*357 laws of the state. The state undertook to tax the capital employed in the business precisely as it taxed the capital of its own citizens in like situation. For the purpose of arriving at the amount of capital actually employed, it caused the credits arising out of the business to be assessed. We think the state had the power to do this, and that the foreigner doing business cannot escape taxation upon his capital by removing temporarily from the state evidences of credits in the form of notes. Under such circumstances, they have a taxable situs in the state of their origin." Equally, then, had the state the power to tax the premium accounts here involved. They were not withdrawn from its constitutional authority, either by reason of the fact that they were payable in consideration of insurance, instead of loans or goods sold, or by the circumstance that the credits were not evidenced by written instruments. They were none the less enforceable credits arising in the local business. the policy holders, may be subjected to state taxation without constituting a taking of the company's property without due process of law. [Ed. Note.-For other cases, see Constitution al Law, Cent. Dig. §§ 891-906; Dec. Dig. § 283.*] CONSTITUTIONAL LAW (§ 283*)-DUE PRO CESS OF LAW-EXCESSIVE TAXATION. 2. A foreign insurance company cannot claim to have been denied due process of law because the assessments for taxation of the credits due from residents of the of mere guesswork, where opportunity was state were grossly excessive or the result afforded to institute, within a reasonable time fixed by law, a suit to reduce the assessments. [Ed. Note.-For other cases, see Constitution al Law, Cent. Dig. §§ 891-906; Dec. Dig. § 283.*] [No. 397.] Argued April 18 and 19, 1911. Decided IN ERROR to the Supreme Court of the firmed. a judgment See same case below, 124 La. 872, 50 So. 778. The facts are stated in the opinion. King, J. Blanc Monroe, and Harry H. It is also urged that the assessment was excessive. This question was not suitably which affirmed in part a judgment of the presented in the state court, for the suit Civil District Court for the Parish of Orwas brought for the cancelation of the en-leans, in that state, reducing, but refusing to cancel, assessments for taxation of credtire assessment upon the ground that, as a whole, it was without warrant of law, its due a foreign insurance company. Af or, if within the statute, was beyond the power of the legislature to authorize. It is said that, so far as the assessment was in excess of the actual credits, it was a nullity, as one of property not in existence. The subject of the assessment, however, was a class of credits which was within the taxing power, and the question is one of amount. Proper opportunity was afforded for its correction if it was too great; and if the plaintiff in error had seasonably Bought a reduction, availing itself of the remedy that was open to it under the state law, it could have obtained appropriate relief. Orient Ins. Co. v. Board of Assessors, 124 La. 872, 50 So. 778. In no aspect of the case can it be said that there was want of due process of law. The judgment is affirmed. (221 U. S. 358.) Messrs. Harry P. Sneed, George H. Terriberry, and H. Garland Dupre for defendants in error. *Mr. Justice Hughes delivered the opinion of the court: This is a writ of error to review a judg ment in a consolidated suit brought by a number of foreign insurance corporations doing business in Louisiana, to cancel assessments made by the board of assessors for the parish of Orleans for the years 1906, 1907, and 1908, and in the alternative for their reduction as excessive. The assessments, so far as they are in ORIENT INSURANCE COMPANY et al., question here, were for premiums due on Plffs. in Err., open account. In the course of the suit, a stipulation was made, setting forth the true amount of these premiums. By the judgment of the supreme court of the state, the assessments for the year 1908 were reduced to the amount shown by the stipulation, but those for the years 1906 and 1907 were sustained on the ground that the suit for reduction had not been brought within the time prescribed by law. 124 La. 872, 50 So. 778. With respect to the taxability of the pre For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 698. 1910. It mium accounts owing by Louisiana debtors, | similar result could have been reached for the question is the same as that presented the years 1906 and 1907 had action been in the case of Liverpool & L. & G. Ins. Co. taken within the period prescribed. v. Board of Assessors (decided this day) was competent for the legislature to fix a 221 U. S. 346, 55 L. ed. 31 Sup. Ct. reasonable time within which actions for reductions should be instituted, and there Rep. 550. was no violation of the Federal Constitution in adjudging the rights of the plaintiffs accordingly. Kentucky Union Co. v. Kentucky, 219 U. S. pp. 156, 157, 55 L. ed.. 31 Sup. Ct. Rep. 171; Terry v. Anderson, 95 U. S. 628, 24 L. ed. 365. The judgment of the Supreme Court of Louisiana is affirmed. Judgment affirmed. But it is said, upon the testimony in this record, that the debts were not due to the corporations by the policy holders, but by their Louisiana agents; that the premiums were charged to the agents, and that the corporations themselves gave no credit to the policy holders. In their petition in the state court the plaintiffs alleged that the only credits of any kind for money due to them were "uncollected premiums due under open account." They also set forth that, protesting against the legality of the tax, they had made reports under the statute showing the "uncollected premiums" for the years in question. And in their stipulation "the actual amounts of outstanding TRADE-Marks and TRADE-NAMES (§ 93*)— If, however, it premiums" were stated. can be said that* these accounts were due from the agents, still this would not avail the plaintiffs. The premiums were the consideration for the insurance contracts; they were the returns from the local business. Charging the premiums to the local agents did not withdraw the credits accruing to the corporations in the business transacted within the state from its taxing power. It is also insisted that the assessments must be adjudged invalid upon the ground that they were shown to be grossly excessive and to have been the result of mere guesswork; and, further, that the assessors disregarded the reports made by the plaintiffs, and that their applications to be heard were refused because a test case was pending. Whether, with respect to these contentions, any Federal question can be said to have been raised in the state court, is (221 U. S. 263.) MARK JACOBS, Appt., V. JOSEPH BEECHAM. EVIDENCE PRESUMPTIONS DIFFER 1. Conceding the burden of proof to rest upon the manufacturer of a medicine under a secret formula, when suing to restrain the use of his tradename by an alleged infrin ger, to show that the latter's medicine is not made by his formula, there is at least prima facie presumption of a difference between the two formulas. [Ed. Note.-For other cases, see Trade-Marks & Trade-Names, Cent. Dig. §§ 104-106; Dec. Dig. § 93. *I EVIDENCE-BURDEN OF PROOF UNFAIR 2. The burden rests upon defendant when UNFAIR COMPETITION MEDICINES-SECRET FORMULA. 3. Using the name of a manufacturer of pills under a secret formula upon pills made by a competitor is not saved from being unfair because it is accompanied by a statement that the latter makes the pills, even if it be conceded that he is using the other's formula. [Ed. Note.-For other cases, see Trade-Marks & Trade-Names, Cent. Dig. § 84; Dec. Dig. § 71.*] open to serious doubt. But it does not ap pear that the constitutional rights of the It would be plaintiffs have been violated. going too far to say that the assessments were nullities, or that the plaintiffs had been deprived of their property without due process of law. New York ex rel. Brooklyn City R. Co. v. New York State Tax Comrs. 199 U. S. pp. 51, 52, 50 L. ed. 84, 85, 25 Sup. Ct. Rep. 713. The assessments were 4. The use of the word "patent" to indiin fact made by the officers charged with cate a medicine made by a secret formula, that duty under the statute; if excessive, when the medicine is in fact not patented, there was opportunity for review and correc-is not such fraud as defeats the right of tion. The plaintiffs have not been held the manufacturer to relief in equity against unfair competition. bound by the assessment by reason of finality in the action of the assessors. See Central R. Co. v. Wright, 207 U. S. p. 139, 52 L. ed. 142, 28 Sup. Ct. Rep. 47. They had right of recourse to the courts of the state. If they are compelled to pay more than the amounts admitted by the stipulation, it is because they did not sue in time. They have procured a suitable reduction of the assessment for the year 1908; and a For other cases see same topic & § NUMBER in [Ed. Note. For other cases, see Trade-Marks & Trade-Names, Cent. Dig. § 94; Dec. Dig. § 85.*] TRADE-MARKS AND TRADE-NAMES (8_85*)— UNFAIR COMPETITION-DEFENSE-FRAUD ON PUBLIC. 5. The continued use of circulars and la *361 bels which suggest the foreign origin of a product, after its manufacture had been be gun in this country, and the use of the name of the original proprietor for some time after the business had been transferred to his Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 098. *271 *270 son, are not such fraud as defeats the right of a manufacturer to relief in equity against unfair competition. [Ed. Note.-For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 94; Dec. Dig. § 85.*] [No. 139.] Corruptio optimi pessima. Sound general propositions thus are turned to the support of a conclusion that manifestly should not be reached. We will follow and answer the argument in the order in which we have stated it. If, in a technical sense, the burden of proof is on the plaintiff to prove Argued April 21 and 24, 1911. Decided that the defendant's pills are not made A May 15, 1911. by his formula, there it at least a prima facie presumption of difference, just as in PPEAL from the United States Circuit the case of slander there is a presumption Court of Appeals for the Second Circuit that slanderous words are false. A difto review a decree which affirmed a decree of ferent rule would prevent the owner of a the Circuit Court for the Eastern District secret process from protecting it except of New York, enjoining the use of the name by giving up his secret. Again, when the of a manufacturer of pills under a secret defendant has to justify using the plaintiff's formula upon pills made by a competitor. tradename, the burden is on him. Finally, Affirmed. as the case presents what is a fraud on its See same case below, 86 C. C. A. 623, face, it is more likely that the defendant is 159 Fed. 129. *a modern advertiser than that he has discovered the hidden formula of the plaintiff's success. As to the defendant's method of advertising, he does not simply say that he has the Beecham formula, as in Saxlehner v. The facts are stated in the opinion. Messrs. George Frederick Hurd, Cornelius W. Wickersham (by special leave), Max J. Kohler, Moses Weill, and Isaac Weill for appellant. Messrs. John L. Wilkie and Charles W. Wagner, 216 U S. 375, 54 L. ed. 525, Gould for appellee. 30 Sup. Ct. Rep. 298, but he says that he makes Beecham's pills. The only sense *Mr. Justice Holmes delivered the opin-in which "Beecham's Pills" can be said to ion of the court: This is a bill by the owner of a proprietary or patent medicine, so called, made according to a secret formula, and known as "Beecham's Pills," to restrain the defendant* from using the same name on pills made by him, and trying to appropriate the plaintiff's good will. The plaintiff had a decree in the circuit court, enjoining the defendant from using the word "Beecham" in connection with pills prepared or sold by him, which decree was affirmed by the circuit court of appeals. 86 C. C. A. 623, 159 Fed. 129. It have become a designation of the article is The present appeal is based on two or three different grounds. The first of these is that anyone who honestly can discover the formula has a right to use it, to tell the public that he is using it, and for that purpose to employ the only words by which the formula can be identified to the public mind. As to the defendant's having discovered the formula, it is said that if he makes a different or inferior article the burden is on the plaintiff to prove the fact. As to the method adopted by the defendant to advertise his wares, which, apart from other imitations, consists in simply marking them "Beecham's Pills," it is said that the proper name cannot constitute a trademark, and has become the generic designation of the thing. The defendant's use of the name is said to be saved from being unfair by the statement underneath 148. that he made the pills. To The other grounds of appeal are charges *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes *272 *274 *273 are. is in the whole subject of complaint. There is not the slightest ground for charging the plaintiff with an attempt to defraud the public by these statements, or any reason why the judgment below should not be affirmed, unless it be in a motion for the plaintiff to dismiss. This was met by the fact that the bill seemingly relied upon the registration of the words "Beecham's Pills" as a trademark under the act of Congress as one ground for the jurisdiction of the circuit court. Warner v. Searle & H. Co. 191 U. S. 195, 205, 206, 48 L. ed. 145, 147, 148, 24 Sup. Ct. Rep. 79; Standard Paint Co. v. Trinidad Asphalt Mfg. Co. April 10, 1911, 220 U. S. 446, 55 L. ed. - 31 Sup. Ct. Rep. 456. that the plaintiff's boxes have upon them false statements such as to exclude them from equitable relief. The one most pressed is that certain of the boxes carry the words "Beecham's Patent Pills," and that the pills are not patented. The answer is that the word does not convey the notion that they To signify that, the proper word is "patented" rather than "patent," and it commonly is used separately, not prefixed to a noun. On the other hand, the use of the word patent to indicate medicines made by secret formulas is widespread and well known. It is mentioned in the dictionaries, and it occurs in the plaintiff's circulars. We think it clear that there is no danger that anyone would be defrauded by the form of the label on the plaintiff's box, and that it would be wrong to press Holzapfel's Compositions Co. v. Rahtjen's American Composition Co. 183 U. S. 1, 46 L. ed. 49, 22 IN THE MATTER OF GEORGE HARRIS, Sup. Ct. Rep. 6, so far as to cover this case. Decree affirmed. (221 U. S. 274.) Bankrupt. BANKRUPTCY ( 242*)-SELF-CRIMINATION Requiring the bankrupt to deposit his books of account in the office of the receiver, there to remain in the custody of the bank. rupt, who is to afford the receiver free opportunity to inspect them, the receiver to use and permit them to be used only for the purpose of the civil administration of the bankrupt estate, and not for any criminal thority of the bankruptcy court, and does proceeding, is a proper exercise of the aunot compel the bankrupt to be a witness against himself in a criminal case in the constitutional sense, although the knowledge gained from the books may be used to procure other evidence for use against him in a criminal prosecution. [Ed. Note.-For other cases, see Bankruptcy, Cent. Dig. §§ 399-401; Dec. Dig. § 242.*] [No. 165.] It is objected further that the plaintiff's boxes are labeled "Beecham's Patent Pills, price 25 cents, sold by the Proprietor, St. Helen's, Lancashire, England," or "Beecham's Patent Pills, St. Helen's, Lancashire," or "Beecham's Pills, Saint Helen's," and that a circular contains the statement that "the pills accompanying this pamphlet are specially packed for U. S. America, being covered with a quickly soluble pleasant coating," etc. The statement in the circular is true in a literal sense, but suggests the belief that the pills were made in England, whereas in fact they now are made in New York. The labels may be said to convey a similar suggestion in a fainter form. With this may be mentioned the remaining object of cavil, that some of the boxes still bear the name of Thomas Beecham, although Thomas Beecham transferred his interest to the plaintiff, his son, in 1895. Both of these matters are small survivals from a time when they were literally true, Argued April 28, 1911. Decided May 15, and are far too insignificant, when taken with the total character of the plaintiff's advertising, to leave him a defenseless prey to the world. The facts are that the business was started by Thomas Beecham, in England, that he made the pills there and got a considerable custom in America, that he took the plaintiff into partnership, continuing the business under the old name, and that in 1895 he retired, turning over his interest to his son. The son went on under the same name for a time, but his boxes now bear his own name as proprietor, and his circulars show that he is his father's successor. About 1890 they began to make the pills in New York as well as in England, but, as has been seen, not every phrase in the advertisements was nicely readjusted to the change. That is all there 1911. N A CERTIFICATE from the United States Circuit Court of Appeals for the Second Circuit, presenting the question as to the right of a court of bankruptcy to require the bankrupt to deposit his books of account with the receiver, where they contain evidence that may tend to incriminate the bankrupt. Answered in the affirmative. The facts are stated in the opinion. Messrs. Louis J. Vorhaus and Moses H. Grossman for Harris. Messrs. Abram I. Elkus and Carlisle J. Gleason for the receiver. * Mr. Justice Holmes delivered the opinion of the court: In this case the district court made an For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes *278 628. is one of the misfortunes of bankruptcy if it follows crime. The right not to be compelled to be a witness against oneself is not a right to appropriate* property that may tell one's story. As the bankruptcy court could have enforced title in favor of the trustee, it could enforce possession ad interim in favor of the receiver. § 2. In the property careful provision to protect him from use of the books in aid of prosecution, the bankrupt got all that he could ask The question certified is answered, "Yes.” (221 U. S. 280.) CHRISTOPHER STRASSHEIM, Sheriff of V. MILTON DAILY. DITION-SUFFICIENCY OF INDICTMENT. order that the bankrupt should deposit his 1. A count in an indictment for obtaining us. Cent. Dig. $ 24: Dec. Dig. $ 29. For other definitions, see Words and Phrases, vol. 8, pp. 7511-7513.] EXTRADITION (§ 30*)—FUGITIVE FROM JUS TICE. overt act which is, and is intended to be, a 2. One who does, within the state, an material step towards accomplishing crime, and then absents himself from the state, and does the rest elsewhere, becomes a fugitive from justice for extradition purposes when the crime is complete, if not before. [Ed. Note. For other cases, see Extradition, HABEAS CORPUS (§ 103*)-TO TEST EXTRA- [Ed. Note. For other cases, see Habeas Corpus, Cent. Dig. §§ 90, 91; Dec. Dig. 103.*] [No. 638.] 3. A showing that the accused was in the If the order to the bankrupt, standing state in the neighborhood of the time alalone, infringed his constitutional rights, leged in the indictment as the date of the it might be true that the provisions intend-crime is enough to preclude a discharge uped to save them would be inadequate, and on habeas corpus in extradition proceedings, that nothing short of statutory immunity from justice. on the ground that he was not a fugitive would suffice. But no constitutional rights are touched. The question is not of testimony, but of surrender,-not of compelling the bankrupt to be a witness against himself in a criminal case, present or future, Argued April 3 and 4, 1911. Decided May but of compelling him to yield possession of property that he no longer is entitled to PPEAL from the District Court of the keep. If a trustee had been appointed, the United States for the Northern District title to the books would have vested in him of Illinois to review an order discharging by the express terms of § 70, and the bank-on habeas corpus a person held under a com. rupt could not have withheld possession mitment in extradition proceedings. Reof what he no longer owned, on the ground versed and prisoner remanded. that otherwise he might be punished. That A 15, 1911. The facts are stated in the opinion. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes *280 |