AMERICAN TOBACCO COMPANY, PUT. in Err., v.

EMIL WERCKMEISTER, ' Deft, in Err.

(See S. C. Reporter’s ed. 284-302.)

Copyright — inscribing notice on orig¬ inal painting.

the published copies without placing such inscription upon the original painting sat¬ isfies the requirement of U. S. Rev. Stat. § 4962, as amended by the act of June 18, 1874 (18 Stat. at L. 78, chap. 301, U. S. Comp. Stat. 1901, p. 3411), that such notice shall be inserted in the several copies of every edition published, on the title page or the page immediately following, if it be a book; or, if a map, chart, musical com¬ position, print, cut, engraving, photograph, painting, drawing, cliromo, statuary, or model or design intended to be perfected and completed as a work of the fine arts, upon some visible portion thereof, or of the sub¬ stance on which the same shall be mounted. Copyright — transfer of right.

right of copyright existing in an original painting, and not a mere license or personal privilege, must be deemed intended by an instrument executed by the artist, reciting that, for a named consideration, he trans-

Note. — As to conditions and extent of copyright — see note to Belford, C. & Co. v. Scribner, 36 L. ed. U. S. 514.

Exhibition of picture as a publication.

In Pierce & B. Mfg. Co. v. Werckmeister, 18 C. C. A. 431, 33 U. S. App. 399, 72 Fed. 54, Reversing 63 Fed. 445, it was held by a divided court that public exhibitions of a painting in Europe for two months in one public gallery, and during the following sum¬ mer in another, without any notice of copy¬ right, amounts to publishing the picture, within the meaning of the United States copyright laws.

Ihe opinion in this case is said, in Werck- meister v. American Lithographic Co. 68 L.R.A. 591, 69 C. C. A. 553, 134 Fed. 321,

20 7 U. S.

285, 286

American Tobacco Co. v. Werckmeister.

fers the copyright in his painting, where there is no evidence of any intention on his part to retain any further interest in this copyright, and he offers the painting for sale with the copyright reserved.

Copyright — who may take out — as¬ signs.

his painting, assign, independently of the ownership of the painting itself, the right or privilege of taking out the copyright se¬ cured by U. S. Rev. Stat. § 4952, as amend¬ ed by the act of March 3, 1891 (2G Stat. at L. 110C, chap. 505, U. S. Comp. Stat. 1901, p. 3406), to the “author, inventor, de¬ signer, or proprietor . . . and the exec¬

utors, administrators, or assigns of any such person.”

Copyright — publication.

copyright reserved at an exhibition of the Royal Academy, whose by-laws prohibit copying, is not such a publication as de¬ feats the right to take out a copyright in such painting.

Appeal and error — objection — when too late.

comes too late to be available in an appel¬ late court when first made on a motion for new trial after verdict.

Constitutional law — searches and seiz¬ ures — due process of law.

fendant in an action for the forfeiture of infringing copies of a painting protected by copyright are not violated by the admission in evidence of the replevin proceedings un¬ der which such infringing copies were seized, over the objection that, by such pro¬ ceedings, rights under the 4th and 5th Amendments to the Federal Constitution were invaded.

[No. 28.]

Argued October 30, 1907. Decided Decem¬ ber 2, 1907.

IN ERROR to the United States Circuit Court of Appeals for the Second Circuit

to be based apparently on the assumption, in the absence of proof that copying was prohibited, that the painting was publicly exhibited and therefore published within the meaning of the copyright act; and it was accordingly held in the last-cited case that the exhibition of a painting at an academy of arts to which the public is admitted only by payment of a fee, and the rules of which expressly forbid patrons to copy paintings while so on exhibition, is not a publication, although it contains no notice of copyright, which will prevent the artist or his assignee from enforcing against persons subsequently attempting to publish copies of it for com¬ mercial purposes the rights which would have been secured by compliance with the copyright law.

Nor will the exhibition of a picture in a

52 L. ed.

to review a judgment which affirmed a judg¬ ment of the Circuit Court for the South¬ ern District of New York for the forfeiture of certain infringing copies of a painting protected by copyright. Affirmed.

See same case below, 70 C. C. A. 647,

140 Fed. 375.

Statement by Mr. Justice Day:

This is a writ of error to the circuit court of appeals for the second circuit, seeking reversal of a judgment affirming the judg¬ ment of the United States circuit court for the southern district of New York in fa¬ vor 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 represent¬ ing a company of gentlemen with filled glasses, singing in chorus. The painting was the work of an English artist, W. Den- dy Sadler. The defendant in error claimed to be the owner of a copyright taken out under the law of the United States.

The judgment was rendered under author¬ ity of § 4905, as amended March 2, 1895 ( [28 Stat. at L. 905, chap. 194] U. S. Comp.

Stat. 1901, 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 *exhibit

at the Royal Academy in 1S94. The paint¬ ing was sent to Werckmeister at Berlin, where it was received on March 8, 1894, and was returned to Sadler in London on March 22, 1894. On April 2, 1894, the art¬ ist Sadler executed and delivered the follow¬ ing instrument:

1 hereby transfer the copyright in my picture “Chorus” to the Photographische

salon, the public not being permitted to copy it, and the publication in the salon catalogue of a crayon sketch of it, amount to an abandonment or dedication to the pub¬ lic, nor end the artist’s common-law rights. Werckmeister v. Springer Lithographing Co.

03 Fed. 808.

The exhibition of a picture by the artist at the Royal Academy, the publication, by his permission, of a wood engraving of it in a magazine, and its exhibition by the pur¬ chaser, who sold the copyright to the plain¬ tiff to produce engravings, and gave him leave to exhibit the picture to obtain sub¬ scribers, has been held not to amount to a publication so as to affect the owner’s com¬ mon-law rights, as the English statutes of the time did not cover paintings. Turner v. Robinson, 10 Ir. Ch. Rep. 121.

14 309

286-288

Supreme Court of the United States.

Oct. Term,

Gesellschaft, Berlin (The Berlin Photo¬ graphic Company), for the sum of £200. London, April 2, 1894.

(Signed) W. Dendy Sadler.

Werckmeister was a citizen of the Ger¬ man Empire, doing business in Berlin, Ger¬ many, under the trade name of “Photo- graphische Gesellschaft,” and did business in New York city under the name of the “Berlin Photographic Company.”

The Photographische Gesellschaft of Ber¬ lin, by letter dated March 31, 1894, received on April 10, 1894, deposited the title and description of the painting and a photo¬ graph of the same in the office of the Libra¬ rian of Congress, the intention being to ob¬ tain a copyright under the act of Congress. [Rev. Stat. 4950] U. S. Comp. Stat. 1901, p. 3407. After the painting was returned to London it was exhibited by Sadler at the exhibition of the Royal Academy at London, and was there on exhibition for about three months; the exhibition opening the first Monday of May and closing the first Mon¬ day of August, 1894. The exhibition was opened to the public on week days, from 8 A. m. to 7 p. m. upon the payment of the ad¬ mission fee of 1 shilling, and during the last week was open evenings, the entrance charge being C ponce. There was a private view for the press on May 2, and on May 3 up to 1 o’clock, and the remainder of the day was for the Royal private view. There was also a general private view on May 4. The mem¬ bers and the associate members of the Royal Academy and the artists exhibiting at the exhibition and their families were en¬ titled at all times to free admission, and they, as well as the public, visited the exhi¬ bition in large numbers.

During the time that the painting was shown at the exhibition it was not inscribed [2S7]as a copyright, nor were any words *thereon indicating a copyright, nor on the substance on which it was mounted, nor on the frame, as required by the copyright act ([18 Stat. at L. 78, chap. 301] U. S. Comp. Stat. 1901, p. 3411), if the original painting is within the requirements of the law in this respect.

The painting, while on exhibition, was for sale at the Royal Academy, but with the copyright reserved, which reservation was entered in the gallery sale book. The by¬ laws of the Royal Academy provided “that no permission to copy works on exhibition shall on any account be grantecl.” The rea¬ sons for the by-law, as it appears upon min¬ utes of the Academy, are as follows:

“That so much property in copyright be¬ ing intrusted to the guardianship of the Royal Academy, the council feel themselves compelled to disallow, in future, all copying 210

within their walls from pictures sent for exhibition.”

The photogravures of the painting were placed on sale in June, .1894, or in the au¬ tumn of 1894; those photogravures were in¬ scribed with the notice of copyright.

Mr. Sadler, the artist, afterwards, in Oc¬ tober, 1899, sold the painting to a Mr. Cot- terel, residing in London, England, since which time, so far as has been shown, it has been hanging in the dining room of the house of that gentleman.

On June 20, 1902, Werckmeister com¬ menced an action, by the service of a sum¬ mons, against the American Tobacco Com¬ pany, plaintiff in error, and on the same day a writ of replevin was issued out of the circuit court of the LTnited States for the southern district of New York, directed to the marshal of the same district, requiring him to replevin the chattels described in an annexed affidavit. Under the writ the mar¬ shal seized upon the premises of the Ameri¬ can Tobacco Company 203 pictures. On July 23, 1902, Werckmeister caused another writ of replevin to issue out of the same court, directed to the marshal of the west¬ ern district of New York, under which writ the marshal seized 996 pictures.

An amendment to the complaint set forth the seizure of the pictures. The copies seized -were adjudged to be forfeited to the plaintiff, Werckmeister, and to be of the value of $1,010.

*The judgment rendered in the circuit[2&8] court was taken upon error to the United States circuit court of appeals and there affirmed. 76 C. C. A. 647, 146 Fed. 375.

The present writ of error is prosecuted to reverse the judgment of the court of ap¬ peals.

Mr. William A. Jenner argued the cause and filed a brief for plaintiff in error:

The object of the notice is to notify the public — whoever sees the painting — that the rights of statutory copyright have su¬ pervened.

Burrow-Giles Lithographic Co. v. Saro- ny, 111 U. S. 53, 55, 28 L. ed. 349, 350, 4 Sup. Ct. Rep. 279.

Infringements of copyrights are, under U. S. Rev. Stat. § 4965, U. S. Comp. Stat.

1901, p. 3414, penal in their nature, and the consequences are severe, as they involve both forfeitures and penalties.

Backus v. Gould, 7 How. 798-811, 12 L. ed. 919-924; Bolles v. Outing Co. 175 U.

S. 262-264, 44 L. ed. 156, 157, 20 Sup. Ct.

Rep. 94.

To get at the thought or meaning ex¬ pressed in a statute, a contract, or a Con¬ stitution, the first resort, in all cases, is to the natural signification of the words, in

‘iOl u. s.

American Tobacco Co. v. Webckmeisteb.

the order of grammatical arrangement in which the framers of the instrument have placed them.

Lake County v. Rollins, 130 U. S. 662- 670, 32 L. ed. 1060-1062, 9 Sup. Ct. Rep.

One canon of interpretation is that qual¬ ifying words and phrases should be con¬ fined to their next antecedent.

United States v. Lacher, 134 U. S. 624,

33 L. ed. 1080, 10 Sup. Ct. Rep. 625; Caha v. LTnited States, 152 U. S. 214, 38 L. ed. 416, 14 Sup. Ct. Rep. 513.

A verbal notice is not notice, nor is any notice of the copyright other than that de¬ rived from an inscribed notice, conforming to the statute, any notice at all.

Mifflin v. R. H. White Co. 190 U. S. 264, 47 L. ed. 1042, 23 Sup. Ct. Rep. 769.

A prior act may be regarded when nec¬ essary to construe doubtful language.

United States v. Lacher, 134 U. S. 624- 6.26, 33 L. ed. 1080-1082, 10 Sup. Ct. Rep.

It is true, the owner of the painting, if he sells it, or the owner of the copyright, may give oral or written notice, by ad¬ vertisement or oral proclamation, of the copyright taken, but unless the notice is inscribed, and unless it is given by the copyright owner, it is not the notice re¬ quired by the statute, and, therefore, is no notice at all.

Thompson v. Hubbard, 131 U. S. 123, 33

L. ed. 76, 9 Sup. Ct. Rep. 710.

Where the language is plain and unam¬ biguous, a refusal to recognize its natural, obvious meaning would be justly regarded as indicating a purpose to change the law by judicial action, based upon some sup¬ posed policy of Congress.

Bate Refrigerating Co. v. Sulzberger, 157 U. S. 1-36, 39 L. ed. 001-611, 15 Sup. Ct. Rep. 508; Hadden v. The Collector (Had den v. Barney) 5 Wall. 107-111, 18 L. ed. 518, 519; Denn ex dem. Scott v. Reid, 10 Pet. 524-527, 9 L. ed. 519, 520; St. Paul,

M. & M. R. Co. v. Phelps. 137 U. S. 528,

34 L. ed. 767, 11 Sup. Ct. Rep. 168.

The primary rule is ttiat a statute is to receive the meaning which the ordinary reading of its language warrants.

United States v. Fisher, 2 Cranch, 386, 2 L. ed. 313; United States v. Hartwell, 6 Wall. 395, 18 L. ed. 832; United States v. Wiltberger, 5 Wheat. 95, 5 L. ed. 42.

The notice is a condition precedent to perfecting the copyright.

Thompson v. Hubbard, 131 U. S. 123-150, 33 L. ed. 76-86, 9 Sup. Ct. Rep. 710; Wheaton v. Peters, 8 Pet. 591, 8 L. ed. 1055; Merrell v. Tice, 104 U. S. 557, 26 L. ed. 854; Callaghan v. Myers, 128 U.

52 L. ed.

617, 652, 32 L. ed. 547, 557, 9 Sup. Ct. Rep.

There is no common-law copyright in this country and never has been. If there ever was, it has been superseded by the statute.

Holmes v. Hurst, 174 U. S. 85, 43 L. ed. 905, 19 Sup. Ct. Rep. 606.

However the question may arise, the test of publication is whether the public have, by the author’s consent, access to the sub¬ ject. The test is not in any restriction which may be placed on the public’s use of the thing, nor in any understanding which may be imposed upon the public, by the author’s conditions, nor in the fact that the public are required to pay for the priv¬ ilege of access. The fact that the public are invited to read, to see, is enough.

Jewelers’ Mercantile Agency v. Jewelers’ Weekly Pub. Co. 155 N. Y. 241, 41 L.R.A. 846, 63 Am. St. Rep. 666, 49 N. E. 872; Callaghan v. Myers, 128 U. S. 617, 657, 32 L. ed. 547, 559, 9 Sup. Ct. Rep. 177; Larrowe-Loisette v. O’Loughlin, 88 Fed. 896; Holmes v. Hurst, 76 Fed. 757, 25 C. C. A. 610, 51 U. S. App. 271, 80 Fed. 514, 174 U. S. 82, 43 L. ed. 904, 19 Sup. Ct. Rep. 606; Ladd v. Oxnard, 75 Fed. 703; Bartlette v. Crittenden, 4 McLean, 300, Fed. Cas. No. 1,082.

To constitute a publication it is neces¬ sary that the work should be exposed for sale or offered gratuitously to the general public, so that any person may have an opportunity of enjoying it.

Copinger, Copyright, 3d. ed. p. 119; Jew¬ elers’ Mercantile Agency v. Jewelers’ Week¬ ly Pub. Co. 155 N. Y. 251, 41 L.R.A. 846, 63 Am. St. Rep. 666, 49 N. E. 872; Prince Albert v. Strange, 2 De G. & S. 652.

Because of the great dissimilarities be¬ tween the British statutes and our own, British cases can throw little light on the principles discussed above.

Respecting the application of U. S. Rev. Stat. § 4962, U. S. Comp. Stat. 1901, p. 3411, to foreign paintings, the question of extraterritoriality does not arise.

McLoughlin v. Raphael Tuck & Sons Co. 191 U. S. 267, 48 L. ed. 178, 24 Sup. Ct. Rep. 105.

A license in respect to real estate is defined to be an authority to do a particu¬ lar act or series of acts on another’s land without possessing any estate therein.

Sullivan Timber Co. v. Mobile, 110 Fed. 195; Emerson v. Birgin, 76 Cal. 197, 18 Pac. 264; 1 Washb. Real Prop. 398; Bagg v. Robinson, 12 Misc. 299, 34 N. Y. Supp.

The word “license” means permission or authority; and the license to do any partic¬ ular thing is an authority to do that thing.

211

Supreme Court or

Gibbons v. Ogden, 9 Wheat. 193, 6 L. ed. 69; United States v. The Planter, Newb. 262, Fed. Cas. No. 16,054; Clark v. Glid- den, 60 Vt. 702, 15 Atl. 358.

In the law of patents, a license is an authority to exercise some of the privileges secured by the patent, but which still leaves in the patentee the monopoly of the patent.

Theberath v. Celluloid Mfg. Co. 5 Bann. & Ard. 577, 3 Fed. 147; McKay v. Smith, 39 Fed. 558.

The sole matter conveyed by a license is the right not to be sued by the patentee.

Heaton-Peninsular Button-Fastener Co. v. Eureka Specialty Co. 35 L.R.A. 728, 25 C. C. A. 267, 47 U. S. App. 146, 77 Fed.

A license is not assignable or descendi¬ ble without apt words.

Oliver v. Rumford Chemical Works, 109 U. S. 75, 27 L. ed. 862, 3 Sup. Ct. Rep. 61 ; Troy Iron & Nail Factory v. Corning, 14 How. 193-216, 14 L. ed. 383-393; Bowers v. Lake Superior Contracting & Dredging Co. 79 C. C. A. 493, 149 Fed. 986.

The marshals’ proceedings would seem to have been in violation of defendant’s rights under the 4th Amendment to the Constitu¬ tion, as they constituted an unreasonable search and seizure, and also in violation of defendant’s rights under the 5th Amend¬ ment, as a taking of property without due process of law.

Boyd v. United States, 116 U. S. 616, 633, 29 L. ed. 746, 752, 6 Sup. Ct. Rep. 524.

Mr. Antonio Knauth argued the cause and filed a brief for defendant in error:

Both in England and in the United States an absolute property in unpublished intellectual creations of art and literature is recognized which no one can take from the producer without his consent.

Banker v. Caldwell, 3 Minn. 94, Gil. 46; Palmer v. DeWitt, 47 N. Y. 532, 7 Am. Rep. 480; Tabor v. HofTman, 118 N. Y. 30, 16 Am. St. Rep. 740, 23 N. E. 12; Tomp¬ kins v. Halleck, 133 Mass. 32, 43 Am. Rep. 480; Ockenholdt v. Frohman, 60 Ill. App. 300; Cooley, Torts, If 354; Morgan, Liter¬ ature, If 386; Shortt, Literature, If 48; Bell, Scotland, If 1356; Drone, Copyright, p. 103; Parton v. Prang, 3 Cliff. 537, Fed. Cas. No. 10,784; Goldmark v. Kreling, 35 Fed. 661 ; Aronson v. Baker, 43 N. J. Eq. 365, 12 Atl. 177; Press Pub. Co. v. Mon¬ roe, 51 L.R.A. 353, 19 C. C. A. 429, 38 U. S. App. 410, 73 Fed. 196; 7 Am. & Eng. Enc. Law, 2d ed. p. 517 ; Donaldson v. Becket, 4 Burr. 2408; Turner v. Robinson, 10 Ir. Ch. Rep. 513; Jefferys v. Boosey, 4 H. L. Cas. 867 ; Prince Albert v. Strange, 1 Macn. & G. 25.

212

the United States. Oct. Term,

This exclusive right of the author to con¬ trol the publication of his work until, by a publication, it may be dedicated to the public, is an incorporeal right, entirely disconnected from the substance in which the thought or mental creation may be em¬ bodied.

Millar v. Taylor, 4 Burr. 2303; Jefferys v. Boosey, 4 H. L. Cas. 888; Stephens v. Cady, 14 How. 528, 14 L. ed. 528; Stevens v. Gladding, 17 How. 447, 15 L. ed. 155; Patterson v. J. S. Ogilvie Pub. Co. 119 Fed. 451; Bryan v. University Pub. Co. 112 N. Y. 386, 2 L.R.A. 638, 19 N. E. 825; 7 Am. & Eng. Enc. Law, 2d. ed. p. 512.

As property, this right is assignable, ir¬ respective of the substance.

Turner v. Robinson, 10 Ir. Ch. Rep. 121.

The same rules apply to pictures, draw¬ ings, and the like, as to any other subject of copyright.

Prince Albert v. Strange, 2 De G. & S. 652, 1 Macn. & G. 25; Burrow-Giles Lith¬ ographic Co. v. Sarony, 111 U. S. 53, 28 L. ed. 349, 4 Sup. Ct. Rep. 279; Werckmeisfer v. Springer Lithographing Co. 63 Fed. 808.

In the case of manuscripts it would be impossible to determine to which of them this incorporeal right should cling, should there be more than one, as is often the case. This is likewise so in the case of lectures which are delivered orally, but may be written out by the students with¬ out imparting to them any right of publi¬ cation as long as the lecture has not been published by the lecturer.

Bartlett v. Crittenden, 5 McLean, 32, Fed. Cas. No. 1,076; Queensbury v. Slieb- beare, 2 Eden, 329; Abernethy v. Hutchin¬ son, 3 L. J. Ch. 209; Keene v. Kimball, 16 Gray, 549, 77 Am. Dec. 426; Nicols v. Pit¬ man, L. R. 26 Ch. Div. 374; Callaghan v. Myers, 128 U. S. 617, 32 L. ed. 547, 9 Sup. Ct. Rep. 177; Caird v. Sime, L. R. 12 App. Cas. 326; Crowe v. Aiken, 2 Biss. 208, Fed. Cas. No. 3,441; 2 Story, Eq. Jur. § 943; Drone, Copyright, p. 99; Palmer v. De- Witt, 47 N. Y. 532, 7 Am. Rep. 480.

Again, it is well established in the case of letters, that, although the receiver of the letter is the owner of the letter itself, he has no right to publish the same, which right remains in the sender of the letter. This has always been the law in England and in this country.

Pope v. Curl, 2 Atk. 342; Thompson v. Stanhope, 2 Ambl. 737; Granard v. Dunkin, 1 Ball. & B. 207 ; Perceval v. Phipps, 2 Ves. & B. 19; Gee v. Pritchard, 2 Swanst. 402; Palin v. Gathercole, 1 Colly. Ch. Cas. 565; Oliver v. Oliver, 11 C. B. N. S. 139; Re Wheatcroft, L. R. 6 Ch. Div. 97; Lytton v. Devey, 54 L. J. Ch. N. S. 293; Howard v. Gunn, 32 Beav. 462.

20 7 U. S,

American Tobacco Co. v. W erckmeisteb.

The same principles are recognized and applied in the American cases.

Denis v. Leclerc, 1 Mart. (La.) 297, 5 Am. Dec. 712; Folsom v. Marsh, 2 Story, 100, Fed. Cas. No. 4,901; Woolsey v. Judd, 4 Duer, 379; Grigsby v. Breckinridge, 2 Bush, 480, 92 Am. Dec. 509; 2 Story, Eq. Jur. pp. 946-948; Carter v. Bailey, 64 Me. 458, 18 Am. Rep. 273; Agawam Woolen Co. v. Jordan, 7 Wall. 583, 19 L. ed. 177; Holmes v. Hurst, 174 U. S. 82, 43 L. ed. 904, 19 Sup. Ct. Rep. 606; Mifflin v. R. H. White Co. 190 U. S. 260, 47 L. ed. 1040, 23 Sup. Ct. Rep. 769; Palmer v. DeWitt and Werckmeister v. Springer Lithograph¬ ing Co. supra; Press Pub. Co. v. Monroe, 51 L.R.A. 353, 19 C. C. A. 429, 38 U. S. App. 410, 73 Fed. 196.

A parol assignment would have been sufficient.

Callaghan v. Myers, supra; Lawrence v. Dana, 4 Cliff. 1, Fed. Cas. No. 8,136; Black v. Henry G. Allen Co. 9 L.R.A. 433, 42 Fed. 618 ; Belford, C. & Co. v. Scribner, 144 U. S. 488, 36 L. ed. 514, 12 Sup. Ct. Rep. 734.

The assignment of the common-law copy¬ right would also be presumed from a for¬ mer assignment of a secured copyright for a term allowed by an existing statute, which is afterwards amended so as to lengthen the term of protection.

Paige v. Banks, 13 Wall. 608, 20 L. ed.

A sale of the painting without the copy¬ right, and, again, a sale of the copyright without the painting, could undoubtedly be made in England, which was, at the time of the transaction, a party to the Berne convention. Even before it acceded to that convention, it was recognized by the Eng¬ lish copyright statute that the author might sell the picture and reserve to him¬ self the copyright, or vice versa; and that the assignee of the copyright was entitled to the statutory protection upon register¬ ing his title.

Cocks v. Purday, 5 C. B. 860; Turner v. Robinson, 10 Ir. Ch. Rep. 510; Copinger, Copyright, 3d ed. pp. 122, 440-442; Cum¬ berland v. Planche, 1 A'd. & El. 580; Steph¬ en’s Dig. Eng. Law of Copyright, p. 198.

The copyright statute intended to refer to the same person by the words “legal as¬ signs” and “proprietor.”

Mifflin v. R. H. White Co. supra.

The assignee of the copyright would be similarly regarded as entitled to register the copyright under the statute in England as the “proprietor.” The English act de¬ fines the word “assigns” to mean and in¬ clude every person in whom the interest of an author in copyright shall be vested, whether derived from such author before or 62 lu ed.

after the publication of any book, and whether acquired by sale, gift, bequest, or by operation of law or otherwise.

Lover v. Davidson, 1 C. B. N. S. 182; Copinger, Copyright, 3d ed. p. 177; Mac- gillivray, Copyright, pp. 171-177.

The phraseology of the statute is un¬ doubtedly obscure; it has, however, never been held as regulating any existing com¬ mon-law rights, but as creating and con¬ ferring upon authors, as a compensation for their contributions to the promotion of general knowledge, the exclusive right to their respective writings for limited times.

Carter v. Bailey and Holmes v. Hurst, supra; Wabash R. Co. v. Pearce, 192 U. S. 179, 186, 48 L. ed. 397, 399, 24 Sup. Ct. Rep. 231.

The exhibition of the picture at the Roy¬ al Academy was not a publication.

Abernethy v. Hutchinson, 3 L. J. Ch. 209; Nicols v. Pitman, L. R. 26 Ch. Div. 374; Caird v. Sime, L. R. 12 App. Cas. 326; Parton v. Prang, 3 Cliff. 537, Fed. Cas. No. 10,784; Tompkins v. Halleck, 133 Mass. 32, 43 Am. Rep. 480; Palmer v. DeWitt, 47 N. Y. 532; Turner v. Robinson, supra; Werckmeister v. Springer Lithographing Co. 63 Fed. 808.

For the purposes of the present case it would seem to be immaterial whether or not the original picture is included in the words “in the several copies of every edi¬ tion published,” because clearly the stat¬ ute cannot be construed to require a no¬ tice on the unpublished painting. The ob¬ ject of the statute requiring notice is to give notice to the public. The statutes re¬ fer only to the published edition, which is an edition offered to the public for sale or circulation.

Falk v. Gast Lithograph & Engraving Co. 4 C. C. A. 648, 14 U. S. App. 15, 54 Fed. 894; Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 28 L. ed. 349, 4 Sup. Ct. Rep. 279; Snow v. Mast, 65 Fed. 995; 7 Am. & Eng. Enc. Law, 2d ed. p. 555; Thompson v. Hubbard, 131 U. S. 123, 150, 33 L. ed. 76, 86, 9 Sup. Ct. Rep. 710; Mifflin v. R. H. White Co. 190 U. S. 260, 47 L. ed. 1040, 23 Sup. Ct. Rep. 769.

After assigning the entire copyright in the painting, the artist could not, by any act on his part, destroy the assignee’s copyright.

Paige v. Banks, 13 Wall. 608, 615, 20 L. ed. 709, 711; Boucicault v. Wood, 2 Biss. 34, Fed. Cas. No. 1,693; Crowe v. Aiken, 2 Biss. 208, Fed. Cas. No. 3,441 ; Palmer v. DeWitt, supra; Goldmark v. Kreling, 35 Fed. 661; American Press Asso. v. Daily Story Pub. Co. 66 L.RA.. 444, 57 C. C. A. 70, 120 Fed. 766.

213

290-292

Supreme Court of the United States.

Oct. Term,

Abandonment always requires an inten¬ tion to abandon; and, in order to prove that defense, the proofs must establish such an intention, either by direct evidence or by a necessary inference from the facts.

Saxlehner v. Eisner & M. Co. 179 U. S. 19, 45 L. ed. 60, 21 Sup. Ct. Rep. 7.

In order to fully understand the force and scope of any statute or body of stat¬ utes, we must have regard to the conditions and circumstances for which the legislation was intended, and under which it is to be¬ come operative. We are not narrowly to read the letter and ignore the state of af¬ fairs to which that legislation was intended and is applicable.

Wabash R. Co. v. Pearce, 192 U. S. 179, 48 L. ed. 397, 24 Sup. Ct. Rep. 231.

The seizure of the sheets containing the illegal copies wa3 not an illegal proceeding, nor an invasion of the defendant’s con¬ stitutional right, as provided by the 4th and 5th Amendments.

Boyd v. United States, 116 U. S. 616, 623, 641, 29 L. ed. 746, 748, 754, 6 Sup. Ct. Rep. 524. See also Adams v. New York, 192 U. S. 585, 597, 48 L. ed. 575, 580, 24 Sup. Ct. Rep. 372.

U. S. Rev. Stat. § 860, U. S. Comp. Stat. 1901, p. 661, does not apply to evidence fur¬ nished by the issuing of and seizure under a writ of the court.

United States v. Hughes, 12 Blatchf. 553, Red. Cas. No. 15,417.

Mr. Justice Day delivered the opinion of the court-.

This case involves important questions under the copyright laws of the United States, upon which there has been diversity of view in the Federal courts.

Before taking up the errors assigned it may aid in the elucidation of the questions involved to briefly consider the nature of the property in copyright which it is the object of the statutes of the United States to secure and protect. A copyright, as the term imports, involves the right of publica¬ tion and reproduction of works of art or literature. A copyright, as defined by Bou- vier’s Law Dictionary, Rawles’s edition, vol¬ ume 1, p. 436, is: “The exclusive privilege, [2 91]secured according to certain legal “forms, of printing, or otherwise multiplying, publish¬ ing, and vending copies of certain literary or artistic productions.” And further, says the same author, “the foundation of all rights of this description is the natural do¬ minion which everyone has over his own ideas, the enjoyment of which, although they are embodied in visible forms or characters, he may, if he chooses, confine to himself or impart to others.” That is, the law recog¬ nizes the artistic or literary productions of 214

intellect or genius, not only to the extent which is involved in dominion over and own¬ ership of the thing created, but also the in¬ tangible estate in such property which arises from the privilege of publishing and selling to others copies of the thing pro¬ duced.

There was much contention in England as to whether the common law recognized this property in copyright before the statute of Anne; the controversy resulting in the de¬ cision in the House of Lords in the case of Donaldson v. Becket, 4 Burr, 2408, the re¬ sult of the decision being that a majority of the judges, while in favor of the common- law right, held the same had been taken away by the statute. See Wheaton v. Peters,

8 Pet. 591-656, 8 L. ed. 1055-1079; Holmes v. Hurst, 174 U. S. 82, 43 L. ed. 904, 19 Sup.

Ct. Rep. 606.

In this country it is well settled that prop¬ erty in copyright is the creation of the Fed¬ eral statute passed in the exercise of the power vested in Congress by the Federal Constitution in article 1, § 8, “to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their re¬ spective writings and discoveries.” See 8 Pet. 591, supra; Banks v. Manchester, 128 U. S. 244, 252, 32 L. ed. 425, 428, 9 Sup.

Ct. Rep. 36; Thompson v. Hubbard, 131 U.

S. 123, 151, 33 L. ed. 76, 86, 9 Sup. Ct. Rep.

Under this grant of authority a series of statutes have been passed, having for their object the protection of the property which the author has in the right to publish his production, the purpose of the statute being to protect this right in such manner that the author may have the benefit of this property for a limited term of years. These statutes should be given a fair and reasonable con¬ struction with a view to effecting such pur¬ pose.

“The first question presented in oral [292 J argument and upon the briefs involves the construction of § 4962 as amended (U. S.

Comp. Stat. 1901, p. 3411), which is as fol¬ lows :

“That no person shall maintain an action for the infringement of his copyright unless he shall give notice thereof by inserting in the several copies of every edition published, on the title page or the page immediately following, if it be a book; or if a map, chart, musical composition, print, cut, engraving, photograph, painting, drawing, chromo, stat¬ ue, statuary, or model or design intended to be perfected and completed as a work of the fine arts, by inscribing upon some visible portion thereof, or of the substance on which the same shall be mounted, the following words, viz.: ‘Entered according to act of

207 U. S.

292-294

American Tobacco Co. t. Werckmeisteb.

Congress, in the year - , by A. B. in the

office of the Librarian of Congress, at Wash¬ ington;’ or, at his option, the word ‘copy¬ right,’ together with the year the copyright was entered, and the name of the party by whom it was taken out, thus: ‘Copyright 18—, by A. B.’ ”

It is the contention of the plaintiff in error that the original painting was not in¬ scribed as required by the act, and there¬ fore no action can be maintained, and it is insisted that the inscription upon the pho¬ togravures offered for sale is not sufficient.

It must be admitted that the language of the statute is not so clear as it might be, nor have the decisions of the courts been uniform upon the subject. In Werckmeis- ter v. Pierce & B. Mfg. Co. 63 Fed. 445, Judge Putnam held that the failure to in¬ scribe the copyright notice upon the original painting did not affect the copyright. That judgment was reversed by the circuit court of appeals for the first circuit by a divided court. 18 C. C. A. 431, 33 U. S. App. 399, 72 Fed. 54.

In the case of Werckmeister v. American Lithographic Co. 142 Fed. 827, Judge Holt reached the same conclusion as Judge Put¬ nam, and in the case at bar the circuit court of appeals for the second circuit approved of the reasoning of Judges Putnam and Holt [2 9 3]and disagreed with the majority of *the judges of the circuit court of appeals for the first circuit.

Looking to the statute, it is apparent that if read literally the words “inscribed on some visible portion thereof,” etc., apply to the antecedent terms “maps, charts, musical composition, print, cut, engraving, photo¬ graph, painting,” etc., and the words of the first part of the sentence, requiring notice to be inserted in the several copies of every edition published, apply literally to the title page or the page immediately following, if it be a book.

But in construing a statute we are not al¬ ways confined to a literal reading, and may consider its object and purpose, the things with which it is dealing, and the condition of affairs which led to its enactment, so as to effectuate rather than destroy the spirit and force of the law which the legislature intended to enact.

It is true, and the plaintiff in error cites authorities to the proposition, that where the words of an act are clear and unambigu¬ ous they will control. But, while seeking to gain the legislative intent primarily from the language used, we must remember the objects and purposes sought to be attained.

We think it was the object of the statute to require this inscription, not upon the original painting, map, photograph, draw¬ ing, etc., but upon those published copies 52 Li. ed.

concerning which it is designed to convey information to the public which shall limit the use and circumscribe the rights of the purchaser.

As we have seen, the purpose of the copy¬ right law is not so much the protection of the possession and control of the visible thing, as to secure a monopoly having a lim¬ ited time, of the right to publish the pro¬ duction which is the result of the inventor’s thought.

We have been cited to no case, nor can we find any direct authority in this court upon the question. But the opinion of Mr. Jus¬ tice Miller in Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 28 L. ed. 349, 4 Sup. Ct. Rep. 279, is pertinent. The court there considered whether Congress had the constitutional right to protect photographs and negatives by copyright, an.d the second assignment of ‘error relates to the suffi-[2 94] ciency of the words “Copyrighted 1892 by N. Sarony,” when the copyright was the prop¬ erty of Napoleon Sarony. In treating this question the learned judge used this very suggestive language (111 U. S. p. 55):

“With regard to this latter question, it is enough to say that the object of the stat¬ ute is to give notice of the copyright to the public, by placing upon each copy , in some visible shape, the name of the author, the existence of the claim of exclusive right, and tlie date at which this right was ob¬ tained.”

If the contention of the plaintiff in error be sustained the statute is satisfied only when the original map, chart, etc., or paint¬ ing is inscribed with the notice, and this is requisite whether the original painting is ever published or not. We think this con¬ struction ignores the purpose and object of the act, which Mr. Justice Miller has said, in the language just quoted, is to give no¬ tice of the copyright to the public, — that is, to the persons who buy or deal with the pub¬ lished thing.

It is insisted that there is reason for the distinction in the statute between books, and maps, charts, paintings, etc., in that a book can only be published in print and becomes known by reading, while paintings, draw¬ ings, etc., are published by inspection and observation.

It may be true that paintings are pub¬ lished in this way, but they are often sold to private individuals and go into private collections, whilst the copies, photographs, or photogravures, may have a wide and ex¬ tended sale.

It would seem clear that the real object of the statute is not to give notice to the artist or proprietor of the painting or the person to whose collection it may go, who need no information, but to notify the public

215

294-297

Supreme Court of the United States.

Oct. Teem,

who purchase the circulated copies of the existing copyright, in order that their own¬ ership may be restricted.

There does not seem to be any purpose in requiring that an original map, chart, or painting shall be thus inscribed, while there is every reason for requiring the copies of

editions published *to bear upon their face the notice of the limited property which a purchaser may acquire therein.

This construction of the statute which re¬ quires the inscription upon the published copies is much strengthened by the review of the history of copyright legislation which is contained in Judge Putnam’s opinion in Werckmeister v. Pierce & B. Mfg. Co. 63 Fed. 445; that legislation, before the statute of 1874, in which paintings were for the first time introduced, shows the uniform require¬ ment of notice upon copies. The apparent incongruities in the statute, in the light of its history, have grown up from enlarging the scope of the law from time to time by the introduction of new subjects of copyright and engrafting them on the previous stat¬ utes. The same argument which requires original paintings to be inscribed would ap¬ ply to all other articles in the same class in the present law, as maps, charts, etc., which were formerly classed with books, so far as requiring notice upon copies is concerned.

Such original maps and charts, etc., may and usually do remain in the possession of the original makers, and there is no neces¬ sity of any notice upon them, but the copy¬ right is invalid, as the plaintiff in error in¬ sists, unless the original is itself inscribed with the notice of copyright.

For the learned counsel for plaintiff in er¬ ror says: “If the painting or like article is ripe for copyright, it is ripe for the in¬ scription of the notice. The statute requires the inserting of notice in published things only in respect to published editions of books. The term ‘published’ is not used in connection with paintings, statutes, and the like.” And it is urged there can be no such thing as an “edition” of a painting, and copies of published editions are the only copies mentioned in the statute. But this phrase survives from former statutes, which dealt only with books, maps, charts, etc. When paintings and other things not capa¬ ble of publication in “editions” were intro¬ duced into the statute, the language was not changed so as to be technically accurate in reference to the new subjects of copyright.

*But the sense and purpose of the law was not changed by this lack of verbal accuracy, and we think, while the construction con¬ tended for may adhere with literal accuracy and grammatical exactness to the language used, it does violence to the intent of Con¬ gress in passing the law, and that the re- 216

quirement of “inscription upon some visible portion thereof” should be read in connec¬ tion with the first part of the sentence, which requires notice to be inserted in the several copies of every edition published, on the title page if it be a book, upon some visi¬ ble portion of the copy if it be a map, chart, painting, etc.

As we have said in the beginning, the stat¬ ute is not clear. But read in the light of the purpose intended to be effected by the legislation, we think its ambiguities are best solved by the constructions here given, and that the circuit court of appeals made no error in this respect.

Again, it is contended that under the facts stated Werckmeister was but the licensee of Sadler, and, as such, not within the terms of the statute (§ 4952, as amended 1891 [26 Stat. at L. 1106, chap. 565], U. S. Comp.

Stat. 1901, p. 3406), which is as follows:

“The author, inventor, designer, or pro¬ prietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph or negative thereof, or of a painting, drawing, chromo, statue, statu¬ ary, and of models or designs intended to be perfected as works of the fine arts, and the executors, administrators, or assigns of any such person, shall, upon complying with the provisions of this chapter, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same, and, in the case of dramatic composition, of publicly perform¬ ing or representing it or causing it to be performed or represented by others, and au¬ thors or their assigns shall have the ex¬ clusive right to dramatize and translate any of their works for which copyright shall have been obtained under the laws of the United States.”

But we think the transfer in this case ac¬ complished what it *was evidently intended[2 9 7 ] to do, — a complete transfer of the property right of copyright existing in the picture.

There is no evidence of any intention on the part of Sadler to retain any interest in this copyright after the sale to Werckmeister; and when the painting was offered for sale at the Royal Academy it was with a reserva¬ tion of the copyright.

It would be giving an entirely too narrow construction to this instrument to construe it to be a mere license or personal privilege, leaving all other rights in the assignor.

That it was the purpose of the parties to make a complete transfer is shown by the instrument executed, when read in the light of the attendant circumstances.

In this connection it is argued that under the statute above quoted ( § 4952, as amend¬ ed March 3, 1891) an author cannot, before publication, assign the right or privilege of

207 U. S.

297-299

American Tobacco Co. v. Werckmeisteb.

taking a copyright independent of the “trans¬ fer of the copyrightable thing itself,” and it is contended that the terms “author,” “in¬ ventor,” “designer,” refer to the originator of the book, map, chart, painting, etc., and that the term “proprietor” refers to the per¬ son who has a copyrightable thing made for him under such circumstances as to become the proprietor; as, for instance, one who causes a digest to be compiled or a picture to be painted.

But we think this statute must be con¬ strued in view of the character of the prop¬ erty intended to be protected. That it was intended to give the right of copyright to others than the author, inventor, or design¬ er is conclusively shown in the use of the terms “proprietor” and “assigns” in the statute.

It seems clear that the word “assigns” in this section is not used as descriptive of the character of the estate which the “author, inventor, designer, or proprietor” may ac¬ quire under the statute, for the “assigns” of any such person, as well as the persons themselves, may, “upon complying with the provisions of this chapter,” have the sole liberty of printing, publishing, and vending the same. This would seem to demonstrate the intention of Congress to vest in “as¬ signs,” before copyright, the same privilege [2 9 8]of subsequently acquiring complete *stat- utory copyright as the original author, in¬ ventor, designer, or proprietor has. Nor do we think this result is qualified because the statute gives to assigns, together with the right of publishing, vending, etc., the right of “completing, executing, and finishing” the subject-matter of copyright.

And a strong consideration in construing this statute has reference to the character of the property sought to be protected. It is not the physical thing created, but the right of printing, publishing, copying, etc., which is within the statutory protection. While not, in all respects, analogous, this propo¬ sition finds illustration in Stephens v. Cady, 14 How. 528, 14 L. ed. 528, in which it was held, where the copyright for a map had been taken out under the act of Congress, a sale upon execution of the copperplate engraving from which it was made did not pass the right to print and sell copies of the map. Mr. Justice Nelson, delivering the opinion of the court, said:

“But, from the consideration we have given to the case, we are satisfied that the property acquired by the sale in the en¬ graved plate, and the copyright of the map secured to the author under the act of Con¬ gress, are altogether different and independ¬ ent of each other, and have no necessary connection. The copyright is an exclusive right to the multiplication of the copies, for 52 L. ed.

the benefit of the author or his assigns, dis¬ connected from the plate, or any other phy¬ sical existence. It is an incorporeal right to print and publish the map; or, as said by Lord Mansfield in Millar v. Taylor, 4 Burr.

2390, ‘a property in notion, and has no corporeal tangible substance.’ ”

And the same doctrine was thus stated by Mr. Justice Curtis in Stevens v. Gladding,

17 How. 447, 15 L. ed. 155:

“And upon this question of the annexation of the copyright to the plate it is to be ob¬ served, first, that there is no necessary con¬ nection between them. They are distinct subjects of property, each capable of exist¬ ing, and being owned and transferred, inde¬ pendent of the other.”

While it is true that the property in copy¬ right in this country is the creation of stat¬ ute, the nature and character of the *prop-

erty grows out of the recognition of the sep¬ arate ownership of the right of copying from that which inheres in the mere physical con¬ trol of the thing itself, and the statute must be read in the light of the intention of Con¬ gress to protect this intangible right as a reward of the inventive genius that has pro¬ duced the work. We think every consider¬ ation of the nature of the property and the tilings to be accomplished supports the con¬ clusion that the statute means to give to the assigns of the original owner of the right to copyright an article the right to take out the copyright secured by the stat¬ ute, independently of the ownership of the article itself.

It is further contended that the exhibition in the Royal Gallery was such a publication of the painting as prevents the defendant in error from having the benefit of the copy¬ right act. This question has been dealt with in a number of cases, and the result of the authorities establishes, we think, that it is only in cases where what is known as a general publication is shown, as dis¬ tinguished from a limited publication under conditions which exclude the presumption that it was intended to be dedicated to the public, that the owner of the right of copy¬ right is deprived of the benefit of the stat¬ utory provision.

Considering this feature of the case, it is well to remember that the property of the author or painter in his intellectual creation is absolute until he voluntarily parts with the same. One or many persons may be per¬ mitted to an examination under circum¬ stances which show no intention to part with the property right, and it will remain unimpaired.

The subject was considered and the cases reviewed in the analogous case of Werck- meister v. American Lithographic Co. 68 L.R.A. 591, 134 Fed. 321, in a full and corn-

217

299-302

Supreme Court of the United States.

Oct. Term,

prehensive opinion by the late Circuit Judge Townsend, which leaves little to be added to the discussion.

The rule is thus stated in Slater on the Law of Copyright and Trade Marks p. 92 ) :

“It is a fundamental rule that to consti¬ tute publication there must be such a dis-

semination of the work of art itself ‘among the public as to justify the belief that it took place with the intention of rendering such work common property.”

And that author instances as one of the occasions that does not amount to a general publication the exhibition of a work of art at a public exhibition w'here there are by¬ law's against copies, or where it is tacitly understood that no copying shall take place, and the public are admitted to view the painting on the implied understanding that no improper advantage w'ill be taken of the privilege.

We think this doctrine is sound and the result of the best-considered cases. In this case it appears that paintings are expressly entered at the gallery with copyrights re¬ served. There is no permission to copy; on the other hand, officers are present who rig¬ idly enforce the requirements of the society that no copying shall take place.

Starting with the presum ption that it is the author’s right to withhold his property, or only to yield to a qualified and special in¬ spection which shall not permit the public to acquire rights in it, we think the cir¬ cumstances of this exhibition conclusively show that it was the purpose of the owner, entirely consistent with the acts done, not to permit such an inspection of his picture as would throw its use open to the public. We do not mean to say that the public ex¬ hibition of a painting or statue, where all might see and freely copy it, might not amount to publication within the statute, regardless of the artist’s purpose or notice of reservation of rights which he takes no measure to protect. But such is not the present case, where the greatest care was taken to prevent copying.

It is next objected that the form of ac¬ tion in this case was the ordinary ac¬ tion for replevin under the New York Code, and as the plaintiff did not have the right of property or possession be¬ fore the beginning of this action, no such action would lie. Whether this action was the one in the nature of replevin for the seizures of the plates and copies indicated in the case of Bolles v. Outing Co. 175 U. S. 2G6, 44 L. ed. 157, 20 Sup. Ct. Rep. 94, we do not find it necessary to determine.

After verdict, and upon motion for *a new trial, plaintiff in error, defendant below, moved to set aside the verdict “on the ground that replevin, under the statutes of 218

the state of New York, is not an appropri¬ ate remedy or a lawful and legal remedy for taking possession of the alleged incriminat¬ ing sheets or pictures, and that the proceed¬ ings taken in that behalf by the plaintiff were illegal and invalid, and that the plain¬ tiff cannot avail of any benefit of that pro¬ ceeding, and the introduction in evidence of the replevin proceedings was an error.” The motion was denied and exception duly taken.

The learned counsel for the plaintiff in error admits that this question was not for¬ mally raised until the defendant's motion for a new trial, but maintains that the same question was raised by the objection to ad¬ mission in evidence of the replevin proceed¬ ings by the marshal for western and southern districts of New York, respectively.

Examining this record, it is perfectly ap¬ parent that no objection was made to the form of the action until it was embodied after verdict, in the motion for a new trial.

Upon the admission of the writ of replevin, addressed to the marshal of the western dis¬ trict of New York, and affidavit, the objec¬ tion stated was “on the ground that the process of replevin that was executed by the marshal in Buffalo was an invasion of de¬ fendant’s constitutional right, was an un¬ warrantable search, an illegal act, and noth¬ ing done under it, or information obtained by virtue of it, can be used in evidence against defendant under the 4th and 5th Amendments of the United States Constitu¬ tion.”

The same objection was made when the writs of replevin, affidavit, and return were offered in evidence concerning the southern district of New York, and it was said: “De¬ fendant’s counsel objects on the same grounds as stated to the introduction of tlie stipulation; namely, that the papers constitute an illegal proceeding, an invasion of the defendant’s constitutional right, as provided by the 4th and 5th Amendments, and plaintiff cannot avail of them as evi¬ dence in this case, on account of their ille¬ gality.”

*The argument which followed, could it be

assumed to broaden the objection, was far from complaining of the form of action as such, but rested upon the Constitution and the character of the seizure of the goods, of which it was maintained the plaintiff was not entitled to possession until after a judg¬ ment of forfeiture.

The record shows that the objection to the form of the remedy was first taken in any adequate way upon the motion for a new trial, when it was too late.

In conclusion, it was suggested rather than argued that the constitutional rights of the plaintiff in error were violated by the seizure of the goods, and reference was made

207 U. S.

CHT7NN T. ClTT & SUBUBBAN RAILWAY.

302

to the 4th and 5th Amendments. We think we need only refer in this connection to Ad¬ ams v. New York, 192 U. S. 585-597, 48 L. ed. 575-580, 24 Sup. Ct. Rep. 372, and Hale v. Henkel, 201 U. S. 43, 50 L. ed. 652, 26 Sup. Ct. Rep. 370.

Finding no error in the judgment of the Circuit Court of Appeals, the same is af¬ firmed.