fees are recoverable by virtue of section 3e of the Bankruptcy Act (U. S. C. title 11, § 21 (e); 11 USCA § 21(e). That section is as follows:

For these reasons, the motion of the Farmers' & Merchants' Bank of Williston, S. C., for summary judgment against the petitioning creditors and their surety, must be denied, and a proper order to that effect will be entered accordingly.

with at least two good and sufficient sureties who shall reside within the jurisdiction of said court, to be approved by the court or a judge thereof, in such sum as the court shall direct, conditioned for the payment, in case such petition is dismissed, to the respondent, his or her personal representatives, all costs, expenses, and damages occasioned by such seizure, taking, and detention of the property of the alleged bankrupt.

"If such petition be dismissed by the court or withdrawn by the petitioner, the respondent or respondents shall be allowed all costs, counsel fees, expenses, and damages occasioned by such seizure, taking, or detention of such property. Counsel fees, costs, expenses, and damages shall be fixed and allowed by the court, and paid by the obligors in such bond."

It would seem that this provision is intended for the benefit of the bankrupt and not for that of a third person claiming the right to hold the property of the bankrupt. But assuming (without deciding) that in a proper case a third person, as the Farmers' & Merchants' Bank here, claiming a right of the possession of property of the bankrupt, is entitled to the benefit of this section, nevertheless it cannot avail the bank in this case. The bond required in that section is conditioned for damages occasioned by "seizure, taking, and detention of the property of the alleged bankrupt." In the present case there was no seizure, taking, or detention of the property. The issuance of the restraining order is not a detention within the meaning of that section. All of the decisions that I have been able to find hold that under this section neither costs nor counsel fees are allowable, where property has not been seized or taken out of the possession of the bankrupt in accordance with the provisions thereof. In re Ghiglione (D. C.) 93 F. 186, 1 A. B. R. 580; In re Morris (D. C.) 115 F. 591, 7 A. B. R. 709; In re Williams (D. C.) 120 F. 34, 9 A. B. R. 736; In re Hines (D. C.) 144 F. 147, 16 A. B. R. 538; In re Shon (D. C.) 212 F. 797; In re National Carbon Co. (C. C. A. 6th) 241 F. 333.

UNITED STATES v. PLEASON et al.

Courts

May 11, 1928.

337-Proceedings for holding accused to answer before federal court and sufficiency of bail bond are determinable by state law (18 USCA § 591).

Under 18 USCA § 591, all proceedings for holding an accused to answer to a criminal charge before a federal court are ruled by laws of state in which proceedings take place, unsufficiency of bail bond taken in such proceedless otherwise provided by federal statute, and ings is determinable by state law.

2. Bail

75-Recognizance held to require

accused to appear on date specified and continually thereafter until case disposed of, and appearance after date specified was insufficient (18 USCA § 591; 28 USCA § 169; Gen. St. Minn. 1923, §§ 10579-10584, 10588, 1059310595).

Under 18 USCA § 591, 28 USCA § 169, and Gen. St. Minn. 1923, §§ 10579-10581, 10588, 10593-10595, relating to bail, a recognizance taken by United States commissioner, requiring federal court on certain date, and from day to accused to appear to answer indictment before day thereafter during said term, and from term to term and from time to time until finally discharged, required accused to appear on date specified and continually thereafter during term until case was disposed of, as against contention then being held, and each subsequent term that his appearance when brought into court under bench warrant on date subsequent to that stated, but during same term, satisfied requirement of bond.

on the 4th day of May, 1927, gave a certain recognizance, acknowledging themselves indebted to the United States of America in the sum of $5,000, conditioned that the defendant David J. Pleason should personally appear before the District Court of the United States for the District of Minnesota on the 7th day of May, 1927, a special term or rule day, and from time to time thereafter, to answer the charge exhibited against him, and to abide the judgment of the court, and not depart the court without leave; that on the 2d day of November, 1927, at the general term of said court held in St. Paul, Minn., Pleason failed to appear, and his bond was duly forfeited; and that the defendants have failed and refused to pay the amount in which they recognized. A copy of the bond is attached to the complaint.

The defendants, in their answer, deny that they failed to comply with the terms and conditions of the recognizance, or that they are in default, and allege that Pleason appeared on the 16th day of November, 1927, during the November term of the court, pleaded guilty, and was sentenced.

There is no dispute as to what occurred. Pleason was charged with having had in his possession an unregistered still, in violation of section 3258, Revised Statutes of the United States (26 USCA § 281; Comp. St. § 5994). He was arrested, brought before the commissioner, who found probable cause, and was released from custody upon his giving the bond in question, which contains the following language:

"The condition of the above obligation is such that, if the said David J. Pleason shall personally be and appear before the United States District Court for the District of Minnesota, Third Division, at the April term thereof, in the United States court room, in the city of St. Paul, in said district and division, on the 7th day of May, A. D. 1927, at 10 o'clock a. m. of that day, and from day to day thereafter during said term, and from term to term and from time to time, until finally discharged therefrom, to answer an indictment filed therein on the 16th day of November, 1926, charging that on or about the 13th day of August, 1926, within said district, the said David J. Pleason, in violation of section 3258, Revised Statutes of the United States, did unlawfully have in his possession an unregistered still, and shall not depart said court without leave, and shall abide by and obey all orders made by said court, and shall surrender himself in execution of the judgment and sentence of said court in the premises, at the time of such sentence, or

at the expiration of any stay of the execution thereof which may be granted by the court, then this obligation to be void; otherwise, to remain in full force, virtue, and effect."

Pleason was arraigned at special term on the 7th day of May, 1927, and entered a plea of not guilty. He was not tried at that term of court, the jury having been discharged in April, but his case was called for trial on the 2d day of November, 1927, the opening day of the next term. He did not appear, his bond was forfeited, and a bench warrant issued. On the 16th day of November, 1927, he was brought into court, changed his plea of not guilty to guilty, and was sentenced. At the same time a motion was made to reinstate the bond; but the court found that Pleason's failure to appear upon the first day of the term was willful, and denied the motion. Thereafter this suit was brought.

It is the contention of the defendants that the appearance of Pleason, under the circumstances, on the 16th day of November, 1927, was a sufficient compliance with the terms of the bond, and that the bond did not require his appearance on the first day of the November term, and that his appearance at any time during the term was all that was required.

[1] Section 591, title 18, U. S. Code (44 Stat. pt. 1, p. 506), provides:

be

"For any crime or offense against the United States, the offender may, by any United States commissioner, and agreeably to the usual mode of process against offenders in such state, arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offense."

Under this section, all proceedings for holding an accused person to answer to a criminal charge before a court of the United States are ruled by the laws of the state in which the proceedings take place, unless otherwise provided by federal statute, and the sufficiency of a bail bond taken in such proceedings is to be determined by the law of the state. United States v. Mace (C. C. A.) 281 F. 635, 637; United States v. Patterson, 150 U. S. 65, 67, 14 S. Ct. 20, 37 L. Ed. 999; United States v. Zarafonitis (C. C. A.) 150 F. 97, 10 Ann. Cas. 290.

[2] The question, then, is whether, under the law of this state, such a bond as this would require the appearance of David J. Pleason at the term of court in question and at the time his case was called. The sections of the Minnesota statutes relating to bail are 10579,

10580, 10581, 10582, 10583, 10584, 10588, 10593, 10594 and 10595, Statutes of Minnesota of 1923.

The terms and conditions of such recognizances are not specified in the statute. Section 10579 provides that the recognizance shall require the accused to appear at the

The motion to strike the answer is granted, and it is ordered that judgment be entered in favor of the plaintiff, as prayed.

In re BARRON.

1928.

1. Aliens ~68 (5)-Court, on hearing of application for admission to citizenship, is not bound by recital of facts in certificate of arrival.

It seems to me that the case of State v. Cooper, 147 Minn. 272, 180 N. W. 99, disposes of the question presented by this motion. There a recognizance very similar to this one was under consideration. The court said of it:

"The bond is not for an appearance on a particular day. It is a continuing bond pending trial. It requires Cooper to appear for such trial whenever the court shall order such appearance and whenever the cause should be called for trial. Not only that, continuously from day to day and term to term, he is to appear and answer the indictment. And, lastly, at all times, until final decree, sentence, or order, he is to obey and abide all orders of the court and not depart without leave, or until discharged by the court. By the giving of the bond the custody of Cooper was transferred from the sheriff to defendant [surety], and it became bound to produce him whenever the court lawfully required his presence for trial."

Section 169, title 28, U. S. C. (as amended April 10, 1926), 44 Stat. pt. 1, p. 2027 (28 USCA § 169), provides that a term of this court for the Third division shall be held on the first Tuesday in April and the first Tuesday in November in each year. A reasonable construction of this recognizance is that it required the defendant Pleason to appear on the 7th day of May, 1927, and continually thereafter during the term then being held, and during each subsequent term until his case was disposed of. The defendant's construction is not reasonable, and not in accordance with the terms of the recognizance. It would, in effect, permit the defendant to escape trial, because he could, without being in default, report at a time during each term when there was no jury present to try him.

Court, on hearing of application for admission to citizenship, is rot bound by recital of facts contained in certificate of arrival, although with all other facts and circumstances, to defacts shown therein are to be considered along termine actual intention and legal residence.

2. Aliens 68 (5)-That applicant for citizenship was fitting himself to practice law is evidence of intention to reside in United States at future time.

Fact that applicant for admission to citizenship was fitting himself to practice law in United States constituted evidence of intention to re

side in United States at some future time. 3. Aliens 62 (3)-Applicant, maintaining actual residence in Canada, held not entitled to citizenship, though spending most of time in United States, with future intention to reside therein.

Applicant for citizenship, having maintained actual residence in Canada, for preceding five years, though spending greater part of his time within United States, with future intention of making United States his home, held not entitled to citizenship.

4. Aliens 62(3)—Residence of applicant for citizenship depends largely on intention, gathered from acts of petitioner, rather than declarations.

Residence, as bearing on right of applicant intention, which intention is to be gathered to admission to citizenship, depends largely on from acts of petitioner, rather than his dec

larations.

5. Aliens 62 (3)-Term "resided in United States" is used in naturalization statute In sense of having domicile.

United States" is used in the sense of having In naturalization statute, term "resided in

a domicile in United States.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Reside.] 6. Aliens 62 (3)-Intent to make home, within meaning of naturalization statute, must be intent to make home at the moment.

Intent to make a home in United States, within meaning of naturalization statute, must be an intent to make a home at the moment,

and not to make a home in the future.

7. Domicile 4(1)-Domicile of person having capacity to acquire domicile of choice is in earlier home, unless second home is principal home.

When a person who has capacity to acquire domicile of choice has more than one home, his

domicile is in the earlier home, unless he regards second home as principal home.

Naturalization Proceedings. In the matter of the petition of Orion P. Barron for admission to citizenship of the United States. Petition denied without prejudice to his right to thereafter file a valid petition.

Martin J. Kilsdonk, of Detroit, Mich., for petitioner.

O. T. Moore, District Director of Naturalization, and James L. Pangle, Asst. District Director of Naturalization, both of Detroit, Mich., opposed.

TUTTLE, District Judge. [1] The peti

tioner is a citizen of Great Britain. He was

born and formerly resided in Amherstburg, province of Ontario, Canada. Amherstburg is a small city on the Canadian side of the Detroit river, a few miles down the river from the city of Detroit. His certificate of arrival states that he entered the United States for permanent legal residence on September 5, 1917. From the time of his birth, June 30, 1901, down to the present time, his parents have resided in Amherstburg. I find the facts to be that when he entered the United States, on September 5, 1917, he intended at some future time to acquire a legal residence in the United States, but that he did not then have the present intention to establish and acquire a permanent, continuous residence in this country from that date. His act in entering the United States at that time was a preparatory step taken by him in anticipation of what he hoped and expected to do in the future rather than representative of what he was actually doing at that time. The court is not bound by the recital of facts contained in the certificate of arrival. The facts shown on the certificate of arrival are to be taken into consideration, along with all the other facts and circumstances, in determining his actual intention and legal residence.

When he came to the United States in 1917, he secured work in Detroit with a local railroad. He roomed and boarded in Detroit. It was not practical for him to return to his home in Amherstburg for his meals and lodging each day. He did, however, frequently and regularly return to his home in Amherstburg for week ends, vacations, and holidays. He was not only employed in Detroit, but he attended a law school in Detroit, from which he was graduated, and later passed the Michigan law examinations for admission to the bar.

[2, 3] The fact that he was fitting himself to practice law in the United States is evidence of his intention to reside in the United States

at some future time, but, taken with all the other facts and circumstances, does not show a present intention to reside here at that particular present time. Almost all law students room and board at the place where they are attending school, but that alone furnishes little or no evidence of their present intention to make that particular place their residence.

During the early years that he was working and going to school in Detroit, he was keeping company with a young lady who was home in Amherstburg. In 1920, he married a citizen of Canada, and who resided near his this young woman in Canada. Strong evidence of his intent as to his actual home at that time is shown by the fact that immediately upon his marriage he took his wife to the home of his parents in Amherstburg, and she continued to reside there until August 6, 1925. A child was born to them, and the child, like the mother, continued to reside at the home in Amherstburg. It seems plain that, while there was a fixed purpose in the petitioner's mind to make Michigan and the United States his home in the near future, his present intention, up to August 6, 1925, was to keep his actual home for the time be ing in Canada with his parents, wife, and

child.

[4] While residence in this case depends largely on intention, the intention is to be gathered from the acts of the petitioner rather than from his declarations. The testimony of the petitioner, however, like the acts of the petitioner, actually indicates an intention to reside in the United States at a future date rather than at any particular time prior to August 6, 1925. The petitioner ate and slept in Detroit in order that he might work, earn money and acquire an education, intending at a future date to have a permanent home in Detroit. In the meantime he continued to have his actual present home in Amherstburg with his parents, where his wife and child lived, and where he spent just as much of his time as possible, consistent with his labors and studies. His actual home up until August 6, 1925, was in Amherstburg, Canada. On that date, he came to Detroit, Mich., with his wife and child. From that date his home and his actual residence have been permanently in the United States. Long previous thereto, and undoubtedly since September 5, 1917, he had intended that at some time he would make the United States his permanent residence. Not until August 6, 1925, was that hope and future intention realized, and not until August 6, 1925, did that residence in the United States become a reality.

This petition must be denied, not because of the brief and frequent periods during which the petitioner was physically absent from this country, but because during all of his life up until August 6, 1925, he had his actual residence in Amherstburg, Canada, in spite of the fact that his labors and studies kept him for the greater portion of his time after September 5, 1917, in the United States.

One "resides" where he has his residence. The term "residence" is not always used in the sense of domicile, and its meaning in a legal phrase must be determined in each case. American Law Institute Restatement, Conflict of Laws (Fourth Draft) § 12. [5] In the naturalization statute the term "resided in the United States" is used in the sense of having a domicile in the United States.

[6] The intention to make a home must be an intent to make a home at the moment, and not to make a home in the future. American Law Institute Restatement, Conflict of Laws (Fourth Draft) § 22.

[7] When a person who has capacity to acquire a domicile of choice has more than one home, his domicile is in the earlier home, unless he regards the second home as his principal home. American Law Institute Restatement, Conflict of Laws (Fourth Draft) § 26.

It is plain that petitioner, prior to August 6, 1925, regarded his old home where his wife and child resided as his principal home, rather than the lonely room in Detroit where he slept while working and going to school.

The petitioner is well qualified to become a citizen of this country. It is unfortunate that he cannot now be admitted. He "has not for the continued term of five years • resided within the United States." He has resided here only since August 6, 1925. His petition will be denied, without prejudice to his right to file a valid petition on or after August 6, 1930. An order will be entered in accordance with this opinion.

AMERICAN SAFETY RAZOR CORPORATION v. INTERNATIONAL SAFETY RAZOR CORPORATION et al.

District Court, D. New Jersey. April 23, 1928. 1. Trade-marks and trade-names and unfair competition 67-Concern is entitled to benefit of its legitimately acquired tradenames in vending products.

A business concern is entitled to the benefit of its legitimately acquired trade-names in vending its products.

2. Trade-marks and trade-names and unfair competition 70(2, 3)—Deceptive appropriation or use by one concern of another's trade-names or marks is prohibited.

The public is not to be misled in its purchases through any deceptive or adroit appropriation or use by one concern of another's trade-names or marks in furthering the sales of its own products.

3. Trade-marks and trade-names and unfair competition 68(3)—Manufacturer may advertise fact that repair or renewal parts made by him will fit general commodity, which is product of various manufacturers, made up of several parts.

Where a general commodity, which is product of various manufacturers, is made up of several parts, one or more of which must of necessity be renewed or repaired from time to time, and there is a standarization as to size existent among various manufacturers, it is lawful for one manufacturer to call attention to fact that repair or renewal parts as made by him will fit into commodity which is manufactured by another.

4. Trade-marks and trade-names and unfair competition 68 (2)-Manufacturer, setting forth truth, is not liable for results of purchaser's failure to exercise ordinary care, as respects unfair competition.

As respects unfair competition, public is expected to pay ordinary attention to the facts in the matter of its purchases, and, if such ordinary attention apprises purchaser of truth, manufacturer, setting forth truth, is not responsible for results of purchaser's failure to

exercise ordinary care.

5. Trade-marks and trade-names and unfair competition 70(3)-Statement on razor blade cartons that blades will fit Gem, Ever. Ready, and other razors held not calculated to induce belief that blades are Gem or EverReady blades.

Cartons containing razor blades, stating that blades "will fit Sha-ve-zee, Gem, Liberty, Ever-Ready & other razors," held not calculated to deceive or mislead a purchaser into believing that carton contains either Gem, EverReady, or Star razor blades.

6. Trade-marks and trade-names and unfair

competition 85(1)—Complainant, seeking to enjoin alleged trade-mark infringement and unfair competition, held not entitled to relief, in view of its deceptive advertising methods.

Complainant, seeking to enjoin alleged infringement of trade-marks "Gem," "EverReady," and "Star" safety razors and blades, and alleged unfair competition, held not entitled to seek relief in court of equity, in view of fact that, notwithstanding complainant manufactures all three blades, using identical material, it advertises and sells them at different prices, and as though the different articles were made in competition with each other, thus showing lack of good faith toward public.

In Equity. Suit for permanent injunction by the American Safety Razor Corporation against the International Safety Razor Corporation and another. Complaint dismissed.