IN· BE SA.VAGB. PROTl1:CTION OF ItIGIIT. The doctrine;ofpi'otection of trade-marks is based upon the broad principle of protecting the public from deceit;(a) and injunCJ tion will be granted to restrain its ul;le;(b) but to authorize aI)injunction plaintiff's title to its exclusive use should be clear and unquestionable,(c) and be clearly established.(d) The legal right of plaintiff and violation by defendant must be clear.(e) A person having appropriated to himself a particular label, Sign, or trade-mark is entitled to the protection thereof, and the courts will enjoin their use without authority,(/) unless he has acquiesced in its use by a third party.(g) If the representation of the trade-mark does not mislead the public, and is SUbstantially true, it will be entitled to protection.(h) A party lDay be restrained fr?ID the use of his own name in business, if he uses it for the purpose of deoeption ;(i) or so as to appropriate the good-will of a business established by others of that name.(j)-[ED (0) Matl!811 v.Flanagan, 2 Abb. Pr.(N.B.) 469. (D) Rowley v. HonghtQn. 7 Phlla. 39.' . (e) Ellis v. Zeilln. 42 91. (4) Wolfe v. Goulard. 18 How. Pr. 64; Corwin v. Daly, 7 Bosw.222; Colleen v. Brunton, 6 Mc. Lean, 256. (,) MerrImack. Manu!"g 00. v. Garner. 2 Abb. Pr.31B; Fetrldge v. Merchant. 4 Abb. PI'. 156; Samuel v. Berger, Id. 8B; Partridge v. Monck, 2 Barb. Ch. 101. (f) Collady v. Baird, 4 Pblla. 139; Coats ·· Holbrook, 2 Sandf. Cb. 586; Taylor v. Carpenter. Id.603. (8) neiaware, etc" Canal Co.v.Clark, 7Blatcht'. 112; Caswell Yo Davill, 68 N. Y. 223; Filley v.
Child, 16 Blatch!. 376; McLean v. Fleming, 96 U. U. S. 246. (h) MerldeD Brit. 00. v. Parker. 39 Conn. 450.
(') Decker v. Decker, 52 How. PI'. 218. COilauIt Benninger v. Wattles, 28 How. Pr.286; Holloway v. Holloway, .13 Bea.v. 209; Clark v. C1ark,26 Barb.76: Stonebraker v. Stonebraker, 33 Md.'252; Devlin v. Devlin, 61 Barb. 290; Rogers v,Nowlll, 6 Hare,326; Holmes v. HObnes, 37 Cono.278; Comstock v. White, 18 How. PI'. 421; Faber v. Faber, 49 Barb. 357; McLean 96U. S. 246; Probasco v.Boyon, 1 Mo. App.241. U) William Rogers Manu!"g Co. v. Rogers, etc .. Co. 11 Fed. Rep. 496. See GlIlIa v. Hallf7 Phila. 422; v. Bentlel. 14 Week. Rer..
630· .
In re
SAVAGE,
Bankrupt.
(District (/ourt, N· .D. New York. May 23, 1882.) BANKRUPTCy-DISCHARGE OF ASSIGNEE-NOTICE TO CREDITORS.
A step which in effect ends the bankruptcy proceedings should not he taken without notice to creditors. 80, where an assignee sought to renounce his trust by making application for his discharge, based on his own affidavit, alleging that no tangible assets have come into his hands, and that he has no informa· tion of any property belonging to the bankrupt, other than a chose in action in favor of the estate, held, that notice to creditors of such application, and the approval of the register in charge of the case, was necessary.
COXE, D. J. The assignee in this matter makes application for a discharge, based on his own affidavit, alleging that no assets have come into his hands, and that he has no information ·of atly property belonging to the bankrupt. The affidavit also contains, in substance, the averment that he was, at the tim.e Qf his apppintment j
720
FEDERAL REPORTER.
informed by the attorneys for the petitioning creditors that the pro· 'ceedings were commenced to enable them to attack a fraudulent transfer, but that no suit had been or would be instituted for that pur· pose. With the moving papers is the consent of the attorney for the petitioning creditors to the discharge. The assignee was appointed on the second of March, 1877, and the appointment was approved by the district jndge on the fifth of the same month. It is probable, therefore, that any right of action of the character named, existing in his favor, would now be barred by section 5057 of the Revised Statutes. No schedules were filed, and no complete list of creditors is found among the papers. There is; however, on file with the clerk the evidence of the agent of the bankrupt, in which appears a statement of all the creditors whose claims respectively exceed $250seven in all. With the exception of 5038, which is applicable to cases of resignation by the assignee, there is apparently, no provision.in the act for his discharge, except. that contained in . section 5{)96, as follows: "Preparatory to the final dividend, the assignee shall submit his acccount to the court and file the same, and give notice to the creditors of such filing, shall also give nutice that he will apply for a settlement of his account, and f01' a dischar.qe from all liability as assignee, at a time to be specified in such notice, and at such time the court shall audit and pass the accounts of the assignee, and the assignee shall, if required by the court, be examined as to the truth of his account, and if it is found correct he shall thereby be dis3harged from all liability as assignee to any creditor of the bankrupt."
Strictly construed the law furnishes no remedy where, in a case like the present, there is no property, no account to be examined, and where no meeting of creditors, after the first, has been held. It will be seen at a glance that a literal compliance with the requirements of the statute is impossible, but it should, I think, be followed as far as it is practicable to do so. Many of its provisions are directory merely. A step which in effect ends the bankruptcy proceedings should not be taken without notice to the creditors; the fact that it was contemplated might induce them to furnish the necessary funds to set the machinery of the law in motion. Great injustice might result, in many cases, from allowing the assignee to renounce his trust with· .out giving those most interested an opportunity to be heard. This application may be renewed on notice to the creditors who are known, and on a certificate of the register in charge that the
SPRAGUE V. SMITH'" GRIGGS MANUF'G CO.
721
assignee has in all things conformed to his duty under the bankrupt act; that his accounts, if any have been filed, are correct; that the dischargo can work no injury to the estate; and that, in the ophrion of the register it ought to be granted.
SPRAGUE.
v.
SMITII
&
GRIGGS MANUF'G
Co.
(Circuit Oourt, D. Oonnecticut. July 13,1882.) PATENTS FOR INvENTIONs-TIME WITHIN WHICH TO APPLY.
A patentee cannot be permitted to use for profit a machine which embodies a perfected Invention for a period of two years or more, aud tbeQ obtain a patent for the old machine by means of the addition of new improvemellts: but he may safely for profit such.a in its to perfect his machine, and apply for a patent when perfected.
Oharles E. Mitcheli, for plaintiff. George E ·. Terry and M. B. Philipp, for defendant. SHIPMAN, D. J. This is a bill in equity, founded upon the alleged infringement of letters patent No. 228,136, dated May 25, 1880, and letters patent No. 231,199, dated August 17, 1880, for improvements in machines for making buckle levers. Buckle levers are the part of a buckle which is so made as to' hold the strap by friction, being a substitute for the ordinary buckle tongue, which penetrates a hole in the strap. They are extensively used upon "arctic" rubber shoes. The two patents are for different parts of the same complex machine. It is not denied that the defendant has infringed the first, third, and fourth claims of No. 228,136, and the second, third, fourth, and fifth claims of No. Infringement of the fifth claim 'of the earlier patent, and of the first claim of the later patent, is denied. Although, as is apparent from the defendant's admission in regard to infringement, the two machines are very similar, they differ somewhat in form. In the plaintiff's machine, after the two slots have been punched in the blank, and it has been bent into a U shape, and has been thrust upon the end of a mandrel, a pair of movable dies "are advanced, one on either side of the mandrel and blank, on lines substantially at right angles to the flat sides of the U shape and of the mandrel. These dies have their engaging faces-that i8, the faces that engage with the U-sJ;1aped blank-of such form and contour that when aeting v.12,no.8-46