TONSON U. COLLINS. esced in; upon this suspicion, and because the Court inclined to the plaintiff, it was ordered to be heard before all the Judges. Afterwards, upon certain information received by the Judges, that the whole was a collusion, and that the defendant was nominal only, and the whole expence paid by the plaintiff, they refused to proceed in the cause; though it had been argued bond fide, and very ably, by the counsel, who appeared for the defendant. They thought this contrivance to get a collusive judgment was an attempt of a dangerous example, and therefore to be discouraged." Per Willes, J., 4 Burr. 2327. The same question was again elaborately discussed in a case respecting the sale of Thomson's Seasons, Millar v. Taylor; which is reported at great length in 4 Burr. 2303. There it was decided by Lord Mansfield, C. J., Aston, J., and Willes, J. (Yates, J., dissent.), that anthors have by common law a sole and exclusive copyright in perpetuity: see a short note of that case post, 675; see also Osborne v. Donaldson, 2 Eden, 327. The case of Millar v. Taylor, however, was soon afterwards overruled by a decision in the House of Lords. One Beckett had purchased the copy-right of Thomson's Works from Millar's executors, and filed a bill in 1774 against the Donaldsons, who had published some part of them, to account for the profits, and to restrain them by injunction from publishing the same in fu ture. The Donaldsons, in their answer, said, they believed that Millar did not become entitled to the copy-right for a longer time than the several terms limited by 8 Ann. The works had been originally published in 1729, and the 28 years expired in 1757. Lord Bathurst, C., decreed a perpetual injunction, and an account. Against this decree the Donaldsons appealed to D. P., where it was reversed, a majority of the Judges, (viz. Eyre, Nares, Perrott, Gould, Adams, and De Grey, against Ashurst, Blackstone, Willes, Aston, and Parker), being of opinion against the perpetuity or common law right, and thereby establishing, that the exclusive right of authors is confined to the times limited by the act of Parliament: Donald son v. Beckett, 7 Bro. P. C. 88, or 2 Bro. . C. 129 (Tomlin's ed.), 4 Burr. 2408, S. C.-See the observations of Ld. Kenyon in Beckford v. Hood, 7 T. R. 620: where it was held, that the property being vested in authors for certain periods, the common law remedy for a violation of it attaches within the times limited by 8 Ann.; and therefore an action on the case for damages may be maintained where a work has been pirated, although it has not been entered at Stationers' Hall, and was originally published without the author's name; and that the penalties thereby given are only an accumulative remedy. See also Thompson v. Symonds, 5 T. R. 41; Cary v. Longman, 1 East, 358, and notes; Roworth v. Wilkes, 1 Camp. 94; Barfield v. Nicholson, 2 Sim. & St. 1. So a musical composition is protected by 8 Ann.; Bach v. Longman, Cowp. 623; Clementi v. Goulding, 11 East, 244, 2 Camp. 25; Power v. Walker, 3 M. & S. 7; Clementi v. Walker, 2 B. & C. 861. But the representation of a drama, altered and abridged from the original, without the consent of the owner of the copy-right, will not make the manager of the theatre where it is represented liable to an action; Murray v. Elliston, 5 B. & A. 657, 1 D. & R. 299. Literary property is now protected by 54 Geo. 3, c. 156, which see, ante, 309, n. (t). Upon the construction of that statute, it has been decided, that though the words of it are, "that the author of any book, which shall hereafter be printed and published," &c.; yet that printing is not a condition precedent, and that the author, who in that case had previously sold several thousand copies in manuscript, had not thereby lost the benefit conferred by that act; White v. Geroch, 2 B. & A. 298. In the case of Mr. Hargrave's notes to Co. Litt., it was decided, that an author, whose works had been published more than 28 years before the passing of that act, was not entitled to the copy-right for life; Brooke v. Clarke, 1 B. & A. 396. See also Basket v. Cunningham, post, 370; 5 Bac. Abr. Prerogative (F) 5, pa. 594; 4 Vin. Abr. Books, and Supplement, ibid. forgery by a dead witness [WRIGHT] Lessee of CLYMER, V. LITTLER. S. C. 3 Burr. 1244. Confession of ON ejectment, a verdict for the plaintiff. Norton moved for a new trial. The plaintiff claimed a copyhold estate at Barnes in Surry, of the nature of borough English (e), under a will of [346] Mr. Clymer, *deceased, made in 1743. Defendant claimed may be admis (e) See Roe v. Aistrop, post, 1228. CLYMER V. LITTLER. will, nor can under the heir-at-law, by an instrument dated 20 September, 1745, all of one William Medlycott's writing, not sealed, nor stamped, but subscribed by Mr. Clymer, beginning_thus"Know all men by these presents," whereby in consideration sible evidence. of natural affection, he covenants and agrees (but with nobody) A void deed of that the lands in question shall go and be given to his wife for covenant is no life, and then to Elizabeth, wife of said William Medlycott (she enure as a rebeing also his heir-at-law), and her heirs for ever. It is at- vocation of a tested by William Medlycott and Elizabeth Mitchell. It ap- former will. points no executor, and makes no disposition of his personal estate; and is indorsed, in Medlycott's hand, "Mr. Clymer's "covenant and agreement." Mr. Clymer died about sixteen years ago; Medlycott took possession in right of his wife, and upon his death-bed, in 1746, declared to his sister Mrs. Victor, that the instrument of 1745 was forged by himself, and produced, from under the bed-clothes, the will of 1743, which till then was concealed by him; and sent it to the lessor of the plaintiff, who proved it in 1751. Since which, there have been three or four purchasers of the estate under Medlycott's title, which now is vested in the defendant. At the Surry assizes, upon this evidence and inspection of the two wills, Willes, C. J., directed the Jury, and they found the instrument of 1745 to be a forgery; and verdict for the plaintiff. Norton insisted, that this hearsay evidence was inadmissible, or at least inconclusive: especially as against purchasers for a valuable consideration. If so, the writing stands unimpeached; and the next question will be, to what purposes it will enure. 1st, It will enure as a will of copyhold lands (ƒ), those not being within the statute of frauds. Any writing declaratory of the testator's intention is a will of lands. 2dly, It will be sufficient to appoint the uses of the surrender to the use of Mr. Clymer's will. Any writing is sufficient for that purpose. And then the defendant is in, under that surrender.3dly, It is at least a revocation of the former will of 1743. [ *347 ] Revocations are always favoured both in law and equity, being in nature of a restitution to the heir. Revocations often happen where the party did not intend it. A fortiori, it shall happen by this instrument, which (though informal and incomplete) plainly shews the intent of the parties. Feoffment without livery, bargain and sale without inrolment, grant without attornment, are all of them ineffectual acts, yet will operate as revocations. E. Harvey, for the plaintiff.-New trials are not usually granted upon ejectments, because the party may bring another. Lessor was a minor at the death of the testator; has been at sea and in low circumstances since. This evidence, though hearsay, was admissible and conclusive; for Medlycott (if living) might have been admitted to have proved the fact at the trial; or, if he had endeavoured to establish the instrument, the present witness, Mrs. Victor, might have been examined, CLYMER บ. LITTLER. to have proved this confession against him. As to the legal question, 1st, It is no will, because there is no animus testandi. 2dly, It is not a sufficient appointment of a copyhold, because it is no will; to which only the surrender was made. 3dly, It is not a revocation. Revocations are not favoured in equity, unless they amount to a conveyance, on valuable consideration: 3 Mod. 258, Egleston and Speke; 1 Roll. Abr. 615, pl. 3, no covenant can revoke a will: This writing is at best but a covenant: 2 P. Wms. 623, Layer's Case. R. Leigh, same side. The defendant is not a purchaser without notice. Every purchase has been since the proving of the will. The instrument of 1745 is neither will nor testamentary appointment; it implies no such thing; it imports only to [ *348 ] be a covenant. *It is not a revocation, because, 1st, it is not so in express words; nor, 2dly, is it a new will; nor, 3dly, (the only remaining method of revocation) is it any disposition of Mr. Clymer's interest inconsistent with the former subsisting will. It is merely a covenant or promise. It was argued, that incomplete conveyances may revoke a will: But that must be, where there is an inception, some inchoate act, which may afterwards be made perfect. The present is a perfect act or nothing. If the instrument be of any import, still no new trial should be granted. This is no common hearsay. Dying declarations weigh as much as oaths: They will even convict of murder (g). No objection was taken to the evidence at the trial; the fact came out by cross-examination of the plaintiff's witness. 12 Ann., Lucas, 202 (h), waiver of any point by counsel is conclusive upon the party; 2 Geo. 2, Fitzg. 40, accord. Lord MANSFIELD, C. J.-It has been said, that in ejectment the Court will not readily grant a new trial (i). It is true, where a verdict has been given for the defendant; but where the plaintiff has obtained a verdict, it is a great difference to the defendant whether he has a new trial, or is forced to become plaintiff on a new ejectment. Ejectments are substituted in the place of real actions, in which the title appeared upon the pleadings, and gave no room for surprise. We should therefore rather lean to new trials on behalf of defendants, in the case of ejectments, especially on the footing of surprise. Another good rule for granting or refusing new trials, is, that, ́ (g) R. v. Reason & Tranter, 1 Stra. 499, 6 Hargr. St. Tr. 202, 205. Woodcock's Ca., 1 Leach, C. C. 500; Bambridge's Ca., 9 Hargr. St. Tr. 161, acc. But it must be proved that the deceased was in articulo mortis; which is a question for the Judge and not for the jury; John's Ca., 1 East, P. C. 357; Welborn's Ca., Id. 359. So the dying declarations of an accomplice are evidence, Tinkler's Ca., 1 East, P. C. 354, 356; but not of a criminal at the time of execution, for, being a felon convict, he is incompetent; Drummond's Ca., 1 Leach, C. C. 337, 1 East, P. C. 353, n. Dying declarations are only admissible, where the death is the subject of the charge, and the circumstances of the death the subject of the declaration; R. v. Mead, 2 B. & C. 605, 4 D. & R. 120. (h) Or 10 Mod. Reg. v. Helston Corporation. (i) See Smith dem. Dormer v. Parkhurst, 2 Stra. 1105, and Goodtitle dem. Alexander v. Clayton, 4 Burr. 2224: in the latter case a new trial was allowed; Doe dem. Foster v. Williams, 2 Cowp. 621. upon the whole, substantial justice has not been, or has been, done to the parties. CLYMER v. LITTLER. In the present case, there is no objection to the will of 1743, but from the instrument of 1745. I will consider it, 1, In point of law; 2, In point of fact. 1. There is no colour to consider it as a will. The testator knew how to make one but two years before. In form it has nothing testamentary. Had [ *349 ] there been a single circumstance (even a mention of funeral charges) to have shewn it intended as a will, I agree that there are no formal words necessary to make it testamentary. It is now in the nature of a deed, though not sealed. Medlycott intended it as a covenant; which, if well drawn, he knew to be irrevocable. If no will, it cannot operate as an appointment of uses, the estate being surrendered to the use of a will.Revocations arise generally from the intent of the testator; therefore where he intends a complete conveyance, and dies before it is perfected, as feoffinent sans livery, &c. it is a good revocation; he having demonstrated his intent to alter his former disposition. Other revocations arise from artificial reasoning of law; as by suffering a recovery, feoffment to one's own use, &c. wherein it has been held, that parting with the estate for these purposes amounts to a revocation. It might perhaps as reasonably have been otherwise determined; but so it has been, and so it must remain. However, covenants have never been allowed to be revocations; unless where the covenantee has a right to a specific performance. This is merely a covenant without such a right, and therefore can be no revocation. 2. As to the fact, the admissibility or competence of evidence must result from the particular circumstances of the case. No rule can be general. Here the testator died in 1746. Both wills [were] in the custody of Medlycott: The other subscribing witness [is] dead: His wife [is] to be benefited under it. He, on his death-bed, sends the lessor of the plaintiff his title; which is inconsistent with that under which the defendant claims. Under all these circumstances, I think it admissible evidence. No general rule can be drawn from it. No objection was made to its production; it came out, it seems, on the cross-examination of the defendant's counsel. Unless therefore manifest injustice had been done on the whole case, there is no ground for a new trial. Here appears to be good reason for the verdict (k). DENNISON, FOSTER, WILMOT, Js., accord. (k) On the authority of this case, Heath, J., admitted the declaration of a person, who, having set his name as subscribing witness to a bond, in his dying moments begged pardon of Heaven for having been concerned in forging it, as evidence of the forgery; cited by Lord Ellenborough, 6 East, 195. But, in a late case, the dying declarations of A. were held not to be receivable in proof of a pedigree: there Bayley, J., said; "the case of the sub Rule was discharged. scribing witness seems to be founded on CLYMER v. LITTLER. revocations of wills devising real property, the heir at law; in Ellis v. Smith, 1 Ves. Jun. 17; to a papist, Roper v. Radcliffe, 1 Bro. P. C. 450, or 5 Bro. P. C. 360 (Tomlin's ed.), 10 Mod. 233; (as to papist's disabilities, see Harg. Co. Lit. 391 a, n. [346]); to the poor of the parish, Frenche's Ca., 1 Roll. Abr. Devise, (0) pl. 4, 8 Vin. Abr. ibid.; or to a corporation, 8 Vin. Abr. ibid. Whether a power of appointment ill executed be a revocation, seems not quite decided; Shove v. Pincke, 5 T. R. 124; Heli v. Bond, 1 Ab. Eq. Ca. 342: see 2 Roberts on Wills, 20, (3rd ed.). As to revocations generally, see Ex parte Ilchester, 7 Ves. Jun. 374; Hick v. Mors, Amb. 216, 2 Ld. Ken. Ca. in Chanc. 117; Abney v. Miller, 2 Atk. 593; Sparrow v. Hardcastle, 3 Atk. 803, 7 T. R. 416, n. (a), 1 Ld. Ken. 67; Harmood v. Oglander, 6 Ves. Jun. 199; and Roe v. Griffiths, post, 605; Goodright v. Harwood, post, 937; Bibb v. Thomas, post, 1043, and Roe v. Heyhoe, post, 1114. [ 350 ] by himself or deputy, may billet soldiers under the mutiny act. MEDHURST v. WAITE. S. C. 3 Burr. 1259. High-constable, TRESPASS for billeting soldiers by a deputy high-constable. Verdict for defendant. Motion for new trial. Held by the Court, that a high-constable is an officer within the mutiny act, for billeting of soldiers; and that he may occasionally appoint deputies, whose acts, in their principal's absence, will be good; and therefore new trial denied. Webb, for the defendant, cited Phelps and Winchcomb, Moor, 845; 3 Bulst. 77, 1 Ro. Rep. 274, 1 Ro. Abr. 591; Sir Walter Vane's Case, 2 Keb. 309, 1 Sid. 355, but best in 1 Lev. 233; also March. 30; 1 Hale, P. C. 2 Hale, P. C. 88. If four are indicted for a riot, two die before trial, and two are found guilty, Court will intend that evi dence was given THE KING . Scott. NORTON and Stow shewed for cause, that two of the defendants were not acquitted, but were dead before the trial. And as, after a verdict, the Court will suppose every thing in order to support it; it therefore comes to the same, as if the indictment had been laid, "together with other persons unknown;" in which case it has been held, (K. against Moor and against them all. Kinnersley, Stra. 193), that if two only are found guilty, yet the verdict implies, that a riot was committed by the assistance of some of the unknown persons. So here, as two of the defendants were dead, and the verdict finds two others guilty of a riot, the Court will intend, that the jury had evidence that one at least of the dead men was concerned in it. And of that opinion was the Court, and discharged the rule. |