said appeal seeks to bring up for review is not a final decree, and for other reasons which are apparent upon the face of said papers, and that we shall then and there move for such other and further relief in the premises as may be just. JULES AUBRY, being duly sworn, deposes and says: I reside in the City, County and State of New York. I am the vice-president of the Cusenier Company, which is the respondent above named. On or about the 7th day of January, 1905, a bill in equity by the above-named complainant, appellant, against the Cusenier Company, was filed in the Clerk's office of the [District] Court of the United States for the Southern District of New York. A copy of said bill in equity is hereto annexed, marked A. Said bill prays injunctive relief and an accounting as follows: "That said defendant may be compelled to account for all the profits, gains, savings and advantages derived or received by it by reason of the unlawful acts herein complained of." An appearance and answer traversing the material allegations thereof were duly filed by the said Cusenier Company to said bill. The general replication was thereafter filed by complainant. Testimony was taken by both parties in support of the issues raised by said answer and replication. On or about the 26th day of November, 1907, a decree was entered thereupon, after a hearing, a copy of which decree is hereunto annexed, marked B. Said decree enjoined the said Cusenier Company from using certain alleged trade-marks, also from selling or offering for sale any liqueur or cordial not manufactured by complainant, in any dress or package like or simulating in any material respects the dress or package theretofore used by complainant. Said decree concluded as follows: "5. It is further adjudged, ordered and decreed, that the matter be referred to John A. Shields, Esq., as Master, to take the usual accounting and report to this Court with all convenient speed the amount of defendant's profits by reason of the infringements and wrongs above referred to, together with the quantity of the infringing article now in possession or control of defendant or of any of its officers, servants or privies. 6. And it is further adjudged, ordered and decreed, that complainants do recover from defendant their taxable costs herein; and that execution issue for the same and for the amounts found due on the accounting."' Subsequently thereto, the said Cusenier Company duly appealed from said decree to the Circuit Court of Appeals of the United States for the Second Circuit. Said appeal duly came on to be heard. Subsequently thereto, and on or about the 21st day of August, 1908, the said Circuit Court of Appeals, after argument on behalf of both parties thereto, duly rendered its decision modifying the injunctive part of said decree and in other respects affirming the same and affirming so much thereof as directed an accounting. The said modification consisted in inserting in said decree after the words "or any of the trade-marks above referred to or any colorable imitation thereof'' in the fourth paragraph of the said decree the following words: "unless so used as clearly to distinguish such liqueur or cordial from the liqueur or cordial manufactured by the complainants," and by striking out from the words in the same paragraph "from making use of any bottle or label or package," the words "bottle or," and by substituting therein for the word “package” the word "symbol," and by inserting in the same paragraph between the words "similar to" and "complainant's exhibit" the words "those appearing on." The order of said Circuit Court of Appeals therein is recited in its mandate. A mandate thereupon was duly issued from said Circuit Court of Appeals on or about the 22d day of August, 1908, a copy of which mandate is hereunto annexed, marked C. A copy of the order upon said mandate, which correctly recites the decision of said Circuit Court of Appeals, is hereunto annexed, marked D. On or about October 16, 1908, the said complainant obtained from the Honorable E. Henry Lacombe, United States Circuit Judge, an order allowing an appeal from the order for the mandate of the said Circuit Court of Appeals for the Second Circuit, made and entered on October 21, 1908. Said appeal has been docketed and is now pending on the calendar of this court and is number 614 on the calendar for the October Term 1908. Its file number is 4410. A citation thereunder has been served upon the Cusenier Company. JULES AUBRY. JAMES A. ALLEN, Sworn to before me this 27th day of February, 1909. [NOTARIAL SEAL.] Notary Public, New York County. APPELLATE FORM XXVI.-MOTIONS TO DISMISS AND TO AFFIRM. THE NORTHERN PACIFIC RAILROAD COM- DOMINICK AMATO, Defendant in Error. Now comes Dominick Amato, the defendant in error, by Roger Foster, his counsel, and moves this Court to dismiss and quash the paper purporting to be a writ of error herein for want of jurisdiction and because the paper purporting to be a writ of error is informal, irregular and insufficient on the grounds stated in the annexed argument and upon other grounds; and the said defendant in error also moves this Court to affirm the judgments of the Circuit Court of Appeals and of the [District] Court herein upon the ground that it is manifest that the paper purporting to be a writ of error herein was taken for delay only, and that the question upon which it is claimed that the jurisdiction depends is so frivolous as not to need further argument. ROGER FOSTER, Attorney and Counsel for Defendant in Error. APPELLATE FORM XXVII.-NOTICE OF SUBMISSION OF MOTIONS TO DISMISS AND TO AFFIRM. Sir-Please take notice that on the annexed verified statement of facts herein, and on all the papers and proceedings herein, I shall submit to the Supreme Court of the United States, at a Stated Term thereof, on Monday, February 29th, 1892, at the Capitol, in the City of Washington, in the Dictrict of Columbia, at the opening of the court on that day, or as soon thereafter as counsel can be heard, the motions of which the foregoing are copies; and that I shall submit with said motions and in support of the same the arguments annexed to said statement of facts. New York City, New York, February 6, 1892. APPELLATE FORM XXVIII.-ORDER OF AFFIRMANCE. [Northern Pacific R. R. Co. v. Amato, 144 U. S. 465.] This cause having come on to be heard on a writ of error to the judg ment entered herein on the verdict of a jury in the clerk's office of the [District] Court of the United States for the southern district of New York on the 28th day of May, 1891, and a motion having been made on behalf of the defendant in error to dismiss the writ of error for want of jurisdiction, now, after hearing Roger Foster, Esq., of counsel for the defendant in error, in support of said motion to dismiss said writ of error, and Henry Stanton, Esq., of counsel for the plaintiff in error, in opposition to said motion and in support of the jurisdiction of this court, and after hearing Henry Stanton, Esq., of counsel for the plaintiff in error, in support of said writ of error, and Roger Foster, Esq., of counsel for the defendant in error in opposition to said writ of error, and due deliberation having been had, on motion of Henry Stanton, Esq., attorney for the plaintiff in error, it is Ordered that said motion to dismiss said writ of error be, and the same hereby is, denied; And on motion of Roger Foster, Esq., attorney for the defendant in error, it is Ordered that said judgment be, and the same hereby is, in all things affirmed, with disbursements of the [District] Court and the costs and disbursements of this Court, to be taxed, and that a mandate issue to the [District] Court of the United States for the southern district of New York directing that court to proceed in accordance with the decision and order of this court. W. J. W. E. H. L. APPELLATE FORM XXIX.-MANDATE. Dancel v. Goodyear Shoe Machinery Co. [106 Fed. 551.] UNITED STATES OF AMERICA, SS: Mandate. The President of the United States of America, to the Honorable, the Judges of the Circuit Court of the United States for the Southern District of New York, Greeting: Whereas, lately in the Circuit Court of the United States for the Southern District of New York, before you, or some of you, in a cause between Christian Dancel and another against the Goodyear Shoe Machinery Company of Portland, Maine, judgment was entered in the office of the Clerk of said Court on the 2nd day of December, 1901, in the words and figures following, to wit: "The issues in this action having been duly brought on for trial at a jury Term of this Court before the Hon. Hoyt H. Wheeler, United States Circuit Judge, and the parties hereto having duly waived a jury and con sented to the trial of the issues by the Court; the Court after hearing the counsel for the plaintiffs and counsel for the defendant, having found in favor of the plaintiffs, and assessed the plaintiffs' damages as follows: Amount found due from November 1, 1898, to the time of the commencement of this action nine thousand five hundred and eighty-three and 33/100 dollars, and the interest thereon to the date of trial amounting to one thousand one hundred and ninety-seven dollars, making a total of ten thousand seven hundred and eighty 33/100 dollars and the costs having been duly taxed in the sum of twenty-nine 70/100 dollars: Now, on motion of J. Philip Berg, attorney for the plaintiffs, it is hereby adjudged that the plaintiffs, Christian Dancel and Mary Dancel, administrators of the goods, chattels and credits of Christian Dancel, deceased, recover of the defendant, The Goodyear Shoe Machinery Company of Portland, Maine, the sum of ten thousand seven hundred and eighty and 33/100 dollars damages and the sum of twenty-nine and 70/100 dollars as costs, in the aggregate the sum of ten thousand eight hundred and ten 3/100 dollars and that the plaintiffs have execution against the defendant accordingly. Judgment signed this 2nd day of October, 1901. JOHN A. SHIELDS, Clerk." as by the inspection of the transcript of the record of the said Court which was brought into the United States Circuit Court of Appeals for the Second Circuit, by virtue of a writ of error agreeably to the act of Congress, in such case made and provided, fully and at large appears. And whereas, in the present term of October, in the year of our Lord one thousand nine hundred and two, the said cause came on to be heard before the said United States Circuit Court of Appeals for the Second Circuit, on the said transcript of record, and was argued by counsel. On consideration whereof, it is hereby Ordered, adjudged and decreed, that the judgment of said Circuit Court be and it hereby is reversed with costs, taxed at the sum of $124.07, without prejudice to an application by plaintiff for leave to reframe the complaint into a bill in equity. You, therefore, are hereby commanded that such further proceedings be had in said cause, in accordance with the opinion of this Court as according to right and justice, and the laws of the United States, ought to be had, the said writ notwithstanding. Witness, the Honorable Melville W. Fuller, Chief Justice of the United States, the 30th day of December, in the year of our Lord one thousand nine hundred and two. |