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profits to the defendant were the same specified amount, the court took jurisdiction accordingly.20 Where the proof is conflicting in an action at law for infringement, it is a question for the jury to decide whether the patented invention is of a primary character and the patent a pioneer.21

$ 454n. Pleading in actions at common law upon copyrights. The Revised Statutes provide that “in all actions arising under the laws respecting copyrights, the defendant may plead the general issue, and give the special matter in evidence.” 1

The Pennsylvania practice in replevin is not followed by the courts of the United States, there held, in actions to enforce a forfeiture under the Revised Statutes for breach of copyright.2 In New York, a cause of action to recover penalties for infringement of copyright cannot be joined with one for damages for tort not connected with copyright, namely, the circulation of the piratical publication under the plaintiff's name.3

In other respects, the pleadings in actions at common law arising under the copyright Laws should in general follow the State practice.4

The plaintiff's initial plea must set forth every fact necessary under the statute to the existence of a valid copyright. Where there are alternative methods of compliance with the statu

20 Portland Gold Min. Co. v. Hermann, C. C. A., 160 Fed. 91.

21 Transit Development Co. v. Cheatham El. Switching Device Co., C. C. A., 194 Fed. 963.

$ 454n. 1U. S. R. S., $ 4969.

2 U. S. R. S., $ 4965; Falk v. Curtis, 102 Fed. 967; S. C., C. C. A., 107 Fed. 126; Gustin v. Record Pub. Co., 127 Fed. 603. See $ 150, supra.

3 Ohman v. City of New York, 168 Fed. 953.

4 Ohman v. New York, 168 Fed. 953; Johnston 'v. Klopsch, 88 Fed. 692. See Hale on Copyright and Literary Property, 13 Corpus Juris 1198-1203, supra, $ 150.

6 Burk v. Relief, etc., Assoc., 3 Hawaii Fed. 388; Parkinson v. Laselle, 18 F. Cas. No. 10,762, 3 Sawy.

330; Boucicault v. Hart, 3 F. Cas. No. 1,692, 13 Blatchf. 47; Chicago Music Company v. J. W. Butler Paper Co., 19 Fed. 758; Stover v. Lathrop, 33 Fed. 348; Falk v. Howell, 34 Fed. 739; Trow City Directory Co. v. Curtin, 36 Fed. 829; Scribner v. Henry G. Allen Co., 43 Fed. 680; Scribner v. Henry G. Allen Co., 49 Fed. 854; Osgood v. A. S. Aloe Instrument Co., 69 Fed. 291; Burnell v. Chown, 69 Fed. 993; Ford v. Charles E. Blaney Amusement Co., 148 Fed. 642; Ohman v. New York, 168 Fed. 953; Bosselman v. Richardson, 174 Fed. 622, 98 C. C. A. 127; Gaument Co. v. Hatch, 208 Fed. 378; See Hale no Copyright and Literary Property.

tory conditions, they cannot be pleaded in the disjunctive,6 although if not inconsistent they may be pleaded in the conjunctive.?

The plaintiff must allege: the citizenship or residence of the person who first acquired the copyright. When such person is a non-resident alien, he must allege the existence of reciprocal copyright relations between his country and the United States entitling him to the benefit of the copyright laws'9 He must in general terms allege authorship and originality to the extent necessary to support a copyright, 10 the insertion or use of the statutory notice of copyright, 11 except in the case of foreign editions, 12 compliance with the requirement of domestic manufacture when applicable to the work in which a copyright is claimed, 18 the facts which show that plaintiff is competent to maintain the suit and the right of action asserted is vested in him.14 When the plaintiff claims as assignee it may not be necessary to set forth his chain of title. 15 It has been said that an averment that plaintiff was author 16 or proprietor 17 would be sufficient. It is the safer practice where the copyright was not. obtained in plaintiff's name, or he was not the author, to show

6 Falk v. Howell, 34 Fed. 739.

7 Scribner .v. Henry G. Allen Co., 43 Fed. 680.

8 Webb v. Powers, 29 F. Cas. No. 17,323, 2 Woodb. & M. 497.

9 Ohman v. New York, 168 Fed. 953.

10 Atwill v. Ferrett, 2 F. Cas. No. 640, 2 Blatchf. 39; Henderson v. Tompkins, 60 Fed. 758; Bosselman v. Richardson, 174 Fed. 622, 98 C. C. A. 127; Crown Feature Film Co. v. Levy, 202 Fed. 805.

11 Trow City Directory Co. v. Curtin, 36 Fed. 829; Falk v. Gast Lith., etc., Co., 40 Fed. 168; Haggard v. Waverly Pub. Co., 144 Fed. 490; Ford v. Charles E. Blaney Amusement Co., 148 Fed. 642.

12 Haggard v. Waverly Pub. Co., 144 Fed. 490; United Dictionary Co. v. G. & C. Merriam Co., 208 U. S.

260, 28 S. Ct. 290,52 L. ed. 478.

13 Hale on Copyright and Literary Property, 13 Corpus Juris 1201, criticising Osgood v. A. S. Aloe Instrument Co., 69 Fed. 291.

14 Ferrett v. Atwill, 8 F. Cas. No. 4,747, 1 Blatchf. 151; Crown Feature Film Co. v. Levy, 202 Fed. 905.

15 Lillard v. Sun Printing & Pub. Ass'n, 87 Fed. 213. See Tams v. Witmark, 30 Misc. (N. Y.) 293; 63 N. Y. Supp. 721; aff'a 48 App. Div. (N. Y.) 632.

16 Falk v. Schumacher, 48 Fed. 222; Falk v. Seidenberg, 48 Fed. 224; Gaumont Co. v. Hatch, 208 Fed. 378.

17 Ibid. Lillard v. Sun Printing, etc., Assoc., 87 Fed: 213; Edward Thompson . Co. American Law Book Co., 119 Fed. 217.

án assignment or rather transfer to him 18 or a license sufficient to entitle him to sue 19 Where the copyright is in a work that has not been published, the registration and deposit of copies in accordance with the statute must also be pleaded. 20

The facts which constitute the infringement must be set forth.21 In England, it was held to be sufficient to charge the infringement in the language of the statute 22 It has been there held to be sufficient to charge in general terms that the defendant has copied, published, and pirated the plaintiff's work 23 although the latter does not claim that the former's publication is in every part, a breach of his copyright.24

A copy of the alleged infringement of copyright, if actually made, and a copy of the work alleged to be infringed should accompany the petition, or its absence be explained; except in cases of alleged infringement by the public performance of dramatic and dramatico-musical compositions, the delivery of lectures, sermons, addresses, and so forth, the infringement of copyright upon sculptures and other similar works and in any case where it is not feasible.25

8 4540. Pleadings in actions to recover penalties. Petitions by the United States against railway companies to recover penalties for violations of the Safety Appliance Act, and of the act forbidding cattle to be kept in a car for a period longer than twenty-eight hours without unloading, are treated as actions

51;

18 Chicago Music Co. v. J. W. Butler Paper Co., 19 Fed. 758; Crown Feature Film Co. v. Levy, 202 Fed. 805.

19 Roberts v. Myers, 20 Fed. Cas. No. 11,906; Hill v. Whalen, 220 Fed. 359; Photo Drama Motion Picture Co. v. Social Uplift Film Corp. C. C. A., 220 Fed. 448; Hale on Copyright and Literary Property, 13 Corpus Juris 1195, 1201.

20 Gaumont v. Hatch, 208 Fed. 378. See Hale on Copyright and Literary Property, 13 Corpus Juris 1201.

21 Lee v. Simpson, 3 C. B. 871, 54 E. C. L. 871, 136 Reprint 349; Sto

ver v. Lathrop, 33 Fed. 348; Black
v. Henry G. Allen Co., 42 Fed. 618,
9 L. R. A. 433; Falk v. Curtis Pub.
Co., 110 Fed. 77.

22 Lee v. Simpson, 3 C. B. 871.
23 Sweet v. Maughan, 11 Simons

Lidell v. Copp-Clark Co., 19 Ont.
Pr. 332.

24 Ibid.

26 8. C. Copyright rule 2, Lesser v. Borgfeldt, 188 Fed. 864; Tully v. Triangle Film, 229 Fed. 297, 300 supra, $ 150.

$ 4540. 1 Act of March 2, 1893, 27 St. at L. 531; U. S. v. Atlantic Coast Line R. Co., 153 Fed. 918.

of debt and the pleadings conform in general to the State practice.2

In an action to recover the penalty for a violation of the law requiring a carrier to unload cattle for rest, water and feeding, within each consecutive twenty-eight hours, the Government is not required to allege or prove the non-existence of the exceptional cases which relieve the defendant from such requirement. 8

In an action to recover penalties for the importation of contract laborers an allegation that an offer of employment was made by the defendant corporation need not specify whether the offer was made by an officer of the company, or by some other person · nor the authority of the person who made the offer, nor whether the offer was in writing or by word of mouth, nor the terms of the offer.? An allegation that the defendant in a specified foreign country made to the alien named a "certain offer of employment,” that if the alien would migrate from the foreign country to a specified place in the United States, the defendant would employ and pay him to perform for said defendant at such place certain specified manual labor is sufficient; although the offer was indefinite, as to the amount of the wages and the other terms and conditions of the employment. An allegation that the alien migrated to the United States is sufficient although it does not aver that he went to the place specified in the offer of employment. An allegation that an alien was not within the exempted class but was a contract laborer, is sufficient although it does not state the facts showing that he was not within such class 10

$ 454p. Pleadings in actions at common law by the United States to recover taxes. An action of debt will lie on behalf of the United States to recover taxes of internal revenue, includ

1

2 Act of June 29, 1906, c. 3594, 34 St. at L. 607, Comp. St. Supp. 1907, p. 918; N. Y. Cent. & H. R. R. Co. v. U. S., C. C. A., 165 Fed. 833.

3 N. Y. Cent. & H. R, R. Co. v. U. S., C. C. A., 165 Fed. 833. 4 U. S. v.

Dwight Mfg. Co., 210 Fed. 74.

5 Ibid.

6 Ibid.
7 Ibid.
8 Ibid.
9 Ibid.
10 Ibid.

8 454p. 1 Dollar Sav. Bank y. U. S., 19 Wall. 227, 22 L. ed. 80; U. S. v. Washington Mills, 2 Cliff, 601, 607; U. 8. v. Pacific Railroad, 4

ing stamp taxes, and to recover duties upon imports. The pleadings in them should conform in general with the requirements of the State practice. In a suit brought against an importer to recover the amount of duty assessed under a reliquidation made more than a year after the original liquidation, the Government must conform to the general rule of pleading where recovery is sought on the ground of fraud."

8 455. Writs and process. In general. The Supreme Court has power to issue writs of prohibition to the District Courts when proceeding as courts of admiralty and maritime jurisdiction 1 and power to issue writs of mandamus to any courts appointed under the authority of the United States and where a State, public minister, consul, or vice-consul is a party, to persons holding office under the authority of the United States. In cases of which the Supreme Court has original jurisdiction, it may issue any writ used in practice at common law, although there is no statutory authority for the same. The Supreme Court and the District Courts have the power to issue writs of scire facias.' The Supreme Court, the Circuit Court of Appeals and the District Courts have power to issue all writs, not specifically provided for by statute, which are necessary for exercise of their respective jurisdictions and agreeable to the usages and principles of law.5 This does not authorize the

Dillon, 66; U. S. v. Tilden, 9 Benedict, 368.

2 U. S. v. Chamberlin, 219 U. S. 250, 55 L, ed. 204.

3.U. S. v. Lyman, 1 Mason, 482, Fed. Cas. No. 15,647; Meredith v. U. S., 13 Peters, 486, 10 L. ed. 258.

4 U. S. v. Sherman & Sons Co., 237 U. S. 146. But see U. S. v. Rubin, 227 Fed. 938.

5 U. S. v. Sherman & Sons Co., 237 U. S. 146, 158.

$ 455. 1 Jud. Code, $ 234, 36 Stat. at L. 1087 re-enacting U. S. R. S., $ 688. See $ 456, infra.

2 Ibid. See $ 457, infra.

3 Kentucky v. Dennison, 24 How.

4 Ibid., $ 262, re-enacting U. S. R. S., 8 716. See $ 469, infra.

5 Ibid. In Stewart y, Justices of St. Clair Co. Court, 47 Fed. 482, 484, Judge Philips said "By this is meant the mode of process in the State where the United States Circuit Court sits.” Admiralty Rule 12 of the Circuit Court of Appeals for the Second Circuit provides that "a writ of inhibition may be awarded by this court on motion of the appellant to stay proceedings in the court below, when circumstances require it,"

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