This was a bill in equity by the city of Carlsbad and others against Hermann Kutnow and others for an infringement of the trade-mark or trade-name "Carlsbad Sprudel Salts."

Charles G. Coe, for plaintiffs.

Antonio Knauth, for defendants.

WHEELER, District Judge. The Carlsbad springs appear to be owned by, and wholly within the control of, the city of Carlsbad, in Bohemia; and the waters of them, for many years, to have been evaporated into salts of highly medicinal qualities, in crystals and powder, well known for their curative properties, everywhere, as "Carlsbad Sprudel Salz." This bill is brought to restrain the defendants, who are dealers in drugs and medicines in New York, from further using the words, "Improved Effervescent Carlsbad Powder," in selling other salts of similar appearance and properties, and for an account of profits from such use. As these are natural waters, unlike any others, and from which salts different from any others are produced, all genuine Carlsbad salts must necessarily emanate from them; and the plaintiffs, as proprietors of the springs and their products, must have the exclusive right to prepare and sell these waters and products as genuinely coming from these springs. The defendants do not deny the use of these words in selling similar salts, but claim the right to so use them because registry of these words, with other symbols relating to the Carlsbad springs, as a trade-mark, was granted to them by the high court of justice of England, chancery division, against opposition by the plaintiffs, in 1893; because, as they allege, the plaintiffs sell artificial salts by the name of "Carlsbad Salts;" and because their use of these words is not likely to mislead purchasers as to the origin of their salts.

The decision in favor of granting the application for registry of the trade-mark could have no effect beyond the grant of that privilege in that jurisdiction; and it does not appear to have been granted upon any supposition that even there it could be used in selling any but genuine preparations of Carlsbad spring water as such, but rather that it could not. 10 Rep. Pat. Design & TradeMark Cas. 401. That would appear to be no bar to a suit there for using the trade-mark on other salts to deceive; and it cannot be any bar to such a suit here, out of that jurisdiction, and beyond the operation of the laws under which the decision was made. If any artificial salts have come to be known by the name of "Carlsbad Salts," from similarity or otherwise, of course the defendants have the same right to sell such salts by that name that they have to sell anything by the name by which it is known. But there is no real evidence to that effect. And if the defendants procured genuine Carlsbad waters or salts, and put them up in different forms,. or with other ingredients, to improve their taste or vary their effects, these words would be truthful, and they would seem to have a clear right to use them in such preparations; but the plaintiffs' proof tends to show that the defendants' salts are not, in sub

stance, genuine Carlsbad salts, in any form, and the leading defendant has been a witness, and has not assumed to state-and, although the proof must be within their reach, none has been produced to show-that their salts come direct, in any form from the Carlsbad springs. The impression left by the evidence is that they do not, but are artificial. No proof has been brought showing that the plaintiffs have used the name of "Carlsbad" upon any but genuine Carlsbad sprudel salts.

As the case stands here, the defendants appear to be using the name "Carlsbad" upon artificial salts having no connection with that name, and to be using it only because of its connection with the genuine Carlsbad sprudel salts. Carlsbad, with its springs, is far away. This use of the name in connection with a preparation so similar to this well-known product of them is some representation that it is a genuine product of them. Calling the powder "Improved Carlsbad" is a direct representation that genuine Carlsbad powder has been taken to be improved upon; and calling it also "effervescent" is a representation that the improvement is in the effervescence. This is putting the plaintiffs' mark, to some extent, upon the defendants' salts, and is calculated to lead customers to think they are the salts of the plaintiffs. Such deception would be actionable at law, and is preventable in equity. McLean v. Fleming, 96 U. S. 245; Menendez v. Holt, 128 U. S. 514, 9 Sup. Ct. 143; Improved Fig-Syrup Co. v. California Fig-Syrup Co., 54 Fed. 175, 4 C. C. A. 264; Von Mumm v. Frash, 56 Fed. 830. Allusion has been made to this word being the name of the city, to which ordinarily an exclusive right cannot be acquired; but it is also the name of these peculiar springs, and gives the name to their products. Decree for the plaintiffs for an injunction and an account.

WHITE v. KELLER.

(Circuit Court of Appeals, Fifth Circuit. April 23, 1895.)

1. EVIDENCE-JUDGMENT.

No. 262.

An action of ejectment, to recover certain land in Mississippi, was brought by W., claiming under deeds from the heirs at law of A., a former owner, against K., claiming under deeds from devisees to charitable uses under the will of A., who resided and died in Louisiana. Upon the trial, the defendant offered in evidence the record of a suit in Louisiana, to which both the heirs and devisees of A. were parties, and of the judgment therein. Held, that such record was admissible to prove that the will of A. was valid in Louisiana, that it devised all his real estate, that the devises to charitable uses were valid and the donees capable of taking the same, all of which points were decided by the judgment, which was binding on both parties to the action of ejectment as privies to the parties to the Louisiana suit.

8. WILLS-INTERPRETATION-PROPERTY.

The term "property" embraces both real and personal estate, and a gift of the residue of "property and effects," in the general residuary clause of the will of a resident of Louisiana, is sufficient to pass real estate in Mississippi not specifically devised.

8. SAME TIME OF TAKING EFFECT.

A devise of real estate takes effect upon the death of the testator, and its operation is not postponed to the time of proving the will in the state where the land lies.

4. CHARITABLE USES-PERPETUITIES.

The rule against perpetuities cannot be invoked to defeat a devise to charitable uses.

5. SAME-LAWS AND PUBLIC POLICY OF MISSISSIPPI.

There was no law or public policy in force in Mississippi in 1886 which prohibited a foreign ecclesiastical corporation, authorized by its charter and the laws of its domicile to take and hold lands for charitable uses, from taking and holding land in Mississippi in trust for such purposes, nor did the constitution of 1890 take away any rights vested in such corporations prior to its adoption.

6. TRUSTS-CAPACITY OF TRUSTEE.

Where a devise of land has been made upon a valid trust, the heirs at law of the testator have no right to inquire into or contest the right of the trustees to take or execute the trust.

In Error to the Circuit Court of the United States for the Southern District of Mississippi.

This was an action of ejectment by Walter A. White against J. H. Keller. Judgment Judgment was rendered in the circuit court for the defendant. Plaintiff brings error. Affirmed.

In 1892, Walter A. White, the plaintiff in error, brought ejectment in the circuit court of Harrison county, state of Mississippi, against the tenant of J. H. Keller, defendant in error, who under the statute was admitted to defend, to recover a tract of land in that county. The same year the cause was removed to the United States circuit court by Keller on the ground of diverse citizenship, Keller alleging himself to be a citizen of Louisiana. In 1894 a trial was had, resulting in a verdict for the defendant in error under a peremptory charge by the court, and from the judgment on this verdict plaintiff sued out this writ of error. The admitted common source of title was Kaspar Auch. The plaintiff proved that David Zable and Rosina Muller, half brother and sister, were the sole heirs at law of said Auch; that Auch died seised of the property in 1886; and read in evidence the deeds of said Zable and Muller to him for the land, executed in 1891, which were quitclaim deeds, for an alleged consideration of $50 each; and rested. There were no objections to plaintiff's evidence. The defendant claimed title under the residuary clause of the will of Kaspar Auch, executed in New Orleans in 1886; and read in evidence, over the plaintiff's objection, a transcript of the record of the chancery court of Harrison county, state of Mississippi, in the matter of the probate of the will of said Auch, whereby Keller, in 1893, in his own interest, propounded for probate and probated the original will of Auch, upon a petition which recites that Auch was a citizen and resident of Louisiana, and died at his domicile at New Orleans in 1886, seised of real and personal estate in Louisiana, and of realty in Mississippi; that in 1886 said Auch made a will in New Orleans, in nuncupative form, before a notary, in the presence of three witnesses, which was probated in the civil district court of Orleans parish in 1886, upon the petition of the executors named. A copy of the will as probated in Louisiana is filed with the petition. The petition contains proper averments for the probate of an original will, and the original will is produced for probate, and the prayer is that the original will be admitted to probate. Due proof of the execution of the will was made by Hero, a witness, and upon this petition and proof the original will was admitted to probate. The will, after making numerous monetary bequests, among others to David Zable and Rosina Muller, contains this residuary clause: "I give and bequeath to the several incorporated religious associations of the city of New Orleans, propagating the teachings of religion according to the form of government and Book of Discipline of the Presbyterian Church, all the rest and residue of the property and effects that I may die possessed of, of whatever nature and kind, to the end that the poor of said respective churches in

this city may be cared for." Theisman and Wicke were appointed executors, and qualified as such in Louisiana. Plaintiff conceded that these probate proceedings were regular on their face, but objected to the reading of this record in evidence for the reason: "(1) The said will does not, on its face, purport to devise real estate in Mississippi, and must be limited in its operative effect to the state of Louisiana. (2) The said will, even if otherwise unobjectionable, could not pass to foreign religious societies the real estate of the testator in controversy, because said societies, at the death of the testator, had no capacity to take real estate in Mississippi for any purpose, and especially for the purpose stated in the instrument itself. (3) The religious societies named in the will could, by comity, acquire and held in Mississippi no greater rights than domestic religious establishments, and these latter could not, when the will was executed, or at the death of the testator, take such devise as is therein made, or acquire or hold the lands in controversy for the purpose stated in said will. (4) The said will, if allowed in evidence and given the construction contended for by counsel, would allow to foreign societies what is denied to domestic religious establishments, and invest such foreign religious societies with the legal title to real estate in Mississippi, contrary to her constitution and laws, and against her determined policy. (5) The said will, in its residuary clause, is void for uncertainty as to the trustees and beneficiaries. It provides no plan or scheme by which to ascertain the poor of the churches or apportion the fund, and the trust could not be enforced in the courts of this state by the trustees or beneficiaries. (6) The words 'property and effects,' as used in the residuary clause, are shown by the context to apply only to personalty, or, at best, to the 'property and effects' of the testator in Louisiana. (7) If said clause be construed as vesting title in the churches, they are given no power of disposition over the lands in this state, and the will would create a perpetuity. (8) The will was not probated until after the adoption of the constitution of Mississippi in 1890; and as, under that constitution, the devise is void, and no title in Mississippi could pass under the will until probated, the prohibition of the constitution extends to it, though made in 1886. There is no comity, law, or decision that could, in the doctrine of relation, defeat the constitution and policy of the state, the churches not being purchasers. But the court overruled the said objections and allowed the said will to be read in evidence, to which ruling and judgment of the court in overruling said objections, the plaintiff then and there instantly excepted, and his exception was allowed. The said petition, will, and probate order and certificates, were read to the jury, the exhibits to the petition and caption being omitted, by consent of counsel and court, to save expense." These objections were overruled, and plaintiff excepted, and this action of the court constitutes the ground for the first assignment of error.

The defendant then read in evidence a transcript of the record of the supreme court of Louisiana in the matter of the succession of Kaspar Auch, whereby it appeared that in 1886, on the petition of the executors and on proof of death, the will was probated in the civil district court, in nuncupative form, by notarial act, and without proof by witnesses, as the notarial act imported full proof. It contained also the petition of intervention of certain churches, to which petition the executors only were defendants, setting up the residuary clause of the will, and averring that the petitioners were the corporations thereby described, and praying to be declared residuary legatees, and that the executors sell the lands of the estate specified in exhibits. Upon proof made, the civil district court, in June, 1886, decreed the churches to be residuary legatees and instituted heirs, and that the executors sell the real estate mentioned in the inventory, and account for personalty and the proceeds of sale of lands to the churches. Said transcript also set forth a petition, filed in October, 1886, by Rosina Muller, naming the executors, said churches, and David Zable as defendants, setting forth the judgment in favor of the churches on their petition, and averring that the residuary clauses of the will were void, for the special reasons: "(1) Because it is therein attempted to create a trust, and to hold and perpetuate a fund for purposes not recognized by law. (2) Because the said clause is in effect a fidei commissum and substitution, and in violation of law. (3) Because the said claimants and the said legatees are incompetent to receive the said legacy, the object and purposes of

the same being beyond the scope of the powers granted by the various charters of the said churches and societies, and by the laws of this state for the creation and government of the same. (4) Because the said attempted disposition is too vague and indefinite, and can never be carried into effect, by reason of said vagueness and indefiniteness,"-and praying that she be recognized as heir, notwithstanding said decree in favor of the churches. The executors and the churches answered. Zable did not appear, nor is it shown that he was served with process. This petition upon proof taken was dismissed. Petitioner Muller appealed to the supreme court of Louisiana, and the judgment was affirmed. Succession of Auch (La.) 3 South. 227. Plaintiff objected to the reading of this record of the Louisiana court in evidence, for the reasons: "Because the said transcript was not competent evidence in this controversy as to the issue to be tried by the jury, and, if intended as an estoppel on the plaintiff through one of his grantors, Rosina Muller, was inoperative here, and inapplicable, the precise question therein litigated not being now here in issue; and for the further reason that the opinion and judgment of the said supreme court is neither pursuasive nor controlling as to the validity of the residuary clause of Kaspar Auch's will here, in respect of land in Mississippi; and because the opinion of the court could be proven by the report thereof to be found in the printed volume of Reports of Louisiana, or by a certified copy of the opinion itself." These objections were overruled, and plaintiff excepted. Therefrom arises the second assignment of error.

The plaintiff admitted that the defendant derived title through mesne conveyance from the said churches. Thereupon, at the instance of the defendant, the court granted a peremptory instruction to find for defendant; to which action plaintiff excepted, and from this ruling arises the third assignment of error. Upon this writ of error, it is admitted that the several churches through whom defendant claims title were duly incorporated under the laws of Louisiana, by charters of the same tenor and effect as that of the First Presbyterian Church, found in the record; and that the same were duly certified, in the same form as set forth in the record, by the recorder of mortgages of the parish of Orleans; and that said several churches are named in the record. It is further admitted that said churches, petitioners in the intervention proceeding, passed in 1886, and had enrolled on their several minutes, resolutions of the same tenor and effect as those of the First Presbyterian Church, set forth in the record, accepting said residuary clause of the said will; and that said minutes of said several churches, duly certified, and said several charters duly certified, were set forth and constituted part of said record of the supreme court of Louisiana read in evidence. It is further admitted that there was contained in said record of the Louisiana court, read in evidence, proof of the identity of said intervening churches, with the description contained in said residuary clause of said will; and that that proof showed that said churches, named as grantors in the deed to Keller's grantor, were the "incorporated religious associations of the city of New Orleans" intended to be described in said residuary clause of the will of Auch.

S. S. Calhoun, M. Green, W. L. Nugent, and T. A. McWillie, for plaintiff in error.

R. H. Browne, E. J. Bowers, Thomas L. Ford, and Ira L. Ford, for defendant in error.

Before PARDEE and McCORMICK, Circuit Judges, and TOUL MIN, District Judge.

PARDEE, Circuit Judge (after stating the facts). That the will of Kaspar Auch was a valid will in Louisiana; that it devises all the real estate of which Kaspar Auch died seised; that the legacy to the incorporated churches of the Presbyterian denomination in the city of New Orleans, "to the end that the poor of said respective churches might be cared for," is a donation to pious uses; that there is no uncertainty as to the legatees described in