18 F. 590 -

590

-- FEDERAL. REPORTER.

therefore wholly different from that of adismissli, without any examination of the merits, on the ground that the court has no power to make any adjudication on the subject. In the recent cases in the supreme court I understand that costs have been allowed. 3. Section!Y75 of the Revised .statutes expressly provides that "if any informer or plaintiff, on a penal statute, to whom the penalty, or any part thereof, if recovered, is directed to accrue, discontinues his suit or prosecution, · · · the court shall award to the defendant his costs." The act of 1875 is a penal statute, and the penalty of $500 provided by it accrues to the plaintiff, and this suit is brought by him to recover that penalty. The case is therefore directly within this section, and there is no such want of jurisdrction over the subject as can prevent its ap,plication in regard to costs, and the defendant is therefore entitled to costs upon this discontinuance.

'UNITEl> STATEg 'V. EASSON.

'Di,trl'ct Oovrt,

1. PosT-RoUTES-LETTER

S. D. New

York. June 22, 188S.)

3982, REv. ST.-REGULAR TRIPS.

. The streets of New York city being post-routea, section 39.92 of the Revised Statutes imposes a. penalty upon persQIllI makjng provision by express or otherwise for a delivery of lette1'8 by regUlar trips or at stated periods.

2. SAME-OABESTATED. 'fhe defendant, the propi-ietor' of' Hussey's Express, maintained a corps of messengers employed to collect letters daily from the offices of his customers, prepaid by private stamps sold beforehand for that purpose, to take the letters as collected to his central office, there over alllettelll received, make them up into packages, and dispatch them by messengers from once to thrice daily. Held, such deliveries were .not by .. messenger employed for the particular occasion only," but were deliveries" by regular trips, and at stated periods/' within. the meaning of the statute, for which the defendant was liable to tJl8 statutory penalty.

Action fdr Penalty under section 3982, Rev. St. Elihu Root, U. S. Dist.. Atty., for the United States. Rastus S. Ran801n, for defendant. Before Hon;ADbIBON BROWN, J.,and a jury. Upon plaintiff's motion to direct a verdict, the court said: 1:t has been recently decided in the circuit court of this district that the streets of this city are "post-routes" within the meaning of section 3982 of the Revised, Statutes. Blackham v. Gresham, 16 FED. REP. 609. In my. judgment the of section "by trips. or at stated periods,,, apply to .and qualify the first clause of that section, as weHas the second. Them..eaning is that: "no person shall establish express for the conveyance of·.letters or packets make by regular trips or at s.tated pe:riods, or in any other provision for suoh conveyance by regular trips or at,stated periods,'''

UNITED STA.TES V. EASSON.

591

There is no doubt, upon the evidence, that the defendant has estab· lished or made provision for the conveyance of letters or packets. It is also a private express, in the sense of the statute, because it is owned and managed by a private person for his private benefit or profit, and not as a branch of the public service or under goverrtment control. The only question remaining, therefore, is whether this ex· press is for the conveyance of letters or packets "by regular trips or at stated periods." Upon this point the question is, "What,was the mode of doing this business?" Was it a part of the design, and wa.s it the practice, to deliver letters by regular trips or at stated periods 'I Section 3992 throws some light on the interpretation and meaning of section 3982 by the exception which it makes, viz., excepting the conveYl\nce of letters by "special messenger employed for the particular occasion only:: If the only mode of doing this business-the only mode of sending , these letters by the defendant-was through special messengers employed for the particular occasion only, then the verdict shonld.be for the defendant. But the messengers in this case were not employed by Mr. Easson for the particular occasion only, i. e., a special em· ployment to carry each letter, but for daily service as a regular business. The different modes of doing business which the statute contemplates, are clea!-"ly shown in the evidence of, ,the witness Van Zandt, i. e., "He sunimoned a messenger from the American District {Jompany, and sent the own particular errand." That is an example of the conveyance of letters by "special messenger employed for the pa.rticularoccasion only." The colleetionof letters in a central office and the delivery of through carriers employed for the purpose, in the manner shown in this cll,se, where the understanding of customers is, and the business is £0 designed and arranged, that such deliveries shall be made daily over the streets of the city wherever such letters are directed, constitutes a business for a delivery by regular trips and at stated periods. ,There is no controversy here as to the facts. which belong to that branch of 'the " , defendant's business. For the evidence in this case shows, without contradiction, that a part of the defendant's business was to employ a corps ofrriessellgers for the purpose of going about the city to stores alid offices of all his customers, collecting letters daily, generally two or three times a day, for delivery anywhere between the battery and Harlem; that stamps similar to postage stamps were furnished and sold to such customers, beforehand, which,on being affixed to the letters, entitled them to delivery by the defendant according to the course of his ,business; that' the course of his business was to bring all letters:',thus' collected' to t,he defendant's office, then,sorUhem out into packages, making up ·convenient routes for delivery, and then dispatching them by sengers sent Ol,lt for thatpnrpos8. TheElemess.engers. usually made tln:eecollections-and deliveries daily. Several thousand, letters were ,. .

--

592

FEDERAL BEPORTE&

usually thus collected and dellvered every day. No one messenger went on tue errand of any particular person, but he took on his route all the letters of all the persons whose letters had been brought to the llentral office, which on distribution were going to lL particular portion of the city. From 20 to 40 messengers were thus in constant employment. To constitute regularity it is not essential that the minute or hour of the departures of the messengers should be always the same. Provision for a delivery daily, once, twice, or thrice, as the case may be, over the streets of the city, wherever wanted, is a provision for a delivery by regular trips and at stated periods; and as the branch of the defendant's business above described is plainly not within the exception of the statute, i. e., is not a conveyance of letters "by special messenger for the particular occasion only," upon the view of the law entertained by the court, there is no material question of fact in dispute to submit to the jury, and lL verdict must be directed for the government. See Retzer v. Wood, 3 Sup. Ct. Rep. 164, U. S. Sup. Ct. Nov. 12, 1883.

DONNELtEY and others v. IVERs and another·
(CirCUit Oourt, 8. D. New York.

.

March 4, 1882.)

COPYRIGHT-VARIANCE BETWEEN TITLE OF BOOK AS DEPOSITED AND AS PUB. LISHED-REV. St. § 4956.

A firm deposited in the office of the librarian of congress the title of a book, in the following words: ,. Over One Thousand Recipes. The Lake-Side Cook-Book; a Complete Manual of Practical, Economical, Palatable, and Healthful Cookery. Chicago: Donnelley, Loyd & Co." The title with which the book was published was, "The Lake-Side Cook-Book, No.1, a. Complete Manual of Practical, Economical and Pnlatable and Healthful Cookery. By N. A. D.,"-followed by the imprint of the place of publication and the name of the proprietor, and the notice of the copyright on the title-page. Held, that the variance was not material, and the title published was deposited in compliance with Rev. St. § 4956.

In Equity.

Ja-mes Watson, for plaintiff. Robertson, Harmon d: Cuppia, for defendants.
& Co., a copartnership firm, deposited in the office of the librarian

BLATCHFORD, J.

On the nineteenth-of April, 1878, Donnelley, Loyd

of congress the title of a book, the title or description whereof was in the following words: "Over One Thousand Recipes. The LakeSide Cook-Book; a. Complete Manual of Practical, Economical, Palatable, and Healthful Cookery. Chicago: Donnelley, Loyd & Co, 1878, "-the right whereof they claimed as proprietors in conformity with the laws of the United States respecting copyrights. Whatever right and title the firm acquired in the copyright it subsequently as-