Page images
PDF
EPUB
[merged small][ocr errors][merged small][merged small][merged small]

several parties covenanted with each other, that they would be, and continue joint proprietors of the periodical called "Household Words," and that Charles Dickens should have half the profits, Messrs. Bradbury and Evans one-fourth, and Forster and Wills the remaining fourth. And it was agreed, that they should be proprietors of the weekly periodical so to be established, called "Household Words," subject to the stipulations thereinafter contained, and should be interested *therein and in the gains and profits thereof, and should bear and pay all losses and expenses in relation thereto in the proportions following, namely, the said Charles Dickens one half part or share thereof, the said William Bradbury and Frederick Mullett Evans one fourth part or share thereof, and that Charles Dickens should be and was thereby appointed editor of the said periodical, and as such should exercise absolute control over the literary department thereof, and over all the agreements, rates of payment, and orders for payment, made on account of the said partners in respect of the said literary department, and should be entitled, so long as he should continue such editor, to receive the sum of 500l. per annum as a remuneration for his services as such editor, and for any literary articles he might contribute. Messrs. Bradbury and Evans were to be the printers and publishers, and also the general managers and manager of the publication, so long as they respectively should remain personally interested therein; Forster was to contribute literary articles and Wills to act as sub-editor, and neither of the parties was to sell, assign, or transfer his share or interest in the said publication, or any part thereof, without first tendering or offering the same to his co-proprietors. In case of the decease of either of the parties, or of any other proprietor of shares in the publication, during the continuance thereof, his executors or administrators were to receive the same proportion of profits as the deceased, but should not interfere in the management or direction of the publication. And that on the expiration of the said publication, either by agreement or otherwise, all the stock, chattels and property of the said joint undertaking, except debts owing to the same, should (unless the parties should agree as to the value thereof or as to some other appropriation of the same) be sold *by public auction to the highest bidder or bidders, with liberty for any or either of the parties thereto to bid for the same, and the produce be divided amongst the proprietors. This weekly periodical had accordingly been established, and had ever since been carried on and published under the title of Household Words,' a weekly journal, conducted by Mr. Charles Dickens."

666

66

[ocr errors]

DICKENS.

In consequence of misunderstandings, Charles Dickens, on the BRADBURY 22nd day of December, 1858, sent a written notice to the plaintiffs and Wills, that upon the completion of the nineteenth volume of Household Words," which would take place in the month of May, 1859, the partnership should be dissolved, and that he should immediately afterwards take such steps as he might be advised for the winding-up of the affairs of the said partnership.

The defendant, Charles Dickens, also prepared and caused to be printed, published and circulated amongst the trade, the following notice or advertisement:

"The story of our lives from year to year.'--Shakspeare.

"On Saturday, the 30th April, 1859, will be published, price twopence, the first number of All the Year Round,' a weekly journal designed for the instruction and entertainment of all classes of readers, and to assist in the discussion of the social questions of the day. Conducted by Charles Dickens. "ADDRESS. Nine years of Household Words' are the best practical assurance that can be offered to the public of the spirit and object of All the Year Round.' In transferring myself and my strongest energies from the publication that is about to be discontinued to the publication that is about to be begun, I have the happiness of taking with me the staff of writers with whom I have laboured, and all the literary business and co-operation that can make my work a pleasure," &c. &c. It concluded thus: "The task of my new journal is set, and I will steadily try to work the task out. Its pages shall show to what good purpose their motto is remembered in them, and with how much of fidelity and earnestness they tell- The story of our lives from year to year.' CHARLES DICKENS."

"On Saturday, 28th May, 1859, Mr. Charles Dickens will cease to conduct Household Words,' that periodical will be discontinued, and its partnership of proprietors dissolved."

Messrs. Bradbury and Evans instituted this suit against Mr. Charles Dickens and Mr. Wills, praying: (1) That the partnership might be dissolved and wound up; (2) that Charles Dickens might be restrained, by injunction, from advertising or publishing the above notice or advertisement, or any other notice or advertisement, announcing the discontinuing the periodical called "Household Words," or the substitution of any periodical in the place thereof or in succession thereto, or continuing any announcement to the same or a similar effect; (3) That the copyright of the "Household Words" might be forthwith sold as a going concern.

A motion was now made for an injunction.

Mr. R. Palmer and Mr. Jessel for the plaintiffs [contended

[561

[57]

BRADBURY

t.

DICKENS.

[58]

[59]

[60]

[ *61]

that the defendant had been guilty of a plain breach of duty prejudicing his co-partners, and he ought to be restrained, by injunction, from damaging the publication and destroying the connexion. They referred to Marshall v. Watson (1)].

THE MASTER OF THE ROLLS:

I do not think that any case is made to restrain the defendant from saying that he is about to publish another work in continuation of "Household Words." The only question is, whether he is entitled to say simply, "that the periodical will be discontinued," or whether he must not add some qualified words after the word "discontinued." My present impression is, that the partners have a right to have the name sold. I express no opinion whether it will be worth anything, when it is known that the former editor and contributors have left it and intend to set up a similar publication. But that this must seriously injure its value, everybody can plainly see.

Mr. Selwyn and Mr. Hobhouse for Mr. Dickens:

[The essence of the work is the editorship of it by Mr. Dickens, and when he retires it will and must cease, and the public should know that if any periodical is published subsequently to May, 1859, under the name of "Household Words," it is not the same publication which has hitherto borne that The advertisement is strictly true, and the defendant has

name.

a right to publish it].

Mr. R. Palmer, in reply, argued [that Mr. Dickens had no right, against the will of his partners, to advertise that the periodical would be discontinued].

THE MASTER OF THE ROLLS:

The property in a literary periodical like this is confined purely to the mere title, and the title of this work is "Household Words," and that forms part of the partnership assets, and must be sold for the benefit of the partners, if it be of any value. I think that the insertion of the words "by me," or "by the editor," after the word "discontinued," in the address to the public, would make it free from all cavil. Mr. Palmer presses upon me very strongly, that Mr. Dickens has no power to put an end to the work, but I am not clear that he has not. His mere retirement may de facto annihilate *it, for its existence and value may entirely and solely depend on his name being associated with it; so that the name of "Household Words" may be utterly worthless, as soon as it becomes generally

(1) 119 R. R. 509 (25 Beav. 501).

known that he has nothing more to do with it. That, however, BRADBURY is a matter which can only be determined by the result.

I am, however, satisfied, that the statement that he has nothing more to do with it, is properly represented by his saying that "it will be discontinued by me," which does not import that it is to be discontinued absolutely and positively; it merely asserts that, as far as he has anything to do with it, it is to be discontinued, and I think that this is all the plaintiffs are entitled to require. Accordingly, upon Mr. Dickens undertaking, in the future advertisements he publishes, to insert the words "by him," or equivalent words, after the word "discontinue," I will make no order at all upon this motion, but reserve the costs of it, until I see what the result is, when the partnership property comes to be disposed of.

On the 28th of April, 1859, a decrce was made, whereby it was ordered, that the right to use, from and after the 28th of May next, the name of the periodical called "Household Words," and the right from and after the said 28th May, to publish, under the said name or title, any periodical or other work, whether in continuance of the said periodical called "Household Words," or otherwise, as the purchaser should think fit, be sold, subject to such conditions as the Judge should direct.

NOTE. The right was accordingly sold by auction on the 16th May, 1859, and produced 3,550l. The publication of "Household Words " thereupon ceased.

HUNT v. ELMES.

(27 Beav. 62—65 ; S. C. 28 L. J. Ch. 680; 5 Jur. N. S. 645; 7 W. R. 471.)

A., the owner of an estate, first mortgaged it to B., and afterwards sold and conveyed it to C., to whom he delivered the title-deeds. In a suit by B. against C., insisting on his priority, C., by his answer, professed to state the contents of the deed of conveyance to A. He admitted the possession of this and the other title-deeds, but insisted that he was a purchaser for valuable consideration without notice; and he said, that B. had no right or title to the production of the deeds, or any interest therein Held, that B. was entitled to the production of the conveyance to A. in order to verify the statements in the answer, but that the other title-deeds were privileged. ACCORDING to the allegations of the bill and the statements in the answer, it appeared that David Hughes, a solicitor, purchased a piece of land at Maryland Point in Essex, with five unfinished houses thereon, which were conveyed to him by an indenture of the 30th of May, 1854. On the 30th of April, 1855, David Hughes mortgaged this with other property, for a term, to the plaintiff, his client, for 1,000l. About the same time Hughes delivered to the plaintiff a bundle of fourteen

[ocr errors]

DICKENS.

1859.

May 7, 11.

Rolls Court.
ROMILLY,
M.R.

[ 62 ]

[merged small][ocr errors][merged small][merged small][merged small]

deeds in an envelope indorsed as the title-deeds of this and the other mortgaged property.

In July, 1858, David Hughes absconded and went to Australia. The plaintiff afterwards discovered, that in September, 1855, Hughes had sold the property in question to the defendant for 6751., and that he had conveyed it to him on the 18th of October, 1855. Hughes, at the same time, handed over to the defendant the title-deeds relating to the property, which he had fraudulently retained, instead of including them in the bundle of deeds delivered over to the plaintiff in April, 1855. The defendant, who had no notice of the plaintiff's mortgage at the time he purchased, had since taken possession, and had laid out 1,300l. in finishing the five houses.

The plaintiff by his bill insisted, that his mortgage *had priority over the defendant's purchase, and the bill prayed, that the defendant might either pay the amount due on the mortgage or stand foreclosed. The defendant by his answer stated, that by an indenture, dated the 30th of May, 1854, a piece of freehold land at Maryland Point, &c. "with five unfinished houses then in course of erection thereon, were, in consideration of 7001. therein expressed to be paid by David Hughes, conveyed to David Hughes for an estate in fee simple, and that the said land and houses were more particularly described in the last-mentioned indenture."

The defendant admitted that he had in his possession the title-deeds of the property, and the abstract of title, &c., but he said, "they are the title-deeds and muniments of title relating to the fee simple and inheritance of the said land and houses at Maryland Point." He said, "I am advised and verily believe. that the plaintiff has not any right or title to the production of or any interest in the documents," and he objected to produce them. The defendant insisted that he was a purchaser for valuable consideration without notice of the plaintiff's alleged mortgage security.

The plaintiff applied by summons for the production of all the documents admitted by the defendant to be in his possession, and the matter was adjourned into Court.

Mr. Swanston, jun., for the plaintiff, argued, that the defendant was bound to produce all the documents. He cited and commented on Combe v. The Corporation of London (1), Smith v. The Duke of Beaufort (2), *Swinborne v. Nelson (3), Clegg v. Edmonson (4), M'Intosh v. The Great Western Railway Company (5).

(1) 57 R. R. 482 (1 Y. & C. C. C.
631).
(2) 58 R. R. 160 (1 Ph. 209).

(3) 96 R. R. 20 (16 Beav. 416).
(4) 111 R. R. 291 (22 Beav. 125).
(5) 84 R. R. 11 (1 Mac. & G. 73).

« EelmineJätka »