shall publicly advertise a reward for the return of any property whatsoever, which shall have been stolen or lost, and shall in such advertisement use any words purporting that no questions will be asked, or shall make use of any words in any public advertisement purporting that a reward will be given or paid for any property which shall have been stolen or lost, without seizing or making any inquiry after the person producing such property, or shall promise or offer in any such public advertisement to return to any pawnbroker or other person who may have bought or advanced money by way of loan upon any property stolen or lost, the money so paid or advanced, or any other sum of money or reward for the return of such property, or shall print or publish any such advertisement, shall forfeit the sum of fifty pounds for every such offence to any person who will sue for the same by action of debt, to be recovered with full costs of suit.

This provision having given occasion to many vexatious proceedings at the instance of common informers against printers and publishers of newspapers, the Legislature intervened in an Act of last year (a) to remedy the abuse.

The Act provides that no action shall be brought against the printer or publisher of a newspaper to recover the property under sect. 102 of 24 & 25 Vict. c. 96, unless the assent in writing of the Attorney or Solicitor General for England, if the action is brought in England, or for Ireland, if the action is brought in Ireland, has been first obtained to the bringing of the action. (b)

It also limits the time for bringing the action to a period of six months after the forfeiture is incurred; (c) and contains a provision for staying proceedings in actions brought before the passing of the Act. (d)

The term "newspaper" for the purpose of this Act is to mean a newspaper as defined for the purposes of the Acts for the time being in force relating to the carriage of newspapers by post. (e)

(c) lb.

(a) 33 & 34 Vict. c. 65. (d) Sect. 4.

(b) Sect. 3.

(e) Sect. 2.

Vide ante, pp. 261, 262.

PART 11

PART III.

Contracts in

authors, pub

lishers, &c.

CONTRACTS BETWEEN AUTHORS, PUBLISHERS,
PRINTERS, &c.

THE foundation on which contracts between publishers, general, between authors, and others rest, is the same as that which forms the basis of all ordinary contracts, and they may be enforced either by action on the special contract, or, where a special contract does not exist, by the usual action for work and labour done. (a)

Agreement not

within a year.

If the agreement is one "that is not to be performed to be performed within the space of one year from the making thereof" no action can be brought upon it, "unless the agreement upon which such action shall be brought or some memorandum or note thereof is in writing, and signed by the party to be charged therewith," (b) and the word "agreement" includes the consideration for the promise as well as the promise itself. (c)

The following memorandum was made between the plaintiff, a law bookseller and publisher, and the defendant, the author and proprietor of the copyright in a dictionary of the practice of the Courts of King's Bench and Common Pleas, and signed with their respective initials: "Dict. of Practice. 801. per annum for five years, commencing Mich. 1828; 601. per annum for the remainder of Mr. Lee's life, if he survive the five years; payable in either case quarterly; the first payment Michaelmas 1828. T. L.

"S. S.

"Mr. Lee to separate the practices K. B. and C. P." Parol evidence having been held admissible to explain the document, it was held that inasmuch as it appeared to be a memorandum of a contract that was not to be performed

(a) Planchè v. Colburn (8 Bing. 16).

(b) Sect. 4 of Statute of Frauds (29 Car. 2, c. 3). (c) Wain v. Warlters (5 East, 10), Saunders v. Ald. 595).

Wakefield (4 B. &

within a year, and no consideration was stated on the face of it, it was not capable of being enforced by action. (a)

A contract which does not comply with the requirements of the 4th section of the Statute of Frauds is not, however, per se, void, though no action can be brought upon it. Therefore it was held that the plaintiff in the case last referred to, having paid the annuity for several years under the above memorandum of agreement, could not recover back the money so paid, as upon a failure of consideration. (b)

PART III.

be collected

It is not necessary that a contract, required by the Contract may Statute of Frauds to be in writing, should be contained in from a number one document. It may be collected from any number of of papers. papers, (c) provided they are, upon the face of them, sufficiently connected in sense, and do not require parol evidence to establish the connection, parol evidence being inadmissible for that purpose.

Thus, where a publisher proposed to publish by subscription an illustrated edition of Shakespeare, to appear in numbers, at the price of three guineas a number, two guineas to be paid at the time of subscribing, and the remaining guinea on the delivery of each successive number; the prospectus stating "that one number, at least, should be published annually," and that the proprietors were confident that they should be able "to produce two numbers within the course of every year ;" and the defendant, wishing to become a subscriber, wrote his name in a book kept for the purpose in the plaintiff's shop, entitled, "Shakspeare Subscribers, their Signatures;" printed copies of the prospectus lying at the same time in the plaintiff's shop, but neither prospectus nor book of subscribers containing any reference the one to the other, it was held that the contract of the defendant was not one to be performed within the space of a year from the making thereof, and therefore that, in order to be enforceable by action, it must be in writing. (d)

The defendant having refused to continue to take in the numbers of the book, an action was brought against him by the publisher; but it was held that the action could not be maintained for want of a written agreement or memorandum signed by the party to be charged therewith, as required by the 4th section of the Statute of Frauds. The (a) Sweet v. Lee (4 Scott's N. R. 77; 3 M. & Gr. 452). (b) Ib. (c) Jackson v. Lowe (1 Bing. 9); Phillimore v. Barry (1 Camp. 513); Saunderson v. Jackson (2 B. & P. 398); Johnson v. Dodgson (2 M. & W. (d) Boydell v. Drummond (11 East. 142).

653); &c.

PART IIL

Defective form of agreement.

Fixing price
and choosing
embellishments.

prospectus contained the terms of the agreement, and if it could be coupled with the book of subscribers in which the defendant had signed his name, it would be a sufficient memorandum of the agreement to satisfy the statute; but as it contained no reference to the book, nor the book to it, there was no connection in sense between them which would enable the court to couple them together, and treat them as one document; and parol evidence to establish such a connection was inadmissable. (a) "If," said Le Blanc, J., “there had been anything in the book which had referred to the particular prospectus, that would have been sufficient: if the title to the book had been the same with that of the prospectus, it might perhaps have done: but as the signature now stands, without reference of any sort to the prospectus, there was nothing to prevent the plaintiff from substituting any prospectus, and saying that it was the prospectus exhibited in his shop at the time, to which the signature related: the case therefore falls directly within this branch of the Statute of Frauds." (b)

A difficulty in the interpretation of an agreement between an author and a publisher for the publication of the author's book, sometimes arises from the neglect to state distinctly in the agreement whether it is intended by the parties to operate as an assignment of the copyright, or merely as a licence to publish. The cases of Stevens v. Benning and Reade v. Bentley, already referred to (ante, pp. 160-162), exemplify the difficulty; in the latter of which cases the Vice-Chancellor (Wood) refused to allow costs to either party, considering each of them to blame for the defective form of the agreement.

Where the agreement is that the publisher shall take the whole charge and risk, and the whole duty of bringing out the work as he thinks best for the interest of both parties, it seems, according to Lord Hatherley, to be necessarily incident to the duty which the publisher has to perform, that he shall (c) also have the right of fixing the price at which the work is to be brought out.

His Lordship considered that it was further implied in the agreement in the case before him (vide ante, p. 161), that the publisher was to choose the embellishments and everything else connected with the publication, and that he was to do this for all editions which should be brought out during the subsistence of the agreement.(d) "Several difficulties," said his Lordship, " arising upon

(a) Boydell v. Drummond (11 East. 142).
(c) Reade v. Bentley (3 K. & J. 276).

(b) Ib.
(d) Ib.

such a construction have been suggested. It was argued, can it be supposed that the plaintiff intended to give to the publisher the power, if he chooses, of bringing out the work with absurd embellishments beneath its character and injurious to the reputation of the author? The simple answer to that is, the author will take care of himself in that respect by going to a respectable publisher, who would not commit any such absurdity. If he employed a publisher who was in the habit of adding ridiculous illustrations to his works, he would not have reason to complain if the work were so published. The author would select a publisher who, he would presume, would bring out the work in a manner creditable and desirable. So again with regard to the price, it is suggested that the publisher might just so arrange the balance of prices as to enable himself, by an accurate calculation, to get his 107. per cent. commission, and leave nothing to pay the author. The answer is similar: it is not to be supposed that the author would deal with any publisher who was in the habit of so treating authors. If a publisher were to act in such a manner, although perhaps such conduct could not strictly be called a fraud, because it might not be a violation of the specific terms of the agreement, the result would be, that the author whom he so treated would never contract with him again."

In an agreement like the foregoing, where the work was to be brought out at the publisher's expense and the profits to be divided, the addition of a clause providing that the books sold should be "accounted for at the trade sale price, reckoning twenty-five copies as twenty-four, unless it be thought advisable to dispose of any copies, or of the remainder at a lower price, which is left to the judgment and discretion" of the publisher, does not justify an inference that the publisher has no discretion in fixing the price except in the particular case there mentioned. The meaning of such a clause is explained by Lord Hatherley, (when ViceChancellor) in Reade v. Bentley. (a) "It is quite obvious that this clause was introduced with no such view, but because Mr. Bentley is to bring out the work, and in bringing it out, he is to fix a certain price to the trade; he is aware that there are persons who are in the habit of purchasing all these works for re-sale; there is a certain quantity in the first instance offered to the trade, as it is called, who send in their orders, each buyer for a certain quantity of copies, and it is brought out to the trade at a price which (a) 3 K. & J. 277.

PART III.