The Sun.
London, England, 1839-02-28 00:00:00

VICE-CHANCERY.-(THIS DAY.

COLBURN V. MARRYAT—THE PHANTOM SHIP. •
The arguments in this case, which were not concluded
yesterday, were resumed to-day.
Mr. Jacob, Mr. Chandlers, and Mr. Bacon, were Coun-
sel for the Defendant, Captain Marryat ; and Mr. Knight
Bruce and Mr. Sutton Sharpe for 11r. Colburn.
Mr. JACOB said that in pursuance of the notice that had
been given he had now to move on behalf of his client,
Captain Marryat, that the injunction which had been
granted restraining him from selling or disposing to any
person except the plaintiff, either in France, the United
States, or elsewhere, any copies of a work written
by himself, entitled the Phantom Ship, might be dis-
solved with costs. The injunction was obtained from his
Honour ex parte on the 16th of the present month, upon
the bill filed by the plaintiff, and the affidavit in support of
that bill. According to the statements of that bill, Mr.
Colburn, the plaintiff, was a bookseller and publisher,
carrying on business in Great Marlborough-street, and
was also the proprietor of the New Monthly Magazine, in
the numbers of which, from the Ist of March, 1837, up to
the month of February, 1838, there were published certain
articles, under the title of the Phantom Ship, written by
Captain Marryat ; the last of those articles was published
previous to the agreement of the Ist of January, 1839.
The articles which had been so published were the
continuation of one, but did not form a complete
story : the matter comprised in such articles was
sufficient to form one volume and a half post octavo, each
volume consisting of 300 pages, and 22 lines to each page.
On the let of January, 1839, the plaintiff agreed to pur-
chase of Captain Marryat the exclusive right of the whole
work called the Phantom Ship, including as well the copy-
right of that part of the work which had bean already
published in the Monthly Magazine, as that which re-
mained unpublished. The agreement to purchase the work
was to the following effect :
" London, Jan. 1, 1839.—Memorandum of an Agreement
entered into this day, between Captain Frederick Marryat,
R. N., of Langham, Norfolk, on the one part, and Henry
Colburn, of Great Marlborough-street, publisher, on the
other part—First, for and in consideration of the terms
hereafter mentioned, the said Captain Marryat has hereby
disposed of and assigned to Henry Colburn the exclusive
copyright for three years, from the day of publication, of
his new Naval story, called the Phantom Ship, to consist of
three volumes of at least 300 pages in each volume, and
22 lines to a page. Mr. Colburn to pay to Captain
Marryat by bills at nine, twelve, and fifteen months, the
sum of 750/., and to be at liberty to print and sell for his
sole use and benefit 1,750 copies, free of any further
charge, and after the 1,750 copies should have been
sold, Mr. Colburn was to be at Berty to print
as many more copies as he pleased during the remainder of
the term' of three years, on payment of the further sum of
250/., but should Mr. Colburn not think fit to print any
more than 1,750 copies, he was not to be subject to any
further payment beyond the sum of 7501. ; the work to be
published at the time Mr. Colburn might judge most ad-
vantageous, but the period was not to be protracted beyond
the Ist of October, 1839. The matter of the last two articles
in the Magazine was not to appear till after the publica-
tion of the separate work." The affidavit of the
plaintiff stated that upon the execution of the agreement
Mr. Colburn gave the three bills for 2501. each, and be-
tween the date of that agreement and the Ist of February,
Captain Marryat delivered to the plaintiff the greater
part of the manuscript in continuation of the story which
the plaintiff had published. It was then stated that on the
15th of February, 1839, Captain Marryatt sent a Mr.
Howard to the plaintiff to communicate with him on the
subject of the publication of the Phantom Ship—that Mr.
Howard, by the direction of Captain Marry at, intimated
to the plaintiff that, unless he would consent to
some further terms for the benefit of Captain Marryat,
the latter intended to send the manuscript copies of the
remaining unpublished part of the work to France and the
United States for the purpose of selling and disposing of
them there, so that the work might be published com-
plete in those countries before it was completed in England.
The Bill further stated that on the plaintiff remonstrating
with Mr. Howard with reference to the intentions of
Captain Marryat, and stating that it would be a direct in-
fringement and violation of the agreement, Mr. Howard
stated that Captain Marryat had taken the advice of his
solicitor, Mr. Powes, who had advised him that notwith-
standing the agreement Capt. Marryat was at full liberty
to sell the work to either a Paris or American publisher.
Such were the statements of the plaintiff's bill, to which
Captain Marryat had put in an answer, and by that
answer he admitted that the plaintiff was a bookseller
and publisher carrying on business to a great extent in
Great Marlborough-street, and that he was also the pro-
prietor of the New Monthly Magazine, in which work
was published several articles written by the defendant,
entitled the Phantom Ship. The defendant after ad-
mitting the articles of agreement, stated that in
the month of April, 1837, he went on a tour
to the United States of America, and during his
residence there be completed the work called the Phantom
Ship, and having been informed that by the laws of that
Government, an author, resident in that country, would
be entitled as a resident to a copyright throughout that
country in any work he might publish there, he did, during
his stay in the United States, take out a copyright there,
and entitled himself, as he verily believed, to a copyright
in that country of the Phantom Ship, if he should publish
the same there within a reasonable time after his
departure ; and the defendant contracted during his stay in
the United States to sell to an American publisher there
that copyright which the defendant was entitled to, and he
undertook to send from England on his arrival in this
country,' a copy of the work, so that the same might be
published there before the time should elapse which would
destroy his copyright as a resident. The defendant further
stated, that prior to his visit to America he had for a valu-
able consideration contracted to place, and had placed
with the plaintiff, for publication, the copy of a work com-
posed by him called the Dog Fiend ; that the
plaintiff never clamed or pretended to have purchased
by the agreement more than the right of publication in
this country of that work. The defendant stated that he
had composed other works, the copyright of which he 'awl
sold in England to publishers, and in such ease; 'he had
been permitted to sell in other countries f',.
the copyright, and in no case had any publication
objection been made
to his doing so by the plaintiff or any
The defendant further stated, other purchaser.
iat he arrived in England
ns j
from America in Dece.
the Phantom Ship. per, 'lB'3B with his manuscript of
completed, and upon his return the
plaintiff sent 17,0 persons to him to treat in his behalf for
the purr..l-orse of that work, stating that he had lost upwards
of 400/. by the purchase of the work called the Dog Fiend,
and in consequence of those representations, although
he did not consider that the plaintiff had any claim on him
on account of such loss, yet as he was anxious that the
plaintiff should not be a loser by his purchases from him,
he consented to sell to the plaintiff a limited copyright in
• the Phantom Ship, for the sum mentioned in the agree-
' ment of January 1839, being 500/. less than he had
received from the plaintiff for the Dog Fiend, and less
than he might have received from another bookseller. That
in the course of the treaty between himself and the plain-
tiff, he had told him that he had signed an agreement in
America for the sale of his copyright in the Phantom Ship
there ; and that, if the agreement of January 1839
amounted to a purchase or assignment of the copyright of
the defendant in the Phantom Ship throughout the whole
world, it was a surprise on the defendant, and ought to be
reformed, or not specifically performed, as against the de-
fendant. Then the answer stated, that between the date of
the agreement and the Ist of February, the defendant gave
to the plaintiff the whole remainder of the manuscript el the
continuation of the Phantom Ship, and part of that manu.
script was published in the February Number of the New
Monthly Magazine, but not more than enough to make
about 50 pages, and that the whole of the remainder of the
manuscript of the work, forming nearly half of it, accord-
ing to the terms of the agreement, remained to be pub-
lished. Shortly before the 28th Jan., and as the time drew
near for defendant sending a copy of his manuscript to
America, to be published there in March, it occurred to the
defendant to consider, whether the publication in America
might not be indirectly injurious to the plaintiff in a way not
contemplated by him and the defendant when the agreement
was executed ; and if such a result should follow the plain-
tiff might be dissatisfied, the defendant therefore deemed it
right to communicate with the plaintiff on the subject, and
to give him the option of preventing such publication in
America on the terms of defendant receiving the same
compensation as he would have received from the American
publisher ; but the defendant did not, as he had already
made a considerable pecuniary sacrifice in his sale of the
copyright to the plaintiff, consider that he was required
entirely to give up the American publication. Accord-
ingly, on the 28th of January, 1839, the defendant wrote to
Mr. Hook, the editor of the " New Monthly Magazine,"
the following letter, in order that it might be communicated
to Mr. Colburn

" United Service Club, Jan. 28, 1839.
" My dear Hook,

" I called upon you at the Athenzeum, as I wished to speak
to you upon several points, but one presses, as it is neces-
sary that I decide whether the manuscript which is copy-
ing goes out to America or not in the next month's packet.
The facts are these, since my return home Colburn has
entered into an agreement with me for the Phantom Ship
to be inserted in the Magazine, and afterwards published in
three volumes. When I first entertained the idea, I Fuld
no thought of my American agreement ; but Colburn
offered me so small a sum, that I mentioned it to him,
stating that I should lose money if I did not adhere to
them. This he cared little about, and lie made the agree-
ment, leaving ma at full liberty to perform that made in
America. Now it was much the same to me whether I
received my money from America or Colburn, and I
felt inclined to let Colburn have a bargain ; but it
has since occurred to me, that instead of a bargain
Colburn may sustain a loss, and w'aat is more, that you
will be disappointed by the r€salts, My agreement with
America is the sale of the copyright as a resident, a
doubtful right, but which r/ll not be interfered with, and
bring in great profits if the work is published two or three
months after u 1.7 departure from the country, but if de-
ferred low:el-it would be pirated there is no doubt. Now the
sale of the Phantom Ship in America would not probably
interfere with it here, but it would probably reach France by
the first packet, and there be reprinted by Galignani in
Paris. It is to be published in America in March,
and I fear would appear in France in April, and
would destroy the value of it in the Magazine
as well as in a work subsequently published. This
did not occur to me at the time, nor, probably did it
to Colburn. I mention it to you that you may not say
that I have disappointed or deceived you as editor of t,,d
Magazine. It s well worth thinking off; but it 111,,,,5t h,
decided aeon. 1 care not for the Americans, provided I
7.,..na Out idemnified ; but I must not lose nie::e money, j
am perfectly content to let the mat,t,er:taivnidA aasßi t is., or to
yAseiirTs,
e
make another arrangement, if such, should be yours end
Colburn's wish, only dert't 1,41-.. me me after this explanation.
Most truly yours,
.'r'ntdo
The defendant believed that Mr. Hook communicated
that letter to the plaintiff, as Hook returned an an'
the effect that he could not make the plaintiff understand
it, and that he had better see him himself. Alr.
pain
Howardl-
then at the request of the defendant called upon the
tiff, who sent him back the following written answer :