The Sun.
London, England, 1847-05-14 00:00:00

LAW INTELLIGENCE.

COURT OF QUEEI4'S BENCH, May 13.
(Sittings in London, before Mr. Justice LILLE and a Common
Jury.)
"TILE SITIP ON FIRE"—RUSSELL v. SMITH.
This was an action brought under the Copyright Act to
recover from the defendant certain penalties for infringement
of the music and melody of a song, of which the plaintiff was
the author and composer. The defendant pleaded the gene-
ral issue.
Mr. Cooke and another Learned Gentleman appeared for
the plaintiff, and Mr. Watson, Q.C., for the defendant.
From the statetnent of the Learned Counsel, and the evi-
dence of Mr. West, Sir 11. Bishop, Mr. Purday, and others,
it appeared that Mr. Henry Russell, amongst other songs, &c.,
wrote and set to music the well-known song, entitled " The
Ship on Fire," which he sang with great applause at the
various concerts which he attended. In the month of Da-
cember, 1845, the defendant, who also is in the habit of giv-
ing musical entertainments, had one at Crosby Hall;
a place which is licensed for musical entertain-
ments, and, amongst other melodies, sang " The
Ship on Fire." This coming to the knowledge of the
plaintiff, some of his friends went to Crosby Hall, and they
there heard the defendarr sing the above song, using the
same words and music, and so great was the imitation as to
render it impossible to discover the difference between the
sirging of the plaintiff and defendant. As the composition
was original, an injunction had been obtained to stop the
defendant's singing the piece until a jury had decided whether
the composition was original or not. Had the defendant
applied for leave and license to sing the song, it would have
been granted; but ne such application had been made.
The several witnesses in their cross-exainination declared
that the music was quite original, and was not a copy or
imitation of anything known in the musical world.
Mr. WATSON addressed the jury for the defence, and said
that unless he coal! satisfy them from the plaintiff's wit-
nesses that the music was original, lie was afraid he must
fail to obtain a verdict. Certainly there was a song called
" Emelie," which had some bars of the same music, and
unless the bars in "The Ship on Fire " were copied front that,
he was afraid he must submit to the verdict.
Mr. Justice EnLE observed that tho various composers
who had been called declared the music to be original, when
the jury found a verdict for the plaintiff.
By this verdict no pers,n can sing the song without the
leave and license of the plaintiff.
Wednesday, May 12.
'Sittings before Mr. Justice Enrx. and a Common Jury.)

CUMMING P. INCE AND HOOPER.
Mr. CocxrtuuN (with whom was Mr. Nance) for the
plaintiff, stated that this was a proceeding by way of in.
terpleader, to determine whether a certain arrangement,
entered into by the plaintiff in the month of September
last, was a valid arrangement to be maintained against
her. The circumstanees of the case were these :
Mrs. Cumming, the plaintiff was a woman entitled to
certain freehold property, She was a person consider-
ably advanced in life, and was perhaps rather irascible
and impatient. Between herself and her two daugh-
ters, the wives of ;Messrs. Hooper ani lace, dill' rences
had arisen, and these persons had thought fit to apply
for a co:nmission of lunacy against their mother. This
commission issued on the 29th of July ; it lay for some
time without execution, but towards the middle of
August the parties proceeded to put it into execution.
The plaintiff had been put into a lunatic asylum as early
as the 13th of May, and she was brought up from that
place to be examined under the commission. On the
29th of August the investigation began, before Mr. Bar-
low,
the Commissioner, and after continuing fur four or
five days an arrangement was entered into. In con-
, sequence of that arrangement, the title-deeds of
the plaintiff were delivered up. It was to set aside
this arrangement that the present proceeding had been
instituted. In the first instance an action of tracer was
brought against the persons with whom the title deeds
had been deposited, but those gentlemen, who had no
interest whateser in the matter, applied to the Court for
a rule under the Interpleader Act, by which the persons
who w ere really interested iu the matter wt re brought
into court to litigate the matter with the plaintiff, and
an issue was framed, with a view to try whether, not-
withstanding the arrangement, the plaintiff was not en-
titled to the absolute and uncontrolled possession of the
title deeds of what was undoubtedly her property. That
she was entitled to them, he thought the jurors would
entertaist no doubt. The consent she had given to this
arrangement was not a free and voluntary consent. She
was under duress, which the existence of restraint and
the fear of continued abode in a lunatic asylum imposed
upon her. Under such circumstances, the law did not
allow a consent to be binding on the unfortunate party
from whom, by such means, it had been extracted. To
render valid any arrangement, freedom of consent to its
creation was necessary, and if it was created under cir-
cdcostances which showed that the party acceding to it
was not free, the law would relieve the party from it.
Mr. WATSON (with whom was Mr. MANISTY) f.ir the
defendants, here said that almost all, if not quite all, the
facts were incapable of dispute, and the question was
one of law as to the effect of them. Here the arrange-
ment wes entered into during the continuance of the in-
quisition before the Commissioners, and had been signed
by two Learned Counsel who represented the different
parties. The plaintiff had been at her own home all the
previous night. The issue here was, whether the plain-
tiff was entitled, notwithstanding the arrangement, to
the possession of the title-deeds, and was not a question
as to whether that arrangement had or had not been ex-
ecuted
under circumstances of duress. The issue did
not in form impeach the arrangement.
Mr. Justice ERLE—Your argument is, that the ar-
rangement is to be assumed to be valid in itself. 'Then
you want to know whether, notwithstanding this ar-
rangeinent, the plaintiff is not entitled to the possession
of the deeds. Is not that your point ?
Mr. WATSON answered in the affirmative, and ob-
served that the other side had opened a question of
duress, but that question did not properly arise on the
issue as now framed, and the fact of duress, if it existed
at all, waa answered by the other fact, that the ar-
rangement was made by the plaintiff after free com-
munication with and upon the advice of her attorney
and counsel.

Mr. Justice Enta:—Still the question will arise ; for
if they are treated as her agents, the question is whether
the duress prevented her from•properly and lawfully
constituting them her agents.
Mr. WATSON contended that that was a question not
of fact, but of law.
Mr. COCKBURN admitted that in fact the plaintiff had
consented to the arrangement, but insisted that she was
not in circumstances to give consent. She had been in
a lunatic asylum. She was brought before a Commis-
sioner ; it was true that she was allowed to go home for
the night, but it was under a promise to return the next
day, Mr. Haines, who anted for her, undertaking to
produce her ; and she did return, and was therefore
again in custody, with the influence of that custody
and her previous detention still operating on her mind.
It was agreed that the Learned Judge should take
upon his notes the circumstances that were admitted.

Mr. Justice Erle accordingly took from the statement
of Mr. Haines the following detail of the circumstances of
the case. The plaintiff was a person 69 years of age, the
defendants were her two daughters, and their two hus-
bands. She was taken to a lunatic asylum on the 12th
May, 1846. On the 19th July the pla'ntiff's husband
died. Ott the 29th July a commission in lunacy was
taken out. Notice of executing it was given on the 22d
of August. The plaintiff' was taken to a madhouse on
the opinion of one medical man. After three days' in-
quiry had taken place on the part of the promoters of the
commission, and two days' inquiry on the part of the plain-
tiff, an arrangement was proposed between the legal
advisers of the parish; this was proposed by Mr. James,
who appeared fur the commission, an adjournment took
place, the plaintiff was allowed to go home for one night,
Mr. Baines, who acted for the alleged lunatic, under-
taking to
a ncaoinufe es re
wax conference taking to produce her on the next morning. Mr. Haines
did produce her according to the understanding. She
attendedaii before the Commissioner and the jury,and then,
thenwithcross-examined
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in question was made, and was signed by the
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