litigation; he might concede in this court that the court below erred, and that this court should now enter judgment for the appellant for the full amount claimed. It is to my mind inconceivable that a receiver has such right to dispose of the property of the formal parties to the record below. The appeal record I think fatally defective for lack of parties. Kidder v. Fidelity Ins. Co., 105 F. 821, 823, 44 C. C. A. 593; Gray v. Havemeyer, 53 F. 174, 3 C. C. A. 497, and

cases cited.

There is clearly nothing in Bosworth v. Terminal Association, 174 U. S. 182, 19 S. Ct. 625, 43 L. Ed. 941, or in Coffey, Receiver, v. Gay, 191 Ala. 137, 67 So. 681, L. R. A. 1915D, 802, or in High on Receivers (4th Ed.) § 314, lending support to the proposition that, under such circumstances as obtain here, intervening parties, whose rights in the distribution of the insolvent estate are to be cut down, are not indispensable parties.

Petitions by Kock Shing and by Kock Tung against John P. Johnson, Commissioner of Immigration, for writs of habeas corpus. From orders granting the writs, respondent appeals. Reversed, petitions dismissed, and petitioners remanded to custody.

John W. Schenck, Asst. U. S. Atty., of Boston, Mass. (Robert O. Harris, U. S. Atty., of Boston, Mass., on the brief), for appellant.

Everett Flint Damon, of Boston, Mass., for appellee.

Before BINGHAM, ANDERSON, and JOHNSON, Circuit Judges.

BINGHAM, Circuit Judge. [1] A majority of the court are of the opinion that the District Judge erred in discharging Shing and Tung from the custody of the immigration authorities and allowing them to enter the country. The decision of the Immigration Department was final, if made "after a hearing in good faith, however summary

SHING.

SAME v. KOCK TUNG.

(Circuit Court of Appeals, First Circuit. uary 14, 1924. Rehearing Denied March 27, 1925.)

1. Allens

Nos. 1740, 1741.

54-Decision of immigration officials, denying entry on fair hearing, is final.

The decision of the Immigration Department, denying admission of an alien, if made in good faith, after a fair hearing, is final, and unless and until the contrary is shown is not reviewable on the merits by a court in habeas corpus proceedings merely because the court may think the decision is wrong.

2. Aliens 54-Immigration officials are not restricted to legal evidence on hearing before them.

Immigration officials, before whom a hearing is had on application for admission, are not restricted in the reception of evidence to such only as would meet the requirements of legal proof, but may receive, and determine the questions before them upon any evidence that seems to them worthy of credit.

3. Aliens 32(8)-Decision excluding alleged sons of Chinese citizen held made after fair

trial.

The record held to show that an order ex

cluding alleged sons of a Chinese citizen seeking admission was made after a fair hearing. Anderson, Circuit Judge, dissenting.

Appeal from the District Court of the United States for the District of Massachusetts; James M. Morton, Jr., Judge.

established by proof that the Department's decision "was wrong." Chin Yow v. United States, 208 U. S. 8, 12, 13, 28 S. Ct. 201, 52 L. Ed. 369; Tisi v. Tod, 264 U. S. 131, 44 S. Ct. 260, 68 L. Ed. 590.

[2] The record fails to show that they were denied any right essential to a fair hearing. They were heard and reheard. The officials before whom the hearings were had were not restricted in the reception of evidence to only such as would meet the requirements of legal proof, but could receive and determine the questions before them upon any evidence that seemed to them worthy of credit. Munsey v. Clough, 196 U. S. 364, 372, 25 S. Ct. 282, 49 L. Ed. 515; State v. Clough, 72 N. H. 178, 179, 55 A. 554, 67 L. R. A. 946, and cases cited; Tang Tun v. Edsell, 223 U. S. 673, 677-682, 32 S. Ct. 359, 56 L. Ed. 606; Bilokumsky v. Tod, 263 U. S. 149, 157, 44 S. Ct. 54, 68 L. Ed. 221.

[3] Shing and Tung, at the time they sought admission to the country, were 24 and 25 years of age, and Hing, the alleged father, and a citizen of this country, at that time, had not been in China for over 20 years. The statement given by On, the brother of the alleged father, in connection with his application for a return certificate

in 1913, was properly received in evidence, and before the final deportation order was made the applicants were given full opportunity to answer it. The statement was that his brother Hing was unmarried, and, as a witness for the applicants at one of the hearings before the officials, On testified that his 1913 statement was true. The testimony of the applicants as to this matter was, in substance, that his statement was untrue, and that On had quarreled with Hing shortly after their arrival in this country some 20 years before. Because the immigration officials gave weight to this statement, and some other inconsistencies in the testimony given by the applicants, and concluded that Shing and Tung, who were seeking admission as sons of Hing, were not his sons, the District Judge was of the opinion that the "conclusion could not be reached by a fair-minded tribunal," and was "arbitrary and unfair." In other words, he concluded that the 1913 statement and the testimony of On were untrue, and, this being so, the decision of the immigration officers ran counter to all credible evidence before them, and was arbitrary and unfair. It amounted, however, to nothing more than saying that their decision was wrong. This, as above pointed out, was beyond the province of the court. It is evident that, without weighing the evidence given before the immigration officials, and concluding that the statement and testimony of On were untrue, this conclusion of the court could not have been reached.

In Nos. 1740 and 1741 the orders of the District Court discharging Kock Shing and Kock Tung from custody are set aside, the petitions are dismissed, and they are remanded to the custody of the Commissioner.

ANDERSON, Circuit Judge (dissenting). As set forth in Judge Morton's unpublished opinion in the District Court, the two applicants and their alleged father and three apparently disinterested parties (six in all) testified positively that the applicants were sons of an admitted citizen of the United States. There was no room for mistake; their testimony was either intentionally and absolutely false, or the applicants were entitled to admission.

Fully agreeing that all substantial questions as to the weight and credibility of testimony are for the immigration tribunals, and not for the courts on habeas corpus

proceedings, I am constrained to the same result reached by Judge Morton—that in these cases there was no such showing of discrepancy as to any material fact, or indication of mendacity, as to warrant any competent and fair-minded tribunal in finding that the applicants' cases were grounded on the perjured testimony of six wit

nesses.

I concur in Judge Morton's view: "A study of the record leaves the impression that the immigration tribunals were at that stage of the proceedings trying to justify a position against the applicants rather than considering the case on its merits."

The gist of the case was whether the immigration authorities had any jurisdiction to exclude the applicants as aliens. Ng Fung Ho v. White, 259 U. S. 276, 284, 42 S. Ct. 492, 66 L. Ed. 938; Bilokumsky v. Tod, 263 U. S. 149, 153, 44 S. Ct. 54, 68 L. Ed. 221.

The legal issue is precisely the same as would be presented if a foreign-born son of an American ambassador or of an American missionary tried to come home. If accorded the treatment given sons of Chinese citizens, he would be held at the port, incommunicado, and then by the immigration authorities subjected to "third degree" inquisitorial examination in an endeavor to catch him in such discrepancies as to trifling facts in his early history and environment, or as to statements made by relatives, as might ground a finding that he was only a pretended, and not a real, son of the American ambassador or missionary.

Recognizing that the Supreme Court has made a distinction between deportation proceedings and exclusion proceedings (259 U. S. 281, 42 S. Ct. 492, 66 L. Ed. 938; 263 U. S. 152, 44 S. Ct. 54, 68 L. Ed. 221), it seems to me clear that on such an issue

as that of jurisdiction to try the citizenship of an alleged American citizen, knocking at the gate, we ought not to scant the meaning of the phrase "due process of law." The right of citizenship is at least as important as any property right. I cannot concur in proceedings which deal with it flippantly or unfairly. I think these applicants were deprived of due process of law, and that a wrong decision was reached by proceedings "manifestly unfair." Kwock Jan Fat v. White, 253 U. S. 454, 40 S. Ct. 566, 64 L. Ed. 1010; Tang Tun v. Edsell, 223 U. S. 673, 681, 32 S. Ct. 359, 56 L. Ed. 606.

plaintiff extended the sale of its bread as "Bond" bread to some 20 cities and expended over $3,000,000 in advertising, apparently all directed to pushing "Bond" bread. But, so far as appears, in each city plaintiff represented its "Bond" bread to be of local genesis (as it did later in Rhode Island), and hence different from the "Bond" bread sold elsewhere.

On January 11, 1921, plaintiff notified defendant that it claimed that his use of the name "Liberty Bond" on bread wrappers was an infringement of its alleged trademark "Bond." This was preliminary to introducing "Bond" bread to Rhode Island.

In March, 1921, plaintiff advertised in the Providence newspapers a prize contest among the women of Rhode Island in making bread. It announced that prizes amounting to $1,000 would be awarded to the 121 women who submitted the best loaves of bread and that

"The prize-winning loaves will be taken as a model from which the General Baking Company will produce Bond bread. This Bond bread will be offered to the public after the expert bakers analyze the loaves the prize-winners submit, and copy their ingredients and qualities as modern baking science really can. These prize-winning loaves will be taken as ideals, which the General Baking Company will copy and incorporate in a new loaf of bread to be called Bond bread."

Also:

"This will be called Bond bread because it will be guaranteed by the Bond of the General Baking Company, to possess the same pure 'home' ingredients, the same homemade taste, the same crust, and the same texture as the best homemade loaves which your committee of well-known Rhode Island women judges will choose.

"We will make bread your way.

"And every day more and more Rhode Island people are adopting this 'child' of those public-spirited women who submitted their homemade loaves."

Thus, and otherwise, plaintiff represented that it would offer on the Rhode Island market a new bread, made in accordance with the ascertained, composite, bread-making skill of Rhode Island housewives, and that "Bond" would mean a guaranty by the plaintiff of conformity to the high standard thus learned from Rhode Island housewives. The scheme thus advertised sharply contrasts with the usual process of introducing, from without, an old, standardized product, alleged to be better than that in current lo

cal use. But such was the plaintiff's scheme for expanding its business in various cities. Its vice president testifies that these methods were used in at least eight or ten cities.

This advertising was wholly mendacious. The bread made and sold in Providence was not modeled on the composite skill of Rhode Island women breadmakers. It was made in accordance with the formula that the plaintiff had used, generally, for bread, since 1915. No changes were made in the formula, used in Providence, or in any other cities where like bread-making contests were carried on, in order to conform to a standard derived from bread made by the competing women. The bread these flattered women bought was no "child" of their combined skill. It originated in New York, and was of doubtful parentage.

Plaintiff's chief witness testifies:

"X.Q. 194. Were these advertisements substantially the same in all those eight or ten cities? A. I think so.

"X.Q. 195. And in each one of those eight or ten different cities you gave the people of those cities the distinct impression that in making this Bond bread you were going to depend on the advice and counsel of the contests of the different housewives that these different localities gave you, didn't you? A. Yes, sir.

"X.Q. 196. And at the same time you had your own formula all through the country, and you were following it previous to that, and you have followed it since? A. Yes."

On this state of facts, we are constrained to hold that the plaintiff had no good will or other rights in the name "Bond," as applied to bread sold in Rhode Island, which it can ask a court of equity to protect. The alternatives are these:

[2] If the Rhode Island "Bond" bread had had the genesis that the plaintiff advertised, the plaintiff would have had no rights in a trade-mark, growing out of its previous use of the mark elsewhere, for in Rhode Island "Bond" would have meant a new bread. As the advertising as to the genesis of the Rhode Island Bond bread was false, it gained no rights in Rhode Island as to the future. See Worden v. California Fig Syrup Co., 187 U. S. 516, 23 S. Ct. 161, 47 L. Ed. 282, and cases cited; particularly Manhattan Medicine Co. v. Wood, 108 U. S. 218, 224, 2 S. Ct. 436, 27 L. Ed. 706. this case, plaintiff was held disentitled to any relief because dishonestly advertising that its medicine was manufactured by Moses Atwood, of Georgetown, Mass., when in fact it was manufactured by the Manhattan

In

Medicine Company, of New York City. A fortiori, in the case at bar, the plaintiff is entitled to no protection in a trade grounded upon representations that it was making Rhode Island bread in accordance with the composite skill of Rhode Island housewives, when in fact it was palming off the same kind of product that it had used for five or six years in various other places.

[3] It should never be overlooked that trade-mark and unfair competition cases are affected with a public interest. A dealer's good will is protected, not merely for his profit, but in order that the purchasing public may not be enticed into buying A.'s product when it wants B.'s product. In meritorious cases of this kind, the plaintiff is acting, not only in his own interest, but in the public interest. The situation is radically different from that which arises in cases of alleged infringement of a copyright or a patent, under which the rights originate in a monopoly grant from the government. The existence and extent of such monopolies are therefore, except as they reward and thus promote ingenuity, adverse to the rights of the purchasing or using public. In one aspect, the alleged infringer of a copyright or of a patent is in a fight for the public interest to make a free and open field. But unfair competition-of which trademark infringement is but a part (United Drug Co. v. Rectanus Co., 248 U. S. 90, 97, 39 S. Ct. 48, 63 L. Ed. 141)-is, broadly speaking, grounded on the right of both dealer and purchasing public to be protected from frauds of which both are victims. Dadirrian v. Yacubian, 98 F. 872, 876, 39 C. C. A. 321. In these cases, the infringer works a fraud upon dealer and customer alike; his palming off is piracy pure and simple.

We are therefore driven to the conclusion, apparently reached, although not quite flatly stated, by the court below, that the plaintiff has in Rhode Island no trade-mark right in the word "Bond." What rights, if any, it has elsewhere, is a question not now before us. So far as appears, the plaintiff's Rhode Island trade was entirely intrastate, as was the defendant's. It made and sold bread in Rhode Island. It does not appear to have imported it from outside plants, or to have exported it from the Providence plant. For this, as well as for other fully adequate reasons, it is impossible to attach any significance to its federal registration of its trade-mark for interstate business.

The general result is that if, as between "Bond" and "Liberty Bond," as applied to

the sale of bread in Rhode Island, there be any infringement, plaintiff is infringing upon the defendant's rights, not the defendant upon the plaintiff's rights. If the plaintiff's claim "that 'Bond' and 'Liberty Bond' are deceptively similar" is sound, plaintiff is responsible for the deception.

While the court below was "of the opinion that there is not in fact any deceptive similarity between the labels of plaintiff and defendant, and that the possibility of confusion is slight," we think that question should be left open for any further proceedings found necessary, in the light of competitive experience, to protect the defendant and the purchasing public.

Perhaps it is well to add that, if we assume the facts to be substantially as the plaintiff claims them to be, this case falls within the doctrine of the Rectanus Case, supra, and the Hanover Milling Case, 240 U. S. 403, 36 S. Ct. 357, 60 L. Ed. 713, applied by this court in the Narragansett Dairy Case, 262 F. 880. The defendant adopted in good faith, as the court below found, the trade-mark "Liberty Bond" as early as August, 1917. The plaintiff made no attempt to sell bread in Rhode Island as "Bond" bread until March, 1921, ten years after it began operation in Providence. At that time the defendant had a good will in its trade-mark, apparently covering Rhode Island. 240 U. S. 426, 36 S. Ct. 365. Plaintiff was a later comer with its "Bond" bread (assuming for the moment that "Bond" bread and "Liberty Bond" bread would cause any confusion in the use), and could not destroy or encroach upon the defendant's good will in its trade-mark earlier adopted.

We repeat here what we said in the Narragansett Dairy Case, 262 F. 880, 881, referring to the Rectanus Case, supra:

"The legally significant facts are, we think, on all fours with the case at bar."

Besides, the plaintiff had, for three years after defendant had put out Liberty Bond bread, known of the use, and had given no warning of its intention of using "Bond" on its Rhode Island bread; on the contrary, its use of other names for ten years on its Rhode Island output would ground the inference that it had no intention of using "Bond" as a trade-mark in Rhode Island, even if, in 1915, it had used it in New York, and had registered it in 1916 for interstate trade. But its intention, disclosed or undisclosed, was entirely immaterial.

[4] Plaintiff's learned counsel contend that the federal registration of its trade