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of the second lease of the Pepper distillery in 1873, James E. Pepper (son of Oscar Pepper) and E. H. Taylor operated it for a year or so, and then tore it down, erecting a new distillery in its place. This last-named copartnership was succeeded in the ownership of the new distillery by Labrot & Graham, 'who have operated it ever since its acquisition by them. It does not appear that after Gaines, Berry & Co. left the old Oscar Pepper distillery any one operating it or the new one erected in its place ever used the Crow process in the making of whisky, or that they or any of them ever applied the words 'old Crow' to any whisky of their production. It does not appear that Oscar Pepper ever used the words 'Old Crow' to designate the whisky produced at his distillery after James Crow left his employment. From 1855 to 1865, he operated his distillery, and designated its production as 'old Oscar Pepper' whisky. Edwards, who next operated the Oscar Pepper dis tillery, as previously stated, designated the whisky produced by him 'Edwards' Whisky,' and did not apply the words 'Old Crow' to it. From 1855 to 1867, when Gaines, Berry & Co. took charge of the old Oscar Pepper distillery, no one used the words 'Old Crow' or 'Crow' to designate his whisky. They began in the last-named year (1867] to apply the words 'Old Crow' to whisky of their production, and they and their successors down to the present time have continued to do so. It does not clearly appear that Oscar Pepper used the words 'Old Crow' or 'Crow' to designate the whisky produced by him while Crow was in his employment; but, if he did, it is certain that he discontinued their use after Crow left his service.” Smith, P. J., in W. A. Gaines & Co. V. Whyte Grocery, Fruit & Wine Co., 107 Mo. App. 507, 31 S. W. 648–652.

It was intimated by counsel for the defendants in this case upon the oral argument that the case above referred to should have but little weight in determining the case before this court, for the reason that that case was not properly tried for the defendants, and that it savored somewhat of collusion. I have examined the record in that case, and I am satisfied that the suspicion indulged in by counsel is not well founded.

The evidence in this case shows beyond question, as I think, that James Crow began distilling a certain kind of whisky, on Glenn's Creek, in Woodford county, Ky., in the year 1835. This whisky was made according to a formula known only at that time to Crow himself. Crow gave the name of "Crow” or “Old Crow” to the whisky made by him from 1835 to 1855, in which latter year he died. During all of that time he was the distiller for Oscar Pepper at the distillery of the latter on Glenn's Creek, in Woodford county, Ky. After the death of Crow, one Mitchell, who had worked in the same distillery with him, and who, during the time, became acquainted with Crow's formula, continued to make the same kind of whisky. The whisky was known to the trade by the name of "Crow" or "Old Crow," and was of superior quality, and was easily sold at a good price.

The evidence in this case satisfies me that in the year 1863 the defendants or their immediate predecessors were engaged in the whisky business in the city of St. Louis, and that during that year they offered a whisky of their own make for sale and called it “Crow” whisky. I am satisfied that this was done by them for the purpose of deceiving their customers as to the character of the whisky offered by them. They marked the barrels "Crow," and also used a picture of the bird on some of the packages. It was an attempt to palm off on the trade an inferior whisky, made under the name of "Crow”; they well knowing at the time the superior quality of the whisky manufactured on Glenn's Creek, in Woodford county, Ky. It was unfair competition, in that they sought to make others believe that they were selling the genuine "Old Crow” whisky, when, in fact, they were offering an inferior production of their own.

The claim that is made by the defendants in their answer, as well as in their cross-bill, that they adopted the trade-mark of “Old Crow" long before 1867, cannot be allowed.

A case involving the same question as that here presented was before the Supreme Court of New York in Gaines v. Leslie, 54 N. Y.. Supp. 421, 25 Misc. Rep. 20. In that 'case the court said:

“It appears that these words have been used for many years by the plaintiff, and its predecessors in business, as the mark of their brand of whisky, purporting to be the brand originally taking its name from one James Crow, a distiller, employed some 60 years ago in a distillery located near to or upon the site of the plaintiff's present 'Old Crow' distillery in the state of Kentucky. Certain evidence received without objection upon the trial would tend to show that the plaintiff has succeeded directly to the rights of the original distillers of this 'Crow' whisky, and, in any event, I think that the prima facie case, as to title, is supported by the reasonable inference to be drawn from the evidence, that, if the original distillers had a right to a trade-mark in the word 'Crow,' the right was abandoned to this plaintiff, or to its predecessors, and that their privilege to use the word became fixed, through general acceptance, in the course of succeeding years.” Bischoff, J., in W. A. Gaines & Co. v. Leslie, 54 N. Y. Supp. 421-423, 25 Misc. Rep. 20.

The evidence in the record in this case abundantly supports the opinions in the Missouri and New York cases above referred to.

The defendants have shown by some evidence in the case that they used the words “P. Crow” and “J. W. Crow” on packages put up by them. Why were they so used ? No one by the name of "P. Crow' or “J. W. Crow” was ever in the employ of the defendants, and no satisfactory reason is given for the employment of the name or names. The evidence, on the other hand, is overwhelming, and is practically uncontradicted, that James Crow began distilling whisky in Kentucky as far back as 1835, and so continued until his death in 1855, that during all of that time he used on the packages containing whisky made by him the words “Crow” or “Old Crow," and that from 1867 until the present time the complainant and its predecessors have used the words “Old Crow" in designating the whisky made by them.

I do not deem it necessary to pursue this matter further. The motion heretofore filed by the defendants to expunge certain exhibits filed by complainant will be overruled.

The cross-bill filed by the defendants will be dismissed, and a decree entered in favor of the complainant according to the prayer of the bill.

In re NATHANSON. (District Court, E. D. New York. June 7, 1907.) 1. BANKRUPTCY-DISCHARGE-SPECIFICATIONS OF OBJECTION-PETITION.

An objection to a bankrupt's discharge, reciting that objector "being in-terested as a creditor in the estate of [the bankrupt], does hereby op pose,” etc., sufficiently shows that petitioner is "a party interested” in the bankrupt's estate, within Bankr. Act July 1, 1898, c. 541, § 14b, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3427], providing that a discharge may be opposed by "parties in interest."

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2. SAME-RIGHT TO OPPOSE-DISCHARGEABLE CLAIM-OWNERSHIP.

A creditor of a bankrupt having a claim dischargeable in bankruptcy and provable in the pending proceeding may oppose the bankrupt's dis

charge, though the claim is not proved. 3. SAME-SPECIFICATIONS-OBJECTIONS-REMEDY OF BANKRUPT.

If a creditor of a bankrupt opposing his discharge has a debt not provable or which the discharge would not affect, the bankrupt’s remedy is by a motion to expunge the claim or strike out the specifications, rather

than by an objection to the form thereof. 4. SAME—VERIFICATION.

Verification of specifications of objection to a bankrupt's discharge be fore a duly commissioned notary public, affirming that the matters alleged are true to deponent's knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters the deponent believes the statement to be true, no matters having been stated on information and belief, is not fatally defective, but is sufficient to entitie the creditor to amend the same so as to conform to the form

of verification prescribed by Supreme Court form 3. 5. SAME-BOOKS AND RECORDS-CONCEALMENT.

A specification of objection to a bankrupt's discharge, alleging that he had wrongfully, fraudulently, willfully, knowingly, and with intent to conceal his true financial condition, and in contemplation of bankruptcy, concealed his books of account or records from which his true financial

condition might have been ascertained, was sufficient. 6. SAME-FALSE OATH.

A specification of objection to a bankrupt's discharge that he willfully, etc., made a false oath in his examination before the referee, wherein he testified that he last saw his books on the desk when he left his place of business, and that they consisted of one book, well knowing the same to be untrue, was objectionable for indefiniteness as to whether the falsehood related to the existence of books, or to the witness' statement as to when or where he last saw them, or that they consisted of one book, unless the creditor intended to charge that there were, in fact, no books,

and, if so, that should be made plain. 7. SAME.

Specifications of objection to a bankrupt's discharge that he falsely testified before the referee that he did not keep a ledger and an expense book were objectionable for failure to specify that he did keep a ledger

and an expense book, if those were the issues sought to be raised. 8. SAME.

A specification of objection to a bankrupt's discharge, alleging that he willfully, etc., falsely testified before the referee, “I did not keep books, I kept a book," well knowing the answer to be false and untrue, was objectionable for failure to state that the bankrupt did not keep even a single book, if that was the particular in which the testimony was al

leged to be untrue. 9. SAME-AMENDMENT.

Where specifications of objection to a bankrupt's discharge, alleging perjury by the bankrupt in his examination before the referee, were not sufficiently definite, they would not be wholly disregarded for such de fect, but the creditor would be given an opportunity to cure the defect by amendment.

On motion to confirm the report of a special commissioner overruling amended specifications to a bankrupt's discharge. Denied.

The following are the amended specifications:

Hyman Ensler, being interested as a creditor in the estate of Jacob Nathanson, a bankrupt, does hereby oppose the granting to the said Jacob Nathanson of the discharge from his debts and for the grounds of such opposition does hereby file the proposed following amended specifications:

(1) That between the 1st days of July and November, 1905, the said Jacob Nathanson wrongfully, fraudulently, willfully, and knowingly concealed in contemplation of bankruptcy and in defraud of his creditors property belonging to his creditors and estate in bankruptcy, to wit, the sum of ten thousand ($10,000) dollars, which said bankrupt has reserved and retained for himself, being moneys withdrawn from his business.

(2) That the said Jacob Nathanson, bankrupt above named, wrongfully, fraudulently, willfully, and knowingly, and with intent to conceal the true financial condition and in contemplation of bankruptcy, has concealed his books of account or records from which his true financial condition might be ascertained.

(3) That the said Jacob Nathanson, the bankrupt above named, wrongfully, fraudulently, willfully, and knowingly made a false oath in his examination before Referee Robert F. Tilney on the 1st day of May, 1904, when he testified as follows (quoting from the minutes of creditors' meeting, page 27):

"Q. When did you last see your books?
"A. In November, when I went away from the place of business.
"Q. Where did you see them in your place of business?
"A. Where have I seen them?
"Q. Yes.
“A. I had them on the desk.
"Q. What did they consist of?

"A. One book." -well knowing at the time that the aforesaid answers to the aforesaid questions were false and untrue.

(4) That the said Jacob Nathanson, the above named bankrupt, wrongfully, fraudulently, willfully, and knowingly made a false oath in his examination before Referee Robert F. Tilney on the 19th day of April, 1906, when he testified as follows (quoting from minutes of creditors' meeting, page 10):

"Q. What books did you keep, if any? Did you keep a ledger?

"A. No, sir.” -well knowing at the time that the aforesaid answer to the aforesaid question was false and untrue.

(5) That the said Jacob Nathanson, the above named bankrupt, wrongfully, fraudulently, willfully, and knowingly made a false oath in his examination before Referee Robert F. Tilney on the 19th day of April, 1906, when he testified as follows (quoting from minutes of creditors' meeting, page 10):

"Q. Did you keep a book for expenses?

"A. I did not; no, sir.” -well knowing at the time that the aforesaid answer to the aforesaid question was false and untrue.

(6) That the said Jacob Nathanson, the above named bankrupt, wrongfully, fraudulently, willfully, and knowingly made a false oath in his examination before Referee Robert F. Tilney, when he testified as follows (quoting from minutes of creditors' meeting, page 11):

"Q. What books did you keep?

"A. I did not keep books. I kept a book.” -well knowing at the time that the aforesaid answer to the aforesaid question was false and untrue.

Wherefore, said Hyman Ensler prays that the application of said bankrupt herein be denied. Dated, New York, February 23d, 1907.

Hyman Ensler, Objecting Creditor. Joseph S. Rosalsky, Attorney for Objecting Creditor,

346 Broadway, New York City. United States of America, Eastern District of New York, County of

Kings—ss: Hyman Ensler, being duly sworn, deposes and says that he is the creditor above named; that he has read the foregoing proposed amended specifications, and that the same are true of his own knowledge, except as to the matters therein stated to be alleged on information and belief and as to those mat. ters he believes it to be true.

Hyman Ensler. Sworn to before me this 23d day of February, 1907.

Charles Beebaring, Notary Public, N. Y. Co. Certificate filed in Kings Co.

For former opinion, see 152 Fed. 585.
Slade & Slade, for bankrupt.
Joseph S. Rosalsky, for objecting creditor.

CHATFIELD, District Judge. One of the petitioning creditors, Hyman Ensler, filed specifications in opposition to the bankrupt’s application for discharge upon the 17th day of December, 1906, consisting of six allegations upon information and belief, and a seventh allegation, which charged directly that the bankrupt had made a false oath in relation to certain books of account or records, from which his true financial condition might be ascertained. These specifications were verified according to the form of verification provided by the laws of the state of New York for a complaint in an action in the state court. Subsequently, by leave of this court (see In re Nathanson [D. C.] 152 Fed. 585), the petitioning creditor was allowed to file amended specifications, and these amended specifications contain six allegations, of which none is stated to be alleged upon information and belief. The verification of the amended specifications was in the same form as the verification of the original specifications, and is as follows: “United States of America, Eastern District of New York, County of

Kings—SS: "Hyman Ensler, being duly sworn, deposes and says that he is the creditor above named, that he has read the foregoing proposed amended specifications, and that the same are true of his own knowledge, except as to the matters therein stated to be alleged on information and belief and as to those matters he believes it to be true.

Hyman Ensler. “Sworn to before me this 23d day of February, 1907.

"Charles Beebaring, Notary Public, N. Y. Co. “Certificate filed in Kings Co." The bankrupt made a motion before the special commissioner to whom the objections had been referred to dismiss these amended specifications. The special commissioner reports that the motion should be granted.

The first ground of objection which is sustained by the special commissioner is that the objecting creditor has not shown that he has complied with form 58, as prescribed by the Supreme Court. The amended specifications contain the following:

“Hyman Ensler, being interested as a creditor in the estate of Jacob Nathanson, a bankrupt, does hereby oppose," etc.

Section 14b, Bankr. Act July 1, 1898, c. 541, 30 Stat. 550 [U. S Comp. St. 1901, p. 3427], provides that a discharge may be opposed by "parties in interest.” Section 30 of the act conferred upon the Supreme Court the power to prescribe all necessary rules, forms and orders. Under this power form 58 was promulgated, as follows: of - -, in the county of

and state of

; a party interested in the estate of said bankrupt, do hereby oppose," etc.

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