Bullinger v. Mackey. BENEDICT, J. This case comes before the Court upon a motion, on the part of the plaintiff, to be allowed to file a replication and take proofs, after a hearing had upon bill and answer. The action is brought to protect a copyright which the plaintiff asserts in a certain weekly business journal, called "The Counting House Monitor," which copyright he alleges the defendant has infringed by issuing certain publications known as "The A. B. C. Guide." The cause was brought to a hearing by the plaintiff upon bill and answer, when it appeared, and was held by the Court, that the answer contained a sufficient denial of the authorship of the work set forth in the bill as copyrighted. Accordingly, the bill was dismissed. Before the entry of a final decree dismissing the bill, the plaintiff presents his petition to be allowed to file a general replication and take testimony, offering to pay the costs of the cause up to this time. This petition is supported by an affidavit of the plaintiff, that he is able to prove the allegations of his bill. No other facts are relied on to support the application, and the sole reason assigned for the application is, that, inasmuch as this action has been commenced and the answer filed, if it is allowed to proceed, the necessity of bringing another action, for the purpose of obtaining a decision upon the validity of the plaintiff's copyright and its infringement by publications which the defendant continues to issue, will be avoided. I do not think the reason sufficient. The plaintiff, with his eyes open, deliberately elected to try the cause upon bill and answer. No mistake or inadvertence is suggested. The plaintiff selected his time and mode of trial, and put the defendant to the expense of a hearing, to reimburse which the meagre costs allowed by the laws of the United States are wholly inadequate. If the decree rendered upon the hearing so had is of any benefit to the defendant, I see no reason why he should now be deprived of such benefit. Certainly, the plaintiff cannot ask that the result of a trial procured by him, and which has put the defendant to cost, should now be set aside, to the detriment of the defendant. On the other hand, if no benefit can accrue to the defendant from the decree that has been ren Herbert v. Butler. dered, it is not seen what injury can result to the plaintiff by allowing the decree to stand. The motion is denied. Oliver Wells and Thomas William Clarke, for the plaintiff. George W. Lord, for the defendant. JASPER K. HERBERT VS. BENJAMIN F. BUTLER. After a lapse of two and a half years, this Court refused to allow a bill of excep. tions to be signed and filed, no step looking to that end having ever been be fore taken, and a writ of error in the case being pending in the Supreme Court. (Before BENEDICT, J., Eastern District of New York, December 5th, 1877.) BENEDICT, J. This cause was tried before the Court and a jury at the May term, 1875. During the trial various rulings were made by the Court, to which exceptions were taken and then noted. At the close of the testimony, the Court directed a verdict for the defendant, to which direction the plaintiff then excepted. Under the direction of the Court the jury found a verdict for the defendant, and judgment was then entered in favor of the defendant, for costs. Neither at that time nor since was any application made for a stay of proceedings upon the verdict. Nor was any consent ever given, nor order ever granted, giving time either to make a bill of exceptions, or to make a case and turn the same into a bill of exceptions. Until now no application was ever made for the allowance of a bill of exceptions, nor has any bill of exceptions been presented for settlement and signature. On the 23d of June, 1875, a writ of error was duly issued and served, and thereafter the record, with the case to be hereafter referred to, was transmitted to the Supreme Court of the United States, where it remains. On September 19th, 1875, a case, bearing the endorsement: "Agreed to, Develin & Miller, Att'ys for Herbert v. Butler. defendant," was presented to the Judge who tried the cause, who then, upon the request of the defendant, wrote thereon, below the said endorsement, the further endorsement: "Settled as within, pursuant to the above consent." As before stated, this case has been transmitted to the Supreme Court, as part of the record. In this position of the cause the plaintiff moves the Court for an order directing the signing, sealing and filing of a bill of exceptions herein, as of the 1st day of June, 1875, and presents the case above referred to to be now signed and sealed as a bill of exceptions. The motion is opposed by the defendant, mainly upon the grounds, first, that it was never consented, in behalf of the defendant, nor ordered by the Court, that the case might be turned into a bill of exceptions, and that, in the absence of such consent or order, the Court, now, after the lapse of several terms of the Court, is without power to make such an order in the cause; second, that the cause has been removed from this Court to the Supreme Court of the United States, and that, until the record shall be transmitted by the Supreme Court to the Circuit Court, the latter Court can make no alteration of the record. I am constrained, by the authority of decisions of the Supreme Court of the United States, to deny this motion. This case differs from the case of Williamson v. Suydam, (4 Blatchf C. C. R., 323, and 20 How., 427,) relied on by the plaintiff. In that case, the right to make a case and to turn the case into a bill of exceptions was reserved at the trial, while, here, no such right was reserved, nor any such permission given. In United States v. Breitling, (20 Howard, 252,) the signing of a bill of exceptions after the term was upheld only upon the ground that a consent to extend the time of settling a bill of exceptions was to be presumed from the circumstances of that case, but with the announcement from the Supreme Court, that "that case went to the extreme verge of the law upon this question of practice." (Müller v. Ehlers, 1 Otto, 249.) The case last cited is decisive of the present application. In that case, an ex parte order, directing a bill of exceptions to be filed as of the date of the trial, was treated as a nullity, for Herbert v. Butler. want of power. In this case, the application is the same, but the defendant has notice of the application, and appears, to deny the power of the Court to grant such an order. The order applied for, if granted, would also be a nullity, because the term at which the trial was had and the judgment rendered was allowed to end without any steps whatever being taken towards the allowance of a bill of exceptions, or to obtain an extension of time for that purpose, and there is no circumstance from which to infer a consent to such an extension. It is true, that a case was agreed to by the defendant after the expiration of the term, but a case is not a bill of exceptions, and cannot be turned into a bill of exceptions unless an order is made to that end, and, in pursuance of such an order, the bill of exceptions is duly signed and sealed. And, according to the decision of the Supreme Court, the power to sign and seal a bill of exceptions in this cause ceased with the term at which the cause was tried. I notice, indeed, that it is intimated by the opinion delivered in Müller v. Ehlers, that, "under very extraordinary circumstances," the power to sign and seal a bill of exceptions may be exercised after the expiration of the term, but the action of the Court upon the circumstances of that case appears to forbid me to consider the circumstances of the present case as sufficient to justify the order now applied for. If the correctness of my understanding as to the rule intended to be laid down by the Supreme Court of the United States is doubted, the plaintiff may think fit to disclose to that Court the facts attending the case, upon an application to the Court to have the record transmitted to this Court, for the purpose of obtaining an allowance of a bill of exceptions, and the signing and filing of the same, in which case a direction by the Supreme Court that the record be transmitted for such a purpose would imply the existence of power in this Court, under the circumstances of this case, to grant the relief sought, and would dispose of both the grounds of objection that have been taken to any action of this Court at this time. The C. F. Ackerman. The motion must be denied, with liberty to renew the same in case the record be transmitted as above indicated. John H. Bergen, for the plaintiff. John E. Develin, for the defendant. THE C. F. ACKERMAN. In a suit in rem against a vessel, brought in the District Court, the vessel was discharged from custody, in that Court, on a stipulation for value. On appeal, a decree was rendered by the Circuit Court for the libellant, with a direction that the two stipulators for value pay into that Court the amount of such stipulation. One of the stipulators having died, the libellant applied for the entry of a summary judgment against the other stipulator, for the amount of the decree, and for execution against him. It was objected, that the libellant had not exhausted his remedy against the claimant of the vessel, and that the death of the one stipulator defeated the right of the libellant to execution against the survivor: Held, that the application must be granted. (Before BENEDICT, J., Eastern District of New York, December 21st, 1877.) BENEDICT, J. This is a proceeding in rem, which has been carried by appeal from the District to the Circuit Court, and there decided in favor of the libellants. While the case was in the District Court, the vessel was discharged from custody, upon a stipulation for value, which stipulation, accordingly, took the place of the vessel. Upon the determination of the case in the Circuit Court, it was there ordered, adjudged and decreed, that, in pursuance of the terms of the stipulation for value herein, given on the discharge of said steam tug from custody herein, Thomas Kenny and Erick P. Lindahl, the stipulators named therein, pay into this Court the amount of their stipulation, and that the libellants have execution to enforce this decree. The libellants, now, upon proof of failure to pay the decree and of non-performance of the stipulation, upon due notice, ask for a summary judgment against Erick |