Johnson v. Donaldson

• Decision Date: 15 July 1880
• Citation: 3 F. 22
• Parties: JOHNSON v. DONALDSON.
• Court: U.S. District Court — Southern District of New York

3 F. 22

JOHNSON v. DONALDSON.

United States Circuit Court, S.D. New York.

July 15, 1880

WALLACE D.J.

The plaintiff, the proprietor of a copyright of the chromos called 'Taking Advantage of the Situation,' brought this action against defendant for publishing and selling copies of the same without the plaintiff's consent asking judgment for the penalties, and for the forfeiture of the plates on which the chromos were copied, pursuant to section 4965 of the Revised Statutes of the United States. Upon the trial the jury found for the defendant, and the plaintiff has moved for a new trial, alleging errors in the rulings on the trial, and insisting that the verdict was against the evidence.

Upon the trial the plaintiff attempted, by a subpoena duces tecum to compel the defendant to produce his books of account photographic plates, and the copies of the printed chromos claimed to be in his possession, to be used as evidence for the plaintiff, and the court ruled that, as the action was for penalties and a forfeiture, the defendant could not be compelled to furnish evidence against himself. It is now argued that this was error.

It would seem that the correctness of this ruling could not be seriously questioned. Section 860 of the U.S. Revised Statutes provides that 'no pleading of a party, nor any discovery or evidence obtained from a party or witness by means of a judicial proceeding in this or any foreign country, shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture. ' Irrespective of this statute, it would be contrary to all precedent, and a violation of one of the most familiar rules of the common law, to require a witness to furnish evidence to convict himself of a crime, or subject himself to a penalty or forfeiture. 1 Greenl.Ev. 452. And courts of equity, when sifting the conscience of a defendant by a discovery, never require him to disclose facts which would subject him to a penalty. Daniell's Chancery, 626; Story's Eq. Pl. Sec. 575.

The statutes which have within a comparatively recent period been enacted in England and in our own states, abrogating the rule by which parties were not competent witnesses in actions at law, are designed to place parties upon a footing of equality with other witnesses in regard to competency, but not to deprive them of the rights of ordinary witnesses. Concededly, the only purpose in view in requiring the defendant to produce his books plates, and chromos, upon the trial, was that thereby evidence might be furnished which would enable the plaintiff to recover the penalties and forfeiture in suit. The ruling was clearly right.

The defendant gave evidence upon the trial to show that the chromos published and sold by him were designed from a picture found in a foreign publication, circulated here before the plaintiff obtained his copyright; and the jury were instructed that if the defendant did thus obtain his design the plaintiff could not recover. It is now alleged that this instruction was error.

Care was taken to instruct the...