or some other possession, every one, by the familiar maxim, must so use his own as not to injure the possession or rights of another."

And in Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169, 16 Sup. Ct. 1002, 41 L. Ed. 118, which is cited in Stuart v. Stewart, supra, it is more fully stated as follows:

"This fact is fully recognized by the well-settled doctrine which holds that 'every one has the absolute right to use his own name honestly in his own business, even though he may thereby incidentally interfere with and injure the business of another having the same name. In such case the inconvenience or loss to which those having a common right are subjected is damnum absque injuria. But although he may thus use his name, he cannot resort to any artifice or do any act calculated to mislead the public as to the identity of the business firm or establishment, or of the article produced by them, and thus produce injury to the other beyond that which results from the similarity of names.' (Citing cases.) Where the name is one which has previously thereto come to indicate the source of manufacture of particular devices, the use of such name by another, unaccompanied with any precaution or indication, in itself amounts to an artifice calculated to produce the deception alluded to in the foregoing adjudications. Indeed, the enforcement of the right of the public to use a generic name, dedicated as the results of a monopoly, has always, where the facts required it, gone hand in hand with the necessary regulation to make it accord with the private property of others, and the requirements of public policy. The courts have always, in every such case, without exception, treated the one as the correlative or resultant of the other."

The defendant being a sole trader, there can be no pretense that any of the names which contain the combination of "Garcia," or "F. Garcia," with the word "Bros." or "Brothers," is truly descriptive of his business, or that it is his true name. The evidence shows beyond controversy the facts claimed by the complainants, that the names. "F. Garcia & Bros.," "Garcia Brothers," "F. Garcia Brothers," and the like, had become known throughout the United States as the complainants' trade and businesss name, and as applied certainly to them. and cigars of their manufacture; that, of these names, "F. Garcia & Bros." had been used and applied by the complainants as a brand name; and that it was so known in the trade as designating such particular brand of cigars of the complainants' manufacture. It is also very clear that the predecessors of the defendant and the defendant adopted and used one or more of these names after the complainants had adopted the one name as their firm and business name, and after all of such names had become known as designating, either generally the cigars of complainants' manufacture, or particularly a brand of cigars of their manufacture which was made and marketed under such particular name.

Under the principles of the cases above cited, there can be no doubt as to the necessary conclusion to be reached. The adoption by the defendant of the identical names which the complainants had adopted as their true trade-name, and which had come to designate their product, would alone entitle the complainants to relief. Such name or names had become the means of describing the goods manufactured by the complainants, both by those who dealt in them and those who consumed them; and, to use the language of Chickering v. Chickering & Sons, supra, "that name was to the public an assurance of

excellence in manufacture." The testimony here shows something more: From the fact that the defendant knew of complainants' name and its secondary use, his adoption of that name, or of the name "Garcia" coupled with "Bros." in respect to his own trade situation, in effect asserted a falsehood. His affixing complainants' name in almost the identical style and color of type on the "back strip" or panel of the cigar boxes, and his evasiveness or failure to explain his course in so using or adopting such names, all point clearly to a deliberate purpose or design to appropriate to himself what is undoubtedly a valuable possession and trade right of the complainants. It is impossible to reconcile the course pursued by the defendant with innocence of purpose, even if, under the law, it were possible for him to defend on that ground.

[2] The contention of the defendant that the name "Garcia Brothers" was used by his predecessors cannot avail in defending this suit. There is no showing of a superior right in his predecessors as against the complainants; in fact, the evidence quite clearly shows that the defendant's predecessors were in no better position than is the defendant. If they used such name at all, they began its use long after the complainants had manufactured cigars which had become known under the name of "Garcia Bros." as complainants' cigars. So, too, the defendant's claim that his annual product is so small as not to make him a competitor of the complainants cannot be urged as supporting a right to use complainants' valuable trade-names as a means, possibly, to extend his business. If complainants have the right to stop the use of such names, they can exercise it regardless of the extent of defendant's business.

The complainants are entitled to a decree in accordance with the prayer of their bill.

SMELLIE v. SOUTHERN PAC. CO.

(District Court, N. D. California, Second Division.

No. 15,450.

June 21, 1912.)

1. COURTS (§ 276*)-FEDERAL COURTS-JURISDICTION-OBJECTIONS-WAIVER. While the objection of want of jurisdiction of a controversy by a federal court cannot be waived, the right to have the action brought in a particular district may and will be waived unless timely objection is made; but, unless the acts of the parties are such as to evidence a waiver of the objection by both, no jurisdiction obtains, if the action is brought in the wrong district.

[Ed. Note. For other cases, see Courts, Cent. Dig. § 815; Dec. Dig. § 276.*

Waiver of right as to district in which suit may be brought, see notes to Memphis Sav, Bank v. Houchens, 52 C. C. A. 192; McPhee & McGinty Co. v. Union Pac. R. Co., 87 C. C. A. 634.]

2. REMOVAL OF CAUSES (§ 12*)—Federal Courts-ALIEN.

Since the provision of the Judiciary Act (Act March 3, 1887, c. 373, 24 Stat. 552 [U. S. Comp. St. 1901, p. 508]), requiring suits in federal courts to be brought in the district of which the defendant is an inhabitant, has no application to suits by an alien against a citizen, and such alien has For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 197 F.-41

no interest in having the venue laid in the district of the defendant's residence and his waiver is not necessary to give proper venue in a district other than that of the defendant's residence, an alien, having brought suit in a state court against a citizen who is a nonresident of the state and federal district, cannot object to defendant's removal of the cause to the federal court of that district on the ground that the controversy is between an alien and a citizen.

[Ed. Note.-For other cases, see Removal of Causes, Cent. Dig. §§ 32, 33; Dec. Dig. § 12.*]

At Law. Action by William Smellie against the Southern Pacific Company. On plaintiff's motion to remand the case to the state court. Denied.

Schlesinger & Shaw, of San Francisco, Cal., for plaintiff.

T. C. Coogan and Foshay Walker, of San Francisco, Cal., for defendant.

VAN FLEET, District Judge. This is a motion by the plaintiff to remand the cause, and the question presented is whether in an action commenced by an alien plaintiff in a state court against a citizen of the United States as defendant, who is a nonresident of the state and federal district in which the action is brought, the latter may by removal proceedings successfully invoke the jurisdiction of this court, solely on the ground that the controversy is one between an alien and a citizen of the United States, against the objection of the plaintiff duly interposed.

The same question has been frequently before the federal courts. As a result largely of divergent views as to the effect of the principles announced by the Supreme Court in the cases of Ex parte Wisner, 203 U. S. 449, 27 Sup. Ct. 150, 51 L. Ed. 264, and In re Moore, 209 U. S. 490, 28 Sup. Ct. 585, 52 L. Ed. 904, 14 Ann. Cas. 1164, the rulings of the late Circuit Courts having occasion to pass upon the question subsequent to those decisions were conflicting, several of them sustaining the jurisdiction (Barlow v. C. & N. W. Ry. Co., 164 Fed. 765; s. c., 172 Fed. 513; Decker v. Southern Ry. Co., 189 Fed. 224; Bagenas v. Southern Pacific Co., 180 Fed. 887), while others denied it (Mahopoulus v. C., R. I. & P. Co., 167 Fed. 165; Odhner v. Northern Pacific Co., 188 Fed. 507; Sagara v. C. I. & P. R. Ry. Co., 189 Fed. 220); whereas prior to the promulgation of the decisions in the Wisner and Moore Cases the rulings of the Circuit Courts had been very uniformly in favor of the right of removal in such cases. Such was the decision of Judge Ross in this circuit in Stalker v. Pullman Car Co., 81 Fed. 989.

The correct answer to the question depends, of course, upon the terms of the grant of jurisdiction to these courts by Congress, now found in the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1087 [U. S. Comp. St. Supp. 1911, p. 128]). That Code (section 24) gives the District Courts of the United States original jurisdiction of all suits of a civil nature, at common law or in equity, where, as here, the matter in controversy is sufficient in amount, and the suit "is between

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

citizens of different states, or is between citizens of a state and foreign states, citizens or subjects," and provides (section 28) that, when commenced in a state court, any such suit "of which the District Courts of the United States are given original jurisdiction by this. title * * * may be removed by the defendant or defendants therein to the District Court of the United States for the proper district." Section 51 then provides that, with certain exceptions not here involved, "no civil suit shall be brought in any District Court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant." These are the pertinent features of the Code bearing upon the subject.

In construing these provisions as they previously existed in the Judiciary Act and the acts amendatory thereof, and wherein the codification has made no change affecting present consideration, the Supreme Court, in Ex parte Wisner, supra, following in that respect its previous decisions, held that no suit which could not have been commenced originally in the Circuit Court could be removed thereto from the state court; and that as a consequence, by reason of the limiting effect of the proviso now found in section 51, in an action commenced in a state court by a citizen of another state against a defendant, nonresident of the state in which the action was brought, and who was a citizen of a state other than that of the plaintiff, the defendant could not by removal proceedings confer jurisdiction upon the Circuit Court of the United States, even though both plaintiff and defendant should acquiesce in such removal. The doctrine of that case was, however, modified in the subsequent case of In re Moore, supra, wherein it was held that, such a case being within the general grant of jurisdiction conferred upon those courts by the Judiciary Act, the further provision requiring the suit to be brought "only in the district of the residence of either the plaintiff or the defendant" was, under repeated rulings of that court, to be construed as a personal privilege for the benefit of the parties, which may be waived; the court saying:

"The contention is that as this action could not have been originally brought in the Circuit Court for the Eastern District of Missouri by reason of the last provision quoted from section 1 [Act March 3, 1875, c. 137, 18 Stat. 470 as amended by Act March 3, 1887, c. 373, corrected by Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U. S. Comp. St. 1901, p. 508)], it cannot under section 2 be removed to that court, as the authorized removal is only of those cases of which by the prior section original jurisdiction is given to the United States Circuit Courts. But this ignores the distinction between the general description of the jurisdiction of the United States courts and the clause naming the particular district in which an action must be brought."

And, quoting from Ex parte Schollenberger, 96 U. S. 369, 24 L. Ed. 853, it was said:

""The act of Congress prescribing the place where a person may be sued is not one affecting the general jurisdiction of the courts. It is rather in the nature of a personal exemption in favor of a defendant, and it is one which he may waive. If the citizenship of the parties is sufficient, a defendant may

consent to be sued anywhere he pleases, and certainly jurisdiction will not be ousted because he has consented."

And it was, in effect, held, after a full review of the authorities bearing on the subject, that, in a case of diversity of citizenship, the bringing of an action in the federal court of the wrong district by the plaintiff, and the appearance of the defendant therein and pleading to the merits, without interposing any objection to the jurisdiction, is to be regarded as a distinct waiver of this privilege on the part of both parties; so that the court, having general jurisdiction of the controversy, acquires by such waiver jurisdiction of the parties as well, and is thus clothed with full jurisdiction in the premises. And it was likewise held that the bringing of such an action in a state court of the wrong district, and its subsequent removal by the defendant to the federal court of such district, without timely objection thereto by the plaintiff, is equally to be regarded as a waiver by both parties of any objection to the jurisdiction of the latter court; the defendant evidencing such waiver by the proceedings for removal, and the plaintiff by going to the merits without objection, so that in such a case the federal court acquires complete jurisdiction.

[1] In other words, the effect of that case is that, while the objection of want of jurisdiction of the controversy cannot be waived, that of the right to have the action brought in a particular district may and will be considered waived under circumstances such as indicated; but that, unless the acts of the parties are such as to evidence a waiver of the objection by both, no jurisdiction obtains. See, also, the later cases of Western Loan, etc., Co. v. Butte Mining Co., 210 U. S. 368, 28 Sup. Ct. 720, 52 L. Ed. 1101; Kreigh v. Westinghouse, etc., Co., 214 U. S. 249, 29 Sup. Ct. 619, 53 L. Ed. 984.

[2] It was largely in the application of what was assumed to be the effect of the principles announced in these cases that the conclusion was reached by the Circuit Courts in the cases above referred to holding that in a case like the present the Circuit Court does not obtain jurisdiction against the consent of the alien plaintiff; that is, that an alien equally with a citizen of the United States has a right to interpose such objection.

But it is to be observed that in both the Moore and Wisner Cases, and the later ones above cited as well, the controversy was between citizens of different states of the United States, and not between an alien and a citizen of the United States. In the case of In re Hohorst, 150 U. S. 653, 14 Sup. Ct. 221, 37 L. Ed. 1211, the Supreme Court, construing these same provisions then found in the act of 1887, held that they had no application to cases involving controversies between citizens of the United States and aliens. Referring to the intention of Congress as manifested by the language employed therein, and after considering the prior clause conferring general jurisdiction in such cases, it is said:

"The question then arises how far the jurisdiction thus conferred over this last class of controversies, and especially over a suit by a citizen of a state against a foreign citizen or subject, is affected by the subsequent provisions of the same section, by which, after other regulations of the jurisdiction of