ings in bankruptcy on the application of two of the original petitioners against the protest of the third, and if it be further assumed that the prayer for dismissal sufficiently discloses an existing pecuniary interest on the part of the Supplee Hardware Company and Mallalieu, or either of them, in the subject to which it relates, the court would still be obliged to deny the present application. SOCIAL REGISTER ASS'N v. MURPHY. (Circuit Court, D. Rhode Island. March 9, 1904.) 1. COPYRIGHT INFRINGEMENT DAMAGES RECOVERABLE IN EQUITY. In a suit in equity for infringement of copyright there can be no recovery in the way of damages beyond the gains and profits which the defendant is shown to have realized from the infringement. In Equity. On motion for entry of decree. See 128 Fed. 116. Gifford & Bull, for complainant. Matteson & Healy, for defendant. BROWN, District Judge. This is a motion for the entry of a decree for infringement of copyright. The complainant is entitled to an account of the profits, gains, and advantages which the defendant has received. It is not entitled to damages other than this. The complainant relies upon section 4964 of the Revised Statutes, which provides that an infringer shall "pay such damages as may be recovered in a civil action by such proprietor in any court of competent jurisdiction." This does not enlarge the jurisdiction of a court of equity. It is not analogous to section 4921, which confers upon the courts power, in patent causes, to render a decree for damages in addition to profits to be accounted for. The general principles governing courts of equity in such matters are explained in Root v. Railway Co., 105 U. S. 189, 207-215, 26 L. Ed. 975; Chapman v. Ferry (C. C.) 12 Fed. 693; Callaghan v. Myers, 128 U. S. 663, 9 Sup. Ct. 177, 32 L. Ed. 547. See, also, Stevens v. Gladding, 17 How. 447, 15 L. Ed. 155; 7 Am. & Eng. Enc. Law (2d Ed.) 590. This point was not involved in the decision of Belford v. Scribner, 144 U. S. 488, 12 Sup. Ct. 734, 36 L. Ed. 514. The decree simply awarded profits, and no distinction was made between profits and damages. While in some cases the profits to be accounted for are spoken of as damages, yet in no case that has been presented is it held that damages, as distinct from or additional to profits, can be decreed in equity in a copyright case, as in patent causes. While the word "damages" is used in decrees, it is used synonymously with "profits." Confusion can be avoided by omitting the word "damages," since the word "profits" is more accurate, and sufficient. The waiver of forfeiture removes all objection to the examination of the defendant on the accounting. The only proofs of infringement of 1. See Copyrights, vol. 11, Cent. Dig. §§ 81, 83. specific copyrights that have been presented are those contained in the complainant's exhibit "Parallel Columns." The decree should be limited by striking out all copyrights other than those referred to in that exhibit. Clause 3 should be amended by striking out the words "one or more of the copyrights," and inserting a reference to the specific copyrights which the defendant has infringed as appears by said exhibit. I find no sufficient reason for the denial of the usual costs to the complainant. Let a draft decree be prepared accordingly. DAVIS V. KANSAS & TEXAS COAL OO. et al. (Circuit Court, W. D. Arkansas, Ft. Smith Division. April 1, 1904.) 1 FOREIGN CORPORATIONS-SELVICE OF PROCESS-CONSTITUTIONALITY OF StatUI 2. Act Ark. Feb. 26, 1901 (Acts 1901, p. 52, § 1), which provides that where a right of action shall accrue in favor of a resident or citizen of the state against a foreign corporation, whether arising on contract or in tort, and such corporation shall not have an agent in the state or have designated a person on whom service may be made, process may be served on the Auditor of State, and shall be sufficient to give jurisdiction of the person, when construed in connection with previous legislation requiring foreign corporations doing business in the state to designate agents therein on whom process might be served, is constitutional and valid, as applied to corporations which were doing business in the state after the passage of the act and at the time the cause of action sued on accrued therein in favor of a citizen, and a corporation cannot evade service in such case by thereafter withdrawing from the state and canceling the appointment of its designated agent. On Motion to Quash Service. T. B. Pryor, for plaintiff. Ira D. Oglesby, for defendants. ROGERS, District Judge. This suit was brought in the state court, and removed by the defendants to this court. A motion is now made by the defendant the Kansas & Texas Coal Company to quash the service. The service was made upon the Auditor of State, and the motion alleges that the service upon the Auditor was unauthorized, illegal, and insufficient, and conferred no jurisdiction to render personal judgment against said defendant, because no warrant or authority of law exists for the service of such process upon the Auditor; second, because the service of the process upon the Auditor of the state of Arkansas under the act under which the service was made is in violation of section 8, art. 2, of the Constitution of Arkansas, and of the fifth and fourteenth amendments to the Constitution of the United States. The provision of the Constitution of Arkansas referred to is the one which provides that no person shall be deprived of life, liberty, or property without due ¶ 1. Service of process on foreign corporations, see note to Eldred v. Amertean Palace Car Co., 45 C. C. A. 3. process of law; being, in substance, the same as article 5 of the federal Constitution. It was conceded in the argument that, at the time the injury complained of occurred, the Kansas & Texas Coal Company was doing business in the state of Arkansas, and in the Ft. Smith division of the Western District thereof. It was also conceded that, at the time the suit was brought, the Kansas & Texas Coal Company had ceased to do business in the state, and had no agent in the state upon whom service could be made. It also appears from the record that up to the 28th of July, 1902, Thomas R. Tennant was the designated agent of the Kansas & Texas Coal Company for the service of summons and other process, and that his agency was revoked on the 28th day of July, 1902, and that prior to the 28th of July, 1902, the Kansas & Texas Coal Company had ceased to do business in the state of Arkansas, and was not engaged after that time in any business in the state, and that at the time of service of process in this case Thomas R. Tennant was not the agent of the Kansas & Texas Coal Company, or in any way connected with or employed by it. It also appears from the record that service had been had upon the said Tennant, and had been quashed by the state circuit court, before the removal of this case into this court, to which action the defendant the Kansas & Texas Coal Company at the time excepted. The service was had under the act approved February 26, 1901 (Acts 1901, p. 52), section I of which is as follows: "In all cases where cause of action shall accrue to a resident or citizen of the state of Arkansas, by reason of any contract with a foreign corporation, or where any liability on the part of a foreign corporation shall accrue in favor of any citizen or resident of this state, whether in tort or otherwise, and such foreign corporation has not designated an agent in this state upon whom process may be served, or has not an officer continuously residing in this state upon whom summons and other process may be served so as to authorize a personal judgment, service or summons and other process may be had upon the Auditor of State, and such service shall be sufficient to give jurisdiction of the person to any court in this state having jurisdiction of the subject-matter, whether sitting in the township or county where the Auditor is served, or elsewhere in the state." If this act stood alone, the court would be compelled to quash the service. Manifestly this statute, standing by itself does not authorize service upon the Auditor, which would be binding upon the defendant corporation, if it was not doing business in Arkansas at the time the cause of action accrued, or where the cause of action grew out of a transaction outside of the state. The act is broad enough, however, to cover that class of cases. It must be construed, if it can be upheld at all, to apply only to causes of action against corporations growing out of transactions while such corporations were doing business in the state; and, if this act stood alone, it could not be upheld at all, as against the Kansas & Texas Coal Company, but it does not stand alone. The act of the Legislature of Arkansas approved February 16, 1899 (Acts 1899, pp. 18-21), is as follows: "Section 1. Every corporation formed in any other state, territory or country, before it shall be authorized or permitted to transact business in this state, or to continue business therein, if already established, shall by its certificate, under the hand of the president and seal of such company or corpo ration, filed in the office of the Secretary of State of this state, designate an agent, who shall be a citizen of this state, upon whom service of summons and other process may be made. Such certificate shall also state the principal place of business of such corporation in this state. Service upon such agent shall be sufficient to give jurisdiction over such corporation to any of the courts of this state. Any corporation so filing such certificate in the office of the Secretary of State shall pay therefor a fee of one dollar ($1.00) for such filing, and a like fee for each subsequent appointment of an agent so filed. "Sec. 2. Every company or corporation incorporated under the laws of any other state, territory or country, now or hereafter doing business in this state, shall file in the office of the Secretary of State of this state, a copy of its charter, or articles of incorporation or association; or, in case such company or corporation is incorporated merely by a certificate of incorporation, duly authenticated and certified by the proper authority. The Secretary of State shall cause all such charters, articles of incorporation or association so filed to be duly recorded in a book kept for that purpose. And such corporation shall be required to pay into the treasury of the state, incorporating and other fees equal to those required of similar corporations formed with and under the laws of this state. Upon compliance with the above provisions by said corporation, a copy of such charter, or articles of incorporation, or certificate so filed, properly certified under the seal of his office, shall be taken by all the courts of this state as evidence that the said corporation is entitled to all the rights and benefits of this act. And such corporation shall be entitled to all the rights and privileges, and subject to all the penalties conferred and imposed by the laws of this state upon similar corporations formed and existing under the laws of this state: provided, that the provisions of this act requiring copy of original charter, and certificate naming an agent, and to pay certain fees therefor, shall not apply to railroad or telegraph companies which have heretofore built their lines of railroad or telegraph into or through this state: provided further, that the provisions of this act are not intended and shall not apply to 'drummers' or traveling salesmen soliciting business in this state for foreign corporations which are entirely nonresident. "Sec. 3. On and after the going into effect of this act, any foreign corporation, as defined above, which shall refuse or fail to comply with this act, shall be subject to a fine of not less than one thousand dollars ($1,000.00), to be recovered before any court of competent jurisdiction; and it is hereby made the duty of the prosecuting attorneys of the different judicial districts of this state to see to the proper enforcement of this act. All such fines so recovered shall be paid into the general revenue fund of the county in which the cause shall accrue. In addition to which penalty, or after the going into effect of this act, no foreign corporation, as above defined, which shall fail to comply with this act, can maintain any suit or action, either legal or equitable, in any of the courts of this state, upon any demand, whether arising out of contract or tort. "Sec. 4. Any foreign corporation that has heretofore engaged in business, or made contracts in this state, may within ninety days after the passage of this act, file such copy of articles of incorporation, together with certificate of appointment of an agent upon whom service of summons and other legal process may be had, in the office of the Secretary of State, and pay the requisite fees thereon, as provided by this act, then all their contracts made before this act goes into effect are hereby declared as valid as if said articles of incorporation and certificate, as herein defined, had been filed before they began business in this state. "Sec. 5. That all laws and parts of laws in conflict herewith be and the same are hereby repealed, and that this act shall take effect and be in force from and after its approval." By an act approved March 18, 1899 (Acts 1899, pp. 116, 117), it is provided: "Section 1. That section 1323 be amended so as to read as follows: Before any foreign corporation shall begin to carry on business in this state, it shall, by its president and seal of said company filed in the office of the Secretary of State, designate an agent who shall be a citizen of this state, upon whom service of summons and other process may be made. Such certificate shali state the principal place of business of said corporation in this state, and service upon such agent at any place in this state shall be sufficient service to give jurisdiction over such corporation to any of the courts of this state, whether the service was had upon said agent within the county where the suit is brought or is pending or not. "Sec. 2. All acts and parts of acts inconsistent with this act are hereby repealed, and this act shall take effect and be in force from and after its passage." By an act of the Legislature of Arkansas (Acts 1899, pp. 305-307), section 2 of the act of February 16, 1899, was amended so as to read as follows: "Section 1. That section two (2) of said act be and the same is amended so as to read as follows: Every company or corporation incorporated under the laws of any other state, territory or country, now or hereafter doing business in this state, shall file in the office of the Secretary of State of this state, a copy of its charter, or articles of incorporation, or association, or in case such company or corporation is incorporated merely by a certificate, then a copy of its certificate of incorporation, duly authenticated, and certified by the proper authority. The Secretary of State shall cause all such charters, articles of incorporation, or association, so filed to be duly recorded in a book kept for that purpose. And such corporation shall be required to pay into the treasury of the state, incorporating and other fees equal to those required of similar corporations formed within and under the laws of this state. Upon compliance with the above provisions by said corporation the Secretary of State shall cause to be issued to said corporation, a copy of such charter, or articles of incorporation, or certificate so filed, properly certified under the seal of his office, and a copy of such charter, or articles of incorporation or certificate, certified to by the Secretary of State shall be taken by all the courts of this state as evidence that the said corporation has complied with the provisions of this act, and is entitled to all the rights and benefits therein conferred. And such corporation shall be entitled to all the rights and privileges, and subject to all the penalties conferred and imposed by the laws of this state upon similar corporations formed and existing under the laws of this state: provided, that the provisions of this act requiring copy of original articles of incorporation, or charter, and certificate naming an agent, and to pay certain fees therefor, shall not apply to railroad companies which have heretofore built their lines of railroad into or through this state: provided further, that the provisions of this act are not intended and shall not apply to 'drummers' or traveling salesmen soliciting business in this state for foreign corporations which are entirely non-resident." All these acts must be construed together, so that the provisions of each of them may be permitted to stand, and from the whole the purpose and object of the Legislature is to be deduced. It may be noted in this connection that as early as the 25th of April, 1873 (Acts 1873, p. 258, § 13), the Legislature of Arkansas enacted the following stat ute: "No insurance company, not of this state, nor its agents, shall do business in this state, until it has filed with the Auditor of this state a written stipulation, duly authenticated by the company, agreeing that any legal process affecting the company, served on the Auditor or the party designated by him, or the agent specified by said company to receive service of process for the company, shall have the same effect as if served personally on the company within this state. And if such company should cease to maintain such agent in this state, so designated, such process may thereafter be served on the Auditor; but so long as any liability of the stipulating company to any res ident of this state continues, such stipulation can not be revoked, or modified, except that a new one may be substituted, so as to require or dispense with |