The assignments of error filed by the defendants in this court allege that the final decree of the circuit court is erroneous (1) because it recites that the hearing was upon the master's report, with exceptions thereto, when there was no report nor any exceptions thereto before the court at the final hearing; (2) because it finds that the plaintiff is entitled to damages, when the only remedy in equity is by injunction and an account of profits; (3) because it finds that copyright in the book, the title of which is set forth in the bill, was vested in the plaintiff as proprietor thereof, when the proofs show that he never was its proprietor, and therefore could not procure a valid copyright therein; (4) because the proofs did not show that any valid copyright had been procured at any time in said book, or in either edition thereof; (5) because the decree goes for the entire amount of profits realized by the corporation defendant, which was the proprietor of the book which is alleged to infringe the rights of the plaintiff, instead of such part of the profits as was realized by reason of such infringement; (6) because it orders the defendants Donohue & Henneberry to pay the amount of said profits, when the pleadings and proofs fail to show that any part of such profits was realized by them, or either of them; (7) because the court granted the motion of the plaintiff, after the hearing of the cause, to file proofs therein, and denied the motion of the defendants to have such proofs stricken from the record; and (8) because the findings and decrees of the court were against the law and the evidence.
1. It is true that the record shows that on the 17th of October, 1884, the court made an order referring the cause to a master in chancery 'to take proof and state an accountherein.' No report afterwards made is found in the record. The only special report found therein is one of the master, hereinbefore set forth, filed February 27, 1884, on the question of the issuing of a preliminary injunction. To that report no exceptions appear to have been filed. Not only does the final decree of April 9, 1888, state that the cause was heard upon bill, answers, replications, and proof, 'and upon the master's report herein, with exceptions thereto,' but the opinion of Judge BLODGETT says: 'The case was referred to one of the masters of the court to take proofs and report findings upon the question of infringement; and he has reported that the defendants, by the publication and sale of two books set out and described in the bill of complaint, one under the title of 'How to Cook,' and the other under the title of 'Economy Cook-Book,' have infringed upon the complainant's copyright by incorporating into their said publication something over fifty pages of the matter of complainant's book, as well as substantially following the arrangement of subjects and headings. Myers v. Callaghan, 10 Biss. 139, 5 Fed. Rep 726. I have carefully examined the proof upon which the master bases his findings, and am satisfied that the finding was fully justified by the testimony. The case is now before me on defendants' exception to the master's findings, and on complainant's motion for a decree in pursuance of the master's report.'
The report thus referred to in the decree and in the opinion is manifestly the report filed February 27, 1884, and there must have been exceptions thereto taken by the defendants. The testimony on which that report was based is not found in the record. The only other master's report in the record is one made by him reporting the testimony which he had taken in the cause in Chicago in May, 1885, and subsequently, and which report is dated April 20, 1886, and was filed April 27, 1886. If exceptions were taken by the defendants to either or both or those reports, it was their duty as appellants to have them brought into this court as part of the record; and if they took no exceptions the reports stand without exception. The first assignment of error is of no avail to the defendants.