1839.-Lewis v. Fullarton.

though a considerable part of the work appears to have been copied, yet as the two works have not been compared in every part, it does not appear, on the whole, how much has been copied, or on the whole, what part of the defendant's work with regard to the plaintiffs' work at least, can be considered as original. In the case I have mentioned, Lord Eldon made a very special order: but I cannot help entertaining some doubt, whether that order could have been acted on with advantage to either party.[1] The parties, however, did not prosecute it, and the report adds, the suit was compromised by the payment of a considerable sum of money by the defendant to the plaintiffs.

1 conceive, that when it has been once ascertained that the defendant has in any degree violated the right of the plaintiff, the nature and extent of the order to be *made must depend on the circumstances of the [*11] cases, and the amount and extent of the evidence adduced. The piracy proved may be so inconsiderable, and so little likely to injure the plaintiff, that the court may decline to interfere at all, and may leave the plaintiff to his remedy at law ;[2] or the piracy proved may be extensive in a greater or less degree, such as to leave it extremely doubtful whether the parts not examined are in any degree piratical, or such as to make it more or less probable that they have been composed in the same manner, collected from the like sources as the parts which have been examined, and are in an equal degree liable to the charge of piracy.

The hardship of restraining, or doing that which is equivalent to restraining the whole of a work, when part of it consists of original matter, has always been urged in cases of this nature, and the answer which is given by Lord Eldon, in the case to which I have already referred, seems conclusive: "If the parts which have been copied cannot be separated from whose which are original without destroying the use and value of the original matter, he who has made an improper use of that which did not belong to him must suffer the consequences of so doing; if a man mixes what belongs to him with what belongs to me, and the mixture be forbidden by the law, he must again separate them, and he must bear all the mischief and loss which the separation may occasion. If an individual chooses in any work to mix my literary matter with his own, he must be restrained from publishing the literary matter which belongs to me; and if the other parts of the work cannot be separated, and if by that means the injunction which restrained the

[1] It may well be doubted "whether that order could have been acted on with advantage to either party." To carry out its provisions must have been attended with great expense; enough perhaps to absorb the value of the matter in controversy; with the certainty that each party must sustain expenses which could not be brought into the general costs of the suit; and with the uncertainty what might be the ultimate disposition of the general costs. It is, therefore, not surprising, when we examine Lord Eldon's complex and embarrassing order, that the parties were willing to come to a compromise.

[2] Vide 2 Kent's Comm. 383, n. b., where Bell v. Whitehead, in the English Chancery, 1839, is referred to. 2 Sim. & Stu. 10, n. 1.

1839.-Lewis v. Fullarton.

publication of my literary matter prevents also the publication of his own literary matter, he has only himself to blame."[1]

[*12] *In cases of this nature, it must be observed, that nothing but an injunction can sufficiently protect the injured party. In the same case Lord Eldon has observed that, "though keeping an account of the profits may prevent the defendant from deriving any profit, as he may ultimately be obliged to account to the plaintiff for all the gains, yet if the work which the defendant is publishing in the meantime really affects the sale of the work which the plaintiff seeks to protect, the consequence is, that the rendering the profits of the former work to the complaining party, may not be a satisfaction to him, for what he might have been enabled to have made of his own work, if it had been the only one published; for he would argue, that the profits of the defendant, as compared with the profits which he, the plaintiff, has been improperly prevented from making, could only be in the proportion of the price of a copy of the one book to the price of a copy of the other." On the whole, for the reasons thus stated, it appears to me, that an injunction ought to be granted, whenever it appears, by sufficient evidence, that a copyright exists, and that piracy has been committed to an extent which is likely to be seriously prejudicial to the plaintiff; and that the extent of the injunction must depend on the amount of proof and the nature of the work. The plaintiffs in the present case ask for an injunction, to restrain the defendant from publishing the whole or any part of the defendant's gazetteer. As it appears from the evidence that there are parts of the defendant's gazetteer which are not borrowed from the plaintiff's work, I cannot grant an injunction in those terms; and it becomes a question, whether an injunction should be granted in general terms against such parts as have been pirated, or whether means should be taken to ascertain what particular

parts have been pirated, in order that the publication of those particu [*13] lar parts may be *restrained. Now it appears to me, not, it must be

admitted, by absolute proof and demonstration, for the two works have not been examined in every part, but upon proof and demonstration as to part, and as to the rest by strong inference and presumption, arising from the proof given as to those parts to which the proof applies, and from the nature of the work and the circumstances under which it is proved to have been composed, that if the parts pirated were taken away, though some articles would remain in their entirety, yet the greater number would be left in a state so imperfect and incomplete, that the defendant's work would lose its distinctive and useful character as a gazetteer.

If the defendant were desirous to avail himself, as he has an undoubted right to do, of any original matter of his own, or of any matter which he has fairly taken from other sources, he would, I think, be under the necessity of

[1] If a party so confounds the property of another with his own, that the line of distinction cannot be traced, all the inconvenience of the confusion is thrown upon him, and it is for him to distinguish his own property, or lose it. Hart v. Ten Eyck, 2 Johns. Ch. Rep. 199.

1839.-Lewis v. Fullarton.

recomposing his work for the purpose of separating that which appears to me to have been improperly taken from the plaintiffs' work. Lord Eldon says,(a) "In the cases which have come before me, my language has been, that there must be an injunction against such part as has been pirated, but in those cases the part of the work which was affected with the character of piracy was so very considerable, that if it were taken away, there would have been nothing left to publish except a few broken sentences ;" and it was because the evidence before him did not enable him to approach sufficiently to that result, that he made the particular order which he did in that case.

But in this case, having availed myself of the evidence which has been so industriously collected during the long time that this motion was pending, and having *read with great care all the affidavits laid before me, [*14] and more particularly the affidavits of Mr. Holliday and Mr. Cunningham, I think I have reasons on which I ought judicially to act, for considering, that the parts of the works which have been examined and compared, afford fair indications of the nature and character of those parts of the works which have not yet been examined and compared; and it appearing to me, under these circumstances, that if the parts affected with the character of piracy were taken away, there would be left, I cannot say nothing but a few broken sentences, but there would be left an imperfect work, which could not, to any useful extent, serve the purposes of a gazetteer, I thing that I ought to grant an injunction, to restrain the publication of the parts which are pirated, without waiting till all the parts which have been pirated can be distinctly specified; and therefore the order which I shall make will be: let the defendaut, his agents, servants and workmen be restrained from further printing, publishing, selling or otherwise disposing of any copy or copies of a book called "A New and Comprehensive Gazetteer," &c., containing any articles. or article, passages or passage, copied, taken or colorably altered from a book called "The Topographical Dictionary of England," published by the plaintiffs.[1]

(a) 2 Russ. 399.

[1] "A copyright may exist in part of a work, without having an exclusive right to the whole. Gray's Poems were collected and published, with additional pieces, by Mason; and Lord Bathurst protected, by injunction, the unauthorized publication of the additions. So, Lord Hardwicke restrained a defendant from printing Milton's Paradise Lost, with Dr. Newton's notes.—A person cannot under the pretence of quotation, publish either the whole, or any material part of another's work; but he may use, what is in all cases very difficult to define, fair quotation. A man may adopt part of the work of another. The quo animo is the inquiry in these cases. The question is, whether it be a legitimate use of another's publication, in the exercise of a mental operation, deserving the character of an original work. If an encyclopædia or review should copy so much of a book, as to serve as a substitute for it, it becomes an actionable violation of literary property, even without the animus furandi. If so much be extracted as to communicate the same knowledge as the original work, it is a violation of copyright. It must not be in substance a copy. An encyclopædia must not be allowed by its transcripts, to sweep up all modern works. It would be a recipe for completely breaking down literary property." 2 Kent's Comm. 381, 382, 383, and cases there cited. See also Campbell v. Scott, 11 Sim. 31, from the judgment in which case. some extracts will be found in the Editor's note, 3 Myl. & Cr. 728, where he is made to cite a book which VOL. II. 2

An answer filed on the morning on which a motion is made to extend the common injunction is not sufficient to prevent its being extended.

A bill stated, that judgment had been obtained at law, and prayed an injunction to stay execution ; the court of law afterwards set aside the judgment, and let in the defendant at law to plead ; a motion being made to extend the common injunction to stay trial was under these circumstances, refused.

On the 16th of February, a motion was made to extend the common injunction to stay trial, when the answer of the defendant, which had been filed that morning, was shown as cause and allowed by the Master of the Rolls.

Exceptions were afterwards taken to the answer, and one was allowed; and on the 23d of February, the motion to extend the common injunction was renewed. Notice of trial of the cause had been given for the 18th of February, and it was now objected on the part of the defendant, that the plaintiff, applying on the eve of trial, came too late and was not entitled to extend the injunction; Blacoe v. Wilkinson, (a) Field v. Beaumont.(b) Mr. Pemberton, for the plaintiff.

Mr. Bazalgette, for the defendant.

THE MASTER OF THE ROLLS on that ground refused the application, but without costs.

On the 25th of February Mr. Pemberton obtained leave to mention the case again, for the purpose of bringing the following authorities to the attention of the court, viz. Whitehouse v. Hickman,(c) Ibbottson v. Booth,(d) Munnings v. Adamson.(e)

has, as yet, no existence, viz: 5 Edw. Ch. Rep. As to the frame of the bill, or affidavit, on which an injunction is sought, and the subsequent proceedings, Shadwell, V. C, on a motion to dissolve an injunction granted ex parte, stated: "As long as I remember the court, it never has been thought necessary for a party who complains that his copyright has been infringed, to specify, either in his bill or his affidavit, the parts of the defendant's work which he thinks have been pirated from his work; but it has been always considered sufficient to allege, generally, that the defendant's work contains several passages, which have been pirated from the plaintiff's work; and to verify the rival works by affidavit. Then, when the injunction has been moved for, the two works have been brought into court, and the counsel have pointed out to the court the passages which they rely upon as showing the piracy. As it is quite plain that an injury has been done by the defendants, I shall continue the injunction as it now stands, and let the plaintiffs bring such action as they may be advised. I shall not fix any time for bringing the action; but, in order to guard against delay in commencing or proceeding with it, I shall give each party liberty to apply." Sweet v Maugham, 11 Sim. 51. See further 2 Russ. 405, n. 1. 2 Sim & Stu. 10, n. 1. Saunders v. Smith, 3 Myl. & Cr. 711, 728, n. 1, 736, n. 1, 737, n. 1. Bramwell v. Halcomb, id. 737. Grey v. Russell, 1 Story's Rep. 11.

(c) 1 Sim. & Stu. 102. (d) Id. 103.

(a) 13 Ves. 454. (b) 3 Mad. 102. S. C. 1 Swan. 204. (e) 1 Sim. 510.; 1 Smith's Ch. Pract. 613. [The authority of Munnings v. Adamson, is questioned by Wigram, V. C. who, speaking to the case of Thompson v. Byrom, says, "I do not find that Lord Langdale, in that case, followed or had occasion to follow, the precedent of Munnings v. Adamson." Scotson v. Gaury, 1 Hare, 102.]

1839.-Thompson v. Byrom.

*Mr. Bazalgette, contra, in addition to the point previously relied [*16] on by him, insisted that the plaintiff now attempted to make out a case different from that stated on the record, for the bill stated " that the defendant had proceeded to judgment and threatened to sue out execution," and it prayed an injunction to restrain the defendant from issuing execution. That it had happened, however, that the Court of Queen's Bench had set aside the judgment, which had been obtained by default, and had permitted the defendant in the action to plead; that the defendant now sought to restrain the plaintiff at law from proceeding to trial, which was inconsistent with the frame of his bill, which only sought to restrain execution.

THE MASTER OF THE ROLLS:—I was mistaken in thinking, that an answer filed on the day on which the motion was made, was sufficient to prevent the extension of the common injunction; I believe I ought to have required it to be shown, that the answer had been filed at least on the previous evening. It appears from the cases cited, that to prevent a serious injury, the court will sometimes look into the answer to see if it is sufficient, and be governed by its own opinion.

In this case I must refuse the application, in consequence of the statement in the bill which has been referred to by the defendant's counsel.[1]

[1] It is not the practice of the court to look into the answer to an injunction bill, for the purpose of determining whether the answer is sufficient, without exceptions having previously been taken thereto, notwithstanding the answer may be filed so near the day of trial, that it is probable the trial will be had before the proceedings can be stayed by the result of a reference in the usual course. If the answer were a mere pretence and evasive, it might be otherwise. If, in such case, the answer is excepted to for insufficiency, the court will look into the exceptions and the answer, instanter, without referring them. Scotson v. Gaury, 1 Hare, 99. In that case, Wigram, V C., says, (p. 104,) “The facility with which the court allows injunctions to be obtained to stay proceedings at law is such, that it is bound to look at its practice with strictness. The plaintiff files his bill, which it may be impossible that the defendant should answer in the time prescribed by the practice of the court. At the expiration of that time, the common injunction issues as of course, and the plaintiff is at liberty to move upon an affidavit, which, by the practice of the court, the defendant is not allowed to answer, to extend the common injunction to stay trial. The court, therefore, is bound to see that the plaintiff, who claims the benefit of such a practice, shall give the defendant the benefit of every safeguard which has been established for his protection."