Abbildungen der Seite
PDF

mitte

the colonies, had decided, naturally enough, to abide at home. Mr. Heald, for the plaintiff, first contended, that if works of this kind were to be furnished to the public, authors must avail themselves of the labours of their redecessors. He would ask his earned friends on the other side in what way they would otherwise wish a history of the Cape of Good Hope? †. the plaintiff, so far from being a pirate of the works of others, had in his preface fairly stated, that he had freely availed himself of the many interesting pictures of the Cape colony which modern travels sup& : that to the superior work of r. Barrow in particular, he had been much indebted, nor had he omitted to consult the observations of Vaillant, Lichtenstein and Campbell; or the Journal of the Rev. Mr. Latrobe's Visit to South Africa in 1815 and 1816. Had the plaintiff therefore pirated from preceding authors in the way the defendant had from him, he would haveplaced those authorsin a situation to make a similar aplication to the Court; but when e fairly told the world that the “superior" work of Mr. Barrow, &c. was to be had, he did not conduct himself like a pirate upon the o of others, and he subthat the plaintiff having bestowed his care and industry in selecting what was important to emigrants from various voluminous publications, he thereby became the author of his own work, from which no man had a right to copy; and as to the 2nd point, it was a matter of fact, and it only remained to show that the defendant’s work, far from being

compiled by himself from the works of others, or containing extracts from the plaintiff's work “met with" by accident, and occurring only “here and there,” as defendant had alleged, was a verbatim copy of numerous pages of the plaintiff's work on the subject of the Cape. He offered to show 10 pages, together of plaintiff's o: which #. been copied within 3 lines. That the identity which he was prepared to prove between these works reminded him of an occurrence in the early part of his professional life. In an action for pirating a chart, it was shown that a rock had been inserted in the plaintiff's map, which, in point of fact, existed no where else, but which had also been copied in the defendant's. A rock, said his lordship's predecessor, “upon which their case will, I fear, be wrecked.” In the present instance he would show that defendant, in a table said to be copied by him from Mr. Barrow, had carefully perpetuated such remarkable typographical errors, as identified it with the

laintiff’s work, and with no other.

e then in a humorous strain observed, that Mr. Barrow had found in the district of Stellenbosch, 451,695 sheep; but on the plaintiff's arrival at the Cape, an immense slaughter had taken place amongst them, and he found but 51,695, making a difference of no less than 400,000; this he of course duly reported in his book, and it was remarkable, that the defendant on his arrival found not only that no further mortality had taken place, but that to a head there was the exact number of sheep the Poli

ti

tiff had stated. Other peculiarities of a similar description were ointed out. In particular the earned counsel observed, that Mr. Barrow had described the Cape under the four principal districts into which it was in his time divided. But the plaintiff had introduced a totally different political division, i. e. into seven districts, under which it was now governed; and in the very order and terms in which the plaintiff had introduced them, the defendant had copied them into his book. Now, though he must admit that the defendant, in writing a history of the Cape, could not do otherwise than insert the seven existing divisions, was it to be imagined that two gentlemen sitting down, even to compilations, upon which each fairly bestowed his time and labour, would arrive at exactly the same mode of describing such divisions in seven distinct instances, and express themselves in exactly the same words 2 Mr. Raithby followed on the same side, and was proceeding to insist on a bonā fide compilation or abridgment being as much intitled to the protection of the law as a o in other senses original, when his lordship expressing a full concurrence in this argument, the learned gentleman did not press it. The Attorney Generalattempted to sustain his former line of observation, by beginning to read from Mr. Barrow and to point out errors of the plaintiff which defendant had corrected, when The Lord Chancellor terminated the discussion, by observing this case to be somewhat dif

ferent from the application of the original author of a work for his protection. In the absolute sense of the terms, neither of these were original works; both professed to be compilations #. other and larger publications. “But if a man profess to give the world a compilation,” said his lordship, “let him sit down fairly and compile. He must not copy even from a previous compilation ; for his work would then be a piracy of that compilation. In this case, the defendant has not merely copied some facts, but many facts with the errors; and not only the facts, but the reasoning of the plaintiff. . The injunction cannot, under these circumstances, be dissolved. The plaintiff is perfectly correct in coming here for the protection of his labours, which, both in law and equity, as far as I can see, must be given him. .

BoARD OF Excise, DEC. 29.

The firm of Messrs. Thompson and Coates, wine and spirit-merchants of Holborn-hill, were charged under the 54th of Geo. III. chap. 8, commonly called the Cape Act, with having mixed a quantity of Port wine with a quantity of Cape wine, against the statute. There is a penalty of 300l. attached to the offence if it is with a fraudulent intention, but this being admitted not to be the case, the penalty was not proceeded for.

This case excited an extraordinary degree of interest amongst the wine trade in general, as the question at issue was as to the - legality legality of a common practice of mixing wines to improve their flavour. The court was crowded by persons in the trade, who were anxious to hear the decision. Mr. Fisher, a surveyor in the Excise, proved, that in taking the stock of Messrs. Thompson and Coates, on the 19th of October, he found an excess of eight gallons in a pipe of Cape wine of 98 follo, which was not accounted or by the permits. On asking Mr. Coates to account for the increase, he stated it to have been caused by the addition of eight gallons ; Port wine, in order to improve the Cape wine. The whole of the pipe, 100 gallons, were consequently seized. The stocking officer corroborated this Statement. Mr. Coates appeared in behalf of the firm, and said he stood there to answer the charge made against the firm—the first in their lives. . It was a question in which their character, which had hitherto stood pre-eminent, was concerned; and as it was but natural to suppose that their prosperity would procure them many enemies, the account of the seizure had now the full progress of a lie throughout the trade, and from the mere seizure of a pipe of wine, it had increased to the discovery of a contraband connexion, and an immense seizure, to which a penalty of 20,000l. was attached, which had afforded consolation to those envious of their prosperity. He should first contend that the officer acted illegally in seizing more than the excess of eight gallons; secondly, that to mix Port wine with Cape red wine was not contrary either to the *

letter or the intention of the act of parliament; and, thirdly, that they had done nothing inconsistent with the revenue, which was neither in fact nor intention injured. On the contrary, he should show that the revenue was in reality benefitted. There were only two laws in force against the mixture of wines, namely, the 12th of Charles II. c. 25, and the 54th Geo. III. as to the seizure of the whole of the pipe. He referred to the 27th clause of the last-mentioned act, to prove that the officer had no right to seize more than eight gallons, the words of the act being, “that the quantity seized should be equal to the quantity found in excess;” and he contended, that there were not the slightest grounds for supposing that the act authorized the whole to be seized. He had, when asked by the officer to account for the excess, openly and candidly given him the truth, which if he had had any improper motives, he would have withheld, and which it would have been impossible to have discovered, had he not told it. He complained that the admission, which had been made in honour and good spirit to the officer, should be converted to their disadvantage. To prove that the act for which they were charged was not contrary to the letter and spirit of the act of parliament, he contended that at the time the act was made for the commutation of the duties on Cape wine from 7s. 6d. per gallon to 2s. 6d. the legislature had in contemplation the frauds which might be committed, by mixing the Cape wine, which paid the duty of 2s. 6d. per

gallon, gallon, with those which retained the standard duty of 7s.6d. and thereby defrauding the revenue. The legislature had never in contemplation that any one would mix that which paid the greater duty with that which paid the less, as in the present instance, or it would have been mentioned. The act merely said, that “if any person should mix or mingle Cape wine with Port or other foreign wines.” Now had the converse been intended, it would have been stated, as it was in the act of Charles II., for those who made acts of parliament were never sparing of words. The illegality was in mixing Cape wine with Port, or any other, which was not the case in the present instance, for the Port wine was mixed with the Cape. This was not a mere play upon terms, but a solid objection; as, for instance, in a domestic recipe it was said, “Mix a tea-spoonful of sulphuric acid with a pint of water,” but it would be absurd to say, “Mix a pint of water with a tea-spoonful of acid;” or, to say “Mix a tea-spoonful of milk with a cup of tea,” was proper, but to say, “Mix or mingle a cup of tea with a spoonful of milk," was manifestly contrary to common sense. As to the practice not being injurious to the revenue, but on the contrary, he would not waste the time of the Court, as it was selfevident. He might have been mistaken in the construction of the acts. If he had erred, it was not from intention. If the Court should pronounce the practice illegal, he for one was ready to abandon it. It was the ii. practice of the most respectable guments of the defendant to rove that the practice was not injurious to the revenue. It might appear so at first sight, but would be found to be injurious in the long run: if wine merchants were permitted to mix foreign wines with the Cape wine, which paid less duty, they might improve it so much as to increase its consumption as a substitute for Port, and thereby injure the Itevenue, The Court, in giving judgment, said there was no imputation whatever upon the character of the firm, of which the officers of the Excise had always made an honourable report; and those who had presumed falsely to impeach its respectability deserved punishment. The information did not charge them with any thing criminal or corrupt, and the question merely turned on a point of law. On this head the Court were clearly of opinion that there had been a mixing within the meaning of the Act, and adjudged the whole of the wine so mixed to be forfeited.

[ocr errors]

wine-merchants in the trade to mix Port wine with Cape, in order to improve the barren flavour of the Cape, and to make it keep longer. The question as to the legality of the practice was therefore of the highest importance to the trade, with whom, if he were guilty, he shared the guilt in common. The Court asked Mr. Fisher, the surveyor, whether he believed it to be a common practice; to which he replied in the affirmative, and said that one had been convicted, and another trial was pending for the same offence. Mr. Coates continued, and said he felt, as every other practical man felt, the utter impossibility of adhering to the letter of the Excise-laws, which the legislature seemed to have contemplated, in giving such extensive powers of mitigation to the Court. Mr. Mayo said the legislature had only contemplated a departure from the Excise-laws, by enacting excessive penalties. The Court said, Mr. Coates ought not to have made such a declaration there; he might if he pleased, with others, have reserved it for his closet. The Court could only be governed by the letter of the Excise-laws. Mr. Coates asked the surveyor whether there was not a corres

[blocks in formation]

cLARE Assizes.

The King v. W. Borough, Esq. and J. Magrath.--This was an ex-officio information filed by the Attorney-general against the defendants for conspiring with others unknown, to transport a woman of the name of Judith Lynch to America.

The Jury, after a short deliberation, found the defendants Guilty upon both counts in the information.

This matter appears to have

been brought forward by government in consequence of the following anonymous letter to the Lord-Lieutenant:— “My Lord;—To leave you ignorant of an outrage perpetrated within your government, unparalleled in the present state of society, and perhaps seldom surpassed in the most oppressive feudal era, would be to neglect a duty to my country, and to the victim of barbarous cruelty—an outrage, too, premeditated, planned and carried into effect by one of his Majesty's justices of the peace, the supposed guardian of his Majesty's subjects and the preserver of the laws, who, though destitute of humanity, ought, from a recollection of the trust reposed in him, to have risked his life in protecting her whom he made the object of his unlawful and more inhuman machinations. I will now, my lord, state as clearly as I can this occurrence, and should I deviate in the least from what actually took place, it is because I reside remote from the scene of tyranny and leave to your lordship the close investigation of the matter, and not from a wish to add to a crime already black enough. “About the middle of August last, Wm. Borough, esq., a magistrate of the county of Clare, and a half-pay lieutenant of his Majesty's royal navy, assisted by some ruffians, came to a poor and indigent man of the name of Lynch, living in a miserable hut and far distant from the house of this justice; this unoffending and unsuspecting man was standing near his hut, his daughter not far off, when he was audiesel, T.

« ZurückWeiter »