defendant shall be entitled to a verdict, and that, if proved, but assessed by the jury at any sum not exceeding 5s., the plaintiff shall recover no more costs than damages, unless the judge before whom the trial shall have been held shall certify upon the back of the record, that, in his opinion, full costs ought to be allowed." Here, no special damage is alleged. [Williams, J. What sort of special damage do you say is contemplated by the act? Are there costs given?] The justices have power to give costs in all cases. It is difficult to say what the legislature meant by special damage: but they clearly must have meant something more than the mere expulsion from the premises, or there would have been no difficulty in stating it. Then, as to the objection that the form given by the statute has not been strictly complied with. If that objection be well founded, the omission of a single letter would be fatal. It is enough, however, if the notice served substantially follows the form. [Cresswell, J. In some instances, as in cases under the Uniformity of Process Act, 2 W. 4, c. 39, the Registration of Voters Act, 6 & 7 Vict. c. 18, and the recent Bills of Exchange Act, 18 & 19 Vict. c. 67, the parties have been held bound to follow the prescribed forms with extreme closeness and precision.] The notice here given, is it is submitted, a perfect compliance with [177] the form prescribed. The objections to it are, that the defendant is not stated to be the "owner" of the premises; and that the "place" at which the party is to appear to shew cause why the warrant should not issue, is not sufficiently pointed out. The name of the landlord or owner is, however, stated in the notice; and the pleadings shew that Gregory Fox is the owner. Then, as to the place, the party is informed that the application will be made to the justices acting in and for the borough of Bradford, on a given day, and at a given hour. She was bound to know where the petty sessions are held.

Milward, in reply. The plaintiff is entitled to recover on both counts; and the pleas afford no answer. Professing to act upon the statute, the defendant serves the plaintiff with an irregular notice, and causes her to be turned out of the premises, without giving her the means of appearing to shew cause against the issuing of the warrant. If special damage be necessary, it is sufficiently alleged.

CRESSWELL, J. I am of opinion that the plaintiff is entitled to the judgment of the court upon the second count of the declaration in this case, and that the defendant is entitled to judgment on the demurrer to the second plea. The second count begins with stating that the plaintiff, after the passing of the statute 1 & 2 Vict. c. 74, was tenant to the defendant of certain premises, and, that the defendant caused to be served upon her the notice set out, and without the plaintiff having appeared hefore such justices, or having been heard to shew cause, or had any means or opportunity to shew cause against the issuing of such warrant as in the notice mentioned, procured to be issued and executed on the plaintiff a certain warrant, which is also set out, whereby and un-[178]-der the authority of which proceedings the plaintiff was forcibly ejected and expelled from the premises. Primâ facie that, though somewhat strange and informal, is still a count in trespass, and therefore such as to entitle the plaintiff to judgment thereon. But then comes the second plea, which shews that the landlord had a right to the possession of the premises, and therefore would be entitled to enter. That being so the learned counsel for the plaintiff insists that the second count may be treated as a count in case, and as relying not on the ground of want of title in the defendant to enter, but on the ground of his having proceeded irregularly under the act. Whether or not the plaintiff can so contend, may be open to a little doubt, seeing that in the first part of the count she disputes the defendant's title to the possession. I do not, however, say that it cannot be sustained as a count charging irregularity in the proceedings. But then comes the 6th section of the statute, which says, that, "where the landlord at the time of applying for such warrant as aforesaid had lawful right to the possession of such premises, neither the landlord nor his agent, nor any other person acting in his behalf, shall be deemed to be a trespasser by reason merely of any irregularity or informality in the mode of proceeding for obtaining possession under the authority of this act,"-here the defendant has been guilty (we may assume) of an irregularity, the notice not being in the form required by the statute: that, therefore, precludes the plaintiff from recovering in trespass but the statute goes on,-"but the party aggrieved may if he think fit bring an action on the case for such irregularity or informality, in which the damages alleged to be sustained thereby shall be specially laid." Now, I do not find any special damage alleged as arising from the informality of the proceeding it is not averred that the plaintiff was turned out of the premises,

or was [179] put to any costs, or sustained any other damage by reason of the irregularity. For these reasons, I am of opinion that the plaintiff must have judgment on the demurrer to the second count, and the defendant must have judgment on the demurrer to the second plea.

WILLIAMS, J. I am of the same opinion. Looking at the facts disclosed in the second count and in the second plea, it appears to me that this is one of the cases contemplated by the 6th section of the 1 & 2 Vict. c. 74. Upon the present principles of pleading, it is our duty, where, upon the whole facts disclosed upon the record, it appears that the plaintiff is entitled to maintain the action, to hold him to be so entitled, notwithstanding any mere informality in the mode of alleging the ground of complaint. But, in the present case, it does not appear that the plaintiff is entitled to maintain the action, because the 6th section of the act only gives him a right to bring an action alleging specially the damages he has sustained by reason of any irregularity or informality in the mode of proceeding for obtaining possession of the premises under the authority of the act. No such special damage is alleged here. The terms of the 6th section certainly are somewhat obscure. It does not seem to have occurred to the minds of the legislature that the landlord might be entitled to enter without the aid of a warrant.

:

CROWDER, J. The first question in this case arises upon the demurrer to the second count of the declaration, and that is as to the validity of the notice there set out. The plaintiff insists that she has disclosed a good cause of action in that count, because she has shewn that she was served with an informal and irregular notice under the statute, and was, without having appeared, or having the means or opportunity of appear-[180]-ing to object, expelled from the premises under a warrant founded upon that informal notice. It seems to me that the notice set out was an informal notice, inasmuch as it omitted to specify the place at which the plaintiff was to appear for the purpose of shewing cause against the issuing of a warrant. It seems to be rather doubtful whether the notice ought also to have alleged in terms that the party giving it was the agent of the owner of the premises: but, on the ground before stated, I think the notice was informal (a). Assuming the notice, then, to be informal, the next question is whether there is a good cause of action stated in the second count. I agree that it is not now necessary that the cause of action should be alleged with any precise formality and I think there is a ground of action sufficiently stated in the second count, and therefore that there should be judgment for the plaintiff on the demurrer to that count. Then comes the demurrer to the second plea. That plea contains the important allegation that the defendant had lawful right to the possession of the premises, the plaintiff's tenancy having been duly determined by a notice to quit, and the plaintiff having wrongfully held over. This renders it necessary to refer to the 6th section of the 1 & 2 Vict. c. 74, which provides, that, where the landlord at the time of applying for the warrant had lawful right to the possession of the [181] premises, he shall not be deemed a trespasser by reason merely of any irregularity or informality in the mode of proceeding for obtaining possession under the authority of the act; but that the party aggrieved may bring an action on the case for such irregularity or informality, in which the damage alleged to be sustained thereby,that is, the damage arising from the irregularity or informality, shall be specially laid. This is an action for the irregularity: it is therefore made specially necessary that the ground of action shall be laid by way of special damage. Now, what damage is alleged in the second count to have arisen from the irregularity in the mode of proceeding? It appears upon the whole record that the plaintiff ought to have been turned out of possession. It is said she had no proper notice to appear. Suppose she had appeared, all that she could have heard would have been, that she had no right to retain possession of the premises, and must be turned out. I therefore think the

(a) This doubt is generated by the position in which the word "owner" is found in the former. The first time it is used, it is improperly pleaded within the brackets, as part of the words of direction, instead of being, as it should have been, pleaded outside as part of the substance of the form. This form (as, indeed, are all the forms given in the schedule to this act) is throughout very inaccurately printed in this respect; some of the directory words being placed as part of the body of the notice: so that a notice in literal compliance with the form would clearly be a bad notice.

second plea is 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.

[182] LOVER v. DAVIDSON. Nov. 6, 1856.

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 Stret," 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 Plough-boy,"-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 [183] the copyright,-so far as concerned 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 shewn that there had been 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 shewn to be a mistake.

On the part of the defendant, it was insisted, that, to entitle him to maintain the action, the plaintiff must shew 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

(a) See Ex parte Davidson, 18 C. B. 297.

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

him, directed the jury to find for the plaintiff, which they accordingly did, with 40s. damages

Bovill now moved to enter a verdict for the defendant, [184] pursuant 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,-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 (a)1: "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 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 incon-[185]-venience would be. You might have a separate transfer 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 equtity, or any summary proceeding, in respect of any [186] infringement 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 com

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

(a)2 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.

municated 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, 1856.

[S. C. 5 W. R. 322.]

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 shewing 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 shew 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.]

Per Curiam. Rule refused (a).

[188] SARL AND ANOTHER v. BOURDILLON. Nov. 17, 1856.

[S. C. 26 L. J. C. P. 78; 2 Jur. N. S. 1208; 5 W. R. 196. Discussed, Mahalen v. Dublin and Chapelizod Distillery Company, 1877, I. R. 11 C. L. 91; Jones v. Joyner, 1900, 82 L. T. 769.]

The defendant went into the plaintiffs' 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 plaintiff's "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 "mosquitoshade: "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 cheque 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, (a) And see In re Sarah Woodcock, 1 C. B. 437, In re Isabella Grierson Perrin, 14 C. B. 420.

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