dealers of copyrighted books. These rules are attached to the complaint and set out in full in the opinion of this court in the case of the Bobbs-Merrill Company against these same defendants (just decided), 139 Fed. 155. In that case, while the facts were some-. what different, the questions of law involved here were extensively discussed. Paragraph 3 of those rules provides as follows: "That the members of the association agree that such net copyrighted books, and all others of their books, shall be sold by them to those booksellers only who will maintain the retail price of such net copyrighted books for one year, and to those booksellers and jobbers only who will sell their books further to no one known to them to cut such net prices, or whose name has been given to them by the association as one who cuts such prices, or who fails to abide by such fair and reasonable rules and regulations as may be established by local associations as hereinafter provided." The complainants, in their attempt to live up to these rules of this association, and to enforce them against others and these defendants, and to maintain the fixed retail price of books sold in the retail trade, and to exclude from the business of selling their publications, or the publications of any other publisher of books (copyrighted publications), those who will not observe such rules, have fixed the retail price of their copyrighted books and adopted the following method of selling, viz.: For stock orders a salesman in most instances goes to a dealer and takes his order, or the dealer orders by mail, or, if a New York City dealer is purchasing, he sends a messenger. As to notifying dealers, purchasers, of the rules as to net prices and discount on fiction, fixed by the rules of such association, the complainants print a notice on their catalogues and on their billheads, reading as follows: On catalogues: Charles Scribner's Sons' Catalogue of Publications. All Books sent Postpaid except where Postage is Indicated. Copyrighted Net books published after May 1st, 1901, and copyrighted fiction published after February 1st, 1902, are sold on condition that prices be maintained, as provided by the Regulations of The American Publishers' Association. On such books the month of publication is given except where the book is announced as In Press. Books starred are mostly Educational and are subject to a slightly different discount to the Trade than other Net books. On billheads: All claims for Allowance must be made within five days after receipt of Goods -Not Responsible for Books ordered sent by Mail, or sent out to be Packed. 153-157 Fifth Avenue Between 21st & 22nd Streets. ...190 New York.... M. Folio... Bought of Charles Scribner's Sons' Publishers, Importers and Booksellers. Terms: Net Cash. Payable with Exchange on New York, Sent per.... Copyrighted Net books published after May 1, 1901, and copyrighted fiction published after February 1, 1902, are sold on condition that prices be maintained as provided by the regulations of the American Publishers' Association. In complainants' evidence we find this on this subject: Q. "Is any other method taken to bring the rules of the association to the notice of purchasers in the wholesale department?" A. "Not by Charles Scribner's Sons." As to new customers the witness says: Q. "When a new firm comes to deal with Charles Scribner's Sons that is unknown to you, what do you do?" A. "We get what information we can as to their standing and whether or not they will be willing to maintain the rules of the association by referring the matter to the association for investigation, or sometimes by sending them this blank which has been presented." Q. "Can you say whether or not these rules are, in one way or another, brought to the attention of every purchaser from the wholesale department?" A. "No, sir." Q. "They are not brought to their notice?" A. "Except in the way I have described, by the bill heads and the catalogues, and, in case of a new purchaser, by correspondence and sending that notice in some cases." Q. "Have any sales been made by Charles Scribner's Sons, since the adoption of those rules in their wholesale department, except subject to those rules?" A. "No, sir." Q. "They are not brought to their notice?" A. "Except in the way I have described, by the bill heads and the catalogues, and, in case of a new purchaser, by correspondence and sending that notice in some cases." It is conceded that defendants knew of the rules and of the custom of the complainants. Defendants did not purchase any books of complainants. They had a purchasing agent, who purchased them where he could get them, paying therefor in cash. In the Bobbs-Merrill Case, just decided and above referred to, this court has held, following the Circuit Court of Appeals in the Second Circuit in Harrison v. Maynard, Merrill & Co., 26 U. S. App. 99, 61 Fed 689, 10 C. C. A. 17, that, so long as the publisher of a copyrighted book (such publisher owning the copyright) retains the title to the copies which he has the exclusive right to vend by virtue of the copyright, he can impose restrictions upon the manner in which and the persons to whom the copies can be sold. If agents or licensees, intrusted with the possession of such books, not having title, violate their instructions and sell to a person who has knowledge of the restricted power, such sale of such copyrighted book is an infringement and may be restrained. This right results from the fact that the owner of the copyright and copyrighted book has not parted with the title to the book or to the copyright. The right to restrain the sale is gone, however, when the owner of the copyright and of the copy or copies in question parts with his title to such copy or copies and confers an absolute title on the purchaser, even if such sale be accompanied with an agreement for a restricted use or for a sale at a fixed price. We come, then, in these cases, to the question whether the complainants in either case retained title to the books, or any of them, that passed to the possession of the defendants and which they have been and are engaged in selling. It seems clear that they did not. They conferred no conditional or defeasible title, but an absolute title. Some books the defendants purchased direct of the complainants at retail and paid the full retail price. They sold same at retail at a loss. This they had the right to do. They were the absolute owners. The others were purchased of dealers who had purchased of the complainants and paid the full price demanded. There was no notice on each book, and it does not appear that these dealers had seen the catalogues, or that they had a bill of sale containing the notice. But, however this may be, the notice does. not retain the title, or restrict or limit the title conveyed. If so, the complainants could have replevied the books when they found they were being sold in violation of instructions given their licensees intrusted with the books. It may be, and it may not be, that the dealers from whom the defendants took title knew of the conditions of the notice when they purchased of the complainants. If they did, they impliedly agreed that in selling the books which they then purchased of complainants they would maintain prices. If so, the relation was contractual, and the remedy of complainants. is for a breach of that contract, if they can find the person or firm who violated it. The notice is not a license agreement, as in the Neostyle Case (recently decided by this court) 138 Fed. 110, and others there cited. Cortelyou et al. v. Charles Eneu Johnson Co. (C. C.) 138 Fed. 110. Reference is made to the opinion of this court in the Bobbs-Merrill Case for a full statement of the law. In this case the notice does not purport to restrict title, or create an agency, or establish a license agreement. There is no evidence that will justify a finding that defendants have unlawfully or improperly induced any person to violate their contract, if any, with complainants. In each suit the defendants are entitled to a decree dismissing the complaint, with costs. COMPUTING SCALE CO. v. MOORE et al. (Circuit Court, W. D. Virginia. July 17, 1905.) 1. PLEADING-VERIFICATION OF PLEAS IN EQUITY. Under equity rule 31, a joint plea should ordinarily be verified by all of the defendants in whose behalf it is filed. [Ed. Note.-For cases in point, see vol. 19, Cent. Dig. Equity, §§ 621, 623.] 2. SAME--WAIVER. Setting a plea down for argument is a waiver of objections for want of proper verification. [Ed. Note.-For cases in point, see vol. 19, Cent. Dig. Equity, § 672.] 3. SAME. When a plea in equity is not properly verified, complainant should disregard the plea and take decree pro confesso. 4. SAME-PLEA IN ABATEMENT. A plea in abatement must give opponent a "better writ." [Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Pleading, § 227.] 5. SAME. A plea in equity must not be uncertain or evasive. It must not tender an issue on an immaterial allegation in the bill. [Ed. Note.-For cases in point, see vol. 19, Cent. Dig. Equity, §§ 400, 403.] (Syllabus by the Court.) In Equity. Church & Church and H. C. Gilmer, for complainant. MCDOWELL, District Judge. Slight reference only need be made to the first bill, exhibited against the Pulaski Grocery Company, alleged to be a corporation, or to the plea thereto, or to the decree entered March 17, 1905. That decree was signed as an agreed decree, and it does not represent a determination by me of any question. The decree above mentioned allowed an amended bill to be filed, and required complainant to pay the costs "accrued to this date." The costs taxed by the clerk do not include an attorney's fee, and a motion has been made that the taxation be corrected. Regardless of what might be proper under other circumstances, I am of opinion to deny this motion. The plea is incomplete and evasive. In whose behalf it was filed, does not appear. It purports to be the plea of the Pulaski Grocery Company, and consists of nothing but a denial of the existence of a corporation of that name. Information which should have been furnished was withheld, with the purpose apparently of delaying the complainant. Under these circumstances, I do not perceive the propriety of allowing to the person or firm filing the plea the taxable attorney fee. The amended bill, which may, and I think should be, treated as an original bill, is exhibited against Roland R. Moore, Jr., and eight other individuals, who are alleged to be partners doing business under the firm name of the Pulaski Grocery Company, for infringement of patent rights. This bill was filed March 25, 1905; process, returnable to May rules, was executed March 31st on each of the defendants; and at May rules there was filed a plea. This paper is signed and certified by counsel, purports to be the plea of all the defendants, but is verified by only one of them. It reads as follows: "In the United States Circuit Court for the Western District of Virginia. "To the Honorable Judges of said Court: "Roland R. Moore, Jr., Ballard P. Miller, King E. Harman, Geo. H. Miller, Addison L. Jordan, James W. Walker, James R. K. Bell, James W. Miller, and Emmett F. Miller, Copartners Doing Business under the Firm Name and Style of the Pulaski Grocery Company, Defendants, Ads. The Computing Scale Company, Complainants. "The Plea of Defendants to the Bill in Equity Exhibited Against Them in this Court by the Said Complainant. In Chancery. "Defendants, by protestation-not confessing or acknowledging all or any part of the matters and things in said bill contained to be true in any wise as set forth-for plea nevertheless say that there was not at the time of the institution of said suit, that there is not now, and that there never was any such a copartnership as is set out above, and as is alleged in the said bill, and this defendants are ready to verify: Wherefore defendants plead to said bill and to the jurisdiction of this court, and pray the judgment of the court whether defendants should be compelled to make further or other answer to said bill, and pray to be hence dismissed, with their reasonable costs in this behalf most wrongfully expended. Wysor & Gardner, P. D. "State of Virginia, County of Pulaski, to wit: Emmett Miller on his oath says that he is the same Emmett Miller on whom process in the suit set out in the foregoing plea was served, and that the allegation of the said plea is true; and affiant further says that at the time of the institution of the said suit there was not, that there is not now, and that there never was any such copartnership as Roland R. Moore, Jr., Ballard P. Miller, King E. Harman, Geo. H. Miller, Addison L. Jordan, James W. Walker, James R. K. Bell, James W. Miller, and Emmett Miller, doing business under the firm name and style of the Pulaski Grocery Company at Pulaski City, Pulaski county, Virginia, and that said plea is not interposed for delay. E. F. Miller. "Subscribed and sworn to before me by the said Emmett Miller in the said county of Pulaski, this the 29 day of April 1905. J. F. Wysor, "Notary Public for Pulaski County, Virginia." Counsel for both sides appeared in chambers on the 14th of July to argue the sufficiency of this plea. Upon inquiry in the clerk's office, it appeared that there had been no rule entered in the order book setting the plea down for argument. But it does appear that on May 22d counsel for complainant wrote to the clerk to set the plea down for argument. The evident intent was that the order setting the plea down for argument should be entered at June rules. Consequently, even if the appearance here of counsel for defendants does not waive the informality, the absence of the entry in the order book is a mere misprision by the clerk, and one which has not prejudiced the defendants. As reasonable notice in pais of the date for the hearing was received by counsel for defendants, and as counsel appeared, there is, I think, no doubt as to the propriety of now making the proper order. Equity rule 3; 1 Bates, Fed. Eq. Pr. §§ 27-29. Counsel for complainant, having reached the conclusion that the plea can be treated only as the plea of the defendant Emmett Miller, on July 14th (not a rule day), but before argument, directed the clerk to enter the decree pro confesso against the remaining defend ants. Whether or not the plea here is sufficiently verified is a question. on which I have found very little authority. Equity rule 31 applies in terms to cases of a single defendant, and to cases where several defendants file separate pleas. I am inclined to think that under this rule a joint plea should ordinarily be verified by all of the defendants in whose behalf it is filed. When it is unduly expensive or inconvenient, or when it is impracticable, to procure the verification of all the defendants, and such fact is made to appear, I think there is no doubt as to the power of the court to allow a joint plea to be verified by less than all of the defendants. 1 Dan. Ch. Pr. (4th Am. Ed.) pp. 688, 689; 2 Dan. Ch. Pr. (4th Am. Ed.) 1822. There are also authorities to the effect that where the defendants are united in interest a joint pleading in behalf of such defendants need be verified by only one of them. Re Simmons, Fed. Cas. No. 12,864; 22 Ency. Pl. & Pr. 1034. See, also, Marion Co. v. Cummer, 60 Fed. 873, 878, 9 C. C. A. 279, which, however, has a very doubtful bearing on the point in hand. In the case at bar no extraordinary circumstance is made to appear, excusing verification by all of the defendants; and, as the plea (in so far as any certainty can be ascribed to it) may have been intended to deny that any of the defendants are members of the alleged partnership, or to deny that |