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(01Jrcuit Oourt. L
E. D. Missouri, E.'i{' Beptember96, 1890:)
The complaint alleged that defendants hadappropl'latecl and were using on their advertisements, circulars, letter beads, etc.,·relating to their pub1ication; the :device of an open book which complainants ;had, theretofore, been in the babit of using for like purposes;. that defendants used the words "Webster's Dictionary" . placll,Un.;t;lie s.,me,relllotl0n !botbeil!p'qbliQationtbat'complainimts.place it; that the theti. was,giren as of the.year 1800, when,. . in fact,the bb'okwas a reprintorllhotolithographlc copy of the edition .that, intent OIl- defendants', paJ't; to , get the ofthe of the ec1ition of Wll]:lster'lI Dictionary pqblished , by oomt>lilin81'tts; -and 'as tbepubrici 'migl1t possibly·l)tj deceived' to complai'rlatits' I :daJl1"ge, in of the'factB averred, .a. demurrer to tbEl complaint,would be' I.',.} i.,.: :""'''I[ . : " .· ' . . ·" , . ' ' . I .' ... 9. l'ROT1!,JTEDT WBBSTER'S :DICTIONART., ' . . : , The. copyrlgllt.' 'of Webster's! Dldtilonarr havlDg expired, no one has anyspec1al J!r0pelitYjn '., " 8. .. .. . . ". . · ' .' . . .A:deniur'i'ertO' awliol'e' \\i1l'Diu'stfbeoverruledlf the bin: taken altogether entitles sOIlle kind of ' " ...:. '.; }, d' ,r; !' i (! :',' ; I , :','; 11
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diffieulty in these cases controversy tfuat we bad in tbe(J8se of, Stephenav,. ,460; (ju.st decidfed.) ',Tbedifficultyis that the< parties tQ,the ,whole randofcou,rse if:therejsany one thing iqthe. bill that ill: gQpd,-ctbat cis',t<> say, if th& bill taken altogether enti,.· tlEl!! to some. of relief,-the, demurrer should be: in in a law case wants to demur to, a k>f a. bill, at, ,declaration, he should not frame: ,his de-; BP: as to call the, whole bill in. :quea.' xqurrer as "",'. '. : tion·. ' ' ' ' :. !,laIn a right of action growing otltof, t4e 41legeQ,faQt.tbnt Jtbaidet:endants have appropriated the device of an which! deviCe! the complainants have ihithertobeen intbe habit of circulars, letter: heads l etc.:" Thill. as,W:-eundetstand it, is also used bytbedefend.., ants :olil: ,th!:lil'; , hell etc. ,Tha:t device so appropriated: trllde-markj but I ban Bee no good reason;! w.hyr mark or de-: vj.pe on their:' letter heads, adver:tiaements, and oiroulars, whioh .the com-' . It.looks'a&: though there might. be enough-in this' fact stated in the bill, tQ .oourt,{rom sustaining a general :de-
ill. regarll. to
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the to deceive people, by leaduse ofthedevice in question :in fact ing:them'to suppose that the Webster's: Dictionary sold by the defendantsis'pril1ted and put on the,market by conrplainants, and whether the adoption 'of the device inquesfion by the defendants was intehded"to h'a'Ve that effect. ' ," I waut to say, however, with reference to the main issue in the that it occurs to me that this'proceeding isnn nttetnptto the doctrifiethat a party who 'has had th'atlopyright 'of a book until, nhss eXpirei:l,may continue that indefinitely, under thepreten':le that by a trade-mark, ol"something <>fthat 'sort. '·1 do not believe in any such doctrine, nor do my associates. When a man takes out a copyright, for any of his writings or works, he impliedly agrees that, at the expiration of that copyright, such writings or works shall go to the public and become public property. I may be the first to announce that doctrine, but 1annouo.ce, it ,without any hesitation. If a man is entitled to an extension of his copyright, he may obtain it by the of obtaining such mode pointed out by)aw.',rhe law extension. The copyright law gives an' author Of proprietor a monopoly of the sale of his writings for a definite period, but the grant of a ownopoly-implies that, after the monopoly has expired, the public shall be entitled c::ver afterwards to the unrestricted use of the book. There is some hesitation among my brethren and myself, as above indicated, whether, taking the bill as a whole, and considering all of its averments, a general demurrer ought to be sustained. The defendants use the words "Webster's Dictionary" or "Webster's Unabridged Dictionary," placed in the same relation to their publication that the complainants place it. The date ot defendants' publication on the title-page is given as of the year 1890, when, in point of fact, the book that they are publishing isa or a photolithographic copy of the edition of Webste-r's Dictionary of 1847. The defendants· also use the deville of an open book on and circulars, relating to their publication, as before alluded to. Now, taking all of these allegations together; there may be some. of a fraud ul('nt intent on defendants' part to get the benefit of the reputation ofthe edition of Webster's Dictionary which the complainants are publishing, and it may possibly be that, in consequence of the facts averred, the public are deceived, and that. the complainants are damaged to some extent. We think, therefore, that this is one of those cases where, as the facts are stated in the complaint, the interests of jUE'ltice would be best subserved by requiring' the defendants so that there may be a full and fair investigation of the law to ' and facts apona final hearing. The ,demurrer in this case, as we uoderatand it, is not to special portions of the' bill or particular allegations, but goes to the whole bill, and asserts that it contains no averments warranting equitabl(l relief of llny sort. We areunnb1e, at this time, to fullj assent to that at the sarne time, We do not wish to be understood as declaring defhiitely thait· the complainant is entitled to equitable relief. I will say this, bow.;
nitirrerl' 'r(riiay be
,FEl?ERAL REPORTER,
vol. 43.
ever, ,tllll-t' contention' that have any SpecilUproperty in "W.ebster's])ictionary" is all nonsense, sin'ee the copyright has e;xpired. What do 'they mean by the e;xpression "their book," when they speak of Webster's Dictionary? It may qe their, book if they have bought it, as a copy of WElbllter's, Dictionary ;is, ply bO,ok if I have bought it. But in no other sense than that last indicated can the complainants say of Webster's Dictionary that it is their book. It does not appear that the have asked for a preliminary injunction in case, and we, hay-e less reluctance, on that account, in overruling the demurrer. The caSl;l> is not one in wjlich we would grant a preliminary injunc4on, if one wll.$ on the p,resent showing.
MII.LS
f1. SCOTT
et al.
(oiJrcu(t Ocrurt, s. D. Geoiata, S. D. June"28, 1890.) '" ':', "', "
1.
, , ,A ,judgment against a defendaut who: was never served with process, and whoBe appearance in the action was ellteredby an attorney without bis knoWledge or consent, ,may be enjoined, though defendant does not show that he has any de, , fense to the claim Bued on. " Where a bill to enjoin alleges that sald defendant was not legally served Witoprocess, and that he naYel' appeared in the action,either in personar by 'attorney, anamendment'thel'atl> alleging that said defendant never acknowledged service of process in saidactiqli'lljlither in person orby attorney, and that the acknowledgolliIit of setvicewhich'hlid Deen'made by an attorney was made without hisallthQritY,does not change the character of the bill. ' " , , " ,:: '",. , ' "
INroNOTION-JUDGMENT-ApPEAltA,NCB BY ArTORNBT.
2.SAME--EquITY :PLEADING-A¥ENDMBNT.
3. !3AME,,",",PRESP!!PTION.
such amendment is and allowed at th!l hearing in open in ,the presence of both parties; it Will be presumed t!lat It was made upon suffiCIent "" eVidence, &nd not for the purpo.tt., of ,vexation or delliy." ' ,' , Where a trustee, who has in his p0ssessiQn money belonging to the trust fund, buys land,and'takes title in his: o'Wlf name, but declares at the tiIIie that he buys the ,land witrh'the truE\tfunds;, alld records a written declaration of trust before the levy of any execution on suCh land. such declaration of trust is valid aa agaiilst the trustee's creditors. ',' ' V,ld.ID1tft: AS AGAINS1.'
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InEquity., ' Chisholm &- ltrwin,forcomplainl'tnts. James Atkins. for defendants. :., ,J'
J. This is a suit ccimmEmced August 18, 1877, seeking to a judgment 6, 1877, in an action at law that had beeninstituted in this court in the name of JohnO. Ferroll, nary of Chatham 'county, Ga,., for tIle ,use of Levi :J3. Scott, against 'fhomas R. Mills, Jr., as principal, Thomas R. Mills,Sr. , as sl'lcurity" on thel:lpnd p*lcipal, as tpe,fld))1inistrator of the estate of onEt ·. PA.RDEE,