
    BOARD OF TRADE OF CHICAGO, ILL., v. ELLIS et al.
    (Circuit Court, W. D. Michigan, S. D.
    March 30, 1903.)
    1. Preliminary Injunction — Board of Trade Quotations — Unauthorized Use — Quotations Obtained from Other Source.
    The fact that defendant receives quotations not from the complainant board of trade, but from an “open board of trade,” the quotations of which are so sympathetic that in a few moments they are identical with those of the complainant, will not warrant a preliminary injunction.
    2. Same — Defendant’s Denial — Speediness of Final Hearing.
    Where defendants, sued to restrain their use of board of trade quotations, deny such use, and show that they obtain the same quotations from another source, and issues are made or can readily be forced by complainant so as to procure a speedy final hearing, a preliminary injunction will be refused.
    8. Same — Decision in District Court of Same Circuit — Effect.
    Where a district court of the same circuit has refused a board of trade an injunction to restrain the use of its quotations by bucket-shops on the ground that it is a too nearly similar concern, a preliminary injunction, sought for the same purpose, will be refused until the rulinf has been reviewed by the Circuit Court of Appeals.
    Henry S. Robbins and Bundy & Travis, for complainant.
    Clapperton & Owen and Thomas F. Shay, for defendants Burgett and others.
    E. J. Adams, for defendants Ellis and others.
   WANTY, District Judge.

In this matter the application for a preliminary injunction must be denied for two reasons. The first is that from the showing here it does not seem to me that a preliminary injunction is due tO' the • complainant, nor was it at the time that the bill was filed. If this showing of the defendants is true, they were not receiving directly, or from this central organization at Hammond, or from anywhere else, the quotations from the complainant board of trade, but were receiving them from what is known as the “Open Board of Trade,” the quotations of which, it is said by complainant’s counsel, are so sympathetic that they must be within a few moments, at most, identical with those of the complainant board of trade. The instantaneous sympathetic change on the Open Board of Trade I don’t think reason will quite carry out, but, if it would, then there would be no reason to conclude that the quotations that these people put up at the time the evidence for the bill was gotten, which are identical with the Chicago Board of Trade, came directly from the Chicago Board of Trade at all, but might have come from some other trading organization which had quotation > following the Chicago Board of Trade, from the same sympathy that makes the Open Board of Trade quotations identical with those of the Chicago Board of Trade. But these defendants say that they have not since long before this bill was filed used these quotations, the use of which is sought to be enjoined in this case; neither do they expect to use them; and they' show the reason for it. If counsel for the complainant has given us a clear and lucid view of what the Open Board of Trade does, and how their quotations follow the Chicago Board of Trade, I cannot see how there is any reason for their ever using quotations from the Chicago Board of Trade, because they would get the identical quotations at the identical instant of time from the Open Board of Trade. But, be that as it may, they say they have not used the complainant’s quotations, and do not intend to use them, and I think, before a preliminary injunction should issue, there should be some reason to doubt their honesty in that regard. To be sure, counsel says they may shift, and, for all we know, they have shifted this morning, and are getting the Chicago Board of Trade quotations; but as to one of the defendants the case is at issue, and the complainant can take his proofs at once, and can put these people on the stand, and have them swear to the details of their transactions in getting their quotations, and, if they swear falsely, they will commit a criminal offense; if they do not, the complainant will know exactly what they are doing. In the other cases the issue can be very quickly forced by the complainant, and proofs can be taken, and the complainant can come here, and have a final hearing, and get its permanent injunction, if entitled to it. ‘

But there is another reason why I would hesitate to grant the preliminary injunction before the final hearing of this cause, and that is, I understand in the Southern District of Ohio, in this circuit, a similar application has been made, and ■ the judge there has come to an opposite conclusion from that which was arrived .at by the judges who have been quoted here. If that is so, I should hesitate long on a preliminary hearing before I should take an opposite view to a brother district judge, who was dispensing the law in the same circuit where I am sitting. A comity which exists would not compel me to follow his ruling, but would suggest that, until his ruling has been reviewed by the Circuit Court of Appeals, I ought to follow it.

Mr. Robbins: May I correct your honor about that? Judge Thompson decided an issue not here. He did not decide any of the issues here.

The Court: He came pretty near deciding that you were the same thing that you accuse these bucket-shops of being; that there was no difference between you, only you were a very much larger concern of the same kind. If I came to the same conclusion, I couldn’t give you a preliminary, or any other kind, of an injunction. I don’t say I should come to that conclusion, but I should say I would hesitate long before taking an opposite view from Judge Thompson before his ruling had been reviewed by the Circuit Court of Appeals, and for these reasons I shall deny the application for a preliminary injunction in this cause.  