of the owner, and obtained before publication by him, is an invasion of his proprietary rights, if the property so obtained is made use of to his injury. Each of the learned justices admits that a play cannot lawfully be taken down by a short-hand writer from the lips of the actors during a public performance. If taken thus by a stenographer, it is different, in its legal effect and resulting consequences, from committing to memory and afterward writing it out? In principle it is not. They are only different modes of doing the same thing, and, if without the author's consent, are alike injurious to his interests. The objection is not to the committing a play to memory, for over that no court can exercise any control, but in using the memory afterward as the means of depriving the owner of his property. Such use, it seems to me, is as much an infringement of the author's common-law right of property, as if his manuscript had been feloniously taken from his possession. I can see no difference. In the case of Prince Albert v. Strange, 2 De G. and Sma. 652, a workman employed to take impressions from copper plates of etchings made by the plaintiff, not intended for publication, took impressions for himself and sold them to the defendant. It was held an infringement of the plaintiff's proprietary right, and an injunction was granted and the impressions ordered to be destroyed. The pleadings and proofs in this case were shaped so as to bring it within one of the propositions of the learned late chief-justice in Keene v. Clark, and it is accordingly found as a fact that the tickets admitting spectators to the performances contained no notice or prohibition against carrying the comedy away, by memory or otherwise, and using and printing the same, nor was any notice to that effect posted in the theater in the view of the spectators. Whatever means a prudent man may adopt to prevent his property from being feloniously taken from him, it cannot, I think, be successfully contended, that, if he chooses to take the risk, he may not leave it exposed without mark or other sign to designate it as his property; or that, by thus exposing it, he would lose his title, and could not afterward recover it, or its value, from one who tortiously took it. A wrong-doer cannot get title to property, or escape the responsibility of his tortious or felonious act, merely because the owner has failed to give public notice or warning that it was not to be stolen. If carrying away in the memory of a spectator, or otherwise surreptitiously obtaining the contents of a play, is without the consent of, or unauthorized by, the owner, and therefore an infringement of his property in the play, the act is not excused by the omission of the owner to notify the audience that they will not be allowed, or are forbidden, to carry it away in that manner. Upon a careful consideration, therefore, of the subject, I have not been able to appreciate the distinction which the learned judges in Keene v. Wheatley and Keene v. Clarke and Crowe v. Aiken have attempted to draw between different modes of obtaining the contents of a manuscript play from its public performance. They are equally objectionable, and are merely different modes of depriving an author of his literary property; and, therefore, any mode which effectuates that purpose is unlawful. The vice-chancellor says, in Prince Albert v. Strange, supra (p. 689), that as to property of a private nature, which the owner, without infringing on the right of any other, may and does retain in a state of privacy, a person who, without the owner's consent, express or implied, acquires a knowledge of, cannot lawfully avail himself of the knowledge so acquired to publish, without his consent, a description of the property. That opinion goes quite as far as is necessary to destroy the distinction alluded to. There is another case to the same effect. In Turner v. Robinson, 10 Irish Ch. 132, a painting, on public exhibition for private emolument, was seen by spectators, some of whom, from recollection, arranged themselves in tableau, representing the figures in the painting, and were photographed. The sale of engravings made from such photographs was restrained by injunction. The mode adopted for carrying into execution what was denounced by the court as an unlawful act, was the same in the Irish case as was approved of in the two cases alluded to, namely, in the memories of the spectators; and the case is therefore opposed, as an authority, to the distinction referred to. My conclusions upon the whole case are, that there was no such publication by the plaintiff, or by his assignor, of the play in question, as to deprive the plaintiff of his common-law right of property in it. That public representations of the play were not a publication of the play so as to take away the common-law right. That there is no presumption in favor of the lawfulness of the manner in which the defendant obtained the play. That the burden is upon him to show that it came into his possession in a lawful manner; and that, having failed to show the lawfulness of his possession, he should be deprived of it. I am therefore of opinion, that the plaintiff is entitled to a judgment restraining the defendant from further printing or publishing the play, and requiring him to deliver up to be destroyed such as are now in print, and that, therefore, the judgment appealed from should be reversed. We were asked by the appellant's counsel, if we came to the conclusion that the judgment below was erroneous, to pronounce an absolute judgment in his favor, and not to send the case back for a new trial. But in the uncertainty of the law on the subject of ordering judgment absolute at general term, we think it safest to refuse the request. The judgment should be reversed and a new tria" ordered, with costs to the appellant, to abide the event. April, Judge Brady. May, Judge Ingraham. June, Judge Barnard. August, Judge Sutherland. The Judge at Chambers will hold the same to and including the Saturday preceding the first Monday of the succeeding month. CIRCUIT COURTS, AND OYER AND TERMINER. February-Part II and Oyer and Terminer-Judge Sutherland. February-Part II-Judge Brady. March-Part II - Judge Sutherland. April- Part I-Judge April- Part II - Judge Sutherland. May-Part I and Oyer and Terminer-Judge Cardozo. June-Part I-Judge Brady. October-Part I and Oyer and Terminer-Judge Bar nard. First Monday of January - Part I, Judge Larremore; Part II, Judge First Monday of February-Part I, Judge Robinson; Part II, Judge J. F. Daly. First Monday of March-Part I, Judge Loew. First Monday of April-Part I, Chief Justice Daly; Part II, Judge J. F. Daly. First Monday of May - Part I, Judge Loew. First Monday of June-- Part I, Judge J. F. Daly; Part II. Chief Justice C. P. Daly. First Monday of October-Part I, Judge Loew. First Monday of November - Part I, Judge Larremore Part II, Judge J. F. Daly. First Monday of December-Part I, Judge J. F. Daly. Court opens at 11 A. M. EQUITY TERM. First Monday of February, Judge Larremore. First Monday of April, Judge Robinson. First Monday of June, Judge Loew. First Monday of November, Judge Robinson. Court opens at 11 o'clock. CHAMBERS. January, Judge Joseph F. Daly. February, Chief Justice Daly. March, Judge_Robinson. April, Judge Loew. May, Judge J. F. Daly. June, Judge Larremore. July, first and second weeks, Judge Larremore. August, first and second weeks, Judge Loew. August, third and fourth weeks, Judge Van Brunt. September, first and second weeks, Judge J. F. Daly. September, third and fourth weeks, Chief Justice Č. P. Daly. October, Judge Robinson. December, Judge Larremore. NEW YORK LAW ASSOCIATION. -At a meeting of the New York Law Association, held at No. 23 Third avenue, in the city of New York, on the 4th day of January, 1871, the following officers were elected for the ensuing term: For President-Louis Levy. For Vice-President-William Doll. For Marshal-Samuel Goldberg. This is an association composed of law students for the discussion of legal themes. All law students who have been studying for the space of two years are admitted. LEGAL NEWS. In the supreme court of California, on the 6th inst., the briefs of Attorney-General Hamilton, and J. W. Sanderson, in certain railroad cases, were thrown out on the ground that they were disrespectful. Hon. William A. Harrison, one of the first judges of the supreme court of appeals, of West Virginia, died in Clarksburg, on the last day of the year, of apoplexy, aged seventy-five years. Judge O. A. Cochrane, has been appointed chief justice of the supreme court of Georgia, to succeed Chief Justice Brown, who has resigned to accept the presidency of a railroad company. The case of The People against Brady, in which the supreme court of California recently decided against the validity of the fifteenth amendment, will be taken immediately to the supreme court of the United States on a writ of error. Gov. Geary, of Pennsylvania, in his annual message, alludes to the unsettled condition of the Delaware boundary, and suggests unpleasant ideas of the whipping-post and pillory to Pennsylvanians, who may come under the barbarous laws of Delaware through a mistaken jurisdiction. The Albany Law Journal. 64 ALBANY, JANUARY 21, 1871. TESTAMENTARY CAPACITY.* By the revised statutes of New York, "All persons, except idiots, persons of unsound mind, married women, and infants, may devise their real estate by their last will and testament duly executed." 2 R. S. 56. Every male person of the age of eighteen years or upward, and every female (not being a married woman) of the age of sixteen years or upward, of sound mind and memory, and no others, may give and bequeath his or her personal estate by will in writing." 2 id. 60. By the acts of 1848 and 1849 the disability of married women was removed, and they may now convey and devise property as if they were unmarried. It must be presumed that the legislature did not intend to make any distinction between the capacity requisite to devise real or personal estate. An idiot is a person who has been without understanding from his birth, and hence the law presumes is never likely to attain any. Shelford on Lunacy, p. 2. It is a want of understanding or mind, and not a perversion of the understanding. 1 Black. Com. 302. | If a person have any reason whatever, he is not an idiot. It was the rule of the Roman civil law, that deaf and dumb persons were incapable of making wills or contracts. 1 Beck. Med. Jur. 881. Blackstone places a person born deaf and dumb on a par with an idiot. 1 Black. Com. 304. In this country, persons born deaf and dumb were for many years held presumptively to be idiots. Brower v. Fisher, 4 Johns. Ch. 441. The better opinion is, that all persons are presumptively of sound mind, and persons born deaf and dumb do not form exceptions to this general rule. Christmas v. Mitchell, 4 Ind. Ch. 535. The burden of proof rests on him who alleges that the party was non compos mentis. Ean v. Snyder, 46 Barb. 230; Delafield v. Parish, 25 N. Y. 9. As to just what persons are prohibited by the term "persons of unsound mind” does not seem to be very definitely settled. It is said in Blanchard v. Nestle, 3 Denio, 37, that the term "unsound mind," as here used, was synonymous with non compos mentis. This cannot be true, for, had the legislature so intended it, it would not have made use of the word idiots, for the term non compos mentis includes idiocy as well as every other infirmity of mind. It has been repeatedly said that the law never attempts to measure the strength or the degree of a person's understanding, be it ever so weak, and that the only question in determining the validity of a will was, whether or not the testator was totally deprived of reason at the time of executing the will. Stewart v. Lispenard, 26 Wend. 253; Blanchard v. Nestle, 3 Denio, 37; Newhouse v. Godwin, 17 Barb. 236, * Prepared as a note to the case of Clark v. Sawyer, 3 Sandf. Ch. 351-a new edition of which reports is now being prepared by Mr. Ketchum. The rule laid down by the above cases is, that no degree of imbecility short of actual idiocy renders a party incompetent to make a will. This extreme doctrine has been severely criticised by the later decisions of the court of appeals on the same subject, and these cases must be regarded as substantially overruled. Delafield v. Parish, 25 N. Y. 9; Van Guysling v. Van Kuren, 35 id. 70. See, also, Christie v. Clark, 45 Barb. 529; Ean v. Snyder, 46 id. 230. In the matter of Forman's Will, 54 id. 274. The true rule was laid down by Mr. Justice Davies in Delafield v. Parish, that the testator must have sufficient capacity to comprehend the conditions of his property, and his relations to the persons who were or should be the objects of his bounty, and the scope and provisions of his will, and these are the proper questions to be submitted to a jury in such cases. McClintock v. Curd, 32 Mo. 411; Beaubien v. Cicotte, 12 Mich. 459; Converse v. Converse, 21 Vt. 168; Daniel v. Daniel, 39 Penn. St. 191. UNDUE INFLUENCE. The testator must not only have a disposing capacity, but the instrument must be his own free act, and a jury in deciding questions of this nature should ask themselves whether, from all the circumstances of the case, they regarded it as the will of the testator, or the act of some other person or persons. 1 Redf. on Wills, 131. Every species of influence which goes so far as to overcome free agency must be regarded as undue, and all fraudulent acts are embraced in the term. A person has the right, in a fair and legitimate manner, to urge another to make a will in their favor, and an influence sufficient to avoid a will must amount to coercion or virtual control over the testator. Gardner v. Gardner, 22 Wend. 526; Low v. Williamson, 1 Green's Ch. 82; Tyler v. Gardner, 35 N. Y. 559; Wier v. Fitzgerald, 2 Bradf. 42. And it must operate on the mind of the testator at the time the will is made. Eckert v. Flowry, 48 Penn. St. 46; Turner v. Cheesman, 15 N. Y. Ch. 343; Thornton v. Thornton, 39 Vt. 122. DRUNKENNESS. It is not definitely settled just what degree of drunkenness will avoid a contract or will. We think the same rule must prevail in these cases as prevails in cases of imbecility or disordered mind produced from other causes. Questions in every case must always be, Had the testator at the time of making the will a disposing mind, and did he act freely? A person deprived of reason by intoxication cannot make a valid contract or will. Prentice v. Ackorn, 2 Paige, 30; Duffield v. Robison, 2 Harring. 375. If a person under the influence of liquor makes a will which he would not have made had he not been under that influence, then it is submitted the will should not stand, because it cannot be said to be his free act; and, so far as the mind of the testator is influenced in making particular bequests by the use of intoxicating liquors, to that extent it must be held that the effect was produced by an undue influence. It is said in Peck v. Casey, 27 N. Y. 9, that neither habitual intoxication or the actual stimulus of intoxi. cating liquors at the time of executing a will incapacitates a testator, unless the excitement produced thereby be such as to disorder his faculties and pervert his judgment; but this case is not inconsistent with the principles before stated. For the decision was based upon the ground that the mind of the testator had not become impaired from habits of intemperance, and was not at the time of the execution of the will so far under the influence of liquor as to affect the character of the instrument. Drunkenness is a species of insanity, which, often repeated, may become fixed and permanent, but is more often temporary in its duration; and it would be absurd to say, that a person whose senses were blurred and memory obscured by long-continued habits of intemperance, or whose brain was fired by excessive indulgence at the time, could make a valid disposition of his property by will or contract. THE LAW OF ULTERIOR DESTINATION AS ive blockades; the former being an attempt to visit neutral vessels with the penalties attending the violation of blockade, while escaping from the necessity of actually employing a force sufficient to draw the required cordon round the invested port. But this practice has, at least in modern times, never received any countenance from civilized states; and it is now a well-settled principle of the maritime law of nations, at all events since the armed neutrality of 1780, to which Great Britain became a party by her convention with Russia, of January, 1801, that, to use the language of the powers assembled at Paris, in the congress of 1856, when the subject received much consideration, 'blockades, in order to be binding, must be effective; that is to say, maintained by a force sufficient to really prevent access to the coast of the enemy."" "It is, however, with one only of the incidents to a blockade stated above, that we have now to do; that, namely, which arises from the vicinity of neutral ports, at a short distance, generally, from the blockaded coast, which, while ostensibly affording a neutral terminus and place of consignment for the cargo, are, in reality, depots from which the necessities of the place may effectually be supplied. The voyage, in short, is broken in two. The first stage is between neutral termini; the transport of the cargo assumes the form of a legitimate transaction of commerce, and the ship is free, as being the property of a neutral trader. The second stage is, for the relief of a belligerent port; the goods are contraband of war, and the vessel, if caught in delicto, is, from the outset of her hazardous voyage, liable, together with her cargo, to capture and confiscation as prize of war. Can these consequences be, by relation back as it were, made to attach on the first stage also? Can a yenture, to all intents legitimate, be infected with the taint of contraband, to be inferred from the supposed ulterior intention or purpose in the minds of those engaged in the transaction, or was there locus penitantiæ,' in the intermediate and neutral port? The reply to these questions involves the doctrine of what is known as that of continuous voyage,' or as some have termed it, 'ulterior destination,' upon which some difference of opinion has existed, as between the courts of this country and those of the United States, a difference resting on principles which it is now proposed to examine. "The recent civil war in America presented many cases illustrative of the principles of the maritime law of nations, of which few are more interesting than the law of blockade. For, in its connection with contraband of war and the rule of ulterior destination, or, as it is sometimes termed, continuous voyage, a blockade, if but moderately well sustained, is undoubtedly one of the most effective methods which can be employed by a belligerent in weakening the resources, by cutting off the supplies, of his enemy. But, while this is so, it is also well known, that no method of what we may call negative warfare is subject to so many disturbing incidents, the effect of which it is almost impossible to avoid. On the one hand, the ships composing the blockading squadron may be insufficient in number, or defective in speed or in caliber; the extent and nature of the coast they are required to cover may be wide and exposed, and they are at any moment liable to dispersion by stress of weather, or may be driven away altogether by a "The rule to which this doctrine is a corollary is well superior force of the enemy. On the other hand, the known. As it is stated by Sir W. Scott, the sailing opportunities presented of evading, or, as it is termed, with an intention of evading the blockade is a begin'running' the blockade, the vicinity of ports belong-ning to execute that intention, and is an overt act coning to neutral states, which offer facilities for forming depots of goods intended for the relief of the place invested; the high premium attending the successful venture; the romantic hazard of the attempt itself— these all combine to render blockade a method of warfare one not only of great uncertainty and difficulty, but which, in its contact with neutral ships, gives occasion to questions of international law by no means easy of solution. "These almost inseparable incidents to a blockade have given rise to what are called 'paper' blockades, or, as they have been termed, blockades by 'notification,' or 'notoriety,' as distinct from actual or effect stituting the offense; and from that moment the blockade is fraudulently evaded. The Columbia, 1 Rob. p. 154. To a similar effect is the language of the supreme court of the United States in one of the most recent cases on the subject, in which the doctrines underwent examination : "It is,' said Chief Justice Chase, a well-established principle of prize law as administered by the courts of the United States and of Great Britain, that sailing from a neutral port with intent to enter a blockaded port, and And see on this subject of blockades by "notification" and notoriety, the Betsey, 1 Ch. Rob. p. 95; the Mercurius, id. p. 83; Northcote v. Douglass, 10 Moore P. C. p. 59. with knowledge of the existence of the blockade, subjects the vessel, and, in most cases, the cargo, to capture and condemnation. Yeaton v. Fry, 5 Cranch, 335; 1 Kent Com. p. 150; the Frederick Molke, 1 Rob. 72. We are entirely satisfied with that rule. It was established with some hesitation when sailing vessels were the only vehicle of ocean commerce; but now, when steam and electricity have made all nations neighbors, and blockade running from neutral ports seems to have been organized as a business, and almost raised to a profession, it is clearly seen to be indispensable to the efficient exercise of belligerent rights. It is not likely to be abandoned, until the nations by treaty shall consent to abolish capture of private property on the seas, and, with it, the whole law and operation of commercial blockade. The Circassian, 2 Wall. (supreme court), p. 135; and see the Admiral, id. 3, p. 603.' 66 Acting, therefore, upon this view of the law, it was decided by the court that a vessel sailing from a neutral port, with intent to violate a blockade, is liable to capture and confiscation as prize from the time of sailing; and that the intent to violate the blockade is not disproved by evidence of a purpose to call at another neutral port, not reached at the time of capture, with ulterior destination to the blockaded port; and further, that evidence of intent to violate blockade may be collected from bills of lading of cargo, from letters and papers found on board the captured vessel, from acts and words of the owners and hirers of the cargo and their agents, and from the spoliation of papers in apprehension of capture. "So far as regards the destination of the vessel itself; in the case in question, however, the court proзeeded to deal with the cargo, and doing so, gave, as will be seen, to the doctrine of continuous voyage an extension, of which it had not before been considered as capable. ***Neutrals,' said the chief justice, 'may sell in their own country to belligerents whatever belligerents may choose to buy. The principal exceptions to this rule are that neutrals must not sell to one belligerent what they refuse to sell to the other; and must not furnish soldiers or sailors to either, nor prepare, nor suffer to be prepared, armed ships, or military or naval expeditions against either. So, too, neutrals may convey in neutral ships, from one neutral port to another, any goods, whether contraband or not, if intended for actual delivery at the port of destination, and to become part of the common stock of the country or of the port. *** British merchants had, as neutrals during the war, a perfect right to trade, even in military stores, between their own ports, and to sell at one of them goods of all sorts, even to an enemy of the United States, with knowledge of his intent to employ them in rebel war against the American government, provided only the trade were a real trade, in the course of which goods, conveyed from one port to another, became incorporated into the mass of goods for sale in the port of destination, and provided sale means sale to either belligerent without partiality to either. If, however, there was an intention, or, as the court termed it, in a recent case in this country, "a mental process," of sending the goods forward to a blockaded port, it has been held that there is, as far as the cargo is concerned, one continuous voyage, which cannot be broken by any transaction at the intermediate port, by their being unladed, transhipped, transferred from hand to hand, or even sold, unless it be a bona fide sale in the market. They are, therefore, liable to capture and confiscation on the outward voyage to the neutral port. So, also, is the ship, unless there be reason to conclude that her owners were ignorant of the ulterior destination of the cargo, and did not hire their ship with a view to it, But if the ulterior destination is the known inducement to the partial voyage, and the ship is engaged in the latter with a view to the former, then, whatever liability may attach to the final voyage must attach to the earlier undertaking with the same cargo, and in continuity of conveyance. The ships are planks of the same bridge, all of the same kind, and all necessary to the convenient passage of persons and property from one end to the other.' The Bermuda, 3 Wall. 514; The Stephen Hart, id. 559; The Springbok, id. v. 1. "This decision has given to the doctrine of continuous voyage an important influence, as bearing upon and restricting the privileges of neutral states. The principle itself has been considered to take its rise from what is known as the Rule of War of 1756, under which a neutral cannot carry on trade between a belligerent country or its colonies, if he were excluded from that trade in time of peace. It is thus spoken of by Sir W. Scott, in a celebrated judgment (The Immanuel, 2 C. Rob. p. 286), which states very clearly the law as it then existed, and which, indeed, may be said to have given the rule much of the influence which it exercised on the colonial trade of an enemy during the earlier part of the present century. Regarding the question as affecting neutral property, he observes: "Upon the breaking out of a war, it is the right of neutrals to carry on their accustomed trade, with the exception of the particular cases of a trade to blockaded places or in contraband articles (in both which cases their property is liable to be condemned), and of their ships being liable to visitation and search; in which case, however, they are entitled to freight and expenses. I do not mean to say, that, in the accidents of a war, the property of neutrals may not be variously entangled and endangered; in the nature of human connections, it is hardly possible that inconveniences of this kind should be altogether avoided. Some neutrals will be unjustly engaged in covering the goods of the enemy, and others will be unjustly suspected of doing it; these inconveniences are more than balanced by the enlargement of their commerce; the trade of belligerents is usually interrupted in a great degree, and falls, in the same degree, into the lap of neutrals. But, without reference to accidents of the one kind or the other, the general rule is, that the neutral has a right to carry on, in time of war, his accustomed trade, to the utmost extent of which that accustomed trade is capable. Very different is the case of a trade which the neutral has never possessed, which he holds by no title of use and habit in time of peace, and which, in fact, can obtain in war by no other title than by the success of the one belligerent against the other, and at the expense of that very belligerent under whose success he sets up his title." "Such being the rule under which a neutral could not export goods directly from the mother country of the enemy to its colonies, it is plain that it was susceptible of evasion by the simplest expedient of the neutral first importing such goods to his own country, so as to make them part of the national stock of that country, and then exporting them to the enemy's colonies. And hence arose questions of some difficulty then, and of still greater difficulty and embarrassment now, as to what amounted to a direct trade, or what was to be regarded as an intermediate bona fide importation to a neutral country. And though the rule of war of 1756 has become obsolete, inasmuch as the free trade which England has thrown open to the navigation of the world enables other nations to |