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Common Pleas. -Wright v. Tallis, and another. have a property in a work which he has no Sir Thomas Wilde replied. right to publish. The plaintiff here had no such right, and cannot, therefore, complain of

Cur. ad. vult. any injury done to the same. The plea disclosed a fraud committed by the plaintiff on Tindal, C. J., now delivered the judgment the public, in order to increase the sale of his of the court.- The plaintiff declared in an acwork; the plea states, and it must be taken tion upon the case for the infringement of the by the demurrer to be admitted as true, that copyright of a certain book, entitled “ Eventhe plaintiff, intending to defraud the public, ing Devotions, or the Worship of God in and to cause them to pay sums of money for Spirit and in Truth for every day in the copies, under the belief that they were pur-Year, from the German of C. C. Sturm, auchasing translations of an original work of thor of The Morning Devotions,'” of which Sturm, caused Huish to write the book, and copyright the plaintiff alleged himself to be then falsely, fraudulently, and deceitfully pub- the proprietor. And the defendants, in one lished the work as, and for a translation by of their pleas to this declaration, allege that Huish, of an original work by Sturm. This Christopher Christian Sturm had written and is, therefore, not a mere misrepresentation, and published, in the German language, books on differs widely from the cases of works of fic-religious subjects, which had been translated tion which have been alluded to, such as the into the English language, and had been, and Castle of Otranto and others, where there was, were much valued by the Queen's subjects, in fact, no fraud on the public, but where the and that the plaintiff, well knowing the premworks were professedly works of fiction. This, ises, employed one Robert Huish to compose also, may be said to be a fraud on the person and write the book mentioned in the declarawho is represented to be the author, and for tion. And the plea then alleged, that the which Sturm might have had an action, had plaintiff, wrongfully intending to defraud and he been alive at the time of publication. deceive the public, and to make them believe (Creswell, J.-.Because a work is published the book was a translation of an original book with a false title page, may any body else written by the said Christopher Christian publish it?] The title page is, for certain Sturm, and to purchase copies of it from the purposes, part of the work. Hogg v. Kirby, plaintiff, and to pay large sums of money to & Ves. 215, decided that the title, form, and the plaintiff, under the belief that they were mode of publication of a magazine cannot be purchasing translations of the original work, imitated in such a manner as would necessa- falsely, fraudulently, and deceitfully caused rily mislead the public, and induce them to the said Robert Huish to compose and write purchase the latter work instead of the con- the said book, and falsely, fraudulently, and tinuing parts of the former one. The defen- deceitfully published the same to the public, dant, being equally criminal, will not make as and for a translation of an original work any difference; and according to the dictum written in German by the said Christopher of Eyre, C. J., in Dr. Priestly's case, as sta- Christian Sturm. The plea then goes on to ted in Southey v. Sherwood, 2 Mer. 437, state, the plaintiff published the book with where the work is of that objectionable char- this fraudulent and deceitful pretence, and aeter that its publication would not be lawful, professes the object of it was to induce the the author can have no property in the work, public to believe thoroughly and entirely the and no action can be maintained in respect of book was really a translation of the work it. In Walcot v. Walker, 7 Ves. 1, the Lord |published by the said Christopher Christian Chancellor says, “If the doctrine of Lord Sturm; and the plaintiff falsely and frauduChief Justice Eyre is right, and I think it is, lently represented such to be the case to all that publications may be of such a nature that the subjects of the Queen who had purchased the author can maintain no action at law, it is the same. The plea then goes on to allege, not the business of this court, even upon the that these statements and representations made submission in the answer, to decree either an by the plaintiff were false and fraudulent to injunction or an account of the profits of his own knowledge. To this plea there was works of such a nature that the author can a general demurrer, and the question raised maintain no action at law, for the invasion of upon the record, is whether the plaintiff can that which he calls his property, but which have a right of action against the defendants the policy of the law will not permit him to for printing this work, or, in other words, consider his property.

I whether the plaintiff has a true, valid, and

Common Pleas. Wright v. Tallis, and another. subsisting copyright in this work. The ques-original work, whether the name of the author tion is one of' first impression, and cannot be was assumed or genuine. But, in the case said to be free from considerable difficulty; before us, no one of those observations will but upon the best consideration we can give apply. The facts stated in the plea import it, and reasoning from principles which appear a serious design on the part of the plaintiff to to us to have an analogy to the present sub- impose on the credulity of each purchaser, by ject-matter of inquiry, we think the plaintiff affixing the name of an author who had a real has no ground of action. The plea alleges, existence, and who possessed a large share of that the plaintiff made false representations to weight and estimation in the opinion of the the public with respect to the work, for the public. The object of the plaintiff is not object and purpose of imposing on the public, merely to conceal the name of the genuine and inducing them to give large prices for the author, and to publish opinions to the world copies they purchased; and it further alleges, under an innocent disguise, but it is to practhat the plaintiff knew at the time, and it is tice on some of the best feelings of the public, obvious, from the facts stated, he must have namely, their religious feelings, and thus to known such representations to be false. All induce them to believe the work is the origithese allegations are admitted by the demurrer nal work of an author known and estimated to be true :-the false assertion and represen- by the public, whom he names as the author, tations on the plaintiff's part, and his knowl- and, at the same time, knows it not to be so, edge that such assertions and representations and thereby obtains from the purchaser a were false, and that the act was done from a greater price than he would otherwise have base and unworthy motive, namely, that of obtained. The transaction ranges itself unobtaining money from the public by this false der the head of crimen falsi, for it is a species pretence. The first observation, therefore, of obtaining money under false pretences; and that arises is, that the present case is perfectly parties publishing works known by them. distinguishable from those which have been selves to be under false names, in order that referred to at the bar, of books of amusement the work might become purchased, would be or instruction having been published as trans- liable to the actions stated. We think the lations, whilst they have been, in fact, original plaintiff cannot be considered as having a works, or having been published in an assu- valid and subsisting copyright in a work, the med instead of a true name. Such was the sale of which produces such consequences, or instance given of the Castle of Otranto, pro- that he is capable of maintaining an action in fessing to be translated from the Italian, and respect of its infringement. Cases in which such was the case of innumerable works pub- a copyright has been held not to exist were lished under assumed names, such as books works that were subversive of good order, of fiction, voyages and travels, or copies of virtue, morality, or religion: they do not bear works of fiction or romance, or even works of directly on the case before us, but they have science and instruction. For, in all these in- so far an analogy with it, that the rule which stances, the misrepresentation is innocent and denies the existence of copyright in these harmless; there is not found in any one of cases is a rule established for the benefit and these cases any serious design on the part of protection of the public. We think, for these the author to deceive the purchaser, or to reasons, the defendants are entitled to the make gain and profit from it by a false repre-judgment of the court. sentation. The purchaser, for any thing which appears to the contrary, would have

Judgment for defendants. purchased at the same time if they had known the name of the author was an assumed, and not a genuine name, or had known the work was original and not translated; and, indeed,

LIBEL. in most of the cases which may be put, the statement is not calculated in its nature to de- ! In a case for a libel against a copartnerceive any one, but is, on its very first glance, ship, the jury were instructed to take into apparent. In those cases, therefore, it was their consideration, in estimating the damaperfectly indifferent to the public, whether ges to which the plaintiffs were entitled, the the representation was true or not, and, in all prospective injury which might accrue to the probability, the book would have obtained an partnership from the defendants' act. Greg. equal sale, whether it was a translation or an ory v. Williams, 1 C. & L. 568.

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VOL. IV.}

NEW-YORK, MARCH, 1846. [MONTHLY PART.

| trial, and in the arguments of the various CIRCUMSTANTIAL EVIDENCE.

counsel that have addressed you. And I In many of the trials in capital cases regard it as my duty, upon this occasion, which have lately taken place in this city. to say a few words to you upon that sub

ject, not merely because it has thus been all the profession must have been struck

| made a prominent topic of consideration, with the apparent prevalence in the pop- but because there is so common a sentiular mind of a singular error in regard ment on this subject existing in the comto the propriety of convicting on circum-munity at large, and as we have seen,

with some of the members of this jury. stantial evidence. Very many of the ju. I will therefore, gentlemen, if you will rors examined, have deposed that they give me your careful and patient attenwould not convict on such evidence under tion for a while, endeavor to make you any circumstances. The error doubtless understand the rules of law which are te arises from want of knowledge or reflec- l govern you in this regard.

The science of evidence is as profound tion upon the subject, but is none the less as any

as any in the whole circle of the sciences. injurious on that account.

It has, like any other, its immutable laws, On the trial of Polly Bodine, this was It requires as acute reasoning, as pro. 80 strongly exhibited, that the juilge in his

found thought, and as deep knowledge

as any other-namely, a knowledge of the charge to the jury, devoted much atten- human heart. It is one to which the ats tion to combatting it. The Herald gave tention of the wisest and best and ablest a very accurate report of the charge, but of men has been directed for years; and pitted that part which related to this, it is idle for any one to suppose that it

is, as it were by instinct-in a moment subject, as not being, we presume, gene

on that he can comprehend its whole range rally interesting to its readers. We have If we attempt to reason upon the subject obtained the report of that part of the without adequate knowledge, we will be charge of the learned judge, and now lay very apt indeed to err. As in astronomy, it before our readers, in the hope not only I he who 18 ignorant would laugh at the

idea that this world is round and passing that it will be interesting to the profes- through the air with a velocity exceeding sion, but that it will aid somewhat in dis- that of the cannon ball: an idea to him pelling so serious an error.

who understands that science, not only

demonstrably true, but evidence of a sys-"There is another matter that you are tem beautifully and wisely ordered; 80. to consider, which is an important, if not in the science of evidence, he who is enthe most important consideration in this tirely ignorant of its principles-he who case; and that is, the nature and kind of has never studied it-understands not its evidence by which and through which you laws will be in the same degree of dans are to arrive at a determination. There ger of erring in regard to its meaning and has been much said, during the progressite deductions. There has not bee much of this case, in regard to circumstantial attention directed to this subject by the evidence, not only while empanelling the people at large until within le last few jury in the first instance, when many were years, and that attention has been directe heard to say they would not convict on unfortunately rather to th danger litwy ruch evidence, but throughout the whole to arise from the applica si ilust Circumstantial Evidence. that have been established for so many very case. When witnesses have testified years, than to an understanding of the directly to certain facts, you have frereasons of those rules.

quently asked the question, “ Are you reOne thing is certain, that there is no lated to either of these families ?” in order kind of evidence, direct, positive, circum- to ascertair whether that positive evidence stantial or presumptive, that may not was or was not entitled to weight. You sometimes deceive us. It is an omniscient did wisely and well. It was proper that eye alone that can effectually guard against you should do so, and had you not done error. Finite minds, like ours, are always it, you would not have fully discharged liable to be deceived, whatever may be your duty. Now, it frequently occurs the character of the evidence on which that direct evidence, which is much more our judgment is to be formed. Whenever, easily fabricated than circumstantial, is therefore, any one talks of disregarding to be contradicted by circumstantial, and any kind of evidence because it is possi- circumstances are often called before ble that it may lead us into error, he casts courts to aid in doing away with the efto the wind the immortal mind which the fects of fabricated direct evidence. I Creator has given to us for the very pur- will give you a familar instance to illuspose of reasoning and drawing just con- trate my meaning: A will is produced clusions.

by a party, bequeathing to him certain Evidence is to be regarded as of two lands that had belonged to one of his ankinds, and each is liable to the danger of cestors. Witnesses are brought forward, which I have spoken. One class is direct who swear positively and directly to the or positive evidence-where, as in this fact that the will was executed by the case, we will suppose some person could party whose signature it bore, and execuhave come forward and said that he saw ted at a certain time—that they were prethe prisoner at the bar commit the mur- sent when the ancestor signed it and afder for which she is now indicted ; that fixed his seal, and that they signed their he saw the blow struck-saw the deceased names at the time. The chain of direct fall-saw the blood flow, and witnessed evidence is complete. One of the witthe departure of life. That would be nesses swears that when the ancestor expositive and direct evidence of the crime, ecuted the will he put a sixpence in the and it would be folly for you to tell me wax of which the seal was composed, for that because men have said these things, the very purpose of having it identified. or sworn positively, directly in such mat- The seal is broken in court, and there ters, and sworn falsely too, that therefore indeed is the sixpence : but the coin is of you will not believe direct evidence. the reign of George the Third, while the

In weighing direct evidence, you are to will is dated in the time of George the regard a great many things-first, what is Second. Who could for a moment doubt the capacity of the witness ? Was he able that this circumstance would be uf infi to see and to understand the transaction ? nitely greater value than the direct evi Is he able now to explain what he saw dence? It would betray the whole fraud and understood? Was he attentive or and forgery in the case. Now, these was he careless? Is he prejudiced or is things do occur, and show us the value he dispassionate and calm ? Has he some and importance of the evidence offered sinister motive that led him to fabricate by circumstances, even when there is dithat which he did not see ? All these rect evidence in the case. circumstances are to be weighed, and all! But it is important that we should unsuggest various matters that may eventu- derstand the precise nature and character ally impair the value of even direct and of the evidence that we are called on to positive evidence. We thus appeal to credit. CIRCUMSTANTIAL EVIDENCE is of circumstantial evidence to test the degree two kinds-one called certain, and the of credit to which that which is direct may other presumptive. Certain circumstantial be entitled; and it is universally true, in evidence is when a conclusion necessarily court and out of it, that we never take posi- follows from the facts. For instance, to tive evidence as to any fact, without look- take a familiar illustration :-We find an

de 1 i 1!1! stances either to support or apple lying upon the ground: we know, so contradict it. You have done it in this it is certain-There can be no doubt about Circumstantial Evidence. it-that that apple once grew upon a tree. Therefore it is that judges say, “Cir-that it did not grow upon the ground. cumstances cannot lie;" and whatever You find it lying in the street or on the counsel may say in the way of argument, grass. The conclusion necessarily follows, they err widely if they tell you the conthat that apple came from some tree. So trary. Circumstances cannot lie. Is there to-day, who has seen the sun rise ? Clouds any lie in the sun's being now, at high have obscured the sky since early dawn; noon, in the heavens and throwing light and yet, if the whole world should come upon us? Was there any lie about the before you, and tell you that the sun had fact that the apple did once grow upon a not risen, and swear to it, would you be- tree? Was there any lie in the conclulieve it? You judge from the circum- sion that somebody besides the deceased stance that the sun does rise every day, had put a bloody left hand on the left arm and that we have no light in the daytime of that body? No; these circumstances except that which the sun gives; and al- did not lie. The power of lying belongs though these clouds have obscured it, and to animate man-not to inanimate nature. no man can say he has seen it to-day, yet | But there is a danger-it is the danger I the conclusion necessarily, infallibly fol- have commented on the danger of erring lows, that the sun has risen, and you would in the conclusions we draw from circumbelieve it though all the world should de- stances. We may reason falsely. Our pose to the contrary. That is circumstan- prejudices or weakness may lead us to tial evidence, and it is called certain when | false conclusions. When, therefore, we the conclusion thus infallibly flows from establish the fact, we must take care that the circumstances. Shall we say now that the conclusion we draw is a truthful one, we do not believe this kind of evidence ? and then there is no danger. But the moWill we say that the sun has not yet risen ment a jury goes beyond the line where -that we are in midnight? We should the conclusion necessarily follows, they be indeed in a moral midnight if we dis- are in danger of giving birth to a falseregarded such evidence as that. And yet hood, and hence the necessity of great how often do we hear it said in the world, care and caution. we do not believe circumstantial evidence? There is another kind of circumstantial To apply these considerations to this very evidence known, and that is the kind case. Here is the body of Mrs. House- which is principally to govern us in this man found. Has there been any other case; and that is, presumptive circumstanevidence to establish more conclusively tial evidence-not that in which the conthe fact that it is the body of a person who clusion necessarily follows, but that in had once lived a person of mature age? which the conclusion is obtained by a You never saw that person. You never process of reasoning. And it is in regard had seen life or action in that body, yet to that kind of evidence that the danger you believe, you know, that that was once of erring is greatest. To illustrate my à living body. That is circumstantial position, let me refer you again to the case evidence-evidence that you cannot avoid of the bloody mark of the left hand on the believing, and it is regarded as certain. left arm. That was certain to this extent Another instance-one with which we are -it showed that somebody had been there, familiar in our books. The question ari- but the question was still undecided, was ses, was the death the result of suicide, or it suicide or murder ? In order to arrive was it murder! The difficulty was to at a conclusion on that point, we have yet ascertain whether there was any person to know that somebody was present at t e present at the time the death was inflict- time the death was inflicted. Some one ed. There was found upon the left arm might have stepped in while the suicide of the deceased, the mark of a bloody left was in his last moments, or mi ht have hand. It could not have been her own. been present even when the act was perThere was certainty about that. The fact petrated, and made the mark in an attempt was thus, by circumstances, established either to aid or prevent the dred. The that somebody besides the deceased had conclusion, therefore, that any rerson was made this mark. That was a certain con- present at the time of the dep, and parclusion flowing from these circumstances. I ticipating in it, did not neces. rily flow

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