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legal relationship of the party to the case and the per- warrant is issued. It has been so held in the case of petrator. But though not strictly an accomplice, Queen v. Brooks, 1 Denis. 217. This was an indictinasmuch as she is, in a moral point of view, impli- ment upon 9 Geo. IV, ch. 69. By the fourth section of cated in the transaction, it would be proper for the the statute it was declared: “The prosecution for jury to consider that circumstance in its bearing upon every offense punishable by indictment, by virtue of her credibility.” Texas Court of Appeals, June 19, 1880. that act, shall be commenced within twelve calendar Watson v. State of Texas. Opinion by White, P. J. months after the commission of the offense." The CONSTITUTIONAL LAW - FORMER CONVICTION – AS
offense was committed December 4, 1845. The inforSAULT AND MANSLAUGHTER. - The defendant commit
mation before justices and warrant were on December ted a violent assault upon one Morton, March 3d, 1879,
19, 1815. Brooks was apprehended September 5, 1816, and on the fourth day of March was prosecuted before and Gibson, October 21, 1846. The indictment was the municipal court of Lewiston, and convicted of
preferred April 5, 1847. The question was reserved for assault and battery. On the twenty-third day of
the opinion of the judges whether the prosecution was March said Morton died of the injuries inflicted by commenced in time. They all concurred in holding the defendant, and the defendant was thereupon in
that the prosecution was commenced within twelre dicted for manslaughter, and when arraigned pleaded calendar months after the commission of the offense. the former conviction of assault and battery in bar.
To the same effect see 1 East's P. C. 186; Rex v. WalHeld, that the plea was no bar to the indictment. The
lace, R & R. C. C. 369; and Rex v. Phillips, Russ. & Ry. general rule is that if the first indictment were such as
369. U.S. Cir. Court, N. D. Georgia, July, 1880. State the prisoner might have been convicted upon by proof
of Georgia v. Post. Opinion by Woods, C. J. of the facts contained in the second indictment, an acquittal or conviction on the first indictment will be
OBITUARY. a bar to the second. 4 Bla. Com. 336; Rex v. Vandercomb, 2 Leach's C. C.708; Stark. Cr. Pl. 355 (1st Am. ed);
LORD CHIEF BARON KELLY. Commonwealth v. Roby, 12 Pick. 496; 1 Chit. Cr. Law,
N the recent death of Sir Fitzroy Kelly, Lord Chief 453. This general rule is, however, subject to this exception. When, after the first prosecution, a new fact
oldest judge. He was born in 1796. He had neither a supervenes, for which the defendant is responsible, which changes the character of the offense, and to public school nor a university education. He had held
the offices of Solicitor-General and Attorney-General gether with the facts existing at the time constitutes a new and distinct crime, an acquittal or convictiou of
and had sat in Parliament. He began his legal career the first offense is not a bar to an indictment for the critic of pleadings, but was heartily in favor of con
as a special pleader, and was all his life famous as a other distinct crime. Case of Nicholas, Foster's Cr. L.
solidation and codification. He brought in a bill in 64; Burns v. People, 1 Park. C. C. 183; Commonwealth
Parliament to abolish capital punishment in all cases v. Evans, 101 Mass. 25; State v. Hattabough, Cent. L. J., Aug., 1879, 87 (S. C. Indiana). While the defend- except treason and murder. When at the bar his earnant under the Maine statute may be convicted on the ings amounted to £25,000 annually, an income exceeded indictment of assault and battery, on failure of proof The Times says: “As a judge, the Lord Chief Baron
by none of his contemporaries except Lord Selbourne. that death resulted from the injuries inflicted, still he may protect himself from being twice in jeopardy for showed the soundness for legal knowledge for which that offense by pleading in bar the former conviction bis career was a guaranty. His courtesy to those who of the crime of assault and battery embraced in the appeared before him was unexceptionable. But he indictment and not guilty of manslaughter, and then
was a very slow judge, who asked numberless quesif convicted of manslaughter he shall have judgment tions about comparatively unimportant dates and therefor. If acquitted of manslaughter he shall have facts; and while the matter of his decisions was selthe benefit of his plea in bar as to assault and battery.
dom impeached, his Division got through less work 2 Hale's P. C. 255, 392; Arch. Cr. Pl. 352; Common
than any other, and was less popular than any with wealth v. Curtis, 11 Pick. 133; Stark. Cr. Pl. 370.
suitors. He had some difficulty in hearing counsel, Maine Supreme Judicial Court, January, 1880. State of and more in making himself heard. His defects as a Maine v. Littlefield. Opinion by Libbey, J.
judge, indeed, were largely physical defects, due to
the infirmities of age. His mind remained clear and GRAND JURY - IRREGULARITY IN DRAWING JUROR
his determination unshaken almost to the very end, DOES NOT VITIATE ACTS OF JURY — STATUTORY CON
and one of his acts a day or two before his death was STRUCTION. — The provisions of the second section
to write a long letter of advice to a learned colleague." of the act of Congress of June 30, 1879, prescribing the He was a bounteous dispenser of hospitality, very fond mode in which jurors in the Federal courts shall be of society, a great converser, a warm friend and a bitter drawn is mandatory; with this qualification, however,
enemy. It is possible that with him the title of Lord that an honest intention to conform to the statute and
('hief Baron may perish, for under the new judicature carry out its provisions in good faith is all that is re
act the Queen has power, by recommendation of a quired. Where a grand jury was drawn under the
council of judges, to abolish the title on the post beprovisions of this act, and the name of one of the coming vacant. The Solicitors' Journal says: “In rejurors who assisted in finding the indictment was not
spect to longevity, Sir Fitzroy Kelly kept up the traput into the box by any competent authority, nor
ditions of his office. Only nine appointments of Chief drawn from it, and there was no imputation that such Baron have been made during the last ninety years. name appeared in the venire through bad faith, held,
Sir William Alexander was appointed at the age of to be a mere irregularity, which would not vitiate the
sixty-three, resigned at seventy, and died at eightyaction of the grand jury. U. S. Cir. Ct., S. D. Ohio,
one. Lord Lyndhurst, who occupied the post in the May, 1880. United States v. Ambrose. Opinion by
interval between his first and second Chancellorships, Swayne, C. J.
attained the age of ninety-two. Lord Abinger was PRACTICE
appointed at sixty-five and died at seventy-five. Sir MENCES - REMOVAL OF CAUSE. -- A criminal prosecu- Frederick Pollock was appointed at sixty-one, retion is commenced, within the meaning of section 643 sigued at eighty-three and died at eighty-seven ; and of the Federal Revised Statutes, relating to the re- Sir Fitzroy Kelly was appointed at seventy and died moval of such prosecution from a State to a Federal at eighty-four. The title of Chief Baron appears to court, as soon as a warrant has been issued. Generally have been first used during the reign of Edward II. a criminal prosecution is commenced as soon as the | Walter de Norwich was appointed a Baron of the Exe
shequer in 1311, and received a fresh patent in the fol- inal Offense" (Etendue du pouvoir Judiciare quant aux owing year on the death of Roger de Scotre, the then délits criminels), and “ Legal Effects of a Criminal senior baron, and in the patent granted to his successor Sentence beyond the territorial limits of the State he is described as nunc Capitalis Baro.' He retired where such Sentence is pronounced” (Effets d'une from the court during his tenure of the office of Treas- sentence criminelle hors des limites territoriales où elle urer of the Exchequer, but returned to the bench in a été prononcée). The subjects “ Consular Jurisdic1317, and was then distinctly appointed as • Capitalis tion in Christian and non-Christian Countries” and Baro.'"
“ Extradition," are most thoroughly discussed by the
commentator, with an unusual wealth of citations, and NEW BOOKS AND NEW EDITIONS. with learned textual references to recent State papers,
adjudications and authorities. SEYMOUR'S CARRIERS OF PASSENGERS.
This volume possesses the merit of a most excellent
“table des matières," referring to the theme of each The Law of Carriers of Passengers, illustrated by Leading paragraph, which is also noted in the margins of the Cases and Notes. By Seymour D. Thompson. St. Louis :
pages -- a practice not only conducive to clearness of F. H. Thomas & Co., 1880. Pp. Ixiv, 619.
style, but of great assistance to the reader. The typoTHIS work is designed on the same plan as the same graphical work is excellent.
author's recent work on Negligence, of which we As America, both before and since its independence have spoken very highly, and which more intimate of European domination, has done so much toward a acquaintance leads us to value more and more higbly practical building up of the modern law of nations, it every day. The present volume contains 49 leading seems particularly fit that American authors should cases. The division of subjects is as follows: the obli- enter the domain of public law. It is a pardonable gation to receive and carry; when the relation of car- source of gratification that another American now folrier and passenger subsists; the obligation to carry lows so ably in the footsteps of Wheaton. according to advertisement or contract; the obligation to furnish safe and convenient stations and approaches;
CORRESPONDENCE. liability for negligence; contributory negligence; imputed negligence; police duties; regulations of carri
RELEASE OF DOWER. ers; liability for assaults by his servants; contracts limiting his liability for personal injuries; use of another's Editor of the Albany Law Journal: means of transportation- liability for consequential
If your correspondent, “F. L. M.,” will turn to the injuries; liability for damage by fault of connecting
case of Gillilan v. Swift, 14 Hun, 574, he will find that lines; street railway companies; carriers by water; his question concerning the omission of the usual liability in respect to baggage; remedies, procedure, words, “dower and right of dower,” has been directly and damages. The details of the execution are simi- | answered by the courts of this state. While your anlar to those in the work on Negligence, and the work swer, without reference to this case, is right in its reis marked by the same excellencies of selection, anno- sult, it seems to me, in one respect, to fall short of tation and general editing. We may well economize your usual accuracy of statement. The deed does not, space and time by saying that we regard these works it seems to me, “carry the interest of the wife in the of Mr. Thompson as among the most conscientiously premises," as you suggest, but it rather estops her from and intelligently executed, the most interesting, and asserting an interest. The difference may be purely the most useful practical law books ever, issued from theoretical, but it nevertheless exists. the American press. The volume, like its predeces
I am, sir, faithfully yours, sors, is admirably printed.
FRANCIS LYNDE STETSON.
NEW YORK, Oct. 11, 1880.
sur l'histoire des Progrès du Droit des Gens de Henry As a confirmation of your answer to the query of Wheaton, par William Beach Lawrence. Tome quat
“F. L. M.,” page 298, vol. 22, see Elmendorff v. Lockrième. Liepzig, F. A. Brockhaus, 1880.
wood, 57 N. Y. 322.
H. E. MORSE. This edition of Mr. Lawrence's commentary on
CLAYTON, Jefferson Co., N. Y., Oct. 11, 1880. Wheaton must be well received by a distinguished circle of the legal profession — those who devote them. [We think our theory is the right one. It is diffiselves to the study of public law. Wheaton's con- cult to conceive of a deed that shall estop a married tributions to the law of nations are destined to a
woman, in the absence of fraud on her part, unless permanent place amidst the best of the text on, that it effectually conveys her interest, and if it conveys subject. “The Elements of International Law" and "The History of the Law of Nations” are deservedly her interest there is no need of resorting to the famous; and Mr. Lawrence's commentaries — written theory of estoppel. Our first correspondent will in the "diplomatic language"-must add to this wide find that the reference of our second correspondent celebrity.
strongly confirms our view.-ED. ALB. L. J.] Few departments of modern scientific thought have advanced more rapidly than the law of nations; and Connect SOLUTION OF “MIDSUMMER'S” PROBLEM. this progress needs to be constantly noted and to have attention directed to it. Mr. Lawrence's work is, in this Editor of the Albany Law Journal : respect, a most valuable addition to Wheaton, but Since “Midsummer's" problem has provoked so it is also, in many other respects, a valuable addition.
much antagonism and contradiction, I desire to keep The present volume of the commentaries is concerned the ball rolling, and suggest another solution, which, with the second part of Wheaton's “ Absolute Inter- if not “capable of mathematical demonstration,” national Rights of States," known as “ The Rights of would probably be as satisfactory to all parties as any, Civil and Criminal Legislation," and particularly with and is certainly as practicable, viz. : 1st, payment of the subdivision, “ Consular Jurisdiction” (Juridiction costs; and, 20, residue to the attorneys. I disclaim Consulaire), “Independence of the State as to its Judi- all novelty.
Yours truly, cial Power” (Indépendance de l'Etat quant au pouvoir
ONE OF THEM. judiciaire), “Extent of the Judicial Power over Crim- CINCINNATI, Oct. 5, 1880.
THE..ow isso decisions were handed down Tuesday, there be notede majority pre now, the jury may beindisi
AN INDIAN SUMMER PROBLEM.
appears to be incomplete. There is no such alternative Editor of the Albany Law Journal:
in England. In English criminal procedure the jury
consists of 12 men, who must be unanimous in their Reading the answers of your correspondents to “Midsummer's” problem, suggests to me to present to
verdict of guilty or not guilty; when not being able to
agree, after hours of wrangling together, they are disthem and you the following: A being the owner of three lots, X, Y and Z, exe
missed, thereby occasioning a new trial. In Scotland
the thing is conducted more in accordance with human cutes a mortgage upon them all, which is duly re
nature. The jury is composed of 15 men, who, if not corded. He then alienates them as follows: 1st lot X to B; 2d lot Y to C; 3d lot Z to B. B then alienates
unanimous, may decide by a majority, such as 8 to 7, his two lots as follows: 1st lot Z to D; 2d lot X to E.
or possibly 14 to 1; by which means a juror with
twisted notions, resolved on being singular, as often Upon foreclosure of the mortgage, in what order should the lots be sold ?
D. M. W.
happens, is unable to thwart the ends of justice. The CAMBRIDGE, N. Y., Oct. 4, 1880.
decision by a majority is accepted without demur. In the trial of civil cases, a latitude is also allowed. The
jury consists, as in England, of 12 men; but if they NEW YORK COURT OF APPEALS DECISIONS. have been in consultation for three hours a majority
of nine is sufficient for a verdict. If after pine hours 'HE Oct. 12, 1880:
missed. These Scotch arrangements seem to be in all Judgment affirmed with costs – Atlantic State Bank, respects more rational than the practice prevalent in in Brooklyn v. Savery and ors., impleaded; Argotsinger | England and Ireland. No one ever heard of a miscarv. Vines; The People ex rel. Larrabee v. Mulholland, riage of justice, civil or criminal, in Scotland, owing police justice, etc. Judgment reversed and new trial granted, costs to abide event - The Trustees of
to decisions by a majority. The accurate and imparForrestville Baptist Society v. Farnham and ors.; Wine
tial method of summoning Scotch jurors, special and gar v. Fowler. Judgment affirmed, and case re- common, in itself merits commendation. manded for the proper sentence to the court of sessions of the county of Albany The People v. Apropos of Judge Hammond's learned decision and Cronin. -Order affirmed with costs – In re Church- note, in United States v. Coppersmith, ante, 250, we ill, to vacate, etc.; Tompkins v. Greene; Phinney v. Orth; Schell (Rodman) v. Devlin and ors., executors;
call attention to the following extract from the WestAmmerman v. Peck; Ammerman v. Moore; In re At
minster Review, Vol. XX, p. 72, A. D. 1838; 1 Am. Jur. torney-General v. The Guardian Mutual Life Insurance 253: “The favorite classification of offenses is into Company. - Orders of General and Special Terms felonies and misdemeanors; though these epithets give reversed with costs, and motion granted, costs to be uo more idea of the nature of the offenses, to which paid out of the fund - The People v. The National they are applied, than if two Chinese words were used Trust Company of New York. Order of General in their stead. A very vague idea of the quantum of Term reversed and judgment on report of referee affirmed with costs - Hamlin v. Sears.
punishment, which may be awarded to the offender, is the full extent of the information conveyed by them;
for some misdemeanors are punished as severely as NOTES.
many felonies, always excepting that iniquitous ad
junct to the punishment of all felonies, the forfeiture R. JOHN D. PARSONS, JR., of this city, has in of goods and lands. Should an ignorant man wish to press, to be issued in the course of three weeks, a
know something more of the meaning of these terms, volume of National Bank Cases, edited by Irving he may learn that a starving child who steals a pennyBrowne, editor of this JOURNAL, on the same plan as loaf is guilty of a felony, while a man who forges the Mr. Thompson's volume of like cases. The forthcom- mark of the Goldsmith's Hall on plate to any amount ing volume will contain all the cases to date since the is only guilty of a misdemeanor. The man who adformer volume, and also a copy of the National Bank- ministers an unlawful oath is guilty of felony, but the ing Act, with sectional references to the cases in the
man who falsely swears away the life of another is two volumes. - In our note last week of the com
only guilty of a misdemeanor. An apprentice, who plaints of the Chicago Legal News, on Judge Harker's appropriates a shilling to his own use received on his decision prohibiting a woman from serving as master master's account, commits a felony, while the man in Chancery, we distinctly wrote the name of the
who maliciously destroys the dam of a mill-pond is editor as “Mrs." Bradwell, but the compositor or only guilty of a misdemeanor. So much for classificaproof-reader, wiser in his generation than the editor, tion and consistency." carefully corrected it to “Mr.” We hasten to apologize before the News annihilates us.
From the same volume of the Jurist, p. 254, we ex
tract the following form of the advocate's oath preTrial by jury, that much-honored palladium of civil scribed by law, adopted hy the representative council rights, differs materially in the two countries. A of Geneva, June 20, 1834: “I swear before God, to be Scottish criminal trial is a model of fairness and delib- faithful to the Republic and Canton of Geneva; never eration. The accused is in good time served with a to swerve from the respect due to the tribunals and to very precise indictment, along with a list of the wit- the authorities; not to advise or maintain any cause nesses to be used in evidence against him. At the trial which does not appear to me to be just or equitable, the jurors are chosen by ballot, and each is furnished unless in the defense of an accused; not to employ with a printed copy of the indictment, with paper, knowingly, in order to maintain the causes which shall pen and ink to write notes of evidence as it proceeds. be confided to me, any means contrary to the truth, The trial begins by the clerk of the court reading the and not to attempt to deceive the judges by any artiindictment, by which means the exact nature of the fice, or by any false exposition of facts or of law; to accusation is openly and clearly defined, and there is abstain from all offensive personality, and not to adno need for a lengthened prefatory harangue by coun- vance any fact against the honor and the reputation sel for the prosecution. The indictment being read of the parties, unless it be indispensable to the cause, the evidence is at once proceeded with. Any one can with which I shall be charged; not to encourage the compare this precision with what occurs, and is occa- commencement or the carrying on of any process, sionally complained of, in England. A Scottish jury from any motive of passion or of interest; and not to may give a verdict of guilty, not guilty, or not proven, refuse from any personal considerations, the cause of this last alternative being adopted when the evidence the feeble, the stranger, or the oppressed.”
Friars, whose privilege of sanctuary is pernicious to The Albany Law Journal.
the best interests of society," it seems to us he sac
rifices fact to a clever expression. Mr. Thompson ALBANY, OCTOBER 23, 1880.
complains of the unfitness of a jury, through inex
perience and ignorance, to pass on particular states CURRENT TOPICS.
of facts. Well, where will he get his Admirable
Crichton of a judge who is any better fitted ? The E have noted two recent utterances from the one as well as the other must be instructed by ex
west, one in reference to the bench, the other pert testimony for the occasion. We dissent from to the jury. Mr. Gantt, in the current number of Mr. Thompson's view that a judge is much better the Southern Lar Review, in an article entitled “Ju- qualified to weigh evidence than a jury. His very dicial Nominations," says some things to which we "expertness" disqualifies him. Let us ask Mr. heartily assent. His belief that judicial nominations, Thompson why, if judges are so much fitter to pass if left to the bar, would without exception be good, on questions of fact than juries, it is deemed necescoincides with our own. "The bar naturally and sary in so many communities to prohibit the judges necessarily desires to see the best of its number ad- by legislative enactment from expressing their opinvanced to the place of honor.” “Not only is the ion on the facts to the jury? The truth is that bar the most competent to judge of qualifica- judges and referees are very poor arbiters of fact, and tions for the judgeship, but it is more directly and that juries are right nineteen times out of twenty, Fitally interested than any class of the community and we believe, even ninety-nine times out of a hunin the selection for the bench of him who possesses
dred. Such is judicial experience and testimony. them in the fullest measure." We would like to Do not the best judges shrink from passing on dissee judicial nominations always made by the bar. puted facts? Is there a judge on the bench who would But we do not agree with Mr. Gantt that "the prac- prefer to submit his right of person and property in a tice of electing judges by popular vote is essentially case of conflicting testimony to a judge rather than a vicious.” We think it is theoretically right that
jury? We never heard of one, and we believe if the citizen should elect his judge as well as his law- we could poll the bench we should hear an almost maker or his governor. We do not know why the unanimous voice in favor of the theory of the jury principal should directly appoint his own legislative system. In truth, Mr. Gantt's and Mr. Thompson's and executive officers, and in the selection of judges present utterances are simply those forms of speech be compelled to express his choice only through an in which intelligent men are prone to indulge about agent of his own selection. And in practice we be- the time when they are temporarily tired of a relieve that elected judges have generally been fitter public, fear that men are not fit to rule themselves, than appointed judges. Such certainly is the history and yearn for a strong government. of our State. Undoubtedly we shall have Cardoza and Barnard cited against us, but we reply that the A correspondent, in commenting on our resame influences which produced their election would marks on the comparative number of reversals in probably have produced their appointment, and the New York and in the Illinois Supreme Court, when they were elected they were unexceptionable calls our attention to the fact that the law under men. Certainly abler men have rarely sat on the which Bradwell's Reports are issued requires that bench in New York city. Mr. Gantt's idea springs no opinions should be published except in cases of
from a distrust of the people which we believe to be reversal. We were aware of this fact, and our point • unfounded.
was that the reversals in our Supreme Court in three
years would not fill six volumes. We agree with The same distrust of the people is disclosed in our correspondent that the limitation of the reports Mr. Thompson's dedication to his excellent little to reversals is inexpedient. Our correspondent has book, “Charging the Jury." Although the author ascertained that judging from one district "fully is a contingent judge — we hope to be elected two-thirds of the cases are affirmed.” Our recoland although his book is dedicated to an excellent lection of statistics is that in our court at least threejudge, we hardly think there is any necessity or ex- quarters are affirmed. cuse for his somewhat studied attack upon the jury system, and his expressed preference for a one-man Two rather novel points as to the rights of authors jury, especially as he admits that there is no proba- in their literary productions have been recently bility of any radical change of system. Mr. Thomp- ruled, one in England, the other in this country. son complains of the uniform verdicts against Miss Genevieve Ward, it seems, has bought from corporations. In our opinion they are quite right. Messrs. Merrivale and Grove the privilege of acting If it were not for the jury, great corporations, like for a term of years a play called “Forget me not." railroads and insurance companies, would oppress Miss Ward has seen fit, in putting the play upon the community by their recklessness and unconsci- the stage, to omit a single character. Messrs. Merentiousness. The jury are an indispensable counter- rivale and Grove sued to restrain her from making acting influence like the different metal in a this omission, and Lord Coleridge has denied the chronometer. When Mr. Thompson says the pro- application. The London News asks: “If the manvince of the jury "is in many cases a judicial White ager of a theatre has a right to alter a play which
VOL. 22.- No. 17.
he has purchased the privilege to represent for a ing – viz., starvation from every thing but cold term of years, why might not a publisher be al- water, for a period of one, two, or any number of lowed to improve, according to his notions of im- days under forty. The thing can be put in force provement, the novels, the poems, and the scientific instantly and everywhere, and then behold the treatises bought by him?” This is indeed a curious result! The present continually increasing expense point. The probability is that the play is the better of prisons to the community would be cut down to for the omission, and that the author would be glad, generally three days, in place of three years ; while after an experience of the restoration, to consent to the hitherto too well-fed vagabonds would be reabide the manager's discretion. It is said that Anna turned to society in a purer state of physical conDickinson is about to bring a similar suit to restrain stitution, and with a lively presentiment, enforced Fanny Davenport from making changes in her play, by Nature herself, that they must work honestly in An American Girl," which the latter is acting. future if they would eat.” On this the London Law
Times remarks: “ The only weak point in the sysThe other point is as to the copyright of Irving's tem appears to be the absence of any thing cornieces in his works. We have commented on this case responding to hard labor in aggravated crimes, and before. See 21 Alb. L. J. 162. It will be remem- this might be supplied by a judicial direction to the bered that the copyright having expired, a firm pre- gaoler to hold at the keyhole of the cell door, durpared to issue a volume of selections from this ing certain specified hours, à savoury dish, the author's writings, entitled “Irving's Works.” The odor of which will pervade the cell. The nature of Misses Irving and their publishers, George P. Put- the dish should be varied in proportion to the serinam's Sons, sought a permanent injunction, claim- ousness of the crime and the tastes of the criminal. ing that after the expiration of his copyright, an Offenders of the deepest dye should starve amid the author has, or his heirs have, a common-law fumes of roast goose, and Scottish criminals should right to control the publication of his works. They suffer in the midst of an atmosphere of haggis." also claim a trade-mark right to the title “Irving's Carrying out this idea, an odor of apple pie should Works.” The suit has just been decided in favor of tantalize the Yankee, the Southerner should be the defendants. Beach, J., said: “I consider it made to smell of hog and hominy, while the native settled by authoritative adjudications that an au- of the western plains should snuff the scent of thor has no common-law right of property in literary buffalo or
grizzly” steak. Would not this be an works, after publication, id est, by printing and sale; effective treatment for tramps? We should not like and even had it existed, the right was taken away to live in a country controlled by Carlyle, Ruskin by the act of Congress relating to copyright. Palmer and Professor Piazzi Pyramid Smyth. v. De Witt, 2 Sweeny, 547; S. C., 47 N. Y., 532, 539; Dudley v. Mayhew, 3 N. Y. 912; Millar v. Taylor, 4 Burr. 2303. The defendants' use of the title
NOTES OF CASES. * Irving's Works' does not interfere with any legal right of the plaintiffs. It is true they have applied TN Dicks v. Brooks, 43 L. T. (N. S.) 71, the English
Court of Appeal, it was held that a chromoit for many years to the author's revised, corrected, and complete writings. But the defendants' use printed Berlin woolwork pattern is not a piratical does not mislead the public, because the application
copy of an engraving from the same design. The picture in question was Millais' famous “
“Huguenot." is to the author's productions, although not revised
The court said, per James, L. J.: “No doubt the or corrected, and in some instances incomplete. Nevertheless, what the defendants print and sell are
art of the engraver is often of the very highest. in truth the works of Washington Irving as they
character of art, as in the print before me. It is originally appeared. They made no effort to induce
difficult to conceive any thing of much higher skill the public to think their publication to be that of
or art than that which has by a wonderful combinathe plaintiffs. This designation could not be the
tion of lines and touches reproduced the very texture
and softness of the hair, the very texture and softexclusive property of the plaintiffs unless it marked
ness of the dress, and the wonderful look of love a published work which they had the exclusive
and admiration in the eyes of the young lady lookright to print as against the defendants. This right
ing up at her lover — it is difficult to conceive, as I they do not possess, and any one lawfully printing
That art or the writings of Irving may designate them "Irving's say, any art or skill greater than that. Works.' The name seems merely descriptive of an
skill was the thing I believe, and am satisfied, which article of trade, of its qualities, its ingredients, and
was intended to be protected by the acts of Parliacharacteristics."
ment, and what we have to consider is whether the
other thing which is before us is a copy of the enProfessor Piazzi Smyth, the celebrated astronomer, graver's work. Now, as to this woolwork pattern, and discoverer of the truc inwardness of the Great I am satisfied upon the evidence that its production Pyramid, has invented a method of criminal pun- must have been aided by the man who produced it ishment, combining efficiency with economy, which having before him a copy or a photograph of Mr. will commend itself to statesmen. He says: “Dr. Brooks' print in some shape or other, because the Tanner's mode of fasting furnishes us with the design is reproduced, the attitude is the same, and identical arm which the law has so long been in in some things in which the print differs from the want of, prompt, salubrious, and mentally improv- picture, there appears to be a resemblance between