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Vol. II.]

PARKINSON v. LASALLE.

[No. 6.

cially on the ground that the bill does not allege the delivery at the office of the Librarian of Congress, or a deposit in the mail addressed to said Librarian, of a copy of the title of the map before its publication, or a delivery to said Librarian, or a deposit in the mail addressed to him, of two copies of said map within ten days from its publication. The copyright is claimed to have been obtained on October 2, 1874. Section 4952 of the Revised Statutes then in force provides that "any citizen of the United States who shall be the author of any

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shall, upon complying with the provisions of this chapter, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same." Section 4956 provides that "No person shall be entitled to a copyright unless he shall before publication deliver at the office 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 or other article for which he desires a copyright, nor unless he shall also, within ten days from the publication thereof, deliver 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, or other article." Section 4959 provides

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that "The proprietors of every copyright book or other article shall deliver at the office of the Librarian of Congress, or deposit in the mail addressed to the Librarian of Congress, at Washington, District of Columbia, within ten days after its publication, two complete copies thereof, of the best edition issued." Section 4960, that "For every failure on the part of the proprietor of any copyright to deliver or deposit in the mail either of the published copies, or description or photograph, required by section four thousand nine hundred and fifty-six and four thousand nine hundred and fifty-nine, the proprietor of the copyright shall be liable to a penalty of twenty-five dollars, to be recovered by the Librarian of Congress, in the name of the United States, in an action in the nature of an action of debt, in any district court of the United States within the jurisdiction of which the delinquent may reside or be found." And section 4962, that "No person 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, if it be a book, or if a map,

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used was complied with. So it is equally for the court to judge whether the requirement as to the filing of the proper declaration was complied with. The general certificate of the commissioner cannot be taken as evidence on the subject.

The certificate that the trade-mark has been duly registered and recorded in the patent office, and will remain in force for thirty years from the day specified, adds no force to the effect of the certificate. The statute says that the thirty years shall run from the date of the registration; that the time of the receipt for registration shall be recorded, and that the certificate shall cover a copy of the date of the receipt. The date given in the certificate as the date from which the thirty years is to run

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is to be regarded as intended for the date of registration, and the date previously named in the certificate is the date of the receipt for registration. In this view the certificate intends to show when the trade-mark will expire, and the certificate that it has been registered and recorded, and will remain in force for thirty years from the day named, is only equivalent to saying that such day is to be taken as the date of the registration. The date given in the certificate as the date of deposit for registration is not regarded by the certificate as the date of registration and recording.

On these grounds alone the motion for an injunction now made must be denied, without considering any of the other points raised.

Vol. II.]

PARKINSON v. Lasalle.

[No. 6.

by inscribing upon some portion of the face or front thereof, or on the face of the substance on which the same shall be mounted, 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."

It is settled by the supreme court in Wheaton v. Peters, 8 Pet. 591, that every act required by the Act of Congress of May 3, 1790 (1 Stat. 124), and of April 29, 1802 (2 Stat. 171), relative to copyrights is essential to the title derived under those acts. Unless he performs every act required by these statutes, the author acquires no exclusive right. See also Jollie v. Jaques, 1 Blatch. 618, and also Baker v. Taylor, 2 Ib. 82. The authority of these decisions is not questioned by complainant, but it is insisted that the present statute is different and requires a different construction. On the contrary, it appears to me to be more difficult under the present statute to escape the construction adopted by the supreme court in Wheaton v. Peters, than under the former acts.

Under section 3 of the Act of 1790, there was some ground for claiming that it was only necessary to deposit a printed copy of the title to a book or map, in order to secure a copyright; and that the provisions in the latter part of this section, and in section 4, for publication of a copy of the record, and the delivery of the copy of the work, were merely directory, or at most conditions subsequent. But there is no ground for such claim under the present act. Under section 4952 of the Revised Statutes, an author of a book or map is to have the sole liberty of printing and vending the same," only "upon complying with the provisions of this chapter," that is to say, all the provisions, for no exception is made. No one provision is referred to rather than another. As the statute has not limited the acts to be performed to any one provision less than the whole, the courts have no authority to say that any one rather than another, less than the whole is sufficient. Section 4956 in express terms declares that "no person shall be entitled to a copyright unless he shall before publication deliver at the office 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 or other article &c. ; nor unless he shall also, within ten days from the publication thereof, deliver 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 book, or other article," &c. There is no possible room for construction here. The statute says no right shall attach until these acts have been performed; and the court cannot say, in the face of this express negative provision, that a right shall attach unless they are performed. Until the performance as prescribed, there is no right acquired under the statute that can be violated.

It is claimed by the complainant, that section 4962 prescribes the essentials necessary to authorize the maintenance of the action; and that the court cannot add others. It is upon this section that it is sought to distinguish this case from those arising under former acts, which did not contain the provision. The provision relied on is, that "no person shall maintain an action for the infringement of his copyright unless he shall give notice thereof by inserting in his several copies of every edition published if it be a map . by inscribing

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Vol. II.]

FIRST NATIONAL BANK OF SELMA v. COLBY.

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[No. 6.

upon some portion of the face or front thereof, or on the face of the substance on which the same shall be mounted, 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."" But the difficulty in adopting the complainant's view is, that a cause of action must exist before an action can be maintained; and there can be no cause of action till a right exists, and that right has been violated.

Under sections 4952 and 4986 the plaintiff can have no copyright till he has performed the prescribed conditions; and until he has acquired his copyright, there can be no violation of that right at all which can afford a ground of action. Instead of section 4962 being a limitation of the acts to be performed, or alleged in order to entitle a party to maintain an action, it imposes an additional duty upon him as a prerequisite to its maintenance. He must first acquire a copyright under the other provisions of the act, and then, in order to enforce his right against infringers, he must also give notice of his right by the means prescribed by section 4962, so that other parties may not copy his work in ignorance of his rights. This seems to be the object of the provision. An analogous provision, and for a similar purpose, copied from previous acts, is found in section 4900, relating to patent rights.

The complainant's claim can derive no argumentative support against the express negative provisions of the statute already cited and discussed, from section 4960, providing for a penalty to be recovered from the author on failure to perform all the conditions prescribed. This seems to be intended to furnish additional guarantees against attempts of parties to avail themselves of the benefits of a copyright without first performing all the conditions prescribed in order to confer the right.

The demurrer must be sustained, and it is so ordered, with leave to amend on the usual terms.

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The property of a national bank organized under the Act of Congress of June 3, 1864, attached at the suit of an individual creditor, after the bank has become insolvent, cannot be subjected to sale for the payment of his demand, against the claim for the property by a receiver of the bank subsequently appointed.

A suit against a national bank to enforce the collection of a demand is abated by a decree of a district court of the United States dissolving the corporation and forfeiting its rights and franchises, rendered upon an information against the bank filed by the comptroller of the currency.

Vol. II.]

FIRST NATIONAL BANK OF SELMA v. COLBY.

MR. JUSTICE FIELD delivered the opinion of the court.

[No. 6.

Two questions are presented in this case for our determination: 1st, whether the property of a national bank organized under the Act of Congress of June 3, 1864 (13 Stat. at Large 99), attached at the suit of an individual creditor, after the bank has become insolvent, can be subjected to sale for the payment of his demand, against the claim for the property by a receiver of the bank subsequently appointed; and 2d, whether a suit against a national bank to enforce the collection of a demand is abated by a decree dissolving the corporation and forfeiting its rights and franchises.

To the first question the act of Congress furnishes an answer in the negative; to the second, the general law respecting corporations gives one in the affirmative.

The act of Congress prescribes the conditions upon which national banks shall be created, the powers they shall possess, and the consequences of their failure to meet their obligations. All persons dealing with these institutions can only acquire and enforce rights against them under the limitations there designated.

The object of the act, as its title imports, was to create a national currency secured by a pledge of the bonds of the United States. And to that end it requires security in government bonds for all notes issued d; and in case any bank fails to redeem its notes on demand, it provides for their payment on presentation at the treasury of the United States.

To make good any deficiency which may exist in the proceeds of the bonds to meet the amount expended in paying the notes of a bank, the act declares that "the United States shall have a first and paramount lien upon all the assets" of the association. Whatever disposition, therefore, may be made of the property of an insolvent bank, the lien of the United States thereon must exist until the government is fully reimbursed.

As to the general creditors, the act evidently intends to secure equality among them in the division of the proceeds of the property of the bank. The 50th section provides for the appointment of a receiver of an insolvent bank, who shall take possession of its assets, collect its debts, and upon the order of a court of record sell its real and personal property, and pay over the money to the treasury of the United States, subject to the order of the comptroller of the currency; that the comptroller shall then advertise for creditors to present their claims against the association, and after making provision for refunding to the United States any deficiency in redeeming its notes, shall make a ratable dividend of the money on all claims proved to his satisfaction or adjudicated in a court of competent jurisdiction.

The 52d section, further to secure this equality, declares that all transfers by an insolvent bank of its property of every kind, and all payments of money made after the commission of an act of insolvency, or in contemplation thereof, with a view to prevent the application of its assets in the manner prescribed by the act, or "with the view to the preference of one creditor over another, except in the payment of its circulating notes, shall be utterly null and void."

There is in these provisions a clear manifestation of a design on the part of Congress: 1st, to secure the government for the payment of the

Vol. II.]

FIRST NATIONAL BANK OF SELMA v. COLBY.

[No. 6.

notes, not only by requiring in advance of their issue a deposit of bonds of the United States, but by giving to the government a first lien for any deficiency that may arise on all the assets subsequently acquired by the insolvent bank; and, 2d, to secure the assets of the bank for ratable distribution among its general creditors.

This design would be defeated if a preference in the application of the assets could be obtained by adversary proceedings. The priority of the United States and the ratable distribution among the general creditors, so studiously provided for in the act, would in that case be lost. As justly observed by counsel, if preference was left to the race of diligence, creditors living remote from the location of the bank would always be distanced in the contest, and the equality promised to them by the act would be a mere mockery.

In the present case the record shows that on the 15th of April, 1867, a treasury draft of the United States was presented to the bank and its payment was refused; that on the morning of the following day, the 16th, the bank did not open for business; that during that day possession was taken of the bank-by which we suppose is meant its place of business, its property and effects, and its books and papers-by the military authorities of the United States, under instructions from the secretary of the treasury; that on the 17th its president absconded; that an examination had that day into its affairs showed a deficiency in its cash account of two hundred thousand dollars; and that, on the 30th of April, a receiver of its effects was appointed by the comptroller of the currency. Subsequently, on the 1st of June, 1867, on an information filed by the comptroller, a decree was entered in the district court of the United States forfeiting all its rights, franchises, and privileges, and adjudging its dissolution.

Whilst the bank was in possession of the military authorities, namely, on the 17th of April, 1867, the plaintiff sued out an attachment against it upon an affidavit alleging that it was indebted to him in the sum of $4,800, and that it had moneys, property, or effects liable to satisfy its debts which it fraudulently withheld. The attachment was levied the same day on its real property, consisting of a dwelling-house and gristmill. On the 22d of May following a declaration was filed in the case, in which the plaintiff alleged an indebtedness of the bank to him in the amount stated on three certificates of deposit.

Nearly two years afterwards, in March, 1869, the attachment suit came on for trial. The receiver was then allowed, without objection, to appear by counsel and make proof of the facts we have stated, and produce his appointment as receiver, and the decree dissolving the bank and forfeiting its rights, privileges, and franchises. And thereupon he moved the court to dissolve the attachment, and discharge the levy, and that the suit abate. This motion was overruled. The receiver then offered, without objection, the same evidence to the jury, and requested the court to instruct them, among other things, that if they believed the evidence, the suit could not be maintained by the plaintiff, and that they must find for the defendant. This instruction the court refused, and the jury gave a verdict for the plaintiff for the full amount claimed.

It is too late for counsel to question in this court the right of the re

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