The assessments, both against the city and individuals, which constitute the debt from which the warrants are to be paid, were all in existence long prior to this amendment, and were reduced to judgments at sundry times from 1861 to 1873. It seems, however, that the city concluded to do this work itself, and applied to the legislature for authority to purchase of Van Norden his drainage plant and to undertake itself to do the drainage work. This authority was granted by the act of February 24, 1876, under which the contract was made with Van Norden to purchase the plant, and to pay therefor the sum of $300,000 in drainage warrants as a consideration for the property, and also in full settlement of all claims for damages which the canal company or Van Norden had against the city. To provide for the payment of these warrants the city agreed that the rights of the holders of such warrants should remain unimpaired, and that the drainage taxes should be administered and paid under certain conditions, and their col[144]lection assigned to an officer to be selected by Van Norden,-the city agreeing, as heretofore stated, to put no obstacle in the way of such collections.

ation of a new obligation. There can be no
question that the amendment was not de-
signed to impair the validity of a debt al-
ready legally incurred, and that if it had
attempted that, it would have been hostile to
the provision of the Federal Constitution
against impairing the obligation of a con-
tract.

*6. It is scarcely necessary to say the fact[145]
that the city chose to pay $300,000 in 1876
for property which Van Norden bought in
1872 from the ship canal company for $50,-
000, is not one which can be considered here.
The act of 1876, authorizing the purchase
and the settlement of claims against the city,
provided for the appointment of an appraiser
to estimate the value of the rights and things
to be purchased or settled for. This apprais
er was appointed and appraised the dredge
boats and machinery at $153,750, being 25
per cent less than the original cost. He an-
nounced himself as unable to come to a con-
clusion with reference to the damages
claimed. It must be borne in mind that the
consideration of $300,000 was fixed upon, not
only to cover the value of the property of the
plant, but the exclusive franchise under the
act of 1871, and the claims for damages
against the city.

We think it was the intention of the constitutional amendment to validate the issue It may be that the city made a bad barof the drainage warrants to the transferee of gain. It may be that it paid far more than the contract, not only for the work done, but the fair value of the property and claims for the property purchased by the city, in purchased. It may be that the action of the case it should elect to do the work itself. The common council was dictated by improper act of 1876 did not so much authorize an in- considerations, though this is rather hinted crease of the city's debt as a diversion of the at than asserted; but from the case of warrants to the purchase of the drainage Fletcher v. Peck, 6 Cranch, 87, 3 L. ed. 162, plant instead of a payment to the transferee to the present time we have uniformly refor work done. We think the amendment fused to inquire into the motives of legisshould receive a construction commensurate lative bodies. In this case Mr. Chief Justice with the object intended to be accomplished, namely, the drainage of the city, whether such drainage were carried out by Van Norden or by the city itself, and that it should not be limited to such warrants as were to be issued for the work. The debt for the assessments had already been incurred and put in judgment, and the amendment was intended to recognize the existence of such debt, and to provide that the warrants issued in payment of the same should not be treated as within the scope of the amendment. Beyond this, however, these warrants were to be issued, not only in payment of the drainage plant, but in settlement of Van Norden's claims against the city for damages connect ed with the failure of the city to carry out its contract with the canal company and Van Norden, which, in view of the fact that the drainage plant had been purchased by him for $50,000, may be assumed to have been the greater part of the consideration.

Marshall, speaking for the court, observed: "That corruption should find its way into the governments of our infant republics, and contaminate the very source of legislation, or that impure motives should contribute to the passage of a law, or the formation of a legislative contract, are circumstances most deeply to be deplored. How far a court of justice would, in any case, be competent, on proceedings instituted by the state itself, to vacate a contract thus formed, and to annul rights acquired under that contrast, by third persons having no notice of the improper means by which it was obtained, is a question which the court would approach with much circumspection. It may well be doubted how far the validity of a law depends upon the motives of its framers, and how far the particular inducements, operating on members of the supreme SOVereign power of a state, to the formation of a contract by that power, are examinable *in[146] Indeed, it is open to serious consideration a court of justice. If the majority whether the reservation of drainage warrants of the legislature be corrupted, it may well in the constitutional amendment of 1874 was be doubted whether it be within the province necessary, in view of the fact that the assess- of the judiciary to control their conduct; and ments had already been reduced to judgments if less than a majority act from impure moagainst the city and the property owners, tives, the principle by which judicial interand that the further issue of drainage war- ference would be regulated is not clearly rants was rather in the nature of the pay-discerned." See also Ex parte McCardle, 7 ment of a debt already incurred than the cre- Wall. 506, 514, 19 L. ed. 264, 265; Doyle ▼.

Continental Ins. Co. 94 U. S. 535, 24 L. ed. | specified in the contract. It is true, the 148; Soon Hing v. Crowley, 113 U. S. 703, 28 L. ed. 1145, 5 Sup. Ct. Rep. 730; United States v. Old Settlers, 148 U. S. 427, 466, 37 L. ed. 509, 523, 13 Sup. Ct. Rep. 650; United States v. Des Moines Nav. & R. Co. 142 U. S. 510, 543, 35 L. ed. 1099, 1108, 12 Sup. Ct. Rep. 308. This is also the law in Louisiana. Villavaso v. Barthet, 39 La. Ann. 247, 258, 1 So. 599.

7. The objection that the decree finds the city a debtor to the complainant in the amount of the warrants is more apparent than real, since it also declares that he is entitled to be paid out of the drainage assessments, refers it to a master to state an account of such assessments, and provides for an absolute decree against the city only if the fund established by the accounting shall be sufficient, and for a pro rata decree if such fund be not sufficient, to pay all the warrant holders in full.

cases of Brewster v. Wakefield, 22 How. 118, 16 L. ed. 301; Burnhisel v. Firman, 22 Wall. 170, 22 L. ed. 766; and Holden v. Savings Trust Co. 100 U. S. 72, 25 L. ed. 567.-hold that, where there is a promise to pay upon a certain day with interest at an exorbitant rate, the creditor is only entitled to interest after that time by operation of law, and not by any provision in the contract; although if the local law be different, this court will fol low it. Cromwell v. Sac County, 96 U. S. 51, 61, 24 L. ed. 681, 687; Ohio v. Frank, 103 U. S. 697, 26 L. ed. 531. These very cases, however, recognize the principle that, if the parties themselves have fixed a rate to be paid up to the time of payment, that rate will be respected. In this case both the statute and the warrants provided that such warrants shall bear interest at the rate of 8 per cent "until paid," and we are therefore of opinion that complainant is entitled to that rate from November 26, 1894, the date of

While this opinion does not cover al' the assignments of error, it disposes of all questions raised by counsel in their briefs, and our conclusion is that the decree of the Court of Appeals be modified in respect of the date from which interest is to be calculated, 148 and as so modified affirmed, with costs of this court equally divided, and that the case be remanded to the Circuit Court for the Eastern District of Louisiana, with a direction to comply with the decree of the Court of Appeals as modified.

So ordered.

Mr. Justice White and Mr. Justice Peckham did not sit in this case, and took no part in its decision.

WILLIAM A. BRADY, Piff. in Err.,

บ.

There was no error in allowing interest except as to amount. The act of 1876, author-filing the bill and issuing the subpoena. izing the city to purchase the drainage plant, declared that the consideration should be paid in drainage warrants, issued in the same form and manner as those theretofore issued under the act of 1871 for work done. | This act of 1871 provided that if there should not be sufficient funds to cash the warrants when issued, the administrator of finance was required to indorse upon them the date of presentation, after which such warrants should bear interest at the rate of 8 per cent until paid. The warrants also made this provision upon their face. But there was no presentation for payment as the statute and warrants required, and there was no waiver of such presentation. In 1876, it is true, the city abandoned the work, but the whole of complainant's case rests upon the theory that there was no repudiation of the trust, or of the obligation to do whatever was possible in the collection of the assessments. If, then, the trust continued so as to charge the city as trustee, the [147]obligation of the complainant to take *such measures as were necessary to charge the city with interest also continued. But the liability of the city to pay interest was conditioned upon the presentation of the warrants and the indorsement upon them of the date of such presentation. While refusal to indorse the date, upon a proper presentation of the warrants, would not prevent the collection of interest, there must have been a presentation, or something equivalent thereto, before interest would begin to run. If the eity had wholly denied the right of complainant, or distinctly refused to perform its obligation, or had wholly disabled itself from complying with its contract, a different question might have arisen, but the mere abandonment of the work was not sufficient to obviate the necessity of a demand. Berard v. Boagni, 30 La. Ann. 1125.

JOSEPH F. DALY and Richard Dorney, Executors, and Mary Daly, Executrix, of Augustin Daly, Deceased.

(See S. C. Reporter's ed. 148-161.) Damages for violation of copyright act— not penalty or forfeiture-conclusiveness of decree in equity.

An action at law to recover damages for Infringement of copyright under U. S. Rev. Stat. § 4966, is not one to recover either a penalty or a forfeiture, so as to make the jurisdiction of a district court of the United States exclusive, but is within the provision of U. S. Rev. Stat. § 629, subd. 9, giving to the circuit courts jurisdiction of suits at law or in equity arising under the patent or copyright laws.

2. A decree establishing the validity of a copyright, and determining that a railroad NOTE. That a right question of fact put in issue and determined in a suit cannot be dis

But the commencement of suit was a suffi-puted in a subsequent suit between the same cient demand to charge the defendant the interest from that day (Fuller v. Hubbard, 6 Cow. 13, 22, 16 Am. Dec. 423), at the rate

parties or their privies, although the second suit is for a different cause of action, see note to Southern P. R. Co. v. United States, 42 L. ed. U. S. 855.

scene in a play, apart from the dialogue. is a dramatic composition and entitled to protection under the copyright laws, is conclusive on the parties in a subsequent action at law for damages for the infringement. The complainant moved for a preliminary 8. A suit for an injunction against infringe. injunction, which was denied ment of a copyright, in which an accounting upon the of profits is asked, but in which no evidence ground that there was a material variance of profits is offered, or any decree or finding between the registered title and the pubmade concerning them, but in which a decree lished title of "Under the Gaslight," and is made for an injunction only, does not conthat therefore the complainant had not a stitute such an election of remedy as will pre-valid copyright. Daly v. Brady, 39 Fed. clude a subsequent action for the recovery of Rep. 265. After the taking of proofs on the damages for the infringement. issues joined by the defendant's answer. the[150] circuit court, following the decision of the court upon the motion for an injunction, dismissed the bill with costs. Daly v. Webster,

Decided Novem- 47 Fed. Rep. 903. An appeal was taken by
Daly from this decree to the circuit court
of appeals, where it was reversed, and the
cause remanded, with instructions to enter

On the 20th of May, 1889, Daly brought a suit in equity against the plaintiff in error herein, in the circuit court of the United The present action was commenced July States for the southern district of New 14, 1893, by Daly against Brady, the plainYork, in which he prayed that the defendant tiff in error herein, in the United States [151] might be perpetually enjoined from the fur- circuit court for the southern district of New ther performance of the play "After Dark," York, to recover damages for the violation upon the ground that the performance was of his copyright, placing their amount at an infringement of the copyright of his play $13,700. The complaint contained "Under the Gaslight," and he asked for an counts, the first making no reference_to

Mr. David Gerber argued the cause and, with Mr. A. J. Dittenhoefer, filed a brief for plaintiff in error.

4966 of the Revised Statutes, while the sec- | sued out a writ of error from this court, and
ond alleged that the defendant had infringed the case is now here for review.
his copyright in violation of the provisions
of that section, and that "by virtue of the
provisions of said act of Congress (the copy-
right act) and of said § 4966 of the Revised
Statutes of the United States the defendant
then and there became liable to pay to said
plaintiff the sum of $13,700, lawful money
of the United States, as damages."

The answer of the defendant denied the infringement and set up various defenses which are noticed in the following opinion. A jury trial was waived, and the court found the facts as above stated, and held that the copyright obtained by Daly was good and valid and covered and protected the railway scene already described; that the acts of the defendant were in disregard of the copyright and of plaintiff's exclusive rights therein.

Mr. Stephen H. Olin argued the cause and filed a brief for defendant in error. Contentions of counsel sufficiently appear in the opinion.

*Mr. Justice Peckham, after stating the[152] facts, delivered the opinion of the court:

The first objection made by the plaintiff
in error to the judgment in this case is that
the circuit court had no jurisdiction of the
action because it was brought to recover a
penalty or forfeiture under § 4966 of the
Revised Statutes, and it was contended that
the district courts of the United States have

by law exclusive jurisdiction over that class
of actions.

Whether the district courts still have ex

"Any person publicly performing or representing any dramatic composition for which a copyright has been obtained, without the consent of the proprietor thereof, or his heirs or assigns, shall be liable for damages therefor, such damages in all cases to be assessed at such sum, not less than one hundred dollars for the first, and fifty dollars for every subsequent performance, as to the court shall appear to be just."

It was also found by the court that the evi dence did not authorize an increase of the damages above the minimum amount provided for by § 4966 of the Revised Statutes, and clusive jurisdiction over an action to recover that it had no power to establish a rule of for a forfeiture or a penalty arising from a damages below the minimum amount pro- violation of the copyright act, it is not necesvided for therein, and that such section sary to *here determine, because we think that [153] should be construed as penal rather than § 4966 of the Revised Statutes, upon which remedial in its character. The only testi- this suit is founded, is not a penal statute, mony in this action on the hearing before the and therefore the action in this case is not master as to the number of representations one to recover either a penalty or a forfeiwhich the defendant Brady had given that ture, and the circuit court had jurisdiction were infringements of the plaintiff's copy of the action by virtue of § 629 of the Revised right, and upon which a judgment for dama- Statutes, subdivision 9, which grants jurisges could be based, was the evidence of the diction to the circuit courts "of all suits at defendant in the equity suit above men- law or in equity arising under the patent or tioned, and introduced before the master in copyright laws of the United States." Secthis action, and such evidence the court de-tion 4966 of the Revised Statutes reads as cided was inadmissible for that purpose, up-follows: on the ground that evidence obtained from a party by means of judicial proceedings could not be used against him for the enforcement of a penalty; and because of the absence of all legal evidence as to the number of representations the defendant was entitled to judgment, refusing any recovery for damages. [152] *Subsequently, upon application to the court, the cause was opened, and testimony, entirely independent of that of the defendant in the plaintiff's examination of him in the The act of 1856 (11 Stat. at L. 138, chap. accounting before the master in the equity 169) was the first Federal statute which suit, was presented as to the number of times conferred upon the author or proprietor of the play of "After Dark" had been produced any dramatic composition designed or suited by the defendant, with the railroad scene in for public representation, "along with the it, and upon that evidence a finding was sole right to print and publish the said commade that the plaintiff was entitled to judg-position, the sole right also to act, perform, ment against the defendant of $50 for each or represent the same, or cause it to be acted, performance falling within the period of two performed, or represented, on any stage or years prior to the commencement of the ac- which the copyright is obtained." The same public place during the whole period for tion; that is to say, for 126 performances, or act further provided that any "manager, the sum of $6,300 with costs. The court reactor, or other person acting, performing, or stricted the plaintiff's right to damages to representing the said composition, without two years, because it held that the action was brought to recover a penalty, and that the two years' statute of limitations applied. The defendant brought the case by writ of error before the circuit court of appeals for the second circuit, where the judgment was affirmed (Brady v. Daly, 51 U. S. App. 621, 83 Fed. Rep. 1007, 28 C. C. A. 253), and he then

or against the consent of the said author or proprietor, his heirs or assigns, shall be liable for damages to be sued for and recovered by action on the case or other equivalent remedy, with costs of suit in any court of the United States, such damages in all cases to be rated and assessed at such sum not less than one hundred dollars for the first, and

nifty dollars for every subsequent perform-
ance, as to the court having cognizance there-
of shall appear to be just.'

In Huntington v. Attrill, 146 U. S. 657, 36

and his recovery of that sum would be the recovery provided by the law for the wrong which he had suffered. When the evidence Section 101 of chapter 230 of the Statutes does not warrant a greater than the miniof 1870 (16 Stat. at L. 198, 214) re-enacted mum recovery, the amount named in the stat[154]the provision of the act of 1856, *giving dam-ute still constitutes the remedy provided by ages to the proprietor of any dramatic com- the law, which plaintiff can pursue. position against any person wrongfully representing the same. Then came the revision L. ed. 1123, 13 Sup. Ct. Rep. 224, there is a of the statutes, and § 4966 embodies the pro- very full discussion of the meaning of the visions contained in the above-mentioned word "penal" when used in reference to the acts of 1856 and 1870, in regard to the re- maxim of international law that "the covery of damages. courts of no country execute the penal laws of another." In the course of the opinion in that case it was stated by Mr. Justice Gray,

penal statute, as follows:

These statutes, it will be perceived, all use
the word "damages" when referring to the
wrongful production of a dramatic composi-speaking generally as to what constituted a
tion. No word of forfeiture or penalty is
to be found in them on that subject. It is
evident that in many cases it would be quite
difficult to prove the exact amount of dam-
ages which the proprietor of a copyrighted
dramatic composition suffered by reason of
its unlawful production by another, and yet
it is also evident that the statute seeks to
provide a remedy for such a wrong, and to
grant to the proprietor the right to recover
the damages which he has sustained there-
from.

The idea of the punishment of the wrongdoer is not so much suggested by the language used in the statute as is a desire to provide for the recovery by the proprietor of full compensation from the wrongdoer for the damages such proprietor has sustained from the wrongful act of the latter. In the face of the difficulty of determining the amount of such damage in all cases, the statute provides a minimum sum for a recovery in any case, leaving it open for a larger recovery upon proof of greater damage in those cases where such proof can be made. The statute itself does not speak of punishment or penalties, but refers entirely to damages suffered by the wrongful act. The person wrongfully performing or representing a dramatic composition is, in the words of the statute, "liable for damages therefor." This means all the damages that are the direct result of his wrongful act. The further provision in the statute, that those damages shall be at least a certain sum named in the statute itself, does not change the character of the statute and render it a penal instead of a remedial one. The whole recovery is given to the proprietor, and the statute does not provide for a recovery by any other person in case the proprietor himself neglects to [155]sue. It has nothing in the nature of a qui tam action about it, and we think it provides for the recovery of neither a penalty nor a forfeiture.

If, upon the trial of such an action, the court should find from the evidence that the plaintiff had, in fact, sustained a greater amount than the minimum sum of damages provided in the statute, and should direct judgment in his favor for the sum so proved, would that judgment be for a penalty? On the contrary, it would be for the actual amount of damages which the evidence showed had been sustained by the plaintiff,

"The action of an owner of property against the hundred to recover damages caused by a mob was said by Justices Willes and Buller to be 'penal against the hundred, but certainly remedial as to the sufferer,' Hyde v. Cogan, 2 Dougl. 699, 705, 706. A statute giving the right to recover back money lost at gaming, and, if the loser does not sue within a certain time, authorizing a qui tam action to be brought by any other person for threefold the amount, has been held to be remedial as to the loser, though penal as regards the suit by a common informer. Bones v. Booth, 2 W. Bl. 1226; Brandon v. Pate, H. Bl. 308; Grace v. M'Elroy, 1 Allen, 563; Read v. Stewart, 129 Mass. 407, 410; Cole v. Groves, 134 Mass. 471. As said by Mr. Justice Ashhurst in the King's bench, and repeated by Mr. Justice Wilde in the supreme judicial court of Massachusetts, it has been held, in many instances, that where a statute gives accumulative damages to the party grieved, it is not a penal action.' Woodgate v. *Knatchbull, 2 T. R.[156] 148, 154; Read v. Chelmsford, 16 Pick. 128, 132. Thus, a statute giving to a tenant ousted without notice double the yearly value of the premises against the landlord, has been held to be 'not like a penal law where a punishment is imposed for a crime,' but rather as a remedial than a penal law,' because the act, indeed, does give a penalty, but it is to the party grieved.' Lake v. Smith, 1 Bos. & P. N. R. 174. 179, 180, 181; Wilkinson v. Colley, 5 Burr. 2694, 2698. So in an action given by statute to a traveler injured through a defect in a highway, for double damages against the town, it was held unnecessary to aver that the facts constituted an offense, or to conclude against the form of the statute, because, as Chief Justice Shaw said: "The action is purely remedial, and has none of the characteristics of a penal prosecution. All damages for neglect or breach of duty operate to a certain extent as punishment; but the distinction is that it is prosecuted for the purpose of punishment, and to deter others from offending in like manner. Here the plaintiff sets out the liability of the town to repair, and an injury to himself from a failure to perform that duty. The law gives him enhanced damages; but still they are recoverable to his own use, and in form and substance the