Stevens v. Gladding & Proud.

JAMES STEVENS, PLAINTIFF IN ERROR, v. ROYAL GLADDING AND ISAAC T. PROUD, TRADING UNDER THE NAME AND FIRM OF GLADDING & PROUD, DEFENDants.

Where no error appears upon the record in the proceedings of the Circuit Court, the case having been left to a jury, and no instructions asked from the court, the judgment below must be affirmed.

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the district of Rhode Island.

The plaintiff in error, Stevens, was the same person who was the appellant in the case of Stevens v. Cady, reported in 14 Howard, 529.

In the present suit, he brought an action, being a citizen of Connecticut, against Gladding & Proud, booksellers of Providence, in Rhode Island. It was a qui tam action in which he claimed two thousand dollars, because the defendants published and sold two thousand copies of his map of the State of Rhode Island, for which he had obtained a copyright.

The defendants pleaded not guilty, and the case went on to trial before a jury, who found a verdict for the defendants. In the progress of the rial, there was no prayer to the court to instruct the jury upon a matter of law, nor any bill of exceptions whatever.

Stevens managed the case for himself, and it would be difficult to conjecture the reason for suing out a writ of error, if it were not for the following assignment of error which was attached to the record:

This was a qui tam action at law, in debt, for the forfeitures and penalties incurred by the defendants for the violation of a copyright granted to the plaintiff in error, on the 23d day of April, 1881, under an act of Congress entitled "An act to amend the several acts respecting copyrights, approved 3d February, 1831.”

The plaintiff's title to this copyright is set forth in the declaration herein. The principal questions in this case are: Was the verdict and judgment correct? Was the sale of the engraved plates the sale of a copyright? Did such sale authorize the defendants, or any other person, to print and sell this literary production, still subsisting under a copyright in this complainant?

The very learned opinion of the Supreme Court of the United States, delivered by Mr. Justice Nelson, in bill in chancery, James Stevens v. Isaac H. Cady, 14 Howard, 528, is ample and decisive on this subject. JAMES STEVENS, For himself.

Stevens v. Gladding & Proud.

In this court, the following brief was filed by Mr. Ames, no counsel appearing for the plaintiff in error:

The record in this case shows, that at the November term of the Circuit Court for the district of Rhode Island, 1848, the plaintiff in error brought a qui tam action against the defendants in error, to recover penalties and forfeitures alleged to have been incurred by them under the act of Congress passed February 3d, 1881, entitled "An act to amend the several acts respecting copyrights;" that at the June term of said court, 1850, the cause was submitted, upon the general issue, to a jury, who, in due form, returned a verdict in favor of the defendants in error, of "not guilty;" whereupon judgment was entered, that they have and recover their costs of suit.

The record discloses no error in law, nor, to the knowledge of the defendants in error or of their counsel, was any error of law brought upon the record by the allowance of a bill of exceptions. The court has no choice, therefore, but to confirm the judgment below, with costs. SAMUEL AMES, For Defendants in Error.

Mr. Justice McLEAN delivered the opinion of the court. This is a writ of error to the Circuit Court for the district of Rhode Island.

An action was brought by the plaintiff in the Circuit Court, alleging that he was the author of a topographical map of the State of Rhode Island and Providence Plantations, surveyed trigonometrically by himself, the copyright of which he secured under the act of Congress of the 3d April, 1881, entitled "An act to amend the several acts respecting copyrights;" and he avers a special compliance with all the requisites of said act, to vest in him the copyright of said map or chart. And he charges the defendants with having published two thousand copies of his map, and sold them within two years before the commencement of the action, in violation of his right, secured as aforesaid, to his damage four thousand dollars.

The defendants pleaded not guilty. The case was submitted to a jury, who returned a verdict of not guilty. A judgment was entered against the plaintiff for costs.

A writ of error was procured, and bond given to prosecute it with effect.

The defendant in proper person assigns for error, "that the verdict and judgment were given against the plaintiff in error, whereas the verdict and judgment should have been given for the plaintiff, and he prays a reversal of the judgment on this ground."

In a very short argument, the plaintiff in error says, the

Lathrop v. Judson.

principal questions are: Was the verdict and judgment correct? Was the sale of the engraved plate, on execution, the sale of the copyright? Did such sale authorize the defendants, or any other person, to print and sell this literary production, still subsisting under a copyright in the plaintiff. And he refers to 14 Howard, 528, Stevens v. Cady. In that case this court held that a sale of the copperplate for a map, on execution, does not authorize the purchaser to print the map.

Two or three depositions, not certified with the record, were handed to the court as having been omitted by the clerk in making up the record; but it does not appear that they were used in the trial before the Circuit Court; and if it did so appear, no instructions were asked of the court to the jury, to lay the foundation of error.

It is to be regretted that the plaintiff in error, in undertaking to manage his own case, has omitted to take the necessary steps to protect his interest. There is no error appearing on the record which can be noticed by this court; the judgment of the Circuit Court is therefore affirmed with costs.

C. C. LATHROP, PLAINTIFF IN Error, v. Charles Judson.

Where exceptions are not taken in the progress of the trial in the Circuit Court, and do not appear on the record, there is no ground for the action of this court.

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the eastern district of Louisiana.

The suit was commenced by Charles Judson, a citizen of New York, to recover from Lathrop the amount of a judg ment rendered by the Supreme Court of Louisiana, in June, 1851, for $1,810, with interest from the 2d of May, 1845. The plaintiff attached to his petition a copy of the record of the judgment. The suit was commenced on 6th May, 1854.

On the 18th of May, the defendant filed the following exception and plea:

To the Hon. the Judges of the Circuit Court of the United States for the Fifth Circuit and Eastern District of Louisiana:

The exception and plea to the jurisdiction of Charles C. Lathrop, of New Orleans, to the petition filed against him in this honorable court, by Charles Judson, of the State of New York.

This respondent alleges, that this honorable court has no jurisdiction of the suit instituted in this matter, the same

Lathrop v. Judson.

having been litigated and deceden in the courts of the State of Louisiana, and an execution having been issued on the judgment in said suit by the said Charles Judson against this respondent, under which execution a seizure has been made of certain property as belonging to this respondent, and which execution has not yet been returned; all of which will fully appear by reference to the suit No. 16,671, of the docket of the late Parish Court of New Orleans, transferred to the Third District Court of New Orleans, and to the notice of seizure, herewith filed. Wherefore, this respondent prays that his exception may be sustained, and that he may be excused from answering to said petition, and that he may be hence dismissed with his costs.

In June, 1854, the court ordered and adjudged that the said exception' be dismissed at defendant's costs.

On the same day, Lathrop filed his answer, alleging that on the 11th of February, 1851, he had made a cession of all his property to his creditors, under the insolvent laws of Louisi ana; that the plaintiff in the suit was placed on the list of creditors for the amount of the judgment; that the debt for which the judgment was rendered was contracted in Louisiana, and that the plaintiff bought the debt at the sale by the U. S. Marshal, &c., &c. To sustain this answer, the defendant produced the record in insolvency.

In November, 1854, the cause came on to be heard, and was submitted to the court, when judgment was entered in favor of Judson, against Lathrop; for $1,810.50, with interest from 2d May, 1845, till paid, and costs.

Lathrop sued out a writ of error, and brought the case up to this court.

It was argued by Mr. Taylor for the plaintiff in error, and Mr. Benjamin for the defendant.

Mr. Taylor assigned for error the following:

1st. That the exception and plea to the jurisdiction of the Circuit Court, founded on the fact that there was at the time an execution then in force, upon which a seizure had been made under the judgment sued on, was improperly overruled.

And

2d. That the decision of the lower court, to the effect that the original cause of indebtedness was not a Louisiana contract, upon the facts set forth in the decision of the court, is erroneous, and contrary to law.

And then made the following points:

Lathrop v. Judson.

I. In Louisiana, only one execution can issue at a time on a judgment; and when a judgment is in the course of execution in one court, no judgment can be had on the same claim, unless subject to the condition that no execution issue until the result of the proceedings on the execution be ascertained. Hudson v. Dangerfield, 2 L. R., 66; Newell v. Morton, 3 R., 102; Hennen's Dig., p. 782, No. 9.

II. Contracts are governed by the law of the place where they are entered into, and an obligation contracted or incurred is payable at the domicil or residence of the obligor, in the absence of an express stipulation making it payable elsewhere. Lynch v. Postlethwaite, 7 M. R., 213; Hennen's Dig., 1,068. Com. of Laws, Nos. 4, 5, 10; Shamburgh v. Commugen, 10 M. R., 15; Hepburn v. Toledano, 10 M. R., 643; 2 N. S., 511.

Mr. Benjamin took the following view of the case:

This record exhibits a writ of error prosecuted from the judgment of the Circuit Court, but there is neither assignment of error nor bill of exceptions.

It has been so often decided by this court, that it cannot take cognisance of a cause presented in this shape, that plaintiff in error could not have taken the writ with any other design than that of obtaining delay. Wherefore it is prayed that damages be allowed under the 17th rule of court. Arthurs and al. v. Hart, 17 Howard, 6; Weems v. George and al., 18 Howard, 190-'7; Bond v. Brown, 12 Howard, 254; Field v. United States, 9 Peters, 202; United States v. King, 7 Howard, 833; Zeller's Lessee v. Eckhart, 4 Howard, 289.

Mr. Justice MCLEAN delivered the opinion of the court. This is a writ of error to the Circuit Court for the eastern district of Louisiana.

The action was brought on a judgment rendered by the Supreme Court of Louisiana; certain matters were set up in the Circuit Court, as a defence, all of which were overruled, and judgment was entered for eighteen hundred and ten dollars, with interest and costs. The only errors assigned in this court, on which a reversal of the judgment of the Circuit Court is prayed, are: 1, that at the time suit was brought on the judgment, in the Circuit Court, an execution had been issued on the same judgment in the State court, which was in full force, and on which a seizure had been made; and 2, that the Circuit Court erred in holding that the indebtment was not founded on a Louisiana contract.

These exceptions were not taken in the progress of the trial in the Circuit Court, and do not appear on the record. The