depended altogether upon what he called "Christian Science." The defendant contends that the so-called "Christian Science" is a delusion; that its princiciples and methods are absurd; that its professors are charlatans; that no patient can possibly be benefited by their treatment. We think this all immaterial. We are not required here to investigate "Christian Science." The defendant's intestate chose that treatment and received it, and promised to pay for it. There is nothing unlawful or immoral in such a contract. Its wisdom or folly is for the parties, not the court, to determine. Judgment for plaintiff for $30, with interest from date of the writ.

STATE v. PIERCE.

(Supreme Judicial Court of Maine. August 4, 1888.) LIQUORS-NUISANCE-INDICTMENT-AGAINST

OWNER Of Building,

INTOXICATING An indictment under Rev. St. Me. c. 17, § 4, against the owner of a building for knowingly letting it to be used as a nuisance, is sufficient where it charges that the defendant "a certain room knowingly let to and permitted to be used by one Charles O'Connell, for the illegal sale and keeping for sale of intoxicating liquors. "2 Exceptions from supreme judicial court, Waldo county.

Indictment for liquor nuisance. Defendant filed a demurrer, which was overruled by the court, and the defendant then alleged exceptions.

Orville D. Baker, Atty Gen., and R. F. Dunton, Co. Atty., for the State. Wm. H. Fogler, for defendant.

*

PER CURIAM. The respondent is indicted, not as an accessory before or after the fact, but for a substantive offense under Rev. St. c. 17, § 4. To the indictment there is a demurrer. The principal objection to the indictment is that "there is no allegation th it a nuisance was kept and maintained." The law provides that places used for the "illegal sale or keeping of intoxicating liquors * * are common nuisances. The allegation is that the defendant "a certain room knowingly let to and permitted to be used by one Charles O'Connell, for the illegal sale and keeping for sale of intoxicating liquors. If the room was let to O'Connell, he must have hired it; if it was permitted to be used, he must have used it. "Permitted it to be used" is only another form of saying it was so used with his consent; so the word "knowingly" must be applied to "permitted" as well as to the words "let to." Thus it is quite apparent that all the elements necessary to the statutory offense are sufficiently set out in the indictment. Com. v. Goulding, 135 Mass. 552. Exceptions overruled. Judginent for the state.

CHASE v. MARTIN et al.

(Supreme Judicial Court of Maine. August 4, 1888.) BOUNDARIES-DEEDS-CONSTRUCTION-PROVINCE OF COURT AND JURY.

In an action of trespass, where the question in dispute is a boundary line, and there is no testimony locating the monuments referred to in the deeds, it is not error for the presiding justice to say to the jury that "by the record title the plaintiff has not definitely fixed the northern boundary of her land, the line in dispute."

*

Exceptions from supreme judicial court, Piscataquis county.

1Reported by Leslie C. Cornish, Esq., of the Augusta bar.

Respecting the form and sufficiency of indictments and informations to charge the various offenses, and as to how near they must conform to the wording of the statute, see State v. Hupp, (W. Va.) 6 S. E. Rep. 919, and note; State v. Carville, (Me.) 14 Atl. Rep. 942, and note; State v. Davis, ante, 41; State v. Schafer, (Iowa,) 39 N. W. Rep. 89, and note.

Trespass quare clausum. The parties were adjoining owners, and each claimed to own the locus. The verdict was in favor of the plaintiff, and the defendants alleged exceptions to the instruction stated in the opinion. Geo. W. Howe, for defendants.

*

PER CURIAM. It was the duty of the presiding justice to construe the several deeds put in evidence, in matters of description as well as in other respects. In doing this, he found the starting point upon which the location of the line in question depended described as "a stake and stone standing on the west side of the road leading from said Davis' shop to Stephen Freeman's, and on which said Davis has built a house;" without other description showing more definitely the location of the monument. The justice was therefore justified in saying that "by the record title the plaintiff has not definitely fixed the northern boundary of her land, * * the line in dispute." As a question of fact the same result follows. Neither party, so far as the report of the case shows, offered any testimony tending to show the precise location of that or any other like monument referred to in any of the deeds, upon the face of the earth. What was therefore said by the justice upon this subject was not, as is contended, an expression of an opinion upon the force of test mony in the case, which is prohibited, but rather a statement of what is not in the case, which is not only allowable, but, on proper occasions, a duty. Pillsbury v. Sweet, 14 Atl. Rep. 742, (a Penobscot county case.) There appears from the report of the case no evidence by which the line in question can be determined, except that which arises from its actual location upon the face of the earth by the parties, as shown by their acts and occupation. Upon this point there was considerable testimony upon each side, and the instructions were sufficiently favorable to the defendants. Exceptions overruled.

(16 R. I. 266)

CROSS et al. v. BARBER et ux.

(Supreme Court of Rhode Island. July 7, 1888.)

1. TROVER-DEMAND-COMMENCEMENT OF ACTION.

In trover, when a demand is essential to the right of recovery, the service of the writ, and not its issuance, is considered the commencement of the suit, and testimony tending to prove the refusal of the defendant to deliver the property in question, upon such demand after the issue but before the service of the writ, is admissible.

2. SAME.

When there is no present immediate intention that the writ shall be served, though the writ be in the possession of the officer, but only an intention that serv ice of it shall be made at some future time, or upon the happening of some future event, the suit is not commenced till such time arives or such event happens. On petition for a new trial.

Albert B. Crafts, for plaintiffs. Thomas H. Peabody and Charles Perrin, for defendants.

MATTESON, J. This is an action of trover for the conversion of certain goods and chattels, to which the plaintiffs claim title as administrators, with the will annexed, on the estate of Henry M. Barber, late of Westerly, deceased. At the trial the plaintiff produced as a witness Edward G. Cundall, who testified that on February 26, 1887, he was sheriff of Washington county; that on that date, before the service of the writ in this suit, but having the writ with him, he demanded from the defendants in behalf of the plaintiffs all of the property named in the writ, except the bay horse. The plaintiffs offered to prove by this witness that the defendants, at the time of the demand, and before service of this writ, refused to deliver the property in compliance with the demand, but the court excluded the testimony, and the plaintiffs excepted. They now petition for a new trial on the ground that the exclusion of the testimony was erroneous.

That the plaintiff must have a right of action at the commencement of the suit, to entitle him to recover, is a proposition too well established to be questioned. Assuming, therefore, for the purpose of the present inquiry, that there was no other evidence of a conversion, so that proof of a demand and refusal was essential to make out a conversion, the question which arises is, were the demand testified to by the witness, and the refusal to comply with it, which the plaintiff offered to prove by his testimony, prior to the commencement of the suit? What is the commencement of a suit is a matter about which courts have differed. In Connecticut it is held that it is the service of the writ which is the commencement of the suit. Clark v. Helms, 1

Root, 487; Jencks v. Phelps, 4 Conn. 149; Spalding v. Butts, 6 Conn. 28; Gates v. Bushnell, 9 Conn. 530. And the word "service," as applied to the commencement of a suit, is defined as "that notice given to the defendant which makes him a party to the proceeding, and makes it incumbent on him to appear and answer to the case, or run the risk of having a valid judgment rendered against him." Sanford v. Dick, 17 Conn. 213, 216. In Vermont, for the purpose of preventing the barring of a claim by the statute of limitations, the rule is that the taking out of the writ with the intent to have it served and pursued, is the commencement of the suit, if the writ be served and returned. Allen v. Mann, 1 D. Chip. 94; Day v. Lamb, 7 Vt. 426. But for other purposes, when the question is whether the cause of action has accrued, as in trover, when a demand is necessary as evidence of a conversion, or in assumpsit, when, from the nature of the contract, a demand is essential to the right of recovery, -the service of the writ is considered the commencement of the suit. McDaniels v. Reed, 17 Vt. 674, 679. In this state, and in this country generally, it has been held that the issuing of the writ is the commencement of the suit. Hail v. Spencer, 1 R. I. 17; Carpenter v. Butterfield, 3 Johns. Cas. 145; Lowry v. Lawrence, 1 Caines, 69; Boyce v. Morgan, 3 Caines, 133; Bird v. Caritat, 2 Johns. 342; Cheetham v. Lewis, 3 Johns. 42; Fowler v. Sharp, 15 Johns. 323; Burdick v. Green, 18 Johns. 14; Ross v. Luther, 4 Cow. 158; Hogan v. Cuyler, 8 Cow. 203; Parker v. Colcord, 2 N. H. 36; Society v. Whitcomb, Id. 227; Ford v. Phillips, 1 Pick. 202; Swift v. Crocker, 21 Pick. 241; Thompson v. Bell, 6 T. B. Mon. 559; Chiles v. Jones, 7 Dana, 545; Fowler v. Byrd, 1 Hemp. 213; Whitaker v. Turnbull, 18 N. J. Law, 172; Feazle v. Simpson, 1 Scam. 30; Cox v. Cooper, 3 Ala. 256. But when it is said that the issuing of the writ is the commencement of the suit, it is not intended that the mere filling up of the process, or the mere sending of it to an officer, or placing of it in his hands, is such commencement. These acts, to constitute them the commencement of the suit, must be accompanied with a bona fide, absolute, and unequivocal intention to have the writ served. Burdick v. Green, 18 Johns. 14; Visscher v. Gansevoort, Id. 496; Ross v. Luther, 4 Cow. 158; Society v. Whitcomb, 2 N. H. 227; Johnson v. Farwell, 7 Me. 370; Whitaker v. Turnbull, 18 N. J. Law, 172. In Society v. Whitcomb, 2 N. H. 227, 230, the court uses this language: "But by the procurement of a blank form from the clerk or an attorney an action is not brought,' because such form is not a writ, though by the procurement of such a form, suitably filled up and intended to be served, the writ' or 'action' may well be called 'commenced,' 'sued out.' It is the intention and act combined which in fact constitute the institution of the suit." Burdick v. Green, 18 Johns. 14, was a suit upon a note in which the defendant pleaded the statute of limitations. The note was dated June 21, 1810, and was payable to the plaintiff, or order, on the first day of August following. The plaintiff had indorsed the note to one Ketcham, who had reindorsed it to the plaintiff. The reindorsement to the plaintiff bore date July 31, 1816, and was sent by mail from New York to Granville. There was no evidence when it was actually received by the plaintiff or his attorney, but it could not have reached Granville until after July 31, 1816. While the note

*

*

*

was the property of Ketcham, and while it was uncertain when, if ever, he would reindorse the note to the plaintiff, the attorney made out the writ, and delivered it to the plaintiff with the direction not to place it in the hands of the sheriff until July 31, 1816. When it was placed in the sheriff's hands, did not appear. The court thought it fairly inferable from the evidence that if the note had not been obtained from Ketcham, the writ would have been suppressed by the plaintiff, and would never have been delivered to the sheriff, and hence that there was no positive intention to institute the suit until the note was actually received; and they held that, as the reindorsement was an event uncertain as to the time the attorney delivered the writ to his client, to be used or not, according to that contingency, and the plaintiff could not make his election whether to consider the suit commenced or not until the contingency was known to him, which was not until after the six years had elapsed, the defense under the statute of limitations was complete. Since, then, this intention to have the writ served is an essential element to the commencement of a suit, it follows that where there is no present immediate intention that the writ shall be served, though the writ be in the possession of the officer, but only an intention that service of it shall be made at some future time, or upon the happening of some future event, the suit is not commenced till such time arrives or such event happens. Accordingly, in Badger v. Phinney, 15 Mass. 359, in which a writ of replevin was delivered to an officer, and he was directed, before serving it, to demand the goods from the defendant, and, these not being delivered, he proceeded to replevy them, it was held that the objection that the writ was delivered to the officer before a demand was made for the goods could not avail. “It is a sufficient answer," says the court, "that if the defendant had delivered the goods upon demand, there would have been no necessity to serve the writ. It may be considered as purchased at any moment of the day of its date which will most accord with the truth and justice of the case. And it is evident that it was not to be considered as of any validity until after the demand and refusal was had." So, also, in Seaver v. Lincoln, 21 Pick. 267, the objection was taken that the writ was actually filled up and delivered to an officer before the notice was given to the indorser, and therefore that at the time of the commencement of the action the plaintiff's right of action had not accrued. The objection was overruled. The court remarks: “It appears by the proof that the writ was filled up provisionally, and given to the officer with instructions not to serve it until after giving notice to the indorser, and in case he should pay the note, then not to make service of it at all. When a suit is made provisionally, and delivered to an officer with instructions that it is not to be used until after a certain time, or the happening of a certain event, the action cannot be considered as commenced until the arrival of the time or the happening of the event." And see, also, Grimes v. Briggs, 110 Mass. 446; Federhen v. Smith, 3 Allen, 119; Swift v. Crocker, 21 Pick. 241. The case at bar would be identical in principle with Badger v. Phinney, 15 Mass. 359, Seaver v. Lincoln, 21 Pick. 267, and Grimes v. Briggs, 110 Mass. 446, so far as the question we have considered is concerned, if it appeared from the statement of the evidence that when the writ was delivered to the officer he was instructed not to serve it until he had first demanded the goods from the defendants, and not to make service of it unless they refused to surrender the goods upon such demand. Inasmuch, however, as it does appear that the officer did make such a demand in behalf of the plaintiffs, and before serving the writ, we think we may fairly infer that the demand was so made in pursuance of instructions to that effect from the plaintiffs or their attorney. We are of the opinion, therefore, that such demand and refusal were prior to the commencement of the suit; that the court erred in excluding the testimony; and that a new trial ought to be granted. Petition granted.

(16 R. I. 271)

In re RIDER et al.

(Supreme Court of Rhode Island. July 7, 1888.)

COPYRIGHT-RIGHTS OF AUTHOR-AGREEMENT NOT TO REPRINT.

A publisher of a copyrighted book solicited and received subscriptions upon representations that the edition was a limited one, and that the same would not be reprinted. Held, that neither the publisher, nor his assignee for the benefit of creditors, could reprint the book, or sell the copyright, so as to authorize the purchaser to do so.

Case stated for an opinion of the court under Pub. St. R. I. c. 192, § 23. Francis W. Miner, for Rider. Augustus S. Miller, pro se ipso.

STINESS, J. The case stated shows that between January, 1878, and September, 1887, the petitioner Rider published a series of 20 pamphlets, which he called "Rhode Island Historical Tracts." These tracts consisted of short historical treatises by various writers, and related, in a general way, to Rhode Island history. Subscriptions were solicited and taken by said Rider, with printed and verbal statements that the edition of each tract to be published was limited to 250 copies, and that the same would not be reprinted, whereby the value of said tracts was greatly enhanced. All said tracts, except No. 16, were copyrighted. September 27, 1887, Rider made an assignment of all his property to Augustus S. Miller, for the benefit of creditors. At that time he held the copyrights as above stated. Rider and Miller now concur in a case stated, according to our statute, in asking the court the following questions: (1) What right, if any, had said Rider in and to said copyright at the time of the making of said assignment? (2) Was there anything in said copyrights of value to pass to said assignee? (3) Did the property of said Rider in and to said copyrights pass to the assignee under the general assignment? (4) Has the assignee the right to sell said copyrights, if in his possession, so as to authorize the purchaser thereof to publish said tracts? A copyright gives to the owner the sole right to print, publish, and vend copies of a written composition. It is the grant of an exclusive privilege by the government, for the purpose of protecting and encouraging, like a patent, the product of mental effort. It secures to the author the fruit of his toil, or enables him to dispose of it, with his incidental rights, to a publisher, who thus becomes the proprietor, so called in the statute, (Rev. St. U. S. 1878, § 4952, p. 957,) and as such entitled to protection in the venture of publication. It often, therefore, and perhaps most frequently, happens that the copyright is in the name of the proprietor. He holds it as the representative of property, the badge of title and of beneficial right. He may enforce his rights against all wrong-doers, but as to himself and the author, or others who may have interests, he holds this species of property just as he would hold any other property, subject to contract obligations. This principle is recognized in the case of Pulte v. Derby, 5 McLean, 328. The complainant, an author, entered into a written contract with the defendants to publish an edition of his work, and a second edition, if called for, paying him a certain price per copy. A second edition larger than the first, was issued, and a difference arose about the construction of the contract. The bill prayed for an injunction against further publication. The complainant proposed to publish the work himself, and the defendants, as owners of the copyright, filed a cross-bill to enjoin him from so doing. The court sustained the defendant's claim upon the contract, and held that the legal title to the copyright was in the defendant, but only for the purpose of the contract; that it was not assignable; and that the complainant had no right to publish the work in disregard of the contract. The rights of the parties, therefore, standing not on the copyright law, but on a simple contract obligation, it was held that a federal court had no jurisdiction. If the doctrine recognized and applied in this case, that property in a copyright is subject to con