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No. 271.

MARCH 19, 1842.

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**The following are the Names of the Gentlemen who favour THE JURIST with Reports of Cases argued and decided in the several Courts of Law and Equity:

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THE COPYRIGHT BILL.

We have often had occasion to comment on the singular looseness with which Bills in Parliament are drawn; but the Bill now before us seems really as if it were intended to shew how entirely reckless of all accuracy, the framer of a Bill may be, without losing parliamentary caste.

With the principle of the Bill, we have nothing to do; we neither applaud nor disapprove it. For though we may have an opinion, whether it is just and expedient, on principle, to extend the term of enjoyment of copyright, yet we conceive it to be so very problematical, whether practically any substantial change will be effected in the interests of authors or the public by the proposed change of the law, that we hold it a matter of very slight importance whether the law is changed or not. But, as members of the community bound by the laws, and still more as lawyers called upon to explain them, we have a wish, and we submit that it is not an unreasonable one, to see laws passed in such a shape, that their objects and effects may be at least intelligible, if they are not absolutely certain. Let us see how far the Bill which is now before the Legislature, for altering the Law of Copyright, fulfils these conditions. The first material clause (sect. 3) is sufficiently plain. In the case of any book published after the passing of the Act, during the lifetime of the author, it gives the copyright to the author and his assigns, for the life of the author, and twenty-five years afterwards; and if the book be published after the death of the author, then to the proprietor of the manuscript for thirty years from the first publication thereof. Thus much as to books published after the Act. The next section deals with books published before the passing of the Act; and of that also the meaning is to be collected with tolerable certainty, although it is expressed in sin

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gularly circuitous language. As we understand it, it will have this effect: that, where an author has in himself the copyright of his work at the time of the passing of the Act, there, he will, under the Act, have his term extended to the same term as if the Act had been in force when he published his work. But if the copyright was, at the passing of the Act, vested in any person as a purchaser, (the words of the clause are," in all cases in which such copyright shall belong, in whole or in part, to a publisher or other person, who shall have acquired it for other consideration than that of natural love and affection"), then the copyright is to endure only so long as it would have endured under the old law, unless the author, or his personal representative, and the proprietor of the copyright, agree to accept the benefit of the Act, which they may do by registering a minute of such consent under subsequent clauses of the Act.

We now come to the 4th clause, intended it seems to meet the objection taken last year to Mr. Serjeant Talfourd's Bill, that, if copyright were greatly prolonged after the death of an author, valuable works might be withdrawn from the public store of information by the scruples of the descendants of such author. This clause therefore, enacts," that it shall be lawful for the Judicial Committee of her Majesty's Privy Council, on complaint made to them, that the proprietor of the copyright in any book, after the death of its author, has refused to republish or to allow the republication of the same, and that by reason of such refusal such book may be withheld from the public, to grant a license to such complainant to publish such book, in such manner and subject to such conditions as they may think fit; and that it shall be lawful for such complainant to publish such book according to such license."

Now, much as it has been the fashion of late, in law bills, to cut the Gordian knot in all cases of difficulty, by giving a sort of discretionary jurisdiction to the Privy Council, we do not remember: any bill in which it has

proof of payment to the parties employed by him, to be primâ facie evidence of his property in their articles proviso, securing the right of authors who have reserved the right of publishing their articles in a separate form." Now, what says the clause itself? "Be it enacted, that, when any publisher or other person shall, before or at the time of the passing of this Act, have projected, conducted, and carried on, or shall hereafter project, conduct, and carry on, any encyclopædia, review, magazine, periodical work, or work published in a series of books or parts, or any book whatsoever; and shall have employed or shall employ any persons to compose the same, or any volumes, parts, essays, articles, or portions thereof, for publication in or as part of the same, and such work, volumes, parts, essays, articles, or portions, shall have been or shall hereafter be composed under such employment, on the terms, that the copyright therein shall belong to such projector, publisher or conductor, and paid for by such projector, publisher or conductor, the copyright in every such encyclopædia, review, magazine, periodical work, and work published

been thought expedient to vest in any tribunal so wide and vaguely defined an authority. Observe what the duty prescribed to the Judicial Committee is; it shall be lawful for them, "on complaint;" not on complaint supported by affidavits, or other proof, but simply on complaint;-And of what kind of wrong is the complaint to be? Not that the proprietor of the copyright has perversely, and for a lengthened period, refused to permit the republication of his work; not that, it being shewn that he might prudently and advantageously as regarded his own pecuniary interests have republished, he has without any sufficient reason refused to do so, and that, by such continued refusal the public are deprived of the book, and are de facto damnified; but simply, "that he has refused; and that by reason of such refusal such book may be withheld from the public." So that on any one making a complaint, that the proprietor of a copyright has refused to republish, with or without a particle of evidence as to the causes and extent of such refusal, without any inquiry whether it was founded on the proprietor's just calculations of the commercial inexpediency of then republishing, or whe-in a series of books or parts, and in every volume, part, ther it was a long continued and perverse refusal; provided the allegation is, that the unfortunate proprietor has refused simpliciter, and further, that by reason of such refusal the book may be withheld from the public, the Judicial Committee will have authority to grant a license to the complainant to publish the book.

essay, article and portion so composed and paid for, and such projector, publisher or conductor shall have all the remedies by this Act provided for the proprietors of copyright, shall be the property of such projector, publisher or other conductor, who shall enjoy the same rights as if he were the actual author thereof, and shall have such term of copyright therein as is given to the authors of books by this act*: Provided always, that nothing herein contained shall alter or affect the right of any person who shall have been or who shall be so employed as aforesaid, to publish any such his composition in a separate form, who, by any contract, express or implied, may have reserved or may hereafter reserve to himself such right; but every author reserving, retaining or having such right, shall be entitled to the copyright in such composition when published in a separate form, according to this Act, without prejudice to the right of such projector, publisher or conductor as aforesaid."

The clause, therefore, in the introductory part, makes the copyright of the projector or conductor of the En

Now, we know very well, that the Judicial Committee would not be likely, in practice, to assume the jurisdiction which, if we are right in the construction of this clause, would be conferred upon it. We know, that it would probably not receive a petition under the Act, without allegations much more material and pertinent to the matter of the injury anticipated to the public, than those which seem alone prescribed by the Bill; and we admit, that it would probably lay down such rules and regulations for governing applications of this nature, as should restrict its own jurisdiction in practice to the case of a specific injury to the public, arising out of the unreasonable and wanton withholding of a book by the proprietor. In other words, we believe, that, the effect of the clause being to enact, that, whenever the proprietor of a copyright refuses to repub-cyclopædia, &c., depend on the union of two circumlish it, it shall be lawful for the Judicial Committee to inquire into the matter, and do as it thinks fit, the Judicial Committee would, in consistence with the principles which in modern times govern Courts of Justice, limit the circumstances, under which it would entertain applications, by a reference to the substantial matter of wrong intended to be provided against. But, we submit that, first, it is not usual, in modern times, to arm any Court with such absolute and totally discretionary powers; and secondly, that, if it be the intention of Clause 4 of this Bill so to arm the Judicial Committee,pyright in them. But then follows the concluding proit would be better that it should do so in terms. But if, as we believe, the framers of the Clause had no such intention, then we submit, with great deference, that it will become necessary to re-draw it from beginning to end.

stances: first, his having employed any persons to compose it; and, secondly, the articles, essays, &c., having been composed on the terms that the copyright shall belong to the projector, and be paid for by him. So far, therefore, from directly vesting the copyright in the projector, or from making the payment by him for the separate articles, &c., any evidence of the copyright being in him, it seems to oust, inferentially, his claim to such copyright, unless the articles have been furnished under a specific contract, that he shall have co

viso, saving the right of an author to preserve to himself, by special contract, the right of separately publishing his contributions. We have, therefore, here, a clause, the first part of which, by inference, leaves the copyright in a contribution to a periodical work in the We will next take up the 19th clause. Of this, the * There is obviously here a misprint; the phrase, "and such marginal note is thus stated: "Copyright in encyclo-projector, publisher, or conductor shall have all the remedies pædias, periodical works, and works published in series, to be in the publisher or conductor thereof; and

by this act provided for the proprietors of copyright," should come after the concluding words, "by this act."

OUR readers will perceive by the Parliamentary Sum

writer, unless, by contract, he has deprived himself of it; while the latter part, by inference, takes the copy-mary, that Lord F. Egerton's Bill, for altering the Law right out of the writer, unless he shall, by specific contract, have reserved it to himself. We do not envy the Judge who shall be called upon to construe, judicially, this clause.

of Marriage, is thrown out. For the present, therefore, Lord Lyndhurst's Act, (5 & 6 Will. 4, c. 54), remains the law as regards marriages within the prohibited degrees. We have not offered in this journal, nor do we We have passed over the whole of the registry clauses, mean to offer, any opinion on the question, either of which require no particular commentary of this char- the morality or expediency of the proposed change; acter; and we come next, and lastly, to the 28th. but we wish to point out an error which has very much This has in view, as it would seem, the giving and re- pervaded the whole debate, with respect to the effect of gulating of powers to proceed, by way of injunction, to the 5 & 6 Will. 4. It seems to have been assumed by restrain the piracy of works. We would first observe, many honorable, but not learned members, that the rethat there is an obvious oblivion, in the commencement striction on marriages between persons within certain of the clause, (which gives powers to the Lord Chan- degrees of affinity took its rise from the date of that cellor and the Vice-Chancellor), of the fact, that, under Act only; and that, moreover, that Act was specially and by virtue, and in consequence of a certain act, made directed against marriages between a widower and the and passed, &c., in the last session of the late Parlia- deceased wife's sister, or a widow and the deceased husment, there is now no such person as the Vice-Chancel- band's brother.-Whereas, in fact, certain marriages, and lor, but that there are three Vice-Chancellors. This is, among others those alluded to, were forbidden, though however, a mere trifle, and no otherwise deserving of not void if contracted, by the Statute Law, (see the 25 notice, than as part and parcel of the general inaccuracy Hen. 8, c. 22; 28 Hen. 8, c. 7; and 32 Hen. 8, c. 38), as which pervades the bill. In substance the clause appears well as by the Canon Law. The Act of 5 & 6 Will. 4 intended to give to the Courts of Equity in England and did not profess to prohibit anything de novo, but merely Ireland, upon application by petition in a summary way, to settle the law, and to give force to antecedent proand to the Courts of Common Law in England and Ire-hibitions. It had merely in view, (we speak of course, land, and certain other Courts, on application by motion in a summary way, supported by affidavit, &c., to make such orders for the issuing of an injunction, or for the continuing and enforcing, or dissolving such injunction, as, according to the course and practice of each of such Courts respectively, can or may now be made in a suit regularly instituted;" and also to make such order for an account, as, according to the course and practice of each such Court can or may now be made.

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We are of course bound to presume, that the framers of the Bill are aware, that, according to the course and practice of the Courts of Common Law, they do not act by way of injunction at all; and that, consequently, to enact, that they shall make such orders for the granting, continuing, or dissolving injunctions, as by their course and practice they now can or may, is to enact, that they shall do nothing. What therefore is the intention of the reference in this clause to the Courts of Common Law, we are at a loss to conceive. With regard to its effect on the practice of the Courts of Equity, it seems intended to give them power to grant injunctions, either ex parte or on notice, and the consequential account in matters of literary piracy, in a summary way, without the regular institution of a suit.

Whether this is an improvement or not we shall not now minutely inquire. We will, however, observe, that, as the chief source of expense of obtaining an injunction does not depend in general on the circumstance of a suit being instituted by bill, but on the extent and expense of evidence, and the consequential expenses of the proceedings in Court, the total expense will probably be scarcely diminished by proceeding on petition in a summary way. And with regard to the necessity of summary protection for the owners of copyright, if the present mode of proceeding by ex parte injunction is not summary enough to satisfy the most intense craving for protection, we know not how the owners of copyright are to be satisfied.

as lawyers, of the intention to be collected from the Act itself), to make valid those marriages already contracted, which, under the then existing state of the law, were voidable, but not void; and to render in future, absolutely void, marriages within the degrees, which the law then considered as too near, in point either of consanguinity or affinity. The Act does not, in terms, refer to any specific kind of prohibited marriage, but applies to all marriages then prohibited.

PARTNERSHIP AS TO THIRD PERSONS.

It is a well-known rule of English law, that several persons may so conduct themselves with reference to a particular business or adventure, as to become mutually liable to the public for the acts of each other, as partners, although, as among themselves, none of the incidents of a partnership may exist. Contracts of partnerfar as the mutual rights of the partners are concerned; ship may be varied in an infinite variety of ways, so but when once the fact of partnership as to third persons is established, the rights and liabilities of the parties, with respect to such third persons, follow as a matter of course, and are governed by uniform and invariable rules. If the contract or dealing between the parties is such as to constitute a partnership between themselves, à fortiori it is sufficient to make them liable as partners to the world. Where the contract of partnership does not exist between the parties themselves, one of them may become liable to the world as partner, either by holding himself forth as such, and thereby inducing persons to give credit to the firm, on the assumption that each of its ostensible members is answerable; or by participating in the profits of the business, and thereby enjoying the same advantages which he would enjoy if he were actually, and by agreement with the ostensible members of the firm, a partner. The grounds upon which the liability of an ostensible partner rests are obvious enough; and this class of cases affords scarcely any matter for remark— the question in each case being simply, whether the conduct of the person sought to be charged as partner has been such as to amount to a holding of himself out

as a partner. (See Spencer v. Billing, 3 Camp. 310; Mansfield, in the case of Hoare v. Dawes, (1 Dougl. Ex parte Matthews, 3 Ves. & B. 125; Goode v. Harri- 372); "The law," said that eminent, but not always acson, 5 B. & Ald. 147; Parker v. Barker, 3 J. B. Moore, curate, judge, "with respect to dormant partners, is not 226; Fox v. Clifton, 4 M. & P. 676). If the party disputed; namely, that they are liable, when discoverhas not held himself out generally as partner, yet he ed; because they would otherwise receive usurious inwill be liable to any particular person, upon a single terest without any risk." But it is evident, that the representation to him, that he stands in that character. rule is not necessarily connected with any statutory re(De Bertrom v. Smith, 1 Esp. 29). Whether a defendant strictions upon the rate of interest for money, but is a can be charged as ostensible partner by a plaintiff, who principle of common law, which equally subsists now is proved to have been ignorant of such apparent part-that the usury laws are suspended, so far as they fetter nership, does not appear to be quite settled. Lord Mans- commercial contracts, as it did when they were in full field, in the case of Young v. Axtell, (2 Hen. Black. force. The reason first stated above from Mr. Jarman, 242), seems to have thought, that the plaintiff's ignorance is undoubtedly the true one; and has been frequently of the defendant's ostensible character would be imma- referred to from the bench, and in text books; yet it is terial; but as the defendant in that case appeared to far from being satisfactory, or free from difficulty in its have an actual interest as partner, the question did not application. It is clear, that, if a business were expectfairly arise. As the liability of a nominal partner is ed to yield 30l. per cent. of annual profit on the capital wholly founded on the circumstance that credit is given employed, and on that expectation a capitalist were on account of his supposed liability, it should seem, on to advance a large sum to the person carrying on the principle, that where it is shewn that the creditor could business, with a stipulation that he should receive 251. never have relied on such liability, it would not arise. per cent. annually upon his money, if the business And this view of the rule is sanctioned by what fell should yield so much, this would not create a partnerfrom Parke, J., in the case of Dickenson v. Valpy, (10 ship; nor would it now be impeachable upon the ground B. & Cr. 140; 5 Man. & Ry, 183), where an attempt of usury; and yet, all the mischief that could be apprewas made to fix the defendant with liability as partner hended from a dormant partnership would be just as in a mining company. The learned Judge said, "If it likely to arise in this case as in that put by Mr. Jarman could have been proved, that the defendant had held in the passage cited above. Another objection is, that himself out to be a partner, not to the world,' for that the rule goes far beyond the evil which it is intended to is a loose expression, but to the plaintiff himself, or remedy; for if the dormant partner is to be made liable under such circumstances of publicity as to satisfy a simply on the ground of the withdrawal of the fund to jury, that the plaintiff knew of and believed him to be which future creditors would otherwise resort, his liaa partner, he would be liable to the plaintiff in all bility should not exceed the amount actually received transactions in which he had engaged, and gave credit by him, instead of being, as it is, unlimited. But the to the defendant, upon the faith of his being such part- weakness of the doctrine is principally perceived, when it ner the defendant would be bound by an indirect comes to be applied to contracts for the remuneration of representation to the plaintiff arising from his conduct, clerks, agents, &c., by a salary proportioned to the proas much as if he had stated to him directly, and in ex-fits of the business. Upon the effect of such contracts, press terms, that he was a partner, and the plaintiff had acted upon that statement." And of course, if the plaintiff had notice by himself, or by his partners, before he gave credit to the firm, that the defendant had no real interest in it, that would be sufficient to prevent his succeeding in an action in which the defendant should be joined. (Alderson v. Pope, 1 Camp. 404).

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the authorities are by no means harmonious or satisfactory. Indeed, so finely have distinctions been drawn, that it has been laid down by Lord Eldon, (Ex parte Hamper, 17 Ves. 404), that, "if a man stipulates, as the reward of his labour, that he shall have, not a specific interest in the business, but a given sum of money, even in proportion to a given quantum of With regard to the second class, that of dormant the profits, that will not make him a partner; but, if partners, more difficulty exists; for the grounds upon he agrees for part of the profits, as such, giving him which persons who participate in the profits of a busi-a right to an account, though having no property in ness, are rendered liable to the engagements in that that capital, he is, as to third persons, à partner." business of the ostensible partners, are by no means How can a person be entitled to a sum proportioned settled in a satisfactory manner. "The principle," to the profits, and not have a right to an account? says a learned writer*, upon which this liability is However, nothing more sensible than this can be defounded, is, that, by sharing the profits, he takes part duced from the cases. Thus, in Dry v. Boswell, (1 of the fund to which the creditor has a right to resort Camp. 329), the owner of a lighter having agreed to for payment; in short, that, as he is to enjoy the pro- give the person who worked it one half of the gross fits of the concern if it prospers, he ought to bear its earnings for his labour, it was held, that there was no burdens if it does not; according to the well-known partnership between the two: yet, if taking a share in maxim, 'qui sentit commodum, sentire debet et onus." the net profits is an injury to prospective creditors, sureIt is true, the creditor has not trusted the firm on his ly taking a share in the gross receipts is more so. So, responsibility; but, inasmuch as the person whom he the usual mode of paying seamen in the whale fisheries has trusted, (i. e. the ostensible trader), is the less able by a share in the produce, does not make them partners. to satisfy the creditor's demand on account of his con- Wilkinson v. Frasier, 4 Esp. 182; Mair v. Glennie, 4 nexion with the person in question, it is fair that that Mau. & Sel. 240). But where A. and B., ship agents connexion should entail on the latter the responsibility at different ports, agreed to share the profits of their of partner. The consequence of a contrary doctrine commissions, and the discount on bills for repairs of would be, that a man might enjoy nine-tenths of the ships consigned to them, and sums received for wareprofits of the business for twenty years, and, in the house rent, after deducting one-fifth for warehouse rent, twenty-first year, when the ostensible trader, impove- but that each party should bear his own losses, it was rished by this exhausting absorption of his income, was held, that this, though not a partnership between the no longer able to meet his engagements, the secret part-parties, rendered them liable to the world as partners. ner would come forth from his obscurity, merely to ex- Waugh v. Carver, 2 H. Bl. 235; See Geddes v. Walhibit to the deluded creditors the channel through lace, 2 Bligh, 270; Green v. Beesley, 2 Scott, 164; Bond which the profits of the business, whose known prospe- v. Pittard, 3 Mee. & W. 357; Burnell v. Hunt, 5 rity had induced their confidence, had irrecoverably passed away." A different reason was assigned by Lord *7 Jarman's Conveyancing, p. 5.

Jur. 650).

Mr. Justice Story, in his recent and scientific work on Partnership, has taken great pains to illustrate

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