ical analysis, negative the use of coca. It is nevertheless highly probable that the author of these advertisements was influenced by knowledge of this stimulant used by the Bolivians when he called his preparation "Bolivian Nerve Food," and wrote his account of the "national drink." That there is another Bolivian plant which has such points of resemblance to coca, and is yet so different, and which forms the curative agent in Moxie, does not seem highly probable.

The evidence raises serious doubts as to Lieut. Moxie, the discoverer. The existence of Lieut. Moxie can hardly be regarded as a trade secret. No one but Dr. Thompson seems to have known about him, so far as this record discloses. The defendants' reference to the existence in Bolivia of a tribe of Indians known as "Moxas" or "Moxos" (Cent. Dict. & Cyc. [Ed. of 1900] Vol. 9, p. 696; Enc. Brittanica, Vol. 12, p. 825) suggests the possibility that the lieutenant's name "Moxie" is also of Bolivian origin, and that Lieut. Moxie and the sugar cane like plant are both derivatives from literature concerning Bolivia. Were it not for the statement concerning the discoverer, it would seem to have been natural to name a Bolivian nerve food after a Bolivian Indian tribe, the Moxas or Moxos. We may conceive, of course, that by some remarkable coincidence of names a Lieut. Moxie was traveling among the Moxas Indians when he made his discovery, but this does not seem highly probable.

It is by no means necessary to infer that Moxie Nervé Food was named either from the Moxas tribe of Indians or from Lieut. Moxie. Moxie is said by the defendants to be a botanical name, and they have introduced in evidence a box labeled "Moxie," which a botanical druggist of Lowell, Mass., says contained a drug which he had in his shop before Moxie Nerve Food was put on the market by Dr. Thompson, and which was called by the druggist "Moxie." There is also evidence as to the "Moxie berry" (see Plant Names, Scientific and Popular, A. B. Lyons, M. D., Detroit, Mich.); but this is not Dr. Thompson's plant either in quality or habitat. But wherever Dr. Thompson may have found the name "Moxie," there remains a strong suspicion that Lieut. Moxie got his name from Dr. Thompson.

According to the complainant's brief, the Moxie business was established in 1884 by Dr. Augustin Thompson, a homeopathic physician of Lowell, Mass. The defendants show that Dr. Thompson had taken a mortgage upon a tonic beer factory in Lowell, and subsequently took possession of the property in satisfaction of his debt, and continued the same business. The "Moxie Nerve Food" was apparently the result of variations of or additions to the formula for ordinary root or tonic beer, so-called.

The complainant has proved that Moxie has been the same in composition from the beginning. Upon a label adopted by the complainant since the beginning of this suit it is described as a "bitter tonic beverage." While there is evidence that, upon analysis, Moxie shows evidences of containing gentian and cinchona, and while Dr. Tuttle, the only physician who testifies as to the merits of Moxie, was of the opinion that Moxie has a tonic effect, in his opinion, "due in part to bitter principles contained," yet Dr. Thompson, in his application for registration of trade-mark, said:

"The material to be covered by this trade-mark is a fluid resembling in color the usual extract of vanilla; has a bitter taste with an associate taste like common "Tonic Beer.' The taste is from the flavoring extract. The base, or most useful part of this compound, is as tasteless as cornstalks."

The statements, therefore, that Moxie is a nerve food and a cure for paralysis, etc., cannot be supported upon the basis of any merit it may have by virtue of bitter principles which Moxie contains. The value as a nerve food and cure for paralysis is distinctly attributed to the supposed sugar cane like plant or simple starchy plant. This is what is referred to as "A little insignificant weed revolutionizing the habits of the world," and as "the richest predigested nerve food ever discovered." There is no claim by the complainant that the bitter ingredients of Moxie can justify the claims made for it.

Moxie was put up not only in liquid form, but in the form of lozenges. The statements concerning Moxie made in connection with these lozenges seem directly relevant to an inquiry into the true origin and ingredients of Moxie. Attention is called to the medicated Moxie Lozenges, respondent's Exhibit 37. On the box is the statement:

"The Moxie Nerve Food from which this Lozenge is made, has had the largest sale ever known in the history of trade, 5,023,741 quart bottles having been sold during the first fifteen months. It is generally believed

it has saved 228,000 drunkards, and 389,000 nervous wrecks during the last year."

This exhibit contains a printed sheet with the printed signature of A. Thompson, M. D.:

"288 Doses for 10 Cents.

"Will break colds, coughs, rheumatism, pneumonia and fever in their first stage. I used them 26 years for that purpose, in the largest practice in New England. After exposure, dose, one-eighth of a lozenge and wait. If an attack of rheumatism or pneumonia is treated, dose same every three hours until better. A. Thompson, M. D."

The date of this exhibit is not later than 1899. Subtracting 26 years from that date would throw the origin of Moxie back to 1873. This is not consistent with the statement in 1885 that it was lately introduced by Lieut. Moxie as a nerve food, and that it had been brought to Lowell and thoroughly tested for three months.

The defendants have offered in evidence other exhibits tending to show that Dr. Thompson was a writer of medical fiction, and an originator of marvelous discoveries, or, in other words, a manufacturer of several quack medicines. Public confidence is besought for the preparation upon the ground that it is a product of the medical knowledge and medical skill of an experienced physician. Moxie Nerve Food is presented to the public as the production of Augustin Thompson, M. D., "one of the most successful old physicians in New England." The qualifications and good faith of this expert are open to inquiry, and the inquiry is open whether Dr. Thompson's expert opinion as to Moxie was actually entertained or fraudulently stated. Missouri Drug Co. v. Wyman (Č. C.) 129 Fed. 623.

Upon the complainant's brief it is stated that the complainant company had filled unsolicited orders for Moxie Lozenges, Moxie Catarrh Cure, and Family Safeguard. Assuming that the present complain

ant is not responsible for any statements made as to "A Sunbeam" or "J. S. Q. Nerve Food," I think that the other preparations sold by the complainant are competent evidence.

Dr. Augustin Thompson was always connected with the Moxie business, and with the several owners, until his death in 1903, according to the complainant's brief. The brief states that in 1894, 10 years after the establishment of the business, 51,000 cases of 12 bottles each were sold; and in 1904, the year in which the bill of complaint was filed, 392,385 cases of 12 bottles each of Moxie were sold; and that the complainant produced in 1904 approximately 400,000 cases of Moxie. Thus, at the height of its business, after an expenditure of hundreds of thousands of dollars and of great efforts in advertising, the business had not reached the proportions stated upon the Moxie Lozenge box to have been attained within the first 15 months.

The defendants have also attempted to show by chemical analyses the nonexistence in Moxie of its advertised ingredient and qualities, The complainant has made a most elaborate and careful attack upon the analytical methods, and has devoted much testimony and argument to show the impossibility of an absolute analysis, either qualitative or quantitative, and the impossibility of determining from vegetable extractive matter the natural source or vegetable from which the extractive is derived. The defendants' chemists, however, are of known reputation and skill; and, while the analyses may not prove a negative with scientific certainty, they cannot be disregarded or dismissed as of no value. It is fair to say that, so far as careful analyses disclose, Moxie contains no ingredients which are recognized as of value as a nerve food or cure for serious diseases; that it corresponds in its composition with root or tonic beer, being composed principally of sweetened water and well-known flavorings, with indications of gentian and cinchona; and that it is practically devoid of predigested solids. Mr. Wyatt was of the opinion that the extractive bodies were a mixture of cinchona and some other bitter roots or plants such as gentian or chiretta or quassia, either of which give a similar taste.

While we may concede that the complainant has shown the possibility of the existence of a small amount of an unidentified agent of remarkable virtues, the probability that there is such ingredient, and that such ingredient corresponds to the various descriptions of it by the complainant, is very slight.

The defendants have also introduced the testimony of a large number of eminent physicians, who are of the opinion that the language of the label and wrapper of Moxie are untrue and deceptive. Among these are Drs. Edward Cowles, George F. Jelly, and John P. Sutherland, of Boston; Dr. George S. Adams, of Westboro, Mass., of the homeopathic school, who states that the preparation is inconsistent with the principles of homeopathy; Drs. William J. McCaw, George L. Shattuck, and Frederick T. Rogers, of Providence; and Dr. Eunice D. Kinney, of Revere, Mass. This evidence seems to me of great weight in determining whether Dr. Thompson did in fact have either the opinions or ingredients which he claimed to have, and whether the present complainant has acted in good faith.

The most liberal allowance should be made for difference of medical opinions. Moxie Nerve Food Co. v. Holland (C. C.) 141 Fed. 202. Conceding that a preparation which is put forth with honest claims may be entitled to protection though these claims are contrary to the weight of medical authority, and recognizing that this court should not sit as a court of medical inquiry to settle differences of medical opinion, we have the question of fact, does Moxie contain any such ingredient as it is represented to contain?

Dr. Frederick T. Rogers says:

"It is impossible, with the thousands of enthusiastic and educated men who are investigating and studying the medicinal virtues of the world's flora, that any one man should discover and appropriate to his own uses any plant which possessed in any degree the properties ascribed to the principal ingredient of Moxie without its becoming common knowledge, and there is not in materia medica any single or combined vegetable agent which possesses these powers."

This opinion, taken in conjunction with the statements of the Bolivian origin and the extensive use of the article as a national drink, seems to be reasonable. If in fact there is an article of general use which has so many of the beneficial properties of erythroxylon coca, and no detrimental qualities, it seems improbable that it should not have become known to materia medica.

Dr. Rogers further says:

"Any adequate knowledge of the complex nature of the nervous system of the human body, of the metabolism occurring in health and disease, and of the structural and functional changes which present to the clinician and pathologist in the diseases which it is claimed are cured by the use of Moxie, will absolutely controvert the statement that any food will cure the diseases specified, viz., cerebral softening, locomotor ataxia, or insanity, with their attendant structural changes. It would be quite as probable to assert that such a food would lengthen a leg shortened from tubercular hip-joint disease, would replace pulmonary tissue destroyed by a suppurative process, restore sight to an eye blind from atrophy of the optic nerve, or preserve the integrity of an organ the seat of a cancerous inflammation."

To meet this testimony of Dr. Rogers, the complainant has introduced in rebuttal the testimony of Dr. Richard T. Bang, of New York, who states:

"I do not believe that anything stated on the label is impossible, and if Moxie Nerve Food contains the proper ingredients it is also quite probable."

He criticises the statement of Dr. Rogers that there is no plant known in medicine which could possibly have the effect such as is claimed for Moxie Nerve Food, and states that he has personally known of a plant which grows in Brazil, and which is known as "Fedegosa," which contains a marked amount of nerve food known as "lecithin." He states that he knows it to be a physiological fact that lecithin is also found in all of the cereal grains, such as wheat, rye, oats, etc., and peas, beans, and lentils; and that it is also found in the cellular juice of many plants. He was of the opinion that lecithin. itself possesses the powers ascribed to Moxie Nerve Food in its label and advertising.

Dr. Alfred H. Tuttle, of Cambridge, Mass., testified that he had used Moxie in many cases of nervous exhaustion, in conjunction

with other treatment, and in some instances practically it was the only treatment. He was asked:

"From your observation, can you state what the physiological effects of Moxie are when exhibited in cases of nervous exhaustion? A. It produces a mild evacuation of the bowels, and increases the flow of urine, and promotes the appetite. It causes a mild sense of well being which is evidently of a tonic nature, because there is no after reaction which would come, in the sense of the question, from stimulation. Digestion, assimilation, and nutrition are improved, and in the course of time there is a general improvement in the physical and mental conditions of the patient in many cases. * * It tends to eliminate the waste deleterious products of the body, and secondly promotes the healthy reconstruction.

"I consider Moxie as a valuable adjunct in the treatment of all cases of nervous disorders caused by nervous exhaustion, and in many cases, is all the treatment, excepting rest, fresh air, and restricted diet, that is necessary.”

The result of this is that one of the complainant's physicians is of the opinion that the statements made on the Moxie bottle are not scientifically impossible, though he gives no opinion as to the merits of Moxie; and that another physician, without a knowledge of its composition, has used Moxie in many cases of nervous exhaustion.

If we assume that the complainant has a reasonable basis for a belief that Moxie can accomplish or has accomplished what is claimed for it, there is force in the complainant's argument that we should not inquire too closely whether it acts as a specific which feeds the nerves or as a tonic and laxative which eliminates waste products of the body and thus effects the claimed effects.

In the patent law, if an inventor makes a machine that works, he does not lose his rights by a mistaken and erroneous statement of the theory or principle upon which it works. On similar principles, if Moxie has such effects as it is represented to have, we might disregard as unimportant an inquiry into the way it works, provided there were room for a difference of opinion. But, assuming that Moxie is believed by the complainant's officers to be all that Dr. Tuttle claims for it, this is no warrant for representing to the public that it has recovered brain and nervous exhaustion; also paralysis, softening of the brain, locomotor ataxia, and insanity when caused by nervous exhaustion; has recovered a host of helpless cases of paralysis, or that a tumbler full will break a recent intoxication in an hour; and does not detract from the value of the testimony of the eminent physicians who believe these claims to be without foundation and fraudulent, and who believe that the simple starchy plant is a pure fiction.

Even where a preparation is shown to have greater virtues than those of the falsely advertised ingredient, as in Worden v. California Fig Syrup Co., 187 U. S. 534, 23 Sup. Ct. 161, 47 L. Ed. 282, this is no excuse for misrepresentations as to ingredients. In addition. to the intrinsic improbability of the story about the sugar cane like plant, and the heightening of this improbability by the testimony of chemists and doctors, the defendants offer the testimony of a former employé which tends to show the nonexistence of this ingredient.

George P. Walker, who appears to have been intimately associated. with Dr. Thompson for several years in the Moxie business, testifies that he continued the manufacture of Moxie six years, using a formula