ELEAZER F. BACKUS, PLAINTIFF IN ERROR,

v.

WILLIAM GOULD AND DAVID BANKS, WHO SUE AS WELL FOR THE UNITED STATES AS THEMSELVES

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.