plaintiffs' were imported that year from England into New York. Now it is conceded that it would be perfectly competent to compare the plaintiffs' blankets with the other damaged blankets, in order to satisfy the jury that it was not the damage of the sea which operated so peculiarly and injuriously. It is not contended but that it would be proper to prove that they all came from England; but that evidence would be much less satisfactory than to trace them to one manufactory in England. If you may properly go to the manufactory, why not to the name of the manufacturer? It is not easy to draw the line. They are marked and injured as no other blankets were, which have been imported. They may have been injured by persons at Wood's manufactory, without his knowledge, and so without any intention of fraud on his part; it may have been done by some enemy, with a view to prejudice Wood in his business. In the case of Holcombe v. Hewson, before cited, Lord ELLENBOROUGH said, "let the plaintiff call those who frequented the defendant's house and drank the beer which he sent in." Why not, in the case at bar, call those who bought of Wood, blankets marked in this extraordinary manner at the same time? The object is not to impute a fraud to the manufacturer (for we do not see any motive he could have to destroy the blankets), but to prove in a suit between other parties, that the injury did not arise from sea damage. And the evidence that the great number of bales of blankets which came that year, in six ships, from Wood's manufactory, had these distinguishing marks upon them, which are ascertained to have been such as would be occasioned by sulphuric acid, is we think admissible as tending to disprove the allegation of the plaintiffs, that the injury arose from the perils of the sea. .. We are all of opinion that the judgment should be rendered upon the verdict. 50. LIST PUBLISHING CO. v. KELLER. (1887. FEDERAL DISTRICT COURT. NEW YORK. 30 Fed. 772.) . . . In Equity. Bill for injunction to restrain infringement of complainant's copyright. Wallace MacFarland, for complainant. Edmund Wetmore, for defendant. WALLACE, J.-The parties are the proprietors and publishers of rival "society" directories, which purport to give the names and addresses of those persons in New York City who are supposed to be people of fashion. The complainant asserts that its copyrighted directory, "The List," is infringed by the defendant's directory, the "Social Register," and has made a motion for a preliminary injunction. The question in the case is whether the defendant, in compiling his directory, has done so by his own original labor, or whether, in order to spare himself time and expense, he has copied the names and addresses given in the Social Register" from the "List. If he has copied any part of the complainant's book, he has infringed. the copyright. He has no right to take, for the purposes of a rival publication, the results of the labor and expense incurred by the complainant, and thereby save himself the labor and expense of working out and arriving at these results by some independent road. . . . The compiler of a general directory is not at liberty to copy any part, however small, of a previous directory, to save himself the trouble of collecting the materials from original sources. . . . Either of the present parties could lawfully use the general city directory to obtain the correct addresses of the selected persons; nor is it doubted that the defendant had the right to use the complainant's book for the purpose of verifying the orthography of the names, or the correctness of the addresses, of the persons selected. But if the defendant has used the List" to save himself the trouble of making an independent selection or classification of the persons whose names appear in the "Social Register," although he may have done so only to a very limited extent, he has infringed the complainant's copyright. In a case like this, when a close resemblance is the necessary consequence of the use of common materials, the existence of the same errors in the two publications affords one of the surest tests of copying. The improbability that both compilers would have made the same mistakes, if both had derived their information from independent sources, suggests such a cogent presumption of copying by the later compiler from the first that it can be overcome only by clear evidence to the contrary. Mawman v. Tegg, 2 Russ. 393; Spiers v. Brown, 31 Law T. 16; Lawrence v. Dana, 2 Amer. Law T. (N. S.) 402. The complainant relies upon this criterion here. The "List" contains a selection of about 6000 names and addresses of persons residing in New York City out of the 313,000 names which appear in the general city directory. The "Social Register" contains about 3500 names and addresses of persons residing in New York City, and of this number over 2800 appear in the "List." The fact that 2800 of the names and addresses in the defendant's book originally appeared in the complainant's book would, standing alone, be quite inconclusive. But when it is shown that 39 errors in complainant's book, consisting of misprints, erroneous addresses, insertion of names of persons who never existed, and insertions of names of deceased persons, are reproduced in the defendant's book, although it was not published until more than a year after the complainant's book was published, a strong presumptive case of piracy is made out. The depositions on the part of the defendant are addressed in part to an explanation of his reproduction of these errors consistently with the theory that they were not copied from the complainant's book. These depositions have been carefully read and considered, and the conclusion has been reluctantly reached that the explanation is inadequate. It will not be profitable to analyze the depositions. It suffices to state that the case for the complainant is such as to call for a full and explicit vindication on the part of the defendant. If it is true that his directory was prepared from several private visiting lists furnished to Ashmore for the purpose, these lists should have been produced or their non-production accounted for; and, if they could not be produced, corroborative testimony of their existence, the sources from which they were obtained, and their contents should have been adduced. It may be that the presumption which at present must prevail will be overthrown by the proofs at the final hearing of the cause, but, as the case now appears, the complainant is entitled to an injunction. The injunction will be limited to the extent to which the defendant's book is identical with the complainant's book. TITLE IV: EVIDENCE TO PROVE THE DOING OF A HUMAN ACT 53. JOHN H. WIGMORE. Principles of Judicial Proof. (1913.) The general classification of Circumstantial Evidence (ante, No. 3) is into three groups: Concomitant, Prospectant, and Retrospectant. When the doing of a Human Act is the probandum, this classification is to be understood thus: Place yourself at a time before the Act, if any, was done; note any circumstance (e.g. a plan) that points forward to the act probably being about to be done or not done or done by a specific person; such circumstances are Prospectant. Then place yourself at the time and place of the Act, if any; note the circumstances (e.g. a knife with initials) which point to the doing or not doing of the act then and there, or its doing by a specific person; these form the Concomitant evidence. Then place yourself at a time subsequent to the Act, if any, and note the circumstances (e.g. stolen goods found on the accused) which point back in time to the doing or not doing of the act, if any, or its doing by a specific person. No exact line can be or need be drawn between the three groups; they are merely useful for grouping typical cases. 54. ALEXANDER M. BURRILL. A Treatise on Circumstantial Evidence. (1868. p. 586.) Taking for the subject of investigation, a case of murder, the following may be supposed to present the corpus delicti, as fully proved. A woman has been found at night, dead in her bed, with several wounds on the head, apparently inflicted with a hatchet or similar implement, and the bed itself partially consumed by fire. In the effort to discover the perpetrator of this offense, the following series of facts may be supposed to appear. A. On examining the premises, during the night, and soon after the discovery of the crime, a man's hat or cloak is found on the ground in the rear yard of the house.... The questions which immediately and naturally suggest themselves, in reference to the article found, are : "How came it to be there?" and "What does it mean?" Viewed with reference to its ordinary uses, it indicates, as the reasonable cause of its existence, the presence of a man at the spot where it was found. But the fact has a more important aspect than this. The extraordinary position of the article gives to it an extraordinary character, indicating, as its immediate cause, the existence of some unusual occasion, and a correspondingly unusual condition on the part of the supposed wearer.... The principal fact of the crime affords the only means, yet known, of accounting for the minor fact just shown, and aids in giving to it the interpretation sought, which is this: that the wearer of the hat or cloak was present at the scene of the crime, on the night of its commission; and that he escaped from it in haste, and by an unusual way, in order to avoid observation. So far as the finding of the article in question is regarded as a purely physical fact, it implies, indeed, two successive presumptions or inferences: first, that the article actually belonged to, or was habitually worn by the individual supposed to be designated; and next, that such individual was the person who wore it on the night of the murder. Each of these is liable to be met by what has already been explained as an infirmative supposition. . . The article may not be satisfactorily and fully identified; or, if identified, it does not necessarily follow that it was worn by the individual on the occasion; another person, really connected with the crime, may, accidentally or intentionally, have obtained possession of it and worn it. Another fact of the same physical class comes to light. A hatchet, with which a blow competent to have inflicted the wounds observed on the body might have been given, and itself apparently stained with blood, is found (with indications of having been recently thrown there) in a corner of the yard of the premises, and not far from the spot where the other article was discovered and this hatchet, also, is believed, or indeed proved to have belonged to the same individual. This is a still more important fact than the one already noticed. It indicates what is always necessary to be shown against any accused party, the general fact of the possession of the means of crime. Viewed by itself, the supposed bearing and meaning of this last circumstance might be met and explained or avoided by the same species of suppositions as were applied to the first one; going to show that the appearance observed might not, or, indeed, did not proceed from the cause assigned. The implement may have been mistaken for another; it may have been accidentally thrown where it was found; what has been taken for blood upon it may be nothing more than rust; or, if actually the party's hatchet, possession of it may have been acquired by another person. But the fact of convergent and united bearing, which now, for the first time, presents itself as an element of proof, begins to show that this common determinate tendency from two distinct points upon another, is not accidental, but must be due to the operation of some real, inducing cause, common to both. . . . A third fact is brought to light. The individual supposed to have been the owner or wearer of the article or instrument found, or, at least, a person strongly resembling him, and by some sworn to have been the same person, is ascertained to have been actually on the premises where the crime was committed, on the night of its commission. This is a more important fact than either of those yet discovered. . . . It presents the particular human agent sought for, not presumptively and inferentially, as the other facts did, but directly and absolutely. It presents him as possessing opportunity to commit the crime; a fact always necessary to be made out against every accused party. The facts, thus apparently united as discovered, are reasonably supposed to have actually occurred in the same connection; and the interpretation which the discoverer and observer naturally give to them is this: that the individual indicated was concerned in the commission of the crime; and that, seeking to escape by a back way, in order to avoid observation, he accidentally dropped his hat or cloak, in his haste, or purposely threw it off as an encumbrance to motion; and that the implement was disposed of in a similar way. This interpretation gives to each fact a natural meaning. . . . The probability on which it rests may still be met and qualified by the following infirmative suppositions. First, it may be a case of mistaken identity. . . . Next, conceding the point of identity, and that the individual supposed to have been seen was actually present, so long as an exclusive presence is not shown, it is possible that the crime might have been committed by another also present. But, here, again, the associated facts of the articles found present difficulties in the way of such an infirmative supposition. Still, there is room left for the following infirmative supposition, or rather hypothesis of the case, as it may, with stricter propriety, be termed, from its involving the assumption of several connected facts. The real criminal may have fabricated all the physical evidence hitherto discovered; and having possessed himself of the criminative articles, and finding the accused present on the premises, took advantage of that as a circumstance to aid his plans against him; and having waited until the accused had left the house, committed the crime and then threw the articles where they might seem to indicate the presence of the owner in the act of secretly making his escape. But this whole hypothesis is subject to be overturned by a single additional fact. For, supposing it proved that the accused, towards whom all the previously discovered facts uniformly pointed, was seen, on the night of the crime, leaving the premises, or their immediate vicinity, by an unusual way, as over a fence; or in an unusual manner, as in great secrecy or in great haste; or in an unusual personal condition, as without a hat, — the case would be restored to the original criminative supposition that he did escape by the way indicated by the position of the articles, and that he dropped or threw them where they were found; the coincidence in regard to the hat, if such were the article, materially increasing its probability. . . Additional facts are brought to light. The accused, when seen on the premises, was observed to wear a cloak similar to the one found, and appeared to have something concealed under it. This favors the idea that he may have thus concealed the hatchet which was found, and evidently used. In the course of further inquiry, a piece of string is found to have been attached to the handle of the hatchet. A piece of string is now found attached to the cloak, and these two pieces, on being brought together, are ascertained to be of precisely the same kind, showing that they were once united. This close physical coincidence converts the conjecture just mentioned into a reasonable presumption, amounting almost, if not quite, to a certainty. And the bearing of these last circumstances, taken together, reveals a new and most material fact; showing that the accused went to the premises, prepared for the commission of the crime, and having adequate means of its commission, which means were actually used. B. The circumstances which have thus far been supposed to be developed by a course of investigation are, almost exclusively, those of the concomitant class. . . . There is generally a disposition to carry this process a step further, by ascending to the ultimate origin of the whole transaction, and inquiring what could have induced or instigated the individual to whom the facts |