the Vick Medicine Company, of Albany, Ga., were the products of the Vick Chemical Company, of Greensboro, N. C. (The weight to be attached to such printed affidavits is discussed in Carroll v. Ertheiler [C. C.] 1 F. 688.) Surely in a number of cases dealers and customers have been deceived as to the source of the products sold by the Vick Medicine Company. Equally sure is such deception probable in each and every sale.

Briefly stated, the reason assigned for the use of Vick, rather than West, or some other name, in christening this new corporation, was to make full avail of the popularity of W. P. Vick, established as a seller of automobile tires. There is no suggestion as to why any one should credit a seller of tires with such pharmaceutical knowledge as to assure the effectiveness of any medicine bearing his name. There is no suggestion as to why his interest could not have been made known to his friends without using his name for the corporation and for the products. "Vick's Grippe Remedy" bears normally the interpretation that it is the product of Vick's brain and skill, not that Vick has bought it, or has an interest in a corporation which has bought it. Despite the vehemence of the protestations to the contrary, the conclusion of the court is that the moving cause for the adoption of Vick's name was to obtain the benefit of its widespread publicity, resulting from the money and effort of the Vick Chemical Company.

[8] Defendant claims the right to use his name, either as an individual or as a corporation, even though thereby some benefit may accrue from the publicity of such name, established by another, provided he use such words or devices as to make it manifest that his products are not the product of the prior user of the name, citing, among other authorities: Howe Scale Co. v. Wykoff, Seamans & Benedict, 198 U. S. 118, 25 S. Ct. 609, 49 L. Ed. 972; Donnell v. Herring-HallMarvin Safe Co., 208 U. S. 267, 28 S. Ct. 288, 52 L. Ed. 481; Thaddeus Davids Co. v. Davids Co., 233 U. S. 461, 34 S. Ct. 648, 58 L. Ed. 1016, Ann. Cas. 1915B, 322.

This is true; but, in measuring compliance with this requirement, the following from Florence Mfg. Co. v. J. C. Dowd Co., 178 F. 73, 75, 101 C. C. A. 565, 567, is pertinent: "It is so easy for the honest business man, who wishes to sell his goods upon their merits, to select from the entire material universe, which is before him, symbols, marks, and coverings which by no possibility can cause confusion between his goods and those of competitors, that the

courts look with suspicion upon one who, in dressing his goods for the market, approaches so near to his successful rival that the public may fail to distinguish between them." "Vick's" is so prominent in advertising and designating the products of the Vick Medicine Company, and the features that would to the critical observer serve to distinguish such products from those of the Vick Chemical Company are comparatively so nonevident, that the defendant has not complied with this requirement.

[9] Defendant insists that in no event is it guilty of the infringement charged, because its products are of wholly different descriptive properties from those dealt in by complainant. This dissimilarity might be true as to Vick's Kurl-No, but it is not as to the other products. But this is not the real issue. Such issue is well stated in the brief of counsel for complainant as follows: "If a sufficient relationship or analogy exists between the goods to which the marks are applied as to make it likely that an ordinary buyer at retail is likely to assume from the marks upon them that they have a common source, the defendant is guilty of infringement and unfair competition. It is confusion of origin, not confusion of goods, which controls." See International News Service v. Associated Press, 248 U. S. 215, at page 247, 39 S. Ct. 68, 75 (63 L. Ed. 211, 2 A. L. R. 293): "The ordinary case is a representation by device, appearance, or other indirection that the defendant's goods come from the plaintiff." Also Church & Dwight Co. v. Russ (C. C.) 99 F. 276-280; Anheuser-Busch v. Budweiser Malt Products Corporation (C. C. A.) 295 F. 306-309; Oppenheim, Oberndorf & Co. v. President Suspender Co., 55 App. D. C. 147, 3 F.(2d) 88, 89.

All of the products of the Vick Medicine Company are so labeled and advertised as to violate the above stated principle. Injunction is sought, not against the use by an individual of his name in a normal and freely ingenuous way, which inadvertently infringes upon the right of another, but against a corporation's adopting its name, in my opinion, for the purpose of appropriating a part of the good will of complainant and signally failing to do sufficient to disprove or prevent the effectiveness of such apparent purpose. In my opinion, the use of "Vick's" by defendant on its products in the manner now done is an unlawful invasion of complainant's rights, and should be enjoined; and it will be so ordered.

Under the view I now entertain as to the

v. Stoddard, 177 F. 611, 101 C. C. A. 237, 24 Am. Bankr. Rep. 403; Adams v. Deckers Valley Lumber Co., 202 F. 48, 120 C. C. A. 302; In re C. H. Kendrick & Co. (D. C.) 226 F. 978.

[2] Under the foregoing authorities, this makes but one contract; that is, a contract of the partnership. Does it make a contract of the individuals?

There is no question that the individual members of a partnership may become individually liable by contract independent of their respective liabilities by reason of being members of the partnership. They may, for instance, become indorsers, sureties or guarantors, or they may sign a note in which it would be affirmatively stated that "we and each of us promise to pay." In such cases there would be two contracts and each would be given effect by permitting the creditor of the partnership to participate in the partnership assets and the creditor of the individual to participate in the individual assets. As is well said by Judge Buffington in the case of Robinson v. Seaboard National Bank, 247 F. 667, 669, 159 C. C. A. 569, 571 (10 A. L. R. 842): "This is not a case of double proof on a single contract, but of single proof of two separate contracts. The referee and the court below enforced the two distinct contract obligations, embodied in the one note, by enforcing each contract." An earlier District Court case was to the contrary effect. In re Mosier, 112 F. 138.

The Circuit Court of Appeals of the Fifth Circuit, in Schall v. Camors, 250 F. 6, 162 C. C. A. 178, 10 A. L. R. 846, holds to the same effect. In that case the question was "as to whether a claim in its nature a tort, arising out of a partnership transaction, may be proven against the individual estates of the partners, when the claim has been filed and allowed as a claim in contract against the partnership estate." It was held that the alleged tort, if it established a provable claim at all, was one against the partnership and not against the individual members. The opinion clearly differentiates between the entities of the partnership and of the individuals, and, among others, are the following instructive statements: "In the administration of the present bankrupt law, therefore, the principle of the devotion of partnership assets to satisfy partnership debts, before the creditors of the individual members can resort to them for payment, and the reverse of this rule, should not lightly be departed from. If one, who is a creditor of the joint or partnership estate, is

permitted to prove his claim against both the partnership estate and the individual estate of one or more of the partners, the principle would be infringed if the partner or partners had individual creditors." Again: "We think the determination as to whether the claim is partnership, or individual, or both, should depend upon the real character of the transaction, and, if that be unmistakably an exclusively partnership one, neither fiction nor implication should be resorted to to give it a different character. If the partners had by separate contract of guaranty obligated themselves to the claimants, such separate contract would have afforded a basis for a claim against their individual estates. So, if it had been shown that their individual estates had been enriched by the transaction complained of, or that they had been guilty of a separate and personal delinquency from that of the partnership, an individual obligation to make restitution to the injured claimant might have been implied. In the absence of a separate, individual obligation, or a showing of benefit moving to the partner individually from the transaction, we can see no reason for sustaining a double proof of claim in favor of the implied obligation, when it would not be sustained where the obligation is an express one."

The judgment of the referee in affirmed.

UNITED STATES v. DEUTSCH. (District Court, D. New Jersey. January 30, 1925.)

Intoxicating liquors 246-Right to forfeiture of vehicle used in transportation stated.

A person arrested for unlawful transportation of liquor was using a leased automobile. No claim was made that there was any tax due on the liquor. Held, that Rev. St. § 3450 (Comp. St. § 6352), had no application, but the question of forfeiture of the car was governed by National Prohibition Act, tit. 2, § 26 (Comp. St. Ann. Supp. 1923, § 101382mm), and it being shown that the unlawful use was not known to the owner and was in violation of the terms of the lease that it was not subject to forfeiture.

Criminal prosecution by the United States against Morris Deutsch. On motion of the Auto Security Company, Inc., which gave bond for release of automobile for discharge of such bond. Granted.

Lum, Tamblyn & Colyer, of Newark, N. J., for movant.

"And it is further provided that in case said party of the second part shall fail to pay the rent as herein set forth or shall remove or attempt to remove the said leased property from the limits of Pennsylvania county without the consent of said party of the first part or shall fail to perform any of the covenants herein specified for him to perform, then in either case the party of the first part shall have the right to take immediate possession of said property wherever they may find the same, in which case and in any proceeding with or without the recourse of law to obtain possession of said leased property as aforesaid, said party of the second part waives and releases any and all claims and rights to bring any action or actions whatever against the party of the first part or their duly constituted agent or agents."

"The leased automobile shall not be used for any unlawful purpose or business and if so used or about to be used may be seized by the lessor without notice to the lessee."

The Auto Security Company, Inc., owner and lessor, which filed a bond in the sum of $2,870, and obtained the release of the car, now seeks a cancellation of the bond. This cancellation is opposed, the government contending that, by virtue of the provisions of section 3450 of the Revised Statutes (Comp. St. § 6352), the automobile must be forfeited. The owner replies that section 3450 does not apply to this situation, in view of certain provisions of the Volstead Act (Comp. St. Ann. Supp. 1923, § 101384 et seq.).

The district attorney argues that the case of Goldsmith v. United States, 254 U. S. 505, 41 S. Ct. 189, 65 L. Ed. 376, is "squarely in point with the case at bar." A reading of that case reveals that the court upheld the seizure of property under section 3450 in proper proceedings, but it did not consider whether that section conflicted with anything in the Volstead Act. The court therefore cannot agree that the case is "squarely in point." The "point" this court now has for determination was not even referred to. There are, however, some cases in which

courts have considered and passed upon the very question here involved.

The first is that of Reed v. Thurmond, 269 F. 252 (C. C. A. Fourth Circuit), the sylla bus of which is as follows:

"The Volstead Act, prohibiting the manu facture and sale of intoxicating liquors, was a radical departure from the policy of the former laws to derive revenue therefrom, and completely covers the same subject-matter, including the transportation of such liquors, so that it impliedly repealed Rev. St. § 3296 (Comp. St. § 6038), which imposed on the removal from a distillery of liquors on which the tax had not been paid a penalty more severe than was imposed by the Volstead Act on the illegal transportation of liquor."

Next we find the case of United States v. One Haynes Automobile, 274 F. 926 (C. C. A. Fifth Circuit), the syllabus of which is as follows:

"Since the enactment of the National Prohibition Act, a suit cannot be maintained under Rev. St. § 3450 (Comp. St. § 6352), for forfeiture of a vehicle as having been used to remove and conceal distilled spirits whereon a double tax has been imposed under said Prohibition Act, with intent to defraud the United States of such tax."

In this case Circuit Judge King concluded as follows:

"It is evident that the tax, which it is claimed has not been paid, is the double tax and penalty directed by section 35 of the Volstead Act. Any manufacture, sale, or transportation of liquor for nonbeverage purposes, to be legal, must be under a permit as provided by the Volstead Act. The transportation of the liquor is clearly one which, if illegal, would violate the Volstead Act, and would subject the vehicle to forfeiture according to the provision of that Act. It is not, therefore, to be assumed that Congress intended to provide for the forfei ture of vehicles under section 26 of the Volstead Act, with its provisions for preserving the rights of third persons, and still leave them subject to be forfeited under the more drastic provisions of Revised Statutes, § 3450."

The next is the case of Lewis v. United States, 280 F. 5 (C. C. A. Sixth Circuit), the syllabus being as follows:

"Rev. St. § 3450 (Comp. St. § 6352), providing for the forfeiture of any conveyance used in removing or concealing any goods in respect whereof any tax shall be imposed, with intent to defraud the United States, is

impliedly repealed, so far as vehicles used in transporting or concealing intoxicating liquor manufactured and intended for beverage purposes are concerned, by National Prohibition Act, § 26, providing for the condemnation of vehicles so used, and section 35 repealing inconsistent acts."

Circuit Judge Denison, after reviewing the two prior cases just referred to, said:

"In view of the consensus of opinion in all the Circuit Courts of Appeal which have passed upon the question, and in view of the inherent strength of the argument, we should be inclined to say that the underlying duty to pay the old tax did not so persist, after the Volstead Act became effective, as to furnish the necessary basis for an intent to defraud by not paying it."

In the Lewis Case a Buick automobile was seized by a deputy collector of internal revenue while it was being used for concealing and removing whisky upon which the internal revenue tax had not been paid.

The Lewis Case was followed by the case of One Ford Touring Car et al. v. United States, 284 F. 823 (C. C. A. Eighth Circuit). In this case the Ford touring car was seized by a deputy collector while being used by one Elam in the transportation of ten gallons of intoxicating liquor. The owner of the car (Shoemaker-Bale Auto Company) intervened and prayed for the relief provided in section 26 of the National Prohibition Act, but the district attorney urged the applicability of section 3450 of the Revised Statutes. The court, after reviewing the cases, held that the applicable statute was section 26 of title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 101382mm). In the instant case there is no suggestion by anybody that any tax is due and payable by virtue of revenue laws or otherwise.

Section 26 of the National Prohibition Act is as follows:

"Whenever intoxicating liquors transported or possessed illegally shall be seized by an officer he shall take possession of the vehicle and team or automobile, boat, air or water craft, or any other conveyance, and shall arrest any person in charge thereof. Such officer shall at once proceed against the person arrested under the provisions of this title in any court having competent jurisdiction; but the said vehicle or conveyance shall be returned to the owner upon execution by him of a good and valid bond, with sufficient sureties, in a sum double the valus of the property, which said bond shall be approved by said officer and shall be condi

tioned to return said property to 'the custody of said officer on the day of trial to abide the judgment of the court. The court upon conviction of the person so arrested shall order the liquor destroyed, and unless good cause to the contrary is shown by the owner, shall order a sale by public auction of the property seized."

This court will adopt the view of the four different upper courts which have considered the question and hold that section 26 applies to the instant situation.

The facts presented indicate that the third party, the Auto Security Company, Inc., had no knowledge of or participation in the unlawful transportation by Deutsch, who took the car outside of the limits of Pennsylvania county without consent and who also used it for an unlawful purpose or business, and thereby, in at least two respects, violated the terms of his lease. The owner having shown good cause, it follows that the automobile should not be sold at publie auction.

ed.

3,

The prayer of the petitioner will be grant

Internal Revenue 7-Dividends declared in 1916 and in January, 1917, held not subject to income tax at 1917 rates; "distribution." Under Revenue Act 1916, § 31, added Oct. 1917 (Comp. St. 1918, § 6336z), providing that any distribution to stockholders in 1917, or subsequent tax years shall be deemed to have been made from the most recently accumulated undivided profits or surplus, and shall constitute part of distributee's income for the year in which received, and shall be taxed to him at the rates prescribed for the years in which such profits or surplus were accumulated by the corporation, not only a dividend declared in Octo

ber, 1916, payable in February, 1917, but one declared January 24, 1917, payable in April and July, is not to be taxed at the 1917 rate; "distribution" being made when the dividend is declared; it being permissible to declare a dividend only from accumulated undivided profits or surplus in existence and susceptible of ascertainment and of being carried into a profit and loss statement at the time of declaration; and none having accumulated in this sense for the year 1917 before January 24.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Distribution.]