other rites and ceremonies of the Church of England," contain erroneous and strange doctrines, and wherein are also openly affirmed and maintained other positions in derogation and depravation of the said book, contrary to the statutes and to the constitutions and canons of the church. The Bishop of Exeter, in conformity with the act referred to (entitled "An Act for the better enforcing of Church Discipline"), served Mr. Head with notice of his intention to issue a commission of inquiry, in order to the institution, if need be, of further proceedings against him. The act contains a provision, that the bishop may, if he think fit, "either in the first instance, or after the commissioners shall have reported that there is sufficient prima facie ground for instituting proceedings, and before the filing of the articles, but not afterwards," send the case by letters of request to the court of appeal of the province. The Bishop of Exeter, after serving this notice upon Mr. Head, sent letters of request to this court, whence a citation issued, to which Mr. Head appeared under protest to the jurisdiction of the court. That protest now came on for argument.

The Queen's Advocate, in support of the protest, contended that the notice served upon Mr. Head was a commencement of the proceeding, and equivalent to a citation in this court; that it not being revoked or annulled, a proceeding was actually pending before the bishop, and might be enforced; and by the suit being entertained in this court, Mr. Head might be subjected to two prosecutions for the same alleged offence, and might be cited to appear on the very same day and hour in the diocese

of Exeter and in this court. The act providing that the bishop may send the case by letters of request to the court of appeal, "in the first instance," or after the report of the commissioners, by "the first instance" could not mean after the bishop had issued a notice of his intention to proceed by a commission of inquiry.

Dr. Harding followed on the same side.

Dr. Adams, against the protest, asked cui bono this objection? If the bishop issued a commission, there was every probability that the commissioners would report that there was a prima facie case, and then letters of request could bring the cause here in the course of four or five months, at further expence. The service of the notice was not a commencement of the proceedings; it merely announced the bishop's intention to proceed.

Dr. Robinson followed on the same side.

Sir H. Jenner Fust said, that with respect to the form of the letters of request, he found no provision in the statute requiring the names of parties to be inserted, nor did it contain any schedule of forms. It had not been alleged that the omission was in any way prejudicial to the party proceeded against. The statute altered the old law, by authorizing the bishop, if he saw fit, without the agency of any other person, to send the case to this court. He was, therefore, of opinion that the letters of request were in the form and manner required by the act. With regard to the notice, he was not satisfied that it was equivalent to a citation; it was a notice of an intention to proceed, but it was no part of the proceedings; it was a preliminary step warning the party

He

to prepare to defend himself. He was of opinion, that the notice was not such a commencement of the proceeding as to bar the bishop from sending the case to this court, and it was not to be supposed that the notice, after the letters of request, could be a valid and subsisting notice, so as to prejudice Mr. Head. The court must, therefore, overrule the protest and assign the party to appear absolutely.

The Queen's Advocate.-I am instructed to pray that you will grant Mr. Head permission to appeal to the Judicial Committee,

Dr. Adams could not see what end this could answer but that of delay.

Sir H. Jenner Fust thought that, as it was a question as to the jurisdiction of the court, he ought to grant permission to appeal.

VICE-CHANCELLORS' COURT.

February 8.

A motion was made to-day on behalf of Mr. T. Campbell, the poet, for an injunction to restrain Messrs. Scott and Geary, the booksellers of Charter-house-square, from selling any more copies of the second volume of a work called "The Book of the Poets, containing the Modern Poets of the Nineteenth Century," on the ground of piracy. The entire copyright of the original poems, published at various times for Mr. Campbell's own benefit, was alleged by the bill to be vested in himself in the year 1840, and, having that right, he agreed, upon certain terms, to permit Mr. Moxon to print and publish a new edition, under the title of "The Poetical Works of

Thomas Campbell." The defendants soon after published their "Book of the Poets," in the second volume of which, containing the modern poets of the nineteenth century, they were alleged to have pirated entire from the edition published by Mr. Moxon several of the most popular and characteristic of Mr. Campbell's productions, including "Ye Mariners of England," "Lord Ullen's Daughter," "Glenara," "Song of the Greeks," and "The Turkish Lady," and also to have made copious extracts from other poems without the permission of the author. The defendants admitted the charge of taking the matter complained of, but justified the act on the ground of the custom of the trade and the bona fide character of the selections of matter they had made. They had some time before published a work entitled "The Book of the Poets, from Chaucer to Beattie," consisting of an essay on English poetry from its commencement until the end of the eighteenth century, with biographical notices of various poets, and extracts from their works, to illustrate the progress of English poetry, and the genius and characteristics of each of the poets of that period. The second volume was intended as a companion to the former, and, in executing the grand design of publishing a book of the poets of the nineteenth century, they had made selections from the plaintiff's poetry, in common with the rest of the modern poets of eminence. The defendants further alleged it to be the custom of the trade to publish works of a similar nature, containing quotations from authors whose works were copyright, and mentioned as instances the "Elegant Extracts in poetry" selected by Dr.

Knox, the poems for young ladies selected by Dr. Goldsmith, poetical epitomes, preceptors, miscellanies, albums, beauties of modern writers, dramatists' garlands, mirror of living bards, and souvenirs of moral and religious poetry, most of which contained as large extracts from copyright authors as had been taken from the plaintiff's poems, without any application being considered necessary to the authors, and that it had always been considered an admitted right to publish bona fide selections from the writings of living authors whose works were copyright, and was constantly practised by various publishers of the greatest respectability. The defendants denied any intention of infringing the copyright of plaintiff in the selections they had made, and argued that so far from his copyright suffering any injury thereby, it would rather have the effect of promoting the sale of his works.

The Vice-Chancellor said the copyright prima facie was clearly in the plaintiff, and there was no question but that the things complained of were actually taken literally as they stood in his book, for it was not denied. Could it be said this was anything like an abridgment? The passages were taken wholesale, some poems entire, and some in very large extracts, and could not in any sense entitle the book to be considered as an essay, or a book of criticism. Of the 799 pages in the defendants' book only 32 were devoted to a general discussion of the nature of the poetry of the nine teenth century, without any particular observation being appended to the particular extracts, and then followed the poems to the extent of 758 pages. He thought this

could not in common sense be called a book of criticism. If a critical note had been appended to each passage or to several passages, by way of illustration, or to show whence Mr. Campbell had borrowed an idea, or what idea he had communicated to others, it would be fair criticism; but here was a general essay, and then followed the vast mass of pirated matter which constituted the body of the volume. In the case of the "Encyclopædia Londinensis" there was a treatise containing only 118 pages, and 75 of them were taken from the from the Encyclopædia," and there the jury found a verdict for the plaintiff. It was not necessary for the Court to consider, whether the passages taken were the cream and essence of all that Campbell had written; it was plain they would not have been printed at all by the defendants if they had not been very attractive. The plaintiff had been admitted to be the composer of the poems, and they had been bodily collected by the defendants without any criticism at all, and therefore, prima facie, he thought the case was with the plaintiff. The only question was whether there had been such a damnum as would justify the application for an injunction, for injuria there clearly was. What had been done was against the right of the plaintiff, and he was the person best able to judge for himself. His Honour thought, in such a case, the safest rule was to follow the legal right and to grant the injunction; but if the defendants doubted how much damnum composed the injuria he had no objection to the plaintiff bringing an action to try the legal question.

COURT OF EXCHEQUER,

Sittings at Nisi Prius.

February 18.

THE GOVERNOR AND COMPANY OF THE BANK OF ENGLAND V. TOMKINS. EXCHEQUER BILL FRAUDS.

The Attorney-General, with whom were Mr. Kelly and Sir John Bayley, appeared for the plaintiffs, and Mr. Erle and Mr. Tomlinson for the defendant.

The Attorney-General stated that this was an action in which the Bank of England sought to recover from the defendant the sum of 8,000l. principal, advanced by them to him, together with interest. thereon, from the month of October in last year. In answer to this claim the defendant had pleaded that he did not promise, as the plaintiffs by their declaration alleged; that he had paid the money in question, and also a setaff. This action arose on an advance which the plaintiffs made to the defendant at his instance on the 23rd of September, 1841, when the sum of 11,000l. was lent to him for one month, on the security of eleven Exchequer bills, of the supposed value of 1,000l. each, which he deposited with the plaintiffs, but of which number eight had since been discovered to be forgeries. The letter of the defendant, soliciting the advance, was to the effect that, if the bills were not redeemed by him at the expiration of the month, the plaintiffs were to be at liberty to dispose of them, and to repay themselves their loan with interest, the defendant being liable for any deficiency. At the expiration of the month the defendant redeemed three of these bills, and being

unable to take up the remainder, the plaintiffs, with his sanction, sold them, through their brokers, realizing enough to pay themselves the principal and interest upon their advance. The eight bills so sent into the market found their way on the same day into the hands of Messrs. Coutts, who on examination of them detected the fraud, and sent them to the Exchequer Office to be tested. There these documents were at once pronounced to be spurious, and were, together with many others which were suspected to be forgeries, impounded by the Comptroller-General. Upon this the holder applied to the plaintiffs, who at once refunded the proceeds arising from their sale, and now sought to indemnify themselves by this action against the defendant,, he having refused to make good the loss sustained by the plaintiffs. The only question here was whether the defendant could say that he has paid this advance, or had any right to set off the proceeds of these spurious bills against the plaintiffs' demand for the advances necessary upon the redemption by them of these instruments when discovered to be void. The defendant could only set up that the bills he deposited were genuine, and such as he professed to place in the hands of the plaintiffs as a security. Upon this point there would be the most conclusive evidence against the defendant. It would be shown most clearly that the very eight bills deposited by him, and to be accounted for by the plaintiffs, were spurious.

A variety of evidence was gone into in support of the case for the plaintiffs, and amongst other witnesses Lord Monteagle was called, and examined by Mr. Kelly. "I

am Comptroller-General of the Exchequer. There are three classes of Exchequer-bills, of which those issued for "supplies" are the largest both in value and number. The bills in question purport to belong to that class, and are duplicates of others issued as "supply bills." These issue under special acts, called "the ways and means bills." The course observed in the issue of bills is as follows:-We receive directions from the Treasury to make out the bills required, and they are printed in duplicate, or I should rather say that each bill has a counterfoil, with two marks upon it. These counterfoils are distinguishable from the Exchequer-bills, inasmuch as they have no water mark on them presenting the word "Exchequer," which the bills have upon them. They vary also, inasmuch as the figures in the bills are expressed by words in the counterfoils, and vice versa of course. [Here his Lordship compared the bills and the counterfoil-book.] I see I am wrong in the latter respect. There is no such distinction; but there is a seal or stamp on the bill which there is not on the counterfoil. When there is to be an issue of Exchequer-bills there is first a preparation of paper for the purpose, which is always laid in by anticipation. Moulds are then cast for the particular bills, which remain with the Exchequer. From that office the moulds are sent to the paper-mill, under the custody of a special messenger, who remains at the mill while the paper is in process of manufacture, and brings back the moulds and the paper. When the issue is required, the plate is engraved, and the bills printed in the office; enough to satisfy the demand. Every plate

contains three bills and three counterfoils. These blanks are given to the junior clerk in the office, who numbers the counterfoils consecutively from 1 upwards. The blank bills are then marked doubly by the senior clerk, when they are separated from the counterfoils and stamped with the ancient device of the office, the portcullis. They are then placed in a cashbox, and brought to the ComptrollerGeneral or his assistant for signature. They are generally printed in books of 500 each. After they have been signed, they are counted over, and their number ascertained to be correct, when they are replaced in the box. At the time of signature there is brought a book, called the "signing book," which contains a record of the signature of every bill authenticated by the signature of the party signing the bills, the date at which he signed the bills entered therein, their number, value, and the act under which they are to be issued. When the bills are signed and counted by the clerk presenting them for signature, the party signing enters his name against them in the signing book, in proof of the fact. The bills are then locked up in a box having two locks, the keys of which are in the custody of two clerks, and so they remain till the day appointed for their issue, when they are handed over to the paymaster or his deputy, who gives a receipt for them, the box being opened in his presence by the two clerks. It follows from this, that no two genuine bills could be issued of the same tenour, number, and date; I think it impossible. The issue of such duplicates would be a violation of the law, and could only arise from great carelessness, or a direct violation of the law.