38

1842.-Campbell v. Scott.

Then it is said that there is no animus furandi: but if A. takes the property of B., the animus furandi is inferred from the act. Here there is a very distinct taking, and, in my opinion, it has been done in a manner which the law will not permit.

pages

of a treatise Roworth v. Wilkes was a case in which 75 consisting of 118 pages, were taken and inserted in a [*39] very voluminous work, The Encyclopædia *Londinensis ; and, although the matter taken formed but a very small proportion of the work into which it was introduced, the jury found for the plaintiff, who was the author of the treatise.

I do not think that it is necessary for me to consider whether the selections in this case are the very cream and essence of all that Mr. Campbell ever wrote; but it is pretty plain that they would not have been inserted in the defendants' work, unless the

of piracy often depends upon a nice balance of the comparative use made in one, of the materials of the other; the nature, extent and value of the materials used; the object of each work and the degree to which each writer may be fairly presumed to have resorted to the same common source of information, or to have exercised the same common diligence in the selection and arrangement of the materials. The question of infringement or not, does not depend upon the quantity taken, for, as Lord Cottenham has justly observed "where it comes to a question of quantity, it must be very vague; one writer might take all the vital parts of another's work, though it might be but a small portion of the book in quantity. It is not only It is useless to refer to any particular quantity, but value, that is always looked to. cases, as to quantity." Bramwell v. Halcomb, 3 Mylne & Craig 737, 738. Saunders Mr. Justice Story has said: "patents v. Smith, 3 Mylne & Craig R. 711, 736, 737. and copyrights approach nearer than any other class of cases belonging to forensic discussion, to what may be called the metaphysics of the law, where the distinctions are, or at least, may be very subtle and refined, and sometimes almost evanescent. In some cases, what constitutes an infringement of a patented invention, is sufficiently clear and obvious, and stands upon broad and general agreement and differences; but in other cases, the lines approach very near to each other, and sometimes become almost evanescent, or melt into each other." Folsom v. Marsh 2 Story R. 105, 106. In cases of copyright in some cases a considerable portion of the materials of the original work may be included or so fused into another work, as to be undistinguishable in the sense of the latter, which has other professed and obvious objects, and cannot be fairly treated as a piracy, or they may be inserted as a sort of distinct and Mosaic work, into the general texture of the second work, and constitute the peculiar excellence thereof, which would be a clear piracy. Folsom v. Marsh, 2 Story R. 116.

1842.-Campbell v. Scott.

party who selected them thought that they were very attractive in themselves. However, it so happens that, in turning over the pages of the defendants' publication, I find an extract from "The Pleasures of Hope," which is the only part of that poem of which I have a distinct recollection: and I have reason to suppose that is a very striking passage, because it has remained impressed upon my memory for so many years.

Then it is said that, with respect to three of the selected poems, the court ought not to interfere in the present case. I admit that they are not contained in Moxon's edition of the plaintiff's works, published in 1840; but nevertheless there is a general statement, in the bill, that the plaintiff composed them all. And I observe that Mr. Campbell is the sole plaintiff: the bill is not filed by him and Mr. Moxon, or by Mr. Moxon alone, but by Mr. Campbell solely: and I consider that his copyright in those three poems is entitled to protection equally with his copyright in the rest of the matters which unquestionably have been pirated from Moxon's edition and copied into the work complained of.

Then the only question is whether there has been such a damnum as will justify the party in applying to the *court; because injuria there clearly has been. What [*40] has been done is against the right of the plaintiff. Now,

in my opinion, he is the person best able to judge of that himself; and, if the court does clearly see that there has been anything done which tends to an injury, I cannot but think that the safest rule is to follow the legal right and grant the injunction.

It strikes me upon the whole, therefore, that I ought to grant the injunction in this case; and I will put Mr. Campbell, if the other side desire it, to bring such action as he may be advised.

Mr. K. Parker :-Your Honor will limit the time for bringing the action.

THE VICE-CHANCELLOR :-I shall do here as I have done in other cases: I shall grant the injunction giving the plaintiff

1840.-De Witte v. De Witte.

liberty to bring such action as he may be advised, to establish his legal title, and reserve the further consideration of the motion, and give both parties liberty to apply: then, if the action is not brought within due time, you can apply.

[*41]

1840 8th May.

*DE WITTE v. DE WITTE.

Tostator bequeathed his residue in trust for his daughter Sarah, and her children, independently of her husband, and her receipts alone, notwithstanding her coverture, to be, from time to time, a sufficient discharge. Held that the daughter and her children living at the testator's death, were entitled to the residue jointly.

J. CRUTCHLEY, by his will, after making several specific and pecuniary bequests, and, amongst them, a bequest to his daughter, Sarah De Witte, for her life, with remainder to her children, gave the residue of his personal estate to trustees, in trust to sell and dispose thereof, and to stand possessed of the proceeds in trust for the sole, exclusive and peculiar use and benefit of his said daughter, Sarah De Witte, and her children, independent of her husband, and her receipts alone, notwithstanding her coverture, to be, from time to time, a sufficient discharge.

The question was, whether Mrs. De Witte took the residue for her life, with remainder to her children, or whether she and her children took it jointly.

Mr. Goodeve, for the children, said that there were several instances, in the preceding part of the will, in which the testator had given express estates for life to Mrs. De Witte and his other daughters, with remainders to their respective children.

Mr. Bethell and Mr. Abraham, for Mrs. De Witte, relied on Morse v. Morse, (a) as governing the present case, and said that the interpretation contended for on behalf of the children, was

(a) Ante, Vol. II, p. 485.

1840.-Northam-Bridge and Road Co. v. London and Southampton Railway Co.

not a reasonable one, as it would exclude children born after the testator's death.

Mr. F. Bayley appeared for the executors.

THE VICE-CHANCELLOR:-I have looked through the whole of the will, in order to ascertain what the testator [*42] meant by the words which he has used in disposing of

his residuary estate; but there is no reason, apparent on the face of the instrument, why those words should not be taken in their plain and ordinary sense, and have their natural effect given to them.

Declare that Mrs. De Witte and her children living at the testator's death, are entitled to the testator's residuary estate, as joint-tenants, (the interest of Mrs. De Witte being for her separate use,) and that her receipts will be sufficient discharges for all moneys that shall be paid to her during the continuance of the joint-tenancy between her and any of her children.

THE NORTHAM-BRIDGE AND ROAD COMPANY v. THE LONDON AND SOUTHAMPTON RAILWAY COMPANY.

1840: 11th and 12th May.

Although a court of equity would have been satisfied if the opinion on a case, or the verdict on an issue directed by it, had been the reverse of what it is; yet it is not the duty of the court to direct another case or another issue, unless it sees that the opinion or the verdict is clearly wrong.

ON the hearing of a motion for an injunction in this case, one question was whether a road called The Northam-Bridge Road, which was crossed by the line of the London and Southampton Railway, was a turnpike road within the meaning of the act for making the railway. The Vice-Chancellor directed a case to be made for the opinion of the Barons of the Exchequer upon the question.

1840, Northam-Bridge and Road Co. v. London and Southampton Railway Co.

[*43]

*The case having been argued, the learned Barons certified in the affirmative.(a)

The motion for the injunction was now renewed. At the same time, the defendants, who were dissatisfied with the certificate, applied that a case might be made for the opinion of another court of law, upon the question.

Mr. Knight Bruce and Mr. Taylor, for the plaintiffs.

Mr. Sergeant Wilde, Mr. M. D. Hill, Mr. Jacob, and Mr. Jemmett, for the defendants.

THE VICE-CHANCELLOR :-A case was sent to the court of Exchequer, in which the question was, whether the Northam Bridge Road, was to be considered as coming within the words, "any turnpike-road," in the Southampton Railway Act. Now a road may be considered as a turnpike-road, either by reason of its being within the intent and meaning of the acts which regulate turnpike-roads in general, or by reason of its being a road upon which there is a turnpike, that is to say, some species of obstruction, to the public, in passing along the road unless they pay toll, which may be applicable, to some extent at least, to the sustentation of the road. It is quite clear, and, indeed, it was not contended that mere private roads, however obstructed, are within the meaning of the act.

The Barons of the Exchequer have certified to me their deliberate opinion that the road in question is a turnpike-road within the meaning of the act, and I am now asked not to accede to that certificate.

[*44]

*Where this court has either sent a case for the opinion of a court of law, or directed an issue to be tried by a jury, and a certificate has been returned, or a verdict found, it may easily happen that this court would have been satisfied, if the reverse had been certified in the one case, or found in the other. But I apprehend that it is not a reason for quarrelling with either a certificate or a verdict, merely because the reverse

(a) Sce 6 Moes. & Wels. 428.