990
.98 ! FEDERAL REPORTER;
.oplnion think, ,coliclusiveeven IiOWi' Therefore, the ,onlY' questlolJ.;whic)lllllregaxd):ss stili, even partlallY,an opeUl,:onejis that which arises under the allegatlon,;ofunfair competition in trade; but it is proper to mention that the learned counsel of the plaintiffs, upon the oral argument, expressly reserved their right to hereafter insist upon every ground for relief which they had set up, and in their brief they say "that complainant {lannot rest 'th"lscRse until it has been passed' upon by the court of Ultimate jurisdiction. " The, quesUonsof ,: ,copyright are' of such cor.trolling importance, and are so bound up with other questions involved, that such a 'course is absoluteiy imposed upon us." Upon, the hearing of the motion for a preliminary injunction, I reached the conclusion that a case of Unfair competition had been established,buf; l ,¥JI1. now that that conclusion was erroneous. .The· ProOfS as noW-presented have, I thillk, somewhat strengthI am ened the plaintiff's position, bUt, .after careful unable to:fl.nd that the defendants'. unfair, wit4Plltgiving to sOJ;ne of. the .facts :which were, considere'l1 by tb,e court of appeals' a; significau<;e which that tribunal has said should Ilot be ascribed to them. Conseqllently I am constrained .to holl1 that the bill has not been sustained, The primary facts are, In general; plain auduncontroverted, , The only substantial question is as to the which Should be dediIcMfrom them, and as that question, together with those relating to copyright, Is to be again submitted to the court of last resdrt,' I do not believEdhat any useful end would be attained by any further discussion of it by me. Bill dismissed, with costs.
In re MARTIN;'
(Circuit Court, S. D. New York. May 11, 1899.) BANKRUPTCy-SOLVENQY.
BROWN, District Judge. A debtor haviIlg permitted all his stock in trade to be sold under a judgment and execution, and the residue of his property being insufficient to pay his debts, held, upon the issue of "solvency," that the "fair goods'levled on (Bankroptcy Law, rf,'sribd.15) must ):>e. tllken with to, theactua!. situation ,and the liability of the goods and, iithe. sale under Hecution thereafter had was in all respects a fa,.ir an,d reasonable one, that the,del:!tor was bound by the result as to the valuationof.tb.e goods, ,and could not'prove his solvency by higher estimates of thefjo"vaJue if theyhll-d been' free, frolll levy, and Sold at retail, or in the ordinary course of , ,
REYNOLDS v. RITOH et ai:' (Circuit Court, S. D. New York. April 3, 1899.) WiIliamBiaikle and RogerM. Sherman, for the motion. William B. Putney, for Amherst College. Bronson, Winthrop, for Hamilton C"ollege. C. N. Bovee, for Thomas G. Ritch. John E. Parson", for B1Jlkley & Vaughan. Noah H. Swayne, for Lafayette College. LACOMBE, Oircuit Judge. (1) The motion to require defendants' to appear, demur, plead, orariswer to 'the cross bill is denIed'. (2) Theimotion that this cause be heard with the principal cause instituted in the: original bill by Emma S. Fayerweather and others is denied, with leave to renew when this cause is actually ready for bearing. (3)'l'he ;motion that the testiJnony taken by the complainant under the replication to the plea and answer of trustees of, Hamilton College to 'said original bill, stand and lie read and received with the same force and effect: R's if the' same 'had been ,taken in support of the croSll bill is granted. (4). The motion· to stay, proceedings ts denied. . '. i
MEMORANDUM DECISIONS.
991
SOUTHERN PAC. R. CO. v. GoROECK et al. (CIrcuit Court, S. D. California. January 6, 1897.) J. D. Redding, for complainant. W. B. Wallace. for defendants. ROSS, Circuit Judge. To the second amended bill of complaint, filed herein July 6, 1896, the defendants Interposed a plea, which the complainant caused to be set down for argument, and which was, by the respective parties, SUbmitted upon the same briefs theretofore filed upon the hearing of the plea to the first amended bill. For the purpose of disposing of the plea so submitted, the court must assume, without proof on either side, the facts to be as set out in the amended bill where not controverted by the plea, and, where so con· troverted or inconsistent, to accept as true the contradictory and Inconsistent allegations of the plea, together with such additional facts as are therein set out. Railroad Co. v. Groeck, 74 Fed. 585, and cases there cited. The case, as now presented, is substantially the same as when last under consideration. For the reasons given In the opinion then filed, and which Is reported in 74 Fed. 585, an order will be entered sustaining the plea, with leave to the complainant, if It be so advised, to reply to the plea, and take issue in respect to the matters of fact therein alleged, within 20 days from this date.
THOMSON-HOUSTON ELECTRIC CO. v. BULLOCK ELECTRIC 00. (Circuit Court S. D. New York. March 6, 1899.) Motion for Preliminary In· Frederick H. Betts, for the motion. Arthur Stem, George J. Hardiing, and Clifton V. Edwards, opposed. LACOMBE, Circuit Judge. In view of the conflict of testimony, both expert foIU1d other, it would seem an unwise exercise of judicial discretion to grant rei8training order before the hearing upon pleadings and proofs. EJiiD OP
CASES
IN VOL.
us.