(273 F.)

is not until then that any estate or chose in action arises or exists; and when such right arises it is—as above stated-a new estate, not a true extension of the existing copyright. If it were otherwise, the author could grant to his first publisher the renewal right eo nomine, which is exactly what the statute was designed to prevent.

But what may be assigned can ordinarily be devised, and it results that before the statutory year the author cannot devise the renewal right; consequently in this case Mrs. Wilson's legatees took no such. right, so far as this novel in concerned, because shortly the testatrix had as yet nothing to leave. If, however, the author lives to within the statutory year, he may certainly exercise his right, assign it, or bequeath it; and if he dies in the year, but before registration, it is for his executors to function. They would receive the renewal, as do the executors of an inventor dying after application and before issue of patent, who "in the absence of context to the contrary" take "in trust for the next of kin." De La Vergne, etc., Co. v. Featherstone, 147 U. S. 222, 13 Sup. Ct. 285, 37 L. Ed. 138. In this case, had Mrs. Wilson died within the year, her executors would have found "context to the contrary," and would have acquired copyright for the residuary legatees as such.

Result is that we construe the section as vesting the right in or imposing the duty on, executors only when the power or privilege of obtaining renewal was existing in the testator author at the moment of decease. This avoids the anomaly of requiring executors, as such, to do something in respect of a property right not passing by the will appointing them, or capable of so passing. It is consequently held here that, since this renewal right did not exist, it was not affected by the will or the appointment of executors; in short, there was a necessary absence of a will in respect of this right, which only came into existence some five years after the testatrix died.

This holding also renders unnecessary any consideration of the question as to how far an executor is or can be discharged of his office, by anything short of death or revocation of letters-a matter of state regulation, and capable of greatly complicating questions arising under national statutes.

Defendant's last contention requires investigation of the attributes and incidents of the incorporeal property called copyright. The privilege of application may be likened to that "inchoate right" in an invention, which the proper party "may perfect and make absolute by proceeding in the manner which the law requires." Gayler v. Wilder, 10 How. 477, 13 L. Ed. 504. When that right arose in October, 1914, it vested in the next of kin, as follows from our findings hitherto. Furthermore, it so vested in them as owners in common; there being no material difference in estate nature on this point between the right to apply and the copyright as and when granted or registered. As to the nature of tenancy, see Carter v. Bailey, 64 Me. 458, 18 Am. Rep. 273; Powell v. Head, 12 Ch. Div. 686; Lauri v. Renad, [1892] 3 Ch. 403; Maurel v. Smith (C. C. A. 2d, Jan. 12, 1921), 271 Fed. 211, affirming (D. C.) 220 Fed. 198.

273 F.-58

There is nothing in the nature of copyright forbidding a separation between the legal and equitable titles; one may hold in trust for others (Harms v. Stern, 229 Fed. 42, 145 C. C. A. 2, and Maurel v. Smith, supra), and ownership in common may and does arise from joint authorship (Levi v. Rutley, L. D. 6 C. P. 523; Maurel v. Smith [D. C.] 220 Fed. 198) as well as from creation of right in a plurality, wherein again it resembles a patent (Blackledge v. Weir, 108 Fed. 71, 47 C. C. A. 212.

One of the most characteristic marks of tenancy in common, absence of right to an accounting inter sese, has been recognized in respect of copyright (Carter v. Bailey, supra), as well as in patent law (Blackledge v. Weir, supra); while the right of each part or common owner to license is acknowledged, though with differences of opinion as to the effects on nonlicensing co-owners (Powell v. Head, supra; Nillson v. Lawrence, 148 App. Div. 678, 133 N. Y. Supp. 293), of which the last is more in consonance with corresponding patent law (Walk. Pat. [5th Ed. § 305).

[3] Assuming tenancy or ownership in common in the next of kin, there is no reason why other and well-known incidents of such title should not control the interpretation of a statute creating common ownership. Thus it is "a settled rule of law" that the possession of one tenant in common is the possession of all (Mining Co. v. Taylor, 100 U. S. 40, 25 L. Ed. 541); so, too, the entry of one is the entry of all; seisin of one is for the use of all, any act of one is presumed to be for the common benefit; in short the relation between such owners is ordinarily or presumably that of trust (Clymer v. Dawkins, 3 How. 674, 11 L. Ed. 778, Rapalje's notes). Especially is the purchase or acquisition of an outstanding title for the common benefit. Rothwell v. Dewees, 2 Black, 613, 17 L. Ed. 309; Courtner v. Etheredge, 149 Ala. 78, 43 South. 368.

Reasoning ab inconvenienti is not legally cogent; but remembering that we must construe this statute "with a view to effecting the purposes intended by Congress," and not so "narrowly * * * as to deprive those entitled to their benefit of the rights Congress intended to grant" (Bobbs-Merrill v. Straus, supra, 210 U. S. at page 346, 28 Sup. Ct. at page 724 [52 L. Ed. 1086]), we may point out that only by treating the act of a fraction of the next of kin as a class act can injustice be prevented. Next of kin are often numerous, as here; widely separated geographically, as here; some may be in parts unknown; yet defendant's argument, pressed to its logical result, means that, if one owner of a microscopic fraction of right cannot be found or can be bought, so that he cannot or will not sign the renewal application, the rest of the family are helpless. The same result would flow from the malicious or purchased act of one child in a numerous family. Assuredly the Legislature never intended such injustice.

It is therefore held that the two sisters, who as next of kin registered the renewal, were lawfully authorized so to do for themselves and their fellow owners in common, their act was in law the act of all, and

(273 F.)

plaintiff, having derived title from all, is the owner of a lawful renewal copyright.

Order reversed, with costs, and cause remitted, with directions to grant injunction as prayed for.

UNITED STATES ex rel. BRYANT v. HOUSTON, Secretary of the

Treasury, et al.

(Circuit Court of Appeals, Second Circuit. May 18, 1921.)

No. 260.

1. Habeas corpus ~54-Complaint by next friend not warranted without explanation.

Under Rev. St. § 754 (Comp. St. § 1282), providing that application for writ of habeas corpus shall be made by complaint, "signed by the person for whose relief it is intended," and verified by the oath of the person making the application, a complaint made by one as "next friend" must set forth some reason or explanation, satisfactory to the court, showing why it is not signed and verified by the person detained, and what relation the next friend bears to such person.

2. War 4-Order of president, retransferring the Coast Guard to the Treasury Department, valid.

The order of the President of August 28, 1919, retransfering the Coast Guard from the Navy to the Treasury Department, made under Overman Act May 20, 1918, § 1 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 283a), held within the authority given by such act and effective.

Appeal from the District Court of the United States for the Southern District of New York.

Petition of Mildred Bryant, on behalf of Harry Harris, against D. F. Houston, Secretary of the Treasury, and others, for writ of habeas corpus. Writ denied, and petitioner appeals. Affirmed.

Emery C. Weller, for appellant.

Francis G. Caffey, U. S. Atty. (Earl B. Barnes, Asst. U. S. Atty., of counsel), for appellees.

Before WARD and ROGERS, Circuit Judges, and MAYER, District Judge.

MAYER, District Judge. [1] 1. This is an appeal from an order of the District Court for the Southern District of New York, dismissing a writ of habeas corpus. The writ was allowed on the application of "your petitioner, Mildred Bryant (a friend of Harry Harris), of Woodhaven, Long Island." The petitioner fails to disclose anywhere in her petition who she is, or what relationship, if any, she bears to Harry Harris, or whether Harry Harris for any reason was unable to sign and verify the petition, or whether the father of Harris, who according to the petition resides at No. 2128 North Twenty-First street, in Philadelphia, Pa., or Harry Harris himself, desired this application to be made. The petitioner, it is true, alleges that she is advised that

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Harris is "troubled with aphasia"; but this allegation is set forth as an excuse for his desertion, and not as explaining why Harris did not sign and verify the petition or complaint (as it should more aptly be called), in accordance with U. S. Compiled Statutes, § 1282 (R. S. § 754), which reads as follows:

"Sec. 1282. Application for-Application for writ of habeas corpus shall be made to the court, or justice, or judge authorized to issue the same, by complaint in writing, signed by the person for whose relief it is intended, setting forth the facts concerning the detention of the party restrained, in whose custody he is detained, and by virtue of what claim or authority, if known. The facts set forth in the complaint shall be verified by the oath of the person making the application."

The provisions of the section quoted, supra, indicate that it was not intended that a writ of habeas corpus should be allowed on the application of any person whomsoever without explanation as to why the complaint was not signed "by the person for whose relief" the writ "is intended."

The practice of a next friend applying for a writ is ancient and fully accepted. There are many instances and circumstances under which it may not be possible nor feasible that the detained person shall sign and verify the complaint. Inability to understand the English language or the situation, particularly in the case of aliens, impossibility of access to the person, or mental incapacity are all illustrations of a proper use of the "next friend" application. In re Ferrens, Fed. Cas. No. 4,746, Judge Blatchford, entertained an application made by the wife of an enlisted soldier and briefly summed up the practice as follows:

"It is claimed on the part of the United States that the writ must be dismissed, because it is not prosecuted by the recruit himself; that no one can prosecute it but himself, unless it be shown that he is debarred the opportunity of preferring a petition himself; and that such fact is not shown in this case. It has never been understood that, at common law, authority from a person unlawfully imprisoned or deprived of his liberty was necessary to warrant the issuing of a habeas corpus, to inquire into the cause of his detention. In the case of People v. Mercein, 3 Hill, 399, 407, the Supreme Court of New York intimate that such authority from the person detained is not ordinarily necessary. In case of Ashby, 14 How. St. Tr. 814, the House of Lords, in England, in 1704, resolved 'that every Englishman, who is imprisoned by any authority whatsoever, has an undoubted right, by his agents or friends, to apply for and obtain a writ of habeas corpus, in order to procure his liberty by due course of law.' This resolution was assented to by the house of commons. Id. 826. In the present case, the petitioner states, in her petition, that she is the wife of the recruit, and is dependent upon him for support. This is, I think, sufficient to authorize her to prosecute the writ."

But the complaint must set forth some reason or explanation satis factory to the court showing why the detained person does not sign and verify the complaint and who "the next friend" is. It was not intended that the writ of habeas corpus should be availed of, as matter of course, by intruders or uninvited meddlers, styling themselves next friends. Gusman v. Marrero, 180 U. S. 81, 21 Sup. Ct. 293, 45 L. Ed. 436.

The case at bar well illustrates the desirability of making clear that applications of this character should not be entertained. There is noth

(273 F.)

ing to show that either Harris or his father authorized or desired this application to be made, or that it is a matter of the slightest concern to either of them whether Harris shall be tried by a Navy court-martial or by a Coast Guard court-martial.

There is nothing in the record to show that the point here considered. was called to the attention of the District Court, but the District Court would have been justified in disallowing or dismissing the writ for failure on the part of the petitioner to show why she, and not Harris, signed and verified the complaint, and for failure to show what relationship, if any, existed between Harris and herself, or what was her concern, if any, in the detention of Harris.

We are not to be understood as holding that an outsider may not make the application for a writ of habeas corpus, but the application must set forth facts, which will satisfy the court that the interest of the next friend is appropriate, and that there is good reason why the detained person does not himself sign and verify the complaint, as provided in section 1282, supra.

[2] 2. At the time when the writ was allowed, Harris, it is alleged, was under arrest confined in the brig at the Barge Office of the New York Division of the United States Coast Guard, awaiting trial by a General Coast Guard Court upon charges of desertion, and of violating lawful regulations issued by the Secretary of the Treasury.

In time of peace, the United States Coast Guard is under the jurisdiction of the Treasury Department; but, in time of war, it is subject to the orders of the Secretary of the Navy. The act of January 28, 1915 (38 Stat. L. 800, 2 Fed. Stat. Ann. [2d Ed.] p. 262, Comp. St. §§ 84592a[1]), provides in part:

"The Coast Guard, which shall constitute a part of the military forces of the United States and which shall operate under the Treasury Department in time of peace and operate as a part of the Navy, subject to the orders of the Secretary of the Navy, in time of war or when the President shall so direct."

At the date of the entry of the United States into the war with the German Empire, the Coast Guard automatically passed under the control of the Navy Department and so remained until August 28, 1919, when the President signed an order turning it back to the Treasury Department, under whose direction since said date it has been operated and is now operated.

The order directing the trial of Harris on the charges preferred against him was signed by the Assistant Secretary of the Treasury on February 21, 1921, and it is to be presumed that the General Coast Guard Court was duly convened by the same authority pursuant to the provisions of the statute. Act May 26, 1906, 34 Stat. L. 200 (2 Fed. Stat. Ann. [2d Ed.] 304).

The President's order of August 28, 1919, was as follows:

"By virtue of the authority conferred by 'An act authorizing the President to coordinate or consolidate executive bureaus, agencies, and offices, and for other purposes, in the interest of economy and the more efficient concentration of the government,' approved May 20, 1918, I do hereby make and publish the following order: