Moses v. Boyd.

It is claimed, on the part of the respondents, that the between deck was not well and sufficiently caulked, and that, if it had been, notwithstanding the leaky condition of the casks, the lard would not have worked its way to the lower hold, and, hence, that the ship should be held responsible for the damage. I agree, that, if this aspect of the case can be maintained, upon the proofs, the decrec should be for the respondents, because the guarantee should not be construed as exonerating the ship from being, in all respects, in a seaworthy condition to carry this description of cargo. I have, consequently, looked into the proofs on this point, and, though there is some conflict of opinion among the witnesses, I am inclined to think that the weight of the testimony does not sustain the allegation of the respondents. The witnesses who speak of the practice or usage of carrying leaking casks of lard between decks without danger to the cargo below, if the deck is properly caulked, generally qualify the reinark as it respects lard in a liquid state in the casks, which, as is apparent from the proofs in this case, was the condition of a considerable portion of this lard when stowed; and, as the weather continued hot throughout nearly the whole of the voyage, this state of the lard must have increased rather than diminished. Indeed, the state of the casks when discharged, and of the between decks, goes far to confirm the evidence of the unusual leaking condition of the casks when put on board of the vessel, which led the stevedore and the master to object to them as not fit to be shipped; and the fact that the charterers, instead of insisting upon their right under the charter, chose to modify it, as respected the particular article, leaves an implication of its unfitness.

Some question was made upon a clause in the charter party stipulating that the vessel should be consigned to the charterer's friends in Havre, and under which she was consigned to the house of J. Barb & Co. This house received the bills of lading and collected the freight, and paid over to the master the amount due, excepting the balance in dispute. They obviously regarded themselves as acting in the interest, and for the benefit, of the charterers; and I cannot agree that the

United States v. Maxon.

payment by them of the damages at Havre was a payinent as agents of the ship, so as to conclude the owners. They dealt with the freight moneys not only as the friends, but as the agents, of the charterers, as is apparent from the accounts between the two houses.

I think that the Court below erred, and that the decree should be reversed, and a decree be entered for the libellants, for such balance.

THE UNITED STATES vs. JOHN MAXON.

Under the 6th Amendment to the Constitution of the United States, which provides that, "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and District wherein the crime shall have been committed, which District shall have been previously ascertained by law," the District in which the trial is had must have been ascertained by law previously to the commission of the crime, and not merely previously to the trial.

The phrase "personal goods of another," in the 16th section of the Act of April 30th, 1790, (1 U. S. Stat. at Large, 116,) embraces the personal goods of the United States.

(Before NELSON and BENEDICT, JJ., Eastern District of New York, November 30th, 1866.)

THIS was a motion to quash an indictment for grand larceny alleged to have been committed on the 31st of December, 1863, in the Navy Yard at Brooklyn, New York. At that time such Navy Yard was within the Southern District of New York. By the Act of February 25th, 1865, (13 U. S. Stat. at Large, 438,) the Eastern District of New York was established, and such Navy Yard fell within its territorial limits and jurisdiction. This indictment was subsequently found in the District Court for the Eastern District, and was transmitted to this Court. The defendant now moved to quash the indictment.

United States v. Maxon.

Calvin E. Pratt and John H. Bergen, for the defendants.

Benjamin D. Silliman, (District Attorney,) for the United

States.

NELSON, J. The indictment in this case charges the defendant with stealing personal property of the United States, within the Navy Yard in the city of Brooklyn, New York, a place under the exclusive jurisdiction of the Federal Government, with some qualifications not material. It was found before the United States District Court for the Eastern District of New York, at the December term, 1865, and has been transferred to this Court for trial. This Eastern Judicial District was defined and organized under an Act of Congress, approved February 25th, 1865, (13 U. S. Stat. at Large, 438.) The offence, therefore, as will be seen, was committed within the former Southern District of New York, from which the Eastern District was taken; and the question presented is, whether or not the defendant was rightfully indicted in this District or can be tried within it. The sixth Amendment to the Constitution of the United States provides that, “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and District wherein the crime shall have been committed, which District shall have been previously ascertained by law." The argument in support of the jurisdiction is, that if the District is ascertained by law before the trial, the Amendment is sufficiently complied with. We think that this interpretation is not in accordance with the fair import of the terms of the provision; nor would it meet the grievance it was intended to remedy, namely, the formation of a District after the offence was committed, to suit the will or caprice of the law-making power. According to the very words of the Amendment, there must be a speedy trial by an impartial jury of the State and District in which the crime was committed, which District (the one in which it was committed) shall have been previously ascertained by law, that is, previous to the commission of the

Rossiter v. Hall.

offence. This question was somewhat discussed by counsel and Court in The United States v. Dawson, (15 Howard, 467,) though the point was not necessarily involved. We think we hazard nothing in saying, that the above view of the Amendment is in accordance with the general opinion of jurists and the profession, since its adoption, and with the reasons that led to it.

Another point was made, which it may be proper to notice, and that is, whether the phrase "personal goods of the United States" comes within the words "personal goods of another," as used in the 16th section of the Act of April 30th, 1790, (1 U.S. Stat. at Large, 116,) under which this indictment is found. We entertain no doubt that it does, and that a larceny of the personal goods of the United States might constitute the subject of the offence charged.

The motion to quash the indictment is granted.

THOMAS P. ROSSITER AND LOUIS R. MIGNOT

vs.

JOSEPH HALL. IN EQUITY.

Under the copyright Act of February 3d, 1831, (4 U. S. Stat. at Large, 436,) it is an infringement of a copyright for an engraving, to reproduce copies of it by the photographic process.

Under the provision of the 5th section of said Act, which requires a copyrighted engraving to have the information that it is copyrighted "impressed on the face thereof," it is a sufficient compliance with the law, if such information be engraved on the plate and printed from it, in such a position as not to be covered when the picture is properly framed with a reasonable margin. (Before BENEDICT, J., Eastern District of New York, December 3d, 1866.)

THIS was an application for a provisional injunction, to restrain the defendant from making and selling photographic

Rossiter v. Hall.

copies of a copyrighted engraving called "The Home of Washington." The copyright was secured in 1863.

Charles Tracy, for the plaintiffs.

Ira D. Warren, for the defendant.

BENEDICT, J. This case comes before me upon a motion for an injunction to restrain the defendants from producing and selling photographs of an engraving known as "The Home of Washington." The papers read show that the engraving in question is a duly copyrighted engraving, owned by the plaintiffs, and that the defendant, by the photographic process, has produced a negative representation of this engraving, from which he prints photographs of it in various sizes, and is disposing of the same without the consent of the plaintiffs. This the defendant claims the right to do, upon the ground that the copyright laws do not forbid the making of photographs of copyrighted engravings.

The Act of February 3d, 1831, (U. S. Stat. at Large, 436,) in the first section, declares, that any person who shall invent, design, etch, engrave, work, or cause to be engraved, etched, or worked from his own design, any print or engraving, shall have the sole right and liberty of printing, reprinting, publishing, and vending such print, cut, or engraving, in whole or in part; and, in the seventh section, it declares, that if any person shall engrave, etch or work, sell or copy, or cause to be engraved, etched, worked, or sold, or copied, either on the whole or by varying, adding to or diminishing the main design, with intent to evade the law, such offender shall forfeit the plate on which such engraving, cut, or print, shall be copied, and shall further forfeit one dollar for every sheet of such print, cut, or engraving, which may be found in his possession.

The argument of the defendant is, that the exclusive privilege given by the first section of the Act, does not include the photographing the copyrighted engraving, because that is not