use; not that which the author proposed to make. Digests are of great use to practical men, though not so, comparatively speaking, to students. The same may be said of an abridgment of any study; but it must be a bonâ fide abridgment, because if it contains many chapters of the original work, or such as made that work most saleable, the maker of the abridgment commits a piracy. Now it will be said that one author may treat the subject very differently from another who wrote before him. That observation is true in many cases. A man may write upon morals in a manner quite distinct from that of others who preceded him; but the subject of music is to be regarded upon very different principles. It is the air or melody which is the invention of the author, and which may, in such case, be the subject of piracy; and you commit a piracy if, by taking not a single bar but several, you incorporate in the new work that in which the whole meritorious part of the invention consists. * * Now it appears to me that if you take from the composition of an author all those bars consecutively which form the entire air or melody without any material alteration, it is a piracy; though, on the other hand, you might take them in a different order, or broken by the intersection of others, like words, in such a manner as should not be a piracy. It must depend on whether the air taken is substantially the same with the original. Now the most unlettered in music can distinguish one song from another, and the mere adaptation of the air, either by changing it to a dance or by transferring it from one instrument to another, does not, even to common apprehensions, alter the original subject. The ear tells you that it is the same. The original air requires the aid of genius for its construction, but a mere mechanic in music can make the adaptation or accompaniment. Substantially the piracy is, where the appropriated music, though adapted to a different purpose from that of the original, may still be recognised by the ear. The adding variations makes no difference in the principle." An injunction was granted. The views of Lord LYNDHURST in that case were cited and approved by Mr. Justice NELSON in this court in the case of Jollie v. Jaques, 1 Blatchf. C. C. R. 618, 625. They are eminently sound and just, and are applicable to the case of a dramatic composition designed for public representation. Such a composition, when represented, excites emotions and imparts impressions not merely through the medium of the ear, as music

Move

does, but through the medium of the eye as well as the car. ment, gesture and facial expression, which address the eye only, are as much a part of the dramatic composition as is the spoken language, which addresses the ear only; and that part of the written composition which gives direction for the movement and gesture is as much a part of the composition, and protected by the copyright, as is the language prescribed to be uttered by the characters. And this is entirely irrespective of the set of the stage, or of the machinery or mechanical appliances, or of what is called in the language of the stage, scenery, or the work of the scene painter.

Now, in consonance with the principles laid down by Lord LYNDHURST, the plaintiff is as much entitled to protection in respect to a substantial and material original part of his "railroad scene," as he is in respect to the whole. Under the Act of 1856 construed in connection with the Act of 1831, he is entitled to be protected against piracy in whole or in part, by representation as well as by printing, publishing and vending. Although the Act of 1831, in regard to printing, publishing, and vending, uses the words "in whole or in part," and the Act of 1856, in regard to representing, does not use those words, yet the Act of 1856, by referring, as it does, to the right conferred by the Act of 1831, as the "sole right to print and publish" the copyrighted composition, when such right is, on the face of the Act of 1831, the sole right to print and publish "in whole or in part," and by then conferring "the sole right also to act, perform, or represent the same, or cause it to be acted, performed, or represented on any stage or public place," must be held to confer the right to represent in whole or in part. All that is substantial and material in the plaintiff's "railroad scene," has been used by Boucicault, in the same order and sequence of events, and in a manner to convey the same sensations and impressions to those who see it represented, as in the plaintiff's play. Boucicault has indeed adapted the plaintiff's series of events to the story of his play, and in doing so has evinced skill and art, but the same use is made in both plays of the same series of events, to excite, by representation, the same emotions in the same sequence. There is no new use, in the sense of the law, in Boucicault's play, of what is found in the plaintiff's "railroad scene." The "railroad scene" in Boucicault's play contains everything which makes the "railroad scene" in the plaintiff's play attractive as a representation on the stage.

As, in the case of the musical composition, the air is the invention of the author, and a piracy is committed if that in which the whole meritorious part of the invention consists is incorporated in another work, without any material alteration in sequence of bars, so in the case of the dramatic composition, designed or suited for representation, the series of events directed in writing by the author in any particular scene is his invention, and a piracy is committed if that in which the whole merit of the scene consists is incorporated in another work without any material alteration in the constituent parts of the series of events, or in the sequence of the events in the series. The adaptation of such series of events to different characters who use different language from the characters and language in the first play, is like the adaptation of the musical air to a different instrument, or the addition to it of variations or of an accompaniment. The original subject of invention, that which required genius to construct it and set it in order, remains the same in the adaptation. A mere mechanic in dramatic composition can make such adaptation; and it is a piracy if the appropriated series of events, when represented on the stage, although performed by new and different characters using different language, is recognised by the spectator through any of the senses to which the representation is addressed, as conveying substantially the same impressions to, and exciting the same emotions in the mind, in the same sequence or order. Tested by these principles, the "railroad scene" in Boucicault's play is undoubtedly, when acted, performed, or represented on a stage or public place, an invasion and infringement of the copyright of the plaintiff in the "railroad scene" in his play.

The substantial identity between the two scenes would naturally lead to the conclusion that the later one had been adopted from the earlier one. The charge of actual plagiarism on the part of Boucicault made in the bill is not denied. It is hardly possible that the resemblances are accidental, and that the differences are not merely colorable, with a view to disguise the plagiarism. The true test as to whether there is piracy or not is to ascertain whether there is a servile or evasive imitation of the plaintiff's work, or whether there is a bona fide original compilation made up from common materials and common sources, with resemblances which are merely accidental, or result from the nature of the subject: Emerson v. Davies, 3 Story 768, 793.

Nothing that has been adduced on the part of the defendants affects the validity of the plaintiff's copyright, on the question of the originality and novelty of the "railroad scene" in his play.

The sale of Boucicault's play to other persons, with a view to its public representation, makes the seller a participant in causing the play to be publicly represented.

An injunction must, therefore, issue restraining the defendants. from the public performance or representation, and from the sale for public performance or representation, of the "railroad scene" in the play of "After Dark," or of any scene in substance the same as the "railroad scene" in either of the two plays, as such scene is herein defined.

Court of Chancery of Delaware.

WHARTON ET AL. v. CLEMENTS ET AL.

A partner with the knowledge of his copartner converted to the use of the firm money received by him as a United States deputy collector of internal revenue. Held, that a bond of the firm given to indemnify the sureties of the deputy collector was valid as a partnership obligation.

Such bond valid as an indemnity although executed before the sureties had made good the defalcation, and although in form it was a bond for the payment of money.

THE material facts in this case were these:-John F. Clements, a United States deputy collector of internal revenue, converted the public revenue collected by him to the use of the firm of J. F. Clements & Co., of which he was a member. This was done with the knowledge and concurrence of his copartner. The firm becoming insolvent, Clements and his copartner executed their joint obligation to indemnify the defendants as sureties in Clements's official bond. The obligation so given was an absolute bond for the payment of $500, with a warrant of attorney for the confession of judgment annexed. Judgment was confessed upon the bond and execution issued, under which the partnership goods were levied upon and sold. The complainants, certain simple-contract creditors of the firm, then filed this bill to restrain the sheriff from paying to the sureties the proceeds of their execution, praying that the fund might be held in order to meet their claims when

prosecuted to judgment. They had since obtained judgments for their respective claims.

At the time of the execution of the indemnifying bond the sureties of Clements had sustained no damage, but since the goods were sold under their execution, and in fact since this bill was filed, they had under legal process made good to the United States collector Clements's defalcation to an amount exceeding the fund in the sheriff's hands. Whether they were entitled to take the proceeds of their execution, or whether these proceeds should be held applicable to the judgments of the complainants as creditors of the firm, was the question in controversy.

E. S. Reed, for the complainants.

J. Alexander Fulton, for the defendants.

BATES, Chancellor.-This bill contests the validity of a judgment confessed by the firm of J. F. Clements & Co., to indemnify the defendants, who were sureties of Clements as deputy collector of internal revenue, against such loss as might accrue to them from his conversion of the public revenue to the use of the firm. The objection taken in argument is that the judgment was without consideration to the firm of J. F. Clements & Co., and was void as against the partnership creditors. That it was without consideration has been urged on the ground that the firm did not, by receiving and using the money collected by Clements and for the due application of which the sureties were bound, incur any partnership debt or liability to the sureties, forming a consideration for the bond; that, on the contrary, the firm as it received the money from Clements became debtor to him alone; that the only remedy of the sureties was against Clements; that between the firm and the sureties there was no privity.

The fallacy of this objection lies in its assuming that the public revenue converted to the use of the partnership was the money of Clements; as if he had borrowed a sum of money on his own credit and put it into the business; in which case, unquestionably, the firm would have been indebted to him only, and not to the person from whom he borrowed. So, if the collection of the public revenue were farmed out to a collector, who, paying to the Government a stipulated sum, should become entitled to collect the taxes for his reimbursement; in such case, the taxes when col