person ought to apply to a Court of Equity for relief, unless he could shew all the damage that might arise from the act of which he complained. But this was not necessary; and here it was very easy to see, that much injury might be done to an author, by the representation of a play on the stage, which he had never intended to be produced there. The piece, in this case, was not what came from the author himself; and the public exercised judgment only on what they saw. They might discover faults in the performers; they might be displeased with the embellishments of the theatre; they might perceive various errors, for which the author was not accountable, but the consequence of which must be, that the play would suffer in the representation. If so, would not those who published also suffer in a pecuniary point of view? Would not the public judgment be warped against the play, on account of the manner in which it was represented? And could it then be so saleable as it was before? The Attorney-General observed, that if the representation of the play was prohibited, the public reading of it might also be prohibited. He went along with him in that proposition. He saw no objection to private reading, since the book was bought for private individuals, any of whom might read it to his family or his friends, but not for hire. It was the reading to the public for hire that constituted the publicity of the case, and took it out of the general observation of the Attorney-General. What he meant by hire was, where every individual, on paying a certain sum, had a right to attend, if he pleased. But it was a very distinct case where the auditory, however numerous, attended by the express invitation and permission of the person who recited the work. The Attorney-General argued, that what was done with respect to the farce of

X Y Z, was not an authority; and how did he make it differ from this case? He said, that by the agreement between Mr Coleman and his partners in the Haymarket theatre, they had a right exclusively to represent X Y Z at that theatre. The fact was, that, in equity, they had purchased XYZ; but the person who had an equitable right, did not stand in a better situation than the assignee of the property in this case.

The Lord Chancellor.-Was that farce published?

Mr Elliston.-It never was.

Mr Shadwell contended, that whether it was published or not, made no difference in the right to the property. In the case of Macklin v. Thomas, an injunction was granted against the defendant on the application of the plaintiff, who was author of a farce called Love-a-la-Mode, which at the time was not printed. It appeared that some person of astonishing memory attended the performance of the farce, and contrived to carry off the very words of it. The defendant proceed. ed to act it, and there an injunction was granted, though the farce had not been published. He, however, took it that the recital in that case was considered a publication, since it made the farce known to all who attended the defendant's performance. In the case of Mathews, in which Mr Barber was concerned, the words were taken down with a view, as he understood, to recitation; and then the Court granted the injunction, to prevent the recitation of that which had not been printed, although it had been recited. Now, when the Court granted that injunction, they must have considered that the public recitation by the defendant was a publication. And if such recitation by the defendant was so considered, they must equally have considered the recitation by the plaintiff as a publication. The two things were

reciprocal. The recitation by the plaintiff, and that by the defendant, must each be looked on as a publication; and if so, here was a case where an injunction was granted to prevent the performance of that which had already been published. The case of Colman and another, in the 5th Term Reports, was an action under the statute of Anne for the penalty; and there the only question was, whether a theatrical representation came within the meaning of the statute, and the Court held that it did not. He, however, did not stand on that statute, but on the right which the Court of Chancery had exercised long before, and independent of the statute of Anne. In the case of Macklin and Richards, and in a long series of cases, the Court interfered to protect the property of authors, independent of the statute. He said independent of it, because they gave relief where the parties applying had not brought themselves within its meaning. In those cases the Court had acted on a general principle, without reference to the statute. He thought, in the present instance, his lordship had done nothing but what was consonant to the principles and practice of the Court; but he was aware, if his lordship felt a doubt on the subject, he would send the question to be decided by a court of law. His client was quite ready, if the matter must be so decided, to proceed immediately.

The Lord Chancellor. The only question is, what is to be done in the meantime ?

Mr Shadwell. While on this point, though nothing was said about it in the affidavit, he might be allowed to observe, that Lord Byron's work was published on Saturday morning. Now it was for his lordship to judge, what expense could have been incurred in getting up a play, from Saturday

VOL. XIV. PART H.

morning to Wednesday evening. It was quite obvious, particularly when they considered the intervening Sun day, that no great expense had been gone to in bringing out the tragedy. They could not suppose that Mr Elliston had any part of the play ready before the day of publication; and the expense incurred in the course of three days could not have been considerable. No expense could have been incurred, during that time, sufficient to afford a plea for allowing Mr Elliston to perform the tragedy pending the decision of the question.

The Attorney-General.-My learned friend began with alluding to Mr Elliston's infraction of your lordship's order.

The Lord Chancellor.-It is but justice to Mr Elliston to say, that he called on me, and intimated the way in which he stood with respect to the representation on Wednesday night. I stated that the injunction was granted; and I think Mr Shadwell quite right in not complaining under all the cir cumstances. Mr Elliston afforded the same facility in the case of the Cobourg theatre.

The Attorney-General.-Mr Elliston is, I am sure, the last person who would willingly infringe any order of the Court.

The Lord Chancellor said, in the case of Mathews, the Court interfered, because, though the work was not literally published, yet, as the defendant had performed it for money at different theatres, he had, pro tanta, published it; and the injury was, that those who attended that species of entertainment, had just as good a right to imitate it, if they could do so, as the defendant had. The Court there said, that though the author had given the right of listening to his performance, even to those who could take away the words, they would not per

F

mit them to be published in the same way. The question then was, whether the principle did not apply here? If it could be so contrived that a case could be made out for the decision of the Court of King's Bench, whether any action could lie for performing this piece, admitting what the perform. ance was, and subject to any arrangement between the parties, it would be the best course that could be pursued. The Attorney-General intimated, in answer to what had fallen from Mr Shadwell, that, for months before the tragedy was published, it had been announced as forthcoming; that the scene where it was laid was known; and that, therefore, Mr Elliston had an opportunity of getting the necessary dresses in readiness.

Mr Shadwell.-As to the question of the intermediate representation, while the matter is pending, my client has no objection to come to an under. standing, if Mr Elliston will make an affidavit that none of the persons who acted in the play had any knowledge of its contents, so as to be able to study it before Saturday morning.

The Lord Chancellor.-I don't look at that at all. If you drive me to decide in the first instance, I must do so in the best way I can. The difficulty is, how to provide satisfactorily for all parties, until the question is decided. If a man pirates a work, an action on the case is brought, an account of the profits of the sale is kept, and the proceeds are paid over to the proper person. But here it is very difficult to ascertain the damage suffered. The better way will be, if the King's Bench decide that an action can be sustained, to appoint some third person to say, what Mr Murray has lost, and what profits Mr Elliston has made.

Mr Shadwell. It is not the damages we look to; I will state what is the fact.

The Lord Chancellor.-I cannot

agree, that every man who writes a tragedy intends that it shall be performed. I should be extremely sorry if we were obliged to see all the tragedies that are written.

Mr Shadwell.-Lord Byron is by no means desirous that his play should be represented; and Mr Murray, who publishes for him, feels very anxious to comply with his wishes.

The Lord Chancellor.-That line of conduct does Mr Murray great credit. With respect to the subject itself, all I can say about it is, that a proposition has been thrown out; and if you trust me so far as to look into the subject, I will to-morrow send you my decision. If, in the meantime, you can enter into an arrangement, let me know it. I shall then have lost nothing, except so much time.

.

The Attorney-General.-We are satisfied with what your lordship proposes.

Mr Shadwell stated, that his client was anxious to have the question settled once for all.

The Lord Chancellor.-I will prepare myself to decide; and you shall have the result, if you send to my house at one to-morrow.

The Attorney-General said that the play had been well received. Therefore, no injury had been done to Lord Byron's feelings. It was very true, the tragedy had been curtailed; but that was the fate of all plays-not excepting those of Shakespeare. He hoped his lordship would not be troubled to decide.

The Lord Chancellor.-It is a very important thing to so respectable a publisher as Mr Murray, that this subject should be settled once for all. But my opinion will not settle the law once for all. And if I determine to continue the injunction, I would nevertheless send the parties to a court of law, to see whether an action will lie in a case of this nature.

Mr Shadwell. We must go to a

court of law on a case, not by way of action.

The Attorney-General.-There can be no action. There are no facts on which to join issue. Your lordship is aware, that the play has been advertised at one of the minor theatres, for Monday.

It was intimated, that an injunction was preparing for that theatre.

Mr Shadwell. My client has so much dealing with authors of eminence, that he wishes the question to be set at rest.

After some further conversation, it was agreed, that if the Lord Chancellor determined to continue the injunction, a case should be made out for the decision of the Court of King's Bench, in order to settle the law upon the subject.

The question, we believe, was not again brought forward.

MURRAY AGAINST RUNDELL, FOR COPYRIGHT OF COOKERY BOOK.

·Court of Chancery, Nov. 3.

Mr Horn, on the part of the plaintiff, prayed his lordship to dissolve an injunction which the defendant had obtained, to restrain his client from publishing a work on a very interesting subject, Cookery. The circumstances of the case were as follows:-Some time previous to the year 1805, the defendant, Mrs Rundell, who was a lady of great respectability, had composed and collected several receipts and observations on the important art of cooking, of which she was generously anxious that society should have the benefit. Her only object was to make the book find its way into the world with that sort of eclat which was calculated to insure its becoming fashionable; and, therefore, her first object

was to find out some person through whose auspices she could introduce it to the west end of the town. She had the good fortune to find a gentleman of all others the most likely to promote the circulation of her literary labours on this ancient and important art and mystery. Upon the shelves of Mr Murray it would become the companion of the works of the most celebrated poets, historians, and philosophers, and with them she fancied it would descend to posterity. This, to an author, and a female author, actuated by the laudable vanity of seeing her work so ushered forth to general attention, was sufficient reward. She therefore assigned her manuscripts to the plaintiff, Mr Murray, the bookseller, with liberty to publish it for his own use and benefit; with this restriction, however, that her name should not appear as the author. Mr Murray found, that the receipts were in many respects imperfect, and required classification; he, therefore, at his own expense, placed the manuscript under the revisal of a person to render it fit for publication. He also suggest ed to Mrs Rundell the propriety of making several additions to the work, which she accordingly made. When the work was at length ready for publication, it was found that a title-page was wanting, which Mrs Rundell had omitted to furnish. The task of composing one devolved upon Mr Murray, and the book, which was destined to add so largely to the comfort and happiness of the people of this country, was ushered into the world under the title of " A New System of Domestic Cookery, founded upon principles of economy, and adapted to the use of private families, by a Lady." This publication was effected entirely at the expense of Mr Murray, and the profits of the work did not at first make an adequate return for the money he had expended upon it. However, the

sale increased, and in 1807 Mr Murray thought he might venture to publish a second edition of the book, with many alterations and improvements, among which was the addition of a table of contents, which he employed a person to compose. He also requested Mrs Rundell to furnish him with some observations on carving, and the fair author accordingly dished him up an essay on that subject. Mr Murray, however, was not satisfied with the manner in which this essay was served up, and he was compelled to give it to another disciple of Apicius, to be set in proper order. Anxious that every possible light should be thrown on the subject, Mr Murray caused nine plates to be drawn and engraved, illustrative of the sublime mystery of carving. The plaintiff, too, added diverse new receipts of his own, together with some most interesting matter, under the title of" Bills of Fare for Family Dinners." In short, he made an entirely new ar rangement of the work for the second edition, which was published in 1809; and in doing this he incurred great expense. The plaintiff had since that time published several new editions of the book, with many farther improvements, so that he calculated that onefourth of the matter contained in the last edition of the work was supplied by him. There was now a great demand for the book; which demand, it was but reasonable to infer, was occasioned solely by the improvements which Mr Murray had effected upon the work, and to the exertions which he had made to circulate it. The learned Counsel said, that he now came to the point which had induced him to address his lordship on the present occasion. It appeared that Mrs Rundell, after having for so many years surrendered up to Mr Murray all right in the work, wished now to resume the power which she had abandoned, and had obtained an injunction from his

Honour the Vice-Chancellor, prohibiting Mr Murray from publishing the work. It was somewhat difficult to understand what were the grounds of this conduct on the part of Mrs Rundell. He (Mr Horn) thought he should be able to satisfy his lordship, by the evidence of a letter of Mrs Rundell, that that lady had resigned all property in the work. This letter was written in answer to one addressed to Mrs Rundell by Mr Murray. That gentleman being at Edinburgh in September, 1808, in which city Mrs Rundell was also residing, thought himself bound in gratitude, as the work had turned out more profitable than he had expected, to make the lady some acknowledgment. Under the influence of this feeling, he sent her the following letter:

"MY DEAREST Madam,

"The unexpected occurrence of some business induces me to solicit your pardon for being obliged to delay the pleasure of attending you until Monday morning. In the meantime, I am happy to avail myself of this first opportunity of sending the inclosure, which I trust you will feel it as highly honourable in you to receive, as it is gratifying in me to have such means for offering. Although your gift to me has proved far more valuable than I expected, yet it has added little to the gratefulness which I have so long entertained for a friendship which it is my highest pride to maintain, and which must ever render me your obliged servant,

"JOHN MURRAY."

The Lord Chancellor.-That's good cooking.

Mr Horn.-The enclosure spoken of in the letter was a draft on Mr Murray's banker for 150l. Mrs Rundell returned an answer to Mr Murray in the following terms :