The Bermuda.

ticle and the consequent risk assumed, and what he has done has tended to lessen the vigilance the carrier would otherwise have bestowed. 2 Kent's Comm., 693, and cases cited; Relf v. Rapp, 3 Watts & Sargeant, 21; Dunlap v. International Steamboat Co., 98 Mass., 371; Railroad Co. v. Fraloff, 100 U. S., 24." The same rule was applied in Gibbon v. Paynton, (4 Burrow, 2,298;) and in Batson v. Donovan, (4 B. & A., 21.)

The reasonableness of the stipulation in the bill of lading cannot be questioned, for it is authorized by section 4,281 of the Revised Statutes, which declares the total exemption of the carrier from liability for jewelry, manufactured gold or silver, watches, trinkets or plated articles, contained in any parcel, package or trunk, laden as freight, on any vessel, unless at the time of the lading the shipper gives written notice of the true character and value thereof, and has the same entered on the bill of lading; and also provides that when the value and character are so notified and entered, there shall be no liability beyond such value or otherwise than according to such character.

Reasonable stipulations by a carrier for exemption from responsibility are sanctioned and upheld. (York Co. v. Central Railroad, 3 Wall., 107; Express Co. v. Caldwell, 21 Wall., 264.)

The libel is dismissed, with costs to the claimant in the District Court, taxed at $44.46, and with costs to it in this Court, to be taxed.

Lorenzo Ullo, for the libellants.

Wilhelmus Mynderse, for the claimant.

Sarony v. Ehrich.

NAPOLEON SARONY vs. WILLIAM J. EHRICH AND OTHERS.

The proprietor of a copyrighted photograph cannot recover from an infringer the value of infringing photographs which he has published and circulated, and which have passed out of his possession.

No such right of recovery is given by § 4,965 of the Revised Statutes.

(Before CoXE, J., Southern District of New York, June 24th, 1886.)

THIS was an action, tried by the Court, without a jury, to recover $535, the value of 70,000 lithographic copies of a photograph of Oscar Wilde, copyrighted by the plaintiff. These copies were printed by the Burrow-Giles Lithographic Company, for the defendants, and published and circulated by them. Prior to the commencement of this action they had all passed out of the possession of the defendants.

The defences are, first, that, under section 4,965 of the Revised Statutes, the actual infringing prints can alone be recovered, and that there is no provision of law by which the plaintiff can obtain judgment for their value; second, that, after the distribution by the defendants as aforesaid, the plaintiff commenced an action against the Lithographic Company, and recovered the money value of all copies printed and sold by it, including those in controversy; and that the judgment entered in that action has been paid and is a bar to a further recovery.

Section 4,965 is as follows: "If any person, after the recording of the title of any map, chart, musical composition, print, cut, engraving, or photograph, or chromo, or of the description of any painting, drawing, statue, statuary, or model or design intended to be perfected and executed as a work of the fine arts, as provided by this chapter, shall, within the term limited, and without the consent of the proprietor of the copyright first obtained in writing, signed in presence of two or more witnesses, engrave, etch, work, copy, print, publish or import, either in whole or in part, or by varying the

Sarony v. Ehrich.

main design with intent to evade the law, or, knowing the same to be so printed, published, or imported, shall sell or expose to sale any copy of such map or other article, as aforesaid, he shall forfeit to the proprietor all the plates on which the same shall be copied, and every sheet thereof, either copied or printed, and shall further forfeit one dollar for every sheet of the same found in his possession, either printing, printed, copied, published, imported, or exposed for sale; and in case of a painting, statue, or statuary, he shall forfeit ten dollars for every copy of the same in his possession, or by him sold or exposed for sale; one-half thereof to the proprietor and the other half to the use of the United States."

Guernsey Sackett and A. T. Gurlitz, for the plaintiff.

Stine & Calman and D. Calman, for the defendants.

COXE, J. The section in question must be strictly construed. (Backus v. Gould, 7 How., 798.) No authority has been cited to sustain the proposition, that, when the piratical prints are out of the possession and beyond the control of the infringer, the proprietor of the copyright can recover of him their value, in an action at law. It would require an exceedingly strained construction, almost a distortion, of the Act, to make it fit the present circumstances. It is no answer to say that the remedy provided by law is ineffective; that the wrong-doer may escape the consequences of his infringement; that the opportunity for redress diminishes in proportion to the success of the infringement, and ceases wholly when the wrong is fully consummated. These arguments might, with great propriety, be addressed to the law-making power, and Congress could, perhaps, be induced to render effectual, by a few simple amendments, provisions which, in their present form, are so obviously defective and inadequate. With these considerations, however, the Courts have nothing to do. They must deal with the law as it is; not as it ought to be.

The Troy Laundry Machinery Company v. Bunnell.

But, even though the statute should be construed in accordance with the plaintiff's contention, it is not easy to see why the proposition advanced by the defendants, that he has already recovered the value from the Lithographic Company, and cannot, therefore, recover it again, is not well founded.

The defendants are entitled to judgment, but, according to the terms of the stipulation, it should be without costs.

THE TROY LAUNDRY MACHINERY COMPANY AND THOMAS S. WYLES

vs.

LYMAN S. BUNNELL. IN EQUITY.

Letters patent No. 258,334, granted to Thomas S. Wyles, May 23d, 1882, for machinery for folding and curling collars, are void for want of invention. Prior structures did not embody the identical combination of any claim of the patent; but the patentee combined features existing in prior patents, leaving to each the same functions and modes of operation, no feature contributing any new function or mode of operation to any other.

(Before WALLACE, J., Northern District of New York, June 25th, 1886.)

WALLACE, J. The complainants allege infringement of letters patent No. 258,334, granted to Thomas S. Wyles, May 23d, 1882, for machinery for folding and curling collars. The defendant, besides denying infringement, relies upon the want of novelty in the patented invention.

The object of the invention is to dispense with the hand labor of folding and curling linen or cotton collars after they have been starched or partially folded, and to substitute mechanism by which starched and partially ironed collars, having the curved fold-line moistened, can be accurately folded, curled and dried progressively, from end to end.

The Troy Laundry Machinery Company v. Bunnell.

The machine described in the specification consists of a feeding guide E, two rollers R and C, and a curling guide G. The feeding guide serves to introduce and direct a partially folded collar between the two rollers. The rollers are supported, rotated and pressed together by any suitable means. The roller B is of much greater diameter than the roller C. The collar feeding surface of the roller B is made elastic, a tight layer of felt covered with muslin being commonly used to give it this quality. The roller C is of metal, with a hard smooth surface, and is adapted to be artificially heated. The curling guide is concavely curled, with its concave surface in the form of a section of a hollow cone. In operation, the collar, partly folded and having the curved fold-line moistened, is placed in the feeding guide E, which is inclined to the plane of contact between the two rollers, is introduced by the feeding guide between the rollers, and, by their action, is pressed and dried, retaining a curved shape until it issues from between them into the curling guide G, and is directed in a spiral course, by the form of the curling guide, away from the point where it enters from between the rollers, and discharged in a curved shape.

The patentee refers, in his description, to two prior patented machines, as follows: "United States patent No. 57,308 shows and describes a machine for molding, turning or flaring outward the fold portion of a folded paper collar, by the combination and arrangement of a concave roller, a convex roller, a guide to direct the folded collar between the rollers and bend it towards the concave roller, and another guide to receive, bend and direct the collar as it issues from between the rollers; but that patent does not show, describe or mention any roller having an elastic yielding or cloth-covered surface, nor any means whatever for heating one of the rollers. Consequently, that machine was not capable of folding, drying and curling a partly folded starched and ironed collar, having a moistened fold-line, and that particular combination and arrangement of the two guides of the concave and convex rollers would not produce the plain fold required