1855. STEVENS v. BENNING. Stevens and Norton if they would not publish a new edition according to the agreement?] Such a refusal might also possibly give an equity, but no such case has arisen. They referred to Millar v. Taylor (a); Power v. Walker (b); Power v. Walker (c); Donaldson v. Beckett (d); Morris v. Colman (e); Rundell v. Murray (f); Sweet v. Cator (g); Lumley v. Wagner (h). Their Lordships took time to consider whether they would call upon Mr. W. M. James, Mr. Piggott and Mr. Hindmarch, who appeared for the Respondents. 1855. Jan. 12. The LORD JUSTICE KNIGht Bruce. This application was one by way of appeal from the refusal of a motion made by the Plaintiffs before the Vice-Chancellor Wood for an injunction. It was an injunction alone, not a receiver, that he and ourselves were asked to grant. Indeed, a receiver is not prayed by the bill, and the motions were interlocutory merely. In acceding as I do to the propriety of the course taken by the Vice-Chancellor, I consider it as perfectly consistent with the notion that the Plaintiffs may have some ground of claim under the agreement of December 1840, on which their bill is founded;-may be entitled to have an account or to maintain an action or actions against one or both of the Defendants. The only question, I repeat, with which we are dealing is one of granting or not granting (a) 4 Burr. 2303. (c) 3 Mau. & S. 7. (d) 2 Bro. P. C. 129. (e) 18 Ves. 437. (f) Jacob, 311. (g) 11 Sim. 572. an (h) 1 De G., Mac. & G. 604. an interlocutory injunction; and for that purpose it must be observed that such interest, if any, in the copyright of Mr. Forsyth's work on "Composition with Creditors," as the other parties to the agreement acquired under it, they acquired, I apprehend, not exclusively of Mr. Forsyth, but by way of joint adventure with him or of partnership with him, in respect and for the objects of which he undertook the fulfilment, by himself personally, of certain duties to them, and they undertook the fulfilment by themselves personally of certain duties to him; nor, on either side, without the consent of the other, could there be a vicarious performance, a performance by deputy or by assignee, of the duties thus undertaken. At least, so I understand the instrument and the matter; nor do I see that the duties were on either side of such a nature as that their performance specifically could have been enforced by a Court of equity. My impression, therefore, is, that, had Messrs. Saunders and Benning, parties to the agreement of 1840, retained their original position and rights under it, they could not successfully have asked an injunction against Mr. Forsyth, such as that prayed by the bill before us. If this opinion is correct, the present Plaintiffs clearly cannot do so, but if incorrect, it does not of necessity follow that such an injunction ought to be granted to them. For in them, however trustworthy, Mr. Forsyth has not agreed or intended to place confidence:--with them, however respectable, he has not consented to associate himself. In the way of specific performance, there must be at least as much difficulty between him and them as between him and the other parties to the agreement of 1840. I do not assert that the Plaintiffs have not, or that they have, been wronged. If wronged, they may proceed for damages 1855. STEVENS v. BENNING. 1855. STEVENS v. BENNING damages or compensation, or an account, but any such injunction as that now sought seems to me plainly impossible. The appeal, not supported in my judgment by Morris v. Colman (a), or Lumley v. Wagner (b), (cases which I do not question) appears to me opposed by a great body of binding authority, as well as by principle, and one of course to be dismissed with costs. The LORD JUSTICE TURNER. The question in this case arises upon a motion for an injunction to restrain the publication of a book. The Plaintiffs' case was rested wholly on the agreement of the 4th of December 1840. [His Lordship read it.] Three points were raised in argument. First, that the agreement amounted to a valid assignment of the copyright of the work. Secondly, that if it did not amount to an assignment, it constituted a partnership between Mr. Forsyth and Messrs. Saunders and Benning in the copyright, and that the Plaintiffs are the assigns of the interest of Messrs. Saunders and Benning. Thirdly, it was said, that if it were neither an assignment nor a partnership, still there was a personal equity against Mr. Forsyth which would operate against the other Defendant claiming under him, to protect the unsold copies of the second edition of the book in question. It is clear, on looking at the agreement, that it does. not amount to an assignment of the copyright. All its provisions have reference to the printing and publishing the work, and to the mode of paying the expenses to be incurred. Clauses 1 and 2 of the agreement provide that Mr. Forsyth shall prepare the book for the press, and correct the proof sheets, and that Messrs. Saunders and Benning shall direct the printing and publishing, and bear all the charges and expenses. The end of the (a) 18 Ves. 437. second (b) 1 De G., Mac. & G. 604. second clause, and the four succeeding clauses, relate to the expenses and the mode of sale. The seventh clause relates to the conditions upon which a second and subsequent editions of the work are to be published, and these conditions refer back again to the mode of printing and publishing, and the mode in which the expenses are to be paid. The eighth clause provides for the closing of the account in a particular event. That clause shows that the agreement was not intended to operate as an assignment of the copyright, as it merely contains a provision for closing the account between them in respect. of the interest in the copies of the work, and making no reference to the copyright. I think, therefore, that the agreement is not an assignment of the copyright. Next, if there was a partnership, then if the agreement does not affect the copyright, the partnership was not in the copyright, but in the copies printed under the licence contained in the agreement. In that case the Court has nothing to do with the question of partnership, except as regards the unsold copies. It was, however, said that there was a personal equity against Mr. Forsyth operating in this mode; that Mr. Forsyth could not, as between him and Messrs. Saunders and Benning, have permitted a third edition of the work to be issued whilst copies of the second remained unsold under the agreement. How the case would have stood if Messrs. Saunders and Benning had remained in a position to perform their part of the agreement, I need not give any opinion, but if there was a personal equity on one side, there must also be one on the other. If Messrs. Saunders and Benning are not in a situation to perform their personal part of the contract, neither in my view of the case could they in equity enforce as against Mr. Forsyth any contract which he had entered into with them, 1855. STEVENS v. BENNING. 1855. STEVENS v. BENNING. them, and I think that the Plaintiffs, who are the assigns of Messrs. Saunders and Benning, can be in no better position than Messrs. Saunders and Benning. It is quite clear that the view taken by the Vice-Chancellor is the correct view of the case, and that the appeal motion must be dismissed with costs. The costs of the proceedings before the Vice-Chancellor will be costs in the cause. 1854. Dec. 12, 13, 21. Before The LORDS JUS TICES. THIS HART v. CLARKE. HIS was an appeal of the Plaintiff from a decree of the Master of the Rolls, declaring that a joint advenAn adventurer ture between the Plaintiff and Defendants, called "The Goldscope Mining Company," was concluded, so far as the Plaintiff was concerned, on the 31st of May 1850, in a Mining Company, the rules of which did not contain any provision for the forfei ture of shares on non-pay and directing an account to be taken of what was due to and from the Plaintiff on that day for the value of his interest in the monies, machinery, stock, mines and proment of calls, perty of the adventure; and if it should appear that any balance was due to the Plaintiff, then that an account should be taken of the subsequent profits (if any) of the of the mines, adventure, and declaring that in such case the Plaintiff received notice from his coadventurers and co-lessees that unless his arrears of calls were paid up, was his shares would be forfeited on a specified day. He replied by denying the right to forfeit his shares. A resolution extending the time for payment was then communicated to him, to which he replied by denying the right to deprive him of his share in the lease. Some months after the extended time had expired, he received from the co-adventurers another application for payment of his arrears, of which he took no notice until more than six months had elapsed, when he claimed to be still a partner. Two years afterwards he filed a bill for an account:-Held, that he was entitled to be still considered a partner. Although mining partnerships differ in many respects from others, and it would be often unjust to allow a partner to participate in the success of such a speculation who had omitted to contribute to it while doubtful, it would be scarcely less unjust to allow, in all cases, the partners who have paid, as against one who has not, to take the law into their own hands and appropriate to themselves the whole profits. Every such case depends on its own circumstances, and particularly on the question whether there has been a purpose of abandonment on the part of the partner in default. |