Boucicault v. Fox.

ened with a new life and adorned with a hitherto unknown beanty. Of this, Macbeth is an instance. The original tale, from Hollingshed, whether a fable or a verity, was of very indifferent quality; but Shakspeare, as remarked by Sir Walter Scott, "adorned it with a lustre similar to that with which a level beam of the sun often invests some fragment of glass, which, though shining at a distance with the lustre of a diamond, is, by a near investigation, discovered to be of no worth or estimation."

A thorough comparison of the novel and the play in this case, will clearly show that the latter is an original work, in the sense of the law. It is not a copy of "The Quadroon," nor an abridgment of it. The most than can be said in favor of their similarity is, that the dramatis persona of the play are, a portion of them at least, suggested by those that figure in the novel. The prominent characters in each have some features in common, and move in and are acted upon by the same social organization; but there are points of marked contrast, both in the fictitious persons sketched, and the vicissitudes they experience. Some of the actors in the drama are almost wholly dissimilar to their supposed prototypes in the novel; and, were it not for their relation to the central figure, which is a quadroon girl in both the book and the play, their resemblance would hardly have been noticed. The author of "The Quadroon" has no just cause of complaint. against this plaintiff. His vested rights have not been invaded by the latter, and the policy of the law is to encourage literary labor, so far as it can be done without infringing upon the rights already granted to others. Plagiarism and servile imitations are not to be encouraged. Those literary

thefts which are committed upon copyrighted works the law promptly suppresses. The mere copyist, or the slavish imitator who produces old materials, substantially in their old form, without new combination, is entitled to no protection under the statute. But the law rests upon no code of comparative criticism. It protects alike the humblest efforts at instruction or amusement, the dull productions of plodding

United States v. Horn.

mediocrity, and the most original and imposing displays of intellectual power. This law should be liberally construed in favor of authors, and, leaving their comparative merits to be settled by critics, at the tribunal of public opinion, it should protect and encourage their labors. The fruits of their literary toils should be secured to them by the highest title, for they keep open the springs of thought which feed the intellectual life of the nation.

We are of the opinion that there is no error in the record, and that the validity of the copyright is fully supported by the originality of the play. A new trial is denied.

THE UNITED STATES vs. ALBERT HORN.

A jury, on the trial of an indictment, after they had retired to consider their verdict, were, at their request, furnished by the officer in charge of them, with several directories of the city of New York.. This fact was made known to the Court before the verdict, which was one of conviction, was rendered, and they were then recalled and directed by the Court to wholly disregard, in coming to a result, any information they might have obtained from the books, and it did not appear that the irregularity operated in any way to the disadvantage of the prisoner: Held, that such irregularity was not sufficient ground for granting a new trial.

Where an accomplice with the defendant in an indictment, is examined as a witness for the prosecution, his wife, not being an accomplice herself, is a competent witness to prove any independent facts not sworn to by her husband, and not forming any part of his acts, although those facts fasten a guilty knowledge on the defendant.

(Before NELSON and SHIPMAN, JJ., Southern District of New York, November 10th, 1862.)

THIS was an indictment for fitting out and sending away a vessel, with intent that she should be employed in the slave trade. At the trial, the defendant was found guilty, and he now moved for a new trial.

United States v. Horn.

E. Delafield Smith, (District Attorney,) for the United States.

James T. Brady, for the defendant.

SHIPMAN, J It is alleged, in support of this motion, that, after the case was submitted to the jury and they had retired to their room, they applied to the officer in charge of them to furnish them with several directories of the city of New York, and that the officer complied with this request; and it is alleged that this irregularity is sufficient to avoid the verdict and entitle the prisoner to a new trial. We have already stated that this was a highly improper act of the officer. For it he has received the pointed censure of the Court. But nothing appears before us to show that this irregularity operated, in any way, to the disadvantage of the prisoner. Without determining the general question, how far affidavits of jurors can be read for the purpose of disturbing their verdict, or whether they can be read at all for that purpose, we do not think the one offered presents any facts calling for the Court to set aside this verdict, especially in view of the fact that the circumstance of the books having gone to the jury was made known to the Court before they had come into Court with their verdict, and that they were then recalled and directed by the Court to retire to their room and banish from their minds any information they might have obtained from the books, and to wholly disregard any such information, in coming to whatever result they might reach.

The second ground upon which the motion for a new trial rests, is founded upon alleged error in the charge to the jury, touching the weight to be given to the testimony of Mrs. Crawford, the wife of one of the witnesses for the government. Crawford, the husband, was confessedly an accomplice, and the jury were instructed that it was not safe to convict upon the uncorroborated testimony of accomplices alone. The defendant contended, upon the authority of the case of Rex v. Neal, (7 Carr. & P., 168,) that the wife's testimony was not

United States v. Santos.

competent in law to confirm the statements of her husband. The Court charged the jury on this point as follows: “Mrs. Crawford is not, upon the evidence before us, an accomplice, and, so far as she testifies to facts not testified to by her husband, her statements must rest upon her personal credibility, subject to any inconsistency in, or contradiction of, her story. Although she cannot, in law, as the wife of an accomplice, corroborate and strengthen his particular statements, she is a competent witness, if believed by the jury, to prove any independent facts not sworn to by her husband, and not forming any part of his acts, although those facts, if believed by the jury, fasten a guilty knowledge on the defendant." We think the rule here laid down is sufficiently favorable to the defendaut. Whether we should, upon full deliberation, affirm the doctrine laid down in the case of Rex v. Neal, we are not prepared to say. But, assuming it, for the purpose of this case, to be correct, we have no hesitation in affirming the particular instructions that were given to the jury in the present case, in connection with that doctrine.

The motion is overruled, upon both grounds.

THE UNITED STATES vs. JOSEPH E. SANTOS.

Where a defendant in an indictment, who was on bail, departed the Court without leave, during the trial, and the recognizance of bail was estreated and ordered to be prosecuted, but, the offence being only a misdemeanor, the trial proceeded in the absence of the defendant, and he was acquitted, the Court, under the 6th section of the Act of February 28th, 1839, (5 U. S. Stat. at Large, 322,) the bail being innocent, set aside the estreat, on the application of the bail.

(Before NELSON, J., Southern District of New York, November 26th, 1862.)

THIS was an indictment for fitting out a vessel with intent to employ her in the slave trade. One James Murphy, as surety, entered into a recognizance for the appearance of the

United States v. Santos.

defendant, to abide the order of the Court. The defendant appeared and answered to the indictment, but, during the trial and before it was concluded, he departed, without the leave of the Court. He was called and defaulted, and the recognizance was duly estreated and ordered to be prosecuted, but, as the offence charged was only a misdemeanor, the trial proceeded, and the defendant was acquitted by the jury. Murphy now applied to the Court, to be relieved from the default and estreat.

E. Delafield Smith, (District Attorney,) for the United States.

James T. Brady, for the surety.

NELSON, J. The 6th section of the Act of February 28th, 1839, (5 U. S. Stat. at Large, 322,) provides, that in case of the forfeiture of a recognizance in a criminal case, the Court shall have authority, in its discretion, to remit the whole or a part of the penalty, whenever it shall appear that there has been no wilful default of the parties, and that a trial can, notwithstanding, be had in the case, and that public justice does not otherwise require the same penalty to be exacted. This case is rather stronger in favor of the application than those contemplated in the statute. Here the trial has been had, and the prisoner has been acquitted. The condition of the recognizance has been performed in fact, though not in contemplation of law, for the defendant has stood the trial. The case being a misdemeanor, it was competent to proceed with the trial in his absence. Although it must be assumed that the default was wilful, as it respects the prisoner, for aught that appears the bail is innocent, and he is the person most materially interested in the success of the motion. Under the actual circumstances of the case, I think that the breach of the condition of the recognizance is technical, and that it would be unreasonable to impose it. I shall, therefore, direct the default and estreat to be set aside. The bail must pay to the District Attorney the costs of any suit that has been commenced.