#### Laura Keene, plaintiff and respondent, *vs.*John S. Clarke, defendant and appellant.

1. Where a court, in a former action between the same parties, had jurisdiction over both the subject and the parties, and the questions of fact upon which the plaintiff's title to the subject matter of the action depended were the same in both actions, and either were, or might have been, litigated in such former action, and were necessary to its decision; and the final hearing therein was upon the merits; the adjudication therein is *res judicata*as to every thing which was, or under the pleadings might have been, controverted in that action, whose determination was necessary for the final disposition of the case.

2. But if the complaint in a subsequent suit between the same -parties, omits to claim such former decree as an estoppel, even on those questions, it is very doubtful whether the plaintiff-can set it up in any other way than as evidence. *Per*Robertson, Ch. J.

3. The defendant in the subsequent suit, however, cannot set up that -the payment of a sum decreed in the former suit, to L j paid by way of indemnity to the plaintiff, conferred a license from her merely because the value of a license by her was made the measure of such indemnity.

4. The production of an arrangement of words, whether by writing, speech or printing, in any language, so as to convey some special ideas or thoughts, called a “literary composition,” gives to the producer of it an exclusive right to its enjoyment and use, until parted with to others or abandoned to the public.

5. The communication of such sequence of words by the producer, to other persons, by either speech, or a copy of them, renders it difficult to maintain such exclusive right without prejudice to the community. It is mainly to be protected by preventive remedies, and then only when an express or implied reservation of it accompanies such communication, and imposes a restraint upon the hearer or recipient, preventing him from divulging it; in other words, makes it more or less of a secret.

6. The delivery of a printed copy of such prodúetion may be made confidential, by a notice printed thereon, that it is for *private circulation*only. And a limited communication.of a literary or musical composition by private lectures, recitation, or its performance, will not amount to an abandonment of its proprietorship to the public, not only by reason of the supposed confidence reposed in the hearers, but also because of the retention of ownership implied from the smallness of the number of recipients.

7. But where such communications are indefinitely multiplied, so a’s to embrace an innumerable host of hearers, there is no great difference, in principle, between giving the composition to the public at once, or by degrees. So that where the audience is not limited, as in the case of a public theatrical performance, the public are held entitled to make use of that faculty which is necessarily addressed by such representation, to wit the memory, for the pur*39pose of repeating tlie contents of a drama, even in performing it elsewhere, ' when the owner has laid no restraint upon such use of the knowledge so obtained, and retained by memoiy only.

8. Where the spectators at a public performance of a drama have not entered into some express or implied understanding with its proprietor, limiting the use they may make of the knowledge derived by them from being present at such performance, they cannot be restrained, as to the use by them of so much of it as they can retain and carry away in their memory.

9. Such understanding cannot be implied as an ordinary term of admission to the performance.

10. But a right to take notes is not a privilege necessarily conceded by admismission to a public performance. The use of any such artificial aids to, or substitutes for, memory, may be restrained by a court as a violation of the terms of admission, or may be made a part of the police of the place of performance, so as to justify not only its prevention, but even the expulsion of the offender as a trespasser.

11. In an action for damages on account of the public representation by the defendant of a dramatic composition or play, whereof the plaintiff claims to be the proprietor, the defendant is entitled, if there is any doubt upon the subject, and it is essential to the decision of the issues, however slight the evidence or room for conjecture may be, to have the question submitted to the jury, whether the copy of such play used by him in its production was obtained from recollections of a performance. And it is error to withdraw the consideration of that question from the jury.

12. There must be some limit to the frequency of the repetition of theatrical representations of a play, the number of places at which, of persons before whom, and the period of time during which, it has been performed, before the owner will be presumed to have relinquished his rights to the public. The presumable intent of an act, or series of acts, which communicates to a number of persons the contents of a play, determines whether a surrender to the public was thereby accomplished.

13. Where such intent to make public is inferable from frequent and continued representations for a long time, the party authorizing them is estopped *from*denying it.

14. Where there is enough evidence to go to the jury upon the questions; whether the proprietor of a play has had it so frequently'performfed, for such a period, and at so many places, as to warrant the conclusion by every one of ordinary intelligence, that she did not intend to withhold the knowledge and use of it from the public, but to confine her expectations to the superiority of her mode of performing it; and whether, by such frequent performances, she had not enabled it to be so universally represented, by means of recollections originating in such performances, as to destroy her right; and whether the copy used by the defendant had been lawfully obtained by means of the recollection of representations given; such questions should be left to the jury.

15. In an action by the proprietor of a play to recover damages for its representation by the defendant, the latter should be allowed to prove the number *40of times and places, where performances were given previous to the time when he represented such play, although the objection to the testimony is' put upon the ground that the question is not confined to performances by the plaintiff’s permission; such evidence being material in establishing an ’ abandonment.

16. When the body of a literary work is made public, a right may exist in an individual to use accessories consisting of additions, changes and interpolations, not inserted in the manuscript' of the play, but constantly produced from memory by their author at the theatre of the plaintiff, and in like manner communicated by him to the defendant.

(Before Robertson, Oh. J., and Monem and Babbobb, JJ.)

Heard April 11, 1867;

decided-, 1867.

This was an action brought in December, 1865, to recover damages arising from the public representation by the defendant, at a theatre in the city of New York, of a dramatic composition or play, whereof the plaintiff claimed to be the proprietor. The complaint alleged that the author of such play (T. Taylor,) which was entitled “ Our American Cousin,” assigned it, and the manuscript thereof, to the plaintiff, together with the exclusive right of its performance throughout the United States and Canada, and to license its performance therein by others. That when so assigned, “ it had never been adapted to public theatrical representation, or printed, or publicly performed.” That its chief value lay in the exclusive right of public performance, and selling such right to others; and that the plaintiff has always kept such dramatic composition “ unprinted and unpublished,” and has derived great gains “ from the representation thereof by herself as an actress,” and “ the licensing of its use by others.”

Such complaint further alleged that the defendant, knowing the plaintiff’s rights, procured from a third person (Mrs. Chapman, formerly Silsbee,) a substantial copy of such dramatic composition, which she had no right to furnish. That from it the defendant caused such play to be represented on the stage of a theatre in the city of New York (The Winter Carden,) on several (twenty-four) nights in October, 1865, which play, so represented, was substan*41tially identical with that bo assigned to the plaintiff, and was announced hy the same title, and as written hy the same author; and that the defendant himself performed a principal part therein.

Such complaint denied any authority, license or consent by the plaintiff to the defendant, for such use of the comedy ; but alleged a prohibition by her of its performance, before the time when it was first so performed, and a persistence by( the defendant in performing such play by means of such manuscript copy, to her great damage. Wherefore she demanded judgment for the sum at which she fixed her damages.

The defendant’s answer denied the transfer to the plaintiff of the original manuscript of such play, and the grant to her of any exclusive right to its performance in the United States or Canada, or to license others to use it; and controverted its being Unpublished and not acted when transferred to the plaintiff. Such answer also denied the allegation in the complaint, that the plaintiff, ever since such «.transfer, had kept such play unprinted and unpublished; and averred that it had been “ published, by being publicly acted and represented in various theatres in many cities in the United States, by numerous actors and managers, for five years before the commencement of this action, and thereby dedicated to the public by such public representation ; and that the plaintiff had thereby ceased to be the literary proprietor thereof, or entitled to any literary property therein.”

The answer further denied that he ever represented, or performed in, the play of the plaintiff, as alleged in the complaint; but averred that a third person (J. Silsbee,) jointly with Taylor, composed a play of the same name, a manuscript of which he brought to the United States, and was the literary proprietor thereof; that the defendant bought such manuscript from the widow of such third person (Mrs. Chapman,) who was also his residuary legatee and representative; and as proprietor of such manuscript for five *42years before the commencement of this action, he caused such play to be represented from such manuscript, which is the same representation set out in the complaint; that he made, and other authors suggested, various alterations and improvements in, and additions to, such manuscript, whereof he was the literary proprietor. It further dfenied that he acted, or caused to be acted, any part of the plaintiff’s manuscript beyond that composed by Taylor and Silsbee, jointly, which was equally their property; or that he ever saw the plaintiff’s manuscript; and averred that he performed the play from that obtained from Mrs. Silsbee.

The answer, for a further defense, stated that in January, 1859, he and a third person (W. Wheatley) paid the plaintiff $500 for a license to perform such play, without restriction or limitation, as it had been acted at their theatre in Philadelphia in 1858; and that, in consideration thereof, she agreed that they should perform such play anywhere in the United States.

On the trial, considerable evidence was given of the performance of the play in question, altered and unaltered, at various places in the United States, the adjoining British provinces, and Australia, both by and without the authority of the plaintiff. Those places were: Washington, (District of Columbia,) Baltimore, Alexandria, (in Virginia,) Cumberland, (in Maryland,) Providence, (in Rhode Island,) California, Halifax, (in Nova Scotia,) and Australia. One witness, (Dyott,) who performed it under the direction of the plaintiff, testified that he saw it enacted at a great many theatres, because he traveled with her to a dozen. Another witness (Peters) testified that he had performed a. part in such play, since 1858, under the plaintiff’s management, quite two or three hundred times. A third (Andrews) who had played in it, under the plaintiff's direction, once or twice a week for two months, testified that he had seen it played at Providence, without the plaintiff’s permission, before she brought it out in New York; and also that three nights after she had done so, he performed in it there. He *43had himself seen it performed at the plaintiff’s six or seven times. The manager of the theatre at Providence (Barry) had played in it, and one or two other persons. They “ sat down together and made up the whole piece from memory,” when so performed at Providence. The same witness-had seen it performed at Washington from the defendant’s manuscript, and knew of its performance at Baltimore; in both cases without the plaintiff’s permission, and not under her management. He also saw it performed at Halifax, not under "the plaintiff’s management. A fourth witness (Stuart) testified that such play had been played all over the country, and the defendant had performed in it; both the plaintiff and Mrs. Silsbee had- claimed it. Another, (Tayleure,) that such play had been performed at various times and places, between December, 1860, and October, 1866, such as Baltimore, Alexandria, and Cumberland, where the plaintiff had nothing to do with the management of the theatres. Lastly, Mr. Jefferson, who performed in such play all through the country, Buffalo, Boston, Halifax and elsewhere, paying the plaintiff a per céntage of the profits, testified that it was first brought out by him in 1858; that he had performed in it in California, paying the plaintiff for permission to do so; but in Australia, when he played in it, it was public and unclaimed property.

The plaintiff’s counsel offered in evidence on the trial an exemplified copy of certain proceedings in a suit in equity in the circuit court of the United States for the district of Pennsylvania, commenced in October, 1858, wherein the present plaintiff was complainant, and the present defendant and a third person (William Wheatley) were defendants. The plaintiff’s bill of complaint in such suit set forth the composition of the play in question by Taylor, his assignment of the manuscript and right of copyright, and of performing the same in the United States or the Canadas to the complainant, a deposit by her of the title of such play, in pursuance of the United States laws, and *44her having caused the same to be performed in New York. Such bill also alleged that the defendants, as partners, had caused such play to be represented at a theatre conducted by them in Philadelphia without the complainant’s consent. That the defendants had seen the play performed at the plaintiff’s theatre, and inquired about its price, and the present defendant obtained from an actor in her employment the principal parts and language of such play, and that such defendants intended to repeat such performance. It, therefore, prayed for an injunction, account of profits, a delivery up of any manuscript copies, and a confirmation of the complainant’s title.

The answer of the defendants in that suit denied the exclusive authorship by Taylor of the play in question, and alleged the joint authorship of him and Silsbee, and the contribution by the latter of the conventional stage characteristics of Yankee dramatic persons, upon which its success depended. That Taylor transferred, for a valuable consideration, all his right and interest in such piece to the manager of the theatre in London, (Webster,) where it was rehearsed; and the latter, for a. valuable consideration, transferred it to Silsbee, who brought the manuscript, in 1852, to this country, where he died in 1855, in California. His widow, to whom.he had bequeathed his personal property, licensed the defendants in such suit to perform such play, and delivered to them such manuscript, and the defendants were then performing the piece under such license. The answer denied that Taylor was the owner of such play in September, 1858, or at any time since 1852, and that he had sold the same before the former date; also, the deposit of any title in the clerk’s office by the complainant. It admitted the non-publication of such play, denied the United States citizenship of the plaintiff and Taylor, and her ownership of such play. It admitted the performance of such play by the defendants at their theatre, but denied any prejudice thereby to the complainant’s performance in New York. It denied the identity of the two pieces, alleging *45various alterations in them, and also denied the procurement of copies of such alterations from Mr. Jefferson.

A decretal order was made in such suit upon a hearing, v referring the cause to a master in chancery, to ascertain and report, among other things, the nightly profits of the actual performance of such play at the theatre of the defendants,. and the pecuniary value of a license of the complainant to perform such. play, taking into consideration the price demanded by her therefor. Such order recited that the court was of opinion that the complainant had “no copyright in, or statutory right of, exclusive dramatic representation” of such play; but that as it had not been printed or published in any other way “ than by theatrical representations, and as the complainant’s own theatrical representa^ tions were not the means by which the defendants were fairly enabled to represent it,” their unauthorized theatrical representation of it was such an infraction of “her rights” as entitled her to relief; and that her proper pecuniary indemnity was the value of such a license by her, accompanied by a fair copy of such manuscript, as would have enabled the defendants to bring out such play, when it was performed by them, and “ represent it then and afterward-without restriction or limitation.”

The master to whom such reference was made, reported that $500 was the proper pecuniary compensation for the unauthorized representation, by the defendants, of the play in question; and the court, upon a second hearing on such report, decreed that the report be confirmed, the complainant recover such amount against the defendants, and that the same, with certain costs, be paid out of a fund deposited by the defendants in court.

On the trial of the issues in this action, a question to one of the defendant’s witnesses (Tayleure,) on his direct-examination, whether he knew “ how often and where ” the play in question “ was acted, between December, 1858, and the time it was played in October, 1865,” by the defendant was excluded, and an exception taken to such exclusion. *46The ground of objection assigned was, that the want of the plaintiff’s consent or acquiescence was not first shown. A question also put to one of the plaintiff’s witnesses (Jefferson,) on his cross-examination, how much he had actually paid the plaintiff when he performed such play, was also excluded, and an exception taken. The defendant’s counsel having moved to dismiss the complaint, upon the ground that the defendant was not responsible, as not being the manager who caused it to be represented, the court denied the motion, and the defendant’s counsel excepted. The court directed the jury to.-find a verdict for the amount proved to have been the defendant’s share of the net profits, to which his counsel excepted. The court refused a request of the defendant’s counsel to charge that there was no evidence that the plaintiff had sustained any thing but nominal damages, to which also the defendant’s counsel excepted.

The exceptions were directed to be heard in the first instance at the general term.

*Jerome BueJc, for*the appellant, defendant.

I. The plaintiff must fail, because she introduced no evi-" deuce to support the allegation in her complaint that the play remained unpublished, by printing or' otherwise, down to the verification of her complaint, to wit, December 6, 1865.

(1.) This was a material allegation, and the plaintiff was bound to prove it on trial. *(Fry*v. *Bennett,*5 *Sandf.*54. *McKyring*v. *Bull,*16 *N. Y. Rep.*297. *Prindle*v. *Caruthers,*15 *id.*425. *Rodi*v. *Rutgers Ins. Co.,*6 *Bosw.*23. *Safford*v. *Drew,*3 *Duer,*632.)

(2.) It was necessary, because publication of any sort is utterly destructive of literary proprietorship at common law. She relied on her common law right, not having alleged, or having, any statutory right. Literary property, at common law, is of so subtle and unsubstantial a nature, that it vanishes and evaporates from the instant of publica*47tion. (2 *Black.*406. *Bouv. Inst.*and *Bouv. Law Dict, titles Copyright and Manuscript. See also Randall*v. *Murray,*3 *Myl. & Craig,*711; *Millar*v. *Taylor,*4 *Burr.*2303; *Wheaton*v. *Grigg,*8 *Peters’ U. S.*856.)

There was evidence that this play had been widely published *prior to December,*1865, without reference to its licensing by the plaintiff.

(3.) Repeating any thing from memory is not evidence that the defendant had pirated the work itself. *(See*2 *Kent’s Com.*378.) It was not necessary for the defendant to prove the denial, contained in the answer, that the play remained unpublished until December, 1865, before the plaintiff had offered evidence to sustain her allegation in that behalf. That allegation is, substantially, that the play remained unpublished until December, 1865, by any person, whether licensed or not. The denial is as broad. The exclusion of evidence relevant to this issue, was erroneous.

II. The success of the plaintiff seems to have been solely due to the introduction of the record of the United States district court, in the suit between the plaintiff and two copartners, of whom the defendant was one; wherein the decree was rendered about six years before the trial of the present action. (1.) The plaintiff did not plead that record, but introduced it .as *evidence.*As such, it could prove nothing as to non-publication after the date of the decree. (2.) The adjudication in that action did not determine in favor of the plaintiff", that there had been non-publication, even up to that time, and a consequent literary proprietorship in her. It was not *res adjudicata.*(3.) The decree established nothing but the right of the plaintiff to claim, as exclusive property, the emendations, alterations, interpolations and suggestions of her employee actor. (4.) Relief was granted solely on the ground that the bill contained the averment that thé defendants “ obtained the principal parts and language from Jefferson, who was in the employ of the plaintiff. ’ ’ This complaint contains no such averment, and no evidence of such trespass was offered. (5.) The *48judge there expressly states: “ The .bill contains no averment of the use by the defendants of a copy of an unpublished MS.,” and relief as to that was denied. This complaint (in the aspect most favorable to the plaintiff) indeed contains such averment of the use of an *unpublished*MS. by the defendant; but no proof whatever has been offered in support of it. (6.) Relief was there granted, for the reason that “ the defendants asserted no right, except as derived under Silsbee.” In the present action, on the contrary, “.the defendant states that the said dramatic composition has been published, &c. &c. for five years before the commencement of the action.” The answer in the present action also contains an averment of a right, derived under Silsbee, which the defendant will clearly establish, if ever permitted to do so, on trial. (7.) And, in conclusion upon this point, it is submitted that the doctrine of *res adjudicate/,*could not prevail in the present action, by reason that the 'lapse of time and acts of the parties themselves had conferred different rights and defenses from those sought to be maintained and passed upon in the former action, especially as there is no identity in the two actions, either as to parties, or in the remedy sought.

HI. If the decree in the former suit, at Philadelphia, entitled the plaintiff to claim the benefit of the principle of *res adjudícala*upon the differences of the parties as to the subject matter, why is not the same principle obligatory upon her as to the mode of ascertaining the measure of damages ? In that case the court held the question of damages to be one *of fact,*and directed a master to find the value of a license. The master so found $500, although there had been ninety-five performances. In the present action there had been less than one fourth of that number of performances, and the verdict is nearly five times as great. Where matter becomes *res adjudícala,*it binds both parties. If not binding on both, it binds neither. (15 *Miss. Rep.*360.) (1.) The court below erred, both in refiising to hear evidence bearing upon the question of damages, and in *49holding the question of damages to be a *“*question of law,” and thereupon sending the exceptions to be heard in the first instance at general term. *(Code,*§ 265.) The form of action, before the Code, would have been *trespass upon the case.*(1 *Chitty’s Plead.*134.) It is also the form prescribed by the United States statute relating to the use of MSS. In trespass upon the case, damages are always to be assessed by a jury. (1 *id.*145.) The jury are proper judges of damages. (2 *Greenl. on Ev.*210. *Hewitt*v. Howell, 5 *How.*348.) In actions for damages *the jury*are required to assess the damages. To assess damages is to *ascertain*what damages are due. *(Bouv. Dict. title*Assess.) (2.) It assessed a sum not fixed by any pertinent evidence, and' much greater than the price fixed by the plaintiff for a license to perform the play indefinitely in a neighboring city, as appears from her own evidence. The amount of the verdict, ($2168.67,) includes sums not sued for. It embraces amounts not precisely known, received, as it appears, on two nights, to wit, September 30 and October 1, 1865, as to which there is no allegation in the complaint. The addition to the verdict of the uncertain amount of receipts for these two nights, for which the plaintiff made no complaint against the defendant, was improper. The alleged damages are special. They must be specially laid, and proven as stated. (1 *Chitty’s Plead.*396. *DeForest*v. *Leete,*16 *John.*122. *Dickinson*v. Boyle, 17 *Pick.*78.) (3.) Without this consideration of the two nights, the action of the court in so directing the jury was like directing it where trespass on the case would lie, *e. g.*in an action for breach of promise, to find $5000.00 against the defendant. In these actions for tort, a defendant has a right to a trial by jury. The Code has not deprived him of this. *(Code,*§ 253. *Bouv. Dic. ut supra.)*Section 265 of the Code does not, in any case, sounding in tort, and in which unliquidated damages are sought, authorize the judge to fix the amount of the verdict. The judge may “ direct a verdict,” *i. e.*which *50way it shall go; but he may not determine its amount. In actions on the case, the conduct of the plaintiff and the alleged misconduct of the defendant, (to say nothing of the question of damages,) are'for the jury. And the court cannot properly give peremptory instructions to the jury. *(Monroe*v. Leach, 7 *Metc.*274.) (4.) If' this verdict should be confirmed, the plaintiff obtains from the defendant, by depriving him of a jury trial, exemplary damages, in which are embraced the value of his study, genius and time, and the various attractions of his theatre. The court will not be eager to sustain such a verdict, especially since the plaintiff, (who has not alleged or proved herself a citizen or resident, as is required by the United States statute relating to owners of manuscript,) has no status in court, except through the adoption of a different rule from that prevalent in England, where “the final decision upon the much agitated question as to the common law right of an author, has excluded any other title in authors or their assigns, except that which they derive under these copyright statutes.” *(Eden on*Injunctions, 316.)

IV. The judge, at the trial, “ had no' power to direct a verdict, subject to the opinion of the court, exceptions having been taken by the defendant to the admission and exclusion of evidence.” *(Bangs*v. *Palmer,*16 *How.*542. *Bell*v. *Shibley,*33 *Barb.*610. *Sackett*v. *Spencer,*29 *id.*180. *Chambers*v, *Grantzon,*7 *Bosw.*414. *Purchase*v. *Mattison,*15 *Abb.*402. *Cobb*v. *Cornish,*16 N. *Y. Rep.*604.)

V. The rule of *respondeat superior*applies. .

(1.) Stuart was principal, and alone responsible; Clarke was employed by him, and only received a share of profits as salary; the former put up the play as represented; Clarke had nothing to do with putting up the play at his theatre. He-had no control over Stuart, as manager, when this play was put up ; it was no part of the agreement with which Clarke went into his employ that this piece should be pi’oduced, and he should act in it; Stuart knew the parts *51he played, and put them up as he thought them the most advantageous; when he employed Clarke, the latter did not know what piece was to be put up. The former cast the characters, and put up the play, as one of his stock pieces, entirely upon his own responsibility; Stuart, not .Clarke, was notified by the plaintiff not to produce the play. (See Stuart’s testimony.) ■ The complaint alleges that the defendant was playing a star engagement. (2.) The mere division of profits of the nights by a star actor, is only a mode of ascertaining his compensation, and gives him neither the rights nor liabilities of a partner. *(Ogden*v. *Astor,*4 *Sandf.*311. *Pattison*v. Blanchard, 1 *Seld.*186. *Heimstreet*v. *Howland,*5 *Denio,*68.) (3.) If Clarke was not a partner, can the mere employee, actor, servant, be liable for the act of his principal in bringing out and representing the comedy ? Then the door keeper, ticket seller, the candle snuffer, the property man, the leader of the orchestra, the subordinates, are responsible, as joint and several *tort feasors,*for the exhibition of a pirated play! A master is chargeable with the acts of his servant when done in execution of authority given him, and done under the principal’s direction, or in his service or employment. The servant is alone liable, where there is direct injury to person or property from his acts, not where the injury is consequential. *,(Lane*v. *Cotton,*12 *Modern,*488. *Middleton*v. *Fowler,*1 *Salk.*282. *Story on Agency, ch.*12, § 3081. *Story on Bailments,*§ 462.) Justice Grier, in *Philadelphia and Read. R. R. Co.*v. *Derby,*(14 *How. U. S.*187,) held that the rule of *respondeat superior,*or that the master shall be civilly liable for tortious acts of his' servant, is of universal application, whether the act be one of omission or commission ; if it be done in the course of the servant’s employment, the master is liable. *(Blake*v. *Ferris,*1 *Seld.*48.) (4.) Was Clarke a servant within the rule ? In *Anon,*(1 *Modern,*209,) it was held that, when an attorney sues for a debt which he knows to be released, and is himself a witness to the release, an action against him will not lie, for that which he does is'only as servant to *52another, and in the way of his calling and profession. In *Barker*v. *Braham,*(2 *Wm. Black.*866,) it was held that an attorney is not liable to the defendant for bringing action, ever so groundless or vexatious, for therein he pursues his instructions. (1 *Roll. Ab. action sur le case, T. Ford*v. *Williams,*3 *Kern.*577.)

*Wm. I). Booth,*for the respondent, (plaintiff.)

I. The exemplified copy of the decree in the suit brought in the United States circuit court of Pennsylvania, by the present plaintiff as complainant against the defendant, impleaded with one William Wheatley, as respondent, was *conclusive evidence*of her right of literary proprietorship of the comedy in question, as against the defendant in the present suit. On that point it-was *res adjudícala.*(1 *John. Cases,*501, 502.)

1. The United States Court was a court of competent jurisdiction, and the answer in that suit shows that it had jurisdiction of the person of the defendant. It was a final decision on. the merits, “having been heard on tfie pleadings and proofs,” and the. final decree made therein was duly enrolled April 4,1861, which decree was not appealed from, but on the contrary was acquiesced in, and the samé actually paid and satisfied by the defendants, and discharged of record.

3. The subject matter involved in that suit, and in the present, as to the question of title, and the paramount right of the plaintiff, was identical.

3. These rights were litigated in that suit and upon that litigation the plaintiff succeeded.

4. It has been held in this state that for the purpose of constituting a bar, it was not necessary that a decree in chancery should have been enrolled. ( *Winans*v. *Dunham,*5 *Wend*47. *Bangs*v. *Strong,*4 *Comst.*315. *Fort*v. *Burch,*6 *Barb.*76.)

*§.*The fact that there was another co-defendant (Wheatley) in the former suit, who is also bound by that decision, and *53estopped from controverting the same facts with the plaintiff a second time, does not render the former decision any the less conclusive against the defendant in the present, suit. *(Dows*v. *McMichael,*6 *Paige,*139.)

6. To show a matter *res adjudícala,*the bill, answer and decree, are sufficient evidence in a court of law. *(Packard*v. *Hill,*7 *Cowen,*434. *Sinclair*v. *Jackson,*8 *id.*543, 578. *Gardere*v. *Columbian Ins. Co.,*7 *John.*514. *Layburn*v. *Crisp,*8 *C & P.*404—408.)

7. The *satisfaction on the record,*was an act “ invested • with the sanctity of the record.” (7 *Wend.*35, *per Marcy, J.)*

II. The appellant claims that.the relief sought in the former suit was essentially different from the relief sought in the present, and that by reason of this difference, the former proceeding is not *res adjudicata.*This proposition is entirely untenable. In the former action in the United States Court, the bill presented two grounds for relief, viz. the right of protection under the statute of copyright, and the right of protection independently of all statute. As to the first ground, that court decided that the complainant had no statutory copyright; as to the second ground it decided that independently of all statute the complainant had a right of literary proprietorship, and on that ground made a decree in her favor.

1. In the present case the plaintiff has placed herself distinctly on the ground of her literary proprietorship of an *unpublished*drama, and claims the rights which have already been adjudicated in her favor, and demands damages for the infraction of these rights.

III. The defense set up, that the play had been published by frequent scenic representations, and attempted to- be proved, will not avail the defendant, because it was neither alleged nor proved that the frequent representations were with the *acquiescence of the plaintiff,*nor suffered by her under any circumstances indicating an *intention*on her part to *abandon her rights*to the public. Ho matter how frequently the defendant or others had *wrongfully*used the *54plaintiff’s property; she could lose no rights thereby, and no license could be presumed therefrom.

1. The scenic representation of the play by the plaintiff herself was not a publication, nor an abandonment of her rights, so as to vest the right to perform it in the defendant ; and it is not pretended that the defendant acquired the means of performing it, from having witnessed the plaintiff’s own representations. On the contrary, he alleges that he produced it by virtue of his own right.

2. The public representation of the play by the plaintiff was not a publication, so as to divest her of her right'of literary proprietorship. On this point it is not deemed necessary to cite any authorities; the opinion of the general term of this court, and the opinion of Judge Cadwallader in the case, fully cover this proposition.

. - IV. The pretended defense set up in the answer, that the defendant acquired the right to • play the comedy by reason of having paid $500 for a license, was entirely disproved. His own witness, Wheatley, swears that he paid it under the decree in the United States Court, and the satisfaction on the record corroborates that fact; and he admits that he did not have any license.

1. The decree and proceedings on which it was founded show for what purpose the $500 was paid, viz. *damages for the infraction of the complainant’s rights by the defendants at the Arch Street Theatre.*

V. The defendant’s counsel, at the close of the case, moved to dismiss the complaint on the ground “ that Mr. Clarke is not responsible in this action, Mr. Stewart being the manager who represented this play, and caused it to be represented.” This motion was properly denied, and the exception is not well taken.

1. The defendant’s counsel seemed to be under the impression that the rule of *“respondeat superior”*applied, but he had overlooked the allegations in .the answer and the issues tendered thereby; that Clarke was himself the proprietor of the play, and had himself produced it, and claimed *55the right to do so under *a,prior or paramount title*to that of the plaintiff*.

2. And it also appears by the evidence of Stuart, that the copy from which the play was performed was furnished by the defendant.

VI. From the preceding points it appears that the defendant was *wrongfully*performing the comedy of the plaintiff at the Winter G-arden, during the time covered by the allegations of the complaint; *and that from such performance he derived profits*to the amount of $2168.67. The only evidence on this point is that of Stuart, the manager, with a detailed statement of the receipts and expenses of the performance, which is wholly uncontradicted. On this question there was no conflict of evidence whatever.

Vil. It is next to be considered whether the judge erred in refusing to dismiss the complaint upon the ground that the plaintiff had failed to prove any damage.

1. Damages are presumed from every wrongful use of' another’s property.

2. In this case no vindictive or punitory damages are claimed or directed by the court; the amount being only that which the defendant actually received by the wrongful úse of the plaintiff’s property.

3. "It is to be presumed that- the plaintiff would have received an equal profit from her representation of the play under similar circumstances. It does not lie in the mouth of the defendant to say that would not be so.

4. The defendant *being a wrongdoer,*cannot derive benefit or profit from his own wrongful act; nor claim any increased value, or any advantage whatever, by reason of his own skill or ability, or popularity as an actor. (6 *Hill,*425, *n.*5 *John.*348. 6 *id.*168. 8 *Wend.*505.)

5. Therefore the proper rule of damages was the profits which the defendant received. This has been determined and adopted in a variety of cases arising under infringement of personal rights secured by patents and trade-marks. *56*(Wilbur*v. *Beecher,*2 *Blatch.*143. Hall v. Wiles, Id. 201. *Parker*v. *Banker,*6 *McLean,*632.)

(a.) There are cases where, by the act of the plaintiff, a uniform license fee has been fixed, and a license sold to everybody who applied; there a different rule of damages would be applied; but there is nothing in the evidence to show that is the case here; on the contrary, we show that its exclusive possession was its chief value.

(6.) The ground that may be taken by the appellant, that the measure of damages is the value of a license, is derived from a suggestion of Judge Cadwallader, and embodied in his decree. This may have been correct in that case. It is doubtless based on the theory that a patentee is benefited by the publicity and general use of his invention, or principle analogous to it. But here the value depends on' its exclusive use by the proprietor, and the profits which she should make by *her own*representations of it; besides, the rule in equity is different from the rule at law. *(Sed*gw*ick on Dam.*1847, *pp.*7, 8.)

(c.) A better analogy at law may be found in the following cases; where, in actions for trespass for working the plaintiff’s mines, the measure of damages was held to be the value of the material, without deducting the cost of working: *Martin*v. *Porter,*5 *M. & W.*352; *Wild*v. *Holt,*9 *id.*672; 1 *Dow, N. S.*876.

VIII. It was no error, therefore, for the justice to hold that the proper rule of damages was the profits received by the defendant from the wrongful use of the plaintiff’s exclusive property, by enacting that play at the Winter Garden, from the 30th of September to the 25th of October, 1865, inclusive. Any difference in dates from those alleged in the complaint are unimportant; were not urged upon the trial; do not affect the merits; do not exceed the plaintiff’s claim, and, therefore, do not constitute any material variance. The claim being for twenty-four performances, and the proof showing that there were only twenty-three.

IX. It was not error for the judge to direct the jury to *57find a verdict for the amount of the profits as shown by the uncontroverted statement of the manager, if the judge was correct in determining the right of the plaintiff to the play in question, the wrongful use of it by the defendant, and the proper measure of damages; for there was no disputed question of fact then remaining for the jury to consider; and he had power to direct the verdict to be entered, and order the defendant’s exceptions, as to matter "of law, to be heard at the general term. ■ *(Code,*§ 265.)

Robertson, Ch. J.

If the benefit of the decree in -the suit between the parties to this action, in the United States District Court for Pennsylvania, in equity, were properly claimed in this action by the plaintiff, it would bind the defendant, (as was held by this court when the case was formerly before it at general term,) as to the exclusive original authorship of the drama in question, and the priority of the plaintiff’s title thereto, by purchase from such author, to any derived by the defendant from or through Mr. Silsbee. The court had jurisdiction over the subject and the parties; the questions of fact, upon which such, title depended, were the same, .and either were or might have been litigated in that suit, and were necessary to its decision, and the final hearing was upon the merits. The decree made was, therefore, *res judicata*as to all things that were, or under the pleadings might have been, controverted in that action, whose adjudication was necessary for the final disposition of the case. But the omission from the complaint in this action of any claim of such decree as an estoppel, even on those questions, renders it very doubtful whether she could set it up in any other way than as evidence. The defendant, however, cannot set up that the payment of the sum decreed in that suit to be paid by way of indemnity to the plaintiff, conferred a license, merely because the value of a license was made • the measure of such indemnity.

The defendant, however, beyond the claim of paramount *58title to the literary composition in question, sets up in this action that the almost universal circulation of its contents, with the acquiescence, if not authority, of the plaintiff and every proprietor .thereof, amounts to such an abandonment of it to the public as to estop any of thejm from resuming and asserting an exclusive right to the theatrical representation of such drama. It is claimed that this is sustained in this case by proof of innumerable public representations, to numerous audiences, for upward of seven years, under the plaintiff’s direction, or by her license, (when her eonnectioii with [the performance would be less perceptible to the community;) or if without such assent, then so often since its original composition, fifteen .years since, and in so many places, including distant parts of the United States and Great Britain, and by so many persons, including some who performed it from memory, as to create a presumption, first, of notice of such performances to her; second, of her indifference thereto, by reason of her failure to interfere and prevent it, or otherwise interpose' a claim of right; and, finally, of her abandonment of all- exclusive right thereto. This makes it incumbent on us to discuss, the question so presented, as it was not raised in this action when formerly before .us at general term, or.in the suit in' Pennsylvania.

The production, or what is called in the civil law “ causing to exist *in rerum*natura,” of an arrangement of words, whether by writing, speech, or printing, in any language, so as to convey some special ideas or thoughts, called “ a literary composition,” gives to the producer óf it an exclusive right to its enjoyment and use. The ownership of the substance whereon such words may be written or printed, by authority of or by such producer, may constitute the physical evidence of such right, but is not its basis. The written letters, like spoken sounds, are but symbols of thoughts. The communication of such sequence of words by the producer to other persons by speech, or copies of' them, renders it difficult to maintain such exclusive right *59without prejudice to the community. It is conceded that it is mainly to be protected by preventive remedies, and then only when an express or implied reservation of it accompanies such communication, and imposes a restraint upon the hearer or recipient, preventing him from divulging it; in other words, makes it more or less of a secret.

A recovery of damages against strangers, wholly unacquainted with the ownership, although' receiving the knowledge of the contents of the composition from those who were bound not to betray them, would work great injustice, as the author or owner, who first furnished the means of invading his own right by the communication, would thereby be permitted to take advantage of his own wrong. For that reason an intent to abandon all private right has been inferred from the mode of communication. Printing being the means generally adopted for a widely diffused circulation, the delivery of a printed copy of a work to one of several subscribers, for even a limited edition of a work, has been held to surrender it to the public, although the delivery of a manuscript' copy would not. But such delivery of a printed copy may be made confidential, by a notice printed thereon, that it is *for private circulation*only. A limited communication of' a literary or musical composition by private lectures, recitations, or its performance, has been held not to surrender its proprietorship to the public, not only by reason of the supposed confidence reposed in the hearers, (4 *H. L. Ca.*965,) but also because of the retention of ownership inferred from the smallness of the number of recipients. But where such communications are indefinitely multiplied, so as to embrace an innumerable host of hearers, there would not seem to be a great difference in principle between giving the composition to the public at once or by degrees. So that where the audience is not limited, as in the case of a public theatrical performance, the-public are held entitled to make use of that faculty, which is necessarily addressed by such representation, to wit, the memory, for the purpose of repeating *60the contents of the play, even in performing it elsewhere, when the owner has laid no restraint upon such user of the knowledge so obtained, and retained by memory only.

A solitary decision in a suit in equity, *(Macklin*v. *Richardson, Ambl.*694,) upholds the right to restrain a person who has obtained a copy of a play from the recollection of a spectator at its public performance, from printing, or otherwise making use of it. But that decision was suspended to await the determination of a suit at law, pending at the same time, *(Millar*v. *Taylor, 4 Burr.*2303,) wherein the question of a copyright at common law was involved and settled in favor of its existence. But as the authority of that case, although followed in another case reported in the same volume, *(Donaldson*v. *Beckett, 4 Burr,*2408-2417; 2 *Br. P. C. Townl.*130; 17 *Cobb. Parl. Hist.*953,) was entirely overthrown by a subsequent decision in the house of lords, (4 *H. L. Ca.*815,) which has been followed in this country, *(Wheaton*v. *Peters,*8 *Pet.*591,) that of *Macklin*v. *Richardson, (ubi supra)*which rests upon it, must fall with it.

•We. are then without any authority to sustain the right of exercising any restraint over spectators at a public performance of a play, so as to debar them from using as much of it as they can carry away in their memory, in any way they may think proper, where its proprietor has not entered into some express or implied understanding with such spectators to the contrary. Such understanding cannot be implied as one of the ordinary terms of admission to the performance, because remembering, to a certain extent, is the natural consequence of hearing, and using such recollection naturally flows from possessing it. The right of taking notes is not one of the privileges necessarily conceded by a public performance, and the use of any such artificial aids to, or substitutes for, memory, may be restrained by a court as a violation of the terms of admission, or may be made part of the police of the place of performance, so as to justify not only its prevention, but even the expulsion of the offender. *(Macklin*v. *Richardson, ubi**61*sup.*2 *DeG. & Sm.*692. *Wood*v. Leadbitter, 13 *Mees. & W.*838.) The difficulty of remembering a whole play, from hearing it performed, may be an obstacle to its performance by others, but it can be overcome by repeated attendances and a subdivision of labor, as was established in this case. The law does not consider it impossible, as is evident by the adoption by Justice Buller, in the case of *Coleman*v. *Wathen,*(5 *Durn. & East,*245,) of the presumption, that a copy was obtained by such means, rather than from another copy, to prevent the incurring of a penalty. The violation of an udderstanding, however, by spectators, with the owner of a play, that they shall not make use of their remembrance of it to his prejudice, may be restrained upon the same principle as any other betrayal of confidence; such as the disclosure of the secrets of a business, art, trade, or mystery agreed not to be divulged. Such understanding might be created by indorsements on a ticket of admission, or notices publicly posted in the place of performance, or other modes. Such precautions are necessary to protect the exclusive right to an uncopyrighted production; otherwise they would stand on the same footing as if they were copyrighted.

The question then arises, what facilities did the plaintiff, or a prior owner, afford the defendant or others, to perform the play in question ? and not merely through whát means was he enabled to perform it. The partial copy used by him in its production, appears in the pleadings to have been obtained by him in 1858 from the representatives of a Mr. Silsbee, whom he claimed to have had a share in its authorship. If the statement in the answer, that the defendant purchased it from the widow of Silsbee, who, it alleges, brought it to this country, be disregarded as not proved, we can go no further back than Silsbee in tracing the title. He may have obtained it rightfully or wrongfully, by recollection of it, if it was performed, or, if not, by surreptitiously making a copy. There is no evidence, whether it was ever performed before it was brought here. It had *62been performed in British possessions without the plaintiff’s consent, and might have been performed in England, and written out from recollections of persons present at the performance. The defendant was, therefore, entitled, if there was any doubt upon the subject, and it was essential to the decision of the issues, however slight the evidence or room for conjecture, to have the question submitted to the jury, whether such copy was obtained from recollections of a performance. The presumption in favor of innocence laid down by Justice Buller, in *Coleman*v. *Wathen, (ubi sup.)*could then have been applied. It was an error, therefore, to have withdrawn entirely the consideration of that question from the jury.

But the issues presented by the pleadings and the range of evidence in the case, were wider still than the mere determination of the question, whether the copy used' by' the defendant was lawfully obtained; for in case the rest of the world had acquired the right of theatrical representation by other means, the defendant would not be estopped from using such copy. • There must be some limit to the frequency of the repetition of theatrical representations of a play, the number of places at which, of persons before whom, and the period of time during which, it has been performed, before the owner will be presumed to have surrendered his right to the public; otherwise we stumble on the absurdity, that a literary composition may be presumed to be private, although every living being is familiar with it. Unless that be so, the right would last forever, and be capable of being handed down to the most remote posterity, and thus be far superior to a statutory copyright. It is a. presumption of law, that every one intends the natural consequences of his acts, and the intent alone of an act, or series of acts, which communicates to a number of persons the contents of a play, determines whether a surrender to the public was thereby accomplished. No one. could travel continually over a country, reciting for years his compositions, and thus enabling every one to repeat *63them, without being presumed to have authorized them to do so. In that way ballads, now gems of literature, were anciently preserved, the descendants of whose authors, even .if they could be discovered, would hardly now be entitled to a literary proprietorship therein.

Such intent to make public is inferable, therefore, from such frequent and continued representations for so long a time, that the party authorizing it may be deemed estopped from denying it. Because the community can only judge from appearances; and it would be a snare to reserve a right by means of an- implied understanding, and yet do every thing to render the observance of that understanding unnecessary and useless. There must always be a tendency to the diffusion of the knowledge of the contents of a valuable literary tiomposition, beyond any limit set by its proprietor, and to their employment when communicated by him. It is incumbent upon him to check that tendency by the restraining power of courts, and otherwise, in order to preserve his rights. If he not only does not, but actually facilitates it, it would be a fraud upon the public, thus entrapped, to allow him to insist upon them.

The clear and forcible language of the learned judge, who decided the former suit between these same parties, (Cadwallader, J.) is even more applicable to endless repetitions of performances, than to a few, and I make no apology, therefore, for quoting it at length: “ The literary proprietor of an unprinted play cannot, after making or sanctioning its representation before an indiscriminate audience, maintain an objection to any such literary or dramatic representation by others, as they may be enabled, either directly or secondarily, to make, from its having been retained in the memory of the audience. * * The privileges of listening and retention by memory, cannot be restrained. When the audience is not a select one, these privileges cannot be restrained in their immediate or ulterior consequences.” But how much is such restraint to be diminished as the audience increases in number, when the *64representation, is brought to their own places of residence, and continued as long as enough audiences can be found in each place to support the expenses of the exhibition ?

The learned judge, already referred to, did not confine the right to repeat the contents of such play to a recollection of it by the defendant, from hearing it performed under direction of the plaintiff, but extended it to a recollection by others of the audience. He confined his decision, however, to two grounds. First, that, as a matter of fact, the defendant was not enabled to perform such play from the plaintiff’s representations; and, secondly, had used corrections, additions, and interpolations made by an actor in her employ. The defendant placed his defense entirely upon the ground of superior title to the original manuscript, which was decided against him on the facts. The evidence now adduced before us, of wide spread and long continued reiterations of the play in question, was not before the court, or considered on that occasion. It is true the learned judge seems to have placed the decision solely upon the ground of want of authority from the plaintiff, because the defendant’s performance was not from memory. But I apprehend that he would have hesitated long before making the defendant liable for performing from even a surreptitious copy of a production, of which others were everywhere diffusing the knowledge by representations derived from memory. I certainly should. How far is this license to perform from memory to extend? Every one of the audience at such reminiscential performance, of course, would clearly have a right to repeat it in the same way, and so on *ad infinitum.*There can be no limit to the diffusion of knowledge, once let loose, whether borne on the breath of individuals or the wings of the press, however inferior its rapidity by the former mode may be.

There was also enough evidence in this case to have gone to the jury upon the question, whether the plaintiff had not so frequently performed the play in question, for such a period, and at so many places, as to warrant the conclu*65sion of every one of ordinary intelligence, that she intended to surrender the knowledge and use of it to the public, and confine her expectations to the superiority of her mode of performing it. Or if she did not, then that by her frequent performances, she had enabled it to be so universally represented from recollections originating in such performances as to destroy her right. Also, that the copy used by the defendant was lawfully obtained by means of the recollection of representations given either by the plaintiff or some former proprietor. And such questions ought to have been disposed of by them.

The learned judge, to whose opinion I have before referred, seems to have thought that carrying away the contents of a drama by recollection was seldom resorted to, on "account of its difficulty and expense. The latter is merely that of a few nights’ attendance, and the difficulty is not very great, since the impressibility and tenacity of the memory is greatly increased by exercise, so that the “study,” as it is technically called, of an actor, enables him to perform a part when unexpectedly called upon, after á single reading. Each one only studies his own part, being guided in fitting it to the others by what are termed “ cues,” or catch words. The memory of such a confused mass is entirely technical, without being much guided by the sense, except in long passages. In this case it was proved that the play in question had been actually performed in Providence, (R. I.) after having been made up by several performers from memory. The play itself, or such of it as was written, was adapted to being easily remembered. It was short, originally being written in two acts, but was afterwards greatly curtailed in representation. It consisted of a plot, characters, situations and incidents; but the dialogues of the principal parts seemed to be almost entirely the creation of the performers. The part of a principal character (Asa *Trenchard,)*performed by the actor (Jefferson) who is charged with having communicated to the defendant additions made by him to it, was entirely altered *66from the original manuscript and changed, *impromptu,*nightly.

The copy owned by the defendant contained only the “cues” and the “mere skeleton” of that part. A dialogue was introduced by another actor (Andrews) to which the language of the part of the other speaker was modified by him to conform. The early history of the production, from 1852 to 1858, is n.ot before us. One witness found it, in the distant British possession of Australia, public and unclaimed property. Silsbee brought his copy from England, where there is no evidence of its having been performed, and sold it in its incomplete condition to the defendant, two years after the plaintiff had bought it from the author. It may have .been performed where Silsbee or some other person saw it, and prepared the copy bought by the defendáis. Its existence for six years unperformed, to be resuscitated by the plaintiff, would be strange. It may have been performed in England, and thence reached Australia. It was represented by the plaintiff two years before the defendant bought his manuscript, and Silsbee may have prepared it from the representations of the former. The burden of proof in that respect would lie with the former, after she had made it public, according to the decision in *Coleman*v. *Wathers,*already cited *(ubi supra.)*

Under the plaintiff’s direction, or by her license, the play in .question was performed more than two or three hundred times, and in a dozen theatres. In Brooklyn, Buffalo, Boston, Halifax (N. S.); in two theatres in Washington (Grover’s and Ford’s); in Cumberland and Baltimore (Maryland); in Alexandria (Virginia); and in California. It was performed during seven years, and at a great many theatres since the beginning of 1865. Between 1860 and 1865 it was performed at Baltimore, Alexandria and Cumberland, and at one theatre in Washington (D. C.) apparently without the plaintiff’s license. The defendant was prevented from proving the number of times and places where the performances were 'given between 1858 *67and-1865, when the defendant represented the play in question ; which was material in establishing an abandonment. The objection was put on the ground that the question was not confined to performances by the plaintiff’s permission. But, in fact, the more they took place without that, the proof became stronger of a relinquishment! To have allowed the diffusion of the knowledge to go on uninterruptedly, was nearly as strong evidence-of it as to have ministered to such diffusion by contant performance. The union of the two greatly increased their separate strength. Such question ought therefore to have been admitted.

Another question still remains, upon which the case also turns, in reference to the use by the defendant of additions, changes or interpolations, technically called “gags,” made by Mr. Jefferson in his part of *Asa Trenohard,*while in the plaintiff’s employ, and therefore claimed to be her property, and communicated by him to the defendant. This was noticed by the learned judge in his opinion before mentioned, in the suit in Pennsyvania between the same parties, where they were held to follow the ownership of the principal production as accessories, and to have been communicated to the defendant by a quasi breach of confidential relations. The question in that case being merely one of paramount title, the learned judge was probably correct in holding that the title to the accessories followed that of the principal. But if it was intended by that to hold, that although the principal was made public, no right existed of using accessories communicated in the same way by representations and memory, I should be reluctantly compelled to differ from that distinguished jurist. Such alterations as “gags” relate entirely to one part, and seem never to have been inserted in the manuscripts owned by either party; and were of course - constantly produced from memory by their author at the theatre of the plaintiff, and in like manner communicated by him to the defendant. No confidence or implied duty was broken, and no mystery of an art, trade, profession or business, unduly disclosed, where *68the same things have been constantly produced to large indiscriminate audiences, every member of which had a right to divulge it. The person who created the phrase should not be the only one to be excluded from repeating it. There could not be a legal padlock on his memory alone. He testified that it was customary for comedians to exchange any little advantages they may have gained in their parts, from one to the other. “ That he and the defendant were old professional friends, and had been associated together.” That he gave the latter “ such hints as *he*would no doubt have been willing to give ” the witness, who “ had received from him courtesies of the same kind.” He also testified that such alterations, consisting of *dialogue, business or fun, situations and acting,*were not in the manuscript from which the play was performed, as identified on the trial, and that he never gave the plaintiff any possession of them. Most of the “ gags ” introduced in another part *{Lord Dundreary)*on the plaintiff’s stage, were omitted in the defendant’s performance, until restored by the author of them (Andrews) who used them at both theatres. So that these interpolations were retained in the memory of their author, from whence they were drawn to benefit a comrade and professional brother, according to the customary courtesies of the profession. The acknowledged right of so transmitting them belongs, after representation, equally to them and the original production, which would be incomplete without some such filling up. Such communication of them, alone, gave the plaintiff no additional right of action.

There may be some hardship upon authors not entitled to the benefit of a statutory copyright, in compelling them to use very great precaution before they can make, and while -making, a profitable use of their productions. But the remedy rests wholly with the national legislature.

In this case the exceptions should be sustained, the verdict set aside, and a new trial had, with costs to abide the event.

Barbour, J. concurred.

*69Monell, J. (dissenting.)

The admissibility of the record of the judgment in Pennsylvania, having been declared in the decision of the former appeal in this case, it is not now open for examination.

The only question which appears to have been litigated on the last trial of this action, arose under the fourth subdivision of the defendant’s answer, in which it is alleged that the “ said dramatic composition has been published by .being publicly acted and represented in various theatres in many cities in the United States, by numerous actors and managers, for five years before the commencement of this action; and has thereby been dedicated to the public by such public representations; and that the plaintiff has thereby ceased to be the literary proprietor thereof, or entitled to any literary property whatever in the said play or dramatic composition.” Upon this issue evidence was given, that during five years preceding the commencement of this suit, the play of “ Our American .Cousin ” had been acted at many places in the United States, and at various times, in theatres with the management of which the plaintiff had no connection. It was also substantially proven that such acting was from a manuscript copy of the play, made up from memory, after seeing the representation at the plaintiff’s theatre. At the close of the evidence the defendant moved to dismiss the complaint, on the ground that Mr. Stuart, and not the defendant, was liable; and on the further ground that the plaintiff had failed to prove any damage. ' The motion was denied, and the defendant excepted. The court thereupon directed the jury to find, a verdict for the plaintiff, to which direction the defendant excepted. The exceptions were ordered to be heard, in the first instance, at the general term, and the judgment, in the meantime, suspended.

Neither of the grounds upon which the motion to dismiss the complaint was made can be sustained. The cause of action was. in the nature of a *tort,*for which a servant or agent is responsible as well as his master or principal, *70*(Boyce*v. *Dow,*8 *McLean,*582; *Becker*v. Cobb, 9 *Am. Law Rep. O. S.*547; *Goodyear*v. *Phelps,*3 *Blatchf. R.*91,) and it is, therefore, immaterial whether the defendant was acting under the direction of Stuart, the manager, or otherwise. In either case the plaintiff had her election to prosecute either, or both.

The proof of damage was sufficient to authorize the amount of the recovery. It was the defendant’s proportion of the net proceeds on the nights covered by the complaint, when the play was acted by the defendant, of which proportion there was no dispute.

The main objection, however, was that it should have been submitted to the jury, upon the evidence, whether the play had not been dedicated to the public by means of its public representation in various places, at various times, in theatres not under the management of the plaintiff, whereby she had lost her literary property in the play. It is sufficient, however, to say, in respect to this objection, that it is raised now for the first time, and it is therefore too late. It has been settled law in this state, as I understand it, certainly since *Barnes*v. *Perine,*(12 *N. Y. Rep.*18,) that it cannot be objected on appeal, that questions of fact ought to have, been submitted to the jury, unless the request to submit such questions was made at the trial. The point, therefore, which is now made, is not, in my judgment, properly before us, and cannot be considered. If, however, it was open to examination, I should find much difficulty in determining that upon the evidence there was any question of fact for the jury to decide.

I cannot concur in the opinion that the plaintiff lost her literary property in the play, merely because it was acted from a manuscript, made up from memory, at various times and places, without the sanction or knowledge of the plaintiff ; nor even if it was thus acted with her knowledge, but without her consent. I do not think the title to literary property is divested, or the right to its exclusive possession lost, by merely suffering infringements of such right to *71pass unnoticed. An owner is not obliged to involve himself in expensive litigation with every wrongdoer, for the purpose of preserving or protecting his right ultimately to assert his title; and certainly, without proof of some actual dedication, nothing that fall's short of a long-continued acquiescence in surreptitious performances of a play, would be sufficient to imply a dedication.

The infringements in this case, as disclosed by the evidence, were, as far as it appears, without the plaintiff’s knowledge, and certainly without her consent. I cannot, therefore, yield to the conclusion, that under such circumstances, the presumption could be justified that the plaintiff intended to dedicate her property in the play to the public. At most, to authorize such presumption, the surreptitious performances must have been so long continued, in so many different places, and under such circumstances, as to reasonably imply knowledge in the owner, and therefore assent; otherwise knowledge, coupled with such continued performance, must be affirmatively shown.

But I do not propose to examine the question further, for the reason, already stated, that if it was a question suitable for the jury, the attention of the court, at the trial, should have been called to it, and a request made to submit it to them. The defendant having failed to do so, it is now too late.

I am in favor of affirming the judgment.

New trial granted.