1855.

STEVENS v. BENNING,

THIS
HIS was an appeal from the decision of Vice-Chan-
cellor Wood refusing a motion for an injunction to
restrain the publication by the Defendant William
Granger Benning of a third edition of "Forsyth on
the Law of Composition with Creditors."

1854. Dec. 21.

1855.

Jan. 12.

Before The LORDS JUS

TICES.

Publishers

agreed with an
author to print,
reprint and
publish a work
by him at
their own risk,
on the terms
of dividing
equally with
him any profits

that there

might be after payment of all

expenses: and that if all the copies should be sold and another edi

By an agreement dated the 4th of December 1840, made between Mr. Forsyth, the author of the work, of the one part, and Robert Saunders and William Benning, publishers, of the other part, Mr. Forsyth agreed with the said Robert Saunders and William Benning that the said Robert Saunders and William Benning should print, reprint and publish the work on the following conditions, to which they also agreed :-That the said William Forsyth should fully prepare the whole of the said book for the press on or before the first day of June 1841, and that he would correct the proof sheets and superintend the printing thereof. 2ndly. That the said Robert Saunders and William Benning should direct the mode of printing the said book, and should bear and pay all the charges thereof and of publishing the same (except as thereinafter mentioned), and should take all the risk second and

tion should be

required, the

author should

make all necessary alter

ations and ad

ditions, and the publishers should print and publish a

subsequent

of editions on the same terms.

After the publication of the first edition the firm of the publishers was changed, and the interest of the old firm in the work was expressed to be assigned to the new firm. The author prepared and the new firm published a second edition without any new agreement being entered into. Afterwards, a partner in the new firm (the only remaining member of the old firm) became bankrupt, and his assignees, with the solvent partner, sold and assigned to other law publishers all the interest of the firm in the work and all the unsold copies :- Held, that the purchasers had no share in the copyright of the work, and were not entitled to an injunction to restrain the publication of a third edition by another publisher with the author's concurrence, the agreement being held to be of a personal nature on both sides, and the benefit of it not assignable by either party without the other's consent.

Vol. VI.

Q

D. M.G.

1855.

STEVENS

v.

BENNING.

of the publication on themselves. 3rdly. That the said Robert Saunders and William Benning should, out of the produce of the sale of the said book, in the first instance, be refunded all the costs and expenses which they should have incurred respecting the said book, after which the profits should be equally divided between the said William Forsyth and the said Robert Saunders and William Benning. 4thly. That the accounts should be made up at the end of every year, and the profits, if any, be then divided. 5thly. That the said Robert Saunders and William Benning should account for all the copies which they should sell of the said book at the wholesale booksellers' price, deducting therefrom a commission of 77. 10s., they taking the risk of all credit which they should give on the same. 6thly. That all alterations and corrections in the proof sheets, and revises, which should exceed the charge of eight shillings per sheet, should be borne and paid by the said William Forsyth, and should be deducted out of his share of the profits. 7thly. That in case all the copies of the said books should have been sold off, and a second or any subsequent edition of the said book be required by the public, the said William Forsyth should make all necessary alterations and additions thereto, and the said Robert Saunders and William Benning should print and publish the said second and every subsequent edition of the said book on the above conditions. 8thly. That in case all the copies of any edition of the said work should not be sold off within five years after the time of publication the said Robert Saunders and William Benning should be at full liberty to dispose of the remaining copies so unsold either by public auction or private sale, or in such manner as they might deem most advisable, so that the account might be finally settled and closed.

In 1841 the first edition of the work was published.

Afterwards,

Afterwards, the partnership between Robert Saunders and William Benning was dissolved by the retirement of the former, and a new partnership was formed between William Benning and John Kirton Gilliat under the firm of “William Benning & Co.," whereupon the interest of the former firm in the work in question (among others) was expressed to be transferred to and vested in the new firm.

In 1849 Mr. Forsyth prepared a second edition of the work, which was printed and published by the firm of William Benning & Co. without any fresh agreement having been entered into.

In 1851 the partnership of William Benning & Co. was dissolved by the bankruptcy of William Benning.

By an indenture dated the 17th July 1852 Mr. Gilliat, in consideration of 6,500l., assigned to the Plaintiffs Messrs. Stevens and Norton, law publishers, all Mr. Gilliat's interest in the copyright or shares of copyright of the works specified in a schedule to the deed (which comprised Mr. Forsyth's work) with the MSS. and unsold copies of the several works then in the possession of Mr. Gilliat, and all things pertaining to the copyright and shares of copyright of which the late firm of William Benning & Co. were possessed of or interested in and over which Mr. Gilliat had any power of disposition, but so far only as Mr. Gilliat could lawfully grant the

same.

On the 16th of August 1854, a further deed of assignment was executed by Mr. Gilliat and the assignees of Mr. Benning, whereby they assigned to the Plaintiffs all the copyright, parts or shares of copyright, agreements and other rights and privileges in any publications, and

1855.

STEVENS

V.

BENNING.

1855.

STEVENS

v.

BENNING.

all agreements with any authors, editors or proprietors of books and publications of or to which the late firm of William Benning & Co. were at the time of the bankruptcy of Mr. Benning possessed, entitled or in any manner interested.

Pursuant to these deeds all the stock in trade of the firm of William Benning & Co. was delivered to the Plaintiffs, including the unsold copies of the second edition of "Forsyth on Composition with Creditors," of which the Plaintiffs had still 400 on hand.

In 1854 the Defendant William Granger Benning, a son of Mr. William Benning, published a third edition of the work edited by Mr. Forsyth, whereupon the present suit was instituted, and the motion for an injunction made, from the refusal of which the present appeal was brought. The case is reported below in the first volume of Messrs. Kay and Johnson's Reports (a).

Mr. Rolt, Mr. J. T. Humphrey and Mr. Cairns, for the Appellants.

First, the agreement in this case is in substance an assignment of the copyright. By it one who has an exclusive right to print a work gives to others the right of printing and reprinting it. That is an assignment of a copyright. It is not necessary that the word " copyright" should be used, and in fact that term is not employed at all in the Act 8 Anne, c. 19, which first created the right. The words of the statute are the "sole liberty of printing."

Secondly. If the Court should not think that the copyright was assigned, then the agreement was one for a partnership,

(a) Page 168.

partnership, which determined on the bankruptcy of one of the partners. His assignees and one of the solvent partners assigned their interest in the partnership property, as upon a dissolution they had a right to do. The remaining partner could not be permitted to appropriate to himself or destroy the partnership property. [The LORD JUSTICE KNIGHT BRUCE. But the bill does not ask for the appointment of a receiver, nor does the notice of motion state that application will be made for one.] That might have been the correct course if the sales of the new edition had been a proper exercise of the powers of one of the partners in the late partnership. But it was altogether an improper proceeding.

Lastly, we submit that, even if neither of these views could be supported, and the contract ought to be regarded as the Vice-Chancellor has considered it, in the light of one of agency, still the agents here had contracted to take all the risk of loss upon themselves, and the principal could not after entering into such an agreement bring out an edition in competition with that which was the subject of such an agreement. If he could, the booksellers might have incurred all the expense, and within a week lose all the benefit. [The LORD JUSTICE KNIGHT BRUCE. Would you permit one of your servants to assign his place?] If he had paid me for it I could not give his profits to another. But the cases we submit are not at all analogous. [The LORD JUSTICE KNIGHT BRUCE. Suppose the agreement had been assigned to a music publisher?] That might have afforded possibly an equity, but in this case the purchasers of the benefit of the agreement are as competent to execute their part as the original publishers were, when it was entered into, and no complaint is or could be made of them. [The LORD JUSTICE TURNER. What remedy would Mr. Forsyth have against Messrs.

Stevens

1855.

STEVENS

v.

BENNING.