"

. 94 Jl'EDERAL REPORTER.

'ofllerIbeIieficilu'ies under the.will,:and transferred to himself, as trusteeifOrI allother and· different fund ·created by the will, $33,000 .more of said 'annuitants' fund; It appears that the executor (trustee) thus'parted with so muchiof iihe amiuitants' fund in compliance with a .decree of the state: of New:Yorkmade in an actioll'in which he asked·leave to account and to have a new trustee subsmtuted.', Inasmuch,howeverj'as none of the saidannuitant8 were parties to such action, the decree was powerless to affect their rights. It appears, however, that the balance of the annuitants' fund turned over to the neW trustee, plus the $33,000 thus improperly diverted to some other fund/ and which i'S also' iIi the hands of the new trustee, will be amply Elufficient to produce the annuities. Therefore it will not be necessary to enter upon any discussion as the extent of liability of (trustee) personally;' A decree directing the new pay over to the annuitants the arrears of annuities unpaid. and t(j)retain the entiretund originally set apart for the purpose of producing such annuities, or the proceeds of such fund in Whatever subse1lueilt investments it may no;wbe. placed, will afford abundant reHef, and to such relief the seems clearly entitled. Decree accordingly.
DRAPER v. SKEtRRETT et at (Circuit Court, E. D. PennsylvanIa. June 27, 1899.)
UNFAIR COMPETITION-PRELI¥INARY INJUNQTION.

Although the rule Is well settled that a preliminary injunction against alleged unfair competition will only be awarded where the right Is plain, and the wrong beyond reasonable doubt, when It clearly appears, from the proofs and by compll,rison, that the packages in which defendants inclose and sell their goods are a misleading simulation of those of plaintiff, alld .intentionally a?their use will be granted.
,. ,. "., l I

.

,Tlifa .is a suit in to. enjoin alleged unfair competition in trade. On motion for preliminary injunction. Edward Brooks, Jr.; f()l' complainant. JohnW. Jennings, for . . : .
,

DALLAS, Circuit Judge. This is an application for' a preliminary injunction. Uhas been so frequently said by this court, and by the court ot appeals for this drcuit, that such an injunction should· be awatdedonly where the right is plain and the wrong beyond reasonable doubt, that this matter, at least, must now· be, regarded as settled.' The present'biUprays,fo,l' an injunction more comprehensive than, upon the proofs as now made, and at this stage, the plaintiff :is entitled to; but lam entirely satisfied that the envelope in whiQhthe defendants inclose· and seU their goods. is a misleading si'plUlation of thl\;t· of the plaintiff. To' this extent an examination of the respective envelopes, in connection with the affidavits submitted, is thoroughly conVincing. The only substantial difference between them is in the coloring; and this, in view of the undisputed fact that the color now use<!tby the defendants isthltt Which, at their request, they had 'beenpermiil:ted to use whetiacting under agreement with

DYGERT V. VERMONT LOAN & TRUST CO.

913

the plaintiff, is immaterial. The variation in details which is pointed out in the affidavit of one of the defendants is, when so pointed out, entirely obvious, but that an ordinary purchaser would be likely to mistake the one for the other seems to me to be evident. Moreover, no attempt has been made to satisfactorily account for the general resemblance of the two envelopes, which, notwithstanding minor differences, unquestionably exists; and, in the absence of intent to imitate the plaintiff's envelope, the striking similarity to it of that of the defendants would be quite inexplicable. Besides, the affidavit of John G. Sachs, from which it appears that the defendants in fact sent the affiant a package of the tissue in question, inclosed in one of their own envelopes, although he had asked for tissue of the plaintiff, has not been controverted, and is very persuasive as to the defendants' actual motive and design. ,In my opinion, a preliminary injunction to restrain the defendants from using the particular envelope complained of in the bill, or any other envelope made in imitation of that of the plaintiff, but to this extent only, ought now to be awarded, and it is so ordered.

DYGERT et ux. v. VERMOKT LOAN & TRUST CO. (Circuit Court of Appeals, Kinth Circuit. Xo. 501. 1.
USURy-WHAT LAW GOVERNS.

}lay 2, 1899.)

'Where a note executed in one state is made payable in another, under the laws of which it is not usurious, while it is usurious under the law of the state where made, the law of the state of performance will govern as to usury. The question whether a promissory note is governed, as to usury, by the law of the state where it was executed and in which suit is brought, or of the state in which it is made payable, in the absence of a state statute on the subject, is one of general law, upon which a federal court is not bound to follow the decisions of the supreme court of the state.

2.

FEDERAL COURTS-}'OI,LOWING STATE DECISIO:"S.

3.

USURy-PLEADING-BGRDEN OF PROOF.

The burden of alleging and proving usury in a note rests on the maker when sued thereon, and the plaintiff is not required to allege that the note, when payable in a different state, was so made for convenience and in good faith, and not for the purpose of evading the usury laws of the state where it was executed, and such an allegation, if made, need not be proved.

Appeal from the Circuit Court of the United States for the District of Idaho. S. C. Herren, for appellants. A. E. Gallagher, for appellee. Before GILBERT, ROSS, and }IORROW, Circuit Judges. GILBERT, Circuit Judge. On November 17, 1892, the appellants, Albert Dygert and Flora T. Dygert, his wife, executed to the appellee, the Vermont Loan & Trust Company, a promissory note, dated at Spokane, Wash., payable December 1, 1897, for $3,400, with interest after date at 6 per cent. per annum, both the principal and in!l4 F.-fi8