Argument for Plaintiff in Error. 207 U.S. and for penalties; the evident purpose of that section is that the proprietor of the copyright shall account to the United States for one-half the money penalty recovered. 148 Fed. Rep. 1022, affirmed. THE facts, which involve the construction of § 4965, Rev. Stats., as amended by the act of March 2, 1895, 28 Stat. 965, and the nature of the action to recover penalties thereunder for violation of copyright, are stated in the opinion. Mr. Antonio Knauth for plaintiff in error: The words used in the statute admit of no other construction than that the two remedies, the recovery of the unlawful sheets and the recovery of the money penalty, are cumulative remedies to which the plaintiff is entitled, and it has been uniformly so held. Previous to the decision in this case by the Circuit Court there was no decision by any court that the two remedies must be sought in one action. Whenever the money penalty is sought to be recovered for sheets which have been found in the defendant's possession, there must be a previous action for the recovery of the sheets and the finding of the sheets therein by means of proper process. Thornton v. Schreiber, 124 U. S. 612; Falk v. Curtis Pub. Co., 107 Fed. Rep. 126, 128. There are intrinsic differences in the actions for the forfeiture of the property and for the payment of the money penalty. The action for the recovery of the forfeited articles is an action in rem. The property in the articles remains in the owner until it is seized, and then by the seizure the title relates back to the time of the forfeiture. Clark v. Protection Ins. Co., 1 Story, 134; United States v. 1,960 Bags of Coffee, 8 Cranch, 398; Gelston v. Hoyt, 3 Wheat. 246, 311; United States v. Baker, 5 Ben. 28; Fontaine v. Phoenix Ins. Co., 11 Johns. (N. Y.) 292; Amory v. McGregor, 15 Johns. 23; Henderson's Distilled Spirits, 14 Wall. 44, 56; Thacher's Distilled Spirits, 103 U. S. 679; The Mary Celeste, 2 Lowell, 356. 207 U.S. Argument for Plaintiff in Error. The action for the recovery of forfeited articles is always regarded as an action in rem. United States v. Spring Valley Distillery, 11 Blatch. 267. As the action for the recovery of the forfeited articles is an action in rem, the court has jurisdiction over the forfeited articles, whenever they are within the territorial jurisdiction of the court, and personal service of process upon the defendant in the action is not an essential prerequisite to the maintenance of the action. The court would have power to call in the defendant by publication or service of the summons outside of the State. Act of March 3, 1875, § 8 (18 Stat. at L. 470, 472), amending Rev. Stat., § 738; also 25 Stat. 434; Jellenik v. Huron Copper Min. Co., 177 U. S. 1; Mellen v. Moline, 131 U. S. 352. The defendant American Tobacco Company being a New Jersey corporation, this court had undoubtedly jurisdiction to proceed in the replevin action without personal service, but no jurisdiction to proceed to a decree in the personal action unless the defendant appeared or could be found in this jurisdiction. Scott v. McNeal, 154 U. S. 34, 46. On the other hand, the action to be brought for the recovery of the money penalty is a personal action, and can be maintained only when the defendant is personally found within the jurisdiction of the court. The term "forfeit" as applied to a money penalty, means only that the offender shall be made to pay the amount. It means a fine, a mulct. In re Levy, 30 Ch. Div. 119; Merchants' Bank v. Bliss, 21 How. Pr. (N. Y.) 370; Ex parte Alexander, 39 Mo. App. 108; People v. Nedrow, 122 Illinois, 367; Commonwealth v. Avery, 14 Bush (Ky.), 638; Taylor v. Steamer Marcella, 1 Woods, 304. The fiction that the title to forfeited property dates back to the time of the commission of the wrong is applied because convenience and justice require its application. Union Re frigerator Transit Co. v. Kentucky, 199 U. S. 194, 208. It is quite different with the money penalty, which cannot be dated back any further than to the day of finding the sheets in defendant's possession, because that very finding Argument for Defendant in Error. 207 U.S. is a condition precedent to the accruing of the money penalty. As to the sheets, the plaintiff has an inchoate title, which exists as soon as they are wrongfully made, and this inchoate title ripens into a complete title upon condemnation. As to the recovery of the money penalty he can have no such inchoate right; it is a mere claim for payment which arises only after the finding. It follows from the different nature of the two remedies which are required to enforce the two distinct forfeitures under the statute, that there will be frequently cases where they cannot be combined. If the property is found in one State, in the hands of an agent or employé, while the offender resides in another State, he could not be sued in the State of his residence, because the property could not be found therein. Neither could he be sued in the State where the property was found, because for the purposes of a personal action the court will have no jurisdiction over him. If the rule should be established that one suit only can be brought, the plaintiff would lose the money penalty in such a case, if the two remedies must be combined. Mr. William A. Jenner for defendant in error: A second and separate action will not lie for penalties after a judgment in a former distinct action for forfeiture of sheets. There cannot be two actions, one for the forfeiture of sheets, the other for the money penalty. There is only one offense committed by doing one or other or all the things mentioned in § 4965. Bolles v. Outing Co., 77 Fed. Rep. 966; S. C., 175 U. S. 266. The solution of the matter seems to be to permit in one action a forfeiture of sheets found in possession when it is commenced and in the same action to adjudge the penalties for the sheets so found. MR. JUSTICE-DAY delivered the opinion of the court. This case was argued and submitted with American Tobacco Company v. Werckmeister, decided December 2, 1907, ante, p. 284. The present action was brought to recover, under § 4965, Revised Statutes, relating to copyright (3 U. S. Compiled Stat. 3414), the penalties of $10 each, for 1,196 sheets of the alleged infringing publications claimed to have been found in the defendant's possession and seized by the United States marshals, under the two writs of replevin described in that suit. Plaintiff in error, Werckmeister, offered in evidence the judgment roll in the former suit, with the pleadings and judgment, and also offered in evidence the writs and returns of the marshals for the Southern and Western Districts of New York, respectively, showing seizures of 203 copies and 993 copies; the court excluded these writs as immaterial. No other evidence being offered, the court instructed the jury to render a verdict for the defendant, and judgment was afterwards rendered accordingly upon the verdict: 138 Fed. Rep. 162. On writ of error to the Circuit Court of Appeals the judgment below was affirmed, 148 Fed. Rep. 1022, and this writ of error is prosecuted to reverse the judgment of the Circuit Court of Appeals. This action requires the construction of § 4965, Rev. Stat., as amended March 2, 1895, 28 Stat. 965 (U. S. Compiled Stat., vol. 3, p. 3414), which is as follows: "SEC. 4965. If any person, after the recording of the title of any map, chart, dramatic or 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 act, shall, within the term limited, contrary to the provisions of this act, 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, dramatize, translate, or import, either in whole or in part, or by varying the main design, with intent to evade the law, or, knowing the same to be so printed, published, dramatized, translated, 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: Provided, however, That in case of any such infringement of the copyright of a photograph made from any object not a work of fine arts, the sum to be recovered in any action brought under the provisions of this section shall be not less than one hundred dollars, nor more than five thousand dollars, And: Provided further, That in case of any such infringement of the copyright of a painting, drawing, statue, engraving, etching, print or model or design for a work of the fine arts or of a photograph of a work of the fine arts, the sum to be recovered in any action brought through the provisions of this section shall be not less than two hundred and fifty dollars, and not more than ten thousand dollars. One-half of all the foregoing penalties shall go to the proprietors of the copyright and the other half to the use of the United States." As with the sections of the copyright act under consideration in Tobacco Company v. Werckmeister, ante, this section has been the subject of consideration in the Federal courts, with different conclusions as to its purport and meaning. While the statute provides for the forfeiture of the plates and sheets and for the sum of $10 in case of a painting, for every copy found in the offending person's possession or sold by him, it is silent as to the kind of action to be brought, and we are left to discover the meaning of the act in this respect from a consideration of the |