certified that the judgment was based solely on the ground that the controversy was one between citizens of different States, that in his opinion the record showed that the defendant was not a citizen of or resident in Illinois, that no other ground of jurisdiction appeared, and that jurisdiction was retained only for the reasons stated. A few days later, but after the writ of error had been taken out and filed, and after a new term of the Circuit Court had begun, the Judge undertook to amend the certificate on the ground that it had been signed inadvertently under a mistake as to its nature and contents, and to certify instead that the question of jurisdiction was not passed upon, but that the ground of the decision was that the plaintiff, being a citizen of Ohio, and therefore presumed not to be a resident of Illinois, was forbidden by the statutes of Illinois to act as administrator, and therefore had no standing to maintain the action or file the plea.

It is obvious that the mistake alleged by the new certificate was not clerical. The Judge did not write one thing when he meant to write another, and no inferior officer made a record not corresponding to the action of the court. We cannot read the words "Under a mistake as to the nature and contents thereof," as meaning that the Judge did not know that he was signing a certificate for this court, or as signifying more than that, if he had given the matter greater attention he would not have signed one saying what it said. The certificate must have received some consideration, as it contains a statement or ruling adverse to the plaintiff, to which we shall refer in a moment. This being so, it appears to us extremely questionable, at least, whether such a certificate, which is an act of record, stands on any different ground from judgments and the like when the term has passed; see Wetmore v. Karrick, 205 U. S. 141, 153, et seq.; Michigan Insurance Bank v. Eldred, 143 U. S 293, and also whether the so-called amendment, supposing it otherwise valid and properly made without leave of this court, can be considered by this court on the present writ of error. Michigan Insurance Bank v. Eldred, 143 U. S. 293; McCarren v.

McNulty, 7 Gray, 139; Rice v. Minnesota & Northwestern R. R. Co., 21 How. 82.

If we were to consider the amendment it would amount to this: The plaintiff pleaded to the jurisdiction of the court as a court of the United States and stood upon his plea. The Judge, however, laid down a proposition of law on which he denied the right of the plaintiff to plead to the jurisdiction, and thereupon took jurisdiction so far as to give judgment for costs. By the analogies of the action of this court in other cases, we should decide for ourselves the preliminary as well as the final question of law in order to decide whether the Circuit Court, as a court of the United States, had the right to give any judgment, even for costs. If the preliminary question should be considered it would seem that the Judge below was wrong in taking the proviso in the Illinois statute (Laws of 1905, p. 2; Hurd, Rev. Stats. 1905, c. 3, § 18, pp. 107, 108), "that no nonresident of this State shall be appointed or act as administrator or executor," as opening the appointment of a citizen of Ohio to this kind of collateral attack. See Simmons v. Saul, 138 U. S. 439; Salomon v. People, 191 Illinois, 290, 294. It is not reasonable to interpret it as making such a severance between the appointment and the power to act which is a consequence of the appointment as to leave the former unimpeachable in these proceedings but its effect open to dispute. The words "or act" may have reference more especially to executors, and may be a reminiscence of the ancient law, by which they derived their powers from the will, a notion that has died hard. At all events presumably they offer an alternative to "shall be appointed," and refer to action without appointment in Illinois, for instance action by an administrator appointed elsewhere, not to action after appointment when one is made. As we read them with our present light, at least, we deem them insufficient to prevent the plaintiff from insisting upon his right to keep out of the United States court.

We proceed then to deal with the merits of the plea. The original certificate declares that the record shows that the de

fendant is not a citizen of or resident in the State of Illinois. If this be correct, it maintains the right to remove, so far as it goes. The right is given in cases of this sort to defendants "being non-residents of that State," that is, of the State in which the suit is brought. Act of August 13, 1888, c. 866, 25 Stat. 433, 434. If the defendant is to be regarded as a citizen of Illinois, the right to remove did not exist. Martin v. Snyder, 148 U. S. 663. It was for this reason, no doubt, that the petition for removal alleged that the defendant was a citizen of Ohio, and that the certificate declared that it was not a citizen of Illinois. But the plea averred that it was organized and existed under the laws of that State as well as of the others named. It is true, however, that it did not and could not traverse the averment of the petition, considered as an averment of fact, and it was demurred to specially on that ground. Therefore the question is raised how a corporation or corporations thus organized shall be regarded for the purposes of a suit like this. No nice speculation as to whether the corporation is one or many, and no details as to the particulars of the consolidation, are needed for an answer. The defendant exists in Illinois by virtue of the laws of Illinois. It is alleged to have incurred a liability under the laws of the same State, and is sued in that State. It cannot escape the jurisdiction by the fact that it is incorporated elsewhere. The assent of the State to such incorporation elsewhere, supposing it to have been given, a matter upon which we express no opinion, cannot be presumed to have intended or to import such a change. This seems to be the opinion of the Supreme Court of Illinois, as it certainly has been shown to be that of this court. Chicago & Northwestern Ry. Co. v. Whitton, 13 Wall. 270; Muller v. Dows, 94 U. S. 444; Memphis & Charleston R. R. Co. v. Alabama, 107 U. S. 581; Quincy Railroad Bridge Co. v. County of Adams, 88 Illinois, 615; Winn v. Wabash R. Co., 118 Fed. Rep. 55. What would be the law in case of a suit brought in Illinois upon a cause of action which arose in Ohio is a question that may be left on one side, as also may be the decisions in cases where a

corporation originally created in one State afterwards becomes compulsorily a corporation of another State for some purposes in order to extend its powers. Southern Ry. Co. v. Ailison, 190 U. S. 326; St. Louis & San Francisco Ry. Co. v. James, 161 U. S. 545. In the case at bar the incorporations must be taken to have been substantially simultaneous and free. See Memphis & Charleston R. R. Co. v. Alabama, 107 U. S. 581. If any distinction were to be made it hardly could be adverse to the jurisdiction of Illinois, in view of the requirements of its constitution and statutes that a majority of the directors should be residents of Illinois, and that the corporation should keep a general office in that State. We are of opinion that the defendant must be regarded in this suit as a citizen of Illinois, and therefore as having had no right to remove. It follows that the cause should be remanded to the state court.

Judgment reversed. Suit to be remanded to the state court.

AMERICAN TOBACCO COMPANY v. WERCKMEISTER.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.

No. 28. Argued October 30, 1907.-Decided December 2, 1907.

In construing a statute, while the court must gain the legislative intent primarily from the language used, it must remember the objects and purposes of the statute and the conditions of its enactment so as to effectuate rather than destroy the spirit of that intent.

The purpose of the copyright statute is not so much to protect the physical thing created as to protect the right of publication and reproduction, and the statute should be construed in view of the character of the property intended to be protected.

In the case of a painting, map, drawing, etc., the copyright notice required by § 4962 Rev. Stat. need not be inscribed upon the original article itself; the statute is complied with if the notice is inscribed upon the published copies thereof which it is desired to protect.

In the United States, property in copyright is the creation of Federal statute passed in the exercise of the power vested in Congress by Article I, § 8, of the Federal Constitution, to promote the progress of science and the useful

arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries, and the statute should be given fair and reasonable construction to effect such purpose. The Federal copyright statute recognizes the separate ownership of the right of copying from that which inheres in the physical control of the thing itself and gives to the assigns of the original owner of the right to copyright the right to take out copyright independently of the ownership of the article itself.

The property of an author or painter in his intellectual creation is absolute until he voluntarily parts therewith. While the public exhibition of a painting or statue where all can see and copy it might amount to a publication, where the exhibition is made subject to reservation of copyright and to restrictions rigidly enforced against copying, it does not amount to a publication.

In a suit brought in replevin under the New York Code to recover infringing copies of the plaintiff's copyrighted article it is too late to object to the form of remedy on the motion for new trial.

Adams v. New York, 192 U. S. 585, and Hale v. Henkel, 201 U. S. 43, followed to effect that defendant's rights under the Fourth and Fifth Amendments were not violated by the seizure of infringing copies of copyrighted articles or by the use thereof as evidence.

146 Fed. Rep. 375, affirmed.

THIS is a writ of error to the Circuit Court of Appeals for the Second Circuit, seeking reversal of a judgment affirming the judgment of the United States Circuit Court for the Southern District of New York in favor of the defendant in error, adjudging him to be entitled to the possession of 1196 sheets, each containing a copy of a certain picture called "Chorus," the same representing a company of gentlemen with filled glasses, singing in chorus. The painting was the work of an English artist, W. Dendy Sadler. The defendant in error claimed to be the owner of a copyright taken out under the laws of the United States.

The judgment was rendered under authority of § 4965, as amended March 2, 1895. 28 Stat. 965; 3 U. S. Comp. Stat. p. 3414.

In January, 1894, by agreement between the artist and Werckmeister, the defendant in error, it was agreed that the painting should be finished by March 1, and then sent to Werckmeister to be photographed and returned to Sadler in time to