ous, in our opinion point to no error. Without APPEAL from the Circuit Court of the United vania. States for the Eastern District of Pennsyl The appellants were the complainants below, where the case arose. The facts of the case are fully stated in the opinion. Messrs. J. Van Santvoord, Francis Forbes, George Gifford and J. J. Coombs, for appellants. Mr. Joshua Pusey, for appellee. Mr. Chief Justice Waite delivered the opinion of the court: going through in detail the statute under which the village was organized and the powers conferred upon it, it is enough to say that it had ample authority to keep the streets and walks in a safe condition at all times for passage. And the power carried with it the duty of exercising it. Nothing could have been a more palpable violation of that duty than permitting the continuance of such a trap as that into which the plaintiff below fell. And this duty was not suspended during the changes from a township to a village organization. The identity of the Ĉorporation was not destroyed by the change, and its obligations in regard to the streets, avenues, The complainants are the owners of a copysidewalks, drains, etc., continued in full force. right of a series of maps of the City of New The fact that the Board of Trustees of the Vil York, prepared for the use of those engaged in lage were not authorized to make their annual the business of fire insurance, the title of which appropriation for the year in which the plaint is as follows: "Maps of the City of New York, iff's injury occurred, if it was a fact, and that surveyed under the direction of insurance comthey, as well as every department and officer of panies of said city, by William Perris, civil enthe Corporation, were prohibited by law from gineer and surveyor, 1852. Volume 1, comprisadding to the corporate expenditures in any one ing the 1st, 2d, 3d and 4th wards. The maps exyear anything above the amount provided for hibit each lot and building, and the classes as in the annual appropriation bill for that year, shown by the different coloring and characters is quite immaterial. The power to borrow mon- set forth in the reference." The maps were made ey sufficient to provide for making any im- after a careful survey and examination of the provements, the necessity for which was caused lots and buildings in the enumerated wards of by any casualty or accident happening after the the city, and were so marked with arbitrary colannual appropriation, was expressly given. Be-oring and signs, explained by a reference or key, sides, the Village succeeded to all the property and funds of the township, as well as to its liabilities. It was organized in October, 1872, and the accident to the plaintiff occurred on the 22d of April, 1873, six months afterwards. We see no error in the instruction given to the jury respecting contributory negligence of the plaintiff. It was full, all the case demanded, and strictly accurate. Sentences may, it is true, be extracted from the charge, which if read apart from their connection, need qualification. But the qualifications were given in the context, and the jury could not possibly have been misled. Upon the whole, we think the case was submitted in a manner of which there is no just cause of complaint. The judgment is affirmed. (See S. C., 9 Otto, 674–676.) Copyright of a map. 1. A copyright gives the author or the publisher the exclusive right of multiplying copies of what he has written or printed. To infringe this right, a substantial copy must be produced. that an insurer could see at a glance what were the general characteristics of the different buildings within the territory delineated, and many other details of construction and occupancy necessary for his information when taking risks. They are useful contrivances for the dispatch of business, but of no value whatever except in connection with the identical property they purport to describe. The defendant made the necessary examination and survey, and published a similar series of maps for Philadelphia. At first he used substantially the same system of coloring and signs and, consequently, substantially the same key that had been adopted by the complainants, but afterwards he changed his signs somewhat, and, of course, changed his key. The question we are to consider is, whether the publication of the defendant infringes the copyright of the complainants, and we think it does not. A copyright gives the author or the publisher the exclusive right of multiplying copies of what he has written or printed. It follows that to infringe this right a substantial copy must be produced. It needs no argument either in whole or in part, of those of the comto show that the defendant's maps are not copies, plainants. They are arranged substantially on the same plan, but those of the defendant represent Philadelphia, while those of the complainants represent New York. They are not only not copies of each other, but they do not convey the same information. The complainants have no more an exclusive right to use the form of the characters they employ to express their ideas upon the face of the map, than they have to use the form of type they select to print the key. Scarcely any map 2. A copyright of a map does not give the pub-is published on which certain arbitrary signs, lisher an exclusive right to the use upon other maps of the particular signs and key which he saw Argued Dec. 17, 18, 1878. Decided Feb. 3, 1879. explained by a key printed at some convenient place for reference, are not used to designate objects of special interest, such as rivers, railroads, boundaries, cities, towns, etc.; and yet we think it has never been supposed that a simple copyright of the map gave the publisher an exclusive right to the use upon other maps of the particular signs and key which he saw fit to adopt for the purposes of his delineations. That, however, is what the complainants seek to accomplish in this case. The defendant has not copied their maps. All he has done at any time has been to use to some extent their system of arbitrary signs and their key. The decree of the Circuit Court is affirmed. appeal, we are clearly of the opinion that Dr. Taylor did not "Continue in service until the end of the war," within the meaning of the Resolutions of Congress of October 21, 1780, and of March 22, 1783, under which the claim in this case is made. When he accepted his appointment in the regiment of guards, January 9, 1779, he ceased to be a supernumerary surgeon's mate and became an active officer in the new regiment. Consequently, when that regiment was discharged because its term of enlistment had expired, he was out of service. When the new regiment was raised, the Governor and Council of Virginia were authorized by Congress to appoint its officers out of those in the Virginia it is said in one of the additional findings, that line who were then supernumerary. Although Dr. Taylor was assigned to active duty, this is to be construed in connection with the Resolution to which reference is made; and that being done, it is apparent there was no intention by that language to modify the previous finding that "He was appointed surgeon's mate of the regiment of guards authorized by the Resolution of January 9,1779, of the Continental Congress." By the Resolution, Congress permitted the supernumerary officers in the line to accept 2. An acceptance of an appointment in the new regiment of guards, authorized by the Resolution appointments in the new regiment. Such an of Jan. 9, 1799, of the Continental Congress, took acceptance took them out of their former posisupernumerary officers out of their former position in the line and put them into the new organization. JOHN G. WILLIAMS, Admr. de bonis non, of the Estate of CHARLES TAYLOR, Deceased, Piff. in Err., v. UNITED STATES. Surgeon in Continental Army-claim for pay. 1. A surgeon in the Continental Army, who did not continue in service until the end of the war, is not entitled to five years' pay, under the Resolutions of Congress of Oct. 21, 1780, and March 22, 1783. tion in the line. [No. 1058.] The judgment of the Court of Claims is af Submitted Jan. 24, 1879. Decided Feb. 3, 1879. firmed. APPEAL from the Court of Claims. The appellant's intestate filed his petition in the Court of Claims, claiming compensation M. WOLF, ELIAS LOWENSTEIN, ET AL., for services in the Continental Army. Appts., V. LOUIS STIX ET AL., as LOUIS STIX & Co. (See S. C., 9 Otto, 1-10) Fraud, under Bankrupt Law-positive fraudbond in replevin-effect of discharge of principal-of surety. 1. Fraud, as used in the section of the Bankrupt Law, which provides that" no debt created by fraud * * *shall be discharged in bankruptcy," means: positive fraud or fraud in fact, involving moral turpitude or intentional wrong. The facts found are, in substance, that in 1776, Dr. Taylor, the appellant's intestate, was surgeon's mate in the Second Virginia Regiment, in the Continental service, and that upon the reduction and consolidation of the regiments of that State, in 1778, he became a supernumerary. While he continued as supernumerary, he was appointed surgeon's mate in the temporary regiment of guards authorized by the Resolution of Congress of January 9, 1779, and he accepted the same and afterwards was promoted to be surgeon in the same regiment, and so continued, receiving pay, etc., until it was discharged, June 13, 1781. It also appears that the State of Virginia has recognized Dr. Tay-plies from the purchase of property from a debtor, lor as having been a supernumerary surgeon of the Continental Line of that State until the end of the war, by granting his heirs bounty landwarrants, and that he died after Jan. 4, 1821. The question is whether, under the above state of facts, Dr. Taylor continued in service to the end of the war, within the meaning of the Resolutions of the Continental Congress of Oct. 21, 1780, and Mar.22,1783, granting five years' pay, 2. It does not include such fraud as the law im with the intent thereby to hinder and delay his creditors in the collection of their debts. 3. A debt not created by the purchase of goods, but by a bond given in a replevin suit to pay their value if the party failed to sustain his title, is not created by fraud, but is a contingent debt provable under the Bankrupt Act. 4. As the debt was not created by fraud and was provable under the Act, the obligor's discharge released him from his liability on the bond. 5. Although the principal in such bond is discharged from liability thereon by his discharge in bankruptcy, such discharge does not discharge the surety on the bond. [No. 810.] Submitted Jan. 13, 1879. Decided Mar. 3, 1879. APPEAL from the Circuit Court of the Unitnessee. ed States for the Western District of TenThe case fully appears in the opinion of the court. Messrs. Henry Craft, Fillmore Beall and W. M. Randolph, for appellants: Unless Mr. Wolf can, in this proceeding, plead | bond, as did section 32 of the original Act, of his discharge in bankruptcy, it is evident that the discharge and defines its extent. The dishe cannot do so at all. The decree of the Chan- charge which Wolf pleads follows this form. It cery Court was in his favor, and was prior in must operate a release from liability upon the date to the filing of his petition in bankruptcy. replevin bond, if that liability was a debt or The date of this decree was Dec. 13, 1872. The claim provable against his estate, and was not a petition was filed Jan. 5, 1874. The complain- debt excepted from the operation of a discharge ants in the chancery suit prosecuted an appeal in bankruptcy. to the Supreme Court of the State, and not until Apr. 28, 1877, was the cause heard in that court. Wolf's discharge was granted Mar. 28, 1874, pending the appeal. For reasons shown in the record, he did not attempt to plead his discharge in the Supreme Court until after the decree of that court had been rendered. If he had attempted to plead it in that court at an earlier day, he would not have been allowed to do so, because it is the settled practice of that court not to receive such a plea. Ward v. Tunstall, 2 Baxt. (Tenn.), 319. In the case just cited, the Supreme Court of Tennessee declares in effect, that a discharge granted pending an appeal to that court, can only be pleaded in Tennessee, in the mode which is here adopted. If the discharge can be made available to protect Wolf from liability on the replevin bond, it will be conceded that it will be equally available to protect the complainants, Lowenstein and Helman, as the sureties in that bond. Section 5118, Revised Statutes, does not apply in such a case. Without doubt, it has been correctly said: "A careful perusal of this section will show that it only applies to a surety who contracted to become liable for the payment of the debt, and not for the payment of the judgment which might be entered in a particular action. It clearly contemplates a case where the surety contracts to become liable with the principal for the payment of the debt. Where a discharge is pleaded in the appellate court, so that no judgment can be rendered against the defendant, a surety on an appeal bond, conditioned to pay such judgment as might be entered in the appellate court, is released. As no judgment was rendered against his principal, no liability attaches to him. Odell v. Wootten, 4 Bk. Reg., 183; S. C., 38 Ga., 225. This clause applies to persons who are liable for the debt of the bankrupt, which existed before and is discharged by the proceedings in bankruptcy. A bond given to dissolve an attachment is not such a debt. It does not become of the nature of the debt until the contingency arises, upon which it is to be made operative, to wit: a judgment valid against the principal and which he is bound to pay. When a judgment is rendered for the defendant upon a plea of a discharge in bankruptcy, the bond is discharged; not by the proceedings in bankruptcy but by the determination of the contingency upon which the obligation of the bond is made to depend." Carpenter v. Turrell, 100 Mass., 450. Such is also the ruling of the Supreme Court of Tennessee. Martin v. Kilbourn, 1 Cent., L. J. 94. And of many other courts. Payne v. Able, 4 Bk. Reg., 220; S. C., 7 Bush., 344. Then does the discharge operate to release Wolf from liability upon the replevin bond? Section 5115, Revised Statutes, prescribes the "Debts But it is insisted that the liability of Wolf upon this bond, even if provable, is "excepted from the operation of a discharge in bankruptcy," under section 5117 Rev. Stat., old sec. 33, because, it is insisted, that it is a "debt created by fraud, etc., of the bankrupt," and claims are mentioned in section 5115 as provable, and as affected by the discharge, but the excepting clause is only as to debts, both in section 5115 and 5117. The effort has been made herein, to show that M. Wolf, the bankrupt, did not owe Louis Stix and Co. any debt, either created by fraud or otherwise. They charged him with a fraudulent holding of their debtor's property, and attached that property in his hands. His bond dissolved that attachment, and constituted a contract between them and him as aforesaid. In U. S. v. Rob Roy, 1 Woods, 42, Bradley, Circuit Judge, said: "Now, the appearance of the claimant in court, and his bonding the property, are the transactions on which the present claim is based. They cannot be regarded as fraudulent. Every person is entitled to come into courts, and prosecute and defend his suits in the ordinary way." The fraud contemplated by the Statute is actual, not constructive nor implied. Neal v. Clark, 95 U. S., 704 (XXIV., 586). The liability of Wolf to Louis Stix & Co., if any, does not grow in any way, was not created, by Wolf's fraudulent purchase of the goods attached. They were attached and in the custody of the law, notwithstanding that fraud, just as fully as if they had been found in possession of Marks, Pump & Co. Under the authority and with the sanction of law, Wolf received these goods back; took them to his own use, upon a contract made with Louis Stix & Co. The debt, if it can be called a debt, was created by their contract. “If the record shows that the debt was created by contract, the plaintiff cannot, when a discharge is pleaded in bar to a judgment, be allowed to show that the debt sought to be collected was created by fraud." Palmer v. Preston, 45 Vt., 154; Shuman v. Strauss, 10 Bk. Reg., 300; S. C., 52 N. Y., 404; Brown v. Broach, 52 Miss.,536; Fowles v. Tread well, 24 Me., 377; Jones v. Knox, 46 Ala., 53. Under the other head of "excepted debts," in section 5117, viz.: "fiduciary," it has been held: "If the guardian gives his note under seal to the ward's husband, in settlement of his account, and receives a release from them, he is not liable thereon in a fiduciary capacity." Coleman v. Davies, 45 Ga., 489. Messrs. Gantt & Patterson and Josiah Patterson, for appellees: Is M. Wolf discharged? His liability originated in fraud, in fact. This conclusively appears from the allegations and charges of the original and amended bills, and the decree of the Supreme Court of the State, which adjudges the liability of said Wolf. The inquiry, then, is: does the discharge in WOLF V. STIX. ase the bankrupt from such a 1-10 On the 8th of December, 1866, Louis Stix & law was to relieve the honeless insolvency; but it was ve those who were guilty ir intentional wrong. bas., 709 (XXIV., 587). tive in the above case, were Bual was guilty only of nates tut intentional wrong. his sureties, must be of fraud at case, as remain By the Code of Tennessee, sec. 3509, "The law is just olf's discharge in defendant to an attachment suit may always back to the as guilty of posi had its origin ng with good security, payable to the plaintiff, in Robinson, 6 Blatcase of the taint or, at defendant's option, in double the value Sampson v. section 33 of the Bankru' the debt, interest and costs, or the value of the I will go back to the origReg., 108; recovery by the plaintiff, against the defendant be satisfied by delivery of the property or its Bump, Bankruptcy, 10th ey. sarily, against it. See, also, further, in this conn.. Wolf moved the court to ascertain the value of the value ascertained to be $10,000; and on the v. Emerson, 52 N. H. 301; Horntokes Lowenstein and Helman, as his sureties, filed in 78 Ill., 207; Warner v. Croni261. the cause their bond, a copy of which is as follows: Reg., 52; Broadnax v. Bradford, 56es enstein and Leon Helman, as sureties, hereby It is a cherished doctrine of the 1 rt bind ourselves unto Louis Stix & Co. in the to let one thus offending escape under the wrong he has done. He shall take n The condition of the above bond is that, trustee for the injured party, if necessary. ery Court at Memphis, in favor of said Louis fit from his wrong. He will be treated whereas, in the suit now pending in the Chanv. Smith 2 Mas., 252; Strike v. Mc Donald d in which said Wolf is joined as a defendBump, Fraudulent Conveyances, 588; Betix & Co. and against Marks, Pump & Co., Har, and G. (Md), 191; Townshend v. Duncan an attachment has been issued against said 2 Bland, 56;2 Whart., Ev., sec., 1038 and notes. innd costs, and has been levied upon a does it follow that the sureties are also released? this bond Marks, Pump & Co., which were Assuming that Wolf's discharge releases him, and aroods and other property as the propAll the conditions have happened, upon replevying sa of said M. Wolf, and were which the liability of the sureties depends: 1. Said Wolf has been cast in the suit. terest, as the court has ordered and directed. Pump & Co. for $18,699.54, besides erty attached, him as his property; and y him for the purpose of 1-10 orser, suremerous in correctly, her to pay 1 a specid by the by the parties, of f goods and other prop2. He has failed to pay the $10,000 and in- ($10,000) dollars. Nowgether, as it is agreed Wolf shall be cast in said suit, and saЯaid M. 3. The goods and other property have been of goods and other property shall be foun tock found and decreed, subject to the attachment and liable thereunder to the satisfaction of the debts of complainants, Louis Stix & Co., against Marks, Pump & Co. Suppose Wolf's discharge is effectual as to him, does it relieve the goods? His release does not settle that they are not still liable. The attachment created a specific lien upon the goods for complainant's benefit. The bond stands for the goods. If the goods had not been replevied, the discharge of Wolf, if effectual to work his release, would not have set the goods at liberty. Mr. Chief Justice Waite delivered the opinion of the court: of ten thousand and decreed by the court to have been subject to said attachment, and liable thereunder to the satisfaction of the debts of complainants against Marks, Pump & Co., then and in that event, should said Wolf pay to complainants, as the court may order and direct, the said sum of $10,000, the value of said stock of goods and other property, with interest thereon from this date, this bond shall be void, otherwise to remain in full force and effect. Witness our hands and seals this- e obligaed. The ot hapty was ations its to d the > dis ainst d in had his of ce, he he is 1-10 SUPREME COURT OF THE UNITED STATES. and, for the West The property attached was thereupon sur- | cuit Court of the United Statele answer of Stix rendered to Wolf. All the members of the ern District of Tennessee. The material facts firm of Marks, Pump & Co. were afterwards & Co. does not deny any of ap as a defense: discharged in bankruptcy, and in due time, by alleged in the bill, but sets Wolf does not releave of the court, they severally filed formal 1. That the discharge of upon the decree of pleas setting up their respective discharges. lease him from his liabilitecause the decree is Wolf put in his answer, claiming title to the the Supreme Court, beated by fraud; goods and denying all fraud. Testimony was founded upon a debt crischarged, his co-comtaken; and on the 13th December, 1872, after 2. That if Wolf is upon his bond, are not; hearing, the Chancery Court found and de- plainants, the sureties creed that there was no fraud in the sale to lants have been guilty of Wolf, and dismissed the suit as to him. As 3. That the appelut them off from relief in a Marks, Pump & Co. had been discharged in such laches as to c bankruptcy, it was also dismissed as to them. From this decree Stix & Co. appealed to the Supreme Court on the 21st of March, 1873. On the 28th of March 1874, Wolf obtained a discharge under the bankrupt law. On the 28th of April, 1877, the Supreme Court, upon hearing, reversed the decree of the Chancery Court, and, after finding the amount due from Marks, Pump, & Co., and ordering a recovery, concluded as follows: court of equity. rt dismissed the bill, and from The circuit covat effect this appeal has been a decree to th taken. hay be considered as supplementThis cause of Wolf v. Stix, 96 U. S., 541 ary to that. It is in fact the suit in chancery [XXIV., 640 the opinion in that case as furnishreferred to irblainants an appropriate remedy for ing the compfheir rights growing out of the disenforcing t Wolf in bankruptcy during the pendcharge of original cause on appeal in the Suency of theirt, and before the final judgment as preme Cou in that court. In addition to the case rendered son v. Reaves, cited in the argument of of Ander case, we are now referred to Ward v. the other, 58 Tenn. (2 Bax.), 319; Riggs v. White, Tunstal. (Tenn.), 503; and Longley v. Swayne, 4 4 Heisk (Tenn.), 506, n., as establishing the same Heisk. ce. In Ward v. Tunstall the rule is thus practi: "On the record when presented, to stated h we can alone look, in our view of the case, whicdgment can be rendered, and then if the a justor desires to be relieved he will find no difdel ulty in being protected from payment of imfic roper judgments in the bankrupt court, or by plán original proceeding in the state court, where he can make such issues as will raise the question, and as he is precluded from interposing his defense arising out of his bankruptcy, the judg ment will not interfere with his case in any way. But it is unnecessary to pursue this branch of the case further, as we do not understand that the position assumed by the appellants is dis "And this court being of opinion, as before recited, that said sale was fraudulent and void, and that said stock of goods, fixtures, etc., so attached and replevied, were subject to said attachment, and liable for complainants' said debt. And it further appearing from simple calculation that said sum of $10,000, with in terest from the date of said bond, December 24, 1866, to the present time, amounts to the sum of $16,200: it is, therefore, further ordered, adjudged, and decreed by the court, that said fraudulent sale be and is hereby set aside, and for naught held, as to complainants' said debts herein against defendants Marks, Pump & Co., and that the complainants Louis Stix & Co. in their own right, and also for the use of Rinskoff Bros. & Co., do have and recover of and from the defendant M. Wolf, and Elias Lowenstein and L. Helman, his sureties on the 5, aforesaid replevin bond, the said sum of $16,200erthe value of the property replevied, and int ftion est thereon to this date, for which execum the may issue. And it further appearing fres, Pump record that the said defendants, Mark complain-puted. & Co., have been since the filing ofcy, no execuants' bill discharged in bankruptor complainants' tion is awarded against them frost of this cause, recoveries herein; and the be paid out of the and the court below, will, against defendant, M. said recovery of $16,209aid sureties on replevin Wolf, and his af bond." me 3d day of May, 1877, after this deOn was rendered, Wolf and his sureties petitioned the court for leave to come in and plead in that court the discharge of Wolf in bankruptcy; but this was denied, as no new defense could be made in that court, and it was not al lowable to set up the defense of bankruptcy by any proceedings there for that purpose. On the 26th of May, 1977, these appellants filed this bill in the Chancery Court of Shelby County, setting forth the facts substantially as above stated, and praying that the judgment or decree of the Supreme Court might be decreed to be satisfied, and of no force and effect by reason of the discharge of Wolf in bankruptcy, and that Stix & Co. might be enjoined from enforcing the collection. The case was afterwards removed to the Cir The two questions which have alone been argued here in behalf of the appellees are: 1. Whether the liability of Wolf was one created by fraud, within the meaning of sec. 5117, R. S., which provides that "No debt created by fraud *shall be discharged in bankruptcy." And, * * 2. Whether if Wolf was discharged his sureties were also. 1. As to Wolf. In Neal v. Clark, 95 U. S., 704 [XXIV.,586], it was decided that "fraud," as used in this section of the Bankrupt Law, "means positive fraud or fraud in fact, involving moral turpitude or intentional wrong, as does embezzle. ment; and not implied fraud or fraud in law, which may exist without imputation of bad With this definition we faith or immorality." are content. It is founded both on reason and authority. Clearly it does not include such fraud as the law implies from the purchase of property from a debtor with the intent thereby to hinder and delay his creditors in the collection of their debts. But if it did, such a purchase does not create a debt from the purchaser 99 U.S. |