The Sun.
London, England, 1847-12-11 00:00:00

GNo. 173. •)28 ] LONDON sATuRDAY , E N N

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LAW INTELLIGENCE.
COURT OF COMMON PLEA S% Dec. 10.
(Sittings. at Nisi Prius before the LORD CHIEF-JUSTICE
and Common Juries.)
• • RUSSELL V.
In this case Mr. Sergeant Talfeurd and Mr. Lock
appeared. for the plaintiff, and Mr. Lush and Mr. Fitz-
patrick for the defendant.
This was an action brought under the statute the 3d
William IV., chap. 15, for the infringement of the plain-
tiff's copyright in a musical composition. The declara-
tion stated that the plaintiff had the solo liberty of re-
presenting and performing a' certain dramatic piece or
musical composition, called " The Ship on Fire," which
the defendant had wrongfully " caused to be represented"
at the Horns Tavern Assembly Rooms at Kennington.
There was another similar count, charging an infringe-
ment of a certain other musical composition, called " The
Gambler's Wife."
The defendant pleaded " Not Guilty."
Mr. Sergeant TA.LIOURD, in opening the case, said,
be had the honour of representing Mr. Henry Russell,
who had performed an entertainment composed for the
most part by himself, in the metropolis, and in many parts
of the United Kingdom. The plaintiff sought to obtain
compensation in damages for a piracy on his musical
compositions for the purpose of repressing such piracy.
On two occasions the plaintiff had visited America, and
had obtained there not only much popularity, but had de-
rived thence a portion of the materials with which his
entertainment was interspersed. The plaintiff's enter-
tainment consisted of a series of songs and anecdotes of
negro life. Mr. Russell had composed the music of one
of these songs, bearing the name of " The Ship on
Fire," in which the various incidents of such a calamity
were set to appropriate music, and represented by the
gesture and actiun of the person singing it. He had sub-
sequently composed another musical piece called " The
Gambler's Wife," and beyond cdntrovetsy• he lid.the
sole right of representing this composition. Some time
ago the plaintiff found that a gentleman named Smith
was tracking his steps, and taking upon himself to re-
present considerable portions of his entertainment, tak-
ing the title, th 4 music, and the words of his consposi
tions and adopting them as his own. Mr. Smith pre-
sented himself as Mr. Henry Smith from America, and
became a competitor of the plaintiff in representing
his own compositions. • Mr. 'Russell thereupon deter-
mined to assert his right to those compositions, for
which he had obtained considerable fame and profit ;
and also to prevent the loss of character of which he
ran some risk, in having his songs plagiarized by an
inferior performer.. The action was brought against Mr.
Briant, of the Horns Tavern, Kennington, for haying
caused this representation to take place at his house. In
February last a programme of Mr. Smith's perform-
ances at the Horns Tavern Assembly-rooms Kenning.
ton, was issued by Mr. Smith, announcing that the two
songs of the plaintiff would be performed by him. The
Assembly-rooms were capable of accommodating from
1,000 to 3,000 persons, and had a raised moveable stage
adapted to performances of a dramatic character. The
defendant on the evenings of the performance sold some
of the tickets, and took part of the money. It a person
so finding accommodation for a performer, and so acting,
was not to be considered as a person who "caused or
procured such representations,' the Act of Parliament
might be entirely evaded, as the person put forward to
represent a performance might be a man of straw, paid
night by night for acting. Before the statute of the 3d
of William IV., chap. 15, a wrong of this kind was
wi;hout remedy, because, although a copyright existed
in books, it was very doubtful whether it existed in
musical or dramatic works. The sth and 6th Victoria,
chap. 45, extended the period of copyright in dramatic
works to be the same as the copyright in buoks. The two
songs mentioned in the declaration were dramatic in cha-
racter, and clearly within the protectiou of the statute.
The plaintiff sought to recover a penalty of 40s. for each
infringement of his.right. The Learned Counsel then
said h should proceed to prove his case by calling his
witnesses.
The copyright of both songs was admitted.
William Last was called to prove that Mr. Russell
publicly performed both pieces of music The perform-
ance was of a descriptive character. There was a reci-
tative of some length before the " The Gambler's Wife."
The music described the striking of the hours past mid-
night whilst his wife was sitting up for him.—(The wit-
ness here imitated the gesture used in the performance,
amidst a geed deal of laughter.)
The Learned Junoe—ls that dramatis:
On cross-examination the witness sail " The Battle of
Prague' was not a dramatic piece, it had got no words
to

The Learned JUDGE—There is firing and clashing of
sword:, and wounding.
The witness's examination 'resumed—ro The 'kr-
menioui Blacksmith" was not a dramatise performance.
In witne,,s's opinion a dramatic piece consisted in the
word, end the music being taken together.
llis LonDsw—Thee every song is a dramatic piece?
Witnes--" The Sea" was not a dramatic piece, it
no deseriptive :natter about it; that was how he distin-
.guisbed it.

Mr. West, composer,- gave' similar testimony. Ile
had heard Me. Russell and Mr. Smith sing the songs
named .in the declaration. The music and words were
the ~atnle.

A Witness named King proved that ho knew Mr.
Briant's roomi, and that he had seen various perform-
ances there, the same as at some of the theatres. He
had scent and heard the Ethiopian Serenaders and the
Bosjestnan Indians there.

Air. Fox Cooper, manager of the Strand Theatre, had
tried to t81(e the liorns.liooms for theatrical perform-
ances. ll,tid keen the Bay adores perform there.
Cross-examined—What makes a piece dramatic?
Witnesf —The passion, gesture.' and working up of the
soul of the performer to represent to the audience the
composition.

The clerk to the plaintiff's' attorney proved having
sent a caution to Mr. Briant not to permit the perform.
ance of Mr. Russell's songs. .
Cross-examined—There was another action against
Mr. Smith for this performance.
This was the plaintiff's case.
Mr. Lusir, on the part of the defendant, objected, first.
that a musical composition was not within the Act. Se-
condly, that this case was not within the statute, because
only the music was the plaintiff's and not the words.
And, thirdly, that the Horns Tavel n was not a place for
dramatic entertainment within the meaning of the Act.
LORDSHIP took a note of these objections, and

Mr. LUSH then addressed the jury for the defendant.
He contended that the defendant had nothing to do with
the performance, but had an expensive room which he
was glad to let, and which he let to Mr. Smith on his
application. The Learned Counsel then 'read several
letters, setting forth an application for and agreement
to take the defenff.nt's room by Smith. On the receipt
of the plaintiff's caution, after this agreement had been
entered into, the defendant wrote to Mr. Smith, and re-
ceived an answer from his attorney threatening him with
an action if he did not fulfil his agreement.
The LORD CHIEF-JUSTICE said, this was no answer.
The defendant had no right to let his room for an un-
lawful purpose.
- Mr. Lust' submitted, that under the circumstances
the defendant had no more to do with causing and pro-
curing the representation of Mr. Russell's. songs by
Smith than any of the jury. All that Mr. Briant did
was to let his room, and afford such accommodation as
under the circumstances he was expected to afford. The
Learned Counsel then called

smith, the performer. lk sng the s.lngs
viit hoot gc:iture or dramatic action. Ile had no
bcf."l` him. lie did not sing Mr. umic.,
lie
mi9,ht. venture to that he had made the sung of
" The Ship on Fire" his own.
Cross-exa,rnined—Tlie words were in substance the
same, but the music was essentially different. He had
not a copy of his own music. fie played from memory.
Mr. .N. Briant; the xon of the defendant, proved re-
ceiving the threat of action if his father did not fulfil
his contract with Smith.

Mr. Sergeant TALFOUItII, in reply said, it would have
been more creditable in the defendant not to have called
Mr. Smith, the pirate, who sang what he was pleased
to call " his own music." Though he had none of his
own, he sat down voluntarily, and his thoughts volun-
tarily fell into harmonious numbers, and he happened
to-hit on the same music and the same words as the
plaintiff's songs. Mr. Smith had been making unworthy
attempts to avail him Self of the labours of another, and
the defendant had aided in those attempts.
His LORDSHIP; in summing up, said, the jury must
first consider whether the pieces were performed. One
witness had stated that the pieces, as performed by the
plaintiff and Mr. Smith, were. the same. The witness
Smith said of the music of one of the pieces, " lie might
venture to say he had made it his own." There was no
evidence to show how far Smith's music differed from
the plaintiff's, whether the whole or any part of it, or
whether ho had made it his own in the words of the
adage—

"Jack stole his discourse from the famed Dr. Brown,
But reading it damnably made it his own."
Secondly, they were to be satisfied that the defendant
caused and procured the performance within the meaning
of the statute. If the defendant had sanctioned by per-
mitting and finding accommodation for an illegal per-
formance, he must take the consequences. And, thirdly,
was this a dramatic performance? It it were. it was
enough to support the action, for the defendant's rooms
were then used for the purposes of a dramatic entertain-
meet.

The jury, after a short consideration, found a verdict
for the plaintiff on both counts. Damages 40i. on each
count.

Mr. Luau asked his Lordship to put to them the three
questions he had left to them separately.
His LORDSHIP did not think it necessary. The jury
had drawn their conclusions from them.

COURT OF BANKRUPTCY, Dec. 10.
(Before Mr. Commissioner EvANs.)
TRH DIAMOND TRADE.-IN RE EDWARD TIIIREY.
The bankrupt, who was a diamond merchant, in
Frith-street, Soho, came up for his certificate.
Mr. Cooke opposed on behalf of the assignees, to whom
Mr. Teague was the solicitor; Mr. Lawrence supported
the bankrupt.
The balance-sheet, which extends from February,
.846, to the date of the fiat, in April, 1647, contains the
following items:—Sundry creditors, 11,2411.; liabilities,
3,126/4 creditors holding securities, 6,5561.; profits,

2,8471. Upon the credit side the debts are estimatd
201.; the property, 1,8001.; there are houses mortgaged
to the extent of 1,0481.; losses, 3,1451.; trade expenses,
1,0372 Upon the same side of the balance•slieet there
an item—balance, I,lB2l.—explained during the progress
of [he case. •

Mr. COOKS opened, the case by stating that the bank-
rapt was originally it seal engraver, and subsequently
carried on business as a diamond merchant, in Frith-
street. In February, 1846, he fell into a state- of ad-
mitted embarrassment,, and then he made an application
to his creditors with.the view of effecting an arrange-
ment. On that occasion Mr. Blogg, of the firm of
Blogg and Martin, -Diamond brokers, was applied to
for the purpose of assisting him in inquiring into the
state of his affairs, and making an •arrangement with
his creditors. The bankrupt then drew up a statement
of the position Of his affairs, in which his debts and
liabilities were set down at 8,1121, assets,:B;Bso/. ; thus
showing him more than solvent to the amount of 7381.
He proposed to.pey off-.bid full bills of six, twelve, and
eighteen months, in equal instalments. All the credi-
tors consented toS LbiB proposition, with the exception
of three, Messrs. Hammel, Posus, and Caste, who re
(Tired security for the payment of the last instalment at
eighteen months. trim debts of those three gentlemen,
in the aggregate, amounted to .3,3G0!., and to meet their
reqaest Tibbey promise& to give them a promissory
note for 1,2001. from Major Moore, his father-in-law.
This note, which was to secure the payment of the last'
instalment, was to have been lodged in the hands of Mr.
Blogg, but that gentleman (lying soon after, on the con-
tinent, it was found that the security of Major Moore
bad never been deposi'ed with.him, but that the bank-
rupt had lodged it as security for advances at the
London and Westminster Bank, behind the backs of
the creditors ; only the first instalment of the' com-
position was paid, and Mr. Posus hearing that Major
Moore's note had not been d'eposited in Mr. Blogg's
hands, insisted upon security, add finally got a 6001. bill
from Major Moore to.aecure his town debt. 'Messrs.
Casto and Hamnaell htiel, at the time of the arrangementheld bills of thAankrupts, and it ,was understood` That
by giving the seeurity, of goderMoore for the 1,1001.,
that he' should bpferniabeds-Virh funds by the creditors
to retire them frets circulation as they arrived at matu-
rity. Messrs. Hammen and Casto supplied those'funds
and the bankrupts allocated them in themaimer proposed
without a word of dissent; but when all the bills had
been returned, the bankrupt said, " You have not pro-
vided me with funds to withdraw the bills at once, and
therefore I will not give up the 1,1001. security of Major
Moore." The Learned Counsel then detailed various
transactions in which the bankrupt was engaged at the
end of 1846 and beginning of 1847, allowing his embar-
rassment, and the exertions he made, by pawning jewels
and other property, in order to procure trona the West-
minsteritY, and three hills of
5001.
ea each,
Bank
whichth ehl,adlobo
been
security, e
ns
lodgedur in the bank, and
which had been -givei teribbey, a man who had been
a bankrupt, as -the renewal' of tin old debt. He had
also to call his Honour's attention to, the removal of
the bankrupt's furniture to Major Moore's dwelling
—a removal which the bankrupt did not ditelose
until after the choice of the assignees. But there
were circumstances still more heinous in the bankrupt's
conduct. He would first mention thenase of Mr. Ham-
mel', who was one of the assignees. In August, 1846,
the bankrupt applied to Mr. Hammen, to purchase
some diamonds for him, and Mr. Hammel' sold him
260/. of diamonds, for which he gave his bill, payable in
December. A few days before the bill arrived at ma-
turity, the plaintiff waited upon Hammel], and staid he
could not pay it. Mr. Hammen expressed his surprise,
and remarked that he had sold the goOds at cost price.
The bankrupt said he had not sold the goods, and
showed them to him. Mr. Hammen, upon the receipt
of 1001., consented to take two bills for the balance of
his debt, whiCh were unpaid. The Learned Counsel at-
tempted to show that the bankrupt had not accounted
for the diamonds sold to him by Mr. Hommell, and that
he had, in fact, concealed the property, but failed to
establish his charge. The next charge regarded Mr.
Price. Mr. Price is a jeweller and diamond merchant
in Hatton-garden. rsln August; 1846, Mr. Price called
on the bankrupt, who showed to him a large stock of
precious stones, such as diamonds, emeralds, rubies, opals,
Price sold him goods to the amount of 90l.; and, a day or
and turquoises, of great value. In October, 1846, Mr.
two after, precious stones of less value; and on the 6th
of December, in the same year, the bankrupt again caller!
on Mr. Price, and'obtained diamonds '•,to show a Freech-
man." -Twodays after the bankrupt brought back the
goods, and finally bought them at 189/. los., but never
paid for theta. After this last transaction a person went
into Mr. Price's shop, and offered to him for sale a por-
tion of the very same diamonds he had sold to the hulk-
rapt. The next case was that of Mr. Johnson, from whom
the bankrupt obtained, in January, 18 t 7, 300 pearls,
with other goods, value 871., upon the promise that he
was to pay in cash. Subsequently the bankrupt declined
paying in cash, but asked Mr. Johnson to take a bill for
the amount. Seeing that Mr. Johnson was not inclined
to pursue this course, the bankrupt produced a letter,
which he said was written to. him by Mr. Clark, the
manager of the-Union Bank, -add holding it in his hand,
so that Mr. Johnson might see the signature, said' that
the letter containedasn assurance from Mr. Clark, that
he would.discount the bankruptls bills Ito any amount.
Mr. Johnson therciikn agreed to take the bankrupt's
bill. It turned out, however, that no such letter had been
written by Mr. Clairlicwho, when asked about the mat-
ter, said he would not lend Tibbey to the 'extent of a
single shilling. Mr. Clark had written to Tibbey, but to
quite a contrary effect. The Learned Counsel next
called the attention of the Conn to the non-appearance
of a diamond necklace value 1,000/., which the bank-
rupt had shown to a creditor some months previously to
hie. bankruptcy, viz., in. January, 1847, and which was
nowhere to be found, and quite unaccounted for. An-
other instance of thd bankrupt's misconduct was his
having pawned a large- quantity' of. jewellery, &c., and
which was, in fact, the
property 'of the creditors, for
the purpose of depositing such an amount of property is
the London and
from
Bank as would enable him
to withdraw from thence the 1,1001. security of Major
Moore, thereby relieving his father-in-law of that re-
sponsibility. The Learned Counsel concluded by ob•
serving on the impropriety of those compositionS, which
generally elided in a manner most unsatisfactory to the
debtor and to the creditors, and by calling on the Court
either to refuse or suspend the certificate altogether.
The Learned Counsel then called several witnesses,
who established the cases of Messrs. Johnson and Price,
end that the bankrupt had, by false representations, and
whilst in a state of insolvency, induced those gentlemen
to give him credit.
After an able defence from Mr. LAWRENCE,
Hit
who had carried on the trade of a diamond
gave judement as follows :—ln this case
merchantthis iN
bankruptiand dealer in precious stones, applied for his
hisp u s
proposition,
o f several
certificate. In the year 1846 he sustained some severe
losses, and applied to his creditors to give him time for
discharging his debts. By his statement at that time he
made it eppear
.that he- was solvent, and that he would
hundredw heh
waspounds.
to
pay,The creditors
three
instalments, at six, twelve, and eighteen months, the
amotint of their claims. The creditors did not appear
ahgavreeead luor
to have examined,the accounts, and it appears to me the
bankrupt was incorrect, both as to the amount of debts
due by him, and the assets he had to pay them. I can-
net avoid expressing m
—ropinion that such arrangements
are generally disadvantageous bOth to' debtor and
creditor. The debtor, after years of struggling,
i. generally rJbli a to become a bankrupt, and the
creditors, who appear in some 04,4e5 to agree
to :Ana arratigernent, in the hope that the debtor
would satisfy their claims it full, by incurring now
debts, must find upon the whole, thee are not gainers by
such proceedings— The bankrupt was opposed upon
three grounds. First, that he had not delivered up the
whole of his property, but concealed a portion of it.
This point was pressed at the last examination, but I
was not satisfied with the proofs tendered and I still con
tinue of the same opinion. The fact that the bankrupt
values his stock at a large sum, and that the as,ignee
cannot obtain one-fourth of the amount, affords, no doubt,
grounds for suspicion, but not sufficient;
and if such
concealment can be proved, the certificate is nugatory.
I therefore dismiss that point from ray attention. The
second objection was, that whilst in knowingly insolvent
circumstances, he incurred debts with Mr. Johnson and
Mr. Price. Although creditors who wore parties to the
arrangement could not complain of the bankrupt's incur-
ring debts with them, yet. I consider that the debtor,
after such an arrangement, is noht.justified in contracting
such debts without disclosing
Johnsonasposition. However,
to Mr.
at the time the debtsand Mr. Price
were contracted, the bankrupt, .as it appears to me,
must have known that ho was hopelessly
insolvent, and
in these cases he appears to have told deliberate false-
hoods, in order, to induce those persons to give him cre-
dit. It was also objected to hinathat he promised three
of his creditors to give them additional security,
and in
order' to enable him to do so, he prevailed upon his
father-in-law to give security for 1,100/., and instead of
using the security for the purpose specified, he lodged it
with his bankers. I lay no stress on the bankrupt not
applying the note to the purposes of his creditors, who
ought to have taken care that the security was not only
lodged. There is
given but properly
no evidence that
lie committed any fraud Upon his father-in-law, but it
the bankrupt was •
does appear to me thats guilty of a
he when pledged
great dereliction of duty,
valuable
r-in-law to free his fath •
goods to his hrothe father-in law
from his responsibilitY in the 1,
to be a fraloolud. security. This
does appear to me to me on the creditors,
an offence deserving pun'shme nt.Under all the cir-
cumstances of the case I think justice will be adminis-
tered by adjourning the bankrupt's certificate for twelve
months.
Protection for one month was granted, on the appli-
cation of Mr. Lawrence.
IN EN THOMAS.
The bankrupt came up
to Pao his last examination.
blisher and advertising agent, in Catherine-
He was a pu
street, Strand.
The meeting was
further adjourned, as the accounts
were not in readiness.

WESTMINSTER COUNTY COURT, Dec. 10.
(Before Mr. D. C. MOYLAN, Judge.)
MILLER v. LORD DUDLEY STETART, M.P.
This was an action brought by John Miller against
the Noble Lord the Member for Marylebone, to recover
the sum of 54 for loss of time and services rendered to
his Lordship at the recent election.