The British Press; or, Morning Literary Advertiser.
London, England, 1803-03-18 00:00:00

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Lehr► INTELLIGENCE.

LINCOLN% DIN IIkLL. M %se* n

•
Foram Paraders of the Case of Noon v. KIRIT,
rrfortrd is ear Parer e Trudy.

Mr. Richards and Mr. Wetherell %hewed cause on
the part of the Plaintiff, why the injimetion which
Lid been grareed in this cause should not he dis-
solved. The material fads of the case were shortly
these: the Plaintiff, Hogg, was a proprietor of a
nav periodical puls:icatien, called " Tht
Marna, or Extraordinary filagazine," which (not
(busing his own name to appear) he agreed with ,
the Defendant and permitted him to become the pub-
lklier and vender of the same. Soon after the pub-
licatiou of the first Number, some differences occur-
red between the Plaintiff and the Defendant, when
it was agreed, that the Defendant Kirby should
cease to become the publisher and vender, as soon
as certain bilk which he had accepted for the
Plaintiff Hogg were given up and paid. This
ageement was fulfilled by Hogg, upon which the
pendant Kirby, in conjunetion with the Defen-
dant Scott, immediately advertised and published a
Periodical Work in all material respeas similar to
the Plaintiff's, called a The Original Wonderful
falusteun," representing the =me to be the com-
mencement of a icy :trier of the work of which
he had formerly been the publisher and vender, and
aCtually transcribing many articles from the Maga-
sine of the Plaintiff Hogg,.
Upon this, the Plaintiff tiled this Bill against the
Defendants. and obtained the usual injwidion to re-
grain the publication, until the answer was put in.
The Defendant Kirby in his answer, denied that he
had any intention of imitating or infringing upon
the Plaintiff's Work, and submitted that under the
statute of Queen Anne, the Plaintiff could establish
no property in the war k.
Mr. Recll AIMS and MT.WITHILRELL.--Tnis case
may he reduced to three Points. Ist. That the
Plaintiff clearly has that species of property in this
w Irk, which is protetted by the Statute. 2ndly. In
this case a propery is established, at all events
ag mast the Defendants, by the agreements between
Ca: parties; and 3dly. By the terms of the trial
committed to the Defendant. It is admitted that
the Defendant was merely the agent of the Plain-
tiff to publish and vend, without any risque, any re-
sponsibility, or any exertion of skill, or attention in
ti.e work ; and it can hardly be denied that, in every
material feature, there is the greatest resemblance.
The tide-page and frontispiece are neatly the same,
bet these material features in the identity of the
work, are now to be represented as fire traturd, in
which occupancy can confer no tide ; but there are
cases at law, which establish property in a Daily
Newspaper, and this Court would certainly inter-
fere to prevent the assumption of the same name
by a su6sNytent paper, by which the other was pre-
viously known.
LOINDCHA•CIILIIIt.—N I recollce a case of a man
who kept a shoemaker's shop in the Strand, of some
repute, and whose name was :tfylvrt, which was
r item ever the door. An interloper came and
npessed a shop direaly opposite, thinking to steal
iris neighbour's customers, by a very simple altera-
a.4l its the name. which he :axed to his shop in this
suanneri,_ My, Sea Vrorommier."
Mr. RICH Supposing a work, like the
Court Calendar, though I cannot have a monopoly
rn the name, yet if a man takes the same title, and
- I prove him guilty of deceit. and that he has aken
the most valuable part of my work, theo surely I
have an aa;on against hips; or if a man calls cloth
with a vit.:kW-4r stamp, or gives the name of a
%crow. -lakes, there also an :onion will lie, but these
**
tesestions ate immaterial here, for as nn cranpensa-
tian ia way of damages could be recoveryrecoverei at law,
that ekatly establishes our right to resort to a
Court of Eaftity, which always interferes in matter
of agreenrent, for the breach of which a Court cf
Law cannot afford competent satisfaction. By the
agreement between the parties in this case, the
Plaintiff is clearly admitted the Proprietor, and this
include every thing which belongs to the en-
joyment and possession of that property ; as was
the case of Barrett and Blagrave, where the De-
fendant had covenanted with the Plaintiff, the pro-
prietor of Vauxhall, that he would not open any
house which should be prejudicial to that place of
entertainment. But leaving the question of pr petty
out of the.case, this was at least frlci comntsrom to
the Defendant, which must preclude the possibility
of his availing himself of a breach of that confi-
dence. Suppose a man sells the good-will of a
Newspaper • can he immediately afterwards go and
re-establish the same paper ?"
LORD CHANCELLOR.—" No; but you may estab-
lish another. I agree that it is a very different thing
attempting to publish the same."
Mr. WLTH sasia..—e Mr. Justice Yates says, in'.
his argument upon the great question of literary
property, that if it is.nut matter of property at law,
yet that it may be made stvii by agreement. But
suppose the case of
_mechanical inventions; though
a man has no patent, yet, as against the immediate
pet son be employs to execute his invention, he has
a mow- poly ex mortar. Blackstoue says, that con-
trall eiws trlerty ; and, were it admitted that the
Plaintiff could nut here assign a property to a third
?crson, tron.frrabiLity is no criterion of property."
Let us consider it on the ground of a frost reposed
in the Defendant. It here becomes the case of a

landlord. and tenant, attorney and client, and all
the others where these mutual relations subsist.
In the case of Thompos v. Stash*, in Ambler, con-
cerning Loin Cnr.sCERFIELD'S lATTLRS, that case
went upon a breach of trust. Lord Bathurst's de-
cree wAs not ratitaicrirm, but went merely on the
ground of thefidei communists, and he Wit; of opinion
Mat the receiver of a letter Was a trustee to do a ne-
gative ad, viz. not to publish. In the caw of Mr.
Pope's Letters, indeed, Lord Hardwicke said, that
the receiver of a letter may have a joiut property;
and if, where the rights are co-equal, this Court
would interfere, it is a much stronger case than the
present. suppose the case of an unpubli.4ied MS.,
the Court would prevent the publication or a copy
stol.'n, or snrreptitiously obtained, and the copy-
right does not commence till the aftaal puhlicnt4m;
1: is meet property in orrnii,i till then. Or if an
artist is pernitted to study in the gallery of a no-
Woman, v:;:) has a large collc&ion of pieturec, and
u is to take copies, whica he atternprrd to punlish,
vei•rthl not the Court there interfere? Perhaps it
roity he said, that the question is nct racti to inter-
rere bare, and the case of Hill And Blanchard may
e cited, which occurred under the charter to the


. J

Card-ntaltaes Comp:" and was an attempt in the '
Defendant to assume the stamp of the Great Mts.
gul's head, which was the charaCteristic mark of
the Plaintiff's cards ; hut Lord Hardwicke refuted
to interfere there, on the ground that the chatter
had expired in operation, though, to be sure, he put
the case of two inns with the same sign. Hete the
Defendant attempts to establish himself upon the
ruins of a breach of trust, the rule concerning
which forbids a trustee to become locupletior injurtti
altering. But if :'irse violations of faith are not to
be restrained, we have in.leed got back to the pasto-
ral ages of the Court of Chancery.
Sic voi apes.
If it is to be sail that the situation of trustee has
ceased, it may be answered, that he cannot avail
himself of what he has acquired when trustee, he
must be bound retrospeCtively, he cannot dissolve
his liability by putting an end to the relation by
which lie was bound.'
•
Mr. R omit. y and Mr. JOIIKSTONZ, for Defen-
dants, contended that the cases which had been
quoted did not apply: that this was not the case of
an original unpublished work, but one which was
a mere transcript of others, without one original
article, and that the only question to be decided
was, It there any 1 terary property here? Literary pro-
perty certainly does not consist in the actual origi-
ginality of idea, but in the different arrangement
and evression of ideas from any used before: but
here there is neither piracy nor plagiarism. This
is a mere commercial adventure, a trade which has
no analogy to literary property ; and the Defendant
has not published the same thing, but merely upon
the same subject. - The names of the authors are
all different, though it must be admitted that these
names are merely fiaitious.
Loan CIIANCLLLOII.—"I have some doubt whe-
ther a man who thus starts with the imposition of a
he, should be permitted to come into a Court of
Equity at all."
Mr. Ro:titax. But independent of all these
questions, and the arguments about trusts, the case
is different here • for the Plaintiff has himself put
an end to all mutual relation, by taking away the
situation of Publisher from the Defendant. The
common equity of the Court is not to grant injunc-
tions on breach of agreement ; and the ground upon
which an in.iiinaion was granted in 'Thomson and
Stanhope was, that the actual property was in Lord
Chesterfield. The Defendant has positively sworn
that he did not intend to imitate the Plaintiff's
work, and his answer must be taken as decisive in
this stage of the cause. Upon the whole, this is not
a ease for the Court to interfere ; but the Plaintiff
should be sent to establish his right by the verdia of
a Jury at law.
The LAID CHANCELLOR, after taking time to
consider the case, gave his opinion at length. After
stating the case and reviewing the arguments urged
at the Bare he said, it clearly appeared to him,
that it was the Defendant Kirby's intention to con-
vey to the public an idea that his work was merely
a continuation of Hogg's, and thus to impose both
upon the public and the Defendant, for the titles
were very nearly the same, and he had actually
begun his first number with the concluding word of
Hogg's preceding number. His Lordship doubted
much, whether any literary property could be esta-
blished here, but that was a proper question far
a Jury. Under all the circumstances, considering
the manner in which Kirby had first obtained a
knowledge of the Plaintiffs work, in the situation of
his agent, his Lordship thought the Court should
continue the injunction, until a Jury had decided
the question of literary property or not ; and that in
case they decided against the present Plaintiff, then
the injunetion must be dissolved. His Lordship
ordered accordingly.