the full loss arising from the death, but in view of the decedent's age and limited earning capacity, I consider that the award should be reduced to $6,000.

3. Sallie T. Morris, as administratrix and widow of William Morris.

The deceased was a colored steward on the Saginaw, earning $35 per month and board worth $17 per month, making his earnings practically $52 per month. The claimant was allowed $4,500. It is not probable that the deceased would have been able to send his wife much of his earnings. In any event, she was able to and did earn her own living, partially at least. I think the allowance should be reduced to $3,000.

4. Mary Swanson, as administratrix of Peter Swanson.

The deceased was 42 years of age. He was a shoemaker by trade earning about $600 per year. On this occasion he was making a trip on the Saginaw as a passenger. He had a wife and son, the latter, about 12 years of age, dependent upon him for support. The claimant was allowed $4,250. Barring consideration of the decedent's expectation of life as shown by the mortality tables and adopted by the commissioner, the deceased was not in sound physical condition, having been injured while working on the Saginaw as a sailor. It does not appear that he worked at his trade very steadily and in view of his impaired physical condition, I think the commissioner's award is excessive. It should be reduced to $2,750.

5. Mary Anderson, as administratrix of Sarah Elam.

The deceased was a colored stewardess on the Saginaw. She was 53 years of age and earned $10 per month with board. The latter was worth to her about $17 per month. She left three children who were more or less dependent upon her for support. The claimant was allowed $2,500. In view of the age of the deceased and her small earning capacity, I think the award was excessive and should be reduced to $1,500.

6. Joseph Lawson, as administrator of Edmund Page.

The deceased was the first cook on the Saginaw earning $500 or $600 per year. His age was between 31 and 35 years. He left a mother and a brother and sister surviving him. He had been in the habit of sending his mother from $13 to $15 per month, but was irregular in doing so. She was between 60 and 70 years of age. An allowance of $4,250 was made. It seems that no one but his mother had any expectation of aid from him and in view of her advanced years and the small and irregular amounts that he contributed to her support, I think the award should be reduced to $3,000.

7. Luther Hawley, as widower of Mary Hawley.

The deceased was but 16 years of age. She was the wife of the claimant, a laborer earning from $7 to $13 per week. He very

quickly married again. He had a child by the deceased born about the 1st of April, 1903. An allowance of $3,500 was made. The widower's loss was not great and the award seems to be excessive. It should be reduced to $2,000.

8. Maurice G. Belknap, as administrator of Laura Hawley. The deceased was an infant about a month old but healthy and vigorous. The value of this life is exceedingly problematical. I think the award is excessive and it should be reduced to $400.

The death claims as allowed are as follows:

1. Primus Gilmore, as administrator of Alfred Gilmore, deceased,

$ 2,000.

2. Alvin L. Joseph, as executor of Edward S. Goslee, deceased,

$ 6,000.

3. Sallie T. Morris, as administratrix and widow of William Morris, deceased,

$ 3,000.

4. Mary Swanson, as administratrix of Peter Swanson, deceased,

$ 2,750.

5. Mary Anderson, as administratrix of Sarah Elam, deceased,

$ 1,500.

6. Joseph Lawson, as administrator of Edmund Page, deceased,

$ 3,000.

7. Luther Hawley, as widower of Mary Hawley, deceased,

$ 2,000.

8. Maurice G. Belknap, as administrator of Laura Hawley, deceased,

The exceptions are overruled save as here indicated and the report as modified will be confirmed.

400.

$20,650.

SIEGERT et al. v. GANDOLFI et al.

(Circuit Court, S. D. New York. August 4, 1905.)

1. TRADE-MARKS-RIGHT TO NAME "ANGOSTURA BITTERS."

Complainants, manufacturers of bitters at Port of Spain, Trinidad, under the firm name of "Dr. J. G. B. Siegert and Sons," held on the evidence not entitled to the exclusive use of the name "Angostura" as a trade-mark or trade-name in connection with their product, but the firm of C. W. Abbott & Co., of Baltimore, manufacturers of bitters sold by defendant, held entitled to use such name in the way it does use it, on evidence showing that such firm and its predecessors have continuously used it in connection with their product for more than 50 years.

2. UNFAIR COMPETITION-RIGHT TO PROTECTION IN EQUITY-FRAUDULENT REP

RESENTATIONS.

A manufacturer of bitters, which in its advertisements to the public sets out what purports to be certificates of chemists and medical experts stating that they have analyzed such bitters, that they contain no ingredients which are harmful or intoxicating, and recommending them for use by invalids, both adults and children, when in fact such bitters contain more than 40 per cent. of alcohol, is guilty of fraudulent misrepresentation, and is not entitled to invoke the aid of a court of equity to protect its product against alleged unfair competition.

[Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trade-Marks and Trade-Names, § 94.

Unfair competition in trade, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]

3. SAME EVIDENCE COnsidered.

Evidence considered, and held not to establish fraudulent conduct on the part of a manufacturer, or any acts constituting unfair competition in trade, which would entitle complainants to equitable relief.

Suit in equity to enforce the alleged rights of the complainants to the use of the word "Angostura" as a trade-name for the bitters of their manufacture, and to restrain alleged unlawful competition by defendants in putting up and selling bitters in such close imitation of complainants' goods, name, packages, labels, etc., that persons desiring to purchase complainants' goods, bitters, are deceived into purchasing bitters made by one Cornelius W. Abbott. It is not extravagant to say that substantially all the defenses known. to the law are pleaded.

Arthur Furber (William M. Copeland, of counsel), for complain

ants.

John Brooks Leavitt, for defendants.

RAY, District Judge. It appears from the evidence that at some time prior to 1830, or about that time, one Johannes G. B. Siegert, a German, and probably a physician and surgeon, settled at Angostura, Venezuela, South America. Here he commenced the manufacture of certain bitters. After a time-it is impossible to fix any definite date-these bitters were sent out of the country, Venezuela, and were called and labeled "Aromatic. Bitters," a purely descriptive name. As these bitters were made at, and sent out wherever there was a market for them, from Angostura, they

undoubtedly came to be known as "Angostura Bitters." In 1875 the factory for manufacturing these bitters was removed from Angostura, then Ciudad Bolivar, to Port of Spain, Trinidad. J. G. B. Siegert was now dead, and the business was carried on by Carlos D. and Alfredo C., two sons, who took in a third in 1876. About this time one Meinhard registered in England the name. "Angostura Bitters" for bitters made by him, whereupon complainants changed their label so that the headings of the panels of the descriptive matter wrapped about the bitters which had read “Aromatic Bitters, prepared by Dr. Siegert at Angostura" (now Ciudad Bolivar), were made to read "Aromatic Bitters or Angostura Bitters, prepared by Dr. Siegert at Angostura, now in Port of Spain, Trinidad." Between 1881 and 1886, in consequence of a decision of the courts of Maryland that this label misrepresented as to the person by whom the bitters were prepared, the label was changed to read "Aromatic Bitters or Angostura Bitters formerly prepared at Angostura by Dr. Siegert, and now in Port of Spain, Trinidad, by his sons and successors, under the old firm or name of Dr. J. G. B. Siegert & Hijos." It is clear from the evidence that neither Siegert nor his sons ever selected and applied the name "Angostura" to these bitters as their name or designation. The original Siegert and the sons. named and sold them as "Aromatic Bitters," a purely descriptive name, until others, and more than one, had commenced to manufacture similar bitters, and name and sell them as "Angostura Bitters." Others were making and selling Angostura Bitters as early as in the 60's, and there is credible evidence that this was done many years earlier. It will be noted that as late as in the 80's these complainants were clinging to the original name of these bitters, "Aromatic Bitters." True, they say "Aromatic or Angostura," but this adding of "or Angostura" was after competitors had come into the field with bitters which such competitors called "Angostura Bitters." True, these bitters from Angostura, Venezuela, South America, had come, with those who took pains to note the place of manufacture, to be called Angostura Bitters, the same as we distinguish the Ohio buggies or wagons from the New York or New England vehicles. It was not until 1871 that the Siegerts registered a trade-mark in the United States. The first was "J. G. B. Siegert's Angostura Bitters." This recognized that there were other "Angostura Bitters" on the market, as in fact there were and had been for years. In 1873 the registration "Angostura Bitters" was made as a trademark. Those registrations were made in the interest of complainants. But they gave notice of a claim. They did not change any existing fact. The evidence shows some effort by the complainants to enjoin the use of the name "Angostura Bitters," etc., by others; but in one case, at least, the action failed for the reason that complainants were not in a court of equity with clean hands. It is not satisfactorily shown that the Siegert bitters were the only ones. made in Angostura, or that region, even, that came to be called by the public Angostura Bitters. This court cannot find from the

evidence that complainants ever became entitled to the name "Angostura Bitters" as their trade-mark or trade-name. Until in the 80's, as said, they did not give their goods that name, except to show that they were the same as "Angostura Bitters.' Prior to that the name was "Aromatic Bitters," the alternative name "Angostura Bitters." Why this alternative name? Evidently to show to the public they were the same as the bitters on the market known as "Angostura Bitters." But the claim was not made that this was the name. There is an aromatic bark coming from Venezuela known as "Angostura bark." There was a city on the Orinoco river called Angostura. Angostura is a common name in the Spanish language. One meaning is "narrow" or "contracted." At the point where the city of Angostura was and is situated the river narrows. These narrows were known as "The Angostura." While there are many places, towns, or cities in old Spain and Spanish territory named "Angostura," I have no doubt the city of Angostura on the Orinoco river was given that name because of these narrows. After all, the first settlers there may have been from Angostura, in old Spain, and may have named the place from their home town. Boatmen approaching them say, "We are coming to the angostura," meaning the narrows of the river, not the city.

There was much contention on the argument, and there is not a little in the evidence, as to how the former city of Angostura, South America, has been called of late years. In "Cram's New Unrivaled Atlas of the World," published in 1902, the map of Colombia, Ecuador, Venezuela, and British, Dutch, and French Guiana (all) one map) gives "Angostura" as the name of the city. It is so shown on the map proper. The name "Ciudad Bolivar" is not on the map. In the margin, among the names of the principal cities, we find both, however. This is a sample, and shows on what frail foundation we stand, when, as in one of the decisions, we attempt to decide this controversy in favor of complainants on the ground no such place as "Angostura" in Venezuela has existed for half a century. In the "New National Encyclopedia," published in 1896, we find: "Angostura, or Ciudad Bolivar, a seaport town of Venezuela, on the Orinoco river about 240 miles from its mouth. It is built at a point or pass (angostura) where on both sides the river is narrowed," etc. In Chambers' Encyclopedia, published in 1870, we find: "Angostura, a seaport town of Venezuela, the right bank of the Orinoco," etc. There is no mention of Ciudad Bolivar. By law the name of the city was changed in 1846 to Ciudad Bolivar. But while statutes may change the name of a place for certain legal purposes, it cannot change the popular name or name by which in many instances people will know and speak of it.

* **

on

Complainants' bitters are an aromatic bitters, compounded from vegetable substances dissolved in alcohol, which preserves their therapeutic properties. This is the contention of complainants. These bitters contain about 40 per cent. of alcohol. In extensively