total freight charge from Chicago to Hepler, Kan., was paid to the Missouri Pacific Railway Company, on the arrival of the property, by John Viets, the consignee, the rate being 51 cents per hundred, and of this sum the defendant Tozer, as agent of the Missouri Pacific Railway Company, advanced to the Chicago, Burlington & Quincy Railroad Company its proportion, on receipt of the property at Hannibal, Mo. The Chicago, Burlington & Quincy Railroad Company and the Missouri Pacific Railway Company had a standing arrangement in force at the time of this transaction, whereby the rate on sugar and fourth-class freight from Chicago, Ill., to points on the Missouri Pacific's road in Kansas, Nebraska, and the Indian Territory, via the Chicago, Burlington & Quincy Railroad, the town of Hannibal, and the Missouri Pacific Railway, was to be ascertained and fixed by adding to the established rate from Hannibal to such points an arbitrary sum, to-wit, five cents per hundred. The rate from Hannibal to Hepler, Kan., over the Missouri Pacific Railway, on shipments originating at Hannibal, was 46 cents per hundred on sugar, in June, 1887. On the shipment made from Chicago by Randall & Fowler to John Viets, the consignee accordingly paid a rate of 51 cents per hundred. Of this sum the Missouri Pacific Railway Company retained, as it appears, 34 cents only, and accounted to the Chicago, Burlington & Quincy for 17 cents per hundred of the alleged joint or through rate. The other shipment that figures in this controversy was made by the Hayward Grocery Company at Hannibal, on June 17, 1887. On that day the

grocery company sold and shipped one barrel of sugar to John Viets, at Hepler, Kan., over the Missouri Pacific Railway, and paid the freight charges in advance. For the latter service the defendant, as agent of the railway company, charged the grocery company at the rate of 46 cents per hundred from Hannibal to Hepler.

On this state of facts the court is of the opinion that the two services were not rendered for one and the same party, in such sense that there could be no preference or discrimination within the meaning of the law. The bill of lading, as the court construes it, was a through bill of lading, and bound the Chicago, Burlington & Quincy Railroad Company to carry the property through to the point of destination at tariff rates,that is to say, at 51 cents per hundred. The service rendered by the Missouri Pacific Railway Company as to the Chicago shipment was a service rendered for the Chicago, Burlington & Quincy Railroad Company, to enable it to complete its contract of affreightment. On delivery of the sugar to the Chicago, Burlington & Quincy Railroad Company, at Chicago, title vested in the purchaser or consignee; subject, of course, to the right of stoppage in transitu, in case of the insolvency of the consignee before actual delivery. Indeed it does not appear that the Hayward Grocery Company was at all interested in the through rate made by the Chicago, Burlington & Quincy Railroad Company on that shipment, as the freight was to be paid at the point of destination by the purchaser, and it was so paid. The other service rendered in connection with the shipment originating at Hannibal was a service rendered for the grocery company, as it both employed the carrier and paid for the service to be rendered in advance. There was ample evidence, in the opinion of the court, to support the charge laid in the second and third counts of the indictment, that the defendant charged 46 cents per hundred for a service rendered the grocery company, and a less compensation for a service rendered the Chicago, Burlington & Quincy Railroad Company. In no aspect of the case can the two carriers be regarded as joint contractors with the grocery company for the transportation for it of two barrels of sugar from Chicago to Hepler. The Chicago, Burlington & Quincy Railroad Company either employed the Missouri Pacific Railway to carry out a contract for through carriage, which it had undertaken, or in the matter of engaging the services of the Missouri Pacific Railway Company it acted as agent for the consignee of the goods, and it appears to the court to be immaterial, so far as this case is concerned, in which of the two capacities it acted.

It is next insisted that section 3 of the interstate commerce act relates and has reference solely to facilities afforded to shippers, and not to rates, and that no discrimination in rates will constitute an undue "preference or disadvantage" within the meaning of the law. This point was raised, considered, and overruled at the trial, and it seems hardly necessary to enter upon a discussion of that question again. The intent of the lawmaker in this section of the act seems clear enough. It is declared to be unlawful for a carrier to give "an undue or unreasonable preference" to any person, firm, corporation, or locality, or to subject any person, firm,