GOTTSBERGER v; ALDINE BOOK PUB. UNITED STATES
V.

CO.

381

DOUGLASS.

(District Oourt. B. D. South Oarolina. January, 1888.)
POST-OFFICE-POSTMASTERS-USE OF STAMPS BY.

On the trial of an indictment against a postmaster for the illegal use of postage stamps, held, under 1 Supp. Rev. St. U. S. c. 259, p. 359, relating to the postal service, that it is unlawful for a postmaster to make any disposition of stamps intrusted to him, except the sale of them at their face va) ue for cash to third persons.

Two Indictments against defendant, Edgar 1. Douglass, postmaster, for illegal use of postage stamps. L. F. Youmans, Dist. Atty., for the Government. E. W. Morse, for defendant; SIMONTON, J., (charging jury.) You are trying two distinct cases against the defendant, who was postmaster at Statesburg, in this state. One of these-the indictment-charges him with using in the purchase of merchandise, and in the payment of debts, postage stamps which had been intrusted to him as postmaster. The other-the information-charges him with including in four quarterly returns to the post-office department the stamps so used by him, reporting them as canceled stamps, with the fraudulent intent of increasing his compensation as postmaster. The cases are brought unde{' chapter 21:\9, Act Congo seventeenth June 1878, (1 Supp. Rev. St. U. S. 359.) The defendant, testifying on his own behalf, admitted that he had used stamps on several occasions in paying for merchandise, and remitting money, for the purpose of making change. He says that he did this not dreaming that it was wrong, and that in every instance he had put the money value of the stamps so used in the till of the post-office, in fact thus purchasing the. stamps from himself. The act of congress forbids any disposition by a postmaster of stamps intrusted to him except the sale of them at their face value for cash to third persons. He cannot use them in the purchase of goods or in payment of debts; nor can he purchase them from himself for any such purpose. By his own admission, therefore, he has violated the law, /l.nd if you believe himyou must find him guilty on the indictment.

GOTTBBERGER

V.

ALDINE BOOK PUB. Co.

V.

SAME

ESTES et ale

(Circuit Oourt, D. Ma88achu8etts. December 19, 1887.)
OOPYRIGHT-ABANDONMENT-PUBLICATION.

Evidence showing that plaintiff had sent a number of copies of a work to booksellers and private individuals, for examination, before acquiring a copyright, lind had in one instance accepted the purchase money, cOnstitutes a public&tionwithin Rev. St. U. S. 4956, which provides that no person shall be entitled to a copyright unless he shall, within ten days from the publication .thereof, <leliver two printed copies of the book to the librarian of con.gress. . . ,

3§2

.,'

In Equity. On bill for injunction. .Bills by William Gottsberger to restrainthe Aldine Book Publishing Company and Dana Estes et al. from printing and publishing a work upon which complainant alleged to have a copyright. T.W. Clarke, for complainant. S. J. Elder for defendants.
I

COLT,J. The plaintiff, in both these cases, seeks to restrain the defendants from printing and selling a work entitled "The Ebers Gallery." "Reclaims that he has a copyright upon the work,having deposited the title of the book in the office of the librarian of congress, at Washington, September 19, 1885, and two copies of the best edition on November 28, 1885. The main defense to the validity of the copyright is that there was a publication of the work, by sales thereof to several parties, prior to No'veh1'ber 18, 1885, and that, therefore, the plaintiff was not entitled to ,'any copyright under section 4956 of the Revised Statutes. A sale of the 'printed work constitutes a publication within the meaning of the statute, and it follows that if the defendants have proved such sale before November 18, 1885, the copyright must fail. The plaintiff admits, and his books show, that 23 copies of the work were sent to different parties prior to November 18,1885; in some cases, to booksellers; inothercases, 'to private individuals. His position is that the books were sent for examinati6fi'only, as shown by the letter or circular which accompanied the shipments. ' At the, hearing on the motion for a preliminary injunction, I expressed "a grave doubt whether the facts disclosed a sale of the work by the plaintiff to Estes & Lauriat. publishers and booksellers, in Boston, prior to November 18, 1885. But, on a more careful consideration, I am satisfied that a sale din take place prior to that date. The circumstances were these: ' On November 4th the plaintiff shipped to the firm two copies of Ebers' 'Gallery, sending them an invoice of the same, and stating in a letter of the same date that the were sent for their examination, and for the purpose or placing an order for 12 copies with the plain,tiff without delay. On November 6th, Estes & Lauriat replied that upon examination they,did not care to place an order for the work, but that they would accept the two copies sent on sale. In reply to this, the plaintiff the next day wrote directing Estes & Lauriat to return the two copies at once, and saying that he could not send them any copies on sale. In answer to this Estes & Lauriat wrote, under date of November 9th, as follows: "In reply to yours of th'e 7th would say we have returned to you the copy of Ebers' Gallery in full morocco, by express, carefully packed, and have kept . the copy in half Turkey morocco." ';'To this lettef'fheplaintiff made no reply. He allowed Estes & ,Lauriat to keep the book, and on December 15th foll,owing drew a draft upon them for the amount due for this book, and other books. The conduct of the plaintiff shows that he treated it as s. sale ofthe book to Estes & Lauriat, after the receipt of their last letter. He in no way re1

THE PULASKI.

383

pudiatedthe transllction, by letter or otherwise, but proceeded, after a. proper time, to collect the price of the work. Estes & Lauriat examined book, and finally told Gottsberger they would take one copy, which he let them have, and which they subsequently paid for. Under these circumstances, I think it must be held that the sale to Estes & La.uriat was on the receipt by the plaintiff of the letter of Novem· ber 9th, and on his acquiescence in the same and his failure to repudiate it. .In other casell, where books were sent, some nice questions pre.sent thetnselves' as to the actual date of sale. In the case of H. H. Shepard, Kansas City, Missouri, the book was shipped October 27th, and the remittance was sent from Kansas City, November 18th, and received November 23d. Of the 23 copies sent out before November 18th, it would seem that the plaintiff treated them as sold whenever the party to whom they were sent consented to purchase. The fact that the date of publication was advertised, in several papers, as December 1, 1SS5, is immaterial. The question is, when did an actual pUblication take place? The copyright law of the United States cannot be controlled by the publisher advertising not to publish the work before a certain date. . Ebers' Gallery is a collection of photographs illustrating the novels of George Ebers, and it contains extracts from the novels opposite the photographs. The plaintiff seeks to restrain thE' defendants from printing extracts from two of these novels, An Egyptian Princess, and The Emperor, on the ground that he owns the copyright in them. The evidence before me fails to prove a copyright of these books. . The billa should be dismissed, with costs, and it is so ordered.

THE

(DiBtrut

BBL·

PuLASKI.

GOUt't, B. D. Michigan. January 9,1888.)
GBA.IN

IN

AnMIBALTY-JUBISDICTION-M.4BITWE CoNTRACTS-SToRAGE 01'

VJC8.

.&\. vessel, at the close of navigation: upon the received on board .a clLrgoofwbeat,under an agreement to hold the same in storage during the w.inter.i a.nd. if. not d.isCha.rged by the shippers upon the opening of nav.iga. tion in to transport the same wherever Qrdered, for two and a quarter cents per bushel storage. and the current rates of freight foi'transportation. .Held, that the contract was not maritime, and the court of admiraltyha4 jurisdiction' of a suit brought for damages received during. the winter by improper storage. (B1/llabuB l11J Oourt.)

In Admiralty. On exceptions to libel. The libelll.verred that' on December 7, 1886, libelant on board the Pulaski, at the port of Detroit, about 24,000 bushels of wheat, to be held and stored on board said schooner until the opening of navigation in the following spring, unless sooner discharged by the shippers;

884

FEDERAL REPORTER.

and, if I)bt'discharged, to transport the wheat to Buffalo j or other port, for the consideratiQn of two and a quarter cents per bushel for proper storage during the winter,and the going freight for transportation to Buffalo,or 0ther port, after the opening of navigation. The libel further averred that, by reason of the hatches not being properly covered and protected,moisture gathered in the wheat, causing the saIPe to become heated, and, damaged to the amount of abouU700. Claiinant demurred, upon the ground that the cause of action was not within the jurisdiction of the court, and that there was no lien upon the schooner for such breach of contract. F. H. Oa:nfield, for libelant.' H. H. Swan, for claimant. BROWN, J. I am informed that contracts of this description have become quite common upon the lakes, the shipper thereby finding a convenient and cheap storage of his wheat upon the vessel,' and the latter a profitable employment during the idle season. If the storage were a mere incident to the transportation, as, fdr instance, if tbewheat were taken on board with the understanding that the vessel should sail as soon as a tug or consort should be procured, or as soon as the ice should leave the harbor; I should have no doubt that the vessel would be liable for any damagerece'ived by the cargo by reason of improper storage while awaiting departure. In such case, the storage being a mere incident of the transportation, the whole contract would be adjudged to be maritime, and a suit would lie in the admiralty for, any damage occasioned after the, cargo was received on board. But, in this case, the contract is primarily for storage, and the transportation is a mere contingancy, possible or probable, in the future. The wheat is received subject to the order of the shipper, who may demand a redelivery the next day; and, even if it were definitely understood that the wheat was to be transported upon the opening of navigation to a distant port, the fact that a separate price was charged for the storage during the winter would tend to show that, in fact, there were two separate contracts, one only of which was maritime. The fact that the warehouse is a ship, or is water-borne, is of no importance, since floating warehouses are not uncommon upon the rivers, and by no means unknown upon the seaboard. To be the subject of an admiralty lien for a breach of contract, the vessel must 'be, at the time, engaged in commerce and navigation, or in preparation therefor, (The Htmdriclc Hudson, 3 Ben. 419,) and the, service must be maritime in its nature, (A. Raft of Oypress Logs, 1 Flip. 543; Gurney v. Otoclcett, Abb. Adin. 490; The John T. Moore, 3 Woods, This case is really of the same nature as a claim for winter wharfage, passed upon in this court, and affirmed by the circuit court, in The Murphy Tugs, 28 Fed. Rep. 429. , exceptions must be sustained, and the libel dismisSed.

ST.

LOUIS, V. &

T. H. R.

CO. V.

T?£RRE

&

r. R.

CO.

385

ST. Lours, V. & T. H. R.Co.v. TERRE HAUTE & 1. R.Co.
(Oi1'cuit OOU1't, 8. D. Illinois. 1887.)
REMOVAL OF CAUSES-CITIZENSHIP-AcT ()F MARCH
0':

.'

8, 1887. Act of congress, March 8, 1887, after providing for the Jurisdiction of federal courts, reads: "No civil suit shall be brought before either of said courts, against any person, by any original process of [or] proceeding, in anyoth6l' district than that whereof he is an inhahitant;but, where the is only on the fact that the action is between citizens of differe'nt states, suits shall he brought only in the district of the'residence of either the plaintiff or defendant. "Held that, when the jurisdiction depends upon other than the citizenship of the parties, the defendant must be sued In the district of his domicile, but, when the jurisdiction depends upon citi-' zenship, the suit may be brought in the district in which either plaintiff or defendant resides.

On Demurrer. St. Louis, Vandalia & Terre Haute Railroad Company, complainant, sued the Terre Haute & Indianapolis RailroadCompaJlY, defendant, to set a!;lide a lease. Trwmbull j Robbim & TrumbuU and McDonald & Builer, for complainant;, George Hoadly, W. M. Ramsey, Greene & Humphrey, and John G. WiUiams, for defendant. Before GRESHAM: and ALLEN. J J. GRESHAM:, J., (Ar,LEN, J., concurring.) The complainant, an Illinois corporation, brings this suit against the defendant, an Indiapa, eorporation, in the circuit court of the United Statesfdr the Southern dis-: trict of Illinois, to set aside a lease executed by the complainant to the defendant of the former's line of railroad from East St. Louis to the,Indiana state line, on the ground that the lease was unautl,lOrized and void. The bill prays that' the lease be annulled; that the possession of the property be restored to the complainant, and its title to the same quieted; and for other relief. The defendant entered its appearance, and demurred to the bill for want of equity. Since the argp.ment of the demurrer, we have read the O,pinion of the court in County of Yuba v. Mining 00.,'32 Fed. Rep. 183. That was a suit brought by a county of the state of California, in one of the courts of that state, against two Nevada corporations. 'The"auit was removed from the state court to the circuit court of the United States, on the ap-. plication of one of the defendants; and the latter court held that 'the moval was unauthorized, on the ground that under section 1 of tIle act of March 3, 1887, the suit could not have been originally brought in . that court; and that under sectioq 2 of the same act the right ofrempval was limited to suits that might be so brought. If this is a correct interpretation of the first and second sections, it follows that the bill should be dismissed for want of jurisdiction; the defendanibeing an Indiana corporation, and sued outofthedistrict of its domicile. Section 1 of the act; after defining the jul'isdictioll of the coqrts, reads: v.33F.no.7-25

386
.. And no civil Stitt shall be brought before either of said courts against any person ,by)any original process of prooeeding [evidently meaning, · or prOceeding'] in any other district than that whereof he is an inhabitant; but, where the jurisdiction is founrJ,ed only Qn'thefact that the action is between citiZeM of different states, suit be brought only in the district of the residencs of either the plaintiff or thede,fendant."

qvoted,but J;lot would, if standing alone, limit the jurisdiction ,of the federal courts to suitBbrought against defendantsin tMdistrictsof.thllir domicile; but effect shOuld be giveQ to the undersoor,a language, if it is capable ofeonstruction, arid we think it is. While-it must be admitted that the language ofthe aot is awkward so,"":"'we think theJPeahing of. .two quoted <W}llSes is this: When the jurisdiction depl:lnds'llpon the existence of a federal question, or upon, grounds other than the citizenship of the parties, the defendant must be sued in the district of his domicile; but, when the jurisdiction depends upon the citizenship of the parties, the suit -maybe ,brought in ,the: ,district in which ,either the plaintiff or the defendant r-e$ides.This oonstru:ction is consistent with section 2, which provides that defendants who are sued out of the district in which they resi(1:e{m:ay ,rem:ove the 'suit from the state'court to the federal court,· when';'·ttnderllection l,it nlight have been originally brought in that court. If a defendant cannot be sued elsewhere than in the district, of his domicile, and the right of removal is denied both;,to resident plaintiffs and defendants, as it certainly is, then no suit can be removed at am' Itma.y be thatthejurlsdictionin this case could be sustained under section 8 ()f,theact of 1875, which is expressly continued-in force by seotion 5 oUho.,sctof1887. 'il::: ourduty:tothuB briefly state our reasons forgiving a oonstrrieaoin. to the act of 1887 not, in harmony with the opinion· oftbe leamedjudges,in County o! yubav. Mining

" ,. ..

COUNTY

:MJN. 0'0.

11.MARKEJll,

et al.

(Qirouit OQtwt. D.

December 15.1887.)

.' MkRc:iHl'l88t' .

broughqntbe United States courts against any person "in any other district tbantqat he is an inhabitant; but where the Jurisdiction is founded only'on the fact that the' action is between citizens of:different states, suit ,;shallbe bJ.1Ought only in the district of the residence of either the phiintitf or ,defen<Ja!1t,?: Section 2adopts thislimitation as defining the cases which may .. be reindved.Plaintiff. a resident corporation of Colorado, sued defendants, .. one of whom was a citizen of Minnesota and one ofWisconsin. in a Colorado COlJrt. and. defendants removed .tbe. case to tbe United. States court for the ?f ColO,l:ado. !lela, that it was pr?perly rl!m9Ved, as comingunrler the Drovlslonlldf the second clause of sectIon 1 of the aboye act. .

.." .. ' ... ., Actio! bongresB of March 8. 1887,' § 1, provides that; no civil suit shall be

bAi]sE6-DISTRIOT

IN

WHICH SUIT JUY

13ROUGJlT-AOT OJ'