respect to the order of the governor, that the order was to deliver the land to his father, and then he says that Damasio Salazar sent a communication to General Armijo, stating that the land had been delivered. That his father and Damasio Salazar both told him that it had been sent. "A general index of all documents of the gov ernment of Spain and Mexico up to the year 1846," contained no mention of any grant of the Ojo del Apache tract. Upon the whole, we think it extremely improbable that, if a grant had been made by the governor, no reference whatever should have been made to it by the alcalde, who. upon the theory of the petitioner, was acting inerely as the right hand of the governor in putting Trujillo into possession. The document is not in the usual form of a return to an order of a governor to put a grantee into juridical possession of the land, of which the reports and records of this court show many examples, but of an attempt by an alcalde to make a grant himself upon the petition of an applicant. But if the governor had already made the grant why should the alcalde undertake to make one, or state the reasons why in his opinion it should be made? Upon the other hand, however, an inspection of the document signed by Salazar shows no reference whatever to a grant made by the governor or any order made by the governor directing him to put the grantee in juridical possession, although in making the grant he purports to be acting "in conformity with the supreme decrees," which means nothing more than he is acting in conformity with the laws of the land. The grant certifies that Trujillo personally appeared before him, solicited the land as a farm for the support of a large family, and that he, the alcalde, "finding the petition to be a just one, and acting in conformity with the supreme He does not pretend to be acting pursuant decrees, have made him said donation in the to a decree of the governor, and makes no name of God and the supreme Mexican na- mention of a delivery of juridical *possession[256] tion, so that as a good compatriot he may by going upon the premises with the petimake good use of it," under certain conditioner, pointing out the boundaries, plucktions, and "in order that this foregoing instrument may have the force and validity by law required, the aforesaid Trujillo has requested me to interpose my authority and judicial decree, and I, the said justice, declared that I would interpose, and did interpose, as far as I am authorized by law." Not only is there no reference to a decree of the governor, but it is doubtful whether the instrument was intended as an absolute grant of the land or anything more than a usufruct, as the donation is made "so that as a good compatriot he may make use of it," the land being declared to be "commons and pasture grounds of the inhabitants of this precinct. Indeed, it is doubtful whether the reference in the petition to a grant of the govern[255]or was not an afterthought, inasmuch as in a petition made by John L. Taylor (then claimant of this tract) to the surveyor general of New Mexico, about the year 1870, the following allegation is made as to the title: "Your petitioner would further state that said grant of land was duly made according to law and the usage and customs of the laws of New Mexico on the second day of July, eighteen hundred and forty-two (1842) by one Demasio Salazar, a justice of the peace in the said county of San Miguel del Bado, to one J. C. Ventura Trujillo, a resident of said county of San Miguel del Bado." No refer ence was made in this petition to a grant by the governor. This petition having been rejected by the surveyor general, upon the ground that an alcalde had no power to make donation of vacant public lands, Taylor, in 1873, applied for a rehearing upon the ground of the newly discovered evidence of Miranda and Aragon to the effect that the governor had made such grant. The petition was again (December 19, 1872) denied, "the matter being now before Congress." ing grass, or throwing stones, taking the grantee by the hand and leading him over the lands, or of any of the formalities which, under the Spanish and Mexican customs, were observed by the officer delivering pos session. The document is such an one as the governor might have been expected to execute, but by no means such as to show that the alcalde intended to deliver juridical possession. In short, he assumed to do that which he had no right to do, and carefully omitted to do that for which he had complete legal authority. When we consider what was required to be done under the regulations for the colonization of the territories of Mexico, made November 21, 1828 (Reynolds, Span. & Mex. Law, 141), in pursuance of the act of the Mexican Congress of August 18, 1324 (Feynolds. Span. & Mex. Law, 12), and the prac tice of the officers in in connection, the failure to conform to the recognized methods of disposing of public lands becomes still more important. These regulations are stated in United States v. Cambuston, 20 How. 59, 15 L. ed. 828, and United States v. Bolton, 23 How. 341, 16 L. ed. 569, and required 1. That the governor of the territory should be empowered to grant vacant lands for the purposes of cultivation (Reg. No. 1, Reynolds, Span. & Mex. Law, 141); 2. That a petition should be addressed to the governor, describing the applicant by name, country, and profession, and, as distinctly as possible, the land requested (Reg. No. 2); 3. That the governor should proceed to obtain the necessary information with regard to the land and the petitioner, and whether there be any objection to making the grant (Reg. No. 3); 4. That, if the governor accede to the peIt further appeared and was stipulated tition, he shall make a grant, describing the that a certain index made by Antonio B. Vig-boundaries of the land, to serve as a title to il, completed in the year 1851, and entitled the party interested, and refer it to a subor dinate officer, such as an alcalde, to make delivery of juridical possession (Reg. No. 8, Hall, Mex. Law, § 511); 5. A return by such officer to the governor that he accompanied the petitioner to the [257]lands and delivered possession to *him with the usual formalities observed for the investiture of title; 6. That these papers should be placed of record in the archives of the territory, and that a copy or testimonio be delivered to the petitioner. Whether the grant of the governor required the approval of the depart mental assembly or territorial deputation, is not a question which arises in this case. (Reg. 5, 6, 7, Hall, Mex. Law, § 580, United States v. Reading, 18 How. 1, 7, 15 L. ed. 291, 294; Hornsby v. United States, 10 Wall. 224. 19 L. ed. 900; United States v. Vigil, 13 Wall. 449, 29 L. ed. 602). Not a single one of these formalities appears to have been observed, but we are left to infer from the testimony of two or three witnesses, who swore to their recollection of what took place thirty years before, that some of them were in fact observed. When we consider that this testimony is contradicted, or at least rendered exceedingly improbable, by the only document which the petitioner is now able to produce, we must admit that oral testimony of this kind forms a very uncertain basis upon which to sustain a grant of lands. As we said with respect to a somewhat similar state of facts connected with an alleged grant of land in California (Luco v. United States, 23 How. 515, 543, 16 L. ed. 545, 551): "It may be received as a general rule of decision, that no grant of land purporting to have issued from the late government of California should be received as genuine by the courts of the United States, unless it be found noted in the registers, or the expediente, or some part of it, be found on file among the archives, where other and genuine grants of the same year are found; and that, owing to the weakness of memory with regard to the dates of grants signed by them, the testimony of the late officers of that government cannot be received to supply or contradict the public records, or establish a title of which there is no trace to be found in the public archives." In the case of Peralta v. United States, 3 Wall. 434, 18 L. ed. 221, it was said that written documentary evidence, no matter how formal and complete, or how well supported by the testimony of witnesses, if coming from private hands, is insuflicient to establish a Mexican grant if there be nothing in the public records to (258) show that such evidence ever existed. But it was intimated that, if the claimant can show to the satisfaction of the court that the grant had been made in conformity to law and recorded, and that the record has been lost or destroyed, he will then be permitted to give secondary evidence of its contents. See also Fuentes v. United States, 22 How. 443, 16 L. ed. 376; United States v. Knight, 1 Black, 227, sub nom. United States v. Moorehead, 17 L. ed. 76; United States v. Vallejo, 1 Black, 541, 17 L. ed. 232. In this case, however, the same uncertainty which exists with regard to a grant having been made by the governor necessarily attends the fact as to whether it was ever recorded, and as no testimonio was ever de livered to the grantee, it must be held that the existence of the grant has not been proved. That a justice of the peace or an alcalde had no power to make a grant of public lands is evident from the character of his office, which appears to have been analogous to that of an ordinary justice of the peace (Decree of July 22, 1833, Reynolds, Span. & Mex. Law, 170, 176), and from the failure to ind any evidence in the laws of Spain or Mexico that such power existed. Indeed, such want of power is admitted by the petitioner. See Reynolds v. West, 1 Cal. 322; Crespin v. United States, 168 U. S. 208, 213, 42 L. ed. 438, 440, 18 Sup. Ct. Rep. 53. 2. In further support of his petition, the depositions of several witnesses were introduced in evidence tending to show that the tract in question had been occupied by the original grantee and those claiming under him ever since the date of the alleged grant, and, indeed, for some years previous thereto. Upon the other hand, oral evidence was introduced by the government to the effect that the land in question had never been occupied by the original grantee, but that he and his family lived at the time of his death, and for many years prior thereto, several miles distant from the land in question. While Trujillo had been upon the land in 1842, he made no improvements thereon, and after remaining a few days left the premises with the remark that the document, for which he paid $3 to Salazar, was worth more than the whole grant; also that the property at that time, and for years subsequent to the posses sion by the government of the *United States,[25 had been used as common pasturing ground for the people of the vicinity, the alleged grantee or his representatives making no claim to be the owner thereof. That it should be used for pasturage by the neighboring inhabitants is certainly consistent with the alleged grant, which de scribes the lands as "commons and pasture grounds of the inhabitants of this precinct,' and there is nothing upon the face of the grant indicating that this right of pasturage was intended to be taken away. The gran tee was apparently to be allowed to establish a farm there for the support of his family, but there is no intimation that he was to have the power to exclude the inhabitants from their customary use of such tract as commons and pasture grounds. Indeed, giving the fullest credence to his testimony, there is little or nothing to indicate that the possession of the grantee, under the alleged grant, was characterized by the notoriety, openness, and exclusive character necessary to make out a title by adverse possession. In addition to this, however, the possession did not begin until 1842, and at the date of the treaty of Guadalupe Hildalgo, in 1848. such possession had not lasted for mor● than six or seven years. In other words, the claim had not become "complete and perfect at the date of the treaty, nor one that claimant | presumed upon proof of adverse possession would have had a lawful right to make per- for twenty years, the court observing: fect had the territory not been acquired by "Nothing, it is true, can be claimed by prethe United States," within the meaning of the scription which owes its origin to, and can court of private land claims act. In Cres- only be had by, matter of record; but lapse pin v. United States, 168 U. S. 208, 42 L. of time accompanied by acts done, or other ed. 438, 18 Sup. Ct. Rep. 53, the plaintiffs circumstances, may warrant the jury in preclaimed under a grant alleged to have been suming a grant or title by record." made in 1840, by a prefect, and also by adverse possession since that time. We held, however, that the language of the act creating the court of private land claims, above quoted, "would preclude the idea that possession since the date of the treaty, however exclusive and notorious, could be regarded as an element going to make up a perfect title. There was no evidence of more than six or eight years' possession prior to the date of the treaty, and this, under any construction of the Spanish or Mexican laws, would be insufficient to constitute a title as against the sovereign." See also Bergere v. United States, 168 U. S. 66, 77, 42 L. ed. (260]383, 386, 18 Sup. Ct.Rep. 4; Hayes v. *United States, 170 J. S. 637, 649, 653, 42 L. ed. 1174, 1179, 1181. 18 Sup. Ct. Rep. 735. In this last case it is said: "As the ordinary prescription could not apply, and as the necessary time for the extraordinary prescription under the Spanish law had not run at the time of the acquisition of the territory by the United States, and as, clearly, what-grant. ever may have been the rule as to the operation of prescription against the Spanish or Mexican governments, it did not run after the treaty against the United States, it follows that the claim of prescription is without foundation." It would seem to follow from the general principle of law, so often asserted, that the statute of limitations does not run against the government, that no length of possession since the treaty of 1848 would of itself give a valid title to land. How far the long-continued possession prior to the date of the treaty would be operative against the Spanish or Mexican governments is a question which does not arise in this case, where the possession did not exceed six years. See Lindsey v. Miller, 6 Pet. 666, 8 L. ed. 538; Gibson v. Chouteau, 13 Wall. 92, 20 L. ed. 534; Webber v. Harbor Comrs. 18 Wall. 57, 70, 21 L. ed. 798, 803; Sparks v. Pierce, 115 U. S. 408, 29 L. ed. 428, 6 Sup. Ct. Rep. 102; Redfield v. Parks, 132 U. S. 239, 33 L. ed. 327, 10 Sup. Ct. Rep. 83. In United States v. De Haro, 22 How. 293, 16 L. ed. 343, there was a grant made in 1843 by Governor Alvarado, of California, and, with a possession of sixteen years thereafter, was held to be sufficient presumption of a legal grant, but there was no requirement as above stated with regard to the court of private land claims act. In United States v. Chaves, 159 U. S. 452, 40 L. ed. 215, 16 Sup. Ct. Rep. 57, there was evidence of an original grant in 1833 by the government of New Mexico, although the original records had been lost. The grant was proved by secondary evidence and a possession of sixty years thereunder, and it was held that a legal grant might be The doctrine at the foundation of that case is thus stated by Mr. Justice Story in Ricard v. Williams, 7 Wheat. 59, 109, 5 L. ed. 398, 410: "A *grant of land may as well be pre-[261] sumed as a grant of a fishery, or of common, or of a way. Presumptions of this nature are adopted from the general infirmity of hu man nature, the difficulty of preserving muniments of title, and the public policy of supporting long and uninterrupted possessions. They are founded upon the consideration that the facts are such as could not, according to the ordinary course of human affairs, occur, unless there was a transmutation of title to, or an admission of an existing adverse title in, the party in possession. They may therefore be encountered and rebutted by contrary presumptions; and can never fairly arise where all the circumstances are perfectly consistent with the nonexistence of a grant; a fortiori, they cannot arise where the claim is of such a nature as is at variance with the supposition of a In general, it is the policy of courts of law to limit the presumption of grants to periods analogous to those of the statute of limitations, in cases where the statute does not apply. But where the statute applies, it constitutes, ordinarily, a sufficient title or defense, independently of any presumption of a grant, and therefore it is not generally resorted to. But if the circumstances of the case justify it, a presumption of a grant may of But this presumption is subject to the limitation that where title is claimed from a deed which is shown to be void, it will not be presumed that there was an independent grant (Smith v. Higbee, 12 Vt. 124); or where surrounding circumstances are inconsistent with the theory of a grant. Townsend v. Downer, 32 Vt. 183. The substance of this doctrine is that lapse of time may be treated as helping out the presumption of a grant, but where a void grant is shown it affords no presumption that another valid grant was made. Nor does such presumption arise if the surrounding circumstances are incompatible with the existence of a grant. In the case under consideration we *cannot find any evidence which[262] justifies us in believing that a legal grant can have been made, and under those circumstances we cannot consider possession since the date of the treaty as dispensing with the requirement that the title, if not perfect at that time, was one which the claimant would have had a lawful right to make perfect had the territory not been acquired by the United forfeit one dollar for every sheet of the same In August, 1893, plaintiff made a photograph of the yacht "Vigilant" under full sail, and copyrighted the same under the title In the view we have taken of this case, it The judgment of the court below must therefore be affirmed. CHARLES E. BOLLES, Piff. in Err., v. OUTING COMPANY. (See S. C. Reporter's ed. 262-268.) Penalty under copyright law-forfeiture for sheets found in possession. 1. A penal statute, if ambiguous, will be con- 2. The penalty for infringement of copyright 3. A defendant who did not take out a writ of error cannot be heard to complain of any adverse rulings in the court below, on writ of error taken by the plaintiff. [No. 47.] the photograph was made by impressing at Defendant made a photogravure of this One copy of this number of The Outing was purchased of the defendant by an employee of the plaintiff for the sum of twentyfive cents. On the first trial in the circuit court the action was dismissed upon the ground that the copyright stamp on the photograph was insufficient notice of the copyright, because the year was not given in full, nor the full name of the owner. Thereupon plaintiff sued out a writ of error from the circuit court of appeals, which held that the copyright stamp was suffi cient, but sustained the trial court in its exclusion of certain evidence offered as to the number of copies found in the possession of the defendant. 45 U. S. App. 449, 77 Fed. Rep. 966, 23 C. C. A. 594, 46 L. R. A. 712. Upon the new trial the same evidence as to the number of copies of the infringement found in the possession of the defendant was excluded, and a verdict directed for plaintiff Submitted October 16, 1899. Decided De- for $1 penalty for the one copy bought by IN cember 4, 1899. plaintiff's employee from the defendant. N ERROR to the United States Circuit Plaintiff moved for a new trial because of the Court of Appeals for the Second Circuit refusal of the court to permit him to prove to review a judgment affirming the decision the number of copies which had been in the of the Circuit Court in an action for penal-defendant's possession at any time within ties for infringement of copyright. Af-two years previous to the commencement of fir med. the suit. Upon his motion being denied, he *again sued out a writ of error from the cir-[264) cuit court of appeals, which affirmed the judgment. Whereupon plaintiff sued out a writ of error from this court. See same case below, 45 U. S. App. 449, 77 Fed. Rep. 966, 23 C. C. A. 594, 46 L. R. A. 712. Statement by Mr. Justice Brown: This was an action begun April 18, 1894, by Charles E. Bolles, a resident of the city of Brooklyn, New York, for the penalty provided for the infringement of the copyright of a photograph by Rev. Stat. § 4965. This section enacts that "if any person, after the recording of the title of any map, chart, mus ical composition, print, cut, engraving, or photograph, as provided by this chapter, shall, within the time limited, and without the consent of the proprietor of the copyright first obtained in writing, signed in presence of two or more witnesses, engrave, [263]etch, work, copy, print, publish, *or import, either in whole or in part, or shall sell or expose to sale, any copy of such map or other article, as aforesaid, he shall forfeit to the proprietor all the plates on which the same shall be copied, and every sheet thereof, either copied or printed, and shall further Mr. George E. Waldo submitted the should nevertheless receive a reasonable con- United States v. Lacher, 134 U. S. 624. 33 2 Hurlst. & C. 532; Maxer. Int. Stat. 2d ed. This statute is remedial as well as penal. ed. 1123, 13 Sup. Ct. Rep. 224; Stockwell v. | United States, 13 Wall. 531, 20 L. ed. 491; Dwight v. Appleton, 1 N. Y. Legal Obs. 195; Myers v. Callaghan, 10 Biss. 139, 5 Fed. Rep. 726. This case is distinguishable from Backus v. Gould, 7 How. 798, 12 L. ed. 919, in that the only proof in the latter case was of "copies sold by defendant." There was no evidence in that case that any of the copies so sold had ever been in the defendant's possession. Mr. John R. Abney submitted the cause for defendant in error: The statute is penal and must be strictly construed. Bockus v. Gould, 7 How. 798, 12 L. ed. 919. The words "found in his possession" require proof that the copies were found in the actual possession of defendant. If the defendant has sold the copies before they are found in his possession, no action accrues to the plaintiff. Thornton v. Schreiber, 124 U. S. 620, 31 L. ed. 580, 8 Sup. Ct. Rep. 618; Backus v. Gould, 7 How. 798, 12 L. ed. 919. [264] *Mr. Justice Brown delivered the opinion of the court: Whether the court erred in excluding the evidence offered by the plaintiff tending to show the number of copies of the issue of The Outing containing a reproduction of the plaintiff's photograph, which had been printed and delivered to the defendant at any time with in two years prior to the commencement of this action, is the sole question presented by the assignments of error. This is an action to recover a penalty of $1 for every copy of the plaintiff's pliotograph, and is based upon Rev. Stat. § 4965, which declares that any person offending against its provisions "shall forfeit to the proprietor all the plates on which the same shall be copied, and every sheet thereof, either copied or printed, and shall further forfeit one dollar for every sheet of the same found in his possession, either printing, printed, copied, published, imported, or exposed for sale, one half thereof to the proprietor and the other half to the use of the United States." This is clearly a penal statute in that it fixes a single and arbitrary measure of recompense to the plaintiff, irrespective of the damages actually sus tained by him, or of the profits realized by the defendant; and in the further provision that one half of the amount recovered shall be to the use of the United States. It makes no pretense of awarding damages, and simply imposes a forfeiture of a specified sum. In this respect it differs wholly from the following section (4966) recently considered by us in Brady v. Daly, 175 U. S. 148, ante, p. 109, 20 Sup. Ct. Rep. 62, which made a person performing or representing any 265]copyrighted dramatic composition "liable for damages therefor, to be as sessed at such sum, not less than $100 for the first and $50 for every subsequent performance, as to the court shall appear to be just." There the award was of damages, and a min imum sum was fixed apparently to cover cases where it was impossible to estimate such damages; but there was no limit to the amount which might be awarded if, in the opinion of the court, it were just to increase the minimum. The idea suggested by the learned judge who delivered the opinion of the court, that, as it would be difficult to prove the exact amount of damages suffered by reason of the unlawful representation, the statute provided a minimum sum, leaving it open for a larger recovery upon proof of greater damages, has no application to the section under consideration, where the plaintiff can recover no greater nor less damages than the penalty provided by the section. The penal character of the act is further emphasized by the fact that the plaintiff apparently recovers a moiety for the use of the United States. though perhaps this is not beyond a doubt suggested in Thornton Schreiber, 124 U. S. 612, 31 L. ed. 577, 8 Sup. Ct. Rep. 618. The act of 1831, for which this act is a substitute, and of the sixth section, of which § 4965 is a substantial copy, was said by this court in Backus v. Gould, 7 How. 798, 811, 12 L. ed. 919, 924, to give a qui tam action for the sum forfeited. V. The statute, then, being penal, must be construed with such strictness as to carefully safeguard the rights of the defendant and at the same time preserve the obvious intention of the legislature. If the language be plain, it will be construed as it reads, and the words of the statute given their full meaning; if ambiguous, the court will lean more strongly in favor of the defendant than it would if the statute were remedial. In both cases it will endeavor to effect substantial justice. United States v. Hartwell, 6 Wall. 385, 18 L. ed. 830; United States v. Wiltberger, 5 Wheat. 76, 95, 5 L. ed. 37, 42; American Fur Co. v. United States, 2 Pet. 358, 7 L. ed. 450; United States v. Reese, 92 U. S. 214, 23 L. ed. 563. The language of this section when examined seems hardly susceptible of two interpretations, unless certain words which are not found there are treated as interpolated. It forfeits to the proprietor of the pirated publication all the plates on which the same shall be copied, and every sheet thereof, either copied or printed, and shall further[266] forfeit $1 for every sheet of the same found in his possession. No remedy is provided by the act, although by § 4970 a bill in equity will lie for an injuretion; but the provision for a forfeiture of the plates and of the copies seems to contemplate an action in the nature of replevin for their seizure, and in addition to the confiscation of the copies, for a recovery of $1 for every copy so seized or found in the possession of the defendant. While the forfeiture is not limited as to the number of the copies, it is limited to such as are found in, and not simply traced to, the possession of the defendant. Congress may have been perfectly willing to impose a forfeiture of $1 for every such copy, and have been reluctant to impose it upon the thousands of such copies that may have previously been put in circulation. The construction |