264

FEDERAL. REPORTER,

vol. 48.

elthe.statute were complied with. Callaghan v. Myers, 1i28 U. S. 617, 9: Sup, Ct. Rep. 177. Section' 4959 provides that the proprietor of a photograph shall mail to the librarian or deposit with him two printed cbpies thereof "within ten days,after its publication." The certificate of the librarian shows that two of the photograph were deposited December G, 1888. They were mailed the day previous, December 5th. There is some testimony tendirig to show that a copy of photograph No. was seen by Miss Marlowe as early as November 5, 1888, and that ClJpies were sent to her on Sunday, November 25th of the same yenr. It is doubtful whether this 'testimony, in any view, is sufficient to establish a publication, but it i8too vague, shadowy, and uncertain to countervail the evidence of the complainant that publication did not take place till 'December5, 1888. Miss Marlowe is not sure that No. 94, was among the photographs sent her, and the other witness upon this subject, called by the 4efimdant; is title was filed with the librarian September 17th,and the copies were mailed to him on the day of publication, December5, 1888,-two months 'and eighteen days thereafter. No authority is' cited holding thiato be an ble d e l a y . . ' The,complainant testified that he arranged the pose and lighting of worked up the expression arid decided upon the photograph in tlie attitude; .but testimony of Miss Marlowe that he arranged the light, the background imd aU other details;. and finally posed her,wlwn taken in connection with the picture which certainly is artistic and unusually pleasingj is sufficient to sustain the copyright'within the au53,4 Sup. Ct. Rep. 279. That thority-'of &rony'8' Case, 111 U. the complainant was the author and proprietor of the photograph is ficientlyestablished. The complainant is entitled to a decree.

FISHER tl. SECRIST.

,(eircuit Oourt, N. D. lHi1i6'!8.November 16. 1891.)

An afII.davit in attachment Which states that defendant is' indebted to plaintift "in the sum Qf $24,000 damages and interest upon the COllenants In the deed" an, ,nexed thereto does notsu11lciently set forth "the and amount of the indebt, edness',h within the requirement of the Illinois attachment act; (1 Starr & C. St. p. 810,'§ 2,) when the action is commenced by prrecipe, and no declarationhns been filed,but spould state't4e facts relied on as breaches of the oovenants, and the damages sustalned'byeaohbreach. ' , 2. SAMB-DEBT FRAUDULENTLY CO:<TRACTED. Under section II, autho,izing an attachment when the debt sued for is fraudulently contracted, "provided the statements of the debtor, bis agent or attorney, which constitute the fraud,:shall'be reduced to writingjand his signature attacbed thereto by himself,agent, Qr attorney," an attachment cannot upon affidavits show'ing fraudulent statements in writing by the .debtor's agents, to whichtbe debtor's signature is not attached. . . 8. SAME;. . '. " Nor will an attachment issue upon an affidavit averring fraudulent statements by , ,: an agent, who attached signature thereto; 'when the statements are not

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ATTAOllHENT-SUFFIClBNOY Oil' AIl'Il'IDAVIT.

FISHER V. SECRIST.

265

attached to the afIldavit or the substance of themllet out; since the creditor cannot be allowed to determine for himself that the statement will authorize an attachment. '

At Law. Action commenced by attachment ,by Olive B. Fisher against Sophia S. Secristnpon an affidavit alleging that the debt was fraudulently contracted. Heard on motion to quash the writ. Motion granted. Eastman & Schumacher, for plaintiff. E. A. Sherburne, for defendant.
GRESHAM; J. This is amotion to quash a writ of attachment based upon an 'afi1davit, the parts of which read''.That SophiaS. Secrist, defendant,herein, is indebted to this affiant, after allowing 111l j\lst creqits and set-off,8, in the,sum of thousand dollars ($24,OOO)datn'ages and interest upon the covenants in, the deed, a copyaf which is, llereto annexed andmiidea' part of this affidavit. Affiant says that said, indebtl"dness was;fraudulelltlycontracted on the part of said 'Sophia S; ·Secrist; a,nd,further, that! e<ertain were made by Said SopbiaS.;Sec,rist by Jobn.14. agent, which cons,titute said fraud:, and writing, andtbat the signatureot said Sophia S. Secl'ist'by"tier said agent is attached thllteto. Affiant further says that said indebtedness was fraudulently contracted on the part of said Sophia S. Secrist; and, fuIthe,.-, that certain statements were made by said Sophia S. Secrist, by her agents R. A. Kimbel, Thomas Lomax, W. O. Crosby, and O. M. Wells. which constitute said fraud, and that said statements have been reduced to writing, and. that thl! signatures of said agents are attached thereto." " .

Section20f an act governing proceedings in' attachQlent (1 Starr & C. St. p. 310) reads: "To. entitle a creditol' to ,such writ he, or.his agent oratiot. ney,shaUmake and file wlththe clerk of such court an afl,idavit setting forth the ,nature and amount of the Indebtedness, after allowing all just credits and set-offs, and anyone or more of 'the caullesmentioned in the preeelling: sec· tion." The proceeding was cOIl1mencedunder subdivision 9 ofsection 1, which reads: -"When the debt sued for is fraudulently contracted on the part of the debtor: provided, the statements of the delJtor, his agent or attorney, which constitute thefra nd, shall be redueed to writing. and his signature .attached thereto by himself, agent. or attorney. " The deed contains the usual covenants of warrant)', but there is no averment in the affidavit of a breach' of all or any of them. 'rha"only of the claim or demand is that the defendant is indebted to the plainti'fi "in the sum of twenty-four thousand dollars damages and interest upon the covenants in the deed." This is not a "setting forth of, the nature and amount of the indebtedness," within the meaning of the statute. The affidavit should state the facts relied' on as breaches of the covenants, and the da.mage sustained by each breach. The actioD was commenced by prl£cipe, and nd declaration has been filed.

266

FEDER,ALRJi;PORTER,

vol. 48.

There is another, and no less fatal, objection. to thel1ffi.davit. The writcahnot issue uhder subdivision 9, unless an affidavit ofthe creditor, his agent or attorney, shows, otherwise than by mere averment, that the debt was contracted by means of written frauuulent representations or staf;eQ}eptsbearing. tile defendq,nt'/3 signat).lreattached .by himself, or his or attorney. The defendant'ssignat:ure, is not attached to the ,made 1:>Y: agents. Kimbel, Crosby, and Welli. The other alleged it were made by the defendant's agent John M. Secriat, whoattaphed 1;ler:signature to them. But a copy of them is not made part of the affidavit, nor is the of .thememhod,ied, ill it. ThE! .creditor is not permitted to determine for himself that "liften statemElnts, if there ;1;>e any, are such as entitle him to the'Writ.' Tne proviso 6fsubdivision 9 was doubtless to debto.r ,abuse, of'process in 8 pro,arid' 'statutory. ..It is. under the eqn13tmctlOn .wQlGb.;;the suprerpe callrto! the state has,glven to the preceding. claUSes..of iHs!sufficient,: in proceedings under thetn: t 'th8tth6 l.,mdnvit follows tbeidangulige. , But subdivision 9 has not'been by tMtcourt,'upd', in vieW: of its clear and explicit ".0'" ,.Iiliii;1J(,the amda:vit , . vee Motion sustained. · .'. ' ",. ,,' r'o
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'. ,Code prQvidirig that no sutt fol' the lands sold for taxes 'lihitin, bEl'ooibtJ1en:eed mol'll 'than three years ,after the recording; of .the tax.deed,is a complete defense to aauit.:brought after, th$t tiPle.when t.ne dlled is valid land tb,at dlled..¥,: void of irregu. . ' larities in the prior proceediugs.
STATUTES-ADOPTION PROM ANOTHER STATE-CONSTRUOTION.

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A lltat,ewh!.Qh l,IWlPts .from Wlother state a,statute whiCh has beenoonstrued by the 'hlgl:iest court there'of is'conclusively presumed to 'adopt ltwtth the construction thus placed upon it. .

At AotioD Coulter against John£.; the recovery Of land, 80ll1- for, taxes. Jury: waived, and trial by the court. Judgment for defendant. i; , Pustin"llep/rin &Orews, fQr plaintiff. ,Ba.tJk&: Shiple!JJ,. for4efendant.·

Law.

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This. is an real in the plaintiff claims, to J:>e the ow:ner in' fee-simple,defrom a patentee ·Qf the United PQssesaic>,n,ihaving the year 1886, ,to sheriff pursuant to PMle :pf,thEl land:lill188.3 :l:l.J'.. J fOJ: of raigning S14tes,.n'Xhe,
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