Where part of the assets of a partnership consisted of a government contract entered into in the name of one of the partners and containing a proviso against alienation:

Held, that upon a dissolution of the partnership, the partner in whose name the contract was taken, and who continued to carry it on, must be debited in the accounts with its value, to be ascertained by a reference to Chambers.

THIS was a suit instituted by the legal personal representatives of Benjamin Ambler, deceased, for the purpose of taking the accounts of a partnership which had subsisted between him and the defendant, Thomas John Bolton, as carriers of Her Majesty's mails in London. Several questions were discussed at the hearing, but the present report is confined to the mode in which the Court dealt with a government contract entered into by the defendant in his own name, but, as the Court held, on behalf of the partnership.

The contract in question bore date the 28th of February, 1868. and was made between the Duke of Montrose, the then postmaster-general, of the one part, and the defendant of the other part; and it was thereby agreed that the defendant, his executors, administrators, or assigns would, on and after the 1st day of April then next ensuing, and thenceforth until the said contract should be determined in the manner therein provided, convey or carry or cause to be conveyed or carried (subject as therein mentioned) Her Majesty's mails in or near London, as therein set forth, at the rates of payment thereby fixed. And it was thereby agreed that the contract should remain and continue in force on or from the 1st day of April then next ensuing until and including the 31st day of March, 1871, and should then determine, provided either of the said parties thereto, hist executors or administrators or successors or assigns, should have given to the other of them, his executors or administrators or successors or assigns, twelve calendar months' previous notice 428] in writing of his or their desire to that effect. And it case no such notice should have been given, then the contra should continue in force until one of the said contracting parti his executors or administrators or successors or assigus, shoul give to the other of them, his executors or administrators, or suecessors or assigns, twelve calendar months' previous notice in writing, dated from the 1st day of April in some one year and terminating on the 31st day of March in the then next year, of his or their desire that the contract should determine. And it was thereby

M.R.

Ambler v. Bolton.

1872

provided that it should not be lawful for the defendant, his executors or administrators, at any time or times during the continuance of the contract to give, grant, bargain, sell, assign, underlet, or otherwise part with or dispose of the contract or undertaking, or the benefit or advantage thereof, or any part thereof, or of the several covenants, matters, and things therein. contained, or any of them, to any person or persons whomsoever, anything therein contained to the contrary thereof notwithstanding. And that in case the defendant, his executors or administrators, should make breach of or default in any of the covenants or agreements therein contained and on the part and behalf of him or them to be observed and performed, then and in any such case it should be lawful for the Postmaster-General for the time being, by writing, absolutely to revoke, determine, and make void the contract.

The terms of the partnership were not expressed in writing. It appeared that originally the partners were interested in equal shares; but that an arrangement was afterwards made under which Benjamin Ambler became, as from the 1st of April, 1868, entitled to three-eighths of the partnership assets, and the defendant to the remaining five-eighths. Benjamin Ambler died in March, 1870. After his death, and down to the present time, the defendant continued to carry the mails under the contract, and had derived considerable profits therefrom.

The bill prayed that, as to any portion of the partnership assets and property which might not be in its nature saleable, the defendant might, as regards the share of Benjamin Ambler, therein be declared a trustee thereof for the benefit of his estate.

The defendant alleged that his partnership with Benjamin Ambler was confined to the working of the contract, and that the contract itself was not a partnership asset; but the Court was of a *contrary opinion. The defendant further claimed the [429 exclusive benefit of the contract and all profits arising therefrom subsequently to the death of Benjamin Ambler, on the ground that the contract could not be assigned to any person, and therefore could not be sold.

Mr. Southgate, Q.C., and Mr. Ince, for the plaintiffs:

The defendant cannot claim the exclusive benefit of the contract without paying for it in some shape or other. Either we are entitled to participate in the profits so long as the contract lasts, or a value must be set on it and paid by the defendant, as was done in Smith v. Mules (1). That the Court will not be prevented from doing justice by reason of a contract being unassignable is shown by the case of James v. Ellis, before ViceChancellor Stuart on the 20th of December, 1870, where the (1) 9 Hare, 556.

1872

Ambler v. Bolton.

M.R.

mortgagor of a pension from the East India Company was ordered by the decree foreclosing the mortgage to execute an irrevocable power of attorney enabling the mortgagee to receive the same.

Mr. Fry, Q.C., and Mr. Daniel Jones, for the defendant:

The relief sought by the bill cannot be given. Why should the defendant be deprived of the right of putting an end to the contract when he pleases? Then it is now sought to charge the defendant with the value, and the case of Smith v. Mules is cited in support of that view. There the partnership was between three solicitors, aud the articles of partnership contained an express covenant by one of the partners that he would use his best endeavors to obtain the appointment of the firm to certain offices, and that the emoluments thereof should be treated as part of the partnership profits in direct violation of that covenant, the covenanting partner procured certain offices which fell within the covenant to be given to himself alone; and upon that the Court held that the other partner was entitled to a decree for dissolution, and to charge the defendant with the value of the offices in the accounts. That was a totally different case from the present; and James v. Ellis has still less to do with the matter.

Mr. Southgate, in reply.

430] *July 22. LORD ROMILLY, M.R., having stated the facts, continued:

I am of opinion that, under these circumstances, the contract formed part of the partnership assets, and there must be a declaration accordingly. The question then arises, how it is to be dealt with. There is a proviso which prevents the defendant from assigning it, and therefore it cannot be sold; and as that cannot be done, a value must be put on it in the best way you can. I shall therefore refer it to Chambers to ascertain the value of the contract.

MINUTES OF DECREE:- Declare that the contract dated the 28th of February, 1868, formed a portion of the assets of the partnership heretofore subsisting between the defendant and Benjamin Ambler, deceased. Declare that the said Benjamin Ambler and the defendant respectively were, and that the plaintiffs, as legal personal representatives of the said Benjamin Ambler, and the defendant now are, entitled to the profits made by and arising from the said contract, and all and singular the assets of the partnership business as from the commence ment of the said partnership up to and including the 31st day of March, 1868, in equal shares, and as from the 1st day of April, 1868, in the proportions following that is to say, the said Benjamin Ambler and the plaintiffs, as his legal personal representatives, were and are entitled to three equal eighth parts thereof, and the defendant is entitled to five equal eighth parts thereof. The decree then directed, amongst others, the following accounts: An account of all the partnership assets, estate, and effects. And in taking such account, the value of the said contract of the 28th day of February, 1868, with the postmastergeneral at the date hereof is to be ascertained. And in taking such accounts the defendant is to be charged with three-eighths of such value.

Solicitors: Mr. T. Donnithorne; Messrs. Allen & Edwards.

The plaintiff, the publisher of a work which he claimed to have originated, called The Birthday Scripture Text Book, consisting of a printed diary interleaved, with a blank space opposite each day with a text of Scripture appended, and which was designed as a record of the birthdays of friends:

Held, entitled to an injunction to restrain the defendants from publishing and selling a work subsequent to the plaintiff's, called The Children's Birthday Text Book, on the ground that it was an infringement of the plaintiff's copyright in the title of his work, as well as a colorable imitation of the same.

THIS was a suit by a publisher and bookseller to restrain the publication and sale by the defendants, a firm of publishers, of a work alleged to be an infringement of the plaintiff's copyright. The plaintiff was the proprietor and publisher of a book called The Birthday Scripture Text Book, of which there had been several editions, and he claimed to have the exclusive property and copyright in the said publication long prior to the printing or publication by the defendants' firm of another book called The Children's Birthday Text Book.

The plaintiff alleged that the Birthday Scripture Text Book was a very popular work, and had attained great notoriety under that title; that the whole idea and arrangement of the work was originated by himself, and was entirely novel at the time whren the work was first published, and that he had derived large profits from such publication.

The said Birthday Scripture Text Book consisted of a printed diary, interleaved with writing paper, so arranged as to give a blank space for writing upon opposite to each day in the diary, and underneath each date was a text of scripture, with a verse of a hymn. The book was designed as a record of the birthdays of friends, and in order that they might inscribe their names on the blank leaves opposite to the pages bearing the date of their respective birthdays.

The bill alleged that the defendants had, since the publication of the plaintiff's said book, published and sold a work [432 under the title of The Children's Birthday Text Book, arranged upon precisely the same plan as that of the plaintiffs' publication, and in fact imitated therefrom in most particulars, but differing in the selection of texts and verses, and with a colorable difference in the title, and that the preface was in part, if not altogether, pirated from the plaintiffs' work; also that it was published in a form closely resembling the plaintiffs' work in

appearance, and so as to induce incautious purchasers to believe that the two works were the same.

The bill prayed that the defendants might be restrained by injunction from printing, publishing, selling, or exposing for sale the said Children's Birthday Text Book, or any other book or publication bearing the same title as the plaintiff's said publication, or such title with only a colorable variation, or containing the preface prefixed to the plaintiff's said publication, or any parts thereof, or any book or publication so printed, bound, arranged, or contrived, as by colorable imitation or otherwise to represent or lead to the belief that such book or publication was the same as the said Birthday Scripture Text Book.

The defendants submitted that there could be no copyright in such a title as that given to the plaintiff's work, or in the general design of the publication; that they were fully entitled to publish the Children's Birthday Text Book, and that the plaintiff was not entitled to come to the Court for an injunction to restrain them from its publication or sale.

Mr. Fry, Q.C., and Mr. Ingle Joyce for the plaintiff, referred to Hogg v. Kirby (1): Spottiswoode v. Clarke (2); Jarrold v. Houlston (3); Chappel v. Davidson ('), Braham v. Bustard (5).

Sir R. Baggallay, Q.C., and Mr. Westlake, for the defendants: There can be no copyright in the name of The Birthday Scripture Text Book, any more than in such a name as Daily Text Book, or Christmas Text Book, or New Year's Text Book. The only ground for the interférence of the Court would be if it could be shown that by the publication of the defendants' work the pub433] lic *had been misled, and induced to believe that it was identical with the plaintiff's. This, we submit, the plaintiff has failed to establish, and is therefore not entitled to any relief. LORD ROMILLY, M.R. :

I am of opinion that the plaintiff is entitled to an injunction. The defendants would be at liberty to publish a Daily Text Book, and so far to adopt the scheme of the plaintiff's work; but it was the plaintiff's own idea to have a text book associated with a birthday, and so to adapt it to those sentiments of religion with which most persons regard a day which marks the completion of another year of their lives. The plaintiff is entitled to a copyright in the use of the title, Birthday Text Book, whatever other words may be associated with it, and the defendants must be restrained from the publication of their work, and they are not entitled to publish a work with such a title, or in such a form as to binding or general appearance, as to be a colorable (1) 8 Ves., 215. (2) 2 Ph., 154. () 3 K. & J., 708. () 1 H. & M., 447.

(*) 2 Ibid., 123.