894""
' 'FEDERALREPOn:tE:a, vol. 54.
whether an exhibition of aphotogra,ph for the'p1ll'llbae .9n1yof·exhibition,andnot for. sale,and the delivery of t6 the sitter in with.' contract between her and the 'author, but. not for sale, constituted a publication. The only' sati$factory evidence is that, as soon as the photographs known as 94" were completed, two copies were sent to the librarian. Upon this state of facts, an examination of the proper conclusions of law fromahother set of facts becomes not only needless, but unprofitable The appellant claims that a decree for an accounting is erroneous, because the only peeuniary remedy which has been provided by statute for the author is an action at law for a forfeiture, and for :'. penalty.. Section 41970 eonfers upon· circuit courts the power, upon bill in equity, to grant injunctions to prevent the violation of rights SeClll'ed 'by the laws respecting copyrights. "The right to an account of p1'6fitl!l is incident to the to an injunction in copy andp.atent right cases." Stevens v. Gladdmg, 17 How. 447; Belford v. Scnbner, 144U. S. 488, 12 Sup. Ot. Rep. 734. other assignments of errors do not call for any comment. The decree the circuit court is affirmed.
:AIKEN et al. v. SMITH. (CIrcuit Court of Appeals, Fifth Circuit. December IS, 1892.) No. 54L
An 'admiralty aliPcal should be <'llsmlssed as to certain of the appellantt when there is nothing In the record to show that they are privy to the BUlt except a statement In their unsworn petition for appeal that they are owners of Interests In the vessel; but such dlsmlssal should not affect the appeal so far as proper parties thereto are concerned, the misjoinder not prejudicing the appellee. SAME.
2.
The master of a llbeled vessel who enters a claim stating that he Is the lawful bailee of the owner named In the clnlm, and who gives a release bond with surety, may alone appeal from the decree of the trial court and thereby bring the Whole case before the appellate court, though the owner and surety both appear of record, and may join In the llppealif they wish, Hardee v. Wilson, 13 Sup. at. Rep. 39, 146 U. S. 179, dlstln· guished.
Appeal from the District Oourt of the United States for the Eastern District of Louisiana. In Admiralty. Libel by Oharles Smith against the steamboat Whisper. W. E. Barre, master, entered a claim stating that he was the lawful bailee of the owner,John F. Aiken, and executed a release bond with Bernard H. Menge as surety. A decree was rendered for libelant. Aiken, Barre, and Menge appeal, together with J .. B.. Woods and others, stylinll: themselves "owners" of the steamboat. On motion to dismiss appeaJ. Granted as to the latter defendants. John D. Grace, for appellants. Richard De Gray, fot appellee.
AIKEN 11. SKITH.
895
Before PARDEE and District JUdge.' -
Oircuit Judges, and LOOKE.
PARDEE, Circuit Judge. This suit was instituted in the court below by a libel brought by appellee against the steamboat Whisper, and against all persons intervening for their interest therein in a cause of subtraction of wages and damages, civil and maritime. Ad· miralty process having been issued and served, and the steamb.oat Whisper seized, the following claim was entered: "And now comes W. E. Barre, master, who on oath states that he is master of the steamboat Whisper, and that John F. Aiken is the managing owner thereof, and deponent is lawful ballee of the owners, and prays for the reo lease of the vessel on bond."
Release-being ordered on the said claim, a release bond was given, signed by William E. BaITe, master and bailee for owners of the steamboat Whisper, with Bernard H. Menge as surety. A sworn an· swer was1:lled in the cause by John F. Aiken, styling himself "claimant and managing owner of the steamboat Whisper." Upon the issues made by the libel and this answer, the cause was heard, and a decree rendered as follows: "It is therefore ordered, adjudged, and decreed that the libelant, Charles Smith, do have and recover from the steamboat Whisper the sum of five hundred and six dollars and seventy-five cents, as follows: $6.75, amount tendered by claimant for wages due; and $500, damages,-with legal Interest
from judicial demand and costs of suit. And whereas said steamboat Whisper was released from seb;ure and restored to her owner on giving bond with William E. Barre. liS roaster thereot lind lawful ballee tor the thereof, with .John F. Aiken, as prlnclpal, and Bernard H. Menge, as surety, It lit further adjudged and decreed that the said William E. Barre, master and lawful balleeot the owner ot the -steamboat Whisper, principal, and Bernard H. 'Menge, as surety, be condemned In solido to pay the toregolng judgment, with Interest at the rate ot five per cent. per annum trom judicial demand, .md costs of suit."
From this decree an appeal was taken to this court by John F. Aiken, J. B. Woods, Thomas K. Voorheis, E. J. Comeaux, and Walter Comeaux, styling themselves "owners of the steamboat Whisper," and by Bernard H. Menge, surety on the bond for the release of said steamboat Whisper, and by William Barre, master and lawful bailee of said steamboat. Appellee moves to dismiss as follows: "First. As to all appellants, because clalmant has taken Into the appeal herein other parties than those who are parties to this suit, viz. J. B. Woods. Thomas K. Voorheis, E. J. Comeaux, and Walter Comeaux, and has appealed jointly with them. Second. And, In case the above should be overruled, then he moves to dismiss the appeal herein as to said J. B. Woods, Thomas K. Voorheis, E. J. Comeaux, and Walter Comeaux, because neither of them are parties to this cause, and there is no judgment against them or either of them. ThIrd. And, In case neither ot the above are allowed, then appellee moves to dismiss said appeal as to John F. AIken, because there is no judgment qalnst him or In his favor."
peal therefrom.
A person not a party nor privy to a judgment or decree cannot apEx parte Cutting, 94 U.S. 14; Guion v. Co., 109 U. 13.173, 3 Sup. Ct. Rep. 108; Elwell v. F<lEIdick, 134 U.S. 513, 10 Sup. at. Rep.59B.
896
REPoRTER,vol. 54.
Iris aPPlIretlt,:th:MJ.nlWdods,Thomai ]r:i V 60rheis, E. J.' OOIneaux, and Walter Comeaux were not parties to the stilt in the court below; and there is nothing ill the record to ,sllow are prlvyto the said'stiit,except that in the unsworn petiti9n ,f(lr appeaT they are styled "owners of the steamboat Whisper." Ha,vmgjllO right to join inthe ,appeal, it follo)Vs that as to the pliU'ties. named the appeal should' be, dismissed. '" Such dismissal, however, ought not to affect the appeal'; .to the appellants, as the joinder complained of has not prejudiced the appellee. The rule that, where there is a joillt judgment against several parties, aUD).ust join in the appeal, or tJ:1,ere must be a summons and severance or equivalent proceeding, (see Estis v. Trabue; 128 U. S. 230, 9 Sup. Ct. Rep. 58,) is said by the s:upreme court in Owings v. Kincannon, 7 Pet. 399, based on the propriety, if not necessity, of bringing the whole cause before the court. In the case.of Hardee v. Wilson, 146 U. S. 179,13 Sup. Ct. Rep.. 39, (recently decided,) the same court says that there jtre two reasons for the rule: (1) That the successful party may beat liberty to proceed ill the enforcement of his judgment or decree against the parties who do not desire to have it reviewed; (2) that the appellate tribunal shall not be required to decide a second or third time the same question on the same record. In the present appeal, William E. Barre is master of the steamboat Whisper, and lawful bailee thereof,representing all the owners, and his appeal brings the whole cause to this court, and rio other parties appellant Were necess,ary. John F. Ajl{en's interest appears of· record, as d(les that of Bernard H. Menge. Both had a right to appeal, and theil'joinder with Barre does not prejudice appellee. The motion to dismiss the appeal should be granted. as to J. B. Woods, Thomas R. Voorheis, E. J. Comeaux, and Walter Comeaux, but overl'lJ.led as to the other appellants, each party to pay his own costs on this motion; and it is so ordered.
AIKEN et aL v. SMITH. (Circuit Court of Appeals, Fifth Circuit. January 23, 1893.) No. 54. :MASTER AND SERVANT-CONTRIIlUTORY NEGLIGENCE-PERSONAI, INJURIES.
The engine used for hoisting and lowering a boat's stage could only move one way, and could not reverse. It was the duty of the fall tender to put proper turns of the fall or rope around the drum while it was stationary, and then payout or receive the slack according to the way the drum should turn. Thinking the engine running the wrong way, he attempted to throw the turns off the drum while it was in motion, and was, injured. HeW, that he was &"Ililty of negligence, and the fact that the engineer was an inexperienced person did not contribute to the injury.
Appeal from the District Court of the United Statesfol' the Eastern District of LoUisiana. In Admiralty. Libel by Charles Smith against the Whisper, (John F. Aiken, claimant,) in a' cause of subtl'a.ction ot