prevent, in this case, an actual levy upon the property as belonging to defendant. The object of this process is to reach effects which cannot be levied on under a fi. fa., and not those which are liable to that form of execution. This rule is discharged.

J. C. Grady, Esq., for the rule.

F. Osbourne, Esq., contra.

[Leg. Int., Vol. 32, p. 464.]

McILVAIN vs. THE SOUTHWESTERN MARKET COMPANY.

In equity pleading the averments of the original bill and of the answer to a cross-bill are to be taken together in determining the sufficiency of the answer to the cross-bill. The bill and cross-bill and their respective answers are to be treated as part of one case.

Opinion delivered December 24, 1875, by

ALLISON, P. J.-We have in this case a bill and cross-bill, touching an alleged purchase of forty shares of stock by plaintiff, issued by the company, defendant.

To the sufficiency of the answers of McIlvain to the allegations of the cross-bill, exception is taken.

In the bill filed by McIlvain, he sets out the purchase of said stock from one Hartman Grau, the consideration paid to Grau, and his appointment by plaintiff as his attorney to sell and transfer the shares recited

in the power.

The cross-bill admits the issue of the stock to Grau, but asserts that it was issued to pay claims to mechanics and material men; his failure to apply the stock as directed; resolutions passed December 20, 1860, and February 18, 1871, forbidding transfer of the stock; that it was not sold to McIlvain, but was deposited with him by Grau as collateral security for a loan; and that before that time, and at the time of the loan, McIlvain was fully notified of the purpose for which the stock was issued, the want of consideration, and of the resolutions of the directors of the company. The company, defendant, further allege the payment to McIlvain of the consideration for which it was deposited with him as collateral security. To these allegations McIlvain makes answer, denying knowledge on his part that the stock was issued for the "sole and specific purpose" of paying existing liens, and asserts, on information, that the stock was issued absolutely for a good and valid consideration. He denies all knowledge of the resolutions passed by the board of directors until long after he had purchased the stock.

Taking the several statements contained in the bill and cross-bill, we think that everything is stated with sufficient directness to present the issue upon which the questions are to be determined.

The averment of purchase by McIlvain, for a valuable consideration, which is specific as to amount and kind, is a denial in effect of the allegation that he took the stock as collateral security, and that the advance upon it has been since repaid to him. Consideration passing from Grau to the market company is stated upon information, which is all that a third party can be reasonably required to make. The most material matters of defence to the prayer of the bill filed by McIlvain, as set forth in the cross-bill, are denied by him in his denial of the fourth, fifth, sixth and eighth paragraphs of the cross-bill.

A cross-bill is treated as a mere auxiliary suit, or as a dependency of the original suit. The respective averments and denials are, therefore, to be treated as part of the one case, and upon this principle it has been held that the plaintiff in a cross-bill cannot contradict the assertions in his answer to the original suit: Hudson vs. Hudson, 3 Rand. 117, and where the allegations of the cross-bill are inconsistent with the admissions of the answer, they cannot be taken as true, though unanswered: Savage vs. Carter, 7 Dana, 414.

The case before us is a good illustration of the value, and in some instances of the necessity, in order to do full justice between parties, of having all the equities alleged to exist between them presented for determination in the one suit. A defendant cannot pray anything in his answer, except to be dismissed the court; if he has any relief to pray or discovery to seek he must do so by bill of his own; Lube Eq. Pl. 55. This he can only do by cross-bill. If this were not the case, he would have to follow the original bill to a final determination before he could ask for the relief to which he believed himself to be entitled, or perhaps file his own bill as plaintiff, which would result in two separate and independent suits for the same cause of action in progress at the same time, which would be vexatious, and cause an increase of litigation by a multiplicity of suits.

The bill prays that the company, defendant, be compelled to issue a new certificate for the forty shares of stock now held by him. The cross-bill denies that he is a bona fide holder of the stock, and is without right to the same, and asks that he be decreed to deliver up the stock for cancellation.

When this case comes up for final hearing on both bills, the answers and the proofs, the entire merits of the controversy will be fairly presented for a just decision of the cause, and as we think the contradictory assertions which are distinctly made, are fully denied in one form of pleading or the other, the exceptions should be dismissed, and it is so ordered.

Edward S. Dixon, Esq., for McIlvain.

Henry C. Titus and George Junkin, Esqs., for the market company.

Court of Common Pleas, Philadelphia.

No. 2.

[Leg. Int., Vol. 32, p. 264.]

SHERIDAN SHOOK AND ALBERT PALMER vs. JOSEPH H. WOOD.

A defendant will be restrained by injunction from using the title of a dramatic composition which has been copyrighted, even though the body of the play intended to be presented under that title may be different from the copyrighted play.

Opinion delivered July 17, 1875, by

PRATT, J.-The plaintiffs in this action claim to be the sole owners of a certain dramatic composition or play, entitled, Les Deux Orphelines, or The Two Orphans, and that the defendant, Joseph H. Wood, being the manager and proprietor of a certain theatre in the city of Philadelphia, known as Wood's Museum, has announced, declared, and published his intention of performing and presenting said play, without any license or consent of plaintiffs, and greatly to their damage and loss. The case was heard upon bill and answer, and was fully and ably argued by counsel on both sides. There was an attempt upon the part of defendant's counsel, in his argument, to dispute plaintiffs' title, although in the answer of defendant he did not deny its validity, nor did he deny the allegations of the plaintiffs, that it was his (defendant's) purpose to represent a play entitled, Les Deux Orphelines, or The Two Orphans. Defendant stated in his answer, that under his announcement to present The Two Orphans at his theatre, it was his purpose to introduce a play translated from the French, entitled Les Orphelines De La Charite, a play written and produced in the city of Paris in 1857. Defendant attached a copy of the play in the French language, which he desired might be considered as a part of his answer, saying that his translation had been lost.

It is, perhaps, unnecessary to discuss the validity of plaintiffs' title to the play entitled Les Deux Orphelines, or The Two Orphans, as it has already been twice affirmed by courts of competent jurisdiction, the last time being in June, 1874, in the Superior Court of the city of New York, before the Hon. G. M. Spier, justice; even without these adjudications there was, in our opinion, sufficient shown in the affidavits and papers submitted, to assure to plaintiffs a full and complete title to the said play of Les Deux Orphelines, or The Two Orphans.

The play in question was the joint and original production of Adolph D'Ennery and Eugene Cormon, citizens and residents of the republic of France, and N. Hart Jackson, a citizen and resident of the United States of America.

Under an agreement between these last mentioned parties, this play was presented by D'Ennery and Cormon at two theatres in the city of Paris, to wit, at the Theatre Chatalet and Theatre Porte St. Martin, under the title and designation of Les Deux Orphelines, and was thereafter, in accordance with the mutual stipulations and agreements of the parties, presented as a dramatic composition or play at the Union Square

Theatre, in the city of New York, and subsequently in Philadelphia, under the title of The Two Orphans, being the literal and absolute translation of the title of said play from the French into the English language.

Previous to any of these last mentioned representations of said play in the United States, the said N. Hart Jackson secured, on the first day of February, A. D. 1875, a copyright in his own name, to the said play, under the title of The Two Orphans, in accordance with the provisions of the act of Congress in that behalf made.

It appears that this play had never, by consent of either of the authors, been given or made in form of publication, nor in any manner presented to the public except as a dramatic composition.

After the granting of the copyright to the said N. Hart Jackson, with the consent of the said Adolph D'Ennery and Eugene Cormon, theretofore had and made, the said Jackson did assign and transfer all his right, title and interest in the said play, and the copyright thereof, to the plaintiffs, and this assignment was duly recorded in the office of the Librarian of Congress, at Washington.

The act of Congress of 1856 was intended to secure to the authors and proprietors of dramatic compositions the same privileges and protections as were given to literary authors by the act of 1831. It provides that a copyright should be deemed and taken to confer upon the author or proprietor, his heirs and assigns, along with the sole right to print and publish a composition, the sole right also to perform or represent the same, or cause it to be acted, performed or represented, upon any stage or public place, during the whole period for which the copyright is obtained.

It appeared that the plaintiffs have expended large sums of money in bringing the play before the public, and their representations have been attended everywhere with the greatest success.

The name of The Two Orphans, as characterizing a particular dramatic representation, has great value to plaintiffs. It is the name by which their play is known to the general public, and when defendant announced the performance of Les Deux Orphelines, or The Two Orphans, under both the French and English titles, if it was not his intention to produce that play, the effect of it was to mislead the public, and thereby injure the plaintiffs in their future business.

The defendant's counsel contended that plaintiffs had no protection in this title to their play, and the substance of his argument was to the effect that, as no portion of the play was to be performed, defendant could use plaintiffs' title to introduce any play he should choose to present.

In this instance it appeared clearly to the court, from the announcement upon the bills, and from the advertisements of defendant, that his intention was at least to lead the public to believe that the genuine play of Les Deux Orphelines, or The Two Orphans, of which plaintiffs are owners, was to be performed at his theatre.

From such a use of this name the court is of the opinion that the defendant should be restrained.

It is therefore ordered, That the said injunction be, and the same is hereby, in all things, continued in force and made permanent, and the

defendant, and all other persons mentioned and referred to in said injunctive order, are hereby, in all things, restrained and enjoined and forbidden, as in and by said injunctive order they were and are enjoined and restrained and forbidden. Security in $500.

Charles W. Brooke and James H. Heverin, Esqs., for plaintiffs.
Lucas Hirst, Esq., for defendant.

[Leg. Int., Vol. 32, p. 82.]

COLKET et al. vs. ELLIS et al.

The act of April 22, 1874, for the submission of cases to the court without a jury, discussed.

While no statute or principle of public policy intervenes, but a rule of law is a mere privilege which may be waived, such waiver may be as well by a custom known to and acquiesced in by the parties, as by an express contract.

A custom among brokers to sell stocks deposited as collateral security for a call loan, at the board, on failure of the borrower to pay on the day on which demand is made, is not illegal as to parties familiar with and dealing on the basis of such

custom.

An account rendered becomes an account stated if not objected to in a reasonable time. Four months held to be in this case, such an unreasonable time as to amount to an estoppel.

Opinion delivered March 1, 1875, by

MITCHELL, J.-This case having been called in its regular order upon the trial list, the parties, by their respective counsel, filed at bar an agreement to dispense with trial by jury, and submit the decision of the case to the court, in accordance with section 27, Article V. of the new Constitution and the act of assembly of April 22, 1874, (P. L. 109.) This being, so far as I am aware, the first case in this county in which these new provisions have been acted upon, I deem it proper to indicate my serious doubt, whether the requirements of the act of 1874 are not in excess of the constitutional provision, and whether, therefore, they are binding upon the courts.

Section 27 of Article V. of the Constitution, after providing for the submission of the case to the court, continues: “And such court shall hear and determine the same, and the judgment thereon shall be subject to writ of error as in other cases."

The act of 1874, section 1, apparently without warrant, excludes from the privilege of this section parties "acting in a fiduciary capacity." Section 2 then proceeds to dictate that "the decision of the court shall be in writing, stating separately and distinctly the facts found," etc., and in conjunction with the next section appears to provide for a review by the Supreme Court of the findings of fact upon an appeal in a manner unknown to trials by a jury.

It may be that the act can be read so as to provide for a writ of error in cases where that is the proper mode of review, and for an appeal in those cases only, where an appeal would lie by existing laws. This mode of construction would harmonize the proceedings by this mode of trial, and by the ordinary mode of trial by jury; but the question would still remain whether the Constitution did not intend to submit the decision of the facts to the court in the same manner as they are ordinarily submitted to a jury, and whether the right of the court, under the Constitution, to make a general finding for the plaintiff or the defendant, in