The Sun.
London, England, 1826-08-07 00:00:00

LANtt INTELLIGENCE.

COURT OF CHANCERY.—(This Dar.)
IMPORTANT TO ,PUBLISHERS.
NtAWMAN AND OTHEILS rl. TEGG.
His LORDSHIP, upon taking his seat, proceeded to ex-
press himself to this effect in the present case :—The motion
that was heard before him, which employed all Friday and
Saturday, was a motion made by plaintiffs, in number, as
represented from the bar, twenty-one, stating themselves
to be entitled, as owners of a work called by the Solicitor-
General Encyclopedea ilifetropolitana, and by Mr. Shad-
well Encyclopedia Metropolitan. The Court would not
presume to decide which was the beet mode of pronuncia-
tion, but would take it as the Solicitor-General repre-
sented it to be dea. The application to the Court was,
that the Court might prevent, by Injunction, the pub-
lication of another work called the London Encyclo-
pedia, a lesser work. In the first place, there was some-
thing like an insinuation that the appearance of the two
works so much externally resembled each other, that the
latter might be taken by the public for the former, but
this could not be maintained. There was, indeed, a
prospectus attached to the lesser work, which might be
considered as announcing it to he as much a ;Metropoli-
tans work as a London Encyclopedia; but upon the prin-
ciple of Kirdle v. Hodd, the Court could not, from that
circumstance..say the defendant was publishing the plain-
tiffe work. Another objection was, that the plaintiffs had not
shown a title to the work. The Solicitor-General said, if the
Court thought it necessary he would clear up any defect upon that
point by affidaVit, but that he did not choose to do so upon the
mere assertion of Counsel that it had not been made out. The'
history of the thing was this :—There were three persons entitled to
the Encyclopedia Metropolitana originally ; one was Mr. Cur-
tis, in a third, who had been represented to be the Editor of
the other week ; another was a Miss Richardson, who, whether
she supplied talent, or money, or both, was admitted to have been
the owner of a third ; and Mr. Fenner, whose assignees some of
the plaintiffs were, was the owner of the other third. Supposing
there had been that sort of interest in all the three, which they
could denominate a title, in the larger work, whatever ques-
tion there might be in some cases u to the copy-right such as
whether it could or could not ;mass without writing, where it
passed in law, it would be very difficult to maintain that it ought
to pass in writing. Mr. Fenner became a bankrupt,. and, there-
fore, his right passed by law to his assignees. But whether they
had subsequently become owners in their own right, as
had beeu intimated by the Solicitor-General, or not,
was not very. material ; because if they were assignees, their
duty to all the creditors of Mr. Fenner, was to make the
most of it, and if they were owners for themselves by purchase,
they were entitled to say they should have the protection of the
Court in respect of the two-thirds, if a case was made out for it.
'When the Court spoke of two-thirds, it was right to advert to the
circumstance that Mr. Curtis had sold his third to Mr. Fenner.-
1 His case might very fairly be represented as a hard one, but when
men entered into bargains they were hound to abide by those
bargains. When he sold his share to Mr. F. he took in payment of
it a bond payable after demand ; that demand was unfortunately not
made till after the bankruptcy of Mr. F., and the bond could not after-
wards be proved under the bankruptcy, nor could Mr. Curtis be con-
sidered as having a lien in respect of it on the subject, which was
the consideration for which that bond was given. The case of
Mr. C. was therefore a hard one, but one from which he could
not be relieved. With respect to Miss Richardson, all the Court
knew about her title was, that the defendant had slot, by any affi-
davit or answer, denied the title of the plaintiffs to the whole
work; and if the thing rested upon that, if any contradiction
had been given seriously to the assertion of title in the plain-
tiffs, the Court would have been bound to have given AU oppor-
tunity to have made affidavits on the point. But in a case
in which that might probably occasion a good deal of expellee to
both parties, it was very advisable to avoid it if possible. Another
eircutustance had been much pressed upon the Court, which was
the delay attending the filing of the bill. This had been very
considerably accounted for, from (what is feet, did not appear to
the Court to have been sufficient done yet,) the necessity of ran-
slacking those Looks, in order 'to see how much of the plaintiffs'
work had substantially been incorporated, or infused into the de-
fendants' work. Therefore, if further time had been necessary
for this alsci, they would have been entitled to it. The prin-
ciples upon which the Court granted injunctions, were so extremely
well known, that his Lordship only had thought it necessary
shortly to refresh his memory by looking into them. By looking
into she note in Eden's edition of Drown's CluoUlry'Reports,
and the ot4e of Carman v. Boils, sit might be kitaten with re*.es
to the principles that was necessary to know. In Carman e. Bulls
and Miller v. Taylor, it was stated that there might be an injulai-
tion against part of a work. lien the Court had, therefore, de-
cided that it would grant an injunction, either against part or the
whole of a work, it would depend upon the circumstances of each
case, or by competing the original with what was called the
piracy, in what way the injunction was to be granted. In the
cue of Reviews, British (:'titles, and so on, their very titles
might be made the covers of piracy, but where quotations made in
those publications, merely for the purpose of reviewing them, they
could not have the term of literary piracy applied to them.—
It was the seine with regard to the works at present before the
court. On the one hand, admitting. the works to be of great.
public utility, which the Court had no doubt they were, it was
contended by the editor anti owner of the lesser work, that there
was no such thing as a monopoly of his plan, nor was there any
such thing as a monopoly in arrangement ;. hut then the question
was, where the defendants were publishing a work of the same
nature and species of the plaintiffs', whether they were
not publishing partly their own, and partly the plain-
tiffs' ? In all the cases that had been alluded to in ar-
gument, such as Paterson's Rooh of Roads, the Court Calendars,
and many others, piratical acts had been established by the proof
of copying blunders. But still, what quantity of that matter so
marked by blunders was to be found in each, was an extremely'
material consideration, because, though this Court, had long enter.
tailed a suit by injunction with respect to literary property, yet,
in all probability, time Court would not do more than leave parties
to their fiction at law, where there might be only a few instances
of piracy, though it might be different where it was clear there
were a great many more, but which could not be detected without
great a deal of amiditionel inquiry. There was another question
in this case, which, as far as his Lordship could ascertain, was
not decided by any case, namely, whether ever there had been the
iuterference of the Court in a case precisely in point with this ?
The court, bewever, thought it very difficult to distinguish, in
point of fair reasoning, a work of this kind, front cases of other
works in which injunctions had been granted on the ground of
what was called piracy. In some cases the Court had referred it
to the Taster to inquire into the instances of piracy; in
othercates it had determined for itself by comparison, taking
care in the first- instance to steer its course in Snell a way
as to be able ultimately to do justice between the parties,
and therefore, in some instance', directing en account to be
kept until an action has been tried ; in other instances
and again calling upon the defendants to
di-
recting an 'action to be brought
. without ordering an account to
it gratin.' an injunction
be kept ad
well pressed by Mr. Horne, ;hat the plaintiffs
books, and
phuadtllmThneadapontirmntesl4t;o:Arransack the two marked the alleged
copied passages, but that the. defendants had not dud such time.
The Court, however, took it for granted that in a case where A
considerable number of blunders were proved to have been copied,
that that would be
before a jury, primajheie evidence that
the other parts were also copies. In
,the present case,
of
fertehfois case, the
q uratioonmtwt ought
asi *hetipoiers,ititinder
ttohegeriarictuttna the in-
junction,tattcee before the answer of the defendant CAM in; or whether
he, ought to have an opportunity first of making an affidavit with
respect to time extent to which the defendant knew his work was
a copy of the plaintiffs'. The plaintiffs could not know without
examining the whole of the works, but the defendant, or the per-
ampy
sone whom he employfrom theed, certainly could state by affidavit, how
far they supplied c
plaintiffs' book; so that they
could, if they pleased, inform the Court upon that point, without
getting it from the verdict of a jury. Consequently, the Court
by
of stating
d no objection to give the defendant the opportunity
affidavit how far those parts in the latter work, which were
exactly the same as the original work, were or were not copied
from the plaintiffe' work. The defendant might take a day or two
chnisemzeordosfh?pewwLekg,oiatend
the affidavit the r+-
to consider of this proposition, and if he determined on snaking
Court would receive it any morning in the
then give
prepared to pronounce his judgment
time case as it now stood. its opinion upon it, Litt no.ta,
Mr. floaxe Said lie would avail himself of his Lordship's per-
mission to consider of making time affidavit.
EYNK avaanamr ADinar
S.
Ilia LORDSIIa disposed of this case. -1Z
Eyre, who was
surety for a gentleman of the name of Main it
r.the. banking-
house of the dekndante, ilia
bond twitting to
to pay 2,200 L, filed I
insisting upon the grounds stated the bill, that as a
'moiety he was discharged. The eau v
one • •fleas an extremely bard
upon thephuntiff, and one in which there had already been a
great deal of litigation. The question was: whether Mr. Eyre
wail to Le considered-414 having Owed his contidoce in Mr.

Mainwaring, who had left the country, or, in others, who had
abused it. The bill stated, that the defendants, subsennent to the
plaintiff's becoming surety, had taken a bond front Mr. Main-
' Waring for 10,0001., to which the plaintiff was
no party, but by
which he submitted he ss-as to be considered as discharged. -Ano-
ther circumstance vras, that there had been a dispute between
the plaintiff and defendants in 1819 (the bond having been given
in 1814), about the bond, and yet that they had taken no
proceedings against him upon it for five year* afterwards, and that,
therefore,- on the ground of delay (11r. Alannering having
alippped out of the country in the meantime); the plaintiff ought
to be considered released from his liability. The Court had given
the subject the greatest consideration, but could find no ground on
which the plaintiff could be held as released front his liability, and,
therefore, the injunction that had been granted, restraining the
def..--ndants from recovering upon their judgment, would now hive
to be dissolved. The mere circumstance of a creditor contracting
an additional debt with a debtor could never relesse a 'surety for a
prior debt.

The Sot.terroa-GsNELaa. appeared for Mr. Eras. He said,
though the ease had been tried both in the. Courts of King's
Bench and Common Pleas, hie client never had bad a fair trial.
Those Courts had got, as they generally did,. hold of a scrap of
the case, and upon that scrap decided the whole.
Mr. HART, contra, hoped his learned friend would DOW think
he had had a fair trial in this Court.
The Sumerroa-GENtaat was hound to conks that he had.

VICE-CHANCELLOR'S COURT.—(Tnis Div.)
HOLDEN w. /Laval).

This was application on behalf of the Secretary to the Commis-
sioners appointed by Act of Parliament,
assisting in the executionof public worki, &e., by offering Exchequer Bills on security for
an order, to be paid tke entire amount of their claims, out of the
effects of the defendant (a bankrupt), before any other creditor
should receive • dividends according to the tenor of the Act.
The defendant, Sir John Elford, with ruin' other'a, applied in
1824, to the Commissioners% ° hOtalt of tl»+ Plymouth Bail
Road Company, fora loan oflB,ooo/. to carryon that work, whiCh
sum they received—in a short time after they lipplied for 10,000/.
which aim was also advanced on their peoonal security in 1825,
four of them became bankrupts, and application having been then
made to the Lord Chancellor by the Coursuiasioners, fur priority of
payment, his Lordship ordered that the 25,000/., being the amount
for which the Commissioners were security, should be paid before
any sum should be advanced in discharge of any other debt. This
was accordingly done, and a mortgage on the tolls of the rail road
was given for 10,000/., being what remained unpaid, including
principle and interest. The defendant having lately become a
bankrupt, this petition Was preferred to enable the Commissioners
to dispose of the mortgage on the tolls for his share of the 10,000/,
being one-fifth, unless they were paid the entire of their claim on
the estate.

Mr. SHADWELL and Mr. 'lowa appeared for the plaintiff, and
Air. Caaaarr for the defendant.

The latter made some objections respecting the construction put
on some clauses in the Act, hut they were overruled by the Vice-
Chancellor, who said, that the Comtnissioners were clearly en-
titled to a priority to the amount they claimed, and directed en
order for the sale of the mortgage, and that one-fifth be
carried to the account of the defendant.