sort arises here. This is very like the common case of improvements in a machine, where the patent is taken out for an improved machine.(a)

It was further objected, that the plaintiffs should have shewn 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 subjectmatter 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.

(a) But, in that case, the

Rule discharged.

tween that which is old and

1849.

LEADER

บ.

PURDAY.

1849.

GELL v. BURGESS.

Jan. 13.

HIS was an action of debt.

A declaration THIS

in debt con

tained three

first on a bill

The first count of the declaration charged the defendant as the

counts, 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 10%., and therefore he brings his suit, &c."

of exchange, the second,

for money

lent, and the third, upon

an account

stated; concluding, to the plaintiff's damage of 101. &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, pay

The defendant, who was under terms to plead issuably,-pleaded, first, "as to the sum of 10s., parcel of the moneys in the said first count of the declaration mentioned, and also the sum of 10s., 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 10s., 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 10s., parcel &c. in the said first count mentioned, is one and the same, and not other than, or different from, the sum of 10s., 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

ment 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.

defendant paid to the plaintiff, who then accepted and received of and from the defendant, a large sum of money, to wit, 10s., 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, 507, 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 judgment if the plaintiff ought further to maintain his aforesaid action thereof against him." (a) Thirdly, to the second count,nunquam indebi

tatus.

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 (b), it ought to have done. Henry v. Earl(c) is also an authority to shew that a plea of payment, in debt, pleaded to the "causes of action in the declara

(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.

(b) 15 M. & W. 380.

(c) 8 M. & W. 228., 9 Dowl. P. C. 725.

1849.

GELL

V.

BURGESS.

1849.

GELL

v.

BURGESS.

tion 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 (a), 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. (b) [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 (c), 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 (7287. 6s.) 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

(a) 16 M. & W. 61.

(b) 4 N. C. 9., 5 Scott, 230.

(c) 9 Dowl. P. C. 270., 7 M. & W.562.

was the same identical bill as that declared on.
A re-
plication, denying that the bill mentioned in the plea
was the same identical bill, and concluding with a veri-
fication, 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 satisfac-
tion 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 (a), which shews 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 nonpayment 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 sum above demanded, or any part thereof;

(a) 8 Ad. & E. 673.

1849.

GELL

V.

BURGESS