played in these forms and colors upon their labels on the central parts of their spool-heads of light-colored wood, has made the mere appearance of the spools, without reading the labels, a representation that the thread is of their manufacture; and that their use of the embossed numbers with the label has made that combination by its mere appearance a still stronger representation to that effect. Whether the appearance amounts to such a representation is a question of fact to be determined on the evidence. Black and gilt labels appear to have been used by others on spools of thread nearly and perhaps quite as early as by the plaintiffs. Some similar to the plaintiffs', with the names of the makers of the thread in place of the plaintiffs' names, were used to some extent on six-cord thread in lengths of 200 yards on each spool from 1854 to 1874; and some without the words and figures "Best Six Cord" and "200 yds.," with a like substitution of names, were used on spools of 200 yards of sixcord and other thread by predecessors of the defendants from 1868 to 1878. The use by these others was less than that by the plaintiffs, but was sufficient to make their thread with these labels known in the markets. The appearance of the spools would, to some extent, indicate the origin of the thread, without reading the names of the makers; and as more of it was the plaintiffs', would more often so represent than that it was thread of others; but the rights claimed by these others in the markets were not resisted, and appear to have become well established. When the defendants entered the markets with their label, it was comparatively as much a representation that their thread was the thread of the others as that it was the thread of the plaintiffs; and they appear to have had as good right there with their labels as the others would have to continue there with theirs. The fact is not found, upon all the evidence, that the use of the label on the plain spool-head by the defendants amounts to a representation that the thread came from the plaintiffs. The embossed numbers do not of themselves indicate origin at all; but the long and exclusive use of them by the plaintiffs may have so associated them with their label and thread that the use of them by the defendants in connection with their label might lead ordinary customers, to some extent, to think that the thread was from the plaintiffs. If so, the use of them in that manner by the defendants would amount to a representation so far that the thread of the defendants was that of the plaintiffs. However this may be, but for the patent the defendants might with equal right have used the numbers as the plaintiffs did. When the patent expired, the use became common to all, as if there had never been any patent covering them. The plaintiffs held the monopoly during the term of the patent, subject to the consequences of its expiration. The incidental effect upon the plaintiffs trade of the use of the numbers by the defendants is one of these conse quences. It does not arise from any wrongful invasion of the plaintiffs' rights; but from the rightful exercise of the defendants' rights. The plaintiffs' mode of exercising their monopoly, by using the numbers exclusively themselves, exposed their trade to what might be inferred from that when the use should become common. The law does not extend the patent beyond its term to protect them from such results. Fairbankı

v. Jacobus, 14 Blatchf. 337; Filley v. Child, 16 Blatchf. 376; Sewing-Machine Co. v. Frame, 21 Blatchf. 431, 17 Fed. Rep. 623; Gally v. Fire-Arms Co., 30 Fed. Rep. 118. The facts of this case, as they appear from the proofs, do not bring it within the principles of McLean v. Fleming, 96 U. S. 245; Frese v. Bachof, 14 Blatchf. 432; Stocking Co. v. Mack, 12 Fed. Rep. 707; Soap Co. v. Thompson, 25 Fed. Rep. 625; Kinney v. Basch, 16 Amer. Law Reg. (N. S.) 596, and note; and others of the same nature, -relied upon for the plaintiffs. Much and repeated consideration of this case discloses no apparent ground upon which the bill can be maintained. Let a decree be entered dismissing the bill of complaint, with costs.

WEBSTER et al. v. ELLSWORTH.

(Circuit Court, E. D. Michigan. February 21, 1888.)

COPYRIGHT-EXCLUSIVE RIGHT TO SELL BOOK-CONSTRUCTION.

The grant of an "exclusive right to take orders for and sell" a book within a certain territory will not be construed as a covenant that no other person shall sell the book in competition with the grantee, but only as a covenant that this shall not be done with the consent or connivance of the grantor.

At Law. On motion for new trial.

This was an action for books sold and delivered. Defendant set up in defense the following state of facts: On October 3, 1884, plaintiff and defendant entered into a written contract, by which plaintiff agreed "to grant to defendant the exclusive right to take orders for and sell in the territory above mentioned" (the state of Michigan) a certain book called "Huckleberry Finn," and defendant agreed to sell said book by subscription, and to pay for all books so ordered at a specified price. This book was published by the plaintiffs, and published only by them. Defendant got his prospectuses out in the fall of 1884, and at once engaged canvassers, and set them at work. The book was ready for delivery the latter part of February, 1885, and at that time defendant commenced to deliver it to his subscribers. About this time the book appeared in the book-stores of several cities of Michigan, and was, both by advertisement and otherwise, offered for sale, and sold at a price much lower than defendant had bound himself to sell them. In consequence of this, defendant's monopoly under the contract was practically, destroyed. He lost the profits that would have arisen from the sale of the book, and also lost the value of his time expended in preparing for the canvass. The book-dealers, who purchased and sold in Michigan, bought at regular supply stores of the trade, and had no notice of defendant's claim. There was no evidence tending to show that plaintiffs were privy to the circulation of the book, or that they knew it was being sold in this state to the prejudice of defendant's rights under his contract. The court held this to be no defense, and directed a verdict for the plaintiffs. Defendant moved for a new trial.

S. M. Cutcheon, for plaintiffs.

W. L. Carpenter and H. H. Swan, for defendant.

BROWN, J., (after stating the facts as above.) Upon the trial of this case it was assumed by the court that if defendant's territory was invaded by others, who were selling in competition with him, it might be possible for him to maintain a suit against them, either in his own name or that of the plaintiff, to enjoin such sale. Upon reflection we are satisfied that this assumption was not well founded. Defendant was a mere licensee, with a privilege of selling, but with no proprietary rights in the copyright, and it is clear that as such licensee he would have no power to enjoin an unlawful sale of the books. Drone, Copyr. 305; Walk. Pat. § 400; Gayler v. Wilder, 10 How. 477; Hill v. Whitcomb, 1 Holmes, 317; Sanford v. Messer, 2 O. G. 470. The better opinion seems to be that the owner of the copyright himself could not enjoin sales of the books lawfully purchased elsewhere, without notice of the defendant's rights. These dealers had bought the books in the regular course of trade, in an eastern city, of a person who had the legal right to sell them, and they had brought them in good faith within defendant's territory for the purpose of disposing of them at retail, without knowing of defendant's exclusive right to sell them here. Having thus lawfully purchased the books in good faith, they had the right to sell them wherever they chose, and could not be restrained in the enjoyment of such right, in other words, they are not bound by any private agreement between the owner of the copyright and his licensee, of which they had no knowledge. Hill v. Whitcomb, 1 Holmes, 317; Apollinaris Co. v. Scherer, 27 Fed. Rep. 18; Clemens v. Estes, 22 Fed. Rep. 899; May v. Chaffee, 2 Dill. 385; Hawley v. Mitchell, 4 Fish. Pat. Cas. 388. The case turns then upon the construction to be given to plaintiffs' grant of the exclusive right to take orders for and sell the work in the territory above mentioned. These words clearly negative the right of the plaintiffs to authorize the sale of such books by any other persons within this state, but in terms they do not go beyond that. Defendant, however, seeks to import into this contract a guaranty that no other person shall obtain copies of the same work, and sell them in competition with him. If these sales were made by the connivance or consent of plaintiffs, it would undoubtedly be a good defense to this action, but there is no evidence tending in this direction. There is no evidence even that plaintiffs knew that the books were being sold here in competition with defendant, or at a less price than defendant was authorized to sell them. It was doubtless contemplated by both parties that the book should be sold only by subscription; but in some way or other, probably through the fault of some of plaintiffs' vendees, the books got into general circulation, and defendant's market was spoiled. Had this been the fault of the plaintiffs themselves, defendant would have had his remedy; but as they appear to have been entirely innocent in the matter, it is difficult to see how they can be held liable. They did not guarantee that the defendant should have the exclusive sale of the books within his territory, or that no copy should be sold by other persons, but merely that

he should have the exclusive right to sell so far as they could control it, and that he still has. The cases cited by plaintiffs' counsel prove too much. They not only show that defendant is powerless, but that plaintiffs are equally so. To enable him to set up this defense we think it should appear either that plaintiffs expressly stipulated that the defendant should encounter no competition in the sale of the work, or that they were guilty of some fault or negligence in connection with such sales. The two cases of Sims v. Marryat, 17 Q. B. 291, and Faulks v. Kamp, 3 Fed. Rep. 898, tend to establish the proposition that plaintiffs impliedly warranted that they had the exclusive right to sell, but they have no tendency to prove a guaranty by them that defendant should not be interfered with. The motion for a new trial must be denied, and judgment will be entered upon the verdict.

NOTE. Upon a rehearing before the circuit and district judge this case was affirmed.

THE MARION W. PAGE and THE MISSOURI.

(District Court, E. D. Michigan. January 18, 1888.)

1. COLLISION-BETWEEN SAILER AND STEAMER WITH TOW.

A propeller, with five barges in tow, bound down Lake Huron, upon a course nearly south, met a schooner bound up the lake, with a free wind, upon an opposite course. The schooner passed the propeller upon the port hand, at a safe distance, but, instead of keeping off, as she might have done, suddenly put her helm hard down, and endeavored to cut across the tow between the fourth and fifth barges. Held, that the schooner was solely in fault. 2. SAME.

Where a schooner, sailing with a free wind, meets a propeller incumbered with a long tow, the duty of avoiding a collision does not devolve wholly upon the propeller. The schooner is also bound to look out for herself, and take such precautions as the circumstances seem to require.

In Admiralty. Libel for damages.

This was a libel for collision between the barge Saginaw, then in tow of the propeller Missouri, and the schooner Marion W. Page, which occurred in Lake Huron, off Lexington, at about 7 o'clock in the morning of October 20, 1886. The libel averred, in substance, that the barge was the fourth of a tow of five vessels in tow of the propeller Missouri, and bound down the lake on a course nearly south; that the schooner Page, bound up the lake, on a parallel opposite course, with a free wind, approached as if to pass on the port side, but, after she had passed the Missouri, and when a short distance ahead of the Saginaw, she suddenly swung, as if under a starboard wheel, directly across the tow, and struck the Saginaw upon her port bow, not far from the stem. The answer of the Missouri did not differ essentially from the libel in its statement of facts, but denied all the allegations of fault made against the propeller. The answer of the schooner Marion W. Page averred that she, together

with the schooners John Kelderhouse, Newsboy, and Arthur, had just been cast off by the tug William A. Moore, and had shaped her course north by west up the lake, with a free wind; that about half past 6 in the morning the Missouri was seen coming down the lake, at a distance of three-quarters of a mile, and bearing a point upon the schooner's starboard bow; that the vessels continued on their respective courses until the Missouri suddenly, and when about two lengths off, hauled up and attempted to cross the Page's bow. "The Page, however, was kept steadily on her course until she approached the third barge of the Missouri's tow, when her wheel was ported sufficiently to clear the stern of this barge. After this had been done, her wheel was put to starboard, and the man on the third barge was called to let go the line to the fourth barge. This, however, was not done, and before the Page could swing sufficiently to clear the tow line she struck, and the fourth barge, which proved to be the Saginaw, came on without apparent change of course, struck the Page a heavy blow on her starboard side between the fore and main rigging, opening up her own bows, and leaving her port anchor hanging on the Page's rail. From the time the Missouri and her tow were first sighted, and until after she crossed the Page's bow, the latter was kept steadily on her course without variance, and after the Missouri had crossed the Page's course, the time and distance were too short for the latter to avoid a collision with one or more barges in the Missouri's tow." The court was assisted upon the argument by Commander Elmer, U. S. N., and Capt. Thomas Hackett, nautical assessors.

Moore & Canfield, for the libelants.

J. W. Finney, for the propeller Missouri.

C. E. Cramer and H. H. Swan, for the Marion W. Page.

BROWN, J., (after stating the facts as above.) We have found no difficulty in disposing of this case. The answer of the Page sets up an improbable state of facts, and the testimony discloses quite a different, but an equally improbable, defense, viz., that the tow was pursuing a southwesterly course down the lake, and so much across the course of the Page that the latter was unable, even with a free wind, to avoid coming into collision with the tow. Had this been the case, we are by no means certain that we should have exonerated the schooner from fault. While the general rule is unquestioned that a steamer, having vessels in tow, is to be considered as a steam-vessel, and bound to keep out of the way of a sailing vessel, this rule is subject to important qualifications, and in fact is of little value where a propeller, having four or five barges in tow, meets a number of sailing vessels, pursuing a different course, with a free wind. In such a case, it is clear, the sailing vessels are much better able to control their movements than the steamer, and it is but just that the duty of avoiding a collision should not rest wholly upon the latter. Such a case would seem to be an exceptional one, and falling within the twenty-fourth rule of special circumstances, rendering a departure from the general rules necessary in order to avoid immediate danger. The Kingston-by-Sea, 3 W. Rob. 152; The La Plata, Swab. 220; The Arthur