ing the receipt thereof, accompanied by words of gift, constituted a valid gift

causa mortis.

In Ellis v. Secor, 31 Michigan, 185; 18 Am. Rep. 178, on a slate by the bedside of E., who was found dead, was written and signed by her the following: "I wish Dr. L. to take possession of all, both real, personal, and mixed. I am so sick I believe I shall die; look in valise." In a valise was found a memorandum written by her, directing Dr. L. to take all of her property. Held, a valid gift on the ground that the writing amounted to an assignment.

Where one going to war said to defendant, to whom he had lent a gun, "If I never return, you may keep the gun as a present from me,” and he never returned but died in service, held, no gift. Smith v. Dorsey, 38 Indiana, 451; 10 Am. Rep. 118. So of a pocket-book under one's pillow, which he requested the nurse to take and give to his wife, and which she did, after his death. Wilcox v. Matteson, 53 Wisconsin, 23; 40 Am. Rep. 751. Newton v. Snyder, 44 Arkansas, 42; 51 Am. Rep. 587, is very similar. See as examples of imperfect delivery: McCord's Adm'r v. McCord, 77 Missouri, 166; 46 Am. Rep. 9; Walter v. Ford, 74 Missouri, 195; 41 Am. Rep. 312.

In respect to donatio causa mortis of stocks, Mr. Thornton says: "A delivery of a receipt for stock was held insufficient: Ward v. Turner, 2 Ves. Sen. 431, but this ruling cannot be regarded as stating the law as laid down by modern authorities." Gifts and Advancements, p. 174. And again (p. 45), citing Duffield v. Elwes, he says: "Some American cases have adopted this rule." Huntington v. Gilmore, 14 Barbour (New York Supr. Ct.) 243. “On the other hand, it is said that The title to a gift causa mortis passes by the delivery only in the lifetime of the donor, and his death perfects the title in the donee by terminating the donor's right or power of defeasance: Emery v. Clough, 63 New Hampshire, 552; and this is the better view: Nicholas v. Adams, 2 Wharton (Penn.), 17; Marshall v. Berry, 13 Allen (Mass.), 43, 46; Trorlicht v. Weizenecker, 1 Missouri Appeals, 482; Daniel v. Smith, 64 California, 346; Parish v. Stone, 14 Pickering (Mass.), 198; Derol v. Dye, 123 Indiana, 321. The case of Barnes v. People, 25 Illinois Appeals, 136, is certainly erroneous.”

Grymes v. Hone, 49 New York, 17; 10 Am. Rep. 313, was a case of an assignment of bank stock to a granddaughter, with delivery of the assignment to the donor's wife with instructions to give it to the granddaughter in case of his death. The donor died five months afterward, and the Court enforced the delivery of the assignment notwithstanding there had been no transfer on the books of the bank. The Court said: "It is urged that this gift was not completed; that the stock was not transferred on the books of the bank, and could not be until the certificate held by the donor was surrendered, and that equity will not aid volunteers to perfect an imperfect gift.

"Within the modern authorities this gift was valid, notwithstanding these objections. The donor by this assignment and power parted with all his interest in the stock assigned as between him and the donee, and the donee became the equitable owner thereof as against every person but a bona fide purchaser without notice. Delivery of the stock certificate without a transfer on the bank's books would have made no more than an equitable title as

Nos. 1, 2. - Ward v. Turner; Duffield v. Elwes. —Notes.

against the bank (N. Y. and N. H. R. R. Co. v. Schuyler, 34 New York, 80, and cases cited), though it would give a legal title as against the assignor. McNeil v. Tenth Nat. Bank, 46 New York, 325, just decided, and according to the case of Duffield v. Elwes, 1 Bligh N. S. 497, 530, decided in the House of Lords. The representatives of the donor were trustees for the donee by operation of law to make the gift effectual. See also to the same effect, Ex parte Pye, 18 Ves. 140; Kekewich v. Manning, 1 DeG., M. & G. 176; Richardson v. Richardson, 3 Equity Cases, 686. This trust, like this species of gift, is peculiar. This trust, like the gift, is revocable during the donor's life, and is perfected and irrevocable by his death.

"This extended the law as laid down by Lord HARDWICKE, in Ward v. Turner, 2 Ves. Sr. 431, 442, upon this subject, and our Courts have gone in the same direction with Duffield v. Elwes. Where notes payable to the donor's order and not indorsed, and other things of similar character, have been given mortis causâ, Courts compel the representatives of the donor to allow the donee to sue in their name, though the legal title has not passed. See last case; Grover v. Grover, 24 Pickering (Mass.), 261; Chase v. Redding, 13 Gray, 418; Bates v. Kempton, 7 id. 382; and see, also, Westerlo v. De Witt, 36 New York, 340; Walsh v. Sexton, 55 Barb. 251.

"The equitable title to this stock is thus passed by the assignment, and it was not necessary to hand over the certificate. A Court of equity will compel the donor's representatives to produce the certificate that the legal title to the stock may be perfected."

In Walsh v. Sexton, 55 Barbour (New York Supr. Ct.), 251, and Allerton v. Lang, 10 Bosworth (New York Super. Ct.), 362, it was held that title passed by bare delivery of the certificate, without indorsement or transfer.

The last three cases are cited by Cook on Stockholders as showing the American law on the subject, and no others are cited.

Hatcher v. Buford, 60 Arkansas, 169; 27 Lawyers' Rep. Annotated, 507, is apparently a case of delivery of bank stocks without writing or transfer on the bank books, and it was held valid, citing Ward v. Turner on the general necessity of delivery.

PREVIOUSLY to "Bulwer Lytton's Act" (3 & 4 Will. IV. c. 15), the author of a dramatic composition was not protected (except indirectly by the restraint against circulation of unauthorized copies) from having his drama (whether previously printed and published or not) represented, with or without abridgment or adaptation, by unauthorized persons on a public stage.

And where a literary composition is not dramatic in form, there is still no law against a representation by unauthor ized persons of a drama founded on it, except indirectly by the restraint upon making copies of the parts, so as to be an infringement of a literary copyright.

[657]

Murray v. Elliston.

5 Barn. & Ald. 657-661 (24 R. R. 519),

Dramatic Copyright.

The manager of a theatre having publicly represented for profit a tragedy, altered and abridged for the stage, without the consent of the owner of the copyright, is not liable to an action, although the tragedy had been previously printed and published for sale.

The LORD CHANCELLOR sent the following case for the opinion of this Court. In 1820 Lord Byron wrote a book entitled

No. 1.-Murray v. Elliston, 5 Barn. & Ald. 657, 658.

"Marino Faliero, Doge of Venice," an historical tragedy, in five acts, with notes; and by deed, dated April 14th, 1821, he assigned the said tragedy and poem, and the copyright thereof, and the exclusive right of printing and publishing the same, and all benefit and advantage thereof, to the plaintiff, in consideration of the sum of £1050, which was duly paid. The plaintiff caused the tragedy to be printed; and, on the 21st April, 1821, copies of it were, for the first time, printed and published for sale, for the sole benefit of the plaintiff. The defendant, being the manager of the Theatre Royal, Drury Lane, after the publication of the tragedy, printed and exposed to view, at the entrance to the theatre, and at divers other places, in the most conspicuous parts of London and Westminster, a bill of the performances at the theatre, dated 24th April, 1821, in which was contained the following notice: "Those who have perused Marino Faliero ' will have anticipated the necessity of considerable curtailments; aware that conversations or soliloquies, however beautiful and interesting in the closet, will frequently tire in public recital. This intimation is due to the ardent admirers of Lord Byron's eminent talents, and will, it is presumed, be a sufficient apology for the great freedom used in the representation of this tragedy on the stage of Drury Lane Theatre." And at the foot of

*

the bill, the defendant announced and advertised the [* 658] tragedy, altered and abridged for theatrical representation

at the theatre, as follows: "To-morrow, for the first time, Lord Byron's tragedy of 'Marino Faliero, Doge of Venice.'" No permission or authority was at any time given by the plaintiff or Lord Byron to the defendant, or to any other person or persons, to represent or perform the tragedy printed for the plaintiff, or any part thereof, or to give out, announce, or advertise the same for theatrical representation. On the 25th April, 1821, the plaintiff filed his bill in Chancery for an injunction to restrain the defendant from acting the tragedy at Drury Lane Theatre, which was granted. On the evening of the same 25th day of April, the defendant publicly represented the tragedy, altered and abridged, for profit, at the Theatre Royal Drury Lane; but in that representation certain parts of it, which the said defendant thought not fit for representation, were omitted. The question was, whether an action could be maintained by the plaintiff against the defendant, for publicly acting and representing for profit the tragedy so abridged.

a

Scarlett, for the plaintiff. This question is quite different from that in Colman v. Wathen, 5 T. R. 245. There, it turned upon the words of the statute, 8 Anne, c. 19, and the point determined was, that the acting a piece on the stage was not a publication. of it within that statute. Here, the question is different; for it depends not on the statute, but on the right of property which the plaintiff has in this work. The moment such a right is established, the consequences must follow, that any injury done

to the property is the subject of legal redress. This is [*659] only one mode in which it may be injured. Unfair and malicious criticism is another, and for that an action will lie. Carr v. Hood, 1 Camp. 355, n. (10 R. R. 701, n.). Suppose this play failed of success when represented, the sale of the work would thereby be damaged. Besides, the curiosity of the public would be thereby satisfied, and so the plaintiff would be injured in the sale of the work. And, whether that right of property arise from the common law, or from the statutes relative to it, is in this case immaterial. For, if the statute makes a literary work property, the common law will give the remedy for the invasion of it. The only question is, whether the representation of this piece for profit may not injure the copyright. If so, the plaintiff is entitled to the judgment of the Court.

Adolphus, contra. In Donaldson v. Beckett, 4 Burr. 2408, the majority of the Judges were of opinion, that the action at common law was taken away by 8 Anne, c. 19, and that the author was precluded from every remedy, except on the statute and on the terms and conditions prescribed thereby. The claim by the plaintiff on this occasion is at variance with this decision. For here, he contends for a far more comprehensive security, and one coexisting with that given by the statute, and restraining the public in points of which the statute takes no notice. The case of Macklin v. Richardson, Amb. 694, was very different. There the farce of "Love a-la-Mode" had never been published, and the defendant having employed a short-hand writer to take

it from the mouths of the actors, published it, and it was [* 660] held that he could not do so. But when, *in Colman v. Wathen, 5 T. R. 245, the converse of this was attempted, the Court held, that the action would not lie. This decision was plainly founded on the nature of copyright, the property in which is exactly the same as if but one book existed, which