into the government for internal revenue or for loans or stocks."

It was also provided by the act of August 6, 1846 (§ 3616, Rev. Stat.): "All marshals, district attorneys, and other persons than those mentioned in the preceding section, having public money to pay to the United States, may pay the same to any depositary constituted by or in pursuance of law, which may be designated by the Secretary of the Treasury.'

4.

5.

The absence of the clerk's signature and the

seal of his office from a blank attestation of a release of part of a judgment, which is otherwise duly executed according to the requirements of the Arizona Revised Statutes, authorizing it to be filed in the supreme court, will not prevent the release from being valid and effective.

An appeal from a decree of a territorial court, which is for more than the jurisdictional amount, will not be dismissed because the decree would have been for less than the Jurisdictional amount if the territorial court had not erroneously disregarded a remittitur or release of part of the recovery; but the decree will be reviewed only to the extent of affirming the validity of the release or remittitur, and, thus modified, will be affirmed. [No. 16.]

It is obvious from these provisions that it was only public money of the United States of which national banks could be made depositaries, and it was therefore only public money which an officer could deposit in them, whether he received it originally or received it to disburse. This is the ruling in the Branch Case, and it is clearly applicable to Submitted October 10, 1899. the case at bar. By the seizure of the Teresita the title to her did not change nor the

title to the proceeds of her sale, pendente lite. That awaited adjudication, and whatever relations to such proceeds or responsibility for them the United States might have assumed if they had been deposited with an assistant treasurer, they did not become public money and subject to the statutes applicable to public money, and authorized to be deposited in a public depositary.

It is not without significance that when Congress authorized "moneys paid into any court of the United States, or received by the officers thereof, in any cause pending or adjudicated in such court," to be deposited with a designated depositary, it required it to be done in the name and to the credit of such court," and not to the credit of the United States. Act of March 24, 1871 (17 Stat. at L. 1, chap. 2).

vember 20, 1899.

Decided No

APPEAL from a judgment of the Supreme Court of the Territory of Arizona affirming a judgment for alimony in a suit for divorce, and erroneously disregarding a remittitur. Modified and affirmed.

Statement by Mr. Justice Gray:

The suit was commenced by a complaint filed October 6, 1894, in a district court of the territory of Arizona, by a husband against his wife for a divorce from the bond of matrimony for the cause of desertion on and ever since December 18, 1893. The wife's answer denied the desertion alleged, and set up desertion by the husband on and ever since December 14, 1893, as well as cruelty on his part.

The Revised Statutes of 1887 of the territory of Arizona, title 34, chap. 4, vest the jurisdiction of suits for divorce in the district courts of the territory, and the only provisions thereof touching alimony, counsel fees, or costs, are copied in the margin.t

Pending this suit, the wife, by her counsel, moved the court to order the husband to pay her the sum of $5,000 as provisional alimony to enable her to employ counsel and defend the suit. The court made no order on the motion until its final decision of the cause upon its merits; and then, on a review of the whole evidence (which had been taken

by a referee and made part of the record),

2114. The court pronouncing a decree of divorce from the bonds of matrimony shall also decree and order a division of the estate of the

parties in such a way as to the court shall seem just and right, having due regard to the rights of each party and their children, if any; provided, however, that nothing herein contained shall be construed to compel either party to devest him or herself of the title to separate property."

"2120. If the wife, whether complainant or defendant, has not a sufficient Income for her maintenance during the pendency of the sult for a divorce, the judge may, either in term time or in vacation, after due notice, allow ber a sum for her support in proportion to the means of the husband, until a final decree shall be made in the case."

"2122. The court may award costs to the party in whose behalf the sentence or decree shall

*163

165

Messrs. L. E. Payson, A. H. Garland, and R. C. Garland for appellants. Mr. William H. Barnes for appellee.

held that the suit could not be maintained, | for want of jurisdiction, "because the judg overruled a motion for a new trial, allowed a ment or decree, from which said appeal purbill of exceptions, and by a decree entered ports to have been taken, is the judgment June 13, 1896, adjudged that the complaint or decree of the supreme court of one of the be dismissed and the issues therein decided territories of the United States, to wit, the in favor of the defendant, and that she re- supreme court of the territory of Arizona, cover $750 counsel fees, and $150 a month affirming a judgment or decree of a district for her maintenance from December 14, 1893, court of said territory, dismissing a bill for amounting in all to the sum of $5,250, excludivorce brought by said appellant against sive of costs. On June 30, 1896, the husband said appellee in said district court, and appealed to the supreme court of the terri- awarding appellee alimony and counsel fees tory, and gave bond to prosecute his appeal. pendente lite; and for the further reason *The record of the supreme court of Arizona that the matter in dispute does not exceed (a copy of which, duly certified by its clerk, the sum of $5,000 exclusive of costs." was transmitted to this court) stated that on the 11th and 13th days of January, 1897, respectively, each described as "being one of the judicial days of the January term, 1897, of the supreme court of Arizona," orders were made fixing the times of filing briefs. The record then stated that "on the 26th day of January, 1897, a release of part of the judgment of the lower court for alimony was filed in said court in said cause by said appellee," and set forth a copy thereof, by which it appeared to have been signed by her attorneys of record, with no other attestation than this blank form: "Attest, Clerk of the Supreme Court of Arizona." And the release was indorsed by the clerk as filed on that day. By the release so filed and recorded, the wife "remits, from the judgment for alimony and counsel fees recovered by the said defendant and appellee against the plaintiff and appellant herein in this cause in the district court, all of the said judgment for alimony and counsel fees in excess of the sum of $5,000, to wit, the sum of $250."

The provisions of the Revised Statutes of Arizona of 1887, on the subject of the right of a party to remit part of the sum awarded by verdict or judgment, are copied in the margin.t

*On January 30, 1897, the case was submitted on briefs to the supreme court of the territory, and on February 23, 1897, that court affirmed the judgment of the district court for $5,250. The husband took an appeal to this court, which has been prosecuted by his executors since his death; and the whole case was submitted to this court on briefs.

The appellee moved to dismiss the appeal pass, or that each party shall pay his or her own costs. as to the court shall appear reasonable."

817. Any party in whose favor a verdict or judgment has been rendered [in the district court may in open court remit any part of such verdict or judgment, and such remitter shall be noted on the docket and entered in the minutes, and execution shall thereafter issue for the balance only of such judgment after deducting the amount remitted.

"818. Any party may make such remitter in vacation by executing and filing with the clerk a release in writing signed by him or his attorney of record and attested by the clerk with the seal of his office: such release shall constitute a part of the record of the cause, and any execution thereafter issued shall be for the balance only of the judgment after deducting the amount remitted."

Mr. Justice Gray, after stating the case as above, delivered the opinion of the court: The motion to dismiss this appeal for want of jurisdiction is made upon two grounds: 1st. That the decree appealed from is a decree dismissing a suit for divorce, and awarding to the appellee alimony and counsel fees pending that suit. 2d. That the matter in dispute does not exceed the sum of $5,000 exclusive of costs.

The Revised Statutes of the United States conferred on this court jurisdiction, upon writ of error or appeal, to review and reverse or affirm the final judgments and decrees of the supreme court of any territory except Washington, "in cases where the value of the matter in dispute [or as elsewhere described, "where the value of the property or the amount in controversy"], to be ascer• tained by the oath of either party, or of other competent witnesses, exceeds one thousand dollars," and, in the territory of Washington, two thousand dollars; and also in all cases in any territory, arising under the Constitution and laws of the United States, or in which the Constitution or a statute or treaty of the United States is brought in question; and in all cases upon writs of ha beas corpus involving the question of personal freedom. Rev. Stat. §§ 702, 1909-1911. By the act of March 3, 1885, chap. 355, except in cases in which is involved the validity of a patent or a copyright, or in which is drawn in question the validity of a treaty

"822. A remitter made as provided in any of the preceding sections shall, from the making thereof, cure any error in the verdict or judg ment by reason of such excess."

945. If in any judgment rendered in the district court there shall be an excess of damages rendered, and before the plaintiff has entered a release of the same in such court in the manner provided by law, such judgment shall be removed to the supreme court, it shall be lawful for the party in whose favor such excess of damages has been rendered to make such release in the supreme court in the same manner as such release is required to be made in the district court; and upon such release being filed in said supreme court, the said court, after revising said judgment, shall proceed to give such judg ment as the court below ought to have given if the release had been made and filed therein."

*166

*167

or statute of, or an authority exercised un-board." 21 How. 584, 16 L. ed. 226. And der, the United States, "no appeal or writ of from that proposition there was no diserror shall hereafter be allowed from any sent. It may therefore be assumed as injudgment or decree in any suit at law or in dubitable that the circuit courts of the Unitequity in the supreme court of the District ed States have no jurisdiction, either of suits of Columbia, or in the supreme court of any for divorce, or of claims for alimony, whether of the territories of the United States, unless made in a suit for divorce, or by an original the matter in dispute, exclusive of costs, proceeding in equity, before a decree for such shall exceed the sum of five thousand dol- alimony in a state court. Within the states lars." 23 Stat. at L. 443. This act has not of the Union, the whole subject of the domesrepealed the provision of the Revised Stat- tic relations of husband and wife, parent and utes giving an appeal from the supreme court child, belongs to the laws of the state, and of a territory in cases of habeas corpus. Gon- not to the laws of the United States. Re zales v. Cunningham, 164 U. S. 612, 41 L. ed. Burrus, 136 U. S. 586, 593, 594, 34 L. ed. 572, 17 Sup. Ct. Rep. 182. The act of March 500, 503, 10 Sup. Ct. Rep. 850. 3, 1891, chap. 517, transferring to the cir cuit courts of appeals the appellate jurisdiction from the supreme courts of the territories in cases founded on diversity of citizenship, or arising under the patent, revenue, or criminal laws, or in admiralty, has not otherwise affected the appellate jurisdiction of this court from the territorial courts. 26 Stat. at L. 828, 830; Shute v. Keyser, 149 U. S. 649, 37 L. ed. 884, 13 Sup. Ct. Rep. 960; Aztec Min. Co. v. Ripley, 151 U. S. 79, 38 L. ed. 80, 14 Sup. Ct. Rep. 236.

Under the existing acts of Congress, therefore (except in the cases so transferred to the circuit courts of appeals, and in cases of habeas corpus, cases involving the validity of a copyright, and cases depending upon the Constitution or a statute or treaty of the United States-none of which classes includes the case at bar), the appellate jurisdiction of this court to review and reverse or affirm the final judgments and decrees of the supreme court of a territory includes those cases, and those cases only, at law or in equity, in which "the matter in dispute, exclusive of costs, shall exceed the sum of five thousand dollars."

But those considerations have no application to the jurisdiction of the courts of a territory, or to the appellate jurisdiction of this court over those courts. In the territories of the United States, Congress has the entire dominion and sovereignty, national and local, Federal and state, and has full legisla tive power over all subjects upon which the legislature of a state might legislate within the state; and may, at its discretion, intrust that power to the legislative assembly of a territory. Shively v. Bowlby, 152 U. S. 1, 48, 38 L. ed. 331, 349, 14 Sup. Ct. Rep. 548, and cases cited; Utter v. Franklin, 172 U. S. 416, 423, 43 L. ed. 498, 500, 19 Sup. Ct. Rep. 183. In the exercise of this power, Congress has enacted that (with certain restrictions not affecting this case) "the legislative pow er of every territory shall extend to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States." Rev. Stat. § 1851; act of July 30, 1886, chap. 818, 24 Stat. at L. 170. The power so conferred upon a territorial assembly covers the domestic relations, the settlement of estates, and all other matters which, within the limits of a state, are regu

Cope, 137 U. S. 682, 684, 34 L. ed. S32, 11
Sup. Ct. Rep. 222.

In order to sustain the appellate jurisdic-lated by the laws of the state only. Cope v. tion of this court, under such an enactment, the matter in dispute must have been money, or something the value of which can be esti mated in money. Kurtz v. Moffitt, 115 U. S. 487, 495, 496, 29 L. ed. 458, 459, 6 Sup. Ct. Rep. 148, and cases there cited; Durham v. Seymour, 161 U. S. 235, 40 L. ed. 682, 16 Sup. Ct. Rep. 452: Perrine v. Slack, 164 U. S. 452, 41 L. ed. 510, 17 Sup. Ct. Rep. 79.

In support of the motion to dismiss this appeal because the decree below concerned divorce and alimony only, the appellee relied on Barber v. Barber, 21 How. 582, 16 L. ed. 226. In that case, a majority of this court held that a wife who had obtained against her husband, in the courts of the state of their domicil. a decree divorcing them from bed and board and awarding alimony to her, might sue the husband for such alimony in a circuit court of the United States held in a state in which he had since become domiciled. Mr. Justice Wayne, in delivering judgment, said: "We disclaim altogether any jurisdiction in the courts of the United States upon the subject of divorce, or for the allowance of alimony, either as an original proceeding in chancery or as an incident to divorce a vinculo, or to one from bed and

By the territorial statutes of Arizona, the original jurisdiction of suits for divorce is vested in the district courts of the territory; and their final judgments in such suits, as in other civil cases, may be reviewed by the supreme court of the territory on writ of error or appeal. Ariz. Rev. Stat. 1887, title 34, chap. 4; title 15, chap. 20.

As already observed, the motion to dismiss, in the case at bar, is made upon the twofold ground that the decree appealed from is one concerning divorce and aliniony only, and that it is for no more than $5,000.

The decree of the supreme court of the territory in favor of the wife includes the dismissal of the husband's suit for a divorce froin the bond of matrimony, and the award to the wife, upon her motion, of the sum of $5,250 for alimony and counsel fees.

So far as the question of divorce was concerned, the matter in controversy was the continuance or the dissolution of the status or relation of marriage between the parties, and the decree cannot be reviewed on this appeal, both because that was a matter the value of which could not be estimated in

168

•170

169

sole object in either case was to verify the act | 2. A decree establishing the validity of a

of the party; and when, as in this case, the release was executed by the party's attorneys of record, and was both filed and recorded in the supreme court of the territory, while the case was pending in that court, we are of opinion that the statute was so substantially and sufficiently complied with as to render the release of part of the judgment below valid, and to make it the duty of that court to give effect to the release, and, according to the express terms of the statute, "after revising said judgment," to "proceed to give such judgment as the court below ought to have given if the release had been made and filed therein."

3.

copyright, and determining that a railroad scene in a play, apart from the dialogue, is a dramatic composition and entitled to protec tion under the copyright laws, is conclusive on the parties in a subsequent action at law for damages for the infringement.

A suit for an injunction against infringement of a copyright, in which an accounting of profits is asked, but in which no evidence of profits is offered, or any decree or finding made concerning them, but in which a decree is made for an injunction only, does not con. stitute such an election of remedy as will preclude a subsequent action for the recovery of damages for the infringement.

[No. 52.]

If that court had duly given effect to the release, and had rendered in other respects Argued October 18, 1899. the same decree that it has rendered, the case would not have been appealable. This case is appealable because, and solely be

ber 20, 1899.

Decided Novem

cause, the decree rendered by that court is IN ERROR to the United States Circuit

for a sum of more than $5,000. If this court were to dismiss the appeal, it could not modify the decree appealed from, and the appellee would retain a decree, not only for $5,000, but also for $250 more, which she had legally remitted and released before that decree was rendered. If this court were to re-examine the merits of the case, the appellant would have the full benefit of an appeal which he could not have taken at all, had that court acted rightly in a matter wholly independent of those merits.

Court of Appeals for the Second Circuit affirming a decision of the Circuit Court in an action at law for damages for violation of a dramatic copyright. Affirmed.

See same case below, 51 U. S. App. 621, 83 Fed. Rep. 1007, 28 C. C. A. 253.

Statement by Mr. Justice Peckham: This was an action at law brought by Augustin Daly, and prosecuted since his death by the executors of his will, for the violation of a dramatic copyright. In 1867 Daly was the owner of a dramatic composi tion entitled "Under the Gaslight," and in that year he took out a copyright therefor in

the United States.

The just and appropriate way of disposing of the case appears to this court to be, to affirm the validity of the release or remittitur which the supreme court of the territory erroneously ignored, to leave the case as if The play was produced by Daly and his li that court had performed its duty in this recensees, and became quite popular, and he gard, and, without considering whether there derived considerable profit from its producwas any other error in the decree for ali- tion by himself and from the royalties he remony and counsel fees, to order that the de-ceived. The chief value of the play and its oree of the Supreme Court of the Territory of Arizona for $5,250 be modified so as to stand as a decree for $5,000, and, as so modified, affirmed, with costs.

popularity depended upon an incident in the third scene of the fourth act, commonly de scribed as the railroad scene, where one of the characters is laid helpless upon a railroad track upon which a railroad train is

Mr. Justice White and Mr. Justice momentarily expected that will run Peckham dissented.

(175 U. S. 148)

WILLIAM A. BRADY, Piff. in Err.,

v.

JOSEPH F. DALY and Richard Dorney, Ex ecutors, and Mary Daly, Executrix, of Augustin Daly, Deceased.

him

down and kill him, and just at the last mo. ment another of the characters contrives to reach the intended victim and drag him from the track as the train rushes in and passes over the spot.

After the play was produced, Dion Boucin which he introduced a railroad scene dificault prepared a play called "After Dark," fering but slightly and only colorably from that which appeared in "Under the GasDamages for violation of copyright act-light." The plaintiff in error, defendant benot penalty or forfeiture conclusiveness low, without the consent of Daly, produced of decree in equity.

and procured to be publicly performed on the stage in divers cities the play "After Dark," including the railway scene.

New

1. An action at law to recover damages for infringement of copyright under U. S. Rev. On the 20th of May, 1889, Daly brought Stat. § 4966, is not one to recover either a a suit in equity against the plaintiff in er penalty or a forfeiture, so as to make the juror herein, in the circuit court of the United risdiction of a district court of the United States for the southern district of States exclusive, but is within the provision York, in which he prayed that the defendant of U. S. Rev. Stat. § 629, subd. 9, giving to the circuit courts jurisdiction of suits at law might be perpetually enjoined from the furor in equity arising under the patent or copy. ther performance of the play "After Dark," right laws. upon the ground that the performance was

*149