Nesmith v. Sheldon. 7 H.

lished, or procured to be published, by the defendant, whether the same were proved to have been found in the defendant's possession or not; and so the court decided and instructed the jury." And they found a verdict for plaintiffs for "two thousand sixty-nine dollars and seventy-five cents debt, and six cents costs."

The 6th section provides, that, if any person, within the term for which a copyright has been secured, shall print, publish, or import, &c., sell, or expose to sale, or cause to be published, sold, or exposed to sale, any copy of such book, without consent in writing, such of fender shall forfeit every copy of such book to the person legally entitled to the copyright thereof; "and shall also forfeit and pay fifty cents for every such sheet which may be found in his possession, either printed or printing, published, imported, or exposed to sale, contrary to the intent of this act."

This penalty of fifty cents on each sheet, whether printed or being printed, or published, or exposed to sale, is limited to the sheets in possession of the defendant. But under the instruction of the court, a verdict was rendered for every sheet which the defendant had published or procured to be published.

As this is a penal section, it must be construed strictly. Under it, every copy of a book published without the consent of [*812] the person having the copyright is forfeited, in addition to the penalty of fifty cents on each sheet in his possession. The declaration seems not to have been drawn with the view of enforcing any other penalty than that which is imposed for each sheet found in the possession of the defendant.

The judgment of the circuit court is reversed, and the cause remanded for further procedings.

JONATHAN W. NESMITH and THOMAS NESMITH, Complainants, v. THOMAS C. SHELDON, HORACE H. COMSTOCK, DAVID FRENCH, WILLIAM E. PETERS, JAMES FORTON, ATTA E. MATHER, HENRY B. HOLBROOK, SAMUEL P. MEAD, FRANCIS E. ELDRED, Phebe ANN DEAN, CULLEN BROWN, and CHARLES H. STEWART, Respondents.

7 H. 812.

The supreme court of Michigan having settled a question as to the constitutionality of a law of that State depending wholly on the local law, this court followed that decision.

Seaman, for the plaintiff.

Romeyn, contrà.

Nesmith v. Sheldon. 7 H.

*TANEY, C. J., delivered the opinion of the court.

[* 817 ]

In this case, the circuit court for the district of Michigan have certified that the following point arose in this case, upon which the justices were opposed in opinion:

"Whether the banking associations organized under the act of the legislature of the State of Michigan, entitled 'An act to organize and regulate banking associations,' approved March 15, 1837, and the amended act, entitled 'An act to amend an act, entitled " An act to regulate banking associations and for other purposes," approved December 30, 1837, were or were not corporations or bodies corporate, within the meaning of the constitution of the State of Michigan."

This question, it appears, depends on the construction of the constitution of Michigan, which declares that the legislature shall pass no act of incorporation unless with the assent of at least two thirds. of each house.

The legislature chosen under this constitution, with the assent of two thirds of each house, passed an act authorizing any persons resident in any county in the State to form associations for banking business, upon the terms and conditions prescribed in the law; and declaring the stockholders in such associations to be a body politic and corporate, by such name as they should designate and assume, and conferring upon them the usual powers of banking corporations.

Under this act of the legislature, an association of persons was organized, under the name of the Detroit City Bank.

Another act was afterwards passed by the legislature, under a power reserved in the first, to amend its provisions. And this act, under certain circumstances, made the stockholders liable for the debts of the association.

*The complainants in this case, having become creditors [*818 ] of the association, filed their bill in equity, to charge the defendants as stockholders, under the provisions of the last-mentioned act.

And in the progress of this suit, the question arose which has been certified as above mentioned.

If we regarded the question as an open one, a more particular statement of the provisions of these acts of the legislature would be necessary, and also of the transactions which led to this suit. And the point certified would require a very careful and deliberate examination by this court.

But it appears that the same question has arisen in the state courts of Michigan, and been decided in its supreme court, upon full argument and consideration. We refer to the case of Green v. Graves,

Stearns v. Page. 7 H.

decided in 1814, and reported in 1 Doug. Michigan Reports, 351. In that case the court held, that the banking associations organized under the acts of the legislature mentioned in the certificate of division were corporations within the meaning of the constitution of Michigan; and that these acts were unconstitutional and void.

The point certified is precisely the same. It relates altogether to the construction and legal effect of the constitution of that State, nd of the two acts passed by its legislature. And it is the established doctrine of this court, that it will adopt and follow the decisions of the state courts in the construction of their own constitution and statutes, when that construction has been settled by the decision of its highest judicial tribunal. After the decision above mentioned, therefore, the question certified cannot be considered 'as open for argument in this court. The cases of Groves v. Slaughter, 15 Pet. 449, and the two cases of Rowan v. Runnels, 5 How. 134, in relation to the construction of the constitution of Mississippi, stand on very different grounds, as will be seen by a reference to the cases.

Upon this view of the subject, it will be certified to the circuit court, as the opinion of this court, that the banking associations organized under the acts of the legislature mentioned in the certificate of division were corporations within the meaning of the constitution of Michigan; and that these acts of the legislature are unconstitutional and void.

8 H. 495; 11 H. 297.

GEORGE B. STEARNS, Administrator de bonis non of JOHN O. Page, Appellant, v. RUFUS R. PAGE.

7 H. 819.

Bill to open an account settled twenty-six years before; statute of limitations pleaded; relief denied.

What averments must be made on such a bill, to induce the court to open the account.

THE case is stated in the opinion of the court.

Evans, for the appellant.

Allen, contrà.

[ * 826 ]

GRIER, J., delivered the opinion of the court. A brief history of the conceded facts of this case, anterior to the filing of the amended bill, may save the trouble of a more tedious analysis of the bill and answer, with their numerous

Stearns v. Page. 7 H.

amendments, and tend to elucidate the merits of the case and the questions decided by the court.

John O. Page, the complainant's intestate, was a merchant in Hallowell, Maine. He built and owned shares in vessels employed in trade, and had a retail shop or store, which, for some years before his death, was managed by his brother, Rufus K. Page. In 1810, John O. Page went to England, leaving his business chiefly in the care of his brother, and died there, in February, 1811, intestate leaving a widow and three minor children. Sarah Page, the widow, took out letters of administration on the estate. She filed an inventory of the property, amounting to the sum of $64,000, and charged herself with additional receipts of cash in the administration accounts afterwards filed, showing the whole amount of the estate to be over $80,000.

Rufus K. Page claimed to have been a partner with his brother in the store, by a parol agreement with him, whereby John should furnish the capital, and Rufus conduct the business, dividing the profits, five eighths to John and three eighths to Rufus.

The sureties of Sarah Page in her administration bond were Nathaniel Dummer, her father-in-law, and Thomas Bond, Esq., her brother-in-law, who also aided and counselled her in settling the estate. In February, 1812, Chandler Robins, register of the probate court, and John Agry, a respectable merchant and ship-owner, were mutually chosen by the administratrix and Rufus K. Page to settle all accounts between the estate of John O. Page and Rufus K. Page. By their settlement or award, Rufus was charged as debtor to John:

Leaving a balance due by Rufus to the estate, $15,875.00

After adding and subtracting various other matters of account not connected with the partnership, they found the balance due by Rufus to the estate to be $17,190, of which $8,106 was cash, and the remainder, $9,084, consisted of John's share of the notes and accounts. due to the store, and which Rufus retained in his hands for collection. The first administration account filed by Sarah Page acknowledges the receipt in cash of the sum of $8,106 from R. K. Page, and the accounts afterwards filed show that she had received the balance of $9,804, partly in cash and partly in notes.

Stearns v. Page. 7 H.

Sarah Page settled the final account of her administration on the 20th of February, 1816. She died in 1826. In 1828, Stearns, the complainant, intermarried with Louisa, one of the daughters and heirs of John O. Page. In 1834, he took out letters of administration de bonis non on the estate of John O. Page, for the purpose of prosecuting claims under the treaty of the United States with France. After this he commenced an examination of the administration accounts of Sarah Page, and began to entertain suspicions that Rufus K. Page had taken advantage of her ignorance of accounts, and had defrauded her in his settlement. And finally, at November term, 1838, more than twenty-six years after the settlement of defendant's account with the administratrix, this bill was filed against Rufus K. Page for a discovery and account.

The amended bill abounds in general charges of fraud against the defendant; alleges that he concealed from the administratrix the true state of the affairs of the deceased, which had been intrusted to his care; that the partnership claimed by him with the deceased was a false pretence," and that the said Sarah did not distrust, or had it not in her power to disprove, 'the same;" that the accounts exhibited of the partnership transactions were totally false and fraudulent in their statements and aggregates, calculated and designed to deceive and mislead.

It charges, also, that some $10,000 of private debts due by Rufus to John were intermingled with the partnership accounts so as to produce an erroneous result, and that he had sold and converted to his own use the brig Emmeline, which was owned, in whole or in part, by John, and rendered no account of the same.

[* 829]

*Afterwards, in October, 1841, by a further amendment.

to the bill, the complainant admits, that, "from means of information which he now has," there was a partnership between John and Rufus, but insists that the profits were to be divided between them in the ratio of two thirds to John and one third to Rufus.

The defendant, in his answer, after denying the general charges of fraud and mistake, asserts, that he entered into partnership, by parol agreement, with his brother, John, in 1806; that the business of the firm was transacted in the name of Rufus K. Page; that John advanced the capital, and Rufus superintended and conducted the business of the store, and the profits thereof were to be divided five eighths to John and three eighths to Rufus; that the books of the firm were kept on these principles, and always open to the inspection of John, and frequently examined by him; that when John advanced money or goods for the use of the firm, he took the notes of the firm: