The United States v. Pelletreau. The motion for a preliminary injunction is denied. Charles F. Blake and Benjamin F. Thurston, for the plaintiffs. Edwin T. Rice and Edward N. Dickerson, for the defendants. THE UNITED STATES vs. JOHN PELLETREAU. Under § 5467 of the Revised Statutes, an indictment will lie which charges a person employed as a letter carrier in the postal service, with having embezzled a letter which was intended to be conveyed by mail and contained an article of value, and had been entrusted to him, and had come into his possession as such letter carrier. Said § 5467 is not conferred to the offence of stealing or taking things out of a letter, packet or bag. (Before BENEDICT, J., Eastern District of New York, February 5th, 1877.) BENEDICT, J. This is a motion to quash an indictment framed under § 5467 of the Revised Statutes of the United States, upon the ground that the facts stated do not constitute an offence. The averments of the indictment are, that the accused was a person employed as a letter carrier in the postal service of the United States, and embezzled a certain letter, described, which was intended to be conveyed by mail, and which contained an article of value, described, which said letter had been entrusted to the accused, and had come into his possession as such letter carrier. The contention in behalf of the accused is, that the only offence created by § 5467 is that of stealing or taking things out of a letter, packet or bag. The section is in these words: "Any person employed in any department of the postal service who shall secrete, embezzle, or destroy any letter, packet, bag, or mail of letters intrusted to him, or which shall come into his possession, and The United States v. Pelletreau. which was intended to be conveyed by mail, or carried or delivered by any mail carrier, mail messenger, route agent, letter carrier, or other person employed in any department of the postal service, or forwarded through or delivered from any post office or branch post office established by authority of the Postmaster-General, and which shall contain any note, bond, draft, check, warrant, revenue stamp, postage stamp, stamped envelope, postal card, money order, certificate of stock, or other pecuniary obligation or security of the Government, or of any officer or fiscal agent thereof, of any description whatever; any bank note, bank post bill, bill of exchange, or note of assignment of stock in the funds; any letter of attorney for receiving annuities or dividends, selling stock in the funds, or collecting the interest thereof; any letter of credit, note, bond, warrant, draft, bill, promissory note, covenant, contract, or agreement whatsoever, for or relating to the payment of money, or the delivery of any article of value, or the performance of any act, matter or thing; any receipt, release, acquittance, or discharge of or from any debt, covenant or demand, or any part thereof; any copy of the record of any judgment or decree in any court of law or chancery, or any execution which may have issued thereon; any copy of any other record, or any other article of value, or writing representing the same; any such person who shall steal or take any of the things aforesaid out of any letter, packet, bag, or mail of letters which shall have come into his possession, either in the regular course of his official duties or in any other manner whatever, and provided the same shall not have been delivered to the party to whom it is directed, shall be punishable by imprisonment at hard labor for not less than one year nor more than five years." It is contended that this section omits to say that persons doing any of the acts that are mentioned in the section prior to the last semicolon in it shall be liable to punishment, and makes punishable only the acts mentioned after the words "any such person who shall," following the semicolon. But this construction of the section is entirely too strict even for a criminal statute. It is conceded, that, if. Harrington v. Libby. the conjunction "and" had been inserted between the semicolon and the words "any," the statute would be complete. But, the omission of the conjunction, by way of ellipsis, in such statutes, is a very common thing. Sections 5463 and 5464 just above, present several instances of such omissions. The intention of the statute is as plain without the conjunction as with it. Manifestly, two classes of offences are intended to be created, one relating to the embezzlement of letters, &c., the other relating to stealing the contents of letters; and this intention is carried out if we suppose an ellipsis, while, without an ellipsis, a very considerable part of the section is useless and void. According, then, to the familiar rule of construction, the statute should be read so as to render its language effective, and, by inserting the conjunction, this is done. So read, it creates the offence charged in the indictment. The motion to quash is, therefore, denied. Asa W. Tenney, (District Attorney,) for the United States. John J. Allen, for the defendant. GEORGE HARRINGTON 28. JAMES L. LIBBY. The exclusive use of a tin pail with a bail or handle to it, the tin ornamented with a geometrical pattern, and used to contain paper collars for sale, and sold with the collars, cannot be claimed as a trade-mark, either under the statute or by virtue of the general law of trade-marks. (Before JOHNSON, J., Southern District of New York, February 8th, 1877.) JOHNSON, J. The plaintiff claims to be entitled to the exclusive use of a tin pail with a bail or handle to it, the tin ornamented with a geometrical pattern, and used to contain paper collars for sale and sold with the collars. This claim is made not on the ground, that he is the inventor and patentee Harrington v. Libby. of pails thus made, or of the material used in making them, or of the art of selling collars by giving away a tin pail with them. But the claim is that this is a trade mark, and entitled to protection as such, either by force of the statute of the United States on the subject, or by virtue of the general law of trade marks. It appears that the ornamented tin pail which the plaintiff employs is a common article in commerce, and that pails made of tin, ornamented or unornamented, are and have long been in use for all such purposes as any one chose to apply them to. The question whether any one can seize upon such an article and make title to its exclusive use for a special purpose, by calling it a trade mark, must be far from clear in favor of the claimant. The forms and materials of packages to contain articles of merchandise, if such claims should be allowed, would be rapidly taken up and appropriated by dealers, until some one, bolder than the others, might go to the very root of things, and claim for his goods the primitive brown paper and tow string, as a peculiar property. It will be observed, that it is not a mark at all which is claimed, but the whole enveloping package, the whole surface of which is covered by the ornamental pattern. There is no name, no symbol, no assertion of origin or ownership. The case strongly resembles that of Payson's Indelible Ink, (Browne on Trade Marks, §§ 271, 272,) where the claim was rejected, on the ground, that, if maintained, the effect would be to gradually throttle trade. The case of Moorman v. Hoge, (2 Sawyer, 78,) seem to me quite in point. In favor of maintaining the right to the barrel in question in that case, all circumstances of fact concurred, but the Court held that the law did not recognize an exclusive right to an unpatented package, nor permit its assertion. I concur in the principles maintained in that case, and think the plaintiff has failed to show such a right in the premises as can entitle him to a preliminary injunction. The motion must be denied. James A. Whitney, for the plaintiff. Edmund Wetmore, for the defendant. In re Wm. H. Brightman and Hiram B. Losee, Bankrupts. IN THE MATTER OF WILLIAM H. BRIGHTMAN AND HIRAM B. LOSEE, BANKRUPTS. Under § 5108 of the Revised Statutes, as amended by the Act of July 26th, 1876, (19 U. S. Stat. at Large, 102,) which limits the time within which a bankrupt may apply for a discharge from his debts, to a time "before the final disposition of the cause," it is too late for him to apply for a discharge after his assignee has, under § 5096, been discharged from all liability, as assignee, to any creditor. The words, “the final disposition of the cause," mean the final disposition of the administration of the estate. (Before JOHNSON, J., Northern District of New York, February 12th, 1877.) JOHNSON, J. This is a petition by the bankrupts, to review the decision of the District Judge refusing their application for an order to show cause why they should not be discharged from their debts. The refusal was placed upon the ground that there had been a final termination of the matter prior to the application for discharge. The adjudication was made on the petition of creditors, on the 22d of December, 1873, declaring the petitioners to be bankrupts. On the 20th of May, 1876, the accounts of their assignee were settled, and the assignee was discharged, in pursuance of section 5096, from all liability, as assignee, to any creditor of the bankrupts. The bankrupts aver, in their petition for a discharge, which bears date November 13th, 1876, that they have duly surren dered all their property and rights of property, and fully complied with and obeyed all the orders of the Court touching their bankruptcy. The question thereupon arises, whether their application for a discharge was brought within the period fixed by section 5108 of the Revised Statutes. That section was amended by the Act of July 26th, 1876, (19 U. S. Stat. at Large, 102), and the section, as amended, was declared to apply in all cases theretofore or thereafter commenced. The amendment consisted in the substitution of the words "before the final disposition of the cause," in place of the words "within one year from the adjudication of bankruptcy." |