TROW CITY ·DIRECTORY CO. 11. CURTIN.
829'
TROW CITY DIRECTORY CO. 11. CURTIN.
8. D. New York. December 1,1888.)
1.
COPYRIGHT-ACTION FOR INFRINGEMENT-PLEADING.
A bill for infringinga copyright, which fails to aver that plaintiff delivered or mailed to the librarian of congress a printed copy of the title of the copy· right book. that within 10 days after its publication he delivered or mailed to such librarian two copies of the book, and that he inserted in each copy of the book published, on the title-page or page following. the words. "Entered according to act of congress. in the year - - , by A. B., in the office of the librarian of congress. at Washington," is fatally defective.
2.
SAME.
8.
An averment that" the copyright was taken out by [plaintiff] previous tothe publication thereof. in full accordance with the requirements of the laws of the United States, "does not tender an issue of fact, but states a legal con· elusion, and is insufficient. A special demurrer to the parts of the hill which ask a court of equity to enforce penalties and a forfeiture, and for a discovery and delivery up to be destroyed of defendant's books. will be sustained.
SAME-SPECIAL DEMURRER;.....EQUITY-PENALTms AND FORFEITURES-ENFORCEMENT.
In Equity. On demurrer to bill. Bill by the Trow City Directory Company against Hugh A. Curtin for the infringement of complainant's copyright. Rev. St. U. S. § 4956, referred to in the opinion, provides that"No person shall be entitled to a copyright unless he shaH, before pUblication, deliver at theoftice of the librarian of congress, or deposit in the mail, addressed to the librarian of congress at Washington, District of Columbia, a printed copy of the title of the book * * * for whi'ch he desires a copyright, nor uoless he shall also, within teo days from the publication thereof. deliyer at the office:of the librarian of congress, or deposit in the mail addressed to the librarian of congress, at Washington, District of Columbia, two copies of such copyright book." Section 4962 provides that"No one shall maintain an action for the infringement of his copyright unless he shall give notice thereof by inserting in the several copies of every edition published, on the title-page or the page immediately following, * * '" the following words: · Entered according to act of congress, in the year - - - , by A. B., in the office of the librarian of congress. at Washington.'" H. Apl'ington, for complainant. E. N. Tafft, for defendant. WALLACE, J. The demurrer to thc complainant's bill is well taken, and must be sustained as to each ground assigned. The bill of complaint is defective in failing to allege the perfonnance of the acts required by sections 4956, 4962, Rev. St. U. S., which are essential, and conditions precedent to the title of the proprietor of a copyright. Wheaton v.Peter8, 8 Pet. 591; JoUie v. Jaques, 1 Blatchf. 618; Parkinson v. La8eUe, 3 Sawy. 330; Music Co. v. Paper Co., 19 Fed. Rep. 758. The allegation that" the copyright was taken out by the said Trow City Company,
rre-
830 vious to the publication thereof, in full accordance with the requirements of the laws of the United States, ".is not sufficient. It does not tender any issue of fact, but is the statement of a legal conclusion. Lipe v. Becker, 1 Denio, 568;. Frary v. Dakin, 7.Johns. 78. While it is not necessary or proper to state what is merely matter of evidence, the substantive issuable facts upon which the pleadel"scause of action depends must be alleged. 'The special demurrer to the parts of the billwhich ask a court of equity to enforce penalties and a forfeiture, and seek for a discovery, surrender, and deli very up to be canceled and destroyed of the copies of the defendan t's directory, is supported by .the au thority of Stevena v. Gladding, 17 How. 447.
THE SYRACUSE. Gor..nsMITH v. THE SYRACUSE. ((Jircuit (Jourt, S.1J.
New
York.
November 14,1888.)
TOWAGE-NEGLIGENCE-PROCEEDINGS IN REM.
Where a canal·boat. while in tow by certain tugs, preparatory to making fast to a steamer which is to convey the tow to its destination. is injured by the negligence of the tugs. proceedings in rem cannot be maintained therefor against the steamer, though owned by the same company owning the tugs.
2. WITNESS--'FEES-MILEAGE-IN FEDERAL COURTS.
Witness fees in the federal courts are taxable for travel not eltceeding 100 miles. unless the distance be wholly within the district. though the witness attend the trial v.oluntarily, at the request of one of the parties.
Proceedings in rem by libelant, Goldsmith, against the steam-boat Syracuse for damage done to libelant's canal-boat by certain other tugs while in charge of a tow consisting of libelant's boat and others, prepar.atory to and before making fast to the Syracuse, which was to convey the tow to New York. The contract for towage was with the Schuyler Towing Company, by whom the tugs and the Syracuse were owned, but it did notspeci(y the particular boat that should do the towing. The libel was disltlissed by the district court, and libelant appeals. Hyland & Zabriskie, for appellant. Owen & Gray, for claimant. WALLACE, J. If the towage contract in this case had been made with the master of the Syracuse, or if the suit were in per80nam against her owner, the question whether the injuries received by the tow were in consequence of what was done before or after the Syracuse made fast to the tow would be immaterial. But as this is a suit in rem against the steam-boat it can only be sustained by evidence of negligence or breach of obligation on ber part with reference to the transaction. By the contract with the libelant the Schuyler Towing Company undertook to tow
In Admiralty. Libel for damages. On appeal from district court.
