mission, and that he had lately taken a room within a few doors of Miss Kelly's Theatre, at which he was in the habit of performing and singing the said compositions, at prices of admission much below those charged by the plaintiff. The bill in this case set forth the whole of the words of all the songs which the plaintiff contended were an infringement of his right, and the affidavit. also set out all the words of the same songs. Mr. Stuart and Mr. Chandless appeared for the defendant in support of a motion to dissolve that injunction, and stated the affidavit of the defendant, in which he denied that the plaintiff had the sole right of performing and singing the songs already mentioned; that he, the defendant, had sung many of these songs at New York, and that the plaintiff had been present at such concert, and had publicly applauded him in some of them. The defendant also stated that he had never sung any of the songs composed by the plaintiff, without varying the music from that published by the plaintiff. He also stated that the air or melody of the song called 'The Maniac,' was not composed by the plaintiff, but was an adaptation of a piece of music composed by Auber, being a chorus of carboniers in the second act of the opera called 'Fra Diavolo.' That the song called 'I'm afloat,' was an adaptation of the music of a song called 'Beautiful Rhine,' a Swiss air introduced from abroad; that the melody to the song called Man the Life-boat,' was an adaptation of a waltz composed by Strauss, a German; and that the music to the song called 'The Ship on Fire,' alleged by the plaintiff to have been composed by him, contained eight consecutive bars of the air of a song called 'When the Morning first dawns,' from Rooke's opera of 'Amilie ;' and he further stated, that " he believed the plaintiff was not the composer of the music of any of the songs mentioned in the bill." The defendant then set forth that he had purchased copies of all the songs in the bill. mentioned, with the music thereof, from the plaintiff's publishers, and that "he verily believed the songs of the plaintiff had chiefly derived their popularity through his having sung them in public." It was contended, for the defendant, that it was open to all the world to sing in public the songs said to have been composed by the plaintiff'; that such musical compositions were not protected by any act of parliament; that the words of the act, 3 & 4 Will. 4. c. 15. gave an exclusive right to recite "at any. place or places of public amusement." The subsequent act of 5 & 6 Vict. c. 45. did not extend or enlarge the protection already granted by the previous act, for there the words "at any place of public amusement" were omitted. [The VICE CHANCELLOR said, as regarded these words, it appeared to him, that whether such was the intention of the legislature or not, it was clear that the act of 5 & 6 Vict. c. 45. had given greater protection to musical compositions, by omitting the words "at any place of public amusement," than was given to any other species of copyright; the legislature had disincumbered themselves of these words, and restricted the performance at any place.] It was then contended, that whether musical compositions were included in the act or not, still the songs claimed by the plaintiff could not be protected, since they were not original. It was further sworn by the defendant's witnesses, that the songs had been purchased at the publishers, who had stated that any person was at liberty to sing them in public. Indeed, it was usually considered an advantage to a composer to have his songs performed in public; and if this injunction were allowed to stand, any person might be prevented from singing a song at any place, even at private parties, without the permission of the composer. Mr. Bethell and Mr. Mee Mathew, in support of the injunction, contended, that the plaintiff ought to be protected in the copyright of these songs. He had originally derived his right to the words from Mr. Mackay; after which he set them to music which he had himself composed; the words and music together forming a song, which was the production of the plaintiff's understanding, fancy, and genius; he then performed them in public; and the defendant conceived the idea of following the plaintiff from place to place to sing his compositions. The last place he had chosen was a room only three or four doors from the theatre in which the plaintiff held his performances, and, by charging less than the plaintiff, he had seriously detracted from his profits. It was very clear that the plaintiff had the exclusive right to perform his own songs. The Dramatic Performance Act of 3 & 4 Will. 4. c. 15. gave the exclusive right to the performance of dramatic compositions for a certain period, at any place of public amusement; and by 5 & 6 Vict. c. 45. that protection was extended to the performance of musical compositions. A man might compose, and afterwards publish to the world a piece of music, but still he might retain to himself the exclusive right of publicly performing it. It was alleged by the defendant that these songs were not the original compositions of the plaintiff, and that three of them were taken from melodies found in the compositions of other authors: these were 'The Ship on Fire,' The Maniac,' and 'Man the Lifeboat.' The defendant had alleged that the 'Ship on Fire' was not original, because eight consecutive bars were said to be taken from an air in the opera of 'Amilie.' But this fact did not affect the originality of the song; The Ship on Fire' consisted of no less than eleven pages of music, with a variety of different melodies in it. The whole formed a scene in a dramatic style; there was a pathetic story worked up in a very effective manner. It contained portions of recitative, and an accompaniment very laboriously constructed, and yet the defendant stated that it was not original, because eight bars were introduced from another composer. As regarded the other two songs there was certainly a positive statement that the melodies were taken from compositions by other persons, and that did not appear to be denied by the affidavits of the plaintiff; but it was not stated how much or what parts of these songs were not original, and therefore the injunction ought to stand for the purpose of protecting all the songs claimed by the plaintiff. Mr. Stuart, in reply. The VICE CHANCELLOR said, he had no doubt that musical compositions, such as those of the plaintiff, were intended to be protected by the act of 5 & 6 Vict. c. 45, and that the words of songs came under the Copyright Acts, and the music under the statute of Victoria. It had been said by the counsel for the defendant, that this was a frivolous subject for an injunction; but if a profit could be obtained by any gentleman in singing a certain set of songs composed by himself, he could not see why that profit should not be protected by a court of equity. It appeared, however, upon the affidavits filed by the defendant, that the songs called 'Man the Life-boat,' and 'The Maniac,' were not original compositions by Mr. Russell. This statement was not contradicted by the plaintiff, and consequently it followed that these two songs could not be protected. He should therefore dissolve the injunction in respect of those two songs, the originality of which was denied. The defendant had stated that the song called 'The Ship on Fire' was not original, because eight consecutive bars were taken from a song composed by Rooke; but it appeared that eight bars constituted a very small portion of eleven pages of music; therefore he should continue the injunction as to that song, and he should continue it as to the other songs. The plaintiff must be directed in the usual way to bring his action at law against the defendant. Mr. Swanston and Mr. Bayley appeared in support of a motion, that the certificate of the Master, approving of a commission for the examination of witnesses, should be discharged or taken off the file, and that the order made on the certificate should be discharged. Mr. Russell and Mr. Chandless took a preliminary objection to the motion, on the ground that the proper course to be taken was to except to the Master's certificate, and that it was irregular to move that the certificate should be taken off the file. The following authorities were cited: That the motion was in the right form, Chaffen v. Wills, 1 Dick. 377, and a manuscript book of Mr. Dickens. Jones v. Powell, 1 Sim. 387. Kemp v. Wade, 2 Keen, 686. Paxton v. Douglas, 16 Ves. 239–244. Mortgage Accounts-Rents and Profits. By the decree, made in a suit to redeem a mortgage, the Master was directed to take an account of what was due to the defendant (the mortgagee), and also of the rents and profits received by him. The father of the mortgagee had, for several years before his death, been in possession of the mortgaged estate :-Held, that, under the terms of the decree, the Master ought to calculate the amount due to the defendant without deducting any of the rents and profits received by the mortgagee's father. The bill in this cause was filed on the 9th of May 1838, to redeem a mortgage, executed in December 1767, by the great grandfather of the plaintiff; and by the decree, made on the hearing of the cause on the 19th of November 1841, it was referred to the Master to take an account of what was due to the defendant on the mortgage in the pleadings mentioned, and also of the rents and profits received by him or by any person by his order or for his use, or which, without his wilful default or neglect, might have been received; and it was ordered, that what should be found due on the said account of rents and profits, should be applied, in the first place, in payment of the interest, and then in sinking the principal, in respect of the said mortgage, and that, upon payment of what should be found due, the plaintiff should be at liberty to redeem, and in default of payment, should be foreclosed. In pursuance of this decree, the Master made his report, dated the 30th of May 1844, whereby he certified, that, in March 1781, John Roby the elder, the father of the defendant, entered into possession of the mortgaged premises, and into the receipt of the rents and profits, and continued in such possession, and in the receipt of the rents and profits thereof, until the time of his death, which happened on the 25th of February 1817, when the defendant was admitted tenant, and permitted his mother to continue in the occupation of the mortgaged premises until her death, which took place on the 31st of May 1822, since which time the defendant had been in possession and in receipt of the rents and profits thereof. The Master also found that the defendant had been in the occupation of part of the mortgaged premises, and that such part was worth, to let to a tenant, the yearly rent of 71. And he submitted, that the defendant should be charged with 1367. 10s., as an occupation rent for such part, from Michaelmas 1824 to Lady-day then last. He further certified, that he had not taken any account of the rents and profits of the mortgaged premises received by Roby the elder, by reason of the decree not containing any direction for the purpose, and that there had come to the hands of the defendant, in respect of such rents and profits, divers sums, amounting to 627. 10s., with which he had charged him; and that Roby the elder having, during his life, paid and disbursed, in respect of the mortgaged premises, several sums, amounting to 12l. 4s. 1d., there remained, after deducting that sum, 501. 5s. 11d., due in respect of the 627. 10s., which he had applied as directed by the decree in part payment of the interest of the mortgage. He next certified, that no interest on the mortgage was ever paid to the defendant or his father, and that there was due for principal, in respect of the mortgage, 997. 12s. 8d., and for interest, from the 25th of October 1774 to the 25th of November 1844, being seventy years, one month, and five days, after deducting the 50l. 5s. 11d., the sum of 326l. 9s. 4d., which, being added to the 99l. 12s. 8d., made together 4261. 2s., which he found to be the total amount then due, in respect of the principal and interest on the mortgage securities; but it being admitted before him, that J. Roby the elder purchased one moiety of the mortgaged premises, he found that there was then due to the defendant 2137. 1s., being one moiety of the 4261. 2s.: to which being added 159l. 4s. 11d., the taxed costs of the defendant, which were directed by the decree to be taxed, they made together 3721. 5s. 11d. then due for principal, interest, and costs on the said mortgage securities; and he appointed the plaintiff to pay that sum, or such other sum as the Court should direct, on the 30th of November 1844. To this report several exceptions were taken, upon the grounds that there was not anything due to the defendant, and that the Master ought to have certified that there was a balance due to the plaintiff. The exceptions came on for argument, before the Vice Chancellor of England, on the 19th of November 1844, when they were overruled; and shortly afterwards the usual order of foreclosure was obtained against the plaintiff, for default in paying the amount certified by the Master to be due upon the mortgage. The plaintiff appealed against the order overruling the exceptions; and in consequence of an objection suggested by the defendant's counsel, that the cause was out of court by reason of the order for foreclosure, a notice of motion was also given to discharge that order. Mr. Koe and Mr. Miller, in support of the appeal, said, it was evident, upon the face of the Master's report, that the amount of an occupation rent, fairly chargeable against Roby the elder, up to the time of his death, was 419l. 15s. 11d., from which being deducted 3391. 19s. 4d., the amount found due for principal and interest, there remained 797. 16s. 7d. due from Roby the elder, and that the occupation rent, fairly chargeable against the defendant from the time of his father's death, amounted to 3277.; and to a moiety of the two sums of 791. and 3277. the plaintiff was clearly entitled; and yet, because the decree did not direct, in terms, an account of rents and profits during the lifetime of Roby the elder, a large balance was found to be due from the plaintiff. Where the appointed officer of the court clearly shewed his own finding to be erroneous, the Court would take upon itself the duty of correcting it, even though the terms of the decree might not be sufficiently comprehensive to warrant it. They submitted, however, that as the Master was In this case, a motion was made on behalf of the plaintiff, to discharge for irregularity the order for the Serjeant-at-Arms to bring him before the Court, on the ground, that the service had been made upon the London agent of the plaintiff's solicitor, instead of upon the country solicitor himself. Mr. Wakefield, in support of the motion, cited the 17th Order of the 26th of October 1842 (1). Mr. W. W. Cooper, for the defendant, contended that the 17th Order did not apply to this case, and that the service was perfectly regular. The VICE CHANCELLOR held the service to be regular, and refused the motion. (1) Ord. Can. 213; 12 Law J. Rep. (N.s.) Chanc. 3. S. D. M, by his will, dated in 1832, gave to trustees all his real and personal estate which he might be entitled to at his death, upon trust, after the second marriage of his wife, to apply the income for the benefit of his children, and if more than sufficient for their maintenance, &c., to invest the surplus to accumulate at interest till they attained twenty-one years of age, and on their attaining twenty-one, upon trust, to convey the testator's real and personal estate equally between such children; and if either of them should die before attaining twenty-one years leaving issue, then the share of him or her so dying should go to such issue, but if there should be only one such child, then unto such only child, his or her heirs, executors, or administrators for ever; and if all his, the testator's, present or future children or child should happen to die, and without leaving issue, then upon trust to release the said real estate to the testator's heir-at-law, and to assign his personal estate unto and equally between his next-of-kin, according to the Statute of Distributions. Mrs. B, the testator's widow, married the defendant, J. B. B, in 1838. The testator had two children living at his death, a son and a daughter; the son died on the 8th of July 1841, in the ninth year of his age, and the daughter died on the 9th of July 1841, in the thirteenth year of her age. In pursuance of a reference made by the Court in January 1843, the Master reported that the two children of the testator were his next-of-kin at his death, and that the defendants, J. G. M, and E. M, the brother and sister of the testator, would have been his next-of-kin if he had died without issue, and that they were such next-of-kin at the death of the testator's last surviving child:-Held, that the legal personal representative of the two deceased children was entitled to the personalty in their right. The will of the testator, S. D. Maud, and the facts, are sufficiently stated in the judg ment. NEW SERIES, XV.-CHANC. Mr. Tinney and Mr. Headlam appeared for the plaintiffs, Seifferth and Emra, the trustees of the will; Mr. Turner and Mr. Elmsley, for the defendants, J. B. Badham and Mary his wife; and Mr. Kindersley and Mr. Craig, for J. G. Maud and Elizabeth Smith, late Elizabeth Maud, the testator's brother and sister. lowing cases were cited, viz.— Briden v. Hewlett, 2 Myl. & K. 90; The MASTER OF THE ROLLS.-In this case, the testator, Samuel John Maud, by his will, dated the 4th of February 1820, directed his executors to place in the public funds a legacy, the interest of which he directed to be paid half-yearly to his son Samuel Diedrich Maud during his life. S. D. Maud was to have liberty to dispose of the same by his will, but not in any way to dispose of it during his life. On the 31st of August 1832, S. D. Maud, by a will of that date, gave, devised, and bequeathed to Benjamin Seifferth and the Rev. John Emra all his freehold, leasehold, and personal estate, not before bequeathed, of what nature soever, which he might be possessed of, or entitled to at the time of his death; to hold the same on certain trusts therein mentioned: and from and immediately after the decease or second marriage of his wife, to apply the income to and for the benefit, maintenance, and education of his children, in such manner as the trustees might think best, and if more than sufficient, to invest the surplus, to accumulate at interest till his children should attain twenty-one. Then the will thus proceeds: "And on their, his, or her severally attaining the age of twenty-one, upon trust, to release, convey, transfer, and assign my said real and personal estate unto and equally between such children, if more than one, as tenants in common and share and 2 Y |