CASES

ARGUED AND DETERMINED

IN THE

COURT OF COMMON PLEAS,

IN

Bilary Cerm,

IN THE TWELFTH YEAR OF THE REIGN OF VICTORIA.

The judges who usually sat in banco in this term were—

WILDE, C. J.

MAULE, J.

CRESSWELL, J.

V. WILLIAMS, J.

Ex

parte ELIZABETH TAYLOR. Jan. 11.

The court will not grant a rule to enable a married woman to execute a conveyance without her husband's concurrence, under the 3 & 4 W. 4, c. 74, s. 91, upon a mere statement that the husband, a seaman, has gone abroad, and has not been heard of for some years, and that the wife has been informed that he is dead. The affidavit must show some reasonable ground for presuming the statement to be true.

BYLES, Serjt., moved for a rule, under the 3 & 4 W. 4, c. 74, s. 91, to enable Mrs. Elizabeth Taylor to convey her interest in certain property, to which she claimed to be separately entitled under the will of one Andrew Witham, deceased, without the concurrence of her husband. *The affidavit upon which the motion was founded, stated that the [*2 deponent (Mrs. Taylor) was married to one Archibald Taylor, on the 9th of July, 1843; that Taylor, who was a seaman, in March, 1845, left England for Honduras, on board a ship called The Demerara Packet; that since he left England, she had only twice heard from him,—the last time being within twelve months after his departure; that the deponent had been informed that her said husband died in the early part of 1847, of the yellow fever, whilst employed on board a boat in Notta Bay, in the island of Jamaica, and that his body was thrown overboard, but that the deponent was unable to prove his death; that she had never heard,

or had any tidings of or from her said late husband, since the time when she so heard of his death as aforesaid; that she was unable positively to state whether he was still alive or not; but that, if he was still living, she did not know, nor had she any means of ascertaining, where he was then residing. [WILDE, C. J. The deponent does not state from whom she received the information about her husband's death in Notta Bay, or that she believes it to be true: nor does it appear that any inquiry has been made of the owners of the ship in which he sailed.] To bring the case within the clause in question, it is not necessary to show the husband dead. It is enough if it appear that his residence is not known. [WILDE, C. J. The same may be said in the case of every man who goes to sea. MAULE, J. The affidavit does not show when the information of the husband's death was received by the deponent: it may have been only yesterday.]

WILDE, C. J. The affidavit is much too loose to warrant the court in granting a rule. You may renew your application upon better materials, showing when, and from whom, the information of the husband's *death was received; and the deponent must allege her belief of its truth. The fact may be ascertained with reasonable certainty, by addressing an inquiry to the owners of the ship.

*3]

Byles, on a subsequent day, renewed his motion, upon a further affidavit of Mrs. Taylor, stating that one Harrison, a seaman, who left England on board the Demerara Packet with her husband, called upon her in the month of April, 1847, and informed her that he had just returned from Notta Bay, and that her husband had died there of the yellow fever about a month before he (Harrison) left that place, and that his body was thrown overboard; that Harrison on that occasion gave the deponent certain articles which had belonged to Taylor at the time of his death; that, when her husband left England, she received from him what is called a "half-pay ticket;" that she accordingly obtained from the owner of the ship the half of her husband's pay for the second month after his departure; but that, when she applied for the third month's half-pay, she was informed that Taylor had deserted. There was also an affidavit showing inquiries made of the owner of the Demarara Packet, the answers to which tended to confirm the proba bility of Taylor's death.

Per curiam. Enough has now been done to justify the Court in granting a rule. Fiat.

*4]

*LEADER and COCK v. PURDAY. Jan. 11.

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 proprietor of the copyright in the whole composition. In an action by A., for the infringement of copyright in a musical composition, consisting of an "air," which was old and not the subject of copyright, of "words," which were written by B.,

and an "accompaniment," which was composed by C., at the request and for the benefit of B.: Held, that it was not competent to the defendant,-under a notice of objections stating merely that A. was not the owner of the copyright, and that there was no subsisting copyright in the work, to object at the trial that there had been no assignment by C., even though the point arose upon the evidence produced on the part of the plaintiff.

A., the author of a musical composition, in October, 1844, agreed in writing, not under seal, with B., for the sale of the copyright therein to him, undertaking to execute, when called upon, a proper assignment to B., his executors, &c., or as he or they should direct:-Held, that this did not operate as an assignment to B., so as to render inoperative a subsequent regular assignment by A. to B. and C.

THIS was an action upon the case for an infringement of the plaintiffs' copyright in a musical composition.

The declaration stated that there was a subsisting copyright in a certain book, to wit, a musical composition called "Pestal," and that the plaintiffs were proprietors of such copyright, and had printed and published for sale, and had sold, divers copies, &c.; that the defendant, after the passing of a certain act passed in a session of parliament holden in the fifth and sixth years of the reign of Her present Majesty, intituled, "An act to amend the law of copyright," knowingly, and without the consent of the plaintiffs, so being the proprietors of such copyright of and in such book, first had and obtained in writing, in a certain part of the British dominions, to wit, Great Britain, printed and caused to be printed and published for sale divers copies of the said book, in which there was such subsisting copyright, and of which the plaintiffs were such proprietors as *aforesaid, contrary to the form of the statute in such case made and provided, &c.

[*5

The defendant pleaded,—first, not guilty,-secondly, that there was not any subsisting copyright in the said book, or any part thereof,— thirdly, that the plaintiffs were not the proprietors of the alleged copyright. The defendant had given the following notice, under the 5 & 6 Vict. c. 45, s. 16,(a) of the objections on which he intended to rely:-"First,

(a) Which enacts, "that, after the passing of this act, in any action brought within the British dominions against any person for printing any such book for sale, hire, or exportation, or for importing, selling, publishing, or exposing to sale or hire, or causing to be imported, sold, published, or exposed to sale or hire, any such book, the defendant, on pleading thereto, shall give to the plaintiff a notice in writing of any objections on which he means to rely on the trial of such action; and, if the nature of his defence be, that the plaintiff was not the author or first publisher of the book in which he shall by such action claim copyright, or is not the proprietor of the copyright therein, or that some other person than the plaintiff was the author or first publisher of such book, or is the proprietor of the copyright therein, then the defendant shall specify in such notice the name of the person who alleges to have been the author or first publisher of such book, or the proprietor of the copyright therein, together with the title of such book, and the time when and the place where such book was first published; otherwise the defendant in such action shall not, at the trial or hearing of such action, be allowed to give any evidence that the plaintiff in such action was not the author or first publisher of the book in which he claims such copyright as aforesaid, or that he was not the proprietor of the copyright therein: and, at such trial or hearing, no other objection shall be allowed to be made on behalf of such defendant, than the objections stated in such notice, or that any other person was the author or first publisher of such book, or the proprietor of the copyright therein, than the person specified in such notice, or give in evidence in support of his defence any other book than one substantially corresponding in title, time, and place of publication with the title, time, and place specified in such notice."

B