whereas the acts set forth in the state court complaint were alleged to have been committed at that time. If the acts alleged in 1896 constitute a certain mode of action, and those now set forth as having been committed later constitute the same mode of action, it seems clear that a judgment sanctioning as lawful the methods adopted in 1896 would preclude a complaint against similar methods. in 1904, as between the same parties and their privies. Otherwise there would be no end to litigation, so long as the respective parties retain their cash and courage. In some ways, however, it strikes me the case in the bill is not the case of the complaint. An analysis of both, pointing out the distinctions, would make too long. a story. As we run along, it may be well to allude incidentally to the more accentuated ones.

The state court found that restraint of trade to be unlawful must either tend to enhance the price or to narrow the territory. No fault could attach as to price, because the goods were so situated as to be the subjects of an inherent monopoly, and as to territorial restriction, no facts were alleged from which such a thing could be inferred.

It is not clear that in the present bill the facts have been so changed as to avoid the argument of the state court on the first point, but in the matter of territorial restriction, the case now set up appears to be radically different. Then again, the averments about the tripartite plan, which is a joint agreement of wholesalers, manufacturers, and retailers, extending the restriction of prices so that it includes the consumer; and again, the exhaustive exploitation of the judicial powers conferred upon the committee on proprietary goods as a part of the unlawful plan; and again, the facts tending. to show that manufacturers are hindered and restrained from dealing with complainant by reason of the rebate plan, but that they would so deal if it were not for the plan; and again, the facts showing that the committee on proprietary goods have charged the complainant with first joining the rebate plan, and then failing to live up to it, thus smirching its business character and injuring its trade; and the threats to break up the business of any one who shall presume to sell goods to the complainant; and the threats that after breaking up complainant's business, no goods will be sold to complainant's customers, putting them on cut-off lists and black. lists for that purpose, thereby depriving the complainant of many of its present customers. As I have said, for these differences, and for many others which will appear after careful examination, the case made up in the bill is not, as I view it, the case made up in the complaint.

. Let the plea be overruled, with costs.

BANKS LAW PUB. CO. v. LAWYERS' CO-OPERATIVE PUB. CO.

(Circuit Court, S. D. New York. June 16, 1905.)

1. COPYRIGHTS-INFRINGEMENT-PLEADING

SUPPLEMENTAL BILL.

In a suit for infringement of copyrights of a number of books the complainant may properly be allowed by a supplemental bill to set up further infringements of other books of the same series, occurring subsequent to the filing of the original bill, the parties being the same, and the subjectmatter of the same general character, which may appropriately be determined in the same suit.

2. SAME.

Where a bill for infringement of copyright sufficiently alleges title in complainant to the cause of action by assignment, a supplemental bill otherwise good is not invalid because it alleges a further assignment in the nature of a confirmation or ratification of complainant's title.

In Equity. Suit for infringement of copyright. On demurrer to supplemental bill.

J. Adriance Bush, Wm. Hepburn Russell, and Frank L. Crawford, for complainant.

Frederick F. Church and Frank F. Reed, for defendant.

HAZEL, District Judge. This is a bill to enjoin infringement of a series of books, 24 in number, for which the complainant claims copyrights. The infringing acts consist of imitating complainant's publication of the Official Edition of Reports of the United States Supreme Court, in that the paging is reproduced, and the general arrangement of the reported decisions, together with complainant's system of numbering the volumes, is simulated. Since filing the original bill, and after taking evidence showing the nature and extent of the infringement and complainant's legal title to the copyrights, two additional books of decisions have been published by the defendant. Such later publications are claimed by complainant in the supplemental bill to infringe eight additional volumes of complainant's publication and copyrights. The supplemental bill also avers a so-called "confirmatory assignment" to pass to the complainant the legal title of Banks & Bros., a copartnership, to the certain copyrights of the books in question. The defendant demurs to the supplemental bill on the grounds that separate and distinct causes of action are alleged, and, further, that the allegation of a confirming assignment is inconsistent with and contradictory of the allegation of title as specified in the original bill. Defendant contends that the complainant cannot, during the pendency of the suit, cure a bad or defective bill; and also that the later charges of infringement are distinct and independent wrongs, which may not be brought into the suit by supplemental bill. The proposition that the original bill was bad or defective, however, is not strictly in question. The later infringements were not covered by the original bill, which properly alleges a cause of action of earlier wrongful acts; and it is elementary that any matter which has happened since the filing of the bill may be brought in by supplemental bill. Story on Equity Pleading (10th Ed.) § 330. In Foster's Federal Practice, § 187, the rule is thus stated:

"A supplemental bill, according to Lord Redesdale, is merely an addition to the original bill. * * When an event happens subsequently to the filing of an original bill, which gives a new interest in the matter in dispute to any person, whether or not already a party, without depriving all of the original plaintiffs suing in their own right of their interest, the defect arising from this event may be supplied by a supplemental bill."

It has been held in this circuit that facts accruing after the filing of the original bill, showing, for instance, infringement of a patented device by the subsequently modified structure, where there was infringement before suit was brought, did not warrant filing a supplemental bill. Westinghouse Air Brake Co. v. Christensen Engineering Co. (C. C.) 121 Fed. 558; Id., 126 Fed. 764. In such cases the scope of the original bill is deemed broad enough to include later charges of infringement, and, if the evidence under the original bill establishes the wrongful acts, the new infringing acts are provable upon the accounting, and proper relief may be afforded. The cases cited, however, do not strictly apply here, as the wrongful acts complained of in the supplemental bill not only subsequently occurred, but relate to separate infringements of separate copyrights of the books in question. In order to prove subsequent acts, assuming the original bill alleges a meritorious. cause of action against the defendant, it was necessary for complainant to file a supplemental bill. The law abhors a multiplicity of suits; and when the parties are the same, and the subject-matter is of the same general character, courts will be slow to refuse leave to aver in an amended or supplemental bill additional actionable facts which will assist in a final disposition of the grievances which are the subject of the litigation. Although the allegations of later infringements are separate and distinct from earlier assertions of infringement, yet they are not so inseparable, when alleged in a supplemental bill, as to entirely preclude a determination in the pending action. In Mellor v. Smither, 114 Fed. 116, 52 C. C. A. 64, the rule where new matter arising subsequent to the filing of the original bill is introduced by supplemental bill is stated as follows:

**

"If he had no cause of action then, he cannot, by amendment or supplemental bill, introduce a cause of action that accrued thereafter, even though it arose out of the same transaction that was the subject of the original bill. * But where a cause of action exists at the filing of the bill which is defectively presented by the bill, the defects may be remedied by amendment, and matters occurring after the filing of the bill may be presented by supplemental bill. Where material facts have occurred subsequent to the beginning of the suit, the court may give the plaintiff leave to file a supplemental bill, and where such leave is given the court will permit other matters to be introduced into the supplemental bill which might have been incorporated in the original bill by way of amendment. Stafford v. Howlett, 1 Paige, 200."

The quotation correctly states, I think, the practice covering the purpose of a supplemental bill. For this reason the first ground of demurrer is not sustained.

As already intimated, the supplemental bill avers an assignment, since the action was instituted, from two of the former owners of certain copyrights which are the subject of the suit. The original bill merely avers the assignment to Banks & Bros., No. 2, to one

David Banks, acting in behalf of the complainant, and the assignment thereafter by him to the complainant. These are not thought to be such inconsistent or contradictory averments as to invalidate the supplemental bill. The later assignments evidently are in the nature of a ratification of the earlier acts, and, as the allegation of title was concededly well pleaded, would seem to merely affect the weight of the evidence of the title asserted in the original bill.

Demurrer is overruled, with costs.

FREUND v. S. H. GREENE & SONS CORPORATION.

(Circuit Court, S. D. New York. May 16, 1905.)

PLEADING-VARIANCE-WAIVER OF OBJECTION.

A verdict will not be set aside because of a variance, where the court's attention was not called to it during the trial either by an objection to the evidence, a motion to strike it out, or a request for instruction, but the plaintiff will be permitted to amend the complaint to conform to the facts proved.

[Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 1438-1441.]

At Law. On motion to set aside verdict.

Hiram R. Steele, for plaintiff.

Lewis A. Freedman, for defendant.

TOWNSEND, Circuit Judge. Defendant's motion is predicated chiefly on the ground that the evidence on which the jury rendered its verdict in favor of plaintiff was inadmissible under the pleadings, except to the extent of proving a claim of $400. The complaint claimed damages of $50,000 for breach of contract, and alleged, inter alia, an indebtedness to plaintiff of $10,800 for commissions due for work received from him by defendant. No objection was made at the trial to the reception of this evidence on the ground that it was not supported by the pleadings, no motion was made to strike it out by reason of insufficient pleading, no request was made to the court to charge the jury that it should be disregarded because of variance or departure, and no exception was made to the charge on any such ground. If the claim now made had been brought to the attention of the court in any way, it might have been corrected on the trial. In these circumstances, it is thought that the evidence was sufficient to support the verdict, and that an amendment should be allowed conforming the pleadings to the facts proved, in accordance with the rules established in the federal courts and in the courts of the state of New York.

An order may be entered for such amendment.

MATTLAGE ▼. UNITED STATES.

(Circuit Court, S. D. New York. December 21, 1904.)

No. 3,624.

CUSTOMS DUTIES CLASSIFICATION-FISH-SMOKED HERRING.

Smoked herring, though salted before being smoked, are not dutiable as "herrings, pickled or salted," under Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 260, 30 Stat. 171 [U. S. Comp. St. 1901, p. 1651], being a commodity distinct therefrom both commercially and in common speech. [Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Customs Duties, 74.]

On Application for Review of a Decision of the Board of United States General Appraisers.

The decision under review is G. A. 5,726, T. D. 25,429, which affirmed the assessment of duty by the collector of customs at the port of New York on importations by Charles F. Mattlage & Co. The board's opinion reads as follows:

Fischer, General Appraiser. In these cases the merchandise consists of smoked herring imported in wooden packages, each containing less than a half barrel of fish. Duty was assessed thereon at the rate of 30 per cent., under the appropriate provision of paragraph 258, Tariff Act July 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 171 [U. S. Comp. St. 1901, p. 1650]. The importers claim them to be dutiable properly under paragraph 200, 30 Stat. 171 [U. S. Comp. St. 1901, p. 1651], as "herrings, pickled or salted," at one-half cent per pound, or under paragraph 261, at three-fourths cent per pound, or 14 cents per pound. In G. A. 4908, T. D. 22,969, the board held, following the court ruling in the cases of Meyer & Lange v. United States and Reiss & Brady v. United States (since reported in 124 Fed. 293), that smoked herrings, packed the same as those now in question, were dutiable at 30 per cent., under paragraph 258, or at three-fourths of one cent per pound under paragraph 261, according to which was the higher rate. This ruling would be conclusive against the protests but for the fact that in this instance counsel for the importers has urged a contention which was not made in the protest subject of G. A. 4,908, namely, that the provision for salted or pickled herrings in paragraph 260 covers smoked herrings, the latter not being provided for eo nomine in the tariff. The ground for this claim is that herrings are first salted before being smoked. It is noted that he does not set up any claim under paragraph 260 at one-fourth of a cent per pound, as fresh herrings, on the ground that they were fresh before they were either salted or smoked.

We are of opinion that the contention noted is untenable. Conceding that the herrings must be salted before they are smoked, salted herrings and smoked herrings are two distinct commodities in ordinary speech, and that they are so commercially is shown by the testimony of one of the importing firm and another witness. The former testified in part as follows: "Q. On an order to your house for pickled herrings, would you deliver smoked herring? A. No, sir. Q. On an order for salted or fresh, would you deliver smoked herring for either of those? A. No, sir. Q. An order for smoked herring would have to be in what language? A. Plain words-just simply 'smoked herring.' Q. What would you do upon an order for salted herring? A. Give them pickled herring." The importers' witness testified in part as follows: "Q. In your understanding as a merchant, are smoked herrings included or excluded from the group-from the class of salt fish? A. They are included in the class; but if a person sent me an order for salt herring I should want to know whether he meant pickled or smoked." The tariff acts of 1883, 1890, 1894, and 1897 all contain separate provisions for salted and pickled herring and for smoked fish, and the practice of customs officers in assessing such merchandise for duty has been in harmony with the common and commercial understanding; that is to say, smoked herring has been as