a good answer to the count to which it is pleaded, and that the defendant is entitled to judgment on the demurrer thereto.

Judgment for the plaintiff on the demurrer to the second count, and for the defendant on the demurrer to the second plea.

*LOVER v. DAVIDSON. Nov. 6.

[*182

One who adapts words of his own to an old air, adding thereto a prelude and accompaniment also his own, acquires a copyright in the combination, and may, in declaring for an infringement against one who has pirated the whole, properly describe himself as the proprietor of the entire composition.

A., being in New York, and wishing to publish a song there and in London simultaneously, entered into some agreement for an assignment of the American copyright to a publisher in New York:-Held, that a receipt for the purchase-money was no evidence of the assignment: and, held, that the date on the title-page (as required by the American law) was not conclusive evidence of the time of publication in New York.

The author and proprietor of copyright in a song, in the entry at Stationers Hall described his place of abode as "65, Oxford Street," he being in America at the time of publication, and having no place of abode in England, but “65, Oxford Street," being the address of his publishers-Held, a sufficient description to satisfy the 5 & 6 Vict. c. 45, s. 13.

THIS was an action brought by the plaintiff against the defendant for pirating the words and music of a song called "The Low Back'd Car," of which the plaintiff claimed to be entitled to the copyright as author. The cause was tried before Willes, J., at the sittings in Middlesex after the last term. The facts were as follows:

"The Low Back'd Car,"-the words, the prelude, and the accompaniment being entirely written and composed by the plaintiff, but the air being an old one, known by the name of "The Jolly Ploughboy," was first published in this country on the 7th of December, 1846, and was entered in the book at Stationers' Hall as of that date, the persons described as the proprietors of the copyright being "Duff & Hodgson, 65 Oxford Street." This entry, however, was amended pursuant to an order of Jervis, C. J., of the 15th of March, 1855, by striking out the names of "Duff & Hodgson," and inserting in lieu thereof the name of "Samuel Lover," leaving the entry in all other respects as it was.(a) It appeared, that, when the original entry was made, the plaintiff was residing at New York, having no place of abode in England; and that, prior to the publication of the song in question in England, the plaintiff had sold *the copyright,—so far as con[*183 cerned America,-to persons of the name of Firth & Hall, music publishers at New York: but the only evidence of this transaction was, the production by the defendant of a receipt for the purchase money bearing the signature of the plaintiff; the reception of which was objected to on his behalf.

For the defendant it was attempted to be shown that there had been (a) See Ex parte Davidson, 18 C. B. 297 (E. C. L. R. vol. 86).

a prior publication of The Low Back'd Car in New York; and, for this purpose, the defendant produced a copy of the song, which had been purchased at the shop of Firth & Hall, in New York, and which purported on the face of it (a) to have been published on the 4th of December, 1846, three days before the date of the entry and publication in England. But it turned out that the actual day of publication in New York, was, on or after the 7th of December, 1847, the date on the piece of music produced being satisfactorily shown to be a mistake.

On the part of the defendant, it was insisted, that, to entitle him to maintain the action, the plaintiff must show that he was the author of the whole piece, including the air; that there had been no sufficient entry at Stationers Hall, the author's true place of abode not being stated; and that the sale of the American copyright operated an extinction of the plaintiff's claim, inasmuch as there could be no partial assignment of copyright.

The learned judge, reserving leave to the defendant to move to enter a verdict for him, directed the jury to find for the plaintiff, which they accordingly did, with 408. damages.

Bovill now moved to enter a verdict for the defendant, *pur*184] suant to the leave.-1. There is nothing in the copyright act, 5 & 6 Vict. c. 45, to give the exclusive right of publication to any one except the author of the work, that is, the whole work,-or to his assignee. Here, the plaintiff was confessedly not the author of the air. [CRESSWELL, J.-What did the defendant pirate?] The whole. [CRESSWELL, J.-I cannot say, as a matter of law, that a jury might not be justified in finding that, the publication was new.] There certainly is a case in this court,-Leader v. Purday, 7 C. B. 4 (E. C. L. R. vol. 62),—where it was held that one who adapts words to an old air, and procures a friend to compose an accompaniment thereto, acquires a copyright in both words and accompaniment; and his assignee, in declaring for an infringement, may describe himself as the proprietor of the copyright in the whole composition. 2. It appeared, that, prior to the publication of this song in England, the plaintiff had sold the copyright to Messrs. Firth & Hall, of New York. By the law of this country, it seems pretty clear that there cannot be a partial assignment of copyright. In Jefferys v. Boosey, 4 House of Lords Cases, 815, 992, Lord St. Leonards says:(b) "If there is one thing which I should be inclined to represent to your Lordships as being more clear than any other, in this case, it is, that copyright is one and indivisible. I am not speaking of the right to license: but copyright is one and indivisible; or, is a right which may be transferred, but which cannot be divided. Nothing could be more absurd or inconvenient

(a) The American law requiring the date of the first publication to appear.

(a) And Jervis, C. J., in Shepherd v. Conquest, 17 C. B. 437 (E. C. L. R. vol. 84), states that in this many of the judges concurred with the noble lord.

than that this abstract right should be divided, as if it were real property, into lots, and that one lot should be sold to one man, and another lot to a different man. It is impossible to tell what the You might have a separate transfer

*inconvenience would be.

[*185 of the right of publication in every county in the kingdom. If, however, the right, as I am advising your Lordships, is properly one and indivisible, then let us see what construction can be put upon the assignment from Ricordi to Boosey. The exercise of the right is confined in the assignment to the United Kingdom. Now, by the 41 G. 3, c. 107, copyright is extended to any part of the British dominions in Europe; and, by the 54 Geo. 3, c. 156, it was further extended to every part of the British dominions. It is quite clear, therefore, that, if in this case there was a copyright, under the law of this country it was a copyright which extended to every portion of the British dominions. Then, as Ricordi limited his assignment to the United Kingdom, and therefore reserved to himself the right as regarded the publication in every other part of the British dominions, even considering the right in England, if I may so call it, as being capable of being secured from any foreign right, it would consequently be a partial assignment; and, as a partial assignment, I should venture to recommend your Lordships to decide that it was wholly void, and therefore gave no right at all.” [WILLES, J.-Upon this point the whole foundation of your argument fails, there being no evidence of an assignment to Firth & Hall.] The receipt was some evidence. [WILLES, J.-None whatever.] 3. The entry at Stationers Hall was not a compliance with the statute. By the 13th section of the 5 & 6 Vict. c. 45, the entry is to contain the title of the book, &c., the time of the first publication thereof, the name and place of abode of the publisher thereof, and the name and place of abode of the proprietor of the copyright: and s. 24 enacts that no proprietor of copyright in any book which shall be first published after the passing of this act, shall maintain any action or suit at law or in equity, or any summary proceeding, in respect of any *infringe- [*186

ment of such copyright, unless he shall, before commencing such action, suit, or proceeding, have caused an entry to be made in the book of registry of the Stationers Company, of such book, pursuant to this act," &c. Now, the plaintiff admitted that No. 65, Oxford Street, never was his place of abode. In fact, he was residing in New York at the time the entry was made.(a) The entry, therefore, clearly was no compliance with the act. [CRESSWELL, J.-Mr. Lover had at that time no other place of abode in England. He might, therefore, very properly describe himself as of a place where he might be communicated

(a) By the American law, it appears that the entry of copyright can only be made by a citizen of the United States, or by one who is permanently resident therein. See Curtis on Copyright (American), 141-144.

with.] If such a laxity of description be permitted, an important provision of the statute may at all times be easily evaded.

CRESSWELL, J.-I am of opinion that there is no ground for a rule in this case; and my reasons sufficiently appear from the observations thrown out during the argument.

The rest of the court concurring,

Rule refused.

*187]

*Ex parte ANNE TRENERY. Nov. 21.

The court refused to grant a rule to enable a married woman to execute a conveyance under the 3 & 4 W. 4, c. 74, s. 91, without the concurrence of her husband, upon an affidavit merely stating that the parties were living apart by mutual consent: but required an affidavit showing that an application had been made to the husband to execute the deed, and that he had refused to do so.

HAWKINS moved for a rule to enable Mrs. Anne Trenery, a married woman, who was living apart from her husband, by mutual consent, to convey (under the 3 & 4 W. 4, c. 74, s. 91) her interest in certain property to which she was separately entitled in her own right, without her husband's concurrence. [CRESSWELL, J.-Does your affidavit show that the husband has been asked to execute the deed, and has refused to do so?] It does not. [CRESSWELL, J.-Then you cannot have a rule. This court so decided in a case of In re Hester Murphy, 5 Scott, N. R. 166, S. C. nom. Ex parte Mirfin, 4 M. & G. 635 (E. C. L. R. vol. 43).]

Per Curiam.

Rule refused.(a)

(a) And see In re Sarah Woodcock, 1 C. B. 437 (E. C. L. R. vol. 50), In re Isabella Grierson Perrin, 14 C. B. 420 (E. C. L. R. vol. 78).

Where the husband is lunatic, of course, it is not necessary that the affidavit should show that he refuses to concur; but the affidavit must show that he is lunatic at the time of the application: Ex parte Thomas, 4 M. & Scott, 331 (E. C. L. R. vol. 43); In re Jane Turner, 3 C. B. 166 (E. C. L. R. vol. 54).

*188] *SARL and Another v. BOURDILLON.

Nov. 17.

The defendant went into the plaintiff's shop, and agreed to purchase certain goods in the aggregate exceeding the value of 101. The several articles, with their respective prices, were entered in the plaintiffs' "order book," on the fly-leaf at the beginning of which were written the names of the plaintiffs; and the defendant wrote his name at the foot of the entry, for the purpose of verifying the bargain :-Held a sufficient signature of the contract by both parties to satisfy the 17th section of the Statute of Frauds.

One of the articles was described as "candlestick, complete." It was proved, that, at the time the goods were selected, it was arranged that a "gallery" should be added to the top of the candlestick for the reception of a "mosquito-shade:"-Held, that the memorandum was sufficient, without mentioning the "gallery."

At the time of the contract, it was agreed that the goods should be paid for by a check on the defendant's brother :-Held, that the omission of that stipulation did not vitiate the memorandum.

THIS was an action for goods bargained and sold. Plea, never indebted.

The cause was tried before Willes, J., at the sittings in Middlesex after last Easter Term. The facts were as follows:-The defendant, who was about to proceed to India, went into the plaintiffs' shop for the purpose of purchasing certain goods. The goods were selected, amongst them being two chamber candlesticks to which galleries were to be fixed for the purpose of holding mosquito shades. In all other respects, all the articles were complete. A list of the goods purchased was entered in the plaintiffs' order-book, the chamber candlesticks being therein described as "candlesticks, complete." This book had the words "Order Book" printed in gold letters outside, and the names "Sarl & Son" written on the fly-leaf at the beginning. At the foot of the entry. in question appeared the name and address of the defendant, in his own handwriting, Capt. Bourdillon, 29, Inverness Terrace, Bayswater." It was part of the bargain, but not so stated in the above note of it, that the goods were to be paid for by a draft on the defendant's brother (not being a banker), at No. 14, Throgmorton Street.

166

On the part of the defendant, it was insisted that there was no sufficient note or memorandum in writing of the contract to satisfy the 17th section of the Statute of *Frauds,-first, because the vendors' [*189 names did not appear upon the contract,-secondly, because it did not contain all the terms of the bargain, no mention being made therein of the galleries which were to be added to the chamber ca...lesticks, or of the stipulated terms of payment.

For the plaintiffs it was insisted, that, taking the book, with the words printed on the outside, and the names of the plaintiffs written on the fly-leaf, and the signature of the defendant at the foot of the entry, there was a sufficient compliance with the statute.

The learned judge,-after putting two questions to the jury, viz. first, whether the order was written in the plaintiffs' book before the defendant wrote his name therein; secondly, whether the defendant so wrote his name in the book for the purpose of verifying the order; both of which questions were answered in the affirmative,―reserving leave to move to enter a verdict for the defendant, directed the jury to find for the plaintiffs for the amount claimed.

Byles, Serjt., in Trinity Term last, pursuant to the leave so reserved, moved to enter a verdict for the defendant, or a nonsuit. The 17th section of the 29 Car. 2, c. 3, enacts that no contract for the sale of any goods, wares, and merchandises, for the price(a) of 101. sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain or in, part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." To satisfy that section, the note or (a) See Harman v. Reeve, 18 C. B. 587 (E. C. L. R. vol. 86).

N. S., VOL. I.-10