10.50 5 10:38 *615 on the Mo bank of the old River SURVEYOR'S RECORD 223 6 1697 13.00 7.00 Ston wit.Stone 88.36 4144 185 910 3552 27 50 2 47.72 13.20 Stane 18 if 121 7 take Stone 8 4387 49.73 between J.M Hacker. 38.77 Nebr. County Surveyor /stone 30 Stong *617 Thin-line shows meander of Ma River when the Government surveyed this land * Fractional Townships 66 and 67 North of Ranges 42 and 45 west of the 5th Principal Meridian covering land of Old fisseari River Des State of Missouri County of Atchison) *618 608 OOT. TERM, 25 SUPREME COURT REPORTER. [No. 50.] And it is further ordered, adjudged and decreed by the court that the commissioners heretofore appointed, namely, Alfred Hazlett, Esq., and John W. Halliburton, Esq., be, and they are hereby, directed to establish, or cause to be established, under their direc- Argued and submitted March 16, 1905. Detion, permanent monuments marking said boundary line between the state of Missouri cided April 24, 1905. and the state of Nebraska, as shown by said IN ERROR to the United States Circuit aforesaid surveys, and that said commissioners establish such permanent monuments upon said boundary line as may in their opinion be necessary for permanently marking and establishing the same, and that they make a report to this court of their acts and doings therein, and that said report contain a full and complete description of said boundary line and the monuments thereon estab lished. And that in the execution of this decree said commissioners are hereby authorized to employ such surveyors and other assistants, and procure such material as may be necessary in the establishment of said permanent monuments marking said boundary line, in accordance with the decree of this court. Court of Appeals for the Fifth Circuit to review a judgment which affirmed a judg ment of the Circuit Court for the Eastern District of Louisiana in favor of defendant in a petitory action for real property, originally begun in the District Court of St. Mary's Parish, in the state of Louisiana. Dismissed for want of jurisdiction. PETITION FOR CERTIORARI to review the same judgment. Denied. Also a See same case below, 53 C. C. A. 31, 116 The facts are stated in the opinion. Todd for plaintiffs in error. Messrs. Edgar H. Farrar, B. F. Jonas, and E. B. Kruttschnitt for defendant in error. Mr. Chief Justice Fuller delivered the opinion of the court: This was a petitory action for real property, or an action of ejectment, brought by the heirs of Gonsoulin, plaintiffs in error, against the Gulf Company, defendant in error, in the district court of St. Mary's parish, Louisiana, where the land was situated. The petition alleged that a grant or conces And it is further ordered that said commissioners be paid for their services herein such compensation as may be agreed upon by the respective parties to this suit and said commissioners, and if the parties to this suit and said commissioners are unable to agree upon said compensation, such compensation shall be awarded to said commissioners as in the opinion of this court, upon the filing of the final report by said commissioners, may seem proper. It is further ordered that said commission by the Spanish government was origisioners make said final report of their acts and doings in the premises to this court on or before the 15th day of May, 1905. March 6, 1905. (198 U. S. 115) nally made to Dubuclet, St. Clair, and Gonsoulin in 1783, and that the interests of Dubuclet and St. Clair were conveyed to the heirs of Gonsoulin after 1808. That the United States government issued a patent to the heirs of Gonsoulin, and that petitioners' "claim by said grant and conces FERNAND BONIN, Valcour Bonin, et al., sion covering said lands dates back to the Plffs. in Err., บ. GULF COMPANY. year 1783 or thereabouts, and said concession was recognized and confirmed by the United States government after proper and legal surveys had defined the boundaries and Appeal-review of judgment of circuit court segregated said grants." of appeals-certiorari. That said lands were "now in the possession of, and illegally detained and held by, 1. The mere assertion of title under a pat- the Gulf Company, a body corporate, organent from the United States presents no quesized under the laws of the state of New Jertion which, of itself, deprives the judgment sey, domiciled in the state of New Jersey." of the circuit court of appeals, in a petitory action for real property, of that finality which exists if the jurisdiction of the circuit court depends solely upon diversity of citizenship. 2 Certiorari to a circuit court of appeals will not be granted upon dismissing, for lack of Jurisdiction, a writ of error to that court, where the judgment sought to be reviewed was entered May 27, 1902, the writ of error was allowed May 22, 1903, the cause dock. The Gulf Company filed its petition for the removal of the cause, alleging that it was, at the time the suit was brought, and when the petition was filed, a citizen of New Jersey, and that the heirs of Gonsoulin were citizens of the state of Louisiana. The cause was removed accordingly, and plaintiffs filed in the circuit court an amended and supple 117 116 0 (198 U. S. 118) Fay-Sholes Company, Petitioners, v. WYCKOFF, SEAMANS, & BENEDICT. mental petition, stating that all the plain- | HOWE SCALE COMPANY OF 1886 and tiffs were citizens of Louisiana, and that defendant was a citizen of New Jersey, and praying that petitioners "be recognized as the true and lawful owners of the said property described in the patent, letters patent, or grant, issued to Dautrieve Dubuclet, Benoist de St. Clair and François Gonsoulin by the United States of America, on August 21st, 1878," and that they be put in possession. Plaintiffs pitched their title solely on this patent. Defendant, for peremptory exception, pleaded the prescription of ten years, the prescription of thirty years, and res judicata. 1. 2. Unfair competition-use of family name. Unfair competition does not arise out of the use in a corporate name of the surnames of one or more of the incorporators, where such use by the individuals themselves or in a partnership would not be open to that charge. A manufacturer of typewriters under the names "Remington" and "Remington Standard" is not entitled to protection against the adoption by persons bearing respectively the surnames "Remington" and "Sholes" of the name "Remington-Sholes" for their typewrit ers, and the giving of that name to the corporation formed for their manufacture and sale, where the only confusion in the minds of the public as to the origin of the product results from the similarity in names, and not from the manner of their use. [No. 130.] April 24, 1905. On the trial the circuit court charged the jury to find for defendant on the pleas of prescription, and nonsuited defendant on the plea of res judicata. Verdict was returned, and judgment entered accordingly, and the case having been carried to the circuit court of appeals for the fifth circuit, the judgment was affirmed. 53 C. C. A. 31, 116 Fed. 251. The jurisdiction of the circuit court rested alone on diversity of citizenship. The as- Argued January 16, 17, 1905. Decided sertion of title under a patent from the United States presented no question which, of itself, conferred jurisdiction. & P. R. Co. v. Bell, 176 U. S. 328, 44 L. ed. 490, 20 Sup. Ct. Rep. 399. No dispute or controversy as to the effect or construction of the Constitution, or of any law or treaty of the United States, on which the result depended, appeared by the record to have been really and substantially involved, so that it could be successfully contended that jurisdiction was invoked on the ground that the suit arose under Constitution, law, or treaty. Arbuckle v. Blackburn, 191 U. S. 405, 48 L. ed. 239, 24 Sup. Ct. Rep. 148. Florida CON On the pleadings and evidence, the questions in the circuit court were questions of prescription and of res judicata; in the circuit court of appeals, of prescription; and plaintiffs' petitions did not assert, in legal and logical form, or at all, the existence of a real controversy, in itself, constituting an independent ground of jurisdiction. The judgment of the circuit court of appeals was, therefore, final, and the writ of error must be dismissed. The judgment was entered in the circuit court of appeals May 27, 1902; this writ of error was allowed May 22, 1903; and the case was docketed here June 1, 1903. Plaintiffs in error filed a petition for certiorari herein, February 17, 1905, which was submitted February 27, and its consideration postponed to the hearing on the merits. In our opinion, that writ should not be granted. Ayres v. Polsdorfer, 187 U. S. 595, 47 L. ed. 317, 23 Sup. Ct. Rep. 196. Writ of error dismissed; certiorari denied. 25 S. C.-39. N WRIT and Cross Writ of Certiorari to the United States Circuit Court of Appeals for the Second Circuit to review a decree which reversed a decree of the Circuit Court for the District of Vermont enjoining the use of the designation "Remington" or "Rem-Sho" as the name or part of the name of typewriting machines, and remanded the cause with instructions to decree in favor of complainant only as to the name "Remington." Decrees of both courts below reversed, and the cause remanded to the Circuit Court, with directions to dismiss the bill. See same case below, 58 C. C. A. 510, 122 Fed. 348. * Statement by Mr. Chief Justice Fuller: This was a bill exhibited, in September, 1898, by Wyckoff, Seamans, & Benedict, a corporation of New York, in the circuit court of the United States for the district of Vermont, against the Howe Scale Company of 1886, a corporation of Vermont, alleging that complainant had been for many years engaged in the manufacture and sale of typewriting machines known in the markets and to the trade and public, and referred to, identified, offered for sale, and sold as the "Remington typewriter," and the "Remington Standard typewriter," and that the words "Remington" and "Remington Standard" had been registered in the Patent Office under the act of Congress; and charging defendant with fraud and unfair compet tion in making use of the corporate name Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trade-Marks and Trade-Names, §§ 68-77, 84. |