"Great Britain, without any general regard for the encourage"ment of it in others, may it not be highly for the encourage"ment of learning in this country that foreigners should be "induced to send their works, composed abroad in English or

foreign languages, to be first published in London?" Then his Lordship proceeded to deal further with the question so admirably, that we can do no better than quote largely from so luminous a judgment.

66

66

"The question really is," said he, "whether a foreigner, by sending to and first publishing his work in Great Britain, "acquires a copyright. Upon this entirely depends his power "to transfer such right to a purchaser. It is freely admitted, "that a foreigner domiciled in England, though neither natu"ralised nor made a denizen, if he composes a literary work "here, may acquire a copyright in it; and the counsel for the "defendant would not deny that if a foreigner being here for a temporary purpose, while here wrote a poem, he might publish "it and acquire a copyright in it here. If he had composed it "in his own country, and brought it over in his memory, reducing it into writing here for the first time, or if he had "written it in his own country, and brought the manuscript with "him, would it have made any difference as to his rights as an "author? Can his personal presence within our realm be at "all essential to his right as an author, if he does that by an agent, which it cannot be disputed he might do in his own proper person? The right which he has in England is the right of acquiring, under certain conditions, a monopoly in England for a certain number of years by the sale of his work; "but this right, which is incorporeal and is in the nature of "personal property, he carries with him wherever he is, and all "that is to be done, fully to enjoy it, he can effectually do by "another. Where then can be the necessity of crossing from "Calais to Dover, before giving instructions for the publication "of his work, and entering it at Stationers' Hall? The law of "England will protect his property and recognise all his rights, "and give him redress for wrongs inflicted upon him within our territory, though he never set foot upon it. In the 6th of Henry VIII., the Common Pleas held that aliens residing in "France might maintain an action of debt here, for, notwith"standing he is an alien, he shall receive protection in all per"sonal actions if he be within this realm (and a friend), although "it be otherwise with real actions, for no alien can have land "within the realm unless he be a denizen."-(Dyer, 2 b.) And if the alien had never been in the country, the court held that it would clearly make no difference, and among the instances

offered, an historic example might have been adduced, as Napoleon Bonaparte, when First Consul, brought an action for libel in our courts, although, from the Peace of Amiens not lasting, it never came to trial.

"For these reasons," continued his Lordship, "we think that "if an alien residing in his own country were to compose a "literary work there, and continued to reside there without "having first published his work, nay more, should cause it to "be first published in England in his own name and on his own account, he would be an author within the meaning of our "statutes for the encouragement of learning, and he might "maintain an action in our courts against any one who in this "country should pirate his work. We wish to be understood "as speaking of the rights of an author who first publishes his "work here. I understand that in America and on the continent " of Europe, when a literary work is once published, the author can only claim the copyright vested in him by law-by the law "of the country, where he publishes; as to all others it becomes "publici juris. This is the doctrine of our courts, and the "legislature must be considered as having adopted and sanc"tioned it by the enactments of international copyright statutes."

Then the origin of the contrary doctrine was traced " to a "dictum of the late V. C. Shadwell in Guichard v. Mori (9 Law "Jour. 227, Chanc.) His Honor there observes, 'The circum"stance that he was the owner of the seals will not justify the "court in interfering, for he was a foreigner, and the court does "not protect the copyright of a foreigner.' If that dictum went "to the full extent that a foreigner residing abroad who did not "publish his work could not acquire a copyright by publication in England, it would not be entitled to much weight, for it is merely "thrown out obiter. The case had no connection with the law "of copyright, the application being for an injunction to restrain "the defendants from fraudulently using certain labels and seals "alleged to have been used by the plaintiff in his business of a "medicine vendor. Looking to the context, there is reason to "believe that the Vice-Chancellor merely meant that the court "does not protect the copyright of a foreigner who has published "his work abroad; and we afterwards find that this must have "been the reason, because in the subsequent case of Bentley v. "Forster (10 Simons, 320), he expressly held the doctrine for "which the plaintiff here contends. Seeing then if an alien "friend wrote a book when abroad or in this country, and gave "the British public the advantage of his industry and knowledge by first publishing his book here, he was entitled to the protection of the law relating to copyright in this country;

66

"the only other case relied upon by the defendant was Page "v. Townsend (5 Simons, 395); but this really has no applica"tion, for it turned on the construction of some acts of parlia"ment passed for the protection of prints engraved, etched, "drawn and designed in England. Then came Chappell v. "Purday, in which the doctrine was first solemnly enunciated "that a foreign author, residing abroad, who composes a work abroad, has not at common law or under the statutes any "copyright in this country. But it was not necessary there for "the court to affirm this doctrine, as there was really a good "defence to the action, on the ground that the musical composi"tion in question had been published in Paris several months "before it was published in England. This doctrine against the " rights of foreigners was very deliberately considered in Cocks "v. Purday, where the contrary doctrine, which had been laid "down by the Court of Exchequer in the time of Lord Abinger, "was admitted and acted upon by the unanimous opinion of "the judges of the Common Pleas. This decision, as I am "informed by my colleagues of the Court of Queen's Bench, was "not only followed, but was fully considered and entirely ap"proved of by Lord, Denman and all his brethren. I may "likewise mention, that in Ollendorf v. Black (20 Law Jour. "165), Knight Bruce, V. C., intimates a strong opinion in favour "of the right of a foreign author who first publishes in Eng"land. We may perhaps, therefore, be justified in thinking the weight of authority is really in support of the doctrine on "which our judgment is founded."

86

It is to be regretted that the liberal and enlightened doctrine established by this solemn decision should have been since carped at by certain interested parties, but it is confidently submitted that it will neither be reversed upon appeal nor altered by a restrictive and narrow legislation.

COSTS-4 ANNE, c. 16, s. 5.

Partridge v. Gardner (in error), 20 Law Jour. Exch. 307.

In a recent note upon the case of Callander v. Howard (20 Law Jour. C. P. 66) the apparently very conflicting cases upon this section of the statute of Anne were compared, and as a result, the construction put upon it by that case (which professedly and in terms overruled Partridge v. Gardner, a modern decision of the Court of Exchequer, 4 Exch. 303) was adopted as most consonant to authority and common sense. Since then a writ of error has been brought in the case of Partridge v.

Gardner, on the strength probably of its having been disapproved of in Callander v. Howard, but unsuccessfully, as the judgment of the Court of Exchequer was affirmed. The decision in Callander v. Howard was not however impugned; but the difference which in our note was pointed out as existing by reason of the declaration in Partridge v. Gardner being bad, was held by the Court of Exchequer Chamber (some three weeks after the printing of that note) to suffice to distinguish the cases. But even in this last case, in which the declaration was bad on general demurrer, Maule, J. in one place observes, "If the defendant had succeeded upon one issue in fact, and the plaintiff on the others, the plaintiff would clearly be entitled to costs upon the issues found for him;" while elsewhere he says, suppose the issues are immaterial, can the plaintiff get the costs of them?" and "it may be said that all the issues become immaterial when the declaration is bad." This seems at first to involve a possible contradiction, as if one material issue of fact were found for a defendant, and fifteen other immaterial for the plaintiff, it would be puzzling to reconcile both dicta. It would seem, however, that at all events, in the case of issues rendered immaterial (as it were) by the insufficiency of the declaration, the former dictum must be taken with a corresponding limitation; and accordingly we find it expressly laid down by Lord Campbell, C. J., in delivering the judgment of the Court, that "the statute of Anne seems to proceed upon the supposition that there is good cause of action disclosed upon the declaration, and that if there is none, the plaintiff shall not have his costs." And this is exactly the view of Patteson, J., who said during the argument, "the statute of Anne seems to assume that, but for the good plea on which the defendant succeeds, the plaintiff would have recovered in the action.”

COUNTY COURT APPEAL-IN WHAT CASES IT LIES.

Cawley v. Furnell, 20 Law Jour. C. P. 197.

East Anglian Railways Company v. Lythgoe, 20 Law Jour. C. P. 84. THESE cases assume considerable importance from the small proportion which the cases in which parties to plaints in County Courts elect to have tried by a jury, bear to those in which they are content to leave them entirely to the decision of the judge. The point which in the latter case had occurred to Maule, J., as one of difficulty, was raised in the former, namely, whether an appeal lay at all from the decision of a judge of a County Court

when neither party had required a jury, and it had been left to the judge to decide on the facts and the law together, these moreover not being separated by any pleadings.

66

66

6

"The solution of that question," said Maule, J., " must depend upon the construction which is to be put on the 13 & 14 Vict. c. 61, s. 14, which provides that if either party in any cause 'of "the amount to which jurisdiction is given to the County Courts "by this act,' which is the case here, shall be dissatisfied with "the determination or direction of the said court in point of law, . . such party may appeal from the same to any of the superior courts of common law at Westminster, two or more "of the puisne judges whereof shall sit out of term as a court "of appeal for that purpose." Thus the question became what was comprehended within the meaning of the words "determination or direction of the court in point of law;" and the opinion of the Court of Appeal was thus expressed :"There is a determination in point of law when the court has nothing but law to determine, as when a question is raised upon demurrer or upon a special verdict, and though those proceedings do not exist in a County Court eo nomine, yet "similar proceedings must take place in substance. For suppose a party were to make a claim which, on his own showing, 66 was one which in point of law could not be sustained, as, for "instance, if he made a claim for a sum of money as due to him upon a voluntary promise without consideration, and the opposite party were to object that such a claim could not be "sustained in point of law; or, on the other hand, if the "defendant, in answer to a claim for a debt, were to rely as a "defence upon the fact that the cause of action did not accrue "within three years, the determination of the court upon these questions would be a determination in point of law. The term "direction' applies when the cause is tried by a jury, and the judge lays down to them a proposition as a matter of law, as, "for instance, that a certain interest cannot pass except by "instrument under seal;" and when this direction is such as to mislead the jury, who act upon it, it is called a misdirection, and it is a very common proceeding upon such ground of complaint being established, to obtain a new trial.

66

66

But in these cases, as observed by Maule, J., in the last cited of them, the complaint is not that the judge misdirected the jury, for there was none, but that "he misdirected himself;" and the court thus proceeds to show the difficulty of discriminating between the judge's self-direction (if we may be forgiven the word) in point of law, and his finding a disputed fact (which may be the hinge of the law point) in a