Imágenes de páginas

, an assignment or rather transfer to him 18 or a license suf

ficient 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

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

18 Chicago Music Co. v. J. W. But ler 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 51; Lidell v. Copp-Clark Co., 19 Ont. Pr. 332.

24 Ibid.

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

454o. 1 Act of March 2, 1893, 27 St. at L. 531; U. S. v. Atlantic Coast Line R. Co., 153 Fed. 918.

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. 3

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 o nor the authority of the person who made the offer, nor whether the offer was in writing or by word of mouth,6 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

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4 U. S. v. Dwight Mfg. Co., 210 Fed. 74.

5 Ibid.

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ing stamp taxes, 2 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.5

§ 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.2 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.8 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 Bene 4 Ibid., $ 262, re-enacting U. S. dict, 368.

R. S., $ 716. See $ 469, infra. 2 U. S. v. Chamberlin, 219 U. S. 5 Ibid. In Stewart v, Justices of 250, 55 L. ed. 204.

St. Clair Co. Court, 47 Fed. 482, 3 U. S. v. Lyman, 1 Mason, 482, 484, Judge Philips said “By this is Fed. Cas. No. 15,647; Meredith v.. meant the mode of process in the U. S., 13 Peters, 486, 10 L. ed. 258. State where the United States Cir.

4 U. S. v. Sherman & Sons Co., cuit Court sits." Admiralty Rule 237 U. S. 146. But see U. 8. v. 12 of the Circuit Court of Appeals Rubin, 227 Fed. 938.

for the Second Circuit provides 6 U. S. v. Sherman & Sons Co., that "a writ of inhibition may be 237 U. S. 146, 158.

awarded by this court on motion of $ 455. 1 Jud. Code, $ 234, 36 the appellant to stay proceedings Stat. at L. 1087 re-enacting U. S. in the court below, when circum. R. S., $ 688. See $ 456, infra. stances require it."

2 Ibid. See $ 457, infra.

3 Kentucky v. Dennison, 24 How.

issues of process such as a warrant of arrest for service or execution in another district.6

The Revised Statutes provide that “all writs and processes issuing from the courts of the United States shall be under the seal of the court from which they issue, and shall be signed by the clerk thereof."'? This does not apply to a notice to a garnishee, 8 nor, it has been held, to a notice to a party which is the initiation of a suit,' or a proceeding, 10 such as a notice of a • motion for judgment 11 under the Code of Virginia 12 or a notice of the commencement of a proceeding to condemn land.13

It has been held in the Second Circuit that a rule of State practice which permits an attorney to issue a summons, subpæna, or other process without the seal of the court or the signature of the clerk, will not be followed by the Federal court; 14 and that a summons issued without such seal and sig. nature is void, and cannot be cured by amendment.15

Writs and process which issue from the Supreme Court and from the Circuit Courts of Appeals, must bear teste of the Chief Justice of the United States, or, when that office is vacant, of the associate justice next in precedence, and those issuing from a District Court must bear teste of the judge of that court or, when that office is vacant, of the clerk thereof.16 All process must bear teste from the day of its issue.17 It has been · held that a writ with the proper seal, but wrongly tested, may be amended.18 Where the State practice requires a summons to run in the name of the State, the summons, if properly tested, need not run in the name of the United States.19. In Porto

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6 Mitchell y. Dexter, C. C. A., 244 Fed. 926.

7 U. S. R. S., $ 911.

8 Wyle v. Cohn, 63 Fed. 759. See supra, $ 453.

9 Leas & McVitty v. Merriman, 132 Fed. 510.

10 Re Condemnation Suits by United States, 234 Fed. 433. See infra, $ 482.

11 Leas & McVitty v. Merriman, 132 Fed. 510.

United States, 234 Fed. 443. See infra, $ 482.

14 Dwight v. Merritt, 4 Fed. 614; Peaslee v. Haberstro, 15 Blatchf. 472. Contra, Chamberlain v. Men. sing, 47 Fed. 435.

16 Dwight v. Merritt, 4 Fed. 614; Peaslee v. Haberstro, 15 Blatchf. 472. Contra, Chamberlain v. Men. sing, 47 Fed. 435.

16 U. S. R. S., & 911.
17 U. S. R. S., 8912.

12 Code of Virginia, $ 3211.
18 Re Condemnation Suits by

18 U. S. v. Turner, 50 Fed. 734.
: 19 Chamberlain v. Mensing, 47

Rico all judicial process shall run in the name of “United States of America, ss, the President of the United States," and all penal or criminal prosecutions in the local courts shall be conducted in the name and by the authority of “The People of Porto Rico." 20

The District Courts have power to make rules and orders, not inconsistent with any law of the United States as to the return of writs and processes.21 When a rule of the District Court fixes the return day at the time described by the State statute, then in force, a subsequent change in the State law will not affect the Federal practice in this respect.22 This authorized those courts to direct that writs, issued from them, shall be returned within a different time than that prescribed by the State laws. 28

The plaintiff is not entitled to the entry of a writ which is returnable upon a wrong return day.24 An objection to a return day cannot be taken in the court of review unless it is the subject of an objection and exception below.26

Writs to seize articles that are an infringement of a copyright are regulated by the rules of the Supreme Court of the United

Fed. 435. It has been held that the power of the Federal Courts to issue the writ of capias ad satisfaciendum is derived from the Judiciary and Process Acts of 1789, and is not affected by the Illinois Statute of June 17, 1895. U. 8. v. Arnold, C. C. A., 69 Fed. 987.

20 39 St. at L. 954, Comp. St., 8 3803d. 21 U. S. R. S., $ 918.

22 Boston & Maine R. R. v. Gokey, 210 U. S. 155, 28 Sup. Ct. 657, 52 L. ed. 1002; Re Kinney, C. C. A., 202 Fed. 137.

28 Gokey v. Boston & Maine R. Co., 130 Fed. 992; aff'd Boston & Maine Railroad v. Gokey, 210 U. S. 155, 52 L. ed. 1002. U. S. v. U. S. F. & G. Co., C. C. A., 186 Fed. 477. In Massachusetts, the return days of original writs are the same as they

were under the State practice in
1793 and must be on the first day
of some term fixed by statute with
a test dated sufficiently in advance
of such return days as to afford due
opportunities for service. Re Kin.
ney, C. C. A., 202 Fed. 137. See
Elson v. Waterford, 135 Fed. 247.
Where a summons, returnable on the
first Tuesday of October next, was
not served until subsequent to the re-
turn day, it was held to be sufficient
to oblige the defendant to appear on
or before the first Tuesday next suc-
ceeding the date of service, although
the date of issuing the writ had not
been changed. Speare v. Stone, C.
C. A., 193 Fed. 375.

24 Kinney v. Plymouth Rock Squab Co., C. C. A., 214 Fed. 766.

25 Baker Contract Co. v. U. 8., C. C. A., 204 Fed. 390.

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