Statement of the Case.

proof heretofore filed and lost." The record shows that on the 24th of February, 1888, there were filed in the court the certified copies of papers from the office of the Librarian of Congress, which are set forth in the margin.1

No. 4933 B. To wit:

1 LIBRARY OF CONGRESS, COPYRIGHT OFFICE, WASHINGTON.

Be it remembered that on the 26th day of May, anno Domini 1871, Charles Scribner & Co., of New York, has deposited in this office the title of a book, the title or description of which is in the following words, to wit:

Common Sense in the Household;

A Manual of Practical Housewifery.

By Marion Harland.

New York:

Charles Scribner & Co., 1871.

the right whereof they claim as proprietors in conformity with the laws of the United States respecting copyrights.

A. R. SPOFFORD, Librarian of Congress.

Two copies of the above publication deposited May 26, 1871.

I, A. R. Spofford, Librarian of Congress, hereby certify that the foregoing is a true copy of the original record of copyright in the Library of Congress. In witness whereof I have hereto set my hand and affixed the seal of my office this 12th day of November, 1883.

Be it remembered that on the 18th day of September, anno Domini, 1880, Charles Scribner's Sons, of New York, have deposited in this office the title of a book, the title or description of which is in the following words, to wit:

Common Sense in the Household;

A Manual of Practical Housewifery.
By Marion Harland.

(New edition.)

New York:

Charles Scribner's Sons, 1881.

the right whereof they claim as proprietors in conformity with the laws of the United States respecting copyrights.

A. R. SPOFFORD, Librarian of Congress.

VOL. CXLIV-32

Statement of the Case.

On the 6th of April, 1888, the defendants filed in the clerk's office a motion to strike from the record, as evidence in the cause, the certificates of the Librarian of Congress so filed, because (1) neither of them was in proper form or properly authenticated; (2) neither of them was in compliance with the order of February 23, 1888, "because no other certificates having the like purport or effect had been ever offered in evidence nor lost from the files in said cause;" and (3) they were incompetent and irrelevant.

On the 7th of April, 1888, the court entered an order overruling the motion to strike from the files "the certificates by the Librarian of Congress, filed as testimony in this cause."

The cause was heard by Judge Blodgett, who filed an opinion on April 9, 1888, a copy of which is contained in the record, and on the same day the court entered a decree which stated that the case was heard upon the bill, answers and replications, and proof taken in the cause, documentary, oral and written, "and upon the master's report herein, with exceptions thereto." The decree granted a perpetual injunction restraining the defendants and each of them, their officers and agents, from printing, publishing, binding, selling or exposing for sale, or causing or being in any way concerned in selling or exposing for sale, or otherwise disposing of any copy of the book described in the bill as having been published by the defendants under various titles, (which titles are set forth,) and any copy of said book under any title whatsoever. The decree adjudged that the defendants' book was an infringement upon the rights of the plaintiff as owner of the copyright of his book, the title of which is given in the decree, and that he was entitled to damages for such infringement; and upon the proof the court fixed the amount of such damages at $1092, "being the amount of the profits shown by the proof

I, A. R. Spofford, Librarian of Congress, hereby certify that the foregoing is a true copy of the original record of copyright in the Library of Congress. In witness whereof I have hereto set my hand and affixed the seal of my office this 25th day of October, 1884.

[SEAL.]

A. R. SPOFFORD, Librarian of Congress.

Argument for Appellants.

to have been made by defendants from the defendants' infringement," and that the plaintiff recover that sum from the defendants and each of them, with costs. The defendants

took an appeal to this court.

Mr. Newton A. Partridge for appellants.

I. The first assignment of error relates to the recital in the decree that the final hearing was upon the master's report and exceptions. While this error is clearly established upon the face of the record, counsel for the appellants do not desire to discuss it at length, and deem it immaterial, unless some advantage bearing upon the extent and nature of the evidence before the court to sustain its findings of fact and its decree upon the final hearing, should be attempted by appellee. In that event, the recital complained of might become material, and it is for that reason alone that the necessary space has been taken to clearly raise the point.

II. It is further contended that the complainant was not the owner of the two copyrights in said book entitled, "Common Sense in the Household," in question in this case, and that he was not entitled to file and maintain his bill herein. The bill of complaint states that M. Virginia Terhune, the wife of Edward P. Terhune, was the author of said book, and her evidence shows that at the time when said book was written, she resided in Newark, New Jersey, with her said husband, and she stated that she was married in 1856. The agreement stated the name of the author as Mrs. E. P. Terhune (Marion Harland) of the city of Newark, State of New Jersey. At common law a married woman has no interest in personal property acquired by or through her during marriage, but it belongs absolutely to her husband.

No proof was introduced of the provisions of the laws of New York or of New Jersey or of Massachusetts, where it was stated said M. Virginia Terhune resided at the time said bill was filed and no proof was submitted to show that the laws of either of said States differed from the common law; and the presumption is that the common law is in force in the

Argument for Appellants.

different States unless the contrary is pleaded and proved. Crouch v. Hall, 15 Illinois, 263. But in case of personal property acquired after marriage by her means, such property belongs absolutely to the husband; so that, if a legacy should be given to the wife during coverture, and the husband should die before it is paid or due, it would not belong to the wife, but to the husband's executor.

III. No valid copyright was obtained in the first or 1871 edition of the said book, "Common Sense in the Household," because the statute was not complied with. The statute required delivery at the office of the Librarian of Congress or deposit in the mail addressed to the said librarian, of two copies of such copyright book "within ten days from the publication thereof." The uniform construction which has been placed upon this provision of the law is the same as if it read ten days from and after publication, and such is the ordinary, well-determined meaning of the words employed. In discussing the same phraseology under the act of February 3, 1831, although the period of time was different, the court used the following language: "Undoubtedly the three conditions prescribed by the statute, viz.: and the depositing of the copies of the book within three months after the publication, are conditions precedent to the perfecting of the copyright." Callaghan v. Myers, 128 U. S. 617, 652.

IV. The copyright in the new or 1880 edition of said book, "Common Sense in the Household," was claimed to be invalid because the proof is not sufficient to show that the two copies of said book were duly deposited to complete said copyright.

V. It is claimed that said Circuit Court committed error in granting the motion of the complainants to file a certified copy of copyright in place of such proof alleged theretofore to have been filed and lost, and in refusing to grant the motion on behalf of the defendants to strike from the record in said cause the certified copies which were filed February 24, 1888.

VI. The decree ought to have been entered for the amount of $1092, against said defendant corporation, Belford, Clarke

Opinion of the Court.

& Co., alone, and it was error to decree Michael A. Donohue and William P. Henneberry, and each of them, to pay any part of said amount. The present case comes clearly within the rule announced in Elizabeth v. Nicholson Pavement Co., 97 U. S. 126, where an identical question was discussed and the true rule laid down, which is, that unless all of the defendants realize a profit from the infringement, a joint decree for the payment of such profit should not be entered against them. It was there held to be error to enter a decree against the defendants who did not participate in the profits shown to have been thus realized for the payment of such profits.

VII. The decree ought to have been entered for only the proportion of the profits realized by said corporation, Belford, Clarke & Co., from the sale of the said books complained of, which was derived from the use of the matter copied from said book entitled "Common Sense in the Household." This is the case of a cook-book. Its matter consists of short receipts classified together under appropriate heads. Many of these vary but little from some others contained under the same heading. The book is not constructed upon the plan of the reports considered in Callaghan v. Myers, where it was stated that the value of the book consisted in its integrity as a whole. Had the books complained of contained other matter so incorporated with the copyright matter that the same could not be separated, and so that the lawful matter would be useless without the use of the matter unlawfully obtained, a different principle would apply. But here the evidence shows that all the receipts contained in the books complained of which were wholly or partly identical with the matter contained in said book, "Common Sense in the Household," could be separated without difficulty from the other receipts.

Mr. Walter C. Larned for appellee.

MR. JUSTICE BLATCHFORD, after stating the case, delivered the opinion of the court.

The assignments of error filed by the defendants in this