« ForrigeFortsett »
pending the appeal heretofore granted in this case, and that, in pursuance thereof, and in obedience to the statutes in that behalf regulating the supersedeas of proceedings pending an appeal, the execution of said decree be, and it is hereby, stayed, as it has been heretofore stayed since the said appeal was taken, the property remaining in the hands of the receiver, as heretofore; the original bond not to be affected in any way by the allowance of the new bond, but to stand as if this order had never been made.
To all of which the plaintiffs except, and ask that their exception be entered of record, and that the affidavits used upon both sides upon the hearing of these motions be filed as a part of the record, and taken as such to all intents and purposes as if they were incorporated in a bill of exceptions, which, in that respect, this order shall be taken to be, which is granted, and it is done accordingly. And thereupon the plaintiffs pray an appeal from this order, and from that of April 26, A. D. 1886, which is allowed; and their bond for $250, conditioned as appeal-bonds are required by law to be, with T. B. Edgington as surety therein, executed and filed this day, is accepted and approved by the court, the defendants in open court waiving all other citation and notice; the affidavits so used upon the hearing of these motions, and so as above made a part of the record, and as though embraced in a bill of exceptions for the purposes of this appeal, being those of C. W. Frazer and D. H. Poston, dated June 22, A. D. 1886, and of T. B. Edgington, dated June 28, A. D. 1886, and of W. B. Weisiger, dated June 29, A. D. 1886; the same being properly filed, and entitled in this cause.
NOTE BY JUDGE HAMMOND.
AMENDMENT OF THE BOND. Rafael v. Verelst, 2 W. BI. 1067; S. C. Cowp. 425. There were two defendants, with verdict against one and in favor of the other. Writ of error joined both, as did the bail in error, which was by recognizance. Motion, in the appellate court, to amend the writ, granted. Same day fi. fa. issued and levied, although plaintiff in error offered to alter the recognizance; motion in court below to quash fi. fa., and to amend the recognizance, granted; and bail in error entered into a new recognizance. In Justice v. Mersey Steel Co., 1 C. P. Div. 575, the old practice of giving bail in error on appeal to house of lords being still in force, the defendants in error, not knowing that, put in no bail; fi. fa. issued; application to appellate court to extend time and stay execution pending appeal. Held, application should be made to the court below.
Attorney General v. Swansea, etc., Co., 9 Ch. Div. 46. Practice now in England that in equity cases application to stay proceedings for any cause pending appeal should be made by to the court below in the first instance, and, if refused, then to appellate court by motion by way of the appeal." But see Wilson v. Church, 11 Ch. Div. 576; S. C. 12 Ch. Div. 454.
That a bail-bond could always have been amended, see 1 Bac. Abr. 567, tit. "Bail in Civil Cases," D4; Hampton v. Courtney, Cro. Jac. 272; Anderson v. Noah, 1 Bos. & P. 31, and numerous other common-law authorities.
In the chancery practice of England there was no difficulty; for, if the stay of proceedings should be granted below, of course the terms as to security bonds, etc., were all in the control of that court, but if by the house of lords, then, of course, in the control of that court; and, in both, the proceedings were subject to amendment as liberally as proceedings in chancery always were, but the application had to be made to the court in which the stay had been obtained. The only difficulty in our practice is in determining to which court the bond belongs, or in which the proceedings for stay may be said to be taken; for, unlike a writ of error at law, the appeal is granted below, while the bond is taken below in both; and in neither is the supersedeas directly and expressly ordered, as it always is in chancery in England, but comes by an implication from the statute, addressed alike to both the appellate court and the court below. 2 Daniell, Ch. Pr. (1st Ed.) 675; 3 Daniell, Ch. Pr. 105, 109, 134, 136, 140, and 97-150 generally; 2 Daniell, Ch. Pr. (3d Ed.) 1467.
In Arnold v. Frost, 9 Ben. 267, BLATCHFORD, J., held that an appeal-bond was so much a part of the suit in which it is given that an action on it might be maintained in the same court where given, as ancillary to the original suit, on a question of jurisdiction.
In Tipton v. Cordova, 1 N. M. 383, an appeal-bond was held to be "process" under the internal revenue act, and as such required a stamp.
In Bentley v. Jones, 8 Or. 47, it was held that the appeal-bond was not properly a
part of the transcript in the appellate court on an appeal from the judgment made
In Martin v. Hunter's Lessee, 1 Wheat. 304, 361, it was said: "But there is nothing in
In Irwin v. Bellefontaine Bank, 6 Ohio St. 81, it was held, under a statute almost
In Williams v. McConico, 25 Ala. 538, the bond appeared to have been approved after
In Dobbins v. Dollarhide, 15 Cal. 374, FIELD, C. J., held that, if the appeal-bond do
In Schenck v. Conover, 13 N. J. Eq. 31, it it distinctly stated that, outside of a rule of
Abundant authority could be cited to this point, but care should be taken not to abro-
When, therefore, the statute invests the court of original cognizance with the power
And, finally, I think section 954 of the Revised Statutes gives the party a right to
JACKSON V. WALKIE.
(Circuit Court, N. D. Illinois. November 8, 1886.)
COPYRIGHT NOTICE PRINTED IN BOOK-MUST STRICTLY COMPLY WITH STATUTE
The only notice of copyright given in a printed book was the following,
In Equity. Bill alleging infringement of copyright, and praying
H. Harrison, for complainant.
Dyaenforth & Dyaenforth, for defendant.
BLODGETT, J. The bill in this case alleges that complainant is the
The book in question is referred to in the bill, and made a part
Section 1 of the act of June 18, 1874, (18 U. S. St. at Large, 78,)
"No person shall maintain an action for the infringement of his copyright
of congress, in the year, by A. B., in the office of the librarian of con-
It will be seen that the complainant has not adopted either of the
office of the librarian of congress, at Washington," which are certainly a part of the notice. Without discussing the question as to the natural rights of authors in their literary productions, and whether they have any such rights in this country aside from our copyright laws, it is enough to say that the bill in this case shows that complainants' work has been published and put in circulation; that he has taken no means to protect the same except by the steps shown in his bill to obtain and secure a copyright, and, since the decision of the supreme court of the United States in Wheaton v. Peters, 8 Pet. 591, it has been the recognized rule in this class of cases that a party must bring himself strictly within the terms of the statute in regard to copyright in order to protect his property in case of publication. Argument seems hardly necessary to show that the defendant in this case has not complied with the statute in this regard. He has not given either of the forms of notice which the statute specifically requires him to give in order to be entitled to bring a suit for the protection of his alleged copyright. If an author or proprietor of a book or literary work can change the formula prescribed by the statute for his notice of copyright to the public, by omitting the words left out of this notice, he may omit other words, or adopt an entirely different form, or may change the location of the notice. He may think that the title-page, or the page immediately following, is not as good a place to print the notice as some other place in the book, and may therefore insist that he has a right to exercise his own judgment as to where he will print his notice, as well as the form in which it shall be printed. An author or proprietor of a work has no right to say, in effect, that any part of the prescribed notice is immaterial, and may be omitted. He takes his copyright under the law, only by giving the notice, and the entire notice, which the statute provides; and the statute expressly declares that he shall not maintain an action unless he has complied with this condition. Hence I think the bill fails to show a valid copyright in complainant, and the demurrer must be sustained, and the bill dismissed.
The only case cited by the complainant in support of his bill is Myers v. Callaghan, 10 Biss. 139; S. C. 5 Fed. Rep. 726. In that case the late learned circuit judge of this circuit held that where the notice of copyright stated the copyright to have been entered in 1866, when in fact it was not entered until 1867, did not defeat the copyright, because the only effect of the mistake as to date was to abridge. the life of the copyright one year, and no possible damage could accrue to the public, or to any other person, by reason of such mistake. That case is clearly distinguishable from this, and does not in any way, as it seems to me, control the questions here made.
UNITED STATES v. AMERICAN BELL TELEPHONE Co. and others.1 (Circuit Court, S. D. Ohio, E. D. November, 1886.)
1. WRIT AND PROCESS-MOTION TO QUASH SERVICE.
Where the invalidity, irregularity, or defect in the service of the writ appears upon the face of the return, a motion to quash the service, or abate the writ, is the proper mode of bringing the matter to the attention of the court; but, where the objection does not appear upon the face of the papers, the better rule of practice, where it is sought to question or dispute the facts stated therein, is to do so by plea in abatement, on which an issue may be regularly taken and tried.
2. PARTNERSHIP-SERVICE UPON NON-RESIDENT PARTNER.
While the interest of a non-resident partner in a partnership doing business in Ohio, in respect to such business, may be subject to the local jurisdiction, if the partnership is properly served in conformity with the statutes of the state, it is, however, well settled that the non-resident partner cannot be brought personally before even the local courts, or be subjected to judgment in personam, by service upon the resident partners.
3 WRIT AND PROCESS-EQUITY PRACTICE-SERVICE OF SUBPOENA.
In suits in equity, the federal courts are regulated, not by state statutes, but by the judiciary acts, and the rules of equity practice.
4. SAME-AMERICAN BELL TELEPHONE COMPANY.
The return of a subpoena which recited that the marshal had served the same upon the "American Bell Telephone Company (which is a corporation found and doing business in the Southern district of Ohio) by reading the same to A. D. Bullock, the president of the City and Suburban Telegraph Company, (the said City and Suburban Telegraph Company being an agent and partner of the said the American Bell Telephone Company, within said district,)" fails to show affirmatively the facts required to constitute a valid service, either under the judiciary acts, the rules of practice governing the court, or the statute of Ohio providing for service upon a foreign corporation having a “managing agent" in the state. No presumptions are to be indulged in favor of such a return, so as to give the court jurisdiction over a non-resident corporation. The return is also irregular, and open to the objection that the marshal did not confine himself to a statement of what he did in executing the subpoenas, but states conclusions of law and fact, apart from what was done. 5. SAME
SERVICE UPON FOREIGN CORPORATIONS.
In the absence of a voluntary appearance, three conditions must concur or co-exist in order to give the federal courts jurisdiction in personam over a corporation created without the territorial limits of the state in which the court is held, viz.: (1) It must appear, as a matter of fact, that the corporation is carrying on its business in such foreign state or district; (2) that such business is transacted or managed by some agent or officer appointed by and representing the corporation in such state; and (3) the existence of some local law making such corporation, or foreign corporations generally, amenable to suit there as a condition express or implied of doing business in the state. 6. SAME SECTION 739, REV. ST. U. S.-ACT OF CONGRESS, MARCH 3, 1875.
The judiciary acts (Rev. St. § 739) and act of March 3, 1875, providing that no civil suit or action shall be brought against any person outside of the district in which he resides or may be found at the time of the service of process, do not affect the general jurisdiction of this court, but merely confer a personal privilege or exemption upon the defendant, which can be waived, and is waived, by a foreign corporation, not only by a voluntary appearance to the suit, but by doing business in a state imposing the condition of liability to suit there by service of process on its agent.
7. SAME-SERVICE UPON FOREIGN CORPORATION.
It is not sufficient to give this court jurisdiction in personam over a foreign corporation that it has property rights, however extensive, within the district, or that it has pecuniary interests, however valuable, in business managed and conducted by others.
1Reported by J. C. Harper, Esq., of the Cincinnati bar.