Gray et al. v. Russell et al. drawn from authentic sources, open to the whole profession; and yet it was never dreamed, that it was not a work, which, in the highest sense, might be deemed an original work; since never before were the same materials so admirably combined, and exquisitely wrought out, with a judgment, skill, and taste absolutely unrivalled. Take the case of the work on insurance, written by one of the learned counsel in this cause, and to which the whole profession are so much indebted; it is but a compilation with occasional comments upon all the leading doctrines of that branch of the law, drawn from reported cases, or from former authors; but combined together in a new form, and in a new plan and arrangement; yet, I presume, none of us ever doubted, that he was fully entitled to a copyright in the work, as being truly, in a just sense, his own. There is no foundation in law for the argument, that because the same sources of information are open to all persons, and by the exercise of their own industry and talents and skill, they could, from all these sources, have produced a similar work, one party may at second hand, without any exercise of industry, talents, or skill, borrow from another all the materials, which have been accumulated and combined together by him. Take the case of a map of a county, or of a state, or an empire; it is plain, that in proportion to the accuracy of every such map, must be its similarity to, or even its identity with, every other. Now, suppose a person has bestowed his time and skill and attention, and made a large series of topographical surveys in order to perfect such a map, and has thereby produced one far excelling every existing map of the same sort. It is clear, that notwithstanding this production, he cannot supersede the right of any other person to use the same means by similar surveys and labors to accomplish the same end. But it is just as clear, that he has no right, without any such surveys and labors, to sit down and copy the Gray et al. v. Russell et al. whole of the map already produced by the skill and labors of the first party, and thus to rob him of all the fruit of his industry, skill, and expenditures. It would be a downright piracy. Neither is it of any consequence in what form the works of another author are used; whether it be by a simple reprint or by incorporating the whole or a large portion thereof in some larger work. Thus, for example, if in one of the large Encyclopædias of the present day, the whole or a large portion of a scientific treatise of another author, as, for example, one of Dr. Lardner's, or Sir John Herschell's, or Mrs. Somerville's treatises, should be incorporated, it would be just as much a piracy upon the copyright, as if it were published in a single volume. In some cases, indeed, it may be a very nice question, what amounts to a piracy of a work, or not. Thus, if large extracts are made therefrom in a review, it might be a question, whether those extracts were designed bonâ fide for the mere purpose of criticism, or were designed to supersede the original work under the pretence of a review, by giving its substance in a fugitive form. The same difficulty may arise in relation to an abridgment of an original work. The question, in such a case, must be compounded of various considerations; whether it be a bona fide abridgment, or only an evasion by the omission of some unimportant parts; whether it will, in its present form, prejudice or supersede the original work; whether it will be adapted to the same class of readers; and many other considerations of the same sort, which may enter as elements, in ascertaining, whether there has been a piracy, or not. Although the doctrine is often laid down in the books, that an abridgment is not a piracy of the original copyright; yet 1 See Wilkins v. Aiken, (17 Ves. 424, 425,) Eden on Injunctions, ch. 13, p. 282, 283; 2 Story on Equity Jurispr. s. 939, to s. 942. Gray et al. v. Russell et al. this proposition must be received with many qualifications.1 In many cases, the question may naturally turn upon the point, not so much of the quantity, as of the value of the selected materials. As was significantly said on another occasion, Non numerantur, ponderantur. The quintessence of a work may be piratically extracted, so as to leave a mere caput mortuum, by a selection of all the important passages in a comparatively moderate space. In the recent case of Bramwell v. Halcomb, (3 Mylne & Craig, 737,) it was held, that the question, whether one author has made a piratical use of another's work, does not necessarily depend upon the quantity of that work, which he has quoted, or introduced into his own book. On that occasion, Lord Cottenham said; "When it comes to a question of quantity, it must be very vague. One writer might take all the vital part of another's book, though it might be but a small proportion of the book in quantity. It is not only quantity, but value, which is looked to. It is useless to look to any particular cases about quantity." The same subject was a good deal considered by the same learned judge in Saunders v. Smith, (3 Mylne & Craig. R. 711, 728, 729,) with reference to copyright in Reports; and how far another person was at liberty to extract the substance of such reports, or to publish select cases therefrom, even with notes appended. In the case of Wheaton v. Peters, (8 Peters's R. 591,) the same subject was considered very much at large. It was not doubted by the Court, that Mr. Peters's Condensed Reports would have been an infringement of Mr. Wheaton's 2 1 See 2 Story Equity Jurispr. s. 939, s. 940, s. 941, s. 942. Sweet v. Shaw, before the Vice Chancellor, in 1839, (The [English] Jurist, for 1839, p. 212.) 2 See the Lord Chancellor's opinion in Bell v. Whitehead, (The [English] Jurist, 1839, p. 14.) Sweet v. Shaw, before the Vice Chancellor, 1839, (The [English] Jurist, for 1839, p. 212.) Gray et al. v. Russell et al. copyright, (supposing that copyright properly secured under the act,) if the opinions of the Court had been, or could be, the proper subject of the private copyright by Mr. Wheaton. But it was held, that the opinions of the Court, being published under the authority of Congress, were not the proper subject of private copyright. But it was as little doubted by the Court, that Mr. Wheaton had a copyright in his own marginal notes, and in the arguments of counsel as prepared and arranged in his work. The cause went back to the Circuit Court for the purpose of further inquiries as to the fact, whether the requisites of the act of Congress had been complied with or not by Mr. Wheaton. This would have been wholly useless and nugatory, unless Mr. Wheaton's marginal notes and abstracts. of arguments could have been the subject of a copyright (for that was all the work, which could be the subject of copyright); so that if Mr. Peters had violated that right, Mr. Wheaton was entitled to redress. But we are spared from any nice inquiries of this sort in the present case. The master's report finds that the substance of all Mr. Gould's notes are used in Mr. Cleveland's book, and for the most part literally copied. It is, therefore, a clear infringement of Mr. Gould's copyright, not, indeed, in Adam's Latin Grammar, (for he has none in that,) but in his own notes, first collected together by him in their present form, and in the plan and arrangements, (also his own,) in which they are actually embodied.. Under these circumstances, I shall decree a perpetual injunction. In consideration, that the defendants have already struck out of their editions of Mr. Cleveland's book now sold by them, all the notes of Mr. Gould, and that the defendants are insolvent, the plaintiffs have waived any decree for an account. I shall, therefore, pass that over, and only decree costs for the plaintiffs. Decree accordingly. Wildes et al. v. Savage. WILDES AND OTHERS vs. Savage. By the English law a promise to accept a non-existing bill of exchange, even though it be taken by the holder upon the faith of that promise, does not amount to an acceptance of the bill, when drawn in favor of the holder. But it has been otherwise held by the Supreme Court of the United States. Yet if the bill be payable after sight, and not after date, such a promise has never been held in either country to be an acceptance of a non-existing bill. It is not necessary, that the various parties to a negotiable instrument should be different persons in order to render it a bill of exchange. Upon a guaranty for future advances it is the duty of the parties making the advances to give notice to the guarantor of his acceptance thereof, and his consent to act under the guaranty, and to make the advances. But this doctrine does not apply, where the agreement to accept is cotemporaneous with the guaranty. It is not necessary, that a further distinct notice should be given to the guarantor, of the amount of the advances actually made, or the terms upon which they were made, after the transactions are complete. There are, however, certain exceptions, as when the advances are contingent, or there is a continuing guaranty. If after the credit has expired and the amount become due under a guaranty, a demand be made upon the debtor, and there be a default of payment, notice thereof must be given to the guarantor within reasonable time. But a demand is not necessary, if the debtor be insolvent at the time when the debt becomes due, and the credit has expired. In order to discharge the guarantor there must not only be a want of such notice, but there must be also some loss or damage sustained by him in consequence, and then there will be a pro tanto allowance. Under the circumstances of this case, it was held, that due and sufficient notice was given, and that the guarantor was liable on his guaranty. ASSUMPSIT on a guaranty. The case came on to be heard upon a statement of facts, agreed by the parties, in substance as follows: The plaintiffs are bankers, doing business in London and in Boston. Samuel Austin, Jr. is their agent and attorney. In June, 1836, James S. Bruce, a merchant of Boston, applied to Mr. Austin for a credit upon the plaintiffs for two |