in Lovel's case, cited in the Countess of Rutland's case (a). But it is said the Court must presume that the defendant is the heir male of the person restored to the title of Lord Stafford by the act. If the description of the defendant in the plea were the same as that in the act, which it is not, still it would be necessary for him to aver that he was the heir male; and looking at the act and the plea, before the Court can identify the title in the one with that in the other, they must presume much more than they ought to do in favor of a plea in abatement. There may be other Lords Stafford. "Lord Stafford" is the only title which the act recites; for though it declares that he shall be a baron, it does not say by what title. It empowers him to bear the arms of the "Barons of Stafford,” evidently leading to the presumption that the original title had been, not Baron Stafford, but Baron of Stafford. In either point of view, therefore, this plea is bad. If we exclude the act from our consideration, it is bad for not shewing how the title claimed is derived. If we take notice of the act, as a public act, (and whether we can or cannot do so, it is not necessary on the present occasion to decide, and upon that point, therefore, I express no opinion,) it is equally bad, for not averring that the defendant is the heir male of the person restored to the peerage by the act. For these reasons I am of opinion that there must be judgment of respondeat

ouster.

HOLROYD, J. concurred (b).

1824.

The KING

บ.

COOKE.

Judgment accordingly.

(a) 6 Rep. 53.

(b) Littledale, J. was absent.

1824.

The privileges conferred by the copyright acts of this country, do

not extend to

books printed

abroad. Where the author of a musical composition sold the right of publishing it to a music seller

in Paris in 1814, reserv

ing to himself the right of

CLEMENTI and others v. WALKER.

THIS was an action on the case, in which the plaintiffs declared, that before and at the time of committing the grievances thereinafter mentioned, they were the proprietors of the copyright of and in a certain book, being a musical composition, called "Vive Henri Quatre, the celebrated French national air, with an introduction, and eight variations for the piano-forte," first printed and published within fourteen years last past; to wit, at Westminster in the county of Middlesex; yet defendant, well knowing the premises, but contriving, and wrongfully and injuriously intending, &c. theretofore, and after the passing of a certain act of parliament, passed in the 54th year of Geo. 3., to wit, on the 26th January, 1822, and on divers other days and times between that day and the day of exhibiting the bill of the said plaintiffs against defendant, to wit, at, &c. knowingly, wrongEnglish music fully, and injuriously, and without the consent of plaintiffs, seller, by parol, who im- so being the proprietors of the copyright of and in such mediately pub- book, first had and obtained in writing, printed and caused lished it; and to be printed divers, to wit, 2000 copies of the said book of English music plaintiffs, by means whereof plaintiffs were greatly injured seller, bought and damnified, to wit, at, &c. There were seven other a French copy counts for publishing and exposing to sale pirated copies of

publishing it

in England,

and in the

same year he sold the work

to A. an

in 1818, B.

another

of the compo

sition, in the the same work. At the trial before Abbott, C. J. at the fair way of his trade, at Paris, Middlesex Sittings in last Hilary Term, the plaintiffs had a and republish- verdict with nominal damages, subject to the opinion of the ed it here on Court upon the following case :—

his own account; and in 1822 the

author exe

cuted a valid

the copyright

Mr. F. Kalkbrenner, a foreigner, composed the music in question in France, in the year 1814. Before he came to assignment of England, which he did in June in that year, he agreed with Mr. Pleyel, a publisher of music in Paris, that he should have the right of publishing such music in France only, reHeld, that A. serving to himself the right of publication in England. It was not published in France before Mr. Kalkbrenner quitaction against ted that country to come to England. On the 17th of B. for piracy.

to A. in writing:

could not

maintain an

June, 1814, there were deposited by Mr. Pleyel five copies
of the musical composition in question in the depôt at
Paris, for entry of copyright in France. It has been pub-
lished and sold in France up to the present time. Shortly
after Mr. Kalkbrenner arrived in England, viz. on the 12th
of July, 1814, he sold the work in question, with two
others, by a parol agreement, for the sum of 30l. to the
plaintiffs, and two other partners since dead; and which
sum was then paid to him for the same. A few days after
such sale, Mr. Kalkbrenner returned to France, and there
corrected the engraving of the composition for the publica-
tion in Paris for Mr. Pleyel, and did not see the work
published at Paris till the following year, 1815. The
plaintiffs first published the composition in England be-
tween the 3d and 10th of September, 1814. At the dis-
tance of two years after this, Mr. Kalkbrenner was paid by
Mr. Pleyel 200 francs, which is equal to about 87. sterling,
for the right Mr. Kalkbrenner had so sold to him. On the
24th of January, 1822, Mr. Kalkbrenner being in England,
executed an assignment in writing of his copyright in the
musical composition in question to the plaintiffs, agreeably
to the terms of sale made by him to them in 1814. The
defendant sold a copy of the work in question to Mr. Lind-
sey on the 20th of February, 1822, at his shop in London,
for two shillings. Such copy was on English paper, and
from an English engraving. The son of the defendant, in
1818, purchased a copy of the composition published by
Mr. Pleyel, at a shop in France, with a number of others
by the same author, which the defendant caused to be en-
graved and published in England in December, 1818. The
defendant's edition was a fac-simile of the copy so purchased
by his
son, and there was no difference between that edition
and the edition published and sold by the plaintiffs in
England. There is a register kept at Paris, and by the
law of France, all musical publications must be registered,
and a copy of the said composition was duly registered and
deposited there on the 17th of June, 1814. The defend-

1824.

CLEMENTI

V.

WALKER.

.1824.

CLEMENTI

v.

WALKER.

ant's son never heard or saw the composition until he saw it at the shop in Paris in 1818.

Comyn, for the plaintiffs. The plaintiffs are entitled, as the proprietors of the copyright, to maintain this action. By the statute 8 Anne, c. 19. the sole right of printing any work was conferred upon the author, or his assignee, for fourteen years, that period to begin from the day of his first publishing the work. That statute is explained and extended by the subsequent statutes 41 Geo. 3. c. 107. and 54 Geo. 3. c. 156., and as all three were passed for the purpose of protecting the rights of authors, they must all receive the construction most favorable to authors. The first publication by the plaintiffs, who were the assignees of the author, was in September, 1814; and though that, according to the case of Power v. Walker (a), did not confer upon them the exclusive right of printing the work, because there was no consent of the author in writing for that purpose, as required by the statute, still, as that publication was made with the consent of the author, it must be taken as a publication by him, and then the subsequent printing of the work by the defendant becomes a wrongful publication, for which the plaintiffs are entitled to a remedy. The partial sale of the work by the author in France, in 1814, did not give the defendant any right to publish it in England. The right in the work vested in the author in 1814, and it remained entire in him until he made a legal assignment of it to the plaintiffs in 1822. Therefore a sale by the defendant after that assignment was an infringement of the right then vested in the plaintiffs, by means of which they have acquired a good right of action.

Campbell, contra. The work was first published, with the consent of the author, in France, and by that act his right to an exclusive publication in England was gone. It is true, that in Edgeberry v .Stephens (b) it is said, * a grant (b) 1 Salk. 447.

(a) 3 M. & S. 7.

of a monopoly may be to the first inventor by the 21 Jac. 1. and if the invention be new in England, a patent may be granted, though the thing was practised beyond sea before;" but that case depended upon the language of a statute very distinct in its object from those now in review; "for," it is added, "the statute speaks of new manufactures within this realm; so that if they be new here, it is within the statute; for the act intended to encourage new devices useful to the kingdom, and whether learned by travel or by study, it is the same thing." The statute of Anne confers upon the author the exclusive right of printing, for a period which is to commence from the time of his first publishing, and that statute, as well as those which followed it, clearly apply to works first published in England. The second section of the 8 Anne, which requires the entry of all books, and the delivery of a certain number of copies of them at Stationers' Hall; and the fourth section, which empowers the Archbishop of Canterbury, and the other officers of state, to regulate the prices of books; both plainly refer to works published for the first time in England. The seventh section, which provides that the act shall not extend to prohibit the importation of any book printed in Greek, Latin, or any other language, beyond sea, evidently implies that any book actually printed in a foreign country, may legally be imported into this country, and sold here; and if it is allowable to sell such books here, it seems impossible to give any good reason why it should not also be allowed to reprint them here, which would be beneficial to the nation, as affording a mode of employment for British capital, talent, and industry. The 12 Geo. 3. c. 36. which has not been cited on the other side, strengthens this argument, because, although it prohibits the importation of books originally printed in England and subsequently reprinted in foreign countries, it does not prohibit the importation of books originally printed in foreign countries. By originally publishing his work at Paris, the author dedicated it to the service of all mankind, and having so done, he cannot after

1824.

CLEMENTI

v.

WALKER.