1871.

PUGH V. UNITED STATES.

money, and the performance of certain duties in connection with the publication.

It is insisted by the appellants that a just interpretation confines the agreement to a mere assignment of the interest in such copyright, as is provided for in the act of 31st May, 1790 (1 Stat. at L. 124); that this was the law in force when the contract was entered into; that the fourteen years therein provided for, with the right to a prolongation of fourteen years more, is all that the publishers, at most, are entitled to, and that they are excluded necessarily from the benefit of the provisions conferred by the act of the 3d February, 1831 (4 Stat. at L. 436), granting to authors an additional extension of fourteen years.

In our view, this is too narrow a construction. The fair and just interpretation of the terms of the agreement indicate, unmistakably, that the 615* author of the manuscript, in agreeing to deliver it for publication at a stipulated compensation, intended to vest in the publishers a full right of property thereto.

The manuscript is delivered under the terms of the agreement "for publication." No length of time is assigned to the exercise of this right, nor is the right to publish limited to any numThe consideration is a fixed sum ber of copies. of $1,000. Whether one or one hundred thousand copies were published the author was entitled to receive, and the publishers bound to pay, this precise amount.

As between the parties to the agreement, the absolute interest was conveyed by the stipulation of Paige, that he would furnish the manuPaige could no longer script for publication. do any act after such delivery for publication inconsistent with the absolute ownership of the But it was proper, for the protecpublishers. tion of the publishers, that they should be in position to assert the remedies given by the law against intruders, and it is to this end it is added in the agreement, "and the said Gould & Banks shall have the copyright of said reports to them, their heirs, and assigns forever." It is not covenanted that the publishers should take out the copyright, nor is there any express agreement for an assignment to them by Paige, Undoubtedly, the proif he should take it out. vision, that the publishers "should have the copyright," would authorize them to apply for it, and if Paige had taken it out in his own name it would have inured to their benefit. But, as between Paige and the publishers, the rights of the latter could not be estimated differently, whether they had or had not availed themselves of the provisions of the act.

We have been referred to the case of Cowen v. Banks, 24 How. Pr. 72, in which Mr. Justice Nelson, on a similar agreement, expressed the opinion that the construction now contended for No reason by the appellants was the true one. is assigned by the judge for his opinion, and the case was such that it was not necessary that It this point should be maturely considered. appeared in the case that the bill was filed by the executrix of Judge Cowen for an injunction and an account against the publishers. hearing of the deposition of the judge given in the prior suit brought by the publishers against one Hastings, as a violator of the copyright, In this deposition the was read in evidence. judge testifies that it was his intention, by the

The

agreement, to convey his whole interest in the
copyright of the work," and he adds: "I sup-
I would
pose the book to belong to my assignees, as soon
as made, including all that was in it.
not have taken the office of reporter with its
salaries and duties, unless I was to have a pro-
prietary right which I could use or dispose of."
The practical construction by Judge Cowen of
his own contract, in opposition to his interest.
is cited in the decision to which we are [*616.
now referring, together with the fact that the
judge died in 1844, three years after the expira-
tion of the first term of the copyright. On this
it is said, with some emphasis, "that he had all
this time acquiesced in the claim of the as-
signee." The decree was that the contract be
reformed accordingly.

In the case now before us the construction
contended for by the appellants was, for the
first time, urged by letter of Mr. Paige, 13th
January, 1858, addressed to the appellees, who
replied on 3d February, following, asserting
their absolute right of ownership, with an un-
limited license to publish and sell. The parties
lived together after this in the same state until
31st March, 1868, when Paige died, a period of
ten years, during which no further notice was
ever taken of this subject, and no attempt by
Paige, by act or protest, to interfere with the
It is difficult to account for this long
exercise of the right of the appellees to publish
and sell.
acquiescence upon any assumption that Paige,
If
after the receipt of the reply to the publishers,
had faith in the construction now urged.
this agreement needed any extraneous aid to in-
dicate the intention of the parties, this acquies-
we have taken of it.
cence would certainly be persuasive of the view
Decree affirmed.

Court of claims has no jurisdiction of a claim
for property destroyed during the war
claim for rent.

The court of claims has no jurisdiction of a
claim for the destruction of property during the
war in one of the states engaged in the Rebellion.
by the military forces of the United States, nor of
a claim for rent of a plantation, where the leasing
was an incident only to the unlawful appropriation
and spoliation of the plantation.

[No. 146.]

Argued Mar. 26, 1872.

A

Decided May 6, 1872.

PPEAL from the Court of Claims.
The case is stated by the court.
Mr. Thomas J. Durant for appellant.
Mr. C. H. Hill, Asst. Atty. Gen., for appellee.

Mr. Chief Justice Chase delivered the opinion of the court:

This is an appeal from the court of claims. The substantial averments of the petition arethese:

First. That the United States, during the period of the late Civil War, illegally, violently, and forcibly took possession of the petitioner's

711

LOSES

END OF VOLUME 80.

ROSE'S NOTES

COMPLETELY REVISED EDITION

1917

Showing the present value as authority of all cases in this volume of reports as disclosed by all subsequent citations in the Federal and State courts, including

with duplicate references to Am. Dec., Am. Rep., Am. St. Rep., Ann. Cas. (American and English), L. R. A., N. C. C. A., and the Reporter System.

ROSES

NOTES

ON THE

UNITED STATES REPORTS.

XIII WALLACE.

13 Wall. 1-3, 20 L. Ed. 556, BETHELL v. MATHEWS.

Plaintiff in error cannot take advantage of rulings upon exceptions in his own favor even if erroneous.

Approved in Mercelis v. Wilson, 235 U. S. 583, 59 L. Ed. 371, 35 Sup. Ct. 150, holding parties invoking ruling to change bill for injunction to one to quiet title could not ask reversal on ground the court had no power to grant motion; Pearce v. Albright, 12 N. M. 209, 76 Pac. 287, appellant cannot complain because court did not pass on appellee's demurrer and motion to strike out; Orange Co. Fruit Exch. v. Hubbell, 10 N. M. 58, 61 Pac. 122, holding appellee not excepting to amount of judgment barred from taking advantage by exception and appeal; In re Gribbon, 55 Fed. 876, 5 C. C. A. 287, in an appeal by the customs collector from a decision on question of duty on manufactured articles, holding the importer not having appealed could only be heard in support of the decision, and if an error had been committed by the court below it was to the advantage of the collector and furnished him no ground of complaint.

Statement of facts signed by counsel cannot be noticed upon error, and is insufficient under act of 1865, authorizing trial of facts by Circuit Court.

Approved in Merchants' Mut. Ins. Co. v. Folsom, 18 Wall. 252, 21 L. Ed. 834, finding of Circuit Court, where trial by jury is waived, is not proper subject of review in Supreme Court.

13 Wall. 3-6, 20 L. Ed. 556, NORWICH ETC. TRANSP. CO. v. FLINT.

In an action for personal injuries caused by riotous soldiers on board a ship, statements of a sergeant to his officers and their replies and con

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