praisers on classification passed upon no question except that of jurisdiction; that the only question here is whether the board had or had not jurisdiction, there being no claim that the board of general appraisers on valuation did any illegal act, or made any error in their decision; and, further, that the action of the collector from which this appeal is taken is not a decision as to the rate and amount of duties under section 14 of said act, but is a mere computation, based upon the valuation made by the board of general appraisers. Counsel for the importers claim that it is a condition precedent to the right to review the appraisal of the single general appraiser that the collector shall deem the appraisement too low, that the secretary of the treasury has no power to direct the collector in regard to such appeals, and that said appeal was taken by the collector under the coercion of the secretary of the treasury. It is unnecessary to discuss all the contentions presented in the ingenious, forcible, and exhaustive argument of counsel for the government. If the evidence that the collector did not deem the appraisement too low is admissible, the decisive question is whether the secretary of the treasury had authority to direct the collector to take said appeal irrespective of his (the collector's) opinion. Counsel for the government, in support of his claim that said evidence was inadmissible, cited the following cases: Cornett v. Williams, 20 Wall. 226-249, 22 L. Ed. 254; McNitt v. Turner, 16 Wall. 366, 21 L. Ed. 341; Bank v. Dandridge, 12 Wheat. 70, 6 L. Ed. 552; Ward's Lessee v. Barrows, 2 Ohio St. 247. These cases only apply the settled maxim, "Omnia præsumuntur rite et solemniter esse acta donec probetur in contrarium." When it is essential to the right of a public officer to act that a certain state of facts should exist, there is a presumption of the existence of such facts. But it is well settled that such presumptions may be rebutted by proof of lack of jurisdiction. Especially is this so in cases where the question arises. as to the legal rights of importers. Greely v. Thompson, 10 How. 225, 13 L. Ed. 397; U. S. v. Passavant, 169 U. S. 16, 18 Sup. Ct. 219, 42 L. Ed. 644. The question here is not like that in Muser v. Magone, 155 U. S. 240, 15 Sup. Ct. 77, 39 L. Ed. 135, where the court stated that appraisers or other officers could not be interrogated as to their mental processes in making a decision on questions of value, provided they acted within their statutory powers, and without fraud. Nor is this a question between a superior and an inferior officer, in which the orders and regulations of the superior officer are binding upon his subordinate. In Oelbermann v. Merritt, 123 U. S. 356, 8 Sup. Ct. 157, 31 L. Ed. 164, the question arose whether a certain merchant appraiser was "familiar with the character and value of the goods" appraised, as provided by section 2930 of the Revised Statutes, and whether his incapacity could be proved by his own evidence. The court says: "In regard to the question whether Mr. Bates was a competent witness to prove that he was not familiar with the character and value of silk velvets, we are of opinion that his evidence on that subject was admissible. As the question of his familiarity with the article and with its value necessarily depended upon the nature, and, to some degree, at least, upon the extent, of his experience in connection with the article, no one could know what that expe rience was so well as himself. If he is to be excluded as a witness on the subject, when offered by either side, the court and the jury and the parties would be deprived of the best testimony within reach. There is no ground of public policy which forbids that the merchant appraiser should be a witness to the extent above indicated. The brief of the solicitor general does not urge that the witness was not a competent witness to that extent." The question, therefore, is whether the secretary of the treasury had the right to order the reappraisement. The word "deem," used in this connection, necessarily involves the exercise of discretion on the part of the collector. His calling and the nature of his business place him in a position where he is necessarily familiar with the value of imported merchandise, and with the facts bearing upon questions of appraisal. In such a determination he exercises his discretion judicially. "It is not consistent with the idea of judicial action that it should be subject to the direction of a superior in the sense in which that authority is conferred upon the head of an executive department in reference to his subordinates." Butterworth v. Hoe, 112 U. S. 50, 5 Sup. Ct. 25, 28 L. Ed. 656. The law as to ministerial functions, where nothing is left to the discretion of a person, and where he may be forced to perform a certain act, does not apply to the exercise of such judicial functions. Association v. Zumstein, 15 C. C. A. 153, 67 Fed. 1000. It may be true, as urged by counsel for the government, that there is a defect in the tariff laws, in that the secretary of the treasury has not been specifically empowered to order a reappraisement in such cases, as he is alternatively empowered to do under section 15, where he is dissatisfied with the decision of the board of general appraisers on classification; but this is not a matter to be remedied by judicial legislation. The decision of the board of classification sustaining the protests is affirmed. LA REPUBLIQUE FRANCAISE et al. v. SARATOGA VICHY SPRING CO. (Circuit Court, N. D. New York. February 19, 1900.) 1. TRADE-NAMES-INFRINGEMENT "VICHY" MINERAL WATER. - The name "Vichy," as applied to mineral water, is a geographical name used generally by the owners of springs near Vichy, France, to designate the locality of origin, and indicate the general characteristics, of their waters. It is not a trade-mark or trade-name, in a legal sense; and a suit by such owners against a defendant for using the name in connection with artificial waters, or waters of a different origin, can only be maintained on the ground of unfair competition. 2. SAME-UNFAIR COMPETITION. Defendant for many years bottled and sold natural mineral water from a spring at Saratoga under the name of "Saratoga Vichy." No attempt was made to palm it off on purchasers as an imported water, but it was sold on its merits, and the labels were such as could not deceive a person of ordinary intelligence. Held, that the use of the name "Vichy" in connection with such water did not constitute unfair competition.1 This was a suit in equity for an injunction against infringement of rights in a trade-name. On final hearing. 1 As to unfair competition in trade, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376. Rowland Cox, for complainants. Edgar T. Brackett and Walter P. Butler, for defendant. COXE, District Judge. It is thought that this cause is ruled by the decision in La Republique Francaise v. Schultz (C. C.) 94 Fed. 500, recently affirmed. Of course the facts are not alike. They never are. The salient features are, however, almost identical. The principles upon which the decision in the Schultz Case rests are invoked in the case at bar and I see no way to avoid their application. The attempt to distinguish, though ingenious, is founded upon considerations which are too vague and unsubstantial for practical application. They do not go to the merits of the controversy. They make no breach in the principal line of defense. It would be inequitable to punish the defendant with an injunction and an accounting after exonerating the defendants in the former case. Indeed, the defense here is, in some respects, stronger than in the Schultz Case. The defendant's water has been known for 26 years as Saratoga Vichy and the record shows that there has never been an attempt to palm it off on innocent buyers as the imported article. The defendant has sold it upon its merits as a natural Saratoga water. The two are different in appearance, taste and ingredients. The defendant's is a sparkling water and for several years has been sold under a label on which the word "Saratoga" is as prominently displayed as the word "Vichy." It is true that there is a small neck label attached to the bottle on which the name "Vichy" is the more prominent, but in view of the many other distinguishing characteristics it seems inconceiv able that any one of ordinary perception can be induced to buy the defendant's water supposing it to be the imported Vichy. An individual stupid enough to be deceived in such circumstances is beyond the aid of a court of equity. In his case a writ de lunatico is a more appropriate remedy than a writ of injunction. The bill is dismissed. HOSTETTER CO. v. E. G. LYONS CO. (Circuit Court, N. D. California. February 12, 1900.) No. 12,822. 1. TRADE-MARKS-INFRINGEMENT PLEADING-PLEAS The objection to a bill for the infringement of a trade-mark, that it is insufficient to entitle complainant to relief, because it does not show that complainant has the exclusive right to the trade-name claimed to be infringed, cannot be raised by plea, but must be raised by demurrer, since a defect on the face of the bill. 8. SAME-MULTIFARIOUSNESS. In a suit for the infringement of a trade-mark, the plea set up as defenses that the bill was insufficient, because not showing that complainant had the exclusive right to the trade-name claimed to be infringed, and that complainant was not entitled to protection in using such name in connection with what it called "bitters," made and manufactured after formulæ long known and understood, and not belonging exclusively to com plainant. Held, that the plea was multifarious, because presenting two separate and distinct issues,-one of law and one of fact. 142 C. C. A. 233, 102 Fed. 153. In Equity. E. Edgar Galbreth and Albert H. Clarke, for complainant. MORROW, Circuit Judge. This is an action brought for the infringement of a trade-mark by the complainant, a corporation or ganized under, and existing by virtue of, the laws of Pennsylvania, against the respondent, a corporation organized under the laws of this state, having its principal place of business at San Francisco, Cal. The bill charges that the respondent has sold and is now selling a compound made in imitation of a preparation put up and sold by complainant under the names, "Hostetter's Celebrated Stomach Bitters," "Hostetter's Bitters," "Hostetter," "Host.," and "H. Bitters"; that respondent's imitation is calculated to mislead and deceive the ordinary purchaser, and is sold by respondent either in bulk by, the gallon, or in labeled bottles resembling complainant's bottles and labels, or in complainant's bottles, which, having been exhausted, are refilled by respondent with its compound. The bill further alleges that such infringement on the part of the respondent has been practiced by it for a period of five years, that complainant has but recently learned thereof, and that complainant has been injured thereby to the extent of $10,000, and prays for an accounting of profits and damages, and that a perpetual injunction issue, restraining respondent from all the acts complained of. Respondent has filed an answer denying generally the averments of the bill, and has also filed a special plea accompanying the answer, subject to which the answer has been interposed, and without waiving any of the averments therein contained or the issues thereby raised. This special plea avers: (1) That the bill of complaint is inadequate and insufficient to entitle complainant to relief, in that it does not appear from the bill that the complainant has the exclusive right to use the trade-name "Hostetter's Bitters"; that such name is not a subject of trade-mark or exclusive use, except it be used other and different from the manner in which the complainant uses it with and concerning that class of goods it claims to have the exclusive right to sell. (2) And that complainant is not enti tled to protection in using the said name in connection with what it calls "bitters," which are made and manufactured after formulæ long known and understood, and not belonging exclusively to complainant. The office of a plea, in equity practice, is to present a single issue of fact as a defense, which operates as a bar to the complainant's right of recovery. A demurrer, on the other hand, raises a question of law, and is directed to the sufficiency of the complaint. It is manifest that these two defenses cannot be combined in one pleading, and this is the fatal objection to the present plea. It presents two separate and distinct defenses; the first being that the bill of complaint is inadequate and insufficient to entitle the complainant to relief, in that it does not appear from the bill that the complainant has the exclusive right to the trade-name of "Hostet ter's Bitters." If this objection is well founded, it discloses a defect in complainant's case as stated in the bill, but this objection is one that cannot be raised by a plea. A defect upon the face of a bill is to be met, not by a plea, but by a demurrer. In Farley v. Kittson, 120 U. S. 303, 314, 7 Sup. Ct. 534, 30 L. Ed. 684, the court said: "But the proper office of a plea is not, like an answer, to meet all the allegations of a bill, nor like a demurrer admitting those allegations to deny the equity of the bill; but it is to prevent some distinct fact which of itself creates a bar to the suit, or to the part to which the plea applies, and thus to avoid the necessity of making the discovery asked for, and the expense of going into the evidence at large. Mitf. Eq. Pl. (4th Ed.) 14, 219, 295; Story, Eq. Pl. pars. 649, 652." It is very certain that a question of law as to the sufficiency of the bill cannot be raised by a plea, and that the first defense set up by respondent cannot be maintained as a plea in bar. The second defense, that the complainant is not entitled to protection in using the said name in connection with what it calls "bitters," which are made and manufactured after formulæ long known and understood, and not belonging exclusively to the complainant, presents an issue of fact as to the formulæ under which complainant's bitters are made and manufactured, and whether such formulæ have been long known and understood by the public. This defense requires evidence to support it. The plea, presenting, therefore, two separate and distinct issues, -one of law and one of fact,-is objectionable for duplicity and multifariousness. In the case of State of Rhode Island v. State of Massachusetts, 14 Pet. 259, 10 L. Ed. 423, it is said: "But the plea put in by the defendant cannot be sustained, even if this were to be treated as a suit between individuals, and tried by the ordinary rules of chancery pleading. It is multifarious, and on that account ought to be overruled. It is a general rule that a plea ought not to contain more defenses than one. Various facts, therefore, can never be pleaded in one plea, unless they are all conducive to a single point, on which the defendant means to rest his defense. This principle is so well established that it is unnecessary to refer to many adjudged cases to support it." In McCloskey v. Barr (C. C.) 38 Fed. 167, Circuit Judge Jackson said: "It is not usual or in conformity with proper practice for a defendant, without previous special leave of the court, to file several separate pleas, or to protest several distinct and independent defenses in one plea to the suit, for the reason that the defense proper for a plea is such as reduces the cause, or some distinct part of it, to a single point or issue; the object of the plea being to save litigant the expense and trouble of going into the evidence, and a trial at large. In Mitf. & T. Eq. Pl. 381, it is said that it is generally concurred that a plea ought not to contain more defenses than one, and though a plea may be bad in part, and not in the whole, and may accordingly be allowed in part and overruled in part, yet there does not appear any case in which two defenses offered by a plea have been separated, and are allowed as a bar.' The reason for this rule is fully and clearly explained on pages 382 and 383 of the same work. The plea may consist of a variety of facts and circumstances, without being bad for duplicity or multifariousness, provided they furnish, as their result, one clear ground upon which the equity of the bill, or the |