multiplying copies of the work, but there was no assignment to him of the copyright. After the publisher's death his widow and executrix, with the author's knowledge and assent, registered the copyright in her own name. On the publication of a fresh edition, the widow paid the author money, and gave him copies of the work on the same terms as were contained in the agreement made with her husband in his lifetime; and on three occasions, when the author claimed remuneration on those terms, she did not repudiate all liability, but disputed merely the amount. This was held by the Court of Queen's Bench to be evidence from which a jury might infer an agreement on the part of the widow to remunerate the author on the same scale as in the agreement with her husband, in consideration of the author assenting to her registering the copyright in her own name. (a) PART II. author's repre An author agreed with a bookseller for the publication Payment to of a work of science, to be entitled the "Elements of sentatives for Mechanical Philosophy," and to be published in parts, each unfinished work. part to be paid for when published. After the publication of one volume, which constituted in itself a complete part, the progress of the work was interrupted by the death of the author. It was held by the Scotch Court of Session, that the representatives of the deceased author entitled to payment of the stipulated price of the published volume. One judge dissented, thinking the contract was one for the entire work, and that the object of partial payment was the accommodation of the author, and not any qualification of the original obligation. (b) were decreed. Courts of equity have no jurisdiction to decree specific Speciflc perperformance of contracts between authors and publishers formance not for the composition by the former of works to be published by the latter. (c) Where a barrister agreed with a publisher to write, for a stipulated remuneration, reports of cases decided in the Court of Exchequer, to be printed and published by the publisher, Lord Eldon refused an injunction to restrain the barrister from permitting reports written by him to be published by another person. "I have no jurisdiction," said his Lordship, " to compel Mr Price to write reports for the plaintiffs. I cannot, as in Morris v. Colman, (d) say that I will induce him to write for the plaintiffs by preventing him from writing (a) Hazlitt v. Templeman (13 L. T. N. S. 593). (b) Constable v. Robison's Trustees (14 Fac. Dec. 166, 1 June, 1808). (c) Clarke v. Price (2 Wils. Ch. Cas. 157). (d) 18 Ves. 437. Vide post, p. 282. PART III. Damages for breach of contract. for any other person, for that is not the nature of the agree ment. The only means of enforcing the execution of this agreement would be to make an order compelling Mr. Price to write reports for the plaintiffs, which I have not the means of doing. If there be any remedy in this case, it is at law. If I cannot compel Mr. Price to remain in the Court of Exchequer for the purpose of taking notes, I can do nothing. I cannot indirectly, and for the purpose of compelling him to perform the agreement, compel him to do something which is merely incidental to the agreement. It is also quite clear that there is no mutuality in this agreement. I am of opinion that I have no jurisdiction in this case." (a) In the case of an agreement between an author and a publisher, that the latter should publish at his own risk and expense the work of the former, on the terms that the profits should be equally divided, and that the author should, if a subsequent edition were required, prepare it for the press, and the publisher should print it on the same terms, Knight Bruce, L.J., was of opinion that the duties on neither side were of such a nature that their performance could be specifically enforced by a court of equity.(b) Either party may, however, in such a case be made liable in damages for breach of contract. Thus, where a person was employed to write a treatise on a particular subject to be published in the Juvenile Library, but before he had completed the treatise the Juvenile Library was abandoned by the defendants who had employed him, he was held entitled to recover damages for the breach of contract on the part of the defendants, without any tender or delivery of the treatise on his own part. (c) And the publisher may maintain an action against the author for breach of contract to deliver the manuscript of a work to be published, provided the work is of an innocent character. (d) Though the terms of the contract between author and publisher be that the latter should bring out the work at his own expense, and that the profits should be divided between both, this does not prevent the bringing of such an action as last referred to, because it is not brought to recover part(a) 2 Wils. Ch. Cas. 165. (b) Sterens v. Benning (6 De G. M. & G. 229). (c) Planche v. Colburn (8 Bing. 14; 5 C. & P. 58); and see Colnaghi v. Ward (6 Jur. 969), where an action was brought for breach of contract to deliver an engraved plate to be published by the plaintiff. (d) Gale v. Leckie (2 Stark. N. P. 107). nership profits from the author, but to make him liable for not contributing his labour towards the attainment of profits to be subsequently divided between the parties. (a) Lord Ellenborough indicated the amount of damages to be given in such a case as that which would include the expenses of publication, and the profits which would probably have been derived from it. (b) PART III. between pub seil under a The defendant, having printed a book, sold 300 copies of Agreement it to the plaintiff, a bookseller, at 40s. a copy, and agreed by lishers not to letter "only to sell to others at 48s. in quires, and single certain price copies at 50s. until " the plaintiff's 300 copies were sold or the plaintiff should consent. The letter also contained these words: "I do not expect you to sell under 48s. and 50s.; but do as you like." The plaintiff, when he had sold part of the 300 copies, went into partnership with S., and transferred all his stock at the cost price; and also sold some copies at 45s. and 468. An action being afterwards brought by him against the defendant for selling copies under the stipulated price, it was contended on behalf of the defendant, first, that the plaintiff was bound by implication not to sell the work himself under the price at which the defendant was to sell, and that his selling at 45s. and 46s. was an answer to the action, as being against the good faith and honour of the contract, inasmuch as it would tend to prevent the defendant from selling his copies at all; and, secondly, that the contract was put an end to by the plaintiff's going into partnership with S., and transferring his interest to a firm at 408. a copy; because the undertaking of the defendant was only to continue in force till the 300 copies were sold by the plaintiff, and his parting with them to the firm of which he was only a partner was in fact a selling, just as much as it would be in the case of a joint-stock company. Lord Denman, C.J., held that he could not nonsuit on either ground;-upon the first ground, as the facts relied on did not appear to have been communicated to the defendant; and with respect to the second, enough did not appear of the terms on which the partnership commenced, to justify the decision that there was a parting with the books by the plaintiff, within the meaning of the agreement. His Lordship held, however, that on the question of damage it might be considered whether the plaintiff's own underselling had or had not contributed to affect the price of the work in the market. (c) A contract between a publisher and a printer, whereby the Contract to print (a) Gale v. Leckie (2 Stark. N. P. 107). (c) Benning v. Dove (5 Car. & P. 427). (b) lb. within a specified time. PART III. Specific performance of of copyright. latter undertakes to print a work within six months, does not bind the former to furnish the materials within the six months in the absence of an express stipulation to that effect. (a) Such an engagement to print within six months is only conditional upon the copy being supplied to the printer fast enough; but it does not create by inference an engagement by the employer to furnish it within that time. It would, however, be an answer to any action that might be brought against the defendant for not printing the work within the six months, to say that the copy was not supplied fast enough. (b) Courts of equity have jurisdiction to enforce the specific contract for sale performance of a contract for the sale of a copyright; even when other matters are mixed up with it. (c) Lord Langdale, M.R., overruled a demurrer to a bill for the specific performance of a contract for the purchase of a copyright, stereotype sheets, prints, stock-in-trade, &c. (d) It has not been decided whether, on the sale of a copyright, the law would imply a warranty of title in the absence of an express warranty. Where the executor (who was also the son) of a deceased author, in reply to an offer from a publishing house relating to one of his father's works, replied that he would be happy to treat with them "respecting the copyright" in it; and, in another letter, said he had accepted their offer " for the exclusive right of publishing it," and gave a receipt for the money paid for permission to publish the work so long as the copyright may endure; that right to be exclusively their [the publishers'] own for ten years from this date," it was held that this amounted to an express warranty of title; and an equitable assignment of the copyright having, unknown to the executor, been previously made to another publisher, the executor was held liable to an action for breach of the warranty.(e) Joint owners of a copyright in a work may, no doubt, make what contract they please between themselves as to the printing and publishing of it, and neither will be permitted to set up against the other his original rights as a joint owner in violation of such contract. (f) (a) Mawman v. Gillett (2 Taunt. 325). (e) Sims v. Marryat (17 Q. B. 281). (b) Ib. (d) Ib. "There (f) See the American case of Gould v. Banks (8 Wend. 568). is no principle or authority," said the Court, "which will inhibit such a contract between parties, because they may be partners in the subject matter of it. They may bind themselves by a private agreement concerning the partnership business, but so far as third persons may be PART IIL work by pub lisher. If a person contracts to supply another with a composition in such a form as to enable the latter to publish it as his own, Alteration of a court of equity will not restrain the publication of the manuscript in an altered or mutilated form. (a) The present Lord Chancellor (when Vice-Chancellor Wood) expressed an opinion that, unless there is a special contract, express or implied, reserving to the author a qualified copyright, the purchaser of a manuscript is at liberty to alter and deal with it as he thinks proper. (b) But it seems that if a publisher puts forth an inaccurate edition of an author's work, purporting to be executed by him, the author may maintain an action against the publisher for injury to his reputation, even where the publisher is the owner of the copyright. (c) author. An injunction will not be granted to restrain the publica- Payment of tion of a manuscript on the ground that the sum agreed to be paid to its author for contributing it, has not been paid; for such payment may be enforced at law, and the title to it is not a ground for the interposition of a court of equity. (d) If an author has agreed with a publisher for the publication of his book, and the publisher has in consequence made advances of money, an injunction would, it seems, be granted. to restrain the publication of the work by another publisher until the former had been repaid. (e) continuation of Where a bookseller agreed with an author for an edition Right of author of a new translation of Buchanan's "History of Scotland," to publiation with a continuation to the time of the Union, to be contained his work. in four volumes, and had obtained subscriptions for all that could fall within his edition, he was held by the Court of Session not entitled to prevent the author from publishing in a fifth volume a continuation of the history, which embraced part of the period, and also some of the matter contained in the last of the four volumes, this being repeated in order to keep up the connection.(ƒ) An arrangement was entered into between Dr. Brewster and Professor Jameson, on the one part, and an Edinburgh publishing firm on the other part, for the publication of a work, to be edited by the former, called The Edinburgh Philosophical Journal; the agreement to be binding for five years, or till the termination of the twentieth number of the journal. On the title-page the journal was stated to be interested, it would be inoperative as to them." See also Lindley on Partnership, 869, 870, 2nd edit. (a) Cox v. Cox (11 Hare, 118). (c) Archbold v. Sweet (1 M. & Rob. 162). (b) Ib. (d) Cox v. Cox (11 Hare, 118). (e) Brook v. Wentworth (3 Anstr. 381). (ƒ) Blackie v. Aikman (5 Scotch Sess. Cas. 719, 26 May, 1827). |