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    Eleazer F. Backus, Plaintiff in error, v. William Gould and David Banks, who sue as well for the United States as themselves.
    By the sixth section of the act of February ád, 1831, entitled “An act to amend the several acts respecting copyrights,” the penalty of fifty cents on each sheet, whether printed or being printed, or published or exposed to sale, is limited to the sheets in possession of the party who prints or exposes them to sale.
    It does not apply to those sheet® which he had published or procured to be published, whether they were found in his possession or not.
    This case was brought, by writ of error, from the Circuit Court of the United States for the Northern District of New York.
    It was a qui tarn action, brought by Gould and Banks against Backus, for an alleged invasion of their copyright in nine volumes of Cowen’s Reports, and the first three volumes of Wendell’s Reports.
    On the trial, the affidavit of John L. Wendell was read,, stating that he, the deponent, was the real plaintiff, and that Gould and Banks were merely nominal plaintiffs.
    In 1838, Backus published a book entitled “ A Digest of the Causes decided and reported in the Superior Court of the City of New York, the Vice-Chancellor’s Court, the Supreme Court of Judicature, the Court of Chancery, and the Court for the Correction of Errors, of the State of New York, from 1823 to October, 1836, with Tables of the Names of the Cases' and of Titles and References, being a Supplement to Johnson’s Digest.” To the declaration, Backus pleaded nil debet.

    Upon the' trial, the plaintiffs proved themselves entitled to the copyright of the first, second, and fifth volumes- of Cowen’s Reports, and of the second volume of Wendell’s Reports. And that from the above volumes the defendant had transferred, literally, one hundred and forty-two and a half pages; and they proved a sale by the defendant of five hundred copies of his work.
    The counsel for the defendant then prayed .the court to instruct the jury as fellows.
    1st. That John L. Wendell, and not the plaintiffs, was the owner and proprietor of the copyright to the said first, second, and fifth volumes of Cowen’s, and to the said second volume of Wendell’s Reports, and that, by- the statute,"--no person but the owner or proprietor could maintain said suit for said penalty,- and prayed the court so to instruct the jury, \Éut the court decided that the suit might be maintained in the name of William Gould and David Banks, notwithstanding the facts set forth in the affidavits of John L. Wendell; and so instructed the jury, and refused to instruct said jury as requested by defendant’s counsel; to which decision, instruction, and refusal, the counsel for the defendant excepted.
    . 2d. That the said books called the first, second, and fifth volumes of Cowen’s Reports, and second volume of Wendell’s Reports, are. not the subject of a copyright, and the publisher of them could acquire no exclusive' right to the publication thereof, and therefore could not be unlawfully infringed, and prayed the court so to instruct the jury. -But the court decided, that, although the opinions of the several courts, as contained in said volumes of reports, were not the subject, of a copyright, yet that the indexes of said volumes, and the statement of the cases preceding the opinions, and the marginal notes; or synopsis of the case, at the head of each cáse, were the subject of a copyright, for any infringement of which this action would lie, and so charged and instructed the jury, and refused to charge or instruct the jury as prayed by the. defendant’s counsel, to which decision, charge, and instruction, and refusal, the defendant’s counsel excepted.
    3d. The defendant’s counsel insisted, that if the said indexes were the subject óf a copyright, yet it was the duty of the proprietor thereof, who obtained the copyright, to express, in the title deposited and published, (where he was not entitled to a copyright of ."the whole book,) the matter for which he claimed such copyright; that he could not obtain a valid, copyright to such matter, which was a very small portior. of the work, under a general claim to a copyright to the whole book, and in this case he had not only not claimed any such copyright to the indexes, but merely a copyright to the report of the cases, and therefore had not acquired, any valid copyright to such indexes, and-prayed the court so to instruct the jury. But/ the court decided, that a copyright to the whole book would secure to the proprietors the exclusive right to such matter in the book as was susceptible of a copyright, although such matter composed ever so small a portion of the book, and so instructed'the jury, and refused to instruct said jury as requested by the counsel for the said defendant; to which decision, instruction, and refusal, the counsel for the defendant excepted.
    4th. The counsel for the defendant also insisted, that the plaintiffs having obtained a copyright purporting to be for the whole book, when they were only entitled to a copyright for a very small portion of the matter contained in such book, ‘such copyright was wholly void, and. no action would lie for any infringement of it, and prayed the court so to instruct the jury. But the court decided that such copyright would, and did,, secure to the plaintiffs the exclusive right to such matter in said book, whether it were more or' less, as he was entitled to obtain- a .copyright for, and that said copyright was not void, and that this action would lie for an infringement or pirating of any part of the matter in said books for which the plaintiffs were entitled to obtain a copyright, and so instructed the jury, and refused to instruct the jury as prayed by defendant’s counsel ; 'to which decision, instruction, and refusal, the defendant’s counsel excepted.
    5th. The counsel for the defendant also further .insisted,-that the publication of the said supplement, or third volume of Johnson’s Digest, was not a printing of publishing' of the said first, second, and fifth volumes of Cowen’s Reports, and second volume, of Wendell’s Reports, of which the said plaintiffs claimed to have the copyright, within the section of either of the acts of Congress giving said penalty. .Tha.t said penal sections of said acts were to be construed strictly, and did not impose any penalty for printing or publishing- a. small portion of the matter for which a copyright was obtained ; that, by the terms of the statute, the penalty was only inflicted for an unauthorized printing, reprinting, or publishing, &c., a copy or copies of the whole of the map, chart, book or books, for which the copyright had been obtained, and that for such printing, reprinting, or publishing any smaller portion than the whole, this action could not be sustained, and prayed the court so to instruct the jury. But the court decided, that an action for the penalty, given by the penal section of the act, would lie for the printing, reprinting,; or publishing by the defendant of any part or portion of the matter in said first, second, and fifth volumes of Cowen’s Rer ports, and second volume of Wendell’s Reports, to which the plaintiffs were entitled to a copyright, and so instructed the jury, and refused to instruct the jury as prayed by the defendant’s counsel; to which decision, instruction, and refusal, the counsel for the defendant exeepted.
    6th. The defendant’s .counsel also insisted that the offenee for the which the penalty sued for was.inflicted by the act of Congress was in the nature of a criminal offence; that the penalty was inflicted by the statute, in part, ás a punishment for a criminal offence, and in part as a punishment for a tortuous, if not a criminal, invasion of private property, and that the action was local; and that the act sor offence for which this action was brought was committed in the State of. Pennsylvania, and therefore out of the jurisdiction of this court, and consequently the present action could not be sustained, and prayed the court, so to instruct the jury. But the court decided that the action could be sustained in any State-of the Unioh, and so charged the jury, and refused to iristruet the jury as prayed by the defendant’s counselto which decision, charge, and .refusal, the defendant’s counsel excepted.
    7th. The counsel for the defendant also insisted, that the publication by the defendant of a bond fide digest of the first, second, and fifth volumes of Cowen’s Reports, and second volume of Wendell’s' Reports, was not an infringement of the copyright of the plaintiffs to said books; it was a benefit, and not an injury, to those books; and prayed the court so to instruct the jury, that if they found, from the evidence in the case, that the supplement, or third volume of Johnson’s Digest, published by the said defendant, was a bond fide digest of the decisions of the cases contained in said volumes, and was published by the defendant in good faith, and not for the purpose of furnishing to the public the matter contained in said volumes in a cheaper form or for a less price than those volumes were sold for; and that said digest was, in fact, a benefit instead of an injury to said volumes, and would promote the sales thereof; that then said publication was no infringement of the plaintiffs’ said copyright, and this action could'not be sustained, and the defendant would be entitled to their verdict. But the court refused so to ifistruct the jury; but did charge’ find instruct the jury, that if the defendant had transferred to his said digest any part- of the matter contained in the indexes of said first, second, and fifth volumes of Cowen’s Reports, or second volume of Wendell’s Reports, and thus availed himself of the labor of others contained in books of which the plaintiffs held the copyright, the plaintiffs were .entitled to their verdict'.; to which refusal, and charge, and instruction, the defendant’s counsel excepted.
    8th. The counsel.for the defendant also insisted, that from the very nature of the work published, the same idea contained in the indexes to said volumes of reports, if’correctly stated in .said indexes, must necessarily be stated in the digest published by defendantand if published in English, substantially the same words must be used ; and if the work was a bond fide digest, and not' an evasion for the purpoáe of furnishing the public with the work in a cheaper form than the original, the publication of said digest by the defendant could not be deemed an invasion of the plaintiffs’ copyright, unless the matter in said indexes had been literally transferred to the defendant’s digest, and prayed the court so to instruct the jury. But- the court refused so to instruct the jury, but instructed them, that if the defendant had transferred to the said digest, published’*by him, any part of. matter- contained in the indexes to said first-, second, and fifth volumes of Cowen’s Reports, and second volume of Wendell’s Reports, it was an invasiop' pf ’ the plaintiffs’ said copyright, for which this action would lie; to which refusal and instruction the counsel for the defendant excepted.
    9th. In regard to the amount of the penalty to be recovered, the defendant’s counsel insisted that-the plaintiifs could only recover fifty cents for every sheet of the matter transferred from said index to first, second, and fifth volumes of Cowen’s Reports, and second volume of Wendell’s, to the said digest of said defendant, as had been proved to have been found in his possession, either printing or printed, published* or .exposed for sale; and that there was no legal, proof that any such sheets of said matter had been so found in said defendant’s possession; and prayed the court so to instruct the jury. But the counsel for plaintiifs insisted that they were entitled to recover fifty cents for every sheet of such matter, which had been published, or procured to be published, by the defendant, whether the same were proved to have been found in the defendant’s possession or not •; and so the court decided’ and instructed the jury, and refused' to instruct the jury as prayed by the counsel for the defendant; to which decision and instruction, and refusal to instruct, the defendant’s counsel excepted. '
    And with such charge and instruction, the court submitted the cause to the jury, who, under such decisions, charge, and instruction, found a verdict for the plaintiifs for $ 2,069.75 debt, and six cents costs:
    Upon all these exceptions the case came up to this court.
    They were all fully argued, by Mir. James Bayard and Mr. Joseph R. Ingersoll, for the plaintiff in errdr, and Mr. Wendell, for the defendants in error.
    The arguments upon all the points, except the one- upon ' which the decision of the court turned, are omitted. The views expressed by Mr. Bayard were illustrated and enforced by Mr. Ingersoll, in his reply to Mr. Wendell.

      Mr. Bayard said, that, before entering upon the argument, it was right, as well in justice to His Honor the District Judge (Conkling) before whom the case was tried, as to prevent any prejudice to' the case from an apparent decision by the court below,, to state the circumstances under which the case comes before this, court.
    This case, with another, embracing precisely the same questions, (which- it is agreed shall abide the event of this,) came on to’ be tried before His Honor, Judge Conkling, who held the Circuit Court at Albany, in- October, 1843, in the absence of the Circuit Judge, (the late Mr. Justice Thompson,) who was absent from sickness. In order to take a verdict which should determine the facts, in the case, and fix the. amount of the penalty, if any had been incurred, the points of law were stated by counsel, and ruled by the judge without argument, with the understanding that they were to be argued before a full court, when Judge Thompson should be able to sit. His continued indisposition, which at last terminated in his death, prevented this from being done; and in July, 1845,- judgment was entered upon the verdict, by order of plaintiffs’ attorney, without argument. And this writ of error was sued out to bring the record into this court, where the case is really now to be decided for the 'first time.

      (Mr. Bayard then proceeded to argue the several points,, until he came to the ninth prayer to the court below.)
    . Again, by the express words of the act, the oftender is to forfeit, and pay fifty cents only“ for every such sheet which may be found in his possession.”
    This limitation has been totally disregarded by the learned judge of the Circuit Court, who adopted the views of the counsel for the plaintiffs, who “ insisted that they were entitled to recover fifty cents for every sheet of such matter which had been published, or procured to be published, by the defendant, whether the same were proved to have been found in the defendant’s possession or not,” and so decided and instructed the jury.
    This appears to be a most manifest disregard of the terms of the statute, in order to give what the judge seems to have considered an equitable construction, making it exténd to a case clearly beyond its terms, which is a mode of construction altogether inadmissible in the case of a penal statute.
    The reason of this lim: ation of the penalty may not be very clear; but the words of - the statute are plain, and when this is the case, there is no room for equitable construction in any statute, but especially, in a penal one.
    ; But it might not be difficult, if it were necessary, to find reasons for the limitation.
    • 1st. Congress did not intend that an author should lie by during the two years allowed for bringing his action, permitting another to publish and vend' his work during that time, and then recover fifty cents for every sheet so published.
    This would be laying a trap for his ruin, as I have shown that the penalty upon an ordinary edition might exceed $15,000; and if it were a popular work, several such editions might "be disposed of in the course of, two years.
    2d. But for this limitation, several penalties might be incurred by sevéral different persons on account of the same sheets.
    The penalty is to be inflicted upon “ any person who shall -.print, publish, or import, or cause to be printéd, publish imported, any copy, &c.,-without consent of thé owner, or who shall (knowing the same to be so printed or imported) publish, Sell, or cause to be published, sold, or exposed to sale, any copy,” &c.
    Not only, therefore, the publisher, but the printer, and every bookseller who sells a copy, may be liable to this penalty.
    Now, upon the principle adopted by the court below, the penalty is incurred by the act of publication, printing, or selling, and the amount is to be fixed by the number of copies published, printed, or sold, without .regard to where they may be found. In case, therefore, of an edition of such a work, the publisher who has caused it to be printed, the printer who has actually printed it, the bookseller in whose store the whole-edition has been placed for sale, and every bookseller to whom he has sent a part of it for sale, may bé liable to the penalty of fifty cents for the same identical sheets. This could never have been intended.
    3d. Again, it might be that a person who had unintentionally violated a copyright by the publication of a book might, upon discovering that his publication was illegal, destroy the whole edition, and so relieve himself from the penalty. But according to the decision of the Circuit Court, he would still remain liable. Nay, if he were even to give the whole edition to the author of the protected work, he would still, on the principle of this decision, remain liable to this penalty.
    These are some of the. reasons which might be given for this limitation of the penalty; but whatever the reasons may have been, the words are plain, and measure the amount of the penalty by the number of sheets “ found in defendant’s possession.”
    If the intention of the legislature was what the Circuit Court held it to have been, it would have been perfectly easy and most obviously proper to have expressed that intention, either by omitting the words, “-which may be found in.his possession,” or by adding after the word “ sale,” in the next line, the words, “ or which he may have sold, or caused to be sold ” ; either of which, particularly the former, would have been the simple and.natural mode of expressing the intention contended for by the plaintiffs.-
    Accordingly we find, that in the British statutes on copyright, (of which there have been- several,) there has been a change in this particular; and when the amount of the penalty was not intended to be measured by the number of books or sheets found in defendant’s possession, it has been so expressed.
    The first statute on this subject (from which all the subsequent ones, both in England and in this country, have been taken) was the statute 8 Ann, c. 19, (1710,) which gives to authors and their assigns the sole right of printing, publishing, and vending their books for fourteen years, with the right of renewal for fourteen years longer if the authors are living at the expiration of the first term. And the first section provides, that if any other person shall print, reprint, &c., any such book or books, without the consent of the author or his assignee, “then such offender or' offenders shall forfeit such book or books, and all and every sheet or sheets, being part of such book or books, to the proprietor or proprietors of the copyright thereof, who shall forthwith damask and make waste-paper of them ; and further, that every such offender or offenders shall forfeit one penny for every sheet which shall be found in his, her, or their custody either printed or. printing, published, or exposed to sale, contrary to the true intent and meaning of this act.5’- Here we have the same limitation as in our act of Congress.
    Next came the statute 12 Geo. II., c. 36, which was passed for the purposé of “prohibiting .the importation of books reprinted abroad, and first composed or written and printed in Great Britain,”
    The first section of this statute, after prohibiting theimporta- ' tion for sale of books first written or printed in England, directs the forfeiture of the books- so imported,, to be damasked or made waste-paper of, as in.the former statute, and then .adds, “ And further, that every such offender or offenders shall forfeit the sum of five. pounds, and double the value of every book which he or they shall so import or bring into this kingdom, or shall knowingly sell, publish, or expose to sale, or cause to be sold, published, or exposed to sale, contrary to the true intent and meaning of this act.”
    Here We have the penalty not limited to the books found in the offender’s custody or possession, but, extended to all the books imported, sold, or exposed to sale contrary to the provisions of the statute.
    The next statute was that of 15 Geo. III., c. 53, which was- “ An act for enabling thé two universities in England, the four universities in Scotland, and the several colleges of Eton, Westminster, and Winchester, to hold in perpetuity their copyright in books given or bequeathed ” to them, &c.
    The first section of this act secures to the said universities and colleges the. perpetual copyright in books given or bequeathed to them. The second section provides, that if any person shall print, reprint, or import any such book or books, he or they shall forfeit the same, and every sheet thereof, to be damasked or made waste-paper off “And, further, that such offender or offenders shall forfeit one penny for every sheet which shall be found in his, her, or their custody, either printing • or printed, published, or exposed to sale, contrary to the true intent and-meaning of this act.” Here we have the penalty limited to the- sheets found in the custody of the offender.
    The next was the statute 41 Geo. III., c. 10.7, entitled “ An -act for the further encouragement- of learning in the United Kingdom of Great Britain and Ireland, by securing the copies and copyright of printed books to. the authors of süch books, or their assigns, for the time herein mentioned.”
    This act is remarkable in several particulars, and especially with reference to the point now under consideration, that it has, in different sections, both the kinds of penalty; viz. one limited by the sheets found in the custody of the offender, and the other measured by the whole number of books imported. By the first section, .after reciting that “it is expedient that further protection- should be afforded to the authors of books,” &c., the sole right of printing and reprinting is given to the author, &c., for fourteen years, with' the right of renewal for another term of fourteen years, as before. . Then it is'enacted, that if any one violates this right, the offender or offenders shall be liable to a special action on the. case, at the suit of the proprietor of the copyright, in which damages may be recovered.' It is further enacted, that the offender shall forfeit such book or books, and all and every sheet .and sheets, being part thereof, to be damasked, as before. “ And all and every such offender and offenders shall also forfeit the sum of threepence for every sheet which shall be found in his or their custody, either printed or printing, or published, or exposed to sale,, contrary to the true intent and meaning of this act.”
    After several other provisions, not material to the present question, we come to the seventh section, which forbids the importation for sale of books first printed in the United Kingdom and afterwards reprinted abroad. - If any person shall import such book contrary to this act, “ then every such book shall be forfeited, and may be seized by any officer of the customs, and ■ the same shall be forthwith made waste-paper.”
    ‘ ‘ And all and every person so offending, upon conviction thereof, shall also, for every such offence, forfeit the sum of ten pounds, and double the value of each and every copy of such book Or books which he, she, or they shall so import or bring, or cause to be imported or brought, into any part of the said United Kingdom.”
    Here was a statute intended to give “further protection” to authors, which it does by, — 1st; extending the sole right - of authors, &c., to the whole of the United Kingdom of Great Britain and Ireland; 2d, giving a special action, on the case to proprietors of copyrights; 3d, increasing the penalty on reprinting, &c., from one penny to threepence; 4th, giving to officers of the customs the right, and making it their duty, to seize and destroy any books imported in violation of the act ; 5th, increasing the penalty on importing such books from five to ten pounds. But the court will observe, that although this statute was intended.to increase the protection to copyright, and although the legislature had fully in view the two different modes of measuring the penalty, imposing one in the first section and the other in the seventh, yet they made ,no alteration in this' respect with regard to books reprinted in the kingdom, but adhered to the-original limitation, contained in the statute of Ann, only increasing the penalty from one penny to threepence, while théy follow the statute of 12 Geo. II. in extending the penalty on imported books to all books imported.
    The next act shows the intention of the legislature still more clearly. That was the statute 54 Geo. III., c. 156, entitléd “ An act to amend the several acts for the encouragement of learning, by securing the copies and copyright of printed books to the authors of such books or their assigns.”
    The fourth' section of this act extends the term of copyright to twenty-eight years, (with a subsequent extension, in section ninth, for the life of the author, if living at the expiration of the twenty-eight years,) gives the special action on the case for violation of the copyright, directs the forfeiture of every book printed, &c., in violation of the copyright, to be damasked, as before, and then provides, that “all and every such offender and offenders shall also forfeit the sum of threepence for every sheet thereof, either printed or printing, or published, or exposed to sale, contrary to the true intent and meaning of this act.” Here the limitation to sheets found in the custody of the offender is omitted, — and this is particularly important, as Í will show presently when I come'to examine the acts of Congress on this subject.
    I have been thus particular in the examination of these British statutes, because the'acts of Congress have been evidently taken from them, copying the. very-words in many instances. And in the absence of decided cases, putting a judicial construction upon these acts, it is important to learn the sense of the legislature, as to the true meaning of the terms used, from the changes which have been made from time to time; and it is very evident, from this examination, that where the legislature intended to extend the penalty beyond the books or sheets found in the custody óf the offender, they have said so in such a way as to- leave no doubt about it; as, first, in the case of .importation of protected books, the offender forfeits double the-value of every book imported, and, finally, in 1814, and not till then, in case of reprinting in England, the offender shall' forfeit threepence for every sheet either printed or printing, or published, or exposed to sale, contrary to the act.
    In the last British statute on this subject, 6 & 6 Yict., c. 45, which repeals the former acts, and forms a complete system of copyright law, the penalty of pecuniary forfeiture is omitted altogether *, and the proprietor of a copyright has a special action on the case for damages, and a right to maintain detinue! or trover for the pirated copies.
    Now let us turn to the acts of Congress on this subject. The'first was the act of the 31st of May, 1790, which gives to the author or authors of any map, chart, book, or books, (being citizens of the United States,) and their executors, administrators, and assigns, the sole right to print, reprint, publish, and vend the same for the term of fourteen years, with the right of renewal by the author, if living, for another term of fourteen years.
    The third section provides' the penalty for violating this copyright, viz.: — 1st. Forfeiture of every copy of the book, &c., wrongfully printed, to be destroyed, &c.; 2d. “And every such offender arid offenders shall also forfeit and pay the sum of fifty cents for every sheet which shall be found in his or their possession, either printed or printing, published, imported, or ex-' posed to sale, contrary to the true intent and meaning of this act.”
    The court will observe that these provisions of this act were taken from the British statutes then in existence. The same term of duration, — • fourteen years, with the'right of renewal for fourteen years more if the author were living. The same penalty, — forfeiture of books to be destroyed, anu payment of a sum of money for every sheet found in the offender’s possession. The difference in this part of the act being, that Congress uses the word “possession” instead of “custody,” and fixes the penalty at fifty cents instead of threepence, thus mak-' ing this act much more severe than the British statutes, as I remarked in a former part of my argument.
    .. Then we come to the act,of February 3, 1831, under which this action is brought,- for it repeals the previous acts. This act extends the term of copyright to twenty-eight years, with the right of renewal for fourteen years more by the author, if living, and then, after providing the mode of securing the copyright by deposit of title-page, and giving notice by publications, the sixth section provides the penalty, which is, as in the former act, forfeiture of every copy of the book, but not to be destroyed, and' “ fifty cents for every sheet which may be found in his possession, either printed or printing, published, imported, or exposed to sale, contrary to the intent of this act.”
    Now the court .will observe that this act of Congress was passed sixteen years after the statute 34 Geo. III.,c. 156. And there- can be no doubt that this statute was before the framers of the act of Congress, not only from the general presumption that Congress would be acquainted with an - act of Parliament on the same subject passed sixteen years before, but from their adopting some of its provisions,- such as the extended term of ¿wenty-eight years. And yet Congress ' carefully adheres to the old penalty, limiting it to the sheets found in the offender’s possession, although they must have seen the alteration made in the British statute, and known that the effect would be to extend the penalty to all sheets printed or imported. Perhaps Congress thought the penalty of fifty cents a sheet was so large, that it ought to be limited to the sheets found in defendant’s possession. Perhaps it was intended to excite the diligence of the informer to commence his action as soon as the work was published, and before it passed out of the pos-session of the publisher; or, more probably, the penalty thus limited was intended to operate as a restraint upon booksellers 'who might take the work for sale, and who would be subject to the penalty for the sheets found in their possession. But whatever may have been the reason, the words of the act of Congress are distinct and plain.
    The legislature has prescribed a certain penalty, to be measured by a standard distinctly given. The British Parliament saw proper to alter and enlarge that penalty-for the United Kingdom of Great Britain and lreland. But the Congress of the United States, when their attention was specially called to the subject, have refused to adopt this alteration. They have - adhered to the old penalty, and the courts of the United States will not make the alteration.
    If this constructipn is correct, as I trust the court will agree' with us in thinking it to be, it is very evident that the instruction given by the court, and the verdict found by the jury in this case under the direction of the district judge, impose a penalty totally different from that prescribed by the law, — for not a single sheet of this work was found to be in the possession of the defendantand the judgment upon it must therefore be reversed.

      Mr. Wendell.

    It is said that the penalty of fifty cents is limited to the sheets found in the possession of the defendant, though the counsel candidly admitted it to be difficult to discern the reason •of that limitation. . He, however, suggested that it might have been on account of the enormous penalty which would be imposed in the case of the reprint of a whole volume, and that it might have been, to induce the bringing of an action forthwith, before the books had passed into the hands of innocent holders, and thus save them from prosecution. It was also said, that,' although in the later acts of the Parliament of England upon the subject of copyright, the words ‘f sheets found in the custody of the offender ” are omitted, the similar words contained in our original act upon the subject are still continued in the last' act of Congress; from which it was inferred, that these words contained some peculiar meaning, which, with us, was •intended to be preserved. The answers to which suggestions are, —- 1st, that the penalty will be equally enormous whether the ¡action be brought' forthwith or at the end of'a year; 2d, that innocent holders of the pirated work are not exposed, for the penalty reaches .only those who knowingly sell; and,- 3d, the change of phraseology in the. acts of Parliament shows that these words were considered mere, matter of form, as “ sheets printing and printed,?’ the only state of things to which the words could attach, are retained in the act.
   Mr. Justice McLEAN

delivered the opinion of the- court.

This cause is brought here by a writ of error to the Circuit Cfiurt of the United States for the Northern District of New York.

An action of debt was brought by .Gould and Banks to recover certain penalties alleged to have been incurred by the invasion of the copyright of the plaintiffs in twelve volumes of law reports, to wit, nine volumes of Cowen’s Reports and three of Wendell’s, by the publication of a Digest as a supplement or third volume of Johnson’s Digest. The defendant pleaded nil debit.

On the trial, the plaintiffs proved themselves entitled to the copyright of the first, second, and fifth volumes of Cowen’s Reports, pnd of the second volume of Wendell’s Reports; and that from the above volumes the defendant had transferred, literally, one hundred and forty-two and a half pagés; and they proved a sale by the defendant of five hundred copies of his work.

The 'injury complained of consisted in copying from the above reports the marginal notes or indexes of the reporter, and publishing them in the Digest.' From the first volume of Cowen’s Reports forty pages were copied, from the second volume twenty-nine, from the fifth fifty-four pages, and from the second volume of Wendell’s Reports nineteen and a half pagos were copied, which included the whole of the indexes of that volume except eight ■ and a half pages. The change in the phraseology was so great in these pages that the witness did not consider them as having been transferred to the Digest.'

This is a qui tarn action, and was brought under the sixth section of the act of 1831, entitled “An act to amend the several acts respecting copyrights.” -

Before the Circuit Court many points of law were raised, and' instructions prayed, on the facts in evidence; but as the decision will turn upon the construction of the above section, under the ninth prayer of the defendant, the other questions will not be considered.

The defendant’s counsel insisted “that the plaintiffs could only recover-fifty cents for every sheet of the matter transferred from said index to the first, second, and ‘fifth volumes of Cowen’s Reports, and the second volume of Wendell’s, to the said Digest of said defendant, as had been proved to have been found in his possession, either printing or .printed,- published, or exposed for sale; and that there was no legal proof .that any such sheets of said matter had been so found in said defendant’s possession, and prayed the court so to instruct the jury.”

“But the counsel for plaintiffs insisted that they were entitled to recover fifty cents for every sheet of such matter which had been published, or procured to be published, by the defendant, whether the same were proved to have been .found in the defendant’s possession or not; “-and so the court decided and instructed the jury.” And they found a verdict for plaintiffs for “ two thousand sixty-nine dollars and seventy-five cents debt, and six cents costs.”

The sixth section provides, that, if any person, within the term for which a copyright has been secured, shall print, publish, or import, &c., sell, or expose to sale, or cause to be published, sold, or exposed to sale, any copy of such' book, without consent in writing, such offender shall forfeit every copy of such, book to the person legally entitled to the copyright thereof; “ and shall also forfeit and pay fifty cents for every such sheet which may be found in bis possession, either printed or printing, published, imported, or exposed to sale, contrary to the intent of this act.”

This penalty of fifty cents on each sheet, whether printed or being printed, or published, or exposed to sale, is limited to the sheets in possession of the defendant. But under the instruction of the court, a verdict was rendered for every sheet which the defendant had published or procured to be published.

As this is a penal section, it must be construed strictly. Under it, every copy of a book published without the consent of the person having the copyright is forfeited, in addition to the penalty of fifty cents on each sheet in his possession.

The declaration seems not to have been drawn with the view of enforcing any other penalty than that which is imposed for each sheet found in the possession of the defendant.

The judgment of the Circuit Court is reversed, and the cause remanded for further proceedings.

Order.

This cause came on to he heard on the transcript of the record from the Circuit Court of the. United' States for the Northern District of New York, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court,- with directions to award a venire facias de novo.


source: Caselaw Access Project

author: Mr. Chief Justice TANEY

license: Public Domain

text:
    Jonathan W. Nesmith and Thomas Nesmith, Complainants, v. Thomas C. Sheldon, Horace H. Comstock, David French, William E. Peters, James Forton, Atta E. Mather, Henry B. Holbrook, Samuel P. Mead, Francis E. Eldred, Phebe Ann Dean, Cullen Brown, and Charles H. Stewart, Respondents.
    The legislature of Michigan passed an act on the 15 th March, 1837, entitled “An act to organize and regulate banking associations,” and on the 30th of December, 1837, an act to amend the former act. By the first, any persons were allowed to form associations for the purposes of banking upon the terms specified in the law; and by the second, the stockholders were made liable, in their individual character, under certain circumstances, for the debts of the association.
    The associations formed under these acts are corporations within the meaning of the constitution of Michigan, and the acts are unconstitutional and void.
    The second section of the twelfth article of the constitution forbidding the legislature from “ passing any act of incorporation unless with the assent of at least two thirds of each house,” the judgment of the legislature is required to be exercised upon the propriety of creating each particular corporation, and two thirds of each house must sanction and approve each individual charter.
    The Supreme Court of the State of Michigan has so construed its constitution, and it is the established doctrine of this court, that it will adopt and follow the decisions of the State courts in the construction of their own statutes where that construction has been settled by the decision of their highest judicial tribunal.
    This case was formerly before this court, on a certificate of division in opinion between the judges of the Circuit Court for the District of Michigan. ' Its facts and the reasons for its dismissal will be found in 6 Howard, 41.
    It now came, up upon the following certificate of division in opinion.

      “ This case having been remanded by the Supreme Courts on the ground that it had not been properly certified on certain points under the act of Congress, and the cause being brought before the court for their consideration and decision, the opinions of the judges are opposed on the following point: —
    “ Whether the banking associations organized under the act of tlie legislature of the State of Michigan entitled (An act to organize and regulate banking associations,’ approved March 15th, 1837, and the amended act entitled ‘ An act to amend an act entitled “ An act to regúlate banking associations and for other purposes,” ’ approved December 30th, 1837, were or were not corporations or bodies corporate, within the meaning, of the constitution of the State of Michigan.”
    Article fourth, section first,, of the constitution of the State of Michigan is as follows: — “ The legislative power shall be vested in a Senate and House of Representatives.”
    Section second of article twelfth of said constitution is as follows:— “ The legislature shall pass no act of -incorporation, unless with the assent of at least two thirds of each house.”
    The first act referred to in the question upon which the judges decided, namely, that of March 15th, 1837, authorized any persons to form associations for the purpose of banking upon the terms specified in the law. It was passed by a vote of two thirds of each branch of the legislature. .
    The second act referred to provided as follows: — That, “ for all debts of such banking association, the directors thereof, if such association shall become insolvent; in the first place shall be liable in their individual capacity to the full amount which such insolvent association may be indebted; and each other stockholder shall thereafter be also liable in like manner, in proportion to his or her amount of stock, for the payment of the full amount of the debts of such insolvent association.”
    The bill filed by the Nesmiths claimed to hold the defendants responsible, as stockholders, for the debts due by the Detroit City Bank..
    The bill was demurred to, and, upon the hearing, the division between the judges occurred as above mentioned, and was certified to this court.
    It was argued by Mr. Seaman, for the complainants, and Mr. Romeyn, for the defendants.

      Mr. Seaman, in noticing the argument of the binding authority • of the decision of the Supreme Court of Michigan, said: —
    It is insisted by the defendants’ counsel, that the case of Green v. Graves is a judicial exposition, by_ the Supreme Court, of the constitution of the State, and of the general banking acts passed by the State legislature, and comes within the principles established by this court in the case of Green v. Neal, reported in 6 Peters, 291. The point there decided is, that “ a fixed and received construction of a statute of a State "by its own courts makes a part of the statute law,” citing the case of Shelby v. Guy, 11 Wheaton, 361, and also a case in 7 Wheaton, 361, and several other cases. This rule is adopted on account of the State statute forming a rule.of property, and it applies more particularly to real estate, as is stated in 2 How-1 ard, 125( and 5 Cranch, 22. As stated in 6 Peters, 298, rights are acquired under this rule, and it regulates all the transactions which come within its scope ; and on page 296,- referring to the case of Massie v. Watts, 6 Cranch, 165, the court says,,— “A great proportion of the landed property of the country depends on adhering to them.” The professed object of the rule is, to prevent two rules of property, and particularly in relation to real property, in the same State, — one in the State courts, and another in the national courts. This is undoubtedly desirable. The principal reason on which the rule is founded appears to be this, as referred to on pages 298 and 296 in 6 Peters,- citing the case of McKeen v. Delaney in ,5 Cranch, 22, that when the State courts have given a construction to their statutes, and contracts, deeds, <fcc., have been made in pursuance of such construction, and rights have been thus acquired and have become vested, those rights ought not to be divested and contracts invalidated by a different construction of the statute by the national courts. This is undoubtedly in accordance with the principles of natural justice, and is sound reason as well as sound law. The principle recognizes the decision’ of the State court as forming “ part of the statute,” and thereby recognizes the highest court of the State as part of the law-making power; as vested with the power of legislating and making laws, —: that is, of engrafting upon the enactments of the legislature. new clauses and sections, explanatory of the original statutes; and that acts done, contracts made, and rights acquired under these judicial enactments, called decisions, shall be equally valid and sacred in the national as in the State courts. All this seems to be correct; the legislative power of our courts seems to arise from the structure of our institutions; and so far as regards common law rights, it arises from the very nature of things.. The only difficulty in the case arises from the fact, that humán reason is weak and feeble, short-sighted, cannot look into futurity to see the ultimate effect of its .own opinions, and is.extremely liable to be swayed by passion, prejudice, and interest; and in attempting to engraft upon the statute explanatory clauses and sections, judges often materially change the purport, nature, and effect of it. If judges were omniscient in wisdom, pure in morals, free from passion and prejudice, and unerring in judgment, this difficulty would not exist. But let us suppose the State courts do, in effect, materially change the statute in constructing it, as seems to have been suspected and intimated by this court in the case of McKeen v. Delaney, 5 Cranch, 22, and rights are acquired under and on the faith of such wrong judicial expositions; such rights ought to be protected, and for that purpose the wrong judicial construction ought to be regarded as an alteration, as an amendment to the statute, and should be so treated, so far as respects all rights accruing under it, by courts of justice, both State and national.
    The question, then, resolves itself into this, — Should these judicial alterations and amendments of the statute have a retrospective, or only a prospective effect? If they are to have only a prospective effect, their influence may be in the highest degree salutary; but if a retrospective effect and application are to be given to them, the consequences will be in many cases very pernicious. The second question is, — Will the judges of this 'court presume that the State courts are infallible, and their decisions an unerring exposition of the State, statute, and shut their eyes entirely to the terms and provisions of the statute, and refuse to inquire whether the decision of a State court is a fair explanatory law, or should be regarded in the light of a material amendment and change of the original statute. If your honors should look into the statute as well as into the decision, and find the decision equivalent to an amendment of the statute, then the amendment should not have a retrospective effect; and if the State courts give it a retrospective effect, and thereby "wrong, injure, and'defraud their own citizens, who are obliged to sue in those courts, it is no reason why the national courts, which were created to protect the rights of citizens of other States,'should allow their suitors to be wronged and defrauded in like manner. The next question is, — If your honors allow the State courts, not only to'assume law-making powers, but to set the .legislature of thé State at defiance, disregard their statutes, and engraft upon such statutes as many alterations and amendments as they think fit and proper, will your honors allow them to play the same pranks with the State constitutions also, and éngraft as many of their dogmas and as many alterations and amendments upon these fundamental laws of the people as they see fit ?

      Mr. Seaman then proceeded with his argument at great, length.

      Mr. .Romeyn, after stating the case, said : —
    This question has been submitted to the Supreme Court of the State of Michigan, the highest judicial tribunal in the State. The report of the decision of that court is found in the case of Green, Receiver of the Bank of Niles, v. Graves, in 1 Douglas’s (Michigan) Reports, 351. The concluding sentence of the decision (on p. 372) is as follows: — “ The result of our deliberations, then, is, that so much of the act under which the Bank of Niles was organized, as purports to confer corporate rights upon the associations organized under its provisions, is unconstitutional and void, and that the demurrer in this case must be sustained.” '
    The court consisted of four judges, three' of whom .concurred in that opinion, and the fourth did not dissent, but declined to participate in it, because he had not heard the argument.
    In the case of Brooks et al:, plaintiffs in error, v. Warren Hill, defendant in error, decided in -March, 1848, and not yet reported, the Supreme Court unanimously reaffirmed the decision in the case of Green v. Graves, and decided, further, that the associations under the laws in question had in no sense or form a valid and legal existence. The adjudications of the highest tribunal in the State are thus consistent and settled.
    I do not propose to reargue the questions involved in' these decisions. The opinion of the Supreme Court discloses fully the grounds of the judgment.
    These, decisions affect the construction of the organic law of the State in a most.important particular, and they involve interests of vast extent. It is difficult to imagine a case in which a disagreement between the federal tribunals and the State judicatories would be more alarming or mischievous. The bills of these associations are principally payable to bearer, and transferable by delivery. Any holder in another State would therefore, have a right to sue in the Circuit Court. They are not affected by the. statutes of limitations. Michigan Rev. Stat. of 1838, p. 576, § 4. It is plain that the consequences would be most disastrous of a decision by this court, by virtue of which a non-resident could, at any time, enforce the collection. of the issues of these banks from parties who are prevented by the State decisions from collecting the assets of the bank, or availing themselves of its collateral securities, or compelling a contribution from others.
    The obligation of this court to respect .and follow the decisions of the State courts on the construction of their local laws will no.t be disputed. Brown v. Yan Braam, 3 Dali. 344; note to same'case in 1 Pet. Cond. 159; Elmendorf v. Taylor, 10 Wheat. 152; Swift v. Tyson, 16 Ret. 18; Groves et al. v. Slaughter, 15 Pet. 497; Rowan v. Runnels, 5 How. 139.

      The last case contains the only limitations of the general rule. These limitations do not touch this suit. In it there has been no decision by this court.
    There was a decision by the Circuit Court of the United States for the District of Michigan, in the case-,of Falconer and Higgins v. Campbell et al., reported in 2 McLean, 195. It was a suit against the defendants as directors, and it was followed by a bill in equity in the same court against the stockholders, to enforce the collection of the judgment. This case is still undisposed of, — the result, by stipulation, awaiting the decision of the suit- now before this court. Surely a single decision in a single circuit, and • that, virtually appealed from and pending in this court, will not lead to 'a disregard of the settled and deliberate adjudications of the highest tribunal' of -a State upon a most important part of its own constitution.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

In this case, the Circuit Court for the District of Michigan have certified that the following point arose in this case, upon which the justices were opposed in opinion: —

“ Whether the banking associations organized under the act ■ of the legislature of the State of Michigan, entitled An act to organize and regulate banking associations,’ approved March 15th, 1837, and the amended act, entitled 1 An act to amend an act, entitled .“ An act to regulate banking associations and for other purposes,” ’ approved December 30th, 1837, were or were not corporations or bodies corporate, within the meaning, of the constitution of the State of Michigan.”

This question, it appears, depends on the construction of the-constitution of Michigan, which declares that the legislature shall pass no act of incorporation unless with the assent of at least two thirds of each house.

The legislature chosen under this constitution, with the assent of two thirds of each house, passed an. act authorizing any persons resident in any county in the State to form associations for banking business, upon the terms and conditions prescribed in the law; and declaring the stockholders in such associations to be a body politic and corporate, by such name as they should designate and assume, and conferring upon them-, the usual powers of banking corporations.

Under this act of the legislature, an association of persons was organized, under the name of the Detroit City Bank.

Another act was afterwards passed by the legislature, -under a power reserved in the first, to amend its provisions. And this act, under certain circumstances, made the stockholders liable for the debts of the association.

The complainants, in this case, having become creditors of the association, filed their bill in equity, to charge the defendants as stockholders, under the provisions of the last-mentioned act. And in the progress of this suit, the question arose which has been certified as above mentioned..

If we regarded the question as an open one, a more particular statement of the provisions of these acts of the legislature would be necessary, and also of the transactions which led to this suit. And the point certified would require a very careful and deliberate examination by this court..

But it appears that the same question has arisen in the Statfe courts of Michigan, and been decided in its Supreme Court, upon full argument and consideration. We refer to the case of Green v. Graves, decided in 1844, and reported in 1 Doug. Michigan Reports, 351. In that case the court held,, that the banking associations organized under the acts of the legislature mentioned in the' certificate of division were corporations within the meaning of the constitution of Michigan; and that these acts were unconstitutional and void.

The point certified is precisely the same. It relates altogether to the construction and ■ legal effect of the constitution of that -State, and of the two. acts passed by its legislature. Anu it' is the established doctriné of this court, that it will adopt and follow the decisions of the State courts in the construction of their own constitution and statutes, when that construction has been settled by the decision of its highest judicial tribunal. After the decision above mentioned, therefore,.- the question certified cannot be considered as open for argument in this court. The cases of Groves v. Slaughter, 15 Peters, 449, and the two cases of Rowan v. Runnéls, 5 How. 134, in relation to the. construction of the constitution of Mississippi, stand on very different grounds, as will be seen by a reference to the cases.

Upon this view of the subject, it will be certified to the Circuit Court, as the opinion of this court, that the banking associations organized under the acts of the legislature mentioned in the certificate of division were corporations within the meaning of the constitution of Michigan; and that these acts of the legislature are unconstitutional and void.

Order.

This cause came.on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Michigan, and on the point and question on which the judges of the said Circuit Court were opposed in opinion, and which was certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this court, (that the banking associations organized under the act of the legislature of the State of Michigan, entitled “An act to organize and regulate banking associations,” approved iMarch 15th, 1837, and the amended act entitled “An act to regulate banking associations, and for' other purposes,” approved December 30th, 1837, were corporations or bodies corporate within the meaning of the constitution of the State of Michigan, i?nd that these acts of the legislature are unconstitutional and void; whereupon it is now here ordered arid decreed by this court, that it be so certified to the said Circuit Court.


author: Mr. Justice GRIER

text:
    George B. Stearns, Administrator de bonis non of John O. Page, Appellant, v. Rufus R. Page.
    The general rules stated which govern, a court of equity in opening accounts and sustaining claims which are barred by the statute of limitations.
    Great caution is exercised, and the complainant is holden to stringent rules of pleading and evidence.
    He must state in his bill, distinctly, the particular-act of fraud, misrepresentation, or concealment; must specify how, when, and in what manner it was perpetrated.
    The charges must be definite and reasonably certain; capable of proof and clearly proved.
    If-a mistake is alleged, it must be stated with precision and made apparent, so that the court may rectify it, with a feeling of certainty that they are not committing another and perhaps greater mistake.
    And especially must there be distinct averments as to the time when the fraud, mistake, concealment, or misrepresentation wag discovered, and what the • discovery is, so that the court may clearly see whether, by the exercise of ordinary diligence, the discovery might not have been before made.
    This was an appeal from the Circuit Court of the United States, sitting as a court of equity, for the District of Maine.
    The bill, filed by Steams as administrator de bonis non of John O. Page, proposed to open and review the accounts of the. estate of said Page, which were .filed from 1811 to 1816 by his widow and original administratrix, Sarah Page.
    The record was very voluminous. There was a bill, and an amended bill, ard amendments to the amended bill, and an amendment to cue of the amendments to the amended bill. Then there were answers to all these bills, and exceptions to the answers, and motions for the production of .books and papers; and a great mass of testimony filed. After all, the record was deemed incomplete, and a certiorari issued to bring up more.

      It is unnecessary to give an extended account of all these things, because the opinion of the court is so intermingled with, and founded upon, the facts of the case, that it is sufficient for the Reporter to refer the reader to that opinion.
    The defendant below pleaded the statute of limitations, although he answered the bill.
    In October, 1843, "the Circuit Court dismissed the bill, when the complainant appealed to this'court.
    It was argued by Mr. Evans, for the appellant, and Mr. Allen, for the appellee". Only such parts of their arguments will be given as bear upon the question of limitations.

      Mr. Evans’s third point was, that the plaintiff is not barred by the statute of limitations, nor by lapse of time.
    The questions how far courts of equity are bound by statutes of limitations, and whether ex propria vigore, or only by rules of their own by analogy to the statute, and how far and under what circumstances lapse of time is a bar,, have been frequently discussed before this and other tribunals.
    In many cases relief has been refused; in many cases it has been granted.. Many general expressions have been used, and frequent attempts been made to define with precision the principles which govern courts in these cases. But, after all, it comes to exactly this, — that there is and can be, in the nature, of things, no certain and definite rule on the subject; Each case must depend upon ’ the exercise of a sound discretion, growing out of the circumstances of the case. 3 Johns. Oh. Cas. 586.
    Hercy v. Dinwoody, 2 Ves. jr. 90-93, reviews the cases prior to that time, and repeatedly speaks of the circumstances as influencing the decision one way or the other.
    What,' then, are. the particular circumstances, or the nature and kind of circumstances, which have been held to bar relief?
    Théy will be found to be cases where the fraud was known to the party affected by it, and who has neglected, for ■ a long time, to assert his rights.
    Or where the circumstances afford a presumption almost irresistible, that the matter was adjusted and. settled by the parties in the time of it.
    Or where it appears satisfactorily, that evidence has been lost, papers burned, documents scattered, which could, throw light upon it, thus leaving it altogether in doubt whether any fraud wore really committed.
    Or where it is inequitable to grant relief; — where there is a want of good faith and conscience in the party seeking it; as where the sureties of an executor were called in, after a long period, to make good the fraud of his testator, &c.; — or where the property in question has passed into bona, Jide hands, large expenditures made, &c.
    Where this is done with ■ a knowledge of the party seeking relief, it is a want of good faith to seek it. Where without his knowledge, then it has arisen from want of reasonable diligence, — and the court will not permit an innocent man to suffer to help a. negligent one.
    Or where, on some ground of public policy, it is deemed right not to disturb family settlements and possessions.
    But in cases of actual frand, against the party himself, I know of no case where relief has been withheld, unless the circumstances of the case show clearly and satisfactorily that it was known and acquiesced in, or furnish sufficient presumption that it was settled.
    Where is the case that mere lapse of time, without such circumstances, bars relief?
    What would be said to a bill charging fraud, admitted by the answer, but repelling it by urging, You are too late. True, I defrauded you ; whether you knew it or not, I neither know nor care. I have had the fruits of it thirty years, and I set you at defiance. What would the court say ? If they would grant the relief, as I think they would, then it follows that mere lapse of time, in such a state of things, is no bar.
    The cases maintain this view. Any quantity of them may be found.
    Lord Erskine, in Cotterell v. Purchase, Forrester, 66, says, — “No length of time can prevent the unkennelling of a fraud.” .
    Lord Northington, in Alden v. Gregory, 2 Eden, 285, says, — “ The next question is, in effect, whether delay will purge a fraud. Never, while I sit here. Every delay adds to its injustice, and multiplies its oppression.”
    So in 2 Yes. jr. 281, 282. No length of time merely, a bar. (See case.) And that was a case where no fraud imputed.
    So in our own courts. Prevost v. Gratz, 6 Wheat. 481.: — “ It is certainly true, that length of time is no bar to a trust clearly established; and in a case where fraud is imputed and proved, length of time ought not, on principles of eternal justice, to be admitted to repel relief. On the other hand, it would seem that the length of time during which the fraud has been successfully concealed and practised is rather an aggravation of the offence, and calls more loudly upon a court of equity to give ample and decisive relief.”
    In Michoud v, Girod, 4 How. 560, 561, no length of time, as against a party to the fraud.

      In Warner v. Daniels, 1 Wood. & Min., on p. Ill, Justice Woodbury recognizes the general principle, that, where fraud exists, length of time is no bar, and cites several cases, quod vide.

    So it will not be a bar if it would work injustice. Other cases cited by Woodbury, 112.
    The true reason for the rule is stated in Fonblanque on Eq. 260 (marginal, p. 331) in notis: — “But though courts of_ equity will interpose to prevent these mischiefs, which would probably result from persons being allowed to bring forward stale demands at any distance of time to disturb the' possessions of others, yet, as its interference in such cases proceeds upon the principles of conscience, it will not encourage, nor in any manner protect, the abuse of confidence, and therefore no length of time will bar a fraud.”
    He afterwards adds,— “Unless it appears that the circumstances of the fraud were known to the party, and that with such knowledge he has lain by a considerable length of time.”
    Before length of time can operate as a bar, it must appear, —- be shown affirmatively, — that the party had knowledge.
    It is important to keep this in mind. Some of the authorities speak of - “ equitable circumstances ” being allowed to repel the bar, from which it would seem to follow, that the burden was on plaintiffbut the true rule is, that time is not of itself merely and per se a bar, but is made so, and may be made so, by the circumstances of the case.
    There are numerous other cases, to the effect that time proves no bar, unless under circumstances. 10 Ves. (Sumner’s edition) 423; 2 Johns. Ch. 252; Pugh’s Heirs v. Bell’s Heirs, 1 J. J. Marshall; Bertine v. Varían, 1 Edw. Ch. 343.
    But where a fraud appears in a stated account, the whole will be opened, though of a great many years’ standing. Vernon v. Vawdry, 2 Átk. 119; Whalley v. Whalley, 1 Meriv. 436; 3.Bro. Ch. Cas. (Am. ed. 1844) 646, 527, note.
    This subject has been before the court recently. Attention drawn to it in Lewis v. Beard, decided this term. They refer to McKnight v. Taylor, 1 How. 161, and to Piatt v. Vattier, 9 Pet. 416, as containing their views of the general rules applicable to such cases.
    It is to -be noticed, thát all these cases were cases where the circumstances rendered it inequitable to grant the relief, —- cases of unmitigated neglect, leaving no reasonable doubt of injustice being done by granting the relief sought.
    There was no occasion, therefore, to examine the cases where such circumstances were wanting. Adopting the principle applicable to such a state of facts, and almost the language of an English case, .they say the court will not be called into activity, unless where conscience, good faith, and reasonable diligence exist on the part of the plaintiff. Certainly., Conscience and good faith, in not disturbing others’ possessions, and reasonable diligence, so that no' pretence of acquiescence might arise.
    But whatever effect is to be given to lapse of time, or' the statute of limitations, ordinarily, it is quite clear, from all the authorities, that it does not begin to. operate until" thé discovery of the fraud. It must .be full and Complete discovery.
    In cases of fraud, the statute begins to run from the time of such full and complete disclosure as enables the parties inter.ested to see the nature and extent- of the fraud committed. Croft v. Administrators of Townsend, 3 Desaus. 239; Wam-burzee v. Kennedy, 4 Desaus. 474. See also the cases cited by counsel itj 4 Howard, 552;, Boone v. Chiles, 10 Peters, 223.
    Vague rumors , not sufficient. A party possessing imperfect information is guilty of no laches. See cases cited by counsel as before, 4 Howard, 552.
    In the case at bar, the discovery was made within six. years from-filing the bill. So alleged. in .the bill. Not denied by answer. -Is therefore to be taken as true.
    - The defendant is bound to negative particularly all circumstances alleged in the bill calculated. to avoid the statute. .8 Cow. 360; 3 Johns.. Oh. 384, 391; Story on Eq. PI. § 754, et seq.; 6 Ves. 586; 2 Paige, 576; 'same, in 11 Pick. 331; 3 Paige, 273; and cases in any number cited in Cow. & Hill’s Phil. Ev. Discovery of paper written by J., O. P., since bill filed, not denied by answer.
    The offer to refer to arbitrators is a waiver of the bar relied upon. This not denied by answer. Báillie a.;Sibbald, 15 Ves. 185; Farnham v. Brooks, 9 Pick. 212; 2 Story Eq. § 1521, ét seq.; 1 ib. §^523, et seq.:
    Equitable circumstances may be shown to. repel the whole effect of the bar. • 2 Story. Eq. § 1524. (See note on p. 737.)
    There are other equitable .circumstances in the case, which should do away the effect of the lapse of timé. The. books and papers are in existence, and intelligible.
    This was á reason assigned in Pickering v. Lord -Stamford, 2 Ves. jr. 585. Büt it appearing that the account had been so regularly kept, that there was no. difficulty in ascertaining the ■ personal estate of the testator, &c., relief was decreed; and a case, too, where the Master of the Rolls had said he should be glad to get rid of it.

      Time has not obscured the transactions, or only to our detriment... We are the party whom time and death have injured.
    The language in 4 Howard is; where the original transactions have become obscure, and'by time.
    The court must see thkt time has actually and in fact produced its accustomed effect, before it shall operate.
    Above all, where it is evident that no such result has followed, why should effect be given to it ?
    This case differs from most others which are reported in this, — that the defendant is the original party, with all his faculties and knowledge fresh upon him.
    Why then" should plaintiff.— the. estate of J. Q. Page — be deprived of its rights? Has he or any of the representatives been guilty of such laches as shall debar him ? Upon what ground will the court not be called into activity ?
    • The case furnishes no presumption of payment. It is not a case for presumption. The answer negatives it.
    Whatever error or fraud ever existed now exists. Whatever wrong was done remains.
    It furnishes no evidence of acquiescence. The nature of the wrong, and the mode of doing-it, so far as appellants were concerned, and proportions, three eighths, forbid almost discov-r ery. The then administrator, disposed to peace, a woman. No' means of redress then but at law;• no means of proof; no opppr-tunity for a discovery from defendant.
    It seeks to disturb no innocent person’s possessions, but is against the original wrongdoer.1 It is not against the. representatives of the original party, and who may be' supposed to be left without, the means of defence, &c., as in Mooers v. White, 6 Johns. Ch. 369. It will scarcely be urged by defendant, that, whatever errors or mistakes were committed, they did not originate in'his, representations. They could arise from no other source. Nobody else had' the means of furnishing the data. Nobody else had inducements to falsify. The answer admits that he gave all the information in his power.
    It will be said the answer denies all fraud. This is not sufficient ; 'it does not deny, but admits, the gross errors which are the result .of that fraud.'
    A denial of fraud is not sufficient nor conclusive, if the facts and circumstances are such as to lead to a different conclusion; Howard v. Camp, Walker’s Ch. Rep. 427.
    Fraud may be presumed in equity, though it must be proved at law. Lord Chesterfield v. Jannsen, 1 Atk. 352; Denton, %. ■McKenzie, 1 Desaus.'300; Warner v. Daniels, (cases cited by court,) 1 Wood. & Min. 1U3; Watkins n. Stockett, 6 Har. & Johns. 435; Boyden v. Walker, 2 ib. 292.

      But if there remains any doubt as to the fraudulent representations of defendant, wp are entitled to relief on the ground of mistake.
    The court will open a settlement- made by mistake, though receipts have passed and a .note has been given. 4 Desaus. 122,
    “ But if there has been any mistake, qr omission, or accident, or undue advantage, or., fraud, by which the account stated; is in truth vitiated, and the balance is incorrectly fixed, a court of equity will not suffer it to be conclusive upon-the parties, but will allow it to .be opened and reexamined.” 1 Story’s Eq. <§>-523.
    In. some cases the whole account will be opened, in others a more moderate remedy given. Ib. seq.
    ( And though an account be settled by arbitrators, it is not' conclusive if an error cán be shown in the account. Patterson v. Pearl,' 3 Atk. 530; 1 Mad. Ch. 101. .
    There must be. error énough upon the bill to show there is reason for it; and if plaintiff proves some of the errors, he entitles himself to a -decree. Twogood v.: Swanton, 6. Ves. 486i He may take advantage of errors in law, as well as in fact. .Roberts v. Kuffin, 2 Atk. 112.
    Mistake .is within the same rule as fraud, both as regards time and reliefs. 2 Younge & Collier, 58, cited in 2 Story’s Eq. 739, note. -
    Time does not run against the remedy fór a mistake until it be discovered. 4 J. J. Marshall,'. 77; Bertine v. Varían, 1 Edw. Ch. .343; 1 Paige, 564. See also. 1 Wood. & Min. p. 107, cases cited by Woodbury, and remarks showing what is equivalent to a fraud, — such as availing himself , of false representations of others, enjoying fruits, &c. ..
    , The relation of these parties was of a fiduciary character, whether it- were a copartnership or not, — a relation which the courts regard and watch with great scrutiny. Much in any aspect was intrusted to defendant; his control was great, his account large.
    1 Story’s Eq.1497, note: — “ A settled account between attorney. and client, or- between other persons standing in confidential relations to each other, will be opened , more readily than ahy others; and. even, -it is said, upon general allegations of error, without any errors being pointed out, when' the answer admits errors.”. ■;
    So if a partner,-whb exclusively superintends the business of the coiacern,. should, by concealment of the trqe state of the affairs, purchase ,the’share of the. other partner "for an inadequate price, the-purchase will be held void.. 1 Story’s Eq. <$. 220 Maddeford v. Austwick, 1 Sim. 89; ’Smith in re Hav,' 6 Mad.. 2; E. I. Có. v. Donald, 9 Veis. 275.

      Mr. Allen,., said, that, where a bill .calls' for a general account on the ground of fraud, it is not sufficient to make a charge. of fraud in general terms; it should be pointed out, and the point stated. 1 Story’s Eq. PI. 251.
    This court will be governed by the decisions of the State courts', where the transactions arose in the. constrpetion 'given by them to the statute of limitations. 16 Peters, 455 - 457.
    The statute applies to this case. 1 Mass.. Laws, 280, 13th February, 1787; 1 Maine Laws, 297.
    This court will not interfere after so great a lapse of time as has passed in this casé. 1 Howard, 161, 189. The decisions of the State court upon the subject are found in'3 Pickering, 212,237 - 248. '
   Mr. Justice GRIER

delivered the opinion of the court.

' A brief history of the conceded facts of this case; anterior to the filing of the amended bill, may save the trouble of a more tedious analysis of the bill and answer, with their numerous amendments, and tend to elucidate the merits of the case and the questions decided by the court.

John O. Page, the complainant’s intestate, was a merchant in Hallowell, Maine. He built and owned shares in vessels employed in trade, and had a retail shop or store, which, for some years before his death, was managed by his. brother, Rufus. K. Page. In 1810, John O. Page went to England, leaving his business chiefly in the care of bis brother, and died there, in February, 1811, intestate, leaving a widow and three minor children. Sarah Page, the widow, took out letters of administration on the estate. TSfie filed an inventory of the property, amounting to the sum. of $ 64,000, and charged herself with additional receipts of cash in the administration accounts after-wards filed, showing the whole amount of the estate to be over $ 80,000.

Rufus K. Page claimed to .have been a partner with his brother in. the store, by a parol agreement with him, whereby John should furnish the capital, and Rufus conduct the business, dividing the profits, five eighths to John and three eighths to Rufus.

" The sureties of Sarah Page in hér administration bond were Nathaniel Dummer, her father-in-law, and Thomas Bond, Esq., her brother-in-law, who also aided and'counselled her in settling the estate. In February, 1812, Chandler Robins, register of .the Probate Court, and John Agry, a respectable merchant and ship-owner, were mutually chosen by the adminis-tratrix and Rufus K. Page to settle all. accounts between the estate of John Ó. Page and Rufus K. Page. By. their settlement or award, Rufus was charged as debtor to John,—

For advanced to store, § 10,769.00
For five eighths of profit's of store, 12,934.00
Amounting in all' to . . . ... §23,703.00
From, which was deducted John’s debt to store, 7,828.00
Leaving a balance due by Rufus to the estate, § 15,875.00

After adding and subtracting various other matterá . óf account not connected with the partnership, they found the balance due. by.Rufus to the estate to be §17,190, of which §8,106 was cash, and the remainder, §9,084, consisted of . John’s share of the notes and accounts due to the store, and which Rufus retained in his hands for collection. The firsf administration account filed by Sarah Page acknówlédges the receipt in cash of the sum of §8,106 from R. K. Page, and the accounts after-wards filed show that she had received the balance of § 9,804, partly in -cash and partly in notes.

Sarah Page settled the final account of her administration on the 20th of February, 1816. She died in 1826. In 1828, •Stearns, the complainant, intermarried with Louisa, one of the daughters and heirs of John O. Page. In 1834, he took out letters of administration de bonis non on the estate of John' O. Page, for the purpose of prosecuting claims under the treaty of the United States with France. After this, he commenced an examination of the administration accounts of- Saráh Page, and began to entertain-suspicions that Rufus K. Page had taken advantage of her ignorance of accounts, and had defiauded her in his settlement. And finally, at November term, 1838, more than twenty-six years after the settlement of defendant’s account with the administratrix, this bill was filed against Rufus K. Page for a discovery and account.

The amended bill abounds in general charges of fraud against the defendant; alleges that he concealed from the administra-trix, the true state of. the affairs of the deceased, which had been intrusted to his care; that the partnership claimed by him with the deceased was a false pretence, “and that the said Sarah did not distrust, or had it not-in her power to disprove, the same ”; that the accounts exhibited of the partnership transactions wére totally false and fraudulent in their statements and aggregates, calculated and designed to deceive and mislead.

It charges, also,,. that some ten thousand dollars of private debts due by Rufus to John were intermingled with the partnership accounts so as to produce an erroneous result, and that he had sold and converted to-'his own use the' brig Emmeline, which was owned, in whole or in part, by John, and rendered no account of the same.

Afterwards, in October, 1841, by a further amendment to the bill, the'complainant admits, that, “from means of information which he now has,” there was a partnership between John and Rufus, but insists that the profits were to be divided between them in the ratio of two thirds to John and one third to Rufus.

The defendant, in his answer, after denying the general charges of fraud and mistake, asserts, that he entered into partnership, -by parol agreement, with his brother, John, in 1806; that the business of the firm was transacted in the name of Rufus K. Page ; that' John advanced the capital, and Rufus superintended and conducted the business of the store, and the profits thereof were to be divided fivd eighths to John and three eighths to Rufus; that the books of the firm were kept on these principles, and always open to the inspection of John, and frequently examined by him; that when John advanced money or goods for the use of the firm, he took -the notes of the firm; and that defendant gave notes to John for goods and money supplied, and (to use his own phrase) “ for equalizing the capital,” to the amount of over ¡$ 10,000; that immediately ■ on the announcement of the death of John O. Page, an inventory of the goods in the store was taken and placed in the hands of Bond, the attorney of Sarah Page, the administratrix; that he afterwards settled fully and fairly all accounts with the administratrix and her attorney, and produces the books, and the statement of their final settlement as made out by Robins and Agry, the referees chosen by the parties to make the- settlement and adjust- the accounts, and shows, moreover, by the administration accounts filed by said Sarah, that he had paid her the balance of over $ 17,000 found to be due b-y him according to the account thus stated.

He asserts, moreover, that John owned but one half of the-brig Emmeline, which the administratrix afterwards sold' to the defendant for the sum of $ 3,000, with which she charged herself in her administration account. And finally, the answer relies on the settlement of accounts thus made' more than twenty-five years before the filing of the bill, as a bar to all further account, especially-after so great a lapse of time, when papers are lost, witnesses dead, and transactions forgotten, and pleads the statute of limitations.

. Statutes of limitation form a part of the legislation of every government, and are necessary to the peace and repose of so.ciety. When they are addressed to courts of equity as well as to courts of law, as they seem to be in all cases of concurrent jurisdiction (as in matters of account), they are equally, obligatory on each court. In other cases, courts of equity ací lipón the analogy of limitations at law, and sometimes upon their own inherent doctrine.of discouraging, for the peace of society, antiquated demands, by refusing to interfere’ where there has been gross laches or unreasonable delay. They also interfere in many cases to prevent the bar of the statutes, where it would be inequitable, or unjust: as, for example', if a party has perpetrated a fraud which has not been discovered till the statutable bar may apply to it in law, courts of equity will "inurpose and remove the bar out of the way of the. injured party. In cases of mistake also, as well as fraud, they will not consider the-statute as running till after the discovery of the mistake, as laches cannot be imputed to the injured party till the discovery of the fraud or mistake has been made. 2 Story’s Eq. <§> -1520. ' But as lapse of time necessarily obscures the truth and destroys the evidence of past transactions, courts of chancery will exercise great caution in sustaining bills which seek to disturb them.' They will hold the complainant to stringent rules of pleading and evidence, and require him to make out a clear case.. Charges of fraud are .easily madé, and lapse of time affords no reason for relaxing the rules of evidence or treating mere suspicion, as proof. If a defendant can be compelled to open settled accounts, to explain or prove' each item, after a lapse of near thirty years, by general, allegations of fraud, — if the fraud can be proved by his inability to elucidate past transactions after so great a length of time, Or by showing some slips of recollection, or by contradicting him in some collateral facts by the-frail recolléction of other witnesses, — no man’s property, or reputation would be safe.

A complainant, seeking the aid of a court of chancery under.' such circumstances, must state in his bill distinctly the particular act of fraud, misrepresentation, or concealment, — must, specify bow, when, and in' what manner,, it was perpetrated. The charges must be definite and reasonably certain, capable of proof, and. clearly proved.' If a mistake is alleged, it must be stated with precision, and made apparent, so that the court may rectify it with' a feeling of certainty that they, are not committing another, and perhaps greáter, mistake. And especially must there be distinct averments as to the time when the fraud, mistake, concealment, or misrepresentation was discovered, and what the discovery is, so that the court may clearly, see, whether, by the exercise of ordinary diligence, the discovery might not have been before made.

Every case must, of course, depend on its own peculiar circumstances, ánd there would.be little profit in referring to the very numerous cases to be found in the books on this subject. In the case of Michoud v. Girod, 4 How. 504, lately decided in' this court, transactions were investigated after a lapse of more than twenty years; but-the facts proving the fraud were all on record, and were not disputed. The false accounts made out against- the estate of th& deceased by the executors were on file, and their iniquity was apparent on their. face. Moreover, the complainants resided in Europe, and were' kept in ignorance of their rights, and hindered from prosecuting them by the promises, threats, and fraud of the guilty parties.

In this case, the complainant seeks to open an account stated and settled -twenty-six years before the filing of his bill, and this account not rendered by the defendant to a woman unác-quainted with business, and received by her without examination, but stated from the books, by referees or arbitrators chosen for the purpose, and in the nature of an award between the parties, executed and acquiesced in by' both without complaint for a quarter of a century.

Six years is a .statute bar to an action of account, both at law and in equity. Has the complainant stated in his bill, and sustained by proof, such a case as would justify the interference of a court of equity after so'great a lapse of time?

1. Has he discovered any thing which was not as -open to discovery by himself or his predecessor in the administration, more than twenty years before ?

2. Has he shown any fraud, misrepresentation, or concealment, practised by the defendant on Sarah Page, arid made it palpable to the court,” so that it would be justified in directing the1 whole account to be opened and taken de. novo ?

3. Or has such clear mistake or omission been shown with regard to any. of the items of the account, that the court would grant liberty to the complainant to surcharge and falsify generally, or as to any particular item ?

■ In order to repel . the imputation of laches, the complainant states that he did not take out- letters of administration de bonis non on the estate of John O. Page till the year 1834, eight years, after the death of Sarah Page, the administratrix, and. six years after his marriage with one of the heirs; “ that, on examining the papers and accounts, he discovered that there was a considerable amount of property of said estate included in the inventory which had not been administered by said Sarah in her lifetime; that, in pursuing the inquiry, he gradually obtained information by various means, afforded, in the first place,, by the state of those papers, and from sundry- other sources .and conversations with persons now living or deceased, which produced the persuasion and firm belief, that -there was much of. said property in the hands, and possession" of Rufus K. Page which has not been exhibited or accounted for by him,” &c. “ but that how far the said Sarah Page was in the knowledge and possession of all the information in respect to the premises, that has come to his knowledge, he is not able to say, on account of her death before he had any reason or opportunity to ascertain the same.” It appears, therefore, that the complainant has discovered no fact of which Sarah Page was ignorant. He can specify no misrepresentation, concealment, or fraud,. practised by defendant, which has for the first time come ,to light. He does not state what property was not accounted for by Sarah Page, or how she was deceived or defrauded by Rufus.. In fact, taking the various bills and ámendments together, it' is very plain that this bill was filed on suspicion of fraud, and for the purpose of a discovery of facts from the defendant on which to found specific, charges of fraud. It is. clear, also, that these suspicions had their origin, not on the discovery of any new facts concealed from his predecessor in the administration, but from his necessary ignorance of facts of which Sarah Page and her counsel must have been fully conversánt, from the very nature and circumstances of the case.

When this bill is divested of its general and vague charges of fraud in matters óf which the complainant could have no personal knowledge, it might well be doubted whether it contains sufficient matter properly set forth to entitle the complainant to call on the defendant, after so great a length of time, to answer to its allegations and make a. discovery with regard to facts so likely to be forgotten or indistinctly remembered.

But,, waiving this point, let us examine the' specifications of fraud or mistake which some attempts have been made, to substantiate.

1. The complaint about the ship Horatio being found untenable is left out of the amended bill, and need not be*noticed. .

. 2. The bill denied that any pártnership had existed between Rufus and John O. Page; but, after taking testimony to contradict the answer in this respect, an amendment, filed in 1841, admits the partnership, but charges that the terms were different from those stated in the answer. On this point, the answer, being responsive to the bill, must be taken to be true unless disproved by two witnesses, or something equivalent. The memorandum in the handwriting of John Q. Page, ’ not being signed by Rufus or himself, and never corhmUnicated to Rufus or assented to by him, cannot be received .as evidence of ihe fact.

3. The notes of Rufus to . John for $10,000, if given, as stated in the answer, to show, the amount of capital advanced to the store by John, áre fully and properly accounted for. The referees who stated these accounts had the partnership books and the parties before them, and could best júdgé how the capital account had been kept, whether by credits in the books or giving the notes of the . firm, which would be. the notes of Rufus K. Page. The parties acquainted with the transaction had no difficulty about it, and the mere suggestion of a-stranger to the whole transaction, now made', some thirty years afterwards, that possibly these'notes were t-he private debt of Rufus,' and not given to represent the capital of the store, cannot be received as evidence of mistake or fraud. The answer being responsive to the bill, and uncontradicted by «ne evidence, is conclusive of the fact. The accounts show that Rufus accounted with the administratrix .for the goods of the store inventoried on the decease of John 0. Page, for the capital of the firm,.amounting to over $10,000, and for John’s share of the profits, exceeding $ 12,000. The complainant has wholly failed to show any mistake, omission, fraud, concealment, or misrepresentation, on the part of Rufus K. Page, in connection with the subject.

4. The interest of John O. Page in -the brig Emmeline was transferred by Sarah Page, the administratrix, to Rufus, and the amount accounted for by her in the inventory and administration accounts settled by her. Whether the money was paid to her by Rufus, as he asserts in his answer, or she made' a gift of it to him ‘ on account of the known intention of her •husband to give it to him by his will, is wholly immaterial in this base, as .the administrator de bonis non can have no concern with property administered and accounted for by his predecessor iñ the trust.

In the course of the argument, the learned counsel noticed other items of account, which they alleged to be erroneously stated or. not sufficiently explained;, but' as they were not •charged in the bill, they will not be noticed.

. The decree of the Circuit Court must therefore be affirmed, with costs..

Order.

This cause, came on to be heard on the transcript of the record from- the Circuit Court of the United. States for the District of Maine, and was argued by counsel.' Oh consideration whereof, it is now here ordered and decreed by this court, that the decree of the said Circuit Court in this cause-' be,’. and the same is hereby, affirmed, with costs..