multiply copies of that work; for, that would be an infringement of Mr. Reade's copyright. But any person was at liberty to turn the incidents of that novel *into the form of a drama. It is like [*489 the case of a man making an abridgment of a work: he may acquire a copyright in the abridgment. So, the author of this drama constructed from the novel would acquire copyright therein. [WILLIAMS, J.-Provided it interfered with no dramatic right. ERLE, C. J.-Your contention is, that, even if an action would have lain for a piracy of the drama of "Gold," none will lie if the same words are taken from the novel.] Precisely so. To constitute an infringement of copyright or dramatic right, the identical thing must be copied ; advantage must be taken of the labour and skill of the author. Suppose two persons set about to dramatize a novel, if each takes the whole of the incidents, the dramas of both will necessarily be much alike. In that case, would the one who gets his play on the stage first have a right to exclude the other? The defendant here has not infringed the statute, because that which he has represented is something substantially different from the plaintiff's production.

Reade, in reply.-Stage-right is even more firmly protected than copyright. No doubt, as the law now stands, if the plaintiff had dramatized a novel, it was competent to the defendant to dramatize it also. But, the play being the original creation, the plaintiff is not divested of his right to the sole representation by his having turned its incidents into a novel. He referred to Blackwell v. Harper, 2 Atk. 95, Planché ". Braham, 4 N. C. 17 (E. C. L. R. vol. 33), 5 Scott 242, 8 C. & P. 68 (E. C. L. R. vol. 34), and Colburn v. Simms, 2 Hare 543. Cur, adv. vult.

ERLE, C. J., now delivered the judgment of the Court:The plaintiff sued for an alleged infringement of his stage copyright in a drama called "Gold." The *defendant had caused to be [*490 represented a drama called "Never too late to mend :" and it is clear, that, in so doing, he was guilty of the infringement complained of, unless the facts mentioned below constitute a defence, because many parts of the two dramas were the same, and the 3 & 4 W. 4, c. 15, s. 2, enacts, that, if any person, without the consent of the proprietor, shall represent any dramatic production therein described, or any part thereof, he shall be liable to a penalty of not less than 40s.

The facts on which the defendant relied, were, that the plaintiff had published a novel called "It is never too late to mend," which was the drama called "Gold" presented in the form of a novel, containing in substance the same incidents and characters and language; and that the defendant's brother dramatized this novel, calling his drama "Never too late to mend," and, in so doing, took many of the characters and incidents and much of the language of the novel. The consequence was, that many parts of the drama "Never too late to mend" were the same as the corresponding parts of the drama "Gold." But the brother so composed his drama from the plaintiff's novel without having seen or in any way known of the plaintiff's drama "Gold," and took nothing directly therefrom. The drama so composed by his brother the defendant represented at his theatre; and on these facts he contended that his brother was the author of the drama so repre

sented by him, within the meaning of the statute 3 & 4 W. 4, c. 15. If he was the author, it follows that the plaintiff was not, and that no right of the plaintiff has been violated.

It was argued for him that copyright differs from patent-right, in this, that the patent is to the first inventor, and there cannot be two first inventors, although there may be two original inventors; whereas, *491] copyright belongs to the author of the composition, and, if two authors invented the same ideas, and clothed them in the same words, each author might have copyright in the same composition, although composed by two original authors. In that case, it was contended that neither of the authors would have infringed any of the rights of the other. A party who multiplied copies taken from such a composition as published by one of them might be liable for infringement of copyright to the author from whose publication he had taken the copies, if that was ascertained, without incurring any liability towards the other author. Upon this principle, he contended that the defendant's brother was an original author of his drama "Never too late to mend," and had both the book copyright and the stage copyright therein.

The Court has already decided in this case that the representation of the brother's drama was no infringement of the plaintiff's book copyright in his novel: and the defendant now further contended that such representation was no infringement of the plaintiff's stage copyright in his drama called "Gold," because the brother was the author of his drama. But we think that this ground of defence fails. The defendant's brother was not the author of those parts of the drama "Never too late to mend" which he copied directly from the plaintiff's novel, and so indirectly from the plaintiff's drama "Gold."

It is not necessary to decide, whether, if the brother published his drama, he would infringe the plaintiff's book copyright under the 5 & 6 Vict. c. 45 in his novel or drama above mentioned. If that question should arise, it would then be time to decide whether the defendant could find any defence: but it is clear that he could not in that case defend himself on the ground that he was the author of the parts which he copied. Here, the question that arises is in respect *492] of the plaintiff's stage copyright in his drama "Gold." This copyright under 3 & 4 W. 4, c. 15, is infringed, if the whole or any part of it should be represented without leave; and it is clear that a very considerable part of it has been represented by the defendant he is therefore liable in this action, unless he has an excuse. The excuse offered is as above stated, that the brother is the author of these parts. But the fact is not so. The brother is not the author of those parts, it being admitted that he copied them from the plaintiff's composition, and did not compose them himself.

The fallacy lies in the allegation that the defendant's brother is the author of his drama "Never too late to mend," which is true in one sense and untrue in another. He is the author of parts of it; and, in respect of publishing or representing them, he infringes no right of others, and might sue any other who infringed his right. But, in respect of the parts copied from the plaintiff, if he was sued for pub. lishing and infringing the book copyright, he might perhaps be excused under some of the rules relating to literary property, and to the

power of abridging or taking extracts therefrom, or the like: but he could not justify on the ground that he was the author; and if, as here, he is sued for representing those parts, and so infringing the stage copyright, he cannot justify as author; and that alone is the ground which is now to be disposed of.

The point that the defendant had a defence in his belief that his brother had a right to dramatize the novel, and that therefore he had a right to represent the drama, could not be relied on. If he had the right, his belief would be immaterial: if he had not the right, and had done the wrong complained of, his belief that he was not doing wrong is equally immaterial. In Lee v. Simpson, 3 C. B. 871 (E. C. L. R. vol. 54), 6 D. & L. 666, *the defendant had purchased the [*493 piece which he represented, and believed he had the right; but, on proof by the plaintiff that he had the right, the judgment was against the defendant, on the ground "that he had infringed the plaintiff's property protected by statute, and was an offender within its terms; and, if the plaintiff was bound to show the defendant's knowledge, the protection awarded by the statute would be illusory." On these grounds, our judginent is for the plaintiff.

Judgment for the plaintiff.

THE GENERAL STEAM NAVIGATION COMPANY v. SLIPPER. Jan. 20.

By the terms of a charter-party, the plaintiff's ship (a steam-vessel) was to proceed to H., to he there ready to load by a given day, or so near thereunto as she might safely get, and there load from the factors of the merchant such quantity of oxen, sheep, and [or] other lawful produce which the merchant might find it convenient to ship, not exceeding what she could reasonably stow and carry over and above her tackle, &c., and, being so loaded, was to proceed therewith to London, and deliver the same on being paid freight a lump sum of 4501. Two working days were allowed for loading and discharging, and three days on demurrage. The cargo to be taken to and from alongside at the merchant's risk aud expense.

Arrived at H., the vessel went alongside the jetty, and received on board a number of barrels of hams and 300 head of live-stock, for which the captain signed bills of lading. Being thus laden, the vessel was found to draw too much water to get over the bar, and the captain was consequently obliged to take out all the stock. He then proposed to the charterer's agent to stow on board so many of the cattle as would enable him to pass over the bar, and to remain outside and there take in the remainder at the charterer's expense and risk. The agent declinel to accede to this, and refused to put any of the cattle again on board, unless the captain would take all. Being unable to come to terms, the captain proceeded on his voyage with only the hams on board :

Held, that, under these circumstances, the owners were not entitled either to the stipulated freight or to damages for the refusal to ship the cargo; for, that, although the captain was not obliged to go within the bar at all, yet, having chosen to do so, and having received the cargo on board, and signed bills of lading, he was bound to find his way to his destination.

THIS was an action brought by the plaintiffs against the defendant for the recovery of 4501., for freight earned by the plaintiffs on a voyage made by their ship "Tiger" from Hjerting, in Denmark, to London, according to the terms of a charter-party; or, if the Court should be of opinion that such freight was not *earned, for damage sustained by the plaintiff's from the defendant's refusing to ship a cargo.

[*494

By consent of the parties, and by a Judge's order pursuant to the

Common Law Procedure Act, 1852, the following case was stated for the opinion of the Court, without any pleadings:

The plaintiffs are a company, whose principal office is in London, and who own a large number of steam-vessels, and, amongst them, the steamship "Tiger." The defendant is a merchant, who resides and carries on his business in London.

In the month of April, 1860, the defendant was desirous of chartering a steamship to carry a cargo of cattle and other inerchandise from Hjerting to London; and he applied to the plaintiffs to know whether they would for that purpose charter to him their steamship the Tiger. To this the plaintiff's assented; and thereupon the following charter-party was drawn up and signed by the agents of the plaintiffs and defendant respectively :—

"London, April 4th, 1860.

"It is this day mutually agreed between Martin Pratt, Esq., secretary to owners of the steam good ship or vessel called the Tiger, of London, of the burthen of 379 register tons or thereabouts, now in London, and George Russell, of London, as agent for Slipper & Son,That the said ship, being tight, staunch, and strong, and every way fitted for the voyage, shall with all convenient speed sail and proceed to Hjerting, to be there and ready to load by the 10th of the current month, or so near thereunto as she may safely get, and there load from the factors of the said [merchant] such quantity of oxen, sheep, and other lawful produce which the said merchant may find it convenient to ship, not exceeding what she can reasonably stow *and carry over and above her tackle, apparel, provisions, and *495] furniture; and, being so loaded, shall therewith proceed to

ог

London to discharge at Brown's wharf, or so near thereunto as she may safely get, and deliver the same on being paid freight a lump sum of 4507. sterling for the entire use of the holds from bulkhead to bulkhead, and decks for cattle and sheep, in full of all port-charges and pilotages (the act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, boilers, machinery, steam, and steam-navigation, of whatever nature or kind soever during the said voyage always excepted): Freight to be paid on unloading and right delivery of the cargo, in cash: Two working days are to be allowed the merchant (if the ship is not sooner des patched) for loading and discharging, and three days on demurrage over and above the said laying days, to be paid for day by day, at the rate of 121. per day: The master to sign bills of lading without prejudice to this agreement: The vessel to be consigned to charterer's agents at ports of lading and discharge free of commission, but paying the usual fees for customs entry and clearance: The cargo to be taken to and from alongside at merchant's risk and expense: Penalty for non-performance of this agreement, 450l.: Lay days not to commence before the 10th of April current, and freight subject to a chartering commission of 21 per cent. of jettison or mortality of cattle and sheep. "GEO. RUSSELL. "Per pro JNO. IRWIN." In accordance with the above charter-party, the Tiger left London

on the 7th of April, 1860; and on the afternoon of the 9th of the same month anchored off Hjerting.

Hjerting is a small town situate on the shores of an *inlet [*496 of the sea on the south-west coast of Jutland, and its position, as well as the points about it which were material to this inquiry, were shown upon a map which accompanied and was to form part of

the case.

The usual landing-place for ships to load and unload their cargoes is a jetty which runs out into the inlet; and across the passage by which vessels proceed down the inlet from Hjerting to the German Ocean are two banks or bars of sand, one called the inner bar, situate about a mile from the jetty, and the other called the outer bar, situate at the mouth of the inlet.

On the 10th of April, under the guidance of a local pilot the Tiger arrived alongside the aforesaid jetty at Hjerting, and the entire use of her holds from bulkhead to bulkhead, and of her deck, was given up to the defendant.

The loading then commenced; and on the two following days a cargo consisting of 96 barrels of hams and of 300 head of live-stock, viz., oxen, bulls, horses, and pigs, which had been provided by the defendant, were stowed on board the ship under the direction of the defendant's son, who was the only person there representing the defendant, and who also acted as interpreter to the captain of the Tiger.

The cargo was stowed in the usual and proper manner, and there was ample room for it in the ship, which when thus loaded was found to draw 14 feet of water forward, and about 14 feet 8 inches aft.

Upon the 12th of April, the loading being completed, the Tiger cast off from the jetty and proceeded on her voyage down the inlet in charge of the same pilot, having on board the defendant's son, who intended to accompany the cargo to London. The captain before starting signed bills of lading in the usual way both in respect of the said cattle and of the barrels of ham, which bills he handed to the defendant's son.

*When the Tiger had steamed about a mile from the jetty, [*497 and while in her proper channel, she suddenly grounded upon the inner bar, and could not be got off, although it was then highwater at spring-tide, and every effort was made to effect that object. Had she waited till the next spring-tide, which would have occurred in the course of a month, she might possibly when loaded have floated over the said bar; but even this possibility depended upon the concurrence of the spring-tides and a prevalence of winds from the western quarter.

On the two following days, April 13th and 14th, and on April 16th, for the purpose of lightening the vessel, 275 head of the cattle, and a large quantity of fresh water, were at the instance of the captain taken out of the ship in lighters; but she still remained immovable. All possible efforts to move her continued to be made, but without success, till April the 20th, when she floated.

On the following day, April 21st, the Tiger was again brought alongside the jetty, and the few head of cattle that still remained in her were landed.