Common Pleas-Wright v. Tallis, and another. Sir Thomas Wilde replied. Cur. ad. vult. TINDAL, C. J., now delivered the judgment of the court. The plaintiff declared in an action upon the case for the infringement of the copyright of a certain book, entitled "Evening Devotions, or the Worship of God in Spirit and in Truth for every day in the Year, from the German of C. C. Sturm, author of The Morning Devotions,"" of which copyright the plaintiff alleged himself to be have a property in a work which he has no right to publish. The plaintiff here had no such right, and cannot, therefore, complain of any injury done to the same. The plea disclosed a fraud committed by the plaintiff on the public, in order to increase the sale of his work; the plea states, and it must be taken by the demurrer to be admitted as true, that the plaintiff, intending to defraud the public, and to cause them to pay sums of money for copies, under the belief that they were purchasing translations of an original work of Sturm, caused Huish to write the book, and 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 8 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 acter that its publication would not be lawful, the author can have no property in the work, and no action can be maintained in respect of it. In Walcot v. Walker, 7 Ves. 1, the Lord Chancellor says, "If the doctrine of Lord Chief Justice Eyre is right, and I think it is, that publications may be of such a nature that the author can maintain no action at law, it is not the business of this court, even upon the submission in the answer, to decree either an injunction or an account of the profits of 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 that which he calls his property, but which the policy of the law will not permit him to consider his property. professes the object of it was to induce the public to believe thoroughly and entirely the book was really a translation of the work published by the said Christopher Christian Sturm; and the plaintiff falsely and fraudulently represented such to be the case to all the subjects of the Queen who had purchased the same. The plea then goes on to allege, that these statements and representations made by the plaintiff were false and fraudulent to his own knowledge. To this plea there was upon the record, is whether the plaintiff can have a right of action against the defendants for printing this work, or, in other words, 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 themdistinguishable 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 instance given of the Castle of Otranto, professing to be translated from the Italian, and such was the case of innumerable works published under assumed names, such as books of fiction, voyages and travels, or copies of works of fiction or romance, or even works of science and instruction. For, in all these instances, the misrepresentation is innocent and harmless; there is not found in any one of these cases any serious design on the part of the author to deceive the purchaser, or to make gain and profit from it by a false representation. The purchaser, for any thing which appears to the contrary, would have 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, in most of the cases which may be put, the statement is not calculated in its nature to deceive any one, but is, on its very first glance, apparent. In those cases, therefore, it was perfectly indifferent to the public, whether the representation was true or not, and, in all probability, the book would have obtained an equal sale, whether it was a translation or an sale of which produces such consequences, or that he is capable of maintaining an action in respect of its infringement. Cases in which a copyright has been held not to exist were works that were subversive of good order, virtue, morality, or religion: they do not bear directly on the case before us, but they have so far an analogy with it, that the rule which denies the existence of copyright in these cases is a rule established for the benefit and protection of the public. We think, for these reasons, the defendants are entitled to the judgment of the court. Judgment for defendants. LIBEL. In a case for a libel against a copartnership, the jury were instructed to take into their consideration, in estimating the damages to which the plaintiffs were entitled, the prospective injury which might accrue to the partnership from the defendants' act. Gregory v. Williams, 1 C. & L. 568. trial, and in the arguments of the various counsel that have addressed you. And I regard it as my duty, upon this occasion, to say a few words to you upon that submade a prominent topic of consideration, ject, not merely because it has thus been In many of the trials in capital cases which have lately taken place in this city, all the profession must have been struck 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 circumstantial evidence. Very many of the jurors examined, have deposed that they would not convict on such evidence under any circumstances. The error doubtless arises from want of knowledge or reflecthe subject, but is none the less tion upon munity at large, and as we have seen, I will therefore, gentlemen, if you will with some of the members of this jury. give me your careful and patient attention for a while, endeavor to make you understand the rules of law which are to govern you in this regard. The science of evidence is as profound as any in the whole circle of the sciences. It has, like any other, its immutable laws, On the trial of Polly Bodine, this was It requires as acute reasoning, as proso strongly exhibited, that the judge in his found thought, and as deep knowledge charge to the jury, devoted much atten- human heart. It is one to which the atas any other-namely, a knowledge of the 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 omitted that part which related to this it is idle for any one to suppose that it subject, as not being, we presume, gene- that he can comprehend its whole range. is, as it were by instinct-in a momentrally 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 idea that this world is round and passing he who is ignorant would laugh at the 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. -"There is another matter that you are to consider, which is an important, if not the most important consideration in this case; and that is, the nature and kind of evidence by which and through which you are to arrive at a determination. There has been much said, during the progress of this case, in regard to circumstantial evidence, not only while empanelling the jury in the first instance, when many were heard to say they would not convict on such evidence, but throughout the whole who understands that science, not only demonstrably true, but evidence of a system beautifully and wisely ordered; so in the science of evidence, he who is entirely ignorant of its principles-he who has never studied it-understands not its laws-will be in the same degree of dan◄ ger of erring in regard to its meaning and its deductions. There has not bee much attention directed to this subject by the people at large until within e last few years, and that attention has been directe unfortunately rather to th danger Bely to arise from the applica folos Circumstantial Evidence. that have been established for so many years, than to an understanding of the reasons of those rules. very case. When witnesses have testified directly to certain facts, you have frequently 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 possible that it may lead us into error, he casts to the wind the immortal mind which the Creator has given to us for the very purpose of reasoning and drawing just conclusions. circumstances are often called before courts to aid in doing away with the effects of fabricated direct evidence. I will give you a familar instance to illus trate my meaning: A will is produced 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, and it would be folly for you to tell me that because men have said these things, or sworn positively, directly in such matters, and sworn falsely too, that therefore you will not believe direct evidence. ecuted the will he put a sixpence in the wax of which the seal was composed, for the very purpose of having it identified. The seal is broken in court, and there indeed is the sixpence: but the coin is of the reign of George the Third, while the will is dated in the time of George the Second. Who could for a moment doubt that this circunstance would be of infi nitely greater value than the direct evi dence? It would betray the whole fraud and forgery in the case. Now, these things do occur, and show us the value and importance of the evidence offered by circumstances, even when there is direct evidence in the case. In weighing direct evidence, you are to regard a great many things-first, what is the capacity of the witness? Was he able to see and to understand the transaction? Is he able now to explain what he saw and understood? Was he attentive or was he careless? Is he prejudiced or is he dispassionate and calm? Has he some sinister motive that led him to fabricate that which he did not see ? All these 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 ii ir stances either to support or apple lying upon the ground: we know, Jo contradict it. You have done it in this it is certain-there can be no doubt about Circumstantial Evidence. Therefore it is that judges say, “Circumstances cannot lie;" and whatever counsel may say in the way of argument, they err widely if they tell you the contrary. Circumstances cannot lie. Is there any lie in the sun's being now, at high noon, in the heavens and throwing light upon us? Was there any lie about the fact that the apple did once grow upon a tree? Was there any lie in the conclusion that somebody besides the deceased had put a bloody left hand on the left arm of that body? No; these circumstances did not lie. The power of lying belongs to animate man-not to inanimate nature. But there is a danger-it is the danger I have commented on-the danger of erring in the conclusions we draw from circumstances. We may reason falsely. prejudices or weakness may lead us to false conclusions. When, therefore, we establish the fact, we must take care that the conclusion we draw is a truthful one, and then there is no danger. But the moment a jury goes beyond the line where the conclusion necessarily follows, they are in danger of giving birth to a falsehood, and hence the necessity of great care and caution. Our it-that that apple once grew upon a tree -that it did not grow upon the ground. You find it lying in the street or on the grass. The conclusion necessarily follows, that that apple came from some tree. So to-day, who has seen the sun rise? Clouds have obscured the sky since early dawn; and yet, if the whole world should come before you, and tell you that the sun had not risen, and swear to it, would you believe it? You judge from the circumstance that the sun does rise every day, and that we have no light in the daytime except that which the sun gives; and although these clouds have obscured it, and no man can say he has seen it to-day, yet the conclusion necessarily, infallibly follows, that the sun has risen, and you would believe it though all the world should depose to the contrary. That is circumstantial evidence, and it is called certain when the conclusion thus infallibly flows from the circumstances. Shall we say now that we do not believe this kind of evidence? Will we say that the sun has not yet risen that we are in midnight? We should be indeed in a moral midnight if we disregarded such evidence as that. And yet how often do we hear it said in the world, we do not believe circumstantial evidence? To apply these considerations to this very case. Here is the body of Mrs. Houseman found. Has there been any other evidence to establish more conclusively the fact that it is the body of a person who had once lived-a person of mature age? You never saw that person. You never had seen life or action in that body, yet you believe, you know, that that was once a 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 de tand parclusion flowing from these circumstances. ticipating in it, did not necesarily flow There is another kind of circumstantial evidence known, and that is the kind which is principally to govern us in this case; and that is, presumptive circumstantial evidence-not that in which the conclusion necessarily follows, but that in which the conclusion is obtained by a process of reasoning. And it is in regard to that kind of evidence that the danger of erring is greatest. To illustrate my |