The Express.
London, England, 1847-01-20 00:00:00

its terms. With regard to the last point, the Court thnught
that the statement of the specific rates hast not been mill-
ciently particular. There would therefore be judgmrnt for
the crown on the first and third points, and for the defendant
on the second.

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BAIL COURT.
Before Hr. Justice% Erle.
Ex PARTE SOLOMONIL—SORGRIIIES OF RAILWAY SCRIP.
—Mr. W. H. Cooke moved for a rule calling on Mr. Waller,
Inspector of the City Police, one Faulkner and one Fabian,
to show cause why they should not deliver a sum of money
which had been found upon the two latter persons when they
were taken into custody on a charge of forgery. It appeared
that the applicant, Mr. Solomon*, had been applied to by
a Mr. Richards, and had advanced to Faulkner and
Fabian two several sums of 2001. and 4801. in June
and May last, on the security of scrip of the Buck-
inghamshiro Railway Company, which had subse-
quently been discovered to he forged. When they were
taken into custody 10001. was found on them, and such por-
tion of the notes as Mr. Solemon.s could identify were retort d
to him, but there was still some of the money which he had
not obtained. Faulkner had been tried and acquitted at
the Central Criminal Court, and Fabian had absconded and
was not likely to return. Faulkner bad brought au action of
trover against Waller to recover the securities: an application
was made last term to Mr. Justice Patteson to stay proceed-
ings in that action till Fabian surreaderesl, hut itwas refu-ed,
and the parties referred to Mr Alderman Gibbs that he might
make an order for their delivery, which, however, he sfe-
elated to do. It was urged that in the ease of a prisoner l'to
hod been tried a judge had power to order restitution of pro
party, and here there was no probability of the prisoner ever
bang tried, and therefore the order might be made.—Mr.
Justice Erle said be was not willing to make an order of this
court, which the party might set at defiance. There was no
authority to show he had power to make such an order, and
if the party objected to the rule he should discharge it. 110
would, however, consult Mr. Justice Patteson before de-
ciding the matter.
Ton QUERN o. RUSSELL.—Quo WARRANTO.—Mr. Ser-
jeant Shee showed cause against a rule obtained by Mr.
Welsby calling on a Mr. Russell to show cause why he exer-
cised the office of Town-councillor of the borough of St.
Alban's. The only question was as to the majority of votes,
and whether the assessor had properly appointed a deputy.
After hearing Mr. Wclaby in support of the rule, Mr. Jus-
tice Erle directed the quo warranto to issue.

COURT OF COMMON PLEAS.
settings in Banos.
LEE O. SIEPSON.—DRAMATIC ENTERTAINMENTIL—CON.
STRUCTION OF THE ACT IN REFERENCE TO PANTOMIMES.—
CDOMENT.—This wee an action brought by Mr. Nelson
Lee against the Manager of the Liverpool and Birmingham
theatres, to recover the sum of 461., being the amount al-
lowed by act of parliament for twenty-three representations
of a pantomime called " Harlequin Battledore and Shuttle-
cock." The cue was tried at the Middlesex term sib
tiny', before Mr. Justice Coltman, when a verdict
for the plaintiff for the full amount claimed. Mr. Ws D.
Hill now moved fur a rule to show cause why that verdict
should not be set aside and a nonsuit entered on various
grounds, which will be found embodied in the judgment
given by the court. He contended that the act 3 and 4 Wil-
liam 4, chap. 15, which gave the plaintiff power to bring an
action, was a penal statute and ought to be most strictly
construed. In the enumerations of the various dramatic
productions which the legislature meant to protect, the
word "pantomime" was not included. The next statute for
regulating theatres was passed in the 6 & 7 Via., and in the
interpretation clause of that act the word " stage-play " was
defined as including every tragedy, comedy, farce, opera,
hurletta, interlude, melodrama, or pantomime, &c., which
works were forbidden to be performed without the consent
of the author or proprietor. There wee, however, no pro-
hibition against performing a part of a work. The act only
professed to protect integral and complete works. The " in-
troduction" to the pantomime, which the plaintiff claimed
as his property, could not have been performed alone, and
the whole of the harlequinade, as represented at the defend-
ant:A theatre, was original. The introductory part was pur-
chased by the defendant of a Mr. Debayes, and the former
had no knowledge of the manner in which the latter bad
ibeerane possessed of it. In support of these arguments the
learned counsel addressed the court at considerable
length, and cited numerous authorities. Hs submitted
that it would be making the " encouragement of litera-
-1 ture" a mere farce, to put pantomimes upon the same foot-
ing as the productions of that class to which such works as
" Ion" belonged ; and if it was sought to bring literary pro-
ductions into contempt, actions of this nature were not a
very inexpedient means of producing that effect.
'the Lord Chief Justice said the court was of opinion that
there should be no rule granted in this case. The first point
Meld by the learned counsel wan that the plaintiff ought to
beano-suited, on the ground that he had not satisfied an
undertaking into which he had entered, to produce material
evidence in the county of Middlesex. The evidence showed
that the property in question was offered ferule in that county
to the proprietor of a theatre ; and it appeared that on a pre-
vious occasion, the plaintiff had spoken of the pantomime
in the county of Surrey, that he held the piece in his hand,
and stated to a friend that he was the author of it. It was
stated, in behalf of the defendant, that the plaintiff, by this
evidence, proved himself to be the author of the piece, and
that the testimony which followed, relating to Middlesex,
was not material evidence, arising in that county. But the
plaintiff (continued the learned judge) might reasonably
doubt whether the counsel for the defendant would not
make very strong and cogent remarks upon this subject, sod
therefore the evidence arising in Middlesex was material, as
confirming the statement made in the county of Surrey re-
specting the authorship of the production. It appeared
from the confirmatory evidence, that a person was seen in
the county of Middlesex, in possession of a manu-
script containing the matter which he had previously
heard repeated in the county of Surrey. Look-
ing, therefore, at this evidence as confirmatien
of the proof given in support of the authorship, it was ma-
terial in that sense which satisfied the undertaking, and
went to establish a fact indispensable in the case. The court,
therefore, held that there must be no rule on the first
ground. The next point was, that the pantomime in ques-
tion was not a composition within the protection afforded by
the act of parliament. The statute professed to protect com-
positions, called dramatic pieces or entertainments, and it
was objected in the present case, that the piece did not come
under this elenominatinn, inasmuch as it was only part cf a
piece. The court was of opinion upon this part of the ease
that the production was complete, so far as the plaintiff was
concerned—it was complete as an introduction to the pantos
mime; and that it was valuable in itself, was proved by the
defendant's buying it. The composition was, therefore a
dramatic piece of that character Ind description wkish
the legislature intended to protect. The demo el
merit which might belong to the production was a
question the court could not enter into. It was sufficient
for the plaintiff to have proved that the piece came within
the meaning of the Act. In the next place it was objected
that the defendant had acted innocently in purchasing the
said pantomime, that he had no knowledge of the plaintiff's
fright, and that such knowledge was necessary to be proved
in order to enable the plaintiff to support the present action.
This argument was suggested by the fact that the statute
was a penal one, ant that no person could be held liable
under its provisions unless proved to be an " offender."
Upon this point also the court were of opinion that the
learned counsel for the defendant was wrong. The Act had
but one object, Tin, the protection of property ; and one of
the clauses enabled a party whose property had been injured
under circumstances like the present, to recover compensa-
tion fur such injury or to subject the offender to a penalty of
40s. for each night's performance. In what character won per-
son to make himself an "offender "—in what way ? Why, by
committing an infraction of the property of another man; and
that man was undoubtedly injured whose prorty was en-
trenched upon. If a man did an act which the legislature
expressly prohibited, pro hac rice he was an offender in the
eye of the law. It therefore seemed to him (the Chief
Justice) that the present piece came within the protection
of the statute, and that the scientio on the part of the
defendant was not material to entitle the plaintiff to that
protection which the law gave him. The next point raised
by the learned counsel was in arrest of judgment, and it was
contended that the declaration had not disclosed any cause
of action according to the terms required by the Act. It
averred that the defendant had caused the plaintiff's produc-
tion to be represented in a place of dramatic entertainment,
but it did not say (urged the learned counsel) that the rem-
untation was a public one. Now it was quite clear that the
words dramatic entertainment signified public exhibition,
and the plaintiff no doubt attached the same meaning to the
term as the legislature had done. He had sustained the
averment in the declaration by showing that the defendant
had exhibited his piece at some place of dramatic entertain-
ment, end this evidence came within the provisions of the
statute. On these grounds the court decided that the rule
must be refused.—Rule refused.
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EXCHEQUER CHAMBER.
Sitting in Error from the Court of Exchequer.
The learned judges of the Queen's Bench and Common
Pleas sat to-day at ten o'clock, in order to deliver jpdg-
meat in eases pending in error from the Court of Excheq\acr.
Paths e'. GREEN.-000D-WILL op BUSINESS.—COve-
KANT IN RESTRAINT OE TRADII.—DAMAORB
Mr. Justice Patteson delivered the judgment of their lord-
ships in this owe, which was an action of covenant brought
by the plaintiff below as the surviving executor of John Goa
nill, under the following circumstances Goenell and Price
being in partnership as perfumer', Price, in consideration of
2,1001., assigned to Gosnell his moiety of the good-will of the
trade and stock, and covenanted that he would not exercise
the same trade within the cities of London or Westminster,
or within 600 miles thereof, and for the observance of that
covenant bound himself to pay 6,0001. to °emelt by way of
liquidated damages, and not of penalty. To the declaratton,
which proceeded on a breach in London in this ease, the
defendant below pleaded non est factuni, and that the said
cities of London and Westminster, and the said distance
of 600 miles from the same, embraced the whole
kingdom of England, Wales, and the town of Ber-
wick on-Tweed; and nineteen-twentieths of Scotland,
and that the document was, therefore, void in law, as an m-
ime restraint of trade. To this the plaintiff below demurred
end, en argument, the Court of Exchequer held that**
beensik of the covenant in question, being assigned in the
&shred= to have taken place in London, and there being
two districts pointed out in the indenture, namely, the
"cities of London and Westminster, or 600 miles from the
game," within the former of which the covenant might
legally operate, though it might not in the other and larger
ease, the covenant was divisible, and the plaintiff below might
recover in respect of the defendant's, carrying on business
in the limited district, and, further, that he was entitled to
recover the whole sum of 5,0001. A writ of error having
been brought on this judgment, the case was argued in this
court, and time taken to consider. The learned judge having
stated the facts and points of the case to the above effect,
shortly intimated it to be the opinion of the court that the
Judgment I,lnw ought to lie affirmed MI al points. Judg-
ment accordingly.