Morning herald. [volume] (New York [N.Y.]) 1837-1840, 1840-12-04
Z. s. Giro uit Conrt.
Present vudpes Thomnson aud Reft

rights AMI interests OF authors In the years 1910 lS
the executors Of the late Dr. Dwight, $. L. ID. l..
l.. D., President Of Yale College, published his
work On Theology, and took the necessary legal
steps to SECURE the copyright according TO law.
| English edition, and sold it in this city. The
learned gentleman having explained the offence to
the Jury and quoted the acts Of Congress. put in
seine preliminary proofs. and then called testi-
meny 10 prove that the defendants had imported a
number ef copies OF an English edition Of Djctor
Dwig ht book, which had been prepared under the
editorial care of Daniel Dewar. ID D., principal Of
Marischal College and University, Aberdeen.
!. There but little dispute about the facts, but
severa. very novel questions of law were involved
in the litigation The principal Of these was whe-
Their the defendants liable for each of the books
that traced into their possession, or only liable
for the copies broughtinto court.
The Court not wishing 10 decide these points has
tily dJournsd the uati III o'clock on Thursday
morning.
After the Jury had been called over, his Honor
Judge Thompson proceeded to deliver the opinion
Of the Court on the point raised by the defendants
counsel, Mr. OCpnner. His Honor said that the Court
could find but few facts TO regulate their decision by,
questions Of copyright had not often been litiga-
ted in this country. The English decisions were
numerous, but they threw bat little light that " as
likely to guide the Court in giving construction to
the mere words ofthc Act of Congress. The word.
Of the act relied to be found in Section b, Of
the Act OF $50.
recording the title oil any book books coreing 10 this
aet should within the term terms herein Limited priat,
rorte any copy such hook books without the
sent OF the person legally entitled TO the copyright there
Of first had and obtained In writing signed npiesence OF
two or credible witnesses SHALL knowing the
TO be so printed imported, publish orsel or eN'
sale, any copy Of such book without such consent in wri
ting, then such offender shall forfeit every copy of such
book TO the person legally entitled at the time to the copy
right thereof and shall also forfeit and pay y for
srsy such sheet which may be found in his eth
printed or printing, published, imported or exposed
sale contrary the nten. of this sct the one nosty
thereof to ouch legal OF the copy ght Aforesaid
and the other to the Of the United States to be
rered by action OF debt Court having competent
Jurisdiction thereof
His Honor then went on TO say that the Court did
not consider this penal statute, but the only
medy wh,c the statute law had gwen the plaintiff
and they looked upon this proceeding in the Zig OF
qui tam sctior, and that the words found 10 his
possession" must apply TO any single copy proved
to be IN the possession OF the defendants st time
HIS Honor sddco that II they were IL error in this
construction, If they should have fallen into any
error, they should be happy TO hear the counsel Ell
Their py way OF motion Tor trial, by carrying
the case further in a writ cf error.
Mr. O'Conuer then proceeded o address the Court
on'one or two other points Of law involved in this
inquiry.
First, As the plaintiff had only entered the first
volume Of the work before the Court, could they
claim 70 have a copyright for the other four.
Secondly, Having published AN edition ia four
volumes in the year ls22, without making new
try, did no,,hAt act vitiaie the right to recover
Thirdly, Was not each volume published in this
country a complete book in itself, tke a
newspaper or any other periodical
The learned gentleman was about to address the
jury, when Judge Thompson said that the Court
DESTROYS OF having further time ~ consider Of
these difficult points and therefore, il would be dc
srable, II the parties could agree some verdict,
subject 10 case, to be made, Tor the opn Of the
Court Ii there were any facts that were peculiar
" the province 81 the Jury why they could decide
gu them and leave the law TO be settled suisse
quentIy.
Mr. O'Conner thought there were two facts for
the Jury but he had objection 20 the case taking
such a direction should leave the parties to
their remedy.
The learned gentleman then told the Jury that
there would be hu. facts for them 10 decide on,
viz. Was ibere q proper deposit of these bsoks
made within siS months 81 the public alton IN the Of
fee Of the Secretary Of Stale AND how many of
these imported books had been traced TO the posses
sion Of the defendantsl
The counsel on both sides having summed up, Mr.
OCornor handed 20 the court paper containing he
terms Of the special verdict which the Jary TO
pass On.
The Court charged the Jury that this was a ease
Of a very novel character and of considerable i'm
auce 60 the public in general IL had been deem
CO sNpcdient to reserve certain question: arising
cut 81 this for the more deliberate Judgment 81
the Court, and therefore the Jury would oay have
20 find a verdict certain facts which would enable
the Court &c apply the law TO those facts fu
turc occasion One 81 the questions reserved by the
Counsel involves the point raised by the defence,
how FAR IL necessary for each Of the five volumes
20 contain the cerifeste which u only found in the
first vo umtl Another Is the necessity OF hav ing
each ~ the volumes deposited withs Elk months in
the Secretary OF States osce, bat for the sake 81
expcditing tha matter the court weuld observe that
u Is necessary for each TO have been deposited;
and u .. for the jury TO say how many Of the vol
umes have actually were actually deposited within
the time a'loae 3 by law, viz. six months
TIL. heSt point for yen 20 decide 10, how many
copies of thu English edition have been importsd
and sod by the defendants at any time whatever1
With respect 10 the first question, IL is IN testmo.
nv that the first and third volumes were deposited
rror 60 the 9th NJ July, 1919 There IL receipt Tor
them and the far infcr~nce IL that the second
lumc had not been received at that time.
(lIis Honor here took review Of the testimony
this point. and concluded by giving n - bis OPT
non, that only copies 81 the frat and third volumes
&C the Doctors book had been deposited within the
SIX months, as required by law
1, The next question, said his Hooor, is, how many
or the imported copies did the defendant have m
hisPossession, or SELL contrary IN the statute. The
plaintiff s not bound 60 show that the defendant so
tually made sales personaly-if they made by
his clerk sgcntitis sufficient yet IL does appear
that on one occasion the defendant was himself pre-
sent. lie is charged with selling two sets Of CO.
pics. Several persons have testified to purchasing
copies az various times and one person that
he bought one copy, ard saw number of others,
probably twenty five or more, in box in the store.
These, you have proof, invoiced in the Cus-
tom House, 1gnod by the defendant in which it APP
pears that he brought % copies Into the city, some
time in the month of June. 1890. There IL no pre-
tence,t That these'books did not arrive here, and
therefore. the Court think he is chargeabIe with
then. The other branch Of this same question in
wolves the Number q books sold in the store, be-
fore the Arrival ~ these in ported in the ship West
minister The CSsu deem this question more diff
hcult. but think the truth may be arrived at BY
looking AT Ssxton's testimony.
fhen agaip II bss been urged that you oaght not
frconstsue this estinory too strictly because "
his clerks, and have shown bew many copies he did
actually import and sell The Court says that the