The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1842-01-30
Ia Chancery.
Before the Assistant Vice Chancellor.
Valentine mott VS.. James A. Houston.
tlth Ystl,


cause was presented 70 me as injunction MASTER and
allowed the writ condition that the complainant
mater eromntly heard that Il might Ne dissolved Il the
complainant appear not entitled to it, II has now been
fully argued by counsel II is in effect motion by con-
sent Tor Continuance Of the injunction
The Bill the appointment Of the complainant as
professor Of surgery in the University Of the city OF New
York the object being the instruction of students and
Others who should and pay the fees in that branch
Of science, by Of lectures That intending to
deliver the lectures extemporsneousy and being desi
with view TO sad publication by him. he ne
sotated wtkthe defendant and about the I'd Of Novem
Der in the lS4i they agreed upon certain article
Of memoI andum of agreement as follows
"ASaxEMEHr"
-EcvsToR, M. d, agrees to furnish to valentine
MsIT, NJ batim and exact report OF each lecture
the of Surgery, with surgical and pathaIo
gca anatoHy as delivered by the aforesaid DR. MSrr
during the session of University OF New
York, 1912 The report of each lecture, fairly writ
ten out alternate pages to be handed to Dr. Morr one
week after delivered and said report to be approved
ofby DR. Morr and the guar antees
to DR.. Morn that copy other than that given TO Dr.
Morr. shall be furnished published by Dr. Housros,
and Dr. Eousros the performance OF the
above the sum Of twenty five dokars to be paid weekly
1t is stated that this memorandum wGs signed by the
complainant but the defendant, because OF
larger compensated which, after little
hesitation, assented to- is expressly aledged that
the defendant asssned the stpvaons and
expressedin the paper The delivery Of certain num-
eleven manuscripts is set forth, signed by the defendant
is then charged that the defendant had published ia
the LANCET, EDITED MIN,
ysis of the first Lecture full, and in most instances
verbatim statement Of the second Lecture and the fourth
Lecture in dall The complainant then addressed note
to the defendant insisting that he should not publish
ofthe lectures advertng to the contract and
the defendants knowledge of his inventions pub
lash. The bill also charges the announcement of an in
tsntion TO continue the publication Of the lectures.
seeks an against this the delivery Of the
ports according to the contract, and general relief
The affidavit defendant as to the alledged agree
meat, is this-That he has vague recollection Of
me.aorandum in writing being handed to him. which he
n md rptu md he gtuta
contents or substance the only part which impressed
itself on his memory to the price, which not being
attention the other parts, any there were, such
randum. He 10 unable to state whether the
seeSSan m ,ns D coPy OF not Sd
to avail himself Of the notes he should take Of such lee
but the agreement was that this deponent should
deliver copy Of each lecture to the complainant for five
dollars. HaH
Upon question ofthe continuance or disposition Of an
injunction the positive and material of the
bill must be distinctly by affidavit answer The
Court Is bound to reconcile statemants il upon just
construction practicable where the result
mast be perjury in the the other party Ifths eff
dav that the defendant agreed that copy
should be furnished Published other than that given
to Dr. MoTr then the statements in irreconciable
hostility The complainant expressly con-
dions exPressed in the paper agreed to- and
meeting this, explicitly, the vague assertion that
he did not agree not to avail himself Of the notes He
for private da.ion by loaninr Tnis weuISa
short Of SO awaiting himself to furnish them for pub
location and for proht
The nearest approach to expres2 denial is the last
clause above quoted Here again the defendant has not
stated that this the whole of the agreement Above
ALL he has here. any whers, distinctly denied the
important restriction upon public by the
complainant
this was an answer no one could hesitate in holding
it open to an exception as insufficient.
There IL another part Of the bill Of no slight impor
tsnce. charges the defendant, preends that he had
asked permission complainant to publish analy
sis of the lectures and that given. In answer to
which the complainant that he assentedto the pub
should be submitted to him. and his such
public from time to time obtained In his affidavit
aud puSSp entire of the an
and which seemed to meet the appreciation Of the
plainsnt until the remarks made to the fourth
lecture The whole Of the that the assent
given upon condition Of prior submission of the article
and particular consent in each instance is not touched
upoR.
conclude that the allegation of the bill pecting an
express agreement prohibiting publication of the lee
lures not repeed and must be assumed to be true
But the case may be also examined in the aspect
favorable to the defendant viz the supposton
that il established Of agreement than this-an
take down his oral lectures for compensation to deli
report Of them to the lecturer he intending and
the employed knowing such Intention publish
those Lectures.
shall not enter into those subeties respecting the
nature Of literary property which, in the case OF MILLER
and TAvLoR exercised the metaphy steal acuteness OF
able judges. The plain inquiry is-when do the
ons of mans intellect, the fruits OF his powers of
form nwhich such right to then; arises as court Of
..,ce an recognize ana aot upon 7
ansper that such right capable Of being protected by
court can eais until the language IN which those thoughts
are oppressed is reduced form in toitng printing
To discuss the point whether the ideas Of the mind,
and the s reseh rns
irrelevant The question is not what is such property,
or right in it in the acceptasion Of philosophy but
court Of justice upon it. only be when
reduced to form in writing OF in print Then, and net
until then do the thoughts Of the mind the breathings
~ no
in bodily presence. They dwell before for moment,
on the trsmulous wave Of the air that communicates
them and the secret chamber Of the BRAIN
Then they acquire a tangible shape, disinguishable
existence. A right then attaches to them Butte WHAT
To the paper say class Of lawyersto the IDEAS
say another, Is, in truth, to the IDEAS the
PAPER; 10 the paper because containing the ideas The
peculiar property which then acquires existence can
not have being without both
But II is not necessary in order give birth to this
right tn author must himself present the ideas IN
Writing or in print He less the author AMI no less
the owner of manuscript because another is employed
to write it, than il done by himself The slaves trained
by .qeus make copies Of the works oil others or his
own for his private or to sell to Cicero were no
more the authors Of the works OF the copies,
than the sty les they employ ed in the writing
will refer few authorities upon this point before
proceeding to its consequence
The definition of copy right, shows it to be true II
is SAID TO be the ownership or rg o. or;y',s
manuscript Of his literary works, comprising the excu
sivc right Of printing Now, here the phrase copy m
used in the identical sense in which printers at this day
employ viz: "the original the archetype from which
any thing 10 copied"
Lord MASsrInLp, in Miller Tayior, says, 1t has All
along been explicitly admitted (he is speaking OF al
missions by Judges and counse) that by the common
law an author is entitled the copy Of his own WORK
until has been once printed and published by ms a
thority; and that the four in chancery c,tsn %
that purpose agreeable to the common law and nI
relief was properly given in consequence 0' '"'
right .,,,ioo mark ed bv
Mr. Justice Yates in his celebrated opinion; ii,;
the learning Of the lawyer the skin OF .ne h;mse,
and the polish of the scholar, thus exPre's, 1n
In ali these cases." speaking Of the cases 10 ,h &
the pubc atoms were surreptiious sgainst tne VIII
If m cnsr before he had consented to the publica-
ton Most certainly the sole proprietor o o any copy
4, 20 IN. pre 81 without his CONSENT he Is GER
n, ,c,nssssr thou gh he came by 1t by legal means,
a. by loan, for he rsnsgresses the bounds oil MS
Again he says As every author or proprietor Of q
manuscript has right to determine whetnsI ne WIZ
and whoever deprives him Of that priority guilty Of