effect being only to take from that title the particular character of being a vessel of the United States, the document was properly admitted.

It is also contended, that not being properly and legally documented, she was not seaworthy; and that she was not the proper subject of insurance. It is necessary here, again, to notice a distinction. If, for the want of legal documents, the voyage is, by the laws of the country, rendered illegal, then the policy is void on occount of the illegality of the voyage. Upon this principle alone, the case of Farmer v. Legg, (7 Term R. 186) could have been decided. But if, as in the present case, the laws do not declare the voyage to be illegal on account of the want of the proper documents, then the consequences are left to be determined by the mercantile law. And by that law, where the national character of the vessel is not made a part of the contract, the want of such documents is not material, unless it appears that the risk was enhanced, or that the loss happened in consequence of the want of them; in which case, the insured cannot recover. Nothing appearing in this case to bring it within this rule, these objections cannot prevail.

The next question presented relates to the admission of the declarations of Benjamin Knight, a stockholder and one of the directors of the company. The declaration was not made while acting in the business of the company, but after the loss happened; and it purports to state the knowledge of the company at the time the insurance was effected. Such declarations cannot be received as coming from an agent of the company, when he was not acting in that character. The rights of all corporate bodies would be wholly insecure, and at the mercy of each corporator, if the admission or declarations of one corporator could charge the corporation. The principle cannot be admitted. And the testimony must be regarded as improperly received. But as

1 7 East, 367, Dawson v. Atty; 14 East, 374, Bell v. Carstairs; 2 Johns. 157, Flting et al. v. Scott et al.

2 Haven v. Brown, 7 Greenl. 421.

32 Stark. Ev. 580; 3 Day, 491, Hartford Bank v. Hart.

these declarations related to a matter, as has already been determined, which did not affect the contract, they were immaterial to the issue; and there is no sufficient cause for setting aside the verdict on that account.

A question is also made respecting the exclusion of the declarations of Joseph Bean, and the depositions of Freeman, Parsons, and Weare. It appears in the case, that Bean, with another person, had agreed with the plaintiff to employ the vessel for a certain time, paying for her use a share of her earnings, and that during that period she was lost, he being on board at the time of the loss. The declarations were not made while he was on board, but after the loss had happened. By the contract, Bean was not acting as the agent of the plaintiff, but on his own account. He could not bind the plaintiff in any contract made with others in consequence of the agreement for the employment of the vessel. No declarations made by him could therefore be admissible, on the ground of agency. And even if he had been an agent, his declarations, made while he was not acting in that character, but after the loss happened, could not be admitted. The questions put by the plaintiff to Freeman, Parsons, and Weare, appear to have been put only by way of obtaining explanations of the testimony called out by the defendants; and the answers cannot be evidence, when the testimony, which they were intended to explain is excluded. Nor can illegal testimony be admitted, because it was not objected to before the magistrate taking the deposition. The proper rule upon this point can go no further, than to require, that any objec tion to the form of the question and to the manner of examination should be taken before the commission issues, when taken under a commission, or at the time of taking the testimony, when not so taken. The magistrate cannot judge of the legal character of testimony, which may, or may not, be rendered admissible by events which may take place during the course of the trial. There does not appear to have been any error in excluding this testimony.

Whether the copy of the deposition of Young was, under the circumstances properly admitted, may depend upon the right of the plaintiff to use the original deposition if it had been then on file.

And a majority of the court are of opinion, (in which I do not concur) that the 31st rule, taken in connection with the 43d, by implication, gave the plaintiff the right to use the deposition; and that such a construction of the rules does not contravene the provisions of the statute. This objection is therefore overruled; and judgment is to be entered upon the verdict.

In the Vice Chancellor's Court, and in the Court of Chancery, June, 1838.

SAUNDERS AND Benning v. SMITH.

Where the proprietor of a copyright has for some time suffered several persons to extract from his work, an injunction will not be granted to protect his copyright, without (at all events) a trial at law in the first instance.

It is the quality and value of matter pirated, and not the mere quantity, which is the test upon the question of injunction being granted.

THIS was a motion on the part of Messrs. Saunders & Benning, law booksellers, to restrain the defendant and A. Maxwell, his publisher, from publishing "A Selection of Leading Cases in various Branches of the Law, with Notes, by John W. Smith." The bill filed on the 29th May, 1838, stated, that the plaintiffs possessed the copyrights of the Term Reports, 8 vols. ; East's Reports, 16 vols.; Barnewall and Creswell's, 10 vols. ; Taunton's, 8 vols. ; and .; Bingham's, 10 vols. ; that the greater part of the "Selection of Leading Cases, &c." had been copied and pirated by the defendants, without the consent of the plaintiffs, from the several books before mentioned; that such book, consisting of 305 pages, had 182 of them copied verbatim from the works of the plaintiffs, and of 27 cases, all except three copied verbatim from the books of the plaintiffs. The bill then minutely instanced the alleged piracies, and prayed an account, injunction, and receiver.

Knight Bruce, Jacob, and James Russell, for the motion. The cases in Mr. Smith's book are complete transcripts, and in order to append the notes they should have referred to the cases. The publishing is a clear invasion of copyright, and to publish them

with notes makes no better of it. It could only have been published by means of an arrangement with the owners of the copyright. The cases transferred into the book of the defendants are of more consequence than any others contained in the books from which they are taken. If a treatise is to be published on any subject of law, the mode ought not to be to extract the marrow of the books of another person, for the purpose of adding notes to them. The defendant might have given a description of the cases he took, but not so put them as at first hand they are to be seen in his publication. The affidavit of the plaintiffs states, that the reason why they did not proceed to injoin the defendants from publishing the first set was, that it contained only three of their cases, and that it was not worth their while; but upon the occasion of Mr. Smith's offering the work to the plaintiffs for the purpose of publication, they distinctly informed him that he could not go on with the work without infringing their copyright, and that he could not take their

cases.

Wigram, contra.-There is no case cited, which decides the question before the court. An injunction against a party would be a new course. The court should look upon the whole, not upon a part. For instance, a fair abridgment is no piracy. Also making extracts is none, unless the court thinks the proportion of the extracted matter is so much that it would be a substitution for the whole. The statute of Anne leaves the case open, and the question is, whether, taking the whole book, the thing is prohibited by that statute. If the court thinks that Mr. Smith's work will not supersede one volume of the works extracted from, it is without the scope of piracy. What are the facts? He has taken a case and a half per volume from the term reports? Will Mr. Smith's book, on this account, supersede the term reports? There are seven from East's sixteen volumes, which is not half a case from each; two cases from the eight volumes of Taunton; two from the ten volumes of Barnewell and Cresswell; one from the ten volumes of Bingham. Thirty-nine pages, it is admitted, are free from the charge of piracy. Then the notes are the valuable part of the work, and the proportion they bear in the paging to the

letter press of the cases is two-third cases and one-third notes. But the print of the notes being of a smaller type exceeds the letter press of the text. There being 240 cases in the first volume of term reports, and the 24 cases belonging to the plaintiffs being taken from 52 volumes, each containing, on an average, that number of cases, a jury would not assess the damage at one farthing, and that is the test by which the court will look at it.' Can it be said, that the mode of Mr. Smith's book is a color for publishing a reprint of a work, or that it will be a substitution for the old works? Where piracy cannot be the object or the effect-where there is not a transgression of those speculative limits mentioned by sir Thomas Plumer in Whittingham v. Wooler, there is no case for an injunction. The object of the author was to give his own notes to the profession in the most valuable way. The case of Cutter v. Powell contains seven pages of text and twenty-six pages of note, and Marriot v. Hampton fourteen pages of note, and one of text. Does that appear to have the object, or will it have the effect, of piracy? Then, what is most material in the consideration of a court of equity, is the conduct of the parties. Now the first volume of Mr. Smith's work contained three or four cases, in which the plaintiffs claimed copyright, and they neither applied for an injunction nor secondary notice on the defendants to check them in future, and it was sufficiently advertised in the preface to the first volume, that there would be a second; and we say this is such a lying by on the part of the plaintiffs, till after we have incurred the expenses of publication, as will disentitle them, and that neither upon the ground of common sense nor authority have they any claim to an injunction.

Wilcox and Warren, with Wigram, cited Gyles v. Wilcox, (2 Atk. 141); Butterworth v. Robinson, (5 Ves. 709); and Matthewson v. Stockdale, (12 Ves. 270).

Knight Bruce, in reply.-The question is, whether it is or not reasonably made out to the satisfaction of the court, that what the plaintiffs have a literary property in has been taken and used by

1 Roworth v. Wilkes, 1 Camp. 94; Dodsley v. Kinnersley, 1 Amb. 403; Cary v. Kearsley, 4 Esp. 168; Whittingham v. Wooler, 2 Swans. 428, n.