earning $3 per day. The evidence shows that he will not hereafter be able to do work of the kind in which he was theretofore engaged, but will be required to seek employment requiring less physical exertion. A libel was filed in the sum of $5,000, and it is sought to hold the vessel responsible for this injury. It charges that "the master had knowledge that said gaft or boom was constructed in an unsafe manner, and the man in charge of lowering the buckets or tubs was an inexperienced and incompetent person. The libelant exercised due care and precaution, and in no manner contributed to the said injuries, but the same were solely caused by the negligence and carelessness of the respondents in improperly constructing the boom or gaft, and in allowing the same to be managed by an incompetent and inexperienced person." The answer denies negligence or carelessness on the part of the respondents, and denies that the boom or gaft was improperly constructed, or that the same was managed by an incompetent and inexperienced person.

on

Upon the pleadings it is contended the libelant is confined to the allegations of fault contained in the charge of negligence on the part of the respondents, due to the danger of having improperly constructed the boom or gaft, and in allowing the same to be managed by an incompetent and inexperienced person. In other words, he is required to prove that his injury resulted from the negligence of the shipowners and the inexperience and incompetency of the winchman; and, further, that if the question of the negligence of the winchman is an issue raised by the pleadings, and the injury resulted from that cause alone, the libelant cannot recover, as Flinn, the man managing the winch at the time, was a fellow servant, for whose negligence the respondents are not responsible. William Flinn was a seaman board the Elton, and was placed at the winch by the first mate, in accordance with the requirements of the charter party under which the cargo was shipped and was being discharged requiring "the vessel to deliver the cargo to the consignee at Philadelphia, * * * paying for discharge thirty-five cents per ton, ** * and to furnish cranes and winches with necessary steam power and hands." One of the stevedore's men was placed at the opening of the hatch in a position to see in the hold, and to signal the winchman when to lower and raise the tubs. There is a conflict of evidence as to the cause of the accident. It was customary, in raising a filled tub, for the man to signal the winchman to go ahead. After raising the same some distance to stop the swing of the tub, he was signaled to lower a few feet, where the tub was steadied. He was then signaled to go ahead, when the tub was raised clear of the vessel. The signalman claims that the signals were properly given, but were disregarded by the winchman, who made a mistake, and carelessly pulled his lever to lower the bucket when he signaled him to go ahead. The winchman, however, denied this, and claims that he received the wrong signal. I find, however, from all the evidence and circumstances, that this injury resulted from the negligence of the winchman. It is clear to my mind that, if he had been attending carefully to his duties, he would not have allowed this bucket to descend the entire distance as if it "had dropped." He knew the men were working below, and in

lowering a few feet to steady the bucket he must have known required caution, and that a sudden lowering for the entire distance would in all probability injure some one below. It is evident that he negligently pulled his lever to lower the bucket, when he should have raised it; so that I find that the injury was the result of the negligence of the winchman. The winchman was the representative of the respondents, placed there by the first mate, in accordance with the provisions in the charter party, and the libel charges them with negligence and carelessness in placing an incompetent and inexperienced person at the winch. We are of opinion that a negligent person at a position requiring care and caution is incompetent. Incompetency includes want of qualification generally, and we hold that the question of the winchman's negligence is an issue fairly raised by the pleadings, and for which the respondents are responsible, if he is not a fellow servant. The question as to whether he is a fellow servant has been passed upon so frequently and so recently that I shall only refer to the cases which I think settle that question against the claim of the respondents. McGough v. Ropner (D. C.) 87 Fed. 534, was a case decided in this district, in which the facts are almost the same as the facts in this case. Numerous cases are there cited to sustain the proposition that a sailor placed at the winch by the officers of a vessel is not a fellow servant of the employés of a stevedore. To the same effect are The Slingsby, 120 Fed. 748, 57 C. C. A. 52, and The Gladestry (C. C. A.) 128 Fed. 591, both of which cases are decisions of the Circuit Court of Appeals of the Second District.

The libel must, therefore, be sustained, and a decree may be entered accordingly.

GEORGE T. BISEL CO. v. WELSH et al.

(Circuit Court, E. D. Pennsylvania. August 1, 1904.)

No. 38.

1. COPYRIGHT INFRINGEMENT-PRELIMINARY INJUNCTION.

Where defendant published a digest of the laws of Pennsylvania for the years 1895-1903, inclusive, in one volume, edited and compiled by the same person who compiled complainant's copyrighted digest of the laws of Pennsylvania, with supplements for the years 1895-1897, and it appeared that the compiler made 11 errors, consisting of incorrect citations in complainant's work, which appeared verbatim in defendant's compilation, such errors justified an inference of infringement of complainant's copyright entitling complainant to a preliminary injunction; the only explanation offered therefor being that the similarity of mistake was accidental.

In Equity. Granting a preliminary injunction.

Frank P. Prichard and John G. Johnson, for complainant.

F. F. Brightly and A. S. L. Shields, for respondents.

HOLLAND, District Judge. The complainant is the owner of the copyright for the Twelfth Edition of Brightly's Purdon's Digest of the

1. See Copyrights, vol. 11, Cent. Dig. § 76.

Laws of Pennsylvania, issued 1894, and two supplements, of the same title, for the years 1895 and 1897 (hereinafter called "Supplements"). These three editions were digested and compiled by Frank F. Brightly, one of the defendants, under contract with Kay Bros., from whom complainant purchased the copyright in the spring of 1902. Subsequently, in the early part of 1903, the same Frank F. Brightly digested and compiled the Laws of Pennsylvania for the years 1895, 1897, 1899, 1901, and 1903 in one volume under the name, style, and title of "Brightly's Digest of Laws of Pennsylvania 1893 to 1903" (hereinafter called "Brightly"), adopting the same general plan as to type, arrangement of subject, cross-references, synopsis, and general appearance of that of the Supplements of 1895 and 1897, but with much more elaboration and detail as to titles, subtitles, cross-references, and notes.

Mr. Brightly, in compiling the Supplements of 1895 and 1897, as was usual, made a number of errors, 11 of which appear verbatim in his subsequent volume of Brightly. They consisted in citing a wrong page upon which an act or section of an act of assembly could be found. The nature and kind of all these errors appearing in both volumes is fully indicated by the following:

The Supplement of 1897, page 2710, in the list of acts under heading "Acts of Assembly," subheading "6 Repealed Acts," cites the act of 22d March, 1817, section 4, as "6 Sm. L., 48." Brightly's volume, page 13, in the list of acts under the head "Acts of Assembly," subheading, "6 Acts Repealed," cites the act of March 22, 1817, section 4, as “6 Sm. L., 48." This act occurs at page 438 of volume 6 of Smith's Laws.

In the list of amended, repealed, and partly repealed acts in the Supplement of 1897 three omissions occur, which were evidently an oversight of Mr. Brightly in digesting that Supplement. The same omissions occur in the same list in his volume of Brightly.

In the list of amended acts of assembly in the Supplement of 1897, giving first the act which is amended, and then on the same line with it the act which amends it, there is a list of 54 amended Acts, an arbitrary method of citing the page of the Pamphlet Laws where the amending act or section is adopted in the Supplement of 1897. In 15 instances, Mr. Brightly cited the page of the Pamphlet Laws on which the entire act commenced, and not the page on which was found the amended section, and in 39 cases the author cited the page of the Phamphlet Law of 1897 on which the amending clause occurred, and not the page of the Pamphlet Law on which the act commenced. No reason appears for the distinction adopted by the compiler, and none is offered in the answer or affidavits of the defendants. Brightly's edition has duplicated this paging exactly, adding to it the amendments subsequent to 1897. It is difficult to understand how this could be done five years afterward, except by copying.

The complainant contends that the defendants have infringed upon their copyright, in that they have made an unfair use of the Supplements of 1895 and 1897, and have copied therefrom, and that this is established by the same errors, same omissions, and similarity of statement appearing in the Supplements and Brightly.

Defendants deny the use of the Supplement to any extent whatever in the preparation of Brightly, and Mr. Brightly himself gives a de

tailed account in his affidavit of the work and method pursued in the digesting and compiling the volume complained of, in which it is contended that Brightly's Digest, being a digest similar to the Supplements, for which the material was necessarily secured from the same original source, and the work having been done in both instances by the same person, the result would necessarily be similar-in fact almost the same; and then follows an explanation as to the errors, omissions, and sameness of arrangement, which amounts to saying it occurred accidentally.

At the hearing, some of the original work was produced, showing that in the preparation of Brightly the acts of assembly of 1895 and 1897 were used and cut up in the process of digesting and pasted upon cardboard. This was produced in court, and showed that there was undoubtedly original work done on the acts of assembly of 1895 and 1897 in compiling Brightly. In fact, the Brightly Digest was of such a different scope, taking in five sessions of the Pennsylvania State Legislature, which were to be digested into one volume in alphabetical order as to subject, and the Supplements being only for one year, that it was necessary to do original work on the acts of each session, although some of the material of the Supplements could have been used in Brightly; but as to the amount there is much uncertainty, as defendants deny having made any use at all.

Notwithstanding, however, the explanations offered in this preliminary motion, I am not satisfied that Mr. Brightly did not make an unfair use of the complainant's Supplements of 1895 and 1897. In a case like this, where the same kind of a digest is to be compiled from the same material, by the same man, similarly arranged, the existence of the same errors in the two digests offer one of the surest tests of copying. The improbability that the same mistakes would have been made, even by the same author, in both volumes, compiled five and six years apart, if in both instances he had done original work, suggests such a cogent presumption of copying from the former into the latter digest that it can only be overcome by clear evidence to the contrary. List v. Keller (C. C.) 30 Fed. 772. It may be that at the final hearing he can explain and satisfy the court that there was no copying of the Supplements in his Brightly. But as these errors, omissions, and similarity of language occurring in the Supplements are exactly reproduced in Brightly, and the explanation as to how it occurred being unsatisfactory, under the ruling of Callaghan v. Meyers, 128 U. S. 617, 9 Sup. Ct. 177, 32 L. Ed. 547, List v. Keller (C. C.) 30 Fed. 772, Trow Directory Company v. U. S. Directory Co. (C. C.) 122 Fed. 191, the complainant is entitled to a preliminary injunction.

In re SWEETSER.

(District Court, D. Massachusetts. July 18, 1904.)

No. 7,811.

1. BANKRUPTCY-ASSIGNMENT OF CLAIMS-ACT OF 1867.

General order No. 34 of the general orders in bankruptcy (89 Fed. xiii, 32 C. C. A. xxxiii) adopted under the act of 1867 (Act March 2, 1867, c. 176, 14 Stat. 517) which provided that the register should subrogate the assignee of a claim "upon the filing of satisfactory proof of the assignment," does not require any particular form of assignment, and the indorsement and delivery of notes which had been proved and allowed against an estate by the creditor to the assignee of the estate, with the intention that it should transfer the debt in payment of a personal obligation to the assignee, will be given effect as an assignment, as against a written assignment by the creditor several years afterward, made through a mistake, and in the belief that the claim had never been transferred; it being shown that the first transfer was given and received in good faith.

In Bankruptcy. On review of order of register.

Maynard E. S. Clemons, for Linscott.

Fred Joy, for Dowse.

LOWELL, District Judge. In 1878 the claim of Dolliver on certain notes was allowed against the bankrupt estate. About 1883 Dolliver handed over to Dowse, one of the assignees of the estate, the notes, indorsed in blank, in payment of a debt owed by Dolliver to Dowse. There was no other writing. The intention on both sides was to transfer the claim in bankruptcy. In 1901 Dolliver made a formal written transfer of the claim to Martha Whittredge; saying at the time that he was sure it had not been assigned before, but that, if he was mistaken, Mrs. Whittredge should have her money back. The facts are stated fully in the register's clear report. Linscott, the assignee of Mrs. Whittredge, has filed a petition to be subrogated to Dolliver's proof. Joy, assignee of Dowse, objects thereto.

The first question concerns the validity of an oral assignment of a claim in bankruptcy proved and allowed. Counsel for Linscott argued that such an assignment was invalidated by order 34 of the general orders in bankruptcy (see Bump on Bankruptcy [10th Ed.] 892), in this respect substantially like general order 21 under the act of 1898 (89 C. C. A. ix, 32 C. C. A. xxii). But a provision that the register shall subrogate the assignee "upon the filing of satisfactory proof of the assignment" does not indicate that any particular form of proof is required-rather, the reverse. Again, a provision that "the execution of any letter of attorney to represent a creditor of an assignment of claim after proof may be proved or acknowledged before" any one of several federal officers does not make totally invalid an assignment acknowledged in some other way. Can it be supposed that a statute which provided that "a bill of sale of personal property may be acknowledged before a justice of the peace" would of itself totally invalidate all other methods of transferring personal property? See In re Miner (D. C.) 114 Fed. 998; Id., 117 Fed. 953. It is to be