[2] Against Corning & Co. the charge of direct fraud is supported, at least partially, by the oral testimony of Wishman, Naumann, and Pfeiffer, and by the established sales methods of the Abels and of Corning & Co.'s New York "House Account," as orally testified to by Detective Gleason, and is supported completely and explicitly by the depositions of Craig and Blake. These men, with numerous others, were employed by Corning & Co. to go to saloons throughout the country and puff that company's liquors, so that salesmen of wholesalers and jobbers would find the way prepared for them. In the liquor world these puffers are called "missionaries." In many collateral particulars the testimony of Missionaries Craig and Blake is discredited. They in fact were not such glowing successes as boosters as they pictured themselves. Even through depositions it is easy to see their tendency to exaggerate. They might not hesitate at the lie direct. In short, they are the kind one would expect in liquor boosters. But on that basis their title to credence is at least as good as that of missionaries, salesmen, and bartenders, who testified in person. Craig's and Blake's positive statements respecting Corning & Co.'s sales methods remained unshaken on cross-examination. I accept those statements, first, because they accord with the facts already established by the oral testimony of witnesses hereinbefore named; and, second, because they are inherently probable in the light of the liquor trade situation shown by the record.

From the beginning of distillation in Canada there have been numerous kinds of whisky having widely different characteristics of proof, color, and flavor. In Canada the word "Canadian" would cover all whiskies as generally as would "American" in this country. For many years prior to 1891 plaintiff, a Canadian distiller, exported to this country and here built up a nation-wide trade in its brand “Canadian Club Whisky," which had a distinctive proof, color, and flavor, and was sold only in labeled bottles. In 1891 plaintiff duly registered here its trade-mark and label. Prior to 1908, when Corning & Co. began the acts complained of, other Canadian distillers were exporting here some amount of whisky having the general characteristics of "Canadian Club." But in 1908, as well as before and after, plaintiff had four-fifths of that trade, and the remainder was practically all taken by "Segram's" and "Gooderham & Worts'." Though since 1900 "Segram's" and "Gooderham & Worts'" put the word. "Canadian" on their labels, the word was so subordinated, and the labels were so distinctive in prominent names, colors, and designs, that no confusion arose. When drinkers at bars wanted "Segram's," they called for it by that name; when they wanted "Gooderham & Worts'," they called for it by that name, or simply "G. & W."; and when they wanted plaintiff's product, they asked for "Canadian Club," or simply "Canadian," or "Canuck."

In 1908, and before and since, there was a general practice among saloon keepers and bartenders of refilling bottles that bore well-known brands with cheaper whisky and then selling it over their bars, as the original contents. One witness testified that 90 per cent. of whisky retailers indulged in this practice. I find nothing in the record that

should cause me to reject his estimate. This refilling practice was a matter of common knowledge in the liquor world.

In 1908 Corning & Co. tried methods of distillation that were then new to that company. The result was a whisky which in proof, color, and flavor was a duplication of plaintiff's "Canadian Club." Corning & Co. called it "Canadian Type." As plaintiff's process and product were not patented, Corning & Co.'s act of making a like whisky was legitimate. But, instead of offering it in distinctively labeled bottles, so that drinkers who desired whisky of that proof, color, and flavor might know they were being given a competitive choice, Corning & Co. sold it only in bulk, and only to wholesalers and jobbers. At Abels', and at Corning & Co.'s New York "House Account," the detectives found Corning & Co.'s customers explaining to supposed retailers that no one could tell the difference between "Canadian Club" and "Canadian Type," and that the latter could be safely used in refilling "Canadian Club" bottles. The acts of those purchasers from Corning & Co. were in line with what Craig and Blake testified were the instructions of Corning & Co. to them. The oral testimony of other missionaries and salesmen, that they sold Corning & Co.'s said whisky only to those wholesalers and jobbers who insisted on having it, is not accepted, first, on account of the appearance and demeanor of those witnesses; and, second, because their declared attitude is improbable, in the light of established circumstances.

How was a trade of $75,000 a year built up and maintained, except by sales like those proven by the detectives and under a plan as testified to by Craig & Blake? All of plaintiff's witnesses, and all of Corning & Co.'s who on cross-examination testified on the subject, agreed that among drinkers at public drinking places no one had ever called for "Canadian Type" whisky, or had ever knowingly drunk it. There is no exception to this condition throughout the country, unless it is established by Corning & Co.'s New York depositions. The witnesses were of two kinds: First, saloon keepers, with negro trade, said some of their customers called for "Canadian Type." These were in the main the same witnesses whose oral testimony was rejected by Judge Hand. I cannot readily believe that their clientèle displayed a nice discrimination, which was found nowhere else in the land. Second, owners of "family liquor stores" testified that they sold some of Corning & Co.'s said whisky in bottles bearing "Canadian Type" labels. But that does not prove that a single ultimate consumer ever wanted, or knew that he was drinking, Corning & Co.'s said whisky.

When plaintiff notified Corning & Co. that "Canadian Type" was being palmed off by retailers for "Canadian Club," Corning & Co took the position that, so long as no misrepresentations were made to their immediate purchasers, the wholesalers and jobbers, they could sell as they pleased. I find that Corning & Co. had both actual and constructive notice that their said whisky was being sold to unknowing consumers by means of the refilling of "Canadian Club" bottles.

To the situation hereinabove found the equitable doctrine of contributory infringement plainly applies, in my judgment.

On barrel heads Corning & Co. stamped "Canadian Type." With the bulk sales Corning & Co. supplied engraved labels and "bar bottles" bearing the words "Canadian Type." These labels are made to simulate plaintiff's. There is no evidence respecting the quantity of labels and "bar bottles" furnished by Corning & Co. as compared with the quantity of said whisky sold. Of course there was no intent to deceive wholesalers and jobbers, and they were not misled. But the labels, etc., which informed them, manifestly were not furnished to retailers, or at least not conspicuously used by them, for consumers have never come to know of Corning & Co.'s "Canadian Type."

I find it unnecessary, on the facts of this case, to inquire whether the words "Canadian Type" in and of themselves constitute an infringement of plaintiff's trade-mark. If in the public mind the word "Canadian" had acquired a meaning indicating plaintiff's whisky, so that plaintiff has a proprietary interest in that geographical word, as the Elgin Watch Company has in "Elgin," and if "Canadian Type" means in the public mind "Imitation Canadian," then an interesting question might arise, whether a trader should be permitted to administer poison, even if he accompanies it with an antidote.

The decree will be limited to restraining the trespasses hereinabove found and to an accounting therefor.

THE OROPA.

(District Court, S. D. Alabama. January 15, 1919.)

No. 1707.

1. WAR 10(2)-EFFECT ON CIVIL RIGHTS SUITS BY OR AGAINST ALIEN ENEMIES.

The rights of an alien enemy as a party to a suit in a court of the United States are no different, whether he is a defendant or a plaintiff or libelant.

2. WAR 10(2)-SUIT BY ALIEN ENEMY-CONTINUANCE.

A libel in rem for wages against an Italian ship, by a seaman who was signed in Italy and came with the vessel to an American port, and who prior to suit became a resident and declared his intention to become a citizen of the United States, will not be dismissed because he is a subject of Austria-Hungary, but will be continued until the termination of the

war.

In Admiralty. Suit by Memon Giuseppe against the Italian bark Oropa. On plea by claimant. Plea overruled, and case continued. Howard & Pegues, of Mobile, for libelant.

Palmer Pillans, of Mobile, for claimant.

ERVIN, District Judge. This was a libel in which libelant seeks to recover his wages for the time he served on the Italian bark Oropa. It alleges that he was employed as a seaman October 3, 1917, at the port of Genoa, Italy, at the rate of 150 francs per month; that he sailed with said vessel from Genoa to the port of Mobile, and arrived here on March 22, 1918; that the vessel has been lying in the harbor

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

of Mobile for more than 3 months, and has not yet been provided with cargo, nor has she made arrangements to sail from this port; that he has demanded his wages, but the master refused to pay him; that he has been employed 8 months and 22 days; and that there is now due him in American money $75.30.

[1] The libel was filed on June 26, 1918. On August 2, 1918, there was filed by B. Andrea Ventura, as claimant of the Italian bark Oropa, a plea setting up that libelant was born in and is a citizen and subject of the empire of Austria-Hungary, with whom the United States is at war; that the said libelant was an alien enemy at the time of the happening of the matters and facts set out in said libel, and at the time of the bringing of the said suit. Wherefore the said libelant was then, and still is, a public enemy of the United States, and ought not to have and maintain any action in any court of the United States.

The matter now comes on to be heard on the plea, and on the hearing it is agreed that the matters of fact set out in the plea are true. In addition to this agreement, there was offered in evidence a declaration of intention for naturalization filed in the District Court of the United States at Mobile, Ala., by Memon Giuseppe, the libelant, on June 25, 1918, in which the statement is made that petitioner was born in Trieste, Italy, on the 29th day of October, 1896, and now resides at No. 8 Government street, Mobile, Ala.; that he emigrated to the United States of America from Italy on the vessel Oropa; that his last foreign residence was Trieste, Italy.

The question for determination is whether the libel should be dismissed, or whether an order should be made continuing the case until the conclusion of peace.

It is contended by proctor for claimant that the libel should be dismissed, and he supports this contention by citation of numerous authorities, all of them, however, old cases. On the other hand, the proctor for libelant contends that the severity of the old rule, has been so much relaxed by the modern authorities that the better rule, and one supported by the later authorities and better reason, is that the courts will look to the justice of the cause, even where an alien enemy is concerned, and will not dismiss the suit where justice requires the preservation of the rights of the alien, but will continue it during the existence of the state of war.

Claimant insists that an alien enemy has no standing in the courts of this country during hostilities. He, however, concedes that under the authorities this rule has been departed from in two specific instances, namely, where the suit was brought before the declaration of war, and, second, where the suit was brought by an alien enemy, who is a resident of this country at the time of bringing the suit; that in these two instances the court should make an order continuing the cause until the conclusion of peace.

Proctor for claimant, in criticizing some of the recent cases cited by libelant, urged that there was a distinction between a suit brought by an alien enemy and a suit brought against him.

In Johnson v. Thirteen Bales, Fed. Cas. No. 7,415, 13 Fed. Cas. page 839, the following language is used in the opinion by Judge Van Ness:

"Adopting this as the law, it becomes immaterial to inquire whether the claimants must be viewed as plaintiffs or defendants-whether the proceeding is by or against them."

It is true that in the case before Judge Van Ness he held that alien enemies had no standing in court, but I think he correctly held that there was no difference whether the alien enemy appears as plaintiff or defendant-that the same rule should be applied to him in either aspect. I therefore see no difference to be applied to a plaintiff or a defendant who is an alien enemy; but, if the courts should preserve the rights of an alien enemy defendant, they should equally preserve the rights of an alien enemy plaintiff or libelant.

[2] Among the cases cited by proctor for libelant as showing the trend of recent authorities is that of E. Lutz v. Van Heynigen Brokerage Company, 80 South. 72, from the Supreme Court of Alabama, decided October, 1918, and not yet officially reported, where it is said:

"As affecting civil rights and liabilities, it is said to be clear law that it is not his nationality, but the fact that he carries on business or voluntarily resides in an enemy country, that makes an alien enemy."

If this citation is correct, then it seems to me the present libel should not be dismissed, because, taking the facts as they appear in the libel, which was duly sworn to, and in the declaration of intention for naturalization, it appears that this libelant was signed as a seaman in Genoa, Italy, and served on the vessel, coming to Mobile from there, and that on June 25th, the day before the libel was filed, he filed his declaration of citizenship, giving his then residence as No. 8 Government street, Mobile, Ala.

One of the later cases cited by libelant is Posselt et al. v. D'Espard et al., from the Chancery Court of New Jersey, opinion by Lane, Vice Chancellor, found in 87 N. J. Eq. 571, 100 Atl. 893, where the Vice Chancellor holds that the cause should be continued pending the signing of peace, and bases this contention largely upon the proclamation issued by the President; and another is Plettenberg-Holthaus Co. v. I. J. Kalmon & Co. (D. C.) 241 Fed. 605, by Speer, District Judge, in which he says, in discussing the reason for refusing to permit aliens to sue, that if the alien enemy prevails, and obtains judgment, it would obviously add the sum he recovers to the resources of the power of which he is a subject. He then proceeds to hold that a suit brought by an alien enemy before the declaration of war will not be dismissed, but will be continued pending hostilities. While discussing the status of alien enemies, he says:

"Besides, with the evolution of law, the courts of the English-speaking peoples exhibit greater magnanimity in affording opportunity of redress to alien enemies. Notwithstanding a ruling of Sir William Scott, afterwards Lord Stowell, made in 1799, to the contrary, the British prize courts of to-day hear any alien enemy asserting rights under a convention of the Hague Peace Conference. Shall the courts of the United States then wholly deny a hearing to one, not such when he here sought redress, but who has since become an alien enemy? To do this would not, in my judgment, accord with the spirit of our institutions, nor with the spirit of our government, which disclaimed hostilities to the German people when it proclaimed war in defense of freedom and of a common humanity."