as it is held that he is asking for the privilege of a discharge, to bring the matter on before the referee. In the Eastern district of New York no uniform rule for reference to a special master has been adopted; but, inasmuch as the court could not find opportunity to dispose of these issues, each one has been referred to a special master, and rule 41 adopted, by which the objecting creditors have been compelled to arrange for the hearings before the referee as special master, and therefore, inferentially, to see that an order of reference has been entered. In the case at bar the attorney for the objecting creditors, apparently in reliance upon the rule in the Southern district, has done nothing, and the attorney for the bankrupt, following the rule in the Eastern district, has also taken no steps. Without further comment or discussion, and as rule 41 covers the practice in the Eastern district, it seems to the court that the issues raised by the objecting creditors on the application of the bankrupt for discharge should be referred to the referee as special master to take testimony and report thereon, and the clerk will enter an order accordingly. Thereafter it will be the duty of the objecting creditors to arrange for a hearing under rule 41. 1 In re LUBER et al. (District Court, E. D. Pennsylvania. March 8, 1907.) No. 2,392. BANKRUPTCY-TRIAL ON INVOLUNTARY PETITION-EVIDENCE. Where a fraudulent transfer of property is charged as an act of bankruptcy, in an involuntary petition, great latitude in the admission of evidence should be allowed on the trial, and all the circumstances fairly connected with the transaction may be shown. In Bankruptcy. On motion for new trial. J. B. Colahan, for petitioning creditors. HOLLAND, District Judge. The averment in the involuntary petition in bankruptcy in this case was that the alleged bankrupts conveyed, transferred, concealed, and removed merchandise with intent to hinder, delay, and defraud their creditors. In the investigation of questions of fraud, as a rule, great latitude is allowed in the admission of evidence, in order that the jury may be able to determine from all the circumstances whether the transaction was fraudulent or not. Questions of fraud can scarcely ever be proven by direct evidence, hence the necessity for the admission of all the circumstances fairly connected with the transaction. All the evidence to which objection was made was clearly admissible, nor can I agree with the exceptants that there was error in the charge of the court. The motion and reasons for a new trial are overruled. In re BROMLEY. (District Court, E. D. Pennsylvania. February 28, 1907.) No. 2,491. BANKRUPTCY-OBJECTIONS TO DISCHARGE-AMENDMENT. Specifications of objection to the discharge of a bankrupt which are in the language of the statute without more, and contain no statement of facts, are not amendable. [Ed. Note. For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 716.] In Bankruptcy. On petition to amend. Morgan & Lewis and R. Stuart Smith, for petitioner. HOLLAND, District Judge. The petition of W. F. Bay Stewart for leave to amend specifications of objection to the discharge of the bankrupt should be refused. The original specifications were in the language of the act, and nothing more. There is no statement of fact on which an amendment can be grafted, and leave to amend should not be granted where only the words of the statute are used. In re Pierce (D. C.) 103 Fed. 64; In re Mudd (D. C.), 105 Fed. 348; In re Peck (D. C.) 120 Fed. 972. It is so ordered. MOXIE NERVE FOOD CO. OF NEW ENGLAND v. MODOX CO. et al. (Circuit Court, D. Rhode Island. February 20, 1907.) 1. TRADE-MARKS AND TRADE-NAMES - SUIT FOR INFRINGEMENT — BURDEN OF PROOF. A complainant, seeking the aid of a court of equity in protection of his rights in a proprietary medicine, should be required as a part of his affirmative case to allege and prove that his preparation is what it purports to be, and is represented to the public to be, there being no presumption that such representations are true upon which a court can act. 2. SAME SECRET PREPARATION. While the proprietor of a secret preparation is entitled to protection of his trade secret, yet to the extent that he has revealed or represented the character or composition of his preparation to the public he has waived secrecy, and there is no hardship in requiring him to prove the truth of such representations to a court of equity whose aid he invokes for its protection. 8. SAME RIGHT TO RELIEF IN EQUITY-FRAUDULENT REPRESENTATIONS TO PUBLIC. Complainant manufactured and sold in bottles, a liquid called "Moxie Nerve Food" or "Moxie," which was represented to the public by the labels and wrappers to have been prepared "from a simple sugar cane like plant grown near the equator," discovered by a Lieutenant Moxie, and to be a nerve food which had recovered brain and nervous exhaustion: also paralysis, softening of the brain, locomotor ataxia, and insanity, when caused by nervous exhaustion. In a suit for an injunction restraining infringement of the trade-mark under which the preparation was sold and unfair competition, the bill did not allege that such representations were true, nor that the preparation contained such ingredient or the properties so claimed for it; and no evidence was introduced to show that it contained any ingredient which warranted the name of "nerve food," or to show a reasonable basis for a belief that the statements as to its curative powers were true. On the other hand, defendant introduced the evidence of physicians and chemists who made analyses of the preparation and of a former employé of complainant, which established affirmatively a very strong probability that the statement that the liquid was a preparation from a plant such as described was pure fiction, and that it was merely root beer, containing no nerve food or other curative agent, except perhaps a small amount of a bitter principle such as gentian or cinchona. Held, that under such state of the evidence, complainant was not entitled to the protection of a court of equity even as against undoubted infringement and unfair competition. [Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 94.] 4. SAME. Where a proprietary preparation purchased and used largely as a mere beverage was also falsely and fraudulently represented by its manufacturer to contain valuable medicinal ingredients, a court of equity cannot afford protection to any part of its business against infringement of trade-mark or unfair competition. [Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 94.] In Equity. On final hearing. Oliver Mitchell, Robert Cushman, James A. Bailey, Jr., and Roberts. & Mitchell (Charles D. Woodberry, of counsel), for complainant. Charles A. Wilson and George H. Huddy, Jr., for defendants. BROWN, District Judge. This is a bill in equity brought by the Moxie Nerve Food Company of New England, manufacturers of a liquid known as "Moxie Nerve Food" or "Moxie," against the Modox Company and others, manufacturers of a beverage called "Modox," charging that the defendants have infringed the complainant's trademark rights, imitated its trade-name and goods, and in various ways have been guilty of unfair competition. The defendants contend that the complainant has been guilty of such false representations to the public that, under the principles set forth in Worden v. California Fig Syrup Co., 187 U. S. 516, 23 Sup. Ct. 161, 47 L. Ed. 282, it is barred from the right to seek the aid of a court of equity. Before considering the defendants' specific charges of fraud, it is proper to inquire whether the complainant has made out a case for equitable relief. In Moxie Nerve Food Co. of New England v. Holland (C. C.) 141 Fed. 202, this court referred to the language of the Supreme Court in Deweese v. Reinhard, 165 U. S. 386, 390, 17 Sup. Ct. 340, 341, 41 L. Ed. 757: "The right, whatever it may be and from what source derived, must be not only one not protected by legal title, but in and of itself appealing to the conscience of the chancellor. A court of equity acts only when and as conscience commands, and if the conduct of the plaintiff be offensive to the dictates of natural justice, then, whatever may be the rights he possesses and whatever use he may make of them in a court of law, he will be held remediless in a court of equity." It is incumbent upon the complainant to move the conscience of the chancellor. It is shown, and is not denied, that the complainant's article "Moxie" or "Moxie Nerve Food" is a harmless beverage which for many years has had a very large sale. It also appears that it is offered to the public as a "Nerve Food," or "food for the nervous system," and as a cure for nervous disorders; and that there is a public demand for the article as a cure for nervous disorders. The trade-mark which the complainant desires to protect was registered in the Patent Office in September, 1885, upon a statement and declaration by Dr. Augustin Thompson: "This trade-mark I have used continuously in my business since April 1, 1885, and the particular description of goods is a liquid preparation charged with soda for the cure of paralysis, softening of the brain, and mental inbecility, and called the 'Moxie Nerve Food.' It is comprised in the class of medical compounds." Upon the label accompanying the declaration was the statement: "Moxie Nerve Food. Has not a drop of medicine, poison. stimulant, or alcohol in its composition; but is a simple starchy plant grown in South America, and the only positive nerve food known that can recover brain and nervous exhaustion, and loss of manhood at once unaided. It has cured paralysis, softening of the brain, and mental imbecility," etc. It also appears that, at the time of the filing of the bill, Moxie was represented to the public as a nerve food or a food for the nervous system, and as a preparation containing an ingredient of remarkable. curative powers, as will appear from the following copy of the label affixed to the bottles: More Palatable if Served Ice Cold. Moxie Nerve Food. Trade-Mark Registered. Keep in Cool Place. A Food for the Nervous System, also a Delicious Beverage. Contains Not a Drop of Poison, Stimulant, or Alcohol. It is prepared from a simple sugar cane like plant grown near the equator. It was lately discovered by Lieut. Moxie, who placed his discovery in the hands of Dr. Augustin Thompson who has demonstrated its value as a food for the nervous system. It has proved itself the only harmless and effective nerve food known to science and has recovered brain and nervous exhaustion, also paralysis, softening of the brain, locomotor ataxia and insanity, when caused by nervous exhaustion. It nourishes the nervous system, gives a durable solid strength without stimulation or reaction, creates a vigorous, healthy appetite, removes fatigue from mental and physical overwork and brings refreshing sleep at night. Does not interfere with the action of vegetable medicines. The genuine is put up only in bottles of this shape, and Boston, Mass. is never drawn from soda fountains. Moxie Nerve Food Co. of New England, Sole Proprietors and Manufacturers. Branch, N. Y. City. The The wrapper of the Moxie bottle, furthermore, contains many statements as to curative virtues in "helpless cases of paralysis." bill alleges: "That the beverage 'Moxie,' is a meritorious and useful article well esteemed for its tonic action and its useful and remedial effects under certain conditions and diseases, and that it is recognized by reputable members of the medical profession as a meritorious preparation, and is and has been by them prescribed when indicated, and public institutions such as hospitals, homes for consumptives and the aged and infirm, and the like, have been at their request supplied with 'Moxie' for the use of the inmates." 152 FEDERAL REPORTER. A comparison of the allegations of the bill and the actual representations made to the public as to the character of Moxie reveals an important discrepancy. It is the duty of a complainant seeking relief in a court of equity to present his case fully and fairly in his bill. The complainant, in seeking protection for its trade-mark, seeks protection for the business associated with the trade-mark. The trademark and the business are inseparable. Paul on Trade-Marks, 136. A complainant in equity, therefore, should show fully and fairly what is the business which he is conducting under the trade-mark. He cannot aid his case by omitting material facts as to the true nature of his business. ர் In McMullen v. Hoffman, 174 U. S. 639, 656, 19 Sup. Ct. 839, 846, 43 L. Ed. 1117, it was said: "It is a maxim in our law that a plaintiff must show that he stands on a fair ground when he calls on a court of justice to administer relief to him."" In Moxie Nerve Food Co. of New England v. Holland (C. C.) 141 Fed. 202, 204, it was said, "The statements upon the label or wrapper of a patent medicine bottle do not prove themselves." upon the bottles are mere recitals. They prove what representations The statements are made by the complainant to the public. They do not prove the truth of the representations. These recitals are proof only that they are recitals. Murphy v. Packer, 152 U. S. 398, 14 Sup. Ct. 636, 38 L. Ed. 489; Herron v. Dater, 120 U. S. 464, 7: Sup. Ct. 620, 30 L. Ed. 748. In the Holland Case above cited, it was queried whether it would not be reasonable for a court of equity to hold that a complainant seeking to protect his proprietary rights as the owner of a patent medicine should produce legal evidence that it is in fact what it purports to be. Upon a further consideration of this point, I am of the opinion that the complainant, according to the ordinary principles of equity pleading and procedure, should be required, as a part of its affirmative case, to show that its preparation is what it purports to be. If a complainant seeks protection in the sale of bottled goods, he should be willing to swear that his bottles contain what he represents to the public that they contain, and that his goods are in fact what they are sold for. If a complainant in a bill in equity should allege, "I am selling to the public under a certain trade-mark an article which I represent to the public as fig syrup," such a bill, in my opinion, should be demurrable on the ground that the complainant has no right to protection in a mere business of making representations to the public, but only in a bona fide business of selling an article for what it is in fact. A court of equity should not extend protection to a business of selling medicine for paralysis or other serious diseases simply upon proof that the preparation is a harmless beverage with some slight tonic properties. Missouri Drug Co. v. Wyman (C. C.) 129 Fed. 623, 629. The complainant's affirmative case affords no evidence upon which the court can find that its preparation is in fact what it is represented to be. We are asked to extend protection to the complainant upon presumptions in its favor. If this court should act upon the presump |