456
witbthat exception, the,phfases apply alike to alldasses of articles, and'.'1'elate entirely to' to be inscribed on what goes to the' pp.bUc iil various fUt'n1s. and editions,and that there is no reo q\iiretilept that any shall" be inscribed on the painting itself, more than''there is that there' shaU be an original or quasi. original map, composition,pi'int, cut, engraving, photograph, drawing, or model' of,(lesign, to be ihscribed with the notice, as thedefendlUltclaims the painting in this case shOuld have been inscribed.' , also Claims that the words inscribed on the photograph;n$mely, "Copyright, 1892, by 'Photographische Gesellschaft," give 'no iriotice that the' painting has been copyrighted, and imply only thatthephotograph' has been. If this is so, tbe fault is that of of th'ecomplainant, as he has used exactly the iti1posedbylaw. Undoubtedly the statute, if it had not been! !socondensed,might have given a form of notice more in harniony'with the facts of cases of this character; but we can see that'irithis notice there is enough to give anyone who is looking for the'trutp., and who desires to avoid infringement, the thread which w:ilt lead· himeasHy ito the actual condition of the copyright. There issoIilething in the form of thisiiotice which tends to sustain the contentibn of the 'defendant that it should have been inscribed on the painting itself, but not enough to overcome the force of the rules of construction which have led us to the result we have explained. We perceive nothing further in the case which requires any observ'ationsfroDl the court. DecreefOl' the complainant.
BURKE v. DAVIS. (Circuit Court. N. D. Illinois. July 21, 1894.) l.CUBTOMB Dt1TOts"-CONSIGNMENT TO AGENT- V ALTDTTY.
Act June 10,1890, § l,providlng "that all merchandIse imported into th6 United States shall, for the purpose of this act, be deemed and held to be the propertY of. the person to whom the merchandise may be consigned," the consignment of imported goods to another than the does n9t' real owner.' . JUDGMENTS AGAINST COLLECTORS FOR AN .
2.
CLAIMS AGAINBTUNITED STATES EXCESS OF DUTIES.
a.
Judgmentli against collectors for an excess of duties collected are not "claims upon the. United States," within the meaning of Rev. St. § 3477, which makes void transfers and assignments of any claim upon the United States. unless freely maqe and executed in the presence of at least two attesting after its,allowance, etc. Even are claims upon the United States, the statute does not af(ect assignments to the real owner of the judgments, made by an agent'i11 whose name they were rendered, by order of a court, since such statuteapplles only to voluntary lI.SSignments. OF DUTIES.
I:lAME-AsSlGNMENT ORDERlilD BY COURT.
4. EQUITY- JURISDICTION TO COMPEL ASSIGNMENT OF JUDGMENTS FOR EXCESS
'Where all importer obtains judgments, in the name of his agent, against a collector, for an excess of duties collected on' goods imported in the
BURKE fl. DAVIS.
name of such agent, and the agent refuses to assign the to his principal. the latter has no adequate remedy at law, and a court of equity has jurisdiction to compel such assignment.
This was an action by William H. Burke against Frank L. Davis to compel defendant to assign to plaintiff certain judgments obtained by plaintiff, in defendant's name, against a revenue collector, for an excess of duties collected on goods imported by plaintiff in defendant's name. Heard on demurrer to the bill. Demurrer overruled. Richard S. Thompson, for complainant. Chas. H. Aldrich, for defendant. BUNN, District Judge. This is a general demurrer to a bill in equity. The facts, as they appear by the bill of complaint, are substantially these: The complainant is a citizen of London, England, and is engaged in the business of manufacturing, importing, and selling marble and mosaic decorations for buildings; having establishments at the city of Chicago, Illinois, Buffalo, and New York, in the state of New York, and at London, England, and Paris, France. In August, 1888, he employed the defendant, Davis, as his clerk and agent in and about his business at Chicago. That, in the course of complainant's business at Chicago, it became necessary for the complainant to be absent from Chicago much of the time, and in consideration thereof he appointed said Davis his agent at Chicago, to receive importations of ma,rbles, mosaics, and merchandise which he was importing from time to time to Chicago, from his London and Paris establishments, for use in his Chicago business., That said Davis had no interest whatsoever in said importations or business, except as clerk and agent of complainant. That in the years 1889 and 1890 he made various shipments of said goods from Paris and London in the name of said Davis as consignee. That there arose differences between the complainant and the collector of the port of Chicago in regard to the proper duties to be paid upon such goods. That thereupon the complainant paid the duties claimed and charged by the said collector, under protest, in oonformity to the law. That said protests were made in the name of said Davis, he being named as consignee, though having no interest in the property or business. That complainant took appeals to the secretary of the treasury, in the name of said Davis, from the decision of the collector fixing the proper duties to be paid, and that the decisions of the collector were affirmed by said secretary of the treasury. That thereupon complainant, in the name of said Davis, took appeals from the decision of the secretary of the treasury to the United States circuit court for the northern district of Illinois. That he prosecuted said several appeals to decisions in said United States circuit court, and that judgments were therein rendered in favor of the said Frank L. Davis against Anthony F. Seeberger, defendant, for various sums, amounting in all to $9,000 or thereabouts, for excessive duties paid upon said goods by him, the said complainant. That said Davis
"bMrhess, except. as
anyltiterellt';insaid sUits. or appeals, or in the said and. agent of but that the complamant was solely mterested thereul.', and that the so obtained: the collector are the. property of com· plaittant, the defendant::being merely a trustee.. and agent of the oGInpb!Jinant in thept09urement thereof; but that, nevertheless, the: ,l!udd defendant h., quit the service of the, and refuse&,.,though so r6qllEli!Jted, tQassigII. such judgments to the complainant. This suit is brought to restrain the defendant from assigIl.ing said judgments to third persons, and to require him to assign them to complainant The defendant deJ,llurs to the bill, assigIl.ing three general grounds of demurrer, which will be noticed in order. FU-sf: was of a" positive statute defendant named as consigIl.ee of the "O"'nlted States' 'ih when not. in fale the owner,. and that, thel'efore, there can be no 'granted to thecomplainlJ.Ilt. The of law referred:fo'"lif 1 of the customs administrative act ·which:lsMfollows:, . . ..... : into theUhited States shall, for the purpose Of'thlill l!ilit; 'bedeMleQl andh'eld to 'be the property of the person to whom the'merch_isemay be
,the provision that it can. have i,t by counsel. Tllere. is no prohibition. consrgned to a person other than the real .... 'The pro"rliddn is that," for the purposes of the tal'iff act, the personnamedai!loot!Jlignee sliall be deemed and held to be ,the whether he iain fact the owner or acting the only a,s,agltnt,as this case; See<\tid. It is contended' by the defendant that these judgments , are elahns'ijgainst tIle pnited states, the assignment of which section 34;77, Rev. St. U. S., and that equity will is the defendant' do what the law has prohibited him from do\n.g voluntaril;y;. 'This gt"oun:d of demurrer, though seemingly no whit'sounder, than the other. These . judgmertts'ltre.not clahns against t1!e··United States, within the that section.. They COOle neither Within the letter of 'that The purpose of that provision nor was t'9p't'E!vettt the part of the government by the the government, section 3477 provides t1;ll'tt:.< . '. . .·. " ·.. . .' "All tr8JlS{ers and8.ssJ.gnments made ohny claim upon the United States, as is · · · . .abSOlute or conditiQIial, '1\ · · shall be absolutely null and void unlerill freely 'made and executed in the presence" of at least two atter the, allowance of S'\l(lh .a claim, the ascertainment ot the amount the iSS\ling a warrant ,the payment thereof."
It
In the jUdgment of the court, this provision has no J,'eference to elaimsln:th.eformot'.judgmenta.agRinst the collectors of revenue for·llllI. eicess of duties collected. If the facts set forth in the bill be' W'De,-and they are admitted· for the purpose of this demurrer,--..thEi!con1plainant is, .and eter, has been,. .the real and
,BURKE 'II. DAVIS.
459 J
substantial owner of these judgments, and the defendant never had any real interest in the same, or any interest at all, except as trustee and agent of the complainant; and it is a mere question as to whether the court can and will compel him to execute the trust which he took upon himself. It hardly lies with him to say that the government or the collector .of the port will not recognize the decree of the court as valid. Allowing the judgments to be a claim against the government,-and no doubt the government, in practice, whatever its legal obligations may be, will in such cases save the collector harmless,-there would be no inconsistency, and no risk of embarrassment, in paying these judgments 00 the com· plainant, after a decree of the court adjudging the complainant to be the legal and proper owner, or compelling an assignment to him by the defendant. The courts have adjudged several cases not to come within the intent and meaning of the provision. One is where there is an assignment by death. Another is in case of bank· or voluntary assignment for the benefit of creditors. In Erwin v. U.S., 97 U. S. 392, it was held by the supreme court that this provision applies only to cases of voluntll,ry assignmeI:lts of demands against the government, and does not embrace cases where there has been a transfer of title by operation of law. It is there said, "'The passing of claims to heirs, devisees, or assignees in bankruptcy is not within the evil at which the statute aimed." 80, an assignment under a dec,ree of a court, or a passing of the legal title by such decree, is not a voluntary assignment, nor is it within the evil at which the statute is aimed. The same principle Is again affirmed in Goodman v. Niblack, 102 U. 8. 556; and in this case (OpiniOl;l by Mr. ,Justice Miller) the tl'ue rule is laid down that the sole purpose of the statute was 00 protect the government, and not the parties to the assignment. If the government is satisfied to pay to the person adjudged by its own courts to be the true and equitable owner, the party to the assignment cannot complain. In other words, he cannot make this statute a cover and pretext for such a gross fraud and breach of personal trust as is contemplated by the defendant in this case, if the allegations of the bill are true. The language of the court in the last-named case, in speaking of these exceptions to the operation of the statute, such as transfers in bankruptcy and by will, is equally applicable to a transfer by operation of a decree of court. The CQurt says: "The language of the statute-all transfers and assignments of any claIm upon the United States or any part thereof or Interest thereIn-Is broad enough (If such were the purpose of congress) to Include transfers by opel.ltion of law or by wlll, yet we held It dId not Include a transfer by operation of law or In bankruptcy, and we said It dId not Include one by wlll. '.rhe obvIous reason of thIs Is that there can be no purpose In such cases to harass the government by multiplyIng the number of persons with whom it has to deal, nor any danger of enlisting Improper Influences In advocacy of the claim, and that the eXIgencIes of the party who held It justified and required the transfer that was made."
The assignment by a decree of court is not a voluntary assignment. The full equitable title being already in the c()inplainant, the court will require the defendant to transfer the legal title,
460:
FEDEBAIr.llEPOMER,vOI.
63.
or will itself, in default 'thereof, adjlldge the legal title to be in the complainant. Such an assignment is necessary,. under the faots,that justice may be dooe,and it will cause neither the collector nor the government any 'embarrassment. Much stress is laid by. defendant's counsel upon the two cases of St. Paul & D. R. Co. v. U. S., 112 'D". So 7:m, 5 Sup. Ct. 366, and Howes v. U; 13., decided by the court of claims, and reported in 24 Ct. Cl. 170. But these· cases are neither of them an authority for the defendant in· this case. In the first, there had been an assignment of a claim against the United States by way of mortgage to secure a debt, followed ;by. a judicial sale, and the case was properly beld to be within the prohibition of the statute. The claim was conceded 1;() be a claim against the United States, and the fact that the transfer of the claim was in the first place by way of se<lurity, which was afterwards made absolute by judicial sale, was. held ll'ot to alter the case. It Was a voluntary transfer by way of mortgage for the security of a debt, and finally completed and made absolute by a jUdlr.ial sale. It was held to be as much within the statute as though the original transfer had been absolute. This would no doubt be sO even if the statute did not in terms include conditional assignments. In the Case of Howes the language, in' $Ome places, used by the oourt of claims, is no doubt broad enough to cover the case at bar, if the claim here was one in form against the United States, especially where that court'nndertakes 'to give limit to the decisions of the supreme court in the cases before cited and quoted from. But this language must be interpreted with reference. to the facts and circumstances before the court. In that case, Howes & Co. were the owners of certain claims against the United States for their undistributed portion of the Geneva award money, and which they were prosecuting before the court of commissioners of Alabama claims. Judgments were rendered in the California court against Howes & 00., and a receiver appointed, who was, by the decree of the court, subrogated to the rights of Howes & Co., the claimants, and authorized in terms to bring suits upon these claims against the United States iiD the court of claims. Suits were accordingly brought by the receiver of Howes & Co., and also by Howes, and a sharp o()ntest was made. The receiver first, however, moved in the court of oommissionets·of Alabama claims for leave to intervene,and to have judgments in said claims entered in his favor; but the court overruled the motion, and gave judgment in favor of .:ijowes & Co. receiver appeared before the comptroller of tbe treasury, and asked to .intervene as a rightful claimant; but was again overruled. .Then suits were brought by both paftiesin the court of claims. . A could hardly square.lywithin the mischiefs whic4 the statute was intended to prevent. Herewas a distinct controversy governm,nt, and SUCh, be prosecuted,. in . the court of claims., A CalIfornia tb,e Pr.()sMution ,of this, claitt,l in the court of Claims 'by the receiver, who 'to stand in pla6e of the claim-
was
BURKE V. DAVIS.
461
ants. But the claimants themselves were there contesting the right of the receiver. The court refused to recognize the power of the state court to authorize the prosecution of the claim by the receiver, and gave judgment in favor of the origiual c!aimant.q. In the case at bar the claim is not one in form against the United States. It is not one which oould be prosecuted in the court of claims at all. The controversy out of which the claim grew related simply to the proper adjustment of custom duties, prosecuted first before the officers, and lastly in the United States circuit court. The suits were for the purpose of ascertaining the proper duties to be paid upon certain importations. The United States was not a party to the proceeding. The parties to the controversy were the importer, the complainant in this case, and the collector. When the controversy was settled the law required that the collector, or person acting as such, should liquidate the entry acoordingly. Customs Administration Act 1890, § 15. In Nicholl v. U. S., 7 Wall. 122, it was held that cases arising under the revenue laws are not within the jurisdiction of the court of claims. It is only claims against the that can be prosecuted in that court, lllld a claim against the collector for excess of duties paid is, when reduced to judgment, a liquidated debt, and not· a claim against the government. See Lopez v. U. S., 24: Ct. Cl. 84:. The government, in many cases, has recognized claims in the hands of assignees, and when it does so the assignor will not be heard to complain. These judgments already belong, in equity and good conscience, to the complainant; and the defendant has not now, and never had, any substantial interest in them. If assignments are made by him, under the decree of the court, to pass the legal title, or if the oourt decrees the title to be in the complainant, who shall say in advance that the collector or the treasurer of the United States will not recognize the complainant's right, and pay over the money to him? It clearly does not lie with the defendant to say that they will not. The third ground of demurrer urged is that the court has no jurisdiction in equity, because the complainant has an adequate remedy at law. It is urged that there is no allegation that the defendant is not responsible, and that if he should oollect the judgments the complainant could recover the amount of him in an action at law. But the answer to this is that it is not true that the complainant has an adequate or ample remedy at law. On the contrary, to compel the execution of a trust is a common head of equity jurisdiction. Suppose the defendant should not .collect the judgments. What remedy at law has the complainant? Must he stand by and wait for his money until the defendant sees fit to oollect it? That would seem to be his remedy at law in such a case, but it requires but a bare statement of the case to show how incomplete and wholly inadequate it would be. The demurrer to the bill of cOJ;nplaint is overruled, and a decree will be accordingly entered in favor of the complainant against the defendant, unless the defendant answers the bill of complaint, to the merits, on or bef.ore the first Monday of September next.
462
RDERA+,
vol. 63. CARD.
'codry ;f .
(Circuit CourtrN. D. IUinols.
Aprll 30, 1894.)
1,
" " the case of a toYi'1)lIliikhavifita discharging aperture secured by latch, which iSQPpned fl10m within by the of accumu· by merely the spring : sQ'thatwhen the some additional pressure thereoL Is to open the bank. ' ' , '( ,,' , 2. SAME. patent. No. 373.223., for an improvement in toy banks, held ' , .' '
,
ThisWRsa suit in equifjrbyEdward'J. Colby ligainst George C. Carll f?fi:q.fr;ngement of a,patent for toy ,banks. ' :Ql'0wn, for <;o:rnplainant. ,,(,: ' Henry ,:Al. an4Cyrus J. W OQd, for defendant ,The complainant claims under let· ters ,pateHP:N;l?r ,373,223; November 15, ;l,.887,to Edward J. Colby" foIt .j:l.:p iIAprovement in toy banksr " The first and plallp.; of the patent is ,as follows: , '"
, A toy
of ah!>Jh>w toy provided with a c91n-receivlng and ,aperture, a, ro.,9rable Cover for .the aperture, and a sprlng-, Til.tch to secure, tlle 'sattle Nom within;'. sllltl spdng latch being normaliycloSM,but constrUCted to be opehed by the WeIght of the coin within.; i i "
plaintiff's patent l.sthecombination t a,cojil receiving latc!iwhlch the openmg from Wlthm 1f;coin operating the latch. la' tube, with like 'opening and dis· and ,l;t' !spring 'With reference 'the last of a given number of to tht! capaCIty Qfthe comsia tl;lrongh the',open aperture, and thulil' communicates the :t,o,:the c,auses it to, opeh. The ,#P9J:l latch"lJ.h the case of the cotij1plainant's deVlc,e, and to, OverC9lne, the resista,nce of the spring, is the weigbt The pressure in the defendant's device is the weight of I coin, with auch added force as is communicated to. the columIl Of the coinby the forced introduction of the last piece. " force is weight, pure and simple; in the other,', tbeoperating f9rce is weight added to 'by the pressure through a solid column. The which principal que'Sfion, these areniechanical' equivalents. In sure, added I to 'tIJt!. of,the ,c0t,n, IS. needed toovercome Its resistancerTl;lis,' advancement upon or differen· tiatioti rromtb;ecompla.j,riaJit'sidea. , , ,', ' not,' inmy (jpillion,anticlpated either by Gabbey It, is 'not
irhe' with ,a of a until the
feature
6?a