which the assignment of the 11th of May, 1847, could operate. [COLTMAN, J. Has it not been held that an assignment of copyright must be by deed?] It must, it seems, be in writing-Power v. Walker, 3 M. & S. 7, 4 Campb. 8: But, though an intimation of opinion to that effect was thrown out by TINDAL, C. J., in De Pinna v. Polhill, 8 C. & P. 78, it has never been distinctly decided that the assignment must be by deed. [MAULE, J. Bellamy does not profess to assign the copyright by the agreement of the 24th of October, 1844.] It has repeatedly been held, that an agreement operates as a present demise, even where every line of the document points evidently to the execution of a more perfect and formal contract.

COLTMAN, J. It appears to me that there is no ground for granting a new trial in this case. The first question is, whether the plaintiffs were entitled to claim copyright in the whole “book,”—a musical composition, consisting of an "air," in which no person claimed copyright, certain words and prefatory matter, of which one Bellamy (under whom the plaintiffs claimed) was the author, and an "accompaniment," which Bellamy procured a friend to compose for him. It is said, that, as the "air" was not the plaintiffs' property, the declaration improperly claimed the whole combination. It appears to me, however, that no difficulty of that *sort arises here. This is very like the common case of improvements in a machine, where the patent is taken out for an improved [*15

machine.(a)

It was further objected, that the plaintiffs should have shown an assignment of the "accompaniment," by Horne to Bellamy. But I think it was not competent to the defendant, under the notice of objections which he gave, to raise that point. The words of the 16th section are express, that the defendant shall not at the trial be allowed to give evidence that the plaintiff was not the author or proprietor of the copyright, unless his notice shall specify the name of the person whom he alleges to be so.

As to the only remaining question, it seems to me that it was quite competent to the parties to enter into an executory contract for a future formal assignment of the copyright; and that these parties had clearly and unequivocally entered into such a contract.

I therefore think the rule must be discharged.

MAULE, J. I am of the same opinion upon all the points.

CRESSWELL, J., expressed no opinion.

V. WILLIAMS, J. I also am of opinion that this rule ought to be discharged. As to the first point, that the invasion is of the "accompaniment" only, that resolves itself into a question of pleading. If the subject-matter of the copyright is properly described in the declaration, the plaintiffs clearly have a right of action in respect of its infringement: and it seems to me that it is properly described. Rule discharged.

(a) But, in that case, the specification distinguishes between that which is old and that which is new.

*16]

*GELL v. BURGESS. Jan. 13.

A declaration in debt contained three counts,-the first on a bill of exchange, the second for money lent, and the third upon an account stated; concluding, to the plaintiff's damage of 102., &c.

The defendant pleaded,-first, as to 108., parcel of the moneys in the first and last counts (averring identity), payment and acceptance in satisfaction before action brought;-secondly, as to the residue of the first and last counts, payment and acceptance, after action brought, of 50., in satisfaction and discharge of the causes of action in the introductory part of the plea mentioned;"-thirdly, to the second count, never indebted :—

Held, that the second plea sufficiently answered the damages for the detention of the moneys mentioned in the first and third counts.

THIS was an action of debt. The first count of the declaration charged the defendant as the acceptor of a bill of exchange drawn by the plaintiff, payable to his own order; the second was for money lent; and the third, for money due upon an account stated,-concluding, "to the plaintiff's damage of 107., and therefore he brings his suit, &c."

The defendant, who was under terms to plead issuably,-pleaded, first, "as to the sum of 108., parcel of the moneys in the said first count of the declaration mentioned, and also the sum of 108., parcel of the moneys in the last count of the declaration mentioned, that the said account in the said last count mentioned, so far as the same relates to the said sum of 108., parcel, &c., in the said last count mentioned, was had and stated of and concerning the said sum of 10s., parcel, &c., in the said first count mentioned, and not otherwise; and that the said sum of 108., parcel, &c., in the said first count mentioned, is one and the same, and not other than, or different from, the sum of 108., parcel, &c., in the said last count mentioned: and the defendant further says, that, after the accruing of the causes of action in the declaration mentioned, so far as the same relate to the said sums of money in the introductory part of this plea mentioned, and before the commencement of this suit, to wit, on, &c., he the *defendant paid to the plaintiff, *17] who then accepted and received of and from the defendant, a large sum of money, to wit, 108., in full satisfaction and discharge of the said sums of money in the introductory part of this plea mentioned;" verification.

Secondly, "for a further plea in this behalf, as to the residue of the said first and last counts, actio inde ulterius non, because he, the defendant, after the commencement of this suit, to wit, on, &c., paid to the plaintiff, who then accepted and received of and from the defendant, a large sum of money, to wit, 501., in full satisfaction and discharge of the causes of action in the introductory part of this plea mentioned; and this he the defendant is ready to verify; wherefore he prays judg ment if the plaintiff ought further to maintain his aforesaid action thereof against him."(a)

(a) Vide 2 Lutw. 1177; 1 Com. Rep. 318; 4 East, 502; R. T. 1 Vict. reg. 1; Thompson v. Jackson, 1 M. & G. 242, 1 Scott, N. R. 157.

Thirdly, to the second count,-nunquam indebitatus.

The plaintiff signed judgment for damages on the first and last counts, contending that the second plea professed to answer the debt only, and not the damages.

MAULE, J., having made an order for setting aside this judgment for irregularity,

A. W. Hoggins moved to set aside the order. The second plea is pleaded only "as to the residue of the said first and last counts:" it professes, therefore, to answer only the debt in each of those counts, and not the damages for its detention; which, according to Lowe v. Steele, 15 M. & W. 380, it ought to have done. Henry v. Earl, 8 M. & W. 228, 9 Dowl. P. C. 725, is also an authority to show that a plea of payment, in debt, pleaded to the "causes of action in the *declaration [*18 mentioned," is not an answer to the damages; and that the plaintiff may sign judgment for any damages which are not answered by the plea. In Triston v. Barrington, 16 M. & W. 61, the plea was a plea of payment of a sum of money in satisfaction of all the causes of action in the declaration mentioned,—and it was held to be an answer as well to the damages as to the debt. [V. WILLIAMS, J. Is there no plea covering the whole declaration?] No. The damages are not covered by any plea: Lumley v. Musgrave, 4 N. C. 9, 5 Scott, 230. [WILDE, C. J. Is not the damage at the end to be read in each count? Suppose there had been only one count? MAULE, J. The count, properly speaking, is the whole declaration, from beginning to end, whether there be but one count, or several counts, popularly so called.] Where the plea acknowledges the cause of action, it should answer the damages as well as the debt: it may be otherwise where the cause of action is denied. [WILDE, C. J. I think it is quite clear that the plaintiff had no right to take upon himself to sign judgment.] In Wheeler v. Senior, 9 Dowl. P. C. 270, 7 M. & W. 562, a count in assumpsit stated that the plaintiff made his bill of exchange, which the defendant accepted, and that, before the bill became due, the plaintiff had parted with the possession thereof; and thereupon, in consideration that the plaintiff would again procure possession of the bill, and prevent the same from being presented for payment, the defendant promised that he would remit the plaintiff the amount (7281. 68.) on a certain day: the count then averred performance by the plaintiff, and a breach by the defendant. The latter pleaded, as to 6097. 10s., parcel of the said sum of money, that the defendant paid to the plaintiff 7007., in satisfaction of the sum of 6097. 10s., parcel of certain moneys specified in a bill of exchange, dated, &c., which *was the same identical bill as that declared on. [*19 A replication, denying that the bill mentioned in the plea was the same identical bill, and concluding with a verification, was held bad on special demurrer. But the Court also intimated an opinion that the plea was bad, for not alleging the money to have been paid in satisfaction of

damages. [CRESSWELL, J. Does the detention of the debt form part of any count?] Yes. [CRESSWELL, J. Then the plea does answer the detention of the debt. The plaintiff accepted the money in satisfaction of the detention.] Corbett v. Swinburne, 8 Ad. & E. 673, which shows that costs are included in the damages, serves to fortify this view. It would be a discontinuance to reply to this plea, if it does not answer the damages.

WILDE, C. J. It seems to me that this judgment was irregularly signed. The damages at the end of the declaration, must be supposed to attach to some complaint in some part of the declaration; otherwise there would be nothing to which it would be referable. The commencement of the declaration states that the plaintiff complains of the defendant,—who has been summoned to answer the plaintiff in an action of debt, and that he demands of the defendant a certain sum, which the defendant owes to and unjustly detains from him. The count then proceeds to set forth the grounds of complaint, and concludes,-" which said several moneys were to be respectively paid by the defendant to the plaintiff on request; whereby, and by reason of the non-payment of the said several moneys respectively, making together the sum above demanded, an action hath accrued to the plaintiff to demand and have the same of and from the defendant; yet the defendant hath not paid the said *20] sum above demanded, or any part thereof; *to the plaintiff's damage of 107., and thereupon he brings suit, &c." To what are you to refer that damage? Why, clearly, to the matters of complaint previously set forth. Suppose you were to sever the damages, and to apply them to each of the several causes of complaint,-the plaintiff would recover the several portions in reference to the matters charged in each count. The effect would be, to read into each count so much of the damages as are applicable to it. I therefore think this plea, which professes to answer the residue of the first and last counts, in truth answers all that substantially forms part of each of those counts, including the damages. The whole of the declaration should be read together. For these reasons, I think the judgment was improperly signed, and consequently that the order setting it aside was rightly made.

MAULE, J. Formerly, a count meant a declaration. Now, it means something that, standing alone, is a declaration. I think the "count," properly speaking, includes the whole cause of action, as well at the end as at the beginning of the declaration. The cases relied on are cases where the language of the plea excluded damages,-being pleaded to part of the money mentioned in a particular count. So, here, this plea would be bad, if considered as pleaded to a part of the cause of action in a single count.

The rest of the Court concurring,

Rule refused.

*SMYTH and Two Others v. ANDERSON. Jan. 18.

[*21

The right of the seller of goods to resort to an undisclosed foreign principal, is barred by any circumstance which shows that the enforcement of that right would operate injustice.

A., as agent of B., a merchant residing abroad, bought goods of C. At the time of the purchase, A. did not inform C. who was his principal; but the invoices described the goods as bought on account of B., per A." C. afterwards drew upon A. for the amount, at four and six months, but A. became insolvent before either of the bills arrived at maturity. B., after receiving advice of the purchase, and of the acceptance of the bills by A., made large remittances to A. on account of these and other goods; and A., at the time of his stoppage, was considerably indebted to B. :

Held, that, under these circumstances, it was not competent to C. to sue B. for the price of the goods.

Held also, that the above defence was admissible under non assumpsit.

Held also, that the books of C. were not admissible for the purpose of showing that B. had been throughout debited by him as principal.

THIS was an action of assumpsit for goods sold and delivered, for money paid by the plaintiffs to the defendant's use, for work and labour and commission, and for money found due upon an account stated. The defendant pleaded non assumpsit.

The cause was tried before WILDE, C. J., at the sittings in London, after Michaelmas term last. The facts that appeared in evidence were as follows:

The plaintiffs, Smyth, Cowan, and Pender, carried on business as commission agents at Manchester, under the firm of John Pender & Co. Smyth and Cowan also carried on business as merchants at Glasgow, under the firm of Alexander Smyth & Co.

The action was brought to recover a sum of 19607. 17s. 5d., being the amount of goods alleged to have been sold by the plaintiffs to the defendant, who was a member of a mercantile firm at Bombay, trading under the name of Anderson & Co.

It appeared that, in July, 1847, Pender, one of the plaintiffs, called for orders upon a house of great credit in London, carrying on the business of merchants and *agents, under the firm of Melville & Co., [*22 and who had, for a long time, corresponded with Anderson & Co. of Bombay. Young, a clerk in the employ of Melville & Co., on that occasion gave Pender an order for the goods in question, telling him that they were for shipment to Bombay, pursuant to orders which the firm had received. Young, who was called as a witness, could not undertake to say that the names of Anderson & Co. were mentioned at the time. But it was conceded that the goods were, in fact, ordered for Anderson & Co., and that they were shipped to and received by them.

A few weeks after the order was so given, invoices were sent in duplicate from the Manchester house of John Pender & Co., to Melville & Co., in London, who, retaining one copy, forwarded the other to Anderson & Co.

The first two invoices, which were dated the 20th of August, 1847,