purchasers that his song was not the same as the Plaintiffs', because he could not secure that retail dealers purchasing from him would give the same information to their customers.

An interim injunction having been granted, the Defendant, instead of submitting, insisted on his right to continue the publication of his song. Held, that he must pay the costs of a motion against him to continue the injunction, although it appeared that no application had been made to him by the Plaintiffs previously to the filing of the bill."

Another part of the Plaintiffs' case being that the Defendant had pirated two bars of music which had been added by the Plaintiffs to the original air, the Court refused to extend the injunction to restrain such piracy until the fact had been established by a trial at law.

This was another suit for an injunction to restrain the publication and sale of another imitation of the same song as was the subject of the suit in the last preceding

case.

The Defendant was a music publisher in London, who, without the permission of the Plaintiffs, in May or June 1855 published a song intitled "Minnie, dear Minnie," on the title-page of which were the words "Minnie, dear Minnie. Madame Anna Thillon. London: Davidson's Musical Treasury, Peter's Hill, Doctors' Commons.' There was also upon the same title-page, above the words "Madame Anna Thillon," a lithographed portrait of Ma-[124]-dame Anna Thillon, but dissimilar from the portrait on the title-page of the Plaintiffs' song "Minnie.'

In "Minnie, dear Minnie" words were set to the air "Lillie Dale," with a symphony and accompaniments resembling those of the Plaintiffs' song "Minnie;" but the words of the Defendant's song were not the same as those of "Minnie," though they contained passages which the Plaintiffs alleged resembled, and were colourably imitated from, passages in the words of "Minnie.'

The Plaintiffs filed the bill in this suit, alleging that the publication of the Defendant was published by him with a view of inducing the public to believe that it was the same song as that sung by Madame Anna Thillon, and published by the Plaintiffs under the title of "Minnie," and to purchase the same accordingly to the injury of the Plaintiffs. That the Defendant's song "Minnie, dear Minnie had never been sung by Madame Anna Thillon, and that song and the name and title thereof, and the portrait lithographed thereon, were a piratical imitation of the publication of the Plaintiffs, as would appear by inspection and comparison of the two publications respectively, and were an infringement of the aforesaid copyright of the Plaintiffs.

The bill prayed an account and payment of the profits made by the Defendant upon the sale of the song "Minnie, dear Minnie," and an injunction to restrain the Defendant from printing, publishing, selling or exposing for sale, or otherwise disposing of the said song "Minnie, dear Minnie," or any copies or copy thereof, or any other publication consisting of or containing a colourable imitation or adaptation of the said song "Minnie," or the words, name, title or title-page thereof, and from otherwise pirating the said song or infringing the copyright of the Plaintiffs therein.

[125] The Defendant's case was that, having previously published the American song "Lillie Dale" in April 1855, he purchased from a lady some verses written by her to the old air of "Lillie Dale," and gave them to a musical professor, together with a manuscript copy of the air, in order to enable him to compose suitable symphonies and accompaniments, being at the time totally ignorant of the symphonies and accompaniments composed by Linley for the same air; and that the professor employed by the Defendant composed symphonies and accompaniments accordingly, and added two bars as a refrain to the air, and without any knowledge of the Plaintiffs' song, and that he copied the entire design of the title-page from an American publication, called "Dreams of Home." The Defendant further stated that the words of his song differed entirely from the words of the Plaintiffs' song, and that the Plaintiffs' song was written as though by a woman, while Defendant's was supposed to be by a man.

It appeared that no application had been made to the Defendant to discontinue publishing his song before the filing of the bill.

An interim injunction had been granted against the Defendant in the Long Vacation. This was a motion to continue it.

Mr. Rolt, Q.C., and Mr. Chapman Barber, for the Plaintiffs.
Mr. Daniel, Q.C., and Mr. Selwyn, for the Defendant.

The arguments are fully noticed in the judgment. The cases referred to were Flavel v. Harrison (10 Hare, 467) and Perry v. Truefitt (6 Beav. 66).

[126] THE VICE-CHANCELLOR Sir W. PAGE WOOD. This case depends rather upon the question whether the Defendant has a right to sell, as his own, that in which another has acquired a description of property, than on the question of copyright. In truth, there is no infringement at all of what is strictly called copyright; there is no piracy of words, and the only thing which resembles an infringement of copyright is the alleged piracy of two bars of music. The question here is identical with that which arose in Chappell v. Sheard (Sup. p. 117).

There was a certain song, called "Lillie Dale," the air of which was invented in America, and it was a song well known apparently there, not so well known, it is said, in England, but which had been published by the Defendant himself in England. I gather that it does not appear to have become popular or available as property under the name of "Lillie Dale.'

The Plaintiffs, however, thinking that the air had merit in it, obtained words, composed by Mr. Linley, to suit the air, and they gave to this new song the name of "Minnie." That was not the first word of the song, which begins, "When the sun is high in the bright blue sky;" but the Plaintiffs chose to give to this song the name Of course, they had a right to compose such a song; they adapted the air with a certain change of arrangements, and the introduction of certain bars, giving a cadence at the close on which the musical professors set some value; and then the Plaintiffs procured, under an arrangement which they had made with M. Jullien, the advantage of Madame Anna Thillon's popularity, and she gave general notoriety to the song by singing it at M. Jullien's concerts. That circumstance seems to have caused the song to acquire considerable popularity. In consequence of this it appears that both in Sheard's case and in this there [127] was a manifest anxiety on the part of the Defendant to intimate to the public that the song which the Defendant published was the song sung by Madame Anna Thillon.

The proceedings of the Defendant in this case have been such as to make it impossible to believe that he did not intend the public to suppose that his publication was the identical song which Madame Anna Thillon had sung, and which had become so popular through her singing it. It is said that he calls it "Minnie, dear Minnie," and not "Minnie" alone, and that he has simply placed a portrait of Madame Anna Thillon on the title-page, and put her name below. I adhere to my original view, that the portrait is of very small consequence; but placing the name Madame Anna Thillon on the title-page of the song is of considerable importance. Nobody would know, I should suppose, that the portrait was intended for that lady if her name had not been written underneath it. Now, what honest motive could the Defendant possibly have in using the names of "Minnie," and "Madame Anna Thillon?" He says that, after the singing of this song by Madame Anna Thillon, he having published the American song "Lillie Dale," a lady, Mrs. Brown, brought to him words which he thought would go very well to the air. Those words began, "Minnie, dear Minnie." It is said that this lady is not to be found now. He does not tell us what put it into his head to use these words "Minnie, dear Minnie" as the heading of this song, which was before known by the name of "Lillie Dale;" but I think the meaning and purpose of the Defendant's acts are very manifest-the same air having been already adapted to a song with the name of "Minnie." The Defendant avers that he took a portrait of Madame Anna Thillon from an American work called "Dreams of Home," and placed it on his title-page. But, then, why did he think of applying the portrait of Madame Anna Thillon and her name to this song? He might as well have taken Madame Grisi or any other person. Of course, [128] it is palpable that he meant the public to understand that this thing which he was about to sell was the identical song which was sung by Madame Anna Thillon, under the name of "Minnie." Of that I cannot have the least possible doubt. That is similar to what occurred in Sheard's case; and it seems to me that it is impossible for any other person to claim

the right of doing such an act after the Plaintiffs had acquired a popularity for their song by the name of "Minnie," and had procured it to be sung by Madame Anna Thillon, and the song had become known to all vendors of music by that name and description. A person wanting to purchase it would say, Give me such and such a song, sung by such and such a person-give me "Minnie," sung by Madame Anna Thillon. That would be the common name by which the song would be inquired for; and then a purchaser asking for the Plaintiffs' song in that way might have this song which was published by the Defendant given to him. It is useless for the Defendant to allege as a defence, after he has done his best to lead the public to suppose that this is the song sung by Madame Thillon, that he cautioned his shop-boys and others to say that it was not the song of the Plaintiffs', and that the picture outside his song was merely a fancy portrait which he had put there, and the song was entirely a different composition from that of the Plaintiffs'. An observation was made upon that in argument which was sufficiently obvious, and on which I acted in the former case, and which was also acted upon in Sykes v. Sykes (3 B. & C. 441), at common law. There it was proved that the wholesale imitator of the Plaintiffs' trade mark sold the goods so marked, distinctly representing that they were manufactured by himself and not by the Plaintiffs; but then it was answered, he sold them to retail dealers, that those retail dealers might sell them to the public, who would buy them as the goods of the Plaintiffs. So here Mr. David-[129]-son might sell copies of his song with the same intimation to retail dealers, but there is no security that those retail dealers would sell them with the same caution to the public.

What I proceeded upon in Sheard's case is what equally appears in this case, namely, the appearance of the title-page, and the use of the name of Madame Anna Thillon. I do not think that the omission of the words "sung by " can make the Defendant's case better. That seems to me only to indicate a consciousness on his part that he was doing what was wrong. I do not think it is necessary to lay stress on the imitation of two bars of the music. That is only a question of copyright; and certainly, if the Plaintiffs intend to insist upon it as copyright, I should have to hear them in reply upon that, and to put them to an action on terms before I could continue the injunction. I propose to confine the injunction to the title-page, omitting the words "pirating the said song, or infringing the copyright of the Plaintiffs therein."

With regard to costs, there would have been a great difference if the Defendant had done what it was competent for him to do. If, when served with the interim injunction, he had said, "If you had applied to me not to do what you now seek to restrain me from doing, I should have been perfectly ready to have acceded to your request; and as you did not do so, if the interim injunction is continued, I shall ask for my costs;" there would have been a good deal to have been urged on the part of the Defendant, there having been no application previously made to him. But now that he comes forward and insists upon his right of publication, such an argument is at an end, and the case must be tried upon his right. He has never made an offer to desist from publishing, and I am obliged to try it as I should try any other case in which no previous application has been made. If the party brings the matter to a hearing and insists upon [130] his rights, there is an end of any question as to the propriety of the preceding application.

When I investigate those rights, the only circumstance in this case at all distinguishing it from Sheard's is the alleged misrepresentation to the public on the part of the Plaintiffs in holding themselves out as entitled to the copyright of the whole of this publication. In Sheard's case the objection was made that there was an attempt to mislead the public by putting Mr. Linley's name on the title-page, he being a well-known musical composer, and quite as well known in that capacity as a poet, if not more so. There were on the title-page in small print the words "written by George Linley;" and in the work itself his name was printed in the corner, without anything more, and in a place where it might lead to the inference that he was the author of the music. I then intimated that I might have some misgiving as to whether there was or not a wish on the part of the Plaintiffs to mislead the public in that respect. At the same time I said then, and I think so now, that it would be a great deal too much to infer from that, unless something else untrue had been stated or done, that the public would conclude that George Linley was the composer of the

66

It is stated that the song was music. Every word used is true. written by Mr. George Linley ;" and although in small print, it is in very distinct and visible print, and there is a separate line for it, and no person seeing the word "written" would think that meant composed. On the Defendant's song, it is stated to be arranged by G. Halliday, the poetry by Mrs. Louisa Brown, and the fact that those indications are given in other works and not given on the Plaintiffs' song would lead to the inference that as the Plaintiffs' song is not stated to have been "composed by G. Linley," no part of the music had been composed by him. I think that the inference from this circumstance of an intention to mislead is too faint, whatever degree of suspicion I may have on the subject, 131] to hold that there was a direct misrepresentation to the public when every word stated is perfectly true, and all that I can found my suspicions upon is merely something inferentially suggested to the mind.

Then the entry at Stationers' Hall is relied upon. Assuming that the entry might have been made as to part of the publication only, when Mr. Linley had this entry made, the actual facts were that he was the proprietor of the whole of that portion of the book which consists of the words of the song; he was the proprietor of the arrangement he had made of the music, including the two new bars; but the song itself was not an original song-that is to say, the world at large would have a right to print the original music separately and detached from the words of Mr. Linley, and from this representation as to the name of "Minnie" and its being sung by Madame Anna Thillon. However much it may go to the question of copyright, the entry at Stationers' Hall does not appear to me to amount to a wilful or fraudulent misrepresentation to the public of the rights of Mr. Linley.

If it is sought to obtain an injunction to restrain the piracy of the two bars, I must let that go to law, and leave the Plaintiffs to make such case as they can upon it; but if the injunction is to be confined to preventing this Defendant from holding out his goods to the public as being the goods of the Plaintiffs, I think then, as in Sheard's case, the full right is made out; and there is no such default on the part of the Plaintiffs in regard to deception as entitles me to say they may not hold the injunction on the same grounds as they did in Sheard's case. As I have granted the injunction, I do not impose upon the Plaintiffs the necessity of bringing an action.(1)

[132] SNOW v. BOOTH. Dec. 11, 12, 1855.

[Affirmed, 8 De G. M. & G. 69; 44 E. R. 315.]

Stat. of Limitations. 3 & 4 Will. 4, c. 27, ss. 25, 42. Express Trust. Term.
Annuity. Arrears.

In 1824 A., and B. as his surety, covenanted to pay an annuity for ninety-nine years;
and A. granted lands, to which he was entitled in remainder expectant upon the
decease of the survivor of two tenants for life, to a trustee for 500 years, upon
trust, in case the annuity should be in arrear for a month, and either before or after
the decease of the surviving tenant for life, to sell for the purpose of raising the
arrears of the annuity, and securing future payments. B. became bankrupt in 1827,
A. in 1829. The last payment in respect of the annuity was made in 1831. Upon
bill filed by the annuitant in 1854, one of the life-estates still subsisting: Held,
that the Plaintiff was entitled to have the lands sold for the residue of the term
according to the trust, and to payment of all arrears.
All that Hunter v. Nockolds (1 MacN. & G. 640) determined was that, in a suit for the
administration of the assets of a grantor of an annuity, the annuitant cannot prove,
as a personal debt, for more than six years' arrears. If the decision went to a
case like the present, it is overruled by Cox v. Dolman (2 De G. MacN. & G. 592).

By an indenture, dated in 1824, Noy, and Sheppard, as his surety, covenanted with Morris to pay him an annuity of £36 by quarterly payments for 99 years, to be com

(1) The Lords Justices, on appeal, continued the injunction, but on the terms of an action being brought, and reserved the costs till after trial of the action.

puted from the date of the indenture, if four persons therein named should so long live; and by the same indenture Noy granted and demised to Bridger certain freeholds (to which he was entitled in remainder expectant upon the decease of the survivor of two tenants for life, for a legal and equitable estate in fee-simple), to hold to Bridger, his executors, administrators and assigns, from the date of the indenture, for a term of 500 years, subject to the life-estates, upon trust to permit Noy and his heirs to hold the premises until the same should become liable to be sold under the trusts of the indenture; and upon further trust, in case the annuity or any part thereof should be in arrear by the space of one calendar month next after any of the days or times whereon the same ought to be paid as aforesaid, then that Bridger, his executors, administrators or assigns, should, without the necessity of any further consent or concurrence of Noy, his heirs or assigns, and either before or after the decease of the tenants for life or the survivor of them, make sale and absolutely dispose of the said premises, or such part or parts thereof as Bridger should think proper, for all the then residue of the term of 500 years as therein mentioned. The deed then contained a declaration that the moneys to arise by the sale [133] should be held in trust to pay to Morris, his executors, &c., so much of the annuity thereby granted as at the time of the sale should be in arrear and unpaid, with costs, occasioned by default in payment of the annuity and upon trust to invest the residue for the purpose of forming a fund for payment of the annuity and costs, and subject thereto for Noy, his heirs, executors or administrators. After the determination of the annuity, the demised premises remaining unsold were to be in trust for Noy and his heirs.

Sheppard became bankrupt in 1827, Noy in 1829.

In 1831 the reversion in fee, expectant upon the decease of the surviving tenant for life, in the demised premises was sold and conveyed, subject to the annuity and any claim in respect thereof, to the purchaser. When the bill was filed it was vested in the Defendant, Drysdale.

The last payment in respect of the annuity was made in 1831.

In August 1854 a bill was filed by the surviving executor of Morris against the administrator de bonis non of Bridger, Noy's creditors' assignee, and Drysdale, for an account of what was due in respect of the annuity, to have the premises comprised in the term of 500 years sold, and the proceeds of the sale applied towards satisfying the arrears of the annuity, and to have the surplus (if any) secured and invested, and from time to time applied with the income in keeping down the annuity.

When the bill was filed two of the persons for whose lives the annuity was granted, and one of the tenants for life, were dead.

The Defendant relied upon the Statute of Limitations as a defence to the bill, or at any rate to so much of it as [134] sought an account of arrears payable more than six years before the filing of the bill.

Mr. Rolt, Q.C., and Mr. Boyle, for the Plaintiff.

The

The Statute of Limitations is no bar to any portion of the Plaintiff's claim. term is a subsisting term, demised by the party having a legal remainder in fee to a trustee, in whose representative it is now vested, upon an express trust. The case, therefore, is precisely within the exception provided by the 25th section of the statute, and time has not yet begun to run against the Plaintiff.

The point was decided as long since as 1845 by Lord Lyndhurst in Young v. Lord Waterpark (15 L. J. (N. S.) Chanc. 63; S. C. 10 Jur. 1); and if doubt has been since thrown on that decision by Hunter v. Nockolds (1 MacN. & G. 640), all doubt is now removed by Cox v. Dolman (2 De G. MacN. & G. 592), in which Lord St. Leonards and the Lords Justices determined that, where there is a subsisting term, upon an express trust to secure an annuity, the annuitant is not barred by the 42d section from recovering the entire arrears. (See Lord St. Leonards' "Essay on the New Statutes," p. 105.)

Mr. Daniel, Q.C., and Mr. T. Stevens, for the Defendant Drysdale.

The statute is a bar to the entire claim. When both trustee and cestui que trust are out of possession, the party entitled subject to the term, whose title is adverse to the term, must have the benefit of the statute, if he can shew laches; and here no payment has been made since 1831.

[135] At all events, the statute is a bar to so much of the bill as seeks an account