The Express.
London, England, 1846-12-24 00:00:00

Before the Master of the Rolls

R MSBOTHASI V. FUREMAN.—MOTION TO DISCHARGE
ORDER FOR IRREGUL IlITY.—The defendant, Freeman, ap-
plied personally in this case to discharge, for irregularity,
an order upon which ho had been imprisoned by attachment
for not putting in his answer to the amended bill. There
was also a counter-motion by the plaintiff, to restrain an
action which Freeman had commenced in the Common Pleas,
to recover damages, on the ground of the alleged irregularity
of the proceis under which he had been imprisoned. The
suit was instituted to foreclose a mortgage, and the defen-
dant having in his answer set up a defence which required
further discovery from him, the bill was amended. But he
refused to answer the amended bills, and about April, 1842,
he took the benefit of the Insolvent Debtors Act. In May,
1812, an attachment issued against him, upon which he was
taken, and being brought before the court by habeas corpus,
in July, 1842, be swore he could not answer on account of his
poverty, and the usual reference was directed to the master,
and the defendant was turned over to the Fleet. Subse-
quently, a decree nisi was obtained to foreclose the mortgage,
and, after remaining in prison for nine months, the defen-
dant applied for his discharge, which was ordered, but no
costs were awarded to him. After acquiescing in what was
then done for several yearn, he now applied to discharge the
order under which the attachment i•aued for irregularity, and
he asked, if the court should restrain his action for a re-
ference, to ascertain the damages he had sustained by reason
of the alleged false imprisonment.—The Master of the Rolls
said that it was the constant practice of the court not to
allow actions to be brought far damages alleged to have been
sustaiutd by reason of irregularity in the execution of the
process of the court, and he must restrain the action. As to
the motion to discharge for irregularity the order on which the
attachment had issued, it was said the order was irregular, be •
'atria all the interest of the defendant in the property had been
taken out of him by the vesting order under the insolvency, and
freed him from the necessity of answering, but that did not
relieve him from making the discovery sought. If he had
been discharged from prison on the ground of the irregula-
rity of the order under which he was imprisoned, costs
would have been given to him; but that was not so, and
he had no doubt that he was discharged because his answer
was then no longer neceisary, by reason of the decree. After
acquiescence for a long period it was now said all the pro-
ceedings were irregular. Ile had no reason to suppose that,
and he should reft.se the motion, with costs.

'Before the Vice-Chancellor of Eng Lin&
Ditowte v. COOCE.—MOTION NOR AN INJUNCTION TO
RESTRAIN THB PIRACY OF A COPYRIGHT, REPUSED.—This
was a motion for an injunction. The plaintiffs represent the
firm of Longman, Brown, Green, and Longmaas, booksellers
and publishers in Paternoster-row, and are the proprietors of
a literary periodical, published weekly, entitled the London
Medical Gazette, which was commenced in the year 1827.
The defendant is the printer and publisher of a work called
the Medical Times, also published weekly. The affidavit of
the plaintiffs, upon which the motion was made, stat,el that
the London Medical Gazette consisted, to a considerable
extent, of original articles, dissertatious, communications,
contributions, and matters written and composed expressly
for tb, said work; that the said Gazette had been, from time
to time, written, compiled, and edited for the firm of Long-
man and Co., by various persor.s who had been employed, paid,
and remunerated by the said &infer so doing. That the present
editor had been the editor thereof ever since the publica-
tion of the new series in April, 1815, and that the said Long-
man and Co., had paid to such editor, under an agreement
to that effect, a considerable annual pecuniary salary, and
that such editor, for the consideration or salary aforesaid,
had supplied, and still continued to supply, all the articles,
dissertatiors, communications, contributions, and matters
printed and published in the said London Medical Gazette,
but upon the terms that all copyright in the said Gazette,
and in all literary matters supplied thereto, should belong to
and be the property of the said firm. The affidavit then stated
that in many of the numbers and parts recently published of
the Medical Times, the said Michael Cooke had printed and
published various articles and other matters which had
been copied from the plaintiff's work, and that the said
articles and other matters so copied had lately in-
creased to a very material extent. A number of
articles and passages from articles were then set out which
were taken with very slight alterations from the plaintiffs
work. The injunction now sought for was to restrain the
defendant, Michael Cooke, from selling or disposing of any
numbers or parts of the Medical Times containing any article
communication, matter or thing, copied or taken from the
London Medical Gazette.

Mr. Bethel' and Mr. Renshaw, in support of the motion,
contended that the plaintiffs had a copyright in the articles
published in the Medical Gazette, under the statute 5 and 6
of Vic., e. 45. By the 18th sec. of that act it was enacted
that any publisher or other person who should conduct any
periodical work published in any book whatsoever, oremploy
persons to compose the same in, cr as part of, such work, ea
the terms that the copyright therein should belong to such
publisher, and paid fur by such proprietor, the copyright
in such work so composed and paid for should be the property
of such proprietor, who should enjoy the same right as if he
was the actual author, hut after the term of 28 years
the property in works published in reviews in portions to
revert to the author, the publisher not to be at liberty during
the 28 years to publish such work in a separate form, with-
out the consent of the author, provided that nothing in the
act contained should prejudice the right of the author, who
by a coutract express or implied might have reserved the
right of publishing the work separately ; but such author
should still be entitled to the copyright, without prejudice
to the publishers right of publishing the same in periodical
publications. It was contended that the defendants had
clearly infringed the plaintiffs' copyright. since a variety of
articles contained in the plaintiffs' work had been copied into
that of the defendant. In one number of the Medical
Times there was a place set apart for such articles, to which
the following heading was prefixed " These are the only
articles of interest in the last three numbers of the Medical
Gazette." So that the defendant had not only taken
what he considered to be the only interesting articles, but
had at the same time depreciated what he did not copy.
Mr. Rolt and Mr. Fooks for the defendant, contended
that the plaintiff had no copyright in the articles published
in the Medical Gazette. It was stated upon the affidavit in
support of the motion, that the editor was paid for: the
contributions, but in fact the articles were written by a
number of contributors, and there was no allegation that
such contributions were paid. The editor might have
procured the articles from friends without payment, or he
might have taken them from sources common to both ; but
unless the plaintiffs could show that they had paid for such
articles, they had no copyright in them under the statute.
It was also contended that there had been only such copying
from the plaintiffs work, as was fair and usual in all
literary publications. It was common for all journals to
take from each other a portion of their contributions, and if
this injunction wero granted, it would alter entirely the
system upon which every periodical was conducted.
The Vice-Chancellor said he thought before he interfered
by injunction to stop the publication of the defendants'
work, the matter ought to be tried at law, and for this reason
that when his attention was drawn to the language of the
plaintiffs' affidavit, as contrasted with the language of the
18th sec. of the stet. 5 and 6 Victoria, c. 4b, he was of opi-
nion the plaintiffs had not sufficiently made out that sort of
derivative copyright which they ought to have obtained to
satisfy the terms of the act. The object of that statute was
to give a new species of copyright in periodical publications,
meaning thereby such works as should come out from time
to time, containing miscellaneous information, but it was
expressly stated that the contributions to such works were to
be paid for. Upon the plaintiffs' affidavit it appeared that
Morn. Longman and Co. had paid to the editor an annual
salary, and that such editor for the consideration aforesaid had
supplied the articles and other matters printed and published
in the Medical Gazette, upon the terms that all copyright in
the Gazette, and in all literary matters supplied thereto,
should belong to, and be the property of, the said firm ; but
it was not stated that the contributors were paid for their
contributions. The meaning of the 18th section of the act
clearly was, that if a publisher of a periodical work em-
ployed a person to write articles for it, and paid him for
such articles, with an agreement that the copyright should
belong to the proprietors, that then the proprietors should
have the copyright of the periodical work, including all
the articles therein. If the case had remained upon the
affidavit of the plaintiffs, it would have appeared that the
person editing the Medical Gazette had himself composed
all the articles; but it was clearly not so: the edi-
tor had been paid, and whether he had paid the
contributors or not, was nowhere stated. Under these
circumstances, he thought that Messrs. Longman and
Company had not entitled themselves to the copyright
under the 18th section of the act. It was very possible, con-
sistent with what was stated, that the matter had been over-
looked, and that the editor hid been employed to deal with
the gentlemen who composed the articles, and that payment
had been made in such a manner as to constitute a payment
by the proprietor. But on this subject there was an infirmity
in the affidavit. Still his honour thought it never could be
said that if a publisher became the owner of the copyright
in certain compositions, any other person had a right to
copy them without stint. That would be contrary to
the express terms of the statute, and it would he contrary to
honesty and common sense. As, however, there was this
infirmity in the affidavit, the injunction must be refused, and
the plaintiff might bring such action as he should beadvised.
Before Vice-Chancellor Wlgram.
WOOD V. ROWCLIFFE.—JURISDICTION OP THE COURT
TO DECREE THE DELIVERY VP OF SPECIFIC CHATTELS.—
The argument in this case was heard on the 16th inst., when
Mr. Itomilly and Mr. Southgate appeared for the plaintiff;
and Messrs. Kenyon Parker, Rolt, Ilislop Clarke, and
Bilton, for the defenitants. The case alleged by the bill was
that certain specific fflattels, described in an inventory, were
placed in the possession of Elisabeth Wright, to be
held by her as the agent of the plaintiff ; and that,
in breach of her duty to her principal, she had
executed a bill of sale of these goods to a third party, by
whom they were about to be sold. The bill,which was filed
against Elisabeth Wright and the party to whom she had
executed the bill of sale, prayed that the plaintiff might be
declared the sole and exclusive owner of the chattels in

question ; that the defendants respectively might bo decreed
to drliver up possession of the same to the plaintiff ; and
that they might respective be restrained by injunction
from porting with the goods to say person other than the
plaint:tf. The questions were—first, whether the court had
jurisdiction to protect, by injunction, the possession, and
decree the delivery up of specific chattels, though
the loss of such chattels might be adequately
compensated in damages; and secondly, whether the
evidence of agency on the part of Elizabeth Webster, and
of the identity of the goods claimed with those left in her
charge, was sufficient to establish the plaintiff's title to a
decree.
His Honour, who had reserved his judgment, observed
that there could be no doubt that the court, in a proper case,
had jurisdiction, at the instance of the owners of goods, to
prevent improper dealings with the goods by their agents, or
persons filling the character of agent; and that the right to
be protected in the use or beneficial enjoyment of property in
specie, was not confined to articles possessing any peculiar
or specific value. The question as to the plaintiff's title to
the goods was more open to doubt; and as the case disclosed
by the pleadings and evidence in the cause was not such as
to entitle the plaintiff to an immediate decree, the bill should
be retained for a year, to enable him to establish his title at
law.

COURT OF QUEEN'S BENCH.
roans.—Sittinp at Guildhall, before Lord Denman and a tom-
mon jury.
ROOFER LAIIRIL—LIABILITY OP A MEMBER OP THE
PROVISIONAL COMMITTEE OP A RAILWAY COMPANY POU
ADVERTISEMENTS OP THAT COMPANY.—Mr. Martin, Q.C.,
and Mr. Hughes were counsel for the plaintiff in this case,
who sought to recover the balance of an account for adver-
tisements of a project:called " the Great Western, Southern,
and Eastern Counties, or Ipswich and Southampton Railway
Company." It was sought po charge the defendant, as
a member of the provisional committee of that
company. The evidence on that point was, that the name of
the defendant was forwarded to the promoters of the com-
pany, by a gentleman named M'Dougall, for insertion in the
list of the members of the provisional committee, and that
the defendant on the same day expressed his approval of Mr.
M'Dougall having so forwarded it. On all other points in
the case the counsel on either aide came to an agreement
during its progress.—Mr. Butt, Q.C., with whom was Mr.
Warren, submitted, on behalf of the defendant, that the
plaintiff must be nonsuited, as, beyond the simple fact that
the defendant was a provisional committeeman, there was
no evidence to fix him, no evidence of his having
attended, or having been summoned to attend any meeting,
of his having seen any prospectus containing his name, or
having known that such a prospectus existed. Lord Den-
man, however, refused to stop the case, and Mr. Butt they
submitted the same argument to the jury on the question of
fact. Lord Denman told the jury that the que4 ion was,
whether the defendant bad employed the plaintiff to do this
work. The affirmative of that question might be proved by
showing conduct on his part that raised the impres-
sion that he was one of a body of co-contractors,
constituted for the particular purpose which the work
subserved. The defendant mast have had some intention
when ho authorised his name to be inserted in the list of
the committee, and it could not be supposed that such inten-
tion did not extend to the publishing his name to the world
in connexion with the project. The question then would be,
what inference had any one of the public a right to draw
from the fact that the name was so published ? The answer
was, any inference which the terms of the prospectus justi-
fied, and such inferences also as the jury thought were
to be deduced from the meaning which their exlie-
rience and knowledge of the world would tell them
had been understood to attach to the consent to be
a member of a provisional committee, at the time ithad been
given. If they thought that thereby was understood, and
must have been intended, an authority to pledge the de-
fendant's credit for everything necessary for carrying out
these projects, for constituting this company; if they also
thought that advertisements were necessary for constituting
the company ; then their verdict ought to be for the
plaintiff. The chief question for them, therefore, was
this : —Could they, or could they not, in their
consciences say that the defendant, by authorising
his name to be inserted in the list of the members of the

provisional committee of this company, had held out his
name to the world as that of one ready to pay for such work
and services as might be necessary for forming it ? The jury
at once returned a verdict for the plaintiff. A bill of is:-
eeptions was tendered, and Lord Denman acceded to an
application for a copy of his note, in order that the bill
might he drawn up therefrom. A verdict wu taken for the
plaintiff in two other cases, arising out of the same trans-
action, subject to the ultimate result in this.

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