the greater part of the instances, the defendant does admit that there is some resemblance; and it is impossible to look through the work, and not to say, that they do not resemble each other. They are not, it is true, in the same form. Sometimes you find, in the plate of the Practical Builder, that the figure is turned up, instead of down, and in others, down instead of up; that some are placed on the one side, and others on the opposite side. There are many such casual alterations; substantially, however, they are the same figures. But the reasoning on which the defendant relies, is this, that, though there is a resemblance in those figures, yet there is no proof of imitation. For example, with respect to that part of the work entitled "Geometry." Those who wrote the treatise upon geometry, and described the geometrical figures, could not do otherwise than produce figures having some resemblance to those in the Architectural Dictionary,because the mathematical figures of geometry must resemble each other. And this is true, not merely with respect to geometry, but, in a certain sense, with respect to the science of architecture, and the art of building. As to the former-the science of architecture-it is obvious, for example, that those who describe a Corinthian column, must always produce a figure resembling another Corinthian column, and so throughout every branch of architecture. only is this so in science; but, in giving descriptions of things to be found in nature, you must necessarily give the same figures and designs. Then, again, with respect to the art of building, though not to be considered as a science, if you are describing buildings or part of buildings which are in use, the sameness of the thing delineated must produce similarity in the delineation. For example, the Architectural Dictionary professes to give figures of such roofs as are in use; so the Practical Builder professes to give a similar description of necessity, in such a case, the same figures must be found in the one work as in the other, for they are both from the same designs. So in natural subjects, they must have a resemblance more or less close, if they are accurately drawn; there. fore, the mere fact of resemblance is not in itself an evidence of piracy, where the

Not

subject is of the nature to which I have referred.

But the defendant does not merely, upon this reasoning, insist that a resemblance is not of itself a proof of piracy; he further alleges, that, in point of fact, there is no imitation here; for there is not one single figure to which the plaintiff has referred as a figure to be found in, and having been pirated from the Architectural Dictionary, in which it cannot be proved, that the same figure has been produced in other books, which were published long prior to either of the rival works. "There is," says the defendant, "no one figure referred to in your work which is original: every figure, which you say is to be found in my work like yours, is a figure which has been antecedently published in some prior work. Many of the figures said to resemble those in the Architectural Dictionary, have been repeatedly published in prior works; some of them are figures which are to be found in Doctor Ree's Cyclopædia, in Doctor Brewster's Encyclopædia, or in the Carpenter's Guide, given to the world in 1792; many of those figures are to be found in works antecedently published by Nicholson himself: and every other figure alleged to be copied, which is not to be found in those works, is to be found in works more ancient."

As far as I have been able to follow this through the voluminous inquiry which was instituted, I have not found two original figures challenged in the original affidavit, as resembling the figures in the Architectural Dictionary-I have not been able to find even one-that is not to be found in works which were previously extant.

This fact being ascertained, the reasoning proceeds thus: piracy is either as to arrangement or matter. There is no piracy upon the arrangement here. With respect, therefore, to matter, there is no piracy of the matter; for the privilege of authorship is given to new matter; it is given to no other matter, unless accompanied with new arrangement. These figures are not new matter; no figure which is to be found in prior works, and afterwards found in yours, is new matter. New arrangement you do not pretend to; your title must depend altogether upon new matter. You have à figure in the Architectural Dictionary, pub

lished in 1812; and the same figure, published in that work in 1812, is to be found in a work entitled the Carpenter's Guide, published in 1792, or in Rees's Cyclopædia, published in 1811. Now it may be very true, says Mr. Kelly, taking for granted that I have actually copied from your work published in 1812, for instance, the figure of a roof, that mine is a copy of the same figure of a roof; but is that piracy? It is not piracy, unless you have in your publication, which contains that figure, the privilege and right of authorship. Now, you can have the privilege and right of authorship only in respect of your matter or arrangement; there is nothing in the arrange⚫ment, which entitles you to the privilege or right of authorship; and how can you challenge the privilege of authorship in a book, when you yourself have given it to the world in three prior other works? It is impossible you could acquire the privilege of authorship to the article "Roof," when the same matter had been previously published in Rees's Cyclopædia, Doctor Brewster's Encyclopædia, and in the Carpenter's Guide. The moment you published it as your own in a former work, you had the privilege of authorship in that work; but not in a second publication, which, if published within a certain time, would be, so to speak, a piracy of your own original work; and you could not acquire a title to it, if it were to be admitted, that the defendant had actually copied from your work called the Architectural Dictionary; for the Architectural Dictionary had no right of property in those figures, because those figures were not new figures, but were to be found in other prior works. There being, therefore, no right of protection to that property, there could be no piracy; for there can be no piracy upon a work to which no right of property attaches.

The case does not end there; for the defendant does not merely say, "I have a right to publish these figures, if I chose to imitate them; he further says, "in point of fact, I did not imitate them; I, Mr. Kelly, know nothing of the composition of hose figures; I purchased the drawings of the two Nicholsons, father and son; there being in the whole forty-six plates, twentytwo of them I had from the son, and the remaining twenty-four from the father;

and I paid for them as original compositions of theirs, being utterly ignorant of the fact of their being copies from yours. I do not dispute, that, if they were originally piracies on the part of Nicholson, they are piracies in my work, because I constituted him my agent, and I, as principal, am bound by his acts; but if they were piracies, I say they were so without my knowledge."

On the former hearing, continued the Vice Chancellor, I required affidavits from the two Mr. Nicholsons, whether, as to those figures furnished to the Practical Builder, they had really imitated those which are to be found in the Architectural Dictionary, or copied or taken from materials collected by the father, for the purposes of the Architectural Dictionary. Both father and son have filed affidavits; and they both positively swear that those particular figures were not copied from ⚫ figures contained in the Architectural Dictionary, nor were copied from any materials collected for the purpose of that Architectural Dictionary. Mr. Nicholson, the father, swears that he is a person, who, for many years, has been in the habit of compiling treatises on architecture, and he has drawn those figures from those materials, which, with a view to his general study of the science and his professional pursuits, he had collected together; and there is no reason to doubt the fact; the circumstances of the case speak strongly in favour of that representation so made by Peter Nicholson. Nicholson the son, as to his twentytwo plates, positively swears, that, though they were not original drawings in the sense of first appearing before the public, he did not copy them from the Architectural Dictionary, or from any materials collected for that work, but that they were derived from his general observations on the subject and science of architecture, and the art of building.

If the case rested there, it would be difficult to say that the injunction must not be dissolved.

Having stated the view I have taken of this case, I have to put a question of fact to the plaintiff's counsel. Is there any one of these figures complained of by Barfield, which is not to be found in those prior existing works to which I have referred? I have not been able to find one. I believe there is not one; though it is possible some one figure out of the number alleged to have been copied, may have escaped me. But supposing there were one, would that one be sufficient for me to act upon to the extent of restraining the whole work? Must I not be satisfied that there are so many imitations, that it would be reasonable to restrain the whole publication? If I had so found it, that there had been so many imitations, as to leave no doubt they were copies from the Architectural Dictionary, then I should have thought it right to restrain the piracy by continuing the injunction generally; but, if the articles were but few, I should then have dissolved the injunction, only requiring the defendant to keep an account of the profits made by the sale of the work, till the question was tried at law.

There is another ground upon which the plaintiff would say, he ought to have those terms imposed upon the defendant. "I admit that all this is true, prima facie, as it stands upon the affidavits, and that the court must, for the present, act upon it; but it may turn out very differently, when the two Nicholsons are placed in a jury-box, and examined, viva voce; the court, in the mean time, therefore, ought to impose an account to be kept of the profits arising from this publication,—and, if the fact turned out different from that which is stated upon the affidavits, then the injunction ought to be enforced. I think, in every view of the case, I could dissolve the injunction only upon the condition of the defendant keeping an account, until the action at law was tried.

Among the plates of the Architectural Dictionary alleged to contain original figures, there are two or three, entitled "Elevations," which do not come under the description of architectural figures. An elevation is not a term of art, but applies

simply to the particular subject designed to be represented; it being no more, for instance, than the figure of a house. Those elevations, it is said, have been copied in the Practical Builder. The defendants, in reply, say, that those elevations have been taken from actual plans, and not from the Architectural Dictionary; and I am bound, upon the present occasion, to receive that as an answer, which is positively sworn. I must, for my present purpose, assume that the affidavits which have been made, ought to govern my conduct, being opposed only by allegations of suspicion. The plaintiff can state only that, according to his belief, those particular elevations were copied from his pictures of houses: that is a very just suspicion; but when that suspicion is judicially repelled by the oath of the party, that though the one picture may resemble the other, yet it was not copied from that other picture, but from an actual plan, or from the house itself, it is an answer to the allegation.

Mr. Heald then took an objection to the defendant Kelly's title to the work called the Practical Builder, on the ground that the provisions of the statute of 8 Anne, cap. 19, requiring an assignment from the author, in writing, attested by two witnesses, had not been complied with; and in the course of his argument, referred, by way of illustration, to the Gentleman's Magazine. His argument led to this conclusion, that the person, who is the proprietor and publisher of a work, to which others contribute their compositions, is not the author of it under the statute of Anne.

Mr. Roots followed in support of the same line of argument.

Vice Chancellor.-I consider myself as having now determined that there is no piracy in this case; because there is no imitation of the plates, or of any new matter contained in the Architectural Dictionary, or of its arrangement. Indeed, I might say generally, that there is no imitation of any part of that work; because, although there are resemblances, and with respect to the letter-press, there are parts which are, verbatim, the same, yet it is positively sworn they were copied from

prior works, and not from this particular work.

It is further argued by the counsel for the plaintiff, admitting there is no piracy, that still they have a right as against Mr. Kelly to apply the covenant entered into by Nicholson with Barfield. Nicholson

bound himself by that covenant not only not to publish any piratical work, which the law would have restrained without covenant, but that he would publish no work, which in its nature would have a tendency to interrupt the sale of the Architectural Dictionary. Now, it is perfectly clear, that this work called the Practical Builder, has a tendency to interrupt the sale of the Architectural Dictionary; for it is, in truth, a treatise written and composed upon the same subject; and the publication of a treatise upon the same subject is necessarily a work that must have a tendency to impede the sale of another book written upon the same subject. If this work, then, called the Practical Builder, is, in truth, Nicholson's work, we, contends the plaintiff, have as against him a clear right to restrain the sale of it, because it is a breach of his covenant with us: if we have that right against him who delivered the articles to Kelly, we must have the same right as against Kelly; because the principal, Kelly, must be bound by the act of his agent, Nicholson; and if Nicholson could not furnish those articles without a breach of covenant, Mr. Kelly can have no right to publish them.

Mr. Kelly, in answer, says, that the principle, laid down so generally by the other side, is not a correct proposition. "It is true," he insists, "that a principal is bound by the acts of his agent, generally speaking; but that is not the way in which you must affect me; though Nicholson be my agent, and is bound by the covenant, it can only bind me as far as I have had notice of the covenant imposing the obligation upon him. Now I purchased these compositions from Mr. Nicholson, and paid him a valuable consideration for them, without any notice of the covenant that imposed that particular obligation upon him. I am, therefore, in the contemplation of a court of equity, a purchaser for a valuable consideration without notice."

Then Mr. Heald, to meet this argument,

takes an objection, which is an extremely ingenious one. He says, in a certain sense, I admit that you are a purchaser for a valuable consideration without notice; but then you are a purchaser whose title is incomplete; for there should have been such an assignment, in writing, by the author, made in the presence of two witnesses, as the statute of Anne requires: unless you have such an assignment, though you are an equitable purchaser, which gives you a right against Nicholson to compel him to give an assignment to make you a legal purchaser, still you are only an equitable purchaser; and therefore the question arises as between prior equities. Mr. Barfield says, you, Mr. Kelly, are a purchaser under the agreement of 1821, but I am a purchaser under the covenant of 1816, therefore I have a prior equity.

That argument having been stated to the court, it becomes necessary to consider, whether that is the real situation of Mr. Kelly-that he is a purchaser of this work only as the composition of Nicholson; and that, although he paid a price for it, yet he had no legal title vested in him. It becomes important to see, whether Mr. Kelly is, or is not, substantially entitled, under the provisions of the statute of Anne, to be considered in the character of author and proprietor of the work without reference to Nicholson, Now Mr. Kelly swears in his affidavit, that he formed the plan of the work called the Practical Builder; that meaning to execute the plan and purpose of that work as he formed it, he applied to various artists to execute different parts of the work; that, among others, he applied to Mr. Nicholson, the father, and to his son, Mr. Michael Angelo Nicholson, to compose certain parts, which compositions were actually furnished by them; and that he has paid them for the whole of the compositions so furnished, to be employed in this work, and paid them without notice of the covenant. Then the question is, who is the person under the statute of Anne to be protected? who is the author and the proprietor of this work, under the equitable construction of the statute of Anne? Is each artist who contributes distinct pages? Clearly not: he can be considered, at the utmost, only as the author of the one page contributed by him he is