Drury v. Ewing. two boats might find it necessary to resort to different lines of defense in resisting the claim of the libellant, and to rely on different evidence for this purpose. The interests of each boat might therefore be brought into direct conflict and confusion, and inconvenience arise, not only in the final hearing, but in the preparation of the case for trial. There certainly is no necessity for this, as it is the undoubted right of the libellant to proceed in a separate action against each of the boats. To avoid any injury that might possibly result from such a course, it would perhaps be the duty of the court in the exercise of its discretion, to see that no decree should be entered in either case, until both should be heard. Thus, if the libellant by his evidence shall prove a case of fault and consequent liability, as to one or both the boats charged with fault, damages may be decreed on such principles as shall meet the justice of the case. If the libellant, by amendment, can allege a state of facts showing such concert and privity between the two steamboats, as will create a joint liability, within the principles stated by the court, he can have permission to do so; otherwise, the libel must be dismissed, and the proceeding commenced de novo. (CIRCUIT COURT.) JONAS DRURY AND LAVINIA DRURY, HIS WIFE, v. JOHN EWING AND SARAH C. EWING, HIS WIFE, ET AL. On a motion for an attachment for a contempt in violating an injunction, the original decree can not be impeached, except for fraud, or defect of jurisdiction in the court, as to the subject matter of the suit. The chart copyrighted to the complainant's wife, as published on a single sheet, containing diagrams representing a system of taking measures for, and cutting ladies' dresses, with instructions for its practical use, is a book within the meaning of the first section of the act of Congress of February 3, 1831, and is entitled to the protection of the statute. In deciding whether a publication is an infringement of one for which a Drury v. Ewing. previous copyright had been obtained, the true inquiry is, whether the work alleged to be a piracy is substantially the same as that copyrighted; and mere colorable variations intended to evade liability for an infringement, will not destroy the legal identity of the two. If a material part of the copyrighted publication is used, though the alleged piratical work may be in some respects an improvement, it is still an infringement of the exclusive right of the author. The substantial identity of the system of the defendant's wife with that copyrighted by the complainant being established by the evidence, the former is adjudged guilty of a violation of the injunction in using and selling her guide, and is ordered to surrender all the copies in her possession or within her control, as also the plate on which it is printed, to the clerk of this court, within twenty days, and to pay the costs of this proceeding. Lincoln, Smith & Warnock, for complainants. A. J. Pruden, for defendants. OPINION OF THE COURT: The bill in this case was filed June 28, 1860. The complainants aver that the said Lavinia Drury is the "authoress and proprietress" of a chart entitled," The ladies' chart for cutting dresses and basques for ladies, and coats, jackets, etc., for boys," a copy of which was duly deposited in the office of the clerk of the District Court of the United States for the Southern District of Ohio, April 25, 1859, by which the exclusive right of publishing, using, and vending the same was secured to her, by the act of Congress on that subject, for the period of twenty-eight years. The bill further alleges that the said Sarah C. Ewing, in conjunction with her husband and others, has caused to be published and sold a large number of said charts, and was then publishing and selling the same, without any license or authority from the said Jonas and Lavinia Drury, and in violation of their rights and greatly to their injury. The bill prays for an injunction to restrain the defendants from any further publication of said charts, and for other relief. A provisional injunction in accordance with the prayer of the bill was ordered July 2, 1860. Drury v. Ewing. The answer of Ewing and wife was filed September 3, 1860. The answer admits, in substance, the sale of Mrs. Drury's charts, but alleges they were sold or used under an ärrangement between the parties, by which Mrs. Ewing was constituted the agent of Mrs. Drury, and as such was authorized to vend and use the charts. And the defendants deny that they have in any way infringed the exclusive right of the complainants by such sale and use. The case came on for hearing on the bill, answer, exhibits, and proofs, January 21, 1861, and resulted in a decree for the complainants, and the award of a perpetual injunction against the defendants. On May 10, 1862, upon a proper showing by the complainants, a rule was entered against Ewing and wife, requiring them to show cause why they should not be attached as for a contempt in violating the injunction. This rule was duly served, and the defendants, Ewing and wife, appeared and in response thereto filed an answer denying that they had violated the injunction, or had intentionally disregarded the order of the court, and praying to be discharged from the rule. In the progress of the investigation growing out of the motion for an attachment, it was made to appear that in September, 1860, Ewing and wife had deposited, in the office of the clerk of the District Court of the United States for the Eastern District of Missouri, a copy of what is described as "the ladies' guide " for taking the measures and cutting garments for females, of which Mrs. Ewing claimed to be the authoress or inventress, and for which she had thus secured a valid copyright. It was also proved on such hearing, and not controverted by the defendants, that Mrs. Ewing had printed a large edition of her guide, and that she had sold many copies of the same after the service of the injunction upon the defendants. In resisting the application for an attachment, it was assumed by the counsel of the Ewings, that the guide which they had copyrighted in Missouri was substantially different from Mrs. Drury's, and that the use Drury v. Ewing. and sale of them did not therefore involve a violation of the injunction or any infringement of her rights. This posture of the application for an attachment presented the question of the identity of Mrs. Drury's chart and Mrs. Ewing's guide And, upon this issue, a great mass of testimony has been taken by these parties, and, after a protracted hearing and very elaborate arguments, the question has been submitted for the action of the court. In this connection, it should be stated, that in addition to the issue of identity if the court should adjudge it to be established by the testimony, it is strenuously urged by counsel that the motion for an attachment can not be entertained, and the Ewings held to be guilty of a contempt, for the reason that the copyright of Mrs. Drury is a nullity as not being a legitimate subject of a copyright within the scope and intention of the act of Congress. This point first claims the attention of the court. And in relation to it, it is obvious to remark, that whatever ground there may have been for contesting the validity of the copyright on the hearing of the original case, it is now too late to do so. The defendants are clearly concluded by the admissions of their answer, and by the facts adjudged true by the decree of the court, and which could properly have been contested at the hearing on the merits. The bill, as before noticed, contains the distinct averment that Mrs. Drury is the authoress and proprietress of the chart copyrighted to her, and that the exclusive right to publish, use, and vend the same vested in her. These allegations are not controverted or put in issue by the answer. They are, at least by the strongest implication, admitted to be true. The answer does not allege the invalidity of Mrs. Drury's copyright, either on the ground that it is not within the act of Congress, or that it was not her original invention. Indeed, these points are conceded in the answer, as in that, the Ewings rest their vindication of the sales of the charts up to that time, on the ground that Mrs. Ewing was the agent of Mrs. Drury. This is wholly inconsistent with the Drury v. Ewing. position now taken, that her copyrighted charter is a nullity in law. This point not having been brought to the notice of the court at the hearing, it was clearly not its duty, sua sponte, to pass upon it, even if there had been doubts as to the validity of the copyright. The court therefore found the facts alleged in the bill to be sufficiently verified, and entered a decree to that effect. The decree assumes that Mrs. Drury's copyright was valid, and that she was entitled to protection against its infringement. It also finds that the defendants had so violated that right as to justify an order for an injunction, and the award of damages in favor of the complainants in accordance with the statute. In this state of the case no proposition can be clearer than that the defendants, upon the pending motion, can not impeach the decree thus entered. Several entire terms of the court have intervened since its entry, and it would be an unheard of exercise of jurisdiction, in this collateral way, to revise and reverse it. No court will do this in a proceeding looking only to the enforcement of the decree, except on a clear showing of fraud in its rendition, or a want of jurisdiction as to the subject-matter of the suit. There is no pretense or allegation of fraud in the decree, nor is there a doubt of the jurisdiction of the court in the suit. This is given in such express terms by the statute, as to leave no room for controversy. If there was any error in the facts found by the decree, or the legal conclusions of the court, the obvious and only remedy was an appeal to a higher court having ample power to revise and reverse the decree. This principle is so well settled as scarcely to need the citation of authorities for its support. It has been repeatedly affirmed by this court, and distinctly held by the Supreme Court of the United States. 10 Pet. 474; 14 How. 588. But it is by no means clear that the objection now urged to the validity of the complainant's copyright could have been sustained, if it had been presented in the proper way |