424 THE LAW OF COPYRIGHT. 



(defendant's MSS. of the work) which are admitted on the part of the plaintiff 

 to be genuine. The documents marked A and B must be admitted on the part 

 of the plaintiff to be genuine, because the Vice-Chancellor has taken them as 

 admitted. . . . Looking to these documents, marked A and B, which are the 

 MSS. of the original treatise. ... I find in B those very elements drawn out, 

 and I think very naturally drawn out, which we find in the plaintiff's work. . . . 

 But 1 think we must take the defendant, in his first treatise, . . . before he 

 could possibly have seen the plaintiff's treatise, to have originated a division 

 which was proper and peculiar to a subject of this character. I find in MS. B, 

 physical, mental and moral characteristics referred to. ... 



"Then, starting with this as regards the plan of the work (and this is the part 

 of the case on which the Vice-Chancellor seems in some degree to have relied), 

 we find in the undisputed document A, the same division, . . . "We find also a 

 reference to Prichard's work, one of the common sources. It is carried on in B. 

 . . . There is certainly enough in B to satisfy me that, without seeing the plain- 

 tiff's book [then not published], the author . . . had arrived at and mapped out 

 a principle, . . . including, under the head of ' Physical Characteristics,' the 

 question of colour, in which is comprehended the skin and hair, and craniology, 

 or form of skull. 



" Now, as regards common sources, I apprehend that when once it is estab- 

 lished that there are common sources, ... it amounts to nothing at all for the 

 plaintiff to say, ' the defendant has cited author after author who have been cited 

 by me ; ' because, when the common sources are referred to, it will be found that 

 they both got them from the same common sources. . . . Therefore, to find 

 Lecebonius, Tacitus, Ctesar and so on, cited, . . . really comes to nothing, when 

 it is found they are both citing the identical passages which are for the most part 

 to be found in Dr. Prichard's book, to which both have recourse. 



" Here I was very anxious to learn whether either the plaintiff or the defendant 

 had cited any author in addition to these referred to in this particular portion of 

 the plaintiff's work, which is supposed to be invaded on the part of the defen- 

 dant. The defendant has quoted an author from Prichard (Calp. Flaccus) who is 

 not quoted by the plaintiff. The defendant has added to his quotations a passage 

 from TertuUian. . . . These circumstances show clearly that the defendant went 

 to the original source 



" This really does remove a vast portion of the subject, which seems to have 

 impressed the Vice-Chancellor very forcibly. ... If you refer to the common 

 sources, then you reduce in a very material degree any legal consequences that 

 can result from the circumstance of the books having similarity in treating of 

 tliese particular heads. ... I think the defendant has satisfactorily explained 

 all the passages contained in the common sources, except the second passage from 

 Retzius. . . I had another doubt as to the words ridilatae comae. . . Prichard 

 makes a mistake. All through he calls this ' red hair,' instead of calling it 

 ' reddened hair.' The plaintiff says, ' I did not fall into that error. From my 

 classical education: I see the force of the word rutllaiae, and I translate that 

 ■" reddened hair." * 



