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izations it is not recognized at all, but all private gines to be built. If Mr. Ruskin, again, had been property then escheats to the lord, the tribe, “ the the owner of the patent, he might have been capublic." In the most advanced civilizat ons the pable of such a decision. right of bequest is hedged with conditions which Upon the whole, the present condition of copywould be oppressive and tyrannous if it right, with permission for one renewal, seems to recognized as a natural right, but are rea onable work pretty satisfactorily. It is at least very when it is regarded as the creature of legislation doubtful whether any improvement would be efEvery legacy and succession duty is a limitation sected by taking the theory of natural right, carry. upon the right of a man to do what he likes with ing it as far as it will go, and working it for all it his own after it passes by death out of his own is worth. - New York Times. possession. Men are permitted to transmit their property, or some part of it, as a matter of public policy, not as a matter of inherent right. If liter- TESTIMONY ON A FORMER TRIAL BY A ary property be entitled to be put upon the same
WITNESS SINCE DECEASED. scoting with any other, it is not entitled to be pu' upon a better.
THE law as to the admissibility on a subsequent It is just two centuries since the first English copyright law recognized literary property at all since the former trial, like many other topics of There had been before an “ordinance” prohibit the law of evidence, is in a far from satisfactory ing the printing of any book without the writer's condition. The rule is generally stated that for consent. In spite of this Dean Swift found himself the testimony to be admissible the cause of action powerless to prevent the sale under his own nose must be the same, and, if not between the same of what we should call a pirated edition of hii parties, they must at least be privy in law, in blood, miscellanies. The “Thomas Teggs and other ex- or in estate to those of the former trial. Prof. traneous persons ” had it all their own wav. Our | Wigmore, possibly with the intention of placing notions have advanced beyond that. But the the rule on some rational bases, in his edition of notion that it is public policy and not natural righ Greenleaf on Evidence (sec. 163a), states that, as that secures to the author a part of the profiti | regards the parties to the suit, “all that is essenfrom the sale of his books is still at the bottom oftial is that the present opponent should have had a our legislation on the subject. Certainly it is dis- fair opportunity for cross-examination.” On this tinctly expressed in the Constitution of the United passage the plaintiff in a recent case largely relied States, from which congress gets its prwer to (Met R’y v. Gumby, N. Y. Law Journal, Feb. 6 enact copyright laws. This is the power “to pro- 1900). In an action by a parent for the loss of a mote the progress of science and the useful arts child's services through an injury to the child by by securing, for limited times, to au:hors and in the defendant's alleged negligence, the court perventors, the exclusive right to their writings and mitted to be read the testimony of a deceased witdiscoveries.” So that an American conyright, by ness of the accident in a previous action brough its terms perpetual, would evidently be unconsti- by the infant's guardian ad litem against the detutional and void.
fendant for the same injury. On a writ of error, We cannot imagine any very serious public the court held that, there being no privity between grievance as arising from perpetual copyright. It the plaintiffs in the two actions, the evidence was would be in the author's power to annoy and wrongly admitted. hame people who desired to buy his books. The While it is evident there is no underlying prinlate John Ruskin managed to do that by refusing ciple on which this limitation requiring privity to avail himself of the ordinary commercial ma- between the parties offering the evidence in the chinery for distributing books. Mr. Clemens pro- two cases may be supported, no fault can be found poses to guard against the possible perversity of with the decision, as it is probably as well for the authors by requiring the issue of a chean edition as courts to adhere closely to precedent in decisions a condition of continued copyright. But evidently on the law of evidence. The established rule resuch a condition is an impairment of complete quiring privity between the parties, for this eviownership, and seems to give away the whole case dence to be admissible, is apparently based on the of “natural right.” The mechanical inventor is same misconception as the doctrine that the adupon the same footins. ethical as well as legal, as missions of a grantos are evidence against his the literary inventor. The mere renewal, permitted grantee: namely, that the rule that the grantee's hy law, of certain patents, has been opposed and substantial rights may be cut down by the acts of upon plausible grounds, as a wrong to the public. the grantor before convevance has some applicaA perpetual patent might be an awful oppression tion to the evidence admissible in a suit to which Think what would happen if the heirs of James the grantee is a party. Undoubtedly, one should Watt were entitled to royalty upon every steam only get the interest his grantor had to give, but engine used in the world. or. much more, if they it is an altogether different matter to allow the should conclude not to allow any more steam en- ' acts of the grantor to affect in this way the evidence admissible in a suit by the grantee (Paige the de facto government of the territory during the v. Cagwin, 7 Hill, 361). The argument of the war must in international law be recognized by court in Morgan v. Nicholl (L. R. 2 C. P. 117), Great Britain in the event of re-conquest, and this that for the evidence to be admissible against one contention receives support from the opinion of it must be admissible against both, would seem the Court of Appeal in the Balmaceda Treasure without foundation. Of course the plaintiff here case, The Republic of Chile v. The London and could justly object to its admission, because he had River Plate Bank ([1894) 10 T. L. R. 658), where no opportunity to cross-examine the witness, but the court held that a contract made by Balmaceda why should the defendant object who had? The during his presidency could not be repudiated by cases of res judicata and estoppel, which are often his successors in the government of Chile, alcited as indicating the proper rule for this subject, though certain of Balmaceda's acts with respect rest on an entirely different principle.
to the contract had been done after his resignation There has, indeed, in some jurisdictions, been a of the presidency. The distinction, however, in slight deviation from the general rule in criminal favor of the present proclamation is that the concauses. In a civil trial for an assault, the evidence tractors had no notice of the resignation or of the of a deceased witness given in a criminal trial for recognition of the new de facto government in the same assault has been admitted (Kreuger v. Balmaceda's stead; and the proclamation will at Sylvester, 100 Ia. 647). And dicta are occasionally the least operate effectively against British subfound that if the opposite party had the right of jects or Africanders who take concessions of propcross-examination it is sufficient. Undoubtedly erty forfeited by the Boer governments during the this desirable result will eventually be reached. war. — Law Journal (London). Harvard Law Review, April, 1900.
TRANSVAAL FORFEITURES OR INCUM
T is announced from the Cape, and confirmed in
parliament this week, that Sir Alfred Milner has issued a proclamation to the effect that the British government will not recognize any forfeitures or incumbrances or the like declared or created by the Transvaal government on properties in the Transvaal since the outbreak of the war on October 10. The commercial importance of this declaration is obvious, for it means (1) that in the event of conquest the acts of the Transvaal government against persons who have incurred hostility as British subjects or by declining to be commandeered will be regarded as invalid; (2) that persons who seek to profit by these acts, to the detriment of persons subjected to confiscation, will not profit by concessions made during the war. It is likely that the Transvaal will seek to enlist European interests on their side by granting to European concessionaires properties taken away from British subjects, and early warning of the informality of a title so acquired was, to say the least, desirable. But we do not doubt that diplomatic difficulties will arise in settling any cases where such concessions have been given. The proclamation is also significant, as indicating that the British government take the view that the declaration of war by the Transvaal amounts to a forfeiture of its title to independent government of the State under the convention of 1881 and 1884, and the reversion of the territory to its former condition of British territory. But it will be necessary to obtain the assent of foreign pow. ers to this doctrine: and it is more than likely that they will contend that the obligations created by
Circuit Judge Samuel W. Vance, of Port Huron, Mich., died very suddenly on the 3d instant. He had been troubled with a pain in one of his ears for several weeks, but not to such an extent as to prevent him from attending to his duties in the court-room. On the day of his death the pain suddenly increased, and it became evident that an abscess had formed on the brain. Judge Vance was an able and popular judge, and his death is a less to the whole State, as well as to the particular circuit which he served so faithfully. He was serving his second term as judge at the time of his death.
The commission for statutory revision is to go. All of its bills are dead and the commission itself is to be abolished unless pending legislation fail in the hands of the governor. Failure is not expected, as the bill was advanced through the governor's efforts. This commission has done a great deal of mischief in altering statutes instead of codifying them. The laws have been in such a state of change that lawyers themselves were puzzled and litigation was rendered difficult. The money, over $200,000, expended by the State in support of this commission and its work has been practically wasted. Mr. Lincoln, of the commission, will remain as counsel to the governor. It would appear that the movement for abolition did not refer to him. – Rochester Democrat and Chronicle.
The New York legislature has passed and the governor signed an act amending sections 768, 1203 and 1214 of the Code of Civil Procedure. These sections relate to motions and applications for judgment, and provide that in a large number of instances they may be made before a justice of
the court out of court. The Constitution provides was there that in 1767 Edward Thurlow, afterwards that justices of the Appellate Division can transact lord chancellor, who has just been called to the no other business besides appellate business, ex- bar, by accident picked up his first brief, and was cept that which can be done by a justice of the in consequence enabled to make phenomenal proSupreme Court out of court. This provision of the gress in his profession. A decision in respect of Constitution has caused a great deal of embarrass- the great Douglas v. Hamilton case by the Edinment to members of the bar wherever a justice of burgh Court of Session was being appealed against the Supreme Court has been placed in the Appel- in London, and young Thurlow, who was opposed late Division. It rendered them practically use- to the Scotch pronouncement, argued learnedly less for all other purposes. These amendments against it in Nando's. He was overheard by the make it possible to make applications for orders legal gentleman in charge of the appeal, and was and judgments to justices out of court in a large at once briefed as junior in the case. Eventually class of cases that heretofore had to be made to the decision of the Court of Sessions was reversed. the Special Term. Members of the bar will hereafter be able to make use of the justices of the Appellate Division in a large number of cases
Segal Laughs. where heretofore they were prohibited from acting.
Sir M. S. Grant Duff, in his recently published
• Notes from a Diary,” 1886-1888, says that during English Notes.
his stay in Edinburgh in November, 1888, conver
sation turned at dinner to the suit in which AlexIt is stated that the late General Joubert in early ander Russel, the editor of the Scotsman, had been life was a law agent. This led to his election as
cast in damages for a libel on Mr. Duncan Macthe Volksraad member for Wakkerstroom in the laren. Amongst other amenities it appeared that early sixties. His vigorous use of the slender he described that gentleman as a “wee snake.” stock of legal knowledge he had acquired led Some time after Russel avenged himself for losing eventually to his appointment as the attorney-gen- his suit in an article upon some statistics which his eral of the republic, his path to this position having old enemy had put together, by remarking that been paved by his occupation of minor official
Mr. Duncan Maclaren was a “great adder.” Anposts.
other anecdote recorded was the saying of Chief At last, says the St. James's Gazette, the award Justice Erle to some one who had offended him: of the Berne Arbitration Court is to be made. You don't know the strength of the expression Exactly ten years and nine months ago took place which I am not using." — Solicitors' Journal. the illegal seizure of the Delagoa Bay Railway and the annulling of the concessions by the Portugese government. On the 5th of July, 1889, about a
New Books and New Editions. fortnight aiter that seizure, arbitration was agreed upon, and the first court sat a couple of years later.
Democracy and Empire. With Studies of Their That ten years should have been taken in deciding
Psychological, Economic and Moral Foundathe merits of even a complicated case such as this
tions. By Franklin Henry Giddings, M. A., is, to say the least of it, surprising.
Ph. D. New York: The Macmillan Com The attention of the law officers of the crown
pany, 1900. has, says the Times, been called to a possible hard
Prof. Giddings is a well-known student and ship that may arise in the case of a solicitor's
teacher of sociology in Columbia University. He articled clerk who has, in the present exceptional has given to the problems of “ Democracy and crisis, volunteered for service in South Africa or
Empire” careful, painstaking study, and has joined a militia regiment. It appears that before viewed what he well terms the “ democratic tenan articled clerk can be admitted as a solicitor a
dencies of the nineteenth century” from the standdeclaration has to be made by his employer that points of industry, of politics and of education, in he has not been engaged in any other employment order to understand and explain how it is thai during the period of his clerkship; so that the
democracy and empire, paradoxical as such a service of an articled clerk in the auxiliary forces relationship seems, are really only correlative might be held to constitute a disability for his
aspects of the evolution of mankind." The volume admission as a solicitor.
is, in form, a collection of essays, but it is, as the A legal correspondent of the Daily Telegraph | author truly says in his preface, much more, for all writes: In reference to the historic No. 17 Fleet the papers included may properly be regarded as street, which is to be preserved by the county logically related parts of a whole. Among other council, it may be noted that in the last century it topics discussed are these: The Democratic Em was Nando's famous coffee-house, which was fre- pire; The Ethical Motive; The Mind of the Many; quented by many legal celebrities of the day. It | The Costs of Progress; The Trusts and the Public;
The Railroads and the State; Public Revenue and In view of the phenomenal vogue of the popular Civic Virtue; Some Results of the Freedom of novel it is amusing to be reminded by Prof. FranWomen; The Nature and Conduct of Political cis H. Stoddard, in his book on The Evolution Majorities; The Relation of Social Democracy to of the English Novel” (Macmillan), that the novel the Higher Education; The Popular Instruction as a literary form has fought its way against prejuMost Necessary in a Democracy; The Shadow and dice and that it is but a few years since apologies the Substance of Republican Government; The for putting this or that study of life into the form Consent of the Governed; Imperialism; The Sur- of a novel have disappeared from the prefaces. vivals of Civil Liberty; The Ideals of Nations;
It is difficult to conceive how a magazine could The Gospel of Non-Resistance. All these subjects
be more happily or more helpfully adjusted to the are discussed with candor, ability and eminent fair
more important interests of the present moment ness, and in a way that cannot fail to prove helpful than is the April number of the North American to the student of the great problems of to-day.
Review. Not only does this number afford AmeriProf. Giddings is entitled to thanks for thus giving
can readers the most effective opportunity availto the public a series of addresses which, though
ible to them for mastering topics of living concern, most of them were intended only for the class
but it contains several contributions whose literary room, are so enlightening as to be worthy of far
excellence will entitle them to attention for many larger and more general circulation.
years to come.
The complete novel in the New. Lippincott The Golden Horseshoe. Edited by Stephen Bon
ior April is entitled “The Heart of the Ancient sal.
New York: The Macmillan Company, Wood,” by Charles G. D. Roberts. The few but 1900.
large-souled human characters in it live in the This volume of some 315 pages consists of al- woods of the north, close to Nature's heart, with leged extracts from the letters of Capt. H. L. he beasts of the forest for their friends. Yet even Herndon, of the Twenty-first United States In iere the old, old story is very present; the wild fantry, on duty in the Philippine Islands, and urroundings cannot entirely efface the coquetry Lieut. Lawrence Gill, A. D. C. to the military latural to woman, and there is rivalry of a unique governor of Puerto Rico, with a postscript by J. cind to bring this out. Sherman, private Co. D, Twenty-first Infantry. Of
In sureness and variety of attraction, it would course, the gentlemen above named (save the
be hard to surpass McClure's Magazine for April. editor, Mr. Bonsal) are fictitious, and the fiction
The account of the interior of China, especially was invented so as to enable Mr. Bonsal to say
with reference to its rich promises as a market for what he wished to say about the late war with
America, written by Mr. W. B. Parsons, chief Spain without direct responsibility therefor. As
engineer of the American China Development may be imagined, some of the comments are
Company, from observations made on his own highly spiced. The book makes quite interesting.
journeys, and illustrated very fully from photo reading, and is not without value as a contribution
graphs taken by him; the account of Prof. Huxto the history of the late unpleasantness with
ley's life in London between his twenty-sixth and Spain.
thirtieth year, when he was having a terrific strug-
with its self-revealing passages from his unpub.
lished correspondence and its new portrait of him;
and the account of the Russian ship Ermack," The opening article in The Living Age for April the marvelous new ice-breaker that gives promise 7 is an affectionate yet discriminating consider of being able to cut a passage for herself to the ation of Mr. Ruskin on his personal side by Julia Pole, these are all, in their several ways, articles Wedgwood, who knew him well.
of the strongest interest and the highest value. The Puerto Rican tariff question is editorially
The April issue of the International Journal of discussed in the Review of Reviews for April, and
Ethics is one of the best issued in many months. in the same magazine there is an able exposition
The leading article is a thoughtful discussion of of the relations of the United States Constitution
• The Nature and Significance of Monopolies and to the territories, by Prof. Harry Pratt Judson, of
Trusts,” by Prof. Richard T. Ely, of the Univerthe University of Chicago.
sity of Wisconsin. The problem is a pressing one, The Baror. de Coubertin has just completed his and Prof. Ely has given it years of thought and book on
“ France Since 1814,” which The Macmil- study. Other articles are: The Ethics of Expanlan Company will publish at once. The work at sion," by H. H. Powers, of Cornell University tempts to set clearly before the world and “The Ethics of Our Philippine Policy." }, unvarnished account of the political changes in the Herbert Welsh, Philadelphia. It will thus be seen France of this century about which so many un- that the Journal is keeping right abreast of the founded beliefs obtain in the rest of Europe. movements and thought of the times.
The Albany Law Journal.
of this most ill-advised and dangerous law. That it fosters fraud and keeps a convenient way open for the operations of financial
harpies who fatten upon legitimate comA Weekly Record of the Law and the Lawyers. Published by merce, there can be no doubt whatever. CHE ALBANY LAW JOURNAL COMPANY, Albany, N. Y.
Contributions, items of news about courts, judges and lawyers' Since the act went into force, it is said, fully queries or comments, criticisms on various law questions, addresses on legal topics, or discussions on questions of timely $70,000,000 of debts have been wiped out in interest are solicited from members of the bar and those interveled in legal proceedings.
New York city alone, and we have no less
reliable authority than that of Judge Brown (All communications intended for the Editor should be ad. of the United States District Court for SouthAll letters relating to advertisements, subscriptions, or other ern New York, for the statement that a large business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.)
part of this vast sum was sworn off by fraud
which the court was powerless to prevent. Subscription price, Five Dollars per annum in advance. Single Qumber Twenty-Five Conts.
Judge Brown freely concedes that the present
Bankruptcy Act “is distinctly a law for the ALBANY, APRIL 21, 1900.
debtor, not for the creditor." We believe the act will soon be repealed, and propose to
lend our efforts in seconding the plans of Current Topics.
Representative Dolliver in that direction.
Jonathan P. Dolliver, representative dice existing against what has come to be in Congress from the State of Iowa, agrees known as “ expert evidence,” we venture to with us in his unqualified condemnation of give what a murderer on the scaffold and the National Bankruptcy Law, and that he just about to die, had to say about capital has introduced a bill in Congress to wipe it punishment. Albert Michod was about to off the statute book. Mr. Dolliver seems to expiate his brutal crime of killing his dicoincide with the ALBANY LAW JOURNAL in vorced wife in cold blood in the city of Tathe view that the act is an unmitigated fraud. coma, Wash. The noose was about the “ It is one thing," he declares, “ to wipe an. condemned man's neck and he was asked old slate; it is another to put American busi- whether he had anything to say before the ness for all time to come on the basis that sentence of the law was executed. He renobody need pay what he owes unless he plied:
plied: “Gentlemen: I am here to die. I wants to. It presents a standing invitation am face to face with death. I have comto the young men of the United State now mitted many errors during my life, for which free from debt, and about to embark in busi- | I am sorry. You see my hair is very gray, ness, to plunge into whatever speculation but there is good reason for it. I want to they please, with the assurance that their say more, but do not feel like it. But this I country stands ready to wipe out all their want to say — the best medicine against obligations if, at the end of their exploits, murder is capital punishment. Good bye; they have enough money left to file an appli- that's all.” Here we have a confessed and cation in bankruptcy. Transactions have condemned man, about to forfeit his worse been going on for nearly two years (in the than useless life, giving his unsolicited testiUnited States), possible only in prosperous mony to the effect that the death penalty times, which, unless checked by conservative should be retained as "the best medicine commercial influences, will prepare the way against murder." Of course, it will be said for a universal collapse of private credit.” that the fear that capital punishment would
This does not seem to us at all an extreme be executed upon him did not deter this man statement of the case, but rather a moderate from killing his former wife in cold blood attempt to describe the rascalities that are which is evident enough -- but what he flourishing under the operation and sanction I meant, we take it, is that the grewsome scene
VOL. 61 -- No. 16.