Copyright
Walter Malins Rose.

A code of federal procedure. (Superseding Detsy's Federal procedure.) Embodying enactments of Congress, constitutional provisions, established principles, and court rules, in force December 1, 1906, and the Bankruptcy act of 1898, with amendments and orders, together with a online

. (page 86 of 114)
Online LibraryWalter Malins RoseA code of federal procedure. (Superseding Detsy's Federal procedure.) Embodying enactments of Congress, constitutional provisions, established principles, and court rules, in force December 1, 1906, and the Bankruptcy act of 1898, with amendments and orders, together with a → online text (page 86 of 114)
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clusive rights of the complainant under the same by fraudulently placing^
or causing to be placed upon boots and shoes not manufactured by com-
plainant, in plain, conspicuous, printed letters, the name "C. F. Benkert &
Son," in imitation of the name "C. Benkert & Son" as charged in the
bill of complaint, and that the said respondents Samuel Feder, Morris
Rosenthal, and Amelia Rosenthal, have sold and caused to be sold three
hundred and nineteen dozens of pairs of boots and shoes having upon them
the said fraudulent and spurious mark "C. F. Benkert & Son."

That the net cost of said 319 dozens of pairs of boots and shoes to said
respondents was $11,757.20; that the gross amount received by said re-
spondents upon the sale of said 319 dozens of pairs of boots and shoes was-
$10,970; that the respondents are entitled to deduct from the gross amount
received by them on the sales of said boots and shoes: Net cost, $11,757.-
20; on account of expenses of conducting business, $1,833.00; on account of
bad debts, S583.21 ; on account of freight, $030.00; on account of interest
paid, $100.00; total, $14,903.41.

That the net profit received by repondents from the sale of said 310'

2S94



riocedure] COrYUIGIIT FORMS. F. 74S.

dozons of pairs of boots and shoes bearing the said fraudulent mark was
$2,0t)G.59.

It is further ordered, adjudged, and decreed that the complainant dt) liave
and he hereby has judgment against the said respondents, Samuel Feder
and Amelia Rosenthal, executrix of the last will and testament of Morris
Rosenthal deceased, for the said sum of $2,066.59, the amount of net prof-
its realized by respondents on the sale of said 311) dozens of pairs of boots
and shoes, and that he liaA'e execution therefor.

It is further ordered, adjudged, and decreed that the said complainant do
fiave and recover of and from the said resjjondents herein his costs and
charges and disbursements in this suit, to be taxed in the usual manner
by the clerk of this court, and that he have execution therefor.

It is further ordered, adjudged, and decreed that the said respondents
Samuel Feder and Amelia Rosenthal, executrix of the last will and testa-
ment of Morris Rosenthal, deceased, and each of them, their and each of
their servants, agents, clerks, workmen, and all persons claiming or holding
under or through them, or either of them, be and ar<^ ;ind each of them is
hereby perpetually enjoined and restrained from manufacturing or selling
or in any way disposing of boots and shoes or boots or shoes having
stamped or printed or in any way marked thereon the name of "C. F.
Benkert & Son," or any other name in imitation or simulation of the said
trademark or trade name "C. Benkert & Son."

Costs taxed at $1,816.70.

JOSEPH McKENNA,

Judge.

Dated November 13, 1894.

See notes to Form No. 541; Eq. R. 85, 86.

F. 748.
Bill in Equity for Infringement of Copyright.

[Title of Court and Cause.]

To the Hon. — , judge of said court:

John P. Broder and Hugo V. Schlani, citizens of and residents of the
United States and of the city and county of San Francisco, in the northern
district of California, bring this their bill of complaint against the Zeno
Mauvais Music Company, defendant, a corporation organized and existing
under and by virtue of the laws of the State of California, and having its
office and principal place of business in the city and county of San Francis-
co, in said northern district of California, as your orators believe, and.
thereupon your orators complain and say:

That on or about the thirtieth day of September, 1805, your orators be-
came the sole proprietors of a certain musical composition entitled "Dora
Dean," of which one Bert Williams Avas the author and composer, and by
whom the same was duly assigned and transferred to your orators, and of
which your orators became the exclusive owners and proprietors on the
said thirtieth day of September, 1895, and before the same had been pub-
lished.

2895



F. 74S. COPYUIGHT FOllMS. [Code Ted.

Tliat on or about the fourth day of February, 189G, such proceedings
were duly had by your orators that your orators did on said day secure a
copyright of said musical composition and melody pursuant to the act of
Congress for securing copyrights, which took effect July 8, 1870, and the
amendments thereto and said copyright was duly issued to your orators
under the hand and seal of the librarian of Congress, and the original rec-
ord of said copyright is in the library of Congress.

That the following is a true copy of such proceedings:
San Francisco Postoffice.

Office of the Postmaster.

San Francisco, Cal., Feb. 4, 1896.
Received on this day from the firm of Broder & Schlam, for mailing to
the librarian of Congress, one song, the title-page of which reads:

"Dora Dean."
Words and Music by
Bert A. Williams of
Williams & Walker,
and this certifies that the said song was mailed to the librarian of Con-
gress for copyright purposes on this date.

FRANK McCOPPIN,
I Postmaster.

Jas. A. Richardson,

Secretary.
"No. 9719 B. Library of Congress.

Copyright Office, Washington.
To wit: Be it remembered that on the tenth day of February, 1896,
Broder & Schlam of San Francisco, have deposited in this office the title
of a musical composition, the title or description of which is in the follow-
ing words, to wit:

'Dora Dean.'
Words and Music by
Bert A. Williams,
the right whereof they claim as proprietors in conformity with the laws
of the United States respecting copyrights.

A. R. SPOFFORD,
Librarian of Congress."
That a printed copy of said title was before publication deposited in
the mail by your orators addressed to the librarian of Congress at Wash-
ington, D. C, and that within ten days from the publication thereof your
orators did deposit in the mail addressed to the librarian of Congress at
Washington, D. C, two copies of such copyright musical composition, and
did within ten daj's after its publication deposit in the mail, addressed
to the librarian of Congress, at Washington, D. C, two completed printed
copies thereof of the best edition is.sued.

I'hat your orators gave due notice of their said copyright by inserting

2896



rrocedure] COPYRIGHT FORMS. F. 748

in the several copies of every edition published, to wit, inscribing upon
some visible portion of said musical composition or of the substance on
which the same was mounted the following:

"Copyright, 1895-0 by Broder & Schlam," by inserting in the several
copies of each edition of said song or musical composition or melody pub-
lished the following words, viz., "Copyright 1895-6 by Broder & Schlam."

That your orators beg leave to make said original copyright, the copy
thereof, and the original assignment a part of this their bill of complaint,
and refer to such original record.

That your orators are and ever since the date of September HO. 1895,
have been the proprietors of said musical composition or melody and have
offered for sale and sold the same with the said notice of such copyright
printed on the title page thereof as hereinbefore set forth.

That by reason of the long experience and great care of your orators in
their business as publishers of and dealers in musical compositions, songs,
and melodies, and the peculiar and pleasing nature, arrangement, composi-
tion, and quality of the music or melody of said musical composition, both
to the jmblic and persons of musical taste and culture, the said song,
music and melody has become popular and widely known and much sought
after, and has acquired a high and popular reputation, and has commanded
and still commands an extensive sale at the city of San Francisco in said
district and throughout the United States, in the cities and towns thereof,
which has been and still is a source of great profit to your orators.

That said song and melody are known as such to the public by reason of
the pleasant and harmonious strains and notes of the melody to the
buyers and users thereof, and the dealers in music to the community and
persons of musical culture and taste and by your orators copyrighted as
aforesaid.

That notwithstanding the quiet use, enjoyment, and profits of your ora-
tors of said song, music, and melody, and of the copyright protecting and
resei-ving the same and all rights thereunder to your orators, the defend-
ant, the Zeno Mauvais Music Company, well -knowing the premises and of
your orators' copyright, and willfully disregarding your orators' rights,
and thereafter and in the year 1896, wrongfully and fraudulently prepared,
published, and offered for sale and did sell at the city of San Francisco and
elsewhere in various cities of the United States a musical composition,
song, and melody, entitled '"Ma Angeline," the music or melody of whicii
said song is an imitation of the music and melody of your orators' music
or melody, copyrighted as aforesaid by your orators in 1896, under the
title of "Dora Dean," all of which was and still is being done with intent
to deceive and defraud the public and persons of musical taste and cul-
ture and the buyers and users thereof; the defendant, the Zeno INIauvais
Music Company has published and sold and is publishing and .selling said
song, music, and melody entitled "IMa Angeline," the arrangement and
strains of the music and melody of which are substantially the same as
and identical with your orators' aforesaid copyrighted composition.

That such imitation of the strains, music, and melody of said publica-

.Fed. Proc— 182. 2897



1' 748. COI'YRIGHT 1<X)RMS. [Code FeJ.

lion of the melody of the defendant is calculated to deceive the public
and persons of musical taste and culture and the purchasers and users
of your orators' said song, music, and melody, and actually has and still
does mislead many of them to buy said publication entitled "Ma Angeline,"
published and sold by the defendant, because it has or contains the same
music or melody published and sold by your orators, greatly to the dim-
inution of their said business and profits.

That by reason of the premises and the wrongful acts of the defendant
as aforesaid your orators have been injured to their damage $5,000, and are
still being injured by the continued sale and publication by the defendant
of the music and melody published and sold as aforesaid entitled "Ma An-
geline,*' though defendant was duly notified by your orators a long time,
prior to the commencement of this action that your orator's song, music,
and melody had been duly copyrighted by your orators, to the injury of
your orators, the defendant has thereby unjustly and unlawfully made and
still makes great gains and profits which belong of right and according to
law to your orators and to your orators' great damage and injury.

All of which acts and doings are contrary to equity and good conscience,
and done to the manifest injury of orators in the premises.

Maj- it please your Honor meantime to restrain the defendant from pub-
lishing, selling, or ofl'ering for sale the said musical composition, song, or
melody entitled "Ma Angeline,'' and that your orators may move for such
injunction upon proper notice during the pendency of this suit.

I\Iay it please your Honor to grant unto your orators a writ of sub-
poena issuing out of and under the seal of this honorable court, directed to
the said defendant. The Zeno Mauvais Music Company, commanding said
defendant on a certain day therein to be named to be and appear before
this honorable court and make answer unto this bill of complaint and
stand to perform and abide such further order, direction and decree as may
be made against said defendant, and to do and receive what your Honor
shall seem meet.

And your orator will, etc.



Solicitors for Complainants.
(Verification.)
[Endorsed] :

Upon giving a bond to be approved by the court, in the sum of $1,000,
let a preliminary restraining order be issued in pursuance of the prayer
of the bill, to continue until the further order of the court.

JOSEPH McKENNA,
Circuit Judge of the northern district of California.



2898



F.


Too.


F.


756.


F.


757.


F.


758.


F.


759.


F.


760.


F.


761.


F.


762.


F.


763.


F.


764.


F.


765.


F.


766.



CHAPTER 31.
TAKING OF PROOF—DEPOSITIONS ETC.

Notice of taking testimony orally.

Order referring cause to examiner.

Examiner's rejjort.

Stipulation for use of testimony at trial taken before filing
of amended bill and answer.

Notice to take evidence orally.

Notice of motion for appointment of special examiner.

Order fixing time for taking testimony.

Order appointing special examiner.

Order to show cause why time for taking testimony should not
be extended.

Order extending the time of taking testimony.

Examiner's certificate at close of testimony.
766. Stipulation reserving questions of relevancy and competency of tes-
timony.
F. 767. Order appointing special examiner to take testimony of distant

witnesses.
F. 768. Report of special examiner.

F. 769. Depositions under commission — order for dedimus potestatem.
F. 770. Writ of dedimus potestatem.
F. 771. — commissioner's return.

F. 772. Testimony de bene esse — affidavit to obtain commission for ex-
amination of witnesses under Eq. R. 70.
F. 773. Affidavit under R. S. sec. 863.
F. 774. Notice of deposition under R. S. sec. 863.
F. 775. Notice for examination of witness de bene esse.
F. 776. Notice to the opposite party of examination de bene esse.
F. 777. Subpoena of witness de bene esse.
F. 778. Caption for deposition de bene esse.

F. 779. Attachment against a witness for disobeying subpoena.
F. 780. Stipulation for taking depositions by interrogatories before a

foreign notary.
F. 781. Forms of interrogatories.
F. 782. Cross-interrogatories.

F. 783. Certificate and return to interrogatories and cross interrogatories.
F. 784. Letters rogatory.

F. 785. ^Motion to strike out part of deposition.
F. 786. Motion to strike out part of deposition.
F. 787. Order striking out parts of depositions.

289D



FOUMS OF DEPOSITIONS, ETC.



[Code Fed,



l\ 788. Motion to suppress depositions and parts of depositions.

F. 789. Order on motion to suppress.

F. 790. Order to open and publish depositions.

F. 791. Petition for order to re-examine witnesses.

F. 792. Order for re-examination.



F. 755.
Notice of taking Testimony Orally.
[Title of Court and Cause.]

Notice is hereby given that we shall proceed to take proof for final
hearing on the part of the complainant under the sixty-seventh rule of the
Supreme Court for courts in equity as amended, or in accordance with
the statute in such case made and provided, and in pursuance of the rules

and practice of this Court, orally, before , an examiner of this

court, or some other proper officer, under said statutes and rules, at

, , on the — — day of , at the hour of .



The names and residences of witnesses who live at a greater distance
from the place of trial than one hundred miles whom it is intended to ex-
amine are stated below.

You are invited to attend and cross-examine my witnesses produced. The
examination will be adjourned from day to day and to such time and
place as may be required, without further notice.

Dated .



Complainants' Solicitors.



To



Defendants' solicitors.
Names and residences of witnesses.

F. 756.
Order Referring Cause to Examiner,

At a stated term to wit, etc.

Present, the Honorable, etc., United States District -Tudge.
[Title of Court and Cause.]

It is ordered that this cause be, and the same hereby is, referred to

, Master in Chancery, and he is hereby appointed examiner to

take the testimony in this cause and report to this Court.

F. 757.
Examiner's Report.

To the Honorable Judges of the United States Circuit Court for the District

of .

I hereby certify and report that, in pursuance of an order made herein on

the day of , 18 — , I proceeded to take the testimony in the

above-entitled cause, and that the same, embracing four hundred and

2900



J



rrocodurej FORMS OF DEPOSITIONS, ETC. F. 75f

thirty-four (434) pages, together with Exhibits -'A," '-B," "C," "G," '"H,
"I," "K," "L," '-M," "N," "O," "P," and '-R," is herewith transmitted.
. All of which is respectfully transmitted.



Examiner in Chancery.
TESTIMONY.
[Title of Court and Cause.]

Appearances: For complainant, , Esq., and , Esq.

For defendants and for , intervener, Esq.

Date .

Transcript of evidence



Stenographer.
Depositions of Witnesses Produced, Sworn, and Examined on the Part of
the Complainant.
The parties being present by their respective counsel at the office of

the examiner at the city of , county of , and State

of , the following proceedings were had:

F. 758.
Stipulation for Use of Testimony at Trial Taken Before Filing of Amended

Bill and Answer.
[Title of Court and Cause.]

It is hereby stipulated and agreed by and betw^een the attorneys for the
plaintiff and the attorneys for the defendants in the above-entitled cau.se

that the proof heretofore taken in said cause before — , examiner,

may be used on the trial of the above cause to the same effect as if
said proof had been taken subsequently to the filing of the amended bill
and the answer thereto. And either party desiring to take furtlier proof
may do so under the rules of practice in equity causes in the said Court.

Witness our hands this day of , A. D. 18 .



Attorneys for plaintiff.



Atty. for .

F. 759.

Notice to Take Evidence Orally.

In the Circuit Court of the United States for the District of Oregon.

The United States,
Complainant,

vs.

The Oregon & California Railroad Company,

John A. Hurlburt, and Thomas L. Evans.

Defendants.

To the above-named complainant, and to Daniel R. Murphy, U. S. District
Attorney, and to John M. Gearin, solicitor for complainant:

2901



F 700. FORMS OF DEPOSITIOXS. FTC. [Code Fed.

You and each of you will take notice that the defendants above named
desire the evidence to be adduced in the above-entitled cause to be taken
orally.

Dated July 24, 1894.

E. C. BRONAUGH,
L. L. McARTHUR,
W. D. FEXTOX,

E. C. BRONAUGH, JR.
Solicitors for defendants.
County of Multnomah.

State of Oregon,

Due service of the within notice is hereby accepted in said county, Ore
gon, this twenty-fourth day of July, 1894, by receiving a copy thereof,
duly certified to as such, by W. D. Fen ton, of solicitors for defendants.

D. R. MURPHY,
Solicitor for complainant.
F. 760.
Notice of Motion for Appointment of Special Examiner.
[Title of Court and Cause.]
To , Esq., solicitor for defendant:

Please take notice that at a — term of this Court, to be held

■on the day of , IS—, at , at o'clock,

or as soon thereafter as counsel can be heard, the above-named plaintitl

will move the Court for an order that be appointed special ex-

.aminer herein under the sixty-seventh Rule in Equity as amended, to
.take the deposition of witnesses on behalf of said plaintiff.

Dated .



Solictors for plaintiffs.
F. 761.
Order Fixing Time for Taking Testmony.
:[Title of Court and Cause.]

Now, at this day. upon motion of Mr. W. D. Fonton, of counsel for
the defendants, the plaintiff being present by its counsel, Mr. Daniel R.
Murphy, United States attorney, and agreeing thereto, it is ordered that
the plaintiff be, and it it liereby. allowed thirty days from this date in
which to take its evidence herein ; that after notice from the plaintiff that
its evidence in chief is taken, the defendants be, and they are hereby,
allowed sixty days in which to take their testimony herein, and that, after
notice shall have been given to said plaintitl' that the said evidence is
taken by said defendants, the plaintiff be, and it is hereby, allowed tliirty
days further time in which to take its testimony in rebuttal; and it is
further ordered that said evidence be taken orally, and tliat either party
is authorized to apply to the Court for further time, or for modification of
this order, upon sufficient cause being shown therefor.

2902



Procedure] FORMS OP DEPOSITIONS. ETC. F. 764.

F. 762.
Order Appointing Special Examiner.

[Title of Court and Caiiso.]

Now, at this day, comes the plaintiff, by Mr. John M. Gearin, special
counsel, and the defendants by Mr. W. D. Fenton, of counsel, and tiiere-
upon said defendants move the Court for an order appoiiitiuu; some quali-
fied person at the city of Portland, Oregon, to act as examiner of this C^ourt
to take orally such depositions and testimony as the parties hereto desire
to be taken at said city of Portland. It is, therefore, ordered that Mr. F.
S. Laflferty, of Portland, Oregon, be, and he is hereby, appointed a special
examiner of this Court, with power and authority to take and transmit to
this Court such depositions and testimony in this cause as llie parties
may suit the convenience of said examiner and of the jiarties hereto; and
that said examiner extend said testimony when so taken, and report the
same to this Court with all convenient speed, said testimony, when so
taken, to be used upon the trial of this cause.

CHARLES B. BELLINGER,
Judge.
F. 763.
Order to Show Cause why Time for taking Testimony Should not be Ex-
tended.
[Title of Court and Cause.]

On reading the affidavits of and , and on motion of

F. S., solicitor for the defendant in the above-entitled cause, it is hereby
ordered that copies of the same, with a copy of this order, be served on

the solicitor for the plaintiff in said cause or before the day of

, 18 — , and that said plaintiff show cause, if any he have, at

■ , on the day of , 18 — , at o'clock, , why

the time allowed for taking testimony on behalf of the defendant in said

cause should not be extended to and including the day of — — ,

18—.



Judge.
764.
Order Extending the Time for Taking Testimony.
[Title of Court and Cause.]

On reading and filing the defendant's order to show cause and the affi-
davits of and thereto annexed, and after hearing

, of counsel for the plaintiff, and , of counsel for the

defendant, it is ordered that the time allowed for taking testimony on
behalf of the defendant in the above-entitled cause be extended to and

including the day of — , 18 — . and that the plaintiff have

days thereafter within which to take testimony in rebuttal.



2903



F. 7G5. FORMS OF DEPOSITIONS, ETC. [Code Fed

F. 765.
Examiner's Certificate at Close of Testimony.

District of . — ss.

I, , examiner, hereby certify that the foregoing testimony in

the above-entitled cause was taken before me at the times and places in
record thereof indicated: that before testifying each of the several wit-
nesses was by me severally and duly sworn to tell the truth, the whole
truth, and nothing but the truth; that said testimony was taken in short-
hand, and by consent of parties the signature of the respective witnesses
to their extended depositions was waived.

Examiner.
F. 766.
Stipulation Reserving Questions of Relevancy and Competency of Testi-
mony.
[Title of Court and Cause.]

Pursuant to stipulation, the parties hereto appearing by their counsel,
M., representing the plaintiff, and 0. and P. representing the defendant,

appeared before , special examiner, on this day of ,

18 — , in the United States Court building, and thereupon the following
proceedings were had on behalf of the defendant.

It was thereupon stipulated by the parties hereto that all questions as
to the relevancy and competency of the evidence offered at this hearinj;
be considered reserved.

(Set out proceedings.)

F. 767.
Order Appointing Special Examiner to Take Testimony of Distant Wit-
nesses.
[Title of Court and Cause.]

December 11, 1893.

Now, at this day, comes G. W. Hunt, intervenor herein, by Mr. C. E. S.
Wood, of counsel, and C. B. Wright, purchaser of the property herein,
by Mr. Lewis L. IMcArthur, of counsel, and C. B. Wright, moves the
Court for an order appointing some qualified person at Philadelphia, in the
State of Pennsylvania, authorizing and empowering him, as a special ex-
aminer of this Court, to take and transmit to this Court the testimony
of C. B. Wright. J. H. Anderson, W. H. Clark, and C. B. Wright, Jr., wit-
nesses on the part of said C. B. Wright, purchaser, to be used on the trial
of this cause; and it appearing necessary, to prevent a failure of justice,
that the testimony of said witnesses should be taken:

Tt is ordered that E. Z. Brailey, of Philadelphia, Pennsylvania, be, and he
is hereby, appointed a special examiner of this Court, and that he be, and



Online LibraryWalter Malins RoseA code of federal procedure. (Superseding Detsy's Federal procedure.) Embodying enactments of Congress, constitutional provisions, established principles, and court rules, in force December 1, 1906, and the Bankruptcy act of 1898, with amendments and orders, together with a → online text (page 86 of 114)