680

\ ..

.FEDERA;LR;EPORTER,

vol. 43..

fore cqnsistent with & .belief that thli,l)avis or Duckw6rth motions had to be inferior to one or more of the spElcified·llIotions. It is nevertheless true that the master-could, if he had chosen, have made' R:sVecific finding unde:r; question 82 in regard to the .J ohnson. or any other motion. II) re$ponse to the plaintiff's requests, he had' already indicated his opinion in regard to the state of the evidence upon the productive capacity of the Mo:::con and Magnetic I think that he'did not intend to. state his conclusfons in. regard to the Johnson motion';although he m,ay think that Hs superiority is proved, and therefore I prefer that he should state his own conclusions from his patient study and a.ccurate knowledge, of the evidence, rather th/l.ll that they shoUld be spelled out from theanswer/3 to the defendants' requests.

SCRIBNER BLAcK:'

et al. v.

ij:ENRY

G., ALLEN Co.,

ALLEN

et al.v.

HENRY

G.

Co.

(Oircuit,Court, S. D. NeW

ct:oPtmGHT-FILING COPIIIS OJ!"

September 30, 1890.)

,.';!;

Rev·. St. U,S, §491i1S. allowing a person'seeking a copyright to deliver at the offioe of the librarian of the oQPY of the title of the b,o(,lk and the two copies 'of the: tOok which the statute require!l to be'dep9sited, and also permitting the depqsitof .lIuch oopiesin.,tibe mail, addressed to lIuch' librarian, does'notprevent both the delivery and mailing of the copies; and, where a complaint for infringement 3verlltbat both these sots were done, (lOIIlplainant will not be required to elect which averment he will undertake to prove at the trial, and to abandon the other. Distinguishing Falk,v. Howell. 37 ;Fed. Rep. 20'J.
"t" '-,'

1':'.

.

..

-

,

J'

Motion to compel complainants to amend bill. 4,2 'fed: Rep. 618. ' Rowland Cox, for complainants. James A. Whitney, for·defendant.
LACOMBE,

in Equity·. On billfOf injunction. '

For

report, see

tem. is the deposit in the proper government office of a printed copy of
th!'l title, and also of two copies of the book or other article for which copyrightls. sought. It is made the duty of the person seeking it copyright to see to it that such deposits lire made.' The statute allows him to "deliver [such title and COpiell] at the office of the librarian of congress." 1t also nllowshim "to deposit [such title and copies] in the mail, addressed to the librarian of congress." One or other of these must be done, but there is nothing in the statute to prevent the author or proprietor from doing both. Section 4956. The bill of complainll.nts allege!! that intl1is case both were done. Defendant insists that tJ"lis fillsertion is so "improbable" and "incredible" that it may be assumedto bl'l false. Such a proposition is clearly unsound.' One, who MJ{ious,tobe in a position to prove,at anytiine,compliance with the

Circuit Judge.

feature

at the

copyright sys-

"
THE CALEDONIA.

681

st!ltute might very well employ one person to deposit two copies in Washington, and another to mail two copies in New York, thus securing two independent witnesses to the fact of such compliance. It must be assumed, then, that both steps were taken in this case. the defendant's motion now is that"Complainants be directed to so amend their bill of complaint that it shall clearly and distinctly appeal' whether complainants allege that the title mailed of the alleged copyright work was delivered to a postmaster, to to the librarian of congress, or whether complainants allege that title waS delivered at the office of the librarian of congress, and that nil reference to the net which is not so alleged as the basis .of complainllntB' copyright be stricken from the said bill of complaint; and that the cOllrt order and direct iJllike manner concerning the allegations regarding the ctelivery to a postmaster Cor mailing, 01', as the case. may he, the delivery at the office of tf1&librarian of cong'ress,of the two copies," etc.

'Inasmuch as it now clearly and distinctly appears on the face of th0 compIainttha.t'bothlicts were done, and that neither was not done, the particulatrelief prayed for must be denied. The motion, however, may treated as' 'practically one to require the complainants to elect which a'vermenUhey will undertake to prove on the trial,. and to com pel-them to abando'6 This should not be required They have done what the stat).lte allows them to do, and aver that, they have done SQ. To deprive them at this stage of the right to make proof thereof on the trial would be unfair. If they should now elect to prove the mailing, their witness fact might die before the trial, andthey might thus fail to Elstablish their case, although still able, if their pleading permitted it, to lllakeptoof9fthe deposit. And the converse is equally true. The tionbe;tlfeen thisclj.se and Falk v.Howell, 37 Rep. 202, citedqp the I\rgument, is that in the latter case thecolliplaintin sqbstance averrilcl that one act was done and one was not done, and at the same time. failed to 'indicate which was the one that was done, and on: the doing ohvhi(jh ,alql1e thecOlriplainant relied. Itwas therefore ailibiguous, tendered no issue·. The bill now before the court is unambiguous, and distinctly issues. The motion is denied. Five da)'s after order granted deftmdant to plead, answer, or demur·

.THE CALEDONIA.,

(Oircuit Oourt. :p. Massachusetts. October 1, 1890.)
1. SHIPPING-BILL OF LA.DING.

Where a bill of lading is given by the ship-owner and accepted by the shippsI' without objection, a prior agreement for the carriage is not a final and definite statement of aU the terms of the agreement between the parties, and the bill QUading is the real contract by which the mutual obligations of the parties is to be'governed. Unless.otqeryvise expressly stipulated, there is an absolute warranty on .tbe part. of the ship-owner that the ship is or shall be seaworthy at the time of.beginning her voyag-e, and such warranty is not dEleted by an exception of damages from

2,

S,UIE-W ARJU.NTT OF SEA.WOR'1'HINESll,