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and material original part of his " railroad scene," as he is in respect of the whole. Under the the Act of 1856, construed in connection with the Act of 1831, he is entitled to be protected against piracy, in whole or in part, by representation as well as by printing, publishing, and vending. Although the Act of 1831, in regard to printing, publishing, and vending, uses the words “ in whole or in part,” and the Act of 1856, in regard to representing, does not use those words, yet the Act of 1856, by referring, as it does, to the right conferred by the Act of 1831 as the “sole right to print and publish ” the copyrighted composition, when such right is, on the face of the Act of 1831, the sole right to print and publish “ in whole or in part,” and by then conferring “the sole right also to act, perform, or represent the same, or cause it to be acted, performed, or represented, on any stage or public place,” must be held to confer the right to represent in whole or in part.

All that is substantial and material in the plaintiff's “railroad scene,” has been used by Boucicault, in the same order and sequence of events,

1 In the case of Turner v. Robinson, 10 Ir. Ch. 121, s.c. on Appeal, ib. 510, the plaintiff was proprietor of a picture, “Death of Chatterton,” had publicly exhibited it in sundry places, and was having an engraving made from it. The picture had been engraved in a catalogue previously, in a cheap way, and no objection was made to this by the proprietor. The defendant arranged a tableau vivant in his studio following the grouping of, and with a painted background like the one in the picture, and took a pair of photographs for the stereoscope from this group. Sale of the photographs was enjoined.

? In considering whether there is infringement of copyright, we often have to consider the quality of the matter taken, rather than its quantity. Gray v. Russell, 1 Story, 11, Case of “ Adam's Latin Grammar;" Folsom v. Marsh, 2 Story, 100, Case of “ Sparks's Life of Washington ;Story v. Holcombe, 4 McLean, 306, Case of “Story's Equity Pleadings.” And it is no defence that only a part of the work is taken, because the owner of the copyright owns it all. Folsom v. Marsh, ubi sup. In an action for penalties, the rule is different; the whole work must be taken, not merely so much as to render one liable to action for infringement. Rogers v. Jewett, 22 Law Rep. 339 (Curtis, J., 1857, C. C. U.S., Mass.). The plaintiff had published a book called “Philosophy of Mysterious Agents, Human and Mundane; or, The Dynamic Laws and Relations of Man, embracing the Natural Philosophy of Phenomena styled Spiritualism,” and the defendants had copied a large part of this book in a publication called “Modern Mysteries Explained and Exposed.” A demurrer to an action of debt for the penalty of fifty cents a sheet, under St. 1831, ch. 16, § 6, was sustained, though an action on the case for damages might have been sustained. See Atwill v. Ferrett, 2 Blatchf. 48, Case of “Bohemian Girl ;" Dwight v. Appleton, ubi sup, and Backus v. Gould, 7 How. 798, Case of “Cowen's and Wendell's Reports.” Quære, as to the rule of damages under the Act of 1856, ch. 169, establishing a rate of damages at not less than one hundred dollars for the first, and fifty dollars for subsequent performances of a copyrighted play, - in case only a very small part of the play is borrowed. Consult on this point, cases on confusion of goods, 2 Black. Comm. 405, and cases cited in Wendell's edition. See also Hart v. Ten Eyck, 2 Johns. Ch. 62. Gillespie v. Moon, 2 Johns. Ch. 585; Brackenridge v. Holland, 2 Blackf. 377.

and in a manner to convey the same sensations and impressions to those who see it represented, as in the plaintiff's play. Boucicault has indeed adapted the plaintiff's series of events to the story of his play, and in doing 80 has evinced skill and art; but the same use is made in both plays of the same series of events, to excite, by representation, the same emotions in the same sequence. There is no new use, in the sense of the law, in Boucicault's play, of what is found in the plaintiff's “ railroad scene.” The " railroad scene" in Boucicault's play contains every thing which makes the “railroad scene" in the plaintiff's play attractive, as a representation on the stage. As, in the case of the musical composition, the air is the invention of the author, and a piracy is committed, if that in which the whole meritorious part of the invention consists is incorporated in another work, without any material alteration in sequence of bars ; so in the case of the dramatic composition, designed or suited for representation, the series of events directed in writing by the author in any particular scene is his invention, and a piracy is committed if that in which the whole merit of the scene consists is incorporated in another work, without any material alteration in the constituent parts of the series of events, or in the sequence of the events in the series. The adaptation of such series of events to different characters, who use different language from the characters and language in the first play, is like the adaptation of the musical air to a different instrument, or the addition to it of variations or of an accompaniment. The original subject of invention, that which required genius to construct it and set it in order, remains the same in the adaptation. A mere mechanic in dramatic composition can make such adaptation ; and it is a piracy if the appropriated series of events, when represented on the stage, although performed by new and different characters, using different language, is recognized by the spectator through any of the senses to which the representation is addressed, as conveying substantially the same impressions to, and exciting the same emotions in, the mind, in the same sequence or order. Tested by these principles, the “railroad scene ” in Boucicault's play is undoubtedly, when acted, performed, or represented on a stage or public place, an invasion and infringement of the copyright of the plaintiff in the “railroad scene” in his play.

The substantial identity between the two scenes would naturally lead to the conclusion that the later one had been adopted from the earlier one. The charge of actual plagiarism on the part of Boucicault, made in the bill, is not denied. It is hardly possible that the resemblances are accidental, and that the differences are not merely colorable, with a view to disguise the plagiarism. The true test as to whether there is piracy or not, is to ascertain whether there is a servile or evasive imitation of the plaintiff's work, or whether there is a bona fide original compilation made up from common materials and common sources, with resemblances which are merely accidental, or result from the nature of the subject. Emerson v. Davies, 3 Story, 768, 793.


Nothing that has been adduced on the part of the defendants affects the validity of the plaintiff's copyright on the question of the originality and novelty of the railroad scene” in his play.

The sale of Boucicault's play to other persons, with a view to its public representation, makes the seller a participant in causing the play to be publicly represented.

An injunction must therefore issue, restraining the defendants from the public performance or representation, and from the sale for public performance or representation, of the “railroad scene" in the play of “ After Dark," or of any scene in substance the same as the “ railroad scene” in either of the two plays, as such scene is herein defined.

Thomas S. Alexander, William Tracy, Joseph F. Daly, for the plaintiff; William D. Booth, with whom was Thomas W. Clarke, of Boston, for the defendants.

I Descriptive matter in a record of title is no part of the title. Thus a book described in the record as in a certain number of volumes may be published in a different number. Dwight v. Appleton, 1 N.Y. Leg. Obs. 195.


[For the present number of the Digest, selections have been made from the following volumes of State Reports : 1, 2 Bush (Kentucky); 32, 33 California ; 16, 17, 18 Grattan (Virginia); 3 C. E. Green (18 N.J. Chancery); 40, 41 Illinois ; 28 Indiana ; 23 Iowa; 41 Mississippi; 17 Ohio State; 56 Pennsylvania State; 40 Vermont.]



ADMIRALTY. The Hine v. Trevor, 4 Wallace, 555, disapproved, but followed in Ballard v. Wiltshire, 28 Ind. 341.


ALIMONY. Alimony pendente lite may be allowed without statute authority. The power to grant it being incident by common law to the power to grant divorces. — Pe trie v. People, 40 ml. 334.

AMNESTY. See Way, 3.

APPEAL. See STAMP, 6, 7.

ASSIGNMENT. An unliquidated balance of account is assignable. — Wescott v. Potter, 40 Vt. 271.



1. The payee of a note for $40, payable on demand in "hemlock bark, at the going price,” in the summer of 1863, requested the maker to have the bark peeled in the course of the summer (the season for peeling bark), and delivered the next winter, which the maker agreed to do. The bark was not delivered. Held, that the demand was appropriate to the note, and that, on defendant's failure to furnish the bark, the payee could recover on the money counts. — Read v. Sturtevant, 40 Vt. 521.


2. On a promise to pay “as soon as able," a judgment and execution are the best test of defendant's ability to pay. — Cecil v. Welch, 2 Bush, 168. See CARRIER, 4; CERTIFICATE OF DEPOSIT; DAMAGES, 2; STAMP, 5. BAILMENT. — See CONSIGNOR; INNKEEPER; WAREHOUSEMAN.


BETTERMENT. 1. An act of the legislature incorporated a company for the purpose of draining large tracts of marsh land, and authorized one of the judges of the Supreme Court to appoint three commissioners to make a contract with said company for said purpose, subject to the approval of one of said judges. The contract price was to be assessed, and to be a lien upon the land benefited; but there was no provision for the indemnification of the owner in case the expense exceeded the benefit conferred. Said act was not passed at the request of the land-owners. Held, that it was unconstitutional, by the Chancellor, on the ground that it was not passed for public uses, and that, as a police law, it was bad, as it allowed the making of a contract of profit to the corporation, and so imposed a rent charge on said lands for its benefit: on appeal, on the ground that it was a betterment law which did not limit the tax on the proprietors to the benefit conferred. The Tide-Water Co. v. Coster, 3 C. E. Green, 54; s.c. ib. 518.

See Ottawa v. Spencer, 40 Ill. 211. See also post, CONSTITUTIONAL Law, STATE,

2. A street-railroad company's easement of running cars over tracks in a street, may be assessed as real property benefited by the widening of said street for the expense of such widening. — Appeal of N.B. & M. R.R. Co., 32 Cal. 499; Chicago v. Baer, 41 II. 306.

As to word “land," see Cleveland & Pittsburgh R.R. Co. v. Speer, 56 Penn. St. 325.


BILLS AND NOTES. Notice of protest of a note was left at the house in Washington, of a member of Congress, after Congress had adjourned and he had left the city, as was his custom at such times. His domicile was in the district he represented, and his Washington house was occupied by strangers, by his permission, who did not pay rent. Held, that the notice was not sufficient (MONCURE, J., dissenting). Bayly v. Chubb, 16 Grat. 284.




Insanity is not a defence to an action on an injunction bond, it not appearing that plaintiff knew the fact.

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