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the defendants. Motives have nothing to do with it. We have lost no time in coming to the court after the publication of the second volume, and the first volume is in no way connected with the second, except as relating to heads of law, and the plaintiffs gave no assent to the infringement of their copyright. Publishing the first volume did not necessarily lead to the second. The object never was defined to be a work upon the whole law. The cases in the first volume end at Henry Blackstone, and it was never suggested that the work after him was to go down chronologically. With regard to copyright, the quantum has no bearing on the case where the work consists of detached portions, and except where the intention is doubtful. Two individuals may write treatises on the same branch of science, but each must make his honey for himself, and not go to his neighbor's hive for it. To suppose that the judges have been influenced by the quantum, is to misunderstand them; the quantum is only material as evidence of identity, whenever the identity is doubtful. In a great mass, two or three instances of similarity in turns of thought and expression would not be sufficient, but multiplied instances would give a different color. In this case, the quantum has nothing to do with the question, the identity being admitted. It is the same with the animus; what has that to do with abstraction ? The property is taken, how or for what, has nothing to do with it. Criti. cism might be erected into a mode of publishing the best parts of works criticised. Lord Ellenborough alludes to this in Roworth v. Wilkes. Dodsley v. Kinnersley related to selections from Rasselas, and they were held to be fair. But take a book of poems consisting of separate and entire works; would any one be at liberty to publish any of such poems; say, Hohenlinden out of Campbell's poems ? When an entire scene was published of Love à la Mode with an intention of publishing the whole, an injunction went." Each case is a separate work, and it must be taken to be so. Suppose Elwes v. Maur were published separately, would it not be entitled to protection ? The principal of this has been settled by lord Eldon in Butterworth v. Robinson, (5 Wes. 709). The cases must be taken as they are found, and because they are not portable for lawyers on circuit, that is no reason why, for portability, the copyright should be infringed. If this infringement is justified, there can be no reason why any separate article in an encyclopaedia should not be published. Vice CHANCELLoR. In this case, there is no question that the copyright of the cases in question belongs to the plaintiffs; but the question is, whether the mode in which they are converted to the use of the defendants is one of which the plaintiffs have a right to complain. It appears to me, that there is a great difference between publishing a few cases from fifty volumes with notes and comments, to shew the stream and course of the law, and the manner in which it has been modified by successive decisions, and publishing the bare cases themselves. It is difficult to shew that any loss has been, or will ever be sustained by the plaintiffs. They apply to this court on the grounds of irreparable injury; and the decision of the court will be with regard to the injury sustained. Now the court does not interfere to prevent trivial and insignificant trespasses. Thus, upon the maxim of law, “Cujus est solum ejus est usque ad calum,” an injunction might be granted for cutting timber and severing crops: but, suppose a person should apply to restrain an aerial wrong, as by sailing through the air over a person's freehold in a balloon; this surely would be too contemptible to be taken notice of. But that mischief is not more insignificant than this complained of, viz., the publishing twentyfour cases out of fifty-two volumes. The proportion is one 512th part of the whole, and then not for the purpose of abstracting the cases, but to accompany them with an accretion of learned and laborious matter. I must say, that, knowing the use of books, and that these books are so absolutely necessary in the hands of every lawyer, that I do not believe that one copy less will be sold by the plaintiffs. Besides, the notes contain constant references to cases scattered about the plaintiffs' volumes, and no person can read Mr. Smith's volume usefully, without referring to the original works. It is said the new matter bears a large proportion to the
* Macklin v. Richardson, Ambler, 694.
old matter; but I do think that the quantum in another sense is material to be considered; that is, what proportion the quantum taken bears to the whole of the plaintiffs' works. In the case of Bramwell v. Halcomb, the passages complained of were the most material parts of the plaintiffs' work. But the lord chancellor considered, that the quantum was material to look into, to see whether so much was taken as would induce the court to interfere. In that case, it was impossible to suppose that two writers, whatever the subject might be, would use sentence after sentence the same language to express the same thoughts. The smallness of the excerption therefore must be the reason, why the injunction was not sustained before my lord chancellor, and I must take it, that where the quantity is minute, and proportionally so minute as in this case, and the intention manifestly was not to injure the plaintiffs, but to disseminate in an useful manner the knowledge of the law, I should be inflicting an injury rather than preventing one, by granting the injunction. I cannot think that it would occur to Mr. Smith, seeing the way in which he has managed the work, that he was not at liberty to take the cases as he did, and it is material that the plaintiffs did not interfere to quarrel with the publication of the cases taken from them in the first volume. I do not accede to the view that each case is a subject of copyright. It is not formed by assigning a copyright in one case and then in another. The difference may be arithmetical, but for purposes of practice and business, I do not think there is much difference between the first volume and the second. Three cases out of eight volumes is as great in quantity as twenty-four cases out of fortyfour volumes. It is not sworn that any injury has been produced, and no human being can believe that any ever will be ; and the proper construction is, that if Mr. Smith could, without any animadversion, publish three cases, he might the twenty-four; and the invariable practice of the court is, that where there has been any lying by, a party comes too late ; therefore, both upon the substance and conduct of the case, the plaintiffs are not entitled to an injunction; but I shall say nothing about the costs, and leave the parties to such action as they may think proper to institute, with liberty to apply.
The case subsequently came on before the lord chancellor, by way of appeal from the vice-chancellor's judgment, and Jacob and Russell were heard in support of the motion, and Wigram, Wilcoa. and Warner, for the defendant, and, on the 23d of June, the following opinion was pronounced by the
LoRD CHANCELLoR. I have carefully looked through the pleadings and affidavits in this case, and am satisfied that the vice-chancellor has arrived at a right conclusion in refusing the injunction. The circumstances of this case, and the conduct of the parties, are and have been such, as render it unnecessary that I should go into the law affecting questions of this nature. The principles by which courts of equity are governed do not require them to exercise their jurisdiction, in determining what may be the legal rights of parties, but merely to protect those rights when ascertained by legal tribunals, or at most to clear the way of impediments, while litigation with that object is proceeding; and which, unless removed, would cause irreparable mischief and injury. The question is, does a probability of irreparable mischief exist in this case ? I apprehend clearly not, as there is no evidence to that effect. Looking at the conduct of the plaintiffs, this case appears to fall precisely within the principle upon which lord Eldon decided Rundell v. Murray, (1 Jac. 316). His words are, “There has often been great difficulty about granting injunctions, where the plaintiff has previously, by acquiescing, permitted many others to publish the work; where ten have been allowed to publish, the court will not restrain the eleventh. A court of equity frequently refuses an injunction where it acknowledges a right, when the conduct of the party complaining has led to the state of things that occasions the application; and, therefore, without saying with whom the right is, I think it is a case in which strict law only ought to govern.” Now it is well known to all of us, that Mr. Chitty, jun., in his treatise on bills of exchange, and several other authors, have been permitted by the plaintiffs to select, and in fact to print verbatim, cases from the reports now sought to be protected. And after such tacit or express permission, it is not for this court to exercise the extraordinary jurisdiction by injunction, to prevent Mr. Smith from selling the valuable work he in like manner has compiled from a similar source. Besides, there are other acts of the plaintiffs, approaching very closely towards direct acquiescence and sanction given by them to the publication of the second volume at least of the defendant's work. [His lordship went into these facts fully..] And therefore, upon the whole, I think this case ought to be decided by reference to the strict legal rights only. Let the plaintiffs try the question first at law whether piracy has been committed; and should they succeed, they may then return to this court. I must, therefore, refuse this motion, with costs. From what I perceive passed in the court below, it is necessary I should advert to the case of Bramwell v. Halcomb. Now, in the first place, I never decided that case at all; and his honor, the vice-chancellor, was wrong in supposing that I did so, upon the question of the quantum of injury inflicted by the work complained of. The motion fell to the ground under an arrangement between the parties. I never intended to make use of any expression to the effect, that the quantity selected could in any way conclude the question as to an injunction being granted. On the contrary, it appears to me that the mere quantum would afford but a very delusive test. It is not merely the quantity, but quality and value; for a clever author might, in a very small compass, comprise all that is really valuable or virtually important in the work of another.