that he had made arrangements to produce La Boheme; and that on said date he received a letter, a copy of which he annexes to his affidavit, in which Maxwell merely notifies him that the opera is copyrighted, and makes no mention of any contract with Conried for its exclusive production.

Various other facts bearing on the controversy are alleged in the Hammerstein replying affidavits or are shown by other papers. Hammerstein states that he told one of the complainants that he had engaged Bassi for La Boheme, among other operas, and that said complainant approved the selection, and that he made contracts with various celebrated artists, providing specifically for their appearance in La Boheme; and it appears from the affidavits on both sides that any reputable and responsible manager was allowed to produce La Boheme, upon furnishing satisfactory statements of the cast chosen for the opera and agreeing to pay a license fee.

Maxwell, in his affidavit, denies that he ever made any such contract, or that he ever had any conversation with Hammerstein in regard to a contract for the Puccini operas, other than Madam Butterfly, until the night before Hammerstein's departure for Europe. He states that he then called on Hammerstein, and that Hammerstein, in the presence of Mr. Ben Davies and Mr. William Thorner, asked him"If he could have La Boheme, Tosca, and Madam Butterfly, and I told him that no contracts had been made for any of them, but I did not believe he could in any event have Madam Butterfly. * He then asked me to give him a contract for the others, and I said that at that time I could give him no contract and entertain no proposition until such time as he could submit a list of his proposed cast, as it was our invariable rule to make no contract for the production of any operas until the names of the artists who would sing had been submitted for approval. He replied that up to that time he had made no engagements, except Bonci and Edward de Reszke, but within ten days after his arrival in Europe he would advise me of the various artists he proposed to engage. I told him on receipt of such advice I would consider the question of a contract with him. He then asked for a letter of introduction to complainant, and I gave him one.'

Messrs. Davies and Thorner confirm the material statements as to this conversation, and both state that no contract or license was granted by Maxwell on that occasion. Maxwell further states that he called on Tito Ricordi, one of the complainants, in Italy in May; that Ricordi informed him that Hammerstein had in March requested permission for the production of the Puccini operas, and that he told him that the rights for the United States had been given solely and exclusively to Maxwell; that he (Maxwell) called on one Fano, said to be the agent of the defendant in Milan, and stated that he had not yet received any information from Hammerstein as to his plans in reference to La Boheme, and suggested that he cable to Hammerstein for instructions; that Fano sent a cable, but that he (Maxwell) never heard anything from Hammerstein. Maxwell further states that Fano has admitted that he sent the cable to Hammerstein, as stated by Maxwell, and that Hammerstein could not have expended any such sum as he said he did for costumes and scenery.

It is to be observed that none of the allegations in complainant's affidavits, except Maxwell's denial, meet the statement by Hammer

stein, confirmed on one occasion by Guest, of a license or agreement to license; and most of the assertions and counter assertions may be so harmonized as to show that, even if said agreement was not originally made, Maxwell and Tito Ricordi by their conversation and conduct led or permitted Hammerstein to make said contracts and incur said expenses upon the faith of an understanding that a license would be given him to produce La Boheme, provided the usual conditions were complied with. There is much force, therefore, in the argument that it was not until after Conried recognized the prominence of Hammerstein as an operatic rival that any objection was made to the production of La Boheme, as contemplated by Hammerstein. In fact, the affidavits of complainant and the Maxwell letter, which fails to suggest any exclusive license, support these assertions. It is admitted by Maxwell that he did not give to Conried the exclusive right for the production of said opera for the coming season until on or about the 14th day of May, 1906.

It may be assumed that Hammerstein offered to advise Maxwell of the artists he proposed to engage within a given time. But it does not appear that Maxwell asked for or insisted upon any fixed time for such notice; and Tito Ricordi, to whom Maxwell had given Hammerstein a letter of introduction, states that, when Hammerstein spoke to him about arrangements for producing La Boheme, he told him "that, if he desired to produce the same or any other operas controlled by us, he would have to apply to, and make terms with, the said Maxwell." Hammerstein states that on his return from Europe, and thereafter, he called at Maxwell's office, and later tried to get into communication with him, but that Maxwell was at first in Europe, and that later, whenever he (Hammerstein) inquired for or telephoned him, he was informed that Maxwell was not in. It is nowhere claimed that Maxwell ever gave Hammerstein any notice of any intention to grant an exclusive right to Conried, or to take any action inconsistent with the statements made to Hammerstein by him and by the complainant Tito Ricordi.

In these circumstances, and after complainant's agent (Maxwell) had "informed him (Hammerstein) that up to that time I had not made any contracts for the said operas," and had "told him on receipt of such advice I would consider a contract with him," and Tito Ricordi had referred him to Maxwell, if complainant concluded to discriminate against Hammerstein by granting an exclusive license to Conried, thus disabling itself from granting to Hammerstein a license upon such terms as it was in the habit of granting to other persons, it was its duty to seasonably notify him of such proposed action. But, although Maxwell states that he made the exclusive license to Conried in May, he did not notify Hammerstein of that fact even so late as July 25th, and the letter then written might fairly be interpreted merely as a notice of complainant's copyright rights. In this discussion I have not overlooked the statement as to the Fano cable: "Maxwell in Milan. Have you any instructions?" Even, however, if it was sent, and even if it be assumed that it was received by Hammerstein, which he denies, it clearly was no notice of a proposed withdrawal of the offer to allow Hammerstein to produce La Boheme, or of any objection to such production.

It is true, as argued by counsel for complainant, that a court of equity should not permit the enforcement of an alleged oral license to use a copyrighted musical production without satisfactory and convincing proof. And, if the claim of defendant in this case depended merely on his statement that such a license was granted, this court might not be justified in refusing the injunction. But here it appears from complainant's own affidavits that neither the complainant in Milan nor his agent in New York ever raised or suggested any objection to defendant's application for a license, except that relating to the submission of the proposed cast, and that from the time when Maxwell called on Hammerstein in February, and during all the time when complainant was in a position to know, and upon its own statements must be presumed to have known, of Hammerstein's plans, it failed to notify him of any objection to the production of La Boheme, except as above stated. And after the complainant at Milan had referred defendant to its agent (Maxwell) in New York, and had told Maxwell that it had done so, Maxwell, without notice to defendant, gave an exclusive license to Conried, and permitted Hammerstein to continue his preparations for the production of La Boheme.

An injunction is granted, not ex debito justitiæ, but in the sound discretion of the court, in view of all the circumstances of the particular case. For the reasons stated above, complainant should not be permitted to raise objections, now interposed for the first time, as a ground for a preliminary injunction. And this court, sitting as a court of equity, would not be justifed in enforcing such objections by injunction before the questions at issue have been fully tested and satisfactorily determined upon examination and cross-examination of witnesses. Especially is this so in view of the great hardship which would be imposed thereby on defendant, in view of the contracts made and expenses incurred on the faith of the situation produced or permitted by Maxwell and Ricordi, as established by their own statements. The motion is denied.

THE JOHN K. GILKINSON.

(District Court, S. D. New York. January 29, 1907.)

1. SHIPPING-PROCEEDING FOR LIMITATION OF LIABILITY-JURISDICTION. Under admiralty rule 57 (9 Sup. Ct. iii), where the owner of a vessel has been sued on a claim for damages against which he is entitled to a limitation of his liability under the statute, but the vessel has not been libeled, a proceeding for limitation of liability may be brought in the District Court either of the district in which the owner has been sued or in that of the district in which the vessel may be, and an allegation in the petition that the vessel is within the district gives the court jurisdiction.

[Ed. Note.-Limitation of owner's liability, see note to The Longfellow, 45 C. C. A. 387.]

2. SAME.

Where a District Court has acquired jurisdiction of a proceeding for limitation of liability for a claim for damages on which the owner has been sued in another district, the claimant cannot defeat such jurisdiction

by appearing specially and offering or attempting to reduce the amount of his claim below the appraised value of the vessel and her pending freight.

In Admiralty. Proceeding for limitation of liability. On exceptions to petition for want of jurisdiction.

Alexander & Ash, for petitioner.

Richard J. Donovan, Albert A. Wray, and Stephen Callaghan, for

claimant.

ADAMS, District Judge. An ordinary action to limit liability as owner of the steamtug John K. Gilkinson, was begun by the Hudson Towboat Company in this court on the 13th of November, 1906. The petition alleged that the said company was the owner of the said boat; that on the 17th of May, 1906, said tug was hired to tow two scows from the port of New York to the dumping grounds at sea and return; that pursuant to the hiring the tug took one of the scows in tow at the City of New York and took her to the foot of York street, Jersey City, where she picked up the other scow; that she then took both scows in tow tandem on a hawser in the usual manner so arranged that the scows might be safely separated in case of necessity through adverse weather, such separation not to be made, however, except upon orders of the master of the tug; that abcut 7:30 P. M. while the tug was properly manned and equipped and was proceeding to sea through the Swash Channel, the sea being then smooth, the scowman on the tail scow wrongfully and without orders from the tug, and in violation of his duties, attempted, of his own volition, to cast off the lines running from the forward corner bitts of his vessel to the after corner bitts of the other scow, and in so doing negligently allowed his leg to be caught between one of the hawsers and one of the forward bitts of his vessel, the effect of which was to cut his leg off below the knee; that hails were subsequently heard from the scow on the tug which immediately went back to the tow and the injured man taken off; that an action at law was brought by the said scowman, one Bernard Laughlin, in the United States Circuit Court for the District of New Jersey to recover $25,000 for injuries alleged to have been sustained by him; that the residence of said Laughlin is unknown to your petitioner except that it is stated in the complaint that he is a resident of the State of New York; that the attorney for the plaintiff is Richard J. Donovan of 170 Broadway, Borough of Manhattan, New York City; that the amount of the claim far exceeded the value of the vessel at the termination of the voyage; that the voyage terminated on the 17th day of May, 1906, and the value of the tug at the close of the voyage did not exceed $10,000 and she earned no freight or charter money on the voyage. Then follow the usual allegations in matters of this kind and a prayer for an appraisement. Subsequently upon proceedings duly taken, an appraisement was had and the value of the tug the 17th of May, 1906, determined to be $10,000.

Thereafter, the claimant Laughlin appeared in the action and filed exceptions and exceptive allegations (The Seminole [D. C.] 42 Fed. 924), as follows:

"Bernard Laughlin, the claimant named in the petition herein specially appearing in this proceeding for the purpose of contesting the jurisdiction of this court, excepts to the libel and petition herein and files his exceptive allegations as hereinafter set forth viz.:

First: In that the petitioner is a resident of the District of New Jersey (Petition, First Article); that there is no lien or claim upon said Steamtug 'John K. Gilkenson' in said petition named of any kind or nature and no lien or claim prior or paramount to any lien or claim which may have accrued by reason of the matters in said petition set forth (Article 10); that said steamtug with her tow started to sea from Jersey City in said District of New Jersey on the voyage in question (Article 2); that said steamtug since the termination of said voyage has been engaged in her usual occupation in and about the harbor of New York (Article 10); it appearing from said allegations that from the time of said accident until the time of the filing of said petition said steamtug was at times in the District of New Jersey, the home district of her owner; that at the time of said accident and at the time of filing said petition an action was pending in the United States Circuit Court for the District of New Jersey, brought by Bernard Laughlin this exceptant against said petitioner to recover damages at law upon his said claim (Article 7).

Second: In that the said steamtug was worth, at the time of filing said petition, the sum of Ten thousand ($10,000) Dollars (Article 8 Report of Thomas Alexander, Esq., Commissioner); that upon the hearing before said Commissioner said Laughlin was represented by counsel appearing specially and that thereupon said Laughlin reduced his claim and demand herein to the sum of Nine thousand ($9,000) Dollars (Report of Thomas Alexander, Esq., exceptive allegation Article 1).

Third: In that said deponent does not allege that said steamtug was not within the waters of the District of New Jersey on her return from the voyage upon which the said accident occurred, nor at the time said owner was sued in this behalf in the Circuit Court for the District of New Jersey, nor at any time before the filing of said petition.

Exceptive allegations of Bernard Laughlin, claimant, specially appearing to contest the jurisdiction of this Honorable Court respectfully show:

First: That an order of this Court was made herein to Thomas Alexander, Esq., Commissioner, to take proof of the value of the said Steamtug 'John K. Gilkenson,' her engines, etc., and her pending freight. That said Bernard Laughlin specially appeared by counsel before said Commissioner and took no part in the proceeding before said Commissioner except to enter his objections and the ground of his objections upon the minutes of said proceedings. That said Commissioner took proof of value of said steamtug her engines, etc., and her pending freight and thereupon reported to this Honorable Court that the value of the same was Ten thousand ($10,000) Dollars at the time of the accident and at the time of filing said petition.

Second: That said Bernard Laughlin reduced his claim and demand herein to the sum of Nine thousand ($9,000) Dollars and had the same noted upon the said minutes of said Commissioner before any evidence was offered of the value of said steamtug all of which appears upon the report of said Commissioner and the testimony thereto annexed."

Supreme Court Rule 57, as amended in 1889 (9 Sup. Ct. iii), provides as follows:

"The said libel or petition shall be filed and the said proceedings had in any District Court of the United States in which said ship or vessel may be libeled to answer for any such embezzlement, loss, destruction, damage, or injury; or, if the said ship or vessel be not libeled, then in the District Court for any district in which the said owner or owners may be sued in that behalf. When the said ship or vessel has not been libeled to answer the matters aforesaid, and suit has not been commenced against the said owner or owners, or has been commenced in a district other than that in which the said ship or vessel may be, the said proceedings may be had in the District Court of the district in which the said ship or vessel may be, and where it may be subject to the con