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In answer to the question, "What, if anything, did he say in these conversations as to whether the fact that his name was Rowley was beneficial to his business or not?" Lynn said: "The Rowley was the only name that he had to do business with; he couldn't do it under any other name and make a success of it." His plan to trench on the established Rowley business is evidenced by the fact that he used no catalogues, etc., of his own. Indeed, he made use of complainant's catalogue itself, and the proofs satisfy us that, while refraining from so stating to customers, he so used it with some customers as to convey to them the impression that he was still employed by the complainant, and the limbs he was selling them were made by that company. Indeed he made some slight changes or repairs in limbs of complainant's make, and referred to the wearers of them as using respondent's make. We think his purpose to avail himself of complainant's trade good will is clearly shown in the sign over his place of business, which contained the words "E. H. Rowley" above, and immediately below this, and in large letters, the words "Rowley Artificial Limbs." His desire to associate himself with the business of complainant and his interest in doing so are shown by his exhibition of pictures of himself working in their establishment, of him fitting limbs of their make, and of his untrue statement that he had been employed at Chicago 12 years. Thus, in answer to a decoy letter the complainant had a prospective customer write him to ascertain if he was representing himself as making the Rowley leg, he wrote from Pittsburgh:

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"I am making the Rowley legs, and am making them here, so if you come here I can give you the same treatment I give others while I was in Chicago. and save you the expense of going so far. ** I have a man here who walks 'slack' wire with both legs off below the knee [an untruth]. I was in Chicago 12 years [another; he was there less than four years], and am now located here, so can give you the same treatment as all Rowley wearers get,"

There are many other things in the proofs to which reference might be made which, in connection with the above, convince us that the respondent, knowing the name Rowley was the trade designation of complainant's product, used his own name in starting business, not as a legitimate and honest use thereof, but as a fraudulent aid to filch the complainant's business. If the respondent's name was not Rowley, no court would for a moment permit him to thus use that name, which had already gained a valuable trade significance in designating the goods of another maker. But if a fraudulent purpose to filch trade good will exists, the fact that it is attempted under the semblance of the use of a man's own name makes the use none the less wrong. As an abstract right, every person has the right to the use of his own name; but when the use of such name is but a cloak to cover an intended fraud upon the rights of another, the wrongdoer has himself and not the law to blame for placing a limitation upon the right to the use thereof. Authorities in support of this view are found in Valentine v. Valentine, 83 L. T. N. S. 259; Cash v. Cash, 84 L. T. N. S. 349; Jamieson v. Jamieson, 15 Rep. Pat. Cases, 193; Hires v. Hires, 6 Pa. Dist. 285; cases cited in 28 Amer. & Eng. Ency. Law, 426; Croft v. Day, 7 Beav. 84; Pillsbury v. Flour Mills Co., 64 Fed. 841,

12 C. C. A. 432; and Chemical Company v. Meyers, 139 U. S. 540, 11 Sup. Ct. 625, 35 L. Ed. 247, where it is said:

"It is hardly necessary to say that an ordinary surname cannot be appropriated as a trade-mark by any one person as against others of the same name, who are using it for a legitimate purpose, although cases are not wanting of injunctions issued to restrain the use even of one's own name where a fraud upon another is manifestly intended."

In view of the facts of this case, and particularly of the conduct of this respondent, we are very clear that nothing short of a total prohibition of the name Rowley in connection with the manufacture and sale of artificial limbs will grant to the complainant that complete protection and preservation of its property in its trade-name and good will to which it is entitled under the law. A form of decree enjoining respondent from using the name Rowley in connection with the sale of artificial limbs may therefore be submitted.

In re COMSTOCK.

(District Court, D. Rhode Island. June 24, 1907.)

No. 624.

1. BANKRUPTCY-COMPOSITION-CONFIRMATION-FRAUD.

Under Bankr. Act July 1, 1898, c. 541, 30 Stat. 549 [U. S. Comp. St. 1901, p. 3427], § 12d, providing that a composition shall be confirmed if the judge is satisfied that it is for the best interests of creditors, and that the bankrupt has not been guilty of any act which would bar his discharge, a composition cannot be sustained where it is proved by the holder of an assigned claim against the bankrupt that he had been guilty of fraudulent concealment and disposal of assets of great value, though it appears that the creditors under the composition might get a larger dividend than would be secured on full administration.

2. SAME-OBJECTING CREDitor-Motive.

Where the holder of an assigned claim against a bankrupt objected to confirmation of a composition because of fraudulent concealment and disposal of assets by the bankrupt, it was immaterial that the holder of such claim purchased it for the purpose of forcing a settlement or discontinuance of a suit instituted by the trustee against another, by threats of opposition to the confirmation.

In Bankruptcy.

J. Jerome Hahn, for bankrupt.

Adoniram J. Cushing, for objecting creditor.

BROWN, District Judge. The bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 549 [U. S. Comp. St. 1901, p. 3427], in section 12d, provides:

"The judge shall confirm a composition if satisfied that (1) it is for the best interests of the creditors; (2) the bankrupt has not been guilty of any of the acts or failed to perform any of the duties which would be a bar to his discharge; and (3) the offer and its acceptance are in good faith and have not been made or procured except as herein provided, or by any means, promises, or acts herein forbidden."

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It is clear that, if the bankrupt has been guilty of any of the acts which would be a bar to a discharge, the court is without power to confirm a composition, even if satisfied that it would be for the best interests of the creditors to do so. Since the confirmation of a composition discharges the bankrupt (section 14c), it is reasonable that the same grounds which prevent a discharge on a direct petition should also prevent a discharge on an application for confirmation of a composition. "The intention clearly is to prevent one who cannot get a discharge from securing its equivalent through a composition." Collier on Bankruptcy (6th Ed.) p. 167. Judge McPherson said, in Re Godwin (D. C.) 122 Fed. 111:

"It is very likely that the creditors may lose by the defeat of the proposed composition; but this consideration cannot be allowed to influence the court in deciding whether the bankrupt has been 'guilty of any of the acts, or failed to perform any of the duties, which would be a bar to his discharge.' The fact that only one creditor is actively objecting. while a large majority is in favor of taking what the bankrupt offers, is of no importance in the present inquiry."

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This may be regarded as working in some cases a hardship to creditors, since a fraudulent bankrupt will often pay a dividend larger than may be secured upon full administration, and since it may be more profitable to condone fraud than to expose and punish it. But the policy of the act, that a fraudulent bankrupt shall be denied a discharge even if creditors lose thereby, is sound if the question of bankruptcy administration be broadly considered. A general readiness of creditors to condone fraud, and to accept compromises which yield. profit to bankrupts, is a chief encouragement to schemes of fraudulent bankruptcy. To permit even a single creditor to defeat it tends to make such a scheme more difficult of fulfillment, and thus to discourage it.

The proof shows clearly that this bankrupt is not entitled to a discharge. Enough appears from his own testimony to show the concealment and secret disposal of goods of the value of many thousands of dollars, and the testimony of other witnesses is sufficient to establish this independently. There is no reasonable explanation for the confusion and insufficiency of the bankrupt's accounts, for the carting of goods from place to place, and their concealment in out of the way buildings, where goods would not be stored for legitimate commercial purposes, for his assignment of book accounts, or for his absence at the time of his failure. His entire course of conduct is consistent only with an intent to keep his creditors and his trustee in ignorance, and to defraud them by a concealment of his assets. hearing, the trustee and counsel for creditors learned for the first time of the secret shipment to New York, and of the secret sale of goods of the value, at ordinary prices, of about $12,000.

At the

Objection is made to the status of the single objecting creditor, on the ground that the confirmation is opposed, not by an original creditor, but by an assignee, who is said to have bought the claim for the purpose of forcing a settlement or discontinuance of a suit instituted by the trustee against one Peck, through threats of opposition to the confirmation. There is reason to believe that this may be the fact,

UNITED STATES V. WALSH.

and that the objector, in procuring an assignment of a claim and in filing objections, had another motive than the securing of a dividend larger than the amount offered in composition. The assignee of an original claim, however, has all the legal rights of his assignor. Shropshire, Woodliff & Co. v. Bush, 204 U. S. 186, 27 Sup. Ct. 178, 51 L. Ed. 436. In pursuing his objections to this composition, he is acting within his legal rights. That he had ulterior or improper motives in acquiring the claim, or that he may have contemplated the use of it for extortion, is not improbable; but is this material? By pursuing his objections before the judge, he has put it out of his power to coerce the bankrupt or the trustee by threats of objecting to the composition. He is now exercising the rights of a creditor for a legitimate purpose, and to inform the court that facts exist which deprive this bankrupt of the right to a discharge.

The Circuit Court of Appeals for the Second Circuit, in Re Sully, This 152 Fed. 619, 621, said: "The element of motive cannot prejudice the assertion of a clear legal right or statutory privilege. was said concerning present or existing motives. The motive of extortion, referred to in the present case, is a past and nonexistent motive, for when the objecting creditor decided to proceed before the judge, and produce complete evidence of fraud, he necessarily abandoned any attempt to secure a price for his silence or for his consent to the approval of the composition.

The application for confirmation of the composition is denied.

UNITED STATES v. WALSH.

(Circuit Court, D. Massachusetts. February 5, 1907.)

No. 159 (1,849).

1. CUSTOMS DUTIES-CLASSIFICATION-FLAX-WOOL FABRICS.

Fabrics in chief value of flax, but in part of wool, are dutiable under Tariff Act July 24, 1897, c. 11, § 1, Schedule J, par. 346, 30 Stat. 181 [U. S. Comp. St. 1901, p. 1663], relating to goods "the component material of chief value" in which is flax, and not under Schedule K, par. 366, 30 Stat. 184 [U. S. Comp. St. 1901, p. 1666], relating to cloths "in part of wool." [Ed. Note. For cases in point, see Cent. Dig. vol. 15, Customs Duties, 88 88-96.]

2. SAME-CONSTRUCTION OF PROVISO.

The proviso in the silk provisions in Tariff Act July 24, 1897, c. 11, § 1, Schedule L, par. 391, 30 Stat. 187 [U. S. Comp. St. 1901, p. 1670], which prescribes that "all manufactures, of which wool is a component material, shall be classified and assessed for duty as manufactures of wool," relates only to goods composed of wool and silk, and not to fabrics of wool and flax.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Customs Duties, 88 109-114.]

On Application for Review of a Decision of the Board of United States General Appraisers.

The decision below reversed the assessment of duty by the collector of customs at the port of Boston on an importation by F. T. Walsh. See, for affirmance, 154 Fed.

Note U. S. v. Charles A. Johnson & Company (C. C.) 154 Fed. 752, U. S. v. Scruggs, Vandervoort & Barney Dry Goods Co. (C. C.) 147 Fed. 888, Benoit v. U. S. (C. C.) 150 Fed. 687, Rouss v. U. S., 120 Fed. 1021, 56 C. C. A. 684, and U. S. v. Slazenger (C. C.) 113 Fed. 524.

Asa P. French, U. S. Atty., and William H. Garland, Asst. U. S. Atty. Norman W. Bingham, for importer.

LOWELL, Circuit Judge. This is a proceeding to review a decision of the Board of General Appraisers imposing a duty upon woven fabrics called "lappings" at the rate of 50 per cent. ad valorem under paragraph 346 of the tariff act of 1897 (Act July 24, 1897, c. 11, § 1, Schedule J, 30 Stat. 181 [U. S. Comp. St. 1901, p. 1663]). The fabric has a warp of flax, and a weft, or filling, of wool. Flax is the component material of chief value. The government contends that the fabric is dutiable under paragraphs 366 and 391, Schedules K, L, 30 Stat. 184, 187 [U. S. Comp. St. 1901, pp. 1666, 1670]. The paragraphs in question read as follows:

"Par. 346. Woven fabrics or articles not specially provided for in this act. composed of flax, hemp, or ramie, or of which these substances or either of them is the component material of chief value, weighing four and one-half ounces or more per square yard, when containing not more than sixty threads to the square inch, counting the warp and filling, one and three-fourths cents per square yard; containing more than sixty and not more than one hundred and twenty threads to the square inch, two and three-fourths cents per square yard; containing more than one hundred and twenty and not more than one hundred and eighty threads to the square inch, six cents per square yard; containing more than one hundred and eighty threads to the square inch, nine cents per square yard, and in addition thereto, on all the foregoing, thirty per centum ad valorem: Provided, that none of the foregoing articles in this paragraph shall pay a less rate of duty than fifty per centum ad valorem. Woven fabrics of flax, hemp, or ramie, or of which these substances or either of them is the component material of chief value, including such as is known as shirting cloth, weighing less than four and one-half ounces per square yard and containing more than one hundred threads to the square inch, counting the warp and filling, thirty-five per centum ad valorem."

For earlier legislation, see Tariff Act Aug. 27, 1894, c. 349, Schedule J, par. 277, 28 Stat. 530; Tariff Act Oct. 1, 1890, c. 1244, Schedule J, par. 371, 26 Stat. 593; Tariff Act March 3, 1883, c. 121, Schedule J, 22 Stat. 507.

"Par. 366. On cloths, knit fabrics, and all manufactures of every description made wholly or in part of wool, not specially provided for in this act, valued at not more than forty cents per pound, the duty per pound shall be three times the duty imposed by this act on a pound of unwashed wool of the first class; valued at above forty cents per pound and not above seventy cents per pound, the duty per pound shall be four times the duty imposed by this act on one pound of unwashed wool of the first class, and in addition thereto, upon all the foregoing, fifty per centum ad valorem; valued at over seventy cents per pound, the duty per pound shall be four times the duty imposed by this act on one pound of unwashed wool of the first class and fifty-five per centum ad valorem."

For earlier legislation, see Tariff Act 1894, Schedule K, par. 283, 28 Stat. 530; Tariff Act 1890, Schedule K, par. 392, 26 Stat. 596; Tariff Act 1883, Schedule K, 22 Stat. 508.

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