prove that it was tendered to some one of the creditors to execute, as his absolute refusal, in the event of his mere non-execution of it, will be insufficient, Holmes v. Love, 3 B. & C. 242; but, unless the deed contain a positive stipulation that it shall be void, he cannot avail himself of the fact of the other creditors not having signed it, though he himself signed under a verbal representation for the party, that it would be void unless signed by all the creditors. He may also show, that he is discharged by reason of fraudulent representations made to him, when he was induced to sign: ante, 379.

Although the plt. has not executed any deed, the deft. may prove that plt. agreed to take a composition, secured by some collateral security, as the notes of a third person, and that such acceptance was actually received by the plt.; for, although a debtor gives the security of a third person for payment of a part of a stipulated dividend, he is not discharged upon payment of that part only, if the residue of it continues unpaid, Walker v. Seaborne, 1 Taunt. 526, supra; or, in some cases, that deft. has fully completed his part, according to the terms of the accord by actually tendering such notes to the plt.: Bradley v. Gregory, 2 Camp. 384; Cranley v. Hillary, 2 M. & S. 1202.

A deft. may prove, that, on the faith of plt.'s undertaking to receive a composition from him, he executed a deed of assignment of all his property to a trustee, for the benefit of his creditors, and that plt. refused to sign the deed of composition: Butler v. Rhodes, 1 Esp. Rep. 236, supra. However, deft. should prove that the deed was tendered to plt., and that he refused to execute it: ib.; Holmes v. Love, 3 B. & C. 242. Plt. may, however, void the effect of such undertaking, by showing that he did it from deft.'s misrepresentations: Cooling v. Moyes, 6 T. R. 263, supra.

Deft. may also prove, that plt. is one of several creditors who promised to sign a composition-deed, and that, upon the faith of his signing it, others were induced to accept a composition: Boothbey v. Lowden, 3 Camp. 175; Wood v. Roberts, 2 Stark. 217; Brown v. Cornish, 1 Ld. Raym. 217, supra.

[*382]

↑ CONVICTION.

Its Effects in Evidence.
How Proved.

Its Effect, and when Admissible in Evidence.] A conviction in a court of criminal jurisdiction is evidence of the same fact coming collaterally into controversy in a court of civil jurisdiction: B. N. P. 245; Gilb. Ev. 30. But, if the conviction has been procured on the evidence of the party who seeks to avail himself of it in a civil action, it is not admissible; and it seems doubtful whether it can be received in evidence, when it has not been procured on the sole evidence of the party, or even where it has been procured entirely on the evidence of others, if at the party's own instance: Hillyard v. Grantham, cited 2 Ves. 246; Gibson v. Maccarty, Rep. temp. Hardw. 311; Burdon v. Browning, 1 Taunt. 520; Brook v. Carpenter, 3 Bing. 300; 1 Phil. Ev. 320. Nor will it be received to contradict the witnesses in a collateral proceeding, by showing that they had before given a different account before the committing magistrate: Rex v. Howe, 1 Camp.

461.

When a magistrate has jurisdiction, a conviction by him is conclusive evidence of the facts stated in that conviction, if no defects appear upon the face of it: p. Dallas, C. J. Brittain v. Kinnaird, 1 B. & P. 440. So, in trespass against magistrates for taking and detaining a vessel, a conviction by them under the Bum-Boat Act is conclusive evidence that the vessel in question is a boat within the meaning of the act, and properly condemned: ib. 432; Wickes v. Clutterbuck, 2 Bing. 483. And so, a conviction will justify the magistrates under the general issue in an action of trespass, not only in respect of such facts as may be necessary to give them jurisdiction, but also upon the merits of the conviction: Gray v. Cookson, 16 East, 13. A conviction cannot be controverted in evidence; the justice having a competent jurisdiction of the matter, his judgment is conclusive till reversed or quashed: p. Yates, J., Strickland v. Ward, 7 T. R. 634, n. And, in trespass against two magistrates for giving plt.'s landlord possession of a farm, as a deserted farm, they produced in evidence a record of their proceedings under the act of 11 G. 2, c. 19, s. 16, which set forth all such circumstances as were necessary to give them jurisdiction, and by which it appeared that they had pursued the directions of the statute: it was held, it was conclusive as an answer to the action: Rasten v. Carew, 3 B. & C. 649. In this case, Abbott, C. J., observed, "That where justices of the peace have an authority given to them by an act of Parliament, and they appear to have acted within the jurisdiction so given, and to have done all that they are required by the act to do to originate their jurisdiction, a conviction, drawn up in due form, and remaining in force, is a protection in any action brought against them for the acts so done."

How Proved.] The conviction should be proved to be under the hand and seal of the magistrate; and it will be sufficient evidence that the judgment it recites was given: Fuller v. Fotch, Holt, Rep. 287;

Carth. 346. If a valid subsisting conviction be proved at the trial, which appears by the date to warrant the act done under it, the collateral proceeding, or where the conviction is not directly impeached, evidence as to the time when it was actually drawn up, will not be received: Massey v. Johnson, 12 East, 82; Gray v. Cookson, 16 East, 20-1.

COPY.

Post, "SECONDARY EVIDENCE."

[*383]

COPYHOLD.

Proof of Party being a Copyholder, 383.-Proof in Ejectment for, post, "Ejectment.-Proof of Surrender and Admittance, 383.-Proof of Custom of, ib.-Proof by Court-Rolls, ib.

Proof of Party being a Copyholder.] This may be done by proof of his admittance and identity: Doe v. Hillier, 3 T. R. 162, infra. As to ejectment by, see post, "Ejectment."

Proof of Surrender and Admittance to.] The rolls of the customary court, or examinal copies of such rolls, of the surrender and admittance, properly stamped, will be evidence of such surrender and admittance: Doe v. Hall, 16 East, 208. They are the public documents by which the inheritance of every tenant is preserved, 1 Phil. Ev. 397, 8, or registered entries of the surrender, and need not be produced stamped, according to 48 G. 3, c. 149: Doe v. Hall, 16 East, 208. Some evidence of the identity of the party admitted should be adduced: Doe v. Smith, 1 Camp. 197.

Proof of Custom of] The custom must be proved to have existed since the time of legal memory: 4 Leon. 242; post, "Custom." The court-rolls, or examined copies from them, duly stamped, are the most usual evidence of the custom; the same may, however, be proved by the steward, or some ancient person, who has long known the manor and its customs. In an action by a copyholder against the freeholder of a manor, certain parchment writings, preserved among the muniments of a manor, dated in 1698, and 1717, purporting to be signed by certain copyholders of the manor, stating an unlimited right of common in the copy holders, were held to be evidence of the reputation of the manor at the time, as to a presumptive right of common set up by the deft.: Chapman v. Cowlan, 13 East, 10. An entry on the court-rolls, stating the mode of descent of lands in the manor, is evidence of such mode, though no instance of any person having taking according to it be proved: Roe v. Parker, 5 T. R. 26; 10 East, 520. Ancient writings, not properly court-rolls, nor signed by any of the tenants, but found among the rolls, and delivered down from steward to steward, purporting to have been

made a pensu omnium tenentum, have been admitted as evidence, to prove the course of descent within a manor: Denn v. Spray, 1 T. R.

466.

Proof by Court-Rolls.] We have already seen in what instances they are proof of a party being a copyholder, of a surrender and admittance or custom; it may be here further added, that court-rolls, whether of the court-baron, or customary-court, are evidence between the lord of the manor and his tenants, or copy-holders, B. N. P. 247, 1 Phil. Evid. 397; and entries made by a steward in his book, respecting admissions, receipt of fines, &c., connected with the manor, are also evidence. The court-rolls are usually produced and proved by the stewards, [*384] but examined stamped copies will do: 16 East, 208. If it be necessary to prove any entry in the steward's book, it must be regularly produced, be identified as the book kept by the steward of the manor, and his handwriting to the several entries must be proved; but, when the book was of thirty years of age, it was held sufficient to make it evidence to prove that it came out of the proper custody, without proving the steward's handwriting subscribed to the entry: Wynne v. Trewhitt, 4 B. & A. 376. It may be as well observed, that, on the application of a tenant, the Court of K. B. will compel the steward to give the tenant leave to inspect the court-rolls: Rex v. Shelley, 3 T. R. 141.

620.

COPYRIGHT.

FORM OF REMEDY FOR INJURY TO, 384.
FORM OF PLEADINGS, ib.

PRECEDENTS, ib.

EVIDENCE FOR PLAINTIFF, ib.

EVIDENCE FOR Defendant, 385.

Form of Remedy for Injury to.

THE 54 G. 3, c. 156, s. 4, gives a special action on the case, and double costs against the party infringing a copyright. A special action on the case may be maintained against a person for infringement of a copyright, under the 8 Anne: Miller v. Taylor, 4 Burr. 2380; Ewer v. Jones, Salk. 415: Donaldson v. Becket, 4 Burr. 2409; Beckford v. Hood, 7 T. R. An action lies at common law: 7 T. R. 627; 1 Camp. 97, n. a. An action lies for printing the new corrections and additions to an old work: 1 East, 359. Under 8 Anne, an action may be maintained for pirating a single sheet of music, Clementi v. Goulding, 11 East, 244, Back v. Longman, Cowp. 623; or for a print, under 8 G. 2, c. 13. Roworth v. Wilkes, 1 Camp. 94. Besides this action for damages, there are various penalties created by the statutes of 8 Anne, c. 19, 41 G. 3, c. 107, and 54 G. 3, c. 156, for which a party may proceed by

action.

Form of Pleadings.

There is nothing peculiar to distinguish the pleadings in this from any other action in case. The averment of deft.'s wrongful intent is immaterial: 1 Camp. 98. It is not usual to negative plt.'s written consent to the piracy: 7 T. R. 320.

The plea is usually the general issue, as in other actions on the case. Twelve months is the time limited for bringing the action.

Precedents.

See the various forms in 2 Chit. Pl. 760; 8 Wentw. 420; 7 T. R. 518, 620. See precedent on 54 G. 3, c. 156, 2 B. & C. 681.

Evidence for Plaintiff.

The assignee of a copyright must show the assignment to have been in writing: Power v. Walker, 4 Camp. 8; 3 M. & S. 7, s. c. And, where an author publishes his work, and afterwards sells the right, but no agreement or consent in writing was entered into, [*385] in 1814 the assignee published the work, and, in 1818, B. infringed the copyright, and in 1822, the author, by a proper assignment in writing, assigns to the assignee the exclusive right: it was held that the assignee did not, by the parol assent of the author in 1814, acquire the exclusive right of publishing the work, and that the author could not afterwards, in 1822, by making a valid assignment to the assignee, enable him to maintain an action against B. for selling a copy of the same work after such assignment was executed: Clementi v. Walker, 2 B. & C. 861; 4 D. & R. 598. The assignee of a print may maintain an action for pirating it, and his right will be established by producing one of the prints taken from the original engraving, the production of the plate itself not being deemed requisite; the date must also appear on the print: Thompson v. Symonds, 5 T. R. 41. In an action by the author of the work, it is necessary to establish his right by production of his own work, and also produce the publication of the deft., to establish, by comparing the two, the fact of piracy; and it will not be necessary for plt. to prove the entry of his work at Stationer's Hall, Beckford v. Hood, 7 T. R. 620; such entry only being necessary to be proved where the party proceeds for the penalty under 8 Anne: ib. 627; Tonson v. Collins, 1 W. Bl. R. 230. Nor is it incumbent upon the plt. to prove that his name was attached to the title-page of the work. So, where it appeared that two editions of the work were without the author's name prefixed to it, and the title-page of the third edition bore his name, and, after its publication, deft. printed it, proof of these facts was sufficient to entitle plt. to recover: Beckford v. Hood, 7 T. R. 620. And, though the work be not printed, but only in manuscript, yet will the plt. be entitled to recover damages for the infringement of it: White v. Gerock, 2 B. & A. 298; 1 Chit. R. 24, s. c. In an action for pirating a musical composition called A., the right of the author to maintain the action is well supported, by showing him to be the author of a musical composition of that name, comprised in and occupying only one page of a work with a different title, which contained several other musical compositions: ib. In an action for penalties, on proof of distinct acts of sale,