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 [ 70. The Acts mentioned in the Second Schedule to this Act are hereby repealed to the extent specified in the third column of that Schedule:

Provided that, without prejudice to the provisions of section thirty-eight of the Interpretation Act, 1889:
 * (a) Nothing in this repeal shall affect any vesting order or appointment made or other thing done under any enactment so repealed, and any order or appointment so made may be revoked or varied in like manner as if it had been made under this Act;
 * (b) References in any document to any enactment repealed by this Act shall be construed as references to this Act or to the corresponding enactment in this Act.

71.—(1) This Act may be cited as the Trustee Act, 1925.

(2) This Act shall come into operation on the first day of January, nineteen hundred and twenty-six.

(3) This Act, except where otherwise expressly provided, extends to England and Wales only.

(4) The provisions of this Act bind the Crown.

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 [15 SCHEDULES.

FIRST SCHEDULE.

(1) The investments mentioned in paragraphs (d), (i) and (k) of section one of the Trustee Act, 1893, and in the corresponding provisions of any enactment replaced by that Act, shall be deemed always to have included investments mentioned in paragraphs (d), (i) and (k) of subsection (1) of section one of this Act.

(2) In subsection (3) of section twelve of the Trustee Act, 1893, and in the enactment which it replaced, the expression “customary land” shall be deemed never to have included land in regard to which a tenant had power to dispose of the legal estate by deed, and the expression “land conveyed by way of mortgage” shall be deemed never to have included land conveyed in trust for securing debentures or debenture stock.

(3) Section forty-seven of the Trustee Act, 1893, shall be deemed always to have had effect as if after the words “Settled Land Acts, 1882 to 1890,” there had been inserted the words “and trustees for the purposes of section forty-two of the Conveyancing Act, 1881.”

(4) Subsection (1) of section eight of the Conveyancing Act, 1911, shall be deemed always to have had effect as if at the end thereof there had been inserted the words “or other the trustees or trustee for the time being of the trust.”

53

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


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 [ SECOND SCHEDULE.

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 [15

PRINTED IN ENGLAND BY J A DOLE Controller and Chief Executive of Her Majesty’s Stationery Office and Queen’s Printer of Acts of Parliament. Reprinted in the Standard Parliamentary Page Size.


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 LONDON: PUBLISHED BY HER MAJESTY’S STATIONERY OFFICE £5.50 net ISBN 0 10 850334 8


text: Trustee Act 1925 (United Kingdom)

title: Trustee Act 1925 (United Kingdom)


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170 a sublime and generous spirit, richly endowed and developed and ripened to a rare degree of nobleness by life's severe school. It is unquestionably the best prose work from the seventeenth century.

Though the scientific efforts of the period of learning paid but little attention to the national element, still the latter was not wholly disregarded. On the contrary, there flowed through this entire period a national and to some extent a popular current; which, though it was not strong enough to give the times a direction different from that after which the period is named, still it is of great interest as a continuation or result of the great popular movement created by the Reformation, and on account of the influence it may be said to have had in general on the relation between the literature and the people.

Among the men who rendered special service to this cause, we must not forget to mention (1542-1616), a son of a merchant in Veile (Vedel) from which town he received his surname. In his earlier years he travelled for a few years abroad as Tyge Brahe's tutor, became magister in Wittenberg, and after his return to Denmark, court preacher to Frederik II. From his earliest youth he had applied himself with diligence to the study of national history, and receiving encouragement from many friends, he undertook the important task of translating Saxo Grammaticus, and his version of this celebrated work was published in 1575. In this manner this book at length became accessible to the whole people. It was exquisitely translated into a remarkably pure and noble language, a fact which is of all the more credit to Vedel, when we consider that he was, properly speaking, the first to break the ground for the historical style. Vedel's translation of Saxo, on account of its comparatively excellent Danish, occupies in fact a foremost rank in the literature of its time, and it will forever remain


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WHICH DEAL WITH THE STORY OF THE VOLSUNGS.

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PREPACE tingen, and others, have distinguished them- selves in the same field of research.

I ardently hope that the example of, German industry may operate as an incen- tive to our exertions, and should it prove so—without meaning to question the extent or value of their researches in ophthalmo- logy—I may be permitted to express my belief, that they can lay us under no deeper obligation.

Nations, like individuals, are distin- guished by a peculiar character of mind, to whatever causes attributable, evinced in their respective modes of observing, re- flecting and acting; and the sentiment of Pheedrus is as strictly applicable to the one as to the other:

“Sua cuique quum sit animi cogitatio Colorque privus — Lee

I should be sorry to see the sober sense of my countrymen perverted by a taste for fastidious distinctions. Simplicity is the characteristic feature of English Sur- gery, which is neither more nor less than

�
 * Prol. Lib. V.


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PREFACE the application of the principles of inflammation, as illustrated by the genius of Joux HuntEr.

I cannot but fear that the condensed and compendious plan of this Volume may occasion disappointment to persons ad- vanced in the study of eye diseases. But I must remind them that it makes no pre- tension to the character of an elaborate systematic treatise, and is designed more particularly for the information of surgeons and students of surgery. It is the result of personal observation, not a compilation from the works of others. Neither is it in any degree critical. I have not time enough at my command to be an historian, nor ambition to be a controversialist. Facts, whether new or old, derive a value of au- thenticity from personal observation, which is not enhanced by the custom of collating

“materials from other sources. Such a cus- tom is likewise inconsistent with another valuable quality, in practical matters espe- cially—{ mean conciseness.

It was at the suggestion of a friend that I prefixed the sketches of anatomy and

xiii �


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Rh one of Denmark's most remarkable and important linguistic monuments.

Vedel was now requested to continue Saxo's chronicle and to bring it down to his own time, in order that there might be a complete history of Denmark, and as the most conspicuous men in the realm joined in the request, Vedel, after much doubt and hesitation, undertook this difficult and comprehensive task, and fully conscious of its great importance, he henceforth devoted all his energies to it. And yet it brought him scarcely anything but disappointments. As a matter of course the work could only progress slowly, as there were no historical collections or other chronicles to consult. Moreover, Vedel was far too conscientious and thorough to be satisfied with any superficial performance, or to seek to complete his work as quickly as it was desired by some distinguished individuals who seemed to think that the whole work could be written in a few years. Doubts were also expressed as to the real value of a work written in Danish, and, consequently, unintelligible to foreign scholars. And so it finally came to pass that Vedel fell into disfavor, and in 1594 he received royal instructions to deliver all the materials, collected by him with great care and trouble, partly on extensive journeys, which he for many years had made throughout the country, together with the portions already completed, to, who was professor of Greek, and in that very year had been appointed royal historiographer. It was supposed that the latter from all these materials, and from what might further be collected, would be able within six years at the latest to compile a history of Denmark from King Frode down to his own time, and that, too, in the Latin language. On account of this change Krag neglected his duty as professor in the university, and yet he was not able to do more than describe the first seventeen years of the reign of Christian III. After his death Vedel's collections were dispersed. All that has been preserved are a short dissertation on "how Danish history should be writ-


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PREFACE physiology, for the purpose of bringing the entire subject before the reader in the compass of a volume. In these short pieces, Lhave aimed at a simple and perspicuous exposition of all that appears essential to a right understanding of the principal dis- eases of the organ. For the more subtile anatomical points,‘.or rather questions, which I have purposely avoided, I refer my reader to the Appendix.

Against an over-weening spirit of anato- mical discovery, the pathologist should be | jealously upon his guard, if he would ob- serve honestly and reason accurately on the phenomena of disease. Some ingenious disquisitions have occasionally been given to the Public on the morbid affections of textures, of which the existence is proble- matical. I would by no means speak with disrespect of the pursuit of minute ana- tomy, nor presume to question its utility when conducted after the manner of Har- vey-and Ruysch; but I must be allowed to remark that such points as are too subtile to admit of demonstration, are not to be cleared by the helps of analogy and con-- jecture, and indeed are never satisfactorily �


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PREFACE proved but by the anatomy of disease, from which they derive their importance.

The second part of the work, containing the Pathology, was drawn up and intended for publication in the last Volume of the Surgical Essays, published jomtly by Mr. Astley Cooper and myself. It is unneces- sary to state the rcasons of its postpone- ment; aprincipal motive was the belicf that it would be more useful and acceptable to the junior part of the Profession, as it now stands, connected with the remaining con- tents of this volume. I am induced to mention this circumstance, by way of apo- logy, for what might appear to be occa- sional infringements upon the plan of consi- dering the diseases and their treatment distinctly. To a certain extent the blending of these subjects is unavoidable, but the Pathology having been designed for a sepa~ rate and distinct Essay without any direct view to the subject of treatment, the latter is introduced more freely in the way of illustration, than it would otherwise have been; and, consequently, anticipations and repetitions are more frequent. I do think, however, that this fault is mainly in the plan. I should not therefore @ priori have �


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PREFACE adopted it, but I was unwilling to disturb the arrangement of the piece first written, and to some readers it is probable that the division may not be unacceptable.

Some highly important topics, in the third division of the volume, my experience, as the reader may conclude, would have enabled me to treat much more in detail, than the plan of this work permitted. It is difficult to speak im so small a compass upon subjects like those of cataract and artificial pupil, either of which is sufficient, from its extent and importance, to furnish materials for a distinct volume. I have endeavoured, how successfully I know not, to guard against material omissions, instudy- ing to preserve conciseness.

As I have made little reference to the writings of others, the omission of the sy- nonima forming the crabbed vocabulary of Ophthalmologists, ancient and modern, will, I hope, need no apology. ‘The nomen- claturing mania appears to me an evil of increasing magnitude.

New Broad Street, Oct, 28, 1820. �


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172 ten," in which he develops the plan of his proposed work, and a few fragments of digested materials for the work. One of these fragments, "King Svend Haraldsson Forkbeard," was published about a hundred years after Vedel's death.

Vedel also rendered important services to literature by his publication of the oldest collection of popular ballads from the Middle Ages. It contains one hundred ballads explained and annotated, and appeared in 1591. He also left behind him, in manuscript, another smaller collection called "Tragica," which was not published before 1657. It was not, of course, Vedel's purpose to subject these ballads to any real criticism; he merely collected what he found and endeavored to clothe it in the most attractive form possible, and to this end he made such changes and additions as seemed to him necessary. These works are, nevertheless, of the greatest importance, for the people's taste for the old poetry was thus kept alive, and without these collections a large number of the ballads would have perished.

The Norwegian preacher (1545-1614) rendered great services to the history of Norway by his translation of the old sagas of the kings. Like Vedel's his work is marked by its excellent style. This also applies to his other writings, as for instance his "Norriges og omliggende Öers Beskrivelse"—a description of Norway and adjacent islands—in which is found historical material of value. His language is remarkably pure and his style is even and artless.

The execution of the work begun by Vedel was undertaken by the chancellor of the realm, Arild Huitfeld (1549-1609). From 1595 to 1604 he edited in ten volumes a chronicle of the Danish kingdom together with a chronicle of the bishops, and he calls it himself a preparation for a more ornate and


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 PREFACE

TO

THE SECOND EDITION,

The reception with which this Work has been honored affords me a very sincere gratification. Although it presents only, as its title imports, a general and cursory view of the subject, if that view is a correct one, it fulfils the intention with which it was published. A work of minute detail and elaborate research, though more agreeable to a few readers, would probably be less useful to the professional community.

I have scarcely altered the text of the first edition, but have added a few notes at the end of the volume. I am sorry that I have no better apology to offer for the long interval which has elapsed since the sale of the first edition.

ed.

New Broad Street, Sept. 1st, 1821. �


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PREFACE seconded by the co-operation of a gentle- man, so highly distinguished as the present senior surgeon of the Infirmary.

But whether my example or my services have been in any degree instrumental in promoting so desirable an object as that of recalling to the notice of the profession at large the neglected subject of these dis- cases, is a matter of no public interest, and which I am content to leave to the candor of the Profession.

Jn offering these observations, I entreat it may be understood, that it is far from my meaning to insinuate the slightest dero- - gation from the merits of some truly re- spectable Members of the Profession, who confine their attention to this class of dis- eases. We take a diflerent view of the subject ; but no man of ingenuous feelings will arrogate to himself that he alone walks in the right path.

Tn this country, the want of a compre- hensive treatise on the diseases of the cye has long been fclt and acknowledged. ‘The work of Professor Scarpa was the only �


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PREFACE It was with a public avowal of the sentiments so well expressed by the writers just quoted, that I accepted the situation of Surgeon to the Eye Infirmary, in the year 1810; and from these J have never swerved.

At the commencement of the following year, the students of surgery were first invited to attend the practice of the Infir- mary; an opportunity eagerly embraced, and which many hundreds have since enjoyed.

Among the gentlemen who with ardor and diligence entered upon this new and interesting study, during my connection with the Infirmary, I have the pleasure of including many of the best cducated and most rising men in the Profession ; and, if they will permit me to say so, some of my most estimable friends.

Upon occasion of electing a second sur- geon to that Establishment in 1814, my friend, Mr. Lawrence, became my col- Jeague. I consider it to be no ordinary sanction of my views, that they were thus �


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PREFACE fections contre-nature, et pour y remédier, faisoit en quelque sorte un art particulier. Mais quels fruits pourroit porter cette branche, étant separ¢e du tronc?. Il est bien prouvé, par les faits, que les progres de cette partie de la chirurgie ne sont dis quiaux grands Maitres qui ont pratiqué Part dans toute sa plénitude, et dont l’ex- ‘périence, relative aux maladies des yeux, a été éclairée par les lumiéres que leur avoient données les principes qui consti- tuent indivisiblement la science, sans la- quelle on ne peut excrcer aucune partie avec connoissance de cause.”—First Limes

of the Practice of Surgery, Vol. I. p. 433.

4th edit.

In this country, I believe no one before myself, who designed to practise general surgery, ventured to give more than a cursory attention to the diseases of the eye. A fear of heing disqualified in pub- lic opinion, by a reputation acquired in these, for the treatment of other diseases, was a motive, however groundless, sufli- cient to deter surgeons from the culti- vation of a large pad Ronin field of - observation and Pe �


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PREFACE They have no peculiarity, however, except what depends upon their number, and the tenderness and functions of the organ af- fected. In their nature they are swayed by the same laws which influence all common diseases, for which the practice of surgery is instituted; and their treatment is regu- lated by general principles, which prevail throughout the whole of this indispensable art.

No one, except the thorough surgeon, can make the complete oculist; by which Jast term is not meant any body who can merely manage to extract the cataract bet- ter than the generality of surgeons, but a man whose science leads him to recognise the analogy betwixt the diseases of the eye and those of other parts, and whose knowledge of the latter, while it qualifies him in a great measure for the treatment of the former, gives him a decided superi- ority over the bare oculist.”

“On a cru faussement (says the intelli- gent M. Louis, in adverting to the diseases of the eye,) que le scavoir nécessaire pour discerner le caractére de ces diverses af- �


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PREFPACKH more strikingly illustrates the truth of the doctrine, that the confinement of any branch of the Profession to the hands of a few, operates prejudicially to science, than the state of information in this Country, concerning the Diseases of the Eye. Mr. Samuel Cooper has spoken so preciscly as I think, upon this subject, that I cannot do better than quote his words.

«The disorders of the eye and its appen- dages are far more numerous and diversi- fied than those of any other individual part of the body, and some of the requisite ope- rations for their relicf ought to be done with the nicest combination of skill and delicacy. These circumstances, ‘strangely enough, have had the effect of inducing an erroncous supposition, that such cases do not properly enter into the department of ordinary surgery; but ought to be con- signed to the care of a man, who makes them exclusively the object of his atten- tion, and disregards disease in every other form. The morbid affections of the eye, it is true, like all other surgical cases, must be studied, in order to be understood. �


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PREFACE.

Tur Volume which I now present to the Public, is the result of a more ample op- portunity of observing the diseases of the important organ of which it treats, than commonly falls to the lot of Hospital Sur- geons. This opporturnity, originally de- rived from my situation during a period of seven years, as Surgeon to the London Infirmary for Discases of the Eye, has been considerably augmented by private practice in the same branch of the Profes- sion, contingent to that appointment.

I have always thought that the ad- vantages obtained by the subdivision of professional talent and labor, are infinitely everbalanced by those which arise from the general and undivided application of these instruments of knowledge. ‘No fact �


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]]|25|4=5}}


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Am glad of it, said I, settling the account with myself as I walk'd into Lyons—my chaise being all laid higgledy-piggledy with my baggage in a cart, which was moving slowly before me—I am heartily glad, said I, that 'tis all broke to pieces; for now I can go directly by water to Avignon, which will carry me on a hundred and twenty miles of my journey, and not cost me seven livres—and from thence, continued I, bringing forwards the account, I can hire a couple of mules—or asses, if I like, (for no body knows me) and cross the plains of Languedoc, for almost nothing—I shall gain four hundred livres by the misfortune clear into my purse;


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 and pleasure! worth—worth double the money by it. With what velocity, continued I, clapping my two hands together, shall I fly down the rapid Rhone, with the on my right-hand, and  on my left, scarce seeing the ancient cities of, Valence, and Vivieres. What a flame will it rekindle in the lamp, to snatch a blushing grape from the Hermitage and Cotê roti, as I shoot by the foot of them? and what a fresh spring in the blood! to behold upon the banks advancing and retiring, the castles of romance, whence courteous knights have whilome rescued the distress'd—and see vertiginous, the rocks, the mountains, the cataracts, and all the hurry which Nature is in with all her great works about her


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 As I went on thus, methought my chaise, the wreck of which look'd stately enough at the first, insensibly grew less and less in its size; the freshness of the painting was no more—the gilding lost its lustre—and the whole affair appeared so poor in my eyes—so sorry!—so contemptible! and, in a word, so much worse than the abbess of Andoüillet's itself—that I was just opening my mouth to give it to the devil—when a pert vamping chaise-undertaker, stepping nimbly across the street, demanded if Monsieur would have his chaise refittedNo, no, said I, shaking my head sideways—Would Monsieur chuse to sell it? rejoin'd the undertaker—With all my soul, said I—the iron work is worth forty livres—and the glasses worth forty more—and the leather you may take to live on.


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 —What a mine of wealth, quoth I, as he counted me the money, has this post chaise brought me in? And this is my usual method of book-keeping, at least with the disasters of life—making a penny of every one of 'em as they happen to me

Do, my dear Jenny, tell the world for me, how I behaved under one, the most oppressive of its kind which could befall me as a man, proud, as he ought to be, of his manhood

'Tis enough, said'st thou, coming close up to me, as I stood with my garters in my hand, reflecting upon what had not pass'd'Tis enough, Tristram, and I am satisfied, said'st thou, whispering these words in my ear, **** ** **** *** ******;—**** ** ****


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 any other man would have sunk down to the center

Every thing is good for something, quoth I.

I'll go into Wales for six weeks, and drink goat's whey—and I'll gain seven years longer life for the accident. For which reason I think myself inexcusable, for blaming Fortune so often as I have done, for pelting me all my life long, like an ungracious dutchess, as I call'd her, with so many small evils: surely if I have any cause to be angry with her, 'tis that she has not sent me great ones—a score of good cursed, bouncing losses, would have been as good as a pension to me.


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 One of a hundred a year, or so, is all I wish—I would not be at the plague of paying land tax for a larger.

those who call vexations,, as knowing what they are, there could not be a greater, than to be the best part of a day in Lyons, the most opulent and flourishing city in France, enriched with the most fragments of antiquity—and not be able to see it. To be withheld upon any account, must be a vexation; but to be witheld by a vexationmust certainly be, what philosophy justly calls


text: The Life and Opinions of Tristram Shandy, Gentleman/Volume 7/Chapter 29


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 Frierson, Asst. U. S. Atty., of Little Rock, Ark., and Charles R. Denny, Jr., of Washington, D. C., Atty., Department of Justice, on the brief), for appellee.

Before STONE, SANBORN, and THOMAS, Circuit Judges.

PER CURIAM.

This is an appeal from a judgment entered in condemnation proceedings instituted by the United States. It has moved to dismiss the appeal for failure of the appellants to comply with the fourth subdivision of paragraph 2 of Rule 14 of the Rules of this Court (effective September 16, 1938), which requires that a brief shall contain “a separate and particular statement of each assignment of error (in criminal and bankruptcy cases) or of each point relied upon (in civil cases) intended to be urged, with the record page thereof. When the error is as to the admission or rejection of evidence, the statement shall quote such evidence with the rulings thereon, giving pages of the printed record where it occurs.” Paragraph 4 of Rule 14 provides: “When, according to this rule, an appellant in a criminal case is in default, the appeal may be summarily dismissed; and, on motion, any appeal may be dismissed; * * *.”

With a single exception, all of the appellants’ points to be relied upon as stated in their brief relate to alleged errors with respect to the admission or rejection of evidence, without quoting such evidence with the challenged rulings thereon and without showing what rulings are challenged. The only point which does not relate to evidence admitted or rejected is stated as follows: “The court erred in rendering judgment to condemn the land in controversy.” This point is obviously insufficient to direct this Court’s attention to any action or ruling of the court below which is claimed to be erroneous. Ayers v. United States, 8 Cir., 58 F.2d 607, 608; Wade v. Blieden, 8 Cir., 86 F.2d 75, 77; Krause v. Snyder, 8 Cir., 87 F.2d 723, 725; Hobbs-Western Co. v. Employers’ Liability Assur. Corp., Ltd., 8 Cir., 102 F.2d 32, 34; Humphreys Gold Corp. v. Lewis, 9 Cir., 90 F.2d 896, 899.

A failure to comply with the requirements of the fourth subdivision of paragraph 2 of Rule 14 of the Rules of this Court, which is a mere restatement of a rule which has existed for many years, warrants either a dismissal or affirmance (Mathewson v. First Trust Co. of St. Joseph, Mo., 8 Cir., 100 F.2d 121, 123, and cases cited), and a statement of points relied upon which is violative of the rule presents no question which this Court is required to review. See and compare Haldane v. United States, 8 Cir., 69 F. 819, 821; Wagner Electric Corp. v. Snowden, 8 Cir., 38 F.2d 599, 601; Wade v. Blieden, 8 Cir., 86 F.2d, 75, 77, supra; Krause v. Snyder, 8 Cir., 87 F.2d 723, 725, supra; Morehouse v. United States, 8 Cir., 96 F.2d 468, 469. This case is not one which requires that compliance with Rule 14 be waived in order to prevent a manifest injustice.

The motion of the appellee is granted, and the appeal is dismissed.


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 Appeal from the District Court of the United States for the Southern District of New York.

Action by Alice T. Yardley against Houghton Mifflin Company, Incorporated, for damages for copyright infringement, wherein defendant filed a counterclaim for declaration that a purported renewal of original term of copyright was invalid. From a decree dismissing plaintiff’s complaint and sustaining defendant’s counterclaim, 25 F.Supp. 361, the plaintiff appeals.

Affirmed.

Sidney S. Bobbé, of New York City, for appellant.

Allan C. Bakewell and Thomas J. Byrne, both of New York City, for appellee.

Before SWAN, CHASE, and CLARK, Circuit Judges.

SWAN, Circuit Judge.

Before passing to a consideration of the interesting questions presented by this appeal it is desirable to state in outline the facts that give rise to them. The amended complaint seeks damages for infringement of a registered copyright of a mural picture painted by Charles Y. Turner and placed by him on the wall of the auditorium room of the DeWitt Clinton High School. Mr. Turner executed this painting pursuant to a written contract, dated January 14, 1904, between the City of New York and the general contractor for the erection of the school building, by the terms of which the city was to select the artist and the contractor was to pay him upon a certificate issued by the Superintendent of School Buildings, with the approval of the Committee on Buildings of the Board of Education, and to include such payment in the cost of the building. It is conceded that the mural was accepted and the artist received payment. The written contract between the city and the building contractor was silent as to who was to have the copyright of the painting to be made. Nor is there evidence of any agreement on this subject made by Mr. Turner with either the city or the building contractor. But the painting bears an inscription “Copyright, C. Y. Turner, 1905,” and there is nothing to suggest that those words were not on it when it was first


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 in the building. The district judge rightly assumed that they were. The evidence also shows that on October 30, 1905, Mr. Turner, “as author, designer and proprietor” made copyright registration of the picture under R.S. § 4952, as amended by the Act of March 3, 1905, 33 Stat. 1000. The term of such copyright expired October 29, 1933. Mr. Turner died on December 31, 1918, and the plaintiff, Mrs. Yardley, who was one of his surviving sisters, sought and obtained in 1932 a purported renewal of the original copyright. She does not, however, ground her present claim upon such renewal, which is now conceded to be invalid, but upon an assignment of the original copyright, and of rights of action thereunder, executed by her brother’s executor in February 1937. The executor, who took office in 1919, served continuously until January 30, 1937, when he was duly discharged by a decree of the surrogate of New York County. Such decree authorized him to transfer to Mrs. Yardley for a consideration of twenty-five dollars, “all existing copyrights of decedent and rights to renewal of those that are renewable, including all benefits that have been and may hereafter be derived therefrom, and all rights of action, if any, thereon.” On February 27, 1937, Mrs. Yardley obtained from the executor an assignment of several specified copyrights, including the one in suit, and of all rights of action for infringements thereof, past or present. Shortly thereafter she brought the present suit, charging the defendant with infringement, beginning in 1924 and continuing through subsequent years, by publishing a reproduction of the painting in two history books for school use, which went through several editions. By reason of the statute of limitations the editions complained of were limited upon the trial to those brought out between March 30, 1931 (six years before the date of suit) and the date of expiration of the copyright, October 29, 1933. In answering the complaint the defendant filed a counterclaim which asked for a declaration that the purported renewal of the copyright, which Mrs. Yardley had sought and obtained in 1932, was void. After final hearing the district court dismissed the plaintiff’s complaint, sustained the defendant’s counterclaim, and awarded costs and a counsel fee to the defendant. From this decree the plaintiff has appealed.

One ground upon which the district court dismissed the complaint was that the surrogate’s decree authorizing Turner’s executor to transfer to the plaintiff “all existing copyrights of decedent” and all rights of action thereon, did not include the copyright in question because it was not an “existing” copyright, having expired in 1933, and, since the executor’s assignment went further than the decree authorized, the plaintiff obtained thereby no valid title to the cause of action sued on. The appellant argues with considerable persuasive force that such an interpretation of the surrogate’s decree is too narrow, and that in any event an executor has power to sell and assign personal property of the estate without court authorization and, therefore, effect should be given to the executor’s express assignment of the copyright in suit, regardless of what the surrogate’s decree authorized. But we find it unnecessary to decide this question because the decision may be supported upon an alternative ground discussed in the opinion of the district judge.

This ground was based on reasoning substantially as follows: When an artist accepts a commission to paint a picture for another for pay, he sells not only the picture but also the right to reproduce copies thereof unless the copyright is reserved to the artist by the terms, express or implicit, of the contract; there was no evidence from which such a reservation could be inferred; therefore the copyright registration in Turner’s name, if valid at all, was held in trust for the city, and the latter, through its Board of Education, had given consent to the defendant to publish copies of the painting in its histories; hence there was no infringement. Each of the foregoing findings of fact and conclusions of law is disputed by the appellant.

It seems surprising that so little precise authority has been discovered; only one case exactly in point has been turned up. A fairly close analogy, however, may be found in cases discussing the law of copyright with respect to photographers. The rule has been clearly laid down in this circuit that where a photographer takes photographs of a person who goes or is


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 sent to him in the usual course, and is paid for the photographs and for his services in taking them, the right of copyright is in the sitter or in the person sending the sitter to be photographed, and not in the photographer; but the photographer is entitled to copyright where he solicits the sitter to come to his studio and takes the photographs gratuitously for his own purposes and at his own expense. Lumiere v. Robertson-Cole Distributing Corp., 2 Cir., 280 F. 550, 24 A.L.R. 1317, certiorari denied 259 U.S. 583, 42 S.Ct. 586, 66 L.Ed. 1075; Lumiere v. Pathe Exchange, 2 Cir., 275 F. 428; Press Pub. Co. v. Falk, C.C.S.D.N.Y., 59 F. 324; see also Cory v. Physical Culture Hotel, 2 Cir., 88 F.2d 411, photograph of inanimate object. We think the rule should be the same when a painting is made by an artist. If he is solicited by a patron to execute a commission for pay, the presumption should be indulged that the patron desires to control the publication of copies and that the artist consents that he may, unless by the terms of the contract, express or implicit, the artist has reserved the copyright to himself. Such a presumption must rest on the supposed intention of the parties, and the appellant argues that when the painting is not a portrait and when the patron who commissioned the artist to paint it is not engaged in publication for profit and apparently desired the painting only for decorative purposes, the presumption is not justified. But we think the distinction is too refined to be accepted. It is not unusual for cities or other municipal bodies to publish post card copies or other reproductions of publicly owned works of art. The evidence shows that the painting was one of which the city might well be proud and wish to reproduce, as it represented the first attempt of the Board of Education to beautify the walls of city schools. We believe, therefore, that the general rule is applicable and that the right to copyright should be held to have passed with the painting, unless the plaintiff can prove that the parties intended it to be reserved to the artist. Dielman v. White, C.C.Mass., 102 F. 892.

The terms of the contract between the city and the contractor show that an artist was to be commissioned to paint a mural for pay. For reasons already discussed this contemplated that the city should get the copyright as well as the painting. There is no evidence as to the precise terms of the agreement made by Turner when he accepted the employment. In the absence of such evidence we must infer that whatever agent of the city negotiated with Turner did his duty and obtained for the city all that its contract for the building required; in other words, that Turner’s contract of employment did not reserve the copyright. His subsequent unilateral act in placing on the painting the copyright notice would be ineffective to modify his contract of employment. It was at most an offer to modify it. The acceptance by city officials of the painting bearing the notice would show acceptance of that offer only if the officials observed the notice and had authority to make a contract modifying Turner’s original employment. In both respects the proof is insufficient. As to the former, there is no evidence that the Committee on Buildings, whose approval of the painting was required before the Superintendent of School Buildings should issue his certificate for payment, ever had the inscription called to its attention. If it did come to the Committee’s attention, it is entirely possible that the Committee protested to Turner and got his consent to waive his claim of reservation of copyright. The subsequent conduct of the parties is entirely consistent with such a possibility. Turner, so far as appears, never made any copies. During Turner’s life time some school official or teacher, whose identity is not clearly proven, caused 30,000 postal card reproductions to be made for sale or free distribution to the students at the school; and after Turner’s death, the Board of Education gave permission for publication in the appellee’s histories. It is urged that the evidence is insufficient to sustain the court’s finding that such permission was given. After so long a lapse of years Mr. Webster could not remember definitely to what official he had applied for permission, but the fact that under the published reproduction the appellee printed the inscription “Copyright, Courtesy New York Board of Education,” tends to support an inference that Webster had communicated with the Board and had received its consent. It is urged further that the Board had no legal power to give an effective consent. But whether the consent was effective is immaterial for present purposes. The fact of giving it, regardless of the Board’s authority, shows that the Board did not understand that Turner reserved the copyright. But if the opposite view were taken and acceptance of the painting with the copyright notice upon it


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TO THE

(Price One Shilling.)


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 were held to justify an inference that the accepting officials acceded to Turner’s proposal to reserve the copyright, the plaintiff must fail for lack of evidence that such officials had legal power to modify the contract. In this respect the case is precisely like Dielman v. White, C.C.Mass., 102 F. 892. There the complainant accepted a commission to design and install a marble mosaic in the reading room of the Congressional Library. The contract of employment was silent as to copyright and the designer placed upon the cartoon and the completed mosaic a notice of copyright in himself. In a well considered opinion Judge Lowell held that the failure of officials in charge of constructing the building to object to the placing of the copyright notice upon the mosaic panel did not bind the government to a construction of the contract contrary to its legal effect, or entitle the complainant to claim a copyright in the absence of any reservation of such right. We believe the case was correctly decided and should be followed by this court. The principles it announces are conclusive of the case at bar in so far as dismissal of the complaint is concerned. Whether Turner’s registration of copyright should be deemed void, because he was not the “proprietor” of the right to apply for it, or should be deemed to be valid but held in trust for the city, we need not decide. On either hypothesis the plaintiff was not entitled to bring the suit.

By its counterclaim the appellee sought a declaration that the renewal copyright registration obtained by the plaintiff in 1932 was void because not effected pursuant to the statute, 17 U.S.C.A. § 24. It is now conceded that only Turner’s executor could legally obtain a renewal. Fox Film Corp. v. Knowles, 261 U.S. 326, 43 S.Ct. 365, 67 L.Ed. 680. While the original bill had asserted a claim based upon the renewal, the amended bill did not, and the evidence disclosed that the defendant had ceased publication of its reproduction of the painting in 1936, when notified of the claim of infringement. Hence, the appellant argues that there was no controversy between the parties requiring a declaration of rights as to the renewal copyright. We cannot agree. The counterclaim asserted the invalidity of the renewal and the plaintiff’s reply thereto denies the allegations of invalidity. She conceded invalidity at the trial but she had previously asserted rights under the renewal and she might do so again in a subsequent suit, if its invalidity were not adjudged. There was no error in awarding judgment on the counterclaim.

Judgment affirmed.


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 TO

JOHN RICHARD FARRE, M.D.

THE AUTHOR DEDICATES THIS VOLUME AS A MEMORIAL OF ESTEEM FOR 11S CHARACTER, ADMIRATION OF HIS TALENTS, AND

GRATITUDE FOR HIS FRIENDSHIP. �


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8 no favourable promise to such an attempt, had it been thought of. Cuttings of various sorts, were indeed practised by - some nations, as religious, or superstitious rites; but it is exceedingly doubtful if the knife were purposcly employed as a remedy, before the time of AEsculapius. Of this distinguished personage, it is said by Pindar, in his third Pythian Ode, that “he cured those who were affected with ulcers of spontaneous origin ; those who were wounded by the polished brass, or the far-thrown stone; and those who suffered by the summcr’s heat, or the winter's cold; curing some by incantations, and others by medicines; restormg some to health, or straitness, by remedies bound round the diseased members, and �


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10 novel atid distinguishing, and will account for its being affirmed by Diodorus,* that he was the inventor of Surgery. His son Podalirius is the first person on record, who purposcly performed ‘Venesection; and Homer speaks of the importance of Machaon in the Grecian army before Troy, on account of his skill in the excision of darts. The boldness evinced by first and successfully employing the knife, probably contributed .much to extend the fame of ZEsculapius, and to confirm that confidence, first in himself, and his children who were inate by him, and afterward in ‘their descendants, which sccured to them ‘the large

�
 * Diod. Sicul. L. v. ©, 74.


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11 share of practice. they cnjoycd for so many ages in Grecce.!

From the writings of Hippocrates we find; that operative Surgery had, by his time, made considerable progress; © and it.is also evident, from that clause in his oath, by which he abjured. cutting for the stone; not only that .such an operation was then performed, but also that there were Surgeons employed for this, and probably, for other similar purposes, even in Greece, who were distinct from the physicians of his family. Pythagoras had employed his pupils in the dissection of animals; and Alemzeon, of Croton, who was one of them, is recorded as the first who ventured to amputate a limb �


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2 cation of natural Knowledge, which Infinite Goodness has provided by the Healing Art.

A Commemorative Address, suggested by amiable Feeling, and instituted by public Spirit, for the Promotion of these Objects, annually enlivens the Energies of Members, and crowns the preceptive Exercises in this Theatre.

Accustomed to Obedience, on every Call of the College; and encouraged by the Experience of your liberal Indulgence; I have again ven- turcd on the Task of celebrating the Honour of Surgery; and the Memory of Men, by whose Labours it has been advanced.

What is “the Honour of Surgery ?”—Benefit to Mankind: and Distinctions, founded on this well-defined Basis, are its legitimate Expressions.

Upon this Principle, the Alterations in the titulary Style of the College, were allowed; and �


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A


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4 the Labours of this College, conciliated the Favour, and Munificence, of our just, beneficent, and sagacious, Sovereign.

Waving, then, every Expression of that Sense of Gratitude which is entertained of the Advancers of these Honours; we will proceed tothe Consideration of the Benefits which they have signalized, and of the Way in which they are calculated to promote the best Interests of Mankind.

Causes, affecting, in any Manner, or Degree, the Progress of the Arts, and Sciences, in national Communities, if they comprehend in their Influence, the Healing Art, must be within the Scope of preliminary Examination, on this Occasion; especially if they have been dwelt upon, by commanding Abilitics, in this Theatre.

It is necessary to plead these Considerations in Justification of myself: for the Authorities of this College are bound to maintain, that not any �


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5 Subject, foreign to, or unconnected with, its Objects, can,properly, be introduced in this Theatre.

Accordingly as a Person is swayed, from whatever Cause, in Favour of any Mode of Government, Occasions are taken to impress the Minds of others with a Belief, that the Form preferred is the best for the Promotion of the Arts, and Sciences: and thus the Healing Art has been presented, combined with other Distinctions of Knowledge, in Exaltation of Republican Establishments.

But unbiassed Reflection on the associated Circumstances of Discoveries, and Improve- ments, in Anatomy, and Surgery, through a long Series of Ages, would incline the Mind to Conclusions, very different from some which have been drawn from uncertain Premises.

The Fabric of Brain; the innate Disposition of Mind; and the corporeal Aptitudes; of Men; �


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6 are various as the Distinctions of human Knowledge.

Inquiry into the constitutional Frames, and. Dispositions; and their correspondent Effects in the Actions of Men; will produce more Light on the Causes of important scientific Events, than can be derived from hypothetical Reasoning on the Influence of Governments.

Numerous Causes, affecting the Functions of Organs, may weaken the Expression of natural Disposition; and may, even, in some Degree, vary its Inclination: but, when-possessed with strong impelling Power, not any Kind of Government, or external Influence, will move the Mind against its Spring of Action—-What extrancous Impulse could have diverted Joun Honter from the Track of his scientific Carecr?

In Support of this Opinion, of the Force of �


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7 innate Disposition, Examples might be adduced from the Histories of People, of every Nation, every Form of Government, in every Age.

Independently, however, of that Disposition which may be pronounced uncontroulable, and which shines, principally, in the Walks of Science; there are Motives of Action which exert a general Influence on Mankind.

Avarice, and Desire of Distinction; are amongst the ruling’ Principles of Action. The former may exist under any System ofGovernment: but the latter is, almost, peculiar to the monarchical Form; and is the Source of Energies which dignify human Nature.—The gracious Disposition of a Monarch is conspicuous, by the liberal Encouragement which he affords to the Exertions of his Subjects, in the various Departments of Art, and Science, and in the Cause of Humanity.

The generalizing Influence of Republics is �


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 358

mingled in the curd, cake the yolks of six eggs, and the whites of three, beat them very well with a little thick cream and salt; and after you have made the coffins, just as you put them into the crust (which must not be till you are ready to set them into the oven) then put in your eggs and sugar, and a whole nutmeg finely grated; stir them all well together, and so fill your crusts; and if you put a little fine sugar fierced into the crust it will roll the thinner and cleaner; three spoonfuls of thick sweet cream will be enough to beat up your eggs with.

TAKE the finest and clearest from specks you can get; to a pound of plumbs take a pound and a quarter of sugar, the finest you can get, a pint and a quarter of water; slit the plumbs and stone them, and prick them full of holes, saving some sugar beat fine laid in a bason; as you do them, lay them in, and strew sugar over them; when you have thus done, have half a pound of sugar, and your water ready made into a thin syrup, and a little cold; put in your plumbs with the slit side downwards, set them on the fire, keep them continually boiling, neither too slow nor too fast; take them often off, shake them round, and skin them well, keep them down into the syrup continually, for fear they lose their colour; when they are thoroughly, scalded, strew on the rest of your sugar, and keep doing so till they are enough, which you may know by their glasing towards the latter end; boil them up quickly.

TAKE the weight of the currants in sugar, prick out the seeds; take to a pound of sugar half a jack of water, let it melt, then put in your berries and let them do very leisurely, skim them, and take them up, let the syrup boil, then put them on again, and when they are clear, and the syrup thick enough, take them off and when they are cold put them up in glasses.

TAKE of the raspberries that are not too ripe, and take the weight of them in sugar, wet your sugar with a little water, and put in your berries, and let them boil softly, take heed of breaking them; when they are clear, take them up, and boil the syrup till it be thick enough, then put them in again, and when they are cold put them up in glasses.


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Phoebe and Her Other Self

RS. MARTIN always considered the year Phoebe grew up to be the most trying of her whole existence. In some respects it was much harder on her than the parallel process with Ernest. For Ernest, being male, was often an unknown quantity. Even in her earliest and most tentative explorations into masculine psychology, Mrs. Martin had recognized the existence of areas she could never penetrate because of barriers she could never cross. But with Phoebe she had quite a different feeling—a feeling of bafflement. It was akin to the sensation of strolling through a familiar country in a dense fog.

“What in the world is the matter with Phoebe nowadays?” Mr. Martin was constantly asking his wife. “She seems so dissatisfied all the time. I don't know what to make of her.”

“Oh, nothing,” Mrs. Martin reassured him. “It's only that she's developing. Girls always get to a period when they're more interested in themselves than anything else in the world. She'll come out of it all right.”

But though she spoke Mr. Martin so fair, Mrs. Martin had her own irritations with her daughter. She could not put her finger on what, as she expressed it, “ailed” her.

It was not alone that Phoebe was silent and preoccupied in the family circle. It was that she condescended rather too much to the world at large. Socially, Phoebe's presence was characterized by a pale, withdrawn air. Her conversation consisted of epigrams aimed scathingly at the human race and of general statements aimed scathingly at human institutions. Mrs. Martin gathered that, in especial, the male half of creation did not meet with Phoebe's approval. If Phoebe's attitude provoked opposition, her delicate brows merely lifted with the disdain of the misunderstood; she wrapped herself in that lofty silence which is the final defense of mental superiority.

Mrs. Martin's least worry was that Phoebe was losing all her pretty manners. Deeper than that, a fear lurked ever in the background of her mind that her daughter would grow up “strong-minded.”

Phoebe could have explained it all in a single sentence. For Phoebe had made a terrifying discovery about herself—had made it in the most accidental way. But here, as Phoebe might herself have said if she had been writing this passage, it will be necessary to turn back a few pages.

In the beginning Phoebe had not intended to bare her soul to the world. But of those four blank-books which came to be the central decoration of her desk the first two were labelled “Gleanings from My Books”; but the second two, willy-nilly, became “My Other Self.” In other words, what, in Volumes I and II, led a rather furtive existence among the quotations had, in Volumes III and IV, crowded the quotations out, and become a full-fledged diary.

A comparison of sample pages is most illuminating at this juncture.

Page 1 of “Gleanings from My Books” bears, stark and unqualified, the following literary harvest:

On the other hand, Page 1 of “My Other Self” plunges at once into the abysses of introspective psychology. Thus:

If Mrs. Martin, having once been a girl herself, could have seen page 29 of Volume V (“Storm and Stress"), all would have been clear to her:

Without further elucidation, it will be perceived that, with Phoebe, things were about as bad as they could be. Unfortunately, prolonged mental unrest inevitably affects character and habit. Phoebe was not exempt.

The first thing to happen was that her bedroom underwent a complete metamorphosis—the third in its history. Everything that made for decoration was cast out. Out went the fish-net wall drapery with its catch of photographs. Out went the pictures, poster loot of many magazines, passe-partouted by Phoebe's own fingers. Out went the souvenirs in birch-bark, burnt wood, and abalone shell, all geographically inscribed, of many happy vacations. Out went the embroidered litter of the bureau and the last futile frivolity of the church bazaar. Out went the Baryé lion even. A period of conventual plainness ensued. Painfully, Phoebe printed cards with her favorite quotations and hung them where her eye could fall on them morning and night. 'Lessons from the Masters” she called them. Marcus Aurelius and Epictetus were the favorites.

As this was the first, so it was the least effect of Phoebe's perturbing discovery. In passing, however, it is enough to note that Mr. Martin, in his weekly excursions with her to the theater, had steadily to fight a tendency on her part to substitute the Ibsen of her most recent literary enthusiasm for the vaudeville of his taste. But by January Phoebe felt herself to be a changed girl—“melancholy,” in her own quoted phrase, “had marked her for its own.”

It is, however, one of the most harrowing disillusions of life that, even at seventeen, melancholy will have its mitigations.

One night Phoebe burst into the library, radiant with glad tidings.

“Mother,” she cried, “I've made a new friend.”

Mrs. Martin groaned inwardly.

“Isn't it queer”—Phoebe actually poured herself out with some of her former impetuosity—“how you can sit beside a person for a whole year—how you can know a person all your life—and yet not really understand them at all? And suddenly they say something that shows you're kindred spirits, and then it's different ever afterwards. That is the way this happened.”

To Mrs. Martin, Phoebe's most lovable quality was her inability to recognize the artificial distinctions of caste. Her first social affinities were the washerwoman's children, and it had never blurred their charm for her that they ruled her with a rod of iron. In her kindergarten days, she used regularly to bring home all the colored children she could pick up, fascinated by a preponderance of pigtail and wide, dazzling smile. Later, it was always the maimed, the halt and the blind—the derelict, in short, of the social world—whom Phoebe chose for her bosom friends, lavishing upon them her toys, her pocket-money and, unless Mrs. Martin interfered, her very clothes. As she grew older, this tendency increased rather than diminished. Mrs. Martin could never bring herself to curb it, although she sighed sometimes when when her daughter passed the gilded elect, unnoticing and unnoticed.

But perhaps it was this breadth of social sympathy that had developed Phoebe's character. For Phoebe had not been in High School a year before it was evident that she would become the guiding spirit of her class. Mrs. Martin had no means of knowing that Tug Warburton had much to do with the public recognition of this leader quality. He had, in fact, strained almost to the breaking point his influence as athletic boss of his class to insure Phoebe's election.

It had also been evident from the beginning of her Senior year that Phoebe would be valedictorian—as evident, it may be noted in passing—to Phoebe as to anybody else. In fact, the fall instalment of her diary, which was then just ceasing to be a store-house for quotations, contained the germs of certain passages in her valedictory—“June has come with its riot of rhythms and roses” and “As the emigrant stands on the proud ship.” These passages marked it—and justly, as parallel passages had marked all the valedictories which preceded it—as the most able valedictory ever read in the M. H. S.

“Who is she?” Mrs. Martin asked.

“Augusta Pugh,” Phoebe answered in the voice of him who proclaims the prophet to his insensate countrymen.

Ernest emitted a snort of derision. “Gussie Pugh! That bag of bones!”

“Mother,” Phoebe asked in an ominous voice, “will you kindly request Ernest Martin not to refer to a girl as a 'bag of bones' in my presence?”

“Ernest,” his mother was already remonstrating in a shocked tone, “do you think that is pretty?”

“But, mother,” Ernest answered argumentatively, “wait until you see her. She's so thin that when the fellows meet a hungry dog` on the street they always say, 'Go along up to Pugh's, you'll find a bone there, all right, all right.' Honest they do!”

“Mother,” Phoebe exclaimed passionately, reaching across the chasm of years that divided them and groping blindly for the support of their common sex, “aren't boys the most loathly creatures that exist? Why, if I were a boy, I'd—” Her rage choked her to inarticulateness.

“Well, if I was a girl like Gussie Pugh—” Ernest in his turn became inarticulate.

“I guess if you knew Gussie as I do,” Phoebe found tongue at last. “She's the greatest student—reads Goethe and Heine like a streak. If you knew what her life was like and how she was misunderstood you'd pity her.”

“I'd hate the sight of her whatever she was,” Ernest persisted doggedly; “she looks like a frankfurter on a hairpin.”

“Ernest,” Mrs. Martin said sternly, “don't ever let me hear you say a thing like that again.” But even as she rebuked, her intuition, reinforced by reiterated experience, warned her what to expect of Gussie.

She had not long to wait. The following Saturday Phoebe came into the upstairs sitting-room, importance oozing from every pore of her.

“Mother,” she announced as one who ushers to royalty, “this is Augusta.”

“Augusta,” Mrs. Martin said pleasantly, “I'm very glad to see you.”

Augusta made fitting response to this welcome. For an instant, her cool light eyes impaled Mrs. Martin with a critical stare. Then they withdrew behind pink lids and a fringe of yellow lash. At intervals, they made furtive but composed survey of the light, pleasant room.

“Mother,” Phoebe went on—and her mother perceived at once that she was in one of her moods when she bustled mentally—“I'm going to take Augusta up into my room and, unless you need me for something very important, I'd rather we wouldn't be interrupted this afternoon. Augusta and I have some very interesting—er—er—work—that we want to discuss.”

“Very well,” Mrs. Martin said. She watched the two girls out of the room, not confessing to herself that she shrank from the intellectual frigidity of Miss Pugh's gaze.

Augusta was obviously a year or two older than Phoebe, and was what, in Mrs. Martin's younger days, people described as “sandy-complected.” Freckles, thin, straight, red hair, tow-colored lash and brow, all the physical concomitants were there. There, too, was the rust-colored dress in which with invariable unbecomingness—it was Mrs. Martin's generalization—Augusta's type inevitably arrayed itself. But all these details sank into the background in the overwhelming effect of Augusta's excessive thinness. Mrs. Martin with a sense of shame crushed back the instinct to smile at the sapience of Ernest's descriptive phrases.

The “something very important” which Phoebe and Augusta had to discuss was nothing more or less than their two diaries. For the remark which had revealed to them that they were kindred spirits was this:

“Well,” Augusta had said emphatically, “all I know is if I were to tell people some of the thoughts that come to me, it would frighten them. And that's why I keep a diary.”

“Oh, Augusta,” Phoebe exclaimed in awe, “do you keep a diary too?”

“You don't mean to tell me that you do?” Augusta answered.

And so beginning, naturally enough, with the confession that they wrote what it would be shamefully impossible to confide to any other living being, they ended with an unblushing agreement to read aloud from these dangerous memoirs.

Alone in Phoebe's room, they veered off, shy of their own self-consciousness, from a consideration of the subject in hand, although Augusta's blank-book of butcher's linen, conspicuously labeled WELSCMERTZ, lay in her lap, and Phoebe's, of a luxurious near-leather, sprawled ostentatiously open on her desk. The conversation was none the less intimate and revelatory.

“If I could write my life exactly as it's happened,” Augusta announced, “it would take the world by the ears. But,” she added with the noble resignation of the spirit bigger than its times, “it would be of no use to do it. Nobody would believe me. And so I only put down my thoughts. A few have tried to tell the truth, but it has always ended the same way—nobody has dared to tell everything. Bashkirtseff for instance. Bashkirtseff made a feeble attempt at self-revelation, but she didn't have the courage to tell the whole truth.” Augusta's lip curled with her scorn of the muzzled Bashkirtseff.

“Did you ever think what you'd like to be when you're a woman, Augusta?” Phoebe asked. “You know I myself never intend to marry.”

“Of course!” A faint, world-weary lifting of Augusta's eyebrows deprecated that possibility. “No girl who thinks would choose to marry.”

“Not when one must marry a man!” Phoebe said, a furious scorn italicizing her utterance.

“Not when one must marry a man!” Augusta echoed to the accompaniment of what Phoebe instantly recognized to be Augusta's idea of a shrug of the shoulders.

“Although,” Phoebe's gray eyes clouded, “I simply adore children.” Translating from Augusta's face the contempt that this weakness merited, she went on hastily. “Still you can always adopt all the children you want. But I don't intend to be a burden to my father—I intend to earn my own living. But there are only three things that I'd like to be—a great writer, or a great painter, or a trained nurse. I did think that once I'd be a reformer and become an expert on economic conditions as they affect women.” Reading in the sudden fixity of Augusta's gaze that she, in her turn, had opened vistas to surprise, she rushed on with a triumphant glibness. “I went into my father's office once to study the proletariat, but”

She stopped and allowed a tragic memory to make mystery in her expression.

“—but that dream is over. Have you ever thought what you would like to do, Augusta?” Phoebe's tone was ostentatiously cheerful.

“Thought about it!” Augusta smiled patiently. “I have thought of nothing else. And my mind is made up. Just as soon as I graduate I'm going on the stage.”

“The stage!” Even Phoebe was startled. She liked Augusta enormously and she thought her a very wonderful person. But an actress! Somehow it didn't seem to her that Augusta was just the kind of person to be an actress. Phoebe recalled suddenly that the companies “showing” for one night engagements at the Maywood Opera House always lodged with Mrs. Pugh. “Oh, that would be interesting,” she compelled herself to say, but her voice was a little flat.

“Yes,” Augusta went on tranquilly, “I feel it in me. I've made all my plans. I've even selected my stage-name—Mercedes Mordaunt—don't you think that's sweet?”

“Lovely,” Phoebe said, her enthusiasm reviving.

“And I'm making a careful study of Shakespeare,” Augusta continued fluently. “Or at least of those parts that appeal to me. I doubt if I shall ever make a great comedy-actress—I have too much temperament. Besides I prefer tragedy. І already know the balcony-scene from 'Romeo and Juliet' and the sleep-walking scene from 'Macbeth.'”

Phoebe's eyes went wide and shining. Phoebe was a little vague on the subject of “temperament.” Dimly she connected it with a facility for frequent appearance, because of violent social experiences, in the newspapers. If Augusta had “temperament,” then all was well. “Oh, Augusta, how wonderful you are! How I'd love to have you do one of those scenes! Couldn't you now?”

“Oh, dear, no. Not here. You see I have to have certain props, my wigs and costumes and make-up box. But some time when you come to my house, I'll do my whole repertoire for you.”

There followed a consideration of the diaries. And in the process occurred the most extraordinary series of coincidences that the two girls had ever known.

They endured with comparative calm the minor shock arising from twin recognitions of their deliberate miscomprehension by an uninterested, cold, cruel, and unfeeling world. But that moment was charged tight with electricity which revealed that each had passed through a period of dreadful anguish because it occurred to her—and, oh, with what a sickening sense of certainty—that she was an alien child, adopted in infancy.

“Why, do you know, Augusta,” Phoebe said, “the idea came to me in the middle of the night that I was adopted, and I couldn't sleep, it frightened me so. I didn't dare to ask anybody in the family about it, for I knew they'd deceive me if it were true. But one day, I was talking with Dr. Bush—he's our family physician, you know—and I said in a very careless tone, 'Oh, by the way, Dr. Bush, what kind of a baby was I?' Oh, Augusta, you can't imagine how I studied his face when he answered me. 'Why just the kind of girl you are,' he said. 'When you were born, the first thing your mother said was, “Is she a healthy child, doctor?” and I said, “Healthy? She's so healthy it will take all the strength you've got just to handle her.” Of course I never worried after that.”

A little later came that never-to-be-forgotten instant when they discovered that, crowning all the sorrows of their lives, towered the supreme regret that they had been born woman instead of man.

Augusta read impressively from her diary:

Later, piling Ossa of desire on Pelion of coincidence, came the final audacity of their difference from the human kind. Always, there after, they referred to it in vague phrases. Always, thereafter, they referred to it with averted faces. Of all their confessions, this was the one they would have dreaded most to confide to a carping and apathetic world. And yet, both had acknowledged—and in compromising black and white—that they yearned to undergo every human experience—yes, every one— before they died.

“I am not sure of any previous life,” wrote Augusta. “I cannot be sure of any future one. Let me drink this life to its very dregs.”

“I know I have lived before,” wrote Phoebe. “I know that I shall live again. And yet because I cannot recall the one or anticipate the other, I want to know every experience that this existence has to offer.”

The two girls became inseparable. The gloom which accompanies a resignation to the inevitable reigned over the Martin household, for with prompt unanimity the family took a violent dislike to Augusta.

“She makes me crawl,” Mrs. Martin said more than once to Mr. Martin; or, “І declare I feel witchy when that girl's about”; and, “My stars, Edward, did you ever see one girl boss another as Augusta bosses Phoebe?”

“Yes,” Mr. Martin agreed, “on the whole she's worse than Phoebe. For, as far as I can figure, Phoebe is suffering nothing worse than a secret sorrow gnawing at her heart, whereas Gussie is a misunderstood genius.”

“Now don't you admire her, Ern Martin?” Phoebe short-sightedly crowed over her brother, after one interminable evening during which Phoebe had quoted thrice from Heine and had corrected two errors in judgment on the part of her hosts.

“Sure do I!” Ernest responded with the first conscious sarcasm of his existence. “І simply adore Gussie. I've named my new punching-bag after her.”

Even the happy-go-lucky Tug, Phoebe's adorer and slave, drew a firm line at Augusta. Phoebe tried to browbeat him into letting Augusta accompany them in the automobile.

“Sorry, Phoebe,” he answered with smiling obstinacy, “but I can't stand for Gussie. I'd feel as if I had a toad in the tonneau.”

The family opposition only set Phoebe the closer in her love and pity for her friend. But despite this championship, the forces that make and break human companionship were already prying the intimacy apart. It is written in the Book of Truth that every human emotion can be pooled, with the effect of an immediate inflation, except melancholy. But a sorrow shared is a burden divided. And youth, which clings longest and fondest to its tragedies, admits alleviation but grudgingly. It is an exquisite experience to stand solitary in a misunderstanding universe. But who would elect to be misunderstood in couples? Alas for Phoebe! Alas for Augusta! Never again could either honestly claim the distinction of difference. But for a while neither would admit this: it was neck and neck as to which, in impassioned and blotted lubrications, could prove the bitterer fate. And since, when emulation enters, friendship droops a little, the intimacy began to slacken all along the line.

An event in school precipitated the break.

About the middle of the second term, Mr. Wilbur, the head of the English department, made announcement, that, although the wishes of the class could not be final, the teachers would like from it an expression of opinion to guide them in their choice of a valedictorian. Would each member of the class put the name of his candidate on a slip of paper?

Before school closed that day, Mr. Wilbur made a second announcement. The choice of the class for valedictorian had coincided with that of the teachers. On the side of the teachers, there had been no difference in opinion. On the side of the class, there had been but two dissenting votes. Miss Phoebe Martin (amidst applause) was officially notified of her election.

That afternoon when Phoebe walked home, linked as usual to Augusta, Molly Tate approached.

“Say, Augusta,” Molly began, the offhand quality of her manner contradicted by the indignant lightnings of her straight-gazing blue eyes, “why didn't you vote for Phoebe for valedictorian? She voted for you. I counted the votes, and of course I recognized your handwritings. I should have thought, Augusta, you'd have been the first to vote for Phoebe. You know perfectly well that nobody in the class has ever wanted anybody else.”

Involuntarily, Augusta dropped Phoebe's arm. For the only time in her life, Phoebe saw Augusta embarrassed.

“Well, of course, I knew Phoebe would get it,” Augusta managed at last. “I just voted for Tug because I thought somebody else ought to be represented.”

Molly sniffed and, with a definite appearance of flaunting her tactfulness, changed the subject, dropped from the conversation and the group. Phoebe said nothing. She and Augusta talked—though unlinked—as if the disturbing little incident had not occurred. Of course Augusta had a right to vote for anybody. Phoebe decided loyally that there was even a kind of magnificent courage about her procedure—and yet

Augusta was not waiting for her when they came out of school the next day; and, thereafter, it was as if the intimacy had never been. Coincidently, Phoebe's diary fell away to a mere daily trickle. Also by this time, Phoebe was closeting herself tri-weekly with Mr. Wilbur for a discussion of the valedictory. Mrs. Martin noted all these symptoms hopefully.

It was Mr. Wilbur's idea that the Maywood High School should produce something original that year—something, say, which combined literary essay and valedictory in one. He had asked Phoebe to choose her own subject. After long nights of study and longer days of thought, she decided in favor of “Byron, Shelley and Keats.”

Of Mr. Wilbur, Phoebe's diary said, “His figure has acquired the scholar's stoop from too much burning of the midnight oil.” Clean-shaven, silver-haired, there dwelt permanently among the wrinkles of his middle-age an expression, disquietingly sardonic. There dwelt intermittently there a smile of surprising winsomeness. Every girl in the Maywood High School adored him frantically, although she trembled like a leaf when his crisp enunciation of her name made her, during two minutes of recitation, the target for his terrible wit.

“What is there about Miss Martin that interests you so much?” asked Miss Selby, his first assistant. “It seems to me that there are ever so many girls in the class who write as well as she. In fact, Augusta Pugh writes much better.”

“True,” Mr. Wilbur agreed, his smile at its most whimsical. “Miss Pugh is beyond a doubt the ablest girl in the class—little beast that she is! But nobody who has any sense of humor could write a good valedictory. Now Miss Pugh has the rudiments to a sense of humor, but Miss Martin hasn't enough to put on the end of a pin. I wouldn't miss the valedictory that Phoebe will write for untold millions.”

Miss Selby's middle-aged eyes blinked. A something rigorously unmodern in her dress made her look like a daguerreotype. A rumor, handed down from class to class in the M. H. S., explained that her fiancé died in the Civil War and she had been wearing out her trousseau ever since.

“Phoebe's very pretty,” she said, “pretty enough to make up for that sense of humor, even if it never appears.”

“Quite,” agreed Mr. Wilbur with alacrity. “I could find it in my heart to wish that it never would. But,” he shook his head, “women aren't like what they used to be. Phoebe is going to make a fine woman,” he added irrelevantly.

As for Phoebe—if, before, she had assumed the air of one congenitally at odds with the world, now she had definitely acquired the saintly mildness of the cloistered nun. What of her time was not devoted to work on her valedictory was spent in its sepulchral rehearsal. The male portion of the Martin community took her absorption lightly. When, occasionally, she favored them with her presence, Phoebe-baiting became a recognized parlor-game.

“It is extremely interesting in the study of literature,” Ernest would remark apropos of nothing, “to note the great dissimilarity existing between writers of the same age.”

“June has come with its riot of rhythms and roses,” Tug would take it up.

And, “as the emigrant stands upon the proud ship,” Mr. Martin was sometimes base enough to add.

Thereupon, Phoebe would arise with great dignity and retire to her chamber.

“Be sure you don't say, 'Byron, Kelly and Sheets,'” Ernest always called after her.

“Or 'Chyron, Helly and Beets,'” Tug added.

They never knew that, though Phoebe stood their joking with outward composure, the thought that she might say “Byron, Kelly and Sheets” or—worse—“Chyron, Helly and Beets” haunted her very dreams.

But Mrs. Martin, in contradistinction to the male half of her family, was sounding these days the very depths of irritation. “Did you ever see anything like her?” she demanded again and again of Mr. Martin. “If this keeps up,” she threatened stormily more than once, “I'll take her to Dr. Bush and make him give her a tonic. There is really no living with her. Will graduation ever come?”

Phoebe's great day, in point of fact, actually came at last. It was a graduation differing in no wise from every other graduation. The big hall of the Maywood High School was decorated with bunting and June blossoms. The wide, roomy platform was banked so closely with girls and flowers that it looked as if it had grown both. The audience swelled the hall to the bursting-point—fussy, delighted, triumphant mothers, bored, indulgent, deprecatory fathers, superior big sisters, critical big brothers, awed little sisters and squirming little brothers, crowds of attentive grandmothers, cousins and aunts. At the back, a fringe of young men who had not quite left off being boys and groups of boys who were just deciding to become young men, swarms of ridiculing undergraduates and multitudes of irreverent small fry shook the walls with undiscriminating applause every time the opportunity tempted.

Mrs. Martin, Mr. Martin and Ernest came early, and found seats in a front row near the end. To the right, stout Mrs. Warburton, the mother of the class-historian, leaned over to bow beamingly to the mother of the valedictorian. Somewhere back, Dr. Bush's spectacles gleamed from a swirl of femininity.

The program was a replica, with a difference in detail, of every graduation that the country has ever produced. A salutatorian welcomed the audience to the hallowed precincts which she herself was about to leave forever in language that, chaste and periodic as it was, could leave her hearers in no doubt as to the personal pleasure the occasion afforded her. Tug Warburton—he was received with such thunderous and prolonged applause that he had finally to frown his followers to silence—prophesied fame and fortune for every member of his class. At the blackboard, a pair of youthful scientists demonstrated with diagrams of the clearest and utterance of the thickest an utterly ungraspable problem in physics. A puny youth whose voice threatened to shatter the window-panes considered “Napoleon's Last Days at St. Helena,” and a girl who stood six feet lisped in whispers her impassioned answer to the query, “Shall Women Vote?” Then came daily themes written and read by Augusta Pugh. Then, to the visible and audible relief of the audience, came the class song, composed by Molly Tate. Then came the valedictory.

Mrs. Martin had become so accustomed to the Phoebe of the last six months that she started when she recognized the Phoebe of other days—a Phoebe from whose air all the disdain, the cocksureness, the mental superiority had evaporated completely—a Phoebe, moreover, of smoky-gray, shy eyes, a softly curved, wistful mouth and curls that seemed to twine about the yellow rose over her ear in wispy tangles of real gold—a Phoebe who seemed, because of her delicate, sheer white gown, more than ever before slim and girlish, tenderly young and helpless.

“It is extremely interesting in the study of literature,” began Phoebe; and Mrs. Martin's heart commenced to pound.

For Phoebe's voice was low and uncertain. Phoebe's breath came in great, gaspy catches. Phoebe's hands shook so violently that her stiff valedictory paper crackled, its yellow ribbons waved.

She approached the passage, “June has come with its riot of rhythms and roses,” but only the more distressingly her breath fluttered and caught. Mrs. Martin turned cold. She did not know that Ernest, sitting on the other side of his father, was shaking in his shoes for fear that his sister would say, “Byron, Kelly and Sheets.” She did not know that Tug, sitting on the platform, was tense with terror for fear that Phoebe would say, “Сhуron, Helly and Beets.” But Phoebe sailed past her Scylla. She rounded her Charybdis. Though she faltered, she continued not to fail.

“As the emigrant stands on the proud ship,” perorated Phoebe and, in her voice, Mrs. Martin felt the relief of one who sees the end of long strain in sight.

And then a strange thing happened.

Phoebe's valedictory was composed entirely of trite and timeworn phrases. But to Mrs. Martin every one of them brought as vivid a truth as their creation must have carried. It came over her with a suffocating sense of sorrow that what her child was saying was symbolically true. It was true that Phoebe was about to face “the real conflict of life.” It was true that she must, thereafter, “put the little things of her youth aside.” It was true that, before her, lay “the beginning of adult responsibility.” Mrs. Martin was stabbed by that conviction, terrible always for women to face, that things would never again be as they had been. The tears flooded to Mrs. Martin's eyes. They began to pour down her cheeks, to soak into the lace of her bodice.

Mr. Martin alone caught the situation. Without looking at his wife, without speaking, he manœuvered his big body so that it interposed between her and the gaze of assembled Maywood—even Ernest did not guess. Mr. Martin's hand stole down to his side and seized his wife's hand.

Flurried to the end, Phoebe managed to finish. There followed the distribution of the diplomas. But Mrs. Martin's emotion seemed to increase rather than diminish. Not even the unparalleled roar of applause that came to Phoebe with her sheepskin seemed to ameliorate it. As the class filed off the platform, Mrs. Martin arose, pushed blindly through the dispersing throng, pushed blindly through the crowds of graduates and their congratulators, caught up with her daughter and gestured her into the hall. She drew Phoebe into an empty recitation-room.

“Why, mother,” Phoebe exclaimed alarm, “what is the matter?”

“My poor little girl,” Mrs. Martin said, “I'm sorry if I've been unfeeling and unsympathetic this last year. It's only because I didn't realize what it all meant to you, giving up these happy years. I didn't understand until I heard you read your valedictory. Do forgive me, Phoebe, child, won't you?”

“Forgive you?” Phoebe repeated with a gasp. “Mother Martin, you darling, if you cry another tear, you'll break my heart! Why—” She stopped abruptly and, with one of those honest self-accusals that made Phoebe Phoebe, she added, smiling, “Why, mother, it's the truth. I've enjoyed being unhappy this year. Didn't you when you were a girl?”

title: Phoebe and Her Other Self


text: Talk:Phoebe and Her Other Self

title: Talk:Phoebe and Her Other Self


text: Talk:Ernest and the Latch Key Question

title: Talk:Ernest and the Latch Key Question