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Vol. II.]

COLEMAN v. COMMONWEALTH.

[No. 9.

has annually reported the same to the legislature as a portion of the transactions of his office, without any intimation to him on the part of that body that he was usurping authority, or any amendment or repeal of the law under which he was acting.

We are of opinion therefore that the twenty-second section of chapter 42 of the Code of 1873, is not repealed, but is still in force; and that the same was properly referred to by the second auditor as an authority for his action in relation to the sinking fund. That section not only authorizes but requires the second auditor to keep an account of the transactions of the sinking fund with the treasury, and also to report the same to each session of the legislature. The warrant book aforesaid of the sinking fund is the only record kept of those transactions, and we are therefore further of opinion, as we have already said, that the book thus kept is a public record, is evidence per se of what it contains, and that there was no error in giving and refusing the instructions as set forth in the first bill of exceptions.

The

This disposes of the point saved in the third bill of exceptions also. counsel for the accused was arguing to the jury on a mistaken view of the meaning of the addition made by the court to the fourth instruction. The court, referring to the warrant book aforesaid, added to the fourth instruction as follows: "But such book is of itself evidence to be considered by the jury in connection with other evidence." The counsel was contending that the court meant to say that the book was before the jury like a letter, to be referred to by witnesses to refresh their memory, but that, standing alone, it was not evidence to prove the number of bonds for which warrants had issued. The court interrupted the counsel, and said to the jury that the warrant book was not like a letter, to be referred to only to refresh the memory of witnesses; but was admitted as evidence. per se of that which it contains; and to this opinion the accused excepted. We have already seen that the warrant book, in the opinion of this court, is a public record, and evidence of itself of what it contains; that the instruction as given was proper; and, of course, there was no error in correcting the counsel.

We have thus noticed and disposed of all the errors relied on by counsel, and are of opinion that there is no error in the record. The judgment of the hustings court must therefore be affirmed.

VOL. II.

26

Judgment affirmed.

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PROPRIETOR.. - EQUITY PRAC

WHAT CONSTITUTES INFRINGEMENT OF NOTES.

TICE IN COPYRIGHT CASES.

LAWRENCE v. DANA.

A gratuitously prepared for B certain notes to two editions of a book the copyright of which B owned. The notes were copyrighted by B; but it was agreed that in any subsequent editions of the book B would make no use of the notes prepared by A and copyrighted as aforesaid. B procured a subsequent edition of the book to be published with notes by C, which were alleged to infringe the notes of A. Upon suit by A, it was ruled that the publication of the edition with notes by C, the same being an infringement as charged, was a violation of A's rights in the premises.

Where literary matter is prepared gratuitously for another, and a copyright obtained by the person for whom the service has been performed, such copyright is valid, notwithstanding the absence of a written assignment by the person who prepared the

matter.

It is not necessary that in a second or subsequent edition of a book the notice of copyright prescribed by statute should specify the date of the original copyright, in addition to the date of the subsequent one.

What constitutes the infringement of a copyright in annotations or notes. The rule of comparison and coincidence of errors and citations expounded. Abridgment defined and distinguished.

Where the editor of a second or subsequent edition of an annotated work makes notes which may be separated and distinguished from those contained in the original, he is entitled to a copyright for them; but if they are so connected with the original that they cannot be separated, they infringe the original.

The proper equity practice in copyright cases is to refer them to a master for examination and report. The reference should be made even where the infringement has been established upon the hearing. An injunction should be granted without reference only where the infringement can be readily ascertained.

CLIFFORD, J. Complainant alleges in substance and effect that Catharine Wheaton, deceased, widow of the late Henry Wheaton, in the year 1853, then in full life, requested him to prepare a new edition of Wheaton's Elements of International Law, and that he, in pursuance of that request, prepared such notes for that purpose as seemed to him fit, and also an Appendix and Introductory Remarks, with a full and careful memoir of the life of the deceased author; that, so far as the edition contained matters not previously published in this country, it was duly copyrighted by the said Catharine as proprietor thereof; that the same was subsequently published by the firm of Little, Brown & Co., and that all the profits arising out of the contract with the publishers were enjoyed by the said Catharine, as the complainant intended they should be when he undertook to prepare the edition; that he afterward, in pursuance of a similar request from the same source, prepared other annotations of the same work, which were also copyrighted by the same person, and that they were published in 1863 by the same publishers; that he is advised and believes that the transactions as recited, in respect to those two edi

Vol. II.]

LAWRENCE v. Dana.

[No. 9.

tions, operated to convey to the said Catharine no other beneficial interest in the said annotations and additions to the work than the right to use the same in those editions; that in fact it was always understood and agreed by and between them that the beneficial interest in the same, except as aforesaid, belonged to the complainant, and that the copyrights were taken out and held in trust by the said Catharine in accordance with that understanding and agreement. Prior to that period the author, as the complainant alleges, had caused four several editions of the work to be published, two at Philadelphia, one at London, and one in 1848 at Leipzig, in two volumes, by F. A. Brockhaüs, in the French language; that in the edition of 1848 the author inserted and published, both in the text and notes, many new matters never before published by him in the English language; that the author died in 1848; that the French edition was reprinted by the said Brockhaus in 1853, and that the complainant in 1860 ascertained that the said Brockhaüs had published another edition of the work in French, without the knowledge or consent of the representatives of the author, and that he contemplated publishing further editions of the same without paying anything to those representatives for copyright; that in view of these circumstances, and at the request of the said Catharine, he commenced negotiations with the said Brockhaus upon the subject; and he alleges that the result was, that the parties came to an agreement that the complainant should revise and translate his annotations and adapt the same for a work to be sold in Europe, making such additions thereto as should render the work as complete as possible down. to the time of publication; that the representatives of the deceased author should give up all claim on the said Brockhaus in respect to the editions published and to be published; and that in consideration thereof the said Brockhaus agreed to pay to the said Catharine, if the complainant so directed, the sum of six thousand francs, together with the sum of four hundred and fifty dollars, to be paid to the complainant to defray in part the expenses to be incurred in preparing the translations; that the complainant, before the agreement was completed, stated to the said Catharine or her agent, Martha B. Wheaton, that he would do no more work on any book over which he did not possess exclusive control; that he would only undertake the work required of him in the proposed arrangement on the condition that the entire copyright should be assigned to him; that the said Catharine, manifesting a great desire to retain the legal title to the copyrights of the book, requested him to confer with Professor Parsons in her behalf, in order that some arrangement might be made which should substantially secure to the complainant what he desired, and be at the same time acceptable to the said Catharine; and the complainant alleges that he assented to that proposition, that he had one or more interviews with Mr. Parsons, and made an agreement with him as to the title to the copyrights and other matters, as expressed in the memorandum set forth in the bill of complaint, as follows:

MEMORANDUM. ·

"Mr. Lawrence will write to Mr. Brockhaus in terms to bring to Mrs. Wheaton the right to draw on Mr. Brockhaus at once for 6,000 francs. He will also endeavor to get from Mr. Brockhaüs as much as he can toward the actual expense of having the translation into French made here, and so much of that expense as he fails to get from

Vol. II.]

LAWRENCE v. Dana.

[No. 9.

Brockhaus Mrs. Wheaton will pay from the proceeds of the draft on Brockhaus. Mrs. Wheaton will, on the payment of her draft on Brockhaüs, agree formally to make no use of Mr. Lawrence's notes in a new edition without his written consent, and Mrs. Wheaton will give to Mr. Lawrence the right to make any use he wishes to of his own notes."

That the said Parsons, for the purpose of being more certain that the memorandum would be approved by the said Catharine, wrote on the same sheet of paper to the respondent, Martha B. Wheaton, that he and the complainant had come to a perfectly amicable result, as expressed generally in the memorandum, and suggested to her that she should make a copy of the same for herself, if the result was satisfactory; and the complainant also alleges that the said Martha afterward, in behalf of her mother and herself, and to signify their approval of the result, signed the said memorandum, and wrote the date," June 14, 1863," thereon, and caused the same to be delivered to the complainant. Additions were subsequently made to the agreement, and the terms of it were in some respects varied, as appears by the correspondence between the parties; but the complainant alleges that he is advised and believes that the amendments to the same do not vary any such parts of the same as relate to the copyrights in this country; and he also alleges that the consideration of the agreement of the said Brockhaus to pay said amount to the said Catharine was the promise of the complainant to furnish new and additional notes for the future editions of the work, as was well known and understood by the parties; that he, the complainant, wrote to said Brockhaus, as agreed; that the letter was approved by the other parties, and was by the said Martha and Catharine sent to the said Brockhaus, and that the said Catharine, on the 17th of June, 1863, drew a bill of exchange on him for the amount specified in the memorandum; and that the same, in consequence of said letter and of the promises and undertakings of the complainant, was duly honored and paid.

The theory of the complainant is, and he accordingly alleges, that there was not, on the first day of January, 1865, any valid subsisting copyrights of the editions published, respectively, in 1836 and 1846; that the copyrights of the editions published in 1855 and 1863 secured the exclusive right to the same only so far as those editions differed from the aforesaid antecedent editions; that it was a part of the agreement made through the agency of the said Parsons, that the said Catharine should execute and deliver to the complainant a formal instrument, securing to him all his rights in the premises, of such a nature as to admit of being recorded, as required by the acts of Congress relating to copyrights; and he avers that the other respondents had full notice and knowledge of the agreement, and that he, in a court of equity, by virtue of that agreement, is taken and deemed to be the owner and proprietor of the last mentioned copyrights, in and as to all matters contributed by him as aforesaid; and that, by reason thereof, the respondents are bound not to make any use of any such matters so contributed by him to either of the said editions. of the said work. Based upon these and other allegations, as more fully set forth in the record, the claim of the complainant is, that he is in equity the exclusive owner and proprietor of the copyrights for all the matters which he contributed to those two editions; and he charges that

Vol. II.]

LAWRENCE v. Dana.

[No. 9.

the said firm of Little, Brown & Co. procured and induced the said Martha, in her own behalf and that of her mother, to consent and agree that the said publishing firm of Little, Brown & Co. should publish an edition of that work, and procure the same to be edited, and notes to be prepared for the same by some person other than the complainant; that thereupon the said firm procured and employed Richard H. Dana, Jr., one of the respondents, to edit the proposed edition, and to prepare the notes as aforesaid; and the complainant further shows that the respondents, without his consent, have caused the proposed edition to be printed, published, and publicly sold. Reference is also made to certain alleged pretences set up by the respondents; and the complainant prays for an account and for an injunction, and that the respondents may be decreed to surrender and deliver up all copies of the book on hand, and to make and deliver to the complainant a good and sufficient deed of the copyrights of 1855 and 1863, in accordance with his equitable title.

Questions of intrinsic importance and of great difficulty are presented for decision in respect to the title of the complainant, and as they are in their nature preliminary, they will be first considered. Briefly stated, his claim of title, considered broadly, is to the additions to and emendations of the text of two editions as published under his supervision, to the memoir of the author as contained in those editions, to the annotations prepared by him and published in those editions, and to the arrangement of the same, and the mode in which they are therein combined and connected with the text, and to the indices as published in those editions. He rests his claims upon the following grounds, as substantially stated in the bill of complaint: First, upon a contract or agreement between Catharine Wheaton and himself, that she should make no use of his notes aforesaid in any new edition of the work without his written consent; and that she would convey to him, by a formal instrument, the right to make any use he might see fit to make of his own notes. Secondly, upon the ground that, in the consideration of a court of equity, he is taken and deemed to be the owner and proprietor of the copyrights in and as to all the matters contributed by him and published in those two editions. Evidently both claims, as presented, have respect to the agreement as expressed in the memorandum of June 14, 1863, and the subsequent correspondence upon that subject, as the first is founded in covenant or contract, and the second in an equitable title to the copyright, as derived from the original arrangement and by virtue of the agreement expressed in that written paper. Confirmation of that proposition is not needed, as the language employed in the stating part of the bill of complaint is too plain for controversy; but if it were not so every vestige of ambiguity is removed by the principal prayers of the bill of complaint, which are for an injunction and an account, and for a good and sufficient deed conveying the legal title to the copyrights.

The respondents contend that the complainant is not entitled to any relief for several reasons.

1. Because the memorandum, as they contend, is not a perfected contract, but merely a note or memorandum of the stipulations of a proposed agreement as to the true understanding and definite terms of which the parties never actually agreed, and on which their minds never in fact met

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