the cOn<llusion that if the contract for services in defending it was made prior to filing the amended petition against her, it would be provable. I have not a doubt, on this proof, that such was the hct, and the action of the register in allowing the claim will be sustairred." May 24, 1882. HAMMOND, J.
NOTE. Consult Bump, Bky. (10th Ed.) 82, 572. and notes; Re Pattl!'rson, 1 N. B. R. 125; Re Williams, 2 N. B. R. 229; Re Williams, Id. 83; Re Bigelow, rd. 371; Re Waite, Id. 452; ReSchwab, Id. 488; Re Montgomerg, 3 ,N. B. R. 137; Re Brown,Id. 584; Re New Y01'k Mail Steam-ship 00. Id. 627; Re Sawyer, 5 N. B. R. 54; Re Oomstock, Id. 191; Re Jaycox,7 N. B. R.l40, 142; Re Riggs, 8 N. B. R. 90, 92; Re Andrews, 11 N. B. R. 59; Re Portsmouth Savings SocietY,Id. 303;Re Riker, 18 N. B. R. 393; Re Orne, 1 N. B. R. 57; S. C.l Ben. 361; Re Bigelow,a Ben. 146; Re Bruce, 6 Ben. 515; Re May, 7 Ben. 231; Re Hamburgher, 8 Ben.l89; Re Hatje, 6 Biss. 436; Triplett v. Hanley, 1 Dill. 217; Re Oommercial Bulletin 00. 2 Woods, 220; Bailey v. Loeb, Id. 578 ; Wylie v. Smith, Id. 673.
(Circuit Oourt, 8. D.Ne'llJ York.
COPYRIGHT AND INVENTION - TRANSFER VENTOR-RIGHTS UNDER CONTRACT.
EMPLOYMENT OF AUTHOR AND 11.-
Plaintiff engaged his services to defendant for period of ten years as an author and inventor, and stipulate'd that the property in his productions should belong exclusively to defendant, including his time and services, in consideration of $5,000, to be paid to him annually, and certain other contingent provisions as to compensation. Held, that such a contract, and the transfer to defendant made in pursuance thereof, invested with the exclusive property in the play copyrighted, and in the patented invention of the plaintiff contemplated in the terms of the engagement or contract.
2. SAME-TITLE-RIGHT TO USE OF.
In such a contract there is no condition precedent or subsequent wllich can be invoked to defeat defendant's title or reinvest plaintiff with any internst in the property, nor can he interfere with defendant's usc of the property by injunction, or against defendant's wishes to use them himself.
Scudder <t Carter, for M. H. Mallory. W. F. Scott and F. N. Bangs, for Mackaye.
WALLACE, C. J. The parties seek each to restrain the other by a preliminary injunction .from exhibiting the play copyrighted by tLe title of Hazel Kirke, and from employing the mechanical device known as the "double stage," secured by letters patent of the United States.
MACKAYE V. MALLORY.
Each founds his claim to relief upon an agreement made between them in July, 1879, which agreement each party insists has been vhlated by the other. By that agreement Mackaye engaged his services to Mallory for the period of 10 years, as author and inventor, and stipulated that the property in his productions, and all the income and receipts atising therefrom, should belortg exclusively to Mallory. He further agreed that :histime and services, as suoh' authO'iPWn'd inventor, should. belong exclusively to Mallory, ahd sholildbe devoted in such manner as Mallory might direct, and that' hew6u'ld1l'ot use'or permit any person to use any play, dramatic wotk,'-orJinvention produced by him without the consent of MMlory. Mallory; his part, agreed to annual ;salary of!.$5;OOO,an'd aHeHhe profits from the dramatic' enterprises in ;which should be employed by Mallory should reimburse tures, and $30,000'in addition; this salatyw'lis equal to :one-fourth of the linnual profits. The 'fligireeilieht pfolvided that Mallory should hate the right to: tetfuinil:tetlie;"6britbidtkt the termination oh1ny one year of the contta:ct period; htttih'lo terminated, then Mallory' should pay Mackitye one-fourth 6f ,the cash earnings'which might have then after reimbursing'Ma1l6ry for his expenditures and interest thereon. It was also a conditibn 'hf the contract that the sums thus t'o be paid should be by Mackaye as full compensation for all copyrights, hiventi6ns, royalties', income, and receipts. Proceeding urider this contract, Mackaye produced the play of Hazel Kirke, and obtained a copyright for it, and invented and obtained letters patent for the detice of the double stage, and assigned the copyright and letters patent to Mallory, while MallClry upon his part expended large sums of mohey in theater property, and in thectirrent expenses of the presentation and performaneeof Hazel Kirke, and received large returns from the exhibitibnof the drama. After the expiration of themst year of the contract, Mackaye insisted that Mallory should furnish him with a' statement of accounts; and September 1, 1880.. Mallory furnished to'Mackayea memorandum showing receipts.am.ounting to $102,858. Thereupon differences arose between the parties. It is only necessary for present purposes to refer to those which relate to the correctness and fairness of the accounts kept by Mallory, and as to those it is sufficient to say that the merits of the controversy cannot be satisfactorily determined upon the affidavits read, and should not be adjudicated upon this motion.
The controversy upon the statement thus made is sufficiently pre· sented to exhibit the legal and equitable rights of the parties so far as they are to be determined now. It may be that upon accounting a larger sum will pe found to he Mackaye's just· proportion of the profits than Mallory.assumes to. be .due to him; but the court cannot make a new contract in substitution of the one which the parties made for themselves. That contract, as well as the transfers made in pursuance of it,· invested Mallory with the .exclusive property in the play and in the patented invention. He was at liberty from the outset to and the patented <\.evice as he saw fit. He had the use the legal right to give them away or to consign them: to obscurity·. His contract with Mackaye was to pay the latter a fixed sum by way of salary, and ,& further contingent sum, the amount of which was to dep.,nd solely:opon Mallory's option. Undoubtedly, Mackaye expected that Mallory wovldso employ the property that both parties would profit by it ibut the contract carefully excludes the former from any fulfilment of. such an expectation. There is right to can be no condition precedent or subseqllent, in the invoked to defeat Mallory's reinvest Mackaye .with any interon his part est in the property. If Mallory has refused to those conditions, of the contrae:t that were to be performed subsequently, Mackaye's remedy is by pis action for damages.. The nature of ·the trapsferred qy theC9ntract does not. the legal rights of the parties. It is not material that its value is difficult to estimate, or that it was the production of intellectual effort. It suffices that Mackaye's right to tb,l;) compensation under the agreement rests in covellant, for the breach:of which he has .aremedy upon the himself with the title of the property contract. He cannot Ha1tshorn v. Day, 19 How. 211. As Mackaye has no interest in the drama or the patent, but only in the profits which may arise from Mallory's use of theD;l according to the latter's discretion,:M;ackaye cannot interfere with Mallory's use of them by an injunction, fmd cannot be permitted, against Mallory's wishes, to use himself. An injunction. is granted to Mallory and denied to Mackaye.
, , !
TUEl·· MONTE A·.
(Dilflrict Oourt,S. D. Ncw York; June-G, 1882.)
ADMIRALTY JURlSDICTION-l'rllRITIME (JON'rRACTs-AFJ'REIGHTMENT.
Chltrter-parties and contracts,of affreightment are maritime contracts, nnd, by their subject-matter, within the admiralty jurisdiction.
2. SAME-BR,EACH. OF-ACTIONS ON.
For the breach of such contracts, if wholly executory, and no part of the performance of the contract has been entered upon', no maritime lien exists upon the vessel, and an action in rem will not lie, but only an action in peraonam, against the master or owners.
AOTIONB-JOINDER OF-RULE 46-PRACTlCE. Under rule 46 of the supreme court rules in ,admiralty
an action in rem may be joined with an action in per8()nam against the master or owners for breaches of contracts) of affreightment or charter-parties. The same is true in other cases not expressly provided for under the supr.eme COlu;t: rules in accords!W6 with the prior and subsequent pr.actice of the district
4. PRACTICE-AMENDMENT OF LIBEL.
In cRseswhere such actions tuay be conjoined in, the same libel, If the action be improperly brought in rem, held, that the court has jurisdiction of the subject-matter of the controversy and of the proceeding, ,and that it is competent process and judgfor the court to permit an amendment of the ment in per80nam against the owner after he has appeared and contested the suit in, rem upon the merits, there being no change in the subject-matter of the controversy; and the court should per,mit such an if d8$ired, much te!ltimony has been taken upon the merits in the proceeding in rem,when the latter will not lie for want of a lien.
5. SAME-JUDGMENTB-lN PERSONAM.
A judgment in per80nam cannot ordinarily be entered in B!!ult In rM71 eXMpt upon amendment and the issue of new llrocesa or the general appearance of the owner in per8()nam.
6 SAME-AMENDMENTS. " ,
A general appearance in an action in rem is limited by the nature of tbll action and the property seized.
. Where the }:(onte A. had been chartered to the libellant to proceed to Balti· more to take a carltP, but subsequently refused togo there, and the libellaq,t thereupon sUed in rem for damages, and the libel showed such refusal on its face, and the owner appeared and answered the,merits, denying the alleged of the action, and testimony was charter-party,. bv.t not objecting to taken upon the merits, and after two years, upon the calling of the case on the calendar for heating, the objection to the form of the: action was first, taken, the vessel .having been bonded at the commencement of the action, held, that the objection that there wI'S. no lien on the vessel, and that. the action in rem , would not lie, was not waived; ,that no decree be prolJ-ounced, and that the sureties on the bond must be held discharged; Held, al8o, that the libellant should have leave to amend the libel by ineertlng,p :prayer for further process 'and juqgmentinperBornam, .and thereupon the Qiight JJe fW,'tber hea.rd on the prpofs t*e:n, 'l1y:g 8u;h as. be deslred; costs not allowed, the objectIOn bemg unreasonably delayed.