GLENN t:. FOOTE.
pursuance of an order made in the circuit court of Henrico county, Va., October 4, 1886, which order was as follows: "INTBE CIRCUIT COURT OF. THE COUNTY OF HENRICO, OCT. 4, '86· .. W. W. 61enn, A.dmr. &: othel's, against The National Express and T1'ansportation Company &: others. "Upon reading the petition of John Glenn, trustee, in respect to comproas mising the claim of the defendant company against Charles H. the hoider of two hundred and ninety-five shares of stock this day filed, together with the statements of said John Glenn, trustee, and of Edward Colston, Esq.· and the consent of a majority in value and number of the creditors of said company ascertained as prescribed by law, expressed in writing by and John Howard, Esq·· their counsel. it is ordered,that, Charles upon the payment to the said John Glenn, trustee, of the sum of twenty-two hundred and fifty dollars. and the court costs in the suit mentiuned in said petition. the said John Glenn, trustee, be, and he is herebY. authorized to execute and deliver to said Charles H. Kellogg an acquittance and dischll.fKe of all claim of the said company against him for or on account of his connection with said two hundred and ninety-five shares of said stock; to have such effect as is prescribed by the Act of assembly of Virginia, approved March 17, 1884, being chapter 472 of the Acts of 1883-1884, page 654. authorizing certain compromises to be made by fiduciaries with the sanction of a court of equity." · Thereupon Kellogg paid to the plaintiff the sum of $2.250. and was given a receipt in full satisfaction of all claims against him 011 account of the 295 shares of stock; and afterwards, on the 20th of January, 1887, the following entry was made in the journal of the United States circuit court for the Southern district of Ohio: "No. 3.873. It appearing to the court that this cause has been settled by the parties thereto out of court, and that as part of said settlement the said defendant agreed to pay the costs of "his case. it is now ordered that the said cause be, and the same is, dismissed, at the costs of said defendant. " (9) The 295 shares of stock on which the two assessments of 30 and 50 per cent. were made included the 195 shares which had been assigned by Kellogg to Foote. (IO) Tile Code of Virginia of 1860. allli remaining unrepealed in 1866, (chapter 57, § 24.) provides that" no stock shall be assigned on the books, without the consent of the company, until all the money which has become payable thereon shall have been paid; and in any assignment the assignee and the assignor shall each be liable for any installment which may have accrued, or which may thereafter accrue, and may be proceeded in the manner before provided, " (11) By the Virginia statute or 1884, under which the fiduciaries were authorized to make compromises with the debtors of the corporation, it was provided that "any compounding and compromise that may be made under this act,with any person claimed to be indebted or liable as aforesaid to such company, shall not in any manner impair the liability of any other person to the company. or jts creditors, on account of the contract or other cause of liability; but the amount so received on such settlement shall be credited on the same, excf'pt when the contract or other liability is joint, in which Case it shall be crediteu with the full share of the party released." The writ of summons in this case was served on the defendant, with a bill of particulars, on August 5, 1886.
George Biddle and S. H. Grey, for plaintiff. Alfred Mills and Barker Gumme:rle, for defendant.
WALF.s, J., (after stating the findings as above.) 'The questions arising on these facts are two: First, whether Kellogg arid Foote were jointly liable to pay the assessments, and the plaintiff's release of Kellogg discharged the defendant. Second, whether the causes of action declared on accrued within six years before the commencement of the action. I am of the opinion that the liability of the defEmdant to pay the assessment was several, and not joint, and that the release did not dis-charge him; and that the defendant, being the owner of 195 shares of the stock, was liable, under the charter of the company, for the price of said shares, and for such assessments at:! should be made by competent authority for the payment of any percentage thereon; and that, as the right of the plaintiff to sue for the collection of unpaid subscriptions depended upon the making of an assessment, the causes of action, declared on did not and could not aCcrue until after the making of the assessment of 30 per cent. by the decree of the chancery court of the city of Richmond, of December 14, 1880, and consequently that the present action, having been commenced within six years from that date, is not barred by the statute of limitations. The plaintiff is therefore entitled to a judgment for the full amount claimed by him, which is made up as follows: J. T. Foote, Assignee, in acct. with John Glenn, Trustee W. E. & T. 00. 1888. Aug. 3. 30 per cent. on shs. W. E. &, T. Co. stock, as per call Dec. 14, 1880 ordered by chancery Ct., city of Richmond. · $ 5,850 00 To 7 years, 7 mos.· 19 days' int., to Aug. 3. 1888, 2,680 28 To 50 per cent. on 195 sbs. W. E. & '1'. Co. stock, as per call of Mar. 26, '86 ordered by Cir. Ct. Henrico Co·· Va., 9,750 00 To interest to Aug. 3, '88. 2 yr., 4 mos., 7 da·· 1.376 38 1885. :Feb. 14. By this amt. paid by Charles H. Kellogg, assignor, on acct. of 30 per cent. call, 86,581 25 By into from Feb. 14, '85, to Aug. 3, '88, iI yr., 5 mos., 19 da., .. 1,370 00
o.ctober 18. By 195-295 of $2,250. pd. under compromise decree of Oct. 4, '86, on 295 shares, 1,48729 By into to Aug. 3. .'88,·from Oct. 18, '86.1 yr.· 9 mos.. 15 days, · 15996 By balance due trustee, · $10,058 16 $19,656 66 $19,656 66 1888. Aug. 8. Balance due trustee. 10,058 16 'It is ordered that judgment be entered for the plaintiff for theflaid sum of 810,058.16, with costs.
TROW CITY ·DIRECTORY CO. 11. CURTIN.
TROW CITY DIRECTORY CO. 11. CURTIN.
8. D. New York. December 1,1888.)
COPYRIGHT-ACTION FOR INFRINGEMENT-PLEADING.
A bill for infringinga copyright, which fails to aver that plaintiff delivered or mailed to the librarian of congress a printed copy of the title of the copy· right book. that within 10 days after its publication he delivered or mailed to such librarian two copies of the book, and that he inserted in each copy of the book published, on the title-page or page following. the words. "Entered according to act of congress. in the year - - , by A. B., in the office of the librarian of congress. at Washington," is fatally defective.
An averment that" the copyright was taken out by [plaintiff] previous tothe publication thereof. in full accordance with the requirements of the laws of the United States, "does not tender an issue of fact, but states a legal con· elusion, and is insufficient. A special demurrer to the parts of the hill which ask a court of equity to enforce penalties and a forfeiture, and for a discovery and delivery up to be destroyed of defendant's books. will be sustained.
SAME-SPECIAL DEMURRER;.....EQUITY-PENALTms AND FORFEITURES-ENFORCEMENT.
In Equity. On demurrer to bill. Bill by the Trow City Directory Company against Hugh A. Curtin for the infringement of complainant's copyright. Rev. St. U. S. § 4956, referred to in the opinion, provides that"No person shall be entitled to a copyright unless he shaH, before pUblication, deliver at theoftice of the librarian of congress, or deposit in the mail, addressed to the librarian of congress at Washington, District of Columbia, a printed copy of the title of the book * * * for whi'ch he desires a copyright, nor uoless he shall also, within teo days from the publication thereof. deliyer at the office:of the librarian of congress, or deposit in the mail addressed to the librarian of congress, at Washington, District of Columbia, two copies of such copyright book." Section 4962 provides that"No one shall maintain an action for the infringement of his copyright unless he shall give notice thereof by inserting in the several copies of every edition published, on the title-page or the page immediately following, * * '" the following words: · Entered according to act of congress, in the year - - - , by A. B., in the office of the librarian of congress. at Washington.'" H. Apl'ington, for complainant. E. N. Tafft, for defendant.
WALLACE, J. The demurrer to thc complainant's bill is well taken, and must be sustained as to each ground assigned. The bill of complaint is defective in failing to allege the perfonnance of the acts required by sections 4956, 4962, Rev. St. U. S., which are essential, and conditions precedent to the title of the proprietor of a copyright. Wheaton v.Peter8, 8 Pet. 591; JoUie v. Jaques, 1 Blatchf. 618; Parkinson v. La8eUe, 3 Sawy. 330; Music Co. v. Paper Co., 19 Fed. Rep. 758. The allegation that" the copyright was taken out by the said Trow City Company,