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1% OE, DIALMAINE 0. BOOSEY 7 daotto produces document. Here it isin the possesion of the Court, ‘The Court wil noe fnpound the document to the hindrance of al juste Tar Lonp Cuixr Baron. I shoald be sorry to bo wo rash and prosumptous as to seek to overturn any decison of Lord Eldon, "No one has a greater respect than have for that learood Lorda respect. not formed on any recede, eoquaintance, but on tht of a whol le, As far ant understand that cane the dessin ie thin: that Be could not order the anewer, or that which contituted part of the anewer, of one defendant tobe read again another, upon stil at law brought by that oto: defen dant, "Tmay take the precaution of stating ths much in order ths the preseot cate tay not be drawn into's precedent upon al ces 1 think it will bo acon that the public inconvenience which is expected to aro from one way of deciding this quatton, would ronult equally from tho other. I si ta tbe moon be gaa, wil ive rn tn ow i of ay a fonder to"get a evidence incerta ease, fe may be ao; but I'do not know that "Cours of equity is bound by any dessin to lint ia power an to cuforing the Production of documenta. Look at the stato of the ease. ‘Several traders enter into En agreement, which i signed by them in common, and which stats that, having ond comin agi a catain o(QBT} avidin an bevig ma lscovery from that individeal ae to other persona, thay agree to make ‘ao of the dividende na common fund, to enable them to render the other partion lab sgrooment ie known amonget themselves ony, and they put i in free by bringing sn ‘ction inthe namo of one of themselves sgainet the present platy snd found againt then, Its suppooed that that verdict is incapable af bag but ehe preeont plaiatify file thor bill in oquty, and they fd this agreement signed by twenty or thirty persons all baving the sain intrea in tax tho person wbe by ens tin his pomensio, Astute that it a good defonos at law Ti» now i this Cour; the other pares have’ brought ther actions; and the plan in equity how eek the beneGt of tes agreement, which wee accidentally dicovered upon & Bi ed agin he party rho ough hw Sr wtio. I st that thi Cort tas no jutadiotion 10 orlor the profusion of ths agreement as against the other Plaintit at law, and that each of those nineteen plains may go on and recover tho fans verdad that th donna nw avon ea. Won gt i be ig on this Court to abut oat important evidence, and to dapoae of the rights indivKuals contrary to law! But it is exid, you may retara it-and then compel ita Production by a subpona duoes tecum.” Now we know that when a document is in The pooteaio ofthe plant it sin hia dacetion whether he ahal pode ft or no, ‘pon notice, and the defendant tnay reort to other evidenos it it be ack produced) bit it the party who has ies only a witness, and rofoses to. produce i you cannot sive copy ia evidence. To counaal for Sboppard who has produced tha document reno me oot to part with it; which eopsequenty leads me do believe that he would fc pron on Ss do cam Suppl wosll noe nd i ove tty of the partes; on the contrary, be would be earefal not to do [288] s0; and yet 1am fed Co lond rayelt to auppress a Gocument which might oover have come tight at al, but fora bil of discovery. Ta this cawo the plaioila in the dierent suite ave a common interest. Tho document derives no authority in consequence of coming from this Court Tt must ‘be proved by a witnens at law ; and tho party” who abjola to it profction may chjec before the judge at law.” But auppone fe were the cat of public company, Abd the clerk objeied to producing iin Court on tho ground tht it ooncainod ts titles of difarent persons‘ confess, I sbould aot think tba, while impounded bere, it would be 20 inaovamble that bo tan living should be’ allowed. to produce it ‘Aagooing, therfore, entirely with tho rule that you cannot read the easier of one defendant againat soother Vn the same cane, Ido nob ace that I should do justice, if I Tetusd the party th benefit of this paper in evidence Motion granted. D'Aumaine AND ANoTHxR ©. Boosey. March 3rd, 1835.—To publish, iu the form of quadriles and waltzes, the airs of an opera of which there exists an exclusive copyright is an act of piraoy.—The English assignee of the copyright of a foreign ‘musical composer is within’ the protection of the statutes relating to copyright. 118 DIALMAINE ¥. BOOSEY 1eoEr am, Somble, that a foreigner who resides and publishos in England, is within the like protection, (S.C. 41. J. Ex. Bq. 21. Distinguished, Bouczoultv, Chatterton, Sefforys v. Boosey, 1854, 4 H. L. Cas. 815.) Denis Ferdinand Esprit Auber, of Paris, in the early part of the year 1834, wrote ‘and componed a eortain book comprising the musie of an opera called Lastoeq, which ‘was first represented at Paris on or about the 24th of May in the same yea. By an indenture, dated in June in the same year, stamped according to the laws ‘of England, and made between Auber of the one’ part and the plaintifis of the other ts Aube, consideration of $L paid to hi (280) by the plan, ssgned to the plaintiff, their executors, administrators, and assigns, all bis copyright. in the beforementioned book, and the several air, ‘pieces, or compositions comprising. the music thereof, and the sole and exclusive right of printing, resprintiog, and publishing the same and every part thereof; saving and reserving to Auber and hie assigns the right and priviloge of printing, publishing, and vending, after the frst, publication thereof by the plaintiffs (ouch first publication not being delayed beyond the 15th of ‘aly then next), copies of the id book, and the airs or compositions comprising the tame, in Franco and Germany, or elsewhere, not bing any part or part of to united kcinggiom of Great Britain and Ireland, or any’ of the colonies or dominions thereof ‘About the 12th of June, 1834, the plaintifa, who carry on business in co partnership ‘as music sellers, gave notice in writing to persone connected with that trade, and, ‘amongst otbers, to the defendant, that they had purchased the copyright in the music (of Lestocg. On tho 16th of June they caused the book, comprising the music of tbe ‘whole opera, to be entered at Stationers’ Hal. On the 30th of June a like entry was made of the overture; and on the 23rd of July a like entry was made of tho airs. The overture was published by the plaintiff at their shop on the 30th of June, and the fire on of about the 23rd of July. In August the io published two sets of quadrille, arranged by Wheippert, from the same opera. ‘In the early part of the year 1835, the plaintiff discovered that the defendant bad published soveral of the airs of Lestoog, with some alterations, in the shape of quadrilles ‘and waltzes, ‘These publications were respectively called Musard’s 7th Set of ‘Quadrilles (Now Series) : Muserd's 58th Set of Quadrilles (New Series), and Musard’s 43nd Set of Waltzes. They were all described on the title page aa having been taken from Auber’s opera of Lestoeg, though arranged by Musard. [290] The plaintiffs having fled their bill against the defendant, praying for an ‘account of these several publications and of the profite arising from the aale thereof, ‘and for an iojunction to restrain the further aale, a motion was now mado for tbe injunction. In support of the plaintfe’ case, the afidavit. of Mr. Rodwell, an experienced snvsiin, wan read, With reference to the 57th act of qusdeiln published by the ofendant, he deposed that the second quadrille was #o completely similar to an air of the opera called “Gentille Muscovite,” that it was nearly note for note the same, even to the accompaniments; that the melody of the fourth quadrille waa like another air of the opera, with some variations in certain bare, which be specified ; and that the telody of the fifth quadrillo was contained in certain bars of the overture, which he speciied. With reference to the 68th set, he anid that the first quadrille was founded on, though much varied from, en air of the opera called “Le pauvre Ivan.” He men- tioned the several bars in which alterations had been made, and stated that in one instance there had been a change of key. He mado similar statemonte with rox to the other quadrilles and the waltzes; observing, however, that in one of the waltzes there wore sixteen bars which were not in the original air. "He concluded hie affidavit by anying, that although in several instances the music of the quadrilles in question ‘was slightly varied from the airs of the opera, yet auch variation was not more than in always found to be neceary when the mobic of an opera is arranged in the form "he defendant, by his affidavit, stated that in December, 1833, an agreoment was ‘entered into between him and Philippe Musard, a French subject residing at Paris, that the latter should supply the defendant annvally with a stated number of quad rilles, waltzes and galoppes, composed or arranged by him for the piano and orehestes, 4 [291] a» to uit the London season. ‘That the defendant bad no control over 1876, 4 Ch. D. 276. 1eomm D'ALMAINE 0. BOOREY 119 Musard a8 to tho subjects to be chosen, or the authors uy adios &c. should be founded ; and’ that he did not Know on what the samo were founded until they woro received by him from Musard ; thet the quadrilles and walteos in question were received by the defendant from Musard in pursuanoe of tho fore- ‘going agreement; and that tho formor were published by the defendant in November, fas. ‘The defendant further stated that the overtare to tho opera of Lestocg, as entered ty the plaintife at Stationer Hall'on the 20th of Jone, an sbrilgmeat arange ‘ent, or aapation ofthe overture ax composed by Auber; aod that ti altered, ‘arrange, end adapted as to be performed on the piano fore by one person td that {rs an entirely latinee work from the overture of Auber’ which laa mentioned composition ean only be performed by the united efortaof'« number of peroos performing on difarentioatcumanta, ‘That the defendants bali i, chat the Srertue 00 entered was not composed or arranged by Auber in the mode oF form in which it wan so publohed and entered by the plain, but that it wae 9 com tot eanged hy some cher pornon. ‘Tha hear whih were nerd bythe li on the 2351 of July were inike manner adapted forthe iano forte only. That the ‘fondant’ resvon for bolieving that the overare. and ais bad been arranged ‘by cher persone wes, hus the plain bad entered and published several otber ais from esteny which hed bean arranged by Adam, Kalkbrenner, and otbere ‘The defendant further stated that Auber composed only the music of tho sid opera in the form usually called and known as the seore, whith contains the whole of the mnunicto be used by al tho performer calletively with thir soveralintrumente. ‘That niveralyEnowo othe mune pfeil ho fas tate opera Lestoog, sa entered on tho 16th of Jung, i tho only one of the compontions Ait enon which wax compen by Aur imu to that the err er compositions aro only arrangements of adaptations, abd were composed hy othet omens. ‘That itv in tho usual eouree of trade to call auch eompoxitions by tie name Trarrangementa or adaptations; and that the persons who make or cotipoee them ‘su inferior dagron of taleut to the orginal compooor of tho opers, who, from rior talent, would not occupy his ime or attention pon auch e subject.” That the value of auch arrangements of adaptations depends entirely upon the talent ot sbilty of thearranger or adapter ‘has the arrangements and adaptations poblibed iy the plintite were not intended to be used far dancing; while, on tho contary, the defendant's publications wore expressly intended for that purpose. ‘Upon this last point the defendant als relied on afsdavitaof two other musicians, who sated that tho music of the plaintife publicaiopn wes adapted for tho, piano Tocte only, in whiob form it wan not intandod to be danced to; and thet, in iaos it Ind not chow necoeary brass and portions of melody which are absolutely noocesry to form a quadrle or, walts, whereas the objet of the defendant publications wat tho arrangement or adaptation of the musie of Lestooy, wo na to admit of the same boing danced to; and that in auch arrangement or adaptation a very considerable Ag fon i and apts osoary hat ce ma of te ail a sis ord i ery och ire Sih mooring Wo tho talent and the composer dr arranger of the me. ‘Wich reqpect to the time of the publication of te opera in France, the evidence swan contadlctory. ‘Tho plaintiff seied nis bale that no part ofthe opors was jublshed by Auber before the 2nd of July, 1894, about which timo it wat Ukowise sored ab the proper oflce at Pur. "The def208]fendant, on the coo ‘stored that, fro letore which ed received to that efec, be belived Publication in Paria had boon ® moath earier than tbe 2od of July. ‘Me, Twise for tho plintf. ‘Tho defendant stats that undor a previous agree- rent for that purpose be received the music in qustios from Mesrdy and that he bad no control ver Musnrd as tothe selection which, the Inter might make. ‘Tbe fact iy however that he hs waited to eo what would be moet popular and attract in the opera of Lestoy, and baa pirated all the choicest aire actordingly. It wil be ‘si ha orig autor eanos convey bis espyight ta an Eoginh sje oa fo ace the Englishman andor tion of the ats of Parlntant Iu Clement, Walter (2 Bete C. 861; 3 Dowl & yl. 602) it was eld that a foreign author, not ‘sing due diligenes for that purpose, cannot stop the publication of ie works in Enghod; but the Court decliaed to decide the question whether the act of publishing