(Ill.) Under the statute, deferring a stockholder's liability on unpaid stock until the assets are exhausted, a creditor cannot have a decree that the whole amount thereon due from a stockholder be applied in satisfaction of their debt, unless it be found that the assets are exhausted, and that all the other stockholders with whom he should prorate are insolvent.-Robertson v. Noeninger, 20 Ill. App. (20 Bradw.) 227.

(Ill.) The stockholders of an insolvent corporation will be liable to creditors to the extent that they have not given for their stock the equivalent in money.-Thayer v. El Plomo Min. Co., 40 Ill. App. 344.

(Ky.) A scheme under which an investment company did business set a part of the funds collected, 20 per cent. for a reserve fund, 65 per cent. for a general redemption fund, and 15 per cent. and the first two premiums for the expense fund. The expense fund was subject to the control of the board of directors. The scheme was impracticable, and the company was insolvent from the time it began business. The expense fund was not consumed by the expenses, and the directors in good faith declared dividends to the stockholders of the unexpended part. Such part was not withdrawn from the company, but a check was given to a stockholder for his dividends, who turned it back to the secretary, who credited the stockholder by the amount of his monthly premium on his certificates. Held, in a suit by the assignee of the company against the directors, who were certificate holders, that each should pay the amount he should have paid on his certificates, regardless of the dividends, with interest from the time the payments should have been made.-Ebelhar v. German American Security Co.'s Assignee, 91 S. W. 262. (La.) On the insolvency of a corporation, indebted to the state alone, it obtained a decree forfeiting its charter, and passed an act providing that its assets should be placed under the management of the state until payment of the claim due it, and placed the property in the hands of persons appointed by it. After the property had been in the possession of the agents of the state for a number of years it passed an act, placing its management in the hands of a board, the members of which, excepting three to be appointed by the state, were to be elected by the stockholders, and requiring such board to collect in annual installments from the stockholders a sum sufficient to satisfy the claim of the state. The stockholders accepted the act, and elected their members of the managing board thereunder, which passed a resolution requiring stockholders to pay a certain sum per share in annual installments, which, it was estimated, would be sufficient to pay the claim of the state. Held that, the amount collected from the stockholders having been insufficient, the state could not subject the stockholders to an additional assessment, even where the stockholders had failed to pay the first assessment, and prescription had run against the right of enforcing it.-Consolidated Ass'n of Planters of Louisiana v. Lord, 35 La. Ann. 425.

(La.) In an action by a receiver appointed to marshal the assets of a corporation to pay the balance due the creditors, defendant held liable to pay his subscription in cash, though he could have originally discharged his obligation by surrendering valueless stock in other corporations which he did not do. Webre v. Chastant, 52 South. 672, 126 La. 486.

(N. J.) When a corporation is insolvent, and its business is ended, the subscribers for or holders of its unpaid stock are assessable for only so much of what is unpaid on the stock as will satisfy the claims of corporate creditors, and meet the expenses of winding up its affairs.-Cumberland Lumber Co. v. Clinton Hill Lumber Mfg. Co., 42 Atl. 585, 57 N. J. Eq. 627.

(N. J.) Holders of stock of insolvent corporation not paid for held obligated to pay so much of what is unpaid on the stock as will satisfy the claims of corporate creditors, and meet expenses of winding up affairs.-Holcombe v. Trenton White City Co., 91 Atl. 1069, 82 N. J. Eq. 364, affirming decree (Ch.) 82 Atl. 618, 80 N. J. Eq. 122.

(N. J.) In a suit by the receiver of an insolvent corporation to enforce the liability of stockholders for unpaid stock, the amount necessary to be raised should be computed by ascertaining the amount due on the several claims allowed and proved, with interest, plus the fees of solicitors for the creditors in a proceeding to wind up the corporation and in the action to recover against the stockholders, plus a reasonable counsel fee and compensa

tion to the receiver and expenses incurred in the enforcement of the decree against the stockholders.-See v. Heppenheimer, 61 Atl. 843, 69 N. J. Eq. 36. (N. C.) The capital stock of a corporation, including unpaid indebtedness for stock, is considered, when required, as a trust fund for the creditors, and, on insolvency, any unpaid balance due the stock may be collected to the extent necessary for the payment of debts.-Whitlock v. Alexander, 76 S. E. 538.

(Or.) Under Const. art. 11, § 3, making stockholders liable for the debts of a corporation to the amount of their stock subscribed and unpaid, and B. & C. Comp. § 5065, providing that all sales of stock shall subject the purchaser to the payment of any balance due on the stock, a stockholder in an insolvent corporation is liable on the unpaid balance of his stock subscriptions for the debts of the corporation; his liability being an asset of the corporation, which the creditor may reach by a suit in equity.-Macbeth v. Banfield, 78 Pac. 693, 45 Or. 553, 106 Am. St. Rep. 670.

(Pa.)

The

Certain officers of a corporation subscribed for a quantity of the stock, giving their notes to the company for 50 per cent. of the subscription price, with the understanding that they were not to be called on to pay these notes, which were given as a loan to enable the company to undergo inspection, and to be surrendered to the makers when the emergency was over. notes were deposited in a bank subject to the order of the board of directors. A financial statement was published including these notes among the assets of the company. A dividend was declared, in which this stock participated. Subsequently, in pursuance of a resolution of the directors, the certificates for this stock were transferred to the company, and the notes were canceled and returned to the makers. The company became embarrassed, and went into the hands of a receiver, who filed a bill against these stockholders designated as "note stockholders" and the other stockholders of the company, to compel such an assessment on the unpaid installments of the stock as was necessary to meet the liabilities of the company. Held that, though the transaction was intended for the benefit of the company and was done in entire good faith, the "note stockholders" were primarily liable until they had paid an amount equal to that paid by other stockholders, and afterwards both classes were liable pro rata, the transaction being a fraud upon creditors.-Appeal of Miller, 1 Penny. 120.

(Wash.) In an action by a receiver for an unpaid subscription to capital stock, a charge that defendant is not liable to pay the whole of the unpaid balance of the subscription unless the same be necessary to pay the liabilities of the corporation is erroneous, the action being to recover what the court has declared to be due and payable.-Elderkin v. Peterson, 8 Wash. 674, 36 Pac. 1089.

(Wash.) Under Rem. & Bal. Code, § 3698, making each stockholder liable to creditors to the amount of his unpaid subscription to the capital stock, incorporators are liable to a receiver for the benefit of creditors for the par value of their stock less the proportionate part of the actual value of property transferred in payment thereof.-Davies v. Ball, 116 Pac. 833.

(Wash.) Where the capital stock of a corporation was wrongfully issued for a nominal consideration, the subscribers on its insolvency were liable to its creditors on their subscriptions.-German-American State Bank v. Soap Lake Salts Remedy Co., 137 Pac. 461, 77 Wash. 332.

(Wis.) Where stock in a corporation is issued to, and received by, shareholders without payment, on its insolvency, such shareholders are liable to the assignee and creditors for the par value of the stock so received by them, respectively, and also interest thereon from the time when they should have paid for their shares.-Shaw v. Gilbert, 86 N. W. 188, 111 Wis. 165.

DIAMOND CRYSTAL SALT CO. v. WORCESTER SALT CO.

(Circuit Court of Appeals, Second Circuit. February 9, 1915.)

No. 152.

1. TRADE-MARKS AND TRADE-NAMES 3-DESCRIPTIVE WORDS-SECONDARY MEANING.

Where the descriptive word "shaker," used in connection with salt, had obtained a secondary meaning as salt made by complainant, it was immaterial whether it originally referred to salt used in a shaker, or to salt made by the religious sect known as Shakers.

[Ed. Note.-For other cases, see Trade-Marks and Trade-Names, Cent. Dig. 88 4-7; Dec. Dig. 3.]

AND TRADE-NAMES 97 - ACTIONS

SCOPE OF RELIEF

2. TRADE-MARKS AWARDED. While in some cases a trade-name will be protected only in limited territory, where the salt business of both complainant and defendant was nation-wide, a decree protecting complainant's trade-name only in that part of the United States north of the thirty-eighth parallel and east of the 102d meridian, was improper.

[Ed. Note. For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 110, 111; Dec. Dig. ~97.]

3. TRADE-MARKS AND TRADE-NAMES 85-ACTIONS-DISMISSAL WITHOUT PREJUDICE.

Where, though complainant untruthfully advertised that its salt was absolutely pure and free from gypsum, there was no untruthfulness or deception in its trade-name, it was proper to dismiss a bill for unfair competition and infringement without prejudice to the right to file a new bill after the untruthful advertising had been abandoned, instead of dismissing it absolutely.

[Ed. Note. For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 94; Dec. Dig. 85.]

Appeals from the District Court of the United States for the Southern District of New York.

Archibald Cox and Robert W. Byerly, both of New York City, for complainant.

Bassett, Thompson & Gilpatric, of New York City (Edward M. Bassett and Wilson W. Thompson, both of New York City, of counsel), for defendant.

Before LACOMBE, COXE, and WARD, Circuit Judges.

WARD, Circuit Judge. [1] We do not think it necessary to add much to the careful opinion of Judge Learned Hand in this case. It makes no difference what the word "Shaker" in connection with salt originally meant; that is, whether is was salt to be used in a shaker or salt made by the religious sect known as Shakers. It is a descriptive word, which has been shown to have obtained a secondary meaning as salt made by the complainant.

[2] We do not agree that protection of this trade-name shall be restricted, as it has been by the decree of the court below, to that part of the United States north of the thirty-eighth parallel and east of the

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102d meridian. There have been cases where a trade-name has been protected only in limited territory, but the proofs show that the salt business of both parties to this suit is nation-wide.

[3] Although there is no decision of the Supreme Court giving to a complainant who has been guilty of untrue or misleading advertising a locus penitentiæ, as has been given to the complainant, there are some decisions in the lower courts to this effect. Moxie Case (C. C.) 153 Fed. 487; W. A. Gaines & Co. v. Turner-Looker Co., 204 Fed. 553, 123 C. C. A. 79. There is in this case no untruthfulness or deception in the name itself, but only in part of the complainant's advertising. We think it entirely equitable that the bill should be dismissed, not absolutely, but without prejudice to the right of the complainant hereafter to file a new bill, if it shall have shown that all untruthful advertising to the effect that its salt is absolutely pure and free from. any gypsum has been abandoned.

The decree, modified by striking out the territorial limitation, is affirmed.

(221 Fed. 67)

MILLER v. UNITED STATES.

(Circuit Court of Appeals, Fifth Circuit. March 1, 1915.)

No. 2546.

CARRIERS 37-RATES-REBATES-PENALTY.

Evidence held to sustain a judgment for penalties against defendant for knowingly soliciting and receiving rebates from the lawful and published rates on interstate shipments of grain.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 95, 927; Dec. Dig. 37.

What constitutes an unlawful preference or discrimination by a carrier under interstate commerce regulations, see note to Gamble-Robinson Co. v. Chicago & N. W. Ry. Co., 94 C. C. A. 230.]

In Error to the District Court of the United States for the Southern District of Georgia; Emory Speer, Judge.

Criminal prosecution by the United States against Harvey C. Miller. Judgment of conviction, and defendant brings error. Affirmed. See, also, 187 Fed. 369.

William W. Osborne and A. A. Lawrence, both of Savannah, Ga., and M. Hampton Todd, of Philadelphia, Pa., for plaintiff in error. Erle M. Donalson, U. S. Atty., and Alexander Akerman, both of Macon, Ga., for the United States.

Before PARDEE and WALKER, Circuit Judges, and MAXEY, District Judge.

PER CURIAM. We have carefully examined and fully digested the record in this case and conclude that the same shows no reversible error. The case conclusively shows that the 15-cent rate upon which appellant accepted the rebate was the legal rate for grain shipped from Philadelphia, Pa., to Jacksonville, Fla., and that the 10-cent rate claim

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 137 C.C.A.-2

ed to apply to grain originating west of a line from Pittsburg to Buffalo, which had formerly prevailed, was not a legal rate.

Under the evidence it cannot be disputed that the appellant was fully advised that the 15-cent rate was the legal rate in the premises, and in addition to this that the evidence tended to show that the appellant was informed and knew that the 10-cent rate, of which he was claiming the benefit, was not a legal rate, because the same had not been filed by the carriers with the Interstate Commerce Commission. It follows that there was no reversible error in rejecting the evidence tending to show that the 10-cent rate which appellant insisted upon as entitling him to the reduction which he accepted had been theretofore and prior to the Elkins Act (Act Feb. 19, 1903, c. 708, 32 Stat. 847 [Comp. St. 1913, §§ 8597-8599]) a well-known and recognized legal

rate.

Judgment affirmed.

(221 Fed. 68)

GRELLE et al. v. CITY OF EUGENE, OR., et al.

(Circuit Court of Appeals, Ninth Circuit. February 15, 1915.)

No. 2456.

1. PATENTS 252-DESIGNS-NEW ASSEMBLING OF OLD ELEMENTS. That each separate element in a patented design was old does not negative invention, which may reside in the manner in which they are assembled.

[Ed. Note.-For other cases, see Patents, Cent. Dig. §§ 394-396; Dec. Dig. 252.]

The test of infringement of a design patent is whether the two designs, viewed separately, would appear to be identical to the eye of an ordinary observer.

[Ed. Note. For other cases, see Patents, Cent. Dig. § 33; Dec. Dig. 28.]

3. PATENTS 328-VALIDITY AND INFRINGEMENT-DESIGN FOR LAMP POST. The Grelle design patent, No. 43,338, for a design for a five-light lamp post, held valid, but not infringed.

Appeal from the District Court of the United States for the District of Oregon; Chas. E. Wolverton, Judge.

Suit in equity by Charles Edward Grelle and the Independent Foundry Company against the City of Eugene, Or., and M. E. Griggs. Decree for defendants, and complainants appeal. Affirmed.

Suit by the appellants (plaintiffs in the court below) for damages for alleged infringement by appellees (defendants in the court below) of letters patent No. 43,338, for an ornamental design for a five-light lamp post, issued by the United States Patent Office to Charles Edward Grelle, on December 10, 1912, and for an injunction restraining the appellees, and each of them, from making, selling, or using any lamp post infringing such patent.

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