engraving and printing upon national securities is the sole ground of criminal liability under the federal statute. Neither the worthless character of the instrument nor the intent to defraud are elements of the offense. If a person were to sell or otherwise use an instrument within its prohibition, and at the same time expressly declare its character, his act would come as clearly within the provisions of the statute as if done clandestinely. It is likewise true that the instrument might be as valuable as the genuine instrument in the similitude of which it was engraved, and still the defendant would be guilty, if it was engraved in the similitude of a security or obligation of the United States. Third. At the present time and at all times since the passage of the act of June 20, 1864, at points in this country within 100 miles of the national boundary line, Canadian paper currency has found a considerable circulation. An examination of any of these bills will show that they bear such a likeness to the paper currency of this country as not to be distinguished by the general public in the ordinary transactions of business. It is a matter of common knowledge that they are frequently passed and received as American money. If the construction contended for by the government be adopted, every person who has in his possession a Canadian bill, with intent to sell or otherwise use the same, is guilty of a crime; for the fact that the bill is worth its face is wholly immaterial under the statute. The fact that for more than 25 years no prosecution was ever instituted for the use of state bank or Canadian bills furnishes convincing proof that the construction now urged by the government is wholly unwarranted.

The only conclusion, it seems to me, which can be drawn from the history of the statute and from the considerations above adverted to is that, to bring an instrument within the provisions of the clause of section 5430 under consideration, such instrument must, in its inception, have been engraved and printed with an intentional design to simulate the engraving and printing upon some obligation or security issued under the authority of the United States. Something more than general appearance or adaptability to deceive is required. The court must be satisfied that the instrument in its inception was designed to be in the similitude of the engraving and printing upon some United States obligation or security. In other words, the similitude must not be simply incidental, and such as arises from the fact that the instrument in question was intended to subserve the same purpose as some obligation or security of the United States, but must be specific and direct and such as arises out of an intentional design to copy such obligation or security of this government. Of course I do not mean that, in prosecutions for the violation of this statute, it is incumbent upon the government to prove by extraneous evidence that the instrument complained of was originally designed to simulate some obligation or security issued under the authority of the United States. The instrument itself is to be looked at, and if it bears such a similitude to the obligations of the government as to indicate that' it was designed to simulate those obligations, or even

if it should bear such a close resemblance as instruments usually do which are intended to simulate the obligations of the government, although the resemblance were accidental, the offense would be made out. But that incidental similitude which arises from the fact that the instrument complained of was intended to subserve the same purpose as national obligations and securities is not sufficient to make its possession a crime, if, in its inception, the instrument was lawful.

It follows that the indictment charges no offense, and the motion to quash must therefore be granted.

HALSTEAD et al. v. HOUSTON.

(Circuit Court, E. D. Pennsylvania. November 6, 1901.)
No. 20.

UNFAIR COMPETITION-CIRCULARS ADVERTISING BOOK-USE OF GARBLED LET-
TER TO MISLEAD.

Complainant published a letter announcing to the public that he was engaged in writing a life of President McKinley, and giving the name of the publisher.. He further stated that there was being advertised another "Life of McKinley," purporting to have been written by him; that in 1896 he had prepared a campaign publication regarding the then Republican candidates for president and vice president, which he understood was being changed, and sold as his "Life of McKinley," but that he had not had anything to do with such book since its first publication. Defendant, who was publishing and selling still another book on the same subject, issued a circular in which he copied that part of complainant's letter which denied his connection with the second work mentioned therein, but omitted the portion relating to complainant's new work, and added an indorsement, which, in connection with the extract printed, was calculated to mislead the public by inducing the belief that any book offered as complainant's was fraudulent, and not authentic. The proofs showed that such circular in fact created the confusion in regard to complainant's book which it was the purpose of his letter to prevent. Held, that such circular was constructively fraudulent, even if not so intended, and its promulgation caused an injury to complainant, against which he was entitled to protection of injunction.1

In Equity. On motion for preliminary injunction.

Hector T. Fenton, for complainant.

Joseph T. Bunting and Wm. C. Hannis, for defendant.

DALLAS, Circuit Judge. If the proofs upon the present motion for a preliminary injunction disclosed nothing which was not before the court when a similar application was recently denied by Judge McPherson in Halstead v. John C. Winston Co., III Fed. 35, I would simply follow the ruling which was then made; but, as facts have been shown in this case which did not appear in that one, I have felt it incumbent upon me to independently consider the question as now presented, and, so considering it, have been constrained to reach a different result. The alleged wrongful use of an extract from Mr. Halstead's announcement to the public, which was com

1 Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper, 30 C. C. A. 376.

plained of in the case of Halstead v. John C. Winston Co., is also complained of now; but the present defendant has indorsed upon that extract a printed statement, and this the defendants in the former case had not done. The extract and indorsement referred to are as follows:

"To the Public: I prepared a campaign publication six years ago regarding the Republican candidates then for president and vice president. I understand it is undergoing further change, and purported to be my 'Life of McKinley. I have had nothing to do with it since 1896, and I want this clearly understood. It is a back number, and I trust will be looked upon as such. Murat Halstead."

Extract from letter in which Mr. Halstead wishes to warn the public against buying his old "Campaign Book" now being sold as a new "Life of McKinley.'

(Indorsement.)

"A Big Fraud Exposed. A Scheme to Swindle the American

Public Uncovered.

"The unprecedented demand for an authentic life of President McKinley has induced certain unscrupulous publishers to bring forth a number of inferior books on the life of the late president. These books are mostly made up of newspaper clippings, or are old campaign books rehashed, with an extra chapter added, and are being palmed off on the public as 'authentic,' when exactly the opposite is true. The publishers of some of these so-called 'Lives of McKinley' are claiming that their book is written by Murat Halstead. On the front of this circular is an extract from a recent letter which Mr. Halstead has addressed to the public on this subject, which speaks for itself. When you come in contact with persons who have already subscribed for one of these fake Halstead books, or for some other unreliable Life of McKinley, show them this circular, and the result will be that they will promptly cancel the orders that they have already given, and at once subscribe for a copy of your book. Everybody wants the 'Authentic Life of President McKinley,' with introduction and biography by Col. A. K. McClure, life and public services by Charles Morris, and memorial tributes by members of Mr. McKinley's cabinet and other distinguished persons from different parts of the world. This is the book with which you are prepared to supply them, and with such ammunition as this to help fight your battles you should simply sweep the country. Take special notice that Mr. Halstead's letter is under date of September 21st, 1901, at Chicago. It sounds the 'death knell' to a further sale of the so-called 'Life of McKinley' which it is intended to suppress, and effectually 'heads off' all competition from agents engaged in handling such fraudulent books. The Publishers."

It appears that Mr. Halstead issued two announcements, each of which included the identical text of the above extract, but which slightly differed from each other in the omitted preceding matter. This preceding matter is, in each instance respectively, as follows:

(1) "I am writing The Illustrious Life of William McKinley, our Martyred President,' and hope to make it worthy. There is advertised another 'Life of McKinley,' entitled 'Life and Distinguished Services of William McKinley,' retailing for $1.00, alleged to be by me."

(2) "I am writing The Illustrious Life of William McKinley,' which is being published by the World Publishing Co., of Buffalo, N. Y., and hope to make it worthy. There is advertised another 'Life of McKinley,' entitled 'Life and Distinguished Services of William McKinley,' alleged to be by me."

It will be observed that in both forms it was plainly stated that Mr. Halstead was then writing a life of William McKinley, and that in both of them attention was pointedly directed to the fact that his new book was not to be confounded with another "Life of McKinley," alleged to be by him. Hence, from either announcement, when read in its integrity, it clearly appeared that the object in view was to prevent the other "Life of McKinley," alleged to have been written by Mr. Halstead, from being confounded with the "Life" which he was then writing; whereas the extract, when separated from its context, and read in connection with the indorsement placed thereon by the defendant, palpably tends to create the very confusion which the plaintiffs, for the protection of their property in the new work, had rightfully sought to avoid. Moreover, the confusion, which in the former case appeared to be a "possibility," has in the present one been shown to be an actually existent fact, and the consequence is, whether fraudulently intended or not, that an injury is done to the plaintiffs, the infliction of which the defendant might readily forbear without foregoing the exercise of any right of his own. It is of no avail to say that the injurious result occasioned is not designed. It should be avoided. The defendant's circular is misleading; and persistence in its promulgation, even if not an actually purposed fraud, certainly amounts to such a constructive, legal fraud as a court of equity is in duty bound to repress. Singer. Mfg. Co. v. June Mfg. Co., 163 U. S. 169, 16 Sup. Ct. 1002, 41 L. Ed. 118; Manufacturing Co. v. Hipple (C. C) 109 Fed. 152.

Accordingly, it is ordered that a provisional injunction issue, restraining the defendant, his servants, agents, and employés, in the terms of the first prayer of the bill; said injunction to continue in force until the final hearing of the cause, or the further order of the court.

CODDINGTON v. PROPFE.

(Circuit Court of Appeals, Third Circuit. November 6, 1901.)

No. 24.

PATENTS-INFRINGEMENT-Machine For MAKING WAXED TAPERS.

The Coddington patent, No. 303,984, for machinery for manufacturing waxed tapers and coated strings, claims 2, 3, 4, and 14, held not anticipated, and valid, but not infringed.

Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.

E. Hayward Fairbanks, for appellant.
Hector T. Fenton, for appellee.

Before ACHESON, DALLAS, and GRAY, Circuit Judges.

ACHESON, Circuit Judge. This is an appeal by the complainant from so much of the decree of the circuit court as dismissed the bill in respect to letters patent No. 303,984, for improvements in machinery for manufacturing waxed tapers and coated_strings, granted on August 26, 1884, to George W. Coddington. The pat

ent has no less than 37 claims, but a reversal of the decree is asked only as to claims 2, 3, 4, and 14, which are as follows:

"(2) A machine for coating strings with wax, consisting of a pan, B, in which to melt the wax, and mechanism substantially as described, for retaining the strings in said pan, and drawing them horizontally through the same, substantially as and for the purpose specified. (3) The combination of the vessel for holding the cord-coating material, devices for immersing the cord therein, drum or roller, C, and feed rollers, d and d1, all supported in an appropriate frame and mechanism, substantially as described, for causing said rollers to revolve, substantially as and for the purposes specified. (4) The combination of a vessel for holding the melted cord-coating material, staples, or guiding devices having openings b1 and b2, and means for drawing the strings through the staples or guides, b1, b2, substantially as and for the purposes specified." "(14) In a machine for coating strings, the roller, C, provided with a porous exterior, substantially as and for the purposes specified."

Upon the proofs in this record touching the prior art it may be said correctly that these specific claims were not anticipated, and that they are respectively valid. The real controversy, however, arises upon the question of infringement. In the court below the case (as to this patent) was ruled upon that question, and adversely to the complainant. The circuit court made the following specific findings of fact:

"It was not new with Coddington to provide machinery or mechanical apparatus to cover wick or strings with a waxing or coating composition, and to cut off the same in definite lengths; the ancient wax tapers and wax matches having been so made. It was not new with Coddington to provide a mechanical structure to deliver sheets of paper or a series of cords or wicks to a waxing or coating pan, means to keep the cords submerged therein, means to strip off the surplus coating, driven rollers to draw the paper or cords from the waxing pan, and means to wind up the waxed paper or cord, or to deliver it to other devices for further treatment. The prior patents to Bancroft of 1882, Page of 1881, Montgomery of 1849, and McPhetridge of 1856, each show and describe some or all of this mechanism, substantially as stated in the preceding paragraph. It was not new with Coddington to provide, in a single apparatus or machine, mechanisms operating automatically and in unison, whereby a string was fed forward, coated with wax or like composition, cooled, drawn forward by driven rollers, delivered to cutting devices and cut off in definite lengths, in one continuous operation, such a machine or apparatus being described in prior McPhetridge United States patent of 1856."

Our own independent investigation of the proofs confirms these findings, and leads us to the conclusion that Coddington disclosed no such feature of novelty as entitled his claims to any broad construction. Beyond the specific devices shown, and colorable changes therein, the claims are not to be carried. The drum or roller, C, of the patent, to which our attention is particularly called by the appellant's counsel, is shown and described as driven by belting, and is further referred to in the specification thus:

"This drum, C, is covered with cloth, which is kept constantly moistened by water from the trough, F, the preferred means for conveying the water from the trough to the drum being a strip of cloth, 5, one edge of which is in the trough, and the other edge resting on the drum. This strip, 5, acts on the principle of a siphon, and keeps the cloth on the drum, C, moist, and the strings, b, are thus drawn between two moistened surfaces, and are thus cooled and moistened."