UNITED STATES ex rel. CHIN THYN v. application for the writ of habeas corpus, LOISEL, U. S. Marshal. * Circuit Court of Appeals, Fifth Circuit. April 4, 1928. No. 5073. Aliens 32(13)-Order deporting Chinese alien held not superseded by appeal not timely taken. Order of deportation of Chinese alien is not superseded by appeal not taken in time to give the court jurisdiction. Appeal from the District Court of the United States for the Eastern District of Louisiana; Louis H. Burns, Judge. Habeas Corpus. Petition by the United States on relation of Chin Thyn against Victor Loisel, United States Marshal. Decree denying the writ, and petitioner appeals. Affirmed. Hugh S. Suthon, of New Orleans, La., for appellant. Wayne G. Borah, U. S. Atty., and Edmond E. Talbot, Asst. U. S. Atty., both of New Orleans, La., for appellee. Before WALKER, BRYAN, and FOSTER, Circuit Judges. FOSTER, Circuit Judge. Appellant, a Chinese person, was ordered deported by a United States commissioner on September 1, 1916. On October 2, 1916, he took an appeal to the District Court, and was enlarged on bond. A motion was filed on behalf of the United States, to dismiss the appeal for want of jurisdiction, on the ground that it was not taken in time. For some reason not dis closed, the matter rested until May 27, 1922, without action of any kind, and on that day a rule issued ordering appellant to show cause why the appeal should not be dismissed. Service of the rule was made on appellant's attorney of record, and he answered setting up that appellant was out of the jurisdiction of the court, that he did not know his whereabouts, and that he had no objection to the dismissal of the appeal. On June 17, 1922, the appeal was dismissed by the District Court. Nothing further was done until August 9, 1926, when appellee took appellant into custody under the warrant of deportation, and confined him in the House of Detention in New Orleans. Appellant then sued out a writ of habeas corpus on the ground that the warrant of deportation issued by the commissioner became null and void, and was vacated by the appeal, and that no order of deportation had been issued by the District Court. From an adverse decision on the *Rehearing denied May 25, 1928. this appeal is prosecuted. It is useless to discuss the questions raised and argued on behalf of appellant. It is sufficient to say that the appeal from the order of the commissioner was not taken in time. Appellant had ten days in which to appeal from the order of the commissioner (title 8, § 282, USCA), and did not do so. The District Court was without jurisdiction to entertain the appeal, and the dismissal left the order of the commissioner in full force and effect. Affirmed. MARTINEZ v. UNITED STATES. Circuit Court of Appeals, Fifth Circuit. March 31, 1928. No. 5253. Poisons-Government, having proved sale of morphine, was not required to prove sale was without written order to sustain conviction for unlawful sale (Opium Act 1914, § 2 [26 USCA § 696]). In prosecution under Opium Act 1914, § 2 (26 USCA § 696; Comp. St. § 6287h), which prohibits sales of derivatives of opium "except in pursuance of written order," government having proved sale of morphine was not required to prove negative averment that sale was not made in pursuance of written order; it being presumed that sale was unlawful inas much as existence of written order was fact peculiarly within defendant's knowledge. In Error to the District Court of the United States for the Eastern District of Louisiana; Louis H. Burns, Judge. Toney Martinez was convicted of a con spiracy to sell and of selling morphine, and he brings error. Affirmed. William A. Green, of New Orleans, La., for appellant. Wayne G. Borah, U. S. Atty., and P. M. Flanagan, Asst. U. S. Atty., both of New Orleans, La. Before WALKER, BRYAN, and FOSTER, Circuit Judges. BRYAN, Circuit Judge. Martinez is one of several defendants who were convicted of a conspiracy to sell and of selling morphine, in violation of section 2 of the Opium Act of 1914 (26 USCA § 696; Comp. St. § 6287h) which prohibits sales of derivatives of opium "except in pursuance of a written order" of the purchaser "on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue." 38 Staf. 786. 25 F.(2d) 303 He seeks reversal on the sole ground that others. Decree for plaintiff against defend the government failed to prove the negative averment that the sales were not made in pursuance of the written orders required by the statute. Clearly, the conspiracy charge did not depend upon such proof, as an unlawful agreement could exist even though no sales were made. But, as the sentence was greater than could have been imposed upon conviction for conspiracy, it becomes necessary to consider the substantive offense al leged. The presumption arose that the sale was unlawful upon proof that it had been made, because the government was not bound to prove a negative when the fact as to whether there was a written order was one peculiarly within the knowledge of defendant. Bishop on Statutory Crimes, §§ 1051, 1052; Taylor v. United States (C. C. A.) 19 F.(2d) 813. The judgment is affirmed. ant Abraham Y. Ameer. Cromwell Greist & Warden, of Chicago, Ill., for plaintiff. Bartel & McCormick, of Chicago, Ill., for defendants. LINDLEY, District Judge. Plaintiff, a nonprofit, co-operative agricultural association, organized under the laws of the state of California, brought this suit against defendants to enjoin them from threatening plaintiff and its customers with suit for infringement by reason of the manufacture and sale of plaintiff's raisin syrup. Defendants Avis, Ameer, Younan, and Baboo are owners of patent 1,381,613, granted June 14, 1921, for grape syrup. Service was procured upon only one of them, Ameer; the others being nonresidents of this district. There is no evidence against defendant, Bartel, and the suit is dismissed as to him for want of equity, at the costs of plaintiff. On March 31, 1926, defendant Ameer and SUN-MAID RAISIN GROWERS OF CALI- his co-owners of the patent served a formal FORNIA v. AVIS et al. notice of infringement upon plaintiff and the District Court, N. D. Illinois, E. D. April 12, Sun-Maid Raisin Growers' Association. 1928. No. 7411. 1. Trade-marks and trade-names and unfair competition 97-Defendants failing to bring patent infringement suit, though plain tiff suggested it, will be enjoined from threatening plaintiff and customers with such suit. Raisin growers association held entitled to injunction against owners of patent for grape syrup to enjoin them from threatening plaintiff and its customers with suit for infringement, where plaintiff had suggested that defendant institute suit to determine whether there was infringement, but no suit was brought. 2. Courts 343-Nonresident defendants held not indispensable parties, and court not without jurisdiction of suit to enjoin threatening patent infringement suit, notwithstanding failure to serve such defendants. In suit to enjoin defendant from threatening plaintiff with patent infringement suit court is not without jurisdiction because those defendants who were nonresident co-owners of patent were not served with process, since such nonresident defendants are not indispensable parties. 3. Courts 328(3)-In suit to restrain de fendants from threatening infringement suits, jurisdictional amount is tested by value of object to be gained. In suit to restrain defendants from threatening patent infringement suit, jurisdictional amount is to be tested by value of object to be gained by complainant. In Equity. Suit by the Sun-Maid Raisin Growers of California against Sam Avis and Plaintiff denied the infringement, and suggested to defendants that, in order to determine whether there was infringement, the latter institute suit. On January 17, 1927, the patentees, having demanded $500,000 for a sale of the Avis patent, and having received an offer of only $10,000, sent to each member of the advisory council of plaintiff a letter, notifying them personally, and as representatives of the plaintiff and of the SunMaid Raisin Growers' Association, a Delaware corporation, and its subsidiaries, and as representatives of the individual members of the Sun-Maid Raisin Growers of California, that suit would be begun for infringement unless the manufacture and sale of grape syrup ceased. On August 15, 1927, patentees sent to various customers of plaintiff letters notifying them that they were infringing and threatening suit, and in September of 1927 plaintiff instituted this suit. Plaintiff has at all times denied the infringement, and stated that it is ready and anxious to defend any suit which defendants might elect to bring. No such suit had been brought, although acts sufficient to constitute infringement have occurred in this district. Plaintiff has a membership of approximately 13,000 raisin grape growers, and its corporate activities are centered in the marketing of these grapes. It owns the stock of the Delaware corporation, Sun-Maid Raisin Growers' Association, which manufactures for plaintiff into raisins and raisin syrup the grapes grown by plaintiff's members. The products are sold by Sunland Sales Cooperative Association and Sunland Sales Association. Plaintiff receives all of the profits from the manufacture and sale of its goods. The good will of the business is in plaintiff. The other corporations exist merely for the purpose of carrying out its corporate activities, and the products are put out under plaintiff's name. The notices complained of have been sent to the plaintiff, its subsidiaries, the advisory council of the plaintiff, and to plaintiff's customers, and have extended over a substantial period. The letter of August 15, 1927, was sent to a great number of customers, some of whom did not handle the syrup alleged to be an infringement but purchased only raisins, about which there was no complaint. Not being purchasers of syrup, some of these customers were immediately alarmed concerning the sale of such products of plaintiff as they were handling, and demanded guaranties. Plaintiff was compelled in many instances to execute such guaranties and to circularize its trade, advising its patrons that it stood ready and willing to protect them. The acts complained of, therefore, were of three characters: (1) To threaten plaintiff and its subsidiaries; (2) to threaten plaintiff's growers and source of supply; and (3) to threaten the trade. They were successive in time, covering a period of nearly two years. The customers thus far addressed are limited to the localities of Fresno, Los Angeles, and Chicago, and plaintiff contends that a similar letter sent to dealers in other important centers will have a most demoralizing effect upon its agents and selling organization. It avers a desire for the opportunity to conduct its business peacefully and without oppressive threats of infringement concerning it and its customers. The defendant contends it has no intention of sending further notices or making further threats. [1] The court is of the opinion that the application for injunction should be allowed. The law announced in the cases of Emack v. Kane et al. (C. C.) 34 F. 47; Racine Paper Goods Co. v. Dittgen (C. C. A.) 171 F. 631, at 633; Atlas Underwear Co. v. Cooper Underwear Co. (D. C.) 210 F. 347; Panay v. Aridor (C. C. A.) 292 F. 858; Adriance, Platt & Co. v. National Harrow Co. et al. (С. С. А.) 121 F. 827; and A. B. Farquhar Co., Limited, v. National Harrow Co. (C. C. A.) 102 F. 714, 49 L. R. A. 755-supports the plaintiff's basis for relief. In the firstmentioned case, Judge Blodgett remarked that a man should not be remediless against persistent and continued attacks' upon his business; that, instead of such attacks; the one urging infringement should come into court and seek a determination of the validity of his patent and his rights thereunder; that he should not menace the alleged infringer in circulars, letters, or newspapers, but should exercise due diligence in the prosecution of his suit for damages. The language of the Court of Appeals for this circuit in Racine Paper Goods Co. v. Dittgen is similar. There, as here, plaintiff notified defendants to test their patent in court, and yet defendants failed so to do. The court said: "It is unconscionable that appellant should be permitted to use a grant from the government to work a wrong upon appellee without bringing suit to secure a judicial determination. An injunction granted in a proceeding for that purpose would have afforded clearly defined limits to appellant's claims. The course pursued by it herein, by reason of its very indefiniteness, is more onerous and oppressive than would be the order of a court. It was practically prohibitive. It is one of the well-established powers and duties of a court of equity to remedy wrongs such as are here disclosed." In the case of Atlas Underwear Co. v. Cooper Underwear Co. (D. C.) 210 F. 347, Judge Geiger said: "In view of the widespread infringement, according to the view of the defendant, and particularly in view of the rapid development which confessedly has taken place in the last two years, it would seem that the duty rested peculiarly upon the defendant promptly to assert its right by instituting suits to restrain wrongful infringement of its patent, rather than by inaugurating and carrying on a system of terrorizing the trade." The proper forum for the trial of the controversy between plaintiff and defendants is the court, not circulars and futile correspondence. Only a chancellor receiving all of the evidence may adjudicate the controverted question. Where, as here, there is an entire failure thus upon the patentee's part to assert its rights in a proper forum, the court can only conclude there is some ulterior motive in his actions. As heretofore stated by the Circuit Court of Appeals for this circuit, "the practice of trying suits in newspapers or circulars, in order to scare or daunt competitors, is pernicious." See Panay v. Aridor (C. C. A.) 292 F. 858. [2] Defendant contends that his co-owners of the patent are necessary parties defendant, and that, because they are not served with process, this court is without jurisdiction. The writer had occasion to consider the subject of indispensable parties in the recent case of Equitable Trust Co. v. Denney et al., in the Circuit Court of Appeals. The nonresident defendants are not indispensable parties. The court cannot be ousted of its jurisdiction to determine the merits as between plaintiff and defendant because it happens that certain other defendants live out of the district. 25 F.(2d) 305 [3] Defendant contends also that there is no jurisdictional amount involved. Flaintiff here seeks to continue its business free from oppressive interference by defendant. The evidence shows that business to be extensive and valuable; that some 800 tons of plaintiff's raisin syrup and 30,000 tons of plaintiff's raisins were sold in the territory of Chicago alone in the past two years. The case of Glenwood Light & Water Co. v. Mutual Light, Heat & Power Co., 239 U. S. 121, 36 S. Ct. 30, 60 L. Ed. 174, is directly in point. There the court said: "We are unable to discern any sufficient ground for taking this case out of the rule applicable generally to suits for injunction to restrain a nuisance, a continuing trespass, or the like, viz. that the jurisdictional amount is to be tested by the value of the object to be gained by complainant. The object of the present suit is not only the abatement of the nuisance, but (under the prayer for general relief) the prevention of any recurrence of the like nuisance in the future. In Mississippi & M. R. Co. v. Ward, 2 Black, 492, 17 L. Ed. 311, 314, it was said: 'The want of a sufficient amount of damage having been sustained to give the federal courts jurisdiction will not defeat the remedy, as the removal of the obstruction is the matter of controversy, and the value of the object must govern.' The same rule has been applied in numerous cases, and under varying circumstances. The District Court erred in testing the jurisdiction by the amount that it would cost defendant to remove its poles and wires where they conflict or interfere with those of com. plainant, and replacing them in such a position as to avoid the interference. Complainant sets up a right to maintain and operate its plant and conduct its business free from wrongful interference by defendant. This right is alleged to be of a value in excess of the jurisdictional amount, and at the hearing no question seems to have been made but that it has such value. The relief sought is the protection of that right, now 25 F. (2d)-20 and in the future, and the value of that protection is determinative of the jurisdiction." In view of the foregoing, it follows that there will be a decree for the plaintiff against the defendant Ameer, as prayed, at defendant's costs. In re MEAKINS. District Court, N. D. Iowa, Cedar Rapids Division. April 12, 1928. No. 1767. 1. Bankruptcy152184(2) - Title of trustee in bankruptcy relates back to time of adjudication, and notice of incumbrance after that date is unavailing (Bankr. Act, §§ 47a, 70a, 1! USCA §§ 75 (a), 110(a)). Under Bankruptcy Act, §§ 47a, 70a, 11 USCA §§ 75(a), 110(a), title of trustee in banktime of adjudication, and actual notice of an incumbrance at any time after that date is unavailing. ruptcy of estate of a bankrupt relates back to 2. Acknowledgment 33-Subscription is part of certificate of acknowledgment. Subscription is a part of certificate of acknowledgment, since certificate would be incomplete without it. 3. Acknowledgment-lowa statute changing prescribed form of certificate of acknowledgment held not to change essentials prescribed in another statute (Code lowa 1924, §§ 10103, 10094; Code lowa 1897, § 2959). Code Iowa 1924, § 10103, changing slightly form prescribed for form of certificate of acknowledgment from that of Code Iowa 1897, § 2959, by inserting blank between words "me" and "personally," under which was written, "insert title of acknowledging officer," held not to change essentials required in certificate of acknowledgment under section 10094, in view of chapter 6, enacted at recent special session of Legislature amending Code Iowa 1924 and 1927, § 10103. 4. Acknowledgment 32-Certificate of acknowledgment indorsed on chattel mortgages held valid, though title of acknowledging officer did not appear in body of certificate (Code lowa 1924, §§ 10103, 10094; Code lowa 1897, § 2959). Certificate of acknowledgment indorsed on chattel mortgages held valid, though title of acknowledging officer did not appear in body of certificate as required by Code Iowa 1924, § 10103, where it complied with section 10094, prescribing essential requirements of certificate of acknowledgment and was in form prescribed by Code Iowa 1897, § 2959. In Bankruptcy. Edward Oscar Meakins filed a voluntary petition in bankruptcy, and was duly adjudicated. T. J. Davis and others, as trustees of the Alburnett Savings Bank, filed a claim, based on notes, for allowance as a secured claim. The referee disallowed the claim as a secured claim, and allowed it as a general claim, and claimants filed a petition for review. Referee's order reversed, and matter remanded, with directions. Chas. J. Haas, of Marion, Iowa, for claimants. R. S. Milner, of Belle Plain, Iowa, for trustee. SCOTT, District Judge. On January 3, 1928, Edward Oscar Meakins filed his voluntary petition in bankruptcy, and on January 4th was duly adjudicated. Later, and on January 12th, the bankrupt filed his schedules, and on January 24th W. R. Watsabaugh was elected trustee. Among the claims filed was one by T. J. Davis, H. A. W. Koch, and W. B. Andrew, as trustees of the Alburnett Savings Bank. The claim is based upon two promissory notes for $3,500, and $156.06, respectively, and the indebtedness evidenced purported to be secured by two chattel mortgages, one dated April 17, 1925, and filed for record on the same date, and one dated June 23, 1927, and filed for record on the same date. The claim was filed as a secured claim. Upon the filing of the claim, the trustee appeared and filed objections to its allowance as a secured claim upon the ground that the chattel mortgages were invalid as against the trustee, for the reason that they were not acknowledged in accordance with the laws of Iowa, and that the recording thereof did not give constructive notice so as to impress the trustee therewith. There was a hearing before the referee, the objection of the trustee was sustained, the claim disallowed as a secured claim and allowed as a general claim. The claimants seasonably filed their petition for review, assigning as error the action of the referee in disallowing the claim as secured. The petition for review presents but two questions: (1) The sufficiency of the certificate of acknowledgment of the notary; and (2) the contention that the filing of the schedules on January 12th, describing the indebtedness as secured by mortgages, constituted actual notice to the trustee, sufficient to sustain the validity of the security. The questions involved have been ably argued by counsel for the claimants and for the trustee, and the petition submitted upon the two questions stated. I shall dispose of the second question first. [1] Section 47 (a) of the Bankruptcy Act as amended by the Act of 1910 (11 USCA § 75 [a]) provides: "Such trustees, as to all property in the custody or coming into the custody of the bankruptcy court, shall be deemed vested with all the rights, remedies, and powers of a creditor holding a lien by legal or equitable proceedings thereon." Section 70 (a) 11 USCA § 110 [a]) provides: "The trustee of the estate of a bankrupt, upon his appointment and qualification, and his successor or successors, if he shall have one or more, upon his or their appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt, as of the date he was adjudged a bankrupt." Under these sections as uniformly construed, the title of the trustee relates back to the time of the adjudication, and actual notice of an incumbrance at any time after that date would be entirely unavailing. Albert Pick & Co. v. Wilson (C. C. A.) 19 F. (2d) 18, and cases cited. This was the view taken by the referee, and I think his order was correct upon that question. The question of the sufficiency of the certificates of acknowledgment, and upon which the referee held the record of the mortgages invalid, requires a more critical examination. The certificates of acknowledgment were identical as to each of the mortgages, and were in the exact form prescribed by section 2959 of the Code of Iowa of 1897. The specific point upon which the sufficiency of the certificates is challenged is that they do not conform to the form prescribed by section 10103 of the Iowa Code of 1924, which was in force at the time of the execution of both of the mortgages in question. Consideration of this question requires an examination of the statutory provisions of this state respecting the essentials and forms of acknowledgment before and after the Code of 1924. There are two pertinent sections touching the sufficiency of certificates of acknowledgment in the Iowa Codes of 1897 and 1924. Section 2948 of the Code of 1897 I think is the section designed to prescribe the essential requirements of a certificate of acknowledgment. That section is as follows: "Certificate of Acknowledgment. The court or officer taking the acknowledgment must indorse upon the deed or instrument a certificate setting forth the following particulars: "1. The title of the court or person before whom the acknowledgment was made; "2. That the person making the acknowledgment was known to the officer taking the acknowledgment to be the identical person whose name is affixed to the deed as grantor, |