said: "Names of such articles cannot be took in his sons and changed the firm name adopted as trademarks, and be thereby ap- to “John Turton & Sons.” Some confusion propriated to the exclusive right of any had arisen, and plaintiff's contended that one; nor will the incorporation of a company there was no necessity for defendants to use in the name of an article of commerce, with their own names. out other specifications, create any exclusive Lord Esher said: “Therefore the proposi. right to the use of the name.”

tion goes to this length: That if one man is The principle that one corporation is not in business, and has so carried on his busientitled to restrain another from using in ness that his name has become a value in the its corporate title a name to which others market, another man must not use his own have a common right, is sustained by the name. If that other man comes and carries discussion in Columbia Mill Co. v. Alcorn, on business he must discard his own name 150 U. S. 460, 37 L. ed. 1144, 14 Sup. Ct. and take a false name. The proposition Rep. 151, and is, we think, necessarily appli- seems to me so monstrous that the statement cable to all names publici juris. American of it carries its own refutation." Cereal Co. v. Eli Pettijohn Cereal Co. 72 Fed. And Lord Macnaghten said in Reddaway 903, 22 C. C. A. 236, 46 U. S. App. 188, 76 v. Banham [1896] A. C. p. 220: "I am quite Fed. 372; Hazelton Boiler Co. v. Hazelton at a loss to know why Turton v. Turton was Tripod Boiler Co. 142 Ill. 494, 30 N. E. 339; ever reported. The plaintiff's case there was Monarch v. Rosenfeld, 19 Ky. L. Rep. 14, 39 extravagant and absurd.” And see Meneely S. W. 236.

v. Meneely, 62 N. Y. 427, 20 Am. Rep. 489; It is said that the use of the word Meriden Brittannia Co. v. Parker, 39 Conn. "Remington” in the name "Remington-450, 12 Am. Rep. 406. Sholes” was unnecessary,-as if necessity In our opinion the Remingtons and Sholes were the absolute test of the right to use. made a reasonable and fair use of their But a person is not obliged to abandon the names in adopting the name “Remingtonuse of his name or to unreasonably restrict Sholes” for their machine, and in giving that it. The question is whether his use is rea- name to the corporation formed for its mansonable and honest, or is calculated to de- ufacture and sale. ceive.

The formation of a corporation as an ef“It is a question of evidence in each case fective form of business enterprise was not whether there is false representation or not.” only reasonable in itself, but the usual means Burgess v. Burgess, 3 De G. M. & G. 896. in the obtaining of needed capital. And as

The circuit court of appeals in the present Wallace, J., said: “It was natural that case quotes with approval from the concur- those who had invented the machine, and ring opinion of Wallace, J., in R. W. Rogers given all their time and means in introducCo. v. William Rogers Mfg. Co. 17 C. C. A. ing it to the public, when they came to or576, 35 U. S. App. 843, 70 Fed. 1019, that “a ganize the corporation which was to reprebody of associates who organize a corpora- sent the culmination of their hopes and eftion for manufacturing and selling a particu- forts, should choose their own name as the lar product are not lawfully entitled to em corporate name. In doing so I think they ploy as their corporate name in that busi- were exercising only the common privilege ness the name of one of their number when that every man has to use his own name in it appears that such name has been inten- his own business, provided it is not chosen as tionally selected in order to compete with a cover for unfair competition. They did not an established concern of the same name, choose the complainant's name literally, or engaged in similar business, and divert the so closely that those using ordinary discrimlatter's trade to themselves by confusing the ination would confuse the identity of the two identity of the products of both, and leading names, and that differentiation is sufficient purchasers to buy those of one for those of to relieve them of any imputation of fraud.” the other. • The corporators chose The name “Remington-Sholes Company” the name unnecessarily, and having done so is not identical with, or an imitation of, for the purpose of unfair competition, can- "Remington Standard Typewriter Comnot be permitted to use it to the injury of pany,” or “Remington Typewriter Comthe complainant."

pany,” or “E. Remington & Sons.” DefendThis, of course, assumes not only that the ant’s marks “Rem-Sho,” “Remington-Sholes name selected was calculated to deceive, but Co., Mgrs., Chicago.” are not identical with, that the selection was made for that pur- or an imitation of, complainant's marks pose.

"Remington;" Large Red Seal; “Remington In Turton v. Turton, L. R. 42 Ch. Div. 128, Standard Typewriter, manufactured by plaintiffs had carried on the iron business as Wyckoff, Seamans, & Remington, Ilion N. Y., “Thomas Turton & Sons.” Defendant began U. S. A.;" "Remington Standard Typethe same business as John Turton, then writer." traded as John Turton & Co., and finally The use of two distinct surnames clearly

differentiated the machines of defendant in defendant's conduct in their use constifrom those of complainant, and when defend- tuting unfair competition, or calling for the ant's cards, signs, catalogues, instructions imposition of restrictions lest actionable into agents, etc., are considered, it seems to us jury might result, as may confessedly be that the record discloses, to use the language done in a proper case. of Mr. Justice Field in the Goodyear Case, Decree of Circuit Court of Appeals rea persistent effort

effort on

defendant's part versed; decree of Circuit Court also reversed, “to call the attention of the public to its own and cause remanded to that court, with a manufactured goods, and the places where direction to dismiss the bill. they are to be had, and that it has no connection with the plaintiff.” Doubtless the

(198 U. S. 144) Remington and Sholes, in using the name “Remington-Sholes,” desired to avail them- EDWARD JASTER, Senior, Piff. in Err., selves of the general family reputation attached to the two names; but that does not

F. M. CURRIE. in itself justify the assumption that their purpose was to confuse their machines with Judgment-full faith and credit. complainant's; or that the use of that name was in itself calculated to deceive. Reming. The refusal of the Nebraska courts to permit ton and Sholes were interested in the old an action to be maintained on an Ohio judg. company, and Remington continued as gen- ment denies the full faith and credit guaran. eral manager of the new company. Neither

teed by U. S. Const. art. 4, § 1, when based

on the alleged fraud in acquiring jurisdicof them was paid for the use of his name, and

tion of the defendant in the Ohio suit, in neither of them had parted with the right to that the service of process therein was only that use. Having the right to that use, inade possible by giving defendant notice in courts will not interfere where the only con- Nebraska that plaintiff's deposition would be

taken in Ohio for use in an action for the fusion, if any, results from a similarity of

same cause then pending in Nebraska, in the the names, and not from the manner of the

hope that defendant would attend, and use. The essence of the wrong in unfair would delay his return to Nebraska after competition consists in the sale of the goods the deposition was taken long enough to per

mit service. of one manufacturer or vendor for those of another; and if defendant so conducts its

[No. 205.] business as not to palm off its goods as those of complainant, the action fails. As observed by Mr. Justice Strong in the Argued April 7, 10, 1905. Decided April 24,

1905. leading case of Delaware & H. Canal Co. v. Clark, 13 Wall. 311, 20 L. ed. 581, "Purchasers may be mistaken, but they are not de INTERROR to the Supreme Court of the ceived

State of will not enjoin against telling the truth.” which affirmed a judgment of the District And by Mr. Justice Clifford, in McLean v.

Court of Custer County, in that state, in Fleming, 96 U. S. 245, 24 L. ed. 828:

“A

favor of defendant in an action on a judg. ment of an Ohio Court. Reversed.

. court of equity will not interfere when or

See same case below (Neb.) 94 N. W.995. dinary attention by the purchaser of an article would enable him at once to discriminate

The facts are stated in the opinion.

Messrs. 0. A. Abbott and J. R. Webster the one from the other.” And by Mr. Justice

for plaintiff in error. Jackson in Columbia Mill Co. v. Alccrn, 150 U. S. 460, 37 L. ed. 1144, 14 Sup. Ct. Rep. Rose for defendant in error.

Messrs. E. J. Clements and Hallecke F. 151: “Even in the case of a valid trademark the similarity of brands must be such as to mislead the ordinary observer.” And

Mr. Justice Holmes delivered the opinion

of the court: see Coats v. Merrick Thread Co. 149 U. S. 562, 37 L. ed. 847, 13 Sup. Ct. Rep. 966; | in error in Nebraska upon a judgment re

This is an action brought by the plaintiff Liggett & M. Tobacco Co. v. Finzer, 128 U. covered by him against the defendant in S. 182, 32 L. ed. 395, 9 Sup. Ct. Rep. 60.

error in Ohio. To this the defendant pleads We hold that, in the absence of contract, that the plaintiff had brought a previous acfraud, or estoppel, any man may use his own tion in Nebraska for the same cause, and name, in all legitimate ways, and as the afterwards served notice upon the defendwhole or a part of a corporate name. And, ant's attorney that the plaintiff's deposition in our view, defendant's name and trade-would be taken in Ohio at a certain place on mark were not intended or likely to deceive, September 5, 1899, for use in the cause; that and there was nothing of substance shown defendant was advised by his attorney to be

present, and went to Ohio for that purpose It will be observed that there was no misonly; that the deposition was taken and the representation, express or implied, with redefendant then went to his father's house in gard to anything, even the motives of the the same county for the night of September plaintiff. The parties were at arm's length.

. 5, and that on September 8, in the early The plaintiff did not say or imply that he morning, being the earliest time convenient had one motive rather than another. He for leaving his father's for Nebraska, he took simply did a lawful act by all the powers the train back. The writ in the Ohio suit enabling him to do it, and that was all. was received and served on September 7. It Therefore the word "fraud” may be disis alleged that the notice to take the deposi-carded as inappropriate. The question is tion was simply a ruse, and was given for the whether the service of a writ, otherwise law. purpose of enticing the defendant into Ohio, ful, becomes unlawful because the hope for and for no other reason. There was a mo- a chance to make it was the sole motive for tion to set aside the service in the Ohio court, other acts tending to create the chance, which was overruled (66 Ohio St. 661, 65 N. which other acts would themselves have been E. 1127), but the defendant alleges that at lawful but for that hope. We assume that that time he had not discovered what he motives may make a difference in liability. styles the fraud perpetrated upon him. There But the usual cases where they have been was a general demurrer to this answer, held to do so have been cases where the imwhich was overruled, and judgment was

mediate and expected effect of the act done given for the defendant. This judgment was

was to inflict damage, and where therefore, affirmed by the supreme court of Nebraska. (94 N. W. 995), and thereupon the case was

as a matter of substantive law, if not of brought here on the ground that due faith pleading, the act was thought to need a justi

fication (see Aikens v. Wisconsin, 195 U. S. and credit had not been given to the Ohio record, as required by art 4, § 1, of the Consti- 194, 204, 25 Sup. Ct. Rep. 3, 49 L. ed. 154), or tution of the United States. Huntington v.

else where the intent was to do a further and Attrill, 146 U. S. 657, 36 L. ed. 1123, 13 Sup. unlawful act to which the act done was the Ct. Rep. 224; Jacobs v. Marks, 182 U. S. 583, means. Swift v. United States, 196. U. S. 45 L. ed. 1241, 21 Sup. Ct. Rep. 865.

375, 396, 25 Sup. Ct. Rep. 276, 49 L. ed. 518. The supreme court of Nebraska affirmed

It is hard to exhaust the possibilities of a the judgment on the ground that in that general proposition. Therefore it may be state the distinction between actions at law dangerous to say that doing an act lawful in and suits in equity had been abolished, that itself as a means of doing another act lawthe decision in Christmas v. Russell, 5 Wall. ful in itself cannot make a wrong by the 290, 18 L. ed. 475, was limited to legal de combination. It is enough to say that it fenses (5 Wall. 304, 306, 18 L. ed. 479, 480), does not usually have that result, and that and that fraud would have been an equitable the case at bar is not an exception to the defense to the judgment in Ohio, and there general rule. We must take the allegations fore was in Nebraska. We take up the ques- of the answer to be true, although they are tion on this footing, without stopping to dis- manifestly absurd. The plaintiff could not cuss the premises, which we find it unneces- have known that the defendant's lawyer sary to do, and we will assume that, on gen. would advise him to go to Ohio, and that the eral demurrer, a plea that the judgment was defendant would go to his father's house, inobtained by fraud would be a good equitable stead of to Nebraska, when his business was plea. See 5 Wall. 303, 18 L. ed. 479.

over. But we assume, as far as possible, It is assumed that the service of the writ that the anticipation of these things was the iu Ohio would have been good but for the al sole inducement for giving the notice and leged fraud. Smythe v. Banks, 4 Dall. 329, taking the deposition. Still the notice was 1 L. ed. 854, Fed. Cas. No. 13,134; Chaffee true, and the taking of the deposition needed v. Jones, 19 Pick. 260. That point must no justification. It could be taken arbitrahave been decided by the Ohio courts. More rily, because the plaintiff chose. On the other over, the facts constituting the fraud are set hand, the defendant could be served with forth and gain no new force from the vi. process if he saw fit to linger in Ohio. That tuperative epithet. If the inducement to en- also the plaintiff could do arbitrarily, beter the state of Ohio furnished by the notice cause he chose, if he thought he had a case. to take a deposition there was made fraudu. He arbitrarily could unite the two acts, and lent by the motive with which the notice was do the first because he hoped it would give given, then there was fraud; otherwise there him a chance to do the last. was not. On the face of the answer fraud Judgment reversed. is simply the pleader's conclusion from the specific facts. The question is whether the Mr. Justice McKenna and Mr. Justice motive alleged can have the effect supposed. Day concur in the result.

A

(198 U. S. 141) NICHOLAS J. STEIGLEDER, and Chris- after proof was taken, the defendants moved tina Steigleder, His Wife, Appts., the court to dismiss the suit for want of 0.

jurisdiction, the reason assigned in the moKATHERINE AUGUSTE MCQUESTEN. tion being only that the plaintiff was, and

,

for a long time prior to the commencement of Federal courts -jurisdiction - diverse citi- the suit had been, a “resident” of the state zenship.

of Washington, while the defendants were

"residents” of the same state. 1. The question of the jurisdiction of a Federal T'he motion to dismiss was denied, and the

circuit court, invoked on the ground of di- case went to a decree in favor of the plainversity of citizenship, may be raised by a tiff upon the merits. motion to dismiss based upon the proofs taken by the master to whom the cause has directly to this court, the question of juris

The defendants were granted an appeal been referred. 2. Evidence bearing on the question of the diction being certified.

citizenship of the respective parties to a The averment in the bill that the parties suit in a Federal circuit court must be ex- were citizens of different states was suffiamined on appeal by the Supreme Court of cient to make a prima facie case of jurisdicthe United States, although the motion to dismiss for lack of jurisdiction in the court tion, so far as it depended on citizenship. below did not distinctly aver the absence of While under the judiciary act of 1789 an diverse citizenship, but merely charged that issue as to the fact of citizenship could only the parties were residents of the same state, be made by plea in abatement when the where the circuit court treated the question of jurisdiction as raised, and passed upon it. pleadings properly averred citizenship, the

act of March 3d, 1875 (18 Stat. at L. 472, [No. 227.]

chap. 137, U. S. Comp. Stat. 1901, p. 508),

made it the duty of the circuit court, at any Submitted April 14, 1905. Decided April time in the progress of a cause, to dismiss 24, 1905.

the suit if it was satisfied either that it

did not really and substantially involve a PPEAL from the Circuit Court of the dispute or controversy properly within the

United States for the District of Wash-jurisdiction of the court, or that the parties ington, certifying the question of the juris- were improperly or

improperly or collusively made or diction of that court, invoked on the ground joined, either as plaintiffs or defendants, for of diversity of citizenship. Jurisdiction of the purpose of creating a case cognizable or the Circuit Court sustained.

removable under the act of Congress. ShepThe facts are stated in the opinion.

pard v. Graves, 14 How. 505, 14 L. ed. 521; Messrs. John E. Humphries and George Williams v. Nottawa, 104 U. S. 209, 211, 26 B. Cole for appellants.

L. ed. 719, 720; Farmington v. Pillsbury, Messrs. James B. Howe and George Mc- 114 U. S. 138, 143, 29 L. ed. 114, 116, 5 Sup. Kay for appellee.

Ct. Rep. 807; Little v. Giles, 118 U. S. 596,

602, 30 L. ed. 269, 271, 7 Sup. Ct. Rep. 32; Mr. Justice Harlan delivered the opinion Morris v. Gilmer, 129 U. S. 315, 326, 32 L. of the court:

ed. 690, 694, 9 Sup. Ct. Rep. 289. This proThe bill filed in the circuit court by the vision of the act of 1875 was not superseded plaintiff, McQuesten, alleged her to be "a by the judiciary acts of 1887, 1888, and is citizen of the United States and of the state still in force. Lehigh Min. & Mfg. Co. v. of Massachusetts, and residing at Turner's Kelly, 160 U. S. 327, 339, 40 L. ed. 444, 449, Falls, in said state," while the defendants, 16 Sup. Ct. Rep. 307; Lake County v. DudSteigleder and wife, were alleged to be "citi-ley, 173 U. S. 243, 251, 43 L. ed. 684, 688, zens of the state of Washington, and resid. 19 Sup. Ct. Rep. 398; Defiance Water Co. ing at the city of Seattle, in said state.” v. Defiance, 191 U. S. 184, 194, 195, 48 L. ed.

The object of the suit was to obtain a de- 140, 144, 145, 24 Sup. Ct. Rep. 63; Minnesocree adjudging defendants to be trustees for ta v. Northern Securities Co. 194 U. S. 48, the plaintiff in respect of certain real estate 66, 48 L. ed. 870, 879, 24 Sup. Ct. Rep. 598. in King county, state of Washington. The The motion, based upon the proofs taken by defendants demurred to the bill for want of the master, to dismiss the cause, was, thereequity. The demurrer was overruled, and fore, an appropriate mode in which to raise the defendants answered, without making the question of the jurisdiction of the cirany issue as to the citizenship of the par- cuit court. ties, but denying the alleged trust, and aver- It is to be observed that the grounds asring that there had been a final settlement signed for the motion to dismiss the cause, between the parties before the institution of taken alone, did not distinctly raise any the suit in respect of all the matters in dis- question concerning the absence of diverse pute.

citizenship; for the motion only stated that The cause was referred to a master, and,' the plaintiff and the defendants were, re

Everhart v. Huntsville Female College, 120 1 United States for the District of Porto

spectively, residents of the state of Wash- | 2. Failure to except to the overruling of a ington. But it has long been settled that motion in arrest of judgment waives the obresidence and citizenship were wholly dif

jection that the grand jurors were selected

by an unauthorized official, even assuming ferent things within the meaning of the that sucb objection was raised in time by Constitution and the laws defining and regu- such a motion. lating the jurisdiction of the circuit courts of the United States; and that a mere aver

(No. 183.] ment of residence in a particular state is not an averment of citizenship in that state Submitted March 15, 1905. Decided May 1, for the purposes of jurisdiction. Parker v.

1905. Overman, 18 How. 137, 15 L. ed. 318; Rob. ertson v. Cease, 97 U. S. 646, 24 L. ed. 1057;

N of

N U. S. 223, 30 L. ed. 623, 7 Sup. Ct. Rep. 555; Timmons v. Elyton Land Co. 139 U.S. 378, Rico, to review a conviction of conspiracy. 35 L. ed. 195, 11 Sup. Ct. Rep. 585; Denny

Affirmed. v. Pironi, 141 U. S. 121, 123, 35 L. ed. 657, This writ of error brings up for review 658, 11 Sup. Ct. Rep. 966; Wolfe v. Hartford a final decree of the district court of the Life & Annuity Ins. Co. 148 U. S. 389, 37 L. United States for the district of Porto Rico, ed. 493, 13 Sup. Ct. Rep. 602.

by which, in conformity with the verdict But the circuit court treated the question of a jury, the plaintiffs in error, Rafael of jurisdiction as raised, and passed upon Rodriguez and Euripides Rodriguez, were it. We must therefore look at the evidence sentenced to confinement in the penitentiary, bearing on that point. Defiance Water Co. —the former, for three years at hard labor; v. Defiance, 191 U. S. 184, 194, 195, 48 L. the latter, for two years,—and to pay a ed. 140, 144, 145, 24 Sup. Ct. Rep. 63. The fine of $500. evidence warrants the conclusion reached by The indictment contained two counts. The that court, namely, that the plaintiff was, first count charged that on the first day of for many years prior to the commencement November, 1902, in the district of Porto of the action, a citizen of Massachusetts, Rico, the defendants unlawfully conspired and that her residence in the state of Wash-together to steal, embezzle, and purloin the ington, at and before the suit was brought, moneys of the United States; and that, to is not shown to be otherwise than tempo- effect the object of such conspiracy, Rafael rary, without any fixed purpose to abandon Rodriguez, on the above date, being a postcitizenship in Massachusetts. So far as ap- master of the United States, did feloniously pears from the record, she was, when the steal, embezzle, and purloin out of certain suit was brought, a citizen of Massachu- letters which came to his possession as postsetts.

master, and which had not then been delivThe Circuit Court did not err in taking ered to the party to whom they were direct jurisdiction of the cause, and it will be so ed, divers bank notes and United States certified.

notes, the property of the United States,

of the value of $560. The second count (198 U. S. 156)

charged that the defendants (Rafael RodRAFAEL RODRIGUEZ and Euripides Rodriguez being postmaster, as aforesaid) on riguez, Piffs. in Err.,

the above date, and within the said district,

feloniously stole, embezzled, and purloined UNITED STATES.

bank notes and United States notes, the

property of the United States, of the value Error to Federal district court for the dis- of $560, out of certain letters addressed

trict of Porto Rico—denial of right to the postmaster of the United States at claimed under Federal statute by motion San Juan, Porto Rico, and intended to be in arrest—objections to selection of grand conveyed by mail, which letters had prejurors-waiver by failure to except.

viously come into the possession of Rafael

Rodriguez, as postmaster, and had not then 1. The overruling of a motion in arrest of been delivered to the party to whom they

judgment, in which the accused asserted that were directed. the grand jurors were not selected or drawn as required by the Federal statutes, presents the indictment upon grounds substantially

The defendants jointly moved to quash a case in which "an act of Congress is brought in question and the right claimed thereunder involving its sufficiency. The motion was is denied," within the meaning of the act of overruled, the court observing: “The indictApril 12, 1900 (31 Stat. at L. 85, chap. 191), ment charges the defendants with conspir§ 35. providing for a review in the Supreme Court of the United States of the final deci- | ing to commit an offense, and that, in pursions of the district court of the United suance to that, one of them did certain acts States for the district of Porto Rico.

which, owing to the alleged conspiracy, were

V.

.