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II, 1888, Tequir. '1ng'WM aiter,itsb'l'idge over acertaiuli'iierso'that it would not'obstruct navigation. al}0mld l)le pl,II'Pose l/.ad expir.ed, the company was dlspos86ssed of. Its property, lDcludlng thebrldge, and receivers thereof \'I'ere appointed, in . 1j.uu;dfuhlli '.'1'0.c.eed'jng s. inil.t1tUltl.a bym.c . ' ol'tgage bondhOld.er.8" 'l'h6' Botke not havin.g . with, an against t:he and the company , to recover, tb,e fine Imposed in such caiel!.. Held, that the . , w'duldDot'l)eheld liable,1l8 'nQriOti(!6:bBd been .86rveQ in their oftlclal ea·" to they had. notice: company bad been alter the bridge. &/'. the statute required the notice to be S01"\100 on i lcorporatlonownin!f' or' c.ontrolllllgthe :objectionable' structure; and ,: :tb,e .fact it bad dispos86ssed gf its . property 'by Judicia! proceedlligs was a sUftl.clent excuse tot ita non-colDpbance with the notice. ., p.
, 'AtL8i,t;,!, ;:Thi'; uri action of debt: founded· on the ninethand tenth eectionsof the apprdp'rla.tion ofAugustU, 1888, (25 St. at Large, 424, 425;) The decllirlit>lon: shows that on 23, 1889'; notice was served on the St. Louis-t'Arkansus&Texa:g :Railroad Company'bj the honorable J'of'wai:' requiring it to' over the Francis river . L 1889, sothot·it would not be an obstruction to navigation; tMt June 24. 1889, the'defendants Fordyce and Swanson were appointelti 1lecei\'ers of the St. Uouis, ArKansss& TexlisRailway Company in the suit to foreclose certainmbrigages on the property of the rail'foad cClrfiln'Jliyf ;brough t by botldholdel'$, 'Imd that, as such retJrimedilltely tMk possession.of the' St. Louis, Arkansas. & Texas RaHrolidi1inciuding the bridge in question, and have since condnuedtooperate the road under the'orderso( this court; that 'the alterAtions WE're not'made as requirildby t:he order of the honorable secretary ·ofwal', and:itfoonsequence of suchdelault a penalty of $500 permontb, .as declltre'{I1 lbythesta.tute, is demanded.· The actiohis brought against the receIve}'s,; 'Fordyce and well as against the railway com'pany, ana· ttUofthe defendlmtsl1av4! 'denlurred' to' the' declaration. Geb.. Reyhbld8; U. S. , Samuel H. West, for THAYER, J., (oraUy, after Btating the Jacf.8 (l8 abnve.) The receivers clearly are not liable for the penalty imposed by the statute, because they have never been notified by the secretary of war to make any alteration in the bridge. It is wholly immaterial that the receivers had notice, prior to their appointment and acceptance of the office, that the railway company had been notified to make alterations in the bridge. The statute on which the prosecution is based rllquires notice to be served on the person or corporation owning or controlling the objectionable structure, be/ore such person or corporation can be held liable to a fine, and it is not pretended that the secretary of war caused any notice to be served on
115 Fordyce and Swanson in their capacity as receivers; henre they cannot l;t,elp, in this propeeding.:The oourt' iaalso: of the, opinion that the railway,"companyjsnoHia:ble',((br,the penalty. he.rein, aneu for. By_ virtue of the law under which lhe secretary of war acted, the railway 1, 1889, to ,alter the bridge. i They were company hadqntil not in default until that time arrived. The fact that the company was of its property,' including the bridge incontrol1ersy, by diU" by, the, mortgage bondholqers, on June 24, 1889, .and.was for that,teasonunable to comply with the order of the war, is, in rilyjudgrnent, asufliciePtexcuse for pliancewlth the order: It may beoonceded that, iftheraUway companyha,t1 to 'alter befo:re a given ,date,.it wotlldbe no for the non-performance of Buchcontract that within the time limited it had beendispoS8essed of its' property. But there is a marked duties assuII;led .by contract and,dpties imposed, by o.peration oHaw. A, excusedtfOi"tbe ,non-Perforinanceofdhties of the latter, Class, when he would not be excused for the non-pet'formance'of duties assumed by contract. The duty imposed on the railroad company in this instance was aduty'itnp6sed against its. willby,operation of ·law, and !it is, in'iny judgment,a sufficient excuse for thenon-performl1nceof that duty that: it was deprived of themeatls of executing the war· by judi<iial proceedings taken against it by. tbemortgage. bondhold·, ers·. The fact that it was dispossessed orits property, not voluntarily,. but against its will,. by decree;oi' 6 court Ofcompeteilt jurisdiction, must. be held to bea valid excuse for non-compliance with the order of. the· fnct. to be secretary of .war. If the honorable· secretary had 08ill;ed. bronghttothe attention ofthe cOUTt'that the .bridge was'an obstruction tonav,igatioD, and that the railway company had been ordered to alter it, it rwottlli cleaJ1lyhave·beenthe duty of the court tohave'orderedan alteration ofthe structure, ·bf· itsreceivera, out Of the income received by them from.·the operation of the road. But no has been taken by the government.inbehalf of tbe public. For· the reasons thus 1 concludethl1t neithe,r the receivel'8nor the railway eompahyare liable for the,:pebalty ,sued forran.dthedemurrera to the. declaration· are accordingly sustained... I
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DDEBAL RBlPORTEB,
vol; 43.
SomTB :ANONYME DE' LA . DIS'l'ILLERIE DE ". LA LIQUEUR BENEDi:cr.iomE nJi '. ((L'ABBAYE DE FECAMP'tI. WESTERN DISTILLING CO. .' (C4lI'eu1.t Courl,E. D. 'Ml'8ourl, E. D. September 8,1890.)' TIUDE·Muxs""""FALSE, REPRESENTATIONS-INJUNCTION.
, . 'the tba.t .tbemanufacturer of a cordial made to a, recipe obtained from the, Benedictine monks, attaches to the bottles lllbeis and '.;: 'advertisements bearing Latin and French phrases, which translated are, "Genuine Liquor oftlle Bep.edic,yine M(jnks of the Abbey of .Fecanw, "does preclude relief against one who manufactures and puts upon the market a cord.ial .; In such tortn aJld gulse.aato clearly indicate that it is the identioal article sold 1:lY .· I),ot repres6ntationstbat the. monks .. arelltill 'engaged in its manufacture at Fecamp, but tbat itongmated wlth them ",esPfldaU.jrwhllre one of the. ,ad.v:ertiimllDts shows that the ool'dial1s manufactured , by ooI!1Plainant, a . ,
InE:quity. On pill for inj,upction. , Bulkley HubbeUand Frederick N. .Tud801l., for complainflnt. & Schnurmacher, ,for defendant. THAYER,J.This case, upon the evidence, presents the following state facts:' The. complainant is a "French corporation, located· at Fe.. camp,Normandy, in France, and is engaged in the manufacture and sale is a large deof it cordial or liquor called "Benedictine," for which lllsnd:in:the United States, ias'well as in France and in many other foreigll<conritries. The liquor1is:madeof a decoction of,herbs that' grow on the, heights of Normandy and the best cognac, according to 8 secret recipe,· formerly belonging to the order of Benedictine monks, who founded and for several centuries maintained an abbey at Fecamp. Complainant'sdistillery for the manufacture of the cordial iSllocated on lands formerly belonging to the Benedictine monks, too the abbey in question. After the dissolution of the orders alid the sequestration of theirpropel'ty by the first republic fof France,thebook -containingthe recipe for Benedictine, as well as many other recipes., by gift 0( one:of the monks of the abbey Of Fecarnp,· passed into the pOssession of thei maternal grandfhtherof A. La Grand, ,St.;the present directeur general of the complainant company'. , Some time prior to'theiyear 1863 the book, by inheritance, became the property of Mr. Le Grand himself, ancil. in that year he began the manufacture of the liquor or cordial at Fecamp, according to the formula of the monks. The formula has been kept secret in his family, and is known only to Mr. La Grand and his two sons, who are subdirectors of the complainant. Since the year 1866 the liquor has been sold under the name of "Benedictine," and is widely known by that name, and has been put on the market in peculiar shaped bottles, provided with labels, seals, wrappers, ete., ofa distinctive character; the labels, seals, etc., so in use have also been filed and registered in the proper offices as a trade-mark, both in France and in this country. Mr. Le Grand appears to have conducted the business of manufacturing and selling Benedictine at Fecamp until 1876, when a corpora-