there being nothing in the above act to restrict the right to a lien to those who should perform work on, or furnish materials for, that part of the road lying in this State. Held, further, that the omission by the clerk to forward to the Secretary of State a copy of the account and lien as required by section 4 of above act, and also the omission by the Secretary of State to keep an abstract of the same in a book kept for that purpose as required by section 5 of the same act, did not defeat the lien; otherwise it would be in the power of those officers to defeat the lien by failing to comply with their duties. The lien contemplated by this act is against all of the road and property of defendant in this State. After the submission of a cause in the Supreme Court on its merits, the court will not go behind the order granting the appeal, to determine the sufficiency of the affidavit on which it was made, or whether any affidavit whatever was filed. Reversed and remanded. Opinion by HENRY, J.-St. Louis Bridge and Construction Co. v. Memphis, etc. R. Co.

-A good story is told of Judge Jere Black. Some years ago he defended a man of low character who had committed a horrible crime. He cleared the fellow, and after the trial was celebrating his victory with a cocktail. A swaggering acquaintance of doubtful character, though high position, who was outraged at the clearing of the criminal, approached him and said in an offensive tone: "Judge Black, is there any man so infamous and so debased, or any crime so foul and outrageous, that you would not defend the man and excuse the crime?" Judge Black looked at him quietly for a moment, and then said: "Well, I don't know, John. What have you done?"

"Full many a gem of purest ray serene,
The dark, unfathomed caves of ocean bear;
Full many a flower is born to blush unseen,

And waste its fragrance on the desert air." We venture to say that the profession of the prosa c, though thriving, little city of Moberly, in this State, are blissfully unaware of the existence in their midst, of an incendiary and sarcastic genius. This aspiring individual seems to have been recently sat upon by the Supreme Court, and not to have relished the proceeding. Therefore, to gain a glorious revenge, and at the same time amuse himself by making the editor of this JOURNAL wear the motley, on All Fools Day, he sent us the following query for our column of "Queries and Answers," to-wit:

Moberly, Mo., April 1st, 1881. "Is the old maxim, Stare decisis, et non quieta movere," recognized in this State? If so, "when, where and how often?" [Signed] H.

-An honest German laborer was passing along the street a day or two ago, when a small dog rushed out of a yard and bit him on the leg, tearing his pants and leaving the print of his teeth in the calf. The German hastened to a lawyer's office and asked the barrister if he could not sue the owner of the dog for damages. The lawyer agreed to take the case, and made propositions for filing a suit for $5,000 damages, alleging that the dog was a ferocious animal, and that plaintiff's flesh had been terribly lacerated, necessitating the expenditure of large sums for medical attendance and for a new pair of pants. The client was directed to go to the house of the owner of the dog the next day, make a demand for the $5,000, and ascertain the name of the defendant. He called at the house early the next morning, and asked for the "boss." He was somewhat surprised when the lawyer presented himself as the owner of the little dog. The lawyer was no less surprised to learn that his black-and-tan was the cause of the trouble, and he informed the client that a suit would not be maintained, as the injury done was a mere trifle, and the dog was only in fun. The result of the conference was, that the lawyer gave the client 65 cents to pay for patching his pants, and took a receipt in full satisfaction of all claims for damages. Both parties were satisfied, and the courts were spared the trouble of trying a vexatious and costly damage suit.

more.

-A new venture in the field of legal journalism comes to us from the extreme northwestern corner of civilization, that is, from Portland, Oregon. It is a small weekly, entitled The Northwestern Law Journal and Real Estate Reporter, and is edited by Benjamin I. Cohen, formerly of BaltiIt disclaims any intention of rivaling the CENTRAL LAW JOURNAL, but expects to meet the wants of the local bar, and to a certain extent, of the insurance and real estate agents of that State. It is edited in a fresh and vigorous style, and we believe is really meritorious. We wish Mr. Cohen and his new venture success and prosperity.

had a right of priority to payment out of the current earnings of the road in the hands of the receiver, and that if such earnings had already been diverted from that purpose and employed in the payment of the interest on the mortgage bonds, pursuant to orders of the court below, then that such claims should be paid out of the proceeds of the sale of the road, before such proceeds should be applied to the payment of the mortgage debt. Fosdick v. Schall, 98 U. S. 225; Hall v. Frost, 98 U. S. 389; Atlegus v. Petersburg R. Co., 3 Hughes, 313; Owen v. Harman, 4 H. L. 997; Beverly v. Brook, 4 Grat. 187; Syracuse City Bank v. Tollnap, 31 Barb. 208; Douglas v. Cline, 12 Bush, 608; Duncan v. Chesapeake, etc., R. Co., 3 Cent. L. J. 579; Clark v. Williamsport, etc. R. Co., Supreme Court of Pennsylvania, and Poland v. La Motte Valley R. Co., Supreme Court of Vermont, not yet reported. See, also, upon this subject, 2 Cent. L. J. 636; 3 Ib. 304, 338, and 4 Ib. 458.

LITERARY PROPERTY.

At common law, the author of an unpublished manuscript had a property in his production, which continued in him until publication by his consent. But the question of what rights an author possessed in his literary productions, independent of any statutory provisions upon the subject, was for a long time a topic of excited discussion among literary men, and one of much interest to the legal profession, it being a subject of much litigation in the courts. The first determination which the subject received in the court of King's Bench, was in the famous case of Millar v. Taylor,1 decided in 1769. It was held by the court that while at common law an author had the sole right of first printing and publishing for sale his writings, yet after such publication made by him, he possessed no property rights in his production, which could be infringed by a republication by a stranger, unless the author had taken out a copyright under some statute giving him such right.

In 1774, the question was brought into the

14 Burr. 2303.

House of Lords in the case of Donaldson v. Becket. That case involved the consideration of several interesting questions.

1. The first of these was, whether at common law, an author of any book or literary composition had the sole right of first printing and publishing the same for sale; and whether he might bring an action against any person who printed, published or sold the same without his consent. These propositions were sustained, eight of the judges voting in the affirmative, and three in the negative.

2. If the author had such right originally, did the law take it away upon the printing and publishing of such book or literary composition, against the will of the author? This was answered in the negative by seven of the judges, and by four in the affirmative.

3. If such action would have lain at common law, was it taken away by statute of 8 Anne (statute of copyright), and is an author by said statute precluded from every remedy except on the foundation of said statute, and on the conditions prescribed therein? Six of the judges answered in the affirmative, and five in the negative.

4. Whether the author of any literary composition, and his assigns, had the sole right of printing and publishing the same in perpetuity by the common law. Seven of the judges answered affirmatively, and four negatively.

5. Whether this right of publication in perpetuity was taken away by the statute of copyright. Six answered in the affirmative, and five in the negative.

Notwithstanding the answer of the judges to the fourth of the above propositions, as to the author's perpetual and exclusive property right at common law, in the future publications of his work, after having once published the same, the subject has since been seriously questioned, both in England and in this country, the Supreme Court of the United States saying in Wheaton v. Peters,3 that it could not be considered as free from doubt, but evidently inclining to the opinion that he had no such right. But no doubt exists as to the fact that an author did possess, by the common law, a property-right in his unpublished manuscripts. And it may also be considered

24 Burr. 2408.

38 Peters, 591,657, (1834).

4 Wheaton v. Peters, 8 Pet. 591; French v. Maguire,

an

as established beyond all controversy, that when the author has once published his writings, he loses his private rights therein, | and they become common property, and subject to the free use of the public,-in other words, that copyright exists only by statute.5 The first English statute which secured to author the rights of literary property after publication, was 8 Anne, c. 19, which gave him the sole right of publication for twentyone years. The present English copyright act is, we believe, the one passed in 1842. In this country, the framers of the Federal Constitution provided that Congress should have power to promote the progress of science and the useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." In pursuance of this power, Congress, in 1790, passed our first copyright act. In 1870 the present act was passed, and an author has exclusive right to the publication of his writings for twenty-eight years from the time of taking out his copyright, with a right of renewal for fourteen years at the expiration of the first period.

Inasmuch as an author's rights in his manuscript or writings are lost at common law by publication, it is interesting to note the opinion that a publication of a work for private purposes and for private circulation, is not such a publication as defeats the common-law right of property.6 So one who permits his pupils to take copies of his manuscripts for the purpose of instructing themselves and others, does not thereby abandon them to the public, and if an attempt is made to publish them, their publication will be restrained by injunction.7

In Crowe v. Aiken, Judge Drummond declares that the delivery of a lecture is not such a publication of it as deprives the lecturer of his property rights therein. It can not be true, he says, that the lecturer has no rights

55 How. Pr. 471; Boucicault v. Fox, 3 Blackf. 88, 97; Parton v. Prang, 3 Clifford, 537; Rees v. Peltzer, 75 Ill. 475.

5 Jeffreys v. Boosey, 4 H. L. 838; Reade v. Conquest, 9 C. B. (N. S.) 768; Wheaton v. Peters, 8 Pet. 591; Rees v. Peltzer, 75 Ill. 475, 478; Parton v. Prang, 3 Clifford, 537.

6 See White v. Geroch, 2 B. & Ald. 298; Prince Albert v. Strange, 2 De G. & Sm. 686; Copinger on Copyright, 9.

7 Bartlett v. Crittenden, 4 McLean, 300. 82 Bissell, 208.

of property in his unpublished and unprinted lecture; that the clergyman has no rights of property in his unpublished sermon, the work of weeks of thought and labor, simply because he has repeated it to an audience. In Keene v. Kimball,9 decided by the Supreme Court of Massachusetts, the court disclaimed any intention of intimating that there was any right to report phonographically or otherwise, a lecture which its author had delivered before a public audience, and which he desired to use again in like manner, and to publish it without his consent, or to make any use of a copy thus obtained. "The student who attends a medical lecture," say the court," "may have a perfect right to remember as much as he can, and afterward to use the information thus acquired in his own medical practice, or to communicate it to students or classes of his own, without involving the right to commit the lecture to writing, for the purpose of subsequent publication in print or by oral delivery. So, any one of the audience at a concert or opera, may play a tune which his ear has enabled him to catch, or sing a song which he may carry away in his memory, for his own entertainment or that of others, for compensation or gratuitously, while he would have no right to copy or publish the musical composition." In Palmer v. DeWitt, 10 it is said that the delivery of a lecture in the presence of a public audience is not such a dedication of it to the public use, that it can be printed and published without the lecturer's permission. "It does not give to the hearer any title to the manuscript, or a copy of it, or a right to the use of a copy of it. The manuscript and the right of the author therein are still within the protection of the law, the same as if they had never been communicated to the public in any form." In England the right of property in lectures has been confirmed by statute, which provides that no person, allowed for a certain fee to be present at any lecture delivered at any place, shall be deemed to be licensed to publish such lecture on account of having been permitted to attend the lecture, but that the sole right of publication shall be in the author.11

9 16 Gray, 545, 551.

10 47 N. Y. 542.

11 5 & 6 Will. iv, c. 65. And that the delivery of a lecture to an audience admitted on payment of a fee is not a "publication" of the lecture. See Abernethy v. Hutchinson, 3 L. J., Ch. 209.

So the public representation of a dramatic play is not such a publication of it, as authorizes anyone to print it without respect to the property rights of the owner. In Macklin v. Richardson, 12 as long ago as 1770, an injunction was issued restraining the publication in a magazine of a farce which had been acted, but never printed. The mere performance of a play in a public theater, with the consent of the author, for a compensation to him, is no evidence of his abandonment of the manuscript to the use of the public. 13 The fact that the author has withheld it from publication, entitles him to an injunction on principles of literary property, against one who publishes it without his consent, although represented in public without having been copyrighted. 14 In Crowe v. Aiken, 15 the court say that at common law the representation of a play upon the stage is not a dedication of it to the public, except so far as those who witness its performance can recollect it; nor have the spectators the right to secure its reproduction by phonographic or other means independent of memory; and that no restrictive notice is necessary to spectators to secure the author's rights, nor will such notice give him a right which he does not have at common law.

But a distinction exists between the right to publish a play, and the right to represent it upon the stage. In reference to this, the New York Court of Appeals says: "The right publicly to represent a dramatic composition for profit, and the right to print and publish the same composition to the exclusion of others, are entirely distinct, and the one may exist without the other. The copyright acts which secured to authors the exclusive right, for a limited time, to print and publish their works, did not secure to them the exclusive right of the public representation of their dramatic compositions. Until the passage in England of statutes 3 and 4 William IV., ch. 15, an author could not prevent anyone from publicly performing on the stage any drama in which the author possessed the copyright. He could only prevent the publication of his work by multiplication of copies of it."16

12 Ambler, 694.

13 Boucicault v. Fox, 3 Blatchford, 88. 14 Boucicault v. Hart, 13 Blatchford, 47. 15 2 Bissell, 208.

16 Palmer v. De Witt, 47 N. Y. 532.

This same right was secured to the author in this country, by act of Congress passed in 1856. Hence we find in French v. Maguire, 17 the court saying that the public performance of a dramatic composition will permit the observer or hearer to appropriate for himself so much as his memory may be capable of retaining. But it will not allow the hearer and observer to appropriate and use the entire composition, with its incidental stage accompaniments. That right still remains in the author and his assignee. In this case, the court granted an injunction against a nonresident defendant, temporarily within the State when process was served, restraining him from performing or exhibiting a drama in a foreign State, in violation of the complainant's rights. In Daly v. Palmer, 18 it is held that the various parts which go to make up a "scene" in a theatrical representation, consisting of gestures, spoken words, etc., constitute a dramatic composition entitled to protection, and a person is chargeable with infringement if the appropriated scenes of events, when represented on the stage, although performed by new and different characters, using different language, are recognized by the spectator through the medium of the senses, as conveying substantially the same. emotions in the same sequence or order as the original.

In Keene v. Kimball,19 the Supreme Court of Massachusetts declare that the representa tion of a dramatic work, which the proprietor has no copyright of, and has previously caused to be represented and exhibited for money, is no violation of any right of property, although made without license of the proprietor. This is in harmony with the conclusion of the New York Court of Appeals in Palmer v. De Witt, already cited. But Keene's case is worthy of attention for the ingenious argument which counsel advanced to show that a dramatic composition was not entitled, in Massachusetts, to the protection accorded to literary property. In reference to this the court said: "Notwithstanding the ingenious and interesting argument for the defendant, derived from the principles and ideas of the Puritan founders of the Commonwealth, we

17 55 How. Pr. 471. 18 6 Blatchford, 256. 19 16 Gray, 545.