91' FEDER,AL,REPORTER. RAPHAEL
& SONS CO.
(Circuit Court of Appeals, Second Circuit.
December 7, 1898.)
No. 23. Fon INSERTING FJCTITtOUS NOTICE-SALE OF BOOKS. Rev. St. ..§ 4003, Imposing a penl\lty on any person who shall Insert or Impress a copyright notice In or upon. a book not copyrighted, did not, prior to Its amendment In 1897, apply to a person knowingly selling a book containing a fictitious copyright notice. where he did not make the book, nor ell.use the notice to be insertedl
S.A!>PEAL-ExCEPTION TO. DISCRETIONARY. RULING.
, ; Where the Only objection on an. offer of testimony was that the question was leading,. the ruling thereon was discretionary, and an ex'ceptlon saves no question for review.
In Error to the Circuit Court of the United States for the Southern District of New York. This was an action by Peter A.Ross against the Raphael Tuck & Sons Company to recover a penalty. Plaintiff brings error. A.Bell Malcomsonl for plaintiff in error. Lows C. Raegener, for defendant in error. B.efore WALLACE' and SHIP:ijA-N, Circuit Judges. WALLACE, Circui.tJudge. This isa writ of error by the plaintiff in the court beloW to review a judgment for the defendant enterednpon a verdict rendered by the ,direction of the trial judge. The action was brought for the [email protected]
BOWELL V. MIl,LER.
We are unable to distinguish the case from one of a sale in. country of a book by a person who has bought it knowing it to bear a fictitious copyright notice. The defendant did not make· the books, or insert the notice in them. They were the property of the London concern until it delivered them to the defendant. The London concern was not the agent of the defendant, but an independent contractor in causing the books to be printed; and the persons who impressed or inserted the notices in the books'were not the servants of the defendants. Penal statutes are not to be extended by construction to cover cases not within their plain meaning; and, if this statute had been intended to reach the case of a sale by a person of a book, knowing it to bear a fictitious copyright notice, that intention could have been easily expressed. As amended by congress in 1897, the statute subjects to the penalty every person "who shall knowingly issue or sell" any book bearing such notice, as well as every person "who shall insert or impress" such a notice. The case proved at the trial came within the terms of the new statute, but not within those of the pre-existing statute. There are three assignments of error in rulings excluding or admitting testimony. The question put to the witness Evans was properly excluded as calling for a conclusion of the witness, and he was allowed to state all the facts within his knowledge relating to the subject-matter. As to the two questions which the witness Gabriel was allowed to answer, there was no ground of objection stated except that the question was leading. An exception upon that ground is never tenable, because the ruling is discretionary with the trial judge. The questions, however, were relevant, and the answers elicited unobjectionable, and valuable testimony. We find no error in the record, and the judgment is affirmed, with costs.
HOWELL v. MILLER et aI. (Circuit Court of Appeals, Sixth Circuit. No. 621. November 9, 1898.)
JURISDICTION OF FEDERAL COURTS-SUIT TO PROTECT COPYRIGHT-INFRINGEMENT BY STATE AUTHORITY.
The eleventh amendment to the constitution cannot be invoked to debar the owner of a copyright from maintaining a suit to protect it from infringement because the defendants are acting in the matter as the agents of a state, and under its authority.
SAME-SUIT AGAINST STATE.
A suit to enjoin the publication, distribution, and sale of an edition of the laws of a state on the ground that it infringes a copyright held by the plaintitr under the laws of the United States is not a suit against the state of which a court of the United States cannot entertain jurisdiction, because the matter for such publication was prepared under direction of a state statute, and is owned by the state, and in its possession, and the defendants are officers and agents of the state, and proceeding in accordance with such statute.
COPYIUGHT-EXTENT OF PROTECTION-EDITION OF STATE STATUTES.
A compiler and publisher of an annotated edition of the statutes of a state may copyright his volumes, and such copyright will cover and pro91F.-9