The Sun.
London, England, 1835-07-16 00:00:00

NORTON V. CHURTON AND SLILL.
Mr. KNIGHT moved to dissolve an injUnalon-obtaiiied in
this cause to restrain the defendants fronaritibliilihig itlyOrk
bearing the title of The Coquet and other Tales, by the
Hon. Mrs. Norton, being in fact a reprint of certain tales
written by that Lady, and originally published in the pe-
riodical La Belle Assembles. The case involved two ques-
tions of considerable importance—the one as to the weight
of evidence, the other as to the construction to be put
upon a written agreement. In the mean time he would re-
commend it to the consideration of the Court, that inasmuch
as the work was ready for publication some arrangement
should be entered into, whereby the publication might
be suffered to proceed, an account of course being kept of
the profits, until the rights of the parties should be ascer-
tained. The point, however, which the Court was called
upon now to decide might be thus stated the Court had
to determine to whom did the copyright of articles simply
furnished to a periodical belong, ultra the use made of them
in the periodical in which they were first published. This
had' been long a vexata questio in the literary world, where-
upon a great variety of opinions was entertained.
The VICE-CHANCELLOR—Though it may be a vexata
questio among the literati of the present age, there can be
no doubt upon the point entertained in Westminster Hall.
They remained, no doubt, the property of the writer, except
so far as he might have stipulated in writing to part with the
copyright of them.
Mr. KNIGHT continued—The Court would have to de-
cide what was the effect where a mere transmission of the
articles took place, and payment was made without any
mention of the ultimate property in the copyright. In this
case it was not disputed that the publication in question
was now the property of his client, Mr. Churton, upon an
assignment from Mr. Bull his late partner, and yet Mr.
Bull now came forward to support the plaintiff's case, and
made an affidavit contrary to the very words of his own as-
signment. The plaintiff's bill represented that . June,
1832, a verbal agreement had taken place between Mrs.
Norton and Mr. Bull, for the editing of the Magazine, re-
serving to that lady the sole right of republishing such ar-
ticles as she herself should write in a separate form ; and it
then represented that a written engagement was subse-
quently entered into, upon the making of which it was
expressly but verbally stipulated that she should retain the
same right of separate publication. This agreement was
made in December, 1832, whereby Mrs. Norton agreed
to edit the journal, and to supply literary matter to fill
one sheet of sixteen pages for twelve mouths, for
which she was to receive the sum of three hundred pounds.
A new agreement, of the same kind, was represented to
have been entered into in December, 1833, for the suc-
ceeding half year. Now he should contend that the no-
tion of Mrs. Norton's having a title to the copyright of
these articles ultra the use of them in the Magazine could
not be sustained. Upon the written agreement alone the
parties must stand, and the Court must construe that agree-
ment. This being the case of a Lady of rank and fashion,
he wished most distinctly to be understood as not intend-
ing to cast the slightest imputation or even disrespect upon
her character, but. he felt it his duty to state, that this in-
junction was obtained from the Court under a most errone-
ous impression, and that the Court was kept in entire igno-
rance of a most important circumstance. Mr. Churton,
his client, had become connected in partnership with Mr.
Bull subsequently to the first negotiation with Mrs.
Norto.i. He, therefore, had no knowledge, of himself,
respecting what took place between these parties, and
he at first believed that the allegation to be found in
the bill, and in Mrs. Norton's affidavit, and also in that
of Mr. Bull, that the first agreement was parole, must
be correct. In 1834, the partnership between Mr.
Churton and Mr. Bull was dissolved, and the copyright of
the Magazine assigned to Mr. Churton. That gentleman
now discovered, to his astonishment, among some papers
which came into his possession upon the dissolution of
the partnership, that a written agreement between Mrs.
Norton and Mr. Bull was entered into so early as May
1832, when Mr. Bull became proprietor of the magazine,
together with the Court Magazine. It was remarkable that
the fact of a written agreement having been originally made
should have entirely escaped the memory of Mrs. Norton ,
and that she should have thereby so much misled the Court.
It was impossible that a special injunction, granted under
such circumstances, could be maintained. The Learned
Counsel then dwelt upon the fact that the affidavit of Mr.
Churton, which revealed this circumstance, and which was
filed in June last, had never been answered. The next
topic was the affidavit of Mrs. Norton, wherein the Learned
Counsel remarked upon a part of it which represented that
when the written agreements of December, 1832 and 1833,
were made, it was expressly agreed and understood that
the stipulation as to the separate right of publication should
still continue. Now, what was the language of Mr. Bull
upon this subject ? He says that it was tacitly understood
by himself, and he believed by Mrs. Norton, that the sti-
pulation should continue. This was a palpable contradiction
upon a most important point. Mrs. Norton produced a host
of affidavits by persons of literary pretensions, as to their
notions upon this subject. These persons indulged in a
new species of authorship, which might be called the line
of affidavit-making.

The VICE-CHANCELLOR—But equally allowing the in-
dulgence of fancy.—(A laugh.)
Mr. KNIGHT—There was an elegant writer, Miss Lan-
don by name ; there was also Mr. James, the author of
historical novels, a title strictly applicable perhaps to
what was called history ; but there was no affidavit to
account for the omission of the first written agreement.
Mr. Churion's affidavit stated the naturo of his con-
nection with this matter, and his utter ignorance of any
such verbal agreement as bad been set forth. He had
every reason to believe the Magazine was the whole
copyright of Mr. Bull, for, unfortunately, under that
impression be bad purchased it ; and he showed that on a
former occasion, when Mr. Bull applied to this Court for
an injunction against a periodical not inappropriately called
The Thief, he made an affidavit that he was possessed of
the sole and exclusive copyright of this very Magazine, and
upon that declaration restrained the republication in The
Thief of a tale called " Kate Bouverie," which had been
published in his periodical by Mrs. Norton. Then there
was the affidavit of Mr. Saunders, a rival publisher, and the
Court should be informed that this was in fact the suit of
Mr. Saunders. That gentleman was now publishing a no-
vel by Mrs. Norton, with the title of " The Wife." Mr.
Saunders was a skilful publisher ; his object plainly was to
gratify the public appetite with only one of Mrs. Norton's
works at a time, and he well knew if he could kick " The
Coquet" out of the field, " The Wife" would carry the
day.—(Laughter.) If, on the misrepresentation of the
title, therefore, and upon this attempt to join to a written
agreement a parole addition which was inconsistent with it,
having regard also to the circumstance that Mr. Churton
was not a party to this alleged parole agreement, the
Learned Counsel submitted that the injunction should be
dissolved.

Mr. KINDERSLEY, in support of the injunction, observed
that the general impression was that the first agreement
between the parties was the parole agreement of June in
the same year. As the fact had been so seriously com-
mented on, and as the Learned Counsel bad been taken by
surprise in this motion being urged on, out of course, to-
day, he had applied to the solicitor of his client, Mrs. Nor-
ton, who informed him that he was ready to make affidavit
that when he was instructed by Mr. and Mrs. Norton to
commence this suit he requested to have all papers in their
possession connected with the subject, and that Mrs. Nor-
ton examined her papers in his presence, but no such agree-
ment was found among them, nor had he any knowledge of
it, nor he believed had Mrs. Norton any recollection of its
existence till it was found by Mr. Churton
Mr. KNIGHT was perfectly willing to accept that state-
ment, as if it had been sworn to.
Mr. KINDERSLEY then said his clients were exonerated
from any wilful misrepresentation or negligent swearing.
That agreement, however, was in fact identical with the
written agreement of December, 1832,.
The VICE-CHANCELLOR—I have no doubt that the per-
petual exercise of the fancy does destroy the memory. This
is not the only mistake the lady has made. I allude to her
statement of an express understanding, where Mr. Bull
states only that it was tacitly understood.
Mr. KINDERSLEY endeavoured to show there was no.
contradiction.
The VICE-CHANCELLOR--I do think there is a contra-
diction.
Mr. KINDERSLEY then proceeded to contend that eircla
if there had been no agreement, the copyright of articles
inserted in a periodical publication remained in the autbac.
unless there was a special contract in writing to the corn.
And if it were not so, there remained no protections
to an author ; his productions might be improperly used
against himself. How annoying might it not be to the
future Lord Chancellor., or Master of the Rolls, or Vice-
Chancellor, to see his early literary effusions, or College
exercises, afterwards published as the work of the Lord
Chancellor, and so forth ; and yet that might be done with
no other object than to injure his literary reputation.
The VICE•CHANCELLOR—Perhaps ho might apply for
an injunction on the ground that Mr. Southey did, that the
work was so bad it ought not to have been published at all.

—(A laugh.)
Mr. KIN DERSLEY—In that case the work must be im-
moral, which was widely different from the present case.
He then proceeded to read the affidavit of Mr. Saunders,
which detailed. his mode of dealing with eminent literary
characters, among whom were Mr. T. Moore, ..Captain
Marryatt, and Mr. L. Bulwer, for contributions .to
not acquire righf t%' Th.rre ep *ub.as
lisp riodicals, and that it was the general uncieratiulding
owners
such
ch of
a contributionserodic al d
did
aep acutair ee. the
shape.